Critique of Rights. Christoph Menke

law.”⁶³ Of course, another consequence is that juridical lawgiving can never require “that this principle of all maxims be itself in turn my maxim”:⁶⁴ if right leaves the basis for action up to us, then it also leaves up to us the basis for those actions that we are required to do in order to comply with it.

Kant proceeds to give an emphatic interpretation of legally permitted choice: it forms a person’s “innate” right to the freedom “of being his own master (sui juris).”⁶⁵ Equality, which is likewise innate, follows immediately from this single basic right to choice, as does the presumption of innocence, as well as the authorization “to do to others anything that does not in itself diminish what is theirs” – including “such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true and sincere or untrue and insincere (veriloquium aut faliloquium); for it is entirely up to them whether they want to believe him or not.”⁶⁶ The legally permitted “inner” sphere, which Hobbes restricts to thoughts and beliefs, includes for Kant all utterances that do not “harm” anyone. Right must leave it up to our choice, and must therefore leave our choice up to us not merely in an invisible and inaccessible inner sphere, as with Hobbes, but also in everything we say that does not harm others. This decisive step beyond Hobbes, however, follows from the logic of Hobbes’ own argument: the claim that right cannot concern itself with reasons that form the basis for action. If a person can bend the knee while engaged in religious worship, then one person can tell another person something true (or untrue). When lawgiving (in the more recent, modern sense) is external, there cannot be a legal prohibition on lying.⁶⁷ The only thing that is legally relevant is how “their actions, as facts, can have (direct or indirect) influence on each other.”⁶⁸ In other words, what counts is whether such an influence “harms” others because it transgresses the limits of equality. In this case, however, as Kant turns Hobbes’ thoughts against Hobbes himself, we would be unable to regulate not merely belief but also profession of faith, not merely thoughts but also declaring such thoughts – insofar as such actions do not harm others in the specified manner. Legal obligation must remain external: it is the external regulation of the merely external, and thus the setting free of everything not external. This is the basis for the Kantian right to freedom. It is not “innate” because it results from human nature, but because it is a consequence of the conception of right as external lawgiving.

      What, however, is the basis for the externality of juridical lawgiving, and in what does it consist? Kant explains such externality as follows: “No external lawgiving can bring about someone’s setting an end for himself (because this is an internal act of the mind).”⁶⁹ Right must set internality free, because it gives laws in an external manner. Our review of the Greek conception of educative law [Recht] and the Roman conception of law as dominion [Herrschaft] has revealed that this conclusion is incorrect – or circular. Setting internality free is only a consequence of law’s externality if we have already surreptitiously placed it there. Law’s externality can also be understood in a completely different way: as educative or oppressive, for instance. Law’s externality, which defines its form in general, law as such, is therefore not the basis for the distinctive way in which the modern form of rights permits freedom: the form of modern rights is not a – simple or direct – consequence of law’s form. Hence the question of why modern law construes and establishes its externality so as to permit freedom of choice. This question remains unanswered in Kant’s conception of legality; indeed, it is not even posed. We need a different conception of legality, as the specific feature of modern law, to grasp its connection with the modern character of rights.

      We will call this different understanding of modern legality the selfreflection of law. The relation between the form of law and the form of modern rights is not immediate, but mediated: it is mediated by law’s self-reflection.⁷⁰

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      Modern law rules by restricting itself. It rules in such a way that, with its regulations, it validates the natural will’s choice. It validates the will prior to law’s regulation: this is the second definition of the modern character of rights. In substance (in performative or functional terms),⁷¹ it is opposed to the first definition – the first enables, the second permits – but it is a direct consequence of that definition. Permission is the other, negative side of how law positively enables the natural.

      Spinoza formulates the juridical setting free of internality as the maxim that law may not rule in such a way that those who are ruled thereby cease to be human beings.⁷² Strauss and Schmitt follow him when they interpret the resignation of the sovereign in Hobbes’ theory as the birth of liberalism – thus taking liberalism at face value. In this case, setting the natural free from legal rule means setting the human being free from state rule: to understand the term “liberal” in such terms is to view law’s self-restriction (to the external as opposed to the internal) as the liberation of the individual. This is a misunderstanding of both legal permission and the liberal form of governance, however. The modern character of rights does not set the individual free from law, but sets internality, which cannot be regulated, free from legally regulated externality. The modern character of rights establishes the difference of inner and outer. It establishes this difference, however, in the individual (who thereby becomes a subject). Modern law’s externality becomes the modern subject’s internality: the modern subject must exercise law’s external governance of the natural will in (and by) itself. The modern subject must externally rule itself.

      Modern law’s break with Greek paideia does not therefore mean – as a simple liberal interpretation supposes – freeing the individual from the claims of legal regulation. It never entails that law has no normative claim on the being or ontology of the legal subject. Now, however, this claim no longer means that the individual develops the disposition of justice and becomes moral. The claim of modern law on the subject now amounts to the claim that the subject will become able to internally maintain external rule over the natural – over itself as natural. It also entails that the subject acquire power over itself to split itself into legal volition and natural volition, so that its legal volition simultaneously restricts and sets its natural volition free. In other words, modern law no longer educates, but disciplines.⁷³ It does not transform the individual’s nature, which is governed by law [Gesetz], into a virtuous disposition, but produces the subject of self-discipline: the subject who can itself govern its own nature.

Notes

      1 1. Aeschylus, “Eumenides,” line 691, in: Aeschylus, vol. II (London: William Heinemann, 1926), 339. Cf. Christoph Menke, Law and Violence: Christoph Menke in Dialogue, trans. by Gerrit Jackson (Manchester: Manchester University Press, 2018), 17–22.

      2 2. Aeschylus, “Eumenides,” 321 (lines 522–7).

      3 3. Aristotle, Nicomachean Ethics, trans. by H. Rackham (Cambridge: Harvard University Press, 1934), 263 (book V, 1130b) [C.M. – my italics].

      4 4. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).

      5 5. Werner Jaeger, Paideia: The Ideals of Greek Culture, vol. I, trans. by Gilbert Highet (Oxford: Oxford University Press, 1945), 113.

      6 6. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).

      7 7. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).

      8 8. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).

      9 9. Pierre Aubenque, “La loi selon Aristote,” Archives de philosophie du droit, 25 (1980), 147–57, here 150.

      10 10. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).

      11 11. Aristotle, Nicomachean Ethics, 261 (book V, 1130a). For this reason, Michel Villey speaks of Aristotle’s distinction between law and “morality” and therefore of the “autonomy” of law (Villey, La formation de la pensée juridique moderne, ed. by Stéphane Rials [Paris: Quadrige/PUF, 2006], 84f.).

      12 12. Aristotle, Nicomachean Ethics, 73 (book II, 1103a–b).

      13 13.