Inborn human dignity … not only does not exist but is the last and possibly most arrogant myth we have invented in all our long history.
—Hannah Arendt, The Origins of Totalitarianism
“Perhaps that is what I must learn to accept. To start at ground level. With nothing. Not with nothing but. With nothing. No cards, no weapons, no property, no rights, no dignity.”
“Like a dog.”
“Yes, like a dog.”
—J. M. Coetzee, Disgrace
The “right to have rights” implies that individuals exist who hold this right, but who are they?
On this question the phrase itself is conspicuously silent. The “right to have rights” tells us what those bearing it have a right to (other “rights”), but, in contrast to such phrases as the “rights of man,” “women’s rights,” and even “animal rights,” it does not give the bearers themselves a name.
Virtually all of Arendt’s readers, however, act as if the only meaning we can attribute to the phrase’s silence on the question of the subject is: it goes without saying that the owners of this right are human beings. This conviction is manifest in the widespread interpretation of this right as an updated version of human rights. This interpretation has been given various expressions. One approach holds that being human is the substantive foundation of the right to have rights.1 Another argues that “the human” is the performative effect of the right to have rights.2 What everyone agrees on, though, is that the right to have rights is a human right in the sense that it belongs to human beings.3 While not everyone would countenance her reasoning, Seyla Benhabib, Arendt’s most influential reader, expresses the point succinctly when she contends that one earns “recognition of the right to have rights simply because one [is] a member of the human species.”4
A close reading of Arendt’s writings, however, should make us stop and think about whether we are justified in assuming that only human beings are subjects of the right to have rights. To be sure, she herself claims that the right to have rights is a way the “concept of human rights can become meaningful again.”5 Nevertheless, overlooked elements within her writings should make us cautious about placing too much emphasis on such an announcement. In what follows I focus on two elements. The first is her critique of human rights as a biopolitical fantasy. The second is her presentation of the right to have rights as a resource for critically contesting established assumptions about who counts as a subject of rights. Once we take these two parts of Arendt’s writings into account, I argue, the refusal to include a name for the subject in the phrase the “right to have rights” acquires an unsuspected significance: it is a sign of a concern about repeating the assumption, so manifest in human rights, that subjects of rights can be found only within the human species. Far from being a new version of human rights, the right to have rights blows wide open the question of who the subjects of politics are and prompts us to rethink, from the ground up, the most just shape of a democratic political community.
Everyone agrees that the phrase “the right to have rights” emerges in the course of a critical account of what Arendt calls “the perplexities of the rights of man.” But just how critical this account is remains inadequately understood. The main target of her critique is the bold assumption that the status of the subject of rights is a direct expression of human nature. This assumption is already on display in the widely repeated definition of human rights as the rights that human beings possess simply by virtue of being human.6 But it is unmistakable, Arendt suggests, in the naturalistic language of the great declarations of human rights.7 “All men are born and remain free and equal in rights,” reads article 1 of the Declaration of the Rights of Man and of the Citizen, issued at the start of the French Revolution in 1789.8 To say that birth as a human being is the only requisite for possessing human rights, she points out, is to say that such rights “spring immediately from,” “could be deduced [from],” or are “given with human nature as such.”9 Put otherwise, to present human rights as birthrights is to assume that the status of the subject of rights, far from being the product of action, including that form of action known as speech, is built in to all specimens of the species Homo sapiens—that, as DeGooyer and Maxwell pointed out in previous chapters, the rights are natural. It is precisely this logic that makes it possible for any literal assertion of membership in the human species—such as the assertion “I AM A MAN” written on signs held by black US civil rights protesters in 1968—to be read metaphorically as a claim to the status of a subject of rights.
Arendt is unsentimental in her criticism of this high assessment of the intrinsic political value of human nature. It is, she says, a fantasy. For even if we assume that such a thing as “human nature” does exist and can be known—and she observes grave doubts about both assumptions10—this nature is hardly capable, by itself, of transforming human beings into subjects of rights. Being a member of the human species, she insists, like all features of “mere existence,” contains no intrinsic political significance that could be either understood or misunderstood.11 The status of subject of rights does not “grow out” of human nature; rather, it is a “product” of institutions that are by definition “convention and artificial,”12 “the result of human organization insofar as it is guided by the principle of justice.”13 In a flat denial of the basic logic of human rights, Arendt declares, “We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.”14 In short, human rights are predicated on a desire to escape the fact that human nature does not by itself decide for us who can be bearers of rights.
However, Arendt does more than criticize as fantastical the notion that being human possesses an intrinsic political value. She also suggests that it is a fantasy that is not wholly new and is of a kind of which we have already learned to be wary. The idea of human rights, she contends, repeats the biopolitical logic of racism.
Prior to introducing the “right to have rights” in Chapter 9 of The Origins of Totalitarianism, Arendt spends Chapters 6 to 8 narrating the emergence during the nineteenth and early twentieth centuries of racism as an ideological weapon of European imperialism in Africa and on the Continent. Racism, she claims, was built upon the fusion of two ideas from the older tradition of what she calls “race-thinking.” The first is the notion that individuals can be grouped together as a people, not by virtue of being speakers of the same language or participants in a common political project, but on the basis of their possession of shared traits in their physical nature.15 The second idea is that individuals who possess a certain natural constitution also possess, by virtue of it, an inherent social or political status.16 Once “organic naturalistic definitions of peoples” and the belief in “natural privileges” or “innate personality” are welded together, the resultant ideology of racism can, Arendt argues, serve as an instrument of various political agendas.17 Most obviously it can transform the majority of human beings in the world into members of so-called inferior races, a metamorphosis aimed at “directly depreciating the very nature of [these people].”18 And yet racism, she notes, also has an inclusionary function, however limited, insofar as it takes the sense of privilege traditionally restricted to aristocrats and extends it to people from all classes to produce a so-called superior race. In both Britain and Germany especially, race-thinking “was born of the desire to extend the benefits of noble standard to all classes.”19 No doubt, whereas pride of aristocratic birth is usually backed up by real political privileges, racial pride of birth into a “superior race” is often felt by those who are in reality politically marginalized. Still, racism’s wager was that “nature itself was supposed to supply a title when political reality had refused it.”20 And what made the concept of race convincing as a political fantasy was the sleight of hand by which it could hide its essential fiction and present racial superiority and inferiority as facts of nature. For once the position of individuals on a political hierarchy is experienced as a function of birth, it cannot “be retraced to any human deed.”21
What does this have to do with human rights?
Well, when we consider her critical account of human rights in the light of her genealogy of racism, it becomes difficult to avoid noticing that in one important respect human rights very much resembles racism. She herself articulates the idea (in Chapter 9 of Origins) in a description of the sleight of hand under which victims of race-based slavery labor:
Slavery’s crime against humanity did not begin when one people defeated and enslaved its enemies (though of course that was bad enough), but when slavery became an institution in which some men were “born” free and others slave, when it was forgotten that it was man who had deprived his fellow-men of freedom, and when the sanction for the crime was attributed to nature.22
Arendt’s phrasing here is noteworthy. In stating that even the institution of slavery allows that some human beings are “‘born’ free,” she repeats the pivotal words from the first article of the Declaration of the Rights of Man and of the Citizen. The implication is that human rights and racism both profess that birth in a natural group by itself determines an individual’s status as a subject of rights. But if this is too subtle, Arendt spells out the point in a brace of sentences added to the version of this passage found in the German edition of Origins:
The pronouncement of freedom as an “inborn right,” in the formulation of human rights, is merely the last carryover of this theory. The inborn freedom was now extended to everyone, even to slaves, and one ignored that both freedom and unfreedom are products of human actions and have nothing at all to do with “nature.”23
If proponents of human rights and proponents of racism agree on anything, of course, it is that their positions are sharp opposites, insofar as the former upholds the equality of rights of all human beings that the latter pointedly repudiates. This opposition is especially sharp in the four documents on race published by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) between 1950 and 1967, which outline an account of the human species intended to debunk earlier accounts used to legitimize explicitly racist politics pursued by governments before and during World War II. And yet, what Arendt helps us see is that, even as the model of the human species supporting human rights displaces the model that authorized racism, what remains in place is the assumption that biological nature provides a basis for political community. The one assumption of racism that the concept of human rights does not dispute is that the nature of individuals is a metaphor for their political status. To be sure, human rights reworks the racist idea that individuals possess rights by virtue of birth in a race into the more expansive claim that individuals possess rights by virtue of birth in a species—often called, oddly enough, “the human race.” However, like racism, human rights reads political status as a direct expression of the nature of human beings.24 Indeed, the sharpness of the opposition between human rights and racism can be explained as an effect of their prior agreement that nature itself decides which individuals are legitimate subjects of rights.25
Although she died the year Michel Foucault employed the term biopolitics to refer to a type of power that takes biological life as its object and objective, Arendt is now increasingly recognized as a primary theorist of biopolitics avant la lettre.26 A common ground for this recognition is her concern with the increasing dominance of biological life in modern societies.27 Yet another is provided by her insight that racism and human rights share the same basic logic. For this logic is, in both cases, biopolitical.
It could be objected that Arendt’s biopolitical model of human rights overlooks the fact that whereas racism is an ideology that wields tremendous destructive social power, human rights remain aspirational for most human beings. Is it not Arendt herself who helps us understand both the decisive role that racism has played in politics and the failure of calls for human rights to prevent political violence?
This argument evaporates when we are clear about two things.
First, the practical failures to establish human rights for all human beings makes human rights more, not less, similar to racism. After all, racism, as we have seen Arendt herself stress, is an inclusive ideology, insofar as it enlarges the sphere of privilege to all members of the superior race, regardless of class standing. Its fantastic desires to the contrary, however, racism cannot rely upon being racially white to magically elevate all white people to a position of political privilege. Arendt underscores this in her cutting characterization (in Chapter 7 of Origins) of the Boers in nineteenth-century South Africa as unwitting embodiments of the naturalized race existence that they took to be the mark of racial inferiority in indigenous Africans.28 A similar aporia, she points out, structures human rights. For the very attempt to present human beings as by nature subjects of rights ends up inadvertently denying them the membership in a political community that is the key condition of being a subject of rights. It is precisely this aporia that Giorgio Agamben points to when, building on Arendt’s analysis, he argues the human life revealed at birth (which, outside all citizenship, is supposed to be the source of human rights) is in fact the “bare life” of those included in the political only to the extent that they are excluded from politics.29 Arendt’s model of human rights is, then, perfectly consistent with (indeed, is of a piece with) her acute awareness that human rights are not an irremissible fact with an irresistible force. If anything, her biopolitical account of human rights brings into focus the practical inefficacy likely to follow the fiction of perceiving inherent political value in biological facts.
The second, and more important thing we need to be clear on is that human rights, much like racism, stipulates arbitrary limits to who can be a subject of rights. I doubt anyone needs convincing that racism is an exclusionary ideology. Whatever its conspicuous failures in enabling individuals to enjoy a range of rights as members of so-called superior races, racism has been remarkably successful at denigrating, to its core, the very life of people who are not born white. More difficult to see is the exclusionary force of human rights. Indeed, beside racism, the idea of human rights seems a model of inclusiveness, insofar as it explicitly grants the status of subject of rights not just to members of one race, but rather to all members of the human species without exception. Nevertheless, the covert exclusion on which human rights relies comes into view once we appreciate that saying all human beings “are born and remain free and equal in rights” amounts to saying only human beings are born this way. In much the same way as racism categorically excludes as rights-bearing subjects all those who have the bad luck to be born into so-called inferior races, so human rights categorically excludes as rights-bearing subjects all those who have the bad luck to be born into nonhuman species. Indeed, within a framework in which being human is a metaphor for rights-bearing subjectivity, being nonhuman serves as a corollary metaphor for what Arendt herself called “fundamental rightlessness.”30 Human rights might fail to connect human beings with rights, as Agamben points out, but human rights do not even try to connect animals with any rights. It is true that whereas racists are obsessed with establishing the inferiority of racial others, human rights advocates hardly spend any time asserting the natural unfitness of (nonhuman) animals to be subjects of rights.31 However, the fact that the rightlessness of animals is assumed rather than asserted, let alone argued, can be read as a sign of a supreme confidence among human rights advocates that there is self-evidently no one else left to include within the sphere of subjects of rights. In other words, the exclusion of animals as subjects of rights, upon which the discourse of human rights is predicated, runs so deep that it is itself excluded. We can exclude animals from the possibility of justice and forget that it was we, and not nature, who effected this exclusion.
The major lesson I want to draw from Arendt’s bio-political analysis of human rights is that membership in the human species cannot be held to determine who is a subject of the right to have rights. After all, it would make no sense for her to critique, as a biopolitical fantasy, the notion that being human gives one human rights only to then turn around and conceive of being human as the origin for the right to have rights. Arendt is in fact more or less explicit in her insistence that the right to have rights cannot be conceived of as something already built into human nature. This right, she says, is “the right never to be dependent on some inborn human dignity, which … not only does not exist but is the last and possibly most arrogant myth we have invented in all our long history.”32 Figuring out that the subjects of the right to have rights is not a function of human nature alone is a significant insight, for it not only contradicts the tendency among Arendt’s readers to assume that human beings are by nature holders of this right, but draws attention to the way this assumption repeats the essential arrogance of racism.
Nevertheless, Arendt’s account of human rights as a form of biopolitics takes us only so far. It still leaves wide open the question of who can be a subject of the right to have rights. More specifically, even if we have established that being human is not a sufficient qualification for being a subject of this right, what remains to be worked out is whether anything Arendt wrote implies that being human is a necessary feature of bearers of the right to have rights. Phrased positively: does the right to have rights encourage us to look for bearers of this right outside the human species? To think through this question, we need to turn away from Arendt’s critique of human rights and to examine her account of the right to have rights.
In the long history of rights, the “right to have rights” marks a genuine innovation. One way to see what is new about this right is to compare it with the two other more traditional kinds of rights with which it is sometimes confused: “human rights” and the “rights of citizens.” Human rights are, to repeat the standard definition I mentioned earlier, the rights that human beings have simply by virtue of being specimens of the human species. As we have seen, Arendt is highly critical of the notion that there exist rights inherent in the nature of human beings. To a considerable extent her criticism was also articulated by the famous opponent of the French Revolution, Edmund Burke, who already in the eighteenth century dismissed human rights (or “the rights of man” as they were still called then) as a theoretical abstraction. Against “the rights of man” he affirmed “the rights of Englishmen,” which he described as “an estate specially belonging to the people of this kingdom,” and not to human beings in general.33 Burke’s insight here is, in Arendt’s words, that “rights materialize only within a given political community, that they depend on our fellow-men and on a tacit guarantee that the members of a community give to each other.”34 For this reason, she says, Burke displayed “pragmatic soundness” in expressing his preference for the rights of citizens over human rights.35
What Arendt also realizes, however, is that Burke’s analysis has one major limit insofar as he assumes that everyone who could be a member of some political community already is. What he does not consider is the predicament of those who, for whatever reason, have never been members or have lost their status as members. This is where the right to have rights comes in. For this is not one among the many civil, political, and social rights enjoyed by those who are already members of a political community. Rather, it is a right belonging to those who themselves do not belong to any political community. But this is not to say that it is a right that individuals enjoy without becoming members of a polity. For what the right to have rights gives its holders access to is membership in a political community in which they have potential access to an array of civil, political, and social rights. However, no particular rights necessarily or immediately follow from possession of this one right. According to Arendt, even slaves can be said to enjoy the right to have rights, insofar as they “still belonged to some sort of human community.”36 Whether or not we agree with that statement, it remains true that the particular rights that members of a community have is a matter to be decided by the body politic of a particular community. Possession of the right to have rights, that is, “will, by itself, achieve neither liberty nor justice, for these are the concern of the daily strife of all citizens; it can only secure the participation of all men in the strife.”37 Even so, the significance of the right to membership in a political community is that it is the only right that can really address the predicament faced by anyone who is not a member of a political community. For at the same time as it does not assume that nature will provide rights, it also does not attach itself exclusively to those who are already members of a political community. As the right to acquire membership in a political community, it is the only right designed to enable individuals to get into a position where they can go on to have a range of concrete rights. Neither one of the rights belonging to citizens nor a right held by individuals without any relation to political institutions, then, the right to have rights is the right of individuals who are not members of a political community to become members of such a community in which they can have rights.
We get a good measure of the significance of the right to have rights when we consider more carefully the predicament of rightlessness that it was designed to implement. The deprivation of rights is, of course, something too many people have more experience with than they could ever desire. Arendt herself observes that the interwar years of the twentieth century on which she focuses in Origins saw a number of groups lose rights: “the dispossessed middle classes, the unemployed, the small rentiers, the pensioners whom events had deprived of social status, the possibility to work, and the right to hold property.”38 However, like most individuals who lose rights, such people are, she points out, generally speaking members of a concrete political community. This point is crucial. For by virtue of this membership, their loss of rights remains restricted to particular civil, political, or social rights. She expresses the point with some precision when she writes, “The soldier during the war is deprived of his right to life, the criminal of his right to freedom, all citizens during an emergency of their right to pursue happiness.” But, “these are the rights of citizens whose loss does not entail absolute rightlessness.”39 In fact, even as members of a given political community lose certain rights, they retain a number of other rights. They can, moreover, still turn to the police, the courts, and even the legislature to contest their loss. None of this lessens the sheer pain or injustice that comes with the loss of rights. However, the fact is that members of a political community who lose one or more rights maintain possession of other rights.40
More profound, Arendt argues, is the loss of rights suffered by those whose right to membership in a political community is placed in question, for in losing their position as members, such people lose the very status necessary for having any rights whatsoever. She dubs these people “the rightless” [die Rechtlosen],41 and she explains their predicament this way. It is not quite correct to say that those who “no longer belong to any community whatsoever” are “deprived of life, liberty, and the pursuit of happiness.” After all, these are “formulas which were designed to solve problems within given communities.”42 It is more accurate to say that people who are excluded from political community have been deprived of the very status of holders of rights. Such people are not simply “unequal before the law”; rather, they have been “forced outside the pale of the law.”43 They have lost not just one or more of the “specific rights” that citizens normally enjoy; rather, they have lost “all rights.”44 Their situation is not merely the loss of rights but rather “fundamental,” “absolute,” and “complete rightlessness.”45 In short, they have lost the very status of “subject of rights.”
Arendt describes what losing this status can look like during a powerful passage in the article where she first speaks of the right to have rights. Total exclusion from political community, she writes, “is a constant temptation to murderers, or rather a constant threat to our consciences. Like murderers, we may not be aware that anybody has been murdered at all if, for all practical purposes, he did not exist before.”46 As an account of the dangers that attend exclusion from political community, it is provocative, even outrageous. For it posits that such exclusion, besides not being much fun for the excluded, entices others to not feel guilty for murdering them. To be sure, in this scenario the murderers do understand that someone is killed, but they do not consider that someone as an individual with a right to life, and so do not regard what they are doing as murder.47 The more general point here is that, to those who encounter them, the rightless may simply not be regarded as victims of rights violations, because in the first place they do not have any rights that can be violated.48 “No longer, as the persecuted had been throughout history, a liability and an image of shame,”49 those excluded from political community do not make it hard for us to live with ourselves, despite what we may know about their plight.50 Our ability to go on living with ourselves is, moreover, due not to any personal hard-heartedness, but rather to the effects of the condition of not belonging to any community at all on our conscience. Individuals who, by virtue of their community membership, have rights are themselves victims of a certain phenomenological violence that contours their perception of the subjects of rights. For them, the rightless are simply deleted from reality as subjects of rights.51
The invisibility of the rightless makes asserting their right to have rights peculiarly difficult. In a sense, all assertions of rights are difficult, for, as Arendt emphasized in her critique of human rights, rights might be held by individuals, but they are also constitutively relational: in order for individuals to be able to have even one right, others, organized in a political community, must recognize, respect, and enforce it.52 That is, in order to gain the right to be a member of a community, it is not enough for individuals to believe that they have this right; the community to whom they address their claim to membership must believe it. When those who are already members of a political community claim a particular civil, political, or social right, however, they do so as individuals currently enjoying recognition as subjects of rights in general. By contrast, when those who are excluded from membership of any political community assert their right to become members of a given community, their very capacity for having any rights, far from being taken for granted, is precisely what is at issue. For these are people who, in the eyes of existing political communities, are not subjects of rights. So, when people in this position claim the right to have rights, their claim has a decidedly precarious status. Indeed, to the community to whom assertions of the right to have rights are addressed, such assertions may come out of left field, from a place off the political radar. They may be bewildering. They may even seem unintelligible. And one can see why. If membership in community is the condition of possibility of having any rights, then how can the right to become a member of a political community be claimed by those who are not already members? There is no way around this quandary. The claim of the rightless to have the right to have rights must be articulated in the context of the assumption that the individuals in question are not subjects of rights.
Many have argued that on Arendt’s terms the difficulty of asserting the right of the rightless to have rights is not just formidable but insurmountable. Jacques Rancière provides a version of this argument in his influential essay “Who is the Subject of the Rights of Man?” from 2004. Arendt, he contends, conceives of fundamental rightlessness as a condition that cannot be explained or contested in political terms. The root of the problem is the “rigid opposition” she erects between the public realm of politics and the private realm of natural life, into which the rightless are cast. This opposition, he argues, turns the situation of lacking membership in a political community into a “trap” or a “lock,” one for which she can provide no way out. Indeed, the only rights she can conceive of for the rightless would be “the rights of those who have no rights, the mere mockery of rights.”53
Some years before Rancière’s essay appeared, however, Bonnie Honig had already developed a brilliant reading of Arendt that forestalls his argument. Although Arendt is admittedly firm on the need to maintain the distinction between the public and the private, she does, Honig claims, allow that the assumptions authorizing the confinement of individuals to private, natural life can always be subject to political debate. Key here is Arendt’s own understanding of politics as a matter of performative action. Because of this, we can critically regard the expulsion of people from the public sphere as not ontologically given but rather as the sedimented effect of the actions of individuals and the institutions of societies. In fact, the ontologically given appearance of people’s expulsion from the public sphere could, Honig wittily suggests, be taken as an invitation to interrogate, contest, and amend our assumptions in the name of the possibility of justice. The point is not that “everything is political,” but that “nothing is ontologically protected from politicization, that nothing is necessarily or naturally or ontologically not political.”54
Given that the private/public distinction can be made to map roughly onto the distinction between rightless individuals and subjects of rights, it seems to me that Honig helps us see how, for Arendt, the exclusion of individuals from political community is in principle always politically contestable. Let’s take it as given that the assumptions authorizing such exclusion are not given—but rather the result of human action and hence constitutively open to contestation and transformation. What is worth stressing is that the very phrase the “right to have rights” provides a resource for calling into question the exclusion of individuals from membership in a polity. The phrase signifies, after all, a right claimed by the those who, according to dominant assumptions, have no rights, and this right is an entitlement to membership of a political community in which they can have rights. Assertions of the right to have rights cannot necessarily rely upon the support from existing institutions of a political community. They may even be actively discredited by the dominant culture of a political community. However, this only highlights the fact that the right to have rights must be actively claimed in defiance of present reality in which their rights are not recognized. The right to have rights is, in this sense, a right before established right, for it is a right claimed in advance of established laws and norms that legitimate it.55 At the same time, the effect of this claim is to call into question existing laws and norms concerning who is a member of a given polity and who is not. Indeed, it encourages us to take the settled appearance of these laws and norms as an invitation to question them. To my mind, a chief characteristic of the “right to have rights” is that it directs political communities to consider whether they really have already included as members all individuals with a legitimate claim to membership. It insists that we look for candidates for membership in our communities where we least expect to find them, even among those who, to credible observers, do not seem like they could be members of our communities.56 In short, by framing the “right to have rights” as belonging to those who themselves do not belong, Arendt does the opposite of abandoning those who are expelled beyond the borders of political community. She places them at the center of politics.
For Arendt, and for virtually all of her readers, the centripetal force of the phrase is nowhere more desperately needed than in the case of the group whom she identifies as sunk most deeply in a condition of complete rightlessness, namely refugees. Refugees, Arendt herself among them, first appeared in large numbers in Europe after the end of World War I when millions of people, finding themselves no longer able to rely upon their governments to enforce the range of rights citizens normally enjoyed, fled their homelands to seek refuge in another country. In many cases refugees were also stateless people, that is, people who had lost any official citizenship, most often as a result of denaturalization and denationalization laws used by a number of governments across the Continent.57 The stateless, however, were merely the most extreme examples of individuals cast into the condition of all refugees, regardless of their formal legal status; having lost a government willing and able to enforce any of their rights, they were fundamentally rightless. A practical demonstration that refugees do not enjoy recognition as subjects of rights was provided by the National Socialists, when they acted on their ideological assumption that Jews, who comprised a significant proportion of refugees, had no rights at all. However, the rightlessness of refugees was also corroborated by the governments of other nation-states who did little to address the danger that refugees were in. As a result, the predicament of refugees was not simply that they were excluded from their home country, but also that they were not welcomed by any other country. As Arendt put it, their misfortune was both “the loss of a home” and also “the impossibility of finding a new one.”58
In light of the fact that the world is currently witnessing a refugee crisis even larger than that which engulfed Arendt and millions of others, we might not hold out much hope for the ability of nation-states, acting in concert, to find an effective solution to the problem of radical exclusion faced by refugees. However, one element of the large-scale revamp of our political communities such a solution would require can be found in the “right to have rights.” In fact, Arendt’s very invention of the “right to have rights” should be understood not merely as a theoretical gesture, but also as an active attempt to intervene in the situation of refugees, by bringing into focus, and critically contesting, the conditions that make possible their exclusion from political community. Chief among these conditions is the sovereign right that nation-states claim to choose who their permanent residents and citizens will be, a right popularly expressed in the assertion, “We have a right to decide who we want to live with.”59 In the face of the arrogant proclamation by nation-states that this right is absolute, Arendt’s declaration posits a counter-right: the right of noncitizens to be members of a functioning political community. The purchase of the right to have rights is even greater when we understand that the right, claimed by nation-states, to decide who it will recognize as subjects of rights is often exercised in a manner that makes plain its subjection to the force of ideologies that hold that the people who comprise the nation be ethnically and even racially homogeneous.60 In short, the right to have rights enables us to challenge assumptions about access to citizenship that seem so settled that we forget that they were instituted and can be revised. And we must do everything we can to mobilize the resources of Arendt’s phrase to demand that all human beings in a situation of rightlessness, above all refugees, are integrated into political communities redesigned in such a way that renders impossible the political production of rightless human beings.
We might think that once we have extended recognition as subjects of this right to all human beings, without exception, we have exhausted the centripetal force of Arendt’s formulation. However, the assertively inclusive gesture of the right to have rights, especially in view of her critique of human rights as being of a piece with an ideology so obviously exclusionary as racism, makes it plausible for us to ask whether subjects of the right to have rights can be found among inhabitants of the earth who do not happen to be members of the species Homo sapiens. A lively scholarly conversation at the intersection of political theory and animal studies is, in fact, already rethinking many assumptions about who counts as a “political animal.”61 While this conversation is motivated by the presupposition that animals are among the fellow-creatures who make moral claims on us—an argument that has been made so many times already that I have nothing to add to it—its focus is squarely on political rather than moral questions.62 And one of the big questions being thought through is whether at least some animals do not have a legitimate claim to the possibility of justice offered by membership in political community. This is precisely the question that we are incited to ask by the widespread assumption that the subjects of the right to have rights are human: are living creatures who are not human also bearers of the right to have rights?
I realize that the very idea that animals could bear a claim to membership in a political community may sound crazy. And surely Arendt, the quintessential humanist, whose only mention of animals as participants in a sort of “equality” with human beings was as a dark joke, would baulk at considering such a proposal.63 However, we only need to remind ourselves of Arendt’s own account of the effect the situation of fundamental rightlessness has on those who are members of political communities to realize that any incredulity or apathy we feel towards the notion that animals could be subjects of rights may be the primary phenomenological effect of the fundamental rightlessness into which we cast the living in general. That is, our resistance to, even our incomprehension of, the idea that animals might make political claims upon us, while sincere rather than hypocritical, might still be as fabricated as the deafness and blindness to the rightless that any biopolitical fantasy, such as racism, cultivates. At the very least, if we want to contend that the centripetally inclusive force of the phrase the “right to have rights” stops at the edges of the species Homo sapiens, then the burden is on us to argue why we are not guilty of attempting to impose a limit on the range of individuals to whom the right to have rights is available which is as arbitrary as those imposed by nationalism or racism. For saying the right to have rights belongs to those who do not belong to a political community is not the same as saying it belongs to human beings. And our aversion to the proposal to recognize animals as subjects of the right to have rights can ironically become, if not quite a warrant in its favor, then at least evidence that what we are dealing with here is an assertion of the right to have rights like any other.
The case can even be made that many animals present paradigmatic instances of those sunk in fundamental rightlessness. Arendt herself does not explicitly explore this issue. However, it is implied by her numerous uses of animals to illustrate the experience of exclusion from political community. These range from her claim that the “language and composition” of various early “societies formed for the protection of the Rights of Man” showed “an uncanny similarity” “to that of societies for the prevention of cruelty to animals”; her statement 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”; and her contention that insofar as refugees have no right of residence, any “freedom of movement” they enjoy bears “a desperate resemblance to the freedom of rabbits during hunting season.”64 No doubt, the announced function of such animal figures is to vividly depict the tragic predicament of human beings expelled from political community. However, what makes it possible for these figures to perform this labor is her own tacit assumption that the predicament of rightlessness finds an exemplary expression in the situation in which animals are forced, by our political communities, to live.65 Domesticated animals, for instance, might live among us, in some cases even with us, but none of them enjoy the legal status accorded to human beings recognized as citizens of a nation-state. Consequently, no constitutional order in any country recognizes any animals at all as possessing even one right. Whatever the minimal restrictions anti-cruelty and welfare laws impose on the ability of human beings to treat some animals as they wish, none of these laws frame our obligations as a matter of respecting the rights of animals themselves. Jacques Derrida explains the point succinctly:
An animal can be made to suffer, but we would never say, in a sense considered proper, that it is a wronged subject, the victim of a crime, of a murder, of a rape or a theft, of a perjury.66
Not just unequal before the law, animals are simply outside the pale of the law in the sense that they have, not less rights than human members of political communities, but rather no rights at all.
To come to the heart of our question, it seems to me that Arendt’s writings do not throw up any compelling reasons why animals, or at least some of them, might not, in principle, be recognized as bearers of the right to have rights. Before anyone gets any Planet of the Apes scenarios running through their heads, let’s be clear that to say animals have the right to become members of a political community by itself implies nothing about the specific rights animals would have as members. All we are talking about here is whether animals can bear a right to membership in political communities in which they might have rights, whatever those rights are. What seems clear is that not being a member of the human species cannot legitimately be cited as a reason for disqualifying animals as holders of the right to have rights. After all this right, like all rights, is not an inherent property of human beings but rather the product of the performative act of claiming and the institutions that distribute citizenship. No doubt, we might think that animals cannot perform the act of claiming any rights and, more generally, cannot actively contribute to the construction of a political community, since they lack the human capacity for speech and action.67 However, Tobin Siebers has already explained why a lack of standard linguistic competency cannot be taken as a reason for denying this right to disabled human beings.68 By the same token it is difficult to see how the incapacity for human speech could be used to legitimately deny animals this same right.69 In sum, although Arendt herself obviously intended the right to have rights to extend to all, but only all, members of the human species, non-human animals present an exemplary case of individuals who bear the right that makes all other rights possible.
This chapter has been an attempt to think through the question: Who are the subjects of the right to have rights? I think it is fair to say that we have ended up at a place that few would have anticipated, indeed, a place that many Arendtians and many supporters of radical democratic politics might even find strange. Understanding how we got here is made easier, however, if we see Arendt’s phrase the “right to have rights” as part of her inventive version of the traditional story that political theory tells about the formation of political communities from out of the state of nature.
In The Origins of Totalitarianism Arendt invokes the state of nature—traditionally the condition in which human beings dwelt before the existence of instituted political communities—as a way to describe the condition of people excluded from membership in a political community. “Inside the civilized world, in which we normally live and which within our century has extended itself over the whole earth,” she writes, “the state of nature … is embodied in the stateless and rightless, who, as they have been expelled from all human communities, are thrown back on their natural givenness, and on it only.”70 Whereas for early modern political theorists the state of nature was generally admitted to be a fiction, Arendt knows that the state of nature is in our time all too real for millions of people. Her analysis of the predicament of fundamental rightlessness, however, serves the same function as the state of nature did for earlier political theorists: it was a platform on which to pose questions about the principles on which political community should be formed and, in doing so, envision the construction of polities more just than those that presently exist. In the “Concluding Remarks” to the first edition of The Origins of Totalitarianism, Arendt openly announces that in order to address the problem of rightlessness, we need a large-scale, even revolutionary redesign of our political communities. “Only a consciously planned beginning of history,” she asserts, “only a consciously devised new polity, will eventually be able to reintegrate those who in ever increasing numbers are being expelled from humanity and severed from the human condition.”71 By inventing the right to have rights, as the very first right needed by those expelled from political community, Arendt articulated one of the fundamental political principles that should guide this radical transformation of our polities.72
What she leaves for us to answer is the question of which individuals among us have a right to membership in a community in which they can enjoy certain rights. In this chapter I have not presented any reasons why animals should be included in the ongoing project of democratic politics. Focusing on the formal dimensions of the subject of the right to have rights, I have argued only that they can be. However, perhaps an understanding of the formal dimensions summarized by Arendt’s refusal to name the subject in the phrase the “right to have rights” can become a resource for a radical democratic political project that does not premise itself upon a categorical exclusion of the creatures with whom, whether we like it or not, we already share the earth.