Between Politics and Law: Hannah Arendt and the Subject of Rights
ARGUABLY THE BEST-KNOWN and most frequently cited text in all of Arendt’s work—certainly in recent years—is the famous section of The Origins of Totalitarianism on ‘The Perplexities of the Rights of Man’, in which she argues that stateless people and refugees expose the limits of so-called human rights, inasmuch as these rights appear suddenly to vanish at precisely that moment when they might be required or invoked—that is, when one is no longer a citizen of a particular State, but a mere human, or nothing more than a human being. And arguably the most frequently-cited phrase in that text is ‘the right to have rights’, or the right, as Arendt puts it, to ‘belong to some kind of organized community’.1 But if the phrase ‘the right to have rights’ is well-known, it has not been especially well-received. More than a few commentators have pointed out its manifest circularity, or the sense in which it seems to place an effect before its cause. How can one have a right, they wonder, before one has any rights? And if one could have such a thing, than would not the same stateless people and refugees who, in Arendt’s estimation, reveal the paucity of all universal rights also reveal, and more explicitly reveal, that of ‘the right to have rights’? In what sense might it make sense to speak of a right to have rights?
In this essay, I want to offer an account of ‘the right to have rights’ that locates it within the context of Arendt’s treatment of the relationship between politics and the law, especially as it concerns her theory of action. I propose that, for Arendt, a right is not a property or a possession, but a capacity to act, and that we cannot divorce her discussion of rights from her theory of action. Moreover, I contend that, for Arendt, action—and by extension rights—cannot be neatly located either inside or outside of a formally constituted legal order, but emerges, as it were, on the border in-between lawlessness and the law, or the realm of the human and that of the citizen—what, more recently, Giorgio Agamben has dubbed ‘zoe’ and ‘bios’, or ‘bare life’ and a ‘form of life’.2 Or, to put the same point differently, according to Arendt, the capacity to act is both an ontological given (in that it is related to what she calls ‘natality’, or the ‘new beginning’ represented by the birth of each singular human) and an existential achievement (in that it requires, or is concomitant with, the creation of what Arendt calls a ‘space of appearance’, or a space of human plurality). Arendt’s extensive consideration of this paradoxical or circular aspect of action provides, I maintain, a framework or basis for interpreting the paradoxical, circular aspects of the phrase ‘the right to have rights’.
While Arendt’s work has always sparked controversy, and has never been without its detractors, the recent past has also witnessed the emergence of a new set of criticisms—criticisms levelled by a group of contemporary political philosophers who want to challenge what they see as the soft pluralism and nascent institutionalism inherent in her approach. For some, such as Alain Badiou, this involves returning in a surprising and iconoclastic manner to ‘the politics of truth’—of axioms and statements rather than opinions and debates.3 For others, like Jacques Rancière, it means rethinking the subject of rights, and characterising politics as that which concerns not the citizens of a constituted order, but what he calls ‘the part that has no part’, or those whose undeniable presence disrupts every order.4 Here I want to suggest that the vehemence of these critiques of Arendt overshadows what Rancière in particular might take away from her project. While I agree with Andrew Schaap’s assessment that Rancière is not, as Schaap puts it, ‘a closet Arendtian’,5 or committed to Arendtian principles in spite of himself, I nevertheless believe there is something to be gained by thinking of Arendt as ‘a closet Rancierian’, or that elements of her work inform elements of his.
It is unfortunate that even among extremely sophisticated political thinkers, ‘The Perplexities of the Rights of Man’ is often read in isolation—excised not only from the rest of The Origins of Totalitarianism, but from the rest of Arendt’s career as well. For unless it is provided with some context, this relatively short piece could easily be misconstrued as an uncomplicated, straightforward defence of institutions, or any formally constituted legal order. In other words, if we focus exclusively on ‘The Perplexities of the Rights of Man’, and allow it to stand in for Arendt’s work in general, or allow it to become what Susannah Young-ah Gottleib calls a ‘synecdoche … for her entire political thought’,6 we could be misled into believing that Arendt wants to locate politics entirely within the law, and that she sees no possibility for action, or for the benefits of public life, without the prior establishment of the law. As I hope to show here, however, Arendt’s position is hardly this simple. And there is more to be gained from considering a greater portion of her work than from using ‘The Perplexities of the Rights of Man’ as a foil, or as a tool for constructing an alternative to ‘Arendtianism’.
The effort to contextualise ‘The Perplexities of the Rights of Man’ could head in an inexhaustible number of directions, from its location at the very end of Arendt’s long consideration of ‘Imperialism’, to its relationship with Arendt’s biography and her own experience of statelessness. But in this essay I want to remain, initially at least, within the realm of political and legal theory, and with what we might call Arendt’s ‘major’ texts—those which she published in her lifetime, and which have since received a significant amount of critical attention, with particular emphasis on The Human Condition and On Revolution. I do so because, while I want to suggest that Arendt’s position is complex, I do not want to suggest that it is arcane, or that, up until now, it has somehow been hidden from view. On the contrary, Arendt set out her opposition to institutionalism, and to any exclusively juridical or constitutional conception of the public sphere, in documents that are themselves entirely public and available to almost anyone who chooses to read them.
The general framework for my interpretation of Arendt’s career is indebted to a recent article by Peg Birmingham, entitled ‘On Action: The Appearance of the Law’. Here Birmingham proposes that, between The Human Condition and On Revolution, there is a kind of break in Arendt’s work, and especially in her treatment of the law. If, in the former, Arendt relies on a recognisably Greek model of the law as a wall or a border, and thus something that can be established only by a sovereign decision, in the latter, she adopts a more Roman conception of law as alliance, or as something that emerges not out of a decision, but out of political praxis. Inasmuch as it emerges out of politics, Arendt concludes, law can also be altered by politics, or by human action.7 In other words, not just violence and sacrifice, but words and deeds constitute the law.
While I am not entirely certain that this break is as sharp as Birmingham implies, I nevertheless agree that Arendt’s work represents an alternative to the Schmittian theory of the exception, and that it reveals the copious space that exists between the law and its suspension. Drawing on Birmingham’s insights, I propose that, in her earlier work, and especially The Human Condition, Arendt develops a complex topography of the law, or of the relationship between politics or action and the law. In the later work, on the other hand, she supplements this topography with a temporality, or an account of the relationship between the event of the revolutionary act and the duration of the laws that it constitutes. The result is a kind of political ontology, or a model of the space and the time of the political, that might serve as a ground for our understanding of ‘the right to have rights’.
The simplest gloss of ‘The Perplexities of the Rights of Man’ would treat it as a reinvention of Edmund Burke’s argument that we cannot have rights as humans but only as members of some particular, limited national or political community—an argument to which Arendt explicitly refers, although not without some measure of irony.8 Outside of such a community, Arendt seems to suggest, in what she calls the ‘mere givenness’ of our natural existence, humans are essentially different and discrete. Inside of one, on the other hand, they are able to construct an artificial ‘second nature’, or a world in which they can meet one another as equals, capable of articulating their own opinions and making meaningful judgements about the opinions of others. In this interpretation, ‘the right to have rights’ would be nothing more than a right to belong to an order or a State—a right, in other words, to something more than a natural existence, or a right to a form of life that has been conventionally arranged.
That Arendt would reject such a reading is already signalled—however minimally—in ‘The Perplexities of the Rights of Man’ itself, where she notes that no matter how organised a political community might be, it is always, as it were, threatened by that which lies outside of it and by the ‘mere givenness’ that it endeavours to exclude. ‘Since the Greeks,’ Arendt writes, ‘we have known that highly developed political life breeds … a deep resentment against the disturbing miracle contained in the fact that each of us is made as he is—single, unique, unchangeable. The whole sphere of the merely given,’ she continues, ‘is a permanent threat to the public sphere, because the public sphere is as consistently based on the law of equality as the private sphere is based on the law of universal difference and differentiation’.9 Thus, already in ‘The Perplexities of the Rights of Man’, there is a sense in which, even while it gets excluded from the public sphere, the ‘disturbing miracle’ of ‘mere givenness’, or the singularity of each human birth, is also included in the form of a threat—indeed, a ‘permanent threat’.
The topology, then, of inclusion and exclusion, citizen and human, or the one who is a member of an ‘organized community’ and the one who is a member of nothing more than humanity as such, is considerably more tangled than it appears at first glance. And this complexity is developed much further in The Human Condition, which was first published seven years after The Origins of Totalitarianism, in 1958. Here Arendt associates politics, not with institutions, but with action, or the uniquely human ability to begin something new. She distinguishes, as is well known, between work and action. Whereas work involves creating an object, and is typically conducted in isolation, action involves performing before an audience, and has no objective remains, save the memory and the judgement of others. Thus Arendt associates action with what she calls a ‘space of appearance’. And she insists that this space ‘comes into being wherever men are together in the manner of speech and action’, and thus ‘predates all formal constitution of the public realm and the various forms of government’ or ‘the various forms in which the public realm can be organized’.10 In this sense, then, politics precedes the law. It is already ‘there’, or potentially there, as soon as humans appear before one another.
But, for Arendt, this does not mean that politics can be entirely divorced from the law, or that it can remain independent of every regulating limit. Rather, according to the position Arendt proffers in The Human Condition, politics or action and the law exist in a kind of interminable and unstable tension with one another. On the one hand, Arendt says, action is essentially ‘boundless’ and ‘unpredictable.’ It operates by creating new relations between people, and thereby creating new public spaces, as well as new forms of power. On the other hand, she continues, this process is inherently insecure; for action has a tendency to exceed the public space that it creates. The law functions as a boundary or a wall that encloses the space of action in order to protect it—from external enemies, to be certain, but also from action itself. As Arendt puts it, ‘action not only has the most intimate relationship to the public part of the world common to us all, but is the one activity which constitutes it’. But this public world ‘could not endure’ or ‘survive the moment of action and speech itself’ without what Arendt calls the ‘stabilizing protection’ of ‘the wall of the polis and the boundaries of the law’.11