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Ralph McInerny*
The name most readily associated with the insistence that individual
rights, natural rights, are a modern innovation, having no counterpart in
ancient or medieval jurisprudence, is that of Michel Villey. Over a long
career, in season and out, he has argued that all efforts to find in the
Aristotelian dikaion or the Roman ius anything like what we mean by a right
are misbegotten.[1]
The just, whats fair, the dikaion or iustum is a thing, a relation or
proportion, out there, to be objectively determined by the judge so that the
contentions of the parties to a suit are adjusted. The shift from the just as a
thing (in a large sense of the term, as out there, an object) to something
someone or everyone has, in virtue of which one can make claims on some
or all others, is fundamental and Villey traces its origins to the so-called
Second Scholasticism, the Iberian renaissance at Salamanca when, because
of the unnoticed inroads of nominalism, rights began to be spoken of as
inherent in individuals.[2] Villeys association of human rights and nominalism
has been contested,[3] and of course Villeys insistence would have been
unnecessary if there were not many who argued for a continuum between
the ancients and moderns.
Perhaps no one would disagree with Villeys reading of Aristotle, the
Roman jurists, and St. Thomas Aquinas, when he argues that the just,
the dikaion, ius, do not name a quality or faculty or power of individuals.
That there is no suggestion whatsoever in ancient or pre-nominalist
medieval thought of rights in the modern sense has been contested,
however.[4] But even when Villey is accused of overkill in making his basic
historical point, most critics agree that the mark of the modern is to elevate
a theory of society and law on individual human rights and in this the
modern surely differs from the ancient and medieval. Moreover, Villey has
pointed out, supposed instances of subjective rights in Gaius, for instance,
have a distinctly odd ring to them. For example, reading of a ius altius
tollendi, we would naturally think of this as a householders right to add a
story to his house. But there is also a ius non extollendi, and this must sound
odd to us; what could it mean to have a right not to build higher? Unless of
course we imagined an ancient paterfamilias being importuned by his
household to lift his roof. But that is not what is meant. There are certain
situations in which it is fair, just, objectively right, for one to add to his
house and other situations in which it is not. What right means in that sense
is the object of the judges sentence or judgment. Villey also draws
one of the most eloquent recent critics of the notion of natural rights. His
criticisms can be attached to Villeys effort to derive natural rights talk
from the rise of nominalism and the emphasis on the individual. But
Maclntyre would underscore that the individual who is the supposed carrier
of rights simply does not exist. Natural rights theory imagines human beings
as monads prior to any interpersonal relations, lodged in no particular
culture or tradition. Since there are no such individuals, if natural rights
require such individuals, natural rights are chimeric indeed.
Lacking any such social form, the making of a claim to a right would
be like presenting a check for payment in a social order that lacked
the institution of money.[6]
Jacques Maritain addressed the problem of natural law and natural rights
on a number of occasions, but for purposes of this paper, the treatment
in Man and the State will be taken as canonical.[8] The problem arises when
Maritain confronts the problem posed by the fact that signatories of the
1948 Universal Declaration on Human Rights held radically different views of
what is human and what is right, to say nothing of democracy, which figures
essentially in the document. Maritain states a thesis: men mutually opposed
in their theoretical conceptions can come to a merely practical agreement
regarding a list of human rights.
Maritain, who served as French ambassador to UNESCO, was not deluded
about the practical situation. The member states represent different and
conflicting ideologies, philosophical and religious traditions, cultures,
histories. Agreement by their representatives on such a declaration as that
of 1948 thus must seem either merely verbal or cynical or hopelessly
confused. The philosophical question that arises has to do with the rational
foundation of human rights. He puts his own cards on the table immediately.
The philosophical foundation of the Rights of man is Natural Law [80].
Distinguishing the many and various theories of natural law from natural law
itself, Maritain puts forth his own account which will reestablish our faith
in human rights.
The true philosophy of the rights of the human person is based upon
the true idea of natural law, as looked upon in an ontological
perspective and as conveying through the essential structures and
requirements of created being the wisdom of the Author of Being. [84]
Maritain sees a natural law tradition that goes back through Grotius and
Suarez and Francisco Vitoria to Thomas Aquinas (He alone grasped the
matter in a wholly consistent doctrine, which unfortunately was expressed
in an insufficiently clarified vocabulary).[9]The first element of natural law
is an ontological one, by which Maritain means that there exists a human
nature, thanks to which every human person is gifted with intelligence and
is capable of pursuing ends in a way for which he or she is answerable. This
nature is the basis for judgments of the normal functioning of the agent
whose nature it is. A proper understanding of what man is thus generates
knowledge of what man should be and do. The law of mans nature is a
moral law. This ontological element is both a given and an ideal.
Maritain calls the second element of natural law gnoseological, by
which he means our grasp or knowledge of the ontological element. This
knowledge is one of the prime instances of connatural knowledge: we do not
grasp the law of our nature in concepts and theories: It is obscure,
unsystematic, vital knowledge by connaturality or congeniality, in which the
intellect, in order to bear judgment, consults and listens to the inner
melody that the vibrating strings of abiding tendencies make present in the
subject [91-92].
Is Maritain unaware of the breach others have seen between the
natural law tradition and the tradition of human rights? Not at all. But he is
convinced that antagonism between the old and new rights of man is
overstated and far from insuperable. Here he has in mind as new rights the
social and economic rights insisted on by Marxists. By the same token, he
sees no insuperable obstacle to aligning natural law and natural rights in the
old sense.
One is nonetheless somewhat surprised at Maritains confidence about
the compatibility of natural law and natural rights. Indeed, he takes modern
lists of rights as just what natural law is meant to ground. That there might
be other theories of those rights which are in conflict with his theory does
not disturb him because he has distinguished the knowledge of the natural
law from the natural law that is known. What is known is the way things are
and theories either get that right or they dont. The task then is not to get
the other theories to capitulate to his theory, but to get them all in accord
with what they purport to explain.
B. FINNIS ON RIGHTS
The very title of John Finnis masterly book of a decade ago Natural
Law and Natural Rights[10] calls attention to the two traditions. Finnis
task is half completed before he turns to an explicit treatment of rights but
he then observes that his whole book has been about human rights, which he
takes to be synonymous with natural rights. Indeed, The modern grammar
supple
and,
by
being
more
specific
in
its
standpoint
or
On the other hand, we can appropriately say that most human rights
are subject to or limited by each other and by other aspects of the
common good, aspects which could probably be subsumed under a
very broad conception of human rights but which are fittingly
In other words, we could say all we have to say using rights talk alone.
Thus it is that John Finnis provides an extended basis for his
contention that natural law and natural rights can be regarded as two sides
of a coin, related generally as duty and right. The modern use of right to
mean something someone has turns out to be simply a restatement of the
requirements of justice from the side of the recipient, so to speak. But it is
not simply that the old talk can be translated into the new, Finnis shows a
preference for the new and on occasion goes to some lengths to sing its
praises. [220-2 1][13]
C. ROUSSEAU ON RIGHTS
The Rousseau I have in mind is not Jean Jacques but Felicien, whose
1982 book, a masterful reading of the fundamental Thomistic texts on
natural law, conveys the spirit of the Faculte de Philosophie at Laval
University in its golden age.[14] In the course of his excellent book Rousseau
takes exception to a remark of dEntreves to the effect that Thomas
account of natural law lacks that which is distinctive of the modern age,
namely a doctrine of rights.[15] Au contraire, says Rousseau, and proceeds to
argue the opposite.
What rights does Rousseau imagine that Thomas teaches are grasped
by natural reason, even though he agrees that these cannot be transformed
simply into subjective claim-rights? His case for rights reposes on a remark
Thomas makes a number of times to the effect that, while sin obscures
natural law precepts having to do with love of God and neighbor, such
obscurity never extends to self-love and the love of ones own body.[16] Is
Rousseau suggesting that inalienable rights arise from self-love? Well, he
quickly dissociates Thomas from Locke, feeling the latter, under the
influence of a decadent nominalism would turn men into little divine
monads. For Thomas, man is by nature a sociable animal, made for living
with God and other men, according to his most proper inclinations. The
individual can claim natural rights only if he begins by recognizing his
duties with respect to the natural rights of others. From the outset, the
search by naturally sociable man for his natural rights is marked with the
seal of solidarity [163].
In short, Rousseau is suggesting a reciprocity of duties and rights. If I
am obliged to give another his due, the reverse of this is that he is obliged
to give me my due. Rights-claims make no sense apart from this social
Thus far I have sought to show that there is a fairly clear opposition
between those who see the rise of natural rights as an effective rejection
both of natural law and the presuppositions of natural law and those who
see talk of rights as more or less easily graftable onto the tree of natural
law.
Were one to take this simply as a matter of the interpretation of St.
Thomas Aquinas or the exegesis of Thomistic texts, a division of opinion
would swiftly make itself known. On the one hand, there is the emphatic
and generally authoritative voice of Dom Odon Lottin, who states quite
categorically that there is no trace of the modern sense of a right in the
decretist or theological literature of the twelfth and thirteenth centuries. In
those texts, ius preserves what Lottin calls its primitive, objective sense. So
too, while to modern ears law evokes primarily the notion of obligation,
the binding of the will of its subject, the decretists and theologians Lottin
has studied see law primarily as a principle of order, a rule of life, a norm
for
morality.
That
is
why,
he
concludes,
the
medievals
used lex and ius interchangeably.[18] Whenever St. Thomas speaks of what
we would call a right, he uses such terms as is licit (licitum) or power
(potestas), as when speaking of private property, self defense, etc.
Others have found such claims astounding, and advance texts in which
right in the subjective sense seems in play.[19] The efforts of Maritain, Finnis,
and Rousseau, as indicated earlier, are not isolated irenic efforts, but
representative of a school of interpreters of St. Thomas.
I mentioned earlier that Michel Villey seemed somewhat startled to
find that his Church had come to use the language of rights with almost as
much abandon as anyone else. Rights claims proliferated in conciliar and
other magisterial documents. InDonum Vitae, Cardinal Ratzinger spoke of a
right to be born by natural childbirth. The pleasure the Catholic might find
in mocking growing lists of human rights is dimmed when he finds the