THE RIGHT NOT TO USE RIGHTSThe myth of the transphenomenalkrisisis devoid of all reference to rights. These are
presented in a systematic combination in the human rights declarations; such declara-
tions, however, neither unfold the full range of their implications nor even mention the
one decisive implication that is common to all of them. It belongs to the very concept of
rights, of natural rights as of positive rights, of human rights as of the individual rights
that are deduced from them, that they include the ‘‘right’’notto exercise them. Whoever
is so disposed may decline to use the right to property and to security, the right to resis-
tance to oppression, and even the right to freedom. But such a person neither renounces
those rights nor forfeits them, but only declines to use them, to appeal to them, and to
make them a ground for action. This undeclared implication of all rights propounds—in
an equally undeclared manner—that the use of all rights and even of the sphere of rights
itself may in principle be declined. It says that one can only be free if one is at liberty to
refuse theuseof therightto freedom; that one can only use a thing, even the ‘‘thing’’ of
one’s own proper person, if one can also refuse to do so; and that one can only resist
coercion when one is free to resist the veryrightto resistance. The privilege not to use
rights is not made explicit in any constitution or any declaration of rights, but is implied
by all of them as a freedombeforethe law andbeforethe right to freedom. This freedom
is the ground for any right to clemency—the right, in other words, to suspend the execu-
tion of a verdict—that is reserved to the sovereign. It is an equivalent to the withholding
of judgmentinthe judgment as it is practiced in the Platonickrisis. But anyone who puts
clemency above right need not appeal to a ‘‘right’’ for this purpose. It is equally possible
to appeal to uncertainties or omissions of right, and possible even to appeal to basic
demands of rights that, due to imponderabilities, can never be translated into codified
right. One such demand concerns the appropriate evaluation of singular occurrences or
deeds, anequity—already demanded by Aristotle—that cannot be secured by a universal
rule or even be brought about by a rule governing the application of rules to individual
cases. The right to prevent a merely mechanical application of right and to therefore limit
the limitations of rights and even right in general as a limit: this right to a suspension of
right may not only intervene as the right to clemency in the transition from jurisdiction
to execution. As the imperative to adjust the judicial evaluation to a particular case and
to consider the interest and weight of conflicting rights, it must also guide any judgment
passed by a judge or a court. In such cases, one no longer speaks of ‘‘rights’’ or ‘‘laws,’’
but of procedural possibilities and liberties of application: in the English-speaking world,
ofjudicial discretion; in the French law system, ofpouvoir d’appre ́ciation du juge.
If right defines the only universally recognized form of social relations, then social
relations consist in a barrier between humans, and antisocial inclinations, linguistic inhi-
bitions, and deadening of the senses is the sense of all social life. Compassion, however,
may lift the barrier that right draws between the one who judges and the one who is
judged, which may lead—both as a chance and as a danger for justice—to a Saturnalian
inversion of the positions in the judicial theater. Tibor De ́ry, a Hungarian author who
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