Abstract
Holocaust denial poses a challenge for the legal systems and societies of Western Europe and North America. The rise of a small, vocal minority willing to use any means necessary to claim the Nazi murder of the Jews was a hoax, or, at a minimum, a falsehood, calls for action. Anything less insults the memory of the Holocaust. Yet, to take action, to use the law to prosecute Holocaust deniers, raises the Orwellian image of the state policing the official truth. Either path—toleration or prosecution—is fraught with difficulty. The conclusion takes a final look at dilemmas that Holocaust denial poses for the legal system, shows how each of the four countries handled these dilemmas, explains why these dilemmas were largely absent in the Irving v. Lipstadt case from 2000, and closes with some general comments on the competing expectations modern societies place on the law.
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Notes
Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Oxford: Clarendon Press, 1985), 243.
My account of Irving v. Lipstadt follows D.D. Guttenplan, The Holocaust on Trial (New York: W.W. Norton & Company, 2001).
Alan Dershowitz, The VanishingAmerican Jew: In Search of Jewish Identity for the Next Century (Boston: Little, Brown and Company, 1996), 115.
Max Weber, “Bureaucracy,” in H.H. Gerth and C. Wright Millseds., From Max Weber: Essays in Sociology (Oxford University Press, 1946/1981), 215.
For example, Lawrence Friedman has distinguished between the norms of legal professionals (“internal legal culture”) and the demands the larger society places on these norms (“external legal culture”). Friedman, The Legal System: A Social Science Perspective (New York: Russell Sage, 1975), 223–24.
For an example of this claim, see Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven: Yale University Press, 2001), 114. Part of the problem is that Douglas does not take “the rules-based theory of law” seriously enough. It is one thing to point out that legal realists have “challenged both… [the] descriptive and normative adequacy” of legal rules, but quite another to show that this critique has shaped how judges and other legal professionals apply such rules in practice. At least in the Holocaust-denial context, judges and lawyers have stayed close to the formal rules of law, whatever the didactic consequences.
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© 2004 Robert A. Kahn
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Kahn, R.A. (2004). Conclusion. In: Holocaust Denial and the Law. Palgrave Macmillan, New York. https://doi.org/10.1057/9781403980502_9
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DOI: https://doi.org/10.1057/9781403980502_9
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