Christoph Menke

Critique of Rights


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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.

      Villey’s words immediately make clear how the various authors whose formulations have laid the groundwork for the modern form of rights (which Savigny calls “right in the subjective sense”) proceed in fundamentally different ways. As we have seen, the modern revolution of rights reverses the priority between a right and law, between right as claim and right as law. This revolutionary reversal, however, is only possible because the conception of the legal claim itself is completely reformulated. This reconception involves the relation between possession and use, the “(fact) that” and the “for what purpose” of the legal claim – the juridical and the pre- or extra-juridical.

      On the Roman view, a person’s legal status and their extra-juridical power are strictly distinguished from each other. Equal legal status consists in each person having their own, or an equal, fair share of a thing. In addition, legal equality in Rome involves the capacity for legal actions, above all, the commencement of actiones.20 A rightsholder’s power or freedom over his own, in the use of his fair share, is something radically different. The power (potestas) exercised by a person over his domain is private, or to put this more precisely, it is natural, because it precedes the legal system, only existing outside of it. “Freedom, from which men are said to be free, is the natural power of doing what we each please, unless prevented by force or by law.”21 In Rome, “for a jurist, power is an external condition, a prejuridical concept.”22 There is no connection between legal status – the fair share, one’s own – and private power or the natural freedom to dispose over a domain that is one’s due. A clear line divides the two, separating law from the pre-juridical.

      In contrast, the juridical and the pre-juridical are linked to each other in the modern conception of rights. This is why Ockham calls right [Recht] “power,” and his successors call it “capacity,” “quality,” “competence,” or “freedom.”

      In contrast, Ockham argues that the legitimate (which here only means: not unlawful) use of things does not assume any property, any legal claim, indeed does not assume any right: if there is a community in which everything is held in common by all (omnia communia), then it will also be the case, in such a community, that “use of fact can be separated.”26 To be able to rebut the papal objection that the Franciscan vow of poverty is self-contradictory, however, he must understand (as Villey critically observes) the concept of the legal claim in a completely different way from how it is understood in the papal objection: Ockham must introduce a fundamentally new conception of the legal claim.

      Right [le droit], in the technical sense of the term, no longer refers to the good that is justly due to something (id quod iustum est), it refers to a much narrower concept: the power that one holds over a good.27

      Giorgio Agamben has spoken of the “subtlety of Ockham’s strategy” against the papal critique, which allowed for “holding oneself both outside and before the law.”29 However, while in Ockham this strategy aims at the “possibility … of pursuing an existence outside the law,”30 it actually – as Villey interprets Ockham’s position in the history of law – yields a fundamentally new image of law, through which law is opened up to its outside and thereby integrates what is outside the law into law. The Franciscan “right, not to have any rights”31 is historically realized in the modern right [Recht] to not be right: as the right to be willing and acting outside the law [Recht]. The very same thing holds true for the modern character of rights.

      If Ockham calls right [Recht] a