I once took a seminar course on Hannah Arendt… and I absolutely was not “there” for, basically, the entire semester. I didn’t do the readings, I didn’t participate in class discussion, and I certainly wasn’t paying attention to what anyone else said during any seminar. Funnily enough, Arendt is now an important thinker for me. I’m currently revisiting her major work, The Origins of Totalitarianism, that was taught in that seminar. My copy is pretty beat up, which makes it look like I’m an intellectual who has carefully read this long, tortuous book many times over – but really I just purposely bent the book every week before class so it wouldn’t be obvious that I hadn’t cracked it open. Go me.
So I didn’t take Arendt seriously then, but I do think she is worth taking seriously. I’m interested in the question of refugee rights, and Arendt has certainly made invaluable contributions to this area. I recently read Chapter 9 of her Origins book and it seemed to me full of highly relevant, interesting arguments. In this chapter, Arendt explores the complexities involved in our conception of human rights. Specifically, she discusses the failure of this conception to protect the rights of stateless refugees. The Universal Declaration of the Rights of Man and Citizen (1789) professed the supposedly inalienable rights of human beings. But as Arendt shows, these ‘inalienable’ human rights do not apply to stateless human beings. In what follows I will think through Arendt’s reasons for arriving at this conclusion; I’ll also consider the implications of her suggestion that the figure of the criminal is, from the point of view of human rights, in a preferable position to that of the stateless person.
The Universal Declaration of the Rights of Man is not an internationally binding legal agreement. Rather than a new legal order, the Rights of Man symbolised an ideological shift in thinking about human rights – as no longer derived from God, nor any longer dependent upon historical precedence, but as derived from man himself. In practice then, the constitution of each given country – as long as it was civilized enough – was [in theory] based upon and reflective of the rights set out in the Rights of Man. On the understanding of human rights as naturally derived from man, every person is entitled to human rights insofar as he is a human being. Moreover, there need not be any authority to put these rights into effect, since they are naturally derived. In fact, however, these so-called ‘inalienable’ human rights, “irreducible to and undeducible from other rights or laws” are only guaranteed insofar as they are manifested through law. Human rights lose all significance once a person is stripped of everything except the quality of being human. This paradox Arendt points out became clear in the aftermath of the Second World War, when millions of individuals showed up in Europe baring nothing but their naked humanity and a plea for human rights.
The conception of rights as derived naturally from human beings rests on an idea of the human being as such – without any other qualities attached to him. But this abstract, naked human being does not in fact exist in our world. As Arendt aptly observes, there is no uncivilized part on earth; our world is occupied in every place with people who live in some kind of social order. Human rights, then, are protected within these social orders; the structure of political communities ensures that individual rights are protected by their respective communities. The quality of being associated with a political community is therefore what guarantees one the protection of their human rights. Even in the case that a person lives outside the boundaries of their country, they remain protected by its laws. They are treated as human beings no matter where they are in the world, precisely because of their national affiliation to a single place.
The stateless person, an anomaly in this completely civilized “One World”, is stripped of such affiliation. World War II as well as contemporary global crises produced masses of refugees who became properly stateless: they no longer belong as citizens under any government. The stateless find themselves, therefore, outside that system which can guarantee their human rights. They can find no legal authority willing to guarantee their rights because there is no place for them under any enforced constitution.
In a system of nationally-bound human rights, the human being without national affiliation is perceived as “nothing but a man”. After all, “man is a political animal” as Aristotle famously stated. The loss of membership in a political community is therefore the loss of that characteristically human quality; it signifies the loss of that which makes one recognizable as man. As Arendt comments, “a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow-man”. This carries the important implication that membership in a nation-state guarantees one not only human rights, but the quality of being human in the first place. Being expelled from participation as a member of any state is therefore to be expelled from humanity. Indeed, stateless refugees appear as subhuman, as “aliens”; they find themselves outside of the organised structure of human civilization and, as Arendt describes it, are thrown back into in a sort of “state of nature”. The generality of their being, the nakedness of their humanity, ironically forces the stateless outside the recognised boundaries of human civilised life, and they are made inhuman.
The quality of being human, for Arendt, is visible in the rights to action and speech. These “characteristically human qualities” are manifest in one’s recognised participation in a political community. Participating as an equal member in a political community is what makes one’s actions and opinions meaningful. The right to live in such a framework – “a framework where one is judged by one’s actions and opinions” – is what Arendt calls “the right to have rights”. The stateless person, it may be argued, retains these rights to speech and action. However, it is belonging that allows speech and action to, crucially, carry significance. Indeed, the stateless may act or speak in whatever way they wish – but neither the deeds nor the opinions of one who lives outside the structure of communities, and outside the pale of law, affects any consequences. “Their freedom of movement, if they have it at all, gives them no right to residence… and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow”. The stateless person is exempt from the opportunity to contribute, through action and speech, to a common community. In the legal system, members of nation states are treated according to the merits of their speech and action; for example, he who transgresses the law is penalized for his action – this may take the form of the loss of certain rights, such as freedom of movement. The stateless, on the other hand, are absolutely deprived of rights, not as punishment for their committing wrong acts, nor for their expressing unpopular ideas – they are deprived of rights on the basis of who they are.
The figure of the criminal in society escapes this meaningless existence outside the pale of law. For the criminal, there is legal jurisdiction. The criminal’s position in society is therefore preferable to that of the stateless individual’s – this is clear by the very fact that the criminal has a position in society, whereas the stateless refugee does not belong in any way, even as an outlaw. The stateless person, then, may gain legal status by deciding to commit a crime. In fact, the stateless person, by becoming a criminal, can gain human rights recognition, as I will discuss below.
The identity of the criminal, qua criminal, is established precisely as a result of his deeds. Notably, the criminal has an identity, whereas the stateless person is faceless, a naked, quality-stripped, general human being. Moreover, the criminal is granted a position of equality; he is treated equally with his fellow criminals. And as Arendt points out, the notion of equality is a social construction; equality is not found in the savage, state of nature. Rather, equality is a sign of civilized society, of a formed community. The criminal, then, rises out of the condition of savagery, and enters once again into the circle of recognised humanity. He is no longer just an abstract human being; the criminal retains that quality which makes it possible for others to perceive him as a human being. Despite his past, the criminal gains through his action and/or speech a position in society: he now belongs as a recognised member. The criminal’s fate is determined according to his own actions [against the law] and his own words [during his trial]. By virtue of his crime, he has gained the right to have rights.
By the very act of transgressing the law, the criminal gains the position of an equal member under the law. As someone who belongs, as a recognised member, he may now enjoy the protection of his human rights. The criminal retains the right to speak in trial, and he faces consequences accordingly. It is true that these consequences may actually entail the loss of certain rights, such as freedom of movement or the right to work. However, such a deprivation comes in direct consequence of the actions he commits; the criminal’s loss of rights is punishment for his actions and/or words. His deprivation of rights in fact signifies that the criminal is judged according to his words and actions – and this is the guarantee of the right to have rights. The criminal thus procures a respectable place in society. He is judged not according to who he is, but according to what he has done. The criminal is recognised as a human being, and therefore he is recognised as a bearer of human rights.
It seems that the Rights of Man are only inalienable rights of human beings insofar as one is recognised as a human being. The rights to meaningful and effective speech and action, which Arendt thinks are essential to man’s humanity, seem only so if they are what qualify one to be a recognised member of humanity. Plausibly, what Arendt’s understands to be this recognition of the human being amounts to the notion of personhood. On this understanding, the right to have rights is the right of persons. As previously discussed, the naked human being is merely a member of the human species, likened to an animal in a general category; as such, the human being is not entitled to human rights. To be recognised as a human being entails that one is no longer merely an inborn member of the species, but is now an equal member of an organised community. Furthermore, participation as an equal member of a political community implies that one is seen as an equal person under the law. Human rights guaranteed through the constitution of a given country are not granted to mere human beings, but are reserved for legal persons.
The criminal, as discussed above, is granted recognition: he is given the right to have rights, as an equal member of the community. The criminal thus possesses that quality of personhood – through his participation in a human community and through the fact of his position under the law – which guarantees him the protection of his human rights. To receive human rights, then, one must not only be human, but one must also be a person. What it takes to be recognised, to receive the status of personhood, is a question worth exploring further. It seems at least, however, that the stateless individual may gain personhood, and subsequent human rights recognition, by committing a crime.