The Storrs lectures: Liberals and romantics at war: The problem of collective guilt

Yale Law Journal

Volumn 111, Issue 7, 2002, Pages 1499-1570

  Fletcher, George P ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041735113     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797532     Document Type: Article

References (279)

1. ALMANAC SINGERS, The Ballad of October 16th, on SONGS FOR JOHN DOE (Almanac Records 1941).
2. TOM LEHRER, Send the Marines, on THAT WAS THE YEAR THAT WAS (Warner Bros. 1965).
3. NANCY ROSENBLUM, ANOTHER LIBERALISM: ROMANTICISM AND THE RECONSTRUCTION OF LIBERAL THOUGHT 11-12 (1987).
4. "Romanticism" is understood here as a frame of mind that antedated the historical flowering of Romantic thinking in the late eighteenth and early nineteenth centuries. For efforts to clarify this distinctive attitude toward the world, see infra text accompanying notes 22-39.
5. Contrary to popular belief, George Gordon Noel Byron (1788-1824) did not die in combat during the Greek war. He died of a chill received in an April rainstorm on the Greek island of Missolonghi. BENITA EISLER, BYRON 742-44 (1999).
6. Francis Lieber (1800-1872) was a German immigrant to the United States responsible for drafting the first rules of engagement for modern warfare, his General Order 100 of 1863, which became the guidebook for Union armies in the field. FRANCIS LIEBER, GENERAL ORDER NO. 100: INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (New York, D. Van Nostrand 1863). When the Revolution of 1848 broke out in Germany, he was lecturing at South Carolina College. According to legend, he broke out in tears and left immediately to fight in his homeland.
7. ARTHUR H. LANDIS, DEATH IN THE OLIVE GROVES: AMERICAN VOLUNTEERS IN THE SPANISH CIVIL WAR 1936-1939, at 4 (1989).
8. BARBARA EHRENREICH, BLOOD RITES: ORIGINS AND HISTORY OF THE PASSIONS OF WAR 13 (1997).
9. DR. STRANGELOVE (Hawk Films 1964).
10. APOCALYPSE NOW (Zoetrope Studios 1979).
11. SAVING PRIVATE RYAN (DreamWorks SKG 1998).
12. TOM BROKAW, THE GREATEST GENERATION (1998).
13. Pam Belluck, On a Sworn Mission Seeking Pretenders to Military Heroism, N.Y. TIMES, Aug. 10, 2001, at A1.
14. This shift from an aversion to a glorification of war was brought home to me in the classroom. When I was writing my book on loyalty in the late 1980s, I made some comments to my seminar at the Columbia Law School about the Vietnam War and the natural reaction of my generation to dissent from war and to avoid fighting. The students in their early twenties objected unanimously to my casual attitude toward the war. One of them said, "We regard your generation as unpatriotic."
15. These views are expressed by the liberal philosophers of law. The standard works are BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980), RONALD DWORKIN, LAW'S EMPIRE (1986), and JOHN RAWLS, A THEORY OF JUSTICE (1971). The advocates of economic thinking in the law are also liberal in the sense that the basic foundation of their analysis is individual preferences. The orthodox line is found in GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1972), and RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
16. These views are expressed by the liberal philosophers of law. The standard works are BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980), RONALD DWORKIN, LAW'S EMPIRE (1986), and JOHN RAWLS, A THEORY OF JUSTICE (1971). The advocates of economic thinking in the law are also liberal in the sense that the basic foundation of their analysis is individual preferences. The orthodox line is found in GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1972), and RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
17. These views are expressed by the liberal philosophers of law. The standard works are BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980), RONALD DWORKIN, LAW'S EMPIRE (1986), and JOHN RAWLS, A THEORY OF JUSTICE (1971). The advocates of economic thinking in the law are also liberal in the sense that the basic foundation of their analysis is individual preferences. The orthodox line is found in GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1972), and RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
18. These views are expressed by the liberal philosophers of law. The standard works are BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980), RONALD DWORKIN, LAW'S EMPIRE (1986), and JOHN RAWLS, A THEORY OF JUSTICE (1971). The advocates of economic thinking in the law are also liberal in the sense that the basic foundation of their analysis is individual preferences. The orthodox line is found in GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1972), and RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
19. These views are expressed by the liberal philosophers of law. The standard works are BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980), RONALD DWORKIN, LAW'S EMPIRE (1986), and JOHN RAWLS, A THEORY OF JUSTICE (1971). The advocates of economic thinking in the law are also liberal in the sense that the basic foundation of their analysis is individual preferences. The orthodox line is found in GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1972), and RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
20. JAMES Q. WHITMAN, THE LEGACY OF ROMAN LAW IN THE GERMAN ROMANTIC ERA (1990).
21. STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE (1990).
22. Vivian Grosswald Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, 7 COLUM. J. EUR. L. 63 (2001); see also Anne C. Dailey, Holmes and the Romantic Mind, 48 DUKE L.J. 429 (1998).
23. Vivian Grosswald Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, 7 COLUM. J. EUR. L. 63 (2001); see also Anne C. Dailey, Holmes and the Romantic Mind, 48 DUKE L.J. 429 (1998).
24. A search of the Allrev library on Lexis, January 10, 2002, revealed 499 citations to "liberalism" for the year 2001. A search of the same Lexis library on the same day disclosed 603 citations to "romanticism" for the entire time span of the Lexis collection.
25. E.g., Cynthia R. Farina, Getting from Here to There, 1991 DUKE L.J. 689, 709 (noting that civic republicanism had been accused of being "the worst sort of naïve romanticism"); Garrett O'Connor, The Psychology of Adolescent Addiction, 31 VAL. U. L. REV. 701, 712 (1997) (warning against regarding the descriptions of social conflict as based on "sentimentality or naïve romanticism").
26. E.g., Cynthia R. Farina, Getting from Here to There, 1991 DUKE L.J. 689, 709 (noting that civic republicanism had been accused of being "the worst sort of naïve romanticism"); Garrett O'Connor, The Psychology of Adolescent Addiction, 31 VAL. U. L. REV. 701, 712 (1997) (warning against regarding the descriptions of social conflict as based on "sentimentality or naïve romanticism").
27. There is some dissent from this view in the feminist emphasis on relationships as the framework for analysis of rights and responsibilities. The locus classicus of this critique is CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). See also MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991). The ethic of care, supposedly derived from Gilligan, provides the basis for a different methodology. See Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3, 30-36 (1988) (suggesting the imposition of a duty to rescue based on a feminist ethic of care and interconnection).
28. There is some dissent from this view in the feminist emphasis on relationships as the framework for analysis of rights and responsibilities. The locus classicus of this critique is CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). See also MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991). The ethic of care, supposedly derived from Gilligan, provides the basis for a different methodology. See Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3, 30-36 (1988) (suggesting the imposition of a duty to rescue based on a feminist ethic of care and interconnection).
29. There is some dissent from this view in the feminist emphasis on relationships as the framework for analysis of rights and responsibilities. The locus classicus of this critique is CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). See also MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991). The ethic of care, supposedly derived from Gilligan, provides the basis for a different methodology. See Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3, 30-36 (1988) (suggesting the imposition of a duty to rescue based on a feminist ethic of care and interconnection).
30. In the literature on the subject one finds considerable despair about defining Romanticism. E.g., ISAIAH BERLIN, THE ROOTS OF ROMANTICISM 17-22 (1999). For a skeptical analysis of Romanticism, see Seamus Perry, Romanticism: The Brief History of a Concept, in A COMPANION TO ROMANTICISM 3 (Duncan Wu ed., 1998).
31. In the literature on the subject one finds considerable despair about defining Romanticism. E.g., ISAIAH BERLIN, THE ROOTS OF ROMANTICISM 17-22 (1999). For a skeptical analysis of Romanticism, see Seamus Perry, Romanticism: The Brief History of a Concept, in A COMPANION TO ROMANTICISM 3 (Duncan Wu ed., 1998).
32. According to one definition of classicism in music, Haydn and Mozart are leading exemplary classical composers, and the style is characterized by "a concern for musical form with a greater emphasis on clarity with more concise melodic expression and clarity of instrumental color." Classical Net, Classicism, at http://www.classical.net/music/rep/defs/class.html (last visited Mar. 5, 2002).
33. BERLIN, supra note 22, at 95 ("[T]he only thing which is worthwhile . . . is the exfoliation of a particular self, its creative activity, . . . its creation of values, its dedication of itself to these values.").
34. The thesis about unique national cultures is expressed famously in Johann Gottfried Herder, Abhandlung ueber den Ursprung der Sprache [On the Origin of Language], in ON THE ORIGIN OF LANGUAGE 178 (John H. Moran & Alexander Gode trans., Frederick Ungar Publ'g Co. 1966) (1772).
35. Berlin summarizes the basic tenets of the Enlightenment as the faith (1) that all questions about the world have answers, (2) that these answers are knowable with the use of reason, and (3) that all these answers are compatible with one another. BERLIN, supra note 22, at 21-22. For an American used to our chaotic systems of weights and measures, the spirit of the Enlightenment is well suggested by the metric system, adopted in France in 1795, a system expressing a rational view of all units of distance, space, and weight as reducible to a single common denominator.
36. Berlin credits Hamann with being the first Romantic to attack the Enlightenment. See ISAIAH BERLIN, THREE CRITICS OF THE ENLIGHTENMENT 272 (2000).
37. Herder, supra note 25.
38. See Richard R. Niebuhr, Schleiermacher, Friedrich Daniel Ernst, in 7 ENCYCLOPEDIA OF PHILOSOPHY 316, 317 (Paul Edwards ed., 1967) (noting Schleiermacher's critique of Kant for devaluing "the particular and idiosyncratic").
39. The famous dramatist Friedrich von Schiller also wrote an essay on one of the characteristic concepts of the Romantic movement, the notion of the sublime. FRIEDRICH VON SCHILLER, NAÏVE AND SENTIMENTAL POETRY AND ON THE SUBLIME (Julius A. Elias trans., Frederick Ungar Publ'g Co. 1966) (1795).
40. WILLIAM WORDSWORTH, LYRICAL BALLADS, at xiv (Woodstock Books 1997) (1800). A conventional dating of the movement relies upon the publication of the first edition of Wordsworth's Lyrical Ballads in 1798.
41. WILLIAM WORDSWORTH, LYRICAL BALLADS, at xiv (Woodstock Books 1997) (1800). A conventional dating of the movement relies upon the publication of the first edition of Wordsworth's Lyrical Ballads in 1798.
42. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 72-74 (Maurice Cranson ed., St. Martin's Press 1968) (1762).
43. Significantly, in one of his earliest notable paintings, Massacre at Chios (painted in 1824), Delacroix centered on the themes of glory in warfare.
44. BERLIN, supra note 22, at 40.
45. Id. at 40-45.
46. Id. at 78 (discussing Schiller's adaptation of Kant).
47. FREDERICK CHARLES VON SAVIGNY, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE (Abraham Hayard trans., Legal Classics Library 1986) (1831).
48. KARL JASPERS, THE QUESTION OF GERMAN GUILT (E.B. Ashton trans., 1947).
49. MARGARET GILBERT, The Idea of Collective Guilt, in SOCIALITY AND RESPONSIBILITY 141 (2000).
50. Recognizing my own contradictory responses on these issues, I confess to great admiration of these liberal achievements. George P. Fletcher, In God's Image: The Religious Imperative of Equality Under Law, 99 COLUM. L. REV. 1608 (1999).
51. The lamp as a metaphor for the Romantic spirit is captured in the title of the influential book, MEYER ABRAMS, THE MIRROR AND THE LAMP: ROMANTIC THEORY AND THE CRITICAL TRADITION (1953).
52. See Herder, supra note 25.
53. See ROUSSEAU, supra note 32.
54. WILLIAM WORDSWORTH, The Convention of Cintra, in THE PROSE WORKS OF WILLIAM WORDSWORTH 191 (W.J.B. Owen & Jane Worthington Smyser eds., Oxford Univ. Press 1974) (1809).
55. WILLIAM SHAKESPEARE, HAMLET act 1, sc. 5, 11. 166-67, in 3 THE COMPLETE OXFORD SHAKESPEARE 1121, 1131-32 (Stanley Wells et al. eds., 1987) ("There are more things in heaven and earth, Horatio, than are dreamt of in our philosophy.").
56. THEODORE PARKER, The Slave Power, in THE SLAVE POWER 248, 250-54 (James K. Hosmer ed., 1907).
57. The point is substantiated, perhaps, in these lines from William Blake's Proverbs of Hell, in The Marriage of Heaven and Hell: "A fool sees not the same tree that a wise man sees. . . . The hours of folly are measur'd by the clock, but of wisdom: no clock can measure." WILLIAM BLAKE, THE MARRIAGE OF HEAVEN AND HELL 7 (Clark Emery ed., 1963).
58. The point is substantiated, perhaps, in these lines from William Blake's Proverbs of Hell, in The Marriage of Heaven and Hell: "A fool sees not the same tree that a wise man sees. . . . The hours of folly are measur'd by the clock, but of wisdom: no clock can measure." WILLIAM BLAKE, THE MARRIAGE OF HEAVEN AND HELL 7 (Clark Emery ed., 1963).
59. Cf. RICHARD POSNER, OVERCOMING LAW 212-14 (1995) (criticizing academic proposals to extend the Thirteenth Amendment's prohibition of slavery and involuntary servitude as failing to consider the "aggregate impact" of the proposed interpretation).
60. ROUSSEAU, supra note 32, at 72 (translating "will of all" as "what all individuals want").
61. Id. ("[T]he general will studies only the common interest . . . .").
62. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). When Ackerman discusses the constitutional transformation represented by the New Deal, he relies heavily on a shift in the preferences of the electorate in 1936. The numbers count in computing the aggregative will of the people. See id. at 311.
63. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). When Ackerman discusses the constitutional transformation represented by the New Deal, he relies heavily on a shift in the preferences of the electorate in 1936. The numbers count in computing the aggregative will of the people. See id. at 311.
64. This is evident in Lincoln's use of the concept of nationhood in the Gettysburg Address. See GEORGE P. FLETCHER, OUR SECRET CONSTITUTION: HOW LINCOLN REDEFINED AMERICAN DEMOCRACY 40-42 (2001).
65. Herder, supra note 25; Jean-Jacques Rousseau, On the Origin of Language, in ON THE ORIGIN OF LANGUAGE, supra note 25, at 5.
66. Herder, supra note 25; Jean-Jacques Rousseau, On the Origin of Language, in ON THE ORIGIN OF LANGUAGE, supra note 25, at 5.
67. In France, the eighteenth-century interest in the exotic is frequently associated with Montesquieu. See CHARLES DE SECONDAT MONTESQUIEU, THE PERSIAN LETTERS (J. Robert Loy ed. & trans., Meridian Books 1961) (1721).
68. I address the Whorfian hypothesis that language determines thought in an early work. See George P. Fletcher, The Presumption of Innocence in the Soviet Union, 15 UCLA L. REV. 1203, 1206-13 (1968) (arguing that the reasons for the Soviet rejection of the presumption of innocence had nothing to do with the absence of the word "presumption" in Russian).
69. For some thoughts on the particularities of English as a legal language, see George P. Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 950-51 (1985).
70. For an example of this way of thinking, see STEVEN PINKER, THE LANGUAGE INSTINCT 44-74 (1994) (discussing the preverbal language of "mentalese").
71. Santa Clara County v. S. Pac. R.R., 118 U.S. 394 (1886). For an early critique of this reductionistic way of thinking about corporations, see generally MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS (1986).
72. Santa Clara County v. S. Pac. R.R., 118 U.S. 394 (1886). For an early critique of this reductionistic way of thinking about corporations, see generally MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS (1986).
73. GEORG SCHWARZENBERGER & E.D. BROWN, A MANUAL OF INTERNATIONAL LAW 43 (6th ed. 1976) (noting that in the period of absolutist monarchies, "monarch and state were for all practical purposes treated as identical in most European countries"). But cf. OTTO KIMMINICH, EINFÜHRUNG IN DAS VÖLKERRECHT [INTRODUCTION TO INTERNATIONAL LAW] 128 (1990) (arguing that although it is assumed that states are the subjects under international law, international law does not itself define a state). The United Nations Charter Article 2(1) recognizes the "sovereign equality of all its Members." U.N. CHARTER art. 2, para. 1. Thus states are treated like human beings. If it is true that "all men are created equal," THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), then states are like persons, also created equal.
74. GEORG SCHWARZENBERGER & E.D. BROWN, A MANUAL OF INTERNATIONAL LAW 43 (6th ed. 1976) (noting that in the period of absolutist monarchies, "monarch and state were for all practical purposes treated as identical in most European countries"). But cf. OTTO KIMMINICH, EINFÜHRUNG IN DAS VÖLKERRECHT [INTRODUCTION TO INTERNATIONAL LAW] 128 (1990) (arguing that although it is assumed that states are the subjects under international law, international law does not itself define a state). The United Nations Charter Article 2(1) recognizes the "sovereign equality of all its Members." U.N. CHARTER art. 2, para. 1. Thus states are treated like human beings. If it is true that "all men are created equal," THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), then states are like persons, also created equal.
75. For a good introduction to the comparative dimensions of the problem of corporate criminal liability, see CRIMINAL RESPONSIBILITY OF LEGAL AND COLLECTIVE ENTITIES (Albin Eser et al. eds., 1999). For a reflective account of the corporation as a moral person, see PETER FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY 31-47 (1984).
76. For a good introduction to the comparative dimensions of the problem of corporate criminal liability, see CRIMINAL RESPONSIBILITY OF LEGAL AND COLLECTIVE ENTITIES (Albin Eser et al. eds., 1999). For a reflective account of the corporation as a moral person, see PETER FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY 31-47 (1984).
77. It is not uncommon for European codes to have some provision that facilitates the prosecution of conspiracies to commit crimes. E.g., § 129 STRAFGESETZBUCH [StGB] (F.R.G.) (punishing the formation of criminal organizations); CODICE PENALE [C.P.] art. 416 (Italy) (punishing mafia-type organizations). But none of these provisions leads, so far as I know, to the use of conspiracy as a criterion of complicity - that is, holding the members of the organization responsible for all the offenses committed by other members of the conspiracy. For a comparative analysis of conspiracy doctrines, see George P. Fletcher, Is Conspiracy Unique to the Common Law?, 43 AM. J. COMP. L. 171, 173-74 (1994) (reviewing ELIZABETTA GRANDE, ACCORDO CRIMINOSO E CONSPIRACY [CRIMINAL AGREEMENTS AND CONSPIRACY] (1993)).
78. It is not uncommon for European codes to have some provision that facilitates the prosecution of conspiracies to commit crimes. E.g., § 129 STRAFGESETZBUCH [StGB] (F.R.G.) (punishing the formation of criminal organizations); CODICE PENALE [C.P.] art. 416 (Italy) (punishing mafia-type organizations). But none of these provisions leads, so far as I know, to the use of conspiracy as a criterion of complicity - that is, holding the members of the organization responsible for all the offenses committed by other members of the conspiracy. For a comparative analysis of conspiracy doctrines, see George P. Fletcher, Is Conspiracy Unique to the Common Law?, 43 AM. J. COMP. L. 171, 173-74 (1994) (reviewing ELIZABETTA GRANDE, ACCORDO CRIMINOSO E CONSPIRACY [CRIMINAL AGREEMENTS AND CONSPIRACY] (1993)).
79. It is not uncommon for European codes to have some provision that facilitates the prosecution of conspiracies to commit crimes. E.g., § 129 STRAFGESETZBUCH [StGB] (F.R.G.) (punishing the formation of criminal organizations); CODICE PENALE [C.P.] art. 416 (Italy) (punishing mafia-type organizations). But none of these provisions leads, so far as I know, to the use of conspiracy as a criterion of complicity - that is, holding the members of the organization responsible for all the offenses committed by other members of the conspiracy. For a comparative analysis of conspiracy doctrines, see George P. Fletcher, Is Conspiracy Unique to the Common Law?, 43 AM. J. COMP. L. 171, 173-74 (1994) (reviewing ELIZABETTA GRANDE, ACCORDO CRIMINOSO E CONSPIRACY [CRIMINAL AGREEMENTS AND CONSPIRACY] (1993)).
80. The most striking use of this doctrine is Pinkerton v. United States, 328 U.S. 640, 646-47 (1946), which upheld the conviction of a defendant for a crime committed by a co-conspirator while the defendant was in jail.
81. See supra note 59 and accompanying text.
82. For one prosecutor's personal account of the Nuremberg trials and their aftermath, see TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS (1992).
83. The literature is surprisingly noncommital about the present state of the law, but for some early doubts, see Georg Schwarzenberger, The Problem of an International Criminal Law, 3 CURRENT LEGAL PROBS. 263, 275-76 (1950). Cf. David J. Cohen, Bureaucracy, Justice, and Collective Responsibility in the World War II War Crimes Trials, 18 RECHTSHISTORISCHES J. 313, 323 (1999) ("[A]ny attempt to deal with . . . criminality of the Nazi kind without focussing on problems of collective action is likely to prove inadequate."). See generally NINA JØRGENSEN, THE RESPONSIBILITY OF STATES FOR INTERNATIONAL CRIMES 73-76 (2000) (discussing individual versus collective responsibility under the heading of "individualism versus holism").
84. The literature is surprisingly noncommital about the present state of the law, but for some early doubts, see Georg Schwarzenberger, The Problem of an International Criminal Law, 3 CURRENT LEGAL PROBS. 263, 275-76 (1950). Cf. David J. Cohen, Bureaucracy, Justice, and Collective Responsibility in the World War II War Crimes Trials, 18 RECHTSHISTORISCHES J. 313, 323 (1999) ("[A]ny attempt to deal with . . . criminality of the Nazi kind without focussing on problems of collective action is likely to prove inadequate."). See generally NINA JØRGENSEN, THE RESPONSIBILITY OF STATES FOR INTERNATIONAL CRIMES 73-76 (2000) (discussing individual versus collective responsibility under the heading of "individualism versus holism").
85. The literature is surprisingly noncommital about the present state of the law, but for some early doubts, see Georg Schwarzenberger, The Problem of an International Criminal Law, 3 CURRENT LEGAL PROBS. 263, 275-76 (1950). Cf. David J. Cohen, Bureaucracy, Justice, and Collective Responsibility in the World War II War Crimes Trials, 18 RECHTSHISTORISCHES J. 313, 323 (1999) ("[A]ny attempt to deal with . . . criminality of the Nazi kind without focussing on problems of collective action is likely to prove inadequate."). See generally NINA JØRGENSEN, THE RESPONSIBILITY OF STATES FOR INTERNATIONAL CRIMES 73-76 (2000) (discussing individual versus collective responsibility under the heading of "individualism versus holism").
86. Rome Statute of the International Criminal Court, July 17, 1998, art. 25(1), U.N. Doc. A.CONF/183/9 [hereinafter ICC Statute].
87. One intriguing question is whether corporations should be subject to liability under international criminal norms. See Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001).
88. Cf. COST. [Constitution] art. 27(1) (Italy) ("Responsabilità penale è personale." ("Criminal liability is personal and individual.")).
89. Infra notes 107-109 and accompanying text.
90. See The Prize Cases, 67 U.S. (2 Black) 635, 636 (1862).
91. Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995).
92. ICC Statute, supra note 66, art. 5(d).
93. U.N. CHARTER art. 51 ("Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . . . ."). Note that the reference to "collective self-defence" does not carry the same meaning as the use of the phrase in the text. The reference in the Charter is to defensive force by a regional defense organization.
94. MICHAEL WALZER, JUST AND UNJUST WARS 21 (3d ed. 2000).
95. The basic assumption of international law is that jus ad bellum and jus in bello are completely independent bodies of law. See id. (referring to the "logical independence" and the "dualism" of the two categories); see also YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 12 (1988) (noting that jus in bello applies as soon as the state of war arises).
96. "War crimes" must be distinguished from violations of the "law of war" as that term has been used in American law. For example, spying in wartime is a violation of the law of war, Ex parte Quirin, 317 U.S. 1 (1942), but it is not a war crime under the ICC Statute. War crimes typically originate not from the conventional law of war but from the Geneva Conventions. For the importance of this distinction in assessing the constitutionality of military tribunals, see George P. Fletcher, War and the Constitution, 13 AM. PROSPECT 26, 28-29 (2002).
97. U.S. CONST, amend. V (exempting "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"). The scope of this exemption is hotly contested. Compare Reid v. Covert, 354 U.S. 1 (1957) (denying court-martial jurisdiction over a woman who killed her soldier-husband on an airbase in England), with Madsen v. Kinsella, 343 U.S. 341 (1952) (recognizing court-martial jurisdiction over a woman who killed her soldier-husband on a base in Germany).
98. On the history of war crimes, see, for example, ARYEH NEIER, WAR CRIMES (1998);
99. and WALZER, supra note 74.
100. LIEBER, supra note 6.
101. TAYLOR, supra note 64, at 10.
102. Reference is often made to the story of Major John Andre, who was hung for having met and collaborated with Benedict Arnold while wearing civilian clothes. E.g., Quirin, 317 U.S. at 31 n.9.
103. For a critique of the ways law professors have analyzed the problem of military tribunals, see Fletcher, supra note 76.
104. The shift is apparent in In re Yamashita, 327 U.S. 1 (1946), which upheld the conviction of a Japanese general for war crimes in the modern sense. The transformation was not registered in the statutes of the United States until 1997 when Congress changed the name of the crime defined in 18 U.S.C. § 2441 from "grave breaches of the Geneva Convention" to "war crimes." Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L. No. 105-118, § 583, 111 Stat. 2386, 2436 (1997) (codified at 18 U.S.C. § 2441 (Supp. V 1999)).
105. CARL VON CLAUSEWITZ, ON WAR (Michael Howard & Peter Paret eds. & trans., Princeton Univ. Press 1976) (1832).
106. Fourth Hague Convention Respecting the Laws and Customs of War on Land, done Oct. 18, 1907, art. 23(d), 36 Stat. 2277, 2302, 205 Consol. T.S. 277, 293 [hereinafter Hague Convention]; ICC Statute, supra note 66, art. 8(2)(b)(xii).
107. The rebellion of the Confederacy became a war when the Union and Confederate troops exchanged prisoners after the First Battle of Bull Run. Cf. J.G. RANDALL, THE CIVIL WAR AND RECONSTRUCTION 384 (1937) (describing the recognition of Confederate soldiers as prisoners of war).
108. ROUSSEAU, supra note 32, at 56.
109. Id.
110. A similar incident is discussed in Marcel Ophuls's film, THE SORROW AND THE PITY (T.V. Rencontre 1971).
111. Walzer expresses some sympathy for French farmers who killed German soldiers in the incident described in The Sorrow and the Pity. WALZER, supra note 74, at 176-79. There is some support for this view. See HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: THE REGULATION OF ARMED CONFLICTS 135 (1990) ("[I]nternational law does not in itself prohibit the commission by inhabitants of an occupied territory of acts hostile to the belligerent occupant.").
112. Walzer expresses some sympathy for French farmers who killed German soldiers in the incident described in The Sorrow and the Pity. WALZER, supra note 74, at 176-79. There is some support for this view. See HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: THE REGULATION OF ARMED CONFLICTS 135 (1990) ("[I]nternational law does not in itself prohibit the commission by inhabitants of an occupied territory of acts hostile to the belligerent occupant.").
113. Walzer expresses some sympathy for French farmers who killed German soldiers in the incident described in The Sorrow and the Pity. WALZER, supra note 74, at 176-79. There is some support for this view. See HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: THE REGULATION OF ARMED CONFLICTS 135 (1990) ("[I]nternational law does not in itself prohibit the commission by inhabitants of an occupied territory of acts hostile to the belligerent occupant.").
114. This is described as a "grave breach under all the Geneva Conventions." William J. Fenrick, War Crimes, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 173, 182 (Otto Triffterer ed., 1999). It also would be a violation of the ICC statute. ICC Statute, supra note 66, art. 8(2)(a)(i). There might be a problem under Article 8(1) in establishing that the "wilful killing" was "committed as part of a plan or policy or as part of a large-scale commission of such crimes." Id. art. 8(1).
115. Admittedly, there are some boundary issues between individuals acting alone and recruits in the army. I do not think the matter is resolved by the intention either of the farmer or of the government. To qualify as a combatant, the soldier must satisfy the objective requirements of Article I of the Hague Convention of 1907. Hague Convention, supra note 86, 36 Stat. at 2295-96, 205 Consol. T.S. at 289.
116. Unlike Model Penal Code § 3.04, which does not presuppose an "imminent attack," European codes typically require that the attack be imminent. E.g., § 32 para. 2 StGB; KODEKS KARNY [KK] art. 25, § 1 (Pol.).
117. See supra note 75.
118. ICC Statute, supra note 66, art. 8(2)(a)(i); cf. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12, 1949, art. 3, 6 U.S.T. 3516, 3520, 75 U.N.T.S. 287, 290 [hereinafter Geneva Convention].
119. ICC Statute, supra note 66, art. 8(1).
120. I am indebted to Professor Antonio Cassese of Florence, Italy, formerly a judge on the International Criminal Tribunal for Yugoslavia, for debating this issue with me in a conversation in early July 2001 in Paris. Professor Cassese is passionately committed to the view that all homicides committed by members of the occupying force would constitute war crimes. A careful look at the Fourth Geneva Convention, Article 6, would suggest, however, that the Convention applies only so far as the occupying army is engaged in "the functions of government in such territory." Geneva Convention, supra note 96, art. 6, 6 U.S.T. at 3522, 75 U.N.T.S. at 292.
121. All these offenses are covered by the ICC Statute, supra note 66, art. 8. The quoted language is found in Article 8(2)(b)(xxi).
122. Id. art. 8(2)(b)(xii).
123. Id. art. 8(2)(b)(xvi).
124. Id. art. 8(2)(b)(xxv).
125. D.T. ex rel. M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1186 (10th Cir. 1990) (recognizing that the "[a]cts of a state officer in the ambit of his personal pursuits are not acts under color of state law").
126. ICC Statute, supra note 66, art. 7(1).
127. Id. art. 7(2)(a).
128. Id. art. 6; Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, art. 2, S. EXEC. DOC. O, 81-1, at 7 (1949), 78 U.N.T.S. 277, 280.
129. JAMES JACOBS & KIMBERLY POTTER, HATE CRIMES 29-44 (1998) (discussing the variety of hate crimes legislation in the United States). The Model Statute drafted by the Anti-Defamation League defines an offense of "intimidation" based on committing a specified form of physical violence "by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual." Id. at 33. For a thoughtful critique of hate crimes legislation, see Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015 (1997).
130. JAMES JACOBS & KIMBERLY POTTER, HATE CRIMES 29-44 (1998) (discussing the variety of hate crimes legislation in the United States). The Model Statute drafted by the Anti-Defamation League defines an offense of "intimidation" based on committing a specified form of physical violence "by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual." Id. at 33. For a thoughtful critique of hate crimes legislation, see Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015 (1997).
131. JAMES JACOBS & KIMBERLY POTTER, HATE CRIMES 29-44 (1998) (discussing the variety of hate crimes legislation in the United States). The Model Statute drafted by the Anti-Defamation League defines an offense of "intimidation" based on committing a specified form of physical violence "by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual." Id. at 33. For a thoughtful critique of hate crimes legislation, see Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015 (1997).
132. JACOBS & POTTER, supra note 107, at 33.
133. Dillof, supra note 107, at 1045-49; Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L.J. 507, 523-38 (1999).
134. Dillof, supra note 107, at 1045-49; Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L.J. 507, 523-38 (1999).
135. The initial resolution passed by the United Nations did in fact protect victims of political persecution, but the General Assembly eliminated this category before adopting the Genocide Convention. For a critique of this decision, see LEO KUPER, PREVENTION OF GENOCIDE 126-47 (1985).
136. In early June 2001, a Belgian court convicted four Rwandans, including two Catholic Hutu nuns, of complicity in the murder of 7000 Tutsis seeking refuge in their monastery. The Economist noted that "this was the first time that a jury of citizens from one country had judged defendants for war crimes committed in another." Judging Genocide, ECONOMIST, June 16, 2001, LEXIS, Nexis Library, Economist File. The jurisdiction of the Belgian court was based on Article 7 of the Law of June 16, 1993, granting Belgian courts jurisdiction over genocide as defined in the Genocide Convention regardless of where the offense occurred or by whom or against whom the offense is committed. The statute was amended on February 10, 1999. Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Civil Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 HARV. INT'L L.J. 141, 145 (2001).
137. In early June 2001, a Belgian court convicted four Rwandans, including two Catholic Hutu nuns, of complicity in the murder of 7000 Tutsis seeking refuge in their monastery. The Economist noted that "this was the first time that a jury of citizens from one country had judged defendants for war crimes committed in another." Judging Genocide, ECONOMIST, June 16, 2001, LEXIS, Nexis Library, Economist File. The jurisdiction of the Belgian court was based on Article 7 of the Law of June 16, 1993, granting Belgian courts jurisdiction over genocide as defined in the Genocide Convention regardless of where the offense occurred or by whom or against whom the offense is committed. The statute was amended on February 10, 1999. Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Civil Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 HARV. INT'L L.J. 141, 145 (2001).
138. See Developments in the Law - International Criminal Law, 114 HARV. L. REV. 1943, 2020 (2001).
139. "Genos" is a Greek word meaning "race or tribe." RAPHAËL LEMKIN, AXIS RULE IN OCCUPIED EUROPE 79 (1944).
140. Id.
141. Id. at 91.
142. PHILIP ROTH, THE HUMAN STAIN (2000).
143. Id. at 309.
144. Id. at 310.
145. JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 23-26 (1995).
146. HANNAH ARENDT, EICHMANN IN JERUSALEM 135-39 (1963) (discussing the "little man's mentality" and perversion of Kantian morality in Eichmann's thinking).
147. Hannah Arendt, Organized Guilt and Universal Responsibility, in COLLECTIVE RESPONSIBILITY 273 (Larry May & Stacey Hoffman eds., 1991).
148. JASPERS, supra note 38.
149. Walter Russell Mead, In the Long Run: Keynes and the Legacy of British Liberalism, FOREIGN AFF., Jan.-Feb. 2002, at 199, 203 (referring to "the notorious Morgenthau Plan, which would have reduced postwar Germany to a pastoral economy").
150. JASPERS, supra note 38, at 32-33.
151. These are terms, respectively, in French, German, Russian, Hungarian, and Hebrew. The latter term has a rich history, which I take up in Section VII.A.
152. JASPERS, supra note 38, at 63.
153. The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884).
154. E.g., PAUL ROBINSON, 1 CRIMINAL LAW DEFENSES 125 (1984); Joshua Dressler, Exegesis on the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1374-75 (1989).
155. E.g., PAUL ROBINSON, 1 CRIMINAL LAW DEFENSES 125 (1984); Joshua Dressler, Exegesis on the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1374-75 (1989).
156. Dudley & Stephens, 14 Q.B.D. at 288 n.17.
157. JASPERS, supra note 38, at 31.
158. Id. The translation in the text is my own; Ashton prefers "under whose order I live."
159. SIGMUND FREUD, SOME ADDITIONAL NOTES ON DREAM INTERPRETATION AS A WHOLE (1925), reprinted in 19 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 127, 133 (James Strachey ed. & trans., 1961).
160. SIGMUND FREUD, SOME ADDITIONAL NOTES ON DREAM INTERPRETATION AS A WHOLE (1925), reprinted in 19 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 127, 133 (James Strachey ed. & trans., 1961).
161. JASPERS, supra note 38, at 72.
162. Id. at 32. The translation is again my own; Ashton writes, "[S]omewhere among men the unconditioned prevails - the capacity to live only together or not at all."
163. JERUSALEM TALMUD, TRACTATE TERUMOT 8:4. According to the analysis in this passage, if the aggressor names a particular suspect and threatens to kill the travelers if he is not turned over, it is permissible to surrender him to save the caravan. The assumption is that if the authorities name a suspect, they have reasonable grounds to believe that he is guilty of some wrongdoing. Also, if the suspect is named, the guilt of choosing the victim does not fall upon the caravan.
164. See generally DAVID DAUBE, COLLABORATION WITH TYRANNY IN RABBINIC LAW (1965).
165. FYODOR DOSTOEVSKY, THE BROTHERS KARAMAZOV (Richard Pevear & Larissa Volokhonsky trans., North Point Press 1990) (1880).
166. JASPERS, supra note 38, at 41. The translation in the text is my own. Ashton prefers: "One cannot make an individual out of a people. A people cannot perish heroically, cannot be criminal, cannot act morally or immorally; only its individuals can do so."
167. Infra Section V.A.
168. WORDSWORTH, supra note 44.
169. Herder, supra note 25.
170. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), in LOIS J. EINHORN, ABRAHAM LINCOLN THE ORATOR 177, 177 (1992).
171. Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865), in EINHORN, supra note 142, at 179, 180.
172. Id.
173. De Gaulle made the statement in London on March 1, 1941. CHARLES DE GAULLE, DISCOURS ET MESSAGES PENDANT LA GUERRE: JUIN 1940-JANVIER 1946, at 73 (M. François Goguel ed., Berger-Levrault 1946) (author's translation).
174. Virtually all European codes condition the crime of treason on a requirement of citizenship. E.g., CODE PENAL art. 113 (Belg.) ("Tout Belge qui aura porté les armes contra la Belgique sera puni de mort" ("Every Belgian who carries arms against Belgium will be punished by death.")); C.P. art. 242 (Italy) ("Il cittadino che porta le armi contra lo Stato . . . è punito con l'ergastolo" ("A citizen who carries arms against the Italian state . . . is punished by life imprisonment.")); UGOLOVNYI KODEKS RF [UK RF] art. 275 (Russ.) (establishing a maximum punishment of twenty years in prison for citizens engaging in activities harmful to the external security of the Russian Federation).
175. § 81 StGB (applying the crime of treason to "whoever undertakes").
176. The original German Penal Code of 1871 distinguished between Hochverrat (high treason), which consisted in the murder or attempted murder of the Kaiser, and Landesverrat (state treason), which was committed by sympathizing with a foreign power and inducing the foreign power to wage war against Germany. It is not clear whether anyone could commit high treason, but only Germans could commit state treason. See STRAFGESETZBUCH FÜR DAS DEUTSCHE REICH § 80 (Hans Rüdorff ed., Berlin, J. Guttentag 1890) (high treason); id. § 87 (state treason by sympathizing with the enemy); id. § 88 (state treason by taking up arms against Germany). The term Landesverrat is now used to refer to acts of espionage - giving state secrets to a foreign power. It can be committed by anyone. § 94 StGB. But note that German legislation has introduced an offense, not called treason, that applies only to Germans. § 100 StGB (punishing relationships endangering the peace).
177. The relevant changes occurred in the Gesetz zur Änderung von Vorschriften des Strafrechts und des Strafverfahrens [Statute for the Amendment of Provisions of Criminal Law and Procedure] v. 2.5.1934 (RGB1. I S.341), reprinted in DIE STRAFGESETZGEBUNG DER JAHRE 1931 BIS 1935 [LEGISLATION FOR THE YEARS 1931-1935] (Ernst Schäfer & Hans V. Dohanyi eds., 1936).
178. The 1934 legislation employs a revealing turn of phrase that would be surprising if found in contemporary definitions of treason. Section 81 of the 1934 statute, STRAFGESETZBUCH FÜR DAS DEUTSCHE REICH, supra note 148, § 81, describes the act of treason as "robbing the President or Chancellor, the Reich or another member of the government of the Reich of his constitutional power" ("Wer es unternimmit, den Reichspräsidenten oder den Reichskanzler oder en anderes Mitglied der Reichsregierung seiner verfaffungsmässigen Gewalt zu berauben"). The National Socialists were so convinced of their rectitude that anyone who sought to undermine their authority was "robbing" them of something that was rightfully theirs.
179. Nazi theorists had an obsession with the phenomenon of betrayal. For the most interesting article on point, see Georg Dahm, Verrat und Verbrechen [Treason and Felony], 95 ZEITSCHRIFT FÜR DIE GESAMTE STAATSRECHTSWISSENSCHAFT 283 (1935).
180. According to the latest amendment to the German citizenship law, all German nationals defined as Germans under Article 116(1) of the German Constitution on August 1, 1999, automatically become German citizens. See Gesetz zur Reform des Staatsangehörigkeitsrechts [Statute for the Reform of the Law of Citizenship], v. 15.7.1999 (BGB1. I S.1618) (codified at § 40a STAATSANGEHÖRIGKEITSGESETZ [StAG]).
181. E.g., GRUNDGESETZ [GG] [Constitution] art. 8 (granting all "Germans" the right peaceably to assemble); id. art. 12 (granting all "Germans" the right freely to choose their profession and their place of work); id. art. 20(4) (granting all "Germans" the right to resist efforts to undermine the Basic Law).
182. Id. art. 116(1) (defining "German" to include not only citizens but also German ethnic nationals - or their wives or descendants - permitted to reside in the territory of the German Reich as defined at the end of 1937).
183. See the pathbreaking decision in Mabo v. Queensland (1992) 107 A.L.R. 1 (Austl.), in which the High Court of Australia recognized that the Meriam people retained rights to certain lands in the Murray Islands.
184. Compensation for prior racial discrimination raises special problems of the continuity of the debtor and creditor classes. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (arguing that under the Constitution races cannot incur collective rights or debts).
185. KENPŌ [Constitution] art. 9 (Japan).
186. In October 2001, Japanese Prime Minister Junichiro Koizumi offered a public apology to Korea for Japan's past policies. Valerie Reitman, Japanese Premier Lectured and Yelled At in South Korea, L.A. TIMES, Oct. 16, 2001, at A14.
187. Li v. Yellow Cab Co., 532 P.2d 1226, 1243 (Cal. 1975). Admittedly there is some controversy about whether comparative negligence implies comparative personal culpability or comparative causation. The German code is explicitly grounded in comparative causation. § 254 BÜRGERLICHES GESETZBUCH [BGB] (establishing that liability for negligence depends "on the extent to which one party or the other caused the damage").
188. White v. State, 72 S.W. 173 (Tex. Crim. App. 1902); Rex v. Simpson, 84 L.J.K.B. 1893 (Eng. Crim. App. 1915).
189. For analysis of these old cases, see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 245-46 (1978).
190. MODEL PENAL CODE § 210.3(1)(b) (1985).
191. Entscheidungen des Bundesgerichtshofes in Strafsachen [BGHSt] [Supreme Court] 18, 87.
192. For a discussion of parity of punishment for principals and accessories in common-law jurisdictions, see GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW 190-94 (1998).
193. § 25(1) StGB. This provision, enacted to reverse the principle of the Stashchinsky case, now reads: "The person who actually commits the deed himself or through another is punished as a principal." Id. (author's translation).
194. MODEL PENAL CODE § 2.02(2).
195. I leave out of the discussion my more conventional critique, which explains that the notion of culpability requires integration of excusing conditions. See FLETCHER, supra note 163, at 82-84. This is true, but not relevant at this juncture.
196. For a closely related theory of second-order volitions, see HARRY G. FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 20 (1988), which accounts for freedom of the will as securing conformity of the will to second-order volitions.
197. ARENDT, supra note 120. David J. Cohen anticipates the argument made here that the banality of evil should have had a mitigating effect on Eichmann's punishment. He criticizes Arendt for failing to see this point. Cohen, supra note 65, at 316 ("[H]aving made the best case, the case the defense did not make, for Eichmann's innocence by locating his crimes within the larger bureaucratic, moral, political, legal, and social context of Nazi occupied Europe, she completely denies the relevance of that context for an assessment of his guilt.").
198. Judge Bazelon used the "forfeiture" thesis to explain why a state that tolerated poverty should not be able to prosecute crimes that derive from that condition of poverty. David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385 (1976). But see Stephen J. Morse, The Twilight of Welfare Criminology: A Reply to Judge Bazelon, 49 S. CAL. L. REV. 1247 (1976).
199. Judge Bazelon used the "forfeiture" thesis to explain why a state that tolerated poverty should not be able to prosecute crimes that derive from that condition of poverty. David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385 (1976). But see Stephen J. Morse, The Twilight of Welfare Criminology: A Reply to Judge Bazelon, 49 S. CAL. L. REV. 1247 (1976).
200. See IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 13 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785) (citing the metaphor of the will as standing "between two roads").
201. DANIEL J. GOLDHAGEN, HITLER'S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST (1996).
202. JAMES CARROLL, CONSTANTINE'S SWORD: THE CHURCH AND THE JEWS 28 (2001). The sentence ends: "and an entire civilization was prepared to let it happen." Id.
203. Supra note 138 and accompanying text.
204. See infra note 192 and accompanying text.
205. Genesis 2:17.
206. Augustin, De Nuptiis et Concupiscentia [On Marriage and Concupiscence] bk. II, pt. xxvi, ch. 43 (420), in 5 A SELECT LIBRARY OF THE NICENE AND POST-NICENE FATHERS OF THE CHRISTIAN CHURCH: SAINT AUGUSTIN: ANTI-PELAGIAN WRITINGS 257, 300 (Philip Schaff ed. & Peter Holmes et al. trans., 1971).
207. Romans 5:12.
208. Douglas Farrow, Fall, in THE OXFORD COMPANION TO CHRISTIAN THOUGHT 233, 233 (Adrian Hastings et al. eds., 2000) (noting the Enlightenment characterization of the doctrine of the Fall as a "perversion").
209. Id.
210. Mormon Articles of Faith art. 2, quoted in BRUCE R. MCCONKIE, A NEW WITNESS FOR THE ARTICLES OF FAITH 79 (1985).
211. On the Jewish view, see the comment made about Adam eating the forbidden fruit in ETZ HAYIM [TREE OF LIFE]: TORAH AND COMMENTARY 18 (David Lieber ed., 2001) ("Moreover, we note that neither here nor anywhere else in the Bible is their act characterized as sin, let alone the Original Sin."). On the Islamic view, see MARCEL A. BOISARD, HUMANISM IN ISLAM 63 (1988) ("Islam thus rejects the idea of a 'fall of man' - of original sin - whose consequences were to be transmitted to all of mankind.").
212. Deuteronomy 25:18.
213. Id.
214. Exodus 17:16.
215. There is a peculiar contradiction between God's wish to blot out the memory of Amalek and His decree to remember Amalek and renew the war from generation to generation. Compare Deuteronomy 25:19 ("[B]lot out the memory of Amalek from under Heaven . . . ."), with id. 25:17 ("Remember what Amalek did to you . . . .").
216. Ezekiel 18:2.
217. Id. 18:20 ("The soul that sins shall die. The son shall not bear the inequity of the father; neither shall the father bear the inequity of the son.").
218. Deuteronomy 23:3.
219. ELAINE PAGELS, THE ORIGIN OF SATAN 102-05 (1995).
220. John 8:44 ("Ye are of your father the devil . . . .").
221. Genesis 3:1-6.
222. PAGELS, supra note 189, at 104. See generally CARROLL, supra note 172 (discussing the history of anti-Semitism).
223. Supra note 138 and accompanying text.
224. For exposition of the thesis that aggregative guilt is either tautological or irrelevant, see supra Part IV.
225. Supra notes 27-29 and accompanying text.
226. BERLIN, supra note 22, at 10.
227. Id.
228. One of the earliest cases in the common law was Rex v. Scofield, Cald. 397 (1784), cited in FLETCHER, supra note 160, at 134 n.9, which upheld a conviction for attempted arson when the defendant had put a candle among combustible materials, but was arrested before the fire broke out.
229. See George P. Fletcher, The Metamorphosis of Larceny, 89 HARV. L. REV. 469 (1976).
230. The first embezzlement statute was limited to "servants and clerks" who acquired possession of goods belonging to their masters. An Act To Protect Masters Against Embezzlements by Their Clerks or Servants, 39 Geo. 3, c. 85 (1799).
231. 4 WILLIAM BLACKSTONE, COMMENTARIES *201 (stating that causing the death of another human being "amounts to murder, unless where justified . . . ; excused . . . ; or alleviated into manslaughter").
232. The transformation was complete when accident ceased being an excuse to be proven by the defense, and its converse, intentional killing, became an element of the prima facie case to be proven by the prosecution. See Woolmington v. Dir. of Pub. Prosecutions, 1935 A.C. 462 (Eng. H.L. 1935).
233. E.g., Joel Feinberg, Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It, 37 ARIZ. L. REV. 117 (1995); Sanford H. Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. CRIM. L. & CRIMINOLOGY 679 (1994).
234. E.g., Joel Feinberg, Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It, 37 ARIZ. L. REV. 117 (1995); Sanford H. Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. CRIM. L. & CRIMINOLOGY 679 (1994).
235. Elizabeth Bumiller, A Nation Challenged: The Video, N.Y. TIMES, Dec. 14, 2001, at A1.
236. KANT, supra note 170, at 7.
237. BERLIN, supra note 22, at 10.
238. On the way Johann Gottlieb Fichte used Kant as a bridge to a doctrine of self as the supreme source of value, see BERLIN, supra note 22, at 93-96.
239. For an example of this tendency to equate autonomy with liberty, see David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979).
240. KANT, supra note 170, at 53.
241. BERLIN, supra note 22, at 93-96.
242. People v. Humphrey, 921 P.2d 1, 6 (Cal. 1996) (concluding that an honest, but unreasonable, mistake negates malice and reduces intentional homicide to manslaughter).
243. For a detailed account of this controversy in the Menendez trials, see GEORGE P. FLETCHER, WITH JUSTICE FOR SOME: PROTECTING VICTIMS' RIGHTS IN CRIMINAL TRIALS 141-48 (1995).
244. Regina v. Morgan, 1976 A.C. 182 (H.L. 1976).
245. Jerome Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 COLUM. L. REV. 632 (1963).
246. H.L.A. Hart, Varieties of Responsibility, 83 LAW Q. REV. 346 (1967).
247. For an exploration of the distinction between moral guilt and compensatory responsibility, see Yael Tamir & Noam Zohar, Who Done It? Moral Responsibility for Collective Action, 2 ONLINE J. ETHICS (1998), at http://www.stthom.edu/cbes/zohar1.html.
248. Genesis 2:25.
249. Id. 3:7.
250. Cf. Max Scheler, Shame and Feelings of Modesty, in PERSON AND SELF-VALUE 1 (M.S. Frings ed. & trans., 1987) (grounding the analysis of shame in the human need to distinguish humans from animals).
251. Genesis 3:10.
252. Id. 3:21.
253. Anton Leist, Scham und deutsches Nationalbewußtsein [Shame and German National Consciousness], in AKTUELLE FRAGEN POLITISCHER PHILOSOPHIE [CURRENT ISSUES IN POLITICAL PHILOSOPHY] 369 (Peter Koller & Klaus Puhl eds., 1997).
254. András Sajó, Affordable Shame, in THE PARADOXES OF UNINTENDED CONSEQUENCES 163 (Lord Dahrendorf et al. eds., 2000).
255. Genesis 12:17.
256. Id. 20:3.
257. Id. 26:10 (emphasis added).
258. Some translations of the Bible translate avon as "punishment," others as "sin" or "crime." The problem is well summarized in ETZ HAYIM, supra note 181, at 27 n.13, in a comment on the editor's choice of the word "punishment."
259. SOPHOCLES, OEDIPUS REX (Stanley Appelbaum ed. & George Young trans., Dover Publ'ns 1991). The text is not clear whether the pollution derives primarily from the patricide or the incest. The following lines of the Chorus suggest that the incest is at least a major factor: "Time found thee out - Time who sees everything - Unwittingly guilty; and arraigns thee now consort ill-sorted, unto whom are bred sons of thy getting, in thine own birthbed. O scion of Laius's race." Id. at 43.
260. See supra notes 126-128 and accompanying text.
261. Leviticus 5:6, 15-16, 18-19, 25.
262. See supra note 227.
263. Walter Burkert, Greek Tragedy and Sacrificial Ritual, 7 GREEK ROMAN & BYZANTINE STUD. 87, 112 (1966) (noting that "the community is knit together in the common experience of shock and guilt" at the time of sacrifices).
264. BERNARD WILLIAMS, SHAME AND NECESSITY 88-89 (1993).
265. ARISTOTLE, THE NICOMACHEAN ETHICS (London, Cox & Wyman 1850).
266. HERBERT MORRIS, ON GUILT AND INNOCENCE 120 (1976).
267. Morris's argument is based largely on the common root in the German terms Schuld (guilt) and Verschulden (debt). Unfortunately, this linguistic clue is not, as far as I know, available in other languages.
268. PAUL RICOEUR, THE SYMBOLISM OF EVIL 100-02 (Emerson Buchanan trans., 1969).
269. RICHARD J. GOLDSTONE, HEALING WOUNDED PEOPLE: WAR CRIMES AND TRUTH COMMISSIONS (1998).
270. FRANZ KAFKA, THE TRIAL (Willa Muir & Edwin Muir trans., Alfred A. Knopf 1957) (1937).
271. Cf. RICOEUR, supra note 237, at 100-02.
272. See FYODOR DOSTOYEVSKY, CRIME AND PUNISHMENT (Constance Garnett trans., Random House 1944) (1866).
273. About half the adult population, 20 million people, watched some portion of the television series when it was first broadcast in January 1979. The experience had the effect of adding the word "Holocaust" to the German language. William Drozdiak, Hitler Legacy Haunts Germany Still; 50 Years After Rise, Nation Sifts Lessons, WASH. POST, Jan. 30, 1983, at A1.
274. This point is admittedly controversial. I am indebted to Herbert Morris for making the claim that "shameful" conduct for which one feels no shame is parallel to being guilty but not feeling guilt. But shamefulness is an attribute of the conduct, not a description of a state of being. Whether this is a critical point remains subject to debate.
275. Sajó, supra note 223.
276. The seminar took place at the Cardozo Law School in February 2001.
277. § 130 StGB (providing, in part, that it is a crime punishable by up to three years in prison to act in a way likely to disturb the public order by cursing, heaping contempt upon, or defaming a segment of the population, and thus attacking its dignity). This provision is interpreted to penalize Holocaust denial. STRAFGESETZBUCH: KOMMENTAR [CRIMINAL CODE: COMMENTARY] § 130, at 1103 n. 1 (Theodor Lenckner et al. eds., 25th ed. 1997). Holocaust denial is also subject to prosecution as a criminal insult according to § 185 StGB. For a review of the German case law, see Eric Stein, History Against Free Speech: The New German Against "Auschwitz" - and Other "Lies," 85 MICH. L. REV. 277 (1986).
278. Provisions parallel to sections 130 and 185 of the German Criminal Code, explained supra note 246, are found in many European codes. E.g., KK arts. 256-257 (Pol.); UK RF arts. 129-130 (Russ.). Canadian jurisprudence is well known for its willingness to punish Holocaust denial. See The Queen v. Keegstra, [1990] 3 S.C.R. 697 (Can.) (upholding a criminal hate speech law). On the German and Canadian practices and specifically on the question whether the fact of the Holocaust must be proved in litigation enforcing these and similar provisions, see Lawrence Douglas, Wartime Lies: Securing the Holocaust in Law and Literature, 7 YALE J.L. & HUMAN. 367 (1995).
279. I admit that there may be less charitable interpretations of political correctness in language. For example, the point may be to demonstrate that we belong to the educated class that has learned the proper way of referring to various minorities. Steven Pinker, Editorial, The Game of the Name, N.Y. TIMES, Apr. 5, 1994, at A21.