Critique of Rights. Christoph Menke

race of mankind can survive, nor can nature or the world itself.”³⁰ From law’s [Recht] non-philosophical perspective, a commanding externality is unavoidable, because natural reason is absent by nature, because the human being’s deviation from natural reason has become second nature:

The justice of which I speak is natural, but … such is the corruption of bad habits [corruptelam malae consuetudinis] that it extinguishes what I may call the sparks given by nature, and that contrary vices arise and become established.³¹

      life is sought because it keeps us in the state in which we were born.³²

      Because the merely natural striving for self-preservation has taken the place of natural reason and corrupted it, a law that commands is necessary. While philosophy spreads the view that “justice is desirable on its own account [per se],”³³ law which no longer educates but commands accepts the striving for self-preservation as a given. Natural law’s surpassing of political paideia, which based law on the rational nature of human beings instead of placing it under community control, yields the conception of a right that, by externally commanding, creates a non-juridical, non-lawful nature that is opposed to it.

      Human nature is at the same time freed from moral teleology, since, in Rome, law can no longer be legitimated by claiming that its coercion is neutralized, insofar as it is educative. It is therefore freed because law here no longer fulfills the task of education in the virtues, indeed entirely renounces this task and the strictness of its rules. Law’s overt domination has anthropological implications. If the lawfulness of law is inscribed into a teleology of education, human nature appears to be in principle capable of morality, indeed to aim for it. Educative law’s conception of nature is teleological: the natural human being to whom the legal rule, as it has been legally established, refers is someone who has yet to become virtuous or to be made virtuous, and is therefore the virtuous human being in the imperfect mode of having a capacity that is not yet developed enough to be actualized. Roman law’s severing of the teleological connection between nature (as disposition) and virtue (as goal) in the operation of its commands (or more precisely: its excluding virtue from law and delegating it to philosophy) also means that it is no longer able to explain their relation by referring to the ontological hierarchy of possibility and actuality. From law’s perspective, and in terms of how it operates, nature and morality, self-preservation and virtue, have the same ontological status: they are both equally possible. For Roman law, virtue becomes merely one possibility – and the natural inclination to self-preservation becomes another possibility. Both the “right reason” of virtue and the natural “mental error”³⁴ of self-preservation are equally possible.

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Faced with a striving for self-preservation that had become a second, corrupt nature, the only choice left for Roman law was to command by giving orders and to rely on the achievement of education, which takes place not in and through law, but somewhere else and in some other way. Law and morality are different; they operate in distinct ways, without being opposed to each other. This is why, on the one hand, law is the merely external rule of “right reason” over corrupt nature’s errors in judgment, but does not ensure the normative “choice” of reason over nature in the educative transformation of nature into reason. And, on the other hand, this is why the merely external rule of law over nature is no problem. If asked to justify itself, law [Recht] can certainly no longer refer to its educational goals – it has lost the right [Recht] to do so here. It can, however, point to philosophy, the virtuous human being’s “parent and teacher,” which de-problematizes what is problematic in law – since all establishment is a problem.

      The modern sovereign, who has been created by contractual appointment, is no longer able to establish: its dominion is nothing more than its commands, including legal rules. To be sure, its dominion is “absolute” or “unlimited,” because “Sovereign Power … is as great, as possibly men can be imagined to make it.”³⁵ This is precisely because the human beings whom it rules have made it, however; because it is the expression of a “skill,” which “consisteth in certain Rules, as doth Arithmetique and Geometry; not (as Tennis-play) on Practise onely.”³⁶ Using this skill, human beings have made the sovereign itself, and because they have made it, because they are its “authors,” anything the sovereign does by virtue of its authority cannot be an injustice against them, and is therefore always justified. A sovereign only appears external to its subjects, merely establishing and coercing, if they forget its basis, and therefore if they forget themselves, their act of establishing it. The sovereign’s power over its subjects, exercised in establishing and administering law, is unlimited: the sovereign may do what it likes, precisely because its authority is not its own (just as the sovereign is not its own author, so too its authority is conferred on it).

The sovereign, however, may only do what it likes in conformity with the goal or “end” that it is there to accomplish: “the Peace and Defence of them all.” “The end of Obedience [C.M. – and thus of sovereignty] is Protection.”³⁷ This goal of the state does not grant the individual any right against the state: the fact that the state’s goal is individual self-preservation defines the form, and not the content, of its sovereignty. For only the sovereign’s decision can determine the meaning of “protection” and “self-preservation,” and therefore determine how one is to safeguard self-preservation. (And this, too, again follows from the state’s goal: we cannot ensure the protection of each person if everyone wants to define what protection means for themselves.³⁸) In making such a decision, the sovereign is wisely oriented to familiar anthropological facts such as “natural timorousnesse” and exercising “discretion.”³⁹ The exercise of sovereign rights has not merely pragmatic but also logical conceptual limits – and therefore limits that follow from the formal definition of sovereignty, due to its purpose: protection. There are limits to what the sovereign may do because, according to the concept of sovereignty, there are some things the sovereign cannot do.

      This includes all actions in which a human being is opposed to himself:

      If the Soveraign command a man (though justly condemned,) to kill, wound, or mayme himselfe; or not to resist those that assault him; or to abstain from the use of food, ayre, medicine, or any other thing, without which he cannot live; yet hath that man the Liberty to disobey.

      If a man be interrogated by the Sovereign, or his Authority, concerning a crime done by himselfe, he is not bound (without assurance of Pardon) to confesse it; because no man (as I have shewn in the same Chapter) can be obliged by Covenant to accuse himselfe.

      Again, the Consent of a Subject to Soveraign Power, is contained in these words, I Authorise, or take upon me, all his actions; in which there is no restriction at all, of his own former naturall Liberty: For by allowing him to kill me, I am not bound to kill my selfe when he commands me. ’Tis one thing to say, Kill me, or my fellow, if you please; another thing to say, I will kill my selfe, or my fellow. It followeth therefore, that No man is bound by the words themselves, either to kill himselfe, or any other man.⁴⁰

The variety of different cases that Hobbes enumerates (actions that the sovereign cannot require of us) share one basic feature: the sovereign cannot require a subject to perform an action that assumes or expresses an intention opposed to that subject’s own striving for self-preservation. The sovereign may not prohibit its subjects from striving for their self-preservation. For if the sovereign were to do so, it would thereby demand that its subjects violate the first law [Gesetz] of nature, according to which “a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same.”⁴¹ The fact that the sovereign cannot forbid the striving for self-preservation therefore does not imply that it is unable to forbid such a thing (for instance, because, in contrast to the Greek model, it has lost the power to educate). Instead, the implication is that the sovereign cannot wish to do so: this is not a question of efficacy, but of the sovereign’s essence, and thus of its existence (which is owed precisely to the laws of nature). The sovereign cannot forbid its subjects from