On October 5, 1946, Senator Robert Taft spoke at Kenyon College, Gambier Ohio, as part of a three-day convocation on "The Heritage and Responsibility of the English-Speaking Peoples." The topic of Taft's speech was Anglo-American law and justice, a subject he viewed with much concern. Taft began by calling for "equal justice because it is an essential of individual liberty. Unless there is law, and unless there is an impartial tribunal to administer the law, no man can be really free" (p. 157). In recent years, Taft noted, events were weakening these "ideals of justice and equality ... [making] every man ... subject to the arbitrary discretion of his ruler or some subordinate government official" (pp. 160; 157). In domestic affairs, Taft cited agencies like the Office of Price Administration and its control of wages and prices, a situation which involved "granting arbitrary power and denying equal justice" (p. 161). In foreign affairs, he referred to the agreements made during World War II with the British and Soviets at Teheran, Moscow and Yalta--"secret agreements distributing the territory of the earth in accordance with power and expediency" rather than with the "rule of law" (p. 167). But Taft saved his strongest attacks for the recently completed Trial of the Major War Criminals at Nuremberg--attacks that, as one authority puts it, made him "probably the best known" critic of the trial (Bosch, p. 73).
Altogether, Taft had four legal criticisms of the trial, three of which consisted of the use of arbitrary power to curb individual rights, while the fourth was a prediction about the deterrence value of such a trial. First, the trial violated the "fundamental principle of American law that a man cannot be tried under an ex post facto statute." Second, the trial of the "vanquished by the victors cannot be impartial no matter how it is hedged about with forms of justice." Third, the trial was based on the "Russian idea of the purpose of trials, government policy and not justice, having little relation to our Anglo-Saxon heritage." And fourth, Taft warned that the trial and its sentences would not "discourage the making of aggressive war, for no one makes aggressive war unless he expects to win" (p. 168).
In what follows, there is first a double justification for the study, in part through the literature review, which indicates almost no previous evaluations of Taft's criticism, even though his stand was a controversial one; and in part through predictions, which indicates the differences between Nuremberg and its successor in the former Yugoslavia. After that, an analog modality serves as the format of the study, in which documents from Nuremberg--documents which Taft did not have--are used as the most accurate measure for assessing the worth of his criticism. And since this documentation is composed almost entirely of arguments, Rowland's functional approach to evaluation is employed since it judges arguments largely upon field dependent standards, which for the legal field is justice based upon law. Finally, the bulk of the study is an analysis of the Nuremberg documents, using Taft's criticisms as an organizing principle. Legal attacks include four retroactive indictments, victors' vengeance and trials based on government policy as well as a prediction about the deterrent effect of such a trial.
The first responses to Taft's criticisms were largely negative, although whether negative or positive, they "failed to deal squarely with the issues Taft raised" (Patterson, p. 328). Not surprisingly, since it was the middle of the 1946 election, many of the attacks upon Taft came from politicians. William Bosch, whose book addresses the reaction of Americans to the trial, quotes a number of Democrats. Typical was Senate Majority Leader Alben Barkley of Kentucky, who declared that Taft had "never experienced a crescendo of heart about the soup kitchens of 1932, but his heart bled anguishedly for the criminals of Nuremberg" (p. …