(Abstract: To say that there is a moral right to act in a certain way is to say that there is a presumption that such acts are morally right, which implies that others should not blame, punish or deliberately obstruct. A community’s recognition of such rights is a way of reducing conflict among its members. Natural or human rights are rights that ought to be recognised in every community. Statements of natural rights are not analytic; they may be self-evident, at least in the sense that everyone can easily see the usefulness of recognising such rights. The concept of a right has not changed since the middle ages and neither have the kinds of justifications given for recognising rights. Medieval moralists clearly recognised the human freedom presupposed by all ethical and legal systems and valued the liberty that consists in not being excessively constrained by legally and socially enforced duties. In modern times more recognition has been given to the rights of conscience, and this has led to some attempt to formulate duties we have toward conscientious agents whose actions we cannot accept as morally permissible.)
A revised version of this paper has been published in Virpi Mäkinen (ed), The Nature of Rights: Moral and Political Aspects of Rights in Late Medieval and Early Modern Philosophy (Acta philosophica Fennica 87 (2010), pp. 31-62).
Contents
Historians of European political thought have for some time been interested in the question, when did the concept of a right,[Note 1] of a natural right in particular, come into use in Europe? The history of this discussion would begin, I think, with Michel Villey, who claimed that the inventor of subjective rights was William of Ockham. Another influential contribution was Richard Tuck’s book Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge U P, 1979). Tuck suggested that the originator was not Ockham but Gerson. Beginning in 1983 with an article, "Tuck on Rights: Some Medieval Problems", Brian Tierney has published an important series of studies showing that the language of rights goes back to the canonists of the twelfth century, and that philosophers, theologians and publicists imported rights language from the law into their own work during the fourteenth century—neither Ockham nor Gerson was the first to do so, having been anticipated by Harveus Natalis and Marsilius. Others have also published studies on the history of the language of rights, including Steve McGrade, Annabel Brett, and Virpi Mäkinen and others centred in Helsinki.
One of the things at stake for historians of rights language is the role of medieval thinkers in the development of modern political thought. Medievalists are often irritated by the common assumption that the modern world began with the Reformation and the Renaissance. Protestant and secular historians, who are generally very positive in their evaluations of modern European culture, continually ignore or downplay medieval contributions to its development. Sometimes they mention Thomas Aquinas, but they seldom take any serious look at other medieval writers. Medievalists I think are united in believing that (for better or worse) many of the most important institutions and ideas of the modern world go back at least to the Renaissance of the 12th century.[Note 2] In the matter of rights, the admirers of the modern world may contrast modern conceptions of rights, in which a right is an expression of individual autonomy, and medieval conceptions, in which right is said to be based on duty to God. Since the concept of a right is said to be "theory dependent", this contrast implies that when medieval writers used the language of rights it did not mean what it means to us. That the medieval thinkers thought only of duties is one of the misconceptions Tierney wants to correct: "Although the idea that medieval natural rights could only be rights to obey the mandates of natural law is often taken for granted in modern writings, I cannot recall any medieval text that makes this assertion. Instead, when we turn to the earlier sources we encounter a long tradition… that emphasized choice rights as well as the fulfillment of duties".[Note 3] The practice of using Thomas Aquinas as the only stepping-stone between the ancients and the moderns contributes to the misconception, since Thomas did not make use of the notion of subjective right, although that notion was already available in medieval thought. If Thomas is taken as the standard Medieval, then it looks as if there was a watershed after Thomas Aquinas. Tierney remarks: "the ‘watershed’ did not come after Aquinas".[Note 4] Tierney’s narrative is that the notion of subjective right is found in the 12th century canon lawyers, was for some reason not used by Aquinas, was taken over into theology and political thought in the 14th century (and not first by Ockham, though he may have been the first to develop a rights-based political theory); since the 14th century it has a continuous history into modern times.
One of the strengths of Tierney’s work is of course his acquaintance with a wide array of texts. But his other great strength is his acquaintance with the analyses of the relevant concepts made by recent writers on jurisprudence and philosophy and his own skill in such analysis. No one can construct a history of natural rights simply by going back through texts. Historians need to understand what the concept of a natural right is, or the several concepts if the term is ambiguous, and what the philosophical issues are in connection with natural rights, so as to recognize which texts are relevant.[Note 5] We also need philosophical analysis to guide our interpretation of the wider cultural significance of the development of rights theories. In this paper I will concentrate on some questions of philosophical analysis rather than on texts. Throughout I will be concerned with moral rights and not, except incidentally, with legal rights. I will criticize some of the philosophical opinions that have influenced historical research and interpretation, for example the opinion that the concept of a right is "theory dependent". I will try to say what rights are, as this English term is used in our own time, and how rights are justified. I will discuss certain medieval definitions of ius in the sense in which it seems equivalent to the English term "a right", and I will consider some possible relationships between natural rights and natural law. I will suggest that the question when subjective rights were first acknowledged is not as important for the history of culture as has sometimes been supposed; long before the language of rights came into use, moralists had recognized and valued human freedom and individual discretion.
What is a moral right? A first approximation to an answer is this: If we say that someone has the right to do something, we mean that the action is "right", i.e. not wrong, morally permissible. But then, why talk about rights at all—why not just talk about actions that are right? What the first approximation misses is that an act one has a right to do belongs to a class of actions recognised by the community as (prima facie) permissible; that is, the community is agreed that when a person does an individual act belonging to that class, there is a presumption that that individual act is morally right. But this is not quite right either, since there are human rights or natural rights that in some sense "exist" which some communities do not recognise. To provide for these, we must say that there may be rights that ought to be recognised in any community. This is the definition I suggest for a right: if a person has a right to do something, then that act belongs to a class of acts that is, or ought to be, recognised by the community as prima facie permissible.
A right, when it is actually exercised, triggers certain duties on the part of other people; but the duties are not part of the concept of the right. It is sometimes said that rights and duties are correlative;[Note 6] I do not say this; I think that the dependence is from right to duties and is not reversible: the fact that some people have duties that benefit some other person does not constitute a right on that person’s part; also, the duties do not arise from the bare existence of the right, but from the decision to exercise it.
What are these duties? An early modern author with something to say on this subject is Pierre Bayle. His Philosophical Commentary on These Words of the Gospel, Luke 14.23, "Compel Them to Come In, That My House May Be Full" convinced many in Europe to recognise the "rights of conscience", i.e. the rights of religious people to do what their consciences dictate, without being coerced or persecuted. This religious freedom was extended during the 19th and 20th centuries to moral freedom, i.e. freedom to live as one chooses, to make different "experiments in living", to use Mill’s phrase.[Note 7] Bayle’s book is one of the foundations of modern liberalism. Bayle’s conception of the duties others have in consequence of a right seems to be this.[Note 8] If someone has a right, or believes he has a right, others have duties not to blame or punish what that person does in exercise of this putative right, even if they think that his belief is mistaken.[Note 9] But, Bayle says, we do not always have a duty to allow people actually to do what they believe they have a duty and therefore a right to do. Some people’s consciences tell them to persecute unbelievers, to kill apostates, to carry out human sacrifice, etc.: we must prevent them from doing such things. According to Bayle, respect for the rights of conscience means not blaming or punishing people for doing or trying to do what they believe is their duty to God, and, if we have to prevent them from doing it, preventing them in ways that do not tempt them to consent to anything against their conscience (e.g. we should use physical restraint, rather than threats or inducements), and respecting them for their efforts to do what they think is their duty to God even if we must prevent them from doing it.
Bayle is concerned with problems that arise within a community when people radically disagree about morality and religion. This is a topic to which I will return. But let us focus first on the more typical case. Let us suppose that we accept that a person truly has a right and that what they are doing is truly an exercise of that right. I suggest we would say in that case (following Bayle) that other people have duties not to blame, punish or retaliate, and (since they really have the righ) also a duty not to obstruct deliberately. By obstruct deliberately I mean do something precisely and solely for the purpose of obstructing. (This does not rule out obstruction when it is a side effect of exercising our own rights or seeking our own legitimate goals.) Some rights may mean more than not punishing etc. or deliberately obstructing.[Note 10] In some cases we may be obliged not only not to obstruct deliberately, but even to get out of the way, or to give positive assistance, or to supply goods or services.[Note 11]
As I suggested earlier, the core of the concept of a right is the presumption that an act done in exercise of the right will be morally permissible. The permissibility of the act is the reason why others have duties not to blame, punish, retaliate or deliberately obstruct. There are general duties not to blame, etc. any morally permissible action—these would be duties even if there were no such thing as a recognised right. If the exercise of the right is morally right, then others will have duties not to blame etc. by virtue of these general duties.[Note 12] The duties are not part of the concept of a right, they are another element of morality prior, in time and logically, to the recognition of rights.
However, the term "a right" is not just a way of referring to morally right actions. We do not think that every morally right action is the exercise of a right. What does it add to say that a right action is the exercise of a right? As I noted earlier, there is a distinction between (1) the permissibility of an individual act, (2) a right that a community ought to recognise, and (3) the rights a community or sub-community does recognise. Similarly there is a difference between (1) the wrongness of an individual act (so that it might be said to be a breach of moral duty), (2) a duty a community has good reason to recognise and enforce, and (3) the duties the community does enforce. The first member of each of these distinctions is an individual act that is morally right or wrong, the other two are classes of acts marked out by abstract descriptions ("returning a thing to its owner", "killing an innocent person"). Individual instances of a class of acts described in abstract terms will sometimes all be wrong (murder, for instance), sometimes right (e.g. saving a life), sometimes some instances will be right and others wrong (e.g. offering someone something to drink). It may be that no kind of action is always right in all its individual instances. (Is it right to save the life of a person who has tried to commit suicide?) But there seem to be some general descriptions that imply pro tanto, even if not definitively, that an act of that description will be right. These are the types of action that the community might recognise as actions people have a right to do.
Community recognition strengthens the position of the person with the right ("Rights are Trumps").[Note 13] It is as if one can say, "What I am doing belongs to such-and-such a class of acts, and you have agreed beforehand that there is a presumption in favour of the permissibility of such acts—if you obstruct what I am doing you are going back on that agreement". Community recognition is not simply a speculative acknowledgment that acts of a certain kind are very likely to be morally permissible; it is an assurance to right-holders that, unless there are special circumstances justifying the overriding of the right, other members of the community will accept that the rightness of the act has already been decided. In view of the strong priority of a rights claim, a community would do well not to acknowledge rights too readily. The value of rights as a means of increasing cooperation and reducing conflict is compromised if the rights themselves are too often contentious, either in the sense that many people in the community do not recognise such a right at all or in the sense that the rights are acknowledged in such vague terms that their application is often unclear. It is also compromised if the rights acknowledged are too often overridden in particular cases by contrary considerations. It would be better to acknowledge a reasonably short catalogue of clearly stated and generally agreed rights not likely to be overridden too often, so that the invocation of a right really would settle a dispute, instead of leading to dispute about the right itself.
However, a right may not be absolute. Rights are defined in general terms, and an act of a kind that is generally good may be wrong in certain circumstances. People will therefore sometimes judge that an act to which there seemed to be a right in fact should not have been done.[Note 14] Here we can draw on W.D. Ross’s notion of prima facie rights and duties.[Note 15] Ross wrote mostly about duties. We have a duty to keep our promises, but we also have other duties that may come into conflict with the duty to keep a promise—a medical doctor may promise to take his children to the beach but then be called on for a medical emergency. Ross suggests that a rule of duty imposes merely a prima facie duty that may turn out not to be one’s actual duty if there is some overriding consideration. Similarly with rights: in some cases there may seem, prima facie, to be a right, but when we consider all the circumstances we find that the right was not actual.
According to Ross, when a prima facie duty is overridden, there may still be some residual duty. If a promise has been overridden by something more urgent, we may still be obliged to "make up for" not performing the promise. Recognised rights are also like that: if we judge that what the person did who seemed to have the right was in fact wrong, this is not the end of the story. We will not have the duty not to obstruct that we would have had if the right had been actual, but there are residual duties along the lines suggested by Bayle’s treatment of the case of conscientious persons who must be stopped from obeying their conscience. If someone does something wrong thinking that it is within their rights, their good faith should be acknowledged, they should not be blamed in a punitive way,[Note 16] they should not be punished in any way, we should not hold their action against them for the future. About the details of the residual duties there will be disagreement, and the elaboration of these residual duties is part of the on-going development of a community’s positive morality, but I think there will be agreement that people who do something wrong in the honest belief that they were exercising a right should not be treated simply as wrongdoers.
The residual duties are included in the assurance the community gives in recognising a right. We assure one another that even if in the particular circumstances some members of the community think the act is after all wrong, their adverse reaction will be tempered by the duties that are residual even when a right is overridden. It is as if the community says to us something like this: "If you exercise one of your rights, normally we will acknowledge that you have acted rightly, and therefore we will not blame, punish, or obstruct—but even if we decide that in the circumstances your action was not right, if we believe you acted in the honest belief that you were within your rights, we will not punish and we will temper any blame we might otherwise have expressed" and so on. It is a long speech, but I suggest that something like this is tacitly conveyed by the acknowledgment of a right.
Tolerance, and especially religious and moral tolerance, are not found in all communities, at least not in the same degree. We are not so likely to find in medieval authors the reflections we find in Bayle and more recent writers on how to treat people who make honest mistakes, though medieval writers did have something to say about this. (See below.) But even it were only in modern times that moralists have tried to deal with honest disagreements or mistakes about rights, that would not imply a change in the concept of a right. The community’s list of recognised rights, the duties triggered by exercise of a right, and the duties that are residual when the exercise of a putative right is judged to be wrong in the circumstances—none of these is included within the concept of a right. A right is a kind of action that a person can, generally, rightly do. The term has the same meaning, whether or not everyone in a community recognises the same set of rights, whether or not they all agree about which are the duties on the part of others that the exercise of a right triggers, whether or not they acknowledge any residual duties in cases in which the right is judged to be non-operative.
Some who have written on this subject have criticised some analyses of rights because they seemed to imply that the terminology of rights could be eliminated altogether.[Note 17] If that is an objection, my analysis may seem open to it, since it may seem that the real work in my account is done by the idea of the duties other people have when the right-holder decides to exercise the right. Let me emphasise, however, that these duties are triggered by the exercise of the right.[Note 18] In the traditional dispute between "will" and "interest" theories of rights, the "will" theory seems to be correct. To have a right is not simply to be the beneficiary of duties other people have anyway, whatever the right-holder may decide to do or not do. The duties of others relating to a right depend on the right-holder’s decision whether to exercise it. If we judge that the act done in exercise of the right is, in the particular circumstances, not morally right, it is, again, the actor’s decision that triggers what I have called the residual duties. This is true even if the right is one that cannot be waived because it exists to enable performance of a duty, for example the rights of a parent. If a person with a duty to exercise such a right fails to exercise it, perhaps through negligence, then the corresponding duties of other people will not be actual. They may have other duties instead, e.g. to make up for the negligence of the person who ought to have acted.
The rights of infant children and of persons in a coma, who cannot decide or take action, may seem an objection to this view.[Note 19] These are not typical cases; normally we assume that people who have a right will exercise it themselves. We have some choice about what to say in the atypical cases. We could decide to speak simply of the duties we have to care for children and helpless people and not speak of their rights—after all, there are many duties that do not arise out of rights. If we do decide to speak of the rights of infants, then we may say that their rights are exercised on their behalf by some competent person, and it is that person’s decision to exercise the right that gives rise to the corresponding actual duties on the part of other people. There may also be other duties, not arising from exercise of the right, but existing in relation to the right: for example, it may be that certain people have a duty to act on the child’s behalf, it may be that every member of the community has a duty to support arrangements for the care of children. Such duties do not arise from the exercise of the right, though they exist to support the right by making sure that someone will exercise the right on the child’s behalf. Exactly how we deal with such cases is open to discussion.
To sum up the modern conception of a right, as I understand it: (1) To say that a person has a right to do something means (a) that there is a presumption that the act will be morally right or permissible, and (b) that the community recognizes, or ought to recognize, that such acts are, in normal circumstances, permissible. (2) If the right is actual and the right-holder decides to exercise it, then others will have certain duties—namely, the duties anyone has not to blame, punish, retaliate or deliberately obstruct a morally permissible action, and perhaps, with some rights, a duty to get out of the way, to assist, to supply something, etc. (3) If the presumption of permissibility is defeated and the right is not actual in the circumstances, other people will have certain other "residual" duties, which I have not tried to define too closely. Points (2) and (3) relate to duties arising from exercise of the right and are not part of the concept of a right. Point (1) amounts to a "contextual definition" of the term "a right".
Medieval writers had a concept of right equivalent to the first of these three points. They did not refer to a defeasible presumption of the rightness of acts of a certain kind, but they had the equivalent conception of acts generally right but possibly wrong in particular circumstances.[Note 20] As far as I know they did not refer to community recognition—I think because they were writing about recognised rights and took recognition for granted. As for point (2), duties triggered by exercise of the right, they certainly thought that we should respond appropriately to the rights of others, for example by feeding someone in danger of starvation, but they do not seem to have elaborated any general account of the duties that correspond to rights. And they did not refer to point (3), what I have called residual duties—perhaps because they did not pay much attention to the possibility of honest mistake. In this matter I think seventeenth century writers did introduce new ideas. Do these differences amount to a change in the concept of a right since the middle ages? Does the addition of explicit references to a presumption, and to the duties of others, amount to a changed concept? I do not think so. The core concept of a right, that it is a kind of action generally permissible, has not changed, and I think the other points are complementary, not a change of direction.
As I suggested earlier, a right in the modern sense is possible if we can specify classes of acts that are generally permissible. Medieval moralists, Thomas Aquinas for example, distinguished between acts good in their species, acts evil in their species, and acts morally indifferent in their species. The phrase "in their species" indicates that the reference was to a kind of act, not to an individual act.[Note 21] An individual act of a kind that is evil in its species cannot be morally permissible under any circumstances. An act good or indifferent in its species, to be morally permissible, needs to be good in all other respects,[Note 22] i.e. in all its circumstances.[Note 23] Of an act that is good or indifferent in its species there is a defeasible presumption of moral rightness. This opens the possibility of recognising a right.
Ius is the medieval Latin term for a right. Tuck and Tierney have shown that many medieval and early modern writers defined a ius in general,[Note 24] or this or that particular ius, as potestas licita, a "licit power".[Note 25] Sometimes instead of the adjective they used the adverb, potestas licite, a "power to licitly" do something or other.[Note 26] In the translation John Scott and I made of Ockham’s Work of Ninety Days the word "power" occurs over 500 times, mostly as a synonym for "right". In 75 of these instances it occurs in the phrase "licit power", which Ockham uses especially when giving a formal definition of some right.[Note 27]
What sort of a power could a right be? Medieval thinkers recognised passive powers or potencies, e.g. the potentiality of a lump of brass to be moulded into a statue. Clearly a right would not be a power in that sense.[Note 28] They also recognised active powers, such as the intellect as a power (or faculty) of the soul, or the capacity of a natural cause to produce an effect (e.g. the power of fire to boil water). A right is not an active power of this sort. Often people have power to produce effects they have no right to produce; on the other hand, having a right gives no power to produce an effect that one could not otherwise produce. A drivers licence gives you a right to drive, but if you do not have access to a car then you cannot drive.
The only sort of power a moral right could be, as far as I can see, is the moral equivalent of a legal power. If an office holder has the legal power to do something, that means that, if they decide to do it and can actually do it, then they will not commit any illegality. Similarly, to say that someone has a moral right to do something means that, if they decide to do it and can actually do it, then (normally) they will not do anything morally wrong.[Note 29] The key word turns out to be not potestas but licite, and potestas is actually redundant—"you have the licit power" means that your action will be licit, i.e. permissible, not morally wrong. Thus the medieval conception of a right seems to coincide with ours. As I summed up the modern concept earlier, when we say that someone has a right we mean that there is a presumption that anyone who exercises the right will be doing something morally permissible. "Ius is a power to licitly…" is equivalent to, "If someone has a right to do so-and-so, then (there is a presumption that) if they do it, the act is licit", i.e. morally permissible. Medieval authors would not have been satisfied with a contextual definition; they wanted definitions by genus and specific difference, and in such definitions the genus is a noun or equivalent. Potestas is the noun, but the defining idea is that an act done in exercise of a right is licit.
In modern thought a right establishes a presumption, which in the particular case may not hold. Similarly according to one medieval thinker, namely Ockham, even one of the basic natural rights may possibly be overridden, namely the right to use material things. This possibility is essential to his account of property, according to which the natural right every human being has to use material things may be "tied" by human positive law. On the other hand, the right of the property owner, established by human law, is also subject to exception: in a situation of necessity, when preservation of life requires use of someone else’s property, the owner’s right to exclude other users is overridden.[Note 30] So of both the natural right and the right under positive law, it is true that the right does not hold in certain circumstances. According to Thomas Aquinas and others, acts that are good in their species may be bad in particular circumstances; they would have conceded that the exercise of a right may sometimes be wrong.
We are more concerned than medieval moralists were with the possibility of honest mistakes about rights. According to Aristotle, followed by medieval writers, a mistake on a matter of fact may excuse an act—if I mistake a man for an animal and fire my arrow, I may kill a man but the homicide may be excusable.[Note 31] But, Aristotle says, ignorance of a moral principle is never an excuse—"every wicked man is ignorant of what he ought to do";[Note 32] and most medieval writers agreed.[Note 33] Ockham did not altogether agree. According to him, some laws of nature "are inferred from the first [i.e. fundamental] natural laws by few even of the experts, with great attention and study, and through many intermediate propositions. About these even experts sometimes have conflicting opinions, some thinking them to be just and others unjust; and ignorance of such a natural law excuses… unless the ignorance is affected or crass and supine".[Note 34] But by and large, the only mistakes medieval moralists were prepared to excuse were mistakes of fact, and I do not think any medieval writer elaborated an account of residual duties others may have when they reject a person’s claim to have been exercising a right.
Let us consider how the recognition of a right may be justified. There has been an accumulation of philosophical material as time goes on, so modern justifications are often fuller and more elaborately developed. But otherwise modern and medieval justifications do not seem to differ much. Both include claims of self-evidence and arguments in terms of usefulness.
The most famous claim to self-evidence runs as follows: "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".[Note 35] Medieval writers also claimed self-evidence for principles of natural law and by implication for natural rights.[Note 36] According to Thomas Aquinas, the basic principles of the natural law are practical truths per se notae, "the predicate of which is contained in the definition (ratione) of the subject".[Note 37] Other medieval writers held similar views. According to Thomas other theorems of natural law and morality are derived by deduction from the basic principles, and the rules of positive law are sometimes derived from natural law "by way of determination".[Note 38] Scotus also says that some principles belong to the natural law "as first practical principles known from their terms or as conclusions necessarily entailed by them. These are said to belong to the natural law in the strictest sense", and they are indispensable and immutable.[Note 39] According to Ockham, "Nonpositive moral learning is a demonstrative science" because it "deduces conclusions syllogistically from principles that are known either per se or through experience… In moral philosophy there are many principles that are known per se, e.g., that the will ought to conform itself to right reason, that every blameworthy evil is to be avoided, etc."[Note 40] John Locke also believed that morality is a demonstrative science based on self-evident principles.[Note 41] But propositions like "Good is to be sought and evil avoided", "The will ought to conform itself to right reason", "An innocent person who never did harm should not be killed", etc., do not seem to me to fit this account. I do not see how the predicate is included within the definition of the subject. However, they might be self-evident in some other way, namely in the sense self-evidence has in intuitionist theories of ethics,[Note 42] i.e. in the sense that anyone who reflects can simply "see", without needing argument, the truth and obligatoriness of the basic principles. An intuitionist might say that anyone who reflects will see, without argument, that certain natural laws and natural or human rights ought to be respected, everywhere and always.
But perhaps intuition does not come to bear directly on rights and duties but only indirectly through the consequences that recognizing rights and duties may have. For example, life, liberty and happiness are obviously good things, so it may seem self-evident that we should recognize rights that safeguard life and liberty and enhance happiness. The self-evidence of rights may be reducible to obvious usefulness. So let us turn to the other kind of justification, justification in terms of usefulness. Modern writers have often used this sort of justification. According to J.S. Mill, for example, "To have a right… is… to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility."[Note 43] Mill means that something is socially recognised as a right if, on balance, the benefits for human happiness likely to result from recognising it are likely to outweigh the costs that will occasionally result in particular cases.[Note 44] The earliest clear presentation of such reasoning is, as far as I know, David Hume’s account of the origin of what he calls the three fundamental laws of nature: stability of possession, transfer of possession by mutual agreement, and promise keeping.[Note 45] On Hume’s account these fundamental laws are conventions that people have agreed to because of expected benefits. He notes that what the convention requires or permits may not be beneficial in every case. "But however single acts of justice may be contrary, either to public or private interest, ‘tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual…. Tho’ in one instance the public is a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule."[Note 46] So in the Hume-Mill approach, we recognize various rules that establish duties and rights, in the expectation that if these rules are steadily prosecuted the members of our community will benefit, all things considered. Reasoning in terms of the predominantly good consequences of recognising a proposed right is of course at home in Utilitarian and other Consequentialist ethical theories, but it is not peculiarly consequentialist. It does not imply or presuppose that no act is ever good except by reason of good consequences (which is what I take to be the basic tenet of consequentialism). In every ethical theory, as far as I know, some acts count as good because of their consequences.
In deciding what is useful we need to know what is good.[Note 47] We need some basic principles about the good that are accepted, at least for the time being, as self-evident, if not in the sense of per se notae, then intuitively. Guided by ideas of what is good, we consider good and bad consequences in deciding which rights and duties should be recognised.
The goodness of consequences need not be conceived in terms of pleasure and pain; whatever people count as a good consequence may provide a reason for recognizing some right or duty. For example, we might regard diversity as a good thing in itself (influenced perhaps by what A.O. Lovejoy called the "principle of plenitude"),[Note 48] and we might regard diversity of languages and cultures as good in itself, quite apart from any social benefits: then rights and duties that encourage such diversity would count as beneficial—not necessarily to human beings, but as beneficial perhaps in another way, as contributing to the rich diversity of the universe. This might lead to recognition of rights favouring the preservation of minority cultures and languages.
One benefit that gives reason for a community to recognise a right may be reduction of conflict. Judging whether an individual act is morally right or wrong is not always easy. If I am contemplating some action, I may wish to know beforehand whether other members of my community are likely to accept it as morally right or condemn and obstruct and perhaps retaliate against it as morally wrong or simply as contrary to their interests or wishes. Even if I am reasonably confident that what I am contemplating is morally justified, I might want more assurance that others will think so too. Knowledge of the catalogue of rights and duties recognised in the community gives some increased degree of confidence about the judgments other people are likely to make of the action contemplated. Even before the language of rights was invented, peaceable communities must have had some way of expressing shared understanding of which sorts of behaviour would be likely to be acceptable and which not.
Medieval writers offered no justification for some natural rights—for example, the right to make use of material things to preserve one’s life is, as far as I know, never disputed and never justified; it is taken as self-evident. They justified some rights in terms of usefulness. For example, they regarded property rights as being in need of justification, since laws recognising property impose limits on the natural right to use material things. The justification was generally borrowed from Aristotle, who argued that private property was useful in preventing quarrels and neglect, and useful in other respects: his argument was in terms of beneficial consequences, not in terms of propositions per se notae.[Note 49]
I have been arguing against the view that medieval rights and modern rights are rights in different senses. I have suggested that subjective right is a genus of which there are many species, and I have claimed that in its generic sense the term "a right" in English and in Latin "ius" in one of its senses had the same meaning, and I have said what I think that meaning is. I have denied that the concept will be different if the justification offered is different, but I have suggested that in any case both during the middle ages and in modern times the same sorts of justifications have been offered, and I have said what I think those justifications are. So far I have not said anything about natural rights specifically, and it may seem that my account of what a right is leaves no room for natural rights. That is the topic I turn to next.
A "natural" right seems to be the same as a "human" right, and a human right is a right that ought to be recognized universally, i.e. as belonging always and everywhere to every human being simply as a human being, not as a member of this or that community. Similarly natural law is law that applies everywhere and always, independently of any human decision; it cannot be entirely obliterated from the human mind, but it may be greatly obscured by vice and bad customs, so some people in some places may not acknowledge some of its requirements.[Note 50] There is an obvious parallelism between the two theories.
One way of thinking of natural rights is to say that they are the rights that exist under natural law.[Note 51] In early modern political thought a connection was explicitly made between natural law and natural rights. They defined the state of nature as the condition in which human beings live without government and without positive law, guided only by the laws of nature. For Hobbes the laws of nature mandate individual survival, for Locke they mandate the preservation of all mankind as far as possible, and consequently Hobbes’s state of nature is violent whereas Locke’s is more sociable: but both agree that natural law is the only law in the state of nature. In that state people have rights, the right of self-defence, the right to enforce the law of nature (according to Locke), the right to eat and use material things (even other people, according to Hobbes), and people in the state of nature have the right to leave that state by establishing government and positive law. Medieval writers referred to two early states, namely the state of innocence and the state between the fall from innocence and the establishment of government and positive law. The second resembles the early modern state of nature. In the first, the state of innocence, there was no conflict—there would have been no occasion for self-defence, because no one would have attacked anyone else, no occasion for property, because people would have made moderate use of things and not interfered with one another’s use,[Note 52] and no occasion for coercive government.
If the medieval and early modern project of a natural law based on principles per se notae fails because there are no such principles, where does that leave natural rights? They rest on obvious usefulness: a natural right is one that ought to be recognised always and everywhere because its recognition would always and everywhere have good effects.
Part of morality seems to be historically variable, and the other moral rights, apart from natural rights, belong to the variable part. Perhaps we need some conception like positive morality (on the analogy with "positive law"). I do not mean just that in some communities people have strange and mistaken moral ideas, I mean that there are quite rational and defensible moral conceptions that have emerged in their culture, appropriate to their historical and local circumstances, which members of those communities ought, really ought, to respect. For example, the laws of war, such as the prohibition of deliberate attacks on civilians, and in fact the distinction between civilian and non-civilian, have not been recognized always, everywhere and by everyone, not only because of failures of insight but also because the social circumstances in which those things become appropriate have not always existed. There is a medieval concept we can use here. What I am calling positive morality would have been classed by medieval writers as custom, custom with normative force, and they regarded such custom as a kind of positive law. One branch of human positive law was the ius gentium, the law of peoples, consisting in the laws or customs observed by all peoples, or almost all peoples. Ockham distinguished three modes of natural law, the third of which he calls "natural law on supposition": it consists in the moral norms that right reason suggests on the supposition of certain circumstances.[Note 53] The prime example is property: the institution of property has not always existed; it came into existence by human decision, because of its obvious usefulness after the loss of innocence.[Note 54] Ockham suggests that the ius gentium, the law of peoples, or at least the most basic part of the law of peoples, overlaps with "natural law on supposition" (though there may also be natural laws on supposition that do not apply to all peoples and are therefore not part of the ius gentium). What I have been calling "positive morality" could be called natural law on supposition, and rights could be regarded as part of that natural law. Natural law on supposition is adapted to the human condition after the Fall. Looking back from our fallen state, we may refer to some principles operative in the state of innocence, such as the permissibility of using material things, as "rights", but in the state of innocence there would have been no conflict, and therefore no reason for the community to recognise rights: people would in each case do what was morally permissible, and other people would recognise its permissibility (perhaps after some discussion); what the concept of "a right" adds to "right" would not have been to the point in the state of innocence and there would have been no occasion for such a concept. Natural rights or human rights belong to the ius gentium, the (almost) universal norms of natural law on supposition—on the supposition of a fall from innocence and a state of at least potential conflict—and the more local and temporary rights belong to the part of natural law on supposition that applies in more special circumstances.
So we can say that natural rights are natural in the sense that natural reason will suggest to human beings in a situation in which all, or almost all, human beings will find themselves, at least after the Fall, namely the situation of actual or likely conflict with other people, that it is useful to recognize and respect such rights, and also in the sense that once the right is recognized by the community, natural reason suggests that people who act on the right should not be blamed, punished or deliberately impeded and that (in some cases) certain other duties should be performed by other people.
In the rest of this paper I will criticise an argument meant to show that the medieval conception of rights is essentially different from the modern conception. The argument goes like this: The concept of rights is "theory dependent", i.e. the meaning of the concept depends on the theoretical context in which it is used; but the medieval concept of a right was of something that enabled one to obey God’s law, whereas the modern concept of a right is a claim to self-determination—an assertion of liberty, of sovereignty, of power to legislate what is good for oneself; therefore the iura that medieval authors talk about are essentially different from the rights recognised in modern political thought. Some of my criticism will be directed against points made by Brian Tierney. Tierney does not himself subscribe to the thesis that medieval and modern rights are essentially different, but in arguing that they are not he does at some points (I believe) concede too much to those who see rights as an expression of the right-holder’s sovereignty.
In the 1960s philosophers of science often emphasised that scientific facts are "theory dependent". Oxygen was not discovered, it was invented. Observations are always answers to questions that have some theoretical perspective, not neutral reports on how the world is. C.S. Peirce may have been the originator of this line of thought, but it was popularised especially by Karl Popper and Thomas Kuhn.[Note 55] Richard Tuck’s remark that the concept of rights is theory dependent is probably an echo of these ideas in the philosophy of science. The notion of theory dependence needs some theoretical context, so that we can understand what is supposed to be dependent, how and on what. Those who claim that the concept of rights is "theory dependent" need to explain more clearly than they have done the meaning and justification for their claim. Our concept of right will depend on our theory of what rights are; that is a truism. But Richard Tuck and others seem to suggest that the concept of a right depends on theories about how rights are justified, perhaps even on the particular reasons given in justification of a particular right. I do not accept this. If there are two arguments for the same conclusion, that does not make the conclusion ambiguous. If various different reasons, or kinds of reasons, are given to justify various rights, that does not mean that they are rights in different senses. There are different kinds of rights, but that does not make the term equivocal or analogical; rather, it seems to me, the different kinds of rights are species of the same genus. I believe that a single definition can be given for the genus, and above I have said what I think it is.
It has sometimes been said that medieval rights were for the sake of duties to God, modern rights for the sake of liberty.[Note 56] But medieval authors, as Tierney points out, recognized that people have "choice rights" (as Tierney calls them), that is, rights to pursue choices that are not made as a matter of duty. Medieval moralists recognised that some acts are permissible but not required, and they recognised "supererogatory" acts, i.e. acts positively good and perhaps praiseworthy but not required, such as to marry or to join a religious order. They recognised liberties as well as rights: William of Ockham often refers to "rights and liberties" and argues against certain claims to "fullness of power" on the part of popes and emperors, that for rulers to have power to impose as a duty anything not contrary to divine or natural law is incompatible with the liberties of their subjects.[Note 57] On the other hand, modern rights also include duty rights: the rights of a parent, for example, exist partly to enable parents to do their duties by their children. Duty rights are not atypical or trivial. Every "office" or role in society—teachers, medical practitioners, police, managers, etc.—has particular rights that exist so that office holders can carry out their functions. Many of these rights are considered important enough to be legally enforced, but in any case they are recognised as moral rights, i.e. rights that morally ought to be respected. Like the medieval moralists, we recognise both liberty rights and duty rights, but this does not mean that we have two different conceptions of what a right is. We do not switch from one concept to the other in moving between these two kinds of rights. Reference to the reason for recognising the right is not built into the conception of a right.
Every right is a permission: to do something I have a right to do is permissible. This is true also of rights that arise from duties—to do one’s duty is permissible. Individual actions that are not wrong are also permissible, even when they are not an exercise of a recognised right. The permission given by a right is in general terms, "Anyone has a right to do such-and-such a kind of action". It is left to the discretion of the right-holder whether and exactly how it is to be exercised on a particular occasion. In effect the community says to the right-holder, "If you decide to do something that falls within the following class of actions described in general terms, then we will acknowledge that you are acting rightly and not blame, punish or obstruct etc." —or something like that. This is a permission.
Insofar as rights exist by law (natural law or law of nations or civil law), the permission to act that a right gives is possible because the law permits some kinds of actions. If a law commands something, then it is permissible under that law. If the law issues no command or prohibition relating to such acts, simply not mentioning them, then they are permissible, on the assumption that what is not prohibited is permitted. This assumption is a presupposition of every law, because law is addressed to persons with intelligence and free will, who are assumed to act at their own discretion except when something is commanded or forbidden. (In fact, even then we act on our own discretion: we might decide not to obey; if we decide to obey that will be an act of free choice, an exercise of discretion.) For those subject to the law to act on their own discretion where there is no command or prohibition is not a permission granted by the law, as if there were a law at the end of the legal code that says, "Apart from what is prescribed above, you have permission to act as you choose". Discretion is rather a presupposition to all law, something that is outside the law code and logically prior to it.
Individual discretion is also a presupposition to the whole of ethics. The recognition of rights and duties belongs to the part of positive morality or ius gentium that is concerned with possible conflict. Conflict is not the whole subject matter of ethics or even its most basic part. In the state of innocence there would have been good actions and better actions and (in principle) an ethics to guide choice and ethically wise leadership.[Note 58] Aristotle’s ethics is only in part concerned with conflict; Aristotle does write on Courage and Justice, which imply the possibility of conflict, but there are many other virtues and there are the topics of friendship and the good life. Aristotle is clear that ethics is concerned with actions people choose; he discusses deliberation and "the voluntary" and considers whether ignorance or force make actions involuntary. Thomas Aquinas follows Aristotle in all this; according to Thomas a rational agent has self-dominion through free will.[Note 59] That human beings have intelligence and free will (in some sense of that term)[Note 60] is a presupposition of ethics in general. There is no need for an ethical system to make a special grant of free choice where there is no ethical command or prohibition, since free choice is presupposed to all morality.
Although a law code is not the source of a permission to do what the law does not prohibit, a code may include permissive laws.[Note 61] These are laws that say, in effect, "Notwithstanding the provisions of this code that forbid so-and-so, in such-and-such circumstances it is not forbidden".[Note 62] A permissive law may also correct a presumption that may seem to be established by the existing laws. In one way or another, a permissive law is a modification of the implications, or apparent implications, of the rest of the body of the law. But it is not only by permissive laws in the strict sense of the term—laws that allow something notwithstanding some other law or legal presumption—that actions are legally permissible; an action may also be legally permissible either because it is commanded by the law or because the law does not prohibit it.
Brian Tierney has argued for the importance in medieval and early modern rights theories of the concept of permissive law and connected it with individual sovereignty or liberty.[Note 63] The texts he has gathered show that many medieval writers referred to permission under natural law. It is not always clear that they meant that natural law contains permissive laws in the strict sense; it is possible that sometimes they mean that the natural law leaves some matter open simply by being silent about it.[Note 64] It does not seem that natural law could include permissive laws in the strict sense; the inclusion of a permissive law in a code implies that some other law needs correction, and natural law has always been thought of as an ideal. But perhaps some writers did mean to include permissive laws in the strict sense in the content of the natural law. Various writers list: commands or precepts, prohibitions, demonstrations or counsels, and permissions. The term "demonstration" is not easy to interpret. It is not, I think, merely a permission. Rufinus, who introduced the term, seems to mean a recommendation or counsel or statement of an ideal.[Note 65] In his view, common possession of all things is not simply permitted by natural law but even recommended; but it is not commanded—otherwise property would not be legitimate.
The question of the legitimacy of property has given the notion of permission its historical importance.[Note 66] Isidore’s list of what comes under natural law, quoted in Gratian’s Decretum,[Note 67] includes both common possession of all things and respect for property, which seems inconsistent. There were various medieval solutions:[Note 68] according to Rufinus, common possession is the ideal, but property is not prohibited. According to Thomas Aquinas and many Thomists, the natural law permits (apparently as equally satisfactory) both common possession and property, whichever human beings decide. According to the Franciscans, community was required in the state of innocence and may be permitted after the Fall for communities (such as religious orders) whose members are striving for perfection,[Note 69] but for most communities after the Fall the establishment of the institution of property is a matter of precept. In their view, natural law gives different directions for different conditions of human life.
But however we decide between these theories of property, and whether or not we think that natural law contains permissive laws in the strict sense defined earlier (i.e. laws that explicitly make exceptions to other laws or to presumptions suggested by the laws), there is no doubt that natural law, like other bodies of law, presupposes that some actions are permissible and left to our discretion. Whether or not we hold that natural rights derive from natural law, whether or not we hold any theory of natural law, whether or not we recognise any rights at all, human freedom is not in dispute; and therefore it cannot be claimed that the adoption of any particular theory of rights or natural law is favourable to liberty. Freedom is a presupposition of the deepest level of morality, before we come to rights and duties.
Tierney quotes Savigny’s remark that a right was "the territory in which his [an individual person’s] will prevails", and also Hart’s remark that a right is a kind of "sovereignty over the other’s will".[Note 70] I think that such language is extravagant and misleading. It is true that the recognition of a right establishes a "territory" in which the right-holder’s will prevails, in the sense that every such right is stated in general terms, leaving to the right-holder the decision whether and how to exercise the right, and that the right-holder’s decision may trigger duties on the part of other people. But the word "prevails" and the word "sovereignty" suggests domination over others. The ascription to a person of a right does not give that person dominion over anyone else. The right-holder does not legislate for others or subordinate others to his or her will. The duties of others triggered by the right-holder’s decision follow from the general moral principle (perhaps part of natural law, but at any rate not legislated by the right-holder) that permissible acts are not to be blamed, punished or deliberately obstructed. If there is a legislator, it is the community, when it recognises certain rights available to anyone who qualifies, a recognition made not in view of any particular person’s benefit but for the benefit of all. Rights do not give us dominion over one another, they belong to us as equal citizens in a community of friendship and cooperation.[Note 71]
It is sometimes said that rights are important, especially in modern thinking, because they secure liberty. There are "choice rights", to use Tierney’s term, and they figured in medieval thinking as well as modern. But even "duty rights" involve choice: as I said before, exercise of a right requires choice, decision, an act of free will. We can find ourselves in situations in which we say we have no choice. This is never literally true. What we mean is that there are no good options. Sometimes the lack of options may be due to physical circumstances, but sometimes it is because of the demands of duty: we find that whatever option we think of, alternative to the thing we do not want to do, there is some rule of duty forbidding it. We would prefer not to be in such a situation, though we cannot expect we never will be; but the shorter and less onerous the list of duties, the less restriction there will be on the range of choice. Perhaps this gives the sense of the liberty that Mill wrote On Liberty to defend. Mill wanted to keep the catalogue of socially recognised and enforced duties from getting out of hand, so as to preserve an area of liberty—that is, situations in which we have more than one permissible option—in which we are free to live according to our own discretion.[Note 72] Mill rejected with scorn the idea that duty is all-embracing.[Note 73] (There is some irony in this, since the "act Utilitarian" theories developed under Mill’s influence left no liberty of choice except when there happen to be more than one equally beneficial option.)[Note 74] This sort of liberty may be more highly valued now than it was during the middle ages, but it was not ignored by medieval thinkers. Ockham[Note 75] and Thomas Aquinas[Note 76] praised the "liberty of the gospel law" because it leaves many matters to the discretion of individuals. To secure liberty in this sense it is not necessary to assert any special right, it is enough to resist the imposition of unnecessary and unjustified duties.
Modern thinking about the value of liberty is sometimes influenced by the idea that people must be free to choose their own personal conception of the good, that human persons are sovereign in the sense that they can, arbitrarily, decree that this or that is good, and that no one else can impose on them any other conception of good than the one they freely choose.[Note 77] It seems to me that this idea of a private and self-decreed morality is incoherent. Morality at least purports to be something objective or inter-subjective. We may disagree about morality, we can easily be wrong about it, we should therefore be open to other people’s ideas; but when we disagree we are disagreeing about something that is in some sense "there" to be disagreed about. If there is no objective morality, then there is no morality. The claim to objectivity cannot be excluded from conceptions of rights. When I invoke a right, I am claiming that others should recognise my action as right and that they should not obstruct (etc.): if I were saying simply that I regard my action as right, whatever they may think, and that I want them not to obstruct, whatever they may think or want, then certainly I would be attempting to exercise an arbitrary sovereignty, but there could be no reason why anyone else should defer to my claim. The language of rights is inescapably inter-subjective. Those who want to adopt the theory that the good is whatever they say it is ought to give up the language of rights.
In this paper I have criticised a number of philosophical opinions that seem to influence study of the historical development of theories of rights, and in particular the interpretation of the cultural significance of various developments. I have argued that the invention or introduction of the language of rights did not newly attribute to people freedom of choice (this was all along presupposed to all morality and law), that the language of rights does not attribute to the right-holder sovereignty or legislative power or dominion over other people, that it does not attribute to people the capacity or entitlement to make up their own private conception of what is right or good. In these respects I do not find any conceptual break or "watershed" between medieval and modern rights, but rather development and elaboration along the same lines. A noteworthy modern development is the attempt to work out how we should respond to radical differences of religious and ethical conviction. Medieval moralists were not entirely intolerant, but they did not reflect much on radical religious conflict, though there was in fact plenty of it in their own world. During the sixteenth and seventeenth centuries religious conflict became a burning issue and many writers addressed it. Of those I think Pierre Bayle was the most successful. Clearly this is an issue of great importance for our time and the contributions made by Bayle and his contemporaries deserve our attention.
What difference would I like to see in the historical treatment of natural rights? I think medievalists should be cautious about claiming that rights were a medieval invention. It seems likely that every peaceable community, even if it did not use language equivalent to our language of rights, even if it had no convenient terminology, must have had some way of assuring people beforehand that certain kinds of actions would be well received and of warning them that certain other kinds of actions would be opposed. How that was done, and what kinds of actions were respectively encouraged and discouraged, no doubt differed from one community to another, partly as a result of difference in the circumstances of their lives. Historians should look seriously for more ancient equivalents to the language of rights. I would like to see medievalists give more attention to the medieval division between natural rights and other rights and to medieval conceptions of the ius gentium; I do not think medieval authors got these things clear, or at any rate their views do not seem clear enough to me. In studies of rights in the modern world, I would like to see less tribute paid to romantic, egoist or existentialist rhetoric about the value of pursuing one’s own, arbitrarily willed conception of the good life.
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Note 1. Or "subjective right". In English there is no need for the adjective. "A right", "rights", "my right", etc. are enough to express the idea.
Note 2. "As I once wrote, with the perhaps pardonable exasperation of a medievalist, in many general courses on the history of political thought, Aquinas provides the only stepping-stone between Augustine and the familiar world of Machiavelli and Hobbes and Locke. This approach, however, ignores a mass of other medieval writing, especially the vast body of work by medieval jurists, that contributed to the emergence of modern political thought." (Tierney, "Old Problems", p. 406.).
Note 3. Tierney, "Dominion of Self", pp. 175-6; cf. "Old problems", p. 396, 392)
Note 4. "Old Problems": Author’s Rejoinder, p. 416.
Note 5. We need to be able to recognize the relevant texts not simply by certain words that they contain but by the conceptual content. Medieval historians agree that the key word is ius, and I think this is correct. But there might have been no single key word. See Miller, chapter 4: Aristotle, who has the concept of a right, does not use just one Greek word or phrase to convey the concept.
Note 6. See Ross, Appendix I to Chapter 2; Lyons.
Note 7. Mill, On Liberty, p. 261.
Note 8. See my essay, "Bayle on the Rights of Conscience", sec. 1.1, "Rights and Duties"
Note 9. I am simplifying here. Bayle holds that people have the rights they believe they have. This is consistent with his view that the moral quality of an act depends on the agent’s beliefs. "An action done in consequence of a false persuasion is as good as if done in consequence of a true and firm persuasion"; "an action done against a false persuasion is as sinful as if done against a true persuasion". Bayle, Philosophical Commentary, p. 234.
Note 10. Or perhaps less. A mere "liberty right" would give no immunity from deliberate obstruction. A mere liberty is reducible to a lack of duty on the part of the person at liberty. I doubt that mere lack of duty counts as a right and I set such liberties aside.
Note 11. I will mostly ignore the difference between a right to do something and a right to have something done by another. I believe my account of a right covers both kinds, which in my view differ in the kinds of duties they trigger in other people, but I will simplify by not explicitly mentioning the second. When I refer to the "exercise" of a right, this should therefore be understood to cover claiming, requesting, demanding, etc., and also merely being disposed to accept! If a person has a right to have something done, others have duties not to blame or punish that person for wanting the thing to be done or accepting the doing, not to deliberately obstruct the claiming or accepting, and anyone obliged by the claim right to do something has a duty to do what the right-holder has the right to have done.
Note 12. The general duties are part of what Hart calls the "protective perimeter", "Bentham on Legal Rights", p. 171. It has also been suggested that the waiver of a right should be regarded as the exercise of an additional, accessory, power or right that accompanies the principal right but is not part of it; see MacCormick, "Children’s Rights". In some cases a right may be a bundle of rights.
Note 14. On this question see Schauer; Waldron, "A right to do wrong", in his Liberal Rights, p. 63f; Van Duffel "Natural Rights", p. 149.
Note 15. W.D. Ross, The Right and the Good (Oxford, 1930), chapter 2.
Note 16. See my essay "Sincerity and Being Right", sec. 4, "Blame and responsibility", . It seems to me that we blame someone when we judge that their act is morally wrong, even if we do not utter any words of blame. The duty not to blame in the present context means the duty not to utter words of blame, especially not with the intention of causing distress.
Note 17. "If any right can be completely expressed as a more or less complex set of duties on other people towards the possessor of the right,… then the point of a separate language of rights seems to have been lost, and with it the explanatory or justificatory force possessed by references to rights. This result has been acceptable to many political philosophers, but others have been worried by it, feeling … that the point of attributing rights to people is to attribute to them some kind of ‘sovereignty’ over their moral world." (Tuck, Natural Rights Theory, p. 6).
Note 18. The residual duties are a consequence of purported exercise (in good faith).
Note 19. See MacCormick, "Children’s Rights: A Test-Case for Theories of Rights". MacCormick argues that fact that infant children have rights justifies the interest theory.
Note 20. In other contexts medieval writers used the notion of a presumption. See Ockham, Short Discourse, p 67.
Note 21. Cf. Thomas Aquinas, Summa, 1-2 q.18 a. 8, 9.
Note 22. "…to do this to the right person, to the right extent, at the right time, with the right motive and in the right way"; Aristotle EN II.9 (1109a 27); cf. II.6 (1106b 20) and III.1 (1110b 33-1111a 15).
Note 23. Thomas Aquinas, Summa, 1-2 q.18 a.4.
Note 24. In one of its senses. Ius had various senses: (1) "what is just" ("id quod iustum est"); (2) a natural innate force or power (synderesis or reason) that leads man toward right action (Tierney, The idea of natural rights, pp. 63-4), or even more broadly the innate capacity in any creature that leads it to do what the creator appoints); (3) a law (also signified by lex); (4) a right; and there are other senses.
Note 25. Or if the term was not potestas it was something equivalent, such a facultas or qualitas moralis. See Tierney, The idea of natural rights, pp. 50, 53.
Note 26. See the texts from Hervaeus Natalis quoted Tierney, The idea of natural rights, pp. 107-8.
Note 27. See OND 2.127-9 (p. 301), 6.170 (p. 359), 6.269-70 (p. 361), 61.46-50 (p. 559), 65.273-5 (p. 579), or Work of Ninety Days, pp. 60, 141-2, 145, 415, 445. Ockham sometimes gives a more elaborate definition of legal rights. For example, "a right of using is [a] a licit power of using an external thing [b] of which one ought not be deprived against one’s will, without one’s own fault and without reasonable cause, and [c] if one has been deprived, one can call the depriver into court"; OND 61.46-50 (p. 559) or Work of Ninety Days, pp. 415-6. Point (a) is the generic definition of a right, (b) is a statement of duties other people have in relation to rights (corresponding perhaps to what I have described as a duty not to obstruct), and (c) is the specific difference of a legal right.
Note 28. See Tierney’s criticism of Kriechbaum’s attempt to construe medieval references to power in the definition of right as passive power: "Medieval Rights and Powers: On a recent interpretation", History of Political Thought 21 (2000), pp. 327-38.
Note 29. Peter John Olivi left a questio on what such a power is ontologically; see Tierney The idea of natural rights, pp. 39-40, and Doyle. It is true, as Tierney says, that Olivi "eventually concluded that a right did add something to the person of the right-holder", but only because he attributed a (very minimal) entity to relations. If relations are entities that add something to the things related, then every time anywhere in the world a human being is born or dies, we all take on or lose one of these "entities" (viz. a relation of similarity, and many other relations), but such gain or loss makes absolutely no difference to our ability to do anything. On Olivi’s theory of relations see Boureau.
Note 30. "Natural equity" (i.e. natural law) includes some rules that admit of no exception and others that must be observed unless there is some special reason why not, i.e. something that suspends the rule or overrides it.(Short Discourse, p. 69.) Every human being has a natural right to use things, but this is a right that can be suspended or overridden: (OND 65.206-210, p. 578, Work of Ninety Days, pp. 442-3). Once property is established, not to use something belonging to another against his will belongs to natural law on supposition, yet in a time of extreme necessity this rule is overridden and it is permissible to use a thing against the will of its owner; Short Discourse, loc. cit.
Note 31. See Aristotle, Ethica Nicomachea, III.1, 5; Thomas Aquinas, Summa, 1-2 q.6 a.8.
Note 32. EN1110b 28, Thomas Aquinas, Summa, 1-2 q.19 a.6.
Note 33. Eric Darcy’s account of Thomas Aquinas’s position on error is in my opinion not accurate. See my essay "Arnauld", text at note 147.
Note 34. 3.2 Dial. 1.15, (Letter, p. 273).
Note 35. The US "Declaration of Independence".
Note 36. See "Natural Law" in Encyclopedia of Medieval Philosophy, HenrikLagerlund (ed.), Springer, forthcoming.
Note 37. Thomas Aquinas, Summa, 1-2 q.91 a.3, q.94 a.2. Following Aristotle, Thomas distinguished four different senses of "per se"; see his In libros Posteriorum Analyticorum expositio, lectio 10 (pp. 180-1). A "propositio per se nota cuius praedicatum est de ratione subiecti" belongs to the first of the four kinds. According to Aristotle, scientific knowledge must be based on indemonstrable, self-evident principles, Anal. Post. I.3 (72b 18-23).
Note 38. Thomas Aquinas, Summa, 1-2 q.91 a.3, q.94 a.2 and a.4, q.95 a.2.
Note 39. Scotus, in Wolter p. 277.
Note 40. Ockham, Quodl. II, q. 14, pp. 148-50. Cf. 3.2 Dial. 1.15 (Letter, p. 273). The latter text supplies another example: "For if, on some occasion, someone is tempted to kill an innocent person who never did harm, then immediately, if he wills to deliberate, even briefly, about whether he should kill him, it will occur [to him] that he should not kill him". On the meaning of "per se" in Ockham, see Baudry, p. 197.
Note 41. Morality is amongst the sciences capable of demonstration: "I doubt not but from self-evident propositions, by necessary consequences, as incontestible as those in mathematics, the measures of right and wrong might be made out"; Essay, IV.iii.18.
Note 42. "Intueri" in Latin means "to see". Intuitionism in Ethics is the doctrine that we can know ethical truths immediately, without argument, just as we can look at the sky and immediately see that it is blue. Sidgwick distinguishes between what he calls perceptional and philosophical intuitionism: perceptual intuitionism holds that we can intuitively judge the morality of an individual act directly, without reference to rules or principles; philosophical intuitionism is the view that we see intuitively the truth and bindingness of general principles of morality (Sidgwick, pp. 100-102). According to Sidgwick, Utilitarianism is based on a single intuitive principle (pp. xvi, xx). John Rawls gave currency to the idea that intutionism is the theory that there are several basic principles that may conflict. I do not use the term in this sense, but in Sidwick’s, according to which the number of principles is an open question. An intuitionist who envisaged a plurality of principles was W.D. Ross. Ross combined perceptional with philosophical intuitionism: according to Ross, we can "see" the truth of various principles, and when they conflict we decide intuitively, by "weighing" (a change of metaphor from the visual to the kinaesthetic), to decide which principle prevails in the particular case. (See Ross, chapter 2.) Intuitionism is a foundationalism, i.e. a theory that supposes that there is permanent intellectual bed-rock. There could be a non-foundationalist version, if we take some ideas from C.S. Pierce: we could say that there are revisable principles that at present seem unprovable and not in need of proof but are liable to future revision or even rejection, as experience and reflection progress; for the time being we can take them as the basis of our reasoning. I do not see how ethics can do without intuitions, at least of the revisable kind.
Note 43. Mill, Utilitiarianism, p. 250.
Note 44. See my article, "Utilitarianism and Virtue". Sometimes that argument is that certain rules establishing duties and/or rights would reduce conflict arising from thoroughgoing disagreement about what is right, in the expectation that if some parties commit themselves to recognizing these rights, then the other parties will eventually do so too.See my essay, "Reciprocity arguments".
Note 45. See Hume, Treatise of Human Nature, Part II, sections 2 and 5.
Note 46. Hume, Treatise, p. 497. See my essay "Utilitarianism and Virtue".
Note 47. I am not saying that "good" is a more fundamental ethical category than "right", merely that it is more fundamental than "useful", and therefore more fundamental than rights justified by their usefulness.
Note 48. Lovejoy, chapters ***
Note 49. Aristotle, Politics II.3 (1261b 30-37), II.5 (1263 a15-b7). Cf. Thomas Aquinas, Summa, 2-2 q.66 a.2; Ockham, Short Discourse III.7, p. 89.
Note 50. Reference to Thomas Aquinas***
Note 51. Tierney has suggested that "Perhaps we should see the two", i.e. natural rights and natural law, "not as derived one from the other, but rather as both rooted in human nature itself—the rights in the human capacity for free choice that requires a realm of individual autonomy for its exercise, the laws in the human ‘inclinations’ defined by Aquinas"; "Old Problems", p. 405. I will consider this possibility later.
Note 52. Or for property, according to the Franciscans. According to many Thomists appropriation was permitted by natural law in the state of innocence, for a good reason; according to Franciscan authors there would never have been a good reason and appropriation would have been contrary to the law of nature as it applied in that state.
Note 53. On the three modes of natural law see 3.2 Dial., 3.6, Letter, p. 286f. Suarez recognized something equivalent to natural law on supposition. (See Kilcullen "Origin of Property", n. 78.) Suarez held that the natural law already said "Thou shalt not steal" even before property had been introduced, but since there was as yet no property the rule "thou shalt not steal" had as yet no application. On this view natural law includes eternally a very large number of rules for all possible social situations, including many rules that at a given time have no application. When the social circumstances change, human beings come to perceive natural laws they had not thought about before though they were always there. Ockham might well have accepted this. His natural laws on supposition could be viewed as conditional rules that come into effect when the conditions are satisfied. The advantage of this approach is that it preserves a characteristic that medieval accounts of natural law often emphasize, namely that it is immutable.
Note 54. Ockham relates the duty to respect the laws of property to the duty to observe pacts; see OND 65.40-55 (pp. 573-4), Work of Ninety Days, pp. 436-7. It might seem possible to reduce all natural law on supposition to the observance of pacts, but this is not so. Natural law on supposition may also be based on some act that does not involve any pact; thus the right to self-defence arises from the occurrence of acts of violence without pact. See Letter, p. 288.
Note 55. See Peirce, p. 304; Popper, pp. 23, 46.
Note 56. A recent article on medieval rights theories emphasized "one dominant attitude to iura that seems to place special emphasis on duties, simultaneously downgrading rights without altogether abolishing them in the domain of civil law"; Coleman, p. 3.
Note 57. See Ockham, Short Discourse, II.16-18. Ockham’s earliest critique of papal claims, in 1 Dial. 7.67, gives prominence to the traditional "choice" rights: "The church cannot from plenitude of power force the faithful to perform acts of supererogation, or such as are known to be excessively burdensome, acts one is known not to be obligated to perform either by divine law, or by natural law, or by one’s free will. This is indeed the reason why the church cannot force Christians to vow chastity or virginity, because, as the sacred law states: ‘chastity may be advocated, but cannot be ordered’. [32 q. 1 c. 13, col. 1119] Similarly, the church cannot force Christians to enter a religious Order of mendicants, or monks, because this is a supererogatory matter. And the reason why the church cannot compel Christians to perform acts of supererogation is because such acts are exceedingly burdensome, and Christians are not obligated to perform them by divine law or by natural law;" translated G. Knysh.
Note 58. Cf. Thomas Aquinas, Summa theologiae, 1 q.96 a.4.
Note 59. Summa theologiae, 1-2 q.1 a. 2. Dominion in this context does not mean ownership; see Ockham, OND, 2.262ff (Work of Ninety Days, p. 65ff). Whether human beings also have in some sense ownership of themselves is another question.
Note 60. Duns Scotus, closely followed by William of Ockham, sent European thought down a wrong track (in my opinion) with their idea that a chooser has full power to make opposite choices even though nothing in the universe changes between one choice and the other—on the contrary, something has to change to make the opposite choice possible. But even if all human choices are determined by dispositions and circumstances, there are choices, and people can choose to change their dispositions and circumstances. This is a large topic that we cannot pursue. See my essay "Sincerity", sections 1 and 5).
Note 61. On this topic see Hart, "Legal Rights", p. 165.
Note 62. An example is the "notwithstanding" clause, section 33, of the Canadian Charter of Rights and Freedoms (the Canadian "Bill of Rights"). (See my notes on an Australian Bill of Rights) The Charter of Rights and Freedoms lists the usual things contained in such documents, not attempting to define any of them closely, leaving it to the courts to develop doctrine on these things; but it then provides in the "notwithstanding clause" that the Parliament can enact laws notwithstanding the Charter of Rights and Freedoms. (This is an intelligent solution to the problem many people see in constitutionally entrenched bills of rights, that they give the judges the final say in matters that should be dealt with politically.) Section 33 is a permissive law: it permits Parliament to do what would or might have been unlawful under the Charter of Rights and Freedoms. By virtue of this permissive law the Parliament has the right to enact legislation that might otherwise have been deemed unconstitutional.
Note 63. Tierney, "Old Problems", p. 399ff, "Permissive Natural Law".
Note 64. Tierney quotes the following: "In a second way, ius naturale means what is permitted and approved but not commanded or prohibited by the Lord or by statute…" ("Old Problems", p. 400). This permission may be simply by the silence of the law, not by an explicit permissive law.
Note 65. Rufinus, pp. 6-7: The natural law "demonstrat quod convenit, ut ‘omnia in communia habeantur’". The demonstrations are things that "natura non vetat non precipit, sed bona esse ostendit". According to Alexander of Hales (vol. 4, p. 348), "demonstratio ibi accipitur loco consilii".
Note 66. See Tierney, "Permissive Natural Law and Property".
Note 67. Dist. 1, c. 7, Ius naturale, col. 2.
Note 68. On what follows see the section "Theologians on the law by which property was established" in Kilcullen, "The Origin of Property".
Note 69. According to Ockham (Short Discourse, p. 91), positive precepts "hold always but not for always", whereas negative precepts hold for always; he seems to have regarded community for the state of innocence as an exceptionless precept, as if it were the negative "Do not appropriate", and appropriation for the state of fallen humanity as a positive precept to which there can be exceptions. This is unsatisfactory, since, as this instance shows, negative precepts can be formulated as positives and vice versa.
Note 70. Quoted Tierney, "Medieval Rights and Powers", p. 328. This sovereignty is qualified as a "temporary authority or sovereignty in relation to some specific matter"; Hart, "Are there any natural rights", p. 184.
Note 71. Thomas Aquinas, "Every law aims at establishing friendship", Summa, 1-2, 99, 1 ad 2. The aim of natural law is to establish the friendship of the whole human race.
Note 72. See my essay, "Mill on Duty and Liberty".
Note 73. Mill, On Liberty, p. 288.
Note 74. Reference to G.E. Moore***
Note 75. Ockham, Short Discourse, II.3, 4, 17
Note 76. Thomas Aquinas, Summa, 1-2 q.108 a.2. "The time of perfect liberty was already at hand, when they would be left entirely to their own judgment in matters not necessarily connected with virtue", Summa, 1-2 q. 108 a.2 ad 3.
Note 77. For illustrations, see the writers cited by Van Duffel, "Natural Rights", pp. 149-50. Perhaps this way of thinking goes back to Kant on the autonomy of morals. However, Kant meant that each person imposes moral law on him- or her-self, not on other people; and the categorical imperative limits the self-imposed law so as to make it compatible with the freedom of others.
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