Justice Jackson at the Nuremburg Trials

From Lesson 51 of the Biblical Framework Series

Charles Clough

What we want to do in concluding is to get into the meaning of values, ethics, and law. What we’re trying to do here is to think about the dilemma of our time. Look at the paragraph on page 64, it begins: “Values, Ethics, and Law,” in those two paragraphs is something that you need to have in the back of your mind if you are sharing the gospel with anybody that is enveloped in the world system. I’m giving you an illustration in these two paragraphs. Try this on your friends. There’s a dilemma here and this is a neat thing to bring up because on a non-Christian basis, there’s no way out of this paradox. In other words, don’t you feel that you are the defending one. In this case, you step into the driver’s seat and it’s now going to be Mr. Unbeliever who’s on the defensive because he hasn’t got a solution to what I’m going to show you here. So let’s look at these two paragraphs.

“No society can exist without a moral authority, a binding code of behavior, or a set of common values. The problem here is what happens if an entire society’s moral authority is immoral. What about “Nazi German, or the future kingdom of the Antichrist? Obviously, we are not interested in any code or common value set. If society were its own moral authority, now look at this sentence. “If society were its own moral authority, then no room would exist for a reformer,” right? What does a reformer do? He challenges the existing values of the society. If society is the source of right and wrong then you’ve eliminated all reform. How do you justify reformation? “By definition, he or she would be immoral because they rebel against the traditional values. Flagrant criminal actions could be justified by appeal to society’s code. A clear instance of…” now here’s the dilemma, watch this paragraph. “A clear instance of this problem occurred in 1945 at the end of World War II. Nazi authorities defended their atrocities by appeal to Third Reich official policies and orders.

At the Nazi war criminal trial at Nuremberg, the American jurists, Supreme Court Judge Robert Jackson, put the matter well.” It’s a neat quote. “‘These men should be tried on this basis: on a higher law, a higher law which rises above the provincial and the transient.’” Here’s Jackson now, he’s on the trial at Nuremberg and they’re trying the Nazi’s and the Nazi defense attorneys are very good. They’re very well trained lawyers, and they simply argue, it’s very simple. We look at Mr. Goebbels here, Goebbels is perfectly vindicated. Look, here’s the order, the Furor put the order out. Mr. Goebbels had to do nothing; all he had to do is follow the order. You can’t convict, this court is no authority to convict Goebbels of any war crimes, he was carrying out orders. Look at the order, there it is, signed. Right there, that’s the authority, so what are you blaming him for, he’s just following an order so you cannot convict him. On the basis of German law, you cannot convict him and that’s when Jackson and the jurists at Nuremberg had a problem. How do they convict the Nazis? They can’t convict on the basis of Nazi rules, can they, because it was the rules that was the problem. So what do you do? Well, what they did in 1945 is so neat from our point of view. They had to retreat away from the idea that society makes law and had to recite to some quote “higher law”, of course where do we get the higher law from? That’s the intriguing one.

So here’s what Jackson says, they have to be tried “on a higher law” left to your imagination where it comes from, “which rises above the provincial and the transient,” the provincial meaning a narrow country German, England, France, that being provincial, or in the transient, meaning it was just from 1933-1945, for 12 years we had this bizarre German culture and he said we got to get away from the provincial and the transient. “To counter the Nazi legal defense, the world community had to use an appeal to “a higher law” that stood over the lower law of Nazi policy. In other words, to successfully prosecute Nazi authorities, the world had to acknowledge that laws of any society are ‘provincial’ and ‘transient’”. See what they did. It’s the only way they could convict the Nazis. Think of the problem today in Europe. If you were a lawyer protecting the Serbs, very easy to do, sure we wiped out the Bosnians, but that was the order, the order came down, order number 5-6-1, there it is, see, published it. I’m the commander, I salute and say, yes sir, carry out the order, no problem. What are you convicting me for? You can’t convict me, I didn’t break any law. There it is. I got the law right here, so how are you going to convict me. This is the central issue and it’s such a great illustration. You always want to remember the 1945 incident.