Critique of Rights. Christoph Menke

subjects to refuse such a command – although determining what is just and unjust is up to the sovereign alone.

      This insight into the structure of sovereignty has two implications for law [Recht], the most important medium of authority [Herrschaft]. First, law is defined negatively, as a being-free-to or a being-permitted-to: law can never forbid subjects from striving for their self-preservation, which it must always allow or accept. This is the other side of the positive authorization of the natural by the modern character of rights, which we have already examined (see chapter 2). The internalization of the natural in law, the opening of law to the natural, is here understood to mean that the natural power of self-preservation forms the goal of law: law is intended to enable the interest of subjects, to enable their striving for self-preservation. This obviously includes the power to define and restrict their interest (so that everyone has equal opportunity). At the same time, however, it should now be evident that legal power has its fundamental limit, its unreachable counterpart, in the interest or striving for self-preservation: it must assume that this striving is a fact and allow it.

      Second, this means that the legal system distinguishes between the striving for self-preservation – which is always allowed – and its fulfillment – which law [Recht] must always restrict. The sovereign may not demand that a human being violate his own law [Gesetz], the nature of his striving or volition – that he turn his will against himself or turn himself against his will “in such a way that he ceases to be a human being.”⁴² This means, however, nothing less than that the sovereign should not interfere at all in its subjects’ volition if it does not wish to end up contradicting itself, to end up contradicting why it was established and its justification. What the sovereign’s subjects wish and strive for, and how they do this, is their concern, since it is a natural matter – the kind of natural fact that constitutes the basis because it is the starting point for the creation of the sovereign. The natural, the striving for self-preservation, which the sovereign must authorize because he is authorized by it, therefore becomes internality, which systematically eludes his rule. The interior of the sovereign’s subjects is external to law and therefore law must remain external to it. Permission of the natural signifies law’s self-restriction in the face of internality and thereby its restriction of itself to exteriority.

Hobbes has very clearly formulated the distinction between a legally governable exterior and a legally ungovernable interior in religious matters (whose conception in the modern era results from this distinction). Just as only the sovereign can determine what is just or unjust (since there is no justice and no normativity prior to the contract that establishes it), so too only the sovereign can say “what is, or what is not the Word of God” in a “Christian Common-wealth.”

      From whence may be concluded this first point, that they to whom God hath not spoken immediately, are to receive the positive commandments of God, from their Soveraign … And consequently in every Common-wealth, they who have no supernaturall Revelation to the contrary, ought to obey the laws of their own Soveraign, in the externall acts and profession of Religion. As for the inward thought, and beleef of men, which humane Governours can take no notice of, (for God onely knoweth the heart) they are not voluntary, nor the effect of the laws, but of the unrevealed will, and of the power of God; and consequently fall not under obligation.⁴³

      This line of thought clearly aims to distinguish the inner (thought or belief) from the outer (actions and declarations). The sovereign must regulate the latter and prescribe or forbid, in order to fulfill the goal that forms its raison d’être: protection, peace, defending everyone. Conversely, the sovereign is not supposed to regulate the former, to impose or forbid thought or belief, because he cannot do this. Deviating from the architecture of his theory, Hobbes nevertheless argues, on epistemological grounds, that the sovereign cannot do this (because thought or belief cannot be perceived by a human ruler), which he goes on to give a theological twist (because thought or belief can only be perceived by a divine ruler).⁴⁴ Yet the actual Hobbesian argument for the claim that the sovereign cannot and should not regulate his subjects’ internality, their thoughts and beliefs, is precisely the same one that he makes for the claim that the sovereign must regulate their exteriority, their actions and declarations. The sovereign’s incapacity is not epistemological, but a matter of legitimacy, and thus essential. A consequence of this is that legitimacy, and thereby the essence of the sovereign, consists in the sovereign’s legalization of the extra-legal, which it must simultaneously preserve and protect (in positive terms) and leave alone and put up with (in negative terms).

      In his study of Hobbes’ Leviathan, with its juxtaposition of anti-Semitic resentment and brilliant insights, Carl Schmitt has called the divergence between a legally regulated exterior and a legally unregulated interior the “seed of death” for the sovereign as conceived by Hobbes himself in the image of the Leviathan.⁴⁵ As soon as this divergence occurs, all it takes, according to Schmitt, is “a small intellectual switch emanating from the nature of Jewish life”⁴⁶ to bring about the bourgeois liberal constitutional state:

Only a few years after the appearance of the Leviathan, a liberal Jew noticed the barely visible crack in the theoretical justification of the sovereign state. In it he immediately recognized the telling inroad of modern liberalism, which would allow Hobbes’ postulation of the relation between external and internal, public and private, to be inverted into its converse. Spinoza accomplished the inversion in the famous Chapter 19 of his Tractatus Theologico-Politicus, which appeared in 1670.⁴⁷

Schmitt’s account of the consequences of Hobbes’ restriction of sovereign commands to the external actions of its subjects is completely right: the Hobbesian sovereign is ultimately undone by this restriction. To put this more precisely: with the Hobbesian sovereign’s self-restriction to the external, the sovereign is deprived of the power to administer the rule of law over corrupt nature. This was the Roman view, which Hobbes wishes to uphold but no longer can, according to Schmitt. The Romans abandoned the Greek idea of moral education, in which law’s externality only seems to be a transitional moment. For Schmitt, this image of moral paideia is a later projection of political Romanticism. In contrast to the Greek idea of education in law, Roman law accepts the externality of law as an inevitable condition, since it corresponds to the reality of a corrupt nature. The fact that law is external to the human being’s natural reality here means that law rules over those against whom force must be used. Understood in Roman terms, the externality of law is enforced as domination [Herrschaft]. A sovereign who represents political unity with his person is required for this imperative conception of law. It is only as a sovereign person that the legal system is able to rule over the natural.⁴⁸ For Schmitt, this is Hobbes’ dilemma, the contradiction inherent in his thinking: first, with the image of the leviathan, he evokes a personal sovereign, able to dominate mere nature, and yet, at the same time, with the sovereign’s self-restriction to only ruling over its subjects’ external actions, Hobbes has planted its “seed of death.” For in recognizing the distinction of inner and outer, willing and acting, the sovereign no longer represents political unity. He no longer rules over the naturalness of human beings, but legalizes their natural strivings. This is now the only way for him to acquire his authority. The Hobbesian sovereign, as established or simply agreed to, is a sovereign who restricts himself, a sovereign who has already resigned when it comes into office. Such a sovereign experiences a “metamorphosis from ‘Realism’ to ‘Nominalism’” and what Ernst Kantorowicz observed of Shakespeare’s Richard II holds true of him: “The Universal called ‘Kingship’ begins to disintegrate; its transcendental ‘Reality’, its objective truth and god-like existence, so brilliant shortly before, pales into a nothing, a nomen.”⁴⁹ Instead of dominating the natural, it is accepted. The resigned consequence of law’s externality is its own self-externalization. The sway of sovereign law, by its own inner logic, has become law whose essence is permission or authorization [Befugnis].⁵⁰

Permitting Freedom

      The self-restriction