Manual POLITICS, JUSTICE & the RULE OF LAW:Presidential & General Elections 2010 Political Realities

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They sometimes impose criminal penalties on speech or conduct deemed offensive to the plight of heroes or victims. In that punitive form, memory laws impose limits on democratic freedom of expression, association, the media, or scholarly research. Yet memory laws reach beyond the bounds of criminal law. Children everywhere grow up reading state-approved texts designed to impart not merely a knowledge, but an interpretation of history. Apart from the fact that memory laws thus defined will always be explicit applied commemorations in the meaning of Savelsberg and King, a question could be asked what makes the relation of memory laws to memory so special that it justifies creating a new concept.

The same question could be posed to other authors active in the field of law and memory studies. First, there are legal regulations with decisive impact on how the past is remembered and represented which are highly identity relevant but need not have a readily exposable link to any narrative of historical events, such as laws regarding commercial, land and mortgage registers, marriage registers, inheritance etc. Collective memory is not only used, but also produced by the law, but it would be simplistic to equate legal governance of memory with references to state-sponsored tales of glorious or inglorious past.

In fact, not to put too fine a point on it, the very fact that the law was, from a certain point on, written down or much later codified, constituted a huge coup of legal governance of memory, although it would push the definition too far to classify the great codifications of 19th century as memory laws. In a number of events, does not in itself prevent any person from saying otherwise. Whether it even decreases the probability of such an occurrence is debatable and cannot in any case be taken for granted.

The point is, however, that some laws go much further.


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They not only express commitment to a certain vision of the past, but they also prohibit any other vision from being voiced. The goal and the function of such laws is distinct from other applied commemorations: they are aimed at eliminating alternative narratives of the past from public circulation.

They do not just declare a certain view of history to be right: they declare other views to be inadmissible. Thus, they provide for a direct transposition of the vision of the past enshrined in a law into a governance of expression of memory.

While causal link between the vision of the past advocated by the state in a form of leges imperfectae and the memories of a society is far from obvious, the effectiveness of a direct transposition of that vision into an enforceable law is much less contestable. I believe this distinction should not be underrated. Consequently, I would insist that in order to avoid blurring the edges of the concept of memory laws beyond operationability its application should be limited.

At present, there is a large class of legal norms in which the expression of memories of the past is a direct object of regulation, and the explicit goal of the regulation is to ban certain memories from being expressed. The difference between criminal proceedings against a single perpetrator on a specific set of charges subject to penal sanction according to an applicable law and a general endorsement of a certain vision of history in a sanctionless and unenforceable form is evident both from the point of view of regulatory technique and social function of the regulation.

Criminal proceedings do produce a certain vision of the past which can have an effect on collective memory see Osiel The same is undoubtedly true of declarations such as constitutional preambles and, to some extent, constitutions in general see e. Criminal proceedings, memory laws and applied commemorations such as constitutional preambles are all plausible means of memory politics. This is the common denominator of all legal phenomena discussed above and many others, including school curricula, public memorials and national holidays.

But to call them all memory laws would make any differentia specifica of the term vanish. I am using the notion of commemorative lawmaking to address the laws and regulations which do not directly govern the expression of memories of the past, and which are not related to the past by way of explicit or implicit statements by official agents acting in their official capacities.

The notion of commemorative lawmaking covers the cases in which the connection between law and memory is construed by way of framing beyond the lawmaking itself. To sum up: in my understanding, a law criminalizing Holocaust denial is a memory law it prohibits expression of a certain view of the past , and an applied commemoration a certain view of the past is expressly involved in the normative content of the law and both explicitly and implicitly referred to in the process of lawmaking.

A lustration law, on the other hand, is not a memory law.

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It usually does not prohibit anyone from remembering or declaring in any form whatsoever that they were, say, an active collaborator of a totalitarian regime. Moreover, a lustration law in its basic form need not even prohibit a public endorsement of a past regime. A lustration law is, of course, an applied commemoration, because it will usually be explained, either explicitly or implicitly, by a reference to a specific view of the past. But it is directed against people, not against their views. The goal of lustration can be that the truth about the past be told and that lies be curtailed, but this goal not very specific: in many branches of law in many legal cultures truth is a cherished value and lying is discouraged or sanctioned.

As opposed to both memory laws and applied commemoration, commemorative lawmaking consists in transforming laws into means of memory politics by relating them to a certain memory apart from the normative content of the law and references to memory in the lawmaking process.

The discourse surrounding the legislation can be saturated with symbols, words, concepts and phrases referring to a vision of the past and made to bear upon the legislation by a set of techniques which I propose to divide into three categories: bricolage, retouch and re-stylization. Memory politics of PiS has developed and adapted to various political and social configurations. In what follows, I present the examples of bricolage, retouch and re-stylization in order to demonstrate the link between law and memory and to put the notion of commemorative lawmaking to empirical use.

The cases have been collected so as to show the nuances of the interplay between applied commemorations, memory laws and commemorative lawmaking. A bricoleur does not act in compliance with any preconceived set of rules: she puts pre-existing items—things, signs, symbols, thoughts, ideas and thinking patterns—together in new ways, putting them to any use as the current need dictates. A bricoleur is by definition an opportunist.

PiS draws on the available memory resources for items which can relatively easily be transformed into a part of alternative historical narratives. The recurrent speculations regarding the Polish claim on war reparations due from Germany in 9 is but one of the many examples of how memories of the last world war are revived by reframing them as a highly pertinent issue of day-to-day politics see Stoll et al. As a result of which the social carrier for these newly combined memories had to be invented, too: there was and probably still is no group in Poland which would hold a view of the past according with its rendition by PiS.

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It therefore directed its efforts at projecting its vision of memory on Polish society as a whole: collective memory would become national memory. Research of national collective memories, the headline under which a large part of memory studies operate nowadays, relies on the assumption that nations as imagined communities see Anderson have sociological substrates in the form of national societies sharing common collective memories. The same assumption underpins the memory politics of PiS. But, while scientific risk of essentializing nations and producing an artifact of national societies may be reduced by accommodating plurality of memories and multitude of social carriers of memory, including not only nations, but also regional and local communities, classes, families, religious and ethnic groups and social movements, political consequences of nationalizing memories may very serious if they leave no place for plurality.

PiS strives to provide Polish society with a single common memory frame in order to advance the thesis that nation and society are coextensive and homogenous, and that they are united by a single common history which may be adequately and truthfully the category of truth features greatly in PiS rhetoric narrated by a single storyteller from a single perspective.

POLITICS, JUSTICE & the RULE OF LAW:Presidential & General Elections 2010 Political Realities

The main role of the revived memories of World War II is to upkeep the ideal of national unity, homogeneity and singleness. But the same effect can be achieved by using items coming from a very different period: probably the most illustrative case of memory bricolage is the way in which PiS managed to reframe the Polish Constitution of The link between memory politics and constitutional law is straightforward enough.

Positive law is a paradoxical creation best summarized by Luhmann, for whom the development of positive law leads logically to the emergence of modern constitutionalism as a final stage of evolutionary positivisation of law Luhmann The fiction severing validity of law from any non-legal considerations, a prerequisite to autonomy and self-referentiality of the legal system, results in the systemic impossibility to evoke non-legal ground for validity of law, including the political context of its drafting and adoption. The law determines what is and what is not the law.

This obvious fiction depends for its effect on the compliance of social actors. If they fail to comply for any number of political, economic or cultural reasons, the splendid isolation of the legal system is compromised. In the case of Poland, a combination of factors undermined the autonomy of law in the Luhmannian sense. Poland entered XIX century as a partitioned land with no state independence and little or no self-government, depending on the time and the region.

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Moreover, even the proud tradition of constitutionalism, dating back to the Constitution of the 3 May , arguably has little consequence today. The May Constitution was the last will of Polish Enlightenment, a monument to political philosophy alienated not only from the local juristic customs and social environment, but also from the political reality. Its cultural image, fixed by song, iconography, and school education, it that of a proud emanation of national accord and the act of benevolence of the enlightened elites.

However, this glorious constitution was never tested in practice; it was a phantasm of order, and maybe owing to its phantasmal nature it became the Polish constitution par excellence. Current Polish Constitution of has no holiday of its own. Its 20th anniversary in went virtually unnoticed. It would be worthwhile to examine systematically the impact of the myth of May Constitution on its late successor, for the contrast could not be more striking.

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In the end, the invocation to God is and is not there at the same time. The preamble metonymically depicts the spirit of the Constitution as the child of the Round Table of , with its careful wording and detailed regulatory approach designed to establish political compromise but in fact fostering division. Bricolage usually involves focusing on an item an event, an idea, a legal act susceptible of reframing due to its narrative ambivalence.


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The memory bricoleur puts the Constitution in the context of the communist past, discarding its novelty and taking it out of the frame of change into the frame of continuity and preservation of status quo. The intrinsic historical connection between the Constitution and the political developments in the immediate aftermath of , including political wars between various opposition factions is simply put aside: bricoleurs do not observe the intrinsic links between the items, they only focus on their functional potential. By the same token, when the laws on Constitutional Tribunal were amended by PiS in late , the whole process was presented as an instance of restorative justice, abolishing the legacy of post-communism supposedly embodied by the Tribunal see Sadurski b ; Bucholc and Komornik Reiteration of the motif of post-communism can be found in many other instances, including, among other things, the reform of the judiciary discussed in Sect.

The tendency to stress the one and only aspect of reality, in this case the ubiquity of post-communism, is a manifestation of a goal-oriented monomania combined with almost infinite flexibility that constitutes a mark of a bricoleur. The situation after begged the question why the Constitution was defended so weakly. First and foremost, its presence in the collective imagery of Polish society was not prominent see Witte and Bucholc Habit and usage which could support it were too recent to hold against the conspicuous lack of symbolic resources supporting specific constitutional principles, including the rule of law.

In particular, it lacked the usual foothold of constitutions in long-standing democracies: institutional and cognitive embedding in the legal professions with their education, knowledge and know-how, and with their internal, group-related frames of memory, which are potentially capable of resisting the external impositions by agents of state-sponsored memory politics.

Of course, the very distinction between internal frames of memory of legal professionals and the external frames of memory, whether generated by the politicians, by the civil society or otherwise may seem artificial in light of the fact that legal professionals do not live and act in a cultural void, and that they are neither immune to cultural or political pressures, nor unaware of them. Legal professions have both a vested interest in and a good chance at defending the rule of law see Dieng This is one of the good reasons why legal professions are usually targeted by regimes striving to undermine the rule of law.

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This is also why the story of decline and fall of the rule of law is so often a story of decline of the legal profession for the notable case of Weimar Republic see Ledford As far as rule of law as a constitutional principle of Polish state was concerned, the legal professions had very few assets at their disposal. Both in and in the connection to any pre-war constitutional experience of Poland, such as it was, was virtually non-existent and the interpretations of the rule of law had to be transplanted from abroad, mostly from German doctrine of Rechtstaat Brzezinski : ff; Morawska Paradoxically, it was not until the constitutional crisis of was unleashed when the anti-government protesters raised the Constitution to the rank of a postulated core identity item both for the lawyers and for the general public.

Cover wrote:. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.