Critique of Rights. Christoph Menke

because this striving is law’s basis (and hence its goal). Law’s basis is simultaneously its limit: law must permit the natural striving for self-preservation. The conception of legal permission thereby obtains a new meaning. For what is thereby permitted is essentially undefined, indeed is indefinable, for law: law does not permit a particular kind of striving for self-preservation in a particular sense, but permits striving for self-preservation in general, or undefined striving.

      In his argument for self-restricting the legal regulation of religion to external actions and declarations, Hobbes describes this indefinability in epistemological terms: rulers cannot “take notice of … the inward thought, and beleef of men,” since these are “the effect of the … unrevealed will, and of the power of God.”⁵¹ The indefinability of the inner is the human understanding’s inability to recognize its causality. The more radical and promising interpretation gets by without such assumptions, and conceives indefinability in practical terms – in other words, as freedom. On the question of whether “the report [of miracles] be true, or a lie,” Hobbes thus writes:

      In which question we are not every one, to make our own private reason, or conscience, but the public reason, that is, the reason of God’s supreme lieutenant, judge…. A private man has always the liberty, because thought is free, to believe or not believe in his heart those acts that have been given out for miracles…. But when it comes to confession of that faith, the private reason must submit to the public; that is to say, to God’s lieutenant.⁵²

      The self-restriction of law’s governmental power to external actions signifies nothing but the permitting of freedom: the permission to think and believe whatever one wants, whatever one deems it right to think and believe. Legal permission sets judgment free.

Freedom is predicated of thought (“because thought is free”). The reason for this and the way in which freedom is thereby understood becomes evident if we take up the perspective adopted here by Hobbes: the perspective of rule by law. On this argument, rule by law must permit that natural striving which forms its basis (and thus its goal). Thought, of which Hobbes predicates freedom, is legally permitted and therefore natural thought: “reason” (of which Hobbes speaks in the above-cited passage) that pertains to the striving for self-preservation; thinking about the natural striving for self-preservation, which everyone is occupied with in their own natural striving. Hobbes proceeds on the assumption that the striving for self-preservation occurs under natural laws [Gesetzen] that we adhere to in our reasoning. If, however, Hobbes next goes on to make clear that these “are not properly laws, but qualities,”⁵³ then this implies that the freedom of thought enjoyed in carrying out the natural striving for self-preservation is not subject to any normative laws at all: it is free (in this sense) because it is lawless – free from any kind of normativity. Spinoza concludes that the freedom of natural thought only follows “the rules determining the nature of each individual thing by which we conceive it is determined naturally to exist and to behave in a certain way”⁵⁴ – and therefore does not follow the rules of “sound reason.”⁵⁵ “But since we are here discussing the universal power or right of Nature, we cannot acknowledge any difference between desires that are engendered in us by reason and those arising from other causes.”⁵⁶ Natural thought is free precisely insofar as it is also able to be a thought without reason, indeed a thought that can be opposed to reason. The (natural) freedom of (natural) thought is the freedom to think rationally or not to think rationally. It is this freedom, the freedom of indifference between reason and unreason, “which the civil law leaves us.”⁵⁷

The full meaning of this definition becomes evident when we note the question to which it responds. It becomes evident, in particular, when we note that the question which Hobbes answers by introducing freedom of thought and belief is a question of how (not a question of whether), since it is clear that subjects have to obey the sovereign’s legal commands as regards religious matters. These commands establish which creed holds sway in a state and, consequently, how one should worship (including which reports of miracles are to be declared true). These commands of the sovereign must be obeyed, but not because subjects view them as right; the sovereign’s commands may not demand this. Human beings have established the sovereign precisely in order to authorize it to give commands that must be obeyed regardless of what subjects think of them. It does not matter why subjects obey such commands: they neither require, nor do they ever expect, an understanding of their correctness. Laws [Gesetzen] leave the bases for complying with them up to us. The modern sovereign’s resignation from the inner lives of its subjects, to which it has no access, follows from its realization that it cannot want their inner compliance at all, because of what the sovereign is – instituted and authorized by those over whom it rules. In recalling its basis in the will of its (future) subjects, the sovereign, in its laws, recognizes its subjects’ freedom to want what it wants or not to want this.

      This is completely opposed to the Greek idea of education in law, the view that law exists in order to influence its bases in an external manner that cancels itself out and to engender a moral disposition of having the capacity for the right bases. In its operation, Roman law breaks with this idea by considering morality and immorality, sound reason and merely natural striving to be equally possible. Law in Rome concludes from this that its externality is not a temporary expedient in the educational process that is later dispensed with, but something which is just as impossible to get rid of as the corruption of human nature, which law must rule with its commands. Even here, therefore, law still judges in a moral sense – law imposes sound reason against merely natural striving – but it no longer proceeds in a moral manner since it no longer educates us to reason soundly, but instead rules. With the modern form of rights, in contrast, law [Recht] does not simply resign itself to the possibility that it might be internally repudiated and view this as ineradicable (and for this very reason in need of commands). Instead, law allows and indeed enables it – as possibility. The externality of law (which is an essential part of its conception) thereby has its meaning radically transformed: it has become an externality that is opposed to an internality whose inaccessibility to law signifies freedom from law.

Excursus: Legal Choice (Kant)

Kant’s conception of legality is defined by the claim that there is an internal connection between law’s externality and permitting freedom. Legality and morality are two forms of lawgiving, which Kant distinguishes “with respect to the incentive”: on the one hand, there is “The mere conformity or non-conformity of an action with law, irrespective of the incentive to it,” and on the other hand, there is “that conformity in which the Idea of duty arising from the law is also the incentive to the action.”⁵⁸ Kant also formulates this distinction as follows: “Ethical lawgiving (even if the duties might be external) is that which cannot be external; juridical lawgiving is that which can also be external.”⁵⁹ Since juridical lawgiving stipulates not why but how we are supposed to act, it only regulates “the external and indeed practical relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other.”⁶⁰ Juridical lawgiving does not provide any reasons for why we are supposed to act in such ways. This can be formulated in positive terms: since juridical lawgiving only considers external actions, and not the inner reasons for such actions, and because actions, viewed in this way, are acts not of the will (of the capacity for desire, “whose inner determining ground … lies within the subject’s reason”), but of choice (of “the capacity for doing or refraining from doing as one pleases”),⁶¹ the restriction of juridical lawgiving to actions entails setting choice free, within legal limits. “No account at all is taken of the matter of choice, that is, of the end…” but right judges “the form in the relation of choice on the part of both, insofar as choice is regarded merely as free, and whether the action of one can be united with the freedom of the other in accordance with a universal law.”⁶² The “universal principle of right” is a consequence of the externality of juridical lawgiving precisely because “Any action is right if it can coexist with everyone’s