Law beyond Command? An Evaluation of Arendt’s Understanding of Law


Law beyond Command? An Evaluation
of Arendt’s Understanding of Law



HANNAH ARENDT’S ENTIRE body of thought is motivated by one central impetus—the recovery of experiences and modes of perceiving and being in the world that were either lost to time, displaced by theoretical prejudices or tragically erased by events. Her goal, as she saw it, was not to return us to the past but instead to recover forgotten treasures, to retrieve the ‘pearls and the corals in the depths’ so that we might better understand where we are and where, more importantly, we went wrong.1 This is why time and again she reaches back into the pre-philosophical experience of the ancient polis to lay bare what she sees as the true meaning of action and politics. For Arendt the true meaning of political action consists in ‘the joy and the gratification that arise out of being in company with our peers, out of acting together and appearing in public’.2 This meaning was lost on account of venerable misunderstandings that distorted the basis of political life and were to prove fateful for the course of Western history. The most important of these was the substitution of action understood in terms of ‘making’, of instrumentally crafting nature and human beings in accordance with a preconceived image, for intersubjective ‘doing’ and ‘speaking’, action-in-concert. This substitution proved fateful insofar as it replaced plurality and freedom, the essence of the polis, with the fundamentally anti-political categories of violence and domination, and thereby cast rule and command as legitimate political phenomena, a legitimation twentieth-century totalitarianism was to drive to its horrific, logical extreme.

As I understand her work, Arendt’s chief objective is to counter the traditional assumption that politics equates with violence by effecting a radical revaluation of political life as a whole. At the heart of this endeavour lies the idea of law. Just as philosophers have misconceived the basis of political life, so too have they misunderstood law. Indeed, the ‘traditional concept of law’, Arendt argues, reflects and reinforces the assumption that collective action is a matter of ruling and being ruled because it understands law in terms of commandment and of obedience.3 Under this conceptualisation, law becomes assimilated to coercion, and coercion in turn becomes the basis of all politics. More problematic still, law is seen as requiring for its authority an absolute, a sovereign, whose will is deemed unquestionable and omnipotent. This is troubling not only because such absolutes threaten to efface the plurality and relativity definitive of the mundane, human world, but also because the appeal to absolutes has historically occasioned extreme cycles of violence. Hence Arendt’s turn to alternative and earlier conceptualisations of law, to the Greek notion of nomos and the Roman idea of lex. As she sees them, the Greek idea of law as setting boundaries and the Roman view of law as establishing relationships differ significantly from law as command and obedience. In returning to them, Arendt therefore hopes, as she does with her account of the bios politikos, the ‘political life’, generally, to sidestep the appeal to absolutes and embrace of violence that have been axiomatic for so much of Western thought and practice.

Here I offer an assessment of Arendt’s retrieval of nomos and lex. It is not my claim that she sought to arrive at a systematic theory of law, nor that her reflections on nomos and lex are fully integrated. Rather, I wish to suggest that when thinking of law in relation to the political, she understood it simultaneously in terms of boundaries and relationships, and that it was this understanding she believed we should endorse if we are to shake off traditional prejudices. I begin by setting out the broader context of Arendt’s reflections on law, focusing on her distinctions between praxis and poiēsis and, relatedly, power and violence, and also on her account of the ‘traditional concept of law’, a concept whose origin is to her mind less political than theological. This leads to a discussion of nomos, the originary act of delineating the internal and external contours of the polity, and of lex, the mutual determination and establishment by citizens and strangers of appropriate modes of being-together. Of particular significance here are Arendt’s account of the American Revolution and her claim that the ‘Founding Fathers’ avoided the aporias that doomed the French Revolution by implicitly rejecting the assumptions underpinning the traditional understanding of law, above all the idea of sovereignty. In her view the foundation of the American republic is of immense significance insofar as it reveals the possibility of constitutional beginnings that do not rely upon violence and command. However, this claim should be treated with scepticism. While much can be said for Arendt’s account of constitutional beginnings and law, there is very good reason to question whether she has in fact freed law from the problems of sovereignty. Viewing her reflections on nomos and lex with a critical eye, it becomes clear that law cannot be purged of the appeal to absolutes, and that the potential for exclusion and therefore violence necessarily remains ever-present.


If philosophers … were ever to arrive at a true political philosophy they would have to make the plurality of man, out of which arises the whole realm of human affairs … the object of their thaumadzein.4

The ‘Great Tradition’ of Western political thought, beginning with the Socratic School and in particular Plato, is for Arendt marked by an ironic wish not to understand the political as such but instead to ‘escape from politics altogether’.5 The mistake underlying this wish is the stress on rulership and, consequently, domination, a stress that continues to inform our understanding of the nature of politics. To Arendt’s mind this entails a fundamental category error since politics has nothing to do, strictly speaking, with domination. As understood by the Greeks, it was the private realm of the oikos or household where domination held sway, the master compelling his slaves to provide the necessities of bare life (zōē). The public realm (ecclesia, agora), by contrast, was the space for freedom, for a genuinely human life (bios) lived through engagement with one’s peers in endeavours of common concern. Action here consisted in praxis, that is, acting and speaking in public, whereby citizens revealed to the world their unique identities, ‘who’ they were. Such speaking presumed an audience, and in doing so presumed plurality, that the citizens comprising the polis were simultaneously equal and yet different, holding irreducibly diverse opinions on public matters. It also presumed the frail ‘web of relationships’ defining the intersubjective aspect of a world held in common, the fact that actors are necessarily interdependent and the freedom of one secured only through the freedom of all.6

Suspicious of the contingency, unreliability and frailty of political life, Plato sought an alternative grounding for politics so as to make it amenable to philosophy and its dictates, and thereby fundamentally altered the meaning of the bios politikos. His major innovation consisted in modelling political action in terms not of praxis but of poiēsis.7 Poiēsis or ‘work’ comprises for Arendt both ‘fabrication’ and ‘art’ in the sense of technē or technical skill. In distinction to praxis, which has no determinate object, poiēsis is typified by an instrumental logic or rationality inhering in the calculation of means to determinate ends. The model applicable here is of the lone craftsman or architect—the philosopher king—moulding and disciplining natural and human material in accordance with pre-given ideas or plans.

From this innovation three regrettable consequences followed. First, because poiēsis entails seizing material and forcing it to accord with a pre-given image or plan, ‘an element of violence is inevitably inherent’ in its operation.8 Violence, which in ordinary Greek experience was pre-political, therefore moved to the heart of political life. This is deeply problematic, Arendt contends, because violence has nothing to do with the real basis of politics, which is power. Power requires ‘the living together of people’ dependent on plurality and vocal interchange; it ‘comes into being only if and when men join themselves together for the purpose of action’.9 Violence, by contrast, is the use of implements by individuals or groups to coerce others into conforming with their ends and desires. Having no connection to speech or plurality as such, it is in fact power’s ‘opposite’, a mode of interacting with the world destructive of genuine solidarity.10 The second, and related, consequence was that the division between masters and subjects in the private household was transported into the public realm as a division between rulers and ruled. With this a despotic authority relation, appropriate only in a sphere of life concerned with necessity, with servicing bodily existence, became legitimate across all realms of human life.11 Thus, in place of a relation of peers defined by equality, there now appeared a hierarchy between those who lead, because they possess the knowledge to ‘mould’ the polity, and those who follow, who obey. The third consequence was an elementary revaluation of the meaning of freedom. Where once freedom was understood to inhere in the ability spontaneously to begin, to initiate, dependent upon speech and thus the presence of others, the Western philosophical tradition gradually came to identify freedom with ‘sovereignty, the ideal of a free will, independent from others and eventually prevailing against them’.12 With this the original experience of the polis was finally lost, so much so that it has become received wisdom to understand politics in terms of ruling over others and its means as necessarily coercive.

Here law, or rather one vision of law, also played a key role. This is because Plato’s transformation of the political was later ‘strangely confirmed and fortified by the addition of the Hebrew-Christian tradition and its “imperative conception of law”’. Gaining ascendancy over all other conceptions, this theologically inspired concept of law stemmed from an ‘almost automatic generalization of God’s “Commandments”, according to which “the simple relation of command and obedience” … sufficed to identify the essence of law’.13 As Arendt sees it, the Hebrew-Christian tradition is important for two basic reasons. First, and most obviously, it enshrines within the heart of law the ruler-ruled relation, taking as self-evident all that that relation entails. Second, it supposes that law requires ‘a transcendent source of authority for its validity … an origin … beyond human power’. Here the idea of poiēsis and its correlates come to the fore, the origin of mundane law being a figure, a Creator God or Immortal Legislator, who in the mode of an architect both fashions the law and yet stands outside, above, that creation. And as with an architect’s creation, the law’s basis is seen to lie in imperatives, ‘sanctions’, that must be obeyed ‘regardless’ of ‘consent or mutual agreements’, since the originator of law is necessarily superior to ordinary human beings and therefore sovereign.14 The ultimate authority of law lies, consequently, in the first mover’s unparalleled strength and irresistible ability to punish transgressions. Thus, law under this conception is intimately connected with, if not identical to, coercion, its wellspring being a creative force and a fabricating violence.

So long as the authority of the Church remained intact, the traditional imperative concept of law remained largely unproblematic. However, once the authority of the Church was supplanted by early modern processes of secularisation, there appeared a pressing need to find alternative sources of authority for the newly-emancipated secular realm and its commanding law. Hence Bodin’s and later Hobbes’s novel claim that the source and legitimation of all earthly power was the sovereign, absolute monarch. To Arendt’s mind this transference of absolute authority from the divine to the mundane realm set in train events that could only conclude in misfortune. For when the authority of the monarch was in turn itself challenged, as in French Revolution, there arose two seemingly irresolvable problems: how to ensure the legality of the new laws heralded by the revolution, which still required an absolute for their validity; and how to secure the legitimacy of the new revolutionary bodies themselves, which, being prior to any constitution, were clearly unconstitutional.15 Sieyès’s famed solution to these perplexities was to separate the new order or ‘constituted power’ (pouvoir constitué) from the sovereign ‘constituent power’ (pouvoir constituant), and to locate this sovereign power in the ‘will of the nation’, which, remaining ‘outside and above all governments and all laws’, therefore became simultaneously the source of all power and law.16 As Arendt sees it, this turn was ruinous because it rested the validity of an imperative law on an entity whose will is fickle, ‘ever-changing by definition’, with the result that the new French order was doomed to instability and continual usurpation.17 Moreover, insofar as the will of the nation was the source of all power and law, the ultimate sanction, it became permissible, indeed a duty, to coerce or even eliminate those who offended against this sanctioning will.18 Thus, oppression and terror became legitimate, normal, political tools. When under totalitarianism ‘Nature’ or ‘History’, governed by ineluctable ‘laws of movement’ discerned by nineteenth-century ideologies, subsequently replaced the nation as the absolute source of law, such terror would cease to be just a tool and transform instead into the very essence of government.19


The common dilemma—either the law is absolutely valid and therefore needs for its legitimacy an immortal, divine legislator, or the law is simply a command with nothing behind it but the state’s monopoly of violence—is a delusion.20

To escape this ‘common dilemma’ generated by the absolutism and violence inherent in the traditional Occidental understanding of lawmaking, Arendt advocates a return to the Greek and Roman conceptions of law. Although ‘very different’ in implication, ‘even contrary’ to one another, these ideas reveal a path out of the quandaries that beset the French Revolution and most political beginnings before and since then.21 They do so, Arendt contends, because neither presumes the need ‘to introduce an absolute, a divine or despotic power, into the political realm’.22 Indeed, for the ancient Greeks and Romans the problem of transcendent sources of authority could not even arise, since they both viewed law as the result of this-worldly action. For both civilisations law was conventional, an ‘artificial’ and ‘man-made’ component of the human condition that, being essentially mundane, required no appeal to divinity or some universal norm beyond the human realm.23 Thus, in the Greek and Roman concepts of law Arendt sees ideas that avoid equating law with sovereign command, and this because they reflect and feed into two primary features of the ‘common world’, for her the basis for all political life.

Nomos lies at the heart of Arendt’s political thought insofar as it corresponds to the first aspect of what she means by ‘world’. This is the world as ‘human artifice’, the things and objects that physically connect and yet separate human beings, thereby providing an objective home or ‘in-between’ for their common life.24 Law as nomos contributes to this artifice in delineating the boundaries and limitations of the polity, the very place where it can be said to be. ‘All laws first create a space in which they are valid’, a tangible range or enclosure where human beings can interact freely, and what lies beyond this ‘is without law and, even more precisely, without [a] world’.25 To the Greek mind, law consisted of ‘hedges’, ‘walls’ or ‘boundaries [that] men establish between themselves or between city and city’.26 The law, in other words, determines the internal and external topography of the polity, on the one hand internally demarcating the private from the public realm, the boundaries between citizens themselves, and on the other hand externally delineating the contours of the polity, separating it off from foreign spaces and cities. Nomos in this sense has two interwoven ‘dimensions’: a ‘physical’ aspect, the compartmentalisation of inner and outer territory, and a ‘normative’ aspect, the determination of a specific community with a unique identity defined by particular interests.27 Indeed, Arendt writes that law actually creates the political community as a ‘unity’ as such by first determining ‘the character of its inhabitants, setting them apart and making them distinguishable from the inhabitants of all other cities’.28 Nomos is therefore ‘constitutive’ for all political action insofar as it is nomos that brings the space for such action into being and thereby ‘sires’ the citizen.29 This is why the Greeks understood lawmaking as ‘pre-political’, a task engaged in prior to the existence of the polis and in like manner to the erection of a city’s physical walls.30 Viewing lawmaking as lying at the beginning of all polities, but having nothing to do with political activity or life per se, the Greeks therefore deemed it acceptable to task non-citizens and strangers with the foundation of the polis. But whilst this task may not have been the concern of the citizen, it nonetheless had enormous significance. For it was nomos, with its stabilising walls and boundaries, that gave the political realm durability and permanence, ensuring that men’s words and deeds would not be forgotten, and also that the community itself would survive the ‘onslaught’ of new generations and unforeseeable events. Hence the Greek belief that violating the law represented the greatest vice, an act of supreme hubris, since in breaching the law transgressors imperilled the identity and survival of the community as a whole.31

In discussing nomos Arendt is not simply reporting the Greek view of law, but also affirming it as a concept. To appreciate law properly is to register its primordial spatial and limiting quality, a quality wholly expunged by totalitarianism’s perverse identification of law with ineluctable and limitless movement.32 Only within a stable polity and determinate place, hemmed in and guaranteed by laws that protect the citizenry from themselves and outsiders, can freedom be realised. Yet the idea of law as nomos is not without difficulty. Along with their fractious agonal spirit, it was the Greeks’ exclusive understanding of law as a boundary or wall which separates, rather than bridges, distinct spaces and peoples that prevented them from joining city with city and establishing a cohesive Hellas. As Arendt sees it, politics for the Greeks could consequently exist only within the polis; outside the polity’s walls, in interactions with different cities and communities, the logic of rivalry, subterfuge and violence necessarily reigned unchecked.33

The Greek inability to envision the possibility of an external politics prompts Arendt’s turn to the Roman notion of lex. For her the undoubted ‘political genius of Rome’ stemmed precisely from its understanding of law as a bridge or bond.34 Lex occupies a similarly significant position within Arendt’s thought as nomos because lex coincides with the second elemental aspect of ‘world’. This is the ‘world’ understood as an intersubjective ‘in-between’ that ‘overlays’ and complements the objective human artifice. It consists of the ‘web of human relationships’ engendered by the intersection of ‘innumerable’ perspectives through speech and action.35 Because innately relational, lex contributes to and sustains this web, thus permitting a politics not only between citizens but also between strangers. In essence, law as lex denotes an ‘“intimate connection” or relationship’ that ‘connects two things or two partners whom external circumstances have brought together’. This intimate connection takes the form of ‘“lasting ties” or “contracts”’ that come ‘into being not by diktat or by an act of force but rather through mutual agreements’.36 In sharp distinction to nomos, which is ‘conceived by a lawgiver’ prior to the birth of the polity, lex presumes and emerges from a ‘back-and-forth exchange of words and action’.37