Critique of Rights. Christoph Menke

law in this same work.

      44 44. Savigny, System of the Modern Roman Law, 271.

      45 45. Savigny, System of the Modern Roman Law, 18.

      46 46. This already holds true for the first basic definition of the modern character of rights: that they are supposed to assure or secure self-preservation and are thus enabling [ermöglichend]; see pp. 49–60 in this volume.

      47 47. Franz Böhm, “Privatrechtsgesellschaft und Marktwirtschaft,” Ordo, 17 (1966), 75–151, here 76. Marx formulates the same thesis as follows: “In Roman law, the servus is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself (see the Institutes). It is, consequently, equally clear that although this legal system corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of the juridical person, precisely of the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society. But the development of this right itself coincides completely with the dissolution of the Roman community” (Karl Marx, Grundrisse: Foundations of the Critique of Political Economy [London: Penguin, 1973], 245–6).

      48 48. As Richard Tuck explains, we should also note why Grotius was in a position “to treat the law of nature as totally to do with the maintenance of people’s rights”: “Rights have come to usurp the whole of natural law theory, for the law of nature is simply, respect one another’s rights” (Tuck, Natural Rights Theories, 67).

      49 49. Niklas Luhmann, “Subjektive Rechte: Zum Umbau des Rechtsbewußtseins für die moderne Gesellschaft,” in: Gesellschaftsstruktur und Semantik, vol. 2 (Frankfurt: Suhrkamp, 1981), 45–104, here 47. This is directed against the theory of subjective right’s self-conception: according to Michel Villey (to whom Luhmann refers), rights are necessarily subjective because they are grounded in the subject: it is “a right which emanates from the person, which is inherent in the person, which is its attribute [ … ]. To be precise: subjective right is a quality of the subject, one of its faculties, more precisely a franchise, a liberty, the possibility of acting” (Villey, “La genèse du droit subjectif chez Guillaume d’Occam,” 101).

      50 50. Luhmann, “Subjektive Rechte: Zum Umbau,” 46.

      51 51. See chapter 5 in this volume.

      52 52. Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995), esp. ch. 2: “Legal Formalism.” For the quotes that follow, see the overview in Weinrib, Idea of Private Law, 10f., and ch. 5, “Correlativity,” in particular.

      53 53. Friedrich Nietzsche, On the Genealogy of Morals and Ecce Homo, trans. by Walter Kaufmann and R.J. Hollingdale (New York: Vintage, 1989), 64.

      54 54. It is only for this reason that the exchange relationships between these two persons can be binding for a third party. Every third party is obligated to recognize the new arrangement reached between the two persons in question (instead of saying, for example, that an item has been abandoned and can thus be appropriated by anyone the moment a person relinquishes his item – which occurs in every act of exchange).

      55 55. And thereby ultimately on a difference of power, according to Nietzsche, since the demand for “equivalence” (which breeds a creature capable of promises) succeeds exogenously through “a stronger power” (Nietzsche, On the Genealogy of Morals, 75).

      56 56. Savigny, System of the Modern Roman Law, 8. This methodologically corresponds to the argumentative flow in Hegel’s theory of abstract right: from the (property) claim of the individual person to the (contractual) relationship between two persons with each referring to the corrective authority of the third; see G.F.W. Hegel, Elements of the Philosophy of Right, trans. by H.B. Nisbet (Cambridge: Cambridge University Press, 1991), 73f., 10 f., 130f. (§§ 41f., 71f., and 103f.).

      57 57. Regarding Cicero’s definition of ius civile, Villey writes: “What is to be defined is civil law, ius civile. According to Aristotle, the nature of law in the strict sense is political. [ … ] The actualization of law presupposes a judge (dikastēs). A procedure is necessary, institutions which can only exist in a city. True law was only exercised within the same actual city, and Aristotle called it dikaion politikon, which was translated into Latin as ius civile” (Michel Villey, Le droit et les droits de l’homme [Paris: Quadrige/PUF, 2008; 1st edn 1983], 57f.).

      58 58. Following Weinrib, Florian Rödl discusses the “a-historical” character of private law, in “Normativität und Kritik des Zivilrechts,” Archiv für Rechtsund Sozialphilosophie, Supplement 114 (2007), 167–78, here 174. For a critique of this thesis see the discussion of Weinrib’s interpretation of Aristotle in the next chapter, note 9.

      59 59. Weinrib, Idea of Private Law, 23ff. According to Weinrib, private law is free of any “political aspect” because it has no extrinsic purpose (Idea of Private Law, 212).

      60 60. Tuck, Natural Rights Theories, 2.

      61 61. Niklas Luhmann, “Zur Funktion der ‘subjektiven Rechte’,” in: Ausdifferenzierung des Rechts. Beiträge zur Rechtssoziologie und Rechtstheorie (Frankfurt: Suhrkamp 1999), 360–73, here 361. At a – systematically – later point, the category of the subject will nevertheless become indispensable for the analysis of the understanding of rights in bourgeois law.

      62 62. Luhmann, “Subjektive Rechte: Zum Umbau,” 46.

      63 63. Luhmann, “Subjektive Rechte: Zum Umbau,” 49.

      64 64. Luhmann, “Subjektive Rechte: Zum Umbau,” 51.

      65 65. Luhmann, “Subjektive Rechte: Zum Umbau,” 73.

      66 66. Luhmann, “Subjektive Rechte: Zum Umbau,” 54.

      67 67. “De iustitia et iure,” (I.I) in: The Institutes of Justinian, trans. by Thomas Collett Sandar (London: Longmans, Green, 1878), 5.

      68 68. Villey, Le droit et les droits de l’homme, esp. chs. 1 and 9. For a critique of the “German” critique of Roman law, see Le droit et les droits de l’homme, 55.

2 INTEREST IN SELF-PRESERVATION

      To understand different legal systems, we should first ask: how is law apportioned or distributed? To put this more precisely: what does it mean to say that law safeguards the respectively obligation-imposing claims of individuals? And how does law understand the nature of these claims? How does such safeguarding define the equality of law [Recht]? And how does this determine the concept of law [Gesetz]?

From Share to Power

       1 Athens

      Greek legal theory grasps the concept of a right – as Aristotle puts it in the fifth book of the Nicomachean Ethics – in its definition of “corrective” justice, “corresponding to the two classes of private transactions, those which are voluntary and those which are involuntary.”¹ It is essential that transactions regulated by corrective justice involve a relationship between equals. Such justice does not involve the relationship to an “officer.”² Corrective justice constitutes the field of private law and applies to both voluntary and involuntary transactions. In other words, it applies to “the interchange of services … in the form of Reciprocity,” in which the parties concerned exchange goods with one another. And it also applies to transactions in which one party has injured another, and where the resulting damage must now be corrected.

What justice means here is revealed in this second case, in the rectification of damage or loss: establishing or securing a state of equality,