Critique of Rights. Christoph Menke

of the Natural

      Here we find ourselves in the “Copernican” moment of the history of the science of law, at the boundary between two worlds. A new social order is born, whose nucleus will become an individual right that is developed entirely from the concept of potestas, elevated to the dignity of a right.¹

      Modern legal theory and philosophy of law were the first to speak of rights that belong to the individual and which the individual can exercise for his or her own ends. For this reason, rights here are also first characterized as a person’s property, endowment, or capacity. It is only at this point that talk of “subjective” or “individual” rights could flourish. At the same time, rights are an essential way of formally defining private or civil law. Rights are primarily defined as claims that enable one person to impose an obligation on another person. The form of rights is therefore as old as the institution of civil law: they have existed ever since there were contractually regulated exchange relations. Both of these observations must be borne in mind at the same time. Together, they define the historicity of rights: rights are a form that can only be understood in historical terms.

We are concerned with the modern form of rights. This modern form cannot be understood by merely considering the continual formulations expressed by civil law regarding the normativity of exchange relationships that, beyond mere family arrangements, pervade all societies: the modern form of rights alters social exchange relationships so fundamentally that no concept of their normative regulation – obligation, freedom, equality, authority [Herrschaft] – is able to retain its traditional meaning. Nor can the modern form of rights be understood by attempting to derive it directly from the basic concept of modernity’s normative order, from the concept of the self-determining, autonomous subject: the modern form of rights does not exist because there are autonomous subjects, but autonomous subjects exist because the modern form of rights does. The modern form of rights results from a radical transformation of law. This transformation is radical because it concerns the meaning of law. With the modern form of rights, the concept of law, indeed the concept of normativity, acquires a new, fundamentally different meaning. The transformation in the conception of rights, which were traditionally expressed in terms of private law, thus does not remain restricted to this domain: “law” as such thereby comes to mean something else, and hence rights in their modern form only exist beyond private law.

      A radical transformation of law takes place in the modern form of rights. The de-moralization [Entsittlichung] of law expresses this in negative terms: traditionally, law is the moral or rational order of the fair share in which each receives his or her own – his or her right. The modern administration of rights, however, must be defined in positive terms. It consists in the reconfiguration of the basic relation between the legal and the pre- or extra-legal, between norm and nature. In the modern form of rights, law becomes the process of juridification: rights are the mechanisms of an incessant legalization of the natural.

Notes

      1 1. Michel Villey, La formation de la pensée juridique moderne, ed. by Stéphane Rials (Paris: Quadrige/PUF, 2006), 267.

1 A PHILOSOPHICAL HISTORY OF RIGHT’S FORM

      Historians debate who should be regarded as the first author responsible for formulating the new – contemporary or modern – way of talking about a right as a person’s “power” [Macht]. In a series of influential essays, the legal historian Michel Villey maintains that William of Ockham was the first to have systematically understood a right in this manner. Ockham thus claims that:

      a right of using is a licit power [potestas licita] of using an external thing of which one ought not be deprived against one’s will, without one’s own fault and without reasonable cause, and if one has been deprived, one can call the depriver into court.¹

      Lordship [dominium] is a principal human power of laying claim to and defending some temporal thing in a human court. “Human power” separates this lordship from the divine lordship.²

      Villey’s critics have cast doubt on whether these formulations by Ockham already amount to a break with tradition – something which is only supposed to have occurred with later authors.³ At the same time, these critics have pointed out that similar formulations can already be found in “men who rediscovered the Digest and created the medieval science of Roman law.”⁴ However we date this break, though, it is undeniable that a distinction was established in the ideologically formative phase of modernity, between medieval nominalism, late scholasticism, and rational natural law. Indeed, Thomas Hobbes already invokes this terminological distinction as a frequently overlooked and yet obvious conceptual fact. Reviewing its history two hundred years later, Friedrich Carl von Savigny again cites it as a common, self-evident insight.

This distinction involves two different meanings of the term “right” [Recht]: the difference between right [Recht] as a justified or prevalent regime of laws and a right [Recht] as a person’s claim. In explaining the title of his The Rights of War and Peace, Hugo Grotius formulates this distinction as follows:

      For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense…. There is another signification of the word right, different from this, but yet arising from it, which relates directly to the person. In which sense, right is a moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act [C.M. - qualitas moralis personae competens ad aliquid juste habendum vel agendum]. This right is annexed to the person.⁵

      Francisco Suárez explains the two “different meanings of the term ‘right’” in a similar way:

      Sometimes “right” means an ethical claim [C.M. – moralem facultatem] to a thing or the right to a thing, whether we are dealing with an actual right of ownership or merely with the right to share in something. Right, in this sense, is the proper object of justice…. But “right” also characterizes law, which is a norm for ethically good action and which establishes a certain consistency in things. In this sense …, “right” coincides with “law.” To put this concisely, we can call the first meaning “useful right” [ius utile] and the other meaning “ethical right” [ius honestum], or the first meaning could be called “real right” [reale] and the second meaning “lawful right” or “legal norm” [legale].⁶

      Hobbes draws on a terminological distinction between law and right to capture the same conceptual difference⁷ – a distinction that Hobbes introduces as a translation of the Roman distinction of lex and ius, getting to the heart of the decisive contrast, for him, between right as binding law and a right as freedom:

      For though they that speak of this subject use to confound Jus and Lex, Right and Law, yet they ought to be distinguished, because RIGHT consisteth in liberty to do, or to forbear; whereas LAW determineth and bindeth to one of them: so that Law, and Right, differ as much, as Obligation and Liberty; which in one and the same matter are inconsistent.⁸

I find the words Lex Civilis and Jus Civile, that is to say, Law and Right Civil, promiscuously used for the same thing, even in the most learned authors; which nevertheless ought not to be so. For Right is Liberty, namely that liberty which the civil law leaves us: but Civill Law is an Obligation, and takes from us the liberty which the law of nature gave us…. Insomuch as Lex and Jus, are as different as Obligation and Liberty.⁹

      Since German has no equivalent for this terminological distinction, “Let us call” what others refer to as ius or right¹⁰ “a right of this person synonymous with privilege; some call it right in a subjective sense,” as Savigny puts it two hundred years after Hobbes.¹¹ Right [Recht] “in