The Morality of Violence

By Timothy Foote

NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY by Telford Taylor, 224 pages. Quadrangle. $5.95.

AMERICAN VIOLENCE, A DOCUMENTARY HISTORY by Richard Hofstadter and Michael Wallace. 478 pages. Knopf. $10.

Men who take up arms against one an other in public war do not cease on this account to be moral beings, responsible to one another and to God. U.S. Army regulations, 1863

The usefulness and morality of violence at home and in Viet Nam have become dreadful, Siamese-twin preoccupations of a divided American consciousness. A corrosively partisan debate concerning them has just been joined by two scholar-essayistsPulitzer prizewinning Historian Richard Hofstadter, who died last month after completing this volume with the help of a young colleague, and Columbia Law Professor Telford Taylor, 62, who served with the rank of brigadier general as chief U.S. counsel at the Nuremberg Trials.

Being a lawyer, Taylor is concerned with precedent. Being a humanist, he took seriously Justice Robert Jackson's famous Nuremberg remark that the example of a restraining law then applied to the Nazis would serve no useful purpose if it was not used to condemn aggression "by any other nations, including those which sit here now in judgment." Since alleged U.S. aggression in Viet Nam has lately been cited against the U.S. under the Nuremberg precedent by American soldiers refusing to fight, Tay lor set out to re-examine the war-crime concept with a view to fixing the Viet Nam War and its conduct by the U.S. within the framework of the laws of war.

He will no doubt disappoint extreme hawks and doves alike because he decides that the law could probably never determine satisfactorily which side committed aggression (too many technicalities both ways). On the often-raised question of constitutionality, Taylor offers no solace to doves. After reviewing the Tonkin Gulf Resolution, the Constitution and U.S. ratification of the U.N. Charter, he suggests that the war is most probably legal in U.S. termsmainly on the basis of clearly demonstrated congressional intent to help President Johnson pursue it. But after sifting a number of cases, including the events and trials relating to Song My, Taylor concludes, that the U.S. seems to be committing war crimes that violate legal precedents established by the Geneva Conventions and the 1956 Army Manual. Taylor's concern is mainly My Lai-like incidents, the killing of prisoners and destruction of villages suspected of harboring Viet Cong.

Assigning Responsibility. The guilt of common soldiers and junior officers, according to Taylor, depends largely on whether or not their acts are consistent with widespread battle practiceregardless of official orders. If they are consistent, then responsibility may move up as high as the commanding general. Taylor cites the case of General Tomayuki Yamashita, commander of Japanese forces in the Philippines during the chaotic final stages of World War II. Yamashita had given orders against unnecessary killing, but because he failed to prevent it, a military court tried him and put him to death. Taylor suggests that a U.S. tribunal composed of officers and civilians take up alleged Viet Nam war crimes and assign responsibility. The Army's moral health, he asserts, will not be recovered unless it is willing to judge its own behavior by the "same standards applied to Tomayuki Yamashita 25 years ago."

It does not require blind patriotism or total cynicism to boggle at the possibility of, say, General Westmoreland haled before such a bar of military justice. But Taylor's findings, like the statement of many a Supreme Court decision, are morally compelling, because of the lore and logic cited to support them. Beyond its direct application to Viet Nam, the book is a remarkable historic study of a line of social thought that many readers will begin by regarding as hopeless and legalistic, and end by admiring profoundly.

Under international law, war itself is not necessarily held a crime, though, as Taylor dryly notes, "war consists largely of acts that would be criminal if performed in time of peace." Accordingly, the whole notion of reducing crime in war is in some ways preposterous. Taylor underlines how limited is the range of war crimes that can be controlled by international conventions. He shows how that range steadily shrinksas weapons become more powerful and less discriminating, and vaster horrors, like the aerial bombing of cities in World War II, become acceptable under the doctrine of response to "military necessity." Yet he traces the concept of military law to ancient human usage, to residual religious and moral restraint, to St. Augustine's first definition of just and unjust war, and to the irreducible pinch of practical sense, decency and self-interest that hold human societies together.

Assessing Violence. There is little room for youthful absolutism in Taylor's philosophy. Under military law, a few humane requirements mainly concerning treatment of civilians, prisoners and hospitals do get "followed more often than not." And for that reason, says Taylor, "millions are alive today who would otherwise be dead." To the notion that such palliatives be junked on the grounds that if war were even worse men might be more inclined to abolish it, Taylor replies simply: "These are counsels of desperation with little logic or experience to commend them."

Richard Hofstadter is similarly tenacious about the need to assess violence with common sense and common humanity, but with only modest hope of dramatic improvement. The rediscovery by the U.S. of its violent past, says Hofstadter in a brilliant 43-page essay that begins his book, is "one of the important intellectual legacies of the 1960s." Though much given to domestic disorders, Americans have long been able to "persuade themselves that they are among the best-behaved and best-regulated of peoples." Lawlessness is customarily linked to political upheaval. Yet the U.S. level of civil violence "that rather resembles some Latin American republics or the volatile new states of Asia and Africa" has coincided with a political stability "that compares favorably with, say, that of England or the bland politics of Scandinavia."

Level of Lawlessness. Hofstadter offers explanations. Except for the Revolution (a triumph) and the Civil War (a disaster), domestic violence rarely had a dramatic or decisive effect on the course of U.S. history. It lacked this decisive effect because it rarely threatened the power of the state, and never came armed with ideology.

In thus attempting to fix the comparative level and significance of U.S. domestic lawlessness among the nations of the world, Hofstadter characteristically insists that it is important to avoid "the conventional and maudlin anti-Americanism of our era, and not to be parochial even in self-denigration." It was with that aim in view that he and Michael Wallace created the balance of the book, a 107-item sampler of violent incidents in U.S. history. They use brief, carefully chosen eyewitness accounts because these are "the kinds of raw materials that historians work with."

Readers, thus challenged to become historians, will find much that is familiar: the Whisky Rebellion (1794), John Brown's Raid on Harpers Ferry (1859), Watts, Robert Kennedy's murder. Some items, like the Hatfield-and-McCoy feud, seem frivolous. Given human nature, a few are totally surprising, among them the riots that regularly took place against whorehouses. The entries tend to blur on continuous reading. But individual portraits of cruelty shock indelibly, and some marvelous dramatic vignettes lodge in the mind: callous young surgeons at a New York hospital in 1788 hanging a human arm in a window and telling a passing child that it was his mother, an incident that touched off a mass riot against grave-robbing doctors; white clouds of flour exploding from tossed barrels outside a warehouse during an 1837 riot against the cost of food; a black abolitionist and a Maryland slave owner come to claim runaways in Pennsylvania, in 1851, having an enraged Bible-quoting beeto prove that slavery is and is not justified by the Scriptures.

It is hard to come away from such episodes without granting H. Rap Brown's flip premise that violence is "as American as cherry pie." It is impossible, though, not to join Hofstadter in rejecting Brown's corollary remark that violence is "necessary." Like other critics of present-day revolutionary chatter, Hofstadter observes that most social reforms in the U.S.including the machinery of the welfare statewere brought about nonviolently or with a minimum, judicious and, above all, patient use of force. Unlike so many establishment thinkers, Hofstadter does not pretend that violence is nifty in Viet Nam but un-American at home. He understands that it can be contemplated as a practical measure. "Violence that would in fact lead to a full realization of the rights of blacks," he writes, "would have a great deal to be said for it."

Apocalyptically Impatient. In the American past, violence, whether for good or bad ends, has sometimes been effective. The practical lesson of the book is that success depends on certain conditionsnone of which exist today: the hope of limiting and localizing the use of violence; the presence of an indifferent or massively approving public, and the use of violence for some precise and possible goal.

Despite the "now" tendencyderived in part from Frantz Fanonto regard violence as psychological therapy and revolution as an act of theater, Hofstadter says, the young, apocalyptically impatient revolutionists operate on the latent, unexamined assumption that "violence will deliver" practical reforms. He urges them to examine that assumption, in part by doing their history homework. "The right of revolution is itself an established and sanctified rationale for violence," he writes. "But the difficulty lies in being reasonably sure, before the event, that the evil will indeed be ended and not exacerbated or succeeded by some equal or greater evil. For this reason all politicians, revolutionary no less than establishment politicians, must work with a terrible calculus in human misfortune." The fallacy of taking Scarsdale for the Sierra Maestra, says Hofstadter, is pathetic. It may prove tragic as well.

qedTimothy Foote

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