When Hope and History Rhyme by Douglas Burgess

Author:Douglas Burgess [Burgess, Douglas]
Language: eng
Format: epub
Publisher: Charlesbridge
Published: 2022-03-08T00:00:00+00:00

Conceptualizing the Nuremberg Tribunal as humanity’s attempt to restore faith in itself brings it squarely within long-standing debates about natural law. Recall the ancient dichotomy between Demosthenes and Xenophon. Demosthenes writes of the law as a moral truth, “a discovery and gift of the gods, and at the same time a decision of wise men, and a righting of transgressions.” Countless scholars from Cicero to Aquinas to Coke reiterated and reinforced this image. Yet Demosthenes’ contemporary Xenophon, a student of Socrates, saw the law very differently: “Whatsoever the ruling part of the State, after deliberating as to what ought to be done, shall enact, is law.” Law is essentially amoral, the articulated and enforced will of the state. This view too has a long and distinguished history, from Plato to the positivists. “Everywhere justice is the same thing,” says Thrasymachus in Plato’s Republic, “the advantage of the stronger.” [12]

An enthusiastic proponent of legal positivism was Adolf Hitler. Between 1933 and 1945, centuries of German law were arbitrarily swept aside by Gemeinschaftsdenken, “communal thinking.” Laws passed unanimously through the Reichstag, which now existed purely as a rubber stamp, or were issued as Maßnahmen, “arbitrary measures,” and Führerprinzip, “Führer’s orders.” The Nazis called upon judges to “overcome narrow normatism” through a process euphemistically described as unrestrained interpretation. The result, as one historian writes, was “that the judiciary, because of its positivist orientation, [was] helpless in the face of a legislator freed from all constraints.”[13] It is tempting to see Nazi law as raw articulated power absent any ideological or ethical buttressing, consistent with a Nazi “philosophy” that was both inchoate and contradictory. Yet if Nazi law had existed for the sole purpose of extending and reinforcing the state’s tyrannical grip and implementing its policies, it would be hardly unique. In fact there was a legal philosophy of sorts underpinning it, the very antithesis of natural law. As Hitler explained to the president of the Danzig senate: “Conscience is a Jewish invention. It is a blemish, like circumcision…. I am freeing men from the dirty and degrading self-mortification of a chimera called conscience and morality.”[14]

A debate among scholars dating back millennia had suddenly, in 1945, assumed the dimensions of an existential crisis for humanity itself. Put simply, the Nazi state was the fullest expression of Xenophon’s principle. If there was no transcendent justice, there could be no higher authority than the will of the state. Consequently it would be up to the state to determine criminality, and it could not, by definition, be criminal itself. No state or group of states could impose their form of law on another by anything except force. Even if the Allies lined the Nazi elite up against a wall and shot them (as nearly everyone in the British, Soviet, and American governments wished at some point to do), that action would be political rather than moral. The entire political history of the world up to that point reinforced the truism that acts of state could not be criminal.

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