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15 - Counter-Rights

On the Trans-Subjective Potential of Subjective Rights*

from Part IV - Towards a New Law of Political Economy

Published online by Cambridge University Press:  18 April 2020

Poul F. Kjaer
Affiliation:
Copenhagen Business School
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Summary

In contrast to current versions of critical theory which in their attack on liberal-capitalist societies develop a more or less vague vision of a socialist society, Christoph Menke, - Frankfurt School third generation - in his brilliant monograph, Kritik der Rechte, Suhrkamp 2015 (A Critique of Rights) fights on two-fronts. He directs his critique not only against liberal-capitalist formations with their conglomerates of societal power, but also against socialist-communist formations with their totalising aggregation tendencies. Against both, he attempts to formulate a theory of the authentic political judgment, which is based upon “counter-rights” in a “new law”.

In the face of obvious deficiencies of both formations, this is a remarkable attempt to develop utopian ideas in politics and law. Building on these ideas, the author suggests is to go beyond individual counter-rights on which Menke focuses exclusively, and to articulate genuinely social counter-rights in three dimensions – in the communicative, the collective and the institutional dimension. What is more, they need to be developed in two directions. One direction is the attribution of counter-rights to collectives, organisations, social movements, networks, functional systems, not as substitutes for individual rights to resistance but as their supplements. The other direction is the pluralisation of counter-rights which Menke defines in a unitary manner. Counter-rights will need to be developed with a high degree of variation if they are supposed to overcome motivation constraints in various media of communication.

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Chapter
Information
The Law of Political Economy
Transformation in the Function of Law
, pp. 372 - 393
Publisher: Cambridge University Press
Print publication year: 2020

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