“The common element connecting art and politics is that they are both phenomena of the public world. What mediates the conflict between the artist and the man of action is the cultura animi, that is, a mind so trained and cultivated that it can be trusted to tend and take care of the world of appearances whose criterion is beauty.”
“The Crisis in Culture,” in Between Past and Future (1993 ) 218-219
The survival of culture is not assured. In her exploration of culture and crisis, Hannah Arendt distinguishes between objects that are produced for use and those that are produced as art in order to endure. Consumptive life is a part of leisure, a “necessity” of life, whereas art, as Arendt often discusses, partakes in the humanistic task of cultivating a world that doesn’t collapse all distinctions – among people, among realms of experiences, among spaces of collective encounter, and among the ways in which we see violence whether in the hands of fellow human beings or state authorities. This note about violence is not a theme in Arendt’s “The Crisis in Culture.” But it very well could be, and as I’ll assert here, it should be. This is part of our “crisis of culture,” after all, a dilemma for which art may offer some chance of cultivating a humanistic sensibility that is much needed in light of persistent violence within liberal democratic republics today.
“And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations - as though you and your superiors had any right to determine who should and who should not inhabit the world - we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang."
-- Hannah Arendt, Eichmann in Jerusalem
The closing paragraphs of the epilogue of Eichmann in Jerusalem reformulate Arendt’s final argument that the judges of the tribunal should have delivered if they had dared to declare the definitive reason for which they sent Eichmann to the gallows. This reason has retribution at its core: Eichmann and his kind did not want to share the world with us, and he claimed the right to decide who should and should not inhabit the earth. In that case, we decided we did not want to share the world with him.
Last Sunday, March 9, Roger Berkowitz and Walter Russell Mead sat down with SCOTUSblog founder and publisher, Tom Goldstein, as part of the Arendt Center’s “Blogging and the New Public Intellectual” series in New York City. The series engages in ongoing discussion with the nation’s leading bloggers in an attempt to analyze this form of political and cultural writing and its impact on modern society.
As a litigator, Goldstein has argued 31 cases before the Supreme Court, and teaches at Harvard Law School. He and Amy Howe founded the SCOTUSblog in 2002, which covers the Supreme Court and all of its cases in detail. Goldstein related the evolution of the now highly respected and heavily trafficked blog:
There is a lot less traditional press coverage creating the opportunity for more blogging. Just to play out the example, five years into the blog’s history, blogging was still regarded as ‘ehhh.’ By year eight or nine, the press corps was very actively citing us and others as experts in the field. At year twelve, we’re regarded as the competition.
With the success and reputation of the blog, however, has come responsibility. Walter Russell Mead noted that the more people listen to you, the less you can say. Goldstein agreed:
If I say something in the blog about the Supreme Court, a lot of people are going to think of it as true. Maybe they shouldn’t. If they knew me better, they probably wouldn’t. But, if I say, “Someone is going to retire.” or “This case was wrongly decided.” the Supreme Court press corps pays enormous attention to the blog…There is a kind of cadre of readership, an echoing effect out from the blog. Something that gets said on the blog becomes conventional wisdom. And that means that I have to be more careful.
Goldstein also reflected on the way that trolls and those who comment on blogs have made him lose some of his faith in humanity. For many years SCOTUSblog struggled to maintain a communal feeling through comments on blog posts, but they finally abandoned the effort in the face of racist, slanderous, and hateful trolls. As Goldstein said, "What people are willing to say when anonymous is extraordinary.”
Watch video of the discussion here.
This post was originally published on December 2, 2011.
Eight years ago this week, Michael Ignatieff accepted the Hannah Arendt Prize in Bremen. Ignatieff's acceptance speech spoke of Hannah Arendt as an example, as an intellectual whose work and persona had inspired and guided him on his own course. As is appropriate, he praises Arendt and also challenges her, finding in his disagreements an intense respect for the provocation and courage of her thinking. Arendt inspires, Ignatieff concludes, because she is skeptical, dispassionate, and free. His speech is one of the best accounts of what makes Arendt so compelling as a thinker. I recommend it to you as this week’s Weekend read.
What most strikes Ignatieff about Arendt is her intellectual authority. He writes:
She was an example, first, because she created her own authority. She arrived in New York as a penniless refugee and by her death was widely respected as a public intellectual. She achieved authority by the power of thought. By authority, I mean that she was listened to, respected and widely regarded as a wise woman. I also mean that her influence has survived her and that the argument about her work continues a generation after her death.
Arendt's authority flows from commitment to ideas, to, in Ignatieff's words, an "intellectual life, that was free of any alliance with power, ideology, religion or coercive force." Neither a liberal nor a conservative, Arendt sought simply to think, and rethink, what we are doing. Again, Ignatieff characterizes her beautifully:
She defended a life of the mind connected to the idea of persuasion: the free changing of a mind in interaction with a logical argument or a claim about the world grounded in evident or falsifiable facts. She was attentive to facts, understood the discipline they impose on thought, appreciated the moral code of empirical scholarship, the proposition that if the theory does not fit the facts, the theory must be changed. This is a moral idea simply because it requires people to admit that they are wrong, and since nobody likes to, everyone can find a morally dubious way to avoid doing so. Facts are stubborn things, and intellectual life has no essential morality unless it submits arguments to the discipline of such facts as we can discover about ourselves and the world we live in.
Arendt's insistence on facts beyond ideology and politics made her old-fashioned to some. While everyone has a right to their opinion, she insisted that facts are sacrosanct, and no one has a right to change facts. Fidelity to facts meant for her a fidelity to living in a world with others, a shared world, one in which our disagreements cannot include disagreements over the unquestionable factual truths that make up our common world.
It is on the question of one such fact, however, that Ignatieff disagrees with Arendt. In her book Eichmann in Jerusalem, Arendt brought attention to the complicity of Jewish leaders who, during WWII, supplied Nazi leaders with lists of Jews and organized their fellow Jews for transport to concentration and death camps. A few resigned. Fewer committed suicide or resisted. But the majority collaborated.
These Jewish leaders often defended their actions as a lesser evil, keeping order where otherwise disorder might have reigned. But Arendt noted that they also kept themselves and their families off the transport lists. These were facts. While many Jews thought these facts should be hidden, Arendt insisted on telling the whole truth. Arendt argued that it is always right to tell the truth, no matter the consequences.
What is more, Arendt had the temerity to judge the Jewish leaders for their complicity. The Jewish leaders, she wrote, had defended their actions by the argument of the "lesser evil"— that their cooperation allowed them to save some Jews (themselves included) and was therefore a lesser evil; if they had simply handed the responsibility for selecting and organizing the Jews to the Nazis, that would have been worse.
For Arendt, this argument of the lesser evil was in form, although not in significance or import, the very same argument Eichmann employed. It was even closer to the actions of normal, average, everyday Germans who chose to work within the Nazi bureaucracy and legal system, justifying their actions by saying that if they resigned, others, even more heartless, would take their places. What unites the German civil servants and the Jewish leaders in Arendt’s telling is their willingness to justify morally suspect actions in the name of doing an unethical job as ethically as possible.
It is important to recall that Arendt did not advocate punishing the Jewish leaders. Hers was not a legal judgment. But she did insist that they should bear moral responsibility for their actions. In short, they had put their own safety and the safety of their friends and families above their obligations to those other Jews who were under their care. In short, they had valued the lives of some over others and cooperated in the selection of some for extermination.
Arendt's argument of the formal similarity between the complicity of the Jewish leader and German bureaucrats was, Ignatieff argues, a mistake. It is worth hearing his argument at length. He writes:
Arendt had assumed that the choices that Jewish leaders made under Nazi occupation ought to be judged by the same standards of accountability to be applied to the perpetrators. She quoted her friend Mary McCarthy as saying, “If somebody points a gun at you and says, “Kill your friend or I will kill you”, he is tempting you, that is all.”
Arendt maintained that while it might not be possible to resist direct coercion, it was possible to resist temptation. This standard applied equally to perpetrators and accomplices. Without holding on to such a distinction, Arendt claimed, personal responsibility would be lost altogether.
Yet while it is a temptation for the perpetrator to say: “Kill your friend or I will kill you”, the victim so compelled is under a very direct form of coercion. Arendt has elided two very different experiences: the German perpetrator who could disobey orders that entailed telling others to kill and a Jewish collaborator who knew that the choices were between everyone dying and some dying, between dying then or dying later.
“I was told, “Arendt later said angrily, “that judging itself was wrong: no one can judge who had not been there.” But it was one thing to insist on the right to judge Eichmann and his kind, another thing to claim the equivalent right to judge—and condemn—the conduct of Jewish collaborators. The second case required a different kind of judgment, one that does not confuse understanding and forgiveness, but which does insist on empathy as a prelude to judgment. Empathy is not the same as sympathy. Empathy here means the capacity to enter into the moral world of those faced with intolerable choices and understand how these choices could be made. Empathy implies a capacity to discriminate between the condemnation appropriate to a perpetrator and that of his Jewish accomplice. The accusation here is fundamental: that in making ethical judgment the central function of intellectual life, and its chief claim of authority, Arendt had lacked the one essential feature of judgment: compassion.
There are a few things to say about Ignatieff's critique. First, he assumes that for the Jewish collaborators the choice was between "everyone dying and some dying, between dying then or dying later." Arendt disputes that fact. She denies that Jewish collaboration saved more lives than non-collaboration would have. Indeed, she argues that if the Jews had refused to collaborate, many fewer Jews would have been killed. The ensuing chaos would have afforded many Jews the chance to escape and would have inspired others to resist. Further, the complicity of Jewish leaders eased the Nazi's job and provided labor and legitimacy that expedited the efficiency of the final solution. It is simply wrong, Arendt insists, to see the choice as one of dying now or dying later. One cannot know the results of action, which always begins anew and is unpredictable in its consequences. Jewish resistance in place of collaboration, she argues, might have saved lives. It would have required courage, however, that the leaders risk their own lives.
Second, Ignatieff argues that Arendt was wrong to judge the collaborators and that in doing so she denied them the empathy and compassion that are essential features of judgment. Here Ignatieff and Arendt have a real difference of opinion, and it is one worth thinking about.
Ignatieff insists that judgment requires compassion. We should get to know the person being judged, empathize with his plight, and make allowance for his wrongs based on the circumstances. Against this view, Arendt insists that compassion—which is an essential and praiseworthy trait in the personal realm—must be kept out of the political realm and divorced from questions of judgment.
Compassion with another requires an engagement with another in their singularity. Indeed, it is just such a lack of compassion with those Jews under their care that was absent on the part of the Jewish leaders and that allowed them to act such as they did. Instead of compassion, the Jewish leaders treated their fellow Jews with pity. The leaders eased the plight of their subjects by treating them pitifully and softly as they sent them off to die, but they were able to do so only by avoiding the true empathy of compassion that would have made such action impossible. If the Jewish leaders really had compassion, they could never have handed them over to the Nazis to be killed. In fact, it is this willingness to subordinate their compassion and singular relation to those they were responsible for, to the political logic of means-ends rationality that bothered Arendt.
What most bothered Arendt, however, was that the Jewish leaders judged it better to do wrong by sending others off to die than to suffer wrong themselves. This putting of their own self-interest above the moral requirement not to do wrong was, she argued, a violation of the fundamental moral law first announced by Socrates; that it is better to suffer wrong than to do wrong. It is for their poor moral judgment that Arendt judges them.
While the leaders should have showed compassion for those in their care, Arendt insists that a judge should not. Judgment requires distance. It is from her distant perch as a conscious pariah—an outsider who refuses to let compassion enter her judgments—that Arendt found the moral authority with which to judge the Jewish leaders. On the need for such judgment, she and Ignatieff simply disagree.
Enjoy Ignatieff's speech. It is a shining example of how to accept an award with gratitude—appropriate for a post-Thanksgiving read. And let us know what you think.
The jury trial is, as Alexis de Tocqueville understood, one essential incubator of American democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
If the experience of sitting in judgment as a juror is a bulwark of our democratic freedoms, we should be worried. As Albert W. Dzur writes, the jury trial, once the “standard way Americans handled criminal cases,” is now largely absent from the legal system. The jury trial “has been supplanted by plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term. In addition to cost and efficiency, justice officials worry about juror competence in the face of scientific and technical evidence and expert testimony, further diminishing the opportunity for everyday people to serve.”
Dzur offers a clear case for the disappearance of the jury trial:
[J]uries in the United States today hear a small fraction of cases. In 2005 the Bureau of Justice Statistics reported that juries heard 4 percent of all alleged criminal offenses brought before federal courts. State courts match this trend. Legal scholars Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor discovered a 15 percent decline in total criminal jury trials in state courts over the last 30 years, compared with a 10 percent decline in criminal bench trials, in which a judge issues the verdict. They also found a 44 percent decline in civil jury trials compared with a 21 percent decline in civil bench trials.
So what does the retreat of Jury trials signify? For Dzur, the answer is that the jury system is an important part of our justice system because it performs a “constructive moral function,” by which he means that juries “force widespread sobriety about the real world of law and order.” Juries can challenge “official and lay attitudes regarding the law. This sobering quality of juries is particularly needed now.” Here is how Dzur characterizes more fully the “sobering quality of juries”:
A juror treats human beings attentively even while embedded within an institution that privileges rationalized procedures. Not advocates, prosecutors, or judges, jurors are independent of court processes and organizational norms while also being charged with judicial responsibility of the highest order. Their presence helps close the social distance between the parties and the court. The juror, who contributes to what is a political, juridical, and moral decision, becomes attuned to others in a way that triggers responsibility for them. Burns notes how jurors’ “intense encounter with the evidence” helps them engage in self-criticism of the “overgeneralized scripts” about crime and criminal offenders they may have brought with them into the courtroom.
In other words, juries are institutional spaces where citizens have the time to attentively consider fundamental moral and legal questions outside of the limelight and sequestered from public opinion, government pressure, and the media circus. Since juries are the institutions where we practice moral judgment, Dzur argues that the loss of juries means that “we are out of practice. Lay citizens no longer have opportunities to play decisive roles in our justice system.”
The recent jury decision in the George Zimmerman case is an example of a jury resisting popular calls for guilt and making a sober judgment that the facts of the case were simply not proven beyond a reasonable doubt. Juries can also resist the government, as might happen if Edward Snowden would return to the United States and put himself on trial before a jury. Such a jury could, and very well might, exonerate Snowden, exercising its fundamental right of jury nullification in the interest of justice. Snowden’s refusal to return is, in some part, a result of the diminished practice of moral judgment reflected in the diminishment of the jury.
Jury judgments are at times surprising and can, in extraordinary cases, go against the letter of the law. But the unpredictability of jury verdicts makes them neither irrational nor thoughtless. They are often intolerant and unfair, but this makes them neither racist nor unjust. Amidst the unquestioned hatred of all discrimination, we have forgotten that discrimination, the art of making relevant distinctions, is actually the root of judging. In our passion for rationality and fairness, we sacrifice judgment, and with judgment, we abandon our sense of justice.
What acts of judgment exemplified by juries offer are an ideal of justice beyond the law. Plato called it the idea of the good. Kant named it the categorical imperative. Arendt thought that judgment appealed to common sense, “that sense which fits us into a community with others.” What all three understood is that if morality and a life lived together with others is to persist, we need judgments that would invoke and actualize that common moral sense, that would keep alive the sense of justice.
For your weekend read, take a look at Dzur’s report on the loss of the juries. Also, you might revisit my own essay on this theme, “Why We Must Judge,” originally published in Democracy: A Journal of Ideas.