The controversial amendment to the 1998 Polish Law on the Institute of National Remembrance, signed into law in February 2018 by Poland's President Andrzej Duda, would have been a prime example for Nikolay Koposov’ study on laws regulating memory. The amendment, proposed by the ruling Law and Justice (PiS) party and approved by the Polish parliament on the eve of Holocaust Remembrance Day (January 27), was to impose sanctions of up to three years imprisonment on “those who publicly and notwithstanding facts attribute to Poland or the Polish Nation the co-responsibility for the Nazi crimes committed by the Third German Reich … or for other crimes that constitute crimes against peace, humanity or military crimes or those who in another way diminish responsibility of the actual perpetrators of those crimes.” The paragraph highlights country and state, yet as many experts have pointed out, the vague wording of the law would allow the criminalization of anyone who addresses the involvement of Poles in German-led atrocities. Recent attacks on scholars like Jan Tomasz Gross and Jan Grabowski, who have contributed much to our understanding of Polish-Jewish relationships during the German occupation, support an interpretation of the law as a thinly veiled attack on those who advocate for a critical view of Polish history that, among others, addresses antisemitism and the robbery and murder of Jews by Poles. The criminal penalties for violators of the law were rescinded in June 2018, mostly in an attempt to repair the damage to the Polish-Israeli relationship and to prevent the European Union from stripping Poland of its voting rights in Union matters.
The conflict revealed the ruling party's commitment to enshrining a version of Polish history in which Poles are perpetual victims and by law exempt from culpability for historical injustice—silencing such deeds effectively denies that they happened. Alongside the amendment, there are systematic efforts to promote the memory of Poles who aided Jews and, in several cases, were punished for it. This memory is important, yet the imbalance between highlighting these behaviors on the one hand, and the efforts to criminalize an exposure of the participation of Poles in Nazi crimes on the other, showcases the connection Koposov illuminates, namely, the way in which memory—the reconstruction of the past—is being regulated, legislated, and weaponized for distinct purposes. The book can serve as a lens to observe and analyze the ongoing Polish debate. It goes far beyond that, however, by suggesting a framework to make sense of the proliferation of laws that “in a broad sense … regulate collective representations of the past and in the narrow sense [prohibit] Holocaust denial and other similar legislation” (2).
Koposov is not the first to study the complex relationship between memory and the law. Caroline Fournet's The Crime of Destruction and the Law of Genocide: The Impact of Collective Memory (2007) turned to the inherent flaws of the Convention on the Prevention and Punishment of the Crime of Genocide to demonstrate why genocide memory is faulty. In 2017, Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias edited a collection of essays, Law and Memory: Towards Legal Governance of History, on select national, European, and international laws that regulate memory and are supposed to play a crucial role in the creation of an integrated European value system. Published shortly after Koposov's monograph, Emanuela Fronza's Memory and Punishment: Historical Denialism, Free Speech, and the Limits of Criminal Law (2018) considers the seemingly contradictory European tendencies to regulate memory and to protect free speech, highlighting the potential of new technologies to create new facts. Some of these volumes were developed by members of the EU-sponsored group “Memory Laws in European and Comparative Perspectives” (MELA), a consortium tasked with studying the relationship between memory laws and the values of democratic citizenship, political pluralism, and fundamental human rights. In sum, there is an increased recognition of both the possibilities and pitfalls of legal frameworks for the construction of memory, namely after many such laws were crafted in direct response to demands for accession to EU membership.
Koposov pursues a different approach. As an intellectual historian, he is interested in the capacity of memory laws to reflect larger cultural trends, and how collectively shared ideas of the past come to both reflect and guide political (and legal) agendas. Rather than take memory laws as a given, he grounds his analysis of the juridification of memory in an exploration of a shift in the historical consciousness of western nations. Subsequently, he turns to the spread of memory laws from western to eastern Europe and their increasing tendency to undermine pluralistic conversations about the past by relying on mythologies of victimhood and heroism. The volume thus offers the first, and very rich, comprehensive analysis of memory laws in eastern Europe and Russia and will be a staple for any further inquiries into the matter.
Koposov develops a trajectory that begins with laws against Holocaust denial in Germany (1985) and Israel (1986). The French Gayssot Act (1990), which Koposov discusses in some detail in the Introduction and in Chapter 1, followed in this vein. These first laws, prohibiting particular statements on the past, were largely borne out of a democratic impulse and to combat against racism and antisemitism. After five national memory laws in 1980, in the 1990s there were nineteen, in the first decade of the 21st century—twenty-seven. Alongside the increased number of memory laws, there is also a shift with regard to their content and purpose. Rather than protecting victims of historical injustice against further insult and humiliation, newer acts aim to protect states.
Examples include Article 201 in the Turkish criminal code, which criminalizes the denigration of the Turkish nation and is used to silence people who identify the massacres of Armenians and other minorities by the Ottoman Empire in 1915 as acts of genocide. Likewise, article 345.1 of the Russian criminal code, introduced in 2014, rehabilitates Stalinism by prescribing three years of imprisonment (note the parallel to the Polish law) for those who “publicly spread false information about the USSR's activities during the Second World War.” As a result of this shift, some historians—including some who initially supported the Gayssot Act—began to warn against unanticipated consequences and turned to defending the craft of History against attempts to curtail it.
What, then, facilitated the rise of these attempts to govern the writing of history? Koposov makes clear that the aim of many memory laws in eastern Europe is, in fact, an escape from the past. Rather than facing the ways in which fascism and communism attracted and relied on the participation of locals, both are presented as external sources of victimization, as for instance in early Polish and Hungarian laws.
But Koposov locates the root of the rise of memory laws in western Europe in a larger shift from the age of ideologies to the age of memory. The legislation, thus, is for him a historical phenomenon in itself, indicating a new way in which the past is imagined. Whereas “the old past” was structured around master narratives, the “new past” revolves around “singular events that are perceived as sacral symbols of particular communities rather than philosophies that offer explanations of global history and legitimize projects of the future” (302). This “event-centered historical consciousness” (ibid.) gives voice to previously marginalized groups and runs parallel to the increased recognition of diversity within particular societies. The twist, in Koposov's account, is the striking difference between western and eastern European memory laws. The former reflect a focus on the memory of the Holocaust (and, one might add, other atrocities such as the Francoist massacres and practices of disappearance) and the preservation of national heritage, whereas the latter were mostly triggered by requirements for EU membership on the one hand, and “as a continuation of local legislative traditions, including decommunization laws” (305), on the other. These, in turn, show a general rejection of anti-fascist and anti-racist sentiments motivating the earlier laws. In addition, Russia's official narrative of the past follows a broad anti-Nazi direction, which motivates other formerly socialist countries to deny such a clear position.
While Koposov rejects misinterpretations of east European politics of memory as primarily nationalist and anti-Russian reactions, he still articulates that “the lion's share of responsibility for the memory wars in Eastern Europe … goes to Putin's Russia” (308). One may wonder whether this sharp criticism is a result of Koposov's longstanding expertise and critical publicity in what he calls the nationalistic politics of memory in Russia and which, to a certain degree, forced him to leave his home country. The discussion of Russia seems to overwhelm the analysis, evidenced in content as well as the difference in chapter lengths. Particularly Chapter 3, “Memory Laws in Eastern Europe” lacks some nuance. Whereas Russia and Ukraine are the subject of separate chapters (Russia even of two), Poland, Hungary, Lithuania, Slovakia and others are lumped together, and others like Belarus, Moldova, and Bulgaria are completely absent. This omission marginalizes necessary specificity regarding, for instance, the notion of self-victimization that, Koposov argues, “has become so typical of Eastern European politics with respect to the past” (138).
Furthermore, this reader remains somewhat unconvinced, considering, for instance, the most recent iterations of the so-called memory wars (a concept Koposov does not clearly define). Conflicts such as in Poland reflect a continuous unwillingness to face up to complex historical experiences such as collaboration, participation, and benefit. Such an analysis would require a discussion not only of memory laws, but of their subject as well. To study memory without history is tricky. In this vein, it may have been helpful to consider the counter-movements to intensely problematic memory laws. Just like the Spanish film makers who began to document Franco's crimes despite the “pact on forgetting,” Polish readers defy the new government's assault on memory and turn to recently available micro-studies of Polish localities during the German occupation. Others recover and restore former synagogues and Jewish bathhouses, acknowledging the losses that the atrocities committed by occupiers and locals left behind.
Whereas the author defines memory (late, on page 48) with Pierre Nora as an “‘artificial hyperreality’ that seems to be rooted in natural transmission of knowledge but is in fact produced (often unintentionally) by various agents of memory, including states, public associations, mass media, historians, and journalists” (48), for the most part he does not consider these various agents. He therefore misses the opportunity to measure the effect of memory laws beyond the construction of state memory, or Memory, just as historians for a long time failed to offer the history from below by focusing on History.
The book is at times challenging to read; many side-observations are interesting but distract from the main points. The Conclusion provides a much more succinct account of the central questions and insights of the book than the somewhat meandering Introduction and may serve well as the entry point for the book. Nevertheless, Memory Laws, Memory Wars deserves a wide readership among scholars and others interested in contemporary Europe and Russia.
