Law's ‘Jewish Question’? The Holocaust and Critical Theory
| Date | 01 September 2009 |
| Author | David Fraser |
| Published date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00771.x |
REVIEWARTICLE
Law’s ‘Jewish Que stion’? The Holocaust and Critical
Theory
David Fraser
n
David M. Seymour, Law, Antisemitism and the Holocaust, Abingdon and New
York: Routledge-Cavendish, 2007,138 pp, pbd22.99.
Some ten years ago,Ted DeCoste, writing in these pages, explored the centrality
of the destruction of European Jewryby Nazi Germany and its allies to the his-
toryof legal modernity.
1
He argued that despite the obvious connections between
law and the Shoah, ‘until very recently, the English-language legal academy has
proved itself completely immune to the de¢ning experience of this century’.
2
The decade since DeCoste’s intervention has seen the emergence of a growing
body of scholarship which has sought to address the historical lacuna in relation
to the Holocaust/law nexus and to u nderline the problematics of legal representa-
tions of the Shoah.
3
Among the most important interventions in this ¢eld of jur-
isprudential study is David Seymour’s Law, Antisemitism and the Holocaust.Packed
into the 138 pages of this innovative text is a myriad of insights into the relation-
ship between legal modernity and the Holocaust, as well as a careful set of ana-
lyses of the emplotment of antisemitismwithin critical theory and other forms of
modern philosophy; the relationships between and among these philosophical
treatments of antisemitism and liberal legality; and ¢nally the centrality of anti-
semitism to law, emancipation and mass killing.We owe Seymour a signi¢cant
intellectual debt for his (re)emphasis on the study of antisemitism in any attempt
to positionand understand the Nazi killing machine and toplace that extermina-
tion process within the traditions of Western philosophy and political and legal
practice.
While historical and sociological studies of the Nazi state have focussed onthe
important questions of the political, bureaucratic and legal structures and practices
which facilitated the mass extermination, the key role played byantisemitism has
been partlyobscured by potentially arcane discussions of the nature of the appa-
ratusesof the Nazi state.The historical debates betweenan intentionalist interpre-
tation of Hitler’s regime which discovered a murderous plan at the very
beginning of the Nazi rise to power and the functionalist approach which saw
the policies and practices of mass extermination through a more evolutionary
and contextual lens have provided important insights into the Holocaust, but at
n
Professor of Law and SocialTheory, Schoolof Law,University of Nottingham.
1 F. C.DeCoste, ‘Law/Holocaust/Academy’ (1999) 62 MLR 792.
2ibid 793.
3 See D. Herman,‘‘‘I do not Attach Great Signi¢cance to it’’: Taking Note of ‘‘The Holocaust’’ in
English Case Law’(20 08)17 Social& Legal Studies 427.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(5) 8 44^866
the potential expense of a deeper understanding of antisemitism as a phenom-
enon at the heart of European (and German) history, politics, philosophy and
law. The concomitant mass popularity and professional historical rejection of
Daniel Jonah Goldhagen’s ahistorical and inadequately theorised uniquely
German‘exterminationist’ antisemitism put back careful and considered studyof
antisemitism and the Nazi state within the Enlightenment tradition by several
years.
4
Seymouro¡ers us a chance to resituate the balance of historical and juris-
prudentialdebate and studyby focussingon whathe identi¢es as a‘double neglect’
within modern andcontemporary jurisprudence (xviii).
Seymour argues that we have paid insu⁄cient attention, ¢rst, to the debates
within criticaltheory about antisemitism and, second,to the intimate connection
between philosophical accounts of antisemitism and critical theory’s discussions
of law and rights as situated in the processes of civil and political emancipation
pursuant towhich‘Jews’became ordinarycitizens.
5
To summarise what Seymour
presents in careful and detailed analyses of di¡erent philosophers and intellectual
trends,‘the Jewish question’ and the study of antisemitism within the critical phi-
losophical tradition (under the umbrella of which he includes inter alia and per-
haps problematically Agamben, Arendt, Bauman, Nietzsche, Adorno and
Horkheimer, Lyotard, and Sartre) have always been intimately associated with
the historical and legal phenomena of Enlightenment emancipation.
Seymour asserts that critical theory identi¢es the phenomenon of modern
antisemitism as apolitical and social consequence of the emergence of the rights
bearing citizen of liberal legality.The replacement of an old social order and the
theoretical and political re-situation of identity as constructed though the lens of
that social order by a universality of rights and citizenship resulted in a political
antisemitism which singled out ‘the Jew’ as the force behind lost status and
the disappearing certainty associated with social roles and political relation-
ships within the previously established order. This Nietzcshean ressentiment over
and about a disappeared mythological past, the submerging of the Vol k by a cos -
mopolitan and rootless ‘citizen’, coupled with the predominance of capital over
¢xed real property, led through complex and concrete historical and social phe-
nomena and circumstances to the namingof the Other,‘the Jew’, as public enemy
number one. Antisemitism then emerges as a focus of study in critical theoryas
the consequence of the failures of political emancipation to mirror real social
practice and perception and to alleviate the anxieties which £owed from the
mismatch.
Of course, such an analysis reiterates a traditional reading of the debates about
the nature ofemancipation and itsrelationship to antisemitism which have circu-
lated on the Left since Mar x. Marx’s critique of Hegel’s philosophy of law/right is
positionedprimarily as a critique of the theologicaland thus apoliticalorientation
4 D.J. Goldhagen, Hitler’sWilling Executioners: Ordinary Germans and the Holocaust (New York: Little
Brown, 1996); F. Kautz,The German Historians: ‘Hitler’s Willing Executioners’ and Daniel Goldhagen
(Montreal: BlackRose, 2008); G.Eley,The GoldhagenE¡ect: Memory,Nazism-Facing the German Past
(Ann Arbor: Universityof Michigan Press, 2000); R.R. Shandley, Unwilling Germans? The Gold-
hagen Debate (Minneapolis and London: University of Minnesota Press,1998).
5 On the problematicsof emancipation from another perspective,see, P.Savy and D.Schreiber (eds),
‘Des Juifs contre l’Emancipation’ (2007) 28 Labyrinthe 11.
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r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(5) 844^866
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