over in silence; what, in Rome, falls into the “gaps of law” (Villey): pre-juridical private or natural activity now becomes something which law talks about in order to enable such activity or to safeguard it, and therefore truly becomes a legal matter, the goal of law. A juridically entitled claim that obligates others is a claim to what is non-juridical, indeed to what is pre-juridical, to the natural. What, in Rome, was outside the law (things and the ways in which they were used) now becomes its essential content: what is outside of law becomes inside, indeed becomes the heart and soul of law. The modern form of rights inscribes the natural and thereby the pre-juridical into law.
Modernity calls a right a claim or a power because it is the claim to realize claims, the power to exercise power. Rights are (juridical) claims to (natural) claims, the juridical authorization of natural power.
Right to the Extra-Juridical
We now begin to see why the distinction between the two usages of the term “right” [Recht] – right as law [Gesetz] and right as claim – is so crucially important for legal thought on its way to modernity. Since Ockham, right has been defined in a new way. This does not simply consist in the insight that we should distinguish between legal claim and juridical law, because there is at least one type of laws whose purpose is to define claims. This insight is as old as the institution of private or civil law [Privat- oder Zivilrechts], since we are here concerned with claims that one person is entitled to make vis-à-vis another person under a law [Gesetz] that is valid for both. In making the distinction between legal claim and juridical law, modern theory since Ockham has instead defined the legal claim, as well as how claim and law interact, in a fundamentally new way. Indeed, it has fundamentally redefined how law’s [Rechts] normativity is to be understood in general.
In Athens, as in Rome, “a right” indicates a claim that one person has over against another as regards his own fair share in some matter. As in Athens, this fair share can be understood to mean that, in exchange for their own work, a person receives a share in another’s work that is proportionally commensurate to the politically determined significance of their respective work and activity for the community. Alternatively, as in Rome, the fair share can be understood to mean that both persons are free citizens who are equal to each other, insofar as both are patriarchal owners with mastery over their portion of people and things. As different as Roman equality 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
