3. The Judge as Tragic Hero: An Arendtian Critique of Judging
Roger Berkowitz
In his book Justice Accused,1 Robert Cover explores how and why ante-bellum Federal judges who were opposed to slavery consistently upheld the constitutionality of the Fugitive Slave Act of 1850.2 These judges claimed that despite their strong personal convictions that slavery was immoral and wrong, they were constrained by the U.S. Constitution to declare the Act constitutional.3 As Cover convincingly demonstrates, however, the arguments for the constitutionality of the Act of 1850 were not widely perceived to be ironclad, even in 1850.4 Nevertheless, the judges, at least some of whom were sincere in their opposition to slavery, upheld the Act.
In justifying their decision the judges relied on what Cover calls the ‘judicial can’t.’5 The judicial can’t is easily understood since it lies at the core of what most Americans understand judging to be: It invokes the duty of the judge to follow the law, not to make it. Confronted with claims by white lawyers on behalf of fugitive slaves that the Fugitive Slave Act was unconstitutional, the anti-slavery judges almost uniformly responded by invoking the formal limit of their powers. “As a citizen and as a man,” they said, “I may admit the injustice and immorality of slavery. . . . But as a jurist, I must look at that standard of morality, which the law prescribes.”6 These judges felt themselves to be responding to a calling; their roles as judges required them courageously to suppress their personal morality in the service of higher principle which they understood as the impartial application of formal rules.7
I am interested in exploring why some judges, like those Cover discusses, rhetorically portray themselves as tragic heroes who are bound by the law when others, both dissenting judges and respected legal observers, argue that the law is unsettled.8 The questions of how judges judge, and why they judge as they do are important for two reasons. First, what judges say matters. The words judges speak are transformed into the deeds of the executioner, the warden, and the immigration official.9 Further, as the centrality and importance of law in society expands, judges are now frequently responsible for deciding issues of primary importance to the way we, as a society, wish to live. From issues of abortion to those of environmental protection and even of free speech, moral and political debates have become increasingly legalized. Second, when judges claim they are bound by the laws, they are making an argument—an appeal to those of us upon whose consent their judicial authority rests—that being bound by laws is the appropriate way for a judge to approach his role.10 How judges defend their approach to judging, therefore, is likely to shed light on how as a society we believe that the major social and political decisions that judges make should be approached.
Saying ‘I can’t’ rhetorically absolves the judge from having to make a choice or from assuming responsibility for the political or moral consequences of her decision. Of course the judge still makes a choice and assumes responsibility for her decision to act in accordance with the law; however, she is only deciding to act as she imagines herself to be instructed.11 To say ‘I won’t’, on the other hand, frames the decision as a choice, and thus requires judges to weigh competing moral imperatives and then privilege one over the other.
The competing moral imperatives in the fugitive slave cases were clear to the judges Cover describes. On one side was their belief that slavery was evil, and that it contravened both natural law and common morality. On the other side was their argument that they were rule-bound actors who were obliged to enforce the democratically enacted Fugitive Slave Act. These positions appeal to two different understandings of the verb and the action, to judge. The first appeals to judgment, understood in the Kantian sense, as a free act of autonomous yet universal legislation. The second appeals to the judges’ understanding of themselves as role-players who are bonded to the application of particular cases to general legal rules.
Yet these two positions on how a judge should approach his job of judging need not be contradictory. One may agree that a judge should understand his role as being bound by the law and not as that of a legislator. Nevertheless, contrary to the positivist assertions of the judges Cover discusses, agreement on how a judge is to approach his task is only the beginning and not the end of the judicial inquiry. Not for a lack of trying, legal positivists—those who believe judges should judge according to either a close textual exegesis or an accessible standard such as efficiency—have yet to identify a master rule on which legal interpretation can be grounded. The law does not remain static; it grows and adapts while continually incorporating new understandings and re-interpretations. Even judges who proclaim absolute fidelity to the same rules, precedents, and institutional obligations, can and often do disagree as to the outcome of a case. Despite their protestations, therefore, the ante-bellum judges who upheld the fugitive slave laws did have a choice of whether to find the Fugitive Slave Act unconstitutional.12 Judges, Cover reminds us, are never as constrained in their legal interpretations as they claim to be.13
As does Cover, Hannah Arendt remains committed to the belief that people have more freedom to resist the rationalized injustices of bureaucratic institutions than they usually believe.14 Arendt attempted to balance her acknowledgment of the need for the stability guaranteed by a legal-political order with a demand that we as humans can and must assume responsibility over our collective fate. In this paper I explore Arendt’s attempt to negotiate, without resolving, what I call the paradox of autonomy and limitation. We, as individuals, as citizens, and as members of various political organizations, possess some level of freedom and autonomy to create and to change who and what we are; yet we must limit that autonomy in order to live peaceably together. While Arendt addresses this paradox as part of her philosophical investigation of politics, autonomy and limitation correspond to the two understandings of judging mentioned above. Autonomy requires that a judge consider himself capable of creating new laws, while limitation demands that a judge remain bound by his duty to interpret the law. Arendt’s unwillingness to resolve these paradoxes—e.g. by declaring the substantive norms and limits governing the terms of political or judicial autonomy—is ultimately, I argue, an ethical attempt to preserve a space of human freedom, autonomy, and self-creation as a dynamic force within a stable and successful legal order.15
In exploring Arendt’s unwillingness to resolve the paradox of autonomy and limitation, I read Arendt’s own act of judging in the epilogue of her book Eichmann in Jerusalem as an ethical critique of the Israeli judges who, in sentencing Eichmann to death, justified their decision by appealing to their role as interpreters of general laws. In appealing to laws and legal precedents, the positive legal system, which, Arendt argues, was completely inadequate to justify the court’s decision, the Israeli court, like the ante-bellum judges in Cover’s study, sought to deny their autonomy in a case in which ethical acceptance of their at least partial autonomy was called for. Rather than meet the unique and exceptional case presented by Eichmann in its terrifying particularity, the Israeli judges subsumed Eichmann’s compliance with a genocidal regime under the existing criminal laws of Israel. By opposing her confident and definitive judgment as an appeal to the normative community to the judges’ rule-bound approach, Arendt suggests that judges, at least in certain extraordinary circumstances, should recognize their freedom to judge freed from the constraints of general guidelines and autonomously will themselves to act. Arendt appeals to all of us, judges as well as those of us who may seek to maintain our innocence by faithfully obeying the law, to assume our obligation to think, to judge, and to act in response to particular events without the illusory assurance of the judicial ‘can’t.’ Such an attitude toward the law need not deny the importance of law as a stabilizing and moral force in society; it does, however, suggest that obedience to law should proceed under the aegis of a law that acknowledges transformative potentialities, rather than operate under the fiction of legal certainty.
II. Thoughtlessness
In Eichmann in Jerusalem, Arendt argues that Eichmann’s complicity with the Nazi regime and participation in carrying out the Final Solution illustrates what she terms the banality of evil;16 the fact that evil can be and is sometimes perpetrated by individuals whose only fault is the bureaucratic virtue of blindly obeying the law. While the Israeli court perceived that Eichmann’s crimes were unprecedented, it was unable or unwilling to understand that Eichmann was not an evil monster, a devil, or even a virulent anti-Semite,17 but rather that he was “terribly and terrifyingly normal.”18 Eichmann’s complicity in genocide was not the result of his being a fanatic or an ideologue, Arendt argues, but rather of his being shallow and thoughtless. Eichmann did not think about what he was doing. Inured by his thoughtlessness against intermittent flashes of reality—his recognition that the Jews were as human as himself—Eichmann saw himself as a victim, a cog in a machine, who was simply doing his duty by following orders.19
The banality of evil accompanies what Arendt decries as the rise of thoughtlessness. Thoughtlessness, “the heedless recklessness or hopeless confusion of our time,”20 presents the modern world with the danger not of disruptive transgression, but of unthinking obedience to an unjust authority. Eichmann’s thoughtlessness represents only one frightening example of what Arendt fears that the people of the world are becoming. When Arendt describes Eichmann as ‘normal,’ she means that he, at least as he perceived himself, was simply trying to secure for himself and his family the modern bourgeoisie lifestyle he, like most of us in the Western industrialized world, had been taught to respect. It was ambition rather than hatred, Arendt argues, that motivated Eichmann to join the SS.21
In addition to economic security, however, Arendt argues that Eichmann justified complicity in the Final Solution by denying personal responsibility. Bureaucratic authority serves as an essential condition for denying responsibility, Arendt argues, because it allows people to refuse to think about what they do. State and private bureaucracies require a rationalized division of labor and emphasize hierarchy and efficiency, to provide ready rationalizations for ‘normal jobholders and family men’ to justify their otherwise unjustifiable actions.22 Their “conscience cleared through the bureaucratic organization of their acts,” these shallow men, who “out of sheer passion . . . would never do harm to a fly,” were able systematically to murder millions of Jews and Gypsies, and still not to think about what they were doing long enough to recognize themselves as murderers.23
Arendt defines totalitarianism as a “methodical genocide ‘within the frame of a legal order.’”24 Her insight is that there is no bureaucracy yet invented that is better geared to absolving its actors from personal responsibility for their acts and thus encouraging the rise of thoughtlessness than the modern legal system. Because the efficacy of law depends so heavily on its ability to do violence, it must develop and employ “cues that operate to bypass or suppress the psycho-social mechanisms that usually inhibit people’s actions causing pain and death.”25 In other words, the wardens and executioners who voluntarily exercise the acts of violence and domination required by the law, need to overcome the normal inhibitions which restrain their autonomous behavior. One of the most effective ways in which the law does this is through its division of labor between judges who are responsible for interpreting the law’s words, and prison and court officers who are responsible for administering the law’s deeds. As Robert Cover argues in his essay “Violence and the Word,” the legal bureaucracy facilitates the job of those charged with doing its violence by separating them from the responsibility for thinking about the justice of their acts. “No wardens, guards or executioners,” Cover writes, “wait for a telephone call from the latest constitutional law scholar, jurisprude or critic before executing prisoners, no matter how compelling the interpretations of these others may be.”26 The bureaucratic division of labor makes it easier, therefore, for
In Eichmann in Jerusalem, Arendt argues that Eichmann’s complicity with the Nazi regime and participation in carrying out the Final Solution illustrates what she terms the banality of evil;16 the fact that evil can be and is sometimes perpetrated by individuals whose only fault is the bureaucratic virtue of blindly obeying the law. While the Israeli court perceived that Eichmann’s crimes were unprecedented, it was unable or unwilling to understand that Eichmann was not an evil monster, a devil, or even a virulent anti-Semite,17 but rather that he was “terribly and terrifyingly normal.”18 Eichmann’s complicity in genocide was not the result of his being a fanatic or an ideologue, Arendt argues, but rather of his being shallow and thoughtless. Eichmann did not think about what he was doing. Inured by his thoughtlessness against intermittent flashes of reality—his recognition that the Jews were as human as himself—Eichmann saw himself as a victim, a cog in a machine, who was simply doing his duty by following orders.19
The banality of evil accompanies what Arendt decries as the rise of thoughtlessness. Thoughtlessness, “the heedless recklessness or hopeless confusion of our time,”20 presents the modern world with the danger not of disruptive transgression, but of unthinking obedience to an unjust authority. Eichmann’s thoughtlessness represents only one frightening example of what Arendt fears that the people of the world are becoming. When Arendt describes Eichmann as ‘normal,’ she means that he, at least as he perceived himself, was simply trying to secure for himself and his family the modern bourgeoisie lifestyle he, like most of us in the Western industrialized world, had been taught to respect. It was ambition rather than hatred, Arendt argues, that motivated Eichmann to join the SS.21
In addition to economic security, however, Arendt argues that Eichmann justified complicity in the Final Solution by denying personal responsibility. Bureaucratic authority serves as an essential condition for denying responsibility, Arendt argues, because it allows people to refuse to think about what they do. State and private bureaucracies require a rationalized division of labor and emphasize hierarchy and efficiency, to provide ready rationalizations for ‘normal jobholders and family men’ to justify their otherwise unjustifiable actions.22 Their “conscience cleared through the bureaucratic organization of their acts,” these shallow men, who “out of sheer passion . . . would never do harm to a fly,” were able systematically to murder millions of Jews and Gypsies, and still not to think about what they were doing long enough to recognize themselves as murderers.23
Arendt defines totalitarianism as a “methodical genocide ‘within the frame of a legal order.’”24 Her insight is that there is no bureaucracy yet invented that is better geared to absolving its actors from personal responsibility for their acts and thus encouraging the rise of thoughtlessness than the modern legal system. Because the efficacy of law depends so heavily on its ability to do violence, it must develop and employ “cues that operate to bypass or suppress the psycho-social mechanisms that usually inhibit people’s actions causing pain and death.”25 In other words, the wardens and executioners who voluntarily exercise the acts of violence and domination required by the law, need to overcome the normal inhibitions which restrain their autonomous behavior. One of the most effective ways in which the law does this is through its division of labor between judges who are responsible for interpreting the law’s words, and prison and court officers who are responsible for administering the law’s deeds. As Robert Cover argues in his essay “Violence and the Word,” the legal bureaucracy facilitates the job of those charged with doing its violence by separating them from the responsibility for thinking about the justice of their acts. “No wardens, guards or executioners,” Cover writes, “wait for a telephone call from the latest constitutional law scholar, jurisprude or critic before executing prisoners, no matter how compelling the interpretations of these others may be.”26 The bureaucratic division of labor makes it easier, therefore, for
[p]ersons who act within social organizations that exercise authority [to] act violently without experiencing the normal inhibitions or the normal degree of inhibition which regulates the behavior of those who act autonomously. When judges interpret, they trigger agentic behavior within just such an institution or social organization27
In justifying his actions, Eichmann did not claim, as did the German generals at Nuremberg, the defense of obeying orders. It was not simply orders which Eichmann obeyed; Arendt argues that to understand Eichmann’s compliance—his agentic behavior —it is necessary to understand that Eichmann saw himself as duty-bound to obey the laws. In the Nazi regime, where the will of the Fuhrer was the law, Eichmann was a law-abiding citizen.28 As Arendt shows, there were times when Eichmann explicitly disobeyed Himmler’s bureaucratic directives seeking to moderate the Final Solution because “Eichmann knew that Himmler’s orders ran directly counter to the Fuhrer’s order.”29 Eichmann saw Himmler as corrupt, someone who thought himself above the law, and thus Eichmann justified his disobedience by appealing to the law. Eichmann did not oppose Himmler’s moderation at the end of the war out of a “boundless hatred of Jews,” as the prosecution in the Israeli trial argued; he did so because his conscience prohibited him from disobeying the law as he knew it. In the Nazi regime, conscience becomes an unreliable guide which is demonstrated by the fact that Eichmann felt bound by his conscience to obey the law.30
It is just such a situation that the Eichmann trial presented to the Israeli court and to Arendt. Eichmann invoked his own version of the Kantian formula of duty: To be a law-abiding citizen meant not merely to obey the laws, but to act as if one were the legislator of the laws that one obeys.31 As Arendt argues, this interpretation of Kant’s categorical imperative missed what she believes to be the essential element of Kant’s formulation: That by thinking and the use of ‘practical reason,’ one must act according to the principles that could and should be the principle of universal laws. What Eichmann drops out of Kant’s imperative is universality.
The problem of the banality of evil reaches its height when the duty to obey the laws can be invoked in the name of evil. Because obedience to the law remains for many a cardinal virtue—even greater than the simple virtue of obedience to orders,—we need not think about what we are doing when we obey laws. Like wardens and executioners, businessmen whose lawyers tell them that it is not illegal to build dangerously defective cars or to pollute the world’s environment, do not usually call up their local constitutional scholars or moral philosophers to discuss the implications of their acts. While reflection and argumentation may (or may not) suggest that executing a murderer is different from exterminating entire races of people, the agents of the legal system, like Eichmann , rely on legal authorization of their actions to justify their violence. It is easier for an executioner, instead of thinking about the death penalty in general or its specific application to the prisoner before him, simply to throw the switch and consider himself as a law abiding citizen. Indeed such rationalizations are necessary for the efficient workings of our modern society.
Arendt’s awareness and fear of thoughtlessness is linked to her enduring commitment to and engagement with the relation between thought and political freedom. The greatest threat to that freedom today, Arendt argues, is the thoughtless acceptance of our individual and collective powerlessness.32 When people act as if they are constituted by their society—i.e. if they understand their condition to be one of heteronomy—then politics, the process of choosing how to live, becomes secondary if not meaningless. It is when we as citizens internalize Eichmann’s conclusion that he “no longer ‘was master of his own deeds,’ [and] that he was unable ‘to change anything,’”33 that we, as he did, cease to think about who we are and where we are going. It is precisely when the members of a society cease to think and thus abdicate their responsibility for self-creation, Arendt argues, that the potential of evil in modern society arises.
In spite of over two centuries of social science research that has sought to prove that individuals are constituted and determined by their environment, Arendt strives to remind us that we retain some measure of autonomy. To assert autonomy is neither vainly to assert our absolute freedom from the past nor to claim our sovereignty and mastery over the world. Arendt recognizes that we are, as Heidegger argues, always already ‘thrown’ into this world, and that who we are is in a significant way ‘rooted’ in the history into which we are born.34 Autonomy does assert, however, that people are the source of their laws—i.e. they have at least some capacity for self-creation—and that they are at least partially free to choose or judge who and what they will be.
For people who claim autonomy and with it the freedom to judge particular events according to their wills, there are two related dilemmas.35 The first is the dilemma of autonomy itself: how do we who are free and thus without ultimate grounds, make choices or judgments about how to organize our lives? The second is the dilemma of limitation: once we have chosen how to live our lives, how can we ensure that we (and our posterity) will choose to abide by our choices and live according to the institutions we have created? Together, the dilemmas of autonomy and limitation comprise one of the central paradoxes of politics as it is understood in the Greek and Western tradition. Much of Western political theory has been obsessed with resolving or, at the least, taming this paradox; against this trend, I argue in the next two sections that Arendt sought instead to articulate and affirm this paradoxical need for both autonomy and limitation. To accept limits of the way the world is is to foreclose the possibility and the need to aspire to a better world; it is to imprison oneself in positivism and thus to eclipse the transformative possibilities and potentialities of imagining a new future. Throwing away the limits of the present, however, even in the name of a more just future order, ignores the basic rootedness within which we live. For Arendt, there is no ethical or productive way to reconcile the needs of freedom and order except by courageously and simultaneously embracing both.
It is just such a situation that the Eichmann trial presented to the Israeli court and to Arendt. Eichmann invoked his own version of the Kantian formula of duty: To be a law-abiding citizen meant not merely to obey the laws, but to act as if one were the legislator of the laws that one obeys.31 As Arendt argues, this interpretation of Kant’s categorical imperative missed what she believes to be the essential element of Kant’s formulation: That by thinking and the use of ‘practical reason,’ one must act according to the principles that could and should be the principle of universal laws. What Eichmann drops out of Kant’s imperative is universality.
The problem of the banality of evil reaches its height when the duty to obey the laws can be invoked in the name of evil. Because obedience to the law remains for many a cardinal virtue—even greater than the simple virtue of obedience to orders,—we need not think about what we are doing when we obey laws. Like wardens and executioners, businessmen whose lawyers tell them that it is not illegal to build dangerously defective cars or to pollute the world’s environment, do not usually call up their local constitutional scholars or moral philosophers to discuss the implications of their acts. While reflection and argumentation may (or may not) suggest that executing a murderer is different from exterminating entire races of people, the agents of the legal system, like Eichmann , rely on legal authorization of their actions to justify their violence. It is easier for an executioner, instead of thinking about the death penalty in general or its specific application to the prisoner before him, simply to throw the switch and consider himself as a law abiding citizen. Indeed such rationalizations are necessary for the efficient workings of our modern society.
Arendt’s awareness and fear of thoughtlessness is linked to her enduring commitment to and engagement with the relation between thought and political freedom. The greatest threat to that freedom today, Arendt argues, is the thoughtless acceptance of our individual and collective powerlessness.32 When people act as if they are constituted by their society—i.e. if they understand their condition to be one of heteronomy—then politics, the process of choosing how to live, becomes secondary if not meaningless. It is when we as citizens internalize Eichmann’s conclusion that he “no longer ‘was master of his own deeds,’ [and] that he was unable ‘to change anything,’”33 that we, as he did, cease to think about who we are and where we are going. It is precisely when the members of a society cease to think and thus abdicate their responsibility for self-creation, Arendt argues, that the potential of evil in modern society arises.
In spite of over two centuries of social science research that has sought to prove that individuals are constituted and determined by their environment, Arendt strives to remind us that we retain some measure of autonomy. To assert autonomy is neither vainly to assert our absolute freedom from the past nor to claim our sovereignty and mastery over the world. Arendt recognizes that we are, as Heidegger argues, always already ‘thrown’ into this world, and that who we are is in a significant way ‘rooted’ in the history into which we are born.34 Autonomy does assert, however, that people are the source of their laws—i.e. they have at least some capacity for self-creation—and that they are at least partially free to choose or judge who and what they will be.
For people who claim autonomy and with it the freedom to judge particular events according to their wills, there are two related dilemmas.35 The first is the dilemma of autonomy itself: how do we who are free and thus without ultimate grounds, make choices or judgments about how to organize our lives? The second is the dilemma of limitation: once we have chosen how to live our lives, how can we ensure that we (and our posterity) will choose to abide by our choices and live according to the institutions we have created? Together, the dilemmas of autonomy and limitation comprise one of the central paradoxes of politics as it is understood in the Greek and Western tradition. Much of Western political theory has been obsessed with resolving or, at the least, taming this paradox; against this trend, I argue in the next two sections that Arendt sought instead to articulate and affirm this paradoxical need for both autonomy and limitation. To accept limits of the way the world is is to foreclose the possibility and the need to aspire to a better world; it is to imprison oneself in positivism and thus to eclipse the transformative possibilities and potentialities of imagining a new future. Throwing away the limits of the present, however, even in the name of a more just future order, ignores the basic rootedness within which we live. For Arendt, there is no ethical or productive way to reconcile the needs of freedom and order except by courageously and simultaneously embracing both.
Footnotes
1 Robert Cover, Justice Accused, (1975).
2 The Act dealt primarily with the jurisdiction and appointment of federal magistrates who would issue certificates for the return of escaped slaves. The magistrate was to oversee the proceedings and examine the affidavits of the slaveholder or his representative and then issue a certificate for the slave’s return. Slaves themselves were explicitly prevented from testifying and the Act also compensated the magistrates when they returned slaves and only when they denied the slaveholder’s petition. Id., pg. 175.
3 See Article 4, US. Constitution.
4 See Cover, supra note 1, at 119-97.
5 Id. at 119.
6 Id. at 120 citing Jackson v. Bullock, 12 Conn. 39 (1837) (Judge Bissell dissenting). See also Justice McLean’s statement in Miller v. McQuerry that the question of the natural right of slavery “is a field which judges can not explore” (cited in Id. at 120).
7 For an interesting theory on why judges appear to welcome their subjection to law, see Slavoj Zizek, The Sublime Object of Ideology (1989). Zizek argues that the law of the law as it is expressed from Kant onwards, is that we must deny ourselves the free reign of our inclinations. The moral law, therefore, is precisely the renunciation of the desire to transgress the limits of the law—i.e. to subject oneself to the law. According to Zizek, what we in fact desire is the law itself.
8 The tragic flaw that compels the ante-bellum judges to uphold laws they consider inherently unjust is the supposed virtue of fidelity to the law. Like Captain Vere in Melville’s novel Billy Budd and Creon in Sophocles Antigone, the ante-bellum judges appeal to their role as agents of the legal order to justify actions which are, in the objective nomos in which the judges exist, considered unjust.
9 See Robert Cover, “Violence and the Word” 95 Yale Law Review 1601 (1986).
10 See Jerry Frug, “Argument As Character,” 40 Stanford Law Review 869 (1988).
11 The judges’ rhetorical move of presenting her role as that of merely interpreting the will of the people serves as a legitimizing discourse. Id., at 869.
12 Cover advances a number of legal and constitutional theories available to the judges and advanced by the lawyers representing the slaves which could have been adopted by the judges. See Cover, supra note 1, at 62-119 and 131-197.
13 Id.
14 See e.g. Hannah Arendt, “‘Eichmann in Jerusalem:’ An Exchange of Letters between Gershom Scholem and Hannah Arendt,” in Jew as Pariah, ed. by Ron H. Feldman (1978) pg. 248-9.
15 In reading Arendt as ethically clearing a space in which politics and judgment is held to be both necessary and impossible, I am suggesting a connection between Arendt and what certain contemporary philosophers have called ethical deconstruction. See e.g. Drucilla Cornell, The Philosophy of the Limit, (1992) pgs. 81-90 and Jaques Derrida, “The Force of Law,” 11 Cardozo Law Review 919 (1990). Ethical deconstruction, as developed by Jaques Derrida and Drucilla Cornell relies on what they call a double move in reading through which the reader must both be responsive to what is being read, and also take responsibility for what the reader makes the text become as a result of his reading. Translated into the sphere of ethics, the subject must recognize that the Other she confronts exists as other and can never be known. No matter how one tries to bring the Other into oneself, the Other as Other always resists such a sublimation and maintains itself as Other through its excess—its joussiance— which cannot be unmediately represented. The Other therefore imposes certain limitations on an ethical subject’s attempt to know, to understand, or to read the Other. An ethical reading is one in which the reader is understood to exercise responsibility to the otherness of the text, a self-imposed limit to the reader’s claim of autonomy which respects the integrity of the other. Likewise, ethical judgment requires that the judge take seriously the particularity of the person be judged and refrain from unproblematically subsuming particular persons and events under general rules. For a more detailed analysis of ethical deconstruction in Cornell’s philosophy, see my review of Cornell’s work, “Risk of the Self: Drucilla Cornell’s Transformative Philosophy,” 9 Berkeley Women’s Law Journal 175 (1994).
16 Hannah Arendt, Eichmann in Jerusalem (1963) at 252 [hereafter Eichmann].
17 Arendt notes that Eichmann had never read Mein Kampf (Id. at 33) and professed to have Jewish friends and family which he presents as proof that he had no ill will toward Jews (Id. at 29-30).
18 Id. 276
19 Arendt argues that Eichmann understood himself and reality only through ‘officialese,’ what he called his only language. Officialese, the language of clichés and empty talk proved to be “the most reliable of all safeguards against the words and the presence of others, and hence against reality as such.” Id. at 49.
20 Hannah Arendt, The Human Condition, (1958) pg. 5 [hereafter HC].
21 Eichmann, supra note 16, at 33. In his search for security and prestige, Eichmann is similar to what Arendt terms the pater familias, the family man. [Hannah Arendt, “Organized Guilt and Universal Responsibility,” in Arendt, The Jew as Pariah, supra note 14, at 232.] In her early attempts to understand why so many ‘normal’ Germans participated in the Nazi genocide machine, Arendt suggests that the ‘chaotic economic conditions of our time’ have uprooted families and elevated a concern for security to the forefront of the bourgeoisie mind. For the sake of his economic security and his family, the bourgeoisie family man, Arendt argues, “was ready to sacrifice his beliefs, his honor, and his human dignity. . . . The only condition he put was that he should be fully exempted from responsibility for his acts.” Id.
22 Id.
23 Id. at 234. Arendt quotes a dialogue between an American correspondent and a German soldier:
Q: Did you kill people in the Camp? A. Yes.
Q. Did you poison them with gas? A. Yes.
...
Q. What did you think of what was going on? A. It was bad at first but we got used to it.
Q. Do you know the Russians will hang you? A. (Bursting into tears) Why should they? What have I done? [Id. pg. 231, (quoting PM, Sunday, Nov. 12, 1944)].
As Arendt remarks, “Really he had done nothing. He had only carried out orders and since when has it been a crime to carry out orders?” at 231.
24 George Kateb, Hannah Arendt, (1984) pg. 76 citing Hannah Arendt, “Personal Responsibility Under Dictatorship.”
25 Cover, “Violence and the Word,” supra note 9, at 1613.
26 Id. 1625.
27 Id., at 1613-1615.
28 Arendt, Eichmann, supra note 16, at 24. This of course is a controversial claim in legal theory debates. See H.L.A. Hart, “Legal Positivism and the Separation of Law and Morals,” 71 Harvard Law Review, 598 (1958).
29 Arendt, Eichmann, supra note 16, at 147.
30 “For the sad and very uncomfortable truth of the matter probably was that it was not his fanaticism but his very conscience that prompted Eichmann to adopt his uncompromising attitude during the last year of the war, as it had prompted him to move in the opposite direction for a short time three years before.” Id., at 146.
31 Id. at 135-36. It is interesting to note that Hegel warned of the danger of Kant’s being read in this subjectivist way in the Preface to the Philosophy of Right. See Hegel, The Philosophy of Right, trans. by T.M. Knox (1952) pgs. 5-6. For an argument that Hegel’s attack on J.F. Fries and the nationalistic, ant-Semitic, and terrorist student movement which Fries supported is presented as a warning against the degeneration of Kantian philosophy into an “ethic of mere subjective intentions,” see “The Owl of Minerva and the Critical Mind,” by Shlomo Avineri, in Hegel’s Theory of the Modern State, ed. by Avineri (1972), pg. 120.
32 While Arendt recognized that outright resistance to totalitarian regimes is sometimes impossible, she does argue that even if one does not resist, he has the power to ‘do nothing’ (Arendt, Jew as Pariah, supra note 14, at 248). Even members of the SS, Arendt notes, could ask to be relieved of their duties without any penalties. (249) For another account of how individual people within post-totalitarian or bureaucratic regimes can exercise power simply by asserting their right to not participate in the regime’s programs, see Vaclav Havel, “The Power of the Powerless,” trans. by P. Wilson, in Vaclav Havel, Living in Truth ed. by Jan Vladislav, 1986.
33 Arendt, Eichmann, supra note 16, at 136.
34 See Martin Heidegger, The Metaphysical Foundations of Logic, (1984) pg. 138. The characteristic of thrownness (Geworfenheit) is a metaphysical presupposition of our being in, and therefore, to a certain degree, overwhelmed by and governed by, our world.
35 For a more involved account of these dilemmas see Cornelius Castoriadis, “The Greek Polis and the Creation of Democracy,” in Cornelius Castoriadis, Philosophy, Politics, and Autonomy (1991), pg. 81 [hereafter Castoriadis].
Continuation/Fortsetzung
2 The Act dealt primarily with the jurisdiction and appointment of federal magistrates who would issue certificates for the return of escaped slaves. The magistrate was to oversee the proceedings and examine the affidavits of the slaveholder or his representative and then issue a certificate for the slave’s return. Slaves themselves were explicitly prevented from testifying and the Act also compensated the magistrates when they returned slaves and only when they denied the slaveholder’s petition. Id., pg. 175.
3 See Article 4, US. Constitution.
4 See Cover, supra note 1, at 119-97.
5 Id. at 119.
6 Id. at 120 citing Jackson v. Bullock, 12 Conn. 39 (1837) (Judge Bissell dissenting). See also Justice McLean’s statement in Miller v. McQuerry that the question of the natural right of slavery “is a field which judges can not explore” (cited in Id. at 120).
7 For an interesting theory on why judges appear to welcome their subjection to law, see Slavoj Zizek, The Sublime Object of Ideology (1989). Zizek argues that the law of the law as it is expressed from Kant onwards, is that we must deny ourselves the free reign of our inclinations. The moral law, therefore, is precisely the renunciation of the desire to transgress the limits of the law—i.e. to subject oneself to the law. According to Zizek, what we in fact desire is the law itself.
8 The tragic flaw that compels the ante-bellum judges to uphold laws they consider inherently unjust is the supposed virtue of fidelity to the law. Like Captain Vere in Melville’s novel Billy Budd and Creon in Sophocles Antigone, the ante-bellum judges appeal to their role as agents of the legal order to justify actions which are, in the objective nomos in which the judges exist, considered unjust.
9 See Robert Cover, “Violence and the Word” 95 Yale Law Review 1601 (1986).
10 See Jerry Frug, “Argument As Character,” 40 Stanford Law Review 869 (1988).
11 The judges’ rhetorical move of presenting her role as that of merely interpreting the will of the people serves as a legitimizing discourse. Id., at 869.
12 Cover advances a number of legal and constitutional theories available to the judges and advanced by the lawyers representing the slaves which could have been adopted by the judges. See Cover, supra note 1, at 62-119 and 131-197.
13 Id.
14 See e.g. Hannah Arendt, “‘Eichmann in Jerusalem:’ An Exchange of Letters between Gershom Scholem and Hannah Arendt,” in Jew as Pariah, ed. by Ron H. Feldman (1978) pg. 248-9.
15 In reading Arendt as ethically clearing a space in which politics and judgment is held to be both necessary and impossible, I am suggesting a connection between Arendt and what certain contemporary philosophers have called ethical deconstruction. See e.g. Drucilla Cornell, The Philosophy of the Limit, (1992) pgs. 81-90 and Jaques Derrida, “The Force of Law,” 11 Cardozo Law Review 919 (1990). Ethical deconstruction, as developed by Jaques Derrida and Drucilla Cornell relies on what they call a double move in reading through which the reader must both be responsive to what is being read, and also take responsibility for what the reader makes the text become as a result of his reading. Translated into the sphere of ethics, the subject must recognize that the Other she confronts exists as other and can never be known. No matter how one tries to bring the Other into oneself, the Other as Other always resists such a sublimation and maintains itself as Other through its excess—its joussiance— which cannot be unmediately represented. The Other therefore imposes certain limitations on an ethical subject’s attempt to know, to understand, or to read the Other. An ethical reading is one in which the reader is understood to exercise responsibility to the otherness of the text, a self-imposed limit to the reader’s claim of autonomy which respects the integrity of the other. Likewise, ethical judgment requires that the judge take seriously the particularity of the person be judged and refrain from unproblematically subsuming particular persons and events under general rules. For a more detailed analysis of ethical deconstruction in Cornell’s philosophy, see my review of Cornell’s work, “Risk of the Self: Drucilla Cornell’s Transformative Philosophy,” 9 Berkeley Women’s Law Journal 175 (1994).
16 Hannah Arendt, Eichmann in Jerusalem (1963) at 252 [hereafter Eichmann].
17 Arendt notes that Eichmann had never read Mein Kampf (Id. at 33) and professed to have Jewish friends and family which he presents as proof that he had no ill will toward Jews (Id. at 29-30).
18 Id. 276
19 Arendt argues that Eichmann understood himself and reality only through ‘officialese,’ what he called his only language. Officialese, the language of clichés and empty talk proved to be “the most reliable of all safeguards against the words and the presence of others, and hence against reality as such.” Id. at 49.
20 Hannah Arendt, The Human Condition, (1958) pg. 5 [hereafter HC].
21 Eichmann, supra note 16, at 33. In his search for security and prestige, Eichmann is similar to what Arendt terms the pater familias, the family man. [Hannah Arendt, “Organized Guilt and Universal Responsibility,” in Arendt, The Jew as Pariah, supra note 14, at 232.] In her early attempts to understand why so many ‘normal’ Germans participated in the Nazi genocide machine, Arendt suggests that the ‘chaotic economic conditions of our time’ have uprooted families and elevated a concern for security to the forefront of the bourgeoisie mind. For the sake of his economic security and his family, the bourgeoisie family man, Arendt argues, “was ready to sacrifice his beliefs, his honor, and his human dignity. . . . The only condition he put was that he should be fully exempted from responsibility for his acts.” Id.
22 Id.
23 Id. at 234. Arendt quotes a dialogue between an American correspondent and a German soldier:
Q: Did you kill people in the Camp? A. Yes.
Q. Did you poison them with gas? A. Yes.
...
Q. What did you think of what was going on? A. It was bad at first but we got used to it.
Q. Do you know the Russians will hang you? A. (Bursting into tears) Why should they? What have I done? [Id. pg. 231, (quoting PM, Sunday, Nov. 12, 1944)].
As Arendt remarks, “Really he had done nothing. He had only carried out orders and since when has it been a crime to carry out orders?” at 231.
24 George Kateb, Hannah Arendt, (1984) pg. 76 citing Hannah Arendt, “Personal Responsibility Under Dictatorship.”
25 Cover, “Violence and the Word,” supra note 9, at 1613.
26 Id. 1625.
27 Id., at 1613-1615.
28 Arendt, Eichmann, supra note 16, at 24. This of course is a controversial claim in legal theory debates. See H.L.A. Hart, “Legal Positivism and the Separation of Law and Morals,” 71 Harvard Law Review, 598 (1958).
29 Arendt, Eichmann, supra note 16, at 147.
30 “For the sad and very uncomfortable truth of the matter probably was that it was not his fanaticism but his very conscience that prompted Eichmann to adopt his uncompromising attitude during the last year of the war, as it had prompted him to move in the opposite direction for a short time three years before.” Id., at 146.
31 Id. at 135-36. It is interesting to note that Hegel warned of the danger of Kant’s being read in this subjectivist way in the Preface to the Philosophy of Right. See Hegel, The Philosophy of Right, trans. by T.M. Knox (1952) pgs. 5-6. For an argument that Hegel’s attack on J.F. Fries and the nationalistic, ant-Semitic, and terrorist student movement which Fries supported is presented as a warning against the degeneration of Kantian philosophy into an “ethic of mere subjective intentions,” see “The Owl of Minerva and the Critical Mind,” by Shlomo Avineri, in Hegel’s Theory of the Modern State, ed. by Avineri (1972), pg. 120.
32 While Arendt recognized that outright resistance to totalitarian regimes is sometimes impossible, she does argue that even if one does not resist, he has the power to ‘do nothing’ (Arendt, Jew as Pariah, supra note 14, at 248). Even members of the SS, Arendt notes, could ask to be relieved of their duties without any penalties. (249) For another account of how individual people within post-totalitarian or bureaucratic regimes can exercise power simply by asserting their right to not participate in the regime’s programs, see Vaclav Havel, “The Power of the Powerless,” trans. by P. Wilson, in Vaclav Havel, Living in Truth ed. by Jan Vladislav, 1986.
33 Arendt, Eichmann, supra note 16, at 136.
34 See Martin Heidegger, The Metaphysical Foundations of Logic, (1984) pg. 138. The characteristic of thrownness (Geworfenheit) is a metaphysical presupposition of our being in, and therefore, to a certain degree, overwhelmed by and governed by, our world.
35 For a more involved account of these dilemmas see Cornelius Castoriadis, “The Greek Polis and the Creation of Democracy,” in Cornelius Castoriadis, Philosophy, Politics, and Autonomy (1991), pg. 81 [hereafter Castoriadis].
Continuation/Fortsetzung