Abstract

This article is an attempt to examine Christoph Menke’s critical theory of modern bourgeois law through the lenses of analytic jurisprudence. We therefore scrutinize some core concepts from his Critique of Rights in order to gain a better understanding of the so-called “new law” which is presented as a theoretical alternative to the allegedly defective law of ius proprium-rights [Eigenrechte]. In the first part, we sharpen Menke’s concept of normativity with a reason-based approach and by using the metaethical notions of formal and robust normativity. This sets the stage for analyzing his brand-new concept of counter-rights [Gegenrechte] in the second part. We identify a whole archipelago of meanings for it and group them by considering potential mereological relations between ius proprium-rights and counter-rights. Our mapping turns out to be fruitful in shedding new light on an already known dilemma for the concept of counter-rights. The final section delivers a sketch of the implementation challenge for counter-rights: How can we achieve a “new law”? We distinguish several conceptions of a corresponding utopia and criticize Menke for resorting to a construction that is based on a fiction.