IN 1949, IMMEDIATELY AFTER THE GENERAL ASSEMBLY OF THE NEWLY founded United Nations had adopted the Universal Declaration of Human Rights in December 1948, Hannah Arendt published--first in English and rapidly afterwards in German--a short text that was nothing less than a scathing critique of the recent attempts to reanimate the idea of human rights as political foundation (Arendt, 1949b). (1) Arendt pointed to the declaration's complete conceptual confusion, which would "invariably [lead] to philosophically absurd and politically unrealistic claims such as that each man is born with the inalienable right to unemployment insurance or an old age pension" (Arendt, 1949b: 34). This confusion corresponds to a conspicuous "lack of reality" (Arendt, 1949b: 37) that, for Arendt, the thinker of political judgment, of the political as practice of judgment and of judgment as political, was arguably one of the gravest objections to be raised against a political action.
What she objected to in her critique is the fact that recent attempts to reformulate human rights merely repeat, in spirit and in attitude, the traditional declarations formulated at the end of the eighteenth century without accounting for the profound crisis that has befallen the idea of human rights since those rights failed in the face of totalitarian politics. We do not know if Hannah Arendt had the final version of the Universal Declaration of Human Rights at hand when writing her text. (2) However, given the even sharper repetition of her critical diagnosis in the famous ninth chapter of The Origins of Totalitarianism, which was published two years after the essay, we have no indication that Arendt would have been convinced the declaration was an adequate response to the totalitarian challenge of human rights, despite the fact that the preamble proclaimed it to be an expression of the "outrage" of the "conscience of mankind" in view of the "barbarous acts" committed by totalitarianism. In fact, Arendt rephrases her critique in such a way that an adequate response to the totalitarian challenge to human rights seemed to be by and large impossible as such--at least a response that would be given in the name of human rights. It is in her book on totalitarianism that Arendt formulates the "aporias of the Rights of Man" (3) as a way of describing the confusing situation into which totalitarian politics brought human rights--not only the possibility of practically realizing human rights but the very idea of human rights itself is called into question. An aporia, however, is a situation with no solution.
At first glance, there seems to be surprising agreement, even among authors who work with Arendt from very different angles, as to how we must understand her diagnosis of a crisis of human rights deepened to the point of an aporia. Giorgio Agamben concludes from this diagnosis that we have to abandon "decidedly, without reservation, the fundamental concepts through which we have so far represented the subjects of the political (Man, the Citizen and his rights [...])" (Agamben, 2000: 16). Jean Cohen draws the opposite conclusion: she holds that in order to save the idea of human rights we need to counter the "disdain for universalistic argumentation" expressed in Arendt's critique of the declaration of human rights, and reconstruct a "moral principle (i.e., a universal principle of justice)" (Cohen, 1996: 183). (4) Just like Agamben, Cohen reads Arendt's diagnosis of a crisis or even the aporia of the idea of human rights as exhibiting their untenability. However, instead of surpassing Arendt like Agamben, she criticizes her for this diagnosis.
The title of Arendt's essay in English asks the skeptical question: "'The Rights of Man': What Are They?" This, however, is not the title she chose for the German version of the text published a little later. Instead of the ambivalent question that we find in the English version, the German version is entitled with the assertive statement Es gibt nut ein einziges Menschenrecht: "There Is Only One Human Right"--a statement that could almost be called defiant in view of the original title. The following reading seeks to show that this unexpected retitling does not merely have strategic reasons, as might be suggested both by the time and place of publication and by the choice of the medium (that is Jaspers' and Sternberger's), but that there rather exists a connection between the two titles in terms of the matter at stake. We need to show, as much against Agamben as against Cohen, that Arendt's critical exhibition of the aporias of human rights is 1) to be understood as internally linked to an alternative understanding of the idea of a human right--an understanding of the idea of human rights, however, whose premises 2) do not depend upon the traditions of the modern natural law or liberalism, but put into question the essential, basic presuppositions of these traditions.
I.
The main objection Hannah Arendt raises against the Universal Declaration of Human Rights (that is, against its preliminary versions) concerns its rather conspicuous "lack of reality" (Arendt, 1949b: 37). This objection is startling. What can it mean of this type of text, of a declaration of rights--a declaration des droits or a bill of rights--to lack reality or to lack realism? Does such a declaration not rather state the way things ought to be, not the way they really are? However, even an "ought" proposition must conform to reality insofar as it must be realizable: it must contain a normative demand that can be fulfilled by real actions. Arendt's objection to the declarations of human rights, claiming that they exhibit a conspicuous lack of reality, attests to just this: they are of the order of an "ought," to which no "can" corresponds: no capacity for action or realization.
This objection against human rights takes up the famous "English" critique of their French declaration in 1789, which was first formulated by Edmund Burke and shortly afterward by Jeremy Bentham: the critique that human rights are "an abstraction" (Arendt, 1949b: 31). In order to understand both the "English" critique of human rights and the reasons for which Arendt takes it up for her own argument, it is important to emphasize how it differs from the widespread "German" variant of a critique of human rights. According to this "German" version, people are "overburdened" by the demands of human rights. We have a motivational problem when what "ought" to be is not willed, allegedly because every will would require other, more "sensual" drives, which are thought to be structurally incommensurable with what "ought" to be in terms of human rights. (5) When Edmund Burke calls the declaration of human rights "monstrous" and "tragicomic," or when Jeremy Bentham calls it "nonsense upon stilts" (Burke, 1987: 9; Bentham, 1843: 523), (6) they mean that human rights are normative demands that abstract from the conditions and forms of the very action by means of which they could be realized. Such action is political action, or to be more precise: it is the act(ion) of legislation. Someone only has a right because he or she has acquired it by means of someone else's promise, or by means of a contract with someone else, or, if it is to be a generally acknowledged right, because he or she has been endowed with it by means of a law: "rights," according to Bentham, can only exist due to legislation. Laws, however, are always only passed for particular political entities, that is, according to our modern understanding, for particular nationstates. Thus, rights "as such" do not exist, because laws "as such" do not exist. For Arendt, this double insight--first that all rights depend upon laws, and second that all political legislation is inescapably tied to a certain "locale"--is the true essence of Burke's famous statement that he preferred "the rights of an Englishman" over those of the human being: "According to Burke, the rights which we enjoy spring 'from within the nation,' so that neither natural law, nor divine command, nor any concept of mankind, such as Robespierre's 'human race, the sovereign of the earth,' are needed as a source of law" (Arendt, 1949b: 31). There are no other rights than those of "an Englishman," which stem "from within the [English] nation" by way of legislation; the "rights of human beings," thus, do not exist.
Arendt reminds us of this English critique of the (French) declaration of human rights in order to interpret in its light the epochal experience that the "decline of the nation state" in the first half of the twentieth century meant nothing less than the "end of the rights of man." "The decline of the nation state" does not so much refer to a loss of national power of regulation, but instead to the initial erosion, and later complete shattering, of the principle that all inhabitants of a territory are also citizens of the state that legislates over this territory (because they are all members of the same people or the same nation). This began to show in (predominantly European) politics vis-a-vis minorities, the Jewish people and refugees: "The loss of national rights," taking the form of discrimination, expulsion, and expatriation, "in all instances entailed the loss of human rights" (Arendt, 1949b: 31). What were called the rights of "human beings" were in fact the respective rights of citizens, and the former were lost along with the latter.
For Arendt, the central experience of the twentieth century is this crisis point: that whoever ceases to count as the citizen of a particular state loses not only his or her civil rights in that particular state, but paradoxically also loses his or her human rights: "The conception of human rights broke down at the very moment when those who professed to believe in it were for the first time confronted with people who indeed had lost all other qualities and specific relationships, except that they where still human. The world found nothing sacred in the abstract nakedness of being human" (Arendt, 1949b: 31). It broke down because the "world" understood human rights in the tradition of the French Revolution--that is, in the sense that they can only come into existence through nation states, and therefore only for their respective members. If, however, the nation state is the only juridical authority that can effectively acknowledge and realize human rights, then the discourse of human rights loses its significance for all those who, as a result of expatriation and emigration, cease to belong to any nation state.
The idea of a new, explicitly universal declaration of human rights was decisively propelled by the recognition of this crisis that had been reached with the concept of human rights based on nation states. The consequence was the suggestion to understand human rights altogether differently: namely, to understand them as existing independent of national membership. Human rights are then seen as pre-national, as "natural" or "moral" rights that accordingly need to be realized by supranational or global means. Michael Ignatieff, for example, believes that the consequence of the crisis of human rights can only be the "return by the European tradition to its natural law heritage" (Ignatieff, 2001: 4). (7) The lesson, however, that Hannah Arendt draws from the crisis of human rights is exactly the opposite. The (proto-)totalitarian politics of discrimination, expulsion, and expatriation, she writes, "had the effect of confronting the nations of the world with an inescapable and perplexing question: Whether or not there really exist such 'human rights,' independent of all specific political status and deriving solely from the fact of being human" (Arendt, 1949b: 25). By way of their conduct, the nations of the world have given a clear, and clearly negative, answer to this question. For them, such natural rights of human beings did not exist. Yet according to Arendt, this negative answer is not the betrayal of but rather the truth about human rights. In the eyes of the nations, the expulsed and the expatriated had no human rights, because, as Arendt argues, their human rights do indeed not exist.
Arendt elucidates this thesis by closely looking at what the declarations of human rights really list. She shows that all the rights included--and they are many and "of the most heterogeneous nature and origin" (Arendt, 1949b: 37)--are rights not of the human being, but of individuals who are already members of a political entity. They are only "so-called Rights of Man" (Arendt, 1949b: 30), and in truth nothing but "formulas which were designed to solve problems within given communities" (Arendt, 1949b: 28). If it is true that human rights are originally and essentially rights to freedom, as per Georg Jellinek's famous thesis that the history of human rights begins with the freedom of religion, (8) then the purpose of those declared rights is actually to designate which claims each member of a community can justifiably raise against that community. The so-called declarations of human rights are therefore not concerned with rights with which each individual human being, merely as a human being, is endowed. He or she does not in fact have any rights, because people outside of or without any political community cannot be the bearers of rights. Only the members of a political community can be bearers of rights. Any declaration of human rights, therefore, implicitly presupposes that human beings are already members of a community. The category of "right" refers to just this: how people (ought to) live together. What are called "human rights" are in fact political principles of law. The title question of Arendt's English text, "'The Rights of Man': What Are They?" thereby receives its first answer: the "so-called Rights of Man" are a distorting articulation of the rights of each member of a political community; of rights, thus, that also pertain only to each member of a political community.
From the angle of this fundamental argument we can also understand Arendt's subsequent sharpening of her critique of the declarations of human rights, which she condenses to the formula of the "aporias of human rights." She develops the thesis that to articulate political principles of law in the form of "so-called human rights" is not only distorting, but in its consequences also proves destructive for these very principles of law themselves. The declarations of human rights, Arendt contends with reference to the French declaration, "were meant to spell out primary positive rights, inherent in man's nature, as distinguished from his political status, and as such they tried indeed to reduce politics to nature" (Arendt, 1967: 104). However, by way of naturalization, which is meant to put these rights upon a palpable basis, the declaration of human rights undermines the very foundation of any juridical political community: the idea of equality. For "[w]e 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, 1949b: 33). (9) Equality is not an attribute of people as individual natural beings, but an attribute of political members, and therefore the very reference to the natural human being destroys every claim to equal rights.
In this lies an explanation for the powerlessness of human rights in the face of the totalitarian politics of exclusion and murder of minorities. Not only were the Jewish people and refugees forced to "live outside the common world," "thrown back on their natural givenness, on their mere differentiation" (Arendt, 1949b: 33)--they were also transformed by totalitarian politics into precisely those naked natural human beings to whom human rights were meant to refer. By being merely natural they were no longer potential bearers of rights because they were no longer equals. This situation remained relatively harmless for as long as--almost (10)--all human beings were community members in one way or another, but it gained terrible significance at the point when there appeared masses of nonmembers. The declarations of human rights were patently unable to counter the overwhelming power of the appearance of the natural human being as essentially nonequal.
For this reason, the declaration of human rights is an aporetic endeavor, demanding equal rights for something essentially nonequal: human beings as natural beings. There are only equal rights for political members, which are thus not human rights. And there are only different needs or claims of human beings as natural beings, and these are thus not human rights. The idea of human rights is a contradiction in terms.
II.
In this early essay Arendt is already pointing to a distinction that she will later bring into central focus in the distinction between a declaration des droits de l'homme and a bill of rights. Their difference is least of all one of content because both types of declarations can list the same rights. They differ fundamentally, however, in their understanding of what a "right" is:
The American version proclaims no more than the necessity of
civilized government for all mankind; the French version, however,
proclaims the existence of rights independent of and outside the
body politic, and then goes on to equate these so-called rights,
namely the rights of man qua man, with the rights of citizens
(Arendt, 1967: 147).
In the first sense, rights are a political construct while, in the second sense, they are a pre-political attribute. Only the first understanding of equal rights is tenable. The latter is, on the contrary, untenable--in the best case being itself powerless, in the worst case surrendering to a superior power. While a bill of rights always only applies to a specific and delimited political community, a declaration des droits de l'homme on the contrary stakes a universal claim of the rights of everyone by referring to human beings outside of existing communities, that is to the human being as "natural" being. (11) This is the claim Arendt has in mind when she writes of "recent attempts to frame a new bill of human rights" that these attempts showed "that no one seems able to define with any assurance what these human rights, as distinguished from the rights of citizens, really are" (Arendt, 1949b: 26). The objection notes that the declarations of "human rights," contrary to what they claim, do not contain the rights of human beings; in fact, they also only contain the rights of citizens, of the members of a community. Thus, the declarations of human rights claim a distinction between the rights of members and the rights of each human being which they do indeed not draw.
Arendt's critique up to this point seems to suggest that the distinction does not even exist; that it makes no sense to speak of a right that is not endowed by the legislation of a community. Arendt, however, draws exactly the opposite conclusion from her objection: while traditional declarations merely claim to deal with the rights of human beings as separate from the rights of members or citizens, they cannot maintain this distinction and in fact to do this is of utmost urgency. The failure of "recent attempts to frame a new bill of human rights" to see this urgency even as they continue to claim only the rights of members is indeed their most profound and worst "lack of reality." By always already presupposing and continuing to presuppose political membership, and by only articulating the rights of those who are already members, these recent attempts remain ignorant to the profoundly disturbing challenge posed by those many who are not members and who are growing in number: the expatriated, the refugees, and the stateless persons who neither have nor can find a community. They are the ones who really need rights. But what they need does not appear in the declarations of the "so-called Rights of Man."
Arendt's famous expression for what these nonmembers need is the, or a "right to have rights" (Arendt, 1949b: 30). The rights to which nonmembers must have a right are those of the members of a political community--that is, the various definitions of the differently understood right(s) to equality. The right to have these rights, however, cannot be of the same order: it is not the right of members, but the right to membership: "a right to belong to some kind of organized community" (Arendt, 1949b: 30).
We know even better than Burke that all rights materialize only
within a given political community, that they depend on our fellow
citizens, and on a tacit guarantee that the members of a community
give to each other. But we also know that apart from all so-called
human rights, which change according to historical and other
circumstances, there does exist one right that does not spring
"from within the nation" and which needs more than national
guarantees: it is the right of every human being to membership in a
political community. (Arendt, 1949b: 34)
According to Arendt, this "right to have rights" is, as distinct from the "so-called Rights of Man," indeed the ("only") human right, "the one right without which no other can materialize" (Arendt, 1949b: 37). In her critique of the declarations of human rights, Arendt had said that human rights (in the plural) do not exist. The thesis that there is only one human right (in the singular) does not contradict this critique, but rather corresponds to it. "Critique" here does not imply a rejection, but rather a distinction: the distinction between appearance and reality; between what is called "human rights" but in fact refers to the rights of the members of a political community, and what really is a human right. Only a right that does not already presuppose the status of membership in a political community, but has this very status as its object, is a real human right.
Unfortunately, the introduction of the concept of a human right to membership suffers from a decisive weakness. Arendt shows convincingly that the postulate of a human right to have rights is irrefutable if we no longer--as according to her judgment the "recent attempts to frame a new bill of human rights" still do--blink at the new challenges resulting from totalitarian politics. At the same time, however, Arendt's analysis of the aporias of human rights has obfuscated whether and how we could not only postulate but also conceptualize such "one human right." Just like any other human right, this one also aims "to transcend" (Arendt, 1949b: 37) the levels of the respective regional or particular communities. Classical declarations of human rights had undertaken this step beyond politics as a step back into nature; Arendt criticized this as resulting in the fatal dissolution of the very equality that was to be founded upon it, since nature knows no equality. She concludes that "it would be a serious error to define this one right [to have rights], which was never even mentioned among the Rights of Man in the categorical framework of the eighteenth century," since "[o]ne of the reasons that the whole issue has become so confused today is that human rights are still viewed within these categories" (Arendt, 1949b: 34). Only a mode of thinking that radically breaks with the categories of the eighteenth century can point a way out of the contemporary confusion.
Toward the end of her text, Arendt describes one way to avoid this confusion and, thereby, escape the aporias of human rights. (12) Although seemingly confirmed by the factual development of international law in the decades since the writing of Arendt's essay, her suggestion does not, in the end, succeed in resolving the philosophical question that is posed by the "right to have rights." Her solution to the aporias of human rights consists in conceptually treating the one human right to have rights structurally like the (membership) rights within a political community. According to this reading, the human right to have rights belongs to the "sphere of a law that is above the nations"--that is, to a new international law that no longer only regulates "the intercourse of sovereign nations" (Arendt, 1949b: 36), as was still the case for the one contemporaneous with Arendt's essay. Such a new international law would stipulate the "crimes against humanity" (Arendt, 1949b: 36f.) as one of its paragraphs, if not as its central one. Like any other law, this new international law could be traced to an act of legislation, but an act of legislation by a new legislator:
This human right, like all other rights, can exist only through
mutual agreement and guarantee. Transcending the rights of the
citizen--being the right of men to citizenship--this right is the
only one that can and can only be guaranteed by the comity of
nations (Arendt, 1949b: 37).
This "comity of nations" is based upon a historical development: the "emergence of mankind as political entity" (Arendt, 1949b: 36). This, then, is Arendt's way out of the aporia of human rights: her proposition for an understanding of the concept of human rights that makes no reference to the natural state of the human being. The human right to have rights is the fundamental right brought forth by a legally binding--through "mutual agreement and guarantee"--international law that constitutes mankind as a "political entity."
The advantage of this understanding is that it dissolves the old problem of how we could have a law that cannot be traced back to acts of legislation, the problem that was named so sharply by the "English" critique of human rights. Simply put, the human right to have rights is conceptually of the very same order as all other rights. The right to be a member of a regionally delimited political community and to have rights within that community is in itself a right that pertains to us, to each individual human being, as members of an eventually universal and (quasi-) political community: the "political entity" of "mankind." The disadvantage of this understanding is that it simply turns back the substitution of a "historical" law by a "natural" law, which the traditional declarations of human rights had undertaken (see Arendt, 1949b: 34f.). The one human right is traced back to the historical fact of a political entity of mankind. Thereby, however, not only does the question of whether this political entity of humanity already exists become unanswerable, so does the question of whether it can or even should exist. (13)
And still further: Hannah Arendt's linking of the human right to have rights within a political community to an act of legislation of the political "entity" of "mankind" contradicts her own insight that it was precisely the historical development of such an entity that dramatically aggravated the situation of the excluded and stateless, a situation which these human rights were meant to counteract.
The calamity [sc. that "millions of people [...] had lost and could
not regain these rights because of the new global situation"] did
not arise out of lack of civilization, backwardness or mere
tyranny, but, on the contrary, 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
in a completely organized humanity could the loss of home and
political status become identical with being expelled from humanity
altogether (Arendt, 1949b: 30).
This argument--reminiscent of Carl Schmitt (which does not necessarily make it wrong)--stresses the fact that we have no guarantee whatsoever that a politically constituted humanity would not also commit the same acts of expatriation that are committed today by regionally limited political communities. If there is to be an inalienable right of each human being to membership, and thus to rights, it cannot merely be defined as resulting from the largely unspecified act of legislation of a politically constituted humanity; it is a right to be introduced and enforced by this act of legislation. Thus the alleged way out of the aporias of human rights offered by the new international law runs up against the very same problem that had led into the aporias.
With this result, another thought in Arendt's essay gains in importance: the way in which she discusses the concepts of "human being" and "mankind" in a manner different from the two versions debated before. Here, these concepts designate neither a natural state (which does not offer any guarantee against the exclusion of people from the political community, because it does not offer equality), nor as a historically developed political entity (which fails to offer a guarantee against the exclusion of people from the political community, but rather increases the danger of an "expulsion from humanity"). Arendt provides this hint at a third possibility to understand the concept of human being by calling upon, albeit only in passing, a concept whose surprising career as a fundamental politico-legal category only began at the time when Arendt was writing this text: the concept of "human dignity" (Arendt, 1949b: 30). Arendt introduces this concept in order to denominate once more in yet another manner what lies prior to "all so-called Rights of Man": "Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity" (Arendt, 1949b: 30). According to this use of the term, the dignity of man consists in having rights as a member of a political community. (14)
The final paragraph of the essay, in which Arendt mentions the two solutions to the aporias of human rights, begins by programmatically stating that "[t]he concept of human rights can become meaningful again if it is redefined in light of present experiences and circumstances" (Arendt, 1949b: 34). For a redefinition of the concept of human rights "in light of present experiences and circumstances" we need not only to find an answer to the situation of the expatriated, the stateless, and the refugees; an answer that requires considering the rights of members along with the right to membership. It is also essential for such a redefinition of the concept of human rights to avoid any relapse into the categories of the eighteenth century, that is, into the categories of "natural" rights, which, according to Arendt, the Universal Declaration of Human Rights fails to do. Arendt's reference to the concept of human dignity is meant to provide precisely this. (15) The concept of human dignity, understood in this way, does not continue the naturalization of human rights, but breaks with it--without, however, positivistically or historically equating human rights with the regulations of a new, postnational, international law.
In concluding, I would like to point out two argumentative moves that are fundamental for such an understanding of the concept of human dignity.
First: modern natural law founded rights upon properties with which human beings are endowed with by nature: they are created by God, or they carry capacities distinctive of their species, such as reason or pity. Fundamental claims that every human being can lodge, such as the claim to property, physical inviolability, freedom of religion draw their justification and their force to oblige others from this. From these legitimate claims, which pertain to every human being as human being, subsequently follow claims that every human being can raise vis-a-vis others in the "social" sphere. Entirely different from this is Arendt's definition of human dignity: (16) with reference to Aristotle, she defines the dignity of human beings by virtue of their being speaking beings, and that means for Arendt by virtue of their being political beings. Human dignity is then no natural property, which human beings are endowed with individually, and which subsequently would have social consequences, but it consists in nothing other than their politico-linguistic existence: their speaking, judging, and acting as capacities that they essentially have through, with, and vis-a-vis others.
If, according to Arendt, the politico-linguistic existence of human beings is the content of their dignity, this also means to attribute to this form of existence a distinguished status: it is not just any, but the human form of life. Their politico-linguistic existence is the human disposition: "a general characteristic of the human condition" (Arendt, 1949b: 30). In a first move, therefore, Arendt's concept of human dignity introduces a concept of human nature that does not refer to the natural human being. For Arendt, human beings are not endowed with dignity when viewed as natural in distinction or even in opposition to their politico-linguistic existence. Rather, human dignity consists in the politico-linguistic human existence, because human beings are politico-linguistic "by nature": destined to develop a politico-linguistic existence. Each human being's right to membership in a political community is therefore based upon the experience of the significance of the politico-linguistic existence for human beings--namely, to be that form of their existence which is the proper human condition. Or, to put this the other way around: it means that each human being's right to membership in a political community cannot be based upon attributes, which are independent from the human politico-linguistic existence (and could in this sense be called "natural"). The foundation for each human being's right to membership in a political community cannot be found outside of or below his or her existence within such a community, but rather in the experience of the significance of this political existence, an experience that can only be made from inside the political existence. (17)
Second, Arendt no longer refers to the nature of human beings in the sense of a pre-political attribute. By referring to it as the human disposition to being political, she distances herself from the normative design of modern natural law. Modern natural law traces juridical rights back to natural rights. Both have the same form: they are subjective rights, claims by means of which a subject can oblige others. The classical case for this is property: a possession is turned into property if it is possible to oblige others to refrain from using the respective object by uttering the words "this is mine" (or through an equivalent symbolical act). In the juridical sphere, subjective rights are bestowed rights. "Natural" rights, on the contrary, are considered to be nonbestowed subjective rights: they are rights that function like legal rights (as the capacity to oblige others), but they are rights that one "possesses" in a sense naturally. We saw that Arendt shares the "English" critique, which holds that such nonbestowed subjective rights are "nonsense upon stilts" (Bentham). What follows from this is that the one human right, the "right to have rights," must either be also bestowed--this being the kernel of the formerly criticized solution to the aporias of human rights, namely their merging with international law--or that this one human right cannot be a subjective right, despite the impression given by its formulation.
But if that is the case, what kind of right is it supposed to be then? The concept of right can only be meant in an objective sense here: it does not define a claim, which human beings are entitled to raise, but it defines what is right for them. Understood in a subjective sense, the right to have rights implies that human beings can lodge a claim to membership, and are--by way of law, contract, or nature-entitled to do so. Understood in an objective sense, the right to have rights means, on the contrary, that it is right for human beings to be members of a political community, in which they, as members, have rights. The objective understanding of the right to have rights does, therefore, not dispute that human beings are legitimately entitled to--have the subjective right to--political membership. Very much to the contrary, the objective understanding of the right to have rights constitutes the subjective right to political membership, and thereby shows that what grounds subjective rights is not of the same structure as these rights themselves (such as modern natural law) had assumed. (18) The claim of each human being to political membership is instead the result of the conviction that political membership is the right thing for human beings, due to the experience that political membership is the (true) human condition.
III.
From the crisis that befell human rights after the totalitarian politics of exclusion, Arendt draws the consequence to understand human rights entirely differently from the traditional categories of "natural" rights. This naturalization of rights is an element of the crisis of human rights, if not perhaps even--following Agamben's radicalization of Arendt's critique--complicit with totalitarian politics. But in any case, it is no solution to the crisis of human rights. Arendt's concept of human dignity, on the other hand, does offer a solution--a solution, however, that presupposes, rather than contests, the insight into the aporias of human rights. It shows that we can only resolve the crisis of human rights if the thinking of human rights is transformed as a whole, with all its defining elements. The conceptual mind frame is defined, at least at the time of Arendt's intervention, by the fundamental convictions of modern natural law. The two moves Arendt makes (more or less implicitly) by pointing to the concept of human dignity show the direction that needs to be taken in order to think the "one human right" to have rights beyond the aporias of human rights. Human dignity as a concept only offers a way out of the crisis of human rights if, first, it introduces an entirely different anthropology than that of modern natural law, namely, an anthropology of a politico-linguistic form of life as opposed to an anthropology of quasi-natural human "needs" or "interests;" and if, second, the concept of human dignity introduces an entirely different fundamental concept of rights: a concept that grounds subjective rights in the experience of what is the right thing for human beings.
Translated from the German by Birgit Kaiser and Kathrin Thiele.
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NOTES
(1.) The German version was published in the same year in Karl Jaspers' and Dolf Sternberger's journal Die Wandlung.
(2.) Arendt speaks of a "Bill of Rights of the United Nations" and a footnote in the German version refers to the "drafts of the UN-Commission" (Arendt, 1949a: 769).
(3.) "The Aporias of the Rights of Man" ("Die Aporien der Menschenrechte") is the title of the last section of chapter 9 in the German version of Arendt (1955). The English title speaks of "The Perplexities of the Rights of Man" (Arendt, 1979: 290f.). To a large extent, this section repeats the essay of 1949, albeit not to the letter. A significant difference can be found in the essay's closing paragraph, which begins with the phrase "The concept of human fights can become meaningful again ..." that does not appear in The Origins of Totalitarianism; see paragraph II below.
(4.) A similar argument can be found in Benhabib (1996: 193ff).
(5.) It is in this sense that we might have to understand Arnold Gehlen's statement that "'mankind' is not a possible moral category for human beings" (Gehlen, 1986: 142).
(6.) On Burke see also Menke (2006a: 153-176).
(7.) For an opponent interpretation of the Universal Declaration of Human Rights, see the introduction to Menke and Pollmann (2007).
(8.) Jellinek's text and the controversial debate around it can be found in Schnur (1964).
(9.) "Equality [...] is not given to us" (Arendt, 1979: 301), "[n]either equality nor freedom [is] understood as a quality inherent to human nature" (Arendt, 1967: 23). Arendt's main argument against any naturalization in the realm of the political is that the idea of equality would thereby be abolished. For Agamben's rephrasing of Arendt's critique of naturalization this does not become important (see Agamben, 1998, part III, chaps 1 and 2). At the same time, however, Agamben's rephrasing very appropriately points to the presupposition in Arendt's argument that the traditional definition of human fights as "natural" fights is to be understood as referring to a pre- or extra-social condition, in which human beings appeared only in their natural and always differing capacities. We arrive at a different interpretation of the role that the concept of the "natural" plays in the context of classical declarations of human rights if a) we consider human fights according to their form, that is as being subjective fights, and b) we understand, with Niklas Luhmann, the "subject," that is, the bearer of such fights, as designating "the necessary opposite of functional systems," which "symbolizes human beings outside of systems with their claim to inclusion" (Luhmann, 1981: 98). For a corresponding interpretation of human fights, see also Luhmann (1993: 574f).
(10.) While slaves in certain respects were counted still as "a part of the human community" (Arendt, 1949b: 30), although Aristotle denied them reason, the "savages" of the imperial nineteennth century were the first "natural" human beings in respect to whom this problem could have arisen (Arendt, 1949b: 32)--had they been taken seriously as a challenge to the concept of human fights.
(11.) A bill of rights does not claim to declare the rights of each human being. It can, however, lodge a universal claim in other, more indirect ways. Different from Burke, who tied his "rights of an Englishman" to the presupposed quality of "being English," the American revolution, for example, understood the fights it declared for the newly founded United States of America as being valid for all other political communities. The preamble of the American Declaration of Independence refers to "the separate and equal station to which the Laws of Nature and of Nature's God entitle them" (that is, the American people). This is what founds the bill of fights, and this "station" equally pertains to all people (Arendt, 1967: 1f.). Although a bill of rights can thus always only determine the rights of the members of a community, these fights do not have to be the rights of members of this (particular) community, but can be those of the members of any community. According to Arendt, this is how the American revolution understands universality, as opposed to the French declaration of human rights: the former understands its rights as exemplary for all peoples. And in this sense, Albrecht Wellmer speaks in reference to Arendt's concept of revolution of a "universalism of a human possibility" (see Wellmer, 1999: 139).
(12.) If I am not mistaken, the solution to the aporias of human fights that Arendt hints at in this passage corresponds to the one that Hauke Brunkhorst suggests in opposition to Arendt: see Brunkhorst (1999: 93 ff; 2002: 191f.).
(13.) Arendt has stressed in various contexts that all political power has to be limited to territorial entities, and that all global delimitation of political power is to be rejected (see Birmingham, 2006: 135).
(14.) This is also how Christoph Enders, with recourse to Arendt, interprets the reference to human dignity in para. 1, sec. 1, sent. 1 of the German Grundgesetz (see Enders, 1977: 501f).
(15.) The concept of human dignity thus occupies a systematic place in Arendt, a place at which in Agamben we find--nothing. Although Agamben does not speak of a right of each human being to have rights, he still speaks of a "(refuge) of the singular" (Agamben, 2000: 24). It remains unanswered, however, if this is the object of a right and if so, how it could be accounted for.
(16.) Arendt gives this definition of "the fight to have rights" in the negative, describing the loss experienced by whomever loses this sole true human right:
Its loss entails the loss of the relevance of speech (and man,
since Aristotle, was defined as a being commanding the power of
speech and thought), and the loss of all human relationship (and
man, again since Aristotle, was called the "political animal," that
is, one who by definition lives in a community), the loss, in other
words, of some of the most essential characteristics of human life
(Arendt, 1949b: 30).
Chapter 4 of Arendt's The Human Condition establishes the link between language and politics. It is thus evident that her concept of dignity has nothing i