A Response To David Luban's Reassessment of Hannah Arendt On Genocide

Luis Pereira Coutinho, University of Lisbon School of Law, has published Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes at 28 Ratio Juris 326 (2015). Here is the abstract.

David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality - or realities - that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” - an idea that is also present in her imaginary condemnation speech of Eichmann - Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”

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Reassessing Arendt On Genocide

David J. Luban, Georgetown University Law Center, has published Arendt on the Crime of Crimes at 28 Ratio Juris 307 (2015). Here is the abstract.

Genocide is the intentional destruction of a group as such. What makes groups important, over and above the individual worth of the group's members? This paper explores Hannah Arendt's efforts to answer that question, and concludes that she failed. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept.

The full text is not available free from SSRN.

Hannah Arendt's Constitutional Theory

Christian Volk, University of Trier, has published Arendtian Constitutionalism: Law, Politics, and the Order of Freedom (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The meaning and function of law in Hannah Arendt’s work has never been the subject of a systematic reconstruction. This book examines Arendt’s work and reconstructs her ideas through political, legal and constitutional theory, and shows that her engagement with law is continuous as well as crucial to an adequate understanding of her political thought. The author argues that Arendt was very much concerned with the question of an adequate arrangement of law, politics and order – the so-called triad of constitutionalism. By adopting this approach, the author suggests an alternative interpretation of Arendt’s thought, which sees her as thinker of political order who considers as crucial a stable and free political order in which political struggle and dissent can happen and occur.
 

Hannah Arendt and Genocide

David Luban, Georgetown University Law Center, is publishing Arendt on the Crime of Crimes in Ratio Juris (forthcoming). Here is the abstract.

Genocide - the intentional destruction of groups “as such” – is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.

The paper analyzes several possible approaches to the problem of explaining the special value of groups, beginning with Raphael Lemkin’s theory of groups as contributors to universal civilization, and then turning to Arendt’s efforts. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept. For Arendt, group identification makes sense solely as a political act of resistance to persecution. In the conclusion, the paper examines a remarkable moment during the trial of Radovan Karadzić, when a defense witness explained his conversion to radical nationalism by quoting “Mrs. Hannah Arendt, a prominent philosopher.” The moment illustrates how hard it is to maintain the stance of humanity while assigning political value to group identity.

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A Reading of Kafka's "The Trial"

Robert P. Burns, Northwestern University School of Law, has published Preface for: Kafka's Law: 'The Trial' and American Criminal Justice (University of Chicago Press, 2014). Here is the abstract.

Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.

Download the text from SSRN at the link. 

Setting the Scenes of the Crimes

Alan W. Norrie, University of Warwick School of Law, has published Inaugural Lecture 'The Scene and the Crime' as Warwick School of Law Research Paper No. 2011-05. Here is the abstract.

What is the scene in relation to the crime? That question can be answered in many ways. It may be the legal process, the political, cultural and literary milieu, the social conditions, the historical context. This is an area where a thousand flowers may bloom. I don’t intend to pick them here, but to focus on where I have come from, and where I am headed. What I am going to say this evening will be tentative, and in a way risky, because I focus on something that contextual lawyers have generally avoided, perhaps for good reason. What I am going to dip my toes in is, indeed, something generally not seen as contextual at all, and that is how an understanding of ethical categories of good and evil may be required for the scene and the crime.

Download the paper from SSRN at the link.

Hannah Arendt As Theorist of International Criminal Law

David J. Luban, Georgetown University Law Center, has published Hannah Arendt as a Theorist of International Criminal Law in the International Criminal Law Review for 2011. Here is the abstract.

This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than that of Raphael Lemkin; (3) the "banality of evil," and its relation to legal conceptions of mens rea; and (4) her ultimately inconclusive assessment of law's capacity to confront the radically unprecedented crimes of regimes that are themselves criminal, and which systematically invert the values necessary to distinguish legal rules from exceptions. The essay was written for a symposium on women and international criminal law in honor of Judge Patricia Wald.

Download the article from SSRN at the link.