Borgwardt: A New Deal for the Nuremberg Trial: The Limits of Law in Generating Human Rights Norms

Elizabeth Borgwardt (Washington Univ., St. Louis - History) has posted A New Deal for the Nuremberg Trial: The Limits of Law in Generating Human Rights Norms (Law and History Review, forthcoming). Here's the abstract:

This article is drawn from a larger book project, taking shape under the working title Nuremberg: Crimes Against Humanity in History & Memory, with the 1945-46 Nuremberg trial serving as a kind of fulcrum. The larger project speaks across disciplines to examine not only the first juridical expression of the idea of crimes against humanity at the main Nuremberg trial, but also the concept’s most salient intellectual antecedents and political and cultural legacies.

The article makes a historiographical argument and a normative argument, and the two are linked. First, a discussion of how we might resituate the Nuremberg trial, arguing that a textured and detailed inquiry into the broader policy context of the trial might indeed yield a few mildly prescriptive guidelines about the possibilities for using legal ideas and institutions to move a polity beyond an era of mass atrocities. The article describes the pluralist, “New Deal” nature of the trial, using that label in the looser sense of the historian of ideas Isaiah Berlin, as a general sensibility of a cohort of reformers who prided themselves on being hard-headed and practical, without bothering much about conceptual niceties.

Secondly, the article suggests that such a contextual approach also highlights the limits of a search for an overarching theory of “transitional justice,” positing that a more promising path may be concretely to show the role of norms and rules in what the article calls the “thickening” of the international politics of the 1940s. The article then concludes by offering one such concrete example, contrasting Nuremberg with the virtually-contemporaneous Tokyo trial. Tokyo’s troubled legitimacy suggests both the power of small differences and the force of a wider rule of law ideology in developing and consolidating evolving norms for international justice.