When I was working on my doctorate at McMaster, the department began hosting yearly conferences in legal theory. This was part of Wil Waluchow’s chair in legal philosophy: he had a regular endowment to sponsor a yearly conference and bring in guest speakers to discuss various issues in the theory of law.
At the conference a couple of years ago, Ken Himma was one of the delegates, and his presentation discussed an idea that I was very glad to hear was taken seriously at least sometimes. In my experience working and getting to know the legal theorists among McMaster’s faculty and students, it seemed that one point was always taken as a basic given: that a prerequisite to there being a legal system at all is a duty of all citizens to obey the law. The literature on civil disobedience was largely focussed on finding the conditions in which the duty to obey the law no longer applied. The examples often referenced were always rather extreme; violations in law of basic points of justice, like Jim Crow and the Nazi regime. Himma’s presentation questioned whether there was a duty to obey the law at all.
I found it so refreshing. There are a lot of complicated ideas in legal theory about the relation of law and morality that it’s difficult to plow through the details of it. The distinctions seem to get smaller and smaller. First learning about the field through my interactions with Waluchow and his students, I now know the traditional Hart-Fuller debate and Hart-Dworkin debate, the Inclusive vs Exclusive legal positivism debate, each of which set the conditions for how North American legal theory has developed, well enough to teach them.* Even so, one of my methods of teaching them would be to focus on just how minor the differences between many of the sides really are. One commonality among all these sides was the premise that because the law was law, you had a duty to obey it that could only be broken in extreme circumstances.
* While exposing myself to the central works of this tradition through interaction with North America’s leading legal theorists at these conferences, teaching introductory courses on the subjects as a tutorial leader, and going through the central books of the tradition, I don’t keep up with the new legal theory scholarship in enough detail to publish on it at the moment. For one thing, I find the official style of discussion too confrontational, and almost nitpicking in its attention to detail and its conceptual distinctions that seem more fine than reality itself. For another, for a university with a very well-endowed chair in legal theory, McMaster keeps very few legal theory journals in their own libraries. The folks I saw using inter-library loans most often for their research material were the legal theorists: philosophy of law journals were all at McMaster’s partner libraries, but rarely its own.
I don’t know how much influence Hannah Arendt on the development of these debates, but I’m not sure if there was all that much. Because one element of her analysis of Adolf Eichmann is that he was the very model of a law-abiding citizen. This analysis also connects clearly to a point from Origins of Totalitarianism, putting another nail to the idea that Eichmann in Jerusalem is a break from the earlier work. In Origins, she described how totalitarian legal regimes function not through legislation (legislation is treated as superfluous in such regimes; for example, Hitler never repealed the Weimar constitution, so even under the Nazi party, Germany still had a federal democratic constitution), but through the expressions of the leader.
|Heinrich Himmler desperately hoped to put a respectable|
face on Nazi Germany at the end of the war. Note the Death's
Head logo at the centre of his cap. I'm not sure if this plan
had much chance of success.
There’s a section describing how Eichmann, in the last months of the war when Nazi Germany’s defeat was pretty much certain, doubled down on deportations to the death camps. Heinrich Himmler had given explicit orders to slow down and eventually halt the deportations, part of a delusional plan to secure the trust of the Allies. Arendt speculates, based on Himmler’s written official and personal communiqués, that he thought he could secure a negotiated end to the war if they committed just a little less genocide than they actually did. This was also the plan of the old guard of the German army, who actually thought they could hold onto chunks of Poland, all of Austria, and the Sudetenland if they could depose Hitler and put a respectable face on the war.
Yet Eichmann disobeyed Himmler’s orders, because his orders were not the law. Arendt theorized in Origins that totalitarian political theory puts not legislation, but the personal will of the Leader at the origin of laws. Eichmann seems to have understood Arendt’s theory before she had even written it, because he didn’t consider Himmler’s orders to be law. He knew and expressed in his trial that the law of Nazi Germany was the will of the Leader. Because he knew the Leader wanted the death camps to continue action, he sped up his deportations. Hitler’s will was law, and a good citizen follows all the laws of his country.
Eichmann was nothing if not the very model of a good, law-abiding citizen.