Tu quoque

Tu quoque (pronounce to-koh-cue-e)

(1) In philosophy, an appeal to hypocrisy is an informal logical fallacy that intends to discredit the validity of the opponent's logical argument by asserting the opponent's failure to act consistently in accordance with its conclusion.

(2) In international law, a justification of action based on an assertion that the act with which the accused is charged was also committed by the accusing parties.

From the Latin Tū quoque (translated literally as "thou also" and latterly as "you also"; the translation in the vernacular is something like "you did it too", thus the legal slang "youtooism" & "whataboutism". 

An example of the tu quoque fallacy in philosophy

In formal logic, tu quoque is a type of ad hominem argument in which an accused person turns an allegation back on the accuser, thus creating a logical fallacy.  It happens when for example when one charges another with hypocrisy or inconsistency in order to avoid the substantive matter.

Mother: You should stop smoking; it's bad for your health.

Daughter: Why should I listen to you? You started smoking at fourteen.

Lindsay Lohan and her lawyer in court, Los Angeles, December 2011.

The daughter's tu quoque fallacy lies in dismissing or avoiding the argument because she believes her mother is being hypocritical or at least inconsistent.  While both may be true, that has nothing to do with and does not invalidate her argument.  In 2012 Lindsay Lohan tweeted a hint she had some sympathy with the tu quoque defence gambit: "Why did I get put in jail and a nickelodeon star has had NO punishment(s) so far?". 

International Military Tribunal Trial  (IMT) Trial #1, Nuremberg, 1945-1946

At law, the classic tu quoque defense is an attempt by an accused to deny the legitimacy of a charge by alleging those mounting the prosecution committed exactly the same offence and thus stand equally guilty.  An interesting variation was raised by German Grand Admiral Karl Dönitz (1891-1980), appointed head of state in Hitler's will but on trial for his role as head of the Kriegsmarine (the German Navy) between 1943-1945.  Dönitz argued he should be acquitted because the navies of other (victorious) nations had conducted their operations using exactly the same tactics with which he was charged as war crimes but what was novel was the argument that the conduct in dispute (essentially, unrestricted submarine warfare) was, as practiced by both sides, entirely lawful and within the rules of war at sea.  A great many British & US sea captains and admirals agreed (“admirals are a trade union” Anthony Eden (1897-1977; UK prime-minister 1955-1957) would later remark in another context), some of whom provided affidavits for the defense in which they provided the details of they way they had their submarine forces conduct exactly the same operations which were the basis of the charges against Dönitz.

Defendants in the dock. IMT Trial #1, Nuremberg, 1945-1946.  All were guilty of something but three were acquitted by the IMT and later tried by German courts.  Dönitz (wearing dark glasses) is sitting in the back row (far left of the photograph). 

The tribunal's aversion to a classical tu quoque being even admitted for discussion was not mere legal pedantry.  Hinted at by the prosecution declining to indict the German air force for their wartime conduct, despite pursuing the army, navy, and many other institutions of state, there was no hunger to offer defense counsel the chance to cite, inter alia, the carpet bombing (then often referred to as "area bombing") of Berlin, Hamburg, Dresden and other German cities (and of course the matter of Tokyo or the later use of A-Bombs).  For the same reason, the Kremlin had no wish to have discussed the secret protocol to the 1939 Nazi-Soviet Pact which had divided the spoils of Poland between Germany and the USSR although, because it had become known to the defense lawyers (who managed to sneak-in a mention) the curious situation came to prevail that the protocol, while not formerly admitted as a document, could be referred to but not in detail.  So, in the narrow technical sense, whether specific acts were justified in law depended (at least for the purposes of the trial) on whether or not they were part of the indictment, a position described by one twenty-first century author as “…hypocrisy permitted by Realpolitik” since the novel and vital ideas behind the creation of Nuremberg trial would have been jeopardized had the IMT cast doubt on the legitimacy of the victors’ actions, strategic or tactical.  That has been criticized but mostly by legal theorists who state, correctly “…there is no moral or legal basis for immunizing victorious nations from scrutiny… [and]… the laws of war are not a one-way street”.  In the abstract they are of course correct but the circumstances and timing of the Nuremburg trial were, and remain, unique and the matters for judgment so grotesquely horrid that it will always be a special case.

Dönitz’s defense appeared to impress the judges (though obviously not the two Russians who were under instruction from comrade Stalin (1878-1953; Soviet leader 1924-1953) to vote to have every defendant hanged).  Although convicted on counts two (crimes against peace) and three (war crimes), he received only a ten-year sentence, the shortest term of the seven imposed on those not hanged or acquitted.  Perhaps tellingly, one has to read the summary of the verdicts to work out against which of the indictment's four counts he had been convicted; it really isn't possible to work it out from the judgment and it wasn't until later it emerged it had been written by one of the judges who had voted for his acquittal.