Grice's Qualitas

by J. L. Speranza
for the Grice Circle.

-- KRAMER, 'ex post facto', comment, this blog:

"Assumed truthfulness seems to me more a prerequisite to conversation than a feature of conversation. A cannot infer anything from something U says if A does not believe U is being truthful."

Agreed. In my PhD I used 'trustworthiness' instead -- trying to impress the jury of course! Using 'truth' sounded TOO True to be true!

---

In fact, and in general, the English idea of 'truth' is confused! "Verum" does much better in Latin and Italian ('vero').

----

While Grice does use 'true' in Qualitas, he is being, I hope, rhetorical. One can replace it by 'trustworthy':

Grice:

"Under the category of Quality falls a supermaxim -- "Try to make our contribution one that is true""

---

"Be trustworthy".

"and two more specific maxims:
1. Do not say what you believe to be false"

--- Do not be untrustworthy.

"2. Do not say that for which you lack adequate evidence".

I.e. be trustworthy. Be reliable.

--- To trust, in English, is the most you can get out of the language. Truth springs, conceptually, in English, from the subjective psychological attitude of 'trusting'.

The problem I had with this is the doxastic-boulomaic distinction. As Grice notes, it is a BELIEF that is true. Hardly a desire!

But we want conversations to include 'directive' moves:

"Open the door!"

-- trustworthy? Yes: if you WANT the door open. True? Nonsense!

----

Now back to Kramer:

"Assumed truthfulness seems to me more a prerequisite to conversation than a feature of conversation. A cannot infer anything from something U says if A does not believe U is being truthful."

Indeed. But I can. In fact, I rely so much on the addressee's and utterer's irony that I'm never sure if I want them trustworthy.

I would often ask for opinions for which my co-conversationalist partner IS supposed to 'lack adequate evidence'. I find adequate evidence slightly boring.

Note that Grice, while not saying, is trading on Gettier. By having 'adequate evidence' and 'truth' and 'belief', he gets "knowledge" but we do not need to GO there!

"Assumed truthfulness seems to me more a prerequisite to conversation than a feature of conversation. A cannot infer anything from something U says if A does not believe U is being truthful."

But A can infer that U is at least
INTENDING (or merely willing) A to
think that U displays psychological attitude psi with content p.

To THIS U is committing himself. Not so much the very truth (about p), let alone U's sincere psychological attitude.

I analysed this -- in my PhD -- along THREE features of the Griceian analysis of meaning: exhibitiveness, the Grice way, and the anti-sneak clause. The one that concerns us here is the first: exhitiveness. How does Grice explains this? It's on p. 111:

"Let us draw a distinction between what I might
call "purely exhibitive" utterances (utterances by
which the utterer U itnends to impart a belief that
he [U] has a certain propositional attitude), and
utterances which are not only exhibitive but what I might
call "protreptic" (that is, utterances by which U intends,
via imparting the belief that he [U] has a certain
propositional attitude, to induce a corresponding
attitude in the [addressee]."

This is Austin's perlocutionary distinction between 'convince' and 'persuade' with a vengeance!

He returns to the 'exhibitive' on p. 123:

"The effect of the second change ... will be
to introduce a distinction between what I
might call"

--- he just did! But this was ANOTHER day. It is a different lecture!

"EXHIBITIVE utterances (utterances by which the
utterer U M-intends ["M", circularly, for 'meaning']
to impart a belief that he (U) has a certain
propositional attitude) and utterances which are not only
exhibitive but what I might call "protreptic""

-- the man refused to republish "Causal theory of perception" on the ground that it would have been repetitive, but he is repeating himself after less than, say, 10 pages! You gotta love him!

"(utterances by which U M-intends, via imparting
a belief taht he (U) has a certain propositional
attitude, to induce"

-- favourite Gricean verb there --

"a corresponding attitude in the [addresee]."

So, back to Kramer:

"Assumed truthfulness seems to me more a prerequisite to conversation than a feature of conversation. A cannot infer anything from something U says if A does not believe U is being truthful."

Surely A can merely expect that U is being 'purely exhibitive'? I know it's hard, but try!

The FIRST condition for meaning then, becomes:

-- U intends that A believes that U believes that p.

How do you fulfil this intention? Not by being truthful! But by achieving it and its goal. I.e. the point that A will believe that U believes that p.

Note that Grice agrees with Kramer that 'truth' is at the heart of the matter. Moore's our man.

"It is raining but I don't believe it".

Grice comments:

By uttering "p", Grice suggests:

"the natural thing to say ths that [U] has
EPXRESSED (or at least purported to express)
the belief that p."

He adds:

"He has of course COMMITTED himself, in a
certain way"

that I'm never certain about!

"to its BEING THE CASE that"

not p, but

"he [i.e. U] believes that p, and while
this commitment is NOT a case of"

explicitly stating it,

"it is bound up, in a special way, with"

.p

(where .p indicates the assertion sign of Frege. Versus !p for 'Close the door').

"The nature of this connection will, I hope, become
apparent when I say somethingabout the function
of the indicative mood".

Or mode.

I can hear sighs from the Audience. "So, this man is going to tell us that the function of the indicative mode is to indicate?!"

Kramer and Grice on the uses of argument: unius est exclusio, noscitur a sociis

by J. L. Speranza
-- for the Grice Club.

JUST BECAUSE KRAMER USED 'ex post facto' and I looked for the retronym (ex ante facto, which sounded more logical to me -- surely I need to KNOW in 'advance' to my doing -- I came across this rather sloppy use of Grice by Smith, to which Kramer is responding:

"Legal exchange is a particular kind of conversation, not
a non-conversation. And there are maxims for
interpreting contracts that indeed involve
implicature: expression unius est exclusio alterius,
noscitur a sociis and the general rule that a
contract will be construed contra proferentum - against
the party who wrote it (so that, for example, disingenuous will not pay)."

Excellent.

And there's suggestio falsi, and the rest of them!

I wish I knew more (about) legalese. When Toulmin died, recently, I wrote elsewhere about that (his death). Reviewing the reviews, and his opus magnum, "The uses of argument", I encountered this feeling, among philosophers, that Toulmin, perhaps unphilosophically, focused on 'legal' argument. But now I know what they meant!

----

Grice was too wedded to 'philosophy of perception' (British vein) to care much for legalese, but I get Kramer's point.

---

Now, Toulmin's take, that legal argument should be the MODEL for all argument -- hence his alternative to the premise-conclusion model of reasoning and provision of one that dwells on 'backing' and stuff, should be perhaps be interpreted in a Griceian key.

Toulmin's fare in America, he said, was unfortunate. He found his "Uses of Argument" which had been criticised by Strawson in the Oxford of Grice's day -- and in general ignored by his Oxford pares -- had become a textbook in the USA, but not in the philosophy classes or courses, but in the rhetorical ones!

I had to read Leech (and his principles of what he calls 'conversational rhetoric') to see that it is perhaps in legal rhetoric and rhetoric in general that the heart of the Griceian proposal lies. Recall that the rhetor of olden times was a bit of a lawyer.

For example, I never understood why Demosthenes would care to utter conversational moves (and explicit performatives) to the waves... Helping them to understand -- what?

Grice's Volkswagen

by J. L. Speranza
-- for the Grice Club.

-- WE ARE CONSIDERING WITH KRAMER ('ex ante, ex post', comment, this blog), Grice:


---- Out in his frontyard:

GRICE: standing next to his immobilised Volkswagen:
-------- "I am out of petrol"

Grice's wife: "Typically".

----

Kramer comments:

"If anything, the situation in which B offers
free advice on finding a gas station is
the anomalous model."

Indeed. It never happened to me. I would be at a total loss. I think it should be illegal that cars run out of petrol like that. It's obscene. I guess I would walk, or take a taxi, and care less about the car. What I would NOT do is stand by it to expect a total stranger to LIE to me ("There is a garage round the corner"). In any case, with such a reply, I would not know what to do. Is B expecting that I WALK there? Shouldn't she rather be providing her cell phone and dial herself?

Kramer:

"the situation in which B offers
free advice on finding a gas station is
the anomalous model."

springing from the anomalous situation in which one's car runs out of petrol. Imagine if we were to universalise that Kantianly. "You are late again today". "Yes, my car run out of gas -- and this time there was NO garage round the corner, so I had to walked 2 MILES, and then, it was closed."

Kramer: in Grice's example,

"There, B is trying to offer substantive help to A, which
confuses the conversational issue entirely,"

-- exactly. Plus, it is UNphilosophical, and Grice KNOWS it. People have perhaps PAID to attend his William James lectures at Harvard, expecting big philosophical elucidations about things that matter -- personally I would have been VERY disappointed to enrol to the lectures and witness that William James was not mentioned ONCE --, and you get silly examples about 'obviously immobilised cars' instead. (Ah well).

Kramer:

"because the CP is about U helping A to understand U's thoughts, not U helping A to solve A's car problems."

Exactly. In fact, it's sillily more elaborate than that. For by 1975, Grice had turned a functionalist, a behaviourist with a big "F" (for 'function'). SO 'thought' loses meaning. We only have BEHAVIOUR. Grice notes that 'movement' is NOT behaviour. If you approach me, the Very Way you approach me counts as behaviour, which is friendly, unfriendly, etc. Movements per se do not display friendliness or lack thereof.

So, it's more like EXPLAINING U's BEHAVIOUR. He has displayed 'x' (an utterance). We assume ourselves to be the "A", the addressee. A rainbow cannot imply rain, because how can a rainbow (NOT God) intend me to be the 'intended' recipient of itself? Silly.

Grice KNEW his program was about 'hermeneutic'. He should HAVE used and loved that word, since, hey, it's Peri hermeneias by Aristotle that he would discuss. Although his heart went for the "Categoriae". (Same volume in Loeb Classical Library!). Yet, he would rather be seen dead than using such a heavy continental word of Husserlian overtones.

When Ogden/Richards published their "Meaning of Meaning" (back in 1923), it was all about Husserl, but Grice was Oxonianly contaminated!

Grice and Hohfeld on liability

by J. L. Speranza
-- for the Grice Club.

KRAMER, comment in 'ex ante, ex post', refers to 'arms' length' and 'good faith' and I agree. He notes:

"So that the parties will not later
disagree on the meaning of what they have said to each other, they say it explicitly. The distinguishing feature, I think,
is the need for detailed precision, not anything to do with helpfulness."

Oddly, my American friend (I have more than one, but you get my draft), thinks it's all about LIABILITY!

---

Oddly, Hohfeld uses 'liability', but his system is so complex than the much less elaborate Hartian in me gets scared!

When H. L. A. Hart succeeded Goodhart as Professor of Jurisprudence at Oxford, they said, "Goodhart without the good".

--- Oddly, Grice LIKED Hart! -- Personally, I always was SCARED of Hart. My tutor would quote him, and everybody would quote him, authoritatively. It seemed that all Hart said was 'sacred word'. But then one reads N. Lacey's bio of the man, and sees that he was so full of doubts!

--- Hart was from a higher class than Grice. They never met before the war, since Grice was stuck in Corpus Christi, while Hart was flirting with Ayer and Berlin at the creme de la creme. Ah well.

What has 'liable' to do with this?

It seems that the expectations are there, and the need of precision is instrumental to this protection from liability. Hohfeld uses 'liability' differently, though. Perhaps. From the wiki under 'correlative':

"Hohfeld linked each entitlement to a corelative and its opposite."


Elements ----- Correlatives ------ Opposites
Right --- Duty ------ No Right
Privilege or Liberty -- No Right ---- Duty
Power -- Liability --- Disability
Immunity ----- Disability ------ Liability

-- How this translates into something like the utilitarian ethics on which Grice's cooperative (he want it or not) depends may require some thought, or not!

[edit] References

Grice and Kramer (vs. Smith) on maximal cooperativeness

by J. L. Speranza
-- for the Grice Club.

KRAMER ("Grice ex post facto, ex ante facto", comment, this blog) notes brilliantly against H. Smith (of the Harvard Law School) and his simplistic interpretation of common-or-garden Grice (for lawyers) -- don't you hate it when someone from a discipine quotes, very superficially, someone from ANOTHER discipline just to show off? Oddly, Grice is being so naif in his remarks that they hardly count as 'philosophical'. They are commonsensical remarks that he AIMS to put to philosophical use, some day.

Kramer takes issue with Smith's sordid distinction between cooperative (or 'conversational') and 'legal'!

It's like when this Argentine starlet (Katya Alemann) said that 'marriage is an affront to love: if I marry you it is because I distrust your love' -- or something.

Kramer notes:

"If A asks B to build him a house for
a price, the most helpful thing that
B can do, I think, is to offer A a fully
explicit contract outlining precisely"

FIRSt:

"what will be done,"

SECOND:

"by when,"

THIRD:

"with what guarantees,"

FOURTH:

"for what price,"

and

FIFTH:

"paid on what terms."


-- Kramer comments:

"The degree of explicitness in the response is not "uncooperative"; rather it is contextually calibrated to be maximally helpful."

Excellent.

Perhaps the problem is that Grice should ultimately care just about 'assertion' and the like, e.g. 'directive', in their most general terms.

I say "p".

I state that p. Etc.

--- Surely the itemisation of things (or 'items') is not something that follows ordinarily in an order or other (incidentally -- when we say 'ordinary' language, what ORDER are we implicating? I know the answer, but I still wonder -- cfr. extra-ordinary).

Kramer:

"If A asks B to build him a house for
a price,"

-- i.e. this seems like a SPECIFIC speech act. Hardly your common or garden assertion ("I state that p") or directive ("I direct you to p" -- or something). The more specific the speech act, the more specific the 'felicity' conditions, as it were:


FIRST:

"what will be done,"

"I want you to build me a villa, Tuscan style".

SECOND:

"by when,"

"by the midnight of February 16, 2012"

THIRD:

"with what guarantees,"

My grandmother?

FOURTH:

"for what price,"

in Euros? at what rate?

and

FIFTH:

"paid on what terms."

Four installment, one (25%) in advance.

----

But if I say,

"It is raining".

I Kant hardly be asked to be so explicit. Hence the impliciture, as it were.

-----

WHY GRICE CARED ABOUT THESE.

i. His own personal drama with pillar boxes being red and seeming red.

----- A: That pillar box seems red.

"unhelpful" or uncooperative if A sees it red.

ii. His conversational drama with Strawson:

----- A: if p, q
-- B: But there is no reason for q to follow from p.
-- A: I never SAID there was
--------- (defense of 'if' as the 'horseshoe' of logic).

Etc.

-----

Sometimes it's never clear what conversational context Grice is bringing and to what avail.

Conversations with philosophers -- especially at tutorials -- can be so CONFUSING that I would, for one, NOT rely on what Grice is 'patronising' about 'rational principles governing discourse' like that!

The whole point of being an Oxonian philosoper is to FLOUT those principles time and again -- and get away with it!

Grice's Stranded Car

-- by J. L. Speranza
---- for the Grice Club.

I AM CONSIDERING KRAMER (comment, ex post facto/ex ante facto, post, this blog):

A: I am out of petrol.
B: I don't care.

Vis a vis, now, Grice's WoW:29.

"If you pass by [or approach me] when I am
struggling with my stranded car"

or standing by it, obviously immobilised as [she] is --

Grice goes on,

"I no doubt have some degree of
EXPECTATION"

--- this is Grice's key word --

"that you will offer help."'

Why? Benevolence, rather than self-love.

"But once you join me in tinkering under
the hood, my expectations become stronger"

---

rather than vanish.

Grice goes on:

"(in the absence of indications that you
are merely an incompetent meddler)"

-- or an innocuous otiose one:

A: I am out of petrol, if I may say [This seems otiose to me, in that there seems to be no need. I would rather go, echoing Horn, "Needless to say..." and stop at that].

B: So?

A: Well, ...

B: Well, what?

A: I wonder if you would care to let me know
---- if there is any garage near by?

B: Yes, my house.

A: I don't mean a private garage. I mean
--- what you Americans call a 'gas station'.

B: You mean an 'open' one? It's Sunday, you know. And 4 a.m.

A: No. I don't EXPLICITLY mean 'open'. I mean IMPLICITLY
--- open, if I must.

B: Open to what?

A: To the selling and buying of petrol, or 'gas' as you may
-- have it.

B: Petrol petrol?

A: Get lost.


-----

So the problem here is Leech. As he notes in his pluralistic "Principles of Pragmatics",

"I am out of petrol"

is ambiguous. First, as M. Dascal notes, in American English, this is used metaphorically to mean, "My inspiration is gone". "I'm out of fuel", out of the blue, is hardly LITERAL.

Strictly, it's

"My car is out of petrol".

---

This is supposed to provide a reason why A has stopped the car, involuntarily, in front of B's yard.

---

"I don't care. And you better move this sh*t right now outta here, or I'll report you to 911."

----

It seems Grice is being disingenous about the "There is a garage round the corner". First, strictly, it is "Around" not, 'round' the corner. The 'round' sounds too informal. And why should one TRUST a total strange with informal speech habits.

----

A: I am out of petrol, in case you care to help me and
-- let me know where the f*ck I may get some blooming
-- petrol.

B: I don't care.

Care about what?

-- B does not care that A's car is out of petrol. But he has APPROACHED A who is standing by the immobiised car. So what does HE implicate? Why be so unnecessarily rude?

----

As it happens, Grice owned a Volswagen. Oddly, he used it more as a philosophical milieu than as a means of transportation. He would park it, immobilised, in front of his house, and just philosophise there, if you can believe this!

Arendt, Jaspers, Eichmann, and ex-post-facto law

By Lawrence Helm

           When one considers the Eichmann case, one is faced with the fact that Eichmann was being tried by a nation that didn't exist at the time he committed the "crimes" he was being charged with.  Beyond that, the laws defining those crimes were established by this nation that didn't exist (when he committed them) in 1950, at least five years after Eichmann committed them.  The trial itself commenced in 1961, at least 16 years after Eichmann committed them.

            On page 269 of Eichmann in Jerusalem, Arendt writes, "Jaspers proposed that the court in Jerusalem, after hearing the factual evidence, 'waive' the right to pass sentence, declaring itself 'incompetent' to do so, because the legal nature of the crime in question was still open to dispute, as was the subsequent question of who would be competent to pass sentence on a crime which had been committed on government orders.  Jaspers stated further that one thing alone was certain: 'This crime is both more and less than common murder,'  and though it was not a 'war crime,' either, there was no doubt that 'mankind would certainly be destroyed if states were permitted to perpetrate such crimes.'

            "Jaspers' proposal, which no one in Israel even bothered to discuss, would, in this form, presumably have been impracticable from a purely technical point of view.  The question of a court's jurisdiction must be decided before the trial begins; and once a court has been declared competent, it must also pass judgment.  However, these purely formalistic objections could easily have been met if Jaspers had called not upon the court, but rather upon the state of Israel to waive its right to carry out the sentence once it had been handed down, in view of the unprecedented nature of the court's findings.  Israel might then have had recourse to the United Nations and demonstrated, with all the evidence at hand, that the need for an international criminal court was imperative, in view of these new crimes committed against mankind as a whole."

            I like Jaspers' proposal, but Arendt writes that he was being unrealistic.  Not only did no international court exist, but the U.N. had twice rejected proposals to consider the establishment of one.  Beyond that, Arendt writes on page 271, ". . . for Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man -- rights which, as no one knew better than they, were claimed only by people who were too weak to defend their 'rights of Englishmen' and to enforce their own laws. (The very fact that Israel had her own law under which such a trial could be held had been called, long before the Eichmann trial, an expression of 'a revolutionary transformation that has taken place in the political position of the Jewish people' -- by Mr. Rosen on the occasion of the First Reading of the Law of 1950 in the Knesset.)  It was against the background of these very vivid experiences and aspirations that Ben-Gurion said: 'Israel does not need the protection of an International Court.'"

            COMMENT:  I would like to agree with Jaspers.  He answers all of my objections, but from a pragmatic point of view (as Arendt tells us) his recommendations would not work.  Beyond that there was the emotion coloring those times, as exemplified by Arendt's description of Ben Gurion.  All of which may mean that I needn't worry about what went on during the Eichmann and Nuremberg trials setting a precedent (fraught with a labyrinth of difficulties) of "victor's justice" because the "crimes" committed by the Nazis were unique in modern human history.

            But as soon as I write that I recall similar crimes committed by modern-day Islamists: cutting off the heads of hapless captives, blowing up civilians, etc.  But perhaps we have laws in place to deal with these modern crimes -- as we moved from treating them as civil crimes during the Clinton Administration to "war crimes" during the Bush and Obama administrations. 

            And just as there are probably few worrying about whether Eichmann and the other Nazis received fair trials, there will be few who will worry about the fair trials of captured Islamists who committed similar crimes.

"I am out of petrol", "I don't care" -- Grice on uncooperative

by J. L. Speranza
-- for the Grice Club

PERHAPS THE FIRST (or 'first') example by Grice of 'implicature' is:

A: I am out of petrol.
B: There is a garage round the corner.

As Kramer points out, "Grice on ex ante and post ante", commentary, this blog:

"[I]f f A asks B for help in the form
of information, and B chooses not to
provide it, B may respond "I don't
care." This is certainly unhelpful, but
it's terse, true, relevant, and clear. What
more could a Gricean want?"

Exactly. I mean, I should reply, "What more could a Gricean want?". But by commenting, "Exactly," I implicate, NOTH more!

----

Back to Grice's example:

He describes it as an "example[...] in which no maxim
is violated, or at least in which it is not clear that
any maxim is violated. A is standing by by
obviously immobilised car and is approached by B. ...
B would be infringing the maxim, 'be relevant', unless
[B] thinks, or thinks it possible, that the garage
is open, and has petro to sell."

The 'unstated connection' (as Grice puts it, p. 32) -- i.e. strictly, the enthymeme that we have been discussing with Kramer -- is 'obvious' (unlike, Grice thinks, "He hasn't been to prison yet"). Indeed, it is "SO" obvious that 'be perspicuous' should not be deemed as having been 'infringed'.

Now for Kramer's variant:

A: I am out of petrol.
B: I don't care.

-----

Note that B, in Grice's scenario, is "approach[ing] A". I.e. "A is standing BY an obviously immobilised car and is approached by B".

Under those circumstances, "I don't care" sounds _odd_?

"Just following unjust orders": the implicatures of deontic Grice

by J. L. Speranza
-- for the Grice Club.

From the link provided by Kramer, "Breaking the law" (comment, this blog):

http://www.eichmannprosecutorinterview.org/part_three.html

There is "[e]vidence that Eichmann, who claimed just to be following orders," also did four other things:

FIRST,

Eichmann "overrule[s] the Regent of Hungary
to insure the deportation of a trainload of Hungarian Jew."

SECOND,

Eichmann "[d]isregard[s] the directions of
the head of the SS, Heinrich Himmler, for which
he was reprimanded, when those directions
would have spared Jewish live."

THIRD,

Eichmann "[t]rie[s] to frustrate the
directive of another superior, Ernst
Kaltenbrunner, with respect to
killing captured Jewish parachutists."

FOURTH,

"On one occasion, [Eichmann] even undermine[s] an
agreement which Hitler had reached with the
Hungarian Regent which would have saved 8,700 Jewish
Hungarian families."

----

Implicatures of 'only':

Is 'only' equivalent with 'just'?

i. I was just following orders.
ii. I was ONLY following orders.

---

Is there a scalar implicature:

cfr.

'merely'.

iii. I was merely following orders.

Grice on contrastive stress:

"I was not following orders; I was MERELY following orders" (WoW:iii -- Stress, adapted).

IMPLICATURE:

"regardless of whether the order was ... whatever".

---

Oddly, I discussed all this vis a vis Habermas in my "Strategy" essay that Habermas cared to quote in his "Pragmatics of Communication". For Habermas, as once blogger (elsehwere) has it, "Habemas walks in where Grice fears to tread".

For Habermas it is VALIDITY claims, and righteousness (Richtigkeit) is just one of them!

I approached Habermas about this (at the Goethe Institute) with words to the effect, "Surely your four validity claims have something more than a mere resemblance to Grice's scheme".

Perhaps 'scheme' was the wrong word to use -- in German!

---

In any case, he seems to have felt superior to Grice in that Grice is liberal enough NOT to bring in 'moral' issues to the cooperative principle!

Consider the irritating passage in Grice, WoW:ii later sort of overridden in the Retrospective Epilogue.

He refers to things like

"Be polite"

and other maxims as being 'aesthetic' or "moral" in character. I.e. he is suggesting that there are "MORAL maxims" which his 'conversational' maxims are NOT!

Try to tell your son that 'Try to make your contribution one that is true' is IMMORAL!

Deontic Grice

by J. L. Speranza
for the Grice Club.

KRAMER WAS SUGGESTING THAT SPERANZA (i.e. _me_) would enjoy this American jurisprudential philosopher. I did!

I also enjoy Grice! Kramer refers to 'ex post facto' and 'principle', etc. For the record, this in wiki's entry under 'ex post facto': It has the 1 and 2 sub-clause type of thing that should appeal Kramer (and Grice):


"Nuremberg Principles I & II state:"

"1. Any person who commits an act which
constitutes a crime under international law
is responsible therefore and liable to
punishment."

"2. The fact that internal law does
not impose a penalty for an act which
constitutes a crime under international law
does not relieve the person who
committed the act from
responsibility under international law".

--- This should be clear enough. But try to formalise it deontically. Plus, we need chrnological indexes, methinks. It seems that

the national-international distinction

confuses things, theoretically.

It would seem enough, from a conceptual point of view, to consider time variants. I.e.

law L1 at time t1

law L2 at time t2.

-----

Thus, from the same wiki entry, vis a vis:

Feuerbach, Bayern, 1813:

Nullum crimen, nulla poena sine praevia
lege poenali

("No crime, no punishment without a previous penal law")

"In the legal systems of ... Europe where the maxim was
first developed, "penal law" was taken to
mean statutory penal law, so as to create
a guarantee to the individual, considered as
a fundamental right, that he would not
be prosecuted for an action (or omission) that
was not considered a crime according to
the statutes passed by the legislators
in force at the time of the action (or
omission), and that only those penalties
that were in place when the infringement took
place would be applied."

Now, try to formalise the thing using explicit chronological operators. Do not forget to bring in psychological attitudes: what agent THINKS is unlawful (as in 'manifestedly' unlawful, etc.).

Refs.
-- The abduction of Eichmann from Argentina.
-- The abduction of Figaro, by Bach.

Time-relativity and Grice: ex ante, ex post

by J. L. Speranza
-- for the Grice Club.

I AM CONSIDERING KRAMER (comment, "Following the orders -- breaking the law", this blog) regarding ex post and ex ante.

From the wiki entry on 'moral hazard' at:

http://en.wikipedia.org/wiki/Moral_hazard

"Two types of behavior can change. One type
is the risky behavior itself, resulting in
what is called ex ante moral hazard."

The other is of course 'ex post' moral hazard.

EX ANTE. The easy one:

"In [the] case [of ex ante], insured parties
behave in a more risky manner, resulting in
more negative consequences that the insurer must
pay for."

Example 1:

"After purchasing automobile insurance, some
may tend to be less careful about locking the
automobile or choose to drive more, thereby
increasing the risk of theft or an accident for
the insurer."

Example 2:

After purchasing fire insurance, some may
tend to be less careful about preventing
fires (say, by smoking in bed or neglecting
to replace the batteries in fire alarms)."

------

THE OTHER HAZARD. THe controversial one: 'ex post':

"[The] second type of behavior that may change
[i.e. ex post moral hazard]
is the reaction to the negative consequences of risk,
once they have occurred and once insurance is
provided to cover their costs."

"In this case, insured parties do not behave
in a more risky manner that results in more
negative consequences, but they do ask an
insurer to pay for more of the negative
consequences from risk as insurance
coverage increases."

Example 1:

"Without medical insurance, some may forego
medical treatment due to its costs and simply
deal with substandard health. But after medical
insurance becomes available, some may ask
an insurance provider to pay for the cost of
medical treatment that would not have occurred otherwise."

-- Is this legal. Course it is!

GENERALISING the pattern:

Leave it to Psgrice!

Grice on ex ante and ex post

By J. L. Speranza
-- for the Grice Club.

THANKS TO LARRY J. KRAMER FOR BRINGING HIS EXPERTISE and wit re: ex post facto and ex ante facto. For the record, this is Grice:

From

http://legalworkshop.org/2010/02/22/2123

--

H. Smith, of the Harvard Law School, is discussing precisely the ex-ante/ex-post distinction:

"[D]etermination of similarity in central
claiming is typically left for ex post
decisionmaking, which allows for more flexibility
but at the cost (so it is conventionally thought)
of less ex ante certainty."

--- where Grice dovetails:

"Claiming intellectual property is an example of
noncooperative communication which generally cuts
in favor of formal communication."

WHY? Because the law is hardly conversational!

"In a cooperative
setting," Smith notes,

"one can assume that the [addresee] will fill
in ['information'] and draw inferences in a
charitable fashion. At the center of the study
of the “logic of conversation” is Grice’s
Cooperative Principle: “Make your conversational contribution such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged.” (note)."

"That is, the interpreter will interpret in
accordance with the assumption that the
[utterer] is trying to be helpful."

A: I’m out of gas.
B: There is a gas station around the corner.

"we and Person A can safely conclude that it is open,
because otherwise Person B would be violating the
Cooperative Principle and the maxims of conversation."

Grice adds,

"And has petrol to sell". For surely it could be around the corner, and open, but selling candy instead. (WoW:ii).

Smith:

"But legal interpretation is not like
this. Disingenuousness of [utterer] and
[addressee] is almost to be presumed. The “logic
of legal conversation”"

-- if a conversation it is! --

"diverges from the ordinary conversation studied
by Grice. Reliance on central claiming and claiming
by exemplar requires context to be filled in
and inferences to be drawn. In an adversarial context,
it is difficult to converge on the relevant context
and these pragmatic inferences, because
each party — patentee and alleged infringer, say —- has
different incentives as to how to fill these items. The
noncooperative nature of much of legal"

-- never moral!

"communication probably accounts for some of its
formality. And legal language in general often
relies on a more rigid analogue of pragmatic-style
inference. The linguistic study of pragmatics focuses on
language meaning in context, as distinct from
the study of more formal meaning in semantics. In legal
language a lot of what would be loose pragmatics is
regimented into the semantics."

-- just to make Humpty unhappy!

Whether following orders "breaks the law"

By Lawrence Helm

 

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.

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. 

Befehl ist Befehl

---

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.

"Just following orders" revisited

 By Lawrence Helm

            Now that Speranza has referred to some of my blog posts about Eichmann, I suppose I ought to say something.  When someone today says that she goes into a rage when some soldier says they were only following orders, I wonder if they haven' fallen into a time-loop from the Anti-War 60s.  The anti-American Communist Party-Line coming has collapsed; so if one wants to know what the Party "would have said" they must warm up some 60s instructions.

            Consider the problem in France after World War II [from page 201 of Beevor & Cooper's Paris, After the Liberation, 1944-1949]: "Communist attempts to establish a monopoly of working-class leadership were damaged from an unexpected direction.  The centerpiece of their propaganda in 1945 was the heroism of the Red Army.  But when the party strove to win over the recently returned prisoners of war and deportees, it discovered that many had returned to France horrified by the rape, looting and murder they had witnessed in the Soviet zone of occupied Germany.  Their stories spread.  Communist leaders in Paris were beside themselves with rage.  'No word against the Red Army must be permitted!' thundered Andre Marty at a mass meeting.  Posters appeared attacking those 'cynical Hitlerian scoundrels' who had infiltrated themselves 'to spread anti-Soviet calumnies' against 'the soldiers of the glorious Red Army who have saved the civilized world'."

            Earlier, beginning on page 197, Beevor and Cantor tell us, "In 1945, the French Communist Party was the most powerful political organization in the country, controlling a number of front organizations -- the National Front, the Union of French Women, the Union of French Republican Youth, a veterans' association and most of the largest unions within the CGT, the Confederation Generale du Travail.  But there were some striking weaknesses, especially in Paris and its suburbs, where membership had not even climbed back to the level of 1938.  Benoit Frachon, the Communist head of the CGT trades union movement, reported to Moscow: 'the principle reason . . . is due to a certain temporary disappointment among workers.  The workers were counting on a fundamental revolution in France and on social liberation immediately after the Germans were chased out.'  But what Frachon does not mention is that the loss of workers in the ceinture rouge suburbs was greater than acknowledge.  Their loss was partly camouflaged by the number of intellectuals joining the party in central Paris." 

            On page 200, Beevor and Cantor tell us the Communist Party was in an ideal position to make their "orders" available not only to the French Communists, but to the ordinary public.  Some of us in American worry about our "Press" being dominated by our anti-American "Left," but the French were in even worse straits after the war:  "The opportunities for expansion had been greatly increased at the Liberation, when buildings belonging to collaborationist organizations were expropriated.  The party's daily newspaper L'Humanite, for example, took over the building in the rue d'Enghien which had belonged to the populist newspaper Le Petit Parisien.

            "The Party owned a bank, the Banque du Nord, and a shipping line, France Navigation, which had been taken over during the Spanish Civil War, and was almost certainly bought with part of the gold reserves of the Spanish Republic, used to purchase Soviet military supplies. 

            "The party's publishing empire was huge, both in Paris and in the provinces.  It had twelve daily newspapers and forty-seven weeklies.  In addition, the Communist-run coalition, the National Front, had seventeen weeklies, all tightly controlled.  Instructions for 'political orientation' were issued each day to all provincial newspapers controlled by their front organization."

            COMMENT:  Note that the "rage" the French Communist party went into was after learning that some returning prisoners of war and deportees might report on the Red Army's "rape, looting and murder" they had witnessed.  This "rage" was directed against the witnesses to these rapes, lootings and murders and not against the Red-Army soldiers who committed these crimes.  Did this aforementioned lady who feels rage when she hears some [presumably American] soldier say "I was only following orders" (where she hears this she doesn't say) also feel rage when she heard about the aforementioned deprivations of the Red Army?

            The cynicism of the Left warming-over the 60s era Communist Party Line might put me into a rage if I was inclined to feel rage; which I am not.  I am merely a former Marine who has been interested in defending my country's interests.  I'll leave the "violence" and "rage" to the anti-American Pacifist Left.

            NOTE:  I've left intact the R. Paul-Speranza's research on the matter of whether a soldier ought always to obey superior.  Note that this information appears on an American military web site.  The French Communists issuing the daily "orders" to a gullible French public knew their beloved Red Army would never offer such information to their soldiers.

Lawrence Helm

-----Original Message-----
From: Jlsperanza
Sent: Monday, May 24, 2010 3:19 PM

[cut]

In an earlier message dated 5/24/2010 6:45:47 P.M.,  [R. Paul writes]:

The phrase 'I was only following orders,' became  Eichmann's refrain in

Jerusalem, and nearly the only defense of his actions he  offered. In fact, I'd

say it was he who contributed it to the lexicon of  cynicism.

----

I think if you write "Speranza Eichmann" in google  you get Helm's hit!

--- So blame HIM!

But then there's 

'due obedience'. What does it stand for:

"I was only doing my  job".

Some fragments from the wiki entry on 'superior orders', below.

J. L. Speranza, Bordighera, etc.

---

            "Superior Orders (often known as the Nuremberg Defense or Lawful  Orders)

is a plea in a court of law that a soldier not be held guilty for  actions

which were ordered by a superior office.[1]"

            "The superior orders defense is similar to the doctrine of respondeat 

superior in tort law where a superior is held liable for the actions of a 

subordinate, and the subordinate may escape liability.[2] Legal scholars and war 

crimes tribunals define the superior orders plea as the complement to

Command  responsibility and may correlate or distinguish the plea from the

doctrine of  respondeat superior.[3]"

            "One of the most noted uses of this defense was by the accused in the 

1945-46 Nuremberg Trials, such that it is also called the "Nuremberg Defense." 

The Nuremberg Trials were a series of military tribunals, held by the main 

victorious Allied forces of World War II, most notable for the prosecution

of  prominent members of the political, military, and economic leadership of

the  defeated Nazi Germany. It was during these trials, under the London

Charter of  the International Military Tribunal which set them up, that the

defense of  "Superior Orders" was no longer considered enough to escape

punishment; but  merely enough to lessen punishment.[4]"

            "However, the defense of "Superior Orders" has been used both before  and

after the Nuremberg Trials."

            "The trial of Peter von Hagenbach

            See also: Command  responsibility

Hagenbach on trial, from Berner Chronik des Diebold  Schilling dem Älteren

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.[5][6] 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.[7][8] 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.[10] This defense was

rejected."

            "On June 4, 1921, the legal doctrine of "Superior Orders" was used during 

the German Military Trials that took place after World War I: One of the

most  famous of these trials was the matter of Lieutenant Karl Neumann, who was

a  U-Boat Captain responsible for the sinking of the Hospital ship, the

Dover  Castle.[11] Even though he frankly admitted to having sunk the ship, he

stated  that he had done so on the basis of orders supplied to him by the

German  Admiralty; and as such, he could not be held liable for his actions.

The Leipsic  Supreme Court (Germany's Supreme Court) acquitted him, accepting

the defense of  superior orders as a grounds to escape criminal

liability.[12] Further, that  very Court had this to say in the matter of Superior

Orders:

            "… that all  civilized nations recognize the principle that a subordinate

is covered by the  orders of his superiors.[13]

Many accused of war crimes were acquitted on a  similar defense, creating

immense dissatisfaction amongst the Allies; this has  been thought to be one

of the main causes for the specific removal of this  defense in the London

Charter of the International Military Tribunal, which has  been attributed to

the actions of Robert H. Jackson, a Justice of the United  States Supreme

Court, who was appointed Chief Prosecutor at the Nuremberg  Trials."

            "In 1945 and 1946, during the Nuremberg Trials the issue of Superior Orders

 again arose: These trials gained so much attention that the "Superior

Orders  defense" has subsequently become interchangeable with the label,

"Nuremberg  Defense." 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."

            "Before the end of World War II, the Allies suspected such a defense  might

be employed, and issued the London Charter of the International Military 

Tribunal (IMT), which specifically stated that following an unlawful order is

 not a valid defense against charges of war crimes.

Thus, under Nuremberg  Principle IV, "defense of superior orders" is not a

defense for war crimes,  although it might influence a sentencing authority

to lessen the penalty.  Nuremberg Principle IV states:

"The fact that a person acted pursuant to  order of his Government or of a

superior does not relieve him from  responsibility under international law,

provided a moral choice was in fact  possible to him."

            During the Nuremberg trials, Wilhelm Keitel, Alfred Jodl  and other

defendants unsuccessfully used the defense.

            (Before the trials,  there was little consensus amongst the Allies as to

what was to be done with the  Nazi war prisoners. Winston Churchill was

inclined to have the leaders 'executed  as outlaws'.[14] The Soviets desired

trials, but wished there to be a  presumption of guilt, as opposed to the

procedural presumption of innocence that  accompanies most western criminal

trials.[15])"

            "The defense of "Superior Orders" again arose in the 1961 trial of  Adolf

Eichmann in Israel, as well as the trial of Alfredo Astiz of Argentina, 

responsible for a large number of disappearances and kidnappings that took place

 during that nation's transfer to democracy.

            Following the My Lai Massacre in  1968, the defense was employed during the

court martial of William Calley. Some  have argued that the outcome of the

My Lai Massacre courts martial was a  reversal of the laws of war that were

set forth in the Nuremberg and Tokyo War  Crimes Tribunals.[16] Secretary of

the Army Howard Callaway was quoted in the  New York Times as stating that

Calley's sentence was reduced because Calley  honestly believed that what he

did was a part of his orders — a rationale that  stands in direct

contradiction of the standards set at Nuremberg and Tokyo,  where German and Japanese

soldiers were executed for similar acts.

            In 1996,  the "Superior Orders" defense was successfully used by Erich

Priebke, although  the verdict was appealed and he was later convicted[citation

needed]. It was  used with varying degrees of success by those involved in

the Hostages  Trial[citation needed]."

            "The 1998 Rome Statute of the International Criminal Court

It could  be argued that a version of the Superior Orders defense can be

found as a  defense to international crimes in the Rome Statute of the

International  Criminal Court. (The Rome Statute was agreed upon in 1998 as the

foundational  document of the International Criminal Court, established to try

those  individuals accused of serious international crimes.) Article 33,

titled  "Superior Orders and prescription of law,"[17] states:"

----

            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:

            (a) The person was under a legal obligation to obey orders of the 

Government or the superior in question;

            (b) The person did not know that the order was unlawful; and

            (c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes 

against humanity are manifestly unlawful.

-----

            There are two interpretations of this Article:

            This formulation, especially (1)(a), whilst effectively prohibiting the use

 of the Nuremberg Defense in relation to charges of genocide and crimes

against  humanity, does however, appear to allow the Nuremberg Defense to be

used as a  protection against charges of war crimes, provided the relevant

criteria are  met.

            Nevertheless, this interpretation of ICC Article 33 is open to debate:  For

example Article 33 (1)(c) protects the defendant only if "the order was not

 manifestly unlawful." The "order" could be considered "unlawful" if we

consider  Nuremberg Principle IV to be the applicable "law" in this case. If

so, then the  defendant is not protected. Discussion as to whether or not

Nuremberg Prinicple  IV is the applicable law in this case is found in a

discussion of the Nuremberg  Principles' power or lack of power.

            "Nuremberg Principle IV, and its reference to an individual's 

responsibility, was at issue in Canada in the case of Hinzman v. Canada. Jeremy  Hinzman

was a U.S. Army deserter who claimed refugee status in Canada as a 

conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, (at  that

time Jeffry House), had previously raised the issue of the legality of the 

Iraq War as having a bearing on their case. The Federal Court ruling was 

released on March 31, 2006, and denied the refugee status claim.[18][19] In

the  decision, Justice Anne L. Mactavish addressed the issue of personal 

responsibility:

            "An individual must be involved at the policy-making level to  be culpable

for a crime against peace ... the ordinary foot soldier is not  expected to

make his or her own personal assessment as to the legality of a  conflict.

Similarly, such an individual cannot be held criminally responsible  for

fighting in support of an illegal war, assuming that his or her personal 

war-time conduct is otherwise proper."[18] [20]"

            "On Nov 15, 2007, a quorum of the Supreme Court of Canada made of Justices 

Michel Bastarache, Rosalie Abella, and Louise Charron refused an

application to  have the Court hear the case on appeal, without giving reasons.[21] 

[22]

            "... in written arguments to the Supreme Court of Canada, Mr. House pointed

 out that although our courts have so far refused to grant refugee status

to  Americans soldiers who are deserting military duty out of moral objection

to the  war in Iraq, in 1995 the Federal Court of Appeal granted refugee

status to a  deserter from Saddam Hussein's armed incursion into Kuwait, on

the basis that he  should not be compelled to take part in an illegal war.

            "The courts are taking one stance for Saddam Hussein's soldiers and another

 one entirely for American soldiers," Mr. House said.[23]

See also: Jeremy  Hinzman, Anne L. Mactavish, and Canada and Iraq War

resisters

            "In June 2006, during the Iraq War, Ehren Watada refused to go to Iraq on 

account of his belief that the Iraq war was a crime against peace (waging a

war  of aggression for territorial aggrandizement), which he believed could

make him  liable for prosecution under the command responsibility doctrine.

In this case,  the judge ruled that soldiers, in general, are not

responsible for determining  whether the order to go to war itself is a lawful order -

but are only  responsible for those orders resulting in a specific

application of military  force, such as an order to shoot civilians, or to treat

POWs inconsistently with  the Geneva Conventions. This is consistent with the

Nuremberg Defense, as only  the civilian and military principals of the Axis

were charged with crimes  against peace, while subordinate military

officials were not so  charged.[24]

            Based on this principle international law developed the concept  of

individual criminal liability for war crimes which resulted in the current 

doctrine of command responsibility.[25][26][27]"

            "The below overview of history shows a notable lack of consistency in 

rulings on the issue of Superior Orders.

            This is an incomplete list [. . .]

(For overview purposes, the  below table attempts to capsulize much of the

history in the above article. It  is based on references above. To navigate

to those supporting references and  further information for each case, click

on "see details" for each  case.)

            DatePreceding ContextJurisdiction / decisionmakerDefendant(s) or 

case(s)[found] "responsible" despite Superior Orders[found] "not responsible" 

because of Superior Orders

1474

the occupation of Breisachad hoc tribunal of the Holy Roman EmpirePeter von

 Hagenbachyes (see details)

1921

World War IGermany's Supreme Court (trials after World War I)Lieutenant 

Karl Neumann and othersyes (see details)

1945

World War IINuremberg trials after World War IIall defendantsyes (see 

details)

1998

preparation for future casesRome Statute of the International Criminal 

Courtfuture cases under Article 33 of the Rome Statute of the International 

Criminal Courtpossibly in cases of genocide (see details)possibly in cases

other  than genocide (see details)

2006

Iraq WarJustice Anne L. Mactavish - Federal Court (Canada)Jeremy Hinzman 

(refugee applicant)equivalent to yes* (see details)

"*" Hinzman was not  on trial for something he did in battle. However, if

the principle of this  particular judge's ruling had applied to such a trial,

then Hinzman would have  been found "not responsible" because of Superior

Orders. (see details)"

"Arguments for and against"

            This "Superior Orders" defense is still used with the following  rationale

in the following scenario: An "order" may come from one's superior at  the

level of national law. But according to Nuremberg Principle IV, such an 

order is sometimes "unlawful" according to international law. Such an "unlawful 

order" presents a legal dilemma from which there is no legal escape: On one

 hand, a person who refuses such an unlawful order faces the possibility of

legal  punishment at the national level for refusing orders. On the other

hand, a  person who accepts such an unlawful order faces the possibility of

legal  punishment at the international level (eg. Nuremberg Trials) for

committing  unlawful acts. Therefore this is a Catch-22 legal dilemma.

Nuremberg  Principle II responds to that dilemma by stating: "The fact that

internal law  does not impose a penalty for an act which constitutes a

crime under  international law does not relieve the person who committed the act

from  responsibility under international law."[28]"

            "The above scenario might present a legal dilemma, but Nuremberg Principle 

IV speaks of "a moral choice" as being just as important as "legal"

decisions:  It states: "The fact that a person acted pursuant to order of his

Government or  of a superior does not relieve him from responsibility under

international law,  provided a moral choice was in fact possible to him"."

            "In "moral choices" or ethical dilemmas an ethical decision is often  made

by appealing to a "higher ethic" such as ethics in religion or secular 

ethics. One such "higher ethic," which is found in many religions and also in 

secular ethics, is the "ethic of reciprocity," or the Golden Rule. It states 

that one has a right to just treatment, and therefore has a reciprocal 

responsibility to ensure justice for others. "Higher ethics," such as those, 

could be used by an individual to solve the legal dilemma presented by the 

"Superior Orders" defense."

            "Another argument against the use of the "Superior Orders" defense (ie.  "I

was just following orders") is that it does not follow the traditional

legal  definitions and categories established under criminal law. Under criminal

law, a  principal is any actor who is primarily responsible for a criminal

offense.[29]  Such an actor is distinguished from others who may also be

subject to criminal  liability as accomplices, accessories or conspirators."

            "Nuremberg Principle IV, the international law which counters the  Superior

Orders defense, is legally supported by the jurisprudence found in  certain

articles in the Universal Declaration of Human Rights which deal 

indirectly with conscientious objection. It is also supported by the principles 

found in paragraph 171 of the Handbook on Procedures and Criteria for 

Determining Refugee Status which was issued by the Office of the United Nations  High

Commissioner for Refugees (UNHCR). Those principles deal with the 

conditions under which conscientious objectors can apply for refugee status in 

another country if they face persecution in their own country for refusing to 

participate in an illegal war."

            In popular culture

            "In the Christopher Buckley novel Thank You for Smoking and its film 

adaptation, the main character Nick Naylor justifies his career to a reporter by 

telling her that "Everybody has a mortgage to pay," and referring to his 

response as the "Yuppie Nuremberg Defense."

            "The play and film A Few Good Men revolves around the question of the 

culpability of officers giving orders which they knew to be illegal, and the 

culpability of the soldiers under their command for following such orders,

when  such orders resulted in unintended and unforeseen consequences."

"See also

Command responsibility

Milgram Experiment

Nuremberg  Principle IV

Nuremberg Principles

Peter von Hagenbach

Respondeat  superior

Vicarious liability"

References

^ See L.C. Green, Superior  Orders in National and International Law, (A.W.

Sijthoff International  Publishing Co., Netherlands, 1976)

^ See Harvard Law Review Editorial Board,  The Doctrine of Respondeat

Superior, Harvard Law Review, Vol. 17, No. 1. pp.  51-2, 17 Harv. L. Rev. 51

(Nov., 1903).

^ See James B. Insco, Defense of  Superior Orders Before Military

Commissions, Duke Journal of Comparative and  International Law, 13 DUKEJCIL 389

(Spring, 2003). Asserting in the author's  view that a respondeat superior

approach to superior orders is an  "underinclusive extreme."

^ H.T. King, Jr., The Legacy of Nuremberg, Case  Western Journal of

International Law, Vol. 34. (Fall 2002) at pg. 335.e

^ a b  The evolution of individual criminal responsibility under

international law By  Edoardo Greppi, Associate Professor of International Law at the

University of  Turin, Italy, International Committee of the Red Cross No.

835, p. 531-553,  October 30, 1999.

^ Exhibit highlights the first international war crimes  tribunal by Linda

Grant, Harvard Law Bulletin.

^ a b An Introduction to the  International Criminal Court William A.

Schabas, Cambridge University Press,  Third Edition

^ Command Responsibility The Mens Rea Requirement, By Eugenia  Levine,

Global Policy Forum, February 2005

^ Judge and master By Don Murray,  CBC News, July 18, 2002.

^ The Perennial Conflict Between International  Criminal Justice and

Realpolitik February 10, 2006 Draft by M. Cherif Bassiouni  -Distinguished

Research Professor of Law and President, International Human  Rights Law Institute,

DePaul University College of Law, To be Presented March  14, 2006 as the

38th Henry J. Miller Distinguished Lecture, Georgia State  University College

of Law, and to appear in the Georgia State University Law  Review

^ New York Times (June 5, 1921). "FREE MAN WHO SANK A HOSPITAL SHIP; 

Leipsic Judges Acquit Neumann on the Ground That He Acted Under Orders. HE 

ADMITTED TORPEDOING Prosecutor Demanded Acquittal, Calling Dover Castle Culpable 

in Carrying Wounded Soldiers.". New York Times. 

http://query.nytimes.com/gst/abstract.html?res=9C04EEDA1739E133A25756C0A9609C946095D6CF.  Retrieved 10

April 2010.

^ Anon., "German War Trials: Judgement in Case of  Commander Karl Neumann"

, The American Journal of International Law, Vol. 16, No.  4. (Oct., 1922)

at pg. 704-708.

^ G.A. Finch, Superior Orders and War Crimes,  The American Journal of

International Law, Vol. 15, No. 3. (Jul., 1921) at pg.  440-445.

^ "Churchill: execute Hitler without trial". The Times (Times  Newspapers

Limited). 2006-01-01. 

http://www.timesonline.co.uk/tol/news/uk/article784041.ece. Retrieved  2008-02-08.

^ K.C. Moghalu, Global Justice: The Politics of War Crime  Trials,

(Greenwood Publishers, 2006), sourced from Google Books.

^ Marshall,  Burke; Goldstein, Joseph (2 April 1976). "Learning From My

Lai: A Proposal on  War Crimes". The New York Times. p. 26.

^ Rome Statute of the International  Criminal Court (10 November 1998 and

12 July 1999). "Rome Statute of the  International Criminal Court; Part 3:

General Principles of Criminal Law;  Article 33: Superior orders and

prescription of law". Rome Statute of the  International Criminal Court. 

http://untreaty.un.org/cod/icc/statute/romefra.htm. Retrieved 21 March 2010. 

^ a b Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto's Now 

Magazine. 

http://www.nowtoronto.com/news/story.cfm?content=153504&archive=25,38,2006.  Retrieved 2008-06-02.

^ "Hinzman v. Canada (Minister of Citizenship and  Immigration) (F.C.),

2006 FC 420". Office of the Commisioner for Federal  Judicial Affairs. pp. (see

Held, Para. (1)). 

http://reports.fja.gc.ca/eng/2006/2006fc420/2006fc420.html. Retrieved  2008-06-16.

^ Hinzman v. Canada Federal Court decision. Paras (157) and  (158).

Accessed 2008-06-18

^ CBC News (2007-11-15). "Top court refuses to  hear cases of U.S.

deserters". CBC News. 

http://www.cbc.ca/canada/story/2007/11/15/hinzman-decision.html. Retrieved  2008-06-02.

^ "Supreme Court of Canada - Decisions - Bulletin of November  16, 2007,

(See Sections 32111 and 32112)". 

http://scc.lexum.umontreal.ca/en/bulletin/2007/07-11-16.bul/07-11-16.bul.html. 

^ Hill, Lawrence (November 24, 2007). "Just desertions". Ottawa Citizen. 

http://www.canada.com/ottawacitizen/news/story.html?id=16d90480-ccf6-4e3d-9848

-ae35143e7685&p=1.  Retrieved 30 January 2009.

^ Soldier's Iraq war stance backed: Watada has  right to refuse to go,

retired officer says, Seattle Post-Intelligencer, June  20, 2006.

^ Guilty Associations: Joint Criminal Enterprise, Command  Responsibility,

and the Development of International Criminal Law HTML version  by Allison

Marston Danner and Jenny S. Martinez, September 15, 2004

^ Command  Responsibility - An International Focus by Anne E. Mahle, PBS

^ Command,  superior and ministerial responsibility by Robin Rowland, CBC N

ews Online, May  6, 2004

^ International Committee of the Red Cross (ICRC) References  Principles of

International Law Recognized in the Charter of the Nüremberg  Tribunal and

in the Judgment of the Tribunal, 1950: Introduction

^ See, e.g.,  Superior Growers, 982 F.2d at 177-78; United States v. Campa,

679 F.2d 1006,  1013 (lst Cir. 1982).

External link

usmilitary.about.com: To Obey or Not to  Obey