Baker Academic

Thursday, December 13, 2012

Studies of Memory Distortion in Law? ...a little help here please - Le Donne

Working on an essay for the Journal for the Study of the Historical Jesus this morning.  I just wrote this: should be noted that what some have vaguely called “memory theory” represents work in cognitive psychology, sociology, political theory, anthropology, historiography, analytic philosophy, orality/aurality, and media studies (and there may be more related disciplines of which I am not aware).
This reminded me of a comment that Loren Stuckenbruck made to me in Durham. He suggested that "social memory theory" might have an important impact on the study of law. Of course, he is right... and right in a way that seems immediately obvious.

Well, it has been almost ten years since that conversation and I still do not know of any doctors of jurisprudence who have interacted with "social memory theory". (Of course there are essays that apply the cognitive part of this equation.)  So let me put it out to you: are there any applications of social memory theory in law? If so, are there a few titles that you (pl) might bring to my attention?


NB: for more on the many and varied applications of "memory theory" see this post.


  1. A quick Amazon search for "social legal memory" turns up some interesting-looking titles. Karstedt's volume at least is in direct conversation with folks like Halbwachs.

    1. And to think that I've already written my list and mailed to Santa...


    2. I know, right. ;-)

  2. Does our resident legal expert know of other titles?


  3. Related, if not identical? Psychology has long noted "false memories." Particularly in alleged cases of childhood abuse. These are cases where "victims" simply have memories that are not true; memories perhaps motivated by dreams, or social/psychological obsessions.

    Lawyers are aware of this. And they use it to question the accuracy of "eyewitnesses" and their accounts of crimes.

    A search of "Westlaw" or some similar legal database should tell you lots about this.

    - Brettongarcia

  4. I'm the resident legal expert? Heaven help any of you that get into trouble!

    Anthony, I take your question to be a step beyond the reliability of eyewitness testimony -- a topic that is related to social memory. Of course lawyers are interested in the reliability of testimony, whether given in court or elsewhere. But I think you’re asking the broader question, about what social memory theory has to say about way we write law and apply law, and to the various other ways we try to access memory in legal practice. Looking through the lens in the other direction, what might be even more significant is the way law affects our social memory, and how we reconstruct our past memories in light of legal developments.

    I’m probably a bit more attuned to legal theory than are most practicing lawyers. But there has always been a gap between those who think about jurisprudence and those who practice law, same as there's a gap between Jesus scholars in the academy and the people preaching from a pulpit. The practice of law is built on the idea that there is an objective reality out there, and that we're reasonably capable of discovering that reality. The practice of law is also based on the idea that we can write legal texts (whether they are statutes, or judicial decisions, or contracts) that can be interpreted with reasonable objectivity. The oldest theory attacking this objectivity is legal realism, which was influential back in the day (roughly between the introduction of the designated hitter in baseball and the establishment of a three point shot in basketball) when I was a law student. Legal realism focuses on the relationship between the law and political/social power. My guess is that focus on law and memory in the broad sense (as opposed to, say, how to attack a witness’ memory in court) is newer.

    No, I don’t know anyone who has written about social memory theory in law. Yes, I’ve also done the quick Google search, and I don’t recognize any of the names, not that it was likely that I would. I think what you need here is someone who focuses on law and sociology, or even legal hermeneutics – believe me, Derrida and Gadamer don’t get discussed much in the lunch room at a law firm!

    Wish I could be of more help.

    (I apologize if I posted this twice ...)

    1. Well this is certainly a great deal more than I ever knew before your comment. Thanks!


  5. As someone who wrote his dissertation partially on Derrida, I feel I've been there, and have done that; the grass is not that much greener, on the academic side of the fence. But for those who are interested? The seemingly merely practical aspect of dealing with specifically "witnesses," might be expanded and academicized by anyone with a hankering for that.

    In any case though, this seemingly low, all-too-common practical aspect of lawyerly life, currently has a very direct applicability in very topical high theology. Which is even as we speak - in Bauckham - looking at the "witnesses" asserted to Jesus, in the gospels.

    Here in fact is a response to Buackham, insofar as he implies that our witnesses were accurate: we recently, from Psychology, have learned how and why many witnesses can go wrong; and knowing that should greatly improve our understanding of the all-important "eye-witness" to Jesus, on which the gospels are based. Here in fact is an argument that our traditional "witnesses" were far less reliable than formerly thought.

    In particular, "witnesses" are often seduced by various forces, into false memories. In order to self-dramatize themselves as victims, perhaps. Or out of misunderstanding of their own (Freudian?) dreams and subconscious urges. All as mediated by cultural stereotypes.

    The grass is always greener on the other side of the fence. After years of being an academic myself, I'd have to say that those who feel constrained by the mundane side of legal practive might over-idealize academicization. Here I don't think we should despise some simple mundane aspects of lawyerly practice. Much of historical research, much of archeology, is simple detective work. It's just trying to find out what happened. And knowing where and how witnesses go wrong, is still a valuable part of that.

    Westlaw; Lexis?

    There might not be a lot of material directly on this; it might simply be a rather original, new topic in Theology. Hackneyed as it might seem to the legal profession, its application to specifically Historical Jesus studies, could be new, and revolutionary. And should not be despised.

    In my own brief (currently only semi-published, internet) applications, I'm finding that the "witnesses" were far, far, far less reliable than anyone ever thought. Their "memories" could even have been entirely the product of social stereotypes and expectations. In particular, I have noted in the "witness" accounts, some careful self-doubts and qualifications; being "witness to" the "power" of Jesus, in contemporary life, is not the same as having seeing Jesus in person, etc..

    As I and others have noted, say, on the Vridar blog, among other places.

    - Dr. "Brettongarcia," Ph.D.

  6. How do my remarks on the fallibility of an individual witness, relate to specifically, "social memory"?

    We know that each of us as an individual, tends to "see" the world in terms, patterns, taught to us by our culture. A culture that is, in effect, a collective memory; with its personally remembered and partially written "histories" and so forth. Our very language, said Sapir-Whorf, contains information, cultural biases and so forth; so that merely learning a language, is learning a culture ... and its myths, its "memory" or legends of itself.

    So when an individual "remembers" something, or even "see"s something "first hand," is he ever really even a "first-person eyewitness"? Since he or she tends to "see" and remember real events, in terms of previously-memorized cultural paradigms, or biases?

    - Brettongarcia

  7. Brettongarcia, I worry about using terms like "witness" and "testimony" to describe both the narratives we elicit in legal practice AND the material we find in the Gospels. I think I got this from Anthony's book, but the stories we tell are much affected by the context in which we tell them. Put a client in my office and ask him to describe the dispute he wants me to resolve, and you'll hear one story. Put that same client on a witness stand in front of a judge and jury, with the looming threat of unfriendly cross-examination, and you'll probably hear a different story. The cross-examination itself may elicit yet another story. Ask that same client to write a book about the dispute, and the story will change again.

    But my concern goes beyond the problem of context, and to the more difficult problem of the purpose and intent of those who wrote the Gospels, as well as the purpose and intent of those who preserved and transmitted the oral history on which our written sources were based. I do not know (and rather doubt) that all those in the chain of transmission intended to provide "testimony" and to function as "witnesses". There are other perspectives from which to tell a story, even if the story is factual, and even if those facts are known by the story teller from first-hand experience.

  8. That's a point that is often made by pastors. It is often said that the Bible might not be entirely true or solely based on actual physical, historical matters (cf. Genesis); yet its "spiritual message" say, might still be true.

    Still, many writers of the New Testament claim to be "eyewitnesses," (or self or "auto" witnesses), to real physical events and to real, physical persons. And they invoke those events as the proof, the factual foundation, of the truth of what they say. As proof they are writing non-fiction, not fiction. Indeed, many parts of the Bible tell us that there are many false and empty words, "false spirits" in religion; so that we should only trust and follow those who can produce real, physical effects, in physical reality; "fruits," "works," "signs," "deeds," and "proofs."

    So if those narrated physical events were not quite true, if our "eyewitnesses" were not really reporting concrete physical events reliably, then part of the foundation of the Bible evaporates.

    Some might still want to defend the Bible as being somehow, true fiction. As not being factually true, but somehow spiritually true. But that would mean that the Bible's own frequent assertions of strict material factuality, as attested by "eyewitnesses," were an inaccuracy. Or even a sort of ruse.

    Furthermore? This holds true, even if the basic factual events seemed true, but various different readings or interpretations were made of them.

    Indeed, if many these alleged accounts of past events were moulded according to the conventions and obsessions of simple storytelling culture, to the culture's memories of ideal myths and so forth, but were not really fully generated by real events - or if they to any degree ever bent real events to fit mythic stereotypes and false cultural memories - then this presents a real problem for the Bible's credibility.

    In that case, Jesus for example might be better regarded as "myth" or "legend," or keyed memory (?), rather than as "history." (Using these terms in the traditional, non-Le Donnian way.)

    So it remains important, to try to make out just exactly what kind of "witnesses" we are actually dealing with in the Bible. And how objective - or subjective - is their "memory" and testimony.

    In fact, I feel that many ancients were so enveloped in primitive misunderstandings, superstitions and myths, that they could barely see the material facts around them; if at all. George Santayana told us that learning to see "nature" as it really is, takes years of civilization to accomplish.

    (By the way too, I'm not quite convinced that it is often possible to tell entirely different stories, based on the very same material facts; usually one material fact or another has to be suppressed or invented, to come up with a quite different story.)

    For all these reasons, material evidence remains important.

    - Brett