When one’s moral code would override an oath

Imagine this: You’re a farmer living an idyllic life with your young wife and daughters in the Austrian hillside. Nazism has taken over the country. For a while, though, you and the countryside have been left behind in peace. You hate what Adolf Hitler is doing, but he and his actions are not within the orbit of your life. Finally though, in 1943, you and all the eligible males in your village are conscripted into the army. You attend basic training. It’s uneventful — you don’t have to kill. 

Maneuvers and learning the basics of war, however, are over — it’s time for you to actually do battle, and you well know the horrible consequences of what portends for you or whomever faces you. You must help advance the violent, genocidal, steamroller of Nazi Germany, even though it clashes with everything that you believe you are. You are a devout Catholic, and you shudder at what is going on. You detest Hitler for what he is. Still, being an Austrian and given Austria’s annexation, the Anshluss (you were the only one in your village to vote against it), and your conscription, you must sign a loyalty oath to Hitler. Your refusal to sign almost certainly will be lethal — you will be executed, hanged to death. And what of your wife and children? They will be shunned by your neighbors, sometimes with violence. 

As a criminal defendant incarcerated in Berlin, you are assigned a lawyer. Assume that he’s totally in your corner, questionable as that might seem at the time. He begs you to take the loyalty oath. He tells you that, since you are a genuine conscientious objector, you won’t be compelled to serve in active combat and likely will end up in alternative service as a hospital orderly or with some innocuous role. You will never need to point a gun at “Hitler’s enemies,” and will never have to abandon your children who, if you do not take the oath, will be fatherless. Maybe, even, to make this clear cut, the Waffen-SS actually confirms that you’ll be exempt from front-line service. 

 This scenario, other than the imagined promise from the SS, is the story told by the film “A Hidden Life” (2019). This essay is not a movie review, but rather an inquiry into how the self-proclaimed moral individual — in this case, say, you or I — would react to this movie’s scenario, one based on the true story of Franz Jagerstatter from the village of Radegund. Jagerstatter, to put this in perspective, later was beatified by the Church in 2007, many years after his execution.      

The Hitler loyalty oath is hardly the same as the oath an American soldier was required to take when the military draft was mandatory. When Muhammed Ali (neé Cassius Clay) refused induction into the armed forces during the Vietnam War at penalty of criminal prosecution, he wasn’t refusing allegiance to the United States (or even to Lyndon Johnson’s directives). In fact, Ali asked to serve as a conscientious objector. But when the Selective Service refused to grant that request, Ali refused to take the Soldier’s Oath — he was a minister in the Nation of Islam, and his religion did not hold that the Vietnam War was a “just war.” He refused to fight. He was convicted and sentenced to five years for failing to submit for induction (although he never went to prison while appeals were pending), he was fined and his license to box was revoked while he was in his prime. Yes, his conviction later was reversed, but how could he have known that going in?    

Ali and Jagerstatter faced far different punishment in two very different times. But the movie made me think about the compassion and bravery it takes to adhere to one’s personal moral beliefs. Take those oaths that carry far less penalty — there are the informal oaths we take every day, assuring a friend we will keep something in confidence. Or the more formal oaths required by one’s profession — lawyers and priests must remain silent even if their client/penitent told them they committed a murder for which another is serving time. One could simply not be a lawyer or a priest without agreeing to those oaths, even if one disagrees with them. Imagine, being bound to secrecy when you know someone who is innocent will rot in a prison cell. But again, the penalty? Don’t become a lawyer or a priest — hardly the same circumstances as what Jagerstatter faced.

Could I have done what Jagerstatter did? Could I have done even what Ali did, with a prison sentence sure to follow? It’s easy, living the safe life in our easy chairs, to take the moral high ground: “I would never take an oath that violates my religious beliefs!” But in the thick of it, I’m not so sure. Would you be? 

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is an adjunct professor at both Fordham and Cardozo Law Schools. He recently published “I Swear: The Meaning Of An Oath” (Vandeplas Publishing, 2019).