Law and the Space of Appearance in Arendt’s Thought
JOHAN VAN DER WALT*
A life spent entirely in public, in the presence of others, becomes, as we would say, shallow. While it retains its visibility, it loses the quality of rising into sight from some darker ground which must remain hidden if it is not to lose its depth in a very real, non-subjective sense. The only efficient way to guarantee the darkness of what needs to be hidden against the light of publicity is private property, a privately owned place to hide in.1
THE CONCERN WITH the appearance of the world in human consciousness, the fundamental concern of the tradition of European philosophical inquiry that came to be called phenomenology, runs like a constant thread through Hannah Arendt’s work. But this passage from The Human Condition marks the specificity of her place within the phenomenological tradition like no other. It marks the way she focused the phenomenological concern with the appearance of the world on the way the world comes to light when political action sets forth and leaves behind the private concerns of the home. The central aim of this essay will be to illuminate this specificity of Arendt’s contribution to phenomenology in terms of a fundamental phenomenology of law. In pursuit of this aim it will also highlight the resonances in Arendt’s work with two other major phenomenologists of her time, namely, Martin Heidegger and Maurice Merleau-Ponty.2
The reading of Arendt that will be expounded in this essay will go through a number of phases. The first phase responds to the need to understand clearly what is at stake when phenomenology turns its attention to the phenomenon, to that which appears. This is the focus of section II. (‘Appearance, Reality, Truth’). The second phase of the reading illuminates the kinetic trajectory that informs the word ‘appearance’. Appearance concerns the transitory, intransitive or in-transit interim of a (this or that) coming to light of the world from the dark margins of consciousness into the illuminated centre of human intentionality. The dark margins of consciousness continue to haunt and circumscribe enlightened or illuminated intentionality. These margins require phenomenology to retrace its own steps again and again so as to capture or recapture that which has again eluded and will ever again have eluded intentionality. This is the point of Husserl’s obsessive phenomenological reductions. Husserlian phenomenology, argues Maurice Merleau-Ponty, thus became a Sisyphean concern of consciousness with its own constituting boundaries, with that which always remains overlooked so as to constitute intention. Martin Heidegger would emphasise in comparable regard the irreducible lethé that marks the aletheia or aletheuein of phainesthai, the sombre concealment from which the disclosure at issue in any coming to light cannot extract itself. These Husserlian and Heideggerian themes are clearly evident in the passage from The Human Condition with which we began. They are expounded in more detail in section III. (‘Appearing: The Phainesthai of the Phenomenon’).
Section IV. (‘Her Shadow and its Shade’) turns to Arendt’s engagement with the phenomenon of poverty. Arendt understood well that poverty contaminates the space of appearance. That she did not perceive this contamination as a political concern, perhaps the fundamental concern in modern politics, constitutes, phenomenologically speaking, a remarkable failure. She was well aware of the way poverty appeared on the public scene of modernity, but she wilfully lamented and resisted this phenomenon for reasons of a nostalgic attachment to an earlier politics that was unconcerned with poverty, a politics that according to her was evident in classical Greece. This nostalgia moved her to confine concerns with bodily needs to the private sphere. This nostalgic move was shockingly out of touch with the times in which she lived, but it also went hand in hand with a profound insight, the insight that the private domain shields and must shield from politics the existential concerns of the human heart. Humans do not just live, they exist emphatically concerned with the ultimate worth and worthiness of their lives. This libidinal concern with worth and worthiness not only needs protection from public scrutiny. It exists as such by virtue of the desire to withdraw from everything that has become public. It therefore cannot and should not be the concern of politics. This is the profound counter-side of her spurious thought that poverty is not a political concern.
Section V. (‘The Literary Exception’) turns to the place of the law in Arendt’s thought. The law would seem to be an endpoint for Arendt, a culmination of self-evidence, a termination of appearance. She seems to espouse an understanding of natural law and natural legal principles that already govern polities prior to the positive political articulation of the law. Nothing new can appear from the dark recesses of human existentiality as far as the law is concerned. This is evident from her insistence that political revolution is fundamentally a matter of restoring timeless principles of law that exist prior to their revolutionary enactments. Law thus seems to be exempted from the space of appearance. It is not a phenomenon. The law does not appear. It always exists already fully apparent. Considered in terms of the opening quotation from The Human Condition above, the law thus conceived cannot but be shallow. The law is or must be assumed to be ‘entirely … public’ and therefore shallow. The apparent shallowness of the law is recognised by no one less than Rawls.3 Section VI. (‘Literary Depths and the “Shallowness” of Law’) nevertheless goes on to argue that the law is not shallow. The apparent shallowness of the law concerns, in fact, the inverse or negative depth of the law. The inverse depth of the law consists in the way it deliberately takes leave of or withdraws from the existential depths explored in literature. Law and politics are not and should not be concerned with compassion, but literature is and can be so at heart’s desire, Arendt contends. Section VI. reads this distinction between literature and politics as an invitation to explore a relation between law, politics and literature that takes leave of the edifying view of this relationship currently on offer in ‘law and literature’ circles, the edifying view in terms of which law can gain insights from literature.
The completely different understanding of the relation between law and literature that comes to the fore in Arendt’s thought illuminates the directly opposite trajectories of appearance evident in literature, on the one hand, and law, on the other. Law and literature may traverse the same space of appearance, but they do so in directly opposite directions. The inverse trajectories of law and literature do not render the one profound and the other shallow. They render the one positively and the other negatively profound. At issue here is not the shallowness of law when compared to literature, but the inverse or negative depth of law.
Section VII. (‘The Inverse or Negative Depth of the Law’) illuminates the legal theoretical gains evident in the Arendtian regard for the negative or inverse depth of the law. It shows how this understanding of the law helps us to come to terms with the legal theoretical and doctrinal puzzles that Arendt raises in response to the Eichmann trial. Section VIII. (‘Back to the Beginning’) briefly returns to reflect on the passage from The Human Condition with which we began, in view of the thoughts expounded in its wake.
A number of key passages in On Revolution show how much Arendt’s political thought pivoted on key concerns of phenomenology. Close to the beginning of the work she makes an almost programmatic enunciation in this regard:
For political thought can only follow the articulations of the political phenomena themselves, it remains bound to what appears in the domain of human affairs; and these appearances, in contradistinction to physical matters, need speech and articulation, that is, something which transcends mere physical visibility as well as sheer audibility, in order to be manifest at all.4
Arendt clearly moves very close to Heidegger here. At issue in this passage is not only the phenomenological concern with phenomena, but more specifically the hermeneutic turn in phenomenology that Heidegger would bring about in Sein und Zeit.5 The result of this hermeneutic turn was a heightened regard for linguistic disclosure rather than empirical observation (mere visibility/sheer audibility) as the source of appearing and appearance in human concerns. Appearing or appearance, phainesthai, would become for Heidegger a matter of coming to language or being on the way to language, as the title of one of his later works suggests.6
What the phenomenologists, hermeneutic or epistemological, had in common was the conviction that truth, Being or reality was not a fixed object beyond the empirical observations or interpretive understanding of the subject, but only and exactly that which comes to the fore in the intentional observation or understanding of the subject. Arendt undoubtedly shared this frame of mind, and she invoked it in poignant fashion to analyse the cause of the interminable suspicions that informed Robespierre’s ‘terror of virtue’ during the French Revolution. As she puts it:
Theoretically, the answers to these questions may ultimately lie within the range of one of the oldest metaphysical problems in our tradition, the problem of the relationship between being and appearance, whose implications and perplexities with respect to the political realm have been manifest and caused reflection at least from Socrates to Machiavelli. The core of the problem can be stated briefly and, for our purpose, exhaustively by recalling the two diametrically opposed positions which we connect with these two thinkers.7
For Socrates, contends Arendt, appearance is the truth in human affairs. There is nothing behind appearance which politics can or ought to pursue. Machiavelli’s thought, in clear contrast, is informed by the assumption of transcendent Being, the assumption of a transcendent reality beyond the worldly realm of mere appearance. For Machiavelli, the wordly realm is all that counts in politics. The Christian doctrine of two worlds, the heavenly and earthly, thus released the earthly from the constraints of truth and freed it up for the strategic pursuit and maintenance of secular power. This Christian understanding did not make truth irrelevant for politics. As Arendt, points out, Machiavelli was as concerned as Socrates with ‘hidden crimes’, but for him such crimes were known and punished by God, not by men. The acts of the sovereign rulers were therefore not to be judged on earth.8 Socrates, argues Arendt, believed in the inevitability of the disclosure of truth in politics. For him, the truth of politics could not but appear. This was so because the political actor already and inevitably appears to himself. There was an internal division in the political self between ‘the agent and onlooker’. In order to deceive others, the agent also had to deceive himself. That is why, contends Arendt, the Greek polis necessarily was a world of phainomena, of true appearances:
[T]he polis, and the whole of the political realm, was a man-made space of appearances where human deeds and words were exposed to the public that testified to their reality and judged their worthiness. In this sphere, treachery and deceit and lying were possible, as though men, instead of ‘appearing’ and exposing themselves, created phantoms and apparitions with which to fool others; these self-made illusions only covered up the true phenomena (the true appearances or phainomena), just as an optical illusion might spread over the object, as it were, and prevent it from appearing.9
Arendt’s argument is ultimately that deception was a hard feat to pull off in this world so intent on letting the truth come out, on letting it appear. It was ‘too ambitious’, she says, for in order to deceive others effectively, the agent first had to deceive himself, his inner onlooker, just as we still say today that an actor must make a role his own to make his acting convincing to others.10 Her argument is compelling to the extent that it surely must have been more difficult to deceive in the close-knit political community of the Greek polis where public scrutiny was a matter of daily routine, than it is in the endless bureaucratic corridors of power of modern societies. It must surely have been much more difficult in the former, constantly and coherently to maintain a facade in which the actor did not and could not believe himself, than it is in the latter. But the argument surely cannot claim to deal comprehensively or conclusively with the problem of treachery and deception. It does not deal with the fact that pathological deception—the hidden crime—remains a problem with which the phenomenological concern with appearance, in the whole phenomenological tradition, has yet to/will always have to come to terms. Was the Greek polis really so innocent, so thoroughly candid, so thoroughly disclosing, so thoroughly phenomenological, one might say, as to render ‘the phenomenon of deception’ an insignificant question? Arendt and the phenomenological tradition would seem to assume the fundamental innocence of appearance. For them ‘the phenomenon of deception’ would seem to be an oxymoron that need not detain us for long. This is the weak side of her argument, and the weak point that must always haunt the phenomenological tradition. It is a weak point, however, that will and must also continue to haunt earthly existence as such. It can only be overcome, rendered a non-problem, by the religious assumption of an omniscient God that really knows the hearts of men and will ultimately punish the wicked. It is only realistic to assume that many hidden crimes and treacheries have indeed gone down in history completely undetected; hence perhaps the ultimate allure of faith, religion and God.
Phenomenology cannot play God. It accepts the irreducibly and irredeemably finite and perspectival nature of human cognition. But it can claim confidently enough that the inescapable and vast variety of perspectives among humans, conditioned as it is by the irreducible plurality of human existence, affords humans at least provisionally reliable cognitions of epistemological and political essentials—that which everyone from their varying perspectives can consider as incircumventible perspectives and therefore incircumventible ‘truths’ of human co-existence. These essentials never attain to the conclusive stability of Platonic ideas, but the loss of this Platonic certainty also rids cognition of the equally Platonic idea of a false world of mere opinions, as Arendt noted well with reference to Nietzsche’s famous observation in this regard: ‘We have abolished the true world. What has remained? The apparent one perhaps? Oh no! With the true world we have also abolished the apparent one.’11 Once rid of the impulse to purchase the burdensome insurance policy of absolute truth, humans may regain the simple experience of the world, the simple experience of the ‘there is’ of the world, as Merleau-Ponty wrote.12 Phenomenology clearly anticipated the Rawlsian insight that public reason offers us a common world even though and exactly because it does not seek to offer us the ultimate truth of things.13 I shall return to this point below.
Arendt makes her point regarding the political and phenomenological truth of the world of appearance against the background of the French Revolution and Robespierre’s ‘terror of virtue’. If there is a lesson to be learnt from Robespierre’s ‘terror of virtue’, she maintains, it is this: An undue concern with truth and truthfulness in politics cannot avoid becoming murderous, and cannot hope to create and maintain anything like a lasting and stable polity. For there is no way that the best of human hearts can prove itself to be fully virtuous; there is no way that any political institution can claim to reflect the full truth of human existence. If politics is to pursue perfect virtue and conclusive truth, it must turn into the constant elimination of suspected vice and the constant destruction of ever-imperfect institutions. Thus did the French Revolution come to devour its children and fail to produce lasting legal institutions. The American Revolution was relatively bloodless and produced a lasting polity with a lasting constitution exactly because the American founders made peace with the vice of men and believed it could be contained adequately enough through political participation and the varying perspectives afforded by the free competition of multiple opinions. As Arendt puts it, ‘their common sense was never exposed to the absurd hope that man, whom Christianity had held to be sinful and corrupt in its nature, might still be revealed to be an angel’.14 Phrased in phenomenological terms, one can say they trusted that an on-going exchange of admittedly finite perspectives would safeguard the minimum levels of essential knowledge and essential virtues required for durable human co-existence, notwithstanding the possibility, likelihood or inevitability of less than virtuous and less than truthful perspectives also taking part in these exchanges.
The times through which Arendt lived would not spare her an awareness of vicious political crimes and radical evil in politics. She was duly conscious that such crimes and evil can also ‘make their appearance’. ‘[W]herever they make their appearance,’ she observed, ‘they transcend’ and ‘radically destroy’ the ‘realm of human affairs and the potentialities of human power’.15 She can perhaps be read to have phrased this view more rigorously when she earlier contended that the power of totalitarian movements consisted exactly in not appearing, that is, in not showing or revealing itself, in remaining secret and secretive, in consistently avoiding any recognisable shape.16 The latter position is more consistent with the phenomenological politics that we are distilling from her work in this essay; more consistent with her own analysis of deception as non-appearance or an obstruction of appearance. Totalitarian movements are indeed fundamentally ‘anti-phenomenological’ in the way they destroy the interaction and inter-interrogation of multiple political perspectives; in the way they refuse contestation. They reduce the human condition of plurality to a oneness that monopolises interrogation murderously, if not indeed to a oneness achieved through murder; a oneness by murder that neither bothers nor needs to interrogate, but simply annihilates otherness.17 Claude Lefort, life-long friend of Merleau-Ponty and editor of L’Visible et l’invisible, may well have taken much inspiration also from this work when he later defined totalitarianism in terms of its suppression of plurality and fundamental assumption of the oneness of the people.18 The most consistent way of describing such totalitarian destructions of plurality phenomenologically would be to invoke not the appearance of some or other pathological variety of the political, but the complete dis-appearance of the political as such. The Arendtian concern with the appearance of the political must therefore endorse a constant multiplicity of political opinions and factions.19 Her concerns with appearance and plurality go hand in hand.
Be that as it may, Arendt did not entertain the notion of the innocence of ‘normal’ or ‘healthy’ democratic politics, the innocence of appearance. Getting rid of the burdensome insurance policy of absolute truth, according to her, was not going to eliminate the risk of serious political harm that might well have spawned the quest for that policy in the first place. It might at best spare us the excess harm to which that policy itself often gave and gives rise. Arendt was well aware that the finite perspectives that inform all political action invariably doom politics to cause unforeseen harm, however much it might have been contemplated and executed in good faith; hence her regard for the crucial role of forgiveness in human politics. Nothing new would ever appear in the world without forgiveness, for no new action can ever be taken again without an act of forgiveness:
Without being forgiven, released from the consequences of what we have done, our capacity to act would, as it were, be confined to one single deed from which we could never recover; we would remain the victims of its consequences forever.20
One could tie up this thought by contending that appearance requires forgiveness; forgiveness conditions appearance. There is thus an intrinsic relation between appearance, forgiveness and giving. A certain civility and generosity sustain the world and the possibility of new worlds. Appearance gives and forgives the world.
Appearance nevertheless does not always give us our daily bread, as the pervasive appearance of poverty makes all too clear. Arendt was remarkably cavalier about this, as we shall soon see. But appearance does give us whatever existence we have. It does so by way of an emergence, an event of disclosure that draws or redraws the line between the disclosed and the undisclosed, the visible and the invisible, the known and the unknown, the comprehensible and the incomprehensible. Natural human consciousness, a pervasive aspect of the human condition, consists in an act of overlooking that allows for vision or sight. Within the window of vision opened by this act of overlooking, modern science and epistemology constructed a paradigm of knowledge that pivoted on a subject–object relationship and the endeavour to ensure the subject mirrors the object adequately if not perfectly. But the windows of vision that open by acts of overlooking precede the subject–object-oriented paradigm of science. The subject–object paradigm of science comes later. It articulates itself within a space already opened by the fundamental act and fact of human intentionality, already opened by the window of intentional looking and overlooking.
Science is thus already far removed from the human being’s initial encounter with the world. It is far removed from the way things appear to humans, far removed from the thing itself, die Sache selbst. This was Husserl’s opening gambit with which he launched a mode of philosophical inquiry that would first become known as phenomenology, as he himself called it, then as hermeneutics, due to Heidegger’s intervention, and still later as deconstruction, as Derrida would have it. Zurück zu den Sachen selbst (‘back to the things themselves’) was Husserl’s call in response to his perception that modern science was increasingly losing touch with human existence, that is, with the lived world or life-world of humans.21
The phenomenological return to the things themselves and the method through which it seeks to capture the essences of things are ever-incomplete and interminable, contends Merleau-Ponty. Phenomenology seeks to say what remains unsaid, it is an eternal recommencement—‘[l]e philosophie dit encore les inédits, est un commençant perpetuel’.22 Husserl’s transcendental consciousness, claims Merleau-Ponty, was not Kant’s time-proof transcendental set of categories and forms of perception, but a historically contingent and precarious undertaking that had to retrace its own steps continuously. In his own work Merleau-Ponty invokes the notion of a bodily existence that precipitates a now errant, now re-assembled visibility—‘la visibilité tantôt errante et tantôt rassemblée’.23 And this incessant errancy and re-commencement, Merleau-Ponty points out, phenomenology shares with literature and art. He also invokes in this regard a thought that is central to Arendt’s work, namely, the natality of history, ‘l’histoire à l’état naissant’.24 Arendt can nevertheless be said to have added something unique to this regard for the natality of history that is crucial for her understanding of law and literature and the difference between them. It is tempting to say that she exempted law from the exploratory phenomenology of literature and art that Merleau-Ponty points out here. But this would not be the full story, as we shall soon see. Law indeed comes forth from the nascent state of things by taking leave of literature, by splitting off from it. As will become clear below, the birth of both law and literature consists for her in their splitting up and veering off into different and quite opposite directions. This is a crucial move in her thinking that guides one towards a profound phenomenology of law, that is, to a profound understanding of the way the law first appears in the world.
On the basis of this phenomenology of law, resolutions of some of the oldest conundrums in legal theory—notably those that came to the fore in the Eichmann case—suddenly become plainly visible, as we shall see below. But the splitting-off that takes place between law and literature does not mean that they no longer share the space of appearance. They continue to do so, but they do so differently. An incisive phenomenology of law must mark both its abyssal difference from and its intimate proximity to literature and art. The law is fundamentally different from art and literature and does not tolerate facile translations of literature into law, as Richard Posner notes well,25 but it remains close to literature because of the way it shares with literature the same space of appearance.
Legal theory’s prolonged struggles with the conundrums in the Eichmann case may well relate to the fact that it has all along been addressing them from too far, that is, from within the confines of a positivist legal scientific discourse that is already miles away from the way the law appears in the world, miles away from the things at issue when the law first appears. Arendt’s phenomenology of law casts light on these conundrums by affording legal theory a return to the fundamental thing that takes place when we begin to call something law, that is, by affording legal theory a return to the thing [of law] itself. But in the same move that would come to cast so much light on the law, she would also allow a shadow to fall over her work. We need to retrace our steps and address this shadow, this blind spot in her phenomenology of law.
Arendt’s diagnosis of the Jacobin terror in On Revolution highlights the spurious link it effected between politics and compassion, and more specifically, the link between politics and compassion with the poor.26 The diagnosis is, on the one hand, informed by a strong and accurate intuition regarding the need to sever politics from passion of whatever kind, compassion included. It is nevertheless also deeply misguided in the way it appears to equate or at least conflate the self-evidently legitimate rational political concern with poverty, on the one hand, and compassion with poverty, on the other. A critical engagement with Arendt’s thought on this count must show up her failure to distinguish clearly and more thematically between the rational political concern with poverty and compassion with poverty. Her contention that poverty is not a political concern is scandalous, as I have averred above, because of the way it nostalgically reduces the political to a romantic, nostalgic and misguided concern with pure