Friday, April 04, 2008

A Book by Fletcher and Ohlin and Some Thoughts on Collective Guilt and Personal Responsibility

In a very interesting new book, titled Defending Humanity, George Fletcher (Columbia University) and Jens Ohlin (soon at Cornell University) explore the international law of war. Last week an event was held at Columbia Law School in honor of the book's release.

For me, the most interesting of the many speakers was philosopher Jeff McMahan, who focused on the eighth and last chapter of the book. In that chapter, which points to the collective dimension of the law and the morality of war, Fletcher and Ohlin claim that war crimes are collectivist in nature and that guilt for such crimes is collective. McMahan contended that conceptualizing the guilt for war crimes, most often committed by specific officials or army units, in terms of collective guilt has the precarious effect of mitigating the guilt of the individuals that actually committed the crime. McMahan pointed out that under domestic criminal law the killer of one person bears the guilt for his actions, while under international criminal law the guilt for the crimes of the military unit that kills thousands is attributed to the collective in whose name those actually doing the killing act. According to McMahan, if the collective approach leads to such mitigation, it must be wrong.

It seems to me that distinguishing between responsibility and guilt may have helped dispel this impasse (a distinction Fletcher first explored in his Storrs lectures and also analyzed in Defending Humanity). Responsibility is a matter of action – one cannot be guilty for that which one did not do or authorize. Guilt, in contrast, is a relational concept. It attaches as a matter of status, identity, position, vicinity etc. Responsibility is a function of what one does, while guilt (or moral taint or moral pollution) is in many cases a function of who one is. In this sense one may share in the collective guilt for the acts committed by others in one's name or in the name of one's community without bearing the responsibility.

Guilt and responsibility function differently in moral space. A responsible party deserves punishment and should feel remorse. A guilty party (in the sense defined above) should feel shame but does not deserve individualized punishment. Therefore, while the army general that ordered the war crime and the soldiers that committed it are responsible, the nation in whose name they acted – and the members of that nation only – bear the collective guilt. The victims are entitled to blame the actual perpetrators but may only resent the nation in whose name the perpetrators acted.
posted by Ori Herstein