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This week in my seminar on the Holocaust and genocide at California State University, I wrote two words on the board before discussion began: Lawand Witnessing. Beneath them, I sketched two different agendas
Under Law: inclusion, generalization, categorization, prevention
Under Witnessing: memory, moral ambiguity, particularity, human experience
We had just read the story—and controversy—of Raphael Lemkin’s development of the concept of genocide; the week before, we had discussed Primo Levi’s Survival in Auschwitz along with an excerpt from “The Grey Zone.” The contrast between Lemkin and Levi was initially subtle but quickly became the animating tension of the class
Lemkin, the Polish Jewish jurist who coined the term genocide, sought to name and codify, as he aspired to prevent the destruction of groups via a universal legal framework. Law, as legal scholar Mark Osiel has observed (a point highlighted by our reading from Andy Rabinbach), aims at inclusivity and generalizability. It creates categories broad enough to encompass multiple cases. It seeks standards that can travel across time and place. Essentially, law must flatten experience in order to function.
Levi’s project could not be more different. In Survival in Auschwitz,and especially in his reflections on the “grey zone,” Levi resists flattening. He insists on distinctions, on moral gradations, on the deeply uncomfortable ambiguities of life inside the camp. History, as Rabinbach puts it, aims at differentiation. It complicates. It particularizes. It unsettles
At first, my students—most of whom are training to become teachers—saw Lemkin and Levi as complementary. One builds legal architecture to prevent future atrocities; the other ensures that memory and moral reflection remain alive. Why choose between them?
But as we pressed further into Levi’s “grey zone,” that space of coercion and compromised agency inhabited by figures such as the Sonderkommando and prisoner-functionaries, tensions emerged. The grey zone destabilizes moral clarity. It resists neat distinctions between victim and perpetrator. It reveals how systems of terror corrupt judgment and warp responsibility
Could law incorporate that?
Genocide law depends upon identifiable perpetrators, victims, and demonstrable intent. It requires categories that courts can operationalize. The grey zone, by contrast, precisely exposes the instability of such categories within extreme conditions. Levi’s insistence on moral ambiguity—without collapsing into moral relativism—poses a profound challenge to legal frameworks built on definitional clarity
As one student put it: “The law needs clean categories. Levi blurs categories.”
This led to a deeper realization. The students began to see that law and historical witnessing are not merely complementary; they can be at cross purposes. Law must generalize to prevent. Levi differentiates to understand. Law asks: Does this crime fit the category of genocide? Levi asks: What happened to human beings in this place, and what did it do to their moral world?
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We turned to the “unprecedentedness” of the Holocaust to sharpen the discussion. Both Lemkin and Levi confront catastrophe—what many have called the unprecedented crime of the Holocaust—but they make sense of it differently. For Lemkin, the unprecedented demands a new legal category. Naming genocide is a way of responding to the rupture, of preventing recurrence through institutional mechanisms. For Levi, the unprecedented lies in the transformation of how we understand human relations and moral structures under total domination. His response is not codification but testimony.
Forced to choose, most of the students chose Levi
Their reasoning was revealing. Law, they argued, may be necessary, but it cannot capture the lived reality of the camp or the moral deformation Levi describes. It risks simplifying what must remain troubling. The students plan on becoming teachers, and the ethical complexity of the grey zone seemed more urgent than the juridical clarity of legal definitions
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Yet I did not want the class to end there. So, I “flipped” the conversation outward. We examined the Albright-Cohen report on genocide prevention, the United States Holocaust Memorial Museum’s work with government agencies during the Obama administration, and the doctrine of the Responsibility to Protect (R2P). These are attempts to institutionalize prevention without relying solely on criminal prosecution after the fact. They reflect an evolution beyond Lemkin’s original legal project while remaining indebted to it. I reminded students of Benjamin Ferencz, a prosecutor at Nuremberg and a lifelong advocate of international law and genocide prevention. Ferencz pointed out at the end of the film Watchers of the Sky that Tycho Brahe spent 25 years collecting data on the position of the stars and, like Lemkin, died unknown. But his student Johannes Kepler was able to take the data to prove the elliptical orbits and thus the Copernican system. Ferencz teared up as he told the story, hoping like Brahe that his life’s work in the fullness of time would not have been in vain.
The students also began to comprehend that law itself has adapted, expanding into early warning systems, interagency coordination, and diplomatic frameworks. Prevention today is not only about trials; it is about risk assessment, intelligence sharing, and policy planning. This is where Lemkin’s legacy continues, not in rigid categories alone but in the ongoing effort to translate moral urgency into institutional practice
Still, Levi’s voice lingered
What Levi offers, and what law cannot, is a form of moral pedagogy. The grey zone trains us to resist easy binaries, to remain attentive to coercion and structural evil, and to understand how ordinary people can be implicated in extraordinary crimes. If prevention requires early recognition of dangerous patterns, then the moral sensitivity cultivated by witnessing may be as important as legal codification
Teaching genocide is never merely about the past. It is about how we conceptualize responsibility, agency, and prevention in the present. Law gives us tools. Witnessing gives us depth. The challenge, as this class vividly demonstrated, is to hold onto both without allowing one to erase the insights of the other
