Definition and Legal Classification of Memorial Days
Memorial days are specific calendar days that, through legal, religious, or societal establishment, are dedicated to public and/or collective remembrance of historical events, personalities, or themes. The legal design and significance of such days vary depending on national or regional legislation, their objectives, and the respective societal context.
Definition and Distinction
Memorial days are days established by state regulations, international agreements, or societal conventions to commemorate a historical event, a personality, or collective traumas such as war, violence, or natural disasters. Memorial days are to be distinguished from public holidays, which may be associated with binding labor law and economic consequences.
While memorial days primarily serve remembrance and raising awareness, public holidays mainly refer to religious or state holidays with labor law implications. However, depending on their design, memorial days may achieve comparable significance in specific legal areas.
Legal Foundations of Memorial Days
The codification of memorial days occurs at various levels, particularly through laws, regulations, resolutions by parliaments, or international organizations. The specific design varies from country to country, and sometimes even from state to state.
National and International Establishment
Germany
In Germany, memorial days can be introduced through laws (e.g., the Law on the Day of Remembrance for the Victims of National Socialism) or by approval of the federal and state parliaments. Examples include:
- January 27: Day of Remembrance for the Victims of National Socialism (Federal Law of January 3, 1996)
- June 17: Day of German Unity (until 1990)
- May 8: Day of Liberation from National Socialism (commemorated through resolutions and declarations)
Some memorial days have a semi-official status, such as November 9 as the day of the fall of the Berlin Wall and the Reichspogromnacht, without being considered state holidays.
International
At the international level, memorial days are often established by resolutions or declarations of international organizations, such as the United Nations. An example of this is the January 27 as International Holocaust Remembrance Day, recognized by the UN General Assembly.
Legislative Authority and Legal Effect
In federal states, the authority to establish memorial days often lies both with central state institutions and the constituent entities (states, Länder, cantons). The legal effect can range from symbolic significance (pure commemorative function) to normative consequences (obligations for public institutions, recommendations for educational work or media coverage).
Symbolic and Normative Effects
Memorial days are generally associated with a symbolic function. In certain cases, however, laws provide for concrete consequences, such as:
- Obligation of public institutions to hold commemorative events
- Regulations for flying flags at half-mast
- Integration of historical topics into educational institutions on these days
- Order of moments of silence on public broadcasting
Mandatory cessation of work, as on public holidays, does not generally apply. However, in individual cases, restrictions regarding loud events or special offerings may apply if stipulated by state regulations.
Memorial Days in the Context of Constitutional Law
Significance under the Basic Law and State Constitutions
Memorial days touch on constitutional principles, particularly with regards to the protection of human dignity, state commemoration, and the culture of remembrance. The Federal Constitutional Court has recognized, in several decisions, the importance of collective remembrance as a legitimate subject of legislative regulation.
State Neutrality and Protection of Minorities
When introducing and shaping memorial days, state neutrality and minority protection must be observed. It must be ensured that no group is discriminated against or privileged and that the selection of memorial days remains compatible with fundamental rights, notably freedom of expression and freedom of religion.
Administrative Law and Public Law Regulations
Administrative practice with regard to memorial days regularly derives from administrative regulations, decrees, or guidelines. Public law obligations may, for example, extend to state authorities, schools, public broadcasters, or municipal institutions.
Flag Regulations and Display of Flags
On important memorial days, the hoisting of the national flag at half-mast or the flagging of public buildings is legally regulated. The respective flag regulations of the federal government and the states provide detailed provisions for this.
Educational Mandate
Schools and other educational institutions are often required by state laws or decrees to address memorial days in their educational activities. This promotes historical-political education and teaches a sustainable culture of remembrance.
Civil Law and Employment Law Influences
In principle, memorial days in civil law and working life only have direct effect if expressly stipulated. Under employment law, memorial days are generally not non-working days; Section 2 (1) of the Public Holidays Act (differently structured depending on the state) concerns legally recognized public holidays, not ordinary memorial days.
However, in individual sectors, especially in the media, public service, or cultural fields, collective agreements or company regulations may exist which take special account of certain memorial days.
Criminal Law Aspects
Criminal or regulatory sanctions in relation to the disregard of memorial days are only provided for in exceptional cases. In some countries, violations of certain regulations (e.g., disregard of event bans on memorial days) may be prosecuted as administrative offenses.
Memorial Days and Copyright
Historical personalities associated with a particular memorial day may be posthumously protected by copyright law. At events, in publications, or in artistic representations related to memorial days, the rights of third parties (e.g., estate administrators, usage rights holders) must therefore be observed, as long as relevant protection periods are still in effect.
International Aspects and European Law Regulations
Memorial days may be part of international law obligations, such as through UN resolutions or EU directives concerning certain remembrance cultures and practices. European regulations may make recommendations regarding the design and maintenance of the remembrance of key historical events, but are generally not binding.
Conclusion
Memorial days play a significant role in the legal system by structuring collective remembrance of key events, personalities, or topics both legally and socially. Their specific design, legal effect, and binding nature are subject to national, federal, or international regulations, which may provide for both symbolic and actual obligations for public institutions and citizens. Knowledge of the legal foundations of memorial days contributes significantly to the classification and understanding of their importance in state and society.
Frequently Asked Questions
May memorial days be legally recognized as public holidays?
In Germany, memorial days can, in principle, be declared public holidays through legislation at federal or state level. The decision-making authority lies, depending on the area of responsibility, either with the federal legislature (e.g., for the Day of German Unity) or with the state legislatures (e.g., for Corpus Christi or Reformation Day). The inclusion of a memorial day in the relevant Public Holidays Act generally requires justification based on public interest, for example, to commemorate historical events or as an expression of cultural appreciation. Legal frameworks such as the Basic Law, in particular Article 4 (freedom of religion) and Article 140 of the Basic Law (incorporation of the Weimar church articles), must be observed, as these influence holiday regulations. European regulations should also be considered if they are relevant. Recognition as a public holiday results in employment law and regulatory consequences, such as under the Working Hours Act, the Shop Closing Act, and with regard to assembly and event law.
What legal restrictions apply to public events on memorial days?
For memorial days that are also public holidays, special restrictions apply, regulated by the respective Public Holidays Act at the state level. In many states, so-called “silent days” exist (e.g., the National Day of Mourning or Good Friday), on which public events that do not correspond to the character of remembrance or could be considered disruptive are restricted or prohibited. These restrictions particularly affect music and dance events, sporting events, public celebrations, and similar entertainments. Exceptions may require approval and are regularly subject to individual assessment by the responsible authority. Disregard of these regulations may be penalized with fines or other sanctions.
Can the observance of a memorial day with a religious character be regulated by the state?
Yes, the legislature may provide regulations regarding the observance of religiously influenced memorial days, but must take into account the constitutionally guaranteed freedom of religion (Article 4 GG) and the separation of church and state. As a rule, state requirements are limited to enabling or facilitating the population to participate in religious or ideological acts (e.g., leave from work, event bans). However, there can be no obligation to actively participate in religious acts. The principle of neutrality requires that members of other or no religious communities cannot be unreasonably impaired. In these cases, restrictions and privileges must generally be subject to a proportionality test.
What employment law consequences does the introduction of a memorial day as a public holiday have?
If a memorial day is declared a public holiday, the employment law provisions apply as with any other public holiday. According to Section 2 (1) of the Continued Remuneration Act (EFZG), employees are entitled to continued payment of wages even if work is cancelled due to a public holiday. The Working Hours Act (§ 9 ArbZG) generally prohibits employers from employing workers on public holidays from midnight to midnight, unless exceptions apply (for certain sectors according to § 10 ArbZG). In addition, the number of annual public holidays may affect collective and operational regulations, such as working time recording and remuneration. For employers and employees, new public holidays are therefore associated with practical and financial consequences.
What are the legal requirements for introducing new memorial days at federal or state level?
The introduction of new memorial days as public holidays requires a formal legislative procedure. At the federal level, a federal law is required; at state level, a state law. According to Article 70 of the Basic Law, the legislative competence generally lies with the states, except in matters that fall under the exclusive legislation of the federal government. The introduction is generally tied to a significant public or cultural interest, which is detailed in the legislative process. Furthermore, the impact on the economy, working life, and social coexistence must be considered during the legislative process. Nationwide standardization of all memorial days as public holidays is rare for reasons of competence and requires consensus in the Bundesrat as well as approval by the Bundestag.
Are the content and purpose of a memorial day subject to legal review?
Yes, the content and purpose of a memorial day can be subject to legal scrutiny, particularly regarding their compatibility with the liberal democratic order, prohibitions on discrimination, or the requirement of ideological neutrality of the state. Memorial days with political, religious, or historical relevance can be legally reviewed to ensure that they do not violate the Basic Law, especially human dignity (Art. 1 GG) or prohibitions on discrimination (Art. 3 GG). European requirements and international obligations (e.g., ECHR) must also be observed. The review generally takes place within the legislative process and, if applicable, through constitutional complaints or proceedings before the Federal Constitutional Court.
