Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse

Abstract

There are countless ways in which law shapes public awareness of history. The concept of ‘memory laws’ denotes only a small subset, and even that concept breaks down into several types. We must distinguish, for example, between non-regulatory and regulatory norms; and, as to the latter, between the punitive and the non-punitive. More importantly, we must identify law’s effect on historical memory even where no such consecrated law is in question. Despite differences of approach and cultural context, a shared, arguably defining feature of law as a tool of historical memory is that it adds expressive weight to a preferred version of history while rarely if ever adding substantive weight. Public discourse about history may ideally be unlimited as to time and viewpoints aired, but ends up in practice inevitably limited by sheer temporal and material constraints, rendering law’s weighting role within public discourse often appreciable and sometimes decisive.

Keywords: discourse theory, free expression, history, law and history, law and politics, law and society, memory laws