Critique of Rights. Christoph Menke

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СКАЧАТЬ peace, defending everyone. Conversely, the sovereign is not supposed to regulate the former, to impose or forbid thought or belief, because he cannot do this. Deviating from the architecture of his theory, Hobbes nevertheless argues, on epistemological grounds, that the sovereign cannot do this (because thought or belief cannot be perceived by a human ruler), which he goes on to give a theological twist (because thought or belief can only be perceived by a divine ruler).⁴⁴ Yet the actual Hobbesian argument for the claim that the sovereign cannot and should not regulate his subjects’ internality, their thoughts and beliefs, is precisely the same one that he makes for the claim that the sovereign must regulate their exteriority, their actions and declarations. The sovereign’s incapacity is not epistemological, but a matter of legitimacy, and thus essential. A consequence of this is that legitimacy, and thereby the essence of the sovereign, consists in the sovereign’s legalization of the extra-legal, which it must simultaneously preserve and protect (in positive terms) and leave alone and put up with (in negative terms).

      In his study of Hobbes’ Leviathan, with its juxtaposition of anti-Semitic resentment and brilliant insights, Carl Schmitt has called the divergence between a legally regulated exterior and a legally unregulated interior the “seed of death” for the sovereign as conceived by Hobbes himself in the image of the Leviathan.⁴⁵ As soon as this divergence occurs, all it takes, according to Schmitt, is “a small intellectual switch emanating from the nature of Jewish life”⁴⁶ to bring about the bourgeois liberal constitutional state:

Only a few years after the appearance of the Leviathan, a liberal Jew noticed the barely visible crack in the theoretical justification of the sovereign state. In it he immediately recognized the telling inroad of modern liberalism, which would allow Hobbes’ postulation of the relation between external and internal, public and private, to be inverted into its converse. Spinoza accomplished the inversion in the famous Chapter 19 of his Tractatus Theologico-Politicus, which appeared in 1670.⁴⁷

Schmitt’s account of the consequences of Hobbes’ restriction of sovereign commands to the external actions of its subjects is completely right: the Hobbesian sovereign is ultimately undone by this restriction. To put this more precisely: with the Hobbesian sovereign’s self-restriction to the external, the sovereign is deprived of the power to administer the rule of law over corrupt nature. This was the Roman view, which Hobbes wishes to uphold but no longer can, according to Schmitt. The Romans abandoned the Greek idea of moral education, in which law’s externality only seems to be a transitional moment. For Schmitt, this image of moral paideia is a later projection of political Romanticism. In contrast to the Greek idea of education in law, Roman law accepts the externality of law as an inevitable condition, since it corresponds to the reality of a corrupt nature. The fact that law is external to the human being’s natural reality here means that law rules over those against whom force must be used. Understood in Roman terms, the externality of law is enforced as domination [Herrschaft]. A sovereign who represents political unity with his person is required for this imperative conception of law. It is only as a sovereign person that the legal system is able to rule over the natural.⁴⁸ For Schmitt, this is Hobbes’ dilemma, the contradiction inherent in his thinking: first, with the image of the leviathan, he evokes a personal sovereign, able to dominate mere nature, and yet, at the same time, with the sovereign’s self-restriction to only ruling over its subjects’ external actions, Hobbes has planted its “seed of death.” For in recognizing the distinction of inner and outer, willing and acting, the sovereign no longer represents political unity. He no longer rules over the naturalness of human beings, but legalizes their natural strivings. This is now the only way for him to acquire his authority. The Hobbesian sovereign, as established or simply agreed to, is a sovereign who restricts himself, a sovereign who has already resigned when it comes into office. Such a sovereign experiences a “metamorphosis from ‘Realism’ to ‘Nominalism’” and what Ernst Kantorowicz observed of Shakespeare’s Richard II holds true of him: “The Universal called ‘Kingship’ begins to disintegrate; its transcendental ‘Reality’, its objective truth and god-like existence, so brilliant shortly before, pales into a nothing, a nomen.”⁴⁹ Instead of dominating the natural, it is accepted. The resigned consequence of law’s externality is its own self-externalization. The sway of sovereign law, by its own inner logic, has become law whose essence is permission or authorization [Befugnis].⁵⁰

Permitting Freedom

      The self-restriction of law, and thus law’s own restriction of itself, consists in the fact that law cannot interfere with the natural striving for self-preservation, because this striving is law’s basis (and hence its goal). Law’s basis is simultaneously its limit: law must permit the natural striving for self-preservation. The conception of legal permission thereby obtains a new meaning. For what is thereby permitted is essentially undefined, indeed is indefinable, for law: law does not permit a particular kind of striving for self-preservation in a particular sense, but permits striving for self-preservation in general, or undefined striving.

      In his argument for self-restricting the legal regulation of religion to external actions and declarations, Hobbes describes this indefinability in epistemological terms: rulers cannot “take notice of … the inward thought, and beleef of men,” since these are “the effect of the … unrevealed will, and of the power of God.”⁵¹ The indefinability of the inner is the human understanding’s inability to recognize its causality. The more radical and promising interpretation gets by without such assumptions, and conceives indefinability in practical terms – in other words, as freedom. On the question of whether “the report [of miracles] be true, or a lie,” Hobbes thus writes:

      In which question we are not every one, to make our own private reason, or conscience, but the public reason, that is, the reason of God’s supreme lieutenant, judge…. A private man has always the liberty, because thought is free, to believe or not believe in his heart those acts that have been given out for miracles…. But when it comes to confession of that faith, the private reason must submit to the public; that is to say, to God’s lieutenant.⁵²

      The self-restriction of law’s governmental power to external actions signifies nothing but the permitting of freedom: the permission to think and believe whatever one wants, whatever one deems it right to think and believe. Legal permission sets judgment free.

Freedom is predicated of thought (“because thought is free”). The reason for this and the way in which freedom is thereby understood becomes evident if we take up the perspective adopted here by Hobbes: the perspective of rule by law. On this argument, rule by law must permit that natural striving which forms its basis (and thus its goal). Thought, of which Hobbes predicates freedom, is legally permitted and therefore natural thought: “reason” (of which Hobbes speaks in the above-cited passage) that pertains to the striving for self-preservation; thinking about the natural striving for self-preservation, which everyone is occupied with in their own natural striving. Hobbes proceeds on the assumption that the striving for self-preservation occurs under natural laws [Gesetzen] that we adhere to in our reasoning. If, however, Hobbes next goes on to make clear that these “are not properly laws, but qualities,”⁵³ then this implies that the freedom of thought enjoyed in carrying out the natural striving for self-preservation is not subject to any normative laws at all: it is free (in this sense) because it is lawless – free from any kind of normativity. Spinoza concludes that the freedom of natural thought only follows “the rules determining the nature of each individual thing by which we conceive it is determined naturally to exist and to behave in a certain way”⁵⁴ – and therefore does not follow the rules of “sound reason.”⁵⁵ “But since we are here discussing the universal power or right of Nature, we cannot acknowledge any difference between desires that are engendered in us by reason and those arising from other causes.”⁵⁶ Natural thought is free precisely insofar as it is also able to be a thought without reason, indeed a thought that can be opposed to reason. The (natural) freedom of (natural) thought is the freedom to think СКАЧАТЬ