Hannah Arendt makes some insights specific to criminal justice in Eichmann in Jerusalem that I want to highlight today. As a starting point, she comments that the basic assumption of law is that we retain a shared humanity with those we judge and condemn. In some ways, her book is a close examination - and ultimately, a rejection - of this basic premise. What her coverage and analysis of the Eichmann trial suggested to me was that although there is indeed something we all share with even the lowest examples of our species, the way Eichmann allowed it to manifest places him in a very different category from everyone else.
This is a point echoed in the way she notes how most laws fail when they are applied beyond their intended scale. (For example, a community law cannot govern a state crime.) Part of the challenge here may be that on a small enough scale the truism that ‘if everyone is guilty, nobody is guilty’ works pretty well as a governing principle. You can’t pull everyone over for going over the speed limit, right? But in the case of law there are rarely provisions where the guilt of another absolves the accused. The shared humanity that Arendt cites as the law’s basic assumption is in the moment when we must make a decision that goes against the tide, not when we excuse our individual decisions by linking it to mass activity.
Intent is another aspect of the law that works in a similar way. Intent is so regularly a feature of criminal cases that many have become confused about its role in the act. In the most exaggerated cases, some feel that a crime without intent cannot be a crime. This widespread feeling is dangerous because it encourages wrongdoers to seek or create environments that obscure the criminality of an act from the perpetrator.
I wonder if Arendt thought her role covering the trial kept her from fully exploring every interesting aspect of the case. As she notes, a trial exists only to render justice yet criminal proceedings by default must throw out legally irrelevant comments that might be of political or social interest. Is it possible to find justice without these considerations? Essentially, the purpose of the trial is to determine whether the accused should be allowed to share space on the planet with everyone else, a consideration that likely limited Arendt’s ability to dig into every curiosity she had about the underlying nature of evil.
Finally, I was amused by her observation that those who opposed the death penalty in principle did not consider the Eichmann trial a very promising example for making their point. I suppose there is logic to starting closer to the margin and working your way forward. However, this does not change the fact that if you are fundamentally opposed to the death penalty, then it means you are opposed to its application in Eichmann’s case. Perhaps this group should simply echo Arendt’s note that no punishment has ever worked as deterrence for the same crime.
