Critique of Rights. Christoph Menke

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СКАЧАТЬ it refers to a much narrower concept: the power that one holds over a good.²⁷

Ockham can plausibly claim that the right claimed by Franciscans in their use of things is not a fair share in something (which the papal criticism claimed was a prerequisite for any legitimate use), but right as an individual’s power: not merely a person’s power for lawful actions as they deal with something of theirs in relation to other persons, such as selling it to someone, or obtaining compensation for a loss in court. Instead, right as power to (in fact or by nature) use things (potestas licita utendi re extrinsica) is the basis and goal of every lawful action vis-à-vis other persons.²⁸ Ockham, in his defense of the Franciscan vow of poverty against the pope’s traditional legality that right [Recht] is the fair share that someone has in a thing, surreptitiously inaugurates the modern conception of rights as a claim to the power and the freedom to dispose over things (this is the grim point that Villey’s account wishes to make). Ockham thus establishes the legal basis for a reorganization of social (and economic) relations that ultimately undermined the Franciscan way of life. In the Franciscans’ attempt to establish a use of things that was outside the law, they in fact initiated a transformation of law [Recht] that, according to Villey, severed the traditional connection between right [Recht] and justice: by defining right as a claim to natural, extra-legal use.

      Giorgio Agamben has spoken of the “subtlety of Ockham’s strategy” against the papal critique, which allowed for “holding oneself both outside and before the law.”²⁹ However, while in Ockham this strategy aims at the “possibility … of pursuing an existence outside the law,”³⁰ it actually – as Villey interprets Ockham’s position in the history of law – yields a fundamentally new image of law, through which law is opened up to its outside and thereby integrates what is outside the law into law. The Franciscan “right, not to have any rights”³¹ is historically realized in the modern right [Recht] to not be right: as the right to be willing and acting outside the law [Recht]. The very same thing holds true for the modern character of rights.

      If Ockham calls right [Recht] a “power” and then goes to call it “capability,” “quality,” “competence,” or “freedom,” this is not merely a terminological innovation, but a conceptual revolution, because the two categories that were separated by the Romans – legal status and pre-juridical, natural power – are merged into one paradoxical complex. If, since Ockham, the right that someone has is characterized as their power, then the legal claim that such a person has on another is thus determined by the individual’s pre-juridical, private use of what is his own, in carrying out his natural activities. The concepts by which the legal claim has been explained since Ockham – power, capability, quality, competence, or freedom – are characterized by a constitutive ambiguity or bipolarity. They connect what was kept apart in Roman law: the legal and the extra-legal, legal validity and private or natural use. Claim can only be defined as power because power, conversely, has become “an ambiguous term,” as Leo Strauss summarized this fundamental change with reference to Hobbes: “It stands for potentia, on the one hand, and for potestas (or jus or dominium), on the other. It means both ‘physical’ power and ‘legal’ power. The ambiguity is essential.”³² The power that from this time forward is understood to be right as claim is the legal power to exercise pre-legal power.

According to Villey, this alteration of the concept that Ockham unwittingly proposed in his defense of Franciscan poverty is ratified by seventeenth-century natural law, when it conceives rights created by order-establishing contracts (initially, therefore, the rights of the sovereign and then, in the exercise of these sovereign rights, the rights of the subject in Ius Civile or Right Civil)³³ on the basis of natural rights. On Hobbes’ view, natural right consists in “the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life.”³⁴ As Spinoza puts it, “each individual thing has the sovereign right to do everything that it can do, or the right of each thing extends so far as its determined power extends.”³⁵ Every creature is naturally entitled to take “anything that he believes useful to himself,” in which he therefore sees the preservation of his existence:

      And since it is the supreme law of nature that each thing strives to persist in its own state so far as it can, taking no account of another’s circumstances but only of its own, it follows that each individual thing has a sovereign right to do this, i.e. (as I said) to exist and to behave as it is naturally determined to behave.³⁶

      In the state of nature, talk of a “right” to the exercise of power for self-preservation is obviously only meant in a negative sense, because no one else has a right, opposed to mine, to hinder the exercise of my power. There are no normative obligations here – only external hindrances, including the power of others – that could be invoked against my right to, and therefore against the exercise of my power for, self-preservation, at my own discretion. For normative obligations are only present when, in exercising the natural right to self-preservation, the contract that establishes society includes a limitation on, and therefore defines the purpose of, this unlimited right.

      Because, however, this contract, which establishes society and which simultaneously creates normativity and sovereignty, occurs in each individual’s exercise of natural right, and therefore because it is based on securing the natural power for self-preservation, this also remains its goal:

      The Final Cause, End, or Designe of men, (who naturally love Liberty, and Dominion over others,) in the introduction of that restraint upon themselves, (in which wee see them live in Commonwealths,) is the foresight of their own preservation, and of a more contented life thereby.³⁷

Obviously, the natural right to self-preservation cannot yield a counter-right or opposed right against the sovereign. Yet there is no need for this, either. For the laws [Gesetzen] that the sovereign enacts, according to his “sovereign law and right” and thus according to his own conception,³⁸ can only be a matter of that very power of self-preservation that constitutes the content of natural right. Hobbes expresses this in an awkward manner, in a negative way, when he writes that “The Liberty of a Subject, lyeth therefore only in those things, which in regulating their actions, the Soveraign hath praetermitted.”³⁹

      He then provides a list of examples, however: “such as is the Liberty to buy, and sell, and otherwise contract with one another; to choose their own aboad, their own diet, their own trade of life, and institute their children as they themselves think fit; & the like” – including freedom of faith and thought, insofar as they remain “inner.”⁴⁰ The Hobbesian sovereign safeguards bourgeois civil or private right, whose central line of thought was formulated by Spinoza:

      We can mean nothing by the civil right of the citizen other than the freedom of each person to conserve themselves in their own condition, which is determined by the edicts of the sovereign power and protected by its authority alone.⁴¹

      Private right, which is now centered on property,⁴² is thus nothing but a transformed natural right: natural right that has been limited by law and is thereby secured; a power for natural self-preservation that is limited by law and thereby secured. The conceptual link between right (or claim) and power remains in force even for the categorical break at the state’s contractual foundation. Natural power is the content of rights safeguarded by the state. The rights that citizens of a state have vis-à-vis each other have a natural content. The natural rights established in a state have the same content – which is not to say, of course, that they have the same scope – as natural rights. The pre-juridical state of nature persists in the juridical state in the form of bourgeois rights. Indeed, the pre-juridical state of nature is validated in the juridical state. The safeguarding of the pre- and extra-juridical, and therefore of the natural, becomes the basic definition of law.

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