Między negacjonizmem a dyfamacją. Ustawodawca jako moderator dyskusji o przeszłości

Abstract

The article is a legal and philosophical contribution to the discussion on the juridisation of history - a process of interference by legislator and the courts with public debate about the past. This debate has various dimensions - it embraces academic discourse and mainstream media, but also artistic expression as well as individual assertions, including statements disseminated in social media. The discussion is not always grass-roots driven and spontaneous - it is often animated and controlled top-down as a part of deliberate actions taken by states or interest groups. The formulation of narratives referring to the past is a key element of the politics of memory by countries and nations competing for “moral capital” or striving to achieve other goals. The array of available tools in hands of the ones in charge of politics of memory include also legal instruments, both of an affirmative (establishment of "official truth") and prohibitive (criminalization of certain assertions) nature. The law may be an instrument deployed in order to prevent dissemination of statements contrary to historical truth or conflicting with the collective memory of the past. The goal of such a legal interference may be the protection of dignity of the victims or preservation of good name of states and nations against libelous assertations. The laws of memory may therefore be either anti-negationist or anti-defamatory. In the former case, they are to set the boundaries to historical revisionism, whereas in the latter – to protect against libel and defamation. In both cases, they create specific legal taboos that restrict freedom of expression. The article takes on a complex set of legal and philosophical questions related to the juridisation of history. Its main focus are the so-called memory laws enacted in various jurisdictions as well as judicial practice (national and international) regarding remembrance of Holocaust and other crimes committed during World War II.