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

On the Right to Have Rights: Human Rights; Marx and ArendtAuthor(s): Werner Hamacher, Ronald Mendoza-de JesúsSource: CR: The New Centennial Review, Vol. 14, No. 2, Law and Violence (Fall 2014), pp. 169-214Published by: Michigan State University PressStable URL: http://www.jstor.org/stable/10.14321/crnewcentrevi.14.2.0169 .

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On the Right to Have RightsHuman 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 be a human. Everybody was a human only by virtue of a

society; and a society could only be that which secures its coherence, its

duration, and its independence from other societies of similar or different

types through laws and rights, forming a political community as a consti-

tuted society. From this follows Aristotle’s definition of the human as an

essentially political animal—a zo�o�n politikon. This definition would be-

come problematic for the first time 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 con-

stitutive indifference and its structural neutrality over and against politi-

cal matters. “Nobis . . . nec ulla magis res aliena quam publica. Unam om-

nium rem publicam agnoscimus, 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.

� 1 6 9



mi1

Line

than public matters. We acknowledge one public thing, the world).1 These

two sentences from Tertullian’s Apology (197 AD)—that Christians could not

be more foreign to the public matters of the Roman Empire; and that, more-

over, they could recognize exclusively one public thing: the world as a whole—

were just a reaffirmation of the harmlessness of a regional sect that was

uninterested in imperial politics. And yet, at the same time, these two sen-

tences contained a declaration of independence over and against the prerog-

atives of the political and introduced a distinction in the essential determina-

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 pu-

blica, and hence the politics of the city and of the worldly state, were foreign to

Christians; in contrast, the sole thing that mattered to them was the thing that

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, above all, a world-social being. It could remain neutral concerning state-

society because it felt itself to be defined through its participation in a society

that was other than that which was constituted by the state.

Society thus became the only sphere that could grant the possibility of

indifference vis-a-vis political society. That the community of the faithful

organized itself in the eccle�sia (assembly) as a civitas (citizenship), follow-

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

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—“holo� to�

kosmo�”—regardless of political, ethnic, or legal-ritual particularities.2

Their religion was not the civic religion of the citizen of a city-state, a nation-

state, or a transnational empire; on the contrary, their religion emerged with

the claim (Anspruch) to be a religion of universal human beings and of the

divinity of this universal humanity.3 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.

1 7 0 � O n t h e R i g h t t o H a v e R i g h t s



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 of the faithful—led to its own type of society that was

politically determined in a thorough manner. Among the Reformation

movements, Protestantism clarifies the utmost consequences of this pro-

cess. By way of its paradoxical conformism, the Protestant Reformation

contributed to the democratic revolutions from the sixteenth to the eigh-

teenth century, and to their principle of universal equality—that is, the

principle of the immediacy of the social—the only principle that is thor-

oughly 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.4 This is clear from Hobbes’s con-

struction of a “Christian commonwealth” and even clearer from the

constitutional-theoretical projects of Rousseau and Kant. Hegel systematizes

the alliance between protestant Christendom and postrevolutionary political

structures as historico-theological and legal-logical, and Tocqueville de-

scribes it in his account of North American affairs. This alliance is the basis for

Marx’s polemic directed at the state-theology of the political emancipation of

the bourgeoisie in his still scandalizing short essay from 1844, “On the Jewish

Question” (1987).

I I .

Marx’s starting point is that the fundamental “postulate of Christendom” 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 first brought about by social trans-

formations: “Political democracy is Christian,” writes Marx in “On the Jewish

Question,” “insofar as, in democracy, the human, not only a human but rather

every human, is taken as sovereign, as the highest being; but the human in its

uncultivated, unsocial appearance, the human in its accidental existence, as it

goes and stands, the human as it . . . is given under the domination of inhuman

W e r n e r H a m a c h e r � 1 7 1



relations and elements, in one word, the human that is not yet an actual

species-being” (1987, 39). 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 structur-

ally 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 significance”; 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 exis-

tence,” can be realized as a social- and species-being. Christendom proves

itself to be the form of universal relationality, insofar as it produces democ-

racy as its political correlate, and democracy attests to its Christianity, “inso-

far 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” (39).5 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 confes-

sion among other equally valid confessions. Within democracy as the politi-

cized universal religion, each singular religion can only be a private thing; the

state, however, is the object, medium, and form of the only remaining religious

cult: the democratic one. The “consummated Christian state,” as Marx em-

phasizes, is the “atheistic” state, the “democratic” state (36). The seculariza-

tion 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.6 Secularization is the rigorous politicization

and juridification 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” (39–40). According

to Marx’s argument, since the state disregards the religion of individuals and




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 the state. In this

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 reli-

gion 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 soci-

ety, 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, democracy knows only the human 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 1791 and 1793, and of the Constitutions of Pennsylva-

nia and New Hampshire, from 1776 and 1784. 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 state-

citizen 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 defines the human through the state-citizen and 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) of the human to be a




human as a constitutional-legal positing of a state that ascribes itself at once

the right to a constitution and to self-definition, and it is out of this act of an

originary self-appropriation through the founding of all rights that the funda-

mental 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 defines itself through law; since it defines itself through

law, it must be first of all a property-state, and its citizens must be determined

through property and possession: they must be determined through the priv-

ilege 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 defined 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 commu-

nity is degraded to the sphere in which it relates to itself as a partial being,

finally, not the human as a citizen, but instead the bourgeois is taken as the

proper and true human” (43). The presumptive humanism of modern demo-

cratic politics is de facto a structural antihumanism and, essentially, a dis-

guised particularism.

Marx cites the second article from the Déclaration des droits de l’homme et

du citoyen from 1793—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) (42).7 He continues the citation with the definition

of freedom from article 6: “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)

(42).8 Marx comments: “Freedom as a human right is not based on the bond of

the human with the human; instead, it is much more based on the dissociation

of the human from the human. It is the right to this dissociation, the right of a




limited individual that is confined to itself” (42).9 The diagnosis that Marx

links to this commentary on the civic definition of the right to freedom is as

sober as it is compelling: civic society “lets each human find in other humans

not the realization but more so the barrier to their freedom” (42). The word

“freedom,” as it is defined in the context of the American and French human

rights declarations, can only be understood as an antonym, as a countercon-

cept, 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 de-

clared 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 consid-

eration 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

artificial 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 never positively as a reciprocal advancement in the enjoyment of the

common. Because of this, in these declarations the blockade and the with-

drawal of relation will be elevated to the criterion for the definition of sociality

and hence of the humanity of the human. Civil society, as it determines itself in

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




it is thus a paradoxical union of desocialization that is only held together

through competing property and profit interests. Consequently, in its self-

declaration, 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 2 of the Déclaration des droits de l’homme et du

citoyen of 1791, 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) (43). Democratic society defines 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 (35). The democratic natural religion, whose rites are

codified 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 them-

selves and from other humans” (35).

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 the separation of society from society.10 The police have the double task

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”—to these 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” (43). 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, defining the

political as a thoroughly policed society.11 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” (43).12 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




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,

juridified, 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 stabilizers of 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 responsi-

bility 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 partic-

ular 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 define itself

through this right. Marx does not make use of the “right to rights” formula, but

his critique of the autoteleological structure of rights in the property and

self-protection state, and in every society that has become a function of such a

state, implies such a circular formula. The formula “right to rights” character-

izes 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 exis-

tence. “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, first of all,

property. The right to these rights is only granted to them with these rights




themselves; this right defines 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, secu-

rity, property—are the rights of a generalized policeman, which each individ-

ual 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 anti-

societal-atheistic. On the basis of these human rights, politics can only be a

national and international police-politics that splits society into the econom-

ically privileged and the underprivileged and intensifies 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 them-

selves—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

scientific, in the most emphatic sense of the term. It is hard to reconcile

scientific prognoses with the absence of their fulfillment. But unfulfilled prog-

noses authorize no conclusion on the lack of cogency of the analyses that

underlie them.

I I I .

The “so-called human rights,” as Marx shows, secure the opposite of what they

affirm to secure (42). 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




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—col-

lapse. Human rights are paradoxical figures, 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” (39) and, in fact, not in

spite of but precisely because they dispose of the law (das Recht) as an insti-

tution 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 (39). The Christian maxim of the

independence of humans from normative precepts (Vorgaben), which became

the political maxim of democracy, “externalizes [äußerlich macht] all na-

tional, natural, moral, and theoretical human relations,” (41) and removes all

historically variable elements from the human’s political self-definition to

such an extent that it enables the human for the first time to determine itself

as a political being absolutely without any limitations. This process could be

characterized, borrowing from Husserl’s concept of phenomenological reduc-

tion, as a juridico-political reduction, as the reduction of the human to its

function within a state-constituted community (Gemeinwesens), as the reduc-

tion 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” (51). 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




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” (35).

However, since the sovereignty maxim of Christendom was not only consum-

mated (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 suffice 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 to-

gether through a prestabilized harmony but who are instead driven apart

from each other through enmity; each individual (Einzelne) is not an indivi-

duum (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 juridified 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 defined, 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 univer-

sals 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) (35),

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). But it is still undetermined




what will become of this essence itself—of both separation and of community—

and of its unessence (Unwesen). This indeterminacy still belongs to the situa-

tion 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 first 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 “On the Jewish Question,” Hannah Arendt describes the consequences

of this legal-logical alliance in her 1951 book, The Origins of Totalitarianism. Ac-

cording to her findings, whoever is stateless is also rightless. Human rights—

even those formulated by the United Nations in 1948 —are determined as

inalienable in order to uphold their validity independent from historico-

empirical instances and their opportunistic principles of activity, and to en-

trust 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

define 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

(außer Kraft zu setzen) any of these rights. Here lies the unsurpassable paradox

of human rights, which Arendt expresses when she speaks of the “perplexities

of the rights of man,” of the “aporias” and of the “end of human rights” (Arendt

2004, 369–84).13

The loss of human rights, which was programmed from the very beginning

through their structural fusion with the citizen rights of nation-states, be-

came a political mass phenomenon, at the latest, since the beginning of the

First World War. Through denaturalization laws, the partial or full misrecog-

nition 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




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 (1915), Portugal (1916), Russia (1921), Belgium (1922), Italy

and Egypt (1926), France (1927), Turkey (1928), and Germany and Austria

(1933) (355–56 n. 25). 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 flagrant contradictions, since, as property and security rights, they ward

off in principle any assault—including any presumed assault—to the “integ-

rity” of the private person or of the nation-state, and they allowed nation-

states 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 revo-

cation 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 1948 were

not the first scholars of international law to be conscious of the fragility of

their declarations, but they must have been among the first jurists who had

the pervertibility of their declarations clearly before their eyes. For they ad-

mitted as the thirtieth and last article of the Declaration the following sen-

tence: “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.”14

This hermeneutical protective provision comes from the possibility that every

single human right can be used to destroy human rights, and that preventing




the double bind of human rights from becoming suicidal is only a matter of

their interpretation and of their political and organizational application; 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

confirmed by their signatories; the only thing that does not follow from hu-

man 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 inter-

ests of the state, to either adopt human rights as the measure of political

decisions or to disregard or to reject them altogether: human rights them-

selves could always legitimate any of their arbitrary manipulations. Arendt

points to the denaturalization laws of the 1920s and 1930s, 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 human rights in 1948, shows that human rights

and their respective national-state specifications are incapable of limiting

even their crassest misuses.15 For this reason, the highest legal institutions

that humans have conceived of to date prove to be unsuited to define and to

protect what is “human.”

I V .

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 funda-

mental rights and after introducing the concrete concepts of the right to action

and the right to opinion as the decisively political and social concepts, she writes:

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, only when millions of people

emerged who had lost and could not regain 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 the contrary, 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 be-

come identical with expulsion from humanity altogether. (2004, 376–77)

To clarify the most far-reaching implications of Arendt’s decisive reflections,

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 be-

coming destructible at the same time—as the rights of all humans and, con-

sequently, 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 secu-

rity 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” (Heimatver-

triebene) 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 juridifica-

tion 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 pro-

duce abstract humans without world and an abstract world without humans.




It was only later that Arendt would draw the implications of her observa-

tions and speak of “the end of human rights”—and, even then, only in a

hesitant manner (2004, 341). The essay where Arendt presents for the first

time her reflections on human rights in a relatively systematic manner was

written in 1946, partly as a response to Hermann Broch’s project for an

“International Bill of Rights;” it was published in 1949 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”).16 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

and only, albeit lost, human right. Instead, the concluding chapter only intensifies

the description of the aporias and of the end of human rights, which are men-

tioned 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,” finds absolutely no correspondence in the book edition, and the

conclusion that the essay draws at the end is omitted in the book chapter: there is

no talk of the one human right that “transcends” the rights of the state-citizen, and

that, for this reason, would be the only right “that can and can only be guaranteed

by the comity of nations (“Gemeinschaft von Nationen” [community of nations] in

the German) (2004, 631, 629).17 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 commu-

nity that operates in accordance with the juridical premises of states.

In June of 1949, three years after writing her article on human rights and

while working on the final 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 atten-

tion” (Arendt and Brock 1996, 118).18 Before rewriting the essay into a book




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 transcen-

dence of a future in which the one and only human right could be enforced. In

place of the essay’s confidence that the “one human right” could find a guar-

antor in a “comity of nations,” the book 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 “ide-

alistic bond”: “For it is quite conceivable, and even within the realm of practi-

cal political possibilities, that one fine 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” (2004, 379).19 In short, a democratic, cosmopolitan state would be

nothing but the institutional concretization of the already ruling “global or-

ganization” 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” (2004, 377). The moment when, for the first time in modern his-

tory, 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.




Arendt leaves no doubt that “not only this or that civilization is at stake,

but the civilization of the whole of humanity” (1986, 625), since “a global,

universally interrelated civilization may produce barbarians from its own

midst” and not cease to produce them (2004, 384).20 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” (2004,

xxvii).21 However, Arendt leaves open in which sense one could still speak at all

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 depoliti-

cization, a principle of the rupture of 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

more urgent to determine who is the one who loses this right, the only one who

could grant a renewed expectancy for this right, and the only one who could

ever define 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” (1986,

615).22 Its formal characterization as “the right to have rights” has lead politi-

cal and legal theorists to exegetical uncertainties that cannot be corrected

easily, since this characterization, in keeping with Arendt’s view on the mat-

ter, is ambiguous.23 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 given by 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, political-

ly—about the political order of a community (Gemeinwesens). Thus, for Ar-




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.24 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, suggest-

ing 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 com-

munality. 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




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 represen-

tations or preformed in logical categories. As a result, all of these would

become conditions of that unconditional “right,” which, on its part, de-

fines the social and political world through common, lingual action

(sprachliches Handeln) each time anew, each time for the first time and thus

independent from predeterminations.25

For this reason, even the most recent declaration of human rights cannot

satisfy the structure of what Arendt indicates as the “right to have rights.” This

declaration also proceeds from both a descriptive and a prescriptive defini-

tion of what a human—in accordance with nature or its essence—is or has to

be and which specific rights he or she can claim on the grounds of this being or

ought. In the Declaration of 1948 —which Arendt does not mention explicitly,

but which she must have known by the time she was finishing writing her

book—it is stated: “All human beings are born free and equal in dignity and

rights.” And: “Everyone has the right to life, liberty and security of person.”26 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 befit it. Each pregiven definition 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 definition, this “right”

would be bound to predicates, properties, and paradigms that, absurdly, place

among rights the denoted capability for determination (Bestimmungsfähig-

keit) of this “right” and must thereby annihilate it. To such definitional restric-

tions 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 defining

force (Definitionskraft). Even the concept of dignity—which Broch places at




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 first American edition of her book on totalitari-

anism (2004, xxvii)—is denoted by Arendt as a concept “of a rather ambiguous

nature,” because it only defines the “nature” of the human, but, to this end, it

must disregard the human’s ability of determination, its plurality, and its

historical openness (2004, 378).27 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 significance 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 some-

thing like a right to have rights . . . since millions of humans . . . have lost this

right” (1986, 614).28 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 definition of the “right to

have rights” belongs, first 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




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, first 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, as this granting, the only

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.




Third, these comments expand on the scarce explanations that Arendt

gives of the “right” to rights. They follow from the blueprint of her argumen-

tation, which does not always go into the implications, the consequences, or

the possibilities for further development of her reflections and which often

lets systematic considerations take a step back behind historical observa-

tions. In her rhapsodic presentation, the center of her reflections on the “right

to have rights” remains particularly in need of explanation: language, insofar

as it is the entrance to community, its medium, but also its greatest threat. The

loss of the one and only human right in the era of totalitarianism was first 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

sense the loss of language, indeed not in a physical sense, but rather in the sense in

which Aristotle defines the human as an animal that can speak; for he did not

mean the physical capacity, which also belongs to barbarians and slaves, but

instead the capability to regulate the matters of human and, above all, of public life

in living together through language, and not through violence. (1986, 615)29

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 first bespeaks (erspricht) a

world along with others and first opens up a political public sphere in speak-

ing 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 (1986, 615). Thus, the

moment when millions of human beings were deprived of their double deter-

mination 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-




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

of the law and isolate a linguistic existence without rights; only the language of

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 commu-

nity, without anybody having forfeited this claim through political declara-

tions or activities, the circle of determinations of linguistic and political

existence is broken and their context (Zusammenhang) is torn asunder in

such a way that linguistic existence cannot be 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 identification and the self-maintenance of a society that ought to 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—conse-

quently, [it must have discarded] every nonconfirmative 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 fixation 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, re-

duced language to acts of judgment, and eliminated its political relevance. If

the polis—as Arendt assumes with Aristotle—was ever the place, free of defi-

nition (definitionsoffene), of the being-human in the sense of the speaking-

being, 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, redefining, and indefinite




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 pre-

and trans-predicative movement that is not secured by any legal structures

and judgment structures.

Only the disjunction between politics and language—which Arendt de-

scribed 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) and to the legal

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 totalitarian-

ism—it has become customary, through ostracism, exile, proscription, or

excommunication, to ban out of a community (Gemeinwesen) all the individ-

uals and groups who are deemed as a threat or even only as a disturbance to

the interests of the community (2004, 384 n. 54). 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 legal-

formity (Rechtsförmigkeit) of all social relations can justify in principle in-

creasingly global legal denials (globale Rechtsversagungen), it has already done

so, and it will continue with the massive production of rightlessness as long as

law is defined through its ability to exclude from rights.30 In accordance with

the logic of a right that is structurally a right to the denial of right (Rechtsver-

sagungsrecht), 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




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 “finely orga-

nized and mechanized humanity” that “will conclude quite democratical-

ly—namely by majority decision—that for humanity as a whole it would be

better to liquidate certain parts thereof” (2004, 379).

If a juridico-political decision—whether it is brought about democrati-

cally 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 pro-

ceeds 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 con-

comitantly installs, politics has become structurally an automatism of self-

exclusion—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 definition of being-

human as dependent on the exercise of its linguistic as well as its society-

forming potentiality has become historically obsolete.




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” (2004, 384). 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” (376). Where this judgment follows a rule, as it must to have univer-

sal legal validity—for the law is a rule of judgment—and where political

evaluation exhausts itself by proceeding in accordance with rules of judg-

ment, or by judging over these rules, language as a whole is reduced to

consensuses and consensual arguments or to refutations and refuting argu-

ments, 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

community is a law over this community. The judgments that this law imposes

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 societ-

ies—is the “barbarized,” rightless humankind, which is excluded from the

forms of the political, from the world of allegedly open lingual action, re-

moved, 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

defined 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 first 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;




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 first 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 define

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-defining political and juridical society is

also at its end, but Arendt differs from Marx in that she does not link this 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 (Sprach-

und Existenzrestes) that cannot be reduced any further, and it can itself only be

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 “unqualified, mere existence”; the German is less

concise: as “abstract nakedness of being human” and “abstract nakedness of

being nothing but human” (2004, 380; 1986, 619–20). This being-human (Men-

schsein) is stripped of all those qualities and predicates that could be granted

to it as a political and juridical existence: as Arendt specifies, the “abstract

human being” has “no profession, no citizenship, no opinion, no deed by

which to identify and specify himself” (2004, 383; 1986, 623). The American

edition goes further and says that this general human being is “different in




general, representing nothing but his own absolutely unique individuality

which, deprived of expression within and action upon a common world,

loses all significance” (2004, 383). 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 “unqualified existence”

have been suspended. If it presents nothing other than its unique individuality,

then it presents a signifying (Bedeuten) without any consensually established

signification (Bedeutung). Thus, it speaks a nonrepresentational (nicht-

repräsentierende) language that has no predicative force and cannot be itself an

object of finite predications; a language that is qualified through absolutely no

achievement and that is identified through no belonging. Differing from the lan-

guage 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 undefined

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 “dif-

ferent in general,” then it must be different even from the categorical

universality of a genre, a type, or a form, which lets identifiable individual-

beings be subsumed, and it can only be as an existence that is different

from itself, without generic or specific 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 possibilitiza-

tion that, concomitantly, brings within itself their impossibilitization

(Verunmöglichung). 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

identification and is subordinated to no rule of judgment, it is capable of no

conclusive definition and even less of a self-definition. Thus, it cannot become the




functionary of prospective rights, counterfactual ideals, or even only have a con-

sistent figure (Gestalt) upon which its potentiality (Vermögen) would be laid: it has

no potentiality that it could reclaim as its own.31

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 unqualified 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 affirmation of existence (2004, 382); of this other beginning

speaks with greater emphasis another citation 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” (2004, 616). This beginning, which is

“the promise, the only ‘message’ which the end can ever produce” (616) 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)

(1981, 166); 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.32

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—the language

of a mere desire for community that precedes each already-constituted com-

munity—can be the beginning of the constitution of a community and pre-

serve 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




opened with it can only be, in turn, a beginning of other beginnings, a com-

munity 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 (Anbah-

nung) 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

at the same time a zo�o�n politikon and a zo�o�n logon echo�n, and that it is only the

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 con-

nected with something else or not. The “right to have rights”—and, first 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 (1253a), formulated the

double determination of the human as a political living being in command of

language—names, in Peri herme�neias (On Interpretation) (17a), 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

language of a claim to hearing, to attentiveness, to an addressing (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 fulfill this claim itself or even only to identify

it as a claim: it is the language of the absolute self-insufficiency and of a

reliance on the other, on the language of the other and on other languages,




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

attested in the only minuscule fragment of his lost text Peri euches (On Prayer),

which has been handed down from Simplicius in his commentary to De cœlo

(On the Heavens). In this highly significant passage, he says: “That Aristotle

had something in mind that exceeded thinking and being (hyper ton noun kai

ten ousi�a), becomes clear in the end of his book ‘On Prayer’: ‘God is either

thinking (nous) or beyond thinking (epe�keina� ti tou nou)’” (1955, 57; 2006, 50).33

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 (1288b24).34 Whatever may be the addressee or

the theme of a petition, of a prayer, or of a claim, it lies outside the realm of

verifiable or falsifiable predications of existence. For Aristotle, the wish, the

plea, the lamentation—which exceed every judgment—belong to the lan-

guage of rhetoricians, whose quest for persuasion and conviction could be-

come an element of political or juridical deliberation without already belong-

ing to the language of evaluation or of decision. In The Human Condition,

Arendt gave at least one indication of this nonpredicative language (1958,

26–27, n. 8). 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 and is a petition without this

other that could fulfill it; a petition before it, which merely opens up a place for the

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 of a community out of the distance from it, the breaching of the way of

a common language without it being already given or even without its possibility

being secured. It is not the speech of a being in command of language but rather of

a being without substance that petitions for language, a zo�o�n logon euchomenon.

This petition is still to be heard in each expression and in each judgment.




Only because the language of the political, indefinite 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 coun-

terpart and sets it loose as that which has abandoned the realm of existence or

can never enter it. This language constitutes the common actuality (gemein-

same Wirklichkeit) as modifiable, historical, and inconclusively finite, 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 undeter-

mined plurality of others, to which it exposes itself. Only in virtue of this

language of the absolute singular existence—the “absolutely unique individ-

uality”—is there a plurality that does not fuse itself into the unity of an organic

corporation, and only in this language the event of a pluralization that possi-

bilitates communities accomplishes itself, and yet without being able to come

to its end in any determined or predetermined community. But just as the

language of the absolute—of the singularized, 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 condi-

tions of nonpredicative language—and those are the conditions of protopo-

litical existence. There is political theology only where politics is a secured fact

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” democracy that

Marx mentions still had for him the thoroughly religious form of political




relations secured through property relations; the existence deprived of prop-

erty and of qualities that Arendt 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). It is no longer atheistic, because it is

neither affirmatively 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.”35 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 define it. Those who are deprived of rights,

of a state, and of politics, which have been produced through the politics of the

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

language of those who have no world can only be the language of the liberation

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 defined

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 preserve its determination to transdeterminability (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 commu-

nality 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 find a correspondence, then the judgment that brings about this

correspondence must be structurally—and hence ad infinitum—open to further




judgments; it must be a judgment of the continuation of judgment

(Urteilsfortsetzungs-Urteil) and, therefore, it can only be valid under the constraint

that it can be modified 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 un-

decidabilities. Each determination—and, first of all, the determination of the

“human”—can only be a determination toward further determination, each de-

termination leads to the displacement (Verschiebung) of the boundaries that it

posited, each definition contributes to indefinition. Determination is, in every

sense of the word, trans-determination (Fortbestimmung).36 Thus, judgment-

decisions 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

any constituted community, beyond the political systems 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 of an 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�.

N O T E S

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




contemporary academic writing in English. Translation decisions that call for some justi-

fication 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 Ham-

acher 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 bibliograph-

ical 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 translate this essay. The translation benefitted immensely from 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.

1. See Tertullian, “Apology” ([197] 1978). For the Latin, see p. 172, and p. 173 for the English.

Tertullian’s argument is explicitly based on Jesus’s instruction in “The Gospel of Matthew”

22, 21: “Render therefore unto Caesar the things which are Caesar’s; and unto God the things

that are God’s” (Blaney 1769.) 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 “kos-

mopolites,” a citizen of the cosmos (see Laertius 1972). By now, historians of religion have

made it plausible to argue that Jesus was a cynic teacher in the tradition of Diogenes; see

Lang 2010 (Jesus, the dog: life and teachings of a Jewish cynic; untranslated).

[The English translation of the passage from Tertullian has been modified and the

English translation of Matthew has been supplied by the translator.]

2. See Paul, 1769, I, 8.

[The full verse in Greek reads: “Πρ�τ�ν μ�ν ε�αριστ� τ�� θε�� μ�υ δι� �Ιησ��

�ριστ�� περ� π�ντων zυμ�ν, �τι � π�στις zυμ�ν καταγγ"λλεται $ν �λω� τ�� κ%σμω�”

(First, I thank my God through Jesus Christ for you all, that your faith is spoken of through-

out the whole world). See Westcott and Fenton, 1885. For the English version, see Blaney,

1769.]

3. [Throughout the text, the German 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 “the saying-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 struc-

turally 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 conno-

tations 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

configuration 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




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 into English, is only used in this

translation to render the German noun Forderung or the verb fordern.]

4. Concerning the determinant effects of radical strands of Christianity on the fundamental

political representations of modernity, see Jellinek, 1901. For supplementary materials and

exacting discussions on Jellinek’s study, see the earliest edition Zur Geschichte der Erk-

lärung der Menschenrechte (On the History of the Declaration of Human Rights; untrans-

lated), Schnur, 1964. For further developments of Jellinek’s theses—particularly concerning

their influence on Max Weber—and for an updated bibliography on the subject, see Joas,

2013.

5. Citation added by the translator.

6. [The German word Vorrecht is translated initially as “prerogative” and later on as “fore-

right.” The English noun “prerogative” captures the standard meaning of the German

Vorrecht by designating primarily the possession of an ability or the power that justifies

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 prefix 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, by extension, to beg, to solicit, or to request. The second semantic line can still be heard

in the English word “rogation.” If read with an eye to its etymology, the term “prerogative”

cannot but evoke both the scene 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 prefix “vor” and the German noun “recht” by means of a hyphen:

Vor-recht, which occurs after the first half of the essay. 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 trying to bring to language a claim that precedes any claim 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.]




10. [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




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.]

11. On the concept of the police that orients Marx here, see Hegel 1991, §§ 230–49. Also see

Fichte 2002, § 21; and von Justi 1782 (Fundamental Principles of the Science of the Police

Grounded in the Rational Final Purposes of the Police, untranslated).


13. [It is only in the German edition that Arendt uses the term aporia in the subtitle of her

chapter on human rights; see Arendt 1986, 601.]

14. See Universal Declaration of Human Rights 1948. Citation added by the translator.

15. See Benhabib 2004, 67–69. 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 1951 Geneva Convention Relating to the Status of Refugees and its Protocol

from 1967, the UN High Commissioner on Refugees, the World Court in The Hague, as

well as the recently established International Criminal Court (67). However, at the end

of her plea, Benhabib must concede that “despite considerable developments . . . Arendt

[was] not wholly wrong in singling out the conflict 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.

16. The American edition of this essay was first published in 1949 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, 2011), 394–410 (The Revolution of Human Rights;

untranslated). In a letter to Hermann Broch from September 9, 1946, 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 1996, 14–16 (Correspondence

1946–1951; untranslated). Arendt has in mind here Broch 1978. Broch sent his remarks in the

middle of 1946 to Eleanor Roosevelt, the chairwoman of the UN Commission on Human

Rights that had been actively working on the formulation of an “International Bill of Human

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 recommenda-

tions for the establishment of an International Criminal Court. See Broch 1978, 243–76 and

the commentary of the editor Paul Michael Lützeler, 276–77 (Political writings; untrans-

lated). 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




September 19, 1946, by writing that: “deception (and self-deception) could not have been

uncovered more precisely and directly” (Arendt and Broch 1996, 18).

[I have only been able to find a manuscript that presumably 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 the basis of a conversation with Broch himself. This text is available in

Broch n.d.]

17. For the German version of these citations, see Arendt 2011, 406 and 410, respectively.

[Hamacher cites the German edition of Arendt’s 1949 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 find 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 (2004) 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 first

American version of The Origins of Totalitarianism, published in 1951. 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 first American edition of Arendt’s study on totalitarianism. Nonetheless, the publica-

tion history of Arendt’s chef d’oeuvre confirms Hamacher’s point. Subsequent editions of

her study of totalitarianism, beginning with the German version that appeared in 1955,

replaced the original conclusion with a chapter titled “Ideology and Terror: A Novel Form of

Government.” This decision was then incorporated into the second revised American

edition published by Meridian Books in 1958. In a short text titled “Totalitarianism,” which

appeared in 1958 in the newsletter of Meridian Books (and which is reproduced as the first

appendix in the Schocken 2004 edition of The Origins of Totalitarianism), Arendt herself

accounts for the change in the book’s ending by expressing her dissatisfaction with the

“inconclusive” character of her study’s original conclusion: “The book originally ended 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] A Novel Form of Government’” (Arendt 2004, 618). Although here Arendt does not refer

to the theoretical 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 argu-

ments from the 1949 essay that identify the “comity of nations” as the sole political correlate

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, legal-

istic approach to the issue concerning the political correlate to the right to have rights. This




would confirm Hamacher’s claim that Arendt herself saw the limits of her earlier under-

standing 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.]

18. Since the composition of the human rights essay in 1946, the “Universal Declaration of

Human Rights” had been delivered (December 10, 1948).

19. 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

1955, 81.

20. [The first passage that Hamacher quotes is not found in the English version, whereas the

second is found in both editions.]

21. In the preface to the first edition of the American version, Arendt states “that human

dignity needs 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 defined territorial

entities” (2004, xxvii).

22. See Arendt 1986, 615. [This passage 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 definition 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 defined as a

being commanding the power of speech and thought), and the loss of all human relation-

ship (and man, again since Aristotle, has been thought of as 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 2004, 377).]

23. Compare to the discussions in Gosepath and Lohmann 1998 (Philosophy of Human Rights;

untranslated); Brunkhorst, Köhler, and Bachmann 1999 (The Right to Human Rights; un-

translated); Benhabib 2004; and Menke 2007, 739–62.

24. [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 affinities with the Latin noun parilitas, which means

“parity” and is often used in German preceded by the prefix gleich- in the word Gleichför-

migkeit, 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




human, social, and political relations in accordance to the form of the law that is essentially

delimited to the right to property and to property rights.]

25. [The appearance of the German noun for language, Sprache, in the adjectival form,

sprachlich, or as a prefix in a compound noun, such as Sprach-gerechtigkeit, poses several

translation problems, which are only rendered more acute by unavoidable contextual

matters. In this translation, I have opted for the rare English adjective “lingual” to render on

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

“discursive action,” and not even in terms of speech-act theory. Toward the end of the essay,

the adjective “lingual” appears again as part of the phrase “lingual-justice,” which translates

the rare German noun Sprachgerechtigkeit. I am grateful to Mauricio González Rozo for this

suggestion.]

26. See Universal Declaration of Human Rights 1948. 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 2004, 382). [Hamacher here cites pas-

sages from the first and third articles of the Universal Declaration of Human Rights.]

27. “this dignity was of a rather ambiguous nature.”

28. 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.” The use of plural in “lost . . . rights” limits the loss to individual rights; in the German

edition, it is changed into a singular that refers to the right to have such individual rights.

According to the logic of Arendt’s reflection, 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.

29. [This passage is significantly different in the American edition. For the passage in the

American edition that corresponds to the passage that Hamacher cites here, see p. 377. Also

see the previous translator’s note.]

30. This is still valid under the conditions that have been created through article 6 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 1 that [states that] all human beings are born equal and free in

dignity and rights. In this sense, article 3 of the American Convention on Human Rights

from November 1969 also declares in a distinctively tautological manner: “Every person has

a right to recognition as a person before the law.” 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

the claim, then the path is opened for the dismissal or the revocation of this recognition and




consequently for the legal refusal of the status of legal person. This interpretation is

supported by the emphasis that article 6 places on the “everywhere,” where a correspond-

ing 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 14, 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 to all other countries so

that all countries are imposed with the obligation to grant this right and not to expel asylum

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 fulfilled 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 Univer-

sal Declaration of Human Rights that Hamacher cites here, see Bruno and Fastenrath 1979.]

31. In many respects, Giorgio Agamben’s Homo Sacer studies follow Arendt’s insights, under-

taking the attempt to identify paradigmatic figures (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), Agam-

ben’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 qualifications. See,

in particular, Agamben 1998.

32. Citation (616) added by the translator. [In the American edition of The Human Condition the

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” (1958,

177).]

33. Aristotle 1955, 57. The German translation follows with some modifications the translation

of Hellmut Flashar in Aristotle 2006, 50.

34. See Aristotle 1957. 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 ατ'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�0�ντ�ς τ�ν $κτ%ς, κα� τ�ς τ�σιν 1ρμ%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 2012. Thanks to Mauricio González Rozo for his help tracking

down this passage in the original Greek.

35. See note 4.




36. [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” will be able to spot.

The modifier “fort” in German has several meanings depending on the context: it can

indicate a movement away from a specific 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 determi-

nation as “trans-determination” that Hamacher develops here erodes, through its very

ongoing movement, the teleological, eido-logical determination of determination itself as a

movement that is ruled by any eidos or any morph�e: “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.]

R E F E R E N C E S

Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-

Roazen. Stanford, CA: Stanford University Press.

Arendt, Hannah. 1949a. “Es gibt nur ein einziges Menschenrecht.” Die Wandlung 4: 754–70.

. 1949b. The Rights of Man: What Are They? Modern Review 3, no. 1: 24–37.

. 1955. Karl Jaspers: Citizen of the World? In Men in Dark Times. 81–94 New York:

Harvest.

. 1958. The Human Condition. Chicago: University of Chicago Press.

. 1981. Vita activa oder Vom tätigen Leben. München: Piper Verlag.

. 1986. Elemente und Ursprünge totaler Herrschaft. AntiSemitismus, Imperialismus, totaler

Herrschaft. München: Piper Verlag.

. 2004. The Origins of Totalitarianism. New York: Schocken Books.

. 2011. Es gibt nur ein einziges Menschenrecht. In Die Revolution der Meschenrechte, ed.

Christoph Menke and Francesca Raimondi, 394–410. Berlin: Suhrkamp Verlag.

Arendt, Hannah; and Hermann Broch. 1996. Briefwechsel 1946–1951, ed. Paul Michael Lützeler.

Berlin: Jüdischer Verlag.

Aristotle. 2012. Politics, trans. Joe Sachs. Newburyport, MA: Focus Publishing.

. 1955. Aristotelis Fragmenta Selecta, ed. W. D. Ross. Oxford: Oxford University Press.

www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0058%3Abook%3D4%3

Asection%3D1288b (accessed March 14, 2014).

. 1957. Politica, ed. W. D. Ross. Oxford: Clarendon Press, 1957. www.perseus.tufts.edu/

hopper/text?doc=Perseus%3Atext%3A1999.01.0057%3Abook%3D4%3Asection%3D1288b (ac-

cessed March 10, 2014).

. 2006. Aristoteles. Werke in deutscher Ubersetzung. Bd. 20. Fragmente zu Philosophie,

Rhetorik, Poetik, Dichtung, trans. Hellmut Flashar. Berlin: Akademie Verlag, 50.



http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0058%3Abook%3D4%3Asection%3D1288b





Benhabib, Seyla. 2004. The Rights of Others: Aliens, Residents, and Citizens. Cambridge:

Cambridge University Press.

Blaney, Benjamin, ed. 1769. The Holy Bible: King James Version. New York: Oxford Edition.

Broch, Hermann. 1978. Bemerkungen zur Utopie einer “International Bill of Rights and

Responsibilities.” In Politische Schriften, ed. Paul Michael Lützeler, 243–77. Frankfurt:

Suhrkamp Verlag.

. n.d. Bill of Rights—Bill of Duties: Utopia and Reality. In Hermann Broch Collection;

1938–1972, 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. 1999. Recht auf

Menschenrechte. Frankfurt: Suhrkamp Verlag.

Fichte, J. G. 2002. 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. 1998. Philosophie der Menschenrechte. Frankfurt:

Suhrkamp Verlag.

Hegel, G. W. F. 1991. Elements of the Philosophy of Right, ed. Allen Wood. Cambridge: Cambridge

University Press.

Jellinek, Georg. 1901. The Declaration of the Rights of Man and of the Citizen. New York: Henry

Holt.

Joas, Hans. 2013. The Sacredness of the Person: A New Genealogy of Human Rights. Washington,

DC: Georgetown University Press.

Laertius, Diogenes. 1972. Lives of Eminent Philosophers, ed. R. D. Hicks. Cambridge, MA: Harvard

University Press. Vol. 6, 2-63. http://data.perseus.org/citations/urn:cts:greekLit:tlg0004.

tlg001.perseus-eng1:6.2 (accessed March 3, 2014).

Lang, Bernard. 2010. Jesus der Hund, Leben und Lehre eines jüdischen Kynikers. München: C. H.

Beck Verlag.

Marx, Karl. 1987. On the Jewish Question. In The Marx-Engels Reader, ed. Robert C. Tucker, 26–

52. New York: W. W. Norton.

Matthew. 1769. 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/50/220001/229999/ch/.

474c960cefb81b92775b1aa5c6657e2b/ (accessed March 6, 2014).

Menke, Christoph. 2007. 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 1, Social Research 74, no. 3: 739–62.

Paul. Letter to Romans. 1769. In The Holy Bible: King James Version, ed. Benjamin Blaney. New

York: Oxford Edition, 1769. www.academic-bible.com/en/online-bibles/king-james-version/

read-the-bible-text/bibel/text/lesen/stelle/55///ch/d6ddd6d2a4bf92c026574aa3df657b12/ (accessed

March 6, 2014).



http://data.perseus.org/citations/urn:cts:greekLit:tlg0004.tlg001.perseus-eng1:6.2

http://data.perseus.org/citations/urn:cts:greekLit:tlg0004.tlg001.perseus-eng1:6.2

http://www.academic-bible.com/en/online-bibles/king-james-version/read-the-bible-text/bibel/text/lesen/stelle/50/220001/229999/ch/.%20474c960cefb81b92775b1aa5c6657e2b/



http://www.academic-bible.com/en/online-bibles/king-james-version/read-the-bible-text/bibel/text/lesen/stelle/55///ch/d6ddd6d2a4bf92c026574aa3df657b12/

http://www.academic-bible.com/en/online-bibles/king-james-version/read-the-bible-text/bibel/text/lesen/stelle/55///ch/d6ddd6d2a4bf92c026574aa3df657b12/


Schnur, Roman, ed. 1964. Zur Geschichte der Erklärung der Menschenrechte. Darmstadt:

Wissenschaftliche Buchgesellschaft.

Simma, Bruno; and Ulrich Fastenrath, eds. 1979. Menschenrechte—Ihr internationaler Schutz.

München: Deutscvher Taschenbuch Verlag.

Tertullian. 1978. Apology. In The Loeb Classical Library: Tertullian. Minucius Felix, trans. T. R.

Glover, 173. Cambridge, MA: Harvard University Press.

Universal Declaration of Human Rights (10 Dec. 1948). 1948. United Nations: Human Rights.

www.un.org/en/documents/udhr/index.shtml#a30 (accessed February 28, 2014).

Von Justi, J. H. G. 1782. Grundsätze der Policey-Wissenschaft in einem vernünftigen, auf den

Endzweck der Policey gegründeten. Göttingen: W. Vandenhoek.

Westcott, Brooke Foss; and Fenton John Anthony Hort, eds. 1885. The New Testament in the

Original Greek. New York: Harper and Brothers.



http://www.un.org/en/documents/udhr/index.shtml%23a30


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

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