Toward an agonistic understanding of law: Law and politics in Hannah Arendt's Eichmann in Jerusalem

Abstract

Contemporary readers of Eichmann in Jerusalem often cast it as a juridical text, concerned with justice rather than politics. These juridical readings rightly focus attention on what Arendt calls the primary challenge of the case – judging Eichmann's unprecedented crimes against humanity in a rule-bound court – but they insufficiently attend to Arendt's resistance to a juridical response to this problem, especially as evidenced in her criticism of the Jerusalem Court's rule-following. Taking Arendt's resistance to the Court's approach as my guide, I argue that Eichmann in Jerusalem does not authorize a juridical approach to the unprecedented, but instead points toward the importance of an agonistic understanding of law – an understanding that foregrounds law's dependence on political contestation of legal strictures and constraints. Especially with the advent of unprecedented crimes against humanity, Arendt suggests that we must attend to law's dependence on the human capacities to resist legal compulsion and found new institutions – capacities which are unpredictable, but which also render new institutions like an international court possible.