What is a 'Manifestly Illegal' Order? Law and Politics after Yoram Kaniuk's Nevelot

Abstract

The question of what is a “manifestly” illegal order has long been contested. Yet surprisingly, it has so far only been partially understood - with the important exception of Hannah Arendt’s commentary about it in her essay Personal Responsibility under Dictatorship. This chapter proposes a typology of three formations of the political imagination, which in the post–Cold War period have devolved into three kinds of nihilism: sovereignty, cosmopolitanism, and the rule of law. It relies on three texts: first, a piece of fiction, the novella Nevelot (“Caracasses”) by the late Israeli author Yoram Kaniuk. This story will lead directly into the second text, Military Prosecutor v. Malinki, a famous opinion of an Israeli military court. In 1958, the Court held that soldiers who followed an order to kill unarmed Israeli citizens were criminally responsible, as the order was “manifestly illegal.” Arendt's is the third text this chapter will engage. Kaniuk's Novella and the Court's decision will both be instructive in offering a contemporary interpretation of Arendt's idea of judgment. Judgment is what allows us to resist a "manifestly" illegal order, but today it might have a more central role in conceptualizing politics and law. The reading of Arendt is offered here as an alternative to the three "nihilisms" suggested above.

Keywords: legal theory; political theory; Israel studies; international law; human rights; international humanitarian law; laws of war; constitutional law; law and literature; law and history; Hannah Arendt; Yoram Kaniuk