Episode Summary
Executive Summary: Michael Shermer interviews law professor Lawrence Douglas about his book The Criminal State, tracing how states can become criminal when all major institutions are bent to atrocity. They move from Hobbes, war, and sovereignty to Nuremberg, genocide, Eichmann, Demjanjuk, and the limits of international justice, emphasizing the difference between bad regimes and true criminal states.
Main Topics: What a ‘criminal state’ is (Priority: 5/5): Douglas distinguishes criminal states from merely bad regimes: in criminal states, the military, bureaucracy, and courts are all deformed toward criminal ends, unlike liberal democracies or imperfect states where politics and law still function. Hobbes, violence, and the need for the state (Priority: 5/5): The conversation uses Hobbes’s state of nature to explain why states emerged as pacifiers of violence, shifting conflict from private self-help to legal order and security, while also transferring violence into interstate relations. Nazi Germany, Nuremberg, and the shift in international law (Priority: 5/5): Nuremberg is presented as the first major attempt to hold leaders criminally responsible, initially centered on aggressive war but later helping pivot international justice toward crimes against humanity and genocide. Genocide, legal definitions, and the role of Eichmann (Priority: 4/5): The Eichmann trial and the Genocide Convention helped elevate genocide as a distinct international crime, while also showing how Holocaust atrocities became central to postwar moral and legal consciousness. The Demjanjuk case and prosecuting lower-level perpetrators (Priority: 4/5): Douglas explains how the Demjanjuk proceedings changed German law by treating guards at extermination camps as accessories to murder, even without proof of a specific hands-on killing act. Historical comparison and moral restraint (Priority: 4/5): The discussion repeatedly warns against false equivalence—e.g., comparing Vietnam to the Holocaust or calling the U.S. a criminal state today—while acknowledging that states can commit grave crimes without collapsing into total criminality.
Key Arguments: A criminal state is not merely authoritarian or abusive; it is a state whose entire apparatus—courts, military, bureaucracy—has been repurposed for criminality. Hobbes’s core insight still matters: states reduce everyday violence, but interstate anarchy can recreate a state of nature between nations. International law before World War I largely accepted sovereign prerogatives, including the right to wage war and rule subjects without outside scrutiny. Nuremberg began by targeting aggression, but the postwar legal order increasingly focused on crimes against humanity and genocide because these better captured Nazi atrocity. The difference between illegal and criminal matters: illegal acts can trigger sanctions; criminal acts create individual liability and possible imprisonment. Hannah Arendt’s “banality of evil” is too strong if taken to mean perpetrators had no moral awareness; many were opportunists, but they still knew enough to be guilty. Demjanjuk’s case showed that even low-level camp guards could be prosecuted as accessories to murder because the camp’s entire purpose was extermination. The Holocaust and later genocides changed international law by making systematic civilian extermination a central crime, not just a wartime side effect. Judging past empires or wars requires caution: moral hindsight is necessary, but anachronistic equivalence can erase real distinctions in intent and scale. International criminal justice is imperfect, but it is better than an empty system: even limited accountability can matter symbolically and legally.
Data Points: Nuremberg major defendants: 22 - Major Nazi functionaries tried in the first Nuremberg trial Nuremberg subsequent trials: 12 - U.S. military follow-on trials in the same courtroom International crimes at Nuremberg: 3 - Crime against peace, war crimes, and crimes against humanity Kellogg-Briand Pact year: 1928 - Interwar treaty renouncing war as an instrument of policy Demjanjuk age at later sentencing: About 92 - German court conviction led to a suspended sentence due to advanced age Demjanjuk prison sentence: 5 years - German court sentence, later effectively suspended Treblinka survivors: About 50 - Illustrates how hard it was to prove specific acts at killing centers Treblinka victims: Close to 800,000 to 900,000 - Estimated number of murdered victims cited in discussion Genocide Convention year: 1948 - First convention passed by the United Nations Genocide term coined: 1944 - Raphael Lemkin coined the term during World War II UN discussion on groups: Political groups excluded - U.S. favored inclusion; Soviet Union opposed it War manifesto database: Over 400 documents - Hathaway and Shapiro analyzed state war justifications Top war justifications: Self-defense 69%; treaty obligations 47%; tortious injuries 42%; laws of war violations 35%; balance of power 33%; trade interests 19% - Content analysis of war manifestos cited in the conversation
Pivotal Quotes: "What protects us from violence in civil society? What protects us from the violence of our neighbors? And his argument is: it's the state." — Lawrence Douglas: Explaining Hobbes’s rationale for the state as a pacifying force "One of the things that really distinguishes a criminal state from just like a bad regime is basically that every state apparatus has been deformed." — Lawrence Douglas: Defining the concept of a criminal state "The trial was going so well until they showed that damn film." — Hermann Göring: Göring’s reaction after the prosecution showed footage of Nazi concentration camps at Nuremberg
Implications: Listeners get a framework for distinguishing authoritarianism from true state criminality and for understanding why international justice focuses on both elite planners and lower-level perpetrators. It also shows how law evolves in response to atrocity, but remains politically constrained and incomplete.