A nasty example

Let me propose a diagnosis. The two theories fail because willful ignorance is neither knowledge nor negligence. Consider an example - a sinister example, but one that I find particularly thought-provoking.

In the early days of the Third Reich, Albert Speer was Hitler’s official architect. Later, he moved into more essential posts, and eventually he became the minister of armaments during the war, responsible for, among other things, producing war materials through slave labor in concentration camps. Unsurprisingly, the Allies put Speer on trial in the first tier of Nuremberg defendants, as a member of the leadership of the Third Reich.

Speer stood out at the trial, because he was the only defendant who insisted on taking full responsibility for the crimes of the Reich. He accepted responsibility, he explained, in order to ensure that the German people would not suffer any more than they already had for the sins of their leaders. Probably because of his confession, Speer received a twenty-year sentence, where others no guiltier were hanged. After his release from Spandau Prison, Speer published a best-selling memoir, Inside the Third Reich, and followed it up with two more volumes of recollections. In the books, he once again took full responsibility for the crimes of the Third Reich, and cemented his reputation as, in the sarcastic title of a recent biography, “the good Nazi.”^[413]

Let me be a bit more specific about what Speer did and did not confess to. Four points stand out:

1. He accepted full responsibility for the crimes of the Reich.

2. He denied, however, that he actually knew anything about the Final Solution.

3. He also acknowledged that he could have known, but he chose not to know in order to keep his conscience clear.

4. He insisted that his willful ignorance was just as bad as knowledge, and thus he refused to let himself off the hook.

For example, Speer recalls that in 1944 a friend of his warned him “never to accept an invitation to inspect a concentration camp in Upper Silesia.

Never under any circumstances.”^[414] Speer described his thought processes as follows:

I did not query him, I did not query Himmler, I did not query Hitler, I did not speak with personal friends. I did not investigate - for I did not want to know what was happening there... From that moment on, I was inescapably contaminated morally; from fear of discovering something which might have made me turn from my course, I had closed my eyes... Because I failed at that time, I still feel, to this day, responsibility for Auschwitz in a wholly personal sense.^[415]

For Auschwitz was the very camp Speer’s friend was warning him to avoid.

The interesting thing about Speer is that he was almost certainly lying about how little he knew. Indeed, journalists and historians have made a minor cottage industry of smoking out Albert Speer’s lies.^[416] Speer’s response, to the end of his life, was to insist that he really didn’t know.

What makes this interesting, of course, is that Speer also insisted that whether he knew or not is irrelevant, because his guilt was the same whether he knew or not. Then why insist on ignorance? The legal theorist Leo Katz suggests that Speer “was being coy, was playing Marc Anthony by saying he was not seeking to excuse himself while going to such extraordinary pains to establish his willful ignorance. He really did think it mitigated his guilt.”^[417]

I am sure that Katz is right about Speer being coy. I am less certain that Speer really thought willful ignorance mitigated his guilt. Albert Speer was a master of public relations. From Nuremberg on, he instinctively understood that the best way to dodge responsibility is to assume it - but not to assume responsibility for any particular heinous deeds. Whether or not he himself believed that willful ignorance mitigated his guilt, I am sure Speer understood that the world at large believes it.

Or rather, he understood that the world at large can’t make up its mind. The paradox is that we seem to accept his subtext, “I’m not as guilty as if I really knew!,” but only because his text insists that he is as guilty as if he really knew. We nod yes when Albert Speer writes, “I was inescapably contaminated morally,” and then we forgive him, at least in part.

I think that Leo Katz draws the wrong conclusion from this example. He argues that the forgiveness, the subtext, reflects our deepest moral under­standing, and thus he concludes that willful ignorance really is a proper moral excuse. But why assume that we actually believe the subtext, when we nod yes to the text? Perhaps we do absolve Albert Speer, at least in part. But we also convict criminals on willful-blindness instructions. Curiously, Katz overlooks this fact. He writes that willful ignorance excuses “often work at a legal level... The law here as so often is a good gauge of our moral intuitions. So I rather think the ruses work at a moral level as well.”^[418] Katz relies on an example to demonstrate that willful-ignorance excuses work at a legal level - the criminal defense lawyer who uses a “Don’t ask, don’t tell” strategy for circumventing the ethics rule against knowingly helping a client commit perjury. This is an example we have seen before. It’s an apt example, for this is one place in the law where the “ostrich excuse” does work. The bar’s legal ethics rules do not require a lawyer to investigate the client’s story, nor do they incorporate the doctrine that willful ignorance equals knowledge.^[419] But of course the criminal law does incorporate that doctrine, and that makes the legal ethics rules exceptional within the law. For some reason, Katz overlooks the fact that in the criminal law, willful ignorance is ground for conviction, rather than for acquittal.

The proper conclusion is that the law speaks with a divided voice about willful-ignorance excuses. If Katz is correct that the law is a good gauge of our moral intuitions, it would follow that morality speaks with a divided voice as well. The question is why.^[420]