The Potential Contingency of Inherent Rights: How Arendt and Nietzsche Describe Community, Law, and Human Rights

-- By JustineHong - 11 Mar 2022

Introduction

Origins of Totalitarianism is concerned with the protection of human rights in practice. By the “right to have rights,” Arendt means a community must first acknowledge human rights, which include the “right to action” and the “right to opinion,” in order to ensure the rights of citizens, which include “freedom [to do something] and justice” (Arendt 296). On the other hand, Genealogy of Morals seeks to trace the historical development of morality and conscience. In response to Arendt, Nietzsche would agree with her on the influence of the community in determining the significance of one’s actions, and on the unequal treatment of the law, but would add that individuals have an inherent right, namely the right to make promises, which is not contingent on the community.

Arendt: Contingency and the "Right to Have Rights"

Arendt states, “We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community” (296-7). To explain this “right to have rights,” Arendt connects human rights with the ability to have opinions and actions that matter in society: “The fundamental deprivation of human rights is manifested . . . in the deprivation of a place in the world which makes opinions significant and actions effective” (296). In other words, when people become deprived of a community in which their opinions and actions matter, they become deprived of their human rights. Moreover, these rights, namely the “right to action” and the “right to opinion” (296), are “more fundamental than freedom and justice, which are rights of citizens” (296). Indeed, without these fundamental rights, the rights of citizens become insignificant: “Their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow” (296). In sum, Arendt argues that people must have the right to action and the right to opinion, which are human rights but must be acknowledged by a community in order to be effective.

Nietzsche: Ruling Power and the Sovereign Conscience

Like Arendt, Nietzsche underscores the role of the community in determining the deprivation of rights. He states that the ruling institution determines justice: “‘Just’ and ‘unjust’ exist, accordingly, only after the institution of the law . . . To speak of just or unjust in itself is quite senseless” (Nietzsche 512). This passage indicates that the significance of one’s actions depends on other people. Rather than human rights, however, Nietzsche considers justice as determined by the law, which is then determined by the ruling power: “The most decisive act . . . that the supreme power performs . . . is the institution of law” (512). Here, therefore, Nietzsche agrees with Arendt’s idea that the community defines normative values and determines the significance of one’s actions.

Moreover, Nietzsche agrees with Arendt’s notion that the law does not apply equally for all: “Legal conditions can never be other than exceptional conditions, since they constitute a partial restriction of the will of life, which is bent upon power” (512). One could apply this general statement to Arendt’s case. “Legal conditions” would apply to citizens, who have human rights as well as citizens’ rights. However, these conditions are exceptional because they do not apply to stateless people. Nietzsche would argue that this situation arises because the ruling power has a “will of life, which is bent upon power,” and thus seeks to retain power for its own nation and citizens while excluding others. Hence, while Nietzsche would agree with Arendt that the law does not apply universally, he also suggests that the limits of the law result from people’s desire for power.

Finally, though Nietzsche affirms Arendt regarding the community’s influence and the law’s limits, he would argue that individuals have rights in themselves, regardless of the surrounding community: “The sovereign individual . . . liberated again from morality of custom, autonomous and supramoral . . . the man who has . . . the right to make promises . . . The proud awareness of the extraordinary privilege of responsibility . . . has . . . become . . . his conscience” (495-6). In tracing the origin of the conscience, Nietzsche argues that humanity developed the sovereign individual, who is independent of society’s morals and has a “right to make promises,” that is, the right to promise something for the future (494). This promise then becomes a responsibility, which becomes the conscience. By calling the ability to make promises a right and indicating that the individuals who possess this right are free from society’s constraints, Nietzsche logically implies that certain rights exist regardless of the surrounding community. The right to make promises is a faculty humanity has acquired and developed throughout history. However, Nietzsche’s argument may be unpersuasive in light of Arendt’s idea that any right is meaningless in practice if no one else acknowledges it.

Conclusion

Both Arendt and Nietzsche consider the influence of the community and the law on the individual, as well as the question of human rights. In presenting the notion of a “right to have rights,” Arendt emphasizes that the community determines the enforcement of human rights. Nietzsche places a similar emphasis on the community by arguing that power determines justice and can limit the scope of the law to retain or enhance its power. However, Nietzsche may dispute Arendt’s claim that the community determines one’s rights; he argues that the sovereign individual has a right independent of society, namely the right to make promises. But Nietzsche’s argument may not hold in light of Arendt’s claim that ‘inherent’ rights are meaningless if they are unenforceable. Still, rather than weakening Nietzsche’s argument, this contrast highlights a nuance of Arendt’s central claim and demonstrates the value of considering political theorists with different aims. Arendt does not dispute the objective existence of human rights; rather, she calls for a greater acknowledgment of them, as well as the actions and opinions of stateless people, so nations can manifest in practice rights which philosophers like Nietzsche affirm in theory.

Works Cited

Arendt, Hannah. The Origins of Totalitarianism. Houghton Mifflin Harcourt, 2011.

Nietzsche, Friedrich. Basic Writings of Nietzsche. Translated by Walter Kaufmann, Modern Library, 2000.

Displaced from its original context, this draft doesn't give the reader a reason to read. Substantively, the text amounts to "Nietzsche and Arendt agree on something abstract and not particularly striking." The reader has not been shown why she should care. Stylistically, the book-report language adds to th problem; it conveys no feeling, which means no motivation for a reader to engage. We don't want to read like a tour guide for undergraduates being frog-marched through material.

So the key to improvement is to add depth and context. To what question are these particular ideas attributed to Arendt and Nietzsche among the answers and why would it matter to anyone? Despite the publication dates of the reprints you mention these are not recent thinkers, nor is the conversation in which you are juxtaposing them one in which they are preeminent voices. So what is the larger discussion about? How is it relevant to what lawyers concerned with "human rights" do? I suppose the canonical compass points of entry are Rawls, Nozick, Dworkin and Unger. But for present purposes I think Roberto Unger's Law in Modern Society is probably the place to start.

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