Judith Butler is one of the world’s most influential academics and public intellectuals and a leading supporter of the BDS movement. In this essay, Russell Berman of Stanford University critiques Butler’s (ab)use of Hannah Arendt’s controversial book Eichmann in Jerusalem to support her own emphatically anti-Zionist conclusions. Russell shows how Arendt’s reservations about a single judicial act is illegitimately inflated by Butler into a fundamental rejection of the state. He traces the changing representation of justice from Arendt’s reading of Eichmann to Butler’s reading of Arendt, from the critique of the trial to the rejection of the state.
In 1961 Adolf Eichmann, one of the architects of the Shoah, was apprehended in Argentina by Israeli agents and brought to Jerusalem where he was put on trial, convicted and executed. The trial was a turning point in the history of Holocaust jurisprudence and the judicial treatment of human rights crimes more generally. Hannah Arendt reported on the trial for The New Yorker, and her accounts, published as the book Eichmann in Jerusalem in 1963, provoked an enormous controversy, not the least because its subtitle, A Report on the Banality of Evil, was understood (or misunderstood) to trivialise the crimes. Yet there were many other dimensions to the criticism of the book, driven in part by the fact that Arendt had taken the occasion of the trial to express her own antagonism toward David Ben-Gurion and her reservations about the shape the Zionist project had assumed. Was it Eichmann who was on trial or did Arendt treat the State of Israel as the ultimate defendant?
Much of this debate is well known, and is in any case too extensive to treat exhaustively here. However, posing the question today is appropriate because the contemporary American scholar, Judith Butler, draws specifically on Arendt’s account in Eichmann in Jerusalem to support her own emphatically anti-Zionist conclusions in her 2014 volume Parting Ways: Jewishness and the Critique of Zionism. While Arendt raised doubts about the character of the Eichmann trial, especially the prosecutor, Butler magnifies Arendt’s position into a fundamental rejection of the state, not merely the single judicial act. For both however the problem of reaching and representing justice is central to their respective and very different arguments.
I will trace aspects of the transformed representation of justice from Arendt’s reading of Eichmann to Butler’s reading of Arendt, from the critique of the trial to the rejection of the state. The story spans half a century and therefore can be thought of as a kind of reception history of the trial. It is also an object lesson in the indeterminacy of the political values of ideas, insofar as Arendt, an ultimately conservative political theoretician, curiously turns into a source for Butler who understands herself unambiguously as a thinker of the left.
This conceptual journey from right to left is intertwined with another trajectory, from Arendt’s early Zionism to a more distanced relationship to Israel. The significance of the anti-Zionist overtones in Eichmann in Jerusalem become all the more pronounced against the backdrop of Arendt’s enthusiastic embrace of Zionism during the 1940s. This is not the place to trace the complexities of the competing Zionist political programs that were debated during the darkest days of war and genocide. Suffice it to say that Arendt, during her first years in the United States, appeared to live up to a primary tenet of her philosophy, an advocacy for politics as public action. She participated in and identified with the Zionist movement, thus, for example insisting at one point on the need to raise a Jewish army to fight the Germans, and she celebrated the Warsaw uprising by placing it in the context of a long Jewish national history: ‘Honor and glory are new words in the political vocabulary of our people. We should perhaps have to go back to the days of the Maccabees to hear such language.’ Referring to the novelty of the terminology, Arendt implies the emergence of a new Jew, akin to the ‘new man’ of modernism and socialism, now casting off the subaltern degradation of the past and achieving a genuine political nationality: ‘To the extent that the Jew is disappearing, Jews have come to life: organising, fighting, proud of their flag and deeds, suffering and hoping for a better future—a nationality like the other nationalities who sprang from the fostering soil of Western history.’ It is important to parse the political language here. The terminology of Jews as ‘a nationality like the other nationalities’ reveals her core secular Zionism. The shift from the disappearance of ‘the Jew,’ in the singular, to the plurality of ‘Jews’ is consistent with her emphasis on politics as action in concert with others, and resonates with the Heideggerean notion of Mitsein. No doubt, the birth of the ‘new Jew’ can be read as a progressive vision, but her values and points of reference—honor, glory, the legacy of antiquity—echo a conservative rhetoric, as does the invocation of ‘Western history.’
Despite this momentary enthusiasm for the political ambitions of the Jewish nation, Arendt rapidly distanced herself from the Zionist movement after the 1942 Biltmore Conference, which established the focus on state formation. As committed as she was, in theory, to the public sphere and political action, she developed an animosity toward popular nationhood and any nationalism, combined with a general disdain for party politics, especially when politics merged with variants of ethnic identity. The rejection of ethno-national politics is a key theme in her Origins of Totalitarianism of 1951, reflecting an anxiety that what we would today call identity politics can disrupt a proper functioning of civic life, including the pursuit of justice, and this argument ultimately paves the way to her core critique of modernity, in which the political sphere is subverted by what she labels ‘the rise of the social,’ as developed in The Human Condition (1958). Her sharply binary distinction between public and private spheres formed the categorical basis for her critique of American school desegregation in ‘Reflections on Little Rock,’ which originally appeared in Dissent, where she asserted that the education of children belongs fundamentally to the private sphere of family life and that it should therefore not be subject to political or judicial mandates. While she would ultimately express public regret for her resistance to desegregation, it is noteworthy that she did not retract a side argument in the same essay defending the practice of restrictions in clubs and resorts that excluded Jews. On this point too, the rigid distinction between private and public led her to argue that the private facts of ethnicity or nationality should not belong to the sphere of civil rights or public equality. Moreover one sees here an indication of a certain reluctance to criticise anti-Semitism, one end of a long arc that leads decades later to her reader Butler’s efforts to shield anti-Zionism from allegations of anti-Semitism; I will return to this point.
The scandal of ‘Reflections on Little Rock’ in 1958 anticipated key aspects of the provocation of Eichmann in Jerusalem in 1963: Arendt would again show herself fundamentally unsympathetic to political agenda with ethnic or national dimensions, while continuing to insist on an uncompromising separation of private and public. Private matters, she would argue, do not belong in the public sphere. Yet paradoxically her core contention in the book relied on a very private matter: not the objective substance of Eichmann’s deeds but her conjectures about his personality. Her insistence on his ‘banality,’ which provoked so much anger, may have been intended to mean that he was not a diabolical genius, not a monster, not an ideological Jew-hater, but ultimately it suggested that he was merely an uninteresting personality, always mechanically following someone else’s orders. But is personality a criminal matter?
In fact, considerable scholarship, most recently by Bettina Stangneth, demonstrates that Arendt misjudged Eichmann who likely feigned his own blandness in a failed effort to avoid the death sentence, but the point here is that Arendt based her primary argument on a (probably wrong) claim about Eichmann’s personality, rather than on his crimes. While by the end of the book, she affirms the conviction on the basis of his acts, her main argument treats his character, not his crimes. Nonetheless, she would condemn the prosecution, as we will see, for not limiting itself to the criminal acts and instead addressing material she deemed irrelevant to the pursuit of justice. While she was prepared to criticise others for introducing private matters into the public sphere, she clearly failed to hold herself to the same norm by emphasising the banality of the personality over the egregiousness of the deeds.
This background is necessary to appreciate why her criticism of the prosecutor’s case is the key point relevant to the representation of justice in Eichmann in Jerusalem. Arendt claims repeatedly that the mandate of the court is to ‘do justice,’ which she understands exclusively in terms of determining the culpability of the defendant. All that should matter was Eichmann and the law: The wider context, the sort of historicist framing that in other circumstances a liberal sensibility might introduce to suggest some exculpatory relativisation, was not fair game. In the case of the Eichmann trial however discussions of the wider context could only mean explaining how his actions contributed to genocide and therefore strengthen the case against him. This is the wider context she opposed including in the trial’s deliberations.
Instead Arendt argued for a tunnel vision focus on the defendant, betraying a preference for a modality of justice that excludes victims and their suffering as fundamentally irrelevant. Hence her repeated criticism of what she regards as the excessive expansiveness of the prosecutor’s case and the introduction of survivor testimony regarding what, from the standpoint of her understanding of justice, had no place in the courtroom. Thus she resented ‘this atmosphere, not of a show trial but of a mass meeting, at which speaker after speaker does his best to arouse the audience [which] was especially noticeable when the prosecution called witness after witness to testify to the rising in the Warsaw ghetto and to similar attempts in Vilna and Kovno—matters that had no connection whatever with the crimes of the accused.’ Her repetitive phrasing— ‘speaker after speaker,’ and ‘witness after witness’—signals an annoyed impatience with the voices of victims. To do justice for Arendt means pursuing a restrictive judgment on the defendant; it does not involve providing any platform for victims. On the contrary, to achieve justice, she implies, requires the exclusion of victims whose testimony might prejudice the court against the defendant: hers is not an empathetic or liberal jurisprudence.
There was however more at stake here than a legalistic resistance to ‘an endless procession of witnesses’ (207). As Elhanan Yakira has pointed out, ‘[…] Arendt was not a historian, and what she had to say about the trial, Eichmann, and the Holocaust was not based on scholarly research. […] she relies mainly on the works of Hilberg and Reitlinger, that is, on scholars who investigated the Holocaust from the point of view of the perpetrators.’ This emphasis on the machinery of the killing reflects her own existentialist critique of modernity defined as bureaucracy plus technology. At stake are the deeds of the perpetrators, not the sufferings of the victims. Thus she delays any substantive discussion of witness testimonies until the next to last chapter, selects only a few examples and subjects most of them to dismissive comments. Arendt thereby overlooked the truly innovative aspect of the Jerusalem trial, the turn toward victim experience, a development that sharply distinguished the Eichmann hearings from Nuremberg and which would eventually lead, decades later, to the South African Truth and Reconciliation Commissions and its very different representation of justice.
The complaint against the use of victim testimony reflects the philosophical insistence on a categorical distinction between public and private: victim suffering is a private matter that does not belong in a court of law. Meanwhile, Eichmann in Jerusalem documents an additional, symmetrical contamination of legal space in its initial setting of the stage, as the curtain rises with the opening lines: ‘’Beth Hamishpath’—the House of Justice: these words shouted by the court usher at the top of his voice make us jump to our feet as they announce the arrival of the three judges, who, bareheaded, in black robes, walk in to the courtroom from a side entrance to take their seats on the highest tier of the raised platform’ (3). What follows immediately is a vertical scenario: below the judges sit the translators; below the translators, the accused and the witness box; and below them the prosecutor and the counsel for the defense. Such is the hierarchy of the law, but curiously, Arendt devotes most of this opening paragraph to the question of translation and her complaint of the ‘frequently incomprehensible’ quality of the German-language renderings, which she does not attribute to ‘the old prejudice against German Jews’ but rather to the powerful ‘’Vitamin P,’ as the Israelis call protection in government circles and the bureaucracy.’ Thus the initial scene of the law becomes a site of contamination, the inappropriate intrusion of private interests, as powerful political forces distribute sinecures, such as legal translation jobs. The language of the law has, Arendt suggests, been corrupted by the client politics of a socialist state, and this insinuation anticipates the subsequent argument that the prosecutor is himself merely a creature of a manipulative government: ‘And Ben-Gurion, rightly called the ‘architect of the state,’ remains the invisible stage manager of the proceedings. Not once does he attend a session; in the courtroom he speaks with the voice of Gideon Hausner, the Attorney General, who, representing the government, does his best, his very best, to obey his master’(5). That the trial ultimately succeeds and that justice is done takes place, for Arendt, despite the prosecutor’s political subservience. The positive outcome is due instead to the judges and their integrity. Yet by confounding Hausner and Ben-Gurion, Arendt turns the trial into a judgment on the State, especially the quasi-socialist state, at least as much as it was a judgment on Eichmann, the National Socialist, and this argument makes Arendt’s book available for Butler’s anti-Zionist reading.
Before proceeding to Butler’s account, however, I want to confront Arendt’s published description of the courtroom scene in the book with another version she provided, in private, in a letter to her teacher and friend, Karl Jaspers, on April 13, 1961. In it she offers him her own personal view of the trial, with the same vertical architecture albeit with more revealing characterisations. ‘My first impression [of the court room in Jerusalem—RB]. On top, the judges, the best of German Jewry. Below them, the prosecuting attorneys, Galicians, but still Europeans. Everything is organised by a police force that gives me the creeps, [die mir unheimlich ist] speaks only Hebrew and looks Arabic. Some downright brutal types among them. They would follow any order. And outside, the oriental mob, as if one were in Istanbul or some other half-Asiatic country. In addition, and very visible in Jerusalem, the peies and caftan Jews, who make life impossible for all reasonable people.’
The description reads as an unexpurgated draft for the opening description of the courtroom in the book, and it provides us with important insights into Arendt in Jerusalem and the prejudices she brought to her evaluation of the judicial apparatus. The admiration for the German Jewish judges and the contempt for the Galician prosecutor are terribly stereotypical, as is the hostility to the orthodox Jews. Of particular interest however is her judgment on the presumably Mizrahi Jewish police force that ‘speaks only Hebrew and looks Arabic,’ and to whom she attributes a brutality—evidently on the basis of physiognomy—and a willingness to ‘follow any order.’ With that suggestion of unlimited obedience she builds a conceptual bridge between the Israeli police force and the Nazi defendant who would become the iconic representation of following orders, regardless of their content. For Arendt, the police force of the state of the erstwhile victims shares the defining characteristic of the perpetrator now on trial, and this opens a rhetorical door for the polemical inversion that would come to inform later anti-Zionist polemics in general and Butler’s work in particular. Still, we should avoid conflating the two thinkers, and not only because of the political distance between Arendt’s conservatism and Butler’s progressivism. Ultimately, as far as the Eichmann trial goes, Arendt admires the Israeli judges, accepts the legitimacy of the court, and affirms the legality of the verdict and the sentence. Measured against Butler in 2014, Arendt in 1963 appears to be still almost a Zionist who appreciates the importance of states, and in particular the State of Israel, as the necessary framework for a judicial system that has the capacity to achieve justice. There is no justice without a state, and in 1961, so Arendt suggests despite her own doubts regarding Zionism, there could be no justice for the Jewish people without a Jewish state.
In Parting Ways, Butler attempts to rebut claims that anti-Zionism is anti-Semitic by appealing to a group of Jewish thinkers—in addition to Arendt, Walter Benjamin, Emanuel Levinas, and Primo Levi—(as well as to Edward Said and Mahmoud Darwish) in order demonstrate the viability of a Jewish critique of anti-Zionism. If these Jews can oppose Zionism (as she claims, not necessarily convincingly, that they do), then anti-Zionism cannot be anti-Semitic. The argument, which has some strategic importance in contemporary academic radicalism, is symptomatic of the debates around the anti-Israel boycott movement, although it tells us little about the thinkers themselves; we will see how Butler significantly distorts Arendt in particular.
Regarding the substantive matter, anti-Zionism and anti-Semitism, much could be said that would go far beyond the scope of this lecture. No doubt, the two terms reference different semantic fields and therefore should not be conflated: generalised Jew-hatred is not the same as opposition to the political movement to establish a Jewish state. Yet neither are the terms mutually exclusive, they can certainly overlap, and really existing anti-Zionism in the contemporary world has demonstrably and often crossed the border to anti-Semitism, for example when, instead of protesting outside of Israeli embassies, anti-Zionist activists attempt to storm synagogues, as in Paris, deface them as in England or demonstrate in front of them as in the United States. Nor to my knowledge have anti-Zionists ever demonstrated outside of the churches of Christian Zionists who, in the United States, are much more numerous than Jews and in any case much more supportive of current Israeli government policies than are the typically liberal American Jewish communities. Nonetheless, Butler tries to shield anti-Zionism from the allegation of anti-Semitism—she certainly has her work cut out for her. Yet she goes beyond a merely defensive posture by mounting the much more ambitious argument that any genuine Judaism must be emphatically anti-Zionist, so she demands, setting herself up as the arbiter of Jewish authenticity, and effectively excommunicating those who disagree. She develops this argument especially in the two chapters in Parting Ways devoted to Arendt which focus above all on Eichmann in Jerusalem: Butler reads Arendt reading Eichmann.
For Arendt, it is the duty of a court to pursue justice, and it is equipped to do so because of an authority grounded in the political community that finds expression in the state and its laws. To be sure, she qualifies the standing of the state in several ways: by locating any single state within an international system, i.e. a state among a plurality of states; by limiting the reach of the state to public matters, narrowly defined and excluding it from the private sphere, a strangely extra-judicial space; and by otherwise expressing preference for the sort of dispersal of sovereignty the she admired in the American constitutional system of separated powers and—as in ‘Reflections on Little Rock’—the federalism of so-called ‘states rights.’ Within this restrictive framework, however, justice can be pursued, in its proper terrain, thanks to the authority of the state.
In contrast, Butler treats justice and law as mutually exclusive. Positive law as an expression of the state is only an exercise in power (here one sees the indelible influence of Michel Foucault) while justice, akin to Walter Benjamin’s understanding of divine violence, has a messianic status and dwells somewhere beyond rational scrutiny, outside of normal politics. Therefore, in the Arendt chapters, aside from a few passing remarks, Butler refrains from addressing justice per se, but focuses instead on the necessary corruption of the law of the state, which is always and constitutively incapable of rendering justice. State power, for Butler, is a priori suspect because of its association with the state, and any positive law therefore necessarily an expression of malice. In contrast, for Arendt, power is viewed positively as the capacity of individuals to act in concert as a political community that can articulate laws and establish courts capable of pursuing justice.
In effect, Arendt’s qualified suspicion of centralised sovereignty becomes for Butler an unqualified rejection of any sovereignty, including even that popular sovereignty which, in democratic modernity, is the source of the legitimacy of the state and the foundation of any system of legality. However ‘the people,’ whose political expression is the democratic state, and on whom democratic legitimacy depends, is more than a statistical accumulation of strangers. At stake instead are forms of historical community and shared identity, whether one understands the ‘people’ in a phenemonological sense as the empirical inhabitants of a shared life world or, more romantically, as the folk participants in national traditions. Butler’s rejection of sovereignty altogether applies necessarily to popular sovereignty as well and therefore to democratic political formations. While Arendt objects to the intrusion of ethno-nationality into politics, she does not erase it altogether: she treats it instead as a merely private matter. In contrast, and in particular for Jewish identity, Butler radicalises Arendt’s apprehensions concerning ethnicity into an uncompromising imperative of dispersion: the only permissible community, for Butler, is the dispersed community. ‘Jewishness can and must be understood as an anti-identitarian project insofar as we might even say that being a Jew implies taking up an ethical relation to the non-Jew, and this follows from the diasporic condition of Jewishness […].’ It follow then that the only authentic Jewish condition is exile because Jewishness requires that we ‘affirm the displacement of identity, ‘ and she continues: ‘The point is not simply to scatter geographically, but to derive a set of principles from scattered existence […]’ (117-18). Hence the eleventh commandment: thou shalt disperse. Genuine Jewishness is, for Butler, necessarily diasporic: the true Jew is the wandering Jew, with the surely intended implication that the adoption of, for example, a Balfourian homeland objectively represents a forced political conversion into a gentile normalcy, or what we saw Arendt call ‘a nationality like the other nationalities,’ which is exactly what Butler rejects.
Butler’s refusal of an identitarian Jewishness does not only pertain to the formation of a territorial state—although that is her primary target—but goes much further to a rejection of any ‘solidaristic’ community (148), including in diaspora. Butler calls for a ‘departing from a communitarian basis for political judgment and responsibility alike,’ i.e. Jews must never be responsible for other Jews, nor should Jews as Jews engage in the exercise of political power. That claim in particular goes far beyond her consistent anti-Zionism to proscribe any Jewish politics altogether, which amounts to a retraction of Enlightenment and civil emancipation as the right to participate in political processes: ‘‘if Jewishness mandates this departure from communitarian belonging, then ‘to belong’ is to undergo a dispossession from the category of Jewishness’ (127). It is difficult to read this as anything other than a rejection of any possible Jewish community organisation, even in diaspora. Butler’s prohibition of Jewish political practice, arguably consistent with a broader anarchist inclination to oppose states as such, is however profoundly incompatible with Arendt’s positive evaluation of politics and political power. Arendt harbored doubts about Israeli politics, and perhaps about the wisdom of the Zionist foundation altogether; unlike Butler however, she did not reject the notion of the state—any state—altogether.
The question of the state is relevant here because, even in Eichmann in Jerusalem, it is the state that is the source of the authority of the court to render justice. Not so for Butler with her anti-political inclinations that lead to the conclusion that no possible court can ever succeed in representing justice. To reach this position, she wrongly appeals to Arendt’s authority, via two distinct misreadings, one concerning the problem of the nation state, the other the significance of sovereignty. In each case she mischaracterises Arendt in order to provide her own anti-Zionism with a false genealogy.
In Origins of Totalitarianism, Arendt works with the ideal type of an early modern state as the guarantor of the rule of law and the possibility of rights. She describes how various historical processes ensue that undermined this civil order, including the emergence of nationalism and the aspiration for nation-states, key components of ‘the rise of the social’ mentioned earlier. While Arendt’s narrative eventually leads to the totalitarianisms of Nazi Germany and Stalinist Russia, she hardly equates nineteenth-century nationalism with the twentieth-century catastrophes: Bismarck’s Germany was not already the Third Reich. Yet Butler blurs this distinction and wrongly claims to be following Arendt in doing so. For Butler the liberal nation-state and the totalitarian racial state are effectively indistinguishable from each other, a very un-Arendtian assertion, but one that allows Butler to denounce the Zionist agenda of nation state building.
This distance between the two thinkers becomes particularly salient in Butler’s manipulative rephrasing of Arendt’s conclusion. The epilogue to Eichmann in Jerusalem finishes with Arendt’s memorable rearticulation of the judgment of the Jerusalem court in her own terms. She purports to speak with the voice of the judges, as she concurs with their verdict but provides what she regards as her own better arguments. Hence Arendt’s final sentences, addressed to the defendant: ‘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.’ (279).
Arendt’s argument clearly references Nazi genocidal policies that presumed the right to decide who may ‘inhabit the world.’ Butler confuses the matter, transforming it into an exhortation to ‘cohabitation’ (125). This shift from Arendt’s question of inhabiting the world—the critique of mass murder—to Butler’s imperative of cohabitation dilutes Arendt’s value of the plurality of human life, turning it into a plea for our contemporary multiculturalism. Butler wrongly enlists Arendt in her own campaign against any communitarian identity, but especially Jewish identity. To do so, she has to transform Arendt’s condemnation of genocide into a criticism of any possible community. This in turn leads her to the bizarre conclusion that the judicial system of any nation state is constitutively incapable of ever rendering justice because it is predicated on restrictive cohabitation. A state that engages in the biopolitical practice of managing immigration in any way can by definition never be just. Butler does however leave room for a non-statist Jewish (ethical or religious but not political) ‘pursuit of justice—different [however] from the one that would of necessity find its representation in the Israeli courts’ (150). Here is Butler’s clear accusation that Israeli courts, including the Eichmann court, by necessity cannot represent justice because they are the expression of the authority of a nation state. One should note that on this point, the legitimacy of Israeli courts, Butler’s rejectionism contrasts fully with Arendt’s explicit endorsement of the court and its verdict, as she made clear in her response to Gershom Scholem’s harsh criticisms of her book.
Yet –and here I come to Butler’s second misreading of Arendt—Butler’s anti-judiciary account is not only a matter of Jewishness or Israeli courts or even the nation state in general. Instead she suggests that no possible human court of law that is charged with the adjudication of legality derived from legitimate political authority can ever achieve justice. In other words, positive law, the staple of any court decision, can never lead to genuine justice. In Butler’s terms: ‘Arendt is not only taking issue with the way the Israeli courts arrived at the decision to sentence Eichmann to death. Her book finds fault with every existing legal code brought to bear upon the scene’ (155). This claim that Arendt, in Eichmann in Jerusalem, rejects ‘every existing legal code’ is not supported by the intratextual evidence: there are no philologically tenable grounds for Butler’s colonisation of Arendt for her own antinomianism. It is rather Butler’s own rejection of all positive law that defines her own understanding of justice, even if she wrongly believes that Arendt writes ‘at some distance from positive law’ in order to stake out a ‘prelegal’ perspective (155). On the contrary, it is exclusively Butler, and not Arendt, who endeavors to define a prelegal or extralegal space as the exclusive home of justice. Hence the difference between the two in the understanding of Eichmann’s culpability: For Arendt, as we have seen, the court rightly and justly condemned him for certain deeds, supporting and carrying out genocidal policies, while Butler, extrapolating from Arendt’s characterisation of Eichmann’s personality, emphasises his obedience to the law, rather than the substantive acts, as the ultimate crime. In Origins of Totalitarianism, Arendt had described the fundamentally lawless character of the murderous regimes in Germany and Russia, far from any Rechtsstaat, with no rule of law; for Butler, by way of contrast, it is the rule of law itself that is the problem. For her, the obedience that law necessarily expects stands opposed to justice.
Following Butler, it is the rule of law that demands that we obey the law, and any such obedience leads us quickly down the slippery slope to complicity. The Rechtsstaat is always already the Unrechtsstaat, in the shadow of which good citizens are likely to become mass murderers. One recalls on this score Ward Churchill’s notorious characterisation of the 9/11 victims as ‘little Eichmanns.’ Yet we need not go so far afield to find similar claims. In her letter to Jaspers, Arendt expressed concern with the Israeli policemen that looked like they would carry out any order, an echo of the common characterisation of Eichmann. Nonetheless, for Arendt, that anxiety about the Israeli police contrasted sharply with her trust and admiration for the Jerusalem judges. On this point Butler differs. For Butler, the ultimate source of injustice is any assertion of sovereignty, i.e. state power expressed in positive law, compliance with which describes the failing of both the court and the defendant because ‘certain kinds of norms are already operative in both crime and judgment even if judge and criminal do not know what they are’ (161). Butler’s Hegelianism is unmistakable: a common spirit operates behind the backs of court and defendant, unbeknownst to either: judge and criminal are found to be cut from the same cloth. Buried in Butler’s prose is the scandalous equation of Nazi bureaucrat and Israeli judges, understood equally as functionaries of state sovereignty, which is the real crime. Even if elsewhere Butler rejects the propagandistic equation of Zionism and Nazism (121), the logic of her argument draws them inexorably together along with any state formation, as if all sovereignty, any state anywhere, can only be understood in the terms of Carl Schmitt at his most ruthless.
Yet she is inconsistent in this critique of sovereignty since, when all is said and done, it is only or primarily Israeli sovereignty that she denounces: regarding the Jews she is an anarchist, but she is a statist for the Palestinians. Similarly she develops the critique of ‘solidaristic’ community exclusively with regard to Jews, as if she has internalised the anti-Semitic trope of Jewish clannishness, which she attempts to erase with her injunctions. But an alternative argument concerning her bias against Jewish community is more likely: by insisting on the critical capacity of an exilic or diasporic condition to Jewishness, she effectively stakes out her own claim for privilege as a Jewish thinker. Her own condition of displacement, so she suggests, tends to elevate her above other scholars who are not (in her view) fortunate enough to live outside of a community of solidarity. At the end of the day, we find another case of an intellectual arguing for the priority of intellectuals over and against the benighted participants in shared identity structures.
There is a left-wing adage, derived from a letter of the American labor organiser Joe Hill, executed in Utah in 1915: ‘Don’t mourn. Organise.’ The phrase has circulated widely in radical movements, thanks to its powerfully binary opposition of past and future, affect and practice, indolence and politics. It is a useful point of concluding orientation for our discussion on representing justice. Should the organisation of justice be blind to the suffering of mourners? Must we segregate the emotion of mourning from the organisation of legality? Hill’s imperative may convey the wisdom that we refrain from unproductively irrational responses, such as crimes of passion or vengeance but also any debilitating melancholy. Nonetheless is there no room for affect and grief in the public, and in what relation do they stand to justice? Why can’t we mourn and organise?
Arendt’s response is clear: personal suffering is a private matter that has no claim on the court’s attention. Justice should be blind and deaf as well and make its case solely on the basis of the law. The guarantor of the law is the state, and the success of the state depends on the rational intelligence of its judges and the reflectiveness of its citizens, not their emotions. The intrusion of emotions into the public only paves the way for the corruption of civil life. To return to Hill’s phrase: mourning is antithetical to political organisation and stands outside the law.
Butler’s approach is different, we have seen, based on a fundamentalist suspicion of any state and its law, an emphatic anti-politics that may be symptomatic—and not only in its anti-Zionism—of contemporary academic radicalism. The state cannot represent justice as long as it is the state. This conclusion became particularly clear in Butler’s commentary on the ISIS attacks in Paris in November. The short essay bears the title ‘Mourning Becomes the Law,’ a recycling of a book title by Gillian Rose. Observing the responses to the terror attacks, Butler chides the French public, arguing that the expressions of grief served only to legitimate the transition to a police state under the mantle of the declared state of emergency. In effect, mourning turns into the source of organisation or, rather, the reorganisation of the state and the establishment of a new regime of power marked by diminished civil liberties expectations. Yet precisely this outcome was already inherent in Butler’s evaluation of any sovereignty in Parting Ways.
The distance between Arendt and Butler testifies to the contemporary delegitimation of the state and transformations in estimations of political community. While Arendt, for all of her criticism of ethno-nationalism, nonetheless prized nothing more than politics as the capacity to act in concert, Butler directs us to dissolve any ‘solidaristic’ allegiances. Without solidarity or community or loyalty, however, no politics are possible. Regarding Butler’s response to Paris, two final comments follow that shed light on the question of justice.
First, in her Paris text, ‘mourning’ is exclusively a matter of manipulated affect. The security state incites mourning in order to amplify its power. This instrumentalist account of mourning is antithetical to Benjamin’s account, which Butler otherwise invokes, the Trauerspiel as the portal to a messianic justice via the extralegal decisionism of the sovereign. Yet facing the French state of emergency, Butler abruptly renounces Benjamin’s mystic radicalism and reverts to a conventionally liberal concern about infringements on civil rights as a result of the state of emergency. That her liberal concern is conventional hardly makes it wrong. The point however is that in the face of a dictatorship—I would say an imaginary dictatorship under Francois Hollande—Butler appeals to the conventional understanding of that same rule of law which she otherwise treats as inimical to genuine justice.
Secondly, Butler views the French mourning as fundamentally unjust because it addresses the victims of the Paris attacks exclusively. This is a standard internationalist response: the French mourning the Parisians is judged to be hypocritical because it ignores so much suffering elsewhere. ‘Mourning seems fully restricted within the national frame. The nearly 50 dead in Beirut from the day before are barely mentioned, and neither are the 111 in Palestine killed in the last weeks alone, or the scores in Ankara.’ Her mention of 111 Palestinians most likely refers to a newspaper account published just days before her text appeared that reported on 111 injuries, which she however turns into 111 deaths: evidently for her a minor discrepancy she felt compelled to gloss over for the sake of her narrative. Be that as it may, her list exposes her to the same accusation of exclusion: if the Parisians forget the ‘scores in Ankara,’ then Butler has herself forgotten the Israeli stabbing victims, or the Iranian executions or the extensive list of other deaths that one could easily compile. Indeed only an infinite list of all those who have died or ever will die would be sufficient.
The appropriate question instead is whether the suffering that I witness directly has any special significance for me, any special claim on my empathy, i.e., whether one can distinguish between suffering that is close, spatially or metaphorically, and suffering that is distant. Such proximity however is a marker of the community solidarity that Butler explicitly rejects as identitarian. For her, only a world populated by non-solidaristic strangers could achieve justice because only its absolute randomness could eliminate any grounds for discrimination. The death of my loved one before my eyes must not touch me more than the death of a stranger on the other side of the world. Critical Theory, which began as a critique of alienation, comes full circle with Butler’s endorsement of infinite estrangement. What she cannot envision is a political community that despite its community character could nevertheless build institutions, a judicial system, capable of treating everyone, even strangers, with equality: for her, because a state is a state it cannot be just. The contrast between Arendt and Butler marks a half century in the withering away of the state as a location of trust and inclusion. The neoliberal assault on the welfare state is only a small piece in a much larger secular retreat from the state in general and an endemic cynicism toward politics. There is some irony perhaps to discover that Butler’s anarchism is heir to neoliberalism and its congenital animus against state power. To pursue justice today requires addressing this legitimacy crisis of the law.
 Hannah Arendt, ‘The Political Organization of the Jewish People,’ in The Jewish Writings, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 199.
 ‘The Political Organization of the Jewish People,’ p. 256.
 Ruth Starkman describes the transformation of Arendt’s usage from this moment of militant Jewish patriotism to a still public but less assertive value in her later account of Greek antiquity. ‘In The Human Condition she asserts that action was always bound to ideas of “honor” and “glory,” since the Greeks and all the way to Machiavelli. Honor and glory derive from appearing publicly and participating in the theatrical nature of politics […]. That she includes the Jews in this human plurality with honor and glory is already apparent in her wartime writings. It seems, then, that for Arendt honor and glory shifted, after the War, to other kinds of experience besides fighting under a people’s flag and publically demonstrating national passions.’ Ruth Starkman, ‘“For the Honor and Glory of the Jewish People”: Arendt’s Ambivalent Jewish Nationhood,’ The European Legacy Vol. 18, no. 2 (2013), p. 196.
 Her comments on minority students in On Violence a decade later suggest that she had not moved far away from her predispositions in ‘Reflections on Little Rock.’ Cf. Kathryn T. Gines, Hannah Arendt and the Negro Question (Bloomington: Indiana University Press, 2014).
 Cf. Bettina Stangneth, Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer (New York: Vintage, 2015).
 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 2006), p. 121. Further references to this volume are included in parentheses in the main text.
 ElhananYakira, Post-Zionism, Post-Holocaust: Three Essays on Denial, Forgetting and the Delegitimation of Israel (Cambridge: Cambridge University Press, 2009), p. 291.
 Arendt to Jaspers, April 13, 1961, letter 285, in Hannah Arendt and Karl Jaspers, Correspondence, 1925-1969, ed. Lott Kohler and Hans Saner, trans. Robert Kimber and Rita Kimber (New York: Harcourt Brace Jovanovich, 1992), 434-436. Cf. the original in: Hannah Arendt and Karl Jaspers, Briefwechstel 1926-1969, ed. Lotte Köhler and Hans Saner (Munich: Piper, 1985), p. 472. The animosity toward the prosecutor and the public is quite emphatic throughout the letter. Regarding the prosecutor: ‘[…] a typical Galician Jew, very unsympathetic, is constantly making mistakes [in German—RB]. Probably one of those people who don’t know any language’ (p. 434). Regarding the public: An oriental mob that would hang around any place where something is going on is hanging around in front of the courthouse’ (p. 435). The translation softens the German phrasing: ‘Vor dem Gerichtssaal lungert ein orientalisher Mob, der überall lungern würde, wo was vorgeht’ (pp. 471-72).
 For an extensive critique on this point, see Cary Nelson, ‘The Problem with Judith Butler: The Philosophy of the Movement to Boycott Israel,’ in The Case Against Academic Boycotts of Israel, ed. Cary Nelson and Gabriel Noah Brahm (Chicago: MLA Members for Scholars Rights, distributed by Wayne State University Press, 2015), 164-201.
 Judith Butler, Parting Ways: Jewishness and the Critique of Zionism (New York: Columbia University Press, 2014), 117.
 Sarah Shin, ‘Mourning Becomes the Law; Judith Butler from Paris’ Verso Blog, November 16, 2015, http://webcache.googleusercontent.com/search?q=cache:imemmrnJr5EJ:www.versobooks.com/blogs/2337-mourning-becomes-the-law-judith-butler-from-paris+&cd=1&hl=en&ct=clnk&gl=us. Accessed November 27, 2015. The Verso Blog byline attributes the piece to Sarah Shin, but it is identified as a text by Butler. A French translation, attributed to Butler, appeared in Libération on November 19: ‘Une liberté attaqué par l’ennemi et restraint par l’état,’ http://www.liberation.fr/france/2015/11/19/une-liberte-attaquee-par-l-ennemi-et-restreinte-par-l-etat_1414769. Accessed November 27, 2015.
 ‘111 Palestinians shot, injured during West Bank, Gaza demonstrations,’ Ma’an News Agency, November 13, 2015; https://www.maannews.com/Content.aspx?id=768807, accessed November 27, 2015.