Читать книгу Critique of Rights - Christoph Menke - Страница 9

Leo Strauss firmly declared Hobbes to be the original author of the distinction between law [Gesetz] and claim. Accordingly, Hobbes’ distinction between “law” and “right”¹⁴ – despite its derivation from the Roman distinction between lex and ius – must be regarded as a radical “innovation” that enabled him to definitively differentiate “modern” politics from its “ancient” understanding.¹⁵ Strauss’ argument for Hobbes as the original author of the modern distinction between law and right [Anspruch] (and thus not Grotius, whom he viewed as still bound to tradition on this critical question) maintains that Hobbes was the first to understand it as “fundamental.” In other words, Hobbes was the first to understand that this distinction concerns the basis of the legal system. For Hobbes “fundamentally distinguished” law and right to indicate precisely that “modern political philosophy takes ‘right’ as its starting point, whereas classical political philosophy has ‘law’” (while Grotius still thought that the “moral quality by virtue of which a person has a right to or can do something [ius proprie aut stricte dictum],” which he distinguishes from right as law, “presupposes lex”¹⁶):

Because Hobbes was the first to distinguish with incomparable clarity between “right” and “law,” in such a way that he sought to prove the State as primarily founded on “right,” of which “law” is a mere consequence [ ….] – Hobbes is for that very reason the founder of modern political philosophy.¹⁷

Strauss’ historical argument for Hobbes as the original author of the distinction between law and right [Anspruch] is thus based on his thesis concerning the point of this distinction: the reason for making it is to “subordinate law to right.”¹⁸

Regardless of what we think about Strauss’ suggested chronology, it forms the systematic substance of his interpretation of Hobbes. In distinguishing law and right [Anspruch], we are thus concerned with nothing less than a new response to the question of priority, and hence with the question of basis: at issue is “the supplanting of the primacy of obligation [C.M. – which the law imposes] by the primacy of claim.”¹⁹ By isolating the claim [Anspruch] in this manner, over and against obligation and law, it becomes the “fundamental moral fact” prior to law.²⁰ According to Strauss, this therefore means that modern politics begins by drawing the distinction between law and claim. To make this distinction is the modern act of revolution: “The fundamental change from an orientation by natural duties to an orientation by natural rights.”²¹

Leo Strauss sees the basic process of liberalism at work in the reversal of primacy between law [Gesetz] and claim, between law [Recht] and rights.²² Liberalism means thinking law, or the legal system, on the basis of rights, or from the individual. Liberalism is “that political doctrine which regards as the fundamental political fact the rights, as distinguished from the duties, of man.”²³ Liberalism views the distinction between law and a right as the revolutionary act that separates modernity’s political order from tradition, because, with this distinction, the right as claim is first set apart from law as statute (the legal claim is no longer an effect of the legal system, as it traditionally was, but stands alone), so as to ultimately become prior to this system.²⁴ The semantic content of the distinction between ius and lex, or “law” and “right,”²⁵ may be an ancient one and merely analytical, a distinction between two modes or perspectives in which we can speak of “right.” However, the rhetorical meaning or purpose of the distinction between law and a right – as Leo Strauss interprets liberalism, whose history accordingly begins with Hobbes – is to establish the claim as the basis of law [Gesetz], or rights as the basis of law [Recht].

But how can there be a legal claim that is able to normatively bind others before and thus independent of law’s legal order? Is not the idea of a right before law “nonsense upon stilts,”²⁶ as Jeremy Bentham said of the rights of man, or, as Raymond Geuss puts it, “white magic”?²⁷

Along with Strauss, Hans Kelsen has also objected to the concept of rights, arguing that liberalism establishes a “dualism” – of claim and law – which supposedly reverses the explanatory relations between them:

The original intention of the dualism of objective and subjective right [Recht] expresses the thought that the latter precedes the former both logically and temporally: subjective rights emerge first (such as private property, the primary prototype of a subjective right), and only later do we also find objective right as a state order that protects, recognizes, and secures the subjective rights that have emerged independently from it.²⁸

Subjective right precedes objective right, the claim precedes law. For Kelsen, this basic thesis of liberal dualism has an obvious “ideological function”: it is supposed “to conceal the socio-economically decisive function” of capitalist private property.²⁹ However, the priority of claim over law is also conceptually incoherent. It encapsulates the aporia of modern natural law [Naturrechts] that lies at the basis of liberal dualism: the paradox of a natural legal claim – the idea of a claim that is supposed to naturally occur of its own accord and at the same time is supposed to be obligatory.

The idea of a natural right [Rechts] is paradoxical because it is the idea of a right [Rechts] before law [Recht]. “Rights before law,” however, either (i) are not rights at all, or (ii) do not really exist before law at all.

(i) Either the following is valid: if claims, as natural, are supposed to precede law, there are no rights. This is clearly Spinoza’s position: the talk that I have a natural “right” can only negatively mean that no one else has the right to hinder me – not because others are obligated to refrain from hindering me due to my legitimate claim, but because we stand beyond or, better, on this side of law and obligation. Natural right before law is the semblance of a right because it has no corresponding obligation:

[Everyone] always endeavors as far as in him lies to preserve his own being and (since every man has right to the extent that he has power), whether he be wise or ignorant, whatever he endeavors and does, he endeavors and does by the sovereign right of Nature. From this it follows that Nature’s right and established order under which all men are born and for the most part live, forbids only those things that no one desires and no one can do.³⁰

“There is no normativity in nature,”³¹ and for this reason, too, there are no natural rights.

(ii) Or the following is valid: if rights are supposed to be natural claims, then they do not precede law. This is how Kant understood the matter: on his account, individuals admittedly already have “private” rights prior to the positive legal system of the “civil constitution.” “What belongs to each is only secured, but not actually settled and determined” by such a constitution. “… Prior to a civil constitution (or in abstraction from it), external objects that are mine or yours must therefore assumed to be possible.”³² The existence of private rights here has a “provisional”³³ character (in the literal sense of the word): it remains in force “as long as it does not have the sanction of public law, since it is not determined by public (distributive) justice and secured by an authority putting this right into effect.”³⁴ Private claims on what is mine or yours are thus pre-juridical (and in this sense natural) insofar as they are not under the legal protection of a public authority. In the crucial normative sense, however, they are already constituted by right [Recht] as law [Gesetz]: “for the obligation here arises from a universal rule.”³⁵ Even natural rights are based on law, according to Kant: on a law that exists prior to and independent of all public legislation.

Either natural rights that precede law [Recht] do not yield any obligations, and for that reason are not really rights at all, and therefore not law’s basis. Or natural rights that precede law are actually rights that are binding, but in this case are constituted according to a legal rule and thus, again, not the basis of law.

The corollary of this critique of the liberal “dualism” of a right and of law, which first renders rights independent from law and then explains the latter’s basis, is expressed by Kelsen as the insight that rights only exist in juridical relationships:

Thus if the concept of subjective right and the subjective bearer of rights reveals any ideological function …, all that emerges are juridical relations between human beings, or more precisely between statements of fact regarding human behavior that are connected to each other by the juridical norm, as its content. The juridical relationship is a relation between two statements of fact, one of which is a human behavior defined as a juridical obligation, while the other is a human behavior defined as an entitlement.³⁶

Juridical relationships are the starting point, not rights. This means, first, that rights exist in relation to obligations; rights designate positions in a relationship that also includes other corresponding normative relations or, to put it simply: positions of obligation.³⁷ And, at the same time and contrary to how they are understood in terms of natural law, this means that entitlements can also only be grounds for obligations within particular juridical relationships: where juridical relationships exist, it is possible to say that on their basis someone is obligated to behave in a certain way because someone else is entitled to expect such behavior and to demand it. Where juridical relationships exist, rights can be the basis for obligations. That juridical relationships do exist – the premise of this relational basis – does not for its part depend on the existence of a rule or a law [Gesetz] that links the two kinds of behavior to each other in this specific normative way. According to Alexandre Kojève, it is only “the intervention of a third human being, C, impartial and disinterested” as representative of the “legal rule” which forms the “necessary or ‘essential’ constitutive element”:

This intervention [Tr. – of a third human being] is the specifically juridical element. It is this which confers a juridical character to the situation as a whole…. In this case, and in this case alone, we will be able to say the following:

a) A has the droit [Tr. – the right] to act as he does; his action and the effect of this action constitute his subjective right, and he himself is the subject of this droit, [and] therefore a subject of droit in general (or a juridical person, either physical or moral).³⁸

Rights only exist in juridical relationships, and juridical relationships only exist under laws [Gesetzen]: thus Kelsen’s twofold move here – similar to Wittgensteinian linguistic therapy – traces rights back to their logical or grammatical place in our juridical discourse. The revolutionary claim of a liberalism founded on natural law, which on Strauss’ interpretation is supposed to be expressed by the distinction of “right” and “law,”³⁹ is that rights are the basis of law [Recht] or statute [Gesetz], and this claim is therefore rejected by Kelsen as ungrammatical and meaningless. To put Kelsen’s thesis into sharper contrast: rights can never be the basis of law, since they are only normatively binding, and thus obligatory, on the basis of law.

As a result, Kelsen concludes that the conception of subjective right as an independent category must be abandoned: subjective right is only a “reflex of legal obligation.” It can be “reduced to objective [right], attributed once more to objective [right].”⁴⁰ For Kelsen, to distinguish subjective right from objective right amounts to claiming that the former is the basis of the latter. Because that claim is meaningless, we can dispense with subjective right (in other words, a claim that is conceptually distinct from law) as a legal category – a misleading construction with ideological intentions.

However, this conclusion is wrong. For Kelsen’s alternative – subjective right as ultimate basis or as mere reflex – is a false dichotomy: it misses crucial insights into the modern distinction between ius and lex, right and law,⁴¹ between a right and law [Recht], between claim and law [Gesetz]. To understand this distinction, we must grasp its precise significance and the reason for this significance, namely that it frees the legal claim from the derivative position of being a mere reflex, without at the same time attributing an authoritative force to it that would form the basis for rights. We thus require a different understanding of the modern declaration of the primacy of rights over law, which Strauss justifiably considered to be the principle that inaugurates modern politics: an understanding that does not view the “priority of right over law” (Strauss) to mean that the claim forms the normative basis for law. For, conversely, Spinoza’s argument is that a claim does not have any normatively binding force prior to law, and thus we arrive at Kant’s argument that any claim has normatively binding force only by virtue of law.

The basic thesis of this alternative understanding is that the modern priority of rights over law is a redefinition not of law’s basis, but of its form. The modern distinction between a right and law is the revolutionary act of modern politics: not because it prioritizes rights as the basis of law, but because it radically transforms law. The modern distinction between a right and law expresses a revolution of legal form. It defines law as the right of rights.