I PROPOSE CONSIDERING the emergence of this notion of cohabitation in the Eichmann trial (although I do not contend that this is the first instance), since, in at least one moment in that text, Arendt voices an accusation against him, namely, that he and his superiors thought they could choose with whom to cohabit the earth. It is a controversial line since the voice in which she levels the accusation is and is not her own, but the implicit and firm conviction voiced here that none of us should be in the position of making such a choice, that with whom we cohabit the world is something that is given to us, prior to choice—and even prior to any social or political contract. As I hope to have clarified in the last chapter, for Eichmann the effort to choose with whom to cohabit the world was an effort to annihilate some part of that population and so the exercise of freedom upon which he insisted was genocide. If Arendt is right, then it is not only that we may not choose with whom to cohabit, but that we must actively preserve the unchosen character of inclusive and plural cohabitation: we not only live with those we never chose and to whom we may feel no social sense of belonging, but we are also obligated to preserve their lives and the plurality of which they form a part. In this sense, concrete political norms and ethical prescriptions emerge from the unchosen character of these modes of cohabitation.
I will return to this important concept later, but one can see already that, in opposition to the idea of the Jews as a “chosen” people who are supposed to bring enlightened values to the rest of the world, Arendt throws in her lot with the unchosen, arguing that this unchosenness is the basis of our cohabitation on earth. Her notion of cohabitation in some ways follows from a consideration of an exilic condition, and, more specifically, the exilic condition of Jewishness. Her refugee status was, oddly, used against her when Zionists did not like the reports she issued from Jerusalem on the nation-building tactics of the trial. Indeed, she was, of course, accused of misunderstanding the importance of the Eichmann trial because she was a German Jew who had left Europe for New York, sacrificing membership in the Israeli state that would have ratified her position as a member of the community. As someone in the galut who had refused the ideal of the homeland for herself, she had no “right” to judge what happened in the Israeli courts. And yet, what if her diasporic condition was fundamental to the development of her politics and what she proposed was, in fact, a diasporic set of norms as the basis of a binational state in Israel?1 Such a proposal confounds the conventional understanding of “homeland” and “diaspora,” but this was, I think, precisely her point: it is not possible to have a homeland exclusively for the Jews on land with Palestinian inhabitants, and it is not just to do so, especially considering the expulsion of hundreds of thousands of Palestinians from their lands in 1948.
Arendt’s insistence on this point is consistent with her ongoing political concern with statelessness, which formed one of the most important bases for her critique of the nation-state. She was mindful not only that European Jews, whether annihilated in the Second World War or managing to survive, were rendered stateless under the Nazi regime and after the war, but that this situation had started earlier in the twentieth century and constituted a veritable ritual of expulsion performed time and again by the nation-state. As I hope to have made clear, Arendt thought the claims of the stateless should prevail in exposing the nonviability of the nation-state and should compel political formation on the model of federalism, and similar political forms, that would enfranchise the invariable plurality of the population. This was another instance in which plurality and cohabitation form the dominant norm in her understanding of how the state might be formed in ways that would reverse statelessness and accommodate the heterogeneity of its populations. And, though it is commonly thought that the end of the Nazi regime and the exposure of its atrocities necessitated the embrace of political Zionism as the only way for Jews to receive the protection they needed and deserved, Arendt thought that the clear mandate from the atrocious historical formation of state violence and genocide that was National Socialism was that no state should be formed on the basis of a single nationality or religion and that the rights of the stateless must remain forever paramount. An alternative slogan, then: statelessness—never again!
So far I have suggested a few ways in which Arendt’s implication in the historical and theological conditions of Jewishness were central to her embrace of binationalism and her critique of political Zionism. At this juncture, I hope to have covered the following points: (1) a conception of cohabitation that emerges in part from a condition of exile; (2) an affinity with that Benjaminian version of the messianic that offered a distinct alternative to progressive and unfolding historical development (Scholem’s ultimate position) by giving priority to the “wandering” and “scattered” character of Jewish life (resonant with Rosenzweig as well) and to the centrality of remembrance; (3) as scattered and diasporic, Jewish life becomes concerned with the ethical relation to the non-Jew and considers cohabitation to be not only a historical exigency, but a fundamental task of Jewish ethics; (4) a relation between Jewish ethics and Kant profoundly influenced by the work of Hermann Cohen and the Marburg school of neo-Kantianism. It was not only the particular relationship between Judaism and German philosophical thought that Cohen affirmed and that Arendt took up in new ways, but the Kantian notion of reflective judgment, which depended on no external authority for its legitimation and was futural in its orientation. The idea of considering the standpoint of others (which Eichmann was accused of not being able to do) was not only implied by some versions of the categorical imperative but also resonated with the ethical demand to negotiate a relationship with alterity, the signature piece of a certain Jewish cosmopolitanism as well. Finally, (5) the historical condition of the refugee, which was Arendt’s own condition along with countless other German Jews, established a critical perspective on the nation-state. The structural relation between the nation-state and the reproduction of statelessness led her to oppose any state formation that sought to reduce or refuse the heterogeneity of its population, including the founding of Israel on principles of Jewish sovereignty.
In the following, I propose to address Arendt’s consideration of the Eichmann trial, a matter that has been combed over by many scholars of various persuasions.2 My aim will be to show how, for Arendt, the very process of thinking commits us in advance to a certain understanding of cohabitation. Eichmann’s inability to think, linked with the inability to exercise independent judgment, is crucial to her account of how he could devise and implement genocidal policy. The links are in no sense obvious from the start, and she herself makes matters worse by sometimes overdrawing the line between thinking and action. And, though it is not all that she argues, it is one strain of argumentation she pursues. This chapter will consider this relation between thinking and cohabitation to understand the tensions between Arendt’s views on plurality and sovereignty, but also to elaborate on the philosophical and political importance of plurality in her view. Although Arendt opposes sovereign conceptions of nation and state, she seems to reserve a place for sovereignty in her account of judgment. Hence, the question arises, what would a more thorough and consistent account of plurality imply, especially if one were to contest judging as a radically unconditioned and sovereign exercise of freedom? This last is no small matter, but it has, in my view, direct political implications for reconsidering the life of the body that is not distinct from the life of the mind.
CONTRA EICHMANN: ARENDT’S VOICE AND THE CHALLENGE OF PLURALITY
Thinking is a difficult topic to pursue in relation to Arendt’s work, since the work is surely an example of thinking, even an example of a certain splitting of the self without which thinking is impossible. But the failure to think is precisely the name of the crime that Eichmann commits. We might believe at first that this is a scandalous way to describe his crime, but I hope to show that for Arendt the consequence of nonthinking is genocidal, or certainly can be. Of course, the first reaction to such an apparently naive claim may be that Arendt overestimates the power of thinking or that she holds to a highly normative account of thinking that does not correspond to the various modes of reflection, self-muttering, and silent chatter that go by that name. I hope to consider this problem in what follows, especially in light of her conception of the self and of sociality. For now, I want to underscore, however, the centrality of Eichmann in Jerusalem, originally a series that she wrote for the New Yorker in 1963,3 for many of the most important philosophical questions that preoccupied her in the subsequent years: what is thinking, what is judgment, and, even, what is action? But even more fundamentally, perhaps, who am I, and who are we?
As I indicated earlier, Arendt agreed with the final verdict of the trial, namely, that Eichmann should be condemned to death, but she quarreled with the reasoning put forward at the trial as well as the spectacle of the trial itself. She thought the trial needed to focus on the acts that he committed, acts that included the making of a genocidal policy. Like Yosal Rogat before her, she did not think the history of anti-Semitism or even the specificity of anti-Semitism in Germany could be tried.4 She objected to Eichmann’s treatment as a scapegoat; she criticized some of the ways in which Israel used the trial to establish and legitimate its own legal authority and national aspirations. She thought the trial failed to understand the man and his deeds. The man was either made to stand for all of Nazism and for every Nazi, or he was considered the ultimate pathological individual. It seemed not to matter to the prosecutors that these two interpretations were basically in conflict. She thought that the trial necessitated a critique of the idea of collective guilt, but also a broader reflection on the historically specific challenges of moral responsibility under dictatorship. Indeed, what she faulted Eichmann for was his failure to be critical of positive law, that is, a failure to take distance from the requirements that law and policy imposed upon him; in other words, she faults him for his obedience, his lack of critical distance, or his failure to think. But, more than this, she faults him as well for failing to realize that thinking implicates the subject in a sociality or plurality that cannot be divided or destroyed through genocidal aims. In her view, no thinking being can plot or commit genocide. Of course, they can have such thoughts, formulate and implement genocidal policy, as Eichmann clearly did, but such calculations cannot be called thinking, in her view. How, we might ask, does thinking implicate each thinking “I” as part of a “we” such that to destroy some part of the plurality of human life is to destroy not only one’s self, understood as linked essentially to that plurality, but the very conditions of thinking itself? Questions abound: is thinking to be understood as a psychological process or, indeed, something that can be properly described, or is thinking in Arendt’s sense always an exercise of judgment of some kind and so implicated in a normative practice? If the “I” who thinks is part of a “we,” and if the “I” who thinks is committed to sustaining that “we,” how do we understand the relation between “I” and “we,” and what specific implications does thinking imply for the norms that govern politics and, especially, the critical relation to positive law?
Arendt is not only taking issue with the way the Israeli courts arrived at the decision to sentence Eichmann to death. Her book finds fault with every existing legal code brought to bear upon the scene. And she is critical of Eichmann himself for formulating and obeying a noxious set of laws. So it is at some distance from positive law that she writes, exemplifying something of the prelegal, moral perspective that prefigures her later work on judgment. One rhetorical feature of her book on Eichmann is that she is, time and again, breaking out into quarrel with the man himself. For the most part, she reports on the trial and the man in the third person, but there are moments in which she addresses him directly, not at the trial, but in her text. One such moment occurred when Eichmann claimed that, in implementing the Final Solution, he was acting out of obedience and that he had derived this particular moral precept from his reading of Kant.
We can imagine how doubly scandalous such a moment was for Arendt. It was surely bad enough that he formulated and executed orders for the Final Solution, but to say, as he did, that his whole life was lived according to Kantian precepts, including his obedience to Nazi authority, was too much. He invoked “duty” in an effort to explain his own version of Kantianism. Arendt writes, “This was outrageous, on the face of it, and also incomprehensible, since Kant’s moral philosophy is so closely bound up with man’s faculty of judgment, which rules out blind obedience” (EJ, 135–36). Eichmann contradicts himself as he explains his Kantian commitments. On the one hand, he clarifies, “I meant by my remark about Kant that the principle of my will must always be such that it can become the principle of general laws” (EJ, 136). And yet he also acknowledges that once he was charged with the task of carrying out the Final Solution he ceased to live by Kantian principles. Arendt relays his self-description: “he no longer ‘was master of his own deeds,’ and … he ‘was unable to change anything.’” (EJ, 136). When, in the midst of his muddled explanation, Eichmann reformulates the categorical imperative such that one ought to act in such a way that the Führer would approve, or would himself so act, Arendt offers a swift rejoinder, as if she were delivering a direct vocal challenge to him: “Kant, to be sure, had never intended to say anything of the sort; on the contrary, to him every man was a legislator the moment he started to act; by using his ‘practical reason’ man found the principles that could and should be the principles of law” (EJ, 136).
Arendt makes this distinction between practical reason and obedience in Eichmann in Jerusalem in 1963 and seven years later she began her influential set of lectures on Kant’s political philosophy at the New School for Social Research in New York City. In a way, we can understand much of Arendt’s later work, including her work on willing, judgment, and responsibility, as an extended debate with Eichmann on the proper reading of Kant, an avid effort to reclaim Kant from the Nazi interpretation and to mobilize the resources of his text precisely against the conceptions of obedience that uncritically supported a criminal legal code and fascist regime. As an aside, it is probably worth pointing out that Arendt’s defense of Kant would have to be contrasted with Lacan’s “Kant avec Sade” where a certain sadism is understood to be wielded by the categorical imperative itself.5 And yet, interestingly, Arendt seeks recourse not to the categorical imperative but rather to aesthetic judgment (reflective judgment, in particular) and argues that it is this form that is most useful for the postwar reformulation of politics. At the same time, it would be important to underscore again Arendt’s alliance with Kant as continuing the fidelity of Hermann Cohen to Kant and to the enduring possibility of German Jewish thought.6
Eichmann in Jerusalem is populated with many characters and voices, and Arendt herself occupies many positions, not all of them consistent with one another. Her single propositions have been taken out of context in the history of that text’s reception, but if one follows the rhythm of the text, its internal antagonism, then one sees that Arendt is trying to formulate a position of considerable complexity and ambivalence. For instance, she accepts the legitimacy of the Israeli courts to decide the fate of Eichmann, noting that it is the first time since 70 a.d. in which Jews were actually in a position to judge those who have persecuted them (EJ, 271). And yet she openly wonders whether the victims, who are the plaintiffs as well, can also function fairly as judges. If Nazi atrocities were to be understood as “crimes against humanity,” then it would seem that impartial international tribunals should judge the case.
In the end, Arendt considers that the Jerusalem court failed to come to grips with three main issues: “the problem of impaired justice in the court of the victors; a valid definition of ‘the crime against humanity’; and a clear recognition of the new criminal who commits this crime” (EJ, 274). It is interesting, maybe even odd, that Arendt thinks the court failed to understand the person, the criminal, since she is everywhere reminding us that deeds can be deemed criminal, but not persons (whose characters are not on trial) and not peoples (who, as a collective, cannot be held guilty for the explicit deeds committed by individual persons). She considers whether the legal convention that holds that the doer of the misdeed must have a clear “intention” to conduct the misdeed is relevant to the case of Eichmann. Can it be said that Eichmann had “intentions”? If he had no conception of a misdeed, can he be said to have intentionally committed one? It seems one cannot seek recourse to his intentions or, indeed, to any psychological feature of this person, not only because the intentional fallacy has some continued validity (we cannot trace what his actions mean or do solely to his explicit motivations), but because he appears to belong to a new kind of person who can implement mass death without explicit intentions. In other words, it is now possible that some persons have become, historically, instruments of implementation and that they have lost the capacity for what she calls thinking. In a way, the problem is for her both historical and philosophical: how did it come to be that persons are now formed in a way such that thinking, understood as the normative exercise of judgment, is no longer possible for or by them? She rejects the psychological explanation: he is neither perverted nor sadistic, in her view, but simply acted without judgment, formulating and executing a brutal law that had become normal and normalized. What was his crime, finally, according to Arendt? He failed to think; he failed to judge; indeed, he failed to make use of “practical reason” in the precise sense in which Kant described and prescribed. In effect, Eichmann failed to be Kantian, much as he claimed he was.
In the final section of this highly charged text, there is a curious set of passages in which Arendt addresses Eichmann in the second person and gives voice to a final verdict. The verdict she delivers is one she claims the judges in Jerusalem would have given, had they agreed to make visible or manifest “the justice of what was done in Jerusalem” (EJ, 277). Even the phrase suggests that she thinks, in fact, that justice was done, but that justice has not been properly shown or displayed so that the reasoning behind the judgment was not made publicly clear. She begins the paragraph right before her own voicing of the verdict by making the point that where it is not possible to establish intentions (which she thinks to be the case with Eichmann), it still must be possible to understand that a crime has been done. And in punishing the crime, she refuses the option of vengeance, maintaining that “we refuse, and consider as barbaric, the propositions ‘that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal’” (EJ, 277). These last views are cited from Yosal Rogat’s extended essay, The Eichmann Trial and the Rule of Law published in 1961 (22).7 In that text, Rogat makes clear that such attitudes belong to an “older outlook” and constitute “portentous tribal relic” (20); they “antedate all modern patterns of thought” and “stress traditional authority and commandments against individual conscience; group bonds against personal commitments; social duties rather than individual rights” (20). In Rogat’s view, “Israel undertakes an aggressive defense” of the idea that group membership establishes the meaning and claims of the self. Rogat speculates that perhaps the Jews accepted persecution because it was part of “what it meant to be Jewish” (21). Conversely, the right to punish Eichmann seemed to follow from a collective sense of identity grounded in tradition.
Rogat remarks that within the framework of this “older outlook” even his own questions about the rule of law and the appropriateness of the trial would have been impossible to ask, since the propositions on the rights of the collective, of nature, and of vengeance, subsequently cited by Arendt, would have held sway. He notes in 1961 that the world is still asking the fundamental questions posed by Aeschylus’s Oresteia, whether cycles of vengeance can only be stopped “with the establishment of a dispassionate tribunal” (44). He writes, “the Western world has never ceased to be preoccupied with the central problem of the Oresteia. It has characteristically reacted to a deep moral disorder by attempting to impose a legal order upon it. Today, we have no alternative” (44).
Arendt seems largely to be in agreement with Rogat.8 Her claim that the trial is a show rather than a law-governed proceeding, her objection to Eichmann’s illegal extradition from Argentina, and her insistence that Eichmann’s crime is a crime against humanity, and not only the Jews, are all found in Rogat’s calm and perspicacious essay of 1961. Rogat thought that individual biases and interests could be partially circumvented by making sure legal deliberations were shown. In that light, he wrote, “This endeavour is a part of the meaning of the maxim, ‘Justice must not only be done but must be seen to be done,’ in which is expressed the importance not only of public scrutiny but also of public confidence” (34). Instead of seeking recourse, though, to the rule of law, Arendt asks how judgment is to take place when the law has never yet conceived of a crime of this magnitude and specificity. It would seem that she is thinking along with Rogat at this moment, but departing from him in order to insist upon the necessity of legal innovation, something that demands the exercise of judgment when existing legal precedents cannot fathom the crime.
At this juncture, the established conventions regarding “intention” cannot be used (Eichmann did not think, in her view), and, when “vengeance” is barbaric and inadmissible, on what grounds, then, does one sentence Eichmann? One expects perhaps that the verdict she herself will voice will be the one she would have liked to see, but that conclusion is not unequivocally supported by what comes next. Echoing Rogat, she makes the claim that “these long forgotten propositions,” which belong to vengeance, retribution, and natural moral orders, were, in fact, both the reason he was brought to trial and the “supreme justification for the death penalty” (EJ, 277). It would seem these are precisely the justifications she rejects, although she adds “and yet” these were the reasons in operation during the trial and the final judgment. She then adds her own sentence: “Because he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate certain ‘races’ from the surface of the earth, he had to be eliminated.” She then continues, citing, like Rogat, the maxim that “justice must not only be done, but must be seen to be done” and faults the Jerusalem courts for failing to make apparent (and to bring into the domain of appearance) the “justice” of their actions (EJ, 277). So at this point it seems clear that she thought their actions, including the meting out of the death penalty, were just, but that they had failed to give good public reasons for that verdict and the sentencing.
Right before launching into her own voicing of the verdict, she writes that the “justice” of their actions “would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms” (EJ, 277). The direct address that follows is obviously one intended as courageous, compensating for the nondaring of the Jerusalem judges. But is she actually disagreeing with them? Or is she supplying a rationale that they should have used? It is difficult to determine, since she could simply be presenting their rationale in a more courageous way while disagreeing with that rationale (after all, it is the long-forgotten propositions of vengeance that led them, in her view, to their final verdict). But this voicing may be a way to participate in that final judgment and thus to accept the contemporary form that such long-forgotten propositions now take. It would be odd, if not impossible, for Arendt to champion barbarism, since she has explicitly rejected it. And yet if she is voicing what the judges should have said, and referring also to the “justice” of their decision, perhaps she is also simply making apparent a rationale with which she nevertheless disagrees.
What seems more likely, however, is that she starts off trying to reenact what they did mean, only to begin to voice what they should have meant, and the two modalities become intertwined—the second modality fails to substitute fully for the first. She ends this direct address with “you must hang”—an archaic formulation of the death penalty, to be sure, that positions her rhetorically as a sovereign making a fatal declarative, and one that some might consider barbaric indeed. So let us follow this passage and see what can possibly be meant by this outbreak into direct address when Arendt sentences Eichmann to death again.
Arendt enters into active dialogue with Eichmann, though since he is there only by virtue of her invocation, she obviously does most of the talking. She deploys a direct address: “You … said your role in the Final Solution was an accident and that almost anybody could have taken your place, so that potentially almost all Germans are equally guilty. What you meant to say was that where all, or almost all, are guilty, nobody is” (EJ, 278). Then she invokes the plural “we” to wage the counterargument: “this is indeed a common conclusion, but one we are not willing to grant you.” Later, she adds, “even if eighty million Germans had done as you did, this would not have been an excuse for you” (EJ, 278).
In the final paragraph Arendt takes on the voice of the judge, offering a judgment as the textual equivalent of a manifest action. Interestingly, the judgment takes the form of a counterfactual: if the historical conditions had been otherwise, and if the judges had acted otherwise, the verdict would have sounded or looked like this. After she writes that “the justice of what was done in Jerusalem would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms” (EJ, 277), a new paragraph commences, and a voice emerges: is it Arendt’s voice, or the conjectured voice of justice itself? Where is she in this paragraph? The quotation marks that inaugurate this “citation” induce the image of how justice must appear. What “appears” is a “voice”—and its staging is visual, textual and so not the spectacle of the trial or the stage. Something is being written and displayed in a book. The book of justice is being written and shown in Arendt’s own text.
Indeed, what begins as a kind of rejoinder to Eichmann’s testimony (in which she allies herself first with the position of the prosecutor) ends with the performative utterances of the judge. Of course, some of the sentences uttered by this voice sound like Arendt, but others mark a departure from both her tone and argument. Arendt claimed that Eichmann’s base motives and intentions could not be established, but the verdict-voice seems also to entertain a contrary view: “you never acted from base motives … you never hated Jews … we find this difficult, but not impossible to believe” (EJ, 278). There follows a moment in which the voice (elaborated by an Arendt who seems to know either what the judges meant or should have meant, even when they themselves seemed not to know) conjectures what Eichmann himself meant to say (a veritable mise en abyme in which Arendt reconstructs the implicit reasoning of the verdict as well as the judge’s reconstruction of the implicit reasoning in Eichmann’s own speech): “what you meant to say is that where all, or almost all, are guilty, nobody is” (EJ, 278). In both cases the conjectured voice establishes a position for a judgment that relies upon a reconstruction and attribution of intention to those who either will not or cannot supply the principles that guide their action—yet another shadow of sovereign action. The point is less to prescribe what the intentions should have been, but to show that certain kinds of norms are already operative in both crime and judgment even if judge and criminal do not know what these are. These are, importantly, not “intentions” in any psychological sense, but forms of moral reasoning that emerge within the vernaculars of testimony, indictment, and the delivery of final verdict. Yet she wants Eichmann to pay attention to a biblical story and so, when she ends the paragraph by maintaining that guilt and innocence before the law are objective matters, this seems to imply that God acted to punish the inhabitants of Sodom and Gomorrah according to the nature of their crimes and in an objective fashion. In the end, though, it is clear that, no matter who else is guilty, none of it excuses the crimes he himself committed, so his individual guilt—tied to his specific acts—seems to emerge as the most important point, one that is reprised in the following paragraph where she proffers a final judgment:
It does not matter how what you have done compares with what others would have done: there is an “abyss” there between the potential and the actual deed. It does not matter whether your intentions were criminal or, indeed, what the state of your inner life might be or what social conditions may have led you down this path. The final judgment is firm: “there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder.”
(EJ, 279)
Eichmann’s final crime, though, the one for which he must hang, is that he, suddenly addressed now as a plural subject, “you and your superiors,” took as their own right the decision with whom to share the earth. Eichmann thought, and he represented those who thought, that they could determine that they did not need to “share the earth” with the Jewish people and people of other nations, and insofar as they decided that they did not need to share the earth with any specific population, no one, no member of the human race, as she puts it, “can be expected to share the earth with you.” And it was for this crime, the crime of not sharing, that she concludes: “this is the reason, and the only reason, you must hang” (EJ, 279).
So what, then, is the final reason the verdict-voice offers for why Eichmann must die? Is it that you cannot be expected to live with those who want you dead or who have conspired to kill you and your kind? Or is that you cannot be expected to live with those who not only want you dead but who will also take your life or have taken the lives of those like you? If he is no longer an active threat to anyone’s life behind bars, is it then just a matter of “not wanting” him to live, since he himself did not want whole populations to live and implemented a final solution to satisfy that murderous desire? Is the final verdict that Arendt delivers something other than vengeance?
According to what law, norm, or principle is the decision in favor of capital punishment justified in this case? We have seen that Arendt considers as barbaric, and rejects, any recourse to vengeance, ideas of a violated natural order, or the rights of violated collectivities (EJ, 277). She has been arguing all along in favor of judgment and justice, and that argument continues in the postscript that follows the epilogue. What is peculiar, however, is her remark that these long-forgotten or archaic notions of justice were not only responsible for bringing Eichmann to trial but also for the death penalty. This causes some confusion, since if she is referring here to those reasons that are barbaric and unacceptable, then she rejects both the reasons why Eichmann was brought to trial as well as the death penalty against him. But is she perhaps saying that there is a certain wisdom—a nascent norm—operating in that barbarism (in the same way that there may be latent principles—the same latent principles—in the final verdict of the Jerusalem judges that they themselves do not make manifest)? The explicit verdict Arendt offers for why Eichmann has to be eliminated is that he sought to expunge certain so-called races (sometimes “nations”) from the face of the earth. There would seem to be a principle here, but it is not directly elaborated. Instead, the voice concludes, without a middle premise, that this is the reason why no one can be expected to want to live with him.
We read in earlier pages that the extradition of Eichmann from Argentina was neither given a legal justification nor enacted through legal means (indeed that Eichmann himself was unacceptably “stateless” and lacked all rights of due process). In this regard, Arendt cites Jaspers, who warned that those who follow the dictates of vengeance do not stop to reflect on what the right punishment should be, which authority should be entitled to decide the matter, and according to which code of law. Everything we read in Arendt seems to favor the idea of justice over vengeance; in other words, there has to be a justice that depends on judgment, and, in this case, it would be a judgment that lives up to the demand to judge an unprecedented crime. This crime is not an ordinary murder but what she calls an “administrative massacre”—this is a new crime, one that depends less on establishing psychological intentions than on politically organized modes of uncritical obedience. In this sense, Eichmann himself is a new kind of person or an unprecedented sort of criminal, and so the mechanisms and terms of justice have to be rethought and remade to address this new situation. Interestingly enough, although Arendt disputes the idea that we might adequately recover psychological motives and intentions in such a case, she nevertheless attributes a certain kind of intention to both Eichmann and the judges: the convention of attributing to both “what they would have said,” had they dared to make plain the norms operating in their conduct, presupposes a set of normative attitudes and even modes of reasoning that can only be reconstructed ex post facto from a counterfactual position. Had they been thinking and speaking well, or had they been showing justice, they would have provided the principles of their conduct, but, since neither did that well, Arendt offers it for them. The point remains not to reconstruct the psychological person but, rather, the implicit normative scheme operative in a mode of conduct. And though Arendt appears to succeed in recasting “intention” as a less than conscious operation of moral reasoning, it is difficult to see how this opaque and disowned region of ratiocination does not itself rely on a certain psychological topography, a mechanism of disavowal countered by a certain aggressive therapeutic intervention to excavate and exhibit the moral commitments implicit in mute or mangled speech.
Although Arendt appears to know better than both Eichmann and the judges what they meant to say, and even should have said, she does not remain the omniscient philosophical archaeologist at every turn. Something happens in this direct address to Eichmann that unleashes a greater emotional identification with those Jerusalem judges than her searing criticism of them would appear to allow. Her voice becomes entangled with theirs, nearly knotted up in that plurality. After all, the voice is and is not her own: it is the voice that the judges would have used had they dared, so what she writes here is the courageous version of the verdict. As such, she seems to own it. But, as a voicing that is attributed to the judges, it seems to mark a departure from her own voice.
Let us return briefly to the paragraph that leads up to this verdict in quotation marks. When she writes that “then the justice of what was done in Jerusalem would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms …” (EJ, 277), it seems at first she is accepting that verdict as just. Elsewhere she has dismissed its pageantry and pervasive vengeance. It could be that Arendt is simply remarking that we would have all seen that vengeance was operating in Jerusalem if only the judges had explicitly given voice to their version of justice. So is it their version of justice, or the version of justice that Arendt affirms?
We have then to distinguish two interpretations about what is happening. According to the first interpretation, Arendt is saying what the judges should have said if the judges were to have judged in a truly just way. She may even be affirming that the judges came to the right decision (something she has explicitly noted), but that they did not arrive at it in the right way and did not justify it in the right way. It may also be that there is an implicit rationale in the judgment the judges made and the hermeneutic task left to her is to make that reasoning explicit and so to “show” the right justification.
The second interpretation is that Arendt is, yes, giving voice to what the judges would have said had they made available the true justification of their actions, but that she disagrees with their justification. According to this reading, Arendt indicts the judges, disputing that what they call justice is actually justice. But what concerns her most is that this operation of vengeance could not be seen, could not be heard, and that a certain administrative noise covered over the actual operation of this archaic and barbaric form of sentencing Eichmann to death.
If we were to accept the second interpretation of this text, then we still have a problem understanding who is actually speaking at the end of the epilogue and what the aim and effect of this voicing within the text might be: a voice emerges in the text in the mode of direct address, and it articulates the figure of the judge. In a text in which the burden of the word is to “show” the world what is happening, the figure works to produce an image through the voice of direct address.
Perhaps some version of each interpretation I have offered has to be accepted. A voice is conjectured by Arendt that is not her own (and thus partially disowned), but so also are there identifiable features of her own voice, and that doubling is there for us to see. So where is Arendt in this voice? Is she perhaps distributed among its views? She voices what she believes, but there is, bound up with this voice, another voicing of the view with which she disagrees as well. Is this a voice split into agonistic struggle with itself? It is interesting that, in the middle of this direct address, the voice of the judge repeats Arendt’s own subjunctive ventriloquism: the conjectured judge says to the conjectured Eichmann, “what you meant to say was that where all, or almost all, are guilty, nobody is.” The judges refer to Sodom and Gomorrah, but they do so in the context of telling Eichmann that, in the archaic biblical story, the cities were destroyed because all of the people were guilty. The judges finally reject this view in the next line, since they claim that the “you” that is Eichmann is not interchangeable with all Nazis or all supporters of the German Reich. The conjectured judges dismiss the idea of collective guilt in a voice and tenor that sounds a lot like Arendt herself. Indeed, the distinction between actual and potential guilt sounds like Arendt as well, as does the focus not on Eichmann’s inner life or his motives but on his deeds.
At this point in the text I start to doubt that she is voicing the very rationale of vengeance she finds barbaric and unjust. Although within the conjectured voice she explains why people “want” him dead, Arendt has made clear that wanting someone dead is not a good enough reason for sentencing someone to death. Elsewhere she offers a less emotive argument: genocide is unacceptable because it constitutes an attack on the plurality of humanity itself. Perhaps giving voice to what the more courageous judges would have said is actually giving voice to what a more emotional Hannah Arendt would have loved to say and even does say, but within unattributed quotation marks that allow her to speak the death sentence without exactly meaning it—something that is made possible by the fictive conjecture in the text.
This strangely liberated voice—indirect speech couched in direct address—actually interrupts itself at one point, suggesting that both views emanate from this voiced figure of the plural judge. The language of wanting him dead seems to decide the penultimate sentence. In the final accusation the conjectured judges underscore Eichmann’s wanting not to share the earth “with the Jewish people and the people of a number of other nations”; they conclude that the members of the human race do not want to share the earth with him. But then a certain principle emerges within dashes, which suggests the decision is based not on desire alone but on a principle, even a norm, that ought to be invoked to decide cases of genocide: “—as though you and your superiors had any right to determine who should and should not inhabit the world” (EJ, 279).
It is noteworthy that such an important principle emerges as an aside, even qualified by the “as though” which holds back on a full attribution of the thought. And yet here as elsewhere the counterfactual makes plain that a right is being implicitly articulated by a mode of conduct and a specific kind of policy, even if it is not explicitly codified as such. The unattributed “we” allows Arendt’s own voice to cohabit with those of the Jerusalem judges in this voiced reconstruction of a decision with more courage and illustrative power. Even within the dashes she enters into the same procedure as before, voicing what others would have said had they language and courage enough publicly to give principle to their action. At the moment in which this voice attributes to Nazi policy the right to choose with whom to inhabit, it also displays something the judges probably did not have the language or courage to articulate and oppose that Arendt clearly does.
The philosophical and political point of her voiced rejoinder to Eichmann (and to the judges) is that one must make clear that there is no right to choose with whom to cohabit the earth or world (Arendt equivocates about this Heideggerian distinction throughout, thereby suggesting that there is no earth without its inhabitants).9 Cohabitation with others we never choose is, in effect, an abiding characteristic of the human condition. To exercise a right to decide with whom to cohabit this earth is to invoke a genocidal prerogative; it is only for those who have implemented genocide that the death penalty is apparently justified. We do not receive in these pages a justification for why that penalty is appropriate rather than some other form of punishment, although we do know that the appropriateness of the death penalty was debated at the time (with Buber and others opposing it).10 Perhaps we are being asked to remember that just as the crime of murder is not the same as the crime of genocide, so the death penalty, meted out by the state, is not the same as random murder performed by individuals. If such an analogy is operative, and if Arendt had fully displayed the principles of her reasoning, it may be that she seeks recourse to a moral typology of modes of death dealing that would justify the death penalty (state-induced killing under certain legal conditions) while rejecting any form of genocidal death dealing, whether state-sponsored or not.11 This justification is, however, not offered in this passage.12 Instead there is a remarkable ellipsis in the reasoning. If such an argument is anywhere, it is implicit, since the voice that has charged itself with the task of making visible the version of justice that took place in Jerusalem seems to hold back at this very moment. Without understanding the difference between murder as a crime and genocide as a crime against humanity, we cannot understand why the sentencing of Eichmann to death is anything other than taking the life of someone who has taken a life. How would such reciprocity distinguish itself from vengeance or the principle of an eye for an eye (“because you wanted … everyone now wants …”)? But just as the conjectured voice here does not consistently embrace the rationale of vengeance, neither does it fully elaborate an alternative principle. Perhaps the lability of this voice, its very duality, consists in a coupling of angry and vengeful accusation with a more dispassionate elaboration of a norm that is required to decide matters of genocide; is this strange coupling what we are meant to hear and to see? Does the voice position Arendt on the bench with the other judges, and is it populated by that diverse set of views? Does the voice lose track of its own ventriloquism and start to cohabit (despite itself) in ways that signal an uncertain authorial control or, perhaps, a dispersion of authorial effect? Or is this Arendt finding the rhetorical form that allows a certain emotional license, a final telling off, a conjectured death sentence, at the same time that it inserts the principle of its own action in a more temperate and embedded aside? How else do we understand this strange staging? This ending of the epilogue is textual theater, the production of a hybrid figure through a voice whose speaker never quite announces itself.
Although Arendt opposed the trial as a kind of spectacle, it would seem that she allows herself to enter the theater of the trial in this striking epilogue, if only to make sure that her version of justice must not only be done, but seen to be done. Through the rhetorical use of direct address, synesthetic effect, and the equivocal doubling of a nameless voice, she produces the textual image and sound of the judge who should have been but was not. This happens not without absorbing those Jerusalem judges into her own voice in a display that not only corrects them, but joins rank with them; she gives them the principle she thinks they need and gives herself a certain license to enter the angry fray, sentencing Eichmann to death again—an act apparently no less satisfying for being redundant.
Arendt presents herself as the one who apparently knows what the judges should have said; she speaks in her own voice; and yet, in speaking as a plural subject, a “we,” she also seems to fade into the background as a singular author. Can we finally separate these two strands, or are they in some ways implicated in one another, suggesting that judgment is not simply an individual act, but an implicit or explicit enactment of plurality itself?13 If so, what kind of plurality is this? Can we take our cues from her own use of the plural “we” in this final sentencing to understand the philosophical and political importance of this plural pronoun?
The “we” she invokes at once breaks with any “we” circumscribed by the laws of the nation-state, any “we” that belongs restrictively to the nation. And yet it does not exactly describe some other “we” except to conjecture its ideal parameters: such a “we” will be plural, that is, internally differentiated; this internally differentiated population will serve as the basis of judgment, but also as the voice through which legitimate judgment takes place. Moreover, this aspirational invocation of plurality seems to engage judgment—practical judgment in the Kantian sense—not as a way of subordinating an example to an existing rule, but as a spontaneous and even creative act. She asks us to consider human judgment not as bound by existing law, “not bound by standards and rules under which particular cases are subsumed, but on the contrary, [as that which] produces its own principles by virtue of the judging activity itself: only under this assumption can we risk ourselves on this very slippery moral ground with some hope of finding some firm footing” (EJ, 27).
So this plurality that Arendt invokes is a voice (a textual mode of address) speaking to Eichmann, to the judges, but also displaying itself to everyone and anyone who can read and, through reading, “see” what is being shown. It is a voice that speaks as a “we” that is by definition divided up into many; it moves in sudden and fugitive shifts between an “I” and a “we.” This same “we” serves as a slippery ground on which no sure footing is to be found. In some sense it is the pronominal vehicle for hope: the less than ideal judge whose conjectured voice ends this text is precisely one she wishes were true, but whose fallibility, oddly, she preserves. So, though one might expect Arendt, armed with philosophical perspicacity, to triumph over the judges, a strange scene of cohabitation emerges. She takes on the voice of the judge, or she releases herself into such a voice; but no judge is there, only an operation of judgment. It is less the station of the judge than the operation of judgment that is at issue. And in this case, we see that the operation is a plural one, populated by discordant views, emotional and divisive. In a sense, the text does not deliver an ideal of a judge, but exercises judgment as a plural undertaking. It does not precisely exemplify a set of ideals, but operates in a mode that can be called “critical” precisely because it is dependent on no existing law to ground its legitimacy. Since positive law can be wrong, and often is, there has to be a basis for decision making that is not dependent on an existing codification.
Although one might expect Arendt to turn to natural law as a way to ground the legitimacy of positive law, she turns instead to a prelegal understanding of responsibility or practical reason. She not only makes the case for the priority of moral philosophy to legal institutions, but invests moral philosophy with a fictive, performative, spontaneous, and aspirational character that runs contrary to its usual modalities. After all, Arendt’s final direct address is not exactly argumentative: it enacts a judgment in the name of a conjectured plurality. In this sense, it is practical and performative, grounded less in existing legal code than in the nonexistence of an ideal of justice—one that I think might better be described as a recognition of equality that follows from her conception of human plurality.
Importantly, Arendt obeys no law when she fictively sentences Eichmann to death. Just as she faults him for following existing law, rather than questioning its legitimacy, she bases her judgment against him on no existing law, but only on an independent judgment of what law should be. In this way, she not only makes philosophical thinking more primary than legal reasoning but also distinguishes responsibility from obedience, as critical thinking is separate from the uncritical acceptance of dogma or dictate. One’s responsibility cannot be understood as an uncritical allegiance to law, since law itself may turn out to be criminal (as we saw in Nazi Germany), in which case we have a responsibility to oppose bad law, even a responsibility that would, under those conditions, be defined as disobedience. Indeed, sometimes disobedience is precisely our responsibility. And this is what Eichmann failed to grasp.
In Arendt the dialogue that is thinking has a performative and allocutory dimension that underscores the centrality of free self-constitution in her view. If free self-constitution is an action, however, it must be done on the basis of some set of prior social relations. No one constitutes him or herself in a social vacuum. Although this precept is sometimes strained by what Arendt occasionally says about the solitary character of thinking, sometimes it is not, especially when thinking is understood as speaking and speaking is a performative act of some kind. To think is not necessarily to think about oneself, but rather to think with oneself (invoking oneself as company and so using the plural “we”) and to sustain a dialogue with oneself (maintaining a mode of address and, implicitly, addressability).14 To act as an individual is to enter into concerted action without fully sacrificing one’s singularity and to act in such a way that dialogue with oneself can be continued; in other words, the maxim according to which I live is that any action I take should support rather than destroy my capacity to keep company with myself (should support the receptivity and audibility of that internal dialogue). To the extent that thought is dialogic, it is a linguistic exercise, and this proves important to my capacity to continue to compose myself as one who can and does keep company with myself. Although dialogue implies being addressed by others (or addressing myself as an other) and so requires receptivity, Arendt casts the dialogic encounter within the self as an active and performative dimension of self-making. “In this process of thought in which I actualize the specifically human difference of speech, I explicitly constitute myself a person, and I shall remain one to the extent that I am capable of such constitution ever again and anew.” For Arendt, those who fail to relate to themselves, to constitute themselves, as one does in thinking and judging, fail to actualize as persons. A certain kind of speech is necessary for this actualization of the person to take place; interestingly, it is a silent speech, solitary, but not, for that reason, without addressee. Someone is addressing someone else, and this structure of address provides the rhetorical and linguistic condition of thinking and conscience alike. According to Arendt’s reading of Eichmann, he failed to call upon himself. To be called upon, someone must be home. And Arendt concluded that, with Eichmann, no one was at home. In fact, Arendt in her reflections on evil elsewhere makes this quite stunning remark: “in rootless evil there is no person left whom one could ever forgive.”15
Such remarks leave two key issues unaddressed. The first is whether Arendt thought that Eichmann was not at home, was no person, from the start, or whether the conditions for personhood had been decimated along the way. If such conditions were decimated, were they decimated by him alone? And did he then effectively deconstitute his own personhood? If he did not actively deconstitute himself, was it that he passively failed to constitute himself? Does it matter under what conditions that deconstitution of personhood takes place, or do we need only to know that he failed to exercise the requisite freedom to make himself into a person? It might at first seem like there is lots of pulling up of bootstraps here, but one can see that, just as she does not want Eichmann’s crime to be excused by virtue of the social conditions in which he lived, Arendt refuses to consider the social conditions under which either the constitution of personhood or the exercise of judgment might become possible. The second implication of her view follows from the first: she was willing to chime in on the death penalty because she concluded that there was no person left there, that his actions (or inactions) had effectively destroyed the preconditions of his own personhood.
Arendt seems to be subscribing to a moral norm that distinguishes persons from nonpersons, which seems to imply that those who fail to constitute themselves in such a way that their actions safeguard the plurality of human existence, and actively oppose its destruction, have effectively practiced genocide and forfeited all claims of protection against state-sponsored death. Does this mean that to put such a nonperson to death is nothing more than a kind of redundancy? If the person already decimated his own personhood, does the death penalty merely ratify the prior deed? We might justifiably pause here and wonder about Arendt’s view: whether it is finally acceptable, whether she has actually offered sufficient reasons to accept the death penalty at all.
Eichmann failed to call himself up, responding, as it were, to a rival recruitment and so acted irresponsibility. Moreover, Arendt produces the textual occasion when she pays him a call, addressing him directly, bringing into relief, we might say, the addressability of this subject who failed to address himself. If Eichmann is beyond reach, so Arendt’s direct address is finally without recipient, unless, of course, we accept that she is not actually addressing him, but us, “the world” of readers who function as the de facto jurors in the trial (and its report).
And yet, does Arendt not indirectly constitute Eichmann as a potential interlocutor by addressing him directly? And would this act not be in tension with her conclusion that no one is home? In effect, she places him within the sphere of interlocution and hence constitutes him as a person of some kind. At the moment that she addresses him, some disposition of language binds them both together; she is part of a human plurality with him—indeed, with the likes of him. And yet the effect of her address to him is to exclude him from that very domain of plurality. The death sentence is one of the paradigmatic instances of the perlocutionary performative, a speech act that under certain conditions can lead to the result that it bespeaks. In this way, the final sentences of that epilogue (in both senses) figure an operation of discourse as action.
But because Arendt is not a judge, though she exercises judgment, her writing underscores the difference between the conjectural domain of philosophy and that of actual law and politics. The conjecture, the counterfactual, is significant because it articulates a nonlegal norm according to which legal reasoning ought to proceed, and, in that way, her impossible conjecture—indeed, her fiction—is part of her effort to ground law in practical thinking, itself a critical exercise of thought.
We began this consideration of Arendt’s work by asking whether there are dimensions of thinking that commit us in advance to the safeguarding of human plurality. This is made more difficult when we consider that Arendt herself distinguishes between thinking, as belonging to the contained sphere of the self, and acting, which requires the domain of human plurality. In order to make good on her claim that Eichmann’s crime was that he failed to think, she has to link nonthinking with genocide, which means that thinking must be integrally related to the affirmation of plural cohabitation.
Luckily, Arendt undoes her distinction time and again. When Arendt thinks, she theorizes thinking; and in thinking takes the form of judgment, and judgment is a kind of action. It emerges as the performative action of judging Eichmann himself at the end of that text. When she explicitly theorizes thinking, she notes that it involves keeping company with oneself, but also notes that it involves constituting that self, time and again. Yet in explicitly distinguishing between thought and action, she suggests that, even as thought involves this internal capacity to keep company with oneself, action involves keeping company (acting in concert) with others, that generalized plurality Eichmann sought to destroy, a plurality voiced as the “we” in whose name Arendt condemns him to death. Arendt makes this distinction explicitly here, but she cannot maintain it consistently throughout her work. Note how she states the distinction when she tries to make it firm: “The main distinction, politically, between Thought and Action lies in that I am only with my own self or the self of another when I am thinking, whereas I am in the company of the many the moment I start to act.” She continues, “Power for human beings who are not omnipotent can only reside in one of the many forms of human plurality, whereas every mode of human singularity is impotent by definition” (EJ, 106). If we take this typology seriously, then we think by ourselves or in dyadic relations, in actual dialogues between this self and another. But only when we are engaged with the many, a plurality that exceeds dyadic relations, do we become capable of action, understood as the exercise of power. I am wondering whether this is true and whether it is, actually, thinkable. After all, the “I” is said to constitute itself through language, and that is already a performative act and so a version of action. Arendt judges Eichmann, and that seems, at least on the surface, to be a dyadic relation, indeed no less dyadic for being imaginary and strange. Both forms of thinking have assumed linguistic shape, and in both instances the language does not merely describe a reality, but brings one into being (self-constitution is illocutionary; judging is perlocutionary). In this sense, the language is a kind of action, a constituting or performative one. And hasn’t she already told us that plurality is germinal in thinking? Would that not immediately imply that action is germinal in thought? Can we even have thought that is not in some way related to action or, put more boldly, already incipient action in some mode or another?
Although it sometimes seems that she is separating two different modes of plurality, the one that is the self and the one that is the self with others, she also lets us know that the distinction is not absolute. She has already told us that solitary thinking carries the trace of social company. But there is a stronger claim to be made here, one I wish she had made. Indeed, in my view, without that animating trace of social company, there can be no self-reference, which means that sociality precedes and enables what is called thinking. One becomes capable of having a dialogue with oneself only on the condition that one has already been engaged in dialogue by others. Being addressed precedes and conditions the capacity for address. Ethically considered, one becomes capable of responding to others only on the condition that one has been first addressed, constituted by others, as one who might be prompted to respond to that interpellation with self-reflection or, indeed, thinking. Only as someone brought into language through others do I become someone who can respond to their call, and who can interiorize that dialogic encounter as part of my own thinking, at which point sociality becomes an animating trace in any and all thinking any one of us might do. Thus the dialogue that I am is not finally separable from the plurality that makes me possible. Although the dialogue that I am is not fully reducible to that plurality, there is a necessary overlap, or chiasmus, between the two spheres. Is there not a social formation of thinking in Arendt’s sense, even if the normative form that thinking takes is radically solitary? And is solitariness not also, in some sense, a social relation?
As we have seen, Arendt does something interesting and disturbing by invoking the voice of the judge to condemn Eichmann to death after he has already been so condemned. On the one hand, she summons and produces a figure of sovereign authority outside of all law; on the other hand, she performatively introduces a norm that might distinguish just from unjust law on radically egalitarian grounds. It may well be, for reasons both she and Benjamin, in “A Critique of Violence,” suggest, that we must oppose law, act against it, even engage in provisional anarchism when law becomes unjust. But there is no reason to think that the only way to oppose or suspend law is through recourse to an extralegal sovereignty. That brings Arendt closer to Schmitt than I would like, and it goes against the radical egalitarian consequences of her theory of social plurality.
What would happen if, instead of turning to the sovereign voice as the way to oppose legal violence, she were to have rethought the social, that field of plurality, not only as a site of belonging, but as a site of struggle? In other words, does the chiasmic relation between the “I” and the “we” also expose a fault at the heart of sovereignty, a noncoincidence that makes the voice vacillate between modes, that keeps the ground more slippery? This apparent recourse to sovereignty at the heart of judgment seems to be in tension with the social ontology she has laid out for us. Indeed, it may be that plurality disrupts sovereignty, time and again, federating its remains, dispersing sovereignty into federal forms. If to think, or at least to think well, involves thinking in such a way that we seek to preserve the heterogeneity of human life, then when we are thinking we are thinking heterogeneity. But here we are compelled to note that this heterogeneity is only thought within an anthropocentric horizon. After all, the life that is worth preserving, even when considered exclusively human, is connected to nonhuman life in essential ways; this follows from the idea of the human animal. Thus, if we are thinking well, and our thinking commits us to the preservation of life in some form, then the life to be preserved has bodily form. In turn, this means that the life of the body—its hunger, its need for shelter and protection from violence—would all become major issues of politics.
This produces a problem for the Arendt of The Human Condition, who, consequentially and mistakenly, separates the sphere of the public from the sphere of the private.16 In the sphere of the private we find the question of needs, the reproduction of the material conditions of life, the problem of transience of reproduction and death alike—everything that pertains to precarious life. The possibility of whole populations being annihilated either through genocidal policies or systemic negligence follows not only from the fact that there are those who believe they can decide among whom they will inhabit the earth, but because such thinking presupposes a disavowal of an irreducible fact of politics: that vulnerability to destruction by others follows from all modes of political and social interdependency and constitutes a demand on all political forms.
A different social ontology would have to start from this shared condition of precarity in order to refute those normative operations, pervasively racist, that decide in advance who counts as human and who does not. The point is not to rehabilitate humanism, but rather to accept human animality and shared precarity. Perhaps this feature of our lives can become the basis for the rights to protection against deliberate genocide and fatal forms of international and state negligence and abandonment of precarious populations. After all, our interdependency constitutes us as more than thinking beings, indeed as social and embodied, vulnerable and passionate; our thinking gets nowhere without the presupposition of that very interdependency. Our thinking relies on a bodily life that can never be fully sequestered in any private sphere—indeed, for thinking to become political, there must be a body that, even in Arendt’s own term, “appears.” Arendt clearly thought that thinking might bind us to others and so give us a way to think the social bond to which we are already committed when we begin to think.
If Arendt is only figuring sovereign decision here, showing what good decision is, or performatively enacting good decision on the model of the just sovereign, she has certainly taken distance from the notions of equality and the processes of pluralization and universalization that characterize both her social ontology and the benefits of her theory for democratic politics. My point is neither that she subscribes to a notion of sovereign action at the expense of collective making nor that she subscribes to social forms of deliberation at the expense of sovereign action and decision. Rather, I am saying that she vacillates between the two and that this tension seems to form a recurring and irresolvable dimension of her thought.
Consider this quotation from “Personal Responsibility Under Dictatorship”: “the rather optimistic view of human nature, which speaks so clearly from the verdict not only of the judges in the Jerusalem trial but of all postwar trials, presupposes an independent human faculty, unsupported by law and public opinion, that judges in full spontaneity every deed and intent anew whenever the occasion arises.” She goes on to speculate, “perhaps we do possess such a faculty and are lawgivers, each single one of us, whenever we act.” But then she uses this standard that she has just articulated through her conjecture to judge the judges as inadequate: “Despite all the rhetoric, they meant hardly more than that a feeling for such things has been inbred in us for so many centuries that it could not have been lost.”17 In “Some Questions in Moral Philosophy,” Arendt makes clear that at least this part of Kant has to be safeguarded and opposed to Nazi obedience. Again, she offers her norm through a conjecture: “If, however, I can be said at all to obey the categorical imperative, it means that I am obeying my own reason.… I am the legislator, sin or crime can no longer be defined as disobedience to somebody else’s law, but on the contrary as refusal to act my part as legislator of the world.”18
How would such a sovereign legislator dwell in the domain of plurality? Perhaps only by splitting up its voice and dispersing its sovereignty. It may be that sovereignty is not finally compatible with plurality or, indeed, with federal forms of government. But this conclusion depends in part on how we come to understand the sovereign and plural dimensions of action.
Although I am not prepared to make a full argument in favor of this conception, I propose that it might be useful to return to the distinction we considered in the previous chapter, the one Arendt introduces in response to Scholem’s accusation that she has no love for the Jewish people. The “facts” that she is Jewish and that she is a woman are both understood to be part of her physei. When Arendt refers to Jewishness as something given, as physei, and likens that to being a woman, we are faced with a strange analogy, but also a challenge for any kind of active appropriation of those terms. In The Human Condition she writes, “the human sense of reality demands that men actualize the sheer passive givenness of their being, not in order to change it but in order to make it articulate and call into full existence what otherwise they would suffer passively anyhow” (208).
So what does this mean? It means, to begin with, that we are up against others we never chose and that this proximity is a source of a great range of emotional consequences from desire to hostility or, indeed, some combination of the two. Arendt emphasizes time and again how freedom requires acting in concert, but what she seems not to consider at any great length is the unfreedom that conditions cohabitation and how we think about that unfreedom in relation to the freedom that is, for her, the basis of politics.
But if we take seriously the inability to choose with whom we cohabit the earth, then there is a limit to choice, a kind of constitutive unfreedom that defines who we are and even, normatively, who we must be. It is true we cohabit with others we do not choose, but that certainly establishes a certain amount of aggression and hostility in the midst of that cohabitation. Indeed, is there not a kind of agonism, if not antagonism, we need to consider in the midst of that plurality? If we think of cohabitation only as a political goal, but not as a condition of social existence, then we fail to understand not just the agonism implied by unchosen cohabitation, but the longing, the dependency, the constraint, the possibilities for encroachment, impingement and displacement. If this is a cohabitation of living beings, then we have to think about life as it crosses the human and nonhuman divide. And, as embodied creatures, we would have to think about questions of need, hunger, and shelter as crucial to this plurality; in other words, plurality would have to be thought as a certain kind of material interdependency such that being able to live and being exposed to death are also, in part, at stake in this social condition. We find the idea of precarious life here, where being a body at the mercy of another body can produce a great source of pleasure and/or a terrifying fear of death.
About the Nazi genocide, Arendt wrote that our usual moral standards were upended and rendered anachronistic. “At the time the horror itself, in its naked monstrosity, seemed not only to me but to many others to transcend all moral categories and to explode all standards of jurisdiction; it was something men could neither punish adequately nor forgive.” Later, she adds, “We had to learn everything from scratch, in the raw, as it were—that is, without the help of categories and general rules under which to subsume our experience.”19
It was this last demand that returned her to Kant not only to retrieve him from Eichmann’s appropriation but also to develop a mode of responsibility made necessary by the historical situation in which existing moral and legal frameworks had been proven inadequate. It is not a matter of subsuming the particular moral dictum under the general rule, especially if only the particular can be given for which the general must be found. She writes, “the standard cannot be borrowed from experience and cannot be derived from outside.”20 One has to probe, to experiment, even to rely on the imagination when it comes to forming judgments of this time and in the name of shared human life that remains irreducible to individualism and to collectivism alike. Arendt positions herself precisely there, in between, as the “I” and as the “we” at once, elaborating the norms by which we might judge by conjecturing the tribunal in which she is the judge through a process that is vexed, antagonistic, and ambivalent.
It is for this reason that I think the recourse to the sovereign mind, its faculty of judgment, its individual exercise of freedom, is in some quite strong tension with the idea of cohabitation that seems to follow both from Arendt’s accusation against Eichmann and her own explicit reflections on plurality. This last notion provides a precedent for international law, one that is not based exclusively on the rights of citizens, but extends to members of all populations, regardless of their legal status. Indeed, in the Goldstone Report (“The United Nations Fact-Finding Commission on the Gaza Conflict”), published in September of 2009, Goldstone himself remarks that international law and justice require that “no state or armed group should be above the law.” In saying so, he posits a law that overrides whatever laws and policies govern a particular state or armed group. Although Goldstone more recently rescinded his position in an op-ed article (with no legal status), we can still countenance his arguments, regardless of his failure to resist pressure to forfeit his own words.
Although Goldstone sought recourse to international legal precedent throughout this report, there is still a tension between the way in which the report asserts or even makes law and the way that precedent constrains the judgments it makes. I think in some ways this mirrors the tension between sovereignty and cohabitation in Arendt. Does judgment presuppose a sovereign action, or is it the result of a historically forged consensus, an action on the part of a plurality? I think we see something of this tension in the public reception and adjudication of the Goldstone Report, which called on both the State of Israel and the Hamas authority in Gaza to conduct criminal investigations into possible war crimes. At stake in one part of the report and its findings is whether civilians were targeted or, indeed, whether civilians were used as human shields. Not only has the State of Israel called into question the fairness or evenhandedness of this approach, but it claims that Goldstone has exercised inappropriate authority, framing the conflict in a one-sided way, and Israel made clear that it will not honor the legitimacy of the final recommendations of the report to inquire into war crimes and crimes against humanity. We can see that there is a question of whether Goldstone speaks or whether international law speaks when Goldstone speaks. Is this a sovereign decision on his part, taking as an individual a moral and legal authority that he ought not to have, or is he entitled by international law to make the judgments he does (it is, of course, a commission that judges, but the judgment is formulated under his name)? Both sides of the conflict disputed the legitimacy of the demand, especially Hamas, which understands that the civilian population of Gaza was disproportionately affected by the assault of December 2008 that ended in January 2009. The Palestinian authority, incredibly yet predictably, failed to support the report. And the investigations that the Israelis have agreed to conduct are emphatically not independent criminal investigations and have yet to result in convictions. As reported by Adalah: The Legal Center for Arab Minority Rights in Israel:
According to the Israeli military, the focus of these investigations is any “misconduct” by Israeli soldiers as individuals outside the scope of any official instructions and orders received, and not the policies and strategies of the Israeli military operations, their implementation, the size and type of weapons used, etc. Thus far, these investigations seem primarily intended to ease international pressure on the Israeli government and to relieve the army and its command of the charges leveled against them, and to preclude deliberation of these crimes in international fora.
In other words, the investigations taken up in response to the Goldstone injunction to investigate crimes of war and crimes against humanity have effectively decriminalized the charges. The risk, of course, is that the report is taken merely to be bad public relations that may be countered by rival commissions and findings, at which point the findings of tribunals are bad press, but have no other legal standing and no moral claim.
Of course, Goldstone is himself a Jew and a Zionist. Richard Falk, a prominent Jewish political scientist, also the special rapporteur for the United Nations on Palestinian Human Rights, was detained in an Israeli cell prior to being given limited rights of mobility within the Occupied Territories. Are these figures not echoing and extending a certain Arendtian politics? Can we say that an alternative memory prompts the moral embrace of international law over and against nationalism or the claims of the nation-state for both Goldstone and Falk? The division we see between these two supporters of international law and the explicit claims made by Israeli authorities about the skewed and unreliable nature of international law reveal certain tensions between universalizing claims of justice and the sovereign claims of the nation-state. In the Israeli context this devolves into a question of whether the nation-state of Israel not only has the right to defend its citizens against attack by so-called terrorist groups but also, implicitly, whether the State of Israel must defend the Jewish populations against an internationalism that is suspected to be, fundamentally, anti-Semitic. It is on the basis of this last claim that both Goldstone and Falk have been called self-hating Jews within the Israeli press. But could it be said that, in fact, they represent a different trajectory of postwar, and even prewar, ethical thinking that takes cohabitation to be fundamental to social and political life and understands international law to have the obligation to protect not only citizens of existing nation-states, but all populations, including refugees or colonized peoples whose citizenship is either nonexistent or in the process of emerging? In effect, I understood Goldstone at the time to be continuing an Arendtian tradition within Jewish thought, which is to say that it is thought, a normative framework, that binds the fate of the Jew with the non-Jew. This ethical value of cohabitation is doubtless the result of a diasporic condition, one that includes dispossession, persecution, and exile. But can we understand it as well as a way of calling for international law that would apply to all refugees? And can we also think about binationalism, in this regard, as basing itself on an ethos of international law that does not discriminate among the claims of the refugee, whether contained under conditions of occupation or decontained in exile?
The question of minorities and the stateless thus emerges from a particular history of the nation-state and its implication in racist politics. We might understand this as a collective memory, but not the collective memory of the nation. On the contrary, it is the collective memory of nonnationals, the ones who do not belong, who had to flee, or who fled into containment and who did not know whether there might still be legal protection for them in the midst of such loss and fear. One question then is whether international law is linked with binationalism and whether their combination might lead to a conception of rights that is not finally “national”—since, as Arendt tells us, though everyone has a right to belong somewhere, our modes of belonging can never serve as the basis of our rights or obligations. This nonchosen adjacency, this living up against and with one another, may well become the basis for a binationalism that seeks to undo nationalism, even to relieve international law of its tacit commitments to the nation-state. This would be a cohabitation guided by the memory and by the call to justice that emerges from dispossession, exile, and forced containment, not just for two peoples, but for all peoples. It may not be what anyone would have chosen, and it will be rife with antagonism and hostility, both necessary and obligatory.