History, Memory and Judgment: Holocaust Denial, the History Wars, and Law's Problems with the Past

Abstract

Australia's current 'History Wars' raise difficult historiographical questions about establishing what happened in the past. In light of the courts' often important engagements with history, these questions have special significance for the law. Using the Irving v Lipstadt libel case regarding Holocaust denial and the possibility of a defamation action in the History Wars - both allege deliberate fabrication and distortion - this article explores how history and historians are subjected to legal judgment. It identifies as key considerations the methodological differences between and within law and history; the use and misuse of postmodernism and relativism; and the role of law and legal judgment in the transmission and construction of national memory.

Keywords: Holocaust denial, history, memory, defamation, libel, law and history, Australian history, Irving, Lipstadt

JEL Classification: K19, K39