Historians, Memory Laws, and the Politics of the Past

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 107-117 | Article | (Table of Contents) I. Historians against memory laws. - II. Historical memory and criminal law. - III. Universal values and particularistic memories. - IV. Populism and memory in Eastern Europe - V. Concluding remarks. | (Abstract) This Article examines historians' protests against memory laws that criminalize certain statements about the past. Most typically, historians protest these laws in the name of freedom of research. However, the chronology of their protests, which became widespread only in the 2000s, a decade and a half after the adoption of the first bans on Holocaust denial, suggests that their opposition to memory laws had other reasons as well. The author argues that these reasons had to do with the evolution of the legislation of memory, namely, the expansion of such prohibitions on topics other than Holocaust denial, which many historians interpreted as a manifestation of the "competition between victims" and of the decay of democracy as a universal project. The Article further considers the changes that occurred in this legislation as a result of the rise of national populism, especially in Eastern Europe, where bans on certain statements about the past are increasingly used to promote national narratives. The 2014 Russian memory law, which criminalizes "the dissemination of knowingly false information on the activities of the USSR during the Second World War" and protect the memory of the Stalin regime, is an extreme example of this tendency. The author suggests that the memory laws' focus on concrete historical events that function as sacred symbols of national and other communities, has facilitated their emergence as a preferred instrument of populist history politics based on particularistic memories rather than on the cosmopolitan memory of the Holocaust.