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

Published date01 September 2016
Date01 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:
Law & Society Review, Volume 50, Number 3 (2016)
C2016 Law and Society Association. All rights reserved.
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.
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.
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
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.
Such entities have, therefore,
worked to stop nation-states from closing down the public space,
For a different typology see Fraser (2011: 29).
See Fronza (2006); Hannebe and Hochmann (2011); Khan (2004); Teachout(2006).
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
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

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