Hamacher. On The Right To Have Rights. Human Rights, Marx and Arendt

On the Right to Have Rights: Human Rights; Marx and Arendt
Author(s): Werner Hamacher, Ronald Mendoza-de Jess

Source: CR: The New Centennial Review, Vol. 14, No. 2, Law and Violence (Fall 2014), pp. 169214
Published by: Michigan State University Press
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On the Right to Have Rights

Human Rights; Marx and Arendt
Werner Hamacher
Professor Emeritus, Goethe-Universitt, Frankfurt am Main, Germany
Translated by Ronald Mendoza-de Jess
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 constituted society. From this follows Aristotles definition of the human as an
essentially political animala zo o n politikon. This definition would become 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 constitutive indifference and its structural neutrality over and against political matters. Nobis . . . nec ulla magis res aliena quam publica. Unam omnium rem publicam agnoscimus, mundum (No thing is more foreign to us
CR: The New Centennial Review, Vol. 14, No. 2, 2014, pp. 169214. ISSN 1532-687X.
2014 Michigan State University. All rights reserved.

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than public matters. We acknowledge one public thing, the world).1 These
two sentences from Tertullians Apology (197 AD)that Christians could not
be more foreign to the public matters of the Roman Empire; and that, moreover, 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 sentences contained a declaration of independence over and against the prerogatives of the political and introduced a distinction in the essential determination 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 publica, 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 statesociety 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), following 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 worldholo 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 nationstate, 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.

Werner Hamacher
However, in the heretic and Reformation movements of Christendom,

no less than in its dogmatic and orthodox tendencies, the claims to the
universality of faithand indeed of a faith that insisted in the primacy of
the inner sociality of the faithfulled 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 process. By way of its paradoxical conformism, the Protestant Reformation
contributed to the democratic revolutions from the sixteenth to the eighteenth century, and to their principle of universal equalitythat is, the
principle of the immediacy of the socialthe only principle that is thoroughly 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 Hobbess construction 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 describes it in his account of North American affairs. This alliance is the basis for
Marxs 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).
II.
Marxs 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 humanpostulated as sovereign in
the contemporary political orderas a mere phantasy image and as a
dream whose realization could only be first brought about by social transformations: 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

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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 beingeach 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 structurally 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 existence, can be realized as a social- and species-being. Christendom proves
itself to be the form of universal relationality, insofar as it produces democracy as its political correlate, and democracy attests to its Christianity, insofar 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 confession among other equally valid confessions. Within democracy as the politicized 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 emphasizes, is the atheistic state, the democratic state (36). The secularization of Christendom will not be accomplished through the statization of the
churchs 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 (3940). According
to Marxs argument, since the state disregards the religion of individuals and

Werner Hamacher
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 politicaland indeed state-politicalbut 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 religion 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 society, 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. Democracywhich is structurally
Christianonly 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
Dclaration des droits de lhomme et du citoyen (Declaration of the Rights of Man
and of the Citizen), from 1791 and 1793, and of the Constitutions of Pennsylvania 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 statecitizen 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 lhomme 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

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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 fundamental right to property of the states 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 rightinsofar as it is a rightcan 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 states
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 privilege of economy and through economic privileges. The aforementioned explanations 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 community 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 democratic politics is de facto a structural antihumanism and, essentially, a disguised particularism.
Marx cites the second article from the Dclaration des droits de lhomme et
du citoyen from 1793the most radical, as Marx himself calls it. Ces droits etc.
(les droits naturels et imprscriptibles) sont lgalit, la libert, la sret, la
propriet (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 libert est le pouvoir qui appartient a` lhomme de
faire tout ce qui ne nuit pas aux droit dautrui (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

Werner Hamacher
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 counterconcept, 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 freedoms actuality but instead its limitation.
The unhindered realization of sociality as constitutive of the human is declared 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
lautrui (the other)whose freedom this delimitation to right is supposed to
protect, is the other only as the dissociated human who comes into consideration 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 dautrui (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 gr)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 withdrawal 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

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

through competing property and profit interests. Consequently, in its selfdeclaration, 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 Dclaration des droits de lhomme et du
citoyen of 1791, which declares that Le but de toute association politique est la
conservation des droits naturels et imprscriptibles de lhomme (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 themselves 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 securityla sretto 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
statethe legislative, the juridical, and the executivecoalesce, 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

Werner Hamacher
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 institutionsabove all,
human and citizen rightsare stabilizers of this difference. They are thus, in a
highly paradoxical manner, stabilizers of a progressive dissociation.
If societythe source of every legitimationhas become itself in need of
legitimation, and if the only instance of legitimation that can take responsibility 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 particular interestsits person, its rights, its propertythen this society can
only be a self-protection agency, and each individual stands obliged to support 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 characterizes the human at the same time as a function of self-protectionwhich the
human accomplishes with the help of human rightsand as a function of the
state-guaranteed and police-enforced legality (Rechtmigkeit) of its existence. 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

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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 rightsand thus it
guarantees no society.
On Marxs reading, the universal human rightsequality, freedom, security, propertyare the rights of a generalized policeman, which each individual 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 antisocietal-atheistic. On the basis of these human rights, politics can only be a
national and international police-politics that splits society into the economically 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 themselvesthe 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 prognoses authorize no conclusion on the lack of cogency of the analyses that
underlie them.
III.
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

Werner Hamacher
freedom; they do not secure societys sociality, but instead its segregation and
dissociation; they do not secure security, but instead merely its appearance,
and, above all, [they] secure itsat times accelerated, at times haltedcollapse. 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 Marxs
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 institution 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 [uerlich macht] all national, natural, moral, and theoretical human relations, (41) and removes all
historically variable elements from the humans 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 Husserls concept of phenomenological reduction, as a juridico-political reduction, as the reduction of the human to its
function within a state-constituted community (Gemeinwesens), as the reduction 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

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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 consummated (vollendet) in the establishment of the individuals 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 together through a prestabilized harmony but who are instead driven apart
from each other through enmity; each individual (Einzelne) is not an individuum (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 universals 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

Werner Hamacher
what will become of this essence itselfof both separation and of community
and of its unessence (Unwesen). This indeterminacy still belongs to the situation 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 Marxs
polemic in On the Jewish Question, Hannah Arendt describes the consequences
of this legal-logical alliance in her 1951 book, The Origins of Totalitarianism. According 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 historicoempirical instances and their opportunistic principles of activity, and to entrust 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 (uerlichen), contingent guarantor powers and are exposed to their
arbitrariness: an arbitrariness that in principle can work toward suspending
(auer 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, 36984).13
The loss of human rights, which was programmed from the very beginning
through their structural fusion with the citizen rights of nation-states, became a political mass phenomenon, at the latest, since the beginning of the
First World War. Through denaturalization laws, the partial or full misrecognition of citizen rights, expulsions, and deportations, through forced exile and
the refusal of the right to asylumall of which were decreed and carried out
by sovereign nation-statesmillions of statelessand, thus, of citizenless

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and human-rightslesspeople 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 Arendts 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) (35556 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 assaultincluding any presumed assaultto the integrity of the private person or of the nation-state, and they allowed nationstates to secure this wholly imaginary construct of integrity through the
deprivation of the rights (Entrechtung) of detrimental or threatening individuals or groups. The revocation of citizen rights and the concomitant revocation 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 admitted as the thirtieth and last article of the Declaration the following sentence: 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

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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 human 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 interests of the state, to either adopt human rights as the measure of political
decisions or to disregard or to reject them altogether: human rights themselves 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 migrs 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.
IV.
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 fundamental 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 ones actions and opinions) and a right to

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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 become identical with expulsion from humanity altogether. (2004, 37677)
To clarify the most far-reaching implications of Arendts 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 operationor rather,
as the continuous possibility of such an operationthat 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 realizablethereby becoming destructible at the same timeas the rights of all humans and, consequently, as the rights of humanity. Human rights have come to their end
because they could only be valid in a common world, but this worldwhich is
unique, homogeneous, and closed offoffers no world law and no right to a
world; instead, it offers only an aggregate of state-citizen rights that, as security 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 (Heimatvertriebene) 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 juridification of the world, does not leave anymore a free place where the loss of citizen
rights would not drag human rights with ithence, 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 produce abstract humans without world and an abstract world without humans.

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It was only later that Arendt would draw the implications of her observations and speak of the end of human rightsand, 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 Brochs 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 essays 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 mentioned 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 community 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 attention (Arendt and Brock 1996, 118).18 Before rewriting the essay into a book

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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. Arendts 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 transcendence of a future in which the one and only human right could be enforced. In
place of the essays confidence that the one human right could find a guarantor 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 idealistic bond: For it is quite conceivable, and even within the realm of practical political possibilities, that one fine day a highly organized and mechanized
humanity will conclude quite democraticallynamely 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 organization 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 history, 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.

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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 depoliticization, 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 rightor 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 political and legal theorists to exegetical uncertainties that cannot be corrected
easily, since this characterization, in keeping with Arendts view on the matter, 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 collectivelyand, in this sense, politicallyabout the political order of a community (Gemeinwesens). Thus, for Ar-

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endt, the formula the right to have rights primarily states that politicsand,
more precisely, the claim to politics, the demand that there may be something
like politicsprecedes 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 Arendts formula,
which, on the one hand, refers to a legally formed claim (rechtsfrmigen
Anspruch) and, on the other, to an already posited right.24 These two concepts
are mediated by a teleology that Arendt apparently did not noticeor at least
did not comment uponwhich 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, suggesting 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 (Rechtsfrmigkeit) 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 (Vermgen) to decide on common
action through the establishment of legal orders (Rechtsordnungen) of communality. 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

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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 (naturwchsig) nor derived from pregiven moral representations or preformed in logical categories. As a result, all of these would
become conditions of that unconditional right, which, on its part, defines 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 definition of what a humanin accordance with nature or its essenceis 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
bookit 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, Arendts 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 (Bestimmungsfhigkeit) of this right and must thereby annihilate it. To such definitional restrictions 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 dignitywhich Broch places at

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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 totalitarianism (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 humans 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 validityfrom this follows
that this right only shows itself in its loss. We only know that there is something 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 futureonly 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 itselffuture 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 (Unvermgen) 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

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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 subjectit cannot
be a subjective or an objective rightinstead, 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 protopolitical 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 graspablesince it is in this
sense ultra-universalit can only do justice to the plurality of other and still
other claims as the claim to further determination (Weiterbestimmungsanspruch). 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 andas this fore-right of liberationit is not
merely the right to have rights but also to concede (zuzusprechen) this same
right to others and to leave (berlassen) 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 Rechtsfhigkeit) 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 determinationnot an already given,
already arrived community, but one that is each time still to come. Before all
rightsand even above and beyond all possible rightsthis assent, which
Arendt calls right, is the granting (Gewhrung), and, as this granting, the only
warrant (Gewhr) 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.

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Third, these comments expand on the scarce explanations that Arendt

gives of the right to rights. They follow from the blueprint of her argumentation, 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 observations. 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 speaking 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 determination 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 languagewith the
means of the language of judgment and of decision. Only predicative sen-

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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 rightscan 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 rightsaccording to Arendt, a world-historical breakis 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 community, without anybody having forfeited this claim through political declarations 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 stabilityconsequently, [it must have discarded] every nonconfirmative and unstable comportment. 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, reduced language to acts of judgment, and eliminated its political relevance. If
the polisas Arendt assumes with Aristotlewas ever the place, free of definition (definitionsoffene), of the being-human in the sense of the speakingbeing, 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

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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 preand trans-predicative movement that is not secured by any legal structures
and judgment structures.
Only the disjunction between politics and languagewhich Arendt described but did not thematize properlyrenders 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 Greeceto which Arendt explicitly refers
toward the end of the chapter on human rights in her study on totalitarianismit has become customary, through ostracism, exile, proscription, or
excommunication, to ban out of a community (Gemeinwesen) all the individuals 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 legalformity (Rechtsfrmigkeit) of all social relations can justify in principle increasingly 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 (Rechtsversagungsrecht), 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

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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 (auer 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 organized and mechanized humanity that will conclude quite democraticallynamely by majority decisionthat for humanity as a whole it would be
better to liquidate certain parts thereof (2004, 379).
If a juridico-political decisionwhether it is brought about democratically or in any other wayis, 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 proceeds 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 Politikfhigkeit), 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 (Rechtsfrmigkeit)
of social relations and the privilege of the language of judgment that it concomitantly installs, politics has become structurally an automatism of selfexclusionnamely, 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 judgementunderstood in a strict senseon their existence.
With the reduction of political existence to a juridical one and the disjunction
between juridical and linguistic existence, the Aristotelian definition of beinghuman as dependent on the exercise of its linguistic as well as its societyforming potentiality has become historically obsolete.

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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 ones actions and
opinions (376). Where this judgment follows a rule, as it must to have universal legal validityfor the law is a rule of judgmentand where political
evaluation exhausts itself by proceeding in accordance with rules of judgment, or by judging over these rules, language as a whole is reduced to
consensuses and consensual arguments or to refutations and refuting arguments, 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 securityit may be the whole of
humankinddemands it from the position of the barbarians, of those who
are excluded from the community. What remains from an existence that has
been juridically evacuatedwhether inside or outside of constituted societiesis the barbarized, rightless humankind, which is excluded from the
forms of the political, from the world of allegedly open lingual action, removed, 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 languageunconstrained
by any determined linguistic formand 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;

Werner Hamacher
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 (Sprachund 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, 61920). This being-human (Menschsein) 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

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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 (nichtreprsentierende) 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 language of judgment and of reciprocal evaluation that, according to Arendts
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 different in general, then it must be different even from the categorical
universality of a genre, a type, or a form, which lets identifiable individualbeings 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 possibilitization that, concomitantly, brings within itself their impossibilitization
(Verunmglichung). 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

Werner Hamacher
functionary of prospective rights, counterfactual ideals, or even only have a consistent figure (Gestalt) upon which its potentiality (Vermgen) 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
Arendts philosophy: Initium ut esset, creatus est homothat 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 ttigen 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 decisionwhich command every sphereare not
valid. Only the language of a claim on the other side of legal claimsthe language
of a mere desire for community that precedes each already-constituted communitycan be the beginning of the constitution of a community and preserve 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 coherencebefore the cum of a
communitas and its rules of communicationthen each community that is

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opened with it can only be, in turn, a beginning of other beginnings, a community 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 themmay it be the name
community or society.
The language of the beginning and of the breaching of the way (Anbahnung) 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 connected with something else or not. The right to have rightsand, first of all,
political judgment-rightsif 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. Aristotlewho, in his Politics (1253a), formulated the
double determination of the human as a political living being in command of
languagenames, in Peri herme neias (On Interpretation) (17a), the euche the
petition, the prayer, the desire, the request, the claim, or the exigencyas 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 exigencyit can also be said in this
waydoes 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,

Werner Hamacher
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 meontologyof 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 clo
(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 ousia), 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 lamentationwhich exceed every judgmentbelong to the language of rhetoricians, whose quest for persuasion and conviction could become an element of political or juridical deliberation without already belonging to the language of evaluation or of decision. In The Human Condition,
Arendt gave at least one indication of this nonpredicative language (1958,
2627, n. 8). Even before any possibility of a concordance with others, this
language enounces (bekundet)but it does not expressthe 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.

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Only because the language of the political, indefinite existenceand thus

of the political in-existencespeaks 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 counterpart and sets it loose as that which has abandoned the realm of existence or
can never enter it. This language constitutes the common actuality (gemeinsame 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 undetermined plurality of others, to which it exposes itself. Only in virtue of this
language of the absolute singular existencethe absolutely unique individualityis 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 possibilitates 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 absoluteof the singularized, underivable, unconditionalclaim
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
upalso, 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 prayeras 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 conditions of nonpredicative languageand those are the conditions of protopolitical 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

Werner Hamacher
relations secured through property relations; the existence deprived of property 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 Tertullians mundusthey 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
worldfree 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 communality 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 structurallyand hence ad infinitumopen to further

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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 undecidabilities. Each determinationand, first of all, the determination of the
humancan only be a determination toward further determination, each determination 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, judgmentdecisions 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 claimwhich 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
formonly 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 .
NOTES
Throughout the translation, I have tried to replicate the rhythm of Hamachers thinking at
the expense of adopting the more abbreviated syntactical structures that characterize

Werner Hamacher
contemporary academic writing in English. Translation decisions that call for some justification 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 Hamacher 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 bibliographical details indicated with a note immediately following Hamachers own notes. I want to
thank Mara del Rosario Acosta, David Johnson, and Werner Hamacher for giving me the
opportunity to translate this essay. The translation benefitted immensely from Hamachers
own suggestions, and, above all, from the insighftul revisions of Mauricio Gozlez 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.
Tertullians argument is explicitly based on Jesuss instruction in The Gospel of Matthew
22, 21: Render therefore unto Caesar the things which are Caesars; and unto God the things
that are Gods (Blaney 1769.) With this, the disjunction between political and religious
community is accomplished: to the former, taxes are due; to the latter, something completely 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 kosmopolites, 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:

z
z
,

" $

%

(First, I thank my God through Jesus Christ for you all, that your faith is spoken of throughout 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 Hamachers 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 structurally 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 connotations 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 clmre, which means to cry out, to declare, to call

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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 Jellineks study, see the earliest edition Zur Geschichte der Erklrung der Menschenrechte (On the History of the Declaration of Human Rights; untranslated), Schnur, 1964. For further developments of Jellineks thesesparticularly concerning
their influence on Max Weberand 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 foreright. 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 Hamachers
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 whatsoevera 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

Werner Hamacher
verb scheidenwhich means to divide, to part, or to departand 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, 23049. 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, 6769. 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), 394410 (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, 1416 (Correspondence
19461951; 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 Brochs 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 Brochs support for this reason. Brochs
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 recommendations for the establishment of an International Criminal Court. See Broch 1978, 24376 and
the commentary of the editor Paul Michael Ltzeler, 27677 (Political writings; untranslated). In view of these circumstances, it is likely that Arendt wanted to support Brochs
intervention with her essay, in spite of her reservations. Broch thanks her in a letter from

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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 Brochs text on human rights. The manuscript bears a slightly different title, Bill of
RightsBill 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 Arendts 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 Arendts The
Origins of Totalitarianism published by Schocken Books (2004) contains passages that
correspond to the citations from Arendts early essay that Hamacher quotes here. These
passages appear in the second appendix to this new edition of Arendts 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 Arendts earlier essay were not included in The
Decline of the Nation-State and the Ends of the Rights of Manthe 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 Arendts study on totalitarianism. Nonetheless, the publication history of Arendts chef doeuvre confirms Hamachers 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 books ending by expressing her dissatisfaction with the
inconclusive character of her studys original conclusion: The book originally ended with
certain suggestive but consciously inconclusive Concluding Remarks that are now replaced 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 arguments 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 Arendts
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, legalistic approach to the issue concerning the political correlate to the right to have rights. This

Werner Hamacher
would confirm Hamachers claim that Arendt herself saw the limits of her earlier understanding 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 Arendts 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 Aristotles 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 relationship (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, Khler, and Bachmann 1999 (The Right to Human Rights; untranslated); Benhabib 2004; and Menke 2007, 73962.
24. [The German adjective rechtsfrmigen is translated as legally-formed. Similarly, the noun
Rechtsfrmigkeit 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 Brothers dictionary points
out, the German word Frmigkeit has affinities with the Latin noun parilitas, which means
parity and is often used in German preceded by the prefix gleich- in the word Gleichfrmigkeit, 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

209
210
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 Hamachers 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 Gonzlez 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 passages 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 Arendts 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 translators 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

Werner Hamacher
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 corresponding 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 asylumnote: the right to the searchand 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 remainin their earliest and in every still possible
formulationrights to the refusal of human rights. [For the German version of the Universal Declaration of Human Rights that Hamacher cites here, see Bruno and Fastenrath 1979.]
31. In many respects, Giorgio Agambens Homo Sacer studies follow Arendts insights, undertaking the attempt to identify paradigmatic figures (Gestalten) of a form of life that
emerged with the collapse of juridical assurancesincluding those of human rights. With
the recourse to the Aristotelian concepts of form and of potentiality (Vermgen), Agambens 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 impotentialitywithout 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: & ' '
' $ $(
) * ' $ + - .
)
/$ $%, 1% (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 ones 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 Gonzlez Rozo for his help tracking
down this passage in the original Greek.
35. See note 4.

211
212
36. [The translation of Fortbestimmung as trans-determination is unfortunately one sided,

and in a way that anybody familiar with Freuds 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 determination 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 morphe: 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 Hamachers guidance on how to
translate this term.]
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Hamacher. On The Right To Have Rights. Human Rights, Marx and Arendt

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On the Right to Have Rights: Human Rights; Marx and Arendt

Author(s): Werner Hamacher, Ronald Mendoza-de Jess

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On the Right to Have Rights

Translated by Ronald Mendoza-de Jess

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On the Right to Have Rights

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However, in the heretic and Reformation movements of Christendom,

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On the Right to Have Rights

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On the Right to Have Rights

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

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On the Right to Have Rights

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

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On the Right to Have Rights

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On the Right to Have Rights

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On the Right to Have Rights

and human-rightslesspeople were pushed into a world that offered them no

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On the Right to Have Rights

belong to some kind of organized community, only when millions of people

To clarify the most far-reaching implications of Arendts decisive reflections,

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On the Right to Have Rights

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On the Right to Have Rights

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decision on a common world, everything that belongs to this world must

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On the Right to Have Rights

the center of his Remarks to an International Bill of Rights, to which the

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On the Right to Have Rights

Third, these comments expand on the scarce explanations that Arendt

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On the Right to Have Rights

movement. Human existence is henceforth not anymore graspable as an a

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exclusion from a legal community; it decides, therefore, in accordance to

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On the Right to Have Rights

Arendt describes the self-exclusion of political humanity through the law

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On the Right to Have Rights

general, representing nothing but his own absolutely unique individuality

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