In “Opening Address for the U.S., Nuremberg Trials,” Robert H. Jackson, chief prosecutor for the United States at the Nuremberg Trials, argues for the validity of the trials based on a concept of justice predicated upon an assertion of an absolute right and wrong. Conversely, U.S. federal judge, Charles E. Wyzanski, Jr. in “Nuremberg: A Fair Trial?,” argues against the trials based on a concept of justice predicated upon an assertion that, despite the immoral acts committed by the defendants, the trials did not cohere with established legal principles, such as ex post facto principles. For this paper, I will argue both jurists base their arguments on the concept of justice, but Jackson bases his conception of justice on natural law theory while Wyzanski bases his conception of justice more on legal positivism. Ultimately, I will argue natural law theory seems to pose problems for ex post facto principles, but legal positivism doesn’t seem to adequately address how innovative yet harmful actions should be addressed. Therefore, both concepts of justice would seem to lead to injustice.
Ex post facto laws are explicitly prohibited in Article I, Section 9 of the U.S. Constitution. Wyzanski explains ex post facto laws are illegitimate because they charge an individual with a crime before there was a law against the crime, which makes the rule of the authority arbitrary (31). If the government can make any action illegal and punishable after the fact, then the citizens have no standard to base the legality of action upon.
In his opening address, Jackson argues against the claims that the charges against the defendants were illegitimate ex post facto laws. Jackson argues Germany participated in international conventions which “prescribed certain restraints as to the treatment of belligerents” and “certain immunities for civilian populations” occupied by a foreign army (25-26). He argues it is not true the Charter was “new law, not authoritatively declared at the time” the acts were committed and unknown to the defendants (26). He argues the Charter created for the trials was based on such international conventions (26). He offers written and oral statements of Nazi officials demonstrating recognition of international agreements and laws, but explicitly instructing subordinates to not follow them (26). Jackson argues “That men may be protected in relying upon the law at the time they act is the reason we find laws of retrospective operation unjust” (26-27). He states “But these men cannot bring themselves within the reason of the rule which in some systems of jurisprudence prohibit ex post facto laws” (27). Jackson argues the defendants, by authorizing disobedience to the laws, knew the laws existed (27). Additionally, the defendants were shown to have consistently disregarded laws they deemed were contrary to their needs (27).
Regarding morality, Jackson argues the trials were valid based on actions being absolutely right or wrong. Jackson argues “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being repeated” (23). Jackson explains the defendants’ guilt should not be based on the “mere technical or incidental transgression of international conventions” but instead on “planned and intended conduct that involves moral as well as legal wrong” (25). Regarding the First and Second Counts, Jackson asserts it was “intolerable” there was a time in which “war-inciting” was not considered a crime, despite how reprehensibly immoral it was (27). He states, “Plain people, with their earthly common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunity” (27). Jackson asserts there are actions which are morally reprehensible and unethical, and such actions are intrinsically against the law. Law, it seems for Jackson, depends on morality and extreme moral wrongs should be punishable as legal wrongs.
Wyzanski argues the trials did violate ex post facto principles. He quotes the Fourth Count as stating the wrongs of the defendants “constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations” (30). Wyzanski asserts at the time there were no such international conventions that explicitly forbade “a state or its inhabitants [from] murder[ing] its own citizens, in time either of war or of peace,” therefore, the charge would violate ex post facto principles (30). Even, he argues, if the charge meant a new legal body could be created to prosecute the most immoral actions committed based on “a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places,” then it would still conflict with ex post facto principles (30). However, Wyzanski states, the saving of the charge rests in the addition of “internal penal laws” (31). He states even if a defendant argued they were acting under superior orders in killing citizens, and there existed a German law which excused the defendant’s guilt based on superior orders, “the superior order could be disregarded by a court applying German law, on the ground that it was so repugnant to ‘natural law’ as to be void” (31). Per Wyzanski, two parts of the charge would violate ex post fact principles, while one would be admissible if the law could fall under an “internal penal code” of “natural law.”
However, Wyzanski argues the Second Count does violate ex post facto principles. He quotes the charge as stating “the defendants participated ‘in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances” (31). He argues, despite references made to international declarations, “the body of growing custom to which reference is made is custom directed at sovereign states, not at individuals” (31). Per Wyzanksi, no international declaration explicitly forbade individuals from aiding in “waging an aggressive war” (31). Therefore, the charge against individuals aiding in waging an aggressive war would be an ex post facto law (31).
Wyzanski asserts the actions of the defendants were morally “repugnant” (30). However, Wyzanski quotes a English politician, Lord Digby, as stating “There is in Parliament a double Power of Life and Death by Bill, a Judicial Power, and a legislative” and “the measure of the one, is what is legally just; of the other, what is Prudentially and Politickly fit for the good and preservation of the whole” (34). With this quote, Wyzanski establishes the recognition of two functions of the government; one is the pursuance of legal justice and the other is the pursuance of what is moral and ethical for the society. Wyzanski continues the quote, “But these two, under favour, are not to be confounded in Judgment: we must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness with a pretense of Legal Justice” (34). Wyzanski, through use of this quote, is asserting a government should not mix matters of legality with matters of morality. The reason Wyzanski offers is because “procedural safeguards” ensure liberty, therefore, legal procedures should be adhered to regardless of how immoral an action is (34). Wyzanski’s argument that the rule of law requires adherence to legal principles, despite the immorality of the actions committed, is clearly opposed to Jackson’s view.
Jackson’s arguments seem to fit with natural law theory, as asserted by St. Thomas Aquinas. Aquinas, based on Aristotle, asserts the purpose of law is to achieve eudaemonia (82). Therefore, just legal matters are those “which are adapted to produce and preserve happiness and its parts for the body politic” (82). He states, “Law is nothing else than an ordinance of reason for the common good, promulgated by him who has care of the community” (82). Per Aquinas, God has made natural law, i.e. morality, known to humans by instilling it in humans’ minds (82). Aquinas states “every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the natural appetite in respect of the last end” (83). The last end for humans is eudaemonia and humans use their reason to achieve eudaemonia. Therefore, Aquinas asserts, “the first direction of our acts to their end must…be through the natural law” (83). Humans need to use natural law to achieve eudaemonia and as such, human laws are just only if they cohere with natural law. Quoting Augustine, Aquinas asserts, “that which is not just seems to be no law at all” (83).
Wyzanski’s arguments seem to fit more with John Austin’s legal positivism which draws a distinction between morality and law. Austin distinguishes between “laws set by God to” humans and “laws set by men to men” (64). He argues laws of God are moral dictates on action and laws of humans are social and legal dictates on action (64-67). He states “The existence of law is one thing; its merit or demerit is another” (67). Austin refers to Sir William Blackstone as stating God’s laws take priority over other laws for humans to follow; human laws must not contradict Gods laws; human laws are invalid if they contradict God’s laws; laws have validity when they are derived from the laws of God (68). Austin argues there is a difference between “ought” and “is” in this case. He states if the claim is laws “ought” to follow Blackstone’s criteria, then he agrees (68). However, if the claim is “no human law which conflicts with the Divine law is a law,” then he disagrees (68). Austin claims laws are legally binding regardless of if they cohere with morality. For legal positivists, like Austin, law and morality should be separated because “the laws of God are not always certain” and society requires obedience to laws, or else it would fall into anarchy (68).
Jackson’s arguments rely on natural law theory while Wyzanski’s rely more on legal positivism. Jackson and Aquinas speak of the intrinsic morality of law. They speak of law requiring adherence to morality. Laws which are contrary to morality are illegitimate. Immoral actions require punishment under the law. An immoral action protected by law is not justice. Morality is law. Law is necessarily moral and justice is adherence to morality.
Conversely, Wyzanski and Austin speak of law and morality as necessarily separate. They argue there is a difference between the morality of an action and the legality of the action. Something very well may be immoral, but this does not make it necessarily illegal. Law is a specific, proscribed, set of commands and punishments. Therefore, if a particular action, regardless of how immoral it may be, is not specifically proscribed as a command, then it is not a punishable offence under the law. Law is law and morality is morality. The two may intermingle but they are and should be differentiated. To not differentiate the two would lead to, on one extreme, infringement on individual liberties, and on the other extreme, anarchy. Justice is adherence to the procedures of law.
The two different ideologies pose different problems for the legal system. Natural law theory would pose problems for ex post fact principles. If human law is ultimately answerable to God’s law, then morality is ultimately the highest legally binding authority. Guilt of actions would be determined by resorting to morality and not to stated legal statutes or codes. Also, God’s moral dictates are not always clear. Nor are God’s moral dictates universal in a society that values freedom of religion. Punishing people based on morality, or based on laws after the fact could lead to infringement on liberty. However, legal positivism would pose a problem for punishing individuals, who are not under the jurisdiction of military tribunals, and who commit harmful acts against society. The glaring immorality of certain types of harmful acts can serve as a precedent. If morality and law are completely separated, then those who commit innovative yet harmful acts could not be punished under the law. The justice system would have to let the morally reprehensible offender go, and then create the law. The person could be tried under a military tribunal, and then a law could be created in the civilian justice system against the act. However, the consequence of such a thing could be a separate military system prosecuting civilians for acts which, while harmful, are not under military jurisdiction. Also, punishing those who could fall under a military tribunal instead of a court of law, such as heads of state, could make the punishment for their actions seem merely like a consequence of losing a war, which would take away from the seriousness of their actions. Legal positivism may adhere to ex post facto principles, but in doing so could allow for harmful acts to go unpunished or for an unacceptable judicial arrangement to prosecute such acts.
Jackson argued the Nuremberg trials would best serve justice based on a conception of justice involving the natural law theory. Wyzanski argued not having the trials would best serve justice based on a conception of justice involving legal positivism. Under natural law theory, ex post facto principles could be violated, leading to infringement on liberty. However, while legal positivism preserves ex post facto principles, it could allow harmful acts to go unpunished or allow for an unacceptable alternate system of justice. It seems either option could lead to an injustice.
Aquinas, St. Thomas. “What is Law? From Summa Theologiae.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 82-83. Print.
Austin, John. “Legal Positivism.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 64-69. Print.
Jackson, Robert H. “Opening Address for the U.S., Nuremberg Trials.” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 23-28. Print.
Wyzanski, Jr., Charles E. “Nuremberg: A Fair Trial?” Adams, David M. Philosophical Problems in the Law. Boston: Wadsworth Cengage Learning, 2012. 29-34. Print.