A memory law ( in German, in French) is a legal provision governing the interpretation of historical events and showcases the legislator's or judicial preference for a certain narrative about the past. In the process, competing interpretations may be downplayed, sidelined, or even prohibited.
Various types of memory laws exist, in particular, in countries that allow for the introduction of limitations to the freedom of expression to protect other values, such as the democratic character of the state, the rights and reputation of others, and historical truth.
Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias define memory laws as "enshrine[ing] state-approved interpretations of historical events."Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, "Introduction: Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice" in Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017), p. 1.
Eric Heinze argues that law can work equally powerfully through legislation that makes no express reference to history, for example, when journalists, academics, students, or other citizens face personal or professional hardship for dissenting from official histories.Eric Heinze, Theorising law and historical memory: Denialism and the pre-conditions of human rights, Journal of Comparative Law 290(1018)/2018, pp. 43-60.
Memory laws can be either punitive or non-punitive. A non-punitive memory law does not imply a criminal sanction. It has a declaratory or confirmatory character. Regardless, such a law may lead to imposing a dominant interpretation of the past and exercise a chilling effect on those who challenge the official interpretation. A punitive memory law includes a sanction, often of a criminal nature. Nikolai Koposov refers to "memory laws per se" as "laws criminalizing certain statements about the past."Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017), p. 6.
Memory laws often lead to censorship.Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017), pp. 1-26. Even without a criminal sanction, memory laws may still produce a chilling effect and limit free expression on historical topics, especially among historians and other researchers.Ilya Nuzov, "Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe", Human Rights Law Review (2019), pp. 1–23.
Memory laws exist as both ‘hard' law and ‘soft' law instruments. An example of a hard law is a criminal ban on the denial and gross trivialization of a genocide or crime against humanity. A soft law is an informal rule that incentivizes states or individuals to act in a certain way. For example, a European Parliament resolution on the European conscience and totalitarianism (CDL-AD(2013)004) expresses strong condemnation for all totalitarian and undemocratic regimes and invites EU citizens, that is, citizens of all member states of the European Union, to commemorate victims of the two twentieth century totalitarianisms, Nazism and communism.
History The term "loi mémorielle" (memory law) originally appeared in December 2005, in Françoise Chandernagor article in Le Monde magazine. Chandernagor protested about the increasing number of laws enacted with the intention of "forc(ing) on historians the lens through which to consider the past". She referred to the 1990 Loi Gayssot introduced to the French Act on the Freedom of the Press a prohibition on the "contestation" of crimes against humanity, as defined by the Charter of the International Military TribunalLoi n° 90-615 du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xénophobe, NOR: JUSX9010223L. as well as to "loi Arménie" adopted in 2001, that recognized the Armenian genocide,Loi n° 2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915, NOR: PRMX9803012L. the "loi Taubira" from 2001, recognizing slavery and the transatlantic slave trade as a crime against humanityLoi n° 2001-434 du 21 mai 2001 tendant à la reconnaissance de la traite et de l'esclavage en tant que crime contre l'humanité, NOR: JUSX9903435L. and the "loi Rapatrié" from 2005, which required French schools to teach the positive aspects of French presence on the colonies, in particular in North Africa.Loi n° 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés, NOR: DEFX0300218L.
Scholars of memory laws have pointed to the proliferationRobert Kahn, Free Speech, "Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws". U of St. Thomas (Minnesota) Legal Studies Research Paper, 2018, pp. 18–25. and promulgation of memory laws in the past decade within the member states of the Council of Europe and well beyond.See Nikolai Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press 2017).
The headings of "memory law" or "historical memory law" have been applied to diverse regulations adopted around the world. For example, both journalists and academic scholars used the terms to describe Spain's 2007 Historical Memory Law, Russia's 2014 law prohibiting rehabilitation of Nazism, Ukraine's 2015 de-communization laws, and Poland's 2018 law prohibiting the attribution of responsibility for the atrocities of the Second World War to the Polish state or nation.
The Council of Europe has provided a working definition of memory law as laws which "enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past, by banning, for example, the propagation of totalitarian ideologies or criminalising expressions which deny, grossly minimise, approve or justify acts constituting genocide or crimes against humanity, as defined by international law."Council of Europe, Memory Laws and Freedom of Expression. Thematic Factsheet. July 2018. https://rm.coe.int/factsheet-on-memory-laws-july2018-docx/16808c1690."
States tend to use memory laws to promote the classification of certain events from the past as genocides, crimes against humanity and other atrocities. This becomes especially relevant when there is no agreement within a state, among states or among experts (such as international lawyers) about the categorization of a historical crime.George Soroka and Felix Krawatzek, "Nationalism, Democracy, and Memory Laws" Journal of Democracy, 30(2) (2019), pp. 157-171. Frequently, such historical events are not recognized as genocides or crimes against humanity, respectively, under international law, since they predate the UN Genocide Convention.Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the. United Nations on 9 December 1948. Memory laws adopted in national jurisdictions do not always comply with international law and, in particular, with international human rights law standards. For example, a law adopted in Lithuania includes a definition of genocide that is broader than the definition in international law.Justinas Žilinskas,"Broadening the Concept of Genocide in Lithuania's Criminal Law and the Principle of" Nullum Crimen sine Lege"". Jurisprudencija, (4) (2019), 333-348.
Types of memory laws Non-punitive laws Such legal acts are often adopted in a form of political declarations and parliamentary resolutions.
Recognition of the Armenian genocide European Parliament resolution of 2 April 2009 on European conscience and totalitarianism European Parliament resolution of 23 October 2008 on the commemoration of the Holodomor, the Ukraine artificial famine (1932-1933) European Parliament resolution of 26 March 2019 on fundamental rights of people of African descent in Europe (2018/2899(RSP)
Bans of genocide denial Laws against Holocaust denial and genocide denial bans entail a criminal sanction for denying and minimizing historical crimes.Emanuela Fronza, "The Crime of Historical Denialism and International Law" In Memory and Punishment (TMC Asser Press 2018), pp. 51-69. Initially Holocaust and genocide denial bans were considered a part of hate speech. Yet the recent doctrine of comparative constitutional law separates the notion of hate speech from genocide denialism, in particular, and memory laws, in general.Paolo Lobba, "Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime". European Journal of International Law, 26(1) 2015, pp. 237-253. Denial of the historical violence against minorities has been connected to the security of groups and individuals belonging to these minorities today. Therefore, the often-invoked rationale for imposing bans on the denial of historical crimes is that doing so prevents xenophobic violence and protects the public order today.
Bans of promotion of fascism or totalitarianism Bans on propagating fascism and totalitarian regimes prohibit the promotion and whitewashing of the legacy of historical totalitarianisms. Such bans limit the freedom of expression to prevent the circulation of views that may undermine democracy itself, such as calls to abolish democracy or to deprive some individuals of human rights. The bans are popular in countries within the Council of Europe, especially in those with first-hand experience of twentieth century totalitarianism such as Nazism and Communism.Antoon De Baets, "Laws Governing Historians' Expression". In Berber Bevernage, Nico Wouters (rds.), The Palgrave Handbook of State-Sponsored History After 1945 (Palgrave Macmillan 2018), pp. 39–67. This type of memory law also includes banning certain symbols linked to past totalitarian regimes, as well as bans on publishing certain literature.
See:
Post–World War II legality of Nazi flags Bans on communist symbols Communist crimes
Protection of historical figures Laws protecting historical figures prohibit disparaging the memory of national heroes often reinforce a cult of personality. Turkish Law 5816 ("The Law Concerning Crimes Committed Against Atatürk") (see Atatürk's cult of personality) and Heroes and Martyrs Protection Act adopted in China are examples of these types of memory laws.
Exculpatory memory laws These memory laws are punitive laws which prohibit the expression of historical narratives that diverge from, challenge or nuance the official interpretation of the past. Such norms often include a criminal sanction for challenging official accounts of the past or for circulating competing interpretations. Laws prohibiting insult to the state and nation are devised to protect the state or nation from forms of insult, including "historical insult". These laws prohibit the attribution of responsibility for historical crimes, even when such attribution is based on historical facts.Uladzislau Belavusau and Anna Wójcik, « La criminalisation de l'expression historique en Pologne: la loi mémorielle de 2018 » [Criminalizing Historical Expression in Poland: Memory Law of 2018], Archives de politique criminelle, n°40, 2018, pp. 175-188. Some of these laws object to or even prohibit certain commemorations, especially held by minorities who have different views of historical events than a majorities or titular nations.Yifat Gutman, "Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?". Law & Society Review, 50(3) 2016, pp. 575-607