Prof: 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.
 
Prof: 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.
Prof: 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...
Prof: 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 Fuhrer'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.
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.
 
Prof: 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."
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.
Prof: 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.
 
Prof: 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.
Prof: 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.
Prof: 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.
 
Prof: 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.
 
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.
 
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?
Prof: 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.
 
 
