Hannah Arendt, responding to the problem of statelessness in works such as Origins of Totalitarianism and ‘We Refugees,’ articulates a defense of ‘the right to have rights’ in order to specify what any person on earth, regardless of their legal status as a national or resident or non-resident alien, can legitimately expect from the political community in which they reside. Responding to several of the questions integral to this special issue on ‘Legitimate Expectations,’ I return to her argument and its relevance for what might well be the greatest crisis facing liberal democracies today as they aim to be true to two major, conflicting, commitments: to open borders and societies, on the one hand, and to democratic procedures through majoritarian decision making on the other.
The crisis, of course, is the growing and seemingly unstoppable flow of migrants, often irregular migrants, and especially the increasing presence of persons displaced by the sectarian wars and political instability in the Middle East within the member states of the European Union. In this light, I ask that we reconsider observations Arendt adduces in the famous ninth chapter of Origins, entitled ‘The Decline of the Nation- State and the End of the Rights of Man.’ Here, Arendt argues that the history of defining, establishing, and protecting human rights was – from the very beginning – an exercise in the alignment of state power with emergent national identities. There was, she argues, always a pretense and sometimes a genuine intention on the part of liberal states to extend the provision of the rights declared to belong to ‘man and citizen’ to all people within the territorial sovereignty of those states, regardless of their nationality or lack thereof. However, as Arendt (1979/1951, p. 276) memorably puts it, once the horrors of the First World War had unleashed a wave of displaced persons across the landmass of devastated Europe: ‘The arrival of the stateless people brought an end to this illusion.’ Arendt shows, in other words, that the dream of universal human rights was exposed as a fantasy in the wake of the refugee crisis of the interwar period.
Here I will ask: what does the growing tide of displaced persons today suggest concerning the legitimate expectation that any person, irrespective of national origin and place of residence, may have of the state and/or of established international institutions with respect to hospitality and membership? The two legitimate expectations I shall name, for hospitality and for membership, are not novel or surprising in themselves. If an innovation is found here, it consists rather in two features that I argue, based on a new interpretation of Arendt, legitimate those expectations. First, both membership and hospitality expectations ought not to be based on either a nationality or humanity, but rather on political personhood as such. Second that political personhood differs from humanity as the normative underpinning of claims to hospitality and to membership in two key respects. First, it picks out something distinctive of human beings not as members of a natural kind (humankind or the human species), but as participants in collective practices of meaning-making action, even if such participation has been disrupted or abrogated by recent events. Second and most importantly, while the burden of negotiating legal personhood rests on grant of legitimation by an institutional actor (acting with the sanction of one or more states), the burden of negotiating political personhood begins with the seizure of legitimation by individual human beings who, whatever their legal status, demand access to what Arendt (1958, p. 199) dubs ‘the space of appearance’ and the non-institutional, though not fully informal, recognition of other political actors in that space.
It will be the burden of the argument that follows, especially the conclusion of Section 3 below, to articulate both the descriptive and the normative promise of this suggestion that the shift from legal personhood to political personhood tracks a concurrent shift from rights as something granted by a nationally-defined state (or its agent) to an essentially and universally inscribed human subject to recognition claims that are grounded always and only in the political negotiation between and among those who enter the public sphere. But before turning to the details, it should be clear that the shift from legal to political personhood and from the grant of legitimation based on a recognized right to the seizure of legitimation based on the recognition of one’s appearance in public does not, strictly speaking, seek to extend or renew human rights provisions. Rather, my proposed Arendtian response to the normative catastrophe made painfully clear by stateless persons who lack the ‘right to have rights’ is not a grant of right(s) at all, but rather to replace – wherever feasible – the nexus of rights, from conception to codification to implementation, with a dogged practice of political negotiation aimed at the elimination of boundaries not just between peoples but between persons. More prosaically, in order to achieve a more morally defensible outcome in response to the plight of the stateless in particular and the rightless in general we need a politics that attempts to solve the problem of uneven distribution of legitimacy through political negotiation in our contested public spaces and not juridical statutes and their adjudication in courts and international agreements.
Does this mean that, whereas Arendt settles the matter for a right to have rights, I say it is time to move beyond ‘rights talk’ altogether? This question is not easy to answer, but I would agree with Hamacher (2014, p. 187) that what is ‘beyond dispute’ is that for Arendt, the ‘right to have rights,’ the ‘one and only human right,’ cannot
be contained in any traditional legal catalog, since all these catalogues stem from conditions given by God or nature and not from legality, decision-dependency, and thus from the contingency of the law.
2 Nationality and humanity do not practically legitimate expectation for hospitality and membership
My central argument in this article will be that political personhood is a more promising normative basis for advancing the legitimacy of an expectation for hospitality and for membership than either humanity or nationality, the current platforms upon which what Benhabib (2004) has called ‘the rights of others’ are advanced. Before making the case for this claim in Section 3, I will establish here both that and how humanity and nationality are invoked at present, both normatively and practically, and why neither alone, nor both together, are adequate either to the task of establishing the legitimacy of these expectation or to the challenge of making that expectation enforceable. This entails, first, describing the shortcoming of extant approaches to invoking humanity and nationality in grounding charters and conventions concerning the rights of migrants and aliens (i.), then investigating the conditions of the possibility for overcoming these shortcomings (ii.).
2.1 Shortcomings of existing charters and conventions
As Price (2013, p. 451) notes, at least since the adoption of the UN Convention on the Rights of the Child of 1989 (if not already in earlier conventions on stateless persons dating to 1954 and 1961), signed by ‘every UN member nation – with the exception of the United States and Somalia,’ there has been ‘widespread agreement with its mandate that every child has a right to a nationality at birth.’ On the one hand, this convergence of opinion indicates that the international community, or at least extant international institutions, agree that one legitimate expectation any person, regardless of migration or resident status, territory of residence or of birth, can have of any state is to be and be considered to be possessed of a legal nationality. At the same time, as Price (2013, pp. 451–5) shows exhaustively and demonstrably, statelessness remains a pervasive problem. Just how much of a problem? That is to say, just how many stateless persons are there?
As Weissbrodt (2008, p. 79) noted nearly a decade ago: ‘Although no rigorous effort has been made to count the number of stateless persons worldwide, the United Nations High Commissioner for Refugees (UNHCR) estimates that there are several million stateless persons.’ I state this ‘highly outdated’ number and Weissbrodt’s presentation of it in part to emphasize that the ‘rigorous effort’ even to count stateless persons is a recent phenomenon, and to emphasize just how much the extent of statelessness has grown in the last decade. For, if you consult the report of the UNHCR today, you will find that while
UNHCR cannot provide definitive statistics on the number of stateless people around the world, but we estimate that the total was up to at least 10 million. That included 3.5 million in the 64 countries for which there were reliable statistics. 1
For context, it is also worth noting that the UNHCR reports that
the total number of displaced persons worldwide at the end of 2015 reached 65.3 million – or one out of every 113 people on Earth. The number represents a 5.8 million increase on the year before.
In other words, nearly one in 100 people worldwide have been displaced, and some 15-20 % of those are either legally or effectively stateless. 2
It is not enough to note this astounding number of stateless persons according to the recent estimate. We need also to note a few other points. First, that there is now an accurate count for 64 countries, whereas there were no such accurate records as recently as a decade ago. This shows that the increased attention that statelessness has received in the post-9/11 world has allowed us to understand more fully the problem that we face, even if nothing like a solution to the problem has been found. Second, that the count for just that third or so of the world for which we do have accurate statistics is now itself about equal to the rough estimate of the number of stateless persons a decade ago. This is a sure sign of just how much, and how rapidly, this problem is intensifying. Bearing both these facts in mind we can conclude that statelessness is not merely a pervasive phenomenon that affects well over one in 1000 people worldwide, but also that it is a problem that is getting exponentially worse and promises only to intensify under current conditions, where we find nearly one in 100 people worldwide are displaced, and the rate of increase in the number of displaced persons approaching a staggering 10 % per year. Given not only the intensification of conflicts in multiple regions but also the proliferation of failing states and conditions of imperfect or utterly lacking territorial sovereignty in especially the Middle East, we can only expect this problem of non-citizens in transit, often without recognized or recognizable state membership, to worsen.
If we are persuaded that statelessness is a real problem, in practice as well as in theory, the question then becomes: why is this is so? As both Price (2013) and Weissbrodt (2008) extensively document in reviewing the existing conventions and their applications, the problem partly arises because of the ineffectual nature of these conventions on Statelessness and the Rights of the Child themselves. And a major cause of this is the fact that the United States remains a non-signatory to these conventions. But more especially relevant here have been what Price (2013, p. 456) calls ‘widespread failures to register existing citizens, displacement due to civil conflict and migration, and discrimination against indigenous groups and others,’ which ‘have resulted in a substantial number of persons in the Americas who are effectively stateless.’ Even as states expressly acknowledge their responsibility for all human beings, regardless of their origins or migration status, to whom they are obliged to ensure their possession of nationality and thus their entry to the protections of citizens, many individuals and more individuals all the time remain stateless.
Not just the persistence of statelessness, but also the lingering inability to define precisely who is stateless in the relevant sense and thus deserving of the conferral of nationality when claiming to lack any, points to phenomenon analyzed by Brysk and Shafir (2004) and others as ‘the citizenship gap.’ This gap, by which the authors mean the misfit between the universalist norms of possessing human rights and the particularist facts of possessing membership in a nation-state is an increasingly prevalent problem under conditions of globalization and the global war on terror but the roots of this gap are much deeper. As Shafir (Brysk and Shafir 2004, pp. 12f.) notes, the histories of putatively universal human rights and legally constituted citizenship rights have, since the time of Hugo Grotius writing in the wake of wars between Holland and Spain and more explicitly since the French Revolution, been mutually implicated and yet in profound tension. Shafir (Brysk and Shafir 2004, p. 23) finds in Arendt’s Origins
the fundamental paradox of modern citizenship: since the sovereign nation-state was the primary enforced of the ‘inalienable’ and, therefore, universal human rights, individuals enjoyed rights not by virtue of their humanity but by virtue of their membership in … a particular, territorially based nation-state.
The concern is thus as clear as it is stark: if it is one’s membership in a nation that grants one ‘the right to have rights’ then for all persons whose national status is in question, or for whom diplomatic protection is not offered for either legal or practical reasons, then the whole regime of international rights conventions becomes a normative desideratum but not a legally binding fact. As Weissbrodt (2008, p. 2) states: ‘Despite the existence of an extensive framework of non-citizens’ rights, there remains a disjuncture between prescribed rights and the realities that non-citizens must face.’ For this reason we find ourselves again, today, face to face with the fundamental mismatch Arendt identified between citizenship based on nationality and rights based on humanity, which Butler (2007, p. 1) summarizes thus:
If the nation-state secures the rights of citizens, then surely it is a necessity; but if the nation-state relies on nationalism and invariably produces massive numbers of stateless people, it clearly needs to be opposed. If the nation-state is opposed, then what, if anything, serves as its alternative?
2.2 Overcoming the shortcomings in articulating the rights of migrants and aliens
We have seen that the existing rights regime and the international institutions that support and give it codified expression are insufficient to the task of ensuring actual legal protections to non-citizens. Weissbrodt (2008, p. 5), having conducted ‘a comprehensive review of the existing treaty and non-treaty principles related to the international human rights of non-citizens,’ concludes that, ‘in general, international human rights law requires the equal treatment of citizens and non-citizens,’ with the proviso that ‘there are instances where differences in treatment are justified,’ specifically for instance where non-citizens reside in a county that they have not ‘entered under proper procedures.’ Having shown that the existing conventions fail to meet the burden that international human rights law imposes on treaty signatories, I wish here, with the help of Weissbrodt (2008) and Gündoğdu (2015), to show why the existing conventions fail to meet this burden. Specifically, I shall argue that the continuing shortcomings of existing international human rights law with respect to non-citizens rests in a conflicting normative structure among the legal codes and between the codes and the principles of liberal equality to which they are meant to answer. The non-equality of citizens and non-citizens will come to be seen a problem that cannot be overcome without a solution to this normative maladaptation of means to ends.
Weissbrodt (2008, pp. 96–102) provides a clear presentation of the ways in which both the international conventions meant to address statelessness and the manner in which those conventions are applied yield practical shortcomings in either the capacity or the willingness of state actors to ameliorate the ‘obstacles, hardships, hurdles faced by stateless persons.’ As Price (2013) also discusses in detail with concrete examples from recent times, these failures often arise from displacement of large communities that remain small minorities within the states in which they find themselves after the redrawing of borders through the long and unfinished process of decolonization, and more recently from the cataclysmically violent ethnic and sectarian conflicts that have again proliferated in the wake of wars in north Africa, Iraq and Syria. Whatever exactly the historical context that gives rise to such ‘inner alien’ communities in the affected countries, Weissbrodt (2008, p. 98) concludes that as they are ‘perceived as foreigners in spite of supportive constitutional and legal provisions’ such groups
have been subjected to discrimination in the procurement of official citizenship documentation, and therefore have suffered exclusion, including denial of economic, social, and cultural rights and frequent forced displacements from their land.
How, then, are we to respond to these manifest shortcomings in the current approach, based as it is on the nation-state as the addressee from which persons can legitimately expect to receive hospitality and membership? Weissbrodt (2008, pp. 102f.) proposes three categories of remedies for statelessness: (a) pre-emptive remedies, which ‘stop statelessness before it develops,’ for instance by instituting jus soli statutes for children born in a country; (b) minimization remedies, which ‘lessen the difficulties associated with statelessness and serve to protect stateless persons from discrimination,’ for instance by providing treatment or services for non-citizens substantially the same as citizens; and (c) naturalizing remedies, which ‘focus on securing citizenship for persons already stateless,’ for instance by enacting laws to grant citizenship to an ethnic minority en masse. In providing illustrative examples of how each of these categories of remedy can be effective, Weissbrodt simultaneously points to their existing and prospective shortcomings, first because any measure that fits into one of these three categories takes the phenomenon of statelessness as it is and then reacts to it in one or another way. As Weissbrodt (2008, p. 103) notes, though, there is the greater concern that, ‘none of the UN treaties … obligate State parties to implement naturalizing remedies for statelessness.’ In quite literal fashion, the existing forms of remedy might be able to mitigate the extent and the effects of statelessness but they cannot address the phenomenon’s fundamental source, which is the identification of ‘the bearer of rights’ with ‘the born or naturalized citizen of a nation.’
Weissbrodt (2008, p. 107) is surely right to hold it a salient goal that ‘stateless persons realize their right to a nationality’ for as long as nationality holds the key to recognition. Yet, even if each instance of each category of remedy he describes has been and can be effective in certain contexts, it remains the case that even when taken together all such remedies have not yet held the key to true and lasting remedy, nor can be reasonably expected to in future. Why so? Why, some 70 years after it was first identified as perhaps the greatest gap in the conception and the practice of universal human rights, and decades after the implementation of three major international conventions meant to address this issue directly, does it remain impossible for state actors, the UNHCR, and other international interest groups mobilizing on behalf of the stateless and the displaced to provide an effective remedy? I believe it will prove impossible to adequately address the legitimate expectations of all persons for hospitality and for membership absent a reformulation of the normative basis of these expectations and the rights claims derived from them.
With Gündoğdu (2015, p. 19), I want to suggest that we use an Arendtian approach to the aporiai 3 of ‘international human rights law, especially those arising from its simultaneous affirmation of equal personhood and territorial sovereignty.’ These impasses, 4 Gündoğdu (2015, p. 19) shows, found concrete expression in the formulation of the right to seek asylum in Article 14 of the UN Universal Declaration of Human Rights (UDHR), which was vigorously debated and ultimately revised so as not to put undue ‘restrictions on sovereign power over immigration control.’ Whatever amelioration can be found using the means of redress named by Weissbrodt (2008), I hope to show, the aporia Arendt identified in statelessness is no mere ‘puzzle’ or ‘perplexity’ concerning the tension; it is a genuine impasse. The only way to get through it well is somehow or other to disentangle the basis of the legitimate expectation for recognition (the individual’s right) from the basis of providing such recognition (the nation-state). Absent such disentanglement, we will forever find ourselves insisting on persons presenting themselves for recognition as nationals, so that a given national state can recognize them; the contemporary history Arendt recounted and our own contemporary history prove that this is doomed to fail as there simply are persons who are not nationals, and we cannot make the legitimacy of their expectations for recognition dependent on their having status as nationals.
3 Nationality and humanity do not normatively legitimate expectation for hospitality and membership
If the burdens of my case have been met then Section 2 has shown, first (i.), that systematic shortcomings remain in the capacity of existing human rights instruments capacity to provide for the rights recognition of non-citizens, and second (ii.) that promising proposals to address these shortcomings, like those of Weissbrodt (2008) and Gündoğdu (2015), require not merely new practical instruments in order to meet the normative demands of rights claimants, but also a new normative framework to justify the legitimacy of the rights claims they make. In this section, I will first discuss how Arendt’s work approaches this issue and how and why her arguments have been called into question, before moving on to defend a new normative orientation, toward ‘political personhood’ rather than either humanity or citizenship, that draws on Arendt’s phenomenological analysis of the human condition and at the same time answers some of the concerns to which her account has been subjected.
Drawing on the Arendtian sources discussed in the introduction above, Gündoğdu (2015, p. 19) argues that addressing the aporiai of human rights as a concept and human right instruments as a legal and political practice requires ‘institutional guarantees to become relatively durable,’ for which ‘legal recognition of personhood is crucial because it allows one to appear in public without the pervasive fear of arbitrary violence and renders one’s rights claims audible and intelligible.’ Above, I called this political personhood so as to stress its character as an appearance in public that constitutes the political in Arendt’s sense, and to stress its salient differences from legal personhood. 5 In what remains, I shall show how this political personhood shifts the basis of the legitimate expectation for hospitality and membership away from a rights-based recognition as a national (or quasi- or temporary national) that is granted by a state-sanctioned actor – imagined as granting a ‘right to have rights’ to the rightless – toward the seizure of legitimation by an individual who appears to and within a political community, regardless of nationality. Before we can assess this differing orientation for the claim to legitimacy, let’s see how such political personhood differs from bearer of rights under the current international human rights regime.
Gündoğdu (2015, p. 19) points to the essential difference between legal and political personhood in claiming that ‘the plight of stateless persons cannot be understood in merely legal terms; their condition of rightlessness also denotes exclusion from a political community and expulsion from humanity.’ Stateless persons expose the precariousness of even the most basic articulations of human rights because in the challenges they face, up to the impossibility of a viable existence, we see concrete expression of the violent exclusions involved in basing the right to have rights on the grant of a territorially sovereign state to an individual on the basis of its recognition of either humanity or nationality in the putative subject before. It is just this precariousness that Gündoğdu (2015, p. 21) calls attention to when arguing that ‘one of the most fundamental forms of rightlessness manifests itself today in the speechlessness of migrants,’ a plight that ‘suggests that one’s speech is rendered meaningless or not taken into account’ whenever a sovereign state finds that doing otherwise might be contrary to interests and/or is not required by either its own laws or by the international agreements to which it is subject.
This abjection of individual human beings in the face of the state actor who effectively may alone grant human rights is behind Boehm’s (2015) striking formulation that ‘in order to address the refugee crisis not only would Germany have to change, but so would political philosophy itself.’ 6 The change that he and Gündoğdu, both following Arendt, envision here would not merely compel state actors such as the Federal Republic of Germany to recognize non-citizens in a radically different fashion than they do at present; it also demands of our normative discourse in law, in politics, and in morality, an acknowledgement of rights-bearing as a feature of persons who make claims on states and non-state actors as political persons, regardless of their possession of legal personality and specifically of a nationality inscribed in and by law. Bluntly, as Hamacher (2014, p. 178) puts it: ‘The “so-called human rights,” as Marx shows, secure the opposite of what they affirm to secure.’ This ‘permanent possibility’ of the violent exclusion of non-citizens from the status of those recognized by and before the law is especially troubling because of the specific history in which and through which citizens’ rights and their protections came to be inscribed within national laws and international agreements. Gündoğdu (2015, p. 44) provides an especially clear expression of Arendt’s main conclusion: as
the egalitarian dimensions of the nation-state were further undermined with the rise of imperialism and emergence of tribal or ethnic nationalisms, it became even more difficult to invoke the Rights of Man to claim equal rights for those who were not nationals.
Thus, both the formal structure of rights as something granted by the state and the specific history of those states becoming ever-more aligned with nations defined by narrow nationalisms of ethnicity or tribe point toward a fundamental challenge to the possibility of equal rights for all human beings on the basis of their shared humanity. Nor should we believe that merely by changing either the express content of existing rights instruments or the emphasis on state actors and the agreements that they reach among one another we can achieve the change that Arendt and those who follow her are calling for. On the contrary, as Gündoğdu (2015, p. 44) concludes:
Arendt’s critical inquiry suggests that, although some institutional structures are more promising in terms of offering effective guarantees for equal rights, no institutional form, including an international, postnational, or even cosmopolitan one, can be entirely free of these tensions
between the legitimacy on an individual’s expectation to equal protection of the law and the territorial sovereignty of a state or other institutional actor that claims responsibility for determining by its own grant who may or may not legitimately make a claim to that protection. What’s more, as Hamacher (2014, pp. 182f.) shows, in introducing a ‘saving clause’ (Art. 30) that prevents the Declaration from being used to deprive persons of their human rights (or attempts to), those who framed the UDHR were well aware of
the possibility that every single human right can be used to destroy human rights, and that preventing the double bind of human rights from becoming suicidal is only a matter of their interpretation and of their political and organizational application.
This Arendtian perspective on the limits of human rights as theorized and practiced from the eighteenth century up to and including the international human rights regime developed in the wake of the Second World War has long been at the center of discussions of human rights regimes and the difficulties. As such, it and Arendt herself have been subject to significant criticism that it would be well to discuss before concluding that some version of her orientation toward a reformulation of the normative and practical dimensions of human rights guarantees is in fact the most promising. Parekh (2013) provides a brief and clear overview of the critical literature on Arendt’s notion of the ‘right to have rights,’ focusing on two kinds of critique to which Arendt’s view has been subject. The first, articulated by Benhabib (2004) among others, asserts that while Arendt wants to advocate for a right to have rights, her focus on nations as those that carry and ordain rights leaves us without any normative foundation for such a right to have rights. The second, advanced by Rancière (2004), argues that Arendt’s ‘right to have rights’ is either a tautology (thus lacking significance) or simply void (thus lacking even signification). For, as Parekh (2013, p. 775) paraphrases his argument, if they ‘are the rights of citizens, then they are simply the rights of people who already have rights, and therefore a tautology,’ but ‘if they are the rights of the person who is ‘nothing but a human being,’ then they amount to nothing and are void.’ For Benhabib, and critics of the first kind, the main concern is that Arendt leaves us without a normative basis from which to articulate what makes it possible for people, citizens or not, to have legitimate expectations for rights recognition. For Rancière and critics of the second kind, an Arendtian approach is more fundamentally misguided as the concern is not to do with how to justify the legitimate expectation in question but how to understand the person who might have or act on such an expectation.
Let us note one further critique that has been levelled at her analysis in response to which it might be necessary to take a step beyond Arendt. As has attracted a good deal of notice lately, including in volumes edited by King and Stone (2007) and Benhabib (2010), even as she constantly stressed the unwarranted nature of the essentialist tradition in political philosophy, Arendt herself seems not to have recognized how essentially raced – that is, how white and how European – her vision of the polis as the space of appearance and who can fully appear there remains. 7 Bernasconi (2007, p. 56), to cite a compelling instance, argues that despite ‘Arendt’s acknowledgement that a “subterranean stream of Western history” has “usurped the dignity of our tradition,”’ she still (wrongly) ‘hopes that, by acknowledging the subterranean stream, she can restore something of the proper dignity of the tradition’; a hope that Bernasconi (2007, p. 64) finds ‘is pure ideology as Arendt herself understands the term.’ 8 King (2010) offers a more nuanced account of Arendt’s Eurocentrism and what it means for our assessment and possible use of her thinking. 9 King’s main conclusions, which are two, seem to me precisely the right lesson to take from a consideration of Arendt’s Eurocentrism. First, King (2010, p. 114) shows that we while must not attempt to ‘make excuses for Arendt’ as regards her views concerning the putative cultural inferiority of sub-Saharan Africans, we must also take note of how pervasive these views were in a ‘specific discourse about racial and cultural difference that was not only “German” but lasted well beyond WWII in the West generally.’ This means trying neither to forgive nor forget her lapses, but rather to see just how widespread those lapses were and are. Second, when we investigate the details of the broader discourse that King (2010, pp. 116–32) critically summarizes, we find that while Arendt successfully resists the reductionist and essentialist elements of the broad picture of European superiority, she remains committed to the notion of a European spirit that was announced by the uniquely Greek attachment to reason and to freedom that Arendt insists is meaningfully European and which does, for her, constitute some kind of cultural superiority. Whatever the merits of that claim (for instance, however historically true or false its notion of Greek uniqueness), therefore, Arendt’s Eurocentrism far from the race-based account of European superiority of many around her, and we ought to have a subtler understanding of Arendt’s views on the matter.
This issue with race, colonialism and Eurocentrism is a question for further discussion that we who are inspired by Arendt must address but which does not, in any case, undermine the fundamental perspicuity of her critique of the essentialism and universalism built in to extant human rights provisions and their normative justifications. This leaves the two more foundational critiques on this whole Arendtian project, to which we still must reply. Parekh (2013) points to the work of Barbour (2012), Heuer (2009), Krause (2008), and Oman (2010) as bringing forth an Arendtian reply. In response to the claim that the right to have rights has no normative foundation, she argues that the contingency and uncertainty of the right is a strength, rather than a weakness, and that a foundation, metaphysical or otherwise, is not needed for the theoretical articulation and practical assertion of the right. 10 To Rancière’s critique, Parekh (2013, p. 775) replies that Arendt’s view of the right is neither empty nor a tautological reference to the status quo because ‘stateless people retain the capacity to act because action requires nothing more than a space of appearance.’ The right to have rights is not granted by any authority, that is, but rather demanded in the very appearance of the rightless in the public that denies them rights. Ingram (2008) has shown how such an approach shifts the emphasis from the legitimacy of the action by a responsible authority to recognize – and in this way – grant a right to legal protection to the legitimacy of a claimant’s action to generate the right that she or he demands the legal authority recognizes. Specifically, Ingram aims to corroborate such defenses of Arendt’s advocacy of the right to have rights with reference to the theorization of action as integral to human life as the appearance in public she analyzes in detail in The Human Condition. He isolates three ways that one can try to articulate the basis of this right. On the first, it is simply the capacity or power (Macht) to enact or enforce rights; on the second it is a Kantian prerogative based on institutions and agreements. Ingram’s own view, the third possible approach, draws out of Arendt’s anti-instrumentalist focus on action an understanding as a right as something taken by those who make rights demands, not as something granted by a state or international body.
This sense of a right (if it really makes sense to use that language at all anymore, given the analysis of Hamacher (2014) as discussed above) as something that is taken, rather than something granted, is also stressed by Gündoğdu (2015, p. 101), who points to way in which Arendt’s ‘theatrical understanding of personhood as an artificial mask created by law’ is ‘very much in accord with her phenomenological approach to politics, which calls into question the metaphysical traditional that privileges “being” and is suspect of “appearances.”’ As she notes, and as emphasized in the introduction above, the project of shifting the normative place of emphasis away from the “metaphysical essence” of the person in whose humanity the legitimacy of the expectation for recognition and thus (for instance) for hospitality and membership resides is thus intimately connected with the project of shifting the practical place of emphasis away from the competence either of the claim maker to make their claim, or of any institutional actor to adequately respond to such a claim. For, as Gündoğdu (2015, p. 102) paraphrases Arendt’s ultimate conclusion in Chapter 9 of Origins: ‘If personhood is an artifact, and not an inherently given essence – if there is no intrinsic overlap between humanness and personhood – then it is quite possible that not every human being is automatically recognized as a person.’ For this reason, we surely cannot abide to continue with the status quo, where the subject to whom rights are granted and in whom equal personhood is recognized oscillates ambivalently between the essentialized human being and the historically determined national citizen, we also must resist the call to re-inscribe or re-describe human rights in a better and less exclusionary way.
Put more starkly still: the metaphysical conception of the essential human is intimately paired both formally and historically with the national state as the party competent to recognize the nationality and thus the humanity of the putative legal person who stands before the law. Thus, we must at the same time and by means of the same normative and practical reformulation of the Rights of Man remove the emphasis on the essence and on the national state, if we are to overcome the fundamental impasse at the heart of human rights (conceptually) and rights claims (practically). Here we see why, again following Gündoğdu (2015, p. 165) it is necessary to take our ‘starting point not from a foundation derived through justificatory procedures but instead from political practices of founding human rights.’ Responding to the foundationalist critique of thinkers like Benhabib (2004), Gündoğdu (2015, p. 166) here echoes Arendt’s response to Kant that, however important even inescapable institutions and legal orders are for the articulation and protection of equal civil and political rights, they will never be sufficient, and insisting that we take ‘Arendt’s call for a right to have rights’ as the means by which we attend ‘to the political and ethical dilemmas that pervade new beginnings.’
Politics, for Arendt and for the present analysis, is just the act of always beginning again from one’s phenomenologically determined moment within the shared world of human natality. Contrary to how her love for the classics and her embrace of the Greek understanding of politics are often understood, Arendt (2005, p. 95) is consistently clear that it is a false assumption that ‘there is something political in man that belongs to his essence’; indeed, she holds that ‘man is apolitical,’ while ‘politics arises between men and so quite outside of man.’ So far is Arendt from being an ‘Aristotelian essentialist’ 11 when it comes the human being as the zoon politikon, she rather claims that merely as a human being, as a singular entity, a human being is wholly apolitical. For Arendt (2005, p. 95), essentialism is one of the main reasons why philosophy has ‘never found a place where politics can take shape.’ The struggle to substantiate a political personhood that may replace the legal personhood based on essentialist and universalist philosophy requires us to found the space for politics that foundationalist philosophy has never found.
In this search – for what she calls the space of appearance – Arendt (1958, pp. 200, 206 and 35–38) turns to ‘power’ (Greek: dunamis), the traditionally subaltern term to ‘actuality’ (energeia [or entelecheia]), which she defines as ‘the potential space of appearance between acting and speaking men’ and which she claims ‘is what keeps the public realm … in existence.’ Power, and the space of appearance it opens, is the ungrounded ground of the humanity we share ‘as men, not Man.’ With all its contradictories and lacking universalist grounding, it is power and the space of appearance it makes possible that holds the best promise for overcoming the violent politics of exclusion. And power, which Arendt (1958, p. 200) argues, is ‘a power potential and not an unchangeable, measurable, and reliable entity like force of strength,’ cannot be codified or instrumentalized since it is ‘potentially there’ on all those occasions where ‘people gather together,’ but ‘only potentially, not necessarily and not forever.’ It is through such constellations of power, I argue, that we must address the normative failure of human rights provisions to provide for the legitimation of expectations held by stateless and other rightless persons for hospitality and membership.
To here, I believe it uncontroversial that my account follows Arendt’s critique of the universalism and the metaphysical legacy of the international human rights regime and would only wish to think current affairs and their moral valences through that critique. In conversation with Isaac’s attempt (2002, p. 507) to ‘use Arendt to develop a critique of Chomsky and to offer a qualified defense of the discourse of human rights and human rights interventionism,’ in the face of the humanitarian intervention in Kosovo and Chomsky’s (1999) withering – and overstated – critique thereof, I should like to conclude by suggesting that Arendt’s critique might not be radical enough. Specifically, I agree with Isaac (2002, p. 514) that Arendt noticed and was right to notice that ‘the rhetorical force of human rights serves some good purpose when it is linked to an anti-totalitarian policy being pursued by liberal democratic states.’ I maintain, however, that even if it is wrong to say that so-called humanitarian interventions are immoral and hypocritical – as Chomsky (1999) flatly did and was wrong to do, it remains the case that the metaphysical tradition and universalist tradition of human rights on which such interventions are based fails us as we attempt to devise practical mechanisms to overcome such violent exclusions. Worse yet, it actually perversely extends those exclusions on some occasions, even as it attempts to institutionalize their legal proscription. What, then, are such occasions? If we reflect on our current moment, I would say that rather than looking at aggressive actions that have been done or might be done for the sake of protecting in human rights – in Syria, for instance – we should look instead at the ways that codified legal forms, such as the first safe nation rule for asylum-seekers, perversely put people in danger, for instance in the flight practices and evasion tactics employed by irregular migrants crossing southeastern and central Europe in order to publically ‘appear’ for the first time in a more favorable first safe nation within the European Union. We might also examine the (rather shocking for North American sensibilities) harsh winter ‘illegal’ border crossings from the United States into Canada in light of ‘United States Executive Order 13,769.’
What these instances, and the more radical critique I offer in Arendt’s spirit but perhaps in deviance from her letter, is that legal personhood – however grounded in essential metaphysics and/or historically situated national and international (or cosmopolitan) legal instruments – must give way to political personhood as the normative and practical basis of the legitimate expectation for recognition. But what, concretely, does this mean? What concrete political action does this entail? Gündoğdu (2015, pp. 192f.) centrally stresses, among other instances, the political mobilization of the sans-papiers in France, who choose to occupy ‘public spaces that they are not entitled to inhabit’ so as to ‘contest the immobility and invisibility imposed by the lack of legal status,’ and thus by ‘“taking” public sites, they come out of the shadows and establish a state where they can appear to others as subjects entitled to equal rights.’ 12 For the millions of undocumented migrants in France and across the European Union, as well as for the millions of undocumented migrants in the United States, the current international human rights regime offer no substantial protections and so they remain in legal limbo and in perpetual precariousness.
The outright criminalization of such irregular migrants – a ‘total ban’ as now President Trump described it while campaigning – remains a tempting policy response for many in these nations, and the outcomes of recent elections and of others shortly to come, indicates that such a policy might be attempted on a massive scale. Barring such an outcome, however, it remains the case that lived reality stands in stark contrast with the legal prescriptions regarding national status and the equal rights of citizens and non-citizens within liberal democracies. Following Arendt, and in conversation with others at work in recent years in her wake, my contention here is that the most promising way to address this misfit between the legal fiction of equality and the lived reality of precariousness, is a redesign of both the normative basis and the practical mobilization of the legitimate expectation for hospitality and for membership, at least limited membership, for all persons living within democratic societies.
The sans-papiers and other marginalized persons might bring about the shift from the legal to the political determination of personhood. In this shift from the legal to the political, I believe, we see the most important and promising adaptation of both the normative underpinning of and the practical demand for the legitimate expectation for hospitality and for membership in particular and for recognition in general. We must cultivate a shift away from institutions and codes toward actors and their (inter)actions: with Hamacher (2014, pp. 197ff.), we must respond to the ‘structural depoliticization at a global scale’ not with new juridical devices and enforcement schemes at the national and international level, but rather with a new beginning that ‘can only arise out of the non-predicative language of a politically and juridically unqualified existence.’ This means, more concretely and as one instance among many, that in place of measures such as the ‘remedies for statelessness’ proposed by Weissbrodt (2008), discussed above, those who seek to ‘fill the gap’ in the distribution of legitimation to stateless and other rightless persons ought to focus on direct actions – such as theater and arts programs in refugee camps and temporary shelters for asylum seekers in Berlin, Vienna, or Belgrade; gatherings that join undocumented migrants when they are summoned to hearings with ICE administrators in the United States; or the spontaneous ‘self-deployment’ of veterans in defense of Native Americans protesting the use of treaty lands for a pipeline project.
These instances display the diversity of relation to ‘juridically qualified existence’ (one might rather say these instances ‘vary in their degree of legality or illegality’) that the kind of political negotiations I envision will inhabit; there are, obviously, no guarantees when it comes to such expressions or manifestations of power. In particular, there are no easy answers about how to address the possibly violent responses they might generate from state and non-state actors. Here I speak of ‘power’ and ‘violence’ as Arendt (1958, pp. 200–203) describes them, where power is this evanescent potency that is ‘to an astonishing degree independent of material factors,’ while violence effectively amounts to nothing more than the amassment of such material (guns, money, goods); in other words, what for Arendt is violence is precisely that which others would call power. Her idiosyncratic understanding of these terms and their real-life valences, discussed in greater length in Arendt (1990/1963, 1970), is highly contestable. But the contest about defining power in relation to and distinction from violence masks the deeper contest concerning the source of the gap in the ‘regime of rights’ and what its possible remedy.
In enacting a shift from states to individuals acting in concert in the space of appearance, we can imagine and implement practices that move both political discourse and the legal and political frameworks in which that discourse perpetuates itself and through which the ‘right to have rights’ will be finally adjudicated away from a reliance on metaphysical essence (‘all human beings’) and toward our appearance in public (‘those gathered here today’). In these concrete manifestations, if at all, will we see the power – in Arendt’s sense – of a shift away from a framework based on the granting of legitimation of human beings-as-nationals (i. e., those recognized as legal persons) through institutionally sanctioned rights-claims and toward a framework based on the seizure of legitimation of political persons by means of the power generated by their recognized appearance in public.
By way of conclusion, let me briefly note how the arguments adduced here to the effect that political personhood, rather than either humanity as a property belonging to persons by virtue of their naturalized membership in the human species or nationality as a property belonging to persons by virtue of their legally recognized citizenship, serves as the best basis for the legitimate expectation for hospitality and membership.
First, in response to the volume’s question: what is the connection between the justice of an expectation and its legitimacy; do criteria of justice determine which expectations are legitimate or do we use some other standard? I propose that my argument here indicates that, at least in this instance criteria of justice related to the lived experience of all persons in democratic societies is indeed relevant for the legitimacy of expectations. Specifically, if rights claims are made and/or interpreted in a legal vacuum devoid of attention to the concrete conditions through which personhood is practically determined, then the expectations upon which those claims are made and/or interpreted can well be void. The best way to address this violation of the legitimacy of expectations held by vulnerable persons (non-citizens and ‘less than fully recognized’ nationals of various kinds) is to pay attention to these justice criteria, which in turn requires attending to the political and not merely legal aspect of personhood.
Second, in response to the question: what does disagreement about (particular issues of) justice imply for the legitimacy of (particular) expectations? I suggest here, especially in the conclusion of Section 3, that it is indeed such disagreements concerning the legitimacy of expectations are relevant. At present, for instance, the ‘letter of the law’ would seem to imply that full equal rights must be granted to millions of persons who have found themselves forced to leave regions torn apart by violence; yet, democratic majorities within the nations where these non-citizens (are they refugees? asylum seekers? undocumented migrants? illegal aliens?) find themselves would not tolerate this. How is this aporia to be resolved? This pressing question, and others like, can only be resolved through democratic deliberation and the process of negotiation that it involves. There is no and there will be no legal solution to the problem of statelessness. Not at the national level and not through international agreements. Only political adjudication of these disagreements can bring about both legitimate expectations concerning hospitality and membership, and, crucially, their mutual recognition.
Finally, in response to the question: what is the normative relevance of harm caused by the frustration of (particular) legitimate expectations? I have here argued that it is impossible to plausibly maintain the legal fiction that all human beings are equal and thus have a legitimate expectation to equal treatment before the law absent attention to the numerous ways in which individuals such as irregular migrants, members of ethnic minorities, and the stateless generally suffer real, everyday harms when their legitimate expectations for hospitality and membership are frustrated. These include, as we have seen: forced migration, often by means of deportation, including by virtue of possibly illegitimate legal decisions; loss of land and other property; denial of linguistic and other cultural rights; and loss of liberty, including in the form of indefinite and thus illegitimate detention.
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The Greek term aporia, of such importance to Plato’s dialogues and to Aristotelian philosophy (see his Metaphysics, Book 3, 925a25 for the statement and then the remainder of the book, which is an extended discussion of the importance of aporiai for thought) is generally translated ‘perplexity’ or sometimes ‘paradox’ but it is more literally, and I would say more appropriately, translated ‘impasse.’ I will use that translation here.
The locus classicus for Arendt’s account of action as ‘the appearance in public’ and this sort of vita activa as politics is The Human Condition, especially Chapter 5. See Benhabib (2004), Menke (2007), and Waldron (2000), among others, for more on this with reference to Arendt’s treatment of statelessness and the right to have rights. I have stressed the fragile, conventional, and site-specific nature of this appearance of political persons – in contrast to the essentialist and universalist appearance of ‘man’ in the classical human rights formulations – near the end of the introduction above.
This itself seems an echo of Hamacher’s claim (2014, p. 177): ‘Social institutions – above all, human and citizen rights – are stabilizers of this difference [individuals enjoy from society. They are thus, in a highly paradoxical manner, stabilizers of a progressive dissociation.’ Nothing less than this fundamental resistance to non-hierarchical relations is what needs to be overcome in order to address the problem of ‘rightlessness.’
Gines (2007, p. 49) expresses this important critique quite directly: ‘As critical of racism as Arendt is throughout Origins, she seems nonetheless convinced that racism is a fathomable response by Europeans toward Africans who (in her estimation) lacked civilization, reason, culture, history, and political institutions.’
In so arguing, Bernasconi (2007, p. 55) draws powerfully on the link Du Bois (1947, p. 23) first drew between the outraged response to the Nazi regime in contrast to the tolerance with which the tools the Nazis used – such ‘concentration camps, wholesale maiming and murder, defilement of women or ghastly blasphemy of childhood’ – had been used ‘against colored folk in all parts of the world in the name of and for the defense of’ the very tradition the dignity of which Arendt is trying to restore in Origins.
King (2010, p. 113) also offers a discussion of the central views that have been expressed on the issue, and a bibliography of works that have expressed these views.
Bernstein (2005, p. 52–3) also offers a clear and compelling version of this argument.