Pendas - El Juicio A Eichmann, Arendt y El Juicio de Auschwitz

Eichmann in Jerusalem, Arendt in Frankfurt:
The Eichmann Trial, the Auschwitz Trial,

and the Banality of Justice
Devin O. Pendas
Hannah Arendt’s Eichmann in Jerusalem retains its importance largely because

the dilemmas with which it wrestles have, if anything, grown rather than
diminished in significance since it first appeared in the early 1960s. While
Arendt rightly saw the Holocaust as an unprecedented crime, many of the
moral and legal paradoxes central to her analysis of Nazi trials are in fact not
specific to Holocaust trials as Holocaust trials.1 Rather, they pertain to all
This essay was fi rst presented at the conference “Eichmann in Jerusalem Forty Years Later” at
DePaul University, May 11–12, 2001. I would like to thank my colleague Paul Breines, the mem-
bers of the Social Theory Workshop at the University of Chicago, and the anonymous reviewers at
New German Critique for their helpful comments.
1. Thus she writes, “For the moral point of this matter is never reached by calling the thing by the
name of ‘genocide’ or by counting the millions of victims—extermination of whole peoples has hap-
pened before in antiquity, as well as in modern colonization—it is reached only when we realize that
this happened within the frame of a legal order, and that the cornerstone of this ‘new law’ consisted
of the command, ‘Thou shalt kill,’ not thy enemy but innocent people who were not even potentially
dangerous, and not for reason of necessity but, on the contrary, even against all military and other
utilitarian considerations” (Hannah Arendt, “Personal Responsibility under Dictatorship,” Listener
72 [1964]: 197, 205; hereafter cited as PR). Needless to say, some dimensions of Arendt’s analysis in
Eichmann in Jerusalem are specifically concerned with such trials as Holocaust trials. In particular,
her discussion of the concept of crimes against humanity, especially her insistence that the Holocaust
was a crime committed against humanity as such, perpetrated on the body of the Jews, obviously
depends on an understanding of the Holocaust as an unprecedented event.
New German Critique 100, Vol. 34, No. 1, Winter 2007
DOI 10.1215/0094033X-2006-019 © 2007 by New German Critique, Inc.
77
78 Eichmann, Auschwitz, and the Banality of Justice
trials that seek to deal with systematic, state-organized mass murder and
atrocity, what Arendt herself proposed to call “administrative massacres.”2
To see this, one need only compare her sophisticated assessment of Israel’s
jurisdiction in the Eichmann case in relationship to issues of sovereignty and
international law with some of the recent imbroglios in the U.S. Senate over
the new International Criminal Court (ICC).3 Therefore an analysis of the
antinomies of Arendt’s thought in this regard sheds light on a key legal and
moral dilemma of the twentieth century.
In this essay I focus on one such general paradox in Arendt’s work: the
tension between her analysis of banal evil and her insistence on individual
criminal and moral responsibility.4 If the notion of banal evil is to have any
force, it must point to the systematicity of state-organized mass murder and
the interchangeability of perpetrators in such cases. However, under these
circumstances, individual culpability becomes exceedingly difficult to assess
because almost none of the perpetrators is, as an individual, either fully in
control of events or indispensable to their completion. As the West German
jurist Peter Noll put it, “The psychological and therefore, in light of the prin-
ciple of guilt, the jurisprudential problem is that, in the case of organized mass
crimes, every single participant can, quite properly, see himself as fully replace-
able and, consequently, in the final analysis as not responsible for his actions.”5
Part of what Arendt tries to do in Eichmann in Jerusalem is to find a way to
resolve this paradox by encompassing banal evil and individual criminal
guilt within the same conceptual apparatus. As she noted in a letter to Karl
Jaspers in December 1960, “We have no tools to hand except legal ones with
2. Hannah Arendt, Eichmann in Jerusalem, rev. ed. (New York: Penguin, 1977), 288. Hereafter
cited as EJ. For a general treatment see Mark Osiel, Mass Atrocity, Collective Memory, and the
Law (New Brunswick, NJ: Transaction, 1997).
3. In contrast to Jaspers, say, Arendt maintained that Israel had a right to try Eichmann and that,
while an international court might have been preferable, the fact that no such court existed made
Israeli jurisdiction preferable to simply letting Eichmann go. For Arendt’s views of the propriety of
an Israeli trial for Eichmann, despite the illegality of his kidnapping, see Hannah Arendt and Karl
Jaspers, Correspondence, 1926–1969, ed. Lotte Kohler and Hans Saner (New York: Harcourt Brace,
1992), 414–15. On the fights over the ICC see Sarah Sewall and Carl Kaysen, The United States and
the International Criminal Court: National Security and International Law (Lanham, MD: Row-
man and Littlefield, 2000).
4. For a good overview of the central problematics in Eichmann in Jerusalem more generally
see Seyla Benhabib, “Arendt’s Eichmann in Jerusalem,” in The Cambridge Companion to Hannah
Arendt, ed. Dana Villa (Cambridge: Cambridge University Press, 2000), 65–85.
5. Peter Noll, “Die NS-Verbrecherprozesse strafrechtsdogmatisch und gesetzgebungspolitisch
betrachtet,” in Rechtliche und politische Aspekte der NS-Verbrecherprozesse: Gemeinschaftsvor-
lesung des Studium Generale, Wintersemester 1966/67, ed. Peter Schneider and Hermann J. Meyer
(Mainz: Gutenberg-Universität, 1968), 46.
Devin O. Pendas 79
which to judge and pass sentence on something that cannot even be adequately
represented either in legal terms or in political terms. . . . The question is:
would things be different if we had a law against hostes humani generis and
not only against murderers and similar criminals?”6 Unfortunately, Arendt’s
effort to answer this question ultimately falters, largely because her analysis
of the varieties of evil precludes conceptualizing a specifically legal justice
that could simultaneously encompass the Holocaust as a total social event—
that is, one mobilizing functionally interdependent actors from all (or nearly
all) domains of social and institutional life for genocide—and as a set of inter-
connected but individually perpetrated murders.
To fully grasp Arendt’s failure to successfully escape what Moishe
Postone has called the “antinomy of the universal and the particular,” it is
necessary to answer four interrelated questions.7 First, what does Arendt mean
by banal evil and how does it relate to the issue of systematicity and collec-
tivity in the Holocaust? Second, how does this relate to the question of indi-
vidual responsibility? Third, does it matter for her argument whether a given
defendant is accused of having killed directly or indirectly, from a desk or with
a gun or by dropping Zyklon B into the gas chambers of Auschwitz? And finally,
what are the implications of all this for the effort to enact justice in the wake
of genocide and mass atrocity?
In an introduction to the English translation of Bernd Naumann’s report-
age on the Frankfurt Auschwitz trial of 1963–65, Arendt tried to account for
those who actually implemented the Nazi genocide of the Jews.8 It is unfortu-
nate that this introduction has attracted so little attention from Arendt scholars
because it effectively completes her analysis of evil in modern life, comple-
menting, extending, and at least partially contradicting her writing on the topic
elsewhere in her oeuvre. My core argument here is that in attempting to ana-
lyze the nature of direct perpetrators of the Holocaust, those who actually shot,
gassed, or tortured their victims to death, Arendt balked at the implications of
her own earlier insights. Instead, she resorted to an all-too-easy generalization
6. Arendt and Jaspers, Correspondence, 417.

7. Moishe Postone, “Hannah Arendts ‘Eichmann in Jerusalem’: Die unaufgelöste Antinomie
von Universalität und Besonderem,” in Hannah Arendt Revisited: “Eichmann in Jerusalem” und
die Folgen, ed. Gary Smith (Frankfurt am Main: Suhrkamp, 2000), 269–90.
8. Hannah Arendt, introduction to Bernd Naumann, Auschwitz: A Report on the Proceedings
against Robert Karl Ludwig Mulka and Others before the Court at Frankfurt, trans. Jean Stein-
berg (London: Pall Mall, 1966), xi–xxx. On the Auschwitz trial more generally see Devin O. Pen-
das, The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law
(Cambridge: Cambridge University Press, 2006); and Rebecca Wittmann, Beyond Justice: The
Auschwitz Trial (Cambridge, MA: Harvard University Press, 2005).
of these killers as simple sadists. In part, she argues, as one might expect, that
the Holocaust released a latent sadism, hitherto unsuspected in its dimensions,
which thus partook of the general moral inversion of totalitarian regimes.
However, in doing so, she attributes psychological dispositions to direct Holo-
caust perpetrators that are both historically questionable and, more impor-
tant in this context, in tension with her own earlier account of what one recent
historian has called “the Nazi conscience.”9 Furthermore, the internal tension
within her own understanding of the nature of Holocaust perpetrators under-
mines her attempt to resolve the conceptual blockages confronting the law
when dealing with administrative massacre.10 The antinomies of Arendt’s
thought in this regard are those of the law itself.
Banal Evil
The meaning of banal evil in Arendt’s thought has of course been the subject
of considerable debate. The very phrase itself was one aspect of Eichmann in
Jerusalem that made the book so controversial. As is well known, Gershom
Scholem found the term particularly inappropriate, calling it a mere “catch-
word,” one that trivialized the Holocaust and lacked the understanding expressed
in Arendt’s own earlier conception of “radical evil.”11 Even more sympathetic
contemporary observers such as Seyla Benhabib have described the concept
as a “terminological infelicity.”12 And yet for all of the potential for misunder-
standing and all of the potential hurtfulness of the phrase, something about it
gets under one’s skin, a nagging sense that it captures something essential about
the Nazi genocide of the Jews that alternative descriptions, such as radical
evil, do not.
At the same time, as Richard J. Bernstein has rightly argued, the con-
cepts of radical and banal evil, as used by Arendt, represent two sides of the
same coin.13 On Bernstein’s reading, radical evil in effect covers the socio-
structural dimensions of the problem; banal evil, the psychological and ethi-
cal. Thus he interprets radical evil to mean “making human beings superflu-
9. Claudia Koonz, The Nazi Conscience (Cambridge, MA: Harvard University Press, 2003).
10. Michael R. Marrus has stressed Arendt’s attempt to work out the legal implications of the
category of crimes against humanity (“Eichmann in Jerusalem: Justice and History,” in Hannah
Arendt in Jerusalem, ed. Stephen A. Aschheim [Berkeley: University of California Press, 2001],
205–13).
11. Hannah Arendt, The Jew as Pariah, ed. Ron H. Feldman (New York: Grove, 1978), 245.
12. Benhabib, “Arendt’s Eichmann,” 66.
13. Richard J. Bernstein, Hannah Arendt and the Jewish Question (Cambridge, MA: MIT
Press, 1996), 137–53.
Devin O. Pendas 81
ous, eradicating the very conditions required for living a human life.”14 It is the
ethical structure of the totalitarian experiment in remaking humanity by
unmaking humans.15 Banal evil describes the ethical failure of perpetrators to
think, to grasp the meaning of their actions. “What is most frightening,” says
Bernstein, “is that this monstrous deed, this deliberate attempt to destroy and
transform the human condition does not require monstrous or ‘evil motives.’ It
can result from thoughtlessness—the inability to think—of ordinary, normal
people.”16 Thoughtlessness, on this interpretation of Arendt’s argument, is the
psychological prerequisite for the social enactment of superfluousness.17
However, “thoughtlessness” in this context does not mean ignorance.
Arendt is quite clear that Eichmann knew full well he was sending Jews to
be killed. His thoughtlessness was of an altogether different character. What
Eichmann was unable to think through was the moral implications of this kill-
ing. According to Arendt, he neither affirmed it as an ethical imperative, as a
committed ideologue would have done, nor rejected it as murder, as a man of
conscience ought to have done. In The Origins of Totalitarianism she notes:
No guiding principle of behavior, taken itself from the realm of human

action, such as virtue, honor, fear, is necessary or can be useful to set into
motion a body politic which no longer uses terror as a means of intimidation,
but whose essence is terror. In its stead, it has introduced an entirely new
14. Ibid., 152. Bernstein’s interpretation of Arendt is not without its critics. On the issue of super-
fluousness, for instance, Dana Villa agrees with Bernstein, but elsewhere he is implicitly quite critical
of Bernstein’s (and by extension my) social theoretic reading of Arendt, favoring a psychologistic and
philosophical interpretation that stresses Eichmann’s character: “It is obviously mistaken to maintain
that Eichmann . . . ‘could have been anyone,’ or that there is a little ‘Eichmann in us all.’ . . . He is
representative insofar as he stands for the contributions ‘normal’ men have made to political evil and
moral horror in the twentieth century. But he is hardly ‘typical’ of the perpetrators since these
included (as Arendt notes repeatedly) fanatics, sadists, thugs and brutes, as well as ‘desk murderers’”
(Politics, Philosophy, Terror: Essays on the Thought of Hannah Arendt [Princeton, NJ: Princeton
University Press, 1999], 54). As the present article seeks to show, it is precisely Arendt’s characteriza-
tion of the immediate killers in the Holocaust as “sadists, thugs and brutes” that is particularly prob-
lematic and that contradicts many of her own prior insights.
15. “Totalitarianism strives not toward despotic rule over men, but toward a system in which
men are superfluous. Total power can be achieved and safeguarded only in a world of conditioned
reflexes, of marionettes without the slightest trace of spontaneity. Precisely because man’s resources
are so great, he can be fully dominated only when he becomes a specimen of the animal species
man” (Hannah Arendt, The Origins of Totalitarianism, new ed. [New York: Harcourt Brace Jovan-
ovich, 1968], 457; hereafter cited as OT).
16. Bernstein, Hannah Arendt, 153.
17. For the “thoughtlessness” of Holocaust perpetrators see Hannah Arendt, The Life of the
Mind (New York: Harcourt Brace Jovanovich, 1978), 3–4.
principle into public affairs that dispenses with human will to action alto-
gether and appeals to the craving need for some insight into the law of
movement according to which the terror functions and upon which, there-
fore, all private destinies depend. (OT, 468)
Thus Arendt maintains that under totalitarianism, not only does terror itself
become the sole operative principle of social action but that “insight” into
that terror becomes the sole relevant motivator for such action. As Arendt put
it somewhat more concretely in Eichmann in Jerusalem, “The fundamental
problems posed by crimes of this kind . . . [is] that they were, and could only
be, committed under a criminal law and by a criminal state” (262). The ques-
tion then becomes, in effect, what is the ethical disposition necessary to enable
terror itself to function as both the telos and the techne of totalitarian societies.
And the answer, of course, is thoughtlessness. In The Life of the Mind, Arendt
considered this issue, asking, rhetorically:
Is evil-doing, not just the sins of omission but the sins of commission, pos-
sible in the absence not merely of “base motives” (as the law calls it) but of
any motives at all, any particular prompting of interest or volition? Is wicked-
ness, however we may define it, this “being determined to prove a villain,”
not a necessary condition for evil-doing? Is our ability to judge, to tell right
from wrong, beautiful from ugly, dependent upon our faculty of thought?
Do the inability to think and a disastrous failure of what we commonly call
conscience coincide?18
Arendt clearly thinks that, yes, such unmotivated evildoing is possible and
that it is the very essence of what she means by the term banal evil.
Such evil is banal in a dual sense. First, it is not grandiose. It has about
it not the slightest whiff of “satanic greatness.”19 Consequently, it is a purely
unromanticized evil. No transformation, aesthetic or otherwise, can trans-
mute it, like Milton’s Lucifer, into a seductive and even sympathetic “dark
angel.” Rather, it is merely evil and hence purely evil, and thus, contra Scho-
lem’s critique, it is the very opposite of trivializing. This is an evil so banal
that, Arendt’s own protestations to the contrary, it becomes radical.20 Second,
18. Arendt, Life of the Mind, 418.

19. The phrase is Jaspers’s, in a letter to Arendt about his own work on German guilt (Arendt
and Jaspers, Correspondence, 62).
20. Thus in response to Scholem she writes: “It is indeed my opinion now that evil is never
‘radical,’ that it is only extreme, and that it possesses neither depth nor any demonic dimensions. It
can overgrow and lay waste the whole world precisely because it spreads like a fungus on the sur-
face” (Jew as Pariah, 250).
Devin O. Pendas 83
this thoughtless, unmotivated evil is banal in that it is mundane and ordinary

as well. Like the logic of everyday life in modernity itself, evil is banal both
because it is general, typical, and unexciting and, in Arendt’s more technical
sense, because there is a systematic and increasing disconnect between indi-
vidual motivation or will and collective action. These two meanings are deeply
related, in that the typicality of banal evil rests precisely on the systematic under-
mining of individual will as the guiding principle of social action in moder-
nity. Here, modernity is itself banal. Most frightening of all, though, is that if
this is true, then banal evil is banal in the final sense of being—potentially at
least—an incipiently universal condition of modern life itself.21
But what is it about modernity that creates this systematic (potential for)
thoughtlessness? A proper answer would, for Arendt, involve two dimensions:
one political, one ontological. Politically, there is a suggestive remark in The
Origins of Totalitarianism in which Arendt notes that “by pressing men against
each other, total terror destroys the space between them. . . . It destroys one
essential prerequisite of all freedom which is simply the capacity for motion
which cannot exist without space” (466). By this, Arendt means that, in con-
trast to tyranny, which merely abolishes law and substitutes for it arbitrary
lawlessness, totalitarianism replaces ordinary law, which establishes boundar-
ies and hence a space of freedom between individuals, with a new, “higher”
law, the law of nature or history (OT, 465). It is this total terror, the illegality of
lawfulness, which Arendt in the end came to see as the essence of totalitarian-
ism. Under such conditions, mass murder is nothing less than the effort to
accelerate history by eliminating the unpredictability inherent in the fact that
each new human being is born with infinite possibilities open to him or her,
what Arendt described as “natality.”22 What is killed is not just human beings,
or specific groups of human beings, but “the plurality of men” (OT, 466).
Precisely because such an interpretation of totalitarianism rests on
what Benhabib refers to as the “anthropological universalism” of Arendt’s
moral philosophy, it belies a merely political explanation alone.23 Since Arendt
grounded the capacity for moral judgment and freedom in the same ontologi-
cal conditions of human life she used to explain totalitarianism, particularly
21. This, of course, is the central argument in Zygmunt Bauman, Modernity and the Holocaust
(Ithaca, NY: Cornell University Press, 1989). Cf. Detlev J. K. Peukert, “The Genesis of the ‘Final
Solution’ from the Spirit of Science,” in Nazism and German Society, 1933–1945, ed. David F.
Crew (London: Routledge, 1994), 274–99.
22. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 177–78.
Hereafter cited as HC.
23. Benhabib, “Arendt’s Eichmann,” 80.
natality and mortality as the conditions for newness and boundedness, respec-
tively, she could hardly have been satisfied with situating banal evil entirely
within the political specificity of totalitarianism. Rather, in this respect, we
must recall her wider analysis of totalitarian movements as a specific politi-
cal expression of mass societies. “Totalitarian movements,” she insists, “are
mass organizations of atomized, isolated individuals” (OT, 323). So it is the
simultaneous massification and atomization of modern societies that ground
totalitarian movements and, by extension, the potential thoughtlessness that
constitutes banal evil.
Arendt was quite clear that such massification and atomization was
only one possible concomitant of modernity. For Arendt, totalitarianism was
a project of creating mass society: “The totalitarian movements aim at and
succeed in organizing masses—not classes, like the old interest parties of the
Continental nation-states; not citizens with opinions about, and interests in,
the handling of public affairs, like the parties of Anglo-Saxon countries” (OT,
308). Clearly, class societies or societies of citizens are also potential politi-
cal expressions of modernity. However, Arendt insists that one must not forget
that mass society, although reaching its culmination in totalitarian regimes,
has deep roots in the history of modern European societies. This is a crucial
point in her analysis of imperialism. Racialized imperialism, especially in
South Africa, “taught the mob the great lesson of which it had always had a
confused premonition, that through sheer violence an underprivileged group
could create a class lower than itself” and that it could do so in alliance with,
not in opposition to, the ruling class (OT, 206). Imperialism thus prefigured
the totalitarian project of creating a mass society in opposition to both class
and civil society. Hence the specific historical trajectory of European moder-
nity created the conditions of possibility for the massification and atomiza-
tion of society, with all of the attendant and disastrous moral consequences.
Another dimension to banal evil is crucial here as well. Benhabib notes,
“A better phrase than the ‘banality of evil’ might have been the ‘routinization
of evil’ or its Alltäglichung (everydayness).”24 But what routine aspect of mod-
ern life both massifies and atomizes society while also accounting for the pos-
sibility of utterly unmotivated action? There can be only one possible answer
to that question: the systematic, impersonal organization of social action. As
Arendt puts it, the “emergence of society . . . out of the shadowy interior of
24. Seyla Benhabib, “Hannah Arendt and the Redemptive Power of Narrative,” Social Research
57 (1990): 185.
Devin O. Pendas 85
the household into the light of the public sphere” has undermined the distinc-
tion between the public and the private (HC, 309). This in turn has under-
mined the very possibility of autonomous action. “[Society] always demands
that its members act as though they were members of one enormous family
which has only one opinion and one interest” (HC, 39). The emergence of the
social as a distinct mode of human existence finds concrete expression in
bureaucracy, which Arendt calls “the most social form of government,” “the
rule of nobody” (HC, 40, 45). In other words, bureaucracy constitutes the most
complete manifestation of the subsumption of action by the social.
In this, the emergence of society is only a more general version of social
processes that find their ultimate expression in the historically specific emer-
gence of mass society.25 This is the political dimension of the modern rever-
sal of the relationship between contemplation and action, and the consequent
triumph of Homo faber within the vita activa, as well as the ultimate defeat
of Homo faber himself by the animal laborans, by the logic of “pain and plea-
sure experienced in the production or in the consumption of things” (HC, 309).
Because the increasing domination of society over both the public and private
spheres is marked by a logic of labor, conceptualized by Arendt as encompass-
ing both production and consumption, subordinating all individuals to broad
“life forces,” it makes possible the coordination of social action without ref-
erence to either private interests or public reasons; in other words, it grounds
the possibility of precisely that kind of moral thoughtlessness characteristic of
banal evil.26
Many other social theoreticians concur with Arendt’s account of the
emergence of a “society,” which shows an “irresistible tendency to grow, to
devour the older realms of the political and private as well as the more recently
established sphere of intimacy” (HC, 45). Max Weber argued both that bureau-
cracy helped render individual motivation irrelevant to institutional outcomes
and that during their historical development, general social systems, such as
in his case the spirit of capitalism, can become detached from any particular
25. “With the emergence of mass society, the realm of the social has finally, after several cen-
turies of development, reached the point where it embraces and controls all members of a given
community equally and with equal strength” (HC, 41).
26. “Socialized mankind is that state of society where only one interest rules, and the subject of
this interest is either classes or man-kind, but neither man nor men. The point is that now even the
last trace of action in what men were doing, the motive implied in self interest, disappeared. What
was left was a ‘natural force,’ the force of the life process itself, to which all men and all human
activities were equally submitted (‘the thought process itself is a natural process’) and whose only
aim, if it had an aim at all, was survival of the animal species man” (HC, 321).
motivational structure whatsoever.27 And Jürgen Habermas has argued that

the “colonization” of phenomenological life-worlds characterized by com-
municative rationality through systemic structures of instrumental or strategic
rationality makes action coordination possible without having to give reasons,
and thus provide motives, for such action.28 To the extent that these are plausi-
ble accounts of the character of modern life, they point to the very deep roots
of systematic thoughtlessness—unmotivated, yet coordinated action—in moder-
nity itself.29
Individual Responsibility
If the emergence of the social thus constitutes the ultimate condition of pos-
sibility for banal evil, on Arendt’s account, what then is the nature of indi-
vidual responsibility in that context? Despite their importance to her own
theory, Arendt explicitly states that structural factors—such as the emergence
of the social—are not and, under current legal forms, cannot be considered
essential to the legal determination of guilt: “Of course it is important to the
political and social sciences that the essence of totalitarian government, and
perhaps the nature of every bureaucracy, is to make functionaries and mere
cogs in the administrative machinery out of men, and thus to dehumanize
them. . . . [Yet] one must realize clearly that the administration of justice can
consider these factors only to the extent that they are circumstances of the
crime” (EJ, 289). Such circumstances can never excuse or eliminate the guilt
of the perpetrator, any more than poverty excuses theft. Indeed, she insists
that, whatever the value of various theories of determinism to explain human
action, “what is not debatable is that no juridical procedure would be possi-
ble on the basis of them, and that the administration of justice, measured by
27. See Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed. Guenther
Roth and Claus Wittich, vol. 2 (Berkeley: University of California Press, 1978), 978–80; and
Weber, The Protestant Ethic and the Spirit of Capitalism (London: Routledge, 1992), 180–83.
28. Jürgen Habermas, The Theory of Communicative Action, trans. Thomas McCarthy, 2 vols.
(Boston: Beacon, 1984).
29. The extent to which modernity is the proper term to describe the general social structure in
question is obviously beyond the scope of the present essay. Suffice it to say that one could easily
argue that capitalism rather than modernity is the proper conceptual category. For some extremely
provocative thoughts in this direction see Moishe Postone, “Nationalsozialismus und Antisemitis-
mus: Ein theoretischer Versuch,” in Zivilisationsbruch: Denken nach Auschwitz, ed. Dan Diener
(Frankfurt am Main: Fischer, 1988), 242–54; Postone, “The Holocaust and the Trajectory of the
Twentieth Century,” in Catastrophe and Meaning: The Holocaust and the Twentieth Century, ed.
Moishe Postone and Eric Santner (Chicago: University of Chicago Press, 2003), 81–114; and, more
generally, Postone, Time, Labor, and Domination: A Reinterpretation of Marx’s Critical Theory
(Cambridge: Cambridge University Press, 1993).
Devin O. Pendas 87
such theories, is an extremely unmodern, not to say outmoded, institution” (EJ,

290). Consequently, she concludes, current legal systems and jurisprudential
concepts are inadequate to deal with administrative massacres.30
Yet she thinks such trials are indispensable. But why? On what basis can
she defend the indispensability of trials that can be, at best, “unmodern” and
that must of necessity fail to grasp the systematicity at the heart of banal evil?
The answer lies in the necessity for moral judgment and the demands of jus-
tice. In such trials, Arendt states, we insist that “human beings be capable of
telling right from wrong even when all they have to guide them is their own
judgment, which, moreover, happens to be completely at odds with what they
must regard as the unanimous opinion of all those around them” (EJ, 294–95).
It is not enough to condemn large groups or historical trends, because they are
“so general that distinctions can no longer be made, names no longer named”
(EJ, 296).
We must legally judge and, if necessary, condemn individuals because
they are the moral agents of action; names must be named because only those
with names—that is, only individuals—are capable of action, and it is action
that interrupts our path from birth to death.31 As such, action is creative and
hence entails enormous risks. By its very newness, it is impossible to predict
what action will produce. If morality is to be more than mores, Arendt insists,
it must rely on the “good will to counter the enormous risks of action by readi-
ness to forgive and to be forgiven, to make promises and to keep them” (HC,
245). It is the “faculty to undo what we have done and to control at least par-
tially the processes we have let loose” that allows us to avoid being the “victims
of an automatic necessity bearing all the marks of . . . inexorable laws” (HC,
246). If action is thus the condition of possibility for human freedom according
to Arendt, then punishment must be the means for attempting to enforce those
promises that bound the intrinsic unpredictability of our capacity for action.
In arguing for the necessity of punishing wrongdoing, Arendt is clearly
borrowing from Jasper’s famous distinction between criminal and other—
political, moral, or metaphysical—forms of guilt.32 Ironically enough, she also
30. “This is only one example among many to demonstrate the inadequacy of the prevailing
legal system and of current juridical concepts to deal with the facts of administrative massacres
organized by the state apparatus” (EJ, 294).
31. “If left to themselves, human affairs can only follow the law of mortality, which is the most
certain and the only reliable law of a life spent between birth and death. It is the faculty of action that
interferes with this law because it interrupts the inexorable automatic course of daily life” (HC, 246).
32. Karl Jaspers, Die Schuldfrage: Von der politischen Haftung Deutschlands (Munich: Piper,
1974), 17–20.
recapitulates the language of the West German Supreme Court, which defines
guilt as “reproachability,” the reproach being that the accused “did not act
legally, although he could have decided to obey the law. The inner founda-
tion of guilt as a reproach lies in the fact that human beings are invested in
free, responsible, ethical self-determination and are therefore capable of decid-
ing for law and against injustice.”33 This is exactly the value of legal proceed-
ings, according to Arendt, for the law “presupposes an independent human
faculty, unsupported by law and public opinion, that judges anew in full sponta-
neity every deed and intent whenever the occasion arises” (PR, 187). In effect,
by insisting that individuals are uniquely responsible for their own actions, no
matter what the structural context of that action, the law preserves the highest
ethical calling of humanity in the face of the increasingly dangerous likelihood
of horrendous action in the world.
Far from treating individual defendants in Holocaust trials as mere
cogs in a vast machine, the law insists that even under such circumstances, it
is the individual human agent who stands trial. “In a court-room there is no
system on trial, no history or historical trend, no ‘ism,’ anti-Semitism for
instance, but a person; and if the defendant happens to be a functionary, he
stands accused precisely because even a functionary is still a human being,
and it is in this capacity that he stands trial” (PR, 186). To the defense’s claim
that the defendants were mere cogs, the court responds: “And why did you
become a cog or continue to be a wheel in such circumstances?” (PR, 186).
To try defendants in cases of administrative massacre as representatives of a
system, instead of as individual human beings capable of moral reflection,
would truly be to try them as scapegoats.
And now we can see the true dimensions of the paradox facing Arendt
in the Eichmann case. For when she insists that what was on trial in Jerusalem
was the deeds of Adolf Eichmann as an individual, “not the sufferings of the
Jews, not the German people or mankind, not even anti-Semitism and racism,”
she is insisting on full, individual legal accountability (EJ, 5). But she finds
herself compelled to do so on the basis of a theory of ethical judgment (thought-
fulness versus thoughtlessness) whose very foundation in the social conditions
of modernity—massification, atomization, and bureaucratization—she denies
are relevant to the legal proceedings that seek to render judgment. Furthermore,
these historical conditions make an ethics based entirely on claims of radical
individual autonomy increasingly seem, at best, like the voice of one crying in
the wilderness and, at worst, like a form of wishful thinking.
33. Entscheidungen des Bundesgerichtshofs in Strafsachen, vol. 2 (Berlin: Heymann, 1952), 200.
Devin O. Pendas 89
This is the foundation of the great insight of Arendt’s notion of banal

evil. In explaining Eichmann’s evil, she claims that not only did he not have
malicious motives for his action—the kind of motives that German law at
least makes the sine qua non of the reproachability that grounds guilt—but
that he in fact had “no motives at all,” that he simply “never realized what he
was doing” (EJ, 5).34 Again, this is not a claim that Eichmann was ignorant of
the fate of the Jews he was deporting, in which case he would not have been
criminally liable. Instead, what he failed to realize was the moral dimension
of what he was doing. It was this that made his evil banal. The incapacity for
judgment was no idiosyncratic glitch in Eichmann’s personality but an inher-
ent potential within the moral structure of modern life itself. As such, it obvi-
ously poses a profound challenge to the vision of human nature intrinsic to
legal theories of guilt. What it demands is a system of justice that recognizes
this and confronts it head-on, rather than hide behind fictions like reproach-
ability. What Arendt, in effect, tries to do in Eichmann in Jerusalem is to rec-
oncile the ontological and historical dimensions of her overall interpretation
of the human condition in the face of totalitarian manifestations of moder-
nity. We are, she insists, ontologically capable of moral action, even if, under
given historical circumstances, we live in a world that seeks not to abolish
but to invert that moral capacity. Yet not even totalitarianism can completely
abolish the ontological potential for freedom, which is inherent in the human
capacity for action embedded in our condition of natality. Hence it cannot
abolish our capacity for moral judgment either. The law can judge even Eich-
mann’s crimes, perhaps especially Eichmann’s crimes, because, at the end of
the day, he remained human.35
Auschwitz and the Problem of Direct Killing

The difficulties of this paradox become even clearer when one asks what
Arendt might make of those Nazi criminals of whom one could not plausi-
bly say that they did not realize what they were doing. Does it make sense
to describe a torturer as having been thoughtless when he deliberately and
34. On the German legal theory of guilt see Pendas, Frankfurt Auschwitz Trial, 71–79.
35. “Once the moral person has been killed, the one thing that still prevents men from being
made into living corpses is the differentiation of the individual, his unique identity” (OT, 453). It
should be noted that Arendt is here speaking of the victims of totalitarianism, not its perpetrators.
Later she adds that “after the murder of the moral person and the annihilation of the juridical per-
son, the destruction of the individuality is almost always successful” (OT, 455). It seems, however,
that in Eichmann’s case, unlike that of his victims, this final step was not taken. Otherwise, it is
unclear how Arendt could argue for his moral and legal culpability.
brutally beat a man to death? And, if it does not, how does one make sense
of the fact that such torture nonetheless took place, not simply in the context
but as an essential component of systematic genocide, a fact of which Arendt
was acutely aware?36 Can all Holocaust perpetrators be usefully described as
“thoughtless” and thus banal? Clearly, Arendt would not say that all evil is
banal, but is all of the evil of the Holocaust banal? And again, if it is not, how
does one describe it? And if one describes it with different categories, as
Arendt ultimately does, can one still grasp the Holocaust as a unitary event?
Eichmann’s thoughtlessness is grounded largely on his distance from
the “actual killing,” to borrow Tolstoy’s phrase.37 Arendt insists on the inad-
equacy (and irrelevance) of the prosecution’s efforts to demonstrate that Eich-
mann had on at least one occasion personally killed his victims, not simply
because she felt that they did not, perhaps could not, prove that part of their
case. Rather, she decried this effort mainly because it was part of what she
perceived to be a larger project to transform Eichmann from an ordinary into
an extraordinary man, and thus into a monster.38 What neither the prosecu-
tion nor the judges in the Eichmann trial could confront was the possibility
that “an average, ‘normal’ person, neither feeble-minded nor indoctrinated
nor cynical, could be perfectly incapable of telling right from wrong. . . .
their case rested on the assumption that the defendant, like all ‘normal
persons,’ must have been aware of the criminal nature of his acts” (EJ, 26).
But that is precisely what Eichmann did not realize; it is what made his evil
banal.
What happens to this analysis, though, when it confronts men who did
in fact kill with their own hands, indeed who frequently did so in particularly
gruesome and brutal ways? This question is by no means a philosophical par-
lor game. After all, however indispensable Eichmann and his ilk may have
been for the planning and bureaucratic organization of the Final Solution,
they could hardly dispense with the men (and it was largely men) who did
the actual killing either. Like the war itself, the Holocaust was an enormous,
continent-spanning operation that mobilized nearly all of the resources of
the modern nation-state. As with war, this meant that participants ran the
gamut from those who planned to those who organized to those who imple-
36. See her discussion of SS torture in OT, 453–54.

37. Leo Tolstoy, The Raid, and Other Stories, trans. Louise Maude and Aylmer Maude (Oxford:
Oxford University Press, 1982), 1.
38. On this attempt more generally see Lawrence Douglas, The Memory of Judgment: Making
Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001),
178–81.
Devin O. Pendas 91
mented the operation. And, again like the war itself, implementation in this
instance meant killing.39 All I mean to point out with this parallel is that, as
a total social event, like war, the Holocaust encompassed a variety of killers,
some of whom used pens and others who used machine guns or gas pellets or
even clubs. All of them were part of the Holocaust. Arendt’s analysis of the
banality of evil applied to the one category of killers, but does it pertain to the
others? Arendt herself thought not.
In her introduction to Naumann’s book on the Frankfurt Auschwitz
trial, Arendt wrestled systematically with the question of direct killing in the
Holocaust in a way that is quite rare elsewhere in her work.40 The twenty-odd
defendants in the Auschwitz trial included camp adjutants and an inmate
Kapo, as well as representatives of the camp executive, the leadership of the
protective custody camps, the camp Gestapo, and the SS medical person-
nel.41 Although the crime of genocide was incorporated into German statu-
tory law (§220 StGB) after the war, the prohibition on ex post facto law in
the Basic Law (Article 103) was held to preclude the prosecution of Nazi
atrocities as genocide.42 The same logic applied to the charge of crimes against
39. I point here to the parallel between the war and the Holocaust to highlight the fact that organi-
zation alone did not result in the deaths of millions of Jews. Others have pointed to this parallel in a
more specific sense. Lucy Dawidowicz, for instance, claims that “the conventional war of conquest
was to be waged parallel to, and was also to camouflage, the ideological war against the Jews” (The
War against the Jews, 1933–1945 [New York: Bantam, 1986], xxi). However problematic some
aspects of Dawidowicz’s often tendentious argument may be, she is clearly right to point to the neces-
sary correlation between the Holocaust and Nazi war more generally. For a more-nuanced argument
linking the Holocaust to Nazi war making see Christopher R. Browning, Nazi Policy, Jewish Work-
ers, German Killers (Cambridge: Cambridge University Press, 2000), 26–57. Finally, for a provoca-
tive attempt to put killing, rather than dying, firmly at the center of the history of war see Joanna
Bourke, An Intimate History of Killing: Face to Face Killing in Twentieth Century Warfare (New
York: Basic, 1999). Cf. Stéphane Audoin-Rouzeau and Annette Becker, 14–18, Understanding the
Great War, trans. Catherine Temerson (New York: Hill and Wang, 2002), 39–42.
40. Naumann, Auschwitz. The German edition, somewhat longer than the English, appeared as
Auschwitz: Bericht über die Strafsache gegen Mulka und andere vor dem Schwurgericht Frank-
furt (Frankfurt am Main: Athenäum, 1965). Naumann’s reports appeared originally in the Frank-
furter Allgemeine Zeitung.
41. In addition to Koonz, Nazi Conscience, see Hermann Langbein, Der Auschwitz-Prozess:
Eine Dokumentation, 2 vols. (Frankfurt am Main: Neue Kritik, 1995); Gerhard Werle and Thomas
Wandres, Auschwitz vor Gericht: Völkermord und bundesdeutsche Strafjustiz (Munich: Beck,
1995); and Friedrich-Martin Balzer and Werner Renz, eds., Das Urteil im Frankfurter Auschwitz-
Prozess, 1963–1965 (Bonn: Pahl-Ruenstein, 2004).
42. It is true that the German Basic Law acknowledges the supremacy of international over
German domestic law (Article 25), which would seem to imply the applicability of the 1948 U.N.
Genocide Convention to Nazi crimes. However, this supremacy of international over domestic
affairs was excluded in matters of constitutional law, meaning that the constitutional prohibition on
ex post facto law still applied.
humanity, which German courts had used—reluctantly—to prosecute Nazi

crimes during the occupation period.43 Consequently, the defendants were
charged with ordinary murder under German statutory law, eleven of them as
perpetrators and eleven as accomplices. As Arendt herself notes, the charges
fell into roughly two categories: (1) murder as part of the general extermina-
tion process at Auschwitz, typically by participation in so-called selections,
where prisoners were chosen for the gas chambers; and (2) direct, personal
killings during judicial or extrajudicial executions, torture, medical murders,
or other so-called excessive acts. In approximately half the cases, the defen-
dants were charged with specific excessive acts, that is, with having killed
one or more prisoners with their own hands.
Thus the Auschwitz trial represents the opposite side of the coin from
the Eichmann trial, the point of application for the policies he helped orga-
nize. On Arendt’s reading, the Auschwitz trial raised three interrelated prob-
lems. These were the issue of West German public opinion, the difficulties of
legal continuity or discontinuity between the Federal Republic and the Third
Reich, and, most important for this essay, the question of the character of the
defendants.
Arendt begins her analysis of the Auschwitz trial by noting its unpopu-
larity in Germany, stressing that the massive press coverage appeared to have
done little to transform that opinion to support for trials of Nazis.44 The par-
ticular relevance of this disjuncture for Arendt—aside from the political threat
she perceives in it—resides in the fact that it created major legal difficulties
for the prosecution during the trial because a great many German witnesses,
including especially the defendants themselves, changed their testimony
between the pretrial interrogations and the trial itself. Not only did this make
the prosecution’s job more difficult, but it also revealed something essential
about the defendants themselves:
The point of the matter is that the defendants at Frankfurt, like almost all
other Nazi criminals, not only acted out of self-protection but showed a
remarkable tendency to fall in line with whoever happened to constitute
their surroundings—to “coordinate” themselves, as it were, at a moment’s
notice. It is as though they had become sensitized not to authority and not
to fear but to the general climate of opinion to which they happened to be
exposed. (intro. to Naumann, xx)
43. For a general consideration of these matters see Adalbert Rückerl, NS-Verbrechen vor Gericht:
Versuch einer Vergangenheitsbewältigung (Heidelberg: Müller, 1984), 105–23.
44. Cf. Devin O. Pendas, “‘I didn’t know what Auschwitz was’: The Frankfurt Auschwitz Trial
and the German Press, 1963–1965,” Yale Journal of Law and the Humanities 12 (2000): 397–446.
Devin O. Pendas 93
Thus in the Third Reich, they were criminals; in a postwar West Germany,
good citizens who manipulated the unpopularity of Nazi trials for their own
benefit. This portrait is very much in keeping with Arendt’s earlier assertion,
in The Origins of Totalitarianism, that the goal of totalitarianism “has never
been to instill convictions but to destroy the capacity to form any” (OT, 468).
To be more precise, what totalitarianism destroys is the capacity to form any
independent convictions, those discovered through thought (internal dia-
logue), action (social dialogue), and self-reflexive judgments (HC, 181–88).
The Auschwitz trial defendants are typical totalitarian subjects. They do as
they are told because they cannot think what else to do, much as Eichmann
did. At this point, then, their evil too seems quite banal. This is worth noting
because by the time Arendt reaches the end of her analysis, she completely
contradicts herself on this issue.
The incapacity of most of the Auschwitz trial defendants for indepen-
dent judgment is highlighted for Arendt only by the contrast with the defen-
dant Franz Lucas. Lucas was a physician who was charged with, and who
eventually confessed to, having participated in at least one so-called ramp
selection, where incoming prisoners were separated into those capable of
work and the rest, who were immediately gassed. Lucas, however, was able
to produce a great many survivor witnesses who testified on his behalf, not-
ing his numerous lifesaving acts of kindness and generally humane treat-
ment of the prisoners. For Arendt, as for much of the German press, Lucas
became emblematic of that “other Germany,” one populated by “secret heroes”
who not only evaded both legal and more general political or moral guilt
but who actively preserved the possibility of goodness under extreme cir-
cumstances.45 “One doesn’t quite understand why he is there at all,” she notes
(intro. to Naumann, xvi). Ostracized by his fellow defendants, Lucas was the
sole defendant who agreed to accompany the court on its visit to the “scene of
the crime” at Auschwitz. And Arendt is particularly taken by his modesty, his
refusal to take credit for his lifesaving activities, in contrast to the remaining
defendants, who took every opportunity, most of them bogus, to brag about hav-
ing saved the lives of inmates. However, once it became apparent that he had in
fact participated in selections, “the court, bound by its legal assumptions, could
not help but mete out the minimum punishment to this man, although the judges
knew quite well that in the words of a witness, he ‘didn’t belong there at all. He
was too good’” (intro. to Naumann, xxv).
45. The term secret hero comes from Hannah Arendt, “Organized Guilt and Universal Respon-
sibility,” in Essays in Understanding, 1930–1954, ed. Jerome Kohn (New York: Harcourt Brace
Jovanovich, 1994), 125.
This indeed points to a central difficulty of the trial, in Arendt’s view,

namely, the court’s distinction between mass murder and crimes committed
against individuals, a problem she fuses to the issue of legal continuity between
the Third Reich and the Federal Republic.46 This is her second major theme in
dealing with the Auschwitz trial. The prohibition on ex post facto law meant
the defendants could be charged with murder only as defined in the 1871 crim-
inal code, which unsurprisingly made no provisions for state-organized mass
killing. “Hence, what the old penal code had utterly failed to take into account
was nothing less than the everyday reality of Nazi Germany in general and of
Auschwitz in particular” (intro. to Naumann, xxi–xxii). Because, under such
circumstances, no one who served in Auschwitz was truly innocent, a different
yardstick of guilt was required from that ordinarily applied in criminal trials,
one that defined the “intolerable” guilt of a few, exemplary Auschwitz defen-
dants, as opposed to the, presumably “tolerable,” guilt of the majority who
would never be brought to trial.47
To solve this problem, the court stipulated that Nazi crimes, too, had
always been illegal and hence subject to criminal prosecution. However, this
neglected the legal status of the führer’s will as valid law in the Third Reich and
thus strengthened the defense’s claim that a state cannot prosecute its own prior
activities.48 In other words, either the Third Reich and the Federal Republic
were continuous regimes, in which case Nazis could not be tried, since that
would amount to putting them on trial for crimes ordered by the same authority
prosecuting them, or there was no legal continuity from the Third Reich to the
Federal Republic, in which case, the FRG had no legal jurisdiction over crimes
that had been stipulated as legal by an independent regime.49 As Hans Latern-
ser, “by far the most intelligent among the attorneys for the defense,” asked,
why weren’t these crimes prosecuted at the time (intro. to Naumann, xxiii)?50
46. On the problematic of legal continuity as it played out in the Auschwitz trial see Devin O.
Pendas, “Truth and Its Consequences: Reflections on Political, Historical, and Legal ‘Truth’ in West
German Holocaust Trials,” traverse: Zeitschrift für Geschichte/Revue d’histoire 11 (2004): 25–38.
47. Arendt begins the essay by noting that approximately two thousand SS men served in Ausch-
witz during its existence; only a handful of them, the “intolerable cases,” would ever stand trial.
48. This dilemma is analyzed at length in Werle and Wandres, Auschwitz vor Gericht, 30–40.
On the efforts by the defense to exploit this issue see Pendas, Frankfurt Auschwitz Trial, 217–22.
49. “In Frankfurt at any rate, the unhappy result of the court’s unrealistic assumptions was that
the chief argument of the defense—‘a state cannot possibly punish that which it ordered in another
phase of its history’—gained considerably in plausibility since the court, too, agreed to the underly-
ing thesis of a ‘continuity of identity’ of the German state” (intro. to Naumann, xxii).
50. On Laternser more generally see Christian Dirks, “Selecture als Lebensretter: Die Verteidi-
gungsstrategie des Rechtsanwalts Dr. Hans Laternser,” in “Gerichtstag halten über uns selbst . . .”:
Geschichte und Wirkung des ersten Frankfurter Auschwitz-Prozesses, ed. Irmtrud Wojak (Frankfurt
am Main: Campus, 2001), 163–92.
Devin O. Pendas 95
Since they clearly were not, does this not mean that they were in fact legal at
the time of their commission? “These questions remained unanswered, indicat-
ing just how precarious were the legal foundations of the proceedings” (xxiii).
What Arendt does not investigate in her essay, however, is the German
courts’ solution, which was to distinguish de facto from de jure. In theory,
the Third Reich was still subject to rule of law, as laid down statutorily at the
founding of the German Reich in 1871; in practice, such laws could not be
enforced because of naked exercise of power by the Nazis. Hence the argu-
ment, made by the presiding judge in the Auschwitz trial in his oral verdict,
but widespread in both the legal literature and court decisions of the 1950s
and 1960s, that the reason the Third Reich did not prosecute Nazi crimes
was not the legality of Nazi law but the de facto coercive prohibition on
investigation of SS crimes enforced by the Nazi hierarchy.51 However implau-
sibly, the claim was made that German judges and prosecutors would have
loved nothing better than to prosecute Auschwitz commandant Höss in 1943,
if only they had been allowed. This was the German way of having continu-
ity and discontinuity simultaneously. The implausibility, not to say dishon-
esty, of this thesis highlights even more than Arendt’s analysis the fragility
of West German Nazi trials. It also takes more seriously, though, the tension
between the demands of justice, on the one hand, and the claims of historical
truthfulness, on the other, because in this instance, the two were largely incom-
patible.52 Either one could have trials or a historically accurate portrayal of
Nazi law but not both.
Which brings us to Arendt’s third point. For her, because the trial had to
deal with mass murder, it ruined what would otherwise have been an “essen-
tially very simple case” (intro. to Naumann, xxiv). The tricky legal issues of
continuity and jurisdiction relating to state criminality hid the relatively sim-
ple assessment of the character of the defendants in the Auschwitz trial. What
she finds most salient about the majority of these defendants was that, for her,
they were in fact ordinary criminals. Unlike Eichmann, they were not in the
least banal in their evil but, in fact, quite ordinary, which is to say in this con-
text, monstrous. Most of the accusations against the accused for which there
was concrete evidence centered on what in German law are referred to as
“excessive acts,” namely, those criminal acts in an organizational setting that
went beyond the orders issued, what the regulations stipulated, or the functional
51. See Pendas, Frankfurt Auschwitz Trial, 229–30. Cf. Rebecca Wittmann, “Legitimating the
Criminal State: Former Nazi Judges and the Distortion of Justice at the Frankfurt Auschwitz Trial,
1963–1965,” in Lessons and Legacies VI: New Currents in Holocaust Research, ed. Jeffrey Diefen-
dorf (Evanston, IL: Northwestern University Press, 2004), 352–72.
52. See Pendas, “Truth and Its Consequences,” 34–36.
needs of the criminal apparatus, to show individual initiative and interest in

the crime.53
Arendt notes that no one in “high position” ever bothered to “give instruc-
tions” for the “details” of individual torture and abuse that came to light in
the Auschwitz trial:
Thus the doubtful legal ruling of all Nazi-criminal trials that they were
“ordinary criminal trials” and that the accused were not distinct from other
criminals for once came true—more true, perhaps, than anybody would
have cared to know. Innumerable individual crimes, one more horrible than
the next, surrounded and created the atmosphere of the gigantic crime of
extermination. And it was these “circumstances”—if this is the name for
something that lacks a word in any language—and the “little men” respon-
sible for and guilty of them, not the state crime and not the gentlemen in
“exalted” positions, that were fully illuminated in the Auschwitz trial. (intro.
to Naumann, xxiv)54
Thus, for Arendt, the Auschwitz trial becomes something less than a Holo-
caust trial in any strict sense. The defendants were nothing more than “para-
sites and profiteers,” pursuing their own horrible agendas, thriving off of
“‘great’ criminals,” enabled but not created by the systematic criminality of
the Nazi regime (intro. to Naumann, xi, xxviii). Arendt stresses, as did the
prosecution, it might be added, the fact that there were strict rules against
random acts of violence or brutality in Auschwitz, regulations that were reg-
ularly violated to be sure, but which nonetheless officially prohibited the sorts
of behavior for which many of the defendants in Frankfurt were on trial.55
While it is true, she says, that the defendants were not sadists “in the clinical
sense,” she nonetheless maintains that “the clinical normality of the defen-
dants notwithstanding, the chief human factor in Auschwitz was sadism, and
sadism is basically sexual” (intro. to Naumann, xxvii–xxviii). The generally
jovial nature of defendants throughout the trial, she suspects, “reflects the sweet
remembrance of great sexual pleasure” (xxviii). According to Arendt, those
who did the direct killing in Auschwitz were motivated largely by the perverse
personal pleasure they derived from murder.
53. On excessive acts see Jörg Friedrich, Die kalte Amnestie: NS-Täter in der Bundesrepublik,
rev. ed. (Munich: Piper, 1994), 350–59.
54. For a detailed treatment of the tension between excessive acts and genocide in the Ausch-
witz trial see Pendas, Frankfurt Auschwitz Trial, 245–48.
55. On this point see Rebecca Wittmann, “Indicting Auschwitz? The Paradox of the Frankfurt
Auschwitz Trial,” German History 21 (2003): 505–32.
Devin O. Pendas 97
In other words, while Eichmann’s evil may have been banal, unmotivated,
and thoughtless, the evil of the defendants in the Auschwitz trial was not. Nor
was it radical, in the sense, really, of reflecting the totalitarian goal of total
human superfluity. Rather, it was ordinary. The defendants in the Auschwitz
trial were no different from the run-of-the-mill sex offender. True, administra-
tive massacre had given them the opportunity to vent their perverted urges,
but, in that regard, it was only a context for individual, thought-full, if perverse,
willed action. This is what Dana Villa means when he points out that for Arendt,
Holocaust perpetrators encompassed not only desk killers like Eichmann but
also “fanatics, sadists, thugs and brutes.”56 If one reads Arendt’s account of
Eichmann primarily as a psychological analysis of his character, as Villa does,
this poses few problems. After all, there were a lot of perpetrators in the Holo-
caust, and it is not unreasonable to expect that at an individual psychological
level, they differed considerably.
Yet if one reads Arendt as a more systematic and social theoretic thinker
in the manner I have outlined above, then this account of the individual perpe-
trators in Auschwitz becomes more problematic. If the term banal evil refers to
more than Eichmann’s personal psychology, if it is one manifestation of the rise
of mass society and the totalitarian project of making humans superfluous, then
it takes on specific social-structural dimensions that extend beyond the char-
acter of Eichmann the man and becomes an objective feature (at least poten-
tially) of the world itself. If this is true, then Arendt’s insistence that the direct
killers in Auschwitz were sexual sadists, and not banal evil murderers, con-
tradicts her broader analysis of totalitarianism and modernity. On her read-
ing, the “satanic” brutality of the Auschwitz defendants—and she conflates
them as a group in ways that are indefensible (e.g., Robert Mulka, the camp
adjutant who was little more than a clerk, and Wilhelm Boger, the most noto-
rious torturer in Auschwitz, are treated as being identical in this regard)—
renders them in fact “ordinary” in a way that Eichmann was not. Ironically,
this ordinariness is anything but banal in Arendt’s sense. While it is true that
some of these defendants (Boger, Franz Hoffmann, Oswald Kaduk) do fit the
mold of the sadistic brute, none of them deserves any more the “satanic gran-
deur” that she grants them here than did Eichmann, to whom she so rightly
denied such dubious honors.
There are two reasons for this. First, as Arendt herself noted at the start of
her Auschwitz essay, these defendants were in many respects classic totalitarian
subjects, obeying the rules of convention, not thinking of the consequences of
56. Villa, Politics, Philosophy, Terror, 54.

their actions, not engaging in inner dialogue. Therefore the simple fact that
some of the killing in Auschwitz was done barehanded, as it were, does not
necessarily make it any less banal, if by that one means not thought through
in terms of one’s own inner moral voice. It does not make individual evil motives,
much less sexual ones, any more necessary for the killing than was true for
Eichmann. Boger may have been a sadist but not every murder he committed,
indeed not even every act of torture, was necessarily “caused” by his sadism.
The superior bureaucracy ordered many of them, contrary to what Arendt
says.57 Other defendants, like Perry Broad or Hans Stark, also killed directly
and on their own initiative, without being in the least bit sadistic in their per-
sonality structures.
If one looks closely, no clear correlation exists between actual killing
and sadism among the Auschwitz defendants. As the witness Ella Lingens
put it during the trial: “All of them [the perpetrators] were good one time . . .
but bad 999,000 times. Among the SS men, only 5–10% were sadists, psy-
chotic criminals [Triebverbrecher] in the clinical sense, where one could say
the guilty parties were those who placed these men there. The rest were per-
fectly capable of deciding between good and evil.”58 In the case of Stark,
for example, the court itself agreed with a witness who had said that Stark
“was admittedly basically decent [anständig], but he stood under the unhealthy
influence of Nazi ideology.”59 In Arendt’s own terminology, he was not sadis-
tic but thoughtless, having surrendered his own capacity for judgment to the
broader totalitarian ideology of Nazism. Yet Stark was convicted, among other
charges, of having participated in executing a woman and her two children,
in the absence of a bureaucratic order to do so.60 “The defendant Stark knew
that the small children, innocent in the absence of a sentence of death, were
only killed because they were members of the Polish people and therefore—
according to Nazi views—were members of an inferior people.”61 Yet Stark
was no committed ideologue, at least on the court’s view. He was sentenced
as a juvenile, since he had been underage for much of his time in Auschwitz.
In this, he very much resembled Eichmann in being “perfectly incapable of
telling right from wrong” (EJ, 26).
57. See Balzer and Renz, Urteil, 152.

58. “Kinder wurden lebendig verbrannt: Der Zufall entschied in Auschwitz über Leben und
Tod,” Frankfurter Neue Presse, March 3, 1964.
59. Balzer and Renz, Urteil, 191.
60. The court could not determine beyond a doubt whether Stark had actually pulled the trigger
in this case, though it did note that “much speaks for [this conclusion]” (ibid., 178).
61. Ibid., 179.
Devin O. Pendas 99
Second, not all—and certainly none of the most important—killings in

Auschwitz were such single-handed, self-initiated killings. Nearly all of the
defendants were charged, as Arendt notes, with “mass murder.” And it is of
course that which marks Auschwitz indelibly. The point of Auschwitz was
not torture; it was genocide, as Arendt herself well knew. “Torture, to be sure,
is an essential feature of the whole totalitarian police and judiciary appara-
tus” (OT, 453). Yet Arendt argues that there were two kinds of torture under
totalitarianism, “rationally conducted torture” and “irrational, sadistic” tor-
ture. The latter type she describes as “a concession of the regime to its crim-
inal and abnormal elements, who were thus rewarded for services rendered”
(OT, 453). This is fully consonant with her argument that Auschwitz perpe-
trators were little more than sexual sadists. Yet as she herself had pointed out,
when the SS took over the concentration camps, “the old spontaneous bestial-
ity gave way to an absolutely cold and systematic destruction of human bodies,
calculated to destroy human dignity; death was avoided or postponed indefi-
nitely. The camps were no longer amusement parks for beasts in human form,
that is, for men who really belonged in mental institutions and prisons; the
reverse became true: they were turned into ‘drill grounds,’ on which perfectly
normal men were trained to be full-fledged members of the SS” (OT, 454).
What Arendt forgets in reducing Auschwitz perpetrators to monstrous
sadists, for whom Auschwitz was simply an “amusement park,” is her own
earlier insight that torture was not itself merely incidental to genocide but
its necessary concomitant. To kill an entire people, as Arendt had likewise
pointed out in The Origins of Totalitarianism, it is first necessary to render
them less than human, in both the eyes of their killers and their own. The
systematic torture practiced in Auschwitz was no more a product of individ-
ual sadism than were the systematic gassings, all the more so for the camp
having been the pinnacle of an SS camp system that Arendt argued was dis-
tinct from the more arbitrarily sadistic early camps. It was part of a systematic
project of dehumanization, which Arendt identified as being a central compo-
nent of the project of rendering human beings superfluous (OT, 454–57).
Arendt of all people should not have allowed the occasional absence in Ausch-
witz of a signed order from Berlin to hide that fact from her. One is tempted to
say that she gets the sequence exactly reversed when she says it was the indi-
vidual killings that “created the atmosphere of the gigantic crime of extermi-
nation” (intro. to Naumann, xxiv). But neither was it the case that extermina-
tion created an atmosphere of brutal individual murders, an interpretation
perhaps more consonant with her earlier analysis. Rather, in Auschwitz, the two
were different facets of the same crime.
By insisting on the ordinary perversity of the Auschwitz trial defendants,

Arendt transforms them into precisely the kinds of monsters that she reproached
Gideon Hausner for conjuring in the Eichmann trial. Arendt’s justification
for her alchemy is that these men were, she insists, of a different species from
Eichmann: the “worst elements in the population,” she calls them (intro. to
Naumann, xxvii). They were, on this reading, classic representatives of the
“mob” (OT, 106–17). To call them monsters would then be merely accurate.
Subsequent empirical research has revealed this thesis to be untenable, how-
ever. Holocaust perpetrators, both direct and indirect, came from all walks
of life, social classes, educational backgrounds, and age cohorts.62 And while
it is true that the defendants in the Auschwitz trial were primarily members of
the petite bourgeoisie, this is in fact more indicative of the German courts’
class prejudices than it is of the composition of the SS personnel in Auschwitz.63
Moreover, even if the defendants were in many ways classically petit bour-
geois, this hardly made them “the residue of all classes . . . [who] always shout
for the ‘strong man,’ the ‘great leader,’” which is how Arendt defines the mob
(OT, 107). Similarly, Arendt’s contention that thugs and sadists predominated
among the direct perpetrators has not been borne out by subsequent empirical
research.64 Indeed, one observer has noted an “emerging consensus” among
historians of the Holocaust that perpetrators were motivated by a combina-
tion of conformism and ideology and that, as another historian insists, “the
blend of motives differed not only from situation to situation but from soldier
to soldier or policeman to policeman.”65 Sadism appears to have been a periph-
eral motive for most perpetrators.
62. Gerhard Paul, “Von Psychopathen, Technokraten des Terrors und ‘ganz gewöhnlichen’
Deutschen,” in Die Täter der Shoah: Fanatische Nationalsozialisten oder ganz normale Deutsche?
ed. Gerhard Paul (Göttingen: Wallstein, 2002), 13–90.
63. See Karin Orth, Die Konzentrationslager-SS: Sozialstrukturelle Analysen and biogra-
phische Studien (Göttingen: Wallstein, 2000). This is typical of the class bias in Nazi prosecutions
that Kerstin Freudiger identifies in Die juristische Aufarbeitung von NS-Verbrechen (Tübingen:
Mohr Siebeck, 2002).
64. Christopher R. Browning, “German Killers: Behavior and Motivation in Light of New Evi-
dence,” in Nazi Policy, 143–75.
65. George C. Browder, “Perpetrator Character and Motivation: An Emerging Consensus?” Holo-
caust and Genocide Studies 17 (2003): 480–97. The quotation is from Neil Gregor, “Nazism—a
Political Religion? Rethinking the Voluntarist Turn,” in Nazism, War, and Genocide: Essays in Hon-
our of Jeremy Noakes, ed. Neil Gregor (Exeter: University of Exeter Press, 2005), 15. For the most
compelling account of perpetrator motivation at the ground level see Christopher R. Browning, Ordi-
nary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York: Asher, 1992).
Even Daniel Goldhagen, who disagrees with Browning on almost everything, argues that sadism per
se was not the driving motivation for ordinary Holocaust perpetrators—ideology was (Hitler’s Willing
Executioners: Ordinary Germans and the Holocaust [New York: Knopf, 1996]).
Devin O. Pendas 101
Even more significant, in this context, is the fact that a careful examina-
tion of the Auschwitz trial defendants themselves likewise reveals that sadists
were in the minority; that ideology was a constant, if tacit, factor; and that
individual motivations varied enormously. If one examines these defendants
more closely than Arendt did, it turns out that each of them could plausibly
insist on having had various motives, none of them necessarily base. Under
German law, perpetrators of murder are those who have committed homi-
cide on the basis of their own, internalized motives; accomplices are those
who merely complied with the malicious motives of others. In the final ver-
dict of the Auschwitz trial, exactly half of the defendants were convicted as
perpetrators, meaning in effect that at most, the court could prove that half
the defendants were found to have operated on the basis of internalized crimi-
nal motives. In most cases, these motives were ideological, not personal,
much less sadistic. Consequently, at least as far as the court was concerned,
one could not make a plausible general assertion about the motivational struc-
ture of the Auschwitz defendants as such, nor could one consider the bulk
of the defendants to have been sadists. In this context, Arendt’s category of
banal evil would be far more illuminating as a description of the defendants
than the all-too-easy description of them as sexual sadists. To the extent that
banal evil describes not simply a lapse or error of ethical judgment but its
catastrophic absence, it seems a more apt category for these defendants than
sadism. From a psychological and ethical perspective the organization of the
actual killing was hardly different from the organization of its planning; it
proceeded with formal indifference to the motives of the individuals carry-
ing it out. Killing in Auschwitz was only more brutal, not less banal, in Arendt’s
sense, than Eichmann’s.
The Banality of Justice

For Arendt to imply that the banality of evil applies mainly to the organizers,
not the implementers, of the Final Solution seems mistaken. The question
remains as to what difference this error on Arendt’s part makes, either to her
own analysis of evil or to the broader problem of justice she sought to ana-
lyze. What does the banality of the evil of even the most direct and brutal of
Holocaust perpetrators imply for justice? Can trials ever hope to render jus-
tice or speak truth with respect to “administrative massacres”? In other words,
are the antinomies and paradoxes analyzed here—individual responsibility
for mass crimes, personal motivation in bureaucratic and military organiza-
tions that render it irrelevant, the complex and perhaps contradictory nature
of evil—not characteristic of the law itself, rather than idiosyncratic elements
of Arendt’s thinking? Perhaps Arendt’s thought simply registers the boundar-

ies and internal contradictions of the legal form in confrontation with state-
organized genocide?
Despite her occasional trepidation and misgivings about the details of
such trials and their potential for misuse, once Jaspers convinced her of the
value of viewing Nazi policy as a crime, Arendt never wavered from her
commitment to seeing them carried out.66 Even in describing her disappoint-
ment with the Eichmann verdict, she did so in terms that made it perfectly
clear that the problem lay not with the trial as such but with a failure of nerve
at its end. “Instead of confessing that one has to mete out justice even when
the law leaves one in the lurch, [the Eichmann trial judges] have presented
things in such a way that may just pass muster legally but don’t reflect the
truth at all.”67 Subsequently, though, Arendt changed her mind on this point
as well, arguing that the Eichmann judgment expressed at least one essential
“truth” in treating Eichmann primarily as an accessory; namely, that in mass
crimes like the Holocaust, aiding and abetting takes on a new meaning, since,
as the Israeli court put it, “the degree of responsibility increases as we draw
further away from the man who uses the fatal instrument with his own hands”
(EJ, 247).68
Her conclusions about the Auschwitz trial both parallel and diverge
from this.
Had the judge been wise as Solomon and the court in possession of the
“definitive yardstick” that could put the unprecedented crime of our cen-
tury into categories and paragraphs to help achieve the little that human
justice is capable of, it still would be more than doubtful that “the truth, the
whole truth” . . . could have appeared. No generality—and what is truth if it
is not general?—can as yet dam up the chaotic flood of senseless atrocities
into which one must submerge oneself in order to realize what happens
when men say that “everything is possible” and not merely that everything
is permitted. (intro. to Naumann, xxix)
Rather than whole truth, one gets moments, and these alone are the means to
articulate the chaos of evil that was Auschwitz. This parallels her evaluation
of the Eichmann judgment, in that the “truth” that emerged in Jerusalem, the
66. See Arendt and Jaspers, Correspondence, 54, 62.

67. Ibid., 467.
68. In this regard, West German courts for the most part diverged from their Israeli counter-
parts, tending to find that the degree of responsibility diminished as the distance increased between
the actual killing and the given defendant. See, e.g., Freudiger, Juristische Aufarbeitung, 262–64.
Devin O. Pendas 103
truth of distant responsibility and banal evil, was itself only a moment of truth,
not its entirety. Yet it diverges because the moment of truth that emerged in
the Auschwitz trial—the “chaotic flood of senseless atrocities”—was rather
different from that in the Eichmann trial. Since both trials obviously con-
cerned the same historical event, the partial truths that they disclosed point
to the ways in which the Holocaust was, for Arendt, morally, if not organiza-
tionally, chaotic. When viewed in terms of the legal and moral reproach to the
individual for helping kill millions of other humans, the Holocaust loses that
unitary and systematic character it possesses when viewed through the lens
of causation. It was, in effect, composed of multiple levels of evil: radical evil
in its political project, banal evil in the psychology of its planning, and ordi-
nary evil in its implementation.
But can this moral perspective be reconciled with the causal? Do the
multiple levels of evil compose a totality, or are they part of some larger sys-
tem? At times, Arendt seems to want to treat these dimensions of evil as dis-
tinct. For instance, on her account, radical evil is specific to the totalitarian
experiment in remaking humanity by unmaking humans, whereas banal evil,
qua thoughtlessness, could be read as being both far broader, symptomatic of
a certain kind of participant in any number of terroristic state policies, or far
narrower, as a gloss on the specific psychological character of Eichmann. At
other moments, Arendt seems to argue that the relationship between these forms
of evil is tangential and even coincidental, as when she argues that sadists
opportunistically exploited totalitarian mass murder to satisfy their own sex-
ual deviance.
Yet despite her inclination to segregate the varieties of evil, Arendt
clearly recognized that in the context of Nazi genocide they entered into
some kind of systematic relationship. Though the precise nature of that rela-
tionship seems to have been less clear to her, the logic of her argument gives
causal priority to the political level of radical evil. While both banal and
ordinary evil can and do exist outside the context of radical evil, it is only the
latter that can lead to genocide as part of the totalitarian project. The camps
were, she notes, “the true central institution of totalitarian organizational
power,” where “total domination” could be pursued to its ruthless perfection.
“The camps are meant not only to exterminate people and degrade human
beings, but also serve the ghastly experiment of eliminating, under scientifi-
cally controlled conditions, spontaneity itself as an expression of human behav-
ior and of transforming the human personality into a mere thing” (OT, 438).
Clearly, here, the totalitarian experiment is the driving force behind the geno-
cide. However, when confronted with the brutality of what she mistook for
ordinary evil in Auschwitz itself, she reversed this causal sequence, arguing (to
repeat) that the brutality of individual killing “created the atmosphere of
the gigantic crime of extermination” (intro. to Naumann, xxix). Sadism here
appears to drive extermination.
The resolution of this contradiction in Arendt’s account of causation
in the Holocaust lies in the indirect moral relationship she sees between the
totalitarian experiment and killing on the ground. If the responsibility for
administrative massacre increases as one moves away from the actual kill-
ing, this can only be because the responsibility at the point of contact is no
longer connected with the entirety or systematicity of the event as a whole.
Otherwise, greater responsibility at a distance would necessarily imply dimin-
ished responsibility for the actual killers, not a claim Arendt would have wanted
to make, though common enough among defense counsel in the Auschwitz
trial. On Arendt’s account, for direct killers to be held fully responsible, their
actions cannot have been overly dependent on the indirect killers. Eichmann,
in effect, can only have provided an opportunity for the sadists on trial in Frank-
furt to commit murder. Each was clearly indispensable to the Holocaust, yet
their individual actions remained relatively autonomous. Thus her portrait of
the Holocaust is one of several discrete and only indistinctly related events,
where hubris initiated, thoughtlessness organized, and sadism implemented
the genocide. This allows her to preserve the moral autonomy of the discrete
varieties of evil while recognizing their causal interconnectedness in the con-
text of genocide.
Her approach is reminiscent of what Clifford Geertz once referred to,
under admittedly very different circumstances, as the stratigraphic model of
human nature: “In this conception, man is a composite of ‘levels,’ each super-
imposed upon those beneath it and underpinning those above it.”69 The value
of such an approach, Geertz noted, was that it allowed one to preserve the
independence and significance of each level, without having to thereby deny
the significance or independence of any of the others. Psychology did not
trump biology but neither did biology eliminate culture. One problem of such
an approach, however, is the difficulty of reconnecting these “levels” once
they have been separated.70 Something similar plagues what might be called
Arendt’s stratigraphic model of evil as comprising radical, banal, and ordi-
69. Clifford Geertz, “The Impact of the Concept of Culture on the Concept of Man,” in The
Interpretation of Cultures (New York: Basic, 1973), 37.
70. “Once culture, psyche, society, and organism have been converted into separate scientific
‘levels,’ complete and autonomous in themselves, it is very hard to bring them back together again”
(ibid., 41).
Devin O. Pendas 105
nary evils.71 By defining the operative evil at work in each “level” of the Holo-
caust according to distinct principles (both structural and psychological),
Arendt fragments an exterminatory process that can be understood only as a
totality. The separate parts of the Holocaust do not, taken separately, consti-
tute it as a whole.
Arendt’s effort to separate the totalitarian experiment in unmaking
humans (radical evil) from the psychological dispositions of its perpetrators
(banal and ordinary evil) solves some problems while creating new ones.
On the one hand, it does preserve the moral and, significantly, the juridical
autonomy of these levels. It also makes clear the complexity of moving from
radical to banal or ordinary evil. While Arendt was quite explicit that geno-
cide was a deliberate project within totalitarianism, one that in important
ways expressed its essential nature, she was not unaware of the evolutionary
and often improvisatory development of Nazi anti-Jewish policy up to and
including the move to physical annihilation.72 Consequently, she was care-
ful not to imply that one could directly derive the motivations of mid- and
low-level perpetrators from the rather abstract, philosophical interpretation
of genocide as a project for remaking humanity. If Auschwitz came at the end
of a twisted road, then mapping the totalitarian experiment directly onto the
psychological motivations of its implementers becomes much harder, since
the project itself was something of a moving target.73 By treating the varie-
ties of evil as distinct, she did not have to collapse the facets of the Holocaust
into one another.
On the other hand, however, Arendt’s stratigraphic solution to these
problems comes at a price. To begin with, it separates the nature of the regime
from the psychology of its minions. As such, it renders whatever moments of
truth emerge in Holocaust trials less illuminating than they might otherwise
have been. For example, while it is true that the Holocaust was the result
of an emerging radicalization of Nazi policy, as Christopher R. Browning
has recently made clear, he also notes that “the commitment to some kind of
71. I should note that this is in no way Arendt’s own characterization of her theory; neverthe-
less, for reasons I have already outlined, it is not an unfair extrapolation from what she herself says
about evil.
72. This is apparent in Arendt’s own account of the Final Solution in Eichmann in Jerusalem
and is now amply confirmed in Christopher R. Browning, The Origins of the Final Solution: The
Evolution of Nazi Jewish Policy, September 1939–March 1942 (Lincoln: University of Nebraska
Press, 2004). I should like to thank one of the anonymous reviewers for New German Critique for
pointing out this connection.
73. Karl A. Schleunes, The Twisted Road to Auschwitz: Nazi Policy towards the Jews, 1933–1939
(Urbana: University of Illinois Press, 1970).
final solution permeated the entire regime, and acceptance of such a priority
on the part of the regime characterized much of the German population at
large.”74 Even moving targets can be aimed at collectively. That is precisely the
point of a concept like banal evil; all too often in modern societies, it is the
political circumstances that provide the moral content for thoughtless minds.
Second, and more important, Arendt’s effort to preserve the moral
autonomy of the distinct categories of evil by stressing their motivational
structures paradoxically reinforces aspects of West German Holocaust trials
that contradict what she declared to be the most essential truth of the Eich-
mann trial: the increased responsibility of indirect perpetrators. The West
German trials reached the exact opposite conclusion and did so on the basis
of a logic of motivation strikingly similar to Arendt’s. Under German law,
perpetrators are distinguished from accomplices largely by their subjective
orientation toward the crime in question. In Holocaust cases, direct killers
were more likely to be convicted as perpetrators than indirect ones because
they were more likely to have been found to have evinced a so-called perpe-
trator’s will. (The killing itself was held to be symptomatic of the psycho-
logical disposition.) The kind of sadism that Arendt diagnosed among the
Auschwitz trial defendants constituted perhaps the strongest possible indi-
cation of a perpetrator’s will. Since perpetrators generally received harsher
sentences than accomplices, individual excesses, with a few exceptions, were
punished more severely than genocide.75 In other words, once motivational dif-
ferences become legal ones, the endeavor to preserve the moral autonomy of
different types of perpetrators can be self-defeating, if not perverse, since
motivation and responsibility do not necessarily correspond exactly.
Thus it seems that many of the difficulties that emerge in Arendt’s theory
of evil are those of the law itself. This is hardly surprising, given Arendt’s
admonition that, without a “law against hostes humanis generis,” the ordinary
legal tools used “against murderers and similar criminals” would have to be
pressed into service for “things that cannot even be adequately represented
either in legal terms or in political terms.”76 Although clearly exacerbated by
the subjective character of German criminal law, on a very fundamental level,
the individuating impulse at the core of the Western legal tradition comes up
against its limits in confronting state-sponsored genocide.77 The criminal law
74. Browning, Origins of the Final Solution, 425.

75. On the distinction between perpetrators and accomplices in German law see Pendas, Frank-
furt Auschwitz Trial, 61–71.
76. Arendt and Jaspers, Correspondence, 417.
77. Pendas, Frankfurt Auschwitz Trial, 302–5.
Devin O. Pendas 107
has been developed to hold individuals accountable, not collectivities. When

confronted with crimes that, again as Arendt noted, could be committed only
by organized groups, its conceptual and moral categories cannot but prove
themselves blunt instruments at best.
Arendt was wrestling with a conception of justice, that of the law, which
is, in the face of organized mass atrocity, itself “banal.” And for all her pro-
digious effort, she was unable to fully escape this banality. I use banal here
both in Arendt’s technical sense, as thoughtlessness, and in the mundane
sense of commonplace and trite. A justice that cannot grasp and punish both
the organizers and the implementers of the Holocaust as part of the same total
social process—each bearing morally and legally equivalent, if functionally
distinct, guilt—cannot but be banal. This problem was already identified at
the time of the Auschwitz trial by one of its chief organizers, Fritz Bauer, the
Hessian attorney general. He wrote: “The courts made the attempt to dissolve
what happened, e.g., the mass murder of millions in the extermination camps,
into episodes, for instance, the murder of A by X, of B by Y, or of C by Z.
One wanted to prove the individual actions of the defendants in detail. Such a
way of proceeding distorts history, which was not a sum of individual events.”78
Such a justice is thoughtless, because it is incapable of judging one crime save
in the guise of two. And it is trite because it reduces the totality of systematic
genocide to less than the sum of its parts, since the two could not possibly be
added together. Whereas in reality, as I have already indicated, the Holocaust
was, if anything, greater than the sum of its parts. Sundering these, as the law
does and as Arendt’s stratigraphic understanding of evil does, radically under-
estimates this fact.
Arendt explicitly accepted these limitations as the price of justice. This
is the point of her insistence that, despite its manifestly “unmodern” charac-
ter, the criminal law could and should be used to hold individuals account-
able, to name the names of the murderers (EJ, 294–96). Pragmatically, this
was eminently justifiable. In the 1960s there were no viable alternatives to
ordinary criminal trials if Holocaust perpetrators were still to be punished.
Much to Arendt’s regret, the older international or Allied courts had long
since ceased to operate, and new ones had not yet been created (and would
not be for many decades). Even had such international courts existed, it is by
no means clear that they could have avoided the difficulties posed by indi-
vidual accountability for collective crimes. Certainly, Arendt thought they
78. Fritz Bauer, “Im Namen des Volkes: Die strafrechtliche Bewältigung der Vergangenheit,” in
Die Humanität der Rechtsordnung: Ausgewählte Schriften, ed. Joachim Perels and Irmtrud Wojak
(Frankfurt am Main: Campus, 1998), 83.
could not. After all, she had argued that it would be impossible to create a
“juridical procedure” on the basis of any theory of social or political deter-
minism, that is, on the basis of any theory of collective action or responsibil-
ity (EJ, 290). The individuating character of the criminal law remained, for
Arendt, a morally necessary fiction.
To be sure, there have been attempts to evade this dilemma. The most
notable of these was the Nuremberg prosecution and conviction of a number
of Nazi organizations as per se criminal.79 In effect, the Nuremberg verdict
declared membership in certain Nazi organizations to be criminal in and of
itself, provided it could be proved in subsequent trials that the individual in
question had joined voluntarily and had known of the organization’s crimi-
nal character at the time. This approach to collective guilt was highly contro-
versial and created enormous debate even among the judges at Nuremberg.
It could be argued that, if individuating law is “unmodern,” this model of
collective guilt was regressive and premodern.80 Although the original pro-
posal to further weaken these limited protections for individual defendants
by shifting the burden of proof to the defense was dropped in the Nuremberg
verdict, clearly criminalizing mere membership in a group without evidence
of any concrete wrongdoing by the individual defendant marked a noticeable
break with the trend toward greater individuation of responsibility and pro-
tection of the due process rights of defendants noticeable in modern legal sys-
tems since the eighteenth century.81 Moreover, the attempt to actually imple-
ment this decision proved in practice to be a fiasco. Whether this was mainly
due to difficulties of legal principle or to more pragmatic problems of under-
staffing in the courts assigned to prosecute such cases (and it was likely both),
the fact remains that this precedent has remained without imitators in the
ensuing sixty years.
79. The best treatment of these prosecutions remains Henri Meyrowitz, La répression par les
Tribunaux Allemands des Crime contre l’Humanité et de l’appartenance à une organisation crim-
inelle en application de la loi no. 10 du Conseil de Contrôle Allié (Paris: Librarie Générale de
Droit et de Jurisprudence, 1960); but see also Bradley F. Smith, Reaching Judgment at Nuremberg
(New York: Basic, 1977), 156–70; Eugene Davidson, The Trial of the Germans: An Account of the
Twenty-Two Defendants before the International Military Tribunal at Nuremberg (New York:
Collier, 1966), 553–79; and Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal
Memoir (New York: Knopf, 1992), 280–85, 555–59.
80. On the premodern character of the prosecution of criminal organizations at Nuremberg,
specifically on the parallel with German medieval law condemning the inhabitants of a town where
a lawbreaker took refuge, see Gerhard Rauschenbach, Der Nürnberger Prozess gegen die Organi-
sationen (Bonn: Röhrscheid, 1954), 18.
81. For the original proposal and the court’s decision not to shift the burden of proof see Smith,
Reaching Judgment at Nuremberg, 163.
Devin O. Pendas 109
In the end, then, it seems that we cannot escape the norm of individual
responsibility at the heart of the Western system of criminal justice, despite
the fact that this norm finds its limits, becomes banal, in the face of adminis-
trative massacre. Arendt’s theory of evil expresses these limits. It is an attempt
to recognize both the expansiveness of evil and its necessary linkage with
individuals as moral agents. If Arendt’s theory of evil is ultimately less than
fully satisfying, that is because justice itself falls short when confronted with
an evil as all encompassing and multidimensional as that of the Holocaust.

Pendas - El Juicio A Eichmann, Arendt y El Juicio de Auschwitz

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Eichmann in Jerusalem, Arendt in Frankfurt:

The Eichmann Trial, the Auschwitz Trial,

Hannah Arendt’s Eichmann in Jerusalem retains its importance largely because

6. Arendt and Jaspers, Correspondence, 417.

No guiding principle of behavior, taken itself from the realm of human

18. Arendt, Life of the Mind, 418.

this thoughtless, unmotivated evil is banal in that it is mundane and ordinary

motivational structure whatsoever.27 And Jürgen Habermas has argued that

such theories, is an extremely unmodern, not to say outmoded, institution” (EJ,

This is the foundation of the great insight of Arendt’s notion of banal

Auschwitz and the Problem of Direct Killing

36. See her discussion of SS torture in OT, 453–54.

humanity, which German courts had used—reluctantly—to prosecute Nazi

This indeed points to a central difficulty of the trial, in Arendt’s view,

needs of the criminal apparatus, to show individual initiative and interest in

56. Villa, Politics, Philosophy, Terror, 54.

57. See Balzer and Renz, Urteil, 152.

Second, not all—and certainly none of the most important—killings in

By insisting on the ordinary perversity of the Auschwitz trial defendants,

The Banality of Justice

of Arendt’s thinking? Perhaps Arendt’s thought simply registers the boundar-

66. See Arendt and Jaspers, Correspondence, 54, 62.

74. Browning, Origins of the Final Solution, 425.

has been developed to hold individuals accountable, not collectivities. When

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