Between Facts and Norms - Contributions to a ... - Blogs Unpad

86Chapter 3---- . ··- ----·-··--Rudolf von Ihering's utilitarian interpretation, according towhich utility and not will makes up the substance of right,8 was laterincluded in this definition: "From a conceptual standpoint, individualrights are powers of law conferred on the individual by thelegal order; from the standpoint of its purpose, they are means forthe satisfaction of human interests. "9 The reference to gratificationand interest allowed private rights to be extended beyond the classof negative liberties. In certain instances an individual right yieldsnot only a right on the part of person A to something protectedfrom the interference of third parties, but also a right, be it absoluteor relative, to a share in organized services. Finally, Hans Kelsencharacterized individual rights in general as interests objectivelyprotected by law and as freedoms of choice (or "Wollendurfen" inWindscheid's sense) objectively guaranteed by law. At the sametime, he divested the legal order of the connotations of JohnAustin's command theory, which had been influential up to thatpoint in the German version of August Than. According to Kelsen,individual entitlements are not just authorized by the will ofsomeone with the power to command, but possess normativevalidity: legal norms establish prescriptions and permissions havingthe character of an "ought." This illocutionary "ought," how-. ever, is understood not in a deontological but in an empirical sense,as the actual validity that political lawgivers confer on their decisionsby coupling enacted law with penal norms. The coercivepower of state sanctions qualifies the lawgivers' will to become the"will of the state."In Kelsen's analysis the moral content of individual rights expresslylost its reference, namely, the free will (or "power to rule")of a person who, from the moral point of view, deserves to beprotected in her private autonomy. To this extent, his view marksthe counterpart of that private-law jurisprudence stemming fromSavigny. Kelsen detached the legal concept of a person not onlyfrom the moral person but even from the natural person, becausea fully self-referential legal system must get by with its self-producedfictions. As Luhmann will put it after taking a further naturalisticturn, it pushes natural persons out into its environment. Withindividual rights, the legal order itself creates the logical space forthe legal subject as bearer of these rights: "If the legal subject . .. isallowed to remain as a point of reference, then this occurs in order