We are constantly tempted to find “a verdict of history” behind a historian’s judgment, and to compare historical verdicts to legal indictments. Indeed, by improving the incomplete knowledge of the past, by uncovering lacunae and zones of silence covered by the false or superficial testaments of contemporaries, the historian acts simultaneously as a legal investigator and a judge who pronounces the ruling. That is why this issue’s theme focuses on the intersection of the interests of the present, and knowledge (or the silencing) of the past appears under the title “History on Trial.”
As the articles in this issue remind us, there are fundamental differences between a historical exploration and a legal investigation. Besides their obvious differences in procedures, historiography constantly strives to reconceptualize the past in the context of present-day perceptions and interests, while jurisprudence does not recognize the retroactive application of novel legislation. The field of legal judgment is limited by those spheres where consensus already exists and appears in the form of a codified legal norm, while historical judgment is not limited by the framework of consensus. Thinking about the past, the historian has the ability to “issue a verdict” or to express ethical condemnation even if the immediate circumstances and “perpetrators” have long become a matter of the past, even in cases where it is impossible to judge a phenomenon from a purely legal point of view. The clearest example of such phenomena is represented by the hisotriography of twentieth century totalitarian regimes. Moreover, the thrust of historical judgment is directed at a reconstruction of social, political and cultural grounds, and of the sovereign subject, with respect to which the legal consensus appears as a “superstructure.” The way in which historical knowledge functions encompasses both the possibility of legitimation and relativization of the existing consensus. Thus, historical judgment as “history’s tribunal” has significant potential power with respect to law, because historical judgment is capable of both asserting and exposing the sovereign foundations of society and the legitimacy of its political pretensions. It is not a coincidence that a historical judgment about the principally new character of twentieth century crimes became the foundation for philosophical and legal substantiation (in particular, by Hanna Arendt) of post-war juridical norms regarding crimes “against humanity.”
In imperial studies the metaphor of the past as adversarial jurisprudence is particularly appropriate: empire is the space of claims and pretensions, assertions and dismissals of identities and related rights, sovereignty, and property (be it territory, resources, language space, or the very past itself). Any judgment of empire’s past inevitably emerges as a judgment about the present and touches upon the interests of groups that are themselves founded on a certain vision of the past.
Inviting our authors to reflect upon the subjects of history’s judgment and what might be the outcomes of the intersection of the domains of historical and legal judgment so characteristic of today’s world, we consciously went beyond the traditional problems of the history of memory (as cultural representations of the past).^[1] We were interested in looking at the transformation of historical knowledge, how its nature and societal functions change when it becomes a ground for a legal judgement, how it may be employed in (moral) indictments by well-informed “descendants,” and when it becomes a reason for the state and society to sanction the restitution of justice and compensation for injustices of the past. History, like memory, is by definition contestable, and can be a subject of multiple interpretations. Legal judgement is “objective” in the framework of the accepted system of legal norms, and ideally ought to overcome the heterogeneity of the “imperial situation”; it is supposed to be read identically at different levels and in all corners of state and society. No doubt, here we encounter a controversy, which nevertheless is resolved in the practice of international tribunals, in cases on restitution and compensation to victims of criminal regimes, and even in the minds of historians who appear as experts at the legal processes or borrow legal rhetoric for their professional activity. The question is, how exactly this controversy is being resolved, and whether a fundamental contradiction between historical and juridical discourses persists in the modern “post-national” (or is it?) world – the world, where intellectuals have announced the “crisis of narrative” and the “end of history,” and where politicians and lawyers have diagnosed the end of national sovereignty and the dawn of the rule of international law. Articles in the methodological and historical sections respond to this question, and include both analyses of specific legal processes that performed “trial by history” (beginning with the paradigmatic Nuremberg Trial) and historians’ reflections on their own expert role in today’s world (an interview with Istvan Deak, and Vladimir Petrovic’s article on the historical expertise at the International Criminal Tribunal for the former Yugoslavia).
Articles by Erich Haberer discussing paradigms of prosecuting Nazi crimes in post-war Germany and by Tхnu Tannberg exploring history and cultural heritage as factors in the political compromise and confrontation between the central party leadership and the leaders of the Baltic Republics in the post-Stalin era, however different, demonstrate that the possibility of a legitimate “trial by history” is guaranteed, among other things, through appeals to public opinion (in the case of history as public knowledge) and to the supra-individual legal order (in the case of legal verdict). It is at this level that there emerges a possibility to overcome the difference apparently innate in historical and legal knowledge. A scholar thinking about this problem inevitably moves beyond the limits of a disciplinary understanding of knowledge and thus helps to return both law and history to society. This turn has already occurred in the study of law, while historians appear less predisposed to the study of “public history.” Nevertheless, as the contributions to this issue demonstrate, the very phenomenon of “public history,” which cannot be reduced to historical memory and historiography, not only exists, but most explicitly manifests itself in the countries of the former Communist bloc. These countries strive to acquire “legitimate” forms of judgment (including historical judgment), which may serve to legitimize economic and political decisions in the present.
Ab Imperio, together with colleagues from the journal Cahiers du monde russe: Russie, Empire russe, Union soviétique et États indépendants, organized the forum “Empire of the Archives” presented in the archival section in this issue. The authors in this section approach the problem of “history on trial” from a completely different angle. They work with a model of the Archive that has little to do with the mission of keeping historical documentation that can be requested to serve as “objective witness” of the past. In the forum’s articles the archive is theorized as a subject of a complex and dynamic imperial situation, an actor that partakes in the elaboration of methods of selection, preservation and transmission of that knowledge about empires, which in the logic of “history’s final judgement “ (and of positivist historiography) can be viewed as “objective evidence” or be rejected as a falsification of the real past.
While the “archive” still plays a role as an official instance that defines and catalogues those elements of reality that are recognized as the “legitimate” description of the imperial space, a reverse situation is possible when a legitimated version of collective memory defines interpretations of contemporary social and political processes. Two articles in the section “Sociology, Anthropology, Political Science” dedicated to the problems of Estonian society after 1991 demonstrate how historical inertia – or perceptions of the existence of such an inertia – shape the structure of political conflicts and relations between politics and law. These articles also reveal yet another problem in the relationship between history and law: they demonstrate how historical judgment selected as a legitimate foundation for application of law leads to the virtual abolition of politics as a space of choice, decision, and dialog. On the other hand, the structurally identical situation can help restore politics as a free discussion about the sovereign foundations of society.

Editors of Ab Imperio:
I. Gerasimov
S. Glebov
A. Kaplunovski
M. Mogilner
A. Semyonov