Читать книгу Critique of Rights - Christoph Menke - Страница 16

Roman law adopts, virtually unchanged, the basic definition of the legal claim, which was framed by a moral understanding of law in Athens. In Rome, the fact that someone has a right, and thus a justified claim on someone else, also means that such a claim is his own, that it rightfully belongs to him, and that, in particular, it is his fair share of something. Justice – in other words, a state of affairs in which persons and things stand in a relation of equality – is the basis of rights. Cicero is drawing on this when he reproaches “the friends of the people,” who push for a redistribution of land and the eviction of previous owners:

[They are] undermining the foundations of the commonwealth: first of all, they are destroying harmony …, and second, they do away with equity [C.M. – or equality: aequitatem], which is utterly subverted, if the rights of property are not respected. For, as I said above, it is the peculiar function of the state and the city to guarantee to every man the free and undisturbed control of his own particular property [suae rei cuiusque custodia].¹⁰

Anyone deprived of his own suffers an injustice. In contrast, those who make it their business “to look after the interest of the state” see to it that “every one shall be protected in the possession of his own property by the fair administration of the law and courts.”¹¹ Laws founded on right [Rechtsgesetze] articulate what constitutes relations of justice or equality, and what is appropriate for each person in such just relations is his own. This is his right: the right that a person has is his own, and justly belongs to him. “To each his own: suum tribuens…. It is the task of justice to apply to each and every thing the legal provision that corresponds to it.”¹² Equitable distribution precedes an individual’s right, and is the subject matter of legal practice. “Ius is the share that is awarded to someone, the result of distribution…. The word [C.M. – ius] designates the fair share”: one has a right according to the standard of justice [Gerechtigkeit] and hence only to something equitable [Gerechtes].¹³ The individual’s right is his fair share.

If we characterize this as the alignment of Roman law with moral law (their alignment in the basis, namely as the foundation of rights in justice), then on Villey’s interpretation such an alignment is different from moral law due to its abstractness: Roman law abstracts from morality in the exercise of rights. First of all, this indicates how equality is understood in the civic relationships that establish law. The Roman citizen’s right is also his own fair claim to a share equal to anyone else’s. “The reason for making constitutional laws” is “to hold the higher and lower classes in an equality of right”; right must correspond to “equality of rights before the law … otherwise they would be no rights.”¹⁴ From now on, however, this equal share consists in the abstract fact of being a free Roman citizen. He is an equal citizen insofar as he bears the title of pater familias: master in his own house, able to freely dispose of matters there. He possesses a “sphere of independent activity; the Roman is only responsible for the manner in which he exercises his rights over his property, his family.”¹⁵ Because this abstract position of equal civic status shapes the crucial regard for equitable distribution, citizens can no longer be guided in their association with each other by an orientation to an authoritative hierarchy of value when they contribute to or satisfy needs deemed politically important in the state, as they were on the Aristotelian model. If each person’s own only consists in being a free citizen like all other citizens (“an equality in which all count as the same, i.e. as persons”),¹⁶ the standard of their exchange cannot, indeed must not, be left up to them. However the quantitative ratios turn out, exchange is only considered just because (or when) each person is regarded as a property owner. One’s own, which equitable distribution allots to each person, consists in being a property owner.

This stage of abstraction in Roman law leads to misunderstanding (something contested by Michel Villey, in particular), insofar as it introduces a new concept of law as justified claim. The categorical difference that separates Roman law [Recht] from modern law (this is why Villey contests such an understanding), however, is thereby blurred, indeed it even vanishes from sight. This misunderstanding consists in conflating the Roman citizen’s right [Recht] as property owner or his right as ownership with a right over his property. On this view, that which is one’s own, which equitable distribution allots to the Roman citizen, is understood to be the power to use one’s own things. This is a misunderstanding because “ius is not subjective, in the meaning this word comes to have in scholastic language, it is objective…. A share in things and not power over things.”¹⁷ Right [Recht] as fair share and private power, which on the Roman view enables the paternal property owner to dispose over what is his own, are indeed related to each other. However, “If any ius has as its practical consequence the exercise of a potestas, then it is not this potestas, because ultimately law itself has by no means authorized me to exercise an arbitrary and unlimited power in my domain.”¹⁸ My right is my fair share in a thing, not my power to dispose over this thing. Roman law [Recht] secures one’s own for each, but how and why someone uses what is his own is not its concern. In Rome, the use of law is private, not a matter for legal provisions. “Law has nothing to say” about usage:

[Law] draws the boundaries for domains, but is not concerned with what happens in each domain, the relations of the property-owner to his domain, which has been bestowed on him. The absolute power exercised by the Roman master over his affairs is generally not a legal matter; it is passed over in silence, falling into law’s gap.¹⁹

Roman law is in transition, since it associates the traditional moral justice of distribution and of the share, the definition of a right as fair share, by abstracting from citizens’ usage of their rights.