Mnemonic Governance

We have divided the book into four parts, each being a collection of articles that dissect the relationship between law and memory from a different vantage point.

The first part presents the significance of memory laws in relation to rule of law, criminal law and EU policy. These aspects are an inseparable part of modern European democracies and therefore understanding how they interact with mnemonic governance is crucial if we want to understand the changes that democracy is currently experiencing.

In the opening article, Marina Bán, argues that examination of the rule of law standards should take place together with a thorough analysis of memory laws. Based on her research, she points out that mnemonic governance conducted by the State can jeopardize the rule of law in a country.

Charis Papacharalambous goes against relativist claims that truth cannot be established and thus protected through criminal law. His research provides an answer to whether criminal law should be used as a safeguard of historical truth and what happens when we omit it.

Dennis Lichtenstein traces the construction of identity and legislative action of the European Union based on memory. By analysing European Commission presidents’ speeches and the European Parliament resolutions, he shows how the EU incorporates elements of history existing in collective European memory to build the Union’s identity. This common identity is then used as a resource to promote human rights and democracy as well as to discipline member States.

The second part of the volume shows how mnemonic governance poses a challenge to the contemporary legal systems and European societies that share a difficult past, especially that of World War II. Due to its interference with social reality, it also becomes a challenge for science, and as the authors show, especially for political science researchers.

Manuel Becker engages with the same issue while presenting the different meanings of the “Vergangenheitspolitik” in German political science, with a particular emphasis on its distinction from the “Erinnerungspolitik”. The uncertainty of the 21^st century, increases the importance of memory politics and social affirmations rooted in history. Therefore, as the author argues, they should be both incorporated into future research within the political science discipline.

A different kind of problem emerges in the paper written by Klaus Ziemer, which discusses the societal struggles after Germany’s reunification to settle with the past regime. Through the presence of the former GDR’s collaborators and institutions, the past system still exists in the public consciousness. The paper analyses the societal need to re-evaluate the difficult past and transitional justice solutions, through a comparison of legal regulations with their social perception and collective sense of justice.

Finally, Janusz Roszkiewicz examines how national and international courts apply regulations limiting freedom of expression in relation to the Nazi ideology and “Nazi” name-calling. On the one hand, the author shows that courts are reluctant to assess organizations representing Nazi ideology just on the basis of a value judgment (e.g. that they could pose a threat to society in the future). On the other hand, they appraise Nazi name-calling as a value judgment, not a statement of fact, and thus allow it. The author argues that the courts’ praxis broadens the definition of Nazism and exemplifies that dealing with Nazi ideology and history is still problematic for the legal system.

The papers presented in the third section of this publication demonstrate that memory governance also has a very physical dimension. And so, mnemonic governance is executed through modelling of urban space, done specifically through erecting of historical monuments, renaming streets, and crafting laws that regulate what parts of history are permissible in the public space.

Paula O’Donohoe portrays how street names in Madrid were remodelled due to the conflict between a right-wing and left-wing understanding of Spain’s contemporary history, particularly Francoist Regime. By tracing and analysing the history of changes to the urban landscape, she displays that mnemonic governance is political and produces communal remembrance of the past events within the society.

A similar viewpoint is taken by Petra Hudek, who portrays how Czechoslovakia dealt with with the presence of communist monuments and symbols in the public space after the fall of communism. By analysis of legal provisions and societal expectations, she considers whether these objects were cultural and historical heritage, and if their existence in public space was valid. She points out that, after the transformation, the citizens’ need to re-adapt the public space went against legal framework that regulated the protection of monuments at that time, including those erected in the communist-era.

The final part of the publication is comprised of three case studies from Poland, each demonstrating how actors, such as courts, politicians, or scientists, deal with history and shape its perception. The clash of the legal past with the contemporary justice system brings the question of legality and righteousness of judgments that have had a real impact on the lives of many individuals.

Utilizing the case of Grzegorz Przemyk, a victim of a communist regime, Dominika Uczkiewicz investigates the shortcomings of the Polish legal system to adjudicate cases related to the communist past. Through an analysis of the case Przemyk vs. Poland brought before the ECHR, she shows that there is a lack of preparedness of the Polish criminal justice system to investigate all alleged communist crimes or violations of human rights that took place in the communist period.

Sonia Horonziak’s paper outlines the broader problem of memory governance in the context of freedom of research. She presents the legal case of the “Dalej jest noc” publication, which was the subject of an extensive public socio-political discussion in Poland. The fate of Jews in Poland after World War II presented in the aforementioned research publication, was challenged by certain actors who not only questioned the introduced narrative but also extended their critique to all academic efforts to study the Holocaust. An interesting account presented by the author illustrates that governing memory is not only a political issue, but could also lead to troubling outcomes, such as, curbing of freedom of research or undermining of the judicial ruling.

The closing paper, by Konrad Graczyk, focuses on the case of Ignacy Kaczmarek – a Pole who was sentenced to death by the Nazi regime. The article proves the criminality of this judicial ruling, not only on the basis of contemporary regulations but also referring to the existing legal situation at the time of issuing the verdict. The author shows that even a legally fortified system can bend to a top-down narrative that surpasses all legal norms.

Sonia Horonziak and Marcin Kaim