Christoph Menke’s Critique of Rights is a capacious critique of bourgeois law and subjective rights. The scope is impressive, drawing on continental and analytic traditions while clearly delineating his own commitment to genealogical critical theory. He aims to show how subjective rights are anti-emancipatory (p. 180), and his criticisms are in many ways compelling, even if his solutions are largely unconvincing.

Menke’s first line of critique is that modern law abandons the moral dimension of traditional law, wherein rights are seen as “fair shares” based on natural hierarchies. Modern law, by contrast, derives legal rights from natural law, which, Menke explains, merely enshrines unexamined “natural strivings,” leaving modern law with no moral content. Subjective rights authorize “self-will,” protecting the right to “one’s own opinion,” regardless of whether it is moral or reasonable (p. 173). Moreover, these rights produce a new kind of subject whose willing is completely unmoored and artificial (p. 139).

By enshrining natural strivings, rights elicit another line of critique, by way of a paradox Menke calls “legality’s gap.” Accordingly, non-law is both in law (as natural strivings) and is law’s other. I am not sure this contradiction is as important as Menke makes it out to be, but it leads to a string of more compelling contradictions that he fruitfully dissects. For instance, Menke traces how subjective rights serve dual purposes: to permit and to enable. Readers may recognize this as the distinction between will and interest theories of rights. But permitting implies an indeterminacy that is at odds with enabling determinate interests (p. 63). Permitting and enabling also map onto the distinction between liberals, aligning with property rights and the private law of contracts (which socialists regard as exploitative), and socialists, or those aligning with social institutions that liberals regard as paternalistic and oppressive. Because the liberal and socialist strands of modern law recognize these flaws in each other but not themselves, bourgeois law embodies its own immanent critique (p. 219).

A third line of critique concerns the inability of bourgeois law to recognize social interdependence. This insight leads in two directions. First, rights protect choice, but choice depends on genuine judgment, which is only possible when guided by norms developed in a social context. This is a familiar critique of Rawls. Second, private wealth depends on social participation: individual participation in institutions allows for the private appropriation of social wealth (p. 157). This claim is critical to Menke’s argument, and yet it is buried halfway through the book. To some it will seem obvious; others may require more evidence than he gives, but this is one of many examples where important arguments could have been outlined earlier and more explicitly.

Bourgeois law and subjective rights enable us to deny our interdependence – economically, socially, morally, and politically. The upshot is that there is a perpetual threat that bourgeois society will disintegrate from within (p. 230). Not that we should shy away from this violent end for liberalism (p. 294). Indeed, “critique wants to exacerbate and accentuate the crisis of bourgeois law” (p. 121), exposing all of its contradictions, to pave the way for the “new right” or the “counter-rights” that Menke sees on the other side of bourgeois law. His sketch of new right begins with Nietzsche’s insistence that subjective rights are a tool of the weak, only reifying their weakness. Menke tells us that the bourgeois demand for consideration (what political theorists usually call recognition) of the “natural” is actually a demand for the right to not participate in politics (p. 259). After everything else he has written, Menke surely cannot mean to suggest that the opportunity to meaningfully participate in politics is accessible to everyone, and yet this reads like an esoteric kind of victim blaming.

What does Menke envision to transcend this weakness? He tells us that we must see society as a practice (in which members negotiate rules for achieving a shared end), with politics as the self-government of the practice (p. 245). At the same time, we must shed positivistic pseudo-judgment that does not question natural strivings and instead engage in a dialectical judgment that moves between the perceptible and the conceptual. What is noteworthy about this rendering of judgment is that it allows for experience to inform judgment without abandoning normative potentialities: “To be able to participate in government means to articulate one’s own experiences and thoughts as part of a universal determination of the good. It means being able to participate in language and not merely have a voice that emits signs of feelings” (p. 279). It makes a place for passivity and not participating, as a respite from and prerequisite for the good judgment on which real participation depends. New right takes powerlessness into consideration but does not naturalize it (p. 279). A dialectic of judgment in social practice, Menke says, will ensure a just social order (p. 287).

As these last claims suggest, the book falls into assertions in the final pages that do not do justice to the 280 pages preceding them. Can we really anticipate a universal good ever again? How do we know that this dialectic of judgment is enough to ensure a just social order? Because “new right’s decisions are always new decisions” and must be “mediated through and through” (pp. 290, 275), Menke does not feel obliged to offer any impression of what new right could possibly look like in a modern, mass society. He does, however, note that the distinction between new right and bourgeois law is “unstable” (p. 291). Indeed, counter-rights follow many of the same patterns as subjective rights. For instance, although Menke insists that bourgeois rights are apolitical, he also says that every bourgeois right is a new right, forged in historical processes (p. 108); this does not sound entirely different from counter-rights as claims to “transitory and recurring…moment[s] in the political process of law” (p. 281). Menke also concedes, on the last page, that new right must be subordinated to one basic law: it must “involve all as persons capable of judgment and must take each person into consideration as powerless” (p. 290). This does indeed seem necessary, but it is not that different from the “only normative standpoint” governing subjective rights: “that all self-wills can simultaneously exist” (p. 145).

Critique of Rights is ambitious but also quite demanding of its reader. Menke’s critique is so strong, and his explication of counter-rights is so brief and late-coming, that the reader might be forgiven for mistaking his critique for nostalgia. But Menke does not wish a return to the past. New right, as he describes it, will bring a kind of liberation that neither traditional law nor subjective rights could ever deliver. Menke does not pretend to know what this will look like. Fair enough. But I am left somewhat unsatisfied with his solutions, reading this book in the shadow of a pandemic and an insurrection at the US Capitol, watching the very conflicts Menke describes play out in real time. How will we ever get from here to there? Can we really afford to set down the only tools at our disposal? And if this is not what Menke is asking of us, then what are we to do?