Roger Berkowitz

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Hannah Arendt approaches human rights as someone who lived through their failure in the first half of the 20th century. A German Jew, Arendt understood antisemitism, experienced the denationalization of the Jews in Germany, and witnessed how the world and even the diaspora Jewish community largely ignored the plight of European Jewry. Arendt also saw how other minority peoples in Europe - Germans in Russia, Slovaks in Czechloslavakia, muslims in Yugoslavia, Gypsies, and many others - were systematically denaturalized, persecuted, and killed - all, as she emphasized, within the strictures of national and international law. For Arendt, the failure of human rights is a fundamental fact of modern times.

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In Bertold Brecht’s poem “To Posterity,” the poet laments:

Truly, I live in dark times!
An artless word is foolish. A smooth forehead
Points to insensitivity. He who laughs
Has not yet received
The terrible news.
What times are these, in which
A conversation about trees is almost a crime
For in doing so we maintain our silence about so much wrongdoing!
And he who walks quietly across the street,
Passes out of the reach of his friends
Who are in danger?

Brecht’s poem inspires the title of one of Hannah Arendt’s lesser read books, Men in Dark Times. For Arendt, dark times are not limited to the tragedies of the 20th century; they are not even a rarity in the history of the world. Darkness, as she would have us understand it, does not name the genocides, purges, and hunger of a specific era. Instead, darkness refers to the way these horrors appear in public discourse and yet remain hidden. As Arendt observes, the tragedies to which Brecht’s poem refers were not shrouded in secrecy and mystery, yet they were darkened by the “highly efficient talk and double-talk of nearly all official representatives who, without interruption and in many ingenious variations, explained away unpleasant facts and justified concerns.” Similarly today, the various outrages--environmental, economic, and governmental--that confrontus daily are hidden in plain sight. Darkness, for Arendt, names the all-too-public invisibility of inconvenient facts, and not simply the horror of the facts themselves.

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Fordham University Press has just put out Thinking in Dark Times: Hannah Arendt on Ethics and Politics, a collection of papers from a conference convened at Bard College to mark Arendt’s hundredth birthday. I put six questions to Roger Berkowitz, a professor at Bard and academic director of the Hannah Arendt Center for Ethical and Political Thinking, about issues addressed in the book.

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“The true predicaments of our time.” Hannah Arendt wrote, “will assume their authentic form only when totalitarianism has become a thing of the past.” The totalitarianisms in Germany and the Soviet Union were only symptoms of these true predicaments, of what Arendt early on calls the mass society characterized by “organized loneliness.” Later, covering the trial of Adolf Eichmann, she would come to see that the bond between totalitarianism and loneliness is the phenomena of thoughtlessness.

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- Revised version, originally published in The Graduate Review (cont. as Critical Sense) v. 1, #1 (1994)

In his book  Justice Accused,1 Robert Cover explores how and why ante-bellum Federal judges who were opposed to slavery consistently upheld the constitutionality of the Fugitive Slave Act of 1850.2  These judges claimed that despite their strong personal convictions that slavery was immoral and wrong, they were constrained by the U.S. Constitution to declare the Act constitutional.3  As Cover convincingly demonstrates, however, the arguments for the constitutionality of the Act of 1850 were not widely perceived to be ironclad, even in 1850.4 Nevertheless, the judges, at least some of whom were sincere in their opposition to slavery, upheld the Act.

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- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

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