Introduction

Should Adolf Eichmann have been found guilty of the crimes with which he was charged and for which he was condemned in 1962 by the court in Jerusalem? Were the eighteen Nazi leaders condemned by the International Military Tribunal in Nuremberg similarly guilty? Were the three defendants – Fritzche, von Papen, and Schacht – who were acquitted by that tribunal innocent? Seventeen minor subordinates from Auschwitz were pronounced guilty at the Frankfurt trial, while others were acquitted. On what logical or legal principle were those and other verdicts based?

This question persists because in every case the accused made and continue to make what appears to be a perfectly sound defense: They are not guilty because they were merely subordinates in large organizations (bureaucracies) – “cogs in a machine” – who were obeying “superior orders.” In all the trials noted above, the defendants repeatedly made this point.

Perhaps even more interesting, the bureaucratic status of the defendants has often been acknowledged by the judges presiding over the trials, by the prosecuting and defense lawyers, by the jurors (when they were used), as well as by the scholars and reporters writing on the trials. All these people struggled with the problem they thought was posed by that subordinate status. They did so because they all more or less explicitly based their reasoning on a common theory of bureaucracy.