The Storrs lectures: Liberals and romantics at war: The problem of collective guilt

In this Article based on his Storrs Lectures given in November 2001, Professor Fletcher ventures a new approach to collective responsibility and guilt. He grounds his argument in the Romantic tradition and criticizes what he calls the prevailing liberal orthodoxy in the law schools. The Romantic tradition, he claims, supports a robust theory of the nation as a complex organism. Drawing on contemporary philosophical sources, he argues that nations can have collective intentions, engage in collective actions, and bear collective guilt for their wrongdoing. He points to the four crimes defined by the ICC Statute as an instantiation of this collective guilt. Each of these crimes, he argues, presupposes collective as well as individual action. The implication of this thesis is that the collective guilt of nations should mitigate the individual guilt and punishment of defendants. As against this humanistic theory of collective guilt, he warns against two excesses of Romantic thinking in morality and law: (1) permitting the transfer of guilt from generation to generation, and (2) excusing wrongdoing on the grounds of authenticity and sincerity. To rescue the theory of collective guilt from these dangers, he probes the differences among responsibility, shame, and guilt, as they are understood both individually and collectively. Collective guilt, he claims, is justified on classical and biblical assumptions that continue to shape Western intuitions of justice. He concludes by arguing that collective guilt is reflected in numerous social institutions ranging from attitudes toward punishing Holocaust denial to the Japanese renunciation of war.