Democracy and Subjective Rights: Democracy Without Demos - Hardcover

Colliot-Thaelaene, Catherine; Colliot-Thélène, Catherine

Hardcover

ISBN 10: 1785522620 ISBN 13: 9781785522628

Verlag: ECPR Press, 2018

Inhaltsangabe

This book critically investigates the notion of democracy without demos by unravelling the link that modern history has established between the concepts of democracy and the sovereignty of the people. This task is imposed on us by globalization. The individualization of the subject of rights is the result of the destruction of regimes of special rights of ancient societies by the centralizing action of a territorial power. This individualization, because it implies equality, has created a new form of political subjectivity that has been the driving force of the democratization of democracies during the 19th and 20th centuries. Democracy and subjective rights discusses how asserting itself as the only guarantor of rights, the modern state has also nationalized citizenship. However, the author argues, the legal and judicial monopoly of the nation-state is weakened today by the multiplication and heterogeneity of the powers on which the rights of individuals depend. This situation forces us to denationalize citizenship without sacrificing, however, the specific form of political subjectivity that the individualization of rights has made possible.

Über diesen Titel

Über die Autorin bzw. den Autor

Catherine Colliot-Thélène is Professor Emeritus at the University Rennes 1.

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Democracy and Subjective Rights

Democracy Without Demos

By Catherine Colliot-Thélène

Rowman & Littlefield International, Ltd.

Copyright © 2018 Catherine Colliot-Thélène
All rights reserved.

ISBN: 978-1-78552-262-8

Contents

Introduction, vii, 
1 Subjective Rights, 1, 
2 Democracy, 27, 
3 The Democratisation of Democracies, 57, 
4 Democracy Without Demos, 91, 
5 The Future of the Political Subject in the Context of Globalisation, 121, 
Conclusion, 147, 
Bibliography, 157, 
Index, 165, 

CHAPTER 1

Subjective Rights

The National Assembly, wishing to establish the French Constitution on the principles that it has recognised and declared, irrevocably abolishes the institutions that have done injury to liberty and to the equality of rights. Nobility no longer exists, nor peerage, nor hereditary distinction of orders, nor feudal regime, nor patrimonial courts, nor titles, denominations or prerogatives deriving therefrom, nor any order of chivalry, nor any of the corporations or decorations for which proofs of nobility used to be required or which presupposed distinctions of birth, nor any other superiority than that of public officers in the exercise of their functions. [...] No privilege or exception to the common law for all Frenchmen any longer exists for any part of the nation or for any individual. (French Constitution of 3 September 1791)

1.1 SUBJECTIVE RIGHTS: A DISPUTED CONCEPT

When did the term 'subjective rights' first come into use? While legal dictionaries and encyclopaedias do not precisely answer this question, we can at least say that the expression was coined fairly recently. In the history of legal doctrines, it was the nineteenth century German Pandectists who made it famous by giving it a central place in legal theory. The idea, however, predates the term itself. For some it was Hobbes who fathered the notion, while for others it was Grotius; for others yet, the notion of subjective rights dates back even further in time. Thus, without claiming to have identified a specific origin, Niklas Luhmann traced the genesis of this idea to the sixteenth century by drawing in particular on Richard Tuck's beautiful study of the sources and development of natural rights theories, a study that had itself explored the reception of Roman law in the twelfth century.

The notion of subjective rights is not only recent; it is also highly controversial. Its obvious association with jusnaturalistic individualism has led some to believe that it could be dismissed by doing away with the very idea of natural law. Léon Duguit, for instance, rejected this idea in the name of the fundamentally social nature of the rule of law, which he explicitly opposed to the conception of natural and individual rights. In this conception, 'man, by the very fact of his birth and his life, is invested with effective powers that we term rights, and that legal doctrine qualifies as subjective rights', these being presumably fixed, 'by virtue of a superior and transcendent force, on the head of each individual, not because he lives in society, nor because he shows solidarity towards his fellow men, but by virtue of his humanity'. Hans Kelsen also rejected natural law, but on the grounds that the notion of right derives from that of duty: 'The traditional view that the right and the obligation are two different objects of legal cognition, that, in fact, the former has a priority in relation to the latter, is probably rooted in the natural-law doctrine. This doctrine assumes the existence of natural rights, inborn in man, that are valid before any positive legal order is established'. Kelsen further noted that one merely needed to dismiss the notion of natural rights and to recognise that the only existing rights are those established by a positive legal order to see the notion of subjective rights – provided that we would want to keep it – change meaning entirely. '[I]t becomes evident', he wrote, 'that a subjective right (as a reflex right) presupposes a corresponding legal obligation – that indeed, it is this legal obligation'. While this critique was forgotten in later years, both because of the rehabilitation of the idea of natural law in the post-war period and because of the widespread (though purely technical and nonideological) use of the notion of subjective right among legal practitioners, Michel Villey revived it in a highly controversial manner in the 1970s and 1980s. Villey traced the philosophical roots of the notion of natural rights to the nominalism of William of Occam, and denounced its belated effects in the political philosophy of his time. In his view, the essential feature of this philosophy that made human rights the criterion by which to judge the legitimacy of political regimes could be summed up in a formula whose simplicity bordered on oversimplification: 'From what "man" is, deduce his "right."' To this conception, he himself opposed what he claimed was the truth of the Roman doctrine of law, consistent with the Aristotelian position. For Aristotle as for Roman jurists and the first glossators, law was jus, synonymous with justum, by which they meant the unity of rights and obligations that constituted an individual's part in the objective order of the world, and that it was the judge's responsibility to determine in the event of disputes (according to the principle of suum cuique tribuere). This doctrine ignored the 'subject of right', which Villey consequently invited his readers to discard: law would know no subjects, only beneficiaries. More recently still, Vincent Descombes took up Villey's critique, while displacing it onto a different argumentative terrain. As part of a comprehensive critical study of the various philosophies of the subject, he developed a Wittgenstein-inspired grammatical analysis that challenged the semantic consistency of the notion of subject of right, and with it that of subjective rights.

The jurists of the first half of the twentieth century, however, were not the first to criticise the notion of natural law; nor was Villey the first to deride human rights. As regards natural law, Hegel had already stressed the confusion that underlay the expression. He noted in the Philosophy of Mind that '[t] he phrase "Law of nature," or Natural Right, in use for the philosophy of law involves the ambiguity that it may mean either right as something existing ready-formed in nature, or right as governed by the nature of things, i.e. by the notion'. And yet, Hegel did not renounce using the phrase. The Philosophy of Right does bear the subtitle: 'Natural Law and Political Science in Outline'. It would be wrong to see this as a concession to the traditional denomination of a theoretical genre to which Philosophy of Right still belonged, despite the revision that this genre underwent in the book. Unlike critics of the twentieth century, Hegel was well aware that what lay behind this naturalisation of rights was something quite different from simple naivety. Relating rights to the nature of man was a way of expressing the individualisation of the legal subject, namely the fact that the Moderns consider the individual as a subject of freedom and, by virtue of this, as a holder of rights. Hegel knew perfectly well that the notion of subject of right, thus understood, was alien to Roman law. In the latter, he noted, legal personality was a status, which made sense only in opposition to other statuses, and above all that of the slave. 'The right of persons in Roman law is therefore not the right of the person as such, but no more than the right of the particular person'. By contrast, the fundamental principle of modern law, which Hegel enunciated in the form of an injunction, was addressed to every individual regardless of status distinction: 'Be a person and respect others as persons'. The naturalisation of rights merely reflected the individualisation of the legal subject. It was the product of history – of a history that dated back several centuries and that had seen status differences gradually lose their self-evident legitimacy, until the French Revolution declared them abolished.

1.2 KANT: PRIVATE LAW AS A DOCTRINE OF SUBJECTIVE RIGHTS

Hegel's account of what constituted for him the first level of law – which was nevertheless a fundamental level that developed all dimensions of the individual's legal personality – came with a recurring critique of Kantian positions. And yet it is Kant who presented with the greatest consistency the implications of the individualisation of the subject of right. Of the entire Kantian corpus, the Doctrine of Right was not the best served by exegetical commentary. Specialists in moral philosophy have tended to view it as a mere appendix to Kant's body of work, while political scientists have more readily focused on his opuscules, in particular the Idea for a Universal History with a Cosmopolitan Purpose (1784), the essay on Perpetual Peace (1795), or the third part of The Conflict of the Faculties (1798). I will later comment on some of the arguments presented in those texts. Nevertheless, the key to Kant's legal and political philosophy does lie in the Doctrine of Right and, above all, in the mystery of its construction. For in this text, Kant preceded a description of public right – in other words, of right established and guaranteed by the state, which is what we normally refer to as positive right – with an account of private right construed as determinable prior to any political institution. This is all the more mysterious since Kant himself acknowledged that the private condition, which is another name for the state of nature, is 'one that is not rightful'. There can be no right in the strict sense of the term – i.e., no 'conclusive' right, to use Kantian terminology – without a state. What interest did Kant have, then, in speaking of right, and especially of legal right, with regards to relationships that escape the constraints of the state or of any other instance of public power, when he himself claimed that 'right and authorization to use coercion [...] mean one and the same thing'? What interest is there in thinking something like a 'provisional' right that would be distinct from a 'conclusive' right?

If we are entitled to speak of mystery concerning the link that Kant established between private right and public right, it is because this link has often aroused perplexity among commentators. The book by Simone GoyardFabre, one of the few works in French to be entirely devoted to the Doctrine of Right, exemplifies this perplexity, which she sought to overcome by putting forward a highly questionable interpretation. Private right, she wrote, is certainly not a-legal, but pre-legal – that is to say, it is legal in anticipation of the civil condition. This distinction allowed her to argue that, for Kant, 'the truth of private right resides in its subsumption under public right, namely in the guarantee which only civil law is authorised to give to the structures of society. Political right confers on natural right its truth and its legal validity'. Alain Renaut, who recently published a beautiful translation of the Doctrine of Right, comes close to this interpretation. In a note where he comments the Kantian formula whereby 'only in a civil condition can something external be mine or yours' (the determination of 'something external' as 'mine or yours' being the entire content of the 'right of men', i.e., the right of jurists), he claims that this formula expresses 'the most famous thesis of the Doctrine of Right', namely that 'it is public law which founds private law' This sort of interpretation does not help us understand why Kant, always so scrupulous in his choice of terminology, insisted in qualifying as legal the provisional rights of the private condition. The most explicit passage in this respect is found in the remark to paragraph 44 of the Doctrine of Right: 'If no acquisition were cognized as rightful even in a provisional way prior to entering the civil condition, the civil condition itself would be impossible'.

The mystery is solved, however, as soon as we take into consideration the (generally implicit) critique that Kant levelled in all of his legal and political writings against the temptation of legal positivism, whose extreme (because logically rigorous) expression he found in Hobbes's positions. To be sure, 'only in a civil condition can something external be mine or yours' and this 'something external' which is 'mine or yours' – the matter of private right – is found, with nothing added or subtracted, in the civil condition. But it is not up to the state to determine the content of private rights. These must, on the contrary, be thinkable (which is what Kant meant by 'possibility') not only in their form, but also specifically in their content, regardless of the guarantee that the existence of an instance of coercion, that is of a political power, might offer them. Concerning the justification for property, which constituted for Kant the core of private right, Hobbes defended a completely opposite thesis: in his view, the foundation of property could only be institutional. The anti-positivist signification of the logical anteriority of private right to public right appears clearly in one of the few passages where Kant explicitly mentions Hobbes, namely the second part of Theory and Practice, which bears the subtitle 'Against Hobbes', and more specifically the conclusion. In general, readers mainly remember from this text Kant's reaffirmation of his unreserved condemnation of the right to resist. No violation of right, no abuse of power on the part of rulers or legislators could justify for him a people's rebellion. In the last pages of the text, Kant claimed he was confident that despite everything, he would not be reproached for being overly flattering to monarchs – something about which he was certainly deluded. But it is to another potential critique that he unexpectedly devoted most of his attention: that according to which he excessively favoured the people by positing that it possessed imprescriptible rights in the face of power, even though these rights could not be binding. It is only in this short passage that Hobbes's name is mentioned, and this in a text that was supposed to be entirely devoted to criticising him. The context clarifies the meaning of this critical reference. By declaring rebellion illegitimate, regardless of the reasons for it, Kant seemed to veer dangerously close to Hobbes's absolutist conception of sovereignty, which implied that it is power ('the head of state') which is responsible for defining the just and the unjust – to determine what right is. It is precisely this thesis, which Kant deemed 'terrifying', that the construction of the Doctrine of Right permitted to rule out. The anteriority of private right to public right means that, contrary to what Simone Goyard-Fabre argues, the truth and validity of private right do not depend on its subsumption under public right.

Clearly, Kant is not Kelsen. In the book that the latter devoted to refuting one by one – from Durkheim and Tonnies to Jellinek and Weber (among others!) – all the theorists of the state that introduced in its concept determinations other than that of the legal order, the passage dedicated to Kant is surprisingly short. Kelsen saw in the Kantian theory of law and state merely 'the typical expression of the doctrine of natural law'. Kant remained a contractualist and therefore presupposed – contradictorily, according to Kelsen - that the idea of rights preceded the state in one way or another. In his view, Kant came very close to perceiving the law and the state as identical when he defined the latter as the 'union of a multitude of human beings under laws of right'. Provided that we correct the image suggested by the term 'under', this formula means, again according to Kelsen, that the state is the behaviour of a multitude of human beings bound by norms of right. Yet because Kant failed to take this definition to its logical conclusion, he, like other theorists of natural law, juxtaposed to his legal concept of the state another concept which he unduly presented as equivalent: the state is a fact of power that produces right. The casualness with which Kelsen rushed through the Kantian case is indicated by his silence regarding the nonetheless crucial distinction Kant established between private right and public right. This is because the meaning of this distinction was imperceptible to him.

Indeed, in order to exorcise once and for all the notion of 'natural law', Kelsen reversed the priority of rights and obligations by placing obligations at the legal forefront. In his view, the major defect of what he vaguely referred to as traditional legal theory – in its German and French variants at least – was to take subjective rights as a starting point, such that obligations would, so to speak, disappear behind them. Unlike Duguit, Kelsen did not completely reject the use of the expression 'subjective rights', but he broke the term down between reflex rights, political rights, subjective rights 'in the technical sense' and positive permissions. Yet despite their differences, these four types of subjective rights can be regarded as species of a same genus, in the sense that each of them is established by state-created norms, the state being the one and only source of right. As the term suggests, reflex rights are merely the correlate of prohibitions, accompanied by sanctions in the case of violation, which influence behaviours. Moreover, even the powers (in the sense of capacitas) of legal subjectivity, such as that of participating, directly or indirectly, in the elaboration of the political will or that of initiating a legal procedure through filing a complaint (i.e., subjective right 'in the technical sense', to use Kelsen's terminology) always proceed from an Ermächtigung – a term which the English 'authorisation' imperfectly renders. The individual has power only in so far as it is conceded to him. Behind the authorisations and powers granted by the state, there is nothing. The legal subject, and with him the political subject, has no consistency of his own; he is merely the point of convergence of norms determined by the state. These norms target the human individual through behaviours, which they prohibit or render possible depending on the situation. But they do not presuppose the individual as subject; on the contrary, they treat him as an object, as the object to which these norms apply.

(Continues...)

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Details zur Ausgabe

• Verlag: ECPR Press
• Erscheinungsdatum: 2018
• Sprache: Englisch
• ISBN 10: 1785522620
• ISBN 13: 9781785522628
• Einband: Tapa dura
• Anzahl der Seiten: 200
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar