Memory Laws: Historical Evidence in Support of the “Slippery Slope” Argument

The notion of memory laws emerged as recently as the 2000s, and it can be used in a narrow sense of denoting enactments criminalizing certain statements about the past (such as Holocaust denial) and in a broad sense as including any legal regulations of historical memory and commemorative practices. Such regulations are by no means a recent phenomenon: they hark back to the nineteenth century at the very least. By contrast, the first bills that explicitly criminalized statements about history were passed in the 1980s and 1990s, and the notion of memory laws was coined to refer to this legislative novelty. Even the USSR had no ad hoc statutes to punish “incorrect” claims about the past and did that, instead, on the basis of the Penal Code’s articles prohibiting “anti-Soviet propaganda” (e.g. articles 70 and 190.1).

Any discussion of the legitimacy of memory laws in a democratic society has to distinguish between the laws that introduce criminal penalties for certain historical claims and all other memory laws (for the sake of simplicity, I will call them “declarative”). In an ideal world, there should probably be no state-sponsored politics of memory at all, except for education aimed at the development of critical thinking. In the real world, however, we can hardly imagine a state without a minimal official history embodied in its institutions, symbols, and holidays. More than that, history is an important means of legitimizing contemporary democracy by showing its origins, challenges that it had to face, and its place in the development of our societies. We can doubt whether this or that particular declarative law is justified, but it is difficult to claim that the state has no right to express its official point of view on the events of the past. The problem arises when a government bans alternative opinions about these events ...

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