"Denial" and Disinterest

Having taken myself off to see Denial the other night, I've been thinking about its portrayal of law - specifically, how it's done in the English courtroom.

The film that tells the story of Holocaust-denying Nazi third-rate historian David Irving's libel suit against Deborah Lipstadt.  His complaint was, basically, that she shouldn't have called him a Holocaust-denying Nazi third-rate historian, and that in doing so she was a big meanie, and booooo!  And, of course, as everyone knows, he lost.  This is why I can call him a Holocaust-denying Nazi third-rate historian here with impunity.  (Well, under the terms of the 2013 Defamation Act, I probably could anyway: the requirement for serious harm would mean that a blog with a readership as low as this would slip through the net.  But the point stands.  English law was satisfied that David Irving is a Holocaust-denying Nazi third-rate historian.)

One of the plot points - can one talk about a plot when one is aiming to represent reality?  I suppose you can: you can't distill a dispute that lasted years into a couple of hours without (a) deciding that there's a story worth telling there, (b) where the main parts of that story are to be found, and (c) weaving them into a plot - Anyway: one of the plot points concerns the way that English libel laws worked at the time.  These laws famously made it very hard to defend a libel action; the burden of proof would be on Lipstadt to show that she was correct, rather than on Irving to show her incorrect.  In a reversal of the normal order of legal proceedings, she'd have to prove her innocence; in effect, she'd have to show that the Holocaust happened.  Rachel Weisz' Lipstadt is clearly flummoxed by all this; and the film is plainly sympathetic to her confusion.  The English defamation laws were a mess.  (Whether they still are is for another post.)  Lipstadt is also baffled by the distinction between solicitors and barristers, meaning that it's a surprise to her that the lawyer she'd hired to take her case, and who'd be doing the donkey-work to put it together, would not be the lawyer who presented it in court.

I mean, you can see why someone not brought up on the system would think it weird.


Yet, despite this, the striking thing about the film is that it is, in many ways, a love-letter to the English legal system.

Lipstadt is shown frequently as being earnest, and someone who cares about the truth and - vitally - about the Holocaust and those who lived through it.  Their feelings matter to her, and there is no attempt to hide that sympathy.  Hers is the emotional core of the film; for the vast majority of it, she's *this* far away from making a grand emotional speech about the nature of what happened, those killed, and those left behind.

The woman who cares and the lawyers who don't.
Except it's always more complicated than that, isn't it?

Were this a fictional account, and - dare I say it? - more Hollywood, there would almost certainly have been a grandstanding scene like that; and we'd've discovered that her brief was a survivor, or had been on the kindertransport, or something like that, and was only just keeping himself together.  Instead, what we get is a contrast between the earnest, campaigning (and clean-living) American, and the small-c-conservative, apparently-disengaged-to-the-point-of-rudeness (and chain-smoking and heavy-drinking) Brit who might as well be bound in old leather.  It sets up a nice dramatic tension between Lipstadt and Tom Wilkinson's Richard Rampton.  And the advantage of this is twofold.  First, it's reality.  Second, it's much more satisfying: the Hollywood version would have it too easy.  In reality, Lipstadt's victory was earned.  Hard earned.

But why does that make the film a love-letter to the English legal system?  Precisely because it is represented by Rampton's insistence that the facts should stand on their own.  Anthony Julius, the solicitor, has strategic reasons for not letting Lipstadt take the stand, and principled reasons for not inviting survivors to testify in Lipstadt's defence; but Rampton seems to me to be the personification of the idea that the case will and should stand or fall on its merits: that it's the brief's job to present the case in the best possible light, but to do so in as doughty a way as possible.

Feelings don't come into it.  It's not about him, or Lipstadt, or the survivors, or the six million.  They're all involved, for sure; but they aren't what the case is about.  The case is about truth - about the world as it is, irrespective of how anyone feels about it.  Virtue is located in the attempt to get at that world, difficult though it may be.  And it's clear that the film takes this view.  Rampton is detached, hard to read, at first glance unsympathetic... and the hero of the piece.  In other words, we've got two very different ways of understanding justice and the purpose of the law.  Is it to provide closure, or to provide truth (with closure as, at most, a bonus)?  For Rampton, it's the latter.  I think that the film thinks the same thing.

Now, one might say that he is coming to it from a position of immense privilege.  He doesn't have to be emotionally involved, precisely because the case does not really touch on him.  Fine.  That is a privilege.  But the essence of a privileged position is that it's a position that is presumably desirable to occupy.  If it weren't desirable to occupy it, it would simply be a position.  To complain that a position is privileged implies one of two things: either that the people who don't occupy it should have more of an opportunity to do so; or that those who do shouldn't.  Since the latter is levelling down, only the former really makes sense.  Rampton's privileged position, then, is aspirational.  If you're leading a defence against a Holocaust-denying Nazi third-rate historian, the film says, this is how you do it.  You get the privilege - that word again - of caring outside of the court, when you're not being a lawyer.

In an interview about the film, Rachel Weisz said that it's about truth: that Lipstadt's victory was "a victory for truth over opinion".  That is accurate.  But to hold to that claim, it means taking it seriously: of jettisoning the idea that Lipstadt ought to have won because we prefer her opinion.  No: she ought to have won because, but only because, truth was with her.  Irving lost not because his opinions were odious, but because he couldn't substantiate them.  To that extent, he and Lipstadt were in the same boat.  Whomever had the better case would win; but better doesn't mean "nicer" or "more reassuring".  And the film is to be admired for facing up to that.

I suspect I'll be showing it in my legal ethics course next year.

Read more at: https://inews.co.uk/essentials/culture/film/new-film-denial-shows-dad-brought-holocaust-denier-david-irving/