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Journal ArticleDOI

The Holocaust and the law: a model of ‘good history’?

L Humphrey1
02 Jan 2020-Rethinking History (Routledge)-Vol. 24, Iss: 1, pp 94-115
TL;DR: The authors evaluate the rationale of empiricist-analytical and narrative-linguistic theories of historying through its practice, and conclude that historying can be viewed as a form of narrative linguistics.
Abstract: This article aims to contribute to debates on ‘what is history’ by evaluating the rationale of ‘empiricist-analytical’ and ‘narrative-linguistic’ theories of historying through its practice...

Summary (2 min read)

History and the Law: A Methodology of ‘Good History’?

  • The trials selected were the criminal cases of Adolf Eichmann (1961) and Ernst Zündel (1985, 1988) and the civil case instigated by David Irving against Deborah Lipstadt and Penguin Books (2000).
  • Indicative were the findings by the Judges in Israel that once instigated by Hitler, and intended as early as 1939 (Vol. V, p2119), Eichmann had not only been a willing and 'principal offender' in the ‘Final Solution of the Jewish Question’ but 'amongst those who pulled the strings' (p2182).
  • It is likewise shown, that despite being framed and shaped by extra-historical remits, each trial had reconstructed empirically accountable, consistent, and, since based on established facts, 'truth-full' narratives of each subject.
  • And in so doing, although the ‘truth’ (and therefore ‘credibility’) of these narratives was adjudicated in accordance with the charges underpinning each legal case, they had reached the basic demands of both empiricist and narrativist theories of academic historying.

Judicial Historying: A Model of Empiricist or Narrativist ‘Good History’?

  • Given the persistent distinctions underpinning empiricist and narrativist theories, it is not satisfactory to merely identify that legal reconstructions relating to ‘the Holocaust’ met the basic demands of academic historying in all four trials.
  • Hitler's speech to the Reichstag, on 30 January 1939, authorised as evidence of intent prior to any killing in the Eichmann trial, was, by 2000, deemed probative of Hitler's antisemitic fervour but not as 'a programme, a blueprint to kill European Jews during the next years’ (Judgement, para.6.7).
  • The ability of the past traces to accommodate and support a variety of credible interpretations is inherent to academic historying and acknowledged by the advocates of both 'empiricist-analytical' (Evans, 1997) and 'narrative-linguistic' theories (Munslow, 2008).
  • It is suggested that although the law can produce 'good history' in accordance with prevailing 'empiricist- analytical' demands and techniques, its methods and outputs in the Eichmann, Zündel and Irving trials are most appropriately explained through the lens of the 'narrative-linguistic' genre.
  • It has been suggested that both historians and jurists reconstruct ‘the Holocaust’ through the contemporary translation of evidentiary traces into empirically accountable, ‘credible’ and ‘truth-full’ accounts/representations.

Notes

  • 1 Historiography is accepted as both the method and outputs of the history discipline.
  • Other legal genres, for example the ‘continental’ model, may have amended or altered the findings.
  • 4 The 'hostile organisations' being the 'Schutzstaffeln der NSDAP' (SS), 'Sicherheitsdienst des Reichsführers SS'.
  • Although it was Deborah Lipstadt who had been forced into court reference to the common usage of the 'Irving trial' is used throughout the article.
  • White was specifically challenged on this point and consequently amended his critique of historical realism to award evidence of the ‘Third Reich’ with a degree of stability of both form and morality missing from the traces of other past events (White, 1992; Jay, 1992).

Primary Sources

  • David John Cawdell Irving v Penguin Books Limited and Deborah E. Lipstadt.
  • Holocaust Research Institute, Royal Holloway, University of London.
  • The Trial of Adolf Eichmann: Record of Proceedings in the District Court of Jerusalem.

Secondary Sources

  • “The Idea of Philosophy of History”, Rethinking History.
  • Oxford University Press, also known as Oxford.
  • In The Historiography of the Holocaust, edited by Dan Stone, 397-419.
  • Making Law and History in the Trials of the Holocaust, also known as The Memory of Judgement.

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1
The Holocaust and the Law: A Model of ‘Good History’?
Lynne Humphrey
Department of History, Newcastle University, Newcastle-upon-Tyne, UK.
lynne.humphrey@newcastle.ac.uk
Lynne Humphrey was awarded a PhD by Royal Holloway, University of London in January
2018. This article is based on her doctoral research and reflects her interests in the theories and
politics of historical inquiry as well as its practical application in trials relating to the
Holocaust’.
8,079 words

2
The Holocaust and the Law: A Model of ‘Good History’?
Abstract
This article aims to contribute to debates on ‘what is history’ by evaluating the rationale of
‘empiricist-analytical’ and ‘narrative-linguistic’ theories of historying through its practice in
Holocaust-related trials. Mindful of a ‘consensus of critique’, that explicitly warns against
bringing historical inquiry into the courtroom, it poses two main questions: (1) can the law
produce ‘good history’ as demanded by these theories of the academic form and (2) which of
these theories are most appropriate as explanations of the history-law relationship? Focusing
on the criminal cases brought against Adolf Eichmann (1961) and Ernst Zündel (1985, 1988)
and the civil case instigated by David Irving (2000), it argues that judicial reconstructions of
‘the Holocaust’ may have been ‘cooked’ in accordance with case-specific remits but they were
also empirically accountable, ‘credible’ and ‘truth-full’ in content. The law is therefore capable
of acting as a model of good history’ as academically required. Furthermore, in identifying
the primacy of the discursive (legal) over the empirical, it argues that the practises of judicial
historying lend support to the rationale of the 'narrative-linguistic' genre. The article then
engages with these findings to comment on the validity of empiricist and narrativist
explanations of academic historying beyond the courtroom.
Key Words: empiricist-analytical; narrative-linguistic; history-law relationship;
historiography; holocaust-related trials.
An Investigation into ‘What is History?’
As an ever-expanding body of literature confirms, debates between realist and post-
foundational theories on ‘what is history’ persist, even if they are ignored by a majority of
practising historians (Pihlainen, 2013, p245). It is also clear that initial fears of ‘intellectual

3
barbarians at the disciplinary gates’ (Evans, 1997, p8), and a resulting 'pomophobia'
(Southgate, 2003) once pervading the academy, have been supplanted as postist ‘sensibilities’
(culture, identity, language, power) have been incorporated into everyday historiographical
practise (Stone, 2012, p9). Therefore, Tom Lawson (2010) is partly correct when concluding
that historians are, to a certain extent, 'all postmodernists now' (p3). But his claim is largely
related to their method and certainly does not extend to their theoretical affiliation or
consciousness. Rather, even if such ‘sensibilities’ have established ‘a place at the
disciplinary table' (Finney, 2013, p187), the rationale of an identified empiricist-analytical
genre (Munslow, 2001; Eaglestone, 2004, p6) remains dominant in the postmodern age. As
such, what constitutes ‘good history’ remains contested between the majority of historians
adhering to Rankean conventions and form and those convinced by not only post-foundational
critiques in general but the rationale of an identified ‘narrative-linguistic’ genre in particular
(White, 1987, p82) that challenges its disciplinary claims and authority. In other words,
disputes remain between those defending the corresponding competence, and even truth, of
historical scholarship and those agreeing with Hayden White that, since 'the past' is
ontologically distinct, and therefore inaccessible, historians must preconceive and prefigure the
content of its traces into familiar plot-lines (comedy, romance, satire, tragedy) that are as much
invented as found (pp58-66). According to Stanley Fish, it is a quarrel that has survived “every
sea-change in the history of Western thought …”, with those highlighting the fictive processing
of all historiography consistently on the losing side (Cited in Jenkins, 1995, p131).
1
Although previous notions of an intractable debate have become 'cliched' at best’
(Eaglestone, 2004, p10), a comparative study of empiricist and narrativist voices suggests that
on the subject of ‘what is history’ four distinctions of explanation prevail: (1) It is accepted by
all that past realities existed, but disputes remain over the 'presence' of the past (Munslow,

4
2014, p571) when reconstructed as historiography. Consequently, academic history has either
a “matching” function' with the past (empiricist) or a “making” function' as the past (narrativist)
(Stone, 2003, p229). (2) It is agreed that empirical accuracy and accountability is essential to
historiography, but distinctions remain over the primacy of evidential (past) content or the
discursive (present-centric) form. Therefore, historical knowledge is either bounded by its past
sources and texts (empiricist) or emplotted as stories 'of a particular kindthat 'float free' of
their content (narrativist) (Eaglestone, 2001, p26; Jenkins, 1991, pp5-6). (3) All voices accept
the netted (positioned) authorship of historiography (Fulbrook, 2002, p29), but disputes
remain over the mechanisms of adjudication. Verification of the cognitive credibility of
contested interpretations is therefore sited in either evidential constraint (empiricist) or the
historian's “elective affinities” (argument, hypothesis, ideology) (narrativist) (Munslow, 2003,
p168). (4) All voices recognise that the once-acclaimed history/fiction division is 'an
oversimplification', but distinct differences remain over the former’s 'realist' authority and
esteem (Munslow, 2013, pp260-261). Academic scholarship is therefore either a superior form
of knowledge of ‘the past’ (empiricist) or no more 'truth-full' than other forms of historying
(narrativist) (Munslow, 2003, p194; McCullagh, 2008, p277).
The endurance of these explanatory distinctions may be testament to the hegemonic
longevity of the empiricist-analytical genre that has governed and privileged the history
discipline since the nineteenth century (Boldt, 2014). It may also be testament to a lack of
communication between empiricist guardians, who tend to focus on the research stage of
historical knowledge, and narrativist critics, who tend to focus on its fictive reconstruction
(Jenkins, 1999a, pp93-94; Munslow, 2011, p579; Pihlainen, 2016a, p148).
2
It may likewise be
testament to the absence of an embedded theoretical approach in history degree courses, rather
than the inclusion of separate modules relating to specific categories of explanation (class,

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Abstract: First published in 1961, Raul Hilberg's comprehensive account of how Germany annihilated the Jewish community of Europe spurred discussion, galvanised further research, and shaped the entire field of Holocaust studies. This revised and expanded edition of Hilberg's classic work extends the scope of his study and includes 80,000 words of new material, particularly from recently opened archives in eastern Europe, added over a lifetime of research. It is the definitive work of a scholar who has devoted more than 50 years to exploring and analysing the realities of the Holocaust. Spanning the 12-year period of anti-Jewish actions from 1933 to 1945, Hilberg's study encompasses Germany and all the territories under German rule or influence. Its principal focus is on the large number of perpetrators - civil servants, military personnel, Nazi party functionaries, SS men, and representatives of private enterprises - in the machinery of death.

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"The Holocaust and the law: a model ..." refers background or result in this paper

  • ...Moreover, the accounts/representations authorised in each case were consistent with the content of established scholarship of the Holocaust prevailing at the time (Hilberg 1961; Browning, 1985; Browning 1992; Dwork and Jan van Pelt....

    [...]

  • ...Holocaust prevailing at the time (Hilberg 1961; Browning, 1985; Browning 1992; Dwork and Jan van Pelt. 1996) and remain familiar in present-day historiography (Longerich 2010; Cesarani 2016)....

    [...]

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Frequently Asked Questions (1)
Q1. What are the contributions mentioned in the paper "The holocaust and the law: a model of ‘good history’?" ?

This article aims to contribute to debates on ‘ what is history ’ by evaluating the rationale of ‘ empiricist-analytical ’ and ‘ narrative-linguistic ’ theories of historying through its practice in Holocaust-related trials. The article then engages with these findings to comment on the validity of empiricist and narrativist explanations of academic historying beyond the courtroom. Furthermore, in identifying the primacy of the discursive ( legal ) over the empirical, it argues that the practises of judicial historying lend support to the rationale of the 'narrative-linguistic ' genre.