Impartial third and disinterested judgment: Kojève and Arendt’s cosmopolitan phenomenologies of human rights as a response to Schmitt

Introduction

Considerable scholarly attention has been devoted to Hannah Arendt’s implicit engagement with Carl Schmitt (Jurkevics, 2017; Kalyvas, 2004, 2008; Keedus, 2011; Scheuerman, 1997; Volk, 2013) and Alexandre Kojève’s intellectual dialogue with the controversial theorist of sovereignty (Burns, 2014; Geroulanos, 2011; Howse, 2006; Müller, 2003; Rech and Grzybowski, 2017). Yet, no comparative study exists between Arendt and Kojève. This oversight demands rectification, not least because both thinkers articulate cosmopolitan theories of rights and international politics based on a shared foundation in theoretical traditions such as German idealism, existential phenomenology, and historical hermeneutics. In line with the modern critical tradition, their cosmopolitan theories address the problem of human rights against the backdrop of the contradiction between universal rights and national sovereignty, as well as its relationship with the contradiction between the state and civil society. These theories thereby anticipate and reflect key concepts in critical International Relations (IR) theory, such as the “state and civil society complex,” imperialism, and colonialism (Cox, 1981; Bieler et al., 2016; Callinicos, 2009). However, while Kojève’s theory of rights addresses Schmitt solely on the grounds of material power and economy, Arendt also provides an intersubjective phenomenological basis for cosmopolitan rights. This position not only reflects her “reluctant modernism” ¹ but also foreshadows the constructivist school in IR that views intersubjective norms as a primary unit of analysis (Wendt, 1992). To this end, Burns (2014) observes that Kojève embraces a “strong cosmopolitan” interpretation of Hegel’s thought for global politics, while Bohman (2012) argues that Arendt’s theoretical project aligns with a “non-statist cosmopolitanism.”

This article examines the foundations of human rights proposed by Arendt and Kojève as complementary responses to Schmitt’s theory of sovereignty. It focuses on Kojève and Arendt’s cosmopolitan efforts to overcome Schmitt’s political sovereignty from a phenomenological perspective. Specifically, it examines Kojève’s notion of the “disinterested and impartial third” and Arendt’s articulation of the “common world.” While Arendt’s phenomenological common world upholds the idea of a non-sovereign public realm as a normative source of human rights, the article shows that Kojève’s theory of impartial third addresses the institutional and economic factors necessary for their realization. The article further argues that Arendt’s political recasting of Kant’s theory of intersubjective judgment corrects the solipsism of Kojève’s disinterested third and serves as a foundation for the cosmopolitan perspective on human rights in both a normative and historical sense. Finally, it concludes that the systematic combination of Kojève’s phenomenology of the impartial third and Arendt’s theory of disinterested judgment provides a strong response to Schmitt’s theory of sovereignty by conjoining legal institutions, economic redistribution, and intersubjective normativity as cosmopolitan foundations of human rights.

The problem of sovereignty: Schmitt’s political theology, the French revolution, and universal rights

The political forces unleashed by the Reformation played a central role in shaping the modern concept of sovereignty. The Reformation resulted in the fragmentation of the Christian unified ethos and the unleashing of Protestant individualism’s productive energies. It also brought to the forefront theological-political issues by merging the two dimensions of civitas Dei and civitas terrena (religion and politics) without the Church as mediator (Cerella, 2012: 980). While downplaying the relationship between Protestant individualism and capitalism identified by his teacher Weber (2001), Schmitt sought to unite religion and politics under the sovereign entity, making the exceptional decision a founding principle of the modern state. Schmitt (2005: 36) argues that the exception in jurisprudence is analogous to the miracle in theology, reflecting the theological concept of creation ex nihilo. Schmitt (2007) further portrays the sovereign as the entity that decides on the ontological “political” distinction between friends and enemies in the face of the real possibility of war between nation-states. These works suggest that the nation-state and its legal system are based on the exceptional sovereign decision in the face of existential danger rather than on a normative social contract or legal institutions. As the modern event par excellence, the French Revolution can be interpreted in two ways: either as fundamentally challenging the logic of sovereignty by providing a model for a world order based on universal rights, according to Kojève, or as solidifying the sovereign nation-state form through tribal nationalism, as argued by Arendt in some of her writings.

In his response to Schmitt’s existential political realism, Kojève combines Heidegger’s existential-phenomenological analysis of finitude along with an interpretation of Hegel’s account of intersubjectivity and philosophy of history, with a central focus on the event of the French Revolution. ² Kojève recasts the “Lordship and Bondage” section of Hegel’s Phenomenology of Spirit as an existential “story of origin” ³ of two consciousnesses. Awakened by the desire for the other’s recognition, the two consciousnesses initially engage in a risk of a mortal struggle for the “pure prestige” of recognition, but subsequently come to embody two asymmetrical existential attitudes. The dependent consciousness, or the slave, voluntarily relinquishes the struggle out of fear of death, while the independent consciousness, or the master, guarantees the dependent consciousness’s security in exchange for its labor (Kojève, 1980: 5–24, 53–8). This dialectical schema drives historical progress, wherein the independent consciousness finds itself in an “existential impasse” being recognized by the other, yet refusing to reciprocate mutual recognition. As the dependent consciousness’s education through transformative work eventually enables it to overcome the fear of death and of the other, the independent consciousness becomes dependent on the other’s work and effectively ceases to be a sovereign. ⁴ This transformation, traced by Kojève in the attitudes of stoicism, skepticism, and Christian “unhappy consciousness,” results in the dependent consciousness actualizing its repressed need for recognition, as it becomes a citizen of the “universal and homogeneous state.”

Becoming a citizen is linked to the philosophical significance of the French Revolution and the legal principles of the post-revolutionary state. During the French Revolution, ⁵ the dependent consciousness introduces death into its existence, as exemplified in the revolutionary terror, and becomes a self-conscious citizen and a “governor” of the post-revolutionary state (Kojève, 2000: 266). This “end of history,” as Howse explains, means that “violent struggle is no longer necessary to establish any decisive principle of the ultimate and final social order” (Frost and Howse, 2000: 6). This does not mean that history has ended in the sense of being finished (finis); rather, it suggests that the French Revolution inaugurated a potential purposeful end (telos). ⁶ In the Outline of a Phenomenology of Right, Kojève articulates the legal principles of this social order by delineating a juridical dialectic between the pre-Christian “aristocratic” paradigm of legal equality of status and the Christian “bourgeois” concept of justice as an equivalence between individual rights and duties (Kojève, 2000: 233–276; Frost and Howse, 2000: 21–24). The synthesized socialist principle of “equity” reconciles the aristocratic and bourgeois principles. This new principle belongs to a potentially final post-revolutionary order that can encompass all of humanity by overcoming “specific differences” such as class, “race,” and gender ⁷ (Kojève, 1980: 237).

Kojève posits this internationalist and socialist right as something yet to fully materialize. The dialectical development that constitutes it remains incomplete, and the actuality of the right is still dominated by bourgeois right, which stems from the dependent consciousness’s existential fear of death and its consensual exchange of labor for the guarantee of security (pp. 252–264). Kojève recognized that the bourgeois principle erodes the aristocratic privilege of masters by creating a bourgeois system of right that is predicated on a logic of contractual equivalence between the effort of work, economic exchange, and obligations. This dominant system signifies a transition from the “rule of men” to the “rule of law,” even if the latter is dominated by bourgeois class interests resulting in, as Arendt also observed, imperialist and colonial politics (Arendt, 1973; Kojève, 2001).

Schmitt and Kojève both offer conflictual theories, but, as Geroulanos (2011: 537–538) explicates, only Kojève’s approach seeks to neutralize conflict by recasting Schmitt’s non-dialectical friend/enemy division through a dialectical master/slave schema. Schmitt’s theory of political sovereignty can be seen as seeking to resuscitate the “rule of men” by asserting that the law fundamentally depends on a sovereign personalistic entity confronting other sovereign entities—much like aristocratic masters facing other masters. Contrarily, Kojève argues that the aristocratic principle cannot be preserved at the level of a nation-state. Instead, it can be “sublated” at the individual level. In articulating principles of right, Kojève proposes that the bourgeois equivalence between duties and obligations should include the aristocratic consideration of individual status and condition (pp. 269, 449). Here, Kojève proposes that the aristocratic equality of condition stems from individual “specific differences” as opposed to national-state affiliations. This aristocratic consideration intends to attenuate the class discrepancies in the bourgeois “rule of law” through the completion of the juridical dialectic in the socialist “right of equity.”

The sublation of the master/slave dichotomy occurs not only within the socialist principle of right but also within the world’s “nomos”—law or order. Formally, Kojève responds to Schmitt’s political sovereignty by characterizing the phenomenological essence of right as being based on the intervention of an impartial, disinterested third party into the interaction of two subjects of right, including states as “collective moral persons” (Kojève, 2000: 38–39, 285). He then proceeds, once again, from the individual level by pointing out the constant possibility of citizens escaping national jurisdictions (Kojève, 2000: 123, 315, 325). This evasion of enforcement poses a foundational challenge to the national concept of justice (Frost, 1999: 612). In response, the nation-state either pursues autarchy—an approach Kojève considers unfeasible in the modern world—or broadens its domestic jurisdiction through cooperation with other nation-states (Kojève, 2000: 326). This latter process results in the nation-state exhausting its political potential, transitioning its authority to the international “third” as the sole juridical power. The exhaustion of the properly political potential is also evident in the development of modern bourgeois penal law, which, unlike the aristocratic retaliatory response to political violence with violence (lex talionis), establishes an equivalent penalty corresponding to the intent and will of legal subjects (pp. 351, 369–373). The final juridical elimination of war depends on the juridical federation that harmonizes domestic penal and, as we shall see in a moment, economic laws of different states. This federation becomes a genuinely impartial “third” that, by definition, rejects war (2000: 317, 327).

One could argue that Kojève and Schmitt share more common ground, converging on a midpoint between the nationalistic concept of the political and the “universal and homogenous state.” For example, Rech and Grzybowski (2017) argue that Schmitt and Kojève can be reconciled insofar as both of them elaborate theories of large political spaces, such as Schmitt’s Großraum and Kojève’s regional “Empires” (Kojève, 2004; Schmitt, 2006). Despite this seeming convergence, Kojève’s project is clearly universalistic (Geroulanos, 2011: 539; Müller, 2003: 90–103), albeit not of the liberal kind of universalism criticized by Schmitt in Nomos of the Earth (2006) for being a smokescreen for the Anglo-American global hegemony. Because Kojève’s theory of world politics reflects his immanent critique of bourgeois right, as Howse (2006) points out, it aims to integrate the socialist principles into the building of global justice and prosperity through economic and legal integration and the construction of a just relationship in trade and finance with the developing world (p. 93).

From Arendt’s perspective, Kojève’s theory of universal rights can be seen a reconciliation of the rational and historical foundations of rights, a recasting of the modern rationalistic idea of natural rights. The only qualification Kojève makes is that natural rights are “not a beginning but a result. . .a becoming in time and history” (Kojève, 2000: 92). The French Revolution thus serves as a paradigmatic historical event that underlies this conceptualization of socialist right and the disinterested and impartial third as an international prerequisite for their realization. Arendt (1973), however, argues that this type of thinking is atavistic because human rights can no longer be grounded in history or nature: “[h]istory and nature have become equally alien to us, namely, in the sense that the essence of man can no longer be comprehended in terms of either category” (p. 298). Arendt seeks to demonstrate that the “Rights of Man” promulgated by the French Revolution are not only an abstraction but also a dangerous one that effectively reinforces the nationalistic undertones of Schmitt’s theory of sovereignty.

Arendt traces the origin of both national sovereignty and the “Rights of Man” to the same historical root: the French Revolution. Similar to Marx (1992), she criticizes the “Rights of Man” as an abstraction. Arendt argues that this abstraction came to conceal not only the interests of the bourgeoisie but, first and foremost, the romantic national aspirations of thinkers like Schmitt. According to her, the problem is that the revolution of 1789 “combined the declaration of the ‘Rights of Man’ with the demand for national sovereignty” and proclaimed “man"–neither God nor convention–as the source of law (Arendt, 1973: 230, 290). Elevated to the position of the lawgiver in the theory of Rousseau and practice of Robespierre, "man" in the plural was posited as the "general will" binding a multitude of particular wills into one sovereign entity (Arendt, 1990: 75, 77). Once the "Rights of Man" were understood as emanating from the romantic idea of “common origins,” national emancipation was given supremacy over the legal and rational institutions of "Rights of the Citizen" (Arendt, 1973: 230, 275, 291). The "Rights of Man” initially referred to individual rights but later came to be understood as the rights of sovereign nations, leading to the conclusion that “mankind” consists of national souls: “[t]he whole question of human rights. . .was quickly and inextricably blended with the question of national emancipation” (p. 291).

Having traced the origins of national sovereignty and the “Rights of Man” to the French Revolution, Arendt then goes on to examine the historical repercussion of the contradiction between the promise of universal human rights and the reality of national sovereignty in the early 20th century. She demonstrates that the plight of refugees and stateless people amid the First and Second World Wars attests to the fact that the loss of citizenship rights resulted in the loss of supposedly inalienable human rights (pp. 292–293). This effective reliance on national citizenship for human rights became particularly problematic when the logic of national sovereignty was taken to the extreme, and totalitarian states like Nazi Germany established legal distinctions between full citizens and other nationals, making national minorities an easy target of persecution (pp. 273, 288, 296). Deprived of their national legal status, minorities had to rely solely on their human rights. But with the League of Nations having no effective legal powers to guarantee human rights for these displaced populations, “the only practical substitute for a nonexistent homeland was an internment camp” (p. 284).

This account of the “Rights of Man” as a powerless abstraction and the appropriation of this notion to justify national sovereignty does not mean that Arendt rejects the idea of human rights altogether. In fact, Arendt’s notions of “the right to have rights” and “the common world” have been received in the literature as an alternative to the coupling of “Rights of Man” and national sovereignty. According to Isaac (1996), her theory of rights–especially in its emphasis on deliberative political action, is “intended to secure an elemental human dignity that is systematically jeopardized by the imperatives of national sovereignty” (p. 61). Parekh (2008) has shown that Arendt grounds the “right to have rights” in the phenomenology of the “common world” and “political commitment to plurality” (p. 68), while the principle of natality, as Birmingham (2006) demonstrated, “provides the ontological foundation for human rights” (p. 3). The notion of natality underscores two crucial characteristics of human political existence: firstly, we enter the world as plural individuals, and secondly, each of us possesses the potential to politically create anew. This interplay between two existential fundamentals is mediated via speech, a premise anchored in Aristotle’s portrayal of humans as “speaking animals” (Arendt, 1998: 7, 177–178). Consequently, it follows that the realm of the “political” is structured not by the struggle to death, but rather by birth, which inaugurates the impetus to act politically.

This phenomenological constellation has been argued to offer a response to Heidegger’s understanding of finitude (Benhabib, 2003; Marder, 2014). It can also be argued that this response applies to Kojève’s recasting of Heidegger’s philosophy of finitude through the Hegelian master/slave intersubjectivity, at least to the extent that Arendt is skeptical that “mastery” as “domination of one’s self and rule over others” can ever be overcome unless it is radically reformulated in terms of the category of natality (1973: 244). Sovereignty construed as mastery, according to Arendt, conflicts with political freedom anchored in human plurality. Such thinking emerges from the philosophy of “will,” finding its political manifestation in the French Revolution, of which Hegelian philosophy is the “ideological” derivative (1990: 51). While Arendt would be skeptical of the optimism inherent in Kojève’s “sublation" of mastery, her primary target is Schmitt, who can be seen as a significant representative of the "metaphysical" tradition that defines "the political" in terms of mortality and "tribal nationalism.” Although Arendt does not mention Schmitt by name, her criticism of sovereignty has been interpreted as aimed at the theorist of sovereignty (Kalyvas, 2008; Keedus, 2011; Scheuerman, 1997; Volk, 2013). As Kalyvas (2008) has emphasized, Arendt’s pluralistic and multi-perspectival definition of the public realm directly opposes Schmitt’s glorification of a “popular sovereign will” (p. 192).

In particular, Arendt’s concept of natality starkly contrasts with Schmitt’s (2007) proposition that the existential prospect of death delineates political groupings of states (pp. 35, 38–39). For Arendt, “natality, and not mortality, may be the central category of political thought, as distinguished from metaphysical thought” (1998: 9). The unified sovereign will of the nation epitomizes precisely what is metaphysical about this kind of conceptualization of the “political,” for it envisions human plurality as reducible to an indivisible national “general will.” Schmitt’s line of thought would also correspond with the “prejudices” of the French revolutionaries, like Saint-Just, who held that only foreign affairs are genuinely political (Arendt, 1990: 77). In contrast, based on the notion of natality, Arendt articulates two principles of “non-sovereignty”: the power to forgive and the power to promise. On the one hand, the power to forgive arises from our respect for the distinctness of others and allows us to escape the irreparable consequences of the past and the never-ending cycle of revenge (1973: 237, 241, 243). On the other, the power of promise enables us to grapple with the uncertain future, characterized by the unreliability of others’ commitments and the unforeseeable outcomes of our voluntary actions (p. 244). These interlinked non-sovereign powers of forgiveness and promise coalesce into the power to act “in concert” with the plural and common world (pp. 244–245). The common world is defined in terms of the “public realm,” which relies “on the simultaneous presence of innumerable perspectives and aspects. . . and for which no common measurement or denominator can ever be devised” (Arendt, 1998: 57). From this perspective, rights and political law hinge not on a Schmittian sovereign entity, but rather on a discursive “non-sovereign” common world. However, as I will subsequently demonstrate, Arendt’s notion of a common world falls short of adequately addressing the institutional and economic prerequisites for realizing human rights.

Impartial third: International law and international political economy

Arendt acknowledges that we currently inhabit “One World,” where universal humanity is no longer just a philosophical ideal but a global reality that cannot be ignored (Arendt, 1973: 297–298). Despite the pressing need for universal human rights, as evidenced by the atrocities of concentration camps and the resurgence of tribal nationalism, Arendt expresses skepticism about the One World reality. She believes that the right to belong to the common world, which she describes as “the right to have rights,” should be secured by humanity itself, but acknowledges that it remains uncertain whether this is possible. Given this context, the question then arises: how can we realize the right to have rights in One World? Benhabib argues that Arendt’s understanding of universal rights is based on a “phenomenological essentialism” that is skeptical of institutions (Benhabib, 2003: 55–58, 124–126). Similarly, Parekh (2008: 39), Birmingham (2006), Burns (2013), and Wellmer (2000: 223) highlight the non-legal nature of the right to have rights. Meanwhile, Tsao (2004) and Burns (2013) show Arendt’s connection to Hegel’s theory of the state and citizenship, and Rose (1992) emphasizes that Arendt relied on Luxemburg’s analysis of the international political economy of imperialism. These conflicting aspects of Arendt’s work can be attributed to the divorce between her phenomenological theory of the common world and her perspective on legal institutions and political economy.

Arendt’s phenomenological exposition of the non-sovereign power of natality has been criticized for stripping the common world of historical specificity and institutional grounding. According to Rose (1992), Arendt’s notion of natality hinges on St. Augustine’s theological distinction between two origins of man: “first birth, the sheer fact” and second birth, “with words and deeds. . .into the human world” (p. 231). However, in the first beginning, the existential “fact of birth” is conflated with “natural” givenness devoid of social differentiation and historical specificity. As a result, miraculous birth ends up being identical to the condition of stateless people isolated from the common world, a condition that Arendt herself deplores. The second discursive “world-making” aspect of natality is articulated as a neo-Augustinian ecclesial sociality of saints “without force or violence, but with perfect property or place” and as “the quintessential statement of the Roman public realm” (pp. 228–232). However, the public realm is detached from the historical conditions of the Roman Republic, such as Roman legal status and institutions. As a result, Arendt’s principles of non-sovereignty that are supposed to found the political common world can only found the "City of God” in the form of a discursive community. Similarly, Habermas (1998) observes that the communicative power of Arendt’s public realm "runs dry" if detached from the administrative power of the modern constitutional state (pp. 147–150). Since Arendt rejects the risk of violence as the lowest common denominator of political action (Rose, 1992: 152), she fails to acknowledge the historical, institutional, and legal foundations of the public realm, both in the Roman era and the "Weberian” institutions of legitimate violence in modernity. In the context of human rights, one can only imagine an international public realm and no international institutions or economic relations.

In her less phenomenological but no less political writings, Arendt nonetheless shows sympathy toward international institutions. To this end, in cataloging Arendt’s endorsement of regional and federative international institutions, Birmingham (2006) concludes: “[t]he institution of this fundamental right [to have rights] depends upon the collective limited sovereignty of states, regional federations with open borders, and international institutions, both legal and economic” (p. 142). Arendt considers international human rights agreements as necessary, but she does not articulate this necessity in terms of her political phenomenology. While Jurkevics (2017) has pointed out that Arendt’s support of peripheral empowerment and “comity among nations” can be seen as a response to Schmitt’s “imperialist” geopolitics (p. 360), the discrepancy between the common world as the foundation of the right to have rights and Arendt’s support of international institutions makes her position vulnerable to Schmittian criticism. If Arendt’s common world is understood as only a moral category, and not as a concrete juridical order, it appears as an abstract position of moral pacifism. Following Schmitt’s critique of American hegemony, this moral pacifism may be viewed with suspicion, as it may conceal the institutional and economic interests of the states that claim to promote comity and discursive democracy.

Arendt’s endorsement of international federative structures suggests that more needs to be done phenomenologically to counter Schmitt’s political sovereignty. One way to address this discrepancy in Arendt is to turn to Kojève’s Outline of a Phenomenology of Right, which grounds universal rights phenomenologically on the intervention of a disinterested and impartial third and institutionally on an international federative juridical union. To recall, according to Kojève’s central thesis, the juridical phenomenon is constituted by the intervention of a disinterested and impartial third in the interaction between two subjects of right (Kojève, 2000: 38–39). The third (C) has to be impartial and treat the participants of the “juridical situation”–A and B–as interchangeable; the third also has to be disinterested in the sense that it has to act only out of a sui generis “juridical interest” (pp. 79–80). The intervention of the phenomenological third generates the key element of the juridical circumstance, “to have the Right to. . .” (pp. 36–38, translation altered), which resonates with Arendt’s notion of the right to have rights. This is especially important considering that the defining aspect of Arendt’s the right to have rights is belonging to a political community or some sort of a third. ⁸ However, the main difference between Kojève’s and Arendt’s responses to Schmitt resides in the institutional character of Kojève’s phenomenological third.

Kojève’s engagement with Schmitt’s theory of political sovereignty hinges on the issue of the third party’s impartiality. Kojève acknowledges that, given the reality of multiple states, the third's intervention is effective only within the framework of particular juridical doctrines in sovereign states (2000: 40, 85, 91). However, if the third is circumscribed to a particular state, then it cannot be an authentically impartial third. The internal economic class distinction and the external political distinction between friends and enemies make the third partial. The external political distinction is explicitly borrowed from Schmitt’s theory of the political: the “friend” is the “brother in arms,” and the “enemy” is the military enemy, with the properly political interactions being actualized in the form of war (pp. 134, 137, 316). The problem of external partiality for the phenomenon of right is that there can be no juridical situation between friends and enemies. Even if an impartial intervention is possible between political friends, Kojève suggests that the notion of political friendship is unstable. Because interstate political relations between sovereign states presuppose war, and “war is. . . an essentially a-juridical phenomenon,” inter-state relations cannot give rise to an impartial juridical third in the form of “public international right” and the federative union that would support it (pp. 317–319, 325–327). This means that states cannot simply coerce other states to recognize a juridical third, whether that third is a group of states or an individual state. ⁹

Having ruled out the possibility that an individual sovereign state can become a third, Kojève asserts that the concept of right must permeate the political sphere from the domestic economic realm, where the concept of right is “relatively actualized.” Sovereign states, he posits, are familiar with the idea of rights through their internal organization, and they could extend this understanding to interactions among states (pp. 314–321). At this juncture, Kojève merges the phenomenological schema of the juridical third with his broader Hegelian philosophy, drawing upon his interpretation of the French Revolution as a blueprint for the universal and homogenous state that eliminates all political distinctions and inaugurates socialist justice based on equity. Essentially, Kojève argues that socialist logic must permeate external political relations. Under the condition of ontological homogeneity, ¹⁰ domestic socialist right transitions from potentiality to actuality, and a plurality of domestic rights will undergo “internationalization.” Upon the attainment of normative legal synthesis, international rights will also be actualized as a juridical amalgamation of public and private law, thereby eliminating the political friend/enemy dichotomy (pp. 121–126, 161–169, 315–316). Although the structure of international rights leans toward socialism, the content cannot be prefigured. The content will be contingent upon interactions between national jurisdictions, where different norms, through dialectical conflict, will give rise to an inter-national synthesis underpinned by the foundational socialist norm. As Frost and Howse (2000) contend, ¹¹ this ultimate socialist order will result in “a federation in which states are no longer sovereign” (p. 12).

As the international juridical unification of domestic rights progresses, the realm of the economy and the inner “political” distinction becomes more prevalent. The problem here is that the internal political economic distinction, which is burdened by antagonism as the “exclusive juridical group” can effectively reduce law to class interest, manifest itself on an international level (Kojève, 2000: 88, 90, 134–135). Kojève is sanguine that the socialist principle of equity will establish impartiality in the third by resolving the “internal” political grouping between the governors and the governed without impeding the logic of sovereignty. However, Kojève does not address the possibility that the logic through which capitalist right transitions to socialist right may proceed diachronically from the logic by which “state” sovereignty transitions into international socialist “the rule of law.” For example, states that have relinquished their warlike assertion of sovereignty to the federative union may still exert economic influence on international public law, thereby undermining the impartiality of the third. The issue that seems presupposed but not addressed is that even if the international rule of law is established, international economic relations may retain contradictions of what is known in IR theory as “the state and civil society complex” (Cox, 1981). ¹²

Although the Outline of a Phenomenology of Right does not address the potential for economic relations to undermine the impartiality of the third in international law, Kojève tackles the issue in his later engagement with Schmitt’s theory of geopolitics. In Nomos of the Earth, Schmitt (2006) argues that the phenomenon of law, as nomos, originates in the original appropriation of land. The other two meanings of nomos–production, and distribution, are subservient to the principle of appropriation, which refers to the sovereign act of “taking land” (pp. 326–334). In his letter to Kojève ((2001): 95–99), Kojève responds by arguing that modern law has ceased to be about the appropriation of land since the French Revolution. Modern law depends on production, and what is contested is the principle of redistribution: capitalist or socialist. Kojève asserts that “economically, there is no longer any ‘ocean’, but only ‘inland water’,” suggesting that we now live in what Arendt calls One World.

Kojève presents an explicit socialist analysis of international political economy in his lecture “Colonialism from a European Perspective.” He argues that in the contemporary world, the law is “socio-political and economic,” and not that of “land appropriation.” War and conquest inherent to geopolitical colonialism is not a world problem. Rather, colonialism should be understood in economic terms: “economic colonialism is a world problem and a mortal danger” (Kojève, 2001: 122–123). Any developed country that becomes richer at the expense of developing countries is effectively engaging in colonialism. To address this problem, Kojève suggests understanding nomos in terms of its fourth hermeneutic root: “giving” (pp. 122–124). This concept of “giving colonialism” can be seen as a response to Schmitt’s criticism of socialist politics as reliant on appropriation, and presents socialist redistribution as the new law of the earth.

What are the implications of the law of giving for Kojève’s international theory of rights? According to Geroulanos (2011), Kojève implicitly adopts the gift-centered theory of sovereignty along the lines of Bataille and Mauss’s theory of the gift to justify “the use of Marshall Plan-style economic gifts to the developing world” (p. 536). Kojève’s notion of giving colonialism is said to dislodge Schmitt’s political sovereignty with “ontological and ethical” sovereignty “that would foreground and preoccupy itself with a worldwide equality that would be economic as well as legal” (p. 559). However, this interpretation of gift-giving sovereignty arguably does not align with Kojève’s Outline of a Phenomenology of Right. The apparent problem with the resolution of economic contradictions through nomos as gift-giving is the evacuation of economic justice in favor of charity. More importantly, Kojève (2000) argues that the gift is not a properly juridical phenomenon that would “give rise to the intervention of the Third” (p. 459). This is because the “charitable” gift is essentially an aristocratic phenomenon. ¹³ The reciprocity of gift exchange serves to establish or reestablish equality between masters, but it does not directly relate to the principle of equivalence between rights and duties, thus not attending to all constitutive principles of the socialist right of equity. Instead, to account for “economic colonialism,” one need to see how the international political economy of colonialism precludes the socialist principle of right of being realized. In doing exactly this, Kojève examines how developed countries violate the international socialist principle by extracting “surplus-value. . .not inside but outside the country” (2001: 119).

The dynamic whereby internal class contradictions translate into international colonial and imperialistic policies was also accounted for by Arendt. In a section of The Origins of Totalitarianism titled “Imperialism,” as Rose (1992: 220–221) explains, Arendt demonstrates how the equivocality of bourgeois emancipation led to both nationalism and imperialism, by drawing on Luxemburg’s account of capital accumulation expanded overseas. Arendt (1968: 39) notes that Marx failed to recognize what Luxemburg theorized later on: the capitalist economy cannot reproduce and expand itself if it is comprised only of workers and capitalists. It requires “third persons,”–pre-capitalist sectors within the national economy–to realize the surplus value accumulation and increase variable labor capital. Arendt then shows how the initial political indifference of the emancipated bourgeois civil society transformed into the aggressive and Schmittian state policies that led to imperialism and “overseas accumulation of capital” (Arendt, 1973: 15, 123–157). The problem is that Arendt’s phenomenology of right abandons her own critical insights into this “double-contradiction” of modernity. The contradiction between state and civil society–which is tied to the contradiction between universal rights and the sovereign nation–is not accounted for in her phenomenology of the common world. By neglecting these critical insights, Arendt turns away from the institutional challenges of universal rights, and she is not able to offer "a new law on earth” (1973: ix) that she hopes for.

While Arendt’s phenomenology might be overly confined to the non-sovereign common world, Kojève’s phenomenology of the impartial third simultaneously confronts Schmitt’s theory of political sovereignty and reflects Arendt’s critical commitments. The phenomenological theory of the impartial third, actualized in an international federative legal union, offers a rights-centric counterpoint to Schmitt’s political sovereignty. Concurrently, echoing Luxemburg and Arendt, Kojève addresses the tension between universal rights and national sovereignty by scrutinizing the extension of the state-civil society complex into the colonial international political economy. This reaction to Schmitt’s political sovereignty underscores the interrelation of the “double contradiction” pivotal to Arendt’s work. From this perspective, Kojève’s impartial third can be actualized through the socialist reconfiguration of the international political economy as envisioned by Luxemburg (2003): “[t]he goal of socialism is not accumulation, but rather the satisfaction of the wants of the laboring humanity. . .Socialism is, by its very nature, a harmonious and universal system of economy” (p. 447).

Disinterested judgment of the third: Intersubjective foundations of rights

The realization of human rights through the phenomenological intervention of an impartial third depends on neutralizing Schmittian political sovereignty via international juridical harmonization and eliminating economic colonialism through socialism. However, Kojève acknowledges the difficulty of predicting how these conditions for universal rights will be achieved (2001: 94–95). Howse (2006) interprets this uncertainty regarding the peaceful “modification of capitalism in favor of [global] redistribution” as implying a dependence on “democratic” deliberation and “transnational democratic governance” (pp. 98, 103). The problem is that Kojève does not articulate a theory of deliberative democracy. In fact, Howse and Frost concede that Kojève “places no value on self-government or democratic self-determination as ends in themselves” (2000: 25). I will demonstrate that this democratic, or better yet, deliberative and intersubjective, deficit is best illustrated by Kojève’s theory of the disinterested third. I will then show how Arendt’s theory of non-sovereign disinterested judgment, which is fundamental to the right to have rights, addresses this deficit.

Kojève argues that the ideal way to confirm the disinterestedness of the third party (C) is by demonstrating that it is recognized as a just authority–one that is not only legal but, most importantly, legitimate (Kojève, 2000: 154–161). If the parties (A and B) recognize the third party (C) as disinterested, they will accept its intervention without the need for institutional coercion, which is present even in impartial legal institutions. While Kojève touches upon the issue of recognized justice in the Outline of a Phenomenology of Right, discussing the dialectic between customs and the “end-state,” as well as in various conventional forms of law, he does not explore the sources of authority in detail (pp. 128–130, 478–479). He offered his first sustained account of this issue in the Notion of Authority (Kojève, 2014: 22–23), where he uses Herodotus’s fable about the birth of monarchy among the Medes as an example of a sui generis “just authority.” This famous story tells of a man who became king because of his ability to arbitrate fairly in a “Hobbesian” state of anarchy. The crucial point of the story is to demonstrate how people can recognize a just authority and grant power to someone in their midst who is recognized to make disinterested decisions, even without the rule of law and institutions in place.

Instead of emphasizing the intersubjective and discursive recognition of justice by the Medes as a political community that shares a common normative understanding of justice –something one might expect Arendt to do–Kojève quickly bypasses the notion of intersubjective recognition when defining disinterestedness. For him, the point of the Medes story is that it is possible to establish power based on an authority recognized as just. For an arbiter to become a judge, however, they must be assisted “by force and base themselves on laws recognized by the State” (p. 23). Thus, the individual’s ability to arbitrate in a disinterested manner needs to be assumed by the state’s representative, that is, a “civil servant.” The third becomes a disinterested third party not because they are recognized by an intersubjective political community, but because their authority is effectively supported by the force of law. While Kojève’s theory of disinterestedness suggests non-coercive normative authority, it ultimately posits the impartial universal entity as the condition for the third party’s disinterestedness. Therefore, even though Kojève claims in this later Outline of a Phenomenology of Right that disinterestedness is more important than impartiality and presupposes it (2000: 79), in the Notion of Authority the disinterestedness of the third still depends on its impartiality, which would lead us back to the questions about internal and external political distinctions.

In the Outline of a Phenomenology of Right Kojève does not reduce the notion of disinterestedness to impartiality, although he couches disinterestedness in solipsistic terms. This is particularly apparent in his theory of a sui generis disinterested “juridical interest,” which he characterizes as the essential “motive” of the third. Even if the third is truly impartial, Kojève argues that it is important to understand “why, for what motives, man becomes a Judge or Arbiter” (Kojève, 2000: 174). He explains that juridical disinterestedness should be understood as the absence of any material or practical motives, including public “utility,” and instead be based solely on “moral” or “theoretical” considerations (pp. 80, 174). The moral interest of the third is supposed to reside in the “desire to realize justice” by applying an idea of justice to a particular case, that is, by actualizing the concept of right. This desire arises from the tendency that everyone has to confront “the presence of some injustice” and is ultimately rooted in a sui generis pleasure “just as specific as sexual or aesthetic pleasure.” According to Kojève, juridical disinterestedness is based on a “specific (and specifically human) pleasure that one experiences being Arbiter” (p. 175).

In contrast to his Hegelian interpretation of desire as a desire for recognition by others, which leads to intersubjective struggles for recognition, Kojève conceptualizes the third's disinterested juridical pleasure in a radically subjective manner. This subjective tendency to make spontaneous judgments is expressed in a Kantian manner: “in the blink of an eye, one will have formulated a ‘law’. . .[and] applied this ‘law’ to the given case, and attempted to enforce this ‘judgment’” (174). Kojève explicitly references Kant’s idea of “respect or reverence for the law” from the Groundwork to demonstrate that the third “can enjoy a sui generis Authority” and “it is possible to conform to Right simply. . .because one wants the Justice that Right realizes” (Ibid., translation altered). As Kojève defines juridical disinterest in relation to “moral” considerations, it becomes evident that the ability to judge spontaneously is derived from Kant’s formulation of the categorical imperative in the Critique of Practical Reason (Kant, 2015: 28–37). However, the theory of sui generis juridical pleasure can also be seen as a departure from Kant’s antinomic formulation of moral feeling in the Groundwork through the analogy with aesthetic pleasure drawn from Kant’s Critique of Judgment. In the Groundwork, Kant suggests that the disinterested spectator can derive pleasure from the purity of moral will, but he clarifies that we cannot know how the a priori morality of the categorical imperative can generate pleasure (Kant, 1988: 18, 94). It seems thus that Kojève formulates “judicial disinterestedness” by combining Kant’s idea of “respect or reverence for the moral law” from his theory of morality with the articulation of aesthetic pleasure attainable through the disinterested judgment of taste in the Critique of Judgment (Kant, 2000: 46–48).

Even if we assume that the primary theoretical justification for the disinterested third is not based on the story of the Medes but on Kant, the problematic solipsistic definition of the third's juridical disinterest emerges, not the least because Kant’s theory of judgment does not offer an explicit political elaboration of intersubjectivity. Furthermore, this solipsistic conception of the third's motives would not permit intersubjective deliberation or “transnational democratic governance,” as Howse deems necessary. What Kojève’s account lacks is the intersubjective capacity for disinterested judgment, which is championed by Arendt in her theory of the common world. According to Parekh (2008), the enlarged mentality of disinterested judgment finds political expression in the condition of plurality and serves as the foundation for human rights qua the right to have rights. In what is left, I will demonstrate that the far-reaching political implications that Arendt draws from Kant’s philosophy of aesthetic judgment not only rectify Kojève’s theory of disinterestedness but also align with Kojève’s cosmopolitan interpretation of the French Revolution.

Arendt argues that the concept of disinterested pleasure is central to the “political philosophy that Kant never wrote” (Arendt, 1992: 9, 30–31). In the Critique of Judgment, as Arendt explains, Kant expounds that disinterested judgment of beautiful objects depends on the faculty of imagination, which detaches an object from its immediate reality to represent it to the subject. Kant recognized that the representation of beautiful objects is not merely subjective, but that there is an non-subjective aspect to the faculty of aesthetic judgment (p. 43). For Arendt, this implies that we are “interested” in making a disinterested judgment about beautiful things only when there is an intersubjective community that permits our judgment of taste to “reflect upon others and their taste, take their possible judgments into account” (pp. 67–68). By claiming that the most important condition of all judgment is disinterested pleasure, Arendt agrees with Kojève’s suggestion that there is a sui generis pleasure associated with judgment. In contrast to Kojève’s subjectivism, however, Arendt’s reinterpretation of Kant presents an intersubjective theory of disinterested judgment that transcends the individual’s desire to attain pleasure from judgment. Instead, the Kantian question of right–quaestio juris, belongs to an act of judgment that inheres in the public nature of the thinking process itself, forming a basis for the enlarged mentality of sociality and communicability—sensus communis (pp. 42, 70–72).

Arendt shifts the faculty of judgment from the domain of aesthetic objects, to which Kant initially applied his theory, and reframes disinterested judgment in political and historical terms. According to Arendt, while sociability and communicability from the first part of the third Critique correspond to sensus communis, the notion of purposiveness from the second part correlates with the Kantian understanding of history (p. 14). Because our capacity to judge is essentially historical, the object of intersubjective judgment does not have to be a work of art but a historical event (p. 5). It is noteworthy that while Arendt’s phenomenology of the non-sovereign right to have rights dismissed the legacy of the French Revolution, her development of public taste draws directly from Kant’s reflections on the same event. ¹⁴

Arendt brings attention to the fact that, in his evaluation of the French Revolution, the position of a disinterested spectator allows Kant to reveal the historical meaning of the revolutionary event that was hidden from the political actors (pp. 46–47, 54, 58, 65). By acting as a spectator of the French Revolution, Kant partook in the enlarged mentality of a society of “world citizens” and “world spectators” who were able to judge an event in terms of the idea of human progress, that is, the purposiveness of history (pp. 43–44, 54, 58). In other words, the minds of revolutionaries produced the pure concept of right, but it is the disinterested world spectator who evaluates this concept in terms of humanity’s progress and the desirability of its repetition in the future (pp. 45, 58). In the spectator’s mind, the meaning of the French Revolution is revealed to be cosmopolitan existence, and any “evil” or discord committed by the actors is taken to be at the service of the good of posterity (pp. 46–47, 51). Just as Kojève did after him, it is against this background that Kant contemplates the questions of institutions, constitutional law, and international relations (pp. 15, 39–40).

At this point, which incidentally one of the few places ¹⁵ in Arendt’s authorship where she cites Kojève directly, Arendt demonstrates a greater alignment with Kojève’s interpretation of the French Revolution and Hegelian philosophy. This affinity is rooted in her skepticism toward Kant’s use of teleology and providence as a standard for judgment. She argues that the idea of “Infinite Progress” in nature cannot serve as a criterion because its open-endedness deprives the spectator of the criterion of judgment (pp. 56–57). Referring to Hegel’s dictum that philosophy spreads its wings at dusk, Arendt suggests that this criterion is produced by the power of imagination to make absent things present. Because imagination is a reproductive faculty, it does not reproduce ineffable ideas such as Infinite Progress but rather reproduces something that has been experienced, such as the event of the French Revolution (p. 79). Arendt further notes that Infinite Progress contradicts the idea of human dignity, as it subsumes individual singularity (pp. 77, 88). To salvage the singular, Arendt prefers the faculty of imagination from Kant’s third Critique, which–unlike the faculties of the mind in the first Critique, can communicate singular events through intersubjective “reflective judgment” (pp. 83, 88). On the basis of these two claims, the French Revolution provides an exemplary validity for reflective judgment (pp. 84–85).

Arendt’s revised position on the French Revolution emphasizes a crucial connection between disinterestedness and political action. While Kant regarded the French Revolution as the embodiment of cosmopolitan existence and right, he did not provide a guiding principle for action. He regarded revolution as a coup d’état, a clandestine event that contradicts the principle of publicity (pp. 44, 47–49, 52). Arendt argues that Kant’s disapproval of the revolution is based on a misunderstanding of the public nature of the event (p. 60). The implication is that if the spectator’s position understands the French Revolution as an event that aligns with the principle of publicity, then there can be a convergence between judgment and action in the idea of a united humanity (pp. 63–64). This is Arendt’s other departure from Kant’s original theory, consistent with Kojève’s theory. Such a convergence highlights the most pronounced cosmopolitan perspectives of both authors, allowing for an elaboration of the concept of disinterestedness in intersubjective terms and associating the moral significance of the French Revolution with cosmopolitan political action of the impartial third.

Concluding remarks

Not surprisingly, Kant appears as a reference for Arendt and Kojève’s cosmopolitanisms more than Hegel. Although Kojève uses the Hegelian master-slave dialectic instead of Kant’s metaphor of nature to explain the societal antagonism that leads to a lawful order among men (Kant, 2009: 13), the resulting cosmopolitanism aligns with Kant’s teleology of history and takes a step further. Kant believed that a federation of peoples cannot be considered an international state, as each state sees itself as sovereign and the positive idea of a world republic cannot be achieved (pp. 102–105). Kojève resolves this conundrum in his response to Schmitt by suggesting a logic of legal unification leading to a federation where states are no longer sovereign, and economic colonialism transforms into socialist redistribution. However, Kojève noted that the final state/society might never be realized because “historical evolution proceeds by negation—that is, freely, or in an unforeseeable way” (2000: 92). For this transformation to occur, there must be a discursive agreement on the project of the third that can assess the unforeseeable events in light of principles of right. This makes the disinterested third, conceived in terms of the Arendtian theory of judgment, a way to assess the progress of universal rights against the French Revolution as an event of exemplary validity. Arendt’s theory of intersubjective judgment gives ground to the historical tradition from which Kojève speaks.

This convergence between Kojève and Arendt may not only correct Kojève’s concept of disinterestedness but also address some problems with the practical application of Arendt’s theory. Beiner (1992) identified a contradiction between Arendt’s understanding of judgment as a political faculty of an enlarged mentality exercised in the “public sphere” and disinterested theoretical or contemplative judgment (p. 139). Similarly, Bernstein (1986) noted that Arendt’s position oscillates between contemplation and political practice (p. 237). However, if Arendt’s theory of reflective judgment is anchored in the French Revolution, the practical convergence between Arendt and Kojève becomes the sensus communis of human rights. As an indication of that, in discussing the third party’s sovereignty, Kojève states that the development of international right will depend not only on the economic and interstate interactions but also on a juridical “world opinion” (2007: 314). Given my discussion of Arendt’s non-sovereign right to have rights, it is particularly revealing that Kojève suggests that world opinion plays a decisive role in the transformation of sovereignty. As Frost and Howse point out, “international law is no longer simply a product of states, it is also in part a product of expert jurists and publicists (opinio juris)” (2000: 8). The world society, comprising the academic community and human rights organizations, can be seen as embodying this international public realm insofar as the opinion of scholars, lawyers and activists would be distinct, even if not separate, from the “reason of the state” and from economic society. In this respect, Arendt’s position on the common world is consistent with the role Kojève attributes to world opinion. This is not to downplay the theory of the impartial third regarding international institutions and egalitarian distribution, but rather to tie it to firm and explicit foundations that do not compromise democratic deliberation. This way, the disinterested third can shape the content of rights and facilitate the international unification of domestic rights and economic harmonization in line with the theory of the impartial third.