On natural law and natural rights
Modern Age
Spring 1999

Authors: Ralph McInerny

Volume: 41

Issue: 2

Pagination: 174-178

ISSN: 00267457

Subject Terms: Nonfiction
Civil rights


McInerny reviews "The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law 1150-1625" by Brian Tierney and "Liberty, Right
and Nature: Individual Rights in Later Scholastic Thought" by Annabel
S. Brett.
Copyright Intercollegiate Studies Institute, Inc. Spring 1999

Full Text:

On Natural Law and Natural Rights

Ralph McInerny

The Idea of Natural Rights: Studies on Natural Rights, Natural Law and
Church Law 1150-1625, by Brian Tierney, Atlanta, Georgia: Scholars Press,
1997. 380 pp.

Liberty, Right and Nature: Individual Rights in Later Scholastic Thought,
by Annabel S. Brett, Cambridge: Cambridge UniversityPress, 1997. 254 PP

In Roman Law, right or ius was chiefly a property of things, their proper
relation, not a claim residing in individual agents because of their status
as human beings. This has its roots in Aristotle's conception of the right
or just thing, to dikaion. In recent centuries the notion of right has
become all but synonymous with claim-rights which inhere in persons as
such and which political arrangements must take into account. Everyone
agrees that this is a noteworthy change. How it came about is an intriguing
historical question. No one has cast more light on that question than Professor
Brian Tierney. The ldea of Natural Rights brings together hitherto ungathered
essays, many of them quite recent. Students of Tierney would be grateful
only to have easy access to "Villey, Ockham and the Origin of Individual
Rights," so that the dozen other studies make this book a feast indeed.

A few years ago in Rome, I picked up Michel Villey's Questions de saint
Thomas sur le droit et la politique. It was anew book (1987) and the author,
too, was new to me. I read the book on the plane coming home and was enthralled.
The book is largely a meditation on key articles in Aquinas's Treatise
on Law. Villey's approach was fresh, unusual, and, I perceived, related
by way of modification to previous things he had written. During the next
months I acquainted myself with some aspects of the vast scholarly production
of Villey. Did others know of him? In 19881 was a visiting professor at
Cornell and at a dinner party found myself seated next to Brian Tierney.
The name was legendary, but at the time I knew his work scarcely better
than I had known Villey's. At a given point in the conversation, it occurred
to me to ask Tierney if he knew the work of Villey. I will not say that
he levitated with delight, but clearly I had put the right question. To
that point, Tierney had been witty and entertaining; from then on, he became
authoritative and dazzling. A few days later he gave me an offprint of
the study of Villey that figures in chapter one in this collection.

If one were to seek a model of engaged objectivity in a scholar, this essay
would serve. Villey died in 1988 and it is doubtful that he was treated
more fairly by St. Peter than he had been by Tierney. It is possible, indeed
tempting, to pluck arresting sentences from Villey and try to read everything
he wrote in their light. Tierney paid Villey the enormous compliment of
seeing that the French scholar's thought had altered, that sometimes he
expressed himself more apodictically than at others, that his work represents
a precious and complicated achievement, however flawed. Villey had a tendency
to see the history of law as a declension from the clarity of Roman law.
Things began to go bad in the Middle Ages, went really bad in Second Scholasticism,
and, in modern times, have led to hilarious declarations of rights which
seem to be little more than whimsical wish-lists. There is something to
this account-and certainly the culminating criticism is well-founded.

It is in the historical period Tierney has made his own that Villey has
located the beginning of the dissolution. Villey is led, in his reading
of Aquinas, to insist on a distinction between ius and lex which, while
there, does not permit the use of natura humana mutabilis est that Villey
wishes to make. Tierney rightly summarizes, "It seems, then, that Villey's
case for a consistent distinction between droit naturel and loi naturelle
in Thomas cannot be sustained." If Villey had a keener appreciation for
the analogous use of terms in Thomas, something exhibited in Thomas's use
of both lex and ius, he might have maneuvered more effectively through
the texts. It is this either/or tendency in Villey which exposes him to
criticism and which dims what is undoubtedly a major scholarly contribution.

Admirers of modernity might be supposed to be ready to accept the view
that only recently have we managed to get it right about human beings and
social and political relations. Declarations of rights inherent in human
beings as such are a starting point that set the modern off from the pre-modern.
Critics of modernity might correspondingly agree on the contrast but insist
that the modern move is open to devastating objections. Villey, as Tierney
points out, was a structuralists before the fad, and insisted on the need
for a context, a network of practices, to provide the habitat of what is
a right. Somewhat similarly, Alasdair MacIntyre was able to dismiss the
very concept of rights by arguing that the carrier of rights is the unencumbered
individual; but there are no unencumbered individuals; therefore rights
do not exist, there being no carriers of them. Moral concepts, Maclntyre
insisted, require traditions and practices for their very meaning.

William Ockham provides Villey with the definitive turn away from the classical
notion of right. Nominalism and subjective rights are logically linked
by Villey, and this is a link that Tierney effectively questions. In doing
this, he makes a broader philosophical point. "We can define the relationship
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 respect of their children." Villey-like some disciples of
Leo Strauss, Tierney adds-is simply wrong in saying that the notion of
subjective right is logically incompatible with classical natural right.
As proof of their compatibility, he cites the work of Jacques Maritain
and of John Finnis.

If Villey's view is that the Middle Ages saw the beginning of the disintegration
leading to the chaos of modern legal theory, Tierney has a decidedly different
view. He counters Villey's denial that non-nominalist thinkers adopted
subjective rights and then says of subjective rights that "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." For all that, he grants Villey that there have been abuses
of rights language by many modern theorists, but invokes against him the
Thomist principle that abusus non tollit usum.

One of the great merits and attractions of Tierney as a scholar is that,
while insisting on the flaws of his opponent's overall position, he accords
him the respect of having a basis for what he says and thus in the end
finds room for a modified Villey within his own approach. What now of Tierney's
own position?

The passage quoted above could convey the idea that there are different
languages in which we can express the same legal truth-those of objective
right, moral precepts or subjective rights. Tierney is clearly impressed
with the work of Maritain in showing the fundamental compatibility of natural
law and natural rights. As with the work of Finnis, this suggests a kind
of conceptual or logical equivalence of the modern and the pre-modern.
Of course, if subjective rights are present even in Roman law, this contrast
of the modern and premodern may seem tendentious to the degree that it
is defined in terms of subjective rights. But is there anyone who would
wish to say there is not a difference in emphasis in Aristotle and Roman
Law, on the one hand, and those who draw up universal declarations of human
rights? Surely not. The claim of conceptual equivalence-that is, the claim
that one can express rights in the language of natural law-is a logical
and not an historical point. The presence here and there in antiquity and
in the early Middle Ages of an appeal to subjective rights must always
be linked to the more fundamental view that is captured in the theory of
natural law. It is not an alternative to it, but a feature within it. The
achievement of Maritain in Man and the State, arguing that natural law
and natural right are compatible, is undeniably impressive, and Chapter
8 of Finnis's Natural Law and Natural Right is perhaps the best available
statement of the mutual implications of rights and duties. But what does
this prove?

It is one thing to say that the traditional outlook, call it the natural
law universe, can accommodate the notion of subjective rights; these can
even be regarded as evolving naturally from it (Tierney) and making a major
contribution to it (Finnis), but this does nothing to address the fact
that modern natural rights theories were advanced as alternatives to natural
law. The natural law theorist may be able to express his views in rights
language, but would the proponent of rights be able to repay the compliment?
Of course Tierney does not want to suggest that the developments he has
done more than anyone else to chronicle and interpret amount to little
more than the fashioning of an alternative language. He speaks from time
to time of excessive proponents of subjective rights and seems to mean
those who do not have a view of the human agent which is the source of
those rights. But what is one to do with proponents of subjective rights
who are skeptical of or dismissive of the very notion of nature or of a
given order of things? Is Maclntyre perhaps a better reader of the signs
of the times in seeing conceptual chaos in rights claims that are unanchored
in a human nature?

Tierney's "Conclusion" to this collection makes it clear that he needs
no instruction on the excesses and limitations of rights talk. Furthermore,
by invoking Pope John XXIII's Pacem in terris, he makes clear his own understanding.
Rights and duties flow from the perception of human beings as endowed with
intelligence and free will. "The popes of our age, who have embraced so
enthusiastically the idea of natural rights, after their predecessors condemned
it for many years as an irreligious, Enlightenment aberration, have been
returning, unwittingly perhaps, to a tradition rooted in Christian jurisprudence
and philosophy of the Middle Ages." But the popes who adopt the language
of rights and those who condemn them are not in disagreement with one another.
Rights are condemned when they are forwarded on Enlightenment assumptions
hostile to and incompatible with Christianity; rights are invoked insofar
as they are attached to the perception of human nature Tierney cites. He
can sustain his irenic stance only by suggesting that it was the epigones
of the Enlightenment who invoked, doubtless unwittingly, a tradition rooted
in Christian jurisprudence and philosophy.

Tierney sees two major problems for human rights. First, the almost absurd
inflation of rights talk that had caught the attention of Villey, MacIntyre,
Mary Ann Glendon and others. Second, in many places the most elementary
rights are denied subject peoples. But it is the conceptual problem that
remains the most fundamental. However true it may turn out to be that the
medieval roots of rights theory of which Tierney has been the principal
historian is not a product of "atomistic individualism," however true it
is that rights theory could in the medieval period coexist with quite different
metaphysical outlooks, the common belief in man as created in the image
of God underwrote the conviction in the existence of a human nature. Tierney
has argued that Ockham's nominalism is logically independent from his contributions
to incipient rights theory, and vice versa. But the question remains whether
Ockham's metaphysics is not radically incompatible with the basic underpinning
of his moral theory.

Professor Brett's Liberty, Right and Nature concentrates on individual
rights in later Scholastic thought. She gives us a close study of a pair
encountered in Tierney, dominium and ius, and argues that while originally
equivalent in the Franciscan poverty literature and providing a link between
property and liberty, and rooted in the positive dignity of man, the equivalence
becomes diluted in the casuisitc literature to a juridical hold over a
thing or person and was expanded beyond spiritual beings to all of nature.
Nonetheless, Francesco de Vitoria ignored this diluted casuistic understanding
and returned to the earlier reliance on spirituality, reflexivity, and

The chapters concentrate on particular centuries, but do not follow chronological
order; the chapter on the fourteenth century precedes the chapter on objective
right in the Thomist tradition, but then the account extends beyond the
thirteenth century. Chapters three and four are particularly interesting,
but then the whole book is interesting. Brett brings a sharp and knowledgeable
eye to everything she treats, and casts new light on even apparently well-worked
subjects. Her pages on the relevant chapters from the Summa theologiae
on ius and lex are packed with sentences and paragraphs which could have
been expanded far beyond the space she devotes to them. This gives them
at once a praiseworthy pithiness and a teasing tendentiousness. Often this
is because she accepts without rehearsing them the arguments of others.
For example, she accepts Gauthier's claim that Thomas's commentary on the
Sentences relates to the moral part of the Summa theologiae as expositio
to quaestiones. And, in agreeing with John Finnis that the natural inclinations
so important in the Summa theologiae Iallae, q. 94, a.2 do not involve
a hierarchy, she says they do involve a "series." And then we find this
sentence: "Thus those things to which irrational natures incline and which
constitute their goods are equally goods to which rational natures incline
and, and not in any sense lesser or subordinate goods." This is a non sequitur
which trades on the amphibolous use of "equally." But it would be churlish
to leave the impression that Brett's is anything other than a book from
which anyone can learn and which proceeds with a care and taste for the
truth that is wholly admirable.

Both Tierney and Brett, in their different ways, subscribe to the view
that the once received opinion about the ravaging effects of nominalism
has been overturned by recent scholarship. (A version of this can be found
in Servais Pinckaers's The Sources of Christian Ethics [1985], 191-323).
Still, both scholars refer respectfully to Michel Bastit's La naissance
de la loi moderne, which is an energetic rearguing of the thesis of Villey.
It could be said that Bastit does not confront the obstacles to his thesis.
It must be said that the whole matter of the relation between casuistry
and moral theology, between the moral theologians and the expositors of
the Nicomachean Ethics, and of the correct comparison between members of
the two great mendicant orders, is very much still on the table. On the
outcome of that continuing discussion will depend what can defensibly be
said of the relationship of modernity to its predecessors. The magnificent
scholarly work of Brian Tierney and now Annabel Brett will be at the center
of the discussion. Kibitizing will be those who, like the reviewer, retain
a perhaps visceral preference for the Michel Villey approach.

RALPH McINERNY is Michael P. Grace Professor of Medieval Studies and director
of the Jacques Maritain Centerat the University of Notre Dame. He is the
author of many scholarly works as well as popular fiction.