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)

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)}