Table of Contents: I. Introduction: the Special Section and the MELA Project. – II. Mnemonic constitutionalism and a wider challenge of mnemocracy. – III. Mnemonic constitutionalism in Hungary. – IV. Mnemonic constitutionalism in Poland. – V. Conclusions.
Abstract: This Article summarizes the conclusions for the Special Section on memory laws that was published by European Papers in two parts over 2020, and explores the nexus between the emerging phenomenon of mnemonic constitutionalism and democratic backsliding. It looks at their interactions through the lens of the legal governance of history and the historical policy implemented by the Central and East European (CEE) States, with Poland and Hungary as the prime subjects of consideration and analysis. The mushrooming of memory laws in CEE throughout the 2010s, which went hand-in-hand with democratic backsliding in the region, is well documented in the Special Section. Memory laws (lois mémorielles) initially emerged as a specific phenomenon within criminal law in Western Europe almost three decades ago. However, the recent wave of memory laws in CEE transcends criminal legislation and has acquired constitutional significance, which this Article analyses under the heading of mnemonic constitutionalism. After setting out an analytical framework of mnemonic constitutionalism, the Article focuses on the two specific CEE examples of Hungary and Poland. In the last decade, both countries have promulgated either constitutional (in case of Hungary) or quasi-constitutional (in case of Poland) provisions that indicate a strong turn towards mnemonic constitutionalism. The Article concludes that Fidesz (in Hungary) and PiS (in Poland) regimes perceive mnemonic constitutionalism not only as an ideological basis for the governance of historical memory but also as an ontological foundation to justify “illiberal democracies”.
Keywords: mnemonic constitutionalism – memory laws – rule of law – illiberal democracy – Hungary – Poland.
* Senior Researcher, T.M.C. Asser Institute, University of Amsterdam, firstname.lastname@example.org.
** Senior Researcher, Polish Academy of Sciences, email@example.com. The Authors would like to thank Katharine Booth and Chianna Shah for their assistance on this Article, as well as the editors of the Special Section, Grażyna Baranowska and León Castellanos-Jankiewicz, for their endeavour and helpful feedback.