Lothar Kreyssig

In my post Thinking like a federal trial judge I asserted: “You will think like a real federal trial judge if you understand that: (1) there is no justice or injustice; (2) there is only the law, and that is more than enough.”* A reader commented in response: “Sounds like a recipe for getting executed after a Nuremberg Trial.” I responded that “Denying that the job of a trial judge is to do justice does not mean that the judge lacks moral sensibilities.” I cited as an example Lothar Kreyssig. In this post, I briefly elaborate on Judge Kreyssig and his commitment to the rule of law during Hitler’s reign in Germany.

In October, 1939, the Third Reich created what came to be known as the “Action T4” program. In furtherance of what the Nazis called “racial hygiene,” Reich bureaucrats, working with doctors, were authorized to identify and kill those deemed to be “unworthy of life,” that is, institutionalized patients with “severe disabilities.” Hitler called for at least 70,000 people to be killed under this program, so doctors and officials set about meeting the Fuhrer’s quotas. Fearing domestic and international reaction, the Nazis tried to hide what was going on: they lied to patients’ families and, fore-shadowing Auschwitz, they disguised the gas chambers as showers.

Dr. Lothar Kreyssig, was a judge at the Court of Guardianship in the town of Brandenburg, on the Havel River. Since his appointment in 1928, Kreyssig’s superiors considered him to be a good judge–until he began a series of minor insubordinations such as slipping out of a ceremony in his court when a bust of Hitler was unveiled and publicly protesting the suspension of three judges who failed to follow the interpretation of “Aryan laws” favored by Nazi authorities. In 1933, Kreyssig was pressured to join the Nazi party, but refused.

Hitler, and his functionaries, had decreed that the Führer was the font of law. That is, whatever Hitler said became the law. Kreyssig was having none of it. That was definitely not the rule of law.

After an increase in the number of death certificates of his wards began to accumulate on his desk, Kreyssig came to suspect that the deaths were connected to the “mercy killing” that had begun. He reported his suspicions in a letter to Minister of Justice Franz Gürtner, dated July 8, 1940. He pilloried the Nazi’s T4 euthanasia program. He also addressed the disenfranchisement of prisoners in concentration camps, making all his arguments on German legal principles. He wrote:

What is right is what benefits the people. In the name of this frightful doctrine — as yet, uncontradicted by any guardian of rights in Germany — entire sectors of communal living are excluded from [having] rights, for example, all the concentration camps, and now, all hospitals and sanatoriums.

Kreyssig then filed a charge against Reichsleiter Philipp Bouhler for murder. He filed an injunction against the institutions in which he had housed his wards, prohibiting them from transferring the wards without his consent.

On November 13, 1940, Kreyssig was summoned by Gürtner, who laid before Kreyssig Hitler’s personal letter that had started the euthanasia program and which constituted the sole legal basis for it. Kreyssig replied, “The Führer’s word does not create a right,” clearly signifying that German law did not authorize Hitler to kill his fellow Germans. (Emphasis added.) Gürtner then told Kreyssig, “If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge.” In December 1940, Kreyssig was suspended. Efforts by the Gestapo to send him to a concentration camp failed probably because of the fear that the T4 program would be revealed. Two years later, in March 1942, Hitler forced Kreyssig to retire.

Kreyssig returned to his farm and lived there until the end of the war. Unknown to the Nazis, Kreyssig hid two Jewish women on his property till the end of the war.  

In his book, Hitler’s Justice: The Courts of the Third Reich, Ingo Muller writes of the courageous judge of Brandenburg: “No matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.”**

After the war,  Kreyssig founded Action Reconciliation Service for Peace. In 1958, he said that young Germans should go to former enemy countries and to Israel to ask for forgiveness and by volunteering to do good deeds to atone for the crimes of World War II. As a result, thousands of Germans have volunteered in numerous countries through the organization that Judge Kreyssig founded. This brave man died on July 6, 1986.

In summary, while I continue to believe that doing “justice” is far beyond the abilities of even the smartest federal trial judge, I also believe that the rule of law in the hands of intellectually honest judges is sufficient to combat barbarity. Judge Lothar Kreyssig is a good example.

RGK

*If you want to understand the meaning of “justice,” I suggest you start with Otto A. Bird, The Idea of Justice, Concepts in Western Thought, Institute for Philosophical Research, Frederick A Praeger Publishers (1966). In that wonderful book, Professor Bird surveys and categorizes the various concepts of “justice.” For me: “Justice is a wider notion than that of law, inasmuch as questions of justice arise independent of questions of law.” Id. at 156.

**For information on the Nuremberg trial of German judges, and Lothar Kreyssig, the University of Missouri at Kansas City law school has a wonderful online collection. See here.

44 responses

  1. Thank you, Judge, for that post. While reading, I thought of Bonhoffer, who, of course, was not a judge, but whose courage got him killed. Why didn’t they just kill Kreyssig?

  2. That was a very interesting post about Dr. Kreyssig. How discouraging however to see that he was the sole “intellectually honest” judge in the Third Reich. Intellectual honesty ought to be the first criteria of every judge. My experience of course tells me otherwise and now I see that my disappointment is not confined to my experience. How discouraging for our profession.

  3. Thanks for posting this story of an extraordinary man. I wasn’t aware of him until now. I will share it with others

  4. Probably because they feared his friends would reveal the T4 program to the world. All the best. RGK

  5. Thank you for this post. I will look up the Otto Bird book, as I have benefited from other recommendations you’ve made, such as Loren Eisely. I’ll be interested to see whether the conception of justice I’ve arrived at, and which I described in my comment, that justice is the absence of crime or harm, and all other “justice” is only derivative, has the sanction of independent corroboration in history. This conception of mine was arrived at in conflict with other criminal defense bloggers like SHG, who insisted the job of the criminal defense attorney is not to do justice but to defend. My response is essentially that to defend is to do justice.

    May I recommend to you my own favorite figure of WWII and beyond: Ernst Jünger.

    I note that you appear to have substituted for Justice as the highest aspiration of the law the Rule of Law. But what does the Rule of Law mean if not Rulerlessness? And Rulerlessness is none other than Anarchy, which to my mind is a positive thing, because after all, Anarchy is Order, which the notorious red circled A symbolizes. The problem with Nazi law is that it purportedly issued only from the brain of Hitler? How much greater greater claim to authority have the dictates issuing from that sausage-factory, Congress? You will say that, as a matter of fact, Congress has not issued anything comparable to the odious dictates of Hitler. That may be true, but it is your individual judgment which judges the degree of difference, and to what extent one or the other set of dictates has become intolerable. Even the notion that one is morally obligated to obey the “law of the land” is a moral judgment which resides in the individual.

    Regarding the Rule of Law and what it means, I highly recommend a law review article by John Hasnas titled “The Depoliticization of Law.” If I’m not mistaken, you have previously cited a different article by Hasnas in one of your posts.

  6. John Kindley,

    I too love this site and following up on things RGK posts. Partially as a consequence, I now have an overdue library book from one of his previous reccomendations: the Marble and the Sculptor: https://herculesandtheumpire.com/2014/07/07/the-marble-and-the-sculptor/

    I would not equate rule of law with rulerlessnesss with anarchy and with order in your penultimate paragraph. The terms are loosely used, and the syllogism is lost in the ambiguity.

  7. I don’t think it’s discouraging for our profession, I think it should inform us of who we are as human beings. I think we should admire and emulate heroes, rather than decry those who cannot attain that exalted status.

    I can’t find it in my heart to blame a person who, when threatened with the loss of his personal life and family, chooses to obey. But I can find fault with a man who engages in sadism for personal pleasure and cruelty. For more on this subject, I suggest reading Kommandat at Auschwitz, the diary of Rudolph Hoess, the commander of the Auschwitz death camps. It’s a fascinating view into that monstrous world, and how disturbingly human and familiar it is.

  8. I don’t disagree with you as to who or what we should aspire to. But the rule of law, if it is to be our standard (and I think most would agree it should be all around the world), needs to be applied. The judges of the Third Reich did not apparently follow it or apply it to protect the most basic human rights in the face of a monstrous perversion of the law. My discouraged observation is generated from the nearly daily failure of judges to be intellectually honest in “applying” the rule of law in relatively venial cases. Many times the (appellate) judges decision is cloaked in not taking an appeal (or otherwise ducking the hard and obvious questions at issue – the rules of interpretation in fact encourages this – decide on statutory grounds if you can). Perhaps the judges will apply the rule of law in the more important capital or mortal sin cases, but I am not encouraged by the cited experience in Germany – a culture with a reputation of following all rules diligently.

  9. I think it is something we should aspire to, but in our effort to aspire, I don’t think we should forget who or what we are. We are human, and we are fallible, breakable things.

    RGK posted with the suggestion that we think like a judge. My observation is from the inverse: judges think like us. I think it is difficult for many of us to understand the situation the judges were in back then.

    Let me try to put you there. You have been elected to the court. The government which has elected you (or elected to keep you) has, so far, demonstrated its commitment to destroying all cultures but the German one, specifically their view of it. You are rewarded for obeying the party line, and punished for not obeying. You have a wife, you have land that has probably been in your family for sometime, and you have children, as well as probably a mother and a father. All of these people, to varying degrees, depend upon your continued success and survival.

    In the process of doing your duty, you are asked to sign orders to execute someone. They come from the higher party officials, and they command you to sign it. You do not know who this person is, or what they do. Do you sign? Keep in mind that, if you do not, you may be punished, demoted, or lose your livelihood entirely.

    You call it a monstrous perversion of law. I think this is a wonderfully accurate description, because it does not simply pervert the law, but the incentives to follow the law. Judges can only judge when they are independent. The process I outlined above monstrously perverts that independence by giving one side a direct influence over the judge’s life. They cannot make an unbiased decision without risking their own lives and that of their family’s. You may, if I am truly heroic, get me to risk my own life for a cause. Risking my family’s lives is generally either selfish or idiotic. It is a much, much greater burden.

    I do not know if you are married, but if you are or if you love someone, imagine watching the Gestapo pulling them away from you, backing them up against the wall, and threatening to shoot them because you refused to sign a piece of paper. Really put yourself in that situation. Then Imagine them doing the same to your children, because of you. Would you still refuse to sign?

    I do not blame the judges for their response, I blame the monstrous perversion that placed them in an impossible situation in the first place.

  10. Judeg:
    Great post about a truly great man. Judge Kreyssig was the polar opposite of Roland Freisler, president of the Nazi People’s Court. Freisler ( I do not wish to give him the dignity of the honorific title “judge”) presided over notorious show trials which were a mockery of justice. Freisler’s passing–killed while still on the bench when crushed under a beam due to Allied bombing–was as close to justice as this man ever got.
    Robert

  11. SLS,

    As usual, you have asked a right question. There are several other right questions, like whether things would have been far worse had the “good” judges resigned en masse.

    Now, this weekend, rent if you can (or buy ($68.00!) if you must) and watch Judgment at Nuremberg. In 1948, an American court in occupied Germany tries four Nazi judges for war crimes, and the movie is about that fictional trial. Pay particularly close attention to one of the fictional defendants, Dr. Ernst Janning (Burt Lancaster), and one of the defense lawyers, Hans Rolfe (Maximilian Schell). The film was nominated for an astounding 11 academy awards, it won 2.

    All the best.

    RGK

  12. John,

    Great. I am glad. The book can be a slog but it is relatively short. More importantly, it is one of those books that will be cited 100 years from now.

    All the best.

    RGK

  13. Andrew,

    You write: “I am not encouraged by the cited experience in Germany – a culture with a reputation of following all rules diligently.” How could the German judges, with their love for rules as you point out, give over to a maniac the authority to brazenly violate those rules? I don’t have much of an answer.

    That said, I am forever thankful that Article III of our Constitution, with the provision for lifetime tenure, was written so that American federal judges would be encouraged to say, “Hell, no.” When push really comes to shove, I am confident that the federal judiciary has the courage to stand against barbarity of the kind witnessed in Nazi Germany. Of that, I am absolutely sure.

    All the best.

    RGK

  14. RKJ,

    As I recall when I was in the throes of my debates over justice with SHG et al. I actually looked for just this kind of book, but couldn’t seem to find one that appealed to me. I looked up Otto Bird before investing the $4 and his background, and the background of the book, appeals to me. I came close to going to St. John’s College in Annapolis, before I wound up instead going to the other academy in town. And I was an Etienne Gilson fan at one time.

  15. You dont think any intellectually honest person could consider the word of their public official law?

    Im inclined to think the judiciary should never consider the political intentions of the legislature or executive relevant to legal interpretation, but I know I have a minority view. Most jurists seem to think that the views of the elected officials are relevant in some way (perhaps not directly into law, but relevant in legal interpretation).

    Lots of jurists think judges should step back when the people have firmly decided on a policy. If you agree, why wouldnt a judge consider the word of the Fuhrer law?

  16. Thank your for mentioning Kreyssig’s role in the founding of ARSP. (I think it’s misleading to suggest that he was the sole founder; most of the founders were former dissenting (anti-Nazi) Protestant clergy, if I am not mistaken.) My family has for many years hosted new ARSP volunteers for a weekend as they complete their orientation training, before they fan out from Philadelphia to their assignments. Typical ARSP volunteer posts in the USA include Jewish geriatric centers, tour guiding and document cataloguing at the Holocaust Museum, residential programs for the intellectually challenged, and homeless shelters. It is a terrific, inspiring program, which Hercules readers might consider adding to their listed of supported charitable causes. More information at: http://www.actionreconciliation.org/ .

  17. PDGPA,

    Thanks for this information. I am sorry that I mislead folks about Kreysigg’s role; he was not the sole founder.

    Thanks for the link too. While I am ethically precluded from endorsing charitable organizations, most readers of this blog are not. I suppose I can’t get into too much trouble by saying reconcillation between Germany and its citizens and other countries and citizens of the world seems like a very worthy goal.

    All the best.

    RGK

  18. Chadtech,

    You are provocative, my friend, but it is almost a good question. The simple answer can be found in U.S.A. v. ALSTOETTER ET AL (The Justice Cases): Excerpts from the Decision which may be found here. All the best.

    RGK

  19. I learned about Kreyssig because of some continuing legal education programs the Arizona State Bar puts on in conjunction with the Holocaust Museum in Washington, D.C. The lesson I thought I was supposed to get was that I had an absolute duty to speak up when I saw illegality within the Arizona Judiciary, where I worked as the last licensed Capital Staff Attorney. The other Capital Staff Attorney had not been a licensed attorney for years. She drafted a grant request to fund our jobs and request a raise, stating that we were both criminal law attorneys and criminal law specialists, and talking about the importance of having us as opposed to mere “law clerks.” I reported the grant fraud and unauthorized practice of law to the Arizona State Bar and my supervisor, and I was unconstitutionally fired by the Maricopa County Presiding Criminal Judge just a couple of business days later; that judge, who fudged by omission the party affiliation question on his Senate Judiciary Questionnaire, is now one of Arizona’s newest federal judges. I haven’t been able to find work as a criminal attorney in over two years, so I filed suit in federal court before the SOL ran for First Amendment Retaliation. The Arizona Attorney General now claims I had to be fired because I wasn’t as nice as I should have been in communicating with the non-attorney, who drafted the fraudulent grant request, about the fraudulent grant request; the same non-attorney known today as the “Capital Litigation Law Clerk.”

    I’ve been involved in a couple of instances of actual justice in my 21 year career. My former law partner and I did the second DNA exoneration in Texas. But these miracles of justice seem to occur only after some grave injustice has already taken place. I had the misfortune of working with Assistant Attorney General Ted Cruz at the Texas AG’s Office (I was Deputy Division Chief of the Habeas Corpus Division and an AAG at the time), only to move to Arizona and find out that the Maricopa County Superior Court thinks it is exempt from the rule of law and that it is okay to pretend to be an attorney in a sworn grant request and elsewhere. Then the Drunk DA of Travis County, Texas, who I never admired, got arrested for DWI; but her apparent hit and runs were covered up. Now Texas Governor Rick Perry has been indicted for pressuring the Drunk DA to resign her posted. I have looked at that indictment, and it appears to me to be incorrectly drafted. I wonder now why I ever bothered to get board certified in criminal and criminal appellate law in Texas, or learn all that law. Justice is in serious trouble, at least in the two states I have personal experience in. Onward through the fog!

  20. TF,

    Great question.

    Remember that few years later, Justice Jackson would serve as the chief prosecutor in Nuremberg. With that in mind, read Justice Jackson’s dissent for my views in 1944.

    To be clear, I am not saying that I would accept his views now. I only state that in 1944 I would likely have agreed with Jackson. Remember that the case is effectively now a dead letter as it should be. See, e.g., Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal. 1984) (vacating Fred Korematsu’s conviction on a petition for a writ of error coram nobis;In her opinion granting Fred Korematsu’s petition, Judge Marilyn Patel found “substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the [Supreme Court].” In a posthumous rebuke to Solicitor General Fahy, she added that “[t]he judicial process is seriously impaired when the government’s law enforcement officers violate their ethical obligations to the Court.” ).

    I will briefly summarize Jackson’s views.

    Jackson acknowledged and condemned the nasty racial dimensions of Korematsu’s treatment by the military. But he reluctantly concluded that in a time of war, the Supreme Court was ill equipped to veto specific orders issued by the military.

    In contrast, and like a lawyer’s lawyer, Jackson said it was a different thing to be asked to review the criminal conviction of Fred K. It was different because the review of the validity of a criminal conviction was specifically in the wheel-house of the Supreme Court.

    That foregoing being true, Jackson concluded:

    “I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.”

    In short, it was Jackson’s opinion that the Court should not preemptively endeavor to stop the Army from relocating Fred K., but the Court should review the validity of Fred K’s criminal conviction. If that review required the Court to pass upon the lawfulness of the particular military action taken against Fred K. as the basis for the criminal conviction, then the Court had the power and duty to act.

    Jackson’s dissent is shrewd and lawyerly and, most important of all, realistic given the state of American law and the spirit of the time (the Zeitgeist (forgive the irony) during WWII.

    There is, of course, a potential problem with Jackson’s opinion. What if the Army instead of relocation decided to shoot American citizens of Japanese ancestry? (Think Nazis.) Would Jackson have continued to insist that the Court decline to act preemptively? I doubt Jackson would have countenanced such an Army order, but Jackson understood that he need not address that question in Korematsu. He was a very wise man.

    All the best.

    RGK

  21. I don’t think the high court’s opinion in Korematsu is dead letter – at least not on account of the writ of Corom Nobis granted by Judge Patel. At least my understanding is – when a lower court grants the writ it doesn’t vacate any prior ruling of a higher panel which remains the law of the case and binding in other cases – it only changes the result of said law as applied to the facts because the facts have changed or rather the original “facts” were actually a fraud on the court. Anyway, it is just a quibble. The holdings of Korematsu and Hirabayashi were severely weakened by dicta in some other cases and is too tainted that it is unlikely that the government would rely on it in the future.

    I always thought Jackson’s dissent there was too clever by half and it was Murphy’s moment. I think between the two dissents there is some valuable lesson about your law v justice dichotomy. But I’m not smart enough to articulate it.

  22. While this account is fascinating, I don’t think it is responsible to the question of how a judge should act when there is an inconsistency between the law and justice. First, there was not actually any such inconsistency: the Nazi actions were unlawful. Second, Judge Kreyssig’s actions set such a high standard that it is unreasonable, or at least unrealistic, to expect most people to meet them.

    A better example, I think, is American law in the antebellum period, when judges in free states were required to return runaway slaves to their owners, as the law clearly required. We know what the judges did: they enforced the law. (I don’t know if there were any exceptions.) What should they have done?

  23. Securities Lawyer,

    Fascinating question. You might be interested in reading my response to TF regarding his similar question on Korematsu. See reply to comment submitted on 2014/08/27 at 12:51 AM. In any event, I prefer not to answer your question until I can do some further research about the law during that period, and what, if any, general agreement existed among judges as to the proper course of action. I will try to do that as soon as I can, and respond to your extremely interesting question.

    All the best.

    RGK

  24. Without a doubt, those American judges who enforced the Fugitive Slave Act are a disgrace and should be remembered by history as such. They were criminals of the most deliberate and premeditated stripe. See Thoreau’s Slavery in Massachusetts and Lysander Spooner’s The Unconstitutionality of Slavery.

  25. Securities Lawyer,

    What should judges have done when confronted with Fugitive Slave Act cases? You assume, wrongly, that judges almost always enforced the Act. That is wrong on two fronts. First, when the Act was enforced, it was virtually always enforced by commissioners not judges. Second, there is ample historical evidence that more than a few judges worked their way around the Fugitive Slave Act by finding, for example, that the slaveholder had voluntarily consented to the slave’s freedom by in effect allowing the slave to reside in a free state. For these propositions, I commend to your attention a remarkable book written in 1856 by George McDowell Stroud entitled A Sketch of the Laws Relating to Slavery (Second edition) at pages 271 through 288. Having established that your stated premise is largely false, your implicit conclusion falls of its own weight.

    The Fugitive Slave Act became nearly irrelevant in 1857 after the Supreme Court decided the Dred Scott case. Interestingly, Stroud, writing about a year before that case was decided, acknowledged that the Supreme Court had taken the Dred Scott matter, but he asserted wryly and wrongly that “Having been free, by virtue of the laws of the country or state to which he had been voluntarily carried, I am at a loss to conjure the course of reasoning by which he is to be converted into a slave.” Stroud underestimated Chief Justice Taney’s shameful and unlawful sophistry.

    Thanks very much for your stimulating comment. I learned a lot today because of you. I am very appreciative.

    All the best.

    RGK

  26. RGK: So, if I’m following you, a judge confronted with a conflict between application of the law and a great injustice should attempt to apply the law in such a way that no great injustice results. I don’t have a problem with that approach; it’s what I would do myself. But it doesn’t tell us what to do when no workaround is available and the conflict between applying the law and committing injustice is insuperable.

    I don’t expect you necessarily to have an answer. I don’t have one.

  27. I hate to be a broken record, but this is precisely the approach set forth by Lysander Spooner in The Unconstitutionality of Slavery. And when there was no workaround, Spooner was clear and right: the duty of the judge, of whatever rank, is to declare unjust laws null and void. Spooner demonstrated not only that there is, and can be, correctly speaking, no law but natural law, but that the requirements of justice are in play in virtually every judicial decision, because the very fact a case is litigated is a fairly clear demonstration that “the law” doesn’t provide a cut and dried answer. And what is “justice”? I think it entails a rebuttable presumption against all governmental (i.e., coercive) action.

    Taney’s is the name that’s gone down in infamy, but Dred Scott was 7-2, and it appears from skimming the decision that at least one and maybe both of the dissenters took the view that an escaped slave (as opposed to one voluntarily taken by his master into a free territory) must be returned to slavery.

    I note that Taney made a big show of saying that the court’s job was not to do justice but to follow the law. It’s also highly interesting that the majority decision rested so heavily on what it took to be the intent of the Founders, as shown from sources and history apart from the Constitution’s actual text, while one of the dissenters put great store in the fact that James Madison apparently took great pains to ensure the text of the Constitution was free from any express endorsement of property in men. We are not accustomed to see the benefits of “textualism” from this “liberal” angle, but Spooner was right on the money in saying that if legislators don’t have the gall and the nerve to express “with irresistible clearness” manifest injustice in the text of their enactments then such injustice cannot be taken to be “the will of the people” based on what some of the legislators who enacted it may have at one time or another said.

    I’m glad to hear that some judges apparently did try to evade “the law” to do justice, but I’m not sure what the significance of the fact that some of them were “commissioners” rather than judges is. Isn’t a commissioner essentially a magistrate? I would think their rulings would have to signed off by a judge. Loring was name of the U.S. commissioner of the Circuit court in Boston who sent Sims and Burns back to slavery, whose cases Thoreau so eloquently and vehemently wrote about in Slavery in Massachusetts. He was also a state court probate judge. His name, like Taney’s and his associate “Justices” on the SCOTUS, deserves to live on in infamy and disgrace.

  28. Securities Lawyer,

    You are right. I don’t have an answer to the hypothetical you posit. But, at least with Anglo-American law, you must push the hypothetical really hard in order to conclude that a judge must rely upon “justice” as a normative principle in order to remain a judge. Almost always, a moral judge can remain a judge by simply relying on “law.” My problem with pushing the hypothetical to the end of the spectrum is that a judge can quickly assume the role of philospher-king in response–and that is dangerous in the extreme to the concept of democracy.

    I have enjoyed our dialogue (I am sure you see the irony of that word). Thanks for your engagement.

    All the best.

    RGK

  29. John,

    Well argued.

    Let me ask a question: You believe in the natural law theory of justice–all people have individual rights in the state of nature that cannot be taken from them by the government. Let’s assume that I, as a judge, believe in the utilitarian concept of justice–the greatest good for the many. Who should win?

    I will be concrete. Let’s take slavery. You (and your friend Spooner) believe that slavery violates nature’s law and a judge must so declare. That is true even if means war. But, if I am the judge, and I am a utilitarian, it is perfectly “just” to sacrifice a relatively small number of blacks rather than risk the destruction of the nation through a civil war. Perhaps Taney was a utilitarian. If so, whose to say he was wrong.

    All the best.

    RGK

  30. In a sense I too am a utilitarian, because I recognize the concept of “necessity.” In fact I think government should be founded on that concept, on the theory that if, as Thomas Paine said, government is a necessary evil, it should be limited to the necessary. And although I’m not an economist, and economics is secondary for me, I am inclined to think that freedom is good economic policy, which is a utilitarian argument. Incidentally, I also think that real across-the-board freedom promotes more equality in the distribution of wealth, which is a very high value for me, and which itself in turn promotes freedom. Hence, while I don’t answer to liberal, I do answer to leftist. My favorite economist is Henry George, author of Progress and Poverty, the most read work of economics in history. (Incidentally, a look at George’s specific policy proposal, the “Single Tax,” shows that I’m not your typical “anarchist.” I do believe government is necessary, and contra Paine, is not evil but good, to the extent it’s limited to the necessary.)

    Irony of ironies, after the Civil War Spooner’s next “famous” work was titled “No Treason,” which was conceived as a defense of those who had fought for the South, on the ground that the South had a right to secede. My point being that, while all the bloodshed of the Civil War might have conceivably outweighed in a utilitarian analysis the liberty of a few blacks, the preservation of “the nation” wasn’t all that important. It wasn’t necessary. It didn’t justify either the Civil War or Dred Scott. (In principle, a war by the North on the South solely to free the slaves would have been justified, but that’s not what the Civil War was about.) I am not by a long shot as big a fan of Lincoln as you have said you are. I imagine I follow Jefferson in this, particularly in his later years, when in his correspondence with Madison and others he passionately advocated the “Ward System,” which is basically government from the ground up, that is, confederacies of confederacies of sovereign individuals.

  31. RGK,

    I apologize for posting twice in succession, but I see that I did not quite respond to “utilitarianism vs. natural law / rights” as you described utilitarianism, i.e., as aiming at the greatest happiness for the greatest number. The economic aspect, which I already mentioned, is part of it. Related to that economic aspect is the reasonable doubts we have as to the “best laid plans of mice and men,” and the capacity of so-called experts to produce happiness for the masses. There is also the consideration that we might be fooling ourselves if we think our care and concern for other people, for strangers, is as far reaching as we think it is. Finally, there is the consideration that freedom itself is a big part of human happiness and flourishing. For example, I think it would be pretty cool to be part of a self-governing community, to reason together with my neighbors and “do justice” with them. But I don’t see that happening in a deliberative body bigger than a hundred or so souls, in something akin to the town hall meeting that Thoreau and Jefferson idealized. Instead, all the really important decisions have been made for me and my neighbors by foreigners in Washington D.C., and if not there in Indianapolis, and none too wisely. We’ve been deprived of this essential element of human happiness and human flourishing. A concern for the greatest happiness of the greatest number would take this deprivation into account.

  32. John,

    In the end, Lincoln was a lawyer’s lawyer, a pragmatist. His ideology–his view of the law in particular–was intensly practical just like any good railroad lawyer of his times. I suspect that your disaffection for Lincoln has much to do with this pragmatisim. In that sense he was very much like Justice Holmes whom I revere for his cold eyed view of justice and the law.

    As for Jefferson, he was our first great American hypocrite. Regarding slavery and blacks his actions in keeping slaves and particularly not freeing them upon is death is a stain his fancy words can never washout.

    All the best.

    RGK

  33. John,

    No need to apologize.

    As for Thoreau and Jefferson they didn’t much like lawyers or judges because the profession stood for the status quo rather than their more radical views on self governance. Now, thoughtful people such as yourself can debate the relative merits of Thoreau or Jefferson’s views on a more perfect society, but I assert that such an elevated level of abstraction is precisely why you don’t want judges basing decisions on one theory of justice vs another. Lawyers and judges are not intellectually equiped or academically trained to deal with “justice” as a concept distinct from the much more narrow legal reasoning we all are trained to use when applying “the law.” Social philosphers and lawyers simply don’t, and cannot by their natures, play well with each other.

    All the best.

    RGK

  34. John,

    Not to quibble but “commissioners” of the type you and I speak off were not “junior judges.” They were paid functionaries who derived their incomes from their success or failure in getting slaves back to their masters. See the discusion of “commissioners” and the summary process they used in A Sketch of the Laws Relating to Slavery (Second edition) at pages 271 through 288. All the best.

    RGK

  35. Lol. “Fancy words,” as in the Declaration of Independence? But you are absolutely right about Jefferson, and I was aware that his hypocrisy was particularly egregious with respect to what happened to his slaves upon his death, although he was hardly the only such hypocrite. Despite my attraction to his ideas, I have written elsewhere of him in the most condemnatiry terms. His name too deserves to live in infamy for his hypocrisy.

    Hence my favorite by far among the founders is Thomas Paine, to whom no such black stain attached.

    My gripe with Lincoln was not his pragmatism, but his willingness to shed massive amounts of blood and run roughshod over liberties in pursuit of an ideal, the Union. He created the modern centralized United States, that foreign abstract monstrosity, that coldest of all cold monsters.

    Believe it or not, I too fancy myself a pragmatist. My favorite political philosopher, even over Spooner, is Albert Jay Nock. I also note that Clarence Darrow, whose views I find congenial (except for his farcical role in the Monkey Trial), was a pragmatic man of the world, a railroad lawyer.

  36. And it is all the pity that our training as lawyers was such, and was so narrow, because like it or not law is applied social philosophy. Instead we are presented with that famous article by that famous jurist whose name I don’t recall which surveyed all the supposed canons of statutory construction and showed they were so much hot air, to be applied willy nilly in service of whatever agenda the judge applying them in a particular case might have. I’m not saying law students should be indoctrinated with my preferred vision of justice, but that the Socratic Method should have been applied to substances closer to those Socrates himself worked with. I should have learned about Spooner’s The Unconstitutionality of Slavery in law school, as well as those materials you’ve linked to from the Judges Trial at Nuremberg and the law regarding slavery. If law is to be a calling, a profession, and not deserving of the scorn Thoreau and Jefferson heaped upon it, it should go as deep as this. Because, inevitably and unavoidably, it in reality does go that deep. This deepness is precisely why we are justified in heaping scorn upon the Taneys and the Lorings of history.

  37. TF,

    Although not a scholar by any means, but rather a popular politician before his appointment, Murphy saw no difference between law and justice. I attribute that to his political life before his appointment to the bench. There are many who say we need more Murphys on the Supreme Court with close connections to the concerns of common people. I am not one of them. Give me a Jackson (or ideally a Holmes) any day.

    All the best.

    RGK

  38. RKJ,

    Perhaps, but I prefer the label “radical,” which etymologically has to do with the roots, rather than ideals in the air and head. As Albert Jay Nock said, the opposite of “radical” is not “conservative” but “superficial,” and like Nock I consider myself both a radical and a conservative.

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