We must distinguish between:
(1) Criminal guilt: Crimes are acts capable of objective proof and violate unequivocal laws. Jurisdiction rests with the court, which in formal proceedings can be relied upon to find the facts and apply the law.
(2) Political guilt: This, involving the deeds of statesmen and of the citizenry of a state, results in my having to bear the consequences of the deeds of the state whose power governs me and under whose order I live. Everybody is co-responsible for the way he is governed. Jurisdiction rests with the power and the will of the victor, in both domestic and foreign politics. Success decides. Political prudence, which takes the more distant consequences into account, and the acknowledgment of norms, which are applied as natural and international law, serves to mitigate arbitrary power.
(3) Moral guilt: I, who cannot act otherwise than as an individual, am morally responsible for all my deeds, including the execution of political and military orders. It is never simply true that “orders are orders.” Rather—as crimes even though ordered (although, depending on the degree of danger, blackmail and terrorism, there may be mitigating circumstances)—so every deed remains subject to moral judgment. Jurisdiction rests with my conscience, and in communication with my friends and intimates who are lovingly concerned about my soul.
(4) Metaphysical guilt: There exists a solidarity among men as human beings that makes each co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge. If I fail to do whatever I can to prevent them, I too am guilty. If I was present at the murder of others without risking my life to prevent it, I feel guilty in a way not adequately conceivable either legally, politically or morally. That I live after such a thing has happened weighs upon me as indelible guilt. As human beings, unless good fortune spares us such situations, we come to a point where we must choose: either to risk our lives unconditionally, without chance of success and therefore to no purpose—or to prefer staying alive, because success is impossible. That somewhere among men the unconditioned prevails—the capacity to live only together or not at all, if crimes are committed against the one or the other, or if physical living requirements have to be shared—therein consists the substance of their being. But that this does not extend to the solidarity of all men, nor to that of fellow-citizens or even of smaller groups, but remains confined to the closest human ties—therein lies this guilt of us all. Jurisdiction rests with God alone.
This differentiation of four concepts of guilt clarifies the meaning of the charges. Political guilt, for example, does mean the liability of all citizens for the consequences of deeds done by their state, but not the criminal and the moral guilt of every single citizen for crimes committed in the name of the state. The judge may decide about crimes and the victor about political liability, but moral guilt can truthfully be discussed only in a loving struggle between men who maintain solidarity among themselves. As for metaphysical guilt, this may perhaps be a subject of revelation in concrete situations or in the work of poets and philosophers, but hardly one for personal communication. Most deeply aware of it are those who have once achieved the unconditioned, and by that very fact have experienced their failure to manifest this unconditioned toward all men. There remains shame for something that is always present, that may be discussed in general terms, if at all, but can never be concretely revealed.
This differentiation of concepts of guilt is to preserve us from the superficiality of talk about guilt that flattens everything out on a single plane, there to assess it with all the crudeness and lack of discrimination of a bad judge. But in the end these distinct concepts are to lead us back to the one source, which cannot be flatly referred to as our guilt.
All these distinctions become erroneous, however, if we fail to keep in mind the close connection between the things distinguished. Every concept of guilt demonstrates (or manifests) realities, the consequences of which appear in the spheres of the other concepts of guilt.
If human beings were able to free themselves from metaphysical guilt, they would be angels, and all the other three concepts of guilt would become immaterial.
Moral failings cause the conditions out of which both crime and political guilt arise. The commission of countless little acts of negligence, of convenient adaptation, of cheap vindication, and the imperceptible promotion of wrong; the participation in the creation of a public atmosphere that spreads confusion and thus makes evil possible—all that has consequences that partly condition the political guilt involved in the situation and the events.
The moral issue also involves a confusion about the importance of power in human communities. The obfuscation of this fundamental fact is guilt, no less than is the false deification of power as the sole deciding factor in events. Every human being is fated to be enmeshed in the power relations he lives by. This is the inevitable guilt of all, the guilt of human existence. It is counteracted by supporting the power that achieves what is right, the rights of man. Failure to collaborate in organizing power relations, in the struggle for power for the sake of serving the right, creates basic political guilt and moral guilt at the same time. Political guilt turns into moral guilt where power serves to destroy the meaning of power—the achievement of what is right, the ethos and purity of one’s own nation. For wherever power does not limit itself, there exists violence and terror, and in the end the destruction of life and soul.
Out of the moral everyday life of most individuals, of the broad masses of people, develops the characteristic political behavior of each age, and with it the political situation. But the individual’s life in turn presupposes a political situation already arisen out of history, made real by the ethos and politics of his ancestors, and made possible by the world situation. There are two schematically opposed possibilities here:
Either the ethos of politics is the principle of a state in which all participate with their consciousness, their knowledge, their opinions, and their wills. This is the life of political liberty as a continuous flow of decay and improvement. It is made possible by the task and the opportunity provided by a responsibility shared by all.
Or else there prevails a situation in which the majority are alienated from politics. State power is not felt to be the individual’s business. He does not feel that he shares a responsibility; he looks on, is politically inactive, works and acts in blind obedience. He has an easy conscience in obeying and an easy conscience about his nonparticipation in the decisions and acts of those in power. He tolerates the political reality as an alien fact; he seeks to turn it cunningly to his personal advantage or lives with it in the blind ardor of self-sacrifice.
This is the difference between political liberty* and political dictatorship, conceived from Herodotus on as the difference between West and East (Greek liberty and Persian despotism). In most cases, it has not been up to the individual to say which will prevail. For good or ill, the individual is born into a situation; he has to take what is tradition and reality. No individual and no group can at one stroke, or even in a single generation, change the conditions by which all of us live.
The consequences of guilt affect real life, whether or not the person affected realizes it, and they affect my self-esteem if I perceive my guilt.
(a) Crime meets with punishment. It requires that the judge acknowledge the guilty man’s free determination of his will—not that the punished acknowledge the justice of his punishment.
(b) There is liability for political guilt, consequently reparation is necessary and further loss or restriction of political power and political rights (on the part of the guilty). If the guilt is part of events decided by war, the consequences for the vanquished may include destruction, deportation, extermination. Or the victor can, if he will, bring the consequences into a form of right, and thus of moderation.
(c) The outgrowth of the moral guilt is insight, which involves penance and renewal. It is an inner development, then also taking effect in the world of reality.
(d) The metaphysical guilt results in a transformation of human self-consciousness before God. Pride is broken. This self-transformation by inner activity may lead to a new source of active life, but one linked with an indelible sense of guilt in that humility which grows modest before God and submerges all its doings in an atmosphere where arrogance becomes impossible.
Force is what decides between men, unless they reach agreement. Any state order serves to control this force so as to preserve it—as law enforcement within, as war without. In quiet times this had been almost forgotten.
Where war establishes the situation of force, the right ends. We Europeans have tried even then to maintain some remnant of it in the rules of international law, which apply in war as in peace and were last expressed in the Hague and Geneva Conventions. The attempt seems to have been vain.
Where force is used, force is aroused. It is up to the victor to decide what shall be done with the vanquished, in line with the rule of vae victis. The vanquished can either die or do and suffer what the victor wants. As a rule he has always preferred to live (here are the roots of the fundamental master-servant relationship as profoundly illustrated by Hegel).
Right is the sublime idea of men who derive their existence from an origin which is secured by force alone, but not determined by force. Wherever men become aware of their humanity and recognize man as man, they grasp human rights and base themselves on a natural law to which both victor and vanquished may appeal.
As soon as the idea of right arises, men may negotiate to find the true right in discussion and methodical procedure.
True, what in case of a complete victory becomes right for the vanquished and between victor and vanquished, has thus far played only a very limited role in events which are decided by acts of political will. These events become the fundament of a positive, factual law which is not justified through right.
Right can only apply to guilt in the sense of crime and in the sense of political liability, not to moral and metaphysical guilt.
But even the punished or liable party can recognize the right. The criminal can feel his punishment as his honor and rehabilitation. The one who is politically liable can admit that the living conditions he must accept now are facts determined by fate.
Mercy is what tempers the effect of undiluted right and of destructive force. The humanity of man senses in it a higher truth than may be found in the unswerving consistency of either right or force.
(a) Notwithstanding the existence of right, mercy works to open a realm of justice freed from flaws. For all human norms are full of flaws and injustice in their consequences.
(b) Notwithstanding the possibility of force, the victor shows mercy. He may be motivated by expedience, because the vanquished can serve him, or by magnanimity, because his sense of power and stature is raised by letting the vanquished live; or he may in conscience submit to the demands of a universally human natural law, by which the vanquished is no more stripped of all rights than is the criminal.
The hail of charges moves us to ask: “Who—whom?” An accusation is meaningful only if it is defined by point of view and object and does not cross these bounds; and it is clear only if it is known who accuses and who is accused.
(a) Let us first be guided by an enumeration of four types of guilt. The accused either hears himself charged from without, by the world, or from within, by his own soul.
From without, the charges are meaningful only in regard to crimes and political guilt. They are raised with the intention of effecting punishment and holding liable. Their validity is legal and political, neither moral nor metaphysical.
From within, the guilty hears himself charged with moral failure and metaphysical weakness—and, if these led to political and criminal acts or omissions, with those as well.
Morally man can condemn only himself, not another—or, if another, then only in the solidarity of charitable struggle. No one can morally judge another. It is only where the other seems to me like myself that the closeness reigns which in free communication can make a common cause of what finally each does in solitude.
The assertion of another’s guilt cannot refer to his conviction, only to certain acts and modes of behavior. While in individual judgment we try to take motives and convictions into consideration, we can truthfully do so only insofar as they can be established by objective indications, i.e., acts and behavior.
(b) The question is in which sense can a group be judged, and in which sense only can an individual. It clearly makes sense to hold all citizens of a country liable for the results of actions taken by their state. Here a group is affected, but the liability is definite and limited, involving neither moral nor metaphysical charges against the individuals. It affects also those who opposed the régime and its actions. Analogously there are liabilities for members in organizations, parties, groups.
For crimes one can punish only an individual, whether he was acting alone or in concert with accomplices, each of whom is called to account according to the extent of complicity which as a minimum need not exceed the mere joining of such company. There are assemblages of gangsters and conspirators which may be branded criminal in their entirety, and in this case mere membership is punishable.
It is nonsensical, however, to charge a whole people with a crime. The criminal is always only an individual.
It is nonsensical, too, to lay moral guilt to a people as a whole. There is no such thing as a national character extending to every single member of a nation. There are, of course, communities of language, customs, habits and descent; but the differences which may exist at the same time are so great that people talking the same language may remain as strange to each other as if they did not belong to the same nation.
Morally one can judge the individual only, never a group. The mentality which considers, characterizes and judges people collectively is very widespread. Such characterizations—as of the Germans, the Russians, the British—never fit generic conceptions under which the individual human beings might be classified, but are type conceptions to which they may more or less correspond. This confusion, of the generic with the typological conception, marks the thinking in collective groups—the Germans, the British, the Norwegians, the Jews, and so forth ad lib.: the Frisians, the Bavarians, men, women, the young, the old. That something fits in with the typological conception must not mislead us to believe that we have covered every individual through such general characterization. For centuries this mentality has fostered hatred among nations and communities. Unfortunately natural to a majority of people, it has been most viciously applied and drilled into the heads with propaganda by the National-Socialists. It was as though there no longer-were human beings, just those collective groups.
There is no such thing as a people as a whole. All lines that we may draw to define it are crossed by facts. Language, nationality, culture, common fate—all this does not coincide but is overlapping. People and state do not coincide, nor do language, common fate and culture.
One cannot make an individual out of a people. A people cannot perish heroically, cannot be a criminal, cannot act morally or immorally; only its individuals can do so. A people as a whole can be neither guilty nor innocent, neither in the criminal nor in the political (in which only the citizenry of a state is liable) nor in the moral sense.
The categorical judgment of a people is always unjust. It presupposes a false substantialization and results in the debasement of the human being as an individual.
A world opinion which condemns a people collectively is of a kind with the fact that for thousands of years men have thought and said, “The Jews are guilty of the Crucifixion.” Who are “the Jews”? A certain group of religious and political zealots whose relative power among the Jews of that time, in cooperation with the Roman occupation authorities, led to the execution of Jesus.
That such an opinion will become a matter of course and overpower even thinking people is so amazing because the error is so simple and evident. One seems to face a blank wall. It is as though no reason, no fact were any longer heard—or, if heard, as though it were instantly and ineffectively forgotten.
Thus there can be no collective guilt of a people or a group within a people—except for political liability. To pronounce a group criminally, morally or metaphysically guilty is an error akin to the laziness and arrogance of average, uncritical thinking.
(c) There must be a right to accuse and indict. Who has the right to judge? Whoever does so, exposes himself to questions about the source of his authority, the end and motive of his judgment, and the situation in which he and the man judged confront each other.
No one needs to acknowledge a worldly tribunal in points of moral and metaphysical guilt. What is possible in close, human relationships which are based on love is not permitted to distantly cold analysis. What is true before God is not, therefore, true before men. For God is represented by no authority on earth—neither in ecclesiastic nor in foreign offices, nor in a world opinion announced by the press.
If judgments are passed in the situation of a decided war, that on political liability is the absolute prerogative of the victor who staked his life on a decision in his favor. But one may ask (to quote from a letter): “Does a neutral have any right to judge in public, having stayed out of the struggle and failed to stake his existence and his conscience on the main cause?”
When the individual’s moral and metaphysical guilt is discussed among people sharing a common fate—today among Germans—one feels the right to judge in the attitude and behavior of him who judges. One feels whether or not he speaks of a guilt weighing also upon himself—whether he speaks from within or from without, self-enlighteningly or accusingly, as an intimate seeking a way to the possible self-enlightenment of others or as a stranger and mere assailant, as friend or as foe. It is always only in the first instance that his right is unquestionable; in the second it is doubtful and in any case limited to the extent of his charity.
When it comes to political liability and criminal guilt, however, everyone has the right among fellow-citizens to discuss facts and their judgment, and to measure them by the yardstick of clear, conceptional definitions. Political liability is graduated according to the degree of participation in the régime—now rejected on principle—and determined by decisions of the victor, to which the very fact of being alive logically forces all to submit who wish to survive the disaster.
Wherever charges are raised, the accused will be allowed a hearing. Wherever right is appealed to, there is a defense. Wherever force is used, the victim will defend himself if he can.
If the utterly vanquished cannot defend himself and wants to stay alive, there is nothing left to him but to accept and bear the consequences.
But where the victor cites reasons and passes judgment, a reply can be made even in impotence—not by any force but by the spirit, if room is given to it. A defense is possible wherever man may speak. As soon as the victor puts his actions on the level of right, he limits his power. The following possibilities are open to this defense:
(1) It can urge differentiation. Differentiation leads to definition and partial exculpation. Differentiation cancels totality and limits the charges.
Confusion leads to haziness, and haziness in turn has real consequences which may be useful or noxious but in any event are unjust. Defense by differentiation promotes justice.
(2) The defense can adduce, stress and compare facts.
(3) The defense can appeal to natural law, to human rights, to interntional law. Such a defense is subject to restrictions:
(a) A state which has violated natural law and human rights on principle—at home from the start, and later, in war, destroying human rights and international law abroad—has no claim to recognition, in its favor, of what it refused to recognize itself.
(b) Right, in fact, is with him who has the power to fight for it. In total impotence, the sole remaining possibility is a spiritual appeal to the ideal right.
(c) The recognition of natural law and human rights is due only to the free will of the powerful, the victors. It is an act of insight and idealism—mercy shown to the vanquished in granting them right.
(4) The defense can point out where the indictment is no longer a true bill but a weapon used by the victor for other purposes, political or economic—by confusing the guilt concepts, by planting false opinion in order to win assent and ease one’s conscience. Thus measures are justified as right which otherwise would remain obvious actions of the victor in the situation of vae victis. But evil is evil even when inflicted as retribution.
Moral and metaphysical charges as means to political ends are to be rejected absolutely.
(5) The defense can reject the judge—either because there is reason to believe him prejudiced, or because the matter as such is beyond the jurisdiction of a human tribunal.
Punishment and liability—reparation claims—are to be acknowledged, but not demands for repentance and rebirth which can only come from within. Such demands can only be met by silent rejection. The point is not to forget the actual need for such an inner regeneration when its performance is wrongly demanded from without.
There is a difference between guilt consciousness and recognition of a worldly judge. The victor is as such not yet a judge. Unless he himself discards the attitude of combat and by confinement to criminal guilt and political liability actually gains right instead of mere power, he claims a false legality for actions which themselves involve new guilt.
(6) The defense can resort to countercharges. It can point to acts of others which helped to cause the calamity; it can point to acts of others similar to those which the vanquished are deemed, and indeed are, crimes; it can point to general world trends that bespeak a common guilt.