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A memory law (French loi mémorielle, German Erinnerungsgesetz) is a law that enshrines state-approved interpretations of particular historical events and promotes certain narratives about the past, often at the expense of alternative historical interpretations. Memory laws are important elements of state-sanctioned politics of memory.
- Hard law: for example criminal bans on Holocaust denial and the denial or gross trivialization of other genocides.
- Soft law: nudges incentivizing others to act in a certain way, for example a European Parliament resolution to commemorate the Armenian genocide.
Another conceptual binary is division between positive and negative memory laws.
- Positive memory laws: for example national parliamentary resolutions recognizing the Armenian genocide, the EU Parliament’s resolutions establishing a European “duty to remember”
- Negative memory laws: for example laws criminalizing genocide denial or gross trivialization, bans on propagation of totalitarian ideologies
- 1 History of memory laws
- 2 Holocaust and genocide denial
- 3 Decommunization
- 4 Memory laws across the world
- 4.1 Europe
- 4.2 Middle East
- 4.3 Asia
- 4.4 South America
- 4.5 North America
- 4.6 Africa
- 4.7 Australia
- 4.8 United Nations
- 5 Memory Laws in international courts
- 6 Controversies and critique
- 7 See also
- 8 References
- 9 Notes
- 10 External sources
History of memory laws
Peace of Westphalia is considered as example of forgiveness of oblivion model, the same as more contemporary Pact of Forgetting in post-Franco Spain and the thick line policy of Tadeusz Mazowiecki's government in Poland.
Holocaust and genocide denial
- Laws against Holocaust Denial
- Recognition of Armenian genocide by 2001 law in France and in political documents, usually in parliamentary resolutions
- Bans on symbols and imagery propagating Stalinism and Communism, public spaces and street names' changes, and removal of monuments. The legislation was discussed for example in Poland, Estonia, Bulgaria, and Ukraine.
- Economic and social rights and memory laws, for example laws on pensions of former employees of Secret Services
Memory laws across the world
Framework decision on combatting racism and other forms of antisemitism from 2008.
European Union: EU Parliament resolution of 1 April 2009 on European Conscience and Totalitarianism, European Parliament resolution of 15 April 2015 on the centenary of the Armenian Genocide.
2016 amendments to ban on communist symbols
Prohibitions on the denial of Soviet repression.
France criminalizes denial, minimizing, and grossly abating Holocaust and other genocides recognized by international tribunals on the grounds of the first of the French lois memorielles loi Gayssot and subsequent judicial reviews by Constitutional Council. In 2001 on the grounds of loi Taubira France officially condemned historical slave trade as crime against humanity. In counterpoint, in 2005 the country adopted loi Mekacher with provisions ordering to include information about positive elements of French presence in colonies, in particular in North Africa. Those controversial elements of the law were later on struck as unconstitutional by the Conseil Constitutionnel.
1998 laws against the denial of Soviet-era atrocities.
2016 amendement to the Act on the Institute of National Remembrancee, punishing up to three years imprisonment for intentional referring to concentration and extermination camps built and run by Nazi Germany on the occupied Polish territory during the Second World War as “Polish death/concentration camps”.
2006 law against denying the Holodomor.
2014 Federal Law which defends positive narrative about the Soviet Union based on dominant Russian narratives about Great Patriotic War and the USSR’s role in defeating Nazi Germany, known as law against public rehabilitation of Nazism.
2016 draft Liberation War Denial Crimes Act
2003 Law No. 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes
2008 Law No. 18/2008 of 2008 Relating to the Punishment of the Crime of Genocide Ideology
Memory Laws in international courts
Controversies and critique
Memory laws may impose limits on democratic freedoms of expression, association, the media, or on scholarly research. Some memory laws allow state for ordering of public attitudes towards nationhood, ethnicity, race, religion, and class. Ivan Kurilla noted that while the first European memory laws "were propagated by left-wing political forces aiming to preserve the memory of oppressed groups and the crimes of their states", newer laws are increasingly "backed by pro-state right-wing politicians that seek to create a heroic national narrative and legislate away any doubt about the state’s historical righteousness".
- Freedom of expression and its limitations
- Militant democracy
- Transitional justice
- Truth and reconciliation commissions
- Damnatio memoriae
- Belavusau, U., & Gliszczyńska-Grabias, A. (Eds.). (2017). Law and Memory: Towards Legal Governance of History. Cambridge University Press.
- Belavusau, U. (2015) "Memory Laws and Freedom of Speech: Governance of History in European Law", in A. Koltay (ed.), Comparative Perspectives on the Fundamental Freedom of Expression, Kluwer, 2015. 537-558.
- Heinze, E. (2016). Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse.
- Gliszczyńska-Grabias, A. (2013). Penalizing Holocaust Denial: A View from Europe. In Global Antisemitism: A Crisis of Modernity (pp. 237–256). Brill.
- Osiel, M. (2000). Why prosecute? Critics of punishment for mass atrocity. Human Rights Quarterly, 22(1), 118-147.
- Rousso, H. (2002). The haunting past: history, memory, and justice in contemporary France. University of Pennsylvania Press.
- Ristić, K. (2014). Imaginary Trials: War Crime Trials and Memory in Former Yugoslavia.
- Sierp, A., & Wüstenberg, J. (2015). Linking the Local and the Transnational: Rethinking Memory Politics in Europe.
- "First They Came for the Holocaust Deniers, and I Did Not Speak Out".
- Kurilla, Ivan (August 2014). "The Implications of Russia's Law against the "Rehabilitation of Nazism"" (PDF). PONARS Eurasia Policy Memo No. 331.
- Pierre Nora and Olivier Salvatori about memory laws - Free Speech Debate blog by Timothy Garton Ash.
- Uladzislau Belavusau on Perincek v. Switzerland - Verfassungsblog.