.

of citizens is from the Aristotelian grounding of justice in the proportional value of works and contributions, they both remain bound to the basic definition of right as justice. In Athens and Rome, a legal claim is just because it is a claim to something just, to a share that is determined by just distribution and equalization between persons.

In London, however, with the modern character of rights, the legally binding claim that a person makes is a matter not of something just – the fair share – but of something pre- or extra-juridical: the power or freedom to engage in an activity that is independent of law and thus already prior to law. To this extent, we can call such a claim “natural,” which implies that the natural is the social (the theme of part III). The legal claims of one person over against another are claims not to something just, but to something natural and therefore prior to law. Legal claims now exist not to assess what belongs to each, what each person’s fair share in something is, but to secure or enable each person’s carrying out of their own natural activities. Rights stand on the boundary between law and the pre- or extra-juridical. As Talcott Parsons says of modern law in general, rights are the “mediating ‘interface’” between law and that which is outside the law.⁴³

      Modern rights essentially define the claim by combining what is categorically different. The content of a right is something extra-juridical. A right is a claim to the power or freedom to engage in a natural activity. The content of a legal claim is a pre-legal claim. The pre-legal claim’s content only becomes a right, or a justified claim that can obligate others, however, when it submits to an external condition. A legal claim emerges from the claim’s pre-juridical content by restricting its scale and scope. This is now the definition of the law of right [Rechtsgesetz]. Law [Gesetz] is no longer the just prescription of ethical action, but the external demarcation of domains of natural activities over and against one another. The mechanism by which legal claims emerge from natural claims is not their transformation into moral claims, but their demarcation over and against each other from outside – substantively unchanged. Rights exist when each person, in Hobbes’ suggestive formulation, is “contented with so much liberty against other men, as he would allow other men against himselfe.”⁴⁴ In Kant’s reformulation of this thought: “What end anyone wants to set for his action is left to his free choice. The maxim of his action, however, is determined a priori, namely that the freedom of the agent could coexist with the freedom of every other in accordance with a universal law.”⁴⁵ Law [Gesetz] realizes the equality of each person (and thereby yields legal claims) by demarcating pre-legal claims – which, as natural, are boundless and thus incommensurate – from each other and thus allowing them to exist alongside each other. The new conception of law presupposed by the modern character of rights is now one in which law is the outer limit of what is unlimited in itself, not the authoritative postulation of an inner measure.⁴⁶

Only through its structural externality does law [Gesetz] obtain the egalitarian content that is the distinctive feature of modern law [Recht]. In Athens and Rome, just division measures what is each person’s own, according to what each is for their community. The legal claim is based on – is proportional to – the individual’s moral existence. And this is essentially variable. In contrast, natural claims, whose demarcation enables the law [Gesetz] of modern right [Rechts] to yield legal claims, are essentially equal. They have no inner measure that links and distinguishes them. For this reason, law does not judge them, does not distinguish them into high and low, dignified and undignified, but demarcates them from outside: law considers them equal. The egalitarian redefinition of justice in the modern law of right reflects the “actual … equality” of the natural,⁴⁷ the pre-juridical, to which law [Recht] has bound itself.

      While in Athens and Rome the legal claim’s entitlement or obligation is therefore guaranteed (it is a justified claim because it is a claim to something just; the claim’s just content is the basis for its normative, legally binding force), the claim only receives justification or becomes binding in the modern character of rights through the demarcation of equality, which externally subordinates what is claimed. The reason why a claim’s legality is no longer able to coincide with its content is that its content is pre-juridical or natural: the legal claim’s content is no longer just, and therefore moral, but the natural activity of a human being. This natural content can never have binding force by itself, but only obtains it through its external demarcation. The claim’s normative power here stems no longer from its content, from what it is, but from the extent and magnitude of its application. The content and the force, the substance and basis of rights diverge with the naturalization of the claim’s content in the modern character of rights.

At the same time, however, this means that extra-juridical, natural content and the claim’s legally binding force are connected to each other as distinct in the modern character of rights: the legal claim is linked back to the facticity of a natural striving. Only because it is the case that the human being “strives to persist in his own being”⁴⁸ can there also be a right to the juridically defined exercise of the power of self-preservation. Natural striving lies at the basis of rights: rights to the natural power of self-preservation, which laws [Gesetze] grant and administer, presuppose that this power and its orientation to self-preservation is the human being’s fundamental natural “quality” or “determination.”⁴⁹ One doctrine of modern natural law is that rights cannot be derived from natural facts: they do not need to be artificially established by communal contract to have normatively binding force. Another doctrine of modern natural law is that rights are based on natural presuppositions: the establishment of rights proceeds from natural, factual strivings that are prior to law. It is by means of such external demarcation that law [Recht] yields entitled and obligatory claims. The modern character of rights realizes the unity and difference of establishment [Setzung] and presupposition [Voraussetzung], of normativity and nature.

Excursus: Rights and Interests (Raz)

      The so-called interest theory of rights provides us with one way to reformulate this doctrine of modern natural law. According to Rudolf von Ihering’s famous redefinition, which is opposed, on utilitarian grounds, to the traditional idealist theory of the will, “rights are legally protected interests.”⁵⁰ Concerning the theory of the will (which he traces back to Hegel), Ihering writes that “This view’s mistake consists in the fact that it allows the concept of subjective right to be subsumed under that of the will. Its final goal is to define the will, and law, as a demarcated portion of willing substance.”⁵¹ He opposes to this view the following thesis: “Utility forms the substance of law, rather than the will or power.”⁵² Ihering himself already pointed out the deliberate one-sidedness, indeed the inadequacy of this definition, which is only able to conceive the “substantial” moment of rights, but unable to conceive their “formal” moment and thus unable to distinguish between someone who is benefited and someone who is entitled. Nevertheless, the interest theory of rights has often been adamantly defended.⁵³ This is because interest theory, influenced by utilitarianism, is able to express an essential feature of the modern character of rights that is missed in the idealist theory of the will. This feature is the implicative relation between natural and legal claims, which defines the modern conception of rights – and only this conception.

      According to Joseph Raz, the central insight from which interest theory proceeds indicates that we can only define the concept of rights by locating them within a network of grounding and justificatory relations. “Rights” define the form of a specific kind of normative argumentation. In this regard, rights are first grounds for – and not what corresponds to – obligations:

      the right is the ground of the duty. It is wrong to translate statements of rights into statements of “the corresponding” duties. A right of one person is not a duty on another. It is the ground of a duty, ground which, if not counteracted by conflicting considerations, justifies holding that other person to have the duty.⁵⁴

      Second,