to obligations is thus not really formal at all, but a mere formality. Such an analysis speaks of rights, without grasping their normative force. For it wishes to speak of right while excluding politics – an exclusion that Weinrib considers merely an external agenda.59 If, or since, their normative force is an essential feature of the form of rights and since their normative force is political, because it is based on law [Gesetzes] ruling over individuals, the form of rights also changes with the historical transformation in the basic structure of such rule. “The meaning of a term such as a right is theory-dependent [C.M. – and thus practice-dependent]”: the form of rights changes with the theory and practice of juridical rule.60
* * *
There are three interpretative hypotheses for the modern character of rights:
1 The modern distinction between law and a right, between right as law [Gesetz] and as claim, declares the primacy of rights over law [Recht]. This constitutes its rhetorical, performative sense: the distinction of law [Gesetz] and claim wishes to invert this relationship or revolutionize law [Recht].
2 The declaration of the primacy of rights concerns the function of law, not its basis. The primacy of rights thus does not involve a substantive redefinition of the basis for laws [Gesetze], but radically redefines the form of juridical normativity.
3 By declaring the primacy of rights, the redefinition of the normativity of law revolutionizes the relation of norm and nature. The truth of modern natural law is to be found in the fact that the modern character of rights is concerned with the relation between natural claims and legal rules.
These three hypotheses suggest that we should initially (and for as long as possible) follow Niklas Luhmann’s guideline for interpretation: subjective right should not be conceived on the basis of its reference to the subject, since it is doubtful “if naming the secret already reveals whether the function of this characteristic of law in subjective rights has anything to do with reference to the subject.”61 If Luhmann suggests that we instead see this function in a new way, as law’s “self-regulation,”62 this will be understood in what follows to mean that the modern primacy of rights indicates an upheaval in the basic relation of law to that which it regulates. The primacy of rights concerns the way in which law is administered: how law rules and over what. The subject, whom the modern formula (“subjective rights”) regards as having rights, is the effect of this new way of administering rights – not its basis.
From Athens to London
According to Luhmann, the introduction of the modern category of rights “modifies the awareness of law” by breaking with the traditional idea of “right, or the just” (ius sive iustum). On this traditional view, law is “that which is justified by an objective order. Therefore, it is also interpreted as a derivative of iustum.”63 Luhmann explains this as follows:
The sanction available via law is only a supplementary apparatus for an already existing order. Ius-semantics adheres to these guidelines and therefore interprets ius as justice to be administered. As a result, justice, in concrete terms, is that in a position which is due to another. In this specific positional and social sense, it is relatio, mensura, commensuratio, aequalitas, adequatio.64
Traditional law defines relations of reciprocity between entitlements and obligations that are themselves defined by essentially different positions in a stratified social order. In it, “diverse contributions, for example, those of the guardian and of the ward, those of the prince and of his advisers, coalesce into a legal relationship.”65 Claims and rights are here contributions, determined by social positions, to a relationship that is reciprocal, and to this extent just. If, in contrast, legal claims in modern times are “defined as facultas, as capability, as formative power,”66 they are thereby released from such relations of reciprocal justice. The modern character of rights is unjust (according to the standard of traditional law). It has the character of a thoroughgoing de-moralization of law.
Luhmann describes this process by distinguishing two types of law: traditional moral law and modern law. Yet we can better understand the specific difference of the modern category of rights if we expand our view to include a third regime that carries out the transition between moral and modern law. In the history of philosophy, this occurs in Roman law. For Roman law indeed adopts the traditional moral code as ius sive iustum: “Justice is the constant and perpetual wish to render everyone his due [jus suum cuique].”67 This is not the whole story, however. If we follow the argument that Michel Villey developed in a series of essays, it becomes clear instead that a de-moralization of law already begins in Roman law itself. This does not at all mean that Roman law should be understood as a prototype of modern law. Contrary to a (specifically German) tradition of legal criticism from the early Hegel to Heidegger, which plays off Athens against Rome, and thereby combines law in Rome with law in Western European modernity into a complex whole, Villey’s work aims to clarify the radical difference between Roman and modern law – which for him, including the idea of human rights,68 seemed to be a decline in the Roman awareness of law. The Roman de-moralization of law does not anticipate the modern conception of rights, but, conversely, first allows us to recognize them in their radical innovation.
To demonstrate this, in what follows I will develop a sharply stylized outline of three regimes of private law, which can be situated in three distinctive locales in the history of philosophy: Athens, Rome, and London. In doing so, I am concerned not with historical accuracy (I am therefore not claiming that this is how it was in these three places at a certain time), but with the conceptual distinction of three models of private law. I draw this distinction with one goal in mind, namely to allow the specific feature of that legal system which has become central in the modern category of rights to emerge. I am therefore concerned with the upheaval in the form of law, the upheaval in its normativity and rule, which the modern character of rights brings about and expresses. This character provides a completely new answer to two questions: how (and what) apportions or distributes law? And how (or to what extent) does law rule and is law enforced? The modern character of rights revolutionizes how law is distributed and rules: the modern right of rights enables self-preservation (chapter 2) and allows choice (chapter 3).
Notes
1 1. William of Ockham, A Letter to the Friars Minor and Other Writings, trans. by John Kilcullen (Cambridge: Cambridge University Press, 1995), 24. Above all, one should consult Michel Villey’s classic essay “La genèse du droit subjectif chez Guillaume d’Occam,” Archives de philosophie du droit, IX (1964), 97–127. Part of this text appeared in a posthumously published book that gathered his lectures from the 1960s, La formation de la pensée juridique moderne, ed. by Stéphane Rials (Paris: Quadrige/PUF, 2006), 220–68.
2 2. Ockham, Letter to the Friars Minor, 29.
3 3. Richard Tuck refers to Jean Gerson as the first person who provided “an account of ius as a facultas” (Richard Tuck, Natural Rights Theories: Their Origin and Development [Cambridge: Cambridge University Press, 1979], 25 f.). The central figure in his history of natural rights is Grotius.
4 4. Tuck, Natural Rights Theories, 13. On the role of glossators and the reception of Roman law see also Michel Villey, “Le ‘jus in re’ du droit romain classique au droit moderne,” in: Conférences faites à l’Institut de Droit Romain en 1947 (Paris: Sirey, 1950), 185–227, here 189; Helmut Coing, Zur Geschichte des Privatrechtssystems (Frankfurt: Klostermann, 1962), 38–41. In addition, Brian Tierney
