Critique of Rights. Christoph Menke
since it also includes the capacity for a sham virtue, the enacting of feigned virtue – the virtue-less accomplishment of virtuous deeds.
The lawfulness of law [Gesetzlichkeit des Rechts] is defined by its limitation to deeds, and thus defined by its ignoring of disposition. For Aristotle, however, this is a matter simply of the modality of legal rules and their fulfillment, but not of their meaning. It is a matter of their “how,” but not their “why.” The legal rule refers to virtuous deeds, but it aims at disposition. Law [Recht] links deeds and disposition in the same way that education does:
The virtues … we acquire by first having actually practised them, just as we do the arts. We learn an art or craft by doing the things that we shall have to do when we have learnt it: for instance, men become builders by building houses, harpers by playing on the harp. Similarly we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts. This truth is attested by the experience of states: lawgivers make the citizens good by training them in habits of right action – this is the aim of all legislation, and if it fails to do this it is a failure; this is what distinguishes a good form of constitution from a bad one.12
Education signifies habituating ourselves to act in certain ways so as to give rise to a disposition that is realized in these actions, whose deeds are these actions. Actions and deeds therefore precede disposition: “The virtues … we acquire by first having actually practised them.”13 Education is a process that leads through actions to capabilities and dispositions. The creation of an interior and one’s own necessarily proceeds through externality:
Persons in the states mentioned repeat propositions of geometry and verses of Empedocles; students who have just begun a subject reel off its formulae, though they do not yet know their meaning, for knowledge has to become part of the tissue of the mind, and this takes time.14
Moral education must proceed through the repetitive performance of deeds in order to create a virtuous disposition, just as a student learns by repeating words, by speaking them as though he would and could speak them – such students “talk in the same way as actors speaking a part.”15 An external rule and its externally repeated fulfillment in actions where we feign action are required to complete the process of education.
This is precisely where we can situate the Greek conception of law: law is the sustained moment of externality through which every educational process must proceed. The Greek conception of law is pedagogical: “it will be important for the legislator to study how and by what courses of training good men are to be produced, and what is the end of the best life.”16 Law is an authority for moral education. On the Greek view, this orients and thus justifies law’s externality, including the violence that it uses and the fear that it provokes. Law has an “educational mission.”17 Its “lawful” human being is the incipiently virtuous human being.
2 Rome
While the telos of Greek law is education in virtue, an essential feature of the Roman conception is to stretch the link between law and virtue so much that the externality of law obtains a positive existence. Roman law also presupposes “moral rules or Roman religious rules,”18 but it no longer views law [Recht] itself as able to create morals – certainly not all by itself, as Aristotle thought.
Cicero thus describes the difference between the Roman conception of law [Gesetz] and that of the “great philosophers,” and therefore of the Greeks, as follows:
Philosophers have taken their starting point from law [a lege] …, they think that its name in Greek [nomos] is derived from “giving to each his own” [nemein], while I think that in Latin [lex] it is derived from choosing [legere]. They put the essence of law in equity, and we place it in choice [delectus vim]; both are attributes of law.19
Cicero views choice as the normative act of distinguishing between right and wrong (“Law, therefore, is the distinction between just and unjust things”)20 and emphasizes how it tends to both establish and command. Law does not already exist, it does not have being, but is made or must be made. Thus “it should be clear that in the interpretation of the word ‘law’ itself there is the significance and intention of choosing something just and right [vim et sententiam iusti et iuris legendi].”21 The content of law is justice and the dictum its mode of being: it operates with the power to establish.
According to Cicero, law’s power to establish is not subjective or arbitrary at all. On his view, the command indeed defines law’s effect, but not its creation. The Roman understanding of law does not consider the command to be “the basis of the essence of domination,”22 as Heidegger thought. For the basis of law is reason. If, in the question of the “principles of right,” the “great philosophers” have taken law as their starting point, then according to Cicero they did this on the justified assumption that “as these same people define it, law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established in the human mind, it is law.”23 The sequence of steps leading from the nature of right to its reason and then to its law runs as follows:
Those who have been given reason by nature have also been given right reason, and therefore law too, which is right reason in commands and prohibitions; and if they have been given law, then they have been given justice too. All people have reason, and therefore justice has been given to all.24
Right as law is establishment, command – and, at the same time, it has been given to all people through their “right reason” (because “we are born for justice and … justice is established not by opinion but by nature”25). How are these claims supposed to be compatible?
They are no longer compatible as they were on the Greek conception. For the Greeks, there was one perspective on the political governance of the community, from which law’s justice (as distributive) was able to be thought together with its externality (as educative). This is the political “synthesis of reason and subjectivity, of nature and artificiality” in the moral-pedagogical conception of law.26 In Rome, on the other hand, with Cicero, the two aspects of law [Recht], that it is established and natural, a command and something reasonable to do, are associated with different perspectives, are given different roles, personae. To be sure, Cicero also firmly declares that “law ought to correct vices and encourage virtues.” As a result, “the knowledge of how to live should be drawn from it.” The “function of law” is “to persuade rather than to compel all things through force and threats.”27 This education, however, does not take place through law [Gesetz] in its juridical manifestation, as establishment or command. It occurs due to its natural-rational basis or content, and happens outside of the institution of law [Recht]: in the philosophical contemplation of law. Philosophy, as “parent and teacher” of the human being who comes to know himself [sich selbst erkennenden], is oriented to the “eternal law” that is prior to any “written” one.28 Law has morally educative power only if, and insofar as, philosophy is able to recognize [wiederzuerkennen] what is natural and not established in law that has been established. “When [reason] in a human being … is brought to maturity, [it resides] in the mind of wise men:”29 mere law, if it exists for itself and remains unconceptualized in a philosophical sense, is mere establishment, mere command.
Cicero’s linking of law’s rational content to philosophical awareness [Erkenntnis] gives its externality a different sense than it had on the Greek model. Its externality is no longer viewed as transitory, as the moment in which education is passed on, but is understood in perspectival terms. The externality of law is now its necessary mode of appearance – law as it appears from its own perspective. The sublation of law’s externality becomes one-sided: it only happens in the special (in a twofold sense) perspective of philosophy. Conversely, externality persists in law’s operation itself. Natural reason manifests