Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of ‘The Tradition’
Between Freedom and Law: Hannah Arendt
on the Promise of Modern Revolution
and the Burden of ‘The Tradition’
MICHAEL A WILKINSON1
‘In principle, all modern constitutions begin with “We the People”’.2
FROM ARENDT’S REFLECTIONS on modernity an ambiguous account of the relationship between freedom and modern law emerges. On the one hand, the revolutionary events in America and France in the late eighteenth century mark the appearance of a strong sense of ‘political freedom’ in the world, with the novelty that subjects now consider themselves rulers.3 ‘We, the people’ are the new foundations of political and constitutional authority. We become aware of our potential to authorise new institutions and new basic laws; in Habermasian terminology, the modern State is marked by the idea that subjects are citizens, not merely the ‘addressees’ of law but also its ‘co-authors’. Exemplified in those modern revolutionary moments on either side of the Atlantic, Arendt suggests, is a radical sense of freedom as collective action in the circumstances of plurality. This signals a break with ‘the great tradition’4 of philosophy that had prioritised isolated contemplation over the plurality of politics and divorced freedom from the experience of action. And since our conception of law is a reflection of our self-understanding as social and political animals,5 the new sense of political freedom that emerges with the birth of our constitutional potentia also implies a shift in the modern juridical consciousness.6
And yet, from the outset, two features of this juridical consciousness, which survive and are even reinforced by modern revolution, undermine our constitutional potentia. First, there is the puzzling persistence of a traditional conception of law as command, which assumes rulers and ruled, sovereign and subject, and an ‘absolute’ source of law’s authority (whether ‘nature’s God’, the ‘sovereign nation’ or ‘self-evident truths’). Secondly, modern constitutionalism suggests the priority of fabrication (in the guise of constitution-making) over political action (or constitutional politics), a hierarchy that was implicitly set in motion by the Platonic inauguration of ‘the tradition’.7 Although the ‘imperative’ conception of law combined with the turn to constitution ‘making’ or ‘fabrication’ are not solely responsible for the eventual loss of the revolutionary treasure, the decline of the public realm and the eclipse of political freedom that Arendt traces in late modernity,8 they do represent for Arendt the hallmarks of an escape from politics and therefore from freedom itself.
At the heart of modern constitutionalism lies this fateful ambivalence between the promise and collective self-consciousness of political freedom, which suggests an escape from ‘the tradition’, and an ideology of sovereignty and constitution-making that not only remains bound to ‘the tradition’ but also liberates it from its ancient and yet insincere prejudices against the category of ‘fabrication’. This dilemma cannot be easily resolved because Arendt does not confront head-on the tension between political freedom and law, or make any systematic attempt to uncover or develop an alternative conception of law ‘beyond the tradition’. The purpose of this essay is to explore the tension more systematically by drawing together Arendt’s scattered remarks on the relationship between freedom and law as it appears in modernity and in contrast to earlier traditions of law based on nomos and lex.
After presenting Arendt’s critique of the traditional understanding of freedom, and exploring her suggestion that the revolutionary events demonstrate the possibility of a genuine alternative, we examine how the tradition not only maintained its grip on the juridical consciousness in the guise of sovereign command but was actually strengthened and even ‘liberated’ by the modern substitution of fabrication for action. Two alternatives to the traditional imperative conception of law are then examined, the Roman lex and Greek nomos. Although both avoid the appeal to the ‘absolute’ associated with that tradition, only the image of law as lex challenges the priority of fabrication over action. By way of conclusion, a final tension that remains unresolved in the Arendtian framework is introduced, the tension between democratic freedom and modern constitutional authority. Put simply, how can the constitutional authority of the few be reconciled with the political freedom of the many?
Although Arendt’s work is sometimes credited with contributing to the prominence of ‘positive freedom’ in the lexicon of contemporary political philosophy, without further qualification this would be a quite misleading claim.9 Arendt revitalises the concept of freedom in a unique manner, forging an intimate connection between freedom and the ‘political’ by recovering the Aristotelian category of praxis and by invoking those historical moments since the French and American Revolutions when freedom has made its appearance in the world. And, most radically of all, not only does she disparage the modern liberal tradition for its role in the demise of political freedom; she extends the roots of its decline back to the Platonic turn which, in announcing the philosopher’s claim to rule, announces the priority of philosophy over politics and the safety of the philosopher over the action of the citizen.10
To recover the sense of freedom in praxis—freedom to rather than freedom from—is to recover the activity and experience of politics. This in turn is essential in order to come to grips with that aspect of the human condition that makes politics fundamental, namely plurality, the fact that men, and not Man, live on the earth and inhabit the world.11 As Arendt so forcefully puts it at the outset of The Human Condition, ‘plurality is specifically the condition—not only the condition sine qua non but the condition per quam—of all political life’.12 Urging the recovery of political freedom is not only a reaction to the rise of homo faber and then of animal laborans in the modern age, to the retreat away from political action into the fields of science and economics and the functionalism and instrumentalism of human activity that this retreat entails, but a response to older, related, but more deeply-engrained facets of our loss of freedom.
It is a response first to the Platonic turn towards isolated contemplation, the retreat from politics into philosophy represented allegorically in the parable of the cave, that begins the ‘great tradition’, with the philosopher seeking to escape from the darkness of the cave and the shadowy company of his fellow men to find an ideal truth in solitude. It is a response, secondly, to the Christian-theological turn inwards, epitomised by the Calvinist doctrine of internal salvation, which suggests that one can suffer from total ‘unfreedom’ in the ‘external world’ and yet still be free. Freedom, on the contrary, must enjoy a worldly reality and be meaningfully experienced in action. This is no mere idealistic pipe dream for Arendt; action is at the foundation of the human condition. It is the most significant, because most distinctively human, aspect of the vita activa.
The great tradition of philosophy, as well as the entire impulse of the modern age, is criticised as, in Arendt’s words, a ‘conscious attempt to divorce the notion of freedom from politics’ and thereby ‘to arrive at a formulation through which one may be a slave in the world and still be free’.13 Socratic philosophy and Christian theology begin this divorce by elevating above all else the vita contemplativa, the outstanding characteristic of which is described by analogy to the ‘motionlessness’ with which the inner eye ‘sees the shape of the model according to which [the craftsman] fabricates his object’.14 The modern liberal tradition continues to pursue this divorce by explicitly undermining action, and it is only accelerated with the subsequent Marxian emphasis on labour (the second reversal in the hierarchy)15 and Engel’s transformation of politics into the ‘administration of things’ that prefigures modern totalitarianism.16
Freedom in the modern liberal tradition is construed in Hobbesian terms as both materialist and personal. Based on the principle of ‘non-interference’, it is secured through a rational-legal framework in which the State exists only to protect individual interests. Over time this mutates into an obsession with aggregate welfare (economic ‘growth’), reflects the dominance of an instrumental rationality and ultimately succumbs to the ‘iron cage’ of bureaucracy. Political action, replaced first by homo faber in the early modern condition, is ultimately displaced by animal laborans, leading to modern ‘world alienation’ with the rise of a social sphere characterised by transience and anonymity. Only foreign affairs, because not (yet) reduced to economic factors, ‘seems to be left as a purely political domain’.17 The modernist worldview thus considers politics to be ‘concerned almost exclusively with the maintenance of life and the safeguarding of its interests’.18 For Arendt, on the contrary, politics is about more than ‘mere life’ and ‘personal interests’; it is about the world, which means a public realm that outlasts each and every individual.19
Arendt traces the fate of an alternative and authentic conception of freedom as part of the vita activa, from the pre-Socratic Greeks, through its demise as a result of the ‘Christian suspicion’ of and hostility to the public realm (particularly in Protestant salvation), to our distrust of it in the wake of the experiences of modern totalitarianism in the twentieth century. The experience of totalitarianism seems to suggest no more than that towards which the canon of modern political theory had already led us, namely, the conclusion that freedom is assured by guaranteeing a sphere of personal liberty rather than jointly exercised in the creation and maintenance of spaces for political action.
In the urge to rescue politics from philosophy by recovering a conception of political freedom, Arendt therefore takes aims at the entire Western tradition. The category of freedom has been lost to us because the tradition prioritised a dialogue with the self (the ‘dialogue’ between ‘me and myself’ in the course of contemplation) over the dialogue with others (participation and speech in the course of action). The first ‘dialogue’, the inward experience of freedom, in as much as its significance cannot be denied, is derivative. It is only in the second dialogue, which comprises the field of human affairs and politics, that freedom can properly be recovered:
[A]ction and politics, among all the capabilities and potentialities of human life, are the only things of which we could not even conceive without at least assuming that freedom exists, and we can hardly touch a single political issue without, implicitly or explicitly, touching upon an issue of man’s liberty … The raison d’être of politics is freedom, and its field of experience is action.20
Freedom, for Arendt, is emphatically not a phenomenon of the ‘will’, a question of one’s personal freedom to choose from a set of already existing alternatives, ‘x, y or z’. It is not about being able to manage our own strategic choices, selecting the most efficient means to ends that are predetermined. It is not even about being able to choose our ultimate goals or the absence of interference (or domination) by others in this choice and the means to pursue it. It is the freedom to ‘call something into being which did not exist before’, something that is not given ‘even as an object of cognition’.21 This conception of freedom, which depends upon man’s faculty to begin something new, reflects the centrality of the event of ‘natality’ for the human condition. ‘The new beginning inherent in birth,’ Arendt notes, ‘can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting’, and in so doing of performing the unexpected and even the ‘infinitely improbable’.22 It is only in the course of acting and speaking in the public realm that men reveal this potential to the world by revealing who they are, exercising their freedom by disclosing their ‘unique personal identities’.23
Political freedom, which must transcend both our motives and our intended goals, is not, as the analogy with the unexpected might suggest, wholly arbitrary.24 It springs from what Arendt somewhat enigmatically calls ‘principle’, and as she will later note in reference to the new beginning that is the American Revolution, ‘beginning’ and ‘principle’ have the same etymological root. Principle, in contrast to the judgement of the intellect and to the command of the will, is fully manifested only in action itself. But whatever the nature of the principle that inspires action—whether it is the love of equality, which Montesquieu called virtue, or fear and distrust—it is only in action that men can experience freedom, and only through action with others that political power is generated.25
This experience of action in the public realm, whether it is the creation and maintenance of political and social institutions or the promises that men make to each other in their daily lives, has no independent life outside of the continued conservation of those institutions or promises by those through whose action they were constituted and might be maintained.26 Although it is, to be sure, both unpredictable in nature and fragile in its existence, the idea of political freedom, which can be resurrected from our neglected traditions and historical experiences, still looms large in our imagination. Despite the apparent triumph of modern liberalism and the fear of any alternatives inculcated by the experience of totalitarianism in the twentieth century, we still hold out for this more demanding sense of freedom and the juridical consciousness that accompanies it. If the culmination of the great tradition of philosophy is the suggestion that freedom is only experienced in isolated contemplation or the pursuit of individual interests, then the episodes of modern revolution call into question such received wisdom as well as the traditional understanding of law which accompanies it.
The modern conception of revolution, inextricably bound up with the notion that the course of history suddenly begins anew, that an entirely new story, a story never known or told before, is about to unfold, was unknown prior to the two great revolutions at the end of the eighteenth century.27
The French and American Revolutions bring us closer to this conception of political freedom as it makes its appearance (or reappearance)28 in the world, and in doing so reveal its implications for our juridical consciousness. But it bears reiteration that the period from the late eighteenth century up to the middle of the ‘American century’ in which Arendt was writing is that of the triumph of a liberal worldview in which ‘negative liberty’ looms large and ‘political freedom’ has largely disappeared. These revolutionary events that Arendt recovers therefore present us with something of the exceptional.29 And yet although political freedom as experienced in the course of modern revolutions is in tension with the liberal tradition, as well as the Christian tradition and the great tradition of Philosophy which preceded it,30 at the same time it appears (in hindsight) to be an inevitable part of our modern juridical consciousness manifested most apparently in the concept of constituent power : ‘We, the people’ are the foundations of the modern constitutional settlement. The recovery of political freedom therefore trades both on the exceptionality of the revolutionary moment and on its unavoidability in hindsight; it remains with us in the way we conceive of constitutionalism in modernity—namely, in accordance with an ideology of popular sovereignty, irrespective of the extent to which it is fulfilled or betrayed in practice.
‘Crucial to any understanding of revolutions in the modern age,’ Arendt suggests, ‘is that the idea of freedom and the experience of a new beginning should coincide’.31 Unique about modern revolution is that freedom is conceived not as a mental category of thought, judgement and will, but as a category of action and, furthermore, in a manner that supersedes the weak sense of mere ‘liberation’ from the oppression of the ‘ancien régime’ and the constraints of the traditions that it embodied. It emerges in the strong sense of revealing our constitutional potentia, the capacity to create a ‘new beginning’ for political freedom, as well as institutions to preserve a space in which freedom can be exercised for posterity (freedom as the experience of the ‘We can’ rather than the ‘I will’).32 Of the self-conception of the American founders, the record of the American Revolution speaks an entirely clear, unambiguous language: it was not constitutionalism in the sense of ‘limited’, lawful government that preoccupied their minds.33 The main question for them ‘was not how to limit power but how to establish it, not how to limit government but how to found a new one’.34
Freedom needed, in addition to mere liberation, the company of other men who were in the same state, and it needed a common public space to meet them—a politically organised world, in other words, into which each of the free men could insert himself by word and deed.35
To capture the modernity of revolution is to capture the sense that more than merely liberation (from monarchy, despotism or oppression) is at stake, which generally trades on a negative conception of liberty as freedom from interference or domination. The constitution of political freedom is at stake, and this requires the establishment of political equality among citizens in a republic who are responsible for their own laws. In other words, it is about experiencing and constituting the freedom to govern in concert with others rather than the freedom from oppressive government by those in power. The Revolutions thereby arouse passions that have been dormant for man outside of classical antiquity, absent in the centuries between the fall of the Roman Empire and the beginning of the modern age. Of the sheer extraordinariness of this experience, the startling recognition of man’s capacity for beginning anew, Arendt is in little doubt. It is at the root of the enormous pathos we find in both the American and the French ‘revolutionary spirit’, a spirit which consists, she says, in ‘the eagerness to liberate and to build a new house where freedom can dwell’, and which is ‘unprecedented and unequalled in all prior history’.36
The event of modern revolution connects political freedom to a legal-theoretical enquiry with the emergence of this constitutional potentia, an idea with real juridical significance because it suggests the ultimate foundations of constitutional authority lie with the collective power of the people to constitute their own basic laws. From a juridical perspective, whilst the original political meaning of the Revolutions, was, as Arendt explains, that of demanding a return to the limited government of the past—the restoration of ancient liberties that had been slowly eroded by the monarchies in England and France—the outcome was far more radical, leading spectacularly to a whole new social imaginary, based on constituent power and popular sovereignty.37
It is not only that limiting government—in terms of securing guarantees against it, such as those found in a Bill of Rights, including rights of representation and voting—was historically nothing new; it is that such a conception of the constitution suggests political freedom is about procuring safeguards against government, when in truth it is about claiming a share in government.38 The difference is captured in the observation that although the idea had already developed that the people might rebel against a particularly despotic ruler, there was simply no way of describing ‘a change so radical that subjects became rulers themselves’.39
The turn towards understanding the constitution as an act of collective law-making rather than merely of liberation from the tyrannical laws made by others is irrevocably tied to the period of modern revolution. Wherever we locate the beginning of modern political thought, with Locke or Hobbes, Bodin or Machiavelli, the awareness that a new beginning could actually occur in historical time as a political phenomenon, that it could be, in Arendt’s words, ‘the result of what men had done and what they could consciously set out to do’, emerges only in the course of the late eighteenth-century Revolutions.40 Figures in the great tradition such as Hobbes and Locke might have been revolutionary theorists, in the sense of questioning dogmatic assumptions about the nature of authority and the activity of political philosophy, but they were emphatically not theorists of revolution. The strange pathos of novelty, ‘so characteristic of the modern age,’ Arendt remarks, ‘needed almost two hundred years to leave the relative seclusion of scientific and philosophic thought and to reach the realm of politics’.41
To be sure, we could view the revolutionary practice of the late eighteenth century as presenting less of a radical break and more of a continuity with the earlier seventeenth-century ideas of social contract, which liberated political philosophy from its theological straitjacket in its search for scientific or quasi-scientific foundations for authority.42 In the process of historical excavation, we could aim our sights back further still in the search for the decisive break from the traditionalism of the Middle Ages. According to Herman Heller, the ‘immanence conception’ of a pouvoir constituant that is actually capable of action, ‘which no longer shares the belief in the politically constitutive power of a transcendent God, but believes only in the populas, the universitas civium’, emerges as early as Marsilius of Padua in the late Middle Ages.43
But intellectual history is not our prime concern. It is only when the phenomenon of revolution makes its actual appearance in the world that newness is no longer considered merely the ‘gift of Providence’ but is ‘endowed with a reality peculiar to the political realm’.44 The historical examples of revolution—whether it is the American or the French, the later experience of the Paris Commune of 1871, the creation of Soviets during the Russian Revolution, the French Resistance during World War II, or the Hungarian revolt in 1956—show that individual men and women could ‘step forward from their private lives in order to create a public space where freedom could appear’. In doing so, it is claimed, ‘they rediscovered the truth known to the ancient Greeks that action is the supreme blessing of human life’.45 ‘Only in such revolutions,’ Arendt notes, ‘was there a direct link between the idea of participating in government and the idea of being free’.46
Once political action is perceived as a phenomenon capable of jurisgenesis or what might be called constitutio-genesis, the foundations of an immanent and mundane ‘authorising authority’ are firmly laid; our constitutional potentia is laid bare. The Arendtian notion of potentia is conceived
neither as a potential for asserting one’s own interests or for realizing collective goals, nor as the administrative power to implement collectively binding decisions, but rather as an authorising force expressed in ‘jurisgenesis’—the creation of legitimate law—and in the founding of institutions.47
Since power for Arendt, unlike violence, is always the power to act in concert with others, potentia is an inherently collective notion. Never ‘the property of an individual’ or merely instrumental to another goal, political power necessarily ‘belongs to a group and remains in existence only so long as the group keeps together’.48
The revolutionary notion of a ‘new constitutional beginning’ is, however indirectly, a juridical phenomenon because it expresses the idea that ultimately we are the authors of our own laws. Habermas will later develop this insight into a fully-fledged discourse theory of law and democracy. But for Arendt, and not for Habermas, this promise of political freedom, which can be glimpsed in those moments of revolutionary action, is ultimately betrayed in the course of the modern age.49 We need not get embroiled in the more general pathologies of modernity, however, because Arendt presents us with one quite straightforward and immediate reason for the failure of the constitutional potentia, namely, the persistence of the ‘absolute’ in our juridical imagination, due to the perceived need for extra-human foundations to serve as a guarantee for the new constitutional settlement. This need for an absolute persists because of our inability to move beyond a traditional conception of law as command. From this perspective, the idea of a revolutionary ‘new beginning’ presents less of a novel and tremendous possibility, than a familiar and perplexing problem,50 to square the circle of legitimacy of the new power and the legality of the new laws. In the realm of ideas, and in particular those which inform our conceptions of law, the revolutionaries on both sides of the Atlantic remained tied to the juridical tradition of the past and to the political ‘unfreedom’ that it entailed. It is the purpose of the next section to explain how.
Commentators frequently criticise Arendt for unduly favouring the US revolutionary tradition over its French counterpart, for exaggerating in her praise of the ‘political’ revolution in the New World and in her condemnation of the ‘social’ revolution in the Old.51 The relative success of the American Revolution is partly reduced by Arendt to a simple comparison of material conditions, the blunt fact, as she saw it, that ‘the predicament of poverty was absent from the American scene’.52 Arendt’s claim that political freedom is undermined if contaminated by the social question has received a great deal of criticism,53 but it can be bracketed here, because in juridical terms the burden of the tradition weighs as heavily on both revolutionary experiences. This similarity between the New and Old World Revolutions is often overlooked in the push to highlight their differences, which were not only material. Thus in historical terms, whereas the French Revolution took place against a backdrop of monarchical absolutism, the American revolutionaries already had the experience of limited government—the constitutionally limited King of the English constitution—on which to draw. Quite simply, as Arendt put it, ‘the more absolute the ruler, the more absolute the revolution will be which replaces him’.54 The men of the American Revolution avoided the pitfalls not only of an essentialist nationalism, but of any assumption that power and law are unitary, stemming from a single indivisible source, which was the ‘fateful blunder of the men of the French revolution’.55 The sources of power and authority were institutionally separated from the outset in America, with power vested in ‘the people’, and authority embodied in the constitution and exercised for posterity by the Supreme Court and the Senate.56
In contrast to the disorganised yet relatively homogeneous multitude in France, America already enjoyed constituted yet diverse pouvoirs constituants in the form of the self-governing bodies that preceded the Federal Constitution. Because the Declaration of Independence followed constitution-making in all of the 13 colonies, the doctrine of popular sovereignty could emerge without ‘unleashing the boundless violence of the multitudes’.57 The phenomenon of political action, as well as the distinction between power and violence, was already known to the founders.58 The social contract had actually been practised at a horizontal level in the form of real covenants, alliances and mutual promises (such as the Mayflower pacts) rather than merely theorised hypothetically as the hierarchical surrender to a Hobbesian Leviathan.
And yet although the American Revolution represents a certain success relative to the French, Arendt laments its ‘loss of the revolutionary treasure’, the failure to institutionalise political freedom, so that, in conformity with Jefferson’s wishes, each generation might enjoy the exhilarating experience of founding anew the constitution. Blighting the efforts of the founders from the outset—despite their having almost miraculously stumbled upon a way out of the revolutionary impasse and of avoiding the dangers of absolutism that so beset the French—was a failure of the juridical imagination common to both revolutionary traditions and of a different order than any material or institutional contrasts would suggest. So even the American Revolution, which was not burdened either with political or nationalistic absolutism, or with desperate poverty, still was burdened by the philosophical-political need for an absolute; it ‘still occurred within a tradition that was partly founded on an event in which the “word had become flesh”, that is, on an absolute that had appeared in historical time as a mundane reality’.59 That the need for a transcendent, transmundane source of religious or quasi-religious sanction to ground the new constitutional foundation persisted in America showed that ‘the problem of an absolute is bound to appear in a revolution’. Indeed, that such is the case, ‘we might never have known without the American revolution’, since in other respects it distinguished itself so clearly from the predicament of the Old World.
The Revolutions on both sides of the Atlantic faced the task of establishing a new authority, ‘unaided by custom and precedent and the halo of immemorial time’.60 The absolute was thus invoked to break the two ‘vicious circles’ of the legality of the new source of law and the legitimacy of the new source of power. Sieyes ‘solved’ this problem by drawing his famous distinction between pouvoir constituant and pouvoir constitué, placing the pouvoir constituant in a perpetual state of nature and anchoring power and law in the will of the nation, ‘which remained outside and above all government and all laws’.61