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

Abstract

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 positive perception of a violent past, I focus on laws that ban a negative perception 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 contemporary Russia and Israel, and evaluate their different impacts on democratic 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.

Memory laws in vulnerable societies

“…It morphs from a vehicle of translation of historical memory to future generations, to an instrument of social control which leaves open the public space for the social group whose historical memory the legislator finds legitimate, while other social groups are silenced and controlled in their own memories (Gutman & Tirosh, 2021, str. 705;Gutman 2016;Löytömäki, 2012, str. 19).…”

“…Не баве се више најбољим начином на који се историјско сећање може сачувати за будуће генерације, већ почињу да контролишу друштво, тако што јавни простор ослобађају за једну друштвену групу чије се историјско сећање сматра пожељним од стране законодавца, док се остале друштвене групе ућуткују и контролишу у свом историјском сећању (Gutman & Tirosh, 2021, str. 705;Gutman 2016;Löytömäki, 2012, str. 19).…”

Memory laws, mnemonic weapons: The diffusion of a norm across Europe and beyond

“…A side-by-side view of the Expanded Model language alongside Russia's law makes plain that Russia's law is couched in the legitimized language of the genocide denial bans that came before it, but it shifts intention towards protecting the state, rather than protecting victims of the state as previous European models intended (Gutman, 2016), a step made more explicit by a 2021 law that bans drawing equivalencies between the actions of Nazi Germany and the Soviet Union (TASS, 2021). These laws take a leap forward in maintaining a selectively heroic image of the past: a general trend rearing its head elsewhere in the world.…”

“…The meeting of Holocaust memory and slavery in the United States is far from novel (Rothberg, 2009), but this particular legal linking invites further research as it reveals the same tensions between critical inquiry, free speech and state-sanctioned history as the memory laws that came before it. While Florida's CRT ban is the only one to my knowledge that invokes Holocaust denial alongside it, a string of similar proposals skew towards what Gutman (2016) typifies as mandating a positive perception of national history. Furthermore, all three examples (Russia 2014, Poland 2018, and the Florida code of 2021) use accepted models of Holocaust denial language as a vehicle to transport their chiefly nationalistic concerns: multidirectional memory in a more subversive form (Rothberg, 2009).…”

“Don't cry, it doesn't belong to us”; critical thoughts on commemoration as a means of inclusion: Mizrahi Jews and Holocaust memory in Israel

“…Such efforts to render collective remembrance increasingly inclusive can be seen as part of a global tendency to “come to terms with the past” (David, 2020; Misztal, 2010). In this context, acts of memory omission—such as the exclusion of the histories of indigenous populations or of ethnic and religious minorities subject to discrimination—from official national histories are increasingly being seen as constituting acts of political discrimination, and hence the inclusion of minority histories is increasingly being mandated by law and policy (Gutman, 2016). Indeed, some states actively work to transform their public political cultures and national memories in such a way as to confront their multiethnic present.…”