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

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

Karlson, Fred

The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625. By Brian Tierney. Atlanta: Scholars Press, 1997, xi + 380 pp., $24.95.

Brian Tierny of Cornell University presents a historical development of the subjective meaning of dikaion and ius relative to human rights, breaking with the common notion of when and how this development began.

Throughout classical philosophy, Roman law, medieval jurisprudence, and the writings of many later natural law philosophers, the word ius was first understood as an objective right relationship, then as a law or moral precept. Later, it took on a subjective meaning. Michel Villey held that the subjective meaning of ius originated in the fourteenth century with William of Ockham and his nominalistic view on universals. Tierney, however, cites Bonaventure and other thirteenth-century Franciscans as well as their adversaries-for example, Henry of Ghent and Godfrey of Fontaines-who all used the word ius in a subjective sense. “The doctrine of individual rights was not a late medieval aberration from an earlier tradition of objective right or of natural moral law…. It was a characteristic product of the great age of creative jurisprudence that, in the twelfth and thirteenth centuries, established the foundations of the Western legal tradition” (p. 42).

According to Tierney, many medievalists easily moved between the two meanings of ius as objective law and subjective right. Some of the twelfth-century canonists affirmed ius naturale as the right to reclaim or to relinquish that which is one’s own. This was applied to Paul’s statement, “All things are lawful for me.” It was also used to explain Christian exemption from Jewish ceremonial precepts, as these were replaced by the concept of natural liberty.

It is popular fare today to deny the notion of an inalienable right to anyone living prior to the seventeenth century. As Tierney underscores, however, Henry of Ghent argued in his Quaestio for the right of self-preservation. Property was considered by the medievalists to be both private and common, depending on the need. While many have shown that Thomas Aquinas did not state a theory of natural rights, Tierney notes “there was nothing in his work that necessarily excluded such a concept” (p. 108). Moreover, Hermanus Natalis, a Thomist who wrote ten years before Ockham, employed the language of natural rights, as did later many of the greatest thinkers of the Spanish second scholasticism.

According to Tierney, the first overt distinction between objective law and subjective right seems to have come from the pen of Marsilius of Padua (d. about 1342), who employed ius as individual right and lex as the law that defined it. This was a careful departure from the fourteenth-century jurists who took for granted the polysemous nature of ius. At this same time, William of Ockham disagreed with Pope John XXII concerning the notion of ownership, arguing for the Franciscan right to the vow of poverty. Ockham believed that dominion need not imply ownership. Christian law, according to the epistle of James, was a law of perfect liberty. In light of this, Ockham argued that the pope could not command anything contrary to divine and natural law; indeed, papal power had its proper limits in view of both temporal and spiritual rights. Vows of poverty, fasting, and renouncing property were not contrary to divine and natural law. The pope could not command them either, because to do so would contradict the liberty of the gospel. Scripture and right reason, argued Ockham, were the infallible rule in such matters, not one’s naked will.

Tierney argues that Ockham’s nominalism had no apparent connection with his view on natural rights. Both nominalists and realists, as well as rationalists and voluntarists, argued for natural rights; thus, rights theorists cannot be conveniently portrayed as either atheists following Hobbes or aberrant Christian thinkers dependent on Ockham. As Jacques Maritain has argued, individual rights were always implicit in the Christian concept of individual human dignity.

Tierney traces this development further. With the advent of the discovery and colonialization of America, questions began to surface relative to the domination of people groups. Did such people have rights? Francisco de Vitoria, a sixteenth-century Spanish Thomist, argued that all human beings, whether sinners, children or natural slaves, could possess natural rights. Bartolomeo de Las Casas spent twenty years working among the American Indians, trying to convert them by peaceful persuasion. Writing in his De thesaurus of the “dignities, good and other rights” that the infidels possessed by natural law, he argued that even barbarians should be treated with “brotherly kindness and Christian love” (pp. 275-78).

Continuing on, Tierney notes that Francisco de Vitoria derived his subjective notion of ius from Aquinas and Gerson. After this, definitions of ius as a faculty or power passed into the works of sixteenth-century theologians such as Suarez and Molina. Finally, in the seventeenth century, the Dutch Protestant humanist Grotius completed the bridge over which European culture passed from the medieval to the modern era. He cited not only the Spanish scholastics but also earlier medieval works relative to rights theories. Grotius had a dream of a reunited Christendom in which differences would be tolerated. Independent sovereign states would owe no allegiance to an outside power, except by a universally accepted international law. Grotius influenced all the major rights theorists of the next century.

Tierney has done us a great service in compiling a multitude of texts that bear on human rights. Among other things, his presentation will challenge modern pietists who hold that “believers have no rights.” Also, he opens the way for us to see a continuum from the ancients to the present concerning the idea of natural rights.

Fred Karlson

Grand Rapids, MI

Copyright Evangelical Theological Society Mar 2002

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