Hannah Arendt’s Judgement of Bureaucracy
Hannah Arendt’s Judgement
THE HOLOCAUST POSED a difficult dilemma for the law: how to judge bureaucratically organised crimes. In her postscript to Eichmann in Jerusalem,1 Hannah Arendt argued that the problem stemmed from the attempt to apply a legal system and juridical concepts that were not meant to deal with ‘the facts of administrative massacres organized by state apparatus’. Later, in her critique of the Frankfurt-Auschwitz trial, she pointed to the absurdity created when a trial addressing the symbol of evil in the twentieth century—the death machine of Auschwitz—ends up dealing with individual infringements of the law by sadistic perpetrators. While Arendt was quick to identify the disjunction between the idiom of law and the facts of bureaucratic crimes, she continued to insist on the need to establish individual criminal responsibility.
Law’s continued encounter with State-organised crimes since the end of the Second World War has brought about radical legal transformations. New crimes were developed, such as crimes against humanity and genocide, the temporal and spatial boundaries of jurisdiction were redefined, and the focus of adjudication has shifted from the defendant to the victim. These changes have matured into a new corpus of international criminal law amounting to a ‘jurisprudence of atrocity’.2
Notwithstanding these transformations in the form and content of the law, the demand to establish individual liability according to the dictates of traditional criminal law has not been abandoned, and in some aspects has strengthened since the Nuremberg trials. This continuity is perplexing, as it was often this very focus on individual guilt that was shown to undermine law’s attempt to make bureaucratic organisations accountable.
Contrary to Arendt, I suggest that it is not the law as such, but rather the dominance of criminal law that has obstructed the law from addressing the involvement of bureaucracy (both State and private) in the Holocaust. Arendt’s argument that criminal law cannot retain its basic moral integrity if it abandons the requirement of individual guilt is persuasive, but it is not true of all areas of law. I conclude by identifying a shift away from the limitations of criminal law in the wave of Holocaust restitution lawsuits filed against German and European companies in American courts during the 1990s. I suggest that this litigation may offer a solution to a problem that has haunted Holocaust jurisprudence for more than six decades. Most importantly, the class-action suit dispenses with the need to establish the liability of individual perpetrators within private bureaucratic organisations, and in this way allows the courts to confront bureaucracy on its own terms. Thus, while Arendt was right to point out the need to develop new legal tools to adjudicate the involvement of bureaucratic organisation in the Holocaust, she wrongly assumed that the only legal road open to handle the problem is through criminal law.
I. FIRST ENCOUNTER: ARENDT AND THE EICHMANN TRIAL
The phrase ‘the banality of evil’ was coined by Hannah Arendt in relation to the defendant Adolf Eichmann, in the subtitle to her book Eichmann in Jerusalem. With this term Arendt points to a new kind of evil appearing under the Nazi regime. Using the term ‘banal’ to describe Eichmann’s acts caused immediate controversy in Israel and in the international community.3 Many saw this as an unfortunate term, a provocative and misleading description that trivialises the Holocaust and undermines Eichmann’s culpability.4 Furthermore, the choice of the term ‘banal’ to depict Nazi evil-doing surprised those familiar with Arendt’s previous book, The Origins of Totalitarianism,5 where she used the term ‘radical evil’ to describe the crimes of the Nazi regime. Richard Bernstein, one of the most sophisticated readers of Arendt’s work, argues that in fact there is no contradiction. We should understand the two terms as relating to different aspects of the same phenomenon. Radical evil refers to the socio-structural dimensions of the Holocaust, while banal evil refers to the psychological-ethical constitution of the perpetrators.6 In other words, with the provocative term ‘banal’, Arendt exposes the new mindset of the functionary that makes him the ideal actor in a bureaucratic organisation of mass murder and extermination. However, this explanation does not help us understand whether the law has the capacity to bridge the rift that opens between the enormity of the crimes and the banality of the motives.
In this essay I do not intend to engage the problem of evil as a philosophical question that the banality of evil invokes.7 The question that interests me here is more specific to the law and points, I believe, to a crisis of judgement that the law has been facing in its various attempts to judge the crimes of the Nazi regime. Specifically, I ask how and in what way bureaucratically organised slave-work and mass-murder challenge the foundations of criminal responsibility. I argue that Arendt accurately identified the dilemma created for the law by the new type of murderer who sends millions to their death while understanding his own role in bureaucratic terms, as a ‘specialist’ in immigration and an ‘expert’ on the Jewish problem. The challenge that this new type of perpetrator created for traditional conception of mens rea was connected to the bureaucratic setting of the crime. However, most of the scholarly attempts to address the problem have focused on the mens rea requirement and ignored, for the most part, the need to develop tools to judge the bureaucratic organisation as such.
In identifying the novelty of the crimes, Arendt points time and again to the bureaucratic setting in which they are carried out. In the epilogue to Eichmann in Jerusalem Arendt writes: ‘The fundamental problems posed by crimes of this kind … [is] that they were, and could only be, committed under a criminal law and by a criminal state.’8 Furthermore, Arendt underscores the fundamental implications of this shift: the State that is ordinarily taken to be the source of legality under positive criminal law is transformed under the Nazi regime into the source of organised crime. Indeed, this is one of the unique aspects of Nazi crimes: their systematic and organised nature due to the fact that a State bureaucracy stands behind them. Arendt is well aware that bureaucracy can help render individual motivation irrelevant to institutional outcomes, and that this carries important implications for our understanding of the mens rea requirement of criminal law. And yet, this recognition does not lead Arendt to question the very attempt to use criminal law, and in particular to establish the individual culpability of the Nazi perpetrators. There is an unexplained gap in Arendt’s argument, a leap between the descriptive (a social-science understanding of bureaucratic action) and the normative (a demand to establish individual guilt according to the strictures of criminal law).9
Arendt, who was not a jurist, objected to the legalistic way of thinking, to the precedent-orientated reasoning that attempts to fit the new into pre-existing legal categories. As a critical thinker she undertook to expose the unprecedented nature of the new crime. In her book the The Origins of Totalitarianism, she investigated the different ways in which the totalitarian State works to destroy the spaces of civic and political action. She was among the first to identify the ways in which this regime undermines freedom of action and even the conscience of the individual. Furthermore, she writes that totalitarian governments operated
according to a system of values so radically different from all others, that none of our traditional legal, moral, or common sense utilitarian categories could any longer help us to come to terms with, or judge, or predict their course of action.10
However, in a letter to Karl Jaspers, from December 1960, shortly before she went to Jerusalem to report on the Eichmann trial, she writes that
We have no tools to hand except legal ones with which to judge and pass sentence on something that cannot even be adequately represented either in legal terms or in political terms.11
Arendt admits that her change of mind can be attributed to an American influence of relying on juridical thinking to solve political problems. Indeed, American jurists insisted on conducting the Nuremberg trials against the oppositions of their allies.12 Given Arendt’s sophisticated understanding of the administration of the Holocaust, can the law fulfil her expectations?
Arendt was among the first to point to the limits of criminal law in relation to the new crimes. Yet, unlike later critics who questioned the very turn to the law as the dominant way to deal with the Holocaust,13 Arendt affirms the recourse to the law, and upholds its demand to establish individual culpability. One explanation is her attempt to wear simultaneously the hats of both the spectator and the actor. As a historian, a social scientist and a philosopher, she undertook to identify the novelty of the crimes (of genocide and crimes against humanity) committed by the administration of a criminal State, and made possible by a network of public and private bureaucratic organisations. Yet putting herself in the place of an actor in the legal drama, that is, wearing the juridical hat, Arendt upholds the normative and moral commitments of criminal law that require proof of individual guilt. Arendt is well aware of the difference between these two points of view, writing:
Of course it is important to the political and social sciences that the essence of totalitarian government, and perhaps the nature of every bureaucracy, is to make functionaries and mere cogs in the administrative machinery out of men, and thus to dehumanize them … [Yet] one must realize clearly that the administration of justice can consider these factors only to the extent that they are circumstances of the crime.14
Such a stance, of deliberate legal blindness to social circumstances, is a well-known technique of legal reasoning, generally known as legal formalism. What is surprising here is that this position is upheld by one of the strongest critiques of legalism.15 Indeed, aware of the limits of old precedents, Arendt calls to construct new crimes that can respond to the novel social and political conditions of the totalitarian State. Moreover, she does not limit their application to future cases notwithstanding their apparent retroactivity, but rather articulates interpretations that can allow the judges to apply the new crimes to Eichmann’s actions. Indeed, Arendt chooses to end her book with a warning about the danger of not developing new legal tools that respond to the unprecedented nature of these crimes.16 Arendt is willing to go a long way in changing the requirements of criminal law, including a move from subjective to objective standard liability.17 And yet she is not willing to abandon the principle of individual responsibility. This seeming contradiction leads one commentator to argue that Arendt is trying to reconcile the two points of view: ‘Part of what Arendt tries to do in Eichmann in Jerusalem is to find a way to resolve this paradox by encompassing banal evil and individual criminal guilt within the same conceptual apparatus.’18
The difficulty in reconciling the two points of view of the historian and the judge is evident in the epilogue to Eichmann in Jerusalem, where Arendt tries both to point out the dilemma that judging the crimes of the Holocaust poses to the law and offer her solution. She writes:
Foremost among the larger issues at stake in the Eichmann trial was the assumption current in all modern legal systems that intent to do wrong is necessary for the commission of a crime. On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent, where, for whatever reasons … the ability to distinguish between right and wrong is impaired, we feel no crime has been committed.19
But immediately after she points out the fundamental premise of modern criminal law that seems to be undermined by the bureaucratic organisation of the crime, and right before she provides her own solution to this problem, a strange thing occurs. Arendt abandons the point of view of the ‘spectator’ that she occupies throughout her book and takes on the insider’s position to address the defendant as the judge:
You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it. But you said you had never acted from base motives, that you had never had any inclination to kill anybody … What you meant to say was that where all, or almost all, are guilty, nobody is.20
Arendt is quick to dismiss these claims:
Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same.21
With this answer we witness Arendt’s vacillation between the objective standard (obedience to orders) and the subjective standard (inferring ‘support’ or subjective intention from objective facts). However, this brief answer does not deal with the considerable difficulties of judging actors in a bureaucratic organisation, let alone a criminal State. Specifically, it does not address the systematic undermining of cognitive and moral capacities of individuals acting under such conditions. Indeed, in her later essay, On Violence, Arendt describes the bureaucratic phenomenon as a novel form of governance of ‘rule by Nobody’.22 It might be that Arendt can dismiss the strength of such arguments in relation to Eichmann due to the unique position that he held in the Nazi bureaucracy, a position that allowed him considerable control and knowledge in relation to the fate of the Jews that he persecuted. Still, one can raise doubts as to how satisfying are the answers that Arendt formulates as a judge, to the questions she has raised as a historian.23 It is not reconciliation that we witness in the epilogue to Eichmann in Jerusalem, but rather an unexplained shift of perspectives from spectator to judge that covers an unresolved tension.
What can explain this shift from the detached historian to the involved judge? Would the answer to the dilemma that Arendt formulated as a historian be any different from the one she articulated under her assumed position as judge? Instead of trying to solve these questions, I suggest that this abrupt shift points to something fundamental about the act of legal judgment. The act of judging the perpetrator seems to undermine the understanding of the historian about the power of the bureaucratic organisation over the individual will.24 Is it possible that the very leap to the position of judge necessarily results in a certain blindness to the historical facts? Does this leap in Arendt’s writing represent a deeper antinomy between legal judgment and historical understanding of the Holocaust, one that cannot be reconciled simply by defining new crimes? I would like to argue that Arendt’s unexplained shift from historian to judge, at the very critical moment in which she recognises the abyss of judgment, is meaningful. It seems to hide, not just from her readers, but also from herself, the crisis of judgment faced by liberal criminal law. The leap from historian to judge helps cover the fundamental way in which bureaucracy undermines the liberal foundations of criminal law. I argue that facing this crisis demands nothing less than a shift in our conception of legal judgment. In other words, the encounter of law with bureaucratically organised crime might demand the abandonment of a conception of justice based on individual guilt.
II. SECOND ENCOUNTER—ARENDT AND THE AUSCHWITZ-FRANKFURT TRIAL
Arendt had another opportunity to clarify the relation between individual liability and the organised nature of Nazi crimes in her review of the Frankfurt-Auschwitz trial (1963–65), in which 22 defendants were charged under German criminal law for their roles as mid- and lower-level officials in the Auschwitz-Birkenau concentration camp.25 Whereas Eichmann’s trial dealt with the ‘desk-murderer’ who planned the extermination, here the law turned its attention to the direct perpetrators of ‘administrative-massacre’ who operated the Auschwitz concentration camp, those who implemented the Nazi genocide, those who actually shot, gassed or tortured their victims to death.26
In her critique of the Frankfurt trial, Arendt is quick to point to the immense gap between the old categories of the German criminal code and the new crimes committed by the Nazi regime. She writes that ‘what the old penal code had utterly failed to take into account was nothing less than the everyday reality of Nazi Germany in general and of Auschwitz in particular’.27 As a result of this,
a man who had caused the death of thousands because he was one of the few whose job it was to throw the gas pellets into the chambers could be criminally less guilty than another man who had killed ‘only’ hundreds, but upon his own initiative according to his perverted fantasies.28
Here again, Arendt points to the gap between subjective intentions and objective results. While criminal law creates grades of liability that increase according to the subjective intention of the actor, it fails to account for the way in which the organisation of mass-murder in the concentration camp was dependent upon the subordination of individual will to the needs of the organisation. Arendt explains that ignoring this background, ignoring Auschwitz as an institution, resulted in a failure of understanding, a blurring of the distinction between murder and mass-murder.29 The tension between individual liability and the bureaucratic organisation of the crime increased in the Frankfurt trial as a result of the application of the nineteenth-century German criminal code with its subjectivist emphasis. Missing were the categories of ‘crimes against humanity’ and ‘genocide’ that were created after the Holocaust and which were meant to address mass-murder. Moreover, in 1965 all crimes but murder were barred under a statute of limitation, and murder, according to the German code, required a special subjective motive.30 A third obstacle stemmed from the distinction that the German code makes between perpetrator and accomplice.31 These legal obstacles led the Frankfurt court to focus, as Arendt points out, on the ‘extraordinary’ sadistic perpetrators, failing to come to terms with ‘ordinary’ perpetrators of Auschwitz. In other words, the structure of German penal law prevented it from judging the ordinary perpetrators of the ‘mass production of murder’. This frustration with the law leads Arendt to observe the limits of criminal law when dealing with the organisation of mass murder:
The background here was administrative massacres on a gigantic scale committed with the means of mass production—the mass production of corpses. Mass murder and complicity in mass murder was a charge that could and should be leveled against every single SS man who had ever done duty in any of the extermination camps and against many who had never set foot into one.32
This insight, however, was not applied during the Frankfurt-Auschwitz trial. Indeed, not until 2010, when German prosecutors indicted John Demjanjuk for mass murder for allegedly serving as a guard in an extermination camp, did the law try to make good on this observation.33
In 1965, when Arendt wrote her review of the Frankfurt trial, and out of frustration with the criminal law, she entertained the idea that the foundation of individual liability, the assumption of innocence, should be reversed in this trial. She writes:
Within the setting of Auschwitz, there was indeed ‘no one who was not guilty,’ as the witness said, which for the purposes of the trial clearly meant that ‘intolerable’ guilt was to be measured by rather unusual yardsticks not to be found in any penal code.34
In trying to explain the unique nature of the mass-murder at Auschwitz, Arendt emphasises its bureaucratic structure that stands in tension with the individualist orientation of criminal law, and in particular the legal definition of ‘murder’ in the 1897 German penal code.35 Again, Arendt’s insights about the limitations of criminal law to deal with administrative massacre do not lead her to rethink the reliance on criminal law. She limits her criticism to the German criminal code. At most, she is willing to entertain the possibility of changing the legal presumption of innocence. But she is not seriously considering a change of direction for the law.
From the perspective of the law’s capacity to cope with the bureaucratic aspects of the Holocaust, the Frankfurt-Auschwitz trial was clearly a regression from the advances made in the Nuremberg trials, where a systematic attempt was made to handle the organised nature of the crime. First, with respect to piercing the shield of State sovereignty, the Nuremberg charter abolished the defences of ‘act of State’ immunity and superior orders, thus allowing judgment of those who kill upon orders.36 Secondly, in relation to the collective aspects of the crime, the charter created the new crime of participation in a criminal organisation.37 Lastly, and most importantly, the American prosecution relied on the doctrine of ‘conspiracy’ taken from American anti-trust litigation in order to overcome the immense gap between the planners and the actual perpetrators.38 The Frankfurt-Auschwitz trial retreated from the understanding that there is a need for a profound reform of criminal law in order to handle Nazi crimes. However, these difficulties were not unique to German law; rather, they stemmed from traditional conceptions of criminal law about individual liability.39 The most important innovation of the Nuremberg trials was the notion that international law cannot remain focused on the behaviour of States but should pierce the veil of sovereignty to reach the individual perpetrator of the crimes.40