Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?

• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/lasr.12221
• Date: 01 September 2016

Memory Laws: An Escalation in Minority Exclusion

or a Testimony to the Limits of State Power?

Yifat Gutman

The article addresses the tension between nation-state memory and the law

through “memory laws.” In contrast to laws that ban genocide denial or a pos-

itive perception of a violent past, I focus on laws that ban a negative percep-

tion of a violent past. As I will show, these laws were utilized for a non-

democratic purpose in the last decade or more: They were proposed in order

to limit public debate on the national past by banning oppositional or minority

views, in contrast to the principles of free speech and deliberative democracy.

Their legislation in such cases also stands in opposition to truth-telling efforts

in the international arena. I compare two cases of memory legislation, in con-

temporary Russia and Israel, and evaluate their different impacts on demo-

cratic public debates in practice. A third case of “failed legislation” in France

compliments the analysis by demonstrating not only the capacity but also the

limitation of state power to silence or control public debate using the law.

Although national laws often reflect majority culture and memory, I propose

that memory laws in Russia, Israel, and France present an escalating degree of

minority exclusion—from omission to active banning.

The last decade and a half has seen heated public debates and

controversies around a new type of national laws, popularly

known as “memory laws.” Broadly considered, different types of

national laws address the historical record or the shared percep-

tion of the past; for example, for example, hate speech laws, laws

that establish the social calendar of memorial-days, and laws

that create institutions that house the historical record and

collective memory, such as national museums and archives

(Fronza 2006: 29; Savelsberg & King 2011; Zerubavel 2003).

The author thanks the Editors and anonymous reviewers for their helpful comments

and insights. Many thanks also to Yousef T. Jabareen and Sarah Ozacky-Lazar from The

Van Leer Jerusalem Institute, and the members of the research group on antidemocratic

legislation and to Sigall Horovitz, Inna Leykin, and TomPessah for their support and help-

ful feedback. The research was made possible through a joint fellowship from the Harry S.

Truman Research Institute for the Advancement ofPeace and the Leonard Davis Institute

for International Relations at The Hebrew University of Jerusalem, 2013–2014.

Please direct all correspondence to Yifat Gutman, Harry S. Truman Research Institute

for the Advancement of Peace, The Hebrew University, Mount Scopus, Jerusalem, Israel

91905. e-mail: yifat.gutman@mail.huji.ac.il.

Law & Society Review, Volume 50, Number 3 (2016)

V

C2016 Law and Society Association. All rights reserved.

575

Yet the controversies relate to another type of laws, those that

seek to shape or draw the boundaries of the public debate on the

past. These memory laws are utilized with regard to difficult and

violent histories and are of two central categories: one that bans

and criminalizes a positive perception of an atrocious past such as

genocide or mass-violence, and the other that bans a negative per-

ception of a violent past.

1

The first type seeks to maintain a nega-

tive memory of a violent history, and the second aims to fortify a

positive memory of such history. The first type, which includes

laws against Holocaust and genocide denial, has been addressed

in scholarly work on the use of laws and trials against the denial

of genocide and mass violence.

2

The second type, however, has

received little scholarly attention, although it has triggered great

public controversies in the last decade. Laws that enforce a posi-

tive depiction of colonial or authoritative periods in France

(2005) and Russia (2011) were denounced by local and interna-

tional associations of historians and intellectuals and civil society

groups; and a law against mourning the Palestinian displacement

in the 1948 war during the Israeli Independence Day celebration

(2011) initiated a heated public debate in Israel. I will center

here on the less theorized (with the exceptions of Boyd 2008;

Curran 2015; Fraser 2011; Miller 2010; Tremlett 2010; Warta-

nian 2008; Lemarchand 2006–2007; Koposov 2005) and more

recent phenomena of memory laws of the second type: laws that

ban a negative perception of a violent history in order to fortify a

positive memory of the nation-state (from here on I use the term

memory laws to refer specifically to this category, unless otherwise

specified).

Such laws raise tensions both domestically and in the regional

or international level. On the international and regional level,

memory laws that fortify a positive perspective of a nation-state’s

past and ban negative perceptions stand in contrast to progres-

sive efforts of truth-seeking regarding violent histories in the past

decades. International law, as well as international and regional

courts such as the European and Inter-American courts, have

determined the rights of victims to know the fate of their loved

ones who were victims of mass violence and imprisonment, as

well as the importance of commemoration and remembrance for

survivors and their descendants.

3

Such entities have, therefore,

worked to stop nation-states from closing down the public space,

1

For a different typology see Fraser (2011: 29).

2

See Fronza (2006); Hannebe and Hochmann (2011); Khan (2004); Teachout(2006).

3

See for example, Inter-American Court of Human Rights, Plan de S

anchez case,

Reparations Judgment (2004), pp. 58–102.

576 Memory Laws: Escalating Exclusion or Limited State Power

limiting collective memories, and presenting only the historical

narrative of state leadership. They instead sought to open up a

space for different perceptions and experiences of the past, espe-

cially of surviving victims. Although nation-states’ efforts to con-

struct a dominant collective narrative for their national

community have been widely researched, documented, and ana-

lyzed (Davis 2005; Nora 1996, 198421992), the growing interna-

tional paradigms that call for addressing past atrocities and a

“politics of regret” since the 1980s have also shaped states’ per-

ceptions and responses about their national pasts (Barkan 2000;

Berg and Schaefer 2009; Cohen 2001; Olick & Coughlin 2003;

Olick 2007; Torpey 2003).

On the nation-state level in which memory laws are legislated,

they do not guard against hate speech more than existing free

speech and hate crimes laws (Savelsberg and King 2011), nor do

they replace the state’s education system and memorial institu-

tions in teaching citizens about the dominant perception of the

national past. Moreover, these laws are criticized by legal scholars,

historians, and intellectuals for limiting the freedom of speech,

the freedom of media, as well as the freedom of occupation for

those who professionally study the past.

National memory laws in the recent decade therefore merit

examination on several grounds. First, because state efforts in the

last decade and a half to control the “truth” about the past

undermine decades-long international and regional efforts, laws,

and rights “to know” and to commemorate violent national

histories.

Second, memory laws of the second type are worth studying

because, as I argue, they are a legal technique that has been uti-

lized in the last decade by elected governments for non-

democratic proposes. As I will show, such laws have been used in

democracies for the exclusion of citizens and non-citizens from

public debate. They were proposed in order to limit and narrow

the national public debate on the collective past, in contrast to

the principles of free speech and deliberative democracy that

advocate the opening up of public debate to a variety of voices,

experiences, and interpretations of the past and present (as well

as visions for the future. Dryzek 2005). Their legislators use these

laws to try and guard against critical interpretations and counter-

memories of a previous regime’s conduct toward citizens and

non-citizens either explicitly, by forbidding negative perceptions

of the past (as in the Israeli and Russian cases), or implicitly, by

exclusively acknowledging the dominant perception of a con-

tested past (as in France). Sometimes disguised as protecting

against hate speech and genocide denial (for example in Russia),

Gutman 577