The Law on History


In the case of Irving vs Penguin Books Ltd, the law was embroiled in a difficult case, which forced them to decide on the validity of a historical claim. Whilst it was labelled a libel case, this was a fundamental question about history. Experts including Richard J Evans were called to the stand as witnesses throughout the trial. The significance of this trial does not lie in the actual arguments, but the result delivered by the judge and the historical judgements that were made. 

History is a complex subject and is about interpreting and understanding the past. Historians use a variety of primary and secondary sources to, put colloquially, “work out what happened”. By using these sources, they can justify arguments and theories about past actions. However, historians do disagree and in this case, the argument was over the Holocaust. David Irving brought a British libel suit against Deborah Lipstadt and her publishers, Penguin Books, for claiming he was a denier of the Holocaust in her book, Denying the Holocaust. Significantly, the case was brought to Britain courts rather than being brought to America, where Lipstadt was based; in British libel suit, the defendant holds the burden of proof whilst in America, it is the other way around. Hence, Lipstadt was forced to legally and historically show that her claim about Irving was true. The mixing of historical information and legal complexities caused this trial to gain widespread media coverage within historical circles, but also within the academic media. 

The case itself was a bench trial and both sides hired high-quality reputable lawyers in what was not just a legal case, but a defining moment in academic history. The lawyers for Lipstadt spent significant periods, with expert historians, trawling through the works of Irving. They were ultimately forced to prove that Irving was historically incorrect, and they did this by reading the footnotes. They would search through each of his sources and ensure that they represented the view Irving took. What they found was a group of misused and distorted historical sources. They were able to argue the comments by Deborah Lipstadt to be true. Therefore, this proof made the libel claim impossible to justify – it was not libel but academic truth.

However, they also asked key historians like Richard J Evans to look at the work of Lipstadt and Irving, to try and gain his expert opinion. This brings in the idea of historiography; which is simply the study of written history. He wrote the book, ‘In Defence of History,’ which explores the value of history and historiography in the modern age. There has been debate at universities, and in academic history, over how we should use this skill. As the expert witness, he concluded that Irving had been factually and intellectually incorrect in denying the Holocaust. He compared the reasoning and the factual evidence provided, to make this judgement. He presented a written and oral testimony to the court; he was also subject to a cross examination. This formed the basis of the Lipstadt defence which can be described as the justification defence. Rather than using legal escapism, she simply ensured her actions were shown to be fair and justified.

Irving and his lawyers began with an advantage, due to the burden of proof. However, the irreconcilable actions of falsely manipulating sources, inevitably caused significant difficulties when he came to defend his position. Ultimately, his defence was doomed because there was no libel case – what Lipstadt had said was blatantly true, now that the sources had been explored. 

The judge delivered a crushing 397-page verdict, which he ruled in favour of Lipstadt and gave a damning report of Irving. They concluded him to be a holocaust denier, disappointing historian and that the defence was entirely correct. This was a judgment that has set an important legal and historical precedent for the future. 

The law and history interacted in what was an incredibly interesting case. David Irving was proven to be factually incorrect and it established the value of evidence in historical law. Despite the claim from Irving about the personal, economic and academic hardships he suffered, the truth and history were prioritised. The competition between historians over finding the truth makes it an interesting discipline. Regardless of the topic or personalities involved, history and evidence should be valued over persona and economic disputes. Academic history, which has a reliance upon evidence was strengthened once more.

In addition to this, the law was conjoined with much historical debate. Legally, the precedent was set for the value of evidence and removed the potential for other historical libel cases. This is a topic with no legislative agenda, and hence the civil case only uses precedent. Hence, this ruling will be significant for years to come. The law also proved the strength of evidence, not only in academia, but also in legal cases. 

History and law are both academic and complex subjects, and have been discussed and debated on many occasions. The intertwining of topics has caused civil law to address historical issues; it is impressive to see how the law acted upon these issues. The Holocaust was a tragedy and to be debating abut its existence is disgusting, though that is not the significant thought here. The important fact is that the law sets a precedent for historical works on evidence, not personality. 


  1. Steve Busfield, “Irving loses Holocaust libel case, Guardian Books, 11 April 2000
  2. Holocaust denial on trial: the story of Irving v Lipstadt, HistoryExtra, February 17 2020
  3. Marouf Hasian Jr, Holocaust denial debates: The symbolic significance of Irving v. Penguin & Lipstadt,
  4. The Irving Judgement,


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