The Decline of the Nation-State and the End of the Rights of Man

Here is the reading for Saturday, February 27.  We will meet here at 4:30.  A printable copy can be found here.  Try to print your own copy or bring a mobile device.

This chapter of The Origins of Totalitarianism describes how millions of Europeans in the 20th century lost all semblance of human rights, and more so, how the concept of human rights became hollowed out.  Stateless, rightless people are basically homeless people, except on a global scale; they are accepted no where and protected only by laws of exception, which typically proved ineffective.  They have lost any identity beyond merely human; they have no nationality, no culture, no community to fall back on—and unfortunately for these people, the bare human is the most contemptible human.

  1. The “Nation of Minorities” and the Stateless People

The first section of this chapter is a history of the stateless person.  The years between the beginning of World War 1 and the end of World War 2 completely changed Europe; most relevant here are the massive migrations of people who were neither welcome nowhere; “once they had left their state they became stateless; once they had been deprived of their human rights they were rightless, the scum of the earth.”  Even aside from the rise of totalitarian governments, WWI and its consequences showed the “hidden frame” of European civilization.  There were entire groups of people for whom the rules of the surrounding world simply did not apply.  Minorities and the stateless “had lost those rights which had been thought of and even defined as inalienable, namely the Rights of Man.” (268)

The early 20th century saw the collapse of the Austrian-Hapsburg Empire and the sudden creation of several new states in eastern Europe.  The established European powers attempted to deal with this during the WWI Paris peace talks with the Minority Treaties, which were an attempt to protect the minority groups within those new states from the majority groups.  One crippling problem from the outset, was that these Minority Treaties did not have to be signed by any of the established powers, not even defeated Germany, because these established powers “could be trust to uphold the standard of civilization”.  The states which did have to sign these treaties considered them impositions, to be ignored as much as possible. The upheavals also caused mass migrations into central and western Europe, and along with these mass migrations, denationalization became a weapon of totalitarian politics:

Those whom the persecutor had singled out as scum of the earth—Jews, Trotskyites, etc.—actually were received as scum of the earth everywhere. . . The official SS newspaper. . . stated explicitly in 1938 that if the world was not yet convinced that the Jews were the scum of the earth, it would soon be when unidentifiable beggars, without nationality, without money, and without passports crossed their frontiers. (269)

Modern conditions which make sovereignty a joke except for the largest states, imperialism, and pan-movements undermined Europe’s nation-state system from the outside.  Arendt is more considered with the internal factors which appeared after WWI, with the rise of minorities, refugees, and revolutions. The treaties which resolved WWI lumped many different peoples together in the same state, such as Croats and Slovenes in Yugoslavia, and falsely assumed they would be equal partners in government.  A third group, the minorities, were mixed in with the rest.   All of this was so arbitrary that it was seen as handing rule to some and servitude to others.  

In the states created by the results of WWI, about 30% were treated as exceptions who had to be protected by minority treaties. It became normal for the minorities to be disloyal and for the governments to oppress them “as efficiently as possible”.

Minorities had existed before, but this was the first time they had existed as a permanent institution.  This was the first time that millions of people lived outside normal legal protection and needed their rights to come from an outside body.  The Minority Treaties made explicit something which had only every been implicit in the European system, that only nationals could be citizens.  People of different nationality needed a law of exception unless they were completely assimilated. This completed “the transformation of the state from an instrument of the law into an instrument of the nation had been completed; the nation had conquered the state, national interest had priority over law long before Hitler could pronounce ‘right is what is good for the German people.’” (275) That danger had been in the structure of the nation-state from the beginning, but insofar as the rise of nation-states coincided with the rise of constitutional government, they had always positioned themselves against arbitrary rule and despotism.  As the link between nation and state broke down, the consequences came swiftly.

The minorities were only half-stateless.  Technically, they did belong to a political body, despite needing the protection of special treaties.  Some rights, like the right to speak one’s own language and stay within one’s cultural surroundings, were half-heartedly protected, but other major rights, like the right to residence and work, were not.  No one foresaw huge migrations of people who were “undeportable” because there was no country in which they had a right to reside. People wanted to see this as an exception, and a different strategy was attempted after WWII: large scale-repatriation.  But the problem of stateless people has only increased.

The stateless people are the most symptomatic group in contemporary politics; almost every major event since WWI has added to their number.  The first group of stateless people were produced with the end of WWI.  They were “legal freaks”, and basically ignored until they were joined by refugees who had been forced out of their countries by revolutions: Russians, Armenians, Hungarians, Germans, and Spaniards.  These groups were denationalized by their home countries.  That denationalization might look like a natural consequence of civil war, but it was a new phenomenon.  It showed that these states would rather lose citizens than harbor dissenting views. “One is almost tempted to measure the degree of totalitarian infection by the extent to which the concerned governments use their sovereign right of denationalization. . .” (278) Between the world wars, many European countries pass laws that would allow them to expel or denaturalize many of their inhabitants.

“No paradox of contemporary politics is filled with a more poignant irony than the discrepancy between the efforts of well-meaning idealists who stubbornly insist on regarding as ‘inalienable’ those human rights, which are enjoyed only by citizens of the most prosperous and civilized countries, and the situation of the rightless themselves.  Their situation has deteriorated just as stubbornly, until the internment camp—prior to the second World War the exception rather than the rule for the stateless—has become the routine solution for the problem of the domicile of the ‘displaced persons.’” (279)

Prior to WW2, only totalitarian regimes used denaturalization. But in Arendt’s time, even the United States has considered stripping communist American citizens of their citizenship.  The US is considering this “in all innocence,” but remember: the Nazis said that all German Jews had to be deprived of their citizenship before deportation..  Being stateless opens you up to going to a camp.

One big shock was the realization that the refugees could not be gotten rid of; repatriation failed because there was no country to send them back to.  That undeportability would seem to prevent a government expelling them, but they became “an anomaly for home there is no appropriate niche in the framework of the general law”, and so was completely at the mercy of the police, who were ok with committing illegal acts to reduce the number of undesirables.  The only practical response ever found to statelessness was the internment camp.

Another consequence of statelessness was since a growing number of people had to live outside legal protections, and had no right to residence or right to work, they had to live outside the law.  They were liable to jail sentences without being convicted of a crime: “Since he was the anomaly for whom the general law did not provide, it was better for him to become an anomaly for which it did provide, that of the criminal.” (286)  Arendt argues that the best way to see if someone lives outside the law is to ask if their legal position would be improved by committing a crime.  They remain an exception, but it is an exception provided for by the law. The stateless criminal is not treated worse than others; he is treated like every other criminal:  

The same man who was in jail yesterday because of his mere presence in this world, who had no rights whatever and lived under threat of deportation, or who was dispatched without sentence and without trial to some kind of internment because he had tried to work and made a living, may become almost a full-fledged citizen because of a  little theft.  Even if he is penniless he can now get a lawyer, complain about his jailers, and he will be listened to respectfully.  He is no longer the scum of the earth but important enough to be informed of all the details of the law under which he will be tried.  He has become a respectable person. (286-287)

The nation-state, because they could not come up with laws for the stateless, handed the issue over to the police.  The police basically became a ruling force independent of government.  The totalitarian countries, especially Germany, began working towards a framework where anyone of “alien blood” could be expelled.  But even in the non-totalitarian countries, the police had increasing power to do the same thing.  There were concentration camps across Europe, even if the inmates received very different treatment in different places.

In the history of minorities and stateless people, Jews have played a major role.  They needed a level of protection matched only by Armenians, had international connections, and formed a majority in no country.  They were the only minority who could only be defended by international treaty.  Governments initially tried to ignore the statelessness problem by saying it was a Jewish problem. None of them were aware that Hitler’s solution, which first reduced Jews to a nonreocgnized minority, then to expel them as stateless, then to gather them back to send them to camps, “was an eloquent demonstration to the rest of the world how really to ‘liquidate’ all problems concerning minorities and stateless.” (290)   After the war, the Jewish question was “solved” by the creation of Israel – which, of course, like every other major event of the 20th century, created a new category of refugees, the Palestinians.   

  1. The Perplexities of the Rights of Man

The French and American declarations of the Rights of Man at the end of the 18th century was supposed to be a turning point in history.  Man, not God or custom, was to be the source of law.  The framers were unaware of one significant consequence.  The proclamations were meant to be a protection in a new area in which individuals were no longer secured by the estates they were born into, or equal before God as Christians.  In other words, forms of security which were outside the state order had dissolved.

Since rights were inalienable, no authority was invoked: man was both their source and goal.  And no special law was supposed necessary to protect them, since all laws were supposed to rest on them.  Man was the only sovereign in matters of law, and the people were the only sovereign in government.  Essentially, “inalienable rights” became attached to the sovereignty of the people:

In other words, man had hardly appeared as a completely emancipated, completely isolated being who carried his dignity within himself without reference to some larger encompassing order, when he disappeared again into a member of a people.  From the beginning the paradox involved in the declaration of human rights was that it reckoned with an ‘abstract’ human being who seemed to exist nowhere, for even savages lived in some kind of a social order. (291)

If a “backward” community did not have human rights, it was because they had not yet reached a certain level of situation, and were oppressed by despots.  Peoples had rights, not individuals; “As mankind, since the French Revolution, was conceived in the image of a family of nations, it gradually became self-evident that the people, and not the individual, was the image of man.” (291)  The main implication of this came with the rise of stateless people.  People without governments had no rights, basically.  And when international bodies tried to secure them for minorities, the governments took this as an encroachment on national sovereignty.  Human rights became a joke; not even the minorities themselves invoked them.

The Rights of Man had never really been a practical issue, until the 20th century.  In the 19th century, invoking them was perfunctory sloganeering. Human rights took on a new connotation: they became the slogan of the protectors of the underprivileged, “a kind of additional law, a right of exception necessary for those who had nothing better to fall back on.” (293)

Rights, supposedly inalienable, were unenforceable even in countries with constitutions based on them, when people appeared who were not citizens of a sovereign state.  To add to all this, no one really seems to know exactly what these rights are.  Arendt argues that the first loss the rightless suffer is the loss of their homes, meaning “the loss of the entire social fixture into which they were born and in which they established for themselves a distinct place in the world.” (293)  This was not new; economic migrations happened frequently in history.  What was new was the impossibility of finding a new home.  The migrants had no place to go where they could find a community of their own.

This was not a material problem of overpopulation, but a problem of political organization: nations were a family, and if you were thrown out of one, you were thrown out of them all.  The second loss was the loss of government protection, and this was not just a loss in their home countries, but in all countries.  Treaties and international agreements make it possible for someone to carry their legal status no matter where they go; for example, a German citizen could not enter a mixed marriage abroad.

By itself, the loss of government protection is no more novel than the loss of a home.  The right of asylum functioned unofficially for exceptional cases, but once the migrations became too large, the governments could not handle them.

One surprising thing is that it seems to be easier to deprive an innocent person of legal status than it is a criminal:

Jurists are so used to thinking of law in terms of punishment, which indeed always deprives us of certain rights, that they may find it even more difficult than the layman to recognize that the deprivation of legality, i.e., of all rights, no longer has a connection with specific crimes. (295)

All this shows us the many perplexities involved in the idea of human rights, however they are defined: the American life, liberty, and pursuit of happiness, or the French equality, liberty, property, and national sovereignty.  However we try to improve on an ambiguous idea like the pursuit of happiness, or try to improve on the archaic idea of an unqualified right to property, the actual situation of rightless people “shows that these are rights of citizens whose loss does not entail absolute rightlessness.” (295)  During wartime, the soldier is deprived of a right to life.  A criminal is deprived of a right to freedom.  During an emergency, all citizens lose the right to pursue happiness.  But in any of these cases, no one would claim there had been a loss of human rights.

“The calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law and freedom of opinion—formulas which were designed to solve problems within given communities—but that they no longer belong to any community whatsoever.  Their plight is not that they are not equal before the law, but that no law exists for them; not that they are oppressed but that nobody wants even to oppress them.  Only in the last state of a rather lengthy process is their right to live threatened; only if they remain perfectly ‘superfluous, if nobody can be found to ‘claim’ them, may their lives be in danger.” (295-296)

Even the Nazis deprived Jews of their legal status before killing them.  The state of rightlessness had to be created before the right to live was challenged.  The same is true with freedom, usually regard as the essence of human rights.  It is true that a stateless person might have a lot of freedom or freedom of opinion, but neither physical safety nor freedom of opinion really changes their rightlessness.  Their lives are due to charity and not right; their freedom of movement gives them no right to residence which even criminals have, and their freedom of opinion is pointless since no one cares what they think.

The deprivation of rights first begins with a loss of a place in the world, a place which is necessary to make opinions significant and actions effective.  This is more significant than usual notions of freedom and justice; it is about being placed into a situation where one’s treatment by others is not dependent on what one might say or do.  That is the fundamental loss of rights.

This loss of rights did not come from some lack of civilization, or backwardness, or even tyranny: rather, it was because there is no longer any “uncivilized” spot on Earth.  We 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.” (297)

Before this, what we call a human right would have been a general part of the human condition which no tyranny could take away.  Its loss is the loss of speech and action: these humans cease to be political animals, like Aristotle’s slaves.  The problem with slavery is not that it takes away freedom, but that it takes away the possibility of fighting for freedom, a fight that is possible against tyranny.  It is the loss of a connection to a polity which expels one from humanity.

The right connected to this loss cannot be expressed in the categories of the 18th century, because they thought rights sprang from the “nature” of man, whether natural law or the image of God.  These 18th century rights were supposed to be valid even with stateless persons and independent of history.  But this “dignity of man” was always ambiguous.  Natural rights replaced historical rights, and nature was supposed to be less alienating than history; consider phrases like  Inalienable, given with birth, and self-evident truths.

But human nature is questionable; the fact that we can now exterminate all life with nuclear weapons indicates a massive rift with nature, and science instills doubts about the existence of natural laws.  How do we get natural rights from a universe which knows nothing of rights? In the 20th century, we are just as “emancipated” from nature as 18th century man was from history.  In the 18th century, exemplified by Kant, “humanity” was a regulative ideal.  But for us, it supposed to be a reality: rights are granted by humanity, not nature or history.  But it does not appear as if this is possible.  Human rights as granted by humanity presupposes a sphere overarching all states, but nothing like this exists.

We could not solve the problem with a world government.  A world government might be possible, but it might be very different from the goal of humanitarians.  Crimes against human rights can always be justified by saying these actions are needed for the good of the whole.

An idea of law that identifies right with “Good for. . .” (family, individual, greatest number) is inevitable once the transcendental backing of religion or nature have lost their force.  And the problem is not solved if we say “Good for” all of humanity, because it is possible to imagine a highly organized humanity deciding that parts of itself need to be liquidated.  This brings us to the oldest problem of political philosophy, which has long been hidden by the unquestioned Christian framework; as Plato said, “Not man, but a god, must be the measure of all things.”

All this seems to point to the truth of Edmund Burke’s criticism of the French Revolution’s Declaration of the Rights of Man: they are only an “abstraction”, and it is better to claim rights as, e.g., an “Englishman” rather than a human.  Rights come from the nation. The pragmatic truth of Burke’s statement seems right.  The loss of national rights resulted in the loss of human rights.  The restoration of human rights, like with Israel, resulted in the restoration of human rights.  The idea of human rights, based on the assumption of human beings as such, breaks down when confronted with people who had lost all specific qualities and relationships other than bare humanity.  “The world found nothing sacred in the abstract nakedness of being human.” (299)

The survivors and inmates of camps of all types show that being merely human is a great danger.  They were seen as savages, and worried they might end by being seen as animals.  So they insisted on their nationalities, the last sign of their citizenship, the last sign that they belonged to the civilized world.  

The human that has lost their place in a  community is left with only those qualities that are usually articulated in the private sphere:

This mere existence, that is, all that which is mysteriously given us by birth and which includes the shape of our bodies and the talents of our minds, can be adequately dealt with only by the unpredictable hazards of friendship and sympathy, or by the great and incalculable grace of love, which says with Augustine. . . ‘I want you to be,’ without being able to give any particular reason for such supreme and unsurpassable affirmation. (301)

The political life has always had a suspicious of the private sphere.  The private sphere, the merely given, is a threat to the public sphere: We are not born equal; equality is produced by public cooperation.  The merely given breaks into the public sphere as an alien, reminding us of the limitations of human equality.  

If a black person in a white community is black and nothing else, he loses not only equality, but also the right to action.  All his actions are “necessary,” the result of being black.  The big danger of people outside the common world is that they are thrown back onto their mere givenness.  They lack the equalizing of differences that comes from being part of a commonwealth; they belong to the human race in the way that a dog belongs to the species of dog.

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identity and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance. (302)

There are two dangers.  First, the increasing numbers of stateless people threaten political life, the world which is the result of cooperation.  The phenomena of statelessness threatens organized communities that same way that natural disasters once threatened city states.  There are no more threats from outside.

Even the emergence of totalitarian governments is a phenomenon within, not outside, our civilization.  The danger is that a global, universally interrelated civilization may produce barbarians from its own midst by forcing millions of people into conditions which, despite all appearances, are the condition of savages. (202)

 

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