Power and the Rule of Law in Arendt’s Thought
SINCE THE REVOLUTIONARY changes to the global order at the threshold of the 1990s, we have been able to observe a growing academic and political discussion on global constitutionalism, global fundamental laws, global statehood and global democracy. The public discourse on the constitution of the international community reaches back to the constitutional moment when the United Nations (UN) Charter was signed in San Francisco on 26 June 1945 by the representatives of the first 50 Member States.1 The first three words of the Charter underline the revolutionary claim of that document: ‘We the Peoples of the United Nations …’ The text of the Charter describes itself as a Constitution of the international community that establishes a new global order of power and law. The Charter is designed as a revolutionary or power-founding Constitution which stipulates a global legal order that is no longer international but for the first time in history supranational (Articles 1, 2, 39 and especially 103 UN).
The idea of a revolutionary Constitution that establishes a new political and legal order of powers guided the authors of the UN Charter, and it is that idea that stands at the centre of Hannah Arendt’s political theory. Arendt’s theory is on power. What distinguishes all kinds of power (as potentia) from violence is—as it is written in the Declaration of Independence from 1776—the ‘consent of the governed’. The consent of the governed is the basis for Arendt’s main thesis on the binding force of power, and the fundamental relation between power and all political institutions: ‘All political institutions are manifestations and materializations of power; they petrify and decay as soon as the living power of the people ceases to uphold them.’2 The living power of the people is not organised coercive power but emerges spontaneously through conflicting public opinions. Therefore it needs deviant behaviour, negations, confrontations, disagreement—in short, the force of new ideas which Arendt calls natality. This is the Hegelian power of the negative. Even if Arendt loves to quote Burke’s formulation of acting in concert—what she means is acting in concert and conflict.
Theories of power may be differentiated within two dimensions: first, repressive versus constitutive power; and, secondly, action versus system points of view.3 If we combine these two pairs of distinctions within a simple cross-table then all major theories of societal power fit into one of its four boxes:
— Actor-oriented repressive power is the Hobbesian or Weberian power to impose binding decisions on others (box 1).
— Actor-oriented constitutive power is the Arendtian-Habermasian power of public communication that constitutes in its performance a group of people as a political actor (box 2).
— Structurally repressive power is bureaucratically-organised power of public or private organisations. Structurally repressive power is also effective in ideologies (Marx) or systematically disturbed communications (Habermas). Structurally repressive power is used to impose binding decisions without the immediate threat of violence of physical coercion (box 3).
— Structurally constitutive power is the institutions’ founding power that is then embodied in these institutions as their productive power (Sieyès, Madison, Jefferson, Foucault). In its pure form it is binding because it is backed by the consent of the governed only (box 4).
The normative core of Arendt’s theory of power is the idea of empowerment of the people by acting in concert and conflict (Table 2: box 2); but as we shall see, her concept of power is much richer and also implies an important notion of structurally repressive power as well as of founding power that is productive. Her paradigmatic case of structural repression is the social or anti-political organisational or administrative powers of imperialism and totalitarianism (Table 2: box 3), and her paradigm of a founding power that is productive is the institutionalisation of a permanent revolution by a revolutionary constitution (Table 2: box 4).
Table 1: Dimen sions of societal power4
1 Instrumental power
3 Administrative power
2 Communicative power
4 Institutionally-embodied founding power
1 Violence (On Violence)
3 Imperial/totalitarian power (Origins of Totalitarianism)
2 Communicative power (Human Condition)
4 Constitutional power (On Revolution)
The notion of ‘violence’ and the differentiation between power and violence is categorically infelicitous, and even mistaken. There is no power without the backing of violence that remains latent during powerful actions. Otherwise the talk about power does not make any sense. In the same way as tanks and police forces are the ‘symbiotic’ (Luhmann) backing of administrative power, the potential of the ‘barricade’ or the ‘violence of revenge’ (rächende Gewalt) is the backing of communicative power.5 Implicitly Arendt knew that very well, because she again and again insists that ‘action’ and ‘power’ are the most dangerous ways man relates to himself (see below section V.).
Arendt describes the modern society in sociological categories as a rational capitalist market society which is structurally differentiated from the public sphere (res publica).6 The most powerful driving forces of the modern society are economic capital and social power. If the powers which are emerging from social systems appear in the public sphere, they will become negative political or anti-political powers (Table 2, box 3). On Arendt’s account, capital accumulation and power accumulation are both structural social processes that reinforce each other: ‘[A] society which had entered the path of never-ending acquisition’—in the German edition Arendt uses the Marxian term, Kapitalakumulation—‘had to engineer a dynamic political organization capable of a corresponding and never-ending process of power generation (in German: Machtakkumulation).’7 Both are based on a highly abstract, reflexive mechanism that she calls ‘expansion for expansion’s sake’ or ‘power for power’s sake’.8
Together with the differentiation (Weber) and des-embedment (Polany) of the modern society from the political consent of citizens, capital and power became mere social forces which find and have to find all their ends in themselves. At first imperialism and later totalitarianism made obvious the developmental logic of the reflexive social power of modern organisations. ‘Power,’ Arendt writes at a key point in her book on totalitarianism, ‘appears as a dematerialized mechanism which with its every move produces more power’ and this mechanism causes an ‘automatic accumulation’ of ‘total organizational power’.9
For Arendt the ‘dematerialized mechanism’ of reflexive power accumulation is a structural or systemic mechanism. It is one of the very origins of totalitarianism which, for the first time in history, was invented during the imperial rule of Europe over most of the rest of the world. Whereas only a systemic mechanism that works without or independent from the consent of the governed can explain the tremendous growth and technical improvement of power within the modern society, only a specific ideological consent that is reinforced by organised administrative terrorism can explain the—up to then—inconceivable repression, destruction and extermination, and in particular the self-radicalisation10 and unprecedented self-destruction11 conducted by totalitarian regimes. This is where Arendt draws the distinction between imperial and totalitarian power. Imperialism presupposes the preservation of a stable difference between rule of law in the homelands and ‘un-rule of law’12 abroad—in the ‘heart of darkness’.13 What imperialism erected during the nineteenth century was a global double state: normative state (Normstaat) at home, ‘prerogative’ state (Massnahmestaat) abroad.14
Arendt’s concept of structurally repressive power, and in particular her distinction between imperial and totalitarian rule, fits nicely to the development of modern international law during the long period that lasted from the Treaty of Tordesillas 1494 until the unconditional surrender of the Nazi Regime and Japan in 1945. The Treaty that Spain and Portugal signed on 7 June 1494 divided the non-European world, and in particular the Americas, into two enormous spheres of occupation, expropriation and expansion; both legally excluded from the protection of the public European law of nations. The Jus Publicum Europaeum was valid for all the European Nation States, and based on the equal rights of these States to wage war (ius ad bellum), conduct treaties and coalitions, and declare neutrality, and it obliged all European States or kingdoms to obey the basic rules of the ius in bellum.15 This was in some respect progress, because not only was war now legalised (as it had been much earlier in canon law of the twelfth and thirteenth centuries) but it was based on a clear distinction between law and morality. The legalisation and (not at all non-ambivalent) de-moralisation of international relations went hand in hand with European State-building.
Yet the ‘darker side’ of the new State-centered Jus Publicum Europaeum that accompanied its history, like a shadow,16 was the transformation of the rest of the world into the potential and actual private property of European princes, and later European and American constitutional or democratic regimes, and even private or private–public companies (like the East India Companies in The Netherlands and England). During the whole period between 1494 and 1945, the basic discrimination that constituted international law never altered, and that was the discrimination between European State equality (later including America and Japan) and the global imperialism that was aimed at those from ‘the other heading’.17 International lawyers functioned as ‘sorry comforters’—Kant’s leidige Tröster—who were most creative in justifying the ideological discrimination that constituted international law, and who fuelled it again and again with new legal concepts.18 In Europe, for example, King Leopold is bound to public international law, but the ‘heart of darkness’ is declared to be his private property, and the Berlin conference about the future of Africa (1884–85) offered colonised peoples authority instead of jurisdiction, private prerogative law instead of public law equity, prerogative measures instead of law.19
From its very beginning, the progress of European public law was at the price of the anarchic spread and enlargement of structural repressive power in America, Asia, India, Africa and the Near East. But imperial and totalitarian power was excluded from the European borders until the twentieth century. The Nation State realised to some degree the exclusion of inequalities, and via crisis, social fights and radical reform transformed the ideology of equality into real-life effects. The horror of totalitarian rule was externalised to the ‘heart of darkness’, and this was one of the great and deeply ambivalent advances of the modern European Nation State which more or less quickly became a democratic Rechtsstaat.
Arendt has emphasised this advance strongly, in articles from the 1940s and in the first parts of Origins:
Until now the greatest bulwark against the unlimited domination of bourgeois society, against the conquest of power through the mob and the introduction of imperialistic politics in the structure of Western states has been the nation-state. Its sovereignty, which once was supposed to express the sovereignty of the people, is now threatened from all sides.20
What happened during the first half of the twentieth century in Europe was, just as Arendt has analysed it in her book, the internalisation of imperialism to the world of the European States. Externalised imperialism became internalised totalitarianism—with the immediate consequence of a total destruction of the Jus Publicum Europaeum, the decay of the legal principle of equal sovereignty in the middle of Europe, and its replacement by imperial rule and imperial theories of the Großraum.21 Whereas imperialism combines the European Normstaat (state of law) with the non-European Maßnahmestaat (‘prerogative’ state), totalitarianism brings the anti-state back to the European homelands. The externalised difference of Norm- and Maßnahmestaat is re-internalised during the 1920s, 1930s and 1940s.22
Yet the picture Arendt draws of the sovereign European State is a little too rosy. Arendt here follows far too narrow an idea of structural power, more or less reduced to imperialism/totalitarianism (Table 2: box 3). The modern State, which Arendt impressively describes as a ‘bulwark’ against the ‘unlimited domination’ of economic powers and political imperialism, could be such a bulwark only because it was the most important and mightiest producer and carrier of just the same reflexive power