Memory Laws as a Misuse of Legislation

Abstract

Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.