Arendt in Jerusalem and the Problem of Judgment
Vincent Lefebve
Translated by Zachary Fouchard
Eichmann in Jerusalem is not just a book about the problem of evil, but it also contains a profound reflection on the meaning of human justice. This dimension is not always recognized, most notably because Arendt herself is ambivalent about providing a full-throated account of it. The considerations on justice that she proposes are mingled with more critical remarks on certain aspects of the judgment rendered in 1961 by the Jerusalem District Court1 charged with judging the crimes committed by Adolf Eichmann, one of the main architects of the Holocaust.2
This ambiguous praise of justice is the object of the considerations that follow. I will show that the “shock,” as she called it, of the Eichmann trial led Arendt to develop a theory of justice that can be qualified as monist. In effect, Arendt believes that a trial is not intended to serve general historical and political purposes but that it should only focus on determining the responsibility of the individual. In this theoretical framework, Arendt underlines the greatness of the judiciary, which results from the fact that even in the age of mass society, there exists an institutional place in which human actions are judged as singular actions. The Arendtian praise of justice is based on a theory of judgment as a political faculty of the highest importance, allowing the subject to take root in the world and in the plurality that constitutes it, as well as rehabilitating the autonomy of the individual in the face of historical processes. The idea of personal responsibility, established through judicial means and by means of legal notions, procedures, and legal reasoning, therefore constitutes a possible response to the challenge addressed to our categories of thought and judgment by the advent of totalitarian crimes. However, according to Arendt, the Jerusalem judges were not able to fully meet this challenge, which explains the critical tone that permeates certain passages of Eichmann in Jerusalem.
Justice in Jerusalem
Arendt’s reflections on justice, far from being situated at a purely theoretical level, were activated by an actual judicial event, namely, the Eichmann trial. While she did not attend the entirety of the high-profile trial, she did go to Jerusalem, sent by The New Yorker magazine. She then proposed a report that took the form, first, of several articles published in the magazine, then a book in its own right. The book led to an immense set of polemics of international scope, the details of which I cannot attend to here.3 I merely insist on the fact that this controversy masks one of the central subjects of this work, namely, justice. From the first pages of Eichmann in Jerusalem, Arendt traces a frontal opposition among the protagonists of the trial: on one side the prosecutor Gideon Hausner and on the other, the three judges, and especially the president, Moshe Landau. In addition to his “cheap rhetoric,”4 she reproaches Hausner for substituting the authentic objective of the trial with a more general objective: inserting the Holocaust and the creation of the state of Israel into the millennial history of anti-Semitism. Yet, according to Arendt, the purpose of a trial, however exceptional, is not to serve the national interest or to write history but to the interpret law and bring about justice. The task of the Jerusalem Court was therefore the following: to weigh the charges against the accused, listen to the arguments of the prosecution and the defense as well as the witnesses, evaluate the documents produced by the parties, and, finally, render a verdict. A verdict concerns a singular person, not a political system, an abstract idea, or a historical trend. In this sense, Arendt believes that the Jerusalem judges, whose human qualities she strives to underline (they are good, show restraint, are above the fray, etc.), perfectly understood their role. They tried “to prevent this trial from becoming a show trial under the influence of the prosecutor’s love of showmanship”5 and also refused to judge, through the Eichmann case, anti-Semitism or the Third Reich.
One can criticize Arendt for developing a narrow conception of the role of law and justice,6 conservative even, according to some,7 that relegated witnesses and victims to somewhat of a secondary role.8 The general point of view concerning the idea of justice that emerges from Eichmann in Jerusalem is in effect characterized by its uncompromising monism. A single task is assigned to the Jerusalem judges: it is not a question of playing politics—as Ben Gurion would have it, who saw the trial as an opportunity for an edifying justification of the creation of the State of Israel—nor is it a question of writing history, as attorney general Hausner would have it, who tried to confer upon the Holocaust the status of the ultimate stage in the millennial history of anti-Semitism, but rather to “render justice.”9
However, in a more positive light, Arendt’s position has the merit of not making justice a mere tool for external and allegedly higher political purposes. With respect to international criminal justice in particular, the fact that Arendt insists so much on the theme of justice makes it possible to distinguish the philosopher from contemporary authors who see international criminal justice above all else as an instrument serving other objectives (reconciliation, pacification, education of populations involved in conflict, etc.). Such a conception of justice, moreover, remains relevant today when contrasted with the increasingly important place given to victims in criminal, national, or international proceedings.10
The Greatness of the Judiciary
Within the scope of a single trial, Arendt endeavors to highlight the greatness of the judicial process, the dignity of justice as such. At a time when we would want to make every individual a simple cog in a complex machinery, there is an institution in which behavior is assessed on an individual basis, an institution in which a person cannot escape his or her responsibility on the pretext of an unavoidable historical trend or a momentary paralysis of his or her faculty of judgment due to exceptional political circumstances.
Totalitarianism strives to transform each individual into a mere cog in a machinery that surpasses it. However, once the totalitarian enemy has been defeated, it is possible to treat its most faithful servants, those who claimed an “obedience of corpses”—as was the case with Eichmann11 —as responsible human beings. It is in fact a common humanity that enables professional judges to assume the task at hand, by postulating that the persons who appear before them also belong to the human race and that it is in this respect that they will be judged.12
Emphasizing the benefits of individual responsibility when mass crimes have been committed13 is also a way of guarding against a line of defense often used in such trials that dilute the responsibility of the individual in the name of so-called collective guilt. If every member of a group is found guilty, no one truly is, warns Arendt, referring to the necessary distinction between “moral or legal” guilt and responsibility, which can be political.14 Arendt thus does not adhere to a theory of “small cogs”; she does not consider that Eichmann would only have been a passive element in the complex machinery of Nazi totalitarianism, a circumstance that, in a certain way, would deny him any responsibility. Arendt admits that this “cog-theory,”15 as she calls it, can to some extent explain the functioning of a system, whether totalitarian or simply bureaucratic. However, the great advantage of the judicial process, which offers the greatness of the mechanisms of legal proceedings, is that it does not attach any importance or only an extremely marginal importance to such cog-theories. The accused at the center of a trial is considered to be responsible for his or her actions and is to be held accountable; before a court, the “cog” is understood to be a “person.”16
A Philosophy of Judgment
The theme of judgment is central to Eichmann in Jerusalem and the controversy that the book provoked. In an epistolary exchange with Arendt that treated the question of the responsibility of Jewish leaders in the implementation of the Holocaust, Gershom Scholem was critical of what he saw as an unjustified questioning of decisions taken at the time by some of these leaders. He addressed Arendt with the following warning: “I do not know whether they were right or wrong. Nor do I presume to judge. I was not there.”17 This objection haunted Arendt unrelentingly: “Finally, and in a way most surprisingly, since after all we dealt with a trial whose result invariably was the passing of a judgment, I was told that judging itself is wrong: no one can judge who had not been there.”18 In order to refute Scholem’s objection, Arendt proposed a kind of reductio ad absurdum: if the question “Can we judge past events or occurrences at which we were not present?”19 must be answered in the negative, it would imply that no historical or juridicial work could ever be possible. What do historians and judges do if not judge factual situations in which they have not participated? We must, Arendt proposes, question and overcome this “fear of judging,” which fosters a reluctance evident everywhere to make judgments in terms of individual moral responsibility.”20
Here, we see Arendt’s preference for a particular kind of judgment that, following Kant, she qualifies as reflective.21 In the Critique of Judgment,22 Kant distinguishes two types of judgments. On the one hand, determining judgments assume that the general rule and the particular object of judgment are both given. In such cases, the particular object is simply judged according to the rule that is at our disposal. Such determining judgments can take the form of a syllogism of the kind: all men are mortal (major); Socrates is a man (minor); Socrates is mortal (conclusion). On the other hand, reflective judgments imply that a particular object is given, but without reference to any general rule. In such cases, we must therefore reflect upon the universal on the basis of the particular.
The model of reflective judgment developed by Kant in the context of an aesthetic reflection on taste is thus applied by Arendt to the political sphere. In politics, Arendt thinks that judging consists of “making judgments directly and without any standards.”23 This position is contrary to the traditional assumption that affects the very notion of judgment, according to which it is believed that
people are actually incapable of judging things per se, that their faculty of judgment is inadequate for making original judgments, and that the most we can demand of it is the correct application of familiar rules derived from already established standards.24
Arendt also grasped that the fallibility of judgment, which was so obviously manifest during the years that saw the Nazis ascend to power, was not all encompassing. In spite of the reversal or destruction of established criteria of judgment (“thou shall not kill” having been transformed into “thou shall kill”), some people were nevertheless able to judge for themselves, to oppose the verdict of history with an autonomous judgment. This prompted Arendt to conclude that there exists within the human spirit a faculty that “enables us to judge rationally without being carried away by either emotion or self-interest,” and is spontaneous in the sense that it “is not bound by standards and rules under which particular cases are simply subsumed, but on the contrary, produces its own principles by virtue of the judging activity itself.”25
The Failures of the Jerusalem Verdict
These considerations help to explain Arendt’s ambivalent conclusions about the extent to which justice was rendered in Jerusalem. She oscillates between a positive evaluation of the verdict, which had clarified certain notions, and a critique of the judgment. Arendt in effect believes that the Jerusalem judges were not able to face the challenge posed to them and, in particular, that they were not able to give the interconnected notions of genocide and crimes against humanity a valid definition.26
While it was only occasionally mentioned during the Nuremberg trial, the fact that the Holocaust was contrary to military necessity was at the center of the Jerusalem trial: “Eichmann stood accused of a crime against the Jewish people, a crime that could not be explained by any utilitarian purpose.”27 Compared to their predecessors in Nuremberg, the Jerusalem judges thus gained a better understanding of the unprecedented character not only of the motives but also of the purposes of the crimes they were to judge.28 They confirmed that the “unheard-of-atrocities” committed by the Hitler regime, the operations of ethnic cleansing he ordered, and the policy of extermination that he implemented at an industrial level, “were in fact independent of the war” to the extent that it “announced a policy of systematic murder to be continued in time of peace.”29
However, according to Arendt, these same judges failed to make it clear in their judgment that the “extermination of whole ethnic groups,” Jews, Poles, or Roma people, resulted in “more than a crime against the Jewish or the Polish or the Gipsy people, that the international order, and mankind in its entirety [was] grievously hurt and endangered.”30 Arendt in effect believes that the particularity of the crime of genocide, which in her mind is the crime against humanity par excellence, is that it enacts a radical refusal to share the world with other individuals and other groups of people, thereby undermining the plural structure of humanity.31
Arendt’s criticism also concerns the inability of the Jerusalem judges to perceive that not only a crime but also an entirely new kind of criminal was brought before them. Arendt’s thinkin g here is partly linked with the much-maligned expression the “banality of evil,” which provides the subtitle of her book. Eichmann’s novelty was due to the fact that he was not a new Bluebeard, that he did not look like a devil with a human face, that he did not appear to be perverse or sadistic, but was on the contrary distinguished by his appalling normality.32 This was, in Arendt’s opinion, “much more terrifying than all the atrocities put together.”33 The accused had only applied the new law of the country, that is to say the law of murder that resulted from Hitler’s orders, and he would have felt guilty “only if he had not done what he had been ordered to—to ship millions of men, women, and children to their death with great zeal and the most meticulous care.”34
What struck Arendt by attending the Jerusalem trial was our inability to simply perceive a fact, which she designated with the expression of the banality of evil, the simple fact that the evil committed by Eichmann, far from being the work of a demon, had been committed by someone who had renounced the decision whether to do good or evil. Eichmann, incapable of thought and judgment, who constantly took refuge in bureaucratic language to protect himself from the outside world, had committed his appalling “crimes under circumstances that [made] it well-nigh impossible for him to know or to feel that he [was] doing wrong.”35
To confront this novelty, it would have been necessary to admit that this type of trial destabilized one of the essential presuppositions of our legal systems: “that intent to do wrong is necessary for the commission of a crime.”36 As the aphorism goes, justice must not only be done, it must also be seen to be done. Arendt believes consequently that the judges should have taken in account in their decision these difficulties. She proposes to solve these herself in the following way: since Eichmann had acted so as to assume to the end the “duties of a law-abiding citizen,”37 since he was obviously incapable of judging his own actions for himself, the basis for his punishment ought to have its source not in an internal disposition, but in his actions themselves. He should be punished for the sole reason that “he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate forever certain ‘races’ from the surface of the earth.”38 He should be punished because he had “supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations.” According to Arendt, this was the true basis for his condemnation: as soon as Eichmann had attacked the human condition of plurality, “no one, that is, no member of the human race, [could] be expected to want to share the earth with [him],” and in such a case, Arendt goes so far as to justify the application of the death penalty.39
If crimes against humanity, in the general sense of the term, and in particular the crime of genocide, can be defined, it is because they aim at destroying human plurality and attack one of the primordial conditions upon which rest the lives of human beings on earth. The idea of plurality implies two things: that human beings only exist in a plural dimension, but also that many people, and not just a single people endowed with a singular history, share the world: “the earth is inhabited by many peoples . . . ruled by many different laws,” Arendt writes in Eichmann in Jerusalem,40 or as she puts it later in The Life of the Mind, “plurality is the law of the earth.”41
Arendt could initially consider that the crimes committed by totalitarian regimes had the peculiarity of transcending the human power to punish and forgive.42 On the basis of the Eichmann trial, she endeavors to reconsider positively the political potential inherent in the ability to judge. By means of procedures employed by those political bodies charged with rendering justice, it is possible to restore—at least to a certain extent—the primordial political link when it is broken, and to return to the condition of cohabitation to which human beings are subject. Living in a world free of these “most serious crimes of concern to the international community as a whole,”43 genocide and crimes against humanity, is probably more of a dream than the product of cold lucidity. Adequate judging of mass crimes, as well as of any other fact arising out of our common world, is by contrast a human possibility. It is in fact by judging, by giving meaning to events that occur in the world, that human beings can make the world habitable and regain their dignity, by refusing history, “the pseudo-divinity,” and the “right to being the ultimate judge.”44
Notes
1 The trial proceedings were held in the Jerusalem District Court from April 11, 1961, to August 14, 1961. They resulted in a sentence of the death penalty. An appeal of the judgment was brought before the Supreme Court of Israel, which served as the appellate court from March 29 to May 29, 1962, that resulted in confirmation of the sentence. A petition for clemency was then introduced and rejected. The death penalty, by hanging, was executed on May 31, 1962.
2 During the war, Eichmann was particularly responsible for the organization, at the logistical level, of the deportation of the victims of the Holocaust to the concentration and extermination camps: David Cesarani, Eichmann: His Life and Crimes (London: Heinemann, 2004).
3 See R. I. Cohen, “Breaking the Code: Hannah Arendt’s Eichmann in Jerusalem and the Public Polemic: Myth, Memory and Historical Imagination,” Michael: On the History of the Jews in the Diaspora 13 (1993): 46–60; A. Rabinbach, “Eichmann in New York: The New York Intellectuals and the Hannah Arendt Controversy,” October 108 (2004): 9–111; and M.-I. Brudny and J.-M. Winkler, eds., Destins de “la banalité du mal” (Paris: Éditions de l’Éclat, 2011).
4 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, 2006), 19.
5 Ibid., 4.
6 C. Klein, Le Cas Eichmann. Vu de Jérusalem (Paris: Gallimard, 2012), 223.
7 S. Felman, “Theatres of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust,” Critical Inquiry 27 (2001): 201–38, 222; M. Leibovici, “Les finalités de la justice en tension. Une lecture d’Eichmann à Jérusalem,” in La Justice pénale internationale face aux crimes de masse: approches critiques, ed. R. Nollez-Goldbach and J. Saada (Paris: Pédone, 2014), 29–43, 32 and 38.
8 Leibovici, “Les finalités,” 38.
9 Arendt, Eichmann in Jerusalem, 253; Leora Bilsky, “Between Justice and Politics: The Competition of Storytellers in the Eichmann Trial,” in Hannah Arendt in Jerusalem, ed. S. E. Aschheim (Berkeley, CA: University of California Press, 2001), 232–52.
10 For a discussion of such questions, see D. Luban, “Hannah Arendt as a Theorist of International Criminal Law,” International Criminal Law Review 11 (2011): 621–41; V. Lefebve, “Hannah Arendt et le problème de la justice pénale internationale. Une pensée toujours actuelle?,” Revue interdisciplinaire d’Études juridiques 75 (2015): 27–58.
11 Arendt, Eichmann in Jerusalem, 135.
12 Ibid., 251–52.
13 On such questions, see M. Osiel, Making Sense of Mass Atrocity (Cambridge: Cambridge University Press, 2009).
14 Hannah Arendt, Responsibility and Judgment, ed. J. Kohn (New York: Schocken, 2003), 147.
15 Ibid., 29.
16 Ibid., 148.
17 Hannah Arendt and Gershom Scholem, “Eichmann in Jerusalem: An Exchange of Letters between Gershom Scholem and Hannah Arendt,” Encounter 22 (1964): 51–54, 52.
18 Arendt, Responsibility, 18.
19 Ibid., 19.
20 Arendt, Eichmann in Jerusalem, 297.
21 R. S. Beiner and J. Nedelsky, Judgment, Imagination, and Politics: Themes from Kant and Arendt (Lanham, MD: Rowman & Littlefield, 2001).
22 Immanuel Kant, Critique of the Power of Judgment, ed. P. Guyer, trans. P. Guyer and E. Mathews (Cambridge and New York: Cambridge University Press, 2000).
23 Hannah Arendt, The Promise of Politics, ed. J. Kohn (New York: Schocken, 2005), 103.
24 Ibid.
25 Arendt, Responsibility, 27.
26 Arendt, Eichmann in Jerusalem, 274; Lefebve, “Hannah Arendt,” 43–44.
27 Arendt, Eichmann in Jerusalem, 275: “Jews had been murdered all over Europe, not only in the East, and their annihilation was not due to any desire to gain territory.”
28 Ibid.
29 Ibid., 257.
30 Ibid., 276.
31 Judith Butler, Parting Ways: Jewishness and the Critique of Zionism (New York: Columbia University Press, 2012).
32 Arendt, Eichmann in Jerusalem, 276.
33 Ibid.
34 Ibid., 25.
35 Ibid., 276.
36 Ibid., 277: “On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed.”
37 Such is the title of one of the chapters of Eichmann in Jerusalem (Ibid., 135). It should be noted that under the conditions of the Third Reich, the “law” was a matter of the will of the Führer (O. Jouanjan, “Prendre le discours juridique nazi au sérieux?,” Revue interdisciplinaire d’études juridiques 70 [2013]: 1–23, 13).
38 Arendt, Eichmann in Jerusalem, 277.
39 Ibid., 279; Judith Butler, “Hannah Arendt’s Death Sentences,” Comparative Literature Studies 48 (2011): 280–95, 285.
40 Arendt, Eichmann in Jerusalem, 264.
41 Hannah Arendt, “Thinking,” in The Life of the Mind (Orlando, FL: Harcourt and Brace, 1978), 19.
42 Hannah Arendt, The Human Condition (Chicago, IL: The University of Chicago Press, 1998), 241: “The alternative to forgiveness, but by no means its opposite, is punishment, and both have in common that they attempt to put an end to something that without interference could go on endlessly. It is therefore quite significant, a structural element in the realm of human affairs, that men are unable to forgive what they cannot punish and that they are unable to punish what has turned out to be unforgivable. This is the true hallmark of those offenses which, since Kant, we call a ‘radical evil’ and about whose nature so little is known, even to us who have been exposed to one of their rare outbursts on the public scene. All we know is that we can neither punish nor forgive such offenses and that they therefore transcend the realm of human affairs and the potentialities of human power, both of which they radically destroy wherever they make their appearance.”
43 The Rome Statute establishing the International Criminal Court, which entered into force on July 1, 2002, preamble and article 1.
44 Arendt, “Thinking,” 216.