Studies in liberal moral hypocrisy: the case of Lex van der Lubbe and Nuremberg

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Bob Dylan Roof

Moral indignation is a base emotion that should not be indulged by individuals who understand the fallable nature of humans and their invariably inconsistent ethical systems. However, when one is repeatedly bombarded by the sanctimonious posturing of otherwise benighted individuals, it can be useful (and entertaining) to highlight glaring instances of moral hypocrisy perpetrated by their moral heroes. Carl Schmitt's legal memorandum on the legal principle nullum crimen, nulla poena sine lege , prepared on behalf of the industrialist Friedrich Flick for his defense at Nuremberg, is a tactful illustration of liberal moral (and legal) hypocrisy.

In March 1933, just a month after the Reichstag fire, the National Socialist government in Germany promulgated the Lex van der Lubbe , which increased the punishment for certain crimes from life in prison to death and provided retroactive capital punishment for offenders who had already been convicted.

There was immediate outrage in America and England, with prominent jurists declaring that Germany had violated the sacred western prohibition against the enactment of retroactive laws. The outrage and public pressure were so intense that Hitler changed van der Lubbe's sentence. Contemporary scholars nevertheless regard the passage of this law as one of the terminal events in German politics, propelling Germany toward absolute and arbitrary dictatorship.

Fast forward 12 years, Germany is in ruins, and the Nuremberg trials are getting underway.

U.S. Supreme Court Justice Robert Jackson was a moral crusader (famous for influencing Justice Warren to highlight the scientific and artistic achievements of African Americans in the Brown v. Board decision) who took a leave of absence from SCOTUS to zealously pursue victor's justice at nuremberg as chief prosecutor. While Jackson is now infamous for losing his temper and being bested by Goering on cross-examination, Schmitt's memo suggests that he spearheaded yet another embarassing legal enterprise at Nuremberg.

Jackson vigorously advocated charging Nuremberg defendants with the crime of war of aggression. That is, he advocated charging them with the crime of, in some sense, aiding in an aggressive war against other states. Jackson succeeded in his crusade, and several defendants were imprisoned for aiding in a war of aggression by planning or financing it directly or indirectly in Germany (Flick was ultimately not charged with conspiracy to commit aggressive war.)

Yet as Schmitt's memo painstakingly demonstrates, it was impossible to claim under either classical European international law or post-League international law that an ordinary European citizen could be held personally liable for a war of aggression. Indeed, even attempts to hold Kaiser Wilhelm liable for WW1, which America opposed from the beginning, were eventually abandoned by the French. Thus, as a result of the European tradition of framing war as a dual between equals without regard to either side's claim to justice, no individual European citizen would ever have contemplated that participating in industry within an aggressor nation would have exposed them to decades in prison. In prosecuting defendants for this crime, the Nuremberg court had therefore violated one of the sacred principles of legality - a principle the violation of which liberals had once bellowed about when Germany enacted the Lex van der Lubbe.

The Chakravartin Would you say this principle is one of Roman Civil Law or is it part of International Law as well, in the Western/European framework?
Bob Dylan Roof
I think the principle is nearly universal in western history. Its existence strongly suggests that there is an intrinsic moral component to law as such, because any law that permitted ex post facto laws would create paradoxical situations averse to the implicit purpose of written law.