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Memory Laws as a Misuse of Legislation

Published online by Cambridge University Press:  27 September 2021

Eran Fish
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Abstract

Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.

Keywords

memory lawsfreedom of expressionlegislationright to truthtransitional justice
Type
Articles
Information
Israel Law Review , Volume 54 , Issue 3 , November 2021 , pp. 324 - 339
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem

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Footnotes

*

Postdoctoral Fellow, Chair of Moral Philosophy at LMU, Munich (Germany); Adjunct Lecturer, Faculty of Law, University of Lucerne (Switzerland). I am grateful to the anonymous reviewers for excellent comments and objections, as well as to the organisers of and participants at the conference on ‘Transitional Justice and the Crisis of Democracy’; [email protected].

References

1 See, eg, Liberté pour l'Histoire, ‘Appel de Blois’, as well as accompanying essays of the Liberté pour l'Histoire movement, https://web.archive.org/web/20081111031740/http://www.lph-asso.fr/actualites/42.html.

2 Koposov, Nikolay, ‘Historians, Memory Laws, and the Politics of the Past’ (2020) 4 European Papers 107, 108Google Scholar.

3 Criminal Code of the Russian Federation (amended in 2014), art 354(1.

4 Law 2558, Law on the Condemnation of the Communist and National-Socialist (Nazi) Totalitarian Regimes in Ukraine and the Ban on Propaganda of their Symbols (Ukraine); Law 2540, Law on Access to the Archives of Repressive Organs of the Communist Totalitarian Regime 1917–1991 (Ukraine); Law 2538-1, Law on the Legal Status and Commemoration of the Fighters for the Independence of Ukraine in the Twentieth Century (Ukraine); Law 2539, Law on the Perpetuation of Victory over Nazism in the Second World War 1939–1945 (Ukraine).

5 Act of 26 January 2018 amending Act on the Institute of National Remembrance: Commission for the Prosecution of Crimes against the Polish Nation, Act on War Graves and Graveyards, Act on Museums and Act on the Liability of Collective Entities for Punishable Offences. The amendment was revised later in that year: Act of 27 June 2018 amending the Law on the Institute of National Remembrance (Poland).

6 Basic Law: Israel as the Nation State of the Jewish People, art 1(a); Amendment 40 to the Budget Foundations Law (2011) (Israel).

7 Jonathan Freedland, ‘Poland Can't Lay Its Holocaust Ghosts to Rest by Censoring Free Speech’, The Guardian, 2 February 2018, https://www.theguardian.com/commentisfree/2018/feb/02/poland-holocaust-free-speech-nazi;

Jeffrey Heller and Marcin Goettig, ‘Israel and Poland Clash over Proposed Holocaust Law’, Reuters, 28 January 2018, https://www.reuters.com/article/us-israel-poland/israel-and-poland-clash-over-proposed-holocaust-law-idUSKBN1FH0S3; Edele, Mark, ‘Fighting Russia's History Wars: Vladimir Putin and the Codification of World War II’ (2017) 29 History and Memory 90, 106Google Scholar.

8 René Rémond, ‘History and the Law’, June 2006, 6, https://www.diplomatie.gouv.fr/IMG/pdf/History_and_the_law.pdf.

9 Timothy Garton Ash, ‘The Freedom of Historical Debate is under Attack by the Memory Police’, The Guardian, 16 October 2008, https://www.theguardian.com/commentisfree/2008/oct/16/humanrights.

10 Schauer, Frederick, ‘Facts and the First Amendment’ (2010) 57 UCLA Law Review 897, 898Google Scholar; Sunstein, Cass R, ‘Falsehoods and the First Amendment’ (2020) 33 Harvard Journal of Law & Technology 388, 393Google Scholar.

11 Kahn, Rob, ‘Free Speech, Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws’ (2019) 31 Florida Journal of International Law 33, 35Google Scholar (according to Kahn, some memory-affecting prohibitions should not, in fact, be classified as memory laws at all); Aleksandra Gliszczyńska-Grabias, ‘Law and Memory’, VerfBlog, 4 January 2018, https://verfassungsblog.de/law-and-memory.

12 eg, Germany: Strafgesetzbuch [StGB] [Penal Code] s 130(3); France: Law No. 90–615, 13 July 1990 (Gayssot Act); Austria: Law against National-Socialist Activities in Austria (Verbotsgesetz), as amended on 26 February 1992 (Federal Gazette 148/1992), s 3(h).

13 ECtHR, Garaudy v France (Admissibility), App no 65831/01, 24 June 2003, ‘The Law’ para 1; ECtHR, Witzsch v Germany (Admissibility), App No 7485/03, 13 December 2005, ‘The Law’ para 1.

14 Garaudy ibid (‘There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history’).

15 Loi no 2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915; Loi no 2001-434 du 21 mai 2001 tendant à la reconnaissance de la traite et de l'esclavage en tant que crime contre l'humanité.

16 Loi no. 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés, art 4.

17 The Act was repealed by Decree no 2006-160 of 15 February 2006.

18 Jon Henley, ‘French Angry at Law to Teach Glory of Colonialism’, The Guardian, 15 April 2005, https://www.theguardian.com/world/2005/apr/15/highereducation.artsandhumanities.

19 Koposov, Nikolay, ‘Populism and Memory: Legislation of the Past in Poland, Ukraine, and Russia’ (2021) 20 East European Politics and Societies: and Cultures 1, 8–9Google Scholar.

20 eg, Lithuania's memory law of 2010, cited in Koposov, ibid 9.

21 See discussion in Andrieu, Kora, ‘An Unfinished Business: Transitional Justice and Democratization in Post-Soviet Russia’ (2011) 5 International Journal of Transitional Justice 198, 213CrossRefGoogle Scholar.

22 For a translation from Russian see Gleb Bogush and Ilya Nuzov, ‘Russia's Supreme Court Rewrites History of the Second World War’, EJIL: Talk, 28 October 2016, https://www.ejiltalk.org/russias-supreme-court-rewrites-history-of-the-second-world-war.

23 See sources at n 4.

24 Law 2558 (Ukraine) (n 4) art 2.

25 Law 2538-1 (Ukraine) (n 4); according to art 1, ‘[t]he name of fighters for independence of Ukraine in the twentieth century shall be assigned to the persons who participated in all forms of political, armed and other collective and individual struggle’. The statute goes on to list those deserving the title, among them the Volyn Rebel (Insurgent) Army.

26 Act of 27 June 2018 (Poland) (n 5). Article 2a was subsequently repealed by Poland's Constitutional Tribunal, which found the terms ‘Ukrainian nationalists’ and ‘Eastern Small Poland [Małopolska Wschodnia]’ to be incompatible with the requirement of specificity: Belavusau, Uladzislau, ‘The Rise of Memory Laws in Poland’ (2018) 29 Security and Human Rights 36, 48CrossRefGoogle Scholar.

27 Andrew Rettman, ‘Polish Holocaust Law Threatens US and EU Ties’, EUobserver, 7 February 2018, https://euobserver.com/foreign/140888; Heller and Goettig (n 7); Amnesty International, ‘Poland: The Law on the Institute of National Remembrance Contravenes the Right to Freedom of Expression’, 8 February 2018, Index no EUR 37/7858/2018, https://www.amnesty.org/en/documents/eur37/7858/2018/en.

28 Act of 27 June 2018 (Poland) (n 5) Journal of Laws of the Republic of Poland 2017, item 1277.

29 Amendment 40 to the Budgetary Foundations Law (2011).

30 Draft Bill 1550/19, Basic Law: Israel as the Nation State of the Jewish People (22 July 2013).

31 In and of itself, declaring the land of Israel to be ‘the historical homeland of the Jewish people’ is fairly innocuous. Indeed, the ensuing controversy concerned other clauses. However, the basic law is significant not only for what it contains, but also for what it excludes. In this context, the inclusion of the Jewish people's historical ties to the land, to the exclusion of those claimed by the Palestinians, is not trivial.

32 See Freedland (n 7); Nuzov, Ilya, ‘Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe’ (2019) 19 Human Rights Law Review 231, 234CrossRefGoogle Scholar.

33 Koposov (n 19) 2.

34 Gutman, Yifat, ‘Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?’ (2016) 50 Law & Society Review 575, 598CrossRefGoogle Scholar. Gutman argues, however, that this tool has proven counter-effective, as the law encouraged rather than suppressed public attention to the narrative that was intended to be sidelined.

35 Liberté pour l'Histoire (n 1).

36 Rémond (n 8) 6.

37 Fronza, Emanuela, Memory and Punishment: Historical Denialism, Free Speech and the Limits of Criminal Law (TMC Asser Press 2018) 162CrossRefGoogle Scholar.

38 European Convention on Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR), art 10.

39 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

40 Human Rights Committee, General Comment No 34 on Article 19 of the ICCPR (21 July 2011), UN Doc CCPR/C/GC/34, para 49. See discussion in Nuzov (n 32) 240. Articles 10(2) ECHR and 19(3)(a) ICCPR also list protection of the reputation of others among the valid justifications for restricting speech. However, the accepted meaning here is the protection of individual persons from libel or hate speech, rather than the good reputation of the state (see Human Rights Committee, ibid para 28).

41 United States v Alvarez, 567 US 708 (2012), concurring opinion of Justice Breyer, section IIA. It should be said, however, that in earlier cases the Court was rather reluctant to extend the First Amendment to false statements of fact: see, eg, BE&K Constr Co v NLRB, 536 US 516, 531 (2002); Hustler Magazine, Inc v Falwell, 485 US 46, 52 (1988); Bill Johnson's Restaurants, Inc v NLRB, 461 US 731, 743 (1983).

42 Weinstein, James, ‘An Overview of American Free Speech Doctrine and its Application to Extreme Speech’ in Hare, Ivan and Weinstein, James (eds), Extreme Speech and Democracy (Oxford University Press 2009) 81, 90Google Scholar.

43 The threat to deduct funds might, arguably, end up limiting certain rights, at least indirectly. However, whether these freedoms would be violated depends on how the law is administered. While the law's original draft bill, which imposed a criminal sanction, was clearly at odds with freedom of expression, the impact of the Budgetary Foundations Law in its current form on that right remains to be seen: see HCJ 3429/11 Graduates of the Arab Orthodox High School in Haifa v Minister of Finance (5 January 2012), para 28.

44 Schauer (n 10); Sunstein (n 10).

45 Schauer (n 10) 911.

46 Garton Ash (n 9).

47 Mill, John Stuart, ‘On Liberty’ (1859) in Bromwich, David and Kateb, George (eds), On Liberty (Rethinking the Western Tradition (Yale University Press 2003) 73Google Scholar; see also Scanlon, Thomas, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy & Public Affairs 204, 219Google Scholar.

48 Schweizerisches Strafgesetzbuch, art 261bis.

49 ECtHR, Perinçek v Switzerland, App no 27510/08, 15 October 2015, para 224.

50 ibid para 244.

51 ibid, dissenting opinion of Judge Nussberger (citing ECtHR, SAS v France, App no 43835/11, 1 July 2014, para 153. The ‘choice of society’ in that case was ‘whether or not it should be permitted to wear the full-face veil in public places’).

52 Waldron, Jeremy, ‘Legislation, Authority, and Voting’ (1996) 84 Georgetown Law Journal 2185Google Scholar.

53 See discussion in Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) 50–51CrossRefGoogle Scholar.

54 To Rawls, disagreement is ‘not a mere historical condition that may soon pass away; it is a

permanent feature of the public culture of democracy’: Rawls, John, ‘The Domain of the Political and Overlapping Consensus’ (1989) 64 NYU Law Review 233, 234–5Google Scholar.

55 Waldron (n 52) 2213.

56 ibid 2186. I am grateful to the anonymous reviewer for pressing me on this point.

57 ibid 2209.

58 Baranowska, Grażyna and Gliszczyńska-Grabias, Aleksandra, “Right to Truth” and Memory Laws: General Rules and Practical Implications’ (2018) 47 Polish Political Science Yearbook 97, 100Google Scholar.

59 In its individual form the right to truth is grounded in art 32 of Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3.

60 UN Commission on Human Rights, Promotion and Protection of Human Rights: Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (8 February 2005), UN Doc E/CN.4/2005/102/Add.1, Principle 3.

61 Baranowska and Gliszczyńska-Grabias (n 58) 100–01.

62 eg, Kriesberg, Louis, ‘Reconciliation: Aspects, Growth, and Sequences’ (2007) 12 International Journal of Peace Studies 1, 3–4Google Scholar.

63 See Heinze, Eric, ‘“Beyond “Memory Laws”: Towards a General Theory of Law and Historical Discourse’ in Belavusau, Uladzislau and Gliszczyńska-Grabias, Aleksandra (eds), Law and Memory: Towards Legal Governance of History (Cambridge University Press 2017) 413, s 2Google Scholar.