The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in the Recent Literature

DEFENDING NAZIS IN POSTWAR CZECHOSLOVAKIA: THE LIFE OF K. RESLER, DEFENCE COUNSEL EX OFFICIO OF K. H. FRANK by DRÁPAL, JAKUB (Prague: Karolinum Press, 2018, 200 pp., £19.00) COMMUNISTS AND THEIR VICTIMS: THE QUEST FOR JUSTICE IN THE CZECH REPUBLIC by DAVID, ROMAN (Philadelphia, PA: University of Pennsylvania Press, 2018, 280 pp., £69.00) In recent years, the fields of law and society and of comparative constitutional and criminal law have been marked by the unprecedented blossoming of literature addressing controversial memory laws in Europe. Such legal developments have been unfolding nationalistic ways of shaping historical narratives as well as a vivid articulation of the role of the legal profession in the politics of memory.11 The authors of this article have themselves recently edited a volume offering a normative framework for the conceptualization and study of memory laws and the role of lawyers in various jurisdictions, from Eastern Europe to South America, and in countries as diverse as Israel and Canada. See U. Belavusau and A. Gliszczyńska-Grabias (eds), Law and Memory: Towards Legal Governance of History (2017). This literature deserves special analysis, drawing out the trends and prospects of this field, for several reasons. First, the rise of memory laws in Europe has signalled a broader shift towards a nationalist, anti-European discourse, marked by the fortification of populist movements and a greater interference with academic freedoms. Second, the recent memory politics in Europe and elsewhere has been largely driven by dystopian visions of a dark past, populated with unimpeachable heroes fighting for national independence and victims of atrocities perpetrated by cruel regimes imposed by foreign oppressors. Third, legal agents (legislators, prosecutors, judges, ‘institutes of memory’, human rights lawyers, and so on) have certified these simplistic narratives as legitimate and obligatory for social reproduction. So, what are those memory laws that have featured in the academic literature on law and society in recent years? For the purposes of this article, we define memory laws as various forms of legal governance of history, including punitive measures against the denial of historical atrocities and bans prohibiting the use of totalitarian symbols of the past.22 For a detailed overview regarding the genesis, evolution, and definition of memory laws, see U. Belavusau and A. Gliszczyńska-Grabias, ‘Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice’ in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) 1. Our broad notion of memory laws also covers legal acts recognizing and commemorating historical events and figures, including laws establishing state holidays, celebrations, and dates of mourning, street (re)naming and monument instalment in honour of historical figures, status of and access to historical archives, and regulations regarding museums and school curricula on historical subjects.33 Some scholars have recently theorized even the cluster of ‘crimes against history’, exploring various ways in which history is censored and historians are silenced or outright killed for political reasons. See, in particular, A. De Baets, Crimes against History (2018). Memory laws are not exclusively a modern phenomenon. Hardly any state can avoid a degree of memory governance when it comes to teaching history or commemorative practices, for instance. Likewise, memory laws are certainly not a new subject in academic literature. As demonstrated in previous studies, memory governance dates back to at least the French Revolution.44 U. Belavusau, ‘Memory Laws and Freedom of Speech: Governance of History in European Law’ in Comparative Perspectives on the Fundamental Freedom of Expression, ed. A. Koltay (2015) 537. Punitive memory laws akin to the prohibition of genocide denialism appeared in the 1980s and 1990s and have spread from Germany to all over continental Europe. The German model gradually expanded from Holocaust denial laws per se to a wider prohibition of genocide denialism.55 Volksverhetzung, the German analogue of ‘hate speech’ terminology, is a criminal offence under Section 130 of the Criminal Code (Strafgesetzbuch) in Germany. Similar provisions about the incitement of group hatred have been enshrined in the majority of continental European criminal codes or via special statutes. In Germany, this criminal offence can lead to up to five years’ imprisonment. For many years, Section 130 was interpreted as covering Holocaust denial. Special provisions on Holocaust denial were added in the 1990s, and there were later provisions on justifying or glorifying the Nazi government. Similar, self-standing (in other words, separate from ‘hate speech’) provisions on Holocaust denial exist today in various states, from Israel to France. During Germany's presidency of the Council of Europe in 2008, such provisions were made secondary law of the European Union (EU) by virtue of the Framework Decision on xenophobic speech.66 For a broader analysis, see: Belavusau, op. cit., n. 4; L. Cajani, ‘Legislating History: The European Union and the Denial of International Crimes’ in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) 129. On the surface, these dystopian visions of the past embedded through legal governance of history are compatible with democracy and are seen as a necessary step towards building an idealized – utopian – present and future. For example, the prohibition of Holocaust denialism and the commemoration of Nazi victims in continental Europe has for a long time been regarded as part of militant democracy – that is, a system of governance bent on preventing future atrocities by curtailing certain fundamental freedoms and reminding future generations of the horrors of the past.77 A. Sajó (ed.), Militant Democracy (2004); U. Belavusau, ‘Hate Speech and Constitutional Democracy in Eastern Europe: Transitional and Militant’ (2014) 47 Israel Law Rev. 27; M. Mälksoo, ‘Decommunization in Times of War: Ukraine's Militant Democracy Problem’ (2018) Verfassungsblog: On Matters Constitutional, at <https://verfassungsblog.de/decommunization-in-times-of-war-ukraines-militant-democracy-problem/>. However, in portraying the past as exclusively dystopian, the risk of idealizing the present political regime increases. Likewise, there is the danger of dehumanizing minorities for the sake of extolling the heroism and victimhood of particular nations fighting foreign oppressors, and of stirring up new international conflicts via ‘memory wars’.88 N. Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (2017); I. Nuzov, ‘Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe’ (2019) 19 Human Rights Law Rev. 231. Finally, memory laws are a clear normative threat to democracy itself (a mnemonic threat), whereby historical memory is severely controlled and alternative readings of the past are censored.99 U. Belavusau, ‘Final Thoughts on Mnemonic Constitutionalism’ (2018) Verfassungsblog: On Matters Constitutional, at <https://verfassungsblog.de/final-thoughts-on-mnemonic-constitutionalism/>; M. Bucholc, ‘Commemorative Lawmaking: Memory Frames of the Democratic Backsliding in Poland after 2015’ (2018) 1 Hague J. of the Rule of Law 85. In this article, we take a closer look at the recent literature regarding the role of law and lawyers in the broader politics of history in Europe. The literature that we have selected, in particular, looks at the role of law and lawyers in framing central narratives and foundational myths of the European totalitarian past. The article consists of four parts. In this introductory section, we have outlined a general understanding of memory laws and legal engagements with the politics of memory. The second part zooms in on two recent monographs about law and lawyers affecting our understandings of the European totalitarian past, both from a Czech(oslovak) perspective: one by Jakub Drápal on the life of a lawyer from the Nazi epoch, and the other by Roman David on ‘coming to terms’ with the memory of communism. In the third part, we reflect on several recent major books on legal governance of historical memory, including those covering broader aspects of memory laws, memory wars, and genocide denial bans, as well as those looking into legal engagements with history from the perspective of transitional justice. In the fourth and final part, we offer our concluding remarks regarding the overarching trends emerging in this rapidly growing field of law and society and the potential direction of studies of memory laws and policies in the years to come. Defending Nazis in Postwar Czechoslovakia: The Life of K. Resler, Defence Counsel Ex Officio of K. H. Frank by Jakub Drápal is a record of heroism displayed not on a battlefield but in what may sometimes prove a more challenging and demanding setting: in a courtroom, defending one of the most prominent figures of the genocidal Nazi regime. It is also a gripping tale of how law and its practice and history intertwine, and of the many questions that to this day continue to crop up around this tangled knot. How are the perpetrators of the most brutal crimes to be judged and punished? Does the law have in its arsenal the right tools to address cases of this kind? How are we to gauge the culpability of individuals for crimes committed by regimes? And how should the jurisdiction of national courts be delegated to international criminal tribunals? Drápal provides an in-depth account of the personality, life, and professional career of Kamill Resler, and his book encourages a philosophical discussion of transitional justice with respect to law. Drápal paints a vivid and precise picture of the world in which Resler lived from his earliest years, with all of the circumstances and events that helped to shape his personality. One cannot shake the impression, however, that what really made Resler an exceptional attorney and defence counsel was his unique attitude, character, sense of morality, intellectual integrity, and profound personal dignity, and that everything he went through amplified these qualities and brought them to the fore. Success in defence does not mean the client's acquittal, but ensuring that the trial proceeds fairly. In this case, K. H. Frank was sentenced according to the law and as a result of a fair trial. The arguments that Resler raised the were to all and Resler that was to be seen as the result of a fair trial and not as an of he to use all the tools the law made to to more recent of of this we cannot to the of and his were to a trial and As a the trial and were but in to the state of that at that time at On the legal governance of history in see also the and Legal in in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) – – is the memory to as which and by individuals in the of the totalitarian state from to of on to the on of and and of Laws of The law in to such of the and of and has been in the courts of law as the of legal other In to book career to and the Nazi of his and when his itself by a regime. is is to the that he an on circumstances were to – – Resler was defence counsel in of the most political in the such as that of a of state Resler a in of his but in as he was of he was of this most with the Nazi of at a time when a was with and to Resler second about defending his This of career when we in book about under the the for the general on During the Nazi Resler also part in that were out of with the of a fair trial. This is what he about one such in which the was sentenced to was present for many but that were so as It was a that his when he displayed his in defence of of with the Nazi of were Resler was defence counsel in what was the most by the in a special in to a of This was the of the of the of the Nazi foreign in Germany, and to from the life was on the by the to have the Resler to the by even when in with an to the of and should not be seen as In so he profound by those the most controversial and in historical sometimes on special regulations on the of the book is a not for lawyers and law but also for scholars exploring memory laws and legal governance of history, as it is not a of an exceptional human in the to in this world – for this is how we should professional the book also is a of the legal and by those to with the of historical book to on this subject is and the for in a of the in the of and by its as an of of the Holocaust and genocide through the of the M. and the for in a (2017). The of this book is profound of the questions and of a and with which Resler and which criminal to the Holocaust and other exploring also the of to use the by and the Holocaust of is for this interference in and a growing to of under its and the of Eastern Europe. as a to in the Eastern for its with the past to be the of memory – central to the of memory laws in and Eastern Europe – to be foundational for studies, which the of justice measures to to the of human rights committed by the regime. measures of justice into the four and both the of justice measures on and society as a and the of transitional justice by these In his he a of and in and David is a in his and his book should be of particular to legal to the in which he his with of and other In drawing his on these David up a of in which the and the are both to justice that or perpetrators and victims be as The may be seen as victims as and justice measures as it may be for any of the by David to to with the past in On this in see also J. of in with the and Some from the in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) other he may from its and avoid the scholars and from studies of law to studies of memory of the past the literature with a of in the of legal governance of history has and to a of books in the past years were for this article out of the of literature on the subject that has appeared over the past this literature is how in and are with the past, and the legal tools to certain historical to these we are in a to the that with memory laws, and are to of the that we up the of of in the of legal bans on the of political in countries when years have the of the and the to and sometimes in national history by in and bent on historical drawing and and the of and all of the in the history of and and at that One be to out the most and gripping at the of law and history, but recent books certainly for into memory laws in diverse to the literature on memory laws with a many but certain are including genocide denialism and transitional justice As for with memory laws as which this to broader studies in comparative constitutional law and politics of memory, two major books appeared the of a of from University Law and Memory: Towards Legal Governance of History, a volume edited by two legal the authors of this article, Belavusau and Gliszczyńska-Grabias, and Belavusau and Gliszczyńska-Grabias, op. cit., n. 1. The book has been See, for to an (2018) J. of Comparative Law K. out of History, History by Law’ (2018) Rev. J. for the of Belavusau and Gliszczyńska-Grabias Law and Memory: Towards Legal Governance of (2018) J. of Law and and Memory: Towards Legal Governance of History Belavusau Gliszczyńska-Grabias K. and Memory: Towards Legal Governance of History Belavusau Gliszczyńska-Grabias (2019) and Law Rev. Law for the Law and the from to International for the of Law 1. and Memory Laws, Memory Wars: The Politics of the Past in Europe and an by Koposov, op. cit., n. one of the most in the studies of legal governance of history is the of memory In his ‘memory laws per as laws certain about the but there are also other and other ways of of this to for example, laws affecting historical memory not have to are by the state in the of and also about the Towards a of Law and in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) In the that memory laws not in the criminal to these laws but in the to the of of including the to personal and which can certain of historical narratives from and the by those by the as the of the Bucholc, op. cit., n. in of memory laws however, to the of the that and the that to which book is largely the risk of historical to the purposes of those in or the perpetrators of crimes of the of of memory through Holocaust denial and the of a new into international what are the of the recent and of memory laws on the major that central the of memory laws in all European those in in particular a on a an unique memory Legal on or the crimes of the Holocaust the most – not – memory is largely a that of into that should be at least in the European legal a of have recently around this as can be seen from the literature on the fundamental such as when is to be with human rights in the of of but also more such as the of a as it of crimes that may not be This was by the by the of the European of Human Rights in the of on of the European of Human of For of the case, see U. Belavusau, to of Human International Legal when we to how into the past we can in of the crimes that should not be by law to be or As the out in the it has been more years the to and this should be seen as the of the of legal bans on that particular we is one of the to years have the Holocaust was Holocaust to One with legal of this – and also with a of other and historical – is of Memory and Speech and the of Criminal Memory and Speech and the of Criminal Law (2018). This book a discussion of the on also the history of laws in Europe. not from questions is In The of the against the he that laws as an of justice the memory of genocide victims have the potential to be in political as a of such as those on events in The of the against the One other academic on of is the Holocaust and edited by and with from authors to the history of the genocide studies, international criminal and social (eds), Holocaust and (2018). regarding legal governance of history to the use of memory laws as of transitional justice. transitional justice per se is the subject of literature and the has in a sense a to the of legal of memory laws were in transitional justice as into these legal of with the past are of N. Transitional for the the of History and and by N. Transitional for the the of History and a of many of the the of transitional looking at its to through a of justice and of from of criminal and regime This in-depth is of to other scholars with memory laws, legal governance of history, and memory of the past in for to questions about the of memory laws in book with one of the of transitional however, are in of memory laws to historical by as it what can be with brutal crimes and European literature on memory laws the forms of such laws and constitutional and and and so there has been a in in Europe. in has been with a marked of of law in the See a Verfassungsblog: On Matters Constitutional, at are to to populist under the of memory at alternative historical of U. Belavusau and A. (2018) See also and Democracy and Memory (2019) J. of Democracy ‘Memory Politics in Rule of Law’ (2018) Verfassungsblog: On Matters Constitutional, at Likewise, the controversial of the in op. cit., n. has recently unprecedented to law in the of historical memory and various the memory of the Holocaust and other See the Denial of Holocaust Denial of Crimes the European of Human in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) the of The the and International Criminal Law’ in and Human eds J. During the 1980s and 1990s, and even in the memory provisions and historical in Europe and elsewhere were largely a of and narratives about the the and so questions about the past and its for a more and future. In the and memory laws have been into ensuring mnemonic and in a of countries in to in in particular, See U. Belavusau, of Memory Laws in to (2019) and Human Rights A. and U. Belavusau, in eds J. (2019) The legal of See N. Koposov, by of Criminal in Law and Memory: Towards Legal Governance of History, eds U. Belavusau and A. Gliszczyńska-Grabias (2017) with the of that has been well by Koposov, op. cit., n. See also Nuzov, op. cit., n. Russia has a stirring up to up in the via a of – in of its of the killed by the and the of by the M. and at one of the major of the recent literature is that – the of the and major of legal governance of history in Europe – the of memory laws is in the a of memory has been The – – memory laws the of defending historical and the of Holocaust Law and Memory: and the of Human (2018) J. of Comparative Law The recent – – of memory laws should be in of memory wars, whereby a of countries in the have by that simplistic M. Mälksoo, ‘Memory the Politics of (2015) and Such narratives nations as victims of narratives the nations from on The of dystopian memory politics in with the of in the In particular, and Poland of by the and (eds), Rule of Law in the Constitutional with the idealized visions of the past in Russia with the of atrocities in the the states, and have been to in defence of certain simplistic historical It is, fair to that future in this field of law and with legal governance of historical memory in from memory laws exclusively in of with human such as of in the of European countries and genocide denialism wider the to a broader perspective regarding democracy and of law in the The literature on memory laws in Europe these laws against and and and into the broader of A. De Baets, History This have to various and for the legal with historical memory, from the right to to against and mnemonic

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