Citizens and Persons: Legal Status and
Human Rights in Hannah Arendt
JUDGING FROM THE wealth of the discussion of ‘the right to rights’, Hannah Arendt’s analysis of the perplexities of human rights and the decline of the Nation State still resonates deeply in thinking about a just global order. Writing in the period after two world wars, Arendt called refugees ‘the most symptomatic group in contemporary politics’.1 Displaced from every State and welcome nowhere, such people were a symptom of a fundamental conflict between national sovereignty and the rights of persons who belonged to no political community, much less one that could protect their rights. Arendt argues these persons lack both citizenship rights and human rights, and thus ‘the right to have rights’, understood in terms of what refugees lacked: membership in a political community.2 It might seem that the answer to this perplexity might be to establish some form of citizenship beyond the State, but for Arendt that merely repeats the same problem at a higher level, since that world organisation (or even world government) could not guarantee human rights anymore than can the Nation State. As Arendt formulates the problem, the perplexities of human rights are not solved by promoting new laws, new instruments to assure compliance, or even new enforcement mechanisms. Yet Arendt holds that the right to have rights is ‘the only human right, the one right without which no other can materialize’.
Refugees are still the most symptomatic group in contemporary politics, but in a sense different from Arendt’s analysis of the right to have rights. While many conflicts emerge when the enforcement of human rights is considered, there is now at the very least a variety of functioning human rights institutions, including international and regional courts, and the International Criminal Court. With respect to displaced persons and refugees due to armed conflicts, there are now effective international treaties and formal organisations concerned with issues related to refugees and stateless persons, including the Geneva Convention Related to the Status of Refugees and the UN High Commissioner on Refugees. Given the expansion of international law in the post-war period, States are not the only institutions that can, however imperfectly, address the claims of denationalised, stateless and persecuted persons. However, refugees are symptomatic of the present era, to the extent that they are not only ‘stateless’, but often denied access to political membership. They have membership, but it is insufficient for a worthwhile human life. As such they are forced to migrate, and in so doing they are even more dominated than before. They do not, strictly speaking, lack the ‘right to have rights’ or membership in a political community; these descriptions seems ill-suited to current forms of vulnerability and ‘rightlessness’. They are not so much persecuted as denied entrance; and once they have entered, they have neither documents, nor legal status or citizenship. To assume that their predicament would be made better by citizenship as membership is to deny a now pervasive fact of modern polities: citizens live out their lives with many non-citizens in their midst, many of whom have no legal status. Only properly nested cosmopolitan institutions that preserve human dignity regardless of borders would help them beyond their double bind of domination at home and abroad. Perhaps their situation would be better addressed by Arendt’s republicanism; but the point of contrast is more republican, the distinction between citizen and slave, between those with recognised status and those who have none within their State of residence. These changes in the circumstances of politics make it likely that many democracies have become dominators, practising what Walzer calls ‘the oldest form of domination’, the domination of non-citizens by citizens.
Despite an astronomical increase in numbers of people who live their lives apart from their place of birth, this phenomenon is hardly new. The Greeks had their metics, who were integral to their economic life, and the status of denizenship was widely recognised in Europe and often entailed many enforceable rights, claims and protections. Today, domination, in the sense of falling under the control of another, is, more often than not, due to the difficult circumstances in which many people who lack legal and civil status live in the world today. To have a status, as Hegel remarks, is to be someone; to lack it is to be a nobody, the existence of whom is not even to be counted. As persons with no legal or civil status, these people are often subjected to coercive labour practices, which some consider forms of modern slavery. As John Bowe points out, American agribusiness takes it for granted that existing labour laws and standards do not extend to illegal aliens. This private domination is then reinforced by police violence and threats against illegal agricultural workers, who are constantly under the threat of deportation and State violence due to their lack of legal status.3 Migration patterns within developing States have produced a similar rise in the numbers who have left their entitlement and legal status in their community of origin. In India, for example, millions have migrated internally from rural areas to cities, in which they illegally occupy public lands, such as railway rights of way or public parks. Partha Chatterjee estimates that currently perhaps millions of Indians ‘may live in illegal squatter settlements, make illegal use of water and electricity, and other criminal acts’.4 Both internal and external migrants live without security and are treated as having the status of illegality by territorial States. For many populations within States but without status, the very conditions of life are subject to ongoing negotiation in a complex modus vivendi, often punctuated by violence and the threat of imprisonment, deportation and resettlement by political authorities. Illegality is thus a pervasive fact of liberal democracies.
The clear implication of this form of exclusion is that illegal immigrants or destitute persons are silently dominated by those who live in civil society and by the ongoing willingness of governments to ignore many of their own laws, such as those concerning safe labour conditions, minimum wage, and other forms of security from exploitation and violence. When State and local institutions are unwilling or unable to cope with pervasive illegality, the result is the failure of the rule of law in the republican sense, to the extent that the condition of illegality creates a form of law that fails to provide a space for freedom for millions of people. As the treatment of undocumented immigrants in developed countries such as the United States shows, such long-term and open violations of the rule of law do not consist merely in permitting illegal persons to continue residence and then deporting them with or without administrative hearings; they also involve granting an associated implicit permission for employers to engage in open and illegal practices of forced labour and confinement. It is for this reason that those without the appropriate status also lack the power to change their legal situation, while those having this status can unilaterally extinguish whatever statuses the dominated person may currently have.
The appeal to citizenship does not seem to designate a status that provides the basis for the ‘right to have rights’ as the ‘single human right’. But it does deepen the problematic character of citizenship, since citizens now dominate non-citizens, a fact that seems to colour such advancements as the right to asylum, the acceptance rate of which is remarkably low in most Northern countries. As internal migrants in countries like India show so compellingly, having citizenship somewhere can hardly be the basis for claims of inclusion and fair treatment. As compelling as the right to have rights is when thinking about the fate of the sort of stateless person that Arendt has in mind, I shall argue that such a derivation of rights status from some other status is plagued with irresolvable regress problems, since there would also be the right to have the right to have rights. This is because citizenship is after all not the right sort of universal status. As Arendt herself points out, we may generalise the discussion of status by deriving their membership from the human community as such, a claim which would be intelligibile only if there were something like that World State. I argue instead that Kant is correct: the statuses that bearers of rights have cannot be derived from anything else or prescribed by something else. Republicanism instead suggests that to be statelessness or to lack citizenship is to be a slave; to be treated as having ‘no rights but only duties’. Even Kant’s formulation is different: ‘the right to right’ rather than ‘the right to have rights’. The right sort of status is thus not something to be granted qua citizen but rather the universal status of being a person, that is, a legal status that is the basis for inclusion.
I shall argue for a non-derivable conception of legal person as a universal status, as a response to current dilemmas of membership, in three steps. First, I want to elaborate the philosophical differences between Kant and Arendt, but put them in the context of the republican arguments that they share. While Arendt thinks a world republic would be subject to the same difficulties as the State (and more, because of the lack of freedom is generalised), Kant held that freedom requires fundamental commitments to the rights of persons. Secondly, I develop the republican dimensions of this argument further, once it can be shown that there is a cosmopolitan form of republicanism that sees the rights of persons as central toward achieving non-domination. Lastly, I turn to the issue of legal status, and argue that the various forms of legal protections of the rights of persons, particularly their rights to freedom, are central to any non-statist understanding of a cosmopolitan legal order. In this context, we can sensibly describe the motivations for a cosmopolitan political order that might transform our understanding of personhood without reducing these demands to citizenship in a particular State. In a certain sense this will vindicate Arendt’s claim that there is no way to think of human rights ‘independent of all specific political statuses and deriving solely from the fact of being human’.5 Although it is clear that Arendt understands the significance of statelessness in terms of a republican conception of freedom, she does not seem to make the legal status of persons central to her analysis of freedom. The first step in this argument is to locate Arendt in the republican tradition, so that we can make the rather non-republican argument that refugees and stateless persons are dominated by citizens in such a way that it is now only contingently true that civitas is libertas.
Whether considered in republican or liberal terms, a central aim of the rule of law is to avoid arbitrary rule. Law imposes fundamental constraints on the exercise of power, including generality, publicity and non-retroactivity, and in this way helps to create, as Harrington puts it, ‘the empire of law, not of men’.6 In sharp contrast to Filmer’s view that ‘it is no law except it restrains liberty’7, law is seen as a necessary condition of freedom, at least in the sense of freedom from domination, here understood as arbitrary rule. Or, to quote Harrington again, any just political community aims at ‘freedom by the laws, and not freedom from the law’.8 But what is it to be ruled by laws and yet free? The familiar formal constraints of the empire of law and not men may lessen some forms of domination, but they hardly make it impossible, neither do they constitute all conditions for non-domination directly.
It might be thought that besides these constraints that limit the loss of freedom for subjects of the law, the rule of law also requires further conditions related to authorship of the laws. The ideal that the subjects of the laws must also be their author presupposes the citizenship of all those who live in the political community. Being the author of the law that binds one is not all that there is to the richer and more complex statuses that are themselves the creation of the law. Accordingly, the rule of law is not merely instrumental in bringing about some antecedently present form of freedom but is in part constitutive of it as political freedom—a status that can be had in no other way than through the laws shared by a community. Indeed, for Pettit, non-domination is achieved not through threats or coercion, but ‘by introducing constitutional authority’ that is so organised that it cannot itself become a dominator. These institutional conditions ‘will not just inhibit domination, but bring it to an end’.9 This authority of a ‘non-dominating interferer’ is thus constitutive of freedom. But this refers inescapably to the non-domination of each other qua citizens, and not to the non-domination of others as such.
But there is another, more individualistic and instrumental way in which Pettit talks about the constitutive role of citizenship as a status. Non-domination is also a form of power possessed by individuals who have control over their own destiny, and such control negatively requires ‘the power of any agent’ that is sufficient to ‘prevent various ills from happening to them’.10 This power makes the agent’s freedom from interference ‘particularly secure and resilient’, rather than being irreducibly contingent on the circumstances in which the agent acts. But what is it that gives these agents the necessary control to avoid such insecurity? It cannot be simply that constitutional authority comes with a list of rights and immunities that constrain its regime. Such authority does not even begin to address the possibility that it may even dominate those who do not have such rights because they lack citizenship status. The difficulty with Pettit’s republicanism can be traced to the use of ‘legal status’ as an unanalysed term, especially with regard to constitutional forms of authority that deal with laws and principles that require the courts and other institutional actors not to discriminate between citizens and non-citizens. What is lacking here is not some pre-given set of rights removed from the political process, but rather something that is closer to Arendt’s idea of ‘the right to have rights’.11