Tuesday, October 18, 2016


Freispruch! (Not guilty!)
Back in my teaching days, one of my favorite courses was my seminar in Ethics.  I taught in a program dealing with language and culture, and my focus was on how the concepts of right and wrong vary over time and space.  The goal was to help students become aware of what happens when cultures with conflicting values come in contact.  As an educator, I was also hoping to raise consciousness in my students about the importance of clarifying one’s own values and building a rational basis for an ethical system in a world of constant change.

At some point, we would run through the tried and true standard ethical dilemmas.  The survivors on a life raft, for example.   If there is no way to keep the raft afloat with more than five people and there are six of you, do you toss someone overboard?  If so, who?  Is a doctor’s life worth more than a carpenter’s life?  A child’s life worth more than a 60-year-old’s?  Would you torture somebody to prevent a nuclear disaster?

Occasionally, students would protest these hypothetical situations.  Ethics, many argued, are contingent.  I’d torture someone to save a loved one, my child, for example.  But not to save a stranger.  One student once told me he was offended that I should be doing this kind of exercise in the first place.  He should not be forced to reveal his values.  They were his and nobody else’s business.

I followed the Abu Ghraib story and the example of water boarding in particular.  Not just because I was obsessed and depressed with the thought that America had failed a major moral test miserably, but because I was fascinated by the reasons people came down against it.  A Kantian, or somebody at Stage 6 on the Lawrence Kohlberg scale, people who think principles are higher than individual needs or wants, will tell you you need to establish the right thing to do and then do it, period.  Others will want to make room for all sorts of contingencies.  So I became fascinated with how many people would say torture, water-boarding in particular, was wrong – not because it was morally wrong but because it was ineffective and often led to false information.  The implication, obviously, is that it would be all right if it actually worked.

This week, Germans turned their country into an ethics classroom.  A stage play entitled Terror, written by Ferdinand von Shirach, one of Germany’s most respected writers, was adapted* for television.  The play poses the question, "Would you shoot down a passenger plane – particularly in the light of the 9/11 experience – to save a football stadium filled with spectators?"

It is the story of a plane carrying 164 passengers which has been commandeered by a terrorist intending to crash it into Munich’s football stadium filled with 70,000 people.  A major makes the decision to shoot the plane down, thus committing what some will designate the “lesser evil.”

Complicating the question for those who place a high value on the law is the fact that until recently Germany had a law allowing such measures to be taken, in the event of a terrorist act.   Following 9/11, Germany instituted what was known as the Luftsicherheitsgesetz – the “Aviation Security Act on January 15, 2005.”  However, a year later, on February 15, 2006, Germany’s Federal Constitutional Court, their Supreme Court, declared that law unconstitutional.  Their reasoning was based on Article 1 of Germany’s constitution, its “Basic Law (Grundgesetz), which reads: “Die Würde des Menschen ist unantastbar,”  ("Human dignity shall be inviolable" in the official English translation.)

Article 1 has been interpreted to mean that one may not justify the taking of a life by the saving of another, no matter how many persons are involved.  The court is thus following the Kantian prescription, “Let justice be done, though the world perish.”  Kant’s approach to ethics is in contrast to the utilitarian argument that actions must be taken to bring about “the greatest good for the greatest number.”    Utilitarians focus on the outcome of an action and judge it accordingly.  Kant’s “imperative” is “categorical,” that is it is true for all times and all occasions, without exceptions or conditions.  You can’t shoot down a plane, because you can’t kill people.  Period.

So when Major Koch, upon whom the duty falls to decide who lives and who dies, kills the 164 to save the 70,000, he has done wrong, according to Immanuel Kant.  And more relevant to his fortunes, he has broken a fundamental law of Germany’s modern democracy.

Problem is that while Germany’s Supreme Court would seem to be Kantians, most Germans are clearly utilitarians.  And a gap this wide between a people and its government is what makes this a big story.

Hart Aber Fair panel, left to right: Jung, Wassmann,
Bahr, Baum, Plasberg (standing)
When the TV film was shown, it carried the title, Terror – Ihr Urteil (Terror – Your Verdict), and the public, effectively turned into a national jury, was invited to telephone in their decision to a talk show, Hart Aber Fair (Tough But Fair), which then released the results and debated them with four guests.  The two panel members who pronounced the major innocent of murder included Franz Josef Jung, a former defense minister, and Thomas Wassmann, a military man and fighter jet expert.  The two who pronounced him guilty included the theologian and bishop of Hannover, Petra Bahr, although she defended her position on grounds less theological than constitutional; and Gerhart Baum, the former Minister of the Interior, a passionate defender of the constitution.   If your German is up to it, the program is available here.  

The show, and thus the ethical dilemma, captured the imagination of the nation.  It had an audience of 6.88 million viewers.  That’s a market share of more than 20%. 

There are two sources of public opinion on the question of whether shooting down the plane was the right thing to do, the stage play and the television version.  When the play was performed around the world, in Germany, Switzerland, Hungary, Venezuela, Israel and Japan, audiences were asked to vote on Major Koch’s guilt.  Germans, for the most part, found Major Koch not guilty of murder by a wide margin – 90,357 to 60,897 of the votes tallied.   The range was even greater in Switzerland, where 2424 people voted not guilty to 882.  Tallies have not yet been taken in Denmark and Israel, but Venezuela and Hungary show similar responses to the German speaking countries (Austria's numbers on the television version were virtually identical to the German numbers.)  With the exception of Japan, where the vote went 569 not guilty to 958 guilty, the not guilty votes outweighed the guilty votes about 60/40. 

The Bundestag seems to have had the popular sentiment on their side when they first passed the Aviation Security Act, allowing a commandeered plane to be shot down.  And the Constitutional Court, their defenders might argue, did what Supreme Courts are supposed to do, determine constitutionality on the basis of reason, and not emotion.  

In real life.  But what about the television trial of Major Koch, who is found innocent of a crime? An overwhelming majority of citizens agree with the TV court, despite what one assumes would be the decision of the constitutional court in real life.  In the Hart Aber Fair discussion, the defense minister endorses the TV court’s decision.  The argument that one cannot measure one life against another is bogus, he asserts.  We do it all the time, for example, when it comes to saving a mother’s life over a fetus’s life, when faced with that choice.  The Catholic Church has made it clear the doctor’s obligation is to the newborn.  But the state argues a family can always have more children, but once the mother is dead, she’s dead.  And in wartime, medics performing triage routinely neglect a patient near death in order to save three with better life prospects.

But how to explain the wide discrepancy between the not guilty vote following the theater performances and the not guilty vote following the TV show?  Both agreed, but the TV audience voted for not guilty by a much larger margin – 87 to 13.  

Bishop Bahr attempts to make the point that the vote was not, in fact, a national referendum.  It was a vote on which ending was appropriate for a television program.  (They had prepared two endings, one in which Major Koch was found guilty, one in which he was found innocent, and it's the "best ending," technically, that they were voting on).  What governs the decisions of a law-making body in real life is not necessarily the same as what influences a television audience primed to be entertained. Florian David Fitz, who played Koch, for example, the major who shot down the plane, is one handsome dude.  As Bahr points out, he might easily be mistaken for Klaus von Stauffenberg, the man who made the attempt on Hitler’s life – a hero, in other words.  The “hero effect” might go a long way to explain the discrepancy between the 87-13 figure in the film as opposed to the 60-40 split in the theaters.  You watch a man on a stage from some distance.  On television, you watch his anxiety and his guilt and his vulnerability in close-ups on his eyes.  Then there’s the technology problem.  At some point, the phone lines jammed.  The figures are not necessarily representative of those who actually voted, much less of those who might vote in a real referendum. 

None of this detracts from the fact that, for a time, the German nation is being urged to debate a moral dilemma and consider the responsibilities of democratic institutions to follow the rule of law, or justify exceptions to the rule of law.  Such debates will quickly lead to others.  Security debates invariably involve the notion of privacy. Do you want police to be able to spy on everyone?  It would make everyone safer.  And it could perhaps head off such dilemmas as whether to shoot down a plane with 164 innocent passengers in it in the first place.

The former Minister of the Interior loses his cool in the panel discussion.  At one point the moderator asks him directly, “Are people wrong to find him innocent?”  “Yes,” Baum answers.  “They don’t know the law.”

Hard to argue with that, although one might raise the question, "If we don't permit our military to go after known terrorists, (remember, they are certain in this case) aren't we encouraging more terrorist acts? Wouldn't one successful attack on 70,000 football fans be certain to encourage another?"  To say nothing of sending the nation into a national trauma. How long would the country abide by the ruling that it's OK to sit tight and allow 70,000 people to meet their death, because "it's the law"? Would there not be riots?

And then there's the response to this response, "How is this not mob rule?"

And what about the argument that the folks in the plane are goners in either case?  Does this not suggest one should give them a part in history as tragic heroes and not define them only as tragic victims?

Or do you want to leave this decision to fate (or God, if you prefer)?  Or worry about guilt, and place it on the terrorists and not the major?

To which you have to ask, is doing nothing not also sinning/being guilty of criminal neglect of duty? Is being inactive the same as being responsible?

The questions go on and on.

It’s tempting to argue, as many have, that the national ruckus raised by populists like Frank Plasberg and his TV program have created more sound and fury than rational thought.  Der Spiegel suggests as much.  Interior Minister Baum lays blame on the author, von Shirach, for even getting this (bogus?) ball rolling (and missing the point that Shirach himself thinks the major is guilty.)

I’m persuaded by my years in the classroom watching otherwise tuned-out students come alive when faced with life and death questions that this debate is not a mistake, legitimate though the protestations of its faults may be.  I’m also persuaded by watching the sad state of political debate we’ve fallen into in the United States, that there are better things we might be doing, things such as this German debate, in the name of democracy.

*The play was adapted for television by von Shirach and the director, Lars Kraume and a third director and producer, Oliver Berben.  [To get a sense of Shirach as both writer and criminal defense lawyer, link here.]  It has been called "the TV experiment of the year."

panel on „Hart Aber Fair“


SJH said...

So much to chew on here! Would you use the film in your class, if you were teaching now?
The question of mob rule is definitely interesting. There are responsibilities that come with power--how are the boundaries of those responsibilities respected and maintained? Why did Colombia put the peace accord up for a vote? Why was Brexit put to a vote? Were the people in power not willing to stand-by principles that would benefit the good of all?
We're on to another topic now!
Thank you, for this very thoughtful blog.

Alan McCornick said...

You raise an important issue, SJH. All three of these issues - Brexit, the Colombian peace accord, and this willingness of eight out of ten Germans to go against their own constitution on emotional grounds, all can be framed in terms of the weakness of democracy, the fact that the "demos" can be a mob, or at least act in passion, in contrast to those placed in authority who are expected to act in reason. You see why we are a republic, and not a democracy. This is an especially good test case, since it would seem to be "common sense" to save 70,000 people, even if you have to take drastic measures, and many would argue "the law is an ass" in this case. And yes, I would use the film in class. Most people find the philosophical distinction between Kant and the utilitarians too abstract to manage or remember. This takes it out of the realm of the esoteric and makes it real and every-day. I'm also reminded of the line by Khalil Gibran, who argues that your reason and your passion are "the rudder and the sails of your seafaring soul." Unfortunately his suggestion that we not prioritize passion or reason, but find the right place to use both is of no use here. In the end, one simply has to choose. Shoot the plane down, don't shoot the plane down - there are "grounded" answers. Just no right answers.