Introduction to the Special Section ‘Memory Laws and the Rule of Law’

Abstract

Introduction to the Special Section – relationship between memory laws and the rule of law – exploiting law in the service of historical policy and undermining democracy – rule of law backsliding – democratic backsliding – risk of abuse of memory laws

The rule of memory and the rule of law

The full-scale war of Vladimir Putin’s Russia against Ukraine launched in February 2022 was ‘the return of history’, a moment brutally demonstrating the lethal threat of imperialistic revisionist historical imagination, the falsification of history, and its abuse for political ends.¹ However, the deliberate creation or official support of factually incorrect narratives about the past has been a long-standing and enduring means of governance and national and international politics.²

States use various mechanisms to advance their preferred historical narratives: by creating and removing memorials and other forms of commemoration; establishing archives and museums; introducing standards and curricula for teaching in schools; supporting research and the arts; naming public spaces; deciding on official symbols; designating public holidays; and proclaiming commemorative years.³ States can facilitate or impose constraints on the development of a grassroots culture of remembrance by providing an enabling environment or restricting space for civil society. Autocracies usually prohibit such bottom-up initiatives.

Active historical policy at the international, national, regional, and local levels is also implemented through various legal instruments. These measures, prescribing a state-approved interpretation of history and limiting the rights and freedoms of individuals, have been conceptualised as memory laws.⁴ Memory laws⁵ include non-punitive measures, such as constitutions with preambles and parliamentary resolutions putting emphasis on historical narratives and evaluations of the past. Most constitutions reflect an interpretation of historical moments or events perceived as ‘founding’ or ‘formative’ for a state.⁶ The historical circumstances of constitution drafting and enacting ingrains the state with lasting values and assessments of the past. Constitutions set the parameters for constitutional orders that last decades after and are pivotal tools of ‘mnemonic constitutionalism’, a system of norms and practices legitimising a regime by certain historical narratives and evaluations of the past.⁷ However, they are not the sole means employed in this regard.

In many states, legal systems incorporate provisions of law that explicitly articulate their mnemonic purpose. These ‘explicit memory laws’ or ‘memory laws per se’ include a narrative about the past and often add a sanction, notably, a criminal one, for violating the official historical account. In ‘militant democracies’, notable instances of explicit memory laws include criminal law prohibitions on denying and belittling the Holocaust and other crimes. Additionally, these legal systems enforce criminal bans on propagating fascism and totalitarianism.⁸

‘Quasi-memory laws’ have a weaker mnemonic content, and their function in historical policy becomes apparent in the contextual application of the norm.⁹ For example, a criminal prohibition of defamation or insult, as demonstrated by Grażyna Baranowska’s article in this Special Section, or a civil law regime protecting personality rights, as illustrated by Adam Bodnar and Aleksandra Gliszczyńska-Grabias in their contribution, can be used as tools of historical memory governance. This occurs when these provisions are employed to penalise statements that involve historical narratives or assessments of the past.

Memory laws have been introduced in many jurisdictions with legitimate and noble objectives, aiming to acknowledge past atrocities, honour their victims, prevent their memory from fading, and reckon with the undemocratic past. These laws seek to impart valuable lessons for present and future generations, ultimately striving to deter atrocities, crimes, and xenophobia, and strengthen democracy.¹⁰ However, over the past two decades, authorities in certain states have embraced a new wave of memory laws. Instead of fostering democracy, these laws often aim to whitewash national history or demonise the historical role of other states. Rather than promoting democratic values, these laws contribute to regression, significantly curtailing freedom of expression and other fundamental rights and freedoms of individuals.

Russia’s transformation in this respect has been the most extreme. The political leadership has chosen to transition Russia from an autocratic regime to a totalitarian state that wages a full-scale war against Ukraine to maintain its historical sphere of influence, and realise imperialistic ambitions. The mobilisation for the ongoing war effort in Russia is built upon the mythology of the Great Patriotic War, which made the Soviet Union a global superpower.¹¹ Russia has also rehabilitated the totalitarian Soviet dictator Joseph Stalin,¹² and prohibited speaking of the murderous aspects of the Soviet regime.¹³ Moscow’s official narratives and actions have prompted responses from neighbouring democracies that do not share such a positive evaluation of the Red Army and the Soviet empire, considering Putin’s Russia the principal external security threat (the Baltics,¹⁴ Poland, Ukraine¹⁵). Russia’s distortions of the history of the Second World War, such as blaming Poland for the outbreak of the war, have also resulted in official political responses from the European Union (EU)¹⁶ and the Council of Europe.¹⁷ The Council of Europe expelled Russia in 2022.

Nonetheless, a preoccupation with memory laws and other legal forms of historical memory governance is not exclusive to totalitarian or autocratic regimes. The surge in historical memory governance in EU member states Hungary and Poland during their democratic backsliding under populist right-wing governments demonstrates that memory laws can be used to underscore the defence of traditionally understood national sovereignty and the rejection of transnational norms and rules, including standards of the rule of law. In the EU’s two most discussed member states experiencing backsliding in the rule of law – Hungary and Poland –, changes in constitutionalism have been evident.¹⁸ Hungary introduced a new fundamental law,¹⁹ while Poland witnessed a politicisation of constitutional interpretation without formally changing the constitution.²⁰ These changes have been accompanied by profound alterations in mnemonic constitutionalism.

Even consolidated, relatively stable democracies in Western Europe have not abandoned interest in memory laws,²¹ including punitive measures.²² Democracies in other parts of the world, such as South Korea, are also engaged in conducting historical policy through legal means.²³ Interestingly, these laws are purportedly aimed at protecting democracy and the rule of law. In Central and Eastern Europe, particularly in the Baltics, memory laws have been enacted to create distance from neighbouring non-democratic states (Russia, Belarus). These laws serve as militant memocracy means of deterrence, strengthening ontological security.²⁴ Ukraine has enacted a so-called de-communisation legislation²⁵ and, in response to Russia’s full-scale invasion, further recalibrated its historical policy to emphasise its shared history with the West and its attachment to democracy and European values.²⁶

Law in the service of historical policy and undermining the rule of law

To what extent are the diverse mechanisms by which the state regulates collective historical memory, notably memory laws, not only a product of constitutional systems but also mechanisms compromising these systems? This Special Section demonstrates that ‘explicit’ and ‘quasi’ memory laws not only occur parallel to the rule of law backsliding but also serve as important features and boosters of it.

For scholars of the rule of law, this Special Section will unveil less-discussed mechanisms employed to destroy the rule of law, namely memory laws. For scholars of memory studies and laws, this Special Section adds value by showcasing the role of institutional structures in influencing the implementation of historical policies and the influence of historical policies on the state of the rule of law. Additionally, it illustrates how the conduct of such policies is assessed from the perspective of human rights law standards and the rule of law.

Narratives propagated through memory laws and their apllication in specific cases serve governments in polarising voters, strengthening identification with the ruling majority and incentivising voting. Emotion-laden historical narratives are particularly compelling in this regard. Governing politicians often draw historical parallels and express approval or, more frequently, disapproval of certain grassroots historical narratives and official historical policies of former governments.²⁷ Furthermore, the government’s approach to the freedom of historical debate reflects its broader attitudes to the rule of law and individual rights and freedoms. Non-liberal memory politics jeopardise individual rights and critical history; they tend to be centralising, anti-pluralist, exclusionary,²⁸ and antagonising.²⁹

The nexus between the governance of historical memory and the rule of law has been under-explored, with some important exceptions.³⁰ We adopt a ‘thick’ understanding of the rule of law, as defined by the European Commission in the Annual Rule of Law Reports as encompassing checks and balances, judicial independence and media freedom.³¹ We understand the rule of law backsliding as:

the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.³²

The Special Section examines the relationship between memory laws and the rule of law backsliding, using examples from Hungary, Poland and Turkey. The two EU member states have reversed significant gains made since the fall of Communism, shifting from consolidated democracies to flawed ones (Poland) or hybrid regimes between quasi-democracy and authoritarianism (Hungary).³³ Turkey, under the government of the AKP since the 2010s, has deteriorated into a regime described as competitive authoritarianism.³⁴ This Special Section also juxtaposes memory laws in rule of law backsliding states with Germany, an example of consolidated democracy with a robust memory laws system, to explore how structural factors impact memory laws and their assessments.³⁵

In the opening article, Gabór Halmai argues that deficiencies in historical policy in Hungary during the transition from Communism to democracy paved the way for the success and entrenchment of an anti-liberal government purposefully dismantling the rule of law since the 2010s. Halmai demonstrates that transitional justice mechanisms adopted after 1989 in Hungary have failed or were simply insufficient to prevent the dismantling of democracy in a society where democratic norms were not deeply rooted. He argues that these mistakes made it easier for Fidesz’s government to chip away at attained democratic standards. Halmai also recognises that the government’s attitude towards public historical debate reflect the ruling majority’s attitude towards the rights and freedoms of individuals.

This Special Section not only explains why opponents of the rule of law came to power based on public discontent with settlements of the undemocratic past, but also analyses the tools, techniques, and manner of historical policy. After anti-rule of law governments attain power through democratic processes, they resort to tactics described as ‘ruling by cheating’,³⁶ which may lead to electoral autocracy. The playing field is heavily tilted in their favour, making it structurally more difficult than in established democracies for the opposition to compete in elections. The government uses propaganda in both the captured state and private media.³⁷ Identity issues are central to sustaining social polarisation with the government appealing to emotions, including those evoked by national identification based on a simplified vision of the past. Memory laws are intended to reinforce already-existing beliefs and social myths, bolstering popular historical narratives of national martyrdom, glory, and innocence.³⁸ This often leads to a polarised worldview, where those who question the simplistic black-and-white narrative of the past are deemed disloyal. The stance on public discourse concerning the national past becomes a significant societal divide, which populist, anti-rule-of-law governments exploit to criticise cultural and political elites for their perspectives on national history.³⁹

In the rule of law backsliding states, critics of official narratives or those who propose competing ones – notably historians, journalists, artists, and academics – are under pressure. Adam Bodnar and Aleksandra Gliszczyńska-Grabias’s article examines how, under populist rule, strategic lawsuits against public participation become a crafty way of suppressing free speech and silencing the government’s critics. The article illustrates how a subcategory of such strategic lawsuits, associated with the state’s official historical policy, is employed to reinforce historical narratives favoured by the government. Specifically, the examination involves an instance of a civil law lawsuit in Poland targeting Holocaust historians who unveil and discuss the darker aspects of the nation’s history. Bodnar and Gliszczyńska-Grabias’s contribution showcases how civil law provisions protecting personal rights are used as quasi-memory laws and how attacks on government critics involve state proxies, such as civil society organisations friendly to and supported by the ruling majority. Additionally, the article calls for EU-level instruments to better protect academics from these strategic lawsuits and to evaluate the European Commission’s proposal for a directive aimed at curtailing abusive court proceedings.⁴⁰

Criminal law provisions are also utilised as quasi-memory laws in rule of law backsliding regimes. Grażyna Baranowska’s article explains how criminal defamation laws serve this purpose in Turkey and Poland. Her contribution examines how provisions protecting the good name of the state and nation, embedded within the Turkish criminal code, and newly adopted criminal provisions in Poland contribute to the rule of law backsliding. These provisions are applied against those who counter or offer a nuanced view of the state’s official interpretation of the past. Baranowska identifies significant similarities between the Turkish and Polish laws and the context in which they are implemented, such as the broad terms of the clauses, the role of organisations in applying the law, and the larger memory politics pursued by the state.

The conditions of rule of law backsliding, characterised by government overreach and the capture of key democratic institutions, create an environment that is particularly conducive to the use of memory laws and quasi-memory laws against opponents. Paula Rhein-Fischer and Anna Wójcik’s article emphasises the significance of institutional factors in the context of the rule of law backsliding. The article compares the constitutional review of memory laws in an established liberal democracy with a highly regarded independent constitutional court (Germany) and a state undergoing severe rule of law backsliding, where the constitutional court ceased to perform its intended function and is no longer considered independent or impartial (Poland). The article posits that constitutional review of memory laws is particularly prone to be influenced by political considerations, meaning that, to a significant extent, it is determined by considerations of expediency without legal constraints. The article distinguishes between a ‘simple’ form of politicisation in a consolidated democracy and abusive judicial review in the rule of law backsliding democracy.

Conclusions

On the one hand, memory laws incorporating the concept of militant democracy are adopted by states striving to embed and consolidate democracy after experiences of totalitarianism or other non-democratic regimes, conflicts, atrocities, and human rights violations, thereby strengthening respect for the rule of law. On the other hand, the risk of abuse and politicisation is inherent in memory laws and politics, as they touch upon sensitive questions of identity, responsibility, and accountability for past crimes. They are prone to be used and abused to legitimise a character of the regime and its transformations, as well as expedient government policies.

Therefore, there are multiple examples of memory laws that directly or indirectly have contributed to a deterioration of the rule of law and democracy, both by their immediate interference with the rule of law and by strengthening a regime that attacks this core principle of European law. The normative assessment of memory laws in the context of the standards of the rule of law and human rights is frequently distinct from their evaluation based on their functionality in constructing a particular constitutional and mnemonic constitutionalism.

The contributions to this Special Section reveal that many memory laws inherently present a rule of law problem. First, determining the interpretation of history by state authorities can be seen as a rule of law problem in itself. Second, the typical vagueness of memory law wording (illustrated by Turkey’s broadly-formulated provision on protecting the good name of the nation) provides state authorities, including the courts and the prosecution, with significant discretion in specific cases. This becomes particularly problematic in states experiencing democratic backsliding, where institutional safeguards for the rights and freedoms of individuals are weakened.

However, even in a consolidated democracy with a famously independent constitutional court (as in Germany), the court deviated from established constitutional law while justifying a well-intended memory law, such as a ban on approving, glorifying, or justifying the Holocaust, as constitutional.

The articles in this Special Section delve into various actors involved in the governance of historical memory in the context of rule of law backsliding: governments (Halmai, Gliszczyńska-Grabias and Bodnar), governments acting by proxy, such as civil society organisations (Gliszczyńska-Grabias and Bodnar), prosecution offices (Baranowska), and constitutional courts (Rhein-Fischer and Wójcik). The weaponisation of civil and criminal law instruments in cases related to historical narratives may give rise to a chilling effect on public debate and delegitimise criticism of the government’s historical policy.

The articles in this Special Section demonstrate that modest attempts to reconcile society and consolidate democracy by transitional justice measures may not prevent a democratising state from turning into an illiberal populist regime. Memory laws are an important part of the governance toolkit in the rule of law backsliding states and can contribute to further moving away from transnational standards on the rule of law and human rights. Governments in states experiencing rule of law backsliding adopt diverse strategies regarding memory laws, sometimes concurrently. Frequently, these strategies involve bold and straightforward historical policies and laws aimed at whitewashing a country’s national history. In other instances, political leaders may opt to disguise their true intentions, for example, by utilising and distorting pre-existing legal mechanisms such as strategic civil lawsuits against their critics. It is important for the governments of liberal democracies to be aware of this inherent risk of memory laws when they decide to join the trend of governing the memory of the past.