Law and Power

This typescript, twenty relatively clean and undated pages on the topics of law and power, is philologically mysterious. Produced on an unremarkable typewriter that does not help date it, the typescript has a heading of Roman numeral “III” and relatively high page numbers (41 to 60) and is clearly part of something larger that has not survived. Beneath the “III” Arendt has at some point written by hand “Law and Power”; perhaps when this fragment was extracted from its original context, perhaps later as a reminder or generalization. The topical pair is in any case announced in the opening sentence, where she refers to “two conceptual pillars: Law and Power.” The following thirteen pages (to page 54) draw a number of interrelated distinctions between and among conceptions of power and of law. An expository shift of emphasis then introduces the six-page concluding discussion of Montesquieu.

The typescript recalls Arendt’s description in her Guggenheim reapplication letter of the third chapter of the project she was sending the evaluators. “In order to present concretely what actually distinguished the totalitarian forms of government from all others which we have known in history,” she writes in that late January 1953 report, “I then go, in chapter 3 on Law and Power, to an examination of these two conceptual pillars of all traditional definitions of forms of government. This chapter ends with an analysis of Montesquieu, who provides me with the instruments of distinguishing totalitarianism from all — even the tyrannical — governments of the past.” ¹

The “III” at the top of the fragment, the handwritten subtitle, the “conceptual pillars” and the concluding passages on Montesquieu all seem to correspond to this description, so that the possibility that the text was composed either late in 1952 or very early in 1953 must be taken seriously.² At the same time, there is nothing in the typescript as we have it about totalitarianism, and earlier in the Guggenheim letter Arendt had indicated that the chapter she is referring to here “consists in its present draft of 25 pages,” which would be both considerably longer in absolute terms than the twenty typed pages we have, and considerably shorter than the page numbers from 41 to 60 would suggest. More broadly, we meet with the conjunction of Montesquieu, forms of government and “law and power” throughout these writings. From the notes for her lectures at the New School in March and April, 1953, to the later pages of “Karl Marx and the Tradition of Western Political Thought: The Modern Challenge to Tradition,” to their eventually reappearance in the Gauss material,³ “law and power” labels a foundational topic of concern for Arendt throughout these months. Her schematic abbreviation when summarizing her argument to the Guggenheim committee suggests its centrality: “These opening chapters …will contain an examination of the most important political concepts of the past together with a confrontation of what happened to them within the totalitarian system. (Law and power becomes ideology and terror, etc.).”

If these ambiguities challenge a philological terminus ad quem that would otherwise fall in the first weeks of January 1953, there is nonetheless much that supports a comparatively early dating of the fragment, which is Arendt’s most concentrated and explicit articulation of this constellation of topics. Arendt’s exposition here is still recognizably beholden to the concept of legality in the essay “Ideologie und Terror” from the spring of 1952. There, she had attempted to describe “den grundsätzlichen Unterschied zwischen dem totalitären und allen anderen Begriffen von Gesetz und Recht”, and had located that fundamental difference in the totalitarian transformation of law into “eine Bewegung,” one that manifests itself as “eine überdimensionale Kraft (und nicht nur etwas überhaupt Übermächtiges).”⁴ This transformation of law into the direct manifestation of an overpowering historical force involves a fundamental recalibration of public law and the power that animates and effects it. However the present typescript began, in this section Arendt appears to expose this recalibration by returning to the pre-totalitarian history of law and power, whose various relations traditionally characterize different forms of government. This examination of the tradition of political thinking from the perspective opened onto it by the contemporary totalitarian catastrophe reticulates through Arendt’s political thinking in these years. The provisional character of this discussion, reflected both in the tidiness of Arendt’s conceptual distinctions and the generality of her expository point of departure, suggests that the text belongs toward the outset of this reticulation. The editors have thus grouped it with other preliminary formulations on which Arendt was working before her summer retirement to Palenville and her concentrated focus on the Princeton engagement.

Arendt’s typescript manifests the growing complexity of the terminological relationship between law and power at this stage of her thought. The page numbers reveal that much of the text, before the introduction of Montesquieu, results from two interpolations, both keyed to a passage on the fifth page of the typescript, numbered 45, where Arendt is distinguishing two concepts of power. Together these interpolations add five pages to the typescript, and Arendt’s penchant for numbering such insertions, at least initially, in ways that preserve her original pagination allows a reader to derive both the sequence in which the two addenda were written and the loss of an earlier page 45a that must have been superseded.

The original (typed) page numbers on the five interpolated pages are: 45a, 45aa, 45aaa, 45b, 45c. There follows a page originally numbered 46 whose opening, (“certain that the older Greek concept …”), does not follow from the previous page 45c but continues the half-sentence at the foot of page 45, (“Here again it seems”). The two interpolations have been ordered into the typescript and renumbered in Arendt’s hand, so that the additional pages displace the original typed 46 with the handwritten number 51. On the next page, however, the number 52 is typed, and this numeration continues to page 60 uninterrupted. The two interpolations were therefore undertaken before page 52 and what follows had been written, prompted by something that had occurred to Arendt in writing her original page 46.

The typescript seems to point to that prompt, for it is clear that page 46 has been pulled from the typewriter five lines before the bottom of the page and then reintroduced with a slightly different orientation to begin the final paragraph. Thus what are now the first five pages and the eleventh page, numbered 41 to 46, preserve the original flow of an argument that comes to a provisional conclusion just before the end of page 46. The point at which the writing was interrupted coincides with an explicit reference to Aristotle: “(Politics, 1140a20).” At this point, Arendt returned to the previous page, where she introduced a three-page interpolation, which she numbered 45a, 45b, 45c, intended to expand upon the distinction introduced in the opening pages between power as the means to an end, and power as a positive potential that emerges in collective human action. At some point in that newer formulation, the first of these additional pages, page 45a, must have been replaced by another continuous three-page sequence, 45a, 45aa, 45aaa, that has clearly been numbered to accommodate an extant page 45b.

We have an exposition, then, that on page 45 is proceeding from a distinction between two sorts of power: “Power in the [first] sense means the ability to violate and ultimately the ability to kill” (43), and “power or pouvoir or posse or δύναμις mean[ing] potentiality, as distinguished from strength which I have fully at my disposition, which really is my strength.” Having suggested this distinction, Arendt is transitioning back to a consideration of conceptions of law, and in particular, a distinction between law as enabling boundary and law as necessary movement. The original page 46 begins with “the older Greek concept [that] understood laws as boundaries within which the political life came into being rather than as moral commands which must be enforced” (51). It is in the course of presenting this older concept of the law as the enabling durable constraints on collective life, a concept she illustrates first with a fragment of Heraclitos comparing the laws to the walls of the city, and then generalizes by pointing to the Aristotelian and Platonic insistence that “political science deals with things which are νομῷ and not φύσει,” that she arrives at Aristotles’s ancient disparagement for just that reason of the bios politikos at the expense of the bios theoretikos. She concludes with the reference: “(Politics, 1140a20).” As detailed in the annotation to this point, this is likely an error for the Nicomachean Ethics, 1141a20, where practical wisdom (φρόνησις) is denigrated with respect to ἐπιστήμη, the knowledge of eternal things. Having reached this Aristotelean distinction, Arendt returns to her earlier analysis of violent and collaborative power and expands upon the Platonic description of their agencies, purposes, and characteristic inequalities. Only then does she pursue the complementary investigation of the notion of law.