Arendt on Law, Politics and Philosophical Limits

This continues a theme that has been explored in numerous posts, over some months, on law, legislation and politics, largely with reference to Carl Schmitt and Friedrich Hayek. Check through the blog archives or use the search window to locate them. Briefly, Schmitt and Hayek were both concerned that law, what reflects generally shared customs and principles of justice, was being subordinated to legislation, edict laws passed by the political sovereign without regard for socially shared assumptions, and linked with the rise of an administrative state breaching the limits between state and society.

Arendt has a related idea about the end of political philosophy, or at least of political philosophy as understood from the time of Plato into the Enlightenment. For this I have a reading of the essays collected in The Promise of Politics (edited by Jerome Kohn, Schocken Books, New York NY), though of course all of Arendt’s many papers and books on politics are relevant. In Arendt’s view, political philosophy form Plato rests on assumptions about the possibility of unity between thought and action, simultaneously with a withdrawal of philosophy from the public sphere to a position of evaluation and design from above. Marx’s political thought is indicative of a breakdown in which law and politics cannot be given an ideal form any more. That issue in Marx is not just an issue for Marxists, far from it. Arendt thinks of the erosion of political philosophy as becoming apparent before Marx in Montesquieu. She refers (without anything in the way of referencing) to a fear Montesquieu that Montesquieu has that custom is eroding. Despotic governments in Europe could keep eroding customs, and a foreign conquest could destroy them completely. These speculations are rooted in Montesquieu’s sense that the systems of enduring customs, laws and liberties, he associates with democratic and aristocratic republics, and monarchies, influenced respectively by dominant customs of virtue, moderation and honour, might not endure for ever. A good state, or constitution, is one that endures and there is a growing possibility that  such enduring constitutions will not exist in future.

Making a slight diversion from Arendt, it is worth noting that this is an anxiety Montesquieu has in common with Rousseau, for whom constitutions are always undermined over time by personal and sectional interests. Since Montesquieu and Rousseau are stereotypically contrasted as the aristocratic individualist and believer in limited government, against the ultra-republican believer in enforced equality and social coherence. Of course there are some real differences between them, but that is not a reason for accepting a parodic version of those differences. Custom is strongest for Montesquieu in a democratic republic of simple equality in poverty, where there is no distinction between the law of the state and the customs of the people.

Returning to Arendt, Montesquieu’s apprehensions about the future of law, liberty, and custom, are foreshadowings of a disintegration of the project of  full grounding of the state on law and principles of justice. There is something of a return of the pre-polis world, that is the world of the Ancient Greeks before the emergence of cities which have laws and political institutions, including courts of law and public assemblies. That is the world which produces the philosophy, including political philosophy, of Plato and Aristotle, which itself represents some distancing from the polis. Arendt, in a rather sweeping but fascinating way, contrasts that world with the world of the Homeric epics, where the words and deeds of heroes like Achilles are commemorated. The idea of the importance of recording great deeds lasts into the era of the polis, when Heredotus and Thucydides, record political deeds.

It is not just the polis, the political community, which Arendt invokes but also the Rome of imperial might, were politics declines  in the decline of absolute rule by emperors. Arendt refers to Rome as the unity of tradition, authority and religion, a unity which provides a model for later states, and which is continued by the Catholic Church. That model cannot survive the loss of any one of the three components. The Roman model creates a regularity and unity of law, resting on legal concepts entering language and thought, distinct from what comes from religion. Athens and Rome are both taken up in the story of law, political institutions and political theory. A story which reaches an end in Marx anticipated by Enlightenment, concerned by the weakening of customs and laws.

The Enlightenment worries which Arendt refers to still allow the work of Montesquieu and Hume, Kant and Hegel, but in a late development as they are writing during the decline of the idea of the household as isolated entity where the economic takes place, and the growth of a commercial society which unified people through trading across a whole nation. In the 19th century this cannot be integrated into a system of right, laws, political institutions and sovereignty. That is where something like the rise of legislation over law, and the rise of administrative law,  come into Arendt’s argument. Marx and Weber both react to the hollowness and weakness of law. Of course political philosophy has been written since then, and in Rawls’ A Theory of Justice we see a influential attempt to describe how institutions and principles can be adopted on rational grounds. However, this very abstract rationalist position would confirm to Arendt that politics had lost its role as connected with action, practice and philosophy.

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