Between 1945 and 1949, Nuremberg, in the German state of Bavaria, was the scene of a series of military tribunals, carried out to prosecute Nazi war criminals in the aftermath of World War II. A total of 177 defendants were on trial at Nuremberg, including 24 of the most important Nazi leaders. Their (broadly ineffective) defence rested primarily on ex post facto law, that is, the crimes were committed before the laws that governed the trials were in force. But lower ranking Nazis also pleaded what has since been popularly known as the Nuremberg Defence: that they were just following orders and should therefore not be considered guilty of the crimes they committed. Unfortunately for the defendants, the tribunals considered most of the Nazi crimes so heinous that obedience to superior orders did not exculpate and was, at most, a mitigating factor.
The Nuremberg Defence is of course primarily applicable to military and other institutional structures, where lower ranking officials find themselves exposed to great personal risk if they were to take it upon themselves to yield to a moral codex that demands they refuse to follow orders. But it can equally be considered in the context of the civil population, whose lives are highly regulated by government under a complex set of laws which may very well collide with what individual members of society considers just or correct.
When considering whether to follow a law, as in all other human action, individuals weigh the benefit against the cost. If you consider the law just, the choice is easy – but what if you disagree? You must now consider the benefit of compliance (not exposing yourself to sanction from the government) vs the cost (having to follow a law you disagree with) and weigh those by the probability of getting caught. Hence, many break minor traffic laws, whereas tax laws, even if most would prefer to pay less tax, are generally followed.
In most cases, the sacrifice from following an immoral law is borne primarily by the individual. But compliance also has a societal cost: as a general population, we are much easier controlled if we are unlikely to stand up against laws we consider to be wrong – and nowhere is that more obvious than in relation to the draconian lockdowns that have plagued the world in the last 18 months. We have been ordered to stay indoors, cease seeing our friends and families, close our businesses and wear masks, all in the name of protecting ourselves and others against Covid. But the rules are guided by the government’s assessment of risk and reward, which ranks various considerations very differently from what individual members of the public might.
Early on in the pandemic, even if many of us instinctively disagreed with lockdown, we tended to follow the rules: scared of sanctions, we considered the risk of non-compliance to outweigh the benefits. But as time has passed, the cost of sticking to the rules has increased: not only have we not lived our lives for more than a year, but a second, and arguably more important, costs has emerged: the extraordinary level of compliance with lockdown has emboldened the government to persist with what was initially introduced as a very short-term policy. We can only fear what other applications the now normalised lockdown tool will be used for in the future.
So, we must stop pleading the Nuremberg Defence and stand up to this authoritarian government. When the choice is between acting morally or safely, it requires strong moral backbone to choose the former, but the time has come to be bold. It is no longer safe to follow the rules: it places our future at great peril. Most of us cannot do much, because the majority of restrictions have always been on businesses, who were told to stop taking our custom at penalty of large fines. But everyone can do something, and nothing is easier and more powerful than to put down that ever-present physical manifestation of compliance: the mask. “No government knows any limits to its power except the endurance of the people,” said the great Lysander Spooner. We are not asking for a revolution (although one may soon be needed), but it is time to firmly tell the government that we have had enough!