Hamacher. on the Right to Have Rights. Human Rights, Marx and Arendt

On the Right to Have Rights: Human Rights; Marx and Arendt Author(s): Werner Hamacher, Ronald Mendoza-de Jesús Source: CR: The New Centennial Review, Vol. 14, No. 2, Law and Violence (Fall 2014), pp. 169214 Published by: Michigan State University Press Stable URL: http://www.jstor.org/stable/10.14321/crnewcentrevi.14.2.0169 . Accessed: 23/10/2014 19:47 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

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On the Right to Have Rights Human Rights; Marx and Arendt

W e r n e r H a m a c h e r Professor Emeritus, Goethe-Universität, Frankfurt am Main, Germany

T r a n s l a t e d b y R o n a l d M e n d o z a - d e J e s ú s

I. For classic political theorists, it was unimaginable that someone outside the polis could could be a human. Everybody was a human only by virtue of a society; societ y; and a societ societyy could only be that which secures its coheren coherence, ce, its duration, and its independence from other societies of similar or different types through laws and rights, forming a political community as a constituted society. From this follows Aristotle’s de�nition of the human as an essentially political animal—a zo on politikon. politikon. This de�nition would be   come problematic for the �rst time t ime in history only with the expansion of a religion that did not understand itself as a political theocracy or as a religion of political virtues and observations but rather declared its constitutive indifference and its structural neutrality over and against political matters. “ Nob “ Nobis is . . . . nec . nec ulla magis res aliena quam publica. Unam omnium rem publicam agnoscimus, mundum” mundum ” (No thing is more foreign to us CR: The New Centennial Review , Vol. 14, No. 2, 2014,

pp. 169–214. ISSN 1532-687X. © 2014 Michigan State University. All rights reserved. 


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On the Right to Have Rights Human Rights; Marx and Arendt

W e r n e r H a m a c h e r Professor Emeritus, Goethe-Universität, Frankfurt am Main, Germany

T r a n s l a t e d b y R o n a l d M e n d o z a - d e J e s ú s

I. For classic political theorists, it was unimaginable that someone outside the polis could could be a human. Everybody was a human only by virtue of a society; societ y; and a societ societyy could only be that which secures its coheren coherence, ce, its duration, and its independence from other societies of similar or different types through laws and rights, forming a political community as a constituted society. From this follows Aristotle’s de�nition of the human as an essentially political animal—a zo on politikon. politikon. This de�nition would be   come problematic for the �rst time t ime in history only with the expansion of a religion that did not understand itself as a political theocracy or as a religion of political virtues and observations but rather declared its constitutive indifference and its structural neutrality over and against political matters. “ Nob “ Nobis is . . . . nec . nec ulla magis res aliena quam publica. Unam omnium rem publicam agnoscimus, mundum” mundum ” (No thing is more foreign to us CR: The New Centennial Review , Vol. 14, No. 2, 2014,

pp. 169–214. ISSN 1532-687X. © 2014 Michigan State University. All rights reserved. 


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On the Right to Have Rights

than public matters. We acknowledge one public th ing, the world).� These two sentences from Tertullian’s Apology Tertullian’s Apology (�� (�� AD)—that Christians could not be more foreign to the public matters of the Roman Empire; and that, moreover ov er,, the theyy co coul uld d re reco cogn gniz izee ex excl clus usiv ivel elyy on onee pub publi licc thi thing ng:: the wo worl rld d as a wh whol ole— e— were just a reaf�rmation of the harmlessness of a regional sect that was uninterested in imperial politics. And yet, at the same time, these two sentences contained a declaration of independence over and against the prerogativ at ives es of the po poli liti tica call an and d in intro trodu duced ced a di dist stin incti ction on in th thee es esse sent ntia iall de deter termi mina na-tion of the human that, to this day, has not ceased to agitate the political and theological destinies of European as well as any other cultures. The res The res publica,, an blica and d he henc ncee th thee po poli liti tics cs of th thee ci city ty an and d of th thee wo worl rldl dlyy st stat ate, e, we were re fo fore reig ign n to Christians;incontrast,thesolethingthatmatteredtothemwasthethingthat is common to all: the world. This meant nothing less than that, from this moment onward, the human was not only a political being but additionally, and, an d, ab abov ovee al all, l, a wo worl rldd-so soci cial al be bein ing. g. It co could uld re remai main n ne neutr utral al co conc ncer erni ning ng st stat ateesoci so ciet etyy be beca caus usee it fe felt lt it itse self lf to be de de�n �ned ed th thro roug ugh h it itss pa part rtic icip ipat atio ion n in a so soci ciet ety y that was other than that which was constituted by the state. Society thus became the only sphere that could grant the possibility of indifference indiffe rence vis-a v is-a`-vis `-vis politica p oliticall society. society . That the th e community commu nity of the faithfu f aithfull organized itself in the eccle the eccle sia (assembly) as a civitas a civitas (citizenship), (citizenship), follow  sia (assembly) ing the model of imperium (empire) was secondary to the distinction between a political and a faith community, between res publica and res intima,, between state constitution and psychic participation. The split intima between publicity and interiority grew deeper as the Christian apostles and catechists proclaimed their gospel to be a “catholic,” and, hence, a universal gospel, which ought to be valid in the whole world—“ world—“holo holo  to  kosmo ” —regardless of political, ethnic, or legal-ritual particularities. �  ”—regardless Their religion was not the civic religion of the citizen of a city-state, a nationstate, or a transnational empire; on the contrary, their religion emerged with the claim ( Anspruch Anspruch)) to be a religion of universal human beings and of the divinity of this universal humanity. � The Christian religion presented itself as the all-encompassing anthropotheological corporation, which could remain irrelevant to individual political forms so long as they did not threaten its internal universality.


W e r n e r H a m a c h e r

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However, in the heretic and Reformation movements of Christendom, no less than in its dogmatic and orthodox tendencies, the claims to the universality of faith—and indeed of a faith that insisted in the primacy of the inner sociality sociality of the faithf faithful—led ul—led to its own type of society that was politic poli tically ally det determ ermined ined in a tho thorou rough gh man manner ner.. Amo Among ng the Ref Reform ormati ation on movements, Protestantism clari�es the utmost consequences of this process. By way of its paradoxical conformism, the Protestant Reformation contributed to the democratic revolutions from the sixteenth to the eighteenth century, and to their principle of universal equality—that is, the princi pri nciple ple of the imm immedi ediacy acy of the soci social— al—the the only pri princi nciple ple tha thatt is tho thorroughly enforced in the forms of modern democracy that still dominate today. The great political theories of modernity are political theologies of a democratism of protestant provenance. � This is clear from Hobbes’s construction of a “Christian commonwealth” and even clearer from the consti con stituti tutiona onal-t l-theo heoret retica icall pro projec jects ts of Rou Rousse sseau au and Kan Kant. t. Hege Hegell sys systema tematiz tizes es the all allian iance ce betw between een pro protest testant ant Chri Christen stendom dom and pos postrev trevolu olutio tionar naryy pol politi itical cal structures as historico-theological and legal-logical, and Tocqueville descri sc ribe bess it in his ac acco coun untt of No Nort rth h Ame Ameri rica can n af affa fair irs. s. Thi Thiss al alli lian ance ce is th thee ba basi siss fo forr Marx Ma rx’s ’s po pole lemi micc di dire recte cted d at th thee st stat atee-the theol olog ogyy of th thee po poli liti tica call em eman anci cipa pati tion on of the bourgeoisie in his still scandalizing short essay from ��, “On the Jewish Question” (��).

II. Marx’s starting starting poin pointt is that the fundamental “postulate “postulate of Christe Christendom” ndom” is the “sovereignty of the human.” He follows extensively the argumentative schema of Feuerbach when he takes the human—postulated as sovereign in the contemporary political order—as a mere “phantasy image” and as a “dream” whose realization could only be �rst brought about by social transformations: “Political democracy is Christian,” writes Marx in “On the Jewish Ques Qu esti tion on,” ,” “i “ins nsof ofar ar as as,, in de demo mocr crac acy, y, the hu human man,, no nott on only ly a hum human an bu butt ra rathe therr every human, is taken as sovereign as sovereign,, as the highest being; but the human in its uncult unc ultiva ivated, ted, uns unsoci ocial al app appear earanc ance, e, the huma human n in its acci acciden dental tal exi existe stence nce,, as it goes go es an and d st stan ands ds,, th thee hum human an as it . . . is gi given venun unde derr the thedo domi mina nati tion onof of in inhum human an


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relations and elements, in one word, the human that is not yet an actual species-being” (��, ��). Marx takes as established that Christendom had elevated each human being—each individual insofar as it is a mere human— to the “highest being,” even if historical Christendom not merely restricted this elevation through the advancement of “inhuman relations,” but even sunk this elevated human below its own level. Political democracy is structurally Christian and the sovereignty, which ought to be called the “divinity” of human beings “is, in democracy, . . . a worldly maxim.” This means that, for Marx, Christendom is not a religion among multiple historical or potential religions, instead, it is of “universal-religious signi�cance”; it is the religion of all religions, the religion of religiosity in general and thus the only form of relationality in which humans, each single human “in its accidental existence,” can be realized as a social- and species-being. Christendom proves itself to be the form of universal relationality, insofar as it produces democracy as its political correlate, and democracy attests to its Christianity, “insofar as it groups next to each other the most diverse kinds of world-views in the form of Christendom, and even more so because it never places upon others the demands of Christendom, but only those of religion in general, of any religion” (��).� Since democracy is the political form of Christianity, it can refrain from claiming the Christian religion as the state religion and must even drive forth the structural deprivileging of Christendom to a mere confession among other equally valid confessions. Within democracy as the politicized universal religion, each singular religion can only be a private thing; the state, however, is theobject, medium, and form of theonly remaining religious cult: the democratic one. The “consummated Christian state,” as Marx em phasizes, is the “atheistic” state, the “democratic” state (��). The secularization of Christendom will not be accomplished through the statization of the church’s property, but instead through the statization of the sovereignty of the human and the transference of its prerogatives (Vorrechte) to the basic rights, which the state warrants.� Secularization is the rigorous politicization and juridi�cation of the “highest being,” which is the human for the human. “The consummation of the Christian state is the state that professes itself as state and abstracts itself from the religion of its members” (��–��). According to Marx’s argument, since the state disregards the religion of individuals and

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must sustain its perpetual need for religion, the emancipation of religion that is accomplished with the declaration of human and state rights is merely a formal, organization-technical, and juridical emancipation to thestate.Inthis sense, it is a merely political —and indeed state-political—but not yet a social emancipation. Once religion has emancipated itself to the democratic state, and thereby has become a mere formality in every respect, religion must press for its emancipation from the state, from political democracy, and from religion itself to overcome the barrier that it built against its own sociality. For Marx, the Christian distinction that Tertullian declared in his Apology still dominates even where the res publica is no more a res aliena but instead has become the res publica christiana that, in the form of political democracy, has become the universal trend. This distinction and, as Marx writes more concisely, the “diremption” between a political and a thoroughly social society, are the means by which the religion “democracy” will be transformed into an institution for the disruption of each and every one of the relations that constitute the humanity of the human. Democracy—which is structurally Christian—only knows the human alienated from the human, the human as social-being separated from itself and for whom each other human is an opposed human. Even in its universality, democracyknows only thehuman as a human-against-human. Marx supplies the proof for this diagnosis in his analyses of the French Déclaration des droits de l’homme et du citoyen ( Declaration of the Rights of Man and of the Citizen), from �� and ��, and of the Constitutions of Pennsylvania and New Hampshire, from �� and ��. In all of them, the privilege of faith, the free exercise of religious cult, and the freedom of conscience and opinion will be recognized explicitly as human rights or as the consequence of a human right: freedom. But this human right is nothing other than a statecitizen right; it is the right of the member of a political society that handles all the rights that it secures as property rights, either explicitly or in a hardly concealed manner. The double title, droits de l’homme et du citoyen ( Rights of Man and of the Citizen), is pleonastic; its self-declared double ascription, circular: it de�nes thehuman through the state-citizenand thus determines it not as societal but rather as political, not as social- but rather as a state-being; moreover, it determines the determinacy ( Bestimmtheit ) ofthehumantobea


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human as a constitutional-legal positing of a state that ascribes itself at once the right to a constitution and to self-de�nition, and it is out of this act of an originary self-appropriation through the founding of all rights that the fundamental right to property of the state’s members must also be derived. Given that the state calls for the structure of a self-constituting ego, and since this self-constitution of the ego has the form of the positing of the fundamental rights, no right—insofar as it is a right—can have any other structure than that of an egological proper right ( Eigen-Rechtes ) and of an egoistic right to property. Marx does not go into the fundamental structure of the state’s self-constitution in the right to property, but all of his analyses presuppose its paradoxes. The state de�nes itself through law; since it de�nes itself through law, it must be �rst of all a property-state, and its citizens must be determined through property and possession: they must be determined through the privilege of economy and through economic privileges. The aforementioned ex planations of Marx clarify not only the “so-called human rights” declared by the North American and French constitutions but also what they de�ned as state-citizenship: “that, hence, the citizen is declared to be the servant of the egotistic human, the sphere in which the human relates to itself as a community is degraded to the sphere in which it relates to itself as a partial being, �nally, not the human as a citizen, but instead the bourgeois is taken as the proper and true human” (��). The presumptive humanism of modern democratic politics is de facto a structural antihumanism and, essentially, a disguised particularism. Marx cites the second article from the Déclaration des droits de l’homme et du citoyen from ��—the most radical, as Marx himself calls it. “Ces droits etc. (les droits naturels et impréscriptibles) sont l’égalité, la liberté, la sûreté, la proprieté ” (These rights etc. [natural and imprescriptible rights] are: freedom, liberty, security, property) (��).� He continues the citation with the de�nition of freedom from article �: “ La liberté est le pouvoir qui appartient a` l’homme de faire tout ce qui ne nuit pas aux droit d’autrui” (Freedom is the power that belongs to man of doing everything that does not harm the rights of another ) (��).� Marx comments: “Freedom as a human right is not based on the bond of thehumanwiththehuman;instead,itismuchmorebasedonthedissociation of the human from the human. It is the right to this dissociation, the right of a



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limited individual that is con�ned to itself” (��). � The diagnosis that Marx links to this commentary on the civic de�nition of the right to freedom is as sober as it is compelling: civic society “lets each human �nd in other humans not the realization but more so the barrier to their freedom” (��). The word “freedom,” as it is de�ned in the context of the American and French human rights declarations, can only be understood as an antonym, as a counterconcept, but, above all, as a facade-concept to what is commonly named by the concept “freedom.” These declarations speak of freedom, but what is meant and warranted in them is not freedom’s actuality but instead its limitation. The unhindered realization of sociality as constitutive of the human is declared to be a valid right without limits; but of this right, what is meant and warranted is only its circumscription, its delimitation to the right of property, the preemption of this delimitation to right, and thus the perpetuation of the frustration of a sociality that is declared to be integral. The “other human”— “l’autrui” (the other)—whose freedom this delimitation to right is supposed to protect, is the “other” only as the dissociated human who comes into consideration juristically only as a bearer of property interests but not as a bearer of the claims of the community. The barrier that Marx recognizes in the clause “tout ce qui ne nuit pas aux droit d’autrui” (everything that does not harm the rights of the other) is not erected upon natural properties but upon the arti�cial right that enables everyone to have free rein over their property arbitrarily and at discretion (“a` son gré ”)—as a consequence of this, human rights are private goods and freedoms disposed by a competitor who is, in principle, a legitimate enemy of every other human, an enemy of the human as a social-being, and thus an enemy of itself. In the declarations of the rights of the human and of the citizen, the relation to the “other human” is determined only negatively as an exclusion of harm but neverpositively as a reciprocal advancement in the enjoyment ofthe common. Because of this, in these declarations the blockade and the withdrawal of relation will be elevated to the criterion for the de�nition of sociality andhenceofthehumanityofthehuman.Civilsociety,asitdeterminesitselfin these declarations, is a society out of the negation of society. Civil society declares normatively that it is structured as a society against society, that it is an association of dissociated and continuously dissociating egoisms, and that


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it is thus a paradoxical union of desocialization that is only held together through competing property and pro�t interests. Consequently, in its selfdeclaration, this paradoxical society commits itself to serve only as the means for the conservation of egoisms that are supposedly given in nature. Marx understands in this way article � of the Déclaration des droits de l’homme et du citoyen of ��, which declares that “ Le but de toute association politique est la conservation des droits naturels et impréscriptibles de l’homme” (The goal of all political organizations is the preservation of the natural and imprescriptible rights of man) (��). Democratic society de�nes itself in this sentence as the continuation of nature with political means, as the maintenance of the Hobbesian concept of nature and its bellum omnium contra omnes (war of all against all), and thus as the maintenance of not only a presocial but also a countersocial condition (��). The democratic natural religion, whose rites are codi�ed in human rights and in the rights of the citizen, does not realize “the essence of community, but rather the essence of separation. It has become an expression of the separation of the human from their community, from themselves and from other humans” (��). At the center of the politics of “separation” (Unterschieds ) , of limits, and of difference that property posits, in the middle of this politics of dissociation, must stand the police as guardians of the constitution, guardians of “nature,” and of theseparation of society from society. �� Thepolicehavethedoubletask of assorting all the elements of society with all the means of the legal state, while, at the same time holding them together with the same means by offering security—“la sûreté”—tothese elements so they can form a society by virtue of their distance from society. “Security is the highest social concept of civil society, the concept of the police” (��). In the police, as the highest social institution of civil- and human-rights society, the three functions of the state—the legislative, the juridical, and the executive—coalesce, de�ning the political as a thoroughly policed society.�� The police secure “that the whole of society is only there to guarantee to each of its members the maintenance of their person, their rights, and their property” (��). �� This sentence describes the transformation of society from being the only ground and goal of the state to being its mere instrument. If society “is only there in order” to secure the maintenance of the property and the autonomy of its members, then it has



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been reduced to a function of the state and its legal means; society is no more the ground of rights that render possible and foster the sociality of society, instead, it is a means for the rights that undercut this sociality. Society has become a function of the state to such an extent that it can only be a society against itself, a society that hinders society and a bond ( Verband ) for the enforcement of a generalized associality. That society is thoroughly statized, juridi�ed, and policed implies that, in society, “the essence of separation” (Wesen des Unterschieds ) of each human from each other and from itself is elevated to a political maxim, and that society exhausts itself in driving forth the essentialization of difference from society. Social institutions—above all, human and citizen rights—are stabilizersof this difference. They are thus, in a highly paradoxical manner, stabilizers of a progressive dissociation. If society—the source of every legitimation—has become itself in need of legitimation, and if the only instance of legitimation that can take responsibility for the existence of society is situated in the sole purpose for which society “is there,” namely, in the protection of each individual and its particular interests—“its” person, “its” rights, “its” property—then this society can only be a self-protection agency, and each individual stands obliged to sup port the universal civil service to its own (am Seinen). But then each individual must also have the right to carry out this service to the fundamental right to the proper (das Seine) and to its separation from every other individual; therefore, an individual must have the right to the security of its rights and, hence, it must have the right to rights in general and it must de�ne itself through this right. Marx does not make useof the “right to rights”formula, but his critique of the autoteleological structure of rights in the property and self-protection state, and in everysociety that has become a function of such a state, implies such a circular formula. The formula “right to rights” characterizes the human at the same time as a function of self-protection—which the human accomplishes with the help of human rights—and as a function of the state-guaranteed and police-enforced legality ( Rechtmäßigkeit ) of its existence. “Human rights” means the right to existence ( Existenzrechte) of legal subjects ( Rechtssubjekte) if and only if they are bearers of those functions that are attached to the attributes of freedom, equality, security, and, �rst of all, property. The right to these rights is only granted to them with these rights


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themselves; this right de�nes the legal subject as a function-subject and the human as the functionary of its rights. Indeed, such right guarantees rights, but it guarantees no other rights than the state-civil rights—and thus it guarantees no society. On Marx’s reading, the universal human rights—equality, freedom, security, property—are the rights of a generalized policeman, which each individual must apply to itself and to all the others in order to be capable of being the human of a society that is paradoxically democratic-Christian and antisocietal-atheistic. On the basis of these human rights, politics can only be a national and international police-politics that splits society into the economically privileged and the underprivileged and intensi�es their asymmetries, and that must stabilize, at the same time, the growing social disintegration. But, as the Marxist prognosis would have it, this police-politics can only stabilize the disintegration until even the stabilizing institutions themselves—the legal system and the privilege of property that is posited with it, the police that are generalized into the state-society [itself]—fall into ruin in the course of their self-promoted disintegration. The prognosis of this ruin and of the concomitant transformation of the merely political society into a social society follows a logic that Marx held as scienti�c, in the most emphatic sense of the term. It is hard to reconcile scienti�c prognoses with the absence of their ful�llment. But unful�lled prognoses authorize no conclusion on the lack of cogency of the analyses that underlie them.

III. The “so-called human rights,” as Marx shows, secure the opposite of what they af�rm to secure (��). They do not secure equality but only juristic equivalence, and under premises that surrender this equivalence to contingent factors; they secure the property of all formally, but they do it so that the property of a few is privileged and is maximized in a measure that necessarily damages the fundamental principle of equality; they do not secure freedom, but instead they secure the freedom of a property, which limits both the freedom of the owner as well as the freedom of everybody else, and which tends to destroy



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freedom; they do not secure society’s sociality, but instead its segregation and dissociation; they do not secure security, but instead merely its appearance, and, above all, [they] secure its—at times accelerated, at times halted—collapse. Human rights are paradoxical �gures, even if they suggest internal consistency: they are rights-against-rights, social institutions against social integration. Nonetheless, their declaration and implementation marked in Marx’s view a new “level of development of the human spirit” (��) and, in fact, not in spite of but precisely because they dispose of the law (das Recht ) as an institution that is relatively autonomous from society and, in so doing, they open the possibility of introducing another use of the law than its ruinous use, which is limited to the mere right to property. The agent of this dissolution of law and politics from society, the dissolution of the juridico-political human from the social human, is “the postulate of Christendom, the sovereignty of the human,” through which the human begins to raise itself above all the traditional determinations of its humanity (��). The Christian maxim of the independence of humans from normative precepts (Vorgaben), which became the political maxim of democracy, “externalizes [äußerlich macht ] all national, natural, moral, and theoretical human relations,” (��) and removes all historically variable elements from the human’s political self-de�nition to such an extent that it enables the human for the �rst time to determine itself as a political being absolutely without any limitations. This process could be characterized, borrowing from Husserl’s concept of phenomenologicalreduction, as a juridico-political reduction, as the reduction of the human to its function within a state-constituted community (Gemeinwesens ) ,asthereduction to an autopolitical essence (auto-politisches Wesen). In civil society, this process enters into a phase in which the political world separates itself from the norms of its prehistory and in which “the human world” dissolves “[into] a world of atomistic, inimical, opposing individuals” (��). With this, argues Marx, the political potential of the Christian maxim of the sovereignty of the human reached its limit. Because this sovereignty is that of the isolated, not of the social human, the political reduction, guided by the Christian maxim, can only be an egological reduction; it can only be the reduction to the egoistic human of property rights, and thus only the reduction to the split human who


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is split from its own sociality; it is only the reduction to the ego-political and therefore asocial human: “The splitting of the human into a public and a private human . . . is the consummation of political emancipation, which does not abolish, and does not even strive to abolish actual human religiosity” (��). However, since the sovereignty maxim of Christendom was not only consummated (vollendet ) in the establishment of the individual’s right to freedom in democratic nation-states but rather attained its end (an ihr Ende gelang ist ), this maxim does not suf�ce to redirect “emancipation” away from “political” toward “social emancipation.” This maxim and the rights associated with it become fetters for each step that could lead toward the socialization and the humanization of the human. The world that is produced through these rights is no communal world; it is instead a mere aggregate of “atomistic” individuals who are not held together through a prestabilized harmony but who are instead driven apart from each other through enmity; each individual ( Einzelne) is not an individuum ( Individuum) but rather is split “into a public and a private human”; the human world is a chaos of competing property interests, not a social cosmos. For the bourgeoisie, the secularization of Christendom into the democratic state was accomplished in the course of the French Revolution; for the due secularization of this secularization, which could be attained only with the socialization of politics, there is no support within this thoroughly politicized and juridi�ed society. Indeed, universalistic principles underlie the freedom rights of democracies, but these principles are those of the universally egoistic human who is cut off from its own universality, which is de�ned, in keeping with the Christian model, as a human-against -human and not as a universally social human, not as a human- for -human. Only the split (Spaltung ) of universals is universal; it is the principle of politics and of human rights, because it is the principle of their empirical-transcendental divinity: money. Marx, who calls this principle “the essence of separation” (Wesen des Unterschieds ) (��), grasped that capital would cease to be the medium and the agent of the asymmetrical social differentiation that makes society into an exclusively political society and political society into an asocial society. For that reason, he advocated that the “essence of separation” had to be made usable for the “essence of community” (Wesen der Gemeinschaft ).Butitisstillundetermined



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what will become of this essence itself—of both separation and of community— and of its unessence (Unwesen). This indeterminacy still belongs to the situation of societies a century and a half after the Marxian analyses. However, to this situation also belong the experiences with human rights that have been instituted one and a half centuries after their �rst declaration. That human rights were conceived at the same time as human rights and as citizen rights was grounded in the circumstance that human rights could only be declared and guaranteed through the citizen rights that were admitted by national states in their constitutions. A little more than a century after Marx’s polemic in “OntheJewish Question,” HannahArendtdescribestheconsequences of this legal-logical alliance in her �� book, The Origins of Totalitarianism. According to her �ndings, whoever is stateless is also rightless. Human rights— even those formulated by the United Nations in ��—are determined as inalienable in order to uphold their validity independent from historicoempirical instances and their opportunistic principles of activity, and to entrust them with the constancy of the human essence, whether given by God or nature. On the other hand, human rights will be placed exclusively under the sovereignty of historical nation-states, which lay the claim to being able to de�ne within their borders the standard of what counts as a human, insofar as they present themselves as particular representatives of humanity as a whole. Human rights, inalienable and independent de jure,are de facto dependent on external (äußerlichen), contingent guarantor powers and are exposed to their arbitrariness: an arbitrariness that in principle can work toward suspending (außerKraftzusetzen) any ofthese rights.Here lies theunsurpassable paradox of human rights, which Arendt expresses when she speaks of the “perplexities oftherightsofman,”ofthe“aporias”andofthe“endofhumanrights”( Arendt ��, ��–��).�� Thelossofhumanrights,whichwasprogrammedfromtheverybeginning through their structural fusion with the citizen rights of nation-states, became a political mass phenomenon, at the latest, since the beginning of the First World War. Through denaturalization laws, the partial or full misrecognition of citizen rights, expulsions, and deportations, through forced exile and the refusal of the right to asylum—all of which were decreed and carried out by sovereign nation-states—millions of stateless—and, thus, of citizenless


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and human-rightsless—people were pushed into a world that offered them no political or juridical instance before which they would have been able to claim their inalienable rights. According to Arendt’s list, denaturalization laws were decreed in France (��), Portugal (��), Russia (��), Belgium (��), Italy and Egypt (��), France (��), Turkey (��), and Germany and Austria (��) (��–�� n. ��). Once deprived of their state-citizen rights, the stateless and the rightless could be dispossessed of their human right to life and their homicide could be organized. Arendt explains the possibility of nation-states turning against the human rights that they themselves had accepted in that a transnational guarantor power for these rights was missing, but, in doing so, she implies a more far-reaching explanation, namely, that this perversion is inherent to human rights themselves. Not only were the denationalization and denaturalization laws decreed by the same instances that had admitted human rights into their constitutions, without this contradiction having any juridical or political consequences. Human rights themselves sanctioned these �agrant contradictions,since, as property and security rights, theyward off in principle any assault—including any presumed assault—to the “integrity” of the private person or of the nation-state, and they allowed nationstates to secure this wholly imaginary construct of “integrity” through the deprivation of the rights ( Entrechtung ) of “detrimental” or “threatening” indi viduals or groups. The revocation of citizen rights and the concomitant revocation of human rights not only could be legalized on the basis of contingent political situations; their revocation could be legitimated through human rights themselves. The authors of the Universal Declaration of Human Rights from �� were not the �rst scholars of international law to be conscious of the fragility of their declarations, but they must have been among the �rst jurists who had the pervertibility of their declarations clearly before their eyes. For they admitted as the thirtieth and last article of the Declaration the following sentence: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” �� This hermeneutical protective provision comes from the possibility that every single human right can be used to destroy human rights, and that preventing



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the double bind of human rights from becoming suicidal is only a matter of their interpretation and of their political and organizational application; the issue [Sache] is thus something other than a mere juridical instance. As stated in the article, human rights could not themselves prevent their being used to destroy precisely these rights, even if they have been endorsed and formally con�rmed by their signatories; the only thing that does not follow from human rights is the right to present this destruction of right as the law ( Recht ). With this article, what is admitted is the originary ( prinzipielle) weakness of the human-rights order and of this article itself. [Therefore], it is left to the so called “good will,” and that is to say to political opportunism and, more precisely, to property, security, and private interests masquerading as interests of the state, to either adopt human rights as the measure of political decisions or to disregard or to reject them altogether: human rights themselves could always legitimate any of their arbitrary manipulations. Arendt points to the denaturalization laws of the ��s and ��s, which demonstrate that the denaturalization of humans from their political societies is identical to their expulsion from humanity. The precarious status of war and hunger refugees, forced exiles, and political émigrés worldwide, which is not any less drastic since the declaration of humanrights in ��, shows that human rights and their respective national-state speci�cations are incapable of limiting even their crassest misuses.�� For this reason, the highest legal institutions that humans have conceived of to date prove to be unsuited to de�ne and to protect what is “human.”

IV. Hannah Arendt rejects any hope in the correction of positive human rights through the progress of juridical culture, through supranational instances, or through a world government. After taking distance from the supposed fundamental rights and after introducing the concrete concepts of the right to action and the rightto opinion as thedecisively political and social concepts, she writes: We becameaware of theexistenceof a right to have rights (andthat means to live in a framework where one is judged by one’s actions and opinions) and a right to


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belong to some kind of organized community, only when millions of people emerged who had lost and could notregain these rights because of the new global political situation. The trouble is that this calamity arose not from any lack of civilization,backwardness, or mere tyranny, but,on thecontrary, that it could not be repaired, because there was no longer any “uncivilized” spot on earth, because whether we like it or not we have really started to live in One World. Only with a completely organized humanity could the loss of home and political status become identical with expulsion from humanity altogether. (��, ��–��)

To clarify the most far-reaching implications of Arendt’s decisive re�ections, at least three remarks are necessary. First, the “expulsion from humanity” that is mentioned here can only be understood as the juridico-administrative and political operation—or rather, as the continuous possibility of such an operation—that is brought to its last consequences and to its end with the logic of human rights, as soon as, in the juridical, “civilized” One World these rights become realizable—thereby becoming destructible at the same time—as the rights of all humans and, consequently, as the rights of humanity. Human rights have come to their end because they could only be valid in a common world, but this world—which is unique, homogeneous, and closed off—offers no world law and no right to a world; instead, it offers only an aggregate of state-citizen rights that, as security rights, enable the expulsion from every state of the world and thus from the human world. Only this One World can secure the one humanity, but this One World can exclude itself from the limits of its concept, declare itself as inexistent, and destroy itself. In a world whose legal representations are controlled by state and human rights, each “homeland-expellee” ( Heimatvertriebene) is a “world-expellee” (Weltvertriebene). But under the law of the One World, even those who are not yet expelled can live only as structurally worldless (Weltloser ). Juridical civilizing, which culminates in the uninterrupted juridi�cation of the world, does not leave anymore a free place where the loss of citizen rights would not drag human rights with it—hence, there is no place at all in which there are still human rights without citizen rights. Whereas their abstract concepts ought to guarantee a world for humans, they have contributed to produce abstract humans without world and an abstract world without humans.



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It was only later that Arendt would draw the implications of her observations and speak of “the end of human rights”—and, even then, only in a hesitant manner (��, ��). The essay where Arendt presents for the �rst time her re�ections on human rights in a relatively systematic manner was written in ��, partly as a response to Hermann Broch’s project for an “International Bill of Rights;” it waspublishedin �� in English under the title “The Rights of Man: What Are They?” and in the same year in German under the title “ Es gibt nur ein einziges Menschenrecht ” (“There Is Only One Single Human Right”).�� This essay is almost entirely adopted in the conclusion to the second part of The Origins of Totalitarianism, including the passage cited above on the right to have rights and on the elimination of this right through the “One World,” in which there is no “uncivilized” spot on earth that would allow [anybody] to demand this right. Notably, the book chapter only contains several parts of the fourth and last section of the essay, and it does not contain the essay’s programmatic, prospective statements on the restitution of the one andonly,albeitlost,human right.Instead,theconcluding chapter only intensi�es the description of the aporias and of the end of human rights, which are mentioned in the subtitle and title of the chapter, respectively. The sentence that opens the last section of the essay, “The concept of human rights can again be meaningful,” �nds absolutely no correspondence in the book edition, and the conclusionthat the essay draws atthe end isomitted inthe bookchapter: there is notalkoftheonehumanrightthat“transcends” the rightsofthestate-citizen,and that, for thisreason, would bethe onlyright “that can and can onlybe guaranteed bythe comity ofnations (“Gemeinschaft von Nationen” [community of nations] in the German) (��, ��, ��).�� This conclusion, whose cogency is anyhow dubious, collapses before the crude fact that even a “comity of nations” is nothing more than a community of nations and nothing more than a community that operates in accordance with the juridical premises of states. In June of ��, three years after writing her article on human rights and while working on the �nal editing of her book on totalitarianism, Arendt wrote to Hermann Broch, who also continued to deal with the status of human rights: “I personally no longer believe this [that human rights are ‘innate’] and I have accordingly completely rewritten my human rights with all due attention” (Arendt and Brock ��, ��). �� Before rewriting the essay into a book


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chapter, she must have come to doubt the guarantor power of a “political community” and of a “comity of nations” (“Gemeinschaft der Nationen”), and these doubts could be situated only in the implications of her remarks about the “One World,” which does not warrant the right to have rights but rather presents its most extreme danger. Arendt’s reworking consists essentially in taking seriously the insight that her essay already formulates concerning the end and the loss of human rights in the “civilized” One World; in giving up any high expectations in a supranational institution; and in giving a completely different sense to the transcendence of the single human right above human rights, namely, not anymore the vertical transcendence of a higher authority of the higher community of nations, but instead, the horizontal transcendence of a future in which the one and only human right could be enforced. In place of the essay’s con�dence that the “one human right” could �nd a guarantor in a “comity of nations,” thebook only states its reservations concerning the political equivalent of the community of nations, namely, the “world government.” Indeed, Arendt thought that a world government was possible, but she argued against common and propagated representations of an “idealistic bond”: “For it is quite conceivable, and even within the realm of practical political possibilities, that one �ne day a highly organized and mechanized humanity will conclude quite democratically—namely by majority decision— that for humanity as a whole it would be better to liquidate certain parts thereof” (��, ��).�� In short, a democratic, cosmopolitan state would be nothing but the institutional concretization of the already ruling “global organization” of the One World, which can exclude out of its borders each of its inhabitants and which can invoke universal rights and democratic principles at any time and everywhere to justify such a universal exclusion. Thus, the sentence from the earlier essay on human rights that already described the dilemma of fundamental rights remains valid and is repeated in the study on totalitarianism: “Only with a completely organized humanity could the loss of home and political status become identical with expulsion from humanity altogether” (��, ��). The moment when, for the �rst time in modern history, a right that would not be grounded in nature or in substance made its appearance, this one and only “right to have rights” turned out to be the paradoxical prerogative (Vorrecht ) to have no rights.



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Arendt leaves no doubt that “not only this or that civilization is at stake, but the civilization of the whole of humanity” (��, ��), since “a global, universally interrelated civilization may produce barbarians from its own midst” and not cease to produce them (��, ��).�� She leaves even less of a doubt that, in the face of a rightlessness ( Rechtlosigkeit ) that has become universal, a “new law of the earth” is necessary, which she characterizes as a “new political principle” and as a “guarantee” for “human dignity” (��, xxvii).�� However,Arendtleavesopeninwhichsenseonecouldstillspeakatall of such a political law, of such a principle, and of such a guarantee, under structural conditions that she herself shows to only allow for a law of depoliticization, a principle of the ruptureof principles ( Prinzip des Prinzipienbruchs ), and a guarantee of universal uninsurability (Unversicherbarkeit ). Therefore, it is all the more urgent to determine in detail what Arendt designates as the only human right and as the “right to have rights”; therefore, it is also all the moreurgenttodeterminewhoistheonewholosesthisright,theonlyonewho could grant a renewed expectancy for this right, and the only one who could ever de�ne this lost right—or another right that is not lost. Second, the only right that Arendt recognizes as irreducibly and genuinely political is the right to “live together and to regulate through language, and not through violence, the matters of human and, above all, of public life” (��, ��).�� Its formal characterization as “the right to have rights” has lead political and legal theorists to exegetical uncertainties that cannot be corrected easily, since this characterization, in keeping with Arendt’s view on the matter, is ambiguous.�� What is beyond dispute is that this one and only human right cannot be contained in any traditional legal catalog, since all these catalogues stem from conditions givenby God or nature and not from legality, decision-dependency, and thus from the contingency of the law. Law ( Recht ) would not be thought as the result of political deliberation but rather as its presupposition. Only with the inversion of the relation of grounding between law( Recht ) and politics as it was traditionally understood did it become clear that rights could only have been posed because there was a “right” before the positing of rights and that this “right” depended on nothing other than the human capacity to make decisions collectively—and, in this sense, politically—about the political order of a community (Gemeinwesens ). Thus, for Ar-


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endt, the formula “the right to have rights” primarily states that politics—and, more precisely, the claim to politics, the demand that there may be something like politics—precedes all rights. But the formula also states that the claim that there must be politics can be interpreted for its part as a legal claim ( Rechtsanspruch) to partake of the decisions over the order of a common life. The “right” thus reclaimed is characterized, in accordance with its status and structure, as a transcendental pre-rogative (transzendentales Vor-Recht ) and is marked through its ambivalence as still belonging to the series of empirical rights, which it structures and grounds transcendentally. This ambivalence becomes evident in the double use of the concept of right in Arendt’s formula, which, on the one hand, refers to a legally formed claim (rechtsförmigen Anspruch) and, on the other, to an already posited right.�� These two concepts are mediated by a teleology that Arendt apparently did not notice—or at least did not comment upon—which refers the claim to legal statutes without leaving any alternative or any freedom, so that the impression of a coercive relation between that “right” and these rights becomes unavoidable, suggesting the false conclusion that this relation is a matter of an auto-teleological circle. If the “right to have rights”is understood exclusively in accordance with its “legal-formity” ( Rechtsförmigkeit ) and interpreted as a program for nothing other than rights, then with the loss of this right must be extinguished as well every claim to politics and every claim that goes beyond the form of the political or that deviates from it. Only if the teleological relation between claims and rights that Arendt privileges in her formula is dissolved can a sociality become at least thinkable that would not make common cause ( gemeinsame Sache) with that sociality that lost itself to rights and that has itself been lost with these rights themselves. There is only a chance for politics, for an alteration of politics and for something other than politics, if the claim to rights is not absorbed by the legal form ( Rechtsform), and does not let itself be corrupted by it. As Arendt understands it, the “right to have rights” is a “right” before all rights insofar as it is identical to the ability (Vermögen) to decide on common action through the establishment of legal orders ( Rechtsordnungen) of communality. Since rights, and the societies that they order, are due to decisions, these decisions could not belong, in turn, to the realm of rights. If there is a



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decision on a common world, everything that belongs to this world must be an outcome and not a condition of common deliberations. For this reason, the “right” to rights can neither be grounded on properties of natural-growth (naturwüchsig ) nor derived from pregiven moral representations or preformed in logical categories. As a result, all of these would become conditions of that unconditional “right,” which, on its part, de�nes the social and political world through common, lingual action (sprachliches Handeln) each time anew, each time for the �rst time and thus independent from predeterminations. �� For this reason, even the most recent declaration of human rights cannot satisfy thestructure of what Arendt indicates as the “right to have rights.” This declaration also proceeds from both a descriptive and a prescriptive de�nition of what a human—in accordance with nature or its essence—is or has to beandwhichspeci�crightsheorshecanclaimonthegroundsofthisbeingor ought. In the Declaration of ��—which Arendt does not mention explicitly, but which she must have known by the time she was �nishing writing her book—it is stated: “All human beings are born free and equal in dignity and rights.” And: “Everyone hastherightto life, libertyand security of person.”�� In distinction to these birthrights, Arendt’s “right” is a “fore-right” (Vor-Recht ) in the strictest, most literal sense thinkable, a right before all positive and all natural rights in which it is left open what might be a human, who might be it, and which rights be�t it. Each pregiven de�nition of the human and of its rights that is derived from a vague concept of the power of nature or from determined historico-cultural instances and habits would derogate the “right” to have rights, because, through each such de�nition, this “right” would be bound to predicates, properties, and paradigms that, absurdly, place among rights the denoted capability for determination ( Bestimmungsfähigkeit ) of this “right” and must thereby annihilate it. To such de�nitional restrictions belong not only the concepts of natural growth and of provenance, of natural life and its security, but also the very concepts of the person, of allness, and of equality, since all of them lay their claim out of given conditions, moral principles, or categories of the understanding, without bringing to bear this claim itself as that which precedes each concept and exceeds their de�ning force ( De�nitionskraft ). Even the concept of dignity—which Broch places at


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the center of his “Remarks” to an “International Bill of Rights,” to which the UN Declaration concedes a prominent place, and that Arendt herself does not disown in her preface to the �rst American edition of her book on totalitarianism (��, xxvii)—is denotedby Arendt as a concept “of a rather ambiguous nature,” because it only de�nes the “nature” of the human, but, to this end, it must disregard the human’s ability of determination, its plurality, and its historical openness (��, ��).�� Each pregiven determination of the human can only restrict and a limine revoke its “right” to have rights and to belong to humanity, since only the not-yet-given humanity and its humanness could determine what or who is a human and what is the signi�cance and the reach of its rights. That the existence of this “right to have rights” should not be confused with its mere givenness and even less with its legal validity—from this follows that this right only shows itself in its loss. “We only know that there is something like a right to have rights . . . since millions of humans . . . have lost this right” (��, ��).�� It is a “right” not as positively pregiven but instead as effectively given up (aktuell . . . aufgegebenes ) to a respective future—only as given up can this “right” be refused on each individual case and hence also massively, without it being possible to declare the claim raised with this “right” to be null on principle. Thus, to the minimal de�nition of the “right to have rights” belongs, �rst of all, that it is only to be perceived as a claim to the future and a claim of this future itself—future generations and future human possibilities. It is a “right” only as a right to the possibilitization of right. But since this right itself cannot be any of the positive rights that it possibilitated, it can only preserve its possibilitizing sense by keeping open, in all of the rights released by it, the possibility of becoming detached from subsequent rights and, for this reason, it must also preserve the possibility of not manifesting itself in any positive right. Thus, the “right to have rights” should not be misunderstood as the coercion to have rights;to be able to remain this “right,” it must be thought of and used as such a right that would not exhaust itself in any positive right and in any series of rights, however long it may be. For this reason, it must also embrace the refusal or the inability (Unvermögen) to demand, posit, and use rights. This “right” does not let itself be reduced to rights; it can never concretize itself as a whole in rights. The only irreducible



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actuality to which this right lays claim lies in this claim itself to have rights, to abandon them or to relinquish them. As distinguished from all the claims grounded upon rights, the claim that makes up the “right to have rights” cannot be that of a legal subject—it cannot be a subjective or an objective right—instead, it can only be such a fore-right that warrants the possibility for the speakers to determine themselves as subjects and, �rst of all, as individuals (als Einzelne) in a structurally variable relation to others and to let themselves be determined by others. As a proto political “right,” it is an infra-subjective, a pre-singular claim to a community, in which each only becomes a subject of decisions and judgments by speaking with others and listening to them. Since this claim to rights exceeds every universality already known and categorically graspable—since it is in this sense ultra-universal—it can only do justice to the plurality of other and still other claims as the claim to further determination (Weiterbestimmungsans pruch). For this reason, the “right to have rights” can only realize itself as the liberation and the granting of such claims that are due to others; it is a “right” to the liberation of plurality and—as this fore-right of liberation—it is not merely the “right” to have rights but also to concede ( zuzusprechen) this same “right” to others and to leave (überlassen) this “right” to them. Before all law ( Recht ), it is not only the claim to rights but instead the concession of legal capability ( Zusprechung der Rechtsfähigkeit ) to the unforeseeable plurality of others, and, as such concession, it is the event of the liberation of multiple existences that are each time other, different: it is immediate self-alteration and self-pluralization. Therefore, there is only a “right to have rights” as the assent ( Zusage) to plural existence, as an assent that is not only open to a determined legal community with others but that instead realizes in itself a community that is open to further determination—not an already given, already arrived community, but one that is each time still to come. Before all rights—and even above and beyond all possible rights—this assent, which Arendt calls “right,” is the granting (Gewährung ),and,asthisgranting,theonly warrant (Gewähr ) of an existence with others, but of an existence before all law ( Recht ) and thus without it. It is the determination of the human as what is determinable and transdeterminable (Umbestimmtbaren), but never as what is already socially, politically, juridically, or categorically determined.


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Third, these comments expand on the scarce explanations that Arendt gives of the “right” to rights. They follow from the blueprint of her argumentation, which does not always go into the implications, the consequences, or the possibilities for further development of her re�ections and which often lets systematic considerations take a step back behind historical observations. In her rhapsodic presentation, the center of her re�ections on the “right to have rights” remains particularly in need of explanation: language, insofar asitistheentrancetocommunity,itsmedium,butalsoitsgreatestthreat.The loss of the one and only human right in the era of totalitarianism was �rst and foremost a double loss: a loss both of language and of the political life that is opened up and borne by language. So writes Arendt: The loss of the relevance and thus of the reality of the spoken entails in a certain sensethelossoflanguage,indeednotinaphysicalsense,butratherinthesensein which Aristotle de�nes the human as an animal that can speak; for he did not mean the physical capacity, which also belongs to barbarians and slaves, but insteadthecapabilitytoregulatethemattersofhumanand,aboveall,ofpubliclife in living together through language, and not through violence. (��, ��)��

Paraphrasing Aristotle, Arendt says that it is not so much the case that whoever speaks does so in an already given world and within a pregiven political public sphere but rather that he or she �rst bespeaks (erspricht ) a world along with others and �rst opens up a political public sphere in speaking with others. If the “right” to rights depends on the unrestrained capability to speak and, in speaking, to act socially as well as politically, then this fore-right is not a power among others and not only, as Arendt writes, “a characteristic of being-human [ Kennzeichen des Menschseins ]”; it is nothing other than this being-human itself, verbally understood (��, ��). Thus, the moment when millions of human beings were deprived of their double determination as linguistic and political animals, they were deprived not only of any politically relevant language; with it, they were at once deprived of their political existence. But they were deprived of it not with the means of language in general but with those of the political and juridical language—with the means of the language of judgment and of decision. Only predicative sen-



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tences could stipulate property ascriptions and for this reason also legal ascriptions and legal denials. They are, in an eminent sense, sentences of appropriation and expropriation. Only the judgment-language of law (Urteilssprache des Rechts )—including that of human rights—can exclude out ofthelawandisolatealinguisticexistencewithoutrights;onlythelanguageof politics can reduce a linguistic life so that it is not determined according to political rules. What occurs with the end of human rights and the loss of a “right to have rights”—according to Arendt, a world-historical break—is the radical disjunction of linguistic and political existence. With the crude fact that, at a global scale, humans can be denied the claim to cooperate linguistically and practically (handlend ) in a political community, without anybody having forfeited this claim through political declarations or activities, the circle of determinations of linguistic and political existence is broken and their context ( Zusammenhang ) is torn asunder in such a waythatlinguistic existence cannotbe grounded on political existence, nor political existence on linguistic existence. Politics, as it shows itself in the epochal loss of the one human right, was a procedure of inclusion in a society, of the identi�cation and theself-maintenance of a societythat oughtto secure an already attained status quo ( Bestand ), regardless of whether it is regional, national, or global, and must have discarded as irrelevant any decision, any expression, and any action that did not serve to secure this stability—consequently, [it must have discarded] every noncon�rmative and unstable com portment. With the reduction of politics to a procedure of preserving the status quo the end of the politics was sealed; and with the �xation of its guiding legal criteria, the end of law ( Rechts ). Politics was not anymore a lingual process of searching for a common form of life but instead the mere form of the self-reproduction of an established procedural schema that must have negated its provenance out of linguistic processes of deliberation, reduced language to acts of judgment, and eliminated its political relevance. If the polis—as Arendt assumes with Aristotle—was ever the place, free of de�nition (de�nitionsoffene), of the being-human in the sense of the speakingbeing, politics became the procedure of grasping precisely this being as an already spoken- and decided-being, as a fact and a fate ( Faktum und Fatum), and the procedure for immobilizing its generative, rede�ning, and inde�nite


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movement. Human existence is henceforth not anymore graspable as an a priori partaking in a political world through language but instead only as an existence at the threshold of politics, namely, in an eminently linguistic preand trans-predicative movement that is not secured by any legal structures and judgment structures. Only the disjunction between politics and language—which Arendt described but did not thematize properly—renders more precise the meaning of what she formulates as the one human right to have rights: it cannot be a right in the sense of a right of judgment and decision. Right is also always the right to decide on what belongs to the sphere of the law (des Rechts ) andtothelegal community and on what is foreign or inimical to it. The legal a priori of the possibility of the refusal of rights can lead, in each singular case, to the decision to deny the claim to rights and to revoke already apportioned rights. In juridical practice since ancient Greece—to which Arendt explicitly refers toward the end of the chapter on human rights in her study on totalitarianism—it has become customary, through ostracism, exile, proscription, or excommunication, to ban out of a community (Gemeinwesen) all the individuals and groups who are deemed as a threat or even only as a disturbance to the interests of the community (��, �� n. ��). With the end of national states and the globalization of juridical civilization in the twentieth century, the structural ground of such historical practices of legal denial has become transparent. It is the form of the law itself ( Rechtsform selbst ) , and only it, that is endowed with the power to make [anybody] rightless. The globalized legalformity ( Rechtsförmigkeit ) of all social relations can justify in principle increasingly global legal denials ( globale Rechtsversagungen),ithasalreadydone so, and it will continue with the massive production of rightlessness as long as law is de�ned through its ability to exclude from rights. �� In accordance with the logic of a right that is structurally a right to the denial of right ( Rechtsversagungsrecht ), the entrance to a legal community can only be achieved through such an assent ( Zustimmung ) to it that, in turn, meets the assent of this community; it can only be the consent to a consent that can be refused or withdrawn in principle, and, consequently, it must be the consent to the withdrawing or the refusal of every consent. The society that is already constituted always decides on the admission to and the



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exclusion from a legal community; it decides, therefore, in accordance to an already established rule of judgment on which, in turn, nothing can be decided with the means of this rule. But if the rule of judgment itself is suspended (außer Kraft gesetzt ), the resulting legal vacancy can only be ended, according to all traditional representations, through an act of judgment that establishes legal relations once more. Arendt must have had in mind this legal mechanics of rules of judgments, this automatism of the language of judgment, when she evoked the image of a “�nely organized and mechanized humanity” that “will conclude quite democratically—namely by majority decision—that for humanity as a whole it would be better to liquidate certain parts thereof” (��, ��). If a juridico-political decision—whether it is brought about democratically or in any other way—is, each time, a decision on the right to have rights or to have none, then it is at the same time a decision on who speaks in a politically relevant and irrelevant manner. Then, what is accomplished in each such decision is a potentially irreversible division (Scheidung ) between political and linguistic existence. But since every legal community that proceeds in such a way progressively eliminates the linguistic capability of its members and its candidates and, at the same time, eliminates their own juridical and political capability ( Rechts- und Politikfähigkeit ), such a legal community can do nothing other than exclude itself from itself and let the juridico-political linguistic apparatus run like a self-executing machine. With the attainment of universal dominance of the legal-formity ( Rechtsförmigkeit ) of social relations and the privilege of the language of judgment that it concomitantly installs, politics has become structurally an automatism of selfexclusion—namely, a mere administration of economical interests and the property rights that secure them; whereas those linguistic structures that do not let themselves be reduced to a function of judgment are deprived of their political reality and are relegated to an extrapolitical realm, which hardly permits any judgement—understood in a strict sense—on their existence. With the reduction of political existence to a juridical one and the disjunction between juridical and linguistic existence, the Aristotelian de�nition of beinghuman as dependent on the exercise of its linguistic as well as its societyforming potentiality has become historically obsolete.


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Arendt describes the self-exclusion of political humanity through the law as a process of “the civilization of the whole of humanity” that “produces barbarians out of itself” (��, ��). This self-rejection may indeed be a late product of the decline of nation-state sovereignty, but it has its origin in the structure of political language itself. Arendt characterizes it as the language of judgment and evaluation when she determines the “right to have rights” as the “right” “to live in a framework where one is judged by one’s actions and opinions” (��). Where this judgment follows a rule, as it must to have universal legal validity—for the law is a rule of judgment—and where political evaluation exhausts itself by proceeding in accordance with rules of judgment, or by judging over these rules, language as a whole is reduced to consensuses and consensual arguments or to refutations and refuting arguments, thus, again, to judgments, and all the parts of language that do not comply with the mechanics of judgment must be muted. The law of the legal communityisalaw over this community. The judgments that this lawimposes serve the security of the law even before they could serve those whose security the law ought to warrant. Whoever demands security—it may be the whole of humankind—demands it from the position of the “barbarians,” of those who are excluded from the community. What remains from an existence that has been juridically evacuated—whether inside or outside of constituted societies—is the “barbarized,” rightless humankind, which is excluded from the forms of the political, from the world of allegedly open lingual action, removed, in particular, from judgment and reciprocal evaluations: an existence that has been exiled with the means of this very world itself. For this existence, there remains only a “right” on this side of the law, but a “right” that cannot be de�ned any more as “the right to have rights” in the sense of judgment- and evaluation-rights; instead, only as “right” to have language—unconstrained by any determined linguistic form—and also to let others speak and listen to this language without privilege or limitation. What remains is a language that can begin to speak, for the �rst time massively, but not bundled up and brought into a coercive schema, a language without constitution and thus boundless, not formalized and juridically shaped, as the structurally plural language of pluralization, not as the language of incorporation and not just as the language of a community but rather of the multiplicity of communities;



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not the language of the steering (Steuerung ) of the common but rather that of its dispersion (Streuung ). What remains after the end of human rights exceeds all rights and only then can �rst become human-just (menschengerecht ).

V . In her analysis of human rights, Arendt comes to a diagnosis that converges with that of Marx, in spite of all their differences: it is rights that de�ne political society as a paradoxical dissociation bond, deny their own legal form, and turn into rightless, through legal means, those that they allegedly protect. Just as for Marx, for Arendt the self-de�ning political and juridical society is alsoat its end, but Arendt differs fromMarxinthat she does not linkthis result to the prognosis of an imminent sublation of the paradoxes of property-rights societies in a thoroughly social society; instead, she leaves her analysis on a sober description of structural depoliticization at a global scale. Marx sees in the American and French citizen and human rights a legal form in which the reduction of society to politics is accomplished in the political organization of competing property interests. A century later, Arendt sees in human rights that form in which even politics is reduced and in which the mere linguistic existence of individuals deprived of society, of politics, and of rights comes to its end. If the “new law of the earth” of which she speaks ought not to be the result of an oblivion of history and a disavowal of reality, it can only be then the law of this remainder of language and existence (Sprachund Existenzrestes ) that cannot be reduced any further,and it can itself onlybe the remains of a law, a law (Gesetz ) without right ( Recht ). In the American edition of her book, Arendt characterizes the life of the stateless and rightless as an “unquali�ed, mere existence”; the German is less concise: as “abstract nakedness of being human” and “abstract nakedness of being nothing but human” (��, ��; ��, ��–��). This being-human ( Menschsein) is stripped of all those qualities and predicates that could be granted to it as a political and juridical existence: as Arendt speci�es, the “abstract human being” has “no profession, no citizenship, no opinion, no deed by which to identify and specify himself” (��, ��; ��, ��). The American edition goes further and says that this general human being is “different in


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general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all signi�cance” (��, ��). This living being outside of political bonds may indeed speak, but its language has no social effect, since the juridical and political conditions of validity for the statements of its “unquali�ed existence” have been suspended. If it presents nothing other than its unique individuality, then it presents a signifying ( Bedeuten) without any consensually established signi�cation ( Bedeutung ). Thus, it speaks a nonrepresentational (nichtrepräsentierende) language that has no predicative force and cannot be itself an object of �nite predications; a language that is quali�ed through absolutely no achievement and that is identi�ed through no belonging. Differing from the language of judgment and of reciprocal evaluation that, according to Arendt’s paraphrase of Aristotle, constitutes the political essence of the human, the language of the absolutely isolated existence is deprived of judgment. It does not speak within a homogeneous political organism, in a closed circle of concepts, arguments, conventions, and predetermined addressees; instead, it speaks as the language of an undetermined plurality of politically unde�ned elements, which are relatable (beziehbar ) to each other only due to their differences, without any stipulated juridical relation. Otherwise than Arendt believed, if their “absolutely unique individuality” is characterized as “different in general,” then it must be different even from the categorical universality of a genre, a type, or a form, which lets identi�able individualbeings be subsumed, and it can only be as an existence that is different from itself, without generic or speci�c form. Whereas the law follows a rigid form-principle, the absolutely individual existence is the utterly formless, the incommensurable, what resists the measures and norms of juridically graspable lives and comports toward these measures and norms as the ground of their possibilitization, but only as a possibilitization that, concomitantly, brings within itself their im possibilitization (Ver unmöglichung ). As [this existence] withdraws itself from predication, it does also from every prescription. Since it is structurally plural and codetermined by others, since it does not have command over any power of identi�cation and is subordinated to no rule of judgment, it is capable of no conclusivede�nitionandevenlessofaself-de�nition.Thus,itcannotbecomethe



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functionary of prospective rights, counterfactual ideals, or even only have a consistent�gure(Gestalt )uponwhichitspotentiality(Vermögen)wouldbelaid:ithas no potentiality that it could reclaim as its own.�� As Arendt suggests, another beginning for communal life that would not end in the paradoxes of classical political human rights, or in those of civic human rights, [such a beginning] can only arise out of the non-predicative language of a politically and juridically unquali�ed existence. Of this other beginning speaks the language of desire in the citation from Augustine “volo ut sis” (I want you to be) that Arendt draws upon as a characterization of an extra-political af�rmation of existence (��, ��); of this other beginning speakswith greater emphasis anothercitation from Augustine that appears in the last chapter of the book on totalitarianism, and which is decisive for Arendt’s philosophy: “‘ Initium ut esset, creatus est homo’—‘that a beginning is made man was created’ said Augustine” (��, ��). This beginning, which is “the promise, theonly ‘message’ which the end can ever produce” (��) cannot be thought of as a beginning for a preestablished end, but only, as Arendt comments in Vita activa oder vom tätigen Leben, as “Anfang des Anfangs oder des Anfangens selbst” (the beginning of beginning or of the beginning itself) (��, ��); therefore, as such a beginning that sets free what is begun with it and to which goal it leads: as a beginning that is nothing other than freedom, and freedom particularly from all determination through a previous or a projected society and its principles of order.�� If one understands, as Arendt does, the end of human rights and of the “right” to have rights as the promise of such another beginning, then this beginning can only set in with that language that has been ousted from the sphere of the law, and it can only carry itself forward in a language in which the privileges of judgment and of decision—which command every sphere—are not valid.Only the language of a claim on the other side of legal claims—thelanguage of a mere desire for community that precedes each already-constituted community—can be the beginning of the constitution of a community and preserve itself as a beginning in every community that it does not bring to silence through the regiment of rights. If this language is a beginning before every constitution, every consensus, and every coherence—before the cum of a communitas and its rules of communication—then each community that is


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opened with it can only be, in turn, a beginning of other beginnings, a community toward unforeseeably further communities that are subjected to no teleology, withdrawn from every anticipation, and that correspond to no concept or name that could be formed from them—may it be the name “community” or “society.” The language of the beginning and of the breaching of the way ( Anbahnung ) of a community that accords with no readily constituted community was not foreign to Greek antiquity, upon which Arendt relies. Indeed, classic political theory proceeds from the assumption that the human is always and atthesametimea zo on politikon anda zo on logon echo      n,andthatitisonlythe one because it is the other. But the ascription of political status is not the achievement ( Leistung ) of every linguistic form but rather only of the judging, predicative, apophantic speech that decides on whether something is connected with something else or not. The “right to have rights”—and, �rst of all, political judgment-rights—if it is not to be itself interpreted as a political right, cannot have the structure of judgment propositions, since this right consists only in the minimal demand, which cannot be reduced any further, to be able to be bound to others, but it does not consist in the judgment of whether such a bond exists or not. Aristotle—who, in his Politics (��a), formulated the double determination of the human as a political living being in command of language—names, in Peri herme  neias (On Interpretation)(��a),the euche  —the petition, the prayer, the desire, the request, the claim, or the exigency—as the single and thus paradigmatic example of a nonpredicative utterance and says of it that it is a statement that does not present a state of affairs and therefore is neither true nor false. This claim or this exigency—it can also be said in this way—does not belong to the language of theory but instead to a generative and proleptic language in the absolute minimum of its existence; it is the languageofaclaimtohearing,toattentiveness,toanaddressing( Zuwendung ) or an assent that is not yet apportioned and whose apportionment, in turn, cannot be decided in the mode of the claim but rather only in the mode of judgment. It is not a claim as the expression of an ability or force but instead as the articulation of the inability to ful�ll this claim itself or even only to identify it as a claim: it is the language of the absolute self-insuf�ciency and of a reliance on the other, on the language of the other and on other languages,



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without which the claim could not even once be a claim, since without them no being could be granted to it. Just how unreservedly Aristotle disclosed the problem of an ontology— and the necessity of a meta- and meontology—of the petition and of prayer, is attestedintheonlyminusculefragmentofhislosttext Peri euches (On Prayer ), which has been handed down from Simplicius in his commentary to De cœlo (On the Heavens ). In this highly signi�cant passage, he says: “That Aristotle had something in mind that exceeded thinking and being (hyper ton noun kai  a), becomes clear in the end of his book ‘On Prayer’: ‘God is either ten ousi �� thinking (nous ) or beyond thinking (epe  keina  ti tou nou)’” (��, ��; ��, ��).

In one of the few emphatic places in his Politics , Aristotle speaks of the best government as one that would be just as we would invoke it in a prayer: it can only be a government “kat euche  n,” according to prayer and in keeping with the measure of its structure (��b��).�� Whatever may be the addressee or the theme of a petition, of a prayer, or of a claim, it lies outside the realm of veri�able or falsi�able predications of existence. For Aristotle, the wish, the plea, the lamentation—which exceed every judgment—belong to the language of rhetoricians, whose quest for persuasion and conviction could become an element of political or juridical deliberation without already belonging to the language of evaluation or of decision. In The Human Condition, Arendt gave at least one indication of this nonpredicative language (��, ��–��, n. �). Even before any possibility of a concordance with others, this language enounces (bekundet )—but it does not express—the mere existence of a separation (Unterschieds ) from others and even insists on this separation in an attempt to bring it to bear as such. When this language turns itself as a petition to an other, it even goes ahead of the other andisa petitionwithoutthis otherthatcouldful�llit;apetitionbeforeit,whichmerelyopensupaplaceforthe other without being able to decide on whether this place is occupied or remains vacant: it is each time at once a petition to another and to nobody, the breaching of the way ofa community out of the distance from it, the breaching ofthe way of a common language without it being already given or even without its possibility beingsecured.Itisnotthespeechofabeingincommandoflanguagebutratherof a being without substance that petitions for language, a zo on logon euchomenon.   This petition is still to be heard in each expression and in each judgment.


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Only because the language of the political, inde�nite existence—and thus of the political in-existence—speaks each time out of the distance from a community does this language give space to the community and to itself and sets itself and the community free: it lets the community appear as its counterpartandsetsitlooseasthatwhichhasabandonedtherealmofexistenceor can never enter it. This language constitutes the common actuality ( gemeinsame Wirklichkeit ) as modi�able, historical, and inconclusively �nite, as other than itself and other than what can be expressed of it each time: this language constitutes it as revocable. Since to be a claim this language is referred to others, it cannot be monological, it can only be just as plural as the undetermined plurality of others, to which it exposes itself. Only in virtue of this language of the absolute singular existence—the “absolutely unique individuality”—is therea plurality that does not fuse itself into the unity of an organic corporation, and only in this language the event of a pluralization that possibilitates communities accomplishes itself, and yet without being able to come to its end in any determined or predetermined community. But just as the languageoftheabsolute—ofthesingularized,underivable,unconditional—claim pluralizes, in that it sets free the space for other languages, it also gives itself over to the possibility of its remaining away (ihres Ausbleibens ) and gives itself up—also, in this sense, a liberation. It is an eminent social event, insofar as it is the beginning of each society, but it is also not any less an eminent event [that is] distant from society ( gesellschaftsfernes ); for its addressee can never be an already given one, but rather it can always only be a liberated addressee, released from its command. If as a petition or prayer—as euche  —the language of the predicateless existence turns itself toward a god, then it is a language even before this god and without it; it is a prayer without god that can only admit god because he is absent, and the prayer even permits his possible response only in the realm of his ongoing absence. There can be no “political theology” under the conditions of nonpredicative language—and those are the conditions of protopoliticalexistence.Thereispoliticaltheologyonlywherepoliticsisasecuredfact or an actualizable possibility, but not after its end. At the beginning of political life, which begins with that end, stands no god. The “atheistic” democracythat Marx mentions still had for him the thoroughly religious form of political



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relations secured through property relations; the existence deprived of property andof qualities thatArendt describes remains structurally irreligious;the breaching of the way of a community that proceeds from this existence can only be thought of as a relation without relata, as determined to continued transdeterminations (Umbestimmungen).Itisnolongeratheistic,becauseitis neither af�rmatively nor negatively related to the secularized, theological contents and forms in which “the sovereignty of the human” can assert itself to be “the highest being for humans.” �� Who or what is “the human” can underlie no judgment, if the human must be that for a human who only searches for itself in it but does not de�ne it. Those who are deprived of rights, ofastate,andofpolitics,whichhavebeenproducedthroughthepoliticsofthe right-states, inhabit no other, ideal or universal world, neither the Greek kosmos nor Tertullian’s mundus —they inhabit no world. Along with the res publica, that world organized in communality has become for them a res aliena. Their language is not the language of world economy, in which the world is shrunk to one dimension of action with information and values. The languageofthosewhohavenoworldcanonlybethelanguageoftheliberation of a world that is other than the world from which they were exiled: it can only be a language for such a world that is not meant, intended, and de�ned through intentions; not an already known world that is appropriated in its knowledge but rather a world released from aims and securities, a world let free by anyone who relates to it, and only for this reason, it is absolutely a world—free from all concepts of the world. If the fundamental structure of the “right to have rights” is determined by the nonpredicative language of the claim, the demand, or the petition, then it must also preserveitsdetermination totransdeterminability (Umbestimmbarkeit )even under the conditions of judgment and of decision. Even there where the claim ought to be consented and the prayer corresponded, so that a minimal communality between the speaker and the respondent takes place, the demand and the prayer remain, as judgmentless utterances, different from the judgment that consents to them. There is no formally secured correlation between claim and correspondence ( Anspruch und Entsprechung ). However, if the always hyperbolic claim ought to �nd a correspondence, then the judgment that brings about this correspondence must be structurally—and hence ad in�nitum—open to further


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judgments; it must be a judgment of the continuation of judgment (Urteilsfortsetzungs -Urteil ) and,therefore, it can onlybevalidunder the constraint that it can be modi�ed or eliminated through further judgments and, to such an extent, that it can be carried over into a nonjudgment. In accordance with this a priori of continuation, all decisions must be such for further decisions, through which undecidabilities are never dispelled without having produced further undecidabilities. Each determination—and, �rst of all, the determination of the “human”—can only be a determination toward further determination, each determination leads to the displacement (Verschiebung ) of the boundaries that it posited, each de�nition contributes to inde�nition. Determination is, in every sense of the word, trans-determination (Fortbestimmung ).�� Thus, judgmentdecisions could not prepare (vorarbeiten) the elimination of undecidabilities but rather only their excess and, with this excess, the generation of further claims, exigencies, and desires. The “right to have rights” is lost when it is not exercised as the claim, free of right (rechtsfreie Anspruch), to contribute only to those judgment-rights that are relieved by further rights, thus,only to those rights that are conducive to the dissolution of rights and, with this, to the laying bare of the claim that carries them. Only this claim—which grounds communities but goes beyond anyconstituted community, beyondthe politicalsystems erected from case to case, and which exceeds even the form of the political and its stabilizing legal form—only this claim would do justice to the language ofan existence without predicates along with the languages that proceed from it. Its lingual justice (Sprachgerechtigkeit ) is a beginning that cannot be traced back to any other and that can be surpassed by none, since it is a beginning merely for further beginnings and is offered to them without commanding them. The beginning of language and law in the claim is an arche  an-arche  .

NOTES

Throughout the translation, I have tried to replicate the rhythm of Hamacher’s thinking at the expense of adopting the more abbreviated syntactical structures that characterize



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contemporary academic writing in English. Translation decisions that call for some justi�cation are explained in notes. Most notes belong to the author, barring a few exceptions where I provide bibliographical details that are missing in the original. Whenever Hamacher cites a text written in a language other than English, I refer the reader to standard English versions of the texts in question. In some cases, I also provide further bibliographical details indicated with a note immediately following Hamacher’s own notes. I want to thank María del Rosario Acosta, David Johnson, and Werner Hamacher for giving me the opportunity to translatethis essay. Thetranslation bene�tted immenselyfrom Hamacher’s own suggestions, and, above all, from the insighftul revisions of Mauricio Gozález Rozo. I must also thank Mark Stoholski for his help with Greek diacritical marks, among other matters. Responsibility for its shortcomings is entirely mine. �. See Tertullian, “Apology” ([��] ��). For the Latin, see p. ��, and p. �� for the English. Tertullian’s argument is explicitly based on Jesus’s instruction in “The Gospel of Matthew” ��,��:“RenderthereforeuntoCaesarthethingswhichareCaesar’s;anduntoGodthethings that are God’s” (Blaney ��.) With this, the disjunction between political and religious community is accomplished: to the former, taxes are due; to the latter, something com pletely incommensurable. In Greek Antiquity, such a strict distinction is only to be found in the Cynics. From Diogenes of Sinope has been handed down the paradoxical word “kosmopolites ,” a citizen of the cosmos (see Laertius ��). By now, historians of religion have made it plausible to argue that Jesus was a cynic teacher in the tradition of Diogenes; see Lang �� (Jesus, the dog: life and teachings of a Jewish cynic; untranslated). [The English translation of the passage from Tertullian has been modi�ed and the English translation of Matthew has been supplied by the translator.] �. See Paul, ��, I, �. [The full verse in Greek reads: “ Πρτν µν εαριστ τ θε µυ δι Ιησ 

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ριστ περ πντων υµν, τι  πστις υµν καταγγλλεται ν λω τ κσµω” z

z

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(First, I thank my God through Jesus Christ for you all, that your faith is spoken of throughout the whole world). See Westcott and Fenton, ��. For the English version, see Blaney, ��.] �. [Throughout thetext, theGerman noun Anspruch will be translated as “claim.” This noun is perhaps the most crucial word in Hamacher’s entire text, and my English rendition does not do justice to it. Anspruch is built from the verb sprechen and the preposition an and could be literally translated as “thesaying-to” or “the speaking-to.” Thus, the German word contains an unavoidable reference to a structure of address, it designates that way of language that is primarily turned to an addressee and that, as Hamacher insists, is structurally apostrophaic, insofar as the addressee could only come to be as such after this inaugural turn of language. At the same time, the German word also has the legal connotations that are associated with the noun “claim” in English. Unlike the German Anspruch, the very “body” of the English word “claim” does not refer us to a mode of speech that turns to an addressee or that is signaled by its power of address. However, a somewhat analogous con�guration of apostrophaic speech is at work at an etymological level: the English term “claim” is derived from the Latin verb clâmâre, which means to cry out, to declare, to call


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upon, or to proclaim. Finally, the reader should be aware that the English term “demand,” which is often used to translate the German noun Anspruch intoEnglish,isonlyusedinthis translation to render the German noun Forderung or the verb fordern.] �. Concerning the determinant effects of radical strands of Christianity on the fundamental political representations of modernity, see Jellinek, ��. For supplementary materials and exacting discussions on Jellinek’s study, see the earliest edition Zur Geschichte der Erklärung der Menschenrechte (On the History of the Declaration of Human Rights; untranslated), Schnur, ��.For further developments of Jellinek’s theses—particularly concerning their in�uence on Max Weber—and for an updated bibliography on the subject, see Joas, ��. �. Citation added by the translator. �. [The German word Vorrecht is translated initially as “prerogative” and later on as “foreright.” The English noun “prerogative” captures the standard meaning of the German Vorrecht by designating primarily the possession of an ability or the power that justi�es exercising any privilege. Although the German term “Vorrecht ” is often translated by the less legalistic-sounding English word, “privilege,” I have opted for “prerogative” because its composition and etymology bring the reader closer to what is at stake in Hamacher inventive use of the German term “Vorrecht .” Unlike “privilege,” the word “ prerogative” shares the same pre�x as the German “Vorrecht , ” indicating at the same time the senses of coming before or of standing in front of something. Secondly, the root of the English “prerogative” stems from the Latin rogo  , which means to ask, to question, or to interrogate, and,byextension,tobeg,tosolicit,ortorequest.Thesecondsemanticlinecanstillbeheard in the English word “rogation.” If read with an eye to its etymology, the term “prerogative” cannot but evoke both thescene of a request or of a prayer that is placed before someone or something, as well as the sense of a solicitation that would precede any such request or prayer. However, the term “fore-right” is coined in an attempt to capture Hamacher’s gesture of separating the pre�x “vor” and the German noun “recht” by means of a hyphen: Vor-recht , which occurs after the�rst half of theessay. The reader should keep in mind that whenever “fore-right” appears in the English translation, Hamacher is neither referring to a prerogative in the traditional sense of the term, nor to the right to such a prerogative. Instead, he is tryingto bring to language a claim that precedes anyclaim to rights, including the claim to any juridical privilege whatsoever—a claim that is contained in the very body of the German noun Vorrecht , which, when read as Vor-recht , reinscribes even the most sovereign prerogative as dependent upon a claim that does not necessarily have the character of a right, a claim before all rights and even before the possession of the right to such rights.] �. Citation added by the translator. �. Citation added by the translator. �. Citation added by the translator. ��. [As a rule, the German noun Unterschied is translated by the English noun “separation.” Although this noun can also be rendered in English as “difference,” I have opted for “separation” in an attempt to emphasize the fact that the German word is built from the



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verb scheiden—which means to divide, to part, or to depart—and the preposition unter — which means “in between.” The English noun “difference” will be used whenever Hamacher himself uses the German noun Differenz , though the reader is well advised to keep in mind the strong semantic and conceptual bond that links these two nouns.] ��. On the concept of the police that orients Marx here, see Hegel ��, §§ ��–��. Also see Fichte ��, § ��; and von Justi �� (Fundamental Principles of the Science of the Police Grounded in the Rational Final Purposes of the Police, untranslated). ��. Citation added by the translator. ��. [It is only in the German edition that Arendt uses the term aporia in the subtitle of her chapter on human rights; see Arendt ��, ��.] ��. See Universal Declaration of Human Rights ��. Citation added by the translator. ��. See Benhabib ��, ��–��. Benhabib is among the political scientists who tend toward a different appraisal of the situation. She attempts to prove that “the nations of the world have learned from the horrors of the past centuries,” and, for this reason, she refers to the treaties and institutions that “protect those whose right to have rights has been denied”: the �� Geneva Convention Relating to the Status of Refugees and its Protocol from ��, the UN High Commissioner on Refugees, the World Court in The Hague, as well as the recently established International Criminal Court (��). However, at the end of her plea, Benhabib must concede that “despite considerable developments . . . Arendt [was] not wholly wrong in singling out the con�ict between universal human rights and sovereignty claims as being the root paradox at the heart of the territorially bounded state-centric international order.” More clearly stated: these “considerable developments” are negligible; Arendt was not “not wholly wrong,” she was not wrong. ��. The American edition of this essay was �rst published in �� in Modern Review . The German appeared in the same year in the journal Die Wandlung and since then it has been republished in Die Revolution der Meschenrechte, ed. Christoph Menke and Francesca Raimondi (Berlin: Suhrkamp Verlag, ��), ��–�� (The Revolution of Human Rights; untranslated). In a letter to Hermann Broch from September �, ��, Arendt announces to Broch that “[I] have written an article on human rights [ Human Rights in the German original]partly because of your article.” See Arendt and Broch ��, ��–�� (Correspondence ��–��; untranslated).Arendthas in mind here Broch��.Brochsenthisremarksinthe middle of �� to Eleanor Roosevelt, the chairwoman of the UN Commission on Human Rightsthathadbeenactivelyworkingontheformulationofan“InternationalBillofHuman Rights” since the beginning of the year. Another addressee of Broch’s remarks was Bishop G. Bromley Oxnam, who promoted the composition of this bill and the acceleration of its passage in the commission and who had requested Broch’s support for this reason. Broch’s contribution focuses on the protection of human dignity. To this end, he submits both a proposal for the formulation of an antidiscrimination article and detailed recommendations for the establishment of an International Criminal Court. SeeBroch ��, ��–�� and the commentary of the editor Paul Michael Lützeler, ��–�� (Political writings; untranslated). In view of these circumstances, it is likely that Arendt wanted to support Broch’s intervention with her essay, in spite of her reservations. Broch thanks her in a letter from


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September ��, ��, by writing that: “deception (and self-deception) could not have been uncovered more precisely and directly” ( Arendt and Broch ��, ��). [I have only been able to �nd a manuscript thatpresumably contains an English version of Broch’s text on human rights. The manuscript bears a slightly different title, “Bill of Rights—Bill of Duties: Utopia and Reality,” and it was transcribed and with marginal notes by Robert A. Kann on thebasis of a conversation with Broch himself. This text is available in Broch n.d.] ��. For the German version of these citations, see Arendt ��, �� and ��, respectively. [Hamacher cites the German edition of Arendt’s �� essay on human rights, “Es gibt nur ein einziges Menschenrecht,” reproduced in Die Revolution der Menschensrechte. At the moment of publication, I have not been able to �nd a copy of the English version of this essay, “The Rights of Man: What Are They?” However, the latest edition of Arendt’s The Origins of Totalitarianism published by Schocken Books (��) contains passages that correspond to the citations from Arendt’s early essay that Hamacher quotes here. These passages appear in the second appendix to this new edition of Arendt’s book, which reproduces a text titled “Concluding Remarks” that served as the conclusion to the �rst American version of The Origins of Totalitarianism, published in ��. Hamacher is right in pointing out that these crucial sections of Arendt’s earlier essay were not included in “The Decline of the Nation-State and the Ends of the Rights of Man”—the concluding chapter to the second part of her book, titled “Imperialism.” And yet, it must be noted that the two passages that Hamacher cites above on the “comity of nations” and on the possibility of a restoration of the meaning of human rights were incorporated as part of the conclusion to the �rst American edition of Arendt’s study on totalitarianism. Nonetheless, the publication history of Arendt’s chef d’oeuvre con�rms Hamacher’s point. Subsequent editions of her study of totalitarianism, beginning with the German version that appeared in ��, replacedtheoriginalconclusionwithachaptertitled“IdeologyandTerror:ANovelFormof Government.” This decision was then incorporated into the second revised American edition published by Meridian Books in ��. In a short text titled “Totalitarianism,” which appeared in �� in the newsletter of Meridian Books (and which is reproduced as the �rst appendix in the Schocken �� edition of The Origins of Totalitarianism), Arendt herself accounts for the change in the book’s ending by expressing her dissatisfaction with the “inconclusive” characterof herstudy’s original conclusion: “The book originallyended with certain suggestive but consciously inconclusive ‘Concluding Remarks’ that are now re placed with a much less suggestive and more theoretical chapter on ‘Ideology and Terror [sic]ANovelFormofGovernment’”( Arendt ��, ��). Although here Arendtdoes notrefer to thetheoretical issue at stake in the original conclusion to her book, the fact remains that she ultimately decided not to reproduce the original conclusion that incorporated arguments from the�� essay that identify the“comity of nations” as thesole politicalcorrelate to the “transcendentality” of the “one human right.” This allows us to interpret Arendt’s editorial decision of replacing her original conclusion with a less “inconclusive” text as perhaps stemming from her own dissatisfaction with the state-centric, nation-based, legalistic approach to the issue concerning the political correlate to the right to have rights. This



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would con�rm Hamacher’s claim that Arendt herself saw the limits of her earlier understanding of human rights and sought to rethink her approach to this pressing issue in her work by moving away from any such notion of a “comity of nations,” from any thinking of a world-community or of a global-corporation of juridico-political instances.] ��. Since the composition of the human rights essay in ��, the “Universal Declaration of Human Rights” had been delivered (December ��, ��). ��. In her essay “Karl Jaspers: Citizen of the World?” Arendt speaks of the world-state in terms that are similar, and not any less drastic, as a “forbidding nightmare of tyranny.” See Arendt ��, ��. ��. [The �rst passage that Hamacher quotes is not found in the English version, whereas the second is found in both editions.] ��. In the preface to the �rst edition of the American version, Arendt states “that human dignityneeds a new guarantee which can be found only in a new political principle, in a new law on earth, whose validity this time must comprehend the whole of humanity while its power must remain strictly limited, rooted in and controlled by newly de�ned territorial entities” (��, xxvii). ��. See Arendt ��, ��. [Thispassage is not found in the English edition. The context for these remarks is Arendt’s crucial discussion of the human condition in “The Decline of the Nation-State and the Ends of the Rights of Man,” where Arendt explicates the relation between rightlessness and the human condition by recourse to Aristotle’s de�nition of the human and to the question of the social status of slaves. The passage from the English version that roughly corresponds to this passage in the German edition reads as follows: “Before this, what we must call a ‘human right’ today would have been thought of as a general characteristic of the human condition which no tyrant could take away. Its loss entails the loss of the relevance of speech (and man, since Aristotle, has been de�ned as a being commanding the power of speech and thought), and the loss of all human relationship (and man, again since Aristotle, hasbeen thought of as the‘political animal,’ thatis one who by de�nition lives in a community), the loss, in other words, of some of the most essential characteristics of human life” (Arendt ��, ��).] ��. Compare to the discussions in Gosepath and Lohmann �� ( Philosophy of Human Rights ; untranslated); Brunkhorst, Köhler, and Bachmann �� (The Right to Human Rights ; untranslated); Benhabib ��; and Menke ��, ��–��. ��. [The German adjective rechtsförmigen is translated as “legally-formed.” Similarly, the noun Rechtsförmigkeit is translated below as “legal-formity,” since other viable options such as “legal-formality” fail to capture the sense of the German formulation, which could be best explained as the quality (or, in a different register, as the “essence”) of that which has been formed in accordance to the form of the law. Also, as the Grimm Brother’s dictionary points out, the German word Förmigkeit has af�nities with the Latin noun parilitas , which means “parity” and is often used in German preceded by the pre�x gleich- in the word Gleichförmigkeit , which could be translated as “uniformity.” The reader is advised to hear in the term “legal-formity” the univocal, unidirectional process of formation and of homogenization of


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human, social,and political relations in accordance to theform of the law that is essentially delimited to the right to property and to property rights.] ��. [The appearance of the German noun for language, Sprache, in the adjectival form, sprachlich, or as a pre�x in a compound noun, such as Sprach-gerechtigkeit , poses several translation problems, which are only rendered more acute by unavoidable contextual matters. In thistranslation, I have opted for therareEnglish adjective “lingual” to renderon several occasions Hamacher’s use of terms built around the German verb sprechen, “to speak.” In this case, “lingual action” translates sprachliches Handeln in an effort to indicate that what Hamacher is here developing is not to be understood in terms of any theory of “discursiveaction,”andnotevenintermsofspeech-acttheory.Towardtheendoftheessay, theadjective“lingual”appears again as part of thephrase“lingual-justice,” which translates therareGerman noun Sprachgerechtigkeit . I am grateful to Mauricio González Rozo for this suggestion.] ��. See Universal Declaration of Human Rights ��. Arendt is strongly against this: “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 ��, ��). [Hamacher here cites passages from the �rst and third articles of the Universal Declaration of Human Rights.] ��. “this dignity was of a rather ambiguous nature.” ��. In the American edition, it says: “We became aware of the existence of a right to have rights . . . only when millions of people emerged who had lost and could not regain these rights.” Theuse of pluralin “lost . . . rights” limits theloss to individual rights; in theGerman edition, it is changed into a singular that refers to the right to have such individual rights. According to the logic of Arendt’s re�ection, it is only the loss of this “right” to rights that made us remark upon the existence of this one right that bears all other rights: we become aware of it only if it is denied to us. The existence of this “right” is independent of juridical validity and political recognition. ��. [This passage is signi�cantly different in the American edition. For the passage in the American edition that corresponds to the passage that Hamacher cites here, see p. ��. Also see the previous translator’s note.] ��. This is still valid under the conditions that have been created through article � of the Universal Declaration of Human Rights. If there it says “Everyone [ Jeder Mensch (Every human)] has the right to recognition [ Anspruch auf Anerkennung (claim to recognition)] everywhere as a person before the law,” it not only remains questionable who is here addressed as a human, it also remains open which meaning is here connected to the concept of “claim.” If what ought to be understood here is a claim to rights, then the sentence says: “Every human is a legal person,” and it only repeats the questionable determination of article � that [states that] all human beings are born equal and free in dignity and rights. In this sense, article � of the American Convention on Human Rights from November �� also declares in a distinctively tautological manner: “Every person has a right to recognition as a person before thelaw.” But if “claim” does not mean right-claims, but the claim to a right ( Anspruch auf ein Recht ) that is lent only through the recognition of theclaim, then thepath is opened for thedismissalor therevocationof thisrecognition and



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consequently for the legal refusal of the status of legal person. This interpretation is supported by the emphasis that article � places on the “everywhere,” where a corresponding every time is missing. With this, it can be interpreted that the claim to the right to recognition as a legal person does not stand every time but rather can be refused or revoked. The right to asylum formulated in article ��, which was put in place for such cases of legal refusal, implicitly counts on the persecution by the signatory states of legal persons disposed as rightless, when it guarantees that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Moreover, in so doing, the sentence lets the issue rest in securing the right to seek asylum—note: the right to the search—and the right to enjoy asylum in “other countries,” instead of extending the right toall other countries so that all countriesareimposedwiththeobligationtograntthisrightandnottoexpelasylum seekers to “other countries.” But even if this obligation were then to be made into an integral part of a new human rights order, as a legal order, it could still not prevent this obligation from being ful�lled in a way that deters the exercise of this right or that makes it impossible. In short, human rights remain—in their earliest and in every still possible formulation—rights to the refusal of human rights. [For the German version of the UniversalDeclaration of Human Rightsthat Hamacher cites here, seeBruno andFastenrath ��.] ��. In many respects, Giorgio Agamben’s Homo Sacer studies follow Arendt’s insights, undertaking the attempt to identify paradigmatic �gures (Gestalten) of a “form of life” that emerged with the collapse of juridical assurances—including those of human rights. With the recourse to the Aristotelian concepts of form and of potentiality (Vermögen), Agamben’s most important project touches its most extreme, delicate point. Here, it must become problematic whether one can still speak about “form,” “life,” and “potentiality”— and even more of a potentiality for impotentiality—without any further quali�cations. See, in particular, Agamben ��. ��. Citation(��) added by thetranslator. [In theAmerican edition of The HumanConditionthe passage that corresponds most closely to the passage from the German that Hamacher quotes in his essay reads as follows: “This beginning is not the same as the beginning of the world; it is not the beginning of something but of somebody who is a beginner itself” (��, ��).] ��. Aristotle ��, ��. The German translation follows with some modi�cations the translation of Hellmut Flashar in Aristotle ��, ��. ��. See Aristotle ��. Citation added by the translator. Here is the full passage to which Hamacher alludes in Greek: “στε δλντι κα πλιτεαν τς ατς στιν πιστµης

τν ρστην θεωρσαιτς στι κα πα τις ν σα µλιστ εη κατ εν µηδενςµπδντς τν κτς, κα τς τσιν ρµττυσα” (So it is clear that with the best form of government as well, it belongs to the same kind of knowledge to study what it is and of what sort it would be if it were most in accord with one’s wishes and had no external impediments, and also what form is suited to what people). For the English translation, see Aristotle ��. Thanks to Mauricio González Rozo for his help tracking down this passage in the original Greek. ��. See note �.


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��. [The translation of Fortbestimmung as “trans -determination” is unfortunately one sided, and in a way that anybody familiar with Freud’s analysis of the“ fort/da”willbeabletospot. The modi�er “ fort ” in German has several meanings depending on the context: it can indicate a movement away from a speci�c place or a movement that keeps going onward, going along, or going forth. In this case, the reader should keep in mind these two senses: a sense of continuation or of an ongoing movement and a sense of a movement that has been carried away or carried off, implying that something is gone. For the thinking of determination as “trans-determination” that Hamacher develops here erodes, through its very ongoing movement, the teleological, eido-logical determination of determination itselfas a  movement that is ruled by any eidos or any morphe: “further-determination” is excessive by vocation and by “determination.” In the words of Hamacher, “trans-determination” is “a determination that is not only transformative of any previous determination, but that goes beyond the very form of determining.” I am grateful for Hamacher’s guidance on how to translate this term.]

REFERENCE S

Agamben, Giorgio. ��. Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen. Stanford, CA: Stanford University Press. Arendt, Hannah. ��a. “Es gibt nur ein einziges Menschenrecht.” Die Wandlung �: ��–��. . ��b. The Rights of Man: What Are They? Modern Review �, no. �: ��–��. . ��. Karl Jaspers: Citizen of the World? In Men in Dark Times . ��–�� New York: Harvest. . ��. The Human Condition. Chicago: University of Chicago Press. . ��. Vita activa oder Vom tätigen Leben. München: Piper Verlag. . ��. Elemente und Ursprünge totaler Herrschaft. AntiSemitismus, Imperialismus, totaler Herrschaft . München: Piper Verlag. . ��. The Origins of Totalitarianism. New York: Schocken Books. . ��. Es gibt nur ein einziges Menschenrecht. In Die Revolution der Meschenrechte, ed. Christoph Menke and Francesca Raimondi, ��–��. Berlin: Suhrkamp Verlag. Arendt, Hannah; and Hermann Broch. ��. Briefwechsel ��–��, ed. Paul Michael Lützeler. Berlin: Jüdischer Verlag. Aristotle. ��. Politics , trans. Joe Sachs. Newburyport, MA: Focus Publishing. . ��. Aristotelis Fragmenta Selecta, ed. W. D. Ross. Oxford: Oxford University Press. www.perseus.tufts.edu/hopper/text?doc=Perseus%�Atext%�A��.��.��%�Abook%�D�%� Asection%�D��b (accessed March ��, ��). . ��. Politica, ed. W. D. Ross. Oxford: Clarendon Press, ��. www.perseus.tufts.edu/ hopper/text?doc=Perseus%�Atext%�A��.��.��%�Abook%�D�%�Asection%�D��b(accessed March ��, ��). ¨ bersetzung. Bd. ��. Fragmente zu Philosophie, . ��. Aristoteles. Werke in deutscher U Rhetorik, Poetik, Dichtung , trans. Hellmut Flashar. Berlin: Akademie Verlag, ��.



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Benhabib, Seyla. ��. The Rights of Others: Aliens, Residents, and Citizens . Cambridge: Cambridge University Press. Blaney, Benjamin, ed. ��. The Holy Bible: King James Version. New York: Oxford Edition. Broch, Hermann. ��. Bemerkungen zur Utopie einer “International Bill of Rights and Responsibilities.” In Politische Schriften, ed. Paul Michael Lützeler, ��–��. Frankfurt: Suhrkamp Verlag. . n.d. Bill of Rights—Bill of Duties: Utopia and Reality. In Hermann Broch Collection; ��–��, ed. Robert A. Kann. Manuscripts Division, Department of Rare Books and Special Collections, Princeton University Library. Brunkhorst, Hauke; Wolfgang Köhler; and Matthias Lutz-Bachmann, eds. ��. Recht auf Menschenrechte. Frankfurt: Suhrkamp Verlag. Fichte, J. G. ��. Foundations of the Natural Right According to the Principles of the “Wissenschafstlehre,” trans. Michael Baur, ed. Frederick Neuhouser Cambridge: Cambridge University Press. Gosepath, Stefan; and Georg Lohmann, eds. ��. Philosophie der Menschenrechte. Frankfurt: Suhrkamp Verlag. Hegel, G. W. F. ��. Elements of the Philosophy of Right , ed. Allen Wood. Cambridge: Cambridge University Press. Jellinek, Georg. ��. The Declaration of the Rights of Man and of the Citizen. New York: Henry Holt. Joas, Hans. ��. The Sacredness of the Person: A New Genealogy of Human Rights . Washington, DC: Georgetown University Press. Laertius, Diogenes. ��. Lives of Eminent Philosophers , ed. R. D. Hicks. Cambridge, MA: Harvard University Press. Vol. �, �-��. http://data.perseus.org/citations/urn:cts:greekLit:tlg��. tlg��.perseus-eng�:�.� (accessed March �, ��). Lang, Bernard. ��. Jesus der Hund, Leben und Lehre eines jüdischen Kynikers . München: C. H. Beck Verlag. Marx, Karl. ��. On the Jewish Question. In The Marx-Engels Reader , ed. Robert C. Tucker, ��– ��. New York: W. W. Norton. Matthew. ��. The Gospel According to St. Matthew. In The Holy Bible: King James Version, ed. Benjamin Blaney. New York: Oxford Edition. www.academic-bible.com/en/online-bibles/ king-james-version/read-the-bible-text/bibel/text/lesen/stelle/��/��/��/ch/. ��c��cefb��b��b�aa�c��e�b/ (accessed March �, ��). Menke, Christoph. ��. The “Aporias of Human Rights” and the “One Human Right”: Regarding the Coherence of Hannah Arendt’s Argument, trans. Birgit Kaiser and Kathrin Thiele. In “Hannah Arendt’s Centenary: Political and Philosophical Perspectives,” part �, Social Research ��, no. �: ��–��. Paul. Letter to Romans. ��. In The Holy Bible: King James Version, ed. Benjamin Blaney. New York: Oxford Edition, ��. www.academic-bible.com/en/online-bibles/king-james-version/ read-the-bible-text/bibel/text/lesen/stelle/��///ch/d�ddd�d�a�bf��c��aa�df��b��/ (accessed March�, ��).


Hamacher. on the Right to Have Rights. Human Rights, Marx and Arendt

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