Critique of Rights. Christoph Menke

claim that a person or “subject” can make which is normatively binding or, as Kant puts it, the “moral capacity for putting others under obligations.”¹²

      None of the modern authors who distinguished between right as law [Gesetz] and right as claim considered this distinction to be a new conceptual insight. Indeed, for the most part they never even maintained that a terminological innovation was involved. They instead presented the distinction as though it were already established by Roman legal practice or by Aristotelian-Scholastic legal theory. Yet such a distinction had never been made explicitly in practice or in theory, prior to modern legal thought. The distinction between right and a right, between law and right,¹³ between right [Recht] as law [Gesetz] and right as claim, “right” [Recht] in the objective and in the subjective sense, seems as ancient as it is modern: ancient in what it says, in its content; but modern to the extent that it is said, that this content is explicitly formulated and established. On the one hand, it seems as if the distinction between right as law and right as claim is always already given. On the other hand, to make this distinction is to do something fundamentally new, with far-reaching consequences. In other words, this distinction is more rhetorically than semantically novel, more an act of distinguishing than an issue of content. In that case, however, can it still be the same distinction?

The Reversal of Primacy

Leo Strauss firmly declared Hobbes to be the original author of the distinction between law [Gesetz] and claim. Accordingly, Hobbes’ distinction between “law” and “right”¹⁴ – despite its derivation from the Roman distinction between lex and ius – must be regarded as a radical “innovation” that enabled him to definitively differentiate “modern” politics from its “ancient” understanding.¹⁵ Strauss’ argument for Hobbes as the original author of the modern distinction between law and right [Anspruch] (and thus not Grotius, whom he viewed as still bound to tradition on this critical question) maintains that Hobbes was the first to understand it as “fundamental.” In other words, Hobbes was the first to understand that this distinction concerns the basis of the legal system. For Hobbes “fundamentally distinguished” law and right to indicate precisely that “modern political philosophy takes ‘right’ as its starting point, whereas classical political philosophy has ‘law’” (while Grotius still thought that the “moral quality by virtue of which a person has a right to or can do something [ius proprie aut stricte dictum],” which he distinguishes from right as law, “presupposes lex”¹⁶):

      Because Hobbes was the first to distinguish with incomparable clarity between “right” and “law,” in such a way that he sought to prove the State as primarily founded on “right,” of which “law” is a mere consequence [ ….] – Hobbes is for that very reason the founder of modern political philosophy.¹⁷

      Strauss’ historical argument for Hobbes as the original author of the distinction between law and right [Anspruch] is thus based on his thesis concerning the point of this distinction: the reason for making it is to “subordinate law to right.”¹⁸

      Regardless of what we think about Strauss’ suggested chronology, it forms the systematic substance of his interpretation of Hobbes. In distinguishing law and right [Anspruch], we are thus concerned with nothing less than a new response to the question of priority, and hence with the question of basis: at issue is “the supplanting of the primacy of obligation [C.M. – which the law imposes] by the primacy of claim.”¹⁹ By isolating the claim [Anspruch] in this manner, over and against obligation and law, it becomes the “fundamental moral fact” prior to law.²⁰ According to Strauss, this therefore means that modern politics begins by drawing the distinction between law and claim. To make this distinction is the modern act of revolution: “The fundamental change from an orientation by natural duties to an orientation by natural rights.”²¹

Leo Strauss sees the basic process of liberalism at work in the reversal of primacy between law [Gesetz] and claim, between law [Recht] and rights.²² Liberalism means thinking law, or the legal system, on the basis of rights, or from the individual. Liberalism is “that political doctrine which regards as the fundamental political fact the rights, as distinguished from the duties, of man.”²³ Liberalism views the distinction between law and a right as the revolutionary act that separates modernity’s political order from tradition, because, with this distinction, the right as claim is first set apart from law as statute (the legal claim is no longer an effect of the legal system, as it traditionally was, but stands alone), so as to ultimately become prior to this system.²⁴ The semantic content of the distinction between ius and lex, or “law” and “right,”²⁵ may be an ancient one and merely analytical, a distinction between two modes or perspectives in which we can speak of “right.” However, the rhetorical meaning or purpose of the distinction between law and a right – as Leo Strauss interprets liberalism, whose history accordingly begins with Hobbes – is to establish the claim as the basis of law [Gesetz], or rights as the basis of law [Recht].

      But how can there be a legal claim that is able to normatively bind others before and thus independent of law’s legal order? Is not the idea of a right before law “nonsense upon stilts,”²⁶ as Jeremy Bentham said of the rights of man, or, as Raymond Geuss puts it, “white magic”?²⁷

      Along with Strauss, Hans Kelsen has also objected to the concept of rights, arguing that liberalism establishes a “dualism” – of claim and law – which supposedly reverses the explanatory relations between them:

      The original intention of the dualism of objective and subjective right [Recht] expresses the thought that the latter precedes the former both logically and temporally: subjective rights emerge first (such as private property, the primary prototype of a subjective right), and only later do we also find objective right as a state order that protects, recognizes, and secures the subjective rights that have emerged independently from it.²⁸

      Subjective right precedes objective right, the claim precedes law. For Kelsen, this basic thesis of liberal dualism has an obvious “ideological function”: it is supposed “to conceal the socio-economically decisive function” of capitalist private property.²⁹ However, the priority of claim over law is also conceptually incoherent. It encapsulates the aporia of modern natural law [Naturrechts] that lies at the basis of liberal dualism: the paradox of a natural legal claim – the idea of a claim that is supposed to naturally occur of its own accord and at the same time is supposed to be obligatory.

      The idea of a natural right [Rechts] is paradoxical because it is the idea of a right [Rechts] before law [Recht]. “Rights before law,” however, either (i) are not rights at all, or (ii) do not really exist before law at all.

(i) Either the following is valid: if claims, as natural, are supposed to precede law, there are no rights. This is clearly Spinoza’s position: the talk that I have a natural “right” can only negatively mean that no one else has the right to hinder me – not because others are obligated to refrain from hindering me due to my legitimate claim, but because we stand beyond or, better, on this side of law and obligation. Natural right before law is the semblance of a right because it has no corresponding obligation:

      [Everyone] always endeavors as far as in him lies to preserve his own being and (since every man has right to the extent that he has power), whether he be wise or ignorant, whatever he endeavors and does, he endeavors and does by the sovereign right of Nature. From this it follows that Nature’s right and established order under which all men are born and for the most part live, forbids only those things that no one desires and no one can do.³⁰

      “There is no normativity in nature,”³¹ and for this reason, too, there are no natural rights.

      (ii) Or the following is valid: if rights are supposed