In this article, which appeared in (1997) 33(1) Gonzaga Law Review 241, Credence Fogo-Schensul does not just argue for allowing holocaust denial laws, which is something of a challenge in the US context, but for an international law requirement that states have such laws. In part, Fogo-Schensul bases this on a reading of UN documents starting with the Charter, which leads to the conclusion that “the Holocaust is a juridical fact, under both treaty and customary international law” (at 255). The emphasis that the US gave – and gives – to freedom of expression does not take account of this, and to what Credence sees as the exclusion of Holocaust denial from international law’s freedom of expression norms.

Fogo-Schensul covers a lot of ground, and much of the discussion is really about inciting racial and religious hatred – an area where, it must be agreed, the US is something of an outlier. A case for Holocaust denial being – distinctively and in itself regardless of the motive of the denier – criminal is not really made.  There are flickers, for instance a discussion of the idea of mental harm to minorities, but these are not sustained. Fogo-Schensul also seems more relaxed with the idea of “juridical facts” determining historical content, and punishing people for disagreement with these juridical facts, than I could ever be. This to me is the difficulty with laws criminalising holocaust denial. Perhaps holocaust denial is intended as a place-holder for extreme hatred of those groups who suffered during the holocaust, but others may deny the holocaust with a different motive. Consider Bertrand Russell’s “Five Minute Hypothesis” – which for the absolute avoidance of doubt I should stress he found neither a convincing description of reality, nor interesting:

“There is no logical impossibility in the hypothesis that the world sprang into being five minutes ago, exactly as it then was, with a population that “remembered” a wholly unreal past. There is no logically necessary connection between events at different times; therefore nothing that is happening now or will happen in the future can disprove the hypothesis that the world began five minutes ago”.

The “five minute hypothesis” is an extreme, but some religious groups have argued, and continue to argue, for the creation of the world by a divine being which has included signs of much greater age. Readers who know of an extreme young-Earth community who teach that the world was created after 1945 should get in touch. And what of those groups who teach that the material world is illusory?

I am being mischievous – supporters of holocaust denial laws would argue that they require a much more specific sort of denial than I posit above. But I remain nervous of law being used to stifle disagreement with “juridical facts”.

One of the things I love about law and religion is the ubiquity of the subject. Religion pervades every area of human life, and so can be relevant to every sort of legal interaction. That is one of the reasons I remain nervous about the development of a canon of the subdiscipline of law and religion. Religious freedom law around Article 9 and the Human Rights Act is extremely important; as is equality law around the Equality Act. But there is more to the interaction of religion and law than this. So my eye is always caught by articles appearing off the beaten track for the field – for instance this case-note in (1995) Farm Tax Brief February 14.

The case-note deals withi R v Sheffield Housing Benefits Review Board (The Times, 28 December 1994). The case concerned members of a religious group, which required its adherents to live in community houses on terms which included obligations of a “spiritual and domestic nature”. If the tenancy was “otherwise than on a commercial basis”, housing benefit would not be paid. Blackburne J held that in assessing whether there was a commercial basis, it was important to look at the arrangements as a whole, and not just to look at the rent payable. This approach is endorsed by the Farm Tax Brief case-note writer, who suggests that it may usefully be applied to areas more directly relevant to their readership, especially around inheritance tax where “it is sometimes necessary to be able to show whether a transaction, particularly one within the family, has been undertaken on what might be regarded as commercial terms”.