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Book Reviews
Marco Goldoni and Christopher
McCorkindale (eds). Hannah Arendt
and the Law. Hart Publishing, 2012.
382 pages. £55. ISBN: 9781849461436.
“What is Politics?” is an omnipresent question in Hannah Arendt’s work—one which
is broadly explored in countless publications.
“What is law?,” in contrast, is a question
which has not been of much interest within
Arendt scholarship to date. There are several
reasons for this. Although Arendt addresses
questions of law and constitution throughout
her writings—her thoughts on Eichmann and
the aporias of human rights in Origins of Totalitarianism are very well known examples—she
does so in an episodic and sporadic, and less
systematic manner. As in none of her writings
questions concerning the concept of law are
explicitly addressed, they need to be carefully
reconstructed.
A new volume, edited by Marco Goldoni
and Christopher McCorkindale, takes on this
challenge and brings together new contributions (and some reprints) on Hannah Arendt
and the law. The volume is divided into four
sections.
The first part, “Between nomos and lex,” is
of legal-philosophical provenance and scrutinizes the concept of law in Hannah Arendt’s
political thoughts. To unfold Arendt’s legalphilosophical thinking, the difference between
lex and nomos is crucial: while the Greek nomos
expresses the idea of demarcation, the Roman
lex stands for relationship. Keith Breen’s art­
icle “Law beyond command?” dwells on this
distinction and poses the question whether
Arendt’s shift from nomos to lex has “in fact
freed law from the problems of sovereignty”
(p. 16). Breen acknowledges Arendt’s attempt
to conceive law “simultaneously in terms of
boundaries and relationships” and to free
I•CON (2013), Vol. 11 No. 1, 261–280
­ olitics and law from the shackles of rulership
p
and coercion. However, in his eyes, Arendt
ultimately fails. Although Breen agrees with
Arendt that neither politics nor law can be
reduced to relations of command and obedi­
ence, he claims that both, politics and law,
cannot be completely divorced from these
relations. Breen forcefully argues that “to
the extent that she does try to divorce them,
Arendt shies away from driving home the
unsettling implications of both nomos and lex,
misrepresents the course of historical events
and hides realities that ought to, indeed must,
be acknowledged” (p. 32).
While I agree with Breen that Arendt
gives us too little detail about how her
understanding of law could be grounded in
legal theory, we do not necessarily have to
follow Breen’s assumption that any law needs
to be based on command as well as obedience.
The punch line of Arendt’s political-theoretical
consideration is to argue that obedience is
a term that we should ban from our political
vocabulary. For her, the breakdown of public
authority in the moment of revolution
stresses the fact that, in the end, the alleged
obedience to the law mainly depends on public
opinion and general consent. This brings her
to the conclusion that law should not be seen
as an expression of command or as the legal
will of the sovereign but rather as describing,
revealing, and arranging the relations among
people within a political community. That is
the reason why she compares law to the rules
of a game which establish relations between
people. Against this background, laws are the
legally formalized expression of agreements—
or at least of tacit consent.1
1
See Christian Volk, From Nomos to Lex. Hannah
Arendt on Law, Politics and Order, 23 Leiden J. Int’l
L. 759, 775 et seq. (2010)
262
I•CON 11 (2013), 261–280
However, there is a third concept of law in
Arendt’s work—rapport—which seeks to combine the defensive function of nomos with the
enabling dimension of lex and which Breen
overlooks or overrides. Law as rapport can
be traced back to Montesquieu. For Arendt’s
Montesquieu, rapport means “the relation
subsisting between different entities.” This
lays the ground for a concept of law which is
“relative by definition.”2 In Arendt’s interpretation, Montesquieu came to this conclusion
because he differentiated between philosophical and political freedom. While the first is
based on the individual “I will,” the second
refers to an “I can,” that is, to something like
being empowered by others. Only where people are reciprocally empowered to act can one
speak of political freedom. To be reciprocally
empowered to act means to regard each other
as political persons. According to Arendt the
word person, persona, originates from the language of the theatre and denotes the mask of
the actor. As such it always had two functions.
On the one hand, the mask had to hide the
natural face of the actor or rather replace it,
but on the other hand, it had to be designed
in such a way that the natural voice could
be heard.3 The status that subjects mutually
guarantee to each other thus enables participation and protection simultaneously. On the
one hand, it shields the area of subjectivity,
possession, cultural origin, private preferences, etc. On the other hand, and by means
of the mask, this status enables one to speak
as an equal to other equals.4
Arendt’s attempt to design a post-sovereign
theory of law and politics can also be detected
in her constitutional thinking. To reconstruct
this thinking, Arendt’s distinction between
the “seat of authority” (Supreme Court), “the
locus of power” (people), and “the source of
Hannah Arendt, The Promise of Politics 183
(2007).
3
Hannah Arendt, On Revolution 97 et seq. (2006).
4
Christian Volk, Die Ordnung der Freiheit. Recht
und Politik im Denken Hannah Arendts [The
Order of Freedom. Law and Politics in Hannah
Arendt’s Thought] 268–279 (2010).
2
law” (the written constitution)” (p. 119) is a
suitable theoretical starting point.
Important steps and central elements of
such a post-sovereign constitution are being
debated in Part II of the volume, entitled
“On Constitutionalism and Institutions.”
This part brings together Christodoulidis
and Schaap on “Arendt’s Constitutional
Question,” William Smith’s reflections on
the Arendtian reading of civil disobedience,
and Kari Palonen’s account of Arendt’s critique of West German parliamentarianism.
Furthermore, in an illuminating contribution, Goldoni and McCorkindale assemble
the scattered bits and pieces Arendt wrote
about the role of the US Supreme Court and
the function of judicial review and connect
these remarks to her political thoughts.
They start with Arendt’s characterization of
the Supreme Court as “the seat of authority, and neither the locus of power (people)
nor the source of law (the written constitution)” (p. 119). This observation results in a
nuanced and sophisticated position between
two other prominent readings of Arendt’s
legal-political thoughts. In contrast to
Andrew Arato’s and Jean Cohen’s account,
Goldoni and McCorkindale show that Arendt
does not argue in favor of a “constitution
of judges.” However, neither do they follow
Jan Klabbers who argues that Arendt limits
juridical review to simply “testing whether
legislation and administrative action had . . .
come about in the right manner” (p. 118).
For Arendt, so Goldoni/McCorkindale, the
Supreme Court’s role is restricted to one of
constitutional interpretation, “yet no less
significant for that” (p. 130). They refer
to “Little Rock,” where the court could
only interpret and not go further and engineer social change—for, otherwise, from
Arendt’s perspective, it would no longer act
intra vires. They also note, however, that in
“Civil Disobedience,” where Arendt criticizes
the political question doctrine and defends
extra-legal political protest, “we see that
whilst the Court may only interpret, it must
interpret—even where interpretation brings
before the judiciary questions of war and
peace” (p. 131).
Book Reviews
The third part of the volume is concerned
with the relevance of Arendt’s thoughts
for questions about international law and
politics beyond the nation-state. Jan Klabbers
is clear in his answer that, for him, “Arendt is
best seen not so much as a fount of wisdom,
but rather as a source of inspiration.” For
Klabbers, the inspirational value of Arendt’s
work is due to her “unexpected connections”
and the “unorthodox ways in which she
defined concepts” or “shed unfamiliar light
on familiar issues—even if it sometimes
ended up generating more heat than light”
(p. 229). It is very likely, as says Klabbers,
that Arendt can offer useful insights about
the language and concepts used in discussing
and analyzing global governance. With
an Arendtian mindset, Klabbers addresses
first and foremost the human rights talk in
global governance. What he criticizes is the
managerial jargon in global governance,
“with politics being replaced by governance in
the form of technocracy, exercised by faceless
bureaucrats” (p. 246). From Klabbers’s point
of view, Arendt would be anxious about such
developments because they may lead to the
erosion of trust into the political process.
While the chapter is instructive with respect to
the dangers of global governance, it remains
unclear how Klabbers’s analysis is related to
or inspired by the work of Hannah Arendt.
The linkage between Arendt’s thoughts and
the conceptual and cognitive political frames
underlying Klabbers analysis remains unclear.
“The right to have rights” is debated in
the last part of this volume. Charles Barbour examines the diverse subjects of rights
in Arendt’s thoughts, while James Bohman,
by introducing personhood as a legal status,
seeks to go beyond Arendt’s right to have
rights. Seen from the perspective of Samantha Besson, however, Bohman’s endeavor “to
go beyond Arendt’s right to have rights” can
neither be easily accomplished nor is it advisable to do so. In Besson’s eyes, the “developments of European and international human
rights law and practice have proved her right”
(p. 354). If there is one idea in Arendt’s work
that cannot be regarded as obsolete, it is
Arendt’s “right to have rights.” Besson elabo-
263
rates that Arendt’s phrase touches upon three
questions that are still at the core of contemporary debates in human rights theory: first,
“the rights-nature of human rights”; second,
the “relationship between moral and legal
human rights; and third, “the relationship
between international and domestic human
rights guarantees” (p. 354). With these three
interrogations, Arendt was a “precursor in
proposing a resolutely modern conception of
human rights that situates them in the constant tension between the universal and the
particular, between politics and morality, and
at the intersection of various levels of political integration” (p. 354). Besson’s article is
compelling with respect to its argumentative
coherence and inspiring in systematic terms.
Drawing on Arendt’s republican intuition,
Besson argues that human rights are “inherently moral and legal: the law cannot create
universal moral rights but it can recognize
or even modulate them, and turn them into
human rights stricto sensu.”
To elaborate on Arendt’s thinking about
law and constitutionality should not simply be regarded as another step to live up to
the multilayeredness of Arendt’s work but
rather marks a shift in interpreting this work:
For decades and only with some exceptions,
Arendt has been considered as a thinker
of revolutionary beginning. Accordingly,
Albrecht Wellmer stresses Arendt’s “revolutionary universalism,”5 in which “no extrapolitical normative foundation secures or
justifies”6 political action. If one examines
Arendt’s work purely from the perspective of
contingency and revolutionary beginnings, it
might not be apparent how one can associate
her thinking with questions on law, constitutionalism, and the preconditions of a stable
and durable political order.
To be clear, authors like Albrecht Wellmer
were not completely wrong. One has to
interpret Arendt’s thinking also as a way of
thinking the beginning. Anyone who has
Albrecht Wellmer, Arendt on Revolution, in The
Cambridge Companion to Hannah Arendt 220, 224
(R. Dana Villa ed., 2005).
6
Id. at 229.
5
264
I•CON 11 (2013), 261–280
worked his way through the story of terror
and annihilation in the 500 pages of Origins
of Totalitarianism (1000 pages in the German
version of the book) will have read with some
surprise and emotion of Arendt’s trust in the
unconditional aspect of a “new beginning”
and her recourse to Augustinus’s initium ut
esset, creates est homo.7 If one sees Arendt as
a “thinker of beginnings,”8 and recognizes
the core of her political beliefs in this ability
to begin, questions about a specific Arendtian
constitutionalism in general and law as the
“stabilizing factor”9 of a political order in
particular are of secondary importance.
If we bear in mind that the emphasis on
Arendt as a theoretician of beginnings coincided with the collapse of the Soviet Union
and the rise of Eastern European freedom
movements, then the importance of what
Gadamer calls the “fusion of horizons”10 in
the interpretation of texts becomes tang­
ible. The revolutions in Eastern Europe were
political new beginnings that no intellectuals, philosophers, scholars, or intellectual
and academic schools have even expected or
envisaged; no political philosopher and no
political theory of that time could even think
of it. In the academic debates about system
theory and questions of justice, there was no
room for theorizing revolutionary and political new beginnings. In contrast, Arendt’s
See Hannah Arendt, Elemente und Ursprünge
totaler Herrschaft. Antisemitismus, Imperialismus,
totale Herrschaft [Elements and Origins of Total
Domination. Antisemitism, Imperialism, Total
Domination] 979 (2003), 979.
8
Micha
Brumlik,
Zwischen
Polis
und
Weltgesellschaft. Hannah Arendt in unserer
Gegenwart [Between Polis and World Society.
Hannah Arendt in the present], in Hannah
Arendt: Verborgene Tradition—Unzeitgemässe
Aktualität?
[Hidden
Tradition—Untimely
Actuality?] 311, 312 (Heinrich-Böll-Stiftung
ed., 2007).
9
Hannah Arendt, Civil Disobedience, in Crisis of the
Republic (Hannah Arendt ed., 1972), 49, 79.
10
Hans-Georg Gadamer, Wahrheit und Methode.
Grundzüge einer Philosophischen Hermeneutik
[Truth and Method: Fundamentals of a
Philosophical Hermeneutic] 290 (1975).
7
work offered the opportunity to understand
and conceptualize the unforeseeable collapse. That is one reason why revolutions and
revolutionary beginnings became and were
seen as the key paradigm of Arendt’s thinking.
For the interpretation of Arendt’s work in
present times, the ability to begin has not lost
its validity, but the “horizon of the present”11
has become a broader one. Apart from the
Arab revolutions and the protest in western
democracies against financial capitalism and
austerity politics, Guantánamo, Damascus,
Melilla, or the Sonoran Desert are in the focus
of attention: the tightening of security regulations in western democracies during the
global fight against terrorism can even lead to
the suspension of a suspect’s legal rights; the
political inertia of the so-called international
community when confronted by crimes of
massive dimensions; and the everyday tragedies at the borders to the US or to the “fortress
Europe” are the backdrop against which we
pose questions to Hannah Arendt’s thought at
the start of the 21st century.
The confidence that Arendt’s work could
serve “as a source of inspiration” (Klabbers)
results from the knowledge that her political
thinking stems from the confrontation with
such questions. Her theory of lawlessness
as the first step in a long preparation process
towards the annihilation of people was
experienced reality for Arendt and shaped her
own horizon.12 With the Reichsbuergergesetz
(citizenship laws of Nazi Germany) in 1935
and Nuremberg Laws in 1937, she lost her
German nationality and was to remain
stateless until 1951. She once wrote to
Günther Anders that her American passport
was the “most beautiful book”13 she owned.
In this manner the question of a stable,
permanent, and free order became the very
question at the heart of Hannah Arendt’s
political thinking—and, among others, it is
Id. at 289.
Hannah Arendt, Origins of Totalitarianism
(1994), 296.
13
Alte Synagoge. Hannah Arendt. Lebensgeschichte
einer Deutschen Jüdin 46 (1997).
11
12
Book Reviews
Christian Volk
Jun.-Professor for Political Theory
at Trier University
Email: [email protected]
thanks to Marco Goldoni’s and Christopher
McCorkindale’s volume that this perspective is
brought back into the academic debate.
Individual Contributions
Marco Goldoni and Chris McCorkindale, Introduction;
Keith Breen, Law beyond Command? An
Evaluation of Arendt’s Understanding of Law;
Michael A Wilkinson, Between Freedom and
Law: Hannah Arendt on the Promise of Modern
Revolution and the Burden of “The Tradition”;
Johan van der Walt, Law and the Space of
Appearance in Arendt’s Thought;
Vivian Liska, A Lawless Legacy: Hannah
Arendt and Giorgio Agamben;
Emilios Christodoulidis and Andrew Schaap,
Arendt’s Constitutional Question;
Marco Goldoni and Chris McCorkindale, The
Role of the Supreme Court in Arendt’s Political Constitution;
William Smith, A Constitutional Niche for
Civil Disobedience? Reflections on Arendt;
Kari Palonen, The Search for a New Beginning: Hannah Arendt and Karl Jaspers as Critics of West German Parliamentarism;
Florian Hoffmann, Facing the Abyss: International Law Before the Political;
Seyla Benhabib, International Law and
Human Plurality in the Shadow of Totalitarianism: Hannah Arendt and Raphael Lemkin;
Hauke Brunkhorst, Power and the Rule of
Law in Arendt’s Thought;
Jan Klabbers, Hannah Arendt and the Languages of Global Governance;
Patricia Owens, “How Dangerous it Can
Be to Be Innocent”: War and the Law in the
Thought of Hannah Arendt;
Leora Bilsky, Hannah Arendt’s Judgement
of Bureaucracy;
Lawrence Douglas, Arendt in Jerusalem,
Demjanjuk in Munich;
Charles Barbour, Between Politics and Law:
Hannah Arendt and the Subject of Rights;
James Bohman, Citizens and Persons: Legal
Status and Human Rights in Hannah Arendt;
Samantha Besson, The Right to Have Rights:
From Human Rights to Citizens’ Rights and
Back.
265
doi:10.1093/icon/mos061
C. Raj Kumar. Corruption and Human
Rights in India. Comparative
Perspectives on Transparency and
Good Governance. Oxford University
Press, 2011. 234 pages. £22.50. ISBN:
9780198077329.
The 2G spectrum scandal in India that broke
in April 2011 made headlines around the
world.1 A Times magazine special in spring
that year placed the affair second on a list of
the top ten abuses of power of all time—one
place behind Nixon and Watergate and two
places above the rampant nepotism of Colonel Gadaffi.2 India has continued to make
the news in relation to corruption throughout 2012, with reports focusing on the fight
back against graft at the grassroots level, via
the movements fronted by Anna Hazare;3 at
The scandal concerns Indian politicians and
officials dramatically undercharging telecoms
companies for 2G licenses used for mobile phone
subscriptions. On February 2, 2012, the Indian
Supreme Court ruled that the process of license
issuing was unconstitutional and invalidated all
122 licenses issued since 2008, under the tenure of the Minister for Communications and IT,
A. Raja, who is the main politician implicated in
the scandal.
2
Times Special: Top 10 Abuses of Power, Times
Magazine, May 17, 2011, http://www.
t i m e. c o m / t i m e / s p e c i a l s / p a c k age s / c o m pletelist/0,29569,2071839,00.html.
3
Anna Hazare is a well-known Indian social
activist, who went on a hunger strike in April
2011 to protest against endemic corruption
and to pressure the Indian government to enact
a new anti-corruption law: the Lokpal Bill. His
actions were supported by nation-wide protests
and have stimulated a national anti-corruption
movement.
1