This research will focus on the postwar period in relation to lives not worth living. This chapter is divided into five sections. The first section is a short introduction to the overall topic. The second part discusses the legal and philosophical language, post-Second World War, in relation to the psychically and mentally ill. This raises the question of whether or not philosophy can be made after 1945 without looking at Auschwitz. Adorno’s categorical imperative: Auschwitz can never ever be repeated, gains prominence in the way of making and proceeding in philosophy and in law this does not include just the Holocaust but also one of the most forgotten groups: the severely mentally and/or physically disabled. The policy of oblivion was practised much quicker than with other human categories. The paradigm of human rights changes substantially immediately after the Second World War The establishment of individual responsibilities for the committed atrocities will be carried out by means of the Nuremberg’s Trials. The third section focuses on the Nuremberg War Crimes Trial, USA vs. Karl Brandt et al. The fourth section analyzes the concepts of post-Auschwitz memory and memory of oblivion. Recovering post-Auschwitz memory implies recreating to the thought process after 1945. Finally, the fifth section draws some conclusions and indicates some further areas for research.
- ” life unworthy of life
The Nazis rise to power in 1933 marked the start of a historic stage featured by its moral decay. This decline which had its breeding ground in Romanticism, framed in the context of modernity, continued some time later during the Weimar Republic, although within a different reference system. The consequences were, at the linguistic level, the creation of an ethical, legal and philosophical language able to substantiate one of the greatest and more perfect machineries of extermination of humanity, with a clear organic component based more on feelings than on reason.
Analyzing this problem requires a prescriptive approach. The reason is that the Second World War represents a more or less generalized fracture in the history of contemporary thought. It is particularly evident in philosophy and, above all, in law. In this context, this chapter will look at the rule of memory as an instrument to analyze events already occurred, as experience for present generations and, in particular, for the future.
With this scenario, it is appropriate to take stock of what happened and gradually rebuild the postwar period, while paying attention to the mentally and/or physically handicapped during the Nazi era, groups which underwent such a quick policy of oblivion. This group serves almost as an excuse for rethinking the memory, from a hermeneutical perspective, about a group of people invisible to society and whom history largely ignored. With regard to this point, two aspects are analyzed: the first, concerning the state of the art after 1945, which meant a substantial change in the legal and philosophical thinking. Its implementation was done by means of a particular denazification that aimed at countering the atrocities committed during National Socialism. The second, however, refers to the post-Auschwitz memory, which involves reflecting with a reasonable use of ethical, philosophical and legal language; the aim of which is not wallowing in the Germans’ guilt, but helping to explain this starting point of how to reflect and maintain a responsible consciousness alive among the citizenry. In this regard, from a retrospective vision, it is observed how the meaning of the words has sometimes been gradually changed for the sake of spurious interests beyond a reasonable frame.
The philosophy of the memory—beyond partisan utilization—naturally avoids confusing the political commitment with the intellectual rigor, since the memory is objectionable when used as a political weapon. The memory of oblivion cannot be but selective and endowed with a halo of impartiality, but it should not be confused with an imposed oblivion that would justify amnesty. Rethinking the past is to confront the present with other eyes: to think it over again. That is, with commitment and without complacency, which make the individual not turn his back on others while carrying out such acts. Remembering entails a task of learning, key in this sense how to remember, this is, how what is learned must be understood. In this context, there arises an interesting aspect that determines the study: the more the victims suffered, the more they want to disregard the suffering of others and the generations to come.
2. Transition to a New Era
Before the end of the Second World War, the leaders of the United States, Russia and the United Kingdom projected, in the 1943 Teheran Conference, how to create an organization for peace once war was over. During this time, there was a feeling that injustice prevailed and that what had happened should never happen again. This way of thinking leads to an unprecedented change of scenery, which greatly affects the way of understanding philosophy and law. After the crimes against humanity perpetrated by Nazism, by means of the extermination camps, the maxim of Hegel, “the real is the rational and the rational is the real” , lost part of its meaning. The unreasonableness of National Socialism had overcome any type of reason. By contrast, Adorno’s words were to gain prominence: “The feeling which after Auschwitz resists every assertion of positivity of existence as sanctimonious prattle, as injustice to the victims; which is reluctant to squeeze any meaning, be it ever so washed-out, out of their fate, has its objective moment after events which condemn the construction of a meaning of immanence, which radiates from an affirmatively posited transcendence, to a mockery” . As a categorical imperative (Auschwitz can never ever be repeated) , Adorno could not have foreseen that genocide would also happen in Cambodia, Africa or Bosnia, highlighting the extreme weakness that features memory. So much so that, according to Mate, there is a relationship between the current oblivion and the amnesia that characterized the historical logic that led to catastrophe, which is why history can be repeated . The human being should consider who he was after what happened and, above all, who he wanted to be. If cultural, rather than moral, standards had prevailed in the Weimar Republic, the opposite happened postwar: a culture of exclusion and alienation had prevailed during National Socialism, so the postwar period was built on the basis of awareness and a nuanced inclusion.
The year 1945 signalled a before and after in the history of contemporary legal and philosophical thought. On March 30, Hitler took his own life and, with it, the hopes of his supporters began to fade. However, the United States put an end to the Second World War by dropping atomic bombs on Hiroshima and Nagasaki in August of 1945, thus terminating the conflict and giving victory to the Allies over the Axis Powers. The fact that North America returned democracy weighed on the Germans’ conscience. In practice, though, Germany remained occupied and divided by the four victorious powers for more than 40 years: the western part, run by France, Great Britain and the United States, and the eastern part, by the former Soviet Union.
The welfare state had begun to take shape during National Socialism, so that the progress from a totalitarian state to a welfare state occurred gradually. Nonetheless, much of Germany was devastated and criminal acts occurred more frequently than expected. The postwar period brought about strong institutions designed from the ground up, but sometimes they did not have the character of true universality as was originally intended. Having left behind semantic transformations, it was time to speak of “the grammar of rights” . As was clearly reflected in the preamble to the Charter of the United Nations: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom” .
Along similar lines, the Universal Declaration of Human Rights of 1948 was, for 51 countries, a fresh start, which emerged—according to Orrego—at a time of radical self-awareness of humanity regarding their ability both to exceed in evil, as to make justice prevail through the use of force. In view of the Holocaust, the attraction of relativism and scepticism in relation to the dignity of the human person paled for a moment . Human dignity stood out as unavailable, while at the same time an ambivalent result was forged: there was no need to argue on the basis of human rights, because they were already included in writing in an agreed document. They appear also as a historical notion of contingent: the institution of human rights exists, but it could cease to exist as well.
Despite going back to the beginning, terms such as eugenics and “euthanasia” were already in the minds of German physicians, as well as in certain circles of power. According to Gadamer, language served as a means to perform the agreement of the partners and the consensus on the matter . The readings of Nietzsche plus earlier and later authors had left a residue for the configuration of a really pejorative kind of language:
After Auschwitz, came a new era with an entirely different philosophy and law; in short, an unprecedented awakening of the use of memory. The old German law—as noted by Stolleis—was replaced by a new one: in particular, striking symbols or symbolic figures of the old regime were immediately eliminated . Gone was the notion that argued that the Nazi legal thought came from the “spirit of positive law” . According to Neumann, the official legal ideology of National Socialism is methodologically closer to “iusnaturalistic” thought of the traditional systems of natural law that in positivist conception . Natural law was used ambiguously; during National Socialism, as a natural law of the race, while during the Second World War as
The differences between the first and the second postwar periods were more than palpable. Bessel highlights how the shock of the cataclysm of 1945, characterized by extreme violence, the scale of the German defeat, occupation and division of the country, and the fight often desperate for individual survival, made possible a transition that is very different from that following the First World War . This was a complex and difficult to manage transition, to which they had to articulate a system which tried to counter the perversion which occurred years before. A system that was the cornerstone of a particular asymmetrical settling of scores, the Nuremberg Trials, asymmetrical because the horrors suffered during the Nazi regime ended with a handful of executions and convictions of some important Nazis which silenced some voices. Others, though, had already lost their lives to suicide or had managed to escape justice. A series of denazification processes were initiated on November 20, 1945, and extended up to April 14, 1949.
3. Social Imaginary, Politics and Law in Nuremberg
On this occasion, focus is on the Nuremberg War Crimes Trial, USA vs. Karl Brandt et al., despite the fact that important processes were conducted by national courts, too. For example, in the so-called Hadamar Trial in Frankfurt in 1947, a court judged several employees of that centre for the death of 10,000 patients within its facilities between 1940 and 1945. The Hadamar Trial focused on doctors, nurses and both administrative and technical staff. One consequence was that the official in the area of Wiesbaden, Fritz Bernotat, head of psychiatric institutions in Hesse, was never really prosecuted .
On December 9, 1946, The Doctors’ Trial began for war crimes and crimes against humanity, which would culminate on August 20, 1947. An international military court, composed of three judges representative of each victorious power, issued a conviction against a total of 23 people, 22 men and 1 woman, of which 16 pleaded guilty. Once the entire process was over, the result in some cases was less onerous than expected. Among those accused of committing war crimes and crimes against humanity and for belonging to a criminal organization, only seven ended up sentenced to die upon the gallows: Viktor Brack, Karl Brandt, Rudolf Brandt, Karl Gebhardt, Waldemar Hoven, Joachim Mrugowsky and Wolfram Sievers, whereas Fritz Fischer and Karl Genzken were sentenced to life imprisonment. A second group was found guilty of war crimes and crimes against humanity, and the group was sentenced to the following penalties: Siegfried Handloser, Gerhard Rose and Oskar Schröder, life imprisonment; Hermann Becker–Freyseng and Hertha Oberheuser, 20 years in prison; lastly, Wilhelm Beiglböck, 15 years. Third, Helmut Poppendick was sentenced to 10 years in prison for belonging to a criminal organization. Finally, Kurt Blome, Adolf Pokorny, Hans Wolfgang Romberg, Paul Rostock, Siegfried Ruff, Konrad Schäfer and Georg August Weltz were acquitted [15, 16]. All of them did their utmost to improve race to the ultimate extreme.
The prosecution strategy was to prove “euthanasia” to be a war crime, so that military justice had jurisdiction over the case. In general, it was intended to attack medicine as ineffective, unscientific and monumentally destructive. The defendants and their lawyers legitimized “euthanasia” to understand it as a relief from the suffering of the severely disabled and incurably ill whose lives were unworthy of living. At the same time, Karl Brandt and Viktor Brack claimed that this “euthanasia” was not really different from practices defended in other countries. To do this, they cited a series of literary justifications of “euthanasia,” including essays of the Austrian Jew and socialist eugenicist Julius Tandler, and excerpts from the work
The various convictions had an exemplary character, in spite of the fact that those imprisoned were released before having completed their sentences in full. According to Zolo, the start of this international criminal justice appeared uncertain and controversial from several points of view: the independence and impartiality of the courts, in particular of the Attorneys General, the respect for the rights of habeas corpus for defendants, the quality of the penalties inflicted on the condemned, its purpose and preventive efficacy . The deaths of those sentenced could not be a private issue, so they were hanged for their crimes, although not as much publicity was given to this as would have been desirable for certain sections of the population. Nobody remembered or gave enough thought to what had happened.
In the above-mentioned process, a number of people who had made possible the use of a type of medicine of the most advanced in the world were prosecuted. Normal individuals with ordinary lives, who had trained well in college, studied art, science and ethics of medicine, and who had sworn the Hippocratic Oath at the end of their studies. So, what went wrong and what had failed? In this context, Hassenfeld focuses more on psychiatrists, being difficult to establish what went wrong . Lights and shadows cast on the causes of the quick accommodation of the physicians to the programs of racial hygiene to experiment with and, ultimately, annihilate human beings whose lives had no value for the Nazi regime. Unfortunately, it is known how little publicity that those sentences were given, as with the other legal decisions that were issued in Nuremberg.
The population rejected the eugenic and “euthanasic” practices, but the response was more dramatic than expected: silence prevailed. The reason for this attitude is far from clear within the Academy. The Adenauer government was influenced by that attitude with a more anti-Communist than anti-Nazi policy, based on which they were not that interested in opening proceedings against former Nazis . Klemperer lucidly shows his displeasure labelling it as a “deadly disease” to the so-called denazification. As he states: “I hope, and indeed believe, that this dreadful word will only have a short life; it will fade away and lead no more than a historical existence as soon as it has performed its current duty.” A word that will someday fall into extinction, as if the situation that it would have ended, will no longer exist. This will still last a while, “because it isn’t only Nazi actions that have to vanish, but also the Nazi mindset, the typical Nazi way of thinking and its breeding–ground: the language of Nazism” . Unfortunately, it has yet to disappear.
As a result of the findings of the judges arising from that process, the Nuremberg Code—on ethics in experimentation with human beings—was promulgated in 1946, as a starting point for the development of the limits in medical research. Among other matters, voluntary consent of the patient raised as absolutely essential; research based on previous animal tests, together with a knowledge of the natural history of disease that may promise results to justify their implementation; cautions related with risk taking; measures that were appropriate to safeguard any kind of prejudice (injuries, death, etc.) that might be caused; the possibility of ending the experiment by both patient and physician, and the training of the health workers involved .
The preparation of various agreed documents such as the Declaration of Helsinki  of 1964 by the World Medical Association (it would be subjected to successive later versions: 1975, 1983, 1989, 1996, 1999 and 2000) did not impede the implementation of eugenic policies with varying degrees in different countries of the world. It is easy to remember cases of “early euthanasia” as the known process of thalidomide in Liege 1962, in which a mother and a doctor who had killed a child born without arms were acquitted. A British doctor was also acquitted in the early 1980s; the physician helped a child with severe Down syndrome to “sleep” through the use of tranquilizers and sedatives. Meanwhile, another doctor was convicted of attempted murder—in 1970 in Hamburg—for throwing away, along with the placenta, a premature child to whom he did not give the possibility of survival .
It is nonetheless surprising that medical experiments were still conducted, without too many barriers, after all that has happened. The ruling Buck v. Bell remained the best defense of the legally established sterilization, even in the inmediate aftermath of the Holocaust . Until the 1970s, State measures of sterilization were conducted as the famous Tuskegee experiment developed from 1932 to 1972 in Alabama. With this experiment, according to Lombardo and Dorr, eugenics reinforces and updates the “racial medicine” of the nineteenth century, establishing it firmly on modern and scientific grounds . The Belmont Report was issued, which described the three principles of bioethics (respect for persons, beneficence and justice) that were then considered, as a result of that tragic event, among other circumstances. Later, the principle of nonmaleficence (
4. Post-Auschwitz Memory and Memory of Oblivion
The survivors of the concentration camps and the sanatoriums were released, after the Nazi regime ended. They would become the living image of memory and testimony. If nothing is done to keep their memory alive, their death will bring about oblivion. Against this background, the task of thinking post-Auschwitz becomes fruitful and necessary in order to build a discourse that would prevent the Nazi injustice, the pointlessness of that event . Contemporary thinking conditioned by Auschwitz which has an “epochal value,” “therefore” there is a before and an after, also for philosophy” . Nevertheless, once the trauma post-Auschwitz seemed to be overcome, the following step is to rethink and to reinterpret a memory of oblivion, which supplies its effect when it is accompanied—as Ricoeur says—of a “duty of memory” consisting of a “duty to not forget” .
After the Second World War, the person is taken as a reference in the field of law, later in bioethics, although the passing of the years has diluted that anthropological conception underlying the legislation and jurisprudence of the fifties to seventies in Germany. There were mainly two attitudes about how to rethink memory: those people who wanted to forget and that of those who tried to remember. If you opt for the latter, it is commendable to understand that, according to Mate, Auschwitz could not be planned in all its horror, but it did happen. And when the unexpected occurs, it becomes a reference for thinking, that is, something that makes one wonder. Thinking after Auschwitz means taking us back to that point of negativity when thinking of the problems of our time. With this, we want to express that “memory is the beginning of thought. There has been a substantial change in the social value of memory and its contents. In fact, memory value rises higher. It is a global phenomenon” .
Such a major philosophical process highlights the interest in revitalizing the post-Auschwitz memory—as already indicated at the beginning of the work—in that mental faculty of retaining and recalling past events, located in a space-time context after the Second World War. This concept should not be assimilated to historical memory, despite the relatively recent development of the second concept. The reasons vary and are of different degrees: on the one hand, memory should not be spiteful or vengeful. Sometimes, as Ricoeur states in relation to memory, it resembles more of a “competition among ideologies” than a serene debate on rational arguments: “It is always the other who joins in ideology” . On the contrary, you should try to be fair, at least, from the starting point, because the point of arrival can never be so, since memory is by definition
By its own idiosyncrasies, the notions of history and memory tend not to reconcile to the extent that history may be the destruction of memory . History involves the destruction of memory, because on several occasions, the elements used in the memory as retention or memories do not exceed the methodological guidelines used by historians. According to Gustavo Bueno, history, as a scientific discipline, is not the product of memory, nor has it anything to do with the memory more than chemistry or mathematics may have, either. History is not simply a reminder of the past. History is an interpretation or reconstruction of the relics (which remain in the present) and an arrangement of these relics. Thus, history is the work of understanding, not of memory . The intent does not imply
Remembering implies approaching the past historical context, in order to interpret its concepts, to detect errors and not repeat them in the future. Heroism, patriotism, and uniforms were three hallmarks during National Socialism. Germany, always in search of its identity, tried to find the one that best fulfilled its role, postwar: heroism. If society is not aware of the positive task accomplished by those unsung heroes for humanity, efforts by groups like the White Rose (
In the legal and political language of the Third Reich, the concept of patriotism suffered a radical turn, when it was connected with a particular nature, race and culture: the Arian. Patriotism was changed to slavery an interpretation of the exclusionary, ethnic and imperialist homeland emphasizing the mythical past features, while rebuilding history mixed with legend to rouse the masses. Goebbels stated that the first commandment, every Nazi should know: your fatherland is Germany. Love it more than anything, and more in deed than in word . On the contrary, according to Mate, a more feasible path passed by understanding the subject of History not thinking of the happiness of our heirs, but rather of the sufferings of our ancestors ; less patriotism and more accountability.
All that paraphernalia caused an ambivalent reaction of measured admiration and outright rejection in a number of future intellectuals. It is possible to speak of three groups within these: those who recalled the past, those who prefer to forget the past and those who were trying to live in the present thinking of the future; while it is true that these three groups did not function as watertight compartments, but rather some of them could “infect” others. However, as a basis for arguing, it is easy to end up using stereotypes, for example, the young against the old. Historic responsibility of later generations has been marked by a past they barely knew.
The value given to stability contributed, according to Bessel, to reconfigure the successful conservative culture of the 1950s in Western Germany and to undermine the policy of continuous alterations and transformation driven by the Government of the Democratic Republic. Seeking security was a key factor in Germany’s postwar culture . In the 1950s, the injustices of criminals were considered as justified, as part of the popular clamour, which led to a second set of proceedings aimed at a less unpopular outcome than the first. The executioners became victims. The strategy was to discredit the Nuremberg Trials as the victors’ justice, even as the Jewish and the winning leftist conspiracy in the form of a military tribunal with the ethos of an international tribunal . Years later, the prescription of the crime was discussed and even certain sectors called for a general amnesty. There was not a real and serious pursuit of Nazi criminals. The consequences of the T4 action and eugenic policies were minimized. Not wanting to recall showed a biased view of the facts, an amnesia caused by a deliberate interest in forgetting. Wiesel takes stock of that tragic situation several decades later: “When I think about the Nazi doctors, the medical executioners, I lose hope. To find it again, I think about the others, the victim–doctors; I see again their burning gazes, their ashen faces” .
Different processes carried out against the Nazi criminals aroused in the younger generations, who had known very little about National Socialism, an eagerness to learn more about the events that occurred. The effort to make the Nazis palatable suffered a new setback with the arrest of Eichmann in Buenos Aires on May 11, 1960, whose mission was to direct the program that carried out Hitler’s Final Solution. The declaration of Eichmann’s guilt by the Court meant a provisional end point, being sentenced to death and executed on June 1, 1962; a process that had begun a year earlier. It marked a before and after by the magnitude of the crimes and his denial of them, arguing that he obeyed rules of war. A stage of more Marxist content started with a Germany divided by the Wall, which was unable to see at base level. This was a pointless confrontation. The good times were not necessarily those of others or our own, it would rather be preferable to talk about time with the others. Adorno saw the paradigm shift clearly: the requirement that Auschwitz would never happen again is above all a matter of education; hence, it should be taken seriously with an intention that is not alien to philosophy .
Arendt would take over to deepen that barbarism, after having described the last moments in the life of Eichmann: “It was as though in those last minutes he was summing up the lesson that this long course in human wickedness had taught us–the lesson of the fearsome, word–and–thought–defying
Globalization brought a perversion of the language, in its interest for making it deliberately universalist, to understand well what has been learned, while perhaps it did not globalize the ability to understand. Language is key and altering it can only lead to catastrophe. It is necessary to avoid verbal hypocrisy and semantic pollution, so as not to fall into an irrational pointless situation. Language has not changed much from that period to now, contexts are different but trends are similar .
Just as bioethical and biolegal issues end in a kind of covenant, making that well-intentioned thoughts could lead to the error of a mistaken assessment of the course of action. It is of the greatest importance that this stance be committed to and be truthful to reality. The past should be assessed while taking care that it is a sensible past aligned with political equity of all human beings. Nihilist postliberalism of our epoch notes its indifference towards others. The point was not to live for others, but not to turn their back on others. It is necessary to put an end to this type of Nihilism, which is even more disruptive than scepticism itself. Within this context, the point is not censoring every research about evolution or genetics, but to call for due caution when making irreversible decisions of legal, medical or moral type on others.
The Nazi genocide is always remembered as the paradigm of the Holocaust, although there were also indiscriminate killings which cannot be labelled as genocide since it did not affect a specific ethnic group as they were patients with serious physical and/or mental illness. On this basis, it is appropriate to act responsibly in taking further action, in looking back and reflecting, ultimately coming to our present, burdened with our past, a two-way process that will help in understanding the past charges of our present.
By exposing this issue, I sought to highlight a better common legacy for future generations, rethinking memory. Thus, it is crucial to decide to have a future with or without memory. If the first option is chosen, it is important to note that the advancement of such memory will be more learned than lived. When all survivors of Nazism disappear, only the learned memory will remain. Memory inevitably presents a selective character, which is always featured by a dreamt memory component. Times of yesterday make the past mix with the present, because without remembering the past we will have committed the excesses of wanting the present too much. A memory from oblivion should be told not only from the perspective of the vanquished and remembered but also from the losers and the forgotten.
This is the English modified version of the chapter 4 of my book ‘Los olvidados del nacionalsocialismo. Repensar la memoria’. Madrid: Centro de Estudios Políticos y Constitucionales; 2014. The author is grateful to the publisher permission to publish this work. The chapter was translated by María-José Pastor and revised by the author.
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Some could even continue their business quite normally like W. Bayer, H. Hefelman, W. Heyde, J. Mengele, O. von Verscheuer or H. J. Sewering, despite his nazi past. Proof of this was the obituary, published in the journal Deutsches Ärzteblatt by Hoppe J.D., Vilmar C., in which it opts for silencing the participation of the doctor in Hitler’s program of ‘euthanasia’. Hans Joachim Sewering†. Gestalter im Dienst der Ärzteschaft ( Designer at the Service of Medical Profession). Deutsches Ärzteblatt. 2010; 107(28–29):1409. The reaction to this obituary did not take long: Nachruf: Kein Hinweis auf die Rolle im Nationalsozialismus ( Obituary: No Reference to the Role in National Socialism) was published in the same journal signed by Hohendorf G., Fangerau H., Wahrig B., and other 78 professionals. They criticized the incomplete nature of the obituary, which might mean a step backward when it comes to present the reality of the facts, Deutsches Ärzteblatt. 2010;107(31–32): 1520.
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