Idea of Natural Rights - Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 0788503553

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School of Theology at Claremont �

I I I I I I I I I I I I l l l l1 1 1 1 1 1 1 1 1 1001 1363277

Emory University Studies in Law and Religion General Editor John Witte, Jr.

Number 1 Theology of Law and Authority in the English Reformation Joan Lockwood O'Donovan Oxford University Number2 Political Order and the Plural Structure of Society James W. Skillen and Rockne M. McCarthy, editors Center for Public Justice Number3 Faith and Order: The Reconciliation of Law and Religion Harold J. Berman Emory University Number4 Religious Liberty in Western Thought Noel B. Reynolds and W. Cole Durham, Jr., editors Brigham Young University Number 5 The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625

Brian Tierney Cornell University

The Idea of Natural Rights Studies on Natural Rights, Natural Law and Church Law 1150-1625

by Brian Tierney

SCHOLARS PRESS Atlanta, Georgia

EMORY UNIVERSITY STUDIES IN LAW AND RELIGION

The Idea of Natural Rights Studies on Natural Rights, Natural Law and Church Law 1150-1625

by Brian Tierney ©1997 Emory University

Library of Congress Cataloging in Publication Data Tierney, Brian. The idea of natural rights : studies on natural rights, natural law, and church law, 1150-1625 / by Brian Tierney. p. cm. - (Emory University studies in law and religion ; no.

5)

Includes bibliographical references. ISBN 0-7885-0355-3 (paper : alk. paper) 1. Natural law-History. I. Title. II. Series. K445.T54 1997 340'.112--dc21 97-7386

CIP

Published by Scholars Press for Emory University

CONTENTS ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

INTRODUCTION

Modern Problems and Historical Approaches . . . . . . . . . . . . . . . . . . .

1

PART ONE

Origins CHAPTER I

Villey, Ockham and the Origin of Individual Rights . . . . . . . . . . . . . . Classical Roman Law Individual Rights and Natural Law Aquinas and the Canonists: Ius and Lex Ockham's "Revolution" Objections to Villey Alternative Approaches CHAPTER

13

II

Origins of Natural Rights Language: Texts and Contexts, 1150-1250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Question of Origins Sources of Modern Rights Language Canonistic Rights Language-Contexts Canonistic Rights Language-Texts Need and Natural Right Conclusion

43

CHAPTER III

Rights and Duties: A Quaestio of Hemy of Ghent . . . . . . . . . . . . . . . . . . . A Prisonet's Dilemma Ownership of Self

78

vi

CONTENTS

PART TWO

Ockham and The Franciscans CHAPTERIV

The Beginning of the Dispute.............................

From Francis to Ockham Approaches to Ockham

93

CHAPTERV

Languages of Rights................... ................. Hervaeus Natalis. Ius and Potestas Marsilius of Padua. Ius and Lex William of Ockham. Ius Poli and Ius Fori

104

Conclusion

CHAPTERVI

Property, Natural Right, and the State of Nature

Problems of First Acquisition Civilians, Canonists, and Theologians Bonagratia of Bergamo and John XXII Ockham on Property

131

CHAPTERVII

William of Ockham. Rights and Some Problems of Political Thought.....................................

Origins of Jurisdiction Varieties of Natural Law Absolutism and Natural Rights A Rights-Based Political Theory?

170

CHAPTERVIII

Postscript.................... . ..................... ...

195

PART THREE

From Gerson To Grotius CHAPTERIX

Gerson. Conciliarism, Corporatism, and Individualism.. .... . ..

Individual and Community Tuck on Gerson Rights and Conciliarism Rights and Reform Ius and Dominium

207

CONTENTS

vii

CHAPTER X _,,. Almain, Mair, Summenhart ...............................

236

CHAPTER XI Aristotle and the American Indians . ................. .. .. ....

255

CHAPTER XII Rights, Community, and Sovereignty ............. ... ..... ....

288

CHAPTER XIII Grotius. From Medieval to Modern...........................

316

Medieval Survivals Mair. Rights and Needs Summenhart. Varieties of Dominion A New Age

Vitoria. Aquinas and Natural Rights Vitoria. Rights and Indians Las Casas. Indians and Rights

Vitoria. Sovereignty and Divine Right Suarez. Sovereignty and Natural Rights

The Question of Modernity Natural Law and Natural Rights The Right to Property Individuals, Society, and Sovereignty

CONCLUSION .... .......................................... BIBLIOGRAPHY .............................................

346 349

� ACKNOWLEDGMENTS

The author wishes to thank the publishers for permission to reprint, in a revised form, material that originally appeared in the following sources: "Villey, Ockham, and the Origin of Natural Rights," in The Weightier Matters of the Law. Essays on Law and Religion, ed. John Witte Jr. and Frank S. Alexander (Atlanta: Scholars Press, 1988), 1-31. "Conciliarism, Corporatism, and Individualism. The Doctrine of Sub­ jective Rights in Gerson," Cristianesimo nella storia 9 (1988): 81-110. "Marsilius on Rights," Journal of the History of Ideas 53 (1991): 3-17. "Natural Rights in the Thirteenth Century. A Quaestio of Henry of Ghent," Speculum 67 (1992): 58-68. I also want to thank Coraleen Rooney for her skill and care in prepar­ ing successive drafts of the manuscript.

-ix-

� CANON LAW CI TATIONS

Decretum

Decretum Gratiani (ca. 1140). The Decretum was divided into two main sections, Distinctiones and Causae. The Causae were subdivided into Quaestiones. Texts of the Decretum are cited thus: Dist. 42 c.3 refers to the third chapter of Distinctio 42. C.12. q.1 c.2 refers to the second chapter of Quaestio 1 in Causa 12. Two subsections of the Decretum, De consecratione and De penitentia were also divided into Distinctiones. They are cited as De cons. and De pen.

X

Decretales Gregorii Papae IX (1234). This volume is re­ ferred to by the symbol 'X' because it was commonly known as the Liber extra, that is, the book extra to or ad­ ditional to the Decretum. It is divided into books which are subdivided into titles. Thus X.2.12.4 refers to Book 2, Title 12, Chapter 4 of the Gregorian Decretals.

Sext.

Liber Sextus Decretalium Bonifacii Papae VIII (1293). This work is cited in the same way as the Gregorian Decre­ tals, e.g. Sext. 5.12.3.

Clem.

Constitutiones Clementi Papae V (1317). Cited in the same way as the Decretals and Liber sextus, e.g., Clem. 5.11.1.

Extrav. J. XXII

Constitutiones XX Joannis Papae XXII (ca. 1325). This col­ lection was divided into Titles and Chapters but not into separate Books.

Extrav. Com.

Extravagantes Communes. A collection of decretals added to the previous volumes at the end of the medieval period to complete the Corpus iuris canonici. It was again divided into Books, Titles, and Chapters. -xi-

� INTRODUCTION: MODERN PROBLEMS AND HISTORICAL APPROACHES

W:

hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain un­ alienable Rights...." 1 But of course Jefferson's self-evident truths about inalienable rights have not seemed evident to most of the human race over most of recorded history. All civilized societies have cherished ideals of justice and right order, but they have not normally expressed those ideals in terms of individual natural rights-it would be hard, for in­ stance, to imagine a Confucian Hobbes or Locke.Moses gave Command­ ments to the children of Israel, not a code of rights.Plato and Aristotle saw no need to appeal to a concept of natural rights in formulating their po­ litical theories. Roman lawyers too were able to do without such rights in crafting their complex legal system.In considering the origin of natural rights theories we are faced with a historical problem, not a sort of re­ vealed truth. When we address the problem of origins, we need also to bear in mind some of the broader issues concerning human rights in the modern world. Questions like these arise: Were the classical rights theorists of early mod1. Declaration of Independence (1776), "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it and to institute new Government.... "

-1-

2

THE IDEA OF NATURAL RIGHTS

em Europe merely articulating a doctrine that was implicit, if unacknowl­ edged, in all societies? Or is the whole idea of human rights peculiarly a product of Western culture? And if the idea did have a distinctively West­ ern origin can it have any relevance for other peoples? Modern historians, philosophers, and political scientists disagree about such matters. A UNESCO document of 1949 referred to "the antiquity and broad ac­ ceptance of the conception of the rights of man," and suggested that the discussion of such rights goes back to the beginnings of philosophy, in both the East and the West. 2 Few historians would agree with such a broad judgment. Among contemporary philosophers, Alan Gewirth has argued that all humans, simply as conscious agents, must logically claim certain rights for themselves and recognize the same rights in others, specifically rights to freedom and well-being. Gewirth also maintains that rights exist in all societies even when there is no "clear or explicit recognition and elucidation" of the concept of a right. 3 At the other extreme Alisdair Mac­ Intyre, criticizing Gewirth's argument from the standpoint of Aristotelian moral philosophy, dismissed natural rights as mere "fictions," an unfor­ tunate invention of modern liberal individualism that we should do well to discard.4 Arguing from yet another point of view as a political scientist, Jack Donnelly acknowledges that the doctrine of natural rights had a dis­ tinctively Western origin in the "bourgeois revolution" of the seventeenth and eighteenth centuries, but still maintains that the theory so engendered has a universality that makes it generally applicable to all present-day societies.5 The diversity of these opinions suggests that a historical account of the evolution of natural rights theories might contribute something to the modern debates. Historical inquiry cannot solve all the problems of modern philosophers and political theorists, but it might help us to ad­ dress them in a more informed and sophisticated fashion. Donnelly's 2. Human Rights: Comments and Interpretations. A Symposium edited by UNESCO (New York, 1949), 260. 3. A. Gewirth, Reason and Morality (Chicago, 1978), 99.For a more recent restatement of these views, see Gewirth, "Is Cultural Pluralism Relevant to Moral Knowledge?" Social Plzi­ losoplzy and Policy 11 (1994): 22-43. Various criticisms of Gewirth's argument are presented in E. Regis, ed., Gewirth's Ethical Rationalism: Critical Essays Witlz a Reply by Alan Gewirth (Chi­ cago, 1984). 4. A. MacIntyre, After Virtue. A Study in Moral Theory, 2nd ed. (Notre Dame, 1984), 70, "Natural or human rights then are fictions... . " Like MacIntyre, I use the terms natural rights and human rights interchangeably. The term "human rights" is often used nowadays to indicate a lack of any necessary commitment to the philosophical and theological systems formerly associated with the older term, "natural rights." But the two concepts are essen­ tially the same. Human rights or natural rights are the rights that people have, not by virtue of any particular role or status in society, but by virtue of their very humanity. 5. J.Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY, 1989), 88-106.

INTRODUCTION

3

argument, b);}sed on a belief in the innate dignity' of human persons, is humane and sensible, but it could be grounded more securely on a differ­ ent kind of historical analysis. MacIntyre has deplored "the deep lack of historical consciousness" that infects much of modem moral philosophy, but he does not understand the history of the rights theories that he criti­ cizes. Gewirth's philosophical argument is sophisticated and appealing, but it leaves open all the questions that most concern a historian. When did the idea of natural rights find "explicit recognition and elucidation"? What historical context made such a development possible? How did the idea come to survive once it had grown into existence? But when we turn to the historians for enlightenment there is again no consensus. Kenneth Minogue has asserted that the idea of human rights is "as modem as the internal combustion engine."6 Donnelly found a starting point in Locke. An Italian writer has observed, with serene confidence, that scholars agree unanimously on this one point: "The theory of natural rights is born with Hobbes."7 Knud Haakonssen discussed the role of Grotius as an innovator. Richard Tuck emphasized the contribution of Gerson. Michel Villey has maintained, in a long series of publications, that the true "father of subjec­ tive rights" was the fourteenth-century Franciscan philosopher, William of Ockham. Evidently there is room for some further historical clarification. The historian's problem does not consist simply in determining when an idea of natural rights as such emerged. There are many ancillary issues, still matters of current debate, that call for further historical investigation. One such issue concerns the scope of natural rights (assuming that they exist at all) especially as regards "active rights" and "passive rights." All meaningful assertions of rights make claims on other people; but the claims can be of very different kinds. To assert an active right, a right actu­ ally to do something-to dig in my own garden for instance, or to worship as I please-I need demand only forbearance from others. The assertion of a passive right, sometimes called a right of recipience or welfare right, re­ quires that others render to me some good or service-free medical care perhaps. Some modem scholars argue that the multiplication of social and economic rights (or so-called rights) introduces an "artificial inflation" into rights language that finally renders the whole concept of human rights vague and valueless.8 Defenders of welfare rights insist that such rights are at least as essential to human well-being as a mere right to be left alone to pursue one's own interests. On the level of historical discourse, Maurice 6. K. Minogue, "The History of the Idea of Human Rights," in The Human Rights Reader, eds. W. Laqueur and B. Rubin (New York, 1979), 3-17 at 3. 7. N. Bobbio, Thomas Hobbes and the Natural Law Tradition, trans. D. Gobetti (Chicago, 1993), 154. 8. A. Flew, "The Artificial Inflation of Natural Rights," Vera Lex 8 (1988): 4-6. Donnelly defended welfare rights in Universal Human Rights, 31-45.

4

THE IDEA OF NATURAL RIGHTS

Cranston argued that rights of recipience are a recent innovation, un­ known to the classical theorists of the seventeenth and eighteenth cen­ turies;9 but James Tully found a "right to charity" in Locke and, earlier, in Aquinas. 10 Then Richard Tuck, at the opposite pole from Cranston, argued that a doctrine of passive rights existed in medieval jurisprudence before the idea of active rights was articulated. 11 His argument does not, how­ ever, seem conclusive. The historical issue remains unresolved. The argument about active rights and passive rights grows out of a deeper disagreement concerning the proper relationship between indi­ vidual and community in a well-ordered society. Modem libertarians fear the encroachment of state power on the core of individual autonomy that they see as essential for a fully human life. Communitarian critics of rights claims often discern in them an atomic individualism insensitive to any concept of the common good. Among historians, rights theories are often seen as an individualistic reaction against a medieval communal ethic. D'Entreves, for instance, discussing the thought of the seventeenth cen­ tury, wrote, "The new value is that of the individual." 12 Yet Tully has ar­ gued that even such a classic rights theorist as Locke did not treat humans as isolated individuals but always as members of a unified community. 13 Some of the earlier reflections on this theme are discussed in the following chapters. Yet another area of current disagreement concerns the relationship be­ tween modem rights theories and the more ancient doctrines of natural law and "classical natural right." Some scholars see natural rights as es­ sentially extrapolations from principles always inherent in the natural law tradition. This was the position of Jacques Maritain and more recently of John Finnis. Others, especially neo-Thomists like Villey in Europe, and the followers of Leo Strauss in America, vehemently deny any such associ­ ation between the two areas of thought. 14 Writers of this latter group see modem rights theories as radically destructive of the earlier tradition; they maintain that, after Ockham (or Hobbes or whoever is the chosen innova­ tor), rights came to form the real basis of moral discourse and natural law was seen as merely derivative, just a sum of individual rights. Another approach, that we encounter in medieval sources and that might help to 9. M. Cranston, Human Rights Today (London, 1962), 38. Cranston's view w as criticized by D. D. Raphad, "Human Rights, Old and New," in Political Theory and tlze Rights of Man, ed. D. D. Raphael (Bloomington, 1967), 54-67 at 62. 10. J. Tully, A Discourse on Property (Cambridge, 1980), 132. 11. R. Tuck, Medieval Natural Rights Theories (Cambridge, 1979), 13. 12. A. P. D'Entreves, Natural Law (New York, 1951), 54. 13. Discourse, 49. 14. For a review of this question see V. Black, "On Connecting Natural Rights With Natu­ ral Law," Persona y Derecho 22 (1990): 183-209.

5

INTRODUCTION

explain some.early modern texts, suggests that natural rights and natural law are not derived one from the other but that both are derived as correl­ ative doctrines from the same underlying view of human personality. In this way of thinking, it was assumed that natural law left to individuals a sphere of autonomy where the rights inherent in human nature could lic­ itly be exercised. Since this will be a recurring theme in the following work, and since a derivation of natural rights from human nature may suggest some obvi­ ous difficulties to a modern political theorist, it will perhaps be helpful to mention some of these issues at the outset and to indicate briefly why they did not arise in the same way for medieval thinkers. Most obviously, many philosophers nowadays would deny that there is any such thing as a common or universal human nature, an essence that precedes and antedates history." 15 I should explain therefore that, in referring to human nature here and in subsequent discussions, I am not attributing to the authors concerned any doctrine about some abstract essence" supposed to inhere in all humans or any particular theory of universals. Medieval rights theories were not typically derived from such metaphysical considerations. Indeed, in the course of medieval thought, basically similar ideas about natural rights were propounded by phi­ losophers-Thomists, Scotists, and Ockhamists-who held very different views on universals and essences. And in the postmedieval world doc­ trines of rights continued to be asserted by writers who had rejected the whole framework of scholastic thought. The medieval jurists, in whose works a doctrine of natural rights first grew into existence, did not specu­ late about essences at all. It was enough for them-as for Locke in a later age-to perceive that humans displayed certain relevant characteristics, the most important ones in this context being rationality and free will. Another evident problem for historians is that, if natural rights are in­ herent in human beings as such, they must always have existed; and this seems contradicted by the lack of such rights in many societies through­ out the course of history. But the idea of natural rights is a moral one. It does not refer to the rights that people can actually exercise in any given society but to rights that ought to be recognized in all societies because they are necessary for the fulfillment of some basic human needs and purposes. This may seem only to lead on to another difficulty. I am thinking now of Hume's familiar argument that we cannot derive moral statements from factual ones. How, then, can we derive moral propositions about natural 11

11

15. Richard Rorty, "The Priority of Democracy to Philosophy," in A. R. Malachowski, ed.,

Reading Rorty. Critical Responses to Philosophy and the Mirror of Nature (and Beyond) (Oxford,

1990), 281.

6

THE IDEA OF NATURAL RIGHTS

rights by reflecting on the facts of human nature? Hume's argument seems persuasive if we apply it only to external nature. Probably we cannot deduce moral principles from studying the behavior of stones and stars and waterfalls. But medieval rights theories typically did not start out from cosmic nature and, when medieval thinkers reflected on the nature of human beings, one fact they perceived-or thought they perceived-was that human rationality included a capacity for moral discernment; and from this fact it followed, for them, that humans ought to do what they discerned to be right. Evidently this would not satisfy a modern Humean critic. And of course medieval writers did not provide an answer to Hume's argument; but this was because it did not arise for them; their way of thinking elided it. Although Hume's problem did not directly concern medieval authors I have mentioned it here because it does have a relevance for a historian of medieval thought. The argument about moral statements and factual ones is often roughly paraphrased as, "You can't get an ought from an is." Philosophers have worried endlessly about the validity of this proposition. But historians face a different kind of problem. We start out from an aware­ ness that there is an "is" standing behind every "ought"; our task is to understand the "isness" within which certain kinds of "oughtness" can be expected to flourish. That is to say, we are concerned to identify the his­ torical contexts within which certain moral values will be cherished and certain related ideas, like the idea of natural rights, will seem appealing. I do not mean that all morality is relative; only that moral thought does not exist in a vacuum. In any given historical situation we can expect to find some moral doctrines emphasized while others go unrecognized or ne­ glected. The story of natural rights must, therefore, be in part a story of the environments within which such a concept could take root and flourish; and to make the story intelligible we need especially to remember that a historical environment is not constituted only by a play of contingent events at some particular time and place, but also by the whole tradition of thought and language that a society inherits from its past. The studies that follow attempt to explore the early tradition of natural rights thinking from which the doctrines of the modern world are ulti­ mately derived. They are presented as ventures into a terrain that has not been very thoroughly explored in recent scholarship. We have a huge body of work on present-day rights concepts-one author recently referred to a "welter" of such theories. There also exists an abundant literature on the classical rights doctrines of the seventeenth century; indeed it is hard to keep up with the output of the Hobbes and Locke industry alone from year to year. But, compared with this flood of work, there has been only a thin trickle of writing on the idea of natural rights in the premodern era. The field has not been entirely neglected of course. Scholars like Michel

INTRODUCTION

7

Villey and Ri�hard Tuck have made important contributions to the discus­ sion of medieval rights theories; but it seems to me, for reasons that will be considered later, that the arguments they have presented are not altogether adequate or satisfying.1 6 Some of the chapters below were originally published as separate articles and others were at first conceived of in the same way. (The long section on the Franciscan poverty dispute was planned as a group of separate essays to which I added a summarizing Postscript.) The published articles have been rewritten so as to eliminate some of the repetition that inevitably occurs when an author returns to the same theme again and again. I hope that the reader will excuse such overlapping as remains. In any case, it will be evident that these sections of the book were originally composed as freestanding essays. In particular, the argument in several chapters moves from medieval ideas to early modern ones and sometimes to contemporary rights discourse. It would be more chronologically tidy, I suppose, if all the modern material were presented at the end of the book. But, in writing the separate articles, I wanted to illustrate the variety of medieval source materials that we need to consider in order to under­ stand adequately the origins of modern rights theories. I also wanted to show that, in medieval thought, there existed, not just some vague idea of a natural right, but many of the specific themes that we encounter in mod­ ern works on rights-a distinction between natural rights and positive rights, rights considered as protected choices and as protected interests, active rights and passive rights, alienable natural rights and inalienable natural rights, adventitious rights, rights that were also duties. Medieval thinkers did not categorize all these different kinds of rights, argue about their relative value, and then choose some particular class of rights to emphasize as most essential in the manner of many modern rights theorists. But modern rights theorists argue in the way they do only because the concepts they discuss were already present, and so avail­ able to them, in the tradition of discourse that the modern world inherited. So, in often calling attention to parallels between medieval and modern ideas, I was not intending just to make facile comparisons; I was hop­ ing to make the whole tradition of thought more intelligible. The po­ litical culture of the seventeenth century was evidently different from that of the thirteenth; but we cannot understand just how it was differ­ ent, or how it became different, unless we first learn to know what the early modern world inherited or reappropriated from the preceding me­ dieval era. We shall not fully understand how a culture of rights grew up 16. On Villey see below, 1 3-42. For criticism of Tuck see my "Tuck on Rights: Some Me­ dieval Problems," History of Political Thought 4 (1983): 429-41. And see below, 217-20, 320-24.

8

THE IDEA OF NATURAL RIGHTS

in Western society until students of modern rights theories are willing to engage seriously with the considerable body of material that is being made available-belatedly perhaps-by medievalists. Among modern scholars, probably the most widely accepted account of the origin of natural rights theories is the one presented by Michel Villey; he saw the modern idea of subjective rights as a revolutionary innovation, inspired by the nominalist and voluntarist philosophy of William of Ockham. My book begins, therefore, with a critical study of Villey' s thesis. The discussion then moves to the canonistic jurisprudence of the late twelfth century. Here, I argue, we can find an important shift of language, a new understanding of the old term ius naturale as meaning a kind of subjective power or ability inhering in individuals, along with an influential doctrine of permissive natural law. 1 7 The availability of this lan­ guage, it is suggested, facilitated the growth of a new theory of natural rights alongside the old natural law teaching. The assimilation of the ju­ rists' ideas into medieval philosophy, and their further development there, is first illustrated from the work of Henry of Ghent, who wrote interest­ ingly on the theme that every individual has a property right in his own person. The essays on the Franciscan poverty dispute reconsider the work of William of Ockham in the context of the varied literature evoked by the controversy. Ockham is presented in my work as an important figure in the development of natural rights theories; but I argue that his char­ acteristic teachings were not derived from his nominalist and voluntarist philosophy, but rather from a rationalist ethic applied to a body of juristic doctrine available to him in the canon law collections that he knew well and frequently cited. A chapter on Gerson treats the French theologian within the context of the Conciliar movement for church reform. It dis­ cusses the coexistence in his work of an active concern for individual rights with a profound sense of the church as a mystical body, a holistic corporate community. The next part of the book deals with late medieval scholastic thought where, for a time, the idea of natural rights seemed to be losing its relevance to the real life problems of the age. Then I turn to the impact of the European encounter with America on the growth of natural rights theories. This chapter is also concerned with the fusion of Thomist philosophy and juristic thought in the works of the sixteenth­ century Spanish scholastics. Their writings represent the final phase of the medieval tradition of thought concerning natural rights and the relation­ ship between individual and community that Grotius inherited and 17. I have not included a chapter on the rights theories of the great thirteenth-century canonists because this topic is thoroughly treated in the important article of Charles J. Reid, "The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry," Boston College Law Review 33 (1991): 37-92. Reid provides a detailed Hohfeldian analysis of thirteenth-century rights concepts.

INTRODUCTION

9

passed on to-the modern world. Especially in the later chapters, the argu­ ment of the book is concerned both with the formalistic problem of how the term ius naturale came to be understood as meaning a natural right and with the paradigmatic rights to liberty, property, and resistance to tyranny that became central to the Western rights tradition. I hope that my chapters present an accurate account of the principal stages in the growth of medieval natural rights theories, but I know that they do not exhaust all the available material. There is room for further re­ search in several areas. We need, for instance, more work on the concept of rights in English common law, in the medieval glossators of Roman law, and in the late medieval jurists, both civilians and canonists. These latter writings often provided the immediate sources through which early modern authors had access to earlier medieval teachings. Apart from studies on Aquinas and Ockham, there has been relatively little work on the idea of rights in the writings of medieval philosophers and theolo­ gians.1 8 Also, many sixteenth-century Spanish authors made significant contributions besides the few that I have discussed. My book will serve a useful purpose if it helps to stimulate more work in these fields.

18. When this book w as almost ready to go to press Dr. Annabel Brett very kindly let me see the typescript of her forthcoming work, Liberty, Right and Nature: The Language of Indi­ vidual Rights in Later Scholastic Thought. Dr. Brett provides much valuable material on the concept of rights in medieval philosophical w ritings. Her work came too late for me to make any substantial use of it, but I have added a few last-minute references.

ORIGINS

ONE � VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

lf n a long series of studies, published over a period of forty years, Jl Michel Villey has made notable contributions to our understanding

of legal history. His thought is always interesting, sometimes idiosyncra­ tic. Here I want to discuss only one particular aspect of Villey's work, his account of the origin of Western rights theories. The concept of individual subjective rights has become central to our political discourse, but we still have no adequate account of the origin and early development of the idea. 1 The lack of such work leaves open one of the central problems of modern debate-whether the idea of human rights is something universal, common to all societies, or whether it is a distinc­ tive creation of Western culture, which emerged at some specific, identifi­ able point in European history. Villey quoted the eminent jurist Gabriel Le Bras as saying that the idea of subjective rights goes back all the way to Adam and Eve; 2 but Villey himself maintains a very different point of view. He is impatient with scholars who introduce modern ideas of sub­ jective rights into their studies on "Roman law, medieval law, and even in 1. A bibliography of several hundred works is presented in R. Martin and J. W. Nickel, "A Bibliography on the Nature and Foundations of Rights 1947-1977," Political Theory 6 (1978): 395-413. In.spite of its length, the list is far from complete. For instance, only one minor paper of Villey is included. 2. La formation de la pensee juridique moderne, 4th ed. (Paris, 1975), 226. - 13 -

14

THE IDEA OF NATURAL RIGHTS

their expositions of cuneiform law."3 For Villey the idea of subjective rights appeared at a particular time and place and in response to a particular set of circumstances. After some hesitation in his earlier papers, he defined the occasion of its emergence in a group of studies published in the 1960s, and has since adhered to the position presented there. His argument is set out with clarity and force. The modern idea of subjective rights, Villey asserts, is rooted in the nominalist philosophy of the fourteenth century, and it first saw the light of day in the work of William of Ockham. Ockham inaugu­ rated a "semantic revolution" when he transformed the traditional idea of objective natural right into a new theory of subjective natural rights. His work marked a "Copernican moment" in the history of the science of law. 4 Villey's argument has been widely and uncritically accepted. Nowa­ days Ockham is often regarded as the originator of modern rights theories, at least among scholars who seek an origin for them before the seventeenth century. This is partly because of Villey's work, partly because some of the ideas he uses were developed independently by other well-known schol­ ars. Villey is like Georges de Lagarde, for instance, in treating Ockham as a radical innovator in rights theories, and like Leo Strauss in contrasting an older Aristotelian doctrine of natural right with a newer theory of indi­ vidual subjective rights-much to the advantage of the former. 5 (Respond­ ing to some German jurists who proposed as a slogan Zuriick zum Kant, Villey offered as a counter slogan Zuruck zum Aristoteles. 6 ) But Villey is un­ usual in the exceptionally far-ranging studies on ancient and medieval jurisprudence which he presents as a foundation for his arguments. The whole body of his historical work has never been subjected to a thorough3. "La genese du droit subjectif chez Gillaume d'Occam," Archives de philosophie de droit 9 (1964): 97-127 at 102. 4. La formation, 225, ". . .l'idee du droit subjectif procede elle aussi du nominalisme et si explicite avec Occam"; 261, "Revolution semantique a elle seule riche de consequences . . . Nous sommes ici-meme au moment copernicien de l'histoire de la science du droit." 5. See Georges de Lagarde, La naissance de I' esprit laique au declin du moyen age, 5 vols.2nd ed.(Paris, 1956-70). (The first edition was published in six volumes, 1934-46.) Leo Strauss, Natural Right and History (Chicago, 1950). H. Rommen also presented Ockham as the initiator of modern rights theories in "The Geneology of Natural Rights," Thought 29 (1954): 403-425. Villey's view on Ockham as the originator of rights theories is widely accepted in current American studies. See e.g., L. Dumont, Essays in Individualism (Chicago, 1986), 62-66 and Martin P. Golding, "The Concept of Rights: A Historical Sketch" in B. Bandman ed., Bioethics and Human Rights (Boston, 1978), 44-49.Golding's discussion of Ockham here was based on Villey.Others rely on Villey at second hand by citing Golding, see e.g., the papers by J. R. Pen­ nock and Kurt Baier in J. R. Pennock and J. W. Chapman eds. Human Rights: Nomos XXII (New York, 1981), 1-28, 201-29. In similar fashion Isaiah Berlin cited Villey in his famous essay, "Two Concepts of Liberty," in Four Essays on Liberty (Oxford, 1969); then A.I. Melden cited both Berlin and Golding in his Rights in Moral Lives (Berkeley, 1988). For further refer­ ences see below, 118 n.50. 6. See below n. 31.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

15

going apprafsal Yet any scholar who wants to work in this field has to come to terms with his impressive synthesis.7 In the following discussion I shall describe and criticize the various stages of Villey's argument as it developed down to the time of his de­ finitive work on Ockham and then, more constructively, indicate some alternative approaches to the problems he has discussed.8 CLASSICAL ROMAN LAW

Villey's distinction between ancient and modern thought about rights was first developed in a series of studies on classical Roman law.9 A semi­ nal article of 1946 on the concept of ius started out from the observation that some early modern jurists radically misrepresented classical jurispru­ dence as a system of individual rights. 1 0 1he seventeenth-century lawyer Feltmann, for instance, organized his presentations of Roman law around the categories of Rights in Persons, Rights in Things, and Rights to Things ( jura in persona, in rebus, and ad res).11 But, Villey points out, there is no such classification in classical law. The division of law presented by Gaius was into Persons, Things, and Actions. The "Things" were again divided into corporeal things and incorporeal things. These latter (res incorporales) were 7. Villey's ideas have been presented in many scattered articles and several works of synthesis. Three volumes of collected essays have appeared, Ler;ons d'histoire de la phi­ losophie du droit (Paris, 1957); Seize essais de philosophie du droit (Paris, 1969); Critique de la pensee juridique moderne (douze autres essais) (Paris, 1969). Villey's other books (besides La formation cited above) include Le droit et les droits de l'homme (Paris, 1983) and Philosophie du droit l, Definitions etfins du droit, 3rd ed. (Paris, 1982); 2, Les moyens du droit, 2nd ed. (Paris, 1984). 8. In Villey's writings the same arguments are often reformulated with different nu­ ances in successive publications. I have tried to select for comment a group of works that illustrate the development of his thought from the 1940s to the present. 9. Recherches sur la litterature didactique du droit romain (Paris, 1946); "Du sens de !'ex­ pression jus in re en droit romain classique" in Melanges Fernand de Visscher, II, Revue in­ ternationale des droits de l'antiquite 2 (1949): 417-436; "Suum jus cuique tribuens," in Studi in onore di Pietro de Francisci, 4 vols, 2 (Milan, 1956): 361-371. 10. "L'idee du droit subjectif et les systemes juridiques romains," Revue historique de droit Jranr;ais et etranger, Series 4, 24 (1946): 201-227. The outline of Villey's views on Roman law given above is based mainly on this article. It is often cited in Villey's subsequent works. His most recent restatement of the argument is in Le droit et Jes droits, 55-79. 11. Ibid., 202. The persistence of this earlier way of thinking can be illustrated from a textbook of 1890. The author rendered Caius' "De Personis" as "Equal Rights" and "De Rebus" as "Unequal Rights." See E. Poste, Elements of Roman Law by Caius (Oxford, 1890), xv-xvi. By that time though, Henry Sumner Maine was arguing that "the Romans had not attained, or had not fully attained, to the concept of a legal Right, which seems to us elemen­ tary." Dissertations on Early Law and Custom (New York, 1883), 365. The debate about the meaning of ius in Roman law goes back to the seventeenth century. Villey has an interesting discussion in "Les origines de la notion de droit subjectif," Archives de philosophie du droit 2 (1953-54): 163-187.

16

THE IDEA OF NATURAL RIGHTS

legal constructs, legal attributes inhering in external corporeal entities. And, for the classical jurists, ius was precisely such a res incorporalis. This is Villey's central point. To a modern jurist a right is a power; to a classical jurist a ius was a thing. Thus, to a lawyer, a fundus was not just a field, a plot of material land, but a field with all its legal attributes. These could in­ clude what we might call rights-a right of usufruct for instance-and the word ius was used to describe such things in classical law (ius utendi fru­ endi). But the Roman lawyers did not have in mind our modern concept of ius as a subjective right of an individual. For them ius was not a power over something; it was a thing itself, specifically an incorporeal thing. 12 Villey maintains that, although there existed at Rome practical situ­ ations that we should discuss in terms of rights, the concept of an in­ dividual right was lacking in classical jurisprudence. He defends this interpretation by several lines of argument. For instance, in discussing urban servitudes, Gaius wrote of a ius altius tollendi. At first glance it seems clear enough that Gaius was writing about a right in the modern sense, a "right of building higher." But Gaius went on to mention a "ius . . . non extollendi." We cannot possibly translate this as "a right of not building higher." So Gaius's concept of a ius is just not congruent with our concept of a right. 13 It is the same with Ulpian's famous definition of the function of jus­ tice-to render to each his right (suum ius cuique tribuere). Here again we seem at first sight to be dealing with the modern idea of inherent indi­ vidual rights. But Villey points out that ius here has a different meaning. It refers to the just share, the just due, of some one within an established structure of social relationships, varying with each person's status and role. In this sense the word ius could imply a disadvantage to an individ­ ual. Villey observes that the ius of parricide was to be sewn up in a sack of vipers and thrown into the Tiber. 14 Again the meaning of ius is not con­ gruent with our idea of a right. The Romans did have a concept of mastery, power over persons or things, expressed by the word dominium. But, Villey insists, this dominium was not defined as a right. A dominus, for instance, was not said to have a right of usufruct in his own property. Ulpian wrote, dominus . . . utendi fru­ endi jus separatum non habet. Gaius also distinguished between the two concepts in the phrase, sive dominus sive is qui ius habet. 15 The point is im12. "L'idee du droit subjectif," 210, 219-220. Villey persistently indicates that for him the modem idea of a right implies a power. He does not concern himself much with the more elaborate classifications of rights, like that of Hohfeld, commonly encountered in the Anglo­ American literature. 13. "L'idee du droit subjectif," 217. 14. "Suum jus cuique tribuere," 364. 15. "L'idee," 219. "Les origines," 173. Villey returned to these texts of Roman law over and over again in later writings.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

17

portant for Vrlley.An owner certainly had the powe� to use and enjoy his own property.But this power was not a ius. Once again, for the classical jurist, a ius was not a power but an immaterial thing.Hence it was not a right in our sense.In other works Villey maintained that dominium itself was not a construct of law for the classical jurists, but a pre-legal reality, something that law limited.1 6 These arguments are of fundamental importance for Villey's later work on the origin of rights theories, so they need a little further consid­ eration. There are evident criticisms to be made.It may well be that the Romans had a highly developed concept of individual rights but used some word other than ius to express it.17 It is also possible that Villey was too narrowly selective in the texts he chose to illustrate the meaning of ius itself. Gewirth, for instance, pointed out that even modem authors who want to deny the existence of rights in Roman law find it necessary to use the term "a right" (or "un droit") in the modem sense in explicating the relevant texts. 18 Again, the separation between ius and dominium is crucial for Villey's argument. But in classical literary Latin one could certainly refer to ius and dominium as inhering in the same subject. (Livy mentioned a subordinate king who acknowledged that ius and dominium over his lands remained with Rome.19 ) In legal Latin too, from the fourth century onward, the two concepts were commonly confused in phrases like iure dominii possidere. Ernst Levy gave many examples and observed that "the former strict contrast of dominium and ius in re aliena was done for. It did not survive."20 One might further argue that, even in Gaius himself, the concepts of potestas and dominium and ius seem to be all interwoven in a passage like this: Slaves are in the power ( potestate) of their masters (dominorum) . . . if the cruelty of the masters seems intolerable they are compelled to sell their slaves . . . for we ought not to use our right (iure) badly. 21

It is hard not to see here an assertion of the subjective right of the master consisting in his power over the slave who was under his dominium. 16. E.g., La formation, 235, "La puissance absolue qu' exerce le maitre romain sur sa chose, ce n'est point le droit, c'est le silence, ce sont les lacunes du droit." 17. This was suggested by G. Pugliese, "'Res corporales', 'res incorporales' e il problema del diritto soggetivo," Studi in onore di Vincenzo Arangio-Ruiz 3 (Naples, 1954): 223-60. 18. Reason and Morality (Chicago, 1978), 372. Gewirth mentioned Jolowicz, Buckland and Villey himself. 19. Ab urbe condita, 45.13.15. 20. E. Levy, West Roman Vulgar Law (Philadelphia, 1951), 63. See also ibid., 26, 64-5. 21. F. de Zulueta ed., The Institutes of Caius 1 (Oxford, 1946): 17 (Inst. 1.52), "In potestate itaque sunt serui dominorum. . . . Si intolerabilis uideatur dominorum saeuitia cogantur seruos suos uendere . . . male enim nostro iure uti non debemus."

18

THE IDEA OF NATURAL RIGHTS

As we are so often told nowadays, all language is context-dependent.22 A legal term deployed in the cultural context of ancient Rome cannot have exactly the same range of meanings as the same term used nowadays (though the meanings may overlap).But one could make this same point about the language of Ockham or Hobbes or Kant, and Villey does not hesitate to attribute a modern idea of rights to such authors.23 The harshest criticism that could be made of Villey's treatment of Roman law-it could apply also to his later discussion of Thomas Aquinas-is that he selects a few suitable texts, drapes a whole theory of law around them, and then refuses to take seriously any texts that do not fit his preferred theory. Responding to such criticisms many years after his original article appeared, Villey explained that, in discussing classical law, he was not concerned with literary Latin or the language in common use.It would be impossible, he concedes, to prove that the concept of subjective right never existed at all at Rome.Villey even adds that such a negative en­ quiry would have little interest.The point is that in classical Roman law we have a whole structure of language built around a set of concepts different from the ones we often take for granted. 24 (Although Villey does not write in the jargon of modern French structuralism his whole mind-set seems to be structuralist. For him-as for Saussure, as for Levi-Strauss-patterns of relationship matter more than particular instances.) Put in this way Villey's position is defensible. He was indeed making a valid point all along. Roman jurists did not conceive of the legal order as essentially a structure of individual rights in the manner of some modern ones. Still, if we concede that, in some forms of discourse from classical times onward, the word ius could mean a right, then the case for a "se­ mantic revolution" in the fourteenth century is apparently undermined. Indeed, in some of his earlier work Villey seemed to favor a more gradual, evolutionary approach. He often used the word glissement to indicate a "sliding," a "shifting" in the meaning of the term ius that occurred over a period of several centuries.A paper on the medieval glossators of Roman law (first presented in 1947) is especially valuable for the substantial body 22. "L'idee du droit subjectif," 225, "Les Romains s'interessent si peu a l'idee du droit subjectif qu'ils n'ont pas meme de terme generique pour l'exprimer." See also "Les origines," 170-173. 23. One may doubt, for instance, whether any author before the twentieth century used the word "right" with precisely the same range of connotations that one finds in the United Nations Universal Declaration of Human Rights. R. Tuck Natural Rights Theories: Their Origin and Development (Cambridge, 1979), 2, also raises the issue of language as "theory-dependent" in considering late Roman law but does not pursue the point in considering later texts. 24. "Travaux recents sur les droits de l'homme," Archives de philosophie du droit 26 (1981): 411-418. Villey presents a more nuanced discussion on ius in Roman law in Philosophie du droit, 1: 87-96.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

19

of medieval fe,(ts collected in a long appendix.25 Villey repeated here that the idea of subjective right did not exist in classical law, but he found hints of it in the law of the late Empire and a substantial development of the concept in the writings of the medieval glossators. In this paper, Villey was mainly concerned to argue that, before the early modern period, the technical term ius in re did not have the full sense of modern property right, the droit reel of French law, a power over prop­ erty enforceable against all other persons. (He mentioned that the accusa­ tive form ius ad rem could mean a subjective right, 26 but did not explore in detail the intricate development of the canonistic doctrine on ius ad rem from 1200 onward.) The author makes his technical point about ius in re, though to a reader more open to the idea of an earlier origin for modern rights theories the "exceptional" texts he cites might seem more striking than the ones that directly support his argument. Villey recognizes in this paper that the medieval glossators created a new terminology, "new no­ tions and, in particular, new words designating subjective rights." They treated the Roman actio for instance as a subjective ius. But their analysis of rights was concerned mainly with the term dominium. They understood the word in non-classical ways, so that dominium itself came to be regarded as a ius. Setting out from the word dominium, Villey observes, the glos­ sators built a "grand echafaudage logique de notions de droit subjectifs." 27 All this would again seem to suggest a pre-fourteenth-century origin for modern rights theories. But Villey resists this conclusion. The glos­ sators' work, he says, was full of hesitations and contradictions and frustrated endeavors. A coherent jurisprudence of individual rights could be created only in a later epoch, in a different climate of thought. In this paper Villey associated the later emergence of such a jurisprudence with "the cogito ergo sum of Descartes," "the psychological literature of the seventeenth century," and "Jesuit spirituality."28 At one point in the paper he described medieval Roman law as marking an era of transition in rights theories-suggesting a process of continuous development. But at another point he asserted that the early modern jurists "broke with history" and adopted "a new language. "29 The reason for this uneasiness becomes clearer in his later work.

25. "Le 'jus in re' du droit romain classique au droit moderne," in Conferences faites a l'Institut de Droit Romain en 1 947 (Paris, 1950), 187-225. 26. Ibid., 203. 27. Ibid., 198-200. On subjective right and ius in Roman law see also H. Coing, "Zur Geschichte des Begriffs 'subjektives Recht"' in Coing et al., eds., Das subjektive Recht und der Rechtschutz der Personlichkeit (Frankfurt am Main, 1959). 28. Ibid., 190-91. 29. Ibid., 204, 191.

20

THE IDEA OF NATURAL RIGHTS

INDIVIDUAL RIGHTS AND NATURAL RIGHT

An underlying reason for Villey's reluctance to acknowledge a con­ tinuity between medieval and early modem thought, even when such continuity was suggested by his own texts, was his prior conviction that major shifts in legal and political ideas could occur only after an appro­ priate pattern of thought had been created in the sphere of pure phi­ losophy. For Villey metaphysics always comes before jurisprudence. Aris­ totelian thought provided a basis for the classical doctrine of objective natural right; Ockham's nominalism made possible the early modem theories of natural rights; and Kant's philosophy provided an immediate source for the subjective rights of nineteenth century jurisprudence. Villey's attitude is summed up in an early comment on Ockham; "La phi­ losophie avait, comme il est ordinaire, precede les juristes sur la voie revolutionnaire. " 30 Villey explored these themes in many articles from the 1950s onward. There was a certain broadening of conceptual horizons in his work. The early papers on Roman law had treated ius as something objective but only as a legal quality inhering in some external entity (as usufruct might inhere in afundus). In his subsequent work he was more concerned with ius naturale as an objective right order in relationships between persons. Similarly, when he wrote about subjective rights (or the lack of them), he was at first concerned with legal rights, rights within an established system of human law, specifically Roman law. In later works the empha­ sis was more on natural rights, rights conceived of as inherent in the human personality. In his "Abrege du droit naturel classique" (1961), Villey wrote, "Subjective rights from their origin and still today are con­ ceived of as natural rights."31 This emphasis helps to explain why Villey could acknowledge that the word ius could vaguely mean a right from the time of the late Roman Empire onward and still see a radical change in the fourteenth century. What was lacking before then was the full idea of sub­ jective rights, rights inhering in the individual person as such. The "Abrege" and the first edition of La formation written at about the same time, provide a good introduction to Villey's understanding of the contrast between classical natural right and modem individual rights. These works also make clear his distaste for modem rights doc­ trines. Villey objects to the subjectivism of contemporary rights theories. He reacts with understandable irony to the vague catalogues of more or less worthy aspirations that are nowadays presented as lists of "human rights"-a "right to leisure," "to work," "to culture," "to health," "to mod30. "Les origines," 179. 31. "Abrege du droit nature! classique," Archives de philosophie du droit 6 (1961): 27-72 at 65. It was in this paper that Villey suggested the slogan "Zuriick zum Aristoteles." Ibid., 27.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

21

esty" (invokea ·against "obscene" films).32 But Villey is not content to criti­ cize abuses. Rather, he presents the whole modern attempt to base a system of jurisprudence on an affirmation of individual rights as funda­ mentally misguided. He describes this modern enterprise as Utopian, arbitrary and sterile. It is Utopian because the supposed absolute rights are fictions; they usually do not exist in actual law or in real life. Rights theo­ ries are arbitrary because the rights claimed are ultimately based on subjective whim; they lead on to a debased understanding of justice as "nothing but a label you attach to your own subjective preferences." And modern rights theories are sterile because they cannot form the basis of a coherent jurisprudence. 33 The rights that people assert conflict with one another. Juridical thought begins at the point where one considers the situations that arise as a consequence of this reality.The task of the jurist is to establish just relationships among persons and between persons and property-not to affirm absolute rights, but to determine what is objec­ tively right. Villey does not disdain the values inherent in modern West­ ern society insofar as they reflect a concern for the human personality, but he thinks those values could be better defended, "in another, more exact language," by an appeal to the classical tradition of natural right. 34 He associates that tradition especially with Aristotle, with the jurispru­ dence of classical lawyers who took for granted Aristotelian ways of think­ ing, and with the philosophy of Thomas Aquinas who remained faithful to Aristotelian principles.We need to explore a little further Villey's un­ derstanding of this tradition before we can consider his attitude to Ock­ ham and later rights theorists. A key-word for Villey is Aristotle's dikaion-the just-usually ren­ dered into Latin as ius. Aristotle understood the term in two senses, neither of them equivalent to the modern idea of a subjective right. He dis­ tinguished between justice as a moral virtue and justice as an objectively right state of affairs in a particular context, something inherent in the nature of a situation, or "in the nature of the case," we might say.It is this second meaning that especially concerns the jurist. Indeed, by defining it, Aristotle provided the foundation for a whole philosophy of law, ac­ cording to Villey.35 In Aristotle's philosophy the universe was a cosmos, 32. Ibid., 65. It is as well perhaps that Villey never came upon the work of Nan Berger, Rights: A Handbook for People Under Age (Harmondsworth, 1974). There he could have found, to add to his list of unlikely rights, a "right to sunshine," "to a tobacco-free job," and "to a sex break." 33. Ibid., 42-43, 46-47, 68-69. 34. Ibid., 66. 35. See, e.g. "Bentham et le droit naturel classique," Archives de philosophie du droit 17 (1972): 423-31 at 431. After explaining Aristotle's distinction, Villey commented, "Voila qui est pour nous le fondement d'une philosophie de droit." Villey's understanding of classical

22

THE IDEA OF NATURAL RIGHTS

informed by a logos which gave it order and harmony and purpose. So too human society could display a proper harmony and balance, a structure of right relationships. The objective sense of ius was well expressed in En­ glish by John Finnis-he defined it as "what's fair."36 For Villey ius most often means fair sharing, juste partage. Villey insists-against both Hume and Kant in their different ways­ that ius, what is right, can be ascertained from observation of external nature. 37 He cites, for instance, an argument from Aristotle and Thomas Aquinas. We can learn from observation that human children, unlike the young of many other species, need a long period of nurture and educa­ tion; whence one can conclude that stable marriage between parents is a naturally right relationship.38 Given this approach, Villey points out, it is not surprising that, when Aristotle or Aquinas sought to define dikaion or ius, they did not proclaim the rights and powers of individuals. They were concerned rather with a harmonious structure of relationships, right pro­ portion, juste partage. AQUINAS AND THE CANONISTS:

Ius AND LEX

So far we have been concerned mainly with a distinction between ius as a subjective right and ius as a system of objectively right relation­ ships. In discussing Aristotle and Aquinas in La formation, Villey devel­ oped another distinction, which became of central importance in his subsequent work. This was a distinction between ius understood as an ob­ jectively right relationship ("What's fair," juste partage), and ius understood as moral or legal precept, as law binding on individuals, and so equivalent to lex.39 natural right explained in the paragraph above is found in many of his works, including "Les origines" and "Abrege." It was given a systematic presentation in La formation, 36-47, in Philosophie du droit, l, and most recently in Le droit et Tes droits . 36. John Finnis, Natural Law and Natural Rights (Oxford, 1980), 206. 37. The influence of Kant was especially emphasized (and deplored) in "Abrege." For a typical comment on Hurne see "Bentham et le droit nature! classique," 429. In criticizing Villey, Finnis referred to Hume's law about the impossibility of deriving a moral proposition from factual observation which had, he wrote, "impressed . . . the whole modern anglo­ saxon world." In response Villey referred to " . . . la loi de Hume, si contestable et contestee, a tout le rnoins sur le continent." 38. La formation, 126-128. 39. Ibid., 127: " . . . la Joi morale n'est pas le droit." Among later studies see especially "Torah-Dikaion I" and "Dikaion-Torah II" in Critique de la pcnsee juridique moderne, 19-50. The argument is summarized in Philosphie du droit, 1, 10 1-112. Finnis complained that "Villey's treatment of ius is marred by an exaggerated distinction between ius and lex . . . which leads him to misplaced distinctions between law and morality. . . . " Natural Law and Natural Rights, 228.

VILLEY, 0CKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

23

Accordilig"'to Villey, the first, properly classical �eaning was lost, or compromised, in the writings of the Christian Church Fathers. In translat­ ing and commenting on the Bible they used the term ius to mean divine commands, so that, for instance, the Decalogue could be called ius divinum or ius naturale. Then this usage was continued by the medieval canonists. Hence, in the first words of Gratian's Decretum (c. 1140), we find ius natu­ rale defined as the Biblical Golden Rule, "by which we are commanded to do unto others what we would have them do unto us. . . . " This develop­ ment is important for our general theme concerning the origin of rights theories because, in Villey's view, the classical idea of ius was undermined by this Christian understanding of the term before the final (disastrous) misinterpretation occurred in the fourteenth century, when ius came to be regarded as an individual power or subjective right. Villey argued that Aquinas avoided both errors-the interpretation of ius as either subjective right or prescriptive law. He thought that one of the great achievements of the Dominican master was to restore for a time the objective, classical meaning of ius (a meaning that would be lost again by Ockham and the nominalists). Following the Roman lawyers, Aquinas de­ fined ius as quad iustum est, what is just, and again as ipsam rem iustam, the just thing itself.4° For Aquinas, as for Aristotle, as for Gaius and Ulpian, ius was still primarily a "thing" (rem), something existing in external nature. After his primary definition Thomas gave several derivative meanings of ius but they still did not include any subjective definition of the word. Ac­ cording to Villey no such meaning was known to him.41 Here Villey seems to have somewhat overstated his case. When Aquinas was writing unre­ flectively and following the common practice of his age, he did use the word ius in a subjective sense in phrases like ius dominii (2.2ae.62.1), ius possidendi (2.2ae.66.5), ius praelationis (2.2ae.69.1). Yet it remains true that he developed no explicit doctrine of subjective rights or natural rights. For Thomas, Villey argued, ius naturale was not a power inhering in individu­ als or a body of moral precepts but a method, a way of interpreting reality, even an "experimental method."42 (Perhaps Villey had in mind the sec­ ondary definition of ius given by Thomas, "The art by which it is known what is just.") This led Villey to a further point. What is naturally right can change. Thomas clearly insisted on a need for changes in positive human law, and Villey duly emphasizes this. But he goes further. He holds also that, for Thomas, ius naturale too could change because human beings change40. "Abrege," 31, referring to Summa theologiae, 2.2ae.57.l. 41. H. M. Hering argued that Aquinas did have a concept of subjective rights, "De iure subjectivo sumpto apud sanctum Thomam," Angelicum 16 (1939): 295-97. Villey denied this in "La genese," 111 n.l. 42. "Abrege," 50; La formation, 50, 126. "Le droit nature! est une methode experimentale."

24

THE IDEA OF NATURAL RIGHTS

"natura hominis mutabilis est," Thomas wrote in the Summa theologiae. Villey observes that justice is a problem which always poses itself in new terms and calls for new solutions as circumstances change. What is natu­ rally right-a fair pattern of relationships-will be different in different times and places, not the same, let us say, in a primitive agrarian society as in an advanced commercial one. Villey admires especially the supple­ ness and flexibility of Thomas's ius naturale. It is a vision open to change, open to progress. 43 Villey was supplying a corrective to modern neo-Thomist doctrines which interpret Aquinas's ius naturale too rigidly, and so far his argument may seem persuasive even if it is sometimes expressed incautiously. But the emphasis on a mutable ius naturale led to a thicket of difficulties when Villey turned to the other meaning of ius that he discussed, the canonistic understanding of ius as moral precept or divine command. The problem here is that Thomas (following St. Paul) certainly believed in an immutable lex naturalis, an unchanging moral law inscribed in the hearts and minds of men. Villey had to insist therefore that, for Thomas, the meanings of ius and lex were quite different.44 And here the problems begin. Thomas did indeed distinguish between the two terms in his definition of ius at Summa theol. 2.2ae.57.l. But he followed this at once in the next article with a sen­ tence in which the terms seem equated with one another, and elsewhere in the Summa he used them interchangeably. Villey insists, in effect, that only the first definition counts. He adds that, where there is an appearance of confusion, it is because Thomas is not using his own language to express his own thought but quoting the language of the canonists, specifically the terminology of Isidore of Seville incorporated in Gratian's Decretum, a ter­ minology that reflected a "decadent syncretism between Biblical culture and the language of the Roman jurists." Of course there is no trace of such an attitude in Thomas himself. He treated Isidore's texts, like other pas­ sages of canon law, as respected authorities. (At one point, in response to an objection, he wrote simply, "The authority of Isidore suffices.") 45 More43. "Abrege," n 35, "La justice, c'est un probleme qui se pose sous des termes nou­ veaux . . . " 50-51, "[La] vision du juste est relative, ouverte au progres . . . . " Similarly La formation, 129-131. 44. For further discussion see "Bible et philosophie greco-romaine de Saint Thomas au droit moderne," Archives de philosophic du droit 18 (1973): 27-57 and, most recently, G. Kali­ nowski and M. Villey, "La mobilite du droit nature! chez Aristote et Thomas d' Aquin," Archives de philosophic du droit 29 (1984): 187-199. Villey might have made a better argument by emphasizing that, for Thomas, lex natura/is as well as ius naturale was a flexible con­ cept that had to be applied differently in different circumstances. See Summa theol., l.2ae.95.2, " .. .principia communia legis naturae non eodem modo applicari possunt omnibus, propter multam varietatem rerum humanarum." 45. For Villey on "decadent syncretism" see "Bentham et le droit nature! classique," 429. Cf. Summa theol., 1.94.4, "In contrarium anctoritas Isidori sufficiat."

VILLEY, 0CKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

25

over, on on��ccasion where Thomas equated ius and lex, it was Aristotle not Isidore who provided the starting point of the discussion.46 It seems, then, that Villey's case for a consistent distinction between droit nature[ and loi naturelle in Thomas cannot be sustained. In different contexts, Thomas presented Aristotle's doctrine of natural right and his own doctrine of natural law, sometimes using the word ius to express both teachings. If he had consistently used ius naturale for the first doctrine and lex naturalis for the second the task of modern commentators might have been easier. But in fact Thomas followed the common usage of his age in which ius and lex could sometimes be used interchangeably and some­ times differentiated from one another in their more specialized meanings. One has only to consult a concordance to see that Thomas used the word ius (not to mention naturalis) in several different senses without always ex­ plaining carefully the various meanings intended in different contexts.47 We might expect to find this situation in such a long and far-ranging work as the Summa theologiae, which drew on sources as diverse as Aris­ totle's Ethics and Gratian's Decretum. But Villey's treatment of the relation­ ship between Aquinas and the canonists in their understanding of ius and lex is significant for his whole argument. Especially in his more recent work he has emphasized a conflict-a duel he says-between the classical and Thomist concept of ius (equivalent to Aristotle's dikaion in its objective sense) and the Judeo-Christian concept of ius (equivalent to lex or Torah). In fact, however, the two concepts have coexisted in a reasonably harmo­ nious fashion since classical times. In Roman law ius meant not only ob­ jective right order but also a body of legal or moral precepts, as in ius civile and ius gentium. Similarly the canonists emphasized the meaning of ius as moral precept, equivalent to lex, but they did not lack the meaning of ob­ jective right order. (To anyone familiar with their work, the idea that the canonists were not interested in right order in the world will seem star­ tling.) Villey complains that, in the treatise on law that forms the opening section of Gratian's Decretum, there is no understanding of justice in the objective sense-as just distribution, juste partage, ius suum cuique tribuere. But this precise meaning is presented in the first paragraph of the Ordinary Gloss to the Decretals, a work studied in every canon law school of me­ dieval Europe. "[H]aving read and understood (these decretals) we may 46. Summa theol., 1 .95.2. Thomas argued that human law was derived from natural law and then posed as an objection that natural law was invariable: "Praeterea lex naturae est eadem apud omnes; dicit enim Philosophus quod 'naturale ius est quod ubique habet eamdem potentiam"' (emphasis added).The objection has no point unless Thomas was as­ suming that Aristotle's ius meant the same as his own lex. (He did not distinguish between the two words in his reply to the objection.) 47. See R. Busa, ed., Index Thomisticus. Sectio II. Concordantia priora, 23 vols. (Stuttgart, 1974-75), 12: 594-98.

26

THE IDEA OF NATURAL RIGHTS

know how to discern between equity and iniquity, and to render to each his own, and in this justice consists."48 A less selective reading of the texts would show that the two meanings of ius that Villey contrasts-treating one as truly classical, the other as a sort of Christian aberration-actually existed harmoniously, side by side, in classical philosophy, in Roman law, in medieval jurisprudence, in Thomas Aquinas, and in many later natural law philosophers. Moreover, they could coexist in this fashion without undue strain because the two meanings are complementary rather than contradictory. If we observe that it is proper for children to respect their parents, that is an example of an ob­ jectively right relationship (dikaion, ius). If we say, "Honor thy father and thy mother," that is a precept of natural law (which Gratian would also call ius). But we are affirming the same principle in each formulation. Both meanings of ius retain the underlying sense of rightness or fairness. A judge cannot establish ius (an objectively right relationship, a juste partage) unless he has a ius (a law or moral precept) to guide his sense of what is considered fair in such a case. We shall have to consider later on how these two meanings of ius relate to the third one, of particular interest to us, ius considered as subjective right. Aquinas's use of canon law also raises another problem of central im­ portance for Villey's argument, the relation between philosophical and legal thought. Villey maintained that the development of Thomas's philos­ ophy of law was a prerequisite for the justification of new legislative activity in the church. 49 Thomas envisaged a law open to change and adap­ tation; but Gratian's Decretum, Villey says, did not acknowledge a creative legislative function of the ruler. After the philosophical work of Aquinas, however, papal decretals would no longer present themselves merely as judicial decisions or interpretations of a pre-existing law considered per­ manently valid, but as deliberately creative of new law. Villey points out that Boniface VIII made this assertion in his Preface to the Liber Sextus, pro­ mulgated in 1298, a quarter century after the death of Aquinas. But the phrase Boniface actually used to justify new legislation was "humane nature, novas semper deproperans edere formas, lites quoti­ die invenire conatur. . . . " Villey has overlooked the fact that Honorius III closely paraphrased the same text-it is originally from the Code of Just�nian-in the letter introducing his decretal collection of 1226,50 and 48. Villey, Critique, 33. Bernardus Parmensis, Glossa ordinaria ad Oecretales, Proemium in Decretales D.Gregorii Papae IX (Lyons, 1624), 2. 49. La formation, 121, "II fallait qu'une theologie et une philosophie nouvelles justifi­

assent le changement de droit." See also ibid., 133, 174 and "Saint Thomas clans l'histoire des sources," in Etudes d'histoire du droit canonique dediees a Gabriel le Bras, 2 vols. (Paris, 1965) 1 :355-395. 50. E. Friedberg, Quinque compilationes antiquae (Leipzig, 1882), 152. On the canonistic use of this language see G. Post, Studies in Medieval Legal Thought (Princeton, 1964), 534.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

27

that it was ··rncorporated in Jacobus de Albenga's commentary on this collection written shortly afterward and also in the Ordinary Gloss to the Decretals of Gregory IX (also before Thomas). The canonists did not need to wait for Thomas to tell them that popes could legislate. For more than a century they had been insisting on the papal ius condendi canones. What actually happened is more subtle and more interesting. Thomas did not invent a new theory of legislation. He assimilated the existing doctrine of contemporary Roman and canon lawyers, and associated it with his own teachings on ius naturale and lex naturalis. Then, in turn, Thomas's doctrine of natural law began to react back on the teachings of the academic canon­ ists. (The first time I have found it mentioned in a formal canonistic com­ mentary is in the Rosarium of Guido de Baisio from ca. 1300.) The process we have to deal with is not simply one of philosophy influencing law but rather of a constant interplay between the two disciplines. It will be useful to keep this in mind as we turn to Ockham. 0CKHAM'S "REVOLUTION"

After mentioning William of Ockham in several of his earlier papers, Villey gave a detailed systematic presentation of his argument that Ock­ ham was the inaugurator of modern rights theories in an article first published in 1964. 51 He began by referring again to the abuses of modern rights theories. Then Villey gave two reasons for the rise of such doctrines. The first was simple egotism, the inclination of each person to think of everything in terms of his own self-interest. But since this moral defect is a common human failing it does not in itself explain why the "deviation of · language" introduced by theories of individual rights has found wide ac­ ceptance among philosophers of law only since the early modern period. Another influence was needed. And so here again Villey emphasized the impact of Christianity-not Christian morality as such but a deformed version of Christian ideas (idees chretiennes mais deformees). 52 Christianity always recognized the supreme value of the individual soul and, in the cloister, individual mysticism was cultivated as the highest form of life. The mischief arose when these religious attitudes were transplanted to the alien terrain of law: The Franciscan Order was the group that brought about this change and, among the Franciscans, William of Ockham was especially responsible for it. "The cradle of subjective right was the Fran51. "La genese." This article is based on material originally included in Villey's Cours d'histoire de la philosophie du droit of 1963. (See Seize essais, 141.) The Cours was subsequently published in 1968 as La formation de la pensee juridique moderne. Cours d'histoire de la philosophie du droit, 1961-1966. Our page references are to the revised edition of this work published in 1975 (cited above n. 2). (I have quoted La formation in the following discussion when it con­ tains significant phrases not included in "La genese.") 52. "La genese," n 97.

28

THE IDEA OF NATURAL RIGHTS

ciscan Order-William of Ockham, founder of nominalism, an individual­ ist philosophy . . . enemy of the pope and convicted of heresy according to many, may be called the father of subjective rights."53 Before turning to Ockham, Villey develops in this paper some of his earlier ideas in order to contrast the newly emerging idea of subjective right with the older, sounder doctrine. A subjective right, he says, is some­ thing that subiacet, that underlies or is inherent in a person. It is a quality of the subject, a faculty, a liberty, an ability to act. In a word, "subjective right is a power of the individual."54 This concept he reminds us, was alien to the thought of Aristotle or Ulpian or Aquinas. For them (in Villey's interpreta­ tion) dikaion or ius meant primarily something objective-what is just. It could not mean a subjective power. Rather, right was something that lim­ ited power. 55 Hence the modern concept has combined two ideas that were formerly distinct-right and power. It is precisely in the juncture of these two concepts-ius and potestas-that Villey will find Ockham most in­ novative; for, he asserts, the doctrine of classical natural right necessarily excluded the modern idea of subjective rights. "The notion of subjective right is logically incompatible with classical natural right." 56 Villey acknowledges that, in vulgar usage, even in ancient Rome, some people may have treated the word ius as a term defining their in­ dividual rights-after all they had their share of egotism too. But the glis­ sement, the shift in meaning, became much more evident in the practical life of the Middle Ages. After the downfall of Rome no work of creative jurisprudence was produced for several centuries. The Roman juridical order was forgotten. An antijuridical attitude (conception antijuridique) prevailed. In this juridical void people everywhere began to insist on their "rights"-rights of emperors against popes, rights of kings against sub­ jects, rights of this or that group or class of individuals-and they tended to confuse rights with actual powers. 57 Here again, as in the paper of 1947 discussed above, Villey seems to be proposing an early medieval origin for theories of subjective rights. But his central argument is quite different. He insists that the shift in meaning of the word ius was confined to vulgar usage. We cannot define with cer­ tainty what ius meant to people who themselves were not using the word 53. Ibid., 98. 54,. Ibid., 100-102. 55. Ibid., 104, . . . le pouvoir est au contraire ce que le droit limite . . . " 56. La formation, 227, " . . . la notion de droit subjectif est logiquement incompatible avec le droit naturel classique." Similarly, "La genese," 103, " . . . cette philosophie dite du droit naturel classique . . . ait ete necessairement exclusive du droit subjectif." On "droit" and "pouvoir," ibid., 104. 57. "La genese," 110. At this point Villey dismisses the labors of the generations of me­ dieval people who first built a Christian civilization in Western Europe as "le deploiement desordonnee de l' initiative individuelle."

VILLEY, 0CKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

29

with any pli.i1osophic precision, and so there is no basis for holding that the term had acquired the full meaning of subjective right before the fourteenth century. The important point for Villey is that we do not find the subjective meaning in formal academic discourse. The glossators of Roman law and Thomas Aquinas drew up lists of definitions of the word ius but they did not include the meaning of "power" or any subjec­ tive sense of the word. 58 For this meaning to be defined and integrated into a system of jurisprudence a new philosophy was needed. William of Ockham would provide it. 59 In approaching Ockham's thought, Villey first sketches in the dispute over Franciscan poverty that led to Ockham's polemical writings from the 1320s onward. (His work in formal logic and philosophy had been accom­ plished earlier during his years at Oxford.) The Franciscans had come to teach that, in observing perfect poverty, Christ and the apostles had re­ nounced all property and all right of use in exterior things. But Pope John XXII denounced this whole position in 1323. He declared that henceforth it would be heresy to hold that Christ and the apostles had no right of use in the things they actually did use. Ockham's response to this was, for Villey, "the decisive moment in the history of subjective right." 60 Ockham was not a jurist by training, but he was obliged by the nature of the con­ troversy to give definitions of legal terms like dominium, ususfructus, ius utendi. The distinctive quality of Ockham's definitions, Villey suggests, is that in them "the concept of right is resolutely twisted to the meaning of power." 61 For Ockham ius meant potestas. More specifically, a right for him was a "licit power"-"ius utendi est potestas licita utendi re extrin­ seca." Villey sees these definitions as striking innovations. Ockham, he says, was the first to conceive of subjective right, the first to sanction the conjunction of right and power. His language might perhaps have been suggested in part by some earlier glossator; but, precisely because he was not technically trained as a jurist, Ockham could, in good faith, carry over the meaning that ius was acquiring in vulgar discourse into his formal definitions. But above all, in Villey's view, Ockham's definitions were derived from his nominalist philosophy, and it was this philosophy that was most important for future rights theories.62 For Ockham only the 58. Ibid., 107, 111. Actually Azo did give potestas as one meaning of ius but only in rela­ tion to the phrase sui iuris esse ("Origines," 271). 59. La formation, 239. Pour . . . q'il soit defini, integre dans un systeme de pensee ju­ ridique moderne, il ne faut pas moins que le concours d'une philosophie . . . je pense que c'est de Guillaume d'Occam que date le tournant decisif." 60. "La genese;'' 113. 61. Ibid., 117, "Elles offrent cette particularite . . . simplement que la notion de droit s'y trouve resolument virer au sens de pouvoir." 62. Ibid., 118-120.

30

THE IDEA OF NATURAL RIGHTS

individual had real existence; hence there could be no juridical order that did not proceed from the individual will, and no conception of a supra­ individual social order. 63 Villey concludes with a discussion of Ockham's Breviloqium. 64 He pre­ sents it as a treatise on pure power which leaves no room for any con­ ception of objective right. At the summit is the absolute power of God. In turn God confers powers on men, primarily a power of appropriating ex­ ternal goods (after the Fall) and a power of instituting rulers. The ruler then has the power of legislation ( potestas condendi leges). From human laws come dominium, usufruct, right of use-subjective rights guaranteed by state authority. The rights are all absolute. They can be exercised or renounced at will. And there is nothing else. The subjective rights of indi­ viduals have filled the void left by the loss of objective natural right. 65 So the argument reaches its conclusion. Ockham has achieved his "se­ mantic revolution." "It is the whole philosophy professed by Ockham . . . that is the mother of subjective right." 66 OBJECTIONS TO VILLEY

As I have suggested in presenting the earlier stages of Villey's argument, each phase of it is open to objections on points of detail. Simi­ larly, his presentation of Ockham's views might be criticized as unbal­ anced. (Ockham's emphasis on individual liberties in the Breviloqium was matched by an equal concern for the common good in other contexts.) Yet Villey always has a sound and sensible point to make, even when he seems tempted to press the point to the edge of paradox. (Some early modern ju­ rists did exaggerate the importance of individual rights in Roman law; Aquinas did have a flexible doctrine of ius naturale; the Franciscan disputes did focus attention on the problem of natural rights; some modern lists of supposed "human rights" are indeed protracted to the point of absurdity.) A more serious objection to his thesis concerns the whole conceptual framework within which it is set. Villey has devised a sort of Manicheean universe. There is an Aristotelian thought-world, full of light and sweet reason, and an Ockhamist thought-world, where all is darkness and blind will. The good theory of objective right can flourish only in the first thought-world, the bad theory of subjective rights only in the second. When clear-cut affirmations of individual rights are found in texts before 63. Ibid., 121. 64. Ibid., 123-26. 65. Ibid., 126, "Et il n'y a rien d'autre . . . . Les droits subjectifs des indivus ont comble le vide resultant de la perte du droit naturel." 66. La formation, 261, 253.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

31

Ockham they·have to be dismissed as exceptions or aberrations or mere misunderstandings of vulgar persons who were too ignorant to attach pre­ cise meanings to the terms they used in day-to-day discourse. There are two main lines of objection to this whole thesis (apart from the historical objection to be discussed below that rights theories did indeed exist before Ockham). In the first place it is not clear that theories of individual rights depend on Ockhamist philosophical premises-even in the work of Ockham himself. In the second place it is not clear that the ideas Villey contrasts with one another-classical objective right, Judeo­ Christian natural moral law, and modern subjective rights-are in fact inherently inconsistent with one another. As to the first line of objection: The metaphysical "moderate realism" of Aristotle and Aquinas affirmed the primary existence of individual enti­ ties in the external world, in opposition to the Platonic theory of ideal forms. There is no reason why such a metaphysics should be incongruous with an emphasis on individual rights. 67 Similarly, Ockham's more radical criticism of a realist theory of universals did not exclude a concern with right relationships between persons and between persons and things.68 Ockham's polemical works were indeed concerned precisely with such relationships (between empire and papacy, between rulers and subjects, between persons and property). Villey simply assumes a dependence of Ockham's legal and politi­ cal thought on his metaphysical doctrines. "Avec une coherence par­ faite, Occam-juriste suit la voie d'Occam-philosophe." This relationship has indeed often been affirmed, especially, before Villey, by Georges de Lagarde; but it has also often been contested.69 Charles Zuckerman has argued that all modern attempts to relate medieval political theories to metaphysical doctrines involve logical errors. 70 Even if this seems too in­ transigent, Zuckerman certainly shows that, as a matter of historical fact, 67. The point was made long ago by M. de Wulf, "L'Individu et le groupe clans la sco­ lastique du XIlle siecle," Revue neo-Scolastique de philosophie 22 (1920): 341-357 at 348, and P. Gillet, La personnalite juridique en droit ecclesiastique (Malines, 1927). De Wulf especially em­ phasized the primacy of the individual person in Aquinas. 68. On Ockham's theory of relations see e.g., G. Martin, "1st Ockhams Relationstheorie Nominalismus?" Franziskanische Studien 32 (1950): 31-49 at 49: "Ockham steht hier in einem unaufloslichen Zusammenhang mit Aristoteles, Thomas und Duns Scotus." 69. La formation, 224. Some of the criticisms directed against de Lagarde's work (above n. 5) would apply also to Villey's interpretation. See e.g. J. B. Morrall, "Some Notes on a Recent Interpretation of William of Ockham's Political Philosophy," Franciscan Studies 9 . (1949): 335-69; W. Kolmel, Wilhelm Ockham und sein kirchenpolitischen Schriften (Essen, 1942) and "Das Naturrecht bei Wilhelm Ockham," Franziskanische Studien 35 (1953): 39-85. 70. C. Zuckerman, "The Relationship of Theories of Universals to Theories of Church Government in the Middle Ages: A Critique of Previous Views," Journal of the History of Ideas 35 (1973): 579-594.

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THE IDEA OF NATURAL RIGHTS

there is no correlation between the two spheres of thought in the positions of many medieval thinkers. We can find Thomists and realists and nomi­ nalists at every point on the political spectrum. (For instance, Wyclif and Hus, like Ockham, upheld the rights of Christian subjects against the pope; but they were metaphysical realists in philosophy.) There is indeed no incongruity between Ockham's philosophy and his political theory, but there is no necessary connection between them either. By the time Villey wrote on Ockham in the 1960s a substantial litera­ ture had grown up (which Villey simply ignores) asserting that Ockham was not radically destructive in his philosophy nor radically innovative in his political theory and, further, that there was no close connection between these two spheres of his activity. John Morrall called Ockham "an interpreter and defender of the achievements of the past." Philotheus Boehner, after a lifetime's study of Ockham's work, maintained that "Ockham's political ideas . . . could have been developed, so far as we can see, from any of the classical metaphysics of the 13th century." 71 Villey has emphasized that it was not only Ockham's own rights-theories that were important for the future but his whole nominalist philosophy. And yet the great Spanish scholastics of the sixteenth century, the Jesuits and Do­ minicans who provided the essential link between medieval rights the­ ories and modern ones, were not Ockhamists. Most of them considered themselves to be Thomists (though Villey, of course, sees them as at best erring disciples). In fact, rights theories have been upheld by writers of various persua­ sions, including many who defended also doctrines of objective natural right and natural law. This leads on to our second major line of objection to Villey's thesis. The various senses of ius that he discusses are not con­ tradictory concepts. Rather they are correlative. In considering Aquinas and the canonists we suggested that the concepts of ius as objective right order and as moral or legal precept are not intrinsically incompatible with one another. Now we can add that both concepts are compatible with the 71. J. B. Morrall, "Some Notes," 369; P. Boehner, "Ockham's Political Ideas" in Collected Articles on Ockham, ed. E. M. Buytaert (St. Bonaventure, N.Y., 1958), 442-468 at 446. A bibli­

ography of the "revisionist" work on Ockham and a sympathetic discussion of it is provided by H. Junghans, Ockham im Lichte der neuren Forsc/rnng (Berlin, 1968). See also J. Miethke, Ockhams Weg zur Sozialphilosophie (Berlin, 1969) and H. A. Oberman, The Harvest of Late Medieval Theology: Gabriel Biel and Late Medieval No111inalism (Cambridge, Mass., 1963). On Ockham as a "constructive" political thinker see A. S. McGrade, The Political Thought of William of Ockham: Personal and Institutional Principles (Cambridge, 1974). For changing views on the cultural significance of nominalism see William J. Courtenay, "Nominalism and Late Medieval Religion" in The Pursuit of Holiness, eds. C. Trinkhaus and Heiko A. Oberman (Leiden, 1974), 26-59. An overview of contemporary views on Ockham is presented in the papers of the Ockham Centennial Congress held at St. Bonaventure's University, and pub­ lished in Franciscan Studies 44-46 (1984-86).

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

33

idea of indivtdual rights. (We can define the relati�nship of parents and children in terms of an objectively right order. Or we can define it in terms of moral precept-"Honor thy father and thy mother." But we could also define the same relationship by saying that parents have a right to the re­ spect of their children.) As for individual rights and ius naturale considered as meaning what is objectively right: to affirm a right ordering of human relationships is to imply a structure of rights and duties. In propounding a system of jurisprudence one can emphasize either the objective pattern of relation­ ships or the implied rights and duties of persons to one another-and then again one can focus on either the rights or the duties. The emphasis can fall in different ways depending on social and economic and political circum­ stances and on the temperament of a particular author. (It will probably have little to do with his abstract metaphysics.) The resulting works may be very different in tone and spirit, but the different emphases do not nec­ essarily imply logical contradictions. Despite the assertion of Villey (and similar assertions by some disciples of Leo Strauss in America), it is just not true that "the notion of subjective right is logically incompatible with classical natural right." It is the same with ius understood as a body of moral or legal precepts. Villey noted that some modern jurists regard rights as merely the advan­ tages to individuals implied by general laws, and he added that this could not explain the existence of natural rights. 72 He saw a connection only in that the natural law theories he associated with Ockham and the Fran­ ciscans allowed for "permissive laws" as well as precepts or prohibitions, and he held that rights theories grew up in this area of permissive­ ness. 73 The idea of permissive natural law is indeed important and we shall need to return to it in later discussions; but the precepts and pro­ hibitions of natural law could also readily be seen as implying rights. To say that "Thou shalt not steal" is a command of natural law is to imply that others have a right to acquire property, a point that medieval jurists clearly grasped. 74 In fact one finds natural rights regarded as correlative 72. "La genese," 99. 73. Le droit et les droits, 123. "En outre, il n'est pas que des lois preceptives . . . ou interdic­ tives . . . mais aussi des lois permissives . . .Ainsi nai:t le droit subjectif.. . . " 74. For some examples of this in canonistic thought see R. Weigand, Die Naturrechtslehre

der Legisten und Dekretisten van Irnerius bis Accursius und van Gratian bis Johannes Teutonicus

(Munich, 1967), 357-59. The opposite view, that natural law and natural rights are contradic­ tory concepts, is often found in current American literature. See e.g., Walter Berns, "The Con­ stitution as Bill of Rights" in How Does the Constitution Secure Rights?, eds. R. A. Goldwin and W. A. Schambra (Washington, 1985), 50-73 at 55. ". . .natural rights and traditional natural law are, to put it simply yet altogether accurately, incompatible. . . . " Such views seem based on a mistaken idea that modern rights theories are derived entirely from Hobbes and on simple ignorance of the history of the concept of ius naturale before the seventeenth century.

34

THE IDEA OF NATURAL RIGHTS

with natural law at every stage in the history of the doctrine-in the twelfth-century renaissance of law, in the eighteenth-century Enlighten­ ment, and still in twentieth-century discourse. A modern thinker like Jacques Maritain, steeped in the Thomistic tradition of natural law, has de­ fended natural rights as consistent with that tradition. 75 More recently, John Finnis, arguing in the language of contemporary analytic jurispru­ dence, has also treated the concept of rights as a "valuable addition . . . to the tradition of 'natural law doctrine."' 76 ALTERNATIVE APPROACHES

Once we realize that the assertion of a rights doctrine is not neces­ sarily dependent on a prior acceptance of a nominalist philosophy and that claims for individual rights have commonly existed in a symbiotic re­ lationship, one might say, with theories of objective natural right and natural moral law rather than in opposition to them, then the whole prob­ lem of the origin of Western rights theories can be approached in ways different from Villey's. In suggesting some alternative approaches I am not concerned primarily to contest Villey's understanding of Aristotelian natural right as an ideal to which modern civilization should return-that is another whole question-but rather to argue that his commitment to a particular philosophical stance has led him to present a distorted version of the course of medieval intellectual history. We can agree that the con­ cept of individual rights was not prominent (to say the least) in classi­ cal law and that Ockham was an important transmitter of rights theories to the modern world. But if we realize further that Ockham's own theory of rights was not a radical innovation based on a transposition of his novel philosophical concepts into juridical language (which seems an un­ warranted assumption) then an obvious approach to the origin of Western rights theories is to investigate the earlier medieval development of those doctrines, especially in the sources that contributed to Ockham's thought in this area. A natural starting point is the "renaissance" or "revolution" of the twelfth century, which saw so many new beginnings in Western life and thought. Villey himself, as we have seen, emphasized the concern for in­ dividual rights in the everyday, secular life of the age, and many recent writers have discussed the new personalist or humanist forms of religious 75. Les droits de l'homme et la loi nature/le (Paris, 1945). 76. Natural Law (above n. 26), 221. The traditional interdependence of natural law and natural rights theories was also emphasized by J. Dabin in a criticism of Villey. See "Droit subjectif et subjectivisme juridique," Archives de philosophie du droit 9 (1964): 17-35.

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devotion tha:fgrew up then. Villey appreciated the importance of Chris­ tianity for the growth of rights theories, and he saw too that Ockham's philosophy was not mere "cobweb of the brain" spun out of his own subjective consciousness but rather a reflection of the real-life circum­ stances of the Middle Ages. 77 Yet Villey still supposed that social and re­ ligious realities could shape a new system of jurisprudence only after they had passed through the filter of Ockham's nominalist thought. In fact though-as Harold Berman most recently and notably has pointed out­ already by the twelfth century the writings of the canonists were per­ meated by doctrines based on individual intention and individual will in areas like the law of torts, the law of contracts, the law of marriage. 78 It would seem not unreasonable to look for a concern with individual rights also in such a juristic culture. Moreover, the political writings of Ock­ ham himself are saturated with canonistic references. He could hardly avoid them. Before he ever became involved in the Franciscan poverty dispute, the issues had already been formulated in juridical terms by two formidable lawyers, Pope John XXII and his Franciscan adversary, Bona­ gratia of Bergamo. The earlier literature of the Franciscan controversies provides another rich body of source material, along with the writings of the canonists, for the investigation of medieval rights theories. Villey was correct to see the Franciscan Order as a "cradle" of rights doctrines even though he exagger­ ated the importance of Ockham as an innovator.79 If we go back to the early days of the Order, the whole Franciscan movement can be seen as a culmi­ nation in the religious sphere of the personalism or individualism that also influenced twelfth-century law. From the beginning, there was a special kind of individualism in Francis's attitude to the world around him; he did not love mankind in the abstract but particular men and women. 8° Francis laid down in his Rule that all the brothers were to obey their superiors, but then added "in everything that is not against their conscience. . . . " He at­ tracted an extraordinary group of vividly diverse personalities as his first followers. A little later, from the 1250s onward, the conflicts of mendicants and,seculars stimulated a more legalistic concern with individual rights in the writings of Franciscan masters. 77. La formation, 236, 266. 78. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983). 79. Villey also calls attention to the voluntarism of Scotus but still finds the decisive breakthrough in Ockham. (See, e.g., La formation, 179-189). Villey's treatment of Scotus would require another paper. But the remarks above about the pervasiveness of will and intention that one finds already in twelfth-century law are relevant here too. 80. As Chesterton wrote: "He did not call nature his mother: he called a particular donkey his brother, or a particular sparrow his sister."

36

THE IDEA OF NATURAL RIGHTS

Two streams of thought flowed together in Ockham' s polemical works. One had its source in canonistic writings, the other in the early lit­ erature of the Franciscan disputes. For the rest of this chapter I would like to suggest some ways in which the further investigation of these sources might advance our understanding of premodem rights theories. Among the canonists one often finds the term ius used in a subjective sense long before Ockham, and also the specific association of "right" and "power" that Villey emphasized as a major contribution of the Francis­ can to the theory of rights. Sometimes too, in offering formal definitions of natural right, ius naturale, the canonists gave a subjective sense to the term, understanding it to mean, not objective natural law but a subjective "fac­ ulty," "force," or "power" of the human personality. (These texts and other canonistic usages of ius in a subjective sense are discussed in detail in the following chapter.) An extensive technical literature has grown up around the doctrines of the twelfth-century canonists, but it is not addressed to our particular problem-the origin of rights theories and, specifically, the juristic under­ standing of the term ius before Ockham. 81 It is the same when we tum to Franciscan history. In this area too there is a huge body of modem writ­ ing on the early history of the Franciscan Order and especially on the Franciscan poverty disputes. 82 But most often it is only when we come to Ockham that historians of rights theories seem to regard the subject as relevant to their inquiries. In fact the mass of controversial Franciscan lit­ erature written before Ockham may be relevant too. If we had to choose one pre-eminent philosopher as the first who transplanted Franciscan religious concepts to the alien field of legal theory it might well be Bonaventure rather than Ockham (though no one has ac­ cused Bonaventure of being a nominalist). Writing in 1269, Bonaventure distinguished four forms of common ownership associated with four cate­ gories of rights-those derived from necessity of nature, from fraternal charity, from the civil law of the world, and from ecclesiastical endow­ ments. The first two could not be renounced; the second two had to be renounced by anyone seeking the highest form of evangelical perfection.83 Bonaventure (like Ockham) claimed for the Franciscans a right of use 81. On Ockham's use of canonistic sources see my "Ockham, the Conciliar Theory, and the Canonists," Journal of the History of Ideas 15 (1954): 40-70 and "Natural Law and Canon Law in Ockharn's Dialogus," in J. G. Rowe, ed., Aspects of Late Medieval Government and Soci­ ety. Essays Presented to ]. R. Lander (Toronto, 1986), 3-24. 82. M. D. Lambert, Franciscan Poverty (London, 1961) provides a convenient introduc­ tion. For a more detailed study of Ockham's involvement see M. Damiata, Guglielmo d'Ockham: Poverta e potere, 2 vols. (Florence, 1978-79). 83. Apologia pauperum in S. Bonaventurae . . . Opera omnia, 10 vols. (Quaracchi, 1882-1902) 8:233-330 at 309.

VILLEY, OCKHAM, AND THE ORIGIN OF INDIVIDUAL RIGHTS

37

separate frortf ownership, but not a right based on secular law. The friars had a right to material support by virtue of the law of mercy and by virtue of the law of justice, he wrote (but Bonaventure meant divine justice here). Villey has suggested that, in Roman law, ius utendi was essentially a legal attribute of the thing used; but such a position cannot be sustained in relation to Franciscan uses of the term in the century before Ockham. The friars and their adversaries were constantly concerned with the inner intention and inner disposition of the user. Bonaventure wrote: "They must claim their right with humility . . . that they may be humiliated in receiving" (and it was a natural right that he was discussing).84 We have seen that a dispute exists as to whether Thomas Aquinas had any idea of subjective right. But what of Bonaventure? Was his concept of ius more subjective than Thomas's? Any comprehensive study of medieval rights theories would need to consider the Franciscan arguments that preceded Ockham' s work. In such a study we should also need to discuss not only the writings of the Franciscans themselves but also those of their adversaries among the secular theologians-such writers as Henry of Ghent and Godfrey of Fontaines. 85 Here again there is an extensive terrain that needs to be ex­ plored before we can hope to make an adequate map of medieval rights theories. Besides denouncing the Franciscan doctrine of poverty, the secu­ lar masters also attacked the papal privileges that enabled the friars to preach throughout the church. Such privileges, they maintained, under­ mined the traditional status of bishops and priests in their dioceses and parishes. To a modem mind it is clear that the issue could have been stated in terms of the rights of subjects (bishops and priests) against their ruler (the pope). But could the mind of a medieval theologian (before Ockham) have conceived of the issue in those terms? Godfrey of Fontaines, writing in the 1280s, in fact did so. The question he posed was: "Whether a supe­ rior prelate can take away from his subjects what belongs to them by right. " Arguing for the superior, he pointed out that popes often did take away powers of their subordinates-e.g., a chapter 's power of electing or the right (ius) that an electee had acquired. On the other side he quoted a 84. Ibid., 329. Bonaventure wrote here that the friars were entitled to receive alms, not iure Jori but iure poli. (Ockham would later use the same distinction.) ". . . iure poli earn ex­ igere possunt et debent per modum humilitatis . . . ut ipsi humilientur recipiendo." On Bonaventure and his Franciscan contemporaries see especially Paolo Grossi, "Usus facti. La nozione di proprieta nella inaugurazione dell' eta nuova," Quaderni Fiorentini per la storia del pensiero giuridico moderno 1 (1972): 287-355. Grossi discussed here the Franciscan emphasis on the individual will as a source of subjective rights. 85. On this literature see especially Y. Congar, "Aspects ecclesiologiques de la querelle entre mendiants et seculiers dans la seconde moitie du XIIle siecle et le debut du XIVe," Archives d'histoire doctrinale et litteraire du moyen age 36 (1961): 35-151.

38

THE IDEA OF NATURAL RIGHTS

text of Gregory the Great, included in the Decretum, where the pope said that he wished to maintain the rights (iura) of all other churches. Godfrey concluded that the ruler could take away the rights of subordinates only in exceptional cases when such action was necessary for the common good. If he tried to act otherwise he could be resisted. . . . Good rulers, especially ecclesiastical ones . . . ought to rule as is fitting in the best polity, one in which the ruler does not intend his own good but the good of his subjects, who are not slaves but free men, having the power to oppose their ruler if he wishes to tyrannize over them. 86

Of course, we encounter a feudal right of resistance in innumerable me­ dieval documents. But here we have an academic philosopher, in formal philosophical discourse, using Aristotle's theory of government-which Villey regarded as incompatible with subjective rights-precisely in order to defend the rights of ecclesiastical subjects against papal tyranny. The same issue will recur in Ockham's work; but Godfrey was not a nominal­ ist or even a Franciscan. In discussing the problems of evangelical poverty also, the oppon­ ents of the Franciscans-just as much as the friars themselves-were led to consider questions concerning property rights. Sometimes questions arose in their writings on this theme about natural law and specifically about natural rights as in these lines, also from Godfrey of Fontaines: On account of this, that each one is bound by the law of nature to sustain his life, which cannot be done without exterior goods, therefore also by the law of nature (iure naturae) each has dominion and a certain right (ius) in the common exterior goods of this world which right also cannot be renounced. 87

Here the meaning of the word ius shifted from objective natural law to subjective natural right in the course of a single sentence. And, here again, the argument about an inalienable right to use what is needed to sustain life is one that recurred in Ockham. In considering the work of Ockham himself we shall need to discuss especially some of the fourteenth-century controversialists-both champions of the friars and their adversaries­ who wrote just before Ockham in the course of the conflict between John XXII and the Franciscans; but we should bear in mind that the thought and language of these writers had been shaped in part by the literature of the earlier disputes. 86. Les Quodlibets onze-quartorze de Godefroid de Fontaines, ed. J. Hoffmans, Les philosophes Beiges 5 (Louvain, 1932): 94 (Quodl. 12 q.3). 87. Philosophes Beiges 4 (1924): 105 (Quodl. 8. q.11), "Immo etiam propter hoc quod un­ usquisque tenetur iure naturae vitam suam sustentare, quod non contingit nisi de bonis exterioribus, ideo etiam iure naturae quilibet habet dominium et quoddam ius in bonis com­ munibus exterioribus huius mundi, cui etiam iuri renuntiare non potest licite."

VILLEY, OCKHAM, AND THE ORIGIN OF lNDIVIDUAL RIGHTS

39

The mostfull and interesting discussion of ius �s a subjective right in a Franciscan source before Ockham is found in a Quaestio of John Peter Olivi. Here again ius was identified with potestas. The question Olivi posed was whether the possession of a ius-he mentioned specifically the "right of royal power" and the "right of property" -added anything real to the person of the right-holder. 88 The whole argument turned on Olivi's acceptance of a doctrine common to earlier scholastic philosophers, in­ cluding Aquinas, the divine governance of the universe through rational natural law and divine positive law. There is a certain order so absolutely fixed . . . by reason of virtue and jus­ tice that God cannot and ought not to will the opposite . . . and this order is commonly called the order of natural right (ordo iuris naturalis). There is another order proceeding from the command of the divine will, such that God can will or will the opposite . . . as he pleases.89

Olivi did not regard subjective rights as somehow contrary to this over­ arching structure of natural law or natural right but as implicit in it. Rights of rulership and rights of property were a part of the divine scheme of things; that was why transgression of these rights by disobedience or theft was considered a mortal sin. 90 Such considerations favored the argument that acquiring a ius did add something real to the personality of the right­ holder. But there were arguments on the other side too. A person could sell his rights, which meant that the purchaser received the same rights the other had formerly held, and this could not be if the rights were something real, informing the person of the first right-holder. Again, a right could not be said to inhere in the body of a right-holder or any part of it, or in the in­ tellect, or in the will. And rights could be acquired or taken away without any real change in the subject (as a seal could lose its validity without any real change in the seal). 91 These are only a few points from a very complex scholastic discussion, but they give some idea of how much sophistication could be brought to bear on a consideration of rights concepts before the end of the thirteenth century. (Olivi eventually concluded that a right did 88. The text is edited .in F. Delorme, "Question de P. J. Olivi 'Quid ponat ius vel do­ minium' ou encore 'De signis voluntariis'," Antonianum 20 (1945): 309-330.Olivi regarded his question about rights as analogous to the questions whether a sacrament (e.g., baptism or ordination) conferred a real character on the recipient, and whether the attribution of mean­ ing added something real to a word or sign. 89. Ibid., 324, ' . . . est ordo sic absolute prefixus . . . ratione virtutis et iustitie, que est quod Deus non potest nee debet oppositum eius velle . . . et hie ordo communiter vocatur ordo iuris naturalis.Alius autem est ordo sic a dominativo imperio divine voluntatis pro­ cedens, quod Deus ipsum et eius oppositum . . . pro libitu potest velle." 90. Ibid., 317. 91. Ibid., 326.

40

THE IDEA OF NATURAL RIGHTS

add something to the person of the right-holder, but not of such a nature as to change his real essence.) Let us turn back to the canonists for one final text. Villey observed that the lists of definitions of the word ius given by the Roman lawyers and by Thomas Aquinas did not include the subjective meaning of the term as a power inhering in individuals. But around 1310, twenty years before Ockham wrote his first polemical works, the canonist Johannes Monachus made a more ample list, ending with a mnemonic verse to help his stu­ dents remember a score of different meanings. 92 Johannes set out from a decretal of Nicholas III, stating that, when an election required papal con­ firmation, the electee had to appear at Rome "cum omnibus actis, iuribus et munimentis suis" ("with all his acts, rights, and documents"). This re­ minded Johannes of another canonistic text, borrowed from Roman law, which affirmed that the pope had "omnia iura in scrinio pectoris sui" (" all laws in the shrine of his breast"). How could the electee bring his iura when the pope already had all iura? The word ius was obviously being used in different senses; and this consideration launched Johannes into a list of all the possible meanings he could think of. There is a note of heavy­ handed playfulness in some of his definitions. He began with the entirely non-legal meaning of ius as a rich liquid (aqua pinguis), a broth or juice, and proceeded with some word-play on mando as meaning either to eat or to command. (Then he solemnly explained the pun to his students, "Manda of the first conjugation, has two different meanings. . . . ") His mnemonic verse began, Ius is water, ius is right, ius is called a power, An art, a form, the rigor of law, a bond, a nature, a place . . .

and continued with many more explanations. Johannes' second definition shows a kind of overlapping of objective and subjective right. "!us means the right and just, as when we say so-and-so has or does not have a right (ius)."93 Another definition identified ius with dominium. The most impor­ tant discussion for us however was on the third definition, which treated ius as meaning potestas. "Tertio idem est quod potestas. . . . " Johannes first cited in support of this a text of Gratian which claimed for the Roman church a right of making laws (ius condendi canones).94 Johannes assumed that this evidently referred to a power (potestas) of making laws. Johannes next gave an example from the Roman law of tutors. One text of the Digest 92. Johannes Monachus, Glossa Aurea (Paris, 1535), fol. xcir, Gloss ad Sext. 1.6.16. 93. Ibid., "Secundo ius dicitur rectum seu iustum ut cum dicimus iste habet vel non habet ius." 94. Ibid., "Tertio idem est quod potestas, xxv q. prima § his ita . . . " (i.e. C.25 q.l dictum post c.16, where Gratian referred to the ius condendi canones).

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defined a gua'I'dianship as a ius, another defined it as a potestas; so again it seemed that the two words could be used interchangeably. But at this point the argument took a new and interesting turn. Accursius, in the Or­ dinary Gloss to the Digest, had suggested that guardianship might be called a "violent power" since it could be imposed on a person against his will. But Johannes would not accept that a ius could be based on violence, which was normally culpable. Rather ius was a power introduced by right, or by law, a iure introducta. Still not satisfied with his definition, Johannes introduced some more verbal equivocation, this time in connection with the word virtus as meaning either "force" or "virtue." He thought virtus was derived from vis intus; but one common definition of ius naturale called it a vis implanted in all creatures and hence, Johannes suggested, a virtus. This innate virtus was a natural power. But, the author continued, "Art imitates nature," and so the ius of the lawyers was a virtus too. But here the meaning of virtus shifted, and led Johannes to his final definition. ius was not a violent power but a "virtuous power."95 The argument involved word-play and a sort of web of free asso­ ciation of juridical ideas. It was not a philosophical argument; it had nothing to do with nominalism; still it led Johannes to a definition of ius as a subjective power, a "virtuous power" which was very similar to Ock­ ham's "licit power" and indeed to Gewirth's modern definition, "a rightful power." The definition acquired a broad currency in the later Middle Ages because it was incorporated into the standard commentary on the Liber Sextus of Johannes Andreae. Then, in the sixteenth century, Johannes An­ dreae was quoted in the widely-read Summa of the Dominican, Sylvester Prieras,96 and Sylvester, in turn, became a major source for Vitoria and other writers of the Spanish "second scholasticism." 95. Ibid. The gloss is so compressed and allusive as to resist literal translation, "Alio modo legitur illa littera ius cum dicat glossa ibidem ius et potestas, i.e. violenta potestas. Sed hec glossa videtur mala. Nam omne violentum est reprobum . . . sed accipitur (ius) pro potestate a iure introducta. Sic dicitur quod nature virtus i.e. vis intus id est vis insita rebus . . . est proprium in naturalibus _in quibus est vis generativa. Sed trahitur a simili in artificiatis, cum ars imitetur naturam in quantum posset, ff de adopt. si pater, 1, in fine, et sic dicitur ius et potestas, i.e. virtus potestativa seu virtuosa potestas. . . ." 96. Johannes Andreae reproduced the definitions of Johannes Monachus in slightly ab­ breviated form in his In titulum De regulis iuris novella commentaria (Venice, 1581), fol. 2v (Gloss ad Sext. 5.12). Cf. Sylvester Prieras, Summae Sylvestrinae (Venice, 1584), 79r. Johannes Andreae added a significant comment in another context, In quintum Decretalium librum novella commentaria (Venice, 1581), fol. 151v. The text of the Decretals (X.5.40.12) stated (quot­ ing Isidore of Seville), "Ius est a iure possidendo." Johannes commented, "Non loquitur hie Isidorus de iure generali quod legibus vel moribus constat . . . sed sumitur pro iure quod competit privato in re aliqua." It is just the distinction between ius as general law and ius as private right that one finds in Suarez and other seventeenth-century authors. On this text see below, 125.

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THE IDEA OF NATURAL RIGHTS

When Peter Olivi and Johannes Monachus discussed ius as subjec­ tive right, they were not casually or carelessly borrowing a usage from vulgar discourse. Rather each was providing a detailed analysis (philo­ sophical or juridical) of a concept whose importance was fully apparent to them. When Ockham in turn came to write on subjective rights there was no need for him to inaugurate a "semantic revolution." A rich lan­ guage already existed in which rights theories could be articulated. The doctrine of individual rights was not a late medieval aberration from an earlier tradition of objective right or of natural moral law. Still less was it a seventeenth-century invention of Grotius or Hobbes or Locke. Rather, we shall argue, it was a characteristic product of the great age of crea­ tive jurisprudence that, in the twelfth and thirteenth centuries, established the foundations of the Western legal tradition. Villey is justified in calling attention to the abuses of rights language by many modern theorists, but it is a good Thomist principle that abusus non tollit usum. The underlying concept may still prove of value in our political discourse. As to the history of the doctrine, there is still a great deal of work to be done. Villey may not have been correct in all of his conclusions, but he certainly stated the problem perceptively. "If all the modern juridical notions . . . born of the idea of subjective right still did not exist at Rome, what a vast field of inquiry is the investigation of their true origin!"97

97. "L'idee du droit subjectif," 226.

Two ORIGINS OF NATURAL RIGHTS LANGUAGE: TEXTS AND CONTEXTS, 1 150 -1250

M

odern histories of natural rights theories usually place the ori­ gin of such doctrines in the late medieval or early modern pe­ riods; rights theories are commonly associated with the spread of nomi­ nalist philosophy or the beginnings of an entrepreneurial economy.In this chapter I want to suggest that the humanistic jurisprudence of the twelfth century, especially the writings of the medieval Decretists, may provide a better starting point for investigating the origins of natural rights theories than either fourteenth-century nominalism or the nascent capitalism of the early modern world. To write a full history of natural rights theories, even for the modern period, would be a formidable task. Ever since the days of Hobbes and Locke (at least) the concept of individual rights has been of central im­ portance in Western thought. But also, from the seventeenth century to the present day, rights theories have been persistently attacked, and from many different points of view. The result is paradoxical.On the level of international politics a professed regard for "human rights" is mandatory; we argue mainly about which regimes are most cynical in purporting to defend them. But, on the level of philosophical discourse, the existence of natural or human rights is often dismissed altogether. According to Alis­ dair McIntyre, for instance, "there are no such rights and belief in them is one with beliefin witches and in unicorns." 1 1. A. MacIntyre, After Virtue, 2nd ed. (Notre Dame, 1984), 69. - 43 -

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THE IDEA OF NATURAL RIGHTS

As I noted earlier, a historian cannot hope to solve all the prob­ lems that are raised in this area by modem jurists and moral phi­ losophers.2 But modem discourse about rights is often associated with an implicit or sometimes quite explicit set of assumptions about the history of rights theories. So perhaps a historical approach can contribute some­ thing, at least peripherally, to the ongoing arguments. McIntyre himself asserts, mistakenly, that no language existed in which the concept of a right could be expressed before about 1400. 3 Leo Strauss and C. B. Mac­ Pherson and Ian Shapiro, in different ways, all base criticisms of modem rights theories in part on their understanding, or misunderstanding, of a supposed seventeenth-century origin of those theories.4 Often natural rights theories are treated as a modem aberration from an older, perhaps sounder, tradition of natural law. Jurgen Habermas, for instance, has written of a "positivization" (Positivierung) of classical natural law in the modem era. The older tradition, he explained, laid down norms for virtu­ ous living; the new doctrine of natural rights allowed "a neutral sphere of personal choice" in which each individual could egotistically pursue his own advantage.5 In this new way of thinking, a right was a freedom to act in any way that was not explicitly prohibited. Habermas referred here specifically to Hobbes. Earlier, Georges de Lagarde had made a similar point in discussing Ockham's rights theories; he found in Ock­ ham's philosophy of natural law "a zone of human autonomy" where, because nothing was prohibited, all was licit, and where human freedom could be exercised without restraint. "La, ou elle ne defend rien, tout est 2. For the earlier bibliography see R. Martin and J. W. Nickel, "Bibliography on the Nature and Foundations of Rights, 1947-1977," Political Theory 6 (1978): 395-413. Anthologies on rights which have appeared since 1977 often include some historical material. Among them are D.Lyons, ed., Rights (Belmont, 1978); E. Kamenka and A. E.Tay, eds., Human Rights (New York, 1978); B.Bandman, ed., Bioethics and Human Rights (Boston, 1979); W. Laqueur and B.Rubin, eds., The Human Rights Reader (New York, 1979); A. S. Rosenbaum, ed., Philoso­ phy of Human Rights (Westport, 1980); J.R. Pennock and J.W. Chapman, eds., Human Rights: Nomos XXII (New York, 1981). R.Martin and J.W.Nickel, "Recent Work on the Concept of Rights," American Philosophical Quarterly 17 (1980): 165-180 provides an overview of some main trends of modern thought. 3. After Virtue, 69. 4. Leo Strauss, Natural Right and History (Chicago, 1950); C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1964); I.Shapiro, T/11.' Evolution of Rights in Liberal Theory (Cambridge, 1986).In a methodological article, "Realism in the Study of the History of Ideas," History of Political Thought 3 (1982): 535-578, Shapiro comments, "If we want to understand our own beliefs as fully and critically as possible it is essential . . .to see where our beliefs come from and what functions they serve in the contemporary world" (577).I agree with this approach; but it only emphasizes the need to get our history straight. Shapiro sometimes writes as though the world began in the seventeenth century. 5. J.Habermas, Theory and Practice, trans. J. Viertel (Boston, 1974), 84.

ORIGINS OF NATURAL RIGHTS LANGUAGE

45

licite."6 This n'�tion that ius naturale, "natural right," could define an area of human liberty as well as a body of restrictive law was of central impor­ tance in the emergence of modern rights language. Habermas and De Lagarde both drew a contrast between the modern doctrine of natural rights and the thought of Thomas Aquinas, in whose work the older tradition of natural law found a classical expression. This observation, a commonplace in much recent writing on natural law theo­ ries, is true enough so far as it goes; but it has led to a radical error of periodization in most modern writing on the history of natural rights. John Finnis observed that, since there is no doctrine of subjective rights in Aquinas and there is such a doctrine in Suarez, a "watershed" must be situated somewhere between the thirteenth century and the seventeenth.7 But this view rests on the fallacy, widespread among modern jurists and philosophers who are not medieval specialists, that if an idea is not to be found in Aquinas it is not really a medieval idea at alL Another expla­ nation is possible. It may be that a juristic, distinctively non-Aristotelian theory of natural rights had grown up before Aquinas, that Aquinas did not choose to assimilate such ideas into his Christian-Aristotelian synthe­ sis, but that they did enter the mainstream of Western political thought through other channels. This is the thesis I want to explore. THE QUESTION OF ORIGINS

Natural rights theories seem to be a distinctively Western invention. But such theories have not been characteristic even of Western culture at all times and places. Whether the ancient Greeks had any concept of sub­ jective rights at all is debated; certainly they had no doctrine of natural rights. 8 (Sophocles' Antigone did not assert a God-given right; she found herself bound by an inexorable law.) Stoic thinkers conceived of natural law as an expression of divine reason pervading and ordering the whole cosmos, and they envisioned a natural law inherent in humankind as one aspect of this pantheistic world-view. Diogenes Laertius held that, "our 6. G. de Lagarde, La naissance de l' esprit laique au dee/in du Mayen Age, 6 vols. (Paris, 1934-46), 6:122, 157. 7. J. Finnis, Natural Law and Natural Rights (Oxford, 1980), 206-207. 8. For differing views on the ancient Greeks' concept of rights see J. W. Jones, The Law and Legal Theory of the Greeks (Aalen, 1977) 191; M. Ostwald, Nomos and the Beginnings of Athenian Democracy (Oxford, 1969), 113; K. J. Dover, Greek Popular Morality in the Time ofPlato and Aristotle (Berkeley and Los Angeles, 1974), 157. Most recently Fred Miller has maintained that a doctrine of natural rights was implicit in Aristotle's theory of justice. I have argued below (Ch. 11) that a· natural rights theory could be formulated in Aristotelian language; but I think such a theory came to be overtly asserted only in the medieval era. See F. Miller, Nature, Justice, and Right in Aristotle's Politics (Oxford, 1995).

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undivided natures are parts of the nature of the whole universe," and Cicero wrote of a vis innata, an innate force in humans through which they could discern the law of nature, ius naturae, that they were bound to ob­ serve. 9 But all this is far from a doctrine of individual natural rights. It is the same with classical Roman law. Julius Paulus gave an objec­ tive definition of ius as "what is right and good" and similar language was used to explain the primary meaning of ius by Aquinas a thousand years later. 10 Classical jurists, like Stoic philosophers knew of a natural moral law, accessible to human reason, but they did not derive from it a doctrine of natural rights.11 In early Christian thought too, Paul wrote of a law written on the hearts of men; but he did not assert that "all men are endowed by their Creator with certain inalienable rights." Many scholars have suggested that a doctrine of natural rights was always implicit in Judeo-Christian teaching on the dignity and moral autonomy of each individual human person. Such a concept of human personality could indeed provide a fitting basis for a theory of natu­ ral rights; and, of course, it does not nowadays have to be expressed in terms of Jewish or Christian theology (though religious cultures that regard individuation as illusory are not likely to develop rights theories spontaneously.) But, if a doctrine of rights has always been implicit in Judeo-Christian thought, it has certainly not always been explicit. 12 Merely calling attention to Judeo-Christian values does not solve the problem of origins. The historian's task remains-to understand the particular situ­ ation in which an old ideal of human dignity could first find expression in a new theory of natural rights. There are two basic questions to be an­ swered. When did the phrase ius naturale, which traditionally meant cos9. Diogenes Laertius, Lives 7, 88; Cicero, De inventione, 2.22.65. On Stoic concepts of natural law in humans see M. C. Horowitz, "The Stoic Synthesis of the Idea of Natural Law in Man: Four Themes," Journal of the History of Ideas 35 (1974): 3- 16. For Stoic influence in the Middle Ages see G. Verbeke, The Presence of Stoicism in Medieval Thought (Washington, D.C., 1983). Some Stoic thinkers, especially the later ones, found a place for conscience and choice in their systems, but choice meant only a capacity to accept or reject a fate that was already predetermined. Senecca wrote "fate volentem ducunt nolentem trahunt" (Ep. 107.11). 10. Digest 1.1.11. Other definitions followed, but they did not include the idea of ius as subjective right. For Aquinas see Summa theologiae 2.2ae.57.l . Ulpian gave a definition of ius naturale (often quoted in medieval sources) as "what nature has taught all animals" (Dig. 1.1. 1.3). 11. See H.L.A. Hart, "Bentham on Legal Rights," reprinted in D. Lyons, Rights, 126, "The concept of a right, legal or moral, is not to be found in the work of the Greek philoso­ phers. . . . Jurists of stature have even held that . . . Roman law never achieved a clear concept of a legal right. Thus Maine wrote . . . 'the clear conception of a legal right . . . be­ longs distinctively to the modern world'." 12. John A. Henley, "Theology and the Basis of Human Rights," Scottish Journal of Theol­ ogy 39 (1986): 361-378 discusses recent literature on Christianity as a basis for rights theories. He refers to "the silence of much of the Christian tradition on the subject" (367).

.,.,.

ORIGINS OF NATURAL RIGHTS LANGUAGE

47

mic harmony or objective justice or natural moral law, begin to acquire also the sense of a subjective natural right? And what cultural context, what set of contingent historical circumstances, made the shift of meaning possible and acceptable? The two questions are really inseparable. Nowadays we are often reminded that, when we purport to study the history of political ideas, we are really concerned-or should be-with political language, with the history of political discourse. Hence our first task is to understand the context that sustains a particular style of discourse and renders it intelli­ gible. Different modern authors dwell on different kinds of context. 13 Some metahistorians write as though the study of language itself is enough, as though language constitutes a magic kingdom of its own, a context suffi­ cient to itself. Other critics, more sensibly I think, insist that we can and should situate language in a real world of life and action. In any case, a characteristic, recurring problem for historians is that patterns of discourse persist in contexts different from the one that first gave rise to them. So perhaps we need to be reminded that "the performance of speech acts not merely modifies language, but leads to the creation and diffusion of new languages," that "any text may be an actor in an indefinite series of linguistic processes," 1 4 that "all linguistic interpretation involves interpre­ tation by an audience."1 5 Sometimes the currently favored hermeneutical approaches to intel­ lectual history may seem merely portentous ways of stating platitudes that old-fashioned historians used to take for granted. After all, we have un­ derstood for a long time, without benefit of advanced literary theory, that the words of Magna Carta did not mean the same thing to a seventeenth­ century parliamentarian as to the barons of 1215. And to tell a historian of ideas that what he has been reading and writing all the time is really lan­ guage may seem merely like telling M. Jourdain that what he has been speaking every day is really prose. But not all the points raised by recent intellectual historians are trivial and sometimes they are relevant for our inquiry. Dominick LaCapra defined our problem precisely, if unintention­ ally, when he discussed "noncanonical readings of canonical texts" and 13. For a recent critical discussion of some current approaches see A. Pagden, "Rethink­ ing the Linguistic Turn: Current Anxieties in Intellectual History," Journal of the History of Ideas 49 (1988): 519-29. 14. J.G.A. Pocock, "The Concept of Language and the metier d'historien: Some Consider­ ations on Practice," in A. Pagden, ed., The Languages of Political Theory in Early-Modern Europe (Cambridge, 1987), 19-38, at 29, 31. Balzac put it more simply at the beginning of Louis Lam­ bert, "Quel beau livre ne composerait-on pas en racontant la vie et les aventures d' un mot? Sans doute il a rec;u diverses impressions des evenements auxquels il a servi; selon les lieux, il a reveille des idees differentes. . . . " The passage is quoted in S. Ullman, Semantics (New York, 1962), 14. 15. Shapiro, "Realism," 546.

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emphasized the need "to pose as an explicit problem the way in which texts are related to contexts." 16 Our texts are "canonical" in a stricter sense than LaCapra intended and our purpose is precisely to understand how canonistic texts inherited from classical and early Christian sources were reinterpreted in the context of a new age. There was plenty of room for reinterpretation. The simple-looking little phrase, ius naturale, is a semantic minefield. Erik Wolf once observed that the word "natural" has seventeen meanings and the word ius fifteen; so, he concluded, there could be two hundred and fifty-five possible mean­ ings for ius naturale. But this was too modest a count. Arthur Lovejoy more enterprisingly found sixty-six meanings for "natural," and the canonist Jo­ hannus Monachus gave over twenty definitions of ius. 1 7 The number of possible combinations becomes mind-boggling. Fortunately we shall not need to consider all of them. We shall be concerned mainly with ius as meaning either objective law or subjective right, and with "natural" as meaning either a primeval state of affairs or an intrinsic permanent char­ acteristic of any being, as when we speak of "the nature of man." It is the latter meaning that is more important in investigating the origins of natural rights theories. SOURCES OF MODERN RIGHTS LANGUAGE

Let us begin with some examples of the language used by modern rights theorists. (I do not want to be anachronistic, but if we are to ex­ plore origins we need to know first what we are seeking the origins of.) Seventy years ago, W. N. Hohfeld gave an influential taxonomy of rights as claims, liberties, powers, or immunities. 18 Modern jurists and philosophers who "take rights seriously" continue to emphasize such words as "free­ dom," "claims," "power," "choice." When specifically natural rights are discussed the patterns of language include words like "moral," "licit," "ra­ tional." Natural rights are also often related to the basic needs of humans as moral agents, as in the work of Alan Gewirth. Gewirth distinguishes be­ tween two classes of rights in the phrase, "rightful claims or powers"; other authors use the terms "passive rights" and "active rights" to make the same distinction. Some modern rights theories emphasize more the 16. D. LaCapra, "Intellectual History and Defining the Present as 'Postmodern'," in I. Hassan and S. Hassan, eds., Innovation/Renovation. New Perspectives on the Humanities (Madison, 1983), 47-63 at 54. 17. E. Wolf, Das Problem der Naturrechtslehre, 3rd ed.(Karlsruhe, 1964). A. 0. Lovejoy and G. Boas, A Documentary History of Primitivism and Related Ideas (Baltimore, 1935), 1:448; Jo­ hannes Monachus, Glossa Aurea (Paris, 1535) ad Sext. 1.6.1 6, fol. xcir. The text of Johannes Monachus is discussed in the preceding chapter. 18. W. N. Hohfeld, Fundamental Legal Conceptions (New Haven, 1919).

ORIGINS OF NATURAL RIGHTS LANGUAGE

49

powers, oth;;s more the claims. Plamenatz, in an early formulation, de­ clared that, "A right is a power which a creature ought to possess. . . . " 19 Joel Feinberg defined a right rather as a "valid claim" justified by "some set of governing rules or moral principles." He distinguished sharply between favors, "motivated by love or piety or mercy," and rights that could be "de­ manded, claimed, insisted upon."2° For him a real right was a claim that could actually be asserted against society as a whole or against some spe­ cific person.21 A common theme, in modern discourse on rights is the relationship between rights and free choice. Feinberg points out that the holder of a right can "choose whether or not to exercise it."22 H.L.A. Hart also empha­ sizes freedom of action. The right holder has autonomy or "sovereignty" in the relevant sphere. In the case of a promise, for instance, "If he chooses to release the promisor no one else can complain."23 According to this un­ derstanding of the term, a right defines a sphere of licit action within which a person is free to exercise a power or make a claim, free to act as he chooses. Robert Louden, inveighing against an alleged modern "infatu­ ation" with rights, explains that "rights are permissions rather than re­ quirements. Rights tell us what the right bearer is at liberty to do, not what he must or must not do. . . . "24 In the language of Habermas, rights define "a neutral sphere of personal choice." Many modern rights theorists, including Feinberg and Hart, have made the point that to be the beneficiary of a duty is not necessarily the same thing as having a right, even though this is often the case. Feinberg 19. J. P. Plamenatz, Consent, Freedom and Political Obligation (Oxford, 1938), 82. Cf. T. H. Green, Lectures on the Principles of Political Obligation (London, 1941), 207. "A right is a power of acting . . . secured to an individual by the community. . . . " Similarly F. C. von Savigny, System des heutigen Romischen Rechts, 9 vols. (Berlin, 1840-51), 1:7 " . . . die der einzeln Person zustehende Macht: ein Gebiet worin ihr Wille herrscht. . . ." For discussion of rights theories in Germany, see A. Vonlanthen, Zurn rechtsphilosophischen Streit uber das Wesen der subjectiven Rechts (Zurich, 1964). 20. J. Feinberg, "The Nature and Value of Rights," Journal of Value Enquiry 4 (1970): 243- 257, at 257; "Duties, Rights, and Claims," American Philosophical Quarterly 3 (1966): 137-144 at 143. 21. This led to difficulties when Feinberg considered natural rights. A starving child in a third-world country has an obvious claim to be fed, but in an impoverished society there may be no one to whom the claim can be meaningfully addressed, "Duties, Rights, and Claims," 142. Feinberg concluded that such claims, arising from basic human needs, can and should give rise to rights but that they can be called actual rights only through an exercise of "rhetorical license." "Nature and Value," 255. 22. "Nature and Value," 250. 23. H.L.A. Hart, "Are There Any Natural Rights?," Philosophical Review 64 (1955): 175-191 at 184. 24. R. L. Louden, "Rights Infatuation and the Impoverishment of Moral Theory," Journal of Value Inquiry 17 (1983): 87-102, at 95.

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THE IDEA OF NATURAL RIGHTS

referred to a general "duty of charity" which does not necessarily give rise to a right in any particular recipient. Hart gave an example of third-party beneficiaries. If a promises b to confer a benefit on c, then c has no right against a (though b does). 25 The underlying point is that, in using the lan­ guage of subjective rights, we can make moral assertions that are not always identical with those of moral systems concerned only with duties or objective justice. The distinction is significant because moral codes do not have to be expressed in terms of rights, and indeed they usually have not been so expressed. Hart pointed out that we should not normally regard the Ten Commandments as conferring rights. He also observed that natural law thinkers down to the end of the sixteenth century usually con­ ceived of natural duties but not of natural rights. This takes us back to the historian's problem of origins. If ade­ quate moral systems can be articulated without any appeal to subjec­ tive rights, and normally were so articulated until quite recently, how did rights language emerge in the first place? What is its source? Back to a certain point in time the answer seems clear enough. The language of twentieth-century writers echoes that of the classical natural rights the­ orists of early modern Europe. At the beginning of the seventeenth cen­ tury Suarez defined ius specifically in terms of the powers and claims of an individual. In a complex discussion of all the meanings of the word he wrote: According to its strict signification ius is called a kind of moral power (Jacultas) which anyone has concerning his own property or something due to him. So the owner of a thing is said to have a right in the thing and a workman is said to have a right to his wages . . . . 26

A little later (c. 1625) Grotius gave three meanings of ius. The word could mean "what is just" (the preferred definition of Aquinas). Or it could mean a kind of law, and in that sense ius naturale was a "dictate of reason." But between these two definitions Grotius introduced another, subjective sense of ius and this he explored in most detail: Ius is a moral quality of a person enabling one to have or do something justly. 27 25. Feinberg, "Nature and Value," 244.Hart, "Natural Rights," 180. For medieval discus­ sion of this question see below, 71, 74. 26. De legibus ac Dea legislatore, ed. L. Perefta, 8 vols. (Madrid, 1971-81), 1 : 1 .2.5, 24, "Et iuxta . . . strictam iuris significationem solet proprie ius vocari facultas quaedam moralis, quam unusquisque habet vel circa rem suam vel ad rem sibi debitam; sic enim dominus rei dicitur habere ius in re et operarius dicitur habere ius ad stipendium . . ." 27. De jure belli et pacis (Amsterdam, 1646) (reprinted Washington, D.C., 1913), 1 . 1 .4, 2, " . . . quo sensu jus est, Qualitas moralis personae, competens ad aliquid juste habendum vel agendum."

ORIGINS OF NATURAL RIGHTS LANGUAGE

51

This "moral q{iality" could also be called a faculty; it could include power over oneself, meaning liberty, and powers or claims in relation to other persons or things. Suarez and Grotius distinguished a subjective meaning of ius from other connotations of the word. It was left for Hobbes to insist that the subjective meaning was the only proper one: The RIGHT OF NATURE which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature. . . . A LAW OF NATURE, lex naturalis, is a precept or general rule found out by reason, by which a man is forbid­ den to do that which is destructive of his life . . . law, and right, differ as much, as obligation and liberty. . . . 28

Later he explained that the sphere of liberty was defined by "the silence of the law"; where laws did not command or forbid, a person was free to act as he wished.Hobbes seems to deviate from the preceding tradition, not only in giving an exclusively subjective definition of ius, but also in ex­ cluding the idea of moral rightness from his definition.(For Suarez and Grotius ius was a moral power, a moral quality.) But later authors devel­ oped Hobbes's distinction between natural rights and natural law in ways that restored the moral content of a natural right. Perhaps the most clear and coherent account of natural laws and natural rights in a fully developed, eighteenth-century Enlightenment form of the doctrine is that given by Christian Wolff.For Wolff, law (lex) is a rule that obliges us. Natural law, law inherent in the rational nature of man, obliges each person to seek self-perfection. But the fulfillment of moral obligation requires a certain freedom of action; and, Wolff declared, "This faculty or moral power of acting is called a right (ius)." Carrying the argument further, Wolff explained that "What the law of nature obliges to as an end, ius gives as a means."29 He gave as an obvious example the right to food as a means of self-preservation.Wolff also held that, besides commanding and prohibiting, natural law could be merely permissive, indicating behavior that was licit but not obligatory; natural rights ex­ isted in this area of permissive natural law. 30 One is reminded again of 28. Leviathan, ed. M. Oakeshott (Oxford, 1946), 1.14, 84. Hobbes, however, was practising a sort of linguistic legislation here. In normal seventeenth-century discourse the word ius did not have the exclusive sense he attributed to it, as one can gather from the texts of Suarez and Grotius; rather the word could be used in one sense as equivalent to lex, a kind of law, or it could be used in a different sense to mean a subjective right. We shall find the same situ­ ation in medieval discourse. 29. Institutionesjuris naturae et gentium, ed. M. Thommann in Gesammelte Werke, Abt 2, 36 vols. (Hildesheim, 1968-83), 26: 1.1.46, 24, "Facultas ista, seu potentia moralis agendi dicitur Jus . . . Quodsi ergo lex naturae obliget adfinem, jus quoque dat ad media . " 30. See below n. 85.

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Habermas's "neutral sphere of personal choice" or de Lagarde's "zone of human autonomy." By the seventeenth century, then, complex rights theories existed in which words like "nature," "reason," "licit," "right," were interwoven with words like "power," "freedom," "faculty." We still need to ask: Where does this cluster of ideas come from? How did these patterns of language arise? There have been many explanations, most of them concerned with the context of seventeenth century life itself. Some scholars have argued that the English Levellers' claim to religious freedom was the first adapta­ tion of the old natural law tradition to defend a new doctrine of subjective natural rights. 31 C. B. MacPherson discerned, behind the religious rhetoric of the age, the presuppositions of a free market economy; and he argued that these presumptions engendered a doctrine of "possessive individual­ ism" in which freedom was identified with property, and natural rights theories served the narrow interests of the propertied classes. 32 Leo Strauss called attention to the shift from final causes to efficient causes associated with the Scientific Revolution. The old tradition of natural law had been concerned with human ends; in the new world of thought one had to start from man's motives, his innate desires, which Hobbes presented as rights. So rights replaced duties as the starting point for political reflection. Strauss did not regard it as a change for the better.33 Such views are typical of those that find the origin of modem rights theories in some aspect of the religious, economic or intellectual life of the seventeenth century. Michael Oakeshott, in a seminal essay on Hobbes, suggested that we need to consider the problem in a broader context; seventeenth-century 'thinkers, he suggested, were influenced not only by the circumstances of their own age but also by an earlier tradition of thought that they had inherited. Specifically, the skepticism and individu­ alism of Hobbes were "gifts of late medieval nominalism."34 This point of view has been worked out in most detail by Michel Villey, whose work I have already discussed. According to Villey, the modern doctrine of subjective rights emerged quite suddenly in the four­ teenth century. Its creator was the nominalist philosopher, William of 31. M. Roshwald argued that an ancient doctrine of natural law and a medieval empha­ sis on concrete individual rights first came together to form a theory of natural rights in the works of the Levellers: "The Concept of Human Rights," Philosophy and Phenomenological Re­ search 19 (1958-59): 354-379. More recently W.Garrett has suggested that medieval natural law served to defend the autonomy of secular government against the church; in developing natural rights theories, the Levellers aimed rather to defend the religious freedom of indi­ viduals against the state: "Religion, Law, and the Human Condition," Sociological Analysis 47 (1987): 1-34. 32. Possessive Individualism, 1-4, 220-238. 33. Natural Right and History, 166, 180-181. 34. Introduction to Leviathan, liii.

ORIGINS OF NATURAL RIGHTS LANGUAGE

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Ockham, who defined ius as "a licit power." As Villey explains things, Ockham's voluntarism emphasized power rather than reason and his nominalism attributed reality to individuals rather than universals; so his political philosophy was inevitably concerned with the powers of in­ dividuals, which Ockham called rights. 35 Villey's views have been widely and often uncritically accepted. Ock­ ham remains by far the favorite choice as innovator among those who seek a pre-seventeenth-century origin for natural rights theories. But re­ cently the contribution of another late medieval theologian, Jean Gerson, has also been emphasized. Gerson did in fact give an explicit definition of ius as "an immediate faculty or power pertaining to anyone according to right reason" and of lex as "a rule in conformity with right reason."36 So, as Richard Tuck pointed out, he had already made the distinction that we encounter later in seventeenth-century works between subjective right and objective law. 37 We should add that Gerson also associated ius with the idea of synderesis, which he called a "superior" kind of reason, a capacity for moral discernment akin to our conscience. 38 So, for him, ius was pri­ marily an innate power to act rightly according to reason and conscience. This is not quite what we mean by a natural right in modern discourse. But Gerson further declared that from ius so defined it was possible to deduce, by a sort of mathematical reasoning, a whole theory of government and property. 39 He held that there were God-given rights which included lib­ erty, "a faculty of acting or not acting," and dominion, "a right of taking inferior things for one's use and preservation."40 Gerson further associated his idea of ius with the Pauline doctrine of evangelical liberty (here appar­ ently following Ockham).41 Gerson was widely quoted by later Parisian conciliarists and by the Spanish scholastics of the sixteenth century. Christopher St. Germain used 35. M. Villey, La formation de la pensee juridique moderne, 4th ed. (Paris, 1975), 199-272. 36. De vita spirituali animae in P. Glorieux, ed., Jean Gerson. Oeuvres completes, 10 vols. (Paris, 1961-73), 3:141, "Jus est facultas seu potestas propinqua conveniens alicui secundum dictarnen rectae rationis." The definition of lex, with a slightly different definition of ius, is in De potestate ecclesiastica, Oeuvres 6: 242, "Jus est facultas seu potestas propinqua conveniens alicui secundum dictamen primae justitiae . . . lex est regula conformitatem habens ad dic­ tamen rectae rationis." 37. R. Tuck, Natural Rights Theories. Their Origin and Development (Cambridge, 1979), 25-26. 38. De vita, 142. According to Gerson, man could know the universal principles of good through synderesis and from them deduce particular rules of action. On synderesis in me­ dieval natural law theories see M. B. Crowe, The Changing Profile of the Natural Law (The Hague, 1977), 123...:.35_ 39. De vita, 143. 40. De vita, 145. 41. De vita, 129.

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his work in England. And Suarez listed the specific chapters in which Gerson discussed the meaning of ius as among the major sources of his own treatise, De legibus. Clearly, then, Gerson was very influential. It is not so clear though that his views on rights-or those of Ockham-were also highly innovative. If we are to find an earlier origin for natural rights theories we need to look for patterns of language in which ius naturale meant, not only natural law or cosmic harmony, but also a faculty or ability or power of individ­ ual persons, associated with reason and moral discernment, defining an area of liberty where the individual was free to act as he pleased, leading on to specific claims and powers of humans qua humans. I want finally to argue that this whole complex of associated ideas, this lattice work of lan­ guage, first grew into existence in the works of the medieval Decretists. The authors we shall need to discuss-Rufinus and Ricardus and Huguc­ cio and Alanus and others whose names have been forgotten-are not much read nowadays except by specialists in this field. None of them wrote an accessible, explicit little treatise on natural rights, which perhaps helps to explain why they are not much noticed in modern histories of the concept. Their patterns of thought have to be reconstructed from scat­ tered, sometimes laconic glosses on a variety of topics. There is no one text that could find a place in the canon of "great books" on Western political theory. But the Decretists' views were widely diffused in the law schools of Europe by the end of the twelfth century and, transmitted in eclectic works like the ordinary gloss to the Decretum and Guido de Baisio's Rosar­ ium, they continued to influence late medieval writers, not least Ockham and Gerson. Gerson himself mentioned the opening chapters of the De­ cretum in introducing his discussion of rights. He proposed to follow a different methodology, he wrote, but added, "We shall not say things dif­ ferent from others, though perhaps differently." 42 CANONISTIC RIGHTS LANGUAGE-CONTEXTS

Let us begin with the twelfth-century world in which the canonists lived and taught. Medieval society was saturated with a concern for rights. At the very highest level popes asserted rights against emperors and em­ perors against popes. The papal claim to "rights of heavenly and earthly empire" (terreni simul et celestis imperii iura), included in Gratian's Decretum at Dist. 22 c.l, gave rise to extensive theoretical argument among the 42. De vita, 143, " . . . non quidem alia dicturus quam alii, quamquam forte aliter." Gerson did not overtly quote canonistic texts as frequently as his master in theology, Pierre d'Ailly. But he was intensely interested in canon law, partly indeed because of his dissatis­ faction with the state of the discipline at the beginning of the fifteenth century.

ORIGINS OF NATURAL RIGHTS LANGUAGE

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canonists anctto endless conflict in the sphere of real-life politics.(The text also provided the starting point for one of Gerson's most detailed discus­ sions on the rights of rulers.)43 Since neither the spiritual nor temporal power could wholly dominate the other, medieval government never con­ gealed into a rigid theocratic absolutism in which rights theories could never have taken root. Instead, in the vigorous, fluid, expanding society of the twelfth century, old rights were persistently asserted and new ones insistently demanded. A great feudal lord could enjoy simultane­ ously all the rights enumerated in Hohfeld's modern classification-a claim to rents and services, a power to do justice, an immunity from ex­ ternal jurisdiction, a liberty to, say, hunt in the neighboring forest.Cathe­ dral canons asserted their rights against bishops.Bishops and barons de­ fended their rights against kings.Newly-founded communes sometimes bought their rights and sometimes fought for them.(In the twelfth century grants of rights were often made to corporate groups, but as A.L.Harding has pointed out, they were commonly rights of a kind that could be actu­ ally exercised only by individual persons.44) Even peasants, emigrating to found new villages in the still vast expanses of forest and wasteland, could claim enhanced liberties from lords who needed fresh supplies of labor.45 Medieval people first struggled for survival; then they struggled for rights. Of course all these rights were rights of particular persons or classes; they provide only a background for our inquiry into the origins of natu­ ral rights theories.But, before turning to that theme, we need to consider some other aspects of medieval life. It is unprofitable, perhaps, to ask whether the twelfth century "discovered" the individual.I suspect that in all cultures some persons are more self-aware than others, more given to reflection on individual experience.But twelfth-century civilization was certainly marked by a new emphasis on personalism or humanism, and it found expression on many levels of thought and feeling. Courtly love literature explored the joys and pains of human lovers. Religious piety cultivated an intense emotional relationship between the individual Chris­ tian and the person of Jesus.Peter Abelard taught that the moral value of an act was determined entirely by individual intention.Private scrutiny of conscience, followed by private confession1 became a common practice. Such concern for human persons could easily lead on to reflection about human rights.Twelfth-century culture was also characterized by a great flourishing of new centers of corporate life-communes1 guilds, confra­ ternities, collegiate churches, monastic houses; but we have learned to 43. De potestate, 236. 44. A. L. Harding, "Political Liberty in the Middle Ages," Speculum 55 (1980): 423-443. 45. On peasant "individualism" see A. Macfarlane, The Origins of English Individualism (Cambridge, 1979). I doubt whether the English experience was so exceptional as the author supposes.

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understand that the corporatism of the age was not antithetical to its in­ dividualism but complementary.46 Among all the "renaissances" of the twelfth century the one most significant for us was the revival of legal studies, first the recovery of the whole corpus of Roman law, then the reordering of the confused mass of church law that had accumulated over many centuries in the Decretum of Gratian (c. 1140), "the first comprehensive and systematic legal treatise in the history of the West," according to Harold Berman.The concern with individual intention, individual consent, individual will that character­ ized twelfth-century culture spilled over into many areas of canon law.In marriage law, by the end of the twelfth century, the simple consent of two parties, without any other formalities, could constitute a valid, sacra­ mental marriage.In contract law, a bare promise could create a binding obligation-it was the intention of the promisor that counted.In criminal law, the degree of guilt and punishment was again related to the intention of the individual defendant, and this led on, as in modem legal systems, to complex considerations about negligence and diminished responsibility, areas of law that we nowadays think of as mediating between the rights of individuals and the maintenance of public order.47 Given this whole background, one might expect to find an emphasis also on individual rights in the works of twelfth-century academic law­ yers.Villey was reluctant to admit this.He acknowledged that, in vulgar medieval discourse, the word ius might be used carelessly to mean an in­ dividual right, but he argued that this usage could not infect academic jurisprudence until Ockham had provided a new philosophy to justify it.48 But the evidence against his position is overwhelming.Indeed Villey himself, and Tuck too, following Villey, saw that a doctrine of subjective rights was implicit in the civilian glossators' treatment of dominion-own­ ership, rulership, mastery-as a kind of right.Neither of the two modem authors, however, seemed interested in following up the implication of his own argument.Villey wrote dismissively that the writings of the civi­ lian glossators were full of "contradictions and hesitations and frustrated 46. The best overview of twelfth century culture is R. L. Benson and G. Constable, eds.,

Renaissance and Renewal in the Twelfth Century (Cambridge, Mass., 1982). See especially the

contribution of J. F. Benton to this volume, "Consciousness of Self and Perceptions of Indi­ viduality" (263-295). For an introduction to various aspects of twelfth-century individualism see C.Morris, The Discovery of the Individual, 1050- 1 200 (London, 1972) and the further litera­ ture cited in the discussion between Caroline Bynum and Morris in Journal of Ecclesiastical History 31 (1980): 1-17 and 195-206. The question of corporatism and individualism is also considered here. For further discussion on this see below, 208 ff. 47. The most recent full-scale treatment of these themes is H. Berman, Law and Revolu­ tion. The Formation of the Western Legal Tradition (Cambridge, Mass., 1983). 48. La formation, 239.

ORIGINS OF NATURAL RIGHTS LANGUAGE

57

endeavors."4-;Tuck found in the twelfth-century glosses only an inade­ quate theory of passive rights, apparently because the glossators of Roman law referred to dominium as a right that could be claimed or asserted against all other persons (but Tuck's argument grows very fuzzy at this point in his work). 50 Neither Villey nor Tuck paid much attention to the treatment of ius in the canonists' writings. Tuck found in their work only a collection of claim rights again, and Villey an assertion of legal or moral precepts. Both authors were interested mainly in investigating the origin of active rights, ius conceived of as liberty or power, and they seem to have found little to interest them in the work of the Decretists. Tuck, for instance, suggested that Gerson was the first to treat liberty as a right. But in fact Gratian him­ self wrote of the iura libertatis, the rights of liberty, that could never be lost however long a man was held in bondage. 51 And the association of right and power, ius and potestas (Ockham's "semantic revolution" according to Villey), was commonplace in twelfth-century canonistic discourse. The papal election decree incorporated into the Decretum at Dist. 23 c.1 referred to "the right of the power to elect" (ius potestatis eligere). In discussing the status of bishops-elect, Huguccio wrote simply, "They have the power of administering that is the right of administering."52 Gratian attributed to the pope a right (ius) of establishing laws (surely an active right), and Huguccio observed that since the pope had been given the right, therefore he had full power in this matter. 53 Innocent III referred to the right of elect­ ing as a Jacultas and a glossator paraphrased his words by describing the right (ius) as a "free power."54 Such examples could be multiplied. Individual rights were important to the canonists. They had to be protected. In the ordinary glosses to both the Decretum and the Decretals, the standard medieval commentaries on the texts, we can read that no one was to be deprived of his right except 49. "Le 'jus in re' du droit romain classique au droit moderne," in ConferencesJaites a l'Institut de Droit Romain (Paris, 1950), 187- 225, at 190. 50. See below, 218 n. 32. 51. Decretum Gratiani . . . una cum glossis (Venice, 1600), C.16 q.3 dictum post c.15. 52. Huguccio, Summa ad Dist. 23.c.l, MS Admont 7, fol. 29rb, ". . . habent potestatem administrandi id est ius administrandi sed non habent executionem illius iuris in actu." 53. C.25 q.l dictum post c.16; Huguccio ad Dist. 4 dictum post c.3, MS Admont 7, fol. 6vb. 54. Decretales D. Gregorii Papae IX cum glossis (Lyons, 1614), 1.4.8 ". . . ius eligendi abbatem adiudicare curetis, ut sic de caetero liberam habeant facultatem . . . eligendi. . . . " The casus of the Glossa Ordinaria has " . . . adiudicent monachis . . . ius eligendi abbatem, ut liberam habeant potestatem . . . eligendi. . . . " For many examples of ius used in a subjective sense to mean an individual right in thirteenth-century canonistic texts, see C. J. Reid, "The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry," Boston Col­ lege Law Review 33 (1991): 37-92.

58

THE IDEA OF NATURAL RIGHTS

for grave cause. 55 The canonists also understood clearly the difference between claim rights and active rights; and around 1200 they developed a technical vocabulary to distinguish between them-the terms ius ad rem and ius in re that were still being used by Suarez in his seventeenth­ century rights theory. All this is reasonably straightforward. In a world where rights were constantly being asserted and demanded, the language of the jurists re­ flected the realities of their age. The context serves to explain the texts. 56 The point would hardly be worth making except that it has been disputed. But we have still not reached the heart of the problem. We have not yet ad­ dressed the question of when and how a doctrine of natural rights came to be asserted. To understand this we have to turn from the social and cul­ tural context of the canonists to the fundamental, tangled text that they labored to expound, Gratian's Concordantia discordantium canonum, com­ monly known as the Decretum. This text itself forms part of the context that we need to understand if we are to interpret adequately the discourse of twelfth-century canonists. CANONISTIC RIGHTS LANGUAGE-TEXTS

The canonists could not avoid detailed scrutiny of the term ius natu­ rale because Gratian chose to base his whole structure of jurisprudence on an initial distinction between natural law and human usages, set out in the first words of the Decretum: The human race is ruled by two (means) namely by natural law and by usages. Natural law (ius) is what is contained in the Law and the Gospel by which each is commanded to do to another what he wants done to himself and forbidden to do to another what he does not want done to himself. 57

55. Gloss ad Dist. 56 c.7; Gloss ad X.4. 13.11 . 56. In emphasizing contexts, I am not suggesting any kind o f historical determinism. Of course different persons respond differently to the same situation. Among the twelfth­ century canonists, for instance, Huguccio and Alanus held sharply opposed views on the rights of popes and emperors. But to understand either Huguccio or Alanus we have to know something about the context of papal-imperial relations at the end of the twelfth cen­ tury and about the context of Decretist thought within which both authors worked. 57. Dist. 1, dictum ante c.l, "Humanum genus duobus regitur, naturale videlicet iure et moribus. Ius naturale est, quod in lege et Evangelio continetur: quo quisque iubetur alii facere quod sibi vult fieri et prohibetur alii inferre quod sibi noli fieret." There is now an En­ glish translation of the first twenty Distinctiones of the Decretum together with the gloss of Johannes Teutonicus. See Gratian. The Treatise of Laws With the Ordinary Gloss, trans. A. Thompson and J. Gordley (Washington D.C., 1993).

ORIGINS OF NATURAL RIGHTS LANGUAGE

59

To distingui� thus between universal natural law and varying human practices may seem to be a typical medieval tactic. The difficulties arose because, when Gratian sought to buttress his initial definition with canon­ ical authorities and to pursue their implications, his argument led to a morass of internal contradictions, or apparent contradictions. After giving his opening definition, Gratian quoted in support of it some words of Isidore of Seville: All laws are either divine or human. Divine laws stand by nature, human by usage. Fas is divine law, ius is human law. To pass through another's field is fas, it is not ius. 58

We shall have to return to fas and ius. But to continue with Gratian's ar­ gument: He went on to present another text of Isidore which included multiple descriptions of the content of natural law: Natural law (ius) is the law common to all peoples, in that it is every­ where held by instinct of nature, not by any enactment: as, for instance, the union of man and woman, the generation and rearing of children, the common possession of all things and the one liberty of all, the acquisition of those things which are taken from air and land and sea; also the return of a thing deposited or money loaned, the repulsion of force by force. 59

Some difficulties may already be apparent. The texts cited in support of Gratian's opening definition did not contain the Golden Rule that con­ stituted natural law for Gratian himself. Moreover Isidore's natural law was not a rule enjoined by scripture, like Gratian's, but a product of in­ stinctual behavior. And, again, Isidore's natural law included principles not evidently compatible with scripture. Isidore, for instance, wrote of common property as an aspect of natural law, but scripture recognized private possessions. There are various other anomalies in the first chapters of the Decretum but it will be enough for our purpose to pursue the argument about prop­ erty. Apparently unaware of any difficulties, Gratian forged serenely ahead. Natural law, he wrote, held primacy over all others in time and dig­ nity for it began with the origin of rational creatures and remained always immutable. It differed from human law because, by natural law, "all things are common to all," whereas human law had established private prop58. Dist. 1 c.1, "Omnes leges aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant. ...Fas lex divina est, ius lex humana. Transire per agnun alienum fas est, ius non est." 59. Dist. l c.7, "lus naturale est commune omnium nationum eo quod ubique instinctu naturae non constitutione aliqua habetur, ut viri et feminae coniunctio, liberorum successio et educatio, communis omnium possessio, et omnium una libertas, acquisitio eorum quae caelo, terra, marique capiuntur, item depositae rei vel commendatae pecuniae restitutio, vio­ lentiae per vim repulsio."

60

THE IDEA OF NATURAL RIGHTS

erty. 6° Finally, Gratian declared that any human law contrary to natural law was to be held null and void. 61 The conclusion seems obvious. The human law instituting private property was null and void. But Gratian really had no intention of asserting any such doctrine. In his own day both canon and civil law recognized the licitness of individual property, and Gratian simply took the fact for granted throughout the whole subsequent argument of the Decretum. In Causa 12, for instance, he wrote that even a bishop could have private property. The implicit contradiction was never discussed by Gratian himself. But the canonists who commented on the texts of the Decretum from about 1150 onward could see the difficulties inherent in them at least as clearly as any modem reader can; and almost at once they realized that the apparent incoherence in Gratian's thought and language arose from the fact that the texts he presented used the term ius naturale in several different senses. 62 If one could discriminate between them, the apparent difficulties might be resolved. As Ricardus Anglicus pointed out, there was no incoherence if ius naturale in one meaning of the term contradicted ius naturale in some other meaning. (So private property might be contrary to natural law in one sense of the term, but in accordance with it in another sense.) It soon became a common exegetical technique among the early Decretists to provide long lists of all the possible meanings of the term ius naturale­ including, perhaps, some that no one had thought of before. Huguccio ex­ plained the problem to his students near the beginning of his great Summa on the Decretum (c. 1190): Note that not all the examples of ius naturale given here refer to the same meaning of ius naturale; therefore a prudent reader will carefully discern 60. Dist. 8 dictum ante c.l, "Nam iure naturali omnia sunt communia omnibus. . . . lure vero consuetudinis vel constitutionis hoc meum est, illud alterius." 61. Dist.8 dictum post c.l, "Quaecunque enim vel moribus recepta sunt, vel scriptis com­ prehensa, si naturali iure fuerint adversa, vana et irrita habenda sunt." 62. Very few of the twelfth century commentaries on the Decretum have been edited. However, many particular passages relating to natural law have been printed in modem works.Some important texts were included in S. Kuttner's seminal Repertorium der Kanon­ istik, 11 40-1234 (Vatican City, 1937). Others were collected by 0. Lottin, Le droit nature/ chez Saint Thomas et ses predecesseurs, 2nd ed. (Bruges, 1931). The most ample collection of texts is provided by R. Weigand, Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Ac­ cursius und von Gratian bis Johannes Teutonicus (Munich, 1967).But the authors interested in canonistic doctrines on natural law have not considered the importance of their texts for later theories of natural rights. Lottin observed (97), "Or, on ne voit nulle part ce demier sense subjectif (du terme ius) dans la litterature du XIIe et du XIIIe siecle" (though his own texts hardly support this conclusion). In the following discussion I have taken some texts from Weigand. Where I have used my own manuscript transcriptions and Weigand provides a similar transcription from another source, or a partial transcription, I have given a cross­ reference to Naturrechtslehre. (Weigand sometimes omits phrases which are significant for our argument.)

ORJGINS OF NATURAL RIGHTS LANGUAGE

61

which ext�ple refers to which meaning. But lest the mind of some idiot be confused we shall carefully assign each one. . . . 63

And he proceeded to do so. Already by 1160 Stephanus had found five meanings for ius naturale and, a little later, an English canonist gave nine, ranging from "the order and instinct of nature" to an impenetrable meta­ physical definition. "Others have said that natural ius is an extrapre­ dicamental something including both the mode of existing as essence and as being." 64 In reading these texts one encounters a persistently re­ curring problem. Gratian himself used the word ius consistently to desig­ nate systems of objective law in the opening chapters of the Decretum-€.g. he considered in turn natural law, customary law, civil law, military law, public law as different species of ius; but the canonists who commented on his texts lived in a world where, in everyday discourse, the word ius com­ monly meant a subjective right. Hence, in their commentaries, they would shift from one meaning to the other, unreflectively it seems, and without seeing any need for explanation, evidently confident that their meaning would be plain to contemporary readers. Thus, where Gratian discussed customary law as a form of ius, the Ordinary Gloss commented that a cus­ tom was not established by repeated usage unless there was actually an intention to establish it, and then added, casually introducing the subjec­ tive meaning of ius, that this was true even when a person acted by virtue of his right (iure suo). 65 Another example occurs at the very first chapter of the Decretum (Dist. l.c.l) where Isidore distinguished between divine natural law (fas) and human law. The natural law defined in Gratian's own opening dictum as the Golden Rule was clearly a precept, a divine command. But fas has rather the sense of what is permissible or allow­ able or rightful, and this meaning was suggested by Isidore's example, "To pass through another 's field." The Ordinary Gloss, commenting on this, used the word ius to mean both a body of law and what was permitted by law-what we might call a right. "It is permitted by divine law (iure divino), nevertheless it is not a right (ius) because it is not permitted by human law (iure humano)." 66 For us the concepts of objective law and sub63. Summa ad Dist. 1 c.6, MS Admont 7, fol. 3vb, "Et nota quod non omnia exempla iuris naturalis hie posita referuntur ad eandem acceptionem iuris naturalis. Ergo prudentis lec­ toris erit caute discernere quod exemplum ad quam acceptionem iuris naturalis refera­ tur. Sed ne ydiote animus in hoc confundatur, de quolibet diligenter assignabimus" (Cf. Weigand, 214). Earlier, in his introductory remarks (MS Admont 7, fol. 2va), Huguccio wrote, "His bene intellectis facile erit aptare sequentia contraria iuris naturalis, scilicet que ad quas acceptiones pertineant et referuntur." For the comment of Ricardus see Weigand, 393. 64. Naturrechtslehre, 148, 203, "Alli dixerunt ius naturale esse quiddam extra predica­ mentale habentem· simul modum existendi per se ut essentiabile res et ens." 65. Gloss ad Dist. 1 c.5, " . . . etiam si suo iure id faceret . . . " 66. Gloss ad Dist. 1 c.l, " . . . fas est, id est iure divino permittitur, ilis autem non est, id est non permittitur iure humano." Later on, when Hostensis wanted to refer to a right derived

62

THE IDEA OF NATURAL RIGHTS

jective right are clearly distinguishable, but in medieval discourse the word ius could oscillate easily between the two meanings. It is the same when we turn to the multiple meanings of the term ius naturale, presented in the Decretist glosses. The everyday use of ius to mean a right, a rightful power, infected the language of the canonists when they came to write of ius naturale. They occasionally gave a Stoic interpre­ tation of the term as meaning a force pervading the whole cosmos; usually they included Gratian's view that ius naturale was a code of moral law revealed through scripture and also accessible to reason; but often they added a subjective definition of the term that was not evidently present in Gratian's texts at all. Aparticularly influential discussion was presented by Rufinus, writ­ ing about 1160. Like many later natural rights theorists, Rufinus first described a primitive condition of humankind after the Fall of Adam. Men then were reduced almost to the status of brute beasts, but they retained just enough traces of natural right 67 to come together in order to enter into compacts with one another and so establish the first body of law. Then Rufinus went on to offer his own definition of ius naturale. It was quite dif­ ferent from the original definition of Gratian that he was supposed to be commenting on. Natural ius is a certain force instilled in every human creature by nature to do good and avoid the opposite. Natural ius consists in three things, commands, prohibitions and demonstrations . . . . It cannot be detracted from at all as regards the commands and prohibitions . . . but it can be as regards the demonstrations, which nature does not command or forbid but shows to be good, and this is especially so as regards the liberty of all and common property, for nowadays, by civil law, this slave is mine, this field is mine. 68

from civil law, he wrote, • • ius de iure civile proveniens" (Lecture ad X.1 .2.7). In the same passage he referred to a " ... ius quod omnibus competit de iure naturali . . . " The word glides from one meaning to another in a single terse phrase. I have often retained the Latin word ius in the English text above because frequently the sense cannot be rendered ade­ quately either by "right" or "law." 67. Or "natural force." Some manuscripts have ius here and some vis. Since Rufinus went on at once to define ius naturale as a vis he could easily have written either word. See H. Singer, ed., Die Summa Decretorum des Magister Rufinus (Paderbom, 1902), 4, "Cum itaque naturalis vis (ius) in homine penitus extincta non esset . .. deliberavit homo cum proximis convenire et mutuis utilitatibus consulere . . . et certas pactiones inire que quidem ius gentium appellantur." The doctrine of Rufinus is considered more fully in my "Ius and Metonymy in Rufinus," in R. Castillo Lara, ed., Studia in honorem eminentissimi Cardinalis Alphonsi M. Stickler (Rome, 1992), 549-58. 68. Ibid., 6-7."Est itaque naturale ius vis quedam humane creature a nature insita ad fa­ ciendurn bonum cavendumque contrarium.Consistit autem ius naturale in tribus, scilicet: 11 •

ORIGINS OF NATURAL RIGHTS LANGUAGE

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Rufinus used'· the word demonstrationes to mean descriptions," "indi­ cations," of behavior that was licit but not required.So in one of its mean­ ings ius naturale referred to an area of permitted behavior where "na­ ture does not command or forbid." The explanation that community of property belonged only to the "demonstrations" of natural law (which could be changed by civil law) was widely accepted. But both parts of the argument were very important, the initial subjective definition of ius and the following tripartite division. We shall need to consider each in tum. "Natural ius is a certain force. . . ." We do not know the precise source of this formula if there is an earlier source (though, obviously, one is reminded of Cicero's innata vis). But, whatever the source, the definition had a great success, and it was taken up and reformulated, with frequent variations of language, by many later canonists. Odo of Dover (c. 1170) wrote, closely following Rufinus: II

More strictly, natural ius is a certain force divinely inspired in man by which he is led to what is right and equitable. 69

For Simon of Bisignano: Natural ius is said to be a force of the mind the superior part of the soul, namely reason which is called sinderesis.70

For Sicardus: Ius is called natural . . . from human nature, that is a certain force or power naturally instilled in man. . . . 71

mandatis, prohibitionibus, demonstrationibus. . . . Detractum autem ei non est utique in mandatis vel prohibitionibus . . . sed in demonstrationibus-que scilicet natura non vetat non prohibet, sed bona esse ostendit-et maxime in omnium una libertate et communi possessione; nunc enim iure civili hie est servus meus, ille est ager tuus." On acquisition of property and natural law, see the texts collected by Weigand, 307-361 . Underlying much of the argumentation was the Roman law doctrine that, according to natural reason, dominium was acquired by the first occupant of a res nullius. For further background see Janet Cole­ man, "Property and Poverty" in J. H. Burns, ed., The Cambridge History of Medieval Political Thought (Cambridge, 1988), 607-648. 69. Weigand, Naturrechtslehre, 161. "In tertia significatione et strictiori dicitur ius naturale uis quedam diuinitus homini inspirata qua ad id quod iustum est et equum ducitur." 70. Ibid., 173, "Cum autem ius naturale dicatur esse uis mentis . . . Nobis itaque uidetur quod ius naturale est superior pars anime, ipsa uidelicet ratio, que sinderesis appellatur . . . " For other texts identifying ius naturale as sinderesis see Weigand, 177, 187. 71. Ibid., 184, "Nam ius naturale dicitur . . . ab humana natura, hoc est quedam uis et potentia homini naturaliter insita ad faciendum bonum et uitandum contrarium."

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THE IDEA OF NATURAL RIGHTS

Ricardus Anglicus explained: Some say that natural ius is free will . . . Others say that it is charity . . . others say that natural ius is the superior part of the soul, namely rea­ son . . . . We reject none of these.72

Richard Tuck suggested that Gerson was the first to define ius as an ability or faculty; but this language too occurs in the twelfth-century glosses. Ac­ cording to the English Summa, In nomine: Natural ius is a certain ability by which man is able to discern between good and evil, and in this sense natural ius is a faculty . . . and this is free will.73

So far, of course, we are not dealing with any overt theory of natural rights; but it may already be evident that the subjective understanding of ius that Gerson took as the starting point of his rights theory, "a faculty or power in accordance with right reason," associated with free choice and syndere­ sis, was no novelty of late medieval theology; it had already found ample expression in the glosses on the Decretum two centuries earlier. Many Decretists included a definition of ius naturale as a kind of sub­ jective force or power inherent in human personality, along with many other definitions. But the greatest of them all, Huguccio, was unusual in insisting that this was the one primary and proper meaning of the term. According to his definition, "natural ius is called reason, namely a natural force of the soul. . . . " Huguccio added that, in a second sense, the term could be used to refer to the moral laws known through reason, which could be summed up in the scriptural rule "Do not do to others what you do not want done to yourself."74 All this seems conventional enough. Huguccio was apparently just following Gratian. But then the argument took a sudden turn. Huguccio declared sharply that this second mean­ ing-Gratian's own meaning-expressed an improper understanding of ius naturale. We ought to say that moral precepts are effects of natural ius or that they derive from natural ius rather than that they are natural ius. 75 72. Ibid., 212, "Dicunt enim quidam quod ius naturale sit liberum arbitrium . . . Alii dicunt quod sit caritas . . . Alii dicunt quod ius naturale est superior pars anime, ratio scilicet . . . Nullorum sententiam reprobamus." 73. Kuttner, Repertorium, 202, "Quarto modo dicitur ius naturale habilitas quedam qua homo statim est habilis ad discernendum inter bonum et malum: et secundum hoc dicitur ius naturale facultas-hoc est liberum arbitrium." Kuttner printed parallel passages from two other related works which also described ius naturale as a faculty or ability (cf. Weigand, 197). See Tuck, Natural Rights, 26, and my "Tuck on Rights," 438. 74. Ms. Admont 7, fol. 2rb (Introduction), "lus ergo naturale dicitur ratio, scilicet natu­ ralis uis animi ex qua homo discernit inter bonum et malum . . . Dicitur etiam secundo loco ius naturale iudicium rationis . . . et ut breuiter dicam, nolle aliis facere quod tibi non uis fieri . . . " (cf. Weigand, 215-216). 75. "Sed in hac acceptione improprie dicitur ius naturale cum quodlibet talium qualia diximus contineri in hoc acceptione potius sit effectus iuris naturalis uel ab ea descendat uel ad ipsum ex iure naturali teneatur quis quam sit ius naturale" (fol. 2rb).

ORIGINS OF NATURAL RIGHTS LANGUAGE

65

f

Huguccio dfc not maintain a consistent distinction here between ius and lex; like his contemporaries he sometimes used the terms interchange­ ably.76 But he was distinguishing clearly between a subjective and an objective sense of the term ius naturale and asserting that the subjective sense was the primary one. Moreover he was insistent about this. On Gra­ tian's view of ius naturale as what was contained in the Old Law and the Gospel, he wrote, "If audacity be granted, I will safely say that this is improperly called ius naturale." 77 Huguccio made the same point when he discussed the varied content of ius naturale in the text of Isidore at Dist. 1 c.7. In modern discourse some of the items listed by Isidore would be regarded as rules of natural law ("the return of money loaned") while others seem more like examples of natural rights ("the repulsion of force by force"). Huguccio commented on this text, "The things set out here are not natural ius or natural iura but each is an effect of ius naturale or derives from it."78 Instances of natural law or natural rights were both, according to Huguccio, effects of ius naturale understood in a more funda­ mental sense. In his more lenient moods, Huguccio did acknowledge that ius naturale could mean a rule of conduct, a "judgment of reason"; but this was a secondary, derivative meaning. For Huguccio, ius naturale in its primary sense was always an attribute of individual persons, "a force of the soul," associated with human rationality. In reading the language of the twelfth-century canonists or Ger­ son' s later adaptations of it, one is often reminded of the Stoic doctrine of a natural law in man. But a decisive shift of meaning and emphasis oc­ curred in the twelfth century. For some of the Stoics and for Cicero there was a force in man through which he could discern ius naturale, the objec­ tive natural law that pervaded the whole universe; but for the canonists ius naturale itself could be defined as a subjective force or faculty or power or ability inherent in human persons. Although such definitions do not in themselves express a doctrine of natural rights, once the term ius natu­ rale was clearly defined in this subjective sense the argument could easily move in either direction, to specify natural laws that had to be obeyed or natural rights that could licitly be exercised; and canonistic argument soon did move in both directions. Stoic authors, when they wrote of ius 76. As noted above, this was also typical of seventeenth-century usage (above n. 28). Moreover Hobbes's attempt at "linguistic legislation" did not succeed. Ius continued to have both meanings as long as works on law or political theory were w ritten in Latin. It is the same with Gerson. Although he distinguished between ius and lex when giving formal defi­ nitions he often used the w ords interchangeably in other contexts. 77. "Unde, si audatia detur, dico uerbum secure, quod hoc ius improprie dicitur natu­ rale . . . . " (fol. 2rb). 78. Summa ad Dist. l c.6, MS Admont 7, fol. 3va, "Nam ea que hie ponuntur non sunt ius naturale uel iura naturalia. . . . Sed quodlibet tale est effectus iuris naturalis uel ab eo de­ scendit. . . . " (cf. Weigand, 219).

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naturale, were thinking mainly in terms of cosmic determinism; the canon­ ists were thinking more in terms of human free choice. When the con­ cept of ius naturale was associated in the canonists' glosses with words like "power," "faculty," "free will," it was moving in a different semantic field of force so to speak, and took on new meanings. Stoic reflection on ius naturale never led to a doctrine of natural rights; canonistic reflection did so, and quickly. To carry the argument further, we need to recall the common modem view that to have a right is to enjoy a sphere of personal liberty, a "zone of autonomy," an area of licit choice where the right holder is free to act as he pleases. Alongside the definitions we have considered so far of ius as a subjective moral force or power inhering in individuals, we also encounter this precise understanding of ius naturale in some of the twelfth-century glosses. The authors commonly took as a starting point the second part of Rufinus' definition, that we have not explored so far, the tripartite division of natural law into commands, prohibitions, and demonstrationes. Often the "demonstrations" were taken to be descriptions of a primeval state of affairs-the "state of nature" familiar in many later natural law theories-which had been superseded by the later develop­ ment of human law and government. Alanus even wrote, "Positive law is always preferred to natural law," but he meant only natural law in this latter sense. 79 Sometimes, however, the third kind of natural ius, corre­ sponding to Rufinus' "demonstrations," was taken to be a permanently existing feature of the law (or right) of nature, a kind of natural ius that defined an area of permissiveness where rights could licitly be exercised, rather than a body of restrictive law. The Summa, Inperatorie maiestate posed the standard problem that, according to Gratian's texts, private property instituted by human law seemed contrary to natural law. The author explained that natural law consisted of "precepts, prohibitions, counsels and permissions"; since private property did not fall under the "prohibitions" of natural law its introduction was licit. This led on to a consideration of property as a natural right. The author noted that ius naturale was sometimes identified with ius gentium, which also permitted acquisition of property. He con­ cluded, "The law of nature (ius nature) is called the law of nations (ius gentium) because, by dictate of nature rather than by command of a statute (lex), one has his right (ius)."80 The oscillation between ius as meaning ob­ jective law and ius as meaning subjective right which we noted earlier in

79. Weigand, 318. 80. Ibid., 165, "lus enim nature dicitur ius gentium quia de natura dictante, non de lege precipiente potius habet ius suum."

ORIGINS OF NATURAL RIGHTS LANGUAGE

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the Ordinar}i''czoss occurs here in the specific context of natural law and natural right. Other early glossators of the Bolognese school defined natural ius as conduct that was "licit and approved." But the clearest use of such language to specify "a zone of human autonomy," "a neutral sphere of personal choice," is found in a group of English glossators of the 1180s who wove together in a new synthesis the idea of a permissive natu­ ral ius, Isidore's definition of fas at the beginning of the Decretum, and Paul's words to the Corinthians, "All things are licit for me." The author of the Summa, In nomine, who defined ius naturale in one sense as a fac­ ulty or ability, gave as another meaning of the term: Ius naturale . . . licit and approved, neither commanded nor forbidden by the Lord or by any statute, which is also called fas, as for instance to reclaim one's own or not to reclaim it, to eat something or not to eat it, to put away an unfaithful wife or not to put her away . . . whence, upon the words of the Apostle, 11All things are licit for me," Ambrose com­ mented, "by the law of nature" (lege nature).8 1

(Later on, Gerson would declare that the word facultas was particularly appropriate to define right in his subjective sense because [he thought] facultas was derived from fas.) The idea of natural right as a sphere of free choice was emphasized in an­ other English gloss: Ius naturale . . . licit and approved though not commanded or prohibited by any statute, as to go through another 's field or not to go, which is called fas; to eat or not to eat, concerning which Paul said, when he spoke of the use of foodstuffs . . . "All things are licit for me"; all things, he said, which concern food are licit by the power of free choice and by natural law (lege naturali). 82

81. Kuttner, Repertorium, 202, "Secundo modo dicitur ius naturale licitum et approbatum quod nee a Domino nee constitutione aliqua precepitur prohibiturve, quod et fas appellatur, ut repetere suum vel non repetere, comedere vel non comedere, dimittere uxorem infidelem cohabitare volentem vel non dimittere . . . . Uncle (super) illud Apostoli 'omnia mihi licent' Ambrosius: lege nature." The idea that lex could be permissive was ancient: see Digest 1.4.3 and Dist 3 c.4 of the Decretum. The interesting twelfth-century development was the associ­ ation of this principle with a doctrine of natural right. 82. Distinctiones Bambergensis, MS Bamberg Can 17, fol. 94ra, "Ius naturale . . . quod licitum est et approbatum, quamuis nulla constitutione sit preceptum nee prohibitum veluti per agrum alienuin ire vel non ire quod fas dicitur, commedere non commedere, de quo apostolus Paulus cum de usu ciborum loqueretur ut de idolatria dixit 'omnia mihi licent,' omnia dixit que ad cibum pertinent licent potestate liberi arbitrii et lege naturali" (cf. Wei­ gand, 205).

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This understanding of natural right, which is also found in other contem­ porary English works, 83 became broadly diffused when it was incorpo­ rated into the widely read Summa of Huguccio. 84 The association of ius naturale with Paul's text in 1 Corinthians broad­ ened the apostolic teaching on Christian exemption from Jewish cere­ monial precepts into a more generalized doctrine of natural liberties. (The same argument will recur in Ockhams' natural rights theory.) It was not that Christianity first conferred rights on its followers; rather, by not im­ posing the restrictions of the Old Law it left them free to exercise their pre-existing natural rights. In the texts we have just quoted ius naturale plainly does not mean restrictive law; the term is used to mean what we should call a natural right-to eat what one chooses for instance. The right of nature in these texts is what is permitted by the law of nature. In discussing modem rights language, Hart explained that a right de­ fines an area where the agent is free to act as he chooses, to assert a claim or not to assert it. The canonists were making the same point-for them ius naturale could mean "to reclaim one's own or not to reclaim it." Christian Wolff wrote, "The law (lex) of nature is called preceptive which obliges us to perform certain actions; it is called prohibitive when it obliges us to omit certain actions; it is called permissive when it gives a right to act." We find this same doctrine expressed in very much the same language, scattered through the Decretist glosses of the twelfth century. Wolff added, "What we have a right (ius) to do is called 'licit'." 85 This again echoes a common canonistic definition of ius naturale. Michel Villey, describing the doctrine of individual rights which, he thought, could be formulated only after Ockham, wrote that such rights implied "a quality of the subject, one of his faculties, a liberty, a possibility of acting." 86 This too was affirmed by the twelfth century canonists as one of the many meanings of ius naturale. In the period of transition from medieval to modem thought during the sixteenth century, both definitions of ius, as a zone of human auton­ omy or sphere of licit conduct, and as a faculty or power of the individual, were drawn together in the very influential work of Francisco Vitoria, a principal founder of the school of Salamanca. 83. See Kuttner, Repertorium, 202 and Weigand, 209. Also Ricardus Anglicus, Summa quaestionum, MS Zwettl 162, fol. 145r. "Secundo modo licitum dicitur et approbatum nulla

constitutione preceptum uel prohibitum. Unde Ambrosius 'omnia mihi licent' lege nature, et Augustinus alibi, licent que non precipiuntur nee prohibentur" (cf. Weigand, 213). 84. Huguccio gave the meaning licitum et approbatum, with the usual references to Paul and Ambrose, as a possible fifth definition of ius naturale. He preferred his own primary defi­ nition, discussed above. See Weigand, 217. 85. Institutiones, 22, 23, "Lex naturae . . . permissive, quae jus dat ad agendum," " . . .ad quad agendum tantummodo jus habemus, Licitum dicitur." 86. "La genese du droit subjectif chez Guillaume d'Occam," Archives de philosophie du droit 9 (1964): 97-127, at 101.

ORIGINS OF NATURAL RIGHTS LANGUAGE

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Vitoria, ho�ever, seems to have been unaware of the earlier origin of the doctrines that he had assimilated during his preceding years of study in Paris: Ius therefore . . . is nothing else than what is licit or what is licit by law. . . . This is plain from Saint Thomas on 2.2ae q.57 art 1. . . . And so we use the word when we speak. For we say, "I do not have a right (ius) of doing this," that is, it is not licit for me; or again, "I use my right," that is, it is licit. Conrad (Summenhart) gives a broader definition of the word ius . . . . He says that ius is a power or faculty pertaining to anyone according to the laws-Conrad takes this definition from Gerson.87

Vitoria correctly ascribed the definition of ius as a facultas to Gerson (though, as we have seen, it was not original with him). But the attribution of a definition of ius as a subjective right to Aquinas was quite mistaken; Aquinas taught no such doctrine. Vitoria, steeped in a scholastic tradition that had been shaped by juristic as well as by theological reflection, and concerned with the new rights problems of his own age, including those arising from the discovery of America, creatively reinterpreted St. Thomas, just as the canonists of the twelfth century, steeped in the problems and preconceptions of their own society, reinterpreted the ancient texts col­ lected by Gratian. In their different ways, both Vitoria and the Decretists were engaged in "noncanonical readings of canonical texts." NEED AND NATURA L RIGHT

By 1200 the canonists had created a language in which natural rights theories could readily be expressed. Their "speech acts" did not merely modify existing language; they would lead on to "the creation and dif­ fusion of new languages." But one might still ask whether the canon­ ists themselves defended any specific natural rights. Had they developed only a vocabulary of words or also a vocabulary of ideas that would per­ sist in later discourse? So far we have considered only isolated definitions of ius naturale, only paroles one might say. To answer our question we should need to consider the whole langue, the whole context of discourse, 87. R. P. Vicente Beltran de Heredia, ed., Francisco de Vitoria, Commentaria a la secunda se­ cundae de Santo Tomas, 6 vols. (Salamanca, 1932-52), 3:64, "Jus ergo . . . nihil aliud est nisi illud quod licet vel quod lege licet. . . . Patet hoc ex sancto Thoma supra q.57 a.1 . . . Et ita nos utimur illud vocabulum cum loquimur. Dicimus enim: non habeo ius faciendi hoc, id est non mihi licet; item, jure meo utor, id est licet, Conradus . . . ponit late diffinitionem illius nominis 'jus' . . . . Dicit ergo quod jus est potestas vel facultas conveniens alicui secundum leges . . . . Hane diffinitionem accepit Conradus ex Gersone. . . . " For a detailed consideration of Vito­ ria's use of Aquinas see below, 256-65.

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in which the words were embedded, and the ways in which it was trans­ mitted to later thinkers. If we tried to trace out all the threads that led from the web of medieval rights language to the fully formed natural rights theories of the seventeenth century we should have to explore many areas of discourse in which, by about 1300, particular rights were defended in terms of natural law. They would include rights to property, rights of consent to government, rights of self-defense, rights of infidels, marriage rights, procedural rights. (From the thirteenth century onward, Roman and canon lawyers argued that the basic rules of legal procedure guaranteeing a fair trial were based on the natural right of self-defense, not merely on human enactments.) Another major theme would be the respective rights of individual and community within corporate groups, a topic long ago touched on by Maitland. Such an inquiry would re­ mind us that the first rights theories were not derived from contempla­ tion of the individual isolated from his fellows-isole sur son ile comme Robinson88-but from reflection on the right ordering of human relation­ ships in emerging societies. A full consideration of all these topics would go beyond the scope of our present discussion. I would like therefore to consider just one ex­ ample, concerned with the most fundamental right of all, the right of self­ preservation, specifically the right of the poor to use the surplus property of the rich to sustain life in cases of extreme need. In this case one can trace a clear line of argument concerning a specific natural right from the twelfth century to the seventeenth. Among the Church Fathers there was some discussion as to whether almsgiving was a work of justice or a work of charity; 89 but the twelfth­ century canonists had no doubt that strict justice required a rich man to share at least his superfluities with those in need. The Decretum contained some striking texts on this obligation: "Feed the poor. If you do not feed them you kill them." "A man who keeps more for himself than he needs is guilty of theft." "The use of all things that are in the world ought to be common to all." "No one may call his own what is common, of which if he takes more than he needs, it is obtained by violence. . . . The bread that you hold back belongs to the needy, the clothes that you store away belong to the naked."90 Such texts indicate plainly that the rich were considered to have a duty to the poor; but, as we have seen, for modern rights theorists, to be 88. The phrase is from J. Dabin, "Droit subjectif et subjectivisme juridique," Archives de philosophie du droit 9 (1964): 17-35, at 20. T he problem of individual and community in rela­ tion to rights theories is discussed in the chapter below on Gerson. 89. For detailed discussion, with references to the earlier literature, see G. Couvreur, Les pauvres. Ont-ils des droits? (Paris, 1961). 90. Dist.86 c.21, Dist.42 ante c.1, C.12 q.l c.2, Dist. 47 c.8.

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the beneficiary of a duty is not necessarily the same thing as having a right. Medieval canonists understood this point too.A bishop might have a duty to grant a dispensation when circumstances warranted it, they pointed out, but the petitioner did not have a right to insist on the grant. One of the twelfth-century Decretists, distinguishing between duties and rights in a discussion on the claims of the poor, used precisely the ex­ ample of a third-party beneficiary employed in Hart's modern argument. "If I promise you to give something to someone else I am bound to give to the third party and I am naturally obliged to him; nevertheless he cannot bring suit.. . ."91 The rich certainly had a natural duty to succor the poor; it was not so clear that the poor had a natural right that could be asserted against the rich. The canonists first approached this question by asking whether a poor man in extreme need who took the goods of a rich one was guilty of the sin of theft.Characteristically, they addressed the problem first by probing the inner state of mind of the agent. Theft, by definition, required the taking of something from an unwilling owner. So the poor person would not be guilty of theft, Huguccio suggested, because "he believes or should believe" that the owner would give him permission to take what was needed. 92 Couvreur maintained that, with this argument, Huguccio "mag­ isterially concluded from the duty of the rich to the right of the poor." 93 But it was still a shadowy sort of right, based only on an unprovable hy­ pothesis about the state of mind of the needy person. Huguccio made a greater contribution with a novel argument about the relationship be­ tween common ownership and private property-a persistent, nagging problem for commentators on the first distinctions of the Decretum. So far we have considered the existence of private property in relation to natural law only as a sort of legal conundrum to be solved by juggling the various senses of ius naturale. The usual explanation was that common property was only a "demonstration" of natural law, a primeval state of affairs that had passed away with the introduction of human law or divine positive law (as expressed in Commandments like "Thou shalt not steal," "Thou shalt not covet thy neighbor 's house"). But there was an­ other whole dimension to this problem for medieval moralists. "The use of all things ought to be common to all." "No one may call his own what 91. Summa Bambergensis ad Dist. 47 c.8 (Couvreur, 109), "Nam et si stipulor tibi me datu­ rum X alii, teneor quidem dare tertio et naturaliter obligor illi. Tamen ille non potest agere ad illa X . . . " 92. Summa ad C.12 q.2 c.11, MS Admont 7, fol. 243ra, "Ego tamen credo quod non peccet quis in tali casu, scilicet cum utitur re alterius propter urgentem necessitatem . . quia aut credit aut debet credere dominu_in esse perrnissurum . . . quo casu furtum non com­ rnittitur." 93. Les pauvres, 91.

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is common." These texts, attributed by Gratian to St. Clement and St. Am­ brose, spoke as if common property was a permanent feature of Christian society, informing it with charity and justice. There seemed an inherent conflict between the ideal held up by the Fathers and the realities of me­ dieval life. Huguccio was particularly unhappy with the idea of a natural law that could simply become obsolete, with no continuing relevance to the social and moral problems of his own age. Such a doctrine did not fit well with his own preferred definition of ius as an intrinsic, permanent force of reason or moral discernment in the human soul. At one point he wrote, "If you want to insist on the common explanation you may say that common possession of all things is from the natural law . . . that con­ sists in demonstrations."94 But Huguccio did not think this was the real explanation. He preferred a new formulation of his own which he set out at the beginning of his Summa and reiterated several times in the course of the work: When it is said that by natural ius all things are common . . . this is the meaning. By natural ius, that is in accordance with the judgment of reason, all things are common, that is they are to be shared with the poor in time of need. For reason naturally leads us to suppose that we should keep only what is necessary and distribute what is left to the needy. 95

"Communis . . . id est communicanda." "Common . . . that is to be shared." The words were endlessly repeated in later discussions. In this way of thinking, private property was itself a social institution involving obligations to others. Property could and should be private and common at the same time; private in the sense that ownership and administration belonged to the individuals, common in the sense that worldly goods had 94. Summa ad D.1 c.7, MS Admont 7, fol.4ra, "Vel si vellis communi expositioni insistere, dices, communis omnium possessio, id est quod omnia sint communia id est de iure naturali, eo scilicet quod licitum siue fas appellatur, scilicet quod consistit in demonstrationibus. . .." 95. Summa (Introduction), MS Admont 7, fol. 2va, "Cum dicitur iure naturali omnia sunt communia .. .is est sensus . . . iure naturali, id est iudicio rationis approbante omnia sunt communia, id est tempore necessitatis indigentibus communicanda. Naturali enim ductu rationis approbamus nobis tantum necessaria retinere, reliqua proximis indigentibus debere distribuere . ..." See also Summa ad Dist. 1 c.7, fol. 3ra, "Communis possessio omnium, id est communicatio omnium que possidemus tempore necessitatis, hoc de iure naturali quod dicitur ratio...." This doctrine of Huguccio, and its incorporation into the Ordinary Gloss of the Decretum was discussed in my Medieval Poor Law (Berkeley and Los Angeles, 1959). A little later Couvreur returned to the topic and printed a wealth of texts illustrating the wide diffusion of Huguccio's teaching. See Les pauvres, 91-106, 141-154 and, for an extensive selection of Huguccio's texts, 290-296.

ORIGINS OF NATURAL RIGHTS LANGUAGE /"

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.

to be shared with others in time of need.96 And here again, as in Huguccio's initial definition of ius, the argument was based on an appeal to reason, not specifically to scripture. Huguccio did not himself use this doctrine to assert a natural right of the poor to the superfluous property of the rich, but its relevance to the issue was perceived almost at once. Ricardus Anglicus, again discuss­ ing the case of a poor person in extreme need, wrote in the 1190s, "Since by natural ius all things are common, that is to be shared in time of need, he is not properly said to steal." 97 From this it was only a step to affirm­ ing explicitly the natural right of the poor. Around 1200 Alanus held that the poor man did not steal because what he took was really his own iure naturali-which could mean either "by natural right" or "by natural law." 98 About the same time another glossator suggested that the person in need could "declare his right for himself."99 Then Laurentius, followed by Vincentius Hispanus, wrote that, when the poor man took what he needed, it was "as if he used his own right and his own thing." 10° Finally, the doctrine entered the mainstream of medieval jurisprudence when Hostiensis reformulated it more sharply and included it in his very widely read Lectura on the Decretals. "One who suffers the need of hunger seems to use his right rather than to plan a theft." 101 And, of course, it was a natural right that was being discussed. 96. Summa ad Dist. 47 c.8, MS Admont 7, fol. 65 ra, "Quod est commune, id est tempore necessitatis aliis communicandum.. .. Et secundum hoc idem est proprium et commune, proprium quoad dominium uel potestatem dispensandi, commune quia aliis commnican­ dum tempore necessitatis." 97. Gloss ad Comp. I, 5.26.5 (Couvreur, 92 n. 248), "Nam cum iure naturali omnia sunt communia id est tempore necessitatis communicanda non dicitur proprie furari sed pretoris altissimi fungi. . . . " Ricardus was followed by many other canonists. See Couvreur, 92-94. 98. Gloss ad Comp. I, 5.26.5 (Couvreur, 161 n. 280), ". . . quod accipit suum iure naturali efficitur." 99. App. Militant siquidem ad Comp. I, 5.26.5 (Couvreur, 118 n. 349), ". . . in tali articulo potest sibi ius dicere sicut et creditor si videat debitorem suum a civitate fugere . . . " 100. Vincentius ad Comp. I, 5.26.5 (Couvreur, 102), "Hie res ista quam dicebat furari est communis, id est communicanda in tali articulo erat, et ideo iste earn accipiendo quasi iure suo et re sua utebatur." 101. Hostiensis, Lectura in V libros Decretalium (Venice, 1581) ad X.5.18.3, "Unde potius videtur is qui necessitatem patitur uti iure suo quam furti consilium inire." The text was later included in Johannes Andreae's In quinque Decretalium libros novella commentaria (Venice, 1601), ad X. 5.18.3. Discussing the rights theories of a later age, Knud Haakonssen wrote that, for Grotius, "a right is not only a claim in the interest of self-preservation, but the mental power (right reason) to make such a claim rationally, which means the power to judge one's own claim vis-a-vis the claims of others." One finds the same attitude in the canonists who stood near the beginning of the medieval tradition that Grotius would inherit. See M. T. Lacey and K. Haakonssen, eds., A Culture ofRights (Cambridge, 1991), 25.

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In modern rights language, we have seen, a right can be defined in one sense as a "rightful power." This is essentially what the canonists were as­ serting for the person in want. If he used his own efforts to take what he needed from the superfluities of the rich he was acting rightfully in the sense that he was not guilty of sin in the eyes of God. But the situation was not wholly satisfactory from the point of view of the person in want; the secular judge would probably hang him. We need to consider therefore whether the poor man also had a "rightful claim." If he did not want to risk punishment for theft, could he only appeal to the "love or piety or mercy" of the rich (to use Feinberg's modern language) or could he some­ how demand, claim, insist upon his right? Huguccio doubted that he could. The problem was that none of the established forms of legal action covered this kind of case. Certainly the superfluities of the rich were owed to the poor, Huguccio wrote, but then he added, "Many things are owed that cannot be sought by judicial procedure, such as dignities and dis­ pensations and alms . . . but they can be sought as something due mer­ cifully for the sake of God and piety." 102 This opinion did not prevail however. Alongside the formal judicial procedures inherited from Roman law the canonists had developed an alternative, more simple, equitable process known as "evangelical denunciation." By virtue of the authority inhering in his office as judge, a bishop could hear any complaint in­ volving an alleged sin and could provide a remedy without the plaintiff bringing a formal action. From about 1200 onward several canonists ar­ gued that this procedure was available to the poor person in extreme need. He could assert a rightful claim by an "appeal to the office of the judge." The bishop could then compel an intransigent rich man to give alms from his superfluities, by excommunication if necessary. The argu­ ment gained general currency when it was assimilated into the Ordinary Gloss to the Decretum. 103 It was, as Couvreur wrote, an elegant solution. "It provided a judicial sanction for the rights of the poor." These canonistic arguments about the status and claims of needy persons provide an explicit example of an early natural rights theory. Con­ sidered simply as theory, the doctrine was subtle and far-ranging. As with many supposed human rights nowadays, one can envisage serious dif­ ficulties in putting the theory into practice. But, however that may be, the canonists' teaching persisted and, from the thirteenth century onward, it was drawn into theological as well as juristic discussions. Aquinas re­ peated that the poor person who stole in extreme need took what was really his, but without any overt reference to a subjective right of the poor 102. Summa ad Dist. 47 c.8, MS Admont 7, fol. 65ra, "Revera eis debentur, sed multa debentur que tamen peti non possum ordine iudiciario ut dignitates et dispensationes et el­ emosine, sed possunt peti sicut debentur, scilicet misericorditer et intuitu dei et pietatis." 103. Gl. ord. ad Dist. 47 c.8.On this whole question see my Medieval Poor Law, 37-39 and Couvreut, Les pauvres, 108-115.

ORIGINS OF NATURAL RIGHTS LANGUAGE

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person.104 Godfrey of Fontaines, a little later, was quite explicit. The right to the necessities of life was not only a natural right but an inalienable right: By the law of nature (iure naturae) each one has a certain right (ius) in the common exterior goods of this world, which right cannot be licitly re­ nounced. 105 Ockham reformulated the doctrine of the rights of the poor in extreme need with explicit reference to the text of pseudo-Ambrose included in the Decretum, and closely paraphrased Huguccio in discussing it: In another sense temporal things belong to others because they are owed by necessity . . . that is they are owed by right reason. And in this way the superfluities of the rich belong to the poor. . . . So are to be under­ stood the words of Ambrose given at Dist. 47. 106 Gerson wrote of a "right of nourishing the body" and repeated that all things were common in case of necessity. 107 Vitoria restated the canonists' teaching but, again, mistakenly suggested that Aquinas taught a doctrine of subjective rights. "Thomas says that all things are common in extreme necessity. So if they are common I have a right to them."108 Other Spanish scholastics of the school of Salamanca continued the medieval discussions about the rights of the needy and the duties of the wealthy with endless refinements of argument. 109 The right of a poor man to the surplus property of the rich still found a place in Locke's political theory: God, the Lord and Father of all, has given no one of his children such a Property in his peculiar portion of the things of this world, but that 104. Summa theol. 2.2ae.66.7. 105. J. Hoffmans, ed., Le$ Quodlibets onze-quatorze de Godefroid de Fontaines, Les Philosophes Beiges 4 (Louvain, 1924): 105, "Immo etiam propter hoc quod unusquisque tenetur iure natu­ rae vitam suam sustentare . . . ideo etiam iure naturae quilibet habet dominium et quoddam ius in bonis communibus exterioribus huius mundi, cui etiam iuri renuntiare non potest licite." 106. Opus nonaginta dierum, ed. H. S. Offler, Guillelmi de Ockham opera politica, 3 vols. (Manchester, 1956-74), 2:576, "Aliter dicuntur temporalia esse aliquorum ex debiti necessi­ tate . . . quia scilicet eis ex ratione recta debentur. Et isto modo superflua divitum sunt pauperum. . . . Et sic intelligenda sunt verba Ambrosii, quae ponuntur di xlvii Sicut hii. . . . " In other contexts Ockham referred explicitly to the right of the person in need, e.g. Opera 1: 322, "Nam quilibet in extrema necessitate constitutus habet ius utendi re consumptibile, sine qua de hac vita migraret. . . . " 107. Oeuvres, 3: 156, ". . . dicimus titulum naturalem ad quern consequitur jus nutriendi corpus sic quod in ejus necessitate omnia sibi sint ad hoc communia." 108. Commentaria, 3: 340, ". . . Sanctus Thomas dicit quod omnia sunt communia in ex­ trema necessitate. Si ergo sunt communia, habeo jus ad illa." 109. See K. Deuringer, Probleme der Caritas in der Schule von Salamanca (Freiburg im Breis­ gau, 1959).

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THE IDEA OF NATURAL RIGHTS

he has given his Brother a Right to the Surplusage of his Goods; so that it cannot j ustly be denyed him when his pressing Want calls for it. 110 CONCLUSION

When the canonists wrote about reason and free will and syndere­ sis they were not offering any profoundly original reflections on the grounds of human morality. They were simply deploying the familiar psychological language of their own day. The novelty in their works was that they used the language for a juristic purpose, to explain the varied meanings of ius naturale that they encountered in the texts of their great law book, Gratian's Decretum. Many canonists included in their lists of meanings a subjective one that explained ius naturale as a faculty or power inherent in human nature. Then, from this primary meaning, various other meanings, including natural law and natural rights, could be de­ rived by a sort of metonymic association. It seems important that, from the beginning, the subjective idea of natural right was not derived specifi­ cally from Christian revelation or from some all-embracing natural-law theory of cosmic harmony but from an understanding of human nature itself as rational, self-aware, and morally responsible. This understanding endured as the basis of many later natural rights theories, both medieval and modern. The language of the canonists persisted in later political theory, though sometimes the original source of the language was forgotten. It was transmitted mainly in two ways. One way was through the ency­ clopedic works of the late medieval lawyers. They were well known to those of the sixteenth-century Spanish scholastics who were jurists as well as theologians; and these writers in turn often influenced seventeenth­ century rights theories. When Suarez, for instance, chose to formulate his doctrine of rights in terms of ius in re and ius ad rem he was well aware that he was using a long-established technical vocabulary. The other main channel of transmission was through the work of Ockham, for Ockham relied more on earlier canonistic teachings than on his own innovative nominalist philosophy in formulating his theories on property and pov­ erty and natural rights. He in turn influenced a whole school of late me­ dieval theologians, including Gerson. None of the canonists themselves, we have noted, wrote an extended, coherent treatise on natural rights.

110. P. Laslett, ed., John Locke. Two Treatises of Government, 2nd ed. (Cambridge, 1970), 1.42, 188. But Locke also wrote here that the claim of the poor was based on charity rather than justice. His work reflects both the old medieval tradition and the newer attitudes to poverty that were growing up in the seventeenth century.

ORIGINS OF NATURAL RIGHTS LANGUAGE

77

_,,,,.

Paradoxically, the closest thing we have to a "great text" on canonistic po­ litical theory is Ockham's Dialogus. 111 Carlos Fuentes wrote recently: "There is no creation without tradition; the 'new' is an inflection of a preceding form; novelty is always a variation on the past." It is true of course. And yet some variations are of decisive importance for the future. The semantic shifts of the twelfth century were of this kind. The medieval concern for subjective rights in practical every­ day life reshaped the language in which discourse about natural right was conducted.By around 1200 many canonists were coming to realize that the old language of ius naturale could be used to define both a faculty or force of the human person and a "neutral sphere of personal choice," "a zone of human autonomy." But they did not, like some modern critics of rights theories, expect such language to justify a moral universe in which each in­ dividual would ruthlessly pursue his own advantage. Like most of the classical rights theorists down to Locke and Wolff they envisaged a sphere of natural rights bounded by a natural moral law.The first natural rights theories were not based on an apotheosis of simple greed or self-serving egotism; rather they derived from a view of individual human persons as free, endowed with reason, capable of moral discernment, and from a consideration of the ties of justice and charity that bound individuals to one another.

111. On Ockham's use of canonistic sources see my "Ockham, the Conciliar Theory and the Canonists," Journal of the History of Ideas 15 (1954): 40-70. For a more detailed discussion see the chapters on Ockham below. The complex discussions of the Decretists on the origin of a right to property are also considered in more detail in these chapters. See especially 137- 45.

THIREE �

RIGHTS AND DUTIES. A Q UAESTIO OF HENRY OF GHENT

A

modern author has observed that, in the "pre-liberal epoch" be­ fore the seventeenth century, people did not think of individuals "as possessing inalienable rights to anything-much less life, liberty, prop­ erty, or even the pursuit of happiness." 1 The statement is not true, but it is excusable. There has been much less work on medieval ideas concerning natural rights than on the classical theories of the early modern era. 2 Un­ derstandably, therefore, some modern scholars see the seventeenth­ century rights theories as a radical departure from ancient and medieval ways of thought; 3 they are content to explain the ideas of Hobbes and Locke and Pufendorf by reference to some aspect of the intellectual, politi­ cal, or economic life of the seventeenth century itself. 4 C. B. MacPherson, for instance, emphasizing economic factors, inaugurated a minor aca1. A W. Saxonhouse, Women in the History of Political Thought. Ancient Greece to Machia­

velli (New York, 1985), 7.

2. By contrast there is a huge body of writing on other aspects of medieval constitutional thought--counsel and consent, representation, the rule of law, resistance theories, church­ state relations-and it is widely understood that medieval thought in those areas provided a "foundation" for early modern political theory. This is well brought out in the far-ranging survey of Q. Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge, 1978). 3. See, e.g., L. Strauss, Natural Right and History (Chicago, 1950), 165-166. 4. Good bibliographies are provided by A. Garcia, Thomas Hobbes: Bibliographie Interna­ tionale de 1620 a 1986 (Caen, 1986) and J. S. Yolton and J. W. Yolton, John Locke. A Reference Guide (Boston, 1985). For current literature see The Locke Newsletter and "Bulletin Hobbes" in Archives de Philosophic (1985-).

-78 -

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._,;•

demic industry when he interpreted Locke's teaching that everyone has a property right in his own person as a reflection of the possessive individ­ ualism of early modem capitalism. 5 Michel Villey found an earlier origin for individual rights in the work of William of Ockham, but he too held that the understanding of a right as a person's "property" in himself did not emerge until the time of Locke.6 I have already suggested that these approaches are too limited and that an earlier origin of modem natural rights theories is to be found in the great sea of medieval jurisprudence, especially in the canonistic writings of the late twelfth century. Hence, in considering the further development of these doctrines, a major problem is to explain how, in different historical contexts, later medieval writers of various philosophical persuasions as­ similated and adapted the language of the jurists in works of theology and political philosophy. In the following discussion I shall try to make a small contribution to this kind of inquiry by considering a text of Henry of Ghent from the 1280s and its relationship to later natural rights theories. A PRISONER'S

DILEMMA

In discussing the work of the Decretists, I emphasized the concept of natural right as a sphere of personal autonomy, where the right-holder could act as he chose.For one modem school of thought this autonomy or "sovereignty" over one's acts is an essential constituent of any right.7 It has even been argued, on the ground of human autonomy, that a right to life must include a right to commit suicide. 8 But this way of thinking excludes a whole class of rights that were prominent in medieval and early modem thought-rights that were also duties, and that could, accordingly, be re­ garded as inalienable rights. Of these, the prime example is the right of self-preservation; 9 and this was the theme that Henry of Ghent took up in the Quaestio that I want to discuss. 5. C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford, 1962), 3, "Its possessive quality is found in its conception of the individual as essentially the proprietor of his own person .. . . The relation of ownership . . . was read back into the nature of the indi­ vidual." 6. M. Villey, La formation de la pensee juridique moderne, 4th ed. (Paris, 1975), 225-262; idem, Le droit et les droits (Paris, 1983), 147. 7. See e.g.H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review 64 (1955): 175-91. 8. H. J. McCloskey, "The Right to Life," Mind 84 (1975): 403-425. 9. The canonists of course condemned suicide and recognized a natural right of self­ preservation-a right to the necessities of life and a right to defend oneself if attacked. But they discussed such questions in terms of rights rather than duties. An emphasis on the duty of self-preservation arose out of attacks on the Franciscans' claim that they had renounced all rights.

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THE IDEA OF NATURAL RIGHTS

The immediate problem to be considered then is this: Is there an inalienable right to life, that is a right of self-preservation that cannot be re­ nounced and that can be exercised in all circumstances? And, specifically, does a criminal who has been justly condemned to death have a right, or even a duty, to preserve himself by escaping if he can? Or does he have an obligation to accept his just punishment? It is another kind of "prisoner's dilemma." The problem is as old as Socrates, and it found a place in the dis­ cussions of seventeenth-century rights theorists. Locke was ambivalent on the issue. He wrote, famously, that every man had a property in his own person and that property could be defined as "Life, Liberty, and Estate." 10 Humans had a natural right to preserve themselves and a corresponding right to "Meat and Drink" and other basic necessities of life. 11 But, because man was God's creature, he had no right to destroy his own life. Rather he was "bound to preserve himself." 12 Moreover, since he did not have ab­ solute power over his own life he could not concede an absolute power over himself to anyone else. 1 3 (Locke sometimes used the words "power" and "right" indifferently in the manner that Villey traced back to Ock­ ham.14) Even if a man sold himself to a master, which he could do under Jewish law, it was "only to drudgery not to slavery." 1 5 But Locke also wrote in this same context that a criminal could "forfeit" his life and liberty. An unjust aggressor forfeited his life to the injured party; the latter could lic­ itly kill him or hold him as a slave; the relationship between them was "the state of war continued." Clearly the captor had a right over his captive. But, given that there existed a "Fundamental, Sacred and unalterable law of Self-Preservation," 16 did the captive also have a right to escape? Locke did 10. P. Laslett, ed., John Locke. Two Treatises of Government (Cambridge, 1967), 2.27, 305; 2.87, 341. 11. Ibid., 2.25, 303. 12. Ibid., 2.6, 289. It may seem incongruous that the duty of self-preservation should have been associated with ownership of one's own person. In civil law a holder of dominium was at liberty to destroy or alienate his own property. But the law defined liberty itself as a freedom to act as one pleased "unless prohibited by force or law" (Inst. 1 .3.1). Similarly the right of ownership was limited by law. In the later definition of Bartolus, dominium was a right of disposing of a corporeal thing completely unless prohibited by law." And of course, for all medieval and early modern thinkers, self-destruction was prohibited by divine and natural law. 13. Ibid., 2.23, 302, "No body can give more Power than he has himself; and he that cannot take away his own Life cannot give another power over it." At 2. 1 68, 398, Locke wrote that it was "out of a Man's power so to submit himself to another as to give him a lib­ erty to destroy him." 14. Evidently a man had the de facto power to take his own life. Locke meant that he had no rightful power, no right, to do so. 15. Ibid., 2.24, 303. 16. Ibid., 2.149, 385.

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not pursue the'point. 17 Discussing an analogous case, he wrote that a mili­ tary officer could justly send a soldier to almost certain death. 18 But, according to his earlier argument, the soldier could not have alienated his right of self-preservation. It would seem that two sets of rights existed relating to the same person. G. D. Glenn, who discussed this case in con­ sidering Locke's teaching on suicide, concluded that, "A Lockean gov­ ernment has a right to order a citizen to virtually certain death, and a citizen has a right to avoid death at all costs." 19 Hobbes was more explicit and unequivocal in considering the right of a condemned criminal. He too held that a man had a kind of property in his own life and an obligation as well as a right to preserve it. 20 No law could oblige a man to abandon his own preservation; hence if a starving man took food "by force or stealth" he was to be excused. 21 A government had indeed a right of punishing, but a criminal had a right to defend his own life.22 A covenant not to defend a man's own body was void; that was why "they lead criminals to execution, and prison, with armed men." If the sovereign commanded a criminal to kill himself or to abstain from the food needed to sustain life, then even though the criminal was justly condemned, "yet hath that man the liberty to disobey."23 In the De Cive Hobbes explained that the "vindicative" or penal provisions of the law were addressed only to the magistrate; they obliged the magistrate to impose a penalty but did not oblige the criminal to accept it.24 Here again we have a pattern of correlative rights. The sovereign had a right to impose a death sentence; the criminal had a right to preserve his life. Pufendorf reached a similar conclusion. In his view the sovereign possessed a power over the bodies and lives of subjects that was called 17. He wrote only that, if the captive found his servitude too harsh, he had the power to bring about his own death by resisting his master. But what if he resisted successfully? Throughout this passage Locke seems to be responding directly to Grotius. Grotius held that, because a person could enslave himself, therefore a whole people could hand itself over to an absolutist government. But he also discussed explicitly the question that Locke avoided and held that prisoners enslaved after participating in an unjust war did indeed retain a right to escape (De jure belli, 1.3.8 and 3.7.6). 18. Ibid., 2.139, 380. 19. G. D. Glenn, "Inalienable Rights and Locke's Argument for Limited Government: Po­ litical Implications of a Right to Suicide," Journal of Politics 46 (1984): 80-105 at 98. 20. T. Hobbes, Leviathan, 2.30, 223, "Of things held in propriety, those that are dearest to a man are his own life and limbs. . . . "; 1.14, 84. "A Law of Nature, lex naturalis, is a pre­ cept . . . by which a man is forbidden to do that, which is destructive of his life . . . and to omit that by which he thinks it may best be preserved." (Page references are to Oakeshott's edition.) 21. Ibid., 2.27, 197. 22. Ibid., 2.28, 202. 23. Ibid., 1.14, 91-92. 24. H. Warrender, ed., De Cive. The English Version (Oxford, 1983), 14.7, 1 72; 14.23, 182.

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a "right of life and death."25 (Here again "power" and "right" were used indifferently). But Pufendorf also maintained that men have a natural right "to do everything that will lead to their preservation in so far as the right of others is not injured." 26 This self-preservation was, moreover, a duty commanded by the law of nature; a man had no right to destroy himself. 27 Pufendorf considered in considerable detail how this right of self-preservation could be exercised in cases of extreme necessity. If a man were starving, for instance, "immediate necessity may be met by taking [food] through force or stealth." 28 As for the condemned criminal, Pufendorf held that the magistrate had a power over his body that was akin to a property right. "The body and property of a sinner is no less in the power of a magistrate for crimes than is the property of a debtor in that of a creditor for his debts."29 (Elsewhere, discussing property in general he defined it as a right in the "substance" of a thing and explained that the same thing could belong to different persons in different ways-for in­ stance one might own the property, another lease it.)30 But, although the magistrate had a right to condemn a criminal to death and the criminal could not claim that an injury had been done to him when he was pun­ ished, still this did not mean that he was obligated to accept the punish­ ment. 3 1 Rather he could seek to avoid it "by denial, hiding or flight."32 Quoting Hobbes, Pufendorf repeated that the penal clauses of the law were addressed only to the magistrate. They commanded the magistrate to hang a thief; they did not command the thief to go voluntarily to his death. So it was no sin in the thief if he were not hung; it was rather that the mag­ istrate had neglected his duty to the state. 33 The problem of the condemned criminal is, as we have said, an ancient one. Pufendorf indeed quoted the case of Socrates from Plato's Crito in the course of his discussion. What seems distinctively modern in the argu­ ments we have summarized is the emphasis on the rights of individuals, 25. S. Pufendorf, De Jure naturae et gentium libri octo (Amsterdam, 1688), 8.3.1, 791, "Com­ petit quoque summo imperio civili potestas in corpus ac vi tam, ut et bona civium ex causa delicti; quae presse solet vocari jus vitae et necis." 26. Ibid., 2.2.3, 108. 27. Ibid., 2.4.1 6, 176; 2.6.3, 205. 28. Ibid., 2.6.6, 305, "si summa urgeat necessitas . . . extra ordinem adeatur magistra­ tus, aut ubi tempus id non fert, vi aut clanculum erepta re urgens necessitas dispellatur." The reference to an extraordinary appeal to the magistrate echoes the medieval canonistic doc­ trine that those in need could "implore the office of the judge." On this see above, 74. 29. Ibid., 8.3.5, 798-99. 30. Ibid., 4.4.1, 363. 31. Ibid., 8.3.5, 798. 32. Ibid., 8.3.4, 795. 33. Ibid., 8.3.4, 796. "Ergo non peccat in eo fur, si non suspenditur, sed magistratus, qui proficuam reipublicae animadversionem intermisit. "

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and the peculla:r conception of a right as a kind of property in a person and at the same time as a kind of power. Also there was the rather complex notion of correlative rights in the body of a criminal. (The magistrate has one sort of right, the criminal another.) Finally, the argument was set in a broader framework of discourse where self-preservation was conceived of as both a right and a duty and was taken to imply a natural right to acquire the basic means of life, especially food, if necessary "by force or stealth." OWNERSHIP OF SELF

Let us turn to our medieval author. Henry of Ghent was one of the most illustrious masters of the University of Paris in the latter part of the thirteenth century.He was an eclectic philosopher, usually categorized as an Augustinian or Neoplatonist.In another role he was the outstanding champion of the secular masters of Paris and the French bishops against the encroachments of the new orders of friars, Franciscans and Domini­ cans, and against the more extreme claims of the contemporary popes.In this capacity he was one of the founders of what later became theological Gallicanism. Like other great scholastic masters he had far-ranging in­ terests.34 He wrote, for instance, on issues of economic theory and on the thorny ecclesiological problem of the relationship between scripture and church tradition. Some of his writings also touched on problems of politi­ cal theory.35 In his Quodlibet 9, probably written in 1289, at a time when he was deeply involved in defending the rights of the French bishops, Henry introduced into his text a group of questions about superiors and subordi­ nates. Quaestio 26 is the one that concerns us-"Whether one condemned to death can licitly flee." His first argument was rather similar to one of Pufendorf 's. 34. There is a substantial literature on each separate aspect of Henry's thought but no general work of synthesis. For an overview of his life and writings see R. Macken et al, eds., Henrici de Gandavo opera omnia, 28 vols. (Leuven, 1979-94), 5: vii-xxviii. 35. Henry's political theories were discussed by G. de Lagarde, La naissance de l'esprit lai'que au declin du moyen age, 5 vols., 2nd ed. (Paris, 1956-70) 2: 161-213 and M. Wilks, The Problem of Sovereignty in the Later Middle Ages (Cambridge, 1963). Another of Henry's themes that became a topic of seventeenth-century political theory has attracted some interest, namely his treatment of potestas absoluta and potestas ordinata. Henry was apparently the first philosopher to apply this theological distinction to the power of human rulers (after a simi­ lar usage by the canonist Hostiensis). On this see J. Marrone, "The Absolute and Ordained Powers of the Pope: An Unedited Text of Henry of Ghent," Mediaeval Studies 36 (1974): 7-22; W. J. Courtenay, "The Dialectic of Divine Omnipotence" in Covenant and Causality in Medieval Thought (London, 1984); F. Oakley, "Jacobean Political Theology: The Absolute and Ordinary Powers of the King," Journal of the History of Ideas 29 (1968): 323-46 and idem, Omnipotence, Covenant, and Order (Ithaca, N.Y. 1984).

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THE IDEA OF NATURAL RIGHTS

The body of one condemned belongs more to the judge than some other temporal thing; but it is not licit for the condemned man to take away any other thing from the judge; therefore it is not licit for him to take away his body. . . .36

But this did not settle the question. Henry explained that several persons could have power over the same thing in different ways. For instance one could have property, another use. And if the criminal did not flee when he could he seemed to bring about his own death which no one could lic­ itly do. 37 The rest of the Quaestio was an elaborate inquiry into the differ­ ent kinds of rights that the judge and the criminal possessed in the body of the criminal. The author was especially concerned with rights in cases of extreme necessity. He began with some juristic distinctions taken from the first Dis­ tinctio of Gratian's Decretum. There were four things to be considered, he wrote, in defining the powers that different persons could have over the same thing-fas, licitum, ius, necessitas.38 Fas was natural equity, licitum was what the law permitted, ius was the equity that gave a claim to something, what we might call a claim right, necessitas was the occasion or opportune­ ness of using something belonging to another.39 Quoting the Ordinary Gloss to the Decretum Henry noted here that, when a person was compelled by hunger, "necessity excuses theft."40 Each term in the series was of broader scope then the preceding one, so the last term, necessitas included all the others. Equipped with these distinctions Henry turned back to the rights of the judge and the condemned person. As regards the body of the criminal, 36. Macken, ed., Henrici de Gandavo opera omnia, 13:307. "Corpus damnati rnortis est rnaius quid (iudicis) quarn alia res ternporalis. Sed non licet damnato iudici subtrahere quarncurnque aliarn rem. Ergo nee liciturn est ei subtrahere illi corpus suurn." Macken omit­ ted the word iudicis in his edited text but listed several manuscripts that include it. The word is also in the editio princeps of Paris, 1518. It seems essential to the meaning of the passage. 37. Ibid., 307, "Cum iste abeundo vitarn suarn posset salvare, rernanendo occasionern oc­ cidendi se daret. Quod nulli licet." 38. Ibid., 307, "Dicendurn quod plures habere potestatern super eandern rem diversis re­ spectibus non est inconveniens, ut quod unus habeat in earn proprietatern et alius usurn. . . . Sunt autern quattuor per ordinern se habentia, sectmdurn quae super eandern rem diversas potestates diversi habere possunt diversimode, quae sunt: fas, licitum, ius, necessitas, et in­ cluditur semper prius in posteriori." 39. Ibid., 307-308, "Fas est aequitas naturalis qua quis potest uti re alterius absque damno et incommodo illius. Ut enim dicitur Decretorum dist. I, par. "Onmes leges," "transire per agrum alienum fas est," id est aequurn.. . . Licitum est quod a lege indulturn est. . . . Ius est aequitas quae dat actionem rem vendicandi . . . necessitas est opportunitas utendi re aliena. . . . " See the Ordinary Gloss to Dist. l c.l, "Fas est, id est aequum . . Item iure divino liciturn est comedere uvas in agro alterius . . . tamen non est ius, id est ius non dat civilem actionern." 40. He cited the gloss to De cons ., Dist. 5 c.26, "Necessitas famis excusat a furto."

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the judge had'fhe power of capturing, holding and killing it; but the crimi­ nal had the power of using his body so as to preserve its life, so long as he did not injure another.This was not only equitable (fas) but licit (licitum) because it was permitted by the law of nature, and not only licit but a right (ius) according to the law of nature, and not only was there a right but sometimes a necessity of exercising the right.41 If, for instance, food was withheld from the criminal and he could acquire it by stealth, he had the power and right and necessity of doing so. (Here and in the subsequent discussion the terms ius and potestas were used interchangeably as in the modern authors we considered).In taking the food he needed, the crimi­ nal would not injure another because in case of necessity all things became common.42 This was another doctrine from the Ordinary Gloss to the Decre­ tum; it became a commonplace in later works of moral theology and was still remembered by the seventeenth-century rights theorists.43 The conclusion was that the criminal had an overriding right to pre­ serve his life. The right of the judge over the body of the condemned person did not exclude a corresponding right in the criminal. Just as the judge had a right to hold and kill the criminal, so the latter had an equal, indeed greater right to escape if he could. The right of the condemned person was greater because the judge was not compelled by such neces­ sity to hold and kill the criminal as he was to preserve his own life. If he were left unbound, with the door of his gaol open, he ought to escape; not to do so would be equivalent to suicide.44 41. Ibid., 308, "Dico ergo ad propositum quod super corpus damnati ad mortem potes­ tatem habet iudex saecularis capiendi, detinendi et occidendi. Habet autem et ipsemet damnatus quoad animam potestatem super idem corpus utendi eo ad vitae suae in corpore custodiam, in qua consistit eius perfectio sine iniuria alterius. Et hoc non solum aequitate naturae quae fas est circa rem alienam, sed quae licitum est. Et non solum licitum tamquam a lege naturae indultum in aliquale alterius praeiudicium, sed quae ius est secundum legem naturae. Et non solum ius, sed in casu necessitas exsequendi ius suum." 42. Ibid., 308, "Ut si oporteret captivum talem mori fame nisi acciperet clam contra vol­ untatem custodis sui panem eius, in hoc habet potestatem et ius atque necessitatem utendi corpore ad panem capiendum et vescendum. Et fit hoc sine laesione alterius, quia necessitas facit commune quod erat proprium, ut iuste occupanti concedatur." 43. Cl. ad De cons. Dist. 5 c 26, "Et est ratio quia in necessitate omnia debent esse commu­ nia . . . et maxime cibaria ut ff ad leq. Rhod. de iac. 1.2 (Digest, 14.2.2)." Grotius repeated this doctrine with a reference to the same text of the Digest (De jure belli, 2.2.6). Pufendorf quoted the opinion of Grotius but did not accept it (De jure naturae, 2.6.6, 208). 44. Ibid., 308-309, "Sic dico in proposito quod iudex non tantum iuris habet super corpus damnati, quin et ipsemet damnatus similiter secundum animam habet. Quantum enim habet ille iuris in detinendo et occidendo, tantumdem et plus habet iste in abeundo cum poterit, et vitam custodiendo, et etiam plus iuris habet, quia iudex non tanta necessitate compellitur eum detinere aut occidere, quanta necessitate propter iustum metum mortis compellitur damnatus quod sibi provideat, ne vitam et perfectionem suam in corpore amit­ tat, quia, si in hoc non provideret si posset invenire locum et tempus, ut si forte esset sine

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THE IDEA OF NATURAL RIGHTS

Having reached his conclusion, Henry, in typical scholastic fashion, gave a detailed response to the contrary argument that he had placed at the beginning of the Quaestio-the body of the criminal belonged to the judge; therefore he could not licitly take it away. Henry replied that the criminal could take away anything necessary to sustain life, just as he could take another's bread in case of necessity, provided that he did not violate the right of the judge. But how could he escape without doing this? To carry the argument further, the author returned here to his initial distinction between property and use, the different modes in which the same thing could belong to different persons. One could have a "power" or "right" over something in two ways, Henry explained, either as re­ gards property in the "substance" of the thing or as regards use, the ex­ ercising of some act concerning it. The judge did not have the first power or right of property over the body of the condemned man any more than over his soul; he had only the second right of using the criminal's body in the ways already described (capturing, imprisoning and killing him). 45 Only the criminal himself had a property right in his own body or, as Henry put it, "only the soul under God has property in the substance of the body."46 It is interesting that Henry used the word proprietas. Often in medieval and early modern discourse one reads that a person had dominium over himself.But there was an ambiguity in the term. Dominium could refer to property, but it could also mean control or mastery of one's behavior as in our phrase "self mastery." Aquinas used the term in this sense when he wrote of mens' dominion of their acts, dominium suorum actuum.47 Henry avoided the common term dominium here and specifically referred to pro­ prietas, a property right.Continuing his argument, he asserted that one was bound (tenetur) to use this right in order to preserve one's life­ but, again, without injuring the judge. The argument ended with a final twist. If the judge kept the criminal in firm custody, chained and locked in gaol, then the criminal would indeed injure the judge's right by trying to break loose. But if the judge omitted to exercise his right of confining the vinculis et ostia essent aperta, nee adesset impedimentum abeundi et per hoc vitam sal­ vandi, sui ipsius hornicida esset, non providendo sibi sicut deberet." 45. Ibid., 309, "Ad cuius intellectum sciendum est quod supra rem aliquam dupliciter haberi potest potestas sive ius: una quo ad proprietatem in substantia rei, alia quoad usum in actione aliqua exercenda circa rem. Primam potestatem aut ius nullatenus habet iudex saecularis super corpus damnati plus quam super animam illius, sed secundam tantum, quae consistit in tribus, scilicet in corpus capiendo, in vinculando sive incarcerando, et in occidendo." 46. Ibid., 309. "Potestatem autem quoad proprietatem in substantia corporis sola anima habet sub Deo, et tenetur ius suum in hoc custodire absque iniuria alterius." 47. Summa theologiae, l.2ae.l.2.

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criminal closefy then the latter could and should escape. The judge had no right "in the substance of the body" of the criminal; the right that he did have he lost by failing to exercise it. The escape did not injure the right of another: rather it was imputed to the negligence of the judge.48 It is not surprising that Henry of Ghent should have chosen to discuss the moral rights and duties of a condemned criminal. Aquinas had already considered the same problem, and it became a fairly common topic of scholastic debate. But Aquinas, in typical fashion, discussed the question entirely in terms of objective moral law without exploring the subjective rights of the judge and the criminal.49 Henry of Ghent based his whole ar­ gument on an elucidation of the individual rights of each party. Starting out from some canonistic definitions and doctrines, he created a kind of rights language that was neither Thomist nor Ockhamist, nor indeed, as the argument progressed, like that of any preceding canonist, but that was oddly similar to the language of early modem rights theorists. Henry's ar­ gument was not identical with that of any of the seventeenth-century writers we considered (just as their discussions were not identical with one another); but it contains many of the same elements of discourse that characterized the later works. In Henry's Quaestio we find an emphasis on individual rights, specifically the natural rights to preserve life and to ac­ quire the necessities of life; self-preservation treated as both a right and a duty; the idea that a person has a kind of property right in himself; the equating of a right with a licit power; and an elaborate inquiry, more explicit and detailed than those of the seventeenth-century authors them­ selves, into the correlative rights of judge and criminal. Henry's Quaestio was not forgotten. Just after 1500 Jacques Almain took up the question of the condemned criminal in his commentary on Ockham's Octa quaestiones. Almain belonged to the nominalist school of thought that was dominant at Paris around 1500 and, as Francis Oakley has pointed out, he was a figure of major importance in the transmission of late medieval conciliarist thought to early modem political theorists.50 But in this case he relied, not on Ockham or on conciliarists like Pierre d' Ailly who were influenced by Ockham, but on the earlier work of Henry of 48. Quaestio, 309, "Quod custodiret in praeiudicium et iniuriam iudicis, si, cum existeret corpus in vinculis aut in firmata custodia, ut, abiret, vincula disrumperet aut carcerem. . . . "; Ibid., 310, "Si tamen iudex damnatum dimittat in carcere sine vinculis et negligit firmare carcerem in quo est damnatus, et sic omittit exercere circa ipsum ius quod habuit, quia nee occidit nee detinet, absque omni iniuria iudicis, qui nullum ius habet in substantiam cor­ poris, potest corpus suum abducere. . . . Per hoc enim amittit ille ius suum quia . . . non exercendo ius suum, anima exercente quod potuit et debuit, a iure suo alienatur, hoc negli­ gentiae suae imputet." 49. Summa theologiae, 2.2ae. 69.4. 50. F. Oakley, "Natural Law, the Corpus Mysticum, and Consent in Conciliar Thought from John of Paris to Mathias Ugonius," Speculum 56 (1981): 786-810.

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Ghent. Almain paraphrased Henry's argument at length and reached a similar conclusion. "It seems to me that if it is licit for him to flee he is bound to do so, because by natural law he is bound to preserve the life of his body."51 Almain also discussed more briefly a treatment of the problem by Robert Holcot, a fourteenth century English Franciscan.Holcot was one of the friars in whom Beryl Smalley discerned "classicizing" tendencies, and his argument about the condemned criminal provides another ex­ ample of this approach.He made no reference to the prisoner 's rights but emphasized instead the public welfare, the good of the respublica. Holcot argued that punishment was not inflicted for the good of the criminal but for the good of the republic, which in turn resulted from the goodness of single persons.If, then, the criminal resolved to reform, to abstain from vice in future, even to give his life for the republic if necessary, it would be licit and meritorious for him to save himself.This was because more good might come to the republic through his survival than through his death; it was possible that more people would be restrained from crime by the ex­ ample of his virtuous life than by his undergoing punishment.52 Almain thus offered two approaches to the prisoner 's dilemma, one a humanist ar­ gument based on classical republicanism, the other a scholastic argument based on individual natural rights.Interestingly, it was the scholastic ar­ gument that persisted in seventeenth-century discussions of the problem. The language of subjective natural rights has become a central, charac­ teristic theme of Western political discourse.It is important to know when and how the cluster of ideas it conveys grew into existence, what historical contexts made their articulation possible and their survival likely.A glance at Henry of Ghent's Quaestio suggests that seventeenth-century rights language cannot be adequately understood simply as a response to the contingencies of the early modern era.Rather, it was an adaptation to new circumstances of a much older tradition of discourse. The key concepts of the seventeenth-century rights theorists often had medieval origins. But, in tracing out those origins it is not enough to look at Aquinas and Ockham. Aquinas had no theory of natural rights, and Ockham's origi51. J. Almain, Expositio circa decisiones Magistri Guillelmi Occam in L. E. du Pin, ed., Jo­ hannes Gersonii opera omnia, 5 vols. (Antwerp, 1706), 3: col. 1103. Almain's contemporary at Paris, John Mair, also discussed the problem of the condemned criminal but w ithout explicit reference to Henry of Ghent and without the same emphasis on individual rights. See his In quartum Sententiarum quaestiones (Paris, 1519), Dist. 15 q. 22, fol. cxxiir. 52. R. Holcot, In quatuor libros Sententiarum quaestiones (Lyons, 1518), 3.1 (no pagination), "Lex enim nunquid precipit hominem occidi nisi propter bonum reipublice . . . Est autem possibile in casu quod ista fugiens melioretur per vitam et per merita que post faciet plusquam per mortem illatam corrigeretur, et est possibile quod plures corrigantur et a male­ ficiis retrahantur per vitam suam quam per supplicium suum. Ergo in tali casu sibi licet hoc facere, videlicet declinare mortem per fugam sine iniuria proximi."

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nality in this �r'�a has sometimes been exaggerated. On the other hand, the twelfth-century Decretists made original and significant contributions to the shaping of Western rights language. Then Henry of Ghent made his own distinctive contribution as we have seen. 53 A continuous chain of texts connects the idea of dominion of self with the seventeenth-century doctrines. There are relevant comments, for in­ stance, in Olivi, Gerson, Summenhart, Vitoria, Suarez, and Grotius. Some­ times dominium was taken in Aquinas's sense of self-mastery; sometimes the idea of property persisted, especially in discussions on whether a man could sell himself into slavery. It is a story that has never been adequately written. Medievalists sometimes complain that their work is "marginal­ ized," not sufficiently regarded by scholars working in other fields of research.54 But in this particular area, the history of natural rights theories, perhaps it is we medievalists who are at fault. We cannot reasonably claim that our work is neglected when there is still so much for us to do.

53. Henry also discussed the distinction between a right and the object of the right in his

Quodlibet 12 q. 21, ed cit., 16: 109. On this see F. Veraja, Le origini della controversia teologica sul contratto di censo nel XIII secolo (Rome, 1960). 54. L. Patterson, "On the Margin: Postmodemism, Ironic History, and Medieval Studies,"

Speculum 65 (1990), 87-108. I made much the same complaint in "Hierarchy, Consent, and the Western Tradition," Political Theory 15 (1987): 646-652.

lili OCKHAM AND THE FRANCISCANS

..,, .

FOUR �

THE BEGINNING OF THE DISPUTE

lf n 1321 Pope John XXII initiated a debate over evangelical poverty that

Jl soon led to a bitter dispute between the pope and the leaders of the Franciscan Order. 1 Rather improbably, the murky theological problems involved in this controversy gave rise to intricate debates on topics that would later become central issues of Western political theory; and this is especially true as regards the theory of rights. No participant in the con­ troversy set out deliberately to compose a treatise on natural rights; but, in the course of the arguments that arose, all kinds of such rights came under discussion-the right to acquire property, rights to establish governments and to limit their powers, natural rights as distinguished from civil rights, alienable natural rights and inalienable natural rights, natural rights that were also duties, and what would later be called adventitious rights. In the years around 1300 the understanding of ius as a subjective fac­ ulty, formulated earlier in canonistic jurisprudence, was becoming fairly widespread. The texts of Peter Olivi, Johannes Monachus, and Henry of Ghent that we have already considered suggest a growing awareness of the richness and complexity inherent in the concept of subjective right; 2 1. There is a very large literature on the Franciscan disputes. M. D. Lambert provides a clear outline in Franciscan Poverty. The Doctrine of the Absolute Poverty of Christ and the Apostles in the Franciscan Order, 1210-1323 (London, 1961). On the outbreak of the controversy under John XXII, with extensive further bibliography, see A. Tabarroni, Paupertas Christi et apostolo­ rum. L'ideale Jrancescano in discussione (1322-1324) (Rome, 1990). 2. Above, 39-41, 78-89.

- 93 -

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but it was the Franciscan dispute that first drew this concept into the center of a major public debate, a controversy involving a reigning pope and some of the leading intellects of the age. The intricate details of the dispute need not concern us; but, to understand the arguments concern­ ing rights that grew out of it, we need to review briefly the course of the controversy. FROM FRANCIS TO OCKHAM

Soon after Francis of Assissi died, disputes arose in his Order about the way in which the Rule he had composed was to be observed. In 1231 Pope Gregory IX issued a clarification. The pope declared that, in accor­ dance with the intention of their founder, the Franciscans should own nothing, individually or in common, but should have only the use of the things that they needed. In 1245 Pope Innocent IV made this arrangement more practicable by taking all the goods of the Order into the ownership of the Roman church. From then onward the pope acted as a sort of trustee. The Franciscans used the property conceded to them by benefactors, but they did not legally own anything. Still, disputes persisted, and in 1279 Pope Nicholas III promulgated the bull Exiit, which gave a more precise and very legalistic definition of Franciscan poverty, using the technical terms proprietas, possessio, ususfructus, ius uterzdi, and simplex usus facti: In temporal things we have to consider especially property, possession, usufruct, right of use and simple factual use, and the life of mortals re­ quires the last as a necessity, but it can do without the others.3

The Franciscans, according to the pope, had given up everything except "simple factual use." The language of the bull was taken over largely from the Apologia pauperum of St. Bonaventure. But, while Bonaventure had referred to property, possession, usufruct and simple use of fact, it was Nicholas III himself who introduced the phrase "right of using," and so ensured that the concept of a right would become of major importance in the subsequent disputes. Pope Nicholas himself had no such intention of course. Precisely in order to exclude any future controversy he com­ manded that no glosses should be written on his decretal. (The text still stands, bare of commentary, in many early glossed editions of the Corpus iuris canonici.) Other phrases used by Nicholas III in Exiit also gave rise to later dis­ sensions, especially a passing reference to the ius poli. The pope wrote that, 3. E. Friedberg, ed., Liber sextus in Corpus iuris canonici, 2 (Leipzig, 1879), Sext. 5.7.3, col. 1113, "Nam cum in rebus temporalibus sit considerare praecipuum proprietatem, pos­ sessionem, usum fructum, ius utendi, et simplicem facti usum, et ultimo tanquam necessario egeat, licet primis carere possit vita mortalia. . . . "

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although the F'ianciscans possessed no property from which they could live, still they were not tempting divine providence because, by the "law of heaven" (iure poli), they were permitted, like everyone else, to take what they needed to sustain life in case of extreme necessity. 4 Finally, in what proved to be the most controversial passage of all, Nicholas explained in Exiit that the Franciscan way of life as he had defined it was also the way of Christ and the apostles: This is a way of religious life pure and immaculate before God the Father . . . handed on by his Son to the apostles by word and ex­ ample . . . inspired in blessed Francis and his followers by the Holy Spirit. . . .5

Exiit became a sort of Magna Carta for the Franciscans. It both confirmed their Rule and equated their practices with the evangelical way of life taught by Christ himself. In 1321 Pope John XXII, for reasons that remain obscure, decided to challenge the Franciscan doctrine of apostolic poverty (though he always claimed to be merely "interpreting" the decree of Nicholas IIl). 6 The pope opened his attack by inviting theologians and canonists to debate publicly the question, "Whether it is heretical to assert that Christ and the apostles had nothing singly or in common"; and, to facilitate the debate, he revoked Nicholas Ill's decree forbidding discussion of Exiit. The Franciscans, as­ sembled in a general chapter at Perugia under their minister-general, Michael of Cesena, issued a public encyclical declaring that the issue had been settled once and for all in Exiit and strongly implying that John XXII had no power to change the ruling of his predecessor in such a matter.7 John regarded the encyclical as insolent in form and erroneous in content. In January 1323 he moved decisively against the Franciscans by issuing the bull, Ad conditorem.8 On the level of practical administration he under­ mined the Franciscan position by relinquishing papal ownership of the 4. Ibid., 11 • • • nee ipsis fratribus iure poli in extremae necessitatis articulo ad providen­ dum sustentationi naturae via, omnibus extrema necessitate detentis concessa, praecluditur, cum ab omni lege extrema necessitas sit exempta." 5. Col. 1110, "haec est apud Deum et Patrem munda et immaculata religio . . . per eius £ilium exemplariter et verbaliter apostolis tradita . . . deinde per Spiritum Sanctum beato Francisco et eum sequentibus inspirata. . . . " 6. Modern theories about John XXII's motivation are discussed by T. Turley, "John XXII and the Franciscans: A Reappraisal," in Popes, Teachers, and Canon Law in the Middle Ages, eds. J. R. Sweeney and S. Chodorow (Ithaca, NY, 1989), 74-88. Some of the responses to the pope were printed in F. Tocco, La quistione della poverta nel secolo XIV (Naples, 1910). 7. This aspect of the controversy is discussed in my Origins of Papal Infallibility, 1150-1350, 2nd ed. (Leiden, 1989). 8. E. Friedberg, ed., Extravagantes D. Ioannis Papae XXII in Corpus iuris canonici, 2 (Leipzig, 1879): Extrav. 14.3, cols. 1225-29. For a more recent critical edition see J. Tarrant, Extravagantes Iohannis XXII (Vatican City, 1983).

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Order's goods. He also presented a theoretical case against their claim to have renounced all ownership and right of use. Reviving an old argument that had been used against the Franciscans by earlier critics of the Order, the pope maintained that there could be no separation of use from owner­ ship in things that were consumed in the act of using them. According to the law, a right of use permitted one to use something "saving the sub­ stance of the thing." So there could be no such right when the substance was destroyed by use-as when one ate a piece of bread for instance. Only an owner could licitly destroy his own property. It would be absurd, the pope asserted, to suppose that Nicholas III had intended to reserve for the Roman see the ownership of such things as "an egg, a piece of cheese, or a loaf of bread," while assigning only the use of them to the Franciscans. Moreover, the pope argued, even as regards nonconsumable things, there could be no licit use without a right of using. To use something without a right to use it was simply to act unjustly. The Franciscans reacted to the pope's decision with dismay and indig­ nation. Their proctor at the papal curia, Bonagratia of Bergamo, protested against it so strongly that the pope punished his presumption with a year's imprisonment. Finally, in November 1323, the pope gave his de­ cision on the underlying theological issue of evangelical poverty. In a sol­ emn dogmatic decree, Cum inter nonnullos, he declared that henceforth it would be heretical to maintain that Jesus Christ and the apostles did not "have" anything, individually or in common, or that they had no "right of using" the things that they actually did have or no right of selling, giving, or exchanging them.9 This seems a flat condemnation of the Franciscan doctrine of apostolic poverty, but for several years the leaders of the Order tried to argue, with various verbal equivocations, that the pope's decrees could be reconciled with Exiit and with their own Perugia encyclical. Among the Franciscans at Avignon was the brilliantly innovative theologian, William of Ockham, who had been summoned from England to the papal curia and there accused of various unorthodoxies unconnected with the poverty dispute. At some point a superior, probably Michael of Cesena, commanded Ock­ ham to study the pope's decretals. Ockham became convinced, slowly and reluctantly as he later wrote, that the pope was teaching heresy. Michael of Cesena was coming to the same conclusion. Finally, after an angry confrontation with John XXII in 1329, Michael fled from Avignon accompanied by William of Ockham and Bonagratia of Bergamo. The three dissidents took refuge at the court of the emperor, Lewis of Bavaria, who was engaged in a political dispute of his own with the pope. From there Michael issued a series of manifestos indicting as a heretic "the Lord 9. Extrav. 14.4, cols. 1229-30.

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John who calls'himself Pope John XXII." The pope replied in the bull, Quia vir reprobus. Ockham entered the fray with his Opus nonaginta dierum, a very detailed, word by word commentary on the pope's bull. APPROACHES TO OCKHAM

The Franciscan controversy has often been seen as a source of later rights theories if only because it stimulated the polemical writings of William of Ockham, the "father" of subjective rights according to Michel Villey. 10 Yet Ockham himself remains something of an enigma. For Georges de Lagarde the venerabilis inceptor was "an awakener of the modem world"; for John Morrall he was "an interpreter and defender of the achievements of the past." 11 In spite of all the work of the past few decades no consensus has emerged concerning Ockham's early philosophical and theological doctrines or concerning his later writings on political theory. Nor is there any agreement about the relationship between these different spheres of his thought; this too remains problematic. There are several different ways of addressing Ockham's work­ several different contexts within which we need to consider it-if we are to evaluate adequately his contribution to the growth of Western ideas about natural rights. One common approach to Ockham takes the last problem mentioned above as its starting point. According to this view, Ockham's political ideas can best be explained by placing them in the con­ text of his voluntarist and nominalist philosophy. Advocates of this meth­ odology, prominent among them de Lagarde, Villey and, more recently, Michel Bastit, usually find Ockham's work to have been radically inno­ vative and essentially destructive. The Franciscan's "corrosive criticisms," these authors assert, both subverted medieval institutions and, in the world of thought, fragmented an earlier scholastic synthesis. Ockham's nominalism, it is maintained, led on to "social atomism" and his volun­ tarism to a positivistic conception of law as mere command. Another group of scholars-including critics of de Lagarde and Villey like Morrall and Kolmel-argue that Ockham's political and ecclesiologi­ cal writings have no necessary connection with his early speculative philosophy; they maintain that the political ideas were derived or could have been derived from more traditional sources.12 These authors usually 10. M. Villey, La formation de la pensee juridique moderne, 4th ed. (Paris, 1975), 226. 11. G. de Lagarde, La naissance de l'esprit laique au declin du moyen iige, 5 vols. (Paris, 1956-63), 5:337. This is a revised version of a w ork originally published in six volumes (Paris, 1934-46). J. B. Morrall, "Some Notes on a Recent Interpretation of William of Ock­ ham's Political Philosophy," Franciscan Studies 9 (1949): 335-69 at 369. 12. Ibid., W. Kolmel, "Das Naturrecht bei Wilhelm von Ockham," Franziskanische Studien 35 (1953): 39-85; idem, Wilhelm von Ockham und sein kirchenpolitischen Schriften (Essen, 1962).

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see Ockham's work as moderate and constructive. Neither line of argu­ ment has provided altogether satisfactory answers to the questions that will most concern us. How did Ockham come to formulate a doctrine of natural rights? And what, if anything, was innovative in his teaching about them? Villey and de Lagarde wrote extensively, but, it seems to me, not convincingly about Ockham's rights theories; their critics have not fo­ cussed particularly on the Franciscan's thought about rights but more on other aspects of his political theory. 1 3 The problem of understanding the relationship between the different areas of Ockham's thought is complicated by continuing disagreements about the kind of moral theory that the venerabilis inceptor developed in his early theological and philosophical works before he turned to writing on ecclesiology and political thought. Those who see Ockham as a radical voluntarist emphasize his teaching on the absolute freedom and infinite will of God. Reacting against a strain of Aristotelian necessitarianism that had appeared in medieval philosophy, Ockham insisted that the divine will was entirely unconstrained. In God there was no distinction between will and intellect. Whatever God willed to do was done justly and well. And nothing that God willed in regard to creatures was willed necessar­ ily.14 So the whole universe that God had made, including the universe of moral values, was contingent. By his absolute power God could create some other universe of values in which it might be virtuous to steal or lie or commit adultery. 15 In the world of human affairs, it is argued, this led on to a doctrine of law as simply the command of a legislator and of rights as mere assertions of individual wills. Since the moral principles that guided human conduct were commands of an inscrutable God, who could change them at will, they could be known only through God's revealed word and not through any natural law accessible to human reason. 16 13. For a moderate discussion of Ockham's rights theory in relation to his nominalist phi­ losophy see A. S. McGrade, "Ockham and the Birth of Individual Rights," in B. Tierney and P. Linehan, eds., Authority and Power. Studies on Medieval Law and Government Presented to Walter Ullmann (Cambridge, 1980), 149-65. McGrade pointed to "affinities" between Ock­ ham's nominalism and his political concepts without asserting that the latter view s were necessarily derived from the former ones. 14. Guil/elmi de Ockham opera philosopliica et tlzeologica, ed. G. Gal et al., 17 vols. (St. Bonaventure, NY, 1967-88). Opera tlzeologica 4:664, " . . . nulla penitus est distinctio inter es­ sentiam et voluntatem nee inter voluntatem et intellectum . . . . "; 3:478, " . . . eo ipso quod ipse (Deus) vult, bene et iuste factum est"; 9:589, "Quidquid Deus agit ad extra, contingenter agit et non necessario . . . . " 15. OTlz, 5:352, " . . . odium, furari, adulterari et similia . . . etiam meritorie possunt fieri a viatore si caderent sub praecepto divino, sicut nunc opposita cadunt sub praecepta." 16. P. Helm, ed., "Introduction," in Divine Commands and Morality (Oxford, 1951), 3, "Ockham could consistently only regard ethics as a matter of special divine revelation in scripture or elsewhere, and not as a matter of natural law discerned through reason or con­ science."

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This seem; a coherent argument. But there is another whole side to Ockham's thought that has been emphasized by several recent schol­ ars. Marilyn Adams has referred to Ockham's moral theory as "notorious but widely misunderstood";17 and John Kilcullen concluded a recent dis­ cussion by observing simply, "It seems that Ockham's moral theory is not voluntarist." 18 In fact, Ockham left a complex web of texts from which modern scholars have extracted a variety of theories. Certainly Ockham emphasized both divine omnipotence and human free will. But he also insisted that human reason could provide a reliable and necessary guide to moral conduct. Ockham maintained that only a voluntary act could be morally right or wrong; but he held that, precisely because the will was free to choose either good or evil, something we know from experi­ ence, the will needed a directing rule other than itself.19 This rule was right reason. Ockham declared over and over again that any virtuous act had to be elicited by the will "in conformity with the dictate of reason." 20 Moreover, the exercise of right reason did not involve merely the for­ mation of moral statements; it included also the act of assenting to such propositions as a source of moral obligation.21 Evidently, for Ockham as for other scholastic philosophers and for the earlier canonists who had de­ fined ius naturale as a "force of reason" in man, the term right reason did not mean merely ratiocination (or "reckoning" as Hobbes would put it). Nor was reason, as in some later voluntarist theories, merely instrumental, a "slave of the passions," guiding us to the attainment of the end that the 17. M. M. Adams, "The Structure of Ockham's Moral Theory," Franciscan Studies 46 (1986): 1-34 at 1. Adams quoted the view of Helm together with half a dozen similar remarks from other authors. 18. J. Kilcullen, "Natural Law and Will in Ockham," History of Philosophy Yearbook 1 (1993): 1-25 at 25. 19. OTh, 6:375, ". . . solus actus voluntatis est bonus vel malus moraliter"; 8:410 "llia vol­ untas quae potest . . . indifferenter bene agere et male . . . indiget aliqua regula dirigente alia a se"; 9:88, "Potest tamen evidenter cognosci per experentiam . . . quod quantum­ cumque ratio dictet aliquid, potest tamen voluntas hoc velle vel non velle vel nolle." The works I found especially useful for the following discussion, besides those of Adams and Kil­ cullen already cited, include: L. Freppert, The Basis ofMorality According to William of Ockham (Chicago, 1988); D. W. Clark, "Voluntarism and Rationalism in the Ethics of Ockham," Fran­ ciscan Studies 31 (1971): 72-87; idem, "William of Ockham on Right Reason," Speculum 48 (1973): 13-36; K. McDonnel, "Does William of Ockham Have a Theory of Natural Law?" Franciscan Studies 34 (1974): 383-92. 20. OTh, 6:422, ". . . de ratione virtutis perfectae et actus eius est quod eliciatur conformiter rationi rectae. . . . "; 8:362, "nullus actus est virtuosus nisi sit conformis rectae rationi . . . . "; 8:409, ". . . actus recte eliciatur a voluntate necessario requiritur aliqua recta ratio in intellectu . . . . "; 8:410, "non potest esse rectus et virtuosus nisi habeat rationem rectam"; 9:177. The· term "moral" refers to "actibus subiectis potestati voluntatis secundum naturale dictamen rationis. . . . " 21. OTh. 6:423, ". . . actus dictandi intellectus non est formaliter complexum, sed est actus assentiendi vel dissentiendi complexo iam formata. Et ex illo actu assentiendi gener­ atur prudentia, non autem ex formatione complexi."

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will desired. Rather, the Franciscan philosopher was using right reason in a typically scholastic sense to mean a "directing rule" of conduct.22 As re­ gards the source of this rule's authority, Ockham held it to be a self-evident principle of morality (per se nota) that the will ought to act in conformity with reason. 23 From such self-evident principles (of which there were many according to Ockham), and from experience, it was possible to build up a "nonpositive moral science . . . that directs human acts apart from any command of a superior." 24 All this seems far removed from a radical voluntarism. Yet Ockham also held that, behind right reason, stood divine com­ mand as an ultimate norm of morality. 25 Modern scholars have found it difficult to reconcile Ockham's various pronouncements. One of them concluded that "Ockham has no ethical 'system'."26 At least it is evident that there are both rationalist and voluntarist elements in his moral theory. Stephen McGrade even referred to "the rationalism of Ockham's volun­ tarism." 27 The point for us is that, when one approaches Ockham's work by considering the relationship between his early speculative writings and his later polemical works, it is necessary to consider, not only whether there was any significant relationship between the two areas of thought, but also, if that proves to be the case, what elements of his earlier thought were most relevant for the later writings. A different approach to the venerabilis inceptor was suggested by Sten Gagner in an article on Ockham's concept of dominium.28 Gagner pointed 22. The common scholastic understanding of recta ratio as the practical wisdom that should guide our conduct was rooted in Aristotle's Ethics . The phrase took on new shades of meaning when it was associated with the medieval conscientia and synderesis . 23. OTh . 9: 177, ". . . multa sunt principia per se nota in morali philosophia; puta quod voluntas debet se conformare rectae rationi, omne malum vituperabile est fugiendum et huiusmodi." 24. Ibid., "Scientia moralis non positiva est illa quae sine omni praecepto superioris di­ rigit actus humanos; sicut principia per se nota vel nota per experientiam sic dirigunt . . . ." Later on Suarez saw Ockham as the fountainhead of a voluntarist tradition that based all morality simply on the will of God. He contrasted this view with another late medieval doc­ trine holding that the moral principles discerned by human reason would be valid even if there were no God-an argument famously restated by Grotius . It may be that both the later positions were extrapolations (perhaps distortions) derived from different aspects of Ockham' s work 25. Ibid., 8:411, ". . . voluntatem divinam volentem talem elicere actum conformiter rectae rationi." 26. Clark, "Ockham on Right Reason," 35. 27. A. S. McGrade, The Political Thought of William of Ockham (Cambridge, 1974), 195. Mc­ Grade's work is especially valuable because the author gives due weight to the rationalist side of Ockham's moral thought. 28. S. Gagner, "Vorbemerkungen zum Thema 'Dominium' bei Ockham," Miscellanea me­ diaevalia 9 (1974): 293-327.

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out that the topics Ockham discussed in his political works were all di­ rectly or indirectly related to juristic problems. He argued therefore that, to understand Ockham's distinctive contributions, we need to enter the "ju­ ristic thought world" of the Middle Ages. Gagner emphasized Ockham's constant reliance on the texts of Gratian's Decretum even, paradoxically, when the Franciscan was arguing that a theologian was better equipped than a canonist to discuss the points in dispute between the friars and the pope. Gagner also discussed another of Ockham's comments that helps to explain this persistent reliance of a theologian on the texts of canon law. At one point in the Dialogus, when he was about to discuss the rights of the Roman empire, Ockham's Master explained that, for a thorough treat­ ment of the subject, he would need an extensive library that would include books on theology and moral philosophy and a variety of histories. But in fact, the Master complained, he had access only to the Bible, the Dec­ retum, and the five books of the Decretals. 29 The vast majority of Ockham's references are indeed to these sources or to the ordinary glosses on them that commonly accompanied the text. De Lagarde also called attention to Ockham's use of canonistic sources, even though he placed more emphasis on the Franciscan master's nomi­ nalist philosophy in interpreting his political works. The French scholar even took the trouble to count the citations in one book of the Dialogus. He found three references to Thomas Aquinas, twelve to church fathers, sixty-five to scripture, and three hundred and thirteen references to canon law. 30 As de Lagarde wrote, Ockham "installed himself in the labyrinth of the Decretum and its glosses"31 in order to examine afresh the basic prin­ ciples of ecclesiology; but de Lagarde also referred to Ockham's "insidi­ ous subtlety and respectful impertinence." He thought that the display of canonistic learning served to mask Ockham's true intentions; the Francis­ can was really subverting the tradition that he purported to expound. 32 This, however, is by no means self-evident. When we seek to locate Ockham's thought in the world of canonistic jurisprudence that provides one obvious context for evaluating it, we need to keep other possibilities in mind. Above all we need to ask whether Ockham really was a radically in­ novative critic of existing juristic ideas when he shaped his own doctrine of natural rights. Was he imposing novel meanings on the texts he cited? Or simply selecting from existing interpretations the ones most suited to his purpose? We cannot know whether Ockham was a revolutionary with­ out some familiarity with the pre-existing canonistic orthodoxies. 29. at 870. 30. 31. 32.

Dialogus in M. Goldast, ed., Monarchia S. Romani imperii, 2 (Frankfurt, 1614): 396-957 La naissance, 4 (1962), 52. La naissance, 5 (1963), 269. La naissance, 5 (1963), 126.

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A further problem here is that we know very little about when and how Ockham came to study the canon law, or about how extensive a knowledge he acquired of canonistic literature. H. S. Offler, who knew Ockham's texts so well, saw this as "a problem awaiting further investiga­ tion" ; 33 but there seems to be no definitive evidence that would lead to a solution. Often Ockham used arguments that seem to echo some early De­ cretist teaching but without any direct reference to a source or any certain evidence that he had actually used the relevant text. Ockham certainly knew at least the Ordinary Gloss to the Decretum of Johannes Tentonicus and relied heavily upon it. One has the impression that the Franciscan often had this work open in front of him as he hunted out arguments to refute his adversaries; but his use of even this source is not always appar­ ent. Quite frequently Ockham gave specific references to the Ordinary Gloss, but occasionally he quoted it without mentioning his source; and sometimes it is helpful to know the source in order to understand the point that Ockham was making.34 Because of various similarities of thought and language I think that, apart from the Ordinary Gloss, Ockham must at least have known the work of Huguccio, perhaps through some intermedi­ ary source. One such work that Ockham could have used was Guido de Baisio's Rosarium, a vast compilation of glosses on the Decretum that rein­ troduced much early half-forgotten Decretist scholarship to the world of the early fourteenth century.35 It remains true though that Ockham was a theologian, not a profes­ sional canonist; probably he never acquired a firm grasp of the whole 33. H. S. Offler, "The 'Influence' of Ockham's Political Thinking: the First Century," in

Die Gegenwart Ockhams, eds. W. Vossenkuhl and R. Schonberger (Weinheim, 1990), 338-65 at

359 n.56. 34. Ockham's use of canonistic sources is discussed in more detail in my articles, "Ockham, the Conciliar Theory, and the Canonists," Journal t�{ tlte History of Ideas 15 (1954): 40-70 and "Natural Law and Canon Law in Ockham's Dialogus," in J. G. Rowe, ed., Aspects of Late Medieval Government and Society. Essays Presented to J. R. Lander (Toronto, 1986), 3-24. The discussion in the text above is based mainly on these two papers. 35. Guido's work was certainly known at Avignon in the 1320s. The Rosarium was used by the canonist Zenzellinus de Cassanis in his commentary on Cum inter (John XXII's dogmatic decree on evangelical poverty). Relying on an earlier gloss of the canonist Alanus, which he quoted from the Rosarium, Zenzellinus wrote that the pope could create a new article of faith. This unqualified assertion proved unacceptable to John's curial advisers, and Zenzellinus was required to rewrite his gloss in a more discreet fashion. Ockham can hardly have been un­ aware of the dispute. It touched the heart of the Franciscan case and occurred at Avignon while he was resident there. Ockham referred to the view of Alanus in his Dialogus (1.1.14, 421) but without explicit reference to his source. If he did trouble to look up the disputed text in the Rosarium he would have found there an ample array of Decretist glosses on the issues that came to dominate his later work. I noted a close verbal parallel between Ockham's Brevil­ oquium and the Rosarium in "Ockham, the Conciliar Theory, and the Canonists," 45. On the dispute involving Zenzellinus see my Origins of Papal Infallibility, 194-95, 226.

THE BEGINNING OF THE DISPUTE

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structure of the corpus of canon law with its major commentaries. It seems to me likely that, when Ockham began to study the problems of poverty and property at Avignon, he acquired a fairly extensive knowledge of can­ onistic commentaries on the dozen or so texts of the Decretum that were of central importance in the dispute and that later he worked from memory or possibly from a dossier of notes. In any case, if Ockham really did in­ tend to build a doctrine of rights on canonistic foundations, he would not have needed any vast juristic erudition. Huguccio, together with the ordi­ nary glosses to the Decretum and the Decretals, could have provided all the sources he needed. And often the arguments of his adversary, Pope John XXII, who was a professional canonist, would have pointed Ockham toward the texts he most needed to study. Ockham was not striving to construct a political theory or a system of ecclesiology in a vacuum. He was engaged in a furious dispute with the pope. His own positions were shaped in response to the arguments, often juridical arguments, of the enemies he sought to vanquish. 36 This can remind us of a final context in which Ockham's work has to be considered, the context of the Franciscan dispute itself. Much that Ock­ ham wrote was drawn from a common stock of Franciscan arguments; a too exclusive emphasis on Ockham's personal role can distort our under­ standing of the whole affair. Other participants in the dispute, Ockham's adversaries as well as his allies, were also important in developing the con­ cept of subjective rights. The Dominican theologian, Hervaeus Natalis, wrote interestingly about property rights; so did the Franciscan canonist, Bonagratia of Bergamo; so did Marsilius of Padua; and so too of course did Pope John XXII himself. (When, centuries later, Suarez and Grotius wanted to discuss the origin of private property they did not choose to quote Ockham; but they both cited the decretals of John XXII.) I am not suggest­ ing that Ockham's own contribution was inconsiderable. On the contrary, the Franciscan master should always be seen as a figure of major signifi­ cance in the history of rights theories; but we cannot grasp the nature of his contribution unless it is set against the background of these other writings. There are then, several contexts within which Ockham's work can be evaluated. To understand adequately his ideas on natural rights we need to keep in mind especially the three I have mentioned above-the context of Ockham's own earlier theological writings, the context of his canonistic sources, and the immediate context of the dispute over Franciscan poverty.

36. In Origins I .argued that Ockham was led by his conflict with John XXII to propound a flawed and incoherent ecclesiology. But I w as concerned there only with his teaching on the infallibility of the pope and the Roman church. I do not think that the same criticism ap­ plies specifically to Ockham's thought about natural rights.

FIVE LANGUAGES OF RIGHTS

lf n the following discussion I want to prescind as far as possible from Jl the technicalities of the argument about Franciscan poverty in order to

concentrate on a rather formalistic but important theme--the various defi­ nitions of ius that emerged in the course of the dispute and, especially, the understanding of ius as a subjective power. This is a typical case where we can understand Ockham's distinctive contribution only by considering first the arguments presented by some of the other major participants in the controversy. Especially relevant are the views of two sharply opposed thinkers, Hervaeus Natalis and Marsilius of Padua. HERVAEUS N AT ALIS,

Ius AND POTESTAS

One of the most influential responses elicited by John XXII's invitation to debate the issue of evangelical poverty came from the master-general of the Dominican Order, Hervaeus Natalis. 1 In his treatise, De paupertate, Her­ vaeus formulated two arguments that I have already mentioned in con­ sidering John XXII's case against the Franciscans-licit use of things that were consumed in use (like foodstuffs) could not be separated from own­ ership; and there could be no licit use of anything else without a right of use. Since the actual use of things was necessary to sustain life it followed that Franciscans and the apostles before them, could not have rejected all 1. J. G. Sikes, ed., "Hervaeus Natalis: De paupertate Christi et apostolorum," Archives d'histoire doctrinale et litteraire du moyen age 12-13 (1937-38): 209-297. -104 -

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ownership arta. all rights. For the purposes of our inquiry the important point about these arguments is that they led Hervaeus to make frequent use of words like ius, dominium, potestas, and proprietas. He often associated the concepts of right and ownership in the phrase ius et dominium, which he used over and over again almost as if it were a single hyphenated vo­ cable. He also frequently associated the concepts of right and power. To appreciate the significance of this we need to recall the widely ac­ cepted view of Michel Villey that William of Ockham was the first phi­ losopher to understand the word ius in the sense of a subjective right and, further, that the semantic breakthrough came precisely when Ock­ ham "resolutely twisted" the idea of "right" to the meaning of "power" in phrases like "A right is a licit power" (ius est licita potestas). 2 In fact, the understanding of a right as a power was common in juristic thought long before Ockham. But Villey maintained that a new philosophy was needed to justify such scattered usages before they could form the basis of a new jurisprudence. In his view, Ockham provided the necessary philosophical foundation; his nominalism was the "mother" of subjective right. And this meant further that the modern concept of individual rights was derived from a philosophy radically inconsistent with the teaching of Aquinas. In modern discourse, Villey noted, a right means "the power itself, a quality of the subject, the dominium which he has over things." But such a definition was impossible within a Thomistic framework of thought. For Villey the idea of subjective natural rights was logically incompatible with the objective "classical natural right" that we find in Aristotle and Aquinas. 3 Now Hervaeus Natalis was a faithful Thomist, an ardent defender of Aquinas's philosophical doctrines against their various critics, a man "glowing with enthusiasm for Thomas," according to a modern account.4 But, writing some ten years before Ockham entered the controversy over evangelical poverty, Hervaeus persistently used the same language about "right" and "power" that we find in Ockham, the language that is sup­ posed to be the Franciscan master's distinctive contribution to the growth of rights theories. The relevant part of Hervaeus's treatise was concerned with the ques­ tion, "Whether right and ownership in temporal things can be separated from use of them." To address this question the Dominican first explained the meanings of ownership (dominium), right (ius) and property ( proprie­ tas). According to Hervaeus each of these words conveyed the meaning of 2. M. Villey, La formation de la pensee juridique moderne, 4th ed. (Paris, 1975), 225- 262, es­ pecially 247-49. On Villey's views see above, Ch. 1 . 3. Ibid., 227, "En tout cas . . . le droit subjectif est logiquement incompatible avec le droit naturel classique." 4. F. J. Roensch, Early Thomistic School (Dubuque, 1964), 117, quoting Martin Grabmann.

1 06

THE IDEA OF NATURAL RIGHTS

a power to use or alienate a thing. 5 But there were different shades of emphasis. Dominium referred more to the power itself, ius more to the licit­ ness of the power, and proprietas indicated that the thing in which a right was held was one's own, not belonging to someone else. Hervaeus also noted here a distinction between a factual power and a lawful power. (The Franciscans claimed to retain only a "factual use" of things.) De facto a person could use something licitly or illicitly; but licit use required a lawful power. The power to use licitly, Hervaeus noted, meant a "power as of right" or "the right itself." 6 The argument then turned to the various ways of holding "right and ownership" (ius et dominium). Here Hervaeus distinguished between the principal owner of a thing and one who had a right in it. A person who leased a house, for instance, owned a right to use the house; he had a kind of dominion therefore as regards the right, though he did not own the house itself.7 The idea that one could have dominion over a right had been developed earlier by civil lawyers and Hervaeus was making the same point.8 This seems to be the starting point of the argument about whether every ius implied some kind of dominium that Richard Tuck pursued in its later stages.9 Hervaeus went on to consider another problem that was often de­ scribed by later participants in the poverty dispute. The Franciscans often argued that a person who made use of things solely by permission of someone else-which was their own position so they claimed--could use without having any actual right of use even as regards consumables. A slave, for instance, used the property of his master, including the food he ate, without ever having a right to it. And it was the same with a monk in relation to his monastery or a filiusfamiliae in relation to his father. Her5. De paupertate, 235-36, "Quantum ad primum, sciendum quod ista nomina, 'do­ minium', 'ius', et 'proprietas', idem dicunt in re. Nichil enim aliud dicunt quam habere potestatem in aliqua re per quam possit licite re aliqua uti vel rem aliquam alienare... . " 6. Ibid., 236, • • posse licite