Critique of Rights. Christoph Menke

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1 A PHILOSOPHICAL HISTORY OF RIGHT’S FORM

      Historians debate who should be regarded as the first author responsible for formulating the new – contemporary or modern – way of talking about a right as a person’s “power” [Macht]. In a series of influential essays, the legal historian Michel Villey maintains that William of Ockham was the first to have systematically understood a right in this manner. Ockham thus claims that:

      a right of using is a licit power [potestas licita] of using an external thing of which one ought not be deprived against one’s will, without one’s own fault and without reasonable cause, and if one has been deprived, one can call the depriver into court.¹

      Lordship [dominium] is a principal human power of laying claim to and defending some temporal thing in a human court. “Human power” separates this lordship from the divine lordship.²

      Villey’s critics have cast doubt on whether these formulations by Ockham already amount to a break with tradition – something which is only supposed to have occurred with later authors.³ At the same time, these critics have pointed out that similar formulations can already be found in “men who rediscovered the Digest and created the medieval science of Roman law.”⁴ However we date this break, though, it is undeniable that a distinction was established in the ideologically formative phase of modernity, between medieval nominalism, late scholasticism, and rational natural law. Indeed, Thomas Hobbes already invokes this terminological distinction as a frequently overlooked and yet obvious conceptual fact. Reviewing its history two hundred years later, Friedrich Carl von Savigny again cites it as a common, self-evident insight.

This distinction involves two different meanings of the term “right” [Recht]: the difference between right [Recht] as a justified or prevalent regime of laws and a right [Recht] as a person’s claim. In explaining the title of his The Rights of War and Peace, Hugo Grotius formulates this distinction as follows:

      For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense…. There is another signification of the word right, different from this, but yet arising from it, which relates directly to the person. In which sense, right is a moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act [C.M. - qualitas moralis personae competens ad aliquid juste habendum vel agendum]. This right is annexed to the person.⁵

      Francisco Suárez explains the two “different meanings of the term ‘right’” in a similar way:

      Sometimes “right” means an ethical claim [C.M. – moralem facultatem] to a thing or the right to a thing, whether we are dealing with an actual right of ownership or merely with the right to share in something. Right, in this sense, is the proper object of justice…. But “right” also characterizes law, which is a norm for ethically good action and which establishes a certain consistency in things. In this sense …, “right” coincides with “law.” To put this concisely, we can call the first meaning “useful right” [ius utile] and the other meaning “ethical right” [ius honestum], or the first meaning could be called “real right” [reale] and the second meaning “lawful right” or “legal norm” [legale].⁶

      Hobbes draws on a terminological distinction between law and right to capture the same conceptual difference⁷ – a distinction that Hobbes introduces as a translation of the Roman distinction of lex and ius, getting to the heart of the decisive contrast, for him, between right as binding law and a right as freedom:

      For though they that speak of this subject use to confound Jus and Lex, Right and Law, yet they ought to be distinguished, because RIGHT consisteth in liberty to do, or to forbear; whereas LAW determineth and bindeth to one of them: so that Law, and Right, differ as much, as Obligation and Liberty; which in one and the same matter are inconsistent.⁸

I find the words Lex Civilis and Jus Civile, that is to say, Law and Right Civil, promiscuously used for the same thing, even in the most learned authors; which nevertheless ought not to be so. For Right is Liberty, namely that liberty which the civil law leaves us: but Civill Law is an Obligation, and takes from us the liberty which the law of nature gave us…. Insomuch as Lex and Jus, are as different as Obligation and Liberty.⁹

      Since German has no equivalent for this terminological distinction, “Let us call” what others refer to as ius or right¹⁰ “a right of this person synonymous with privilege; some call it right in a subjective sense,” as Savigny puts it two hundred years after Hobbes.¹¹ Right [Recht] “in the objective sense” is law [das Recht]: right [Recht] as governing statute [Gesetz]. Right in the subjective sense is a right, in other words, a claim that a person or “subject” can make which is normatively binding or, as Kant puts it, the “moral capacity for putting others under obligations.”¹²

      None of the modern authors СКАЧАТЬ