At the Brink of Law: Hannah Arendt's Revision of the Judgment on Eichmann

social research Vol. 81 : No. 3 : Fall 2014 585

Christoph Menke At the Brink of Law: Hannah Arendt’s Revision of the Judgment on Eichmann

hannah arendt’s eichmann in jerusalem1 begins with the usher proclaiming

the words “The House of Justice” as the three judges enter the court-

room. It ends with a repetition of the death sentence that was finally

pronounced on Eichmann, with the drastic statement “He must hang”

(or a bit less drastic in the German translation: “Er muß sterben”). At

the beginning, the court is obliged to ask “Guilty or not guilty?”—to

address this question as an open one, to expose it to the “irreducible

risk,” as Arendt puts it with a phrase from Otto Kirchheimer (263; G:

388), of being answered in one way or perhaps another. For only if we are

not simply witnessing “a spectacle with prearranged results” (263; G:

388) have we really entered a House of Justice—only if we have aban-

doned the sphere of prejudice or foregone conclusions, of desires for

revenge, of personal vanities, of political strategies and calculations. At

the end, however—and this is not a matter of psychological need (for the

sake of the peace of mind of the survivors) or a political demand (for the

sake of the sovereignty of the state) but a juridical necessity, a matter of

justice—there must be a judgment, a sentence, which finally answers

the question. The very meaning of judicial judgment—what separates

the exercise of law from that of revenge—is to answer the question of

guilt in such a way as to resolve the dispute at issue.

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It is between this beginning, with the opening of the House of

Justice, and this end—with the death sentence pronounced on Eich-

mann—that the process in court unfolds. And this is precisely what

Arendt’s book is concerned with. It is concerned with Eichmann in Jeru-

salem, in that specific court. It is not concerned with Eichmann in Ber-

lin, Vienna, Prague, Budapest, or even Theresienstadt and Auschwitz.

That is, Arendt’s book is concerned, can be concerned, with Eichmann

in Berlin, Vienna, Prague, Budapest, or Theresienstadt and Auschwitz

only insofar as this is addressed (or should have been addressed) in his

presence before the court in Jerusalem. The book is not a work of his-

tory, not a contribution to political science, not a treatise on morality

or politics (and not both of the latter at once).2 It is concerned solely

with the judicial process of the case in question (that is, with the at-

tempt to judge this case in accordance with justice).

Arendt’s account is historical, political, or philosophical only

insofar as and to the degree that the question concerning the historical

circumstances, the political structures, and the philosophical consid-

erations involved is significant or not in the context of a judicial pro-

cess. Both in the book itself and in the controversies that subsequently

arose from it, Hannah Arendt repeatedly emphasized this strictly ju-

ridical perspective, although that does not seem to have helped her

very much.3 The book has been criticized as highly prejudiced his-

tory, as an ill-informed exercise in political science, as a form of philo-

sophical speculation that revels in paradox. Yet Arendt’s book is solely

concerned with Eichmann in court, with Eichmann in the House of

Justice. Her book is a “report” (278; G: 49) on just this.

but what does it mean, and what does it require, to report on eichmann

before the court? The articles in which Arendt’s text first appeared in

the New Yorker, beginning on February 16, 1963, were presented under

the title “A Reporter at Large.” This is why Arendt’s text, if it cannot be

regarded as history, political science, or philosophy, has been treated as

a species of journalism or reportage instead (or as a “political-philosoph-

ical literature”). 4 But this really explains nothing. The decisive point is

Hannah Arendt’s Revision of the Judgment on Eichmann 587

that her “report of a trial” (283; G: 54) cannot reproduce what transpired

before the court in Jerusalem simply as a fact. To report on a trial in

court requires us to acknowledge the “interests of justice” (283; G: 54) in

the name of which the trial is to be conducted—or perhaps in contrast

to how it is in fact conducted. Arendt’s report investigates “nothing but

the extent to which the court in Jerusalem succeeded in fulfilling the

demands of justice” (296; G: 68). Her juridical perspective on Eichmann

is the perspective of justice. That is what we are concerned with here:

the task of passing a just judgment upon Eichmann—and with the ques-

tion of how and whether this can be secured in a judicial process. We are

concerned with the realm of law as a medium of justice, with justice in

the form of law.

This becomes clear, quite emphatically if not exactly for the

first time, when Arendt herself passes judgment at the end of Eichmann

in Jerusalem. For in Arendt’s book, Eichmann is sentenced to death not

once but twice: once by the court in Jerusalem under presiding judge

Moshe Landau and then again—with a different justification but en-

dorsing this same judgment: Eichmann must die—by Hannah Arendt.

She reports on one judgment, one death sentence, but she passes the

other one herself. Eichmann in Jerusalem is thus no mere reproduction

of the facts but simultaneously a repetition, a performance, a reenact-

ment, of the judicial process. Arendt appoints herself as—in writing

her book she makes herself into—the authority that subjects the trial

in court to a further examination. Her report is simultaneously a re-

view of the process on which she reports. She thereby places herself in

the position of the highest court; it is therefore no surprise if she was

accused on all sides of arrogance.5

A judicial review offers no fresh investigation of the facts and

introduces no new witnesses (this is what distinguishes it from the

strict appeal process that was also conducted in Jerusalem). Arendt

says that her report “can discuss only the matters which were treated

in the course of the trial, or which in the interests of justice should

have been treated” (283; G: 54); “its main source is the transcript of

the trial proceedings” (278; G: 49). In a review one looks back on a

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prior process and examines whether the court’s judgment of the case

was appropriate (Günther 1993)—that is, whether the court attended

to all relevant judicial aspects of the case and established the correct

relationship between them. And since this can only be accomplished

in the light of juridical norms, the examination involved in the re-

view simultaneously touches on the question of whether the court has

drawn on the relevant laws and has correctly interpreted and applied

them. The review is concerned not with the facts but with the court’s

understanding of the law. And thus Arendt also examines whether in

the process in Jerusalem the judicial problems that arose were rightly

identified and addressed. The other side of the arrogance with which

Arendt sets herself in the place of a highest court lies in subjecting

herself in the strictest manner to the discipline of legal judgment;

nothing is more contemptible to her than those “untrammelled inspi-

rations of the intellectuals who, on the contrary, are not in the least

interested in facts but treat them merely as a springboard for ‘ideas’”

(282; G: 54).

Every judicial review thus involves a twofold demand: it must

think through once again the legal problems that arose in the initial

process, but it must also arrive once again at a judgment—a judgment

as to whether the initial judgment was just or unjust. The review must

raise problems—in other words, it must think, and must emphatically

and now in fact conclusively or definitively judge.

This twofold demand, to think and to judge, is always already

marked by a tension that is evident in especially acute form in Arendt’s

review of the Eichmann trial. For in this trial the legal problems that

must be thought through—or rather, which should have been thought

through, for in fact in Jerusalem they were not—are nothing less than

problems of the law itself. The problem Arendt’s review of the process

in Jerusalem exposes is not merely the inappropriate manner in which

the legal rules are applied but rather “the inadequacy of the prevail-

ing legal system and of current juridical concepts” themselves (291;

G: 64). This is the critical insight achieved in Arendt’s review: that

there are no legal rules that could be applied to the act that was to be


judged—indeed, that the form of law itself was inappropriate to the

act in question.

Thus, Arendt’s review of the trial is concerned not simply with

the appropriateness or otherwise of the judgment that was passed in

Jerusalem, but with the appropriateness of law itself with regard to

these acts. It is concerned with a self-reflection of law—a reflection

on law and its limits, but still a reflection internal to law. In taking her

review of the proceedings in Jerusalem to the point of such radical

self-reflection, Arendt puts herself not merely in the position of the

highest court of law, as it first seemed, but above it. Above the highest

court of law but within the law: this is the paradoxical position from

which Arendt’s book is written. Or, this is the paradoxical position

that Arendt’s book would inscribe within law itself: a self-reflection of

law on that which in principle eludes it.

In taking this approach, Arendt comes to a double judgment

on the Jerusalem court. On the one hand, she judges that it was blind

to the fundamental questions of law that this specific case, the case

of Eichmann, raised for the court. (Arendt speaks of a “failure of the

Jerusalem court” [272; G: 398] in this connection.) The court was not

aware, was unable to see or to understand—but how could it even have

done so without putting itself into question?—that these actions and

this agent lead law itself to its very limits. On the other hand, Arendt

repeats and thereby reinforces the judgment that the Jerusalem court

did pass upon Eichmann. Her double judgment on the proceedings

in Jerusalem amounts to this: the court could not fully see the fun-

damental problem of law that is raised here, namely, that the acts

of Eichmann problematize or even put in question law as such. Yet,

while the court half-misrecognized and half-repressed this point, it

still judged correctly: Eichmann must hang. The court was blind to the

quite fundamental problems of law raised by the legal process itself,

yet it came to the right—the just—conclusion, the most severe judg-

ment, an entirely irreversible one, that a court can possibly pass (and

which therefore perhaps no human court is ever competent to pass).

Is this not a contradiction? Is legal judging not defined by deriving its

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legitimacy solely from its own procedure? And does it not profoundly

violate this procedure, and thus also the judgment in which it culmi-

nates, if it is not conducted with an awareness of all the problems of

law that arise in this regard?

In her highly instructive Postscript to Eichmann in Jerusalem, Ar-

endt suggests a way of resolving this contradiction. It consists in the

claim that the judgment by the Jerusalem court was not legal in kind

or, more precisely, did not have a legal form. “If we look more close-

ly into the matter we will observe without much difficulty that the

judges … really passed judgment solely on the basis of the monstrous

deeds. In other words, they judged freely, as it were, and did not really

lean on the standards and legal precedents with which they more or

less convincingly sought to justify their decisions” (291-2; G: 64). 6 They

judged “freely; there were no rules to be abided by, under which the

particular cases with which they were confronted could be subsumed.

They had to decide each instance as it arose, because no rules exist-

ed for the unprecedented” (292; G: 65). The Jerusalem judges thereby

judged—albeit without knowing it—exactly like those few people in

Germany who had once exercised their own thought and judgment in

resisting National Socialism. But what solution does this offer to the

question regarding the justice of their judgment?

Arendt herself speaks of the “inconsistencies” that emerge in

“a field so obsessed with consistency as jurisprudence” (291; G: 64).

However, the field of jurisdiction is not “obsessed with consistency”

for pedantry. On the contrary, it is the concern with rigor and con-

sistency, and this alone, that underlies the promise of justice in law.

“Inconsistencies,” then, such as those the judges in Jerusalem judged

“freely” rather than simply in accordance with law, judged without

recourse to universal rules, affect the ground of law itself. For what is

it that distinguishes such free judgment from the mere arbitrariness,

and thus the prejudice, from the suspension of which alone the legal

process draws its legitimacy?

So far I have attempted to formulate and to answer a single

question: what is Arendt trying to do in her book, or what is the book


basically about? This question has been answered in completely differ-

ent ways from the moment the book first appeared. I have suggested

that the answer to the question concerns the relationship between

Eichmann in Jerusalem, the book, and Eichmann in Jerusalem, the trial.

The book is a “review” that stands at once inside and outside, and

thus at the limit or brink of law, because it shows that this was, albeit

unwittingly, already the paradoxical position of the Jerusalem court—

because this is what the Eichmann case demanded.

For all her criticisms of the court’s blindness or insensitivity to

the problems involved, Arendt justifies the procedure of the Jerusalem

court. This concerns not only its final judgment but also the way in

which its judgment is made. She wishes to show that the legal “incon-

sistency” of a free judgment that transpires without strict reference to

legal norms is the consistent conclusion that springs from the intrin-

sic questioning of law that this legal case provokes—a conclusion that

the judges in Jerusalem drew without realizing it because they failed

to understand how right they were in suspending the legal form of

judgment. Arendt wishes to show why they were right, and she does so

by developing this conclusion strictly and consistently from the logic

of law; or, more precisely, from justice in the form of law, from the

legal form of justice.

It is only when we understand that “justice demands that the

accused be prosecuted, defended, and judged” (2; G: 71), and that for

the sake of justice “all the other questions of seemingly greater im-

port—of ‘How could it happen?’ and ‘Why did it happen?’ of ‘Why

the Jews?’ and ‘Why the Germans?’” etc., “be left in abeyance” (2; G:

72)—that we can also understand that the Jerusalem judges finally had

to pass judgment as they did, that they had to suspend the form of law

itself. Their “inconsistency” in a “field so obsessed with consistency as

jurisdiction,” in judging freely and without recourse to rules, springs

from a deeper consistency precisely because the legal concern with

consistency proves inconsistent in the case of Eichmann. For the free

judgment the Jerusalem judges actually practiced is not an external

alternative, alien to legal judgment. On the contrary, free judgment is

592 social research

the hidden presupposition of legal judgment. At the point where judg-

ing in accordance with law encounters its limit, in the crisis of law,

free judging is revealed as the ground of law. In showing this, in its re-

enacting of the trial, Eichmann in Jerusalem does indeed not answer all

those questions of “seemingly greater import,” but it does answer this

single question: 7 can there be justice in relation to Eichmann? Can we

administer justice with regard to Eichmann’s deeds?

but even if we thus describe the intention of arendt’s book, it is still an

entirely open question whether or how this program can be realized. Let

us first recall the basic thesis of the work: the case of Eichmann—the

acts of which he is accused and the way in which he committed them—

in principle elude the practice of legal judgment. This, however, by no

means implies the position, defended among others by Martin Buber

and repeatedly rejected by Arendt (248–9; G: 369), that Eichmann cannot

be judged at all. He can indeed be judged and sentenced, and must even

be sentenced to death; and he must be judged and sentenced in this

way for the sake of law. The law thus requires a nonlegal judgment on

Eichmann: the form of law is suspended, but suspended in order to real-

ize the form of law. As the Other of law, such nonlegal judging is at once

the ground of law.

What is at stake in the collapse of legal judging here can already

be seen in the first of the three “fundamental problems,” which the

case of Eichmann raises in Arendt’s view.8 This concerns the jurisdic-

tional competence of the Jerusalem court with regard to crimes that

Eichmann committed in Germany or in the areas of Eastern Europe

under the occupation of German military forces until 1945, and of

which he stood accused before this court on the basis of an Israeli law

that was passed only in 1950. This question involves a host of juridical

details (cf. Baumann 1963, 110-121), but it is important above all to

recognize why it must be taken seriously. For the question regarding

the competence of the court—that is, the question of who can legiti-

mately judge the case—leads into the heart of legal judgment.


The exercise of such judgment is legitimated inasmuch as one

can only lawfully be judged by a representative of one’s own polity or

community. A foreign jurisdiction has no legal authority over us, un-

less we have ceded it this power by voluntarily entering (unlike Eich-

mann) the territory where it exercises such authority. The fact that

“every sovereign state is jealous of its right to sit in judgment on its

own offenders” (15; G 88) is not simply an expression of a now anti-

quated principle of state sovereignty. The idea is also much older than

this principle and may be traced back to the emergence of law from

the break with the world of myth. In the Oresteia of Aeschylus, Athena

gives expression to this fundamental idea by withdrawing as judge

herself and assigning this role to “the finest of my citizens.”9

In the context of law, and this is eminently true in the secular-

ized modern world, the representatives of the community judge as to

whether one of its members has violated the rules in question. The

accused can be judged only by representatives and in accordance with

the laws of his or her own community: in the context of law the ac-

cused is judged in accordance with his own standard, and the “injury [Ver-

letzung] which is inflicted on the criminal” is one that the criminal

experiences as “his right”; it is “a right for the criminal himself” (Hegel

1970, § 100; 1991, 126). Right in the legal sense is always one’s own

right, and an alien right is not right at all. The justice and greatness

of legal judgment are found in the fact that the sentence pronounced

is divested of all that is alien, external, and merely “fated,” and can

count as one the accused would pass upon himself—if he were pre-

pared to view the matter from the perspective of the community of

which he is a member.

Hence, the question regarding the competence of the court can-

not simply be regarded as a matter of political calculation or mere

juridical subtlety. On the contrary, it leads to the core of justice in the

form of law—to the ground of that promise of justice that law offers,

and which it can only strive to fulfill through the form in which it

judges. The promise is for us to be judged not by some alien authority,

not according to alien laws, but in such a way that the judgment can

594 social research

claim to represent the judgment of the accused himself. In the sen-

tence that the court pronounces on the accused, the accused himself

must have been able to speak.

There is a simple solution to the problem of competence, which

the court in Jerusalem obviously faced in arraigning a foreign citizen

for acts committed in a foreign territory (and in proceeding in ac-

cordance with a law that did not exist at the time in question). The

technical expression that is relevant here is “universal jurisdiction.”

This means that any national state can claim juridical competence

with regard to crimes that violate the universal rules or principles of

law of nations—at least for so long as there is still no international

court of justice. But in the proceedings in Jerusalem, according to Ar-

endt, it remained unclear to the end whether the destruction of the

Jews—Eichmann’s greatest crime, which thus stood at the center of

the proceedings—was “of a different nature from all the atrocities of

the past” (265; G: 390). That is why he was accused of, among other

things, “crimes against the Jewish people.” This implied, although it

never became entirely clear, that the destruction of the Jews was to

be seen only as the ultimate and most instance of the anti-Semitic

“atrocities of the past”: “the most horrible pogrom in Jewish history”

(265; G: 390).

The destruction of the Jews, however, is an entirely different

kind of crime because “an altogether different order is broken and an

altogether different community is violated” (270; G: 395). Auschwitz

was a case of state-directed genocide, and if it is true of every crime

that the perpetrator must be brought to justice “because his act has

disturbed and gravely endangered the community as a whole and not

because, as in civil suits, damage has been done to individuals” (259;

G: 382), then these “modern, state-employed mass murderers must be

prosecuted because they violated the order of mankind, and not be-

cause they killed millions of people” (269; G: 395). The killing of mil-

lions of human beings amount to so many acts of murder, and each

of these individual murders demands to be acknowledged and inves-

tigated and the perpetrators brought to judgment.10 But the crime


involved in the destruction of the Jews, Eichmann’s crime, is quite

different: insofar as the Nazi regime “wished to make the entire Jew-

ish people disappear from the face of the earth … the new crime, the

crime against humanity—in the sense of a crime ‘against the human

status’ or against the very nature of mankind—appeared” (266; G:

391). For this is “an attack upon human diversity as such, that is, upon

a characteristic of the ‘human status’ without which the very words

“mankind” or “humanity” would be devoid of meaning” (266; G: 391).

As far as the question regarding the competence of the court is

concerned, the significance of this sharp distinction between the de-

struction of the Jews as a crime against humanity “perpetrated upon

the body of the Jewish people” (267; G: 391) and all other crimes, includ-

ing those against the Jewish people, is clear: it is meant to reestablish

the condition for exercising judgment in accordance with justice—the

condition that one is judged and condemned solely according to the

rules and by representatives of one’s own community. For “mankind”

or “humanity” refers not to humaneness, not to some more or less

vague and variable rules or principles (among which Arendt also in-

cludes “the compromised phraseology of the rights of man” (269; G:

394; cf. Menke 2007). “Humanity” is a political concept. It designates

the global community within which all specific communities coexist

on earth. Or it is that global community whose existence is the condi-

tion upon which the possibility of every individual community’s exis-

tence rests. Through his membership in his own community Eichmann

also belongs to this global community, so that if he is condemned on

account of his crimes against humanity, and thus in accordance with

the fundamental laws of humanity, he is not being subjected to some

alien law, but is being judged by his fellow human beings in accor-

dance with his own law.

Since Eichmann was accused in Jerusalem because of his par-

ticipation in the destruction of the Jews, accused of “crimes against

the Jewish people” in accordance with the Israeli law of 1950, the quite

fundamental constitutive condition of justice—that of being judged ac-

cording to “his right” (Hegel)—was put into question. The other legal

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category that the same Israeli law defined after the process of the

Nuremberg trials, the category of “crimes against humanity,” was

supposed to reestablish this constitutive condition of justice. Thus,

compared with the Nuremberg trials (which placed “war crimes” at

the center of attention and thus remained incapable of even grasping

the crimes involved in the destruction of the Jews), the Eichmann trial

much more clearly and emphatically represented the beginning of a

development that eventually culminated in the establishment of an In-

ternational Court of Justice. It was an attempt at juridical normaliza-

tion: an attempt to reestablish the conditions of the normal practice

of legal judgment for the crimes of genocide, to accommodate these

crimes within the general order of law.

In Eichmann in Jerusalem, Hannah Arendt not only clearly un-

derstood, right at the beginning of this development, the logic of its

underlying argument, but she also already grasped the contradiction

inscribed within it—a contradiction that is more than ever concealed,

even repressed, today. The contradiction is this: the indictment of

Eichmann for crimes against humanity reestablishes juridical normal-

ity because it thereby also inscribes Eichmann within the universal

community of “humanity,” the community whose fundamental laws

he has violated. Yet the abnormality, the unprecedentedly horrific

character of Eichmann’s acts, consists precisely in the fact that they

are directed against this universal community of “humanity”: it is pre-

cisely this community that Eichmannn has attacked and attempted

to destroy. Or, Eichmann’s crime is an “offence against the species.”

He is no ordinary criminal but an “offender against the species [Gat-

tungsbrecher],” as Zimmerman (2005) puts it (referring to Arendt’s cor-

respondence with Scholem in this connection).

That is why Arendt calls Eichmann an “enemy of humanity”—a

hostis generis humani (258; G: 382). An ordinary criminal is not an enemy

of the community whose rules he breaks, for he does not challenge

these rules (and thereby this community) themselves. Rather, he self-

ishly tries to exempt himself from these rules, and his own criminal

act presupposes, indeed requires, the maintenance of such rules by the


rest of the community. Even the criminal for whom, like the pirate,

the category of “enemy of humanity” was fashioned, and who acts “in

defiance of all law, acknowledging obedience to no flag,” simply places

himself “outside” the legal order (258–9; G: 383).11 Eichmann, by con-

trast, is the “new type of criminal, who is in actual fact hostis generis hu-

mani” (274; G: 400f.) for he does not simply demand to exempt himself

from or stand outside its laws, but rather wishes to abolish these laws

and to destroy humanity as a community.

But if Eichmann is really the enemy of humanity, is not then

the order of humanity, in whose name and by whose representatives

he is to be judged, in principle alien and external to him? The con-

cept of a crime against humanity, which in the Eichmann case was

supposed to reestablish the normality of legal procedure, seems to

fracture within itself: if the oppositional or “contrarian” character of

this criminal assumes the meaning of enmity itself, then we are no

longer dealing with a criminal act in the usual legal sense. And this

is also true for the only judgment that is possible here: the judgment

on the enemy of humanity no longer measures the act, as is legally

demanded, in accordance with a law that is common to judge, criminal,

and victim alike. Rather, the judgment turns the enmity that the doer

has declared against this law against the doer himself. This hostile

judgment of law pronounced on Eichmann as the enemy of law can be

expressed as follows: “Because 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, he had to be elimi-

nated” (275; G: 402). The judgment simply says that there can be no

community with Eichmann: no one can “share the earth” (277; G: 404)

with the enemy of humanity. The enmity that Eichmann declared on

humanity is applied to himself.

But it is precisely in this judgment upon the crime against

humanity that the form of law itself breaks down. The sentence pro-

nounced by the Jerusalem judges is inevitable—“they would have made

themselves utterly ridiculous, I feel, if they had not pushed the thing

to its only logical conclusion,” wrote Arendt to Mary McCarthy (cited

598 social research

in Young-Bruehl 2004, 373) —but it was not a sentence in accordance

with the legal procedure and form. It is not, however, the party of the

“victors” that speaks in this judgment, in this sentence, as the old Nazi

critics of the Nuremberg trials and the proceedings in Jerusalem liked

to claim. There is no legal relationship between the law and its enemy.

If the crime against humanity is directed against the fundamental con-

dition of political existence, against the fundamental rules of life in a

human community,12 then we are no longer speaking of any ordinary

crime, a crime which, if only indirectly, still presupposes that commu-

nity. It is directed against this community. That is why the judgment

that Eichmann’s acts are a crime against humanity implies the very

opposite of the juridical normalization that it attempts to furnish. For

in this judgment law combats its own enemies, and it can only do so by

suspending the condition of justice that belongs to all legal judgment.

The basis for this collapse of law lies in the fact that we are deal-

ing with the very ground of law itself. Crime becomes enmity—and

that is why the crime against humanity is enmity—when it challenges

not simply the validity of a legal rule but rather the fundamental rule,

the rule of legal rules—that is to say, the condition of law itself.13 And

challenges it not simply on its own account, by way of personal excep-

tion—like the pirate and even the greatest of criminals—but rather

everywhere and entirely. In Jerusalem—much more clearly and con-

sistently than in the Nuremberg trials, which were concerned with

war crimes, and also unlike the later Frankfurt trial with regard to

Auschwitz—one was dealing with an act that strove to destroy law in

its ultimate or deepest foundation, to destroy the order of humanity

as an order of plurality. And thus the law was here confronted with a

fundamentally aporetic task. Law had to judge in order to assert itself

against this crime, and law was unable to judge—to judge as it must

want to judge if it is to be described as just.

up until this point i have discussed the problem of the proceedings in

Jerusalem so as to show that law is dealing here not with a criminal but

with law’s own enemy, one for whom the law can never be “his own


right” and for whom therefore the judgment or sentence can never be

just. This problem becomes even more acute, even irresolvable, when

we recognize that Eichmann was not an enemy of humanity out of

fanaticism, and not even out of baser motives of one kind or another.

“He was not at all, as one witness called him, a ‘Landsknechtsnatur,’ a

mercenary who wanted to escape to regions where there are no Ten

Commandments” (123; G: 219). On the contrary, according to Arendt’s

emphatic and paradoxical thesis, he was an enemy of humanity from

“thoughtlessness.” “It was a sheer thoughtlessness—something by no

means identical with stupidity—that predisposed him to become one of

the greatest criminals of that period” (285; G: 57). This (and only this) is

what the phrase regarding the “banality of evil” was meant to capture.14

The evil in question is banal precisely because it can only be de-

scribed in the most banal of terms, in a way that borders on the seem-

ingly innocuous, as when Arendt says that Eichmann, in contrast to

figures such as Iago, Macbeth, or Richard III, “merely, to put the mat-

ter colloquially, never realized what he was doing” (285; G: 56; all empha-

sis in quotations in original unless otherwise noted). Yet this banality

refers to something utterly fundamental: to lack thought is to be inca-

pable of breaking through the “mechanism” of second nature, which

automatically and immediately connects situations, impressions, and

opinions with one another. It is to be incapable of considering what

one does in terms of a possible alternative, or indeed even simply from

another perspective—incapable of judging the rightness or appropri-

ateness of one’s actions. This “almost total inability [on Eichmann’s

part] ever to look at anything from the other fellow’s point of view”

(45; G: 124) is nothing less than the “inability to think” (47; G: 126).

Lack of thought is the essence of intellectual and spiritual in-

capacity—the lack of spirit or the incapacity for freedom. It is clear

straight away why it is a fundamental problem for any legal process to

be faced with a perpetrator of this kind. If it is a condition of justice

for any act of legal judgment that the one judged is able in principle

to pass this judgment himself, then he must be able to judge in order

to be able to be judged. We can clearly see this from the fact that

600 social research

consciousness of committing wrong or “intent to do wrong is nec-

essary for the commission of a crime” (274; G: 401). Individuals for

whom this is not the case, those who cannot speak for themselves

since they are incapable of conducting themselves on the basis of their

own judgment, are not liable or “competent” to stand in judgment

before a court. But this does not apply here. The pathological case,

where the law declares such judgment is impossible, must always

represent the exception to normal practice. But Eichmann is (or was)

the normal case. Law can only work with the following alternative:

either the agent is incapable of judgment, and then he is a pathologi-

cal or abnormal case who is, exceptionally, not judged by the legal

process; or the actor is a normal case, and then he is capable of judg-

ing and can therefore be judged in a legal process. But this alternative

breaks down in the case of an agent such as Eichmann, for in the

world of National Socialism the capacity to judge freely or judge for

oneself had itself become, if not wholly impossible, then certainly the

improbable exception.

A consequence of this is that the category of the “unlawful or-

der” cannot be applied here. One of the conditions for applying this

category is that it does not require anything extraordinary; all it re-

quires is that one “refuses to carry out orders that run counter to

one’s own ordinary experience of lawfulness and hence be recognized

by him as criminal” or “manifestly unlawful” (145; G: 246). In terms

of this definition (which Arendt takes from Israeli criminal law), the

orders that were given to Eichmann were not unlawful; they corre-

sponded to the normal situation or to his experience of lawfulness.

But the consequences that the normality of such incapacity to think

and judge have for the question of law are obviously far-reaching—

they affect law in its very foundations. The fact that this incapacity

(to judge) has itself become normality means nothing less than that

“the voice of conscience” forfeits its autonomy and speaks “exactly

like the voice of respectable society” (124; G: 220), that “morality col-

lapses into a mere set of habits,”15 that the concept of “law” loses its

“common equivocal meaning”—signifying both law that is valid in


itself and given or positive law—and now simply signifies one thing

(145; G: 246f). This means that identity takes the place of difference,

that normative difference—namely, the difference between normativ-

ity and normality—disappears, or rather, that the difference between

normativity and normality becomes abnormal, becomes an exception.

It means that spirit falls—into a mere mechanism, into nothing but

second nature (cf. Menke 2013b).

The first or most fundamental demand of all right or law (ac-

cording to the Roman conception) is honeste vivere—to “live honor-

ably,” or in Kant’s version: “Be an honorable [rechtlicher] human be-

ing.”16 Kant takes this to mean that “lawful honor” in the first place

demands of everyone that they “assert their worth as a human being

in relation to others.” This demand follows from the “right [Recht] of

humanity in our own person” (Kant 1966, 42; 1996, 392). The crime

against humanity that Eichmann commits through his lack of thought

is thus directed not only against humanity as the global community

in which a plurality of peoples and their specific forms of law can

alone exist. Eichmann’s crime against humanity is directed against

the humanity in his own person: against his own “status as a human

being.” As Hegel puts it, the first imperative of right is: “be a person”

(Hegel 1970, § 36; 1991, 69)—that is: be capable for right. Be capable of

possessing rights, of participating in the principle of right, insofar as

you can make the distinction between right and what is contrary to

right, because you can make and uphold the distinction of law, namely

in distinction from a condition devoid of right, from the condition of

(second) nature.

Law demands the capacity for right—demands that we assert the

worth of humanity (Kant), the “status of a human being” (Arendt) in

every person—but at the same time it must in every individual case as-

sume that this fundamental demand is fulfilled. Or law must abstract

from whether this demand, the demand to respect the right of human-

ity in one’s own person by respecting right as such, is actually real-

ized in every individual case (which is why Hegel calls such right “ab-

stract”). The concept of right presupposes that everyone is a “person”

602 social research

or (in the emphatic juridical sense of the term) a human being.17 But at

the same time it is also true that such a being is not something given

by nature; no one is already a person in this sense by nature. By nature

we can precisely not be regarded as persons, or as capable of right.

“The human being is himself free, is in possession of himself, only

through culture and education” (Hegel 1970, § 57; not included in the

English translation).

This is what defines the concept of man, which forms the pre-

supposition of law or right (the constitutive “humanism” of law). Ac-

cordingly, the human being is constituted by the fact that it “is what

it is only through itself and as infinite return into itself from of the natural

immediacy of his existence” (Hegel 1970, § 66; 1991, 96) The human

being consists solely in the way that and the fact that he makes him-

self into a human being; his being is a becoming, a process of self-

making or self-formation. A person capable of right, that is, capable

of possessing and respecting right, is the essence (or concept) of man,

but this essence or this concept requires (self-) actualization. The being

(as person) that right presupposes involves the accomplishment of an

“act” (Hegel), the act of making (oneself) a person. The (“humanistic”)

presupposition of law or right—the presupposition that right supposes

every time it posits itself as right—is the successful cultural accom-

plishment of this self-formation.

Since the presupposition of law or right is thus not simply a

being but a process of making, and therefore an achievement, law

must also always reckon with the possibility of failure. In the process

through which man makes himself (into a human being) there “lies the

possibility of an opposition: in that what the spirit is only in itself may

differ from what it is for itself (see § 57), or conversely, what it is only

for itself – as with evil in the case of the will – may differ from what it

is in itself” (Hegel 1970, § 66; 1991, 96). Thus, since man is not always

already a person capable of right, and must first make himself into

such a being, it is also possible for him not to achieve this, whether be-

cause he turns against the laws of right or, even more fundamentally,

because he has not yet even liberated himself to the “point of view”


of right— that is, to the capacity for right. But in the ontology that is

internal to right this can only be the exception, that which is abnor-

mal: a deviation from its own essence. And this is the assumption law

must make, and which in the case of Eichmann it cannot make. The en-

mity toward humanity—that is, toward law—that Eichmann’s actions

reveal lies not in suffering this incapacity for right—this can always

happen by way of exception as a miscarrying of one’s own essence—

but rather in paradoxically willing this incapacity. That Eichmann is

an “enemy of humanity” from his own “lack of thought,” his own in-

ability to think, thus signifies precisely that he does not will to form

himself into a person. Eichmann’s enmity is directed against himself,

against his own formation as a person capable of right, or against his

own capacity for freedom. Eichmann’s enmity toward the capacity for

right is paradoxical (and thus resists comprehension) since it can only

be described as willing the incapacity to will: as the affirmation of

“the false [unwahren] point of view whereby the human being exists as

a natural entity and as a concept that has being only in itself, and is

therefore capable of enslavement” (Hegel 1970, § 57; 1991, 87). Eich-

mann’s enmity toward humanity lies in the fact that he wills slavery—

including his own; this is “voluntary servitude” in its ultimate form,

which eludes our comprehension, and in which the banality of this

incapacity and the monstrosity of its voluntary character are endlessly

reflected into one another.

In the case of Eichmann, law must pass judgment upon acts that

violate not simply its specific instances (particular laws) but rather the

presupposition of all law, acts that infringe the demands of right in the

objective sense, as a demand for right itself—and which will precisely

this. Here we have at once the problem and the legitimacy of the judg-

ment pronounced on Eichmann. The problem is that law must judge,

even though it cannot judge here because the assumption or presup-

position of law has not been met. The legitimacy of the judgment lies

in the fact that law judges and condemns Eichmann precisely and only

because it cannot judge him —because he violates the presupposition

of law. And the result of Arendt’s juridical revision with regard to the

604 social research

proceedings in Jerusalem is that the law must and the law is entitled to

judge and condemn Eichmann precisely because and only because the

law cannot judge Eichmann—because he cannot be judged according to

the measure of law and thus not in the form of law.

but how then does the law judge here, if it is judging the lawfully unjudge-

able—if it judges and condemns the lawfully unjudgeable precisely (and

only) on account its unjudgeability? Obviously, the law does not judge in

the form of an application or interpretation of given laws. That is why

Arendt described the judgment by the Jerusalem court as “free.” This

has the negative significance that their judgment was made “without

appealing to norms and legally established criteria.” Since what is stake

here is the very presupposition of law, no particular laws can provide the

standards or criteria. In a text prompted by the controversies ignited by

Eichmann in Jerusalem, Arendt describes what is required for “free” judg-

ment that cannot proceed by applying given laws—because there are no

such laws here—as “thinking.” And she describes “thinking” as “truly

discursive, running, as it were, from place to place, from one part of the

world to another, through all kinds of conflicting views, until it finally

ascends from these particularities to some impartial generality” (Arendt

2006, 238).18 Is the “free” exercise of judgment, by which the Jerusalem

judges (and Arendt in her “revision”) condemned Eichmann to death

as an “enemy of humanity,” an exercise of such a discursive judgment,

where impartiality is attained by taking account of many or even all

possible views?

In her late Lectures on Kant’s Political Philosophy Arendt drew at-

tention to a crucial presupposition of this spontaneous and freely dis-

cursive form of judgment, which proceeds by moving between differ-

ent views and standpoints. The presupposition in question involves

an achievement of the faculty of imagination, one which is capable

of constituting the object of the act of judging through a certain self-

distantiation or disinterest on the part of the subject. As long as I am

simply “directly affected” (affiziert in the Kantian sense) by something,


I am incapable of discursively thinking judging it. A certain ability to

step back is required here, a break with direct or immediate “affection”:

The imagination, that is, the faculty which lets something

that is absent be present to me, changes the object into

something that I do not have to have directly before me,

something that I have interiorized in a certain sense.…

This is the “operation of reflection.” Only something that

touches or affects us in the form of imagining or represent-

ing [Vorstellung], indeed when we are no longer affected by

its immediate presence. . . , only something like this can be

judged as true or false, as important or irrelevant, as beauti-

ful or ugly, or as lying somewhere in between the relevant

poles. Only then can we speak of judgment and no longer of

taste, for here, although we are affected by something as we

are in the matter of taste, we have established an appropri-

ate distance by means of the imagination—that withdraw-

al, that distantiation or disinterestedness, which is required

for approval or disapproval, for estimating something in ac-

cordance with its intrinsic worth. By displacing the object

in this way we have created the conditions for impartiality”

(Arendt 1982, 66f).19

This freely discursive form of judging thus presupposes an aesthetic

accomplishment: the constitution of the object by breaking with imme-

diate “affection” through the self-distancing power of the imagination.

And this is precisely why the exercise of judgment in the case of

Eichmann cannot be free or discursive after all: Eichmann cannot be

judged discursively, and indeed perhaps not even impartially. For the

judgment and condemnation of Eichmann actually arises—as Arendt

crucially indicates in a passage already cited—“only from consider-

ation of the monstrous events” in question, from the monstrous char-

acter of his acts (which are monstrous precisely because they cannot

be distinguished from banality). But our reaction to the monstrous,

606 social research

the mode in which we experience the monstrous as monstrous, is that

of immediate “affection”: we experience the monstrous in “speechless

horror” (Arendt 2003, 55, 23). The monstrous is precisely not a possible

object of our imagination. It is what cannot be imaged or pictured,

cannot be distanced or represented as an object. And because the mon-

strous cannot be represented it cannot be judged either, whether dis-

cursively or impartially. We only judge it rightly, that is, as what it

is, namely the monstrous, when we do not judge it discursively and

thus impartially. The right judgment upon the monstrous is the non-

discursive, the committed judgment of speechless horror. Only in this

horror is the truth of the monstrous disclosed. The truth here is not

discursive, the truth—the truth that Eichmann’s acts are monstrous

and appalling—is “despotic” (Arendt 2006b, 236.)

This also means that Eichmann is not an object of our thought—

if (or insofar as) thought is the discursive movement in which we con-

template an object that is envisaged and distanced through our fac-

ulty of imagination from one perspective after another (which defines

judgment in the form of law: legal procedure is nothing but an institu-

tionalization of discursive judgment). Indeed, we judge and condemn

Eichmann precisely because we are unable to think regarding him, un-

able to unfold a discourse regarding him. Our thought here becomes a

kind of afterthought (Nachdenken), a thought after the event: a kind of

thinking which does not dissolve the speechless horror but rather pre-

supposes it; a thinking that springs from the speechless horror in the

face of Eichmann, expresses and interprets this horror, and returns to

it again and again; a thinking which in the end transforms itself back

into speechless horror.

—Translated by Nick Walker

NotEs

1. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil,

Harmondsworth: Penguin 1977, reprinted with an introduction by

Amos Elon, Harmondsworth: Penguin 2006; cited by simple page

reference in the text. German translation: Eichmann in Jerusalem. Ein


Bericht von der Banalität des Bösen, translated by Brigitte Ganzow, with

a preface by Hannah Arendt, Munich: Piper 1986; cited as G in the

text (this “preface” is a translation of the “postscript” to the original

English edition).

2. “This book, then, does not deal with the history of the greatest disaster

that ever befell the Jewish people, nor is it an account of totalitarian-

ism, or a history of the German people in the time of the Third Reich,

nor is it, finally and least of all, a theoretical treatise on the nature of

evil” (283; G: 54).

3. “[L]ast part of the controversy was devoted to a book that was never

written” (Arendt, “Personal Responsibility under Dictatorship,” in

Arendt 2003, 17; cf. Bernstein 2000).

4. As Rüdiger Bubner describes Arendt’s Vita Activa, he confesses to

“admiration for Arendt’s mastery … in embodying a particular genre

of political-philosophical literature that, in contrast to France and

the Anglo-Saxon world, is almost unknown amongst us in Germany”

(Bubner 1982, 66).

5. A charge repeated by Gary Smith in Smith (2000, 8f). Arendt herself

noted during preparation of her text that a certain “pride, even to the

point of arrogance” belongs to the practice of judgment (in a function-

ing conscience); cf. Young-Bruehl (2004, 337ff.).

6. In the omitted phrase she actually refers to “all these trials.” Arendt

is commenting on the Eichmann trial in the context of all the other

ones, which were required to pass judgment on “the new crime of

administered massacre” (292; 64).

7. This is the difference between Arendt’s position and that of Gershom

Scholem, who in his own comments on the sentence pronounced on

Eichmann claimed that “from the legal point of view nothing remains

to be said” and that all those higher questions would now have to be

addressed through a process of “soul-searching” (Scholem [1962] 2006,

860). However, the exchange of letters between Arendt and Scholem

with regard to her book (1964, 51–56) was largely concerned with the

more secondary question regarding the role of the “Jewish Councils”

(and with Arendt’s own relationship to Judaism and to Israel).

608 social research

8. “In sum, the failure of the Jerusalem court consisted in its not coming

to grips with three fundamental issues, all of which have been suffi-

ciently well known and widely discussed since the establishment of

the Nuremberg Tribunal: 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.” (272:

G 398).

9. Aeschylus, Eumenides, v. 487; Athena only reappears once the final

judgment has been pronounced.

10. Arendt has shown how difficult, indeed how nearly impossible, this

really is in her commentary on the Auschwitz trial that took place in

Frankfurt; cf. “Auschwitz on Trial” in Arendt 2003.

11. Like Dostoyevsky’s criminals, who “try out a reversal of the Decalogue,

starting with the command ‘Thou shalt kill’ and ending with the

precept ‘Thou shalt lie’” (“Some Questions of Moral Philosophy” in

Arendt 2003, 54).

12. This is the opposite of Carl Schmitt’s notion of enmity. Arendt under-

cuts the fundamental alternative that Schmitt sets up: either politi-

cal hostility between limited identities or merely (moral) hostility to

humanity. The crime against humanity is an enmity directed against

the basic and universal condition of political existence. A political

enmity directed against the universal as such: this is precisely the

category that Schmitt is unable to think or understand.

13. For Arendt this also marks the decisive difference with Bolshevism:

“If anything is characteristic about Lenin or Trotsky as the representa-

tives of the professional revolutionary, it is the naive belief that once

the social circumstances are changed through revolution, mankind

will follow automatically the few moral precepts that have been

known and repeated since the dawn of history” (“Some Questions of

Moral Philosophy” in Arendt 2003, 53).

14. In spite of its prominent role in the subsequent controversies, this

phrase occurs only once in Arendt’s book itself (250; G: 371), and then

once again in the “Postscript” (the “preface” to the German edition)

(285; G: 57).


15. “Morality collapsed into a set of norms – manners, customs, conven-

tions, to be changed at will – not with criminals, but with ordinary

people” (“Some Questions of Moral Philosophy” in Arendt 2003, 54).

What was particularly disturbing in this regard was not only that the

same collapse of morality could be seen again during the supposed

overcoming of the legacy of National Socialism in Germany after

1945—this too ensued as a mere exchange of accustomed practices

(54f.)—but that Eichmann actively assisted this collapse of normativ-

ity and attempted to justify it in terms of the Categorical Imperative

itself.

16. Immanuel Kant, Metaphysik der Sitten (Hamburg, Meiner 1966), p.

42; The Metaphysics of Morals, in Practical Philosophy (The Cambridge

Edition of the works of Immanuel Kant), translated by Mary J. Gregor,

Cambridge University Press 1996, p. 392. Cf. The Elements of Roman Law,

with a Translation of the Institutes of Justinian, London: Sweet and Maxwell

1952, Book I, Title 1: Concerning Justice and Law, 3: “The Precepts of

the law are therefore to live honestly, not to harm another, to give

every man his due.”

17. At least this is the case for the specifically modern tradition of natu-

ral law as a theory of “rights.” The importance of this tradition, in

contrast with Roman law, is that it makes no distinction between

those who are “persons” and those who are not. Cf. Hegel 1970, § 2;

1991, 27, and compare The Elements of Roman Law, Book I, Title 3: The

Law of Persons.

18. For further detail regarding the relationship and the difference

between “thinking” and “judging,” see Arendt (1971, 446) and

Bernstein (2000, 305–7).

19. For a more detailed discussion of this idea see Menke 2013a, 59ff.

REfERENcEs

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———. 2003. Responsibility and Judgment. Edited by Jerome Kohn. New York:

Schocken.

———. 2006a (1977). Eichmann in Jerusalem: A Report on the Banality of Evil.

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———. 2006b. “Truth and Politics.” In Between Past and Future. Edited by

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Baumann, Jürgen. 1963. “Gedanken zum Eichmann-Urteil.” Juristenzeitung

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Bernstein, Richard J. 2000. “Verantwortlichkeit, Urteilen und das Böse,” in

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———. 1991. Elements of the Philosophy of Right. Translated by H. B. Nisbet.

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Menke, Christoph. 2007. “The ‘Aporias of Human Rights’ and the ‘One

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———. 2013b. “Hegel’s Theory of Second Nature: The ‘Lapse’ of Spirit.”

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Scholem, Gershom. 2006 (1962). “On Sentencing Eichmann to Death.”

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