Nomos and Lex, Constitutionalism and Totalitarianism in Arendt’s Thought
Vincent Lefebve
Translated by Zachary Fouchard
Addressing the question of law in Hannah Arendt’s thought requires an initial point of clarification, since it is often argued that Arendt’s discussions of the law are superficial or anecdotal. On the contrary, considerations of the law and legal institutions are often present in Arendt’s work, and the Arendtian manner of considering these phenomena is itself original. She in fact re-appropriates explicitly legal objects in a decentralized manner. It is not so much a matter of capturing the essence of law as one of seeing law and politics as separate but interconnected spheres of human activity. For Arendt, the link between law and politics is always considered in a nuanced way, without postulating a strict separation between these two spheres of human activity or the subordination of the one to the other.1
In order to discuss the phenomenon of legislation, Arendt had to propose a coherent theory that recognizes the fundamentally political nature of constitutions and laws that marks the intertwining of the spheres of law and politics. Interested in two paradigms of law in Greek and Roman antiquity, Arendt places a particularly human faculty at the center of her thought: the faculty of making promises and keeping them. Arendt’s interest in legal phenomena is also expressed in her concept of revolution, the latter being inseparable, as I will show, from her theory of the constitution. Finally, one cannot ignore the centrality of the theory of totalitarianism in Arendt’s political—and legal—thought: the concept of totalitarian law that she brings to light in The Origins of Totalitarianism in effect allows her to establish, in depth, innovative avenues for thinking about law.
Legislation: The Paradigms of Antiquity
Greco-Roman antiquity, as reconstructed by Arendt, is subdivided into two great paradigms of law: the Greek nomos and the Roman lex.2 Arendt uses these models to highlight two contradictory conceptions of the relationship between law and politics. On the one hand, the Greek model of nomos signals a strict separation between the spheres of law and politics. In the Greek conception, the law is pre-political, providing a stable framework within which the actions of men occur. On the other hand, the Roman model of lex introduces legislative activities into the political field. Law is no longer pre-political, but is the very content of political action.
These two models refer to a demarcation between different modes of human activity upon which the political thought of Arendt rests.3 In order “to think what we are doing,”4 Arendt proposes in The Human Condition to distinguish the domains of labor, work, and action. Following Aristotle, she insists on the elements that enable us to differentiate between poiēsis and praxis, and although she does not in any way devalue the category of work, she accords to action a very special dignity.
Thus, Arendt sheds light on the fact that in the Greek conception, law (nomos) is related not to the sphere of action but to that of fabrication.5 In the Greek world, law is the work of a skilled craftsman, the nomethete; it is not the result of deliberation. In so doing, the Greeks deny legislation any direct political significance. They nevertheless recognize it to be a determining factor for the emergence of politics, and it is an instrument for constituting and maintaining a sustainable political space. According to Arendt’s interpretation, which is questionable from a strictly historical point of view,6 the eminent function of nomos is to offer a permanent structure in which political action can be housed.7 The nomoi provide the “walls” of the polis, allowing men to appear in their singularity and to accomplish great acts accompanied by eloquent words without immediately falling into the oblivion within which all things human naturally fall.
But this does not imply that we find in the Greeks, even if only in a germinal state8 what constitutes, for Arendt, the genius of Roman politics, which was to invent a new concept of specifically political (and not pre-political) legislation, the lex as well as the experience of foundation.9 With the notion of lex was born a conception of law that was above all relational. The comparison between lex and nomos emphasizes this aspect of law in its Roman version. Lex presupposes a close link, an alliance, a bridge between various partners.10
Reflections on war and the origins of our Western conception of international relations, as proposed by Arendt in her “Introduction into Politics,” is decisive for grasping the stakes of this opposition:11 whereas an alliance with the defeated enemy was not within the realm of possibilities for the Greeks, the Romans on the contrary succeeded in overcoming wars of annihilation and the absolute sterility that they imply for the political field. By means of pacts reached with the defeated enemy, the no-man’s land that before the hostilities kept belligerent groups isolated from one another was transformed by the Romans into a relational space that at once separated and connected old enemies.12 A world was thus created. This concept of politics, which originated in the form of foreign politics, and which is inseparable from an eminently relational conception of law, still governs our way of thinking about what is strictly speaking a legal relationship, both in private and in public law.
The difference in Arendt between the Greeks and the Romans regarding this problem of the law thus turns to the advantage of Rome rather than Athens. The precedence given to the concept of lex is in reality a result of the place that the faculty of making promises and keeping them plays in politics. Indeed, although both the Greek nomos and the Roman lex have the effect of stabilizing human affairs, the superiority of lex stems from the fact that it makes it possible to secure the field of action in an internal and immanent way.13 This is possible because it rests on a faculty—the promise—that belongs to the field of action and that consequently absolutely depends on the human condition of plurality, that is to say, on the political condition par excellence.14
This internal character of promise-making is decisive since it allows for the possibility of confronting the frailty of human affairs,15 the various infirmities of action, and especially its fundamental unpredictability, using a faculty that is situated at the heart of the field of action and obeys the various “laws” that govern and structure it. In a word, it is a question of saving human freedom without misrepresenting it, that is to say, without making it depend on some allegedly higher faculty. Indeed, by basing the integrity of the political domain on an activity outside of it, work, the Greeks introduced into human freedom the figure of violence intrinsic to all fabrication.16
Rehabilitating the central role played by the promise in our legal system is, for Arendt, indissociable from another theoretical positioning. Arendt constantly thinks against the tradition, a tradition that according to her is at the origin of a series of fatal equivalences between politics and domination, power and violence, law and command. These equivalences constitute at once the legacy of certain inaugural gestures laid down by the Socratic school—especially by Plato17 —and a Judeo-Christian heritage in which law has always been conceived in the image of a command demanding obedience.18
Arendt contrasts this tradition with another tradition, suggesting that we look not to philosophers and their theories but rather to our most fundamental political experiences. Making regular use of the model of the polis to shape her new conception of politics, it would seem that the problem of law, and especially that of legislation, is what prompts her to favor the Roman paradigm rather than the Greek paradigm.
On Revolution : Arendt’s Constitutionalism
Arendt’s interest in legal phenomena is also expressed in the concept of revolution that she developed, which constitutes a veritable constitutional theory.19 In On Revolution, Arendt compares the two great revolutions of the eighteenth century, the French and American Revolutions, and attempts to develop a republican model of revolution notably characterized by the place occupied by the law and its institutions.
The core of Arendt’s constitutional theory rests on several conceptual pillars: first, an original understanding of the principle of the separation of powers; second, a rehabilitation of the Roman notion of authority as an indispensable complement to power; and finally, a conception of foundation as the historical discovery, in the course of revolutionary action itself, of a set of principles destined to give consistency to and regulate the newly founded political body.
For the first, Arendt offers a new interpretation of Montesquieu and his conception of the separation of powers. She insists on what in contemporary constitutional law is called the vertical dimension of the separation of powers.20 Her argument is twofold: of course, the separation of powers must play itself out on a horizontal plane, and legislative, executive, and judicial powers must be arranged in such a way that they control each other, but second, this was not the primary problem preoccupying the founders of the American republic. Their concern was not to limit power, but rather to find a way to combine thirteen “sovereign” republics into a single federal republic.21 The American revolutionaries were not drawn to the principle of the separation of powers, as we are often told, because of its limiting ability. The goal was not to limit—in the sense of diminishing—the powers of the union and its parts, but rather to introduce a mechanism at the heart of government that strengthens the different power centers.22 In other words, for Arendt, the constitution of the United States and the federal idea upon which it rests created the institutional conditions for a non-sovereign politics.23
As to the second pillar, in her discussion of the notion of law, Arendt again appeals to the Romans when evoking the capital distinction in their eyes between power and authority. The vivid experience of power that rests on pacts and promises—an experience of Roman origin but rediscovered in America during the colonial and even precolonial period (e.g., Mayflower Compact)—could certainly lead to revolution since it was directly able to ground the constitution in the power of the people. But this new concept of power could not at the same time provide a source of legitimation for the constitution of the republic: How could the constitution and newly adopted laws bind minorities as well as future generations?
To the power that arises among human beings engaged in action, it was therefore necessary to add a complement. To face this task, the American founding fathers took judicious inspiration from the Roman precedent and from the concept of authority upon which it rests. Roman authority presupposed a concrete institution charged with prolonging or increasing the moment of foundation (Arendt, here, draws on the etymology of the word auctoritas, which is augere, that is to say, to increase, or grow24 ). One of the major innovations of the founding fathers, aside from their reinterpretation of the concept of the separation of powers inherited from Montesquieu, was to transfer the authority of the Roman Senate, whose function was political, to the Supreme Court of the United States, which assumes a legal and nonpolitical function and intervenes by means of interpretations, not opinions.25 The role of the Supreme Court in interpreting the Constitution and its amendments is thus to connect the present of the republic with its founding past, thus prolonging and increasing the moment of foundation, hearkening back to the Roman ideal.
For the third pillar, Arendt notes that, despite the considerable differences that separate them, the two great modern revolutions, French and American, have both faced the difficult problem of an absolute or ground for the political sphere.26 This demonstrates that this problem is inherent to the Western concept of law, a concept of Judeo-Christian origin that equates law with the expression of a command (an equivalence that is found neither in Greek nomos nor in Roman lex). For Arendt, it is unnecessary to introduce an absolute to break the vicious cycle in which everything new seems to be caught. In fact, what saves the beginning is that it brings its own principle with it into the world. Beginning and principle are more than intimately linked; they are contemporaneous:
The absolute from which the beginning is to derive its own validity and which must save it, as it were, from its inherent arbitrariness is the principle which, together with it, makes its appearance in the world. The way the beginner starts whatever he intends to do lays down the law of action for those who have joined him in order to partake in the enterprise and bring about its accomplishment. As such, the principle inspires the deeds that are to follow and remains apparent as long as the action lasts.27
What Arendt wishes to point out here, in an extremely condensed manner, is that action, at the same time as it unfolds, reveals its own principle. Many languages suggest such a solution by deriving the word “principle” from the Latin principium, which means “beginning”: “In principio creavit Deus caelum et terram” (In the beginning God created heaven and earth), as one reads in the Vulgate Bible.28
Arendt endeavors to identify the principle, or rather the double principle, that made its appearance at the same time as the American Revolution, namely, “the interconnected principle of mutual promise and common deliberation.”29 Therein lies the “unforgettable story” and the “unique lesson” of the American Revolution: it did not “break out” but, on the contrary, was conducted by men and women after careful reflection and deliberation “on the strength of mutual pledges”; the political energy necessary for its accomplishment came not from the “strength of one architect” but from the “power of the many.”30 Learning the lessons from the American Revolution, Alexander Hamilton was able to affirm that men were “capable . . . of establishing good government from reflection and choice.” He knew—not theoretically but because he had lived it—that they were not “forever destined to depend for their political constitutions on accident and force.”31
This leads us to the theme of foundation central to Arendt’s arguments. A foundation rests on the human capacity to bring new ideas into the world and, moreover, echoes their desire to keep these novelties alive over time as well as to build, by means of the law, a world that will survive them and welcome future generations.
Totalitarianism: The Law of Movement
Arendt’s interpretation of totalitarianism is also decisive for grasping the originality of her legal thought. Her theory of action, as well as the republican model that her work establishes—not to mention, to a certain degree, her powerful critique of human rights, which lies outside the scope of present considerations32 —must in fact be understood as responses to the major political challenge of the twentieth century: the challenge addressed to our common political concepts and categories in the face of the advent of totalitarianism.
In The Origins of Totalitarianism, Arendt theorized what in her view constituted the central political phenomenon of her time, namely, the emergence of unprecedented political regimes, Nazi and Stalinist, which she qualifies as totalitarian. In her work on totalitarianism, the notion of law is almost always present.33 Totalitarianism does not merely defy the essential legal values on which constitutional regimes rest, but it develops a concurrent conception of legality that prompts Arendt to see in totalitarianism not another arbitrary regime like tyranny or despotism, but a regime of a new type that, in its relation to legality, can be defined by reference to two complementary tendencies.
On the one hand, totalitarianism is not a regime devoid of any reference to the notion of law. On the contrary, it claims to realize on earth a certain form of very specific legality identified with the fulfillment on earth of the so-called laws of history or of nature. On the other hand, totalitarianism presupposes a challenge to the secular conception of law understood as a stabilizing factor of human affairs, totalitarian “law” being above all a law of movement:
When the Nazis talked about the law of nature or when the Bolsheviks talked about the law of history, neither nature nor history is any longer the stabilizing source of authority for the actions of mortal men; they are movements in themselves.34
The totalitarian system thus constitutes the negation of a usual conception of law—immersed in historical realities as different as the Greek nomos, the Roman lex, or even the Hebraic Torah—in which laws are conceived as means for stabilizing human societies. Indeed, civilization, which Arendt defines as “the man-made artifact to house successive generations,” cannot survive without a stable framework that can account for change.35 Far from opposing the themes of novelty and permanence—an opposition that on the political chessboard refers back to the confrontation between conservatives and progressives—Arendt seeks to highlight their affinities. In other words, Arendt never treats stability as a value in and of itself. On the contrary, she insists on the supportive role that laws, as conceived within constitutional regimes, assume in terms of acting as a prerequisite for the occurrence of novelty, in terms of the firm ground supporting the miracle of human freedom.
The omnipresent character of the idea of movement at the heart of totalitarianism is a symptom of its rejection of the very idea of novelty. Under totalitarian regimes, this idea is completely forbidden on two fronts: on the one hand, totalitarian law, the law of movement, of history or of nature, is not a new law, the fruit of the concerted action of men, but is rather identified with an eternal law that has always and will always govern human becoming; on the other hand, in order to allow for free deployment of the forces that they support, totalitarian regimes must paralyze the action of men and annihilate the source of their freedom, their spontaneity, which is achieved at the highest and most fatal degree in concentration camps.36
In order to respond to the chaos and destruction of the world caused by the advent of totalitarian regimes, which made terror the essence of government and sought to combat human freedom in all its forms, Arendt investigates the conditions that make the beginning and the perpetuation of a non-totalitarian world possible. Among these conditions, it is certainly necessary to include law, or at least a certain conception of law as a relational space, as an intermediary at once connecting and separating human beings, peoples, and generations.
Arendt invites us to consider the world of law and legal institutions as a stabilizing element of the first order, without which our political societies could neither establish nor sustain themselves. For Arendt, law is never a simple exterior constraint on politics, but rather the condition of its existence. The law contains political freedom in two ways: on the one hand, it constitutes a boundary that limits freedom; on the other hand, it offers a stable framework for human action within which freedom can become a living reality.
Notes
1 Christian Volk, Arendtian Constitutionalism: Law, Politics and the Order of Freedom (Oxford: Hart Publishing, 2015), 173; Vincent Lefebve, “La théorie constitutionnelle de Hannah Arendt ou l’articulation entre droit et politique à l’épreuve du phénomène révolutionnaire,” Jurisdoctoria: Revue doctorale de droit public comparé et de théorie juridique 12 (2015): 46–70, 46; Vincent Lefebve, Politique des limites, limites de la politique. La place du droit dans la pensée de Hannah Arendt (Brussels: Éditions de l’Université de Bruxelles, 2016), 261.
2 Hannah Arendt, The Promise of Politics, ed. J. Kohn (New York: Schocken, 2005), 178–91; R. T. Tsao, “Arendt against Athens: Rereading the Human Condition,” Political Theory 30 (2002): 97–123; T. Hol, “Citizenship, Public Realm and Adjudication in the Horizontal Society. An Analysis Based on the Work of Hannah Arendt,” in Multilevel Governance in Enforcement and Adjudication, ed. A. Van Hoek et al. (Oxford: Intersentia, 2006), 241–61; D. Klusmeyer, “Hannah Arendt’s Case for Federalism,” Publius: The Journal of Federalism 40, no. 1 (2010): 31–58; M. A. Wilkinson, “Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of ‘The Tradition,’” in Hannah Arendt and the Law, ed. M. Goldoni and C. McCorkindale (Oxford: Hart Publishing, 2012), 35–61, 53; P. Owens, “‘How Dangerous It Can Be to Be Innocent’: War and the Law in the Thought of Hannah Arendt,” in Hannah Arendt and the Law, 251–69, 257; F. Ciaramelli, “Hannah Arendt et la portée politique de la loi,” Cités 67 (2016): 53–64.
3 Hannah Arendt, The Human Condition (Chicago, IL: The University of Chicago Press, 1998).
4 Ibid., 5.
5 Ibid., 194–95.
6 Keith Breen, “Law Beyond Command? An Evaluation of Arendt’s Understanding of Law,” in Hannah Arendt and the Law, 15–34, 24: “It is better to understand h er discussion on Greek and Roman law less as an accurate historical account and more as an extended reflection on the nature of law.”
7 Ibid.: “The laws, like the wall around the city, were not results of action but products of making. Before men begin to act a definite space had to be secured and a structure built where all subsequent actions could take place, the space being the public realm of the polis and its structure the law; legislator and architect belonged in the same category.”
8 Cornelius Castoriadis, Ce qui fait la Grèce, 1. D’Homère à Héraclite. Séminaires 1982-1983. La création humaine II (Paris: Seuil, 2004); C. Castoriadis, Ce qui fait la Grèce, 2. La cité et les lois. Séminaires 1983-1984. La création humaine III (Paris: Seuil, 2008).
9 Arendt, Human Condition, 195.
10 Hannah Arendt, Between Past and Future (New York: Penguin Books, 2006), 179.
11 Owens, “‘How Dangerous,” M. Revault d’Allonnes, “Hannah Arendt, le mal banal, la guerre totale,” Espaces Temps 71 (1999): 69–83.
12 Arendt, Promise of Politics, 178.
13 Arendt, Human Condition, 236–37; Jacques Taminiaux, “Performativité et grécomanie?,” Revue internationale de philosophie 53 (1999): 191–205, 196–98; A. Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2008), 238.
14 Arendt, Human Condition, 7–8.
15 Ibid., 188.
16 Arendt, Promise of Politics, 181; Arendt, Between Past and Future, 111–12.
17 Arendt, Promise of Politics, 220.
18 Arendt, On Revolution (New York: Penguin, 2006), 181–82.
19 Robert Burns, “Hannah Arendt’s Constitutional Thought,” in Amor Mundi. Explorations in the Faith and Thought of Hannah Arendt, ed. J. W. Bernauer (Dordrecht: Martinus Nijhoff Publishers, 1987), 157–85; P. W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (New Haven, CT: Yale University Press, 1997), 52–59; Jeremy Waldron, “Arendt’s Constitutional Politics,” in The Cambridge Companion to Hannah Arendt, ed. D. R. Villa (Cambridge: Cambridge University Press, 2000), 201–19; Wilkinson, “Between Freedom and Law”; Volk, Arendtian Constitutionalism.
20 O. Beaud, “La doctrine constitutionnelle américaine connaît-elle une théorie de la fédération?,” in Le droit dans la culture américaine, ed. P. Raynaud and E. Zoller (Paris: Panthéon Assas, 2001), 21–39, 35.
21 Arendt, On Revolution, 143.
22 Ibid., 141–45.
23 Ibid., 144; A. Arato and J. Cohen, “Banishing the Sovereign? Internal and External Sovereignty in Arendt,” Constellations 16 (2009): 307–30; J.-C. Poizat, “ L’invention d’une politique non souveraine: Arendt et l’espoir européen ,” in Hannah Arendt. Crises de l’État-nation, ed. A. Kupiec, et al. (Paris: Sens & Tonka, 2007), 254–61.
24 Arendt, On Revolution, 111–12.
25 Ibid., 192.
26 Ibid., 174.
27 Ibid., 205.
28 Genesis, 1:1.
29 Arendt, On Revolution, 206.
30 Ibid.
31 The Federalist Papers, n° 1.
32 I refer the reader to developments I have proposed in a book published in 2016 entirely devoted to the legal thinking of Arendt: Lefebve, Politique des limites, limites de la politique, (Brussels: Université Bruxelles, 2016): 131–64.
33 Claude Lefort, La complication. Retour sur le communism (Paris: Fayard, 1999), 193; Jacques Taminiaux, “The Philosophical Stakes in Arendt’s Genealogy of Totalitarianism,” Social Research 69 (2002): 423–46, 440; P. Nemo, Histoire des idées politiques aux Temps modernes et contemporains (Paris: PUF, 2002), 1349–59; E. Pisier (with F. Châtelet, O. Duhamel et al.), Histoire des idées politiques (Paris: PUF, 2004), 482–88; Ciaramelli, “Hannah Arendt.”
34 Arendt, Human Condition, 463.
35 Hannah Arendt, “Civil Disobedience,” in Crises of the Republic (New York: Harcourt Brace & Company, 1972), 49–102, 79.
36 Arendt, Human Condition, 465–68.