The lex of the earth? Arendt’s critique of Roman law
| Published date | 01 October 2021 |
| Date | 01 October 2021 |
| DOI | 10.1177/1755088219898237 |
| Subject Matter | Articles |
https://doi.org/10.1177/1755088219898237
Journal of International Political Theory
2021, Vol. 17(3) 394 –411
© The Author(s) 2020
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DOI: 10.1177/1755088219898237
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The lex of the earth? Arendt’s
critique of Roman law
Shinkyu Lee
Lutheran School of Theology at Chicago, USA
Abstract
How political communities should be constituted is at the center of Hannah Arendt’s
engagement with two ancient sources of law: the Greek nomos and the Roman lex.
Recent scholarship suggests that Arendt treats nomos as imperative and exclusive while
lex has a relationship-establishing dimension and that for an inclusive form of polity,
she favors lex over nomos. This article argues, however, that Arendt’s appreciation
occurs within a general context of more reservations about Rome than Roman-centric
interpretations admit. Her writings show that lex could not accommodate the agonistic
spirit and Homeric impartiality that helped the Greeks achieve human greatness and
surpassing excellence. Arendt also points out that Roman peace alliances occurred
at the expense of disclosive competition among equals and assumed some form of
domination. Indeed, although Arendt appreciates lex’s relationship-establishing aspect,
she is undoubtedly critical of anti-political practices accompanying lex, manifested when
the Romans required enemies’ submission to terms of peace the Romans themselves
set. In the end, Arendt’s statements regarding nomos and lex highlight the fundamental
challenge in free politics: balancing the internal demand of agonistic action with the
external need to expand lasting ties.
Keywords
Agonistic action, Arendt, democratic inclusion, empire, freedom, political association
Hannah Arendt formulates an idea of politics that exists for its own sake. To articulate a
unique aspect of politics apart from other dimensions of human life, Arendt (1998) turns
to the ancient Greeks’ experience with politics and action. Her principal task is to enable
us to see political phenomena or ideas that we have taken for granted differently.
Corresponding author:
Shinkyu Lee, Department of Political Science, DePaul University, 990 W. Fullerton Avenue, Suite 2200,
Chicago, IL 60614-3586, USA.
Email: slee241@depaul.edu
898237IPT0010.1177/1755088219898237Journal of International Political TheoryLee
research-article2020
Article
Lee 395
Primarily, Arendt wants to show a form of free politics that is far from the familiar image
of politics oriented toward sheer survival or rulership.
Despite this laudable task, however, Arendt’s views have encountered severe criti-
cism. The common charge is that her ideas suffer from some kind of Graecomania and
generally ignore anti-democratic aspects of ancient Greeks’ lives, such as their brutal
dealings with barbarians and exclusion of women and slaves from politics (Jay, 1986;
Parekh, 1984; Wolin, 1994). Recent works have effectively shown that such a charge is
mostly incorrect and misses Arendt’s broad point. Notably, Dana Villa (2007) argues that
the real point of Arendt’s Greek engagement is methodological, not strictly prescriptive.
Villa (2007: 985) points out that, like a diver descending to the sea’s bottom to find crys-
tallized pearls, Arendt turns to polis experiences at the bottom of our political existence
“to bring forth, in ‘crystallized’ form, the phenomenological bases of politics as prac-
ticed by diverse equals in a public space.”
Certainly, Arendt’s appropriating the polis experiences as a heuristic method for her
articulation of free politics does not mean that she eventually abandons ancient Greek
politics. Villa’s interpretation only prompts us to address specific inquiries regarding
which aspects of Greek politics Arendt finds inspirational or problematic and how these
elements of polis experiences affect her political ideas. To contribute to the renewed
scholarly interest in Arendt’s reliance on ancient political thinking and experiences, this
article investigates her thoughts on the scope of spatial/legal limits for free politics.
Specifically, it raises questions about what form of political association can match
Arendt’s action-centric politics and how she incorporates the merits and dangers of
Greek polis experiences into her vision of free politics.
For this analysis, I engage with Arendt’s appropriation of two ancient sources of law:
Greek nomos and Roman lex. Nomos closely relates to the foundation of the polis, “the
Greek solution” that Arendt (1998: 196) discusses in The Human Condition following
the section on the frailty of human affairs. She observes that the polis helped Greeks
multiply their chances of distinguishing themselves in words and deeds, making organ-
ized remembrance possible. Arendt (1998: 64) also stresses that establishing a city-state
required nomos, a “wall-like law [considered] sacred.” The ancient Greeks considered
such a legal demarcation to be the precondition for action rather than “the content of
politics” (1998: 195). However, the Roman understanding of law, lex, was different. For
the Romans, Arendt (1998: 195) notes that legislation and foundation were also part of
politics, not pre-political matters as the Greeks viewed them.
In analyzing Arendt’s reflections on nomos and lex, the present study has two goals.
One is polemical. Contrasting Arendt’s views on nomos and lex has become increasingly
popular (Ashcroft, 2018: 132–138; Axtmann, 2006: 112–117; Bates, 2010: 118; Volk,
2010: 774–778; cf. Breen, 2012: 24). Scholars note that whereas nomos is imperative and
exclusive, lex has a relationship-establishing dimension. Identifying Arendt’s approving
references to the Roman conception of law in her unpublished work, several Arendt com-
mentators have countered the notion that she engages in Graecomania (e.g. Taminiaux,
2000: 173–177). In this framework, Arendt favors the Roman experience over the Greek
and considers the former a remedy for the latter, as she thinks that lex’s functions com-
plete her ideas on nomos (Jurkevics, 2017: 357; Markell, 2011: 35–36). I argue, however,
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