The Memory of Judgment: Making Law and History in the Trials of the Holocaust, Lawrence Douglas (New Haven: Yale University Press, 2001), xiii + 318 pp., $35.00.
Is it possible for the law to do justice to the unprecedented and extraordinary crimes of the Holocaust? Are criminal trials able to represent the horrors of these crimes adequately and in a responsible manner? Can Holocaust trials that are organized to serve extralegal ends—educating the public, shaping collective memory, protecting historical truth—also maintain their legal integrity? These are the central questions asked by [End Page 193] Lawrence Douglas in his thought-provoking and powerful analysis of the laws' fifty-year "struggle with the crimes of the Holocaust." 1 To answer these questions, Douglas examines five postwar trials: the International Military Tribunal at Nuremberg (1945-46); the Israeli trials of Adolf Eichmann (1961) and John Demjanjuk (1987-88); the French trial of Klaus Barbie (1987); and, finally, the two Canadian trials of Holocaust denier Ernst Zundel (1985 and 1988).
Eschewing traditional legal modes of analysis, Douglas offers a fresh approach—one that could be termed cultural-literary—to the study of postwar trials. He aims to demonstrate that it is possible for the law to render "formal justice" against the perpetrators of the Holocaust and, at the same time, to succeed "in representing and judging traumatic history" (p. 5). Indeed, his work challenges critics such as Hannah Arendt who argue that "the purpose of a trial is to render justice, and nothing else." 2 Through an examination of what he calls the "great perpetrator trials," Douglas demonstrates that, in these cases involving traumatic history, the tension between formal justice and pedagogy has forced courts to come up with new and creative legal approaches that successfully accommodate both traditional and nontraditional visions of the law. In short, Douglas rejects Arendt's thesis and at once defends the remarkable resilience and adaptability of the postwar courts, which for the most part were able to reconcile these two divergent aims.
The book is organized in three sections, the first of which is devoted to an interesting and complex analysis of the Nuremberg trial. Nuremberg was designed to serve two ends: to render justice for all victims of Nazi aggression, and to educate the world about the unprecedented crimes of the Third Reich. Balancing these two objectives proved problematic for the participants, especially given the prosecution's decision to present its case largely by document—an often mind-numbing and tedious approach, but one that did result in the desired narrative history of Nazi aggression and criminality. 3 This is not to suggest that there were no attempts to represent the crimes of the Holocaust and therefore no "drama" at Nuremberg. On the contrary, attempts to represent traumatic history came in a variety of forms, including testimony by perpetrators and witnesses, and the introduction of gruesome physical evidence—the most powerful and dramatic of which was a documentary film, Nazi Concentration Camps, which graphically depicts Nazi atrocities committed against prisoners of war and civilians, although not specifically against European Jewry. The film screening provided the prosecution with the opportunity to turn images of Nazi crimes into "a viable legal idiom" (p. 27). By not addressing the special victimization of the Jews and instead conflating traditional war-crimes charges with the novel one of crimes against humanity, the prosecution was able to introduce evidence of the Holocaust (which Douglas does not define) but without having to elucidate the potentially explosive charge of crimes against humanity. While the history of the Holocaust was largely sacrificed in prosecuting the trial in this fashion, Douglas argues, Nuremberg preserved its legal integrity and remained faithful to traditional conceptions of the law. In other words, Nuremberg [End Page 194] was a resounding success: It not only produced an historical record of Nazism but also exacted justice—and both of these without disfiguring or defaming the law in the process. One of the most interesting core aspects of Douglas's analysis is an examination of the conflicted relationship between law and history. The tension between the prosecution's "desire to submit extreme outrages to the rule of law" and the court's "refusal to permit the law to be misshapen by its contact with atrocity" is the central issue, not only at Nuremberg but at the Eichmann trial as well (p. 64).
Whereas the experience of the Jewish victim of Nazi aggression went virtually unrepresented at Nuremberg, at the Eichmann trial the Holocaust took center stage. Consequently, the experience of the victim was highlighted, making the trial's didactic paradigm unquestionably testimonial. This was no accident. Gideon Hausner, the Israeli chief prosecutor, conceived of the trial as a pedagogic tool; by privileging survivor testimony, he hoped to give voice to the Jewish victims of Nazism, as well as to create a collective memory of traumatic history for Israelis. With this extralegal conception of the trial, Hausner attempted to turn survivor testimonies, which under conventional legal procedure should have been used only to prove the guilt of the accused, into narrative histories arising from "heroic memory" (p. 153). But Hausner's literary conception of the law directly contradicted the aims of the court, which were more traditionally "rules based" (p. 113). Ultimately, the court permitted witness testimony to continue (although it was curtailed) even though it was not directly relevant to the case against Eichmann, thus creating a survivor narrative and advancing Hausner's pedagogic aim. More important, argues Douglas, while the tribunal took judicial notice of the traumatic histories of survivors, it refused to allow this testimony to influence its judgment against Eichmann, as it was largely irrelevant to his guilt or innocence. Thus, by acknowledging the didactic paradigm of the prosecution and at the same time preserving the evidentiary rules of the law, the Eichmann trial succeeded in advancing both of its goals: exacting justice and constructing a collective memory of the Holocaust.
The final third of The Memory of Judgment is devoted to the Demjanjuk, Barbie, and Zundel trials. Douglas views the Israeli and French trials as "restagings" of the earlier Nuremberg and Eichmann trials, respectively, yet in his view they also served a greater narrative purpose as a "conceptual bridge" between the earlier perpetrator trials and the later trials against Holocaust denier Zundel (p. 185). Coming when they did, Douglas argues, the Demjanjuk and Barbie trials were intended, "at least in part, as a response to the spread of Holocaust denial" (p. 207). The failure of the Demjanjuk trial illustrates this point most clearly, perhaps signaling a time when the living memory of survivors will no longer be available to protect historical truth "from the spread of negationist lies" (p. 209). The preservation of responsible historical memory was one of the main reasons Zundel was tried, but as Douglas makes clear, unlike the great perpetrator trials that preceded it, the Zundel trial was a didactic failure. Zundel's attorney managed to use the law to blur the lines "between truth and fiction" (p. 243). Why did the Zundel trials fail where the other trials had succeeded? The answer, according [End Page 195] to Douglas, lies in the difference between using the law as an instrument of historical clarification (as at Nuremberg) and relying "upon the law to police history" (p. 256). In Douglas's view, the law is ill equipped to protect historical truth when confronted with an individual's legal right: When a tribunal is forced to choose between historical accuracy and "legal norms," it will always side with the latter (p. 256). This is precisely why Douglas concludes with a warning: the law should avoid trials of Holocaust deniers because proceedings of this nature run the risk of obfuscating historical truth and instead furthering deniers' lies.
The Memory of Judgment is a superbly crafted and imaginative
argument in defense of the law and its ability to maintain integrity in
the face of traumatic history. While allowing for the possibility of a
more expansive view of the law's capabilities, Douglas also acknowledges
how, under certain circumstances, the law is simply ill equipped to
contend with broader didactic aims. The Memory of Judgment offers
not only new perspectives on the trials of major Nazi perpetrators but,
more important, an alternative way to read and analyze legal attempts
to confront the traumatic history of the Holocaust.
Hilary Earl
Wilfrid Laurier University
Notes
1. By "struggle," Douglas means that Holocaust trials have been burdened with a dual aim: to represent adequately the crimes of the Holocaust as well as to judge those who committed the crimes. Douglas, The Memory of Judgment, pp.1, 7.
2. Arendt quotation in ibid., p.2.
3. This is not to suggest that no witnesses were called to testify at Nuremberg. Rather, RobertH.Jackson, the American chief prosecutor, believed that the best way to maintain the legal integrity of the IMT trial was to ensure that the evidence against the twenty-two high-ranking Nazi defendants was unassailable. Therefore documentary evidence ought to take precedence over more subjective evidence such as, in his view, witness testimony. See Jeffrey D. Hockett, "Justice Robert H. Jackson, the Supreme Court, and the Nuremberg Trial," Supreme Court Review (1990), pp.263-64.
