Critique of Rights. Christoph Menke

“private” rights prior to the positive legal system of the “civil constitution.” “What belongs to each is only secured, but not actually settled and determined” by such a constitution. “… Prior to a civil constitution (or in abstraction from it), external objects that are mine or yours must therefore assumed to be possible.”³² The existence of private rights here has a “provisional”³³ character (in the literal sense of the word): it remains in force “as long as it does not have the sanction of public law, since it is not determined by public (distributive) justice and secured by an authority putting this right into effect.”³⁴ Private claims on what is mine or yours are thus pre-juridical (and in this sense natural) insofar as they are not under the legal protection of a public authority. In the crucial normative sense, however, they are already constituted by right [Recht] as law [Gesetz]: “for the obligation here arises from a universal rule.”³⁵ Even natural rights are based on law, according to Kant: on a law that exists prior to and independent of all public legislation.

      Either natural rights that precede law [Recht] do not yield any obligations, and for that reason are not really rights at all, and therefore not law’s basis. Or natural rights that precede law are actually rights that are binding, but in this case are constituted according to a legal rule and thus, again, not the basis of law.

      The corollary of this critique of the liberal “dualism” of a right and of law, which first renders rights independent from law and then explains the latter’s basis, is expressed by Kelsen as the insight that rights only exist in juridical relationships:

Thus if the concept of subjective right and the subjective bearer of rights reveals any ideological function …, all that emerges are juridical relations between human beings, or more precisely between statements of fact regarding human behavior that are connected to each other by the juridical norm, as its content. The juridical relationship is a relation between two statements of fact, one of which is a human behavior defined as a juridical obligation, while the other is a human behavior defined as an entitlement.³⁶

      Juridical relationships are the starting point, not rights. This means, first, that rights exist in relation to obligations; rights designate positions in a relationship that also includes other corresponding normative relations or, to put it simply: positions of obligation.³⁷ And, at the same time and contrary to how they are understood in terms of natural law, this means that entitlements can also only be grounds for obligations within particular juridical relationships: where juridical relationships exist, it is possible to say that on their basis someone is obligated to behave in a certain way because someone else is entitled to expect such behavior and to demand it. Where juridical relationships exist, rights can be the basis for obligations. That juridical relationships do exist – the premise of this relational basis – does not for its part depend on the existence of a rule or a law [Gesetz] that links the two kinds of behavior to each other in this specific normative way. According to Alexandre Kojève, it is only “the intervention of a third human being, C, impartial and disinterested” as representative of the “legal rule” which forms the “necessary or ‘essential’ constitutive element”:

      This intervention [Tr. – of a third human being] is the specifically juridical element. It is this which confers a juridical character to the situation as a whole…. In this case, and in this case alone, we will be able to say the following:

      a) A has the droit [Tr. – the right] to act as he does; his action and the effect of this action constitute his subjective right, and he himself is the subject of this droit, [and] therefore a subject of droit in general (or a juridical person, either physical or moral).³⁸

Rights only exist in juridical relationships, and juridical relationships only exist under laws [Gesetzen]: thus Kelsen’s twofold move here – similar to Wittgensteinian linguistic therapy – traces rights back to their logical or grammatical place in our juridical discourse. The revolutionary claim of a liberalism founded on natural law, which on Strauss’ interpretation is supposed to be expressed by the distinction of “right” and “law,”³⁹ is that rights are the basis of law [Recht] or statute [Gesetz], and this claim is therefore rejected by Kelsen as ungrammatical and meaningless. To put Kelsen’s thesis into sharper contrast: rights can never be the basis of law, since they are only normatively binding, and thus obligatory, on the basis of law.

      As a result, Kelsen concludes that the conception of subjective right as an independent category must be abandoned: subjective right is only a “reflex of legal obligation.” It can be “reduced to objective [right], attributed once more to objective [right].”⁴⁰ For Kelsen, to distinguish subjective right from objective right amounts to claiming that the former is the basis of the latter. Because that claim is meaningless, we can dispense with subjective right (in other words, a claim that is conceptually distinct from law) as a legal category – a misleading construction with ideological intentions.

      However, this conclusion is wrong. For Kelsen’s alternative – subjective right as ultimate basis or as mere reflex – is a false dichotomy: it misses crucial insights into the modern distinction between ius and lex, right and law,⁴¹ between a right and law [Recht], between claim and law [Gesetz]. To understand this distinction, we must grasp its precise significance and the reason for this significance, namely that it frees the legal claim from the derivative position of being a mere reflex, without at the same time attributing an authoritative force to it that would form the basis for rights. We thus require a different understanding of the modern declaration of the primacy of rights over law, which Strauss justifiably considered to be the principle that inaugurates modern politics: an understanding that does not view the “priority of right over law” (Strauss) to mean that the claim forms the normative basis for law. For, conversely, Spinoza’s argument is that a claim does not have any normatively binding force prior to law, and thus we arrive at Kant’s argument that any claim has normatively binding force only by virtue of law.

      The basic thesis of this alternative understanding is that the modern priority of rights over law is a redefinition not of law’s basis, but of its form. The modern distinction between a right and law is the revolutionary act of modern politics: not because it prioritizes rights as the basis of law, but because it radically transforms law. The modern distinction between a right and law expresses a revolution of legal form. It defines law as the right of rights.

A New Form of Government: “Modern Roman Law”

This is already the meaning of Savigny’s distinction between the two conceptions of right, right in the subjective sense and right in the objective sense. For Savigny himself, and not merely his critics, also understood subjective right in relational terms. The basic concept of Savigny’s legal theory is the juridical relationship, and not subjective right.⁴² Thus for Savigny, the concept of subjective right is not at all supposed to designate a prior ground at rest in itself, on which the legal system can be established. Rather, Savigny employs the concept of subjective right to characterize the specific new form of currently existing juridical practice.

      The “Roman Law” to which Savigny’s title refers (in what follows, this will be capitalized [Tr. – and in quote marks] to distinguish it from the juridical era of Roman law, or law in ancient Rome) is civil or private law, which he sharply distinguishes from public law: “The first has for its object-matter the state, that is the organic manifestation of the people; the second the totality of jural relations which surround the individual man.”⁴³ Private law is the “jural relation … as a relation between person and person, determined by a rule of law.”⁴⁴ It is only here that we find “right in the subjective sense.” There can be no individual rights here, and public law is operative as the obligation-imposing statute, since “in public law the whole appears as the end, the individual as subordinate.”⁴⁵ In contrast, the private juridical relationship between persons is a matter of rights as an individual person’s