Publication – ‘(Legally) binding memory’

Sévane Garibian, ‘(Legally) binding memory?: Uncertainties arising from decision no. 2012-647 DC of France’s Constitutional Council’, in Droit et Cultures, “Espaces des politiques mémorielles: Enjeux de mémoire” (2013) 66:2.

Despite reports to the contrary, the debate in France over the so-called “memory” laws has yet to be resolved. The proof of this is to be found in the volume of comment generated by the latest episode in a soap opera that has been dividing opinion for more than a decade: the striking down of the 2011 Boyer law, which sought to sanction the denial of the existence of genocides recognized as such by the law, in an eagerly awaited ruling pronounced on 28 February 2012 which, at the risk of disappointing some parties, blurred the terms of the debate. For this ruling clarifies neither the constitutionality of laws considered as non-binding (such as the law of 29 January 2001 recognizing the Armenian genocide) nor that of the principle of sanctioning genocide denial (which is still only covered by the Gayssot law). And that is not all: an analysis of the Constitutional Council’s confused decision reveals an active avoidance of making a ruling on these two points – an  avoidance which looks suspiciously like being strategic in nature – thus bringing a whole range of issues into question, including the Gayssot law itself, which France’s lawgivers have, paradoxically, placed in jeopardy.