Ren Rmond, "History and the Law"

tudes, No. 4046, June 2006

That history and politics should maintain conflict-ridden and sometimes stormy relations is not a recent phenomenon. As a
long-term activity, politics necessarily connects with the past, whether to dissociate itself from historical events or to use them
as a fertile source of examples and arguments. It thus inevitably has an ambivalent attitude to the way it has been shaped by
history: history at once cements the unity of a people and sows seeds of discord that grow into dissension and difference. For
this reason, governments cannot entirely ignore the writing and handing on of history; this is why they believe, not without
reason, that they have some responsibility in this domain. It is not surprising, then, that politicians are sometimes tempted to
interfere in the production of history and to exploit it for their own ends. One feature of totalitarian regimes is their assumption
that they have the right to twist history to their advantage and to control those whose job it is to discover historical truth.
Nothing is more common than this exploitation of the past. How past events are described is a major source of controversy,
and the question of what some event or another means generates ideological debates and confrontations that are essentially
political. We have seen an example of this in France in recent months the debate on the role the legislature should play in
defining history, which has ignited strong feelings on all sides of the issue.
This commotion would not be worth our notice, except that the situation presents, along with the traditional elements of this
debate, some compelling new features and further implications. The debate addresses the epistemological problem of finding
truth in history and also the role government should play, the division of responsibilities between the legislature and the
historian, the role of law, and access for all to objective knowledge of the past, which concerns nothing less than the theory
and practice of democracy. Do we exaggerate the importance of the subject in invoking all these issues? It is up to the reader
to decide; but we may note that the subject has not only generated intellectual controversy and taken up entire pages of some
newspapers, it has also become a political problem that has obliged the President and the Prime Minister to take a position, got
the attention of all the political parties, and resulted in an appeal to the Constitutional Council, which had to issue a decision.
Above all, this affair has revealed that a mechanism has been put in place that poses a threat to the objectivity of historical
study and may well lead to the subordination of history to political ends.

The Ptr-Grenouilleau affair

We may briefly summarize the basic details of the affair. On Saturday, June 10, 2005, the awards jury for a prize instituted by
the Senate to recognize a historical work that meets scholarly standards and also contributes to the citizens education
announced its choice after lengthy consideration: it gave the award to a book by Olivier Ptr-Grenouilleau on the slave trade,
published by Gallimard in the prestigious Bibliothque des histoires. On the occasion of this award, the Journal du dimanche
published an interview with Ptr-Grenouilleau highlighting the comprehensive nature of his research: he was interested in the
phenomenon in the broadest sense, and not only in the Atlantic slave trade, that is, the triangular trade initiated in Western
Europe. Asked how he would define this historical phenomenon, he said he viewed it as a crime against humanity, but would
reject the term genocide, which implied systematic extermination of members of a specific ethnic group, since the slavers,
motivated primarily by business interests, obviously had no wish to see the disappearance of the merchandise they expected to
make a profit from.
This response, which is simple common sense, was not to the liking of everyone, including some groups still haunted by the
memory of that tragic period. A collective from the Caribbean, Guyana, and Runion, drawing on the law that permits groups to
bring civil actions against those who deny such crimes, brought suit against the author of the book. Thus a historian, whose
peers saw his work as impeccable and in no way contrary to his responsibilities as a historian or a citizen, suddenly found
himself being prosecuted and liable for substantial penalties, on the initiative of plaintiffs with no special competence in the
subject. Historians are discovering to their amazement that any research on controversial topics has become risky, and have
become generally aware of the mechanisms now in place that compromise their independence as well as their research and the
dissemination of its results.
The situation suddenly revealed in this way is the outcome of a series of legislative initiatives, the expression of a typically
contemporary mindset.

International tribunals and the duty to remember

One cause of this newly created problem is the call for justice by people in general, who are no longer prepared to see the
perpetrators of collective crimes go unpunished. In this respect, Nuremberg which we had believed would be forever a unique
event because it was tied specifically to the Second World War and because the crimes committed by the Third Reich were
unprecedented has become a popular legal precedent. It has left a legacy, and the concepts and definitions it instituted have
acquired renewed relevance. International tribunals have been set up for war crimes committed during the conflicts that
marked the breakup of the Yugoslav Federation and for the bloody massacres in Rwanda. In an initiative that is even more
decisive and more fraught with implications it would not be unreasonable to say that it marks a radical break in the entire
history of humanity the negotiators of the treaty signed in Rome in 1999 and ratified as of this writing by more than one
hundred nations established a permanent criminal court with worldwide jurisdiction, specifically to try crimes against humanity.
The formation of these tribunals is built on the assumption that all political acts have a moral dimension, and attests to the
emergence of the idea of the collective responsibility of humankind on a global scale. It is accompanied by another radical shift,
which also affects our relationship to the past: the idea that some actions have no statute of limitations. In contrast to the
universal practice by which crimes can no longer be prosecuted after a given period, and even bringing up past events can be
illegal, in our century the effect of time on memory has been deliberately eliminated for a particular category of crimes.
Forgetting is forbidden even wrong. Remembering has become an ethical and legal obligation. Our age has invented the
duty to remember. Remembering is not only desirable as a source of knowledge, it is also and even more so a moral
imperative, and failing to do it is wrong. This duty is a selective one: it only applies to crimes. It is justified by the duty to give
victims their due consideration: it is only right that they should survive in the popular memory. It is also a form of reparation:
by remembering, we apologize for what could not have been foreseen or prevented. By acknowledging its faults, a people
becomes nobler. This attitude on the part of political and civil society echoes the Catholic Churchs recent practice of remorse
on the spiritual plane. A final consideration on which the duty to remember is based is the enormity of the crimes concerned.
They have revealed the depths that human nature can sink to, and constantly reminding us of them forces us to be aware of
the ever real possibility that they may be repeated, acting as a warning that needs to be restated over and over.

The introduction of historical memory laws

These considerations, each more worthy than the last, which have profoundly changed our relationship to the past, have clear
implications for the status of history in society. They have justified intervention by the politicians: once remembrance had
become a civic duty, the legislature could not possibly allow contrary opinions to be asserted in public about events on which
the courts or, at the least, the general public had stated a position. They would be failing in their duty of respect, and also
condemning the victims a second time, belittling their suffering, permitting doubt to enter the minds of those who could not
form their own opinion unaided, and interfere with civic education. Surely the politicians would have a duty to adopt measures
in this regard in short, to legislate. This is the origin of what we now call the historical memory laws, which concern the
determination of historical truth.
These considerations were particularly forceful in opposing those who improperly call themselves revisionists those who deny
outright the reality of the criminal policies of the Third Reich, under the pretext that they are simply applying the critical
approach that is central to the historical method. Now if there were ever an indisputable historical event it is the Shoah, so

much so that there can be only two possible explanations for denying it and for the mindset of those who deny it: deliberate
bad faith (to what end?) or a type of flawed reasoning familiar to epistemologists, that is to say hypercriticism, the
exaggeration of the minds normal critical faculty. The proposal for a law that would make the denial of recognized crimes
against humanity a punishable misdemeanor, presented in 1990 by the former Communist Party minister Jean-Claude Gayssot,
was generally favorably received an unprecedented crime called for a special response.
Anyone opposing this initiative would have given the impression of belonging to the camp of the Holocaust deniers and
supporters of Jean-Marie Le Pen, who claimed to view that tragic event as a mere historical detail. However, some more
perceptive historians already had a premonition of the consequences that might follow from this new idea Pierre Vidal-Naquet
and Madeleine Rebrioux, who could never be suspected of sympathy with the arguments of the Holocaust deniers, were
rightly concerned about the directions this legal innovation might take. Subsequent events have justified their concern and their
vigilance: although it was meant to respond to a unique situation, the Gayssot law has spawned an entire family of historical
memory laws that have neither the same justification nor the same legitimacy.

Caught in the trap

Under pressure from organizations that have been campaigning for these measures for some time, reinforced by deputies
whose constituencies include sizeable Armenian communities, in 2001 Parliament passed a law that includes a sentence as
short as it is peculiar: France officially recognizes the Armenian genocide of 1915. Thats it. An additional sentence states that
this law will be enforced as a law of the Republic. What does this statement mean? Does it mean that anyone who has doubts
about the genocidal nature of massacres whose actual occurrence no one would deny has broken the law and could
consequently be prosecuted? This was precisely the misfortune that befell the leading Oriental historian Bernard Lewis, even
before this law was passed: he was convicted by a French court in a case brought by an Armenian organization, resting upon a
provision of the Gayssot law that makes it illegal to deny the existence of crimes against humanity. But there is a giant leap
from the Gayssot law to the Armenian genocide. That law concerns events in which the French were involved either as victims
or perpetrators, so there is some reason for the official representatives of the French people to express their views on the
subject. In the case of the massacres of the Armenians, subjects of the Ottoman empire, this country was not involved in the
slightest. So why not also pass laws dealing with the massacres of the Indians by the Spanish conquistadors or the American
colonists? Furthermore, this case takes us further back in time, from 1945 to 1915. Most of all, it expresses an absolute
judgment about an issue on which scholarly opinion is not unanimous: while no one disputes that the Turks killed hundreds of
thousands of men and women in appalling circumstances, were they carrying out a deliberate plan to exterminate every last
Armenian? That is the question that historical research cannot neglect. In addition, calling this event genocide trivializes the
concept first developed with reference to the Shoah, thus diluting its specific and unique character. The net effect of this
second historical memory law was to create a kind of competition among the victims: what these laws have in common is that
they only address persecution, at the risk of replacing a collective understanding of the past with the disgruntlement of specialinterest groups that define themselves through their unique historical experiences.
The third of this family of laws, named the Taubira law after the Senator from Guyana and passed on May 21, 2001, is not
open to the charge of targeting a historical event of no concern to France, since it condemns the slave trade and the practice of
slavery, which have a long history in the French colonies. But it ranges much further back in time, since the slave trade was
outlawed more than two hundred years ago and slavery was abolished in 1848. Those who actually suffered physically from
these practices are long gone, and their existing descendants belong to the fifth or sixth generation descended from them, but
the law recognizes their right to preserve remembrance of the slaves and the honor of their descendants, and to bring suit
against anyone who denies or makes light of these events. This became clear in the Ptr-Grenouilleau case. How far back in
time must we go? To the Crusades or the Albigensian massacres? Why should Protestants not demand reparations for the
persecution they suffered after the revocation of the Edict of Nantes? More and more of the historical memories of these
special-interest groups are threatening to erupt, shattering our shared national memory, pitting each member of the family up
against the others. Why make laws only about past crimes? By implication the Taubira law puts colonialism on trial by
presenting it in a purely negative light. It is a fact, of course, that under the Ancien Rgime, and for centuries, colonialism was
accompanied by slavery and the slave trade, but it is also a fact that, from the mid-nineteenth century on, it led to wiping out
the slave trade and abolishing slavery in the French colonies. Crossing the line judiciously drawn in the Constitution of the Fifth
Republic between the legislative and executive powers, which restricts the former to defining the general principles of the
educational system, the Taubira law brashly asserts that the curriculum and the research programs in history and the
humanities will give the slave trade and slavery the consequent place they deserve. Besides leaving us at a loss to tell what
counts as consequent place how many class periods during the school year, how many pages in the textbooks? it
ventures into a sphere that requires professional and scholarly expertise, thus opening the way for a confusion of roles and
responsibilities.

The takeover of history

The Taubira law denounced colonialism; the law that followed it rehabilitated colonization. The former requires teachers to fulfil
a quota; the latter dictates the judgment they must present. Educational programs shall recognize, in particular, the positive
role of the French presence overseas, notably in North Africa, and treat the history and the sacrifices of veterans of the French
army originating from these territories in a properly appreciative way. The crucial step has been taken: the legislature dictates
an interpretation of history to the teacher and takes the place of the historian. Although this law goes well beyond the previous
one, the two are nonetheless united: the second would probably not have been proposed if the first had not incriminated the
events of colonialism. One law is the obverse of the other: they invoke the two faces of the historical record by opposing them.
They thus need to be judged on the same terms. To seek the repeal of only one of them would be to make a political choice
dictated by ideological reasons: to demand the repeal of the Taubira law would be to exonerate colonialism, but to seek the
repeal only of the second law would be to accept that colonialism had only a negative impact. By contrast, to campaign for
their simultaneous repeal would be the approach of a properly scholarly view of the independence of history, a field whose aim
is to describe the complexity of social reality and demonstrate its ambivalence.
This sequence of historical memory laws, which are likely to go on multiplying, is a quite novel and very worrying phenomenon
for scholarship, for education, and I do not hesitate to say for the exercise of the rights of the citizen and for democracy.
The fear of a lawsuit will inevitably incline people to avoid problematic topics. What scholars will dare to engage questions that
could put them in court? What research director will be rash enough to involve young scholars in dangerous investigations,
following Olivier Ptr-Grenouilleaus painful experience? Whole pages of history will be left blank or else the knowledge
vacuum will be filled by the proclamation of State-sponsored truth. If this interference of politics in the determination of
program content and the establishment of historical truth were to become widespread, the result would be the takeover of
history by those who hold political power and the disenfranchisement of ordinary citizens.
So when a group of historians, concerned about this development, took the initiative to bring it up with the politicians, they did
not only mean to advocate for the right of historians to work in complete freedom, with no constraints imposed by the state:
they acted in the name of the right of every citizen to have access to unbiased knowledge of history. Contrary to what some
people seem to think, historians do not claim a monopoly on the past: they simply possess professional competence. They fulfil
a societal function for the common good, one they have in effect been assigned to carry out. History does not belong to them
any more than justice belongs to judges or public health belongs to physicians. Since they are not the owners of historical
truth, they must respond to societys demands. This is why some of them were not unwilling to appear in court when the major
trials arising out of the Occupation were being conducted but on condition that they could remain on their own ground, that

of actual events, and not be expected to confuse the truth of law with the truth of history. It is historians job to establish the
facts, put them in perspective, and propose explanations for them. They are not forbidden to make use of legal terms (for
example, in asking whether genocide was committed or not) or even ethical terms: historians are not abandoning their role
when they express moral disapproval of crimes.

The role of politicians

What about the politicians? They too have something to say. There is no reason why they should not publicly express their
reactions to some dramatic event or another; they may even be representing the reactions of the general public. But their
involvement must admit of two constraints. Unless they have personally investigated the event just as a historian would, and
have reached conclusions about it based on properly historical considerations, their status as representatives of the state does
not qualify them in the least to decree the truth and choose between conflicting interpretations. This should go without saying,
but perhaps it needs to be set down in black and white; in the debate on the historical memory laws, members of parliament
were heard to invoke the fact of their elected position and claim that they held their mandate from the sovereign people, as
proof that they had the competence to determine historical truth. This confuses political legitimacy with the legitimacy
conferred by the competence earned through scholarly activity. No members of parliament would remotely suppose that their
status entitled them to pronounce on the phenomena of the natural sciences or biology, such as the laws of fluid mechanics or
the secrets of the genome. It is precisely because of this division of labor that expert committees are created to inform
legislative action and governmental decisions. Why should it be any different with respect to human history? In protesting
against the principle underlying these historical memory laws, historians remind us of the need to respect the differences
between roles and spheres, even as they reaffirm that the domain of history, the guardian of our collective memory of the past,
belongs to everyone. Moreover, the list of these historical memory laws clearly shows what considerations underlie their
adoption essentially electoral ones, which are certainly not to be dismissed outright, but which have more to do with feeling
than reasoning, lack any scientific legitimacy, and confuse the interpretation of history with history itself. They all arise out of
the same desire, as felt by specific religious or ethnic communities to persuade the nation as a whole to take seriously their
particular past experience, by taking history as a whole hostage. It is against this exploitative view of the past, which results in
the fragmentation of the collective historical memory, that historians have taken a stand.
The second constraint on political interference in the way history is interpreted has to do with the form it takes. Both past
experience and the current controversy prove that it should not take the form of a law. Politicians have every right to express
their opinions about history, but they do not have the right to do so through the activity specific to their occupation, namely
passing laws. Adopting a statute is not the same thing as merely taking a stand, as in the case of petitions drawn up by
intellectuals, which are presented all the time but soon forgotten by the general public. What the law intrinsically does is to set
rules, define standards, and institute constraints. But when this is combined with the opportunity for pressure groups to take
legal action, the law establishes some remarkably effective mechanisms. It is to defuse these mechanisms and neutralize this
process that historians have called for the repeal of all the historical memory laws, even if they have misgivings about including
the Gayssot law on account of its unique features. But was it not that very law that set this vicious sequence of events going?
In any case it seemed clear that the time had come to call a halt. In this respect, the result was all that one could have wished
for. The President of the Republic and the Prime Minister immediately proclaimed that it was not the job of the legislature to
write history. The Constitutional Council rejected the paragraph of the most recent law that interfered with educational and
research programs in an unconstitutional way. The group that had filed a complaint against Olivier Ptr-Grenouilleau withdrew
their action, citing very interesting reasons: that their initiative had not been understood either by the general public or by the
intellectual community. This is a sign of the value attached to the idea that scholarship should be independent and that history
should not be a weapon or a tool in the controversies that divide us. History
must continue to be the common property of all.

Ren Rmond,
founding member of Libert pour lhistoire

PS: But we have just learned that Socialist Party members in the Assembly are
getting ready to propose a law providing for penalties of up to five years
imprisonment for anyone who denies the Armenian genocide. This means treating it as parallel to the Shoah and extending the
provisions of the Gayssot law to it. Politicians are utterly incorrigible, and feelings win out over reason