How Could Laws Support the Holocaust? How to Prevent This from Happening Again?
How Could Laws Support the Holocaust? How to Prevent This from Happening Again?

Summary/Abstract: This article examines how law could allow, enable, or even support the Holocaust and asks what legal and cultural safeguards are necessary to reduce the risk of comparable catastrophes recurring. Building on a keynote lecture delivered at the ‘Holocaust and Law’ conference (Cluj-Napoca, 6–7 November 2024), it approaches the question through legal history and legal philosophy, focusing on the interrelations between law and political power, law and morality, and law and culture. The analysis rejects overly simple explanations grounded solely in individual culpability or the presence of a totalitarian regime and instead emphasizes structural vulnerabilities within modern constitutionalism. First, it argues that the primacy historically accorded in parts of European constitutional thought to sovereignty and legislative supremacy – shaped by the notion of law as an expression of the general will – has repeatedly weakened the effective entrenchment and judicial enforceability of fundamental rights. Second, it identifies a voluntarist or will-based conception of law, reinforced by legal positivism, as a pathway through which law can be reduced to command and coercion, thereby becoming a tool of domination rather than a constraint on power. Third, it contends that the rejection of human nature and natural law undermines the foundations of inherent dignity and pre-political rights, rendering rights contingent on state recognition and vulnerable to ideological manipulation. In conclusion, the article considers the post-1945 turn towards constitutional supremacy and rights-based adjudication, while warning that institutional design alone is insufficient without a culture capable of grounding dignity in shared humanity and resisting the political instrumentalization of law.

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