A Lesson from the Nuremberg Trials and Today’s Morality Problem
We’re beginning to hear from Hollywood insiders that Hollywood “has no moral authority.” It’s not just Hollywood. By what standard is morality determined today? How many times have we heard, “You can’t impose your morality on me”? In what way is it morally right for women to impose their view of sexual morality on Harvey Weinstein? The usual answer is, “I didn’t consent to it.” By what standard can a moral imperative be found for any act in a world where God is dismissed and we human “animals” are nothing but highly evolved biological meat machines?
The question has a long history.
After the defeat of Hitler’s Third Reich, war crime tribunals were set up in Nuremberg. The purpose, of course, was to judge those who had participated in the grossest of atrocities, the planned extermination of the Jewish race. John Warwick Montgomery explains the problem the tribunal faced:
When the Charter of the Tribunal, which had been drawn up by the victors, was used by the prosecution, the defendants very logically complained that they were being tried by ex post facto laws; and some authorities in the field of international law have severely criticized the allied judges on the same ground. The most telling defense offered by the accused was that they had simply followed orders or made decisions within the framework of their own legal system, in complete consistency with it, and that they therefore could not rightly be condemned because they deviated from the alien value system of their conquerors. Faced with this argument, Robert H. Jackson, Chief Counsel for the United States at the Trials, was compelled to appeal to permanent values, to moral standards transcending the life-styles of particular societies—in a word, to a “law beyond the law” of individual nations, whether victor or vanquished.1
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How did the Tribunal account for this “law beyond the law”? What justification was given for it being imposed ex post facto? The Tribunal could not appeal to the Bible. Revealed religion had been discounted decades before. Higher Criticism, which had its start in Germany, had effectively destroyed the Bible for so many as a reliable standard for history and law. What about natural law? Sir William Blackstone (1723-1780), whose Commentaries on the Laws of England served as the primary foundation of law from the time of the War for Independence to the time of the war between the states, developed a natural law theory based on the doctrine of creation:
Thus when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.
* * * * *
This law of nature, being co-eval [at the same time] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are in validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
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Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered [permitted] to contradict these. ((William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago, IL: The University of Chicago Press, [1765–1769] 1979), 1:38, 41, 42.))
But with the publication and adoption of Charles Darwin’s On the Origin of Species in 1859 by the scientific and legal professions, Blackstone’s legal worldview was considered to be quaint, outdated, and hopelessly tied to religion. Darwinism made natural law a logical impossibility. How could an immaterial law be derived from a purely material cosmos that had come into existence by chance?
“Charles Darwin destroyed natural law theory in biological science. . . . His successors destroyed natural law theory in social science. In the 1920’s, quantum physics destroyed natural law theory in the subatomic world. This immediately began to undermine modern legal theory.” ((Gary North, Political Polytheism (Tyler, TX: Institute for Christian Economics, 1989), xxii.))
The shattered foundation of natural law theory, like Humpty Dumpty, can never be put together again as long as evolution remains our national religion. At the moment, natural law theory is dead given materialist assumptions that are firmly rooted in every major secular university and law school in the country.
Natural Law on Trial
Does anyone remember how the Senate Judiciary Committee attacked Clarence Thomas for believing that the Constitution had to be interpreted in the light of “natural law”? The Constitution contains little moral prescription. There is no discussion, for example, of what constitutes murder or theft in the body of the Constitution. The Constitution implements whatever moral precepts are generally held by the populace. For example, slavery was practiced in the colonies, and there is no freedom outlined that would give a woman a right to kill her preborn baby. The Roe v. Wade decision of 1973 claimed to have found the freedom of abortion in the “penumbra” of the Constitution, an unspecified set of “implied rights.”
The framers did not perceive that there was a need to acknowledge a fixed body of law since natural law — “the laws of nature and of nature’s God” — was almost universally accepted. This is why Clarence Thomas could write: “We look at the Natural Law beliefs of the founders as a background to our Constitution.” ((“Thomas Spars With Committee over Natural Law and Abortion,” Congressional Quarterly Weekly Review, 49:38 (September 21, 1991), 2644.)) The left-leaning members of the committee took exception to Thomas’s natural law beliefs. Joseph Biden wrote an article that appeared in the Washington Post ((Joseph R. Biden, Jr., “Law and Natural Law: Questions for Judge Thomas,” The Washington Post (September 8, 1991), C-1.)) in which he claimed the following for his version of natural law:
- It does not “function as being a specific moral code regulating individual behavior.”
- It is not “a static set of unchanging principles.”
- It is “an evolving body of ideals.”
Basically, natural law is whatever the courts say it is. “In our system,” Biden writes, “the sole obligation of a Supreme Court justice is to the Constitution. Natural justice can supply one of the important means of understanding the Constitution, but natural law can never be used to reach a decision contrary to a fair reading of the Constitution itself.” This is why the Left wants to be the gatekeepers to the Supreme Court by mandating a liberal litmus test to all prospective judges. Biden’s article does not tell us anything about how we determine what’s right or wrong. Morality is a matter of “individual choice.” What happens when two individual choices are in conflict? That’s why we need judges. Who gets to pick the judges?
Biden’s concept of “good natural law” as opposed to “bad natural law” does not establish a set of “timeless truths” but rather an evolving body of ideals that changes to permit governments to adjust to new social situations. How convenient. “In short,” as Phillip E. Johnson notes, Biden’s view of “good natural law doesn’t prevent us from doing anything we really want to do.” ((Phillip E. Johnson, “The Modernist Impasse in Law,” God and Culture: Essays in Honor of Carl F. H. Henry, D.A. Carson and John D. Woodbridge, eds. (Grand Rapids, MI: Eerdmans, 1993), 181.)) Biden never explains how he derived the content of this good natural law or how to account for any law at all given Darwinian assumptions taught in our schools and mandated by our courts. Of course, even though natural law theory has its problems, it does recognize the existence of a higher law. Ultimately, however, natural law, in order to remain stable, must presuppose the foundation of biblical law. ((Gary DeMar, “The Mating of Biblical Law and Natural Law,” Biblical Worldview Magazine (June 1990).))
Some people understood the dilemma of how to account for moral absolutes in a society that officially discounts God. Yale law professor Arthur Leff was perplexed that an agnostic culture even wants enduring values. In a lecture delivered at Duke University in 1979, Leff expressed his bewilderment:
I want to believe—and so do you—in a complete, transcendent and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe—and so do you—in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individual and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it. ((Johnson, “The Modernist Impasse in Law,” 182.))
How can a solution ever be found in a random, impersonal cosmos, “governed” (if the word can be used) by chance given Leff’s logic? “[W]ith God out of the picture,” Johnson writes, “every human being becomes a ‘godlet’—with as much authority to set standards as any other godlet or combination of godlets.” ((Johnson, “The Modernist Impasse in Law,” 182.)) Any person who utters a moral injunction is most often met with, “Who says? Who are you to impose your morality on me?” Leff continues his logical analysis of the dilemma:
Putting it that way makes clear that if we are looking for an evaluation, we must actually be looking for an evaluator: some machine for the generation of judgments on states of affairs. If the evaluation is to be beyond question, then the evaluator and its evaluative processes must be similarly insulated. If it is to fulfil its role, the evaluator must be the unjudged judge, the unruled legislator, the premise maker who rests on no premises, the uncreated creator of values. . . . We are never going to get anywhere (assuming for the moment that there is somewhere to get) in ethical or legal theory unless we finally face the fact that, in the Psalmist’s words, there is no one like unto the Lord. . . . The so-called death of God turns out not to have been His funeral; it also seems to have effected the total elimination of any coherent, or even more-than-momentarily convincing, ethical or legal system dependant upon final authoritative, extrasystemic premises. ((Leff, “Unspeakable Ethics, Unnatural Law.” Quoted in Johnson, “The Modernist Impasse in Law,” 183.))
So what is the secularist’s answer? How does the modernist create a moral center in the Darwinian struggle for life? The usual answer is that “doing good” is what benefits the species. Being kind, for example, has a good result. But is this always true? The claim is made “that a variety of widely accepted norms, including the keeping of certain promises, the abhorrence of unjustified killing of human beings, and perhaps even the sanctity of property rights, promote the adaptation of the human species to its environment. But so does genocide.”2 All the “great” tyrants claimed that what they did was for the betterment of mankind. To Hitler, Jews were a world problem. Mass sterilization was first considered, then more efficient and quicker methods were proposed and carried out to rid the world of the “Jewish problem.” But in the end, it was all done for a “righteous” cause.3 The Birth Control League founder Margaret Sanger with her eugenic ideas wanted “to create a race of thoroughbreds” by encouraging births of “more children from the fit, and less from the unfit.”4 She purposely set up birth control clinics in poor immigrant neighborhoods to rid the world of “mongrel races.” Who’s to say, given the presuppositions of today’s Darwinian legal theorists, that any of it was wrong?
While Leff did a masterful job in pointing out the problem, and he evaluated numerous theories in finding a way out of the dilemma created by his “own kind,” he offered no solution. Even so, people will continue to maintain, at least for the moment, that napalming babies is bad, starving the poor is wicked, slavery is evil, war is hell, but there will always be one lingering question, “Says who?”
Modern legal theory which denies the sovereignty of God over the nations also denies the sovereignty of God over the individual and everything else. When pushed on the point, there is no way to account for anything given Darwinian assumptions, not even reason or logic, the supposed saviors of the rationalist worldview. Christians must face the steamroller effect of this set of assumptions. Laws are being put on the books that when fully implemented and applied will disenfranchise Christians to such an extent that they will not be able to speak the name of Jesus.
- John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Dimension Books/Bethany Fellowship, 1975), 24–25. [↩]
- Richard Posner, The Problems of Jurisprudence (Boston: Harvard University Press, 1990), 235-236. Quoted in Johnson, “The Modernist Impasse in Law,” 184. [↩]
- For a chilling reenactment of the plan, see the HBO Film Conspiracy: The Meeting at Wannsee, starring Stanley Tucci, Colin Firth, and David Threlfall. The two-hour meeting on January 20, 1942, essentially sealed the fate of Jews in Europe. The approach taken by the thirty German bureaucrats was medicinal, a straightforward outline on how to solve the Jewish problem without ever using the words “kill” or “exterminate.” The law as it existed in Germany at the time was followed, giving them proper legal cover and justification for their actions. The date of the meeting nearly coincides with the Roe v. Wade decision of 1973 (January 22) which has had a more ominous effect. Safe to say that more than six million Jewish babies have been killed legally through abortion since 1973. [↩]
- Margaret Sanger, The Pivot of Civilization (New York: Brentano’s, 1922), 126. Quoted in George Grant, Killer Angel: A Short Biography of Planned Parenthood’s Founder, Margaret Sanger, rev. ed. (Nashville, TN: Cumberland House Publishing,  2001), 85. [↩]