Critique of Rights by Christoph Menke

Author:Christoph Menke [Menke, Christoph]
Language: eng
Format: epub
ISBN: 9781509520428
Publisher: Wiley
Published: 2020-03-30T00:00:00+00:00

As the Jacobin draft constitutions show in an exemplary manner, the opposition between the possessive-individualistic conception of property and the social-participatory one, as wealth of “means” necessary for life,60 is governed not by the logic of historical sequence but by a logic governing the political struggle between simultaneous conceptions of law (which were successful to different degrees at different times).

In conceptual terms, this historical thesis entails that the right to social participation does not break, but is in conformity, with the bourgeois form of subjective rights. For the right to social participation results from the legal authorization of the subject’s self-will (under the further premise that self-will is not merely a matter of choosing ends, but is evaluatively oriented to means [first step], and that means are social and hence must be appropriated through participation [second step]). This is why even social participatory rights are subjective rights, based on the subject’s private self-will: that, how, and to what end the subject wants wealth through social participation is just as much a matter of her own self-will as is the free choice of her goals. Social participatory rights are rights to social participation in one’s own self-willed interest – rights to private wealth through social participation. What is at stake in social participation is the obtaining of private wealth through social participation. To have private wealth means nothing but ensuring that one is able to realize one’s own interests (and interests are evaluatively oriented to means). The basis of property remains the same in wealth as a social participatory right as it is in right [Recht] as a private sphere controlled by choice. Even the private right to social participation is only a legalization of the fact that the subject wants this.

The theoretical and practical critique of possessive individualism gives rise to the concept of social participatory rights. In doing so, it also operates on the basis of bourgeois law [Recht]: it is operative in the form of subjective rights. Possessive individualism is only one possible ideological interpretation of this form, but not its essential feature. Individualism of the will: the positivism of self-will – this alone is essential for the form of subjective rights. If the critique of possessive individualism understands itself as a critique of bourgeois law as such, then it thereby misunderstands itself. The critique of possessive individualism remains on the surface of bourgeois law. It is only concerned with a transitory ideology of subjective rights. This ideology yielded an eighteenth- and nineteenth-century bourgeois liberalism defined by Locke’s conception of natural law.61 Bourgeois law can overcome this ideology (and in fact did overcome it in the twentieth century), without fundamentally changing itself in the process, since the fundamental basis of bourgeois law is – solely – the form of subjective rights. The goal of formulating a critique of bourgeois law that gets to the heart of the matter thus requires conceiving this form in a way that does not conflate it with one of its ideologies.

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