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George Wharton Pepper speech: "The lawyer's approach to post war problems." [1] (1941)

handle is hein.ali/hrbor605504 and id is 1 raw text is: THE LAWYER'S APPROACH TO POST-WAR PROBLEMS By HON. GEORGE WHARTON PEPPER Editor's Note: In his address in behalf of the American Law Institute, before the Assembly of the American Bar Association in Indiana folis, Ex-Senator George Whar- ton Pepper referred to the Institute's project of trying. to formulate a universal Bill of Rights, which might be commended to al Nations-as an integral part of the set- tlement for an enduring peace based on law and justice. The Institute's plans for such a task are of necessity still in the making; but, at the request of the JouRNAL, Sen- ator Pepper has written for us this earnest and explora. tory article, in an attempt to envision the background against which any -such project for a universal assurance of the fundamental freedoms would have to be cast. T is not-too soon to c.onsider plans for a durable peace. This appears to be generally conceded. If the present orgy of destruction lasts long we shall not be able to preserve sanity unless we are at least thinking about peace. If it unexpectedly comes to an abrupt end we must not be caught unprepared. The consideration of post war plans, howei ,er ought not at this time to mean the advocacy of ary particular plan. There are too many unknown quantities in the problem. The approach, to be intelligent, should be non-controversial. Accordingly a lawyer's most useful contribution at present would seem to be an'ittempt to formulate the issues which sooner or later will have to be faced and decided. Such a contribution may properly begin with a visualization of the conditiops under which authoritative post-war decisions will have to be made. Planning for peace presupposes that Hitler will not be in a position to dictate its terms. The only peace worth planning is one which will come when Germany is self-conquered by exhaustion or has yielded to su- perior force. If Germany is thus exhausted or subdued by force the peace (as far as she is concerned) is bound to be a peace dictated to her. If the war ends in a draw the peace will follow an unpredictable agreement of some sort. If a dictated peace should be made, the first question that suggests itself concerns the spirit in which its terms will be conceived. As to this there are three possibilities. At one extreme there is the spirit engendered by vengeance and fear: Germany must once and for all be put in irons or dis- membered and eliminated as a state. At the other ex- treme is the spirit of the Golden Rule: Germany must be treated as the victors would like to be treated if condi- tions were in reverse. In between these extremes there is a condition of mixed emotions in which vengeance is disavowed but not quenched; in which fear becomes prudence; and in which there are minor concessions to good will. As my present purpose is merely to frame issues but not to attempt to argue them, I do not comment on the relative desirability of a peace of hatred, a peace of charity and a peace of compromise. My reading of his- tory, however, suggests that a peace of hatred, although responsive to popular feeling, is always a breeder of subsequent wars, that a peace of charity has never been given a fair-trial and that a peace of compromise is the line of least resistance for treaty-makers to follow. How- ever loth we may be to admit that a worthy ideal is impracticable, I suggest that a peace of compromise is what we shall be in for unless in the interval the people who decide great issues shall have been transfigured by suffering. If there is any realistic alternative to com- promise it is not charity but hatred. The probability of a peace of compromise is increased when one considers who will be the parties to the ulti- mate agreement. If there is a blanket treaty of the Ver- sailles type, all states which existed at the beginning of the war will be signatories. On the assumption of Ger- man collapse, the states which have had governments in exile will presumably be represented by the men who have maintained governmental forms in the in- terval. This, however, is not a very strong presumption. In any particular state it may well be that a popular uprising will immediately follow an armistice and that an entirely new governmental structure will be reared. This is suggested by what happened in 1918 in the case of no less than eighteen governments. Since such revolu- tions are recognized possibilities it may not be amiss to speculate about the new constitutions that would in that event be proclaimed. If there were anything like a gen- eral concensus as to the rights and liberties which should be guaranteed by such national constitutions the task of the ultimate treaty-makers might be made much less difficult. To attempt to formulate and propose a uni- versal bill of rights is obviously an ambitious under- taking. It may, however, prove to be worth while. At worst an earnest and thoughtful consideration of such a subject could do no harm. In addition to states now represented by governments in exile, Sweden, Spain, Portugal and Turkey will DEcEmBER, 1941 VoT. 27

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