Auschwitz, Nazis, and the Rule of Law

(image from http://www.historyplace.com/worldwar2/holocaust/h-ausch-lib.htm)

The first weekend trip to Krakow will include a side excursion to the Auschwitz death camp located about 90 minutes outside Krakow.

Think about what it takes to construct and run not just one death camp, but, as the U.S. Holocaust Memorial Museum reports, a system of 20,000 separate camps. Approximately 20 of these were primarily dedicated to the wholesale, industrialized slaughter of Jews, Roms, and other human beings, while the remainder comprised prison camps and slave labor camps.

The question of how human beings could have done this to other human beings has been debated endlessly and goes to the heart of whether human beings are intrinsically good or intrinsically bad. But it seems that the question is asked too often on the individual level -- how could the individuals who were part of this system have continued to participate? Although it is certainly true that an evil regime tended to attract and promote evil people, social experiments such as the Zimbardo Prisoner/Guard Experiment at Stanford in 1971 (see, e.g., Stanford Prison Experiment website ) and Milgram's Obedience Experiments from the early 1960s (see, e.g., Milgram Obedience Experiment article) show that the temptation to abuse of power and cruelty is far more widespread than we'd like to think. The capacity for human cruelty and evil is practically unlimited.

But, this individual level question often misses the role that political, social, and legal inputs played in creating the system. Legally, the Nazis had a fixation on records and legality. Committed to the bureaucracy of death, they were scrupulous in making sure that their actions were backed by the force of law. In many cases, this involved even passing laws after proscriptions and property seizures had been completed in order to render those actions legal post hoc. In the case of the camps and the ghettos, consider the legal infrastructure required at every level of civilian and military society to build, staff, supply, and maintain them.

This raises one of the issues I plan to address in my Rule of Law class. In some "thin" and "formal" conceptions of the Rule of Law, there is no component of justice, equity, morality, or propriety in order for a system to qualify as operating under the Rule of Law. Merely the fact that a society uses law to govern, as opposed to individual fiat or some similar source of authority, is sufficient to qualify as a Rule of Law regime. In contrast, "thick" and "substantive" conceptions of the Rule of Law require the state to adhere to extralegal conceptions of morality and justice in order to operate under the Rule of Law.

The problem of whether the thin or the thick conception more accurately describes what we mean by "the Rule of Law" is more than academic since a major critique of the Nuremburg Trials is that they tried, convicted, and punished Nazis for engaging in acts permitted or even legally required under Nazi law. Does it follow that the Nuremburg Trials abandoned the Rule of Law in favor of some higher notion of justice?