The Highest Law of the Land
“The highest laws of the land (America) are not only the constitution and constitutional laws, but also contracts.”
-Hannah Arendt, Denktagebuch, p. 131
Having published The Origins of Totalitarianism, Arendt turned her attention to the country around her. In a sequence of entries in her Denktagebuch for September 1951, she starts by referring to America as “the politically new” – these are thoughts that will eventually result in her argument in On Revolution . Her analysis has often been criticized from an historical point of view, especially as she refers to the Constitution as being the first to be established “without force, without ruling (archein) and being ruled (archesthai). “ Whatever the validity of these criticisms, they strike me as missing an essential point of her concerns. Arendt is trying to work out what she a few pages later calls “the central question of the coming (künftigen) politics,” a problem she sees as lodged in “the problem of the giving of laws.” (ibid, 141). Her aim is to describe a political (i.e. humanly appropriate) system that would not rest upon will and in particular on the will of the sovereign. “That I must have power (Macht) to be able to will, makes the problem of power into the central political fact of all politics that are grounded on sovereignty – all, that is, with the exception of the American.” (idem)
Her concern in these pages (130-143) centers around what a human society would be that was truly political. Her version of America is her entry into this question. What is striking about her discussion in the intervening (and other) pages is that she approaches this question explicitly through the lens of European philosophy. Thus she is attempting an answer to the question of “can we determine the particular excellence of the American polity by viewing it through the lenses of European thought?” The point is not to Europeanize America: it is to see if America does not in some manner constitute a potential instantiation of what has been thought in Europe over the nineteenth and twentieth centuries.
The sequence of European thinkers she invokes is important. She first mentions Marx and then Nietzsche, each of whom she sees as part of and as makers of the “end of Western philosophy.” Marx is held to have inverted Hegel, Nietzsche the same for Plato. The point of her analysis of Marx and Nietzsche is to assert that they released thought from its bond to the “Absolute.” Indeed: to hold to the idea of an Absolute is to “make possible in the present unjust and bestial behavior.” (ibid, 133). As we know, this will be an ever-returning theme in her work. She expects to find in America the elements of the political that does not rest on an “absolute.”
At what might one look to find this vision of a non-absolute political? Nietzsche provides the opening to an answer. We are to look not to his doctrine of the revaluation of values but to his discussion of promising in the second essay of the Genealogy of Morals. She quotes: “To breed an animal with the right to make promises – is that not … the real problem of humans?” For Arendt, the foundation of a new “morality” lies in the right to make a promise; the promise makes possible human relations based on contract. And the grounding on contract, as she writes in the Denktagebuch, was for her the particular excellence of the American polity.
What is the implication of Arendt's claim that contract is the “highest law” and particular excellence of America? One answer is revealed by the end of extended quotation of Nietzsche’s Genealogy of Morals where he indicates that the person who has the right to make promises can “ für sich als Zukunft gut sagen zu können,”a phrase that might be rendered as “able to give himself as answer for the future.” In Arendt’s gloss, this means that if in making a contract (which is what a promise is) one pledges that each will remain true to him-or herself as the person making the contract, then each has made his or her own being the foundation for a political space.
Such a grounding or foundation is not based either on will or on any external absolute. It is a matter, as the signers of the Declaration made clear, that we “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Temporally speaking, this means that what one did in the past remains alive as the present. Our political present will thereby be tied to the historical, although not, she notes, in a “weltgeschichtliche” [world-historical: i.e. transcendental] manner.
To make the implications of this clearer, she immediately turns to a consideration of Max Weber’s distinction between the “ethic of responsibility” (which she holds to be the foundation of the pragmatism and genius of American politics) as opposed to the “ethic of conviction,” which, she says, allows for anything as we cannot know “until the day of the Last Judgment” if our conviction be correct. The implication here is that if we base our polity on the conviction of the supposed correctness of our moral judgments (as opposed to our ability to be responsible to ourselves) we will be able to justify anything, as the validation for our claim can be infinitely postponed. (One has but to look at the claims made about bringing democracy to Iraq). Indeed, Arendt sees “central question of our time” to be a change in our ability to make valid moral judgments, that is ones the correctness of which is not postponed indefinitely. (ibid 138). She now turns to an examination of how various thinkers have dealt with the problem of moral judgment. After she worked her way through a partial rejection of the manners in which Hegel, Nietzsche, and the Kant of the Critique of Practical Reason respond to this main question, she turns to the Critique of the Power of Judgment. Those thoughts are not developed at this time in the Denktagebuch -- but they will concern her for the rest of her life.
What is striking here is how the approach from European philosophy brings out the importance of what is new in the American experiment. As Hamilton wrote in the first Federalist:
It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
To which, in our present day, one may only wonder if at some point a “wrong election“ has not been made.
-Tracy B. Strong (UCSD)