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In memoriam: Holocaust monument on the banks of the Danube in Budapest. Neil via Flickr, CC BY-SA

Law can enshrine a country’s history, but it is a citizen’s right to question it

The Lithuanian capital Vilnius has a public monument honouring the US rock star Frank Zappa. To place the statue in a prominent public space required a special law to be passed in 1992. It was seen as a deliberate symbol of the country’s break from its Soviet-bloc past, the remnants of which were being swept away – including statues of Communist era heroes such as Lenin and Stalin.

Was this a frivolous use of law? Sure, it was deliberately eccentric – yet all nations use law in one way or another to mould collective understandings of the past.

The Vilnius law happens to stand at a rather extreme end of what law is and does. After all, there’s no obvious way one can violate it. It’s certainly not the kind of law that punishes anyone for doing anything. A judge might slap a fine on you for defacing the monument, but that is true of most property, public or private, whether it’s the bust of a rock star, the door of a local tax office, or your neighbour’s grinning garden gnome.

If we swing to the opposite extreme, the use of law to shape popular historical memory suddenly becomes bleaker. Systemic executions and labour-camp imprisonment of whole families threaten any North Korean who openly challenges the state’s official history.

A particular group of laws – as old as law itself, yet only recently studied as a distinct type – can be called “memory laws”. They embody the countless ways in which nations use law to mould popular understandings of history.

As we probe the Vilnius law more closely, it turns out to be less whimsical than it might at first appear. The sculpture overtly satirises a chilling past, when ubiquitous, taboo-laden images of state-approved heroes had been planted throughout Soviet-dominated nations. During the Cold War, such “art” could be ridiculed only in whispers.

Satirical: Frank Zappa memorial in Vilnius. Ville Hyvönen via Wikimedia Commons, CC BY

The lesson is one we must learn forever anew: a government’s legitimacy is reflected in the degree to which it tolerates its citizens lampooning and deriding it. Lithuanians have today gained the freedom to detest Zappa the man as loudly as they wish, along with any understandings of history that his image memorialises.

To be sure, not all Lithuanian laws and practices are equally enlightened. Pandering to local post-Soviet nationalism, the state has brought a few nasty prosecutions against elderly Holocaust survivors on trumped-up charges of wartime collaboration.

Still, in a curious way, the Zappa display shows at its very best how a government can use law to promote a view of the past. The monument exists precisely to invite responses openly critical of any state-approved history.

Passionate debates

Along that spectrum from Vilnius to Pyongyang, states devise countless ways to inscribe their preferred versions of history into law – not only of their own past, but of any number of historical events.

In several countries – Switzerland, for example – it is illegal to openly deny the Armenian Genocide. Those laws have been challenged, however, on grounds of free speech. Meanwhile Turkey has prosecuted citizens who question state policies denying that any genocide occurred, notably the novelist Orhan Pamuk.

Armenian Genocide: still a matter for debate in some countries. Project SAVE, CC BY

The fact that European standards governing the Nazi and the Turkish genocides often differ has sparked furious debates. The denial of the Jewish Holocaust is treated differently by European states – because, according to some, of Europe’s closer ties to it.

Even if we accept that distinction, however, European laws are scarcely unanimous. Many Germans passionately support laws against Holocaust denial, while Britain looks sceptically on imposing criminal penalties as a means for structuring either popular or academic discussions.

Human rights

The use of law to shape historical memory is sometimes benign, then, and yet sometimes atrocious. But despite the vast range of memory laws, from silly to solemn to sinister, what unites them is that states rarely bother with law for non-contentious histories. So perhaps the best way to judge a state’s overall attitude towards human rights is to observe its attitude towards history.

We may certainly question, for example, the wisdom of Holocaust denial laws in states such as Germany or Switzerland. But what stands out in such democracies is that those laws are the exception that prove the rule – in general these countries admit the most relentless scrutiny of their pasts and their politics. At the same time they are states with, if not impeccable, certainly solid records within the post-World War II systems of international human rights.

That’s no coincidence. There are vital human rights, such as prohibitions on torture or guarantees of a fair trial – to which many states further add rights to minimum levels of food, clothing, shelter, education, or employment. Yet it is an error to see free expression about controversial issues as “just another right” on a “checklist” of human rights. The fundamental attitude necessary for a state to secure human rights is an attitude inviting no-holds-barred criticism of its actions both present and past.

That is what memory laws reveal. If you want to know where a state’s ethical compass lies, if you want to know its attitude towards human rights, then yes, look by all means at its official version of past events – but look above all at the freedom of its citizens to challenge that version.

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