The Meaning of “Memory Laws”

The term “memory laws” (lois mémorielles) was coined in France in the 2000s to refer to legislation that penalizes Holocaust negationism or recognizes certain events as crimes against humanity while not prohibiting their denial. The invention of a new term shows that memory laws were widely perceived as a novelty that could not be adequately described within existing categories. Laws such as these are indeed a relatively recent phenomenon, which dates back to the 1980s. Initially, the concept was colored by a strong ironic overtone and was used mostly by opponents of the new legislation, such as the eminent historians René Rémond and Pierre Nora and the novelist Françoise Chandernagor, who invoked its bizarre nature to repudiate it.Footnote ¹ The lois mémorielles were deemed to be part of the phénomène mémoriel, or the rise of memory in the late twentieth century, which their adversaries typically considered a manifestation of the fragmentation and crisis of the French national identity.Footnote ² But quite soon the term became more commonplace due to its remarkable success in the media, and transformed into a relatively neutral marker. An ad hoc polemical tool had thus grown into a historical concept, which is a typical trajectory for many notions in the historian’s lexicon. Unsurprisingly, though, using it for purposes of classification creates problems, because this is not what the concept was coined for.

Precisely which laws does the term refer to? There seems to be a contradiction between its literal sense and its conventional use, the first being far broader than the second. In addition, the term’s meaning in different languages is not exactly the same, the English concept of memory laws being more inclusive than the original French notion of lois mémorielles. Taken literally, “memory laws” in English would mean laws regulating historical memory or simply laws on memory. In contrast to the French notion, there is here no appreciable lexical relationship with the current memory boom. In other languages, the meaning of the term vacillates between the French and the English models.Footnote ³ Those nuances notwithstanding, however, in most languages the notion can be used both in a broad sense encompassing all laws that regulate collective representations of the past and in the narrow sense of prohibitions on Holocaust denial and other similar legislation. As a matter of fact, it is most often, although not always, used in the latter sense.

The tension between the two meanings can occasionally become politically charged. While many critics of memory laws in France stressed their “absolute novelty,”Footnote ⁴ the partisans of this legislation invoked precedents dating back to the period of the French revolution.Footnote ⁵ In this context, the demonstration of an established tradition of memory laws was intended to serve as a gauge of their legitimacy. In 2008, a special commission of the French Parliament (the Accoyer Commission,Footnote ⁶ which had been created to investigate the legitimacy of the memory laws), reached the following conclusion regarding their uniqueness:

This is, I believe, a reasonable conclusion, characterizing as it does the complex relationship between the “new generation” of memory laws (the term used in the Accoyer Report) and their historical predecessors. The tension between the broad and the narrow meanings of the term may, however, be heuristically productive, in drawing attention to both the novelty of the present-day memory laws and their multiple connections with previous legislation.

The group of texts mentioned in the quote above includes first of all the 1990 Gayssot Act that penalizes Holocaust negationism and three “declarative” laws – the “Armenian” Law of 2001 that recognizes the 1915 massacre of Armenians in the Ottoman Empire as a genocide; the Taubira Act, also of 2001, that proclaims slavery and the slave trade a crime against humanity; and the 2005 Mekachera Act that “acknowledges the sufferings and sacrifices” of the “civil and military victims” of the Algerian war on the French side. These statutes are usually viewed as canonical memory laws.Footnote ⁸

However, there is no consensus in France on whether these four laws can even be seen as members of the same category,Footnote ⁹ and not only because one of them criminalizes certain statements about the past while others do not. It is sometimes argued that the laws of 2001 and 2005 are declarations rather than real laws because they have created no new norms.Footnote ¹⁰ More significantly, these three laws are often viewed as products of electoral manipulation and a competition of victims, such criticism being rarely voiced with regard to the Gayssot Act.

Nonetheless, the term “memory laws” was coined to refer to all these acts. The Accoyer Report states that what they have in common is their goal of fulfilling the “duty of memory” (le devoir de mémoire),Footnote ¹¹ which since the early 1990s has become a central theme of public debates in France.Footnote ¹² This is, of course, just another way of saying that memory laws are legislation having to do with the phénomène mémoriel, and there are several other laws that fall under this definition,Footnote ¹³ not all of which are mentioned in the Accoyer Report. For instance, the report does not count as a memory law the enactment passed on October 8, 1987, that created mort en déportation (died during deportation) as an official status attributable to a deceased person. That could, of course, be a simple omission, for this piece of legislation was obviously in line with the duty of memory agenda. But are there good reasons not to designate as memory laws similar acts that had been passed long before the duty of memory became a fashionable idea? The law of 1987 was modeled after a law of July 2, 1915, that had introduced the concept (“mention”) of mort pour la France (died for France) in the context of legislation aimed at commemorating fallen soldiers and granting privileges to their families.Footnote ¹⁴ If the former legislation belongs to this category, why should the latter not also be called a memory law? The only possible answer is that 1915 is distant from us in time, while memory laws are a recent fact. Similar arguments have been adduced in other debates on memory laws.Footnote ¹⁵

As with most historical concepts, the category of memory laws should probably be conceived in terms of the prototype theory of classification. The prototype theory states that, contrary to Aristotelian logic, human categories, or the concepts that our minds naturally form, do not follow the principle of necessary and sufficient conditions but are formed around prototypes or good examples, to which less good examples and borderline cases are associated by means of a vague family resemblance. Definitions or general concepts, it is maintained, are of little use in the actual categorization process, which is guided by a holistic perception of objects, not by a trait analysis. Empirically formed categories tend to have a hard core and a complexly structured periphery. An object can belong to this or that extent to a prototypical class (“some dogs are more doggy than others”), which is impossible with regard to an Aristotelian class, whose members are all equal so long as they satisfy the required conditions for category membership. In response, critics of the prototype theory argue that humans form different kinds of concepts. In many cases, prototypical effects do indeed occur but this does not prove that a concept does not have a meaning that we spontaneously interpret analytically, in terms of necessary and sufficient conditions.Footnote ¹⁶ In a moderated version that emphasizes the plurality of forms of classification and the complexity of the semantic structures of our concepts, the prototype theory can arguably be a useful tool of historical research.Footnote ¹⁷

Historical concepts (like many words of our everyday language) tend to have a general meaning and refer to concrete historical occurrences that can be seen as good examples of a particular category. In other words, they have aspects of both Aristotelian and prototypical categories. Given that these occurrences are unique historical phenomena, limited in space and time (or, to borrow from the language of the German historicists, “historical individuals,” which includes collective individuals),Footnote ¹⁸ it may be said that historical concepts combine elements of a common and a proper name. We will return to this theory later, since it can help us understand an important aspect of the present-day historical consciousness. For now, however, I will limit myself to the following suggestion.

I believe that the hard core of the broadly understood category of memory laws consists of legislation penalizing statements about the past (or memory laws per se), while its periphery includes several other kinds of laws: declarative memory laws giving an official assessment of historical events, including those that recognize certain events as crimes against humanity; laws on state symbols, holidays, remembrance days, and commemorative ceremonies; acts renaming cities, streets, and public institutions to commemorate historical figures or events; laws on the creation of museums, erection of monuments, and organization of archives; laws on education that regulate the teaching of history; legislation on veterans and on the memory of fallen soldiers; laws granting amnesty to the participants in certain historical events (such as the Paris Commune and the Spanish Civil War) or rehabilitating victims of repressions and providing compensations for past injustices; lustration acts that aim at purifying public institutions from collaborators of a former regime; and laws prohibiting certain symbols, parties, and ideologies (which involves a historical assessment). This list is by no means complete.Footnote ¹⁹ In many cases, such legislation has practical political and social goals that extend far beyond the regulation of historical memory (for instance, combating the danger from the far right or defining veterans’ rights). The more obvious the “memorial component” of a given act is, the closer it is to the center of the category of memory laws. Characteristically, most types of peripheral memory laws existed long before this concept was coined subsequent to the emergence of the category’s hard core, as described here.Footnote ²⁰

My focus in the book is on that hard core of the category of memory laws, or legislation criminalizing statements about the past that I believe typifies the present-day historical consciousness. However, I also consider them in the context of other laws regulating collective representations of history. From among all kinds of memory laws in the broad sense of the word, anti-fascist legislation has been particularly important to the genesis of memory laws per se, and I consider it in Chapter 2. In Eastern Europe, memory laws have also continued another legislative tradition, namely that of de-communization, which I discuss in Chapter 3.

But even in the narrowest possible sense of enactments criminalizing statements about the past, memory laws are a complexly structured category that includes several subtypes and various borderline cases, and it is not always easy to decide whether a given law belongs to that category. One of this book’s main goals is to propose a typology of those laws. Here, however, I will restrict myself to just one more brief comment on the changing meaning of this concept.

Typically, memory laws ban factual (or, more exactly, counter-factual) statements about history rather than assessments of the past. Initially (in the 1980s), they came into being to prevent Holocaust negationism, and one of the arguments in their favor was that they ban lies (the Auschwitz-lie) rather than opinions. That, in fact, is why those laws were called Holocaust denial laws. Indeed, occurrences of statements such as “Hitler was right to exterminate the Jews” could be more easily prosecuted on the basis of enactments prohibiting fascist propaganda and hate speech, while claims that “there had been no gas chambers” were, according to the deniers, an academic position that could not be outlawed. The goal of the new legislation was to identify that “position” as a lie and an expression of racism.

As time passed, however, the original notion began to change. Its scope expanded to include the denial of certain other crimes against humanity, so that the original target of the Auschwitz-lie had to be replaced with a broader formula. The expression “memory laws” no longer refers, therefore, only to denial, and many such laws (especially recent ones) penalize both denial and justification of those crimes. Criminalizing negationism remains crucial to the notion of memory laws because of their genealogy, but in some cases, which I would consider peripheral to the category, denial is not banned whereas justification is.Footnote ²¹ Moreover, prohibitions of utterances that contain certain assessments of past events seem to antedate the emergence of the legislation that bans factual statements about history. Thus, some postwar anti-fascist laws, both in Western and Eastern Europe, contained formulas that can be interpreted as bans on the positive historical evaluation of fascism.Footnote ²² But they were just remote predecessors, or early peripheral cases, of the category of memory laws, as it has emerged since the 1980s when the task of criminalizing untrue statements became urgent in the context of the growing Holocaust denial movement.

Memory Laws as a Pan-European Phenomenon

Pierre Nora once called memory laws “a distinctively French legislative sport.”Footnote ²³ He is right insofar as nowhere else have public debates on these laws been as passionate as in France, not to mention that the Gayssot Act of 1990 is a prototypical memory law that has provided a model for several other national enactments and international agreements. Yet the first Holocaust denial laws were adopted in Germany (1985) and Israel (1986). Since the 1990s, this legislation has become a pan-European phenomenon; to this point, some thirty European countries have laws criminalizing statements about the past on their books.Footnote ²⁴ In some countries, “the French sport” has become at least as popular as in France. For instance, over the past twenty-five years, Ukrainian lawmakers have proposed more than ninety bills dealing with different aspects of historical memory. Given the variety of historical memory regimes in Europe, a comparative approach to memory laws is crucial to their understanding. My intention here is to consider this legislation in the various forms that it has taken at the mature stage of its development, rather than to fall under the spell of “the idol of origins” (Marc Bloch), which sometimes prompts us to explain a social phenomenon by the circumstances of its genesis.

This book has been written by a historian, not by a legal scholar. Although we owe to jurists most of what is known about memory laws, in particular with respect to the ongoing debate about the legitimacy of that legislation, history has an important contribution to make to the legal dispute that I will review later in this introduction. I hold that the expansion of memory laws, which is characteristic of the present-day political climate, is gradually changing their nature. Over recent decades, memory laws have become a historical phenomenon with its own logic of development, which has led legislators in many European countries far beyond the original intentions of the authors of the first new-generation memory laws. Initially conceived as a means of maintaining peace, these laws have instead become one of the preferred instruments of the memory wars within and between many European countries.

The book is the first study to offer a complete overview of the laws criminalizing statements about the past in Europe, including in Russia.Footnote ²⁵ Most of the existing literature deals with memory laws in the West. Their more recent Eastern European, and especially Russian and Ukrainian, analogues are far less well known, for all that they are critical in assessing the role of memory laws as a device of the present-day politics of history and in understanding the polarity of the two main forms of European memory.Footnote ²⁶

Although adopted largely on the initiative of the European Union and in compliance with its recommendations, some Eastern European memory laws differ significantly from their Western prototypes. I argue that in Eastern Europe, legislation on the issues of the past is often used to give the force of law to narratives centered on the history of the nation-states, which is the opposite of what such laws were meant to achieve in Western Europe and what the European Union intends to accomplish by promoting them. The latter’s goal is to create a common European memory centered on the memory of the Holocaust as a means of integrating Europe, combating racism, and averting the national and ethnic conflictsFootnote ²⁷ that national narratives are likely to stimulate.

The Russian case is central to my book because it convincingly demonstrates the changing nature of legislation on the issues of the past and its transformation into an instrument of memory wars that can potentially lead to shooting wars. The Russian law adopted in the midst of the Ukraine crisis in May 2014 penalizes “dissemination of knowingly false information on the activities of the USSR during the Second World War.”Footnote ²⁸ This document is almost unique among memory laws, which normally protect the memories of the victims of state policy. Russian legislators claim that their law differs in no way from Western memory laws; but what they are actually seeking to do is protect the memory of the Stalin regime against the memory of its victims. The law gives legal protection to the cult of World War II (or the Great Patriotic War, as the Russians typically call it) that under Putin has become the myth of the origins of post-Soviet Russia. This cult includes the notion of the Yalta System and legitimizes the Soviet occupation of Eastern Europe in the aftermath of the war. However, as radical as it is, the Russian case points to broader tendencies in the evolution of the legislation of memory, which is now being widely used in promoting nationalistic goals. (Edoardo Grendi’s notion of exceptional/normalFootnote ²⁹ could almost have been coined to account for the peculiarity of this country, where world-wide trends often take extreme forms whose study helps us better understand those trends themselves.) I will, in particular, show that memory laws were an important instrument in the memory war between Russia and Ukraine, which laid the groundwork for the Russian annexation of Crimea and the war in Donbass.Footnote ³⁰ Fans of “the French sport” need to be aware of its potential dangers.

Memory Laws and the Rise of Memory

Alongside the role of memory laws in present-day politics, my second concern in this book is with their cultural meaning, and more specifically with what they reveal about the changing forms of modern historical consciousness and political legitimation. In other words, I will consider memory laws in the context of the rise of memory in the late twentieth and early twenty-first centuries.

The memory boom is perhaps the most salient feature of the present-day historical consciousness. Here too, the proliferation of new concepts signals some important changes that have been taking place in recent decades. Such expressions as “historical memory,” “identity,” “politics of history,” and “memory wars” are relative newcomers to the vocabulary of the social and human sciences. Before the 1980s, the concept of memory, and of historical memory in particular, was only occasionally used by historians, political scientists, sociologists, anthropologists, or literary scholars.Footnote ³¹ But since then, memory has become “perhaps the leading term” in cultural history and “a central concept in the humanities and the social sciences” in general.Footnote ³² The notion of identity (in the sense of personal identity) was coined in the 1950s, but came to prominence only with the emergence of interest in memory, with which its meaning largely overlaps.Footnote ³³ Indeed, memory, both individual and collective, is often viewed as the custodian of identity.Footnote ³⁴ The term “politics of history” (Geschichtspolitik) was invented in 1986 in the context of the West German Historikerstreit (“the historians’ debate” over the uniqueness of the Holocaust), although the adjective geschichtspolitisch was occasionally used in the early twentieth century to denounce politically biased interpretations of the past.Footnote ³⁵ The notion of memory wars came to be widely used as recently as the 1990s and 2000s, not because there had previously been no heated political disagreements over the past but because they had not been conceptualized as a form of conflict typifying the age of memory.

The study of memory laws is a promising entry into the problematic of present-day historical consciousness, memory, and identity. As already mentioned, laws that regulate collective representations of the past are not a new phenomenon, but laws that criminalize certain statements about the past are. Even the USSR, with its formidable system of censorship, had no memory laws in the narrow sense, notwithstanding the importance of history to the communist ideology. The emergence of memory laws in the strict sense shows that in the age of memory, the past has become even more important for cultural identity and political legitimation than it was in the age of history-based political ideologies. It also demonstrates the ongoing “juridification” [Verrechtlichung] of our societies (in Jürgen Habermas’ sense of “the tendency towards an increase in formal… law”).Footnote ³⁶

Understanding how the present-day historical consciousness differs from that of the age of ideologies entails recognizing not only the novelty of the laws that penalize statements about the past but also the kinds of statements that this legislation bans. All memory laws without exception prohibit “incorrect” interpretations of concrete historical events, which demonstrates that in the age of memory, Western historical consciousness has become centered not on “master narratives” but on the fragments of the past that symbolically represent national communities and other constituencies.Footnote ³⁷ Most of these events are tragedies and traumas that have become central to the ways in which particular communities represent themselves in a context informed by the new culture of victimhood typical of the late twentieth and early twenty-first centuries.Footnote ³⁸ It goes without saying that self-victimization often presents as a perverse form of self-glorification.

To appreciate the importance of that shift, we need to return to the theory of historical concepts. As has already been suggested, each historical concept combines aspects of both a general and a proper name, which is why Jean-Claude Passeron calls them semi-proper names.Footnote ³⁹ But there are various kinds of historical concepts, some of which are closer to the model of general names while others are closer to that of proper names. In addition, as we will see in Chapter 1, the proportion in which the elements of a common and a proper name typically come together to form a concept’s meaning changes over time. Preferencing more general names over more proper ones, or vice versa, entails differing forms of legitimation (reference to universal values versus reference to the ways in which collective individuals such as nations have emerged over time).Footnote ⁴⁰ In his dialogues with René Rémond, François Azouvi claims that “the promulgation of memory laws is happening in the historical and cultural context, which privileges communitarian identities.”Footnote ⁴¹ I will argue that the present-day politics of memory, especially in Russia, tends to privilege concepts that are closer to proper than to general names. To put it differently, the idea of a special path of historical development (or Sonderweg, to use the infamous German notion that has traditionally supported much of the nationalistic thinking in Central and Eastern Europe) has become particularly prominent of late, which presupposes a far more relativistic approach to values and a crisis of democracy conceived as a profoundly universalistic project.

The idea of memory laws was genealogically linked to the notion of universal values. But this idea was overtaken by revived national narratives, not least because its logical form (or event-centeredness) is perfectly compatible with them.Footnote ⁴² The memory boom and the revival of nationalism are not only contemporaneous but also closely interrelated phenomena. Today, concrete historical events symbolizing different communities of memory have acquired an importance that they could never have had earlier, when ideological battles developed around the projects of the future and interpretations of global history.Footnote ⁴³

Memory Laws: Pro et Contra

Various arguments have been put forward for and against the criminalization of certain statements about the past, in terms of both legitimacy and practical utility.Footnote ⁴⁴ As far as legitimacy is concerned, some jurists maintain that memory laws violate freedom of speech (and freedom of historical research, historians add). The claim that nothing is more important to democracy than freedom of speech is based on the assumption that only open discussion can lead to truth and justice.

The partisans of memory laws reply that this is a naïve expectation (some ironically call it “the Darwinian theory of free speech”Footnote ⁴⁵). Freedom of speech is but one of the rights that need to be protected, and in cases where that freedom comes into conflict with right to safety and human dignity, it can be legitimately limited. Moreover, freedoms can be abused, and Holocaust denial is just such an abuse. Deniers are not searching for truth but intentionally misinterpreting facts to promote their anti-Semitic goals. Consequently, the prohibition of negationism is not even a restriction of freedom of research,Footnote ⁴⁶ since this legislation bans knowingly false statements.Footnote ⁴⁷

The argument based on the abuse of freedom dates back to the concept of militant democracy,Footnote ⁴⁸ according to which democracy is not just about procedures but about certain values, which it must be able to defend (substantial democracy versus procedural democracy). Given that the experience of the Weimar Republic seems to give weight to this claim, it is no wonder that today’s Germany is a classic example of militant democracy.Footnote ⁴⁹

As a matter of fact, all democracies limit freedoms. Partisans and opponents of memory laws agree in principle that those limits should be as minimal as possible. But what is a reasonable minimum? This is the subject of a never-ending dispute to which the issue of memory laws is quite central, some observers even suggesting that “laws forbidding Holocaust denial are perhaps the most controversial limitation on freedom of expression to have flourished over the past few decades.”Footnote ⁵⁰ Many jurists hold that limiting freedom of speech can be legitimate only when its exercise exposes concrete individuals to danger or causes them immediate harm; indeed, some memory laws specify that negationism is a criminal offence only when it is intentional and hazardous to actual individuals. In practice, however, German and French courts, as well as the European Court of Human Rights, assume that denial is always dangerous; the potential danger is so great that it makes no sense to wait until it becomes real.Footnote ⁵¹ There can also be the belated effects of certain acts that do not create immediate danger today but may strongly contribute to it in the future. Some jurists speak of the accumulation of harm: minor harms of a racist nature, if constantly repeated, can produce pernicious long-term effects (by lowering a person’s status, etc.). At this point, their opponents advance a slippery-slope argument in which trying to foresee all possible dangers of all possible abuses of freedom can lead to overreach in limiting those freedoms.Footnote ⁵² But a simple counter-argument is possible here: abusus non tollit usum (abuse is not an argument against valid use).

Another important question deals with the type of crimes whose denial can be legitimately prohibited. Some jurists argue that such prohibition should be limited only to crimes committed by the state, which would include genocide, commonly viewed as a state-sponsored crime. Following this logic, the state has no right to prohibit the rehabilitation of entities other than itself.Footnote ⁵³ (I find this to be a very strong argument.)

A recurrent objection to memory laws is that not only courts of law but also parliaments have neither the authority nor the competence to judge history or, as articulated by the French opponents of memory laws, “history is not an object of law.”Footnote ⁵⁴ However, there are counter-arguments here as well. Can we imagine a state without a minimal official history embodied in its constitution, symbols, rituals, and the like? Should we condemn acts of official repentance, state apologies, and restitution, which are impossible without judging the past?Footnote ⁵⁵ In other words, the principle of state non-interference in issues of the past also labors under certain restrictions. De facto, in most countries including France, history has long been an object of law.Footnote ⁵⁶ But one can of course still claim that although the authorities are entitled to express their official position regarding past events, they have no right to penalize alternative opinions.

The necessity for memory laws can be called into question because denial can be (and on some occasions has been) punished under existing laws against hate speech. What is particularly dangerous about deniers is not denial per se but the intention behind it, the hateful message it conveys. But why do we need special laws prohibiting certain statements about the past if their racist animus is already banned by other laws? However, one can also approach this issue from a different angle, by asking if it really matters which law is used to punish certain statements. The real question, therefore, might be not whether we need special laws to punish denial, but whether it should be punished at all.

Confronted with these difficulties, some jurists have tried a different tactic. There can scarcely be any absolute answers to the question of the legitimacy of memory laws in a democratic society, because democracies vary: “Free speech rights are highly culturally contingent.”Footnote ⁵⁷ Thus, American democracy gives priority to freedom of expression, while German tradition privileges human dignity and public order.Footnote ⁵⁸ In principle, communitarianism favors restrictions on free speech, while libertarianism protects it.Footnote ⁵⁹ As a rule, it is easier to limit freedom of expression in civil law countries than in common law countries. The latter (the United States, the United Kingdom, Canada) consistently resist the idea of criminalizing statements about the past, as is also true of those civil law countries that have been strongly influenced by the common law tradition (the Scandinavian countries, for example). However, some jurists believe that “the prohibition of some denials of crimes against humanity… is constitutional in most of the legal systems” that have other laws limiting freedom of expression.Footnote ⁶⁰ The fact that many countries refuse to criminalize denial because they have other laws that provide for its punishment is a strong argument in support of this position.

This approach looks appealing, although relativizing democratic principles beyond certain limits risks undermining the very idea of democracy. The difficulty arises when we remember that legal frameworks can and do undergo permanent change. The First Amendment liberalism that is considered fundamental to the American legal tradition is in fact a recent development in the United States, where “periods of libertarian tendencies have alternated with periods of sharp regulation of speech.”Footnote ⁶¹ One had to wait until the 1960s to see “First Amendment absolutism” emerging as a part of the broad cultural movement that liberalized American society.Footnote ⁶² The Brandenburg doctrine that embodies First Amendment absolutism regarding Holocaust denial was formulated in 1969.Footnote ⁶³ What prevents us from supposing that this “absolutism” may not have triumphed permanently? This demonstrates the limits of legal relativism: we need criteria to determine what is acceptable in a democratic society.

Contextualizing the phenomenon of memory laws has yet another aspect, which is that similar acts committed in different societies are not necessarily considered equally dangerous. The recent history of certain types of crimes, or the lack of such history, affects the acceptance of prohibitions on the denial of those crimes.Footnote ⁶⁴ Fascist movements have, as a rule, been more robust in civil law countries than in common law countries, and it therefore comes as no surprise that civil law countries are more apt to prohibit Holocaust denial, memory laws being widely perceived as an expression of state repentance.

The efficacy of memory laws is another difficult question. We have no reliable data to measure that efficacy, and localized examples have proven rather inconclusive. Thus, the deniers’ activity in Germany decreased very considerably after the adoption of the memory law of 1994. But its center moved to the United States and Canada, and denial websites there are easily accessible from Germany. Moreover, in the 2000s, denial reemerged in popular music, especially in the former German Democratic Republic (GDR).Footnote ⁶⁵ What does this tell us about the efficacy of memory laws?

From the 1980s on, the adoption of memory laws has been justified by “the growing assault on truth and memory” (to borrow from Deborah Lipstadt’s title).Footnote ⁶⁶ Is this assault still growing, though? If it is not, perhaps those limitations on freedom are no longer needed. But if it is (and far-right movements are indeed rising throughout the world), what should our conclusion be: that we need more laws to stop the assault or that laws cannot stop it? Perhaps it makes sense to concentrate efforts not on legislation but, rather, on education? “Memory and identity battles can hardly be resolved by legal engagement,” writes Stiina Löytömäki.Footnote ⁶⁷ Other researchers also believe that “genocide allegations may increase hostility, not diminish it.”Footnote ⁶⁸ Emanuela Fronza suggests that “European states should consider proceeding down the long route of encouraging remembrance and commemoration rather than the short route of criminalizing negationism.”Footnote ⁶⁹

A skeptical evaluation of law as an instrument for use by the politics of memory draws upon the idea of the incompatibility of legal truth and the “broader and more profound issues studied by historians.”Footnote ⁷⁰ This has to do in particular with the two differing ways of assessing the evidence: “History aims to tell the whole truth – jurisdictional concepts and procedural rules affect the creation of a complete historical record…. A historian… would surely be more interested in the real truth than in the ‘trial truth.’”Footnote ⁷¹ In addition, “whereas legal judgment is final…, neither memory nor history has any strong interest in finality.”Footnote ⁷² Unsurprisingly, some historians have refused to give testimony at war criminals’ trials because (they argue) their knowledge bears not upon the individuals in question but upon the historical phenomena.Footnote ⁷³ As for the deniers’ trials, their impact is questionable: one of the chief arguments against memory laws is that those trials help deniers propagate their theories.

Having examined arguments for and against memory laws, a historian might conclude that jurists are much more convincing in showing the complexity of the issue than in justifying any one solution for it. As I have already suggested, taking into account the evolution of the laws prohibiting certain statements about the past seems to back the critics of this legislation. Assessing memory laws historically may be important in the context of “the proliferation of new local hate speech laws” when “the ‘minimalist’ approach is losing out under a growing, punitive trend that is introducing new speech bans into national criminal codes.”Footnote ⁷⁴ Understanding where this “punitive trend” may lead cannot be a matter of purely legal analysis.

Assessing Memory Laws and Understanding the Rise of Memory

In many cases, a positive or negative assessment of memory laws by a given author correlates with his or her understanding of the rise of memory. This is particularly true of the historians’ take on the issue. Most historians protest memory laws in the name of freedom of research, which they feel is endangered by such “Stalinist” regulations.Footnote ⁷⁵ In contrast, those historians who welcome memory laws argue that this legislation does nothing to restrain their freedom.Footnote ⁷⁶ (This said, though, even in France there have been cases in which professional historians with nothing in common with deniers were persecuted for their opinions of the issues of genocide.Footnote ⁷⁷) Another typical criticism of memory laws by historians is that they tend to be used in the interests of a manipulative kind of memory politics. Timothy Garton Ash imagines the “horse-trading behind closed doors in Brussels (Polish official to French counterpart: ‘OK, we’ll give you the Armenian genocide if you give us the Ukrainian famine.’) Pure Gogol.”Footnote ⁷⁸ Yet, the main reason behind some of the historians’ protests against these laws seems to lie elsewhere.

We will see in Chapter 1 that the rise of the memory of the Holocaust was crucial to the emergence of the age of memory, although the present-day fascination with the past has been conditioned by other factors of equal importance as well. Initially, the rise of memory was widely perceived as a sign of the growing emancipation of individuals and (especially subaltern) social groups from (often nationalist) state-sponsored history-based ideologies, as a powerful instrument for exploring one’s own subjectivity and identity.Footnote ⁷⁹ Promoting the memory of the victims of past crimes and injustices was an important item on the agenda of the left, which includes a significant – and in many countries even predominant – segment of the historical profession. Originally, the obsession with the duty of memory and a broad support for Holocaust denial laws came largely from that political and cultural contingent. Characteristically, in France, most of those who in the 2000s became ardent opponents of laws about the past had hailed the adoption of the Gayssot Act in 1990.Footnote ⁸⁰

From the outset, however, some historians protested memory laws, while others doubted that the rise of memory was such a healthy phenomenon. In the 1980s and 1990s, the founding fathers of memory studies, David Lowenthal and especially Pierre Nora, had developed ironic narratives about the “heritage crusade” and the “era of commemoration.”Footnote ⁸¹ Both diagnosed an obsessive nostalgia for the past as a hallmark of their time but were themselves nostalgic about the intellectual culture of the era that had preceded the memory boom. It was not by chance that they both saw the rise of memory as a consequence of the crisis of history (or the crisis of the future). In a sense, memory studies were born of cultural pessimism, although they were very soon overrun by devotees of the coming age of memory.

A few years later, when the rise of memory had already become a fait accompli, new voices began expressing concerns about its possible consequences. On the one hand, Tony Judt powerfully argued in 1992 that the postwar recovery in Europe had been made possible only by a tacit yet universal agreement to leave the past in the past and focus on building a better future.Footnote ⁸² This historical observation had an obvious implication: for all its humanistic intentions, focusing on the past may not always be an efficient cultural and political strategy – a claim that might sound overly Nietzschean, although for Judt it was essentially pragmatic. On the other hand, Charles C. Maier, famous in particular for his persuasive critical examination of the unwillingness of right-wing German politicians and intellectuals to face the legacy of the Nazi past head on,Footnote ⁸³ unambiguously condemned what he labeled a “surfeit of memory”:

As we see, criticism of the rise of memory, and not just fascination with it, was apt to emanate from the left. Since that time, the problem of too much versus not enough memory has become a recurrent theme of public debates and academic explorations.Footnote ⁸⁵ Maier’s denunciations were largely in line with Nora’s analysis of the pernicious impact of the rise of memory on democracy and national identity in France. To Nora, the present-day memory is no longer a natural memory transmitted from one generation to another, but an “artificial hyper-reality” created by various agents of memory in the interests of political manipulation. Being essentially fragmented, this manipulative artificial memory can only divide a nation internally and undermine its identity.Footnote ⁸⁶ More than that, since particularistic memories emphasize past tragedies, they deprive France of its “positive relation” to its history and stimulate a “national masochism” in the name of multiculturalism.Footnote ⁸⁷

This “anti-multimemorism” has largely informed the protest movement against memory laws in France. (By multimemorism, I mean a mnemonic situation typical of the age of multiculturalism, when multiple memories of historical events co-exist, and struggle for official recognition, in our societies.) It also explains why the declarative memory laws of the 2000s, rather than the normative Gayssot Act, were its main target. The Holocaust being perceived as a universal symbol of suffering, the law that protected its memory could be said to express the nation’s adherence to universal values and its repentance for its part in this crime. By contrast, laws recognizing other crimes were often viewed in the context of the fragmentation of national identity rather than in terms of the nation’s access to universal values. René Rémond’s answer to François Azouvi’s question about the potential dangers of the “legitimate recognition of diversity” (read: the expansion of memory laws) makes this logic absolutely obvious: “The process becomes dangerous when attachment to the particular overrides adherence to the general and prevents [a nation] from opening toward the universal.”Footnote ⁸⁸ From this vantage point, the main problem with the Gayssot Act was that it had created a precedent for the proliferation of memory laws. Characteristically, those French historians who supported (albeit with reservations) the memory laws insisted that all of them “had been adopted in the name of universal values.”Footnote ⁸⁹

Similar objections to memory laws have also been raised outside France.Footnote ⁹⁰ Seeing the multiplication of memory laws through the lens of a competition of victims naturally leads to their assessment as manipulative electoral devices and their dismissal as a legitimate tool of democratic history politics. But are there good grounds for such a gloomy view of the present-day historical memory? Does not the memory boom, on the contrary, hold out the promise of modern man’s more human and democratic relationships with the past? In my first chapter, I will try to answer those questions before turning to an analysis of memory laws in the chapters that follow.