Critique of Rights. Christoph Menke

in this volume.

      53 53. See Markus S. Stepanians, “Einleitung: ‘Rights is a term that drips confusion’,” in: Stepanians (ed.), Individuelle Rechte (Paderborn: mentis, 2007), 7–33, esp. 23ff., with reference to Donald Neil MacCormick, “Rechte in der Gesetzgebung,” in: Stepanians, Individuelle Rechte, 164–83. For what follows, see also the overview in Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), 79–94.

      54 54. Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986), 171; cf. Joel Feinberg, “The Nature and Value of Rights,” in: Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press 1980), 143–58, here 148f.

      55 55. Raz, Morality of Freedom, 169.

      56 56. Raz, Morality of Freedom, 181. To state this in greater detail: “Rights are the grounds of duties in the sense that one way of justifying holding a person to be subject to a duty is that this serves the interest on which another’s right is based. Regarded from the opposite perspective the fact that rights are sufficient to ground duties limits the rights one has. Only where one’s interest is a reason for another to behave in a way which protects or promotes it, and only when this reason has the peremptory character of a duty, and, finally, only when the duty is for conduct which makes a significant difference for the promotion or protection of that interest does the interest give rise to a right” (183).

      57 57. Spinoza, Theological-Political Treatise, 196.

      58 58. Villey, “La genèse du droit subjectif chez Guillaume d’Occam,” 101 (with regard to property rights): “But such a law did not create property, it only authorized it.”

      59 59. Niklas Luhmann, Law as a Social System, trans. by Klaus A. Ziegert (Oxford: Oxford University Press, 2004), 111.

      60 60. Luhmann, Law as a Social System, 86. This can also be seen as the point of Luhmann’s own concept of the self-reflection of law; for more on this, see part II in this volume.

      61 61. Luhmann, Law as a Social System, 113.

3 INNER CHOICE

      The first axis around which the distinction of three historical legal systems – Athens, Rome, London – revolves is the legal claim’s essential character (by which one person is able to obligate another). In all three regimes, law gives rise to individual claims in two fundamentally different ways: by dividing what is common or by legalizing the natural. This immediately involves a second axis of distinction, however. It concerns the essence of juridical governance – the meaning of the “legality” [Gesetzlichkeit] that defines law: why, to what end, and over what does law rule in giving rise to claims? In these three regimes, how does law understand the fact that it must rule, in order to safeguard claims? And how does it understand the fact that the claims of individuals against each other only exist under the rule of law?

From Paideia to Sovereignty

Law rules all: legal regulations are based on the capacity for coercion. Such regulations bear the threat of coercion. The oldest doctrine of law is that the relation to law must remain a relation of “awe” [Ehrfurcht], indeed one of “fear” [Furcht], so that law can be the institution of justice.¹ In the Eumenides, Aeschylus formulates it as the insight that a right which is only established to express the equality of citizens (and which is thus distinguished from personal rule [Herrschaft]) requires subjection to the threatening ruling power that everyone wields over the individual. Athena thus proposes a new system of law for her city since it will closely fuse equality and rule. For “But who that traineth not his heart in fear, be it State or be it man, is like in the future to reverence justice as heretofore? Approve thou not a life ungoverned nor one subjected to a tyrant’s sway.”² Law holds sway [herrscht], it binds its rules to the capacity for coercion, since it reckons with human beings who are not lawful – who do not do, of their own accord, what law must hence prescribe for them. This is true of all law, but in a fundamentally different sense for each of the three legal systems.

       1 Athens

      Aristotle examines law’s mode of being from the perspective of the virtues, namely by examining the conduct of the person administering justice. Justice as equality (which we have already considered), and thus the virtue of seeing that each person receives his own, is justice “in the particular sense,” since it is only “a part of universal justice.”³ Here, justice means realizing equality in the distribution within a community and in the dealings of individuals with each other, and therefore giving each his own. Justice in the universal sense is different from this. In its universal sense, it is a special regard not merely for equality, but for doing what one is supposed to: doing what is right. Laws [Gesetzen], however, stipulate what the right thing to do is. Justice in general, or “universal justice,” is thus the virtue of obeying laws – the virtue of the “lawful.”

      Aristotle also says that the universal justice of lawfulness is “perfect virtue,”⁴ since it is doing what is right. To exercise the virtue of lawfulness, and therefore to fulfill the requirements of law [Recht], simply means to enact the virtues, because they are precisely what the laws require: doing what is virtuous. As Werner Jaeger summarizes this break with the agonal, heroic definition of the virtues, sealed by Aristotle’s conception of lawfulness, virtue consists “in … [the] voluntary submission to the new authority of the law.”⁵ At the same time, however, Aristotle limits the scope of this concept, by arguing that justice as lawfulness is “perfect virtue, though with a qualification.”⁶ This has two meanings.

      The first meaning is that lawfulness is “perfect virtue … [insofar as] it is displayed toward others.”⁷ The virtue of lawfulness is simply a matter of the relation to other persons. This indeed narrows the domain of lawfulness:

      This is why Justice is often thought to be the chief of the virtues, and more sublime “than the evening or the morning star”; and we have the proverb –

      In Justice is all Virtue found in sum.

And Justice is perfect virtue because it is the practice of perfect virtue; and perfect in a special degree, because its possessor can practice his virtue towards others and not merely by himself.⁸

      The virtue of lawfulness, although (or precisely because) it is not “perfect virtue,” can be viewed as the highest virtue, since it consists in enacting virtue not merely in “one’s own affairs” but “toward others.” Conversely, this is called the virtue of lawfulness, and thus of obeying the law, because its rules simply express how to behave virtuously in our conduct toward others. “Laws are designed to regulate and order relations between human beings: no more and no less.”⁹

      The claim that the virtue of lawfulness is not “perfect virtue,” however, has another, second meaning. This is evident in how it stipulates laws [Gesetzen] and therefore also in what it alone can stipulate:

      the law prescribes … the conduct of a brave man, for example not to desert one’s post, not to run away, not to throw down one’s arms; that of a temperate man, for example not to commit adultery or outrage; that of a gentle man, for example not to strike, not to speak evil; and so with actions exemplifying the rest of the virtues and vices.¹⁰

      Law stipulates virtuous deeds – and therefore does not stipulate the disposition that is virtue. Justice as lawfulness and (perfect) virtue are “the same quality of mind, but their essence is different.” Only “what as displayed in relation to others is Justice, as being simply a disposition of a certain kind is Virtue.”¹¹ The virtue of lawfulness is thus not “perfect virtue” because it can only refer to virtuous deeds, and this is why we can