Memory Laws, Rule of Law, and Democratic Backsliding: The Case of Poland

Abstract

This article argues that the memory laws adopted during the democratic backsliding in Poland from 2015 to 2023 are a perversion of classic European memory laws that aimed at safeguarding democracy from internal dismantlement and protecting the rights and freedoms of individuals from social ills, such as in the case of Holocaust denial. The new wave of Polish memory laws was an element of an anti-liberal turn in Poland and contributed to a further move away from the rule of law, human rights, and European legal standards. The mechanisms adopted in those laws are removed from their stated official purposes and are examples of penal populism and populist revanchism instead of transitional justice. This article argues that adopting such memory laws was possible due to democratic backsliding and that they reinforce the erosion of democratic standards by restricting the rights of individuals. Moreover, the politically subordinate Constitutional Tribunal’s reaction to the motions about the constitutionality of these memory laws further evidences a systemic lack of independent, centralized judicial review. This phenomenon has far-reaching, negative consequences for democratic standards.