For ease of reading I have split the “Frequent Reactions to Arendt’s “Auschwitz on Trial” into several sections. You can read the first (questions 1–5) responses here.
Didn’t the people on trial know better?
It seems to be the case that the people on trial didn’t think about whether or not it was wrong to do these things. See page 237 where Arendt states that these folks didn’t appear to give the matter a second thought.
Can we imagine living in a society where the apparent majority, or the popular sentiment, seems to believe that their political system’s laws may have problems but they’re not criminal?
Maybe folks in Nazi Germany thought that some laws were bad, but not the laws that made being Jewish a crime.
These are both speculations and speculating can be easier than grappling with the text at hand.
It seems to me that Arendt is arguing that what is truly dangerous is not only that a government can enact laws that require its citizens to do what would be considered criminal acts in other comparable political contexts, but also that this situation can manifest when enough people cease to think about the matters.
If we look at page 253 we’ll see that Arendt faults the men on trial for ceasing to think and thereby allow their moods to dictate how they will behave. “[W]hat is left of the humanity of a man who has completely yielded up to [their moods]?” she asks.
What about this “little man” theory?
Among the defenses put forward for the men on trial in this essay there is the argument that the “desk murders” are the real villains. If these higher-ups had not created the orders, these “small frys” would not have done these things.
The Bogers of this trial are arguing that they were simply following orders, but as we read (especially from page 250 forward) we learn that the things that these men did were not simply following orders.
In addition to following the orders that required them to exterminate these people, the men on trial also began to do as they pleased with the people they were about to exterminate. The trial here is not simply about their participation in genocide, but also for the criminal acts they performed while performing their duties.
What is truly frustrating is that it is not clear whether or not there were existing laws, during the time period when these heinous acts occurred, that these men could be held accountable for breaking. In part, the crimes committed at Auschwitz—and wherever the Final Solution was effected—were unprecedented. Is there something to be said for reaching a moment when technologies make the execution of existing laws obsolete because the unforeseen technologies are now capable of creating effects that the original law makers could not possibly imagine?
The question of whether or not the “desk murderers” are guiltier than the “small frys”?
On 241 Arendt is quoting what the court in Jerusalem, during the Eichmann trial, stated about the execution of the “Final Solution to the Jewish Problem.” And suggests one could be inclined to agree with that decision based on what we see at the Auschwitz trial.
But a little further down the page is a significant passage:
“What stands revealed in these trials is not only the complicated issue of personal responsibility but naked criminal guilt; and the faces of the those who best […] to obey criminal orders are still very different from those who […] did not so much obey orders as do with their doomed victims as they pleased.”
It seems Arendt is pointing out that “guiltier” doesn’t make sense: one is either guilty of committing a crime or they are not. The severity of the crime may be different but the convicted are guilty regardless of the amplitude of the crime committed.
The question of the truth in the trial (page 242)
Arendt begins that paragraph by stating that at the end of the trial we realize “how much damage to justice was done […] because the distinctive line between the two different offenses had become blurred.”
She’s pointing out (at the top of 242) that the folks on trial here are faced with two different offenses: “The prosecution had indicted for ‘murder and complicity in murder of individuals,’ together with ‘mass murder and complicity in mass murder.'”
The problem all these Nazi trials reveal is that there are no laws that we can point to and state that the person charged is guilty of these infractions against the law. Until these trials there had never been a law against citizens performing murder as agents of a government and there had never been a situation where an officer of the government had to perform mass murder as part of their daily functions.
On the one hand, these people are clearly guilty of something, but on the other hand, these same people can’t be found guilty of breaking a law that didn’t exist before they committed the crime. It was literally not a crime to commit mass murder.
Arendt states on 243, “What is most difficult to imagine in retrospect is the ever-present atmosphere of violent death [at Auschwitz]; not even on the battlefield is death such a certainty and life so completely dependent on the miraculous.”
She then writes that the lower ranking officers who ran the death camps were also reasonably afraid that they would also be murdered in the camps in order to cover-up the crimes they had been ordered to commit.
Sure, they had that reasonable fear, but, “they must have reckoned this danger less formidable than what they might face on the Eastern Front [i.e., they could have volunteered to fight the Soviets on the battlefield], for hardly any doubt remains that many of them could have voluntarily transferred from the camp to front-line duty.”
Because of these unprecedented realities of living in the contemporary world (remember, the penal code was written in 1871), “the old penal code had utterly failed to take into account […] the everyday reality of Nazi Germany in general and of Auschwitz in particular.”
To the objection that resistance from the German people and Auschwitz camp agents would mean death to the resistors.
If you’re suggesting that the folks on trial here were unable to act for fear of death, consider the case of Erwin Schulz (page 239). Schulz told his superiors that he couldn’t handle this kind of work and was reassigned elsewhere and promoted.
Allow me to quote Arendt’s longtime friend, Mary McCarthy, “If somebody points a gun at you and says, ‘Kill your friend or I will kill you,’ he is tempting you, that is all.”