Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust

Abstract

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.