Let’s start with a little Hohfeldian housekeeping.
Arguably there’s no such thing as a duty to defend oneself from injury. But no one, save the most bone-headed pacifist, would deny one has a right to defend himself, to defend himself even from state-authored injury, and be that injury an injustice or not. That is, the man being lead to the gallows, even if being justly so lead, is endowed with a right of nature to struggle against his bonds. If so – and it is so – then a fortiori has he a right to defend himself from state-authored unjust injury.
But does one have a right, perhaps even a duty, to defend others from state-authored injury, be that injury an injustice or not? Think of the nineteen martyrs of 9/11, mostly middle class Saudis, each with a relatively privileged lifetime ahead of before him. They struck a blow not for themselves but for those who were not so fortunate. So certainly he has that right, unless we want to say that fidelity to the state trumps fidelity to those in our care, in which case we’d have been quite comfortable in Torquemada’s Spain, Hitler’s Germany, Stalin’s Russia, or Mao’s China. But can this right to defend others be a legal right or duty? Obviously not, since then there could be no such thing as law, since law just is a threat to do injury.
Do we have a right, perhaps even a duty, to defend others from state-authored unjust injury? A fortiori we do. But once again, it can’t be a legal right or duty. In Dickens’ A Tale of Two Cities Sydney Carton’s last words were, “It is a far far better thing that I do now than I have ever done!” But that was his judgment on the morality of taking his wrongful place at the guillotine, not its legality.
Are there any laws we have a categorical moral duty to obey? I can’t think of a single one. Are there any laws we have a categorical moral duty to disobey? Some philosophers of law argue that if we do have a categorical moral duty to disobey it then it wasn’t a law in the first place. But this amounts to the rejection of the separation thesis, and this ‘inclusive’ legal positivism just invites conceptual gridlock.
You had a prima facie moral duty to disobey the law requiring you to report to the Gestapo the Jew hiding in your cellar. But it wasn’t a categorical duty. There are exculpatory circumstances. And it’s those circumstances – that gap between a prima facie duty and a categorical one – that this paper seeks to fill in.
The theme of this conference is what kind of duty we might have to resist what we regard, rightly or wrongly, as a state-authored injustice to others. So my contribution, for what it may be worth, is to point out that that duty, positive or negative, prima facie or categorical, can often conflict with a duty of care – positive or negative, prima facie or categorical – we might have for still others. The most obvious others for whom we might have a duty of care are members of our own families. But the more problematic case, the one I want to examine here, was the failure on the part of Pius XII, for fear of endangering the faithful under his care, to deploy the moral weight of his office in resistance to Germany’s so-called Final Solution to the Jewish Problem.
So, in the words with which Chris Cuomo opens his Cuomo Prime Time program on CNN every night, “Let’s get after it!”
In the spring of 2006 I spent the better part of a month in the library at the Gregorian Institute in Rome, researching – for purposes having nothing to do with the subject at hand – the Cause for Canonization of Cardinal Eugenio Maria Giuseppe Giovanni Pacelli, otherwise known, from 1939 to 1958, as Pius XII; also otherwise known – for reasons having everything to do with the subject at hand – as Hitler’s Pope. Why Hitler’s Pope? Because it’s widely regarded that, in ascending order of culpability, Pius either failed to discharge his duty to resist the genocide of the Jews, or he was passively complicit in it, or he was actively complicit in it, or he full-on collaborated in it.
The Cause was doomed to fail, if for no other reason than its success would have set Christian-Jewish relations back centuries. Benedict XVI made noises about revisiting the issue. But his more diplomatic successor, Pope Francis, has wisely opted to leave this particular sleeping dog lie.
What surprised me, in combing through the records of the proceedings, was that any defense of Pius against a charge of anti-Semitism was nowhere to be found. It was nowhere to be found because, I was reminded, it would have been utterly irrelevant, and it would have been irrelevant because anti-Semitism is pretty much the logical extension of the supersessionism that’s been at the core of Pauline Christianity from its very inception. Supersessionism, for the theologically challenged, is the doctrine that the Covenant struck by God with Abraham has been superseded by (what Paul regarded as) the New Covenant struck from the Cross. So if Pius is guilty of anti-Semitism, so is every Christian since Saul-turned-Paul fell off his saddle on that road to Damascus.
One widely-held corollary to the doctrine is this. Notwithstanding the right each of us has to decline to sign on to this New Covenant, those Jews who would’ve been first in line to do so chose to commit deicide instead. In so doing they forfeited the special protection which, it’s sometimes conceded, would otherwise have perdured for them under the old Covenant. Which is not to say – though it often was said under the Inquisition – that it falls to the Church to exact the consequences of that forfeiture. That’s a judgment for God to make. But neither does it fall to the Church to second-guess God on this score. So the Jew qua Jew is entitled to those and only those protections the Church is mandated to extend to any non-believer, be he Jew, Moslem or savage, and be that savage noble or debased.
Fair enough, conceded the commissioners. But among the questions that had to be resolved is what exactly is that mandate? Can the Church collaborate with genocide? Clearly not. Can it conscionably be, either actively or passively, complicit? That depends on what counts as such? And does it have a duty to resist? That depends on what falls under its cura. To explain:
No one, save perhaps God Himself, can be expected to bear the cura for all of creation. God has His watch, I mine. So notwithstanding Jacob Marley’s insistence that “Mankind was my business!”, under my watch are those and only those the cura for whom I take on knowingly and of my own free will.
Ah, but what about the child left on my doorstep? Did the Church have a duty to protect the Jews in the cellar or didn’t it?
Well, against the Egyptians the God of my ancestors was on our side. That’s why we call Him our God. But for the God to Whom Jesus cried “Abba” from the Cross there are no longer masters and slaves, Jews and Gentiles. What we owe to our brothers and sisters we owe to all of God’s children. That’s no small burden. Perhaps that’s why we Jews never signed on. But the Church did. Hence the case the Devil’s Advocate successfully set out against Pius.
Let’s review that case in some detail.
It was on July 20, 1933, that Cardinal Pacelli, then Secretary of State for the Vatican, negotiated and signed the Reichskonkordat with the newly installed German government. Incidentals aside, the Reichskonkordat was a “Render unto Caesar …” Germany agreed to respect the property of the Church and its freedom to go about its spiritual work. And in exchange the Church undertook to interfere neither materially nor from the pulpit in the political affairs of the Reich. In short, you don’t mess with us, we won’t mess with you.
Which seemed a reasonable enough bargain, given that the business of the Church is saving souls, not lives. It wasn’t about souls that Romeo Dallaire “shook hands with the Devil” in Rwanda. But as far as Pacelli was concerned, it was only about souls when he shook hands with the Devil in Berlin that July day.
But the case the Devil’s Advocate wanted to make was that in signing the Reichskonkordat Pacelli was endangering lives and souls. Not the souls of the six million. Those souls were not under the direct cura of the Church. Rather he was endangering the souls of those soldiers who, because of the Reichskonkordat, could no longer be dissuaded from participating in the forthcoming genocide, soldiers forty percent of whom prior to the Anschluss, and sixty percent thereafter, were Catholic, and whose souls therefore were under the direct cura of the Church.
Could Pacelli, in 1933, have anticipated the events of 1939 to 1945? Arguably not. Could he, in 1933, have anticipated the Nuremberg Laws enacted a scant two years later, on September 15, 1935? He could have, he should have, and he probably did. Why? Because the Nuremberg Laws were fashioned after laws already enacted by the Fascist government in his native Italy. Did he think German Nazism would serve as a corrective to Italian Fascism?!
Did the Reichskonkordat of 1933 guarantee the Nuremberg Laws of 1935? History just isn’t that deterministic. But did it facilitate them? Without a doubt. If the Church hadn’t been encumbered by the Reichskonkordat, it would have remained free to put its foot down two years later. Would it have done so? Counterfactuals are for armchair historians. (If Hitler hadn’t ordered Guderian to delay his advance on Dunkirk the Germans would have won the war. That kind of thing.) But this much is certain. If the Church had been unencumbered, and had it not put its foot down, it would have been fully culpable for the events of 1939 to 1945. Why? Because the Church is no stranger to history, and history is no stranger to what happens when people are deprived of the means of sustaining themselves. They very rapidly become a burden and a source of sedition, and when things get tight there are only two ways to unburden oneself of sedition: expulsion and genocide.
Does the rest of the world bear responsibility for the millions of would-be refugees it turned away? Perhaps. But offering refuge to the victims of injustice is not resistance to that injustice. In fact more often than not it encourages that injustice. If this be doubted, imagine that the United States opened its arms to every North Korean who wished to escape the injustices of the Kim regime. Then there’d no longer be any injustice in North Korea. That’s certainly one way to eliminate injustice, but it’s hardly what’s meant by resisting it!
So, to sum up this sublemma, if Pacelli didn’t know he should have known, given the race laws already in place in Fascist Italy, that 1) the Nuremberg Laws were in the offing, that 2) the Reichskonkordat would render the Church unable to oppose their enactment, and that 3) if Germany were to go to war, it would have little choice but to rid itself of the menace those laws would, and did, inevitably spawn.
Just as an aside, one doubt raised against the Devil’s Advocate was whether the Reichskonkordat scoped over the behavior of the German state beyond its borders. But that doubt proved stillborn, first because war is clearly a political act, and second because the laws of war make it clear that with occupation comes sovereignty. So vis a vis the Reichskonkordat, at least, no distinction could be drawn between Theresienstadt, which was in Germany, and Auschwitz, which was in occupied Poland. If signing the Reichskonkordat silenced the Church with respect to the one, it silenced it with respect to the other.
But, the commissioners were asked, what were Pacelli’s alternatives? The Church had signed similar agreements with virtually every other jurisdiction in Europe and the Americas. So had it not signed with Germany it would have announced a hostility to a regime which, at the time, was no more remarkable than the regime in which the Vatican was itself physically embedded, a regime with which the Church had more than cordial relations.
So, countered the Devil’s Advocate, in the absence of the Reichskonkordat relations between the regime and the Church would have gradually deteriorated. What of it?! Knowing that something like the Nuremberg Laws were coming down the pipe, and that the Church was duty-bound to oppose them, it should have been prepared to suffer whatever injury that opposition might incur. After all, isn’t that precisely what picking up the Cross is all about?! Besides, if, in the face of staunch opposition from the Church, the regime pressed on nonetheless with its persecution of the Jews, over half of the German population would have been forced to choose between their God and their Fuhrer. Even if only half of that half chose God, the Final Solution could not have gone forward with a quarter of the German people standing not at the top of their cellar stairs, but in front of the homes of German Jews. Pius threatened to excommunicate any Catholic who voted Communist in Italian elections after the war. Why, then, could he not have threatened to excommunicate – and followed through on that threat – any Catholic, in or out of uniform, who participated or in any wise collaborated with the Nazis after the first reports reached the Vatican of what was happening in Poland. But none of this was possible from the moment the ink was dry on the Reichskonkordat.
Pius could have torn up the Reichskonkordat. Why didn’t he? One argument is that doing so would undermine the fidelity of the Church to its own word. If the Church’s commitment to Germany could be abrogated, what commitment couldn’t be? But the more telling argument, both for and against, centered on the cura. Did Pius hold the cura for the Church, for the faithful of the Church, for the souls of the faithful of the Church, or for all of the above? And the argument that at the end of the day won the day, I’m pleased to report, was the latter.
Let it be granted, however implausibly, that the Nazis would have razed every Catholic structure to the ground, both in Germany proper and all the occupied territories. Let it be granted, however implausibly, that the Nazis would have shot or gassed every priest, every member or oblate of an order, every layperson who’d dared to declare the excommunication from the pulpit. If the history of Christianity, of Judaism, of Islam, has taught the tyrant anything, it’s that these faiths will always rise from the ashes.
“Ah, but this time it’s different!” has been the refrain of every prophet, every Laocoon, every Chicken Little, from the dawn of history. But the Church is not its buildings, nor its priesthood, nor even the bodies of its faithful. Buildings can be rebuilt. They invariably are. And new priests can be ordained. From whence did Pius think the faithful arise if not like a phoenix from the ashes of the crematoria? In short, it was not the faithful who lacked faith. It was Pius who lacked faith in the faithful. And in the God to Whom they’d have been faithful if only he’d lead them.
That, at any rate, was the argument that held the day against the canonization of Pius XII. But does its soundness – even assuming it was sound – transfer from the infants left on Pius’ doorstep to those left on ours? Certainly not without dying – if not the death then at least the pause – of a thousand qualifications. Let’s rehearse just a representative few of them.
First, carrying the cura for souls is much easier than for bodies. Souls don’t exist. Bodies do. That in the back of their minds most Christians know this explains why some Christians think Pius did the right thing. His silence saved lives. Well yes, Catholic lives. But other Christians think Pius did the wrong thing because – at least arguably – his silence sacrificed more lives than it saved. Yes, but not lives under his cura.
As with any utilitarian argument, the devil is in the details. Had the Church instead launched a last-man-standing campaign against the Nazis from the outset, what would have been the comparative body counts? Easy to conjecture; impossible to know. The same question has been asked about Hiroshima and Nagasaki, with the same “maybe maybe not” being all that one can say. But this is always the problem with picking one’s cura. How were the Hutu to know how badly their genocidal campaign against the Tutsi would backfire on them?
Second, excommunication is a species of passive resistance. Passive resistance worked for Gandhi because he guessed, rightly as it happens, that their own squeamishness would break British resolve before their half-hearted brutality would break the resistance. This would not have worked against the Nazis in the Warsaw Ghetto.
Nor would it have worked against the Nazis by 1942. This is why what we regard, rightly or wrongly, as injustice is almost always better nipped in the bud. Why? Because if not it’s as Martin Niemoller famously confessed: “First they came for the socialists, but I wasn’t a socialist …”
Because resistance is always a collective action problem, and because collective action problems are so notoriously difficult to solve, Niemoller’s counsel almost invariably falls on deaf ears, as it has here at the University of Lethbridge with the recent Tony Hall affair. It’s not that no one wants to stick her neck out. It’s that academic freedom doesn’t matter when one doesn’t have anything controversial she wants to say. Until she does. But by then it’s too late. It’s Garrett Hardin’s Tragedy of the Commons played out over and over and over again. Why do my colleagues fly rather than skype themselves into their save-the-world conferences? Because even if they don’t, everyone else will, and so they’ll miss out on the fun to no demonstrable purpose.
Third, quite aside from worries about endangering oneself and/or one’s loved ones – a worry that makes little sense in any cause you and I would most likely feel called upon to join – resistance can be expensive. Ironically, the most effective means of resistance – especially in any cause you and I would most likely feel called upon to join – costs nothing. Shunning requires nothing more than solidarity and self-discipline, and yet it’s the one form of resistance we seem incapable of deploying, even in the most dire case of military occupation. It’s not that the occupier – or in our case some miscreant administrator – will shoot you if you don’t return a “good morning”. It’s that we’re hardwired to return a “good morning” with a “good morning”. It’s that resistance is churlish. And churlishness isn’t collegial.
These and the other 997 qualifications on our duty to resist do not speak well of that duty. They tell us to resist not if we can, but only if we must. And if we must, to count the bodies, and to decide which bodies to count. There are always lives that don’t matter. At one time it was black lives, at another it was Jewish lives. But as we found out recently vis a vis Tony Hall, it’s the same with opinions. Some opinions deserve protection, others don’t. In any deliberations about one’s duty to resist, the first question is always the same: For whom do I hold the cura?