Critique of Rights. Christoph Menke

if, because of this, they are merely defined as a moment in the legal relationship between two persons. The step from rights as a property of the subject to rights as a moment in a relationship is correct, but insufficient. To stop here amounts to a depoliticization and a dehistoricization of the concept of rights.

This thesis is opposed to a theory that – in Ernest J. Weinrib’s pointed formulation⁵² – seeks to protect the “autonomy” of “the idea of private law” from its economic functionalization and from sociological critique. The goal of this theory is to conceive the legal relationship between a person who is entitled to something and a person who is correspondingly obligated as an independent relationship. In other words, this theory aims to conceive such a legal relationship in the juridical “form” that it has itself established. It thus characterizes this relationship as a “direct,” “immediate” relation between two persons, which is defined by a “correlation” of entitlement and obligation. Thought in purely immanent terms, this relation’s “unity” is to be found in the correlation of law and duty, since this correlation entails that the basis for one person’s responsibility, for that person’s having to do something (having an obligation), and the basis for another’s claim to something (having a right), is the same. On Weinrib’s thesis, this is why the private legal relationship can only be understood on its own terms.

      One aspect of this thesis is the irreducibility of legal obligation. In even their most elementary forms, private legal relationships between persons (such as relations of exchange) must become autonomous, independent of the motives that inclined individuals to enter into them (and of the social functions that fulfill their exchange relations). Exchange cannot exist without the normative correlation of entitlement and obligation, which bridges the distance, however minimal, between individual actions. To exchange something is completely different from handing things over at the same time. “It was here,” writes Nietzsche on contractual relationships, “that promises were made.”⁵³ The breeding of animals that can (and therefore may) promise is thus presupposed. To enter into exchange with someone always already means to recognize the equal normative status of that person (or, in other words, to recognize the other person as an equal). Instead of merely being an individual distinct from me, the other becomes a person equal to me, because she has something at her disposal that I want from her, and I have something at my disposal that she wants from me. Mutual recognition or the equality of persons is the necessary condition for the correlation of rights and obligations in the private legal relationship.

The recognition or equality of persons, however, which is presupposed in exchange, simultaneously exceeds every act of exchange: it is not merely relative, between the two of us, but general. In exchange, the normative status that I recognize in another is based not on my act of recognizing you, but on the application of a general rule that precedes this act. We are both equally subject to this rule, whose particular cases we thus equally constitute. The exchange relationship is a private legal one because it is a matter of the entitlements and obligations in a relationship between individual persons (who, as particular individuals, have different motives for entering into it). The exchange relationship is only a private legal one, however, because the persons bound to each other by entitlement and obligation fall under a general rule, which confers on them their normative status as equal persons.⁵⁴ In a relationship between mere individuals, there are no entitlements and obligations at all. Such a relationship has no normative content on its own. Normativity (in the interactions between individuals) signifies equality, and equality requires generality: a rule or a law [Gesetz].

      The force of obligation, which first makes one person’s claim on another into an entitled claim, is therefore not to be explained (as Weinrib believes) on the basis of the “immediate,” “direct” relationship between the two parties. In other words, this relationship (and thereby right in the subjective sense) is not autonomous: it is based on right [Recht] as law [Gesetz] (right in the objective sense).⁵⁵ Right as claim cannot be understood at all – claim is not understood as a right – without understanding that it is based on right as law. It only achieves its normativity on this basis. Savigny formulates this relationship, in which a basis is established, as follows:

      The decision upon the individual right [C.M.- in the subjective sense] is only possible by a reference of the particular matters of fact to a general rule by which the particular rights are governed. That rule we simply call law [Tr. – Recht] or law in general: some term it law in a general sense.⁵⁶

      One person’s rights and claims vis-à-vis another are only possible on the basis of law, that is, on rules that are generally valid. In other words, a person’s private rights vis-à-vis another are based on both persons’ subjection to law [Gesetz]. As the correlational theory demonstrates, rights only exist in the legal relationship, but legal relationships only exist in normative orders whose generality is able to give rise to equality. The normativity of the private legal relationship is thus not autonomous, as the correlational theory claims, but is something that is done, an effect of law [Gesetz]. The normativity of the private legal relationship therefore has a political basis. For the relationship between the individual and law [Gesetz] is “political” because it is a relationship of membership, in which the individual takes part in a general order. This is the basis of private law. Private law is also called civil law, ius civile, because it is the law [Recht] of citizens who are equally under the law [Gesetz]; private law is political.⁵⁷

If legal relationships between persons, in which rights exist as individual claims, are therefore political insofar as they arise on the basis of right as law, then the question of the form of the rights that individuals have over against each other leads to the political question of the form of the administration of law over individuals. Why does the legal system grant an individual’s claim on another? How does the legal system understand the normative force of the claim that it secures for a person in his relation with another, and on what basis? To put this more generally and fundamentally: Why does law rule so as to give rise to rights? How does law rule by giving rise to rights? And what gives rise to law – what kind of politics, society, subjectivity – by giving rise to rights?

      This question concerns the relation between the legal system and the claims of individuals against each other: it is concerned with how the legal system understands what is at issue in the claims individuals make against each other and therefore why these claims occur. This question, however, has been answered in a variety of ways over the course of history. The program of identifying the one suprahistorical “idea of private law” (Weinrib)⁵⁸ can only refer to the abstract aspect of the correlation of rights and duties within an already constituted legal relationship. In contrast, the political question of how law rules, in giving rise to such legal relationships with their legal claims, can only be answered by noting that, in private law too, there are various historical ways in which law rules, which must be conceptually distinguished from each other. As Savigny’s reference to “the Modern Roman Law,” in contrast to correlational theory, succinctly makes clear, the politicization of private law implies its historicity. Law rules differently in history, it entitles differently in traditional and in “Modern Roman Law.”

It is important to note, however, that this differentiation is concerned neither merely with content nor only with the goal of lawful creation of legal claims. The historical differentiation indicated in Savigny’s title instead concerns the form of rights or rights as form. If, according to Weinrib’s definition, the form of rights is their essence; and if the essence of rights consists in the normative force of claims (with Kant: the “capacity for putting others under obligations”), then we cannot define the form of rights without grasping the nature of this normative force. The normative force of rights, however, is based on law [Recht] and thus on the individual’s (“political”) subjection to law [Gesetz]. To only analyze rights by way of their correlative relations to obligations is thus not really formal at all, but a mere formality. Such an analysis speaks of rights, without grasping their normative force. For it wishes to speak of right while excluding politics – an exclusion that Weinrib considers merely an external agenda.⁵⁹