Critique of Rights. Christoph Menke

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The full meaning of this definition becomes evident when we note the question to which it responds. It becomes evident, in particular, when we note that the question which Hobbes answers by introducing freedom of thought and belief is a question of how (not a question of whether), since it is clear that subjects have to obey the sovereign’s legal commands as regards religious matters. These commands establish which creed holds sway in a state and, consequently, how one should worship (including which reports of miracles are to be declared true). These commands of the sovereign must be obeyed, but not because subjects view them as right; the sovereign’s commands may not demand this. Human beings have established the sovereign precisely in order to authorize it to give commands that must be obeyed regardless of what subjects think of them. It does not matter why subjects obey such commands: they neither require, nor do they ever expect, an understanding of their correctness. Laws [Gesetzen] leave the bases for complying with them up to us. The modern sovereign’s resignation from the inner lives of its subjects, to which it has no access, follows from its realization that it cannot want their inner compliance at all, because of what the sovereign is – instituted and authorized by those over whom it rules. In recalling its basis in the will of its (future) subjects, the sovereign, in its laws, recognizes its subjects’ freedom to want what it wants or not to want this.

      This is completely opposed to the Greek idea of education in law, the view that law exists in order to influence its bases in an external manner that cancels itself out and to engender a moral disposition of having the capacity for the right bases. In its operation, Roman law breaks with this idea by considering morality and immorality, sound reason and merely natural striving to be equally possible. Law in Rome concludes from this that its externality is not a temporary expedient in the educational process that is later dispensed with, but something which is just as impossible to get rid of as the corruption of human nature, which law must rule with its commands. Even here, therefore, law still judges in a moral sense – law imposes sound reason against merely natural striving – but it no longer proceeds in a moral manner since it no longer educates us to reason soundly, but instead rules. With the modern form of rights, in contrast, law [Recht] does not simply resign itself to the possibility that it might be internally repudiated and view this as ineradicable (and for this very reason in need of commands). Instead, law allows and indeed enables it – as possibility. The externality of law (which is an essential part of its conception) thereby has its meaning radically transformed: it has become an externality that is opposed to an internality whose inaccessibility to law signifies freedom from law.

Excursus: Legal Choice (Kant)

Kant’s conception of legality is defined by the claim that there is an internal connection between law’s externality and permitting freedom. Legality and morality are two forms of lawgiving, which Kant distinguishes “with respect to the incentive”: on the one hand, there is “The mere conformity or non-conformity of an action with law, irrespective of the incentive to it,” and on the other hand, there is “that conformity in which the Idea of duty arising from the law is also the incentive to the action.”⁵⁸ Kant also formulates this distinction as follows: “Ethical lawgiving (even if the duties might be external) is that which cannot be external; juridical lawgiving is that which can also be external.”⁵⁹ Since juridical lawgiving stipulates not why but how we are supposed to act, it only regulates “the external and indeed practical relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other.”⁶⁰ Juridical lawgiving does not provide any reasons for why we are supposed to act in such ways. This can be formulated in positive terms: since juridical lawgiving only considers external actions, and not the inner reasons for such actions, and because actions, viewed in this way, are acts not of the will (of the capacity for desire, “whose inner determining ground … lies within the subject’s reason”), but of choice (of “the capacity for doing or refraining from doing as one pleases”),⁶¹ the restriction of juridical lawgiving to actions entails setting choice free, within legal limits. “No account at all is taken of the matter of choice, that is, of the end…” but right judges “the form in the relation of choice on the part of both, insofar as choice is regarded merely as free, and whether the action of one can be united with the freedom of the other in accordance with a universal law.”⁶² The “universal principle of right” is a consequence of the externality of juridical lawgiving precisely because “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.”⁶³ Of course, another consequence is that juridical lawgiving can never require “that this principle of all maxims be itself in turn my maxim”:⁶⁴ if right leaves the basis for action up to us, then it also leaves up to us the basis for those actions that we are required to do in order to comply with it.

Kant proceeds to give an emphatic interpretation of legally permitted choice: it forms a person’s “innate” right to the freedom “of being his own master (sui juris).”⁶⁵ Equality, which is likewise innate, follows immediately from this single basic right to choice, as does the presumption of innocence, as well as the authorization “to do to others anything that does not in itself diminish what is theirs” – including “such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true and sincere or untrue and insincere (veriloquium aut faliloquium); for it is entirely up to them whether they want to believe him or not.”⁶⁶ The legally permitted “inner” sphere, which Hobbes restricts to thoughts and beliefs, includes for Kant all utterances that do not “harm” anyone. Right must leave it up to our choice, and must therefore leave our choice up to us not merely in an invisible and inaccessible inner sphere, as with Hobbes, but also in everything we say that does not harm others. This decisive step beyond Hobbes, however, follows from the logic of Hobbes’ own argument: the claim that right cannot concern itself with reasons that form the basis for action. If a person can bend the knee while engaged in religious worship, then one person can tell another person something true (or untrue). When lawgiving (in the more recent, modern sense) is external, there cannot be a legal prohibition on lying.⁶⁷ The only thing that is legally relevant is how “their actions, as facts, can have (direct or indirect) influence on each other.”⁶⁸ In other words, what counts is whether such an influence “harms” others because it transgresses the limits of equality. In this case, however, as Kant turns Hobbes’ thoughts against Hobbes himself, we would be unable to regulate not merely belief but also profession of faith, not merely thoughts but also declaring such thoughts – insofar as such actions do not harm others in the specified manner. Legal obligation must remain external: it is the external regulation of the merely external, and thus the setting free of everything not external. This is the basis for the Kantian right to freedom. It is not “innate” because it results from human nature, but because it is a consequence of the conception of right as external lawgiving.

      What, however, is the basis for the externality of juridical lawgiving, and in what does it consist? Kant explains such externality as follows: “No external lawgiving can bring about someone’s setting an end for himself (because this is an internal act of the mind).”⁶⁹ Right must set internality free, because it gives laws in an external manner. Our review of the Greek conception of educative law [Recht] and the Roman conception of law as dominion [Herrschaft] has revealed that this conclusion is incorrect – or circular. Setting internality free is only a consequence of law’s externality if we have already surreptitiously placed it there. Law’s externality can also be understood in a completely different way: as educative or oppressive, for instance. Law’s externality, which defines its form in general, law as such, is therefore not the basis for the distinctive way in which the modern form of rights permits freedom: the form of modern rights is not a – simple or direct – consequence of law’s form. Hence the question of why modern law construes and establishes its externality so as to permit СКАЧАТЬ