PLSC 118 - Lecture 2 - Introductory Lecture

Chapter 1. Who Was Adolf Eichmann? [00:00:00]

Professor Ian Shapiro: Okay, so let’s begin. I asked you to bear two questions in mind in reading the Eichmann, and I’m going to get to those in a minute. But before we get to that, who was Adolf Eichmann? Who was Adolf Eichmann?

Student: He was the expert on Jewish immigration and relocation.

Professor Ian Shapiro: But what was his job? What was he there to do?

Student: Well, 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.

Professor Ian Shapiro: Correct. What else was he supposed to do? Why don’t you give somebody else a chance? That was certainly part of what he was doing. What else was he supposed to do? Was he somebody who was involved in designing the final solution, as it was called in the Third Reich? Was he a policy maker? People are shaking their heads. No he wasn’t. He was basically an implementer, right? 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.

Okay, what kind of a person was he? What do you think motivated him? When you read this what kind of a person, what stood out about him? Anybody?

Student: It seems throughout the text that he was driven by this idea of self-advancement, the need for…

Professor Ian Shapiro: He wanted to get ahead.

Student:Yeah.

Professor Ian Shapiro: He wanted to impress his superiors.

Student: Yeah, first and foremost, I believe.

Professor Ian Shapiro: He wanted to get an A, right, pretty much? That’s one thing that strikes you about him, yeah. What else struck you about him?

Student: The thoughtlessness that he demonstrated throughout the campaign.

Professor Ian Shapiro: The what? Sorry.

Student: The thoughtlessness.

Professor Ian Shapiro: Thoughtlessness.

Student: Just kind of the blind obedience to the Führer’s word.

Professor Ian Shapiro: He was not a reflective man.

Student: Not at all.

Professor Ian Shapiro: He’s not somebody who would question authority, right? Did you get the impression he hated Jews?

Student: No.

Professor Ian Shapiro: No. What makes you say that?

Student: I mean, well first 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.

Professor Ian Shapiro: I think you’ve got him exactly right. 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, right? And I think this brings us to the first question.

Chapter 2. Analyzing Eichmann’s Actions [00:05:44]

What is it that makes you uncomfortable about this man? One of the things I asked you to think about, what makes you uncomfortable about Eichmann? Yeah?

Student: The fact that he was just basically not thinking about what he was doing, so someone else had total control of what he was going to do.

Professor Ian Shapiro: So his un-reflectiveness is what makes you uncomfortable.

Student: Right, because that means really anyone can be like that. It kind of makes you reflect on yourself and just on human nature.

Professor Ian Shapiro: Okay, so you feel he should have been questioning the authorities that were giving him the orders to do this?

Student: Yeah, that’d be nice.

Professor Ian Shapiro: Okay, that’s definitely one thing that makes people uncomfortable. What else? Anybody else? Yeah?

Student: It was just that his un-reflectiveness transferred to the fact that — well, he wanted to do his job well, but the fact was that he wasn’t just transporting munitions. These were people’s lives, supposedly people he easily could have been friends with.

Professor Ian Shapiro: Right, he wasn’t thinking about the larger purpose. So it’s connected to the un-reflectiveness, although we’ll see that one of the themes in this course that political theorists write about 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, but it makes us uncomfortable.

What else makes you uncomfortable about this man? What makes your skin crawl when you think about him? Anything else? Yeah? Get the microphone.

Student: He was gloating. Like when he was in Argentina and he was doing his interviews he was gloating about the million of people that had died because of him because of his work.

Professor Ian Shapiro: He was pleased that he had done a good job.

Student: Yeah.

Professor Ian Shapiro: It wasn’t as if he was doing this with any sense of reluctance, right? 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. Anything else that makes you uncomfortable about him? Yeah?

Student: He brings up the term idealist and he sort of attaches a sense of honor and loyalty to the Third Reich that we find uncomfortable because of what it’s trying to accomplish.

Professor Ian Shapiro: Loyalty to his superiors.

Student: Right.

Professor Ian Shapiro: That he thought it was important to obey his superiors. Okay, somebody over there was going to say something. Yeah, over there.

Student: Well, it’s not something specific about his actions, but I’m uncomfortable with the fact that when he is considered normal by all the tests, and too, when he was wasn’t thinking at all he actually thought he was thinking and he fooled a lot of people into thinking that he’s smart and competent. So it makes me wonder if that stupidity is just something within all of us.

Professor Ian Shapiro: Yeah, I think that’s right as well. 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, right, 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, right? 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.”

Chapter 3. Analyzing Eichmann’s Apprehension, Trial and Execution [00:11:30]

Okay, let’s now just put Eichmann to one side for a minute and think about the second question I asked you to reflect upon while reading this. What two things make you most uncomfortable about the events surrounding Eichmann’s apprehension, trial and execution? First of all, why did Israel do what it did? Why do you think they went and kidnapped him? I mean, 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 didn’t they do that? Why did they do what they did? Anybody even know or what to take a guess? Why did they do that? Does anyone want to try that? Yeah?

Student: Well, it seems to imply that they might have been concerned or might have suspected that other countries wouldn’t be sympathetic to their wish to try Eichmann. They might have worried that he’d garnered a certain amount of international support or defense in the country he was living in.

Professor Ian Shapiro: I think that’s right. 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. Pretty much that’s why they did it. Okay, so given that that’s why they did it, what if anything makes you uncomfortable about what they did? Over here we need a mic, yeah.

Student: In one of the last two chapters, I believe, they’re discussing the reasons for judgment against him on all the counts, and one of them she’s discussing the four main points that they attempt to prove through the prosecution. And in some of them they discuss the term in dubio contra reum, which is, I guess, when in doubt act against the defendant. And that was kind of just when we don’t have necessarily all the evidence because a lot of it is speculative, we will act in a way that will…

Professor Ian Shapiro: Okay, so there was not a lot of attention to the rules of evidence.

Student: Yeah.

Professor Ian Shapiro: Right? Okay, so that’s one thing. There were a lot of what we would think of as procedural irregularities in this trial. Yeah?

Student: I was uncomfortable with the speed of the execution. It happened extremely soon after his appeal and plea for mercy; within a couple of hours.

Professor Ian Shapiro: Right, it was the way executions are done in China today, not the way executions are done in the United States today, right? It was very rapid. And why were you uncomfortable with that?

Student: I think 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.

Professor Ian Shapiro: Okay, anything else make anybody uncomfortable about what was done? Over here, yeah?

Student: It mentioned in the beginning how showy the trial was, and one part that I thought really stuck with me was when the author mentioned that Israel’s laws itself prohibited Jewish…

Professor Ian Shapiro: Israel what, sorry?

Student: Israeli law prohibited Jewish and non-Jewish marriage, so how the two societies, although one is certainly worse than the other, I think, on a moral level there’s still no perfect society, and that really was kind of disturbing, I think.

Professor Ian Shapiro: So it was something of a show trial.

Student: Yeah.

Professor Ian Shapiro: 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. Anything else make anybody uncomfortable? Yeah, over here.

Student: 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.

Professor Ian Shapiro: Okay, so the outcome was never in doubt.

Student: Uh-huh.

Professor Ian Shapiro: Okay, and that makes you nervous because? Hang on.

Student: Because, well, his case is pretty black and white, but that’s just setting a precedent for the future. And if in a case where he’s so clearly guilty you can’t use real evidence, and you can’t actually go through the steps, the meaningful steps of a trial to find him guilty, then it seems like in the future other trials where it’s not so black and white may be made more into show trials as well. Like he could clearly have been found guilty in a meaningful way with real evidence and they just kind of didn’t try to do that.

Professor Ian Shapiro: Okay, anything else make anyone uncomfortable? Yeah, over here.

Student: Also the lack of evidence that was eligible for procurement on the side of the defense and the lack of defense support really stuck out to me.

Professor Ian Shapiro: 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 were a lot of what, you know, when you all go off to the law school and you learn criminal procedure a few years from now, 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. So there were procedural problems in the trial, what else? Over there, yeah?

Student: It makes me uncomfortable that Israel was even claiming jurisdiction in the case considering the crime did not happen on Israeli soil and that they literally had to send their secret service to kidnap him to bring him to Israeli soil.

Professor Ian Shapiro: Okay, so you are troubled that they thought they had jurisdiction in this matter.

Student: Right.

Professor Ian Shapiro: Because the crime didn’t happen on Israeli soil. Any other reason why one might be troubled that they claimed jurisdiction?

Student: It felt like it was the country kind of speaking for a people or speaking for humanity in a way that was just unsettling to me.

Professor Ian Shapiro: Okay, that 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, you might say. Who appointed them to do that? I think there’s a lot of truth to what you say there, but there are a number of other aspects to it as well. Why else might we be troubled that they thought they had jurisdiction to do this? What does jurisdiction mean anyway? What is jurisdiction? Yeah?

Student: I think it’s equally troubling that they thought that they had to do this. I mean, they talked a lot about the way that former Nazis are being tried in Germany and how lenient their punishments were. I think that that is kind of the need of the German people to kind of, I don’t know, kind of like, twist history in that way to kind of take blame away from these people who obviously did a lot of things wrong. In a way force Israel to have to kind of take this very like drastic sort of extra legal action.

Professor Ian Shapiro: Okay, but so I think you all make a number of valid points, but somebody would say, a devil’s advocate would say, “Well, look, nobody’s seriously alleging that he was incorrectly convicted. Nobody’s seriously alleging that he didn’t do this.” We’ve already said by assumption that they were working on the premise that if they didn’t prosecute him it wasn’t going to happen at all. So what’s there to be that troubled about? Is there a counter argument to that? Yeah, over there.

Student: Next time it might not be so clear. Another country might use this as a precedent for themselves.

Professor Ian Shapiro: Okay, so there’s a precedent issue, and what are the precedent’s we’re worried about?

Student: The precedent of claiming jurisdiction over any number of crimes that occur elsewhere, the precedent of basically kidnapping in order to have a legal system, the precedent of show trials for serious crimes.

Professor Ian Shapiro: And it’s potentially a huge issue. I don’t know if you noticed Israeli politician Livni canceled a trip to Britain a few weeks ago because they discovered that some prosecutor in Britain was going to have her arrested for war crimes in Gaza. She had been foreign minister during the Gaza invasion a year ago. And the British government was very embarrassed and they were trying to fix it so that that couldn’t be done again. But Pinochet couldn’t travel to many places because he was eventually going to be arrested. There are some countries in which there are conversations about whether they might try and arrest Donald Rumsfeld if he travels to them for what went on at Abu Ghraib. So if countries start setting themselves up and saying we have the right to prosecute war criminals, how is it going to be regulated? Who are they going to be answerable to? It might look okay in this case because nobody seriously contends that Eichmann didn’t do these things or that they were justifiable, but there’s this precedent setting issue that you have to worry about.

Anything else? Anything I haven’t mentioned that you might find troubling? I mean, might somebody not say, “Look, it’s not just that it wasn’t on Israeli soil, this guy’s being prosecuted by a legal system which didn’t even exist when he committed his crimes, and furthermore he was obeying a legal system that did exist,” right? He was in Germany in the 1940s obeying the laws of the Third Reich. He wasn’t breaking any laws then, and now he’s being tried in a legal system in a country that didn’t even exist then for violating other laws. Isn’t this just victor’s justice? So what do we say about that? Did they do the wrong thing? A lot of people, I think, would grant much of what’s been said here and still be troubled by the notion that they shouldn’t have done it because he would never have been brought to justice.

Chapter 4. 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? Anybody want to pick up that? What do you think?

Student: So I do think it’s a contradiction and very worth examining, but one sort of interesting aspect of it is just that I think part of what we object to about the trial is that it claimed to be following a certain legal order, and that it sort of associated this working outside the system with a system.

Professor Ian Shapiro: So what is that legal order?

Student: With the Israeli legal system, I mean, with the judicial court system of the nation of Israel.

Professor Ian Shapiro: I take your point, but it’s not very plausible. It’s not the best defense because after all, as has come up in this conversation, even by the standards of existing Israeli law was not a great conducted trial.

Student: Right, but what I’m saying is that this trial, which clearly broke a lot of what we would consider the good standards for trial sort of tainted somehow the idea of the Israeli judicial system. I’m not saying this would have been better, but some of our objections wouldn’t necessarily apply if it had been really obviously, just like a political assassination, because they didn’t know what else to do with him. I mean, not that that would be acceptable either necessarily, but just the relation of this to the courts gets in there somehow too.

Professor Ian Shapiro: Okay, so that might speak to part of it, but anything else about this tension between on the one hand we’re worried that Eichmann abdicated his moral autonomy and responsibility. On the other hand we’re uncomfortable that they asserted theirs. Yeah?

Student: Well, I’m not really quite sure the tension completely exists if we’re to assume that one system of government or one system of laws is, like, legitimate and valid like the Israeli trial system. Like having a system that lets you have appeals, that doesn’t kidnap people illegally versus a system that kills millions of people who are innocent of doing anything wrong, and kills them simply for who they are. So in Eichmann’s case it seems to me that it is legitimate to challenge him, to challenge the system, and to be shocked or disappointed when he doesn’t and just goes along with it. On the other hand, to bring someone like that to justice it is a bit troubling that when you have a system that does work, or that we widely believe to be a judicial system that does work and is sort of widely accepted to be a good system, setting a precedent there could be potentially a bad thing. I’m not quite sure there’s a tension if in one case, challenging the system is good, and in the other maybe challenging the system has more of a gray area of issues.

Professor Ian Shapiro: Well, I think you’ve hit the nail on the head. 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. So I think you’re exactly right when you point out that this is not a real tension. 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.

Chapter 5. 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? And that is the question that we’re going to organize our discussion around in the coming weeks and months. 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, who we’ll start talking about on Friday, says 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 set of answers, 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. We have a couple of minutes for questions if anyone would like to… Yeah, mic over here.

Student: What about the notion that might makes right and that the most powerful stays the most legitimate?

Professor Ian Shapiro: Okay, he says, “What about the notion that might makes right and it’s the most powerful states that get to dictate what legitimacy is?” I mean, you could say that. After all, if you think about the example we’ve been considering today. At the end of the Second World War we had the Nuremberg Trials run by an American Supreme Court justice. They went to Germany. They did a lot of what Israel did in 1960, actually. They tried these Germans by laws that hadn’t existed at the time for obeying the laws that had existed at the time. Many of them were executed. Many of them were in prison. You could say this is just might makes right. If somebody else had won the war there would have been a different outcome.

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. Anyone want to take a crack at what legal positivism means? Anybody know? No reason you should know. 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, right? And we’re going to talk a lot more about natural law later.

Well, legal positivism was the doctrine that there’s no such thing as natural law. Jeremy Bentham, who we’re going to start talking about on Friday, 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, well, 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.

Now, what we’re going to do, I realize now I misspoke when I said we were going to talk about Bentham on Friday, didn’t I? Why didn’t some astute person say, “No, you’re not.” We’re actually going to talk about Locke. Now, you might say, “Well, why are you going to talk about Locke?” And the answer is that 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, right?  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, and we will not actually get to utilitarianism until next Wednesday.

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.

So some of what you read for Friday will go by you. Don’t worry about it because we’re going to revisit Locke again, and again, and again as we go though the course. Okay, so we will see you on Friday and then that’s when we’ll begin talking about John Locke.

[end of transcript]

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