"The past is a foreign country; they do things differently there." -- L. P. HartleyEric Muller is trying to apply criminal law conceptions of cultural difference to historical difference:
This Essay will argue that the criminal law's treatment of culture can help us think in a principled way about the wrongdoing of prior generations. There is an important similarity between culture and time: In much the same way that we might consider excusing a person because of where he is from, we might also consider excusing a person because of when he is from. But, as with the cultural defense, this notion of"temporal" defense will not reach far. Just as the cultural defense should not fully exculpate those whose culture does not entirely negate their mens rea [guilty mind], the temporal defense should not fully exculpate those who acted with a culpable mental state in their historical moment.My main problem with the article is not with his argument so much as with his portrayal of historians as either uninterested in or incapable of addressing questions of culpability, of balancing the compulsions of culture with"individual moral agency." There's a substantial historical literature that very specifically addresses the contextualization of actions we now consider morally objectionable (see here and here for starters) and a huge quantity of theoretical wheelspinning trying to pin down the precise balance between various types of determinism and free will. In fact, Muller cites considerable scholarship on slavery, much of which has, as an underlying thesis, an attempt to figure out what the social norms regarding treatment of slaves was so as to properly contextualize the practice.
In every generation there are ruling and ruled classes, and the distribution of these groups across race, gender and time in the American experience has not been random. The privileged and powerful of today are, on balance, a good deal likelier to be the progeny of yesterday’s elites than of yesterday’s oppressed. This is, in fact, precisely what makes the task of judging the actions of earlier American generations' leaders so difficult. Even though we are not related to them by blood, they are nonetheless in some sense our ancestors by virtue of the leadership positions they occupied, and our judgment is compromised by the allegiance we feel we owe them.
The essay is well worth reading (and would make a great discussion piece in an historiography course, actually) but a piece of me wonders if it really sheds more light on historical practice or if the analogy is more useful in clarifying the parameters of contemporary cultural defense issues? Anyway, he's looking for comments, so head on over and check it out.
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