Nuremberg thoughts
From Cyberlaw
- i was thinking about hannah arendt's 'eichmann in jerusalem', and about the banality of evil, which chalabi also mentions. maybe the point of a highly recorded and publicized (how publicized was it at the time?) war crime trial of high-ranking nazis is in part to de-mystify them. perhaps subjecting them to the banality of the legal process deflates their power and importance. they certainly looked unimportant, sitting (some seemed asleep!) in that box during the trial. maybe putting the nazis on trial is a way of re-narrating the events - creating them again within the structure of a legal process. so world war II is a little like the car crash, or the disappearing quarter, and since it's over we have to recreate the events in the courtroom. i have more questions about your point about the truth not mattering to anyone other than the immediate participants, professor nesson, but i'll leave those until i find out more about how this thing works.
- i really like that re-narration idea. reminds me of simulacra and simulation: Baudrillard; also see Wikipedia on Baudrillard
- I would also add that the Nazis left behind A LOT of... pardon the pun... EVIDENCE. If any of you have ever read Alan Shirer's "The Rise and Fall of the Third Reich" you will realize that there really was a ton of documentation. Eventhough they tried to destroy much of it in the final days, Mr. Shirer was still able to gain access to a whole vault of catalogued information.
- I think there is ambiguity in the precise "purpose" of trial. "Dispute resolution" can hold a range of meanings. At one end of the spectrum, I picture a thinner, colder idea: a decision must be made; there must be a winner and a loser; and, ideally, the resolution will, on average, produce a message that structures behavior in a desirable way. At the other end, is a fuller conception, which entails both sides finding some sort of "peace" with the outcome or some restoration of the social order. This might mean that the "victim" is made whole and the "responsible" party demonstrates some repentance. The difference between these two poles is displayed in the Jamaica example: the need for "restorative justice," the need for cessation of enmity, brings us from the former to the latter. The former view maps nicely onto the contemporary academy's dominant view of tort � the Coasian idea that we should be agnostic towards placing "blame," that both parties contribute to risk. But when we look at criminal trials, a field in which we add a moral layer, this model becomes inadequate; and this inadequacy is amplified when we look at something like genocide. Most (all?) of us would consider application of cost-benefit analysis to the Holocaust to be beyond the pale. (Interestingly, Adorno and Horkheimer attribute the rise of totalitarianism to the rise of "instrumental thought" � and what is more instrumental than law and economics?). All this goes to say that what we consider to be the precise purpose of the trial will change from situation to situation, along with society's background norms, and the differing moral significance we attribute to different events.
- What is the basis for your implication that it is not instrumentalist to use the courts to achieve restorative justice, cessation of enmity, etc.? I believe you are applying cost-benefit analysis to the Holocaust: you merely expanded the applicable realm of costs and benefits.
- One more unrelated thought. Sometimes the relative costs and benefits of various options balance out. In cases such as this one in which, as you point out, there are large numbers of costs and benefits to consider, we may come to an intellectual tragedy of sorts. The most fascinating problems are the least important--they're fascinating because their potential solutions are on par with one another. Unfortunately, we end up wasting large amounts of time and resources on these problems.--Anonymousdork 15:54, 5 January 2006 (EST)
