Nothing but Human: On "The Right to Have Rights"

The Third Committee of the UN Assembly, which would adopt the the Universal Declaration of Human Rights in December 1948.

Excerpted from the introduction to The Right to Have Rights

Hannah Arendt first spoke of “a right to have rights” in an article titled "'The Rights of Man’: What Are They?," which was published in the 1949 summer issue of the short-lived American labor movement magazine Modern Review. Two years later, she recycled large parts of this article, including the passage where the phrase appears, in the ninth chapter of The Origins of Totalitarianism, "The Decline of the Nation-State and the End of the Rights of Man." It is in the context of this chapter that most readers of Arendt first encounter the concept of the “right to have rights.”

In this chapter, Arendt details the ways in which the notion of human rights was put to the test in the decades after World War I, when millions of people were suddenly living in European countries without claiming citizenship to any of them. Such people fell into two, often overlapping groups: “national minorities” and “stateless persons.” The former mostly resided in the new Eastern and Southern European countries formed out of the dissolution of the large multiethnic empires at the end of the war. These included, among others, Slovaks in Czechoslovakia (a successor state to the Austro-Hungarian Empire) and Lithuanians in Poland (in the former German Reich). While these people were, in principle, citizens of the country in which they lived, they could not, as separate minorities within the dominant national culture, reliably depend on their government to guarantee them the standard legal protections routinely enjoyed by other citizens. Those in the second group, “the stateless,” were both functionally and formally not citizens of any country. Indeed, they had been stripped of any citizenship they had possessed through governmental acts of mass denationalization. Among those affected were people from Spain, Turkey, Hungary, and Germany — including Arendt herself. The predicament shared by the minorities and the stateless, Arendt contends, was that, after losing their citizenship formally or functionally, both groups were transformed into something distinct from members of a political community. They were stripped to their bare status as members of the human species. No longer belonging to any nation-state, these people were “human and nothing but human.”

It is at this point, when people are human in this most reductive sense, that human rights should provide relief. As established by the United Nations, human rights — or the “rights of man,” as they were still called in the early twentieth century — are the rights human beings possess simply by virtue of being human. This conception of rights, Arendt observes, assumes the existence of “a kind of human ‘nature’” from which “rights spring immediately.” To this day, human rights are said to be intrinsic to the very existence of human beings, regardless of nationality, gender, language, religion, ethnicity, or any other specific status. Since they are thought to be secured by the idea of humanity as such and not bestowed by an earthly power, they cannot, or so the theory goes, be taken away by any earthly power:

The decisive factor is that these rights and the human dignity they bestow should remain valid and real if only a single human being existed on earth; they are independent of human plurality and should remain valid even if a human being is expelled from the human community.

Indeed, the three historical statements of human rights — the Declaration of Independence (1776), the Declaration of the Rights of Man and of the Citizen (1789), and the Universal Declaration of Human Rights (1948) — all boldly assert these rights to be “inalienable.” When all else is lost, human rights are what humans fall back on as a natural birthright.

But far from finding any relief in their human rights, the minorities and stateless people in Europe who lacked citizenship, appearing to others to be purely human, were exposed to extreme forms of violence. Being human, as opposed to being a citizen, certainly did not save six million Jews from being killed by the Nazis. On the contrary, as Arendt emphasizes, the Nazis challenged the Jews’ most basic of all so-called human rights, the “right to live,” only after carefully turning them into human beings by depriving them of “all legal status” in the eyes of any government. “The world,” she writes with chilling understatement, “found nothing sacred in the abstract nakedness of being human.” Being human proved — paradoxically from the point of view of human rights — to be a Jewish person’s “greatest danger.”

If humanity is a mark of vulnerability rather than a source of protection, citizenship comes into view for Arendt as the right that can enable the exercise of so-called human rights. In theory, of course, it was supposed to work the other way around. In the late eighteenth century, the newly founded American and French republics drew their legitimacy from their ability to ensure the protection of the natural rights that human beings already possessed. Nation-state citizenship was in some sense merely the concrete realization of these abstract rights. In practice, however, as Arendt points out, it turned out that the opposite was the case. The so-called Rights of Man could be enjoyed only as the rights of citizens. No one better understood this crux than minority and stateless persons in the twentieth century. The more these groups were rendered merely human by denationalization practices, the more they insisted on their nationality and the more urgently they claimed reintegration into a national community — despite the work of international organizations, to no avail.

It is only near the end of this long argument about the disjunction between the theory of human rights and the lived experiences of those actually reduced to bare humanity that the “right to have rights” arrives in Arendt’s text. Here is how the phrase first appears in Origins:

We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged according to actions and opinions) and a right to belong to some kind of organized community, only when there suddenly emerged millions of people who had lost and could not regain these rights because of the new global political situation.

Having detailed the disparity between citizens who can enjoy their rights with some security and human beings who have been stripped of rights, Arendt’s insight here is that the one right that is really needed, and missing, is the right to be a citizen of a nation-state, or at least a member of some kind of organized political community. Insofar as the right to be a citizen is the one right that makes enjoyment of all civil, political, and social rights possible, it seems natural for Arendt to call this right the “right to have rights.”

The supreme importance of this right makes Arendt’s refusal to draw any special attention to it all the more conspicuous. “The banality of evil,” the phrase for which she is most well known, played a starring role in her 1963 book Eichmann in Jerusalem: it appears both in the book’s subtitle and in rare italics at the end of the last sentence of the last chapter. But in Origins, the “right to have rights” is offered almost as a throw-away expres- sion. The phrase appears just once, as one way, among several others, to describe the kind of right that those without citizenship sorely lack but desperately need. Even though Arendt added a second use of the phrase, this time with the definite article (“the right to have rights”) to the revised edition of Origins in 1958, the phrase receives no preferential treatment and is not at all the climax to the chapter. Rather, in the six pages following the introduc- tion of the “right to have rights,” the chapter continues to explore the predicament of rightlessness in preparation for the third part of Origins on full-blown totalitarian movements. The “right to have rights” flared up briefly in Arendt’s thinking. It was not meant to be a watershed moment.

After it had been invented by Arendt, the “right to have rights” would wait some fifty years before garnering interest from scholars, activists, and the general public. In fact, it was largely ignored for decades after it was articulated. Although The Origins of Totalitarianism was quickly heralded as an important book written by a brilliant new political theorist, none of its first reviewers mentioned the “right to have rights” or the chapter in which it appears. Compared to the heated, even scandalous, public controversy that surrounded the “banality of evil,” the “right to have rights” was hardly noticed by anyone. Arendt herself paid the phrase no attention. She does not mention it in subsequent writings, even when the topic at hand, such as rights, statelessness, violence, or civil disobedience, would seem to invite its reprise.

When the “right to have rights” was first welcomed into the world in the late 1950s, nearly a decade after its invention, it was at the cost of being treated as a foundling. In two opinions written in 1958, US Supreme Court Chief Justice Earl Warren invoked the phrase to oppose the US government’s legal ability to strip citizens of their nationality. “Citizenship,” he wrote in a dissenting opinion in Perez v. Brownell, “is man’s basic right, for it is nothing less than the right to have rights.” It is clear from court records that Warren borrowed the expression from Arendt. (During their deliberation the Supreme Court Justices consulted a lower court’s opinion on the case, which itself cited an article in an issue of the Yale Law Journal from 1955. This article quotes from Origins the phrase the “right to have rights.”) However, Warren did not acknowledge his citation in either of his opinions. As a consequence, the “right to have rights” was, until quite recently, widely believed to originate with him. Indeed, a quick Google search reveals that most usages of the phrase until 2000 identify its author as Chief Justice Warren.

In the 1980s, the “right to have rights” almost received a wider welcome. French post-Marxist political philosopher Claude Lefort addressed the phrase a couple of times in “Human Rights and the Welfare State,” an essay that occasioned a surge in efforts to rethink the concept of human rights as a resource for radical democracy. Lefort’s mention of the “right to have rights” and acknowledgment of Arendt as its source was a chance for her invention to be more broadly disseminated in its original context. But Lefort’s attribution is carefully qualified:

Specific statements aside, [the American Declaration of Independence and the French Declaration of the Rights of Man and Citizen] granted the recognition of the right to have rights (the expression is borrowed from Hannah Arendt although she uses it in a rather different sense), and thus gave rise to an adventure whose outcome is unpredictable.

Not only does he fail to mention the book from which he quotes Arendt, he folds the phrase into his own argu- ment about human rights, sidestepping the argument that led Arendt to introduce it. All of this, moreover, occurs parenthetically. Unsurprisingly, Lefort’s essay, as influential as it has been, hardly encouraged interest in Arendt’s invocation of the “right to have rights.” This is especially ironic since something like “his” reading of the right to have rights is already legible in Origins.

After half a century of being plagiarized in US law, hijacked in French political philosophy, and overlooked everywhere else, toward the end of the 1990s the “right to have rights” and the reasoning that produced it finally began to attract considerable attention from human rights advocates and scholars from various disciplines. Among the former group who turned to the phrase to make sense of political struggle was French citizen Nizar Sassi. In 2002, Sassi described his situation as a detainee inside the prison at the US military base at Guantánamo Bay as follows: “If you want a definition of this place, you don’t have the right to have rights.” Some years later, as the Obama administration began to more aggressively clamp down on noncitizens working in the country without legal permits, the magazine of the North American Congress on Latin America argued that the “nation-state system” is “effectively denying migrant workers ... the ‘right to have rights.’" After Irish citizens voted in May 2015 to legalize gay marriage, one of the leaders of the political left in Italy celebrated the achievement as not just a lesson for his own traditionally Catholic country, but as “a victory for the beauty of the right to have rights.” In October of the same year, while Europe was finally waking up to the reality of the greatest forced migration and refugee crisis since the last world war, the European Council on Refugees and Exiles launched a social media campaign around the slogan, “Refugees have the right to have rights.”

While activists have mainly treated the “right to have rights” as an uncomplicated synonym for human rights, a more nuanced interpretation has emerged among scholars. The initial scholarly take-up of the phrase came from political theory, though interest soon spread to researchers from fields as diverse as sociology, literary studies, political science, and jurisprudence. Turkish-American political theorist Seyla Benhabib was one of the earliest scholars to draw attention to the phrase. Her lucid interpretation, first stated in The Reluctant Modernism of Hannah Arendt (1996) and subsequently elaborated in various books and articles, has become the most widely influential.

One of Benhabib’s principal concerns with the “right to have rights” — as Stephanie DeGooyer discusses in the first chapter of this book — is its foundation. As has been explained, the phrase was born out of the realization that in order to have rights, it seems that one must first have a right to be a member of a political community. And yet in calling it the “right to have rights,” Arendt highlights a potential contradiction. For how can a person who does not belong to a polity assert a right to belong to one when the condition of asserting rights is belonging to a polity? Benhabib’s explanation is that the repetition of the word “right(s)” masks the fact that the singular “right” and the plural “rights” belong to different orders of existence: the first “right” is a moral entitlement possessed by all individuals, while the second “rights” refers to legal entitlements possessed only by citizens. Even as this interpretation avoids letting the phrase founder on a contradiction, for Benhabib it raises the pressing question of the foundation for the first, moral right. She acknowledges that Arendt does not specify the ground on which the normative claim to belong to a community rests. By withholding this ground, she argues, Arendt “leaves us with disquiet about the normative foundations” of the right to have rights. Insisting that the only way to resolve this problem is to “leave behind the pieties of textual analysis,” Benhabib posits that the “right to have rights” is premised on a Kantian conception of each human being as a free, rational agent and, hence, an end in itself. It is a right that each and every human being has simply by being “a member of the human species.” In other words, the “right to have rights” is Arendt’s version of the traditional conception of human rights.

Arendt herself, as we note above, expressed grave concerns about whether being human was, in practice, enough to enable anyone to enjoy rights without also being a citizen of a nation-state. According to Benhabib, however, Arendt is too hasty in concluding that only citizenship in a nation-state can reliably guarantee rights to individuals. Changes in international law and politics since the publication of Origins, she contends, have created a forum above the level of the nation-state in which the rights of human beings who are not citizens can be asserted and enforced with increasing effectiveness. Principal among these developments are the Universal Declaration of Human Rights (1948), the Convention Relating to the Status of Refugees (1951), the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both 1976), as well as the institutions of compliance and monitoring that accompanied them, such as the United Nations High Commissioner on Human Rights and on Refugees and the European Court of Human Rights.

Benhabib admits that nation-states too often act as if their “exclusionary territorial control is an unchecked sovereign privilege which cannot be limited or trumped by other norms and institutions.” And yet, even if the right of all human beings to have rights is not already a reality on the ground, it is, she argues, a regulative ideal that the most powerful actors in national and international politics are now forced to negotiate. National sovereignty, in other words, is increasingly constrained by international legal norms. Moreover, these legal norms are increasingly being interpreted in a more universal manner, through the interventions of judiciaries, international NGOs such as Human Rights Watch, and ordinary citizens. Indeed, the interactions of the hermeneutic actions of all three, she suggests, can encourage nation-states to confront their own indifference, even hostility, toward such noncitizens as stateless people, minorities, refugees, and sans papiers. In sum, she claims that the “right to have rights” increasingly finds articulation and enforcement in institutional law. “The right to have rights today,” she asserts, “means the recognition of the universal status of personhood of each and every human being independently of their nationhood.”