‘How Dangerous it Can Be to Be Innocent’:
War and the Law in the Thought of Hannah Arendt
You know of course that all our war criminals are ‘not guilty’. (Hannah Arendt to Mary McCarthy2)
MANY OPPONENTS—AND supporters—of recent US-led wars have suggested they were not only (or even) based on so-called ‘humanitarian’ or ‘antiterrorist’ grounds. They were quests by the United States for strategic influence; and in light of the current balance of power, that could only translate into a form of imperialism, whether judged pernicious or benign. Debates about the effectiveness of international law in recent wars have therefore coincided with a trend in both media and academia to describe the emergence of a new form of imperialism. It has also been suggested by those writing on contemporary imperialism that recent breaches of international law by the United States are not in keeping with some of the oldest democratic traditions of the country. Hannah Arendt’s work suggests that the opposite may more accurately be the case. There is a close relationship between imperial foreign policy and the foundations of the law. It is a relationship, Arendt wrote, that emerged at the very ‘beginning of the Western world … as a world’, that is, as the in-between space for politics.3
Central to Arendt’s explanation of the decline of the ancient Greek system of city-states was its inability to build a real empire. She located part of this failure in the Greek understanding of politics and law. Law established the boundary between political communities, and political relations were deemed to end at the border. The law was both this wall-like structure and a system of ‘precepts and prohibitions whose sole purpose is to demand obedience’ (PP 189). Greek conduct in war was often brutal, including the annihilation of the enemy, because no political relations and alliances with former enemies were deemed possible. In contrast, the Romans were more successful in building an empire because they understood law as relational, not just a boundary or a system of rules to obey. Treaties and laws instituted a relationship between peoples, including enemies that were first encountered in battle. The expansive alliance system of the societas Romana captured the new arrangement, Arendt noted, ‘in which peoples and lands were not only bound to Rome by temporary and renewable treaties, but also became Rome’s eternal allies’ (PP 186).
Law was an important part of the expansion of the Roman Republic and its transformation into the Roman Empire. As Mills describes,
For the Romans there was no ‘conflict’ of laws—Roman universalism demanded the integration of other territory as part of the empire, not mutual respect of different people and their legal systems. Given the Roman conception of justice as unitary, absolute, universal … international order was simply the universalization of the Roman order—a homogenization of law.4
But the Romans also suffered as a result of their conception of law. While they were able to establish a system of alliances and ties, the system itself was also without limits. As Arendt described, it ‘forced them against their own will—indeed absent any will to power or lust for domination—to rule [what they believed to be] the entire globe, a dominion that once achieved could only collapse’ (PP 187). Arendt’s history of the constitutive relationships between power, law and war placed imperial expansion at the centre of the analysis. Unfortunately, the centrality of power and the constitutive relationship between law and war and expansion has been neglected in much international thought. In this field, such questions are usually framed in terms of the extent to which law articulates principles, norms and procedures as a check on brute force. Law is either considered irrelevant by some schools of thought, and therefore unworthy of much consideration, or it is considered a constraint, and research accordingly centres on questions of compliance with the law. Consider the legal injunction that States must distinguish between combatants and civilians, and take all reasonable precautions to avoid targeting non-combatants. High levels of US compliance with this norm—even when dysfunctional in purely strategic terms—reveal the power of law in shaping war. We are frequently told of occasions where US commanders called off attacks on strategically important targets when the risk of civilian casualties was deemed too high. In such circumstances, the United States is considered to be complying with the laws of war that protect civilians. In each school of international thought, the question of the relationship between power, law and war has overwhelmingly been addressed as one of various degrees of compliance.
But what if we understood law as more than simply regulative or completely extraneous? Is it possible to consider law—and assumptions about compliance with the law—as productive of the social and political context that makes possible certain forms of war and certain relations of hierarchy?5 Law is not simply irrelevant. Neither it is simply a limitation with which, for example, US wartime actions must comply to remain legitimate. The point is not to spend time arguing that the Founding Fathers were explicit that when America reached its full potential it would walk the world stage undaunted, though indeed they did. Moreover, as Arendt wrote, European and later American imperialism was and is as ‘different from national conquests in border-wars as it was from true empire building Roman style’.6 Indeed, the word ‘imperialism’, she argued, ‘does not mean a thing if it is used indiscriminately for Assyrian and Roman and British and Bolshevik history’, and American history we might add.7 The imperial histories of the Roman and the American republics are different. Nonetheless, Arendt’s account of the relationship between law, war and imperial expansion suggests that perceived compliance with the law itself is partly productive of the global order in which contemporary war occurs.
Approaches to the relationship between law and power in international theory have been useful in capturing some important developments in the evolving system of the laws of war. Realist theory rightly argues that law alone can never be a match for political and military power; international society approaches and constructivism suggest why States often comply with various legal norms governing war that may not be in their narrow strategic interests; normative theory has suggested why the laws of war ought to be respected, and has raised the practical question of how to strengthen the law to provide a check to political and military power; post-Marxist scholars suggest that the law, when narrowly conceived, may be increasingly irrelevant given the resurgence of US imperial power. However, while capturing some central features of the current system of military power in relation to law, most international theory is limited in its capacity to capture this relationship, in particular the productive effect of law—what law can do. In pursuing this path with Arendt, this essay moves away from an understanding in which law is merely a constraint on pre-existing power. Instead, we address how law plays a role in producing not only imperial power relations, but also the subjects of the law, in particular the civilian casualties of Western military campaigns.
The status of law in any political order is always fragile. But law is necessary to provide an element of stability and regulation to the always unpredictable character of political action. Since the Greeks, Arendt argued, the tradition of political thought has ‘understood that laws are the stabilizing forces’, the only check on the inherent unpredictability and instability of all political affairs (PP 186; OT 467). There was nothing intrinsic to political action that was stabilising and limiting. When left unchecked, it was the nature of political action—which after all emerges in-between people acting and speaking together and is not mediated by material things—to be boundless, to overrun existing rules, to bring about the new and unexpected. ‘The stability of the laws,’ she wrote, ‘corresponds to the constant motion of all human affairs, a motion which can never end as long as men are born and die. The laws hedge in each new beginning and at the same time assure its freedom of movement, the potentiality of something entirely new and unpredictable’ (OT 465).
The purpose of law was to offer some stability and form to what could otherwise seem so fleeting and transient, political words and actions. This was part of the greatness of political action, and why boundaries and laws were so important.8 Arendt analogised the law with territorial boundaries, which ‘protect and make possible the physical identity of a people’. Laws similarly ‘protect and make possible its political existence’.9 Law itself does not bring about change. It can ‘stabilize and legalize change once it has occurred, but the change itself is always the result of extra-legal action’, the result of politics.10 Law and territorial boundaries provided the main limits to political action but, again, their capacity is limited; the ‘limitations of law are never entirely reliable safeguards against action from within the body politic, just as the boundaries of the territory are never entirely reliable safeguards against action from without’ (HC 191). The concept of territory is itself a legal and political as well as geographical term.
International law is similarly a product of customs, treaties and agreements between States.11 To be enduring, any political space has to be ‘hedged in by laws’. Without such conventions the world would truly be little more than a Hobbesian state of nature, or more accurately, in Arendt’s words, a desert, a ‘lawless, fenceless wilderness of fear and suspicion’ (OT 466). In the absence of such laws the space in-between that emerges through political interaction would seem so ephemeral. Arendt believed the territorial principle established by the European comity of nations was praiseworthy to the extent that it reflected that ‘the earth is inhabited by many peoples and that these peoples are ruled by many different laws’ (EJ 264). These laws and boundaries served a limiting function to the extent that each member of the comity respected the principle of sovereignty. However, as Arendt’s history of imperialism reminds us, this European comity and respect of plurality did not extend to the rest of the world, and indeed made possible the expansion of overseas empires. Indeed, crucially for our later discussion, Arendt never identified the law of this comity of nations as embodying potentially universal and abstract norms that could be divorced from force and imperial power.
Arendt did not focus in detail on the role of law in her study of the history of European imperialism at the end of the nineteenth century. She presented this new form of expansionist power politics as lawless, and spent little time addressing the extent to which European lawyers had sought to make the power grab as orderly as possible. In her accounts of the ancient political systems of Greece and Rome, however, she did draw explicit links between politics and law, war and imperial expansion. In the Greek model of politics and war, politics was understood as the realm of non-violent speech and persuasion among equals that reached its limit at the boundary of the polis and the doorstep of the home. This system emerged as their self-conscience solution to the problem of violence in human affairs. As Arendt put it, they sought to turn ‘struggle into an integrating component of the polis and the political’ (PP 171) and simultaneously to exclude war and brute violence from conduct between citizens. The limited space of the Greek polis was protected, indeed constituted, through the exclusion of non-citizens, slaves and women, who therefore had no formal protection from violence. Ideals of citizenship were modelled on the practice of hoplite battle by farmer-warriors who would return to the city after a short, sharp battle. All this, Arendt reminds us, was the peculiarly Greek response to the ‘annihilating element of brute force, which destroys both the world and the political sphere’ (PP 171).12
Legislative activities involved in building a system of laws were considered to be pre-political. Law-making was necessary to secure the structure of the public realm within which political action could then occur.13 But this law, as Arendt wrote,
was neither the content of political action … nor was it a catalogue of prohibitions … It was quite literally a wall … This wall-like law was sacred, but only the inclosure was political. Without it a public realm could no more exist than a piece of property without a fence to hedge it in. (HC 63–64)
Law, the Greek word nomos, was understood as constitutive of all subsequent political speech and inter-action, a necessary precursor for the properly political to begin. But the building of the protective walls around the polis contained an essence different from that of speech and persuasion among free and equal citizens. There was ‘something violent about it in terms of both its origins and its nature. It comes into being by means of production, not action’ (PP 181). The law is made, and as such ‘contains in itself the violent force inherent in all production’ (PP 181). This is captured in the notion that citizens are subject to the force of the law.
The means used to form the institutional, legal element of the Greek polis was not considered political, and neither was anything that went on outside the walls of the city. Law ceased to apply in interactions with other city-states. We have described the constitutive ‘negative exclusion’ of women, slaves and non-Greeks. This exclusion was so radical that anything outside the polis was deemed non-political. This is clear from the brutality of Greek conduct in war, especially against barbarians. Thucydides’ description of the brutal lessons the Athenians sought to impose on the islanders of Melos has always been cited by the realist tradition as evidence of the timeless and often brutal power struggle between groups. Clearly the Greeks waged war according to the principle that it is ‘might that makes right’. Foreign relations were necessarily violent. Moreover, in Arendt’s words, ‘negotiation and the conclusion of treaties [were] understood merely as the continuation of war by other means, the means of cunning and deception’ (PP 165). Such talk was not deemed to be political speech, and no real ‘ties and linkages’ were believed to emerge out of them (PP 181). The most important thing was the border, which was not a bridge that connected but a barrier that separated. Once the Greeks had annihilated their enemies, they would retreat ‘inside their walls, to be with themselves and their glory’ (PP 178).
The bulk of Arendt scholarship is now clear that the Greek model of politics (and war) was not Arendt’s, though elements of political agonism were attractive to her. Instead we find traces of a qualified endorsement of an alternative, though no less imperial, solution to the problem of war in politics and which emerged out of meeting in battle. The Greek solution to the problem was to define separate spheres and treat the legal boundary of the polis as the limit to authentic politics. But law can do more than secure boundaries and provide a structure of commandments that must be obeyed. Law can also institutionalise a relationship between people, that is, be constitutive of interaction in a newly public, political space. Arendt’s alternative example is that of the rise of the Roman Republic, which from around 200 BC emerged as the most powerful political entity after the decline of the Greek city-states and which eventually evolved into the Roman Empire. The Roman word for law, lex, Arendt wrote, ‘has an entirely different meaning; it indicates a formal relationship between people rather than the wall that separates them’ (HC 63). The spatial significance of law in relating what would otherwise be separate had enormous implications for the conduct of war and the earliest meanings of foreign policy in the West. Indeed, Arendt argued that this alternative understanding was the beginning of what we now think of as foreign policy.
The Roman army as an instrument of the republic was very different from the Greek hoplite force, and more adaptable to the needs of imperial expansion. The Roman legion-based system, in common with all military systems, reflected the society from which it emerged. Roman society was less insular and more diverse than that of the Greek city-states. Expansion into new territories provided economic resources and land to divert social conflict, and some power was shared between the aristocracy and lower classes. With a larger population, a professional army was established and higher casualty figures could be absorbed. During the course of a campaign, one single battle did not necessarily bring a decision, as it had done with the Greeks. ‘The real strength of the Roman Republic,’ as Antonio Santosuosso writes, ‘was the ability to remain at war until the enemy was exhausted, asked for a humiliating peace, or was utterly destroyed’.14 Vast expansion into new colonies ensued. The native aristocracy did not face inevitable annihilation. Rather, they were often placed in positions of power. It may have been humiliating, but it was a peace nonetheless, a peace with a treaty.
Greek and Roman foreign policy—which was imperial foreign policy—diverged in terms of their respective thinking about politics, law and war. War was the beginning of Greek political existence; but this was only to the extent that they understood themselves as institutionalising agonistic struggle in the polis—‘they became themselves,’ in Arendt’s words, ‘through conflict and then came together to preserve their own nature’ (PP 178). For the Romans, struggle with outsiders was not only an opportunity to discover the identity of the self; there was recognition, self-interested, imperial recognition, of the other. Indeed, Arendt ultimately explained the demise of the system of Greek city-states in these terms. The Greek understanding of law and war as pre-political came at a high cost, for they were unable to build an empire. They were unable to unite and join their colonies ‘in a permanent alliance’ (PP 187). It was simply beyond the Greek conception of what they were doing when they fought. The failure to ‘transform wars of annihilation into political wars,’ wrote Arendt, ‘… led to the ruin of the Greek city-states’ (PP 164).
What does Arendt mean by political wars? Anything political involves speech. She thus pointed to the Roman beginnings of the tradition of the ‘just war’ as the origins of Western wars accompanied by verbal rationalisations. Arendt is not writing in support of this tradition. The Romans, she wrote, ‘drew no line between aggressive and defensive warfare. “The war that is necessary is just”, said Livy, “and hallowed are the arms where no hope exists but in them”’ (OR 3). But the Greeks’ sharp, definitionally and spatially enforced distinction between political and non-political life meant that violence needed no justification and few normative limitations. War was far less likely to be accompanied by the language of justice; violence was understood as purely instrumental, not the beginning of a new relationship. But the Roman concept of warfare, as Arendt described, was ‘that unique and great notion of a war whose peace is predetermined not by victory or defeat but by an alliance of the warring parties, who now become partners, socii or allies, by virtue of the new relationship established in the fight itself and confirmed through the instrument of lex, the Roman law’ (OR 211). The end of the war and conquest of new territory resulted in the signing of a binding peace treaty, a lasting tie. Fighting a political war instead of a war of annihilation enabled the literal creation of a new political order, indeed a new world, a space in-between the former enemies. This political outcome was possible only because violent hostilities were ended before the complete destruction of the life and world of the vanquished.