Yasemin Sari
Simply following what she understands to be her method, that is, “to think what we are doing” in light of “our most recent fears,”1 the core of Hannah Arendt’s phenomenological approach to any concept that she deems to be ossified is her steadfast rethinking of such concepts. In doing so, Arendt focuses on how our moral and political conceptions not only are subject to change but also require a response to our human predicament in the world.
This conviction may alleviate some of the enigma found in Arendt’s articulation of the “right to have rights” that she invokes in addressing the practical shortcomings and the theoretical futility of a so-called conception of universal human rights. Appearing first in her 1949 “Es gibt nur ein einziges Menschenrecht” and detailed at more length in her 1951 work The Origins of Totalitarianism, the phrase was published only three years after the United Nation’s adoption of the Universal Declaration of Human Rights. Given the collective efforts of a postwar world to respond to the atrocities of the Shoah, as well as the precarity of human dignity and the protection thereof, Arendt’s term has been subject to extensive critical attention.2
While Arendt’s conception of the “right to have rights” was received as a breakthrough and was taken up by countless commentators, it still remains enigmatic. In articulating a moral foundation of the term which she deems lacking in Arendt’s own account, Seyla Benhabib argues that the “right to have rights” is based on a “moral imperative” that grounds the existence and enforcement of legal rights.3 Peg Birmingham offers an ontological foundation articulated in terms of the “event of natality” to show that it is a “political right” or a right to a political community.4 Sofia Näsström shifts the question of the justification of the right to have rights from an ontological-moral basis to that of a normative one—thereby showing that a right to have rights is grounded in a “principle of responsibility” that is linked to the democratic form of government.5 The growing literature also addresses a more practical uptake of the term with respect to political events of late twentieth and early twenty-first centuries.6 In actual effect, Chief Justice Warren’s proclamation (1957) that “the expatriate has lost the right to have rights”7 is not the only instance in which the phrase is cited in court (albeit without proper reference), as Judge Pinto de Albuquerque has also quoted Hannah Arendt in contending that “refugees have ‘the right to have rights.’”8
To be sure, this extensive attention attests to the fact that Arendt’s conception bears an inexhaustible richness by way of its theoretical underpinnings as well as its practical reflections. In the following, I will explicate the phrase through Arendt’s double-sided critique of “human rights” found in her The Origins of Totalitarianism as well as address the ontologico-political attitude of responsibility that it denotes in a manner that surpasses the context of its first appearance, namely, post–Second World War Europe.
To unpack Arendt’s famous articulation of a “right to have rights,” I will turn to her double-sided critique of “human rights” in The Origins of Totalitarianism. The first side of this critique suggests that there is something bereft in the project of universal human rights that doesn’t seem to account for the lack of protection of these “inalienable” rights. The second side addresses a metaphysical principle of “humanity” that Arendt suggests cannot capture the plurality, and thus the freedom of human beings.
A Juridical Revolution
Arendt’s criticism of universal human rights begins with her analysis of the emergence of the human being qua human being as the ground of its own dignity and equality that the 1789 Declaration of the Rights of Man and Citizen (and the subsequent French Constitution of 1793) aimed to demonstrate. The 1789 Declaration was unique in upending the political structure of the ancien régime of privilege and social hierarchy to put forth a system of rights belonging to a citizenry, and so is understood to be a juridical revolution of its own accord.9 Nevertheless, coupled with the Enlightenment ideals of the equality, liberty, and rationality of each individual, the 1789 Declaration paves the way to an ever-evolving system of political rights in order to emphasize not only the individual rights of the citizens belonging to a polity but also the right to self-determination for each nation-state. Arendt furthermore addresses the self-contradiction of the universality of human rights as granted by a nation-state in her 1963 work On Revolution. According to her analysis, this Declaration was meant to constitute the foundation of all political power, while
the new body politic was supposed to rest upon man’s natural rights, upon his rights in so far as he is nothing but a natural being, upon his right to “food, dress, and the reproduction of the species,” that is upon his right to the necessities of life. And these rights were not understood as prepolitical rights that no government and no political power had the right to touch or violate, but as the very content as well as the ultimate end of government and power.10
Understood as such, the “Rights of Man” “were meant to spell out primary positive rights, inherent in man’s nature, as distinguished from political status, and as such they tried indeed to reduce politics to nature.”11 While it was neither nature nor history that granted the human being’s inalienable rights, it was the so-called nature of the human being that became the “source of Law.”12 What Arendt’s criticism demonstrates is that while the Declaration seemingly got its force from the nature of the human being—understood as concretely established—it nevertheless ended up overriding the plurality found in the togetherness of people by transforming the individual subject of these rights to a member of a nation-state, whereby the “will” of the people substituted the plural relations instituted by human action.
To this end, Arendt’s criticism of human rights in the Origins is not merely a historical criticism; it takes on the historicity, naturality, and universality of human rights as such. This critical reception of the “rights of man” of course has been there from the moment of their inception.13 In conceiving of the “nation” as the legitimate source of authority and sovereignty, and thereby linking citizenship to one’s nationality, both iterations of the 1789 and 1948 declarations became inadequate sources for understanding and enforcing the universality of such rights in the absence of a nation-state to grant and guarantee such rights.14
The Contradictions of the Nation-State
For Arendt, the upshot of the 1789 Declaration (concretized in the 1793 French Constitution) is that political rights such as “equality before [the] law, liberty, protection of property, and national sovereignty” are the rights of citizens, the loss of which does not (or should not) entail absolute rightlessness for the human being holding human rights. A right, understood as an entitlement or a claim to be able to perform certain social and political practices, generates a duty for respect by others, and an obligation on the part of the state to protect such a right mediates the relationship between the state and the citizens.15 According to Arendt, human rights “can be granted even under conditions of fundamental rightlessness,” understood in the political sense.16 Herein lies the perplexity inherent in the conception of human rights. The human being seems to have no claim to her human rights without an appropriate citizens hip status. Where the rights of the citizens fail to concretize the so-called natural or inalienable rights of the human being, the otherwise unenforceable human rights should be put into place by revolution.17 In Arendt’s view, “revolution happens [then], in a space where civil rights are not recognizing human beings qua individuals.”18 While this point summarizes the public and relational element of rights-bearing, that the human being can have rights only in community, it should be noted, still, that the ability to revolt lies in one’s being recognized to be able to do so in the first place. This is one way to understand freedom of association.19 Simply put, human beings have to be able to appear in a space where they can be recognized to have a “right to have rights,” not only where they do not anymore possess their so-called inalienable human rights but also under circumstances where mere “humanity” becomes justification for exclusionary practices, for instance, exemplified in practices of immigration policy enforcement, and refugee camps.
Arendt takes up the import of nationality and hence the force of denationalization in demonstrating the absence of universal human rights in The Origins of Totalitarianism in the section entitled “The Decline of the Nation-State and the End of the Rights of Man.” I quote her at length:
Denationalization became a powerful weapon of totalitarian politics, and the constitutional inability of European nation-states to guarantee human rights to those who had lost nationally guaranteed rights, made it possible for the persecuting governments to impose their standard of values even upon their opponents. . . . The official SS newspaper, the Schwarze Korps, stated explicitly in 1938 that if the world was not yet convinced that the Jews were the scum of the earth, it soon would be when unidentifiable beggars, without nationality, without money, and without passports crossed their frontiers. And it is true that [this kind of] factual propaganda worked better than Goebbels’ rhetoric, not only because it established the Jews as scum of the earth, but also because the incredible plight of an ever-growing group of innocent people was like a practical demonstration of the totalitarian movements’ cynical claims that no such thing as inalienable human rights existed and that the affirmations of the democracies to the contrary were mere prejudice, hypocrisy, and cowardice in the face of the cruel majesty of a new world. The very phrase “human rights” became for all concerned—victims, prosecutors, and onlookers alike—the evidence of hopeless idealism or fumbling feeble-minded hypocrisy.20
Arendt’s point is simple, albeit prescient: (1) the weapon of denationalization coupled with mainstream propaganda promoted as a fact that the Jews were “the scum of the earth,” thereby dehumanizing them and (2) reinforced as a fact the nonexistence of these so-called human rights. Beginning in 1935, denationalization was put into effect by Hitler’s Nuremberg Laws, stripping German Jews of Reich citizenship, leaving members of the community without the protection of political rights and, most importantly, the right to belong to that community. The “loss of nationally guaranteed rights” left a population without any recourse to claim their rights, let alone any protection of such rights. The implicit premise regarding the second statement is that while human rights aimed at being agreed upon as facts of human existence—that the human being qua human being has natural rights—their becoming suspect pointed to the other extreme, where their unenforceability was seen as “evidence of hopeless idealism,” as practiced by the people who believed in them.
Arendt’s argument in the Origins gets its driving force from the factual existence of not only the extermination and internment camps but also the growing phenomenon of statelessness that people (not only Jews but also homosexuals, Roma people, and so on) faced, which became the mark of the rising totalitarianism of the mid-twentieth century. The phenomenon of statelessness stressed the impotence of universal human rights that are supposed to belong to the human being regardless of nationality. Arendt articulates the process “on the road to total domination” that makes apparent the “nakedness of the human being” as threefold: (1) “to kill the juridical person in man,” that is, to strip people off of their political rights by which they are understood to be equal to one another; (2) “the preparation of living corpses” as “the murder of the moral person in man,” that is, to make impossible human solidarity by erasing human dignity; and (3) to do away with “the differentiation of the individual, his unique identity,” that is, to make impossible the possibility of meaningful appearance in the presence of others.21 This process culminates in the deprivation of a space where “opinions [are] significant and actions effective.”22 Therefore, this threefold process coincides with that of the human being’s denial of a place in the world: (1) “the loss of home” along with the “impossibility of finding a new one,” and (2) the “loss of government protection,” so that (3) these people became “superfluous.”23 Altogether, people were denied a place in the common world and put into camps where they were neither seen nor heard.
The Paradox of Humanity and the One Human Right
The component of idealism that Arendt identifies as part of the human rights discourse stems from an idea of “humanity” that is supposed to accelerate the realization of such humanity, which should become its own ground. Such idealism on its own, however, cannot be the culprit of the unenforceability of such rights that are deemed inalienable to human existence.24 Notwithstanding, the curious point is that the loss of these individuals’ political rights went hand in hand with a loss of their “humanity” that was supposed to belong to the individual in her so-called natural state. According to the declarations of 1789 and 1948, the human being’s humanity (i.e., human dignity) is what motivates the existence of “human rights” in the first place, that is, the “rights of man,” which in turn translate into the “rights of the citizen.”25 Arendt’s argument clearly states what she calls the “paradox” of human rights: the “abstract” human being whom these rights are supposed to protect does not exist.26 As Arendt puts it, “[This new situation], in which ‘humanity’ has in effect assumed the role formerly ascribed to nature or history, would mean in this context that the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself.”27 Arendt contends that humanity as a regulative idea could not and did not in fact do this work.28
The rights of man ground the rights of the citizen, and when the latter fails, the rights of man are supposed to be enforceable by way of humanity.29 What happened before and during the Second World War, however, was the obvious failure of such logic. Arendt concludes, thus, that these people were denied their “universal human rights” by first being denied their “human” status.30 The erasure of their individual human status, in turn, became a condition of possibility of erasing the condition of “plurality” of the common world.
On this note, I turn to the well-known passage in The Origins of Totalitarianism, where Arendt’s conception of a “right to have rights” makes its appearance:
We became aware of the existence of a right to have rights (and this means to live in a framework where one is judged by one’s actions and opinions), as well as the right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation.31
To be clear, Arendt does not merely assert that this right to have rights exists (is in place)—but that “we became aware” of its existence through the loss of “the rights” of human beings afforded them by way of citizenship. It is central to her analysis of totalitarianism that with its rise, the “we” of modernity observed that “no such thing as inalienable human rights existed.”32
For Arendt, “the fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective.”33 This place is the space in which human beings can appear to one another and become equal. For Arendt, equality is artificially created in the performance of recognition of the plurality of existence in being in the presence of others. To be sure, “citizenship or membership to a commonwealth” can allow individuals to possess some rights and attain formal equality; nevertheless, such an abstraction involves a paradox as Arendt writes:
The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon the common world, loses all significance.34
The paradox lies in the fact that human rights have only been understood to be equivalent to political (in this case, juridical) rights. Here, however, my claim is that Arendt only identifies a paradox, and that she does not endorse it as an all-embracing impasse to our thinking about rights: instead her articulation of a “right to have rights” shifts the human rights discourse in order to point to the “one human right” embodied in the performative aspect of an Arendtian politics.
While Arendt further argues that the right to have rights can only be “guaranteed by humanity itself,” she does not endorse a metaphysical principle of humanity, but rather, understands humanity as the concrete appearance of human togetherness (in plurality and equality). On my view, this principle of humanity pertains to a decision of appearing together. Said in a different idiom, the “right to have rights” is a performative statement in that it does what it says and unconditionally so—not because it is absolute, but because it can be understood in an extra-institutional sense.35 Every attempt to exclude an individual from belonging to a community is the absence of recognition of a right to have rights, and this can be experienced by noncitizens and citizens alike.36
Humanity understood as a human condition demonstrates the material aspect of human plurality as a fact of human existence, which embraces “givenness” as valuable. Such singular (and plural) “givenness” in turn becomes a step in articulating the un-givenness of the individual, who appears in the political realm as a “who.” Contrary to the “artificial equality” constructed by human beings in their plurality, the givenness of the human being—the differences that individuals have—does not have the inherent force to equalize these differences.
The recognition of one’s “right to have rights” is not necessitated by belonging to a political community in terms of membership based on “citizenship,” but on the condition of having the possibility to create such a community.37 One’s “right to have rights” in this sense allows for an extra legal articulation of this right, and therefore, the condition of citizenry—which is the means of belonging to a democratic discourse in current terms—does not restrict the recognition of one’s “right to have rights.” That is, one’s political identity, one’s whoness can only appear insofar as one is recognized to have a right to have rights. In turn, the force of a “right to have rights” resides not in its capacity to be constitutionalized but in its capacity to be universally performed anew in each instance.
Notes
1 Hannah Arendt, The Human Condition (Chicago, IL: The University of Chicago Press, 1998), 5.
2 This chapter is adapted and repeats many of the same arguments as in my “An Arendtian Recognitive Politics: The Right to Have Rights as a Performance of Visibility,” Philosophy Today 61, no. 3 (2017): 709–35.
3 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004).
4 Peg Birmingham, Hannah Arendt and Human Rights: The Predicament of Common Responsibility (Bloomington, IN: Indiana University Press, 2006).
5 Sofia Näsström, “The Right to have Rights: Democratic, not Political,” Political Theory 32, no. 5 (2014): 543–68.
6 See Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (New York: Oxford University Press, 2012); Stefan Heuser, “Is There a Right to Have Rights? The Case of the Right of Asylum,” Ethical Theory and Moral Practice 11, no. 1 (2008): 3–13; Asher Lazarus Hirsh and Nathan Bell, “The Right to Have Rights as a Right to Enter: Addressing a Lacuna in the International Refugee Protection Regime,” Human Rights Review 18, no. 4 (2017): 417–37.
7 Trop v. Dulles, n. 34: https://www.law.cornell.edu/supremecourt/text/356/86.
8 Hirsi Jamaa and Others v. Italy: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-109231%22]}.
9 See George Lefebvre’s The Coming of the French Revolution (Princeton, NJ: Princeton University Press, 1975). While the 1789 Declaration puts forth “men” to be “born equal in rights,” there is no right to equality that underlines the declaration, and intentionally so. The equality among citizens is also deceptively exclusive, perhaps as problematic as the Athenian democracy (by lot) that rested on a distinction between the citizen and the noncitizen premised upon slavery.
10 Hannah Arendt, On Revolution (Penguin Books, 1990), 109, my emphasis.
11 Ibid., 108–9. Arendt contrasts this to the US Bill of Rights, since the Bill “was meant to institute permanent restraining controls upon all political power, and hence presupposed the existence of a body politic and the functioning of political power” (Ibid.).
12 Hannah Arendt, The Origins of Totalitarianism (Benediction Classics, 2009), 290.
13 Edmund Burke, Reflections on the French Revolution (Everyman’s Library, 1790).
14 This equivocation is pronounced in the 1793 Constitution which replaces Article 1 of the 1789 Declaration stating “men are born and remain free and equal in rights” with Article 122 stating, “The constitution guarantees to all Frenchmen equality, liberty, security, property, the public debt, free exercise of religion, general instruction, public assistance, absolute liberty of the press, the right of petition, the right to hold popular assemblies, and the enjoyment of all the rights of man.” (Retrieved https://oll.libertyfund.org/pages/1793-french-republic-constitution-of-1793). In this sense, in the absence of a nation-state to grant, respect, and protect such rights, the claim to the rights proposed in the declarations does not find a proper addressee. This is especially poignant when we think of Article 28 of the UDHR: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” (Retrieved from https://www.un.org/en/universal-declaration-human-rights/).
15 As Benhabib explains the second usage of “right” in the “right to have rights,” “in this [juridico-civil] usage, “rights” suggests a triangular relationship between the person who is entitled to rights, others upon whom this obligation creates a duty, and the protection of this rights claim and its enforcement through some established legal organ, most commonly the state and its apparatus” (Benhabib, The Rights of Others, 57).
16 Arendt, Origins, 295.
17 Ibid.
18 Ibid., 293.
19 If one is understood to be merely eliminable as soon as one decides to revolt, then the revolt would merely entail mass destruction through possible violence. Examples from mid-twentieth century involve camp and ghetto uprisings during the Holocaust, especially the Warsaw ghetto uprising which left few survivors.
20 Arendt, Origins, 269, my emphasis.
21 Ibid., 447–53.
22 Ibid., 296.
23 Ibid., 293–96.
24 Not unlike Hegel, Arendt is adamant in emphasizing the fecundity of the abstract universality of “concepts,” opting for a concrete articulation of what we u nderstand to be abstract ideals. Unlike Hegel, however, she does not read such concretization as the teleological unfolding of history, but as a thoroughly human effort brought to fruition in human action altogether.
25 Ibid., 293.
26 Ibid., 291.
27 Ibid., 298.
28 Ibid.
29 Cf. Ibid., 300.
30 Ibid., 296. Cf. Dana R. Villa, Politics, Philosophy, Terror: Essays on the Thought of Hannah Arendt (Princeton, NJ: Princeton University Press, 1999), 186.
31 Ibid., 296–97, my emphasis.
32 Ibid., 269.
33 Ibid., 296.
34 Ibid., my emphasis.
35 See, for example, Judith Butler, Excitable Speech: A Politics of the Performative (London and New York: Routledge, 1997), Notes toward a Performative Theory of Assembly (Cambridge, MA: Harvard University Press, 2015); Bonnie Honig, “Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic,” The American Political Science Review 85, no. 1 (March 1991): 97–113.
36 As I have adumbrated in the article from which this analysis is drawn, the Black Liv es Matter movement in the United States is an example of such absence of recognition of the right to have rights of black citizens.
37 See, for example Lida Maxwell, “. . . to Have . . . ,” Chapter 2 in The Right to Have Rights, ed. Stephanie DeGooyer et al. (London: Verso, 2018), 45–58.