Liberals and romantics at war: the problem of collective guilt.

• Author: Fletcher, George P.
• Position: The Storrs Lectures

1. INTRODUCTION

   Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. (1) War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo.... So when in doubt, Send the Marines!" (2)

   Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. (3) Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective--these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning.

   Revolutions and wars of self-determination have always appealed to Romantics. (4) In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. (5) The War of 1848 brought Francis Lieber face to face with the glory of battle. (6) The Spanish Civil War had a similar appeal in the twentieth century. (7) As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm, ... not an enthusiasm for killing or loot, ... but for something far more uplifting and worthy." (8) The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time.

   In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove (9) and Apocalypse Now, (10) the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan (11) and in Tom Brokaw's bestseller The Greatest Generation. (12) Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. (13) It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. (14) The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way.

   Whatever may happen in the culture at large, the law has never been a particularly hospitable place for poets and Romantics yearning for peak moments of experience. Perhaps some lawyers who litigate grand political issues experience something like Romantics going to war. But by and large, we in the academic world are committed to the orderly life and, at least on the surface of things, to a set of ideas that I describe as the opposite of the Romantic ethic. We advocate the principles of voluntary choice, methodological individualism, and individual responsibility. All challenges to the hegemonic way of thinking are simply accommodated as variations on individual needs and preferences. For want of a better term, I refer to this collection of ideas as liberalism. Not many would dissent from the claim that the dominant culture of the law school world is this ever-yielding, all-encompassing form of liberalism--the "L" word used, of course, in the philosophical rather than the political sense. (15)

   There are variations of liberal jurisprudence but there is no school of Romantic jurisprudence. Admittedly the "R" word crops up here and there--in works by James Whitman on early nineteenth-century German attitudes toward Roman law, (16) Steve Shiffrin on the First Amendment, (17) and Vivian Curran on the disputed distinction between common law and civil law. (18) A Lexis search reveals about 500 documents in the year 2001 containing the word "liberalism." (19) In the entire database of law reviews, there are about the same number of references to "Romanticism," and often the use of the word is incidental or dismissive, as in the expression "naive Romanticism." (20)

   A single methodology dominates the legal discourse of our time. Whether the talk is of law and economics, of constitutional law, of corrective justice, or of human rights, the methodology remains the same. What counts is individuals, their rights, their preferences, their welfare. (21)

   Perhaps we are missing something by ignoring the impulses that led Romantics to worship an expansive self that could identify with the entire nation as an actor in history. The Romantics in Germany, in France, and in England--though there were ample differences among them--created an alternative to methodological individualism. They developed a way of thinking about the self and about the nation that challenges us to reconsider liberal assumptions about both the virtues and the vices of collective entities of which we are a part. Of all the attributes of collective entities, the phenomenon of collective wrongdoing offers the greatest challenge. I want to take seriously the possibility that entire bodies of people, in particular the nations of which we are a part, can be guilty for the crimes actually carried out by a few. It is obvious that this possibility of collective guilt flouts liberal premises, which hold that only individuals can have the mens rea and tender the malice necessary to be held guilty for wrongdoing.

   Though I probably have more sympathy for collective guilt than can be found in the current academic culture, I conceive of this Article as devoted not to a thesis but to a problem. The problem is whether it is acceptable to ascribe guilt to collective actors and particularly to nations like the United States, France, and Germany. The problem, I argue, is an outgrowth of larger conflict between the mentality of liberals and the sentiments of Romantics. For liberals and Romantics at war, this is one of the primary intellectual fields of battle. As the fight over collective guilt is won or lost, so are larger stakes decided: Is the individual the ultimate unit of action and responsibility, or are we, as individuals, invariably implicated by the actions of the groups of which we are a part?

   1. Defining Romanticism

      At the outset, I should clarify some of the basic terms and distinctions that accompany us in this exploration of the problem of collective guilt. The most ambiguous concept of all lies at the foundation of the inquiry, namely, the idea of Romanticism. (22)

      A good way to situate the contested concept of Romanticism in intellectual history is to see it as one pole in a larger set of oppositional concepts. On the one hand, we have stability, order, universality, and the boredom of the predictable and domestic. On the other hand, we have revolt, disorder, partiality, and the intense flames of lust and creativity. This is, of course, the way the Romantics might describe the opposition. The devotee of the Brandenburg Concertos would presumably use more honorific terms to capture the beauties of classicism. (23) These differences, expressed in the opposition between Bach and Beethoven, Rembrandt and Delacroix, are of course disputed, but for the purposes of this Article, I need not improve on Isaiah Berlin's breathtaking account of the German Romantic reaction to the French Enlightenment. For Berlin, the core of Romantic thinking lies in the expressive self insisting on its own distinctiveness and value. (24) The uniqueness of each person, and by analogy, of each national culture, leads to a rejection of the Enlightenment ideal of a universal culture based on reason. (25) The French philosophes held that all problems are soluble, all values comparable, all issues amenable to the solvent of universal reason. (26) In general terms, the German Romantics from Hamann (27) and Herder (28) to Schleiermacher (29) and Schiller (30) shared an aversion to this flattening of cultural particularities. Their common denominator stands for the irreducibility of different selves and the incomparability of distinctive cultures. The subjective and the particular take precedence over the objective and the universal.

      Expanding on Berlin's preoccupation with the Germans, we should think of Romanticism, then, as both a historical and cultural phenomenon and as a methodology. The historical phenomenon made its appearance at various stages in the late eighteenth century, primarily in England and France as well as Germany. In England, the poets led the way under the banner of Wordsworth's dictum that poetry is "the spontaneous overflow of powerful feelings." (31) Rousseau's views on the social contract came at our problem of collective thinking earlier and from a different angle. (32) Eugene Delacroix, born at the time that Wordsworth was writing, brought the spontaneous expression of feeling to the canvas. (33) In Germany, the movement took different contours and expressed itself in different ways. Johann Georg Hamann, born in 1730, was a critical early figure in the German reaction against the French Enlightenment. (34) Though he was good friends with Immanuel Kant, Hamann rejected the philosophy of reason and urged instead an antirational emphasis on holistic religious experience. (35) Kant himself became a transitional figure because his emphasis on the autonomy of the self lent itself...