Who proposed modern periodic law
1For about two decades, the erosion of state sovereignty has been widely commented on by political scientists as well as sociologists and lawyers.1 On the other hand, political philosophy hesitates to ponder the implications for itself. In its modern form, which developed from the contract theories of the 16th and 17th centuries, it is taken for granted that the state represents the modern form of the political community and accordingly forms the framework within which the questions that are traditionally due to it are to be dealt with : Administration of justice, public welfare and the conditions of legitimacy of power. The contemporary debates between liberals, communitarians and republicans do not question this framework; tentative outlooks on international or cosmopolitan perspectives or the current burning question of the status of foreigners are either discussed on the sidelines2 or reflected on the basis of a possible redefinition of the requirements of citizenship, which nonetheless remains statistic, i.e. national.3 Even if an extensive one Literature today documents the weakness of this exclusively nation-state conception of citizenship, philosophers seem to be afraid that with their task they will also lose the familiar ground on which they know how to orient themselves and then have to wander around in unknown terrain without a compass. One of the goals of the following pages is to invite you to overcome this inhibition. Modern philosophy has undoubtedly been a philosophy of the sovereign state; However, it gives us the means to think about the prerequisites of politics after the end of the state monopoly of power. To do this, however, the philosophers have to re-read their tradition. The following should only be referred to here: It is a matter of re-establishing the forgotten alliance between political philosophy and legal philosophy (1.).
2Under this prerequisite, the philosophers are able to make a not inconsiderable contribution to all those disciplines that reflect the contemporary processes of change in society, politics and law. In the following, legal sociology (represented by Max Weber) and legal theory are given special attention. The intersection of all texts on which we rely is the concept of "subjective law". Against the disrepute which this term has fallen into with most jurists and certain philosophers4, the thesis is advocated here that the legal subject represents the modern figure of the political subject: a subject who is not natural but rather in the historical Development of modern liberal democracies has emerged (2.). If the re-reading of the corpus of modern political philosophy allows a rehabilitation of the figure of the legal subject, with which it moves to the center of our understanding of modern democracy, then the detour via the sociological and legal debates about the concept of subjective rights will enable us to create the prerequisites to name for a strict handling of this figure of thought. Strictly speaking, there are rights only if they are guaranteed by an authority (3.). This power instance used to be the state as the exclusive interlocutor of the person claiming rights. With the erosion of state sovereignty, which goes back in part to the voluntary transfer of national powers to supranational authorities, but also to the emergence of new polymorphic authorities that autonomously produce legal or quasi-legal regulations, this exclusive status will be put to an end. The uncertain fate of the political subject will henceforth be decided in the non-hierarchical space created by these new instances of power (4.).
3Since the 17th century, political philosophy had linked itself to the philosophy of law through contract theories, until it was then merged with this in Kant and Hegel. What is commonly regarded as Kant's political philosophy is nothing more than an appendix to his philosophy of law; Just as Hegel's political philosophy is presented as a philosophy of law which, in its subtitle, links natural law and political science.5 This connection broke apart in the second half of the 19th century, and the break was intensified in the 20th century. Liberal political philosophy has always referred to the law as a barrier against abuse of power and viewed this barrier as a criterion for distinguishing between legitimate and illegitimate exercise of power. But the ideological-political context from which she understood her analysis of liberal institutions primarily as their defense against the dangers of collectivism or totalitarianism, which some suspected in nucleo were already contained in the demand for social justice6, it has neglected the strength of political philosophy of the 17th to 19th centuries: in its reflection on the contribution of state law to the development of the specific character of modern political subjectivity. This neglect could not be corrected by critical philosophy; Under the influence of Marxism, this has focused its attention essentially on the logic of the economic and social and shortened the right to the status of an instrument of power or to the reflection of power relations that develop essentially outside the law. In its liberal as well as in its critical variants, the political philosophy of the twentieth century misunderstood the central duality of the political philosophies of the previous centuries, which linked the question of power and that of rights. From this point of view it is significant that the modern theories of sovereignty were read primarily as theories to legitimize state power, and not as what they were: theories that guarantee the rights of the individual within the framework of a logic beyond that The logic of the class privileges. The topic of the "constitutional state", which reappeared among some philosophers at the end of the last century - an undoubtedly older term, but which for a longer period only interested jurists or, however, exclusively in Germany, the forerunners of sociology7 - did not suffice to re-establish lost ties between political and legal thinking.
4What is it like today? At the present hour, a practically unquestioned agreement has endorsed the virtues of democracy. Democracy is the name for the good form of government. The only question is what is meant by that. The variety of interpretations corresponds to a different value that is accorded to the law in determining the nature of democracy. Some tend to simply equate democracy and the rule of law.8 It is not always perceived that this equation drastically modifies the original meaning of the word democracy. While democracy was a form of government for ancient philosophy, that in which the people really exercise power, the people in democracy, which is understood as a limitation of power through law, only finds its way as an abstract unit from which power ostensibly derives its legitimacy . This type of legitimation has a number of institutional consequences, most notably political rights that allow the people to elect their leaders.9 But as Benjamin Constant pointed out very aptly: a people of voters does not rule - if it is "too stipulated, but rarely "exercises its sovereignty," then only in order to forego it ".10
5 Even if the experience of totalitarianism, especially of the Soviet variety, has made obsolete those problems which have contrasted formal and real, political and social democracy as indissoluble contradictions - critical thinking has thus not given up its biases against the law. 11 Certainly Most of the authors belonging to this trend are ready to admit that a good government must accept "civil" freedoms such as freedom of expression, freedom of assembly, and so on; But they do not want to come to terms with the fact that democracy is reduced to the rule of law, understood as the rule of civil liberties and political rights that are limited to the right to vote and stand for election. Beyond the great differences between authors such as - to name just a few - Lefort, Rancière and Negri, they are united by a common conviction: the concept of democracy must be rethought, just as its reality is sought in other than political practices in its conventional meaning got to. For these authors, democracy is not only not a mode of government or a form of government12, it is also not a restriction of power through the law, guaranteed by the most minimal political rights, namely the right to vote and stand for election. The reality of democracy does not lie in administering or, as it is called today, in governing, but rather in continually questioning it. Democracy is a movement, the uncoordinated movement of diverse forms of questioning institutionalized instances of power - and thus also of the law, which is always suspected of being merely an instrument of existing power.
6 Michel Foucault expresses the prejudice probably shared by an entire critical tradition of political philosophy when he equates law in general with the "royal right of command" 13 and thus sees in the "legal subject" nothing other than that subject that, supposedly in possession of natural rights , is ready to renounce that which accepts "the renunciation of oneself" in order to enable the formation of the sovereign state.14 From this point of view, the law only appears as a mask of power; whose reality consists in domination - a reality which the theory and technology of law have to disguise as an essential function.15 Inevitably, such an interpretation of law prevents us from seeing in it one of the factors that have contributed to the shaping of modern subjectivity. Even if Foucault never claimed that his analyzes belonged to political philosophy, his work has exerted considerable influence on certain areas of contemporary political philosophy. Last but not least, it is largely responsible for the fact that the modes of subjectivation, of becoming subject, have found their way into political philosophy; just as Foucault, perhaps without his wanting to, radicalized the argument of the critics of the fiction of natural law by calling for freedom and power to be viewed as mutually determining. Nonetheless, his extremely reductionist conception of law prevented him from drawing the conclusions from his criticism of the "repression hypothesis" that would enable the struggle for rights to be accorded the status it deserves in the forms of subjectivation typical of the modern individual
From the preceding, however summary, the central statement of the following pages can be determined: I advocate a new alliance between political philosophy and the discourses on law, by which I mean both the legal theories and the sociology of law. On the part of the sociology of law, I will look to Max Weber for the instruments with which the understanding of the interrelationship between law and power can be updated in an original way. If Weber's legal sociology seems to be recommended to contemporary political philosophy, it is because - regardless of the well-known "statism" of its author - it proposes a definition of law that allows non-statist law to be thought of.
8The main problem with which political philosophy is confronted at the beginning of the 21st century is in fact not only to conceptualize democracy in a new way, but to conceptualize it as the totality of the phenomena, the legal and the political , Which together with the economic phenomena with which they go hand-in-hand make up what is understood by the concept of globalization, one of the decisive aspects of which is the erosion of the state's legal monopoly. By understanding democracy as a movement and no longer just a form of state or government, critical political philosophy maintains the fact that democracy can only be adequately grasped in its history. Which means: not as the product of this history, but as this history itself, as the history of the practice of democracy, which since the epoch of the inaugurating revolutions has been a process of institutionalization and questioning of institutions that has never come to a standstill. This reality - that of modern democracy - not only presupposes, as Claude Lefort has long since emphasized17, a change in the concept of politics, but also a change of anthropological scope. Because it breaks with the rigid identities or, more precisely, it leads to the dissolution of statutory affiliations within the framework of Western history. The modern subject is not political because it exchanges a statutory identity for a civic identity which, according to the assumption, it shares with "everyone" (as we know, it is always a matter of a particular universality that the citizen of a state has). It is political insofar as his identity is defined on the basis of rights that are not established once and for all, but rather are acquired in struggles not against the institution as such, but against the fossilization of the institution.
9This last consequence of the historical character of the modern political subject is obscured by a statistically fixed political thinking. As long as political subjectivity is interpreted in terms of national citizenship, it remains a form of communitarian affiliation and preserves something statutory. In a sense, contemporary political and legal changes complete the process that began with the abolition of estates and privileges. Even today to think of democracy exclusively in the context of the state means to think it incompletely and at least anachronistically and to expose yourself to insurmountable aporias if the question of foreigners or supranational or transnational authorities and institutions is raised.
From Weber to Hobbes
10With Weber's political sociology, the law can be detached from its narrow statist meaning. Here I would just like to briefly present the results of the analysis that I have developed elsewhere.18 Weber's political sociology is indisputably a sociology of the state in the sense that Weber in the modern sovereign state with its monopoly of legitimate coercion is the perfect shape of the political community and has not considered an beyond the state. However, this understanding of the state is inscribed in a mutually dependent history of political communities and law, which presupposes a further legal concept that includes its strictly statist meaning and at the same time goes beyond it. Dismissing himself from the common agreement of the jurists of his time, Weber suggests sociologists as well as historians a definition of law in relation to which the statistic law represents only an isolated case. This further meaning applies to objective law as well as subjective rights. In relation to the former, Weber records "the existence of a coercive rod" as the decisive element. And then goes on: “Of course, this does not have to resemble what we are used to today. In particular, it is not necessary for a 'judicial' instance to be present. «19 Weber's concept of 'subjective law' has been developed strictly parallel to this. A person has a 'subjective right' if he '(has) the chance, which is actually guaranteed by the meaning of a legal norm based on consent, to obtain the help of a' coercive apparatus' for certain (ideal or material) interests ”.20 This presupposes the possible distinction between "subjective [m] law in the 'state' sense of the word," which is "guaranteed by the means of state authority," and "'extra-state' law", where "means of coercion other than political Violence is in prospect «- Weber mentions hierocratic violence as an example
If the extensive conception of law proposed here is taken as a basis, the modern state appears as the result of a process in which a certain type of community - thereby also elevated to a political community par excellence - acquires the monopoly on the exercise of legitimate coercion at the expense of those different "legal communities" (feudal powers, estates, churches, cities, etc.) that once guaranteed their members particular rights, in other words privileges, i.e. statutory rights.In short, the modern state has put an end to anarchic pluralism - understood in the sense that the various "legal communities" did not form a hierarchical whole - a legal and at the same time political pluralism that represented the general prerequisite of the feudal system of the Occidental Middle Ages. The monopoly of the legal guarantee by the state went hand in hand with what Weber called "mediatization" of particular rights. Once this monopoly has been established, the rights that an individual can dispose of based on his or her membership in a particular community are only legitimate by virtue of the explicit or implicit authorization of the state. The modern state differs from all previous political communities in that it has demanded, and as a rule also achieved, "that these special rights only remain in effect by virtue of [its] authorization and therefore only insofar as [it] allows it". 22nd
12This "mediatization" of particular rights is interrelated with the individuation of the legal subject.23 The continuation of rights within the area of state power that are reserved for certain groups of individuals, or the creation of new such, ie statutory rights in connection with, for example, exercise Certain professions are no exception with regard to the universality of the law. The times are over when the individual carried his "legal profession" with him and on the basis of this "profession" made his difference to others, ie to those who made them Rights could not be used. The "personalized" law has disappeared in favor of the general law that applies to all residents of the territory on which state power is exercised (lex terrae). One of the strong theses of the long chapter from Webers economy and society, which is devoted to subjective rights, states that the emergence of the modern state has been accompanied by a profound change in the understanding of what rights are. From this perspective it is less important that elements of statutory logic can still be found in the complex functional structure of state societies. Insofar as particular legal spheres can only exist by virtue of the state, the only real legal subject is the individual as such, abstracted from his various affiliations to whatever type of community, be it family, profession, religious community, etc. This fundamental individualism in the modern conception of the legal subject has been perceived and pointed out by the least liberal theorist of modern sovereignty, Thomas Hobbes.24 In this regard, an often neglected chapter of the Leviathan, the 22nd, highly instructive. In this chapter entitled "Of Systems Subject, Political, and Private", Hobbes states that temporary or permanent bodies other than the state can only be established through explicit (written) or implicit authorization by the "Sovereign violence" can legitimately exist. With the consequence that the individual always retains the ability to renounce it, be it in the case of a loan contractually stipulated by such an association, where it is “not only lawful but also expedient for an individual, against the resolutions of the representative assembly to protest openly ", be it generally in any dispute where an individual member confronts a single" political body "and it falls to the sovereign (the state) to judge, and never to the individual body itself.26 This analysis leads to the conclusion that that - contrary to Foucault's claim in the passage already quoted - the legal subject of contract theories is not the "subject who accepts negativity, who accepts self-renunciation" 27, but rather the subject who is determined by all statutory determinations freed and in this same pure isolation, rights-aware individual conquered himself.
Subjective rights and natural law: two contested terms
13 Michel Villey, a sharp critic of the figure of the "legal subject", is not wrong in claiming that this figure is an invention of the modern world.28 This historical definition is not a sufficient argument to deny its relevance, unless it is not , one defended an unchangeable, ie essentialist conception of the legal (which exactly applies to Villey). Linked to the critique of the figure of the legal subject is that of the concepts of subjective law and natural law (in the modern sense of rights connected with human nature). As is well known, the last two terms mentioned have appeared suspicious, even unacceptable, to numerous legal theorists, including the most important. As far as the concept of "natural law" is concerned, criticism was unanimous for a while: Georg Jellinek, Léon Duguit and Hans Kelsen alike rejected it, albeit with different arguments. The concept of rights of the individual is unthinkable outside the framework of the state (Jellinek, Kelsen) or society (Duguit). It is doubtful, however, whether modern theorists of natural law were really as naive as their critics of the 20th century would have us believe. What the criticism of the jurists of the 20th century fail to recognize in their stigmatization of the idea of a natural law is the historical significance of the "naturalization" of rights. This expresses the individuation of the legal subject, which, as already noted, was only conceptually comprehensible in a constitutive relationship to that particular form of political power: the modern sovereign state. Because from the perspective of the state the individual can only have rights recognized in their bare singularity, and not on the basis of any statutory affiliation, these rights (or parts of them) can appear as "natural". The confusion of physical or more precisely physical-moral individuality and political individuality is the product of the erasure of statutory differences. In Marx's famous, generally socially and economically interpreted formulation that man is a living being that only isolates himself in society, there is, if you will, a political and legal truth. Contrary to what a superficial criticism ascribes to them, the theorists of "natural law" have not dreamed of an ahistorical human "nature"; Rather, they recorded the anthropological consequences of a decisive historical change: From now on, political individuality is no longer defined by belonging to natural communities (as Aristotle's communities were), but by their relationship to a single power that is the same for all, who approve or deny their rights, which make up their entire political reality, as the case may be.
With regard to the concept of subjective law, the criticism of the great legal theorists of the first half of the 20th century is less unanimous; in their differences of opinion, the different premises of their seemingly unanimous criticism of natural law come to light. Léon Duguit, for example, rejects the one and the other term; He does not accuse the doctrines of natural law of starting from the assumption that law is conceivable independently of the state, but rather to have determined its concept on the basis of the isolated individual. According to these doctrines, he asserts, law is a human property "grasped in a state of absolute isolation, without any relation to his own kind." 29 Notwithstanding this, he advocates the thesis that the consistency of the concept of law cannot be traced back to him Guarantee granted by the state ("Man conceived the law before he conceived the state and not the state before he conceived the law" 30), since otherwise it would be impossible to restrict the power of the state through the law . The core of the truth of the doctrines of natural law rested in their intention, the limitation of power, their weakness in their individualism. This allowed them to justify the negative duties of the state (the rights of freedom), but not the positive duties (social rights) that also fall to the modern state.
With the thesis that the law is older than the power of the state, and with reference to a solidaristic conception of law inspired by Durkheim (the law is a rule of behavior, not a property of a subject), Duguit wanted to break away from the German doctrines (Hegel, Laband, Ihering, Jellinek), whom he accused of equating law and state coercion and thus excluding the limitation of power from the realm of the conceivable. At first glance, it seems paradoxical that he extends this criticism to Jellinek, who was indeed a theorist of subjective rights, but shared with Duguit the will to subject the state to the law. Duguit's accusation against his German contemporaries is that at the same time they granted the state the status of a legal subject and thus continued, in a more subtle version, the personification of the polities, even the hypostatization of the state, which their predecessors had pursued in organicistic or historicistic form. According to Duguit - who, as can be seen, is very far removed from the conventional axiomatics of liberal thought - there is a close connection between the concept of subjective law and the hypostatization of the state.
16Jellinek belongs to the German tradition so vehemently attacked by Duguit, insofar as the legal concept for him is tied to coercion or, more precisely, to the state guarantee.31 At this point he diverges from the doctrines of natural law (to which he concedes the rights solid on the to have founded human nature), whose criticism, however, seems less important to him than Duguit. As is well known, Jellinek was close to Weber; How closely their conceptions of law and state resembled one another is shown by the historical considerations from which Jellinek developed his legal theory: law, he conceded, was certainly not always a matter for the state, but it is evident in the history of the modern Occident how the state progressively pulls into itself all the means of power of the subordinate collectivities; at the end of this process, the state is "the sole holder of command." 32 In the words of Jellinek, quoted by Duguit:
“As a result, not all legal education, but the legally regulated legal protection, becomes a matter for the state. The judicial power passes exclusively into his hands, and all jurisdiction is therefore ultimately either his / her or borrowed from him. With this, it finally becomes the state's right to regulate all law applicable within its limits, so that in the modern state all law is broken down into state-created and state-approved law. "33
However, Jellinek has devoted the main part of his scientific work not to this prehistory of the modern state, but to the requirements of its purely legal intelligibility. For me, the main interest of his approach is that he separates the concept of subjective rights from the fiction of rights resulting from human nature. In his own way, Jellinek has again brought up the ultimately central problem of contract theories (modern theories of natural law): the correlative proof of the legitimacy of the legal monopoly of the state and of rights theIndividual.
In Kelsen's work, too, there is a criticism of the concept of subjective law in connection with that of natural law. His criticism of the doctrines of natural law is certainly initially guided by the intention of asserting the strictly positive (and for him scientific) character of pure legal theory. Their positivism implies keeping away any "ethical-normative" point of view: this theory deals with the form of law, i.e. the logic of law, understood as a system of norms, and not with its content. Kelsen insists on this, particularly with regard to the interpretation of the "basic norm," the term he introduces as the final principle of a system of norms that allows it to be thought of as a legal order.34 The basic norm is the transcendental condition of the legal interpretation of law, it has only an "epistemological function" 35 and is not a criterion for a clear distinction between just and unjust legal systems. It cannot be confused with a theory of natural law which, if it is consistent, must seek the basis of the validity of positive law "in a natural law different from positive law." more generally, the figure of the legal subject. The link between the ethical-normative function inherent in natural law theories and the concept of subjective law is the postulate that pre-judicial entities can in one way or another exert constraints on the objective order of positive law. This postulate is shared with the theories of natural law by all theories of law that distinguish between subjective and objective law, whatever comes down to giving the former priority over the latter. Kelsen's argument has stood since Pure jurisprudence fest37, and he will do so until his last work, which appeared posthumously in 1979 General theory of norms 38 Against the "erroneous view of the primacy of subjective right over duty" 39 Kelsen objects that, from the point of view of a strictly positive theory of law, a subjective right not only presupposes a corresponding duty, it "is" rather "this legal obligation «.40
Theories of natural law are not necessarily theories of subjective rights (although Kelsen says nothing about this, the "ethical-normative" function of such a theory can be based on an overall view of the world order, with reference to a transcendent origin, without implying that the individual / subject has rights owns); but all legal theories that distinguish right and duty are heirs to the concept of natural law:
“The traditional view that law is an object of legal knowledge that is different from duty, that it even has priority over it, can probably be traced back to the doctrine of natural law. This is based on the assumption of natural, innate rights that exist before any positive legal order; and among which the subjective right of individual property plays a major role. According to this view, the function of a positive legal order (of the state) that ends the state of nature is to guarantee natural rights by stating corresponding duties. «41
Kelsen's starting point for the critique of the concept of natural law is obviously different from that of Duguit; the latter did not contest, but rather advocated the thesis that the validity of the law arises from realities that exist before and independently of state coercion. Kelsen did not accuse the natural law doctrines of their individualism, but of reversing the logical order of the concepts of duty and right. According to him, the legal substance of law (and there is no other) rests solely on duty. He does not completely reject the use of the term "subjective law" (out of linguistic convenience, not because it is indispensable for describing law), but only on condition that the antithesis between subjective and objective law is dispensed with. What is called "subjective right" is mostly a "reflex right", i.e. the interpretation of the duty which the legal norm sets from the point of view of the individual to whom another individual is obliged, whereby it threatens violations of this duty with punishment. The owner of subjective rights is not the real "legal subject" - provided one insists on this "personalistic language" which Kelsen himself distrusts42 - but the subject of legal obligation, ie the individual subject to it.43 Kelsen thus approves of the concept of subjective law independence compared to the concept of duty (subjective right in the "technical sense" 44) only in the very special case where certain legal systems allow the individual to initiate proceedings for the purpose of punishing those who have violated the duty and thereby harmed them Has.
The only aim of my brief excursion into legal theory was to point out that although the concept of subjective rights is hotly debated, it cannot be dogmatically dismissed as legal nonsense. However Michel Villey may have thought about it, this term can, as the example of Jellinek has shown, be decoupled from the hypothesis of a human nature that is fixed before any legal determination. One can say goodbye to the idea of an unchangeable human nature without having to forego connecting the universe of law with social and political realities that transcend it, even if it is one of its components. In order to be able to do this, however, it must be recognized that the legal institution, how essential it is for the existence of law as such (objective and subjective) also often, if not always, has the meaning of a recognition authority.One of the difficulties of Kelsen's position is that, by declaring any "source of law" other than the legal order of the state to be unsuitable, 45 and reinterpreting the concept of the legal subject so that it no longer denotes the holder of subjective rights, but that of the Duty subject, he at the same time excludes the idea that the right as recognition previous claims can be interpreted. What positive legal theory rejects is
»The idea of a legal system independent of the legal system [...], a legal subjectivity, which the right, be it in the individual, be it in certain collectives, so to speak, who find it only has to acknowledge and must necessarily recognize it if it does not want to lose its character as a 'right' ”.46
The unmistakable purpose of this text is the rejection of the idea that the legal institution restricts itself to the registration of given, i.e. unchangeably established rights, which the state, which is not differentiated from the legal system, advocates for the respect and guarantee of these rights. However, he also excludes a completely different thesis, according to which positive law, to the extent that it has become historical, initially only transforms claims that are present as claims into rights and thus expresses a social reality, the development of which is about determination the political and legal individuality of the human being.
Indeed, this thesis presupposes that account is taken of the historical character of the political subject, one of the epistemological premises of pure legal doctrine a limine excluded perspective. What Kelsen calls "legal dynamics," whereby the law is viewed in the continually renewed movement of his self-creation, is not history insofar as in each particular case the coherence of a positive legal order determines the forms of this constant creation. Kelsen was a democrat, but he conceptualized democracy as a mode of the creation of law, a legal system that institutionalized various forms of participation of the people in their own creation.47 Although he wanted to break away from the usual notions of democracy in this way, democracy as a government or define political form, he is not so far removed from this insofar as he does not want to allow the questioning of the legal order itself, in its entirety or in one of its manifestations, to be an unreserved part of the reality of modern democracy.
As has been shown, different conclusions can be drawn from the legal criticism of the concept of subjective law. Nonetheless, the criticism of this concept has made it possible to establish some conditions for its use within the framework of a political philosophy which, I would suggest, centers its thinking, and in particular its interpretation of modern democracy, more on the concept of rights rather than that of power. First and foremost, it goes without saying that the rights that are constitutive for modern political individuality do not have to be regarded as ontological properties of a subject whose identity is given regardless of historical development. On closer inspection, the statutory identities, although referring to history, are much more closed to historicity than the non-statutory individual of contract theories. The statutes, the legal positions, that was petrified history, was invocation of unequal rights fixed in the distant past, which presumed to standardize the present and the future. The rights set against the reforming initiatives of the princes by the regulations of the Ancien Régime were immutable rights, indeed aids against the tendency towards unlimited freedom of sovereign power, i.e. against absolutism, but also rights that deal with inequalities of all kinds (economic, political, legal ) made permanent. In contrast, the individuation of rights represented the starting point of a historicization, which is illustrated by the last two centuries of the history of the Occident, in which the field of rights recognized by constitutional and legal texts and guaranteed to their citizens by states was expanded. This story has neither necessity nor linearity. The recognition of new rights was more often coerced from the authorities than they freely granted - and there were setbacks. As an aside, it should be noted that the individualization of the legal subject does not mean that the struggles for rights have been waged individually. On the contrary, mostly they were a collective act, i.e. there was a social history of struggles for the conquest and defense of rights, a history in which one demos expresses which is neither the abstract body to which democratic constitutions refer in their preambles, nor the totality of the real members of a state.48 But the opening of the history of rights, the possibility of new rights and not just the renewed assertion of the The inviolability of the introduced rights is directly related to their individuation, ie also to the indefiniteness of the "human rights" in which some have seen their weakness; But compared to the statutory freedoms, it also offers the advantage that "human rights" are still an empty form that is therefore still to be filled in an evolutionary manner and is accessible to social action.
The legal criticism of the concept of subjective law also leads us to take the power of the institution seriously. The mere claim to a right, as always justified from the standpoint of an everyday sense of justice and injustice, is not a right. Law in the true sense of the word exists only under the precondition of its guarantee by a power, that of the state in the paradigm of the above-mentioned legal theories, or of any other authority with means of coercion, one follows Weber. In order to do justice to what has been the reality of democracy for two centuries, it is essential to include in its concept also the extra-legal and extra-political practices that the legal exercise of power incessantly and in a more or less sharp way questioned (insofar as they went beyond the framework of political action defined by constitutional and legal texts, but also limited). It is therefore necessary to break away from a narrow legal conception of democracy, which slams any questioning of the instituted powers into subversion. No less necessary but also to understand that the questioning of a given state of power and its legal design is only possible under the condition political Is important as it aims at its own institutional implementation. Plagiarizing Hegel, one could say that the fear of the institution is the shibboleth by which the false brothers and false friends of democracy could be recognized, or, more precisely, the incurable romantics who were the substance of democracy in the moments of revolution Search for those moments in which the instituated authorities are silent or are no longer heard, so that the idea can arise that they no longer exist
Provided that it fulfills these two conditions, a historical-critical view of democracy can benefit from the concept of subjective rights without having to postulate a human being. It is a truism that the formulation of natural rights is just as performative as that of human rights. Before they are expressed, established and instituted, these rights have no existence. Subjective rights in general are not tied to an identity of the subject that would be determined and guaranteed before they were conquered and recognized. But the lack of a statutory definition of the "man", who can only obtain his rights through the state, gives his identity a plasticity and thus creates space for a practice of democracy in the sense that the term covers under the conditions of modern societies is far removed from its etymological meaning as well as its older interpretations. Jacques Rancière writes at one point: “The 'human and civil rights' are the rights of those who give them reality” 50; this formula is to be agreed, provided that it is understood that the identity of the democratic subject is an identity in the making, to the determination of which the struggles against the rules prescribed by the legal powers contribute as much as these rules themselves. democratic life "is" a "political life independent of the state sphere" 51 insofar as only the power (of the state or, if necessary, of other compulsory bodies) is able to convert the demands into rights.
One important consequence of the interpretation of democracy developed in the preceding analyzes should be mentioned here at least briefly. It calls for the relevance of the distinction between civil rights, political rights and social rights to be questioned, and indeed the special status commonly reserved for "human rights" to be questioned. It is not a question of discussing the usefulness of these distinctions for legal theory, legal history, or political science. But from the point of view of democracy, understood as the open development of the determination of political subjectivity, all of these successively acquired rights are political rights. Politically because of their origins (won through struggles), but politically above all because of their anthropological significance: They are the attributes of an evolving subject that has got rid of the stability of fixed, frozen identities. Kelsen had already shaken the distinction between civil and political rights when he remarked that subjective private rights can be regarded as political rights insofar as the individual participates in the creation of law by setting the legal machinery in motion in order to bring about a court decision; Just as it also participates in the creation of law by electing the members of a legislative body.52 Conversely, one could say that in a democratic system of government political rights are subjective private rights insofar as they are individually held and exercised, and consequently they are once guaranteed to be constitutive of the subject that remains an individual. In other words, there is no reason to view political rights as contingent attributes of the modern subject (person). If the identity of the subject is not inherent in nature, but rather has been formed in the history of the establishment / recognition of rights, political rights are no less contingent attributes than civil rights. The same is true, it really has to be said, for social rights: the distinction between civil liberties and personal rights only makes sense if it is assumed that the former recognize attributes which the human individual inherently possesses, while the latter recognize him from the human being State granted 53
25What will happen to the political subject, thus equated with the legal subject, if the state loses its monopoly on the legal guarantee? Here it is necessary to continue the considerations begun at the beginning of the second chapter and to come back to Weber's characterization of subjective rights. When Weber comes to speak of "extra-state" law that is guaranteed by other than physical means of coercion, he is not only referring to hierocratic violence, that is, excommunion, he also mentions it
"Threat of expulsion from an association, a boycott or similar means, and also the prospect of magical advantages or inconveniences or other rewards or punishments in the event of a certain behavior" .54
Magic and otherworldly rewards refer to archaic forms of society that we are not interested in here; the mention of the boycott, on the other hand, suggests that the legal guarantee may not only depend on political powers other than the modern state, but may also be based on coercive measures on the part of private corporations. Weber refers to blacklists of accounts payable and homeowner associations and the associated boycott measures, whereby he also notes in this context:
"And of course this compulsion can also extend to claims that are not guaranteed by the state: then these are still subjective rights, only with the help of other powers." 55
Today, this remark is gaining significance that Weber could not have foreseen - in other words, in an era in which we are witnessing a multiplication and diversification of norm-creating bodies, most of which are beyond the control of the nation states and, alongside private institutions such as non-governmental organizations (NGOs), also multinational companies lock in. Even if the state is still a long way from retiring from the world political stage - lawyers, historians and political scientists agree that it has lost its monopoly on the creation of law.56 From the abundance of literature that documents the erosion of the state's legal monopoly, let us here only Mireille Delmas-Marty's description of the "great legal complexity of the world" 57 was mentioned, a situation which, as she herself hopes, only prevails temporarily and should result in a new hierarchy of norms that would be more flexible than the state-based, but international one Law could restore the character of a legal system. The diagnosis of Julie Allard and Antoine Garapon, who analyze the phenomenon from the perspective of the »commerce of judges«, i.e. the cross-border exchange relationships between judges, is more reserved and probably more realistic. Allard and Garapon call for "the idea of some sort of legal order to be buried" and limit their hopes to the emergence of a new "form of global legal arena," which they would like to believe is something like a " social bond "without" being tied to a pyramid of norms or a certain political order ".58
The state monopoly on legal guarantees connected with the territorial fixation of power, in which Weber saw an exceptional phenomenon on the level of the comparative history of civilizations, is likely to have been a mere episode in the history of the Occident. If the global legal space no longer has much to do with what Kelsen called a "legal order," then this also means that the framework of political action no longer coincides with that which was presupposed in the great works of modern political philosophy. In order to do justice to the reality of contemporary politics, its concept must not only incorporate the extra-legal manifestations of criticism and protest, as critical thinkers have demanded, as has recently been demanded by a more classic author such as Pierre Rosanvallon59, but also the decentralized position of the state in the contemporary topology of the political. To place the rights, the conditions of their acquisition and their guarantee at the center of the interpretation of the political also means, following Claude Lefort, to recognize that the central question of politics must not be the appropriation of power An epoch, when reflections on politics concentrated on the connections between totalitarianism and democracy, the place of power is no longer an empty place, rather filled to bursting, almost overflowed with diverse and diverse organisms with which the political From now on, the subject must negotiate the guarantee and defense of his or her rights. The new pluralization of the authorities enables us to reread the history of modernity as that of a political struggle in which it was a question of determining the rights of a legal and political subject at the same time. The exercise of classical political means (right to vote) was and is one of the means of this struggle, within the framework of the nation state and supranational units that imitate the forms of the nation state to a certain extent (e.g. the European Community); but of course it is only one means among others. At the transnational level, on which a not inconsiderable part of these struggles is taking place today, by far not all the power bodies with which individuals are confronted and on which the possible guarantee of the rights they claim depends are subject to control through periodic elections. It is all the more important to recognize that the means of political action must not be limited to the choice of management personnel.
27Should we dare to speak of "cosmopolitanism" or cosmopolitanism at this point? To do this, the term must first be seriously reconsidered. For, following Kant, the internationalization of law was dreamed of as a horizon of universality that would free the modern political "man" from his ultimate particularity, that of the citizen of a nation-state.In this sense, cosmopolitanism or, as the German term so clearly expresses it, cosmopolitanism, can be interpreted as citizenship on a world level. This is exactly what Habermas did in the early 1990s, when he assumed that the progressive erosion of the sovereignty of the nation-states goes hand in hand with the establishment of supranational bodies for which the nation-state, "that historical figure we are about to overcome", nevertheless can serve as a model and guide. “Citizenship and global citizenship form a continuum that is already in outline.” 61 The current state of globalization of law makes it doubtful that it will take such a path. The radical ambiguity that this globalization presents from the point of view of a history of humanity that, following the example of Hegel's philosophy of history, would be written as the history of the universal, must be accepted; It is no less imperative to ask oneself what the future of the modern political subject consists of when the state that created it by depriving all community memberships than citizenship of their political significance is only more than one power instance among others will figure.
In a certain way, it could appear as if the establishment of supranational legal and judicial instances would complete the abolition of legal-specific differences, thereby eliminating the aporia that is deeply inherent in state sovereignty in the way in which Alexander dealt with the Gordian knot. This aporia, remarkably staged by Hobbes, is based on the fact that the abolition of statutory differences went hand in hand with the delimitation of sovereign power. The individual freed from class identities now found himself deprived of the resources that the classes once offered him to defend himself against the rule of the princes. The submission of the subject to the state forms the dark reverse side of the independence of the modern political subject from community ties, which is why modern theories of natural law have tried in many ways to justify a minimal right of resistance to the omnipotence of the state. Supranational courts such as the European Court of Human Rights or the International Criminal Court undermine this omnipotence by allowing a heteronomous limitation of the power of the state, which at first glance seems more convincing than the self-restraint with which the theorists of the rule of law had to be content. It would be wrong, however, to conclude from this that the relationships between authorities and the right have lost their problematic character; this just shifts and takes on different forms. If the examples of the European Court of Human Rights or the International Criminal Court can still be interpreted according to the model of a "hierarchy of law" (albeit less strictly than in the national framework), then the general situation of global law is more reminiscent of anarchy, that is, one According to Mireille Delmas-Martys62, a "rights market" in which at least some actors are free to choose the jurisdiction that appears to them to be the most favorable in each case. The possibility of voting and the respective authority of the jurisdiction depend on the balance of power, the prerequisites of which are, in turn, of a non-legal nature, such as the unequal strength of states, economic groups or international organizations of all kinds not that it already affects the universality of law. The globalization of law (tends to) frees the modern political subject from that remnant of statutory affiliation, national citizenship, only in order to surrender it to new particularisms, namely interests that are able to strategically exploit the heterogeneity of legal or quasi-legal systems of norms .
If there is one subject that deserves the attention of all legal disciplines, it is precisely this new and original configuration of the relationships between authorities and law. If the state could still be regarded as an approximation to the universal and accordingly represent an ethical alternative to the transcendent justifications of the law of earlier epochs (which led Hegel to characterize the state as the "reality of the moral idea") 63, the diversity of the contemporary Given the means required by legal pluralism, the danger of abolishing the symbolic transfiguration that the shape of the 'equal right for all' imposes on interests. In doing so, it brought the process to an end that Weber had predicted in a different context: the interpretation of law as "a rational technical apparatus that can therefore be re-created in a rational manner at any time and without any sanctity in terms of content." 64 Unless an analogue to the If the future of democracy arises, it is difficult to think of anything other than a confirmation and expansion of the rights guaranteed to individuals. It is thanks to the state that the modern political subject has been created, whose identity does not lie in participation in power, but in the right to have rights. This historically grown figure of the political subject remains the point of reference of every democratic practice, while at the same time the legal monopoly of the state, which made its development possible, is crumbling. The difficulty today lies in imagining how this legal claim to rights, which must be regarded as a quintessential political right insofar as it is the prerequisite for the acquisition and maintenance of any particular right, takes advantage of the opportunities opened up by the diversification of the legal space can do without contributing to that ultimate desacralization of law: its reduction to a mere technique of public and private authorities, the chaotic juxtaposition of which makes up the reality of our political universe.
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