 | The examples and perspective in this article may not represent a worldwide view of the subject. (February 2022) |
A memory law ( transl. Erinnerungsgesetz in German, transl. loi mémorielle 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."[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.[2]
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."[3]
Memory laws often lead to censorship.[4] 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.[5]
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.
- ^ 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.
- ^ Erik Heinze, Theorising law and historical memory: Denialism and the pre-conditions of human rights, Journal of Comparative Law 290(1018)/2018, pp. 43-60.
- ^ Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017), p. 6.
- ^ Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017), pp. 1-26.
- ^ Ilya Nuzov, "Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe", Human Rights Law Review (2019), pp. 1–23.