Monthly Archives: September 2012

A Brief Statement of the Irony of Early Christian History

Juan Bernal

2010   1/20

It is difficult to overstate this fact: The Christianity that we know today results from the Gentiles’ transformation of what was probably the message of a Jewish Sage from Galilee.  In fact, the Hellenized version of “Jesus” was first developed by Paul of Tarsus and John (of the Fourth Gospel).  This Hellenized philosophy has little or nothing to do with teachings of the person known as Yeshu or Yeshua, the flesh-and-blood person who is likely the basis for the Gospel Jesus, which develops the image of Jesus promoted by the evangelists, who were not the immediate followers of Yeshua.

 

When we try to get to facts concerning Yeshua from Galilee we have to dig through numerous layers of doctrine and popular myth.  Even for the critically-minded, educated historian-scholar, the flesh-and-blood person who walked the hills of Galilee and Judea is lost in the fog of subsequent doctrine, events and political drama (e.g., the need of the early Christians to distance themselves from the Jews and gain the sympathy of the Romans).

 

1/24   Historical Ironies:

Paul’s missionary  work and his teachings were a major factor in the early development of Christian doctrine; yet Paul’s teachings had little to do with the message of Yeshua, the Galilean teaching.

Early in the fourth century AD, the Roman emperor Constantine was primarily responsible for the fact that Christianity became the major religion in the Roman Empire and eventually became a major world religion. Yet, Constantine was not by any measure a Christian man.

The teachings of a Jewish sage are transformed into a Hellenized, somewhat mystical philosophy and eventually Christian doctrine over the course of a few decades.  After a few centuries, the Christian doctrine becomes a Roman institution.

1/27

To say that the Roman Emperor Constantine experienced a religious conversion is to speak in a very misleading way. Did he embrace Christianity as his faith and philosophy of life?  Did he come to accept the teachings in the Gospels and accept the risen Christ as his savior?  Any cursory reading of the history and actions of Constantine, before and after his alleged ‘conversion’ will surely yield an emphatic negative answer to each of those questions.

Yet, Constantine was probably most responsible for the fact that Christianity went from being primarily a minority cult to becoming a religion of universal significance.

 

What we can learn from Tolstoy’s Morality Tale, “How much land does a man need?”

Juan Bernal

            Tolstoy’s short story –  “How much land does a man need?” — is a religious-morality tale which can be interpreted in a variety of ways,  but which seems primarily concerned with the destructive consequences of human ambition.  The story is about a man named Pahom – a peasant farmer —  who desires to acquire more land, acquires some land, but is not satisfied and needs to acquire more.  Eventually he over-reaches, forfeits all his accumulated wealth and causes his own death.  (*See below for a Summary of story).  The message to take from the story may be as simple as a warning against biting off more than you can chew, or we could say simply that the story shows how human nature pushes us to want more and more. We are never content with our lives, no matter how well off we may be; and , while trying to improve our standard of living, we put ourselves in danger of ending up with nothing.

But the story can be understood as presenting a message of greater complexity.

What Tolstoy gives us is a didactic tale, a story meant to teach a moral or religious lesson. His purpose likely was to show how greed and an excessive desire for earthly wealth can destroy a person.  Along with this, Tolstoy offers a lesson about the consequences of ignoring spiritual needs and the state of one’s soul, in favor of acquiring more and more material wealth.  In general, it is a story of what can happen when humans become too ambitious and greedy.  There are similar stories in myth, religious scripture, and secular literature.  For example, the story of King Midas and his “golden” touch.  In Genesis, the Tower of Babel is a brief account of how the excessive ambition of humans is struck down by God.

An important element in Tolstoy’s story is a boast by the farmer, Pahom, that if he had enough land he would not fear anyone, not even the Devil.  This is heard by the Devil who says to himself:

 “All right! We shall see about that. I’ll give you land enough; and by means of that land I will get you!”

The Devil then sets in motion the series of events that eventually end as Pahom forfeits everything including his life.

So we have a story in which Tolstoy teaches a lesson about humility and the need to fear and respect the Devil, or at least recognize the power he can exert over us.  For those who don’t believe in the Devil, the mythical character  can be seen as personifying those aspects of our nature which are destructive and can eventually lead to our complete demise.  This is probably how Tolstoy would have us read the story.

But there are different ways that we can interpret and react to the story. For example, w can take it in terms of its religious message, or in terms of a philosophical/ethical teaching, or maybe in terms of a teaching about social good.   Today, we can even see it as making a point about our ecological awareness; and we can read it in the context of our consumer-driven economic system.

Let’s take each of these in turn.

  • Religious aspect:  The story teaches that humans need to the state of their soul, rather than material wealth, with an eye to eternity rather than temporal, earthly reality.

A well-known passage from the Gospel expresses the sentiment:

Matthew 6.19: Do not lay up treasures on earth, where rust and moths consume, and where thieves break in and steal; but lay up for yourselves treasures in heaven, where neither rust nor moths consume, nor thieves break in and steal. For where the treasures are, there also will by thy heart.”

  • Philosophical/Ethical aspect:  We could read the story about the need for moderation in one’s life. In this light, consider Aristotle’s ethical teaching that reason aims at a mean between the extremes of  defect and  that of excess.  Pahom was never satisfied with what was enough land, and allowed his compulsion for more and more to ruin everything.  He sought ever more land and the sense of security and pleasure that would ensue, or so the thought.  He did not observe the recommendation from Epicurus that the pleasure worth having is that which is consistent with reason and moderation.  Here the question is one of asking whether the drive for personal wealth really benefits the individual is an detriment to true human fulfillment. We could also raise the question of moral justice and fairness.  How did Pahom’s drive for more land affect others?  Were their interests and needs respected?

When you own so much (stuff) that you lose track of all that you possess, you have passed the point of owning too much.  When you become so enslaved to acquiring more and holding on to what you have, you have lost sight of the real purpose of living.

  • Social aspect  -  Here we would ask how the ambitions of an individual to acquire great wealth affects the greater affected?  Does Pahom have any responsibility to the human community of which he is part? Or is it true that individual effort to improve one’s prospects is his only thing that should concern each person, and that others have to look out for themselves?
  • Ecological aspect  -  In today’s world, a world of overpopulation, dwindling natural resources, and the increasingly destructive affect that human activity has on the environment,  we can raise the question of how the drive to acquire more and more wealth by the many individual’s and groups of individual’s affects the natural environment of which we are all part.   In other words, we can point out that nobody acts in a vacuum, isolated from natural world.  What we do has significant effect on the quality of our environment (air, water, land).  We use up the earth’s resources and add to the waste that accumulates in our lands and oceans.  When our contemporary Pahoms work to accumulate more and more wealth, are the needs of the earth and environment respected?

Mike David, Op-Ed: Just as a virus’s only reason for existence is to expand, without regard or awareness of the effect of its expansion on its host body, our economic system pursues its infinite expansion without regard or awareness of its effect on human welfare or the environment. Though the earth is finite, it is sustainable, so we reject, in the words of Michael Nagler, “the inherent contradiction of an economy based on indefinitely increasing wants – instead of on human needs that the planet has ample resources to fulfill.”

  • Economic aspect   -   As a last set of considerations, we could ask about the propriety of our behavior (or seeking to enrich ourselves) in the context of the economic system. In a capitalist economy like exists in the US, people are seen as consumers.  As consumers we’re expected to buy things so that the economy can grow.  The more we buy, the better the state of economy.  So a wealthy person who buys expensive things would be good for the economy.   And, finally, in a capitalist system, people are inclined to think that a person has the right to whatever he earns or works to accumulate.  In other  words, if Pahom worked for his greater share of land and was willing to make the legal deals necessary to purchase his land, nobody had any business in stopping his from his purchases.  In short, Tolstoy’s story would fall on deaf ears.

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As an additional exercise, the reader might try different applications of the question,

How much X does a person (or person’s) need? 

In asking these questions, you might also distinguish between need, desire, and merit.  In short, how much is the mark of a wise person and how that of thoughtless acquisitiveness?

 

  • How much wealth does a person need?
  • How large a house does a person need?
  • How large a vehicle of transportation (viz., car) does a person need?
  • How powerful a military does a nation need?
  • How many nuclear warheads does a nation need?
  • How much wealth and power does a society need?  At what point does it become inconsistent with a good life for the citizens?
  • Do the requirements of economic expansion require that we consume ever more?
  • How many automobiles, highways, freeways ……?
  • How much population that the earth need?

Take great care in how you respond.  Remember, the Devil might be listening!

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* A brief summary of Tolstoy’s “How Much Land Does a Man Need?”

The main character is a man named Pahóm. At the beginning of the story, he is a peasant farmer, a man of humble means who lives a decent life.  But, after his sister-in-law has bragged that city folk have a much better life than country peasants, Pahom bemoans the fact that he does not own land. He states that “if I had plenty of land, I shouldn’t fear the Devil himself!” Little does he know that the Devil is sitting close by and listening.

The Devil says: “All right! We shall see about that. I’ll give you land enough; and by means of that land I will get you into my power.”

Shortly thereafter, Pahóm manages to buy some land from a lady in his village. He works hard, makes a profit and is able to pay off his debts and live a more comfortable life. But he is not satisfied and, after a peasant told him about the opportunity to own more land, he moves to a larger area of land.. Pahóm grows more crops and amasses a small fortune, but it is still not content.  Now another character tells him of another opportunity to own more land.

Pahóm hears (from a tradesman) about the Bashkirs, a simple people who own a huge amount of land deep in Central Asia. After a long trek, Pahóm meets the Bashkirs on the vast steppe. He is prepared to negotiate a price for as much land as possible, but before he can do so, the Bashkirs make him a very unusual offer, the same one that they make to anyone who wishes to buy land from them.

For one thousand rubles (a large sum in those days), Pahóm can buy as much land as he can walk around in one day. He has to start at daybreak and mark his route with a shovel at key points along the way. As long as he returns to the starting point before sunset, the land that he has marked off will be his. If he fails to return on time, the money is forfeited.

Pahóm is thrilled. He is certain that he can cover a great distance and that he will have more land than he could have ever imagined. That night, Pahóm has a foreboding dream in which he sees himself lying dead at the feet of the Devil (who changes appearances – peasant, tradesman, chief of the Baskirs), who is laughing.

The next day, with the Bashkirs watching from the starting point, Pahóm sets off at a good pace as soon as the sun crests the horizon. He covers a lot of ground, marking his way as he goes. At various points he begins to think that he should change direction and work his way back, but he is constantly tempted by the thought of adding just a bit more land. The day wears on and, as the sun begins to set, Pahóm discovers that he is still far from the starting point. Realizing that he has been too greedy and taken too much land, he runs back as fast as he can to where the Bashkirs are waiting. He arrives at the starting point in the nick of time just before the sun sets. However, as the Bashkirs cheer his good fortune, Pahóm drops dead from exhaustion.

Tolstoy concludes: “The Bashkirs clicked their tongues to show their pity. His servant picked up the spade and dug a grave long enough for Pahóm to lie in, and buried him in it. Six feet from his head to his heels was all he needed.”

The story addresses the age-old question of how much wealth does a person need. How much is enough? In this story, all that was required was a plot large enough in which to bury the man who wanted too much.

US Citizenship and a History of Racial Discrimination

by Juan Bernal

In August 2012 just before the Republican Convention Mitt Romney, campaigning in his home state of Michigan, remarked on how proud he was to be a native son of that great state and then made the off-hand remark that “nobody had to ask about his birth certificate.”  Romney apparently thinks that he gets credit for being born in the USA (actually an accident of fate, as he could have been born elsewhere, e.g. Bangladesh) and was obviously flirting with those great Americans known as the “birthers,” those people of average(?) intellect who don’t think that President Barack Obama is a citizen of the USA.

Yes, Romney is willing to cater to those people who make the completely preposterous charge that President Obama is not an American and the comical claims that his birth certificate is fraudulent.  Supposedly these people — the “birthers” — are convinced that Obama was not born in the USA, but born outside in some other part of the world (Kenya?).  I’m not sure whether these people also deny that Obama’s mother was a citizen, but if they don’t, then all suspicions as to place of his birth are irrelevant, since any child born to a US citizen is automatically a citizen regardless of the place of birth.  Or maybe that they don’t realize that any person born in Hawaii after 1900 is automatically a citizen.

Who knows what the birthers think?  Do they think that Hawaii is not part of the US?  Do they think that if the father is a non-citizen, the child is a non-citizen also? (At one time this was actually true.) I’m not sure they know what they think.

At any rate, all this nonsense about Obama’s citizenship set me thinking other things about US citizenship, the different ways in which people come to be citizens of this great country, and other facts about our country’s handling of issues regarding citizenship and naturalization, and the extent to which  racial and ethnic discrimination has affected the process. .

Different Paths to Citizenship

Given that most citizens were born in this country and had parents who were citizens, some people might mistakenly think that being native or born to US parents are the only paths to US citizenship.  But there are many ways in which people can become citizens.  So I listed some of them and made a few comments about some of these categories.

(Comments are footnoted at end preceded by the pound sign ‘#’.)

First the ones with which most people are familiar. People gain citizenship by:

  • Birth in USA to parents who are citizens.
  • Birth in USA to at least one parent who is a citizen.
  • Birth in USA and parents are not citizens.
  • Born of at least one parent who is citizen, regardless of place of birth.
  • Immigration to the USA and Naturalization as citizen.

Next, ones which most people don’t know too well:

  1. Africans who were brought here as slaves and made citizens when freed           (See #1 below.)
  1. Native Americans who choose to live outside a reservation and become citizens.(See #2 below.)
  1. Valuable aliens (e.g., German scientists & engineers, runway models!) brought to our country and given a quick path to citizenship.
  2.  Non-citizen military veterans who were given fast track to naturalization.
  3.  War-brides Act of 1945 allowed alien wives brought home by veterans to be    naturalized and led to the practice of naturalization by marriage.
  4.  Residents of territory that were purchased or claimed by the United States.   (See #3 and #4 below)

(See the unjust case of the act which rescinded Filipino US citizenship. )

  1.  Residents of territory which became part of USA as a result of defeat in war.  (See #5 below)
  1. Residents of territory that entered the union in the 19th and 20th centuries States.     (See #6 below)

Racial and Ethnic Considerations 

Although the USA has given entry to millions of immigrants and opened the doors to eventual naturalization, showing that US citizenship is a prize that many people rightly desire and value, some historical facts about conditions for US citizenship, Acts of Congress on citizenship, and quotas on immigration reflect the racism and ethnocentrism of the past.

Consider some of these:

The Constitution does not mandate race-neutral naturalization.

The Naturalization Act of 1795  set the initial parameters on naturalization: “free, White persons” who had been resident for five years or more.  (In effect, this barred the door to citizenship for the Native Americans who had been ‘residents’ for centuries.)

Until 1952, the Naturalization Acts written by Congress still allowed only white persons to become naturalized as citizens (except for two years in the 1870s which the Supreme Court declared to be a mistake).

The Naturalization Act of 1798, part of the Alien and Sedition Acts, was passed by the Federalists and extended the residency requirement from five to fourteen years. It specifically targeted Irish and French immigrants who were involved in Democratic-Republican Party politics. It was repealed in 1802.

A special Amendment to the Constitution, the Fourteenth Amendment (1868), was needed to grant citizenship to newly freed black people, all of whom had resided in the USA for many years.

The enabling legislation for the naturalization aspects of the Fourteenth Amendment was the Naturalization Act of 1870 , which allowed naturalization of “aliens of African nativity and to persons of African descent”, but is silent about other races.

Even after this event, many decades passed while the rights and privileges of citizenship were denied to blacks in most southern states, and even in some northern states.

Passage of the Fourteenth Amendment meant that, in theory, all persons born in the U.S., and subject to the jurisdiction thereof, are citizens regardless of race.

Citizenship by birth in the United States, however, was not initially granted to Asians until 1898, when the Supreme Court held that the Fourteenth Amendment did apply to Asians born in the United States in United States v. Wong Kim Ark.

The 1882 Chinese Exclusion Act  banned Chinese workers and specifically barred them from naturalization. The Immigration Act of 1917, (Barred Zone Act) extended those restrictions to almost all Asians.

The 1922 Cable Act  specified that women marrying aliens ineligible for naturalization lose their US citizenship. At the time, all Asians were ineligible for naturalization.

The Immigration Act of 1924  barred entry of all those ineligible for naturalization, which again meant non-Filipino Asians.

It took until 1924 for Congress to get around to passing the Indian Citizenship Act, which made citizens of all Native Americans, who were not already citizens, born in the United States.

Following the Spanish American War in 1898, Philippine  residents were classified as US nationals. But the 1934 Tydings-McDuffie Act, or Philippine Independence Act, reclassified Filipinos as aliens, and set a quota of 50 immigrants per year, and otherwise applying the Immigration Act of 1924 to them.

Asians were first permitted naturalization by the 1943 Magnuson Act, which repealed the Chinese Exclusion Act. India  and the Philippines were allowed 100 annual immigrants under the 1946 Filipino Naturalization Act.

The 1952 Immigration and Nationality Act (better known as the McCarran-Walter Act) lifted racial restrictions, but kept the quotas in place.

The Immigration Act of 1965 finally allowed Asians and all persons from all nations be given equal access to immigration and naturalization.  (It was about time that this happen!)

Closing Thoughts

Our government has unquestionably discriminated against people of color (Blacks, Latinos), Native Americans, and Asians with respect to immigration and qualification for naturalization.  These people have been denied entry altogether or forced to wait for decades to enjoy the same privileges that members of other more-desirable groups enjoy.  To give a stark contrast, while blacks were denied the full rights of citizenship for many decades, Native Americans ignored,  and Asian people simply blocked from entry,  the white southerners who betrayed the US and actively fought a war against the USA as soldiers of an alien state (the Confederate States) were immediately re-instated as full-fledged citizens of the USA following the end of the Civil War in 1865.

Talk about a stark, unjustifiable difference in the treatment of people!

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#1, African people forcibly brought to our great land to serve as slaves for those who could afford to buy slaves.  There wasn’t any question as to their status prior to the Emancipation Proclamation signed by Lincoln in the 1860s: they were property, not persons with right  to citizenship.  The Proclamation freed them from slavery, but the 14th Amendment was needed to give them status as citizens.

The Fourteenth Amendment to the Constitution was adopted July 9, 1868, as one of the Rconstruction Amendments.  Its Citizenship clause gives a broad definition of citizenship that overruled Dred Scott v. Sandford (1856) that had held that black people could not be citizens of the United States.

Section 1 reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

#2: Native Americans or members of the many native, ‘indian’cultures that had a long history in north America prior to the Europeans.  Would they be allowed entry into citizenship or not?  Prior to 1924 there were acts of Congress granting citizenship to specific groups (e.g. Cherokee, Choctaw); and later individual Native Americans could become naturalized, as if they were from a foreign country.

On June 2, 1924  President Calvin Coolidge signed the Indian Citizenship Act,  which made citizens of all Native Americans, who were not already citizens, born in the United States and its territories. Prior to passage of the act, nearly two-thirds of Native Americans were already U.S. citizens.

American Indians today in the U.S. have all the rights guaranteed in the Constitution, can vote in elections, and run for political office.

 #3 Citizens of a country that is appropriated as US territory.  Start with the Philippines:

Following the Spanish American War in 1898, Philippine residents were classified as US nationals. But

the 1934 Tydings-McDuffie Act, or Philippine Independence Act, reclassified Filipinos as aliens, and set a quota of 50 immigrants per year, otherwise applying the Immigation Act of 1924 to them. The quotas did not apply to Filipinos who served in the US Navy.

#4 Other examples of US Congress manipulation of citizenship conditions:

All persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President Truman on June 27, 1952. Additionally, all persons born in Puerto Rico on or after January 13, 1941, ar native-born citizens of the United States. Note that because of when the law was passed, for some, the native-born status was retroactive.

All persons born in the U.S. Virgin Islands on or after February 25, 1927, are native-born citizens of the United States.  All the persons and their children born in the U.S. Virgin Islands subsequent to January 17, 1917, and prior to February 25, 1927, are declared to be citizens of the United States as of February 25, 1927 if complied with the U.S. law dispositions.

All persons born in Alaska on or after June 2, 1924, are native-born citizens of the United States. Alaska was declared a US State  on January 3, 1959.

All persons born in Hawaii on or after April 30, 1900, are native-born citizens of the United States. Hawaii was declared a U.S. State on August 21, 1959.

All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the US, are declared citizens of the United States.

#5  Residents of territory which became part of USA as a result of defeat in war.  In the Mexican-American war of 1846, two examples would be residents of territories that later became California and New Mexico.  These former Mexican citizens who chose to remain in the conquered territory automatically became US residents and later, when the territory was admitted to the union, they automatically became US citizens.

#6  Residents of territory that entered the union in the 19th and 20th centuries.  One such example is New Mexico, which became a US territory when Mexico was defeated in the Mexican-American War of 1846.  The Treaty of Guadalupe Hidalgo, signed in 1848,  included Article VIII which guaranteed that Mexicans who remained more than one year in the ceded lands would automatically become full-fledged United States citizens (or they could declare their intention of remaining Mexican citizens); however, the Senate modified Article IX, changing the first paragraph and excluding the last two. Among the changes was that Mexican citizens would “be admitted at the proper time (to be judged of by the Congress of the United States).  The “proper time” was delayed until 1912 when New Mexico was finally admitted to the union.

[ My paternal grandparents, who were New Mexican residents in 1912, became citizens of the US as a result of New Mexico’s entry into the union. ]

 

A Strange Philosophical Objection to the Work of Simon Weisenthal

Juan Bernal

The Holocaust began with Hitler’s rise to power in January of 1933 and ended on VE Day (May 8, 1945). During this time, more than 6 million Jews and millions of other groups that caught the negative attention of Nazi Germany. While all the murders were devastating to native populations, none were so devastating than that of the Jews. During this period, 5,000 Jewish communities were wiped out and the total that died represented 1/3 of all Jewish people alive at that time.

 

The Nazi-hunting Simon Wiesenthal Centre said it has provided “new evidence” to authorities in Budapest on its most wanted suspect Laszlo Csatary, believed to be living in Hungary. The centre’s Efraim Zuroff, pictured in 2009, “last week submitted new evidence to the prosecutor in Budapest regarding crimes committed during World War II by its No 1 Most Wanted suspect Laszlo Csatary,” it said. (AFP Photo/Mark Ralston)The Nazi-hunting Simon Wiesenthal Centre confirmed Sunday that Laszlo Csatary, accused of complicity in the killings of 15,700 Jews, had been tracked down to the Hungarian capital.  (Press Release, July, 2012)

 The Setting for a Surprising Philosophical Objection:

It is cases like that of Laszlo Csatary, another pathetic example of a human being who likely actively participated in the Nazi wholesale torture and killing of innocent civilians (children, women, old men) during the Nazi period (1930-1945) in twentieth century Europe, that I had in mind some years ago when I praised the work of Simon Weisenthal.

Simon Wiesenthal, a survivor of the Nazi death camps, dedicated his life to documenting the crimes of the Holocaust and to hunting down the perpetrators still at large. “When history looks back,” Wiesenthal explained, “I want people to know the Nazis weren’t able to kill millions of people and get away with it.” His work stands as a reminder and a warning for future generations.

But my philosophy correspondent, Pablo, was not impressed.  “That immoral!” he declared.

“What’s immoral,” I asked?  I thought he meant that the past actions of the old Nazi were immoral.   But, what he meant was that the actions of Simon Weisenthal were immoral.  It turned out that Pablo’s consistent utilitarian judgment told him that those old Nazi were not doing society any harm any more, so going after them was immoral.

“ Leave them alone; they’re just old, harmless men now!  Who cares what they did in the past?”  seemed to be Pablo’s  attitude.

After I recovered from my astonishment, it became clear that Pablo had some reasons (‘philosophical’ reasons) for taking exception to the morality of the work of Simon Weisenthal and others like him who continue to ‘hunt’ old Nazis who escaped justice back in the 1940s as WWII was ending.

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Three reasons given for opposing the prosecution of old Nazi and my responses.

1 -  It is just vengeance or retribution – the old Biblical “eye or an eye” type of thinking which an enlightened society should no longer practice.

Pablo,  argued along these lines:

 “Under Utilitarianism, the purpose of punishment is to rehabilitate those who have committed crimes (and there is little doubt that many of these war ‘criminals’ who escaped to S. America and elsewhere were really criminals). If rehabilitation is the proper goal, then of what purpose is it to punish some one in his 60s or 70s who has led a decent life in his new country? The only purpose for such punishment is purely retributive; the kind of deontological thinking we find in Xtianity and Judaism (and, I suspect, in Islam as well). That’s the old ‘eye for an eye’ thinking about which I will have none of. What’s pathetic is that Juan wants to go along with this ancient retributive thinking. . . Punishment should be metted out only when it can do some good toward rehabilitation or to protect society from criminals who can’t be rehabilitated.”

This is a surprising assertion, since there are ethical and legal retributive theories which are not at all mere expression of the ancient Biblical practice of vengeance and theories which give philosophical grounds for punishment and sanctions whose aim is not to rehabilitate the offender or to “protect society from criminals who cannot be rehabilitated.”  For example, Joel Feinberg writes that  “punishment is a standard vehicle for the expression of resentment of injury received and also .. for the expression of recognition and disapproval of evil.”  (Doing and Deserving, Joel Feinberg)

From other philosophers and legal theorists, we get other statements of punishment as the expression of the community include the “moral condemnation of the whole community,” [1] “the emphatic denunciation by the community of a crime,” [2] “the expression of censure,” [3] and “communal expression of disapproval.” [4]

In short, the idea of punishment as retribution is not equivalent (in any sense) to the old Biblical notion of an “eye for an eye” type of vengeance.  Punishment as retribution can serve as the community’s expression of an emphatic condemnation of certain types of criminal acts, such as the mass killing of innocents.  Nor is there general agreement among philosophers and legal theorists that punishment is justified only when the offender can be rehabilitated or when society must be protected from that offender who cannot be rehabilitated.  Our thinking (legal and moral thinking) does not limit legitimate punishment to cases in which the offender can be rehabilitated.

But the general point concerns our laws and sanctions: Our laws impose penalties for violations of those laws.  The primary purpose of these laws and sanctions is to protect society, not to reform or rehabilitate the offender.

These laws with their sanctions can also be seen as expressing society’s legal and moral commitment.  They say: “We hold the protection and security of people – especially the young and the vulnerable – to be so important that we as a society will impose the appropriate penalty on violators of those laws.”  The laws with their sanctions for violations of those laws express the legal and moral commitment of the community.

Legally, the only relevant question about the appropriateness of the penalty: Did the accused commit the offense?

Morally, a community has the right to bring such violators to justice. This can be seen as an expression of the collective judgment of the community.  With respect to range of gross violations, the penalty can be seen as the community’s condemnation of such action.   We have a collective and emphatic declaration that you will not do ‘S’; but that if you do S you will be hunted down and punished to the fullest extent of the law.  If you do S, you incur a debt to society (primarily to the victims and their families) which you are obligated to repay.

In summary, a retributive theory of justice and punishment merely implies that the offender shall be held accountable for his actions and shall be brought to justice, regardless of any utilitarian concern with his rehabilitation or re-education.  If these can be accomplished, that’s fine.  But the application of justice does not rest on that utilitarian value. A retributive theory of justice and punishment does not at all takes us back to the “ancient Biblical practice” of a violent extraction of an “eye for an eye, a tooth for a tooth.”  

2 – There is no social benefit gained from the “hunting of Nazis.”  In many cases the old Nazi is just a harmless old man who might even be a benefit to the society in which he resides.  Going after him absolutely does not do anybody any good.

Here we have another surprising claim from my correspondent, Pablo.

His idea of the Utilitarian view of arrest & trial long after the offence (only when the offender can be rehabilitated or the action can be seen as protecting society) is a very narrow version of Utilitarianism.  A Rule Utilitarianism can justify laws calling for such arrest and trial of old criminals as laws that society implements for the good of society, e.g., as a way of discouraging and deterring other likely offenders. What is justified on utilitarian grounds is the law with sanctions or general rule that holds an offender responsible for this offense, and not the specific acts of seeking out, arresting and bringing to trial old offenders.  There is absolutely no inconsistency between Utilitarianism in this broader sense and the act of prosecuting old Nazis who have gotten away with their crimes against humanity (done in the 1940s in Nazi Europe).   And there are no grounds for claiming that “there is no social benefit” gotten from searching out and bringing to trial those old Nazis.

3 – The old Nazi is no longer the same person he was when he participated in the Nazi program to exterminate human beings, and should not be punished for what that “other person” did in the past.

Here’s another astounding claim by Pablo.  He writes:

“One of the most important aspects of selfhood, perhaps the most important, are the changes in the brain which are reflected  in memory loss, especially long-term memory. Without those memories, beliefs and  values we once held, we are no longer the same person. This is one of the reasons I suggested to Juan, regarding the prosecution of old war criminals, that the latter may not even be the same person they were 60 years earlier. Thus, since their selves have changed, they may not be the same person at all. Defining the self on a purely genetic basis only, just won’t do.”

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Here Pablo argues that we should not punish old Nazis because they’re no longer the same person who actively took part in the holocaust of the ’40s.  On this reasoning, there isn’t anyone guilty of a crime who should stand trial for this criminal acts, because — as contemporary science tells us (at least on Pablo’s reading) — they are no longer the same person who acted in the past.  Yes, folks, this is where some peoples’ version of philosophy takes them!

Surely, the fact that I have changed in many ways from the person I was in the past (no longer have the same beliefs, values have changed, don’t retain some memory, and so on) does not absolve me of responsibility for what I did in the past.  If I did something good, I can still claim credit (Hey, its been over thirty years since I earned that Ph.D and I still claim credit for it!) ; If I did something bad (Yes, twenty years ago I cheated my partner out of his fair share of the profit; I am still responsible for that shameful act!) , I am still responsible.  Claiming that I have changed as a person won’t do as a reason for concluding that I’m no longer responsible.  The only cases in which the law and our conventional practices allow for this absolution is in the case of insanity, brain injury or acts prior to maturity, as when something I did as an adolescent no longer counts against me as an adult.  But, not so in the case of past actions of an adult under normal circumstances.

Persons are creatures who retain an identity through change.   Sometimes those changes are so drastic that we are inclined to say that he/she is no longer the same person, as in the case of brain injury or serious stroke, for example.  But just because we change in some ordinary ways as we get older does not justify claiming that we’re no longer the same person who committed a crime decades earlier and disclaiming responsibility for what we did.  That the criminal is no longer the “same person” sounds too much like the ploy used by defense lawyers to soften the charges against their client.  And using this “lawyer’s tactic” to excuse the old Nazi who got away will not do, either legally or morally.

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Simon Weisenthal’s Explanation  

But let’s set aside these ‘philosophical’ considerations because the best explanation was given by Mr. Weisenthal himself.  In response to the question -  Why do the Nazi hunters pursue these old, fugitive Nazis long after their crimes?

 

“Wiesenthal was often asked to explain his motives for becoming a Nazi hunter.  According to Clyde Farnsworth in the New York Times Magazine (February 2, 1964), Wiesenthal once spent the Sabbath at the home of a former Mauthausen (a death camp) inmate, now a well-to-do jewelry manufacturer. After dinner his host said, “Simon, if you had gone back to building houses, you’d be a millionaire. Why didn’t you?”

“You’re a religious man,” replied Wiesenthal. “You believe in God and life after death. I also believe. When we come to the other world and meet the millions of Jews who died in the camps and they ask us, ‘What have you done?,’ there will be many answers. You will say, ‘I became a jeweler,’ Another will say, ‘I have smuggled coffee and American cigarettes,’ Another will say, ‘I built houses,’ But I will say, ‘I did not forget you’.”

He did not forget the victims of the Nazi genocide.  Neither should the rest of us.

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[1] Feinberg also writes that Professor Hart has his definition of punishment as (in part) “a formal and solemn pronouncement of the moral condemnation of the whole community.” (Henry M. Hart, “The Aims of the Criminal Law,” in Law and Contemporary Problems, 23 (1958))

[2] Lord Denning, in the Report of the Royal Commission on Capital Punishment, speaks of punishment as “the emphatic denunciation by the community of a crime.”

[3] Among .. philosophers in recent decades who have made reprobative expressiveness essential to punishment are E.F. Carritt, who wrote in The Theory of Morals (London: Oxford University Press, 1928), 111, that “the essential thing in punishment … is not pain, but the expression of censure, which is necessarily painful.”

[4] Morris R. Cohen, who wrote in Reason and Law (Glencoe: The Free Press, 1950), 50, that “we may look upon punishment as a form of communal expression . . By and large such expression of disapproval is deterrent. But deterrence here is secondary.”

{Joel Feinberg,  Doing and Deserving, (Princeton, NJ, Princeton University Press, 1970)}