Natural Law and the Paradox of Evil
Heller, Agnes
Whether moral decisions are evaluated by universal standards or by those of local traditions, moral conflicts are always contextual. Kant's categorical imperative is absolutely universalistic,...
...To reawaken memories is not, for the most part, welcome...
...Can justice still be done...
...After looking briefly at the arguments against prosecution, we listened to three groups of people who subscribed to the verdict that the perpetrators of such crimes should be punished...
...In what follows, I address some of the merits and demerits of the arguments and evaluate some of our general intuitions on this subject...
...And on the other, choose we must, at least in the inner fastness of our souls...
...Let us take well-known historical examples of treason, confiscation of wealth, instigation of civil war, political assassination, and mass extermination— whether or not the latter was committed under the forms of legality...
...Let us then have a new round of Nuremberg Trials...
...One chooses one principle, and thereby infringes on the other...
...Whatever we should do, we must be able to do...
...It is only now that the victims and the families of victims can cry out for justice and revenge...
...In the judgment that "perpetrators of heinous crimes should not be punished," the punishment can refer either to legal punishment alone, that is, to indictment, or to moral punishment...
...The "should" refers to the exclusively moral motivation behind the insistence on historical justice...
...Evil is active while it holds power, but once its power is gone, evil is just an empty shell, the physical body of a person who was once evil...
...One could repeat her exclamation with reference to many a person alive today...
...The second insists: since they should be punished, they can be punished...
...First, it disallows the suspension of our own laws—laws such as the statute of limitations—in certain extraordinary cases, such as the punishment of heinous crimes...
...The purely moral reason is religious, even if it is on occasion 106 • DISSENT The Paradox of Evil found in the mouth of unbelievers...
...Whether, in punishing, we punish anything other than the manifestation of evil, is an empirical question, and one that has nothing to do with historical justice...
...Even if we take the execution of Mary Stuart to be a judicial murder, we do not intuitively condemn Elizabeth the First as a murderer...
...The so-called laws of nature are only the projections of our general moral intuition...
...If a totalitarian regime lasts long enough, the worst of the malefactors are already in their graves, beyond the reach of human retribution...
...But mass murder, be it an act of collective political proscription (as happened under Sulla) or a collective act of terrorism against the "religious alien" (as happened to the Protestants during the St...
...In returning to these six combinations, I shall now consider only the case of evil...
...As Kant pointed out, evil resides in evil maxims, not in desires or weakness of character...
...Notes Judith Shklar, Legalism: Law, Morals and Political Trials (Cambridge, Mass.: Harvard University Press, 1964...
...But one cannot forgive the murder of other people's children, nor should one...
...First version: Too much blood has been shed...
...For the first position ("Justice should and cannot be done"), the obstacles to justice could not be obviated...
...Self-destruction is the inevitable logic of evil, however long it is in power, however long it lasts...
...Yet he can feel remorse and may indulge in gestures of disorderly repentance...
...To this I answer: One cannot morally punish a person who is removed from normal moral discourse, who does not experience pangs of conscience, or who has already forgotten his or her crimes...
...In the second, the moral motivation is negligible...
...Something must have gone wrong at the outset, for the conclusion is not merely disquieting but downright false...
...Kant's categorical imperative is absolutely universalistic, but its test cases are concrete and particular...
...it treats historical periods as if they were machines...
...That is, despite all pragmatic arguments to the contrary, the morally approved course of action should go ahead...
...The moral argument for this position can be summed up as follows: Positions one and two both state that a moral ought ("Justice should be done") is confronted with a mainly legal and pragmatic consideration that brings into focus certain secondary moral issues...
...Evil is qualitatively different from the morally bad...
...One is the author of one's own deeds, good or bad...
...One has no moral right to forgive in the name of the dead or of the mourners...
...Symbolically and in very truth, men and women had to forgive the sins of those who wronged themselves, their families, or friends...
...We know that X was the author of a heinous crime, and we believe that heinous crimes should be punished in order for historic justice to be done...
...The times were out of joint, and we must set them straight...
...But if a person can be punished only by suspension of the law, he should not be WINTER • 1994 • 109 The Paradox of Evil punished, because the maxim that recommends the suspension of the law is itself evil...
...To this maxim there is no exception...
...It states that heinous crimes should be punished—and simultaneously insists that its perpetrators should not be punished...
...No legal system, not even a brand-new one with its origins in democracy, can be allowed to stand in the way of justice...
...4) They should and can be prosecuted...
...We turn now to the last position...
...On the contrary, like Horatio "speaking to th'yet unknowing world," we should tell and retell the story of those "carnal, bloody, and unnatural acts," those "accidental judgments, casual slaughters" and "deaths put on by cunning and forced cause" perpetrated by the hand of evil, in the twentieth century, in our own house, and on such a scale as not only Horatio but Hamlet himself had never dreamt of in his philosophy...
...But it should also be said that the context was unique...
...In contemporary Argentina, no one can any longer cause people to "disappear" by kidnap, torture, and murder, as happened in the past...
...The other formula, according to which "they should not be punished," can imply one of three things...
...But not everything written on a piece of paper and passed as law by a bunch of murderers, their accomplices, and the agents of their institutions, bullied into obedience, qualifies as law...
...Turning now to the question of historical justice: when we subscribe to the sentiment that justice should be done—regardless of whether it will be done—it is historical justice of which we speak...
...The Claudius with whom we have to deal has already lost both crown and queen...
...The epidemic flourishes, evil gains the upper hand and begins to operate on a grand scale, leaving behind it human hecatombs, misery, and devastation...
...First proposition: Perpetrators of heinous crimes should not be indicted but only morally censured...
...Our model of Evil, by way of contrast, is Satan, not because he does the wrong things, but because he induces others to do the wrong things by persuading them that evil is right...
...Second proposition: those guilty of heinous crimes should not be punished at all...
...A profusion of historical texts exist on which we may base our interpretations and reinterpretations...
...Should they be allowed to do so with impunity...
...A future that is fabricated ex nihilo rests on unsound foundations...
...This fear is not unfounded...
...Three persons say in unison that the perpetrators should be punished...
...In this later phase, they are joined by those who were only slightly infected, who now shrug off their infection and may even attack evil on its home territory...
...Contrast this with the qualities needed to subscribe to the verdict that those guilty of heinous crimes should be punished...
...There are several arguments intended to show that not even those guilty of the most heinous crimes should be indicted...
...What kind of morality would this example suggest to present and future politicians...
...But the question whether those guilty of heinous crimes should be punished is, in this way, evacuated of its political and social content, and no longer calls for a straightforward answer even when it is asked in a specific context...
...The Nuremberg Trials stand as the embodiment of the regulative idea, the oughtsentence according to which those guilty of heinous crimes ought to be punished...
...This is why we are impotent against evil...
...The context for this position is the same as that for the other two positions...
...Devils are in fact rare phenomena...
...It is the former who originated the evil maxims and who stick to their principles to the last, whose consciences are unruffled and who ascribe the defeat or failure of their principles to the weakness of their followers...
...But the diminishing energy of evil led to a kind of banalization...
...Compromises are, alas, necessary in political life, and in this case, justice cannot be done...
...The granting of general amnesties or the application of the statute of limitations to functionaries and high officials of the former regimes presents no grave moral problem in my view...
...Let us consider the first formula, according to which "Justice should be done...
...But the second position is essentially wrongheaded, for the suspension of the law for particular cases is not just legally but morally wrong...
...they are demonic...
...But there is another possible obstacle to punishment...
...If you forgive in the name of others, you can forgive yourself in their name for the evil you perpetrate, and this is an immoral principle...
...In the original or initial state, evil has a high density and visibility...
...one is not necessarily the author of the conditions under which they were committed...
...Even where the indictment is for common murder, the consensus against capital punishment in "political" cases is very strong, and this is also true in those countries where it has not been abolished...
...We conclude that the position that "they should be punished, but cannot be" is a lopsided one...
...But the principle remains: there are crimes on a smaller scale that can still make people miserable, and one never knows what opportunities for evil will arise in the future...
...The alternative to be faced is "The Limits to Natural Law and the Paradox of Evil," by Agnes Heller...
...Their context remains forever unique...
...Anyone subscribing to this verdict thereby signs the decree of punishment, whether or not the punishment will in fact be carried out...
...What is merely bad is normally repulsive, but a certain power of attraction emanates from moral evil as such...
...But since decision here is a matter of judgment, one stratagem for evaluating our intuitions is to replace the type of cases now to be judged with analogous ones from history...
...or if one chooses neither, one infringes on both...
...Under present conditions, only the population of the country where those crimes were committed has, or can claim to have, the authority to decide...
...The only exception I make is where such officials or functionaries were perpetrators of evil...
...Let me summarize our conclusions...
...It is, of course, an entirely different matter whether future interpreters will consider the perpetrators in the same psychological light as we do, whether they will reinterpret the personhood of the perpetrators...
...But if they feel anything approaching adequate remorse, they have already been morally punished, and need no second moral punishment...
...Perpetrators of heinous crimes in a totalitarian regime cannot subsequently be morally punished unless they feel remorse...
...5) They should be prosecuted for historical justice to be done...
...The moral issue here is not whether this oblivion is a good or a bad thing...
...Modern society is not a homogeneous community...
...There are evil persons in the world...
...No courage and decency are needed here...
...There can, in short, be no national reconciliation if one forgets the very events that set the nation at odds...
...Moral evil 104 • DISSENT The Paradox of Evil requires a fairly sophisticated and consistent system of self-justification...
...There are, however, various admixtures of pragmatic and moral reasons that can be adduced in its favor...
...There is no evil without power...
...In our discussion of evil, we concluded that those guilty of heinous crimes should be punished, for justice must be done...
...And then, if there is still a "then," the epidemic recedes, and the evil maxims are replaced by disappointment or cynicism...
...To sign it is to be led by the belief that it is wrong to let heinous crimes go unpunished, that justice should be done...
...Where intuition is so disparate in its conclusions, we have no moral justification for recourse to the fictitious laws of nature that must by definition reflect moral intuition...
...But * Erich Honecker, president of the German Democratic Republic from 1976 to 1990...
...It emerges that the double formula of "Those guilty of heinous crimes should be punished and at the same time should not be punished," that this gesture of throwing the ball back into the court, of informing the decision makers that moral conflict cannot be solved but only cut off by the leap of choice, is a confession of defeat...
...But nothing has, as yet, been said about evil...
...And where morality collides with pragmatic considerations, the old Kantian recipe is still valid...
...The maximum that the law should be suspended in particular cases is an evil maxim...
...The legitimate prime minister of Hungary was tried and executed according to laws extant...
...Can evil be punished while it lasts, while it is evil incarnate...
...After the years of escalation of evil, there was a cyclic diminution of its energy...
...All that will transpire is the impossibility of founding such laws...
...Finally, (6) they should pay for their crimes...
...It is not an insignificant possibility that the morally right could result in the morally wrong...
...Signing and taking responsibility are not acts to be lightly accomplished...
...Copyright © 1993 by Basic Books...
...These were the six major recommendations for dealing with the unique issues of justice raised by the collapse of totalitarian and other criminal dictatorial regimes...
...The available options can be defined in terms of six possible combinations of a legal and a moral position...
...But why is there no moral consensus about the desirability of new Nuremberg Trials...
...Thus we see that the recommendation that perpetrators of heinous crimes should only be morally punished is inconsistent, for in either of the two cases we have raised, those who are only morally punished are not punished at all...
...Resistance to evil, on the other hand, is found in persons combining two characteristics: good maxims and excellent character...
...Still, the first two positions have a certain value as recommendations...
...In whichever of the four combinations it occurs, the formula that perpetrators of heinous 102 • DISSENT The Paradox of Sidi crimes" "should be punished" implies that "Justice should be done...
...For this we need everyone's skill and cooperation...
...and whether they should be prosecuted, that is, whether there is a moral obligation to prosecute them...
...It arises in states where the constitution does not provide for the prosecution of those guilty of heinous crimes...
...I discern evil in the acts in which others discern it...
...The policy adopted in Spain in the aftermath of the Franco regime may serve as a model for the successful combination of moral and pragmatic considerations...
...One cannot morally punish a person who despises morals as "petty bourgeois" or as utterly irrelevant...
...The decision not to prosecute the offenders does not cause hatred, resentment, and personal grievances to be forgotten: they simply resurface at the next suitable occasion...
...Evil maxims on the one hand align themselves with the underworld of the human soul, on the other don the garb of high sophistication...
...Let us take an example...
...he or she feels only the remorse of having bet on the wrong horse...
...In this political context, the accused is guilty of a crime if he or she is not only the author of the crime but also of the circumstances under which that crime was ordered or encouraged...
...The perpetrators cannot be punished, because the main culprits, the initiators of all the evils, are now beyond the reach of human retribution...
...that we should, while taking account of rules and laws, nevertheless decide...
...Even in one's capacity as an ordinary citizen, one should take one's responsibility no less seriously than would an appointed judge, a member of a jury, or a member of a political body—of an executive or legislative body...
...For example, in cases of treason, confiscation of wealth, instigation of civil war, or political assassination, our judgment may be divided...
...The perpetrators of heinous crimes should be punished because justice should be done...
...It is for this reason that only genuinely heinous crimes should be punished, for only in such cases can we be certain that all morally competent future generations will subscribe to our verdict and that they will not interpret the act we punish in a different light...
...The Spanish solution can serve as an example only in countries where decisions take place in a somewhat similar context...
...We take that responsibility, indeed, even if we go on to say "and yet they cannot be punished...
...But history includes the future...
...If there is a procedure based on fictitious natural law, it is the consensus of moral intuition that must guide us in establishing the rightness of the principle...
...I hope that my theoretical interpretation of evil will illuminate our problem, without shifting the focus of our inquiry...
...In modernity, where traditional morals have become attenuated, evil maxims easily gain the upper hand...
...In the newly unified Germany, no one can give the order that those who cross the border should be shot...
...In identifying the perpetrators of politically motivated or conditioned crimes, we can avail ourselves of more than forty years of discussion of the Nuremberg trials...
...WINTER • 1994 • 103 The Paradox of Evil The procedure I recommend here is not a mental experiment but an exercise in becoming aware of our judgmental intuitions...
...They know where right ends and wrong begins...
...There is no place for legalism here, the argument runs, first and foremost because the brand-new laws should not run counter to our moral intuitions...
...The third position, by contrast, is not a recommendation at all...
...He does not, however, invent principles that make the wrong right...
...Self-punishment, in the form of repentance or penitence, does not constitute an exception...
...Certainly, the soldier too is responsible for the death of the persons he has shot...
...The soul is not healed just because the epidemic has passed...
...The combinations will become clearer as we proceed...
...Finally, I identified heinous crimes as manifestations of evil...
...All three positions remain thoroughly problematic...
...If the first is accepted, heinous crimes remain unpunished...
...People will be so anxious to turn over a new leaf that the crimes of their rulers will go unpunished in the future as they did in the past...
...The politics of repression are the politics of psychological repression...
...Those who oppose punishment on moral grounds often do so on the basis of a deterrent theory of punishment...
...After the demise of totalitarianism, it is not difficult to distinguish between the "originally evil" and those who became evil through secondary infection...
...The second position denies the relevance of 108 • DISSENT The Paradox of Evil this "cannot...
...I shall not, however, take into account the view of unreconstructed Stalinists, for in their view, no crimes were committed, and if any were committed, they occurred only as the side effects of an otherwise commendable course of action...
...In the first formulation, pragmatic and moral considerations are combined...
...The knowledge of moral evil emerges through reflection...
...And evil must indeed be resisted while it is in power...
...Yet the unreflective intuition of the population is unreliable, for it is divided along generational lines...
...Evil in this form is sorcery...
...Whenever the intuitive consensus is in favor of punishment, the judgment will apply to contemporary cases too...
...1) There should be no prosecution at all, nor can there be...
...A nagging awareness of the past creates the third dimension of history, the dimension of meaning that gives life to any projection of the future, however radical the break with the past...
...No paradox here, just a moral conflict in context...
...Only through internalizing this discourse can they come to believe that they have an obligation to denounce their parents to the police or to confess to crimes that they never committed...
...Let us first consider the "new leaf " argument...
...A bad character succumbs to base passions such as envy, and behaves in a cowardly fashion...
...No new law will be founded, or ancient law revived, by their decision...
...Anyone can avoid moral censure by choosing to live among those who are morally like themselves...
...And if they are opened, and the name of the person who denounced me comes to light, I can perhaps forgive him or her...
...This position sounds absurd and paradoxical, but it is neither...
...Philosophers who locate evil in evil maxims have always counted arguments in favor of its suspension as evil...
...that, in deciding, we should give ourselves up to the impossible decision...
...In resisting evil, they display courage and decency...
...And no one else can either...
...In thus subscribing to the injunction that "perpetrators of heinous crimes should be punished," we take responsibility for the punishment of the perpetrators...
...Thus the conclusion that perpetrators of heinous crimes should and at the same time should not be punished...
...It was because he could not condone such arguments that Socrates suffered an unjust death rather than attempt to escape the laws of his country, and that Kant made such a strong case not against tyrannicide but against the trial of Louis XVI...
...For there is a logic in the Christian commandment...
...In all probability some will be prosecuted, but a majority of them will not...
...Here we took a context narrower than before...
...It can imply, most radically, that "justice should not be done...
...you should forgive those who have wronged you because the principle is of justice, as distinct from revenge...
...Thus it no longer serves any deterrent function to punish those who committed heinous crimes...
...perhaps the virus of evil that inhabited his soul has departed leaving only the empty husk of an elderly body and a banal soul...
...The first position is this: justice requires that we prosecute the perpetrators of heinous crimes, but the legal system does not permit it...
...This is a "technological" argument...
...Evil should be punished everywhere, under all circumstances, and no less, therefore, in the context we here consider...
...het me turn briefly to a second version of the "new leaf of history" argument...
...Let us now turn to the arguments against punishing the perpetrators of evil...
...It was possible to bring to justice all the perpetrators of Nazi crimes, with the exception of Hitler, Himmler, and Goebbels, who escaped through suicide...
...One might say here, with Derrida, 3 that justice is always incalculable...
...and second, it treats the pseudo-laws of totalitarian regimes as if they were real ones...
...they do not become infected during the epidemic...
...that it requires that one calculate the incalculable...
...We do so regardless of whether they can (legally) be punished and of whether they will in fact be punished...
...The idyllic new page of history will not, after all, be clean...
...Yet it is impossible to choose both at once—this is the definition of a moral conflict...
...let us put an end to blood-letting...
...Besides, these people have no arguments to offer in the standard language of morals or politics, from which their discourse as much as their actions has excluded them...
...Scarpia was an evil, treacherous, political murderer—and there are today Scarpias who walk among us, enjoying both their lives and the benefits of their crimes...
...But the radius of their influence is generally insignificant...
...Imagine the situation where veteran mass WINTER • 1994 • 107 The Paradox of Evil murderers continue to live in the same conditions as everyone else, or, for that matter, in better ones...
...And the arguments we have set out show that there is no consensus at all as to whether people who have committed heinous crimes should now be punished...
...And even in those cases where we do intuit a crime, it does not follow that we regard the perpetrator as criminal...
...Yet it is precisely this intuition that one must rely upon, for no one other than the members of this community is entitled to determine which crimes are so heinous as to call for punishment...
...Evil maxims are, of course, still around, as they always will be while there are maxims to choose and freedom to choose them...
...But where two moral choices confront one another, no categorical imperative is available...
...There is no need to open secret police files...
...Good can resist evil while evil lasts, but becomes impotent against it after evil's demise...
...Soviet totalitarianism, in contrast, lasted between forty and seventy-five years...
...3) The perpetrators should be prosecuted, but cannot be...
...Prosecution would, to take an example, require retroactive legislation...
...If we confront the advocates of the third position with the Nuremberg Trials, they will answer that the context in which they must reach a verdict is entirely different...
...The maxim that perpetrators of heinous crimes should be punished is transcontextual...
...But it is of secondary importance whether the surviving perpetrators of crimes are actually punished...
...The first adds: alas, they cannot be...
...This qualitative difference has become explicit in modern times, although it had already been discovered by particularly discerning moralists such as certain Jewish prophets and Greek philosophers...
...We are responsible for their punishment because, regardless of the ultimate course of events, our injunction is an act equivalent to signing the decree of their punishment...
...If one accepts the principle of deterrence, the negative formulation that "we need not punish where there is no reason to deter" must be balanced by the positive formulation that "if we wish to deter, we must punish...
...Punishment is no longer necessary, it is argued, because the perpetrators of heinous crimes are no longer in a position to commit such crimes...
...not that of life or death but of prosecution or inaction...
...The question is simply thrown back to the person who asks it: you choose, you sign, it is your responsibility, only be aware that you choose between two evils...
...Those who have wronged me I can perhaps forgive...
...112 • DISSENT...
...they should be prosecuted and yet, at the same time, they should not be prosecuted...
...These are the last of the three combinations that we introduced, and I shall analyze them one by one...
...Or at least, if it does, we cannot know this...
...But the suffering of the mourner is not mitigated by the lapse of time...
...Whether the perpetrators of such crimes will be prosecuted is not itself a theoretical question...
...But in the continuous phase of totalitarianism (we refer here to Communist totalitarianism, since Nazism was defeated in its first phase), the density and visibility of evil diminish, and its epidemic effect dies away...
...Hannah Arendt's grave meditations on the justification of capital punishment in the Eichmann case are therefore irrelevant in the current context...
...There is, moreover, a difference between initial and continuous totalitarianism...
...Or it can imply a positive moral standpoint: "It would be unjust to punish them...
...The principal victims of the regime were immune from the virus in any case...
...even the guilty begin to forget their guilt...
...Evil characters, if we compare their numbers to those of the wrongdoers who have caught the virus and become evil under its influence, are few and far between...
...Germany is in the same position as postwar France, which regarded Vichy as a part of the French state...
...The obstacles to punishment that we have discussed so far have been pragmatic and legalistic...
...Perpetrators of heinous crimes should be punished, for no counter-argument has so far convinced us of the contrary...
...In short, when we demand that heinous crimes ought to be punished in order for historical justice to be done, we are claiming that all morally competent future generations would consent to the historical justice of our judgment...
...It is useless to concern ourselves with the past...
...its two components are not equally stable...
...The third raises her hands in perplexity: they should be punished, and yet, at the same time, they should not...
...Revenge calls forth further revenge, and there is no end to it...
...Pangs of conscience or repentance are rare...
...If there should be a second edition of the Nuremberg Trials without the support of consensual moral intuition, it will cast a retrospective shadow on the Nuremberg Trials themselves...
...These evil maxims form the basis of the discourse initiated in a totalitarian regime, a discourse into which the proverbial "man on the street" is drawn...
...Among them are the following: there can be no turning over a new leaf without catharsis, and there can be no catharsis if we simply sweep crimes under the carpet...
...If the second position is accepted, a procedure that feeds on moral legitimacy will be pushed forward in the absence of any such legitimacy...
...it merely formulates a moral conflict...
...that it addresses itself to singularity...
...Those who commit the most execrable crimes will get away with it...
...But others should not forgive on your behalf, nor should you forgive on others' behalf, or there would be no justice...
...Petty thieves will go to prison in countries where mass murderers will enjoy a peaceful old age...
...For evil to be punished, a recourse to the fictitious laws of nature was necessary, and this meets with our own intuitive—and retrospective—approval...
...The blood of the victims cries out to heaven for punishment to be administered in the next world, but no less to ourselves and to posterity for punishment in this world...
...The purely moral injunction to "love your enemies, forgive those who have wronged you" takes on an aura of truth in the context of the Spanish Civil War, in which both sides committed heinous crimes...
...We conclude, then, that what I called our impotence in facing evil is not the manifestation of general human fragility, but a predicament that follows from the very character of evil...
...For the second ("Justice should and therefore could be done") the obstacles could be removed...
...Normal people—people neither especially good nor especially bad—are exposed to the disease, take the contagion, and become alienated from their previous selves...
...It is possible of course that no political crimes could today be of the same magnitude as those of the past...
...A repeat of the Nuremberg Trials, we have argued, is morally impossible, given the absence of moral consensus about its desirability...
...Under this heading there is a single purely moral argument...
...New generations grew up, and many terrible deeds were simply forgotten...
...the moral "ought" should have priority...
...But those who trembled had, at the time, good reason to do so...
...On the one hand, the argument runs, those who decide will incur guilt whatever course they fasten on...
...Their character makes them stand up to evil and oppose it, and they would rather suffer than commit injustice...
...Morality is on the side of those insisting on punishment, but the legal aspects of the argument are treated as little more than a pragmatic consideration, at very best a token on the altar of national, historical reconciliation...
...they originate evil maxims...
...But for the time being the WINTER • 1994 • 105 The Paradox of Evil bearers of evil maxims seem to have been marginalized...
...Since the demon is always associated with (totalitarian) power, the slackening of the regime in the continuous phase necessarily has a therapeutic effect...
...Excerpted from On Human Rights: The Oxford Amnesty Lectures 1993, edited by Stephen Shute and Susan Hurley...
...Puccini's Tosca looks at the dead Scarpia and exclaims: "and before this man all Rome trembled...
...They cannot repeat their crimes...
...we must look ahead, to the future...
...It can imply resignation: "There is no justice in this matter anyway...
...This specificity of evil, that it is not necessarily a permanent resident of the souls that it inhabits, but may enter a soul and subsequently leave it, obviously complicates the issue of retribution...
...We know from experience that evil can in fact be resisted, that many men and women have resisted evil in dark times...
...Then we returned to the context, that is, to the situations in which decisions are now being taken...
...Thousands of trainloads of kulaks were "lawfully" driven to the taiga and left to starve to death with their children...
...We assumed a democratically based legal system that makes no provision for the indictment of the perpetrators, and we imagined that the guilty showed no sign of serious moral repentance...
...Sometimes we are uncertain whether the deeds in question were crimes at all...
...There are two versions of the argument...
...One might equally maintain that a people can only turn to a new and clean page of history after having meted out punishment for heinous crimes...
...this is what the present and future politicians will conclude...
...In this community, public censure is dismissed, and the prospect of divine punishment mocked as superstition...
...whether those responsible for murder, kidnapping, and mass incarceration and discrimination, can, will, or should be made to pay for what they have done...
...Let me recapitulate the core of our predicament...
...Where there is no freedom to choose principles of action, there can be badness but not Evil...
...Evil, as we have seen, is intimately related to power, it thrives upon the confidence that its power is irresistible, whether this power is political, social, or psychological...
...The motive for the act of retribution is to restore the balance of justice as far as humanly possible...
...Quite different moral characters can subscribe to the judgment, not least those cowards who hid in the dark while evil was still in power...
...In the ex-communist states, and in post-totalitarian states, the situation is quite other, and the example of Spain not therefore applicable...
...The two positions diverge on one count...
...Such acts are unanimously condemned as evil, at least in the context of the European tradition of the last few centuries, and rightly so, for they are the visible face of evil...
...evil is evil, evil is always infinite, and we can say with Nicolaus of Cusa that in an infinite triangle all sides would always be equal, for all of them would be infinite...
...it terrifies, demands submission...
...Everything that has happened till now should be forgotten...
...Bartholomew's Night Massacre) is not open to a forgiving understanding and interpretation...
...If, like Honecker,* one gives the order "shoot to kill" in relation to innocent persons who are trying to escape to freedom, one is guilty of murder, whereas the soldier who obeys that order is not...
...we looked at the hardest cases...
...It is simply that under these conditions, even if there were a consensus about which crimes were so heinous as to require punishment, no moral consensus about new Nuremberg Trials could possibly emerge...
...The followers, by contrast, can get confused, rewrite their pasts, forget the evil they have committed, and remember only the evils they have suffered...
...Who is to decide which heinous crimes must be punished for justice to be done...
...In the argument under scrutiny, however, retribution is suspended and the act of justice deliberately forgone because of the fear that this act will itself lead to injustices, indeed to a series of injustices...
...A bad character chooses to commit injustice rather than to suffer it for he makes an exception for himself...
...They do at least tell us what to do...
...Opinions may differ about Hitler's personality, but no morally competent person can ever justify Auschwitz...
...Even if one believes that historical justice must be done for any page of history to be clean, it is not in order to cleanse the pages of history that crimes are punished...
...Yet everything that can hamper men and women in the process of decision is here present in the 110 • DISSENT The Paradox of Evil extreme, for there are no laws and no rules, not even the prospect of guidance, to orient those who decide...
...German jurisdiction over the crimes committed in former "East Germany" is not a counter-example...
...It would convey a simple message: whatever they do, however criminal their acts, they will get away with them, provided only that they rule for a sufficiently long time, and that they take pains to hide their crimes under the forms of legality...
...On the contrary, there are good reasons for behaving in this way...
...The obsolete appliances have to be thrown away and replaced by new ones...
...Where laws were produced according to whim, political convenience, and the dictates of political revenge, there were no laws...
...Paying" here means paying a part rather than the whole price for their acts...
...Psychological or phenomenological hermeneutics do not concern the moral judgments of events...
...Second version: National reconciliation requires that the past be buried...
...In the same way, when I now raise the question of how we can deal with Evil, I do so in a specific context...
...This remains true even if, for other reasons, it is decided that legal action cannot be taken...
...Good maxims immunize them to the attraction of evil...
...In this version, it is argued that the past should be forgotten in order that the future can begin...
...Evil is not an accumulated or excessive moral badness distinguished from all other categories of badness simply by quantity...
...Signing is an act of taking responsibility...
...But perhaps the X of today is not the X who committed the crime...
...The citizens begin to speak the language of totalitarianism and as a result come to take for granted acts which a year before they would not have accepted, and the endorsement of which would have been entirely out of character...
...This is how evil could seem banal to Hannah Arendt...
...Plato's Thrasymachos or Callicles are devilish, not because they are bad characters, but because they make a strong case for maxims that confuse our capacity to distinguish between good and evil...
...Those who subscribe to the "ought"sentence ("Perpetrators of heinous crimes ought to be punished") must therefore consider which crimes are "heinous" and which persons are to be identified as their perpetrators...
...Let us assume, for the sake of simplicity, what I do not acknowledge in fact: that the main principle of punishment is deterrence...
...It is to concede our impotence in the confrontation with evil...
...There can be no question of international jurisdiction...
...All the pragmatic arguments in favor of not punishing the guilty in this case boil down to the desire to "turn over a new leaf...
...It is commonplace that good results may flow from bad intentions or designs, but no commonplace makes good of bad or bad of good...
...there is nothing to underpin it...
...It is the precept to "Love your enemies, forgive those who have wronged you...
...A clean page in the history of Spain was opened and the consequences were morally and pragmatically benign...
...3 Jacques Derrida, "Deconstruction and the Possibility of Justice," Cardozo Law Review, 11:919, 1990...
...Totalitarianism in particular is morally founded on evil maxims...
...There is therefore only one purely moral gesture open to us here, the exclamation of the saintly Alyosha Karamazov reacting to an account of barbarity: "Shoot him...
...The pathetically banal soul does not even feel guilty...
...This is not because the Nazi crimes were of a different degree of heinousness...
...Where a moral choice is confronted with a pragmatic or consequentialist consideration, the categorical imperative or one of its variants can cut the Gordian knot...
...It turns against itself...
...The discussion was conducted in the abstract, regardless of context...
...This does not, of course, affect the principle that evil should be punished...
...If one subscribes to the sentence that "perpetrators of heinous crimes should be punished," one also needs a yardstick more reliable than the intuitions of the members of a specific community...
...Each combination of "can" and "should" in relation to these questions represents a moral standpoint...
...If evil maxims can establish a power base that lasts long enough, perpetrators of evil will, in all probability, never be punished...
...I once compared totalitarianism to a disease...
...The moral conflicts that I shall discuss are those that occur in the aftermath of the collapse of totalitarian regimes and of military and other dictatorships...
...While acknowledging these consequentialist points, we should note that there are also consequentialist arguments in favor of punishment...
...Thus we are confined to two issues: whether there are legal grounds in the existing constitutions (or laws equivalent to constitutions) for the prosecution of these persons...
...Reprinted by arrangement with Basic Books, a division of HarperCollins Publishers Inc...
...The answer is no: evil cannot be punished, but is self-destructive...
...All moral conflicts, like moral choices, are contextual...
...Enforced silence rather deepens the wound...
...The Nuremberg Trials are our example, and the example is there to be imitated...
...A handful of them are alive, but most of them are dead...
...In regimes of long standing, different generations have different life experiences, and in a long era of enforced silence, crimes unmentioned because unmentionable will tend to be forgotten...
...If one catches the virus of evil, one becomes evil, even if there had been no "original evil" in one's character...
...Others were morally immune and never succumbed...
...In the absence of this consensual intuition, the WINTER • 1994 • 111 The Paradox of Evil laws of nature are a mere anachronism...
...However commendable in the field of technology, this attitude is wholly out of place in relation to a nation's history, which is no less about remembering and hanging on to the past than it is about the projection of the future...
...What one ought to do, one can do...
...And the conclusions of this discussion are fairly clear...
...They can remain an exemplary act of justice only on condition they are not copied...
...The Nazis were in power for little more than ten years, ten years characterized by the escalation of evil...
...I shall consider these point by point...
...Every gesture of retribution carries in it the risk of escalation...
...We should not poison our souls with the desire for revenge...
...Evil should not go unpunished, but neither should one act upon evil maxims, whatever good consequences may follow...
...But even if I succeed in loving my enemies, should I also love those who have wronged my neighbor beyond repair...
...It locates a moral conflict...
...The collapse of totalitarianism brings the epidemic to an end...
...The question is whether the evils perpetrated under murderous political regimes can, should, or will be punished...
...it is demonic...
...I then identified two categories of crime, the historical and the heinous...
...If there is a consensus that heinous crimes have been committed, the perpetrators have to answer for them...
...They may also be viewed as virtuous deeds: the prophet Jeremiah committed treason, Judith assassinated Holofernes...
...it is my account of evil that is distinctive...
...But there are no clean new pages in the book of history, and there is no cleansing to be attained at the price of forgetting...
...At the outset, I specified six combinations of two elements, one of them moral, the other legal...
...As Judith Shklar has rightly said: there is a continuum between moral and legal considerations.' The argument that "we should, but we cannot" is based on principles of legal positivism on two counts...
...2 But a particularity of the Nazi crimes that were tried in Nuremberg is that they were committed against many different peoples, so that no existing law could possibly have applied to them...
...The regime was the same, heinous crimes were still committed, and the suffering of the victims was no less than it had been at the height of the terror...
...And it is those who created the initial conditions in which heinous crimes were committed who are the true perpetrators...
...By considering many historical examples, we find out something about our intuitions...
...We conclude: the "heinous crimes" that should be punished for the spirit of historical justice to prevail are those that count as manifestations of evil...
...2 Nicolaus of Cusa, On Learned Ignorance (Minneapolis: the Arthur J. Banning Press, 1981...
...But it is clear that, for historical crimes, there can be no statute of limitations, precisely because they are historical in the sense that we have just defined...
...And it is also wrong to believe that the maxim cannot be evil simply because no evil consequences have flowed from it in certain cases...
...No shooting this time—but moral forgiveness is also excluded...
...Then, for many contingent reasons, social, political, and other, the influence of evil maxims suddenly spreads, mobilizing the worst psychological drives and recruiting to its cause the subtlest intellectual apparatus...
...they can slough off their totalitarian self...
...In enforcing historical justice, we may not consider the pragmatic consequences of our judgment, but we must take into account the moral judgment of future generations...
...These analogous stories should be of a kind with which we have been familiar since primary school...
...2) There should be no prosecution though there is no obstacle to prosecution...
...one should, for example, return a deposit even where the depositor alone was aware of the arrangement and has since died...
...The moral considerations in this position are consequentialist...
...this would not be a consequentialist position...
...But it is political considerations or their own life histories that make people incline to one or another of the combinations...
...But evil is not banal, even if evil persons become banal after the demise of their power base...
...But in our context, where the dilemma of punishing evil arises, evil has fallen from power...
Vol. 41 • January 1994 • No. 1
