Law, Culture and the Humanities2016, Vol. 12(3) 496 –508

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LAW, CULTURE AND

THE HUMANITIES

Troubling Humanities: Literary Jurisprudence and Crimes Against Humanity in Ishiguro’s Remains of the Day and McEwan’s Atonement

Kelly M. RichUniversity of Pennsylvania, USA

AbstractThis commentary poses the question of the human by asking how the “human” of crimes against humanity relates to the “human” of the humanities. It does so by first considering Hannah Arendt’s Eichmann in Jerusalem (1961) as a text that establishes the representational aporias of banality and ineffability raised by crimes against humanity, not just through its analytical content but also through the use of literary form. The commentary then offers a close reading of two novels, Kazuo Ishiguro’s The Remains of the Day (1989) and Ian McEwan’s Atonement (2001), tracking the ways their “literary jurisprudence,” or engagement with problems of judgment, emerge from the representational cruxes located by Arendt. Rather than read these literary texts as desirable substitutes for legal forms, or as providing ways out of legal aporias, I argue that their literary jurisprudences reveal the challenges of facing the afterlife of judgment, particularly for a humanity left in the wake of ambiguous forms of condemnation and restitution.

KeywordsCrimes against humanity, law and literature, literary jurisprudence, novel, humanities, judgment, responsibility, repair

I. Introduction: Literary Jurisprudence and the Question of the Human

In her 1961 trial report Eichmann in Jerusalem, Hannah Arendt introduced a now-familiar formulation that has continued to haunt the literary and legal imagination: the banality of

Corresponding author:Kelly M. Rich, Department of English, University of Pennsylvania, Philadelphia, PA 19104, USA. Email: kelrich@sas.upenn.edu

541520 LCH0010.1177/1743872114541520Law, Culture and the HumanitiesRichresearch-article2014

Commentary

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1. For one of the most current indications of the popular importance of Arendt’s account, see http://www.nytimes.com/2013/12/01/books/review/fifty-years-later-why-does-eichmann-in-jerusalem-remain-contentious.html, Adam Kirsch and Rivka Galchen, “Fifty Years Later, Why Does ‘Eichmann in Jerusalem’ Remain Contentious?” New York Times, November 26, 2013. Accessed March 1, 2014.

2. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Group, 2006), p. 276.

3. Arendt, Eichmann in Jerusalem, p. 287. 4. Martha Minow, “Breaking the Cycles of Hatred,” in Breaking the Cycles of Hatred: Memory,

Law, and Repair, ed. Nancy Rosenblum (Princeton, NJ: Princeton University Press, 2002), p. 15. The excessive nature of crimes against humanity is perhaps best reflected in the way it has been limited as a working legal category: as Lawrence Douglas discusses, the Nuremberg Tribunal both invented and restricted this new “idiom of judgment,” limiting its charges of crimes against humanity to those of war crimes and crimes against peace. See Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001), ch. 2. And as Arendt laments, the Eichmann Trial missed the opportunity to robustly define crimes against humanity, favoring instead the narrower concept of crimes against the Jewish People.

5. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), July 17, 1998, http://www.refworld.org/docid/3ae6b3a84.html. Accessed June 6, 2014.

6. UN General Assembly, Rome Statute.

evil.1 How can a crime against humanity be committed by an individual like Adolf Eichmann, whose trouble “was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal”?2 This question reflects not only a legal paradox, but also a representational one: namely, that new and mutually constitutive categories of the “human” and the “criminal” emerge through the creation of “crimes against humanity” in the aftermath of the Second World War. As the provocative phrase “banality of evil” suggests, one of these represen-tational cruxes is in the troubling discrepancy between what we imagine the agent of evil to look like and the ways such evil manifests in the criminal’s actual person. Arendt under-scores this issue of character in part through literary comparison, relying on her audi-ence’s common literary consciousness through her suggestion that “Eichmann was not Iago and not Macbeth, and nothing would have been farther from his mind than to deter-mine with Richard II ‘to prove a villain.’”3 Another aporia lies the nature of the crimes themselves, and their uncontainable quality that threatens to exceed any human attempt at adjudication, redress, or even recognition. Martha Minow locates this inexpressibility as the central problem of adjudicating mass violence: that is, in turning to the law to address “horrors that were once seen as beyond human response,” something excessive or indefin-able will always escape our ability to address it.4 Of course, international law does strive to define what constitutes a crime against humanity: Article 7 of the International Criminal Court’s Rome Statute enumerates eleven categories including murder, extermination, enslavement, and torture, with the last offering a catchall of “other inhumane acts of a similar character.”5 Yet it’s worth noting that, in its only other invocation of the concept of “humanity,” the Statute deploys a rhetoric of ineffability, stating that this century has seen “unimaginable atrocities that deeply shock the conscience of humanity.”6 While this

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7. Arendt, Eichmann in Jerusalem, p. 276. 8. See Deborah Nelson, “Suffering and Thinking: The Scandal of Tone in Eichmann in

Jerusalem,” in Compassion: The Culture and Politics of an Emotion, ed. Lauren Berlant (New York: Routledge, 2004), pp. 219–44; Ravit Reichman, The Affective Life of Law: Legal Modernism and the Literary Imagination (Stanford, CT: Stanford University Press, 2009).

9. Arendt, Eichmann in Jerusalem, p. 278.10. For a reading of this moment’s literariness, see especially Judith Butler, who draws attention

to how this moment “underscores the difference between the conjectural domain of philoso-phy and that of actual law and politics,” a turn to the “counterfactual” she also calls Arendt’s “fiction.” Judith Butler, Parting Ways: Jewishness and the Critique of Zionism (New York: Columbia University Press, 2013), p. 171.

language suggests that crimes against humanity can be recognized through their effects on the shared nomos of humankind, the use of the inexpressibility topos also reflects the pos-sibility that we might fail to imagine them. This legal aporia is further complicated by the figure of Eichmann, who, despite being “hostis generis humani” or an enemy of mankind, also, commits his crimes under circumstances that make it well-nigh impossible for him to know or feel that he is doing wrong.”7

I begin by invoking Eichmann in Jerusalem as a key illustration of two representa-tional problems inherent in crimes against humanity as well as a document that com-plexly stages the contact zone between the “human” of crimes against humanity and of the humanities, specifically of literature. Despite Arendt’s insistence on the trial’s strict legalism (and related legal failures), her report has long been an object of robust literary analysis. From Deborah Nelson’s exploration of its scandalous tone to Ravit Reichman’s analysis of its narrative form, Eichmann in Jerusalem has invited engagements with its literariness, especially in relation to the representational challenges posed by Eichmann’s case.8 One of the most pressing moments for this analytical approach comes at the end of Arendt’s epilogue, which concludes with a striking passage where Arendt assumes the fictive legal persona of a body of judges who sentence Eichmann to death:

We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives or with the criminal potentialities of those around you. You told your story in terms of a hard-luck story, and, knowing the circumstances, we are, up to a point, willing to grant you that under more favorable circumstances it is highly unlikely that you would ever have come before us or any criminal court.9

This remarkable (and strictly speaking, unnecessary) passage both assumes and refuses a literariness to effect its legal action. At this moment, Arendt strikingly shifts from the earlier third person language of the report to a vocative first person plural, as though marshalling both the force of law and the opinion of a general human community. Yet despite the performative stylistics of the passage, she also refuses Eichmann a chance to tell “his” story to the court, drawing a stark distinction between his actions and interior-ity. The literary-legal paradox posed by this “enemy of mankind” is thus not only the representational discrepancy between his crime and his character, but also, at least to Arendt, that he is to be judged for his crimes against humanity while relying on literary register to do so.10 In this rhetorical confusion, we might argue that Arendt misses the

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11. Nancy Armstrong, How Novels Think: The Limits of British Individualism from 1719–1900 (New York: Columbia University Press, 2005), pp. 9–10.

12. See Joseph Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law (New York: Fordham University Press, 2007); and Elizabeth Anker, Fictions of Dignity: Embodying Human Rights in World Literature (Ithaca, NY: Cornell University Press, 2012).

13. This impossibility gives crimes against humanity what Derrida calls their “performa-tive” quality, with their legal formulation and adjudication being the “theatrical space in

literary challenge of the trial even as she opens up one of the major questions of the “human” in law and literature: namely, how to read the “human” of “crimes against humanity” in relation to the “human” of the “humanities.”

What is the new idea of the human called into juridical and literary being through this postwar invention of crimes against humanity? How might literature inhabit and animate the representational problems facing the juridical, and what, if anything, is there to gain by attending to these encounters between law and literature? In what follows, I address these questions through close readings of two contemporary novels, Kazuo Ishiguro’s The Remains of the Day (1989) and Ian McEwan’s Atonement (2001). Each gives an account of the ways an individual comes to terms with their complicity in larger systems of harm, which they achieve through a narrative epiphany that is at once confession, judgment, and appeal. In doing so, they juridically inflect one of the generic elements of the novel, described by Nancy Armstrong as the “presupposition that novels think like individuals about the difficulties of fulfilling oneself as an individual under specific cultural historical conditions.”11 The novel thus provides an especially appropriate literary form to explore how individuals negotiate their status as legal subjects, not only in terms of human rights (as Joseph Slaughter and Elizabeth Anker have demonstrated) but also in terms of crimes against humanity and their vexed formulations of individual responsibility, ineffability, and reparative potential.12 Through readings of The Remains of the Day and Atonement, this commentary begins to delineate what might be called each novel’s “literary jurispru-dence,” or the engagement with problems of judgment that arise around crimes against humanity. This is not to suggest that these literary instantiations should be read as desira-ble substitutes for the legal form, or to embrace a simplified humanistic optimism about the virtues of the literary. Instead, this commentary explores the ways the novels throw into relief the same problems of legal representation as highlighted by Arendt’s trial report. The first such problem, taken up in Ishiguro’s The Remains of the Day, is the “banality” of the hostis generis humani not only in terms of criminal character, but also in other forms of attenuation such as distance from and modulated knowledge of the crime. Its literary jurisprudence takes the shape of applying a legal problem to a presumably non-legal actor, testing the reach of the law and its various cultural lives. The second problem, revealed in McEwan’s Atonement, is that of the “unimaginable” or infinite nature of crimes against humanity, and the impossibility of repairing the humanity against which such a crime is committed. Atonement then further complicates the site of judgment by asking what role the literary can play in repairing harm, placing literature self-reflexively, metafictionally on trial.13 What emerges as the most provocative aspect of these novels’ literary jurisprudences, I suggest, is the way each challenges us to consider the afterlife of judgment, particularly for a humanity left in the wake of the ambiguous condemnations and restitutions of legal sentence. While Arendt’s epilogue to Eichmann in Jerusalem

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which the grand forgiveness, the grand scene of repentance … is played, sincerely or not.” Jacques Derrida, On Cosmopolitanism and Forgiveness, trans. Michael Hughes (New York: Routledge, 2005), p. 29.

14. Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (New York: The New Press, 2006), pp. 260, 380, and 434.

15. Michail Wladimiroff, “The Individual Within International Law,” From Sovereign Impunity to International Accountability: The Search for Justice in a World of States, eds. Ramesh Thakur and Peter Malcontent (New York: United Nations University Press, 2004), p. 108.

16. This debate over the “mental element” was part of the definition of crimes against humanity since Nuremberg’s ex post facto application of them, though as Arendt’s account of Eichmann suggests, its place is still of theoretical importance. See Wladimiroff, “The Individual,” p. 107.

offers one possible literary response to the demands of crimes against humanity, her call for a better jurisprudence works by reiterating the moment of judgment, ending with the clear order for Eichmann to hang. In contrast, Ishiguro and McEwan focus on what it means to live after judgment, exploring the various ways jurisprudence refuses to relin-quish its hold long after the moment of legal decision.

II. On Distance and Dignity: Ishiguro’s Remains of the Day

As the evolution of the legal definition of crimes against humanity suggests, one of its most vexing, recurrent problems is how exactly to define responsibility in relation to the crime. Nuremberg distinguished between war crimes, committed by states against ene-mies or foreigners, and crimes against humanity, which can be committed against a state’s own nationals; the International Criminal Tribunal for the Former Yugoslavia decided to include internecine conflict under international jurisdiction; and finally, the Rome Statute emphasizes that crimes against humanity are “committed as a part of a widespread or systematic attack directed against any civilian population, with knowl-edge of the attack,” restricting the definition to a collective, premeditated deployment of violence.14 What is left open to the imagination through these definitions, and where the novel’s literary jurisprudence takes over, is the exploration of the role of the individual within larger systems of violence, and the question of how to judge different levels of individual responsibility within them. While the Rome Statute expressly addresses “indi-vidual criminal responsibility” in Article 25, it requires that this responsibility be at a high organizational level: as Michail Wladimiroff usefully delineates, this includes “principal offenders,” or superiors in control of a number of subordinates, and “accom-plices, who aid and abet, if directly and substantially, the principal offenders.”15 But what about different constellations of individual relationships and kinds of knowledge and intent? In what ways can an individual be responsible (legally, morally, personally) for a crime against humanity when working several degrees from the major foci of systemic violence? Can crimes against humanity be imagined as attenuated versions of the “wide-spread or systematic attack,” felt on a smaller, more localized scale or on a longer tem-porality? Moreover, what other forms of comprehension could be at play other than clear, explicit “knowledge” (mens rea or dolus eventualis) of the violent event, if individuals are at a far remove from the crime, or if they inhabit both the role of the perpetrator and that of victim (indeed, a member of the humanity) injured by the crime?16

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See also Robinson’s assertion that establishing mens rea is important to all criminal law, though he does suggest that “some observers had suggested that such knowledge should not be required.” Darryl Robinson, “Defining ‘Crimes Against Humanity’ at the Rome Conference,” The American Journal of International Law 93 (1999), 51.

17. For the postwar politics in The Remains of the Day, see especially John McCombe, “The End of (Anthony) Eden: Ishiguro’s ‘The Remains of the Day’ and Midcentury Anglo-American Tensions,’’ Twentieth Century Literature 48(1) (Spring, 2002), 77–99; and Susie O’Brien, “Serving a New World Order: Postcolonial Politics in Kazuo Ishiguro’s The Remains of the Day,” Modern Fiction Studies 42(4) (1996), 787–806. One of the few articles to rigorously read The Remains of the Day in a specifically legal context does so in the old law and lit-erature paradigm whereby reading literature humanizes lawyers, ultimately suggesting that lawyers can find in the novel’s “tragic consequences of flawed professional visions” analo-gous lessons for their own work. Rob Atkinson, “How the Butler Was Made to Do It: The Perverted Professionalism of The Remains of the Day,” The Yale Law Journal 105(1) (Oct., 1995), 177–220.

Kazuo Ishiguro’s The Remains of the Day directly addresses these alternative imagin-ings of networks, distance, and attenuation in relation to crimes against humanity. While critics have commonly contextualized this novel’s postwar status in light of England’s imperial decline and waning world power (especially given its narrative contemporane-ity with the 1956 Suez Crisis), surprisingly few have read its postwar condition as spe-cifically juridically inflected.17 However, Ishiguro’s novel about Stevens, a butler reflecting upon his professional tenure and relationship to his former employer Lord Darlington, invites us to read its account as a form of testimony, thus providing a mecha-nism of judgment not unlike the postwar criminal trials of Nuremberg and Eichmann. This trial is doubled: on the one hand, Remains of the Day can be read as Stevens’ indict-ment of the pro-German Lord Darlington, as it testifies to Darlington’s attempts at appeasement before the outbreak of the Second World War. On the other hand, the novel tries its own protagonist for his complicity with Darlington’s actions, particularly in light of the self-defining pride Stevens takes in his professional duties.

One of the main jurisprudential questions posed by the novel, then, is how to deter-mine an individual’s responsibility or complicity in the “widespread systemic attacks” that constitute crimes against humanity. As a butler, Stevens is not exactly a figure to be arrested and tried in the chambers at Nuremberg or other similar postwar criminal trials. Similarly, the events that comprise the plot of Ishiguro’s novel are not those “unimagina-ble atrocities that deeply shock the conscience of mankind” as enumerated in interna-tional humanitarian law, but are instead the professional triumphs and setbacks around issues of dignity, trust, intimacy that develop over Stevens’ career. Yet like Arendt’s account of the figure of Eichmann, the novel asks us to consider how the criminal and crimes against humanity can be boring, diminutive, banal, and professional. It does so partly through analogy. For example, as Stevens prepares Darlington Hall to host an “unofficial” international conference to discuss how the Versailles treaty might be revised and softened for Germany, Ishiguro uses the analogy of war to describe Stevens’ work: “I set about preparing for the days ahead as, I imagine, a general might prepare for a bat-tle.”18 At the same time, Ishiguro’s highly stylized, self-reflexive narrative voice lessens

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18. Kazuo Ishiguro, The Remains of the Day (New York: Vintage International, 1993), p. 77.19. For a now classic account of the stylistics of Ishiguro’s oeuvre, see “Ishiguro’s Treason”

in Rebecca Walkowitz, Cosmopolitan Style: Modernism Beyond the Nation (New York: Columbia University Press, 2006), pp. 109–30.

20. Ishiguro, The Remains of the Day, p. 115.21. Ishiguro, The Remains of the Day, p. 115.22. See Lauren Berlant, The Female Complaint: The Unfinished Business of Sentimentality in

American Culture (Durham, NC: Duke University Press, 2008), pp. 2–3 and 10.23. Ishiguro, The Remains of the Day, p. 243.

the violence of this war reference: it is not only consciously figurative, but also, impor-tantly, qualified by Stevens’ comment “I imagine,” which underscores his more diminu-tive role as a butler.19 Thus even as he imagines himself into a position of power, Stevens’ hesitation, qualification, and assumption of modesty complicates the very complicity he seems to assume. This complexity is echoed in the most striking and lasting of the meta-phors Stevens uses to describe his relation to the political world, that of the “hub” and “wheel,” the hub being the great houses whose “mighty decisions emanat[e] out to all else, rich and poor, who revolved around them.”20 Since most decisions, Stevens explains, are not “arrived at simply in the public chambers, or else during a handful of days given over to an international conference under the full gaze of the public and the press,” but rather in the “privacy and calm of the great houses of this country,” it is thus the “aspira-tion of all those of us with professional ambition to work our way as close to this hub as we were each of us capable.”21 Through this professed desire for proximity and a private form of publicity, the hub-and-wheel metaphor encapsulates the very problem of the novel’s literary jurisprudence, and indeed, of adjudicating crimes against humanity. It asks us to consider whether private, smaller networks can do similar work to larger, properly governmental networks such as public chambers or official, international con-ferences; if we accept that the state decisions can be made behind closed doors of great houses, then it is then not too far a leap to take a butler’s role as a very serious and involved one after all, however “juxtapolitical” (to borrow a term from Lauren Berlant) or indeed, juxtalegal it may be.22

Yet the novel’s narrative jurisprudence exists not merely in its metaphorics of distance and scale, from which we might concede Stevens’ role, however removed, in crimes against humanity. In addition, the culmination of his retrospective narration can be read as an unimaginable atrocity that shocks Stevens’ conscience and injures his dignity, turning him into a victim as well as a possible perpetrator. This narrative epiphany occurs in an exceptional moment not of first-person narrative, but in dialogue, opening up a perspec-tive Stevens’ mediated narrative cannot achieve. In this moment, Stevens realizes that Lord Darlington was not a “great gentleman” worthy of his labor and care: “All those years I served him, I trusted I was doing something worthwhile. I can’t even say I made my own mistakes. Really – one has to ask oneself – what dignity is there in that?”23 His statement is difficult to parse, as it carries both the force of a judgment against Lord Darlington’s politics of Nazi appeasement, casting Stevens in the role of a quasi-victim whose dignity has been harmed, as well as the force of self-accusation in which Stevens acknowledges his role as quasi-perpetrator. That he employs the term “dignity” further

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24. Anker, Fictions of Dignity, p. 3. See also Tarunabh Khaitan’s article on dignity as a norm, which opens with an epigraph from Remains of the Day that “captures the main criticism against dignity: that it is indeterminate,” though does not return to any sustained reading of the novel. Tarunabh Khaitan, “Dignity as an Expressive Norm,” Oxford Journal of Legal Studies 32(1) (2012), 1.

25. Kazuo Ishiguro, The Remains of the Day,” p. 117.26. See Elazar Barkan, The Guilt of Nations: Restitution and Negotiations for Historical Injustices

(New York: W.W. Norton & Company, 2000).27. Bruce Robbins, “Cruelty is Bad: Banality and Proximity in Never Let Me Go,” NOVEL 40(3)

(Summer, 2007), 293.

deepens the jurisprudential nature of this realization, for as Elizabeth Anker reminds us, the term dignity “is widely invoked as essential to both the broad ethos and intellectual coherence of human rights norms, representing something of a constant reconciling the manifold ideals subsumed within their logic,” most notably in the Preamble to the Universal Declaration of Human Rights with its recognition of humans’ “inherent dig-nity” as the foundation of justice.24 In offering his own professional theorization of the term, however, Stevens had earlier suggested that dignity is not inherent, but rather earned through service and proximity to greatness: as he put it, “a ‘great’ butler can only be, surely, one who can point to his years of service and say that he has applied his talents to serving a great gentleman – and through the latter, to serving humanity.”25 Thus the great injury and irony of the novel’s climax emerges not only from its negation of the tenets underlying Stevens’ self-definition, but also from its complete reversal of Stevens’ imag-ined relationship to humanity, and the subsequent injury to his professional dignity.

Turning this reading back upon the legal jurisprudence of crimes against humanity, The Remains of the Day poses a provocative challenge to the efficacy of postwar trials and their ability to delineate and adjudicate what Elazar Barkan calls the “guilt of nations.”26 As Bruce Robbins puts it in his characterization of Ishiguro, Ishiguro’s “tech-nique assumes … that at some point we will ask, defensively: who does want to contem-plate the Big Picture? Who can afford to?”27 While the language and instruments of law might create an occasion for this contemplation, The Remains of the Day suggests that equally difficult decisions arise only after the legal decision, in the wake of judgment. For whether we read this narrative epiphany as a judgment against Lord Darlington or shattering self-indictment, Stevens’ realization does not lead to any satisfying punish-ment, nor does his demonstration of injured dignity lead to any form of reparation. Unlike the decisive outcome of a criminal trial, The Remains of the Day leaves open what exactly Stevens’ punishment or reparation might be. Though the novel brings us to a jurisprudential crisis, it ends in the moment immediately after, showing Stevens’ resolve to reinvest in his duties despite the nature of his epiphany. The novel thus leaves the reader with the troubling, undecidable question: is this what repair looks like, returning to the very site of one’s crime and injured dignity? Do we read this as an inherently flawed repetition, or a restorative move? The Remains of the Day lives precisely in this hollow place after judgment, leaving Stevens amidst the pieces of his shattered life while also refusing the reader any closure as to what will follow.

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28. Derrida, On Cosmopolitanism and Forgiveness, p. 33.29. McEwan, Atonement (London: Vintage, 2002), p. 350.

III. On Humanistic Repair: Ian McEwan’s Atonement

Ian McEwan’s Atonement provides an illustrative counterpart to Ishiguro’s Remains of the Day, in part because both share the literary jurisprudential framework of protagonists coming to terms with their complicity in a crime long after the crime itself has been com-mitted. In each case, this results in an epiphanic crisis at the end of the novel, but com-pared to Stevens’ self-shattering judgment, McEwan chooses an explicitly metafictional route for his protagonist Briony’s epiphany. Using a first-person epilogue to reveal that the novel has been authored by Briony, we learn that Briony views her work of literary composition as a means of atoning for her childhood crime: the wrongful accusation of rape against her sister Cecilia’s lover, Robbie. As the novel links this crime not only to Briony’s youth but also to her burgeoning professional aspirations as a writer, it is both fitting and peculiar that her reparation takes the form of endlessly rewriting their story, a Sisyphean labor that spans fifty-nine years. This specter of infinite guilt, repair, and atonement reflects the “imprescriptable” status of crimes against humanity, insofar as they exist without an expiration date for possible adjudication: as Derrida puts it, this imprescriptability “stems perhaps from what it also introduces, like forgiveness or the unforgiveable, a sort of eternity or transcendence, the apocalyptic horizon of a final judg-ment.”28 We might interpret Briony’s labor as emerging precisely from this crux, consist-ing as it does of an attempt to match the potentially infinite harm of her lie with an infinity of storytelling.

McEwan adds a layer of complexity to this problem by asking whether literature is the appropriate medium for this work of reparation. For when the aging Briony emerges as the author of the novel, she also reveals its eminently fictional nature: contrary to the preceding story of Robbie and Cecilia, we learn that the lovers actually died in the war before they had a chance to meet again. Briony then begs the reader to accept her fiction-alized version of events:

How could that constitute an ending? What sense or hope or satisfaction could a reader draw from such an account? Who would want to believe that they never met again, never fulfilled their love? Who would want to believe that, except in the service of the bleakest realism? I couldn’t do it to them. I’m too old, too frightened, too much in love with the shred of life I have remaining. I face an incoming tide of forgetting, and then oblivion.29

Like Stevens at the end of Remains of the Day, Briony’s epiphany takes the form of a series of questions that are difficult to parse, consisting both of a confession of her guilt and an appeal for acceptance of her attempted atonement. Here, McEwan lands his reader the paradox of depending on the humanistic to redress the humanity against which the crime has been committed – in a manner not unlike Arendt’s turn to literary performance even as she dismisses its legal viability. Both Arendt’s and McEwan’s texts provocatively rely on a shift in narrative voice as a means of jurisprudential redress, with Arendt’s counterlegal vocative judgment and Briony’s counterfactual writerly atonement calling

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30. McEwan, Atonement, pp. 350–52.31. See also McEwan’s subsequent novel Saturday (New York: Anchor Books, 2005), which fol-

lows in this pattern.32. McEwan, “Only Love and Then Oblivion,” The Guardian, September 15, 2001, http://www.

theguardian.com/world/2001/sep/15/september11.politicsphilosophyandsociety2. Accessed March 1, 2014.

attention to their eminently fictional statuses. However, they ultimately diverge in their configurations of the legal and the literary. For Arendt, charging the court in Jerusalem for its lack of legal imagination requires not only a supplemental, corrective judgment of Eichmann, but also a narrative performance whose overt literariness gives the proper judgment its force. Briony’s epilogue reverses this relationship, appealing to the reader’s literary imagination by revealing “what really happened,” using the undesirability of that reality to give her own version purchase. Put differently, while Arendt makes no overt claim for the ascendancy of the fiction, Briony does: we might even read Briony’s epi-logue as making a case against the banality of evil and its resulting, pitiless reality, which it does by appealing to the reader’s desire for a “hopeful” or “satisfying” ending for Robbie and Cecilia. This appeal thus begs the question of whether Briony’s storytelling could ever be a service to those she wronged, especially as her insistence on fictionality was the very condition of her original crime.

Yet what is even more troubling, I’d argue, is the way Briony predicates the success of her atonement on her reader’s sympathy, as, facing a terminal illness, she desires a good end to her own story. This puts the reader in the difficult position of serving as her final judge, and in doing so, providing an answer to Briony’s appeal for reconciliation (“How can a novelist achieve atonement when, with her absolute power of deciding outcomes, she is also God? There is no one, no entity or higher form that she can appeal to, or be reconciled with, or that can forgive her.”30) This formulation uses Briony’s labor of endless, unforgiving writing to turn her into an abject victim as well as perpetrator, even the writing is itself presented as a form of repair. Would it then be inhumane for us to refuse her atonement – a crime against the human through a crime against the humanities?

This open question of the humanities’ reparative status can be better understood in relation to McEwan’s subsequent writings, which explicitly conceptualize literariness and the imagination as powerful humanizing agents. This claim is perhaps most clear in his provocative (and at times unintentionally offensive) response to the events of 9/11, published in the Guardian just days after the attacks.31 Captioned “Only Love and then Oblivion. Love was all they had to set against their murderers,” McEwan’s article moves beyond merely questioning the humanitas of the humanities to suggesting that the grav-est crime one can commit against humanity is to lack an adequately empathetic, and therefore fictive, imagination:

If the hijackers had been able to imagine themselves into the thoughts and feelings of the passengers, they would have been unable to proceed. It is hard to be cruel once you permit yourself to enter the mind of your victim. Imagining what it is like to be someone other than yourself is at the core of our humanity. It is the essence of compassion, and it is the beginning of morality.32

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33. McEwan, Atonement, p. 352.

We might read this statement as strangely kindred to Arendt’s epilogue in Eichmann in Jerusalem, both assuming a locutionary force of judgment that garners its power through stark, simplifying definitions of what constitutes its subject. But whereas Arendt expressly dismisses the contours of Eichmann’s inner life as evidence, McEwan suggests precisely the opposite: to him, apparently, the humanistic trait of compassion could have prevented these terrorists’ crime against humanity, their main failure and crime being their lack of imagination. Conversely, as his article subsequently suggests, the only sav-ing grace and defiance of the victims of the 9/11 attacks was their capacity to love, revealed in the many phone calls to family, friends, and loved ones from the planes and towers. Through this juxtaposition, not only does he bluntly dehumanize the hijackers, but he also perversely turns their violence into a humanizing opportunity for his reader, inviting us to imagine what it was like to be a victim on that plane (“What would we say? Now we know”). McEwan’s humanizing gesture, however, depends upon an assumed distinction between those who are and aren’t capable of such a gesture: in his distinction, those who are and are not fully human.

This Guardian piece helps reveal a problem with the fundamental ethical paradigm of Atonement, which, like his call for a post-9/11 humanity, compels his readers to imagine themselves into a moment of “only love and then oblivion.” As Briony concludes, “I like to think that it isn’t weakness or evasion, but a final act of kindness, a stand against oblivion and despair, to let my lovers live and to unite them at the end.”33 McEwan’s novel, however, offers a complexity that his Guardian article’s simplistic, violent dis-tinction between the human and not fully human does not: Briony is both a victim and perpetrator. She inhabits both guilt and atonement, and the reader is left in the difficult position of having to judge the efficacy of her humanistic repair. The novel thus leaves open the possibility of not embracing Briony’s plea for empathy – what would be, if we judge according to McEwan’s own formulations in his Guardian article, a dehumanizing gesture. In addition, while Atonement evinces a skepticism about literature, it also per-versely insists on the literary as its primary vehicle (indeed, the only option) for achiev-ing justice. McEwan’s novel thus puts fiction itself on trial without end, asking how the humanities can atone for, amend, and even prevent terrible acts of violence while also being the source of great harm; as such, it lands its protagonist in a quandary she cannot write herself through, and one its reader cannot think through to judgment.

IV. Conclusion

By way of conclusion, I’ll close the commentary by offering two frameworks that point to the implications of these novels’ literary jurisprudence and to ways one might begin to extend the analysis along different lines. The first way to begin framing the work of this piece would be to extend these insights into a broader geopolitical framework: either by putting them in relation to other postwar global Anglophone novels such as J.M. Coetzee’s Waiting for the Barbarians, Chang-rae Lee’s A Gesture Life, Julie Otsuka’s When the Emperor Was Divine, or Zadie Smith’s White Teeth; or relatedly, by asking what is particular to these novels’ literary jurisprudence as domestic postwar British

Rich 507

34. Julie Stone Peters, “Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion,” PMLA 120(2) (2005), 448.

35. Peters, “Law, Literature, and the Vanishing Real,” 448.36. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago, IL:

University of Chicago Press, 2006), pp. 34 and 35.

novels. For contemporaneous with postwar legal innovations and the advent of “crimes against humanity” was Britain’s postwar imperial decline and the rise of decolonization movements. After the Second World War, like other victors such as the United States and Russia, Britain was in a strange position as both acknowledging and not acknowledging its war crimes and crimes against humanity, adjudicating those of its enemy nationals in the Nuremberg and Tokyo Tribunals while also turning a blind eye to its deeper history of colonial violence. Thus we might read Stevens’ and Briony’s uneasy inhabitation of the roles of both perpetrator and victim in relation to the geopolitics of postwar Britain, the novels serving as literary-legal tribunals that fittingly attempt to deliver both judg-ment and reparation.

We could also approach this material by folding it back into the discourse of law and literature – or as the title of this journal proposes, of law, culture and the humanities – asking how, if at all, it might help us think about the relationship between these fields of study. Julie Stone Peters’ reading of the “symptomization” of this particular interdiscipli-narity suggests that “each in some way fantasized its union with the other: law would give literature praxis; literature would give law humanity and critical edge.”34 Ishiguro’s The Remains of the Day and McEwan’s Atonement trouble this neat formulation. Taken as legal pieces from a literary standpoint, their turn to questions of responsibility and repair does not achieve praxis or a “doing,” but rather entrenches them further into apo-rias. Taken as literary pieces from a legal standpoint, their literariness is not a “critical humanism that might stand up to the bureaucratic state apparatus” in any fulfilling, radi-cal way; rather, in transforming the troubles raised by the concept of crimes against humanity into narrative problems, these novels show that the literary is anything but a humane space.35 Indeed, what I have been calling their literary jurisprudence can be read as dwelling precisely with the ramifications of judgment, as it asks how subjects can continue to live with themselves and others in the wake of the legal event. Another way of approaching this disciplinary divide would be to turn to Carl Schmitt’s assertion in Political Theology that “what matters for the reality of legal life is who decides,” which to Schmitt suggests that juristic form is “not the form of aesthetic production, because the latter knows no decision.”36 Again, the forms of postwar literary jurisprudence I’ve been exploring in this commentary suggest otherwise. Although both novels end on notes of tantalizing ambiguity with regards to responsibility and repair, whether Stevens’ professional dilemma or the specter of Briony’s endless atonement, both protagonists make a decision as to how to address their seemingly undecidable jurisprudential crises, with Stevens returning with renewed commitment to his work and Briony choosing to end with a fictional account of events. These aesthetic productions, in other words, know how to make their own decisions, which are particularly devastating not only for their characters, but also for both legal conceptions of humanity and literary conceptions of the humanistic.

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Acknowledgements

Thank you to Austin Sarat, who invited me to submit a commentary for this issue of Law, Culture, and the Humanities, and to the anonymous reviewer for such generous and thoughtful feedback, which helped me better understand the questions and stakes of this piece. Thanks also to David Eng, Jed Esty, Paul Saint-Amour, and Alan Niles for their incisive and insightful comments on various drafts along the way.