Philosophical problems in the law

1. Robert A Jackson claims that the international community has the right to institute new customs that will form the basis for expanding international law. Do you agree?

2. What are some of the specific ground on which Jackson bases his claim that aggressive warfare was a violation of international law even prior to the formulation of the Nuremberg Charter? Do you find them convincing?

3. In his opening statement at Nuremberg, Jackson asks: “does it take these men by surprise that murder is treated as a crime?” In what sense is Jackson using “crime” here? Could the force of his remark be trading on an equivocation between crime as a moral wrong and crime as a legal wrong?

5. In what ways, according to Wyzanski, did the Nuremberg Charter create “new” law?

6. Why is an appeal to principles of justice or human rights embedded in “the law of civilized nations” necessarily an ex post facto appeal? Usually a law is ex post facto if what a person did was not a crime at the time he or she did it. But, Jackson might argue, these basic ideals had been around for a long time; they weren’t invented in 1945. How would you respond?

8. Imagine that you are a judge at Nuremberg on the panel hearing the case against the Nazis. Jackson and Wyzanski have each presented their case before you. Assuming that the evidence in support of Nazi atrocities is strong, would you rule that they have broken “the law”? How would you defend your answer?

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