Critique of Rights. Christoph Menke

mean between loss and gain.”³ This rectification of equality can also be described as a way for each to receive his share – or, to put it simply, his right [Tr. – sein Recht]:

      Thus the just is a sort of mean, inasmuch as the judge is a medium between the litigants. Now the judge restores equality: if we represent the matter by a line divided into two unequal parts, he takes away from the greater segment that portion by which it exceeds one-half of the whole line, and adds to it the lesser segment. When the whole has been divided into two halves, people then say that each “has their share,” having got what is equal.⁴

      Aristotle’s conception of one person’s right vis-à-vis another is that a person has the right to his own. In the case of loss, a judge corrects this right by awarding restitution to the aggrieved party, so that the latter thereby recoups his just or equal share:

      to have more than one’s own is called gaining, and to have less than one had at the outset is called losing, as for instance in buying and selling, and all other transactions sanctioned by law; while if the result of the transaction is neither an increase nor a decrease, but exactly what the parties had of themselves, they say they “have their own” and have neither lost nor gained. Hence Justice in involuntary transactions is a mean between gain and loss in a sense: it is to have after the transaction an amount equal to the amount one had before it.⁵

      The right that one party has is his own as equal share. The individual’s claim is the just share, which is due him according to the rules of equal distribution.

      This is just as applicable to the voluntary transaction between persons in exchange, in which justice does not exclusively require providing restitution for a loss, but can also be satisfied by simply engaging in a quid pro quo with the other party. To be sure, equality cannot be understood here in arithmetical terms (as is the case in restitution, where the loss suffered is rectified: “For it makes no difference whether a good man has defrauded a bad man or a bad man a good one”).⁶ Proportional justice, however, which determines the exchange of different goods, has precisely the same meaning: it produces a state of equality – a state in which it can be said that, with his just share, each has received his own.

There will therefore be reciprocal proportion [C.M. – in exchange] when the products have been equated, so that as farmer is to shoemaker, so may the shoemaker’s product be to the farmer’s product. And when they exchange their products they must reduce them to the form of a proportion, otherwise one of the two extremes will have both of the excesses; whereas when they have their own, they then are equal, and can form an association together, because equality in this sense can be established in their case.⁷

      The demands that individuals make on each other are legal claims, which they are entitled to make against one another, if the goal is for each to “have their own.” Similarly, in contract and indemnity law, both exchange and restitution require a state of equality that defines individuals’ respective entitlements. “Thus attention to the equality of gain and loss in corrective justice [C.M. – likewise with the equality of rendering a service and receiving the same in return in contract law] presupposes the notional equality of initial holdings,”⁸ which is either compensated for in restitution or realized in exchange. Equitable distribution determines what this equality of shares or “initial holdings” (as Weinrib puts it) consists in, however, and thereby determines each person’s own: right as one’s own is what is commensurate or corresponds to each person as he is. Just as the arithmetical equality of rectification presupposes that distribution disrupted by loss was rectified,⁹ so the proportional equality of exchange consists in the realization of goods and rendering of services according to their relative significance in the life of the community – in the satisfaction of needs whose regulation is the state’s political responsibility. The fair share is the basis for corrective equality and for the equality of exchange. Right [Recht] as an individual’s claim is based on law [Recht] as just order. The proper ordering of persons and objects whose regulation, production, and safeguarding is a political matter, and forms the basis for any private claim that one individual is entitled to make vis-à-vis another.

       2 Rome

      Roman law adopts, virtually unchanged, the basic definition of the legal claim, which was framed by a moral understanding of law in Athens. In Rome, the fact that someone has a right, and thus a justified claim on someone else, also means that such a claim is his own, that it rightfully belongs to him, and that, in particular, it is his fair share of something. Justice – in other words, a state of affairs in which persons and things stand in a relation of equality – is the basis of rights. Cicero is drawing on this when he reproaches “the friends of the people,” who push for a redistribution of land and the eviction of previous owners:

[They are] undermining the foundations of the commonwealth: first of all, they are destroying harmony …, and second, they do away with equity [C.M. – or equality: aequitatem], which is utterly subverted, if the rights of property are not respected. For, as I said above, it is the peculiar function of the state and the city to guarantee to every man the free and undisturbed control of his own particular property [suae rei cuiusque custodia].¹⁰

      Anyone deprived of his own suffers an injustice. In contrast, those who make it their business “to look after the interest of the state” see to it that “every one shall be protected in the possession of his own property by the fair administration of the law and courts.”¹¹ Laws founded on right [Rechtsgesetze] articulate what constitutes relations of justice or equality, and what is appropriate for each person in such just relations is his own. This is his right: the right that a person has is his own, and justly belongs to him. “To each his own: suum tribuens…. It is the task of justice to apply to each and every thing the legal provision that corresponds to it.”¹² Equitable distribution precedes an individual’s right, and is the subject matter of legal practice. “Ius is the share that is awarded to someone, the result of distribution…. The word [C.M. – ius] designates the fair share”: one has a right according to the standard of justice [Gerechtigkeit] and hence only to something equitable [Gerechtes].¹³ The individual’s right is his fair share.

If we characterize this as the alignment of Roman law with moral law (their alignment in the basis, namely as the foundation of rights in justice), then on Villey’s interpretation such an alignment is different from moral law due to its abstractness: Roman law abstracts from morality in the exercise of rights. First of all, this indicates how equality is understood in the civic relationships that establish law. The Roman citizen’s right is also his own fair claim to a share equal to anyone else’s. “The reason for making constitutional laws” is “to hold the higher and lower classes in an equality of right”; right must correspond to “equality of rights before the law … otherwise they would be no rights.”¹⁴ From now on, however, this equal share consists in the abstract fact of being a free Roman citizen. He is an equal citizen insofar as he bears the title of pater familias: master in his own house, able to freely dispose of matters there. He possesses a “sphere of independent activity; the Roman is only responsible for the manner in which he exercises his rights over his property, his family.”¹⁵ Because this abstract position of equal civic status shapes the crucial regard for equitable distribution, citizens can no longer be guided in their association with each other by an orientation to an authoritative hierarchy of value when they contribute to or satisfy needs deemed politically important in the state, as they were on the Aristotelian model. If each person’s own only consists in being a free citizen like all other citizens (“an equality in which all count as the same, i.e. as persons”),¹⁶ the standard of their exchange cannot, indeed must not, be left up to them. However the quantitative ratios turn out, exchange is only considered just because (or when) each person is regarded as a property owner. One’s own, which equitable distribution allots to each person, consists in being a property owner.

      This stage of abstraction in Roman law leads to misunderstanding (something contested