Critique of Rights. Christoph Menke

law [Recht] from modern law (this is why Villey contests such an understanding), however, is thereby blurred, indeed it even vanishes from sight. This misunderstanding consists in conflating the Roman citizen’s right [Recht] as property owner or his right as ownership with a right over his property. On this view, that which is one’s own, which equitable distribution allots to the Roman citizen, is understood to be the power to use one’s own things. This is a misunderstanding because “ius is not subjective, in the meaning this word comes to have in scholastic language, it is objective…. A share in things and not power over things.”¹⁷ Right [Recht] as fair share and private power, which on the Roman view enables the paternal property owner to dispose over what is his own, are indeed related to each other. However, “If any ius has as its practical consequence the exercise of a potestas, then it is not this potestas, because ultimately law itself has by no means authorized me to exercise an arbitrary and unlimited power in my domain.”¹⁸ My right is my fair share in a thing, not my power to dispose over this thing. Roman law [Recht] secures one’s own for each, but how and why someone uses what is his own is not its concern. In Rome, the use of law is private, not a matter for legal provisions. “Law has nothing to say” about usage:

      [Law] draws the boundaries for domains, but is not concerned with what happens in each domain, the relations of the property-owner to his domain, which has been bestowed on him. The absolute power exercised by the Roman master over his affairs is generally not a legal matter; it is passed over in silence, falling into law’s gap.¹⁹

      Roman law is in transition, since it associates the traditional moral justice of distribution and of the share, the definition of a right as fair share, by abstracting from citizens’ usage of their rights.

3 London

      Villey’s words immediately make clear how the various authors whose formulations have laid the groundwork for the modern form of rights (which Savigny calls “right in the subjective sense”) proceed in fundamentally different ways. As we have seen, the modern revolution of rights reverses the priority between a right and law, between right as claim and right as law. This revolutionary reversal, however, is only possible because the conception of the legal claim itself is completely reformulated. This reconception involves the relation between possession and use, the “(fact) that” and the “for what purpose” of the legal claim – the juridical and the pre- or extra-juridical.

      On the Roman view, a person’s legal status and their extra-juridical power are strictly distinguished from each other. Equal legal status consists in each person having their own, or an equal, fair share of a thing. In addition, legal equality in Rome involves the capacity for legal actions, above all, the commencement of actiones.²⁰ A rightsholder’s power or freedom over his own, in the use of his fair share, is something radically different. The power (potestas) exercised by a person over his domain is private, or to put this more precisely, it is natural, because it precedes the legal system, only existing outside of it. “Freedom, from which men are said to be free, is the natural power of doing what we each please, unless prevented by force or by law.”²¹ In Rome, “for a jurist, power is an external condition, a prejuridical concept.”²² There is no connection between legal status – the fair share, one’s own – and private power or the natural freedom to dispose over a domain that is one’s due. A clear line divides the two, separating law from the pre-juridical.

      In contrast, the juridical and the pre-juridical are linked to each other in the modern conception of rights. This is why Ockham calls right [Recht] “power,” and his successors call it “capacity,” “quality,” “competence,” or “freedom.”

Excursus: Ockham’s Defense of Poverty (Villey)

According to Michel Villey, the modern development that will shatter the Roman separation of juridical share and natural power begins with William of Ockham’s observations in defense of the Franciscan vow of poverty against the pope’s critique (though, again, this is not primarily a matter of historical fidelity, but has to do with the conceptual content of his argument).²³ The goal of the papal critique consisted in “compelling the Franciscans to accept the title of property owners – which was a scandal.”²⁴ The pope’s argument was that the Franciscan approach to poverty is self-contradictory, insofar as, on the one hand, it rejects any property, but on the other hand it also claims to be allowed to use things – food, clothing, shelter, and so forth. For a use of things that is not to be unlawful appropriation must always be based on a fair share of something (in a ius as previously defined). Contrary to their own self-conception, the Franciscans are therefore not outside the law, since in their use of things they unwittingly assume that they have a right to such things, and thus that they deserve a fair share. “The claim that the Franciscans have no rights is mere fiction;” “the claim to live outside the law is absurd.”²⁵ The possession of a right is always already presupposed in the use of a thing. Thus runs the pope’s argument, which is in complete accord with tradition.

      In contrast, Ockham argues that the legitimate (which here only means: not unlawful) use of things does not assume any property, any legal claim, indeed does not assume any right: if there is a community in which everything is held in common by all (omnia communia), then it will also be the case, in such a community, that “use of fact can be separated.”²⁶ To be able to rebut the papal objection that the Franciscan vow of poverty is self-contradictory, however, he must understand (as Villey critically observes) the concept of the legal claim in a completely different way from how it is understood in the papal objection: Ockham must introduce a fundamentally new conception of the legal claim.

      Right [le droit], in the technical sense of the term, no longer refers to the good that is justly due to something (id quod iustum est), it refers to a much narrower concept: the power that one holds over a good.²⁷

Ockham can plausibly claim that the right claimed by Franciscans in their use of things is not a fair share in something (which the papal criticism claimed was a prerequisite for any legitimate use), but right as an individual’s power: not merely a person’s power for lawful actions as they deal with something of theirs in relation to other persons, such as selling it to someone, or obtaining compensation for a loss in court. Instead, right as power to (in fact or by nature) use things (potestas licita utendi re extrinsica) is the basis and goal of every lawful action vis-à-vis other persons.²⁸ Ockham, in his defense of the Franciscan vow of poverty against the pope’s traditional legality that right [Recht] is the fair share that someone has in a thing, surreptitiously inaugurates the modern conception of rights as a claim to the power and the freedom to dispose over things (this is the grim point that Villey’s account wishes to make). Ockham thus establishes the legal basis for a reorganization of social (and economic) relations that ultimately undermined the Franciscan way of life. In the Franciscans’ attempt to establish a use of things that was outside the law, they in fact initiated a transformation of law [Recht] that, according to Villey, severed the traditional connection between right [Recht] and justice: by defining right as a claim to natural, extra-legal use.

      Giorgio Agamben has spoken of the “subtlety of Ockham’s strategy” against the papal critique, which allowed for “holding oneself both outside and before the law.”²⁹ However, while in Ockham this strategy aims at the “possibility … of pursuing an existence outside the law,”³⁰ it actually – as Villey interprets Ockham’s position in the history of law – yields a fundamentally new image of law, through which law is opened up to its outside and thereby integrates what is outside the law into law. The Franciscan “right, not to have any rights”³¹ is historically realized in the modern right [Recht] to not be right: as the right to be willing and acting outside the law [Recht]. The very same thing holds true for the modern character of rights.

      If Ockham calls right [Recht] a