This article is reprinted with permission from the November 19, 2002 edition of the New York Law Journal. © 2002 NLP IP Company. All rights reserved. Further duplication without permission is prohibited.

Romantics at War: Glory and Guilt in the Age of Terrorism
By George P. Fletcher
Reviewed by David Wrobel

These may be lonely days for Professor George P.  Fletcher, the Cardozo Professor of Jurisprudence at Columbia University.  Amidst the saber-rattling and cries for blood in America’s “war on terror,” Fletcher has written this scholarly book, a thoughtful analysis of the legal, cultural and philosophical issues we face generally in times of war, and particularly in a post-September 11 world. Fletcher is seeking “clarity of thought” and is concerned with the “conceptual morass” we will find ourselves in if we do not develop a coherent intellectual approach to the issues before us.  Something makes me think that this task is not at the top of George Bush’s To Do list. 

Fletcher is a very serious academic who has the ability to support his arguments with a remarkable command of disparate sources.  He seems to move effortlessly from the subject of  jurisprudence to philosophy, literature, the Bible and history.  A great deal of the book is committed to examining the conflicting world views of  “liberalism” and the “Romantic” reaction that it engendered.  Fletcher’s thesis is that the intellectual battle between these schools of thought is not over, and that this accounts for some muddled thinking

For those of you who missed out on a good liberal arts education — and for those of you who were not paying attention the first time around  — a few words of explanation are probably in order.  The Enlightenment of the 18th Century created the liberal (with a small L) intellectual and political traditions that Americans hold most dear.  Our founding fathers were children of the Enlightenment, and the Declaration of Independence and Constitution are primary examples of  liberal thinking.  The American legal system is rooted in liberal notions of equality and individual rights.  Liberals believe in the overwhelming power of reason, and fundamentally assume that all people, deep down, think the same way.

In response to the Enlightenment came the Romantic movement, first in the fields of art, writing and music, and eventually in politics as well.  In reaction to the cold cerebral world of the Enlightenment, Romanticism offered emotion and passion.  In the political realm, Romanticism  influenced the development of Nationalism, with its attendant concepts of “glory,” “honor” and “Country.”  Romantics emphasized the uniqueness of each culture and rejected the universalist themes of the liberals.

Whereas liberals value, respect and judge the actions of individuals, Romantics focus more on nations and groups.  Liberals do not find war to be particularly tasteful, but Romantics, caught up in nationalistic pride, will gloriously march off to fight for grand causes.  Interestingly, Fletcher describes Al Gore as a stereotypical liberal, concerned with the nuances of public policy.  George Bush, particularly since September 11, is seen as a Romantic, locked in an epic  battle of good against evil.

Because the fight between liberalism and Romanticism has never been fully resolved, we are seeing the consequences today.  The Romantic in each of us is attracted to the idea of a war against terror (or Saddam Hussein), but our liberal selves have (or should have) problems with the full consequences of this thinking.  While we may be attracted to the “glory” of a “just war,” Fletcher warns us not to forget our ideals of justice in the process. 

Surprisingly, Fletcher is not entirely dismissive of Romantic notions.  He recognizes that one particular Romantic concept, the idea of  “collective guilt,” may have some merit, even though it has traditionally been anathema to liberals.    

Because Romantics believe that a whole nation can act gloriously, they necessarily believe that a nation can be collectively “guilty.”  It is a distinctly Romantic notion to hold the German people “guilty” for the atrocities of the Holocaust (and, by the same token, the American people “guilty” for the cruelties of Slavery.)  But problems arise when you try to mete out justice on a national level.  Is it fair to hold Germans born after the war responsible for the acts of their parents and grandparents? Probably not.  On the other hand, should we excuse every individual Nazi (or slaveowner) from personal guilt provided he “truly believed” he was acting rightly and lawfully in a society with warped values?  That is a road very few would want to take.

The liberal view is to hold individuals – and not nations — accountable for their actions. At least since World War II, this liberal view has prevailed in international law and thus it was individuals who were tried for war crimes at Nuremberg .  The infamous “Nuremberg Defense” (“I was only obeying orders”) was soundly rejected. 

Fletcher proposes a way to bridge the gap between the Romantic and liberal views of collective guilt.  He asks us to consider that most war crimes are conducted in a collective fashion, through the organized armed forces of a nation and in the name of that nation.  Accordingly, there should be some “distribution of guilt” between individual war criminals and the countries in whose name they committed atrocities.  How this is to work in practice is not made entirely clear.

At its core, this book is concerned with intellectual integrity. Thus Fletcher’s harshest words are aimed at the Bush administration’s handling of the captured Taliban fighters who are now being held in Guantanamo Bay, neither as prisoners of war (entitled to the benefits of the Geneva convention) nor as criminals charged with crimes (and thus entitled to jury trials).  These individuals are being held as  “unlawful combatants,” a dubious designation at best, and they can supposedly be tried before Military Tribunals, which Fletcher argues have no precedent in either Constitutional or international law.  Fletcher is particularly annoyed that “supposedly liberal” professors of Constitutional law, Lawrence Tribe of Harvard and the University of Chicago’s Cass Sunstein, have not called this detainment what it is: a flagrant violation of the Constitution.

They say that in war truth is the first casualty.  Surely intellectual integrity runs a close second.