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VU DU DROIT - The greatness and misery of the “Gayssot Law,” part one - Le 29.10.2025

The greatness and misery of the “Gayssot Law,” part one

Judicial truth and historical truth do not mix well

Regis de Castelnau

oct. 29

LIRE DANS L'APP

Introduction

The implementation by Nazi Germany of the “Final Solution to the Jewish Question” was, quite naturally, a unique event. The industrial-scale destruction of a population identified as a “race” on the basis of absurd criteria is an unprecedented event. Throughout history, the West has never been lacking in genocide, massacre and extermination. But this time it was the implementation of a mass massacre based on perfectly rational decisions taken by the state of one of the most advanced countries in European civilisation. It was accepted and even supported by a people whom historians have now established knew everything. The uniqueness of the Shoah, or Holocaust as it is now called, is striking when compared to other massacres that took place during the Second World War, which was started by Germany and joined by Japan. Initially one event among many, it has become the central element in the historiography of the conflict. There are several reasons for this, but one of them is the way in which the European guilt complex has been dealt with, the central aspect of which is support for the Zionist project to establish a Jewish state in Palestine. This is obviously combined with the use of the “Holocaust” as a means of securing support for the State of Israel. The latter’s headlong rush since 7 October 2023 has probably reduced this capital to very little. But that is another matter.

In the 1970s, an intellectual movement developed with fairly obvious political intentions to question the reality of the implementation of the “Final Solution”. These political intentions, with obvious anti-Semitic aims, sought to mitigate the responsibility of Nazism and its supporters in the catastrophe. This was a detestable and perverse approach, which unfortunately found resonance in part of public opinion. It was in these circumstances that, with the laudable aim of combating this endeavour to “rehabilitate” Nazism by watering down the significance of its anti-Semitism, the project was born to criminalise historical revisionism aimed at denying the reality of the Holocaust.

The author of these lines participated in the political and legal development of the project, which led to the French Parliament’s vote on the “Gayssot Law”, named after its rapporteur, the president of the Communist group in the National Assembly. It was initially a Communist bill aimed at toughening the repression of racism provided for in the previous “Pleven Law”. The debates, particularly in the Law Commission, led to the inclusion of criminal penalties for Holocaust denial.

Although we were initially militant supporters of this text, we changed our minds. The first of the memory laws, it has never reduced Holocaust denial; on the contrary, Holocaust denial has never been so prevalent. It then opened Pandora’s box of victim competition, which seriously undermines freedom of expression. Finally, it subjected historical research to absurd and deleterious judicial pressure.

I) Holocaust denial and the loss of legitimacy of scholarly authority.

Historical truth does not always get good press, nor do legal and judicial truths. These facts can be seen as markers of a triple crisis: a crisis of history, a crisis of justice, but also a political crisis. Analysis of the crisis of history is rich in lessons for understanding certain dimensions of the crisis of justice, as the same causes produce the same effects. History is a narrative, but it is not just a narrative: it is a ‘true narrative’, writes Paul Veyne, and that, of course, changes everything. History and justice both aim at the true narrative. The development here is distinguished by the scope of its normative content: it itself defines the contours of the truth it seeks, and conditions the form of this search, the development of the true narrative: legal and judicial truth, that which is admissible in terms of the application of the rules of law.

However, the space occupied by historians is increasingly permeable to legal categories such as the irrefutable and the definitive, which in law derive from the authority of res judicata. In the 1970s, the far right, with its metapolitical pretensions, engaged in a veritable war against a historical truth: the destruction of the Jews of Europe. At a time when so-called revisionist or negationist theories are becoming more widespread and popular than ever before, it is worth remembering that the “first” Faurisson readily used the codes and language of the history of mentalities. Faurisson claimed to study the gas chambers, not as irrefutable facts, but as a myth that had circulated among the masses of deportees. And he did so in the name of a method he called the “hypercritical method”. This “hypercritical method”, as its name suggests, posits that any fact considered to be accepted by the community of historians can and must be questioned, even by non-historians.

Remarkably, none of the many Holocaust deniers are historians: Faurisson himself was a literary scholar whose thesis on Rimbaud was already revisionist and denied the revolutionary nature of the author of “Le Bateau ivre” in literature. The “method” then employed by Dieudonné-Soral’s future mentor consisted of removing everything contextual from the study of the work; Rimbaud’s “Voyelles” is thus reduced to a vaguely pornographic nursery rhyme, and Lautréamont’s work to schoolboy pranks. Although obviously contested by specialists, Faurisson’s intervention was nonetheless accepted in the Republic of Letters: in his heyday, Faurisson was published by Gallimard and enjoyed a certain recognition among conservative literary circles.

While the literary sphere accommodates this revisionism, everything changes when the supposedly hypercritical “method” enters the field of history: the struggles over definition in the field of literature concern only those involved in literature. In contrast, power is the implicit (and sometimes explicit) issue, the hidden God, as Goldmann would say, of historical narrative.

This is particularly true in France, where we are familiar with the stakes involved in writing the national narrative. The negationism of Faurisson, Notin and Co. has opened up a historical and political crisis, which we thought could be resolved through legal intervention. The legislator was thus called upon to make the norm, and in this case the repressive norm, the guarantor of a verified historical truth: the existence of the gas chambers and the irrefutable reality of the genocide.

Far from dispelling the “black flights of blasphemy” of Holocaust denial, this legal monument has, as we well know, reinforced conspiracy theories: in a further insult to the memory of the victims of the camps , the “Eichmanns of paper”, as Pierre Vidal-Naquet called them, now adorn themselves with the title of “Resistance fighters”, according to the common perception conveyed by the new media. Yet these people, who are nothing more than “murderers of memory”, claim to be the ones who are being silenced.

But it would be incomplete to limit our reflection on this organised incursion of legal truth into the realm of historical truth to its perverse effects. We must also, and above all, consider its causes.

To put it bluntly, if the law is used as a policeman in the field of history, it is because within that field itself, scholarly authority no longer has the legitimacy necessary to impose discernment, distinction and the necessary discrimination between what is scientific and therefore constitutes a true narrative, and what is not. Deviation or structural weakening? Unfortunately, both. On the one hand, the weakening of history as a true narrative is largely attributable to confusion that does not stem from social media, but from an intellectual reaction. We remember the arrows rightly fired by Pierre Vidal-Naquet, him again, against the gross historical errors contained in Bernard-Henry Lévy’s book, “Le Testament de Dieu” (God’s Testament). For the media “philosopher”, history is nothing more than a narrative that has been boiled down to historicity, which no longer serves as a true account but exists only to support a discourse of power — in this case, a return to the symbolic order endangered by the expression of the desire for liberation that marked the 1960s. The moral of the aforementioned Lévy affair contained all the elements of the crisis of contemporary historical truth: Vidal-Naquet may have shouted himself hoarse and pointed out “errors unworthy of a high school graduate”, but he was already preaching in the desert: in fact, the arbiter of the Lévy-Naquet dispute was no longer scholarly opinion, but public opinion, that is to say, those who shape it, namely the media. Within which the man in the low-cut shirt had all the necessary locks at his disposal.

And this loss of legitimacy of scholarly opinion naturally led to the search for new tools to combat discourses which, under the pretext of seeking historical truth, were in fact directly political. First, of course, there was the far right, culturally rooted in Pétainism, collaboration and the anti-Semitism that was its corollary. Then, curiously enough, there was the more recent discourse of the far left, fortunately very much in the minority, which sees the “Shoah” as nothing more than a tool used by the State of Israel to oppress the Palestinians.

We must briefly return to the origins of the Gayssot Act. In 1987, during the first cohabitation, the Communist group then chaired by Jean-Claude Gayssot tabled a bill aimed at toughening the very first anti-racism criminal law promulgated in 1972. This text, as the Communist parliamentarians were well aware, had absolutely no chance of being included on the agenda of the National Assembly. Everything changed with the return of a left-wing parliamentary majority in 1988. The historian Henry Rousso had just coined the term “negationism” and, with controversy raging, the text was taken out of the closet. It was an amendment by the Law Commission that introduced criminal penalties for publicly denying the existence of the Jewish genocide and the gas chambers. As I have already said, I was personally very much in favour of this text, which I considered to be a tool for political struggle. At the time, I did not realise the double danger it posed. Firstly, it undermines freedom of expression, whatever the reasons, which is never a good thing and always sets a precedent. As demonstrated by the ridiculous proliferation of memory laws, every community and every cause now wants its own, with parliamentarians who are un , demagogic and legally uneducated, ready to vote for anything. Then, to make “truths” (historical and judicial) coexist and even merge, which not only have nothing to do with each other, but are also completely antagonistic in the way they are constructed.

Nearly 30 years later, the results are profoundly negative, as this text has done nothing to reduce anti-Semitism or Holocaust denial; one could almost say the opposite is true. Worse still, the fact of having set historical truth in stone in the law, of having prohibited any doubt about it, has fuelled scepticism and, to make matters worse, has given rise to suspicions of a hidden power of Judaism.

I said at the outset that “History and Justice both aim at the true narrative”. But these truths, which are arrived at by completely different methods, once established, have statuses that are completely unrelated. Judicial truth, obtained through meticulous procedure, has definitive force, that of “res judicata”, from which society draws all the immediate consequences. The fate of historical truth is to be constantly questioned, clarified, even superseded.

II) The development of judicial truth

Since ancient times, criminal justice has been the means by which the sovereign exercised legitimate violence and power over bodies.

We will not revisit here the history of the establishment of criminal justice in modern societies based on the principles of Roman law, which emerged from the mechanisms of private justice resulting from the great invasions and still present in medieval societies. Let us consider the insights of Rudolf von Jhering, a German jurist who founded the modern sociological and historical school of law at the end of the 19th century. According to Jhering, law is not an end in itself, but a means to an end, which is the maintenance, preservation and development of society. He emphasises the coercive nature that is essential to the existence of law, saying that a rule of law without coercion “is a fire that does not burn, a torch that does not give light“. Insofar as the state possessed enormous power over individuals, both in principle and because of its power, he defended the formalism present in the organisation and functioning of the justice system. The conduct of legal proceedings is based on a principle of mistrust of the judge. The judge is a human being with weaknesses. It is therefore collegiality, the double degree of jurisdiction, and measures to prevent any conflicts of interest that will make it possible to compensate for this defect. As a protector of the rights of litigants, Jhering considered this formalism to be an essential principle. “The sworn enemy of arbitrariness, form is the twin sister of freedom,” was his famous saying. It is this form that enshrines the principles that allow for adversarial proceedings. In order to ensure that all points of view can be freely expressed, the judge is bound by strict rules, the non-observance of which would deprive the decision of all legitimacy.

Let us examine three of these essential imperatives to see how they are closely related to the notion of secrecy and allow for falsehood. This reveals a paradox that expresses the distance between the notions of judicial truth and historical truth. In order to arrive at a legitimate judicial truth, which is necessarily relative given its consequences, secrecy is indispensable.

- The secrecy of deliberations.

This is the guarantee of the judge’s independence, the basis of his impartiality, which must not be called into question.

The status of the judiciary as set out in Order 58-1270 of 27 December 1958 stipulates in Article 6 that judges of the judicial order shall take the following oath: “I swear to perform my duties well and faithfully, to keep the deliberations strictly confidential and to conduct myself in all respects as a dignified and loyal judge.” “ This secrecy of deliberations is also included in the oath taken by members of the Constitutional Council and consular judges

In civil matters, the principle of secrecy of deliberations is expressly laid down in Article 448 of the Code of Civil Procedure: “The deliberations of judges are secret.” Concerning administrative judges Article L 8 of the Code of Administrative Justice is succinct: “The deliberations of judges are secret. Finally, in matters of jury trials for criminal cases, jurors must, under the terms of Article 304 of the Code of Criminal Procedure, swear to keep the deliberations secret, even after the termination of their duties. Article 358 of the Code of Criminal Procedure further specifies that after each round of voting, the ballots are burned.

Beyond the statutory guarantees that help to ensure the independence of judges, and in particular the role assigned to the High Council of the Judiciary with regard to their appointment, discipline and irremovability, the secrecy of deliberations ensures that judges are not exposed to pressure or reprisals from litigants or defendants. It also aims to ensure that judges feel completely free to form their opinions without fear or resentment, based solely on the circumstances of the case to which they must apply the rule of law. The secrecy of deliberations also protects judges from any sanctions for decisions that some may consider questionable, whether rightly or wrongly. Only legal remedies allow court decisions to be challenged. This secrecy of deliberations is closely linked to the idea of freedom. It is what makes collegiality a distinct entity from the magistrates who compose it. It is what guarantees their independence, which is fundamental to impartiality. Unfortunately, this idea often takes a back seat to the mantra of independence. This explains why the incredible scandal of the “wall of idiots” provoked little reaction and, in any case, no disciplinary proceedings.

- The secrecy of the investigation:

A tool for protecting the presumption of innocence and equality of arms, the principle of secrecy of the investigation is an old one. Abolished after the Revolution, but reinstated by the Code of Criminal Investigation of 1808: the investigation phase is secret, and the trial phase is public.

This secrecy is now governed by Article 11 of the Code of Criminal Procedure, which states that “the proceedings during the investigation and inquiry are secret”. This applies to those involved in the proceedings. They are bound by professional secrecy, the violation of which is punishable by law. Curiously, only those involved in the investigation (magistrates, clerks, police officers, experts) are required to respect this secrecy: neither the defendant, nor the victim, nor even journalists are bound by it. This last exemption unfortunately often makes it an open secret, as it is clear that the secrecy of the investigation contradicts the requirement for transparency and its alibi, freedom of information. However, the aim is to protect the presumption of innocence and reputations in a media- society. Many people, generally those who trade in “revelations”, believe that this concept is obsolete and are calling for its abolition. The United Kingdom, however, has adopted the opposite solution, considering that the excessive media coverage of criminal cases could undermine the right to a fair trial. But we know that the British love their freedoms and do not do things like everyone else.

- Lawyer-client privilege

What is lawyer-client privilege? Why have legal principles long required that communications between a solicitor and their client be kept strictly confidential? We have pointed out that the modern state assumes the power to exercise legitimate violence. This prerogative infringes on the freedom and integrity of the individual. The social acceptability of the decision taken requires that the defendant be assisted by someone who will help to restore some balance between the Leviathan and the individual citizen.

In France, since the Revolution, lawyers have not been very popular, without necessarily going as far as Couthon, who said: “A lawyer? The guilty have no right to one, the innocent have no need of one.” In a country with a strong tradition of state control, order is often preferred to justice. A guilty person at liberty is an injustice; an innocent person in prison is disorder. It should be the other way around. We do not have the worst justice system in the world, but lawyers are often perceived as accomplices.

Why professional secrecy? First of all, it is imposed on the lawyer, whom no one, not even the client, can override, and serves two purposes. It establishes the trust of those who rely on him to defend them. They will be certain that nothing they say to their counsel can be used against them, and this trust is essential to the defence mission. Secondly, confidentiality is also binding on the prosecuting authorities and judges. The establishment of “judicial truth” must be done fairly. Otherwise, the exercise of legitimate violence becomes illegitimate.

- Is there a right to the truth?

It is possible to answer in the affirmative, because members of a human community must have reliable information about those with whom they cooperate. When these communities comprise millions of individuals, it is necessary to identify the level of information required for the cohesion of the whole.

On the other hand, the level of secrecy and deception that is its corollary protects the freedom that a society owes to its members. It is this contradiction that lies at the heart of the legal system. This is why the balance between these two imperatives is so important. Truth and transparency are also a market, and public opinion, driven by the media, is greedy. Unfortunately, we see that the compromises made today under pressure from the demand for truth, disguised as the ‘right to information’, are regularly made at the expense of freedom.

This is because the legal and judicial spheres have been completely integrated into the political sphere. Under pressure from public opinion, i.e. the media, the justice system no longer pursues its own objectives. Namely, let us repeat, through strictly standardised procedures, to arbitrate between conflicting interests through decisions that have the authority of res judicata. To reveal a judicial truth that will have its own value, since it will lead to an enforceable force that is binding on all. This is no longer the case today. The justice system is now expected to “help people grieve, recognise victims“, get rid of political opponents, provide catharsis, strike at scapegoats, wage war on terrorism, arbitrate social debates, etc. These are objectives that are foreign to the justice system and that it can only achieve by violating its own legality and principles.

This detour through some aspects of the procedures that lead to a “judicial truth” benefiting from the “authority of res judicata“ allows us to see the relative nature of this truth. Which can sometimes bear only a distant relationship to factual truth. This is why importing the notion of “judicial truth” into a factual historical debate is a dead end. This new instrumentalisation of justice, which I approved of at the time, is negative because we can see that justice, too, is now suffering from the disease of delegitimisation. Unfortunately, conspiracy theories do not only concern history. Justice is now bearing the brunt of them.

Therefore, seeking to reinforce historical truth by linking it to judicial truth will simply weaken both. The judicial authority of the decisions taken at Nuremberg in 1946 has been fully expressed. The guilty parties were hanged, Rudolf Hess died in Spandau Prison, and the legal and jurisprudential principles established on that occasion were the subject of doctrinal work and incorporated into positive law where necessary. However, the trial itself has become a historical object, the study of which reveals its limitations, possibly its errors, and in any case, as Annette Wievorka has clearly demonstrated in her book, something that was rather improvised under the pressure of circumstances. Take the example of Albert Speer, who managed to slip through the net at Nuremberg, avoiding the hanging he deserved in view of the fate that befell his co-defendants. Once out of prison, he refined the false image of himself as a minor cog in the machine who had merely obeyed orders. He benefited from the narrative established during the Cold War, which held Nazism solely responsible for the catastrophe and exonerated the German people of any responsibility. Recent historical research has shattered this narrative, demonstrating not only Albert Speer’s direct responsibility for the atrocities, but also the fact that the Germans, who knew everything, nevertheless followed Hitler to the end. This does not mean that we are going to redo Nuremberg; that would make no sense today. The trial had its effect and has now become a historical artefact.

Unfortunately, this “res judicata” attached to the judgement of¹October 1946, which was absolutely essential at the time, is being invoked 80 years later to freeze a historical truth when it does not have the means to do so.

III) Is there a true historical “narrative”?

The resurgence of the idea that history constitutes a narrative, a conception that has in fact been consubstantial with history itself since Herodotus and Thucydides, has been contaminated, so to speak, by the category, derived from a strong flow of ideas from the United States of America, centred on the concept of narrative. This concept has a relativist scope, whether or not those who use it are aware of it. Little by little, the idea that historical truth is automatically disqualified because it is ultimately relative has become established in common sense, if not in scientific common sense. and it is probably no coincidence that this conception has emerged in parallel with models of social organisation that advocate, within the same society or at least within the same state reduced to its simplest expression, the recognition of various cultural, religious and ethnic continuums.

But let us leave aside the sophistry of relativism and return to historical narrative and its relationship with truth. Taking refuge behind three great thinkers

“In truth, the Chinese proverb is wise when it says: men resemble their times more than their fathers,” said the great Marc Bloch. He added that historical facts were essentially psychological facts. (Marc Bloch, Apologie pour l’histoire, Armand Colin.) So if we understand him correctly, the uses of the past, claiming to clarify it, are merely political, and memory is a mask for ideology? This seems to be confirmed by Michel Foucault, who argues that the past always holds surprises for us, since “we show people not what they have been, but what they must remember they have been.“2. (Michel Foucault. Dits et écrits 1954 – 1988. Gallimard)

More recently, Quentin Skinner hammered the final nail in the coffin of immutable “historical truth”: “The most we can reasonably hope for in the humanities, or even in the sciences, is that what we say appears rationally acceptable to those who are in the best position to judge it. That is certainly all I mean to assert, and it is worth remembering that, until now, the universal fate of historical and even scientific explanations has been to be superseded. It is on this point that I wish to dwell: factuality should be distinguished from truth.” (Quentin Skinner. Truth and the Historian. 2012. Audiography Collection. EHESS)

So here we are with two tools that are difficult to use in the political fight against anti-Semitic denialism. First, a “judicial truth” that is relative due to the conditions under which it was developed, dated in a particular context, which has produced all the effects attached to the authority of res judicata. The case is closed, the file has been archived and has therefore become a historical object as debatable and revisable as any other.

Secondly, a “historical truth” which, according to the greatest historians, is relative and destined to be superseded.

The Gayssot Act, a law regulating and restricting freedom of expression and which must therefore be particularly cautious, chose to merge two completely unrelated concepts. Much debated by historians as the first memorial law that led to all the others, it has had a rather chaotic judicial life, recently resulting in a Priority Preliminary Ruling on Constitutionality. Has the response given by the Constitutional Council, which clearly tried to salvage what it could, opened a new Pandora’s box?