Law After Auschwitz: Towards a Jurisprudence of the Holocaust.

Vol. 15 No.6 (June 2005), pp.581-586

LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE OF THE HOLOCAUST, by David Fraser. Durham: Carolina Academic Press, 2005. 464pp. Cloth. $48.00. ISBN: 0-89089-243-1.

Reviewed by Thérèse O’Donnell, Law School, Strathclyde University. Email: therese.odonnell@strath.ac.uk

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 our responsibilities when faced with basic questions of right and wrong (p.21). Perhaps the non-drawing of legal lessons from the Holocaust is not due to its status as non-law but a conscious refusal to draw from a perceived poisoned well in pursuit of “jurisprudential self-assurance and a guiltless juridical conscience” (p.12). Nazi legality can then be written out of Western juridical history (p.25) and healthy legal normality re-established.

Where are justice and ethics for lawyers? Is the Holocaust absent from the law school curriculum because it is seen as “not law”? While the Holocaust is more likely to be incorporated into a law and social theory class (using Hannah Arendt), such consideration reaches only a minority of postgraduate law students. [*582] For undergraduates, the Holocaust remains fixed in the 1950s Hart/Fuller debate, while students are delicately maneuvered through the various schools of thought, passing by modernism and realism on the way to post-modernism. This book reinforces the importance of law-makers’ and decision enforcers’ identities as ethical actors. To this end the ideas contained within Fraser’s book may be usefully analysed in professional legal ethics courses or in general philosophy courses investigating what happens when key agents of power are engaged in destructive courses of action. Further, it points to the need for ethics to be more widely and fundamentally embedded into a lawyer’s general legal education rather than being perceived as a philosophical, erudite add-on. This work might also provide equally useful food for thought for medics (particularly given the focus of the concluding chapter on dubious medical practices which continued in Allied countries long after the war’s end), or bureaucrats involved in the administration of law, given their potential as desk-killers.

Although earlier parts of the book consider the role of ordinary German lawyers, policemen and judges, and although he cites Goldhagen’s HITLER’S WILLING EXECUTIONERS, Fraser does not find the Holocaust to be a uniquely German phenomenon, identifying (by drawing on the work of Weisberg 1996) a similar legal construction and accommodation of exclusion in Vichy France (pp.157, 164). However, Fraser does indicate obvious desires to construct the Holocaust as a German problem by the operation of US and Canadian immigration law, where law exercised a prophylactic function, denying entry to those who lied about Nazi pasts. It operated as the “civil equivalent of excommunication” and kept the Holocaust itself as a “foreign problem.” Thus, the “Holocaust is not an American legal problem. Lying about it to come to the United States is an American legal problem” (p.235).

It is unclear what will cause most controversy from Fraser’s book – the idea that a law without any ethical bearing can properly be considered “law,” or that laws permitting mass annihilation are like any other laws. The controversies surrounding any potential for rendering the Holocaust “mundane” are of wider interest and have already been touched upon by Alain Finkielkraut (1992, at 70), in the context of televised proceedings, and despite Fraser’s reassurances, to say “It is the very normality of the Holocaust and of the legal basis of the Holocaust which challenges us” (p.12) will no doubt provoke widespread reaction.

Fraser also keeps the reader informed about what he is not saying and what should not be implied. For example, denoting Nazi law as “law” does not render it “good”—“Nazism was and is evil” (p.7). Further, a theory of continuity between Nazi law and legal practices/traditions of Weimar and of other Western democracies “does not mean nor does it suggest, Western democracies could not or can not be, distinguished from Nazi Germany. Nor does it mean that the Holocaust happened or could have happened in the United States or Great Britain” (p.84). Finally, “I am not making the point that America and Nazi Germany in 1939 were the same. . . Rather, I am simply pointing out that articles in the academic [*583] mainstream of American legal education easily convey the impression that Nazi law in the 1930s, with its anti-Semitism and policy of racial biology, was not considered to be completely excludable from that mainstream of American legal thought” (p.96). While this may read as lawyerly defensive writing, it is probably wise for Fraser to enter these caveats, given the need to make clear the blue water between his own position and that of Holocaust apologists and deniers. Fraser does not seek to relativise the Holocaust as deniers do, and has indeed written on Holocaust denial and the “scholarship” of hate in FACES OF HATE (1997).

Fraser’s book is organised into eleven chapters which together analyse the period before WWII, Auschwitz, immediate post-WWII, and more recent prosecutions of war criminals. Fraser devotes considerable attention to the post-war approaches taken in the United States (identifying the Holocaust as not American), France (involving complex analyses of the purge and statutes of limitations), Britain (where he identifies clear anti-Semitic sentiments expressed prior to passage of the 1991 War Crimes Act, (pp.281-286)), Canada (with its tussles with ordinary criminal law and immigration law), and Australia (where the issue of multiculturalism comes to the fore). Each chapter acts as a case-study to support Fraser’s central thesis that pre-Auschwitz law had to be understood as non-law for post-Auschwitz lawyers to be able to judge it. Fraser writes in an engaging style and keeps the reader with him throughout the book, no mean feat given the morass of material managed and the uncomfortable ideas engaged.

Fraser’s structuring of the book does much to support his thesis of a continuum between the legal structure which supported the Holocaust and the procedures, tools and techniques deployed for and by lawyers today. Reiterating the relevant 1930s Nazi law and its consequences is useful in rendering the reader simultaneously familiar with and distanced from the material. However, Fraser then steps back and considers how such law was observed by the non-Nazi world in the 1930s, before the consequences took their full toll. This jolts the reader back to the law of the pre-Auschwitz world and the wider international context. Fraser considers that what explains the external understandings and constructions of the Nazi legal apparatus is that it was considered law. Fraser identifies three key points: that eugenic discourse and legislative practice were on the agenda of Western industrialised countries in the early part of the century; that they were on a “legal” agenda of such societies must cause questioning of the “illegality” of a central part of Nazi law; and that it is important not to view such debates with the benefit of hindsight through the prism of the Holocaust (p.108). Fraser’s previous work of a similar nature has been cautioned for its readiness to suggest morally suspect complicity, since legal trends in areas like abortion and euthanasia are socially constructed ideas meaning different things in different societies (Koskenniemi 2004, p.845). Nevertheless this is a context worth investigating, particularly when Fraser considers whether Nazi law was rendered not law once it became the product of an enemy, and thus a discontinuity thesis simply became part of a propaganda campaign (pp.79, 103). [*584] To then move to Nuremberg as a point of rupture is particularly interesting and also crucial to Fraser’s thesis, because it is those very outsiders who later appear to offer themselves as instruments of justice and identifiers of non-law at Nuremberg.

For Fraser, the Nuremberg International Military Tribunal (IMT) simply represents epistemological and ontological maneuvers to invent the notion of the criminal state (p.82) and to legitimise the modern civilised rule of law. This ideological goal was not unacceptable, nor the trials unjustifiable; however, for Fraser, Nazi law was never “not law,” but rather “bad law” (p.122). It has increasingly been articulated that the Holocaust played a relatively small role at the IMT (Bass 2000, p.74). Nevertheless, Fraser considers that the Nazis were convicted at Nuremberg for their roles in the Holocaust. He focuses particularly upon the case of Julius Streicher (the well-known anti-Semitic propagandist) whom Fraser believes was convicted and executed for who he was rather than what he did, given the questionable interpretation by the IMT of its own Charter. Fraser makes an interesting point that the idea of malign persuasion served to exculpate the German people who had been infected by Streicher’s form of hatred (p.135).

Contemporary critics claimed Nuremberg as a starry-eyed American program, and American support of Nuremberg was explicable since it embodied American idealism “through submitting the fate of the Nazis to reason and law rather than the arbitrary dictates of power” (Bosch 1970, p.233). Fraser agrees that Nazi law was demonised, criminalised and defeated by the enforcement of real, American law. This characterisation of un-Americanism when applied to the Holocaust and Holocaust perpetrators was reinforced by US denaturalisation and deportation proceedings. Yet law seems again incoherent and focused on the creation of an “other,” given the usually robust American defence of free speech via the First Amendment. Fraser provocatively concludes that “Nazis are not wanted unless they are American Nazis” (p.251).

Many of the French post-war trials for crimes against humanity seem to represent a fight between the continuity/discontinuity schools of thought. In Barbie’s trial his lawyer sought to parallel Nazi brutalities with those perpetrated by France in its colonies. (Fraser even goes so far as to suggest that Papon’s trial, the last (and only) trial of Vichy, could become the first trial of Algeria (p.212).) In Touvier’s trial a strict Gaullist interpretation could not render him guilty of crimes against humanity since Vichy was never a State. Papon uncomfortably embodied the seamlessness of French society, from Vichy to Paris Police Chief in the 1960s and later Cabinet minister, making the complete disjuncture between troubling periods of French history difficult to sustain. Indeed, even though the French Government accepted liability for Papon’s actions in a subsequent civil suit, it did so on the basis of the fault of its agents, thus rejecting any continuity thesis. Fraser believes the “fault” was that of Vichy bureaucrats to follow the law, concluding that the jurisprudence of the Holocaust in France is, “like the jurisprudence of the Holocaust [*585] elsewhere, an often-futile examination of law’s self-delusion” (p.213).

Can Holocaust-perpetrator trials have a pedagogical function? Despite being a significant consideration in the French cases and the Israeli proceedings against John Demjanjuk, Fraser is doubtful. While acknowledging that testimony can establish, in dramatic, personal and collective terms, the history and phenomenology of the Holocaust and its existential reality for a particular polity, he suspects that juxtaposing history and legal principle often leads to a diminution of both or the creation of a barrier between them. In Demjanjuk, Israeli law and understandings of the Holocaust emerged as separate and distinct discursive and ideological practices. In the context of the UK War Crimes Act of 1991 and the slightly faltering proceedings taken thereunder, it might have been interesting for Fraser to further consider how this legislation contributed to the establishment of Holocaust Remembrance Day in 2001 – an event aimed at constructing UK collective memory of the Holocaust. Indeed, Fraser interestingly sets Anthony Sawoniuk’s conviction against the media background of the Augusto Pinochet case and the Kosovo crisis (pp.296-297).

In the Canadian FINTA case, Finta successfully had his acquittal reaffirmed, which in turn reinforced the strength of the rule of law. However by reasserting that crimes against humanity involved the pursuit of particular policies by “cruel and terrible actions,” the court simultaneously reinforces the uniqueness of the Holocaust. Arguably this is a self-defeating process in creating a “special” category of crime and criminal, to which ordinary rules do not apply, a contradiction for the rule of law. For Fraser, this merely demonstrates the inherent flexibility of rule of law reasoning and rhetoric and the system’s ability to escape its own internal contradictions (pp.327-328). Law paid respect to itself but did not necessarily afford justice to the victims of the Holocaust (p.336).

Fraser has certainly undertaken quite a task in his survey and analysis of an enormously diverse range of materials. One issue which might have been considered a little further is to what extent de-nazification proceedings informed his work. Consideration of post-war interviews with lawyers or judges may have revealed their understanding of Nazi law as legal/not-legal. Perhaps this query is answered by the fact that many returned to the legal profession and continued to do their jobs as usual, not being required to do anything else.

Fraser occasionally overstates his points. For example, in analysing recent medical practices, Fraser asserts that “Post-Nuremberg international treaties, human rights consciousness, genocide conventions do nothing” (p.421). Nevertheless, a thought-provoking work, it will be useful reading for scholars from a variety of disciplines. The questions posited return perennially in differing contexts – are there legal black-holes (e.g Guantanamo Bay)? To whom do nationals of a State owe their primary allegiance (e.g affair de foulards)? Can immigration controls viably protect a State’s body politic? Legal theorists, sociologists, political scientists, and those interested in construction of national consciousness or the deployment of rhetoric and semiotics to [*586] elide the line between law and politics, will find something of interest. Law’s place in the fascist’s toolbox is an eternal conundrum, and the notion of a continuum between the Nazi regime and today’s regulatory system of power is particularly troubling.

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.

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