While potentialities alone, without their actual expressions, cannot constitute historical evidence (this being one of the few correspondences between historical and legal evidence, at least in the Western world), the purposes of history and of law are different. The purpose of the law is to maintain justice by eliminating injustice; the purpose of history is to pursue truth by eliminating untruths. And the historian's recognition that reality encompasses actuality and potentiality reflect his propensity to see things with the eye of a novelist rather than the eye of a lawyer.
John Lukacs, The Future of History, 124
But what happens when the law must adjudicate the facts of history, and in particular, the works of historians? Can the courts "do justice" to history?
The 2016 release of Denial, based on the book, History on Trial: My Day in Court with a Holocaust Denier by Deborah Lipstadt explores these issues and does so rather well. Because of the very significant difference in libel laws between the U.S. and U.K.--which has actually led to American courts not recognizing British libel judgments--Lipstadt was sued by British historian David Irving for libel in London, not in the U.S., where the book was first published and where Lipstadt taught at Emory University. The account is well told, and I read that screenwriter David Hare stuck to the trial transcript in the courtroom scenes, which struck me as realistic (although different from an American courtroom).
Some of the interactions seemed contrived. Lipstadt, played by Rachel Weisz, comes across as naive at some points. Part of the dramatic conflict in the film comes from Lipstadt's individualist attitude and willingness to engage in public battle versus the team approach of her British solicitors and barristers and their emphasis on pursuing a winning trial strategy. Some of the issues that come up seem realistic, but arise relatively late in the proceedings and display a surprising naivete on the part of Lipstadt. (I just purchased Lipstadt's book for $1.99 on my Kindle, now re-titled Denial for the movie tie-in, and I'll let you know if that portrayal is accurate according to her.)
Two themes that the movie touched upon--and most movies can only "touch upon" and not fully address complex themes--concern "giving a voice to the victims" and the importance of truth in the trial process. As to giving voice to victims, this is a continual challenge in many court cases, especially those that involve serious harm or death to loved ones. For instance, a criminal trial is about the guilt or innocence of the accused, not the nature of the harm committed (although prosecutors try to work it in and it no doubt does come into play). As the lawyers tell Lipstadt in the movie, the trial is not for therapy nor for giving voice to victims, it's about defending her and her publisher from a judgment for libel. Harsh but true.
The other issue goes to the truth. The nature of truth, the challenge of proving the truth (which fell upon Lipstadt and her lawyers and not upon her accuser), and the importance of truth. If these issues do not resonate with you, you are not awake to the world in which we live.
