The limits of legal fairness : Holocaust denial and the law in America, Canada, France and Germany / by Robert A. Kahn.
This study examines Holocaust denial and the law in Canada, France, Germany, and the United States. It narrates criminal prosecutions, civil litigation and informal censorship of deniers by the media. In deciding these cases, legal actors must balance popular outrage at revisionism against loyalty to professional norms of legal fairness. Part I, “The Dilemma of Proof,” examines how courts handled the task of proving the Holocaust in court. By and large, legal actors chose fairness, but the form fairness took depended on local legal culture. Whether a court took judicial notice of the Holocaust turned less on whim or bias than on cultural variations in fact-finding norms (chapter 1). An in-depth look at R. v. Zundel, the lone common law prosecution of a Holocaust denier, reveals judges following internal norms, even when this meant trivializing the Holocaust (chapter 2). Part II, “The Dilemma of the Unpopular Accused,” examines popular responses to Holocaust-denial litigation. The public accepts fairness in principle, but takes no part in applying norms of fairness to concrete instances. The result is scandal and blaming. in Germany, judges faced removal from office for pro-revisionist verdicts (chapter 3). In Canada, lawyers and the media shouldered the blame for R. v. Zundel (chapter 4). In France, the legislature responded to scandal with the tough Gayssot law, which prevented deniers from raising truth-based defenses (chapter 5). Part III, “The Dilemma of Toleration,” examines the alternative of not prosecuting deniers. Does fairness disappear when criminal sanctions are no longer threatened? The evidence from the United States is negative. Formal toleration of deniers made informal censorship difficult, especially for college newspapers faced with revisionist ads (chapter 6). Conversely, in Canada, France and Germany—where revisionism is proscribed informal censors had an easier time excluding revisionist materials (chapter 7). Behind these dilemmas stands a conflict between the representative and autopoietic functions of law. Law represents the moral authority of society, but is applied by professionals who work outside the public eye. This duality explains the temptation and the dilemma of prosecuting Holocaust deniers.
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