A Common Cause -- Teaching Law and the Holocaust: Engagement and Commitments


The Law Teacher, Volume 5, number 2 (Spring 1998), p. 1-2.

About the Author

F. C. DeCoste teaches at the University of Alberta Faculty of Law, 485 Law Centre, Edmonton, Alberta T6G 2H5, Canada; (403) 492-3115; fax (403) 492-4924; tdecoste [at] law.ualberta.ca

Courses in legal theory, as taught in the context of the professional law school, have among their primary ends the goal of giving prospective lawyers an articulate and committed cause to live a life of law. Law school courses in legal philosophy seek, that is, not merely to provide students with ideas about law, but to do so in a fashion that reveals lawyering as an ethically viable and sustaining, morally attractive and significant, life project.

With these purposes in mind, I have developed and twice taught a legal theory course on law and the Holocaust. I proceeded from the understanding that the ethical and moral substance and point of liberal law and lawyering could nowhere be more starkly disclosed than in contrast to the role of law and lawyers in Germany between 1933 and 1945 and in Vichy France. But acting on this understanding proved to be troublesome. On the one hand, I had to steer clear of constructing a course in history; on the other, I could not reasonably presume that students would arrive at the course with any useful knowledge of the period generally, or of the Holocaust in particular.

These constraints very much defined the course that finally took shape. Its objectives are, first, to reveal the understanding of law that permitted German and French lawyers so directly and assiduously to contribute to state-sponsored mass murder; and second, to deploy that understanding as a means for coming to an informed view of the liberal understanding of law and lawyering. But to pursue either of these ends, it became necessary first to come to terms with the need for facts in a way that did not cede the course to history. I found the history required for disciplined reflection in the student edition of Raul Hilberg's The Destruction of The European Jews, in Ingo Muller's Hitler's Justice, and in Richard Weisberg's Vichy Law and the Holocaust in France, all of which are required texts.

As point of departure for philosophical inquiry, I have adopted Harold Kaplan's Conscience and Memory: Meditations in a Museum of the Holocaust (and will add to Kaplan, when next I teach the course, Tzvetan Todorov's Facing the Extreme: Moral Life in the Concentration Camps). Among the many virtues of Kaplan's wonderful work is its construction of holocaust as an ethical relation between perpetrator and victim, the substance of which is abjection wrought by the most fundamental fracturing of moral equality. So viewed, holocaust is an always potential form of human life and association. Thus the lived experience of the European Holocaust -- that actual relationship between murderer and violated -- becomes not just a cause for remembrance but an occasion for reflection on the possibilities for evil that reside in the politics of the human situation.

This understanding of holocaust serves to found class reflection on the origins of moral equality and the impulse to act against it, and on the ideological, political, and legal shape that impulse took in 20th century Europe, both in the totalitarian culture of Germany and in the decidedly liberal culture of France. The philosophical view of holocaust as first an ethical relation that subsequently takes moral, political, and legal form makes possible an inquiry about the relationship between moral equality (and inequality) and law. And it is from this conceptual soil that I wish slowly to emerge a view of liberal law as a subversion of power and of lawyering as a vocation, a way of life, defined by commitment to moral equality against the demands of power.

I have found films a most useful aid. The class viewed "Triumph of the Will" and "The Architecture of Doom" (both of which concern Nazi ideology), "The Wannsee Conference," and "Memory of the Camps" (on the planning and execution of the Final Solution). Not only do these films make real the past for students, but they make demands upon, indeed burden and confront, student sensibilities.

I cannot, of course, speak for students. What I can do is share my observations on their experiences. In so doing, I hope to reveal what I take to be the prizes and pitfalls of teaching the ethics and morality of law in the context of the Holocaust.

Altogether, 40 students so far have joined me in exploring law and the Holocaust. Almost invariably at the beginning of the course, my students have experienced difficulties in coming to terms with how properly to conduct themselves regarding the subject matter. Their problem is not one of moral distance, of being either too near or too far, from the horrors that are the course's concern. Though too little distance is sometimes a difficulty for some students, their major predicament has a deeper, less accessible and more troubling, aspect: namely, the course's fundamental requirement that we together confront the reality of evil. My use of films arises in this context. I use them not to close distance through sentiment but instead to awaken, engage, and challenge the moral senses of my students through, I hope, empathy. But since the question of evil is a problem chiefly in terms of a moral and cultural relativism with which students are thoroughly infected, I soon discovered, too, that a cure demanded more, indeed much more, of me.

What it demanded was not merely that I clarify and declare my stand with respect to law, theoretically and politically, though that clearly is necessary. More critically and much more personally, it demanded that I disclose myself, ethically, in relation to law generally and to academic lawyering in particular. That is, I had to confess the morality of the legal enterprise. That I was led to test and to define my care for law laid bare for me the vast difference, ethically as well as morally, between teaching law and teaching about the law. The latter requires neither confession nor profession, because it proceeds from an external, clinical, strategic, distanced perspective. When teaching law, one is professing law as a moral good and lawyering as a way of life.

Undertaken in the context of the Holocaust, then, disciplined reflection on law may disclose law's fragility and its promise -- how, as Karl Llewellyn once put it, "life is so terrifyingly dependent on law." The degree to which it does -- whether, in confronting the horrifying reality of mass murder, students will personally confront, engage, and commit to law -- turns, however, on the teacher's willingness to lead the way. And to do that well, law teachers must first take personal stock: alone, before their students do, yet in their midst, they must engage the meaning, both the responsibilities and opportunities, of their own life in law. Failing that, nothing will be won, and much could be lost. For if in teaching law and the Holocaust, law teachers manage merely to teach about law, they will have failed not just their students and themselves; the will have failed as well their responsibility to the countless faces that are the Holocaust.

If, however, they discharge that responsibility -- and in so doing, disclose for themselves and for their students the burdens of law and lawyering -- many more opportunities for reflection and for action will appear. My own path, for instance, has led me to reflect on the whole question of the obligations of universities, including especially law schools, with respect both to the Holocaust and to matters of moral equality more generally. It has led me as well to articulate, more consciously and earnestly than ever before the nature of the vocation of academic lawyering. All of which is to say, my experiences in teaching law and the Holocaust have fundamentally redirected my life in law. Change in the lives lived in the law, in the future, by my students made that redirection possible and is indeed the prize of the entire undertaking.