Critique of Rights. Christoph Menke

a terminological innovation, but a conceptual revolution, because the two categories that were separated by the Romans – legal status and pre-juridical, natural power – are merged into one paradoxical complex. If, since Ockham, the right that someone has is characterized as their power, then the legal claim that such a person has on another is thus determined by the individual’s pre-juridical, private use of what is his own, in carrying out his natural activities. The concepts by which the legal claim has been explained since Ockham – power, capability, quality, competence, or freedom – are characterized by a constitutive ambiguity or bipolarity. They connect what was kept apart in Roman law: the legal and the extra-legal, legal validity and private or natural use. Claim can only be defined as power because power, conversely, has become “an ambiguous term,” as Leo Strauss summarized this fundamental change with reference to Hobbes: “It stands for potentia, on the one hand, and for potestas (or jus or dominium), on the other. It means both ‘physical’ power and ‘legal’ power. The ambiguity is essential.”³² The power that from this time forward is understood to be right as claim is the legal power to exercise pre-legal power.

According to Villey, this alteration of the concept that Ockham unwittingly proposed in his defense of Franciscan poverty is ratified by seventeenth-century natural law, when it conceives rights created by order-establishing contracts (initially, therefore, the rights of the sovereign and then, in the exercise of these sovereign rights, the rights of the subject in Ius Civile or Right Civil)³³ on the basis of natural rights. On Hobbes’ view, natural right consists in “the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life.”³⁴ As Spinoza puts it, “each individual thing has the sovereign right to do everything that it can do, or the right of each thing extends so far as its determined power extends.”³⁵ Every creature is naturally entitled to take “anything that he believes useful to himself,” in which he therefore sees the preservation of his existence:

      And since it is the supreme law of nature that each thing strives to persist in its own state so far as it can, taking no account of another’s circumstances but only of its own, it follows that each individual thing has a sovereign right to do this, i.e. (as I said) to exist and to behave as it is naturally determined to behave.³⁶

      In the state of nature, talk of a “right” to the exercise of power for self-preservation is obviously only meant in a negative sense, because no one else has a right, opposed to mine, to hinder the exercise of my power. There are no normative obligations here – only external hindrances, including the power of others – that could be invoked against my right to, and therefore against the exercise of my power for, self-preservation, at my own discretion. For normative obligations are only present when, in exercising the natural right to self-preservation, the contract that establishes society includes a limitation on, and therefore defines the purpose of, this unlimited right.

      Because, however, this contract, which establishes society and which simultaneously creates normativity and sovereignty, occurs in each individual’s exercise of natural right, and therefore because it is based on securing the natural power for self-preservation, this also remains its goal:

      The Final Cause, End, or Designe of men, (who naturally love Liberty, and Dominion over others,) in the introduction of that restraint upon themselves, (in which wee see them live in Commonwealths,) is the foresight of their own preservation, and of a more contented life thereby.³⁷

Obviously, the natural right to self-preservation cannot yield a counter-right or opposed right against the sovereign. Yet there is no need for this, either. For the laws [Gesetzen] that the sovereign enacts, according to his “sovereign law and right” and thus according to his own conception,³⁸ can only be a matter of that very power of self-preservation that constitutes the content of natural right. Hobbes expresses this in an awkward manner, in a negative way, when he writes that “The Liberty of a Subject, lyeth therefore only in those things, which in regulating their actions, the Soveraign hath praetermitted.”³⁹

      He then provides a list of examples, however: “such as is the Liberty to buy, and sell, and otherwise contract with one another; to choose their own aboad, their own diet, their own trade of life, and institute their children as they themselves think fit; & the like” – including freedom of faith and thought, insofar as they remain “inner.”⁴⁰ The Hobbesian sovereign safeguards bourgeois civil or private right, whose central line of thought was formulated by Spinoza:

      We can mean nothing by the civil right of the citizen other than the freedom of each person to conserve themselves in their own condition, which is determined by the edicts of the sovereign power and protected by its authority alone.⁴¹

      Private right, which is now centered on property,⁴² is thus nothing but a transformed natural right: natural right that has been limited by law and is thereby secured; a power for natural self-preservation that is limited by law and thereby secured. The conceptual link between right (or claim) and power remains in force even for the categorical break at the state’s contractual foundation. Natural power is the content of rights safeguarded by the state. The rights that citizens of a state have vis-à-vis each other have a natural content. The natural rights established in a state have the same content – which is not to say, of course, that they have the same scope – as natural rights. The pre-juridical state of nature persists in the juridical state in the form of bourgeois rights. Indeed, the pre-juridical state of nature is validated in the juridical state. The safeguarding of the pre- and extra-juridical, and therefore of the natural, becomes the basic definition of law.

Above all else, the break with tradition made by the modern form of rights thus consists in what Roman law passed over in silence; what, in Rome, falls into the “gaps of law” (Villey): pre-juridical private or natural activity now becomes something which law talks about in order to enable such activity or to safeguard it, and therefore truly becomes a legal matter, the goal of law. A juridically entitled claim that obligates others is a claim to what is non-juridical, indeed to what is pre-juridical, to the natural. What, in Rome, was outside the law (things and the ways in which they were used) now becomes its essential content: what is outside of law becomes inside, indeed becomes the heart and soul of law. The modern form of rights inscribes the natural and thereby the pre-juridical into law.

      Modernity calls a right a claim or a power because it is the claim to realize claims, the power to exercise power. Rights are (juridical) claims to (natural) claims, the juridical authorization of natural power.

Right to the Extra-Juridical

      We now begin to see why the distinction between the two usages of the term “right” [Recht] – right as law [Gesetz] and right as claim – is so crucially important for legal thought on its way to modernity. Since Ockham, right has been defined in a new way. This does not simply consist in the insight that we should distinguish between legal claim and juridical law, because there is at least one type of laws whose purpose is to define claims. This insight is as old as the institution of private or civil law [Privat- oder Zivilrechts], since we are here concerned with claims that one person is entitled to make vis-à-vis another person under a law [Gesetz] that is valid for both. In making the distinction between legal claim and juridical law, modern theory since Ockham has instead defined the legal claim, as well as how claim and law interact, in a fundamentally new way. Indeed, it has fundamentally redefined how law’s [Rechts] normativity is to be understood in general.

      In Athens, as in Rome, “a right” indicates a claim that one person has over against another as regards his own fair share in some matter. As in Athens, this fair share can be understood to mean that, in exchange for their own work, a person receives a share in another’s work that is proportionally commensurate to the politically determined significance of their respective work and activity for the community. Alternatively, as in Rome, the fair share can be understood to mean that both persons are free citizens who are equal to each other, insofar