Françoise Chandernagor, "The historian at the mercy of the law"

Liberté pour l’histoire, CNRS Editions, 2008

The “national narrative,” that immense family saga, which for the last hundred and fifty years has underpinned the teaching of history in

France, is in pieces: it has broken apart under the simultaneous opposing pressures of globalization and identity politics, for which it was

expected to justify both the broadest sense of community and the narrowest sectarian loyalties. Not everyone will mourn its passing. In the days when it was disseminated in schools, enshrined in public monuments, and reaffirmed in

ceremonies of commemoration, this core narrative of national identity was doubtless too “generally positive.” It was built around the heroes

recognized by the Republic and the most glorious pages of France’s past, back to the ancient Gauls. It obscured all or part of the darker side of the past, erased differences, downplayed conflicts, and left out the figures whose merits or struggles did not fit neatly into the overall

narrative; the average person was thus as ignorant of Toussaint Louverture as of Henri de La Rochejaquelein, Olympe de Gouges, St.

Bernard of Clairvaux, Jean Cavalier, Jean Chouan, Louise Michel or Esclarmonde of Foix.

However, as simplistic and optimistic as it may seem today, this “official” narrative had never been forced on academics, scholars, journalists, or writers, nor on their adult readers: everyone could add to it or challenge it. That option was taken up with a vengeance: the

history of the Revolution, for example, has been a battleground fought over by the historians. But that the political authorities could impose

their version of history through the law – that is, by coercion – was something nobody could then have imagined. In France, as in other democracies, no “dissident” historian risked imprisonment; methods of that sort remained the preserve of totalitarian regimes, whether

Fascist or Communist.

As it began to break apart, the national narrative has gradually opened up a space for the histories of specific groups, which are all the more charged with emotion because they used to be repressed. Moreover, the individualism that has come to dominate our lives seemed to justify

subjective readings of history. Not only was history no longer that of a single community, but no scholarly authority was seen as having the

power to establish and narrate the truth.

Every vacuum eventually gets filled: seeing this empty space, politicians, sometimes with the support of their “clientele” of voters, went on the offensive. Now, in bits and pieces, in schools and at public ceremonies, another history is beginning to be told. That this history focuses

on remorse rather than positive example, and on diversity rather than unity, calls for general discussion. But jurists especially cannot help but

be struck, even disturbed, by the unprecedented character of this development: that is, this new “narrative” is enshrined in law. It is not only proposed, taught, and celebrated: it is imposed on every citizen without exception under pain of legal sanction.

By putting itself in the place of both historians and educators, Parliament has, in effect, begun to decide and dictate its conception of the

“history of France,” and – why stop there – even of world history as a whole. It does not restrict itself to commemorating events or authorizing reparations, which would be its proper role; it claims binding force for its own interpretations of the past, has sole power to

describe past events, and forbids disagreement with its decisions. If we are not careful, these dangerous laws will soon have horrified

historians up before a judge at a moment’s notice.

Rewriting the past Dangerous laws? First let us not suppose that there are any harmless laws. A law is neither a token measure nor a placebo, even if it may

look like one. Of its nature, a law is a rule, an obligation: it must be observed and applied, and the one who breaks it may, sooner or later, be brought to justice. The legislature, therefore, should only utilize the law respectfully and carefully.

Unfortunately, it turns out that unlike parliaments in other countries or the Assembly of our own Third and Fourth Republics, since 1958 the

French Parliament has not had the right to vote on resolutions, declarations, proclamations – mere words, in short – that may be politically

important but are legally neutral. If it wants to console or to please, the Parliament of the Fifth Republic has no choice: it must make use of the law.

This predicament is here to stay. In late 2007, in fact, the Balladur commission proposed, as part of the institutional reform project, to allow

Parliament to voice its feelings on some subjects by means of a simple “resolution.” But in April 2008, when the vote on the proposed reform of the Constitution was taken, the amendment in question was removed. Some feared, and not without reason, a return to the

parliamentary demagoguery of the Fourth Republic: at that period, a government that had secured a majority for the passage of a law could

fall as the result of the concurrent adoption of an opposing resolution. In any case, as a perceptive speaker noted during the debate, now that we have adopted these bad habits and laws get passed although in other democratic states resolutions would be sufficient for the purpose, no

lobbyist will be satisfied with a mere resolution when a fellow-lobbyist, who got there quicker, can benefit from a real law.

Not a chance of reform in that respect, then. When our Parliament wants to express sympathy, compassion, or legitimate indignation, it will

continue to pass laws, sometimes very brief ones (some are no more than a single line of text), which are often imprecise, usually cobbled together, but laws all the same, and as such can set judicial machinery in motion.

However, in recent years, for the reason outlined above – the collapse of the national narrative – one area in which these “declarative” laws

are most applied is the past, including our rereading of the past in the light of the present and our rewriting of it in modern terms. It is true that for politicians, intervening in what is “dead and gone” has many advantages. Aside from the fact that it is easier to change the

past than to improve the future, large sections of the electorate can be satisfied without spending a cent. Politicians also take on the most

desirable of roles, that of a righter of wrongs, at no risk to themselves, since all the criminals to be subdued are long since dead. “Criminals”

they may indeed be called, since it is chiefly through the use of the concepts of genocide and crime against humanity (at the risk of attenuating the force of that term) that Parliament is currently undertaking a wholesale revision of world history.

Disentangling good from evil since the dawn of time, condemning all the villains in hindsight, and punishing those who dare to excuse past

misdeeds because they happened long ago – who could be upset by this? No one except, once in a while, those who teach or study history. Or those who read it. Or any citizen who believes in the free expression of opinion, as long as it is not offensive, hateful, or racist.

Five laws and a framework decision The specific legislation concerning history already passed in France consists of five laws and one European Community framework decision,

which was voted in after being proposed by France.

The first of these laws, the one that the most ink has been spilt over (even though it is not the most poorly worded), is the Gayssot law,

relative to the genocide and other crimes committed by the Nazi leaders who were tried at Nuremberg. It is true that by prohibiting and penalizing the disputing of the Nuremberg judgments, and of subsequent judgments handed down in France on the same legal basis, Article

9 of this law set a dangerous precedent of principle. Previously, although a final legal judgment had the absolute status of a res judicata

(meaning that no appeal could be made against it), it could still be a topic of debate by historians. With the Gayssot law, however, judgments for the first time became sacred and untouchable. A new legal category – historical truth – was implicitly created by introducing into the

1881 law about the press and into the Penal Code a brand-new misdemeanor, dispute (not, as is often supposed, denial, a concept that in any

event would have been more appropriate to the goal in view and legally easier to grasp). This “disputing” offense can be punished by

imprisonment, and has been on several occasions, but an exact penalty is not defined by the law intended to curb it. This is left entirely to the discretion of the judge, which has the advantage of being flexible but the disadvantage of being arbitrary.

The other parts of the Gayssot law, which was directed primarily at curbing new forms of anti-Semitism, were well thought out and well

drawn up. But Article 9, although with the best intentions in the world, opened a Pandora’s box. It quickly generated intense competition in the arena of historical memory, which soon led to more legislation and more proposals of a similar kind.

In January 2001, French citizens of Armenian origin obtained the passage of a law “recognizing the Armenian genocide of 1915.” In May of

that year, Parliament voted the Taubira law which, responding to citizens of the overseas departments in particular, recognized officially that the Atlantic slave trade was a crime against humanity. Similarly, also in that year, the French government introduced the draft of a

framework decision in the European judicial system, to be legally applicable in all Member States, dealing with the trivialization and

complicity in trivialization (terms even looser than “disputing”) of any event previously defined – by whom, the text does not specify – as a

“war crime,” a “crime against humanity,” or “genocide.” In February 2005, the Mekachera law, “relative to the gratitude of the nation toward its repatriated French citizens,” asserted the “positive role of the French presence overseas” and, in terms virtually modeled on those

of the Taubira law, required history teachers and scholars to take this interpretation into account more fully in their work. In October 2006,

the National Assembly adopted the Masse proposal, which extends to the 2001 Armenian law the penalties specified by the Gayssot law for those who dispute that genocide. On the model of this second “Armenian” law, a bill was presented to extend the repressive mechanism of

the Gayssot law to the Taubira law as well.

Over the next two or three years, a dozen other bills were filed for consideration by the Assemblies, defining as crimes against humanity or

genocide a number of historical events, both long past and recent, in France and elsewhere. The latest of these focus on the “Gypsy genocide,” the “Ukrainian genocide of 1932-1933,” and the “genocide in the Vendée of 1793-1794.” A Swiss organization has lobbied some

deputies for recognition of the horrible massacre of the Swiss Guards in the Tuileries in 1792, and several organizations are apparently now

working to have the atrocities committed by the Crusaders in Palestine defined as a crime against humanity. And why not go back to 1099? After all, the Taubira law already covers events that happened in the fifteenth century. In some cases, for instance the war in Algeria,

contradictory bills have been filed, reflecting the “clash of histories” – the crimes against humanity committed against the Algerians (the

suppression of the FLN demonstrations in Paris in 1961) versus the crimes against humanity committed by the Algerians (the assassinations of pieds-noirs and Harkis in 1962).

As we observe this massive release of collective feelings, it should be remembered that in the case of the Gayssot law Parliament did not

claim to be the sole determiner of historical truth. It did at least draw on an international court, the Nuremberg Tribunal, and on international

agreements, reached in London and incorporated into domestic law, for the proof and the definition of the events that people were to be forbidden to dispute. But historians all agree that the preliminary investigative work carried out by the judges at Nuremberg was of

extremely high quality. Unfortunately, when legislators intervene or claim the right to intervene in history today, they do so in the absence of

judges, historians, or commissions of inquiry, and go with their “gut feelings.” This is more troubling. To complete the picture of the threats historians are facing, we may add that five more bills have been filed, designed to extend automatically

the repressive apparatus of the Gayssot law to anything that in years to come may be recognized by Parliament as a crime against humanity,

no matter when and where it was committed. An automatic extension to the St. Bartholomew’s Day Massacre – well, why not? This at any rate is what might happen with respect to the EU framework decision, submitted by France in 2001 and brought before the

Council of Ministers of the EU in 2007, then forwarded for an advisory opinion to the European Parliament in Strasbourg. If it were to be

adopted in 2008, during the French presidency of the EU, though without first specifying that the misdemeanor of trivialization should only

apply in the case of genocide or crimes against humanity in recent times (those, for example, condemned by the International Criminal

Court), all the “history” laws passed by the French Parliament would include, both retroactively and into the future, an automatic provision: that is, no one would be able to make a move in the field of history without risking three years in prison (which is the specific penalty chosen

by the European judicial authorities). Would France, which initiated this law, then be inclined to agree to the demands of the Baltic

countries? In return for their support, they wanted the Council of Ministers of the EU (which in Europe has the legislative power) to define the massacres committed in the twentieth century by the Communist regimes as crimes against humanity – hence protecting them from being

disputed and trivialized.

Of course the enormity of these various crimes is undeniable. But where should we call a halt? Should this “French virus” not be prevented

from spreading throughout Europe before it is too late? Surely we should hasten to put an end to this pattern of alternate accusation and self-flagellation, which, under the pretext of prohibiting disagreement about a list of historical events that grows longer every day, has only one

real victim – freedom of research and of expression.

Although in January 2006 the President solemnly declared that “it is not the job of Parliament to write history,” France continues, locally and globally, to pose as the guardian of world memory and the champion of atonement via the law. France is always ready to confess to sins – as

long as they were committed by someone else. Is this an excess of humility? Rather, an excess of self-importance.

The sin of anachronism This political development is all the more regrettable in that both the form and the content of the “history” laws already passed are open to

criticism: their form often violates the law, and their content sometimes violates the past.

These laws, it must be said, are not always in accordance with Articles 34 and 37 of the French Constitution. While it is famously said of the English Parliament that it “can do anything except change man to woman,” the French Parliament does not have so much power. The 1958

Constitution, approved by 85% of the population, limited its range of activity: anything that is not expressly mentioned in Article 34 as being

within Parliament’s purview is out of bounds to the legislature. Is it necessary to point out that Article 34 nowhere mentions educational curricula, teaching methods, or research programs? All those areas are exclusively the province of government department and the

appropriate administrative bodies (such as program committees).

Parliament knows perfectly well that it is overstepping its limits when it intervenes in these subjects (as in the Taubira law and the

Mekachera law). One has only to read the minutes of the parliamentary debates that preceded the passage of some of these laws. In 2001, for example, the Garde des Sceaux expressly pointed out to the deputies that they were in breach of Article 37 of the Constitution. Some of them

then took the floor to assert that “Since Parliament is elected by universal suffrage, it is sovereign, and can therefore do whatever it likes,”

and their fellow-deputies agreed with them. But by law, Parliament is not sovereign, but gets its authority from the sovereign power, that is to say the people. As such, Parliament is bound by the Constitution, which the people also voted for by universal suffrage. In all

constitutional political systems, the Constitution is above the law. The Constitution establishes the separation of powers, and when one of

those powers ceases to abide by this separation, the freedom of all is threatened. But as long as the government lacks courage, the deputies can safely violate this ultimate legal authority, since they – along with the heads of

the executive power – are the only people who can request a decision from the official defenders of the Constitution. Unlike the situation in

the United States, where there is an “exception for unconstitutionality,” the Constitutional Council cannot be asked to pronounce on a law by

a judge, nor can it pronounce on its own initiative or at the request of a private citizen. At present, laws possibly infringing the Constitution can only be submitted to the judgment of the Constitutional Council by the President, the Prime Minister, the Presidents of the two

Assemblies, or by sixty deputies. There is no point in nursing the hope that one day sixty deputies will rise up to request that a historical

memory law be referred to the Constitutional Council: all, except the last, were passed unanimously on all sides of the chambers. And although in 2006 the second bill dealing with the Armenian genocide was only voted through by a hundred deputies, this is because many

others chose to abstain by leaving town early in the week, perhaps because they dared not face the vociferous groups who had planted

themselves in the chambers.

The Constitutional Council has been consulted only once about a “history” law: the Vanneste amendment, which introduced a reference to the “positive aspects of colonization” into Article 4 of the law of February 2005. It immediately had this article revoked, and it is almost

certain that had the first law on the Armenian genocide or the 2001 law on the slave trade and slavery been submitted to the Council, it

would have annulled them, wholly or partly, as unconstitutional. But its opinion was not solicited, nor will it be.

“Retroactive” legislation These laws that violate the Constitution also violate the general principles that underpin any law, that is to say, the French Declaration of Human Rights and in particular its Article 8, which states that “no one shall suffer punishment except it be legally inflicted in virtue of a law

passed and promulgated before the commission of the offense” – which obviously comes to the same thing as prohibiting retroactive laws.

But these “history” laws are of their very nature retroactive. That is, the law passed on October 12, 2006, which imposes criminal sanctions

on anyone who disputes in any way the application of the concept of genocide to what happened in Armenia in 1915, is not retroactive with respect to the misdemeanor that it punishes: anyone who might want to dispute this event is on notice that from now on he or she risks

imprisonment. What is retroactive is the actual definition of the crime of genocide.

The concepts of crime against humanity and genocide are recent ones. The word “genocide” was coined in 1944 by the jurist Raphael Lemkin to describe the crimes of Nazi Germany. The term “crime against humanity” was recognized in international law in 1945 by the

military tribunal in Nuremberg, and “genocide” in 1948 by a UN agreement.

In French criminal law, genocide exists only as one category of crimes against humanity, but the full legal definition adopted is very

detailed, taking up about fifteen lines of text. The concept, though defined analytically and in specific detail, still remains somewhat vague; the French definition does not correspond exactly to that of the UN, ours being looser, probably for good reason. It is wider than the idea of

extermination based on racial or religious characteristics, by including any extermination based on an arbitrary criterion. To count as

genocide, the “other” must simply be perceived as “other” and systematically exterminated for that reason alone. On the French interpretation, for example, the extermination of the kulaks by Stalin, or of the “intellectuals” (meaning anyone wearing glasses) by the

Khmer Rouge, would count as genocide – a definition which is not altogether a bad one. The EU interpretation, however, as it appears in the

draft of the framework decision under review, is not only narrower than the French one, but also narrower than that of the United Nations, which counts religiously motivated massacres under the overall rubric of genocide. At the request of the British government – which perhaps

feared that they would get into trouble because of Northern Ireland – the trivialization of crimes against humanity and genocide, as these are

implicitly defined today by the European Union, will be illegal only if any religious criterion for the persecution is combined with an ethnic

criterion. In Europe, consequently, white Protestants are still allowed to trivialize their maltreatment of white Catholics (and vice versa), in the same way that black Muslims are allowed to trivialize the abuses they have committed on black Christians as much as they want (and

vice versa?).

It is clear that not only are the legal concepts of genocide and crime against humanity recent ones, but that their very definition is a work in progress. Would this not be one more reason to enforce them sparingly? This is not, it seems, what our leaders think. Although this new

concept is still developing, they have not hesitated to apply it to a crime committed in the fifteenth century (article 1 of the Taubira law). We

are faced with legislative provisions that apply retroactively over a period of five hundred years – an unprecedented situation – and that are, moreover, fundamentally anachronistic. In history, of course, anachronism is the ultimate sin. But how to explain to politicians, who may not

all be fascinated by the discipline of history, that “mentalities” change over time, that neither sensibilities nor moral values are the same as

they were ten centuries ago? What is obvious to a historian is not so to politicians and the media. Surely an educational effort could be made

here to explain these points, an attempt directed at informing public opinion, something that academics have been very wrong to neglect. But to get their points across, now that “diversity” is so fashionable, will they have to phrase their claims for the past in terms of the right to be

different?

Shoddy work In any case, it is not the perpetrators of crimes against humanity, retroactively (and anachronistically) defined, who are to be punished: they

are long gone! So we are to punish the historians: the French Parliament expressly agreed to do so on October 12, 2006. One deputy who had

the courage to propose an amendment which would exclude “academic and scholarly research” from being covered by the second law on the Armenian genocide saw this proposal rejected by his colleagues – who thus confessed quite openly that it was precisely academic research

on certain topics that they wished to ban. By rejecting this amendment, they confirmed what the jurists had foreseen: that academics,

scholars, are targeted by these new penal laws. These dangerous and juridically unsound “history” laws also fail to go through the normal procedure for the preparation of legislation. As

the bills in question are never government “projects” but only private bills submitted by deputies, they do not go through the Conseil d’Etat,

which might at least edit out their infelicities. However, it can happen that the government is in complete agreement with the parliamentary

proposal, and may even turn out to be its instigator: so why, instead of filing a government bill, does it choose this sleight-of-hand trick fronted by a deputy or a senator? Precisely to avoid having it examined by the Conseil d’Etat, with all the timid objections that its experts in

legal wording might advance.

Some of the texts of these bills were so shoddily prepared that they were not even debated in committee by the internal parliamentary body charged with technical improvements to the wording of bills. To avoid this standard vetting procedure, some deputies, connected politically

or sympathetically to certain organizations, factions, or pressure groups, took to introducing amendments in open session. This is what

happened with the Vanneste amendment on the teaching of the “positive aspects of colonization”: it was put on the agenda at the last moment, so that no jurists could determine its implications before it was adopted – as it was, unanimously, we may recall.

That said, this Vanneste amendment which produced such an uproar was, from a juridical point of view, hardly more dangerous than Article

2 of the Taubira law, which required teachers to “allocate a consequent place to the history of slavery.” Consequent? This word, apparently

used here to mean “important,” belongs neither to the French language nor the terminology of the law. What would judges decide if they had to pronounce on it? What is a “consequent place”? Five minutes? Two hours? A semester?

How can anyone take seriously laws that are so poorly worded? How can anyone abide by them? The second law on the Armenian genocide

was so sloppy that its own author spent the days just before the debate amending it himself all over the place: sometimes he proposed a year in prison for “offenders,” sometimes five, and vice versa – all completely at random. In the end, he had added so much and crossed out so

much that he had to file a “cleanup amendment” to restore some order and renumber the whole thing; on the eve of the vote, his proposal

was still a mess. When a law is written in such a slapdash way, who would not be justified in treating it with contempt?

Historians under threat

As well as violating legal standards, these laws can also violate the past. Take the law of May 21, 2001, which, its title says, concerns

“slavery and the slave trade.” Any jurist would naturally be surprised to hear that more legislation is needed on this question, because since 1926 the slave trade has been a crime punishable under international agreements that are directly applicable in French law, and it is already

defined in our Penal Code (article 212.1) as a crime against humanity. But all of that had to do with present or future crimes. In 2001,

something new came along: the judging of the past. Should we really judge the past in a court of law, applying our modern legal and moral concepts to it? And if Parliament thinks we should, if

it deems it useful and necessary to legislate, as it has in this case, for the fifteenth century, why does the body of the text include some fine

distinctions that the title of the law does not lead one to expect? Despite its very general title, it turns out, from article 1 onward, that only the

Atlantic slave trade, and the trade in the Indian Ocean that brought Africans to Mauritius and Réunion, are considered to be crimes against humanity. There is no mention nor condemnation of the Arab slave trade and slavery among the Arabs, nor of the slave trade among African

nations themselves, though all of these were extensive and more long-lasting phenomena: in some cases they continued legally within these

nations, if not internationally, up to the 1980s (in Niger and Mali, for example) and even until 2007 (Mauritania has only just adopted a law which bans slave-owning).

Slavery, a universal crime, is bizarrely reduced by the Taubira law to the slavery imposed by Europeans and the triangular trade. This seems

perfectly reasonable, we might reply, as this is the crime for which the French bear responsibility. That argument might be admissible, except for the enormous confusion regarding the dates involved. France did not officially participate in the slave trade until the late

seventeenth century, but the period covered by the law includes the fifteenth, sixteenth, and seventeenth centuries. So the crime now being

acknowledged by France began to exist before the French began to commit it. France, standing in for the Turks, had already acknowledged

the Armenian genocide; now it acknowledges in law the sins of the English, the Dutch, and the Portuguese, among others. In including the fifteenth century in the time-frame, it even acknowledges the “Atlantic” slave trade in a period before America was discovered!

There is more: In the course of the discussions preparatory to the parliamentary debate, some speakers brought up the enslavement of Native

Americans, saying quite rightly that in South America the European colonists enslaved not only Africans but Indians as well. In support of this point, a reference to Amerindian slaves was added to one article, which that now says the Atlantic slave trade was a “factor in common”

for Africans and Amerindians. We have to confess ourselves perplexed at this point: if Carib Indians were transported to Africa, this news

has been kept secret for some time. But that is what the law says happened, if we read it literally. Are we then required under threat of

prosecution to agree that Amerindians were among the victims of the Atlantic slave trade? If historians are to be hauled before the courts, at least let it be by virtue of laws that are carefully worded and historically accurate, since,

vague as they are, these laws now circumscribe the part of their field that is open to scholars. This at least is how the identity-based

organizations who have taken on the responsibility for enforcing these laws understand the situation. In late 2005, the historian and academic Olivier Pétré-Grenouilleau, author of a well-received book, Les Traites négrières, which won the Senate history book award, found himself

taken to court by the Collectif Antillais, Guyanais, Réunionnais et Mahorais (Collectifdom) and the Collectif of the sons and daughters of

deported Africans. The lawsuit was based on this claim: “In saying that the slave trade spanned thirteen centuries and five continents, M. Pétré-Grenouilleau revealed a desire to sidestep the unique character of the Atlantic slave trade by adopting a chronological and geographical

scale broader than that defined in law.” These are the reasons for the civil and criminal suits that historians are threatened by. For what this

lawsuit clearly asserts is that the law defines the official limits of intellectual activity and that anything outside them is prohibited. In future,

when discussing slavery we are not to speak about anything beyond what the law authorizes, that is to say the European slave trade to the exclusion of any other.

But speaking about it at all – that is to say studying, publishing, and teaching it – would still be going too far, to judge by the press release

issued by this same Collectifdom, dated December 15, 2005: “The slave trade and slavery are supra-historical phenomena, in that they are recognized as crimes against humanity.” What a clever sleight-of-hand, to be sure: we cannot talk about the Arab slave trade, because to do

so would trivialize the Atlantic slave trade, but we cannot speak of the Atlantic slave trade either, because Parliament, by recognizing it, has

moved it outside history altogether. History has thus become moot. The End of History. What are French historians to do when they run into a crime against humanity that has been made sacrosanct by a “history” law? Get out of

the way, and find a different line of work!

Who are the descendants of slaves? Faced with this reckless legislative campaign, the more sensible judges are in a bind – firstly because of the mediocre quality of the texts of

the laws they must implement, but also because of their own ignorance of history, in cases where they are required to prosecute well-known

scholars. Bear in mind that the compulsory law school syllabus includes no courses in general history, nor does that of the National School of Magistrates. Most judges thus know no more about past ages than today’s high school graduate – which is to say, not a lot.

Judges are also in a bind because they have no authority to reject lawsuits brought by properly constituted groups. If you bring a complaint to

a prosecutor against your neighbor, it is the prosecutor who decides whether the complaint is serious enough to warrant investigation. But

this does not apply in the case of the “history” laws. Here the complaints are initiated by organizations, and if one of them brings a suit, the public prosecutor is only allowed to verify whether it has been legally in existence long enough (five years) to do so – but if so, prosecution

must follow. A historian can thus automatically be taken to court, even if the suit is completely frivolous. And, moreover, even if the court in

the end rules against the plaintiff, in the meantime the “accused” will have been discredited in the media – “complicity in crimes against humanity” is no laughing matter – and an academic career blighted.

We may add that judicial decision-making is often made more difficult by the multiplication of charges and the forms they take. What the

organizations concerned with historical memory can do is more or less extensive depending on the law invoked. The Gayssot law gives them the power to protect “the honor of the Resistance,” which is historically specific, and “the honor of the deportees,” which is also specific

since deportee is a very clearly defined legal category: after the war, there was an administrative census of the deportees, with identity cards

and so on. The Taubira law, in contrast, gave these organizations broader and more imprecise powers: they are allowed to bring suit to

protect “the honor of the descendants of slaves.” First question: who are the descendants of slaves? It is certainly not a matter of skin color: if I may be permitted to present myself as an example, I have fair skin, yet I am what those who colonized the islands called an “octoroon,” a

mestiza descendant (right down to the surname) of a freed slave. Conversely, there are some blacks of African origin whose ancestors owned

slaves. How are we to tell ourselves apart? Second question: for how long will there continue to be descendants of slaves? Slavery was abolished a hundred and sixty years ago, and today we have reached at least the fifth generation since then. Are we to go on calling ourselves

the descendants of slaves, demanding a “special honor,” for centuries to come – rather like the descendants of the Crusaders under the

Ancien Régime?

The question is all the more interesting in that in the sphere of the historical memory laws the usual statutes of limitations have been extended. For example, normally misdemeanors committed by the press have to be brought to court within three months, but in the case of

the “history” laws this is extended to a year. In civil cases, however, the usual statute of limitations is thirty years, during which it is possible

to demand compensation under the category of “moral damage” as stated in Article 1382 of the Code: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.” Historians thus have no way of knowing for how

long or when they might be taken to court for something they write today.

Moreover, the litigating organizations can bring suit about the same offense in both the civil and criminal courts at once. Cases become even more entangled because there are so many single-issue organizations, often created ad hoc to “exploit” a historical memory law, who operate

unpredictably. This was the case in the Pétré-Grenouilleau affair: when Collectifdom, daunted by the active response of other historians in

his support, withdrew their criminal complaint, other organizations immediately took up the issue, though less raucously, in the civil courts,

one after the other – and this harassment, which is all it is, seemed to be endless. The Paris Tribunal de Grande Instance has, we may hope, put an end to this by fining one of these organizations, the Mouvement pour une nouvelle humanité, for abuse of the system on March 10,

2008. But it is self-evident that this type of harassment, so widely publicized, may lead many scholars to practice self-censorship.

Hereditary crimes If the more privileged – deputies, ministers, journalists, heads of organizations – are plunged into such a state of confusion on the issue, how

can we expect the general public to respond to it? It seems to be at a loss, and inclined toward obscurantism. The confusion of terminology in

French law results in a competition for the role of most victimized group; it is the absence of a statute of limitations for a sin that turns it into a form of sacrilege. The statute of limitations is another legal concept misunderstood by the victims, by the general public, and – which is

less excusable – by the media. They all view the absence of a statutory time limit on guilt as normal: since time has no beginning or end, the

legal responsibility for a crime and the right to reparations, financial or otherwise, are presumed to last until the end of time. Sins are to be punished all the way back to the sons of Adam and for all eternity to come.

In this context we need to bring up the meaning and the history of the inclusion of article 213.5 in the French Penal Code. Under the Ancien

Régime, certain crimes, called “imprescriptible,” or inalienable, were punishable up to the death of their perpetrators; these included “sacrilege” and “lèse-majesté.” The Revolution, taking a more modern line, decided that all crimes would have a statute of limitations of

twenty years, meaning twenty years from the date the crime was discovered.

It may be that today, because of longer average life expectancy, this period is too short even in common law. Be that as it may, after the

Franco-German rapprochement of 1963, fearing that the last Nazi war criminals would escape punishment, in 1964 France decided to extend the period of possible prosecution for crimes against humanity, which had originally been set at twenty years, in line with all other crimes.

But rather than extending it to forty or fifty years, it was decided that these crimes would be “imprescriptible,” enjoying no statute of

limitations at all. In this case it came to the same thing, since in criminal law being “imprescriptible” simply means that a crime can be punished as long as the criminal is alive – up until death, but, of course, not after it.

That is not, however, how the term was understood by the general public. Due, no doubt, to a confusion with the political-philosophy

concept of “droit imprescriptible” or inalienable right, which appears in the French Declaration of Human Rights, in the minds of the

citizenry this penal concept came to lose its proper legal meaning: today, the word “imprescriptible” applied to a crime is seen as synonymous with “unforgettable” or “irreparable,” and inevitably in due course, “hereditary.” The punishment of the crime should go on, it

is generally believed, even after the death of the criminal: in short, crime is inherited, passed down from generation to generation, not even

stopping at the third and fourth, as the Bible puts it. This notion of hereditary crime little by little leads to another one, utterly contrary to “enlightened” thinking: collective guilt. Since you

cannot put skeletons on trial, and it would be difficult, centuries later, to find the direct descendants of the perpetrators, guilt passes to the

“presumed” descendants taken collectively, that is, to a whole nation, a present-day nation. By contrast, we may recall that at Nuremberg, although the crimes judged were of unprecedented atrocity, it was not some “eternal Germany” that was convicted but twenty-two Nazi

leaders.

Words and deeds It is clear that this movement has come to take on quasi-religious overtones. We are seeing how sacrilege is constructed: the victim, in

present-day society, has the aura of the sacred. Suddenly the writing of history and academic research finds itself subject to the discretion of judges and legislators, as it once was by the churchmen of the Sorbonne.

“Right-thinking” people today go so far as to demand that the law treat speech and action as one, assimilating opinions to acts. Proof of this

return to magical thinking can be found in an article about the second Armenian law published in Le Monde on October 10, 2006, and signed

by ten lawyers. Clearly in favor of this law, they wrote that to dispute “the reality of genocide is not simply equivalent to misinterpretation of a political crime. It is participation in it.” They also demanded that any attempt to dispute the genocidal character of an event should be

removed from “the special sphere of freedom of the press ... and freedom of expression” and repositioned “within penal law, along with

other physical acts intended to obstruct justice,” and lastly that any contestation of this type be “recognized as an offense related to genocide.”

We may note that for centuries the legislature – and even the confessional – has distinguished mere intention and verbal aggression from

physical aggression. If we were to follow those zealous lawyers, we would find ourselves little by little stepping back into those barbarous

ages when thought was confused with action and a spoken insult was considered as criminal as a dagger-thrust. *

he only democratic country that has imposed this kind of “history” laws on its citizens is France; and the declarations of some of its political

figures show that it prides itself on continuing in this direction. On October 12, 2006, a deputy speaking in the Assembly chamber said, “We do not leave medicine to the doctors, so why should we leave history to the historians?” This is a mere fallacy, needless to say. True, we do

not “leave” medicine to the doctors in one sense – the government defines, fortunately for us, the conditions under which medicine is

practiced. But we have never seen Parliament replace doctors’ diagnoses and prescriptions with its own opinions, and we do not line up outside the Palais Bourbon to be cured of scrofula. Yet what are the deputies currently doing with the past? Replacing the historians’

“diagnoses” with their own. In so doing, they put scholars in the custody of judges: who can say for sure – especially with respect to ever

more remote periods and countries – where the disputes and trivializations to be prohibited by our new laws will begin and end?

Nothing is more fragile than freedom of expression; nothing is more constantly threatened. A century ago, another set of well-meaning deputies sought to make “insulting the Republic” a misdemeanor. Clemenceau, unquestionably a defender of the Republic, got up and said,

“My esteemed colleagues: I stand here to urge you to permit people to insult the Republic with impunity. With the best intentions in the

world, you are directly opposing the principle of freedom. For I defy any lawyer to enter this Assembly and tell you by what sign a judge will recognize that discussion has stopped and insult has begun .... And if nobody knows the answer to that question, I will say that you are

making a law based in arbitrary judgment, not in freedom.” Any discussion, even when nothing about it is obviously offensive or hateful,

can be seen as insulting – insulting to those whose feelings on a painful subject are wounded, or to those whose political or religious convictions are affronted. It can be insulting, too, when it is based on fallacious arguments and misinformation. But let us remember that

societies whose citizens live in contented harmony, with no debate and no conflict, are

also societies where there is no freedom.

Françoise Chandernagor

Vice-president, Liberté pour l’histoire.