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Criminalizing History

Legal Restrictions on Statements and Interpretations of the Past in Germany, Poland, Rwanda, Turkey and Ukraine

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Edited By Klaus Bachmann and Christian Garuka

Why do states ban certain statements and interpretations of the past, how do they ban them and what are the practical consequences? This book offers an answer to these questions and at the same time examines, whether the respective legislation was supply-or demand-driven and how prosecutors and courts applied it. The comparison between Germany, Poland, Ukraine, Rwanda and Turkey offers several surprising insights: in most countries, memory law legislation is supply driven and imposed on a reluctant society, in some countries they target apolitical hooligans more than intellectuals or the government’s political opponents. The book also discusses, why and how liberal democracies differ from hybrid regimes in their approach to punitive memory laws and how such laws can be tailored to avoid constraints on free speech, the freedom of the press and academic freedoms.

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Introduction

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Can we learn from the past, and if yes, should we?

Most people in liberal democracies would probably answer both questions positively. Media coverage, political speeches, commemorations, schoolbook content and literary and academic production in such countries tend to be full of allegations, claims and references to the past, which all have one common denominator: the assumption that we should analyze, assess, and discuss the past to avoid a repetition of our and our ancestors’ bad experiences.

Several aspects of this approach are problematic and one is internally contradictory. First, the all-encompassing character of this assumption leaves those, who want to apply it, with the problem to define whose experiences are more important for “learning from the past” than others. There is no such thing as a homogenous national or otherwise collective experience, which could serve as a focal point for defining what exactly should be remembered and commemorated and how. Before the advent of individualization, nations, ethnic and religious groups and states were eager to emphasize heroes and their accomplishments as reference points for commemorations. Individualization, the development of a legal culture of Human Rights (for which the individual human is the predominant bearer of rights) and the focus on victims have redefined the way we think about learning from the past. Today, learning from the past means giving victims a voice, commemorating victimhood, condemning perpetrators and “dealing with the past” in a critical, often collectively self-critical way, which tends to exonerate the individual by...

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