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PDF FormatOn October 1, 1946, an Allied court sentenced to death by hanging the men who until a few months earlier had operated the machinery of the German state and its public culture, including the foreign minister of Germany, the minister of the interior, and the minister of the Eastern Territories; the German chief of staff, the chief of operations of the armed forces, the head of the security services, and the commander of the air force; as well as the governor of Austria, the president of the Academy of German Law, and the publisher of the weekly newspaper Der Stürmer. None of them had been accused of violating the laws of Germany. They had been accused of obeying them. And it was for committing this crime—the crime of obeying the laws of Germany—that they were convicted and subsequently executed.
From the outset, when the International Tribunal for the Trial of German War Criminals was commissioned, it was evident that the law of the German state could not serve as a basis to try the German leadership for their crimes, since it had been these very same men who had composed the laws in order to legitimate their acts. The “international law,” as it stood in various treaties signed by Germany, would likewise fail to speak unequivocally on many of the issues before the court. For these reasons, the charter which established the Tribunal empowered it to try and punish individuals for violating various “laws” not necessarily to be found on the books of the German state at all: The ministers and generals were to be tried for committing (i) “crimes against peace,” defined not only as “war in violation of international treaties” but also, more generally, as any “war of aggression”1 ; for (ii) war crimes, defined not as violations only of the laws of war, but also of an unspecified body of “customs of war”; and for (iii) “crimes against humanity,” defined as “murder, extermination, enslavement, deportation and other inhuman acts,” but also including “persecutions ... in execution of or in connection with” any of these, “whether or not in violation of the domestic law of the country where perpetrated.”2 Acting on this mandate, the court incorporated into its rulings such considerations as “rules ... recognized by all civilized nations,” “customs and practices of states,” “the general principles of justice,” and even “the elementary dictates of humanity”—all in order to establish that obedience to unjust law could “never” be required of government agents, and that a servant of the German regime “cannot now shield himself behind a mythical requirement of soldierly obedience at all costs as his excuse....” Indeed, the “essence” of the court’s finding, as declared by the judges themselves in their ruling, was “that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.”3
The recognition that it is not the dictates of the state but “the general principles of justice” and “the elementary dictates of humanity” which ultimately govern the innocence or guilt of men represents the highest political teaching of Western civilization; just as the rejection of this teaching and the promulgation of its opposite—the belief that the laws and commands of the state are the ultimate arbiters of human innocence and guilt—represents the highest teaching of the corporatist ideal which was Nazism. Thus while the material World War II was fought in fire and blood on the beaches of Normandy and in the forests of the Ardennes, these titanic struggles were in an important sense only the physical expression of the war of ideas which ended only at Nuremberg—the death-struggle between the two most fundamental of human political teachings, that of obedience to the state, and that of obedience to right.4
That an Allied court would base its decision on an unequivocal choice of right over the dictates of the state is hardly surprising. The idea of the predominance of right had long been simmering in Western political thought, and especially that of the United States, which had been born of disobedience to British tax laws, and whose Civil War had been nothing short of a war against its own written constitution, which had protected the “right” to hold slaves. But it was only after the horrors of World War II and the Nuremberg judgment that the implicit assumption of Western democratic theory came to be understood as its cornerstone: If the citizens of a free society were not prepared to protect their freedoms against the evils which are always possible even under democratic government—Hitler himself had, after all, come to power through the democratic processes of Weimar—then the enterprise would sooner or later come to ruin just as Germany had. And it was in this way that the lessons of Nuremberg eventually found expression in a national holiday in the United States honoring the civil disobedience leader Martin Luther King, Jr., whose explicit message is the endorsement of resistance to unjust state law; in the reading of Henry David Thoreau’s “Civil Disobedience” in schools as one of the enduring achievements of America’s national literature; and in the use in the schools and popular media of the expression “I was just obeying orders”—the claim of the defendants at the Nuremberg trials—as the epitome of moral abdication. Indeed, these cultural artifacts and others like them amount to no less than a policy of the American state and its ideological allies, alone among the great powers in history, of officially indoctrinating their children in the belief that the pursuit of right ultimately must take precedence over obedience to law—even if it is their own law.5
Yet if one asks where this teaching came from, and how it was that the Western nations came to teach their children that right must take precedence over blind obligation to obey the state, then one is confronted by a hidden irony, which, given the fate of the Jews of Europe at the hands of the German regime, takes on no small measure of bitterness. For while the disobedience teaching of the West is well-known, virtually forgotten is the fact that this teaching is itself the essential Jewish political teaching, whose appearance in the world and ultimate triumph in the philosophy of the Western democracies is due almost exclusively to the influence on the West of the Hebrew Bible—that is, that it was Jewish political philosophy which was ultimately pitted against that of Germany at Nuremberg, and determined by America and her allies to be the truer idea. (There is a second, more gruesome, irony hidden here as well, since the Jewish origins of the Western disobedience teaching have been obscured, down to our own day, by an academic history of ideas which is built, almost in its entirety, on the historiography of nineteenth-century German academia, which—one is hardly shocked to discover—systematically denied that any significant Western ideas had their origins in ancient Israel, invariably crediting them to Greece instead.6)
What is the Jewish disobedience teaching which has had such a fantastic impact on the ideas of the Western democracies? It is my intention here to review those most fundamental things which many have apparently forgotten: That unqualified obedience to the state is the fundamentally pagan idea, the essential political teaching of the great idolatries of antiquity; that freedom of conscience and disobedience to unjust law are the core of the biblical political teaching, which arose as a rejection of pagan statism; and that the adoption of the Jewish disobedience teaching by the West—and the victory of the biblical principle of obedience to right over the pagan principle of obedience to the state—represents the highest triumph of the Jewish political idea in history, a triumph which allowed the West, the great bearer of this idea before humanity, to defeat the pagan Nazi state, not only militarily, but on the battlefield of ideas as well.
II
The biblical account of the emergence of the Jewish people begins with a refugee problem: The flight of Abraham, the first Jew, from the Mesopotamian metropolis of Ur in the very heart of the civilized world—a flight which ends with his beginning life anew, at the age of seventy-five, as a herder of goats and sheep on a stretch of land along the trade route to Egypt, the undeveloped and culturally irrelevant wilderness of Canaan. What would drive a civilized human being to flee the world of science and technology, culture and art, law and power, which Mesopotamia had been for a millennium—in short, to become a refugee from all that mankind had strained to achieve for so long—in order to carve out a harsh existence in the lawless hills and gorges of Canaan? The narrative itself tells us little about the reasons for Abraham’s escape from the civilization of the Euphrates.7 Yet it is clear from his turbulent stay in Egypt, which likewise results in a hasty retreat, that there is no love lost between the Hebrew patriarch and the great Nile civilization either. It is therefore no sudden distaste for the particular fetishes of Mesopotamian culture, no warrant for his arrest in the hands of the Mesopotamian police, which drives Abraham to break with the world he has known his entire life. Instead, he leaves behind the glory of the world-empires of his day because he believes that in this way he and his descendants, and with them the entire world, “will be blessed”8—a conclusion predicated on the recognition that in Mesopotamia and Egypt nothing resembling the blessing he wished for his children would ever be found. And one need only consider the civilizations which Abraham fled in order to understand that he was right.
