THIS PAGE
TO A FRIEND
"The Nuremberg Trials:
Last Tragedy of the Holocaust"
By Ellis WashingtonThe Nuremberg Trials can be pre-ordered by calling
800-462-6420, promotion code "UPREPUB."
T he principal objectives of this manuscript is to put forward the proposition that the Framers of the United Nations and it’s international legal arm, the Nuremberg Tribunal, utilized a defective legal philosophy and jurisprudence 60 years ago at the advent of the Nuremberg Trials called, Positive law. That this adherence to a twisted, perverted, ineffective legal philosophy has virtually destroyed subsequent international war crimes cases which in modern times have devolved into utter symbolic, show, and farcical trials at The Hague (e.g., Rwanda, Cambodia, the former Yugoslavia, Sierra Leone, Congo, Iraq, etc…). A second objective is to present a case for a more substantive and historically relevant legal philosophy and jurisprudence that the Framers of the U.N. and Nuremberg Tribunal ought to have relied on in judging the 24 Nazi defendants—Natural law.
What is natural law? Natural law was the original philosophy out of the Judeo-Christian and Anglo-American legal traditions dating back thousands of years and the basis of virtually all laws, statutes, and ordinances in America and Europe prior to 1900. Philosopher David Adams, in his book, Philosophical Problems in the Law, defines natural law as: “principles and standards not simply made up by humans but rather part of an objective moral order, present in the universe and accessible to human reason.”
It is with Adams’ definition of natural law which I launch my apologetic that natural law was the philosophy that the Framers of the United Nations and the Nuremberg Tribunal should have relied upon. Another objective or impetus of this book grew out of a series of correspondences in October, 2003 about my Nuremberg Trials article I had sent to an esteemed Israeli acquaintance, Dr. Robert Rozette, Director of the Library Yad Vashem and The Holocaust Martyrs’ & Heroes’ Remembrance Authority in Jerusalem.
Unbeknownst to him (I suppose) was how his previous encouraging comments about my Nuremberg Trials article was to me a truly epiphany experience which stirred a fire in my soul to broaden my original objectives in my article, to do more—to advance the cause of the Jewish people, both in Israel and the Diaspora, through my research and writings on the Holocaust and its aftermath, the infamous Nuremberg Trials by conducting a substantive critique (at the meta-level) of the philosophical suppositions that formed its jurisprudence, political philosophy, and guided its legal investigation. Other objectives of this manuscript that eventually grew out of these correspondences are the following— Why did the Framers of the U.N. and it’s international legal arm, the Nuremberg Tribunal, insist on using positive law—separating legality and morality from the very start? Was there a surreptitious hidden agenda taken by this course? Cui bono?—To who’s benefit or good? Who would gain from following this legal worldview? Why did the Framers of the U.N. and the Nuremberg Tribunal not include the former legal philosophy of natural law in their legal investigation and judgment of the Nazi defendants? After all, wasn’t it the universal moral revulsion of Hitler’s unbridled genocide against the Jews and others a primary impetus in the first place in bringing the 24 high ranking Nazi officers to justice for their venal crimes against humanity? Did the U.N.’s militant segregation of law and morals have an adverse effect on the Allies’ case against the 24 Nazi defendants and in subsequent Nuremberg Trial cases? Perhaps this dearth of philosophy and judicial impotence contributed to cases having between a 20-30% acquittal rate? Did the positive law legal philosophy of separating legality and morality started at Nuremberg in 1945 set a destructive precedent in subsequent international war crimes trials?—the most recent being Rwanda, the former Yugoslavia, Cambodia, Sierra Leone, Congo, and the present trials in Iraq against the dictator, Saddam Hussein (Dujail, Anfal, etc…)
The variety of information I have used to achieve the goals of this manuscript principally originate from several sources including two previous writings of mine, (1) Chapter 4: “The Nuremberg Trials: Birth of the Death of the Rule of Law,” from my second book, The Inseparability of Law and Morality: The Constitution, Natural Law, and the Rule of Law (Maryland: University Press or America, 2002); (2) Law review article titled—The Nuremberg Trials: The Birth of the Death of the Rule of Law, 49 Loyola Law Review 101 (2003); (3) various classical texts on jurisprudence, legal history, legal philosophy including Jean Bodin’s essential work on the history of law titled—Six Books of the Commonwealth (1576), and Sir Henry Maine, Lectures on the Early History of Institutions, (1875), who eloquently wrote on English sovereignty and empire during a period when both were at their height; James Bryce, Studies in History and Jurisprudence, (1901), and John W. Salmond’s work, The First Principles of Jurisprudence (1893), an encyclopedic exposition of definitions and essays on law by famous jurists, literary figures, scholars, from ancient times to the modern period. For a modern treatment on legal history, Stanford University Professor of Law, Lawrence M. Friedman’s two books: A History of American Law (3rd ed. 2005) and American Law in the Twentieth Century (2004), are the standard.
I also heavily relied on the actual Nuremberg Trials transcripts (International Military Tribunal at Nuremberg Blue Series [I.M.T.]), particularly those excerpts of Robert Jackson, (Justice of the U.S. Supreme Court on leave to be the Chief Prosecutor for the U.S. at Nuremberg), Hermann Jahrreisse (Professor of Cologne and Defense attorney for defendant Alfred Jodl), Sir Hartley Shawcross (Chief Prosecutor for Britain), Judge Charles Wyzanski (Massachusetts Circuit Court Judge, who in 1946 wrote a series of popular articles in the Atlantic Monthly questioning the very legality of the Nuremberg Tribunal and characterizing the entire proceedings as ‘victor’s justice’). I utilized a host of law review articles on the legal philosophical suppositions of the Nuremberg Trials and their correlation to the Holocaust by numerous scholars chief of which are—“The Myth of Is and Ought” by Arnold Brecht (Harv. L. Rev. [1941]); “Positivism and Separation” by H.L.A. Hart (Professor of Jurisprudence, Oxford University [1958]); “Positivism and Fidelity to Law: A Reply to Professor Hart,” Lon Fuller (Professor of Jurisprudence, Harvard [1959]), “The Problematics of Moral Theory” (Judge Richard A. Posner, Harv. L. Rev., 1997). Primary books referenced on the Nuremberg Trials and the Holocaust include—William Shirer, The Rise and Fall of the Third Reich (1949); Albert Speer, Inside the Third Reich—Memoirs (1969); Elie Wiesel, Night (1960), Dawn (1961), The Accident (1962); Daniel Goldhagen, Hitler’s Willing Executioners (1996); Alan M. Dershowitz, America on Trial (2004); David M. Adams, Philosophical Problems in the Law (1992, 1996); David Barton, The Myth of Separation (1992); Original Intent (1997); H.L.A. Hart, The Concept of Law (1960); Lon Fuller, The Anatomy of Law (1968); R.A. Posner, The Problems of Jurisprudence (1990).
Some of the differences between my manuscript and other books and articles on similar or related subjects on legal history, legal philosophy, constitutional law, international law, and the impact of law in shaping culture and society, include several particularly noteworthy sources—First, the interesting and engaging commentaries in the International Military Trial [I.M.T.] transcripts and in his memoirs reflecting on his Nuremberg Trial experience by Hermann Jahrreiss. Hermann Jahrreiss was Professor of Law at Cologne and Associate Defense counsel for defendant Alfred Jodl, who skillfully and with some success utilized the “act of state” defense and the “doctrine of absolute sovereignty.” Both legal philosophies came directly out of John Austin’s Providence (1832), the British legal theorist who along with Jeremy Bentham, are credited with first suggesting that law and morals should be separated. Jahrreiss presented a lengthy apologetic on jurisprudential and historical considerations of the Nuremberg Trials. His eloquent discourses epitomize the most extensive efforts by defense counsel to elucidate a philosophical foundation for the case against the Nazi defendants. Secondly, is Jean Bodin’s essential work on the history of law titled—Six Books of the Commonwealth (1576). Bodin’s work provides a comprehensive starting point for the study of a history of law out of the Western tradition of intellectual thought.
The previous Western conception of law as subsequent and superior to man was by the late 16th century beginning to be replaced with law as a mere tool or servant of the state. In Bodin’s Commonwealth, the “Prince” though freed from the law of man and considered a law unto himself, medieval understanding of the law still constrained him to the ubiquitous universal natural law precepts that constrained all civil society, binding them to certain common, ecumenical precepts of which all mankind were obliged to follow (i.e., Bible, common law, rule of law, theism, etc.). I also relied on Thomas Jefferson’s immortal words in his Declaration of Independence, originally titled—A Declaration by the Representatives of United States of America, in General Congress Assembled, which is excerpted below: When, in the course of human events, it becomes necessary for a people to advance from that subordination in which they have hitherto remained, and to assume among the powers of the earth, the equal and independent station to which the laws of nature and of nature's god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the change. Those eight seemingly benign words italicized above have done more to substantively delineate the original legal/political philosophy of America’s Founding Fathers and the Framers of the U.S. Constitution in forming this democratic republic than any other source I’ve read which begs the question—In the history of American constitutional law, was law and morality (religion) originally irrevocably separated? Jefferson and the Framers of the Constitution certainly would not hold to this popular trend of segregating law from morals in modern times. Why then was law and morality separated by 1945, the year the U.N. and Nuremberg Tribunal were inaugurated? Was there some sinister, surreptitious motive afoot here by taking this course?
Unlike many other books on the Holocaust and the Nuremberg Trials, a number of authors fail to address the fundamental questions like I’ve proposed in my manuscript; a position where I directly, unapologetically, and audaciously tackle many of the vexing paradoxes Hitler and his wicked henchmen unleashed in their hatred upon the world in World War II by doing an in depth comparative analysis of the foundational theories of Nazi ideology—positive law vs. natural law jurisprudence. Many authors I’ve read on the subject, if they say anything about the underlying philosophical speculations of the Nuremberg Trials, fail in any substantive way to delineate a proportional analysis of why the Nuremberg Trials were purposely established entirely on positive law grounds? And further, why were natural law considerations totally ignored? Additionally, I propose the following prescient questions regarding the legal philosophical suppositions of the Nuremberg Trials—What is positive law? What was the legal philosophy or jurisprudence jurists relied on before positive law was enacted? What is natural law? Why did the U.N. and Nuremberg Trial Framers fail to directly mention natural law in their legal investigation against the 24 Nazi defendants, yet relied on natural law suppositions indirectly throughout their legal investigation? These are the difficult and intractable questions I address and wrestle with in my manuscript. An example of the methodical rigor I bring regarding positive law and it’s failings as a viable legal philosophy and analytical jurisprudence are cited below in an excerpt from my manuscript on the Nuremberg Trials— Positive law or legal positivism (as it is often referred to in philosophical circles) is riddled with many flaws of which I cite in summary as follows—(1) Positive law fails to take account of sources of law that are independent of the state (i.e., indigenous sources like religion, tradition, or culture); (2) Positive law fails to distinguish between de jure (by right; legal) and de facto (quasi-legal; acting as legal or under the color of law) sovereignty; (3) Positive law fails to take account of functions of legal rules other than the “command” function; (4) Positive law fails to take account of legal obligations of the state. These and a variety of other defects of positive law inexorably lead many legal theorists and philosophers to erroneously examine law through the rose colored lens of the letter of the law at the expense of the spirit of the law. As we shall later see this perverted understanding of the law and its mandated purpose will have disastrous consequences in the Holocaust and in the Nuremberg Trials. (See Prologue section) Looking back 60 years ago, can it not be convincingly argued that what I refer to as the ‘Nuremberg Trial philosophy’ of separating law from morals has sowed the seeds of tyranny and perpetuated the current chaos in international law? That adherence to humanistic principles called positive law has caused a perversion of the rule of law in European and American foreign policy? In my manuscript I make a concerted effort to give an answer to these most salient, but intractable questions that have plagued international law, constitutional law, and war crimes trials since the advent of the Nuremberg Trials in 1945.
The significance of my research and conclusions are linked to the encouragement found in Dr. Rozette’s correspondences and were a critical catalyst toward motivating me to write this manuscript. He showed me that there was a need in Holocaust literature of a book of this type and that my initial research and conclusions I had sent him on the Nuremberg Trials could indeed be further supplemented and that I was in a perfect position to write such a book. I recall during one correspondence in particular Dr. Rozette candidly telling me that there was a need in Holocaust scholarship for a unique book of this type that rather than looking at the Nuremberg Trials as a purely historical event (of which there are many), Holocaust scholarship needed a book that actually analyzed in a systematic and thorough manner the underlying legal/philosophical suppositions and presumptions that even made the Nuremberg Trials a plausible entity in itself. The relevant conclusions of this opus moreover provide a clear and present warning to the nations of the world in modern times of the dire consequences for a people, a nation, a government, a legal system, an international tribunal that follows the Nuremberg Trial philosophy—a perverse jurisprudence rooted in relativism, secularism, humanism, egalitarianism, and materialism. That the analytical jurisprudence of positive law and logical positivism is a twisted, implacable legal theory that separates law from morality for these two entities in any practicable legal system are indeed inseparable, and to state in dispassionate terms that to reestablish the primacy and respect of the rule of law the legal community must radically change their bias against morality having any role in effecting or determining what the rule of law will be.
I think that my manuscript has the unique position in the voluminous volumes of Holocaust literature to put forth a trenchant legal and philosophical critique on the short comings of the Nuremberg Trials at vindicating the genocide against the Jewish people (and others) in the context of a meta-level analysis of this analytical jurisprudence and its permutations—positive law, legal positivism, legal realism, humanism, which formed the ideas of the U.N. and the Nuremberg Tribunal. Furthermore, to analyze the other philosophies that played a significant role in the ideas of the minds of the jurists and leaders like Presidents F. D. Roosevelt and Truman, Justice Robert Jackson, Judge Charles Wyzanski, Nuremberg Trial jurists like Hermann Jahreisse and Hartley Shawcross, as well as contemporary jurists like Judge Richard A. Posner, Jonathan Turley, and Harvard Professors, Lawrence Tribe, Alan M. Dershowitz, and Martha Minow. Finally and most notably is the final chapter (Epilogue) that seeks to put what I call the ‘Nuremberg Trials philosophy’ in the context of modern international war crimes trials of contemporary times. Particularly, how has the Nuremberg Trials’ slavish and ahistorical reliance on humanism, positive law, and analytical jurisprudence, a worldview and legal philosophy predicated on separating law from morals, implemented to speedily and effectively bring would-be international criminal defendants brought up on charges of war crimes, crimes against humanity, genocide, and conspiracy to commit war crimes? In my manuscript I attempt to systematically and dispassionately chronicle that the precedent set by the Nuremberg Trials in 1945 has sent international law and constitutional law, particularly in the area of war crimes trials, into the abyss of symbolic justice, bureaucratic ineptitude, too-little-justice-too-late, and a pathetic legacy of symbolic, show, and farcical trials that have little relevance in deterring evil men from committing genocide on the vulnerable.
In conclusion, a special feature of this manuscript includes the following cover letter that accompanied my original law review article on the Nuremberg Trials as it was designed to commemorate Holocaust Remembrance Day and to be my personal gift to the Jewish people in honor of their contributions to humanity going back to earliest antiquity. I sent this letter out to many Jewish organizations, Holocaust scholars, Holocaust museums, synagogues, think tanks, and other Jewish, Christian, and civil groups over a two year period many of whom I have gratefully acknowledged and received my law review article on the Nuremberg Trials into their archives. These groups and many others cited in the second paragraph of this letter also servers as the intended audience and the types of readers who would be attracted to reading this opus— Dear Elie Wiesel: April 18, 2004 In memory of Holocaust Remembrance Day (April 18, 2004) and in exceeding gratitude and love for the contributions Jewish people have given humanity, please find attached an original copy of an article I would like your organization to add to its archives and to distribute to interested colleagues and groups. It is titled: The Nuremberg Trials: The Death of the Rule of Law. I am happy to report that I have recently had this work published, see 49 Loyola Law Review (2003). The response to this work has been tremendous. This article has been added to the following archives: The Supreme Court of the United States, The Ronald Reagan Presidential Library, The George Bush Presidential Library, The Simon Wiesenthal Center, The U.S. Holocaust Memorial Museum, The Helene G. Simon Hillel Center at Indiana University, The Bentley Historical Collection (University of Michigan), Yad Vashem Library (Jerusalem), State Museum of Auschwitz-Birkenau, Leo Baeck Institute (NY), World Zionist Organization, YIVO Institute for Jewish Research, Harvard Law School, University of Cambridge, University of Cambridge Squire Law School, Oxford University Law School, University of Chicago Law School, State University of New York (Suffolk), Dr. Daniel Pipes (Scholar, Middle East Terrorism), Ward Connerly (Regent, UCLA), Rabbi Daniel Lapin (Toward Tradition), Israeli Ministry of Foreign Affairs (Jerusalem), The Israeli Consulate of New England, World Jewish Congress, Anti-Defamation League, The Jewish Agency, Jerusalem Post, The Jerusalem Report, Jews for Judaism, New York Jewish Post, National Public Radio, Detroit Jewish News, Canadian Jewish News, numerous synagogues in addition to many other respected archives, academic institutions, and Holocaust scholars. . . . As a Black man and a Christian, I have been a lover of Jewish culture and a friend of the Jewish people for many years. Long ago I made a vow to God to dedicate my legal career and writings to proclaiming truth to the law academy and to society based on the Judeo-Christian tradition of intellectual thought. I am honored to make this small contribution to bring the light of truth and Reason to a very dark and ignominious chapter of Jewish history. Shalom,
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed prior interest in receiving this information for non-profit research and educational purposes only. For further information please refer to: http://www.law.cornell.edu/uscode/17/107.shtml
