|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.
on a life raft, for example.
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?
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
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.
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.
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,
However, a year later, on
February 15, 2006, Germany’s Federal Constitutional Court, their Supreme Court,
declared that law unconstitutional.
reasoning was based on Article 1 of Germany’s constitution, its “Basic Law
), 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
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
You can’t shoot down a
plane, because you can’t kill people.
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.
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
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
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.
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
The argument that one cannot measure one life
against another is bogus, he asserts.
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 t
he 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.
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.
television, you watch his anxiety and his guilt and his vulnerability in
close-ups on his eyes.
Then there’s the
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
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