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Hannah Arendt’s Conceptions of Law: Lex versus Nomos

In this article, I focus on Arendt’s conceptions of law. Arendt’s conceptions of law are often understood in reference to The Human Condition. With the metaphor of the city walls of the polis, Arendt points out how law is a precondition for politics. The law demarcates not only the public realm but also the political realm. Arendt shares this conception of the law as nomoswith her controversial fellow-German Carl Schmitt. In his book The Nomos of the Earth, Schmitt presents his view of a world order based on his understanding of the Greek nomos. However in ‘Introduction into Politics’ Arendt adds to this understanding of law as nomos an alternative understanding, based on the Latin lex. While the Greek nomos refers to demarcation and appropriation, the Latin lex denotes connection and a ‘lasting tie’ according to Arendt. Therefore and in contradiction to the Greeks, the legislative activity was a political activity par excellence for the Romans. The different conception of law explains why the Romans were capable of empire-building while the Greeks could found new poleis but not an empire. Arendt also observes a different distinction between domestic and foreign policy based on the different conceptions of law.

By focusing on both conceptions of law, I first show that Arendt’s understanding of law is not only wider than Arendt’s critics assume, but also wider than Carl Schmitt’s view of law. Through a brief comparison between Schmitt and Arendt, I explain their different accounts of law. I also focus on constitutionalism as Arendt presents it in On Revolution. Does the constitution presented by the Founding Fathers refer to the Greek nomos or the Latin lex or are we dealing with yet another understanding of the law?


An enlarged view of Arendt’s conception of law however raises again the question of the political. In general, we have to answer the question how this double (or triple) understanding of law influences her vision of the political. How does her understanding of law relate to her view of politics? Is law a condition for politics or the result of politics? And how does it limit politics? These questions will be answered in a second section.


In a third section I concentrate on Arendt’s insights on law and politics to envision the political challenges of today. Contemporary political theorists and philosophers assume that the nation-state is unable to handle the problems of globalization, terrorism, climate change, etc. Therefore, they are discussing the desirable new world order. Unavoidably, the question of the borders of politics rises again. What was Arendt’s own view of the world order and can her understanding of law and politics help us to find the appropriate borders for politics again?  

 

KEYWORDS

Hannah Arendt ▪ Constitutionalism ▪ Law ▪ Lex ▪ Nation-State ▪ New World Order ▪ Nomos ▪ Carl Schmitt

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