The second account on which the argument based on comparison proved to be defective concerns the practice of the courts of admitting the plea of “superior orders” as important extenuating circumstances, and this practice was mentioned explicitly by the judgment. The judgment cited the case I have mentioned above, that of the massacre of the Arab inhabitants at Kfar Kassem, as proof that Israeli jurisdiction does not clear a defendant of responsibility for the “superior orders” he received. And it is true, the Israeli soldiers were indicted for murder, but “superior orders” constituted so weighty an argument for mitigating circumstances that they were sentenced to relatively short prison terms. To be sure, this case concerned an isolated act, not—as in Eichman's case—an activity extending over years, in which crime followed crime. Still, it was undeniable that he had always acted upon “superior orders,” and if the provisions of ordinary Israeli law had been applied to him, it would have been difficult indeed to impose the maximum penalty upon him. The truth of the matter is that Israeli law, in theory and practice, like the jurisdiction of other countries cannot but admit that the fact of “superior orders,” even when their unlawfulness is “manifest,” can severely disturb the normal working of a man's conscience.
This is only one example among many to demonstrate the inadequacy of the prevailing legal system and of current juridical concepts to deal with the facts of administrative massacres organized by the state apparatus. If we look more closely into the matter we will observe without much difficulty that the judges in all these trials really passed judgment solely on the basis of the monstrous deeds. In other words, they judged freely, as it were, and did not really lean on the standards and legal precedents with which they more or less convincingly sought to justify their decisions. That was already evident in Nuremberg, where the judges on the one hand declared that the “crime against peace” was the gravest of all the crimes they had to deal with, since it included all the other crimes, but on the other hand actually imposed the death penalty only on those defendants who had participated in the new crime of administrative massacre—supposedly a less grave offense than conspiracy against peace. It would indeed be tempting to pursue these and similar inconsistencies in a field so obsessed with consistency as jurisprudence. But of course that cannot be done here.
There remains, however, one fundamental problem, which was implicitly present in all these postwar trials and which must be mentioned here because it touches upon one of the central moral questions of all time, namely upon the nature and function of human judgment. What we have demanded in these trials, where the defendants had committed “legal” crimes, is that human beings be capable of telling right from wrong even when all they have to guide them is their own judgment, which, moreover, happens to be completely at odds with what they must regard as the unanimous opinion of all those around them. And this question is all the more serious as we know that the few who were “arrogant” enough to trust only their own judgment were by no means identical with those persons who continued to abide by old values, or who were guided by a religious belief. Since the whole of respectable society had in one way or another succumbed to Hitler, the moral maxims which determine social behavior and the religious commandments —“Thou shalt not kill!”—which guide conscience had virtually vanished. Those few who were still able to tell right from wrong went really only by their own judgments, and they did so freely; there were no rules to be abided by, under which the particular cases with which they were confronted could be subsumed. They had to decide each instance as it arose, because no rules existed for the unprecedented.
How troubled men of our time are by this question of judgment (or, as is often said, by people who dare “sit in judgment”) has emerged in the controversy over the present book, as well as the in many respects similar controversy over Hochhuth's The Deputy. What has come to light is neither nihilism nor cynicism, as one might have expected, but a quite extraordinary confusion over elementary questions of morality— as if an instinct in such matters were truly the last thing to be taken for granted in our time. The many curious notes that have been struck in the course of these disputes seem particularly revealing. Thus, some American literati have professed their naive belief that temptation and coercion are really the same thing, that no one can be asked to resist temptation. (If someone puts a pistol to your heart and orders you to shoot your best friend, then you simply must shoot him. Or, as it was argued—some years ago in connection with the quiz program scandal in which a university teacher had hoaxed the public—when so much money is at stake, who could possibly resist?) The argument that we cannot judge if we were not present and involved ourselves seems to convince everyone everywhere, although it seems obvious that if it were true, neither the administration of justice nor the writing of history would ever be possible. In contrast to these confusions, the reproach of self-righteousness raised against those who do judge is age-old; but that does not make it any the more valid. Even the judge who condemns a murderer can still say when he goes home: “And there, but for the grace of God, go I.” All German Jews unanimously have condemned the wave of coordination which passed over the German people in 1933 and from one day to the next turned the Jews into pariahs. Is it conceivable that none of them ever asked himself how many of his own group would have done just the same if only they had been allowed to? But is their condemnation today any the less correct for that reason?
The reflection that you yourself might have done wrong under the same circumstances may kindle a spirit of forgiveness, but those who today refer to Christian charity seem strangely confused on this issue too. Thus we can read in the postwar statement of the Evangelische Kirche in Deutschland, the Protestant church, as follows: “We aver that before the God of Mercy we share in the guilt for the outrage committed against the Jews by our own people through omission and silence.”* It seems to me that a Christian is guilty before the God of Mercy if he repays evil with evil, hence that the churches would have sinned against mercy if millions of Jews had been killed as punishment for some evil they committed. But if the churches shared in the guilt for an outrage pure and simple, as they themselves attest, then the matter must still be considered to fall within the purview of the God of Justice.
This slip of the tongue, as it were, is no accident. Justice, but not mercy, is a matter of judgment, and about nothing does public opinion everywhere seem to be in happier agreement than that no one has the right to judge somebody else. What public opinion permits us to judge and even to condemn are trends, or whole groups of people—the larger the better—in short, something so general that distinctions can no longer be made, names no longer be named. Needless to add, this taboo applies doubly when the deeds or words of famous people or men in high position are being questioned. This is currently expressed in high-flown assertions that it is “superficial” to insist on details and to mention individuals, whereas it is the sign of sophistication to speak in generalities according to which all cats are gray and we are all equally guilty. Thus the charge Hochhuth has raised against a single Pope—one man, easily identifiable, with a name of his own—was immediately countered with an indictment of all Christianity. The charge against Christianity in general, with its two thousand years of history, cannot be proved, and if it could be proved, it would be horrible. No one seems to mind this so long as no person is involved, and it is quite safe to go one step further and to maintain: “Undoubtedly there is reason for grave accusations, but the defendant is mankind as a whole.” (Thus Robert Weltsch in Summa Iniuria, quoted above, italics added.)