Holocaust and the Law
Throughout the Nazi period, German lawyers continued to act as lawyers . . . Judges judged, even while Auschwitz spewed forth its smoke and ash. The rhetoric and ideology of the rule of law and the criminal Nazi state do not allow for such complications. The [sic] is the lie of law after Nuremberg, just as it is the lie of law after Auschwitz. Law continued while six million died. (p.145)
David Fraser’s thesis, in LAW AFTER AUSCHWITZ, is that there is little to distinguish between our fundamental understandings and practices of law and those of German lawyers and judges between 1933 and 1945. He aims to refocus jurisprudential efforts in order to confront lawyers’ collective, institutional and professional participation in the Holocaust. Rather than seeing the Holocaust as an extraordinary moment where SS madness dominated, by surveying the legal establishment’s accommodation and application of discriminatory laws, Fraser sees the Holocaust as “the culmination of the acts of ordinary people in the ordinary course of events within ordinary governmental and legal structures”(p.5), using techniques no different to today’s. For him, Auschwitz was “law-ful/full,” and rather than the extraordinariness of the Holocaust making it difficult to be judged in a court room, its ordinariness – its ordinary lawfulness – causes difficulties for law.
Fraser maintains that he is not suggesting that Nazism was inevitable in modernity, that law is inherently evil or that we are all Nazis; but rather, if Nazi law is law, then it raises questions about our capacity to combat good and evil. The real question is what we should, can and must do when confronted with legalised evil (p.42). After all, Bernhard Loessner (Jewish expert in the German Ministry of the Interior) sought to be a good lawyer. The consequences of his diligent drafting were largely irrelevant to his professional self-understanding (p.37). To simply declare Nazi law not to be law may merely allow avoidance of
David Fraser’s thesis, in LAW AFTER AUSCHWITZ, is that there is little to distinguish between our fundamental understandings and practices of law and those of German lawyers and judges between 1933 and 1945. He aims to refocus jurisprudential efforts in order to confront lawyers’ collective, institutional and professional participation in the Holocaust. Rather than seeing the Holocaust as an extraordinary moment where SS madness dominated, by surveying the legal establishment’s accommodation and application of discriminatory laws, Fraser sees the Holocaust as “the culmination of the acts of ordinary people in the ordinary course of events within ordinary governmental and legal structures”(p.5), using techniques no different to today’s. For him, Auschwitz was “law-ful/full,” and rather than the extraordinariness of the Holocaust making it difficult to be judged in a court room, its ordinariness – its ordinary lawfulness – causes difficulties for law.
Fraser maintains that he is not suggesting that Nazism was inevitable in modernity, that law is inherently evil or that we are all Nazis; but rather, if Nazi law is law, then it raises questions about our capacity to combat good and evil. The real question is what we should, can and must do when confronted with legalised evil (p.42). After all, Bernhard Loessner (Jewish expert in the German Ministry of the Interior) sought to be a good lawyer. The consequences of his diligent drafting were largely irrelevant to his professional self-understanding (p.37). To simply declare Nazi law not to be law may merely allow avoidance of
References: Bass, Gary. 2000. STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS. Princeton: Princeton University Press. Bosch, William 1970. JUDGMENT ON NUREMBERG: AMERICAN ATTITUDES TOWARD THE MAJOR GERMAN WAR-CRIME TRIALS. Chapel Hill: University of North Carolina Press. Cunneen, Chris, David Fraser and Stephen Tomsen (eds). 1997. FACES OF HATE: HATE CRIME IN AUSTRALIA. Annandale, NSW: Federation Press. Finkielkraut, Alain. 1992. REMEMBERING IN VAIN: THE KLAUS BARBIE TRIAL AND CRIMES AGAINST HUMANITY. (Roxanne Lapidus and Sima Godfrey, trans.). New York, Oxford: Columbia University Press. Goldhagen, Daniel Jonah. 1996. HITLER’S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST. New York: Knopf. Koskenniemi, Martti. 2004. “‘By Their Acts You Shall Know Them . . .’ (And Not by Their Legal Theories)” 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 839-851. Weisberg, Richard H. 1996. VICHY LAW AND THE HOLOCAUST IN FRANCE. Amsterdam: Harwood Academic Publishers. CASE REFERENCE: R. v. FINTA [1994] 1 S.C.R. 701.