Critique of Rights. Christoph Menke

or a law [Gesetz]:

A right is based on the interest which figures essentially in the justification of the statement that the right exists.⁵⁵

      The interests are part of the justification of the rights which are part of the justification of the duties.⁵⁶

      This has two different implications: the fact that a person has a specific interest is not sufficient on its own (it is only a necessary “part”) for recognizing this person’s right to that in which they have an interest. For this reason, we need an additional argument, which finds authoritative expression in laws [Gesetzen]. Rights are therefore based on interests only under laws, in a normative order. At the same time, however, the fact that a person has a specific interest is a necessary condition for (an essential part of) recognizing that person’s right. This is the crucial conceptual insight offered by interest theory – however we answer the question of utility or freedom. It entails that the normative force of rights is connected to the facticity of natural strivings that exist prior to law, and thus to the fact that persons have interests. Interests are simultaneously defined by where they are conceptually located in the grounding of rights and by their factual, empirical existence. They link rights back to facts.

      To sum all of this up: Leo Strauss has interpreted the introduction of the modern conception of rights as “the supplanting of the primacy of obligation [C.M. – which the law imposes] by the primacy of claim.” This thesis is absurd, if we understand it to mean that there cannot be legally binding claims without law [Gesetz]: rights only exist under a law. Spinoza writes “This is precisely what Paul is saying when he acknowledges that there is no sin before law is established, i.e., as long as men are considered as living under the government of nature.”⁵⁷ At the same time, however, on the modern understanding, rights are referred back to the fact of natural strivings prior to law, whose fulfillment in activities they legalize. It is therefore true of the modern character of rights that law [Gesetz] “did not create [C.M. – rights], it only authorized [them].”⁵⁸ To put this more precisely: law [Gesetz] creates rights by authorizing something that exists prior to law [vorrechtlich]. The form of the creation of rights is the legalization of the natural.

The locus of rights is paradoxical: they stand on the boundary that connects law [Recht] and what is outside the law, normativity and nature, to each other, by dividing them from each other. Law and what is outside the law are separated from each other and linked to each other in the modern character of rights. They are divided from each other in order to then link what has been divided. The modern form of rights is a paradoxical characteristic of juridical normativity: it fixes normativity and facticity in place, without resolving normativity into facticity. The normative force of a legal claim, the fact that it is binding on another, is not a consequence of a factual, naturally existing interest (it cannot be derived merely from what is already there) but it does follow upon this interest. Rights cannot only be oriented to interests, they must relate to interests, which means, in particular, that they rest on interests, their basis is the natural.

      Niklas Luhmann defines the composition of modern law in terms of “normative closure and cognitive openness.”⁵⁹ According to Luhmann, law can therefore be regarded either normatively – in which case it is regarded as closed – or cognitively – in which case it is regarded as open. This choice between alternatives misses the decisive feature in the modern character of rights. Luhmann’s thesis, which we oppose, is that “the distinction between norms and facts” in modern law “kept … early writings on the sociology of law … at a distance from other legal theory,”⁶⁰ because the “blending” of the two distinct sides is not “avoided.”⁶¹ It is in fact quite the reverse: the modern form of rights carries out the distinction of norms and facts in such a way that they are distinguished from each other and linked to each other. In this way, normativity is distinguished from and bound to facticity: rights – only – entitle us to what is natural; we can only be entitled to something natural. The normativity of rights enables, secures, and safeguards the natural. The normativity of rights makes the norm’s other – nature – into its interior, its presupposition, and thus its goal.

Notes

      1 1. Aristotle, Nicomachean Ethics, trans. by H. Rackham (Cambridge: Harvard University Press, 1934), 267 (1131a).

      2 2. Aristotle, Nicomachean Ethics, 281 (1132b).

      3 3. Aristotle, Nicomachean Ethics, 275 (1132a).

      4 4. [Tr. – translation modified] Aristotle, Nicomachean Ethics, 277 (1132a) [C.M. – my italics].

      5 5. Aristotle, Nicomachean Ethics, 279 (1132b) [C.M. – my italics].

      6 6. Aristotle, Nicomachean Ethics, 275 (1132a).

      7 7. [Tr. – translation modified] Aristotle, Nicomachean Ethics, 285 (1133a–b) [C.M. – my italics].

      8 8. Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995), 63.

      9 9. “There would be no point [ … ] in concentrating on this quantitative equality unless the annulment vindicated equality in some sense. For if the initial sets of holdings embodied only an inequality, the subsequent gain by one party at the expense of another, to the extent that it mitigated the initial inequality, would itself be just” (Weinrib, Idea of Private Law, 63). In contrast to the interpretation outlined here, Weinrib does not want to understand this insight – “of course corrective justice presupposes the existence of entitlements” (80) – to mean that the justice of restitution and exchange presupposes the justice of equitable division. On the contrary, his argument is that this contradicts the “autonomy” (which he proclaims on 34–9 of his book) of private law (79f.). For one thing, however, that presupposes what remains to be demonstrated in the first place, and second, it is not evident why the formal difference of corrective and distributive justice is not supposed to be compatible with the substantive and normative dependence of corrective equality on the justice of distribution. Weinrib’s interpretation of Aristotle’s theory of private law subscribes to the maxim that nothing exists which ought not to. The price he has to pay for this consists in his having to deny that Aristotle has any understanding at all of the entitlements presupposed in private law: this is “a troubling lacuna in Aristotle’s explication of corrective justice” (76), a missing piece that was later provided by Kant (81f.). Weinrib wants to contest the political presupposition, and nature, of private law in every possible way. He is therefore prepared to fault Aristotle for not thinking of something and, in a radical act of dehistoricization, to present Kant as the solution to Aristotle’s supposed problems with providing a logical basis for his explication.

      10 10. Cicero, De Officiis, trans. by Walter Miller (London: Heinemann, 1928), 255 (II.78).

      11 11. Cicero, De Officiis, 263 (II.85). Nevertheless, this is only one part of justice: it further requires people “to use common possessions for the common interests, private property for their own” (De Officiis, 23 [I.7]).

      12 12. Michel Villey, “Suum jus cuique tribuens,” in: Studi in onore di Pietro de Francisci (Milan: Antonino Giuffre, 1956), vol. 1, 363–71, here 365.

      13 13. Michel Villey, La formation de la pensée juridique moderne, ed. by Stéphane Rials (Paris: Quadrige/PUF, 2006), 247.

      14 14. Cicero, De Officiis, 211 (II.41–2).

      15 15. Michel Villey, Le droit roman (Paris: PUF, 1964), 20.

      16 16. G.W.F. Hegel, Phenomenology of Spirit, trans. by A.V. Miller (Oxford: Oxford University Press, 1977), 290.

      17 17. Villey, La formation de la pensée juridique moderne, 247.

      18 18. Villey, La formation de la pensée juridique moderne, 249.

      19 19. Villey, La formation de la pensée juridique moderne, 247. Roman law “refrained from providing a definition of the content of the right of ownership” (Villey, Le droit roman, 84).

      20 20.