The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.