Tuesday, January 27, 2009

Law and Loneliness

A few weeks ago I finished reading Hannah Arendt’s The Origins of Totalitarianism (1962, Meridian Books). As many of you will know the book is really great and mounts an original and persuasive argument with regards totalitarianism, even convincing me that the term might have some utility (although I am fairly steadfast on the idea that equating Nazi Germany and the ‘Stalinist’ Soviet Union is not that useful). However, as with recent critical work (which of course is influenced by this account) I think that Arendt gives law rather too much of an easy ride. Often in the book she treats the law (in Debord’s words) as being ‘asleep’ to processes of domination before ultimately being abolished. As I have argued earlier this is something of a liberal response (although Arendt was obviously not a liberal and she is ambivalent on the law), which absolves law of complicity in oppression (even if one some level it must condemn law for being so inefficient).

I think this is particularly prevalent in her discussion of the role that the ‘masses’ and loneliness play in the growth and consolidation of totalitarianism. For Arendt ‘loneliness’ and the ‘masses’ are two parts of the same process. Although the concept of loneliness in only introduced in an amended chapter to Origins (Ideology and Terror) I would argue it remains implicit within her description of the masses (indeed it is explicitly mentioned in this earlier discussion) and is very useful in differentiating between the special role of the masses in totalitarianism and ‘ordinary’ tyrannies.

Arendt first distinguishes between isolation and loneliness. Isolation occurs in the political sphere, essentially it occurs when people are unable to make public, political contacts with each other. Owing to this they become unable to act politically and so impotent. Arendt argues that this is standard fare for all tyrannical regimes (p.474). However, this political isolation cannot break all contacts between men, the corresponding condition to isolation in human life as a whole is loneliness.

Arendt again makes a distinction, between loneliness and solitude. Solitude is simply being alone or ‘by myself’, for Arendt solitude can still involve a dialogue between ‘me’ and ‘myself’. By contrast, loneliness ‘shows itself most sharply in company with others’ (p.476). Loneliness is the ‘experience of not belonging to the world at all’ (p.475). The experience of loneliness requires the company of others because our identity is constantly confirmed by the company of equals, thus, the experience of loneliness, of not belonging with anyone else ultimately means an end to the self as well.

This is necessary because totalitarian movements embody a total ideology. Only lonely, gullible people who lack common sense and need an anchor in their superfluous world. Arendt gives these rather mystical sounding phrases a concrete basis with her notion of the masses. Essentially, Arendt argues that totalitarian movements (in contrast to all political movements that preceded them) are ‘mass organizations of atomized, isolated individuals’ (p.323). For Arendt, then, totalitarianism depends upon the existence of the masses; for Arendt the masses are a somewhat contradictory phenomenon, produced by bourgeois society. Essentially, they are the embodiment of loneliness so as such the masses are a ‘mass’ of atomised, individuals who have also lost all sense of self (p.311). She ascribes the rise of the masses to the growth of bourgeois society:
The truth is that the masses grew out of the fragments of a highly atomized society whose competitive structure and concomitant loneliness of the individual had been held in check only through membership in a class. The chief characteristic of the mass man is not brutality and backwardness, but his isolation and lack of normal social relationships.
Reading Arendt’s account of the masses I was struck by two things, firstly, its similarity of Pashukanis’ account of the law, and secondly, the complete absence of the law from Arendt’s particular discussion. Thus, as Pashukanis notes (in the General Theory of Law and Marxism ‘law … is a method of relating atomized social elements’ (p.90), furthermore, from my favourite quote:
Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society".
Here Pashukanis demonstrates perfectly the way that law mirrors the contours of the mass man. While it is clearly a way in which individuals relate to each other, it also posits these individuals as atomised, isolated, monads. In other words, one of the prime pre-conditions of totalitarianism, the creation of a mass of atomised individuals is perfectly homologous with the law, this – at least – should be an area of investigation.

However, insofar as Arendt mentions law, it is to talk solely about its inefficacy or its abolition. So, on the one hand, she argues that ‘[t]he first essential step on the road to total domination is to kill the juridical person in man’ (p.447) by placing certain people and certain regimes outside of the protection of the law. This is really just a deepening of Arendt’s classic engagement with the nation-state and the rights of man. Basically, Arendt argues that the phenomenon of refugees and displaced persons undermined somewhat the claim to alienable rights – independent of any particular national laws. This is because the point at which people lost their nationalities – and became refugees – they lost all their rights. Even in the democratic countries they would very likely be placed into camps and had less rights than even criminals (who are at least subject to the procedural rigours of the law). Thus:
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 identify 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.
Arendt opines that this is because major figures were convinced that civil rights (that is to say the national rights of citizens) were the concrete embodiment of human rights, as such the nation became the heart of human rights. More generally, Arendt argues that the abstract, individual, ‘human’ rights only make sense inside of a stable social hierarchy, which includes not only the nation, but also the class and political structure:
Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy.
So the point for Arendt is that with the disintegration of these hierarchies (following the war and owing to the general atomisation occasioned by the development of capitalism) produce the masses, which creates a politics ripe for the abolition of the juridical person. What this account seems to miss is the intimate inter-relation between law and atomisation. Rather than being ‘ineffective’ in the face of atomisation law seems to be an embodiment of this atomisation and – perhaps – an attempt to mediate it, without ultimately overcoming it.

But more than this, Arendt fails to consider the way in which, owing to its close connection with capitalism, law produces atomisation – and so contributes to the formation of the masses, as well as the undermining of stable hierarchies. Social atomisation is – of course – occasioned by the development of capitalism. But capitalism is not just an ‘economic’ system, as Pashukanis has shown, the commodity form always throws up the legal form alongside it – the atomisation of capitalism is the atomisation of law. This becomes even more relevant when we consider the ways in which capitalism brings people ever closer together, this concentration of human beings (in the factory etc.) combined with the atomisation of the law creates the preconditions for the development of the masses.

Another aspect of this atomisation is the social disintegration described by Arendt. In his introduction to the third edition to the General Theory (1977, Ink Links) Pashukanis describes the process by which law becomes the main form of social regulation as:
[T]he disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects. The dissolution of the patriarchal family, in which the pater familias was the owner of his wife’s and his children’s labour power and its transformation into a contractual family in which the spouses conclude between themselves a contract of their estate, and the children … receive wages from the father, is one of the most typical examples of this development.
The whole thrust of the law is to break up formally recognised hierarchies and replace them with collections of formally equal individuals. This is not just true of the family but more generally. So for instance, Arendt puts a lot of stress on the nation-state, but the thrust of rights-talk has been to juridicalise the nation. Firstly, in the sense that in many cases the ‘idea’ of the nation is reduced to its ‘Constitution’, its ‘Declaration of Rights’ etc. Secondly, in the sense that nationality itself is juridicalised, with the nation no longer seen as an organic social hierarchy but instead a collection of formally equal citizens. Thus, if the law does require social hierarchies to give it substance (and I would really want to qualify this, it’s clear that the law requires something and here I think Rasulov’s notion of the Poulantazian state is very useful) it nonetheless tends to dissolve these very hierarchies.

Thus, even if we are to characterise totalitarianism as without law (and this is always hugely problematic even, I think, inside the camps), it is not the case that the law is simply ineffective when confronted with totalitarians. Instead law was essential in creating the conditions in which totalitarianism could flourish. Law with its emphasis on creating abstract, formally equal individuals and then allowing them to interact as such, is the perfect embodiment of the atomisation and loneliness that gives rise to the masses. This incidentally perhaps tells us something about our own political practice. Often we on the left insist on the right to – say – a minimum wage, benefits etc. in contradistinction to gaining them from charity. In a way this has to be correct because we don’t want people to essentially be dependent on the will of others in the form of charity. However, what charity does do (although even this is increasingly undermined by juridification) is maintain a human relationship as opposed to an abstract, atomised, distant one. The challenge then is to find a politics beyond both abstract rights-talk (which might lead the way to totalitarianism) and romantic organicism, that is to say to find a politics in of the active subject that collectively intervenes in the political sphere.

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