LUND UNIVERSITY 
European Master’s Programme in Human Rights and Democratisation 
A.Y. 2022/2023 
  
 
 
LIBERAL ORDER UNDER STRESS 
Arendt, Benhabib, Rancière on the Right to Have Rights 
Author: Teresa Heintz 
Supervisor: Associate Professor Markus Gunneflo 
 
Word Count Declaration: 21,017 
 
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Abstract 
In the 20th century, national minorities and stateless people challenged the liberal premise 
that every human being has inherent human rights. It became apparent that people who 
have no rights other than that of being a human being enjoy neither rights nor legal 
protection. This paper examines how the "right to have rights" challenges liberalism's 
assumptions about self-determination, public and private spheres, and the equality of 
liberal subjects, and compares how the theories of Hannah Arendt, Seyla Benhabib and 
Jacques Rancière offer alternative responses to those liberal assumptions. Arendt 
challenges the liberal distinction between public and private life by emphasizing political 
action and membership in a community for the realizability of human rights. Rancière 
criticizes Arendt's depoliticization of marginalized lives and their relegation to the private 
sphere but recognizes a redistribution of power in political subjectivity through the 
demand for human rights. Benhabib seeks an ethical foundation for international human 
rights institutions but does not address Weberian paradox and collective political action. 
The thesis argues that if the liberal order takes seriously its demands for freedom, 
equality, and self-determination, it sees human rights not as pre-political, innate, or 
contractual, but as a disruption of the political order in which rights-holders can act as 
political subjects among equals. 
  
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Contents 
Liberal Order Under Stress 4 
Literature Review: Political Theory on the Right to Have Rights 8 
Three Assumptions Underlying the Liberal Script 10 
Core Principles of Liberalism 10 
Self-Determination and Individual Liberty 12 
Self-Determination and the Private and Public Realm 15 
Self-Determination Through Equality 17 
Comparative Analysis 19 
Hannah Arendt: The Right to Have Rights through Political Agency 19 
No Freedom Without Equality 20 
Condemned to Private Life 22 
Self-Determination as Emancipation 25 
Seyla Benhabib: Discourse Ethics of the Right to Have Rights 28 
Self-Determination through Communicative Freedom 29 
On the Problem with the Circular Reasoning of Equality 31 
Public Space Beyond Borders 33 
Jacques Rancière: On the Right to Dissensus 36 
On the Non-Existence of Equality and Liberty 36 
Critique of the Depoliticization of Private Life 40 
Self-Determination as a Process of Differentiating the Undifferentiated Demos 43 
Findings and Discussion 46 
Conclusion 52 
References 56 
 
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Liberal Order Under Stress 
Liberalism is the most important theoretical strand within modern political theory in terms 
of actual historical impact, as it has continuously and realistically developed due to the 
dialogic interplay between political reality and theoretical reflection and shapes the 
overall cultural self-understanding of modernity (Geuss, 2002, p, 335-6). Liberalism is 
perceived as a reaction to a modern world that, after the European religious wars, sought 
to create a value base to find social unity among a population that was diverse at its core. 
Liberalism tried to solve this pragmatically through a rights-based conception of justice 
(Tomasi, 2001, p. 59). 
Human rights legitimise the liberal political order. Douzinas (2013) describes human 
rights as a symbol of liberalism, however, on a normative and functional level they are 
even more than that. The liberal order, especially liberal democracy, legitimizes itself by 
fulfilling pre-political preferences of its citizens, namely human rights. Liberalism thus 
puts the right of self-determination of the individual in the foreground. 
While the precise historical origins of liberalism remain disputed, pivotal moments such 
as the French Revolution and the Magna Carta shed light on its evolution. The French 
Revolution served as a significant catalyst for spreading the fundamental principles of 
liberalism and human right, redefining the term 'liberal' to encompass praiseworthy ideas; 
often used to praise the America's Declaration of Independence (Rosenblatt, 2018, p. 36). 
Conversely, Titlestad (2010) traces the roots of liberalism back to the Magna Carta, an 
agreement that emphasized the subjecting of all, including the king, to the rule of law and 
unintentionally laying the groundwork for civil rights. Regardless of the ongoing 
historical debate, liberalism is intricately intertwined with the ideals of civic or human 
rights. 
Hannah Arendt, a Jewish journalist, and political philosopher persecuted by the Nazis, 
shook this assumption that a liberal order is based on the idea of human rights. In the 
ninth chapter of Arendt's “The Origins of Totalitarianism”, titled "The Decline of the 
Nation-State and the End of the Rights of Man," Arendt discusses the right to have rights 
for the first and only time in her work. That Hegel used the term earlier is mostly 
forgotten. But Arendt’s understanding of the right to have rights initiated a discussion 
within the discourse on human rights. It led to a political shift within the metaphysics of 
human rights, namely away from the question of the normativity of human rights towards 
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problems of their enforceability and as I will show towards a legitimacy crisis of the 
liberal order. By exposing the paradox nature of human rights, Arendt’s idea served others 
for the purpose of "revitalizing and radicalizing human rights" (Hunt, 2012, p. 140). 
According to Hannah Arendt, the Universal Declaration of Human Rights belongs to the 
liberal paradigm as it is based on natural rights that precede and justify the political order. 
By asserting the right to have rights, she not only emphasizes the constructivist nature of 
the Universal Declaration of Human Rights, but fundamentally raises the question of how 
human rights can be normatively grounded outside the liberal paradigm. 
Arendt notes that individuals who can claim no other rights than those of being a human 
being have no rights or legal protection, which seems paradoxical. Arendt describes how 
this paradox has existed since the late 18th century when human rights were linked to 
national sovereignty and became more apparent after World War I with the emergence of 
national minorities and stateless persons. 
According to Lacroix, Arendt's paradox of human rights stems from both a rejection of 
any anthropological foundation for human rights and an unwavering defence of their 
indefinable essence (Lacroix et al., 2018, p. 217). Without a natural or divine justification, 
human rights lack a transcendent basis and are only guaranteed by humanity itself. But 
Arendt questions whether humanity can guarantee "every individual's right to belong to 
humanity" (Arendt, 1973, p. 298). Human rights, according to Arendt, are not inherent, 
but rather conventions and forms of recognition produced by human agreement. The 
"political" interpretation of human rights is predicated on the notion that they are an 
agreement-based form of recognition. The politics of human rights is therefore viewed as 
the cooperative and active practice of individuals recognizing one another as equals 
(Lacroix et al., 2018, p. 223). 
This master's thesis thus addresses the question to what extent Arendt shakes basic 
assumptions of liberalism and to what extent Arendt's recipients Seyla Benhabib and 
Jacques Rancière deepen or smooth out these cracks. I have chosen Benhabib's and 
Rancière’s theories as counterparts to Arendt's reading because they provide quite 
opposite answers to address the problem of rightlessness. Benhabib attempts to capture 
the complexity of human rights by using discursive arguments to legitimize an all-
encompassing international human rights system that includes every individual. In 
contrast, Rancière contends that this arguably most intuitive response to Arendt is 
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inadequate and that Benhabib's solution, which fails to overcome Weber's paradox, only 
exacerbates the problem rather than solving it. 
In order to conduct the analysis systematically, the first step is to define the basic 
assumptions of liberalism. The core value of liberalism is individual liberty; this is widely 
agreed upon in research (Wall, 2015; Freeden, 2015; Börzel & Zürn, 2020). Liberty is a 
political value that is distinct from “primitive freedom” as a “proto-political” value, 
because it requires political considerations. Authorities need to limit personal freedom to 
protect the liberty of others, and this authority in turn must be legitimized (Börzel & Zürn, 
2020, p. 15; Williams, 2008). 
Since individual liberty or self-determination is the core value of liberalism, two further 
assumptions can be deduced from this idea. Firstly, because personal autonomy is 
protected by legal limits on individual freedom, there is a distinction between private and 
public domains. Secondly, liberal subjects are believed to have equal moral worth; “a 
group which, of course, has become more inclusive only over time” (Börzel & Zürn, 
2020, p. 15). 
Against this backdrop, then, this thesis specifically questions Arendt, Benhabib, and 
Rancière on the extent to which the concept of the right to rights challenges liberalism, 
particularly its underlying assumptions of self-determination, the distinction between the 
private and public spheres, and the equality of liberal subjects. Benhabib, with her 
discourse-theoretical reflections, and Rancière, with his critical understanding of politics, 
offer quite different answers to the same problems that Arendt raised. Comparing these 
thinkers' ideas to the foundational assumptions of liberalism offers insights into the 
strengths and limitations of the liberal framework and explores alternative ways of 
conceptualizing human rights and democracy both outside and within the liberal 
paradigm. 
One could argue that with the Universal Declaration of Human Rights in 1948 and the 
many human rights doctrines that followed, Arendt's rightlessness problem was solved. 
After all, the Universal Declaration granted the right to have rights to all people, even if 
those rights are not always respected or fulfilled. I will argue, however, that Arendt's 
puzzle is still unsolved, and it is profitable to address the political and philosophical 
problem, especially for practitioners of human rights law and human rights defenders. 
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After a literature review and a theoretical outline of liberal assumptions the thesis analyses 
Arendt, Benhabib, and Rancière on the basis of a threefold assertion of the liberal order. 
The first assertion relates to the idea of individual self-determination or individual liberty. 
An examination of Arendt's, Benhabib's, and Rancière's approaches to understanding 
individual self-determination will reveal internal conflicts and contradictions of 
liberalism. The second assumption of the liberal order is the distinction between private 
and public spheres, which serves to preserve or establish individual self-determination by 
means of state instruments. Arendt, Benhabib, and Rancière raise the question of what 
politics actually is. From this, I will examine whether their understanding of the political 
sphere can withstand this great dichotomy of private and public. The third assumption of 
liberalism is that every liberal subject is equal. It examines how equality is conceptualized 
from a philosophical and political perspective in the texts of Arendt, Benhabib, and 
Rancière. This is particularly interesting because Arendt, Benhabib and Rancière appear 
perplexed in different ways by a liberal order that assumes equality but is unable to deliver 
on this promise in the face of marginalized subjects. 
This thesis belongs to the field of political theory. While it addresses the deontic notion 
of the right to rights associated with legal theory, it focuses primarily on how this legal, 
normative, and anthropological construct of the right to rights challenges the basic 
principles of the contemporary liberal order. While I work with philosophical notions of 
equality and liberty, I do so in an analytical way in terms of political theory. That is, I 
refer to an argumentative and problem-oriented approach that does not rely solely on 
thinkers and exegetes, but “emphasizes logical rigor, terminological precision, and clear 
exposition”. Analytical also means more than a linguistic investigation of philosophical 
terminologies but goes beyond conceptual analysis to develop normative theories (List & 
Valentini, 2016, pp. 525-527). However, this thesis certainly does both: it performs an 
exegesis of Arendt, Benhabib, and Rancière in order to analyse and discuss the 
consistency of their normative theories to conclude with a discussion of the possibilities 
of normative theorizing. 
This thesis therefore conducts an immanent critique of liberalism through a close reading 
of the different interpretations of the right to have rights in relation to core assumptions 
of the liberal order. In doing so, it sheds light on the relation between human rights and 
liberalism and contributes to the ongoing discourse on the perplexities of human rights 
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and questions concerning democratic and political theory. The thesis aims to provide 
insights into the challenges inherent in human rights as a liberal project. 
Literature Review: Political Theory on the Right to Have Rights 
In literature it has been argued that Arendt's concept of the right to have rights challenges 
the liberal form of governance within political theory in one or the other way: either by 
rejecting human rights (Gosepath, 2007; Agamben, 1998) or by promoting active 
membership in a community (Ingram, 2008; Lacroix et al., 2018). The following literature 
review discusses how the literature reflects on how the right to have rights has been 
discussed as a challenge to liberal governance and the liberal order. 
One thinker who uses an analysis of Arendt's right to have rights to answer the question 
of how Arendt contradicts liberal ideas is Gosepath (2007). Gosepath describes the 
tension between a democratic-republican theory of governance, represented by Arendt 
and a liberal one. According to him with Arendt’s demand for a right to have rights, she 
assumes that human rights must first be produced by popular sovereignty, while the 
liberal view, in the sense of Locke, sees basic rights as a morally legitimate limitation of 
popular sovereignty. Gosepath criticizes Arendt for her democratic-republican critique of 
human rights and accuses her of underrating the success story of human rights. 
Gosepath does not specify where he derives his optimism from, but he supports the liberal 
view with the argument that political ideals require a moral, rather than simply a 
functional or membership-inclusive attitude, and that human rights then no longer remain 
an empty abstraction but the moral and pre-positivist condition for democracy (Gosepath, 
2007, p. 284). This could be countered, however, with why, for Gosepath, the inclusion 
of every human being in the political community itself has no moral value. Nor does he 
give an answer as to how he solves the perplexities of human rights revealed by Arendt. 
Through Gosepath’s analysis it has become clear, that Arendt distinguishes herself from 
a liberal understanding of democracy (Gosepath, 2007, pp. 284-5). However, it is 
doubtful that Arendt can be smoothly placed among the proponents of the democratic 
republicans. Arendt herself is sceptical of humanity's ability to guarantee human rights 
for everyone. In this way, she does not trust the republican idea that human rights can 
only be created by the community. 
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Others see Arendt's right to have rights not as a mere critique of the liberal order but as 
an outright jettisoning of the idea of liberal states (Agamben, 1998). This critique echoes 
Edmund Burke, who is most associated with the argument that human rights are worthless 
without a strong state to protect them. Others dispute that Arendt's critique of human 
rights is a mere rejection of the nation-state (Canovan, 1992; Lacroix et al., 2018). 
Canovan is thus arguing that Arendt is regarding the nation-state as a humanistic 
institution that establishes a legal order and safeguards rights. However, Arendt's 
criticism would focus on the fact that the nation-state's weaknesses and tensions have 
allowed for the rise of totalitarian movements. Drawing on history in which minorities 
and stateless persons were denied rights after World War I, Canovan points out that 
Arendt sees citizenship as a crucial condition for individuals to enjoy universal human 
rights (Canovan, 1992, p. 31). 
Canovan argues that those who do not meet this criterion lose their fundamental rights 
and recognition within the community of rights. Therefore, for Arendt, the right to belong 
to a political community is the most fundamental and first human right. Later, Seyla 
Benhabib builds her argument on the Burke-argument emphasizing the significance of 
international political institutions and strong states as the guarantors of human rights 
(Benhabib, 2004). 
Lacroix emphasizes how Arendt challenges the liberal order in a normative manner. 
Arendt opposes the idea of natural rights and argues that human rights are not inherent, 
but rather conventions and forms of recognition produced through agreements between 
human beings. Lacroix sees this as the "political" interpretation of human rights (Lacroix 
et al., 2018). 
Menke opposes Agamben conclusion to Arendt’s critique that the fundamental concept 
of human rights must be rejected as well as Cohen’s proposal for a new moral principle 
to rescue the idea of human rights. Menke stresses that Hannah Arendt saw in the 
Universal Declaration of Human Rights an outdated attempt to reformulate human rights. 
The Universal Declaration merely repeated traditional declarations without accounting 
for the profound crisis that had befallen the idea of human rights since those rights failed 
in the face of totalitarian politics of exclusion (Menke, 2007, p. 740). 
Arendt's critique of human rights, he claims, challenged the fundamental assumptions of 
modern natural law or liberalism, leading to a new understanding of human rights 
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(Menke, 2007, p. 741). To address the human rights crisis, Arendt proposes a new 
anthropology and rights concept. He claims that modern natural law-based human rights 
contradict human dignity. Arendt is against a declaration of human rights that emphasize 
individual human beings, merely as a human being. Unlike natural law, human dignity 
necessitates a politico-linguistic anthropology rather than one based on natural human 
needs or interests (Menke, 2007, p. 754). 
Ingram sees Arendt's paradox of having rights as a challenge to liberalism and concludes 
the classical republican democratic argument that the politics of human rights should be 
based on the practices of rights holders themselves, and that human rights is a principle 
inherent in modern politics and potentially transcends the boundaries of a particular 
political order or community (Ingram, 2008). Ingram argues that Arendt does not 
depoliticize human rights but attempts to resolve the Weber paradox. He argues that the 
politics of human rights are paradoxical because human rights seek to protect individuals 
from arbitrary power, but in order to do so they must themselves use power, creating a 
discrepancy between the bearer of this policy (the powerful) and its beneficiary (the 
powerless) (Ingram, 2008). 
In research, it remains unclear which basic principles of liberalism are subjected to their 
own contradiction by the right to rights and how these paradoxes are then resolved 
through different interpretations. This master’s thesis aims to fill this gap and 
systematically analyses how these interpretations challenge liberal democracy and its 
principles. Hereafter, the three assumptions of the liberal order are discussed in order to 
understand how Arendt, Benhabib and Rancière deviate from them. 
Three Assumptions Underlying the Liberal Script 
This chapter discusses the three assumptions of the liberal order, providing a starting point 
for analysing the theories of Arendt, Benhabib, and Rancière. In order to classify these 
three assumptions, the chapter will first discuss the different paradigms within modern 
political theory. Then, the ideas of individual self-determination, the distinction between 
private and public spheres, and the principle of equality in liberalism will be explained. 
Core Principles of Liberalism 
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There are liberal, deliberative, republican, and postmodern paradigms within modern 
political theories, which differ primarily in their answer to the question of how political 
orders can be legitimized. The paradigm of liberalism is legitimized by the value of liberty 
or self-determination (Zürn & Gerschewski, 2021, p. 15). Shklar argues that "liberalism 
has only one overriding aim" - to secure the necessary political conditions for personal 
freedom (Shklar, 1989, p. 21). Steven Wall (2015, p. 42) describes individual liberty as 
the basic principle of liberalism, around which other values and principles are grouped, 
such as "liberty, rationality, individuality, progress, sociability, the general interest, and 
limited and accountable power" (Freeden, 2015, p. 58). 
In political theory, liberal democracy is a political system that combines liberal ideology, 
which emphasizes individual rights and freedoms, with a representative democratic form 
of government, where citizens elect officials to represent them in decision-making 
processes. Liberalism assumes in principle that private freedom must be protected by 
public authority. Rights are seen as pre-given and limit both the liberty of others and 
legitimize the power of authorities (Zürn & Gerschewski, 2021, p. 15).  
On the one hand, liberalism as a term can describe a form of governance, but on the other 
hand, as the Cluster of Excellence "SCRIPTS - Contestations of the Liberal Script" does, 
it can also describe on a macro level a social order defined by “ideas and institutional 
prescriptions about the organization of society based on the core principle of individual 
self-determination” (Börzel & Zürn, 2020, p. 2). They call this liberal script; however, I 
will stick to the more established term liberal order. Börzel and Zürn use liberal script to 
emphasize that liberalism is a social order that follows a certain basic pattern like a movie 
follows a script, and that liberalism is just one script that exists alongside others. This 
assumption that there are different ideas on which liberalism is based, however, is 
uncontroversial and provides the foundation for this thesis. 
According to Zürn and Gerschewski (2021, p. 15), liberty is a political concept that is 
distinct from a proto-political "primitive freedom” and is defined as the absence of 
restraint and violence from others. The concept of liberty implies that there is a difference 
between private and public domains, and that every individual has the same moral worth. 
Political considerations, such as rights, are necessary for protecting liberty and 
transforming it into a political concept. As John Locke stated, "[t]he end of the law is not 
to abolish or restrain, but to preserve and enlarge freedom" (Locke, 1966, p. 57). 
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Liberalism rejected arbitrary power not only by monarchs and the church (Rosenblatt, 
2018, p. 262), but also by "all regimes with equal trepidation" (Shklar, 1989, p. 28). Shklar 
notes that apart from the prohibition of "interference with the freedom of others," 
liberalism does not dictate any positive values that should influence people's personal 
lives in any way (Shklar, 1989, p. 21). Liberalism must limit itself to politics and 
proposals to allow people to live according to their own beliefs and preferences (Shklar, 
1989, p. 31). 
Fawcett argues that a common tenet of liberalism is the distrust of power, whether it be 
the power of “state, of wealth or of the social community.” This idea is based on the 
insight that unchecked power can become dangerous, as well as on the modern 
understanding that a single authority cannot effectively govern complex societies 
(Fawcett, 2018, p. 2). Therefore, the authority that determines limitations on liberty to 
protect the liberty of others must be legitimized (Williams, 2008, p. 62). 
Zürn and Gerschewski (2021, p. 15) identify two layers of values and assumptions 
underlying liberalism. The first layer is the idea of self-determination, as described above. 
The second level builds on the core values of liberalism and forms comprehensive 
theories that address the issues arising from the first level. This includes normative 
theories, institutional embodiments, and considerations of personhood. The second layer 
describes the multitude of different liberal concepts, such as neoliberalism and includes 
civil, political, and social rights, as well as the rule of law (Zürn & Gerschewski, 2021, p. 
15). The thesis will focus on the first layer of liberalism to understand how the right to 
have rights is speaking to the very basic ideas of liberalism. In the following, the basic 
assumptions of liberalism, which revolve around the idea of self-determination, are 
discussed. 
Self-Determination and Individual Liberty 
The term "self-determination" as a legal principle describes a process by which a group 
of people create their own state or government (Encyclopaedia Britannica, 2023). The 
United Nations Charter (art. 1, para. 2; art. 55, para. 1) contains two definitions of the 
term self-determination: a state’s right to self-determination, which includes the freedom 
to choose its political, economic, social, and cultural systems and second a people’s right 
to freely form associations within a state. 
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That definition distinguishes itself from an understanding of self-determination in 
political and philosophical theory. Furthermore, normative political theory examines self-
determination differently within various normative theoretical paradigms. The liberal 
perspective emphasizes negative freedom, which refers to the autonomy and rights of the 
individual from constraints by the state (individual self-determination) (Shafir, 1998), 
while republican citizenship prioritizes the collective and the common good (collective 
self-determination) (Soysal, 2022, p. 1). 
Empirically, self-determination in the liberal order is viewed as a matter of actors' agency. 
Self-determination, then, refers to the ability of individuals and collectives to determine 
their own identities, organize their social and public affairs, and form meaningful 
communities. It involves the exercise of agency and decision-making power with respect 
to one's own life and the well-being of the collective (Soysal, 2022, p. 2). 
Risse emphasizes that liberalism seeks a balance between individual and collective self-
determination. Extremely prioritizing one over the other would not be within the liberal 
realm. "If individual freedom and self-determination always come first in any social 
setting, human coexistence is impossible. If collective self-determination always trumps 
individual freedom, it amounts to what de Tocqueville called the 'tyranny of the masses'" 
(Risse, 2022, p. 2). He concludes that if “individual freedom is constrained by the freedom 
of others, as the liberal script implies, such constraints can only be justified by a collective 
free will of a community in which the individual is embedded” (Risse, 2022, p. 3). 
Kant, with his deontological theory, is an important philosophical founder of this liberal 
idea of individual self-determination. His categorical imperative describes a fundamental 
principle of morality that is valid regardless of one's goals or context of action. His second 
categorical imperative of autonomy (CIa) states, “[f]or, all rational beings stand under the 
law that each of them is to treat himself and all others never merely as means but always 
at the same time as ends in themselves” (Kant, 1997, p. 41). 
Immanuel Kant emphasizes the importance of treating oneself and others as ends in 
themselves, rather than simply as means to achieve a certain end. Essentially, this means 
that all individuals should be respected and valued for their inherent worth, rather than 
just for what they can do for someone else. With that in mind, every individual is a "self-
authenticating source of valid claims" as Rawls later formulates (Rawls, 1993, p. 32). 
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In his essay "Two Concepts of Liberty," Isaiah Berlin discusses the concept of individual 
freedom and distinguishes it between negative and positive freedom. According to Berlin, 
"Coercion implies the deliberate interference of other human beings within the area in 
which I could otherwise act” (1969, p. 169). This is what Berlin defines as negative 
freedom, which refers to the absence of interference or hindrance from others. In contrast, 
positive freedom describes the desire for self-mastery and control over one's own desires 
and goals, which Berlin locates in the private sphere (Berlin, 1969, p. 179). Berlin 
demonstrates that the anthropological concept and the concept of freedom are closely tied. 
The understanding of human nature is dependent on the definition of freedom and can be 
manipulated, as Berlin warns (Berlin, 1969, p. 178). 
Negative freedom is a political concept that refers to the absence of external influences. 
Positive freedom, on the other hand, is concerning the private realm since it refers to the 
ability to resist internal desires. However, Berlin emphasizes that one's own 
understanding and belief of social connections is essential in determining whether 
something is perceived as a restriction of one's own freedom by others. If I believe in the 
fateful nature of my economic poverty, it is not a restriction from other human beings, 
but rather one of my own abilities. If I believe that my poverty is, to put it simply, a result 
of the economic enrichment of others, then this concerns the political sphere and limits 
my negative liberty rights (Berlin, 1969, pp. 168-169). 
Berlin emphasizes that the freedom of one depends on the unfreedom of another. My 
freedom to live depends on the unfreedom of another to kill me. From this, Berlin 
concludes that there must be control over people's freedoms to protect them. This, in turn, 
requires a boundary between the realms of private life and public authority (Berlin, 1969, 
p. 169). In liberal democracy, there is an ongoing disagreement about how much 
individual freedoms on the vertical (state-citizen) level should be restricted to protect 
those on the horizontal (citizen-citizen) level. However, negative freedom is a political 
concept that does not necessarily presuppose democracy, as control over limiting freedom 
does not require democratic legitimacy (Berlin, 1969, p. 170). 
The historically conditioned detachment of individual self-determination from national 
structures and the expansion of the universalistic concept of individual agency within the 
liberal order has led to challenges and contradictions. Freeman (1999, p. 358) illustrates 
how the constitutional forms of Western liberal democracy adopted by many postcolonial 
states collapsed under the combined pressures of lack of economic development and 
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ethnic conflict. The Westphalian character of the UN world order sought to provide 
recognition, status, and influence on states but denied it to peoples without states. Soysal 
(2022, pp. 4-5) concludes how historically collective action was tied to the nation-state, 
but in the 1960s, with the rise of social movements and decolonization, the emphasis 
shifted to individual action. 
In particular, neoliberalism has decoupled individual agency from national structures and 
emphasized individual rights, capabilities, and choices. Soysal explains how human rights 
instruments further expanded the universalist concept of individual agency. The 
detachment of individual action from the national collective results in challenges and 
contradictions. According to Soysal, one of these contradictions between individual and 
collective self-determination reveals itself as a political tension in relation to borders and 
migration policy (Soysal, 2022, pp. 3-4). 
Self-Determination and the Private and Public Realm 
According to Weintraub, the difference between public and private realm has been a 
central theme in Western thought since antiquity and a central starting point for moral 
and socio-political analysis (Weintraub, 1997, p. 1). Bobbio famously called it the "great 
dichotomy" of thought (Bobbio, 1989, p. 1). In liberalism, this dichotomy automatically 
follows from the right to individual self-determination. Since one’s freedom depends on 
someone else not depriving that freedom, liberalism assumes that there is a public space 
that protects that private freedom. 
Bobbio understands by a great dichotomy one that can divide the world all-inclusively 
into two spheres, and in which each element of this world can be assigned to a dual and 
complementary structure. This dichotomy, in turn, has the consequence that other criteria 
of distinction become secondary. Thus, Bobbio makes the example that in legal language 
the distinction between private and public law takes precedence over all other distinctions, 
it is used uniformly in different historical periods, and it is comprehensive. Thus, neo-
Kantian legal philosophy considers the two concepts of private law and public law as two 
a priori categories of legal thought (Bobbio, 1989, pp. 1-2). 
A concrete example is given by Koskenniemi (2011) who argues that imperialism, 
traditionally thought of as a political and state-based phenomenon, historically operated 
through private businesses. Global relationships of domination were often governed by 
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private-law rules such as the legal concepts of property and contract. These dynamics are 
frequently overlooked and therefore misunderstood in literature due to a separation 
between public and private international law. 
Weintraub, therefore, stresses that “debates about how to cut up the social world between 
public and private are rarely innocent analytical exercises, since they often carry powerful 
normative implication” (Weintraub, 1997, p. 3). He proposes that the demarcation line is 
generally determined by two questions: firstly, what is hidden and what is open 
(visibility); and secondly, what is individual and what is collective (collectively) 
(Weintraub, 1997, p. 5). 
To put it simply, there are three very different traditions of thinking the public and private 
spheres: the classical, liberal, and the opposing, feminist. In classical understanding, the 
"public" sphere is based on citizenship and active participation in collective decision-
making through debate and collective action, whereas the liberal model sees the 
distinction between public and private primarily as a difference between state 
administration and the market economy. According to Weintraub (1997, p. 7), the liberal 
model is the most widespread and dominates everyday legal and political debates. 
The liberal distinction between public and private is often defined as governmental or 
non-governmental and seeks to strike a balance between individuals, organizations, and 
state action through the adjudication of responsibilities. Within this logic, there are 
advocates for greater regulation by the state and a position that opposes such regulation 
due to the belief that social problems and conflicts are regulated by the "invisible hand" 
of the market (Weintraub, 1997, p. 9). The term "invisible hand" was coined by the 
philosopher and economist Adam Smith. Smith assumes in "The Wealth of Nations" that 
individuals, through their own self-interest, naturally seek to use their capital to support 
domestic industries to produce goods and services. The individual thus rather 
unconsciously contributes to the common good, which Smith describes as the "invisible 
hand" (Smith, 1976, pp. 593-594). Although Smith mentions this term in passing, it 
becomes emblematic of liberal economic systems that protect the freedoms of the 
individual in order to indirectly benefit the community. 
As can be read in Weintraub, the concept of the "public sphere" can be traced back 
historically to two events that decisively shaped the notion of citizenship and sovereignty: 
first, the self-governing polis and, second, the Roman Empire. The self-governing polis 
 17 
refers to the ancient Greek city-state in which citizens were active participants in the 
affairs of their community. Active citizenship is central here, with individuals assigned 
certain rights and duties within the political community. The polis, however, was reserved 
for a minority; women and slaves, for example, were excluded from it. The Roman 
Empire, on the other hand, stood for a public sphere with centralized authority at its core. 
The Roman Empire emphasized the concept of sovereignty, where power was 
concentrated in the hands of a central authority, namely the Roman Emperor (Weintraub, 
1997, p. 11). Even if these two fundamentally different concepts of the public sphere 
coincided in the course of their historical development after their rediscovery in modern 
Europe, Arendt and Rancière in particular make clear how important it is to differentiate 
between the various concepts of the public sphere, as will be shown. 
Self-Determination Through Equality 
Equality is a key principle in liberal theory, but its substance is the subject of ongoing 
debate among liberal thinkers. To begin with, equality is not synonymous with "identity 
or sameness" (Heywood, 2015). Rather, it refers to a range of different types of equality, 
including foundational equality (we are all born equal), formal equality (equal political 
and legal rights), substantive equality of opportunity (equal chances), and equality of 
outcome (equal distribution). 
What Arneson describes as “equality of rank, power, and status among members of 
society and that in these ways members of society should relate as equals” is commonly 
called the foundational equality (Arneson, 2015, p. 213). Formal equality includes 
political equality (the right to an equal vote) and legal equality (equality before the law) 
(Heywood, 2015; Arneson, 2015, p. 213). 
Equality of opportunity is a lack of discrimination whereas substantive equality of 
opportunity goes a step further and refers to the idea that everyone should have the chance 
to become qualified for a positions (weak form) or that individuals with the same talent 
and ambition should have an equal chance of competitive success regardless of social 
class, gender, sexual orientation, ethnicity, or other factors (strong form) (Arneson, 2015, 
p. 214). Heywood thus distinguishes between two types of inequalities. Non-legitimate 
inequality is caused by unequal social treatment, whereas legitimate inequality is caused 
by unequal distribution of merit, talent, and willingness to work (Heywood, 2015). John 
Rawls' difference principle reflects the differentiation between illegitimate and legitimate 
 18 
inequality by stating that inequalities are acceptable only if they are rectified to the 
greatest benefit of the most disadvantaged (Rawls, 1971, p. 302). 
Equality of outcomes describes the "equal distribution of rewards" (Heywood, 2015). It 
can mean, on the one hand, that all people have adequate material means and developed 
capabilities to be able to use their freedoms, or that measures are taken, and institutions 
and practices put in place to help those who would otherwise have poorer prospects for 
prosperity (or other social goods) than others. Thus, it prioritizes either equality of 
conditions or equality of opportunity for well-being (“egalitarian or prioritarian 
beneficence norm”) (Arneson, 2015, p. 214). 
John Rawls is one of the most influential liberal thinkers on issues of freedom and equality 
who opposes the prevalent utilitarian moral theory in the Anglo-American world.  
Equality, as Rawls shows, is both the moral justification and formative for a political 
order, particularly liberal democracies. In his seminal "Theory of Justice," he argues that 
“justice is the first virtue of social institutions, as truth is of systems of thought" (Rawls, 
1971, p. 3).  
With the theoretical categories of equality defined above, one could argue that Rawls 
gives priority to formal equality over equality of opportunity. That is because he is 
arguing for the prioritization of the principle of equal opportunity before the difference 
principle. In his thought experiment in the desert, where the discussants do not know what 
advantages or disadvantages, they will face in the real world, the right to freedom is given 
priority. Rawls justifies this by arguing that freedom, as an abstract right, is not a scarce 
good unlike material goods and thus is granted to everyone. It should be noted that Rawls, 
without naming it, assumes that equal freedom is a form of freedom that is both a negative 
freedom and includes only political and civil rights. He thus excludes that economic, 
cultural, or social preconditions are necessary for freedom, be it that there is enough food 
or education as a precondition for freedom. Thus, according to Bowie, Rawls 
distinguishes between the equal right to liberty and the equal worth to liberty, whereby 
Rawls considers the equal right to liberty to be “morally more fundamental than the 
principle for dealing with inequalities in the distribution of economic goods and positions 
of influence [the equal worth to liberty]” (Bowie, 1980, p. 115). Freedom in Rawlsian 
understanding is a right, which is given to establish a liberal social order, but it is not clear 
what this right actually contains. Arendt and Rancière will return to this basic problem of 
liberalism in their reflections on human rights. 
 19 
Heywood points out that different conceptions of equality are sometimes incompatible, 
and that equality of opportunity justifies unequal social outcomes (Heywood, 2015). This 
tension is often weighed in favour of equality of opportunity within the prevailing 
(neo)liberal order, with the argument of incentivizing performance. 
Starting from these basic assumptions of liberalism defined in this chapter, I show in the 
next chapter to what extent Arendt, Benhabib and Rancière deviate from them, but not 
because they reject equality, self-determination, and freedom, but because they ask 
themselves how these promises of liberalism can really be fulfilled. 
Comparative Analysis 
Hannah Arendt: The Right to Have Rights through Political Agency 
Arendt is a much-respected contemporary witness of the catastrophes of the 20th century. 
In "We Refugees" (1943) she describes based on her own experience how the definition 
of a refugee has changed, no longer based solely on their actions, but on their identity. In 
"The Decline of the Nation-State and the End of the Rights of Man," she describes the 
disastrous consequences of the peace treaties of 1919 and 1920, which created national 
minorities and stateless individuals left to their own fate. However, if we only see Hannah 
Arendt as an author who describes the phenomenon of minorities, refugees, and stateless 
individuals within the historical context of the nation-state, we miss the point. She is also 
describing a political theory in which she is deconstructing law, the nation-state, and 
human rights. With her critique, she looks not only to the past, but above all to the future 
of democratic communities. 
Gosepath argues that Arendt's contemplation on the moral claims to rights in the presence 
of totalitarian rule in 20th century Europe ultimately suggests that she believed only the 
state but not the mind (Verstand) could be trusted to safeguard human rights (Gosepath, 
2007, p. 280). Therefore, it demands a positivization of human rights, which, however, 
has the drawback of no longer being universal, but only particular, i.e., only applicable 
within the territorial protection area of a state. This state, however, proved to be the 
greatest enemy of human rights in the face of National Socialism, which questioned 
human’s moral certainties. Therefore, the right to have rights cannot be a pre-positivist 
right in Arendt's logic but is created through collective action in the public political 
sphere. The human being is thus a producer and bearer of rights themself, so Arendt does 
 20 
not pursue a world-encompassing institution as a protector of human rights, but relies on 
strong civil societies (Gosepath, 2007, pp. 282-283). 
With her idea of the right to have rights Arendt challenges the assumption that all 
individuals have inherent rights by nature, by exposing the exclusionary nature of the 
Westphalian sovereign state order. This exclusionary nature reveals itself by denying the 
right to have rights to individuals who are not considered to be members of the political 
community, such as stateless persons, refugees or those who are not regarded as legal 
persons. Yet it is the legal framework of the liberal order itself that causes the state of 
lawlessness in which stateless persons find themselves. 
No Freedom Without Equality 
Arendt's political ideal emphasizes interpersonal connection, mutual recognition, conflict, 
and cooperation. Politics is based on isonomia, which means that all individuals have the 
same claim to political participation and that people build a shared public-political space 
and attain equality via practice rather than rules or structures (Ingram, 2008, p. 410). 
Étienne Balibar (1994, p. 212) therefore understands Arendt's right to have rights as "the 
right to politics.” Arendt believes political action as a "new political principle" could 
provide human dignity with a "new guarantee" (Arendt, 1973, p. ix) and that human rights 
are only meaningful and existent if the action continues (Arendt, 1968, p. 152). “Thus, 
Arendt’s doubts about human rights are based neither on a fetishization of national 
citizenship nor on the lack of a power or law to enforce rights. Rather, they stem from 
what she regarded as limits to practices of mutual recognition” (Ingram, 2008, p. 410). 
Equality in liberal thought is based on the dichotomous thinking of means and ends. That 
is, treating participants' conditions in an (in)equal manner creates a fair competition. 
Equality as a liberal principle is transcended in Arendt's thinking with intertextual 
reference to Walter Benjamin. With her idea of isonomia Arendt practically 
demonstrates what Derrida and Benjamin attempted to show in their metaphysical 
thinking. 
In “Critique of Violence” Walter Benjamin explains how the violent end of a legal order 
is followed by a violent beginning of another. Arendt distinguishes therefore between 
freedom and liberation. The modern concept of revolution is tied to the idea of a new 
beginning and the emergence of freedom. However, freedom and liberation are not the 
same thing, as Arendt points out. She assumes that the basis of freedom has always been 
 21 
uncertain because it has been misunderstood that freedom is a political concept. She 
explicitly understands freedom not as a negative freedom, not as “the more or less free 
range of non-political activities which a given body politic will permit and guarantee to 
those who constitute it” (Arendt, 1990, p. 30). 
Benjamin argues that the law's dialectical up and down, where means and ends are the 
principle, must be broken. He believes legal orders perpetuate the privileges of the 
powerful or create them anew. The boundaries they set are always unjust and ambivalent, 
as they follow the interests or power of those who set them. Arendt's idea of isonomia 
aims to overcome this means-ends thinking, but she remains bound to the legal order. 
Benjamin, on the other hand, sees justice and inequality as an eschatological redemption 
that heralds a messianic age beyond all legal order. Arendt, however, deconstructs the 
law, in accordance with Derrida’s respond to Benjamin's "Toward the Critique of 
Violence," by describing the possibility of the impossibility of justice, which is only 
(in)experienceable within the law. The enduring contradiction legitimizes the law as a 
paradoxical manifestation of this impossibility (Gehring, 1997, p. 244). 
Even though the formulation "the right to have rights" may initially seem like a mere 
demand for foundational and formal equality, its political theory goes far beyond that. 
For Arendt, creating a space free from domination means justice, not the principle of 
equality. The term isonomia comes from ancient Greek and means "equality of political 
rights". In her political theory, Hannah Arendt, following Benjamin, describes precisely 
that rule-free principle in which law-making and law-maintaining power have the same 
source: God (Benjamin) and active citizens (Arendt). In contrast to democracy (rule of 
the majority), she understands this as a state of political freedom in which there was no 
difference between rulers and ruled. Thus, the right to have rights does not merely 
describe the extension of formal equality, but behind it lies a complete rethinking of 
justice and political order. 
The idea of an active citizen is exemplified in its idea of resistance. Étienne Balibar (1994, 
p. 212) interprets Arendt’s right to have rights as “the right to politics”. According to him, 
Arendt questions the conventional notion of authority and obedience within citizenship. 
She introduces the idea of antinomy and emphasizes that disobedience is not synonymous 
with obedience, but rather essential for the legitimacy of institutions. Civil disobedience, 
in her view, is a collective act aimed at restoring the conditions of "free consent" to the 
law. Even though civil disobedience ultimately strengthens the law, it carries risks, 
 22 
including misjudgements and the potential destruction of the very institutions it seeks to 
preserve, criticizes Balibar (2007, p. 736). 
Arendt illustrates her aversion to the means-end paradox with the example of war. When 
peace becomes the end of war, she fears, any means is justified. In doing so, Arendt does 
not argue against war as such but points out that ends can be in strong conflict with ends 
and there is no deciding criterion as to when a means is illegitimate because, after all, it 
is justified by the achievement of the end (Arendt, 2003, pp. 198-199). "Arendt, in 
contrast, seeks to locate the meaning of politics (freedom) in its means, i.e., free political 
action" (Ingram, 2008, n. 17). 
Equality, in Arendt’s view, needs to be understood as a fundamental aspect of freedom. 
Arendt contends that the concept of freedom in politics was first seen in the Greek polis, 
where citizens lived together under conditions of no-rule, expressed by the word isonomy 
as opposed to democracy, rule by the demos. “Hence, equality, which we, following 
Tocqueville's insights, frequently see as a danger to freedom, was originally almost 
identical with it” (Arendt, 1990, p. 30). It is thus questionable whether Arendt can be 
classified as a republican theorist because she strongly warns against the totalitarian 
tyranny of the masses. “This new situation, in which "humanity" has in effect assumed 
the role formerly ascribed to nature or history, would mean in this context that the right 
to have rights, or the right of every individual to belong to humanity, should be guaranteed 
by humanity itself. It is by no means certain whether this is possible” (Arendt, 1973, p. 
298). 
However, Arendt further specifies the relationship between freedom and equality. 
According to her, equality and freedom are directly intertwined. Arendt illustrates this by 
referencing Herodotus' equation of freedom and non-domination, which states that a ruler 
who rules over others is themselves unfree, he deprives himself from his own freedom. 
Only among their equals are people truly free. 
The ancient polis, so Arendt, was not an expression of the equal nature of human beings, 
given since political space was reserved for those who owned property and slaves, but 
rather an institution to bring about equality. This also explains Arendt's scepticism 
towards the belief in natural rights, which assume that everyone is equal. In her idea 
equality must be fought for through political organization. 
Condemned to Private Life 
 23 
In Arendt's political theory, the distinction between private and public space is a central 
moment that challenges the liberal understanding of this dichotomy. Arendt emphasizes 
that it is not the individual who lives out their freedoms privately, and the public space 
that is legitimized to enable these freedoms in one (political) or another (economic) way. 
Arendt argues that public and political life are inherently different and that public space 
as the political sphere is essential for human existence in the Aristotelian sense. 
In contrast, private life is characterized by mere existence and does not possess the 
political status and legal personality that determine the actions of individuals in the public 
sphere. The stateless person no longer belongs to any political community or human 
society. Being relegated to the private sphere means, according to Arendt, that they are 
forcibly deprived of their connection to the world, reduced to bare existence, and thus 
thrown back into the "state of nature". 
With reference to the polis (different from the demos), Arendt describes the political space 
as the condition for freedom and equality. These values are first generated in the public 
sphere and turn into the opposite if the stateless person is relegated to private life. 
“Equality existed only in this specifically political realm, where men met one another as 
citizens and not as private persons” (Arendt, 1990, p. 31). 
The stateless person represents the horror of mankind after the relapse into the barbarism 
of the 20th century. This distinction between private and public realm highlights the plight 
of those who have lost their place in the community and are relegated to the sphere of 
private life, where they become lawless and marginalized. “Man, it turns out, can lose all 
so-called Rights of Man without losing his essential quality as man, his human dignity. 
Only the loss of a polity itself expels him from humanity” (Arendt, 1973, p. 297) Arendt 
argues that even if they enjoy certain freedoms, such as bodily integrity or freedom of 
expression, these do not fundamentally alter their situation of lawlessness but their 
essence of being human gets lost with being deprived of the right to have right (Arendt, 
1973, pp. 296, 301). 
According to Arendt, political life is the realm of common political action and public 
space. It differs in its view from a liberal perspective in that it views public space not as 
a marketplace or sovereign realm, but as a place of becoming human, where human beings 
can perform their political nature. However, for Arendt, political life is not about 
individual agency, but also about creating institutions that bring equality, power, 
 24 
authority, and freedom to the public sphere through the recognition of the political nature 
of the other. These institutions, such as isonomia, promote reciprocity and grant rights to 
individuals, reshaping public space and creating a "second nature" (Balibar, 2007, p. 734). 
Balibar is highlighting the antinomic character of Arendt’s distinction of private and 
public life. He describes how the institutions that create rights and allow individuals to 
become human subjects through reciprocal rights granting can also destroy those rights 
and threaten the essence of humanity. Balibar argues that Arendt rejects the idea that 
social and political institutions bring equality and freedom to a natural state. Instead, she 
argues that institutions introduce equality, power, authority, and freedom in the public 
sphere where they previously did not exist (Balibar, 2007, p. 734). 
According to Balibar, Arendt introduces yet another antinomy into the construction of the 
political, namely via the construction of the citizen. She argues that disobedience to the 
law is not equivalent to obedience but rather that without the possibility of disobedience, 
there can be no legitimate institution of obedience. Balibar is also showing the limits of 
Arendt’s idea and argues that it is unrealistic to assume that a society or state recognizing 
civil disobedience as a fundamental right would be immune to the danger of totalitarian 
transformation (Balibar, 2007, p. 737). 
One could call Arendt's distinction between the private and the public trivial and accuse 
her of merely performing linguistic manoeuvres. But her reinterpretation of the private 
and the public is of great importance in Arendt's political theory. The liberal idea that the 
public state protects the private freedoms of the individual contradicts Arendt's idea of 
participatory community. The events of the 20th century robbed her of the illusion that a 
sovereign state could really deliver on the promise of freedom and equality. Näsström 
explains that during the American and French revolutions, people rejected a divine 
justification for the form of government. God as the guarantor of law was replaced by 
humanity itself as "its own source of authority in political affairs" (Näsström, 2014, p. 
556). This loss of external authority is both liberating and responsible for rights holders, 
creating a sense of "absolute freedom" and a sense of "absolute responsibility" (Näsström, 
2014, p. 546). Näsström understands this burden of responsibility as the driving principle 
behind the right to have rights in modern democracy; it is conceived by Arendt as a burden 
that can only be borne by equal members of a democratic community (Näsström, 2014, 
p. 560). 
 25 
In any case, it could be shown that it is a fallacy to believe that Arendt rejects the state or 
human rights; rather, she embarks on a search for another form of political order that 
opposes the paradoxical character of human rights. 
Self-Determination as Emancipation 
“THE DECLARATION of the Rights of Man at the end of the eighteenth century was a 
turning point in history. It meant nothing more nor less than that from then on Man, and not 
God's command or the customs of history, should be the source of Law” (Arendt, 1973, p. 
290). 
According to Hannah Arendt, the Declaration of the Rights of Man marked a significant 
historical turning point. Arendt argues that the French Declaration signified a shift away 
from the belief that rights derive from divine decree or historical customs, placing human 
beings as the ultimate source of law. However, it is crucial to examine who now assumes 
this role as the source of law. The Declaration is however not referring to the capacity of 
humans to create and establish laws themselves but arguing with their intrinsic value of 
human nature. Thus, the emphasis lies not on the demise of God and not on the 
emancipation of individuals but on their inherent and inalienable natural worth. 
This concept of natural rights invokes Weber's paradox that falls into the traps of the 
paradoxes of means and ends. Ingram refers to Weber’s understanding of politics to 
highlight the paradoxical nature of the politics of human rights. Weber defines politics 
using power and violence to carry out one's will. The paradox of human rights as Ingram 
(2008) shows is that they seek to protect individuals from arbitrary power but must use 
power themselves to do so. This would create a discrepancy between the agent of this 
politics (the powerful) and its beneficiary (the powerless). Human rights are thus 
something that the powerful do for the powerless, using their own power to protect them. 
With the just-explained Arendtian concept of equality and freedom as the result of 
political order, one can already anticipate the fatal pitfalls into which this argumentation 
of natural rights falls. Interpreting human rights in the Weberian way creates inequality 
and lack of freedom, even though their purpose may seem noble and legitimate. If we 
assume that one can only be free among one's equals, then these gifts of the powerful can 
overcome neither inequality nor unfreedom as long as this hierarchy of power is not 
overcome. 
 26 
Arendt argues that human rights have become increasingly important as they have 
replaced the once indisputable divine rights. Either people had rights because they were 
innate, or they served as a means of protecting the individual from the sovereignty of the 
state or the potential arbitrariness of the new social order. Arendt (1973, p. 291) describes 
how human rights were now considered inalienable and could no longer be derived from 
an external authority. "Man" was both the means and the ends of human rights, and 
individuals now possess sovereignty in matters of law. As Rawls would put it, man 
became a "self-authenticating source of valid claims." However, Arendt notes that the 
idea of an "abstract" human being, independent of a social order, did not truly exist. 
Instead, the realization and protection of human rights have become closely tied to the 
concept of popular sovereignty, particularly of one's own people. Because of this 
discursive and power shift, the emphasis has shifted from individual self-determination 
to the collective self-determination of the people as the guardians of human rights. 
Arendt's “Decline of Nation-State” illuminates a troubling aspect of the discourse on 
human rights. She points to the failure of those in power between the two world wars to 
respond to the plight of human beings. Arendt explains that this was not due to their ill 
will, but simply to the indeterminacy and abstractness of human rights. 
In the 19th century, the invocation of human rights was largely superficial, serving to 
defend individuals against state power or alleviate social insecurities resulting from 
industrialization. Arendt contends that human rights became a buzzword adopted by 
advocates for the underprivileged, offering an additional or exceptional right to those 
lacking better alternatives (Arendt, 1973, p. 293). However, the enforcement of these 
supposedly inalienable human rights proved impracticable, even within countries whose 
constitutions were founded upon them, when individuals emerged who were no longer 
citizens of a sovereign state. This confusion between civil rights and human rights 
remains unresolved by the Universal Declaration of Human Rights, as Arendt remarks, 
"Although everyone seems to agree that the plight of these people consists precisely in 
their loss of the Rights of Man, no one seems to know which rights they lost when they 
lost these human rights" (Arendt, 1973, p. 293). 
This logical inconsistency arises from the assumption that human rights are inseparable 
from citizenship. It raises the question of what rights can be demanded by stateless 
persons and national minorities who possess little or no legal status within nation-states. 
According to Arendt's portrayal, these individuals face a state that not only fails to 
 27 
“oppress” them but also does not seek to provide adequate legal protections. If human 
rights are construed as citizen's rights, it becomes uncertain which rights can be claimed 
by those without a recognized citizenship. In this account, it seems that those who have 
no rights cannot lose them. However, if we conceive of human rights as inalienable, 
independent of the state against which they should be demanded, individuals possess 
rights that cannot be enforced against any specific entity or authority. 
This dilemma highlights the complexity of human rights and the challenges involved in 
their practical application. Arendt's point is not to reveal the illogical nature of human 
rights discourse. Rather, she aims to demonstrate the tension for freedom and equality of 
people when human rights are treated as either a means to politics or seen as naturally 
pre-given. According to Arendt, the tensions arising from a misunderstood (negative) 
freedom, which is perceived through the idea of human rights as a natural and defensive 
right against the state, are a cause for the strengthening of 20th century totalitarianism, 
which becomes a principle not only for the elite but also for a large part of society. 
Arendt's concept of self-determination can be read with Nietzsche's critique of morality 
and his call for a re-evaluation of values in his influential essay "Beyond Good and Evil". 
Nietzsche sees the unveiling of the ressentiment and life-denying nature of Christian 
morality as an opportunity for a profound revaluation of all values, to better align them 
with fundamental human psychological drives. Arendt and Nietzsche initially agree that 
moral values are not inherently fixed and objective, but rather a product of society. This 
highlights the significance of the French Declaration of the Rights of Man in 1789, as it 
essentially overturned all moral values that had previously determined the entire political 
order. 
By questioning the notion of morality as fiction, Nietzsche calls on us to question the 
moral framework that shapes our lives. Arendt extends this critique to the prevailing 
social order and its adherence to the ideological worldview and moral standards of the 
bourgeoisie. She acknowledges the legitimate disgust and dissatisfaction felt by 
individuals in a society characterized by artificial safety, culture, and life between the two 
World Wars. 
Arendt (1973, pp. 326-328) describes how this disgust, influenced by Nietzsche and other 
thinkers, evolves into fantasies of world destruction in the "front generation" of her time. 
This generation of elites and masses is seized by an intense desire for the complete 
 28 
destruction of the perceived false world. Their pursuit of chaos and ruin represents a 
rejection of previous attempts at value transformation or political reorganization. Arendt's 
analysis underscores the deep longing for self-determination that can arise as a reaction 
to a suffocating social order, but also describes how this collective and individual self-
determination ends in totalitarian power frenzy. Nietzsche's call to question social values 
in order to make them more useful to people's needs becomes in Arendt, in contrast to the 
"front generation", the political desire for a domination-free space in which preserving 
and creating political forces have the same source: an active political community that at 
best subjugates itself. 
When equality and freedom are interconnected and result from a political order in which 
rights holders and bearers are identical, self-determination is not a matter of individual 
versus collective self-determination. Therefore, the coincidence of these values also has 
implications for the individual, which Arendt explains through the idea of persona. This 
mask, which concealed the face of the actor in ancient theatre, made his own voice even 
more powerful. In Arendt's understanding, persona is the legal person who plays a 
certain role as a citizen, enabling them to claim political relevance by embodying their 
duality as both duty-bearer and right-bearer (Arendt, 1990, p. 107). However, here the 
individual is not a medium of the masses, but in their role as a citizen, they become a 
protector of freedom and equality. 
Seyla Benhabib: Discourse Ethics of the Right to Have Rights 
Liberalism promotes the idea of universal human rights, specifically individual liberty, 
and equality among rights-holders. However, Benhabib questions the universality of 
human rights to make the discourse more equitable and to consider the fact that not every 
human being is considered part of the liberal state order, and that certain groups have 
been historically excluded (such as women, men without property, and enslaved people). 
Benhabib critiques this form of universalism because it disregards the importance of 
specific identities and perspectives. She also sees it as the origin of social inequality, 
claims to power, and conflicts. However, she does not reject universalism entirely; 
instead, she advocates recognizing the coexistence of universal moral principles with the 
value of identities and the need for democratic dialogue and negotiation between different 
perspectives. Benhabib proposes an inclusive, cosmopolitan universalism that respects 
differences and encourages dialogical engagement between diverse communities. 
 29 
Self-Determination through Communicative Freedom 
Benhabib takes Kant as a starting point for her search for possible justifications for the 
universality of human rights. Kant's discussion of cosmopolitan law raises the question 
about the justification of the universality of human rights. According to Benhabib, this is 
mainly because Kant held the view that all individuals are entitled to hold rights based 
solely on their humanity. This vision of cosmopolitanism provides the basis for a new 
world legal order because it emphasizes the unity and diversity of human rights and 
envisions a world with porous borders that transcend the boundaries of the nation-state 
system (Benhabib, 2004, pp. 5-8). 
Already in "The Rights of Others", Benhabib explores the discursivity of the concept the 
right to have rights. She notes that the concept of the right to have rights contains two 
meanings of a right. The first use is a moral imperative to recognize membership in a 
human group, while the second use refers to civil and political rights within a legal 
community (Benhabib, 2004, pp. 56-58). In "Dignity in Adversity" from 2011, Benhabib 
interprets the right to have rights as universal moral principles that safeguard and promote 
the practice of communicative freedom. These rights safeguard individuals' capacity to 
engage in dialogue, express their views, and make decisions based on reasons they accept 
as valid. This is what Benhabib calls the discourse-theoretic justification of the principle 
of rights. 
Therefore, Benhabib’s understanding of the right to have rights is not so much about the 
enforceability of rights as it is about justifying human rights. This justification serves as 
the basis for deriving a practice of human rights. “’Justificatory universalism’ is at the 
heart of reason as a reason-giving enterprise and so is the recognition of the other as a 
being capable of communicative freedom and of the right to have rights” (Benhabib, 
2011, p. 71). 
As Ingram (2008) has already shown, Benhabib understands the right to have rights as a 
political right and expands Arendt's notion of the right to have rights to include the 
cosmopolitan claim of every human being to be recognized and protected as a legal entity 
by the global community (Benhabib, 2011, p. 9). She argues that the nation-state is both 
too small to deal with certain global problems and too large to meet the demands of 
identity-based movements. She claims that territoriality is obsolete in today's complex 
world. This perspective underscores the need for self-determination beyond the borders 
 30 
of the nation-state and the recognition of individual rights in a global context (Benhabib, 
2004, p.4). 
However, Benhabib is aware of the problems of universalism in its imperial dimension, 
as well as the danger of patronizing people and depriving them of their political agency. 
She sees a cosmopolitan norm as a chance to organize especially oppressed groups 
democratically beyond state borders (Benhabib, 2011, p. 149). 
Benhabib distinguishes between four types of universalism: essentialist universalism, 
justificatory universalism, moral universalism, and legal universalism. Essentialist 
universalism assumes a basic human nature or essence, while justificatory universalism 
argues for the normative and universal capacity of reasoning. Moral universalism asserts 
that all human beings are entitled to equal moral respect. Legal universalism, which 
Benhabib sees as crucial, asserts that all people have certain basic human rights that 
should be protected (Benhabib, 2011, pp. 62-64). 
Benhabib argues that any legal and political justification of human rights (legal 
universalism), is based on justificatory universalism. Justificatory universalism, in turn, 
cannot do without recognizing the communicative freedom of others, which means 
granting them the right to accept only those rules of action of which they are convinced 
by reasons. This idea is rooted in moral universalism, which emphasizes equal respect for 
others as beings with communicative freedom. However, the moral universalism that 
Benhabib has in mind does not prescribe a specific list of human rights beyond the 
protection of communicative freedom (Benhabib, 2011, p. 64). 
Benhabib is making an important point here, which not only justifies the legal 
universalism of human rights, but also addresses tension between republicanism and 
liberalism in political theory. In a liberal constitutional democracy, the republican idea of 
self-government of the demos is combined with the liberal pre-given conviction of strong 
human rights. Benhabib acknowledges not aiming to create an incontrovertible theory of 
human rights, but she argues that communicative freedom is a crucial precondition for 
any meaningful account of human rights and extends this concept to develop an 
understanding of human agency. This is similar to Habermas's theory of co-originality. 
Habermas (1992), as a representative of deliberative theories, overcomes the opposition 
of liberalism and the republican ideal with his theory of co-originality, showing that 
neither side needs to be prioritized, and that private and public self-determination 
 31 
mutually produce each other. However, she goes further by showing that the universalism 
of human rights is only possible through the individual's capacity for action (Benhabib, 
2011, p. 64). 
On the Problem with the Circular Reasoning of Equality 
Benhabib derives principles of rights from Kant for her project of a discourse-theoretic 
justification. She argues that legal principles such as generality, formal reciprocity, and 
equality apply to these principles. However, unlike Kant, Benhabib does not inquire about 
universal laws that we can will without self-contradiction. Instead, she examines the 
validity of norms and institutions that would be acceptable to those affected (Benhabib, 
2011, pp. 64-65). Because only this form of standard setting is truly equal, which also 
grants equal rights to all perspectives. The question arises of how this can be achieved. 
Benhabib describes two perspectives for considering the rights of others: the "generalized 
other" and the "concrete other." The perspective of the "generalized other" requires a 
concrete anthropological foundation from which rights and obligations can be derived - 
namely those that we would demand for ourselves. In Benhabib's view, these generalized 
others can provide a framework for discourse by referencing commonalities and deriving 
norms of formal equality and reciprocity. 
The perspective of the "concrete other" differs from the first, as it focuses on the 
individual as a unique being with specific emotions, considering societal-historical and 
individual contexts, including individual and collective identities and self-determination. 
It emphasizes difference rather than commonalities by starting from the individuality of 
the other. Benhabib thus calls for both perspectives to be taken complementarily, that of 
normative equality and that of complementary reciprocity, to consider not only the 
humanity of the other, but also their individuality (Benhabib, 2011, p. 69). 
Benhabib's theory innovatively avoids certain pitfalls of the perplexities of human rights. 
Instead of basing human rights on metaphysical ideas of natural rights or possessive 
individualism, Benhabib sidesteps the problem that Arendt already recognized: how and 
against whom can one enforce natural rights; rights that are naturally pregiven even when 
they do not exist? Benhabib understands human rights as both a legal entity and discursive 
one that does not need to reflect the legal and lived reality. Benhabib reminds us of the 
power of human rights discourses in shaping our understanding of justice. 
 32 
With her theory of "another universalism" Benhabib proposes an intermediary theory 
between natural law and positivism for defining human rights. Unlike positivists, who 
argue that legal systems create their own laws, Benhabib's "other universalism" 
recognizes the tension between the universal nature of human rights and their expression 
in specific legal and cultural contexts. To address this tension, Benhabib proposes the 
concept of "interactive universalism" or "democratic iterations." This approach involves 
actively engaging in ongoing discussions and reinterpreting human rights in specific 
social and political contexts. By participating in these dialogues, human rights can 
challenge the legitimacy of legislation and bridge the gap between natural law theory and 
positivist legal theory. 
The question arises as to what equality means for Benhabib. On one hand, she aims to 
create legal discourses that do not speak of the Euro-centric universality (unlike Hegel to 
which she refers). Thus, she questions the universality of rights themselves and limits this 
universality to certain frameworks that make a substantive discourse on rights possible, 
such as that of equality. Therefore, she suggests that it is important to include those who 
are affected by the discourse. 
On the other hand, we could raise the critical question with Gayatri Spivak on who can 
actually speak in this discourse. Benhabib argues that all human beings who are capable 
of speaking a natural or symbolic language also possess communicative freedom. If 
human rights are only universal when all perspectives are represented, then Benhabib's 
universalism is more of an end and, at best, not a means to obscures the actual power 
relations. 
“Speaking” in Spivak’s understanding is not only about cognitive abilities to speak but to 
be heard. Speaking is in this context about the freedom and power to do so in order to 
establish rights. This creates a circular reasoning (we need human rights to demand for 
human rights). And it seems to be insufficient to break the circular argument only by 
shifting human rights to a discursive level. We face a problem when subalterns are unable 
to voice their opinions. Without their voices being heard, they cannot be included in the 
discourse. This would either result in a discourse of the powerful or, more optimistically, 
we assume that there exist ways that assure that subaltern voices can be heard. If so, as 
Ingram (2008, p. 405) points out, Benhabib manifests Weber's paradox in which human 
rights are not negotiated equally, but rather the powerful grant human rights to those in 
need as if giving away old clothes to those who need them (Rancière, 2004, p. 307). The 
 33 
audibility of subaltern voices challenge Benhabib's notion of creating a culturally 
sensitive, anti-imperialist, inclusive and equal discourse. 
Benhabib rejects her critics' notion that the Other is based on an anthropological 
conception. Instead, she emphasizes the discursivity of human experience as the basis for 
understanding the Other. According to Benhabib, this understanding is fluid and fragile 
and represents a practical possibility that does not necessarily translate into a political 
reality (Benhabib, 2011, p. 69). I contend that even if the generalized other is subject to 
discursive fluctuations, Benhabib is not describing the discourse itself, but a meta-
discourse that deals with an idea of the human being that is assumed to have similarities, 
differences and the ability to speak and negotiate even when she highlights that 
universalism as she sees it is “an aspiration, a moral goal to strive for; it is not a fact, a 
description of the way the world is.” Hence, she possesses a meta-anthropological 
comprehension of the discourse participants. 
And so Benhabib (2011, p. 71) is subject to a circular conclusion, which she herself 
understands quite positively as a hermeneutic circle. She tries to avoid imposing power 
structures on the discursive space, but at the same time establishes universal rules of 
discourse that promote equality, reciprocity, symmetry, etc. as prerequisites for discourse 
and thus enables the discourse. After all, this circular reasoning is difficult to resolve and 
defines the horizon of meaning (Sinnhorizont) of a justificatory universalism. 
Osborn criticizes Benhabib's non-essentialism, warning that the rights of Others could 
collapse "whenever we detect that 'discourse' is no longer a realistic possibility." He sees 
the only way out of Benhabib's dilemma as conceding a philosophically or religiously 
underpinned personhood, since otherwise “the quest for universal values by way of 
‘democratic iterations’ alone turns out to be the moral and epistemological equivalent of 
peeling onions” (Osborn, 2010, p. 123). 
Public Space Beyond Borders 
Benhabib aims to free human rights from the dilemma inherent in the opposition between 
republican and liberal understandings of democracy. The liberal position considers 
human rights a prerequisite for a democratic order, while the republican position asserts 
that the demos must produce them. According to Benhabib's discourse model, 
actionability is not only possible through the existence or fulfilment of human rights; 
 34 
rather, recognition of the rights of others is essential for challenging or accepting our 
claims to rights. In this model, recognizing the right of others to have rights is essential 
for moral justification (Benhabib, 2011, p. 70). 
Therefore, Benhabib's conception of the right to rights emphasizes the importance of 
public autonomy, where individuals collectively decide and shape human rights through 
democratic deliberation and engagement. The public sphere is a space of democratic self-
governance, where individuals can exercise their autonomy and make communally 
grounded decisions. These decisions are considered grounded when they incorporate the 
perspectives of both the generalizing other and the concrete other. 
The concept of universalism, as aspired to by Benhabib, is understood as a moral ideal 
rather than a static description of reality. Her idea of a human rights discourse involves 
this ideal of “political struggles, social movements, and learning processes within and 
across classes, genders, nations, ethnic groups, and religious faiths” (Benhabib, 2011, p. 
64). Publicity is thus a struggle for power and recognition of the perspective of others. 
But what does such a public realm look like, if, as Benhabib demands, it should be a site 
of self-determination both within and beyond the nation-state? Benhabib criticizes Arendt 
for using the nation-state as the existing framework for discussing the right to have rights 
and her missed opportunity to examine alternatives that do not adhere to the nation-state 
model. Benhabib sees the modern nation-state not as a rigid structure but as an entity that 
produces an ongoing process of transformation and collective identity formation through 
democratic iterations. This transformation of democracies, Benhabib argues, prompts 
ongoing debate and experimentation about collective identities. These processes are 
inherent to multicultural and multinational democracies and are in a balancing act 
between human rights and national sovereignty (Benhabib, 2004, pp. 64-65). For 
Benhabib, human rights are a site of collective identity formation due to their 
transformative universality, which obliterates and re-emerges national borders. 
Benhabib interprets Arendt to be against a world state or world organization because it 
would undermine the right to democratic self-determination. Instead, she would argue for 
the establishment of a republican polity, which, by being incorporated into a political 
community, would simultaneously come with its own conditions of exclusion. As Ingram 
has already shown, Benhabib misunderstands Arendt at this crucial point, since Arendt's 
experience of totalitarianism (which, after all, was supported by the masses) makes her 
 35 
sceptical of the fact that humanity can act as a guardian over the humanity of all human 
beings: "global government would not protect a right to have rights because it would not 
prevent part of humanity from violating the rights of the rest" (Ingram, 2008, p. 409). 
Benhabib points to the successes of international law and international institutions in 
addressing some of the human rights dilemmas, such as protecting refugees and 
decriminalizing migration. Benhabib thus sets the goal of separating the right to have 
rights from national citizenship and recognizing the universal personhood of all people 
(Benhabib, 2004, p. 65-68). In doing so, however, she encounters a justification constraint 
regarding the universality of human rights. This motivates her metaphysical inquiry about 
the universality of human rights, which is fed by the experience of imperialist 
interventions by great powers committed in the name of human rights. 
But Benhabib herself, as becomes clear at one point in particular, sees the nation state as 
providing more suitable access to the public sphere and thus to public decision-making. 
She describes the challenges that liberal democracies face in reconciling differing notions 
of equality and in managing the tensions between the ideals of world government and 
nation-state systems. In it, she pleads for global guidelines and standards that are open to 
local interpretation. She argues, citing Nancy Fraser, that democratic societies have 
characteristics such as a public space for expression and exchange, that in contrast to the 
global context, democratic societies possess the capabilities to create a common 
framework of governance that establishes clear lines of accountability, and the possibility 
of transient points of democratic convergence to reconcile differing notions of equality 
(Benhabib, 2004, p. 109). 
Benhabib aligns herself with liberal thought in her understanding of public and private 
spaces. Similarly, to Rawls, she does believe that individuals have a self-authenticating 
source of valid claims that establish both the concrete form of the Other and universal 
legal claims that are negotiated in the public sphere. Unlike Arendt, she does not 
deconstruct the private space. “For Benhabib, cosmopolitan rights should be seen as 
attaching first and foremost to the individual and as flowing from the personal autonomy 
and freedom of every human being as a human being, rather than from the collective 
goods of states, cultural groups, or other social units” (Osborn, 2010, p. 122). Although 
Benhabib likes to use her discourse on human rights to transcend national borders, in 
practice she remains rooted within the national boundaries. The question that arises is 
how effective Benhabib can be in resolving the "constitutive dilemma for liberal 
 36 
democracies": they no longer adequately describe or inscribe political identities (Osborn, 
2010, p. 118). Benhabib's idea of an international public sphere is in danger of being 
reduced to a free market, where the rights of free movement are only granted to goods 
and in which the Other is misused to obtain claims of power through universal values. 
Jacques Rancière: On the Right to Dissensus 
Rancière believes that political philosophy is always a response that comes too late to an 
already-existing form of politics. Democracy is already in place and functioning before 
its theoretical underpinnings or "arkhê" are fully understood. Therefore, the delay of 
philosophy is a flaw of democracy (Rancière, 1999, p. 62). Rancière describes an 
epistemological dilemma: we are already embedded in a political order before we can 
even reflect on it. Conversely, Rancière understands it as the task of political theory to 
steer politics and political order in the right direction which leads to a productive dialogue 
between politics and political philosophy. 
Rancière believes that political philosophy and politics are intertwined in a complex 
relationship of rivalry, mimicry, and interpretation. This dialogue takes the form of 
disagreements and misunderstandings that can lead to productive outcomes and a 
renewed understanding of emancipatory politics. Political philosophy seeks to resolve 
paradoxes in order to establish agency and eliminate injustice, exclusion, and oppression. 
Describing and intervening in politics through political theory is then re-appropriated by 
political actors. Political theories, in turn, attempt to appropriate and reinterpret these 
concepts, this endless dialog is leading to the overcoming of a difference between 
philosophy and politics and describes the dynamics of political thought and political 
action (Bosteels, 2010, pp. 81-82). 
Rancière's critique of Hannah Arendt and human rights is not intended to provide a 
normative or practical guideline. Instead, his aim is to create spaces for political action 
by an immanent critique of political theory. However, these spaces for action are 
intentionally fragile and process oriented. Rancière’s way of thinking is a response to the 
National Socialism and totalitarianism of the 20th century. It involves enduring the 
unforeseeable while considering differences. 
On the Non-Existence of Equality and Liberty 
 37 
"Equality is a key term that helps distinguish Rancière's thinking from liberalism 
precisely because both approaches to politics make equality central and essential," 
Chambers summarizes lessons from Rancière, and he further elaborates, "Equality is the 
condition of possibility for liberalism, but liberals cannot establish it". This issue that 
Chambers raises here already anticipates the dilemma of the right to have rights. In a 
liberal order, the concept of natural rights is necessary, but it is unclear who is capable of 
protecting these innate rights. “In liberal theory, equality is a philosophical ground for 
politics, but politics is not really about equality”. Rancière rejects the idea that equality 
would be the foundation or end of politics. According to Rancière politics do not occur 
because of equality, and it “cannot and does not seek to achieve equality”. Moreover, 
equality is not a state that can be determined or measured in any way (Chambers, 2012, 
pp. 25-29). 
Rancière critiques disruptive equality primarily through his critique of the Platonic 
understanding of politics, which he refers to as archipolitics. Plato's republic seeks a true 
structure that restores a natural order, materialized in a republic that embodies justice and 
is free from all contradiction. The idealized form of the state described by Plato is one 
where each individual finds their prescribed tasks without disobedience, achieving the 
state of justice through the creation of legitimate inequality. Rancière considers this idea 
of society unrealistic and explicitly warns against such fanaticism in light of National 
Socialism (Rancière, 2004, p. 309). He therefore criticizes modern republicanism for 
continuing the legacy of Plato's archipolitics. 
"A verification of equality is an operation which grabs hold of the knot that ties equality 
to inequality" (Rancière, 2009, p. 280). Rancière emphasizes detecting inequality as a 
means of political theory, rather than creating equality. It is questionable whether Plato's 
Republic symbolizes what true equality should look like. Rancière's understanding of 
equality is not a state, but a process. He develops a political order that does not resemble 
any natural order, but rather creates an order where equality is not misunderstood as the 
freedom of everyone to speak on behalf of the people, Bosteels describes Rancière's ideas 
(Bosteels, 2010, pp. 83-86). “Politics is the sphere of activity of a community that can 
only ever be contentious, the relationship between parts that are only parties and 
credentials or entitlements whose sum never equals the whole” (Rancière, 1999, p. 14). 
Instead of a fixed nature, Rancière's understanding of politics describes a division and 
 38 
contestation of power, emphasizing tensions and rivalries between philosophy and 
politics. 
The concept of equality is frequently defined as equality of an individual in relation to 
others. However, Rancière offers a different perspective on equality that cannot be solely 
understood in terms of individuality. For him, the question of the subject of human rights 
is crucial, hence the title of his essay, "Who Is the Subject of the Rights of Man?" In order 
to grasp the significance of the subject of human rights within Rancière's framework, it is 
crucial to comprehend his conception of political subjects or parts of a community. For 
Rancière, politics is "not a matter of ties between individuals or of relationships between 
individuals and the community," but a counting of community parts (Rancière, 1999, p. 
6). Individuals do not appear in politics in their singularity, but as those who govern and 
those who are governed. Rancière disagrees with the idea that the combination of these 
parts produces the common good. For him, this is always a "false count, a double count, 
or a miscount" (Rancière, 1999, p. 6). It is a false promise that the demos is free and equal 
because they might be so compared to themselves, but not compared to those who govern 
(Rancière, 1999, pp. 8-9). He determines that “freedom of the demos is not a determinable 
property but a pure invention” (Rancière, 1999, p. 6). 
In Rancière’s idea, equality does not mean the aspiration to a homogenous mass, as Carl 
Schmitt's idea of democracy suggests, but equality refers to question of access to self-
determination and the preservation of differences. At first glance, this may seem very 
much like a liberal understanding of equality and self-determination. What is decisive, 
however (and in this respect he differs significantly from liberalism), is whom Rancière 
has in mind by this equality. And it is not those who are already participating, but the 
uncounted of democracy who have no share in the political. The uninvolved or subaltern 
voices are thus at the centre of Rancière's concept of politics. He is not concerned with 
eliminating inequality among equals. Rancière preserves this difference, in the spirit of 
Adorno, who dreams of a democratic society in which one can "be different without fear." 
That Rancière's concept of equality is disruptive and therefore thought of quite differently 
from liberalism is well illustrated by Rancière's critique of the Aristotelian conception of 
politics. Aristotle's concept of politics does go further than Plato's, considering the 
inherent political nature of human beings and recognizing the existence of conflict and 
inequality within the city-state. However, Rancière criticizes that these lines of conflict 
 39 
are obscured the moment a stable constitutional regime is established. Rancière refers to 
this understanding of politics as parapolitics. Parapolitics appears as a translation of all 
politics into a matter of "power and command," Bosteels (2010, p. 87) summarizes. 
Aristotle anticipates the modern conception of politics as the question of power and its 
legitimacy. Parapolitics shifts the focus from the effect of equality to the inegalitarian 
logic of social bodies and directs it toward institutions (Rancière, 1999, p. 73). Rancière 
describes this process as a "recouvrement," which is a recovery from politics that also 
serves as a surreptitious cover-up (Rancière, 1999, p. 72). If the accusation of unequal 
access to power is used as an argument to legitimize the focalization of power, this 
institutionalization of power lacks any legitimacy. He criticizes the act of attempting to 
legitimize sovereign power since it automatically excludes people from power. 
According to Rancière (Rancière, 1999, p. 76), Hobbes Leviathan as modern parapolitics 
is a response to the potential threat of ancient parapolitics in that it seeks to answer the 
fundamental question of the origin of power and whether or not it is legitimate. At its 
core, parapolitics is always about the opposition between legitimizing an unequal power 
relationship between the individual and the sovereign (Rancière, 1999, pp. 77-78). What 
Rancière criticizes about parapolitics, however, is this obscuring of the lines of conflict, 
the concealment of the paradox of the disappearance of the uninvolved. According to 
Rancière, this uninvolved is the essence of actual politics. “The problematization of the 
'origins' of power and the terms in which it is framed the social contract, alienation, and 
sovereignty - declare first that there is no part of those who have no part” (Rancière, 1999, 
p. 77). Parapolitics lacks a collective act that overcomes the theoretical gap between the 
individual and the sovereign. 
International or national institutions that aim to establish the right to have rights could be 
seen as Aristotelian or Hobbesian parapolitics that conceal the gap between the individual 
and the sovereign unless it is exposed by a collective act. “They [human rights] appeared 
more and more as the rights of the victims, the rights of those who were unable to enact 
any rights or even any claim in their name, so that eventually their rights had to be upheld 
by others, at the cost of shattering the edifice of International Rights, in the name of a 
new right to ‘‘humanitarian interference’’—which ultimately boiled down to the right to 
invasion” (Rancière, 2004, p. 298). This exemplifies Rancière critique of human rights as 
reinforcement of existing hierarchies. He imagines a politics that overcomes the exclusion 
 40 
of marginalized subjects. This is what Rancière ultimately means by radical equality, 
which challenges and redistributes political power structures. In Rancière's vision, 
equality is a force that challenge and disrupt political power, calling for collective action 
instead of legitimizing it. “Politics occurs because, or when, the natural order of the 
shepherd kings, the warlords, or property owners is interrupted by a freedom that crops 
up and makes real the ultimate equality on which any social order rests” (Rancière, 1992, 
p. 16). 
Critique of the Depoliticization of Private Life 
In Rancière’s understanding, human rights as natural rights do not protect individuals 
from the state, but rather depoliticize them to a natural state. This enables the state to deal 
with mere lives instead of subjects and to freely dispose of the state of exception. 
Consequentially human rights as natural rights oppose the idea of self-determination. The 
political subject status, which is necessary for acting on one's own authority, is exchanged 
for a depoliticized state of nature that is automatically put into effect at birth. Therefore, 
Rancière sees Arendt's concept of the right to have rights as a critique of human rights as 
such and democracy itself. In democracy human rights were created for individuals who 
are considered to be rightless, relegated to the private sphere, and excluded from politics 
to the realm of necessity (Rancière, 2004, p. 298). 
Rancière extends Arendt's proposition that no one even wants to oppress the rightless by 
assuming the existence of a "state beyond oppression," which Arendt calls "the dark 
background of mere givenness" (Rancière, 2004, p. 299). Rancière describes the 
condition of the rightless, who have been depoliticized and reduced to pure 
anthropological sacredness. This state, in which no one experiences oppression, aligns 
with Plato's concept of an ideal state where individuals seamlessly assume their roles 
without resistance. Therefore, Rancière does not criticize the incomplete application of 
human rights to stateless individuals, but rather derives his general criticism of human 
rights that do not exist in the realm of politics, as they are based on an anthropological 
and naturalistic argumentation. 
To support his argument, he analyses the two forms of freedom that Arendt speaks of: 
social and political freedom. Arendt criticizes the confusion between these two freedoms 
(Rancière, 2004, p. 298). He refers to Agamben's “Homo Sacer”, in which Agamben 
distinguishes (in reference to Foucault) between zoe (bare physiological life) and bios 
 41 
(form of life) and bio politkos (the life of great actions and noble words). Rancière argues 
that reducing human life to zoe empowers the sovereign not only with the right to kill but 
also with the right to biopolitical control over their lives (Rancière, 2004, pp. 299-300). 
Rancière criticizes the equation of sovereign power and biopower, where the Rights of 
Man become absolute state power. The Rights of Man consider natural life as the source 
of rights, which is why the biological process of birth becomes the basis of sovereignty. 
However, the appearance of refugees in the twentieth century disrupted the connection 
between birth and nationality, revealing the underlying "nakedness of bare life" that is the 
basis of the Rights of Man (Rancière, 2004, p. 300). 
Rancière disagrees Arendt's idea that bare life takes place in a sphere without oppression. 
He argues that this imagination would only serve Arendt's idea about the existence of a 
private space that is removed from the political. “The conceptualization of a ‘state beyond 
oppression’ is much more a consequence of Arendt’s rigid opposition between the realm 
of the political and the realm of private life” (Rancière, 2004, p. 299). That there is no 
oppression of bare life is contradicted by Rancière with all rhetorical means. He argues 
that the moment human is stripped of their political essence and reduced to their mere 
biological life, this biological life is used to maintain absolute power over life. Rancière’s 
exercises his critique of human rights against the backdrop of the Holocaust and the Nazi 
euthanasia laws. Human rights "make natural life appear as the source and the bearer of 
rights", they reduce people to their bare biological existence (Rancière, 2004, p. 300). 
Rancière argues with Agamben that the Holocaust reveals the hidden truth of the Rights 
of Man: the status of bare, "undifferentiated life, which is the correlate of biopower." 
Concentration camps, according to Agamben, represent the "nomos of modernity” 
(Rancière, 2004, p. 301). Rancière interprets this "nomos of modernity" as the reason why 
Arendt is so concerned with banishing private, apolitical life from the realm of politics, 
and therefore emphasizes the principle of political action that constitutes the true political 
space and sweeps aside the “ambiguous actors” (Rancière, 2004, p. 302). But these 
ambiguous actors embody both zoe as the mere physiological life and bios as the political 
form of life, in Rancière’s sense. 
But Arendt's desire for a pure politics contains an ontological trap, suggests Rancière, as 
it creates exactly what she warns against. The distinction between the individual and the 
state gives the state the power to control the individual and equates the state with the 
power to decide on the state of exception. He refers here to Carl Schmitt, who in his essay 
 42 
"Political Theology" defines sovereignty as the power that decides on the state of 
exception (Schmitt, 2005, p. 11). This exceptionality of sovereign power abolishes the 
indistinguishability between zoe and bios, that is, between natural and human life. 
“Politics thus is equated with power, a power that is increasingly taken as an 
overwhelming historical-ontological destiny from which only a God is likely to save us” 
(Rancière, 2004, p. 302).  In other words, Arendt’s call for political action becomes 
trapped in a polarized relationship between bare life and the state of exception; her 
ontology of power creates an epistemological dead end. Arendt's line of argument, 
Rancière criticises, proves effective for “depoliticising questions of power and oppression 
and setting them in a sphere of exceptionality that is no longer political” (Rancière, 2004, 
p. 299).  
If Rancière rejects the dichotomy of political and private spheres, the question arises as 
to how he defines the political sphere. In contrast to Arendt, Rancière argues that politics 
does not separate one particular sphere of political life from other spheres. Thus, he does 
not see the private and public spheres as a dichotomy that orders the world and our 
thinking. Rancière understands politics as a totality of community that separates itself 
from itself. This separation arises from the unequal distribution of power and the 
oppression of certain groups. However, politics simultaneously brings these divisions, 
contradictions and struggles within society to light. It constitutes power and challenges it 
at the same time. Politics is by no means a dichotomous sphere, as the liberal order 
assumes. 
Rancière distils Arendt’s critique to the assumption that there is no subject for human 
rights. He argues that, in her reading, human rights are either empty or tautological. If 
human rights do not apply to those who lack rights (stateless), then they are empty and 
therefore meaningless. Conversely, if they only apply to those who already have rights 
(citizens), they become tautological and therefore useless. Rancière, however, offers a 
different perspective: human rights are “the rights of those who do not have the rights that 
they have and have the rights that they do not” (Rancière, 2004, p. 302). Rancière commits 
much more than a mere quibble here. With this simple reversal of the subject of rights, 
Rancière aims to place those who do not participate at the centre of his political theory. 
He does not make biological life the rights-holder of human rights, but the demos, i.e., 
those who are excluded from the political community. The demos is already a political 
entity here, even if it separates politics from itself. 
 43 
Self-Determination as a Process of Differentiating the Undifferentiated Demos 
Rancière's critique of metapolitics is an attempt to restore the concept of politics. He 
criticizes Marx's confusion of politics with (what he calls) police. Therefore, he asks 
where political moments are possible and how to recognize police as a form of command. 
Metapolitics, which is Rancière's third archetype of politics, unfolds on the basis of 
Marx's social critique. Both Plato, as a representative of archipolitics, and Marx, as a 
representative of metapolitics, reject the current state of politics and seek to create a new 
social order. However, Plato claims to know the truth, while Marx points out the falsity 
of the present order. Marx claims that, on the one hand, there is no truth outside of politics, 
but that, on the other hand, truth is obscured by politics. Metapolitics provides a critical 
analysis of politics and political philosophy that acts as an emancipatory force, lifting the 
veil of politics (Rancière, I999, p. 82). For this reason, Rancière summarizes politics as 
"the lie about a reality that is called society" (Rancière, 1999, p. 83). 
It can be seen, then, that Rancière, like Arendt, seeks to purify the political sphere. The 
question then arises whether Rancière's distinction between politics and police does not 
also lead into a tautological trap, as the latter accuses Arendt of doing. But the attempt to 
beat Rancière at his own game is futile. To be sure, he attempts to conceive of politics as 
a realm of autonomy and dissent and to contrast it with the police, which, unlike politics, 
functions according to the principle of command and obedience. But unlike Arendt and 
the liberal order, he does not contrast politics with a private life. Instead, he politicizes 
the being (beyond a biological existence) of those who have no role within politics, who 
do not have the right to have rights. 
In Rancière’s logic, one could argue that political action is neither caught in a polarized 
relationship between bare life and the state of exception, nor in a relationship between 
obedience and resistance. If political action were directed solely against a state, then this 
statement would be quite true. However, this is not what Rancière argues for. For 
according to his conception, political action is only possible between subjects. The bearer 
of human rights is therefore neither abstract nor biological. Political predicates are not 
fixed attributes of particular subjects, but open to interpretation and dispute. This allows 
for a discussion of what these predicates really mean and to whom they apply in different 
circumstances. The essence of political action, then, is the ability to question the meanings 
 44 
of freedom and equality (Rancière, 2004, p. 303). With his political theory, Rancière is 
therefore essentially engaging in politics. 
For Rancière, the distinction between private and political life is not a priori given and 
marks the core of politics. He illustrates his argument with Olympe de Gouges, a 
revolutionary during the French Revolution. She argued that if women had the right to be 
executed, they also had the right to participate in the assembly. When women are killed 
for political reasons, their lives have political value, regardless of the fact that they were 
disenfranchised and barred from voting or holding office. Rancière criticizes Arendt for 
excluding this core question of politics by already sorting out the question of private and 
public space beforehand (Rancière, 2004, pp. 303-304). However, Rancière also argues 
that the distinction between public and private reinforces existing hierarchies and leads 
to certain subjects being excluded from the public sphere. 
Political subjectivity, therefore, describes the disruption of existing power distributions. 
According to Panagia (2010, p. 95-96), Rancière’s dissent is a political action that also 
disrupts the dominant configuration between perception and meaning on an aesthetic 
level. These disruptive parts not only begin to exist on the political stage but are also 
perceived or re-perceived. Thus, subjectification into a political subject changes the 
conditions of perception for a “political community and its dissent”. 
Rancière demonstrates this practically by showing how women were able to demonstrate 
their lack of rights during the French Revolution. They did so by showing that the 
Declaration of Rights did not apply to them while simultaneously showing through their 
public actions that they had the same rights as men, even if the Constitution did not 
recognize them. In bringing oneself forward as a political subject, a dissent arises, a 
situation in which two opposing worlds coexist in one and the same world. A political 
subject is someone who is capable of creating such situations of dissensus. Therefore, for 
Rancière, the difference between a "man" and a "citizen" does not signify that rights are 
without meaning, but rather provides a way of developing political subjectivity (Rancière, 
2004, p. 304). 
However, one might object in surprise: Doesn't the Universal Declaration of Human 
Rights fulfil this purpose precisely? Doesn't it serve as evidence that individuals possess 
political agency regardless of their legal standing? Rancière might disagree with this: 
political agency, as well as freedom and equality, are not pre-political qualities that are 
 45 
naturally given. If this is claimed, then it deprives people who de facto lack agency of 
these qualities. However, there is still something paradoxical about human rights, namely 
that on the one hand, it serves as a reference point for those who subjectify themselves 
politically, and on the other hand, it serves as a prerequisite for the establishment of a 
liberal order that is not able to actually guarantee these values, thereby creating power 
hierarchies in a logical circular argument. 
Rancière opposes the traditional liberal idea that liberty, equality, and human rights are 
the very basis of democracy but shows that to make human rights meaningful are only 
brought up by the demos. Thus, he asks about the subject of these rights and concludes 
that the Rights of Man are the rights of the demos (Rancière, 2004, p. 305). To fully 
comprehend why this solution is the answer to Arendt’s circularity problem, one must 
remember how Rancière defines demos. Demos as argued before does not refer to the 
power of the poor or the unqualified to govern, but rather, it should encompass those who 
are excluded from the political community, the uncounted. “The Rights of Man are the 
rights of the demos, conceived as the generic name of the political subjects who enact—
in specific scenes of dissensus— the paradoxical qualification of this supplement” 
(Rancière, 2004, p. 305). Rancière accuses Arendt to deny the reality of struggles outside 
the frame of a national constitutional state. Human rights become only useful when 
dissensus can be brought to stage and when the Rights of Man are not tied to any specific 
individual, but rather to the political subjects who engage in dissensus to qualify these 
rights. Rancière does not use that term, but this is ultimately what could be called self-
determination or liberty. Self-determination is therefore not something that can be 
decreed by law, not even in the form of human rights, but is a process of differentiating 
the undifferentiated demos. 
Rancière strongly warns against painting over or even attempting to overcome the idea of 
exclusions in the revolutionary zeal for a supposed taming of the untameable Other. 
Freedom and equality happen in highlighting the discrepancy, in counting the uncounted 
because absolute evil would start “with the attempt to tame the Untameable, to deny the 
situation of the hostage, to dismiss our dependency on the power of the Inhuman, in order 
to build a world that we could master entirely” (Rancière, 2004, p. 308). Ultimately, 
Rancière warns, the Nazi regime aspired to the idea of absolute freedom by attempting to 
exterminate those who bear witness to their situation of being held hostage and represent 
 46 
the "law of Otherness" or the "law of an invisible and unnameable God" (Rancière, 2004, 
p. 308). 
Rancière seeks a new perspective on politics and ethics, asking how we can rethink 
politics in a way that avoids exceptionalism and instead embraces dissensus. While some 
see ethics as enabling a community by supporting political spaces and rights, Rancière 
criticizes ethics for blurring legal distinctions and scrambling political spaces for 
dissensus. In the endless conflict between good and evil, he argues, ethics establishes the 
state of exception, which is not the fulfilment of a political being but rather the 
consequence of the erasure of political space through consensual politics and 
humanitarian intervention (Rancière, 2004, pp. 308-309). 
Human rights are only meaningful when enacted by the political subject, through those 
who are not part of the system and can stage a dissensus. Ethics or "rights of the other" 
that impose humanitarian intervention by ruling the state of exception undermine the 
democratic potential of political subjectivation. However, such political subjectivation is 
also not possible without human rights and the term right to have rights capture’s 
Rancière’s idea of a political space. The demand for having rights thus describes the 
subjunctivization of those who have no part in politics. Rancière's right to have rights is 
not the right of victims, but the right of those who were unable to assert rights on their 
behalf. It is not the right to humanitarian interference and not the right to invasion. 
Rancière's right to have rights is the right to dissensus. It is a right to queer power 
relations. 
Findings and Discussion 
Liberal democracy assumes that every individual has innate human rights, is free and 
equal, and that the state legitimizes its power to protect the private lives of its citizens. 
Liberalism and human rights shape the self-understanding of modernity. However, the 
appearance of national minorities and stateless people in the 20th century expose the 
perplexities of human rights, namely that those who are excluded from the political 
community and are in need of human rights are unable to assert their inherent rights. With 
the advent of the Universal Declaration of Human Rights after the 2nd World War those 
problems as shown by Arendt seem to have been solved. All people possess human rights, 
regardless of their nationality or legal status just by being member of the human family. 
 47 
Yet the fundamental question raised by Arendt of how humanity should ensure the 
protection of human rights continues to be the subject of heated debate. In its practice, 
the answer in the 21st century is all too often: human rights are protected by the state, and 
when the state fails, by humanitarian intervention. Yet this line of reasoning is condemned 
as a "right to invade" in the eyes of its critics, such as Jacques Rancière (Rancière, 2004, 
p. 298), and in practice establishes a moral power imbalance between the West and its 
former colonies. Human rights thus enter a crisis of justification that threatens to 
massively undermine its unquestionable authority, which its creators had in mind. 
I have argued that the right to have rights critiques liberalism's assumptions from within 
and therefore adopts liberalism's criteria such as freedom and equality to measure it 
against its own standards. And I have shown how the Arendtian concept of the right to 
have rights not only produces a crisis of legitimacy for the liberal order, but also offers 
possibilities for a reinterpretation of human rights through thinkers such as Benhabib and 
Rancière. 
Hannah Arendt's project of critiquing human rights, however, is not about convicting 
human rights of their contradictions and undermining them, but about nation-state 
democracies and the concern that the global states community cannot effectively protect 
these human rights. Often described as anti-liberal, Arendt takes the liberal project of 
human rights very seriously. Birmingham describes Arendt's critique of democracy as 
follows: “Arendt had tremendous misgivings about modern democracy, not because she 
was anti-democratic per se but because she saw that democracy in its modern formulation 
has not broken with sovereignty and at the same time aligns itself with nationalism. This 
spells disaster for human rights” (Birmingham, 2006, p. 138). 
Arendt demonstrates that human rights are not an anthropological constant, but only 
become politically enforceable through agreements that recognize humans as political 
beings. Her own and others experience of being stateless makes it quite obvious for her 
that simply being member of the human family is not enough to enforce one's rights. And 
Arendt also believes that a democratic nation-state, which governs by majority vote, 
makes this promise unrealistically. Totalitarianism is especially known for its ability to 
mobilize the masses. These masses are no guarantee that they will not democratically 
decide to exclude a group of people from their community and deprive them of their legal 
status. 
 48 
Arendt emphasizes the importance of political action and the right to belong to a political 
community. She argues that human rights are not innate but arise through agreements 
between individuals. Arendt's notion of equality is based on the practice of political 
participation and the creation of a shared public-political space. Thereby she emphasizes 
the interrelatedness of equality and freedom. One can be free only among one's equals. 
Equality for Arendt is the right to belong to a political community and to be seen as a 
political subject. However, I could argue that for Arendt the right to have rights is not 
merely the extension of formal equality, but a critique of justice and political order. 
Arendt's ideas challenge the liberal conception of democracy by showing that freedom 
and equality are not the means or ends of democracy but that these values can only be 
truly protected if they overcome the means-ends thinking. Arendt's idea of isonomia 
overcomes this means-ends thinking and creates a state of political freedom in which 
there is no difference between rulers and ruled. 
In her theory, Arendt thus consciously creates a spatial order different from the liberal 
order. She displaces the bare and private life from the political. Humans appear only as a 
political being, in the moment of mutual recognition. In doing so, however, she commits 
a mistake, as Rancière points out. Rancière argues that Arendt's emphasis on banishing 
private, apolitical life from the realm of politics creates an ontological trap. By aiming 
for a pure politics that separates the individual from the state, Arendt inadvertently grants 
the state the power to control individuals. This distinction between the individual and the 
state allows the state to exercise sovereign power over both forms of lives: the natural and 
political human life. Rancière criticizes Arendt's argument for depoliticizing issues of 
power and oppression by placing them in a sphere of exceptionality that is no longer 
considered political. He suggests that her ontology of power leads to an epistemological 
impasse that limits the understanding and transformative potential of politics. This 
separation of the individual and the state, which is inherent in the idea of the international 
human rights system, thus denies true transformative processes. The decision about power 
and powerlessness has already been made and is relegated to a pre-political space. 
Benhabib is particularly concerned with the issue of equality, how the human rights 
system can be thought of as a participatory project in which everyone participates equally 
in shaping it, and people actually give themselves the laws that affect them. For Benhabib, 
the right to have rights is a discursive right based on universalist basic assumptions about 
communicative freedoms, which is antecedent to legal arrangements and thus gives 
 49 
people the possibility to participate. Rancière’s notion of the political consecrates the 
possibility of Benhabib's idea in that, for him, political theory, after all, always trails 
politics. It responds to what it finds in the world. In this sense, Benhabib's discourse ethics 
can only reflect what it already finds. People are not the authors of their rights here, but 
at most legitimize them afterwards. In this respect, it is questionable whether Benhabib is 
really concerned here with an emancipatory project or with a universalist justification that 
legitimizes the establishment of international human rights institutions. 
Benhabib's main concern, therefore, is to provide an ethical basis for international human 
rights institutions. Benhabib interprets Arendt's philosophy to mean that the problem of 
stateless people shows that state systems are unable to guarantee human rights for all 
people. Benhabib pursues the political project of separating the right to have rights from 
national citizenship and recognizing the universal personhood of all people. These 
institutions aim to grant human rights to those who do not possess them. Therefore, 
Benhabib's project needs a universal justification, which is not an end in itself. 
Benhabib is facing a problem with her project: how to reconcile all the requirements of 
human rights with each other. On the one hand, human rights possess authority and are 
only international applicable as they are seen as universal, but on the other hand that 
universal application of pre-political rights would also impose power and restrict the self-
determination of people. Therefore, Benhabib asks that human rights must be generated 
by those affected by them. However, this would mean that human rights are no longer 
universal. 
In her discursive theoretical approach to human rights, Benhabib tries to overcome this 
conflict line of universality human rights and respect of self-determination. She 
understands equality as an anthropological assumption of the general other, who is 
characterized by the same ability to take part of an ethical discourse of human rights. On 
the other hand, she considers the specific Other who remains different because he or she 
is unique and does not resemble others. With her theory, she attempts to answer the 
particular question of how we can all be equal when we are so different. 
What makes her approach problematic is that she makes essentialist anthropological 
assumptions that apply universally while denying this. She shifts the discourse of human 
rights, which should actually be conducted politically by also considering concrete 
historical circumstances, such as colonialism, into a discourse-ethical space, thereby 
 50 
obscuring the lines of inequality, as Rancière would accuse her of doing. In doing so, 
Benhabib, on the one hand, puts herself in danger of leaving the discourse of human rights 
empty of content in order to remain true to her paradigm of anti-essentialism or, on the 
other hand, makes pre-discursive assumptions that obscure hierarchies of power. 
Jacques Rancière critiques traditional notions of politics and equality. He challenges the 
notion that politics is driven by the pursuit of equality, arguing instead that politics 
disrupts and challenges existing power structures. Rancière focuses on the voices and 
participation of those normally excluded from politics, emphasizing the importance of the 
subaltern and uninvolved. He criticizes international and national institutions that aim to 
establish the right to have rights, as they obscure the gap between the individual and the 
sovereign. Rancière's concept of radical equality calls for collective action to challenge 
and redistribute political power. 
Benhabib's project of an international human rights institution and a discourse-ethical 
approach to human rights do not seem to be reconcilable with each other in their practical 
application, since this theoretical keeping open of the possibility of a universal Other and 
concrete Other, which can produce itself via communicative freedom and can inscribe 
itself in the discourse, collapses at the moment as soon as this discourse is positivised, 
inscribes itself in laws that no longer allow this ambiguity. This is why Benhabib 
ultimately falls back on the nation-state, which supposedly knows what its citizens want. 
On the one hand, this does not satisfy the previously postulated desire for self-
determination of groups across state borders. On the other hand, it confuses freedom in 
the Rancierian sense as the freedom to speak on behalf of others. A discursive negotiation 
cannot succeed if at the same time an attempt is made to cement the division that is 
inherent in politics, namely the division of oneself by the exclusion of the parts that do 
not participate. 
Rancière believes that the failure of equality and freedom in liberal democracy is due to 
the assumption that they are already established prerequisites of liberalism, without 
further effort to establish them. The function of an assumption of freedom and equality is 
rather to legitimate the sovereign power. Furthermore, he questions that when the concept 
of natural rights is necessary in a liberal order, then it is unclear who is capable of 
protecting these innate rights. 
 51 
Rancière considers this idea of total equality unrealistic and even warns against its 
realization in light of National Socialism. Justice, however, plays an important role in his 
political theory, but as a process and on the basis of a more differentiated understanding 
of equality, which tries to address the problem that a democratic will is far from being 
just, especially for those in the minority. He calls democratic decisions that are enforced 
in the name of the people as the police and the opposite of politics, which arises precisely 
from the visibility of dissent, at the moment when the disenfranchised claim their 
legitimate place in society. This is not bound to institutional processes. 
Benhabib's theory falls short when it comes to Max Weber's paradox of politics. 
According to her, power hierarchies lead to unequal rule and ultimately to the loss or 
violation of human rights. However, it attempts to enforce the claim of the weaker to 
these rights through power hierarchies. Rancière, on the other hand, offers a different 
perspective. He argues that politics should not be seen as a gift from the powerful to the 
weak. Rather, he criticizes attempts to blur inequalities through a discourse that 
emphasizes the absolute universality of human rights. Rancière seeks to place the voices 
of the subaltern at the centre of his understanding of politics, rather than merely including 
them in a majority discourse. He is concerned about the obscuring of inequalities by 
institutions and seeks to preserve inequality in politics. Rancière sees the problem of 
inequality as a constant challenge to power relations, where making the excluded visible 
disrupts and changes political power relations. For Rancière inequality becomes the 
centre and perpetuum mobile of politics. 
Arendt tries to capture the powerless situation of stateless individuals by arguing that they 
would be relegated to the private sphere, deprived of their connection to the world, 
lawless and marginalized. She distinguishes between public and political life but not in 
the sense of liberal theory. She does not see the task of the state to protect private life, but 
she sees being human is ultimately linked to be part of a community and to take part in a 
political space. Political life brings equality, power, authority, and freedom to the public 
sphere that has not existed before. 
Where Benhabib follows a rather liberal understanding of the dichotomy of private and 
public sphere, Rancière is challenging both Arendt’s and the liberal conception of it. 
Arendt’s distinction between private and public spheres, visibly runs counter to his 
disruptive notion of inequality. Rancière criticizes Arendt for depoliticizing mere life. 
She speaks of stateless people having no part in the political because the state does not 
 52 
even try to oppress them. Rancière sees a certain polemic in this since stateless people are 
indeed disenfranchised and thus oppressed. For him, human rights have a political 
moment here, namely, in that moment in which marginalized groups demand their rights, 
which they (do not) possess. By considering this exercise of power over stateless persons 
as a pre-political space, Arendt, in the sense of Rancière, misses the actual political 
moment, namely when these marginalized groups claim their place. 
With her reference to the stateless, Arendt wants to reawaken the political potential of the 
French Revolution. The attempt to establish human rights by referring to mere humanity 
does not work, as can be seen from the stateless. Arendt, on the other hand, wants to show 
that human rights are not based on an anthropological assumption, but emphasize the 
contractual character of human rights. Rancière shows that human rights cannot be an 
agreement among equals within a liberal self-understanding. It manifests not only 
Weber's paradox, a donation of the rich to the poor, but also sovereign power. Liberalism 
assumes that man is already equal and free, but then human rights become useless because 
they merely describe what is supposedly already there. If, on the other hand, human rights 
are seen as the demarcation line which divides the community from itself, it does not 
manifest the absolute sovereignty of a state but makes clear that one can only be free 
among one's equals. 
Human rights can only be politicized in Rancière’s sense if they are not regarded as pre-
political and their rights bearers are not reduced to their biological life but are perceived 
as political subjects. Only in this way can human rights have a disruptive effect. In 
Rancière’s understanding, changing power relations goes hand in hand with changing the 
perception of the subjects of rights. If human rights are either naturalized or seen as an 
agreement, this aesthetic experience of disrupted power remains hidden. 
Conclusion 
Liberal democracy and the concept of human rights are central to modernity and assume 
that every individual has inherent human rights, freedom, and equality. It is this innate 
freedom that the liberal state seeks to secure for its citizens. However, national minorities 
and stateless persons in the 20th century highlighted the contradictions and tautologies of 
human rights, as those excluded from the political community were unable to assert their 
rights. Arendt concluded that being thrown back on mere humanity did not mean 
protection of human rights. 
 53 
The post-World War II Universal Declaration of Human Rights aimed to address these 
problems by recognizing the rights of all people, regardless of their nationality or legal 
status. But the question of how to effectively protect human rights remains controversial. 
With the state and humanitarian intervention being the common answers, it is clear that 
human rights are to be obtained from the outside and through power. This describes 
Weber's paradox that it takes power to protect citizens from power. 
Hannah Arendt's critique of human rights does not aim to undermine them, but to show 
the limits of nation-state democracies in protecting them. Therefore, she emphasizes the 
importance of political action and of belonging to a political community for the realization 
of human rights. She seeks to overcome the state sovereignty of liberal democratic nation-
states and call for community action. Arendt fundamentally challenges liberalism's great 
dichotomy of public and private here. 
Arendt's distinction between public and private life is indeed significant in highlighting 
the precarity of the excluded, who are denied part of their humanity, namely their political 
being. However, Rancière criticizes Arendt for depoliticizing marginalized individuals 
and stresses the importance of recognizing their political agency. He argues that human 
rights can only be truly politicized if the bearers of rights are seen as political subjects 
and not reduced to their biological existence. In this way, the state sovereign is ultimately 
again staged as the protector of human rights and thus undermines Arendt's actual thrust. 
I have been able to show that the right to have rights simultaneously critiques liberal 
assumptions and offers the possibilities for reinterpretation of human rights by thinkers 
such as Benhabib and Rancière. Benhabib's efforts to solve Arendt's problem analysis 
focuses on the ethical basis for international human rights institutions and the 
participation of individuals in shaping human rights law. Benhabib's approach, however, 
faces the challenge of reconciling the universality of human rights with self-
determination. Her discourse-ethical considerations fail to do what liberalism also fails to 
do: By assuming communicative freedom as a precondition for discourse, it presupposes 
freedom and equality, but cannot establish them, as Rancière would criticize. 
Jacques Rancière critiques traditional notions of politics and equality. He argues that 
politics (in difference with police) breaks down existing power structures and focuses on 
the voices of the marginalized. In this, he clearly contradicts Benhabib and challenges the 
assumption that equality is already established in liberal democracy, instead emphasizing 
 54 
the need for continuous collective action to challenge and redistribute political power. 
Rancière's emphasis on visibility and disruption of inequalities contrasts with Benhabib's 
approach, which obscures power dynamics with her assumption that noticing subaltern 
voices in discourse is always possible. 
Arendt’s disagrees with the assumption that human rights can be founded solely on the 
basis of human nature and emphasizes the contractual nature of human rights. On the 
other hand, Rancière argues that human rights can never be an agreement among equals. 
If liberalism assumes that individuals are already equal and free, Rancière argues, then 
human rights become superfluous because they merely describe what is already taken for 
granted. However, if one considers human rights as the boundary that distinguishes the 
community from itself, it becomes apparent that true freedom can only be experienced 
among equals and is not dictated by the absolute sovereignty of a state. 
Arendt's distinction between public and private life is criticized by Rancière, who sees 
the exercise of power by marginalized groups as a political moment. To shift this moment 
of political subjectivation into the realm of the private depoliticizes human rights. 
Rancière shows how human rights are not innate or contractual, but disruptive at the 
moment when their rights holders can enact themselves as political subjects. 
Arendt's, Benhabib's and Rancière's discourses on the right to have rights illustrate the 
complexity and tensions within liberalism, which assumes the existence of human rights, 
freedom, and political equality, but cannot realise them. While Benhabib does not answer 
the questions raised by Arendt about a political space that can actually guarantee human 
rights, Benhabib's attempt at a discourse-ethical justification of human rights that assumes 
the universality of human rights shows that political participation goes beyond the 
discursive attribution of marginalised voices. Rancière's political theories cannot be 
institutionalised. This is by no means a weakness of his theory but its quintessence. 
Human rights are not something that the powerful grant the weak. The claim of the right 
to have rights marks a moment of political subjectification for a previously 
undifferentiated demos. At this point, justice can be distinguished from injustice and 
hierarchies of power can be broken. 
Rancière highlights that the National Socialists' atrocities demonstrate how the pursuit of 
predictability and absolute certainty undermines the principles of freedom and self-
determination. Rancière suggests that the responsibility of upholding freedom lies with a 
 55 
political community that embraces diversity and acknowledges the existence of otherness, 
rather than striving for homogeneity and absolutist ideals. Human rights can play an 
important role in this, not by being taken for granted, but as a way of finding the knot that 
separates the equal from the unequal and thus the separation of the political community 
from itself. 
  
 56 
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