Critique of Rights. Christoph Menke

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СКАЧАТЬ such external demarcation that law [Recht] yields entitled and obligatory claims. The modern character of rights realizes the unity and difference of establishment [Setzung] and presupposition [Voraussetzung], of normativity and nature.

Excursus: Rights and Interests (Raz)

      The so-called interest theory of rights provides us with one way to reformulate this doctrine of modern natural law. According to Rudolf von Ihering’s famous redefinition, which is opposed, on utilitarian grounds, to the traditional idealist theory of the will, “rights are legally protected interests.”⁵⁰ Concerning the theory of the will (which he traces back to Hegel), Ihering writes that “This view’s mistake consists in the fact that it allows the concept of subjective right to be subsumed under that of the will. Its final goal is to define the will, and law, as a demarcated portion of willing substance.”⁵¹ He opposes to this view the following thesis: “Utility forms the substance of law, rather than the will or power.”⁵² Ihering himself already pointed out the deliberate one-sidedness, indeed the inadequacy of this definition, which is only able to conceive the “substantial” moment of rights, but unable to conceive their “formal” moment and thus unable to distinguish between someone who is benefited and someone who is entitled. Nevertheless, the interest theory of rights has often been adamantly defended.⁵³ This is because interest theory, influenced by utilitarianism, is able to express an essential feature of the modern character of rights that is missed in the idealist theory of the will. This feature is the implicative relation between natural and legal claims, which defines the modern conception of rights – and only this conception.

      According to Joseph Raz, the central insight from which interest theory proceeds indicates that we can only define the concept of rights by locating them within a network of grounding and justificatory relations. “Rights” define the form of a specific kind of normative argumentation. In this regard, rights are first grounds for – and not what corresponds to – obligations:

      the right is the ground of the duty. It is wrong to translate statements of rights into statements of “the corresponding” duties. A right of one person is not a duty on another. It is the ground of a duty, ground which, if not counteracted by conflicting considerations, justifies holding that other person to have the duty.⁵⁴

      Second, this grounding of duties by the establishment of rights happens in such a way that a person’s interest is invoked – instead of referring to an imperative or a law [Gesetz]:

A right is based on the interest which figures essentially in the justification of the statement that the right exists.⁵⁵

      The interests are part of the justification of the rights which are part of the justification of the duties.⁵⁶

      This has two different implications: the fact that a person has a specific interest is not sufficient on its own (it is only a necessary “part”) for recognizing this person’s right to that in which they have an interest. For this reason, we need an additional argument, which finds authoritative expression in laws [Gesetzen]. Rights are therefore based on interests only under laws, in a normative order. At the same time, however, the fact that a person has a specific interest is a necessary condition for (an essential part of) recognizing that person’s right. This is the crucial conceptual insight offered by interest theory – however we answer the question of utility or freedom. It entails that the normative force of rights is connected to the facticity of natural strivings that exist prior to law, and thus to the fact that persons have interests. Interests are simultaneously defined by where they are conceptually located in the grounding of rights and by their factual, empirical existence. They link rights back to facts.

      To sum all of this up: Leo Strauss has interpreted the introduction of the modern conception of rights as “the supplanting of the primacy of obligation [C.M. – which the law imposes] by the primacy of claim.” This thesis is absurd, if we understand it to mean that there cannot be legally binding claims without law [Gesetz]: rights only exist under a law. Spinoza writes “This is precisely what Paul is saying when he acknowledges that there is no sin before law is established, i.e., as long as men are considered as living under the government of nature.”⁵⁷ At the same time, however, on the modern understanding, rights are referred back to the fact of natural strivings prior to law, whose fulfillment in activities they legalize. It is therefore true of the modern character of rights that law [Gesetz] “did not create [C.M. – rights], it only authorized [them].”⁵⁸ To put this more precisely: law [Gesetz] creates rights by authorizing something that exists prior to law [vorrechtlich]. The form of the creation of rights is the legalization of the natural.

The locus of rights is paradoxical: they stand on the boundary that connects law [Recht] and what is outside the law, normativity and nature, to each other, by dividing them from each other. Law and what is outside the law are separated from each other and linked to each other in the modern character of rights. They are divided from each other in order to then link what has been divided. The modern form of rights is a paradoxical characteristic of juridical normativity: it fixes normativity and facticity in place, without resolving normativity into facticity. The normative force of a legal claim, the fact that it is binding on another, is not a consequence of a factual, naturally existing interest (it cannot be derived merely from what is already there) but it does follow upon this interest. Rights cannot only be oriented to interests, they must relate to interests, which means, in particular, that they rest on interests, their basis is the natural.

      Niklas Luhmann defines the composition of modern law in terms of “normative closure and cognitive openness.”⁵⁹ According to Luhmann, law can therefore be regarded either normatively – in which case it is regarded as closed – or cognitively – in which case it is regarded as open. This choice between alternatives misses the decisive feature in the modern character of rights. Luhmann’s thesis, which we oppose, is that “the distinction between norms and facts” in modern law “kept … early writings on the sociology of law … at a distance from other legal theory,”⁶⁰ because the “blending” of the two distinct sides is not “avoided.”⁶¹ It is in fact quite the reverse: the modern form of rights carries out the distinction of norms and facts in such a way that they are distinguished from each other and linked to each other. In this way, normativity is distinguished from and bound to facticity: rights – only – entitle us to what is natural; we can only be entitled to something natural. The normativity of rights enables, secures, and safeguards the natural. The normativity of rights makes the norm’s other – nature – into its interior, its presupposition, and thus its goal.

Notes

      1 1. Aristotle, Nicomachean Ethics, trans. by H. Rackham (Cambridge: Harvard University Press, 1934), 267 (1131a).

      2 2. Aristotle, Nicomachean Ethics, 281 (1132b).

      3 3. Aristotle, Nicomachean Ethics, 275 (1132a).

      4 4. [Tr. – translation modified] Aristotle, Nicomachean Ethics, 277 (1132a) [C.M. – my italics].

      5 5. Aristotle, Nicomachean Ethics, 279 (1132b) [C.M. – my italics].

      6 6. Aristotle, Nicomachean Ethics, 275 (1132a).

      7 7. [Tr. – translation modified] Aristotle, Nicomachean Ethics, 285 (1133a–b) [C.M. – my italics].

      8 8. Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995), 63.

      9 9. “There would be no point [ … СКАЧАТЬ