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. Mindful of a long-standing ‘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 and Ernst Zündel and the civil case instigated by David Irving, 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, the practices 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.