Abstract
In Eichmann in Jerusalem, Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the question of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity.
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Notes
It is often assumed that Adorno had no interest in legal issues, yet he goes so far as to claim that ‘the theory of the criminal law provides us with something of a key to all serious thinking about freedom,’ (Adorno 2006a (HF), p. 197); notable exceptions include Bowring (2002), Norrie (2005, pp. 157–178) and Thornhill (2004).
Arendt and Adorno never wrote about each other, and only mention each other in letters, where there is great animosity from Arendt’s side, and indifference from Adorno’s. Among her speculative theories, Arendt suspects: that Adorno had tried to join the Nazi’s, based on a positive review he published in the early 1930’s of a set of songs, some of which had lyrics by a poet who was also a Fascist sympathiser; that he had been involved in a secret conspiracy to torment her mentor and former Nazi Party member, Martin Heidegger; and, what hurt Adorno most, Arendt publicly claimed that he had intentionally prevented his friend (and hers) Walter Benjamin from leaving Europe to California, leading to his suicide. There is little to support these speculations. The first fits with her general tendency to see communists as complicit with Fascism (cf. Benhabib 2003, pp. 177–178), and the latter one relating to Benjamin was publicly rebutted by Frederich Pollock, (Adorno and Benjamin 1999, 02/08/1940; Cf. Arendt and Jaspers 1992, pp. 592–593, 628–629, 635–639, 644). One possible but strange explanation is suggested by Carol Brightman: ‘Arendt’s distaste for Marxist sociologist Theodor Adorno began in Frankfurt in the early 1930’s, when Adorno blocked her first husband Gunther Stern’s dissertation proposal,’ Arendt and McCarthy (1995, p. 206n).
The subtitle of the book is ‘A Report on the Banality of Evil’, and apart from this Arendt uses the term only in the last sentence of the book. There is a vast literature on the empirical question of whether Arendt’s evaluation of Eichmann as banal was correct, much of which rejects her claim on the basis of new evidence and factual mistakes in her account (Cesarani 2004; Wolin 2001, pp. 52–62). I leave this empirical question aside, assuming that whether or not Arendt’s assessment of Eichmann himself is accurate, the issues raised by her analysis are nevertheless real.
I largely follow Norrie’s analysis for the first section of this paper. He also situates the problems of judgment in Eichmann interestingly in the context of the philosophical tradition of German idealism in a way which elucidates these two dimensions.
Though unlike Arendt, Heidegger’s primary target here is language, and again unlike her, Heidegger sees this alienation as internal to the structure of sociality construed as an ahistorical existentiale.
Cf. Arendt’s discussion of Nuremburg and the ‘crime against humanity’ (EJ, pp. 256–257). Norrie puts it: ‘on the one side, Arendt displays a real support for an international penal justice system, while on the other, she pulls the rug from under it,’ (2008, p. 209).
In this sentence I deploy the terminology of ‘subjective’ and ‘objective’ in a strictly different sense from the way in which that distinction is used throughout the rest of this article. Here it evokes simply the legal distinction between an assessment based purely on the ‘objective’ state of affairs—what the defendant actually did—and an assessment which takes into account the ‘subjective’ situation—what the defendant’s state of mind was at the time. This should not be confused with the sense in which I use the subjective/objective distinction in the rest of the discussion.
It is important to note the ambiguous relation between judging and thinking in Arendt’s thought. She sometimes suggests that judging relies on thinking, but more often leans toward seeing judging, as associated with action and so natality and freedom, as independent and sui generis. She talks of both thinking and judging in Eichmann, though it is judging that emerges as the crucial category. I touch on these issues later in the paper.
Arendt does show a critical understanding of this issue elsewhere, arguing the problem of freedom has been inappropriately transposed from the political to the individual realm (Arendt 1978c, p. 145), but this is not enough to spirit away the problems posed by the Eichmann case, and posed by a host of moral issues more generally.
As Freyenhagen points out, Adorno intentionally plays on the ambiguous double meanings in German which elide between good/right/true and bad/wrong/false (Cf. Freyenhagen 2008, p. 101).
In Kant’s idea of ‘unsociable sociability’ this conflict of individual and society already appears as problematic, Kant (2006a, 8:20–28:22). Although Adorno focuses on freedom, the doctrine of the postulates of practical reason itself gives expression to the tension—irresolvable within an idealist framework—between individual and history (cf. Kant 1993).
The thought is that modernity provides an inadequate ethical context to ground its moral categories. In the Hegelian story it is the Roman and Greek worlds, respectively, that provide historical examples of one-sided achievements of those spheres, but Adorno thinks that ethical life is absent or distorted in modernity and moral categories are left free-floating without any contextual anchorage. In some sense, then, modernity is worse than these one-sided examples, not least because they made no claim to reconciliation in the way that idealism does of modernity (cf. HF, pp. 90–98, and passim).
On the one hand the predominance in history of the universal (social.historical totality) over the individual subjects, which confronts the subject as the domination of fate over freedom (the ‘spell’), reveals a truth-moment in Hegel’s story: ‘the supremacy of the universal[…] is the way the world is’ (HF, p. 43). Hegel’s mistake is to ontologise this state of affairs as if it was necessary and just. On the other hand, the insight that freedom is a ‘category of the social’ is itself critical insofar as this oughtn’t be the case, and doesn’t justify itself. To pretend that the universal (totality) has not come to dominate the particular (individuals) would be to posit a false reconciliation where none existed, but to assert the universality of the domination of universal over particular would no less cooperate with that domination (cf. HF, p. 93).
Nourse indicates the need to judge the individual’s relations with others but does not get beyond thinking in terms of individuals and their immediate relations to other individuals and to the state, which is where Adorno’s focus on the historical dimension takes the inquiry further. Later in this paper the dimension of nature becomes central to this approach. Other recent ‘relationality’ scholarship which has emphasised the need to see subjectivity as contextualised in community includes Kutz (2000, Ch. 1–2), and Norrie (2000, Ch. 9).
Thinking is identified with morality in The Life of the Mind, and in places elsewhere. I am indebted to an anonymous reviewer for pointing out the need for clarification here.
The political category of action is expounded in Arendt’s The Human Condition (1974).
Arendt continues to equivocate between thinking and judging, sometimes intimating that thinking is more basic and that judging is merely a ‘by-product of the liberating effect of thinking’ (Arendt 2003, p. 189), but as I suggest, ultimately she sees judging with its emphasis on plurality and natality, as the ability which most clearly grounds moral reflection in the broad sense.
Who would want to live with a murderer? As Mary McCarthy put it, ‘the modern person I posit would say to Socrates, with a shrug, ‘Why not? What’s wrong with a murderer? And Socrates would be back where he started’ (Arendt and McCarthy 1995, p. 22). The problem is you already need an evaluative attitude to murdering before the thinking model will help, so it does no normative work. Without an already-existing ethical context from which to draw one’s evaluative stances, there is no way for thinking to prefer one thing or another, except fiat.
Because this would undermine the freedom or natality proper to action.
It is perhaps a problematic topology of practice that obscures this, for example in The Human Condition, where Arendt separates political action from various other types of activity, which get cut off in the categories of labour and work (Arendt 1974, passim).
Another way of putting this is that Arendt portrays the relationship between the rational form of the moral law and its normative content as in principle distinct. For example, in the claim that Eichmann followed the command to ‘identify his own will with the principle behind the law—the source from which the law sprang. In Kant’s philosophy, that source was practical reason; in Eichmann’s household use of him, it was the will of the Fuhrer’ (EJ, p. 137).
Rather than the other way round as Arendt seems to suggest. To drive this point home, it makes no sense to attribute any normative force to the law except insofar as it is self-legislated. This is the oddness in Eichmann claiming to be following Kant in making the positive law his moral imperative. Indeed Arendt’s charge of formalism applies more to her own theory of moral conscience than to Kant’s.
This phenomenological strategy is also evident in some of Adorno’s arguments, but given Arendt’s philosophical background it is especially unsurprising to find her deploying similar lines of thought. Since Kant’s position relies partially on phenomenological claims, for example in the ‘experimenta crucis’, this seems a wholly legitimate strategy.
Since in the Critique of Judgment, ‘the word truth does not occur’ (LKPP, p. 13).
Kant’s conflicted sentiments toward the French Revolution—he both supported it as a spectator, and condemned those who took part from the moral point of view—might be understood as exemplifying the distance, and thus impotence, of his conception of moral subjectivity vis a vis the plural world of real history (Kant 2006b, ss. 6:321–6:323).
Arendt’s talks of the historical and philosophical judge as the contemplative judge of things; the position of the legal judge, which is my concern here, occupies a space in part analogous to them.
See Beiner’s note at p. 163 on the issue of translation here: he points out that Allgemein is typically translated as ‘universal’, whereas Arendt specifically renders it as ‘general’. Insofar as this is an interpretation of Kant, and she does intimate that it should be so understood, then it seems wrong. Yet, and this goes for the whole of my discussion of her theory of judgment, the accuracy of her interpretation of Kant is of less consequence than the power of her own theoretical approach, which is my focus here (cf. Disch 1994, pp. 151–152).
To place normativity in the context of ‘men in the plural, as they really are and live in societies,’ (LKPP, p. 13).
There is hardly space to discuss this point fully; what I have in mind here though is the thought, expressed in quarters as diverse as those of Emmanual Levinas (1969) and Raimond Gaita (2004, Ch. 15–17) that theoretical knowledge cannot be expected to trump moral or ethical understanding. This view does not entail that moral considerations have nothing to do with rational deliberation (although perhaps more so in the case of Levinas than of Gaita), but rather invites us to consider the complexities and reciprocities of that relationship. This is, I believe, part of the difficulty that Adorno is engaging with.
Thanks to an anonymous reviewer for pushing me to explore these issues in detail.
Compare Ferrara (2008) for an alternative account of the sensus communis that attempts to rescue it from the twin troubles of relativism and abstraction.
‘By producing one species with the faculty [of reason], nature has produced its own master.’ (LKPP, p. 59).
For the classical statement of the distinction cf. Dilthey (1976). History thus appears as a merely interpretive idea of ‘progress without end[…] without which the mere story of history would not make sense’ (LKPP, p. 59).
Disch also notes that Paul Guyer acknowledges that ‘Kant uses crystallization to argue that the ‘mechanical processes of nature’ are sufficient to account for the existence of natural forms’, reinforcing my point that Arendt’s assumption that the concept distances her from causal explanation is misplaced (Disch 1994, p. 148n). Disch remains herself as confused as Arendt, however, when she suggests that ‘crystallisation’ and ‘amalgamation’ occupy a place of ambiguity between ‘contingency and causality’. This is both because ‘crystallisation’ and ‘amalgamation’ are both unequivocally no-strings-attached causal notions, and because ‘contingency’ and ‘causality’ do not conceptually oppose each other whatsoever: causal processes are natural necessities, but these are contingent rather than logical necessities. These necessities do not link events but underlie and explain processes, and so should be understood tendentially (cf. Bhaskar 1978).
Here Adorno is referring to the ‘intelligible character’ and the problem that in order to enable the will to impact on action, Kant is forced to attribute causal power to the intelligible character which is supposed to be noumenal.
Adorno quotes Marx: ‘I comprehend the development of society’s economic formation as a process of natural history.’ But there is a tension here too, since the quote continues by raising the very problem at stake in this paper, the place of individual responsibility given that history is a process of natural history: ‘less than any other does my standpoint permit holding the individual responsible for conditions whose social creature he remains[…]’ (Marx 1954, p. 7n; cf. ND, p. 354, emphasis added).
Adorno deploys his reconstruction of natural history in a number of contexts: as a critique of Hegel’s concept of Spirit; a critique of ‘dialectical materialist’ perversions of Marx; against Heidegger’s notion of historicity. It is also pertinent to note that the underlying theme makes sense as both a reading of Marx’s critique of capitalism (Buck-Morss 1978, p. 62) and of Freud’s theory of the unconscious, to both of which Adorno makes explicit references in this connexion.
It is in this sense that Adorno’s response to the dilemma of compatibilism and incompatibilism is to reject the choice as a false one. Incompatibilism happens to be true, but that is because we have historically made it so. The modern world is incompatible with our freedom; the opposition is historical not natural.
‘Philosophy, which once seemed obsolete, lives on because the moment to realise it was missed’ (ND, p. 3).
This egalitarian idea is the ‘utopian’ aspect of the concept of freedom. As Gillian Rose explains, ‘utopia is another way of naming the thesis that non-dialectical thought is closed thought, because it implies that the object is already captured [by the concept]. To see that the object is not captured is to see utopia’ (Rose 1978, p. 48).
An anonymous reader has questioned how Adorno can side-step this issue. His argument is that nature is not in conflict with freedom, although second nature—the structure of the modern social world, is. The Kantian assumption that nature blocks freedom is the result of a misattribution of social oppression to natural laws. All of this rests on the false assumption that the nature-reason separation is itself natural rather than historical. For a detailed discussion see Freyenhagen (2003, Ch. 2); I explore the issue in my article ‘Causality and Critical Theory’ (forthcoming).
Given these considerations, it seems to me that precisely the same problem occurs in thinking as in judging, that of a lack of just the sort of liberating normative standpoint that might allow one to combat the coercive pressures of oppressive social contexts and normative backgrounds. On this, I am in agreement with Benhabib (2003, pp. 193–194).
Whether Adorno thinks that moral reflection, or just practically acting on that reflection, is blocked in modernity, is questionable. It seems to me though that since he sees theoretical reflection as a kind of practice, he would be unlikely to rest on this distinction comfortably. In brief, I read Adorno to be claiming that, although it has been philosophically misconstrued to concern ahistorical features of an abstracted subject by the idealist tradition, the question of moral freedom is in fact one about the structure of the social totality.
Arendt fails to penetrate this issue, and her attempt to import Socratic moral reflection into the modern context is a testimony to this, while her ongoing equivocations are equally a testimony to her awareness of the problems.
In the way that Eichmann’s ‘cog in the machine’ defence attempted to do (HF, p. 203).
There is no room to develop this point, but what I have in mind is the positivist orthodoxy, bequeathed by Hume, that causal processes are reducible to constant conjunctions of perceived events, excluding the ‘constitutive’ element from the discussion; cf. Psillos (2002, pp. 19–136); Buchdahl (1988). Against this view, I am pursuing a line of thought from realist philosophy, that causal laws describe processes which are usually active in open and complex systems, and so rarely produce empirical constant conjunctions. This is not a very strange idea; no-one thinks that the occasional chain-smoking centenarian casts any doubt on the carcinogenic effects of tobacco; cf. Bhaskar (1978, pp. 63–142).
Fabian von Schlabrendorff was a judge involved in the July 20th Conspiracy. Adorno refers to him on a number of occasions to express the ‘irrational’ element in moral experience that cannot be reduced to law. ‘Irrational’ is in scare quotes here to underscore the point that we are trapped in the very distinction which Adorno says is unsustainable—between the rational and natural aspects of subjectivity—by the terminology bequeathed by the tradition. Since without this irrational element, the rational aspect would itself become irrational, the distinction really makes no sense except in the transitionary tone that I employ it here (cf. HF, p. 326n).
Particularly its mediation through social institutions and practices organised around the exchange principle.
Adorno continues with a passionate tone, ‘the German critics who found Kantian formalism too rationalistic have shown their bloody colours in the fascist practice of making blind phenomena the criteria of who was to be killed.’ Such passages should be borne in mind by those who see Adorno, and they are many, as a one-sidedly pessimistic or irrationalist enemy of modernity.
Fredric Jameson, for example, argues Adorno’s is a ‘postmodern Marxism’, underemphasizing Adorno’s awareness of the progressive aspects of modernity, whilst Robert Pippin has suggested that Adorno’s naturalism demands a reversion to a pre-modern ‘re-enchantment project that is hopeless,’ recalling the ‘teleological, scholastic view of nature,’ which seems to completely ignore Adorno’s appreciation of the progressive aspects of modernity. Cf. Jameson (1990); Pippin (2005, p. 119); also cf. Hohendahl (1995, Ch. 1).
For Wellmer and Habermas, cognition in its moral forms is mediated by subjectivising and instrumentalising pressures which do not show that rationality is normatively sterile, but rather that it is fragile, and requires political nurturing through public institutions. Adorno’s concerns seem to persist though, since it is unclear how the process of institutional differentiation could ever get off the ground without having already achieved its aim of reconciliation.
Here I am invoking not a simple idea of natural commonality, but Adorno’s critical reconstruction of natural-historical community which recognises the inseparability of history and nature.
I have in mind restorative, therapeutic and ‘informal’ or ‘popular’ approaches to judgment and punishment, along the sort of lines proposed by Norrie (2005, pp. 33–49). I am grateful for Susan Marks for pointing out the potentially ‘de-politicising’ connotations of such ‘creative’ forms of judgment. Yet the idea of judging solidarity I have developed is what Adorno might call a ‘utopian’ concept, which acts both as a criticism of the present state of things, and a suggestion for change. The conditions of the possibility of realising, in practice, such judging solidarity would presumably be fairly thoroughgoing transformations of the totality of ‘wrong life’, its structures, practices and institutions, but this is something for future exploration.
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Acknowledgements
I presented an earlier version of this paper at ‘Deadlines’ Contemporary Issues in Legal and Political Theory Doctoral Colloquium at the University of Edinburgh, May 2008; thanks to those present for helpful comments. I also presented a slightly different version at the King’s College London International Graduate Legal Research Conference, June 2008, and am grateful to the organisers and to those present for their input. I’m indebted to Susan Marks, and two anonymous reviewers for Res Publica for helpful criticisms, and to Alan Norrie for his detailed comments and discussion of the paper as well as his invaluable ongoing guidance and encouragement. The writing of this paper has been made possible by a King’s College London Graduate School Studentship.
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Reeves, C. ‘Exploding the Limits of Law’: Judgment and Freedom in Arendt and Adorno. Res Publica 15, 137–164 (2009). https://doi.org/10.1007/s11158-009-9088-0
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DOI: https://doi.org/10.1007/s11158-009-9088-0