`I do not Attach Great Significance to it': Taking Note of `The Holocaust' in English Case Law
| DOI | 10.1177/0964663908097079 |
| Date | 01 December 2008 |
| Author | Didi Herman |
| Published date | 01 December 2008 |
| Subject Matter | Articles |
‘I DONOT ATTACH GREAT
SIGNIFICANCE TO IT’: TAKING
NOTE OF ‘THE HOLOCAUST’
IN ENGLISH CASE LAW
DIDI HERMAN
University of Kent, UK
ABSTRACT
The first part of this article traces the history of the word ‘holocaust’ and the phrase
‘the Holocaust’ in English judicial discourse, both in cases where the mass killing of
Jewish Europeans in the early 1940s was a relevant issue, and the many more cases
where it was not. The second part of the article returns to a selection of the recent
cases, arguing that when the Holocaust is referred to in contemporary judgments it
tends to be spliced in as a form of stock footage, and suggest that this routinized
manoeuvre succeeds in misremembering the past, rather than contributing to any
substantive comprehension of the events the phrase is intended to describe. More than
this, however, the uses of the Holocaust by the judges may also reinforce particularly
English understandings of Jews and Jewishness. Far from acting as a mnemonic device
to recall atrocity, the Holocaust can in fact act as an aid to remembering what it is
‘the English’ find distasteful and alien about ‘the Jew’.
KEY WORDS
Holocaust; Jewish; judges; memorialization; memory
INTRODUCTION
We live in the age of the Holocaust of the Jews (Howe, 1987, Lord Hailsham)
IN THIS article, I consider the many meanings of the word ‘holocaust’, and
the phrase ‘the Holocaust’ in English 20th- and 21st-century legal cases.
I explore how the term ‘holocaust’ circulated and disappeared, when and
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DOI: 10.1177/0964663908097079
in what contexts ‘the Holocaust’ emerged, and how we can understand the
work ‘the Holocaust’ does in legal judgments. I focus predominantly on the
deployment of Holocaust references in cases having little obvious relation-
ship to Nazi policy, or mass killings of any kind as I am particularly inter-
ested in routine reiterations of the Holocaust in judicial discourse. Thus,
cases explicitly about the events the Holocaust is usually intended to describe,
war crimes and ‘denial’ trials in particular, receive little attention in these
pages (but see Bloxham, 2003; Douglas, 2001; Evans, 2002; Fraser, 2005; Hill
and Williams, 1965). Rather, this article tells two overlapping yet diverging
stories; first, I offer a history of the term ‘holocaust’ in a range of English
legal cases over the course of the past 100 years; second, I consider how ‘the
Holocaust’ has circulated in judicial discourse once that phrase proliferated.
In mapping this terrain, I am conscious of the many debates that swirl
around the politics of the phrase ‘the Holocaust’, the questions of ‘analogy’,
‘scope’, ‘uniqueness’, ‘banality’ and ‘rationality’ (e.g. Arendt, 1963; Bauman,
1989), the claims of big business (Cole, 2000) and industry (Finkelstein, 2000)
associated with it, the rejection, by some, of the phrase altogether (e.g.
Agamben, 1999), as well as the reasonably well-trodden ground of (un)repre-
sentability, ethics, and law ‘after the Holocaust’ (e.g. Fraser, 2005; Friedlander,
1992; Lentin, 2004; Rose, 1996; Seymour, 2007). My intention here is to
bracket these debates, although many of the issues they concern will arise
during the course of my exploration. While it is true that by writing an article
that centres on the phrase ‘the Holocaust’ I may contribute to its problem-
atic iconography, I am not overly concerned with this danger.
In a British context, as I go on to explore, the phrase has arguably not
achieved such iconic status. Critics such as Cole, for example, may be exces-
sive when they suggest that ‘western culture’ in general is ‘saturated’ with the
Holocaust (Cole, 2000). Such saturation is manifestly not evident in the UK
(although talk of it may be).1Thus, in Britain at any rate, we might do well
to heed La Capra’s warning against an ‘over-critique’ of Holocaust memori-
alization (1992). However, rather than taking a position in this debate, it is
primarily for reasons of clarity that I use ‘the Holocaust’ in this study solely
to refer to the phrase’s literal deployment by judges. When I wish, myself, to
refer to the German-led systematic mass killing of Jewish Europeans, it is a
variant of this phrase that I use.2I should also note here that in almost all
cases where ‘the Holocaust’ is deployed by judges in relation to German
action during World War II, it signifies the mass killings of Jews and not the
mass murders of Roma, Soviet POWs, and others who were also victims of
German killing policies. This study, then, as its purpose lies within a larger
project on representations of Jews and Jewishness in English law (see Herman,
2006, forthcoming), has a similar focus.
Methodologically, my analysis arises out of extracting approximately 50,
electronically-available cases, over the period 1906–2007. Most of them were
identified by searching for the term ‘holocaust’; however, a significant pro-
portion were ones I had already collected for the larger project noted above,
for which I have established a database consisting of several hundred cases.
428 SOCIAL & LEGAL STUDIES 17(4)
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