PLSC 118: The Moral Foundations of Politics

Lecture?02. Introductory Lecture

https://oyc.yale.edu/political-science/plsc-118/lecture-2

Who was Adolf Eichmann??He was the expert on Jewish immigration and relocation. In the beginning he was sent to talk to the Jewish elder council and try to negotiate the moving of thousands of Jewish people as quickly as possible from different areas throughout Europe.?Was he somebody who was involved in designing the final solution, as it was called in the Third Reich? Was he a policy maker??No he wasn’t. He was basically an implementer.?He was obeying orders and his job was to make the trains run on time, literally speaking; the trains that were going to take Jews to concentration camps. It was a complicated logistical feat and he was in charge of it. His job was to make sure that it was an efficiently run operation. As I said, at the end of the war he was actually captured by the allied forces, but they didn’t realize what a significant figure he was. He was subsequently released, inadvertently made his way to Latin America where he lived undercover until the Mossad found out where he was, and in 1960 they kidnapped him, brought him to Israel where he was tried in the trial that you read about in this book for today. Found guilty of crimes against the Jewish people and crimes against humanity and put to death.

It seems throughout the text that he was driven by this idea of self-advancement, the need to get ahead?to impress his superiors.?He was not a reflective man. He’s not somebody who would question authority. During his testimony he claimed that he didn’t hate Jews. He actually was a supporter of the Zionist movement through some of the readings that he did before 1939. And throughout even the years between 1939 and 1945 when he was carrying out all these actions that were detrimental to the Jewish people, he found himself having Jewish friends, working with the Jewish people trying to find solutions, but as long as that didn’t contradict the orders of his superiors.

He was not somebody motivated by a visceral anti-Semitism. Indeed, you get the impression reading this book that if his superiors had said to him, “Instead of shipping people to concentration camps we want you to ship munitions around the Third Reich to resupply the army,” or “We want you to ship car parts,” he would have done it with the same zeal and desire to improve his standing with his superiors. He wouldn’t have been any different about it. He didn’t seem to be like somebody who saw this as a great opportunity to do something he really believed in. He was simply trying to get an A, trying to get ahead, trying to impress his superiors, do a good and efficient job at whatever it was that he was asked to do. If that’s an accurate description about him it’s quite chilling.

analyzing Eichmann’s Actions [00:05:44]

What is it that makes you uncomfortable about Eichmann??

His un-reflectiveness is what makes people uncomfortable.?He wasn’t thinking about the larger purpose.It is the whole idea of detaching means from ends of thinking about how to do things efficiently without reference to what it is that we are doing.?He was pleased that he had done a good job.?It wasn’t as if he was doing this with any sense of reluctance.?Even though you don’t get the sense that this man had a visceral anti-Semitism about him he certainly was pleased with the fact that his superiors liked what he was doing, and that he was being commended for it, and he was getting ahead.?

So here you have a man who is completely unreflective about what he’s doing. He’s obeying orders from above. He’s not breaking the law?at all. He’s implementing the law as it’s enacted in the Third Reich and he’s going about something that is absolutely monstrous with calm efficiency and good humor. You could imagine this guy going home at the end of the week, playing with children, being friends with the neighbors, going to a barbecue, and going back to work the next day.?One of Arendt’s phrases to capture this is that — one of the things that seems so chilling about this guy is that he doesn’t seem like a monster. He seems like the man next door. And the phrase she uses is, “The banality of evil.” He doesn’t seem like somebody who’s got some unusual traits.

So I think to turn the screw a little bit further one of the things that makes people uncomfortable with a man like this is it sort of makes you wonder how would you have behaved in his situation. You hope you would have not behaved as he did, but he doesn’t seem that unusual. He seems completely unremarkable man, fairly typical guy doing what he’s, you know, putting one foot in front of the other in the situation in which he finds himself and getting on with his life. And that, I think, is captured by her phrase, “The banality of evil.”

analyzing Eichmann’s apprehension, Trial and Execution [00:11:30]

What two things make you most uncomfortable about the events surrounding Eichmann’s apprehension, trial and execution? The normal process if you’re trying to get hold of a criminal in other countries, you go and you apply for extradition, and you make the case, and you go to court, and the person is arrested, and eventually they’re brought to trial. So?why did Israel do what it did? Why do you think they went and kidnapped him??

If they had tried to extradite him it wouldn’t have worked. As soon as he knew that there were many other former Nazis in Argentina and elsewhere in Latin America, the minute he realized that they knew where he was and who he was he would have gone underground and vanished. And there would have been so much sand in the wheels of the extradition system that they made a judgment, which is probably a valid judgment that if they were going to get him at all, this was the way they were going to get him. So that’s why they did it.?

There?were a lot of what we would think of as procedural irregularities in this trial. There’s no doubt that what he did was wrong, but you at least have to go through the procedures just to ensure that justice is actually served, so that even if it was correct that he deserved the death penalty. I think the actual protocol should have been followed and that he should have gotten his time to make the appeal.

It was something of a show trial. There was more than one agenda here. One agenda was justice, bringing him to justice, but clearly there was an agenda of revenge, and there was an agenda of catharsis for many of the people who testified, who came there. It was very important for them personally to get up and speak about what had happened to them for which he was held responsible. So there were multiple agendas going on here, only one of which was what we normally think of as what’s going on in a criminal prosecution.

The author mentioned that Israel wouldn’t have gone to the trouble of kidnapping him if he wasn’t automatically going to be found guilty. It was just a foregone conclusion from the beginning and that’s just really setting such a bad precedent for trials in general. So even though it wasn’t clear he was guilty the fact that it was just — they wouldn’t have even troubled going through it if they thought there was any possibility of him being found innocent or not guilty.

They didn’t have what we call discovery. There was a lot of procedural irregularities here. They didn’t have access to the evidence. There was a lot of what would be called reversible error in this trial; that is on appeal would have run into trouble, procedural problems.?

They arrogated to themselves the right to prosecute in the name of the Jewish people and in the name of humanity, crimes against humanity they convicted him of.?

Eichmann’s Actions versus His apprehension, Trial and Execution [00:25:24]

Okay, now let’s take a step back from this conversation and bring in what we were doing in the first half of our discussion. Don’t you think there’s a tension now between the two halves of our discussion? ?Because when we were talking about what made us uncomfortable about Eichmann it was his abdicating his moral responsibility to question the prevailing law, to question the legitimacy of what he was being asked to do, his un-reflectiveness, his lack of interest in the overall goals of the enterprise that he was part of. This completely unreflective person doing what he was told to do, obeying orders, trying to please his superiors and get ahead, that’s what made us uncomfortable. But now when we talk about what Israel did in 1960 it seems like what makes you uncomfortable there is the fact that they did do all of those things. They sat down and they said, “Well, yeah, there’s international law, and there’s extradition, but hey, you know what? It’s not going to happen. And if we want to get the morally correct outcome here we have to take it upon ourselves not to accept the existing rules of the game, not to accept the existing order, but to stand up for what’s right.” So how is it that we on the one hand are uncomfortable with Eichmann for failing to do that, but here we’re uncomfortable when these Israeli commandos and prosecutors do exactly that? Is that a real contradiction or am I missing something??

I think that the tension goes away if we say, “Well, the reason we are troubled by Eichmann’s failure to ask any questions about what he was being asked to do within the legal order of the Third Reich is that it was an illegitimate illegal order.” It was as Arendt says somewhere in there, it was a criminal regime, and it was his failure to recognize that that makes us uncomfortable. On the other hand, when we start talking about the system of international law, it has its imperfections, but we’re much more ambivalent about saying people can ignore it with impunity, because we don’t see it as an illegitimate order in the same way that we did. It’s an apparent tension, appearing to be a tension on the fact that most of us don’t have any qualms in thinking about the Third Reich as an illegitimate regime and that that’s why we’re uncomfortable with his actions. Whereas, when you do have at least a fledgling legitimate international legal order we become uncomfortable with people who flout that.

Five Traditions: What Makes a Regime Legitimate or Illegitimate? [00:32:03]

So I think that’s right, but it places the central question of this course into sharp relief because our question is, “Well, what is it that makes a regime legitimate or illegitimate?” If we say you have an obligation to resist an illegitimate regime and to obey a legitimate one, that just pushes the question one step further back. What is it that makes a regime legitimate? We’re basically going to explore five answers to that question, or five types of answers, or five classes of answers to that question, and they represent the main ways in which political legitimacy has been thought about in the western tradition over the past several hundred years.

• The first one that we’re going to look at is the utilitarian tradition. And the utilitarian tradition, which we’re going to trace back to Jeremy Bentham,?that a regime is legitimate to the extent that it maximizes the greatest happiness of the greatest number of its citizens. Now, there are huge arguments within the utilitarian tradition as to what counts as happiness, how you measure it, what you do if promoting the happiness of some comes at the expense of the happiness of others. All of those things get argued about endlessly in the utilitarian tradition, and we will explore some of those arguments as we go along. But the basic idea is that good regimes, legitimate regimes maximize the utility or the happiness of people who are subject to them.

• And then the second tradition we’re going to look at is the Marxist tradition which comes into its own in the nineteenth century, and that basically identifies the legitimacy of the state with the presence or absence of exploitation. Legitimate governments are those that try to prevent exploitation, and illegitimate governments are those that facilitate exploitation. Again, just as in the utilitarian tradition there are huge disagreements about how to identify utility and measure it, in the Marxian tradition, from the beginning, there have been huge disagreements about what constitutes exploitation, how you would know it when you see it, what would be involved in eradicating it, and how governments might or might not be able to do that. But at the end of the day it is the presence of exploitation that is the marker of an illegitimate order, and it’s the possibility of escaping exploitation that creates the possibility of a legitimate order. And so the Marxian answer to the question of legitimacy revolves around this idea of exploitation.

• The third tradition we’re going to look at is what’s commonly known as the social contract tradition, and the social contract tradition founds the legitimacy of a political order in the notion of consent, agreement. Again, you’ll find just as with all these other traditions a lot of disagreement about what constitutes agreement, what constitutes consent. Is it some people who actually agreed at some point in the past that should bind us? The American founders agreed on certain things and therefore we should be bound by what they agreed upon, or is it what any rational person would agree to? Is it a hypothetical idea of consent? Does the consent have to be active? Do people actually have to engage in consent or can it be tacit? Can you demonstrate your consent simply by not leaving? All of these issues will get a lot of attention when we look at the social contract tradition, but for all of their internal differences and disagreements the social contract tradition comes down to the proposition that the legitimacy of the state is rooted in the consent of the governed.

• The fourth tradition we’re going to consider is what I call in the syllabus the anti-Enlightenment tradition, reacting against those first three Enlightenment traditions, and the anti-Enlightenment tradition appeals to tradition. It’s the tradition. The legitimacy of the state resides in, is discovered in the inherited norms, practices and traditions of a society. Again, we will find people struggling with and arguing over what constitutes a tradition, how you will know a tradition when you trip over it, what happens when people disagree about what the tradition implies. All those questions are on the table once we start appealing to tradition, but at the end of the day it is the appeal to tradition itself that becomes important; that when you criticize a government you have to appeal to something that is imminent in and accepted in the tradition. The rights of Englishmen, let’s say, as it was appealed to in the eighteenth century. And then there’s a tradition about what the rights of Englishmen are thought to have been going all the way back to Magna Carta. That becomes the basis for arguing about the legitimacy of the present actions of the government.

• The fifth tradition we’re going to look at is the democratic tradition, and the democratic tradition says that the legitimacy of the state depends upon the extent to which it obeys something which we’ll call the principle of affected interest. That is whether those people whose interests are affected by its actions get to control what it does. Close cousin of consent you might say, and indeed the democratic tradition is a close cousin of the social contract tradition, but at the end of the day it’s a different tradition and often works through, but not always, the idea of majority rule. And so, again, in the democratic tradition there are huge controversies about how we operationalize and apply this idea of affected interest as the basis of politics, but the underlying notion is that if you can resolve those issues, trying to make the government the agent of people who are affected by what it does, is the name of the game in promoting legitimacy and undermining illegitimacy of the state.

So those are the five traditions we’re going to explore. We’re going to come back again and again, not only to the Eichmann problem, but to other practical examples that throw this question of the legitimacy of the state into sharp relief. But at the end of the day we’re always trying to understand what the basis for political legitimacy actually is.?

What about the notion that might makes right and it’s the most powerful states that get to dictate what legitimacy is??So this is a doctrine which we will consider in the course of our discussion, actually, on utilitarianism. It is, for those of you who want the jargon, the doctrine of legal positivism.?Legal positivism was the doctrine that said exactly what this gentleman here has been saying; that what makes something law is the ability to get people to obey it. If you go back into Medieval Europe we’ll find a distinction between natural law and positive law. Natural law is sometimes identified with the will of God, sometimes with timeless universal moral principles, some higher law by reference to which we judge what actual legal systems are doing. So when we say the Third Reich was a criminal regime, an illegitimate regime, we’re ultimately appealing to some kind of higher law, some natural law idea as to what constitutes a legitimate regime.?And we’re going to talk a lot more about natural law later.

Legal positivism was the doctrine that there’s no such thing as natural law. Jeremy Bentham?says, “Natural law, natural rights it’s dangerous nonsense, nonsense on stilts. There’s no such thing as natural law.” And he is considered as one of the intellectual sources for this doctrine of legal positivism, which comes into its own in the nineteenth century. If you say, well, there is no higher law then the question is, then?what is law based on? One answer is power. Bentham wanted to say it should be based on science. As I mentioned to you last time, the Enlightenment is all about faith in science. So we will consider a version of that argument when we come to talk about utilitarianism, but it’s a good point to make particularly in the context of the Eichmann problem.

Locke actually performs two different functions in this course that you will see. They come together later on. You’ll see how they come together later in the course. But Locke, on the one hand, we’re using as somebody to provide us with a way of understanding the Enlightenment move in politics. And as I said to you, the Enlightenment move involves a twin commitment to the ideas of science as the basis for social organization and freedom as the highest good, and that that Enlightenment pair of assumptions is going to inform the first three traditions we look at.?The utilitarian tradition, the Marxian tradition and the social contract tradition. Locke will also be looked at later as a representative of the social contract tradition. But what we’re going to do in Friday’s lecture is think about the broad themes of the Enlightenment, for which the Locke reading is there and it’s going to provide the background.

One thing I would say to you about the Locke going in — on the one hand it’s a tremendously famous book. It’s been in print continuously for more than 300 years. It’s been translated into all the world’s languages — all of the world’s major languages and many of the world’s minor languages. Locke’s most important political writing for sure. It’s not a fast read. It’s a political pamphlet. It was written for a very particular political purpose that I’ll tell you something about, but it’s not a fast read in the sense that what you read for today is a fast read, and some of it’s going to go right by you and that’s okay. Because you might think, “Well, not only is it not a fast read, but he’s going to do a lot of this in one lecture. It seems like a lot to do in fifty minutes,” but the truth is we’re going to come back to Locke again and again through this course, and what you’re going to discover is that the ghost of Locke is hovering behind us all the way through. In many ways modern democratic theory is a footnote to Locke, and so you’ll see we’ll consider Locke as a father of the Enlightenment, as a representative of the social contract tradition, and then Lockean considerations will come in to the Marxist tradition, to the democratic tradition, to the social contract tradition as well.