Volume 1, Issue 2 - Judgment in the Shadow of the Holocaust

The debates over "universal" human rights versus alleged abuses in the name of culture and tradition are best understood as conflicts between different communities of judgment. This article attempts to respond to the pressing need for an adequate theory of the role of judgment in order to address these debates. Using Hannah Arendt's work on judgment as a starting point, the article tackles the problems and possibilities that arise out of Arendt's view that judgment relies on a "common sense" shared by members of a community of judging subjects. The author identifies some of the puzzles surrounding the concepts of "common sense," "community," and "other judging subjects," concepts not fully developed in Arendt's theory. Section I begins with a brief outline of Arendt's theory and its relation to Kant's. In Section II, the author points to some of the virtues of a community-based theory of judgment and, in Section III, to the link between the issues in international human rights and judgment as community-based. Section IV identifies a set of interlocking puzzles posed by the idea of "community-based" judgment, while Section V offers a more detailed account of the concepts of "enlarged mentality" and "common sense" that serve as the basis for exploring these puzzles. These puzzles are then worked through in Section VI, particularly, the question of how can one decide to change or oppose "common sense" when it seems to be presupposed for judgment to be possible. Finally, Section VII addresses the implications of these theoretical arguments for human rights and the insights human rights debates provide for the theory. The author shows that it is necessary to understand these debates as a concrete manifestation of the problem of judgment across communities and how this particular problem, in turn, helps to refine the issues the theory must articulate and resolve. The modern world makes huge demands on our linked capacities for autonomy and judgment; in order to bestmeet these demands, we must understand the ways in which judgment is community-based.

The author makes the claim that human rights have become an important institution of international relations, their inherent powerlessness notwithstanding. In the first step of the analysis, the author discusses the positive correlation between a nationâs socioeconomic well-being and the safe guarantee of human rights. However, the social and political disembeddedness of human rights and their universalist character actually constitute their inherent weakness, which is analyzed in the second part. In the third part, which deals with the future development of human rights, the author makes the claim that the process of globalization does not only create the functional networks of economic, political, and military power elites, but also offers hope for the emergence of a global moral community in which the idea of human rights may become an essential institutional pillar.

Sexual violence experienced by women during interstate and internal conflict has long escaped legal regulation. This article explores tile extent of that lacuna by analyzing and reflecting upon experiences of sexual violation during the Holocaust. While it is inappropriate to describe the Holocaust experience as a facet of war per se, its horrors did occur in the context of war and thus ex post facto legal accountability for the perpetration of those dreadful events fall under the legal rubric of international humanitarian law. The article explores the extent to which humanitarian law has limited definitional capacity to address the unique ways in which violence is directed towards and experienced by women. The article also demonstrates that sexual harms combine direct sexual harm to women with broader objectives of eliminating the cultural, social, and physical integrity of the community to which the women belong. The article claims that both victims and perpetrators of sexual harms understand the compounded function of sexual violence, but that international law fails to name or adequately sanction either aspect sexual harms. The article goes on to assert that in establishing dual conceptions of harm, there may be multiple bearers of rights when questions of remedy arise. Traditional notions of individualized entitlement to rights are inadequate to fully account for the communities of harm resulting from gendered violence that takes place in the context of war.

Millions of Jews who were committed to the Halacha, the Jewish code of law, were under Nazi rule and control during the Second World War. Various sources indicate that during the Holocaust, such Jews petitioned rabbis and Halacha sages with questions on halachic matters, both of a ritual nature as well as a legal nature. Due to the tremendous profusion during the Holocaust of situations in which the matter of preferring one life over another arose, one would expect to find an abundance of halachic questions dealing with subjects related to this matter. There are two main situations in which the matter of preferring one life over another emerges. The one typical case involves saving the life of a person in peril, where the central question that arises is whether there is a duty to endanger oneself in order to save the life of another, whether there is a prohibition on doing this, or whether this is permitted and, perhaps even recommended, but not a duty per se. The second typical instance is when a power-wielding entity with authority demands that someone be handed over and if this is not complied with, another person will be harmed. A great deal of comprehensive discussion was devoted to these two sitituations in the halachic sources throughout the ages, beginning from the period of the Talmud and thereafter. These matters were given particularly prominent and thorough consideration in the teachings of the halachic sages of Poland during the period in which the Jews enjoyed broad judicial and community autonomy. These sources could have served the halachic ,sages during the Holocaust, the overwhelming majority of whom were to be found in Poland and the neighboring countries in Eastern Europe. However, most surprisingly, we have almost no evidence of any real hcilachic grappling with situations of weighing one life against another during the Holocaust. The author maintains that the reason for this silence does not derive from a massive loss of testimonies during the Holocaust, but, rather stems from the fact that the Holocaust is a "black hole" in the human experience. In the face of this experience, created by the Germans, even the Halacha, which regulates totally the life of the observant Jew, stood dumbfounded, regarding it as a Singularity, in the physics sense of the term - that is to say, a situation in which defined laws and legal rules cease to exist

The Eichmann trial has been one of the most important formative events in the short history of the State of Israel. The echoes of its impact on how Israelis as individuals and as a public perceive themselves reverberate even today in the most profound and existential of ways. In the public consciousness the trial was, and still is, fundamentally identified with its prosecutor then Attorney General Gideon Hausner. However the trial was not a one-man show as the public tended to perceive it. Behind the scenes were numerous people working and preparing for the trial and influencing the prosecution's case against Eichmann: the investigators in the special police unit Bureau 06 established to conduct the investigation and prepare the criminal file; the Holocaust survivor organizations and institutions; and all echelons of the political sphere. This paper will trace some of the stages in the preparation of the prosecution of Eichmann and the people involved, as well as the matter of the scope of the bill of indictment and of the historical narrative tolls at the trial and the fact that it emerged to he one of the most important trials in the history of the twentieth century.

This article reviews professional mental health publications before and after the Eichmann trial. Psychiatrists rejected the massive denial of survivors' emotional reactions that was prevalent in Israeli society at the time. The Eichmann trial permitted the opening up of survivors' experiences in public. Legal procedure enabled the witnesses to speak about what they had hidden until then. The judge's presence gave legitimacy and power to the accusations, transforming the survivors from outlaws to partners in justice. The audience came to support this stronger survivor identity. Through a slow process, it became a valid issue for psychotherapy, allowing the weaker aspects of the survivors' personalities to be addressed. This article reviews professional mental health publications before and after the Eichmann trial. Psychiatrists rejected the massive denial of survivors' emotional reactions that was prevalent in Israeli society at the time. The Eichmann trial permitted the opening up of survivors' experiences in public. Legal procedure enabled the witnesses to speak about what they had hidden until then. The judge's presence gave legitimacy and power to the accusations, transforming the survivors from outlaws to partners in justice. The audience came to support this stronger survivor identity. Through a slow process, it became a valid issue for psychotherapy, allowing the weaker aspects of the survivors' personalities to be addressed.

This essay discusses various representations of Eichmann's mind that were fashioned on the occasion of his trial in Jerusalem in 1961. Gideon Hausner the prosecutor presented the defendant as demonic. Hannah Arendt, the German-born American Jewish philosopher portrayed him as banal or thoughtless. Limiting themselves to the issue of mens rea in their judgment, the Israeli Supreme Court justices described Eichmann's mind as controlled by criminal intent. While these views have been widely discussed in the literature, much of this essay focuses on a hitherto little noted perspective on Eichmann's mind that was formulated by the mental health experts who examined Eichmann for the prosecution. As compared to the inclusionist, confictual, and complex picture these experts presented of Eichmann's mind, Arendt's and Huusner's views appear similar in their reductionism, rather than diametrically opposed, while the approach of the Supreme Court justices to Eichmann's mind can be regarded as restrictive. Methodological problems involved in all these different perspectives are discussed, and it is argued that even though the psychological outlook declares itself to be non-judgmental, it does, in fact, entail a dimension of moral judgment. Finally, Eichmann 's recently declassified memoirs are adduced and interpreted as lending some support to the psychological, inclusionist perspective on Eichmann's mind.

This paper explores the Eichmann trial in its dimension as a living, powerful event, whose impact is defined and measured by the fact that it is "not the same for all." I examine this legal event from two perspectives: Hannah Arendt's and my own. I pledge my reading against Arendt's, in espousing the State's vision of the trial, but in interpreting the legal meaning of this vision us one that exceeds its own deliberateness and distinct from the State's ideology. I use Nietzsche's terms to contrast "critical history" with "monumental history." Whereas the official State vision of the trial is, I propose, precisely one of "monumental history, " Arendt's vision offers a substitutive "critical (legal) history." I analyze, one against the other, what I call the monumental legal vision of the Eichmann trial and the critical vision (or the critical version of events) offered by Arendt. Exploring thus the monumental versus the critical as two opposed but non-exclusive and, in fact, profoundly complementary perspectives, I examine, side by side, the Eichmann trials' monumental focus on the victims and Arendt's critical objections to this focus: her objections, I show, are based in a jurisprudential conservatism coexisting with a historiographical radicalism. The Eichmann trial, in my view, is on the contrary and diametrically, historiographically conservative, but jurisprudentially revolutionary. I argue that Arendt failed to see the way in which the trial in effect did not simply repeat the victim's story, but historically created it for the first time. I submit, in other words, that the Eichmann trial legally created a radically original and new event: not a rehearsal of a given story, but a groundbreaking narrative event that is itself historically and legally unprecedented. Examining the trial's transformation of victims into prosecution witnesses, I analyze the victim-oriented focus of the trial as s legal process of translation of private traumas into public ones and as a public scene of the recovery of language and legal subjecthood by victims who were formerly defined by the oppressor's language and who were, therefore, not just injured, but essentially robbed of a language in which to articulate their injury and name their victimization. I argue that the Eichmann trial expanded the space available for moral deliberation in creating a new legal language: the trial was the victim's trial only insofar as it was now the victims who, against all odds, were precisely (through the trial) writing their own history. To enable such a writing, the Eichmann trial had to enact not simply memory, but memory as change. It had to dramatize upon its legal stage before the audience nothing less than a conceptual revolution in the victim. And this, in fact, is what the trial did This historically unprecedented revolution in the victim that was operated in and by the Eichmann trial is, I suggest, the trial's major contribution not only to Jews, but to history, to law, to culture - to humanity at large. I further argue that as a singular legal event, the Eichmann trial calls for a rethinking - and sets in motion a transvaluation - of the structures and the values of conventional criminal law. I submit that the quintessence of the Eichmann trial is the acquisition of semantic authority by victims. It was the newly acquired semantic and historical authority of this revolutionary story that, for the first time, created what we know today as the Holocaust: a theme of international discussion and world conversation designating the experience of the victims and referring to the crime against the Jewish people independently from the political and military story of the Second World War.

This essay examines the Kastner trial and the Eichmann trial as constitutive moments in the development of Israeli collective identity. This aspect of the trials is explored by comparing the intervention of two intellectuals, Nathan Alterman and Hannah Arendt, in the two trials respectively. Both social critics challenged the terms of the collective identity that was reinforced by the trials. During the Kastner trial, the Israeli poet Alterman set out to challenge the "two paths" conception of heroism and cowardice that shaped the court's - and society's - understanding of the Holocaust. The first part of the essay examines Alterman's critical intervention and the public controversy that followed in its wake. In the second part, I examine Arendt's criticism of the Eichmann trial as an attempt to construct Israeli collective identity around opposition to the demonic Nazi In this context, I discuss the famous controversy between Arendt and Gershom Scholem over the terms of her criticism. The two episodes come together in the third part of the essay, where I discuss the surprising continuities and affinities between the controversies. The two controversies offer a fascinating tale about the role of the law in the construction of collective identities and the role of the social critic in the development of a liberal society.