Hannah Arendt and the Law

383 Pages·2012·1.52 MB·English

by  Marco Goldoni

HANNAH ARENDT AND THE LAW
This book fills a major gap in the ever-increasing secondary literature on Hannah
Arendt’s political thought by providing a dedicated and coherent treatment of the
many, various and interesting things which Arendt had to say about law. Often
obscured by more pressing or more controversial aspects of her work, Arendt
nonetheless had interesting insights into Greek and Roman concepts of law,
human rights, constitutional design, legislation, sovereignty, international tribu-
nals, judicial review and much more. This book retrieves these aspects of her legal
philosophy for the attention of both Arendt scholars and lawyers alike. The book
brings together lawyers as well as Arendt scholars drawn from a range of disci-
plines (philosophy, political science, international relations), who have engaged
in an internal debate the dynamism of which is captured in print. Following the
editors’ introduction, the book is split into four Parts: Part I explores the concept
of law in Arendt’s thought; Part II explores legal aspects of Arendt’s constitutional
thought: first locating Arendt in the wider tradition of republican constitutional-
ism, before turning attention to the role of courts and the role of parliament in
her constitutional design. In Part III Arendt’s thought on international law is
explored from a variety of perspectives, covering international institutions and
international criminal law, as well as the theoretical foundations of international
law. Part IV debates the foundations, content and meaning of Arendt’s famous
and influential claim that the ‘right to have rights’ is the one true human right.
Volume 4 in the series Law and Practical Reason
Law and Practical Reason
The intention of this series is that it should encompass monographs and collec-
tions of essays that address the fundamental issues in legal philosophy. The foci
are conceptual and normative in character, not empirical. Studies addressing the
idea of law as a species of practical reason are especially welcome. Recognising
that there is no occasion sharply to distinguish analytic and systematic work in
the field from historico-critical research, the editors also welcome studies in the
history of legal philosophy. Contributions to the series, inevitably crossing disci-
plinary lines, will be of interest to students and professionals in moral, political,
and legal philosophy.
General Editor
Prof George Pavlakos (Antwerp and Glasgow)
Advisory Board
Prof Robert Alexy (Kiel)
Prof Samantha Besson (Fribourg, CH)
Prof Emilios Christodoulidis (Glasgow)
Prof Sean Coyle (Birmingham)
Prof Mattias Kumm (New York and Berlin)
Prof Stanley Paulson (St Louis and Kiel)
Prof Joseph Raz (Columbia Law School)
Prof Arthur Ripstein (Toronto)
Prof Scott Shapiro (Yale Law School)
Prof Victor Tadros (Warwick)
Editorial Assistant
Triantafyllos Gouvas (Antwerp)
Volume 1: The Normative Claim of Law
Stefano Bertea
Volume 2: Community and Collective Rights: A Theoretical Framework for
Rights held by Groups
Dwight Newman
Volume 3: N ew Essays on the Normativity of Law
Edited by Stefano Bertea and George Pavlakos
Hannah Arendt and the Law
Edited by
Marco Goldoni
and
Christopher McCorkindale
OXFORD AND PORTLAND, OREGON
2012
Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
Telephone: [phone]
Fax: [phone]
E-mail: [email protected]
Website: http://www.hartpub.co.uk
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: [phone] or toll-free: (1) 800 944 6190
Fax: [phone]
E-mail: [email protected]
Website: http://www.isbs.com
© The editors and contributors severally 2012
The editors and contributors have asserted their right under the Copyright, Designs
and Patents Act 1988, to be identified as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the prior
permission of Hart Publishing, or as expressly permitted by law or under the terms
agreed with the appropriate reprographic rights organisation. Enquiries concerning
reproduction which may not be covered by the above should be addressed to
Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-143-6
Typeset by Compuscript Ltd, Shannon
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
Foreword
Richard J Bernstein
When Hannah Arendt died in December 1975, she had a small group of admirers
and a much larger group of vociferous critics. The stormy controversy provoked
by the publication of Eichmann in Jerusalem in 1963 continued to overshadow vir-
tually everything else she had written or done. Outside of the United States and
Germany she was barely known and rarely discussed in intellectual circles. Today,
almost 40 years later, the situation has radically changed. There is scarcely a place
in the world where there aren’t enthusiasts and critics of Arendt—from Helsinki
to Beijing, from Belgrade to Lima, from Dublin to Seoul. She is now considered
to be one of the major and most provocative political thinkers of the twentieth
century. Both her advocates and her critics write passionately about her. What
is it about Arendt that elicits such striking reactions? How is one to account for
her ever-growing popularity? I don’t think there are any simple explanations, but
let me suggest one key reason. Arendt, by her own account, was an independent
thinker (Selbstdenker). She did not belong to any school or associate with any domi-
nant ideology. She wasn’t a Marxist, liberal or communitarian. She resisted any
simple classification as a left or right thinker, a radical or a conservative. Neither
was she simply a philosopher, political theorist, literary critic or a journalist. She
defied any and all classifications. But she grappled with some of the most serious
issues of her (and our) time, including totalitarianism, evil, war, revolution, vio-
lence, power, and the meaning of action and politics. Arendt is an exemplar of a
contemporary intellectual who was not afraid to take on the most pressing issues,
to think about them in fresh ways and to bring all her intellectual resources—
philosophy, political theory, literature, and history—to illuminate them. She was
never afraid to express her strong views on controversial questions. One of her
favorite phrases was ‘thinking without banisters’ (denken ohne Geländer)—and this is
what she so eminently practised.
The word that I associate with Arendt’s writings is ‘fecundity’. She perfected
the literary form of the essay—many of her books read like a series of loosely
connected essays. But her essays are always packed with meaning—and one can
always make new discoveries in careful reading and rereading. This fecundity
has been reflected in the reception of her thinking and the growing body of
international scholarship. There have been critical discussions of her reflections
on imperialism and totalitarianism; politics and society, labour, work and action;
thinking, willing and judging. There have been scholars who have focused on the
ways in which she has appropriated and has been influenced by Socrates, Plato,
vi Foreword
Aristotle, Augustine, Kant, Nietzsche and Heidegger. But with a few notable
exceptions there is one topic in Arendt that has not been examined in a sustained
and systematic manner—her thinking about law, jurisprudence and the creating
of constitutions. This neglect is striking, because there is scarcely a major book or
essay of Arendt that doesn’t deal with some aspect of the law. From her earliest
to her latest work, this was clearly one of her most central concerns. And typically
she discusses law in novel and imaginative ways. Let me mention just a few of the
many ways in which she probed legal and juridical issues. Her discussion of law
pervades The Origins of Totalitarianism. She has a deep concern with how the major
political catastrophes since the First World War have created masses of people
who are no longer protected by law and are excluded from political communi-
ties. This is what led to her critique of abstract appeals to human rights and her
insistence that the fundamental right of human beings is ‘the right to have rights’.
When she explores the role of the concentration and extermination camps in Nazi
totalitarianism she emphasises how the ‘manufacture’ of living corpses begins
with the killing of the ‘juridical person’. There are no rights in the camps. Arendt
explores the way in which totalitarianism corrupts the idea of law when it appeals
to the laws of history and nature. Law is equally important in her discussion of
polis in The Human Condition—for law in prepolitical condition forms the space of
appearance in which political action takes place. In her Introduction into Politics she
examines the limitations of the Greek polis and the differences between the Greek
nomos and Roman lex, which is based on treaties and alliances. She argues that
the Romans introduced a new concept of law that became the basis of Western
European law. And, of course, in Eichmann in Jerusalem there is a constant reflec-
tion on law and its limits. Arendt argued for the need for international tribunals
and yet defended the right of Israel to try Eichmann. Throughout her ‘report’
she questions whether any legal system is adequate to try the crimes of the Nazis.
And in her postscript she reflects her understanding of ‘crimes against humanity’.
In On Revolution, she understands the American Revolution as culminating in the
writing and ratification of the Constitution. It is the ‘constituting act—the act by
which a people … constitutes itself into a body politic’ that she emphasises. She
argues that part of the reason for the ‘success’ of the American Revolution is the
long pre-revolutionary tradition of ‘covenants and agreements’ dating back to
the Mayflower Compact. Throughout her writings Arendt returns over and over
again to Montesquieu and his understanding of the ‘spirit of the laws’. In her
famous essay ‘Civil Disobedience’ she argues that the establishment of civil dis-
obedience in the United States ‘might be the best possible remedy for the ultimate
failure of judicial review’.1 These are just a few of her many rich discussions of
law and jurisprudence. I emphasise what I said earlier, virtually all of her writings
deal with some aspect of the law.
1 H Arendt, ‘Civil Disobedience’ in Crises of the Republic (New York, Harcourt Brace, 1972) 101.
Foreword vii
This is the first collection of essays to be dedicated exclusively to Hannah Arendt
and the law. The editors have gathered papers from an outstanding group of
international scholars who come from a variety of disciplines. These essays are
at once appreciative, incisive and critical. Collectively they explore many of
‘thought trains’ that constitute Arendt’s complex, subtle, unconventional and
controversial thinking about law, jurisprudence and the creation of constitutions.
They demonstrate the fecundity and relevance of her thinking about the law for
our own time.
Richard J Bernstein
New School for Social Research

Summary Contents
Foreword ..................................................................................................................v
Richard J Bernstein
Contents .......................................................................................................................xi
Acknowledgements .......................................................................................................xvii
List of Contributors......................................................................................................xix
Introduction ..........................................................................................................1
Chris McCorkindale and Marco Goldoni
PART I: BETWEEN NOMOS AND LEX: THE CONCEPT OF LAW
IN HANNAH ARENDT’S POLITICAL THOUGHT ..................................13
1. Law beyond Command? An Evaluation of Arendt’s
Understanding of Law ...................................................................................15
Keith Breen
2. Between Freedom and Law: Hannah Arendt on the Promise
of Modern Revolution and the Burden of ‘The Tradition’ ..........................35
Michael A Wilkinson
3. Law and the Space of Appearance in Arendt’s Thought ..............................63
Johan van der Walt
4. A Lawless Legacy: Hannah Arendt and Giorgio Agamben..........................89
Vivian Liska
PART II: ON CONSTITUTIONALISM AND INSTITUTIONS ...............................99
5. Arendt’s Constitutional Question ................................................................101
Emilios Christodoulidis and Andrew Schaap
6. The Role of the Supreme Court in Arendt’s Political
Constitution .................................................................................................117
Marco Goldoni and Chris McCorkindale
7. A Constitutional Niche for Civil Disobedience? Reflections on Arendt .....133
William Smith
8. The Search for a New Beginning: Hannah Arendt and Karl Jaspers
as Critics of West German Parliamentarianism ..........................................151
Kari Palonen