Critique of Rights. Christoph Menke

Savigny, the distinction between the two usages of the term “right” should thus not be understood to mean that both are considered to be normatively independent of each other, which would then entail that the claim has normative priority over law. Rather, Savigny is concerned with differentiating two domains or types of law that are sharply distinct in their basic relations: on one side, public law, the only place where the normative structure of law and obligation prevails; on the other side, private or civil law, in which mutual equals have claims on and obligations to each other. While rights cannot exist in the individual’s public or political relationship to his or her community (since in this relation of membership there is no reciprocity or opposition: the community is just the person him- or herself in another form), private law is the domain of rights: for Savigny, private law is the form of law that is exclusively concerned with the rights of individuals. While the community is the individual’s goal in public law, in private law the individual’s claim becomes the goal of the legal system.

In restricting rights to the domain of private law, we can clearly see the limits of Savigny’s line of thought: he misconstrues the logic and dynamic that were inscribed in the modern conception of rights from the very beginning and simultaneously driven beyond the domain of private law. In what follows, this will be shown in detail.⁴⁶ At the same time, however, Savigny defines modern private law in such a way that the concept of law is utterly transformed. Private law’s power to transform law itself is a direct consequence of its new social significance. For modern “Roman Law” is already distinguished from traditional law by the fact that it defines not merely a limited domain, but the totality of society and its normatively regulated relations. “Private law exists in all societies,” explains Franz Böhm, it is “an element of the most diverse social orders. But it is only one element, not the whole of social order.”⁴⁷ In contrast, private law in modernity comes to define the whole of society; this is why Böhm calls modern civil society “private-law society.” Bourgeois society’s totalization of private law, making it into the fundamental principle of society, also simultaneously generalizes the functional definition of private law, something emphasized by Savigny: the securing of the individual’s rights becomes the new functional definition of law in general. Law now exists so that rights may be secured.

      For this reason, Savigny’s “Modern Roman Law” is not merely a special domain of law that is concerned with the claims of individuals. In fact, through its social totalization, it fundamentally reinterprets the category of the claim as a legal concept. This revolutionizes the concept of law, making manifest the modern distinction between a right and law: the modern declaration of the primacy of the claim – the primacy of the claim over law [Gesetz] – signifies a redefinition of law [Recht]. Distinguishing between claim and law [Gesetz] as two meanings of “right” [Recht] amounts to establishing a new concept of law and of claim: a new understanding of the relation between claim and law [Gesetz]; an understanding in which claim has priority over law or precedes law, because now the task, indeed the function of law in general, is to secure claims.⁴⁸

The modern primacy of rights is thereby understood in a manner that is rechtsimmanent (Niklas Luhmann) [Tr. – “immanent to law”]. Strauss and Kelsen understood the ideological program of natural law liberalism to be its wish to base law on rights and to base rights on the subject; “the basis of rights was now the individual, conceived of as subject.”⁴⁹ In contrast, Savigny’s choice of the title “Modern Roman Law” provides a perspective from which we can understand the primacy of rights functionally, rather than normatively and thus concerned with grounding rights. The “rupture of subjective and objective right” is therefore a matter not of the “source of law” but of “legal protection,”⁵⁰ a matter not of the basis, but of the meaning and function of law. “Primacy of rights” means that law [Recht] – right [Recht] in general – is now a matter of safeguarding and securing rights. Law operates solely by safeguarding and securing juridical claims.

      The talk of “natural rights” thereby comes to have a different meaning as well. If we understand the primacy of rights normatively, rights are deemed “natural” because they are supposed to precede law [Gesetz] and form its basis. Yet, as we have seen, modern natural law, in Spinoza or Kant, never grasped the connection between a right and law (even if both Strauss and Kelsen attribute this position to modern natural law and criticize it as the ideological primacy of rights). For this reason, talk of the natural when it comes to rights means something completely different from a source of right before law. Instead (as in the thesis we are about to consider), it is the contents of a claim that are natural, the aspirations that bourgeois private law, socially totalized, exists to safeguard and secure, according to Savigny. This thesis runs as follows: if the primacy of rights is to be understood functionally and not normatively, then natural rights are not law’s basis but its matter. Aspirations and actions are natural, when law has functionally provided for their safeguarding and securing. To say that – according to its new modern definition – there is nothing more to law than rights means that law is a matter of normatively securing prior and given natural aspirations and actions (that is, ones existing before law). The primacy of rights is functional, not normative, but the functional understanding of the primacy of rights simultaneously entails a new conception of the normativity of law. It entails defining the normativity of law [Recht] by its relation to natural claims. The normativity of the modern right [Recht] of rights has the structure of a legalization of the natural.

      Savigny’s examination of “Modern Roman Law” focuses on the historical upheaval in private law. This is related to the thesis that private law today creates a new concept of (subjective) right or the claim: the “natural rights” talked about in modern theory are not a new class of rights. Above all, they are not pre-juridical rights that form the basis for law, but signify a radically new way to understand what rights are.

      This new understanding combines two features:

      1 The functional totalization of the claim. The definition of modern law (as such or in general) is the securing of rights.

      2 The naturalization of the content of rights. The modus operandi of modern law consists in the legalization of the natural.

The modern totalization of private law creates (i) a new understanding of law (all law secures rights), which (ii) implies a new understanding of rights: all rights legalize the natural. On Savigny’s view, this new understanding of law and of rights begins in private law, but – contra Savigny – it is not limited to it. Modern private law establishes a new understanding of law [Recht] and of rights that is impelled beyond private law according to its own concept and from its own internal logic, since it inverts the meaning of law [Gesetz] in general by granting claims primacy over law. As I will show in the third part of this book, the modern conception of rights definitively includes private and public rights. As remains to be shown, however, we can only understand the new modern meaning of the concept of rights if we understand it on the basis of the historical upheaval of private law that marks the beginning of modernity.

Excursus: The Politics and History of Civil Law (Weinrib)

      Why is the distinction between the two meanings of “right” [Recht] – between law [Recht] and a right – so fundamental in the modern conception of law? Because drawing this distinction means determining the modern conception of rights by radically redefining the relation between law [Gesetz] and claim. This redefinition is radical because it involves the relation of norm and nature (and because this relation, as will be shown, is constitutive of law⁵¹). – We thus have our question, and a provisional answer that remains to be further developed in what follows.

      This answer is critical of two other common ways of defining law as claim. First, it clearly rejects the idea that the concept of a right (in the subjective sense of the word, namely a right which one has and exercises) can only be understood on the basis of a subject who is the bearer of rights: rights as claims are not a property