The Rudolf Kastner trial was one of the three great scandals that rocked Israeli party politics in the 1950s (the others were the negotiations with Germany for Holocaust reparations and the so-called "Lavon affair"). Although Leora Bilsky describes it as an "almost forgotten trial," it has not been forgotten by subsequent writers: it makes an important cameo appearance in Arendt's Eichmann in Jerusalem; it features prominently in Tom Segev's The Seventh Million (1991); Yehuda Bauer's Jews for Sale? (1994) takes pains to refute the charges against Kastner; and it inspired two novels - Amos Elon's Timetable (1980) and Neil Gordon's cerebral thriller The Sacrifice of Isaac (1995). But the legal opinions have never until now attracted the thought or analysis they warrant, and Bilsky deserves gratitude for remedying this omission. With admirable insight and ingenuity, Bilsky focuses on the construction of the legal opinions as a form of literature. Her reading of Judge Halevi's and Justice Agranat's opinions centers on the way in which law is driven by metaphor - in Halevi's case, the metaphor of contract; in Agranat's, the metaphor of administrative decision making. Her article is a major contribution to our understanding of the Kastner case and to the way that, in a situation of intense moral ambiguity, legal analysis can be predetermined by a choice of metaphors.
I found Bilsky's critique of Halevi's opinion illuminating and accurate, with a few qualifications that I discuss below. Her analysis of Agranat's opinion and her own view of Kastner (which closely resembles Agranat's) raise more doubts. At the end of the day, however, I still find myself unable to answer the two basic questions, Who is Kastner? and How shall we judge what he did?
I have three aims in this comment: first, to explain the few hesitations I have about Bilsky's interpretation; second, to place Bilsky's work in the historiography of the Kastner case by contrasting it with Arendt's and Segev's accounts; third, to explain why, at the end of the day, I fear that Kastner himself remains a cipher lost in the gray zone.
19 Law & Hist. Rev. 161-176 (2001)
Scholarly Commons Citation
Luban, David, "A Man Lost in the Gray Zone" (2001). Georgetown Law Faculty Publications and Other Works. Paper 597.