Ioanna Tourkochoriti, Harvard Law School and National University of Ireland, Galway, School of Law, is publishing Challenging Historical Facts and National Truths: An Analysis of Cases from France and Greece in Law and Memory: Addressing Historical Injustice by Law (U. Belavusau and & A. Gliszczyńska-Grabias, eds., Cambridge University Press (2017).
The denial of crimes against humanity is a criminal offense in various European legal orders, e.g. France. The European Union has endorsed this approach through a Council Framework Decision that crystallizes legislation already existing in a number of Member States and asks others to consider enacting measures criminalizing this category of speech. This paper discusses the dangers for academic freedom from the need to express our collective disapproval of atrocities against humanity through memory laws. Memory laws serve collective needs, they express collective imaginaries that can be associated with a national identity or with a European conception of shared values. Drawing from Durkheim’s analysis of the collective consciousness it signals the dangers that exist when the irrational elements that form this consciousness win over the rational elements. Memory laws can serve to prescribe or proscribe an official version of historical truth. Using the mechanisms of state constraint against opinions that are contrary to this official version of the truth can be very dangerous for individual and collective liberties. This paper examines a number of cases where courts have imposed legal sanctions to those who made claims either denying the Holocaust, or challenging elements of national identity that seemed unacceptable to national authorities as well as legislative proposals attempting to impose an official version of historical facts. It also points out inconsistencies in the relevant case law of the European Court of Human Rights.Download the essay from SSRN at the link.