Holocaust and the Law

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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...
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