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Critical Legal Thinking

— Law and the Political —

Hannah Arendt: The Right to Have Rights

by Leila Faghfouri Azar • 12 July 2019

Key Concept

Hannah Arendt. From ‘Vita Activa: The Spirit of Hannah Arendt’. ZEITGEIST FILMS

Shortly after the adoption of the Universal Declaration of Human Rights

(UDHR) in 1948, the English translation of Hannah Arendt’s essay was
published under the title ‘The Rights of Man: What Are They?’1 This essay
was later incorporated in Chapter 9 of The Origins of Totalitarianism and
became known as one of the most influential critiques of the document. In
her writing, Arendt claims the declaration itself embodies a contradiction:
the declaration requires states to protect the ‘universal’ and ‘inalienable’
rights of all human beings, whereas the modern institution of the state is
grounded on the principle of national and territorial sovereignty. This
paradox, according to her, can only be resolved by the recognition of the
‘right to have rights’ as a juridico-political precondition for the protection
of other human rights. Yet, a precise understanding of the right to have
rights requires more closely examining Arendt’s diagnosis of the paradox of
universal human rights.

First: The Universal Declaration is based on an abstract conception of the

human being, while there is no guarantee for human rights outside the
political community.

For Arendt, the problematic nature of the rights of Man is deeply rooted in
the rise of the nation’s sovereignty against the sovereignty of individuals.
As she puts it, the entire project of universal human rights conceives of the
human being as an entity with no higher authority above herself. From a
historical perspective, the French Declaration of the Rights of Man and
Citizen (1789) was the first document to incorporate an abstract
understanding of the human being. Such an abstract understanding of a
human suggests that she herself—rather than God or natural hierarchies—
should be the source of human law. The UDHR’s claim concerning the
inalienability of the rights follows the same approach and implies that the
prescribed rights are independent of any higher authority. Theoretically
speaking, although the source of law and governance could be reduced to
the individual sovereignty of human beings, the real source of law and
governance is the people of a particular territory and not the individuals. As
a result, the promised ‘inalienable’ human rights can only find their
guarantee in the collective right to self-governance, which is possessed by
the people of a particular territory: the nation.

Within the paradigm of the democratic nation-state, every individual

possesses sovereignty, and since all individuals are assumed to be equal,
they should share their sovereignty in the governing state to prevent one
group from dominating the others. Individual sovereignty can function by
and through the national sovereignty of people. The only possible way for
an individual to have her rights protected, therefore, depends on a larger
encompassing order, which in turn implies membership in a political
community. Although the UDHR introduces an individual who is extracted
from all her social and political relations as the subject of universal and
inalienable rights, it is the individual, in the sense of a member of the
political community, upon whom human rights are founded. On the
domestic level, the nation claims and pursues national sovereignty beyond
that of individuals. However, the nation is bound by no universal law and
acknowledges nothing superior to itself. The first inalienable right of the
members of a nation is to sovereignty, which entails that human rights can
only be protected and enforced as national rights. That said, the state, as
the only institution that is supposed to protect and guarantee the rights of
individuals, becomes an instrument of the nation rather than a protector of
individual rights.

Second: Human rights lose all their signification as soon as an individual

loses her political context.

The inalienability of human rights is premised on the assumption that they

are independent of all nation-states. Nevertheless, this idea was
fundamentally distorted when, in the 20th century, millions of people lost
their nationality, and no authority or institution remained to guarantee
their rights. The appearance of numerous stateless persons and refugees at
the end of World War One demonstrates how the breakdown of the legal
relationship between the state and the stateless results in their exclusion
from the domain of citizenship and, hence, the legal domain of human
rights protection. Because the nation-state is the only juridical authority
that can effectively acknowledge and ensure human rights, the whole
human rights discourse loses its significance for those who, as a result of
expatriation and emigration, cease to belong to any nation-state. Therefore,
whoever ceases to count as a citizen of a particular state loses not only her
civil rights in that particular state, but also—paradoxically—her universal
and inalienable human rights. This, in turn, proves that rights are, in fact,
‘alienable’ from human beings when they lose their political context.
Arendt uses this historical evidence to affirm that the Universal
Declaration, despite its formal legal language, presupposes the human
being to be primarily ‘a member of an ordered political community’—a
citizen and not an individual who is extracted from her political context.

Third: The right to have rights should be recognized as a precondition for

the protection of every human right.

Arendt locates the particularity of the human, as a member of a political

community, in the condition that allows her to act as a political and
linguistic being. Here, the political aspect conforms to the existential
condition of one who, by definition, lives in a community, while the
linguistic aspect is related to the human power of speech and thought.
Arendt claims the dignity of the human simply rests on her politico-
linguistic existence, namely, her capacities of speaking, judging, and acting.
These capacities essentially emerge and develop through, with, and vis-à-
vis other human beings. Such a fundamental ontological condition finds its
signification when and where the human acquires her ability to speak, act,
and think by virtue of being political.

The emergence of modern human rights and the development of related

declarations within the paradigm of nation-states implies that belonging to
a political community is needed for the realization of the fundamental
conditions of a dignified human life and, hence, the effective protection of
‘human’ rights. In short, human rights are ‘the rights of members’: those
who are already considered as members of a political community.
Therefore, Arendt suggests that there should be a human right to belong to
a political community for all human beings as a precondition for the
protection of other human rights. To put it differently, human rights need
to be considered first as the right to membership in some kind of political
community, rather than as the mere rights of those who already belong to a
political community.

Arendt’s critique of human rights and the idea of the right to have rights
have received a vast reception in critical legal and political theory. For
example, Giorgio Agamben, in a radicalized reading of Arendt, has
introduced ‘the figure of the refugee’ as a ‘limit concept’ to rethink the
boundaries of the political community under the paradigm of the nation-
state, and as a potential means of moving beyond the institution of
subjective rights.2 Jacques Rancière has offered a critical reading of Arendt
and fundamentally challenged her distinction between the political life of
the citizen (bios politikos) and the non-political life of the human (zoë). As
Rancière has put it, such a distinction precludes the possibility of claiming
the right to have rights for those who are deprived of a political life and
renders the rights of man either ‘void’ or ‘a justification for humanitarian
interventions’.3 But in an affirmative reading of Arendt, Christoph Menke
has suggested that her conception of ‘human dignity’ could open a
fundamental possibility to overcome the human rights crisis. Such a victory
happens if the entire project of human rights re-establishes itself first on an
anthropology of ‘a politico-linguistic form of life’, and second on an idea of
subjective rights informed by the experiences of what is the ‘right’ thing for
human beings.4
Leila Faghfouri Azar is PhD candidate in Philosophy of Law at the
University of Amsterdam, Paul Scholten Centre for Jurisprudence.

Call for contributions to ‘Key Concepts’.

Main reference: Arendt, Hannah.  The Origins of Totalitarianism. New

ed./with added pref. New York, NY: Harcourt Brace Jovanovich, 1973.
Print.

1. The essay was first published in 1946 as a response to Hermann Broch’s

project for an ‘International Bill of Rights’, and was republished both in
German and English in 1949. See: Hamacher, W. & Mendoza-de Jesus, R.,
(2014), ‘On the Right to Have Rights: Human Rights; Marx and Arendt’,
The New Centennial Review, Vol. 14(2), pp. 169–214. ↩
2. Agamben, G., (2008). Means without end: Notes on politics. Minneapolis,
Minn: University of Minnesota Press. ↩
3. Ranciere, J., (2004), ‘Who Is the Subject of the Rights of Man?’,  South
Atlantic Quarterly, 103(2-3), pp. 297–310. ↩
4. Menke, C., (2007), ‘The ‘Aporias of Human Rights’ and the ‘One Human
Right’: Regarding the Coherence of Hannah Arendt’s Argument’,   Social
Research. Vol 74(3), pp. 739-762. And, Menke, C., (2014). Dignity as the
right to have rights: Human dignity in Hannah Arendt. In M. Düwell, J.
Braarvig, R. Brownsword, & D. Mieth (Eds.), The Cambridge Handbook of
Human Dignity: Interdisciplinary Perspectives, pp. 332-342. ↩

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  2 comments for “Hannah Arendt: The Right to

Have Rights”

Ahmad M. H. Shboul
14 July 2019 at 11:34 am