Philosophy Social Criticism 2006 Lindahl 881 901

Hans Lindahl

Give and takeArendt and the nomos of politicalcommunity

Abstract Appealing to the original meaning of the Greek term nomos,Hannah Arendt claims that a bounded legal space is constitutive forpolitical community. Can this seemingly anachronistic claim be substan-tiated in the conceptually strong sense that every polity the Greek city-state as much as a hypothetical world state must constitute itself as anomos? It is argued that whereas Arendt falls short of justifying this claim,a reflexive reading of nomos can do the trick: the space of politicalcommunity is necessarily bounded because no polity is imaginable that doesnot raise a claim to an inside as the communitys own space. A world state,were it ever to be founded, would globalize nomos, not suppress it. Whencethe political problem: how does a polity deal with its outside? This problemis particularly pressing because Carl Schmitts defense of nomos radicallychallenges Arendts position. A reinterpretation of her analyses of the foun-dation of a political community suggests how the representational structureof a politics of boundaries parries Schmitts challenge.

Key words citizen/foreigner inside/outside nomos own/strange reflexivity representation space

1 Introduction

The law, Hannah Arendt argues, plays a constitutive role in politics andpolitical community. Yet this constitutive role becomes visible only if wehark back to the original meaning of the Greek word nomos, a meaningthat has become progressively concealed in the course of western history.We are so accustomed, she notes,

PSCPHILOSOPHY & SOCIAL CRITICISM vol 32 no 7 pp. 881901

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to understanding legislation (Gesetz) and the law, in line with the TenCommandments, as orders and prohibitions, the only meaning of which isto demand obedience, that we easily allow the originally spatial characterof legislation to become forgotten. All legislation creates first of all a spacein which it is valid, and this space is the world in which we can move infreedom. What lies outside this space is lawless and properly speakingwithout a world.1

Arendt contends that the semantic transformations governing the careerof nomos systematically block an understanding of laws fundamentalcontribution to political community. To rid this term of its metaphysi-cal accretions is to clear the way for a renewed understanding of thelaw and its relation to other features of political community to whichshe incessantly returns in her writings: power, world, and freedom.

Arendts recovery of the originally spatial meaning of nomosdemands justification: why should political and conceptual priority begranted to what is, at face value, no more than an etymologically priornotion of the law? I will argue hereinafter that this claim can and mustbe justified in terms of the reflexive structure of legal space. Althoughthere are important passages in Arendts writings that point in this direc-tion, it will be my view that she falls well short of the reflexive readingof nomos that could justify her claim. Drawing on Arendt when I can,and taking issue with her when I must, I propose to show that no politi-cal community is imaginable not even a hypothetical world state that does not close itself off as an inside over against an outside.Moreover, and no less importantly, by closing itself off as an inside withrespect to an outside, a community posits a space as its own, and viceversa. This correlation is the heart of the reflexive structure of nomos;to hold that the space of political community is necessarily bounded isto hold that no polity is thinkable that does not raise a claim to an insideas the communitys own space.

The interest guiding this reflexive reading of nomos is political asmuch as it is conceptual. In a well-known chapter of her book on totali-tarianism, Arendt describes the extraordinarily precarious condition ofthe stateless who do not fall within the jurisdiction of the country inwhich they are located, yet have forfeited the protection of any other.2Having lost a legal place of their own, having become atopos, the state-less are anomalous in the strong sense of anomos; in the words of theaforementioned passage, the stateless have become lawless, without aworld. The plight of the stateless illustrates, although it by no meansexhausts, a strong form of exteriority called forth by the self-closure ofa polity. Taking seriously Arendts claim that nomos is constitutive forpolitical community requires making sense of this exteriority and of howa polity deals with it.

Securing a reflexive reading of nomos requires steering clear of twopitfalls. The first is an etymological inquiry into this Greek term, an

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inquiry for which I am anyway totally unequipped. Although referencewill be made in a general way to what etymologists take to be its initialmeaning, this term will function primarily as a guidepost orienting aninquiry into the modes of appearance and genesis of the bounded spaceof a polity. The second trades in the notion of a public space for thatof a public sphere. On this view, Arendts references to a public spaceand a space of appearances are not only largely metaphorical but theyalso conceal that, in modernity, the public becomes a virtual communityof readers, writers, and interpreters.3 Whether or not the publicbecomes de-spatialized depends, however, on what it could mean toclaim that a bounded space is constitutive for political community. Thisclaim merits assessment on its own terms, despite and even becauseof the fact that Arendts discussion of nomos often slips into ametaphorical mode.

2 Nomos and the problem of spatial unity

Arendts recovery of nomos seems anachronistic and embarrassinglyparochial to her contemporary readers. Citing Cornford, she remindsus that, for the Greeks, nomos never entirely lost its original meaningof a range or province, within which defined powers may be legiti-mately exercised.4 The spatiality implied in the notion of a range isclosely related to the substantives noms and nom, and the relatedcompound adjective ennomos. If the substantives denote both pasturageor feeding place, and dwelling place or quarters, the adjective, whichlater means keeping within the law, law-abiding, has the oldersense of quartered or dwelling in a country, which is, as it were,the legitimate range of its inhabitants.5 Moreover, as both Cornfordand Arendt point out, these different terms are related to the verbnemein, which means to distribute, to possess (what has been distrib-uted), and to dwell.6 In this line of thinking, Arendt emphasizes thatthe law of the polis was quite literally a wall, without which there mayhave been an agglomeration of houses, a town (asty), but not a city, apolitical community. This wall-like law was sacred, but only the in-closure was political.7 But Arendt goes much further, generalizing theoriginal Greek understanding of the law to a constitutive feature ofpolitical community as such: all legislation creates first of all a space inwhich it is valid . . . (emphasis added). What justifies this strong claim?

This question is apposite if we bear in mind that, as Arendt herselfnotes, the Roman interpretation of lex as an enduring bond is, incontrast to Greek nomos, potentially boundless in its spatial reach.Politics, for the Romans, began where it ended for the Greeks: at thewalls of the city. Whereas nomos makes room for internal politics, lexdoes so for external politics.8 Yet Arendt immediately qualifies this sharp

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opposition, noting that also for the Romans, the political domain couldonly arise and exist within the legal; but this domain arose and wasenlarged where different peoples met each other.9 Hence, although lexenlarges the experience of action by incorporating conflictual relationsinto the concept of law, the legal enclosure of space conditions politicalcommunity in Rome no less than in the Greek city-states.10 Moreover,the steady expansion of Rome beyond its initial spatial confines firstthe city, then the Italic peninsula suggests why nomos deserves concep-tual and political priority over other, derivative conceptions of law. Ineffect, given the innate boundlessness of action, nomos

. . . prevents it from evaporating into an unsurveyable (unbersehbaren),continuously growing system of relations, [thereby ensuring that action]conserves the durable form that makes of it a deed that can be rememberedand preserved in its greatness, that is, in its excellence.11

It is doubtful whether this normative argument can carry the weightof the strong claim that the legal closure of space is constitutive forpolitical community as such. But assuming it could, notice that Arendtsappeal to nomos actually turns on the need to assure immortality forhuman action. So, paradoxically, it is time, or at least the experience oftime available to action, that, in Arendts view, ultimately justifies thebounded spatiality of political community. Arendts concern withreclaiming the original meaning of nomos from forgetfulness is tribu-tary to her concern with rescuing from oblivion the striving for immor-tality which originally had been the spring and center of the vitaactiva.12 Whatever else we might make of this justification, this muchis certain: it fails to ground the necessity of nomos on its own terms,that is, as a spatial concept.

The need for such a grounding becomes even more urgent if weconsider what is possibly Arendts most trenchant statement about nomos:

Freedom, wherever it has existed as a tangible reality, has always beenspatially limited. This is especially clear for the greatest and most elemen-tary of all negative liberties, the freedom of movement; the borders ofnational territory or the walls of the city-state comprehended and protecteda space in which men could move freely. Treaties and international guar-antees provide an extension of this territorially bound freedom for citizensoutside their own country, but even under these modern conditions theelementary coincidence of freedom and a limited space remains manifest.13

At one level, the passage notes that the spatial boundedness of politicalcommunity preconditions freedom. At a deeper level, it suggests that aclosed space conditions the very possibility of citizenship. To put itprovocatively, citizenship depends on nomos because if there can be nocitizens without inclusion, likewise there can be no citizens withoutexclusion. Citizenship is topical.




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Any attempt to ground these claims must begin by drawing atten-tion to an aspect of nomos that remains largely implicit throughoutArendts writings. Indeed, that political communities are alwaysspatially limited is another way of saying that a political communityconstitutes itself as a spatial unity. Yet, despite her insistence on theconstitutive character of nomos for political community, Arendt doesnot focus on the problem of spatial unity. Why?

Part of the answer lies in the manner in which Arendt celebratesplurality as an essential feature of politics. By postulating that pluralityis the conditio per quam of speech and action, and of politics in general,Arendt relegates the legal enclosure of space to a merely prepoliticalcondition of action.14 As she sees it, nomos provides a durable struc-ture for spaces of appearances in which men, in the plural, can discloseand distinguish themselves through word and deed. Arendt is no doubtcorrect to argue that political theory must account for plurality as acondition of action. But reducing bounded space to a precondition ofpolitics amounts to depoliticizing the spatial unity of a politicalcommunity. This issue bears directly on the master distinction betweenpublic and private places. Although Arendt tends to restrict nomos topublic places, it actually embraces places public and private. In virtueof their mutual implication and differentiation, private and public placesare locations within a more encompassing spatial unity. Indeed, bothpublic and private places presuppose and refer to the totality of placesin which they are located a range. In Cornfords words, nomos denotesa dispensation or system of provinces, within which all the activities ofa community are parceled out and coordinated.15 Accordingly, thedistribution (nemein) of space into public and private places is itself apolitical act or, to put it another way, the distinction between public andprivate places is itself public.

In the same move by which Arendt depoliticizes spatial unity shealso despatializes action. It is striking that the constitutive significanceof nomos notwithstanding, Arendt nowhere engages in a full-blownanalysis of boundary-setting or of what might be termed the topogenesisof political community. However, power is never merely in space;power also always spatializes, in the strong sense of an act that, bysetting boundaries, posits a polity as a spatial unity. Notice in thisrespect that nemein does not only involve the distribution of placeswithin a given range of law, for this already presupposes a prior act thatgives rise to nomos itself, namely the self-closure of a politicalcommunity. Crucially, neither a politys self-closure nor the distributionof public and private places can be reduced to an act of individual self-manifestation or to the sum of self-manifestations of a plurality of indi-viduals who act and speak directly to one another;16 it is the reflexiveact of a collective agent. In other words, nemein, as the act of positing




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boundaries, is the self-manifestation of a political unity.17 Obviously,this insight neither precludes plurality nor entails ontologizing a collec-tive self. Instead, it indicates that justifying the spatial unity of politicalcommunity requires elucidating the reflexive structure of nomos: acommunity closes itself off as an inside over against an outside.18 Unlessthe move is made to a reflexive reading of nomos, the bounded spatial-ity of political community indeed tends to become, as Benhabib puts it,a topographical figure of speech.19

3 From the space of appearance to the appearance of space

In short, the question concerning the appearance of space is prior tothat of the space of appearance. The closing considerations of 2 suggestthe key to the novel line of phenomenological inquiry Arendt opens upwithout fully exploiting it: space appears as a unity to the members ofa community and this means as an inside because nomos is consti-tuted reflexively. What is, then, the spatial unity of nomos, as revealedin the self-closure that gives rise to an inside and an outside?

Although Arendt, for the reasons indicated hitherto, does notdevelop a reflexive reading of nomos, she does point the way whennoting that

. . . a territory, as the law understands it, is a political and legal concept,and not merely a geographical term. It relates not so much, and notprimarily, to a piece of land as to the space between individuals in a groupwhose members are bound to, and at the same time separated and protectedfrom, each other by all kinds of relationships, based on a commonlanguage, religion, a common history, customs, and laws.20

This passage contains various important implications for our topic. Tobegin with, Arendt points out that territoriality is concrete: the common-ality claimed for language, religion, history, and the like entails the claimthat a territory is the common place of a community. This suggests thatnomos involves two correlative dimensions. The first is normative, andconcerns a claim about the common interest of a polity. To be common,an interest must be bounded, and this means that a legal order neces-sarily selects certain interests to grant them legal protection and discardsother interests as legally irrelevant. The second dimension is physical,insofar as the legal orders claim to common interests is determined bymeans of boundaries that partition space. More precisely, the two dimen-sions of nomos manifest themselves in boundaries, which are alikenormative and physical. This explains, on the one hand, why boundary-crossings are normative no less than physical events, and, on the other,why boundaries are variable, even though their physical positioning does




not change an inch (e.g. when import tariffs for foreign goods areincreased or decreased, depending on which interest is endorsed). I shallrefer hereinafter to territory as the concrete unity of both dimensions;as manifested in the boundaries of a legal order, this concrete unity isthe mode of spatiality captured by the term nomos.

The concrete spatiality of nomos sheds light on a further issue thatArendt only hints at, without developing, in the passage cited at theoutset of this essay: All legislation creates first of all a space in whichit is valid (emphasis added). That the boundaries of a legal order areinextricably normative and physical means that boundaries determinewhere persons and behavior ought or ought not to be emplaced. A spaceof action is a legal space of action to the extent that it reveals places asought-places. Remember, in this context, the two meanings of thecompound adjective ennomos, namely keeping within the law or law-abiding, and quartered or dwelling in a country (Cornford). Aphenomenology of nomos suggests that these two meanings are inter-nally connected: abiding, in the twofold sense of abiding by the law andabiding in a place, is one of the spatial modes of appearance of legalvalidity. When abiding, an individual is emplaced, located where she orhe ought to be. A second spatial mode of appearance of validity is tres-passing, crossing over, in the double sense of becoming misplaced andcrossing the law. When trespassing, an individual relates to a place inthe form of not-where-he/she-ought-to-be. Abiding and trespassing arethe two basic ways of defining and distributing places within a range oflaw.

The concreteness of nomos explains, additionally, in what sensenomos has a reflexive structure, that is, why nomos is linked to a self-reference of community. Notice, to begin with, that a territory is notmerely a common place; it is deemed to be the common place of acommunity. Importantly, this sense of ownership precedes the notion ofownership that Arendt has in mind when opposing private places topublic places. Whereas the ownership of private places involves propertyrights, this more fundamental sense of ownership refers to the pri-mordial meaning of nemein as the self-closure of a community. In thissecond sense, ownership involves, on the one hand, the relation of aterritory to a collective agent, that is, a collective that, claiming to actas a whole, posits the boundaries of a territory, both those that close itoff from other territories and those that demarcate places within theterritory. On the other, it refers to the relation of a territory to a collec-tive as the community of individuals that are viewed as having a staketherein, that is, to the set of persons who are held to be interested partiesto the territory and its boundaries. Access to private property and topublic spaces is legally protected because it is claimed that thecommunity as a whole has a stake in the distribution of places made




available by the legal order, regardless of the specific places it assigns tospecific individuals under legally determined conditions.

The reflexivity thesis casts the distinction between public and privateplaces differently than Arendt does. For the one, the claim that a terri-tory is the common place of a polity implies that the manner in whichthis polity separates public from private places is itself held to becommon. In this fundamental sense, private no less than public placesare deemed to be common places. For the other, the distinction betweenpublic and private places, between a common and an individuals ownplace, in the restricted sense endorsed by Arendt, remains intact. Butwhereas, for Arendt, a public place fulfils its properly political role byproviding the scene that allows individuals, in the plural, to appearthrough word and deed in their unique distinctness, the reflexivity thesissuggests that public places do not owe their political priority so muchto being the scene of plurality as to being the locations where acommunity constitutes and maintains itself, in and through its plural-ity, as a unity, both spatial and personal. As opposed to private places,public places are common in virtue of being the locations of collectivesubjectivity and agency.

These considerations allow us, finally, to grasp the unity of nomos.As noted at the outset of this section, nemein denotes the act by whicha community closes itself as an inside over and against an outside. Andwe now know that to close off a space is to qualify this space as an ownterritory. Hence, by closing itself off as an inside with respect to anoutside, a community posits a territory as its own, and vice versa. Aninside and an own territory are two sides of the same coin. Moreover,this correlation explains why, as Arendt correctly notes, a territory isnot merely a geographical unity. Beyond the empirical fact that not allterritories are geographically contiguous, the essential point is that theself-closure of a polity involves a qualitative differentiation of space: thecommunitys inside is preferred to its outside.21 The correlation betweenan inside and an own place, and the preference granted to interiority,are constitutive for the spatial unity of nomos.

How are we to understand the mutual implication between an insideand a claim to an own place? A certain ambiguity in the notion of anown space highlights the fact that there are two different forms ofinside and outside. First, the distinction between the inside and theoutside of a political community is correlative to the contrast betweena communitys own territory and foreign territories, territories to whichother polities lay claim as their own. The opposition between internaland external affairs, which is the staple fare of nation-state politics,alludes to this contrast. Yet there is a second divide between an insideand an outside, which is correlative to the contrast between an ownplace and a strange place. The latter relates to individuals who are not




in-legal-place, yet are not simply misplaced in virtue of not being wherethey ought to be; instead, they are displaced, that is to say, they claima legal place of their own for which there is no place within the distri-bution of places made available by a region. Thus, different forms ofboundary-crossings are at stake: whereas misplacement trespasses aboundary, displacement transgresses it. Whereas trespassing rendersconspicuous the familiar unity of a totality of legal places as assigninga certain place to an individual, and which the individual does notoccupy, transgression renders conspicuous a region as a totality of legalplaces in which an individual has no place. Strange places reveal anoutside in a strong sense of the word, namely a where that is elsewherethan in the distribution of places laid out by a range of law. In thisstrong sense of an outside, all the boundaries of a legal order, includingthose that distribute places within a territory, are its external bound-aries. The ambiguity of nemein, which cannot include without exclud-ing, ensures that the commonality claimed for the boundaries of a rangeof law can always be subverted. Accordingly, the two manifestations ofthe inside/outside divide are mutually irreducible. The place from whicha foreigner comes, when entering a polity, need not be strange;conversely, a strange place need not be foreign: it can irrupt from withinwhat a political community calls its own place. This strong form ofexteriority could serve as the point of departure for a critical recoveryof Arendts notion of plurality.

The closing section of this article will examine how a polity can atall deal with the strong form of exteriority called forth by the reflexivestructure of nomos. First, however, we need to consider whether thisphenomenology of bounded space, however abridged, lends credence toArendts claim that the original understanding of nomos is a constitu-tive feature of political community as such.

4 Globalizing nomos

If, as noted at the outset of 2, Arendts defense of nomos seemsanachronistic and embarrassingly parochial to the contemporaryreader, this is above all because we live in an era that increasingly iden-tifies itself as the era of globalization. Whatever position one mightwant to take on the question whether globalization is a politicaldesideratum, a world state is a possibility that has come within thereach of humanity. From this perspective, a leading advocate of politi-cal globalization argues that borders, in the context of a world feder-ation, could only mean internal differentiation.22 In fact, to the extentthat these are mutually implicative terms, the elimination of an outsideentails the elimination of an inside as well. The emergence of a state




that encompasses the whole face of the earth would mark, so it seems,the demise of nomos.

Arendt counters this forbidding prospect with a lapidary dictum:Nobody can be a citizen of the world as he is the citizen of hiscountry.23 The advent of a world state would mark the end of citizen-ship, not a novel form thereof, and the end of politics, not a new phasethereof. A citizen is by definition a citizen among citizens of a countryamong countries. His rights and duties must be defined and limited, notonly by those of his fellow citizens, but also by the boundaries of a terri-tory (ibid.). Arendts defense of nomos in her Jaspers article rests onthe argument that whereas technology provides humanity with acommon present, this shared present does not spring from a commonpast, nor can it ensure a common future. Notice that, the perceptive-ness of this argument notwithstanding, Arendt again appeals to time tojustify the constitutive character of nomos for political community.Once more, Arendt fails to ground the necessity of nomos on its ownterms, that is, as a spatial concept.

The phenomenology of nomos outlined in the foregoing section doesprovide such a justification. In effect, the reflexivity thesis implies thatwhereas the divide between own and foreign territories is a contingentfeature of political communities, as we know them hitherto, the dividebetween own and strange places is constitutive for political communityas such. Arendts description of territoriality clears the way for thisreflexive reading of what Cornford called a range of law. Regardlessof the organizational principle that were to be adopted when foundinga world state, this novel political community would have to claim thatit holds sway over a common place. A world state would arise in theprocess of selecting certain interests as worthy of legal protection, andsetting boundaries that define where behavior ought or ought not totake place. Certainly, a world state would have no outside in the senseof foreign territories located beyond its reach, or at least not initially.But the inclusion and exclusion of interests required to institute the terri-tory of a world state would ensure that this polity harbors, at leastlatently, strange places in what it calls its own territory. Nemein, whichincludes and excludes, entails that also a world state would have anoutside in the strong sense referred to earlier. Accordingly, a world state,were it ever to be founded, would be a specific historical articulation ofnomos.

This insight allows us to justify Arendts claim about the topicalityof citizenship. Having asserted, in an earlier cited passage, that even inmodern conditions there is an elementary coincidence of freedom anda limited space, she drives home this point by noting that freedom ina positive sense is possible only among equals, and equality itself is byno means a universally valid principle but, again, applicable only with




limitations and even within spatial limits.24 Yet, the point is not somuch that a world state would dissolve citizenship into universal humanequality, as Arendt intimates, but rather that citizenship in a world statewould institute political equality, which, as she rightly contends, is notgiven us, but is the result of human organization insofar as it is guidedby the principle of justice.25 Because the genesis of political communityinvolves selecting certain interests as worthy of legal protection anddiscarding others as irrelevant, the world citizen is held to be committed,as a citizen, to the interests the world state claims to be common, henceto conserving the territorial integrity of this community by respectingthe boundaries that establish what counts as being in-legal-place.Accordingly, the institution of political equality in a world state evenone that claims to be a democracy under a rule of law that respects thefull array of civil and political rights inevitably opens up the possi-bility of instituting political inequality, such that world citizenship couldultimately be withdrawn from individuals who radically contest thepolitys claim to a common place. World citizenship no less thancitizenship in the Greek city-state, the Roman Empire, or the modernnation-state is necessarily emplaced citizenship.

Where, then, could individuals go, if they were to forfeit their citizen-ship in a world state? Although the two notions of exteriority introducedin 3 are mutually irreducible, political asylum is a means of connectingthem: by institutionalizing the possibility of obtaining abode in a foreignterritory, political asylum recognizes and calls attention to the existenceof strange places in what a polity claims to be its own territory. In otherwords, political asylum is a technique that uses the distinction betweenown and foreign places to counter the tendency of political communitiesto deny (the contingency of) the divide they set up between own andstrange places. A reflexive reading of nomos strongly endorses Arendtsplea in favor of a plurality of states, to the extent that this plea involvesa defense of political asylum and of the contingency of the spatial bound-aries of a polity. Relatedly, the realization of global freedom would beunimaginable unless the globe becomes a bounded region nomos on aplanetary scale. And this entails that freedom in a world state would bean ambiguous achievement: although global freedom, beginning with thefreedom of movement, would be unthinkable without the concrete distri-bution of places made available by a territory, this distribution of placesalso opens up the world state to the charge that freedom is elsewhere, inanother world. In short, no world state, whatever its political organiz-ation, could ever escape the latent possibility of secession and, concomi-tantly, the reinstatement of the distinctions between own and foreignterritories, citizen and foreigner.

Finally, the correlation between these two aspects of nemein obtainsits initial and primordial expression in citizenship. It is no coincidence




that the foundational act of a political community not only separatesan inside from an outside but also identifies who counts as a citizen.For a preference in the difference accrues as much to the personal asto the spatial aspect of nemein: by closing itself off as an inside overagainst an outside, a collective first and foremost makes place for theindividuals who, as members of a community, abide preferentially in itsterritory, i.e. who are the preferred bearers of rights and obligations.Accordingly, not only is citizenship always emplaced citizenship butcitizenship is also always the primitive but never innocent form oflegal emplacement. All other forms of legal emplacement are derivativethereof, the right to sojourn granted by a polity to foreigners residingin its territory no less than the myriad forms of legal emplacement inthe course of everyday transactions. The metaphorical sense ofinclusion and exclusion, respectively the ascription or withholding ofrights and obligations, beginning with those accruing to citizenship,implies the literal, spatial sense of inclusion and exclusion, and viceversa.26 A world state would be no exception to this state of affairs;what would distinguish its foundation from that of a nation-state is thatthe territorially preferential status of citizenship remains concealed untilsuch time as the spatial boundaries of this global polity are challengedfrom a strange place from without. In short, Arendts lapidary dictummust be inverted: one can only be a citizen of the world in the sameway that one is the citizen of a country.

5 Nomos and the politics of boundaries

To sum up, Arendts claim concerning the constitutive character ofnomos for political community is well founded, provided nomos is inter-preted in a reflexive key. No polity is possible that does not close itselfoff as an inside over against an outside. The corollary to this insight isthat no collective ever entirely succeeds in stabilizing the claim to a terri-tory as its own place. Ineluctably, every polity must engage with itsoutside by way of a politics of boundaries; Arendts fears notwithstand-ing, the emergence of a world state would not and could not mark thedemise of politics. I will conclude this article by looking more closelyat this politics of boundaries. My analysis will not be normative, or atleast not directly so. Instead, I propose to describe the basic features ofboundary-setting that condition the very possibility of dealing in differ-ent ways with a politys exteriority. In particular, attention must beshifted from nomos to nemein: how are boundaries posited?

Although, as noted, Arendt does not engage in a full-blown topo-genetic inquiry, her discussion of the foundation of political communitydoes provide a vital clue as to how boundaries are posited. Referring to




the significance of this foundational act, she notes that we are not bornequal; we become equal as members of a group on the strength of ourdecision to guarantee ourselves mutually equal rights.27 At the sametime that Arendts observation calls attention to the reflexivity inherentto the foundation of a community, it raises a pressing question: whatcriterion establishes who belongs to the we that decide to bandtogether and grant themselves mutual rights, beginning with thoseaccruing to citizenship? It will not do to suggest that this criterion isitself the object of a prior covenant, for this, of course, is to embark onan infinite regress.28 Arendt is well aware of this problem, and suggestshow action deals with it: every action, accomplished by a plurality ofmen, can be divided into two stages: the beginning which is initiated bya leader, and the accomplishment, in which many join to see throughwhat then becomes a common enterprise.29 She elsewhere returns tothe initial stage of foundation, asserting that in modern revolutions indi-viduals took the initiative to create workers councils.30 Although thesepassages do not refer specifically to boundaries, they suggest that theself-closure of a political community gets going when the initiative istaken to set boundaries. Boundary-setting begins as a taking.

At this point, a confrontation between Hannah Arendts and CarlSchmitts interpretations of nomos becomes inevitable, even though, asfar as I know, neither of the two referred, whether explicitly or impli-citly, to the others discussion of nomos. Schmitts defense of nomos, basedon the idea that law is a unity of order and emplacement, poses a radicalchallenge to legal and political thinking, including that of Arendt.31 Hischallenge stems not so much from the concrete spatiality of legal order something Schmitt has surprisingly little to say about as from hisanalysis of the act that founds a range of law nemein. Repeating almostverbatim Arendts definition of nemein, Schmitt notes that this Greekverb is usually taken to mean a sequence of acts whereby an initial actof division and distribution is followed by exploitation, i.e. a productiveuse and possession of what has been divided and distributed. Thisinterpretation, as he sees it, neutralizes the political content of nemein.For the sequence of acts that compose it begins earlier: in the same waythat distribution precedes exploitation, a taking precedes distribution.Not the distribution, not the divisio primaeva, but a taking is what comesfirst. For, he adds, no human being can give, distribute and apportionwithout taking.32 This primordial act is an appropriation, a taking ofland (Landnahme). An act that seizes land founds the law both inter-nally and externally: internally, by making room for the allocation ofownership and property relations, whether public or private; externally,by demarcating a political community over against other politicalcommunities. Schmitt does not hesitate to draw the implications of thisinsight for a politics of boundaries: all subsequent regulations . . . are




either a continuation of the original basis or a disintegration of anddeparture from the constitutive act of land-appropriation.33 This, hewould no doubt argue, is the unvarnished political content of Arendtsinsight that founding a community requires that someone take theinitiative.

A brief consideration of the treaties founding the EuropeanCommunity, arguably the contemporary core of what Schmitt calls theJus Publicum Europaeum, is of help in assessing his challenge. ThePreamble to the Treaty of Rome states that the parties to the treaty aredetermined to lay the foundations of an ever closer union among thepeoples of Europe. Crucially, while the six founding member statesclaimed to represent European unity, they had received no mandate tothis effect from all possibly affected parties, whether states or indi-viduals. The founding states are in fact the self-proclaimed representa-tives of European unity. By taking the initiative of founding theEuropean Community, the signatories take, seize, Europe, disclosing itas a common (internal) market and separating it from an externalmarket the rest of the world. To be sure, many, as Arendt puts it,may subsequently validate a land-appropriation, making it the point ofdeparture of a common enterprise. But even if all the members of thecommunity were to validate it, the land-appropriation that gives rise tothe spatial unity of a community is never only the expression of power,in the Arendtian sense of the human ability to act in concert, but alsoof force, in the sense of a marginalization, both physical and norma-tive, that lacks justification. To this extent, Arendt falls prey to Schmittscritique.

Schmitts point does not exhaust, however, the implications of thisconsideration for the way in which boundaries are posited. Notice thatalthough the preamble refers to a plurality of peoples, it also claims thatthere already was a union at the time of laying its legal foundation inthe Treaty of Rome, a community of peoples that, by virtue of theirshared interests, can go further together, engaging in a process of legaland economic integration. The wording of the preamble implies that theTreaty of Rome does not initiate the community of European peoples;the treaty claims to build on a prior closure, providing this communitywith an institutional setting and specific goals. Moreover, the Preambleto the Treaty of Rome views Europe as being itself already the productof an aboriginal cut that separates an undifferentiated space into twoplaces: Europe and the rest of the world. The datable act of positing theEuropean Communitys boundaries claims to derive from a closure lostin an irretrievable, undatable past.34

The Preamble to the Treaty of Rome aptly illustrates a generalfeature of the topogenesis of political community: power can only positthe empirically identifiable boundaries of a polity by educing these from




spatial boundaries that are not and never can be empirically identifi-able.35 Nemein deploys a representational dynamic in the strong, para-doxical, sense of the expression: a closure is constituted as the originalclosure through its representations. Hence, and Schmitt notwithstand-ing, there is no original spatial unity that, posited directly at the foun-dation of a community, can be distinguished from and opposed to itssubsequent representations. From the very beginning, spatial unity ispresented mediately, in and through its representations. In the same veinof thinking, a politics of boundaries does not rest, as Schmitt contends,on the simple opposition between an act that posits the boundaries ofa novel community and subsequent acts that maintain and secure thoseboundaries. If, as the Preamble to the Treaty of Rome shows, the actthat posits the boundaries of a novel community moves to maintain andsecure boundaries, the converse holds as well: the act of maintainingand securing boundaries posits them founds anew the spatial unity ofa community.

In the same way that Schmitts move to simply oppose an originalclosure to subsequent acts that maintain and secure it proves reductive,no less reductive is its corollary, namely that a politics of boundariesaims to preserve the separation of the own and the strange, as fixed inthe original land-appropriation. It is here, I believe, that Arendtsanalysis of the own and the strange, as it arises from her discussion ofstatelessness, develops a powerful, albeit oblique, rejoinder to Schmittspolitics of boundaries. If citizenship is the primitive form of emplace-ment, Arendt effectively reminds us that statelessness is the primitiveform of displacement. The crucial point is, as she sees it, that this situ-ation undermines the legal order. For a politics of boundaries thatreduces radical anomaly displacement to the anomaly a legal orderunderstands misplacement ends up by compromising nomos itself:in the process of preserving the claim to an own territory, such a politicsof boundaries renders this territory unrecognizable as the communitysown place.36 Although formulated with regard to statelessness, Arendtsinsight has a general significance for displacement. As I read her, Arendtcounters Schmitts politics of boundaries by observing that if thecommunitys own territory can become strange, this is because what hecalls the original Landnahme inscribes strangeness in ownness in thevery process of differentiating them: self-inclusion is coevally a self-exclusion.

This insight has two important implications, both of which pertainto the reflexive structure of nomos. The first concerns the inside/outsidedistinction. Although no political community can arise unless it closesitself off as an inside over against an outside, nemein ensures that fromthe very beginning community is also, albeit latently, outside theenclosure, as witnessed, among others, by heterotopic calls for another




Europe. This by no means implies that the boundaries separating andopposing inside and outside are illusory or merely relative; instead,boundaries call forth another experience of boundedness, namely theexperience of community being inside out. The second implicationconcerns the other aspect of the reflexive structure of nomos, namely acommunitys claim to ownership of a territory. That there is no self-inclusion without a measure of self-exclusion entails that the questionwho is an interested party to a territory and its boundaries is neverexhausted by any of the legal institutionalizations of spatial unity. Thereare always persons who can appear as having a stake in a politys terri-tory and its boundaries other than those who are identified as such bythe legal order. Here again, heterotopic calls for another Europe makeclear that at stake in the reconfiguration of a European nomos is notonly the inside/outside distinction but also the distinction betweencitizen and non-citizen.

Notice, moreover, that the problem of time has slipped into ourdiscussion of boundary-setting. Although Arendt is at pains to relatenomos to time, she does so in a way that justifies the former with refer-ence to a specific historical the early Greek interpretation of thelatter: immortality. This approach fails to justify nomos on its ownterms, i.e. as a spatial concept, and it also fails to connect the spatial tothe temporal unity of a polity, that is, to the self-constitution of acommunity as a unity of past, present, and future. Yet Arendt pointsthe way to a more radical understanding of the internal connectionbetween the spatial and temporal unities of a polity in a remarkablepassage of The Human Condition, which refers to spaces of appear-ances as predat[ing] and preced[ing] all formal constitution of thepublic realm and the various forms of government, that is, the variousforms in which the public realm can be organized.37 Arendt calls atten-tion to the fact that spatial unity, as founded in a legal order, leads back,both logically and chronologically, to a founding space a protospace,if you will. Think, for instance, of the places where individuals gatherto engage in acts of civil disobedience. No legal institutionalization ofspatial unity exhausts these protospaces, which ensure that the nomosof political community never simply coincides with its positivizationthrough an original Landnahme. Hence, Arendts remark must beconstrued strictly: The law can . . . stabilize and legalize change onceit has occurred, but the change itself is always the result of extralegalaction, that is, of action that, in the twofold sense of the expression,takes place outside of nomos.38 Protoplaces are displaced.

Granting the importance of this insight, the key question concerns,however, the temporal structure implicit in Arendts discussion of thetransition leading from a founding protospace to spatial unity asfounded in a legal order. Notice that Arendts analysis of this transition




interprets the foundation of a community as a simple temporal sequencegoing from beginning to accomplishment, such that both the unity ofspace and the unity of time unfold from and are guaranteed by anabsolute presence and present. Certainly, no sense can be made of newboundaries unless the act that posits them sunders the unity of foundedspace; a protospace announces itself as an initiative that comes fromelsewhere. But to disrupt the spatial unity of a legal order is not yet tofound a novel spatial unity. In this respect, the example of the Treatyof Rome suggests that the sequence going from beginning to accom-plishment is too simple; Arendts temporal analysis of foundation mustbe radicalized: nemein is an accomplishing initiation. On the one hand,an initiation takes on the form of an accomplishment because theoriginal self-closure of a community only becomes such afterwards, inand through the closures that accomplish it. This does not merely mean,as Arendt suggests, that the initiative that posits spatial unity requiressubsequent confirmations, but rather that, paradoxically, this initiativeis only possible as the accomplishment of an original self-closure original in virtue of not being directly accessible. Remember that thewording of the Preamble to the Treaty of Rome claims that there wasalready a European self-closure at the time of signing the treaty, yet aself-closure lost in an irretrievable past. On the other hand, the accom-plishment of a prior self-closure can only be seen as initiating spatialunity if it goes before community in the sense of anticipating a viableunderstanding of a common territory. Here again, the Preamble to theTreaty of Rome shows that the prior self-closure of Europe can onlybecome such in the future, through the workable anticipation of aunion among the peoples of Europe. Accordingly, all foundation is arefoundation, an act that, paradoxically, anticipates the past in thefuture. I would add that this anticipation of the past in the future is awager rather than a Schmittian decision, because positing the bound-aries of political community involves a reasoned initiative in the face ofintractable uncertainty about both past and future. For the past is morethan a smooth foil upon which an anticipated spatial unity can be retro-jected, and the future more than the projection of what constitutes acommunitys own place. A politics of boundaries is neither Schmittsrepetition of an original Landnahme nor the endless and effortlessconfirmation of an anticipated commonality. The structure of a wager,in which taking the initiative is inseparable from taking a calculatedrisk, explains why the foundation of political community involves notonly setting new boundaries but also grave concern with the stabilityand durability of nomos.39

These considerations suggest, finally, a response to Schmitts thesisthat the history of a political community progressively unfolds ordeviates from the inner measure of an original, constitutive act of




spatial ordering.40 As Schmitt also puts it, no community can givewithout having taken. In a sense, Schmitts argument is indisputable.But the paradoxical temporality of nemein dislocates the simpletemporal sequence going from taking to giving, from an original Land-nahme to the distribution of rights and places, whether public or private.Indeed, Schmitts epigram, what comes first is a taking, is only correctwhen sharpened into a paradox: what comes first is a retaking. Becausea community has no direct access to its spatial origin, the boundariesof nomos are posited in an act that, distributing rights and places, antici-pates who and what had been included and excluded by the originalself-closure. This, precisely, is what it means to give. In this give andtake, a politics of boundaries separates and joins what lies insideand outside the nomos of a political community.

Faculty of Philosophy, Tilburg University, Tilburg, The Netherlands

Notes

I appreciate helpful suggestions by my colleagues at Tilburg, Rafael Baroch, LuigiCorrias, David Janssens, Bart van Klink, Frans van Peperstraten, and Bert vanRoermund. I am particularly grateful to Andrew Schaap, who offered in-depthcommentary on my interpretation of Arendt, and to Mireille Hildebrandt forher comments on the notion of jurisdiction. My address is Associate Professorof Legal Philosophy, Tilburg University, Faculty of Philosophy, post box 90153,5000 LE Tilburg, the Netherlands and my email: [email protected]

1 Hannah Arendt, Was ist Politik? Fragmente aus dem Nachla, ed. UrsulaLudz (Munich: Piper, 2003[1993]), p. 122; hereinafter cited as WiP.

2 Hannah Arendt, The Origins of Totalitarianism (New York: HarcourtBrace, 1951), p. 286; hereinafter cited as TOT.

3 Seyla Benhabib, The Reluctant Modernism of Hannah Arendt (ThousandOaks, CA: Sage, 1996), p. 200. See also Jrgen Habermas, The StructuralTransformation of the Public Sphere: An Inquiry into a Category ofBourgeois Society, trans. T. Burger and F. Lawrence (Cambridge, MA: MITPress, 1989). Another commentator characterizes Arendts work as aphenomenology of the public sphere (emphasis added). See Dermot Moran,Introduction to Phenomenology (London: Routledge, 2000), pp. 287ff.

4 F. M. Cornford, From Religion to Philosophy: A Study in the Origins ofWestern Speculation (New York: Harper Torchbooks, 1957), p. 30, citedby Hannah Arendt in On Revolution (Harmondsworth, Mx: PenguinBooks, 1990[1963]), pp. 1867; hereinafter cited as OR.

5 Cornford, From Religion to Philosophy, p. 30.6 Hannah Arendt, The Human Condition (Chicago, IL: University of Chicago

Press, 1958), p. 63, n. 62; hereinafter cited as HC.


PSC



7 ibid., pp. 634.8 Arendt, WiP, pp. 10922.9 ibid., pp. 11415.

10 See Jacques Taminiaux, Athens and Rome, in Dana Villa (ed.) TheCambridge Companion to Hannah Arendt (Cambridge: CambridgeUniversity Press, 2000), pp. 16577.

11 Arendt, WiP, p. 119. See also Arendt, HC, p. 198. The argument thatnomos allows human relations to remain surveyable is vintage Aristotelian-ism. When considering the ideal size of a city-state in Book VII of thePolitics, Aristotle asserts that the same thing holds good of the territorythat we said about the size of the population it must be well able to betaken in at one view [eusunoptos]. See Aristotle, Politics, trans. H.Rackham (London: William Heinemann, 1944), vol. 23, 1327a. I amgrateful to David Janssens for pointing out this connection to me.

12 Arendt, HC, p. 21. See also Arendt, WiP, p. 46.13 Arendt, OR, p. 275.14 Arendt, HC, p. 195.15 Cornford, From Religion to Philosophy, p. 30.16 Arendt, HC, p. 183.17 Arendt, WiP, p. 100. Significantly, Arendt uses this expression only rarely,

not least because of her distrust of any form of politics premised on theunity of a political community. But the distinction between democratic and,say, totalitarian politics cannot be posed in terms of a simple and massiveopposition between plurality and unity, but rather in the manner in whicha polity deals with the inevitable claim to unity which constitutes it as acommunity. Arendt points in this direction in the final chapter of Life ofthe Mind, when linking the exercise of freedom to the emergence of a first-person plural, a We. See Hannah Arendt, The Life of the Mind/Willing (SanDiego, CA: Harcourt, 1978), pp. 2001; hereinafter cited as LOC.

18 It may remain an open question, for the purpose of this article, to whatextent Arendts description of action addresses the issue of collectiveagency. While her references to power and acting in concert no doubtevoke this issue, intersubjectivity and collective subjectivity tend to runthrough each other in her analyses of action. Whatever the standpoint onemay want to take on this general point, it is in any case safe to assert thatArendt does not elucidate nomos in terms of the reflexivity of collectiveagency. It is noteworthy in this respect that when Arendt takes up thegenesis of political community in a reflexive key, she passes over in silencethe genesis of spatial unity: The only trait that all these various forms andshapes of human plurality have in common is the simple fact of theirgenesis, that is, that at some moment in time and for some reason a groupof people must have come to think of themselves as a We. See Arendt,LOC, p. 202. For a powerful analysis of collective agency and politicalreflexivity, see Bert van Roermund, First-Person Plural Legislature:Political Reflexivity and Representation, Philosophical Explorations 6(3)(2003): 23552.

19 Seyla Benhabib, Models of Public Space, in Craig Calhoun (ed.) Habermasand the Public Sphere (Cambridge, MA: MIT Press, 1993[1992]), p. 77.




20 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil(Harmondsworth, Mx: Penguin, 1994[1963]), p. 262.

21 As Waldenfels puts it, the act of separating an inside from an outside bringsabout a preference in the difference. See Bernhard Waldenfels, Viel-stimmigkeit der Rede: Studien zur Phnomenologie des Fremden 4(Frankfurt: Suhrkamp, 1999), p. 197.

22 Otfried Hffe, Demokratie im Zeitalter der Globalisierung (Munich: C. H.Beck, 1999), p. 303. Similarly, albeit in another context, Habermas, in anarticle co-authored by Derrida, expresses the hope of an internal worldpolitics. See Jrgen Habermas and Jacques Derrida, Nach dem Krieg Die Wiedergeburt Europas, Frankfurter Allgemeine Zeitung, 31 May2003, 334.

23 Hannah Arendt, Karl Jaspers: Citizen of the World?, in her Men in DarkTimes (San Diego, CA: Harcourt Brace, 1993[1955]), p. 81. See alsoArendt, HC, p. 257.

24 Arendt, OR, p. 275. For a similar statement, see Arendt, WiP, pp. 401.25 Arendt, TOT, p. 301. See also Arendt, OR, p. 31.26 This insight would be the point of departure of a critical examination of

the attempt to despatialize the notion of a public sphere. For the one, therights to freedom of expression and association, which are essential to thefunctioning of a public sphere, are thoroughly topical; for the other, apublic sphere presupposes privileged bearers of these rights the citizensof the polity. A background question, which requires treatment in aseparate paper, is how Arendts reference to a right to have rights (TOT,p. 296) can be interpreted in the light of a reflexive reading of nomos. Forcontributions to this issue, see Frank Michelman, Parsing a Right to HaveRights, Constellations 3(2) (1996): 2008; Seyla Benhabib, Citizens,Residents, and Aliens in a Changing World: Political Membership in aGlobal Era, Social Research 66(3) (1999): 70944; and Seyla Benhabib,The Rights of Others: Aliens, Citizens and Residents (Cambridge: CambridgeUniversity Press, 2004).

27 Arendt, TOT, p. 301. For analyses of foundation in Arendt, see, amongothers, Bonnie Honig, Arendt and Derrida on the Problem of Founding aRepublic, American Political Science Review 85(1) (1991): 97114, andAlan Keenan, Promises, Promises: The Abyss of Freedom and the Loss ofPolitical World in the Work of Hannah Arendt, Political Theory 22(2)(1994): 297322.

28 I am indebted here to Bert van Roermund, who has exposed a comparableproblem in Jrgen Habermas discourse principle. See Bert van Roermund,Law, Narrative and Reality: An Essay in Intercepting Politics (Dordrecht:Kluwer Academic, 1997), p. 151.

29 Hannah Arendt, Personal Responsibility Under Dictatorship, in herResponsibility and Judgment, ed. Jerome Kohn (New York: SchockenBooks, 2003), p. 47. This passage effectively deconstructs the sharp oppo-sition Arendt elsewhere sets up between representation and action andparticipation. See Arendt, OR, p. 273. For, to initiate community, a leadermust claim to act on behalf of a group. A representational act lies at theheart of action and participation.




30 Arendt, OR, p. 278.31 Einheit von Ordnung und Ortung. See Carl Schmitt, The Nomos of the

Earth in the International Law of the Jus Publicum Europaeum, trans.G. L. Ulmen (New York: Telos Press, 2003[1950]), p. 42 (translationaltered). For the record, Arendt does mention Schmitt in TOT, referring,among others, to his ingenious theories about the end of democracy andlegal government (TOT, p. 339, n. 65). Schmitt, for his part, mentionsArendt sporadically in his writings, albeit without a specific reference toher analysis of nomos. For a general analysis of the relation between Arendtand Schmitt, see William E. Scheurman, Revolutions and Constitutions:Hannah Arendts Challenge to Carl Schmitt, in David Dyzenhaus (ed.)Law as Politics: Carl Schmitts Critique of Liberalism (Durham, NC: DukeUniversity Press, 1998), pp. 25280.

32 Nomos-Nahme-Name, in Carl Schmitt, Staat, Groraum, Nomos:Arbeiten aus den Jahren 19161969 (Berlin: Duncker & Humblot, 1995),pp. 57391. See also Nehmen/Teilen/Weiden, in Carl Schmitt, Verfassungs-rechtliche Aufstze aus den Jahren 19241954 (Berlin: Duncker & Humblot,1958), pp. 489504.

33 Schmitt, Nomos of the Earth, p. 78 (translation altered).34 See my Inside and Outside the EUs Area of Freedom, Security and

Justice: Reflexive Identity and the Unity of Legal Space, Archif fr Rechts-und Sozialphilosophie 90(4) (2004): 47897.

35 Returning to Arendts argument that a bounded space keeps humanrelations surveyable (see n. 11), the surveyability of these relations, as wellas of the boundaries introduced by nomos, depends on a presupposedspatial unity that is empirically unsurveyable, regardless of the size of theterritory.

36 Arendt, TOT, p. 286.37 Arendt, HC, p. 199.38 Hannah Arendt, Crises of the Republic (New York: Harcourt Brace

Jovanovich, 1972), p. 80 (emphasis added).39 Arendt, OR, p. 223.40 Schmitt, Nomos of the Earth, p. 78. Notice that this passage effectively

conjoins the two terms the Sophists sought to oppose, namely physis andnomos, nature and convention.




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