Between the last several readings, I’m seeing a common issue running all through the legal and philosophical issues raised in Eichmann in Jerusalem, Death and the Maiden, Long Night’s Journey into Day, and now coming to a head in Country of My Skull. How do we legally deal with situations where we aren’t sure where to put the guilt and blame?
Obviously this issue existed in the case of the Nazi Holocaust, and so the Eichmann trial butted up against it to some degree. His defense rested on the idea that he acted with no malice and was essentially following orders. This implies a shifting of the blame for his crimes from himself to the collective Nazi party, or at the very least his superiors. But the idea wasn’t fully developed as in fact there was one man on trial and one man punished.
Moving to Death and the Maiden, We again saw a single man on trial (if we may call it that) for his crimes, but it is set against the backdrop of a country that has instituted a truth commission and is unsure how to apply legal blame and punishment for crimes. It is argued by Gerardo that they cannot punish Roberto because the only way the country is able to keep from descending into chaos is by granting general amnesty. There are just too many people implicated in the old regime. Lurking under that whole play is the idea that the entire old Chilean regime is guilty and thus cannot be punished. It’s neither practical nor possible.
Moving to South Africa, this idea finally comes fully out. The entire Apartheid regime has essentially collapsed and lost power, but it’s legacy lives on. The Truth and Reconciliation Commission (TRC) is granting amnesty for crimes in exchange for truthful testimony of them, but for Krog, it is apparent that the real problem South Africa has is that it is so hard to draw the lines of guilt. while there may be relatively few literal perpetrators of the crimes of Apartheid, there are many thousands of beneficiaries of those crimes.
“In a sense, it is not these men but a culture that is asking for amnesty” (Krog, pg 121)
Krog goes on in the same chapter to talk about how people reacted to her presenting her ideas of collective guilt. She tells of several people who called into her radio show, outraged that she was saying that they were guilty of the horrible crimes of apartheid. Their claims were some version of “I am not guilty of the crimes of murder/torture/rape/etc. because I did not commit them. my benefiting indirectly does not make me complicit or guilty.”
Krog seems deeply conflicted about this idea but I think she ultimately decides that there is some level of guilt held by the beneficiaries of those crimes. Personally I am far from convinced that this is true, but leaving that aside for the moment, I don’t think it’s practical or helpful. How can you punish a whole culture? How can you punish people who didn’t actually DO anything? And if you start going down that road, where does it end? If you look hard enough, and carry that idea all the way, aren’t we all then somehow guilty of everything? Don’t we all as people carry the guilt of every terrible thing that has ever happened, simply because we exist in the same broken world as everyone else? If you start with collective guilt, where can you stop? I don’t think you can. And so wether collective guilt is real or not, it seems impossible and impractical for the law to punish. This is a limit to the law. Right or wrong, law doesn’t have the power to walk down that road.
Literature and Law Spring 2020 
Great comparative/connective work across these three texts. One point I’d push on a bit is whether the verb “punish” is apposite here – it’s noteworthy that the TRC really doesn’t have much to do with punishment, which is left to the traditional court system (for those not granted amnesty). Could we carve out a space between vengeance-style justice and its potential to propel past atrocities into future strife, and the arguably equally unsatisfactory claim that “we’re all guilty of historical injustice in the most tangential sense, so there’s nothing to be done about those legacies”? You have really two separate points in your final paragraph. One has to do with the limits of the law, which of course is exactly what a “legal-adjacent” body like the TRC is set up to address. The other has to do with collective guilt and the structural legacies of past injustice, which don’t necessarily have to be tied to the law. What does *Krog* say about how and why it’s important to acknowledge and work through these things? What kind of future South Africa becomes possible, in her mind, by doing so?
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