Memory Laws and Colonial Reckoning in France and the Netherlands

The colonial empires of France and the Netherlands once spanned vast territories across Africa, Asia, and the Americas, driven mainly by economic ambition. French possessions that extended from Algeria to Vietnam and Haiti, have left a complex legacy of cultural influence, political ties, and lingering historical grievances. What remained of the colonial empire of France are its overseas departments and territories, including places like Guadeloupe, Martinique, Réunion, French Guiana, and several Pacific islands such as New Caledonia and French Polynesia, which continue to maintain political and economic ties with the French Republic. Likewise, the Dutch empire, fueled by maritime trade, in certain periods controlled outposts in Indonesia, the Caribbean, and South America, with remnants of its rule still visible in constituent countries of the Kingdom of the Netherlands in the Caribbean – Aruba, Curaçao, and Sint Maarten – as well as in the special municipalities of Bonaire, Saba, and Sint Eustatius (Caribisch Nederland), with the latter remaining a sunny fraction of the Netherlands as such. Today, both nations grapple with the legacies of these empires, facing ongoing debates over historical responsibility and appropriate framings of memory, which inevitably encompasses the dangers of mandating memory in the name of human rights.

The resurgence of anti-racist movements in the early 2020s reignited global debates about the role of states in legislating about historical memory, particularly concerning colonialism and slavery. These confrontational debates, mostly styled as “On vous accuse”, have pushed for formal recognition of historical injustices, including through radical cultural policies, based on a belief that the past injustices of the colonial world still haunt contemporary inequalities. In the Netherlands, attention has turned, amongst other aspects of that debate, to whether the country should adopt a memory law that acknowledges its colonial past, with comparisons often drawn to the French “Taubira Law” of 2001. The latter legislation in France recognises the transatlantic slave trade and slavery as crimes against humanity.

This essay explores the tensions surrounding memory laws, focusing on the contrasting approaches of France and the Netherlands. While France embraced the formal regulation of historical memory nearly two decades ago with the adoption of a law by its parliament, the Netherlands has opted for more symbolic recognition on behalf of the head of state, avoiding direct parliamentary involvement through a formal legislative process. The essay argues that, despite neither approach being capable of fully satisfying all sides in the debate on how to frame colonialism in the present, the Dutch model is notably less problematic concerning its impact on freedom of expression, adherence to the rule of law, and the fit towards a unique set-up of the Kingdom of the Netherlands.

Taubira Law and the birth of memory laws in France

The French debate on historical memory in the early 2000s led to the coining of the very term “memory laws” (lois mémorielles), which is central to this whole Verfassungsblog symposium. Such laws, designed to shape public understanding of historical events, ignited intense controversy among French historians, who were concerned about the growing role of states in shaping historical narratives. One notable example is the Taubira Law, often referred in such a way after Socialist MP and later Justice Minister Christiane Taubira. This law, emblematic of French left-wing populism, was enacted in 2001, framing recognition of the transatlantic and Indian Ocean slave trades as crimes against humanity and mandating their inclusion in school curricula. It followed earlier French memory laws such as the Gayssot Law (1990), brought by a communist deputy Jean-Claude Gayssot, which criminalised Holocaust denial, and the later Armenian Genocide Law (2001), which acknowledged the Armenian genocide. The subsequent Mekachera Law (2005), initially requiring schools to teach the “positive role” of French colonialism, was emblematic, in contrast, of the right-wing populism. Its controversial provisions were later repealed. Currently, only the Gayssot (1990) and Taubira (2001) laws remain in effect in France.

The introduction of this legislation, especially of Taubira and Mekachera laws – prescribing both positive and negative roles of colonialism in France – went not without controversy. Pierre Nora, one of France’s most distinguished historians and the author of a term central to memory studies, lieux de mémoire (sites of memory), argued that such memory laws, which he called “a distinctively French legislative sport” ([ce] sport législatif purement français), impose an anachronistic view of history by applying modern legal concepts like “crimes against humanity” to past events.

Historians like Nora warned that this stance promoted a simplistic dichotomy of historical guilt and innocence, flattening the complexity of historical processes like the slave trade – a dichotomy that, as I argue elsewhere, diverted academic thinking into reproducing the militant clichés of today’s critical legal academia. Olivier Pétré-Grenouilleau, a prominent scholar on slavery, also criticised the Taubira Law. He argued that the transatlantic slave trade, though horrific, did not qualify as genocide because its purpose was exploitation rather than extermination. This view sparked a lawsuit against him, led by activist groups, who attempted to imply the consequences by analogy with the Gayssot Law on Holocaust denialism. Although the charges were eventually dropped, this shows that the Taubira law, despite its seemingly non-punitive character, was not purely innocent, and has had a significant chilling effect on freedom of academic expression in France.

The backlash against the “left-wing” Taubira and “right-wing” Mekachera laws led to the emergence of the Liberté pour l’histoire (Freedom for History) movement, which mobilized historians – including those from other European countries – against government intervention in historical scholarship. In 2008, they issued the “Appel de Blois”, signed by well-known scholars such as Carlo Ginzburg, Eric Hobsbawm, Timothy Garton Ash, Aleida and Jan Assmann. This manifesto called for an end to what they rightly saw as state-imposed historical narratives that restricted free debate and inquiry. The group warned that memory laws risked becoming a form of censorship, turning the government into an arbiter of historical truth.

Critics of the Taubira Law also pointed out that it focused almost exclusively on the culpability of white Europeans, ignoring the broader historical context, including the central role of Arab traders in the African slave trade. This selective memory contributed to a simplistic, binary narrative that framed colonial crimes solely in terms of European guilt. Scholars mobilising against French memory laws as well as some later accounts in this socio-legal debate on free speech further highlighted how this form of moral oversimplification reduced history to a vehicle for assigning collective guilt, ignoring other actors involved in the trade. This tendency is, regrettably, prevalent among proponents of critical legal studies and so-called “third world approaches to international law” (TWAIL) today.

The Dutch mnemonic constitutionalism: let His Majesty speak

In contrast to the formal legislative approach in France, the Netherlands has opted for symbolic acts rather than enacting memory laws. In 2020, Dutch Senator Peter Nicolaï proposed to explore a possibility of adopting a memory law similar to the French Taubira Law, potentially recognising Dutch participation in slavery and the slave trade as crimes against humanity. Until now, the Dutch Parliament has not adopted such a law, which I consider a positive outcome for freedom of expression, considering the convincing alternative move undertaken recently from the Dutch leadership.

On 19 December 2022, Prime Minister Mark Rutte formally apologised for the Netherlands’ role in slavery, followed by a similar apology from the head of state, King Willem-Alexander on 1 July 2023, to mark the anniversary of slavery’s abolition in Dutch colonies. The King’s apology also acknowledged the controversial involvement of the Dutch royal family itself and even announced the commissioning of an independent study on the role of the House of Orange-Nassau in the context of colonial history. Although these apologies lack formal parliamentary endorsement, officially published and disseminated on governmental platforms, they function similarly to formal memory laws by influencing public discourse and shaping collective memory. This effect extends even to current – unlikely successful – attempts to advance reparation in courts, on the basis of these symbolic act by the head of the state.

These symbolic acts should certainly be seen as part of a the broader phenomenon of mnemonic constitutionalism, which – as I argue elsewhere – does not even necessarily imply a formal amendment of the constitution. They may be even classified as “soft” memory laws within the growing nomenclature of such legislations amongst scholars in this field, representing symbolic actions acknowledging historical injustices without imposing legally binding consequences. While lacking the formal procedural authority of the legislation, similar to other non-punitive memory laws adopted by the Parliament (such as commemorative resolutions), they significantly shape national ontological narratives and serve as official recognitions of past atrocities. Arguably, the impact of such softer forms of mnemonic constitutionalism is even stronger given the enduring nature of the monarchy in the Netherlands. The King (Queen) in the Dutch constitutional monarchy is also a symbol of national unity and continuity, embodying the nation’s identity and providing a sense of stability and historical connection, which is significant in a country known for its decentralised governance and diversity. In this respect, the monarch acts as an ontological custodian of collective memory and identity within the constitutional framework.

The potential of expanding memory laws in the post-colonial context is further complicated in the Netherlands, where the legal framework of the Kingdom of the Netherlands introduces additional challenges that might appear less obvious on the first glance. Namely, the Kingdom comprises four constitutive countries (landen): the Netherlands, Aruba, Curaçao, and Sint Maarten. The adoption of any memory law, under such settings, may require a careful and sensitive consideration of whether it applies only to the “European” Netherlands or to all the constitutive countries of the Kingdom of the Netherlands, including those in the Caribbean region, as well. Furthermore, if such a memory law were to be enacted as a rijkswet (Kingdom Act) and, thus, not exclusively by the Dutch parliament (as a standard wet), it would require the agreement of all the Kingdom’s constituent countries (as the so-called consensusrijkswet, Consensus Kingdom Act), likely complicating the legislative process and highlighting the differing perspectives on colonial history between the European and Caribbean parts of the Kingdom.

Formal memory laws in comparison with the Dutch 2022-2023 approach

While memory laws often aim to foster reconciliation by formally recognising historical injustices, the French experience shows that self-inculpatory memory laws (when a state acknowledges responsibility for past atrocities) can also provoke unintended consequences, as can self-exculpatory memory laws (when a state delegates the guilt for past atrocities to other nations). At the same time, the Dutch framing of historical memory through symbolic gestures, such as the recent apologies from the Prime Minister and especially the King, may offer a more flexible and contextually appropriate way of acknowledging the colonial past.

Formal memory laws passed by parliaments, while well-intentioned, carry significant risks, particularly regarding freedom of expression. In the Netherlands, the legal framework already includes provisions in the Dutch Criminal Code (Article 137) to address incitement to hatred, which encompasses Holocaust denial in its judicial interpretation. Recently, the Cabinet also announced an intention to prohibit Holocaust denial more explicitly. Expanding these provisions to cover the denial of colonial past through a punitive memory law could lead to unintended consequences, such as limiting academic and public discourse.

But even non-punitive memory laws can contribute to what is known as “cancel culture”, where individuals are penalised for expressing views that challenge the accepted narrative. Such laws can also create a “chilling effect”, when scholars and journalists are scared to discuss the controversial topics expressing views that might contradict the rhetoric of some formal, self-exculpatory or even self-inculpatory memory laws. In France, the Taubira Law has been criticised for contributing to this phenomenon, with scholars and public figures facing social and legal repercussions for dissenting opinions on sensitive historical topics.

Conclusion: navigating the tightrope of history

The debates over memory laws in France and the Netherlands illustrate the delicate balance between the perfectly legitimate calls for acknowledging historical injustices and protecting intellectual freedom. While the French legislative approach aimed to formally recognise the colonial crimes of the French empire, it has also sparked significant controversy and backlash from historians who argued that such laws limit free inquiry and impose a state-sanctioned version of history.

In contrast, the Netherlands has so far avoided these pitfalls, opting – most recently – for symbolic apologies from both the Prime Minister and the King rather than formal legislation. As Dutch legislators consider whether to adopt a memory law, they must navigate the tension between historical recognition and free speech. The French experience offers valuable lessons, particularly in how memory laws – initiated by both left- and rights-wing populists – can (un-)intentionally constrain this debate. Through a model of symbolic recognition, the Netherlands is currently pursuing a more balanced approach that acknowledges its colonial past, notably through the King, who embodies a form of ontological security and mnemonic constitutionalism in the country. This approach, however, maintains space for open, critical dialogue in the era when much of today’s world contends with either the forces of cancel culture and dangerous academic drift to explicit “wokeness” or the grip of overtly authoritarian – both “right”- and “left”-wing – memory laws. Such memory laws have been also part and parcel of the ideological machinery in the countries like Russia or China, along with possibly less explicitly authoritarian but nonetheless problematic and contentious memory regulations in countries like Poland.

In walking this fine line, the Netherlands seemingly realises that while laws can indeed shape historical memory, they can also inhibit it. Instead of outright copying French “sport” of legislating history, the Dutch approach offers a potentially more sustainable and nuanced framework for addressing one of the most contentious chapters in European history – an example that may be instructive for other nations grappling with the challenges posed by memory laws.