Speranza wrote,
---
R. Paul reminisces that at his trial, Lieut. Calley said that he "was only only following orders (Captain Medina's)"
Oddly, the piece forwarded by Helm (and I must re-elaborate on Kramer's commentary) included:
From wiki, 'superior orders', cited by Helm:
"This is a legal defense that
essentially states that the defendant was
"only following orders" ("Befehl ist Befehl", literally
"order is order") and is therefore not
responsible for his or her crimes."
Oddly, I once played with Margaret Thatcher (scenario).
"So, what do you think of Thatcher's policy vis a vis the sinking of the Argentine battleship?".
B: Women are women.
A: War is war.
Grice considers both replies (WoW:"Logic and Conversation", slightly dissimilar scenarios).
Both answers are, as Grice notes, and the wiki entry too,
like
C: Befehl ist befehl.
Implicatures on which should follow suit. Or not.
R. Paul reminisces that at his trial, Lieut. Calley said that he "was only only following orders (Captain Medina's)"
Oddly, the piece forwarded by Helm (and I must re-elaborate on Kramer's commentary) included:
From wiki, 'superior orders', cited by Helm:
"This is a legal defense that
essentially states that the defendant was
"only following orders" ("Befehl ist Befehl", literally
"order is order") and is therefore not
responsible for his or her crimes."
Oddly, I once played with Margaret Thatcher (scenario).
"So, what do you think of Thatcher's policy vis a vis the sinking of the Argentine battleship?".
B: Women are women.
A: War is war.
Grice considers both replies (WoW:"Logic and Conversation", slightly dissimilar scenarios).
Both answers are, as Grice notes, and the wiki entry too,
like
C: Befehl ist befehl.
Implicatures on which should follow suit. Or not.
Lawrence Helm responds: Some of this was tied back to the Nuremberg trials and the trial of Eichmann in Israel. Part of Eichmann's defense was that he was functioning in accordance with German Law. He understood the orders he received to be lawful. Eichmann was convicted and executed despite the fact that he didn't break the German laws that governed his actions.
I think Eichmann and most of the defendants at Nuremberg should have been either executed or imprisoned, but not because they broke German law. Nor was there any higher law that could be appealed to. There was not world court that they agreed to comply with. It would have been more honest for the victors to have avoided the idea that those being tried "violated laws," because they didn't violate the laws that they lived under. And it doesn't make good sense to say they violated our laws. We no longer have laws to govern situations as they were in the past. In the past the victors reserved the right to execute any or all of the enemies that had just been defeated. If we are going to execute people as was done in Israel and Nuremberg then we need something like that.
Calley's defense was different. Captain Medina gave Lieutenant Calley orders to demolish a village and told him there were no civilians in it. The intelligence Medina based his orders on was wrong. Calley was faulted because he encountered women and children that others thought should have convinced him that the orders were wrong. However, women and children were used in attacks much as they have been by the Islamists so it is barely plausible that Calley didn't know they were merely civilians. Calley was not well liked by the men under him so it is also plausible that they were not being objective when they faulted Calley. On the other hand, I think that if I were there, based on what I know about the case (and about myself) I would have refused to shoot those people. But many who like me were not there like to say something like that without really knowing what it was like to have experienced what they did. I saw a documentary on Mai Lai not so very long ago and some of the soldiers that were there report that they still have nightmares over what they did back then. I would like to think I would have done nothing that would have given me nightmares, but how can I (or anyone) be sure? Giving them the benefit of doubt, Nixon was not necessarily wrong to have pardoned Calley.
Posts
I should add a disclaimer: If I were in a position to make this happen, I would weigh the continuance of the fiction that people like Eichmann have "broken the law" against the "can of worms" I would be opening by abolishing that continuance. We would need a "counterfactual" to project what the world would look like if we set the precedence for victor's justice, however much more honest it would be than the pretense that enemies broke their own law -- or some international law they never signed up to.
ReplyDeleteThanks for the distinction. Indeed, it trades on something that should interest the meta-ethical or meta-ethicists entre nous, and that is quoted in the wiki entry, "Superior Orders". The issues are pretty complex and subtle. They involve:
ReplyDeleteRULE 1.
"The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or *civilian,* shall not relieve that person of criminal
responsibility *****unless***** :"
--- this a bit like Kramer on exceptions to excpetions, unless it's different.
(FIRST)
"The person is under a legal OBLIGATION to obey orders of the
Government or the superior in question."
--- this trades, for me, illegally, on legal obligation, that NO moral philosopher, such as Grice was, should be interested in. Philosophers interested in legal stuff as legal obligation are, in Grice's parlance, alla perhaps Nozick, 'neo-Thrasymachus'.
(SECOND)
"The person does not KNOW that the order is unlawful."
---- for not everybody likes Kelsen.
"The order is unlawful" sounds ok. The law is unlawful does not. This relates to Helm's comment above, as to what makes sense and what does not, or what makes good sense, etc.
(THIRD)
"The order IS *not* _manifestly_ unlawful."
Where manifestness is in the eye of this Irish woman who said, "Beauty is in the eye of me".
If it were so EASY to talk 'manifest' like that I wouldn't be reading Grice!
RULE 2.
"For the purposes of Life, orders to commit ... a [crime]
against humanity [such as killing her? JLS] are manifestly unlawful."
Or not!
For, as Helm notes, how are we sure, certain, etc. that this person is not going to kill our friends, instead?
But Nikson, as I prefer to spell his name, was possibly ok to pardon Calley. He could not have electrified him, either, even if his enemies thus wanted.
Oddly, when Grice gave the John Locke lectures at Oxford he used the example:
"Nixon should be teaching ethics here".
--- the joke was wasted on some!
--- vide "Nixon" in the name index to "Aspects of Reason" (Grice 2001). The example by Grice is SO SUBTLE that it hurts. Grice wanst to consider 'ought' and 'should' and 'must'. He is against Hamsphire in thinking of 'should' as important. He is against Hare in thinking 'ought' TOO strung. So he is left with 'must', mustn't he?
--- But 'must' is AMBIGUOUS. Nixon must be teaching ethics. This may mean that the UTTERER thinks that Nixon might be teaching ethics, or must be teaching ethics. But it can also, more irritatingly, mean that NIXON thinks that he must be teaching ethics!
Helm:
ReplyDelete"however much more honest it would be than the pretense that enemies broke their own law."
Exactly. But I'm not sure people are arguing that, say, Eichmann or Calley broke their own law. Are they?
First, it's ambiguous. I think 'law', etc., are too grand words here. We need 'procedure' only!
And we need to formalise this as "Agent" A.
Agent A breaks his own procedure. Does not make sense! One may think that one is acting IMMORALLY. But under VERY special circumstances.
Notably, weakness of the will!
I once presented L. M. Tapper, who contributes to this club, with Grice's refined views on akrasia. He sighed, "Mmpf. It seems as if 'weakness of the will' is going to prove some damned pretty hard stuffs, after alls!"
What about agent flouts his own procedure?
ReplyDeleteIt's fun that Helm uses 'pretense' because that's eironic! For Grice, the only theory of irony that works is the one that treats it for what it is: pretense.
So, it cannot be as simple as that!
--- Calley was perhaps a bit of an idiot thinking that a female and/or child could counterattack. But then, the Troyans were also pretty idiotic in thinking that a WOODEN horse could not counterattack...
Eichmann was possibly talking nonsense. In a way it reminded me of the first case mentioned by wiki:
"In 1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of the
Holy Roman Empire, there was the first known “international” recognition
of commanders’ obligations to act lawfully. ... Hagenbach offered the
defense that he was just following orders, but this defense was rejected and he
was convicted of war crimes and beheaded.[7]
Specifically, Hagenbach was put on trial for atrocities committed under
his command but not by him directly, during the occupation of Breisach. This
was the earliest modern European example of the doctrine of command
responsibility. ... Since he was convicted for crimes "he as a knight was deemed
to have a duty to prevent," Hagenbach defended himself by arguing that he
was only following orders[5][9] from the Duke of Burgundy, Charles the
Bold, to whom the Holy Roman Empire had given Breisach. ... This defense was
rejected."
Making the whole discussion otiose. Like how many angels can do the foxtrot on the pin of a needle.
Or not!
Eichmann was prosecuted under a law adopted in 1950. But all's fair in love and war, and Eichmann's trial was merely war continued by other means.
ReplyDeleteThe prosecutor in the case said afterward, explicitly, that the Israeli courts' disregard for the principle against ex post facto legislation was not a matter of law but a matter of justice.
Excellent comment, Larry Kramer, which connects with the philosophical side about this: Rawl's 'fair's fair'. I will have to revise this, but I believe 'fair' is not (only) 'ambiguous' (pragmatically) but TWO words (packed into one -- homophony, as 'vice' and 'vice' -- he was caught in the grip of a vice/vyse). Thus 'all's fair in love and war' may be expicited further. Cfr. 'Mayfair lady' which becomes the musical, "My fair lady" -- hardly my _just_ lady -- less so my lawful lady. Or not.
ReplyDeleteKramer:
ReplyDelete"disregard for the principle against ex post facto legislation was not a matter of law but a matter of justice."
In other words, illegal and moral?
----
This topic fascinated Grice. As I said, he played neo-Socrates against neo-Thrasymachus in his "Eschatology" paper in WoW, which should be quoted in Platonic Studies. It represents the best of the Oxford tradition in it being exegetical of the authors that mattered Oxonian authors most: the Greeks!
Kramer: "disregard for the principle against ex post facto legislation was not a matter of law but a matter of justice."
ReplyDeleteOddly, from what I read, everyone who was connected (one way or other) with Grice: Hare, Flew, etc., all had caveats against Rawls. Some of them not ex post facto, but 'before the fact'.