When a person holds a right, they are entitled to a specific good or experience. They have a claim to a tangible object or objective: to health care, to shelter, to an attorney, to remain silent. What, then, was Hannah Arendt referring to when she spoke of a “right to have rights”? This, it turns out, is an extremely vexing question. The first right in Arendt’s phrase appears to be less a right that can be possessed than a means by which to possess a right—a kind of “super right” or what Frank Michelman calls an “acquisition right.”1 Why would Arendt, who was famously critical of the humanist framework of human rights, promote the idea of such a right?
In the autumn of 1949, amidst celebration of the Universal Declaration of Human Rights, newly proclaimed by the recently formed United Nations, Arendt averred that human rights offer no special protection for individuals who have lost the institutional protection of a nation-state.2 Human rights might seem to operate without the need for special memberships such as citizenship, but as millions of refugees and stateless persons had discovered in the postwar world, these rights were functionally void without a country to enforce them. Arendt concluded that in order for human rights to be anything more than citizenship rights, they require an additional right as their condition. This right she calls the “right to have rights.” “We become aware of the existence of a right to have rights,” she posits,
(and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community only when millions of people emerge who had lost and could not regain these rights because of the new global political situation.3
The “right to have rights” is distinguished by two critical features. It is a supplemental right and, more cryptically, it is a lost right. It is a right that provides the framework for human rights in general (and is thus separate from them), but it is also a right that comes into existence only when it has already disappeared, “only when millions of people emerge who [have lost it].” The “right to have rights” is therefore doubly paradoxical: it is a right that emerges as a precondition for human rights, but it is also a right that comes into view “only” with the realization that human rights have already failed. It is therefore what I would call an a posteriori right, a “postright” that makes itself known only when the possibility of its arrival has already disappeared.4
In what sense, then, is it possible to understand the first right in the “right to have rights” as separate from rights that accrue only to citizens of nation-states? Does the doubling of “right” in Arendt’s phrase merely restate and reinforce the tautological relationship between citizen and universal rights that Arendt identifies in her critique of human rights? Or is Arendt proposing the “right to have rights” as some sort of solution to a conceptual impasse between human and citizen rights, with the first “right” of her formulation providing a new vision of rights and political order? Indeed, how can Arendt speak of a right for millions of stateless persons to belong to a political community without, at the same time, claiming a transcendental source for rights, precisely the kind of right she wearily critiqued in her analysis of human rights?
Much scholarly work has been done to try to straighten out these inconsistencies.5 In what follows, however, I want to attend less to the philosophical quandaries of the “right to have rights” than to its function within the ninth chapter of The Origins of Totalitarianism. This chapter marked the second, and final, time that Arendt used the phrase. The first usage occurs in an essay written two years previously for the Modern Review. In this earlier article, Arendt describes the “right to have rights” as a right that might be recovered. By the time of Origins, however, she betrays a new skepticism about the ability of any right to repair the damage caused by the disintegration of the nation-state system in the postwar period. The theoretical aporia of the “right to have rights” is actualized in the plight of the stateless refugee whose situation reveals that the bare right to other rights carries little or no weight with any nation that has forced that person into this predicament. The citizens of nation-states can take the privilege of the “right to have rights” for granted, but those who have been stripped of their citizenship know that such a right is not enough to recover their loss.
A focus on the “right to have rights” in its final appearance in Arendt’s work compels us, I think, to revise certain scholarly understandings of the “right to have rights” as a moral foundation or anarchic agent. Yet as much as I want to complicate a phrase that people have taken as self-evidently meaningful, I also want to show how Arendt stops short of the conservative cynicism of Edmund Burke, who takes this paradox as proof that no universal human rights can exist outside of the rights of the citizens of particular countries. I argue that even if the “right to have rights” has proved impossible to put into practice as a coherent model of revolutionary change, for Arendt it is a powerful historical diagnostic tool, a way of focusing on the acts of dispossession and disen-franchisement that are inevitable corollaries of the rise of human rights.
By and large, there have been two dominant critical interpretations of the “right to have rights.” The first is what might be called the normative interpretation. Normative readings of the “right to have rights,” such as the one made famous by political scientist Seyla Benhabib, parse the first “right” in the phrase as a moral (rather than legal) foundation for the possibility of human rights. This is a right that tells us that we ought to have legal rights, such as a right to water or a right to health care, and that this right is universal for all human beings. The second interpretation of the “right to have rights” is to understand it as a performative right. This interpretation, made popular by theorists such as Judith Butler, looks to the fundamental groundlessness of the first right, its lack of authority or substantiation in law, to act as the catalyst for the invention of new rights. A claim to a “right to have rights” is made, for example, when bodies appear in assembly to call into question an exclusionary hegemonic practice.
Benhabib is the most important proponent of the normative reading of the “right to have rights.” The first right in the phrase, she argues, is a moral claim in the Kantian sense of the regulative ideal. It is premised on “the proposition that we ought to consider each human being qua human being as a person entitled to basic human rights and not because they are a national or a citizen.”6 While Benhabib acknowledges that Arendt does not explicitly offer a philosophical justification in her writing for a normative foundation in her political philosophy, she nevertheless asserts that Arendt’s position presupposes an “anthropological universalism” in which the human condition is one of equality of all members of the species.7 The “right to have rights,” she says, is built on the idea of humanity: “The first use of the term right [in the phrase] is addressed to humanity as such and enjoins us to recognize membership in some human group.”8
Benhabib’s interpretation of the “right to have rights” produces several ambiguities, however. Who is making the claim of a “right to have rights” and who is recognizing this claim? In response to this question, Benhabib adopts the philosophical language of deconstruction, suggesting that “the identity of the other(s) to whom the claim to be recognized as a rights-bearing person is addressed remains open and indeterminate.”9 Despite the openness of the recipient of the rights claim presented here, elsewhere Benhabib credits the power of realizing and enforcing the moral foundation of the “right to have rights” to international institutions and national and extranational legal institutions, a practice she dubs, in homage to Jacques Derrida, “democratic iteration.”10 Over time, and through repetition, national and international institutions will progressively come to safeguard rights for individuals. This progression in Benhabib’s interpretation, however, is somewhat forced. Derrida argues that “iteration” is the capacity for a citation or repetition to go astray. In keeping with the nondirectionality inherent to the word “astray,” he does not assign a positive or negative value to this movement.11 Benhabib, by contrast, outlines what we must think of as an affirmative deconstruction. She believes that certain ambiguously conceived cosmopolitan bodies (“public bodies of legislatives” and “weak publics of civil society associations and the media”) will increasingly come to act in the best interest of stateless persons and refugees and that contemporary institutions, particularly legal ones, will have ethical ends.
Benhabib is something of an optimist, to say the least.12 In her interpretation of the “right to have rights,” the two rights are easily divided. The singular “right” and the plural “rights” belong to different orders of existence. The first right is a moral entitlement based in human nature, while the latter rights are the legally recognized entitlements of citizens. The repetition of right in the phrase becomes merely a rhetorical flourish for “a right to belong to some kind of organized community,” “the right to belong to humanity,” or “the right of men to citizenship.” Benhabib presents the “right to have rights” as an incontestable sovereign entitlement already possessed by all human beings who merely need to clothe it in the institutions of law. She uncovers an implied normative foundation that allows the right to serve a function, if not as a legal one then as a moral one. With this interpretation, we have not gotten beyond Arendt’s paradox. In hastening to ground the right to citizenship in the quality of being human, Benhabib roots it in precisely the form that Arendt has not only shown is by itself incapable of generating any rights, but has also critiqued as a monstrous evasion of the plurality that is the condition of politics. For Arendt, appeals to human nature as a ground of rights amount to a naive or ideological avoidance of the difficult task of figuring out how to live together according to rules of justice.
The other dominant understanding of the “right to have rights” is an interpretation that takes the formulation’s weakness, its lack of authority, as the very place—or nonplace—of political possibility. It is the phrase’s groundlessness, says Étienne Balibar, that makes the invention of new rights possible: “[Arendt] finds a means of lodging a paradoxical principle of anarchy—of “nonpower” or the contingency of authority—at the very heart of arche, or the authority of the political.”13 Another way of putting this is that the “right to have rights” is a performative right, a right brought into being through the very statement of articulating it. Performativity, a theory advanced in the 1950s by the linguist J. L. Austin, is the linguistic power of language to bring into existence a new set of effects or a new situation. Classic examples of performative utterances include: “I now declare you man and wife,” or “I hereby christen this boat …” Performativity is useful for thinking about the problem of authority with the “right to have rights.” Not only does it capture what is effected by the utterance of “right to have rights,” which is to posit a right to community from a place where there is none, it also suggests why Arendt may have spent so little space explaining its existence. Judith Butler, for example, suggests that “Arendt is establishing through her very claim the right to have rights, and there is no ground for this claim outside the claim itself.”14 Simply by saying the phrase at the end of her chapter she brings its existence into reality.
While I do not fundamentally disagree with performative interpretations of the “right to have rights,” I find these readings, like the normative reading, too forcefully affirmative. The performative emphasis on the groundlessness of new rights must still reckon with the full significance of the phrase’s weakness in Arendt’s analysis. The performance of a right to membership in a community requires an audience: it needs an existing community that will recognize and validate its claim of belonging. In the absence of such an audience, a rights claim is incoherent, it is noise, an action without reception. It can be performed, certainly (as it has been performed countless times and in different configurations by rights claimants the world over), but to be successful it must be more than a repeated claim: it must be recognized by an external power, such as a nation-state. In 2014, for example, residents of Detroit, Michigan filed a lawsuit against the city government after it shut off running water for thousands of people unable to pay their water bill. The judge ruled against those filing the suit, arguing that although “water is a necessary ingredient to sustaining life,” there is no “enforceable right” to water. In response, the residents called on representatives of the United Nations to intercede, claiming their right to water as a human right.15 Arendt would undoubtedly recognize the polemical value of this claim for human rights. But while the claim certainly garnered publicity for the residents’ cause, it had no force to produce a right to water in US law. The appeal to human rights in this case merely reinforces the lack of enforceable right in the civic-national context. The United Nations could make recommendations and initiate a “fact-finding” mission, but it could not validate the claim of a right to water.
Furthermore, just as a performance of right can make something happen or appear, it can also fail to make something happen—an asylum seeker’s claim could go unrecognized by a state, or require repeating, perhaps again without ever being heard.16 The need for a validating community is an instance of what Michelman calls the “self-referential bind” of the “right to have rights” or what Thomas Keenan insists is its “sad fact.”17 In order for a claim to membership in a community to be recognized, an individual must already be included in a community. The very right to inclusion has inclusion as its precondition.
Despite their commitment to an emancipatory outcome, neither of these interpretations of the “right to have rights” adequately address the recursive logic of the way in which membership in a political community must be the condition for the rights of humanity. It is because of this bind that it is difficult to conceive political subjectification for the rightless in Arendt’s account. To be without a community, she argues, is to have no rights at all. To make a performative claim to be part of a community requires a performance of right not recognized by law. The biggest problem for both normative and performative readings of the “right to have rights” then is that they avoid the active uncertainty in Arendt’s thinking about how the rightless can lay claim to a community from which they have been willfully excluded. There is no guarantee that a performative claim to rights will be validated, especially if the community that the claimant seeks entrance into is itself responsible for the loss of rights. This Arendt knew deeply from her experience as a denationalized subject of Nazi Germany’s Nuremberg laws, which made all nationals of “alien blood” second-class citizens without political rights. After fleeing a detention center in France, Arendt did not seek re-entry into Germany by staking a claim to her “right to have rights,” but rather escaped to America on a forged visa. The country of her birth, the community on which she might stake a claim of inclusion, was also the country actively vested in keeping her and other Jews outside the borders of its community.
The problem for the rightless, in Arendt’s estimation, is not simply that they have no community. It is that their membership in a community has been forcefully taken away by the state’s “insisting on its sovereign right of expulsion” through acts of denationalization.18 Before she ever articulates the “right to have rights,” Arendt is dedicated to the task of making her readers aware of the difficulty for a stateless person to regain entry to a community once their right to community has been lost. Updating her article from its original appearance in the Modern Review, in Origins she adds a lengthy section which outlines how solutions such as repatriation and naturalization fail if countries are not willing to accept stateless persons, or if the sheer volume of applications for naturalization has the opposite effect, leading to panic about an influx of perceived aliens and more denaturalization laws. The only other option is for a stateless person to become a “recognized exception.” This can happen in one of two ways. A stateless person can commit a crime to at least gain protection from the law (“if a small burglary is likely to improve his legal position, at least temporarily, one may be sure he has been deprived of human rights”).19 Or, an anonymous stateless person can, somehow, become a recognizable genius: “it is true that the chances of the famous refugee are improved just as a dog with a name has a better chance to survive than a stray dog who is just a dog in general.”20 Both of these options, however, are exceptional loopholes that do more to emphasize the hopelessness of the rightless than offer satisfying, much less revolutionary, solutions to their predicament.
Not only does Arendt offer no insight in her analysis—aside from loopholes and exceptions—that might disrupt the recursive bind of the “right to have rights,” she invests no confidence in the phrase even after she inscribes it twice near the end of the ninth chapter of Origins. If we return to the original appearance of the idea in Arendt’s Modern Review article of 1949, two years before The Origins of Totalitarianism, we see that by 1951 Arendt is pronouncedly skeptical of human rights. In the first appearance of the phrase, Arendt presents the “right to have rights” as the “one human right,” the one right we need before we can have all others.21 She speaks confidently of this right becoming “meaningful again if it is redefined in the light of present experiences and circumstances.”22 In conclusion, she suggests that this one human right “can exist” through the “mutual agreement and guarantee” of the comity of nations. This earlier articulation of the concept resonates with Benhabib’s idea of “democratic iteration,” evincing belief that cosmopolitan bodies can or might work together to support a right to be part of a political community. By Origins, however, the assertiveness of this claim is gone. The “right to have rights” is not a pragmatic prescription for politics, nor does it offer an emancipatory logic to redress rightlessness. It is no longer the “one” human right; it is now the right we have always already lost and which humanity cannot reclaim.23
The focus on the “right to have rights” as a lost right is not the only rearrangement Arendt makes to her argument in Origins. In her Modern Review article, the “right to have rights” is articulated following a discussion of Edmund Burke to whom she turns to analyze natural rights. The fact that the conservative philosopher was unaware of the “right to have rights,” she argues there, undermines his critique of natural rights as “metaphysical abstraction” in Reflections on the Revolution in France (1790).24 Modern people “know even better than Burke that all rights materialize only within a given community.” “But we also know,” she continues, “that apart from so-called human rights, which change according to historical and other circumstances, there does exist one right that does not spring ‘from within the nation.’”25 In Origins, by contrast, Arendt positions her critique of Burke at the end of the ninth chapter, after she has posited the “right to have rights.” This rearrangement is significant, as will soon become apparent.
In Reflections, Burke argues that the natural man heralded by the 1789 Declaration of the Rights of Man and of the Citizen has no place in history. To his mind, human rights are “abstractions,” mere puffs of words, compared to the hereditary entitlements that pass down to a person on the basis of blood and allegiance to a political community. Nothing in history, Burke opines, allows for the idea of a state of nature in which “natural” man lives beyond the conventions and traditions of civil society. National rights—in Burke’s case the “rights of an Englishman”—are the only legislative rights that can be relied upon to provide safety and security for individuals.26
Startlingly, Arendt positions herself in agreement with Burke. For her, the central noun in the French declaration is “citizen” rather than “man.” The Rights of Man, which were meant to be effective for all people regardless of nation, class, or creed, were declared at precisely the same moment that the French Republic ushered itself into existence. “The representatives of the French people,” begins the 1789 Declaration of the Rights of the Man and of the Citizen, “‖ are resolved to expose, in a solemn declaration, the natural, inalienable and sacred rights of man.” Arendt makes much of the fact that it is the French who realize and “expose” the natural rights of all men. The declaration, she contends, is a twofold declaration, delineating both “man” in his natural condition and “the citizen” as a member of the French people. But man and citizen are not equal constituents. The announcement of natural man is but a prelude, an opening act, to the all-important arrival of the republic. “Man,” says Arendt, “had hardly appeared as a completely emancipated, completely isolated being who carried his dignity within himself without reference to some larger order, when he disappeared again into a member of the people.”27
To Burke’s opinions about the Revolution, Arendt adds the benefit of historical hindsight. In principle, the Rights of Man are supposed to be irreducible to any other kind of law and therefore not reliant on the authority of the nation-state. But political praxis and history provide no means of untethering the natural rights of individuals and the right of the “people” to national emancipation. By the nineteenth century, human rights had become in Arendt’s estimation a “sort of stepchild” in political thought, used only to defend individuals in a “perfunctory way” against the power of the state when there was nothing else to fall back upon.28
The national bias of human rights became shockingly obvious in the period between World War I and World War II when some 50 million people became stateless persons, refugees, or minorities through mass denaturalization. The stark fact of this widespread statelessness demonstrated to Arendt that human rights are not primary or natural rights. They are rights “for those who [have] nothing better to fall back upon,” or “rights of the underprivileged”—rights, that is, for those who have lost the civil and social rights of a particular community. This is to say, the moment when humans should have been most in possession of their human rights, stripped as they were of all other legal entitlements and reduced to the status of “natural” man, the utter lack of authority supporting those rights was revealed.
Arendt’s interest in the “pragmatic soundness” of Burke’s critique of the Rights of Man can make her sound like a legal positivist who upholds laws in the form that they have been historically ordered or practiced.29 But I want to emphasize that as much as Arendt is indebted to Burke for her thinking on the “right to have rights,” and as much as she arrived at a similar conclusion about the practical limitations of human rights, making his conclusion something of her own conclusion to Chapter 9 of Origins, she was also thinking in a direction that opposed him and moved toward a different outcome. As the scholar Ayten Gündoğdu points out, Arendt does not want “to endorse [Burke’s] argument that takes political membership as a given.”30 Burke holds that positive, historical rights have always already rendered the Rights of Man redundant. That is, human rights are nonsense because they are unnecessary for subjects who are already safeguarded by the laws and traditions of their home country. In championing the laws of civil society over natural rights, Burke presumes there is no such place as “nowhere” and that there is no such thing as mere existence outside the context of a nation. Arendt, however, redirects Burke’s confident assertion about the timelessness of the nation-state to consider the futility of human rights in the face of an entirely new phenomenon: mass statelessness.31 The refugee crisis after World War I revealed to her that humans can exist in a place called nowhere; they can be displaced from political community—they can be turned into abstractions. So while Arendt agrees with Burke that legal and political institutions are necessary to safeguard rights, her focus on mass migration and statelessness in the interwar period reveals precisely that history does support the idea that human beings can lack the protection of a social order.
This is a crucial difference. Where Burke’s criticism of human rights rests on his aristocratic, anti-egalitarian politics, Arendt’s critique, and the historical comprehension it involves, is part of an effort to think through possibilities for those who are forced outside the pale of the law. For Burke, the Rights of Man are an unnecessary accessory to citizen rights. Arendt, however, sees something worth keeping. She changes the problem of human rights from the identification of these rights as nothing (mere “metaphysical abstractions” in Burke’s parlance) to the question of their insufficiency and need of supplementation by the nation-state.
It is with this characterization of human rights as supplementary rather than as redundant (rights that are the same as citizen rights and therefore useless) that Arendt raises, for a second time in Origins, the possibility of a right not grounded in the laws of government.32 In this second invocation of the “right to have rights,” she makes clear that this right is not to be confused with human rights:
the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible. For, contrary to the best-intentioned humanitarian attempts to obtain new declarations of human rights from international organizations, it should be understood that this idea transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states; and, for the time being, a sphere that is above the nations does not exist.33
Like Burke, Arendt understands that the primary importance of institutions is their function as the safe keeper of rights. Humanity is an impossible foundation for rights whose security depends on the protection offered by a nation-state. But unlike him, she makes her argument from the historical vantage point of someone who is witnessing the disintegration of the nation-state system, a system that was only in its infancy during the French Revolution when Burke was writing. Arendt is not smugly content with the idea that individual nation-states are the inevitable protectorates of rights; in her analysis, rightlessness is a symptom of the nation-state system’s dissolution and its decline toward imperialism. It is, as she says, a “deadly” symptom.34
Arendt’s reading of Burke in Origins is important because it is here that we see how she wants to preserve a right that she cannot substantiate in any positive or transcendental sense nor see protected by humanity beyond the frame of the nation-state. Arendt refuses to provide an alternative authority for human rights, but neither does she resign herself to cynicism toward them. The “right to have rights” is her first and last line of defense against Burke’s conservatism. It is the only thing that prevents a wholesale slide into his cynicism about human rights as hopeless idealisms.35 And yet in Origins she chooses to put her engagement with Burke at the end of the chapter, after she has spoken of the “right to have rights.” In the Modern Review essay, the “right to have rights” is a trump card; by Origins it is a lost cause. Nevertheless, it remains the one place in Arendt’s thought where she is able to resist Burke’s final conclusions, even if she cannot refute them.
I have called attention to the temporality of Arendt’s narrative (that it is “only” after “the right to have rights” has been lost that it becomes visible) and to her rearranged engagement with Burke because I think it is essential to be mindful of the way in which Arendt accounts for the human community’s role in the loss of a right it is supposed to “have” by simply existing. In her analysis of the Rights of Man, Arendt shows herself to be less interested in the anarchic or performative agency of a groundless right (as she was elsewhere, most markedly in her writings On Revolution), than with the history of civilized society’s forfeiture of such a right. If we put less emphasis on the first right in Arendt’s construction, we gain a better sense of the historical analysis that permeates her thinking. In positioning the “right to have rights” as an already-lost right, she pivots attention to the forces that created that loss. Arendt spends more time describing a refugee crisis that had gone unheeded than she does theorizing its solution. The “right to have rights” is her way of understanding the extent to which this crisis is the result of a loss of territorial ties, and in what ways the loss of these ties is directly related to the disintegration of the nation-state system.
In Origins, the “right to have rights” is not a solution to Burke’s impasse; it is a means of diagnosing rightlessness and the profoundly new power conditions of the twentieth century. Both are problems for which national or international solutions cannot be found. While Arendt recognizes that human rights are worth aspiring to, she concludes, in a pragmatic manner, that the idea of a right above nations does not at present exist. She is profoundly skeptical of the notion that international law and international institutions such as the League of Nations can provide adequate grounds for the “right to have rights.” As she notes, matters of emigration, nationality, and naturalization are prerogatives that nation-states uphold as their sovereign right.36 She wagers that nation-states, vociferously attached to the project of national homogeneity, are not capable of devising new rules for international affairs, nor do they have any way of enforcing rules on the rest of the world. For example, she points to the development of international treaties, which ironically made it harder for nations to exercise the right of asylum, as countries were then required to give greater respect to the sovereignty of their fellow states.37 In drawing attention to the means by which rights are forfeited and enabled by reciprocity treaties that respect sovereignty rather than solidarity between nation-states, Arendt highlights the fragility of the nation-state system rather than its robustness as the protectorate of rights.
What is even more uncertain in Arendt’s analysis is the possibility that a nation-state could ever restore the principles of legal equality once they have broken down. Some scholars have singled out the following statement as a sign of Arendt’s hopefulness for an international solution to the problem of human rights: “Our political life rests on the assumption that we can produce equality through organization, because man can act in and change and build a common world together with his equals and only with his equals.” But Arendt is actively working to unsettle this assumption about building a common world together. This is obvious from the less sanguine statement that immediately follows it: “the dark background of mere givenness, the background formed by unchangeable and unique nature, breaks into the political scene as the alien which in its all too obvious difference reminds us of the limitations of human activity.”38 For Arendt, humanity and human artifice—“that great capacity to build a common world together”—is the very source of rightlessness. It “is by no means certain,” Arendt says, before going completely quiet on the matter, that humanity and human institutions can ever guarantee a right to be a member of a political community.
The central events of our time are not less effectively forgotten by those committed to a belief in an unavoidable doom, than by those who have given themselves up to a reckless optimism.
—Preface to first edition of
The Origins of Totalitarianism
Perhaps the best way to understand the “right to have rights” is to think of it as Vladimir does in Samuel Beckett’s Waiting for Godot (a play written, not coincidentally, the same year as The Origins of Totalitarianism), as a right that has been actively lost:
ESTRAGON: We’ve no rights anymore?
. . . . . . . . . . . . . . .
VLADIMIR: You’d make me laugh if it wasn’t prohibited.
ESTRAGON: We’ve lost our rights?
VLADIMIR: (distinctly). We got rid of them.
Silence. They remain motionless, arms dangling, heads sunk, sagging at the knees.
ESTRAGON: (feebly). We’re not tied? (Pause.) We’re not—39
As Vladimir suggests here, the “right to have rights” demarcates a loss, or what Arendt also refers to several times as a “disintegration.” In postwar Europe, the “right to have rights” became for millions of people a right that was rescinded rather than a right that could be invoked to rectify a lack of civic and political rights. (To understand what Arendt meant by the “disintegration” of the nation-state system we need only think of Nazi Germany purposely expelling the Jews as a form of propaganda to convince neighboring countries of their “scum” status.)
To some extent, as a lost right, the “right to have rights” is more of a thought experiment than a solution to a problem. Its evocation is an opening through which we can reflect on what is logically necessary for politics to emerge. Like Thomas Hobbes and John Locke’s state of nature, which represents the hypothetical conditions that people might have lived in before the advance of civil society, the “right to have rights” represents the conditions that must be met before something like citizen rights can be possible. But unlike the state of nature, which provides a fictional origin story for the political structures of modern society, the “right to have rights” does not refer to a political contract or covenant. It is unclear how, or if, such a right can come into existence in the first place. Classic state of nature theories describe a time when individuals emerged from an unorganized state to become functioning citizens or subjects of a polity. Arendt, however, narrates this story in reverse. In her account, the homogenizing impulses of nation-states cast millions of people into what she calls a “peculiar state of nature.” Why is this state a “peculiar state?” Because, she says, of the “new global political situation.” The calamity of rightlessness is caused not by the barbarism of a single nation-state, but because of an increasingly organized and global humanity, by “human artifice.” At the end of Chapter 9 in Origins Arendt is fairly clear that we cannot, with any certainty, think of “humanity” as a guarantor of human rights because it is civilized humanity that engineered rightlessness in the first place: “the danger is that a global, universally interrelated civilization may produce barbarians from its own midst by forcing millions of people into conditions, which despite all appearances, are the conditions of savages.”40
There is no sense, in Arendt’s conclusion, that rightlessness is a problem that can be fixed or ameliorated. She notes that the number of stateless persons in Europe is continually rising, a statement no more lackluster today amidst reports that the global refugee crisis has surpassed the numbers of stateless people in the postwar period. She also emphasizes the “newness” of denationalization, its permanence and lack of remedy. The stateless can never be “renormalized,” she says, once they have been evicted from organized community.41 Indeed, the only productive or generative agency associated with the “right to have rights” seems to be the state’s active and willful expulsion of its undesirable members for the sake of a national project.
For Arendt, the “right to have rights” is neither a moral prescription nor some emancipatory catalyst, even though many of her readers have chosen to interpret it in one of those ways. Rather than foster idealisms about how such a right might be activated or claimed for the future, Arendt’s critical work here, I have suggested, is to draw attention to the violent history of how this right came to be lost by humanity itself in the aftermath of World War II. I confess that the reading I have presented here has something cynical in it, not unlike Jacques Rancière’s criticism of Arendt.42 Rancière aligns Arendt’s account of rightlessness with Giorgio Agamben’s concept of bare life, regarding both as narratives of life beyond political disruption. Rancière argues that Arendt identifies an aberration without solution, which is convincing in many respects (twice Arendt speaks of rightlessness as a “permanent institution”). But Arendt’s inscrutable reminder about the “limitations of human activity” also provides an opening of possibility, a recognition, perhaps, that nation-states, as well as individuals, are also cast into this peculiar state of nature, and that this shared chaos may grant us the opportunity to organize ourselves anew. At the very least, Arendt reminds us that it is incalculable chance, rather than right, that forms the basis of all organized community and of our claims to it. An invocation of the “right to have rights” often falls silent or goes unanswered; equally, it could work, as it has worked in the past. There is no sense of solution in Arendt’s writing, but neither is there doomsday determinism. “No matter how much we may be capable of learning from the past,” she insists in her Preface to Part II of Origins, “it will not enable us to know the future.”43
This incalculability perhaps represents a glimmer of something hopeful in Arendt’s analysis. A more concrete expression of this hope is her faith in America. America, she writes, “always considered newcomers as possible prospective citizens.”44 But given what we know of how America is treating its newcomers today—whether through the president’s partially enforced travel ban, call for suspension of the foreign worker H1B visa program, or the promised “wall” between Mexico and the United States—we might have greater reason than Arendt to feel hopeless.
At the very least, our contemporary moment is defined by an urgency that is similar to that which led Arendt to the task of comprehending the foibles of humanist fantasies. Just as she knew we had to understand totalitarianism and rightlessness from a bigger, more interconnected perspective, we can no longer afford to trade a larger, tangled web of historical incomprehension for neat or singular narratives about democratic change (the Arab Spring) or its disintegration (the 2016 US election). We would do better, I think, to extend Arendt’s historically situated analysis to the twenty-first century, where the proliferation of rightlessness has poisoned not only Europe, but the so-called last hope, maybe the only hope, in Arendt’s analysis.