All posts by Signe Larsen

An Apology for Philosophy: On the contested relationship between truth and politics





In The Government of Self and Others, Michel Foucault positions himself against the view that the interlinkage of politics and truth in ancient Athens—most notably in Plato’s The Republic—was the birth of a totalitarian conception of politics; an argument that most thoroughly and elegantly has been presented by Hannah Arendt.[1] According to Arendt, the introduction of an “absolute”—such as truth; something indisputable, incontestable and “above the senses”—reduces politics to chains of command and obedience. Hence the realization of truth in politics is only possible in a tyrannical or totalitarian society. Furthermore, Arendt argues, when the idea of an absolute standard for politics is introduced into the shared world of men, anything can serve as “the truth”—race or the classless society—even “the craciest theory that some charlatan might come up with” (2005:3); anything goes and everything is possible. “In other words,” Arendt concludes “the realization of philosophy abolishes philosophy, the realization of the ‘absolute’ indeed abolishes the absolute from the world” (Ibid.).


In contrast to this gloomy picture of the relationship between philosophy and politics stands Foucault’s analysis of the ancient practices of parr?sia, “truth-telling,” as a political life of resistance, critique and contestation. This life of “truth-telling” is not the political life of a statesman but modes of being which constantly, though in different ways, constitute their meaning in relation to politics. What ties all the manifestations of parr?sia together is, however, that none of them, according to Foucault, are concerned with “doctrines,” that is, none of them are concerned with laying out the “content” of politics. Though philosophy becomes meaningful in its relationship to politics, they are not identical to one another: politics and philosophy correlate but they do not coincide: “It is not for philosophy to say what should be done in politics” (Foucault 2010:354).


It is my ambition with this paper to argue that the stark difference between Foucault and Arendt does not reflect as deep a disagreement between the two thinkers. On the contrary, I argue that Foucault and Arendt in their late works and lectures[2] (which none of them lived long enough to complete) reflect a shared interest in understanding how an intellectual life can relate itself to the shared world of a public sphere. This shared interest in “critical thinking” is maybe best expressed in both thinkers’ “obsession” with the political writings of Immanuel Kant. Kant’s political writings play a pivotal role not only in Arendt’s Lectures on Kant’s Political Philosophy but also in The Government of Self and Others, epigraphed by Kant’s short text “An Answer to the Question: What is Enlightenment?”  The shared theme in Arendt’s and Foucault’s late works, I argue, is the relationship between critical thinking and politics.


To argue this point, I have analysed and critically assessed the relationship between politics and philosophy, which Foucault sees manifest in the practice of parr?sia in the Athenian city state.  To understand how and in what ways, according to Foucault, the parr?siastic practices of “truth-telling” relate to and/or engage with politics and political life, I have looked at four “moments” of parr?sia manifested in four figures which all in different ways present important perspectives on the relationship between politics and philosophy: Pericles (“political” parr?sia), Plato (“philosophical” parr?sia), Socrates (“philosophico-ethical” parr?sia) and Diogenes (“ethical” parr?sia).




“Political” parr?sia

Though the idea of truth is central to parr?sia, it is important to understand that the practice of parr?sia is resolutely distinct from a life centred on the contemplation of the truth; the form of life generally associated with Arendt’s conception of the bios teor?tik?s or vita contemplativa. Though philosophy and parr?sia, according to Foucault, become intertwined in ancient Athens, parr?sia is always distinct from contemplation for Foucault. The life of contemplation is that of “the sage,” or, “the wise person” (2011:16ff). The pivotal difference between the sage and the parr?siast is, according to Foucault, that the sage keeps his wisdom to himself: “the sage is wise in and for himself, and does not need to speak” (2011:17).


In contrast hereto, parr?sia is exactly truth-telling (dire-vrai) or free-spokeness (franc-parler) (Foucault 2010:42-43): the emphasis is thus on language and speech. Parr?sia is not so much about the content of the truth; it is a particular way, or particular ways, of telling the truth (2010:52,192). In contrast to the truth of the Platonic ideas which could be contemplated alone by the philosopher, parr?sia cannot exist without language and speech. Thus, parr?sia is an activity that involves more than one person. It is, in some way or another, a public activity which takes place in a constituted political space (2010:192). The nature of this activity and the people involved do, however, take many different forms in Foucault’s sketch of a genealogy of parr?sia.


The practice of parr?sia has, according to Foucault, its origins in politics and “political” parr?sia is therefore historically prior to “philosophical” parr?sia. The practice of parr?sia was, according to Foucault, one of the core principles of Athenian democracy together with—but sharply distinguished from—isonomia and is?goria; principles that are roughly translatable as equality before the law and the equal right to address the assembly for all citizens of Athens (2010:150). Though all Athenian citizens have an equal right to speak (is?goria), only a small elite, those who are in the foremost rank (pr?ton zugon) and of extraordinary personal and moral qualities, claim their right—and are meant to claim their right(!)—to address the assembly (2010:188, 300, 318). Where is?goria (at least formally) is for everyone, parr?sia is for the few. These few are those who aspire to ascend in the ranks of society through the agonistic game of recognition in order to take charge of the city through their parr?siatic practice (2010:156). The game of truth-telling is the institutional framework designed in order to select the genuine elite among the competitors.


Thus, ancient democracy has an ambivalent relationship to political elitism: on the one hand, the right to speak is equally distributed (is?goria), on the other hand, not everyone can speak (parr?sia) (2010:183). Democracy and parr?sia therefore relate to each other in a paradoxical way: parr?sia is only possible within the formally equal democratic agonistic game of truth-telling, but at the same time parr?sia introduces elitism into democracy completely different from the egalitarian structure of democracy (2010:184). Parr?sia is therefore a threat to democracy. However, at the same time, democracy cannot do without parr?sia since it is the core of the democratic form of government.


Though paradoxical, the game of parr?sia, Foucault argues, is necessary for the survival of democracy. Parr?sia is the institutional framework that allows the political elite to ascend in a legitimate manner in order to take charge of the city (2010:158, 178). Where the institutional framework of modern democracy makes it possible for the political elite to be selected by elections, the institutional framework of ancient democracy had the political elite selected by the agonistic game of parr?sia. This game of truth-telling, which allows for the genuine political elite to take charge of the city through their practice of parr?sia, is what Foucault presents as the core of ancient democracy (2010:180-1). Foucault’s ideal typical example of “political” parr?sia is Pericles as he is represented in his famous speech in Thucydides’ The Peloponnesian Wars (Foucault 2010:179).


In order only to have the genuine political elite ascend in the democratic game of truth telling, the parrh?siast speaks at a very high but uncertain risk which might include ostracism or death penalty. The parrh?siast should therefore find what he wants to say so important that he is willing to risk his life in order to frankly say what he finds to be the truth; an institutional check that one would think discourages most people from addressing the assembly. This is why courage is needed in order to engage in the practice of truth-telling.


The problem is, however, that after the death of Pericles the institutional check of the risk of truth-telling no longer was perceived as successful (Foucault 2010:181). The core of the critique of the fourth and fifth century B.C, but also more generally of the ancient democratic institutional framework characterized by parr?sia, is, according to Foucault, that it cannot discriminate between “good” and “bad” parr?sia. That is, the political practice of parr?sia can be misused by the good rhetorician or the demagogue through flattery or “false truth-telling” (2010:180ff). The problem is that the institutional framework of democracy, constituted in order to have the elite ascend, allows all good speakers to ascend; also those who do not have the extraordinary qualities of Pericles. The game of truth-telling can therefore not distinguish between the rhetorician and the parr?siast. At least, Foucault points out, this seems to have appeared as a problem for the Greeks after the death of Pericles (Foucault 2010:181). A more contemporary formulation of the problem is that of populism: those who have the ability to charm the assembly will be able to take charge of the city.


The problem of the inherent danger of “bad” parr?sia in a democracy is according to Foucault of serious nature for the Athenian democracy because parr?sia is the governmentality of the polis: “If democracy can be governed, it is because there is true discourse” (2010:184). The relationship between democracy and parr?sia is thus paradoxical in yet another way: on the one hand, democracy cannot exist without parr?sia, but on the other hand, the equality of democracy gives birth to the “bad” parr?sia that is a constant threat to the survival of parr?sia within democracy. Thus democracy and parr?sia, though mutually constitutive, present inherent threats to one another. In light of Foucault’s narrative, “political” parr?sia seems doomed to fail.



The myth of the ideal city

One question seems to have been of particular importance in context of the problematic relationship between democracy and parr?sia: the question of whether an ideal city exists in which the truth can appear without the dangerous game of parr?sia (Foucault 2010:195)? This question is of course extensively dealt with in Plato’s the Republic, which concluded that the best city is that in which the philosophers rule; the conception of politics in which Arendt sees the birth of Western totalitarian thought manifested.


Interestingly enough, however, Foucault argues that Plato’s understanding of the relationship between truth and politics should neither be found in the Republic nor in the Laws. These works were, according to Foucault, not “serious” philosophical works and they should “be handled as cautiously as a myth” (Foucault 2010: 253). Though it is a quite astounding thesis that the Republic and the Laws are “unserious” works, it is even more curious that Arendt, though for different reasons, presents the same argument in her Lectures on Kant’s Political Philosophy. Arendt sites Pascal’s words as a possible exaggeration that however does not “miss the mark”:


We can only think of Plato and Aristotle in grand academic robes. They were honest men, like others, laughing with their friends, and when they wanted to divert themselves, they wrote the Laws or the Republic, to amuse themselves. That part of their life was the least philosophic and the least serious. The most philosophical [thing] was to live simply and quietly. If they wrote on politics, it was like laying down rules for a lunatic asylum; if they presented the appearance of speaking of great matters, it was because they knew that the madmen, to whom they spoke, thought they were kings and emperors. They entered into their principles in order to make their madness as little harmful as possible” (Arendt 1992:22).   


According to Arendt, Plato wrote the Republic, in order to justify that the philosophers became kings, not because they would enjoy to rule, but in order that they should not be ruled by worse men than themselves that would interfere with the quiet and absolute peace that constituted the best conditions for the philosophical life (1992:21). Even for Aristotle, Arendt argues, the bios politicos was there for the sake of the bios the?retik?s (Ibid.). The purpose of politics was thus not to realize a philosophical doctrine but to create a possibility for, or merely not intervene in, the life of the philosophers: the birth of totalitarianism in the Republic must therefore be understood, not as a realization of philosophy, but as a problematic means to the philosophical life.


What Foucault and Arendt seem to agree on is that the core of philosophy for the Greeks was not doctrine (math?sis); a set of principles that could be learned and applied. For this reason, as Foucault points out, Plato stressed that philosophy could not be written down (2010: 252); philosophy was an activity or a way of life. It is not, and ought not to be, the task of philosophy to prescribe the content of politics. This is why the Republic and the Laws, according to Foucault, should be dealt with as cautiously as the myth: “So what philosophy has to say will certainly be said through this nomothetic game, as it is through the mythic game, but in order to say something else” (2010: 253). Philosophy can thus not give an answer to the question: “what is to be done?” This does, however, not mean that philosophy does not relate to politics, according to Foucault. On the contrary, Foucault argues, the test of philosophy’s reality, in the case of Plato, is whether philosophy “escapes the danger of being no more than logos” (2010: 255).




“Philosophical” parr?sia

The seriousness of the Platonic philosophy is, according to Foucault, to be found in Plato’s Letters (Foucault 2010: 254-5). The letters are important in order to understand how philosophy was perceived not merely as a reflection upon politics but also an intervention into politics (2010: 210); something “more” than logos. Foucault is especially interested in letter VII, in which Plato narrates his journey and séjour at the court of the Syracusian tyrant Dionysius. Letter VII is, according to Foucault, a part of a general shift of the political scene from the agora and the ?kkl?sia towards the court of the sovereign (the prince’s soul) (Ibid.). Parr?sia, therefore, cannot be understood as praxis peculiar to the democratic form of government; “the problem of parr?sia arises under any form of government” (Foucault 2010: 212).


This shift away from the “political” parr?sia of democracy is explained by Plato (or whoever is the author) in letter V: bad parr?sia has corrupted the Athenian population to such an extent that they are beyond the scope of reform (2010: 213). According to Foucault’s reading of letter VII, the shift is, however, not merely away from democracy but also from political action as such. In light of Plato’s negative experiences both with oligarchy and democracy (exemplified by the unjust treatment of Socrates both by the thirty tyrants and by the ekkl?sia), Plato realized that political action and parr?sia no longer were possible (Foucault 2010: 216-7).


Plato, Foucault argues, therefore turns to a new parrh?siastic praxis; the education of the prince’s soul by the philosopher in the role of the counsellor. The philosophical ergon thus become that of the educator or counsellor in order to make the king into a philosopher (Foucault 2010: 218): “there will be no cessation of evils for the sons of men,” it is stated in letter VII “till either those who are pursuing a right and true philosophy receive sovereign power in the States, or those in power in the States by some dispensation of providence become true philosophers.”[3]


It is here important to clarify that the role of the philosopher as a parr?siastic advisor does not consist in stating what the content of politics should be; the philosopher is not a “political expert.” The education of the Prince’ soul, the philosophical ergon, is the education, not primarily in math?sis (content of knowledge, or a philosophical doctrine) but in ask?sis (a mode of life, the philosophical life): “the reality of philosophy is its practice” (Foucault 2010:219,242,247).This practice is however not primarily philosophy as discourse (logos) but the work on oneself, or a relationship of self to self: “The reality of philosophy is the work of self on self“ (2010:242).The role of the philosopher is, so to speak, not to teach the prince what he has to do, but who he has to be (Ibid.).


Philosophical parr?sia is the education of the prince’s soul in the philosophical mode of life, ask?sis, which is a government of oneself in order make the prince become a philosopher (Foucault 2010:219). In this way, philosophy and politics correlate in the education of the prince’s soul. Philosophy and politics ought not to coincide in a doctrine (Arendt’s fear): “I think that the misfortune and ambiguity of the relations between philosophy and politics,” Foucault writes “stems from and are no doubt due to the fact that philosophical veridiction has sometimes wanted to think of itself in terms of (…) philosophical doctrine […] Philosophy and politics must exist in relation, in a correlation; they must never coincide. This, if you like, is the general theme that we can extract from Plato’s text” (2010:289).The only place where philosophy and politics coincide is in the soul of the well-educated prince (2010:293). This is, according to Foucault, the genuine Platonic meaning of the “philosopher king” and the true meaning of the “mythical game” of the Republic. 




“Philosophico-ethical” parr?sia

In his discussion of Socrates as a parrhesiast, Foucault develops the conception of philosophical parr?sia as a mode of being, a relation of the self to the self, in more detail. One important aspect of the philosophical selfhood, according to Foucault, is expressed in how the conflict between philosophy and rhetoric is portrayed in Plato’s the Apology (Foucault 2010:310). This conflict is important for Foucault because he argues that a fight over the monopoly of parr?sia took place between philosophy and rhetoric (2010:304). Where rhetoric is a skill (tekhn?) which allows the speaker to persuade his audience independently of the rhetorician’s own beliefs, the philosophical speech takes its meaning, not from a relationship to the audience, but a relationship to the speaker himself. For this reason, Socrates describes himself as a truth-telling man without tekhn? (Foucault 2010:312). This non-technical form of speech is characterized by a harmony of truth (al?theia) and the belief (pistis) of the speaker. Where the rhetorical language is crafted to produce effects in the audience, the philosophical parr?sia is a frank statement of what the speaker believes to be the truth (Foucault 2010:314-315). Philosophical parr?sia is thus characterized by an authentic relationship to the self; a care for the self. It is characterized by a harmony between speaking and living; a life in harmony with virtue (Foucault 2011:169).


It is this care for the self that makes Socrates refuse to commit injustice, which he argues, that he has been asked to do both under the rule of the thirty tyrants and in the Athenian democracy (Foucault 2010:318). In both cases Socrates resists; a resistance that has become the ideal typical example of individual philosophical resistance hereafter (Foucault 2010:216). This refusal to comply is, according to Foucault, a manifestation of Socratic parr?sia (2010:319). The Socratic parr?sia is negative in the sense that it is a refusal to act and speak in the political field (as Pericles did). Socratic parr?sia nevertheless receives its meaning in relation to politics; in a refusal to commit an injustice. With Socrates, “philosophical” parr?sia shifts towards a manifestation of “ethical” parr?sia; Socratic parr?sia is “philosophico-ethical.”[4]


Socratic parr?sia is, as Foucault notes, a quite “discrete” form of parr?sia because it exactly is an abstention from action (2010:319). Socratic parr?sia is an act of what we today know as civic disobedience: when ordered to arrest a man, Socrates does not comply and returns home openly and publicly (Foucault 2010:320). What is at stake is thus not discourse (logos) but action (ergos): “After all, parr?sia may appear in the things themselves,” Foucault writes, “it may appear in ways of doing things, it may appear in ways of being” (2010:320).


“Philosophico-ethical” parr?sia is, however, for Socrates more than the refusal of becoming a subject of an unjust political action. The philosophical parr?sia which Socrates lives—“the task he had decided to pursue until his last breath, the task to which he had bound his life, and for which he refuses any payment or reward” (Foucault 2010:326)—is to listen to anyone, rich as poor, and help them understand that they should not care about wealth or glory, but about themselves. And, that caring about themselves primarily consists in “knowing whether or not one knows what one knows” (Ibid.). That is, philosophical parr?sia is for Socrates to cure people of the common and false opinion that corrupt their souls and have them think for themselves (Foucault 2011:105ff). A true life is a life free of prejudice. The site of philosophical parr?sia has thus shifted from the prince’ soul to the lives and souls of all the people Socrates met. Socratic parr?sia is thus practicing philosophy itself, caring for oneself and telling others to care for themselves (Foucault 2011:111-112).


The core of Socratic parr?sia, as for the Platonic parr?sia, is not the question of the content of politics but the question of the political subject: “Philosophy’s question is not the question of politics,” Foucault writes “it is the question of the subject in politics” (2010:319). What is at stake in Socratic parr?sia is not the safety of the city (as in the Periclesian parr?sia at the dawn of the Peloponnesian Wars). What is at stake is the integrity of the philosophical life as true life. With Socrates’ refusal to commit an injustice and his commitment to listen to anyone and help them to live a true life, parr?sia is no longer a particular way of speaking the truth; parr?sia is a way of living the truth through practices on the self by the self: “Being an agent of the truth,” Foucault writes, “and as a philosopher claiming for oneself the monopoly of parr?sia, will not just mean claiming that one can state the truth in teaching, in the advice one gives, and in the speeches one makes, but that one really is in fact, in one’s life, an agent of the truth” (2010:320).




“Ethical” parr?sia

The understanding of philosophical parr?sia as a true life, or beautiful life, is even more thoroughly manifested in the life of the Cynics with Diogenes (most often referred to as “Diogenes the Cynic” or “Diogenes in the Barrel”) as the prime example.  To underline this, Foucault refers to a description by Diogenes Laertius of Diogenes the Cynic: when Diogenes is asked what the most beautiful in men is, he answers: parr?sia (Foucault 2011:166). For Diogenes, the true life is the exercise of parr?sia. The Cynics’ parr?sia is the full manifestation of “ethical” parr?sia because they barely have a “doctrine,” that is, the theoretical framework of the cynics is rudimentary and that is exactly something they take pride in (Foucault 2011:165,204). What is at stake in Cynic philosophy is not math?sis but ask?sis; what is at stake is the true and beautiful life.


Though the life of the Cynics can be understood as closely related to Socratic parr?sia as living and speaking in accordance with a conception of the true life (Socrates’ refusal to become an unjust man), the Cynics mode of life is more than a harmonic life in accordance with certain virtues such as temperance, courage or wisdom (Foucault 2011:169). The cynic life is a highly codified life; a true and beautiful life. The core of this life is that one practice the “scandal” of truth by words and deeds.


The cynic life is a life of renunciation of material wealth: “The Cynic is the man with the staff, the beggar’s pouch, the cloak, the man with the sandals or bare feet, the man with the long beards, the dirty man” (Foucault 2011:170). The Cynic has no family, no household, and most astonishingly, no country (Ibid.). This renunciation of everything that for the Greeks signified a dignified life makes the Cynic independent and free. Since the Cynic does not depend on anyone his is “sovereign” of his own life (Foucault 2011:271, 307ff). No one can take his property because he does not own anything; no one can ostracise him from his fatherland because he has none.


This extreme renunciation of material wealth gives the Cynic the freedom to speak the truth to anyone: the life of the Cynic is the precondition for the exercise of parr?sia (Foucault 2011:171). The scene of parr?sia shifts with the Cynic away from the ?kkl?sia (Pericles), the soul of the prince (Plato), the people of Athens (Socrates) to “humanity” (Cynics). The Cynic is the “scout” or “spy” for humanity: “if one wishes to be humanity’s spy,” Foucault writes “[and] tell humanity frankly and courageously all the danger it might face and where its true enemies are to be found, then one must have no attachments” (2011:170) .The cynic life is a manifestation of what life is in its independence. For the Cynics, true life is therefore not merely life in accordance with principles; for the Cynics, bios as such becomes a manifestation of truth (Foucault 2011:172). For the Cynics, parr?sia is therefore more truth-living than truth-telling. Truth is manifested in ask?sis, discipline, and “the bareness of life” (Foucault 2011:173).


Since math?sis plays next to no role in Cynic parr?sia, the only way to learn Cynic philosophy is by living a cynic life. For the Cynics, teaching philosophy did not consist in passing on knowledge but in moral training (Foucault 2011:204). Foucault gives an example hereupon by referring to the way in which Diogenes taught the children of Xeniander: Diogenes taught the children to wait on themselves without calling upon servants or slaves, he taught them to wear simple clothes and walking without shoes, he taught them to walk on the streets and keep their eyes low, he taught them to hunt their own food etc. (Foucault 2011:204-5) In this way, the children went through an “apprenticeship in independence” (Ibid.). The Cynics are for this reason, according to Foucault, one of the first manifestations of philosophical “heroism”: the Cynic is one to follow and imitate if one desires to live a true life; a genuinely sovereign life. The cynic life is true life as the government of oneself.




Parr?sia as ontology of the present

Though Foucault spends the vast majority of the two last lectures he gave at the Collège de France on the topic of ethics in ancient Athens, it seems to me that these lectures should be read, not primarily as a contribution to the history of ancient philosophy, but as a part of Foucault’s general project of writing an ontology of the present or an ontology of ourselves (Foucault 1984). This question of the present—the “what is happing today?” or “what is the meaning of our present reality?”—is according to Foucault the historically new question which Kant as the first thinker raised in “What is Enlightenment?”; the text that Foucault chose as the epigraph of The Government of Self and Others (2010:11ff).


The epigraph is at first glance peculiar: how can we understand the significance of “What is Enlightenment?” and the question of the ontology of the present as the epigraph to a lecture series on the praxis of parr?sia in ancient Athens? I think the answer can be found towards the end of The Government of Self and Others where Foucault returns to modern philosophy and Kant’s philosophy in particular: “if I began this year’s lectures with Kant,” Foucault writes “it is inasmuch as Kant’s text on the Aufklärung is a certain way for philosophy, through the critique of the Aufklärung, to become aware of problems which were traditionally problems of parr?sia in antiquity” (Foucault 2010:350).


In modern philosophy, and especially, in Kant’s writings on the Enlightenment and the French Revolution, Foucault sees a reclamation of the praxis of parr?sia by philosophy in the form of critique (Foucault 2010:353-4). There is however, according to Foucault, two openings of philosophical parr?sia as critique in Kant’s writings, which according to Foucault are mutually exclusive. Firstly, there is the critical form of thinking which according to Foucault is opened with the three Critiques, but first and foremost by the first Critique; a critical form of thinking that asks to the conditions for the possibilities of true knowledge (Foucault 2010:20). This, according to Foucault, is the opening of what we today call analytical philosophy (Ibid.) Secondly, there is a critical form of thinking, opened by Kant in his so-called “political writings” on the Enlightenment and the French Revolution, which, according to Foucault asks to the question of the ontology of the present or the ontology of ourselves (Ibid.).


It is this second form of critical thinking which Foucault wants to associate himself with. According to Foucault, philosophy in the form of critical thinking of the ontology of the present is a parr?siastic praxis by way of its reinterpretation of three pivotal aspects of the parr?sia of ancient Athens: the relationship between philosophy and politics in critique, the frankness of critique with regard to prejudice and illusion, and critical thinking as a mode of being.


Firstly, philosophy as critique is, as the ancient praxis of parr?sia, not a prescription of the content of politics. However, as in the case of ancient philosophy, critique constitutes its reality in relation to politics: “It is not for philosophy to say what should be done in politics,” Foucault writes “[philosophy] has to exist in a permanent and restive exteriority with regard to politics, and it is in this that it is real” (2010:354). Philosophy consists in questioning the significance of events, as Kant did with regard to the French Revolution. Secondly, the role of critique is “constantly [to] practice its criticism with regard to deception, trickery, and illusion” (2010:354). As for the Socratic praxis of parr?sia, it is the role of philosophy as critique to ask to the prejudices that haunt “common opinion,” that is, to make us reflect upon whether we really know what we think that we know. Thirdly, philosophy as critique is always a way of life, ask?sis, which implies the possibility of the transformation of the subject. Critique is always also self-critique, care of self and government of self. Critique following the Socratic manifestation of parr?sia always and constantly implies the possibility that I, myself, might be wrong.




Thinking and public life

In addition to the reasons stated above, I think that Foucault chose Kant’s “What is Enlightenment?” because it opens the question of the public: “One of the interesting things about this text […] is that it puts the notion of the public, to which the publication is addressed, at the very heart of its analysis” (Foucault 2010:11ff). The reason this is an important question is that it points to another pivotal theme of parr?sia, namely, that philosophy as critique can never be a solitary praxis. The ultimate meaning of philosophy as critique persists in the relationship of the self to others and thereby a critical relationship to oneself. Critical thinking as parr?sia has to be a transformative praxis both with regard to self and others. This, I think, is part of what is meant by Foucault’s famous last cryptic words in The Courage of Truth: “there is no establishment of the truth without an essential position of otherness” (2011:326).


This idea of the inherent otherness of critical thinking is a pivotal theme for Arendt in her late works. Though most of her writings are on politics and political life, and though she is well-known for a rigid distinction between the bios politikos and the bios the?r?tikos, several of her most famous works on politics address the relationship between thinking and politics in a quite different way.  If Arendt ever believed that “the life of the mind” was a passive mode of being (which I however doubt), she definitely changed her mind before writing The Human Condition; her work on the vita activa. In the final chapter, Arendt addresses the possibilities of action as political freedom in our contemporary world, and surprisingly she concludes that the possibility of action in our contemporary world is to think: “Thought, finally—which we, following the premodern as well as the modern tradition, omitted from our reconsideration of the vita active—is still possible, and no doubt actual, wherever men live under conditions of political freedom” (Arendt 1998:324).


Another notable example for the interconnection of thinking and politics is Arendt’s judgment that the reason that Adolf Eichmann could commit the atrocities that he did was that he lacked the ability to think (Arendt 1971:4). Although Eichmann could recite the categorical imperative he did not have the ability to think; he did not have a critical relationship to himself and his actions (Arendt 2006:123). Thinking then, for Arendt as for Foucault, always receives its reality in relation to something different from itself. As for Foucault, thinking is for Arendt a praxis that involves an inherent otherness, which she famously describes with reference to Socrates as “the soundless dialogue between me and myself” (1971:185). Thinking as well as the government of self imply an internalization of otherness, which becomes visible in our communication of what we do or what we think: “I govern myself,” “I know myself” or “I care for myself.


For this reason, I argue that if one—on the basis Arendt’s argument about the totalitarian aspect of the introduction of truth into politics—would conclude that a radical disagreement exists between Arendt and Foucault, one might miss what I see to be their shared project: the political potentialities of critique and self-critique as parr?sia (Foucault) or thinking (Arendt). What is shared by their writings on these matters is the quite astonishing idea that what we do when we think or even write is something secondary to a dialogue with someone else; it is an internalization of spoken language which always implies a listener. Philosophy and thinking are therefore inherently forms of shared and collective work which receives its meaning in relation to a community of other human beings; whether we call that politics (Foucault) or the public sphere (Arendt) is of less importance.


Foucault and Arendt are both Kantians in the sense that they belong to a tradition of thinkers that ask to the ontology of the present; to whom we are and what the significance of our present moment is. I therefore find it fitting to let Kant be the one to sign this essay with a statement taken from his political writings on the inherent public nature of what we do when we think:


It is said: the freedom to speak or to write can be taken away from us by the power-that-be, but the freedom to think cannot be taken from us through them at all. However, how much and how correctly would we think if we did not think in community with others to whom we communicate our thoughts and who communicate theirs to us! Hence, we may safely state that the external power which deprives man of the freedom to communicate his thoughts publicly also takes away his freedom to think, the only treasure left to us in our civic life and through which alone there may be a remedy against all evils of the present state of affairs” (Arendt 1992:40-41).





Arendt, Hannah. Between Past and Future. (New York: Viking Press, 1961).

—The Life of the Mind One/Thinking. (New York: Hartcourt Brace Jovanovich. 1971).

—Lectures on Kant’s Political Philosophy. (Chicago: University of Chicago Press, 1992).

—The Human Condition. (Chicago: University of Chicago Press. 1998).

—The Promise of Politics. (New York: Schocken Books, 2005).

—Eichmann in Jerusalem—A Report on the Banality of Evil. (London: Penguin Books, 2006).

Foucault, Michel: “What is Enlightenment?” in The Foucault Reader, edited by Paul

Rabinow, pp. 32-50. (New York: Pantheon Books, 1984).

—The Government of Self and Others—Lectures at the Collège de France, 1982-1983. (New York: Picador, 2010) 

—The Courage of Truth—Lectures at the Collège de France, 1983-1984. (New York: Picador, 2011).

Plato, letter VII:


[1] See Hannah Arendt: ”What is Authority?”, in Between Past and Future. New York: Viking Press, 1961, but even more clearly the except from Hannah Arendt’s Denktagebuch, September 1951 in The Promise of Politics. New York: Schocken Books. 2005, p. 3

[2] Arendt’s and Foucault’s lectures which later have been collected and published with respectively the titles Lectures on Kant’s Political Philosophy and The Government of Self and Others I-II, were held respectively at the University of Chicago 1964 and then again at The New School for Social Research 1965-66, and, the at Collège de France 1982-84

[4] In The Government of Self and Others, Foucault mainly describes Socratic parr?sia as “philosophical”, but in The Courage of Truth, where his focus seems to have shifted a bit, he mainly describes Socratic parr?sia as “ethical.” In my reading I hold that Socratic parr?sia are both “philosophical” and “ethical.” For that reason I describe it as “philosophico-ethical”; a term Foucault does not use himself.

The European Constitution: sovereignty, legitimacy and constituent power


“Nowhere is the new series of questions of sovereignty more urgently, vigorously and significantly joint than in the context of the European Union and its relationship with its constituent states”

— Neil Walker, Sovereignty in Transition, vi.


The Constitutional failure of the EU

Since the Constitutional Treaty of the EU failed in 2004 due to its rejection by the French and Dutch electorates, the EU has been thrown into a legitimation crisis. From a purely legal perspective, the rejection of the European Constitution is not necessarily a problem. In legal terms, it is possible to distinguish a democratically sanctioned constitution from legal “constitutionalism,” which, following Michelle Everson and Julia Eisner, can be defined as “a legal process of extrapolation of the values and institutions, which will determine the course of our joint European life [that] proceeds apace, untroubled by all failed political efforts to establish a European polity” (Everson and Eisner 2007:2-3). Although the lack of democratic support for the European Constitution manifested in the negative popular referenda in France and the Netherlands might not be a problem from the perspective of European lawyers and European legal constitutionalism, it does, however, constitute a political problem.


The tension between legal constitutionalism and the lack of a democratically sanctioned constitutional document makes one of the most fundamental political problems of the EU more pressing: the problem of sovereignty. The problem of sovereignty in the EU consists in a fundamental unclearness of where sovereignty resides within the union (regardless of whether sovereignty is understood in the Bodinian tradition as absolute power to command or in the Kelsenian tradition as competence of competencies). One the one hand, the fact that the founding documents of the EU remain only treaties signals that the EU is merely an international agreement among sovereign states. One the other hand, the supremacy of EU laws to national laws as stated by the European Court of Justice (ECJ) signals that the EU enjoys some degree of supranational or quasi-federal sovereignty.


This antinomy is most clearly manifested in the Final Act of the Lisbon Treaty which, though it recognizes the EU as a treaty organization, still declares the primacy of EU laws: ”The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.”[1] In this way, although the Community law of the EU is merely an international agreement, it still overrides national laws in case of a dispute.


The question is how we can understand the political significance of the antinomy, which is engraved in both the constitutional failure of the EU and the legal response thereto in the Lisbon Treaty: how can we understand the antinomy between legal constitutionalism and political or democratic constitutionalism? How can we understand the curious phenomenon of sovereignty in the EU? In what way are the questions of democratic legitimacy, sovereignty and constitutionalism related to one another? What does the lack of democratic legitimacy, expressed in the rejection of the European Constitution, mean for sovereignty in the relationship between EU law and national law? How can we understand the political crisis of the constitutional failure of the EU?


Constitutionalism and political legitimacy

In this essay I will take the first steps towards the development of an analytical model which will make it possible for me to answer these questions. The actual empirical juridico-political analysis of the EU and its constitutional failure lies, however, well outside the scope of this paper. The analytical model developed in this paper is grounded in the concept of constituent power: a concept that in all of its forms approaches the question of constitutions from the perspective of the origins of the founding text and the authority on which it is based.


In contrast to the legal constitutionalism discussed by Everson and Eisner, within the framework of constituent power constitutionalism is understood as a political act of one or more constituencies, rather than as the legal procedures of constitutional lawyers. The point of departure in a constituent power analysis is that law and politics are closely wed with regard to constitutions, since the constitution as a legal text is understood as a product of a political action. In other words, a constituent power analysis of constitutional politics would strongly position itself against a Kelsenian analysis, which would identify legality and legitimacy. Within the framework of constituent power, legitimacy has its source in politics, and according to many of the most prominent thinkers of the constituent power, in democracy. In this way, the framework of constituent power allows for an analysis of the constitutional failure of the EU as a democratic legitimation crisis.


While legality and legitimacy, law and politics, cannot be denied as core elements of the framework of constituent power, the relationship between constituent power and sovereignty is more ambiguous. In this essay I will look at two democratic ideal types of the constituent power that differ drastically with respect to the question of sovereignty. The two models I will look at are based on the French and the American Revolutions and they correspond to two distinct political forms: the federation and the nation-state. As we shall see, whereas the French model of the constituent power is understood as sovereign, the American model of the constituent power is understood as a (temporary) suspension of sovereignty.


Though it is likely that neither of these ideal types apply to the constitutional process of the EU, it is my working hypothesis that these two models will be helpful, since the EU could be conceptualized as a hybrid, somewhere on the spectrum between the nation-state and the federation. In this way, the development of ideal types will provide me with a spectrum or a framework in which we can conceptualize and ask as to the fundamental problems regarding the relationship between constitutional politics, sovereignty and democratic legitimacy with regard to the constitutional failure of the EU.


The two models of the constituent power discussed in this essay can be extracted from the writings of the two most important 20th century theorists of the constituent power: Hannah Arendt and Carl Schmitt. Three significant reasons can be given for a comparison of specifically Arendt and Schmitt in relation to the construction of ideal types of constituent power in the context of an analysis of the relationship between constitutional politics, sovereignty and democratic legitimacy. Firstly, Arendt and Schmitt are both democratic thinkers of the constituent power (though in very different ways), which will allow me to perform an analysis of EU constitutionalism from the perspective of democratic legitimacy. Secondly, Schmitt and Arendt fundamentally disagree upon the relationship between democratic legitimacy and the question of sovereignty, which will allow me to question the relationship between sovereignty and constitutional politics. Thirdly, both Schmitt and Arendt are “groundless” thinkers of the constituent power in that neither of them accepts transcendental foundations as grounds for political legitimacy in general and constitutional legitimacy in particular, which allows for a modern and non-metaphysical perspective on constitutional politics more appropriate for a secular institutional framework like the EU.   

The concept of constituent power is, in the theories of both Schmitt and Arendt, a not unproblematic and maybe not fully resolved response to the problems endemic to the origin and political legitimacy (or authority) of constitutional orders. The problem inherent to constitutions is that, in contrast to ordinary law, a constitution is caught in a vicious circle with respect to its origins and its authority:


Those who get together to constitute a new government are themselves unconstitutional, that is, they have no authority to do what they have set out to achieve. The vicious circle in legislation is present not in ordinary lawmaking, but in laying down the fundamental law, the law of the land or the constitution which, from then on, is supposed to incarnate the ‘higher law’ from which all laws ultimately derive their authority (Arendt 2006:175-6).


The problem is twofold: (1) if the source of legitimacy for ordinary law is the constitution, what is the source of legitimacy of the constitution? (2) If the “founding fathers” of a constitution themselves are unconstitutional, since no law exists to sanction their actions, from where do they derive their authority? The answer given to both of these problems in Arendt’s theory as well as in Schmitt’s is the constituent power of the people.


Though both Arendt and Schmitt seek to give a “democratic” or “popular” answer to the dual problem of constitutional beginnings, they strongly disagree on what that entails. This disagreement, I believe, is tied up with the relationship between constituent power, sovereignty and political form. Following Schmitt and the French model, the source of legitimacy for the constitution and the source of authority of the constitutional actors is the popular sovereignty of the constituent power. What is important to note here is that the constituent power also could be an expression of monarchical sovereignty, i.e., the will of the king, which, following Schmitt, would not qualitatively change the constituent power. Popular sovereignty is for Schmitt nothing but the people’s appropriation of monarchical sovereignty. Arendt agrees with this diagnosis, but contrary to Schmitt she does not endorse this notion of popular sovereignty. For this reason Arendt attempts to formulate a theory of the constituent power that goes beyond popular sovereignty: a non-sovereign notion of the power of the people which she finds manifest in the American Revolution.


On the basis of this disagreement Schmitt and Arendt come to favour two different political forms respectively: the nation-state (exemplified by France) and the federation (exemplified by the US). Interestingly enough, Schmitt and Arendt agree (at least partly) that the political form of the nation-state is the strongest manifestation of sovereignty, and that the political form of the federation (at least temporarily) transgresses sovereignty. Further, the main reason that Schmitt favours the nation-state and Arendt favours the federation is exactly this relationship between political form and sovereignty. Where Arendt argues that the nation-state “is built on quick-sand” and doomed to collapse because it is founded on the unchecked and fluctuating sovereign will of the nation, whereas the federation succeeds in checking power without destroying it, Schmitt argues that the federation is merely a transitory form exactly because the question of where sovereignty is vested is left open. For this reason the federation is destined either to devolve back into a nation-state or to be consolidated into a federal-state like the US we know today.


Two models of constituent power

The French model of the constituent power deserves its name because in the theories of both Arendt and Schmitt it is mainly based on the French Revolution and the writings of Emmanuel Sieyès, who, in What is the Third Estate?, famously made the distinction between constituent power (pouvoir constituent) and constituted power (pouvoir constitué). The constituent power (embodied by the French nation and represented by the Third Estate) is Sieyès’ solution to the dual problem of the unconstitutionality of new constitutional beginnings. The constituent power, Sieyès famously argues, is the source of all constituted power, and for this reason, the will of the nation has the legitimate power to overtrump all constituted power. Thus, according to Sieyes, the will of the nation is always law: “The nation exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself. Prior to the nation and above the nation there is only natural law” (Sieyès 2006:136).


It is on the basis of Sieyès’ understanding of the national will as the origin and authority of the constitution that Schmitt develops his theory of the constituent power: “The [constituent power],[2]” Schmitt writes, “is the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence” (Schmitt 2008:125). This dense sentence contains almost the entirety of Schmitt’s theory of the constituent power. It requires some unpacking, however, to be comprehensible.


The understanding of the constituent power as a will makes Schmitt’s theory a clear manifestation of the legal voluntarist or decisionist tradition, which, in contrast to natural law and positive law, founds the authority of the law on neither nature, reason nor a basic norm, but rather on the will of the sovereign (people). In this way, Schmitt does not distinguish between power and authority: if the people have the power to authorize themselves to act as the constituent power, then their decision will be legitimate. The origin of the constitution is thus not a basic norm but a command of the sovereign people: “in contrast to mere norms, the word ‘will’ denotes an actually existing power as the origin of a command. The will is existentially present; its power or authority lies in its being” (Schmitt 2008:64). In this way, Schmitt argues, “The Weimar Constitution is valid because the German people gave itself a constitution” (Schmitt 2008:65).


It is important to note here that the will is of a political nature because it shows that Schmitt’s conception of the political lies at the heart of his theory of the constituent power: “The theory of the people’s [constituent power] presupposes the conscious willing of political existence, therefore, a nation” (Schmitt 2008:127). The political unity of the people, which for Schmitt is another word for the state (Schmitt 2008:59 and Schmitt 2007:19-20), is therefore the condition for the existence of (and not the product of!) the constituent power (Schmitt 2008:75). The precondition for the existence of the constituent power is thus the friend and enemy distinction that is the defining character of the political unity of the people (Schmitt 2007:29-30). The existential distinction between friends and enemies is thus the foundation for the unitary political will which is the constituent power.


On Schmitt’s view, the decision of the constituent power does not pertain to the constitution of a people or the constitution of a state (“the social contract”), but to the constitution of “the type and form” of the pre-existing political unity of the people.  The decision of the constituent power is the decision upon a specific political form, e.g., democracy, monarchy, aristocracy and so on: “Fundamentally new forms can be introduced without the state ceasing to exist, more specifically, without the political unity of the people ending” (Schmitt 2008:75-76). In this way the constituent power decides on the concrete manner of existence that characterizes the political unity (Schmitt 2008:59).  The validity of the social contract, Schmitt argues, is its mere existence and thereby “its right to self-preservation” (Schmitt 2008:76).


It is important to note that Schmitt distinguishes between constitution and constitutional laws. The constitution is not the sum of the constitutional laws (Schmitt 2008:75). The constitution consists in the fundamental political decision on the political form of the state. In this way, the fundamental decision of democracy is encapsulated in the preamble to the Weimar Constitution: “the German people provided itself with a constitution” and “State authority derives from the people” and “The German Reich is a republic” (Schmitt 2008:77-78). These clauses are “more” than norms, statutes or constitutional laws: “They are, specifically, the concrete political decision providing the German people’s form of political existence and thus constitute the fundamental prerequisite for all subsequent norms, even those involving constitutional laws” (Ibid.).


This concrete political decision, which determines the type and form of the political existence of the people, is made as a one-sided decision of the sovereign will of the people. This decision is not made through representation (as in the case of Sieyès: the third estate as the extraordinary representatives of the nation) or under any other legal or institutional constraints (Schmitt 2008:128). The will of the constituent power is always in the state of nature and the people’s political self-determination is therefore made in a direct an unmediated manner (Schmitt 2008:131). The people can therefore say “yes or no” to the fundamental question of their political existence: “Monarchy or republic? Constitutional monarchy or the dictatorship of councils?” (Schmitt 2008:83). This decision is not necessarily reached through a referendum (a constituted form) but through the direct expression of consent or disapproval of the physically assembled people, i.e., through acclamation (Ibid.).


The constituent power therefore never deliberates or seeks compromises: it always has to be a fundamental negation or affirmation. If not, the constitution will be a dubious decision that never could provide stability and political legitimacy: “Inside every political unity there can be only one bearer of the [constituent power]” (Schmitt 2008:105). The acclamation of the sovereign people is the very core of Schmitt’s understanding of democratic legitimacy (Schmitt 2008:136).


Whereas the French model of the constituent power according to Schmitt embodies a strong, stable, and realistic political foundation because of its clear and uncompromised manifestation of popular sovereignty, Arendt sees the French model as “built on quicksand” (Arendt 2006:154). The interesting aspect of this disagreement is that the virtue of the French model according to Schmitt (sovereignty) is the French Revolution’s most serious vice according to Arendt.[3] According to Arendt, the French model of the constituent power is nothing but a bad disguise of tyranny.


A tripartite critique of the French model of the constituent power, corresponding to a triple manifestation of sovereignty pertaining to the French model, can be extracted from Arendt’s writings on constituent power. Firstly, the French model is sovereign with regard to the subject of the constituent power (the singular will of the nation). The notion of the sovereign will of the nation as the subject of the constituent power and the source of authority of the law, Arendt argues, is dangerous and unstable because a will, if anything but a legal fiction, will be ever changing (Ibid.). A sovereign will, therefore, can never provide any form of endurance or stability in a political realm: public opinion blows with the wind. Whereas France as one of the oldest nations has persisted, French constitutional stability has been very low: since 1791 France has had seventeen constitutions. 


Secondly, the French model is sovereign with regard to the constitutional act (decision or command). The idea of the constitutional act as a one-sided decision or command of the people as a unitary actor reduces constitutional politics to an anti-political manifestation of despotism or tyranny. The idea that a command is the source of authority of the law makes it impossible to distinguish between authority, power, and violence (Arendt 2006:173). In this way, according to Arendt, the legitimacy which Schmitt imagines can be nothing but a manifestation of the fluctuating balance of who controls the monopoly of violence. Historically speaking this means that legitimacy is nothing but a manifestation of the power of the decision-maker(s): the Pope, the Prince or the People.


Thirdly, the French model is sovereign with regard to the source of legitimacy (the fusion of power and authority). On the basis of Arendt’s writings, one must conclude that each of these sovereign aspects makes the political success of the French model of the constituent power dubious. The lack of distinction between power and authority is tyrannical because it simultaneously makes law powerful and power legitimate no matter its form and content (Arendt 2006:147). In this way, the command of the constituent power (no matter whose) always constitutes a legitimate foundation for the law (no matter its content) independently of how it is expressed (no matter how) as long as it is a unitary action, that is, as long as it is sovereign. Following Arendt, there is in this case no qualitative distinction between the power of one and the power of the many: it is only a question of who yields political power, the question of who decides.


The American Revolution can, according to Arendt, provide us with a more promising model for the constituent power. Whereas the French model is a manifestation of sovereignty and presupposes the political unity of the nation-state, the American model is post-sovereign and is manifested in the political form of federations. Arendt distinguishes the American model from the triple structure of sovereignty pertaining to the French model: the subject of the constituent power, the constitutional act and the source of constitutional legitimacy. The American model is understood by Arendt not as a sovereign command of the unitary will of the people, but rather as a contract or a mutual agreement amongst a plurality of human actors aiming towards the constitution of public freedom.  While the French model has its origins in political theology and the political philosophy of Sieyès, the American model has its intellectual origins in the Roman republican tradition and the political philosophy of Montesquieu.


According to Arendt, the subject of the constituent power in the American model is post-sovereign because, in contrast to the French model, it is not manifested in the unitary will of the people as a single agent but, instead, in the plural power of the people. Following Arendt, the very condition of politics is plurality: a plurality that will disappear the moment the “manyness” of the people is reduced to a unitary will. This plurality was manifested in the American Revolution in the institutional plurality of town halls and of states (Arendt 2006:172-173). Whereas the subject of the constituent power in the French model is manifested in the unitary will of the people, the subjects of the constituent power in the American model are the people(s) as organized multitude(s).


Therefore, the subjects of the constituent power in the American model do not act in ‘the state of nature’, but rather in a public sphere that institutionally incorporates some amount of division of powers (which, following Arendt, entails multiple sources of power and not merely the separation of power into the three branches of government) (Arendt 2006:142-3). Following Montesquieu, Arendt argues, the public sphere is conditioned on the existence of checks and balances, which cannot be secured through law, but only through the existence of multiple power sources. A genuine division of power is not possible within the nation-state because the state, in Weberian terms, enjoys the monopoly of violence. The American model is therefore manifested in the political form of the federation.


Since the subject of the constituent power in the American model is plural, the constitutional act is not a command but a mutual agreement, a compromise or a contract. The constitutional act can therefore not be understood as mere acclamation: it requires some amount of public deliberation and common action, that is, of Arendtian politics. The constitutional act, Arendt argues, consists in common deliberations and mutual pledges (Arendt 2006:206). The constitutional act is thus a manifestation of Arendtian politics as the praxis of political freedom.


The source of constitutional authority in the American model, Arendt argues, does not rest upon a fusion of power and authority as in the French model. It is, however, an open question whether Arendt succeeds in separating power and authority. The superiority of the American model to the French model, Arendt argues, consists in the authority being derived not from the power of the people, but rather from the performance of constituent power encapsulated in the constitution as a written document (Arendt 2006:196). Constitutional politics does according to Arendt carry an immanent principle which can provide a non-sovereign foundation for the constitution: “The way the beginner starts whatever he intends to do,” Arendt writes, “lays down the law of action for those who have joined him in order to partake in the enterprise and to bring about its accomplishment. As such, the principle inspires the deeds that are to follow and remains apparent as long as the action lasts” (Arendt 2006:205). This principle is that of political freedom manifested and secured through common deliberations and mutual promises (Ibid.).


These characteristics are in general in Arendt’s writings characteristics of politics as the praxis of political power or freedom. For this reason it is debatable whether Arendt ultimately succeeds in deriving power and authority from different origins. The important point is, however, that, contrary to Schmitt, Arendt argues that the authority of constitutional politics—if it is to be an adequate and successful source of political legitimacy—relates not merely to a who (the subject of the constituent power), but also to a how (the act of constitutional politics) and a what (the content of the constitution).


The last substantive criterion (the what) does not refer to a principle of natural law but to a principle of amendment rules. In other words, Arendt argues, if constitutional politics is to be successful, the constitution as a constituted form has to keep the constituent power alive. The true source of authority of the constitution, following Arendt, is thus not the constitution as a written document, but the permanent immanence of the constituent power, which persists in the possibility of amendments. In this way, Arendt strives to overcome the rigid distinction of the French model between constituted power and constituent power. In the American model the constituent power comes to be extended into the constituted power as constitutional amendment rules and in this way the source of authority is not left as a dormant force in the state of nature. The permanence of the political realm and the constituent power, instead of being opposites as in the French model, become wed to one another in the principle: “preservation through augmentation” (Arendt 2006:194).


Whereas Arendt understands in this way the American model as the most successful form of constituent power because it overcomes sovereignty, Schmitt, in obvious contrast thereto, understands the federal form of constituent power as nothing but a transitory form exactly because the question of sovereignty is left open.  The federation is, following Schmitt, a peculiar political form, because it lies in the middle of the spectrum between a confederation, i.e., an international treaty that does not deprive its members of their sovereignty, and a federal state (Schmitt 2008:383-5).


The federation is the political form describing a union of states, which have a constitution but not a state. According to Schmitt, the constituent power of the federal form is clearly distinct from the French model of constituent power because it is a contract between the member-states of the federation. This contract changes the member-states’ constitutions without abolishing their national sovereignty (Schmitt 2008:384). Historically, this political form could be applied to e.g. the German Federation of 1815-1871, the United States of 1787-1865 and possibly also to the present day EU.


The aim of the federation is, according to Schmitt, self-preservation. This entails that all federations unconditionally guarantee the political existence of each of the members of the federation, even if this is not stated explicitly (Schmitt 2008: 386). Internally, self-preservation signifies a necessary pacification. Internal peace is essential within the federation; a war between two member-states would signal the end of the federation (Schmitt 2008:386-7). Furthermore, in the name of the common interest in self-preservation and security, the federation has the right of supervision and, if necessary, intervention with regard to maintenance, preservation and security (Ibid.) Externally, the federation protects all the member-states against foreign invasion: “Every federation can wage war as such and has a jus belli. There is no federation without the possibility of a federation war” (Schmitt 2008:387). This does not mean however that the individual members of the federation are totally deprived of their jus belli; “it follows from the nature of the political existence of the individual members that a right to self-help and to war is only being given up insofar as it is conditioned by membership in the federation” (Schmitt 2008:388).


The inevitable political failure of the American model is inscribed in a fundamental antinomy regarding sovereignty, which pertains to the political form of a federation of democratic states. This antinomy persists between the political existence of the federation and the political existence of the member-states, which have to coexist under a federal constitution (Schmitt 2008:388). The federation is conditioned on this coexistence: neither the member-states nor the federation are to be subordinated to the other part: “the federation exists only in this existential connection and in this balance” (Ibid.). The essence of the federation resides in this “dualism of political existence.” If the existential balance of this dualism is not kept intact, the federation will dissolve either into individual sovereign states or into one federal sovereign state (Schmitt 2008: 389).


The problem of this dual existence is practically best illustrated by the problem of secession. On the one hand, the federation is founded as a permanent order that entails a continual renunciation of the right to secession. On the other hand, the federation is a contract of independent politically existing states that must have the continual right to decide upon the status of this contract themselves, also with respect to the annullability of this contract, i.e., the right to secession (Schmitt 2008:392). In this way, the federation is existentially conditioned both on the member-states’ continual right to secession and the renunciation of this right.


The fundamental problem of the federation can be stated as follows: if an existential conflict arises between the federation and the member-states, who decides? The problem is that the federation is predicated on the existential balance between the two parties’ equal right, and if a decision is made, the federation will dissolve because either national or federal sovereignty is declared supreme. For this reason, the existence of the federation is conditional on a perpetual openness of the question of sovereignty, that is, the existence of the federation is predicated on an existential exclusion of internal conflict in the federation (Schmitt 2008:395). It is important to note here that existential balance between two political entities, according to Schmitt, does not entail a “division of sovereignty”: the question of who decides is merely left open.   


The only possible resolution to this antinomy, according to Schmitt, lies in an existential and substantial homogeneity among all members of the federation, which will ensure that the antinomy is resolved by making certain that internal conflict is existentially excluded (in this way, the closure of the question of sovereignty is precluded) (Schmitt 2008:395). This substantial homogeneity is primarily derived from national similarity of the member-states’ populations (independently of what it is manifested in: language, history, religion, culture etc.) (Schmitt 2008:392).


This criterion of homogeneity pertains, according to Schmitt, not merely to the federation as a political form but to democracy in general. In a national democracy, like the French, the presupposition of democracy is a substantial equality of a people, meaning a national homogeneity: “democratic equality is essentially similarity, in particular similarity among the people” (Schmitt 2008:261, 263).


Democracy is defined by Schmitt—both as a state form, a governmental form and a legislative form—as the identity of ruler and ruled (Schmitt 2008:264). Identity as the key term of democracy has at least three meanings for Schmitt: (a) the identity of a homogenous people (national identity), (b) the identity of politically unified people (political identity) and (c) the self-identity of a physically present people as in contrast to representation (presence identity). Democracy rests in this identity because if the identity is strong enough there will be no difference between the opinion of one and the opinion of another: there will be one sovereign will of the people. It is this will that has the power or authority to constitute a state as a democracy: the homogenous sovereign will of the national people is the subject of the constituent power.


Since both democracies and federations rest on substantial homogeneity, it is necessary that the national homogeneity converges with the federal homogeneity in a federation of democratic states (Schmitt 2008:404). For this reason, Schmitt argues “it is part of the natural development of democracy that the homogenous unity of the people extends beyond the political boundaries of member states and eliminates the transitional condition of the coexistence of the federation and the politically independent member states, and replaces it with a complete unity” (Schmitt 2008:404).


In this way, the principle of homogeneity that led to the resolution of the antinomies of the federation—the antinomies which again, if not resolved, would lead to the dissolution of the federation because of the closure of the question of sovereignty—has, in the case of democratically constituted states, a path dependency, which stirs the federation directly toward its transition into a federal state. On the other hand, if the homogeneity is not strong enough, the antinomies of the federation will lead to a collapse of the federation into sovereign states.


For this reason, the legitimacy of a federation, in Weberian terms (the sociological criteria leading the population to accept the political system), will lead (a) to the transition of the federation into a federal state if they are fulfilled and (b) to the dissolution of the federation into nation-states if they are not fulfilled. The non-statist form of the federation is therefore, according to Schmitt’s theory, merely a transition from one form of statehood to another form of statehood.


The inevitable result is the end of the federation: either the federation is dissolved into individual states or the individual states give up their independent existence to the federal state (Schmitt 2008:389). The American model and the dual structure of sovereignty which pertains to the federation is therefore, Schmitt argues in contrast to Arendt, not very likely to be a political success because it more often than not will merely be a political transition to statehood.


Constitutional success and failure

On the basis of the above discussion of the French and the American models of the constituent power, the following table can be constructed which would apply to both Arendt’s and Schmitt’s writings on the French and the American models of constituent power:


  Political form Sovereign Constitutional act Constitutional subject
The French Model of the constituent power The nation-state Sovereign Decision or command The people as singular
The American Model of the constituent power The federation Post-sovereign or undecided Contract or agreement The people(s) as plural


            Table 1: The French and the American Model of the constituent power


What is interesting about these models, apart from the fact that Schmitt and Arendt have a similar understanding of the relationship between constitutional politics, political form and sovereignty, is their completely opposite judgement of the two models on the basis of the same parameter: political success and stability.  According to Arendt, the French model is doomed to fail because of its foundation in the political theology of a sovereign national will: “it is as though the nation-state, so much older than the revolutions, had defeated the revolution in Europe even before it had made its appearance” (Arendt 2006:14). On the other hand, according to Schmitt, the American model is merely a transitory model predicated on the lack of existential conflicts among the member states. This political possibility rarely has a long endurance because, in concrete political terms, it is preconditioned on an existential homogeneity between all the member-states; an existential homogeneity that, moreover, cannot be so strong that the federation will transition into a federal state.


How can we make sense of this diametrically opposed judgement of the political success and stability of the two models of the constituent power? One possible answer can be given on the basis of the difference between Arendt’s and Schmitt’s understandings of what political success and stability consists in. This question is only raised indirectly by the two authors. It seems however that where Schmitt fundamentally is most concerned with political success and stability with regard to security, Arendt is primarily concerned with political stability understood as the stability of the institutional framework of the public sphere as space of political freedom.


At the heart of the disagreement on the political success of the two constitutional models lies one of the oldest discussions of political theory: what is the end of a political union? Why should a group of people constitute themselves as a political community? In relation to the discussion of the constituent power, this question could be rephrased as: what is the ultimate meaning of constitutional politics? The answers given by Arendt and Schmitt respectively are freedom and security.


What is interesting in the comparison of Schmitt and Arendt is that they both conceive of the constitutional act as tautological: following Schmitt and the French model of the constituent power, the constitutional act of the sovereign will of the people aims at securing its own sovereignty. The constitution is the self-preservation of the power pertaining to the subject of the constituent power: the sovereign people constitute themselves as sovereign. The ultimate source of legitimacy for this action is therefore also the ultimate aim of the action: self-preservation. In this way, Schmitt operates with four existential values, which he borrows from Spinoza: existence (the friend and enemy distinction), integrity (the unification of the people in a nation), security (the self-preservation of the nation), and constitution (the decision of the question of sovereignty) (Schmitt 2008:76).


In this way, the sovereign political unity of the people manifested in the nation-state exists in order to preserve itself. This is Schmitt’s understanding of a groundless foundation for political legitimacy. Political success and stability consists in the absence of internal strife and the persistence of the state. Constitutional and institutional continuity is therefore not necessarily a parameter of political success and stability: following Schmitt’s theory, it does not seem to be problematic that France has had seventeen constitutions in a little more than two hundred years. As long as the decisions of sovereignty are strong and clear, Schmitt does not seem to argue either for or against their constant reappearance. What matters in politics is the will to self-preservation: “If a people no longer possesses the energy or the will to maintain itself in the sphere of politics, the latter will not thereby vanish from the world. Only a weak people will disappear” (Schmitt 2007:53).


Following Arendt and the American model of the constituent power, the people as an organized multitude exercise political freedom in order to constitute a public sphere for political freedom. Constitutional politics is the exercise of public freedom in order to institutionalize public freedom. In contrast to Schmitt, not security but public freedom is the defining characteristic of politics on Arendt’s view. Whereas Schmittian politics is defined on the basis of the external relations of the political community (the friend and enemy distinction), the Arendtian notion of politics is defined on the basis of the relations internal to the political community. Whereas the Schmittian notion of politics is predicated on the existence of a state, the Arendtian notion of politics is predicated on the existence of a public sphere. Political success and stability in the Arentian theory can therefore not be measured on the basis of the persistence of a nation-state, but only on the institutional persistence of a public sphere of political freedom.



In light of the American and the French models of constituent power, the pivotal question which ought to be raised in relation to the constitutional failure of the EU and the ensuing legitimation crisis seems to be whether the successful establishment of democratic constitutional legitimacy is conditioned on the existence of a federal state. From the perspective of Arendt’s and Schmitt’s writings on the constituent power, two opposing answers are given based on two rivaling notions of the ultimate meaning of constitutional politics: freedom and security.


Following Arendt, the nation-state as a political form seems to preclude the possibility of the establishment of a public sphere because of the state’s monopoly of violence. Political freedom is for Arendt conditioned on checks and balances institutionally established by a genuine division of power between several political entities. The establishment of constitutional legitimacy as political freedom is therefore not preconditioned on the existence of a federal state, quite the contrary. A similar hopeful argument for a “transnational” constituent power in Europe has recently been made by Habermas.[4] The hope is that the division of sovereignty between the member-states and the federal level will create a fertile ground for democracy.


Following Schmitt, the establishment of constitutional legitimacy in a non-statist federation is doomed to fail for the simple reason that if legitimacy is created in a federation, the political union will become so close that the outcome will be the constitutionalization of a federal state. If, on the other hand, legitimacy is not successful, the federation will collapse into nation-states again. Hence, the non-statist federation is only a transitional moment between different forms of democratic statehood. The establishment of constitutional legitimacy is in this light understood on the basis of whether the internal difference between federation members is smaller than the perception of a political exterior. Ultimately, this means whether the feeling of friendship internal to Europe is stronger than hostility between states in Europe: are we more or as much Europeans as we are Danish, French, English, Dutch etc.?


The fundamental question regarding federalism and democracy in the case of the EU seems to be: is it possible to bind the European peoples together by something other than national homogeneity (something which in the case of the EU is not given and seems hard to construct with all the cultural and linguistic differences between the countries)? The motto of the EU—“united in diversity”—seems in light of this discussion to be one of the core problems of the union: what can unite the peoples and states of Europe in their diversity? What can create a strong foundation for democratic legitimacy in the EU? 


The constitutionalization of the EU can be understood as an attempt to create a stronger foundation for legitimacy in Weberian terms: mutual promises and pledges as a manifestation of Arendtian politics is a possible way of creating political legitimacy from the bottom up. The outcome seems however to have been in complete opposition to this intension. The rejection of the TCE by two of the original founding members of the European Coal and Steel Community, France and the Netherlands, has caused a legitimation crisis for the EU.


The question is what this crisis signals? Does the legitimation crisis of the EU signal an imminent “Schmittian” closure of the question of sovereignty which will require either a transition of the EU into a federal state or a rollback of the EU into the original nation-states? Does Europe stand at the crossroad of an ultimatum between the United States of Europe and the end of the European project? If the latter, the question is, what is to be done? Is Europe so internally divided that it cannot make up for its current democratic legitimation deficit? Or is it possible to create the necessary conditions (whatever they are) for a federation of democratic states in Europe?


These questions are of course empirical and can therefore not be established by mere speculations. What can be established theoretically is however that the EU can function as an interesting test-case for the relationship between democracy and the state-form. The EU appears along these lines as an experiment on whether democracy is possible in political communities beyond the state and moreover under which conditions it is possible for heterogeneous peoples to unite in their diversity.


In light of the present rise of nationalism within the EU—most significantly in France, Hungary, and the Netherlands—constitutionalism seems to have failed in the EU both in the Arendtian and the Schmittian sense. The common public sphere of all European countries with a vision of a future for Europe seems to be shrinking. The democratic body of the EU, the European Parliament, appears, for example, to become increasingly dominated by nationalist parties.[5] If this trend continues, this indeed suggests a grim future for the European project. The constitutional failure seems to suggest that democracy and constitutional politics have parted ways in the EU. If that is the case, the constitutional crisis is a serious problem for the future of democracy in the EU.



Arendt, Hannah: On Revolution. London: Penguin Books. 2006.


Everson, Michelle and Julia Eisner: The Making of a European Constitution—Judges and Law Beyond Constitutive Power. Abingdon: Routledge. 2007.


Habermas, Jürgen: The Crisis of the European Union—A Response. Malden and Cambridge: Polity Press. 2012.


Sieyès, Emmanuel: What is the Third Estate? in Political Writings. Cambridge: Hackett Publishing Company. 2003.


Schmitt, Carl: The Concept of the Political. Chicago and London: The University of Chicago Press. 2007.


Schmitt, Carl: Constitutional Theory. Durham and London: Duke University Press. 2008.


Walker, Neil: Preface in Sovereignty in Transition, ed. Neil Walker. Portland: Hart Publishing. 2003.  


Weiler, Joseph: The Constitution of Europe: Do the New Clothes have an Emperor? and other essays on European Integration. Cambridge: Cambridge University Press. 1999.


The Treaty of Lisbon. 2007:

[1] See Lisbon Treaty, Final Act, 17. Declaration concerning primacy: p. 306/256

[2] The translator has chosen to translate “verfassungsgebende Gewalt” with constitution-making power instead of constituent power. The two words can be used interchangeably but for simplicity’s sake I consistently refer to the term as constituent power.

[3] Arendt’s critique of the French Revolution is manifold. Two of the main reasons for the failure of the French Revolution given by Arendt are the predicament of poverty in France and the break with the absolute monarchy which came to legitimize the French terror to such an extent that crime and virtue no longer could be distinguished: any crime in the name of the people would be legitimate (Arendt 2006:54-58, 82, 148, 173). Arendt’s critique of the French Revolution does however transcend these two historical specific conditions of the late 18th century in France. If the French model is understood as an ideal type (equivalent to Schmitt’s conception of the constituent power), a general critique can be extracted from Arendt’s discussion: The critique of the sovereign model of the constituent power.

[4] Jürgen Habermas: The Crisis of the European Union—A Response. Malden and Cambridge: Polity Press. 2012.

[5] In a number of countries, recent opinion polls suggest that right-wing nationalist parties will become the biggest parties in the upcoming 2014 election. See for example France:, the UK:, and the Netherlands (in Dutch):,-pvv-in-europa/ [accessed May 4, 2014]. 

Human Rights, State Violence and Political Resistance



“The usefulness of rights comes to an end when they lose their aim of resisting injustice.

— Costas Douzinas, The Guardian, 12/10/2008





Human rights have since their first declaration in 1789 been heavily criticised. One returning criticism has been that human rights are ‘abstract’ or ‘formal’ and therefore de jure as well as de facto ‘empty’; an understanding that famously led Edmund Burke to declare that he would rather enjoy the rights of an Englishman than the inalienable Rights of Man. Following this reading, one would think that it is a brute fact that the Rights of Man only can be implemented to the extent that they coincide with the national rights guaranteed by the state. In this way, the only de facto subject of human rights is the citizen and the only de facto sphere of implementation of human rights is the state. The line of political exclusion from society and from the nation-state thus designates the borderline of the sphere in which human rights can be implemented. Following Jeremy Bentham, this criticism will conclude that the ‘natural’ Rights of Man appear to be “nonsense upon stilts.”




Another more recent criticism ties the formulation of human rights to the inscription of ‘bare life’ in the realm of politics. Following this criticism human rights appear as a part of a broader tendency of politics as “governance of life” (biopolitics) which has its endpoint in the total domination of ‘bare life’ in the concentration camp.




In light of these criticisms, human rights do not appear in a flattering light: either they are complicit with the political exclusion from the state, or they are complicit with the repression within the state. Either way human rights seem to amount to nothing more than a humanitarian mask of the structural violence of the state. For this reason, the emancipatory potential of human rights seems bleak.




The problems do however not end here. If a link can be established between the exclusion from the state and the repression within the state (as it is done, at least tentatively by both Hannah Arendt and Giorgio Agamben) not only human rights but also national rights seem to be a futile ground for emancipatory politics. If both the problem of political exclusion from the state and repression within the state can be tied to the sovereign power of the nation-state, not even “the rights of an Englishman” seem to present a foundation of political resistance.




In that case it becomes crucial to raise the question of how we can think politics as a form of counter-power to the repression of the sovereign power of the nation-state. On the backdrop of these discussions, this essay sets out to discuss the relationship between human rights, political exclusion and repression, and political agency in the writings of Hannah Arendt, Giorgio Agamben and Jacques Rancière, asking ultimately from where or from whom political emancipatory politics can be thought.




Hannah Arendt: The Perplexities of the Rights of Man


In The Origins of Totalitarianism, in the chapter “The Decline of the Nation-State and the end of the Rights of Man,” Hannah Arendt discusses a fundamental perplexity of the Rights of Man (more commonly known as “the problem of refugees”). The perplexity consists in a historical link between nation-states and human rights implying that the crisis of one also signals the crisis of the other.




The perplexities of the Rights of Man, Arendt argues, has its origin in the very first declaration of human rights where a problematic link was established between the universal inclusion of the Rights of Man and the poltical exclusion from nation-states, ironically manifested in the title: “Declaration of the Rights of Man and Citizen” anno 1789. The Rights of Man were declared to be the end and meaning of national government and the people (the citizens) was declared to be the sovereign of the nation-state. In this way, Arendt argues, the emancipated man is from his birth a part of a sovereign people whereby human emancipation becomes equalized with national emancipation. The the citizen is thus from the founding moment the subject of the Rights of Man (Arendt 2009:290).




If it was the case that all human beings belonged to one nation-state or another where the constitution was founded upon the Rights of Man, we might agree with Burke and proclaim the emancipation of mankind in the name of “the Rights of an Englishman.” This is however not the case.[1] The implication of the identification of the Rights of Man with the Rights of the Citizen first became visible when huge numbers of de facto or de jure stateless people turned up within the European nation-states. What became apparent was that even though human rights were declared independent of all goverments, the fact of the matter was that when human beings no longer could claim protection by their own governments, whereby they had to fall back upon the rights they were supposed to be entitled to merely by being men, no authority or institution was willing to guarantee them (Arendt 2009:292).




The exclusion from the nation-states was, as Arendt shows, an unfortunate consequence pertaining to the nation-state system itself. This was predominantly the case when the nation-state system was implemented in geopolitical areas that could not live up to “holy triad” of the nation-state: state-people-territory,[2] i.e. absolute sovereign state power over one people living in a demarcated territory. When the nation-state system was implemented in Southern and Eastern Europe with the Peace Treaties after the First World War, many different peoples were united in nation-states but often only one of the peoples were endowed with the name “state people” (“the nation”) and entrusted with government (Arendt 2009:270ff). The Minority Treaties and The League of Nations founded to protect the now huge minorities (such as the Slovaks in the former Czecho-Slovakia, or the Croats and Slovenes in the former Yugoslavia) proved utterly impotent in protecting these minorites from internal repression, political exclusion, and in some cases denaturalization (Arendt 1944:357, Arendt 2009:270ff).[3] The result was that Europe litteraly was overflown with de facto stateless people in the interwar period.




The loss of the de facto stateless, Arendt argues, though widely discussed, was however different than what was mostly imagined. Firstly, the stateless lost their homes and thereby the entire social texture into which they had been born. This loss was however in no way new; what was new was the impossibility of finding a new home (Arendt 1944:353). This impossibility was not due to overpopulation but the political framework of nation-state in which the statesless constitute an impossible category and an unsolvable problem. The only solution to the problem of statelessness imaginable within the nation-states system was to incorporate them into the political framework of the nation-state either by repatriation or by naturalization (Arendt 2009:281). In the interwar period, the failure of both strategies, however, became apparent. The stateless could in general not be repatriated because they were, de facto or de jure, expelled from or had fled from their country of origin; the stateless could not be naturalized because nation-states in general only reckoned ‘nationals,’ i.e., people born in the territory and citizens by birth, as citizens (Arendt 2009:283-285). Furthermore, in a world inhabited by nation-states, no new territory existed where the statesless could found a community on their own. When the stateless lost their home they therefore remained homeless.




Secondly, the stateless suffered the loss of governmental protection, which meant the loss of a legal status, not only in their own country, but in all countries; only the second loss was unprecedented in history (Arendt 2009:294). In the nineteenth century, many countries offered governmental protection through the right to asylum to those people who for political or religious reasons had been prosecuted by their country of origin (Ibid.). This policy—which generally was unofficial and intented for exceptional cases—broke down in the interwar period when the numbers of stateless people on European soil made it impossible to understand statelessness as a few exceptional cases (Ibid.). Furthermore, the majority of the stateless did not qualify for this older policy of asylum since they were not procecuted because of political or religious believes but because they belonged to the wrong kind of race or the wrong kind of class (Ibid.).




The calamity of the stateless, Arendt argues, was however not so much that the stateless have been deprived of human rights but that they have been expelled from all political communities. With her wry sense of humour, Arendt remarks that the stateless in a way enjoys more freedom than the citizen (Arendt 2009:296): the stateless is free to leave and has the freedom of speach. His calamity is however that no one will listen to him and that he will be welcomed nowhere. The calamity of the stateless, Arendt argues, is manifested in “the deprivation of a place in the world which makes opinions significant and actions effective” (Ibid.) The extremety of the situation of the stateless is not the deprivation of their right to freedom but the right to action; not their deprivation of the right of freedom of thought but their right to opinion (Ibid.).




The right to belong to a commuity, the “right to have rights” Arendt argues, could not have been understood within the categories of the eighteenth century, since it is their understanding that the source of human rights are man and not men: “The desive factor is that these rights and the human dignity they bestow should remain valid and real even if only a single human being existed on earth; they are independent of human plurality and should remain valid even if a human being is expelled from the human community” (Arendt 2009:297-298).




It is from political life that the stateless are expelled, and it is for this reason, according to Arendt, that they are expelled from humanity as such: “Man, it turns out, can lose all so-called Rights of Man without loosing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity” (Ibid.). We therefore stand in the curious situation that the condition of the people who are nothing but men—the refugees, the stateless, the sans papier—that is, the people who ought to have been the embodyment of human rights, makes it impossible for other people to treat them as fellow-men.




Agamben: Biopolitics and The Rigths of Man


In Homo Sacer Giorgio Agamben devotes his chapter on biopolitics to a reading of Arendt’s discussion of the interrelated fate of the nation-state and the Rights of Man alluded to in the title: “The Decline of the Nation-State and the End of the Rights of Man”: “Linking together the fates of the rights of man and of the nation-state,” Agamben writes, “her striking formulation seems to imply the idea of an intimate and necessary connection between the two, though the author herself leaves the question open” (Agamben 1998:126).[4]




In the “Declaration of the Rights of Man and of the Citizen,” anno 1789, Agamben perceives the originary formulation of the modern form of biopolitics, that is, the inscription of mere life (zoe)—which roughly corresponds to Arendt’s understanding of the life of the private sphere—into the jurido-political framework of the nation-state.[5] With reference to Michel Foucault, Agamben argues that the ancient distinction between the private life (oikia) and the political or public life (polis) has been transgressed: “For millennia,” Foucault writes “man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics calls his existence as a living being into question.”[6] The heart of biopolitics, in Agamben’s understanding, is that mere life (zoe), and not qualified meaningful life (bios), is what is at stake in politics.




The hidden foundation of the nation-state is biopolitics, Agamben argues, and it discloses itself in “The Declaration of the Rights of Man and the Citizen.” From this title, Agamben argues,  it is not clear what the relationship between man and citizen is; whether they are two autonomos beings or whether they are one and the same, that is, whether man always already is included in the citizen; and, he continues, if it is the latter it is still not clear what this relationship consists in. In accordance with Agamben’s explication, it is the pure fact of the birth of man that is the bearer of human rights (Article 1: “Men are born and remain equal in rights”). At the foundational moment, the birth of the natural life of man yield for the figure of the citizen and the sovereign power of the nation (Article 2: ”The goal of every political association is the preservation of the natural and indefeasible rights of man” and Article 3, “The principle of all sovereignty resides essentially in the nation”)[7] In this way, Agamben argues, the nation, which etymological is derived from nascere, “thus closes the open circle of man’s birth” (Agamben 1998:128).




This birth of biopolitics in modernity, Agamben argues, thus manifests itself in two links: firstly a link of man-citizen and, secondly, a link of birth-nation. Since man cannot be separated from citizen, birth  immediatly becomes nation in a way where no separation can exist within the political framework of the nation-state. For this reason, Agamben argues, birth for the first time in history becomes the immediate bearer of sovereignty.




In this way, Agamben argues, bare natural life becomes polticised. Here again, Agamben draws heavily on Foucault’s The History of Sexuality where a growing inclusion of man’s natural life into the mechanisms of power is discernt. Agamben does however take Foucault’s analysis further and argues that the politics of life very easily can flip over to a politics of death: “thanatopolitics.” An example hereupon is given by Agamben in his analysis of the “Euthanasia Programme for The Incurably Ill” in Nazi Germany (Agamben 1998:140-141). The Euthanasia Programme took place from February 1940 to August 1941 and in this period 60,000 men, women and children were killed (Ibid.). These killing were discursively portrayed and understood as “the elimination of life unworthy of being lived”[8] in the words of Karl Binding (specialist in penal law) and Alfred Hoche (medicine) (Agamben 1998:136). In their book, Authorization for the Annihilation of Life Unworthy of Being Lived, what Agamben calls “the fundamental biopolitical structure of modernity,” is introduced; namely a distinction between valued life and valueless life.[9] Binding asks: “Are there human lives that have lost the quality of legal good that their very existence no longer has any value, either for the person leading such a life or for society?”; the answers, as must be expected, is in the affirmative (Agamben 1998:138-139). These human beings, who “have neither the will to live nor the will to die,” Binding suggests can be killed without punishment through an “act of grace,” or “mercy killing” (Gnadentod) if authorized, in the last resort, by a state committee (Agamben 1998:139-140). This sovereign decision upon the life not worth living, that is, the decision on political exclusion, is not exclusive to Nazi Germany but is present in all modern societies: “Every society sets this limit; every society—even the most modern—decides who is ‘sacred men’ [i.e., the “life not worth living”] will be” (Ibid.)




It is important that this decision is of a juridico-political nature: the killing of “life not worth living” can not be separated from the deprivation of rights[10]: Agamben thus argues that the inscription of mere live (zoe) into the polis with the links man-citizen and birth-nation manifested in the “Declaration of the Rights of Man and Citizen,” the juridico-political decision upon exclusion  becomes an ever present possibility. Since bare life is the bearer of sovereignty as such, the jurido-politico decision upon the value of life thus coincides whith the decision upon political exclusion, that is, the decision upon qui sont “les membres du souverain” (Agamben 1998:129).




When Agamben presents his much debated thesis that the camp is the ‘nomos’ of modernity, one has to understand that it primarily is a juridical analysis of the biopolitical decision of political exclusion discussed above. The camps are, Agamben argues, not born out of ordinary law, nor as one might suppose out of criminal law, but out of the state of exception of martial law (Agamben 1998:167). The state of exception refers to the temporal suspention of normal legislation, rights, and the constitution with reference to either external threat (war) or internal strife (civil war); a situation Agamben provides manifold examples of. There is however an important novelty in the juridico-political foundation of the camp which differentiates it from the original notion of the state of exception. Where the state of exception is temporary, the camp is a “state a of willed exception” or a permanent state of exception (Agamben 1998:169).




This permanent state of exception, Agamben argues, has in modernity become a tool of governmentality (Agamben 2005:3) and (Agamben 1998:30-31). In State of Exception, Agamben presents a theoretical and historical introduction to the juridical notion of the state of exception. What becomes clear from his analysis is an inner relation between the laws in Germany between 1933-1945 (“Decree for the protection of the people and State”) and the USA Patriot Act from 2001 which was passed to protect “the national security of the United States”: if a citizen is under suspicion of endangering the national security his or her constitutional rights are de facto suspended.  With the USA Patriot Act as a role model “terror-laws” have been passed in most of Europe and at least to that extent it is understandable why Agamben understands the permanent state of exception (the camp) as the new paradigm for government (Agamben 2005:1-4).




The ultimate consequence of Agamben’s analysis is thus that we, under the post-9/11 terror laws, live in the jurido-politico framework of the camp where we potentially can be deprived of all our rights and be reduced to the life not worth living. A discussion of whether this analysis is convincing or not is outside the scope of this paper. What I will ask instead is therefore how we can think political action or resistance if we, at least for the sake of the argument, accept Agamben’s analysis.




Since no one enjoys the security of citizenship political resistance has to come from the excluded ones: the refugees, the stateless, the inmates of the camp. In short, the people who have no possibility of political action and resistance within Arendt’s diagnosis are the people whose life in Agamben’s theory is most political (Agamben 1998:180). This does however not mean that the people who are “the scum of the earth” have a possibility of political action in the Arendtian sense: for Agamben, all human beings in the modern nation-states whose laws are founded upon the permanent state of exception are reduced to the bare life of the inmates of the camp (pure zoe). Agamben’s analysis is in this respect much more radical than Arendt’s: where there still exists a possibility of meaningful political life in Arendt’s perspective (though it might be quite scarce), no such possibility exists in Agamben’s perspective. The life of the inmates of the camp is thus the only ground from which political resistance can come from.




In his discussion of Der Muselmann (the muslim), who made up the lowest part of hierarchy within the camp, Agamben exemplifies what political resistance might look like in the biopolitical era of the camp. The Muselmann is a being of pure zoe. Not only has he as his fellow inmates been excluded from all social and political communities to which he belonged; he barely belongs to the realm of the living.[11] He can no longer distinguish between “pangs of cold” and “the ferocity of the SS”; between “nature” and “political rule.” He has lost even his animal instincts; he is without will either to live or to die. “Because of this,” Agamben argues, “the guard suddenly seems powerless before him, as if struck by the thought that the Muselsmann’s behaviour (…) might perhaps be a silent form of resistance” (Agamben 1998:185).




It is from such a zone of indistinction, Agamben argues, “a new politics must me thought” (Agamben 1998:187). In Agamben’s perspective, biopolitics has in modernity reached its climate and it is therefore no longer possible to distinguish, as the classics did, between zoe and bios, and this understanding had to be the foundation for a rethinking of the political space in modernity (Ibid.). “This is why,” Agamben writes, “the restoration of classical political categories proposed by Leo Strauss and, in a different sense, by Hannah Arendt can have only a critical sense. There is no return from the camp to classical politics” (Ibid.).




The possibility of political resistance is however bleak in Agamben’s political theory. The hopeless situation that applied to the excluded for Arendt applies to all human beings for Agamben, and political resistance is therefore reduced to the bare life of the living dead manifested in the body of the Muselmann.




Rancière: The part of those without part


Even though Agamben’s and Arendt’s discussion of the perplexities of the Rights of Man might seem very different, Rancière argues, in his polemical text “Who is the subject of the Rights of Man?”, that the ultimate consequence of Arendt’s razorsharp distinction between the realm of politics (polis) and private realm (oikos) is the radical suspension of politics as presented in Agambenian biopolitics (Rancière 2012:66ff). The attempt to purify politics by the exclusion of “ambigous actors” (the refugees, the stateless, the sans papier), Rancière argues, reduces politics to state power (since no one inhabits the polis today) and all human life is therefore banned to the life of the private. In this way politics vanishes into the relationship between Agambenian sovereign power and bare life. “The will to preserve the realm of pure politics,” Rancière writes, “ultimately has politics vanish in the pure relationship between state power and individual life. So politics gets equated with power and power itself gets increasingly construed as an overwhelming historico-ontological destiny form which only a God can save us” (Ibid).




In this light, a rethinking of politics becomes important. For Rancière, this means the we have to ask to the subject of the Rights of Man, that is, Rancière argues, the subject of politics. To argue this point, Rancière returns to Arendt’s discussion of the perplexities of the Rights of Man. Arendt’s argument is, according to Rancière, that the subject of the Rights of Man is either the non-political man (the stateless, the refugee, the sans papier), in which case the Rights amount to nothing, or, the subject of the Rights of Man is the citizen, in which case they amount to a tautology (asuming here that the Rights of Man already are granted to the citizen by his national rights). Following this argument, the Rights of Man are no more than a deceptive trick: either they are a void or a tautology. This argument is however only valid, Rancière argues, if we presume that the Rights of Man are the rights of a single subject, who simultaneously is the bearer and the source of these rights, and who only makes use of the rights he actually posseses. Rancière argues againt this assumption with an at first sight obscure statement: “the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not” (Ibid.). The subject of the Rights of the Man is therefore not “a single x”; the relationship between the subject and rights is much more complex (Ibid).




The subject of the Rights of Man, Rancière argues, it to be understood as a process of subjectivation which bridges the gap between the forms of existence discussed by Arendt: the nonpolitical life of the private sphere and the political life of the public sphere (Arendt 1944:58). These two subjects—man and citizen—are however not to be understood as designating collections of individuals. They are to be understood, Rancière argues, as “political subjects” or “surplus names,” which means that they carry a dispute of political exclusion with them. Political predicates (e.g. man, citizen, freedom, equality) are in Rancière’s perspective not enclosed categories disignating fixed entities or groups: “Political predicates,” Rancière writes, “are open predicates: they open a dispute about what they entail, whom they concern and in which cases” (Ibid).




When Arendt draws the line of political exclusion as the border of the implementation of the Rights of Man between the man and the citizen as fixed groups she thus precludes the political question of the Rights of Man. In Rancière’s perspective, politics as such concerns the border of political exclusion. Politics is the activity of questioning the border of implementation of rights, of putting into question who the citizens are, or what it means the be free or equal. Rancière provides an example hereupon: “During the French Revolution, a revolutionary woman, Olympe de Gourges, made this point very clearly, famously stating that if women were entitled to go to the scaffold, then they were also entitled to go to the assembly” (Ibid). By this statement, Olympe de Gourges called into question the border of implementation of the Rights of Man. Though women, according to the Rights of Man were born equals, they were not equals as citizens: women could neither vote nor stand for election. Their exclusion from political life, though in a blunt contradiction to the Rights of Man, was justified on basis of one of the most common arguments of political exclusion, namely that women could not be included in the realm of political life since they belonged to the private domestic sphere. Olympe de Gourges’ argument made it however quite clear that it is not possible to draw a razorsharp line between the domestic and the political since bare life proved to be political when women where sentenced to death as enemies of the revolution. If the bare life of the women was political in death their bare life had to be political also in life: “If they were as equal ‘as men’ under the guillotine, then they had the right to the whole equality, including equal participation of political life” (Ibid).




Olympe de Gourges’ short and brilliant argument is a examplary manifestation of how the subject of the Rigths of Man can be a process of subjectivation that manages to bridge the gap between different political subject positions such as ‘man’ and ‘citizen’. By transcending the border between bare life and political life, Olympe de Gourges shows that “the Rights of Man are the rights of those who have not the rights that they have” (i.e., women, though born equal in rights, do not live an equal life as citizen) and “have the rights that they have not” (women are entitled to equal political life since they are already included in the sphere because their death can be politized).




Though she is not fully included in the political realm described by Arendt, though she appears enacted on the borderline of political exclusion, Olympe de Gourges statement is a true political action. At the same time, Olympe de Gourges action can in no way be understood as the “silent form of resistance” of the Muselmann. In Rancière’s work, a strong similarity in the work of Arendt and Agamben becomes visible, namely the assumption that politics, in order to exist needs a specific sphere from which the necessity of private domestic life is excluded. The calamity of modernity is, for both Arendt and Agamben, that political life has been penetrated by the logic of the private; in Arendt’s vocabularey this amounts to “the rise of the social sphere” (Arendt 1998: 38ff); in Agamben’s words borrowed from Foucault this is the biopolitical era. Eventhough their conclusions are different (whether or not we can/have to/ought to “return to politics”) they are equally blind to the possibility of political action as a process of subjectivation which obviously blurs the distinction between the public and the private but not in the biopolitical modus of the camp.




Actions such as that of Olympe de Gourges goes to the heart of what Rancière understands as politics, which he calles dissensus: “ A dissensus is not a conflict of interests, opinions or values; it is a division inserted in ‘common sense’: a dispute over what is given and about the frame within which we see something as given” (Rancière 2012:69). What Olympe de Gourges calls into question is the political topos as such, that is, she calls into question what can appear as political at all (e.g. the life of women). Where Arendt understands politics as the realm in which it is possible to act in concert, Rancière undestands politics as the ability to put into question the borderline of that realm. Politics for Rancière does therefore not belong to one specific realm or one specific subject; it is the calling into question of the already established categories of realms and poltical subjects, or, what he calls “the distribution of the sensible.” The subject of the Rights of Man, or the political subject, is the capability to stage scenes of dissensus; to call into question the distribution of the sensible. In this way politics becomes the action of those who do not partake in government, whoever they might be in different political periods: politics is “the part of those who have no part” (Rancière 1999:30).






No (or very few) spheres of pure politics entirely distinguished from the logic of the private sphere exist within the border of the modern nation-state; so much can be agreed upon by the three authors discussed in this essay.[12] Whether it is possible or even desirable to return to such a sphere is however an open question. Even if there is a return path from the camp to the Arendtian polis, is it one we want to take? The pure sphere of politics might be able to solve the problem of repression within the political realm, but it cannot solve the problem of exclusion from the political realm. The polis was exactly founded upon the exclusion of the women, the minors, the slaves, and the foreigners. In this way, the equality and freedom of the political life of the included was parasitic on the inequality and repression of the life of the excluded. The biopolitical sphere of the modern state does, however, not present a promising foundation for political agency if it amounts to nothing more than the “silent resistance” of the Muselmann.




What is ignored by Arendt and Agamben are the statements, arguments, and actions of people who live on the borderline of society, like the sans papier movement in France, who exactly bridge the gap of political exclusion by questioning this gap in itself in their demand for official documents of legal residence: “droit de cité pour les sans papier” (Balibar 2001:17). What we have to understand is therefore that categories such as “the private,” “the public,” and “the social” are themselves open for political contestation: they are not spheres containing specific and unquestionable individuals or groups. Politics does in this light become the exception that calls the rule into question.




Following Rancière, I will argue that the emancipatory potential in human rights does not reside in its historical content but as a genuinely political praxis that calls into question the current distribution of the sensible; a praxis that Costas Douzinas has named “right-ing” (Douzinas 2000: 215-216). Such a praxis might manifest itself in a dissensus that makes the discrepancy between the ideal and the real visible (as done by Olympe de Gourge) but it might also be manifested in a flat denial of the historical content of human rights: “When the chasm between the missionary statements on equality and dignity and the bleak reality of obscene inequality becomes apparent, the false promises of humanitarianism will lead to uncontrollable types of tension and conflict. Spanish soldiers met the advancing Napoleonic armies, shouting ‘Down with freedom!’ It is not difficult to imagine people meeting the ‘peacekeepers’ of the New Times with cries of ‘Down with human rights!’” (Douzinas 2008). Following Douzinas, I will argue that the time has come where we leave the essentialist humanist understanding of human rights behind and embrace human rights as a praxis which opens towards the changing conditions of human societies and demands from new groups of new rights: if rights are not tied to concrete fights and demands against injustice they loose their meaning and relevance.




If politics has a proper place in our world today then it is on the border, and if human rights should participate in any form of emancipatory politics they have to be understood as a borderline concept which calls the social imaginary into question. A concrete example of what that might mean has been given by Étienne Balibar. In his discussion of the democratization of borders (which has to be contrasted to their opening or their abolition) Balibar argues for a multilateral control of borders negotiated by the all the states and all the populations affected by the borders; not merely citizens but also stateless people, refugees, diasporas, migrants and so on. Such forms of politics, Balibar argues, ought to be the focal point for a new understanding of citizenship and rights which he calls a “cosmopolitics of human rights” (Ibid.). If human rights are to leave its heritage of statism and individualism we have to start to imagine collective solutions to collective problems in a similar manner in the name of human rights: we have to transgress the fixed understanding which still haunts liberal democracies, namely, that nation-states and individuals already prescribed by the law are the principal loci for political rights, power and action.





Agamben, Giorgio: Homo Sacer—Sovereign Power and Bare Life. Stanford: Stanford University Press. 1998.


Agamben, Giorgio: State of Exception. Chicago: The University of Chicago Press. 2005.


Arendt, Hannah: Concerning Minorities. Contemporary Jewish Record. 1944.


Arendt, Hannah: Social Science Techniques and the Study of Concentration Camps. Jewish Social Studies, No. 12. 1950.


Arendt, Hannah: The Human Condition. Chicago and London: The University of Chicago Press. 1998.


Arendt, Hannah: The Origins of Totalitarianism. Benediction Classics. 2009.


Balibar, Étienne: Outlines of a Topography of Cruelty—Citizenship and Civility in the Era of Global Violence. Malden: Constellations Volume 8, No. 1. 2001


Douzinas, Costas: The End of Human Rights. Oxford: Hart Publishing. 2000.


Douzinas, Costas: “The ‘End’ of Human Rights”, The Guardian, 10/12/2008.


Rancière, Jacques: Disagreement: Politics and Philosophy. Minneapolis: University of Minnesota Press. 1999.


Rancière, Jacques: Dissensus—On Politics and Aestetics. London and New York: Continuum International Publishing Group. 2012.


Schmitt, Carl: The Theory of the Partisan: Immediate Commentary in the Concept of the Political. New York: Telos Press Publishing. 2007.


Traverso, Enzo: The Origins of Nazi Violence. New York and London: The New Press. 2003.


[1] Arendt writes: ”It is one of Europe’s misfortunes that the emancipation of the people in the form of the nation could only be accomplished in a few Western countries.” See (Arendt 1944:361).

[2] As Arendt points out this unity of state-people-territory is limited to a few Western European countries with France as the prime example: ”None of these [Easteren European] nationalities—this is especially true of those in the Balkans—has ever felt with the same absoluteness as Westeren Europeans that their national adherences were identical with the places in which they lived.” (Arendt 1944:362).

[3] In Concerning Minorities, Arendt writes: “The last twenty-five years, actually, should have taught the whole world that national conflicts cannot be resolved by setting some up as nations and others as ‘minorities’: forcing the former to renounce part of their sovereignty within a system of national states for the sake of their ‘minorities,’ while trying to persuade the latter to acquiesce to a protection acknowledged only with extreme reluctance.” (Arendt 1944:353)

[4] It might not be entirely just to Arendt to say that she leaves the question of the inherent relationship betwen the decline of the nation-state and the end of the Rights of Man open. As already discussed, Arendt argues that the conflations of the Rights of Man and the rights of the citizens, meaning the nationals, leads to a continual existence of stateless people, who no longer are or never were national within the borders of the nation-states, and furthermore, that their continial existence, guaranteed by the political framework of the nation-state,  leads to the downfall of the juridical foundation of the nationstate, that is, the equality before the law, whidch spells the end of the nation-state and the possibility of totalitarianism: ”Deadly danger to any civilization is no longer likely to come from without (…) Even the emergence of totalitarian governments is a phenomenon within, not outside, our civilization.” (Arendt 2009:302).

[5] “Declarations of rights represent the originary figure of the inscription of natural life in the juridico-political order of the nation-state. The same bare life that in the ancien régime was politically neutral and belonged to God as a creaturely life and in the classical world was (at least apparently) clearly distinguished as a z?e from political life (bios) now fully enters into the structure of the state and even becomes the earthly foundation of the state’s legitimacy and sovereignty.” (Agamben 1998:127).

[6] Agamben cites Foucault, La volonté, 188. It ought to be mentioned here that Agamben differs from Foucault on this point: where Foucault understand biopolitics as inherent to modernity, Agamben understands bipolitics as inherent to sovereign power as such (1998:3).

[7] Agamben cites The Declaration of the Rights of Man and Citizen, Article 2 and Article 3 (1998:128).

[8] The notion of ”life unworthy of being lived” is by Enzo Traverzo, in his genealogy of Nazi violence, in an interesting manner put into context with the a new kind of society and warfare which metamorphosed violence into new extreme ”practices of extermination” which all had “dehumanization” as their focal point: the discipline of Taylorism, the Fascist domination founded upon mass mobilization, the dehumanization of the enemy and finally the concentration camps (Traverso 2003:90-99).

[9] In this context, Agamben argues that the Euthanasia Programme can be read in the context of Carl Schmitt’s The Theory of the Partisan, where Schmitt critiques the introduction of the concept of value into law (Agamben,  1998:137) and (Schmitt 2007:78).

[10] A similar point is made by Arendt “The extermination camps appear within the framework of totalitarian terror as the most extreme form of concentration camps. Extermination happens to human beings who for all practical purposes are already ‘dead.’ Concentration camps existed long before totalitarianism made them the central institution of government, and it has always been characteristic of them that they were no penal institutions and that their inmates were accused of no crime, but that by and large they were destined to take care of ‘undesirable elements,’ i.e. of people who for one reason or another were deprived of their juridical person and their rightful place within the legal framework of the country in which they happened to live” (Arendt 1944:55).

[11] A similar point is made by Arendt when she discuss the organized torture of the concentration camp as ”calculated not so much to inflict death as to put the victim into a permanent status of dying” (Arendt 1944:58).

[12] The final passage of The Human Condition discuss the possibility of political action in contemporary society concluding: “In this existentially most important aspect, action, too, has become an experience for the privileged few, and these few who still know what it means to act may well be even fewer than the artists, their experience even rarer than the genuine experience of love for the world” (Arendt 1998:324).


On New Beginnings and Democratic Legitimacy

This paper is an inquiry into the legitimation problem of new beginnings of political communities, or put in another way, the problem of the origins of the authority of constitutional orders. The problem is that when a political community is constituted, the act of constituting is per definition unconstitutional or extra-legal; no law exists to provide it with legitimacy. For this reason, the question of the origins of legal orders falls, strictly speaking, outside the scope of legal theory.[1] The question is thus how we can understand new beginnings of political communities? Can there be any extra-legal criterion for distinguishing between legitimate and illegitimate political beginnings? And since ordinary law rests upon this beginning—the constitution—can we ultimately distinguish between legitimate and illegitimate laws? Or, will the constitution of law always be a manifestation of historical relations of domination as famously has been argued by Walter Benjamin; “Rechtsetzung ist Machtsetzung und insofern ein Akt von unmittelbarer Manifestation der Gewalt[2]? In that case we might just as well restate La Fontaine’s famous dictum: “La raison du plus fort est toujours la meilleure” and conclude that legitimacy is nothing but a mask of sovereign power to command.


In this paper I will look into the tradition of constituent power in two of its modern exponents: Emmanuel Sieyès and Hannah Arendt. This tradition argues against the tradition of sovereign power of domination as the origins of new beginnings. This tradition makes it possible to think new beginnings of politics on basis, not on power over, but on power to and power with, that is, democratic beginnings of popular sovereignty. In the tradition of constituent power, the origins of political power always reside with the many (the people, multitude, the demos, the ruled) and never with the few (the pope, the emperor, the king, the ruler): the political power of the ruler has its origins in the ruled themselves; power emanated from below, not from above. The ideal typical core of the tradition of constituent power is that sovereign power has to be understood as (at least) dualistic. The power to command (power over)—eloquently described by Jean Bodin: “There are none on earth, after God, greater than sovereign princes, whom God establishes as His lieutenants to command the rest of mankind”[3] which in political theory is understood as the core of sovereign power—has to be distinguished from the common power to create political communities and laws and in some cases depose these communities, laws or their instituted rulers (power to and power with).[4]


The problem of democratic legitimacy of new beginnings is however not easily solved within the tradition of constituent power because of an inherent tendency within the tradition of reproducing the sovereign power to command in the form of political theology, populism and sovereign dictatorship; as will be argued in this paper, the reference to “absolute foundations” (most often God, natural law or a deification of the people) opens up the possibility that popular sovereignty becomes dictatorial. Historically, and also recently, revolutionary new beginnings have been legitimized with reference to religion: the most recent example hereupon might be the Iranian Revolution of 1979.[5] The danger of political theology in the form of populism and sacralization of the people (and not the recourse to explicit religious foundations) is however the most potent danger in this tradition. Countless examples can be given hereupon but maybe Napoleon’s dictum: “Je suis le pouvoir constituant” is the most clear cut example. The power of the people can very easily tip over into a sovereign dictatorship, whereby the sovereign power to command is reproduced by the common will of the people.


The problem for this paper is thus how to think radical democratic new beginnings; anti-metaphysical or groundless new beginnings; new beginnings that do not become political theological or collapse into sovereign dictatorships. Can we have any criteria for legitimacy if we accept that new beginnings are arbitrary and groundless? What would they be? What does it mean to begin in a radical democratic way? I will discuss these problems on basis of readings of Emmanuel Sieyès’ What is the Third Estate? and Hannah Arendt’s On Revolution.




The inherent danger of popular sovereignty becoming dictatorial whereby the sovereign power to command is reproduced in a deification of the people is maybe most emblematically manifested in Sieyès political pamphlet, What Is The Third Estate?, written in 1789 shortly before the outbreak of the French Revolution. In this pamphlet—‘the bible’ of the French Revolution—Sieyès seeks to solve the legitimation problem of revolutionary new beginnings of popular sovereignty. More specifically, the question Sieyès tried to answer is why it is legitimate that the Third Estate (composed mainly of the bourgeoisie) was entitled to act on behalf of the French Nation as the constituent power and draft and ratify a (new) constitution for France. Or in the words of this paper, Sieyès tried to make a case for why the political new beginning of the French Revolution is not merely an arbitrary act of violence. The pamphlet is of course dated in its discussion of the Third Estate (the discussion of which I will hence leave out), but through its logic we might be able to understand some of the problems extra-legal theories of new beginnings by popular sovereignty (or revolutionary new beginnings) face also today.


Sieyès tried to solve the problem of extra-legal legitimacy of constituent politics with his famous distinction between pouvouir constituant (the nation) and pouvoir constitué (the government), where the pouvoir constituant is the source of both legality and legitimacy: “The nation exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself. Prior to the nation and above the nation there is only natural law.”[6] Due to the magnitude and dispersity of the members of the nation, the common will of the nation always have to be represented by a “government by proxy” to exercise its rights.[7] The notion of representation is maybe the most problematic of Sièyes’ concepts since the government by proxy (the office and the individual representatives) can belong both to the constituted power (ordinary representatives) and the constituent power (extraordinary representatives).[8] The ordinary representatives, the government, are bound by the constitution and they are a product of positive law; the government is legal if it acts in accordance with the constitution it has been bound to by the nation. The nation, on the other hand, and those to represent it, is not bound by any constitution; the constitution is solely meant to bind the ordinary representatives.[9] It would be absurd, Sieyès argues, if the nation could bind itself with a constitution. “What is a contract with one self?” he asks mockingly.[10] The nation always exists in a state of nature and it therefore has a perpetual right to overthrow any government or any constitution.


If a situation arises where the constitution itself is disputed among the ordinary representatives, the nation (the constituent power) has to be consulted and decide upon the disputed constitution: “Even if the nation had held regular sessions of the Estates-Generals” Sieyès argues, “it would not be up to this constituted body to pronounce upon a dispute affecting its own constitution.”[11] The question is thus how the nation is to be consulted and who are entitled to do that? Regarding the latter, Sieyès argues that it is the duty of everyone, not least the executive power. The problem is of course how the nation is to pronounce it verdict since it, following Sieyès’ argument, only can act through representation. Here the extraordinary representatives of the nation come into the picture. As the ordinary representatives they are a “government by proxy,” but in contrast to the ordinary representative they are not bound by anything; they act from a state of nature and their will is law: “Extraordinary representatives have whatever new powers it pleases the Nation to give them.”[12] The extraordinary representatives therefore erase the distinction between constituent and constituted power: it is a government that is not bound by a constitution. They can do anything, anything at all, because they, allegedly, act on behalf of the nation.


Sieyès’ fundamental distinction between pouvoir constitué and pouvoir constituant that makes up the heart of his argument thus collapses due to his understanding that the nation though unconstituted and in the state of nature, still bears the mark of the constituted form of representation. Representation requires some criteria of recognition and legitimation (e.g. rules of election) to provide the extraordinary representatives with the authority of the common will of the nation. A claim of informal representation can of course be made, but those claims are very doubtful since no criterion of legitimation exists for whether the extraordinary representatives speak on behalf of the nation or not. Further, it is hard to see why informal representatives, without any further criteria of legitimation, enjoy a greater authority than the ordinary representatives, who, at least potentially, have the legitimacy of the popular vote. In the case of the French Revolution, the Third Estate had not received the authority to act on behalf of the constituent power from anyone: they merely claimed the authority of the constituent power: Nous sommes le pouvoir constituent!


The same claim of authority was made by Napoleon Bonaparte some 15 years later and the unpleasant truth is that the problem of the legitimacy of the Third Estate and Napoleon as extraordinary representatives of the people are identical. For this reason it is not hard to see how Sieyès’ theory of the nation as the origins of law and the legitimacy of new beginnings easily can flip over into a sovereign dictatorship: in the name of the nation, one or a few men can implement any law they want without consulting anyone because they enjoy the legitimacy of the constituent power. This problem is however not only due to Sieyès’ problematic understanding of representation but also his understanding of the nation as the subject of the constituent power. The nation is, for Sieyès, a secularized version of the divine right of kings, and in that way, pure political theology. The notion of the nation as the constituent power is problematic not only because it is metaphysical but also because it is prepolitical, naturalized, and therefore not politically contestable. Furthermore, the idea of a common will of the nation has some strong totalitarian traits because the political community is reduced to one individual will which therefore easily can be represented by one man, one leader. If the will of the people really could be reduced to the will of one individual person—a perfect consensus—democracy indeed seems compatible with dictatorship.  In Sieyès’ theory of constituent power, the legitimate origins of law founded on the power of the people, can ultimately not be distinguished from sovereign dictatorship, that is, the establishment of new constitutions by the dictator representing the sovereignty of the people. In the following I will engage with Hannah Arendt’s comparison of the American and French Revolution and discuss whether a more promising understanding of democratic new beginnings can be found within her political theory.




Sieyès theory of popular sovereignty is according to Arendt the theoretical manifestation of the failure of the French Revolution. The problem is, Arendt argues, that legality and legitimacy are anchored in the same entity: the nation. By making the will of the nation (sacralized and in the state of nature) the answer both to the question of the legitimacy of the new power (the extraordinary representatives of the people: the Third Estate) and to the question of the legality of the new laws (the constitution imposed by the Third Estate), Sieyès and the men of the French Revolution created a foundation “built on quicksand” since the will of the nation, if anything but a legal fiction, will be ever changing.[13] “What saved the nation-state from immediate collapse and ruin,” Arendt writes sarcastically “was the extraordinary ease with which the national will could be manipulated and imposed upon whenever someone was willing to take the burden or glory of dictatorship upon himself.”[14] The destiny of the Sieyès’ conception of the nation was in this way from the very beginning Napoleon Bonaparte’s declaration, je suis le pouvoir constituent, which, as it happens, was the same as saying: L’État, ce moi!.


In contrast to Sieyès, Arendt insists on breaking the triad: legality/law, legitimacy/authority, people/nation. The source of legality, Arendt argues, is the constitution which in contrast to the ever changing will of the nation, is a tangible object and for that reason it provides some kind of endurance and stability. The nation is however also disregarded as the source of legitimacy of the constituent subject because of its political theological or metaphysical implications of the deification of the people. The deification of the nation is, according to Arendt, the most recent and most dangerous manifestation of the tradition of “absolutes” or political theology.[15] This tradition of political theology and “absolute” legitimation is however tied to a very specific notion of law, namely, the theory of law as command that according to Arendt is Hebrew in origin and is represented by the “Thou shalt not” of the Decalogue.[16] It is thus the inheritance of this tradition, the inheritance from absolutism and of law as command that makes Napoleon the inevitable destiny of the French Revolution and the political theory of Sieyès.


In contrast hereto, Arendt argues, the American Revolution had a totally different understanding of law which had its legacy in Roman republicanism and the political theory of Montesquieu.[17] In this tradition, law is not understood as a command with a divine author but as a mutual agreement between human beings: law is human, and not divine, in origin.[18] The law is, in this tradition “no more than ‘rules’ or règles which determine the government of the world and without which a world would not exist at all.”[19] In contrast to the men of the French Revolution, Arendt argues, the men of the American Revolution understood that only power founded upon promises, covenants and mutual pledges, and not the power of the nation which amounted to nothing more than a disguise of the divine commandment of the king, could be a legitimate foundation for law.[20] In this tradition, the constitution would be a mutual agreement which constitutes the realm of the political.


The question of legitimacy of this initial agreement which establishes the constitution, or, in Arendt’s words, the authority of the legal system, has still not been answered. It is difficult to answer this question since metaphysics and political theology have to be left out in principle and constituent power, therefore, has to be thought from the fundamental condition of modernity, namely groundlessness, without falling into the normative void of nihilism, where all constitutional acts would amount to nothing more than arbitrary acts of violence. Arendt tries to overcome this problem by arguing that the act of constitution-making carries within itself an immanent principle of legitimation or authority. In contrast to the men of the French Revolution, the men of the American Revolution did not respond to the collapse of the legitimacy of “absolutes” in modernity with a deification of the people; instead they found an immanent authority in the performance of the constituent power; they derived an authority from the act of a political new beginning itself.[21]


This understanding of an authority immanent to the action of foundation did not rely on any absolute; if it was religious in any sense, Arendt argues, it was only in the Roman sense of religare; in binding oneself to the beginning of the political community, which in the American case manifested itself in a “worship” of the constitution.[22] What provides authority is however not the constitution in the sense of the written document, but the constituent act, the new beginning; the foundation of authority is in this way a performative immanence and not an external absolute principle.[23] This immanent principle of new beginnings saves the act of foundation from the inherent arbitrariness of new beginnings: it saves the American Revolution from becoming an arbitrary act of violence as the French terror.[24] The principle inherent to the new beginnings was exactly a contractual understanding of law as the constitution of the political realm on the basis of common deliberations and the strength of mutual pledges built on the combined power of the many.[25] In this way, Arendt argues, it is possible to think political new beginnings that are neither arbitrary acts of violence nor consolidations of relations of domination.


 The experience of founding new political beginnings is an experience of freedom: the experience of bringing something new into the world together with equals. In The Human Condition, this experience is also the experience of true political life, which is based upon freedom and equality; politics consists in the human capacity to speak and act together and bring something new into the world.[26] Whether this form of beginning is democratic, and what that might mean, has however not been established yet. A way of illuminating this question might be to ask two other questions: firstly where, or in what space, does politics (the mutual promises and the common deliberation etc.) take place? And, secondly, who is the subject of the constituent power, who participates in this founding of new political beginnings?




“Political freedom,” Arendt argues “means the right ‘to be a participator in government’, or it means nothing.”[27] In the time of the American Revolution this experience of freedom took place in the town hall meetings, councils or wards and for this reason political freedom evolved from the bottom and not from the top in the American Revolution. The council system arose spontaneously during the revolution and presented a space of public freedom: a space where people could speak and act together and give birth to new political ideas and changes. The council system presented an entirely new form of government manifested in the experience of self-rule and the abolition of the distinction between ruler and ruled. After the revolution this experience was however lost because the constitution did not institutionalize the new public spaces that appeared with the councils. Hereby the “revolutionary spirit” was lost. 


The council system—the revolutionary spaces of freedom which were manifested in the soviets in the Russian Revolution and in the period of the French Revolution in the Paris Commune—was however not meant to be merely a short lived phenomenon of the revolutionary years; it was meant to be an entirely new form of government that persisted after the revolution; it was meant to be the constitution of freedom.[28] The council system was “nothing more or less than this hope for a transformation of the state, for a new form of government that would permit every member of the modern egalitarian society to become a ‘participator’ in public affairs, that was buried in the disasters of twentieth-century revolutions.”[29] In this way, the problem of representation which was discussed in relation to Sieyès is avoided in the council system because the people actually meet and develop their opinions with one another in the councils. During revolutions—here Arendt mentions the February Revolution of 1917 and the Hungarian Revolution of 1956—councils of many different kinds (councils of workers, soldiers, peasants, neighborhood, students, youths, writes, artists and so on) developed spontaneously and independently of the so called “professional revolutionaries” (parties and charismatic leaders).[30] Here Arendt presents some quite extraordinary claims: out of the “elementary conditions of action itself” in these spontaneously developing councils, the principle of consociation and confederation (“the federal principle”) arose.[31] This development, was aimed towards the common object of establishing a confederation of “elementary republics” (the councils), uninfluenced and independent of theoretical speculation or a threat of a common enemy.[32] Further, the “discovery” of the divisibility and separation of powers lies immanent in the action belonging to confederation because the councils are “jealous of their capacity to act and form opinion.”[33]


This new and spontaneously developing form of government—the federation of councils—was however crushed by professional revolutionaries and their concern, not for politics in the Arendtian sense, but for welfare of the people, or “the social question,” which led to the establishment, not of a council system, but of a party system. Where the councils were spaces of freedom where opinion could be developed and expressed, the parties were at best capable of representing the socio-economic interest of their voters.[34] In this way, Arendt argues, “the relationship between representative and elector is transformed into that of seller and buyer.”[35] The party system and the welfare state, Arendt argues, spell the end of politics because the people no longer participate in common deliberation and opinion making and their happiness is a private one.[36] In this way, opinion is reduced to interest, the people are reduced to the mass or the mob, politics is reduced to administration and the politicians are reduced to experts. In this way, Arendt argues, the ‘obsession’ with the social question—the ‘obsession’ with the socio-economic welfare of the people—led the welfare state, as it earlier had led Sieyès and the French Revolutionaries, to replace “the formula ‘government of the people by the people” by this formula: ’government of the people by an élite sprung from the people.’”[37]




At this point, it is however important that we raise the question of who the subject of the constituent power is according to Arendt. Even though politics concerns not only the many but everyone, the life of politics will always be the life of the few.[38] In her eagerness to contrast the opinion making of the councils from the social question, Arendt argues that councils concerned with socio-economic matters, such as workers’ councils cannot be understood as true examples of the council system:


“The councils have always been primarily political, with social and economic claims playing a very minor role, and it was precisely this lack of interest in social and economic questions which, in the view of the revolutionary party, was a sure sign of their ‘lower-middle-class, abstract, liberalistic mentality. In fact, it was a sign of their political maturity, whereas the workers’ wish to run their factories themselves was a sign of the understandable, but politically irrelevant desire of individuals to rise into positions which up to then had been open only to the middle class.”[39]


The problem with the workers’ councils is, according to Arendt, that they are not concerned with the sphere of human relations, whose principle is freedom, but the sphere of life, whose principle is necessity: “The councils in the factories brought an element of action into the management of things, and this indeed could not but create chaos.”[40] Ultimately, Arendt argues, the workers’ councils failed because they tried to implement politics in the anti-political socio-economic sphere of labor, and the party system succeeded because of its anti-political oligarchic or autocratic structure of management.


As an alternative to these failures, Arendt proposes that the sphere of politics has to be purified form the socio-economic concerns of the welfare state, which is the same as saying that the social question should play no role in revolutionary politics. The public spaces of the councils, though in general open to the public, ought to be inhabited by the political elite (different from the social, cultural and professional elite) who will choose themselves in these public spaces. The political elite will be the guardian of political freedom and give birth to the law of the land; they will preserve the constitution through augmentation.  This “aristocratic” form of government will however spell the end of general suffrage: “for only those who as voluntary members of an ‘elementary republic’ have demonstrated that they care for more than their private happiness and are concerned about the state of the world would have the right to be heard in the conduct of the business of the republic.”[41] In this way, Arendt argues, political exclusion of the federal council system would be “self-exclusion”: the people who do not choose to rise from the ranks of the necessity of mere life and courageously participate in the world of politics and public happiness do not have the right to participate in government. Instead they can enjoy the freedom from politics, which adequately was captured in the words of Benjamin Constant: “Poor men look after their own affairs; rich men hire stewards.”




Arendt’s rigorous distinction between the political and the social is one of the most problematic in her work, and it is the reason why her theory, in the end, becomes anti-democratic. Regarding the councils as space of pure politics a couple of points will have to be made. Firstly, it seems that Arendt in her eagerness to save the councils from the fate of the nation-state—which she ultimately perceives to be one-party dictatorship [42] or the Holocaust[43]—and her following rejection of the social sphere, she deprives the councils of all the content they historically had and all the content they imaginable could have. If the members of the councils are not supposed to be concerned with the social question, then what will they talk about and act upon, a part from maybe war and amendment rules (which in addition seems to present an uncanny combination), when they have decided upon the form of government?  Further, who, if not the councils will decide upon everything else? If the councils are “islands of freedom” in the “sea of necessity,” [44] then who will make the laws of the sea? Arendt remains silent upon this point, but since they are merely “technical” questions in her opinion, on might speculate that a technocracy or a bureaucracy seems not to be incompatible with her theory as long as they do not enjoy any “political powers.” If the councils are not concerned with the social it is however hard to imagine how they could give laws to such a technical administration of the social whereby they could have been able to restrict the totalitarian tendencies of the no-man’s rule of bureaucracy which Arendt herself was so afraid of. In a system were politics and the social are totally separated, the domination of the bureaucracy seems only to grow and politics to amount to very little.


It is confusing that Arendt concludes her discussion of the council system in On Revolution with a glorification of the purity of politics since her case studies of the American, Russian, and Hungarian Revolution speak directly against such a conclusion. All or most of the council she enumerates in On Revolution are exactly concerned with pragmatic questions that fall outside the scope of pure politics: councils of workers, soldiers, peasants, neighborhoods, students, youths, writers, artists. None of these councils, which Arendt rightly perceives evolve from civil society or from “below,” would be interested in “pure politics.” The councils would, in general, be concerned with “politics of small things”[45] which cuts across the distinction between the social and the political; concrete cases of broader questions such as how to organize society, questions of production, of education and healthcare, questions of how to take care of children and elderly people, questions of individual, political, and social rights.


It was exactly this organization of civil society which so impressed Alexis de Tocqueville and made him conclude that only “the habits of the heart”[46] developed in civil and political associations can save modernity from sinking into tyranny. The political associations, Tocqueville argues, are however the most important because they teach people how to act in concert about governing their own society whereby they will lose the illusion that they are independent of other people and that they could do without society: political associations are “the great free school to which all citizens come to be taught the general theory of associations.”[47] The problem inherent to modernity of the atomization of the body politics (the problem of “individualism” in the terminology of Tocqueville) will be defeated because people constantly are reminded that their well being as well as the well being of their fellow men is dependent on their ability to act in concert. Perhaps Arendt is in agreement with Tocqueville on this point and believes that once people have learned the lessons of political associations and have been given both the taste and the freedom of association they will start to associate both for important and trivial matters and a culture of civil associations will start to bloom. Thus the organization of social life (though still distinguished from politics in the Arendtian sense) would be organized spontaneous and from below.





The Tocquevillian argument is crucial for Arendt’s discussion of why the American Revolution was relatively more successful than the French Revolution. Where the French revolutionaries might have had a taste for public happiness or a theoretical idea of public happiness; the American society, in general, had had an experience of public happiness: “The point of the matter is that the Americans knew that public freedom consisted in having a share in public business, and that the activities connected with this business by no means constituted a burden but gave those who discharged them in public a feeling of happiness they could acquire nowhere else.”[48] The argument latent in On Revolution is that the American Revolution succeeded where the French Revolution failed because, the new beginning of the body politic was not entirely new; the American people were already enjoying a strong civil society with a flourishing associational life and they were organized politically, though informally, in the town halls. A similar argument is made by Arendt in What is Authority?:


“More important, perhaps, was that the act of foundation, namely the colonization of the American continent, had preceeded the Declaration of Independence, so that the framing of the constitution, falling back on existing charters and agreements, confirmed and legalized an already existing body politic rather than made it anew. Thus the actors in the American Revolution were spared the effort of ‘initiating a new order of things’ altogether; that is, they were spared the one action of which Machiavelli once said that ‘there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle.”[49]


In this light, the French and not the American Revolution is an entirely new beginning; and the French Revolution failed exactly for this reason. It was a wild fantasy, a theoretical dream that envisioned, without any underlying experience, that anything, absolutely anything, was possible. The American Revolution appears on the other hand as little more than a consolidation of a preexisting though informal political society; the New England town halls.


Here we might ask: why then the fuzz about the new beginning? What happened with the American Revolution, according to Arendt, was exactly that the town hall meetings were not institutionalized and that the true spirit of the revolution hereby was lost. Why then is Arendt so obsessed with revolutionary new beginning since they are difficult, doubtful, and dangerous? The reason hereto, I think, goes to the center of Arendt’s work, namely her deep conviction that the crisis of the present world is political and that the “decline of the West” primarily consists in the decline of what she calls “the Roman trinity” of religion, tradition and authority (which in context of this paper could be translated to legitimacy) which makes up the foundation of the body politic. In modernity, no such foundation exists for politics, and the revolutions do in this light appear as “gigantic attempts to repair these foundations, to renew the broken thread of tradition, and to restore, through founding new political bodies, what for so many centuries had endowed the affairs of men with some measure of dignity and greatness.”[50] The new beginning, with its immanent source of authority or legitimacy is what can be thought of as a non political-theological or a non-metaphysical foundation under the groundless condition of modern politics. New beginnings are experiences of political freedom among equals and the mutual agreement and promises are an immanent source of authority: we will abide the constitution because it is our law: we created it for ourselves so that we can live a free dignified life together.




On Revolution is perhaps the greatest and most important theory of political legitimacy of new beginnings. Still, before we close, one more question has to be (re)addressed namely the question of the subject of constitutional politics. After distancing herself rigorously from Sieyès and the idea of ’government of the people by an élite sprung from the people” Arendt herself argues for an elitist understanding of politics. Arendt’s elite might not be identical with the other elites of society; though it seems unlikely that the elites, de facto, will not coincide. Even if they do not coincide, we again have to raise the question of legitimacy. It seems that the idea of an elite who selects itself without popular vote is embarrassingly close to Sieyès’ understanding of the extraordinary representatives of the nation. In both cases, a few ‘heroes’ select themselves without popular vote to devote their lives to politics and constitution-making. There are differences between the two models; the question is however whether Arendt’s model of elitist government is more legitimate than Sieyès’ model. Why are the political new beginnings or the laws decided upon in the councils, described by Arendt, legitimate? Why does it not degrade into a sovereign dictatorship à la Sieyès?


The root of the problem is that Arendt does not discuss whether the immanent principle of new beginnings carries within itself a criterion for the subject of the constituent power. At least at first sight it does not tell us who or how many ought to participate for the constitution to be legitimate. Arendt, it seems, cannot make up her mind on this matter: on the one hand, she clearly acknowledges that power originates in the many, but at the same time politics is the life of the few. As long as the public spaces, in principle, are open for the many, and the political elite is chosen on basis of self-exclusion, the fact that only few people participate in the political councils does not seems to present a legitimation problem for Arendt. Here Arendt does not take the radicalism of her own theory seriously. If the contractual understanding of law is to work, it has to include more than a few deputies who select themselves to devote their lives to politics. It has to be not only the many but everyone; since politics, as acknowledged by Arendt, is the concern of everyone.[51] The argument of immanent authority in the act of constitution-making is therefore, contrary to Arendt’s own argument, fundamentally democratic: it is not only for the elite but for everyone.


Here another problem arises, which we have to leave open, namely: who is “everyone”? For Arendt, “everyone” is “the sum total of citizens.”[52] A quick look at the number of non-citizens in European or Western countries (immigrants and refugees, “legal” and “illegal”) or even better Arendt’s own analysis of the problem of refugees and stateless people in The Origins of Totalitarianism[53] will very quickly make it clear that everyone cannot unproblematically be equalized with the sum of all citizens. Territory is however also a problematic demarcator for political inclusion/exclusion since many laws today are without territory, or exceeds the territory in which they have been agreed upon. In a globalized world, international law (especially international law concerning “social matters” such as control of international capital and enviromental policies) are the concern of all human beings living on the planet. To what extent the pyramidic structure of councils envisioned by Arendt, where legitimacy or authority is produced neither at the bottom, not at the top, but at each layer of the pyramid,[54] can be enlarged beyond the territories that today belong to nation-states, and to what extent this is desirable, is an open question. A theory of radical democratic beginnings, or democratic legitimacy, would have to take this question of the subject of the constituent power seriously, since its immanent authority, proposed by Arendt, only springs from an actual feeling (sociological or phenomenological) of mutual promises and agreements of all the subjects of the law. Elsewhere, the immanent source of legitimacy has failed and the law will again have to be enforced by a monopoly of violence. The immanent source of legitimacy of the constituent power is democratic at its core and democratic legitimacy is not and cannot be elitist. Its power comes from grassroots of civil society and if it loses contact with its roots it will no longer live up to its name. Whether or how such legitimacy can be achieved remains, however, an open question.




Althusius, Johannes: Politica. Indianapolis: Liberty Fund, Inc. 1995.


Arendt, Hannah: The Human Condition. Chicago and London: The University of Chicago Press. 1998.


Arendt, Hannah: On Revolution. London: Penguin Books. 2006.


Arendt, Hannah: The Origins of Totalitarianism. Benediction Classics. 2009.


Benjamin, Walter: Zur Kritik der Gewalt, in Zur Kritik der Gewalt und andere Aufsätze. Frankfurt: Suhrkamp. 1965.  


Bodin, Jean: Six Books on the Commonwealth. Translated by M.J. Tooley. Oxford: Seven Treasures. 2009.


Brutus, Stephanus Junius: Vindiciae, Contra Tyrannos: or, concerning the legitimate powerof a prince over the people, and of the people over a prince. Cambridge: Cambridge University Press. 1994.


Goldfarb, Jeffrey C: The Politics of Small Things: The Power of the Powerless in Dark Times. Chicago: The University of Chicago Press. 2006.


Loughlin, Martin: The Idea of Public Law. Oxford: Oxford University Press. 2003.


Marsilius of Padua: Defender of Peace. Cambridge: Cambridge University Press. 2005.


Sieyès, Emmanuel: What is the Third Estate? in Political Writings. Cambridge: Hackett Publishing Company. 2003.


Tocqueville, Alexis: Democracy in America. New York: Anchor Books. 1969.


[1] Martin Loughlin. 2003. The Idea of Public Law. Oxford: Oxford University Press, p. 99-100

[2] Walter Benjamin. 1965. Zur Kritik der Gewalt, in Zur Kritik der Gewalt und andere Aufsätze. Frankfurt: Suhrkamp.  

[3] Jean Bodin. 2009. Six Books on the Commonwealth. Translated by M.J. Tooley. Oxford: Seven Treasures Publications, p. 80

[4] Three of the classical exponents of the theory of constituent powers would be Marsilius of Padua, Johannes Althusius and the Monarcomarcs (Stephanus Junius Brutus amoung others). In the writings of Marsilius of Padua (1275-1342), though he does not use the concept “constituent power,” the power to and the power with are manifested in the power to legislate and constitute the form of government; a power that resides, neither with the emperor nor with the pope, but with the multitude.  For Marsilius, the power of the multitude, or what later has been known as popular sovereignty, is double: the power to legislate and the power to institute rulers (See Marsilius of Padua. 2005. Defender of Peace. Cambridge: Cambridge University Press). In the writings of Johannes Althusius (1563-1638), the power to and the power with are to be understood as the power of associations (families, communities etc.) to come together and form a commonwealth. For Althusius, this power to constitute is superior to the power over (the power of the king) (Johannes Althusius. 1995. Politica. Indianapolis: Liberty Fund, Inc.). In the theories of the Monarcomarcs, the power to and the power with is manifested in the power of the people to kill the ruler if he has become a tyrant: the people’s right to tyrranicide (See Stephanus Junius Brutus, the Celt. 1994 Vindiciae, Contra Tyrannos: or, concerning the legitimate powerof a prince over the people, and of the people over a prince. Cambridge: Cambridge University Press).

[5] The Iranian Declaration of Independence Article 1.1 states the foundation of the Islamic Republic of Iran as being based on the belief in “the One God (as stated in the phrase ‘There is no god except Allah’), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands.” (

[6] Emmanuel Sieyès. 2003. What is the Third Estate? in Political Writings. Cambridge: Hackett Publishing Company (hereafter, Sieyès, What is the Third Estate?), p. 136.

[7] Sieyès, What Is the Third Estate?, p. 136.

[8] Sieyès, What Is the Third Estate?, p. 139.

[9] Sieyès, What Is the Third Estate?, p. 137.

[10] Sieyès, What Is the Third Estate?, p. 137.

[11] Sieyès, What Is the Third Estate?, p. 138-139.

[12] Sieyès, What Is the Third Estate?, p. 139.

[13] Hannah Arendt. 2006. On Revolution. London: Penguin Books (hereafter Arendt, On Revolution), p. 154.

[14] Arendt, On Revolution, p. 154.

[15] Arendt, On Revolution, p. 186-187.

[16] Arendt, On Revolution, p. 181

[17] Though Arendt does not mention it, this is of course the tradition of constituent power which goes back to Marsilius of Padua.

[18] Arendt, On Revolution, p. 179-180.

[19] Arendt, On Revolution, p. 180.

[20] Arendt, On Revolution, p. 173.

[21] Arendt, On Revolution, p. 190.

[22] Arendt, On Revolution, p. 190-191.

[23] “From this it follows that it is futile to search for an absolute to break the vicious circle in which all beginnings is inevitable caught, because this ‘absolute’ lies in the very act of beginning itself” (Arendt, On Revolution, p. 196).

[24] “What saves the act of beginning form its own arbitrariness,” Arendt writes “is that it carries within itself, or, to be more precise, that beginning and principle, principium and principle, are not only related to each other, but are coeval. The absolute from which the beginning is to derive its own validity and which must save it, as it were, from its inherent arbitrariness is the principle which, together with it, makes its appearance in the world.” (Arendt, On Revolution, p. 205).

[25] Arendt, On Revolution, p. 206.

[26] Hannah Arendt. 1958. The Human Condition. Chicago: Chicago University Press.  p. 8-9, 175-178

[27] Arendt, On Revolution, p. 210.

[28] Arendt, On Revolution, p. 256.

[29] Arendt, On Revolution, p. 257.

[30] Arendt, On Revolution, p. 259.

[31] Arendt, On Revolution, p. 259.

[32] Arendt, On Revolution, p. 259.

[33] Arendt, On Revolution, p. 259.

[34] In contrast to Sieyès, the participants of the political council—those few who cannot be happy unless they devote their love to public matters—are not representatives of the will or the interest of the people; they act in according with their own opinion. The distinction between interest and opinion is an important point for Arendt; where interest is of socio-economic character and belong to groups or classes or social strata, opinion solely belong to individuals who develop their opinion together with their equals within public spaces (Arendt, On Revolution, p. 219-221). Where interest is the apolitical concern of the professional revolutionaries or the bureaucrats of the welfare state, opinion is the true political concern of the participants in the councils. The failure of the French Revolution and the welfare state was exactly that they did not understand the importance of the “purity” of politics.

[35] Arendt, On Revolution, p. 268.

[36] Arendt, On Revolution, p. 261.

[37] Arendt, On Revolution, p. 269.

[38] Arendt, On Revolution, p. 267.

[39] Arendt, On Revolution, p. 266.

[40] Arendt, On Revolution, p. 266.

[41] Arendt, On Revolution, p. 271.

[42] Arendt, On Revolution, p. 258.

[43] Hannah Arendt. 2009. The Origins of Totalitarianism. Benediction Classics (hereafter: Arendt, Origins), p. 279-290

[44] Arendt, On Revolution, p. 268.

[45] Jeffrey C. Goldfarb. 2006. The Politics of Small Things: The Power of the Powerless in Dark Times. Chicago: The University of Chicago Press, p. 10ff.

[46]Alexis de Tocqueville. 1969. Democracy in America. New York: Anchor Books (hereafter: Tocqueville, Democracy), p. 277, 287.

[47] Tocqueville, Democracy, p. 522.

[48] Arendt, On Revolution, p. 110.

[49] Arendt, What is Authority?, p. 140-141.

[50] Arendt, What is Authority?, p. 140.

[51] Arendt, On Revolution, p. 267.

[52] Arendt, On Revolution, p. 267.

[53] Hannah Arendt, Origins, p. 269ff.

[54] Arendt, On Revolution, p. 270.

Refugees, nationalism, and political membership





This project aims to understand the problem of the refugee: both why it is that there are refugees in the world in which we live and what the possibilities are to address this universally regretted phenomenon. The problem of the refugee demands discussion because the refugee is central to both the theory and practice of contemporary constitutional democracy; the refugee functions as a test case for whether or not a world populated by constitutional democracies would satisfy the demand for the universal recognition of human rights. Leaving aside important differences for the sake of analytic clarity, one can summarize the situation thus: there is one current of theorization that argues that if the whole world was populated by constitutional democracies, or liberal nation-states, then there would be no human beings who were not recognized as members of rights-respecting states (as all human beings in the world would belong to some constitutional democracy or other)[1] and then another current of theorization argues that the reason why nation-states still do not know what to do with refugees is that it is not possible to solve the problem of the refugee within the framework of nation-states, and that we therefore have to go “beyond” the framework of nation-states.[2] The problem of the refugee thus creates a line of demarcation between the people who believe that the framework of liberal nation-states is the best system for the most possible people, and the theories that hold that the nation-state is a version of governmentality that always will tend towards totalitarianism. In this essay I engage in these two different currents by discussing the way in which Hannah Arendt describes the connection between the problem of the refugee and the rise of the modern nation-state, and how this theorization points in different directions for three contemporary political theorists: Seyla Benhabib, Peg Birmingham, and Giorgio Agamben. Arendt is the key figure for at least two reasons: firstly because she is the first to argue that the problem of the refugee is co-terminous with the rise of modern nationalism, and thus with the nation-state system in which and through which human rights (including those of refugees) have heretofore been articulated, and secondly because she is claimed by both theoretical currents responding to the defects of constitutional democracy.



Seyla Benhabib: the rights of “others”

 The starting point for The Rights of Others, is that the existence of “others”—refugees, immigrants, and asylum seekers (Benhabib, 2004, pp. 6)—points towards a dilemma in the heart of constitutional democracies between, on the one hand, sovereign self-determination (the undivided authority over a demarcated territory and the right to protect it) and, on the other hand, the adherence to universal human rights (the rights of all human beings regardless of their nationality) (Benhabib, 2004, pp. 2). These two principles—state sovereignty and human rights—are often in direct contradiction because the rights granted by nation-states only include citizens, and the rights granted by the declaration of human rights include all human beings regardless of their citizenship.


The tension of this “dual commitment” of constitutional democracies to sovereign self-determination and universal human rights is, Benhabib argues, neither to be bridged by calling for the end of nation-states nor by a system of world citizenship (2004, pp. 2). The point of departure for Benhabib is Kant’s Perpetual Peace, which put forward three conditions for a perpetual peace among nations: “The Civil Constitution of Every State shall be Republican,” “The Law of Nations shall be founded on a Federation of Free States” and “The Law of World Citizenship shall be Limited to Conditions of Universal Hospitality” (Benhabib, 2004, pp. 2). Perpetual peace among nations is to be reached through transforming all countries into republics, creating a federation of all the republics of the world (Völkerbund), and agreeing upon one single cosmopolitan right which is the right to be treated with hospitality when a person visits another country than his own (Benhabib, 2004, pp. 26-27). What Kant argues for is thus not “world government” (one world state) but a “world federation” among the free republics (Benhabib, 2004, pp. 39).


According to Benhabib, the key to the resolution of the tension in constitutional democracies between the exclusion of “others” by state-sovereignty and the inclusion of these same “others” within universal human rights rests at the basis of democratic sovereignty. The meaning of democratic rule, Benhabib argues, is that all members of the sovereign, the people, will be respected as bearers of human rights and that they freely associate to establish a rule of self-governance, meaning that they simultaneously are the authors and the subject of the law (2004, pp. 43). Within a democratic society in which this ideal is realized there is thus no contradiction between the rights of man and the rights of the citizen: they are co-implicated (Benhabib, 2004, pp. 43). If all human beings were to be included in such political systems the problem of the excluded “others” would be solved. However, there is always in real democracies, Benhabib argues, a split  between the popular sovereign and the territorial sovereign, that is, between the people who are both authors and subject of the law and those who are merely subjects of the law (2004, pp. 20). Historically, the last category in European and American democracies did (in different periods) not only comprise refugees, immigrants and asylum seekers, but also women, minors, non-propertied men, non-white people and non-Christians (Benhabib, 2004, pp. 45-46). These historical discontinuities in the definition of the people of these constitutional democracies show that the boundary between the popular sovereign and the territorial sovereign in the foundation of democratic sovereignty is not set in stone (Benhabib, 2004, pp. 45-48). Every act of self-legislation of the popular sovereign is simultaneously an act of self-constitution, in which the scope and identity of “We, the people” is redefined (Benhabib, 2004, pp. 45).  It is then possible for the popular sovereign through an act of self-legislation to reconstitute its own borders and thereby include some of the “others,” be that the women, the propertyless, the non-Christians or the foreigners. It is therefore in the heart of what Benhabib understands as the sovereign of democracy that she sees the potential to overcome the tension between national self-determination and universal human rights: through an act of self-legislation the boundaries and the identity of the demos, the popular sovereignty, can be reconstituted to include some of the “others.”


This act of self-constitution of the popular sovereignty (of “We the people”) that creates the distinction between the included and the excluded is, Benhabib argues, a fluid process of public debate and negotiations both inside and outside of the institutional framework which she names “democratic iterations” (2004, pp. 179). The concept of “iteration”—which Benhabib takes over from Jacques Derrida—is the process through which a concept acquires new meaning through repetition (juxtaposed to an understanding of the existence of an original source of meaning for a concept and all repetition as mere replication) (2004, pp. 179). Through an ongoing deployment, the iteration is a continual reconstitution of “the origin” and it is thus at the same time a dissolution of the original and its preservation (Benhabib, 2004, pp. 180).  The democratic iterations, through which the demos reconstitutes itself, make it possible to a larger extent to include the “others.” Furthermore, the democratic iterations have the potential, Benhabib argues, to give birth to new subnational and transnational categories of citizenship whereby they blur the line of inclusion and exclusion which was constituted with the Westphalian conception of sovereignty (2004, pp. 217). The EU, Benhabib argues, is a concrete example of this tendency; both because of its trans-national institutions (2004, pp. 217) and because of the partial political, social, and cultural rights which are granted to citizens of EU living in another EU-country than their own, e.g. the right to vote in local elections (2006, pp. 46), health care (2004, pp. 160), unemployment benefits (2004, pp. 160), educational subsidies (2004, pp. 161), and economic support to instruction in native language (2004, pp. 161).


Furthermore, Benhabib presents an argument for the moral obligations of liberal democracies not to permanently bar the “others” from full membership in the demos: “Theocratic, authoritarian, fascist, and nationalist regimes do this, but liberal democracies ought not to” (2004, pp. 135). The argument given is that of discourse ethics, namely, that there are some common grounds all participants in a conversation necessarily must agree upon. One of these common grounds is that it is not acceptable to bar out people from the demos on basis of their non-elective attributes[3] such as race, gender, religion, ethnicity, language community, or sexuality (Benhabib, 2004, pp. 138-139).


The concrete political changes that Benhabib calls for on basis of democratic iterations and discourse ethics are: firstly, nation-states’s recognition of the moral claim of first admittance of asylum seekers and refugees (that non-citizens have to be treated with hospitality when they are in another country than their own); secondly, for a regime of porous borders (it ought to be possible to obtain full-fledged political membership when non-citizens live in longer periods in another country than their own); thirdly, an injunction against denaturalization (2004, pp. 3). The challenge that lies ahead, Benhabib writes, is “to develop an international regime which decouples the right to have rights from one’s nationality status” (2004, pp. 68). Benhabib argues that institutions founded after the Second World War such as UN High Commissioner on Refugees (UNHCR) and the International Criminal Court as expressions of such a new “international regime” (2004, pp. 67).


I will suggest here that, attractive as this proposal is, Benhabib actually presents a solution to the tension in constitutional democracies between the dual commitment to sovereign self-determination and universal human rights that is insufficiently radical to resolve this tension. Benhabib argues that it is possible for the popular sovereign to include the “others” in the demos through the reconstitutional act of self-legislation and that we furthermore are morally obliged to do that (at least under certain circumstances). With the help of Arendt’s analysis, which Benhabib takes on to some extent but not in its full significance, I will voice three concerns about this position.


Firstly, I will challenge Benhabib’s understanding of present-day European democracies as characterized by democratic iterations: is it really the case that we as “people” of different nation-states have the possibility of reconstituting us self in democracy through legislation? This notion seem to require a huge extent of participatory democracy; something that does not, self-evidently, exist in European democracies, where the only political act for a huge part of the population is going to the poll every second year or so. The democratic iterations presuppose that the “people” are in dialogue with each other; a dialogue that, if it exists at all, might in reality only include a small elite. Even if we accept that these democratic reiterations might exist (at least in some areas within the European democracies) is it then likely that they exist on the level of the EU? How could democratic iterations exist on the EU level? The public debate of what the “European people” is, can mostly, if at all, be taken by the relatively few members of the parliament of the EU. It seems unlikely that the “people” of the EU—what ever that is—could reiterate themselves through self-legislation to include some of the “others.”[4]


Secondly, even if we accept Benhabib’s understanding of democratic iterations as foundational for Western democratic societies, is it then likely that the democratic iterations will lead to a greater extent of inclusion of the “others” into the demos, and not to a denaturalization of some of the people who already were a part of the demos: why should the scope of the demos become “wider” instead of “narrower”? Historically, it is true that for example women have been included in the demos but the opposite has also happened: as the denaturalization of the Jews in the Third Reich, the denaturalization of spies for the USSR, former Nazi criminals,[5] and suspected terrorists[6] in the US in the years after World War II until today, and the recent expulsion of Romas from France[7] bear witness to, the sovereign has the power both to grant and deprive individuals of their civic rights. Why then should we believe that the democratic iterations would lead to an inclusion of the “others” in the demos? Benhabib does not explicitly answer this question. Within her account the reason seem however to be, that since it is morally unacceptable to ban the “others” permanently, it is likely to be implemented by the demos over time. The argument for this assertion remains implicit in Benhabib’s argumentation; however as an heir to Habermas (Benhabib, 2004, pp. 12-13), Benhabib’s implicit argumentation seems to be that if the people of the popular sovereign realized that they cannot will the permanent exclusion of the others because their actions then would be a “performative contradiction” (because all the common grounds must be reciprocally acceptable), then they would reiterate the demos in a way in which the “others” were included. Leaving aside the question of whether discourse ethics as a normative system is persuasive or not, we must ask ourselves whether we really can expect something to be democratically introduced because it is “just” or “rational”? Is it not a reminiscence of the 19th-century conception of history having a direction towards a greater rationality? Is it not a long lost dream of the philosophers?


Thirdly, and most importantly for this essay, I want to challenge Benhabib’s understanding of the EU as an exemplar of an institution build upon cosmopolitan norms. Even though the democratic iterations of the EU—if they exist at all—might be able to create some subcategories of citizenship for the citizens of EU, this does exactly not help the refugees and stateless who do not have the privileges which goes with a passport from the EU. The “hospitality” shown within the EU does, primarily if not solely, apply to citizens of EU; people who already belong to another political community. It is true that the walls within the EU no longer are as strong as they have been, but that might only mean that the borders around the EU have become something tantamount to “new Iron Curtain,” as Szmagalska-Follis has recently argued (1989, p. 385-400). What I will suggest is that Benhabib is missing something fundamental in Arendt’s diagnosis of the problem of the refugee, namely, that the exclusion of refugees is an inherent problem of the nation-state and that we therefore might have to consider the possibility that the problem of the refugee is not solvable within a framework of nation-states. I will now try to qualify this claim by investigating Arendt’s diagnosis of the problem of the refugee.



Hannah Arendt: the problem of the refugee

In Origins of Totalitarianism the problem of the refugee is presented as the paradox that even though human rights are declared valid for all human beings regardless of their citizenship and nationality, human rights are only secured within nation-states. This paradox points towards a problematic and fundamental tie between the nation-state (particular rights) and human rights (universal rights). The problem of the refugee shows a fundamental bond in the West between nationalism, which is based on the principle of exclusion (only nationals, i.e. the people who are citizens by birthright, are citizens of the nation-state; only the citizens are equal before the law) and human rights, which are built upon the principle of universal inclusion (human rights are valid for all human beings regardless of nationality, culture, sex and the rest).


With what is commonly known as the Declaration of the Rights of Man, in the 18th century a new epoch of humanism, enlightenment and emancipation was announced: the Declaration announced that from now on man (and not religion or tradition) should be the source and fundament of Law (Arendt, 2009, pp. 290).  Independently of all former organization, independently of the privileges some nations and classes had obtained, the declaration promised a new age of universal emancipation: Liberté, Égalité, Fraternité. This conception of universal emancipation was however from the very beginning tied to the emancipation of a concrete people: since the sovereignty of the people—in opposition to the sovereignty of the monarch—was not proclaimed in the name of God but in the name of Man, the Rights of Man became a source of emancipation for a concrete people (Arendt, 2009, pp. 291). The French Revolution was a battle for emancipation of the French people and of France as a nation, but it was fought in the name of the universal emancipation of Man. The question of national emancipation was therefore from the very beginning blended together with the proclamation of the universal emancipation of Man (Arendt, 2009, pp. 291). The Rights of Man were therefore from the start tied to the rights of the citizens; something the very title of the French declaration of the Rights of Man bears witness to: Déclaration des droits de l’homme et du citoyen. Human rights were declared “inalienable” and for that reason no authority was evoked to establish them; Man was the source and the ultimate goal of human rights and therefore they were supposed to be independent of all government (Arendt, 2009, pp. 291). What the problem of the refugee shows, however, is that the moment a human being loses his nationality (and thereby his citizenship, and the protection of his national government) he is left only with the rights he can claim as a human being, and no institution, government or authority is competent to guarantee such rights (Arendt, 2009, pp. 292). With the Déclaration des droits de l’homme et du citoyen human rights are realised through the nation-state by the principle of equality before the law. This law does however only apply to citizens. From the very beginning the emancipation of Man is only realised through the emancipation of the citizen.


The implications of the equation of the Rights of Man with the rights of the citizen first became apparent when refugees who had lost their citizenship showed up in the European nation-states (Arendt, 2009, pp. 299). As the problem of the refugee shows, the Rights of Man—declared inalienable for all human beings—proved to be impossible to enforce whenever people appeared who were (de facto or otherwise) no longer citizens of any sovereign state (Arendt, 2009, pp. 292). The loss of citizenship meant that no government cared for them. The refugees became utterly rightless people who belonged nowhere and were welcome nowhere; they became “the scum of the earth” (Arendt, 2009, pp. 267).


What Arendt argues is however that the calamity of the refugees after the French Revolution—but especially in the 20th century—does not consist in their loss of human rights as they commonly are understood; the despair of the refugees does not consist in their deprivation of life, liberty, the pursuit of happiness, equality before the law and the freedom of opinion. Rather, the fundamental lack refugees suffer and represent is that they no longer belong to any community whatsoever (Arendt, 2009, pp. 295). The concern is not their inequality before the law, but rather their invisibility before it: they have no status before the law. They are not merely oppressed by the law; they are insufficiently visible for anyone to have an interest in oppressing them. Their opinions are not merely not valued; they simply have no voice (Arendt, 2009, pp. 294). The refugees did often enjoy more “freedom” than citizens imprisoned by the law, but the possibility for refuges to leave the country did not give them the right to become a part of a community anywhere (Arendt, 2009, pp. 296). The refugees might enjoy total “freedom of opinion,” but that did not mean that anyone would give them the possibility of uttering their opinions in a public space: it is the freedom of a fool to whom no one listens (Ibid.). In the refugee camps, their lives are sustained but this sustenance is due to charity and not to rights (Ibid.). The fundamental problem of the refugees is that they are totally expelled from all communities and political organizations—they are not worthy of being treated even like criminals or slaves, who both in some minor ways are included in a community (Arendt, 2009, pp. 295-297). The calamity of the refugee is not so much that they have lost their home, but that in a newly-reconstituted world of nation-states, it has become impossible for them to find a new home (Arendt, 2009, pp. 293). The refugees could not be assimilated into any community and no territory existed where they could create a new community on their own (Arendt, 2009, pp. 293-294). This was not grounded in overpopulation or material needs but because of the political organization of the nation-state (Arendt, 2009, pp. 294). With the global political organization of the nation-states, already in the aftermath of the First World War, and especially with the creation of the United Nations after the second, there was nowhere to go outside the nation-states and the world of the nation-state thus is the world of humanity. The implication of the equation of the Rights of Man with the right of the citizen was that the lack of citizenship de facto meant an expulsion from humankind as such (Arendt, 2009, pp. 297). The bitter irony of the principle of equality before the law is that it established a razor-sharp dividing line between the included and the excluded: either one is protected by the law as a full member of a nation-state and a human being, or one is not protected by the law whereby one not only loses one’s status of citizenship but also one’s status as a human being.


This is what it means to say that Arendt’s conclusion is that the calamity of the refugees consists in their loss of “the right to have rights,” by which she means, the right to belong to a political community where one is judged by one’s opinions and actions (Arendt, 2009, pp. 296-297). This right to have rights is in Arendt’s perspective the very fundament of human dignity (Arendt, 2009, pp. 297), and the loss of this right is thus much worse than the loss of the rights commonly attributed to the Rights of Man. In Arendt’s perspective, the Rights of Man have from the very beginning ignored the right to belong to a community as the fundament for human dignity. This stems from the tie between the Rights of Man and a conception of “human nature.” Because the Rights of Man are founded upon “human nature” they ought to be valid even though only one human being lived on earth; the rights of man are independent from human plurality and they ought to remain valid even if a human being was expulsed from the human community (Arendt, 2009, pp. 299). The idea of “human nature” is however a dubious category in Arendt’s perspective; not only because it has been formed and reformed over the cause of the history of Western philosophy and religion, but also because the “human” aspect of nature has become questionable to us: with the rise of destructive technologies such as the nuclear weapon human meddling with nature seems only to lead to a destruction of and alienation from nature (2009, pp. 298). Nature can no longer (if it ever could) serve as the fundament for the essence of Man: “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” (Arendt, 2009, pp. 301) In our society today a man who is nothing but a man will no longer be respected by his fellow human beings (Arendt, 2009, pp. 301). What the problem of the refugee shows is that a danger rests within our civilization of producing people who exactly are the abstract human beings that were envisioned in the 18th century but that these people have lost all human dignity.


The implications of the problem of the refugee are severe, in Arendt’s perspective, not only for the refugees, but also for the nation-state (2009, pp. 290). If a huge number of members of a society lose their political rights and are left to the mercy of the executive power, the principle of equality before the law will break down, and the nation-state will turn into a police-state and the possibility of totalitarianism will be born. Arendt suggests that the crisis of human rights implies the end of the nation-state because the refugees, by not being equal before the law, tear away the cornerstone of the nation-state, the principle of equality before the law. The calamity of the refugees dissolves the nation into a mass of over- and underprivileged and clears the way for the dissolution and final breakdown of the nation-state in a totalitarian society (Arendt, 2009, pp. 279, 290). Thus it is that the refugee not only presents a serious problem for the elaboration and protection of human rights but also for nation-states. This is the greatest perplexity of human rights and it is a problem we in some way or another have to deal with.


The question is whether Arendt can provide us with any answers on how to approach the problem of the refugee? Since, according to Arendt’s critique of the abstractness of human rights, it is only possible to secure individuals by national rights, the question is whether we have to give up altogether the notion of universal rights and confine ourselves within a conception of national rights? Is Arendt arguing that we should accept Edmund Burke’s claim that it is much wiser to proclaim his rights as the “rights of an Englishman”, than the inalienable rights of man? (Arendt, 2009, pp. 299) The problem with Burke’s position—if suggested as a solution to the problem of the refugee—is of course that not everyone has the privilege of proclaiming the “rights of an Englishman” and as history has shown us it has proved utterly impossible to solve the problem of the refugee within the framework of nation-states. In the interwar period in Europe, the international community attempted to solve the problem of the refugee within the framework of the nation-states either by repatriation (deportation to the country of origin) or by naturalisation (assimilation) (Arendt, 2009, pp. 281), neither of which, in Arendt’s perspective, did or could solve the problem of the refugee. With respect to repatriation, the country of origin would either refuse to recognize the repatriated as a citizen, or, on the contrary, the country of origin would want him back for punishment (Arendt, 2009, pp. 279). Repatriation failed when there was no country to which the refugees could be deported because no country would accept these people within their borders (Ibid.). Naturalization failed in solving the problem of the refugee because of the nation-state’s normal legislation that only “nationals,” that is, those who are citizen by birthright, can be citizens (Arendt, 2009, pp. 284). The huge number of refugees produced by the two World Wars only made the situation worse: as a consequence of the mass applications for naturalization some nation-states started to cancel earlier naturalizations instead of at least naturalising a minor percentage (Arendt, 2009, pp. 285). A third solution to the problem of the refugee discussed and rejected by Arendt is cosmopolitanism, as the creation of a world-state. Arendt does not believe in the world-state, simply because if it were the only state in existence, it could all too easily resort itself to programs of “denaturalization” (the deprivation of citizenship: a tool that was used in many totalitarian states Nazi Germany included and that, though Arendt did not live to see this, has been proposed in a number of European democracies in the face of the “integration debates” of the past generation). She concludes: “The crimes against human rights, which have become a speciality of totalitarian regimes, can always be justified by the pretext that right is equivalent to being good or useful for the whole in distinction to its parts” (2009, pp. 298-299).


The refugees, Arendt seems to suggest, could only be secured by human rights if they were at the same time granted citizenship, but history has shown us that this is impossible. It seems that Arendt, with the problem of the refugee, is presenting a crisis for the nation-states and human rights and at the same time she does not offer any suggestions on how to approach this problem. This is disputed by Peg Birmingham, whose attempt to work out an Arendtian approach to human rights is discussed below. As we will see, Birmingham argues that a central project in Arendt’s writings is a new formulation of human rights as the right to have rights, that is, the right for all human beings to belong to a political community, which calls for a fundamental restructuring of the relationship between the state, the people and the territory which constitutes the fundament for the nation-state. Before I turn to this attempt at a positive solution, I will however investigate the discussion of the problem of the refugee by another heir to Arendt, namely Giorgio Agamben.



Giorgio Agamben: homo sacer

Arendt’s diagnosis of the problem of the refugee (the refugee as the manifestation of the problematic tie between the nation-state and human rights) is the starting point for Agamben’s diagnosis of the problem of the refugee. Agamben agrees with Arendt that the reason why the refugee is not protected by human rights is that rights can only be attributed to Man insofar as he is also a citizen. From this we can draw the paradoxical conclusion that the refugee, in the eyes of the law, is not even considered a human being (Agamben, 1998, pp. 128-129). Contrary to Arendt, Agamben argues that the problem of the refugee is best understood, not as a historical problem born with the nation-state, but as a symptom of the problematic nature of sovereign power as such. Where the problem of the refugee in Arendt’s perspective is a symptom of the problematic historical connection between human rights and the nation-state, the problem of the refugee in Agamben’s perspective is a symptom of the problematic trans-cultural and trans-historical nature of sovereign power. In Agamben’s perspective, the exclusion of the refugee—homo sacer—is the original and fundamental activity of sovereign power, and the production of refugees as rightless human beings is thus not only a necessary implication of nation-states, but of all sovereign power. It is this connection between sovereign power and the rightless men that is the primary inquiry in Agamben’s homo sacer project[8], to which I will now turn.  


The starting point of the homo sacer project is the sovereign paradox: “The paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order” (Agamben, pp. 1998, 15). The sovereign is outside the juridical order in the sense that he has juridical immunity (the law does not apply to him) and he is inside the juridical order in the sense that he is the fundament of the juridical order. The structure of the sovereign paradox is the structure of the exception, in the sense that the sovereign is only included in the juridical order by his exclusion from it: the sovereign is the exception of the law, in the sense that the law applies to the sovereign by no longer applying (Agamben, 1998, pp. 15, 18). The core of state sovereignty lies in this exception: the sovereign is not defined by his monopoly to legislate but by his monopoly to decide whether the legislation applies or not.[9] The sovereign has the power to declare a state of exception, that is, the suspension of all laws. The state of exception, Agamben argues, is a threshold between inside and outside, between a normal situation and chaos, where the boundaries between law and violence become indistinguishable and everything becomes possible (1998, pp. 37-38). The state of exception is the originary and formal structure of the juridical relation, in the sense that the sovereign decides what is included in and what is excluded from the juridical order (Agamben, 1998, pp. 25-26). The state of exception is the principle of the law because it opens the very space of juridical order.


The exception as the structure of sovereignty is the originary structure of law, in which life is included in law by being suspended from it. This relation is named ban, that is, ban from the political sphere. The person who is banned is by his exclusion from the political sphere still included in the political sphere as an exception or an exclusion; he is abandoned at the threshold of society in a zone where the boundaries between law and life, inside and outside, disappear (Agamben, 1998, pp. 28). In this zone of pure ban, Agamben argues, the law does no longer prescribe anything, and it is oddly enough in this zone that the law affirms itself most rigorously, because literally everything becomes possible (1998, pp. 49-50). The pure ban is the zone where the law has no content and therefore the possibility of prescribing anything.


In this zone of indistinction a human being is trapped as the bearer of the sovereign ban. The banned is the refugee, the Friedlos, the “bare life” (Bloßes Leben), homo sacer. The existence of the banned is included in the political sphere only through his exclusion from the political sphere; he is abandoned on the threshold of society where the boundaries between violence and law become indistinguishable. Homo sacer—literally the sacred human being—is a figure from Roman law: he is the man no one can sacrifice, but everyone can kill without committing homicide (Agamben, 1998, pp. 71). At first glance, as Agamben points out, the definition of homo sacer seems to be a self-contradiction: if he is sacred why can everyone kill him without committing homicide? (1998, pp. 72) The question is in what does the sacredness of the sacred man consist? In order to make sense of this, Agamben states, one must recognize that “sacredness” is ambiguous: it is both something holy and something damned or tabooed; something “unclean” that has to be banned from the religious sphere (1998, pp. 77, 79). The ambiguity of the ban, i.e., the inclusion through exclusion implies the ambiguity of sacredness: the tabooed is included in the religious sphere by being excluded from it. Homo sacer, Agamben concludes, is not a holy man but a cursed man; homo sacer is banned and tabooed; he is an outcast, a Friedlos (1998, pp. 79).


Homo sacer, Agamben continues, is banned from both religion and society; from heaven and earth (1998, pp. 81-82). He is banned from ius humanum because everyone can kill him without committing homicide, and he is banned from ius divinum because the sacrifice would be a purification rite and not strictly speaking a death penalty (if homo sacer was sacrificed he would be purified and thereby included in the religious sphere). The sacratio of homo sacer is then a double exception; homo sacer is excluded both from the ius humanum and from the ius divinum; he is excluded both from the sphere of the profane and from that of the religious.


We must understand that it is this double exclusion and not the ambiguity of the sacred that constitutes the core of homo sacer; homo sacer is a product of the sovereign ban, the product of earthly, human action. Homo sacer is the human being who is trapped in the double exclusion; he is trapped in a zone where the distinction between sacrifice and homicide disappears. This zone of indistinction—the inclusive-exclusion from both ius humanum and ius divinum—is the sovereign sphere: “The sovereign sphere is the sphere in which it is permitted to kill without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere” (Agamben, 1998, pp. 83). The life of homo sacer, “bare life” or “sacred life”, is the first content of sovereign power, because the sovereign ban is the originary activity of the sovereignty, and the bearer of this ban is homo sacer. For this reason the problem of the refugee points towards the originary activity of sovereign power. In Agamben’s perspective, sovereign power is founded upon the exclusion of some human beings within the sovereign to whom the normal rules of the state do not apply. These human beings, the homini sacri, are a mirror of sovereign power as such because they are the exception that allows the “normality” to endure. The refugees, as homini sacri, are a locus where the truth about sovereign power as the sphere in which it is possible to kill without committing homicide discloses itself.


In the modern nation-state a new space comes into existence, i.e. the sovereign sphere as the zone of indistinction where homo sacer is kept and where everything becomes possible discloses itself: this new space is the concentration camp. The camp is not defined by its geographical boundaries but by its juridical placement outside the law; the camp is not born out of ordinary law but out of martial law, that is, out of a state of exception (Agamben, 1998, pp. 167). An important transition of sovereign power in the modern nation-state is, in Agamben’s perspective, the tendency towards declaring a “state of willed exception,” (2005, pp. 3; 1998, pp. 169) or the permanent state of exception. By this Agamben means that the state of exception becomes a “paradigm for government”: the exception is used, not out of necessity, but as a political tool of governmentality (2005, pp. 1, 30-31). The state of exception is “willed” because it is an extremely effective tool to carry out political actions that could not have been carried out under “normal circumstances,” that is, outside the “exception” of martial law. An example hereupon is the laws in Germany between 1933 and 1945. In 1933, when the Nazis took power, a state of exception was declared by the “decree for the protection of the people and State” (Agamben 1998, pp. 168; Agamben 2005, pp. 2). This decree remained de facto in force until the end of the war and in that sense Nazi Germany can be understood as twelve years of state of exception, that is, a permanent state of exception, a state where the exception has become the rule (Agamben 1998, pp. 168-169; Agamben 2005, pp. 15-16). The concentration camp is the space where the permanent state of exception is in full power. This means that the concentration camp is excluded from ordinary legislation and for this reason anything can happen within the camp: there are no laws within the camp except the law that no laws apply. This is the meaning of Agamben’s cryptic formulation that the law in the permanent state of exception is in force as the “Nothing of Revelation” (1998, pp. 51): the law does not prescribe anything but that does not mean that a sphere of freedom is created; the camp is, on the contrary, the space where the highest possible control of human beings is possible. In the camp, the law is in force without signifying anything. This space of the camp has become, in Agamben’s perspective, the “nomos” of the modern, meaning that the camp as a juridical space not only exists in concentration camps but potentially everywhere: in airports, in public areas and in outskirts of cities in which we live (1998, pp. 175). In modernity, the state of exception becomes a latent possibility everywhere, and it is thus always possible to reduce human beings to the naked life of homo sacer: the willed state of exception signals the permanent possibility of violent government without juridical control.


What is truly radical about the homo sacer project is the notion that the society we live in today is a permanent state of exception and that all of us (citizens and refugees alike) in all present-day societies (authoritarian and so-called democratic) are reduced to the naked life of homo sacer: “If today there is no longer any one clear figure of the sacred man, it is perhaps because we all are homini sacri” (Agamben, 1998, pp. 115). In State of Exception, Agamben presents a theoretical and historical introduction to the juridical notion of the state of exception. What becomes clear from his analysis is an inner relation between the laws in Germany between 1933-1945 (“Decree for the protection of the people and State”) (Agamben, 2005, pp. 2) and the USA Patriot Act from 2001, which was passed to protect “the national security of the United States” (Agamben, 2005, pp. 3): if you are suspected of endangering national security, your constitutional rights are de facto suspended.  With the USA Patriot Act as a role model, “terror-laws” have been passed in most of Europe and at least to that extent it is understandable why Agamben understands the permanent state of exception as the new paradigm for government (Agamben, 2005, pp. 1-4).  It is for this reason that Agamben argues that all present-day societies (totalitarian and so-called democratic) are ruled by a permanent state of exception where the law discloses itself as the pure “Nothing of Revelation” and where all human beings (citizens and refugees alike) can be reduced potentially to the status of the homo sacer and where all spaces can be transformed potentially into the juridical exception of the camp (Agamben, 1998, pp. 51).


Since, for Agamben, the origin of the problem of the refugee is the very nature of sovereign power, it is, in this view, necessary to challenge and overcome sovereign power as such, if the problem of the refugee is to be solved. Put another way, for Agamben, it is necessary to go beyond politics in order to solve the problem of the refugee. One attempt to go beyond politics would be a cosmopolitan solution, such as the construction of a world state; something that however is incompatible with Agamben’s philosophy. The cosmopolitan solution would be to include and unite all human beings in the world in one state and thereby do away with stateless and refugees simply by eliminating the plurality of nation-states. Following Agamben’s philosophy, this solution does however not challenge the problematic core of sovereign power. The production of the bio-political body of homo sacer would also be the fundament of sovereign power of the world state: there would therefore still be human beings who are reduced to naked life even though they, strictly speaking, might not be stateless or refugees. As countless examples from 20th-century history show—concentration camps are only the most predominant and surely far from the most recent example—it is quite possible to repress a part of the population within the boundaries of a state. Cosmopolitanism does therefore not even address the pivotal problem of sovereign power. If the problem of the refugee is to be solved, it is necessary to question the notion of state-power as such.


Agamben’s solution is in a way the very opposite of cosmopolitanism: instead of including all human beings in one world-state, what has to be done is a complete and total exclusion of all human beings by breaking down the territorial principle of nation-states. In short, if we want to solve the problem of the refugee, we must all become refugees. Agamben gives a concrete example by reference to the Israel-Palestine conflict and suggesting that Jerusalem become the capital of both Israel and Palestine (2000, pp. 23). In that way, Jerusalem is an extra-territorial space for both the Israeli and the Palestinians: no one really belongs there and, in that sense, everyone belongs there; no one belongs there more than the refugee. Agamben visualizes this reciprocal extraterritotiality by a reference to the Möbius strip: the reciprocal extraterritoriality is a locus where inside and outside, inclusion and exclusion, slide into one another (2000, pp. 24). In Agamben’s perspective, the breakdown of the territorial principle of the nation-state might open the possibility of annihilating the link between the human being and the citizen and make a reformulation of the notion of a people possible which is independent from state-power (Ibid.). This conception of reciprocal extra-territoriality, of the citizens as mutual refugees, serves for Agamben as a new political model for Europe; if we want to prevent the reopening of the extermination camps in Europe, Agamben writes, we have to question and ultimately abolish the state-nation-territory link (2000, pp. 23-24). 


Needless to say, this solution is both radical and problematic. The first question that comes to mind is whether this solution does not only make the situation even worse? How is it possible to address the permanent state of exception in which we now live where we are all implicitly reduced to naked life by conceiving of an even more radical state of exception where literally everyone is explicitly excluded? Why is it necessary to respond to the state of exception with an even more radical state of exception?


Agamben, in “The Messiah and the Sovereign: The Problem of Law in Walter Benjamin,” explicitly addresses the difference between the state of exception in which we are living where the law is in force, but does not signify anything (1999, pp. 170), and the real state of exception that somehow has the “potentiality” to overcome the problematic nature of sovereign power (1999, pp. 160), with reference to Walther Benjamin’s “Theses on the History of Philosophy” (Ibid.). Here, Agamben sees the possibility of going beyond the fundamental structure of law and sovereign power, and, drawing on Benjamin’s interpretation of the Messianic tradition names the real state of exception “The Messianic Kingdom” (Agamben, 1999, pp. 162).  Messianism in religious context signifies a radical transformation of law (Agamben, 1999, pp. 162-163) as such because the Messiah at the same time has to re-establish the law as it was before the fall and at the same time bring a new utopian world order (Agamben, 1999, pp. 166). The Messianic task is thus paradoxical: with Messiah, “the Law will return to its new form” (Agamben, 1999, pp. 167). In the Cabalist tradition the Law before the fall is God’s name written as a medley of letters without any order, that is, without any meaning; the law before the fall is utterly meaningless (Agamben, 1999, pp. 165). With this medley of letters that is God’s name, all other laws can be written, which means that the originary structure of the law is pure “potentiality”; something that might best be understood as Aristotle’s writing tablet, on which nothing was written and on which everything therefore could be written (Agamben, 1999, pp. 166). If this is so, the task of the Messiah is to bring a utopian renewal by re-establishing the law that has no meaning; by re-establishing a commandment that does not command anything (Ibid.).


The structure of this Messianic law is structurally similar to the law of the state of exception in which we now live, where the law is in force but does not signify anything. The question now is how the Messianic Kingdom differs from the state of exception in which we now live and thereby introduces the real state of exception that has the “potentiality” of overcoming the very nature of sovereign power (Agamben 2005, pp. 59-64). The task of the Messiah is to make a small displacement that seem to leave everything intact (Agamben 1999, pp. 167) and this is why Benjamin writes that in the Messianic Kingdom everything is as it is today, just a bit different (Agamben, 1999, pp. 160, 164, 174). In the Messianic Kingdom, “humanity will play with the law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good” (Agamben, 2005, pp. 164). This does however not answer the question without a further investigation into what that small “adjustment” or “displacement” is.


To understand the difference between the state of exception in which we now live and the real state of exception we have to make a distinction between two different forms of Messianism or nihilism: “a first form (which we may call imperfect nihilism) that nullifies the law but maintains the Nothing in a perpetual and infinitely deferred state of validity, and a second form, a perfect nihilism that does not even let validity survive beyond its meaning but instead, as Benjamin writes to Kafka, ‘succeeds in finding redemption in the overturning of the Nothing’” (Agamben 1999, pp. 171). The first nihilism is the “willed” state of exception in which we now live, where the law has been deprived of all content (there is no clear demarcation line between legal and illegal) but at the same time the law remains valid (all acts can potentially be judged illegal and all punishments can potentially be judged as appropriate); the law of the state of exception is “violence without any juridical form” (Agamben, 2005, pp. 59). The second nihilism is the Benjaminian Messianic Kingdom, in which not only the law has been deprived of all content but also of its validity: the law is no longer in force in the Messianic Kingdom. This is why Agamben concludes that the Messiah, in order to open a passage for the perfected nihilism, “must confront not simply a law that commands and forbids but a law that, like the original Torah, is in force without significance. But this is also the task with which we, who live in the state of exception that has become rule, must reckon” (Agamben, 1999, pp. 171). By which he means that the task for political action in contemporary society—the task of the Messiah—is not to challenge a law with a concrete content (which we might want to change); the law that has to be challenged in contemporary society is the law of permanent the state of exception (Agamben, 2005, pp. 58) that is, the law which is deprived of all content but still is valid; the law that has no content but has the force and validity to prescribe anything and pass any sentence.


The difference between the state of exception in which we now live and the real state of exception is that in the former the law is in force without signifying anything, and, in the latter, the law neither signifies anything nor is it in force. For this reason Benjamin writes that in the real state of exception everything is as it is now, just a bit different; the Messianic Kingdom is a small adjustment. This is why Agamben believes that the state of exception in which we now live can be transgressed only by an even more radical state of exception; the state of exception where the law is returned to its originary meaninglessness; to a medley of letter without any order. Even though Agamben does not discuss the connection, it seems to be obvious that this is the reason why, for his view, it is only possible to solve the problem of the refugee (which is in actual fact the one true locus where the horrible truth about sovereign power, namely, that everyone in the modern nation-state are homini sacri holds) by truly making everyone refugees, through an attack on the very fundament of the nation-state, that is, the trinity of state-nation-territory. The small “adjustment” that makes the difference between the state of exception in which we live and the Messianic Kingdom can be illustrated by the difference between homo sacer and reciprocal exterritoriality; between being a refugee in the nation-state and being a refugee in an aterritorial state.


An important question relating to the coming of the Messianic Kingdom has until this point in the analysis been excluded, namely the question of who the Messiah is or will be? Who are the (post)political agents in Agamben’s prognosis? Who is capable of returning the law to its originary meaninglessness? Agamben points to two different fictional characters as images of the Messiah: Franz Kafka’s the man from the countryside (The Trial, chapter 9: “The Cathedral”) and Herman Melville’s Bartleby (“Bartleby the Scrivener: A Story of Wall Street”). It is only possible here to briefly recall the story told to K. in the Cathedral about the doorkeeper who guards the door of the law and the man from the country who spends most of his life waiting, continually asking for the permission to enter the law that is never granted him, until he, just before he dies, is told by the doorkeeper that the door only was meant for him, that only he could have entered it, and that the door now will be closed. Agamben presents an interpretation of this story as an allegory of the law in the state of exception as being in force without significance: where the law is in force precisely because it does not prescribe anything, the door is impossible to enter precisely because it is open (Agamben, 1999, pp. 171). The fundamental aspect of both is the ban, that is, the exclusion of the man from the countryside from the door of the law and the exclusion of homo sacer from sovereign power. It is easy to interpret the man from the countryside as a “hindered Messiah”; an interpretation Agamben however rejects in favour of the reverse interpretation: the entire behaviour of the man from the countryside is a complicated strategy to have the door closed and overcome the force of the law (Agamben, 1999, pp. 173-174). The story tells us, Agamben writes, not of the failure of the man from the countryside but of the complexity of the Messianic task; of “how something has really happened in seeming not to happen” (1999, pp. 174).


The man from the countryside is the Messiah who overcomes the force of the law by constantly refraining from an action he is capable of (walking through the door); a behaviour that seem to be structurally similar to Agamben’s interpretation of Bartleby’s “I would prefer not to.” Neither the behaviour of the man from the countryside nor the behaviour of Bartleby is direct refusals to act. Instead, each actually expresses the potentiality both to act and not to act, that is, an expression of true potentiality which does not dissolve itself in actuality.  Potentiality, that is, the moment where the possibility of acting and not acting, being and not being co-exist, rests in the heart of Agamben’s conception of (post)political action. Bartleby’s “I would prefer not to” is the formula of potentiality (Agamben, 1999, pp. 253) because Bartleby could do what he is asked but he prefers not to; in Bartleby’s behaviour there is always the possibility that he could act differently. It is not immediately understandable why this notion of potentiality is crucial for Agamben; why is the potentiality to act and not act more important than the actualization of this potentiality? If we are to challenge the sovereign power and solve the political problem of homo sacer, then why is potentiality more important than action (the actualisation of the potential)? Why does Agamben point to two characters who prefer not to act as the image of he who is the only one that can overcome sovereign power by returning the law to its originary meaninglessness—the Messiah? 


Agamben does not explicitly discuss Benjamin’s “Critique of Violence” in his analyses of Bartleby and the man from the countryside as images of the Messiah; this connection is surely on his mind,[10] however, and can shed some light on the reason why (post)political action must lie in the heart of the potentiality and contingency (that which could have been its opposition). In Critique of Violence Benjamin argues that all violence as a means either is lawmaking or law-preserving, (Benjamin, 1996, pp. 236) which means that human actions under normal circumstances either will be an affirmation of the present law, or human actions will strive to transcend the present law by creating a new law. Since all law is pernicious—something that Agamben and Benjamin agree upon but for different reasons—it is only possible to overcome sovereign power by an utter destruction of the law without instituting a new law (Benjamin, 1996, pp. 246-250). This call for something which does not rest within the realm of means to ends since this realm necessarily will be either lawmaking or law-preserving. What is demanded in Benjamin’s perspective is violence as pure means, that is, violence as a means without ends; “divine violence” (Benjamin, 1996, pp. 249). Agamben’s conception of potentiality is an answer to what this divine violence is. Bartleby’s behaviour exceeds the realm of means to ends; he does not act to obtain anything; his behaviour is utterly deprived of meaning. Bartleby’s “I would prefer not to” is neither law-making nor law-preserving; Bartleby neither challenges the law by negating it nor does he reaffirm the law; he neither accepts nor refuses the law and in that sense he renders the law meaningless. In this sense the nihilism of Bartleby is structurally similar to Benjamin’s conception of divine violence. For both Benjamin and Agamben it seems to be only the nihilism of the divine violence that finally can destroy the force of the law by returning the law to pure potentiality, that is, its originary stage of meaninglessness.


The question is however whether we can accept this understanding of the conditions for political action. Is it not very dangerous to argue for a theory where the only possibility for political actions is the Bartlebyian gesture of “I would prefer not to”? Within Agamben’s diagnosis of contemporary society there is absolutely no room for full-fledged action, not even for the action of saying no, there is no possibility for political organization, even a hunger strike is precluded exactly because it also works within the categories of means and ends (I will start to eat again if you do so and so). Notwithstanding Agamben’s elegant explanation of how the Bartlebyian gesture has the possibility of leading us to the “Messianic Kingdom”, where everything will be a bit different, I would maintain that this is not the most likely result, should all critical political actions come to be like Bartleby’s gesture. I will argue against Agamben that it is dangerous to give up the possibility of political action and political organization. The challenge for a critical continuation of Agamben’s thinking, I will argue, is to find a position from which it is possible to criticise the problems of the nation-state without giving up the notion of political organization and political action. In the following section I use Birmingham’s proposal for an Arendtian reconstruction of human rights, so as to investigate whether we can find the potential, within Arendt’s philosophy, to think a possible way of overcoming the inherent problems of the nation-state that does not preclude political action and political organization.




Peg Birmingham: the right to have rights

In Hannah Arendt and Human Rights—The Predicament of a Common Responsibility, Peg Birmingham argues that much to the contrary of what is generally accepted, it is possible to find an argumentation for and a justification of universal rights within Arendt’s philosophy (2006, pp. 1-3). Birmingham argues that Arendt’s has a positive project of formulating a new universal principle of humanity that is to provide a guarantee for human dignity (2006, pp. 4). This new universal principle is the right to have rights, that is, the right to belong to a political community (Arendt, 2009, pp. 296). The starting point of Birmingham’s analysis is the introduction of Origins of Totalitarianism, where Arendt gives a short statement that might help us in understanding her position:


“Antisemitism (not merely the hatred of Jews), imperialism (not merely conquest), totalitarianism (not merely dictatorship)—one after the other, one more brutally than the other, have demonstrated that human dignity needs a new guarantee which can be found only in a new political principle, in a new law on the earth, whose validity this time must comprehend the whole of humanity while its power must remain strictly limited, rooted in and controlled by newly defined territorial entities.” (Arendt, 2009, pp. ix)


In Arendt’s perspective, Birmingham argues, the problem of the refugee demands that we reformulate the conception of human rights on the basis of a new understanding of humanity (Birmingham, 2006, pp. 6-12). As discussed earlier, the calamity of the refugees is not their loss of human rights as they normally are declared (life, liberty, the pursuit of happiness, equality before the law, and the freedom of opinion), but that the refugees are utterly excluded from any political community. The right to have rights, that is, the right to belong to a political organization where one is judged by one’s opinions and actions—exactly the right the refugee has lost—ought in Arendt’s perspective to be the new universal political principle; the new “law of the earth.” This right to have rights ought to be founded upon a new conception of humanity and have universal application but at the same time it ought to be instituted by new local governments with limited power.


Arendt’s conception of humanity is, in Birmingham’s interpretation, a critique of the conception of “human nature” that make up the foundation of the Rights of Man, that is, a sovereign subject who is endowed with inalienable rights (Birmingham, 2006, pp. 54-57). As earlier discussed, Arendt regards it as a fundamental problem of human rights that they apply to man and not men; that human rights, in principle, would be meaningful even though only one human being existed on earth (Arendt, 2009, pp. 299). This conception of human beings misses, in Arendt’s perspective, the fundamental human condition that “men and not man inhabit the earth” (Birmingham, 2006, pp. 7); that plurality, the fact that if there is ever anywhere a human being, this is so only because there is more than one human being and that we human beings are different. This, for Arendt, is the very foundation of human existence. In Arendt’s perspective it is therefore necessary to return to an understanding of human existence which is closer to both Aristotle and Heidegger: the nature of human beings is the bios politicos and human existence is always already Mittsein (Heidegger, 1962, pp. 154-155). It is therefore not meaningful to think of humanity on the basis of individual sovereign subjects: humanity has to be thought on the basis of a shared and common human world; put more practically, on the basis of possible membership in a political community.


In Arendt’s perspective, we are not born with rights; rights are something granted to us in a political community. The event of birth—the fact that we are born creatures—lies however at the heart of Arendt’s understanding of humanity. Arendt terms this condition of our existence natality and it is the most fundamental condition for human existence (Arendt, 1998, pp. 8-9). The event of birth is not only the physical and biological event of birth, but also the linguistic and political birth: that we are born creatures into a common world of speech and action. The principle of natality is twofold: the principle of “givenness” and the principle of “beginning” (initium) (Birmingham, 2006, pp. 104). The principle of givenness is based upon Heidegger’s notion of Geworfenheit (Heidegger, 1962, pp. 174); that we as human beings always are “thrown” into a web of circumstances which we as born creatures did not have any influence on. We did not choose our parents, our sex, or our culture ourselves: it is simply something that is given. The given is however nothing static or unalterable: the givenness of a people is a web of appearances that always is in flux with the birth of newcomers (Birmingham, 2006, pp. 102-103). The second principle of natality—the principle of beginning—refers to the miracle that new human beings are born into the world. In this miracle of birth, the human faculty of action, that is, the possibility of the beginning of something completely new, is founded too (Arendt, 1998, pp. 9). Together with the faculty of speech, action constitutes the human possibility of expressing, not only something, but oneself (Arendt, 1998, pp. 176). In speech and action we find the possibility of appearing to one another, not qua objects, but qua men (Ibid.); in speech and action we create the possibility of political life, which in Arendt’s perspective is the only dignified form of human life. The double principle of natality (givenness and beginning) is the foundation for Arendt’s rethinking the Right of Man, as the right to have rights, that is, the right to belong to a political community: “The miracle that saves the world, the realm of human affairs, from its normal ‘natural ruin’ is ultimately the fact of natality, in which the faculty of action is ontologically rooted. It is, in other words, the birth of new men and the new beginnings, the actions they are capable of by virtue of being born” (Arendt, 1998. pp. 247).


On the basis of this new ontology of the human as a person, Birmingham argues, Arendt wishes to advance the right to have rights—the right for each of us and every one among us to be born into a given political community where we can appear as dignified human beings—as the new “law of the earth,” and the true basis for actionable human rights claims. But to what does Arendt allude when she argues that this new political principle “must comprehend the whole of humanity while its power must remain strictly limited, rooted in and controlled by newly defined territorial entities”? (Arendt, 1998, pp. ix) The first part of the claim is easy enough to understand; the right to have rights applies universally; all human beings have to be included in a political community. What at first sight is puzzling is that this universal principle needs to be limited and controlled by new “territorial entities.” The institutional framework of the right to have rights ought to be nation-states that are totally deprived of nationalism (according to Birmingham that is what Arendt alludes to by “newly defined territorial entities”). For Arendt, on Birmingham’s view, the task of political theory today is “to find a political principle which would prevent nations from developing nationalism and would thereby lay the fundamentals of an international community capable of presenting and protecting the civilization of the modern world” (Birmingham, 2006, pp. 135). Nation-states without nationalism is a counterintuitive formulation: how is it possible to have a nation-state not founded upon nationalism? What Arendt is challenging here is the trinity of state-people-territory (Arendt, 2009, pp. 282) that provides the basis for the nation-state. In Birmingham’s perspective, Arendt argues that nation-states without nationalism entail an “open society that recognizes only citizens, not nationalities, and whose legal order ‘is open to all who happen to live in the territory’” (Birmingham, 2006, pp. 140). Birmingham speculates that Arendt envisions nation-states with open borders where all people who live within the nation-states territory are granted citizenship (Birmingham, 2006, pp. 140-141). These newly defined territories would recognize no nationalities, only citizens, and they would include all human beings who happened to live within the territories (Birmingham, 2006, pp. 140). By including all human beings in some political community or other, the refugee qua political category is totally exterminated because the right to have rights is universally valid and implemented. Just how this meaningfully differs from Benhabib’s proposal, rejected above, will be discussed in a moment.  


According to Birmingham, Arendt argues for the necessity of a federal juridical structure to provide international justice as a supplement to these new non-nationalistic nation-states. Birmingham engages in Arendt’s numerous discussions of the Israel-Palestine conflict to explain what this might mean in practice. According to Birmingham, Arendt envisions that Israel-Palestine is governed by numerous local self-governments on a small scale (2006, pp. 139) (each of which do not distinguish between Jews and Arabs in granting citizenships) in combination with a federated structure. This same federated structure ought, in Arendt’s view, be introduced in Europe as well: “In the long run, the only alternative to Balkanization is a regional federation which Magnes…proposed as long ago as 1943” (Birmingham, 2006, pp. 1389.


In her interpretation of Eichmann in Jerusalem, Birmingham suggests that the role of this federal structure is to establish an international criminal court. Birmingham refers to Arendt’s discussion of Jaspers’ proposal (originally framed in a letter to Arendt)[11] that Israel—after a thorough investigation and presentation of the fact in a trial—waives its right to pass judgement on Eichmann and appeals to humanity as such to establish an international criminal court. However, I disagree with this part of Birmingham’s interpretation: where Arendt is in agreement with Jaspers that the Nazi genocide was a crime against humanity (an attack upon human plurality as such, that is, upon a characteristic of the “human status” without which the very words ”mankind” and ”humanity” would be devoid of meaning”) (Arendt, 1992, pp. 268), she does not, in my opinion, agree with Jaspers that it is necessary to form an international criminal court. The main problem with Jaspers’ proposals, in Arendt’s perspective, seems to be their unrealistic nature: “They were indeed quite unrealistic in view of the fact that the U.N. General Assembly had ‘twice rejected proposals to consider the establishment of a permanent international criminal court’” (1992, pp. 271). Furthermore, Arendt seems to disagree with Jaspers in the sense that she believes it possible for Israel to provide a competent court for trying Eichmann in accordance with the Genocide Convention either by an extension of the territorial principle (according to Arendt that could easily have been done by defining “territory” not merely geographically but also as a political and legal concept: Israel as a body of the cultural community of the Jewish people)[12] or, by setting up an international court in Jerusalem (1992, pp. 271). According to Arendt, the last option was neglected because the trial against Eichmann in the eyes of Israel was a historical event: for the first time in history “Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice” (Ibid.).


That Arendt suggests that Israel could be competent to judge Eichmann on the basis of a reformulation of the territorial principle as the body of the Jewish people, points towards an interesting aspect of how Arendt rethinks the old trinity of state-people-territory. Arendt believes that—with the new conception of the nation-state—it will be possible to think of the people independently of the state. This principle is also the foundation of Arendt’s complicated commitment to Zionism. Arendt believed that the true commitment of Zionism is the constitution of a Jewish homeland in Palestine—not a “pseudo-sovereignty of a Jewish state” (Birmingham, 2006, pp. 139). This Jewish homeland ought to be structured around the Hebrew University, and it is in this way Arendt envisions the possibility of a non-nationalistic conception of Zionism (Ibid.). This is in Birmingham’s perspective also the reason why Arendt broke with Zionism herself when she saw what the state of Israel became centred around Israel as a sovereign state founded upon the old trinity of people-state-territory, with the exclusion of, and unequal status for, the Arab population as the predictable result (Birmingham, 2006, pp. 138-139).


According to Birmingham’s interpretation of Arendt, the right to have rights ought to be the “new law of the earth.” This new universal principle ought to be enforced by new territorial entities, meaning, open-bordered non-nationalistic nation-states based upon local self-governments. In this way it seems possible to argue for a fundamental questioning of the nation-state’s trinity of state-nation-territory without abandoning the possibility of political organization and political action: on the contrary, political action and political organization would be the very fundament of this new “law of the earth.”  


Birmingham’s proposal is in one sense quite similar to Benhabib’s proposal of porous borders and universal hospitality. The difference, I propose, emerges from attention to Arendt’s diagnosis of the problem of the refugee. Where both Benhabib and Birmingham adhere to Arendt’s principle of the right to have rights, the right to membership, only Birmingham accepts Arendt’s warning that it is not possible to guarantee this new “law of the earth” within the system of nation-states. Benhabib, as far as I can see, does not take Arendt’s warning that the problem of the refugee signals a crisis of both human rights and the nation-state sufficiently seriously. Where Benhabib argues that it will be possible for the nation-states to include the unspecified “others” through a strong adherence to the democratic principle of reconstitution of the demos through democratic iterations, Birmingham argues that it is only possible to include the stateless through a restructuring of the very fundament of the nation-states. Benhabib’s proposal of “universal hospitality” presupposes that the “others” are already citizens somewhere else: what Benhabib does not see is that the condition for being treated as a guest exactly is that the guests go home at some point and that the stateless no longer have a home to return to. Birmingham’s proposal, heavily indebted to Arendt’s writings, takes its point of departure in the insight that the nation-state cannot solve the problem of the refugee because the nation-states are the root of the problem of the refugee. Contrary to Benhabib, who argues that it is sufficient to adjust the framework of the nation-states, Birmingham argues that the problem of the refugee only can be solved by going beyond the framework of nation-states by constructing direct democracy on a small scale in non-nationalistic open-bordered nation-states.




In spite of the great differences between Arendt and these three thinkers following in her wake, they all are in agreement that the problem of the refugee points towards the state-people-territory trinity as integral to the modern nation-state, and thus a fundamental problem for life within pluralist democracies today. They agree that the challenge of the refugee is so serious that we must reconceptualise the very ground of the nation-state, if not try to move beyond the nation-state altogether. The nation-state is fundamentally problematic because of the singular way in which it identifies both polity, people, sovereign self-determination and nationalism. The basis of the nation-state is, as the very name suggest, double: nation and state. This means that the nation-state is build upon the Westphalian conception of sovereignty that states absolute sovereignty within a defined territory and the idea of a unified people belonging to this state. Only the nationals (i.e. those who are citizens by birthright) are citizens of the nation-state. This is what it means to say that the nation-state is founded upon the trinity of state-people-territory: the state enjoys absolute sovereignty over one people who lives within a demarcated territory. The problem of the refugee shows the fundamental problem of this system: what is to be done with the people who no longer belong to any nation, or, the people who belong to nations that do not have a state? The refugees could not be accepted anywhere because they either were not nationals, whereby they could not become citizens, or, they belonged to a nation that did not have a state (such as the Jews).


This is why Arendt, Agamben, Benhabib and Birmingham all find it necessary to challenge the nation-state’s trinity of state-people-territory. Benhabib understands the EU as such an attempt: the EU creates subcategories of citizenship to all citizens of the EU regardless of which nation they belong to within the region. Benhabib understands this as a shift towards a conception of political membership which is based upon where people live and not what nations they belong to. The problem of this solution is of course that it still only includes people who are nationals and citizens of their own country within the EU, and that therefore it does not present a solution of the problem of the refugee. Furthermore, Benhabib argues that the challenge that lies ahead is the construction of an international regime where the right to have rights, the right to belong to a political community, is independent of nationality.


Whereas Benhabib fundamentally believes that this will be possible within the framework of the nation-states, if they subscribe to deliberative democracy; Agamben and Birmingham suggest that it is necessary to go beyond the nation-states, if the trinity of state-people-territory is to be challenged. Agamben suggests that it is necessary to create a-territorial states where all inhabitants are to become reciprocal aliens: no one belongs there and in that sense no one belongs there more than the refugee. For him, the only solution to the problem of the refugee is that we all become refugees, and only then will it become possible to re-establish a notion of a people which is independent from the idea of state sovereignty (Agamben, 2000, pp. 23-24). It is not at all obvious that such a state of reciprocal ateritoriality is a desirable form of political organization: it might just make the situation worse by depriving all people in the world of their status as full-fledged citizens. This is however not a valid critique within Agamben’s theory since all people in the world already are deprived of their rights as citizens: according to Agamben we are all homini sacri. It is however hard to see how this change of political organization is to be accomplished, because Agamben’s theory excludes the possibility of political action and political organization: political action must come from the scarce ground of the inmates in the camp or the Bartlebyian gesture of “I would prefer not to.”


It is an interesting question where Arendt stands in relation to the challenge of the trinity of state-people-territory, because she is claimed it possible to solve the problem of the refugee within the framework of the nation-state (in this essay represented by Benhabib) and the theorizations that find it necessary to go beyond the nation-states, if the problem of the refugee is to be solved (in this essay represented by Agamben). I have engaged in Birmingham’s interpretation of Arendt in this essay, which lies in-between Benhabib’s and Agamben’s, but possibly closer to Agamben’s. Birmingham argues (in closest conversation with the widest survey of Arendt’s own writings) that it is possible to argue for a new universal principle of the right to have rights—the right to belong to a political community where one can speak and act among equals—which is to be guaranteed by non-nationalistic open-bordered states that will grant membership, not on the basis of nationality, but to all the people who happen to live, and come to live, within the territory. Needless to say, this is a revolutionary thought that would revolutionize fundamentally the political organization of the whole world; at the same time, however, it is structured around the democratic ideal, which also Benhabib adheres to, namely that of local democratic self-governance. 


Within Arendt’s theory, in contrast with Agamben’s theory, political agency is not only possible—it is the core of human existence as such. Action rests within human beings as a permanent immanence and political change is therefore always a possibility where human beings share a common life. What makes wilful political change, such as a revolutionary restructuring of sovereign power, harder to conceive of is exactly the miraculous status of human actions. The results of actions are always totally unpredictable and it is therefore hard, if not impossible, to plan for the future. This is the reason why Arendt writes that it is a great mistake to believe that revolutions are made (Arendt, 1970, pp. 48): revolutions and change happen, but it is impossible to plan them because of the unpredictability of human actions. Furthermore, exactly because the ends of human actions are unpredictable, the means used to reach political ends are therefore of more importance than the goals themselves (Arendt, 1970, pp. 4). The prospect of political change is for Arendt something that is utterly impossible to plan and wilfully construct. However the potentiality of political change rests within human existence also in the most desperate situations as a permanent immanence and in that sense Arendt’s philosophy bears a kindle of hope within.




Agamben, G. (1998). Homo Sacer—Sovereign Power and Bare Life. Stanford: Stanford University Press. 

Agamben, G. (1999). Potentialities—Collected Essays in Philosophy. Stanford: Stanford University Press.

Agamben, G. (2000). Means without ends—Notes on Politics. Minneapolis, London: University of Minnesota Press.

Agamben, G. (2005). State of Exception. Chicago: The University of Chicago Press.

Arendt, H. (1970). On Violence. San Diego, New York and London: A Harvest Book, Harcourt Brace & Company.

Arendt, H. (1992). Eichmann in Jerusalem—a Report on the Banality of Evil. New York: Penguin Books.

Arendt, H. (1998). The Human Condition. Chicago and London: The University of Chicago Press.

Arendt, H. (2009). The Origins of Totalitarianism. Benediction Classics.

Arendt, H. and Jaspers, K. (1992). Correspondence; 1926-1969. New York, San Diego and London: Harcourt Brace Jovanovich.

Benhabib, S. (2004). The Rights of Others—Aliens, Residents, and Citizens. Cambridge: Cambridge University Press.

Benhabib, S. (2006). Another Cosmopolitanism. Edited by Robert Post. Oxford: Oxford University Press.

Benjamin, W. (1996). Critique of Violence, Selected Writings; Volume 1;1913-1926. London: The Belknap Press of Harvard University Press.

Birmingham, P. (2006). Hannah Arendt and Human Rights. Bloomington, Indianapolis: Indiana University Press.

Heidegger, M. (1962). Being and Time, trans. John Macquarrie & Edward Robinson, New York, Hagerstown, San Francisco, London: Harper & Row.

Szmagalska-Follis, K (2009). Are the  European Union’s New Boundaries like the Iron Curtain?: Borders and Freedom of Movement in Poland and Ukraine. In International Journal of Politics, Culture, and Society, Volume 22, No. 3, p. 385-400.   



[1] This view is held by Jürgen Habermas, Axel Honneth, Nancy Fraser, and Seyla Benhabib amongst others.

[2] This view is held by Judith Butler, Alain Badiou, and Giorgio Agamben amongst others.

[3] It ought to be mentioned here that it is not self-evident that the “attributes” Benhabib mentions are non-elective. Attributes such as religion (or sexuality or even sex) might by other scholars be understood as an “elective” attribute.

[4] The literature of the subject of the ”democratic illegitimacy” of EU is extensive and many different arguments for the problematic aspect of the democracy of EU have been put forward. The work of Daniele Archibugi is one insightful instance.

[8] The homo sacer project consists of two books as yet: Homo Sacer: Sovereign Power and Bare Life and State of Exception.

[9] “Therein consist the essence of State sovereignty, which must therefore be properly juridically defined not as the monopoly to sanction or to rule but as the monopoly to decide where the word “monopoly” is used in a general sense” (Agamben, Homo Sacer, 16—quote from Schmitt’s Politische Theology).

[10] Agamben discusses Benjamin’s ”Critique of Violence” extensively elsewhere: Agamben, State of Exception, 63 and Agamben, Homo Sacer, 63-67.

[11] Jaspers write to Arendt: “I still harbour a foolish yen for my idea: Israel does an exemplary job of historical investigation and documentation and then closes with this demand addressed to humanity, which is represented formally today by the UN: Here are the facts. It is a task for humanity, not for an individual nation state, to pass judgement in such a weighty case. We have the perpetrator of these crimes in our custody and place him at your disposal. What he did concerns all of you, not just us.” See Hannah Arendt and Karl Jaspers, Correspondence; 1926-1969 (New York, San Diego and London: Harcourt Brace Jovanovich, 1992), 419. ”Israel could easily have claimed territorial jurisdiction if she had only explained that ’territory,’ as the law understands it, is a political and legal concept, and not merely a geographical term. It relates not so much, and not primarily, to a piece of land as to the space between individuals in a group whose members are bound to, and at the same time separated and protected from, each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws. Such relationships become spatially manifest insofar as they themselves constitute the space wherein the different members of a group relate to and have intercourse with each other. No State of Israel would ever have come into being if the Jewish people had not created and maintained its own specific in-between space throughout the long centuries of dispersion, that is, prior to the seizure of its territory.” (Arendt, Eichmann, 262-263). In a letter to Arendt in December 1960 Jaspers argues against this view: “Israel didn’t even exist when the murders were committed. Israel is not the Jewish people. (…) The Jewish people are more than the state of Israel, not identical with it. If Israel were lost, the Jewish people would still not be lost. Israel does not have the right to speak for the Jewish people as a whole.” See Arendt and Jaspers, Correspondence, 410-411.