as the specific feature of modern law, to grasp its connection with the modern character of rights.
We will call this different understanding of modern legality the selfreflection of law. The relation between the form of law and the form of modern rights is not immediate, but mediated: it is mediated by law’s self-reflection.70
* * *
Modern law rules by restricting itself. It rules in such a way that, with its regulations, it validates the natural will’s choice. It validates the will prior to law’s regulation: this is the second definition of the modern character of rights. In substance (in performative or functional terms),71 it is opposed to the first definition – the first enables, the second permits – but it is a direct consequence of that definition. Permission is the other, negative side of how law positively enables the natural.
Spinoza formulates the juridical setting free of internality as the maxim that law may not rule in such a way that those who are ruled thereby cease to be human beings.72 Strauss and Schmitt follow him when they interpret the resignation of the sovereign in Hobbes’ theory as the birth of liberalism – thus taking liberalism at face value. In this case, setting the natural free from legal rule means setting the human being free from state rule: to understand the term “liberal” in such terms is to view law’s self-restriction (to the external as opposed to the internal) as the liberation of the individual. This is a misunderstanding of both legal permission and the liberal form of governance, however. The modern character of rights does not set the individual free from law, but sets internality, which cannot be regulated, free from legally regulated externality. The modern character of rights establishes the difference of inner and outer. It establishes this difference, however, in the individual (who thereby becomes a subject). Modern law’s externality becomes the modern subject’s internality: the modern subject must exercise law’s external governance of the natural will in (and by) itself. The modern subject must externally rule itself.
Modern law’s break with Greek paideia does not therefore mean – as a simple liberal interpretation supposes – freeing the individual from the claims of legal regulation. It never entails that law has no normative claim on the being or ontology of the legal subject. Now, however, this claim no longer means that the individual develops the disposition of justice and becomes moral. The claim of modern law on the subject now amounts to the claim that the subject will become able to internally maintain external rule over the natural – over itself as natural. It also entails that the subject acquire power over itself to split itself into legal volition and natural volition, so that its legal volition simultaneously restricts and sets its natural volition free. In other words, modern law no longer educates, but disciplines.73 It does not transform the individual’s nature, which is governed by law [Gesetz], into a virtuous disposition, but produces the subject of self-discipline: the subject who can itself govern its own nature.
Notes
1 1. Aeschylus, “Eumenides,” line 691, in: Aeschylus, vol. II (London: William Heinemann, 1926), 339. Cf. Christoph Menke, Law and Violence: Christoph Menke in Dialogue, trans. by Gerrit Jackson (Manchester: Manchester University Press, 2018), 17–22.
2 2. Aeschylus, “Eumenides,” 321 (lines 522–7).
3 3. Aristotle, Nicomachean Ethics, trans. by H. Rackham (Cambridge: Harvard University Press, 1934), 263 (book V, 1130b) [C.M. – my italics].
4 4. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).
5 5. Werner Jaeger, Paideia: The Ideals of Greek Culture, vol. I, trans. by Gilbert Highet (Oxford: Oxford University Press, 1945), 113.
6 6. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).
7 7. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).
8 8. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).
9 9. Pierre Aubenque, “La loi selon Aristote,” Archives de philosophie du droit, 25 (1980), 147–57, here 150.
10 10. Aristotle, Nicomachean Ethics, 259 (book V, 1129b).
11 11. Aristotle, Nicomachean Ethics, 261 (book V, 1130a). For this reason, Michel Villey speaks of Aristotle’s distinction between law and “morality” and therefore of the “autonomy” of law (Villey, La formation de la pensée juridique moderne, ed. by Stéphane Rials [Paris: Quadrige/PUF, 2006], 84f.).
12 12. Aristotle, Nicomachean Ethics, 73 (book II, 1103a–b).
13 13. Aristotle, Nicomachean Ethics, 73 (book II, 1103a).
14 14. Aristotle, Nicomachean Ethics, 391 (book VII, 1147a).
15 15. Aristotle, Nicomachean Ethics, 391 (book VII, 1147a).
16 16. Aristotle, Politics, trans. by H. Rackham (Cambridge: Harvard University Press, 1944), 605 (book VII, 1333a). For more on education via law, see also Nicomachean Ethics, book V, 1130b, and book X, 1180a.
17 17. Jaeger, Paideia, vol. I, 118. According to Aristotle, only law provides the authority required for education: “Now paternal authority has not the power to compel obedience, nor indeed, speaking generally, has the authority of any individual unless he be a king or the like; but law on the other hand is a rule, emanating from a certain wisdom and intelligence, that has compulsory force. Men are hated when they thwart people’s inclinations, even though they do so rightly, whereas law can enjoin virtuous conduct without being invidious” (Aristotle, Nicomachean Ethics, 635 [book X, 1180a]).
18 18. All members of the family – wife, children, slaves – are thus subject to the male head of the household. “They are not ‘sui juris.’ That does not mean that they are actually unprotected by ethical rules or precepts of Roman religion” (Michel Villey, Le droit roman [Paris: PUF, 1964], 55). These ethical-religious rules are later adopted as law: “But at the present day no persons under our rule may use violence toward their slaves, without a reason recognized by the law, or ever to an extreme extent. [ … ] as it concerns the public good, that no one should misuse his own property” (Justinian, The Institutes of Justinian, trans. by Thomas Collett Sandar [London: Longmans, Green, 1878], 28 [I.8.2]).
19 19. Cicero, On the Commonwealth and On the Laws, ed. and trans. by James E.G. Zetzel (Cambridge: Cambridge University Press, 1999), 111–12 (I.18– 19) [Tr. – translation modified to reflect the German edition that Menke refers to here, which provided the Greek and Latin terms in brackets].
20 20. Cicero, On the Commonwealth and On the Laws, 134 (II.13).
21 21. Cicero, On the Commonwealth and On the Laws, 133 (II.11) [Tr. – translation modified to include the Latin in brackets, in keeping with Menke’s German edition].
22 22. Martin Heidegger, Parmenides, trans. by André Schuwer and Richard Rojcewicz (Bloomington: Indiana University Press, 1992), 40. Without explicitly referring to Cicero, but with clear references to his formulations, Heidegger writes: “In the essential realm of the ‘command’ belongs the Roman ‘law’, ius” (40). Heidegger sees here a feature shared by the Roman and Jewish conception of laws. In contrast, “The gods of the Greeks are not commanding gods but, rather, ones that give signs, that point” (40). This recalls the young Hegel’s thesis that Greek law is being, not something established. For more on this, see Christoph Menke, “Hegel’s Theory of Liberation: Law, Freedom, History, Society,” Symposium, 17.1 (2013), 10–30.
23 23. Cicero, On the Commonwealth and On the Laws, 111 (I.18).
24 24.
