Is That Legal?

I think the reason why people seem to forgive the time issue is because its supposedly "the prevailing attitude" at the time, and theres no other alternative, unlike the Hmong immigrant in America who "should know" the differences in America. However throughout history that simply has not been true. People tend to have a monolithic view of history, that somehow ALL germans were rabid anti-semites, or that all white people in the south approved of slaves. The existence of resisters in Nazi Germany, and the existence of abolitionists in the South tell us, no, there were alternatives, people just preferred not to take the path less travelled. And thats where the whole "prevailing culture" excuse falls by the way side. It's ironic in fact that people guilty of such crimes have to essentially wash everyone else as criminals in order to attempt to absolve them of their own moral laxities.

Dear Prof. Muller:

First, re Sean S.' comments above: What he said!

Second, professional exigencies preclude my being able to take time to respond as I'd wish today - but Ah'll be beck!

The difference between temporal and cultural excuses is at least in part due to the fact that those in the past who have done things that we would judge to be crimes today, aren't actually at risk to commit a new crime, absent a time machine or similar contrivance.

Sean S, Your argument reminds me of people who at one time argued against affirmative action and the whole concept of racial or gender prejudice in the work place. They would point to a highly successful black or woman and say, "See, that proves there are no barriers to success. If others don't make it, it's just because they're lazy or unqualified."

The existence of resisters in Nazi Germany, and the existence of abolitionists in the South tell us, no, there were alternatives, people just preferred not to take the path less travelled.

Doesn't it follow then, that the existence of Paul Robeson tells us that African Americans in the early 20th century had alternatives to poverty and oppression, that they could have gotten scholarships to Ivy League schools and become huge successes, but simply "preferred not to"? A few people 'made it,' but that doesn't mean there were no cultural forces preventing moral or scholastic success. Those forces weren't insurmountable, but that they were powerful and real. The fact that only a few exceptional people managed to overcome them, demonstrates just how strong they were.

Understanding or forgiving the non-exceptional people doesn't mean we should make them our role models. It also doesn't mean holding them blameless. Every German who went along with the Nazis was guilty of moral failure, but not every German was morally bankrupt or evil. They were for the most part ordinary people who were faced with an extraordinary challenge and failed. Clearly we should try to emulate the successes, but that doesn't mean we should conmdemn the failures.

Perhaps what's needed here is a little humility. We are all products of our cultural. We would like to think that the reason we oppose slavery today is that we're stronger or more morally evolved than our slave-owning forebearers, but most of us believe slavery is wrong for exactly the same reason that they though it was all right: because 'everybody knows it is.' We've internalized the morality of the culture we live in just as they did. Culture is not monolithic. All of us who were raised in America share some basic cultural influences, but we are also shaped by our regions, religions, families, and friends.

Consider another slaveowner, call him 'Ashley'. When Ashley's father died he inherited the family plantation and slaves. Ashley was a good, tenderhearted man. He recognized the injustice of slavery and the immorality of beating and killing them. But he was also a family man. There was his old widowed mother to consider, and his sisters would soon be needing husbands. That meant they would need fine dresses and carefully couffed hair. They would need a fine family home where their suitors could call. Ashley tried to balance his moral and familial responsibilities. He didn't free his slaves, but treated them extraordinarily well. He maintained his place in society, keeping his opinions about slavery to himself and maintaining good relations with his pro-slavery neighbors, but he secretly swore that once he'd discharded his familial responsibilities, he would free every slave he owned. The Civil War came before he had a chance to make good on that vow, but he was a good and honorable man, and no doubt he would have kept it if history hadn't intervened.

How should we judge Ashley? By his actions, he was better than his neighbors. He eschewed the brutality of his time and place and followed a higher morality to the benefit of his slaves. But is he really less culpable than his coarser neighbors who never gave a thought to the ethics of slavery? His own personal culture -- his family, religion, whatever -- had given him a higher ethical standard. He had tried to live up to that standard, but only to the extent that it didn't inconvenience him too much. He never confronted his neighbors with the injustice they were all perpetrating. Instead he simply went along with a system he knew was wrong. Did his courage in questioning the common morality of his time and place and choosing a path of good treatment and eventual freedom for his own slaves make him less guilty than his neighbors? Or did his failure to fully act on his principles make him more guilty?

Beth, those are great questions at the end there. I'm curious to know how you'd answer them.

I'm not sure, Eric. My first impulse is to say he was worse because he knew what was right and failed to do it. The cultural defense seems less applicable for him than for his neighbors, since his particular background had lifted him beyond that limited cultural awareness. On the other hand, he was subject to the same cultural pressures they were. Taking a stand against slavery would have made him a traitor to his class. Obviously that would have been the right thing to do, but it would have taken a lot of courage and self-sacrifice. If I condemn him for not doing it, I'm doing the same thing I accused Sean S. of: condemning someone for not being exceptional.

You said of Landon Carter, "with that opportunity came responsibility." Ashley didn't have Landon's superior wealth and position, but he would have been recognized by his neighbors as a good man, so his acceptance of slavery would have had greater weight. Also, I assume Ashley's more advanced morality didn't spring from nowhere. Someone taught or encouraged him to question these issues and provided a moral basis for them that his neighbors lacked. His greater opportunity to consider moral questions brought greater moral responsibility as well. So finally, I suppose I have to go with my first impulse and find Ashley more guilty, not less.

Sean S, Your argument reminds me of people who at one time argued against affirmative action and the whole concept of racial or gender prejudice in the work place. They would point to a highly successful black or woman and say, "See, that proves there are no barriers to success. If others don't make it, it's just because they're lazy or unqualified."

I don't even begin to understand how my opinions could be construed as that. The existence of exceptions, on a success level, is in no way comparable. One is an issue of getting ahead of becoming above someone else. The other has to do with a completely personal decision. One black CEO does not prove that all the rest are just lazy and don't work hard. But one abolitionist however, confirms that a moral choice on a personal level can be made.

Every German who went along with the Nazis was guilty of moral failure, but not every German was morally bankrupt or evil. They were for the most part ordinary people who were faced with an extraordinary challenge and failed. Clearly we should try to emulate the successes, but that doesn't mean we should conmdemn the failures.

I never said as much. I simply stated that people took the easy road out, and they should be held accountable for their moral laxity. Throwing your hands up and saying it was hard is not much of a defense. Alot of things in life are amazingly challenging and hard, and people routinely overcome and rise above such things. When you fail to rise to a moral challenge on a societal scale, you are complicit in its machinations if you don't try and stop it. I mean I'm all for forgiveness, and I understand the fact that we all make mistakes etc etc. But that doesn't get you off the hook.

One black CEO does not prove that all the rest are just lazy and don't work hard. But one abolitionist however, confirms that a moral choice on a personal level can be made.

So tell me, does one abolitionist prove that all the rest are just bigots and don't have morals? Does one black CEO confirm that a career choice can be made?

If you can judge antebellum whites for being unexeceptional, why not judge Jim Crow era blacks for the same thing?

I simply stated that people took the easy road out, and they should be held accountable for their moral laxity.

Held accountable by whom? By the few heroes among us? They're the only ones who aren't guilty of the same crime, and maybe not even them. At some point in their lives they took the hard road, but there's no telling how many other times they took the easy road. We all do that. Should they really be held accountable for being human? We human beings are limited. We are limited by our time and place, our family, our friends, and our culture. None of us can really escape those limitations. All we can do is to do our best within them, consider deeply what is right and wrong and strive to do right and avoid wrong. None of us will be completely successful in that.

Consider Hans. Hans doesn't give a lot of thought to things. He generally believes what the newspapers and the radio and the movies tell him. One day they all start telling him that all the problems in his country are caused by the Jews, the Jews are an evil race bent on destoying everything good and decent in the world. They may appear to have human feelings, but they're just acting. This all makes a lot of sense to Hans. Things have been going horribly and sometimes he felt the cards were stacked against him. Now he knows why.

Has Hans failed to rise to a moral challenge? By his lights, the moral thing to do is join the Party and defend his country against this evil influence that's trying to destroy it. Maybe Hans has some moments of doubt. The Goldbergs down the street certainly seem human. But Hans has been taught all his life not to trust his own feelings and perceptions. It's been beaten into him since he was a child that obedience to authority is the highest moral good. So he silences those sinful doubts and becomes a goood Nazi. The only moral challenge Hans can see is the challenge to obey. He has risen to that challenge and proven himself a good and moral man.

I didn't read the essay so maybe you've already dealt with this, but I agree with Chuchundra. Surely one of the reasons that the cultural defense is rejected is that it's plain that we cannot have a multitude of standards to judge people's actions. What is wrong for one person to do is wrong for another (though there can be other extenuating circumstances). This even gets to equal protection before the law: a woman from a misogynistic culture must be protected equally as a woman from a non-misogynistic culture, for example. If this weren't true, equal protection would be out the window- we'd have effective apartheid in the law: different standards of what's legal and what's a crime depending on where you hail from. Rejection of the cultural defense prevents this from happening. It prevents future crimes, or at least tells the potential perpetrators that they can't use culture as a defense.

These reasons for rejecting the cultural defense don't apply to rejecting a temporal defense. There's no danger of unequal protection now because people were differently protected then. There's no promise, happily, that equal protection before the law applies to people across different times. And more importantly, there's no danger that judging a past crime differently from a modern one will encourage a future crime.

Another thing that occurs to me is evolving moral standards. If you believe they exist, then it would have to be unfair to judge someone who didn't have access to the new and improved standard. I suppose this is where the arguments over whether someone had access to these new standards come in.

One last thought that I had: it may not be morally defensible, but people generally hold what's legal to be inactionable, kind of a safe harbor. This applies especially to the slavery reparations cases. If the law in one time allows something, can later law be used to penalize those who had been complying with the law earlier? The Constitution says no. But as I said this is much more a legal than moral argument.