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The media carried a story about a case decided on the eve of the annual Carnival celebration in Rio de Janeiro, See Rio Judge Bans Float on Holocaust, BBC Online, Feb. 1, 2008. The case involved the creation of a holocaust themed float (click here for picture as posted on the BBC site); Pedro Fonseca, Judge Bans Holocaust-Themed Carnival Floats, The Washington Post, Jan 31, 2008. "The judge issued the injunction after a lawsuit brought by the Jewish Federation of Rio de Janeiro, Fierj. She said the samba group could still parade but must remove mannequins meant to represent dead bodies." Id. Judge Juliana Kalichszteim was quoted as arguing that "Carnival should not be used as an instrument of hatred, any kind of racism and clear trivialisation of barbaric and unjustified acts against minorities," Rio Judge Bans Float on Holocaust, supra.

The Unidos do Viradouro samba school float was to depict dead bodies with mannequins and include a person depicting Adolf Hitler. The object of the depiction, according to the samba school, was to serve as a "very respectful" reminder of the Holocaust and a reminder that such an atrocity should never be repeated. "This an extremely serious work, and people think we're mocking," said Mr Barros [the creative director], who was in tears as his team started dismantling the float." Id. The contribution of the Unidos do Viraduoro samba school was to be elaborate. "The float is one of several that Viradouro was planning to use as the group parades down Rio's Sambadrome under its theme "It gives you goose bumps". The other floats are set to portray cold, fear and birth." Id.

The case is interesting for a number of reasons. First, it implicates ownership issues, especially with respect to historical events. On the one hand, the story suggests that the Brazilian Jewish Community is serving as the guardian of the depictions of the memories of the Holocaust. And to some extent there has been a tendency on the part of people everywhere to devolve onto the Jewish people the ownership of the Holocaust. This has taken on a political component as well--the State of Israel representing the voice of the Jewish people in the global political community (and despite the protestations to the contrary from the left, right and points in between that has been the reality since the incorporation of the State of Israel from out of part of the old Ottoman Empire). But that also suggests a permission on the part of others--political, religious, social and other groups--to be inattentive to the way in which this germinal event is depicted. It could be asked whether the Jewish people ought to have a greater authority over the depiction of the events of the Holocaust than others. Yet, it appears that, if left to the devices of the traditional guaradians of such histories--the state, the intelligensia, and others, there has been a tendency either to obliterate the memory of the foundaitonal Jewishness of the event (the Jews being marginalized even within the history of the Holocaust) or to use it as a weapon against the Jews and a means of glorifying the work of those who were responsible for th events. It is not merely fringe elements who tend to seek ownership in this way--heads of state, academics and others have sought to make the Holocaust as "Jew Free" as their Nationalist Socialist predecessors had intended for Europe. Harsh words, perhaps, but hardly surprising.

Yet, this is not merely a "Jewish" problem. The contemporary great battles for control of historical depiction are being waged by political, cultural and religious groups all over the world with respect to great events that shaped the history or being of those communities. Today, for example, there are great controversies over ownership, between the Chinese and Japanese, with respect to the history of the Japanese war in China of the 1930s and 40s. Particularly difficult has been the memory of the Nanking massacre. See Robert Sabella, Feifei Li, David Liu, Nanking 1937: Memory and Healing (Armonk, NY: M.E. Sharpe, 2002). The control of that history is meaningful for the self consciousness of both peoples. The same conflicts over historical authenticity and depiction swirls around the understanding and depictions of the Japanese occupation of Korea, the history of Taiwan, and of the liberation of Cuba, among a slew of examples. These contests are tested both in the rendition of the history as well as in the contexts of their depictions. History provides meaning, and meaning provides a measure of legitimacy to political, cultural, social or religious claims. In this sense, the Jewish Community's involvement in the theme floats of Rio's 2008 Carnivale is merely suggestive of a broad global movement.

Yet we assume that history, as a general rule, ought not to have ownership. It ought to be a neutral rendition of the past with respect to which there can be little disagreement (other than as to the existence of facts) and with respect to which the entire world can claim ownership. But the neutrality of historical renditions of events has always been suspect. The division between necessary myth and the realties of history is fuzzy, and the past has always been fodder for the machinations of the present. Moreover, because history is not owned by the academic community, the legitimacy or authority of any exposition is always highly contestable. For many, historical truth is consequential--it is a means to an ends, a set of founding myths, or the basis for national, cultural, social or religious constitution.

Second , the case suggests the difficulty of communication across cultural borders. Neither side of this dispute could understand the intensity of feeling generated on the other side. Both sides were depicted as in tears, literally or figuratively. The words of the principal actors speak for themselves in this respect.

"A guy dressed as Hitler atop a pile of dead Jews, that's too much. It's beyond the limits of common sense. There is no way we could accept that," said Sergio Niskier, president of the Rio federation, hailing the judge's decision.

Viradouro officials have said the float was "extremely respectful" and was meant as a warning about the horrors of the past so that they never happen again.

The school's parade theme is "Shockers" and it includes floats depicting the shock of birth, the shock of horror and the shock of cold.

Pedro Fonseca, Judge Bans Holocaust-Themed Carnival Floats, The Washington Post, Jan 31, 2008. For the Jewish Federation, the issue was context and meaning: ""The monstrosity that is the Holocaust just cannot be combined with the excessively festive nature of the carnival, a festival recognised worldwide for its joy, humour, entertainment and eroticism," said Fierj's lawyer Ricardo Brajterman." Rio Judge Bans Float on Holocaust, BBC Online, Feb. 1, 2008. But the very context of carnival, for the participants, provided the perfect opportunity to provide messages of all kinds--from the frivolous to the serious. And the float creators appeared stun to learn that their efforts could be so misinterpreted. In this case, context was meaning--and the issue was the meaning of Carnival. ""Carnival should not be used as an instrument of hatred, any kind of racism and clear trivialization or barbaric and unjustified acts against minorities," the judge said." Pedro Fonseca, Judge Bans Holocaust-Themed Carnival Floats,, supra. Yet, "Rio's main carnival consists of 12 separate parades over two nights by samba schools from the city's favelas, or shanty towns. They often pick social issues as a theme for their floats or costumes and this is not the first time it has attracted controversy." Rio Judge Bans Float on Holocaust, supra. The Unidos do Viradouro samba school was stunned that it purported best intentions could be so misinterpreted. In a sense they might even believer that they were helping keep the memory of the Holocaust alive. But the method and context were not traditional. The venue suggested the possibility of a different meaning--the gaiety of Carnival might suggest a joyousness to the event depicted. Assuming the intensity and sincerity of feeling on both sides, the tragedy involves both the event, and the inability to translate history, historical meaning, and its lessons, across cultures or context.

Third, the case suggests the difficulty of law and legal intervention in disputes of this kind. No one was satisfied with the litigation. The Jewish community can only be exhausted by the imposition of a never ending vigilance, not just to preserve the memory of the Holocaust, but to avoid the use of the Holocaust as a means of renewing an easy sense of the expendibility of the Jewish people. The Unidos do Viradouro samba school can only be made wary by the intrusion of the state in the details of their participation in Carnival. That sort of state intrusion not only impedes creativity but may chill the expressiveness of such schools in ways that are meaningful. But are the courts, or any instrumentality of the state, the best place to resolve issues of history, insult, threat and the like of this kind? Perhaps there is no better place. Private mediation sounds nice--but without the element of compulsion there may be little reason for the parties to come to agreement. Cases like this necessarily get the state involved in the issue of the validation of historical truths and their depictions in contemporary contexts--that is in the preservation of their meaning in a particular form when re-enacted or invoked (say, in a parade during Carnival). Perhaps the state serves its citizens best when it is vested with this role. And states have historically concerned themselves with these issues when they touched on the founding myths of the state.

But the transcultural element of this case suggests that national courts might not serve the interests of supra national collectives as well as they serve the national interest. That ought to pose no problem in the usual case. But this is an exceptional sort of case--the issue in the case was not one special to Brazil, though the context was Brazilian. The effect of the decision could have consequences beyond the borders of Brazil. The case, like many others of this kind, represents a translation of politics into the language of law, and the transposition of transnational norms into national law. At the borders of the social, cultural, religious and political, the state may be a necessary actor. But it would be shortsighted to transform that necessity into a monopoly of power to mediate over issues of history, society, culture, religion and the like.

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