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< | The Potential Contingency of Inherent Rights: How Arendt and Nietzsche Describe Community, Law, and Human Rights | >
> | Hannah Arendt, Roberto Unger, and A Lawyer’s Philosophic Theory of Action | | | -- By JustineHong - 11 Mar 2022 | |
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< | Introduction
Hannah Arendt's Origins of Totalitarianism and Robert Unger's Law in Modern Society trace the deprivation of morality from law throughout history. First, Arendt demonstrates that the ideal of “human rights” has become meaningless for stateless people who have no nation which recognizes their rights. Similarly, Unger argues that a key characteristic of modern liberal society is the “estrangement of ideals from actuality,” in which the pursuit of self-interest becomes estranged from the pursuit of the good, resulting in arbitrariness in daily life and universal “despair.” While neither philosopher presents a solution, both emphasize the need to avoid modern loneliness and isolation and instead reach a collective moral consensus (Arendt 478; Unger 239-40). | >
> | Introduction
Hannah Arendt’s Origins of Totalitarianism and Roberto Unger’s Law in Modern Society provide different philosophic bases for developing a lawyer’s theory of social action. Arendt, by underscoring that fundamental rights, far from being “natural” or “innate,” must instead be recognized by a community to exist, calls on lawyers to provide representation to stateless people. On the other hand, Unger presents a historical progression among liberal societies in which morality becomes estranged from the rule of law, resulting in the widespread sense that societal inequality is arbitrary and unjustified. His work thus calls on lawyers to address unjust societal inequalities by expanding access to intellectual capital. Ultimately, however, the works of both Arendt and Unger urge lawyers to look beyond legal doctrine and toward the social interests and public policy which shape law in contemporary society. | | | | |
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< | Arendt: Contingency and the "Right to Have Rights"
Arendt states, “We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community” (296-7). To explain this “right to have rights,” Arendt connects human rights with the ability to have opinions and actions that matter in society: “The fundamental deprivation of human rights is manifested . . . in the deprivation of a place in the world which makes opinions significant and actions effective” (296). In other words, when people become deprived of a community in which their opinions and actions matter, they become deprived of their human rights. Moreover, these rights, namely the “right to action” and the “right to opinion” (296), are “more fundamental than freedom and justice, which are rights of citizens” (296). Indeed, without these fundamental rights, the rights of citizens become insignificant: “Their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow” (296). In sum, Arendt argues that people must have the right to action and the right to opinion, which are human rights but must be acknowledged by a community in order to be effective. | >
> | Arendt: The Need for State Recognition of Fundamental Rights
A central argument of Origins of Totalitarianism is that human rights, far from being “natural” or “inalienable,” require state recognition in order to exist. In particular, Arendt states: “The calamity of the rightless . . . is not that they are not equal before the law, but that no law exists for them . . . We become aware of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions)” (Arendt 295-7). In other words, unless a person belongs in a community like a state, he or she cannot not have “fundamental” rights like life, liberty, or equal protection before the law. State or community recognition is necessary for fundamental rights to exist. The text thus corresponds to the legal realist trend emerging at the time that law derives from social interests and public policy, rather than from “natural law” (Cohen, Transcendental Nonsense and the Functional Approach).
In terms of its relevance to a lawyer’s theory of social action, Origins of Totalitarianism forces lawyers to think beyond black-letter doctrine and seek to ensure that people outside state recognition have the legal representation they need. Thus, a lawyer’s theory of social action may extend even beyond the law itself. Such social action contrasts with that of a lawyer like Robinson from Joseph’s Lawyerland. Robinson represents criminals, who are considered to be most deprived of rights in society. But Arendt indicates that even criminals, unlike stateless people, are still recognized by the state. “[Stateless people’s] freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course” (Arendt 296). Today, refugee crises remain common, a particular example being the current situation in Europe where Roma refugees are forced to camp at train stations throughout Europe because they, unlike other Ukrainians, have been denied visas. Lawyers should assist refugees who want to be recognized by the law so they can exercise their fundamental rights like the right to a home and the right to work. | | | | |
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< | Nietzsche: Ruling Power and the Sovereign Conscience
Like Arendt, Nietzsche underscores the role of the community in determining the deprivation of rights. He states that the ruling institution determines justice: “‘Just’ and ‘unjust’ exist, accordingly, only after the institution of the law . . . To speak of just or unjust in itself is quite senseless” (Nietzsche 512). This passage indicates that the significance of one’s actions depends on other people. Rather than human rights, however, Nietzsche considers justice as determined by the law, which is then determined by the ruling power: “The most decisive act . . . that the supreme power performs . . . is the institution of law” (512). Here, therefore, Nietzsche agrees with Arendt’s idea that the community defines normative values and determines the significance of one’s actions. | | | | |
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< | Moreover, Nietzsche agrees with Arendt’s notion that the law does not apply equally for all: “Legal conditions can never be other than exceptional conditions, since they constitute a partial restriction of the will of life, which is bent upon power” (512). One could apply this general statement to Arendt’s case. “Legal conditions” would apply to citizens, who have human rights as well as citizens’ rights. However, these conditions are exceptional because they do not apply to stateless people. Nietzsche would argue that this situation arises because the ruling power has a “will of life, which is bent upon power,” and thus seeks to retain power for its own nation and citizens while excluding others. Hence, while Nietzsche would agree with Arendt that the law does not apply universally, he also suggests that the limits of the law result from people’s desire for power. | >
> | Unger: Modern Estrangement of Morality from the Rule of Law
Like Arendt, Unger represents the legal realist trend in emphasizing the estrangement of morality from law and from the modern social order, but his theory presents a different philosophic basis from which to develop a lawyer’s theory of social action. Unger argues that the historical trend in which the rule of law becomes devoid of moral justification results in a widespread modern perception that societal inequality is arbitrary and unjustified. Additionally, in modern liberal societies, people tend to view social consensus as a product of the interests of dominant groups (Unger 169). Therefore, Unger emphasizes that in order to defeat inequality, society must foster greater confidence among people as “expressions of a shared human nature” (240). One way to achieve this greater confidence is to restore a kind of universal consensus about social life, where social practices represent an “immanent order” rather than arbitrary choices (240). | | | | |
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< | Finally, though Nietzsche affirms Arendt regarding the community’s influence and the law’s limits, he would argue that individuals have rights in themselves, regardless of the surrounding community: “The sovereign individual . . . liberated again from morality of custom, autonomous and supramoral . . . the man who has . . . the right to make promises . . . The proud awareness of the extraordinary privilege of responsibility . . . has . . . become . . . his conscience” (495-6). In tracing the origin of the conscience, Nietzsche argues that humanity developed the sovereign individual, who is independent of society’s morals and has a “right to make promises,” that is, the right to promise something for the future (494). This promise then becomes a responsibility, which becomes the conscience. By calling the ability to make promises a right and indicating that the individuals who possess this right are free from society’s constraints, Nietzsche logically implies that certain rights exist regardless of the surrounding community. The right to make promises is a faculty humanity has acquired and developed throughout history. However, Nietzsche’s argument may be unpersuasive in light of Arendt’s idea that any right is meaningless in practice if no one else acknowledges it. | | | | |
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> | The Knowledge Economy as a Solution to Unjust Inequalities
Another solution, presented in Unger’s more recent work The Knowledge Economy, is to address the inequality itself by expanding the knowledge economy. Unger argues that the knowledge economy is the most innovative way to organize economic activity, but it remains trapped in small segments of society. On the one hand, the knowledge economy represents a freedom from hierarchy because successful knowledge production requires collaboration, autonomy, and open exchange of ideas. It also involves a freedom from machine-like routine embodied by industrial mass production, instead operating on creativity and spontaneity. Expanding the knowledge economy “would require a reorganization of how capital and other means of production are allocated [such as alternative organizational forms to the standard corporation]; more collaborative relations of workers to colleagues and superiors; and education reform” (FT).
A lawyer’s theory of social action would correspond to such concrete measures articulated by Unger. Having the propositions from Law in Modern Society as its philosophic basis, the theory of social action could implement governmental advocacy, workers’ rights, labor law, pro bono campaigns, and an expansion of access to legal counsel. Such legal measures could help expand the knowledge economy and address the widespread sense of arbitrariness and injustice in modern society. | | | | |
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< | Conclusion | | | | |
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< | Both Arendt and Nietzsche consider the influence of the community and the law on the individual, as well as the question of human rights. In presenting the notion of a “right to have rights,” Arendt emphasizes that the community determines the enforcement of human rights. Nietzsche places a similar emphasis on the community by arguing that power determines justice and can limit the scope of the law to retain or enhance its power. However, Nietzsche may dispute Arendt’s claim that the community determines one’s rights; he argues that the sovereign individual has a right independent of society, namely the right to make promises. But Nietzsche’s argument may not hold in light of Arendt’s claim that ‘inherent’ rights are meaningless if they are unenforceable. Still, rather than weakening Nietzsche’s argument, this contrast highlights a nuance of Arendt’s central claim and demonstrates the value of considering political theorists with different aims. Arendt does not dispute the objective existence of human rights; rather, she calls for a greater acknowledgment of them, as well as the actions and opinions of stateless people, so nations can manifest in practice rights which philosophers like Nietzsche affirm in theory. | >
> | Conclusion
Arendt and Unger present alternative philosophic bases for a lawyer’s theory of social action. Arendt’s argument that human rights are meaningless without the recognition of a state underscores to the plight of stateless people who lack the basic legal status even accorded to criminals. Unger’s argument, on the other hand, highlights the estrangement of morality from the rule of law and the consequent arbitrariness pervading modern society. His framework draws attention to the need for a universal consensus or for a solution to unjust inequalities, such as the knowledge economy. Although both theorists are primarily concerned with philosophy rather than social science, because of their legal realism, their theories still provide a critical foundation upon which to construct a theory of social action. | | | | |
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(997 words)
| | | Works Cited
Arendt, Hannah. The Origins of Totalitarianism. Houghton Mifflin Harcourt, 2011. | |
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< | Nietzsche, Friedrich. Basic Writings of Nietzsche. Translated by Walter Kaufmann, Modern Library, 2000. | >
> | Unger, Roberto Mangabeira. Law in Modern Society: Toward a Criticism of Social Theory. The Free Press, 1977. | | |
Displaced from its original context, this draft doesn't give the reader a reason to read. Substantively, the text amounts to "Nietzsche and Arendt agree on something abstract and not particularly striking." The reader has not been shown why she should care. Stylistically, the book-report language adds to th problem; it conveys no feeling, which means no motivation for a reader to engage. We don't want to read like a tour guide for undergraduates being frog-marched through material. |
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