A dozen years ago, I read Arendt’s Eichmann in Jerusalem and that provoked a lengthy peripheral interest in the problem of using legalisms to deal with the unexpectedly nasty monsters that occasionally crop up in humanity. As a moral nihilist [*] the nazi elite seemed tractable to me: they were just a bunch of power-drunk assholes who managed to gain power over a country with a great military, and they went on a great rampage, doing whatever got them off.
Recently, I’ve been listening to the Audible audiobook of The Nuremberg Trial by Ann and John Tusa. [aud] It’s been more interesting than I expected it would be, though it’s chock-full of niggling details about who said what, and in what sequence.
The most interesting part, to me, is the pointless challenge that the court set itself – trying to demonstrate impartial justice over a set of individuals who were utterly unconcerned with justice, except as it pertained to them. The court sorted through hundreds of thousands of pages of material, selected and shared its evidence, gave its briefings and cross-examined – the whole routine – in triplicate because the Americans, Russians, and British each wanted their say.
I had the most grudging respect for the Russians who said, early on “Why are we doing this? We all know how it ends. Let’s just shoot them now.” It sounds like there were many times when the American and British lawyers on the prosecution wished that the Russian advice had been taken.
The court’s overreach (for such it was) was that it wanted to put the organizations that made up the nazi regime on trial. It was not so much to try Goering or Keitel, as it was to try the Luftwaffe and Wehrmacht. Basically, they were inventing a sort of RICO (Racketeering, Influenced and Corrupt Organizations) doctrine, used in the US to prosecute organized crime leaders like Donald Trump who never actually do anything themselves, but rely on making broad hints to eager subordinates. Fortunately/unfortunately for them, the nazis kept exhaustive records of who said what, and when. That allowed for a great deal of courtroom drama, in which this nazi apparatchnik or the other said, “I was not at such-and-such meeting” and the prosecutor would say, “allow me to refresh your memory with these minutes of the meeting, signed and dated by you.” But the court went a step further and put the nazis on trial for waging offensive war. As you can imagine, that caused a great deal of trouble for the Russians, who were party to the Ribbentrop/Molotov pact in which Russia and nazi Germany agreed to attack and partition Poland and Ukraine.
That part had me shaking my head in despair, a lot. The nazis kept trying to introduce as evidence that the allied powers had been doing the same things. They just did them a bit more successfully. That’s the moral nihilism axis: the court was trying to place a moral onus on the nazi brass for what they did, but they wanted to try and convict entire organizations instead of individuals, and the individuals were a bunch of moral nihilists who would pretty much say or do anything to wriggle out of the obvious trap. So ensued a fascinating battle to keep the Versailles Treaty (which the allies didn’t live up to any more than the Germans did) off the table, while the defense team kept trying to introduce it. The authors of the book claim that this was a Tu Quoque defense – i.e.: “you did it, too” – and was therefore invalid. Which got me thinking: “why is it invalid?”
It seems to me that the Tu Quoque defense is what’s known as an “affirmative defense” and therefore is a piss-poor defense. It’s saying “I admit I shot that guy, but everyone shoots people and I was just going along with the shooty zeitgeist.” The first part, where you admit “I shot the guy” is where the court says, “stop, we are not listening past that.” Reasonable enough. But what the nazis should have done was what the Tu Quoque defense is really trying to do: accuse the court of hypocrisy. That seems to me to be entirely plausible, “Look, this court must recuse itself from sitting on this matter. You, a bunch of civilian-bombing monsters, are charging us with bombing civilians.” It’s probably late to armchair quarterback this thing, but the allies should have kept their hands off establishing a court and asked Switzerland or some neutral power to do it. The problem with WWII is there weren’t a lot of neutral powers left by the time it was all over. But the court had to adopt a really crappy response to the nazis’ attempt to bring Tu Quoque in: it ruled that the Treaty of Versailles was inadmissable evidence. Oh. Right. So, you’re trying Germany’s organizations for breaking the Treaty of Versailles but the treaty is inadmissable? At that point Hermann Goering said the German for, “give me a break.” And the Russians said, “See? We should have shot them. Cheaper. Faster.”
The German navy’s defense team were clever: they managed to sneak a bit of Tu Quoque in by subpoena’ing the British Admiralty’s standard operating procedures. Not to say “we did what you did” but rather, “these sorts of things are standard operating procedures of all sides in a naval war, as is documented in your own SOP. You can hardly hang our admirals as criminals for doing what admirals do.” Fortunately, for the court, the American and British armies, which also shot prisoners, did not include a section on “when to shoot prisoners” in their SOP, like the nazis would have, if they had thought of it.
In the end (this is probably not a spoiler, since it’s history) the main nazis were all convicted and hanged, except Goering who was convicted and died by self-inflicted poison, first. I don’t think the court accomplished what it set out to do – to discredit nazism. More certainly, it didn’t discredit authoritarianism, which is still alive and well and rampaging around the globe. Stepping back from the events in the court, it looks to me just like one bunch of authoritarians, who won, putting the hex on another bunch of authoritarians, who lost. Sure, the authoritarians who lost were really nasty bastards, but it’s nasty bastards to some degree or another all the way down. The British who engaged in the “Great Game of Empires” against France and Russia, can hardly claim to have their hands clean regarding practicing offensive war. “Oh, since we signed the Treaty of Versailles we’ve forsaken that kind of thing” just deserves a horse-laugh. The court would have significantly increased its credibility if they had cleaned the nooses off and then hanged Curtis Le May, George Patton, and “Bomber” Harris.
The descriptions of the courtroom arguments are riveting, and it sounds like Hermann Goering, who had been withdrawn from his mind-fogging opiates, ran rings around the court for a while. He was (naturally) a moral nihilist, which gave him the positional flexibility to see the courts’ arguments for the bullshit that they were. From the account in the audiobook, it sounds like he was finally beaten on details – i.e.: nitpicked into looking like a liar, by being tripped up over and over in false testimony. Goering was not nihilist enough to claim that “the whole period is a blur to me, because I was high on morphine most of the war.” And Rudolph Hess sounds like he was losing his mind/disassociating pretty badly – yet he was deemed mentally competent to stand trial, on the sketchy basis that Hess was suffering only from forgetfulness and still understood the proceedings and process that were going on. I’m sure the Russians were saying, “… should have just shot him” sotto voce. The account of the psychological impact of this stuff on the lead prosecutor is painful to read. He was unable to break Goering and took it very personally. The next prosecutor up, David Maxwell Fyfe, was an expert at trapping people in cross-examination, and he simply demolished the witnesses by tripping them up with their own lies. “Let me jog your memory, then, sir – here are the meeting’s minutes signed and dated by you…” Apparently he had a vicious strategy, in which he would present a less damning piece of evidence at the start, and if the defendant challenged the less damning evidence, he would drag out successively worse and worse, until the defendant got the point and fell silent. His aim was to make the nazis fall apart, psychologically, on the stand for the world to see, and he did it. Shooting them would have been kinder.
Some of the descriptions in the book are simply amazing; they are very perceptive. Unfortunately, there’s a lot of courtroom drama to wade through to get at them: [Chapter 13, @44:44]
What Keitel was actually saying was that he saw himself as a piece of office equipment, proud to be used by others. He did not present himself as a dignified human being with a mind and a moral sense, but as an efficient, hard-working, constantly available versatile instrument.
Keitel’s examination in chief lasted tow and a half days. It amounted to variations on a few simple themes. One, the theme for the armed forces ran: “that was a political decision.” Keitel saw policy as divided into water-tight compartments. As he told the story, politicians decided to invade Czechoslovakia, soldiers drew up the invasion plans. Politicians decided on aggression towards neutral countries, because that was a foreign policy matter, and soldiers then attacked them. Politicians decided to launch wars without warning or ultimatum, and soldiers fought them. He was painting a picture of magnificent military obedience, admirable soldierly efficiency. He was simply missing the vital details that soldiers, too, are bound by international and moral law. But Keitel’s conception of a soldier made this omission logical. He revealingly called the armed forces, “A tool of the politicians” – for him, a term of praise, which by definition excluded any legal or moral obligations on the part of the military.
I can’t get the image of Colin Powell testifying at the UN out of my mind as I read that. Powell later said that he suspected the information was bad, but he had to go forward with the presentation because it was his job. Admirable soldierly efficiency, indeed. Tu Quoque, indeed.
Remember, the 11 nazis who were hanged, were ostensibly found guilty of committing the crime of “offensive war” – a crime that has no meaning at all if the US didn’t also commit it in Vietnam, Grenada, Syria, Iraq, Libya, and Afghanistan (not in any particular order) Like Bush, Hitler and his cronies were careful-ish to create “causus belli” – justifications – before invading Poland and Czechoslovakia; special forces units creating trouble on the border and shooting people Hitler wanted shot, anyway (public radio stations, that kind of thing) then blaming it on anti-German separatists Antifa. Bush’s followers concocted some barely plausible stories of weapons of mass destruction, which should have been dismissed out of hand seeing as how they were coming from the nation that has the greatest expertise of all in building and collecting weapons of mass destruction, to say nothing of using them in every war since WWII. Do you see what I did there? I did not lay a charge of “Tu Quoque” so much as criminal hypocrisy: when the person charging you is the biggest criminal in that domain, it’s not unreasonable to ask them to disempanel the court because their conflict of interest is absolute. “The US has been in violation of its own Non-proliferation Treaty since the treaty was inked” ought to disqualify it from criticizing anyone about WMD proliferation. The Iranians, and North Koreans have mostly been wise enough to realize that it doesn’t matter what the US says – they’re just doing nuclear blackmail. After all, that’s what the nukes are for.
See the digression? It’s impossible to study the Nuremberg trial without seeing in it a dulled reflection of the hypocrisy that the British, US, and Russians have always engaged in. It’s painful to watch the court claim that the Molotov-Ribbentrop pact that divided up Poland was not admissable evidence because something mumble mumble it’s the Germans we are trying for “offensive warfare” not the Russians. And, besides, we should have just let them shoot you.
Thucydides could have written it better, and briefer. But, if you like courtroom drama, this stuff can’t be beat. If you’re a cynic who wishes to feel justified in disbelieving all politics, it will serve you as well. If you’re a nihilist, there are no surprises here, before or after.
Vae Victis.
[Moral Nihilism takes various forms, but it’s characterized by skepticism about the idea that moral and ethical systems can be consistent and meaningful beyond simple application of power. It has always seemed pretty obvious, to me, that they are not, and well-meaning philosophers’ attempts to ground morality on a solid argument – i.e.: non-religious – seem doomed to failure. The nazis at Nuremberg were, whether knowing it or not, also moral nihilists. One salient characteristic of their psychology was that they twisted their own philosophies in order to encompass the nasty things they did, feeling fully justified. Moral nihilism can cut in multiple directions; I might feel that everyone else I am dealing with may have morals and ethics, but they are merely opinion. Some of those opinions may be worthy of respect, but only because I agree with them. And my own morals and ethics are, likewise, a matter of opinion. So, while I hold my own opinions about what is right and wrong, I don’t expect others to share them, because they probably don’t. I condition myself to expect to be surprised, and to assume in general that certain careers attract moral nihilists – most notably politics and policing – which are the same thing in a way, and not to expect anything from them but self-interest and alignment with power.]
There were several thousand miles of movie film shot, and millions of pages of documents. The audio recordings are all on the internet if you wish to hear them. It’s overwhelming.
Watching Jackson (the American prosecutor) challenging a nazi for “suppressing opposition parties” made me throw up in my mouth a little.
With regard to moral nihilism, I disagree because I believe there is a very obvious way to bridge the is/ought gap: neuroscience. Moral universals exist across all humankind, and we can find their evolutionary antecedents in our close cousins among the great apes.
This is how you can have objective morals without having them grounded in something like divine command theory (which, if you think about it, is not only not objective but as subjective as possible): morality is an emergent phenomenon, the natural result of social, intelligent, cooperative animals in an environment like ours.
Marissa van Eck@#1:
Morality and ethics concern themselves with what is right or wrong. Merely observing that we have instincts embedded in us doesn’t get us all the way there. In fact we might have instincts to retaliate violently or attack strangers – that does not make them right, just evolutionarily convenient. An appeal to instinct results in moral systems that are solipsistic – whatever works for me, systems that ought to be considered immoral (using moral language for brevity)
@1&2: You’re both trying to do the impossible, and assign absolute definitions ([blah] objective because biology, [blah] bad because there is a way it can be bad) to concepts (e.g. morality, ethical behaviour) that do not and cannot admit rigid and rigorous defitions. Such things are at best continua (at worse even more complicated), gray areas by their very nature; any attempt to impose rigid boxes or absolute categories is a mistake.
Homework exercise: are there any people mentioned in this blog post who made this mistake leading to very bad things? Can you identify which people and what bad things?
You’re both trying to do the impossible, and assign absolute definitions
How do you get me trying to assign definitions out of my rejecting definitions? (“A matter of opinion”) Rejecting moral definitions is eminently possible and I argue it is the only honest way to deal with the issue.
Ketil, you’re correct about #1, but wrong about #2.
Not necessarily. Old “Thick-sides” had his problems too.
I was unclear, let me apologise for that. I meant to criticise Marcus’s absolute arguments in the main post, not the comment at #2.
Marissa van Eck @ #1: I would be deeply troubled of ethics founded in what stimulates or excites the average person while shown images in an fMRI scanner. A good part of my own brain is an asshole; luckily, the more socialized bits stay in control. Really terrible idea. Not only because of that, but also for the same reason machine learning is problematic when applied to social aspects (there was an example not long ago about AI assisting judges in decisions related to bail): it maintains and reinforces the same old biases and injustice.
This will be roundabout, but I think I can finally *really* put up good opposition to your moral nihilism, Marcus.
First, let’s play out how I, a not-moral-nihilist, would do the trials:
Honestly, I would have changed the entire setup of the nuremberg trials – changing from a focus of “war of aggression” to “crimes against humanity”, and making the scope “for anyone not part of an internal justice of change system respected by the victors”. Being able to acknowledge that other unpleasant things happened outside what the court deals with will be important later.
In a world where its just all horrific murder all the time, I’ll try to have a few well-selected rules and use them to put forward relatively politically powerful ideas to limit the appetite for more war crimes in people I can’t control. (eg. the soviet union, the western allies, all neutral countries, all people who live in the future), all the while being politically just as palatable for all victor parties in WW2 as the original trials were.
Yeah, I should probably point out that this whole thing will be more about limiting the amount of horrors and positioning things so people can reduce them further rather than “not being hypocritical”. I don’t do this all-or-nothing stuff where either there are rules that apply equal consequences to all people or nothing matters. Fires are fought a section at a time, and at the end of WW2 so were crimes against humanity.
For starters. the russian solution is actually what you want for the top nazis – the establishment of the new order requires them to be guilty anyway, which they were, so fuck ’em. Speaking of order, there’s not a lot to be found in WWII, so pick something accessible and slogan-istic like “Hitler, Himmler, Goebbels have to die because they picked out a lot of civilians to be killed. Everyone else, so long as you don’t aim your weapons at civilians or POW’s, you can go from a nazi back to just a german when you decide you’re done fighting.”
(Note: There is another crime I’d put on equal billing, especially important when men with guns interact with situationally powerless women, but let’s not go there today)
I’m going to have to deal with area bombing and various allied war crimes with methods other than this court, so exclude them with “these courts are for those not being dealt with internally in our nation as criminals” and “Area bombing et cetera will be dealt with as policy issues not legal means”. Nothing much will happen to the majority of allied bad-thing-doers but you’ve laid down tools many people can use to attack various sources of awful.
Now we’ve picked our targets and resourced our fights appropriately, we’ve got the ability to try nazis for actions that were legal inside their nation’s laws, a standard for working out if they were guilty of crimes or just a soldier who fought like any other, something not open to the defense of “well you did it”, and best of all a standard that will likely be generally accepted as likely to be imposed by victors in the future.
What’s that? I’ve not payed attention to the allies’ war crimes and only the german ones? How hypocritical of me!
Yep! If your concepts of morality and justice are based on giving different people the same consequences.
But, what I’m doing here isn’t about declaring things to be bad or providing equal punishment, or even punishment at all – I want to live in a world with less horrors, and I’m laying down the tools to remove each one piece-by-piece as effectively as possible.
Moral nihilism keeps acting like morality is this spirit stuff that everyone else takes on faith as being there but actually isn’t. From my point of view, morality a tool we use to understand and assess decisions and situations by comparing them to masses of other loosely associated decisions and situations.
Human suffering is real and a problem (one of many), and ideas of morality and ethics are good at drawing lines around groups of stuff and constructing baskets to put things in, baskets with standard plays on how to defeat and declaw them.
Your standard response is that the position of these lines is “just like, your opinion man”, and it’s true that I don’t have more than an opinion when it comes to where the lines should be drawn, no objective classification of things into good or bad, but I’m not after them either, they genuinely don’t interest me. I don’t care about similarities between Powell’s ideas and Keitel’s ideas, I need to know how to stop each of them and their associated horrors, and comparisons between the two are only useful because they are two examples of “how people try to acquit themselves via lawfulness” that I might be able to use when encountering a third.
In other words, taking a hellhole mess like WW2, what I’m trying to do is look at some of the centers of massively repeated awfulness and then reducing them according to what causes each.
And that’s why moral nihilism is clever but wrong – it uses a setup that classification, consistency and laws and fundamental and important things rather than useful tools. Hate to double-nihilism you, but the idea that *morality* should work like that is just, like, your opinion dude.
Physics metaphor: Interstellar gas has big clumpy bits but no real surfaces, same with electron distribution around complex molecules. Exact boundaries are a *worse* tool for targeting the high-density stuff than vague boundaries are.
I’m not settling for vague boundaries, I actively preference them.
It’s not that boundaries are inconsistent, it’s that consistency is wrong.
P.S. Yes, I know I’m arguing against consistency itself to a lifelong computer security programmer. Fun!
aquietvoice,
Wow. You seemingly don’t get the concept.
Basically, morality is a convenient fiction.
@ John Morales, #10:
No worries, I rather do get the concept though I can certainly accept I’m not communicating it well or didn’t manage to get it across.
My point was that morality – used correctly – is real. (and that therefore moral nihilism was wrong)
More than that, morality that has exactness and consistency is a convenient fiction, but constructed more vaguely it has genuine realness as an operable descriptor of reality – as much as anything is real anyway.
Not real like a neutron is real, real like a human is real.You can technically argue that ‘human’ is a convenient fiction, and be technically correct – but that doesn’t make humans fictional.
Same deal with morality.
In fact – you’d argue that ‘human’ is a convenient fiction in much the same way – showing that the boundaries of what is a human aren’t exact or consistent. It’s very clever if you ask questions about the surface of a human stopping at which atom, when does a dying or decomposing human stop being one, when does dissolved oxygen become part of the human, et cetera. Still doesn’t make humans fictional!
aquietvoice, I like your thinking.
Thing is, by your own argument, moral nihilism is no less real than morality. ;)
@ John Morales, #12:
Ha! Yes, it does get that way a bit. Sometimes I can’t tell if we’re getting recursive, circular, or both. Good fun though, and pretty useful….. eventually!
As for your actual point, I’m practical enough to consider moral nihilism real for the purposes of approaching specific problems and tasks in ethical thinking, but not real enough to be widely applicable or useful.
At this point maybe I should just declare that moral nihilism is real on tuesdays, thursdays, and every other weekend. :P
aquietvoice @9
that just seems like a long winded way of saying “we’re right because we have the bigger guns”.
which kind of makes the whole court thingy a bit of a farce. just shoot them.
if you’re not going to work with the social norm that crimes apply to everyone just admit that and get on with it. don’t try and construct a concept of crimes against humanity of which you are also guilty.
at some point all questions of other’s behaviour reduce to who is willing to stab who over it. the whole edifice of universal rights, equal rule of all, morality, ect is just an attempt to convince people to act in particular ways without resorting to stabbing. once you start ignoring these social constructs just admit it. otherwise you just look like a hypocrite.
back to the post: why doesn’t the USA’s involvement in the war in Europe count as an offensive war?
@Dangerousbeans, #14:
Nope! It’s exactly the opposite of “we’re right because we have bigger guns”.
In the ideas I set out, right and wrong are separate from who has the bigger guns entirely – but by becoming a hypocrite and a not-consistent person and all that stuff I work to become the most effective moral agent I can be rather than the most exact or the most logical.
The idea of crimes, courts and recourse via law doesn’t work that well for a lot of the things humans do and a lot of the situations humans face. In my setup, we manage to reduce or remove a bunch of big problems in different ways by looking at each of those problems *are* and dealing with the underling moral reality rather than by declaring Master Categories That All Must Follow.
I straightforwardly admit that in the aftermath of WW2 crimes did not apply to everyone, and that even today using law and crime methods aren’t useful for a lot of problems, not as a matter of circumstance but fundamentally because the ideas of logical exactness used in law are terrible for a lot of problems. I’m still going to construct a concept of the value of humans that I can use against each separate circumstance, rather than making it about crimes and the law per se.
“equal rule of all, morality, ect is just an attempt to convince people to act in particular ways without resorting to stabbing. once you start ignoring these social constructs just admit it”
Get ye gone, moral nihilist! I care about a lot of stuff, humans in particular, and I’d rather be a ‘hypocrite’ for not using logic and law as master rules than someone who can’t effectively approach and diminish human suffering. Being able to deal with groups of horrors means a lot more to me than being consistent in punishing or declaring right or wrong or whatever. Vague lines are literally better descriptors of reality than exact ones.
Again and again it comes down to this – you can show that there are no ‘real’ lines that properly distinguish who is Right and Wrong. You can do it very cleverly. But the reality of masses of linked human suffering remain, and only by solving and removing them do we do good. This is why I’m so blase about low punishments or whatever – declaring someone ‘guilty’ does not bring the dead back to life or un-punch people. I need to live in a world where people aren’t murdered or punched, and if I have to go through each of the main causes of those one-by-one and solve each of them, so be it. If those solutions are different each time, jump up and down and call me a hypocrite but I never subscribed to the value of super-consistency or even law-and-punishment in the first place.
And just to re-iterate: my actions and approaches change by the situation, but not once did I use “bigger guns means more right”. In fact, the whole nuremberg setup I used was specifically because the people setting up the court didn’t have guns as big as any of the main government factions, but that they could use what they had to deal with a lot of horrible problems and give others the tools to do the same.
From aquietvoice in number 6:
“making the scope “for anyone not part of an internal justice of change system respected by the victors””
“so exclude them with “these courts are for those not being dealt with internally in our nation as criminals””
but the internal justice system respected by the victors doesn’t give a shit about the actions of the victors. much the same as the German justice system didn’t give a shit about what the Germans did. so you’ve set up different standards based off who had the most military power.
I’ll agree that the Nuremberg trial was better than nothing, but that doesn’t get them out of criticism for their hypocrisy. I’m also weary of extreme moral pragmatism, ‘the ends justify the means’ has been used to cover a lot of sins
“so you’ve set up different standards based off who had the most military power.”
Nope! I’ve set up different approaches, not different standards.
The inability of court officials to put Stalin on trial doesn’t make him any less a monster. Soviets aren’t an evil monolith. Push where you can and take what you can get.
“the internal justice system respected by the victors doesn’t give a shit about the actions of the victors”
Actually, it really does. Not consistently or exactly, not in a way that metes out ‘appropriate’ punishments or whatever. But it does. This is exactly why moral nihilism rubs me the wrong way. The inability to put bomber command in jail isn’t the same as the inability to stop bomber command from changing the way it thought and conducted itself. Have you ever read or listened to the after-war analysis of people running area bombing? A lot of people realised it sucked. A lot of good changes were made via policy.
Better than just passively waiting for crimes and then declaring someone ‘responsible’ and jailing them like that would fix it.
My justification for doing this stuff isn’t that it is some heinous means for some idealised end; it’s that these actions are good in it of themselves. Better than controlling it via law.
This legalistic sense of morality used in moral nihilism, and moral nihilism itself, need to die.
Hypocrisy is no criticism when the standards used are imaginary.
I deal with different problems in different ways. I don’t need or even want to be ‘consistent’ in my solutions when that means cloning stupid non-solutions that happen to work one time for very specific reasons.
In short, moral nihilism relies on a seriously flawed understanding of what is real.
Moral truth is real.
Better than just passively waiting for crimes and then declaring someone ‘responsible’ and jailing them like that would fix it.
@sumonmsh, #18:
That’s what I said, and believe, yes. 100%
Obviously not applicable to the nazis, but very applicable to area bombing policy after the war – which is why I took two different approaches to deal with the same moral truth in two different situations.