Reductio ad Hitlerum: Trumping the Judicial Nazi Card

Abstract

Hitler was a vegetarian, as was Gandhi. Therefore, Gandhi, like Hitler, was evil.

The absurdity of the above statement will be apparent to most readers. Indeed, the ability to understand why these premises do not lead to the conclusion following them is fundamental to being able to understand or perform legal analysis. Nonetheless, judicial opinions commonly include arguments that compare people and institutions with honorable intentions and authority derived from legitimate sources to Hitler, other Nazis or Nazism. For example, in considering whether a Miami police department acted lawfully when it randomly boarded buses and asked passengers for permission to search their bags for drugs, a state court judge reminded readers that Florida was not “Hitler’s Berlin, nor Stalin’s Moscow, [nor]...white supremacist South Africa.” Justice Thurgood Marshall found this language so convincing that he quoted it in a dissenting opinion when the Supreme Court subsequently addressed the legality of this police technique. Dozens of similar examples exist in American judicial opinions.

This article has two goals. First, to analyze the reductio ad hitlerum fallacy, which is a pun of reductio ad absurdum coined by ethicist Leo Strauss for the fallacy that calls on the reader to condemn anything that has a common attribute to Hitler. Second, this article seeks to help readers develop a framework for using the tools of classical logic to analyze arguments and recognize fallacies (including reductio ad hitlerum) as a way to improve legal argumentation and critical thinking.

Keywords: logic, rhetoric, reductio ad hilterum, fallacy, Teninbaum, Suffolk

JEL Classification: K10, K14, K19, K40, K41, K49