Tuesday, April 19, 2005

BBC NEWS | Europe | 'Dirty war' officer found guilty

In my first two lessons of Introduction to Legal Theory, we got the chance to watch "The Nuremburg Trials", in particular, this movie focus solely on the prosecution of judges who upheld the Nazi-era laws (presumably amongst others).

What the show was meant to portray was the tension between on the one hand, Positivism and on the other Natural Law as well as other camps like Realist and Critical Legal Scholars.

The main issue was perhaps simply: Should judges charged with the duty of upholding the laws of their nation (properly and rightfully enacted ones at that) be in turn charged with the upholding of those laws?

What Positivism holds is that what the law IS does not equate to what the law OUGHT to be i.e. the Separation Thesis (One should not confuse Law and Morality, note the capital M, I'm refering to it in the general abstract form). By that standard, one cannot begrudge these judges from doing their job and IF one wishes to charge them, Hart suggests being honest and using retroactive laws instead of fuzzily skating over ice like the Natural Lawyers do.

What Natural Lawyers argue is that there is a necessary nexus between law and Morality. As such Lex Injusta no est Lex (an unjust law is not law), of course this being subject to disobedience not causing greater outrage and anarchy than following mildly unjust laws. As such, the Nuremburg Laws are an affront to Natural Law, evil and henious and hence by upholding them, the judges condemn themselves.

Aside: A particular scene stuck in my mind, that was where the prosecutor was talking about the forced sterilisation of the mentally incompetant and the defence lawyer came back quoting from Justice Holmes who supported the idea.

So no doubt by now, you should be able to see where accusations of Victors' Trials enter the scene. Especially when one considers the fact that a holocaust, albeit on a smaller scale, was done by Stalin.

This begs two questions:
1. Could the judges resign? Who knows, this was the era of cloak and shadows, where people disappear at night never to be seen again.
2. If so should they? Assuming that you were a moral judge, would it not be better to remain in your seat and attempt to mitigate the injustice rather than resign and allow some 'party hack' to take over?

Anyway, transpose it to today and particular the question of Chain of Command and the fact that 'I followed Orders' is no longer a defence. What are you, when faced with an appalling order supposed to do? To reject it would mean a summary court martial and an execution. To reject it would also mean you are not being a soldier (I think one thing that being in NS taught me was the importance of the chain of command). But to accept the orders would be to jepodise your soul (or whatever equilavant) as well as opening yourself up to a trial should your side lose.

So what is a good soldier suppose to do?


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