Transformative Justice: Israeli Identity on Trial

Chapter 2. From Faust to Kastner: The Judge as Storyteller

41 Chapter 2 From Faust to Kastner The Judge as Storyteller Political trials signal points of rupture in the life of a state. This is especially apparent in “transitional trials” when a new regime takes the former regime to trial for its actions.1 But such rupture is also present when a fundamental challenge to the basic values of society as they are embodied in its laws is raised by an oppositional group.2 At such times the parties to the debate (either the authorities or the opposition) are tempted to bring their controversies to court since it offers a “known practice—a stable format, and so a way of interpreting events in a world temporarily become ambiguous.”3 The hope that the law will supply clear rules to resolve the dispute proves to be futile in many cases because in political trials the legitimacy of the laws themselves often becomes the topic of contestation. Thus, it has been noted by scholars of political trials that the courts’ rhetoric stressing continuity in the application of the law and strict adherence to the “rule of law” is often a facade that masks the crucial way in which political trials differ from ordinary ones. This rhetoric tries to hide the fact that in political trials the “law” itself and the societal values that it embodies are being radically challenged. Political trials can be described as an “identity intersection” at which society has to decide its future course. Such intersections call for a reflective judgment, for judging outside the framework of predetermined rules. However, when these conflicts are channeled into the courtroom, the transitional character of the law tends to be obscured by the rhetoric of continuity and precedents. These difficulties are multiplied when a political trial is also a historical trial, that is, a trial that is expected to illuminate the meaning of a historical period, and are especially compounded when the period is that of the Holocaust. Hannah Arendt, borrowing an expression from Bertold Brecht, described that period as “dark times,” by which she meant not only the monstrosity of the acts and the despair of the victims but the loss of the illuminating light of the public sphere, a loss that produced a crisis of understanding.4 She links this epistemic crisis to a failure of existing modes of explanation (of the social sciences as well as canonical texts of religion and morality) to help us comprehend the events.5 What is left, she argues, are the stories of individual persons who can kindle some light and illuminate the period. The Kastner trial is a vivid demonstration of this crisis of comprehension that the Holocaust produced in law and morality. Judge Benjamin Halevi had to make sense of the new kind of collaboration that emerged under the Nazi regime. Existing legal categories such as “treason ” or “complicity in murder” were ill fit to illuminate this phenomenon because both assume the actor’s intention to produce harm, an intention that was entirely lacking in the Jewish leaders’ acts of collaboration and cooperation with the Nazis. Since at the time of the trial new legal categories had yet to be developed, the judge had to try to comprehend Kastner’s actions without clear guidelines from the law. Moreover, Kastner’s actions also posed a problem for conventional morality since they had been guided by noble motives and yet seemed to have wrought more harm than if he had refrained from action altogether . It is not surprising, therefore, to find that the judge devoted his main intellectual efforts to weaving the facts of the affair into a coherent story about good and evil. He provided the Israeli public with a black and white narrative about the behavior of Jewish leaders during the Holocaust, a narrative that culminated in his damning statement that Kastner had sold his soul to the devil. Thus it came about that the subversive narrative of a defense lawyer, who cleverly turned a criminal trial against his client into a vehicle to embarrass the political authorities, encountered a sympathetic judge, who adopted this version of history and gave it the stamp of approval of a court of law. In this sense we can describe the Kastner trial as a political trial in which the risk to the authorities was fully realized, a phenomenon that signals a working democracy according to Kirschheimer’s theory.6 How this story was produced and how it was transformed into a paradigm of the evil...