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Book Reviews
What is Politics? is an omnipresent question in Hannah Arendts workone 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 writingsher thoughts on Eichmann and the aporias of human rights in Origins of Totalitarianism are very well known examplesshe 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 Arendts political thoughts. To unfold Arendts 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 Breens art icle Law beyond command? dwells on this distinction and poses the question whether Arendts shift from nomos to lex has in fact freed law from the problems of sovereignty (p.16). Breen acknowledges Arendts attempt to conceive law simultaneously in terms of boundaries and relationships and to free ICON (2013), Vol. 11 No. 1, 261280
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 Breens assumption that any law needs to be based on command as well as obedience. The punch line of Arendts 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
See Christian Volk, From Nomos to Lex. Hannah
Arendt on Law, Politics and Order, 23 Leiden J.Intl L.759, 775 et seq. (2010)
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Marco Goldoni and Christopher
McCorkindale (eds). Hannah Arendt and the Law. Hart Publishing, 2012. 382 pages. 55. ISBN: 9781849461436.
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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 Arendts Thought] 268279 (2010). 2
law (the written constitution) (p. 119) is a
suitable theoretical startingpoint. 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 Arendts Constitutional Question, William Smiths reflections on the Arendtian reading of civil disobedience, and Kari Palonens account of Arendts 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 Arendts 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 Arendts legal-political thoughts. In contrast to Andrew Aratos and Jean Cohens 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 Courts 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 changefor, otherwise, from Arendts 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 interpreteven where interpretation brings before the judiciary questions of war and peace (p.131).
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However, there is a third concept of law in
Arendts workrapportwhich 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 Arendts 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 Arendts 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 Arendts attempt to design a post-sovereign theory of law and politics can also be detected in her constitutional thinking. To reconstruct this thinking, Arendts distinction between the seat of authority (Supreme Court), the locus of power (people), and the source of
Book Reviews
rates that Arendts 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). Bessons article is compelling with respect to its argumentative coherence and inspiring in systematic terms. Drawing on Arendts 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 Arendts thinking about law and constitutionality should not simply be regarded as another step to live up to the multilayeredness of Arendts 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 Arendts revolutionary universalism,5 in which no extrapolitical normative foundation secures or justifies6 political action. If one examines Arendts 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 politicalorder. To be clear, authors like Albrecht Wellmer were not completely wrong. One has to interpret Arendts 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
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The third part of the volume is concerned
with the relevance of Arendts 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 Arendts work is due to her unexpected connections and the unorthodox ways in which she defined concepts or shed unfamiliar light on familiar issueseven 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 Klabberss 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 Klabberss analysis is related to or inspired by the work of Hannah Arendt. The linkage between Arendts 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 Arendts thoughts, while James Bohman, by introducing personhood as a legal status, seeks to go beyond Arendts right to have rights. Seen from the perspective of Samantha Besson, however, Bohmans endeavor to go beyond Arendts right to have rights can neither be easily accomplished nor is it advisable to do so. In Bessons eyes, the developments of European and international human rights law and practice have proved her right (p.354). If there is one idea in Arendts work that cannot be regarded as obsolete, it is Arendts right to have rights. Besson elabo-
263
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ICON 11 (2013), 261280
See Hannah Arendt, Elemente und Ursprnge
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 TraditionUnzeitgemsse Aktualitt? [Hidden TraditionUntimely Actuality?] 311, 312 (Heinrich-Bll-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. Grundzge 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 Arendts thinking. For the interpretation of Arendts work in present times, the ability to begin has not lost its validity, but the horizon of the present11 has become a broader one. Apart from the Arab revolutions and the protest in western democracies against financial capitalism and austerity politics, Guantnamo, 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 suspects 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 Arendts thought at the start of the 21st century. The confidence that Arendts 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 Gnther Anders that her American passport was the most beautiful book13 she owned. In this manner the question of a stable, permanent, and free order became the very question at the heart of Hannah Arendts political thinkingand, among others, it is Id. at 289. Hannah Arendt, Origins of Totalitarianism (1994), 296. 13 Alte Synagoge. Hannah Arendt. Lebensgeschichte einer Deutschen Jdin 46 (1997). 11 12
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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 Arendts trust in the unconditional aspect of a new beginning and her recourse to Augustinuss 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 factor9 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 horizons10 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, Arendts
Book Reviews
ChristianVolk Jun.-Professor for Political Theory at Trier University Email: volkch@uni-trier.de
thanks to Marco Goldonis and Christopher
McCorkindales volume that this perspective is brought back into the academic debate.
Individual Contributions
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 timeone 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
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Marco Goldoni and Chris McCorkindale, Introduction;
Keith Breen, Law beyond Command? An Evaluation of Arendts 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 Arendts Thought; Vivian Liska, A Lawless Legacy: Hannah Arendt and Giorgio Agamben; Emilios Christodoulidis and Andrew Schaap, Arendts Constitutional Question; Marco Goldoni and Chris McCorkindale, The Role of the Supreme Court in Arendts 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 Arendts 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 Arendts 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.