Militant Memory and the Rule of Law

Aleksandra Gliszczyńska-Grabias

Professor of International Human Rights Law at the Institute for Law Studies, Polish Academy of Sciences and was NYU Law School Fellow (Bekker NAWA Programme, 2026)

Introduction

Historical memory has become one of the most contested terrains in contemporary constitutional democracies. Across different political systems, governments increasingly seek to regulate collective remembrance, define acceptable interpretations of the past, and institutionalize national narratives through legal mechanisms. This phenomenon may be described as militant memory — a form of collective recollection that actively protects itself against perceived falsifications, distortions, or challenges to an officially endorsed understanding of history. At its core, militant memory emerges from a legitimate concern: societies traumatized by war, authoritarianism, genocide, or colonial violence often strive to preserve historical truth and prevent denialism. Laws criminalizing Holocaust denial in Europe, for example, were originally designed to protect democratic values and prevent the resurgence of extremist ideologies. However, under conditions of democratic backsliding, memory laws may gradually transform from protective instruments into tools of political domination. Instead of safeguarding historical truth, they may serve to enforce a singular, state-approved narrative of the past. This tension raises an important constitutional question: can the legal regulation of memory be distorted and abused under conditions of a rule-of-law crisis? The experiences of Poland and the United States increasingly suggest that the answer may be affirmative.

Militant Memory as a Legal and Political Phenomenon

Militant memory may be understood as a form of historical recollection that actively defends itself against perceived distortions. The concept directly refers to Karl Loewenstein’s theory of militant democracy, originally articulated as a response to the totalitarian threat of German Nazism. Militant democracy postulates legal and institutional mechanisms designed to curtail the rights and freedoms of actors pursuing anti-democratic agendas. Transposed into the domain of collective memory, it encompasses such measures as bans on Holocaust denial and on the incitement of ethnic or religious hatred. Yet the legal codification of memory creates significant risks. Once the state becomes the arbiter of historical truth, political authorities may instrumentalize memory laws for partisan purposes. Historical interpretation ceases to remain an open field of scholarly debate and instead becomes subject to governmental control. This process is particularly dangerous during periods of democratic erosion, when institutional safeguards such as judicial independence, academic freedom, and media pluralism are already under pressure. Under such conditions, militant memory becomes not merely a symbolic project but also a mechanism through which political actors consolidate power. The law thereby shifts from facilitating democratic deliberation to policing historical legacies.

Poland: Memory Laws and Political Pressure

Poland provides one of the clearest contemporary examples of militant memory operating within a broader context of democratic backsliding. Between 2015 and 2023, the ruling Law and Justice Party (PiS) and its right-wing populist coalition extensively pursued a politics of historical memory centered on Polish national heroism, martyrdom, and resistance. One of the most controversial measures was the 2018 amendment to the Act on the Institute of National Remembrance, named as the Holocaust Bill. The law introduced criminal sanctions for publicly attributing responsibility or co-responsibility to the Polish nation or state for crimes committed by Nazi Germany during the Holocaust. Although the criminal provisions were later softened following international criticism, the legislation produced a chilling effect on historical research and public debate. Critics argued that the law was not designed primarily to protect historical accuracy but rather to shield a preferred national narrative from scrutiny. Historians examining cases of crimes committed by Poles during the Second World War faced legal threats, reputational attacks, and political pressure. In several instances, courts became arenas for adjudicating historical disputes that would ordinarily remain within the domain of academic inquiry. These developments occurred alongside a rule of law crisis, characterised by the systemic assault on judicial independence, repeated political interference in judicial and prosecutorial decision-making, and the incorporation into the Polish justice system of individuals appointed in accordance with political will rather than constitutional procedures. Consequently, courts adjudicating memory-related disputes came under increasing political pressure, while judicial independence became progressively more fragile as politically sensitive historical controversies were transformed into legal disputes.

The United States and Historical Contestation

Although the United States lacks formal memory laws comparable to those found in Europe, recent disputes concerning race, slavery, and national identity demonstrate similar dynamics of militant memory, which have also found expression in legislation. President Trump’s 2025 Executive Order, titled Restoring Truth and Sanity to American History, introduced a novel understanding of the concept of historical revisionism. In its established meaning, the term generally refers to attempts to distort historical truth, particularly concerning atrocities and crimes. In the Presidential Order, however, revisionism is defined differently — as a movement that

“(...) seeks to undermine the remarkable achievements of the United States by casting its founding principles and historical milestones in a negative light. Under this historical revision, our Nation’s unparalleled legacy of advancing liberty, individual rights, and human happiness is reconstructed as inherently racist, sexist, oppressive, or otherwise irredeemably flawed.”

This understanding of militant memory has already found reflection in American courtrooms. Judge Cynthia M. Rufe of the United States District Court for the Eastern District of Pennsylvania held that the federal government’s unilateral removal of slavery-related historical exhibits from the President’s House site in Philadelphia was likely unlawful and granted a preliminary injunction requiring the restoration of the displays. The City of Philadelphia argued that the National Park Service (NPS) had violated the Administrative Procedure Act (APA) by dismantling educational materials that presented “race and slavery in its historical context” and that illustrated the tension between liberty and slavery. The Court concluded that the officials’ conduct was likely arbitrary and capricious, thereby rejecting the government’s argument that it could unilaterally revise the historical narrative presented at the site. Most importantly, the Court emphasized that federal agencies cannot disregard statutory obligations or alter historical interpretation solely on the basis of the preferences of a new administration. In this instance, an independent court resisted attempts by representatives of the administration to distort — or, more precisely, to silence — history. Nevertheless, the United States is likewise experiencing ongoing pressures on judicial independence as part of deep political polarization in which questions of history and memory play an increasingly significant role.

Memory Governance and the Rule of Law

The relationship between militant memory and the rule of law is ultimately rooted in institutional integrity. The rule of law depends not only upon formal legality but also upon the existence of independent courts, free academic inquiry, and open democratic deliberation. When states monopolize historical interpretation, these institutions become vulnerable to political capture. Courts may be pressured to validate official narratives; scholars may face restrictions on research; and public discourse may narrow under the weight of ideological conformity. Importantly, the danger does not stem from remembrance itself. Democratic societies require collective memory, especially concerning atrocities and historical injustice. It is equally important that states themselves possess both the right — and perhaps even the obligation — to safeguard the right to historical truth. The problem arises when memory becomes coercive: when the state no longer encourages remembrance but instead compels adherence to a politically sanctioned interpretation of the past. Militant memory thus reveals a paradox at the heart of democratic governance. Efforts to defend democracy and national identity through the legal regulation of memory may ultimately undermine the very constitutional principles they purport to protect.

Aleksandra Gliszczyńska-Grabias is Professor of International Human Rights Law at the Institute for Law Studies, Polish Academy of Sciences and was NYU Law School Fellow (Bekker NAWA Programme, 2026)

Suggested Citation: Aleksandra Gliszczyńska-Grabias, ‘Militant Memory and the Rule of Law’ IACL-AIDC Blog (3 September 2026) Militant Memory and the Rule of Law