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Possible Islands of Predictability: The Legal Thought of Hannah Arendt
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Jan Klabbers1
I
Political theorists do not often comment on current affairs, let alone current legal affairs: one
would be hard pressed to find a leading political theorist reviewing, say, the US Supreme Court’s
Guantanamo opinion, or the trial against Saddam Hussein. 2 Hannah Arendt was different though.
Some of her most well-known (some might say infamous) works were commentaries on current
affairs3, both domestic and international, and some of these were explicit commentaries on
important legal proceedings. The unauthorized publication of the Pentagon Papers, e.g.,
discussing the role of the US military in Vietnam, provoked a lengthy comment from her pen
about lying in politics 4; she managed to offend a lot of people by her analysis of the follow-up to
one of the US Supreme Court’s desegregation orders relating to schools in the southern US5; she
devoted an entire book to the Eichmann trial, and even suggested that the trial of Socrates
formed a pivotal turning point in the history of political thought, marking, as it does, the
separation between philosophy and politics.6
In particular her attention for legal proceedings suggests that Arendt, unlike most
political theorists, was well aware of the intimate and reciprocal relationships between law and
politics. Where political theorists generally tend to treat law as the result of politics (and thus as
somehow epiphenomenal, and of lesser importance7), for Arendt, so it seems, law was more than
just the outcome of politics, or the reflection of politics, or the handmaiden of politics. Reflecting
1
Professor of International Organizations Law, University of Helsinki; Director, Academy of Finland Centre of
Excellence in Global Governance Research. Many thanks to Larry May for his useful comments on an earlier
version of this paper.
2
One of the few present-day public intellectuals who come to mind as someone who occasionally addresses such
issues is Jürgen Habermas.
3
Despite, by her own admission, not understanding much about current affairs, as she wrote in playful French to
Heinrich Blücher, who would become her second husband. See Hannah Arendt – Heinrich Blücher: Briefe 19361968 (Munich: Piper, 1999, L Köhler ed.), at 79.
4
See H. Arendt, ‘Lying in Politics: Reflections on the Pentagon Papers’, in H. Arendt, Crises of the Republic (1972)
3-47. The legal background and political manoeuvring within the US Supreme Court is well-sketched in B.
Woodward & S. Armstrong, The Brethren: Inside the Supreme Court (1979)
5
See H. Arendt, ‘Reflections on Little Rock’, reproduced in P. Baehr (ed.), The Portable Hannah Arendt (2000)
231-246, as well as, in slightly different form, in H. Arendt, Responsibility and Judgment (2003, J. Kohn ed.) 193213. References will be to the former.
6
See H. Arendt, ‘Socrates’, in H. Arendt, The Promise of Politics (2005, J. Kohn ed.) 5-39, at 6.
7
This applies not just to political theorists, but to all who somehow occupy themselves with politics as a profession.
For a brief overview of the skewed relationship between international lawyers and international relations scholars,
see J. Klabbers, ‘The Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinarity’,
(2004/05) 1 Journal of International Law and International Relations 35-48.
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on legal trials and judgements made sense to her, precisely because of their political relevance.w
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Law, to her, was an intrinsic part of political action and, as every activist will realize, often
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political action is geared to facilitate legal change. Typical for the attention Arendt bestowed on
legal affairs is her acidic political interpretation of the “abysmal failure” of the Nuremberg trials:
“The attempt to reduce the Nazi demographic policies to the criminal concepts of murder
and per secution had the result, on the one hand, that the very enormity of the crimes
rendered any conceivable punishment ridiculous; and, on the other, that no punishment
could even be accepted as “legal,” since it presupposed, together with obedience to the
command “Thou shalt not kill”, a possible range of motives, of qualities which cause
men to become murderers and make them murderers, which quite obviously were
completely absent in the accused.” 8
Arendt’s views on the relationship between law and politics were, quite obviously, dependent on
her views on the two elements of the equation separately. While she wrote quite a bit on her
concept of politics and set it out, with some coherence, in a single volume (The Human
Condition, first published in 1958), a string of essays published in a single volume (Between Past
and Future) and in a posthumously published work written a few years earlier (Introduction into
Politics), her thoughts on law have always remained more sketchy and have, as far as I know,
never been fully reconstructed by Arendt scholars. Perhaps the most obvious (or most wellknown) hint she dropped concerned the “right to have rights”: in thirteen brilliant pages in The
Origins of Totalitarianism, the work which established her as a political theorist, she made clear,
under the heading ‘The Perplexities of the Rights of Man’9, that human rights had little to offer
those who were, as she herself had been for a long time, stateless.10 Human rights, so she argued,
could only come to fruition in the framework of wider political communities 11: those who are not
part of a political community (a state, typically) cannot count on any protection either: “Not the
loss of specific rights, then, but the loss of a community willing and able to guarantee any rights
whatsoever, has been the calamity which has befallen ever-increasing numbers of people. Man, it
turns out, can lose all so-called Rights of Man without losing his essential quality as man, his
8
See H. Arendt, ‘Understanding and Politics (The Difficulties of Understanding)’, in H. Arendt, Essays on
Understanding 1930-1954 (1994, J. Kohn ed.) 307-327, at 310.
9
See H. Arendt, The Origins of Totalitarianism (3d edn, 1979), at 290-312. Apparently, much of this was based on a
text first published in 1949, in German, titled ‘Es gibt nur ein einziges Menschenrecht’. For an extensive discussion,
see H. Brunkhorst, Hannah Arendt (1999).
10
The excellent standard biography is E. Young-Bruehl, Hannah Arendt: For Love of the World (2d edn, 2004).
11
Elsewhere she suggested that the universalism underlying human rights thought ran the risk of becoming a
glorified Esperanto. See H. Arendt, ‘Karl Jaspers: Citizen of the World?’, in H. Arendt, Men in Dark Times (1983),
81-94, at 89.
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later she would point out that the only truly political rights happen to be the right to vote and the
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human dignity. Only the loss of a polity itself expels him from humanity.” 12 And a few years
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right to run for office, and those are typically not granted to resident aliens but only to
nationals. 13
What is clear is that, to Arendt, law is itself intensely political; what is unclear is what
this means. This essay (‘article’ being too big a word) is an attempt to reconstruct Arendt’s
thoughts on law and its connections to politics, followed by a brief discussion of some of the
issues in international law about which she had something of interest to say. As many will
acknowledge, this applies to international criminal law and to human rights; her writings on
these topics will be discussed in somewhat scattered form throughout the present piece, as they
serve also to illustrate Arendt’s legal thought. Less obviously perhaps, she also had useful
insights to offer on the currently popular idea of the constitutionalization of international law. It
will be convenient to start with her views on politics, as these are inextricably linked to her legal
thought.
II
During her lifetime, Arendt was typically treated with some disdain by those working in the
same field; indeed, she consciously distanced herself from philosophy, preferring to think of
herself as a political theorist instead.14 Professional philosophers would typically accuse her of
being mistaken in her reading of classical Greece 15, of being perhaps intuitive rather than
cerebral, of being rather aloof and haughty16 or insensitive17 and, after the Nazi regime, many
12
See Arendt, The Origins of Totalitarianism, supra note 9, at 297. Explorations include J. Isaac, ‘A New Guarantee
on Earth: Human Dignity and the Politics of Human Rights’, in J. Isaac, Democracy in Dark Times (1998) 73-99; J.
Klabbers, ‘Glorified Esperanto? Rethinking Human Rights’, (2002) 13 Finnish Yearbook of International Law 6377, and B. Cotter, ‘Hannah Arendt and “The Right to Have Rights”’, in A.F. Lang, Jr. & J. Williams (eds.), Hannah
Arendt and International Relations: Readings Across the Lines (2005) 95-112.
13
See Arendt, ‘Reflections on Little Rock’, supra note 5, at 237.
14
See in particular the transcript of an interview first aired on German television, and reproduced under the title
‘”What Remains? The Language Remains”: A Conversation with Günter Gaus’, in The Portable Arendt, supra note
5.
15
See, .e.g., M. Ignatieff, Isaiah Berlin: A Life (2000), at 253.
16
In Laqueur’s words:, what is bothering about Arendt is “less the essence of what she said than the undue
generalizations, the exaggerations, the violence and aggression in her attacks, the one-sidedness of her judgment.”
See W. Laqueur, ‘The Arendt Cult: Hannah Arendt as Political Commentator’, in S.E. Ascheim (ed.), Hannah
Arendt in Jerusalem (2001) 47-64, at 61.
17
Benhabib suggests that Arendt’s famous Eichmann study “exhibited at times an astonishing lack of perspective,
balance of judgment, and judicious expression”, and finds that her comments on Eichmann’s prosecutor were
“almost racist”. See S. Benhabib, ‘Arendt’s Eichmann in Jerusalem’, in D.Villa (ed.), The Cambridge Companion to
Hannah Arendt (2000) 65-85, at 65.
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former tutor and lover Martin Heidegger. To a large extent though, it would seem that the
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may have felt uncomfortable with her continued warm (but not uncritical18) feelings for her
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disdain found its cause in Arendt’s tendency to turn the regular academic philosophical approach
on its head: whereas most philosophers first develop a view on the individual and, from there,
extrapolate to capture the relations between individuals (social or political or both), thereby often
suggesting that groups of individuals would merely be aggregates of the single stereotypical
individual, Arendt worked the other way around. Her work during the 1950s and 1960s20, from
The Origins of Totalitarianism via The Human Condition to On Revolution, is devoted to
politics; it was only towards the end of her career that she started systematically to develop
thoughts on individual faculties21, formulating (but never properly finishing) the Kant-inspired
thesis that political judgment is related to aesthetic judgment. 22
In addition, Arendt was, and remains, difficult to categorize. She has been enlisted by
conservatives and progressives alike23; feminist have been inspired by her work, as have both
modernists (most prominently Habermas, perhaps24, but others as well25) and post-modernists.
And Arendt herself was fairly ecumenical in where she drew her inspiration from: clear sources
of inspiration are Aristotle and Kant, but then so are Heidegger and Nietzsche, not to mention
Marx. 26 And while she generally held Christianity to be apolitical, favouring the contemplative
life rather than the vita activa, she nonetheless drew on Christianity for inspiration as well,
18
Writing to Jaspers, she famously characterized Heidegger as lacking character, “in the sense that he literally has
none and certainly not a particularly bad one.” See L. Kohler & H. Saner (eds.), Hannah Arendt – Karl Jaspers:
Correspondence 1926-1969 (1992, Kimber & Kimber trans.), letter no. 93, 29 September 1949, at 142.
19
See the gossipy rendition in E. Ettinger, Hannah Arendt / Martin Heidegger (1995); a recent response of sorts is
D. Maier-Katkin & B. Maier-Katkin, ‘Hannah Arendt and Martin Heidegger: Calumny and the Politics of
Reconciliation’, (2006) 28 Human Rights Quarterly 86-119.
20
One hesitates to call this her earlier work, in that she had written the better part of two monographs already before
The Origins of Totalitarianism, one doctrinally philosophical on St Augustine, and one (not quite completed at the
time) on the salon of Rachel Varnhagen. Both are generally thought to already contain the seeds of some of her
more overtly political work: she would return to Augustine to develop her politically relevant notion of natality (as
will appear below), while Varnhagen stood model for the Jew as pariah, another significant Arendtian notion. See,
e.g., R. Bernstein, Hannah Arendt and the Jewish Question (1996); T. Parvikko, The Responsibility of the Pariah
(1996).
21
The key-word here is ’systematically’ for, as Bernstein makes clear, these also underlie her earlier work. See R.
Bernstein, ‘Arendt on Thinking’, in The Cambridge Companion, supra note 17, 277-292.
22
Her work on judgment and its political relevance was posthumously published, in an edited version based on a
series of lectures given in 1970, as H. Arendt, Lectures on Kant’s Political Thought (1982, R. Beiner ed.). It
completed a trilogy, the first two parts dealing with thinking and willing. Those first two parts are published together
as H. Arendt, The Life of the Mind (1978).
23
As Hauke Brunkhorst puts it: ”Arendt kann ebenso irritierend reaktionär sein wie sie – oft genug – verblüffend
progressiv ist.” See Brunkhorst, supra note 9, at 138.
24
See Jürgen Habermas, Between Facts and Norms (1996, Rehg trans.).
25
A valiant attempt to formulate a left-wing politics on Arendtian foundations is Ph. Hansen, Hannah Arendt:
Politics, History and Citizenship (1993).
26
Although she would also dismiss Marx, in quite sophisticated terms, as being “not interested either in freedom or
in justice. (And he’s a terrible pain in the neck in addition.)” See Arendt-Jaspers Correspondence, supra note 18,
letter no. 142, 13 May 1953, at 216.
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especially on the teachings of Augustine, to whom she had devoted her doctoral dissertation and
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who, she sometimes claimed, was Christianity’s only serious political philosopher.
Having been trained in philosophy, her earliest forays into politics were less than surefooted, perhaps precisely because of difficulties in conceptualizing the individual in relation to
the world. Typical is her early interpretation of Aristotle’s famous dictum that man is a political
animal (‘zoon politikon’)27. In a fragment written in 1950, she suggests (without much argument
except an unspecified reference to Hobbes) that this cannot mean that there is something
essentially political about individuals. Instead, the individual him- or herself is a-political;
politics is that what happens between individuals, and thus outside them personally. 28
Four years later though, in a lecture containing many of the seeds that would later come
to fruition in The Human Condition, she had further developed this understanding, tracing
politics back not so much, as political philosophers are wont to, to the necessity of living
together in a pluralist world (although, as we shall see, she too embraced plurality as her starting
point), but rather to the human capacity to act, including, in Aristotelian fashion, the capacity to
communicate.29 And this would suggest that there is something inherently political about
humans, thus adapting her earlier interpretation of Aristotle’s zoon politikon. Still, this sets her
aside from others: for her, the relevant thing is that politics starts with plurality, and that this
plurality signifies that different people function differently, have different ideas and opinions,
and come to different judgments in political matters. Plurality, then, literally means plurality, not
merely, as it often does to others, a single stereotypical human being in the aggregate.
Arendt’s political theory can usefully be (and often is) summed up in a few sentences.30
For her, politics is not just about who gets what, when, and how; it is not just about power and
the distribution thereof, as it is for most political theorists.31 It is also, and predominantly so,
about how to organize our lives together, and how to debate and discuss our common future or
futures. To this end, a pure version of politics (not entirely unlike Kelsen’s pure law) would be
useful: a politics stripped of all attempts by individuals to promote their own interests. What
27
See Aristotle, The Politics (1992 edn., Sinclair transl.), at 59 (book I, ch. ii).
”... der Mensch ist a-politisch. Politik entsteht in dem Zwischen-den-Menschen, also durchaus ausserhalb des
Menschen. Es gibt daher keine eigentliche politische Substanz. Politik entsteht im Zwischen und etabliert sich als
der Bezug.” See H. Arendt, Was ist Politik? (1993, U. Ludz ed.), at 11. The English translation is published as
‘Introduction into Politics’, in The Promise of Politics, supra note 6, 93-200. The quote reads: “… man is apolitical.
Politics arises between men, and so quite outside of man. There is therefore no real political substance. Politics
arises in what lies between men and is established as relationships.” (at 95, italics omitted).
29
See H. Arendt, ’Concern with Politics in Recent European Philosophical Thought’, in Essays on Understanding,
supra note 8, 428-447.
30
A brilliant and brief rendition is D. Villa, ‘Introduction: The Development of Arendt’s Political Thought’, in The
Cambridge Companion, supra note 17, 1-21. Influential comprehensive studies of her Arendt’s political thought
include M. Canovan, Hannah Arendt: A Reinterpretation of her Political Thought (1992), and D. Villa, Arendt and
Heidegger: The Fate of the Political (1996). My reading of Arendt owes much to both.
31
For a useful overview (in Dutch, alas) on the meaning of politics, see M. Fennema & R. van der Wouden (eds.),
Het politicologen-debat: wat is politiek? (1982).
28
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politics stands for is discussion in the public sphere about public topics and ideals, about takingw
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care of the world, and the main point of the discussion is not even to reach a result, but resides in
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the activity itself: it is only in politics that humans can express themselves fully to the world, and
can excel in their own individuality. This then paints a strongly participatory picture: a picture of
politics as a public activity in which all can participate, and where private economic and social
interests and arguments, and even considerations of morality, should not be allowed to shine
through.32 For as soon as this would happen, the political community would be “dissolved from
within”: the social would come to “overwhelm” the republic. 33
Still, in particular given the capacity of humanity to destroy the world by means of
nuclear weapons (she was living in the US when the bombs on Hiroshima and Nagasaki were
dropped, and was thoroughly frightened by their potential), capacity for renewal assumes prime
importance. Arendt found this in her concept of natality. In a literal sense, every new birth of
every new child carries the potential for a new beginning for humankind; more metaphorically,
natality signifies the political power of people to come together anew, to organize themselves
anew, to form a new political community: hence her keen interest in the phenomenon of
revolution, as exemplified in her book On Revolution. For her, revolution marked a new
beginning, not merely, as so often, the overthrow of the ancien régime. 34
This politics, moreover, is the only possible way to guarantee freedom: “The meaning of
politics is freedom.” 35 Only in politics can men and women be truly free; only in political action
can they express themselves without having to worry about having to go to work in the morning,
or having to worry about how to feed their children. While labour may be necessary for people to
sustain themselves, and work may create useful and lasting artefacts, the political world revolves
around a concept of action of which, in turn, speech is an important component.36 For, as
Aristiotle had already suggested, it is the capacity of speech which makes men a zoon politikon.37
A political community then allows people to make the most of themselves. Peter Euben puts it
well: “For Arendt, a political community as opposed to the ersatz politics of a Platonic city or a
32
Weltfremd as this may seem, it is probably not too far-fetched to suppose that Rawls based his veil of ignorance
on similar considerations. See J. Rawls, A Theory of Justice (1973).
33
See Arendt-Jaspers Correspondence, supra note 18, letter no. 152, 21 December 1953, at 235-236.
34
“…the end of rebellion is liberation, while the end of revolution is the foundation of freedom.” And a few
sentences later: “… there is nothing more futile than rebellion and liberation unless they are followed by the
constitution of the newly won freedom.” See H. Arendt, On Revolution (1963), at 142.
35
See Arendt, ‘Introduction into Politics’, supra note 28, at 108.
36
This distinction between labour, work and action as separate concepts is set out most clearly in H. Arendt, The
Human Condition (1958). See also the brief outline under the heading ‘Labor, Work, Action’, as reproduced in The
Portable Arendt, supra note 5, 167-181.
37
See Arendt, Socrates, supra note 6, at 35. See also Aristotle, supra note 27, at 60.
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liberal state requires the contentiousness of strong-willed individuals who also appreciate how w
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It is no surprise, e.g., then when called upon for jury duty in the mid-1960s, she
thoroughly enjoyed herself, as she reported to Jaspers: “The whole business is really quite
wonderful. You sit together with people from all classes, and the deliberations are very
impressive, on the one hand because everyone takes the matter of justice very seriously and on
the other because everyone is very happy to be there even if it means a significant loss of money
and time for just about everyone. It is a duty of citizenship, and people are happy to assume it.
And they perform it without any pretensions.”39
But how then to figure out which political expressions to adhere to or reject? How to
figure out who would be right, and who would be wrong? At first blush, a politics for the sake of
politics itself would require some way of delimiting true from false, worthwhile from useless,
beneficial from harmful. One cannot just tell others that such-and-such is a bad idea; instead one
needs to have some yardstick for judging these things, and this Arendt found in Kant’s doctrine
of aesthetic judgment. As Benhabib puts it, in Kant’s doctrine “Arendt discovered a procedure
for ascertaining intersubjective agreement in the public realm.” 40 In much the same way that we
can meaningfully debate the beauty of a painting or a piece of music, we are also capable of
debating political action and judging the wisdom or folly of past or prospective courses of
action. 41
As a result, though, politics is necessarily a fragile activity, and prone to unpredictability.
Indeed, on one interpretation (which would find a solid basis in parts of Arendt’s work42),
politics in its true meaning is so fragile that it is hardly ever present; typically, it would only
occur in revolutionary situations, where people are temporarily engaged with discussing their
common futures before things become the routine of everyday partisan politics again. The US
revolution of the 18th century was an example, as was the Hungarian uprising of 1956, however
short-lived. She would no doubt also have embraced the enthusiasm with which eastern
Europeans responded to the crumbling of the Soviet empire around 1990 as a true example of
politics, but was clearly less impressed by the development of everyday politics into pre-cooked
deals between locked-in interest groups. Her ideals were derived, as many have noted, from
ancient Greece, although it would seem fair to suggest that hers was not a wistful nostalgia, but
rather a search for historical inspiration, inevitable in any attempt to understand politics: “The
38
See P. Euben, ‘Arendt’s Hellenism’, in The Cambridge Companion, supra note 17, 151-164, at 156.
See Arendt-Jaspers Correspondence, supra note 18, letter no. 414, 16 January, 1967, at 666.
40
See S. Benhabib, The Reluctant Modernism of Hannah Arendt (1996), at 189.
41
Arendt never fully elaborated this, and some commentators remain sceptical. See e.g. R. Beiner’s ‘Interpretive
Essay’, in Arendt, Kant’s Political Thought, supra note 22.
42
See, e.g., her ’Introduction into Politics’, supra note 28, at 119.
39
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Greek polis will continue to exist at the bottom of our political existence – that is, at the bottomw
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of the sea – for as long as we use the word ‘politics’.”43
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This connection of politics to revolution may, however, be too narrow a reading of
Arendt’s conception of politics, for on other occasions she suggests that politics occurs wherever
people relate to each other without being completely overwhelmed by their own interests: in the
1950s, she could still write that international politics was a proper example of politics precisely
because it could not be reduced to bargaining about economic interests.44 And indeed, it would
seem fair (and more fruitful) to regard Arendt’s conception of politics not as some vague
reference to a past which may never have existed as such in ancient Greece to begin with45, but
rather as developing a style of thinking about politics where individuals jointly, in all their
plurality, take care of the world, and assume responsibility for it.46
Politics, then, to Arendt, is not (or not only) a matter of “who gets what, when and how”,
as it is classically described. Neither is politics only a matter of acquiring and utilizing power in
a more Foucauldian sense (I am not aware of Arendt discussing Foucault anywhere, but my
guess is that she would look favourably at his work, not least for its maverick qualities), nor is it
a means to reach agreement and accomplish certain goals, as modern discourse theory and
deliberative democracy suggest. What sets Arendt apart (relatively speaking, of course47) is that,
to her, politics is its own reward. This is difficult to grasp, for our tradition of political thought is
immersed in thinking in terms of ends and means, whereby politics is often the means to a
further, higher end, somewhere beyond politics: the Marxist workers’ paradise, the liberal rights
heaven, what have you. To Arendt, by contrast, politics is its own reward, because it gives
people the opportunity to excel and present themselves in public, to an audience, and in doing so
43
See H. Arendt, ‘Introduction: Walter Benjamin 1892-1940’, in W. Benjamin, Illuminations (1973), 7-55, at 53
(emphasis in original).
44
See H. Arendt, ‘What is Freedom?’, in H. Arendt, Between Past and Future (1977) 143-171, at 155: “Only
foreign affairs, because the relationships between nations still harbour hostilities and sympathies which cannot be
reduced to economic factors, seem to be left as a purely political domain.” Elsewhere though (and no doubt one
reason why she has often been accused of being unsystematic), she seems to equate foreign policy with the nonpolitical. See, e.g., Arendt, Introduction into Politics, supra note 28, at 165.
45
Taminiaux argues cogently that however important ancient Greece may have been to Arendt, her conception of
politics owes much to republican Rome as well. See J. Taminiaux, ‘Athens and Rome’, in The Cambridge
Companion, supra note 17, 165-177. On the relevance of Roman political thought, see also Q. Skinner, Liberty
Before Liberalism (1998).
46
One of the sources of her critique of bureaucratic governance was precisely that it ended up with no one being
responsible for anything anymore: this would result in anonymous despotism. See Introduction into Politics, supra
note 28, at 97. Some of this was based, quite obviously, on her reading of Kafka: see Arendt, ‘Franz Kafka: A
Revaluation’, in Essays on Understanding, supra note 8, 69-80.
47
To some extent a kindred spirit though is the British philosopher Oakeshott: see M. Oakeshott, On Human
Conduct (1975). A less than fully elaborated recent contribution underlining the idea of a transcultural conversation
based on the liberal value of toleration is K.A. Appiah, Cosmopolitanism: Ethics in a World of Strangers (2006).
Appiah is Arendtian in his rejection of the idea that this transcultural conversation should lead to some tangible
results, but lacks the contrariness that characterizes both Arendt and Oakeshott.
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is our best chance to fend off evil. For evil can come about when people act in secrecy, and when
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they stop caring for the world, only to care for themselves. 48
Arendt’s concept of politics has met with its fair share of criticism, of course. Chief
amongst these is the suggestion that one can hardly take individual and group interests out of the
equation, for what would be left to discuss? What would politics be about if not about such
things as the price of milk, the salaries and working conditions of workers or the length of paid
summer vacations? 49 On occasion, dubious stains on an intern’s dress may provide some
political fodder or arouse people’s interest, but this too falls far short of Arendt’s standards of
what makes politics an important activity. Indeed, some have posited that few people would
actually be all that interested in a politics stripped of all things social and economic, resulting in
mass apathy and a small class of interested people who would, by virtue of being interested,
become specialists and in that way end up monopolizing politics, rather contrary to Arendt’s
intentions. 50
III
Either way, Arendt’s politics is a fragile affair. It needs constant protection and, no less
important, left entirely to its own devices it might lead to unpredictability, in much the same way
in which improvisational theatre might result in chaos if not supported by some form of
structure.51 This structure, then, Arendt found in the law. The remedy for unpredictability, so
Arendt learned from Rome, is the faculty (unique to humans) of making and keeping promises:
pacta sunt servanda.52 It is no coincidence, so she points out, that political thought over the
centuries has been dominated by contract theories. Indeed, the faculty of promising serves two
immediate purposes. On the one hand, the fact that man is free means he can never be sure
himself of what he will do tomorrow: this creates uncertainty. On the other hand, the fact of
human plurality suggests that man not only does not know what he himself will do tomorrow,
but also cannot be sure as to what others, and the community he is part of, will do tomorrow.
48
This is further explored in J. McGowan, Hannah Arendt: An Introduction (1998), esp. at 100-108.
Most subtly, see H. Pitkin, The Attack of the Blob: Hannah Arendt’s Concept of the Social (1998).
50
See the fine study (in Dutch) by I. de Haan, Zelfbestuur en staatsbeheer: het politieke debat over burgerschap en
rechtsstaat in de twintigste eeuw (1993).
51
The theatre metaphor is not entirely coincidental. See R. Sennett, The Fall of Public Man (1974).
52
“All political business is, and always has been, transacted within an elaborate framework of ties and bonds for the
future – such as laws and constitutions, treaties and alliances – all of which derive in the last instance from the
faculty to promise and to keep promises in the face of the essential uncertainties of the future.” See Arendt, ´What is
Freedom´, supra note 44, at 164.
49
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Hence: promises (and thus contract); indeed, these form “the only alternative to a mastery which
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relies on domination of one’s self and rule over others”.53
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Taken to the extreme, however, a life filled with promises ends up undermining itself:
while promise is a means to come to terms with and protect freedom, at the extreme it could
make freedom and politics impossible (this is, indeed, one of the paradoxes of constitutional
theory54), so what Arendt ends up advocating in evocative, but perhaps less than fully clear
terms, is the use of promises to create ‘islands of predictability’, or ‘guideposts of reliability’.55
The point as such is clear enough, even if her conclusion is somewhat surprising. To her, an
overdose of promises means they lose their binding force: “The moment promises lose their
character as isolated islands of certainty in an ocean of uncertainty, that is, when this faculty is
misused to cover the whole ground of the future and to map out a path secured in all directions,
they lose their binding power and the whole enterprise becomes self-defeating.”56
This does create one obvious problem though: how to determine that promises have taken
over, and that the islands of predictability have turned into vast landmasses? Or can one pick and
choose, and only set aside those promises one no longer feels attracted to? Arendt never, as far as
I am aware, addressed the issue, and in not doing so provides further ammunition to her critics’
typical charge that she often refused to become sufficiently concrete.
In addition to stressing the role of promising, Arendt picked up an even more important
lesson from republican Rome about the key role of legislation. Legislation was not, as the Greeks
had thought, somehow pre-political (what architecture is to building) 57, but itself a key element
of political action.58 Telling is the following statement: “The crucial distinction … is that only
for the Romans does legislative activity, and with it the laws themselves, belong to the realm of
politics, whereas according to the Greeks, the legislator’s activity was so radically disconnected
from the truly political activities and affairs of the citizens within the polis that the law-giver did
not even have to be a citizen of the city but could be engaged from outside to perform this task,
much like a sculptor or architect commissioned to supply what the city required.”59
Legislation itself, in the meantime, closely seemed to resemble contract. Indeed, Arendt
had to maintain as much, in order to be considered consistent. If it is the case that force,
domination and rule are not authentically political, then any attempt to bring legislation and
53
See Arendt, The Human Condition, supra note 36, at 244.
See, in a somewhat different context, J. Klabbers, ’Constitutionalism Lite’, (2004) 1 International Organizations
Law Review 31-58.
55
See Arendt, The Human Condition, supra note 36, at 244.
56
Ibid., at 244.
57
This, however, is the interpretation offered by Brunkhorst, supra note 9, at 125-126.
58
As Taminiaux puts it, for Arendt “the political genius of Rome consisted in remedying the deficiencies of the
Greek political views.” See Taminiaux, supra note 45, at 174.
59
See Arendt, Introduction into Politics, supra note 28, at 179.
54
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politics (in the Arendtian sense) together would have to stress the consensual nature of law, all w
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law, including legislation. There is another element of consistency here though. Law, Arendt
claims, brings people together; it establishes new relationships between men, perhaps even
between former enemies. Yet, in order to do so without lapsing into domination of one sort or
another, is has to be balanced towards all parties, and this, it would seem, is an implicit
recognition that what matters is not so much the outcome, but the process: the content of the law
is somehow less significant than the fact that parties can discuss and debate, and perhaps even
agree on things.60 This also is why constitutions are of relevance. As Waldron puts it: “Like a
promise, a constitution might appear to limit our freedom; but at the same time it creates
something special – the power of a political community – whose importance consists precisely in
mitigating the incalculability that human freedom gives rise to.”61
Probably for this reason, she was not at all enthusiastic about the bureaucratic state, in
which government would proceed by means of administrative measures taken by faceless
bureaucrats and in which, in the end, no one would be held responsible. Whereas for some this
might be the ultimate image of a society based on law (the impartial application of higher norms,
after all, is an important element of any description of the Rule of Law), Arendt saw it
differently: for her, administration and law had fairly little to do with each other: law ought to
keep the administration in check, but should not become its handmaiden. In a perfect
bureaucracy, Arendt thought, law would be snowed under: “When Hitler said that a day would
come in Germany when it would be considered a “disgrace” to be a jurist, he was speaking with
utter consistency of his dream of a perfect bureaucracy.”62
What is important to realize though, is that for Arendt, the idea that law ought to keep the
administration in check did not stem from any particular concern about the moral content of law;
she was highly sceptical about the role of values and would clearly prefer to keep law and
morality separate.63 Instead, or so it would seem, her thoughts on law and administration found
their source in what she held to be the intimate connection between law and politics. Law is the
form that political agreement typically takes, and is also the way in which politics can be
protected. Bureaucratic administration, however, is anti-politics: faceless and irresponsible at
best, downright totalitarian at worst. Moreover, totalitarian regimes typically invoke a higher
60
Ibid, at 180. Honig makes a similar point about law always being, by definition, the ’mongrel’ result of agreement
between strangers. See B. Honig, Democracy and the Foreigner (2001), at 39.
61
See J. Waldron, ’Arendts Constitutional Politics’, in The Cambridge Companion, supra note 17, 201-219, at 212.
62
See H. Arendt, Eichmann in Jerusalem (1964), at 290. The words quoted are part of the postscript, written in
1964.
63
Arendt never, to my knowledge, discussed Fuller’s conception of the internal morality of law: the idea that legal
rules bound to be morally acceptable as long as the law respects a handful of basis requirements: it should be
published, non-contradictory, non-retro-active, et cetera. In short: proper procedure would lead to morally
acceptable results. I would speculate that she would have some sympathy with this approach, but would be reluctant
to share Fuller’s clearly non-positivist inspiration. See L. Fuller, The Morality of Law (rev. edn, 1969).
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history; their defiance of positive law may, indeed shall, be excused in the name of the greater
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good, the higher value. This in turn means, that totalitarian thought is, in the end, a species of the
same genus as the type of thought which holds law to be infused by morality and which, in case
of conflict, would not hesitate to give preference to morality: in both cases, a violation of
positive law would be justified in the name of some (unverifiable) higher good.64 This, to
Arendt, was quite a spectre: hence her insistence that the only law valid among humans, without
denying the possible existence of natural law, would be positive law: a lawful government would
be “a body politic in which positive laws are needed to translate and realize the immutable ius
naturale or the eternal commandments of God into standards of right and wrong. Only in these
standards, in the body of positive laws of each country, do the ius naturale or the
Commandments of God achieve their political reality.”65
IV
Admittedly, Arendt never was very clear on law, in particular on legislation. She lacked the legal
background to completely capture some of the technicalities involved, and clearly looked at the
law with the eyes of a political theorist, one trained as a philosopher, no less. And yet, in passing
and almost without realizing it66, her work contains a few useful scattered insights relating to law
in general, and international law in particular. Perhaps her most ‘legal’ works are her report on
the trial of Adolf Eichmann and her discussion of desegregation in the American south. At any
rate, these two pieces together combine to sketch a subtle picture of the position of law in
relation to the world.
The book on Eichmann, for all the controversy it sparked, has become justly famous for
its shattering analysis of what happens when people stop thinking: Eichmann’s greatest crime,
after all, resided not in any monstrous evil intentions, but in his incapacity to think 67; it resided
literally in the thoughtlessness with which he could, with a stroke of his pen, condemn thousands
64
The links between liberalism and totalitarianism are explored in M. Halberstam, Totalitarianism and the Modern
Conception of Politics (1999).
65
Arendt, The Origins of Totalitarianism, supra note 9, at 464 (emphasis in original).
66
It has been observed that those uninitiated in a certain academic discipline might be well-placed to identify some
of its blind spots or even come up with innovations or breakthroughs. See T. Kuhn, The Structure of Scientific
Revolutions (2d ed., 1970).
67
In the postscript, she put it in perhaps overly inflammatory terms: “He merely, to put the matter colloquially,
never realized what he was doing.” See Arendt, Eichmann, supra note 62, at 287 (italics omitted – JK). The main
analysis (e.g. at 48-55) is more subtle though, suggesting that he thought in clichés which, in turn, was partly the
result of the totalitarianism prevailing in Nazi Germany.
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form of punishment that could fit the crime. As early as 1946 (a decade and a half before
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to death.68 To Arendt, this presented a problem: for one thing, it would be difficult to think of aw
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Eichmann’s trial) she wrote to her erstwhile mentor Karl Jaspers: “The Nazi crimes, it seems to
me, explode the limits of the law; and that is precisely what constitutes their monstrousness. For
these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is
totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any
and all legal systems.”69
Moreover, and arguably more important still, following the biblical tradition, we tend to
think of crime as inevitably resulting from evil intentions. 70 Our criminal laws, in other words,
are based on the idea that evil intentions ought to be punished, even to the extent that people may
be prosecuted for having attempted to commit crimes, without succeeding. In the absence of
mens rea, however, things get decidedly more difficult: our traditions (legal, moral,
philosophical) have yet to find a way of dealing with crimes without evil. 71 The point is not, of
course, that no such attempts are being made: some branches of the law recognize strict liability,
e.g. The point is, rather, that any attempt to fit ‘unintended’ crimes into the framework built upon
traditional notions of crime is bound to raise questions, as has become more than visible in the
recent attempts to establish international criminal tribunals. 72 Perhaps this means the law should
focus on effects rather than intent – this is one possible interpretation of Arendt’s position 73;
perhaps the law should at the very least, as recent commentators have suggested, show some
humility when attempting to deal with the unspeakable, and realize that judgment may, on
occasion, better be left to our moral sensibilities.74
68
The novelist Mary McCarthy, Arendt’s closest friend, suggested that the term “thoughtlessness” no longer carried
the meaning which Arendt ascribed to it: McCarthy suggested that “inability to think” would have been better, as
“thoughtlessness” could too easily be conflated with “neglect” or “forgetfulness”. See C. Brightman (ed.), Between
Friends: The Correspondence of Hannah Arendt and Mary McCarthy 1949-1975 (1995), at 296.
69
See Arendt- Jaspers Correspondence, supra note 18, letter no. 43, August 17, 1946, at 54.
70
As Arendt explained to Jaspers, “… modern crimes are not provided for in the Ten Commandments. Or: the
Western tradition is suffering from the preconception that the most evil things human beings can do arise from the
vice of selfishness. Yet we know that the greatest evils or radical evil has nothing to do anymore with such humanly
understandable, sinful motives.” Arendt-Jaspers Correspondence, supra note 18, letter no. 109, 4 March 1951, at
166.
71
“The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted
nor sadistic, that they were, and still are, terribly and terrifyingly normal… This new type of criminal, who is in
actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him
to know or to feel that he is doing wrong.” See Arendt, Eichmann, supra note 62, at 276 (emphasis in original).
Some of the ramifications are explored in D. Villa, Politics, Philosophy, Terror: Essays on the Thought of Hannah
Arendt (1999).
72
See, amongst others, I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 European
Journal of International Law 561-585.
73
See below, when discussing Eichmann’s punishment.
74
See M. Koskenniemi, ’Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear
Weapons’, (1997) 10 Leiden Journal of International Law 137-162.
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Eichmann not be said to have acted out of evil intentions as traditionally understood , part of
what made his case fairly problematic was also the collective element involved. Eichmann
clearly did not act alone; he was a cog (of intensely debated importance) in a larger machine. To
what extent then is it fair, or even simply useful, to hold a single individual responsible for
atrocities committed by, and in name of, a larger collective? And to what extent is it even
possible to single out with some precision the role played by the individual? As Arendt
complained, the trial of Eichmann was hardly a trial of Eichmann; instead, Nazi-Germany and
the Holocaust were put on trial. 76 Not only did this take something away from the utility of legal
proceedings in general, it also, paradoxically perhaps, undermined itself: precisely by focusing
on the Holocaust, the proceedings suggested that crimes against humanity was a misnomer: “The
crucial point is that although the crime at issue was committed primarily against the Jews, it is in
no way limited to the Jews or the Jewish question.” 77
Arendt was also critical about the basis of Israel’s jurisdiction, although she eventually
decided that to some extent, debates on the basis of jurisdiction were of no great relevance.
Clearly, with Israel having been created only after the Second World War, traditional notions of
territorial or national jurisdiction would be difficult to defend. Hence, it is no surprise that the
prosecutors sought and found refuge in the idea of universal jurisdiction: Eichmann’s crimes
were the sort of crimes outlawed all over the world, and therewith came within the scope of the
principle of universal jurisdiction. This, however, Arendt found problematic, as universal
jurisdiction taps into the universality of values but, as Arendt had it, totalitarianism had been
extremely instrumental in highlighting that values are but fleeting feelings: it is about as easy to
change values as it is to change underwear – she somewhat disdainfully spoke of an Ausverkauf
der Werte78- and values (the word itself suggests as much) typically make sense only in an
instrumental way: in a means-and-ends relationship.79 Values had not been able to resist the
Nazis in Germany or, put differently, ordinary Germans had taken their earlier ideas on right and
75
As something of a second best solution, some have argued that he was, regardless of mens rea, a committed antisemite. See, e.g., Y. Lozowick, ‘Malicious Clerks: The Nazi Security Police and the Banality of Evil’, in Hannah
Arendt in Jerusalem, supra note 16, 214-223.
76
See Arendt, Eichmann, supra note 62, at 6.This consideration may help explain the reluctance of some of the
more powerful states to ratify the Statute of the International Criminal Court. On the oscillation between individual
and collective responsibility in this context, see J. Klabbers, ‘The Spectre of International Criminal Justice: Third
States and the ICC’, in A. Zimmermann (ed.), International Criminal Law and the Current Development of Public
International Law (2003) 49-72.
77
See Arendt-Jaspers Correspondence, supra note 18, letter no. 277, 5 February 1961, at 423.
78
See H. Arendt, ‘The Crisis in Culture: Its Social and Its Political Significance’, in Between Past and Future, supra
note 44, 197-226, at 204.
79
I discuss this at some length in J. Klabbers, ‘The Commodification of International Law’, in E. Jouannet & H.
Ruiz-Fabri (eds.), International Law: Do We Need It? (Forthcoming).
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The Eichmann case also highlighted some other salient legal issues. Not only could
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behaviour; moreover, Eichmann was tried not so much for having offended against humanity,
but for his crimes against the Jews.81 Instead of universal jurisdiction, Arendt would have
preferred to base on something of a ‘spiritual jurisdiction’ basis82, and preferably not by an
Israeli court but by an international tribunal.
There is another element to this: one of the main characteristics of totalitarian regimes,
her earlier analysis of totalitarianism had already suggested, was to turn values upside down:
what might be recognizable as right and wrong in ordinary circumstances would become
unrecognizable under totalitarianism. Faced with regimes intent on taking the ‘human’ out of
humans, individuals lose their capacity to tell right from wrong. Under such circumstances, it
might be all too easy to designate a few individuals afterwards and hold them responsible for
doing something which, at the time, was not recognizably wrong, and may even have been in
conformity with everyone’s expectations. It is not to difficult to occupy the moral high ground in
ordinary times; in dark times, however, the high ground may be difficult to locate.83
This does not mean Arendt rejected all sorts of judgment altogether; indeed, her later
work assigns judgment a central role in political action, and came to do so precisely because of
the Eichmann trial. But it is important to realize that judgment should not turn into facile
moralization: the spectator (doing the judging) should be able to place himself in the shoes of the
accused, and seriously wonder whether he or she would have done things differently.
84
In this
light, she also developed ideas (this is where Christianity comes in) on forgiveness: if we are not
quite aware of what we are doing, then perhaps forgiveness becomes an option, all the more so
as forgiveness facilitates beginning anew, with a clean slate. As Brunkhorst puts it: “Durch Akte
des Verzeihens gewinnt die Kommunikation Macht über das Vergangene.” 85
In short, what the Eichmann trial was guilty of, in Arendt’s view, was in being guided by
moral outrage. It was not an ordinary criminal trial of an ordinary criminal; the crimes were
80
A useful discussion is E.M. Meade, ‘The Commodification of Values’, in L. May & J. Kohn (eds.), Hannah
Arendt Twenty Years Later (1996) 107-126.
81
See Arendt, Eichmann, supra note 62, at 261.
82
She captured this under the heading of territorial jurisdiction, but with a characteristic twist on the meaning of
territory: “It relates not so much, and not primarily to a piece of land as to the space between individuals in a group
whose members are bound to, and at the same time separated and protected from, each other by all kinds of
relationships, based on a common language, religion, a common history, customs, and laws… No State of Israel
would ever have come into being if the Jewish people had not created and maintained its own specific in-between
space throughout the long centuries of dispersion, that is, prior to the seizure of its old territory.” See Arendt,
Eichmann, supra note 62, at 263.
83
A thoughtful discussion is D. Barnouw, Visible Spaces: Hannah Arendt and the German-Jewish Experience
(1990), esp. ch. 4.
84
See Arendt, Kant’s Political Thought, supra note 22.
85
See Brunkhorst, supra note 9, at 119. In English: “Communication gains power over the past through acts of
forgiveness” (translation mine – JK).
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wrong and replaced them by new ones. 80 Values then are an unreliable guide to human
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difficult to fit Eichmann’s acts within the framework of criminal law to begin with. Precisely, or
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extraordinary, to such an extent that no real precedent existed86, and to such an extent that it was
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so it seems, because the law was hardly able to deal with the crime under review, refuge was
sought in morality: in claiming that universal values had been transgressed, in claiming that the
idea of non-retroactive application of law was not all that relevant given the circumstances.87
Yet, Arendt felt, to rely on morality was wrong. A trial should be a legal proceeding, and
law and morality are best kept separate.88 Indeed, politics, for her (and therewith law as well),
had little to do with morality, with ‘doing the right thing’. 89 In fact, doing the right thing might
often prove counterproductive, as was most clearly illustrated by the French revolution which,
inspired by its attempts to alleviate the plight of the poor, ended up a nightmare of terror. Politics
is not about right or wrong and, by extension, law is not about right and wrong either. Instead,
politics is about common care for the world, is about being together and living together and
finding common answers and solutions while respecting human plurality.
There simply is no place for moral considerations in such a scheme, mostly because
morality is a set of internal standards.90 The moral person might decide not to engage in activity
X because, she feels, it might be immoral to do so. It does not follow, however, that this same
person can prohibit others from not engaging in the same activity, or punish them if they do,
unless those internal standards have become externalized, by agreement, into law. Those moral
standards on their own might be all too easily subject to change and whim, and thus not be
terribly reliable guides (in the external world, at any rate) for action.91 Arendt’s problem with
morality was not so much that she denied that values could be universal, but rather that she felt
them to be too fragile to serve any public purpose.
86
Nuremberg was not much help, as the IMT had focussed on the decision-makers and had paid much attention to
illegal aggression, almost ignoring the Holocaust. Yet, Eichmann’s trial was, really, the trial of the Holocaust. For a
brilliant analysis of these and other cases, see L. Douglas, The Memory of Judgment: Making Law and History in the
Trials of the Holocaust (2001).
87
Akehurst once put the same thought well in respect of the Nuremberg proceedings: ”… anyone who thinks that
justice demanded the acquittal of the men convicted at Nuremberg has a very peculiar idea about justice.” See M.
Akehurst, A Modern Introduction to International Law (6th edn., 1987), at 280.
88
“The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior motives … can only
detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to
mete out due punishment.” See Arendt, Eichmann, supra note 62, at 253.
89
By way of illustration, she could subscribe to the view that Danish resistance against Nazism and for equal
treatment of the Jews stemmed from political instincts, not from humanitarian sentiments. See Arendt, Eichmann,
supra note 62, at 179.
90
It is for this reason, most likely, that she was not too convinced that Kant had been all that serious in his political
writings, including the celebrated Zum ewigen frieden, which she held to be characterized by an “ironical tone”. See
Arendt, Kant’s Political Thought, supra note 22, at 7.
91
In addition, there is a serious problem involved in relying on morality while the average ‘deskmurderer’ does not
feel in charge in any way: given such a sentiment of powerlessness, the individual moralities of those involved are
not likely to be ‘activated’. I derive the point from L. May, ‘Socialization and Institutional Evil’, in May & Kohn
(eds.), note 80 above, 83-105.
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being put on trial as such – not even with him receiving the death penalty. She felt that his trial
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Somewhat surprisingly at first sight, Arendt had no particular problem with Eichmann
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rightfully should have been done by an international tribunal and on the basis of existing
international law, but did not reject him being tried to begin with. Likewise, she supported the
verdict of the death penalty although, it seems, without the liberal gloss some put on it,
suggesting that penalizing war crimes and crimes against humanity might help deter or even
might help create an accurate historical record. Instead, for her, the punishment was its own
justification: Eichmann’s crimes had been unspeakable, and therefore he deserved to die. This is
puzzling of course: if she truly felt his greatest crime had been his thoughtlessness, then this
would hardly add up to deserving the death penalty. One way to make sense of her position,
though, is to suggest that in applauding Eichmann’s death penalty, she ended up judging him by
the effects of his actions rather than by his intentions. And that, all of a sudden, seems rather
consistent with her general views that criminal law, with its focus on mens rea, has not been able
to accommodate crimes such as those of which Eichmann was accused. Or, if not consistent,
then at least compatible: where mens rea is absent but the effects are nonetheless atrocious,
perhaps it becomes justifiable to take the level of atrocity into account. This may also account for
her earlier comment, in a letter to Jaspers, that it might well be essential to hang Göring.92
While she was happy with Eichmann being subjected to law (or would have been had the
law been more appropriate, perhaps), she was unhappy with the attempt, in the US, to force
desegregation of schools by legal means. This, she notoriously found93, was aiming to use the
legal process to make a political point and, most ironically, doing so over the backs of the most
immediate victims: the black school children who all of a sudden were taken out of their familiar
environments and thrust into white settings: “…this was to burden children, black and white,
with the working out of a problem which adults for generations have confessed themselves
unable to solve.”94
The point Arendt tried to make, it seems, was this: discrimination is a social
phenomenon, and as such, there is nothing particularly wrong with it, as long as it remains
limited to the social sphere: after all, it is merely a matter of making distinctions. Its opposite,
equality, has no role to play in social matters, but is a fundamental political principle:
“…equality not only has its origin in the body politic; its validity is clearly restricted to the
92
I am indebted to Larry May for his help in getting me to articulate this.
Her piece on Little Rock has met with truck loads of criticism. Even those who are fairly sympathetic to Arendt in
general suggest she was dead wrong in opposing the desegregation orders; that doing so clearly was a mistake. See,
e.g., J. Bohman, ‘The Moral Costs of Political Pluralism: The Diemmas of Difference and Equality in Arendt’s
‘Refelctions on Little Rock’’, in May & Kohn (eds.), note 80 above, 53-80. An exception is the more positive
appraisal in J. Kristeva, Hannah Arendt (2001, Guberman trans.), at 113-114.
94
See Arendt, Reflections on Little Rock, supra note 5, at 236.
93
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matter, on issues which are not strictly political but nonetheless belong to the public domain
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public realm.”95 In other words: where discrimination appears in all matters political or, for thatw
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(think, e.g., of seating arrangements in public transport), it should be fought tooth and nail. In
social affairs, however, discrimination is perfectly at ease, and it would be fruitless to fight it:
people should be at liberty to invite whoever they want to their birthday parties, the open
question that remains being the question what exactly counts as private settings, and what as
pubic settings.
What remains worth fighting though (she called this a “crucial point”96, highlighting how
relevant she thought it was) is the legal enforcement of discrimination. Surely, having a law on
the books which holds that black children are only allowed to attend black schools is wrong. Yet,
equally wrong would it be to force these same children to attend white schools against their
wishes or those of their parents. This would turn education from the social matter that it
inherently is into something else: as soon as governments aim to control education and take it out
of the realm of free association, one descends down a slippery slope towards the tyrannical: the
rights of parents to decide where to send their children to school “are challenged only by
dictatorships.”97
The more general point to emerge is that her thoughts on law seemed to revolve around
the idea of law as a guarantor of the political or, perhaps better, as a guarantor of the dividing
lines between the public, the private and the social, the latter embodying something of an
intermediary between public and private. The political needed to be protected by means of
legislation: a positive obligation, to adopt the language of human rights advocacy. With respect
to the social (and by the extension, it would seem, the private), something else would apply:
“While the government has no right to interfere with the prejudices and discriminatory practices
of society, it has not only the right but the duty to make sure that these practices are not legally
enforced.”98 It is one thing to strive to get rid of laws prohibiting children from attending schools
they wish to attend; this is something the law is well-equipped to do. It is something else entirely
though to try to force children to attend schools they may not wish to attend – the law ought not
to be used for this sort of purpose. As she had written almost a decade earlier, “… the greatness,
95
Ibid., at 237.
Ibid., at 235-236. The crucial distinction between a social phenomenon and its legal enforcement would appear to
have been too subtle for some of Arendt’s more vocal critics.
97
Ibid., at 245.
98
Ibid., at 240. Note, incidentally, that Arendt was fairly sanguine about the role of prejudice: prejudices are useful
in everyday life, as abridgments of past experiences, as long as the bear any resemblance to those past practices. See
Arendt, Introduction into Politics, supra note 35. The idea of prejudices as useful abridgments is echoed
(inadvertently it seems) in later jurisprudential work on the properties of rules, suggesting that rules release people
from the obligation to make their own decisions on the numerous issues confronting them on an every day basis,
such as how fast to drive, on which side of the road to drive, et cetera. See in particular Frederick Schauer, Playing
by the Rules (1991).
96
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never what one should do.”
Arendt’s pure politics, it seems, was accompanied by a fairly pure law. Law might well
be inspired by moral concerns but, in the end, should be kept separate from it. Law might also
well be inspired by lofty social motives – alleviating the plight of the poor, improving education
for all – but, Arendt felt, would not be quite suitable for reaching social goals. To those familiar
with the modern welfare state, this may seem curious, as much legislation in the welfare state is
(or used to be, perhaps) precisely, social legislation, aimed to achieve certain social goals. Yet,
the demise of the welfare state (its relative failure) would not have come as a surprise to Arendt,
for two related reasons: the welfare state, with its concomitant need for the application of
technical and detailed regulations, would invite the sort of faceless bureaucracy she abhorred,
with administration taking the place of politics. Second, witness her Little Rock piece, she would
be sceptical about its chances of achieving its goals without slipping uncomfortably into
bureaucracy: one should not expect the law to accomplish what has proved unattainable in the
body politic, and social issues are almost by definition unsuitable for law – and for politics.
That leaves us with a bit of a puzzle for, as many of her critics have suggested, such
things as the duration of the working week, or the level of education of national minorities,
social as they are, would seem natural candidates for political debate and discussion and,
eventually, for some kind of legislation as well. In the absence of social (or socio-economic)
issues, there is not much left for politics to be about, and neither, it would seem to follow, would
there be a great need for law. That is, in itself, perhaps a salutary sentiment: not to have all sorts
of laws on the books that, by definition, will prove unsuccessful; the insight that not everything
can be subjected to legal regulation is, no doubt, a useful insight; whether all socio-economic
issues can be excluded is a different question altogether.
V
The above has already suggested that Arendt continues to be of relevance for international
politics (in fact, it is only recently that her relevance to international relations has started to be
explored 100), and to international law as well. Human rights theory may derive useful insights
from her thoughts on the locally embedded nature of at least the classical political rights (the
right to vote and the right to be elected), which has some impact on the universal nature of
human rights. While her thoughts on the “right to have rights” have been thoroughly criticized
99
See Arendt, The Origins of Totalitarianism, supra note 9, at 467.
See generally Lang and Williams (eds.), supra note 12.
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but also the perplexity of laws in free societies is that they only tell what one should not, but
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the status of this basic right to have rights (it could hardly be a positivist right)101, the critique
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seems to bypass Arendt’s point. For, in Arendt’s view, politics was the only way in which
humans could come to full fruition, could fully develop their potential in the public realm. 102
And if this is so, then public happiness comes to depend on a right to participate in political life,
both through being to vote and to run for office.103Yet, as domestic legislations show, this still
depends on recognition through positivist law: these political rights are still locally legislated. 104
In addition, Arendt’s scepticism with respect to the possible contribution of law to social
or economic goals suggests that one should not be overly optimistic about changing the plight of
people by means of adding ever greater numbers of economic and social rights, and it is quite
possibly no coincidence that these rights, to the extent they materialize at all, tend to materialize
in highly procedural fashion: social and economic rights tend to be re-conceptualized as bundles
of procedural rights, for, as Arendt would no doubt acknowledge, it is only in this way that the
law can accommodate them.105
By the same token, her study of the Eichmann trial still offers much valuable insights to
those engaged in the creation of international criminal law. At the very least, one could argue,
international criminal lawyers ought to be aware that assertions of universal jurisdiction are not
always unproblematic; that it might be difficult at times to disentangle individual culpability and
group responsibility106 and, perhaps most of all, that neither political crimes (some emanations of
terrorism comes to mind, as do large scale human rights violations) nor what Arendt famously
(or infamously) termed the ‘banality of evil’, can easily be captured in traditional categories of
criminal law. 107 Indeed, inspired by such considerations, Drumbl has coined the term ‘law of
atrocity’ and fleshed out some of its characteristics.108
101
See in particular Brunkhorst, supra note 9.
Perhaps Arendt-inspired, Douzinas has noted that human rights are injunctions to people to love each other. This,
however, cannot work: one cannot be ordered to love thy neighbour. See C. Douzinas, The End of Human Rights
(2000). Arendt would add, moreover, that love belongs properly to the private sphere, not to the public realm.
103
It is surely no coincidence that convicted felons are often disenfranchised: they are deemed to be not worthy of
political participation, affecting the “purity of the ballot box”. For a critical discussion, see N.V. Demleitner,
`Continuing Payment on One’s Debt to Society: The German Model of Felon Disenfranchisement as an
Alternative´, (2000) 84 Minnesota Law Review 753-804.
104
Even within the European Union, the right to vote in national elections is reserved to nationals only; permanent
residents are still not granted the right to take part in national elections, although they may vote and run for office in
municipalities and for the European Parliament. See Article 19 TEC.
105
I have argued elsewhere that much the same applies to the right to self-determination. See J. Klabbers, ‘The
Right to be Taken Seriously: Self-Determination in International Law’, (2006) 28 Human Rights Quarterly 186-206.
106
On the connections between the two see, e.g., L. May, Sharing Responsibility (1992).
107
A fine study along similar lines is M. Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt: Criminal
Consciousness in Argentina’s Dirty War (2001).
108
See M. Drumbl, ’Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, (2005) 99
Northwestern University Law Review 539-610.
102
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insights regarding constitutionalism in international law. This currently popular notion comes,
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roughly, in two shapes. First, some discuss, in more or less limited fashion, the
constitutionalization or possible constitutionalization of individual international organizations.
This occurs, most obviously, with respect to the EU109, but also takes place with respect to other
organizations, most notably the WTO perhaps (if nothing else, this signifies considerable
unhappiness with the acts and styles of the WTO110). Typically (if not invariably), such studies
end up suggesting that the organization at issue should be (and is) subjected to general
international law; should be (and is) subjected to judicial review, and should be (and is)
subjected to human rights. Much of this is based on the idea, more fully developed in the second
strand to be discussed, that there are universal, more or less absolute values in international
politics, which ought not to be cast aside, not even by international organizations and for the
sake of international cooperation.111
The second strand is more ambitious still, and insists that the international legal order as
a whole is undergoing some process of constitutionalization. Based on the notion that humanity
shares a few universal values, all action on the international plane should be judged in light of
those values. These have overcome the debilitating role of state consent in their
transmogrification from morality to law, and take the form of jus cogens norms and erga omnes
obligations. As possibly its most enthusiastic protagonist puts it, the international constitutional
order denotes “a system in which the different national, regional and functional (sectoral)
constitutional regimes form the building blocks of the international community (´international
polity´) that is underpinned by a core value system common to all communities and embedded in
a variety of legal structures for its enforcement.”112 Those core values, in turn, are universally
shared, and have acquired a special hierarchical standing, and would obviously be norms with
“strong ethical underpinnings”113 such as human rights and international criminal law, but may
also come to encompass norms such as sustainable development, democracy, and possibly even
trade liberalization. 114
109
The best comprehensive discussion remains J.H.H. Weiler, The Constitution of Europe (1999).
For a sustained discussion, see D. Cass, The Constitutionalization of the World Trade Organization: Legitimacy,
Democracy, and Community in the International Trading System (2005).
111
A different, more modest strand, would hold that instead of subjecting international organizations to
constitutionalization pur sang, it might be more advisable to use the label constitutionalization to describe a process
of increasing control – legal and political – over the acts of international organizations: a constitutionalist paradigm
rather than the traditionally dominant paradigm of functionalism. For a discussion, see J. Klabbers, ‘Introduction’, in
J. Klabbers (ed.), International Organizations (2005). For a more concrete elaboration, see J. Klabbers, ‘Checks and
Balances in the Law of International Organizations’, (2006) 12 Ius Gentium (forthcoming).
112
See E. de Wet, ‘The International Constitutional Order’, (2006) 55 International and Comparative Law
Quarterly 51-76, at 53.
113
Ibid., at 57.
114
Ibid., at 62-63.
110
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the first), for a variety of reasons. On a superficial level, she would probably hold that neither of
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the values singled out in constitutionalization debates are self-evident as to their contents, and
perhaps for the better.115 The one possible exception would be democracy but democracy, she
suggested, was difficult to reconcile with, e.g., respect for human rights, or review of political
action by courts. Indeed, many others have made the same point, often referred to as the
‘counter-majoritarian difficulty’: what if a democratic decision is taken to cast an established
human right aside? One either respects the democratic nature of the decision (in which case the
human right turns out to be nothing more than contingent), or one keeps the right in place,
therewith undermining democracy. One might even go so far as to posit a tension between
constitutionalism itself (as government constrained by law) and democracy (as government by
the people).116 Hence, lumping together a number of values and proclaiming the arrival of a
constitutional order comprising them would fail to convince.
Still, there are a few other points worth addressing. The first of these is that, as hinted at
above, Arendt would not be able to muster much enthusiasm about speaking in terms of values to
begin with. To her mind, the very term value denoted a means-ends type of rationality:
something is of value with a view to accomplishing something else: indeed, being closely
connected to the term exchange-value says it all, really, and this in turn provokes two questions.
First, what then is it that the constitutional values are expected to accomplish? And second, this
higher value (for it can only be higher value) would itself have to be grounded somehow and,
ironically, remain subject to yet higher values, in what can only be an infinite regression. There
is, in the end, nothing absolute about values; they are by definition relative; and if they were
absolute, they would be heavily competing with each other.
Second, there is the moralization associated with thinking in terms of values: those
values, with their “strong ethical underpinnings”, suggest and infusion of morality into law.
Arendt, as noted, would favour keeping law and politics separate, which not only casts some
doubts on the sources of the supposed universal values but, what is more, might also point into a
different direction. It is not, of course, the case that Arendt rejected any role for morality: she
would readily accept that people can “do the right thing” simply for the sake of “doing the right
thing”. But instead of capturing this in values, it is not implausible to suggest that, without being
nostalgic, she would rather resurrect Machiavelli’s old notion of virtù to give effect to moral
115
She was sceptical about any truth claims (other than factual truths) in politics, for a claim that something is true
tends to be an intolerant claim: it cannot tolerate discussion, and therewith stifles political debate. See H. Arendt,
‘Truth and Politics’, in Between Past and Future, supra note 44 , 227-264.
116
For a useful discussion, see F. Michelman, Brennan and Democracy (1999).
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would bother Arendt.
Additionally, the absolutism of the full-fledged constitutionalist mode would probably
have her worried. One cannot argue with or about absolutes, yet without positing the world
community’s core values as absolutes, the entire constitutionalism project would dissipate. And
then there is the practical matter that such a world community would almost by definition lead to
centralization, to something akin to a world government (in itself something to worry about118)
and most likely one without any real kind of politics, where the application of the posited core
values ends up in the hands of bureaucrats, applying norms coming out of nowhere, based not on
agreement between political actors but on someone’s conception of what the world needs, and
without any system of accountability.
She would have been more sympathetic to the idea of judicial review, provided that the
idea would remain limited to testing, indeed, whether legislation and administrative action had
come about in the right manner, and provided there would be a clear constitutional mandate. She
said kind words about the US Supreme Court which, while powerless, exercised great authority,
and did so in a purely legal function.119 While she does not seem to have given the matter much
attention, it seems likely that she would not be overly optimistic about the capacities of courts to
either protect the political process or to function as a useful check on the exercise of political
power.120 And as noted earlier, the idea of getting judges to solve political debates or fix political
outcomes under the heading of judicial review would run into serious difficulties; and it is of
course a sobering thought that often, this is precisely why judicial review is being advocated in
the international law literature on constitutionalization.121
As an alternative, and in light of her general (neo-)republican outlook122, it is likely that
for Arendt, constitutionalism would take a more modest form, emphasizing a more or less
proceduralist outlook.123 Starting from the premise of human plurality and the crucial importance
117
Machiavelli’s virtù relates to virtuosity, in particular in performance. To Arendt, in turn, participation in politics
was largely a matter of performance, of excelling in public, and would involve such things as courage. Indeed,
freedom itself (the meaning of politics) would involve virtù. This would, tentatively, seem to establish some link
between politics and morality (courage, after all, having a certain moral quality). Hints to this effect can be found in
Arendt, What is Freedom, supra note 44, at 153.
118
See her essay on Jaspers, supra note 11: “The solidarity of mankind may well turn out to be an unbearable
burden…” (at 83).
119
See Arendt, On Revolution, supra note 34, esp. at 200.
120
A useful historical illustration of how 17th century English courts time and again sided with the King, against
Parliament, is A. Tomkins, Our Republican Constitution (2005).
121
For an overview, see J. Klabbers, ‘Straddling Law and Politics: Judicial Review in International Law’, in R.St.J.
MacDonald & D.M. Johnston (eds.), Towards World Constitutionalism (2005) 809-835.
122
Arendt is plausibly sketched as a republican of sorts in Canovan, supra note 30. For a spirited defence of
republicanism (and, not accidentally, of Machiavelli), almost amounting to a manifesto, see M. Viroli,
Republicanism (2002, Shugaar trans.)
123
This derives in part from Klabbers, ’Constitutionalism Lite’, supra note 54, and Klabbers, Straddling Law and
Politics, supra note 121.
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sentiments: morality and law being different things, their conflation under the guise of values
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of political debate and action, in combination with respect for different viewpoints and opinions,
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one imagines, advocate rights and possibilities relating to political participation. That is well
reconcilable with a rights-based focus, as for instance Jeremy Waldron has suggested: the
political process requires protection by means of political rights, and political debates are best
left to political processes. 124 Obviously, the right to vote and run for office are of relevance here,
but so are such rights as those relating to freedom of expression and association.
VI
Reading Arendt can be quite infuriating. As her critics have noticed, the writing, however
elegant, is not always lucid, and is definitely not always systematic. Indeed, as Canovan notes,
she never set out to be systematic. Writing, for Arendt, was not so much a process of
communication, but rather an attempt at understanding things and, more fundamentally, she was
suspicious of thought systems to begin with: “Authentic political thought necessarily arose, she
thought, out of real political events, and had to be rethought in response to them.”125 Indeed, it is
fully possible that her thoughts on the right to have rights, to take one example, emerged not only
from being stateless herself but from also seeing stateless or near-stateless Spanish fighters,
having helped liberate occupied France in 1944, being threatened by the new De Gaulle regime
with having to enlist in the Foreign Legion or report to mandatory labour battalions. 126 Either
way, her attitude to political thought as responsive to actual events may help explain why she
wrote, in contrast to many political theorists, a good deal about current events: these were, in the
end, the heart and soul of politics: never fully stable, always fluid.
At her best, though, Arendt’s writings are thought-provoking and immensely powerful.
She was opinionated (in the good sense of the term), extremely erudite and outspoken, and will
offer the receptive international lawyer much food for thought on a variety of topics, including
issues not or hardly covered in the present piece, from the utility of truth and reconciliation
commissions to the role of non-state actors, and from the use of force to the study of
federalism. 127 Infuriating and frustrating as her writings may on occasion be, it also has a
strangely seductive quality, in part no doubt the result of her refusal to be pigeonholed. The
124
See J. Waldron, Law and Disagreement (1999); see also his The Dignity of Legislation (1999); for a brief
overview, see Waldron, Arendt’s Constitutional Politics, supra note 61.
125
See Canovan, supra note 30, at 5.
126
She published a comment on this in German in 1944 under the title ‘Die Entrechteten und Entwürdigten’, which
is cited, in relevant part, in S. Courtine-Denamy, Three Women in Dark Times (2000, Goshgarian trans.), at 185.
127
On non-state actors, see, e.g., A.F. Lang, Jr., ‘Governance and Political Action: Hannah Arendt on Global
Political Protest’, in Lang & Williams (eds.), supra note 12, 179-198; on use of force, see, e.g., J. Klabbers, ‘Off
Limits? International Law and the Excessive Use of Force’, (2006) 7 Theoretical Inquiries in Law 59-80.
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consequence (and this is something to celebrate rather than to deplore) is that Arendt is best used
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not as a fount of wisdom, as providing the right answer to any concrete political problem, but
rather as a source for inspiration. Since Arendt did not care too much about being systematic and
perhaps even enjoyed being difficult to pigeonhole during her lifetime, there would be something
inherently paradoxical (and therewith hampering professional commentators) in trying to
systematically address her legal and political thought and turn it into an –ism. There is, to fall
back on Arendt’s own terms, something inherently paradoxical in trying to frame and
systematize the thoughts of the one thinker who advocated thinking without banisters. 128
128
This is how she herself described her attitude as an independent thinker, as quoted in Canovan, supra note 30, at
278. The German phrase ‘Denken ohne Geländer’ is sometimes also translated, somewhat less evocatively, as
‘thinking without railings’. See, e.g., U. Ludz (ed.), Hannah Arendt and Martin Heidegger: Letters 1925-1975
(2004, Shields trans.), letter no. 120, 12 March 1970, at 167.
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