Memory Laws in France and their Implications: Institutionalizing Social Harmony

Introduction: What is a Memory Law?
In July of 1990, France’s Congress passed a landmark piece of legislation that marked the front page of newspapers across the world.  One of the world’s most influential nations with an intricate history of revolution, colonialism, and multiculturalism, declared the denial of the Jewish Holocaust as a criminal offence.  The Gayssot Act , proposed by French communist politician Jean-Claude Gayssot, emerged in France’s national and political consciousness following the defamation of a Jewish cemetery in Carpentras, a town in southern France.  
This measure, however, was not the first of its kind in France or the wider European landscape.  France’s 1972 Pleven law on racism, for example, built on the 1881 law on freedom of press prohibiting the press from libel, slander, defamation, and writing against a group of people.  The Pleven law furthered these restrictions to outlaw racist speech and writing against individuals, and banned provocations of hatred, racial violence, and discrimination.   On June 18, 1987, the European Parliament formally recognized the Armenian genocide  and declared that Turkey’s active denial was an obstacle to its admittance into the European Union.   As history shows, the Gayssot Act belongs to a progression of measures targeting what lawmakers in France and Europe have perceived as threats to racial tolerance.  In this progression, the Gayssot Act represents a step in which a codified historiography can be applied as a tool to combat racism, negationism (Holocaust denial), and revisionism (attempts to revise events considered historical facts).  Since the passage of Gayssot, France has codified a corpus of similar measures setting the boundaries for what is and is not acceptable for the nation’s historical discourses.

The notion of a “Memory Law” emerged in 2005 during debates over a controversial measure about how to teach French colonialism.   Our examination will use the necessity and consistency of such laws to analyze four specific cases: the Gayssot Act (1990), the law recognizing the Armenian genocide (2001), the Taubira Act (2001), and the law concerning French colonialism (2005).  
•The Gayssot Act of July 13, 1990 extended the 1881 Freedom of Press Law by introducing a new article that punished the denial of the Jewish Holocaust as defined by the Nuremberg trials.
•The law of January 29, 2001 recognized the Armenian genocide of 1915.  In 2006, lawmakers in the National Assembly deemed the denial of this crime a criminal offense, but the French Senate has yet to adopt the measure.
•The Taubira Act of May 21, 2001 recognized the slave trade and slavery as crimes against humanity. 
•Article 4 of the French law on colonialism stated that educational programs must teach the “positive role” of France’s presence abroad.  

The French law on colonialism fundamentally differs from the other three laws.  Whereas the others denounce crimes against humanity and have a declarative value, the 2005 law recognizes the “positive role” of colonization and seeks to implement the interpretation into France’s pedagogical fabric.  Some have accused it of being revisionist.  The law sparked an uproar among numerous French intellectuals, including the author and attorney Serge Klarsfeld and the filmmaker Claude Lanzmann, who joined thirty-one other notables to sign a petition calling for a repeal of the controversial Article 4.  Ultimately, French president Jacques Chirac asked the government to revise the law, and the article was repealed. 
With these types of laws, France claims to have come to terms with her past (slavery, colonization, the Holocaust), but the focus of these measures compels one to inquire about those travesties unaddressed by French law.  What of the tortures during the Algerian War for Independence?  Will this be France’s next step in the codification of memory, or will the state look the other way?  

In a January 2005 decision, the French Constitutional Council stated that laws in general “should serve to set mandatory duties and rights, not to be an incantation.”   This was interpreted by the doctrine as an implicit critique of the excessive use of memory laws, according to Stéphanie Gruet, a doctoral candidate in constitutional law.  The council, therefore, is at best wary of these laws.  In which case, why do memory laws exist?  Are they necessary for a nation’s sustenance?  Do they consistently follow the precedents they set for themselves?  These questions are essential for understanding memory laws and their implications.  Dealing with the sensitive issues of recognition and the inheritance of suffering, they cannot be anything more than circumstantial laws.  They are reactive in nature, not preventative.  
Yes, memory laws are a patch, a medicine against the social ailments of Holocaust denial and revisionism.  They seem to be a useful tool for avoiding a communitarian gangrene.  But upon further inquiry, their necessity and consistency both appear problematic.  
The Necessity of Memory Laws
On of the main functions of laws seems to be to prevent and punish offenses and crimes Yet among their ordinary codified counterparts, memory laws seem more like controversial symbolic gestures rather than practical instruments assuring a nation’s wellbeing and security.  They spark impassioned debates traversing vast perspectives between politicians, intellectuals, lawyers, and historians.  While some think memory laws help the state protect social harmony, others argue that it is not the law’s role to write history.  A deeper look into these perspectives can help elucidate why there may be a disconnect between what the state expect of its citizens and what it expects of itself.  
Opponents of these measures have argued that memory laws dictate specific interpretations of the past and morph lawmakers into historians.  On December 19, 2005, nineteen historians, including historian and political economist René Rémond and historian Pierre Vidal-Naquet, released a joint statement demanding the annulment of memory laws.   They argued that such laws were not appropriate for a democratic regime since they restrict freedom of research and expression.  Though they reject negationsim, they did not want the state to interfere with their profession.  In a November 1990 interview for the French magazine L’Histoire, historian and president of the Human Rights League Madeleine Rébérioux said that, “history is not the stuff of justice.  It belongs to historians to rectify lies, not to politicians.”  In his book Les Assassins de la Mémoire, Pierre Vidal-Naquet wrote that we can talk about revisionists, but we must not talk with them.

Conversely, defenders of memory laws, explains lawyer Arno Klarsfeld, argue that “legislation must set the moral boundaries of such matters to fight against genocide denial.”  Does it mean that laws have a moral purpose?  They can.  They also provide a convenient fix for the inherited suffering some communities experience by promoting a historical integrity.  To those who say that memory laws hinder historical research, proponents of the Gayssot Act, for example, answer that Nazi ideology, extermination policies, and interpretations of genocide can still be studied so long as neither the existence nor the scope of the Holocaust are denied.
Acknowledging the unfounded positions of Holocaust deniers and revisionists through law, risks emboldening its authors and strengthening their resolve by making them feel like martyrs victimized by the state, argues Fabrice Teicher, coordinator of the educational department at the Memorial de la Shoah (a center for Holocaust research and remembrance).  Teicher argues that negationism is something between history and racism.  “It is the use of pseudo-historical arguments to deliver racist theses.”   Negation is integral to genocide.  Perpetrators want to eliminate targeted communities, erasing any trace of their existence, using, for example, coded language to conceal their message.  The consideration and use of Memory laws does not solely affect France.

Memory Laws can also be found on the wider European level.  Similar legislation on Holocaust denial has been codified in Belgium, Poland, Germany, Austria, Lithuania, and the Czech Republic.  Other countries such as Spain, Portugal, Luxembourg, and Switzerland have chosen a general legislation punishing all war crimes and denials of crimes against humanity. 
As the French Caribbean historian and research Silyane Larcher said, “Memory laws are not necessary because they answer deep political issues with simple acts of recognition.  These are not the only ways to preserve social cohesion.”  Gruet furthered this point, saying, “Memory laws are unnecessary because they impose a duty to memory.  That is the role of education.” 
Memory Laws can be more effective if combined with other tools such as education and social action.  Preserving symbols helps, but taking care of economic and social issues resulting from France’s historical errors is better.  Beyond the question of how essential a Memory Law is to a state’s existence, one must consider if the French state abides by the precedents set for itself with such laws.   
The Consistency of Memory Laws
“Until the basic human rights, are equally guaranteed to all without regard to race, it’s a war.”
-Bob Marley

For eighteen years, the Gayssot Act has made Holocaust denial in France a criminal offence.  While many Jewish communities across France and Europe welcomed the law as a consolidation of the Holocaust’s historical integrity, other minority groups with a crime against humanity in their past scratched their heads.  Algerians and descendents of slaves were among many French minorities who wondered if French lawmakers would enact similar motions to criminalize denial of crimes against humanity in their own history.  Given the lawmaker’s measure to criminalize Holocaust denial, one must ask if the state created a standard for itself to consistently condemn denial of crimes against humanity belonging to French history, or if the codification of the Gayssot Act was a unique measure that did not set a precedent.  Questions to explore include the political significance of specific minority groups and the relevance of a crime against humanity to French history.

“Laws primarily exist to protect people,” explained Fabrice Teicher.  Citing the historian Serge Klarsfeld, he continued, “We need to condemn Holocaust denial so long as there are children and grandchildren of survivors still alive. We need to protect them from moral prejudice.”   Preserving the historical integrity of an event as traumatic as the Holocaust through law and education are critical components to raising awareness and promoting prevention.  Yet due to the notable size of France’s Jewish population , one must ponder the intent of the politicians who enacted this law.  Lawmaker’s silence on codifying legislation to criminalize denial of such crimes against humanity as torture during the slave trade or the Algerian war reveals inconsistencies in the French state’s moral judgment, giving the impression of an implicit favoritism, a prioritization, an exclusivity surrounding these laws.  Teicher contends this line of reasoning.  One cannot consider the identity and disposition of the French state as fixed, he argues.  Memory laws emerge out of unique contexts.  For example, the defamation of the Jewish cemetery in Carpentras sparked a surge in support for legislation outlawing Holocaust denial.

While it is true that memory laws tend to arise in specific contexts triggered by specific events, it also appears that they are more likely to address the history of influential minority groups in France.  In January of 2001, French lawmakers passed a bill recognizing the Armenian genocide, and five years later, criminalized its denial.  The 500,000 strong Armenian community is Europe’s largest (excluding Russia) and one of France’s most mobilized minorities.  In the mind of the idealist, a memory law would be created to consolidate historical truths  and thwart institutionalized denialism, the political pragmatist would recognize the undercurrents below the law.  While the Armenian genocide is a documented fact with a rich historiography minimally contented by a narrative funded and promoted by the Turkish government, France has arguably used memory laws surrounding it not only to embolden its Armenian minority, but also to contend Turkey’s bid for the EU.   The Turkish state denies what happened to Armenians between 1915 and 1919 can be considered genocide, and has deemed it a crime to consider it as such within its borders.  France’s measure drew domestic and international criticism.  Turkey’s foreign ministry said that relations with France “have been dealt a heavy blow”, and Prime Minister Recip Tayyip Erdogan claimed that “a historical mistake has been committed” and denounced the measure as a “great shame and black stain for the freedom of expression”.  French minister for European affairs Catherine Colonna’s contention rests more in the implied precedence of such laws than in their moral uprightness, saying, “It is not for the law to write history.”      

A major critique of the Armenian genocide bill advanced by Patrick Weil, senior research fellow at the Centre national de la recherche scientifique (CNRS), and many other scholars, is that France has no business passing laws about the history of other nations.  While the Holocaust directly concerned France’s Jewish population and the slave trade concerned France’s colonial wrongdoings, the Armenian genocide, Weil argues, did not happen on French soil and did not involve the French government.  Weil was unclear as to whether he considered France’s offering asylum to thousands of Armenian refugees during the genocide as an act which did in fact weave together the histories of France and the Armenian genocide.

Weil’s assessment, it seems, overlooks the implications of Turkey’s overt and institutionalized genocide denial and underestimates the influence powerful nations can have on each other in facing the painful pasts which plague not just Turkey, but many nations, including France.  In 2006, president Jacques Chirac said in reaction to the Armenian genocide bill, “Each country grows by acknowledging its dramas and errors of the past.”  Let’s draw a comparison.  
If the Armenian genocide is the skeleton in Turkey’s closet, then the tortures during the Algerian War represents only one of the many skeletons hidden in France’s.  Both countries today have a tendency to overlook their wrongdoings.  Evidence of France’s wholesale and methodical implementation of torture during the Algerian War for Independence is well documented and a taboo topic for French politicians. 
If France’s silence on the torture of Algerians is accepted as misleading and egotistical, then it begs the question: what would France do should Turkey pass a law to criminalize denying that France’s torture tactics during the Algerian war was a crime against humanity?  Would France become more compelled to address this dark page in its history?  Or would she lash out at Turkey for passing legislation irrelevant to Turkey’s history, even if Turkey has an Algerian minority?  What if America, Germany, and the United Kingdom passed similar measures?  International attention could compel France to look herself in the mirror and acknowledge not just the glorious moments of her history, but also the darker days.  When a powerful nation like France or Turkey refuses to acknowledge a crime against humanity in their own pages of history, then, we believe, it is not only up to the world’s scholars to investigate the history, but also the world’s influential politicians to pass laws which not only consolidate a travesties’ historical actuality overlooked by the perpetrator country, but will also increase the pressure for the state in denial to accept its wrongdoing and commence the healing process.  Though political pragmatism and national self-interest rule over our idealistic hopes, we believe that influential nations have a duty as leaders to set an example and encourage their peers to be honest with history.  It is our belief, therefore, that France was not entirely overstepping its boundaries in passing a law criminalizing denialism of the Armenian genocide, just as Turkey would not be overstepping its boundaries if she were to pass a law criminalizing denial of the atrocities committed against Algerians by the French as a crime against humanity.  A nation of immigrants, like France, United States, or Turkey, houses the history of its composite parts, not just the history of the motherland.  The history of France is the history of those from her overseas territories and her immigrant inhabitants, from the Armenians to the Rwandans, the Jews and the Moroccans, the Senegalese and the Chinese.  
Inconsistent and Unnecessary 
Both the necessity and consistency of memory laws in France are problematic.  The goal of a memory law and the means by which it pursues this goal are very different and do not attend to one another.  While a memory law functions to protect social harmony, promote an “objective” historical integrity, and provide a convenient way to patch up the problem of negationism, it is not the only means to pursue this goal.  Educational outreach, symbols of remembrance, and public exhibitions and conferences all pursue these goals in less controversial and politicized ways.  Memory laws work well when complimented by other tools, but when left alone, numerous flaws throw into doubt the intentions that should promote historical integrity rather than reveal institutionalized biases and inconsistencies.

Intentional or not, the Gayssot Act of 1990 set a standard for the French state: negationism of crimes against humanity concerning French history must be criminalized by lawmakers.  This “all or nothing” approach assumes a level playing field for all of France's multicultural elements.  But history has revealed that the playing field is uneven, tilted to focus on minority groups whose votes can influence election results.  Inconsistency in French memory law legislation is endemic.  The lack of legislation criminalizing denial of France’s role in the slave trade and torture of Algerians demonstrates this fickle approach.  

Fabrice Teicher has noted that in the contemporary political discourse, a desirable status has come to be associated with victimization.  We are living in the era of the victim, Teicher says, where an implicit social stature is directly linked with having a genocide in a minority group’s history, and that stature is elevated when recognized and protected by the law.  
For France’s memory laws to overtly correspond to the clout of only a few privileged minority groups denigrates the French government’s supposedly steadfast commitment to the revolutionary ideal of égalité.  Although memory laws attempt to protect social harmony, their exclusionary reality in fact harms social harmony by provoking bitterness and frustration from those left on the outskirts of the state’s sympathies.  Because of this polarization, the necessity of such laws is dubious at best.  Alternatives, more democratic and equal, exist.  Educational outreach, diplomacy, conferences, and lectures are all ways to confront negationism with honest and unbiased discourse.   As the constitutional law expert Stephanie Gruet argues, law and education compliment one another in the task of educating and preventing future acts of negationism.

References

Interviews

•Fabrice Teicher.  30 June 2008.  Mémorial de la Shoah: Paris, France.
•Silyane Larcher.  1 July 2008.  Electronic Interview: Paris, France.
•Stéphanie Gruet.  1 July 2008.  Electornic Interview: Paris, France. 

Books

•Quand l'Etat se mêle de l'Histoire, René Rémond

Articles

•“French Pass Bill that Punishes Denial of Armenian Genocide.”  New York Times, 13 October 2006, http://www.nytimes.com/2006/10/13/world/europe/13turkey.html
•“French MP’s pass Armenian genocide bill.”  The Guardian, 12 October 2006. http://www.guardian.co.uk/world/2006/oct/12/france.turkey
• “French lawmakers approve bill on Armenian genocide.”  International Herald Tribune.  12 October 2006. 
http://www.iht.com/articles/ap/2006/10/12/europe/EU_GEN_France_Turkey_Genocide_Bill.php
•“French poll shows depth of hostility to Turkey.”  The Guardian.  29 September 2004.
http://www.guardian.co.uk/world/2004/sep/29/turkey.eu
•“Analysis: EU views on Turkish bid.”  BBC News.  30 September 2005.  
http://news.bbc.co.uk/2/hi/europe/4298408.stm

Laws & Other Electronic References

•Gayssot Act:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000532990&dateTexte=
•Armenian genocide law:
http://www.armenian-genocide.org/Affirmation.152/current_category.7/affirmation_detail.html
•Response to appeal of nineteen French historians:
http://www.adelaideinstitute.org/Dissenters1/Faurisson/statement.htm
•Demographic statistics of Jewish populations across the world:
http://www.simpletoremember.com/vitals/world-jewish-population.htm
•World Directory of Minorities and Indigenous Peoples, “France Overview”.  June 2008.
http://www.minorityrights.org/1622/france/france-overview.html

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