Rights, Systems of Rights, and Unger's System of Rights: Part 1

Rights, Systems of Rights, and Unger's System of Rights: Part 1Author(s): Horst EidenmüllerSource: Law and Philosophy, Vol. 10, No. 1 (Feb., 1991), pp. 1-28Published by: SpringerStable URL: http://www.jstor.org/stable/3504833 .

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HORST EIDENMULLER

RIGHTS, SYSTEMS OF RIGHTS, AND

UNGER'S SYSTEM OF RIGHTS: PART 1

ABSTRACT. Critical legal scholarship has so far been concerned primarily with

trashing or deconstructing the belief clusters of "liberalism". Negative posturing of this kind is not the only feature of the movement, though. Roberto Unger has dreamt up a sociopolitical vision that presents an "empowered democracy". An

important element of his "empowered democracy" is a new system of rights. Part 1 of my essay contains an analysis of the notion of a subjective right. I argue that both Hohfeld's fundamental legal conceptions and Unger's various rights can be described by a simple deontic relation that I define as RIGHT. I then discuss a set of normative criteria that can help us evaluate systems of rights. Part 2 [to appear in the following issue - ed.] contains a detailed critique of Unger's system of rights based on these normative criteria. The tenet of this part is that Unger's system of

rights is contradictory, opaque, impracticable, costly, and not fully backed by what Unger offers as a background justification for it.

INTRODUCTION

Within Critical Legal Studies (hereafter CLS) Roberto Unger is a con-

troversial figure. In the spectrum of work associated with CLS - a

spectrum that extends from pieces devoted to trashing the Law and Economics Movement to visions of a better society - the bulk of

Unger's writing is representative of the grand-theory branch. In his books The Critical Legal Studies Movement (hereafter CLSM)' and False

Necessity: Anti-Necessitarian Social Theory In The Service Of Radical Democ-

racy, Part I Of Politics, A Work In Constructive Social Theory (hereafter FN)2 his vision of the individual and society is crystallized in concrete

' R. Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard

University Press, 1983). 2 R. Unger, False Necessity: Anti-Necessitarian Social Theory In The Service of Radical Democracy, Part I Of Politics, A Work In Constructive Social Theory (Cambridge: Cambridge University Press, 1987).

Law and Philosophy 10: 1-28, 1991. ? 1991 KluwerAcademic Publishers. Printed in the Netherlands.



Horst Eidenmuller

institutional proposals for reorganizing the state, the economy and, most important, the system of rights:

A special feature of our own intended version of this transformative practice is that its immediate subject, the definition of rights, helps demarcate all the other social stations and institutional havens ... Again, by its very nature, the definition of rights spans the gap between the macrostructure and microstructure of social life.3

In this essay I will only look briefly at Unger's philosophy and at the metaphysical vision that inspires his detailed institutional proposals. I will examine the "facade" of his programme and take the underlying theory, as presented by Unger, cum grano salis for granted. His philosophical scholarship has recently been subject to a powerful but sometimes unnecessarily caustic critique by Ewald,4 that, because of its tone,

probably will not advance the communication between CLS and its critics very much.

I am interested, rather, in Unger's elaboration of a system of rights. The system consists of "immunity rights", "destabilization rights", "market rights" and "solidarity rights". This new, fully-fledged programme of rights distinguishes Unger from other CLS scholars, who doubt whether the movement should engage in rights discourse in

general, or promote giving people more and new rights in particular.5 Philosophically uninspiring as the project of examining Unger's concrete institutional proposals may seem, it is nonetheless necessary: philosophical visions in the field of politics without concrete institu-

3 R. Unger, CLSM, p. 116; cf. also FN, p. 509. 4 Ewald, 'Unger's Philosophy: A Critical Legal Study', Yale L.J. 97 (1988): 665- 756. 5 See Gabel/Kennedy, 'Roll Over Beethoven', Stanf L.R. 36 (1984): 1, 33 ("Exactly what people don't need is their rights") and Kennedy, 'Critical Labour Law Theory: A Comment', Indus. L.R. 4 (1981): 503, 506 ("[T]he left doesn't need a counter-theory that ends with rights"). For a critique of Kennedy's position see Sparer, 'Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement', Stanf. L.R. 36 (1984): 509, 525, 534-35. See also Price, 'Taking Rights Cynically: A Review of Critical Legal Studies', Cambridge LJ. 48 (1989): 271, 273-75.

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Rights, Systems ofRights, and Unger's System ofRights

tional proposals are, to make free use of Kant's dictum, empty. And when, as in the case of Unger, they come down to proposals that are

presented as a practicable alternative concept for organizing society, then it is these proposals that affect us most, not the underlying vision.6

In order to criticize Unger's system of rights one has to have a

concept of both what it means to talk about rights and of what it means to talk about a system of rights. In Part 1 of my essay I will first

give an analysis of the notion of a subjective right. This analysis builds on the work of Wesley Hohfeld and Robert Alexy. It allows us to

identify the analytical structure of Unger's immunity, destabilization, market, and solidarity rights. I argue that both Hohfeld's fundamental

legal conceptions and Unger's various rights can be described by a

simple deontic relation that I define as RIGHT. The presupposition I make is that for analytical purposes we can assume that both Hohfeld's fundamental legal conceptions and Unger's various rights denote definitive legal positions as opposed to prima facie legal positions.

I will then set out two minimum requirements that each system of

rights should fulfil. The first one, functionality, has three different

aspects. First, a system of rights should not contain contradictions or conflicts on the level of definitive legal positions. It should minimize tensions on the level of prima facie legal positions if it does not offer a

convincing strategy for resolving such tensions. Second, it should be

practicable in a sense that will be elaborated below. Third, it should be as simple to administer as possible. With legitimacy, the second

requirement, I mean that the system should offer some sort of back-

ground justification that tells us why we should have this instead of

any other system of rights.

6 "Social theory and diurnal political reality may converge in the minds of some in the academy. The real test of an affective connection, however, lies not among Unger's colleagues of the law school faculty (many of whom are still resistant) but among the people of Brazil, and I know nothing about their response to Unger" (Ball, 'The City of Unger', Northw. U.L.R. 81 (1987): 625, 651). Cf. also Hutchinson/Monahan, 'The "Rights" Stuff: Roberto Unger and Beyond', Texas L.R. 62 (1984): 1477, 1500; contrast Van Zandt, 'Commonsense Reasoning, Social Change, and The Law', Northw. U.L.R. 81 (1987): 894, 896.

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Horst Eidenmiller

In Part 2 [to be published in the issue following this one - ed. note] I will examine whether Unger's system of rights meets these requirements. I will show that it is riddled with unresolved tensions between

competing prima facie legal positions. Moreover, Ungerians are left in the dark about what their prima facie legal positions actually are. The

system clashes with organizing principles of other social subsystems, it will generate counterproductive effects, it will subvert basic forms of social interaction, and it will require large funds to be administered and enforced. All this would probably make it very difficult to set the

system up in practice. Additionally, we would not know exactly why we should have it: Unger's system of rights is not fully backed by what he offers as background justification for it.

The underlying ideas of his system of rights are new and puzzling - some might even say inspiring. But so far they are not properly worked out. And as long as Unger disregards analytical standards, it is

very doubtful whether they ever will be.7

I. RIGHTS AND SYSTEMS OF RIGHTS

A. Rights

1. Simple deontic relations. For analytical purposes it is desirable to reduce all "rights talk" as far as possible to simple deontic relations. I therefore start off with a definition.

(a) Definition

A person y will be said to have a DUTY if another person x can

require an action or an omission p from y:

DUTY:= Oyxp.

7 An earlier version of this essay was presented as a discussion paper to the Center for Studies on Changing Norms and Mobility, 5900 Siegen, Adolf-Reich- wein-Strage, Postfach 101240 (Prof Dr. Riidiger Voigt). The Second Chapter of Part 2 is to be published in a modified form in Rechtstheorie. I should like to thank T. Crane, P. Knight, M. Kramer, A. Nelle, and an anonymous referee who commented on a first draft of this essay.

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Rights, Systems of Rights, and Unger's System of Rights

O(ught) expresses a relational deontic modality.8 P is the object of the DUTY. X and y may be individual or corporate persons.

A person x will be said to have a RIGHT if x can require an action or an omission p from another person y:

RIGHT:= Rxyp.

Rxyp and Oyxp are correlative, i.e., where there is a RIGHT, there is a

corresponding DUTY:

Rxyp () Oyxp. To begin with this definition and to do so for analytical purposes

has three implications that need to be explained. First, a DUTY as

defined expresses a relational deontic modality, as opposed to a non- relational deontic modality. A non-relational deontic modality could be represented schematically by Oyp. Under this non-relational deontic

modality y has a DUTY to do p but there is no person x that has a

corresponding RIGHT that y does p. Whereas non-relational deontic modalities are frequently used in ethical theories,9 they do not describe most of our "rights talk" adequately. And since I should like to analyze what we mean when we talk about rights, I choose a definition that is of greater usefulness in this enterprise.10

Second, the proposed definition does not embrace what is called

rights in rem. The reason for this omission is simple. All rights in rem can be expressed as complex legal relations between persons.l1 I will elabo-

8 For the notion "deontic modality" see Alexy, Theorie der Grundrechte (Frankfurt: Suhrkamp, 1986), p. 183 (hereafter TdG). I will use the following symbols:

"~

(negation), A" (conjunction), " V " (inclusive disjunction), "" (conclusion) and "()" (correlativity). 9 Cf. Philipps, 'Absolute Und Relative Rechte Und Verwandte Phanomene', in: Tammelo/Mock (eds.), Rechtstheorie und Gesetzgebung: Festschrift far Robert Weimar

(Frankfurt: Peter Lang Verlag, 1986), pp. 396-97. 10 This is, however, not to say that the bilaterality of RIGHT-DUTY relation- ships is a feature of all "rights discourse"; see Hislop, 'The Hohfeldian System of Fundamental Legal Conceptions', Archiv fur Rechts- und Sozialphilosophie 53 (1967): 53, 73-74. " The notion of rights in rem is defended by Raz, The Concept of a Legal System (Oxford: Oxford University Press, 1980), second edition, p. 180. As in the text Alexy, TdG, p. 173 n. 52.

5



Horst Eidenmiiller

rate and defend this claim in this essay only insofar as it is relevant to Hohfeld's fundamental legal conceptions and Unger's system of rights.

Third, the definition sets out a clear-cut relation between x and y: either x has a certain RIGHT against y, or he has not. Such a definitive

legal position has a rule-like character. It differs from a prima facie

legal position. Prima facie legal positions have the character of principles. If the subject matter of a prima facie legal position is a RIGHT, we can speak of a prima facie RIGHT. Competing prima facie RIGHTS can and must be balanced with each other before we can say anything about the definitive legal positions of the parties involved.12 This distinction must not be conflated with the possible latitude of the

object (p) of a definitive RIGHT. A definitive RIGHT can have a broad

object ("good-faith loyalty") and nonetheless by its very character it does not allow for a weighing or balancing with other legal positions.

The analysis of "rights talk" put forward here does not purport to be conclusive. The claim I make is that both Hohfeld's fundamental

legal conceptions and Unger's various rights can be described by the

simple deontic relation defined as RIGHT. Only for these analytical purposes will I assume that Hohfeld and Unger are formalistic, i.e., that they make rule-like propositions about definitive legal positions. This strategy is legitimate for analytical purposes because to have a

prima facie RIGHT is always a strong basis for the assertion that one has a definitive RIGHT as well.'3 If not otherwise stated RIGHT

expresses a definitive legal position. To engage in such an analytical project is useful in at least two

respects. On the one hand, it turns our attention to some semantic

ambiguities of both Hohfeld's fundamental legal conceptions and

Unger's various rights. By using a symbolic notation, these ambiguities can be exposed. On the other hand, it allows us to check more

precisely whether a system of rights such as Unger's contains contra-

12 For this distinction see Alexy, TdG, pp. 71-104. Alexy builds on the work of Dworkin, Taking Rights Seriously (London: Duckworth, 1984), pp. 22-28. Dwor- kin speaks of"abstract rights" and "concrete rights" (Ibid., p. 93). 13 See Alexy, TdG, pp. 90-92; Dworkin, supra n. 12, p. 93.

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Rights, Systems ofRights, and Unger's System of Rights

dictions and/or conflicts on the level of definitive legal positions or tensions on the level of prima facie legal positions.

(b) The definition applied to Hohfeld's fundamental legal conceptions

In the very beginning of CLSM, while criticizing "Objectivism", Unger makes a reference to Hohfeld that is as brief as it is (partly) misleading. It was "Hohfeld's insight" that the "generic conception of right . . . proved to be systematically ambiguous".14 The reference is misleading because it can be taken to suggest that Hohfeldian analysis not only provides a valuable differentiation of the "generic conception of right" but also ends up with "both an exhaustive and an elementary vocabulary for modes of entitlement".15 Surely, Hohfeldian analysis is a valuable first step to understand what we mean when we talk about rights. It is a useful tool of becoming aware of the different features of "rights talk". But that does not rule out the attempt to break down Hohfeld's categories to a more fundamental concept such as the proposed concept of RIGHT. Unger himself, having attacked the "generic conception of rights" is surprisingly lax in his "rights talk": "immunity rights", "destabilization rights", "market rights" and "solidarity rights" are introduced as if the use of the word "rights" becomes less prob- lematic when combined with something else.

I will therefore go back to Hohfeld's categories with the intention to show that his "claim-rights", "privileges", "powers" and "immunities" can be described in terms of RIGHTS. That does not prejudice the question whether we should give up talking about "privileges", etc. This question has to be answered according to the ordinary use of our language in a specific context, be it a political or a judicial one. What- ever denotation is more pertinent, whatever denotation is better understood in describing the underlying legal relation, should be used.

(aa) Claim-rights

14 Unger, CLSM, p. 6. 15 Kennedy/Michelman, 'Are Property And Contract Efficient?', Hofstra L.R. 8

(1980): 711, 757.

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Horst Eidenmuller

The deontic relation expressed by Hohfeld's claim-rights16 is equiv- alent to the definition of RIGHTS. That needs no further explanation.

(bb) Privileges (Liberties)

For Hohfeld, a person x has a privilege vis-a-vis a person y with

regard to an action p if y has no claim upon x that x does not do p.17 Hohfeld thought that the closest synonym to "privilege" would be

"liberty" and "liberty" probably fits even better with common legal language."8 In terms of deontic logic a Hohfeldian privilege (liberty) takes the following form:

Lxyp:= -Ryx p() Oxy p.19

L(iberty) expresses the relationship between x, y and p, the object of the liberty. And a liberty is defined as the negation of a RIGHT. Alexy has pointed out that this definition fails to embrace another important aspect of liberties: that they open up an alternative course of action. X does not have a liberty to walk on a piece of land if y has a RIGHT that he should do so even if y has no RIGHT that he should not.

Alexy therefore comes to the following definition:

Lxyp:= -Ryx-p ^ -Ryxp ) -Oxy-p -

Oxyp.20

In their respective definitions, Hohfeld and Alexy differ from each other in their understanding of the notion "liberty" as it is used in

legal language. Alexy's definition depicts the usage of the word

"liberty" more accurately in most cases. That is not, however, relevant here: Both definitions allow us to express liberties in terms of RIGHTS.

That result must not be conflated with the statement that liberties

16 Hohfeld, 'Some Fundamental Legal Conceptions As Applied In Judicial Rea-

soning', Yale L.J. 23 (1913/1914): 16, 30-32 (hereafter 'Conceptions'). 7 Cf. Hohfeld, 'Conceptions': 32.

18 See Philipps, supra n. 9, p. 394. 19 For a similar definition see Philipps, supra n. 9, p. 395 and Fitch, 'A Revision of Hohfeld's Theory Of Legal Concepts', Logique etAnalyse 10 (1967): 269, 274. 20

Alexy, TdG, p. 204. For Fitch, "~Oxy p" is a "privilege" and "-Oxyp" an

"exemption" (supra n. 19: 274-75).

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Rights, Systems of Rights, and Unger's System of Rights 9

entail RIGHTS. In fact they do not. X's liberty in relation to y to wear a hat does not entail a RIGHT against y that y does not obstruct him when he wears the hat. That is so because to make a proposition about a RIGHT of y (e.g., Ryxp) is not to make a proposition about a RIGHT of x (e.g., Rxyp). And since a liberty of x has been defined as the

negation of RIGHTS of y, it follows that to make a proposition about a liberty of x is not to make a proposition about a RIGHT of x.21

Given the ambiguity of the notion "liberty" and the possibility to

express (Hohfeld's and Alexy's) liberties in terms of RIGHTS, one could argue that we should give up speaking about liberties and instead confine ourselves to talking about negations of RIGHTS. Alexy has advanced two arguments to support speaking about liberties.22 His first argument runs as follows: It is the function of liberties as part of the West German Constitution to limit the possible content of inferior law. This function cannot be performed by the absence of RIGHTS. To

protect liberties, we have to add RIGHTS against the legislature to them which impose DUTIES on the legislature not to interfere with the exercise of the liberties. But then we would have to give up speaking of the violation of liberties. But why should we give up speaking of the violation of liberties when it is their function to limit the possible content of inferior law?

This argument is not convincing. Alexy notes correctly that liberties cannot be violated: whatever the object (p) of a liberty is, where there is a liberty, there are per definitionem neither RIGHTS nor DUTIES. And only where there is a DUTY is it precise to speak of "violation".23 To speak about the violation of liberties is to use short-hand termi-

nology. That is not wrong or illegitimate as long as we are aware that

2 Cf. Kennedy/Michelman, supra n. 15: 753 and Hislop, supra n. 10: 61-62. These two things conflate Perry, 'Taking Neither Rights-Talk nor the "Critique of Rights" Too Seriously', Texas L.R. 62 (1984): 1405-06 ("Those rights-claims that are prlmarily a way of talking about discretionary choices are a ground of duty in the sense that B ought not interfere with A's choice of X because A's choice of X is discretionary"). 22

Alexy, TdG, pp. 207-08. 23 Cf. Kennedy/Michelman, supra n. 15: 753.



Horst Eidenmuller

to say "The state has violated my liberty to free speech" means "The state has violated his DUTY not to interfere with my free speech. This DUTY is correlative to a RIGHT on my side". What is wrong is to make up an argument about the function of liberties out of short- hand terminology. It is not the liberties themselves but the DUTIES not to interfere with them that limit the possible content of inferior law.

Alexy's second argument is a reference to our ordinary language. I take this to mean that we would for example prefer to say that x has a

liberty to wear a hat instead of saying that he has neither a DUTY to wear nor a DUTY not to wear a hat.

But this argument amounts to an unjustified generalization that does not hold good in all contexts. Consider that x walks down the street wearing his hat and is approached by y who asks him to take this hat off In this situation, x will probably not be talking about a

liberty he has concerning the wearing of this hat. He will be pointing to the fact that y has no RIGHT to ask him to take off this hat.24 When x is running a business and y threatens to interfere with that business, x will not be talking about a liberty he has to run the business. He will argue that y has no RIGHT that he, x, does not run the business. So in the context of practical disputes, and thus in the context of juridical adjudication as well, the language argument is not

particularly to the point.25 "Liberties" will, however, probably not disappear from our legal

language. It is often convenient to use short-hand, though imprecise, terminology and a formula like "y has no RIGHT that x does not do

p" might sometimes have an artificial ring. But one should not forget that the talk of liberties is ambiguous and make sure that a precise schematic notation is used where such ambiguities are likely to arise.

(cc) Powers

Hohfeld defined a legal power of x as his ability to effect a par-

24 Cf. Simmonds, Central Issues In Jurisprudence (London: Sweet & Maxwell, 1986), p. 130. 25

Alexy himself relativizes the language argument: TdG, pp. 209-10.

10




ticular change of legal relations by virtue of his volitional control over some superadded facts or group of facts.26 Except that the notion of

"legal relations" is rather vague, Hohfeld's concept of power is intui-

tively clear. A schematic notation of a Hohfeldian power would take the following form:

Pxy(Sy):= F1, F2, . . . F Rzyp V -Rzyp V Ryzp V -Ryzp.

P(ower) expresses the relationship between x, y and Sy. Sy is the

legal status of y. Y's legal status is characterized by the various RIGHTS y has in relation to any other person z (including x) and by the various RIGHTS any such other person z has in relation to y. F1, F2, ... Fn denotes a set of "brute" facts, in Searle's sense, under the control of x.27 The relation between the set of facts under x's control and the effect upon y's legal status is that of a conclusion (-): if F1, F2, . . Fn are performed, a change in y's legal status occurs.

If for example an offeree x accepts an offer of y to sell goods for a certain price, x acquires a contractual RIGHT against y that the latter delivers the goods (Rzyp). Or if an agent x discharges a debt of his

principal y, the latter is exempted from a DUTY in relation to the creditor z, i.e., z loses a RIGHT in relation to y ( Rzyp). If x inflicts

bodily harm on y, the latter gains a RIGHT against x to be compen- sated for the damage suffered (Ryzp).

As liberties, powers cannot be "violated". The factual conditions of the conclusion (F,, F, . . . Fn) simply have or have not been fulfilled.

Only if a power is combined with a RIGHT is it precise to speak of a

possible violation. If x has a RIGHT against y that the latter does not obstruct him in the exercise of his power (Rxy(-obstruct F,, F2, . . .

F)), y is under a DUTY not to do so (Oyx(-obstruct F1, F, . . . Fn). And he may violate this DUTY. Conversely, x may have a power but is under a DUTY not to exercise it (Oxy(-exercise F,, F2, ... F)). And he may violate this DUTY.

26 Hohfeld, 'Conceptions': 44. Similar Hislop, supra n. 10: 63-64 (following Hohfeld) and Fitch, supra n. 19: 275-76. 27 Cf. Searle, 'How To Derive "Ought" from "Is"', in: Foot (ed.), Theories of Ethics

(Oxford: Oxford University Press, 1967), p. 112.

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Horst Eidenmuller

There are, however, problems both with this kind of schematic notation and with Hohfeld's concept of power. First, one might argue that y's legal status is also characterized by various second level powers he has or has not in relation to any other person z and by the various second level powers any other person z has or has not in relation to him.28 This objection can be countered in several ways. Either these second level powers themselves generate or extinguish - if exercised -

only RIGHTS. If so, the objection does not pose a problem because the notation of a certain power will simply be more complicated.

Alternatively, these second level powers, if exercised, generate or

extinguish third level powers and so forth. An example would be the interrelation between the powers of "abandonment" and "appro- priation" with regard to a moveable object. The proposed schematic notation does, however, state only the necessary conditions for a

power. In other words: it does no harm that further powers are

generated or extinguished as long as at least one RIGHT is generated or extinguished as well. And this is true of all examples that Hohfeld

gives for his concept of power. Secondly, Alexy has attacked Hohfeld's concept of power on a

semantic level. Instead of "power", Alexy uses the notion of "com-

petence":

If a commits a tortious act against b, the legal position of a as well as that of b changes. From then on, a Is under an obligation to b to pay damages, whereas b has a corresponding right against a. Nonetheless one would not qualify the committal of a tortious act as exercise of a competence.29

Alexy argues that it is the characteristic feature of exercises of com-

petences that they are institutional acts.30 He gives the example of the rules of chess. Without these rules one could not speak of "moves" or "checkmate" but only of movements of figures on a board. Like the rules of chess, the legal rules establishing a competence give an otherwise "brute" act a different meaning as a certain institutional act. A

28 See Fitch, supra n. 19: 276. 29

Alexy, TdG, p. 214 (my translation). 30 Alexy, TdG, p. 215. He builds on the work ofJ. R. Searle and J. L. Austin.

12




tortious act is not the exercise of a competence, because "it is what it is" and does not change its meaning even though there might be rules

governing liability in tort.31 The thrust of this argument is to link the notion of competence

with institutional acts on a semantic level. It is indeed plausible to assert that there is a difference on this level between for example x the tortfeasor and x the testator. If x injures y, the meaning of this act does not change when there are legal rules to the effect that the combination of these particular facts generates or extinguishes certain RIGHTS and we denote such a fact-combination as a tortious act. But the point of scribbling notes on paper and then leaving our world is a different one when there are rules to the effect that such a fact-combination

brings about a change in the composition of RIGHTS affecting various other persons. X, the note scribbler, plays a game called "will-making". If we accept that to qualify a set of rules as founding a competence on the semantic level is to say that these rules create the possibility of an institutional act, then x who injures y and triggers a RIGHT of the latter against him does indeed not exercise a competence.

It follows that to link the notion of competence with institutional acts on the semantic level, as Alexy does, rules out the possibility of

defining a competence as a set of "brute" facts under x's control that, if

performed, generates or extinguishes RIGHTS affecting other persons. It rules out this possibility because such a definition would be bound "to lose sight of what is the whole point about competences and what

distinguishes them from the possibility to change legal positions by virtue of a tortious act".32

Alexy's concept of "competence" therefore defies a schematic notation similar to that used to describe Hohfeld's concept of "power". Once again, differences on the semantic level are felt on the level of deontic logic.

(dd) Immunities

31 Cf. Alexy, TdG, p. 215 n. 166. 32 Alexy, TdG, p. 218 (my translation, emph. added).

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Horst Eidenmuller

Hohfeld defined an immunity of y as the correlative of the negation of a power of some other person x:33

Iyx(Sy) ) -(Pxy(Sy)).

I(mmunity) expresses the relationship between y, x and Sy. And we can describe the Hohfeldian power "Pxy(Sy)" by the schematic notation that has already been introduced (cf. (cc)).

The notion of "immunity" is, however, ambiguous. Another concept of immunities would be that it is their function to prevent the obstruction of actions rather than to give protection against having one's legal position changed. An immunity might also therefore be described as a combination of a Hohfeldian liberty and a RIGHT:

Iyxp:= Lyxp A

Ryx( obstruct y(p/~ p)).34

In addition to having a Hohfeldian liberty concerning p, y has a RIGHT against x that x does not obstruct him in his choice to

perform or not perform p (p/ p). Despite these ambiguities, "immunities" - as "liberties" - will

probably not disappear from our legal language. But one should make sure that a precise schematic notation is used where such ambiguities are likely to arise.

As has been shown, it is possible to describe Hohfeld's "claim-

rights", "privileges", "powers" and "immunities" by the simple deontic relation that I have defined as RIGHT. This result does not imply that we have to relinquish Hohfeld's categories, but only that we can now better analyze the structure of "rights talk" generally. Nor does this result reflect the fact that "our transformative imaginations may be

deeply limited".35 Innumerable combinations of RIGHTS and the

variety of their objects (p) make them a most useful device in promo- ting social change.6

33 Hohfeld, 'Conceptions': 55. Similar Fitch, supra n. 19: 276. 34 Cf. Alexy, TdG, p. 209 n. 144. 35 Kelman, A Guide To Critical Legal Studies (Cambridge, Mass.: Harvard Univer- sity Press, 1987), p. 279. 36 Kelman's own example for "perfectly rational nondiadic correlates" (supra n.

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Rights, Systems ofRights, and Unger's System of Rights

2. Unger's rights. What then is the analytical structure of the various

rights proposed by Unger in CLSM and FN? Unger is suspicious of

any concept of rights:

... the law might have to distinguish four kinds of rights. The concept of right is subsidiary to that of a system of rights. A system of rights describes the relative

positions of individuals within a legally defined set of institutional arrangements.37

Having said that, Unger proceeds on the basis that a system of

rights relieves him from answering the question about his concept. But he cannot do without a concept. We cannot understand a system of

rights if we do not have a concept of the elements that constitute it. A mechanic who tells us that he has construed a new machine consisting of w, x, y and z has to tell us something about w, x, y and z. And if he starts to explain the function of w, x, y and z (as Unger does), he is

explaining his concept of these elements even though he may delude himself about this fact.

A more serious objection to the attempt made here to discern a rule-like structure in his "immunity rights", "destabilization rights", "market rights" and "solidarity rights" is that they lack such a rule-like structure because they represent only prima facie legal positions that cannot be defined in terms of deontic logic. Unger might argue that the main function of his various rights is to advance a certain political conception and that they are only flexible guidelines in a "context-

smashing" struggle, the programmatic expression of the social ideal he has in mind.

But for analytical purposes we may legitimately assume that Unger talks about definitive legal positions, even if in fact he does not. To have a prima facie RIGHT is always a valid reason to assert that one has a definitive RIGHT as well. Likewise, Unger's various rights, even

35, p. 281) is obviously incorrect: to replace the mother (who has a DUTY to feed her children) by a food bank is not to create a right without an obligation - the correlative DUTY to the RIGHT rests upon the administrator of the food bank. 37 Unger, CLSM, p. 38; see also FN, p. 508.

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if they represent only prima facie legal positions, are equally valid reasons to assert definitive rights in a certain context. And these definitive rights can be analyzed in terms of deontic logic. In Unger's ter-

minology this distinction between prima facie legal positions and definitive legal positions does not arise. It is, however, likely that he would reject the interpretation that his various types of rights represent definitive legal positions, i.e., that they have a strict rule-like character and do not allow for a balancing operation with competing rights. A "reinterpretation of entitlements in the light of general purposes, policies, and principles"38 is necessary and "(n)ow the form of a right can be made to reflect, deliberately and directly, its programmatic impact".39 Nonetheless he sometimes speaks of the "nearly absolute claim of the individual to security"40 that is established by his

immunity rights or a "bright line" that separates the areas of entitlement and nonentitlement in the case of market rights and immunity rights.41 Unger would have advanced the discussion if he had made clear that he is talking about prima facie legal positions that require a

balancing operation with other prima facie legal positions before anything can be said about the definitive legal positions of the persons involved.42

In the next section I will work on the analytical assumption that

Unger's various rights represent definitive legal positions. These definitive legal positions shall be described by the simple deontic relation that I have defined as RIGHT.

(a) Immunity Rights

Under the heading of immunity rights, Unger comes up with a

variety of different entitlements. Immunity rights generally "establish the nearly absolute claim of the individual to security against the state ... and other individuals".43 Sometimes they represent political or civic

38 Unger, FN, p. 523. Cf. also Ibid., p. 530. 39 Unger, FN, p. 520. 40

Unger, CLSM, p. 39. 41 Unger, FN, pp. 523, 530. 42 See also Van Zandt, supra n. 6: 930 n. 178. 43 Unger, CLSM, p. 39; cf. also FN, pp. 524-25.

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rights like freedom of speech. In this case they take the form of Hohfeldian immunities (cf. l.(b)(dd)):

Iyx(Sy) () (Pxy(Sy)).

We can describe the Hohfeldian power "Pxy(Sy)" by the schematic notation that has already been introduced (cf. 1.(b)(cc)).

But immunity rights also include "welfare entitlements".44 Then

they take the form of Hohfeldian claim-rights (cf. 1.(b)(aa)), i.e., RIGHTS:

Rxyp.

In a third category, immunity rights provide "options to withdraw

functionally and even territorially from the established social order".45 Then they take the form of Hohfeldian liberties (cf. 1.(b)(bb)):

Lxyp: = Ryx p.

Thus Unger's immunity rights represent a bundle of rather diverse

legal positions.

(b) Destabilization Rights

Unger refers to his destabilization rights as the "most puzzling piece of the system of rights".46 The central idea is "to provide a claim upon governmental power obliging government to disrupt . . . forms of divi- sion and hierarchy".47 Two versions of destabilization rights have to be

distinguished: "(A) destabilization right might work through a direct invalidation of established law ... in instances in which the law

directly or indirectly threatened the immunity of the individual".48 This version of destabilization rights is supposed to be "defended by an institution similar to the contemporary judiciary".49 An individual (x)

44 Unger, CLSM, p. 39; cf. also FN, p. 528. 45

Unger, CLSM, p. 39; cf. also FN, p. 526. 46

Unger, CLSM, p. 39. 47 Unger, CLSM, p. 53 (emph. added). 48

Unger, CLSM, p. 54. 49 Unger, CLSM, p. 55.

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Horst Eidenmiller

may claim from such an institution (j) that the latter invalidates certain

legal provisions that threaten x's immunity rights (p,):

Rxjp,.

"The destabilization right might also operate in another, far less extreme way. It would act ... to disrupt power orders in particular institutions or localized areas of social practice".50 "The primary respondent to the citizens who claim a right to have an organization or an area of social practice destabilized are the non-governmental organizations or the actual individuals who are legally competent, or

actually able, to reconstruct the objectionable arrangement. The sub-

sidiary respondent is the state, perhaps even a special branch of

government",5 "a public agency that had greater resources at its

disposal".52 In this second version destabilization rights represent claims of an individual (x) primarily upon the non-governmental organization responsible for a power order (o) and subsidiarily upon a public agency (a), to disrupt these power orders (P2):

Rxop2 V Rxap^.

Whereas the structure of both versions of destabilization rights is

identical, they differ in their addressees (y/o-a) and their objects (P,/P2).

(c) Market Rlights

Unger's market rights are the "successors to the absolute, consolidated property right".53 "They represent conditional and provisional claims to divisible portions of social capital."54 "Capital would be made

temporarily available to teams of workers or technicians under certain

general conditions fixed by the central agencies of government."'5

50 Unger, CLSM, p. 54.

51 Unger, FN, p. 530. Cf also Ibid., p. 532. 52

Unger, CLSM, p. 55. 53 Unger, CLSM, p. 39. 54 Unger, CLSM, p. 39. 55 Unger, CLSM, p. 35.

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Though the practical effects of these market rights (which will be discussed in detail below) might be indeed new and revolutionary, their structure is not. Unger's market rights can be described from two different viewpoints. First, if one wants to emphasize the legal relation between the team and the central agency in the phase before the market right has been granted, one arrives at a claim of the team (y) upon the agency (a) to have access to a portion of the social capital subject to the general conditions normally imposed by the agency (p):56

Ryap.

Second, if one wants to emphasize the legal position of the team vis-a-vis any third person x after the market right has been granted,57 one arrives at a Hohfeldian immunity vis-a-vis any other person x that takes the following form (cf. l.(b)(dd)):

Iyx(Sy) () (Pxy(Sy)).

We can describe the Hohfeldian power "Pxy(Sy)" by the schematic notation that has already been introduced (cf. l.(b)(cc)). That Unger's revolutionary impact is built on an old structure is clear when one looks at the two main differences between his market rights and the old "consolidated property right" as Unger conceives it. In the case of market rights the right-bearer is a team instead of an individual (the old property right). And the object of the right is defined in a more

complicated way. It incorporates the various time-limits and conditions set out by the central agencies instead of being unconditional and unlimited (the "consolidated property right"). But the analytical structure has not changed.

(d) Solidarity Rights

Unger's solidarity rights are the new "legal entitlements of com- munal life".8 Each solidarity right has a two-stage career. The initial moment of the right is an incomplete definition that incorporates

56 Unger, FN, p. 520.

57 Cf.Unger, FN, p. 521. 58 Unger, CLSM, p. 39; cf. also FN, pp. 535-39.

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Horst Eidenmiiller

standards of good-faith loyalty or responsibility. The second moment is the completing definition through which the rightholders themselves (or the judges if the rightholders fail) set in context the concrete boundaries to the exercise of the right according to the actual effect that the threatened exercise seems likely to have upon the parties to the relationship".59

It follows from this description that Unger's solidarity rights have the structure of Hohfeldian claim-rights, i.e., RIGHTS in both stages of their "career":

Rxyp.

The difference between the two versions lies again in their object (p). Whereas it is abstract in the "initial moment" ("standard of good- faith loyalty or responsibility"), it is concrete after the "completing definition" ("set in context the concrete boundaries").

Assuming that Unger is talking about definitive legal positions, his four types of rights can thus be described by the simple deontic relation that I have defined as RIGHT. This result will prove useful when we come to examine whether Unger's system of rights -

consisting of these four elements - fulfils the minimum requirements of a system of rights.

B. Systems OfRights

1. A set of minimum requirements. Whenever more than one right exists in a group of two or more persons, we can speak of a system of rights. Unger's various types of rights, attached to the citizens in the em-

powered society in various combinations, form such a system.60 Each system of rights should fulfil certain minimum requirements.

These requirements are discussed now.

(a) Functionality

5y Unger, CLSM, p. 40. 60 Cf. Biillesbach, 'Systemtheoretische Ansatze', in: Kaufmann/Hassemer (eds.), Einfuhrung in Rechtsphilosophie und Rechtstheorie der Gegenwart (Heidelberg: Muller

Jur. Verl., 1989), 5th ed., pp. 332-33.

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Rights, Systems of Rights, and Unger's System of Rights

(aa) Contradictions - Conflicts / Tensions

A system of rights should not contain contradictions and/or conflicts on the level of definitive legal positions and should minimize tensions on the level of prima facie legal positions unless it offers a convincing theory on how to resolve these tensions. I will first deal with contradictions and conflicts on the level of definitive legal positions.

When in a system of rights it is true that a RIGHT exists and that the same RIGHT does not exist then we have a logical contradiction, for which I will use the symbol "| ":

Rxyp I Rxyp.

It also may happen that there is no logical contradiction between two RIGHTS but a conflict in the sense that a person y is simulta-

neously under two DUTIES that he cannot fulfil at the same time.61 For such a conflict I will use the symbol "1":

Rxyp I Rzy-p.

Depending on how abstract the objects p of RIGHTS are defined, contradictions and conflicts are either necessary or contingent. They are necessary when their object is one specific action Pi ("X has a RIGHT against y that y sits on Nelson's column on the 1st of May 1990 at 0900 a.m." "Z has a RIGHT against y that y does not sit

etc."). They are contingent when their objects are stated as abstract formulas that contain a bundle of specific actions p , P2, .. p. ("X has a RIGHT against y that y sits on Nelson's column on the 1st of May 1990 from 0900 a.m. to 1000 a.m." I "Z has a RIGHT that y does not . . . from 0930 a.m. to 1030 a.m."). In the latter case the specific action at issue (pi V P2 . . . V p) has to be worked out in individual cases in order to determine whether a contradiction or conflict has or has not occurred.

That a system of rights should not contain contradictions and/or conflicts between definitive RIGHTS is evident. In the case of a contradiction y does not know whether he has a DUTY in the relation to

61 Cf. Fitch, supra n. 19: 271.

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x concerning the object p or not. In the case of a conflict, y has two DUTIES that he cannot fulfil simultaneously. Contradictions and conflicts on this level can only be resolved if one of the RIGHTS (or the

negation of a RIGHT) is declared void.62 Contradictions and conflicts in this technical sense can only occur

on the level of definitive RIGHTS. Unlike definitive RIGHTS, prima facie RIGHTS do not have a rule-like character. They have the character of principles. Competing prima facie RIGHTS can and must be balanced with each other before we can say anything about the definitive legal positions of the parties involved. We can therefore speak of tensions between clashing prima facie RIGHTS. As opposed to contradictions and conflicts between definitive RIGHTS, tensions between

prima facie RIGHTS can be resolved without having to declare one of the prima facie RIGHTS void.

One strategy to resolve these tensions has been proposed by Alexy,6'

following Dworkin.64 If one has a prima facie RIGHT one has good reasons to assert that one has a definitive RIGHT as well. If two prima facie RIGHTS clash, we apply a relation of preference (P). Such a relation of preference states the conditions (C) under which one prima facie RIGHT (R,) prevails over the other prima facie RIGHT (R2):

(RI P R2)C.65

These conditions (C) are the result of a juridical discourse about the relative strength and importance of both prima facie RIGHTS. A rational juridical discourse presupposes an elaborated theory of juridical argumentation.66 The relation of preference allows us to say that

62 I presume that it is impossible in the system to add an exemption clause to one of the RIGHTS; cf. Alexy, TdG, p. 77. 63 Alexy, TdG, pp. 90-92, 98-99, 122-25. 64 Dworkin, supra n. 12, p. 26 ("the dimension of weight" of principles). 65 Cf Alexy, TdG, p. 83. 61 See Alexy, Theorie der juristischen Argumentation (Frankfurt: Suhrkamp, 1983), pp. 259-361. I think that Duncan Kennedy and Gerald Frug both misjudge the necessity and the potential of such a theory of juridical argumentation when they say that "[tlhe bland rhetoric of tension and balance is ... clearly false" (Kennedy, 'The Structure of Blackstone's Commentaries', Buffalo L.R. 28 (1979):

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under certain conditions (C) it is or is not justified to assert a definitive RIGHT (e.g., Rxyp) grounded in the prima facie RIGHT (e.g., RI).

As opposed to contradictions and conflicts between definitive RIGHTS, tensions between prima facie RIGHTS are not incurable

provided the system offers (or at least refers to) an elaborated theory of

juridical argumentation that tells us how to carry out this balancing operation, i.e., how to find the conditions (C) under which one prima facie RIGHT prevails over the other. If a system of rights does not offer such a theory, we have tensions between prima facie RIGHTS

(R1, R2 ... Rn) and do not know how they are to be resolved. This causes serious problems especially if the system is characterized by a structural propensity to such tensions.

(bb) Practicability

Any system of rights should be practicable in a broad and general sense. That means at least three different things. First, the system should work, i.e., produce a constant flow of input and output.67 Rights that have no application are empty. That is not to say that there are some precisely defined needs or demands in other social sub-

systems to which a system of rights has to respond in a particular way. But a system of rights should not ignore the organizing principles of other social subsystems a limine.68

Second, a system of rights designed to foster the structure of such

209, 214), that "liberal legal theorists" resolve problems of conflicts of rights simply by "choos(ing) either the right asserted by A or the conflicting right of B, and then deduce a subrule that indicates clearly that one wins and the other loses" (Ibid.: 358) or that "the image of judicial balancing ... provides no way to make the distinctions on which it relies to restrain arbitrary power or enhance personal freedom" (Frug, 'The Ideology of Bureaucracy In American Law', Harv. L.R. 97 (1984): 1277, 1351. No such theory is of course immune to the accusation that it merely conceals the fact that the result has been found before the discourse got started. But the whole point about a theory ofjuridical argumentation is to make this danger transparent and to reduce it to a minimum. See also Price, supra n. 5: 284 and Perry, supra n. 21: 1413-14. 67 Cf. Biillesbach, supra n. 60, pp. 338-40. 68 It follows that I disagree with Gordon ('Critical Legal Histories', Stanf: L.R. 36 (1984): 57-125) at least in two respects. (1) I do not think that functionalism is

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other subsystems should not generate substantial counterproductive effects in the sense that instead of fostering this structure, it helps to undermine or even destroy it. Granting rights that are meant to foster certain political or economic purposes but whose implementation produces results that are hardly reconcilable with these purposes is a

self-defeating operation. And third, a system of rights should attempt to structure basic

forms of social interaction instead of destructuring them. One aspect of this point is captured by the phrase the "peace function" of law. A

system of rights might well be an aggressive tool for individuals to restructure the social field. But then it must have a sufficient degree of

clarity in application. If it lacks such clarity, it tends to run out of control.

The case for complying with these requirements of practicability rests primarily on their intuitive plausibility. Systems of rights are not

only objects of theoretical speculation but designed to be made part of

operating legal systems. And a system of rights indifferent to the

practicability requirements set out here produces prima facie undesirable consequences if it is installed in practice. Further arguments would be necessary to support especially the third (and strongest) of these criteria. But such an enquiry falls outside the scope of this study.

(cc) Simplicity

untenable because "law is founded upon contradictions" (Ibid.: 116). Gordon argues that there are "available for the decision of every case matched pairs of arguments that are perfectly plausible within the logic of the system but that cut in exactly opposite directions" (Ibid.: 115). An elaborated theory of juridical argumentation sets out criteria to evaluate the quality of those arguments and tries to show that because some arguments are better than others a rational resolution of conflicts between competing prima facie legal positions is possible. (2) I do not think that a functionalist account of the law disregards the fact that "social interests" themselves are shaped by the legal system (Ibid.: 106). One can concede that there is an interdependence between law and society and nonetheless maintain the law/society distinction in principle. On this point see Jabbari, Critical Legal Studies: A Revolution In Legal Thought ? (paper presented to the 14th World Congress in Philosophy of Law and Social Philosophy in Edinburgh, 1989), pp. 13-23 (building on Teubner's work).

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Rights, Systems of Rights, and Unger's System ofRights 25

Any system of rights should be as simple as possible. This requirement has two aspects. First, simplicity of the objects (p) of RIGHTS is desirable because it promotes their clarity which in turn makes them easier to handle, both for those who intend to make use of them and for those who have - broadly speaking - to administer them. A citizen should know precisely what his RIGHTS are. This aspect of the

simplicity requirement is probably uncontroversial. Second, the more complicated and cost intensive the objects (p) of

RIGHTS are, the higher the immediate social costs of the system if those RIGHTS are to be directly administered or enforced by the state. RIGHTS with a complex structure require large amounts of resources to be administered or enforced. These costs are further increased by the greater quantity of RIGHTS that directly require the deployment of administrative resources. Greater simplicity with lower costs is, like

practicability, not an absolute good in itself. But unless strong counter-

arguments are put forward it is prima facie undesirable to create a

system of rights that requires large amounts of funds to be administered. This is especially true when the system tends to bring about a situation in which the availability of such funds is highly question- able.69

(b) Legitimacy

Any system of rights has a normative dimension. Correlative to RIGHTS (Rxyp), DUTIES express a relational deontic modality (Oyxp). To give a person a RIGHT is to open up this normative dimension. And it is in this dimension that the dispute begins: "How does one know what one ought to do?"70 So we can expect that each system of

rights appeals to some background justification that tells us why we should have this system instead of another system of rights. As far as the deontic relation defined as RIGHT is concerned, such a back-

69 Simplicity as a quality of a system of rights differs from "reduction of complexity" as the purpose of a system of rights. On the latter see Luhmann, Ausdifferenzierung des Rechts (Frankfurt: Suhrkamp, 1981), p. 247. 7) Leff, 'Memorandum', Stanf L.R. 29 (1977): 879, 880.



Horst Eidenmiller

ground theory will argue for certain contents or objects of RIGHTS (p) and for the distribution of RIGHTS amongst different persons.

Background theories may roughly be divided into two classes: theories emphasizing that content and distribution of RIGHTS have come about according to a procedure that is supposed to incorporate a certain degree of fairness (e.g., social contract theories); and theories that resort to higher substantive principles for which they claim ulti- mate authority (e.g., natural law theories).71 To ask for a background justification is not to hope that the theory will convince us and resolve our doubts. We can, however, at least expect the theory offered to

actually support the proposed content and distribution of RIGHTS. If it does not, then we are in the same position as if no background justification has been offered at all.

2. Unger's system. As I said in section A.2, Unger frequently talks about a system of rights.72 But that in itself does not imply that he would

accept the requirements set out here as criteria for any system of

rights. Quite the contrary, one would probably expect protest or even

indignation on his side against such an imputation (and then possibly ignore it with a laconic "So much the worse for Unger"). Surprisingly, however, Unger's writings contain a number of remarks that implicitly concede the relevance of at least most of these criteria. His idea that a

"system of rights describes the relative positions of individuals or

groups within a legally defined set of institutional arrangements"73 presupposes that the system is non-contradictory and "not shot

through" with conflicts on the level of definitive legal positions and that tensions on the prima facie level can be resolved satisfactorily.

7 I depart here from the German "system theory" as presented by Luhmann (cf. supra n. 69, pp. 132-33) both insofar as Luhmann rejects the usefulness of "substantive" principles as a means of legitimation and insofar as Luhmann's

"legitimation through procedure" is neutral with regard to the quality of different procedures; cf. Kaufmann, 'Problemgeschichte der Rechtsphilosophie', in: Kaufmann/Hassemer (eds.), Einfuhrung in Rechtsphilosophie und Rechtstheorie der

Gegenwart, p. 131. 72 See Unger, CLSM, p. 38; see also FN, p. 508. 73 Unger, CLSM, p. 38 (emph. added).

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Rights, Systems of Rights, and Unger's System ofRights

One could of course describe x's position when y has a RIGHT that x climbs Nelson's column and z has a RIGHT that x does not climb Nelson's column as rather precarious. But that is not what Unger has in mind when he speaks about description: "These arrangements must be basic and comprehensive enough to define a social world that encour-

ages certain instrumental or passionate dealings among people and dis- favors others".74 The very notion of the comprehensiveness of the

system with regard to "instrumental dealings" between the people using it cannot be squared with a system that is riddled with contradictions and conflicts on the definitive level or unresolved tensions on the prima facie level. Perplexity blocks comprehension and a lack of

comprehension does not encourage "instrumental" dealings. With respect to the criterion of practicability one can discern a

similar phenomenon. On the one hand, Unger takes up the classic CLS

critique of functionalism when he discusses "Objectivism" as the "search for the built-in legal structure of democracy and the market".75 But on the other hand, he argues from a clearly functionalist stance when he says that "(s)olidarity rights give legal force to many of the

expectations that arise from the relations of mutual reliance and vulner-

ability".76 It is odd to say that solidarity rights are the response to certain "needs" in other social subsystems but that the same criterion does not apply in the case of market rights. Similarly, when discussing the obstacles left-wing governments have to face, Unger states that "the fear of redistribution and reform provokes economic crisis and

capital flight".77 If this is the case, why then ignore expectations that arise from the market?

As regards the criterion of legitimacy, Unger explicitly asks for "a

conception of the ideal that should guide the reconstruction of the institutional forms",78 a "radicalized version of the social ideal"79 and

74 Unger, CLSM, p. 38 (emph. added). 75

Unger, CLSM, p. 5. 76

Unger, CLSM, p. 40 (emph. added). 77 Unger, CLSM, p. 29. 78

Unger, CLSM, p. 22. 79 Unger, CLSM, p. 23.

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sets out in some detail a vision of the individual personality that is

complementary to this new social ideal.80 This strategy is a direct

attempt to legitimize his system of rights. All this is not to say that Unger would take all the criteria discussed

here as the touchstone for his own system. It is quite clear that he would not. Destabilization rights and programmatic slogans like "plas- ticity, the secret of worldly success"8' are openly opposed to the demand for a controlled process of structuring the basic forms of human interaction. Where such opposition occurs, my critique of

Unger's system cannot be immanent and must appeal to the intuitive

plausibility of its tools. One may have a dispute about the relative

importance of such a factor as the social costs generated by a system of

rights. But there is probably little dispute about the general relevance of a factor like this. Moreover, the proposed criteria have the advan-

tage of being neutral with regard to questions of distribution justice. Though they limit the permissible objects (p) of RIGHTS in a society, they do not prejudice the question of how these RIGHTS should be distributed. The following discussion and critique of Unger's system of

rights proceeds therefore on the basis of the proposed set of minimum

requirements for any system of rights.

Institute for Private International and Comparative Law, Munich University, Veterinarstrag3e 5, 8000 Minchen 22,

Germany

80 Cf. Unger, CLSM, pp. 26, 94, 104-05. 81 Unger, CLSM, p. 33.

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Documents

Rights, Systems of Rights, and Unger's System of Rights: Part 1