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[ superstite] in every sense. But this also means that his testimony has nothing to do with the acquisition of facts for a trial (he is not neutral enough for this, he is
not a testis). In the final analysis, it is not judgment that matters to him, let alone pardon. “I never appear as judge”; “I do not have the authority to grant pardon.
. . . I am without authority” (ibid.: 77, 236). It seems, in fact, that the only thing
that interests him is what makes judgment impossible: the gray zone in which
victims become executioners and executioners become victims. It is about this
above all that the survivors are in agreement: “No group was more human than
any other” (ibid.: 232). “Victim and executioner are equally ignoble; the lesson
of the camps is brotherhood in abjection” (Rousset, cf. Levi 1997: 216).
Not that a judgment cannot or must not be made. “If I had had Eichmann
before me, I would have condemned him to death” (ibid.: 144). “If they have
committed a crime, then they must pay” (ibid.: 236). The decisive point is sim-
ply that the two things not be blurred, that law not presume to exhaust the ques-
tion. A nonjuridical element of truth exists such that the quaestio facti can never be reduced to the quaestio iuris. This is precisely what concerns the survivor:
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everything that places a human action beyond the law, radically withdrawing it
from the Trial. “Each of us can be tried, condemned and punished without even
knowing why” (ibid.: 75).
1.4. One of the most common mistakes—which is not only made in dis-
cussions of the camp—is the tacit confusion of ethical categories and juridical
categories (or, worse, of juridical categories and theological categories, which
gives rise to a new theodicy). Almost all the categories that we use in moral and
religious judgments are in some way contaminated by law: guilt, responsibil-
ity, innocence, judgment, pardon. . . . This makes it difficult to invoke them
without particular caution. As jurists well know, law is not directed toward the
establishment of justice. Nor is it directed toward the verification of truth. Law
is solely directed toward judgment, independent of truth and justice. This is
shown beyond doubt by the force of judgment that even an unjust sentence car-
ries with it. The ultimate aim of law is the production of a res judicata, in which the sentence becomes the substitute for the true and the just, being held as true
despite its falsity and injustice. Law finds peace in this hybrid creature, of which
it is impossible to say if it is fact or rule; once law has produced its res judicata, it cannot go any further.
In 1983, the publisher Einaudi asked Levi to translate Kafka’s The Trial. In-
finite interpretations of The Trial have been offered; some underline the novel’s prophetic political character (modern bureaucracy as absolute evil) or its theological dimension (the court as the unknown God) or its biographical meaning
(condemnation as the illness from which Kafka believed himself to suffer). It
has been rarely noted that this book, in which law appears solely in the form of
a trial, contains a profound insight into the nature of law, which, contrary to
common belief, is not so much rule as it is judgment and, therefore, trial. But if
the essence of the law—of every law—is the trial, if all right (and morality that
is contaminated by it) is only tribunal right, then execution and transgression,
innocence and guilt, obedience and disobedience all become indistinct and lose
their importance. “The court wants nothing from you. It welcomes you when
you come; it releases you when you go.” The ultimate end of the juridical regula-
tion is to produce judgment; but judgment aims neither to punish nor to extol,
neither to establish justice nor to prove the truth. Judgment is in itself the end
and this, it has been said, constitutes its mystery, the mystery of the trial.
One of the consequences that can be drawn from this self-referential nature
of judgment—and Sebastiano Satta, a great Italian jurist, has done so—is that
punishment does not follow from judgment, but rather that judgment is itself
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punishment ( nullum judicium sine poena). “One can even say that the whole pun-
ishment is in the judgment, that the action characteristic of the punishment—
incarceration, execution—matters only insofar as it is, so to speak, the carrying
out of the judgment” (Satta 1994: 26). This also means that “the sentence of ac-
quittal is the confession of a judicial error,” that “everyone is inwardly innocent,”
but that the only truly innocent person “is not the one who is acquitted, but
rather the one who goes through life without judgment” (ibid.: 27).
1.5. If this is true—and the survivor knows that it is true—then it is possible
that the trials (the twelve trials at Nuremberg, and the others that took place in
and outside German borders, including those in Jerusalem in 1961 that ended
with the hanging of Eichmann) are responsible for the conceptual confusion
that, for decades, has made it impossible to think through Auschwitz. Despite
the necessity of the trials and despite their evident insufficiency (they involved
only a few hundred people), they helped to spread the idea that the problem of
Ausch witz had been overcome. The judgments had been passed, the proofs of
guilt definitively established. With the exception of occasional moments of lu-
cidity, it has taken almost half a century to understand that law did not exhaust
the problem, but rather that the very problem was so enormous as to call into
question law itself, dragging it to its own ruin.
The confusion between law and morality and between theology and law has
had illustrious victims. Hans Jonas, the philosopher and student of Heidegger
who specialized in ethical problems, is one of them. In 1984, when he received
the Lucas Award in Tübingen, he reflected on the question of Auschwitz by pre-
paring for a new theodicy, asking, that is, how it was possible for God to tolerate
Auschwitz. A theodicy is a trial that seeks to establish the responsibility not of
men, but of God. Like all theodicies, Jonas’s ends in an acquittal. The justifica-
tion for the sentence is something like this: “The infinite (God) stripped himself
completely, in the finite, of his omnipotence. Creating the world, God gave it
His own fate and became powerless. Thus, having emptied himself entirely in
the world, he no longer has anything to offer us; it is now man’s turn to give.
Man can do this by taking care that it never happens, or rarely happens, that
God regrets his decision to have let the world be.”
The conciliatory vice of every theodicy is particularly clear here. Not only
does this theodicy tell us nothing about Auschwitz, either about its victims or ex-
ecutioners; it does not even manage to avoid a happy ending. Behind the power-
lessness of God peeps the powerlessness of men, who continue to cry “May that
never happen again!” when it is clear that “that” is, by now, everywhere.
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1.6. The concept of responsibility is also irremediably contaminated by law.
Anyone who has tried to make use of
it outside the juridical sphere knows this.
And yet ethics, politics, and religion have been able to define themselves only
by seizing terrain from juridical responsibility—not in order to assume another
kind of responsibility, but to articulate zones of non-responsibility. This does
not, of course, mean impunity. Rather, it signifies—at least for ethics—a con-
frontation with a responsibility that is infinitely greater than any we could ever
assume. At the most, we can be faithful to it, that is, assert its unassumability.
The unprecedented discovery made by Levi at Auschwitz concerns an area
that is independent of every establishment of responsibility, an area in which
Levi succeeded in isolating something like a new ethical element. Levi calls it the
“gray zone.” It is the zone in which the “long chain of conjunction between vic-
tim and executioner” comes loose, where the oppressed becomes oppressor and
the executioner in turn appears as victim. A gray, incessant alchemy in which
good and evil and, along with them, all the metals of traditional ethics reach
their point of fusion.
What is at issue here, therefore, is a zone of irresponsibility and “impotentia
judicandi” (Levi 1989: 60) that is situated not beyond good and evil but rather, so to speak, before them. With a gesture that is symmetrically opposed to that
of Nietzsche, Levi places ethics before the area in which we are accustomed to
consider it. And, without our being able to say why, we sense that this “before”
is more important than any “beyond”—that the “underman” must matter to
us more than the “overman.” This infamous zone of irresponsibility is our First
Circle, from which no confession of responsibility will remove us and in which
what is spelled out, minute by minute, is the lesson of the “terrifying, unsayable
and unimaginable banality of evil” (Arendt 1992: 252).
1.7. The Latin verb spondeo, which is the origin of our term “responsibility,”
means “to become the guarantor of something for someone (or for oneself) with
respect to someone.” Thus, in the promise of marriage, the father would utter
the formula spondeo to express his commitment to giving his daughter as wife to
a suitor (after which she was then called a sponsa) or to guarantee compensation if this did not take place. In archaic Roman law, in fact, the custom was that
a free man could consign himself as a hostage—that is, in a state of imprison-
ment, from which the term obligatio derives—to guarantee the compensation
of a wrong or the fulfillment of an obligation. (The term sponsor indicated the
person who substituted himself for the reus, promising, in the case of a breach of contract, to furnish the required service.)
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The gesture of assuming responsibility is therefore genuinely juridical and
not ethical. It expresses nothing noble or luminous, but rather simply obliga-
tion, the act by which one consigned oneself as a prisoner to guarantee a debt
in a context in which the legal bond was considered to inhere in the body of the
person responsible. As such, responsibility is closely intertwined with the con-
cept of culpa that, in a broad sense, indicates the imputability of damage. (This is why the Romans denied that there could be guilt with respect to oneself: quod
quis ex culpa sua damnum sentit, non intelligitur damnum sentire: the damage that one causes to oneself by one’s own fault is not juridically relevant.)
Responsibility and guilt thus express simply two aspects of legal imputabil-
ity; only later were they interiorized and moved outside law. Hence the insuffi-
ciency and opacity of every ethical doctrine that claims to be founded on these
two concepts. (This holds both for Jonas, who claimed to formulate a genuine
“principle of responsibility” and for Lévinas, who, in a much more complex
fashion, transformed the gesture of the sponsor into the ethical gesture par excellence.) This insufficiency and opacity emerges clearly every time the borders that
separate ethics from law are traced. Let us consider two examples, which are very
far from each other as to the gravity of the facts they concern but which coincide
with respect to the distinguo they imply.
During the Jerusalem trial, Eichmann’s constant line of defense was clearly
expressed by his lawyer, Robert Serviatus, with these words: “Eichmann feels
himself guilty before God, not the law.” Eichmann (whose implication in the
extermination of the Jews was well documented, even if his role was probably
different from that which was argued by the prosecution) actually went so far
as to declare that he wanted “to hang himself in public” in order to “liberate
young Germans from the weight of guilt.” Yet, until the end, he continued to
maintain that his guilt before God (who was for him only a höherer Sinnesträger,
a higher bearer of meaning) could not be legally prosecuted. The only possible
explanation for this insistence is that, whereas the assumption of moral guilt
seemed ethically noble to the defendant, he was unwilling to assume any legal
guilt (although, from an ethical point of view, legal guilt should have been less
serious than moral guilt).
Recently, a group of people who once had belonged to a political organi-
zation of the extreme Left published a communiqué in a newspaper, declaring
political and moral responsibility for the murder of a police officer commit-
ted twenty years ago. “Nevertheless, such responsibility,” the document stated,
“cannot be transformed . . . into a responsibility of penal character.” It must
be recalled that the assumption of moral responsibility has value only if one is
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777
ready to assume the relevant legal consequences. The authors of the commu-
niqué seem to suspect this in some way, when, in a significant passage, they
assume a responsibility that sounds unmistakably juridical, stating that they
contributed to “creating a climate that led to murder.” (But the offense in ques-
tion, the instigation to commit a crime, is of course wiped out.) In every age,
the gesture of assuming a juridical responsibility when one is innocent has been
considered noble; the assumption of political or moral responsibility without
the assumption of the corresponding legal consequences, on the other hand, has
always characterized the arrogance of the mighty (consider Mussolini’s behavior,
for example, with respect to the case of Giacomo Matteotti, the member of the
Italian parliament who was assassinated by unknown killers in 1924). But today
in Italy these models have been reversed and the contrite assumption of moral
responsibilities is invoked at every occasion as an exemption from the responsi-
bilities demanded by law.
Here the confusion between ethical categories and juridical categories (with
the logic of repentance implied) is absolute. This confusion lies at the origin of
the many suicides committed to escape trial (not only those of Nazi criminals),
in which the tacit assumption of moral guilt attempts to compensate for legal
guilt. It is worth remembering that the primary responsibility for this confusion
lies not in Catholic doctrine, which includes a sacrament whose funct
ion is to
free the sinner of guilt, but rather in secular ethics (in its well-meaning and dom-
inant version). After having raised juridical categories to the status of supreme
ethical categories and thereby irredeemably confusing the fields of law ethics,
secular ethics still wants to play out its distinguo. But ethics is the sphere that recognizes neither guilt nor responsibility; it is, as Spinoza knew, the doctrine
of the happy life. To assume guilt and responsibility—which can, at times, be
necessary—is to leave the territory of ethics and enter that of law. Whoever has
made this difficult step cannot presume to return through the door he just closed
behind him.
1.8. The extreme figure of the “gray zone” is the Sonderkommando. The SS
used the euphemism “special team” to refer to this group of deportees responsible
for managing the gas chambers and crematoria. Their task was to lead naked pris-
oners to their death in the gas chambers and maintain order among them; they
then had to drag out the corpses, stained pink and green by the cyanotic acid,
and wash them with water; make sure that no valuable objects were hidden in the
orifices of the bodies; extract gold teeth from the corpses’ jaws; cut the women’s
hair and wash it with ammonia chloride; bring the corpses into the crematoria
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and oversee their incineration; and, finally, empty out the ovens of the ash that
remained. Levi writes:
Concerning these squads, vague and mangled rumors already circulated among
us during our imprisonment and were confirmed afterward. . . . But the intrinsic
horror of this human condition has imposed a sort of reserve on all the testimony,
so that even today it is difficult to conjure up an image of “what it meant” to
be forced to exercise this trade for months. . . . One of them declared: “Doing
this work, one either goes crazy the first day or gets accustomed to it.” Another,
though: “Certainly, I could have killed myself or got myself killed; but I wanted
to survive, to avenge myself and bear witness. You mustn’t think that we are
monsters; we are the same as you, only much more unhappy.”. . . One cannot
expect from men who have known such extreme destitution a deposition in the