opens law up to the non-legal. Rights are situated at the limit of law.2 The modern form of rights expresses a fundamental upheaval in the ontology of law. If all law is defined by the difference between form and matter, modern law is the materialist self-reflection of its form, establishing the difference between law and non-law within the law.
3 The bourgeois form of rights is law’s self-reflection in the mode of its denial. This constitutes the positivism of bourgeois rights, namely that they reify law’s non-legal substance into something positively given. Bourgeois rights authorize the subject’s private self-will and thereby engender bourgeois society’s new forms of domination.
4 A new revolution of rights that breaks with their bourgeois form must overcome their positivism: it must carry out the self-reflection of modern law [Rechts] dialectically. It thus establishes a new right [Recht]. The dialectic of activity and passivity in political judgment forms its basis: new right is the right of counter-rights.
This book will proceed by combining historical description and conceptual argumentation. On the one hand, it is a matter of grasping bourgeois law [Recht] today through readings of relevant texts. On the other hand, it is a matter of clarifying the basic concepts of the philosophy of law and developing them dialectically. The description of bourgeois law is prominent in parts I and III: part I explicates the historical difference between the classical and modern conception of rights; part III examines the ideological presuppositions and social consequences of their bourgeois form. In contrast, parts II and IV foreground conceptual reflection: part II analyzes the relation of form and matter that is constitutive of law, and elucidates the concept of its modern self-reflection; part IV outlines a theory of the judgment that establishes rights by reflecting on the structure of political subjectivity. The social-historical description of bourgeois law and the conceptual unfolding of the dialectic of law are distinct projects. However, they refer to each other. Their connection is the critique of rights.
Notes
1 1. [Tr. – The adjective bürgerlich will generally be translated in what follows as “bourgeois,” though in some contexts it will be rendered as “civil,” e.g., when modifying Gesellschaft (“civil society”), since there is precedent for this in Menke’s citations of Hegel and Marx. The German word Recht can mean either “law” or “right.” In what follows, it will generally be translated as “law” except where “right” seems necessary due to context. The plural of Recht – Rechte – will generally be translated as “rights.” “Rights” or “a right” (ein Recht) refer to the subjective dimension in which rights are individual claims, while “law” or “right” without a definite or indefinite article [Recht] denotes the objective dimension in which “right” is a system of laws. The former involves the imposition of an obligation by one person upon another, while the latter is an “objective rule of law.” Gesetz will also generally be translated as “law” with the German in brackets.]
2 2. Karl Marx, “On the Jewish Question,” in: Marx and Engels Collected Works, vol. 3 (London: Lawrence & Wishart, 2010), 146–74, here 164.
3 3. And in which the “destiny” of human beings “to lead a universal life” is fulfilled (G.F.W. Hegel, Elements of the Philosophy of Right, trans. by H.B. Nisbet [Cambridge: Cambridge University Press, 1991, 276 [§ 258]).
4 4. Marx, “On the Jewish Question,” 165.
5 5. Marx, “On the Jewish Question,” 165.
6 6. Marx, “On the Jewish Question,” 166.
7 7. Marx, “On the Jewish Question,” 166 and 153 [Tr. – translation modified].
8 8. In Hegel’s sense of the word: as the “authority [Macht] of the universal that guarantees security” in civil society (Hegel, Elements of the Philosophy of Right, 260 [§ 231]). For Hegel, “police” means politics that maintain and secure civil society – thus the police are no longer “sovereign,” as they were in the (late-absolutist) “police state,” which claimed to rule society as a whole (Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, trans. by Graham Burchell [London: Palgrave Macmillan, 2008], 7).
9 9. This thesis stands in strict contrast to a critique of rights that only recognizes content. Contra Marx, Duncan Kennedy formulates its basic thesis as follows: “[T]here is no more a legal logic to Liberal rights than there is an economic logic to capitalism” (Duncan Kennedy, “The Critique of Rights in Critical Legal Studies,” in: Wendy Brown and Janet Halley [eds.], Left Legalism/Left Critique [Durham/London: Duke University Press, 2002], 178–227, here 216). The only thing then left to say is that “Rights just means rules in force to protect particular interests” (210). What Marx writes in his critique of bourgeois economy holds for critical legal studies: “it has never once asked the question why this content takes on that form” [Tr. – translation modified] (Karl Marx, Capital, vol. 1, in: Marx and Engels Collected Works, vol. 35 [London: Lawrence & Wishart, 1996], 91f.). Sonja Buckel argues along these lines in Subjektivierung und Kohäsion: Zur Rekonstruktion einer materialischen Theorie des Rechts (Weilerswist: Velbrück, 2007), 226.
10 10. Marx, “On the Jewish Question,” 153.
11 11. The legitimate objection to the contrary is that, with the critique of the egoism of rights, Marx merely reproduced a specific historical ideology of rights that is unnecessary for its (bourgeois) form. Cf. Jürgen Habermas, “Natural Law and Revolution,” in his Theory and Practice, trans. by John Viertel (Boston: Beacon, 1973), 82–120. See also Claude Lefort, “Human Rights and Politics,” in: The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, trans. by Alan Sheridan (Cambridge: MIT Press, 1986), 239–72.
12 12. For preliminary thoughts on this, see Christoph Menke, Reflections of Equality, trans. by Howard Rouse and Andrei Denejkine (Stanford: Stanford University Press, 2006). In my earlier studies of the critique of law I did not make the necessary break with liberalism clearly enough; cf. Christoph Menke, “From the Dignity of Man to Human Dignity: The Subject of Rights,” in: Values and Norms in the Age of Globalization, ed. by Ewa Czerwińska-Schupp (Bern: Peter Lang, 2007), 83–94. For a first step in this direction, see “Subjektive Rechte: Zur Paradoxie der Form,” in: Nach Jacques Derrida und Niklas Luhmann: Zur (Un-)Möglichkeit einer Gesellschaftstheorie der Gerechtigkeit (Stuttgart: Lucius & Lucius, 2008), 81–108.
13 13. Karl Marx, “Contribution to the Critique of Hegel’s Philosophy of Law,” in: Marx and Engels Collected Works, vol. 3, 3–129, here 91.
14 14. Karl Marx, “On the Jewish Question,” 167 [Tr. – translation modified].
Part I History: The Legalization of the Natural
Here we find ourselves in the “Copernican” moment of the history of the science of law, at the boundary between two worlds. A new social order is born, whose nucleus will become an individual right that is developed entirely from the concept of potestas, elevated to the dignity of a right.1
Modern legal theory and philosophy of law were the first to speak of rights that belong to the individual and which the individual can exercise for his or her
