Many commentators, including distinguished historians, think that Arendt got Eichmann completely wrong – far from being banal, he was a fanatical Nazi. This chapter addresses those criticisms. It argues that if the critics are right, it would damage some but not all of Arendt’s conclusions. It shows that three of the four most important criticisms rest on misreadings or mistakes. The fourth, argued by Eichmann scholar Bettina Stangneth, is that evidence unavailable to Arendt when she wrote proves that she was wrong about Eichmann. The chapter closely examines Stangneth’s arguments, and it defends Arendt’s banality conjecture as an equally plausible interpretation of Stangneth’s historical discoveries. It concludes by explaining how the banality-of-evil thesis sets the agenda for Arendt’s subsequent writing on moral philosophy and legal theory.

This is the first of six chapters on Arendt’s contributions to international legal theory. In The Origins of Totalitarianism, Arendt called for “a new law on earth,” but she never explains its contents; these six chapters do so. The present chapter begins with the issue of statelessness, one of her central preoccupations. Arendt believed that human rights law offers no real protection to the stateless, because they lack “the right to have rights,” by which she means the legal right of membership in a political community that protects their human dignity. The chapter analyzes “the right to have rights” and Arendt’s relational conception of human dignity. It then unpacks her views on state sovereignty, arguing that they resemble contemporary theories of sovereignty as responsibility. It explains what Arendt means by the “idea of humanity” reflected in international law, and why that idea requires courts to pass judgment on crimes against humanity.

When inner dialogue concerns moral choices, we call it “conscience” – dialogue with an internalized other who witnesses what we do and judges us. The chapter elaborates on this theme. It then turns to Arendt’s concern that the quest for inner harmony the motivation of morality may lead us to withdraw from the messy fight against evil for fear of getting our hands dirty. This chapter rebuts this argument. In the penultimate section of the chapter, it analyzes a well-known letter Arendt wrote to Gershom Scholem about her shift from “radical evil” to “banality of evil.” Arendt invokes several different conceptions of radical evil without marking the differences; distinguishing them yields an explanation of her shift and an account of banality of evil. A postscript offers a reading of Eichmann’s prison memoir to ask whether he did think morally, as he claims. The answer is no; seeing why reinforces Arendt’s diagnosis of Eichmann’s banality.

This chapter is the first of three on Arendt’s moral philosophy, which focuses on moral judgment and its connection to thinking from another’s point of view. Arendt draws central ideas about morality from Kant’s theory of aesthetic judgment – not because morality is an aesthetic matter, but because logical features Kant identified in aesthetic judgments are properties of moral judgments as well. Kant argued that judgments of beauty are objective, even though they cannot be proven; that they concern particulars, without relying on general rules, what Arendt calls “banisters”; and that we form moral judgments in common with others. Arendt maintains that the same is true of moral and political judgments. However, she also believes that “the invocation of allegedly moral principles for matters of everyday conduct is usually a fraud”; morality matters only “in times of crises.” This chapter disagrees, and argues that moral judgments “without banisters” matter throughout our moral life.

This conclusion pulls together the previous chapters. Arendt’s moral philosophy is, first and foremost, a moral psychology that turns on the concepts of thinking, judging, and common sense, and the catastrophic consequences of their absence. Its normative core lies in respect for human dignity, which she roots in the human conditions of plurality and natality. The chapter explains why Arendt’s early ambivalence about morality rests on mistakes. It then returns to four issues catalogued in Chapter 1: the problems of incongruity between person and act; the problem of principles and particulars; the problem of judgment; and the problem of moral realism. The chapter summarizes and expands on the solutions Arendt offers to these problems. It concludes by explaining the connections between Arendt’s moral thought and her ideas about international law. Holding perpetrators accountable for core crimes is one crucial way of acknowledging human dignity and of realizing the “idea of humanity.” Although Arendt is objectionably purist about the mission of international criminal justice, her contributions to its theory are impressive. They include a deep analysis of the crime of genocide, a critique of sovereign immunity, a recognition that states can be criminals, and an understanding of why some crimes are of international concern.

This chapter discusses the importance of the audience in research on forensic performance. “Forensic performance” is taken here to include the dramaturgical techniques that inform Erving Goffman’s account of “the presentation of self in everyday life,” extending not only to ways of affirming one’s own position but also to ways of portraying the various figures or propositions in a legal dispute. These practices include the use of speech, gesture, and ritual to convey arguments, embody or criticize legal authority, and impersonate a party, witness, or any other participant in an actual or imagined scenario. The audience includes those in the courtroom and imagined observers in the larger public. The chapter begins by examining criticisms of forensic performance in the early modern period and then turns to the use of cross-examination in the nineteenth century. Finally, the discussion considers judges’ behavior, particularly when they encourage the audience to laugh in response to their questions. By doing so, judges merge the role of an impartial interlocutor attending to policy questions and the role of an individual to whom the law might apply.

Literature in the legal humanities has begun to turn toward performance as a new site of analysis: as source, representation, and intervention. From Law and Performance (2018) to Law as Performance (2022), this belated comparison has garnered increasing traction. But methods from dance and performance studies, those wayward disciplines where corporeality supersedes the literary, still make only passing appearances. The repercussions, however, exceed the methodological toward the most material. This chapter underscores the consequences for this absence by centring the lone figure, “Naked Athena,” as a femme body in protest whose choreographic aesthetic of whiteness allowed particular flexibility under the law. Through her balletic performance of resistance, themes of discipline, elegance, and decorum swirl against the indecent, vulgar, and obscene labels afforded other protesters in the same scene. Motivated by this framing, I focus us toward identification of the publicly exposed body as righteously revealed or promiscuously pornographic, an aesthetic distinction theorized within art history as the difference between nakedness and nudity yet left ambiguous in legal terms.

Law, with its seemingly endless paperwork, is almost overwhelmingly textual. From contracts to briefs to opinions to treatises, law lives in its texts. Simultaneously, law requires performances to produce authenticity and authority. Witness testimonies, pleadings, and trials all enact the law through participants’ bodies. There is no law without text. There is no law without performance. Legal texts and performances produce and reproduce each other: Legal texts record or script legal performances; legal performances generate or stage legal texts. Because law entwines text and performance, this chapter considers the law’s material textuality and its theatricality in tandem by probing how law brings performance to book. Drawing on theater studies and the history of dramatic texts, I offer methods for reading legal texts as scripts that precede or follow legal performances. Examples from Anglo-American law reveal that legal documents’ typographical conventions uncover law’s reliance on performance and its anxiety about deviating from textuality. More sophisticated legal attention to the relationship between text and performance would better serve law and, more importantly, justice.

Arendt asks, “Is our ability to judge, to tell right from wrong, beautiful from ugly, dependent upon our faculty of thought?” Her answer is yes, and this chapter argues that this thinking–judging connection is central to her moral philosophy. She derives the connection indirectly, by reflecting on three Socratic propositions: that thinking consists in the back and forth of inner dialogue; that it is better to suffer injustice than to commit it; and that wrongdoing leads to inner disharmony. The chapter examines these, and from this examination it reconstructs Arendt’s argument for the thinking–judging connection. The chapter connects Arendt's and Kant's conception of “enlarged thinking” with Adam Smith’s sympathy-based moral theory. It spells out additional implications that Arendt never drew explicitly, and concludes by comparing Arendt’s views with those of Stuart Hampshire, who believes that inner conflict is in fact “the best condition of mankind,” contrary to the Socratic and Aristotelian moral psychology – an important corrective that requires modification to Arendt’s view.

My aim, in this response to Peters’ timely and powerful work, is both to acknowledge its transformative force for legal studies and at the same time to introduce distinctions that may be of value in distinguishing discussions of the ‘theatricality’ of law from the emergence of a modern understanding of ‘theatre’ as the production of coherent and powerful fictions enacted by characters. The early modern period (1500–1650) is described, in chapter 5 of Peters’ study, as ‘the age of theatre’. If Peters shows how judicial proceedings draw on the performative aspects of rhetoric and theatre, my response aims to show how, in the ‘age of theatre’, theatre’s distinctive fictionality drew on the fiction-generating power of probable argument and inferential reasoning, as taught in legal rhetoric.

What prompted Arendt’s investigations of moral and legal judgment was the trial of Adolf Eichmann for crimes of the Holocaust. Her controversial view is that Eichmann represented the “banality of evil,” by which she means “the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology, or ideological conviction in the doer, whose only personal distinction was a perhaps extraordinary shallowness.” This chapter explains what Arendt means by “banality of evil” and why it led to confusions. It reviews the evidence by which she supported her thesis of Eichmann’s banality. The chapter points out several large and challenging philosophical questions the thesis raises. The chapter’s final section connects her concept of the banality of evil to her reflections on kitsch in aesthetics, as well as to Kant’s “maxims of common human understanding.” Kant’s theory of aesthetic judgment turns out to be central to Arendt’s approach to moral judgment.