Language, Judgment, and the Holocaust

In The Failure of the Word, Richard Weisberg asks how legal scholars can “justify the substitution of imaginative for legal prose.”[1] By way of response, scholars such as Martha Nussbaum and Weisberg have sought to demonstrate the power of literature to better render moral ambiguity and situational complexity than the language of the law. The most attractive images of the art of judgment, these scholars argue, are not to be found in the decisions duly compiled in the Federal Reporter, but in works of the literary imagination. These works, by capturing a world of nuance largely absent from the Manichean terms of law, offer a critical “school of moral sentiments” and, as a consequence, can help the legal scholar to better appreciate the law’s exclusion and to extend the law’s discursive ken.[2]

Such is the view interrogated in Leora Bilsky’s essay “Judging Evil in the Trial of Kastner.” The trial, the most important to take place in the young state of Israel before the Eichmann proceeding in 1961, tested a court’s capacity to situate itself with sensitivity in an impossible history. Yet instead of focusing directly on the fraught legal and historical questions raised by the case, Bilsky adopts an unusual and rewarding approach, focusing instead on the justificatory rhetoric deployed by Judge Benjamin Halevi in his judgment that basically absolved Gruenvald of having libeled the Mapai official. (Finding Gruenvald liable for only a single inconsequential libel, Halevi, following the English practice, awarded Kastner the symbolic and deeply sarcastic sum of one lira in damages.) Bilsky finds the flawed logic of Halevi’s opinion encapsulated in one line of his judgment where the judge mixed his literary metaphors, at once conjuring the specter of the Trojan Horse and the character of Faust to describe and condemn Kastner’s self-servingly collaborationist behavior. At the very least, Halevi’s charge that Kastner had sold his sold to the Devil, namely, Eichmann, explains why, years later, many within Israel demanded, to no avail, that Halevi recuse himself from the Eichmann trial. Indeed, lingering concerns regarding Halevi’s handling of the Kastner case led the Knesset to amend its criminal code specifically to guarantee that Halevi would not preside alone over the trial of Adolf Eichmann. (Originally by law, Eichmann would have been tried by the president of the Jerusalem Court, who was, at the time, Halevi. The amended law required that any person tried under the 1950 Nazis and Nazi Collaborators Law–the charging statute under which Eichmann was prosecuted–be tried by a three-person tribunal that included a sitting member of the Israeli Supreme Court.)

According to Bilsky, Halevi’s conjuring of Troy and Faust did more than encapsulate his harsh condemnation of Kastner. Instead, Bilsky argues, it tells us something more general about the relationship between legal argument and literary example. Halevi’s provocative (mis)use of literary tropes reveals, then, that the “turn to literature” does not necessarily result in a more nuanced or morally sophisticated understanding of history on the part of the jurist. Challenging any tendency to essentialize discourse, Bilsky makes the important argument that law is not intrinsically limited as a representational discourse; conversely, literature cannot claim a monopoly on representational completeness or a superior capacity to portray historical fact in its ineluctable complexity.

Bilsky’s point is significant, although it is not entirely clear whether her close reading of Halevi’s judgment actually supports her position. The problem, I believe, is that she asks Halevi’s invocation of the Trojan Horse and the Faust legend to do too much: to stand as a larger example of law’s appeals to, and appropriations of, the world of literature. Indeed, Bilsky turns Halevi’s mixed metaphor into a second order metaphor, one that stands as a figure for the intersections between legal and literary discourse. Yet Halevi’s fleeting invocation of Faust can hardly serve as an example of the kind of robust engagement with the world of literature that Martha Nussbaum and Richard Weisberg believe would humanize legal discourse. Neither Nussbaum nor Weisberg is so naïve as to believe that the language of legal judgment can be substantially humanized by the occasional insertion of a literary reference into a legal opinion. Instead, their defense of the humanizing powers of the literary imagination insists that the legal scholar and jurist take seriously the vision of richly embodied human subjects trying to wrestle meaning from a complex reality present in serious literary works. Their argument, then, does not simply call for peppering High Court opinions with lines from Yeats and Stevens (and here I mean Wallace and not John Paul); instead, they argue that the goal of extending the law’s ken can be accomplished only through a serious and sustained examination of the dramas of judgment contained in works of the literary imagination.

In this regard, Bilksy’s essay offers less a direct challenge to the arguments of Nussbaum and Weisberg than it reinforces a central claim of scholars such as Peter Goodrich, who insist that, like any professional grammar, the language of law is structured in terms of tropes and metaphors that make intelligible its central concepts.3 Bilsky’s discussion of Halevi’s reliance upon contract law to characterize Kastner’s interactions with the Nazis reminds us that even the most formal areas of law are structured around tropes such as “the meeting of the minds,” rhetorical figures through which the law’s doctrinal commitments speak. From this perspective, Halevi’s invocation of the Trojan Horse and the legend of Faust does not represent the anomalous or unexpected insertion of a literary trope into the arid discourse of legal formalism. Instead, it reminds us of the ways that even legal formalism is structured as a rhetoric, based on metaphors and tropes that shape and make intelligible the content of, say, the law of contract.

Bilsky’s piece, however, can also be seen as a contribution to a separate, though not entirely unrelated, debate about the representational powers of legal discourse. Although scholars of law and literature tend to defend the prerogatives of the literary imagination, scholars of the Holocaust, such as Berel Lang, sternly question the appropriateness of creative or figurative representations of traumatic history. Here the argument is that figurative representations of the Holocaust tend to aestheticize genocide by subjecting senseless horror to the organizational imperatives of narrative.[4] As Adorno wrote, “through the aesthetic principle of stylization–an unimaginable fate–becomes transfigured, with some of the horror removed.”[5]

This skepticism about the capacity of imaginative literature to do justice to the Holocaust has not, however, worked to the comparative advantage of law. On the contrary, numerous scholars have argued that legal discourse, for altogether different reasons, cannot be relied upon to do justice to the history of the Holocaust. Ian Buruma, for example, writes that a trial “can only be concerned with individual crimes” and, as a result, “history is reduced to criminal pathology and legal argument.”[6] Other scholars, such as Michael Marrus, have argued that the formal norms of evidence and procedure that govern a trial, as well as the substantive criminal law into which mass atrocity must be pigeonholed, render the trial a flawed tool for comprehending traumatic history.[7] These critiques insist that the judicial process inevitably fails to grasp the most disturbing and fundamental issues raised by the Holocaust, issues more satisfactorily explored through the discourse of history.

At first blush, Bilsky’s study of the Kastner trial seems to support critiques of both literature’s and law’s ability to represent traumatic history. Halevi’s insistence on translating the tragic choices confronted by Kastner into the formal idiom of the law of contract seems like a grotesque act of reductionism, a crude example of law’s fetishization of form over content, a dramatic example of the failure of the legal mind to comprehend a world of duress, coercion, and moral ambiguity. According to this view, Halevi’s comparison of Kastner to Faust merely underscores the futility of attempting to illuminate the anguish and moral insanity of genocide by appeal to a literary model of the tragic. As the quintessential drama of the individual’s wager for meaning and mastery over nature and self, Faust has painfully little to say about the desperate attempt to negotiate survival in the face of collective death. In both its reliance on literary tropes and the structure of its juridical argument, Halevi’s decision reveals the limits of literary and legal discourse to do justice to the Holocaust.

Yet this is only half of Bilsky’s story. For in the judgment of Israeli Chief Justice Simon Agranat that reversed Halevi’s decision, we find precisely the attention to the tragedy of moral choice so conspicuously absent from Halevi’s opinion. Here, then, we encounter an excellent example of the plasticity of legal discourse, of its power to bend to accommodate and give word to a complex historical and moral reality with nuance and fairness. Importantly, Bilsky’s essay demonstrates that Agranat succeeded in stretching law’s discursive range not through a “turn to narrative” or by appropriating representational techniques from literature, but by remaining firmly within the language of law itself. This fact alone reminds us of the capacity of legal discourse to accommodate the unprecedented. Specifically as a response to the atrocities of the Holocaust, one can point to a number of changes in the law’s idiom of criminality, the most important being the concept of genocide and the concept of crimes against humanity. It is not within the scope of these comments to review the evolution of these two concepts or to discuss the very substantial problems that attended the definition and prosecution of crimes against humanity at the International Military Tribunal in Nuremberg. But the importance of these concepts cannot be gainsaid, both in terms of the trials they have made possible, and in terms of their larger significance as tools of cultural meaning.[8] Here, then, we find the law, as a discourse, contributing to historical and cultural understanding, forging the terms and concepts that have helped fill the gap between language and deed caused by the Holocaust.

Yet Agranat’s juridical performance highlights another aspect of the plasticity of legal discourse. For Agranat was able to capture the dilemma of the survivor by finding a sophisticated conceptual vocabulary in the unlikeliest of places: administrative law. The idea of trying to represent the lived history of the Holocaust through this arid idiom sounds like a venture destined to grotesque failure; yet, as Bilsky observes, Agranat’s reliance on the language of public law peculiarly and unexpectedly succeeded at capturing, illuminating, and doing justice to a reality it was never intended to describe.

How are we to make sense of this surprising and anomalous success? On one level, we might be tempted to find some special affinity between the parlance of administrative law and the thoroughly bureaucratized nature of the Holocaust, inasmuch as it was through such an administrative argot that the killing was accomplished in the first place. Alternatively, one could challenge Bilsky’s account, insisting that, in fact, Agranat’s judgment succeeded at vindicating Kastner both legally and morally only by creating a new set of caricatures, replacing Halevi’s craven collaborationist with the intrepid Zionist resister, the picture of the survivors that was to be painted in broad strokes by the prosecution in the Eichmann case. Or finally, we might find in the person of Agranat the living exemplar of Nussbaum’s and Weisberg’s literate judge: the man or woman whose judgments are humanized by a life of deep reading.

In her excellent biography of Agranat, Pnina Lahav reminds us that as a young man, the future Chief Justice was attracted to a career in journalism and was a passionate reader of the social realist novels of Upton Sinclair.[9] Later in life, Agranat became a votary of Trollope, the great master of character and plot. As a jurist, Lahav notes that Agranat repudiated legal formalism, Finding his juridical voice in the more nuanced inflections of a sociological jurisprudence. Was his embrace of such a jurisprudence simply the byproduct of his voracious reading? Clearly such a crude argument betrays the very claims of scholars of the law and literature movement, as one of the central qualities of literature is the refusal to reduce the greatness of character to the formulaic and monocausal. Perhaps that, then, is the final lesson that the legal scholar and practitioner can extract from literature: that the ability of those like Agranat sensitively to “reach out across a chasm of suffering . . . that cannot be shared”[10] is a gift that resists simple explanation and emulation, at the same time that it constitutes the core of juridical greatness.

Lawrence Douglas is an associate professor in the department of law, jurisprudence, and social thought at Amherst College.


1 Richard Weisberg, The Failure of the Word (New Haven: Yale University Press, 1984), 178.

2 Martha Nussbaum, Law’s Knowledge (New York: Oxford University Press, 1990), 100.

3 Peter Goodrich, Legal Discourse (London: Macmillan, 1987).

4 Berel Lang, Act and Idea in the Nazi Genocide (Chicago: University of Chicago Press, 1990).

5 Theodor Adorno, “Engagement,” in Gesammelte Schriften, ed. Rolf Tiedmann (Frankfurt: Suhrkamp Verlag, 1974), 420.

6 Ian Buruma, The Wages of Guilt (New York: Farrar, Straus, and Giroux, 1994), 153.

7 Michael Marrus, “History and the Holocaust in the Courtroom” (unpublished manuscript).

8 For a longer discussion of this matter, see Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven: Yale University Press, 2001).

9 Pnina Lahav, Judgment in Jerusalem (Berkeley: University of California Press, 1997).

10 Lawrence Langer, The Holocaust and the Literary Imagination (New Haven: Yale University Press, 1975), 29.