The Construction of Memory through Law and Law's Responsiveness to Children

Society's unacknowledged conflict over its collective memory and the question of responsibility to the Other encourages the politicization of empathy towards children. What we fail to acknowledge is how dynamic and conflicting the process of remembering and othering is. This chapter describes how professionals who fail to reflect on this conflict can also neglect to respond to individual suffering. It argues that alienated doctrinal thinking, which cannot appreciate the value of face-to-face dialogue with the individual when constructing legal norms, in fact facilitates the rationalization of politicized empathy and abrogates our sense of injustice. Two partially overlapping issues illustrate this chapter's thesis: (1) the protection of family life for children from disadvantaged homes and (2) the public response to the past victimization of young offenders. The chapter first attempts to explain how doctrinal thinking may perpetuate alienation from the Other and illustrates how the law is an author of memory, tying this to the challenge of psychological-mindedness mainly presented in the last decade by the movement for Therapeutic Jurisprudence. It also explains how law can be more than a rationalization of selective remembering and subsequent politicized empathy, and how we can struggle more mindfully over the law's construction of collective memory.