Critique of Rights. Christoph Menke

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СКАЧАТЬ I will use the gender-neutral pronoun “its” in reference to “the Sovereign.”]

      39 39. Hobbes, Leviathan, 148.

      40 40. Hobbes, Leviathan, 148. Cf. also ch. 40: “[T]he inward thought and beleef of men, which humane Governours can take no notice of” (323). In addition, see pp. 52–5 in this volume.

      41 41. Spinoza, Theological-Political Treatise, 202. Martin Saar thus speaks of a “non-normative reformulation of the idea of a natural law” that connects the rules for living together back to the natural; Martin Saar, Die Immanenz der Macht: Politische Theorie nach Spinoza (Berlin: Suhrkamp, 2013), 35.

      42 42. Hobbes, Leviathan, 100f. (ch. 15) and 170f. (ch. 24). For more on the modern conception of property, see chapter 9, “Property before Property,” in this volume.

      43 43. Talcott Parsons refers to law’s new function as “mediating ‘interface’” in the modern differentiation of politics and economy, state and society: “English legal developments contributed substantially to differentiating government from the societal community. Law became less an instrument of government and more a mediating ‘interface’ between the two. It had to serve the needs of government but was sufficiently independent to serve pluralistic private needs as well” (Talcott Parsons, The System of Modern Societies [Englewood Cliffs: Prentice Hall, 1971], 62). Law can only fulfill this social function with the mechanism of the modern character of rights.

      44 44. Hobbes, Leviathan, 92 (ch. XIV).

      45 45. Immanuel Kant, The Metaphysics of Morals (Cambridge: Cambridge University Press, 1996), 187–8.

      46 46. Carl Schmitt opposes “the mere enactment of acts … consistent with the manner of thinking of the positivistic legal system, translated with the word law” to “a spatially concrete, constitutive act” of law as distributive “act of spatial ordering” (Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. by G.L. Ulmen [New York: Telos, 2003], 78 and 81f.). According to Schmitt, law in its constitutive sense is external demarcation that nevertheless becomes substantial order. Schmitt therefore conceives constitutive law as the naturalized form of modern law. The real alternative, ethical or just law, breaks down in Schmitt (see also 113–19).

      47 47. C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 2011), 88.

      48 48. Benedict de Spinoza, Political Treatise, in: The Complete Works, trans. by Samuel Shirley (Indianapolis: Hackett, 2002), 676–754, here 683 (ch. 2).

      49 49. Hobbes speaks of “qualities” in relation to natural laws (Leviathan, 253 [ch. 26]). Spinoza speaks of being “determined” in his Theological-Political Treatise, 195 (ch. 16).

      50 50. Rudolf von Ihering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung (1865), unaltered reprint of the 10th edn. (Aalen: Scientia, 1968), part 3, 339.

      51 51. Ihering, Geist des römischen Rechts, 330.

      52 52. Ihering, Geist des römischen Rechts, 350. For what follows, see chapter 4, “Excursus: The ‘Formal’ and the ‘Material’ Side (Ihering),” in this volume.

      53 53. See Markus S. Stepanians, “Einleitung: ‘Rights is a term that drips confusion’,” in: Stepanians (ed.), Individuelle Rechte (Paderborn: mentis, 2007), 7–33, esp. 23ff., with reference to Donald Neil MacCormick, “Rechte in der Gesetzgebung,” in: Stepanians, Individuelle Rechte, 164–83. For what follows, see also the overview in Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), 79–94.

      54 54. Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986), 171; cf. Joel Feinberg, “The Nature and Value of Rights,” in: Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press 1980), 143–58, here 148f.

      55 55. Raz, Morality of Freedom, 169.

      56 56. Raz, Morality of Freedom, 181. To state this in greater detail: “Rights are the grounds of duties in the sense that one way of justifying holding a person to be subject to a duty is that this serves the interest on which another’s right is based. Regarded from the opposite perspective the fact that rights are sufficient to ground duties limits the rights one has. Only where one’s interest is a reason for another to behave in a way which protects or promotes it, and only when this reason has the peremptory character of a duty, and, finally, only when the duty is for conduct which makes a significant difference for the promotion or protection of that interest does the interest give rise to a right” (183).

      57 57. Spinoza, Theological-Political Treatise, 196.

      58 58. Villey, “La genèse du droit subjectif chez Guillaume d’Occam,” 101 (with regard to property rights): “But such a law did not create property, it only authorized it.”

      59 59. Niklas Luhmann, Law as a Social System, trans. by Klaus A. Ziegert (Oxford: Oxford University Press, 2004), 111.

      60 60. Luhmann, Law as a Social System, 86. This can also be seen as the point of Luhmann’s own concept of the self-reflection of law; for more on this, see part II in this volume.

      61 61. Luhmann, Law as a Social System, 113.

3 INNER CHOICE

      The first axis around which the distinction of three historical legal systems – Athens, Rome, London – revolves is the legal claim’s essential character (by which one person is able to obligate another). In all three regimes, law gives rise to individual claims in two fundamentally different ways: by dividing what is common or by legalizing the natural. This immediately involves a second axis of distinction, however. It concerns the essence of juridical governance – the meaning of the “legality” [Gesetzlichkeit] that defines law: why, to what end, and over what does law rule in giving rise to claims? In these three regimes, how does law understand the fact that it must rule, in order to safeguard claims? And how does it understand the fact that the claims of individuals against each other only exist under the rule of law?

From Paideia to Sovereignty

Law rules all: legal regulations are based on the capacity for coercion. Such regulations bear the threat of coercion. The oldest doctrine of law is that the relation to law must remain a relation of “awe” [Ehrfurcht], indeed one of “fear” [Furcht], so that law can be the institution of justice.¹ In the Eumenides, Aeschylus formulates it as the insight that a right which is only established to express the equality of citizens (and which is thus distinguished from personal rule [Herrschaft]) requires subjection to the threatening ruling power that everyone wields over the individual. Athena thus proposes a new system of law for her city since it will closely fuse equality and rule. For “But who that traineth not his heart in fear, be it State or be it man, is like in the future to reverence justice as heretofore? Approve thou not a life ungoverned nor one subjected to a tyrant’s sway.”² Law holds sway [herrscht], it binds its rules to the capacity for coercion, since it reckons with human beings who are not lawful – who do not do, of their own accord, what law must СКАЧАТЬ