THE NUREMBERG TRIALS: THE DEATH OF THE RULE OF LAW (IN INTERNATIONAL LAW)*

Ellis Washington**

[President George Bush’s speech] the “axis of evil” caused a sensation around the world because it established a new American foreign policy based on three distinctive principles: morality, preemption, and unilateralism.
~ Charles Krauthammer¹
[W]ar . . . is an illegal thing.
~ Henry Louis Stimson²

I. PROLOGUE AND HISTORICAL CONTEXT OF THE NUREMBERG TRIALS

A. PRESIDENT TRUMAN, LIBERAL UTOPIANISM, AND THE SEEDS OF TYRANNY

Harry Truman became President of the United States in April of 1945, just prior to the fall of Germany. On May 7, 1945, less than a month after his inauguration, V-E Day was celebrated. Originally, Truman was resistant to appear at an international conference; however, postwar complications with the Soviet Union made it imperative that the President meet with the war Allies. Therefore, Truman, along with Joseph Stalin and Winston Churchill met in Potsdam, Germany in July to confer with other European leaders on the outcome of Europe after Germany’s unconditional surrender.³

The Potsdam Conference or the “Potsdam Protocol” of August 2, 1945, determined that each of the four Allied powers would prosecute separate parts of the Nuremberg Trials. Nuremberg, a small industrial town in Bavaria, was chosen as the location because in 1935 it was the city where Hitler’s infamous discrimination laws were drafted which deprived the Jews of their civil rights, were drafted. Also, Nuremberg had one of the few prisons still in tact after the tremendous bombing campaign Germany suffered. However, episodes shortly preceding the Potsdam Conference were not favorable to those who wished for postwar solidarity among the Allies. Soon after the Yalta Conference, where the decision was made by the Allies to try German leaders as war criminals, the Soviet Union not only began consolidating its power and control over most of Eastern Europe, but made accusations that the Western Allies had been clandestinely negotiating with Germany without its input. President Truman apparently believed (at least early on) that he could persuade Stalin to be less aggressive in his land grabs and to become more conciliatory and reasonable. However, as President Truman’s foreign policy advisors, W. Averell Harriman and George Kennan, forewarned, the Soviet Union was determined to expand its empire and spread its communist ideology to as many nations as possible despite objections from the Allies. Even more ominous was that once this expansionist policy was enacted, it would be almost impossible to contain. When Truman cancelled the Lend-Lease Act in May 1945, an act which would have facilitated a large loan to the Soviet Union, Stalin became more angered, which only furthered the Soviet’s resolve toward communist expansionism over all of Eastern Europe.

The opening of the Potsdam Conference was held as the war against the Japanese was continuing at full force. During the conference, Truman briefed the Allies on the progress of the war against Japan led by General Douglas MacArthur. The Allied powers agreed that the war would end only after an unconditional surrender. Apprehensive of a fruitless and bloody last defense of the home islands by the Japanese, the Allies accepted Stalin’s renewed guarantee to join the war against Japan. President Truman contacted Stalin on July 24th after receiving word of the successful testing of an atomic bomb. However, the Soviet dictator appeared disinterested in the news. On July 26, 1945, the British and Americans, without consulting the Soviet Union, demanded in the Potsdam Declaration that Japan submit to an unconditional surrender.⁴

B. THE GERMAN QUESTION

The Allies’ main concern after Germany’s surrender was determining the most effective way to disarm and de-Nazify Germany and bring charges against the remaining Nazi leaders for war crimes. During the London Conference from June 26 through August 8, 1945, the Allies formulated the idea of a Military Tribunal and a special international trial. However, negotiations were hindered by the Soviet desire for collective retribution as opposed to the U.S. idea to prosecute a finite group of Nazi leaders for “conspiracy” to commit war crimes.5 Unfortunately, the Allies chose the latter, and the Soviet proposal to punish all of the guilty was deemed unworkable. Administration of German businesses was to be assigned to an Allied Control Council in Berlin, made up of British, French, Soviet, and American representatives of the four occupied zones. The Control Council’s stated purpose was to preside over and administer the affairs of the defeated nation as a single economic entity. However, the precise nature of a future German government structure continued to be vague, and the verbal agreement on German unity militated against Stalin’s persistence to maintain the Soviet zone under communist authority. The Soviet Union eventually relented on its more persistent claims for reparations from Germany when it was able to obtain industrial equipment from the western zones, which was facilitated by the United States in May 1946. More dangerous for the future unity of Germany, however, was the Allies’ agreement to divide Berlin into four sectors. Since the Allies did not condition a land corridor or access roads to guarantee freedom of movement between their respective zones, in 1961 the Soviet Union shrewdly erected the infamous “Berlin Wall,” segregating East Germany from West Germany.

C. THE UNITED NATIONS

President Franklin Delano Roosevelt, the Democratic Party, and most European leaders had long sought for an international organization to supersede the modest efforts of the League of Nations⁶. Truman was elated that this utopian dream had finally come to fruition when he addressed the opening session of the San Francisco Conference in April 1945 to work out the details of the United Nation’s (U.N.) Charter, and its subsequent signing on June 26, 1945.⁷ Although passed by the United States Senate and ratified on July 28, 1945, neither the United States nor the Soviet Union approved the idea for an international police force.⁸ Notwithstanding, the Charter allowed for police action against “an aggressor nation state.”⁹ To Truman and most European leaders, the U.N. was the most promising hope for world peace available, and Truman hailed the Charter as “a solid structure upon which we can build a better world.”¹⁰

In its pursuit for peace through negotiation rather than war, the U.N. installed a General Assembly, a world forum for the deliberation of issues affecting all members, and a Security Council consisting of six temporary and five permanent members–Britain, France, the Soviet Union, China, and the United States.¹¹ The Economic and Social Council, the Trusteeship Council, and the International Court of Justice were three of the more important organizations founded under the Charter.¹² A Secretariat, headed by a Secretary General, performed the administrative work of the organization.¹³ The U.N.’s founding documents were signed by the Allied powers in August 1945 at the close of the London Conference and completion of the Treaty of London.¹⁴ This formalized the U.N.’s Charter and its judicial arm, the Tribunal. Now all of the international globalist structures were in place to answer the German question and bring the Nazi leaders to justice. Or were they?

II. THE SHAMEFUL LEGACY OF THE NUREMBERG TRIALS IN CONTEMPORARY JURISPRUDENCE

I have never been comfortable with the moral/legal authority and the legitimacy of the Nuremberg Trials, with its philosophical underpinnings of positive law and legal positivism, its judicial outcomes that look askance at legal/moral constructs such as vengeance, the unity of legality and morality, right and wrong, good and evil, absolute truth, God, but most importantly, its continued inimical effects upon our present-day legal system in America. Legal positivism is riddled with many flaws: it fails to take account of sources of law that are independent of the state, i.e., indigenous sources; it fails to distinguish between de jure and de facto sovereignty; it fails to take account of functions of legal rules other than the “command” function; it fails to take account of legal obligations of the state; and it contains a variety of other defects.¹⁵ These flaws in positive law inexorably lead many legal theorists and philosophers to erroneously view law through the rose colored lens of the letter of the law at the expense of the spirit of the law.

In my analysis of the Nuremberg Trials, I am merely seeking to uphold the common sense principles of the rule of law and to consciously avoid the pitfalls of other books and articles on the subject, getting bogged down in the minutiae of conflicting statutes of different countries, jurisdictional speculations, and sovereignty issues.¹⁶ The broad, generalized and objective principles of natural law will be more than enough to convince any reasonable person of the Nazi defendants’ guilt and the requisite imperative for any legitimate legal system that justice, and the law upholding it, be rooted in the inseparability of legality and morality.

My opinions regarding the Nuremberg Trials are in many ways markedly different from those of most of the historians and legal theorists I have read. Unlike the conventional view, which holds that the Nuremberg Trials were a vindication of the rule of law and a triumph of justice over the Nazi empire,¹⁷ I view the Nuremberg Trials as a colossal triumph of positive law over America’s original natural law jurisprudence based on the Judeo-Christian tradition. I also contend the Nuremberg Trials contributed greatly to the death of the common law (i.e., the rule of law), which codified those natural law principles in Anglo-American jurisprudence dating back in English law to the Magna Carta.¹⁸ This legal tradition in the Western canon includes other natural law philosophers such as Socrates, Plato, Aristotle, Cicero, St. Augustine, St. Thomas Aquinas, Hobbes, St. Thomas More, Locke, Montesquieu, Blackstone, and virtually all of the framers of the United States Constitution.

Legal theorist, David Adams, defines natural law as “principles and standards not simply made up by humans but rather part of an objective moral order, present in the universe and accessible to human reason.”¹⁹ Natural law is normative and censorial and holds that where human practice and institutions (i.e., statutes, laws, rules, executive orders, and constitutions) fail to measure up to natural law they are not considered to be legitimate law, and the people are obliged not to follow such laws (for example, Jim Crow laws or de jure discrimination statutes).²⁰ Regarding how foundational natural law was viewed by all of America’s constitutional framers and was embodied in its founding documents, constitutional scholar, David Barton, writes:

The philosophers embraced by the Founders all expounded a similar theme: the importance of Natural law and the Bible as the foundation for any government established by men. Natural law and the Bible formed the heart of our Founder’s [sic] political theories and was incorporated as part of their new government.²¹

David Adams defines positive law as law that is posited or dictated by man.²² It is expository and analytical. It is a system of orders, commands or rules as opposed to principles, made by man for man, apart from any supernatural source, to be enforced by the raw, naked power of the Leviathan state. Positive law, by being solely of human origin, is “artificial” as opposed to “natural.”²³ Positive law is, as Justice Oliver Wendell Holmes²⁴ understood it, law as it is. Natural law is, as America’s constitutional framers understood it, law as it ought to be.²⁵ Thus, at the turn of the twenty-first century we revisit the age-old battle between is and ought.²⁶

The seeds of positive law planted by the nineteenth century English legal theorists Jeremy Bentham (1748-1832)²⁷ and John Austin (1790-1859)²⁸ were watered by an American Supreme Court packed with liberal justices during President Franklin Delano Roosevelt’s four term reign of the 1930s and 1940s²⁹ and given world-wide legal legitimacy by the newly-formed U.N. at the San Francisco Conference, from which sprouted the first international court cases–the Nuremberg Trials (1945-47) and the Tokyo Trials (1946-48). The positive law philosophy of international law relied on in the Nuremberg Trials has by extension further denigrated America’s constitutional republic and has placed the moral precepts and presuppositions foundational to natural law in great jeopardy to such an extent that we are presently witnessing the death of the rule of law in American society.³⁰ As law schools have become more liberal, secular, and humanistic in their worldview since the late nineteenth century, lawyers, judges, and lawmaking institutions have used positive law and legal positivism philosophy in virtually all of America’s law related and law making institutions (i.e., constitutions, courts, Congress, executive agencies, etc.). This has likewise perpetuated and exacerbated the erosion of the rule of law in modern times to such a degree that sophistic propaganda and societal acquiescence to the legal fiction of the separation of law and morality is now viewed by many respected jurists, the mainstream media, and the general public as a sound legal philosophy or an enlightened worldview. It is none of these. The ideological crisis of modern times has robbed America’s legal system of a stable moral foundation to such an extent that few people feel consciously obligated to follow. By separating laws from morals, we have also separated reason from sanity and have opened the floodgates to a public contempt for the rule of law. Unless this moral slide is abated in all of society’s law-related institutions, the downward spiral of increasing societal instability, bad public policy, socialism, democracy (i.e., mob rule), anarchy, and eventually civilizational nihilism, will become America’s lot.

The shameful legacy of the Nuremberg Trials in part resulted from several rather utopian, naïve, and dangerous treaties signed by the participants of World War I: (1) The Briand-Kellogg Pact of 1928 “by which Germany, Italy, and Japan, in common with practically all the nations of the world, renounced war as an instrument of national policy”;³¹ (2) The Geneva Protocol of 1924 for the Pacific Settlement of International Disputes (the so-called Geneva Convention) signed by the representatives of forty-eight governments, “declared that a war of aggression constitutes . . . an international crime”;³² (3) the Eighth Assembly of the League of Nations in 1927, “on unanimous resolution of the representatives of forty-eight member nations, including Germany, declared that a war of aggression constitutes an international crime”;³³ (4) The Sixth Pan-American Conference of 1928, held that “[a] war of aggression constitutes 47 of the Hague Convention of 1907 in which the United States and many other countries accepted the rules that in an occupied territory of a hostile state “family honor and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected.”³⁵ By these short excerpts of past international treaties ratified by dozens of nations prior to World War II, the German people and the world were fully aware, even from a positive law viewpoint, of the illegality of waging an “aggressive war” against another nation, yet Germany and the Axis powers waged a genocidal war against the world twice in the twentieth century.

The ignominious legacy of a hundred years of positive law legal theory and legal positivism as the philosophical basis for international law and international treaties, has lead to positive law jurisprudence in local, federal, and Supreme Court rulings, both in America and the Occident, leading to the pathetically limited and largely ineffective show trials in Nuremberg–the apotheosis of positive law jurisprudence, liberal judicial activism, and secular humanistic reasoning of the grandest scale.

How did the Nuremberg Trials come about? How could such a tragic abrogation of the rule of law come to be in modern times? Following the legacy of the Nuremberg Trials, just how effective and relevant are contemporary international trials such as those currently being conducted by the U.N. for Rwanda and the former Yugoslavia held at The Hague? How effective and relevant will the upcoming international trials be against the Iraqi dictator, Saddam Hussein, and his brutal regime? According to recent reports, the Rwanda and former Yugoslavia trials cost $100 million a year to operate and to date very few of the leaders, plotters, and planners of these horrific episodes of savagery have been brought to justice.³⁶

Similarities between previous international treaties cited above and the legal philosophy of positive law utilized as defenses in the Nuremberg Trials are startling. First of all, it was the Nuremberg Trials that over fifty years ago legitimized on an international stage and televised to the world the now popular Austinian legal philosophy of the separation of legality from morality. This is a classical tenet of positive law.³⁷ Second, it was this sophistic legal defense that the Nazi defense attorneys relied on most heavily; achieving much success. Surprisingly, out of the twenty-four major Nazi leaders and 128 lesser Nazi leaders tried at the Nuremberg Trials, almost thirty percent of all Nazi defendants were acquitted, and only eighteen percent received the death penalty.³⁸ The overwhelming majority of the Nazi defendants received only token prison sentences. On this point, historian Paul Johnson writes:

[T]he ardour to punish lasted longer but was eventually damped by the march of history. By the time the I.G. Farben executives were sentenced at Nuremberg (29 July 1948), the Berlin blockade had started . . . Karl Krauch, the man who Nazified the firm and personally selected Auschwitz for the Buna plant, got only six years. Eleven other executives got prison terms from eight years to eighteen months – “light enough to please a chicken-thief,” as the prosecutor Josiah DuBois, angrily put it.³⁹

Was justice achieved at the Nuremberg Trials for the six million Jews murdered in Hitler’s concentration camps along with the millions of other Allied soldiers and civilians who sacrificed their lives? My primary intent in this article is to show that the answer is obviously not.

Therefore, I ask the following pivotal question: In modern times, how is the legal philosophy of positive law and legal positivism manifested today? In contemporary American society, the Nuremberg philosophy of separating morality from legality is alive and well in an almost Orwellian allegiance to a worldview that separates one’s personal life from one’s private life. A recent popular example of this is the case of America’s former President, William Jefferson Clinton (1993-2000). During the midst of President Clinton’s legal battles regarding the Paula Jones and Monica Lewinsky affairs, his approval rating remained at sixty percent or higher.⁴⁰ How could a leader of such questionably low moral character enjoy such high poll numbers during his term as President even as evidence of his personal conduct (i.e., obstruction of justice, perjury, lying to a federal judge under oath, jury tampering, etc.) became irrefutable even by his most loyal apologists? The answer is that like the erudite, secular, smug German public of the 1930s, Americans of the 1990s were convinced that since everything seemed to be going well economically, they did not care about the President’s “private” life as long as he ran the country well. Also, President Clinton’s transgressions, though legion, made the average citizen comfortable with his own personal short-comings. Hitler and his henchmen would be pleased, for had they been tried in a court of law today (especially in America), they would have had a good chance of being exonerated for their horrific acts under the positive law philosophy that separates law and morals, which is standard jurisprudence in virtually every American court. Additionally, these Nazi defendants would be given lucrative book, movie, and speaking engagements as “the experts” try to “understand” why the Nazis were so misunderstood by the world. This same naïve, exploitable, and short-sighted mentality was evident seven decades ago when in 1933, Hitler and his small National Socialist Party ascended to power replacing the enfeebled and impotent Weimar Republic, which by the early 1930s was intractably mired in nineteenth century Victorian provincialism, excess, and irrelevance.⁴¹ To most German citizens of the early 1930s, Hitler and  his Nazi party were bold, fresh, energetic, and ostentatious–promising a better life for all German people both in Germany and in the Sudetenland (Czechoslovakia)⁴² and a restoration of Germany’s military supremacy from the harsh military limitations imposed on them by the Allies in the Treaty of Versailles in 1919 after their humiliating defeat in World War I.⁴³ The truth is that under the Nazi regime the German people temporarily enjoyed a higher standard of living, which ended on September 1, 1939, when Hitler broke the Munich Pact with Britain within a year of its signing. As the Nazi blitzkrieg swept across Poland in just three weeks,⁴⁴ England and France promptly declared war against Germany. America declared war on Germany and Japan shortly after the Japanese bombed Pearl Harbor on December 7, 1941.⁴⁵ By 1945, twelve years after Adolph Hitler boasted that his Third Reich would endure for a millennium, Berlin and all of Germany was a smoldering heap of twisted metal, destroyed buildings, and ashes intermingled with a multitude of disfigured corpses. Hitler and most of his generals were killed, captured, or in hiding. The lessons here are demonstrable–one should never sacrifice moral principles for political expediency and economic gain; to do so is to engage in the folly of Goethe’s Faust who sold his soul to the devil for a promise to be young again, only to be tricked by that same devil, ruining his life and that of many others.⁴⁶

B. EXPOSITION

In the Nuremberg Trials (1945-1946), Nazi high officials, officers, and industrialists were tried by an International Military Tribunal for war crimes and other atrocities committed during World War II that violated the accepted laws of war. The charges brought against the Nazi defendants accused them of originating, plotting and waging aggressive war, using slave labor, looting occupied countries, and abusing and murdering civilians (especially the Jews) as well as prisoners of war. As early as October 1943, the Allied powers had decided to try major Nazi officials for war crimes at the conclusion of the war when the American, British and Soviet foreign ministers met in Moscow. Planning for the trials began soon after V-J Day (September 2, 1945), and the Tribunal opened in Nuremberg, Germany on November 20, 1945, before a board of distinguished judges representing each of the Allied countries. Three of the highest Nazi officers, Adolph Hitler, Heinrich Himmler, and Josef Goebbels had committed suicide by the time the Nuremberg Trials were held, but Hermann Goering, Joachim Ribbentrop, Wilhelm Keitel, Alfred Jodl, Ernst Kaltenbrunner, Julius Streicher, Hjalmar Schacht, Martin Bormann (in absentia), Karl Doenitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Rudolf Hess, Erich Raeder, Alfred Rosenberg, Fritz Sauckel, Arthur Seyss-Inquart, Albert Speer, Konstantin von Neurath, Franz von Papen, and Baldur von Schirach were tried one by one for individually specified crimes.47 Of the twenty-four Nazi defendants, twenty-one were convicted; of these, nine were sentenced to prison terms (most were freed within seven years) and the remaining twelve were sentenced to hang.48 Goering and Bormann both escaped hanging; the former by suicide and the latter by remaining at large. Robert Ley hanged himself in his cell, Gustav Krupp was too ill to stand trial, and due to a mix-up with another defendant Krupp’s empire was left intact. Three were acquitted: banker Schacht, Fritzsche (substitute for boss Goebbels), and Franz von Papen (the “Silver Fox”). The rest were hanged on October 16, 1946. Also, other lower level officials were tried, including officers and guards from the Dachau prison camp and civilians who had murdered American aviators. The Tokyo Trials (1946-1948) yielded sixteen imprisonments and seven Japanese leaders were hanged.

For the millions who died at the hands of the Nazis, why were only 177 people judged by the Nuremberg Trials? Regarding Japanese aggression, leading to the death of tens of thousands of Americans at Pearl Harbor and in other battles with Japan, why were only twenty-three Japanese leaders tried? Why were no Italian leaders charged? Italy, led by Mussolini, was Germany’s most ardent ally during the war. Perhaps Mussolini’s death of hanging by the mob was considered adequate punishment for the fact that after the war Italy was a very important anti-communist ally. Why was no mention made in the Nuremberg Trials of the 1939 Nazi-Soviet Pact? The seminal question to any logical, objective observer of the Nuremberg Trials is this: Were the Nuremberg Trials and Tokyo Trials resplendent examples of justice and the rule of law over wicked men, or were the Nuremberg and Tokyo Trials colossal shams of historical proportions representing the denigration of the rule of law? In this Article, I hold that in large part the Nuremberg Trials were indeed a monumental sham.

Critics of the Nuremberg Trials contend that the trials retroactively criminalized actions that under German law had been legal, and the disobedience of such was punishable by death. Vengeance rather than impartial justice was also a familiar refrain as the critics of the Nuremberg Trials claimed that the Tribunal had no recognized legal foundation to try the Nazi defendants.⁴⁹ However, Robert Jackson, as chief U.S. prosecutor in the Nuremberg Trials, argued that the Kellogg-Briand Pact of 1928,⁵⁰ signed by sixty-two nations, as well as several other international treaties, renounced war as a solution for international disputes, making aggressive warfare a capital offense.⁵¹ These treaties were ratified to deter war atrocities identical to the ones for which the Nazi defendants were being tried.⁵²

The conclusion of World War II in April of 1945 witnessed the Allied powers of the United States, Britain, the Soviet Union, and France summarily defeat the Axis powers of Hitler’s Germany, Hirohito’s Japan and Mussolini’s Italy. While the end of World War II signaled the end of the largest and deadliest World War in the history of mankind, it ushered in the beginning of another paradox regarding questions of morality and legality. The problem arose among the Allies about how to punish the senior Nazi officials and other high ranking officers of the Nazi military who were now under international jurisdiction. How could these men be judged for their heinous crimes? How could justice and the rule of law be effectively applied to Nazi war criminals?

Under the United Nations, governments and nation states were seeking to formulate a one–world government.⁵³ This had not been attempted since biblical times when Nimrod, the first world ruler, tried in vain to build a giant ziggurat (a pagan astrological tower) called “the Tower of Babel” in ancient Babylon, the ruins of which still stand today in modern Iraq.⁵⁴ The concept of a United Nations was revolutionary and unique in international law for two reasons: (1) The size and scope of both the number of member nations and its ultimate objectives of a singular world nation with its own World Court,⁵⁵ World Bank,⁵⁶ World Currency, and World Military, dwarfed all previous attempts to form a “one world government”; (2) the League of Nations (which later became the United Nations) was purposely formed under several diabolical philosophies, namely humanism (man is the center of all things), secularism (there is no God but man and the state), radical liberalism (freedom without morality or conscience), positive law and legal positivism (separation of legality and morality), relativism (moral equivalence of all things, or the idea that no person, place, or thing is superior to another), egalitarianism (the equality of results rather than opportunities), and individualism (the severe reduction of restraints to pleasure). Prior to positive law, natural law was the controlling philosophy of international law. Natural law was the originating philosophy of all of American law and its founding documents–the Declaration of Independence, the Constitution, and the Bill of Rights.⁵⁷ In America and Europe, positive law and legal positivism had been growing steadily, concurrent with the advent of the modern Industrial Age of the mid-nineteenth century. Consequently, a hundred years later when the Charter and Tribunal, which were based solely on legal positivism,⁵⁸ created the Nuremberg Court, very few voices were heard in opposition to this radical new legal philosophy as fifteen centuries of natural law philosophy in international law became obsolete by the institution of the U.N.’s Charter and the establishment of the Nuremberg Trials Tribunal.⁵⁹ The fall out from the Allies’ unworkable foreign policy of positive law over natural law as the new philosophical basis and controlling authority of international law would affect the world in apocalyptic proportions just a few years after the Nuremberg Trials concluded in 1949. Directly linked to the tentative, naïve, utopian, and limited scope of the Nuremberg Trials were the Korean War (1952-55) and the Cold War between the United States and the Soviet Union (1945-1989). With a radically expansionist mind set, our Soviet and Chinese allies learned well from their American and European partners that the liberal appeasement politics of the Neville Chamberlain school of public policy would be their primary foreign policy with few exceptions, even to this day.

Another major problem with the Nuremberg Trials was that for the first time, a major trial was conducted on an international stage based solely on the newly created, naturalistic philosophy of the separation of legality from morality. The Nazi defendants, led by Hermann Jahrreiss, the capable associate defense counsel and law professor at Cologne, seized upon this obvious loophole and mounted a viable defense.⁶⁰ They asked: Can we as German citizens of the sovereign nation of Germany, be judged by the Allied powers (i.e., other sovereign nations) under a higher law called international law? If so, then neither Germany nor any of the Allied powers are sovereign powers in the Austinian sense of the word.⁶¹ The defendants deceitfully tried to shift the focus from universal, objective principles—morality, the rule of law, legality, and justice—to the amorphous, subjective area of philosophy and the legal labyrinth of criminal jurisdiction, superior orders, acts of state, ex post facto, nullum crimen, legal positivism, etc.⁶² Further, the Nazi defendants wrongly assumed that because law and morality had been separated, they could escape culpability. Fortunately, justice had not yet become totally separated from reason and common sense. By removing God from the rule of law, the Allied powers unwittingly (I assume) set the stage for other defendants to challenge the rule of law under purely legal terms. During all of the legal proceedings of the Nuremberg Trials, moral considerations did not seriously affect legal outcomes. This was a public relations coup for the Nazi defendants.⁶³ However, under a natural law paradigm, with its strong principled foundation in the Judeo-Christian tradition, public/private morality, American society, and constitutional law lamentably no longer played its vital role of undergirding justice as it did in former generations.⁶⁴ Under the newly created U.N. Tribunal paradigm, the machinery of law was left in the hands of a purely secular, humanist bureaucracy for the first time in Western civilization. The separation of law from morality doctrine, which limited the Nuremberg Trials to purely legal issues, gave the Nazi defendants a plethora of new defenses that were without any foundation (legally or morally) in American constitutional law.⁶⁵

The Treaty of London, signed by the Allied powers on August 8, 1945, became the Charter for the International Military Tribunal at Nuremberg.⁶⁶ The Charter specified three categories of criminal activity and each of the twenty-four Nazi defendants were charged with several counts:

Crimes Against Peace: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of the fore-going;
War Crimes: namely, violations of the laws or customs of war. Such violations shall include . . . murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war . . . wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds . . . whether or not in violation of domestic law of the country where perpetrated.⁶⁷

The prosecutors of the Allied countries used the above terminology from the Charter at the Tribunal to indict the Nazi defendants on essentially four counts: (1) conspiracy to wage aggressive war, (2) waging an aggressive war, (3) commission of war crimes, and (4) perpetration of crimes against humanity.68 The Charter set punishment at death, determining that neither official position nor the orders of a superior were legitimate defenses.69 The fact that membership in the SS, Gestapo, or leadership in the Nazi party was criminal in itself invalidated the principle of individual responsibility for crimes.⁷⁰

In this Article I have chosen to systematically analyze two representative opposing views and two different conceptions regarding the Nuremberg Trials. The first by Charles Wyzanski, Jr., a well-known and respected judge from Massachusetts. The second view is by Justice Robert Jackson, lead American prosecutor at Nuremberg (at the time on leave from his post as a Justice of the United States Supreme Court).⁷¹

C. JUDGE WYZANSKI’S VIEWS ON THE NUREMBERG TRIALS

In April of 1946, Judge Charles E. Wyzanski, Jr. wrote an article titled, Nuremberg: a Fair Trial?, in which he addressed his concerns about the upcoming Nuremberg Trials.⁷² Wyzanski echoed ideas many held in the academy, the liberal press and the democratic party when he criticized the legal validity of the Charter of the International Military Tribunal at Nuremberg, asserting that the Charter created ex post facto law (i.e., after the fact or “new law”).⁷³ Wyzanski also questions three other basic characteristics of the Charter and the Tribunal: (1) The Charter and Tribunal are legal fictions in that they did not and could not exist in any viable legal sense as a system of laws to judge the Nazi defendants;⁷⁴ (2) The Tribunal’s power was omnipotent, becoming prosecutor, judge, jury, and executioner; and, (3) The Charter tried to reconcile two very different legal systems—the Continental system of most European countries and the common law system of the United States and Britain, particularly in regards to criminal procedure and substantive law.⁷⁵ For example, under the Anglo-American common law system, trials are conducted under the guidelines of general

rules of evidence.⁷⁶ The prosecutor and defense are responsible for constructing the best case for themselves based strictly on the evidence of the case at bar through discovery, seeking out all relevant facts, and identifying important legal issues and authorities of legal significance. The judge is by-in-large relegated to the role of a referee, ensuring that each side follows the rules of evidence and proper procedure.⁷⁷ In the Continental legal system, this strict division of labor between the judge, prosecutor, and defense is not followed.⁷⁸ Instead, all parties work together to discover the truth with the judge operating in a more inquisitorial role–even cross-examining witnesses himself.⁷⁹ The German defense counsel at Nuremberg constantly protested what they perceived as the Tribunal’s over-reliance on the Anglo-American legal system.⁸⁰ I agree, for I deem the Continental legal system of the Occident infinitely better adapted at determining the truth. The Nazis’ defense counsel relied heavily on German law to counter the charge of “conspiracy” or “common plan” as not being a recognized crime.⁸¹

Wyzanski goes further and wonders if the Tribunal could even charge these twenty-four Nazi defendants with criminal acts. He appears affronted not only by the very existence of the Nuremberg Trials Tribunal, but outraged that the Tribunal, under color of law, could judge anyone, let alone the Nazi defendants who were protected citizens of a sovereign nation and under the sole jurisdiction of German law. Wyzanski also asks: could any Nazi soldier be personally culpable for acts committed by anyone else? (A form of felony-murder rule is implied here). If the answer is “yes,” Wyzanski holds that it is fundamentally unjust because the law will blame the innocent for the acts of the guilty merely by association or conjecture.⁸²

Another criticism Wyzanski has toward the Tribunal is its violation of a standard rule of law that is fundamental to justice and legality under any republic. Namely, the ancient legal principle–nullum crimen et nulla poena sine lege, “[there can be] no crime and no penalty without [an already existing] law.”⁸³ By criminalizing the Nazis’ actions after the acts were committed, the Charter created new or ex post facto law, thus violating an express provision of article I of the United States Constitution.⁸⁴ Because the Charter breached the U.S. Constitution by including ex post facto elements, Wyzanski holds that the Charter forfeits its legitimacy as “law.”

Both Wyzanski and Charles Jackson pay lip service to natural law, but

then curtly dismiss it. For example, Wyzanski says, “there exists, to cover the most atrocious conduct, a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places, and for violations of which an offender may be tried by any new court, . . . [these principles] would not satisfy most lawyers.”85 In other words, Wyzanski concedes that a universal, international criminal law exists, but these legal principles are inadequate to most lawyers in a court of law. Wyzanski ultimately believes that it is “lawyers” (not God) who determine what the law is. The constitutional Framers would describe this form of international public policy, and its underlying legal philosophy, as legality without morality or tyranny.

Wyzanski’s concluding point questions the necessity of conducting trials such as those held at Nuremberg.⁸⁶ It seemed hypocritical to Wyzanski because in his view the Tribunal was motivated by the Allies’ desire to bring judgment to the Nazi defendants at all costs; the Tribunal was merely a sham legal proceeding and a mechanism of social propaganda–victor’s justice.⁸⁷ He then accuses the Tribunal of being guilty of the same type of legal injustice for which they were condemning the Nazis. For Wyzanski, the principles of nullum crimen and ex post facto are absolute, and any legal system that violates these precepts, the Tribunal notwithstanding, makes a mockery of justice. At the time the Nazis started World War II, aggressive warfare was not expressly prohibited by many international treaties in the sense of holding individuals liable for the crimes of others. In this respect, positive law, as applied to the Nuremberg Trials, is in reality a legal fiction since prior to World War II, there is no historical evidence of a Western nation holding culpable another nation during time of war for “illegal acts of aggression.” Therefore, Wyzanski holds that the genocidal acts of the Nazis against the Jews, part of the “aggressive war” during World War II, was technically not a violation of law.⁸⁸

D. REFUTATION OF WYZANSKI

Although initially in my analysis of the Wyzanski-Jackson debate on the Nuremberg Trials, I thought Wyzanski to be the more liberal of the two, and therefore the one against whom I would most ardently direct my argument, however, upon closer inspection, I found Wyzanski (at least in his rhetoric) to be more prudent, reasonable, and conservative than Jackson in their respective analyses of the Nuremberg Trials. For example, in the opening paragraphs of his article, Wyzanski expressly calls for vengeance, not only against the twenty-four Nazi defendants, but upon “several thousand Germans, including many defendants at Nuremberg, . . . either by death or by imprisonment [to] be permanently removed from civilized society.”⁸⁹ On the contrary, Justice Jackson’s address contained bland platitudes which lacked moral authority.⁹⁰ However, my elation toward his view was short-lived. Wyzanski proceeds to wring his hands as he obsesses over what theory should be applied to judge the defendants. He states, “[i]f prevention, deterrence, retribution, nay even vengeance are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken?”⁹¹

Wyzanski further questions the legality of the existence of the Nuremberg Trials based on his strict Austinian interpretation of the “sovereign.”⁹² His rationale is that since Germany is a sovereign nation, it can be judged only by Germans, under German law. This aberration of positive law provides a difficult and unavoidable problem for many theorists and philosophers who adhere to legal positivism. Accordingly, many positive law theorists have discarded Austin’s so-called “command doctrine” (law as a command of the sovereign that must be obeyed at threat of punishment), judging it to be ineffective, incompetent, unworkable, and, most significantly, anarchical. However, if jurisdictional issues of law can be viewed so narrowly and can be so easily detached from common sense, morality, and the rule of law, the inevitable outcome of the “command doctrine” would be to provide jurisdictional havens for every international law criminal in the world. In their arguments, both Wyzanski and Jackson acknowledge the principles of natural law to counter the Nazis’ defense that they were acting pursuant to superior orders based on the laws of Germany, or the “act of state” defense.⁹³ Surprisingly, Wyzanski reverts to natural law to counter the superior orders defense, arguing that, “under well-known principles of German law, going back to the Middle Ages and differing from current Anglo-American theories, the superior order could be disregarded by a court applying German law, on the ground that it was so repugnant to ‘natural law’ as to be void.”⁹⁴ At least we see repeatedly in Wyzanski’s apologetic on the Nuremberg Trials a reluctant reliance on natural law theory to make his arguments.⁹⁵ However, like Jackson, Wyzanski deems natural law irrelevant in determining what the law actually is.

Judge Wyzanski questioned the legal basis for the categories of criminality and standards of individual liability endorsed by the Charter. Wyzanski is not convinced that the Charter itself is valid “law”; if so, he asks, by virtue of what authority?⁹⁶ Wyzanski’s views regarding the Nuremberg Trials illustrate the danger of having a legal philosophy based solely on secular, utilitarian positive law precepts. For example, Wyzanski asserts that he knows of no international [law] convention “which in explicit words forbids a state or its inhabitants to murder its own citizens, in time either of war or of peace . . . .”⁹⁷ This is an incredible assertion. If there is no international law that forbids a state from wantonly killing its citizens (which is patently untrue), then for Wyzanski, and others adhering to the positive law philosophy, there must be an expressed law in order for such genocide to be illegal.⁹⁸ This is a sobering warning to the entire legal community of the anarchist and nihilist propensities of any nation governed by positive law jurisprudence.

Wyzanski’s primary argument centers on two well-known legal principles—ex post facto and nullum crimen;⁹⁹ however, Wyzanski neglects to give the reader the substantive history of the legal doctrines on which his argument so heavily relies. Both doctrines originated from natural law traditions dating back thousands of years. Therefore, from the start of his argument, Wyzanski is on shaky ground by trying to bolster a positive law argument based on thoroughly natural law principles that he in reality neither respects nor fully understands.¹⁰⁰ Nevertheless, he needs and utilizes natural law principles to give credence to his arguments against the Nuremberg Trials.¹⁰¹ This method of argumentation is wholly self-contradictory. Furthermore, if one looks at ex post facto from a purely positive law view, one could argue that the Nazis were being judged by a set of laws (i.e., the Tribunal) that did not exist at the time the crimes were committed. However, by using natural law principles, the Nazi defendants have no such claim to refuge, for murder has always been a crime in all civilized societies going back to ancient times. There is no “new law” here. The acts of genocide by the Nazis would be considered murder by virtually any nation on earth, regardless of whether the law is codified.

Finally, natural law contains a built-in exclusionary rule, deeming that where human institutions fail to undergird the universal moral order instituted by God, those laws lose their legitimacy as law, and are not to be obeyed. Most importantly, a free, engaged, moral people are not under the obligation to obey the tyranny of a Leviathan government ordering them to obey and respect inherently illegitimate and abusive laws. On the contrary, history has proven that any nation under the unjust rule of a dictator has an unmitigated moral obligation, as human beings made in the image of God, to revolt and overturn these unjust laws even by force if other more diplomatic channels prove futile. This was the paradigm America’s founding fathers took in the eighteenth century to overthrow the tyranny of England and King George III.¹⁰²

If the United Nations Tribunal had relied on natural law principles in conducting the Nuremberg Trials, they would have effectively condemned Nazism as a fraudulent government, a sham state–antithetical to all known universal moral principles. Tragically, since the Nuremberg Trials openly denigrated or ignored the theistic suppositions of natural law, they were conducted solely on secular, humanistic, empirical, relativistic, egalitarian, utilitarian and positive law precepts like Austin’s “act of state,” “superior sovereign,” or “command” doctrines.¹⁰³ Since positive law and legal positivism have no underlying moral authority that is found in natural law, questions of morality are measured against a utilitarian paradigm of what is best for the most people or what legal outcomes allow the best utility for societal ends. Paradoxically, the root of Nazi totalitarianism was germinated by the Nuremberg Trials and has flowered in contemporary times in America and throughout Western Europe. For example, both America and Germany have thriving neo-Nazi movements that continue to spread terrorism, racial hatred, violence, and crime on a massive scale.¹⁰⁴ A few years ago several high-ranking German military officers were forced to resign for turning a blind eye to blatant neo-Nazi activity in their very ranks.¹⁰⁵ Moreover, in 1999, Joerg Haider, an Austrian politician, openly boasted of the great educational systems the Nazis had and how much he values his friendships with former SS Stormtroopers.¹⁰⁶ During the primary election, Haider commanded over twenty-five percent of the Austrian vote and has caused the ruling parties to adopt many of his radical views in order to keep him from winning the popular vote during the general election and bringing further national embarrassment to the Austrian nation.¹⁰⁷

Additionally, Wyzanski’s argument that the Nuremberg Trials violated the principle nullum crimen et nulla poena sine lege (no crime without an existing law), is likewise without legal foundation when viewed through the lens of natural law.¹⁰⁸ The great Prophet/King Solomon, three millennia ago, wisely stated that, “there is nothing new under the sun.”¹⁰⁹ In other words, even before Moses codified the law of God into the Ten Commandments, God had already established this law in the moral universe enacted at the time of creation with the refrain “And God said, let there be . . . .”¹¹⁰ All creation is based on immutable laws—gravity, the first and second laws of thermodynamics, Einstein’s theory of space and time, the oceans and the seas abating at the shoreline, or the structure of the smallest atom. Based on one such immutable law, God was justified in judging Cain for killing his brother Abel¹¹¹ 1500 years before the Ten Commandments were verbally given to the Jewish people by Moses at Mount Sinai.¹¹² The law of God was already known to Cain and ancient humanity by their very existence. Cain knowingly violated God’s universal, objective, moral order–Cain’s conscience. This adherence to the moral law of the universe has stood throughout all civilizations since ancient times, and many historical examples are evident in both Eastern and Western cultural traditions. If the Nazi defendants were judged innocent on positive law grounds, then all of humanity is guilty. Can it be conceivable for a government, such as Hitler’s Third Reich, to create on a colossal scale such 106. See mayhem, destruction, and genocide and not be guilty?¹¹³ Stated another way, if the Nazi defendants are innocent because the world’s brightest jurists could find no pre-existing law to judge them by, then society would be obligated to empty the prisons and never bring anyone else before the bar of justice again, and the concept of guilt/innocence does not exist in any meaningful sense.¹¹⁴ Such a thought is ludicrous at best, however, the logical consequences of Wyzanski’s argument would in essence discard over twenty-five centuries of Western civilization’s adherence to the rule of law, natural law, and biblical theism whose antecedents date back to the ancient Hebrew, Greek, and Roman legal systems. That contemporary culture presently finds it convenient to separate law from morality is dangerous for American culture and its legal institutions. Historically speaking, it would be wise for America to heed the fact that since antiquity one common aspect of previous great world civilizations or world powers is that they have foolishly thought they could break God’s eternal, universal moral laws with impunity.¹¹⁵

E. JACKSON’S VIEW ON THE NUREMBERG TRIALS

Robert Jackson, in his Opening Address for the United States in the Nuremberg Trials, countered objections leveled by the Wyzanski article. Jackson argued that instituting an “aggressive war” clearly violated international law and that World War II was criminally entered into with full knowledge by the German people; therefore, ex post facto and nullum crimen principles were not contravened by the Tribunal.¹¹⁶ However, Jackson appears contradictory when on the one hand, he says, “a Nationalist despotism . . . took from the German people all of those dignities and freedoms that we had natural and inalienable rights in every human being,”¹¹⁷ and on the other, “[i]f the German populace had willingly accepted the Nazi program, no Stormtroopers would have been needed . . . for concentration camps or the Gestapo . . . .”¹¹⁸ Conversely, Jackson also states, “[the Nazis] excited the German ambition to be a master race . . . led their people on a mad gamble for domination.”¹¹⁹ The implication Jackson seems to make is that the German people were merely innocent bystanders during Hitler’s and the Third Reich’s rise to power. However, I must agree with the view of a noted historian who postulated that the Germans were willing participants in Nazi genocide against the Jews. Historian Paul Johnson writes:

From Hitler’s silence downwards, the entire operation of genocide was permeated by unspoken, unspeakable guilt . . . .

Hence security around the death-camps was elaborate. The wife of a German officer, who at a confused railway junction got onto a death-train by mistake, was ordered to the ovens nonetheless so that she could not relate what she had seen . . . . There were 900,000 people in the SS alone. Countless Germans heard and saw the endless trains rattling through the night, and knew their significance . . . .¹²⁰

In American history there are equally chilling examples of public complicity in the face of genocide. For example, southern whites fought and died 5 (for each slave) to 1 in their failed efforts to keep slavery the law of the land during the Civil War of the 1860s. Likewise, the German people willingly followed Hitler and his Third Reich and zealously absorbed its maniacal propaganda of “purging” from the earth the inferior races of the world and seeking to establish on their charred corpses a thousand-year Reich (i.e., white Aryan world supremacy). At the time the Tribunal convened in November 1945, there were several international treaties and agreements that expressly criminalized “aggressive warfare,” and each of these treaties were ratified by many nations (including Germany) dating back to the turn of the century. Moreover, Jackson contends the world’s nations have a right under international law to create new laws, to ratify new treaties and agreements that can become a foundation for the development and continual growth of international law.¹²¹ To this end, Jackson refused to allow the defendants to hide behind the Nazi complaint that international law would continue to “lag so far behind the moral sense of mankind.” Therefore, the assertion by Wyzanski and the German defense attorneys that the Charter is not law because its central precepts are ex post facto is sophistic and illogical.¹²² Jackson asks the rhetorical question that has strong overtones of natural law: “Does it surprise these men that murder is a crime?” Jackson concludes that since genocide and torture are crimes, it should not come as a surprise to anyone that these venal deeds be punished. Furthermore, Jackson holds that it is rank hypocrisy for the Nazi party, whose very existence is owed to the complete annihilation of the rule of law, in furtherance of their genocidal madness of white supremacy, to then take refuge behind this same universal rule of law to shield them from the bar of justice.¹²³

F. REFUTATION OF ROBERT JACKSON

In response to Wyzanski’s argument against the legality of the Nuremberg Trials, Jackson’s opening statement to the Tribunal, although well written, was generally tentative, weak, mechanical, and lacking in moral authority. The Nuremberg Trials were pathetically shortsighted and limited in scope. Jackson admitted as much during his opening remarks when he stated, “[t]he case as presented by the United States will be concerned with the brains and authority back of all the crimes . . . . We want to reach the planners and designers, the inciters and leaders. . . .”¹²⁴ Why were the Nuremberg Trials concerned only with the planners and designers, the inciters and leaders?–The brains, if you will, and not the brawn of the perpetrators of Nazi genocide is beyond the pale. Furthermore, Jackson offers no reasonable explanations of the pathetically narrow scope of the Nazi leaders that the Tribunal was even interested in bringing to justice. Jackson further concedes the legal fiction of positive law as being “artificial” when he states that all wars from World War I to time immemorial, were not considered crimes. “There was a time, in fact I think the time of the [F]irst World War, when it could not have been said that war inciting or war-making was a crime in law, however reprehensible in morals.”¹²⁵ Next, Jackson repeatedly shows his liberal activism by his aversion to vengeance. Remember that prior to Jackson’s being hand-picked by President Truman to be the chief prosecutor of the United States at the Nuremberg Trials, former President Franklin Delano Roosevelt hand-picked him in 1941 as part of his Machiavellian effort to “pack the Supreme Court” with liberal activist judges to help pass his Leviathan government New Deal policies.¹²⁶ Jackson even bragged about the Allies’ restraint when he stated, “stay[ing] the hand of vengeance . . . is one of the most significant tributes that Power ever has paid to reason.”¹²⁷ However, Jackson shows no such aversion to the hundreds of thousands of Nazis and Nazi sympathizers who escaped judgment for the millions of people they murdered. Many Nazis are enjoying the fruits of freedom and great wealth through their “neutral” aiders and abettors, the Swedish bankers via their closed banking system, even until this day.¹²⁸ Also, he boasts of lessons learned from World War I, stating, “[e]ither the victors must judge the vanquished or we must leave the defeated to judge themselves. After the First World War, we learned the futility of the latter course.”¹²⁹ Did we? If so, then why are there probably hundreds of thousands Nazis still alive today, unrepentant and unpunished while millions of Jews must suffer the inconsolable pain of having fifty percent of their friends, family, and countrymen murdered in Hitler’s ghastly gas chambers of death, tortured by Mengela’s ghoulish medical experiments, or shot by Nazi henchmen?

Like Hitler’s, Wyzanski’s and Jackson’s philosophical base is positive law and legal positivism. Jackson’s belief in the separation of law and morality is clearly evident in his Opening Address when he said, “[w]e charge guilt on planned and intended conduct that involves moral as well as legal wrong,”¹³⁰ although throughout his remarks he makes token concessions to natural law by stating, “[t]he Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, ‘under God and the Law.’”¹³¹ Citing Justice Coke of course is a concession to the verity of natural law jurisprudence, for Justice Coke was one of the towering natural law jurists of his time and was not loath to challenge even the sovereignty of King James himself–the potentate whose biblical translation of 1611 is still the most revered English language version of the Bible. However, even though Wyzanski and Jackson echo natural law ideas, they do so only in a sentimental, impotent, self-serving way to bolster their legal arguments. I doubt Justice Jackson thought for a moment that natural law is any longer a viable, competent legal philosophy that is the foundation of the rule of law.

Jackson, as a liberal globalist utopian, in his primary attack against the Nazi defendants, celebrates the moral authority and primacy of the international law treaties the Germans had signed and under whose authority they knowingly submitted.¹³² However, international treaties, as important as they are in maintaining civility among the nations of the world (at least in theory), in reality become merely symbolic posturing by politicians, and are usually broken before the ink dries on the document signed. For example, who will forget the impotency of England’s Prime Minister, Neville Chamberlain, naïvely waiving a “peace agreement” he had just signed with Hitler in the Munich Pact of 1938 and pompously proclaiming, as he arrived at the airport in England: “We have peace in our time.”¹³³ Hitler promised after his invasion of Czechoslovakia (which he needed to expand Germany’s borders for living space–lebensraum), that he would not invade Europe. He so promised, even as the tanks rolled toward Poland’s borders—less than a year after the Munich Pact was ratified—thus leading to World War II on September 1, 1939.¹³⁴

It is imperative to understand that treaties are not sacrosanct, and a failure to understand this belies an ignorance and intractable perversity of human nature, the recent history of World War I, the history of warfare, and the original intent of international law.¹³⁵ Jackson does not seem to understand the meaning, nor the true origins, of international law when he states, “[b]ut International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs.”¹³⁶ This definition is essentially false because international law, prior to the Nuremberg Trials, was based on natural law, the rule of law, and the common law.¹³⁷ The philosophical presuppositions of international law were not thought of in humanistic, abstract, secular terms but in terms of immutable principles rooted in theism, the Judeo-Christian tradition, the Bible, natural law, and moral order.¹³⁸

Jackson spends considerable time condemning the Nazis for starting an “aggressive war.” What is aggressive war? Can aggressive war be distinguished from “non-aggressive” war? This type of tough-sounding, but ultimately meaningless, rhetoric is indicative of a globalist philosophy born in the minds of the secularist bureaucrats who drafted the Charter. This radical utopian liberal worldview held by the drafters of the U.N. Charter and the U.N. Tribunal indicates that they possessed a fatally flawed understanding of both human nature and military history. How can war not be aggressive? War by definition involves aggression. Has there ever in the history of mankind been a “nonaggressive war”? Even the so-called “Cold War” between the United States and the Soviet Union was aggressive in that these two superpowers used other countries as proxies in war with each other. Nations have warred since the beginning of mankind, and they have done so without U.N. bureaucrats serving as referees, nor with any canon of rules except that of “victors’ justice”—for good or ill the winner of the war makes the rules. For liberal jurists like Jackson and others to naïvely hold to a utopian worldview that mankind’s sinful nature can be reformed by man is fatuous, untenable, and as history has repeatedly shown, ultimately genocidal.

Only by following the enduring theistic principles of natural law, with its emphasis on man’s foibles tempered with the iron rod of God’s law, can the intractable gulf between man to man, man to God, and man to law be ultimately reconciled. Jackson’s Opening Address at the Nuremberg Trials represents the birth of the diabolical philosophy of secular humanism, which is an outgrowth of positive law and the death of the theistic suppositions of natural law and its antecedent philosophies—the English common law and the rule of law. Jackson and others like him in the U. N. believed that all of mankind’s problems can be solved by man alone without resort to what liberal jurists such as, Wyzanski, Oliver Wendell Holmes, Cardozo, Roscoe Pound, Llewellyn, Brennan, Thurgood Marshall, and the socialist bureaucrats of the U.N. consider anachronistic myths and naïve metaphysics of natural law that are totally unnecessary in humanity’s march toward utopia and salvation through their new gods—humanism and technology. So inane and ludicrous are some of the pontifications by these socialist bureaucrats as to hardly merit comment. For example, President Franklin Delano Roosevelt’s own Secretary of State, Henry Lewis Stimson, at one time boldly proclaimed: “war . . . is an illegal thing” or the Briand-Kellogg Pact of 1928 that renounced war as an instrument of national policy.139 First of all, what type of policy could war be other than a national policy? Even America’s Civil War had great national policy implications—England and Spain were allied with the South; the French were allied with the North. Second, to try to make war illegal unilaterally or by international mandate is about as effective as creating a law making it illegal for a raging bull to break glass in a china shop. Not only is this law unsustainable and futile, but the wasted time, wasted efforts, and misused resources squandered at achieving the desired results only multiply the inevitable disaster.

G. CONCLUSION

In the final analysis, what has Judge Wysanski’s, Justice Jackson’s, and the U.N.’s faith in secular humanism, positive law, and utopian liberalism given the world these past six decades? Unfortunately, it has spawned the war between South Korea and North Korea, the escalating Israeli-Palestinian conflict, the American-Iraqi War (Operation Desert Storm),¹⁴⁰ and America’s present war with Iraq (Operation Iraqi Freedom), the anarchy and savagery of Haiti, the Rwandan genocide and general anarchy throughout virtually all sub-Saharan Africa, and the perpetual Bosnian-Croatian-Serbian-Albanian quagmire in the Balkans and its subsequent War Crimes Tribunal of the former Yugoslavia. And what of the major international organs of the United Nation—The World Trade Organization (WTO), the World Court in The Hague, the International Monetary Fund, and the World Army that was given sanction to exist by member states in 1999? And finally, what I consider the most diabolical and dangerous threat to America’s sovereignty and its moral authority that undergirds its rule of law,¹⁴¹ the ongoing assault by the United Nations member States, particularly our historic Allies—the Soviet Union, France, Germany, Canada, China—reflectively voting against the sovereignty of the United States through the United Nations at every opportunity. These are but a few of the many “aggressive war” situations that Justice Jackson promised the world the United Nations would prevent in his Opening Address at the Nuremberg Trials.

Prosecutor Jackson also stated that history would judge their efforts at Nuremberg and judge them it has. The U.N.’s worldview, and the legal positivism philosophy on which it is based, has proven repeatedly throughout the myriad of subsequent “war crimes” tribunals and the international treaties they have spawned to be totally inadequate, incompetent, and impotent at preventing either “aggressive war,” “crimes against humanity,” “crimes against peace,” “conspiracy to commit war” or any type of war for that matter. Mankind will continue to wage war at

every opportunity that it is able—that is one of the most irredeemable and intractable aspects of human nature. If civilization is to have any hope of avoiding self-annihilation, America, as the world’s sole “superpower,” must return its original understanding of a Rule of law and Natural law legal concepts based in the Judeo-Christian tradition—a natural law approach to the law that presumes the unity of legality and morality not their separation. A return to the original natural law philosophy the constitutional Framers relied on when they wrote the Declaration of Independence, the Constitution, and the Bill of Rights. Unless and until America returns to legitimate constitutional jurisprudence and to a worldview rooted in the immutable principles of objective moral order, a Constitution based on the original natural law precepts of the Framers and the primacy of the rule of law, America’s end will be the same as the end of all other great nations of antiquity—Egypt, Babylon, Assyria, Persia, Greece, Italy, France, Great Britain—unprincipled public policy, societal breakdown and deconstruction, democracy, socialism, anarchy, nihilism, and death.¹⁴²

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* Exceeding thanks to my best friend, my mentor, my muse, my oracle, attorney Che Ali Karega (a.k.a. “the Machiavelli”) for providing me with a peaceful, inviting environment in his home in Southfield, Michigan, where the only rule in his house is that any true intellectual pursuit is welcomed. I also thank Che for providing me a venue where I could be myself, where I could be a philosopher-king, where I could be a man of gravitas . . . where I could be a Black scholar without fear of envy or reprisals. Finally, thanks to Che for his invaluable editorial advice on points of history, grammar and syntax. For this Article I am also deeply indebted to the legal scholarship of David Barton and Judge Robert Bork, particularly, their well-written books on legal philosophy and its integration with society. See generally DAVID BARTON, ORIGINAL INTENT: THE COURTS, THE CONSTITUTION, AND RELIGION (2d ed. 1997) (discussing the religious background of the American Constitution and courts); ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) (illustrating the fundamental difference in the function of legislators and judges, namely the judiciary’s role as an interpreter of the law and the legislature’s function as a law-making body); ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE (1997) (arguing that the decline of modern culture is causally linked to the rise of modern liberalism). An earlier version of this Article appears under the title: The Nuremberg Trials: Birth of the Death of the Rule of Law, in ELLIS WASHINGTON, THE INSEPARABILITY OF LAW AND MORALITY: THE CONSTITUTION, NATURAL LAW AND THE RULE OF LAW 76-95 (2002) [hereinafter WASHINGTON, INSEPARABILITY OF LAW AND MORALITY]. See generally Ellis Washington, Reply to Judge Richard A. Posner on the Inseparability of Law and Morality, 3 RUTGERS J. L. & RELIG. 1 (2001).

** Ellis Washington, DePauw University; B.A. 1983, University of Michigan; M.M. 1986, John Marshall Law School; J.D. 1994. He was an editor at the University of Michigan Law Review and a law clerk for the Rutherford Institute. He was a member of the Board of Visitors at Ave Maria School of Law. Currently, Ellis Washington works at Warner Norcross & Judd LLP and teaches business law and contracts at Davenport University. He is a lecturer at Michigan area schools, universities, and law schools, specializing in the history of law, legal and political philosophy, jurisprudence, constitutional law, critical race theory and legal feminist theory. He has published three books: THE DEVIL IS IN THE DETAILS: ESSAYS ON LAW, RACE, POLITICS AND RELIGION (1999), BEYOND THE VEIL: ESSAYS IN THE DIALECTICAL STYLE OF SOCRATES (rev’d ed. 2003), THE INSEPARABILITY OF LAW AND MORALITY: THE CONSTITUTION, NATURAL LAW AND THE RULE OF LAW (2002).

This article’s significance has been recognized by many institutions throughout the world, including: The U.S. Holocaust Memorial Museum, The Simon Wiesenthal Center, The collected papers of all nine present Justices of the United States Supreme Court, The Ronald Reagan Presidential Library, The George H.W. Bush Presidential Library, The Helen G. Simon Hillel Center at Indiana University, Yad Vashem Library (Jerusalem), State Museum of Auschwitz-Birkenau, Leo Baeck Institute (New York), Harvard Law School, Israeli Ministry of Foreign Affairs (Jerusalem), The Jewish Agency, World Zionist Organization, and YIVO Institute for Jewish Research Today. 1. Charles Krauthammer, The Axis of Petulance, WASH. POST, Mar. 1, 2002, at A25. 2. Henry L. Stimson, [Secretary] of War 1911-1913, 1940-1945, Secretary of State 1929-1933, was very influential. In fact, he recommended the use of the atomic bomb to Truman (as chair of the Interim Committee). Stimson was encouraged by Conant to publish an article in Harper’s Magazine explaining the decision to drop the bomb. Stimson and Conant were both concerned that w/o public support for a willingness to drop the bomb in the future and the decision to drop it on Hiroshima and Nagasaki in the past, the US would lose clout against the Soviets in UN negotiations and in vies for attracting 3rd world nations (this is also a reason nuclear power was encouraged commercially, to increase U.S. international prestige).

Henry L. Stimson, Essay 1, at www.people.virginia.edu/~ejk4e/hius316/answers.htm #Stimson (last visited Oct. 15, 2003). See also Robert H. Jackson, Opening Address for the United States, Nuremberg Trials, in DAVID M. ADAMS, PHILOSOPHICAL PROBLEMS IN THE LAW, 7, 12 (1992) (describing Henry Stimson’s views on war). 3. PAUL JOHNSON, A HISTORY OF THE AMERICAN PEOPLE 800-06 (1998); 2 REBECCA BROOKS GRUVER, AN AMERICAN HISTORY 992-95 (2d ed. 1976). Shortly after the meeting in Potsdam, Sir Winston Churchill was replaced as Prime Minister by Clement Attlee, following the election victory by the British Labour Party in July, 1945. This replacement in leadership at such a crucial time in history was both shocking and ironic. Shocking, because never in the history of British politics had a sitting wartime Prime Minister not been reelected by a large margin. Ironic, because Churchill, arguably the greatest statesman and political leader of his time, broughtEngland from the brink of annihilation during the almost incessant bombings of Hitler’s infamous Luftwaffe by his steely demeanor and the sheer moral force of his will. 4. JOHNSON, supra note 3, at 804-06; GRUVER, supra note 3, at 992-96. An important agreement that came out of the Potsdam Conference was the creation of a Council of Foreign Ministers to work out the peace treaties for Italy, Austria, Hungary, Rumania, Bulgaria, and

Finland. Id. Meetings between July and August 1946 produced peace treaties with all these countries except Austria. Id. A treaty with Austria was finally worked out in 1955, and only then were Soviet troops removed. Id. at 995. 5. GRUVER, supra note 3, at 994-95. After the London Agreement in August 1945, the Allied powers drafted an agreement called The Prosecution and Punishment of the Major War Criminals of the European Axis. Id. In this document they stated that the reasoning and scope behind the creation of a special International Military Tribunal was to try the twenty-four Nazi defendants “whose offenses have no particular geographical location.” Agreement on the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 3 Bevans 1238 [hereinafter Treaty of London]. The plan followed the Moscow Declaration, Oct. 30, 1943, 9 Dept. of State Bulletin 307, 310-11. The Charter of the Tribunal, detailed in the Treaty of London articles 6(a), 6(b) and 6(c), listed three specific crimes with which the Nazi defendants were to be charged: crimes against peace, war crimes and crimes against humanity. Treaty of London, supra art. 6. However, a fourth charge, common plan or conspiracy, was integrated into the language of count one in the indictment and is generally regarded as applying to all three of the previously cited offenses. 1 International Military Tribunal at Nuremberg, Blue Series, at 29, 226 [hereinafter I.M.T., with volume number preceding and page number(s) following].

An original primary source for those interested in this topic is, of course, the comprehensive, Proceedings of the International Military Tribunal. All of the references to this trial material are from the November 1945-October 1946 proceedings of the International Military Tribunal at Nuremberg, reported in the first twenty-two volumes of Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg, 1947-1949). Additional material, which also supports the position I argue may be found in the October 1946-April 1949 proceedings of the United States Military Tribunal at Nuremberg, reported in the fifteen volumes of Trials of the War Criminals Before the Nuremberg Military Tribunals, Control Council Law No. 10 (Washington, 1949-1953) [hereinafter N.M.T., with volume number preceding and page number(s) following].

6. See generally TOWNSEND HOOPES & DOUGLAS BRINKLEY, FDR AND THE CREATION OF THE U.N. (Yale Univ. Press 1997) (discussing Franklin Roosevelt’s role in the creation of the United Nations and his desire to build upon the efforts of Woodrow Wilson); David Golove, From Versailles to San Francisco: The Revolutionary Transformation of the War Powers, 70 U. COLO. L. REV. 1491, 1493-96 (1999) (stating that Roosevelt “undertook the monumental task of vindicating Wilson’s vision through the creation of a new league”). The League of Nations was the multi-national globalist organization President Woodrow Wilson helped create to bring peace to the world after World War I. 7. See HOOPES & BRINKLEY, supra note 6, at 184-87 (stating that Truman was a convinced internationalist). See generally Richard C. Hottelet, Ups and Downs in UN History, 5 WASH. U. J.L. & POL’Y 17 (2001) (discussing Truman’s address to the San Francisco conference). 8. See U.N. CHARTER arts. 39-51 (providing that the U.N. will not have a standing army, however forces will be composed of member states if called upon by the Security Council). See also HOOPES & BRINKLEY, supra note 6, at 205 (discussing the U.N. Charter). 9. U.N. CHARTER art. 42. 10. HOOPES & BRINKLEY, supra note 6, at 185.

11. U.N. CHARTER arts. 9 & 23. 12. Id. at arts. 61, 86, 92. 13. Cf. GRUVER, supra note 3, at 992-96.

14. U.N. CHARTER art. 97; See MAURICE BERTRAND, THE UNITED NATIONS: PAST, PRESENT, AND FUTURE 31-36 (1997) (discussing the various rolls of the organs of the U.N.).

15. Some classics on the subject of legal philosophy and the history of law are the following works: SIR HENRY MAINE, LECTURES ON THE EARLY HISTORY OF INSTITUTIONS chs. 12-13 (4th ed., Gaunt 1998) (1875) (discussing English sovereignty and empire); 2 JAMES BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE, ch. 10 (1901) (explaining the nature of legal and practical sovereignty); H. L. A. HART, THE CONCEPT OF LAW, chs. 2-3 (1961) [hereinafter HART, CONCEPT OF LAW] (addressing the variety of laws and commands in society); Roger Fisher, Bringing Law to Bear on Governments, 74 HARV. L. REV. 1130, 1130-40 (1961) (suggesting that a realistic approach to international law should understand motivations for domestic governmental compliance). Ronald Dworkin called legal positivism the form of law “accepted in one form or another by most working and academic lawyers who hold views on jurisprudence.” Ronald M. Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14, 17 (1967), reprinted as Is Law a System of

Rules?, in ESSAYS IN LEGAL PHILOSOPHY 25, 28 (Robert S. Summers ed., 1968). See also JOHN W. SALMOND, THE FIRST PRINCIPLES OF JURISPRUDENCE, 97-98 (London, Stevens & Haynes 1893) (giving definitions of law by famous scholars). In his writings Salmond protested against “the creed of what is termed the English school of jurisprudence” because it “attempted to deprive the idea of law of that ethical significance which is one of its most essential elements.” Id. at 9, 10.

16. See infra notes 57-65 and accompanying text (discussing articles that get bogged down with such minutiae).

17. See Jackson, supra note 2, at 14-20 (stating the basis on which the Tribunal will achieve justice).

18. Common law: the system of jurisprudence, which originated in England and was later applied in the United States, which is based on judicial precedent rather than statutory laws . . . the Common law is generally derived from principles rather than rules; it does not consist of absolute, fixed, and inflexible rules, but rather of broad and comprehensive principles based on justice, reason, and common sense. It is of judicial origin and promulgation. Its principles have been determined by the social needs of the community . . . .
BARRON’S LAW DICTIONARY 81 (Steven H. Gifis, ed., 2d ed. 1984) (third and fourth emphasis added). See also Miller v. Monson, 37 N.W.2d 543, 547 (1949) (defining common law).

19. ADAMS, supra note 2, at 20. See generally HANS KELSEN, GENERAL THEORY OF LAW AND STATE 58-61, 143-44 (1945) (stating that all laws, not only those granting rights and powers, can be reduced to such “primary norms” whereby sanctions can be imposed). 20. ADAMS, supra note 2, at 20. A well-known precept of English Common law held that if an official abused the power of his office, he would lose the protection of his office and become liable to the citizen right-holder whose rights would be upheld by the sovereign (the Tribunal, court, etc.). See, e.g., Johnstone v. Pedlar, [1921] 2 A.C. 262, 275 (appeal taken from Ir.).
When a wrong has been done by the King’s officer to a British subject, the person wronged has no legal remedy against the Sovereign, for “the King can do no wrong”; but he may sue the King’s officer for the tortious act, and the latter cannot plead the authority of the Sovereign, for from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong.
Id. at 275 (citations omitted). 21. DAVID BARTON, THE MYTH OF SEPARATION: WHAT IS THE CORRECT RELATIONSHIP BETWEEN CHURCH AND STATE? A REVEALING LOOK AT WHAT THE FOUNDERS AND EARLY COURTS REALLY SAID, 196-97 (6th ed. 1992). 22. ADAMS, supra note 2, at 20. 23. ADAMS, supra note 2, at 20. See also HAGERSTROM, INQUIRIES INTO THE NATURE OF LAW AND MORALS 217 (Olivecrona ed., 1953) (“[T]he whole theory of subjective rights of private individuals . . . is incompatible with the imperative theory.”). “The description of them [claims to legal protection] as rights is wholly derived from the idea that the law which is concerned with them is a true expression of rights and duties in the sense in which the popular notion of justice understands these terms.” Id. at 221.

According to Hart, “[Hagerstrom] insisted that if laws were merely commands the notion of an individual’s right was really inexplicable, for commands are, as he said, something which we either obey or we do not obey; they do not confer rights.” H. L. A. Hart, Positivism and The Separation of Law and Morals, 71 HARV. L. REV. 593, 605 (1958) [hereinafter Hart, Positivism and Separation]. 24. Oliver Wendell Holmes served as a United States Supreme Court Justice from 1902-1932. G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 155-60 (Oxford Univ. Press 1988). 25. See Edward S. Corwin, The “Higher Law” Background of American Constitutional Law, 42 HARV. L. REV. 149 (1928) (discussing the evolution of the philosophy of law); Arnold Brecht, The Myth of Is and Ought, 54 HARV. L. REV. 811 (1941) (contending that the separation of “is” and “ought” is artificial); Hart, Positivism and Separation, supra note 23, at 593-98 (advocating that there is a division of the law as it is from the law as it ought to be). But see Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958) [hereinafter Fuller, Positivism and Fidelity] (arguing that Hart’s position is contradictory); LON FULLER, ANATOMY OF THE LAW, 175-86 (1968). 26. See Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457 (1897) (viewing law through the utilitarian lens of a tool of social control, experience, and raw, statist power of a sovereign over the people). Remember Holmes’ famous admonition in his seminal work, The Common Law, “The life of law has not been logic; it has been experience.” OLIVER WENDELL HOLMES, THE COMMON LAW 1 (Cambridge Univ. Press 1968) (1881). Justice Holmes’ use of the word “logic” has been interpreted to mean:
[t]he formalistic, religion-based logic that reasoned downward syllogistically from assumed truths about the universe; the proposed counter-system was “experience,” the changing “felt necessities” that reflected current social values and were altered by time and circumstances . . . [This was] merely a fatalistic acceptance that law was not so much the embodiment of reason as a manifestation of dominant beliefs at a given time.
WHITE, supra note 24 at 157. According to Holmes, law “was simply an embodiment of the ends and purposes of a society at a given point in its history.” Id. Holmes reduced law to its lowest common denominator to mean “beliefs that have triumphed.” 2 THE HOLMES-POLLOCK LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND SIR FREDERICK POLLOCK 1874-1932, at 2:36 (Mark DeWolfe Howe ed., Harv. Univ. Press 1953). Holmes further remarked, “[t]ruth [is] the majority vote of that nation that could lick all others.” Oliver Wendell Holmes, Natural Law, 32 HARV. L. REV. 40, 40 (1918). He also stressed that “when it comes to the development of a corpus juris the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way.” Letter from Oliver Wendell Holmes, Jr., to John C. H. Wu (Aug. 26, 1926), in JUSTICE OLIVER WENDELL HOLMES: HIS BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS 187 (Harry C. Shriver ed., 1936). Holmes remarked:
I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand. I believe that our personality is a cosmic ganglion, just as when certain rays meet and cross there is a white light at the meeting point, but the rays go on after the meeting as they did before, so, when certain other streams of energy cross at the meeting point, the cosmic ganglion can frame a syllogism or wag its tail.
RICHARD HERTZ, CHANCE AND SYMBOL: A STUDY IN AESTHETIC AND ETHICAL CONSISTENCY 107 (Univ. Chi. Press 1948). See WASHINGTON, INSEPARABILITY OF LAW AND MORALITY, supra note 1, at 424 n.26 (discussing the writings of Justice Holmes). John Gray’s famous

is/ought analysis of law expressed the ideas that many legal scholars and jurists held at the turn of the twentieth century stating:
The great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition of the truth that the Law of a State . . . is not an ideal, but something which actually exists . . . . It is not that which ought to be, but that which is. To fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin accomplished.
JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 94 (photo. reprint 1972) (2d ed. 1921). 27. See generally Hart, Positivism and Separation, supra note 23, at 593-629 (discussing the positive and negative aspects of legal positivism). H. L. A. Hart’s classic writing is still superior to all other attempts on this subject. I am exceedingly indebted to Hart’s pioneering work in legal philosophy and this article is heavily reliant on his tremendous contributions to the field, particularly his detailed and copious notes, many of which are referenced in this article. Regarding the writings of Jeremy Bentham on positive law and legal positivism, Hart noted that Bentham, as a personal observer of the anarchy of the French Revolution, sought in his theory of law to expound that certain laws were too morally outrageous and evil and that fighting against such laws had to be seriously considered in any legitimate system of laws. Id. at 595-600. Critical questions in separating legality from morality include: (1) If the law is not what it ought to be, if it openly combats what Fuller refers to as the principle of utility, ought we (society) obey it?; (2) Ought we to violate it?; (3) Ought we to remain neutral between the law which commands evil and morality which forbids it? See WASHINGTON, SEPARATION OF LAW AND MORALITY, supra note *, at 1-15 (discussing a natural law analysis of the exclusionary rule). 28. With the publication of John Austin’s magnum opus, The Province of Jurisprudence Determined, natural law was now systematically compared and contrasted with what he deemed the superior law—positive law, or law that is posited or delegated by human authority to human subjects, as opposed to the former legal philosophy—natural law, which views law as inseparable from God’s universal principles of nature. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED xxxix-xlii (photo. reprint 1970) (2d ed. 1861). Austin’s work is actually a series of six lectures that were first published in 1832. In the Province of Jurisprudence, when Austin writes of law, he refers only to positive law. In this work also originates the dual positive law doctrines of the command doctrine (law as a command of a sovereign to its subject that the latter must obey at fear of punishment) and superior orders (an order from the sovereign or state must be obeyed). Id. One hundred twelve years after Austin’s work on positive law was published, defense attorneys for the Nazi defendants in the Nuremberg Trials so effectively utilized Austin’s command and superior orders doctrines as to win the freedom for thirty percent of the defendants from the hangman’s noose. The Judgment at Nuremberg, 6 F.R.D. 69, 1947 Extra LEXIS 1, *432-34. 29. Franklin Delano Roosevelt was elected President of the United States for four terms (1932-45). He died in office in 1945, several months into his fourth term and shortly before Germany’s surrender. He personally appointed ten (10) Supreme Court Justices–1 Chief Justice and 9 Associate Justices. Here they are named followed by the year of appointment to the Court: Chief Justice, Harlan Stone (1941); Associate Justices, Benjamin N. Cardozo (1932), Hugo Black (1937), Stanley F. Reed (1938), Felix Frankfurter (1939), William O. Douglas (1939), James F. Byrnes (1941), Robert H. Jackson (1941) Wiley B. Rutledge (1943), Harold H. Burton (1945).

Supreme Court Justice Table, COLUMBIA ENCYCLOPEDIA (William H. Harris & Judith S. Levy eds., 6th ed. 2001). Aside from the launching of the New Deal in 1933, the single most familiar New Deal story is that of the contest between the New Deal and the Nine Old Men. According to this story, the stodgy majority of the Supreme Court, held hostage by the doctrine of laissez-faire, repeatedly shot down New Deal legislation until President Roosevelt, goaded beyond endurance and emboldened by his 1936 landslide majority, challenged the Court directly. Roosevelt proposed that because the Justices were elderly and tired and needed help, he would call for legislation permitting him to appoint new Justices to aid the incumbents with their work. His foes called the plan “Court-packing,” and a titanic struggle ensued for the soul of the American Constitution. Finally, the Justices carried out an abrupt “switch in time” that took the steam out of the push to pack the Court. The story ends, as do many great American historical dramas, by giving everybody something. Roosevelt lost his plan but gained a more cooperative Court. The Justices saved the institution of the Court, but gave in to Roosevelt and began upholding New Deal measures. And the people got both a more cooperative Court and a renewed appreciation of their beloved Constitution. See generally Barry Cushman, Rethinking the New Deal Court, 80 VA. L. REV. 201 (1994) (detailing the popular story of Roosevelt’s court-packing controversy); MARIAN C. MCKENNA, FRANKLIN ROOSEVELT AND THE GREAT CONSTITUTIONAL WAR: THE COURT-PACKING CRISIS OF 1937 (Fordham Univ. Press 2002) (discussing the Court-packing controversy in great detail). McKenna furnishes a fresh look at the controversy, providing evidence that the Court was not influenced by the re-election of Roosevelt in 1937. Id. at xxii. Also detailed is the failure of Roosevelt’s attempt to alter the makeup of the Court by way of a convincing defeat of his proposed Judicial Reorganization Bill in the Senate. Id.
Not quite. First, the myth of the unflinching laissez-faire Court is coming under fire. Professor Barry Cushman of St. Louis University Law School is completing a constitutional history of the New Deal; he rejects as overblown the traditional characterization of the Court as unflinchingly “laissez-faire” until the 1937 “switch in time” that defused the Court-packing plan. Second, many of the New Deal measures that the Court struck down deserved to be struck down—they were badly drafted, violating central constitutional principles, and the draftsmen knew or should have known what they were doing. Third, the so-called “switch in time” apparently was not a response to the Court-packing controversy; it represented two Justices’ sincere belief that the specific law before them (the National Labor Relations Act) was free of constitutional defect and thus different from the laws they previously had struck down. Cushman’s analysis of the actual doctrinal history of the Supreme Court is persuasive, but, nonetheless, the “conventional” story of the battle between creative uses of government power and laissez-faire constitutional theory shaped both American constitutional law and the American people’s understanding of how that law has developed over time. See generally THE YEARBOOK OF 1977 SUPREME COURT HISTORICAL SOCIETY (1976); ARTHUR M. SCHLESINGER, THE AGE OF FRANKLIN D. ROOSEVELT, 1933-1945 (unpublished notes, Essay X: 1933-1945) (on file with author). 30. WASHINGTON, INSEPARABILITY OF LAW AND MORALITY, supra note *, at 1-15.

31. Kellogg-Briand Pact, Aug. 27, 1928, arts. I-II, 46 Stat. 2343, 94 L.N.T.S. 57. 32. See Jackson, supra note 2, at 12 (discussing the history of the pre and post World War I treaties). See also English barrister, attorney general, Labor member of Parliament, and chief prosecutor for the United Kingdom, Sir Hartley Shawcross’ speeches during the Nuremberg Trials, 3 I.M.T. 91-145. Despite Jackson’s impressive skills as a prosecutor, Shawcross was in the opinion of most observers the most philosophically educated of the prosecution counsel who deliberated before the International Military Tribunal. See Sir Hartley Shawcross, Opening Statement, 3 I.M.T. 91-145; Closing Statement, 19 I.M.T. 433-529. For subsequent impressions of the Nuremberg Trials, see Sir Hartley Shawcross, International Law: A Statement of the British View of Its Role, 33 A.B.A. J. 31-35 (1947). For impressions of Robert H. Jackson’s contributions during the Nuremberg Trials, see MR. JUSTICE JACKSON: FOUR LECTURES IN HIS HONOR 87-136 (1969). 33. Jackson, supra note 2, at 13.

34. Id. 35. Id. at 14. See generally The Hague Convention (IV), Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631. It is evident, at least by 1907 at the ratification of the Hague Convention, that the illegality of aggressive war was one of the “generally accepted rules of international law.” Hague Convention (IV), supra art. I. Furthermore, the Hague Convention “prohibited resort to certain methods of waging war.” Id. However, it must be noted that the Hague Convention made no provisions for a legal or judicial system to try and punish people who had violated this law. See generally Hague Convention (IV), supra (neglecting to provide a workable remedy in the event of a violation); see also The Judgment at Nuremberg, 6 F.R.D. 69, 1947 Extra LEXIS 1, *113-14 (noting that the Hague Convention did not provide a specific remedy for a violation). 36. Ben Barber, U.S. Wants U.N. Tribunals Closed, WASH. TIMES, Mar. 1, 2002, at A1.
Mr. Pierre-Richard Prosper, the United States ambassador-at-large for war crime, has stated that the tribunals for Rwanda and the former Yugoslavia, which cost $100 million a year to operate, should prepare to shut down by 2008. Id.
[A]t the International Criminal Tribunal for the Former Yugoslavia, 117 have been indicted, 67 persons have been brought into custody, 26 have been convicted, 5 acquitted, 11 are currently standing trial, and 1 is awaiting the judgment of the court. At the International

Criminal Tribunal for Rwanda, 76 have been indicted, 57 have been brought into custody, 8 have been convicted, 1 acquitted, and 17 are currently on trial.
Id. 37. The newly discovered separability thesis was a revolutionary invention in the fields of legal philosophy and constitutional law and later jurisprudence and judicial decision making. Hart writes, “[I]n each of them [Austin and Bentham] the utilitarian separation of law and morals is treated as something that enables lawyers to attain a new clarity. Austin was said by one of his English successors, Amos, ‘to have delivered the law from the dead body of morality that still clung to it.’” Hart, Positivism and Separation, supra note 23, at 599-600; accord SHARTLE HERSHEY AMOS, THE SCIENCE OF LAW 4 (5th ed. 1881). See also WILLIAM MARKBY, ELEMENTS OF LAW 4-5 (5th ed. 1896) (noting that by establishing a distinction between positive law and morals Austin created the foundation for a science of law). “Positive laws, as Austin has shown, must be legally binding, and yet a law may be unjust . . . . He has admitted that law itself may be immoral, in which case it may be our moral duty to disobey it . . . . Id. For further reference on this point, see HOLLAND, JURISPRUDENCE 1-20 (1880). 38. Judgment at Nuremberg, 6 F.RD. 69, 1947 Extra LEXIS 1, *432-34. 39. PAUL JOHNSON, MODERN TIMES: THE WORLD FROM THE TWENTIES TO THE EIGHTIES 422 (1983). See also 6 F.R.D. 69, 1947 Extra LEXIS 1, *191-246 (declaring only four of the seven Nazi organizations tried to be criminal organizations). This statistic is paradoxical in light of history. How can an entire country as large and as technologically superior as Germany in the 1930s and 1940s have only four organizations of possibly tens of thousands of organizations, corporations, and businesses determined to be criminal enterprises? At least their leaders should have been brought to justice by the erudite jurists of the Nuremberg Trials as being aiders and abettors of Nazi war crimes. That this was not done by the Nuremberg Trial Tribunal is truly beyond the pale, as well as an affront to all logic, reason, justice, and truth.

40. Larry Witham, Christian Coalition Confident of Gains, WASH. TIMES, Sept. 17, 1998, at A14. 41. Adolph Hitler’s Enabling Act of March 24, 1933, effectively overruled the previous German government of the Weimar Republic including the Weimar Constitution. The Act gave Hitler sweeping and absolute powers to change statutory and constitutional law by decree, which thus gave legal validity to his termination of the separation of powers doctrine previously held under the Weimar Republic. Gesetz zur Behebung der not von Volk und Reich [Law for Eliminating the Distress of People and Reich]. 24. Mar. 1933, RGBl. I, 141. Article 1 provides in part: “Apart from the procedure provided in the Reich Constitution, laws of the Reich can also be decreed by the Reich Government”; and Article 2 provides in part, “Laws decreed by the Reich Government may depart from the Reich Constitution as long as they do not have as their object the institutions of the Reich Parliament [Reichstag] and the Reich Council [Reichsrat] as such.” See also 3 N.M.T. 252-84 (discussing the legality of laws of the Reich government). 42. See WILLIAM L. SHIRER, THE RISE AND FALL OF THE THIRD REICH: A HISTORY OF NAZI GERMANY 211, 304, 306, 309, 332-33, 357-63, 365-68 (1960) (discussing the mind set of the German people and their receptiveness to the Nazi government). 43. Id. at 32, 34, 41, 57-60, 152-53, 186-87. 44. Id. at 659-65. 45. Id. at 870. 46. JOHANN WOLFGANG VON GOETHE, FAUST (David Luke, ed. & trans., Oxford World Classic 1998) (1808). See generally JOHNSON, supra note 3; SHIRER, supra note 42, at 1114 (describing the fall of the Third Reich and Hitler’s fall from power).

47. See James Popple, The Right to Protection from Retroactive Criminal Law, 13 CRIM. L. J. 251, 251-62 (1989) (noting that a total of 177 Germans and Austrians were indicted). 48. The Judgment at Nuremberg, 6 F.R.D. 69, 1947 Extra LEXIS 1, *432-34. See also Popple, supra note 47, at 256. Popple states:
Thirteen separate trials of war criminals were held in Nuremberg between 1945 and 1947. These trials were presided over by judges from all four major victorious allied powers: America, Britain, France and the Soviet Union. A total of 177 Germans and Austrians were indicted. All but 35 were found guilty: 25 were executed, 20 were sentenced to life imprisonment and 97 were sentenced to shorter prison terms.
Id. See also Indictment, 1 I.M.T. 27-92 (providing information regarding the twenty-four Nazi leaders who were charged on two or more of the four counts which were under the U.N. Charter and within the jurisdiction of the U.N. Tribunal).

49. See, e.g., Charles Wyzanski, Jr., Nuremberg: A Fair Trial?, THE ATLANTIC MONTHLY, 66-70 (April 1946), reprinted in ADAMS, supra note 2, at 14. 50. Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, T.S. No. 796, 94 L.N.T.S. 57 [hereinafter Kellogg-Briand Pact]. 51. Jackson, supra note 2, at 10-11. 52. For an excellent collection of books and articles on the Nuremberg Trials, see NUREMBERG TRIALS: THE READER’S COMPANION TO AMERICAN HISTORY (Eric Foner and John A. Garraty eds., 1994).

53. Melvin Sickler and Myron Fagan, Thirst for Justice: A Satanic Plot for a One World Government, at http://www.prolognet.qc.ca/clyde/illumin.htm (last visited on Oct. 7, 2003). 54. Genesis 11:4 (King James) (“And they said, Go to, let us build us a city and a tower, whose top may reach unto heaven; and let us make us a name, lest we be scattered abroad upon the face of the whole earth.”). This rebellion was in direct defiance of God’s command, “And God blessed Noah and his sons, and said unto them, be fruitful, and multiply, and replenish the earth.” Genesis 9:1 (King James). 55. The International Court of Justice is the judicial arm of the United Nations and regularly reports to the General Assembly. See generally http://www.ICJ-CIJ.org (discussing among other things, the role of the court in the United Nations) (last visited Oct. 19, 2003). 56. The World Bank is the financial arm of the United Nations with profiles that cover the 208 countries (184 World Bank members and twenty-four other economies with populations of more than 30,000) and eighteen country groups reported on in the World Development Indicators book. See generally http://www.worldbank.org (providing information on the World Bank) (last visited Oct. 19, 2003). 57. Regarding the foundational position natural law played as the controlling philosophy of American Constitutional law as well as all of its law related institutions from the rulings of local magistrates to the leading opinion handed down by the United States Supreme Court, Professor Burnham wrote: “The scholars have traced the ideas of the [Founding] Fathers back not only to Locke, Montesquieu, but Aristotle and Cicero and Plutarch, Hobbes, Burlamaqui, Milton, Hooker, Bolingbroke, Blackstone, Burke, Shaftesbury and a score of collateral branches.” JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 24 (1965). “The Fathers were the masters, not the victims, of these inherited ideas, and sometimes it is the rhetoric more than the

ideas that is taken over.” Id. Rousas Rushdoony noted that John Witherspoon, a Presbyterian minister, was educated at Edinburgh University. ROUSAS JOHN RUSHDOONY, THIS INDEPENDENT REPUBLIC: STUDIES IN THE NATURE AND MEANING OF AMERICAN HISTORY 3 (1964). Witherspoon later became the first president of Princeton University, bringing the principles of Rutherford’s Lex Rex (1644) into the writing of the Constitution. Witherspoon was the only clergyman to sign the Declaration of Independence. He served two terms on the Continental Congress and was a key member on several influential committees of the first Congress. His students included a president (James Madison), a vice president (Aaron Burr), ten cabinet officers, twenty-one senators, thirty-nine congressmen, twelve governors, as well as other public figures. Id.; BARTON, THE MYTH OF SEPARATION, supra note 21, at 92-93.
Witherspoon’s influence on James Madison was great. He was president of Princeton when Madison attended. Some of the requirements at the time included that every student shall attend worship each morning and evening, every student shall attend public worship on Sabbath, and every student shall complete various religious assignments. BARTON, ORIGINAL INTENT, supra note *, at 83; see also BARTON, THE MYTH OF SEPARATION, supra note 21, at 92-95, 117-18 (discussing Witherspoon’s views on religion and government). 58. In contemporary jurisprudence, legal positivism is generally divided into five categories:
(1) the contention that laws are commands of human beings,
(2) the contention that there is no necessary connection between law and morals or law as it is and ought to be,
(3) the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, “functions,” or otherwise,
(4) the contention that a legal system is a “closed logical system” in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards, and
(5) the contention that moral judgments cannot be established or defended, as statements of facts can, by rational argument, evidence, or proof (“noncongnitivism” in ethics).
HART, CONCEPT OF LAW, supra note 15, at 601 n.25 (citations omitted) (citing JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW, 594-626 (1909)). Hart noted that “Bentham and Austin held the views described in (1), (2), and (3) but not those in (4) and (5). Opinion (4) is often ascribed to analytical jurists, but I know of no ‘analyst’ who held this view.” Id. (citations omitted). 59. For those interested in learning more about the Nuremberg Trials, see supra note 5 (discussing the International Military Tribunal at Nuremberg). See also ADAMS, supra note 2 (consisting of a collection of writings and commentary on the Nuremberg Trials); Stanley Paulson, Classical Legal Positivism at Nuremberg, in ADAMS, supra note 2, at 45.

60. Hermann Jahrreiss, Professor of law at Cologne and associate defense counsel for defendant Jodl, skillfully and with some success utilized the “act of state” defense and the doctrine of absolute sovereignty. Both legal philosophies came directly out of John Austin’s Providence. Jahrreiss presented a lengthy apologetic on jurisprudence considerations of the trial. His discourses epitomize the most extensive attempt by defense counsel to specify a philosophical foundation for the defense’s case. 17 I.M.T. 458-94. For an interesting and engaging commentary by Jahrreiss reflecting on his Nuremberg Trial experience, see his testimony before the United States Military Tribunal at Nuremberg as an expert defense witness on German constitutional law. 3 I.M.T. 252-84. See also 2 HERMANN JAHRREISS, DIE FORTENTWICKLUNG DES VOLKERRECHTS, JAHRBUCH FUR INTERNATIONALES UND AUSLANDISCHES OFFENTLICHES RECHT 654-66 (1949), reprinted in HERMANN JAHRREISS, MENSCH UND STAAT 233-53 (Cologne ed., 1957). See generally JEAN BODIN, SIX BOOKS OF THE COMMONWEALTH 25, 28 (M. J. Tooley trans., Oxford ed. 1955) (1576) (providing a comprehensive starting point for the study of legal history). The previous Western conception of law as subsequent and superior to man was now beginning to be replaced with law as a mere tool or servant of the state. Id. However, in Bodin’s work, The Prince, though freed from the law of man and a law unto himself, medieval understandings of the law still constrained him to the universal natural law precepts as well as to certain common ecumenical precepts to which all mankind must adhere. Nonetheless, the break with the medieval world of “the Law of Nature and of Nature’s God” as Jefferson codified two hundred years later as natural law philosophy in America’s Declaration of Independence, was in the sixteenth century already being rent in two like the Temple veil of the Bible when Christ died on the cross. Matthew 27:51 (King James). See generally THE DECLARATION OF INDEPENDENCE (U.S. 1776) (exposing a natural law philosophy). 61. AUSTIN, supra note 29, at 13-14. Austin’s superior sovereign analysis consists of three components: (1) the sovereign’s intention that the subject act or not act in particular situations; (2) the sovereign’s expression of such intention to the subject; (3) the sovereign’s power to enact or impose obedience to his commands by the subject. Id. To the substantive question of positive law—who has the right in a society to be sovereign?—James Bryce makes the following

comments: “The person or body to whom in the last resort the law attributes this right is the legally supreme power; or Sovereign, in the State.” 2 BRYCE, supra note 15, at 505. 62. G. M. GILBERT, NUREMBERG DIARY (photo. reprint 1995) (1947).
Ribbentrop was arguing with Hess but getting nowhere, since Hess has no recollection of the world events recounted in the Indictment. Ribbentrop then remarked to me [G.M. Gilbert] “Why all this fuss about breaking treaties? Did you ever read about the history of the British Empire? Why, it’s full of broken treaties, oppression of minorities, mass murder, aggressive wars, and everything.”
Id. See generally JOSEPH E. PERSICO, NUREMBERG: INFAMY ON TRIAL (1994) (providing a detailed history of the Nuremberg trials); MICHAEL R. MARRUS, THE NUREMBERG WAR CRIMES TRIAL 1945-46: A DOCUMENTARY HISTORY (The Bedford Series in History and Culture (1997)) (same); TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR (1992) (same). 63. GILBERT, supra note 62, at 185-216. Note in particular Hermann Goering’s defense which made a virtual mockery of the Court. Id. 64. The pivotal question is how did America change from a nation founded “under God” whose national motto is “In God we Trust,” to a nation that has lost sight of the foundational structure which undergirds its laws? And how did the Supreme Court move from a judicial body that was supposed to interpret the Constitution to one that creates a Constitution by legislating from the bench? The demise of America’s legal foundations occurs when society rejects laws that are based on solid, irrevocable, moral, universal, absolute values, and embraces laws based on an arbitrary system of relativism, situation ethics, materialism, individualism, hedonism, paganism, or any secularist ideology. This secularization of law has influenced all branches of knowledge–law, medicine, education, science, the arts, and mass media. Harold Berman, a law professor at Harvard has remarked: “One major symptom of this threatened [nervous] breakdown is the massive loss of confidence in the law—not only on the part of law-consumers but also on the part of law-makers and law distributors.” HAROLD BERMAN, THE INTERACTION OF LAW AND RELIGION 21 (1974). “[T]here is an enormous chasm between what incoming students think the law is–an organized set of facts–and what it really is—uncertainties.” Sandy Goldsmith & Barbara Kate Repa, Are You Using Study Aids as a Crutch? 16 STUDENT LAW., Sept. 1987, at 32. See also BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW 49 (1924) (discussing the secularization of the law).

65. For an example of the perverse, myopic, and craven tone of the defenses of Nazi defendants Hess, Ribbentrop and Keitel, see GILBERT, supra note 62, at 217-54. 66. See Treaty of London, supra note 5 (establishing the International Military Tribunal at Nuremberg, the first of its kind). 67. Treaty of London, supra note 5, art. 6. Stanley Paulson contends that the rejection of the primary defenses of the Nuremberg Trials: (1) Act of State; (2) Superior orders; and, (3) Ex Post Facto, could not “be justified on either legal or philosophical grounds” but was derisively referred by him as “Allied policy.” Paulson, supra note 59, at 45. However, had the United Nations Tribunal enacted its legal authority under the universal precepts of natural law, no such questions of justification over the legality of the Tribunal could have been logically sustained because in a civilized society murder is murder whether a statute makes it illegal. Lawyers and jurists, however, have been aware of the underlying philosophical disputes that the war between natural law and positive law has presented in the Nuremberg Trials. See, e.g., A. L. Goodhart, The Legality of the Nuremberg Trials, 58 JURID. REV. 1, 1-19 (1946) (discussing the legitimacy of the Nuremberg trials); A. L. Goodhart, Questions and Answers Concerning the Nuremberg Trials, 1 INT’L L. Q. 525, 525-31 (1947) (same); LORD WRIGHT, NATURAL LAW AND INTERNATIONAL

LAW: INTERPRETATIONS OF MODERN LEGAL PHILOSOPHIES 794-807 (Paul Sayre ed., 1947); Lord Wright, War Crimes Under International Law, 62 L. Q. REV. 40, 40-52 (1946); Quincy Wright, Legal Positivism and the Nuremberg Judgment, 42 AM J. INT’L L. 405, 405-14 (1948) (stating the differences between positive law and natural law and the effects on the legitimacy of the Nuremberg trials). It was generally left to other conservative or conservative-leaning law academics to outline a defense of the legitimacy of the Nuremberg Trials in terms of “Justice and its handmaid, Natural Law,” as Wright puts it. The best and most logically and reasoned exposition of the Nuremberg Trials is still the classic work by Hart. See Hart, Positivism and Separation, supra note 23, at 615-21 (explaining the difficult legal issue of whether to declare void every law passed during the Nazi regime); Fuller, Positivism and Fidelity, supra note 25, at 648-61 (replying to the comments of Professor Hart and defending positive law). See generally GEORGE LEAMAN, HEIDEGGER IM KONTEXT: GESAMTÜBERBLICK ZUM NS-ENGAGEMENT DER UNIVERSITÄTSPHILOSOPHEN [HEIDEGGER IN CONTEXT: OVERVIEW OF THE NAZI INVOLVEMENT OF UNIVERSITY PROFESSORS] 25-27, 109-33 (1993). Posner rightly notes that “[p]rofessors were notable by their absence from the cells of resistance to Hitler that developed during his rule.” Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1683 n.88 (1998) (citing ALICE GALLIN, MIDWIVES TO NAZISM: UNIVERSITY PROFESSORS IN WEIMAR GERMANY 1925-1933, at 4-5, 100-05 (1986)). 68. GILBERT, supra note 62, at 36-39 (discussing the Opening Address by Robert Jackson, Chief Prosecutor for the United States at Nuremberg). 69. Treaty of London, supra note 5, §§ II art. 8, VI art. 27. 70. See Treaty of London, supra note 5, § II arts. 9 &10 (granting the tribunal authority to declare a group or organization criminal). 71. See Jackson, supra note 2, at 7-13. For the full text of Justice Jackson’s Opening Address at Nuremberg, see 2 I.M.T. 98-155. President Truman personally asked Justice Jackson to suspend his tenure on the Supreme Court to represent the United States at London and to function as chief prosecutor of the United States and argue before the International Military Tribunal. See Report from Robert H. Jackson to the President, 12 Dept. State B. 1071-78 (1945) (providing an overview of the prosecution’s arguments). For Jackson’s Opening Address and arguments at trial, see ROBERT H. JACKSON, THE CASE AGAINST THE NAZI WAR CRIMINALS (1946); for his closing statement, see 19 I.M.T. 397-432. Jackson later remarked about his experiences at the Nuremberg Trials in Robert H. Jackson, Nuremberg in Retrospect, 27 CAN. B. REV. 761, 761-81 (1949),

reprinted in 35 A.B.A. J. 813, 813-16, 881-87 (1949). 72. Wyzanski, supra note 49, at 14-20. Judge Charles E. Wyzanski, Jr. voiced concerns about the hazards of attempting to administer international justice in a vacuum, without the benefit of guiding precedent, especially given that the judiciary panel was to be composed not of disinterested legal experts, but of political leaders from the very countries against which the defendants were said to have committed their crimes. Id. at 17. Wyzanski warned that if the panel succumbed to (justifiable) feelings of outrage, and indulged an urge to punish without granting the defendants a fair trial, it would establish a dangerous precedent for war crimes retribution. Id. Seven months later, however, after the trial had run its course, Wyzanski explained that the exemplary manner in which the trial had been conducted dispelled his skepticism about the feasibility of forging an international legal system. Charles E. Wyzanski, Jr., Nuremberg in Retrospect, ATLANTIC MONTHLY, Dec. 1946, at 56, available at http://www.theatlantic.com/unbound/flashbks/nurember/wyprec.htm. He wrote, “[T]he Nuremberg proceedings were a model of forensic fairness . . . . But the outstanding accomplishment of the trial . . . is that it has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement. Id. at 56-59. 73. Wyzanski, supra note 49, at 15-18. 74. Id. 75. Id. Wyzanski states:
The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.
Id. at 15.

76. See generally FED. R. EVID. (proscribing the requirements and procedure for the admissibility of evidence at trials). 77. See generally David Nelken, Beyond Compare? Critizing “The American Way of Law,” 28 LAW & SOC. INQUIRY 799 (2003). 78. See, e.g., William B. Ewald, What’s so Special About American Law?, 26 OKLA. CITY U. L. REV. 1083 (2001). 79. See Oscar G. Chase, American “Exceptionalism” and Comparative Procedure, 50 AMER. J. COMP. L. 277, 283-85 (2002) (discussing “adversarial” v. “inquisitional” systems). 80. See generally 1-22 I.M.T. (The transcript contains numerous instances where the German council objected to the legal framework of the trial.). 81. The primary Nazi defense of superior sovereign and that they were following German law is belied by the fact that German law prohibited superior orders as an unmitigated defense. Militarstrafgesetzbuch v. 10.10.1940 (RGBl. I S.1347, 1351). Section 47 prohibited the absolute defense to a person who “went beyond the order as given” or intended “that the superior’s order referred to an act aimed at civil or military felony or misdemeanor.” Id. Although defendant Jodl claimed that he did not recall any charges under section 47 “in his 30 years of service,” 19 I.M.T. 43, section 47 had been used successfully prior to the Nuremberg Trials to secure a conviction in the famous Llandovery Castle case—a 1921 German prosecution originating from the First World War—where two German submarine officers were alleged to have shot at British lifeboats in violation of the laws of war. See German War Trials: Judgment in the Case of Lieutenants Dithmar and Boldt, 16 AM. J. INT’L L. 708, 721-22 (1922) (printing a German court decision where a soldier was prevented from raising the defense of “superior orders”).

82. Wyzanski, supra note 49, at 15-16 (distinguishing between the acts of the Nazi defendants on foreign soil and those committed on German soil). Apparently, Wyzanski finds the tribunal lacks the authority under any law to prosecute the defendants for murdering their own citizens. Id. He completely rejects the theory that authority can be granted under natural law. Id. 83. Wyzanski, supra note 49, at 18-19. Shawcross’ remarks regarding the ancient legal maxim, nullum crimen are instructive.
There is all the difference between saying to a man, “You will now be punished for what was not a crime at all at the time you committed it,” and in saying to him, “You will now pay the penalty for conduct which was contrary to law and a crime when you executed it, although, owing to the imperfection of the international machinery, there was at that time no court competent to pronounce judgment against you.” It is that latter course which we adopt, and if that be retroactivity, we proclaim it to be most fully consistent with that higher justice which, in the practice of civilized states, has set a definite limit to the retroactive operation of laws.
3 I.M.T. 106. Accord 2 I.M.T. 144 (Jackson arguing before the tribunal); Judgment at Nuremberg, 6 F.R.D. 69; Judgment, The Hostage Case (United States v. Wihelm List) 11 N.M.T. 1239. Shawcross further remarked, “The only innovation which this Charter has introduced is to provided machinery, long overdue, to carry out the existing law, and there is no substance in the complaint that the Charter is a piece of post factum legislation . . . .” 19 I.M.T. 464. Furthermore, Shawcross maintained that “the existence of law has never been dependent on the existence of a correlated sanction external to the law itself.” Id. at 463. 84. U.S. CONST. art. I, § 9. (“No Bill of Attainder or ex post facto Law shall be passed.”). One of the most coherent and sublime expositions of the principle of legality, the prohibition of ex post facto law and legal positivism in the Nuremberg Trials is by Harvard University Professor of Philosophy Lon Fuller. LON FULLER, THE MORALITY OF LAW 41-44, 51-62 (1964). Compare Fuller, Positivism and Fidelity, supra note 25, at 630-72 (discussing his thesis that Nazi law lacked the vital element of all law—fidelity to law, a deficiency which precluded it from being considered actual law that one was bound to obey), with AUSTIN, supra note 28, at 84 (“[T]he existence of law is one thing; its merit or demerit is another. Whether it be or not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation or disapprobation.”); See also JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW, ch. 2 (2d ed. 1960) (explaining the principles of legality); JOHN RAWLS, A THEORY OF JUSTICE 238 (1971) (providing a general theory of distributive justice and the social contract).

85. Wyzanski, supra note 49, at 15. 86. Id. 87. Id. at 17 (“To some the count may appear as nothing more than the ancient rule that the vanquished are at the mercy of the victor.”). 88. See id. (“There is no convention or treaty which places obligations explicitly upon an individual not to aid in waging an aggressive war.”).
For those who were not chargeable with ordinary crimes but only with political crimes such as planning an aggressive war, would it not have been better to proceed by an executive determination–that is, a proscription directed at certain named individuals? The form of the determination need not have been absolute on its face. It might have been a summary order reciting the offense and allowing the named persons to show cause why they should not be punished, thus giving them a chance to show any mistake of identification or gross mistake of fact.
Id. at 19.

89. Wyzanski, supra note 49, at 14. 90. Jackson, supra note 2, at 7-8. 91. Wyzanski, supra note 49, at 14. 92. See id. at 15 (expressing doubt as to whether the defendants could be tried at the tribunal on the charges that encompassed crimes against German citizens on German soil).

93. Article 7 of the Treaty of London expressly rejected the Nazi defense of “act of state,” holding that “the official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment.” Treaty of London, supra note 5, § II, art. 7. See also Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31 CAL. L. REV. 530, 533 (1943) (defining acts of state as “acts performed by individuals in their capacity as organs of the State and therefore acts imputed to the State.”). An interesting historical fact is that Kelsen’s paper was cited by associate defense counsel Hermann Jahrreiss as substantive authority for the idea that “in questions of breach of the peace, the liability of the individuals to punishment does not exist according to general international law at present valid . . . .” 17 I.M.T. 477. Kelsen seriously disagreed with Jahrreiss’ defense. Anticipating the prosecution of Axis war criminals, Kelsen maintained that the characterization of rules, so as to affirm specific criminal liability retroactively, would be supported on a moral foundation. HANS KELSEN, PEACE THROUGH LAW 87-88 (1944). 94. Wyzanski, supra note 49, at 16. Ironically, until 1944, both the British, in their British Manual of the Laws and Usages of War on Land, and the Americans, in their U.S. Rules of Land Warfare, granted immunity from prosecution to any military solider or officer for any criminal act committed during the commission of his military duties. THE BRITISH MINISTRY OF DEFENSE, MANUAL OF MILITARY LAW pt. I, ¶ 23, pt. III, ¶ 627 (12th ed. 1972) [hereinafter MANUAL OF MILITARY LAW]; U.S. DEPT. OF THE ARMY, FIELD MANUAL: THE LAW OF LAND WARFARE (FM 27-10) ¶ 509(1) (1956) [hereinafter FIELD MANUAL]. While both allowed the defense, the U.S. Military law also provided that the “[i]ndividuals of the armed forces will not be punished for these offenses [i.e., for violations of the laws of war] in case they are committed under the orders or sanction of their government or commanders.” FIELD MANUAL, supra at Oct. 1944 ed., para. 347. In 1944, both the British and the U.S. manuals abandoned the defense, the latter providing that “Individuals and organizations who violate the accepted laws and customs of war . . . pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment. The person giving such orders may also be punished.” Para. 345.1 (change of 15 Nov. 1944). MANUAL OF MILITARY LAW, supra, pt. I, ¶ 23, pt. III, ¶ 627; FIELD MANUAL, supra ¶ 509(1). These changes are current military practice. 95. See Wyzanski, supra note 49, at 15-16 (basing his criticism of the tribunal on natural law). 96. See id. at 19 (commenting that Nuremberg was high politics masquerading as law).

97. Id. at 15. 98. This is because positive law must be “posited,” positioned or instituted by man and enforced by power or a believable threat of punishment. 99. Wyzanski, supra note 49. 100. Id. at 15. Wyzanski is morally uncomfortable with his argument from the start, constantly attempting to distance himself from the actions of the Nazis. Id. 101. See Wyzanski, supra note 49, at 14-16. “Thus in Articles 46 and 47 of the Hague Convention of 1907, the United States and many other countries accepted the rules that in an occupied territory of a hostile state ‘family honour and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected.’” Id. at 14 (emphasis added).

102. DECLARATION OF INDEPENDENCE ¶ 1 (U.S. 1776).
When in the Course of human events, it becomes necessary for one people to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the separation (from England and King George III).
Id. (emphasis added). 103. GILBERT, supra note 62, at 37-40. 104. See, e.g., ELINOR LANGER, A HUNDRED LITTLE HITLERS: THE DEATH OF A BLACK MAN, THE TRIAL OF A WHITE RACIST, AND THE RISE OF THE NEO-NAZI MOVEMENT IN AMERICAN (2003). 105. See William Drozdiak, Two German Officers Punished for Neo-Nazi’s Speech to Military Academy, WASH. POST, Dec. 9, 1997, at A26 (reporting that two senior officers were reprimanded for allowing a convicted neo-Nazi to address soldiers at an elite military academy).

106. See William Drozdiak, Haider Plays on Fears of Foreigners, Contradictions, Denials Mark Austrian’s History, WASH. POST, Feb. 6, 2000, at A1 (providing a biography of Haider’s past and discussing his political views). 107. William Drozdiak, Haider Baffled by Western Protests: Austrian Far-Right Leader Predicts Acceptance, Reaffirms some Disputed Stands, WASH. POST, Feb. 10, 2000, at A17. Haider has made comments that have sparked protests around the world and caused some countries to break diplomatic ties with Austria. Id. Among these comments, he has “praise[d] [] Nazi Germany’s orderly employment policies” and he has characterized veterans of the Waffen SS, a branch of the feared Nazi organization, as “decent men of character.” Id. 108. Wyzanski, supra note 49, at 16. 109. Ecclesiastes 1:9 (King James). 110. Genesis 1:3 (King James). 111. Genesis: 4:8. (King James) “And now art thou cursed from the earth, which hath opened her mouth to receive thy brother’s blood from thy hand.” Id. at 4:11. 112. See Exodus 20 (chronicling the giving of the Decalogue by God to Moses).

113. GILBERT, supra note 62, at 36-39 (citing chief prosecutor Robert Jackson’s opening remarks at the Nuremberg Trials). 114. Id. 115. GILBERT, supra note 62, at 36-39. 116. See Jackson, supra note 2, at 7-8 (stating that the tribunal is justified under current international law). 117. Id. (emphasis added). 118. Id. at 9 (emphasis added). 119. Id. at 8 (emphasis added).

120. JOHNSON, supra note 39, at 419. 121. Jackson, supra note 2, at 7. 122. Wyzanski, supra note 49, 14-16.

123. This information is taken from Justice Jackson’s statements to the Tribunal at the Nuremberg Trials. For access to the transcripts of the Nuremberg Trial, see The Avalon Project at http://www.yale.edu/lawweb/Avalon/imt/imt.htm. 124. Jackson, supra note 2, at 10 (emphasis added). The Tribunal stated, “resort to a war of aggression is not merely illegal, but is criminal”; furthermore that the Nazi leader’s complicity in the “planning and preparation” of these war crimes was clearly evident and that “inhumane acts charged in the Indictment, and committed after the beginning of the war, [that] did not constitute War Crimes . . . were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes against Humanity.” Judgment at Nuremberg, 6 F.R.D. 69, 1947 Extra LEXIS 1, *111. 125. Jackson, supra note 2, at 12. 126. Ironically, liberals did not invent judicial activism but perfected it. Legislating from the bench began in earnest with the infamous Lochner case of 1905 as the ongoing war between President Theodore Roosevelt’s attacks against corporate trusts (i.e., monopolies) were shamefully

given the color of law by a then conservative majority on the Court by reading into the Constitution their own laissez-faire ideals. See, e.g., Lochner v. New York, 198 U.S. 45 (1905). Writing for the Court, Justice Peckham held that there were no substantive arguments for precluding the right of freedom of contract by regulating the hours of labor. This opinion is an illegitimate example of conservative judicial legislation from the bench; however, there appears to be little in this opinion that is unthinking or mechanical. For a different opinion, see, Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 615-16 (1908). See also WASHINGTON, INSEPARABILITY OF LAW AND MORALITY, supra note *, at 445, 455 n.19. 127. Id. at 7. 128. See Capitalism and the Holocaust: How the Swiss banks aided the Nazis, THE INT’L WORKERS B., June 16, 1997, at 3, at www.wsws.org/public_html/iwb6-16/gold.htm (last visited Oct. 31, 2003). The writer commented in part:
Despite Hitler’s boasts about autarky, the German economy was dependent throughout World War II on foreign imports: 23 of the 34 most important raw materials for conducting the war had to be imported. For this trade Germany required internationally recognized currency or gold-much of it “laundered” gold seized from European Jewry or from the government reserves of countries conquered by the Nazis.
The Swedish National Bank also profited from the Nazi’s stolen gold. From 1939 to March 1944 Sweden bought 34,564 kilograms of gold from the Reichsbank. In return, Sweden supplied Germany with a multitude of materials, including 35 million tons of iron ore. Gold was also exchanged for Swedish currency, which could be traded internationally. At America’s insistence, following the end of the war Sweden handed back approximately 13,000 kilograms of gold to the national banks of Belgium and Holland, whose assets had been seized by the Nazis.
Id. There are literally hundreds of articles on this topic exposing the sophistic “neutrality” of Switzerland and their obviously corrupt banking system during War World II. 129. Jackson, supra note 2, at 8.

135. See generally ARCHER JONES, THE ART OF WAR IN THE WESTERN WORLD (1987). 136. Jackson, supra note 2, at 13. 137. Specifically, common law tradition going back to the great International law jurists like Hugo Grotius and Samuel de Pufendorf. On this subject Barton wrote:
Hugo Grotius (1583-1645), a Dutch lawyer, theologian, and statesman, authored Concerning the Law of War and Peace (1625)—the first definitive text on international law . . . . Grotius’ overall philosophy on law and civil government was clear; he argued that, “What God has shown to be his will that is law.”
. . . .
Samuel de Puffendorf (1632-1694), a high political figure and Professor of the Law and Nature at universities both in Sweden and Germany . . . . Puffendorf also believed that civil societies and government could not successfully exist apart from God and His principles.
BARTON, supra note *, at 223. 138. For example, in the then recent international blunders of the Treaty of Versailles (1919) after World War I, the Allies left Germany’s military virtually intact and turned a blind eye when Hitler became the only European power to rebuild his military forces, while America and other world leaders allowed their forces to languish.

139. Kellogg-Briand Pact, supra note 31, art. II. 140. Saddam Hussein played a deceitful shell game with the United States and the U.N. as they searched the Iraqi desert for over twelve years in a futile effort to destroy his weapons of mass destruction. Since 1998, Hussein had refused to allow weapons inspectors back into his country and instead argued, quite persuasively, for the UN to lift sanctions against his country even as evidence mounted from a number of political, military and former scientists who worked on Iraq’s weapons programs that Saddam was within a year from having his own nuclear, chemical, and biological weapons of mass destruction. 141. One of legal realism’s most illogical and entrenched views held by Holmes, Pound, Posner, Tribe, and other left-leaning jurists is that general ideals do not decide hard cases and that rules should not (or cannot) control court decisions. Professor Llewellyn, to a degree, breaks ranks with these extreme legal realist positions. However, Llewellyn’s rather arrogant and cavalier tone of his reasoning is not much better than his fellow academics. In the first edition of The Bramble Bush, Llewellyn assigned himself unreservedly to the ideas that “what these officials do about disputes is, to my mind, the law itself” and “rules . . . are important so far as they help you . . . predict what judges will do . . . . That is all their importance, except as pretty playthings.” KARL N. LLEWELLYN, THE BRAMBLE BUSH 3, 5 (1st ed. 1930) (emphasis added). In the second edition he said that these were “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth . . . . [O]ne office of law is to control officials in some part, and to guide them even . . . where no thoroughgoing control is possible, or is desired . . . . [T]he words fail to take proper account . . . of the office of the institution of law as an instrument of conscious shaping . . . .” Id. at 9. There are few examples in the history of law where the writer so clearly and unmistakably describes judicial activism or legislating from the bench.

142. WASHINGTON, THE INSEPARABILITY OF LAW AND MORALITY, supra note *, at 325-26.
September 11, 2001 . . . [a] date, which will live in infamy, should forever settle the issue, yea furthermore place it beyond the realm of rational argument, to lightly consider the damnable consequences of a worldview, a philosophy, a system of laws, a people, a society, a nation, that seeks to separate the inseparable—law from morality, church from state, God from the public marketplace of ideas, lest they follow the well-beaten path of all the governments of men—ineffective public policy, societal instability, socialism (Democracy), totalitarianism, anarchy, nihilism, and death.

Id. Philosopher, George Santayana’s famous maxim is even more prophetic in light of the naive and failed proclamations of the United Nations and its first experiment with an international world court called the Nuremberg Trials: “If we do not learn from history, we are doomed to repeat it.” Not following Santayana’s wise counsel has been the idiots’ refrain of ignominy throughout world civilization as one nation rises and another nation falls only to be succeeded by yet another “superpower.” Each nation oblivious of the circumstances that preceded it, like an idiot savant walking in the middle of traffic, each rise of one nation because of some juxtaposition of either a separation or a perversion of law and morality, leads inexorably to societal implosion, moral decay, and genocide. America, in many respects I am sad to say, is there.

Tags: Ellis Washington, featured, NUREMBERG TRIALS, RULE OF LAW, Society, tyranny, World War Two

Category: Selected Scholarly Works