John Kilcullen
Abstract: From the 12th century onwards, medieval canon lawyers and, from the early 14th century, theologians and philosophers began to use ius to mean a right, and developed a theory of natural rights, the predecessor of modern theories of human rights. The main applications of this theory were in respect of property and government.
(A shorter version of this essay has been
published in Springer Encyclopedia
of Medieval Philosophy.)
In medieval texts the term ius naturale can mean either natural law or natural right; for the former sense see article “Natural Law”. Medieval texts sometimes use the term ius in a way that seems equivalent to English “a right”. In other modern European languages this sense is indicated by the adjective “subjective” (e.g. subjektives Recht, droit subjectif). “Subjective” does not imply subjectivity in the sense of arbitrariness; it means that there is a “subject” to whom the right belongs--a “subjective right” is some person’s right. (This is the ordinary sense of “a right” in English.) Some medieval writers, beginning with the canon lawyers of the 12th century, refer to certain iura naturalia, “natural rights” that belong to human beings apart from any human positive law. They held that some of these natural rights are alienable or able to be overridden by human law, but others (or these same rights) are in certain circumstances operative irrespective of positive law—that is, at least some natural rights are, at least for some circumstances, inalienable. This is the ancestor of the modern idea of human rights, i.e. rights belonging permanently to any human being as such, independently of the law or customs of any community.
“The canonistic rights vocabulary, like our own, is a rich one. Libertas, potestas, facultas, immunitas, dominium, iustitia, interesse and actio can all in the appropriate circumstances by translated as ‘right’” (Charles Reid, quoted Tierney, p. 262; except when otherwise indicated, all references to Tierney are to his Idea of Natural Rights).
The key words are ius and dominium. In medieval
Latin ius had a number of meanings—according
to Tierney (p. 115; cf. p. 40), the canonist Johannes Monachus
listed two dozen. Some were not relevant to ethics and politics
(e.g. ius in the sense of broth), but those
that were include the following:
(1) what is just (id quod iustum est);
(2) a law (also signified by lex);
(3) a natural innate force or power that leads human beings to
act rightly;
(4) the innate capacity in any creature that
leads it to do what the creator appoints;
(5) a right.
Sense (3) is seen by the
chief authority on this subject, Brian Tierney, as fundamental.
He suggests that both natural law and natural right can be seen
as deriving from the innate force of reason (Tierney, p. 65).
Huguccio and others who use ius in this sense
(Tierney, pp. 62-5) seem to echo
Sense (4) seems to be
related either to sense (2) or to sense (3). It is either a law
or a power that directs non-rational agents to act as God
intends. Roland of Cremona says that in a spider is a ius that leads it to spin a web (Crowe, p. 117).
Gerson says that the sun has a ius to shine
(Gerson, vol. 3, p. 142). Summenhart and
Sense (5) is uncommon in Thomas Aquinas (though it is not entirely absent; see Hering). This has led some historians to look for a “watershed” after Aquinas in the use of ius, a time at which it first began to mean “a right”. According to Michel Villey, Ockham was the first to use ius to mean a right, according to Richard Tuck it was Gerson. However, Brian Tierney has shown that ius was used in this sense by canonists from as early as the twelfth century, and that the theologian Hervaeus Natalis and the philosopher Marsilius adopted the lawyers’ usage before Ockham did. Thus Ockham was not the originator of the concept of subjective right, though, as will be seen below, he seems to have been the first to have constructed a political philosophy based on natural rights.
The term dominium
also had many senses. On the meaning of dominium,
dominare etc. in the 14th century
(including in natural science) see Ockham, OND 2.262ff. Wyclif
and his critics multiplied the kinds of dominium;
Summenhart distinguished twenty-six kinds (Tierney, p. 251).
Four senses are worth noting: dominium may mean
(1) the mastery a rational being with free
will has over his or her own actions,
(2) rulership (e.g. a king’s rulership),
(3) ownership over things (proprietas), and
(4) the mastery Adam and Eve had in the state of innocence over
other creatures. Sense (4) was sometimes called “original” dominium, and by analogy with this some wrote of
evangelical dominium, beatific
dominium and other kinds enjoyed by particular categories
of people.
Only beings with dominium in sense (1) can rule themselves by law or possess rights, but this dominium is not itself a right. Rulership and ownership are rights or objects of rights: a king has a right to his dominium, an owner has a right to his property (ius dominii). In sense (3) dominium meant, originally, possession of and complete control over a thing. Such dominium implies the exclusion of others: it is not possible for two or more people individually (i.e. not as a corporation) to possess and totally control the same thing (Dig. 13.6.5.15). Dominium was distinguished from more limited rights such as usufruct, just as we would distinguish ownership of a house from tenancy. In Justinian a dominus who granted usufruct to another retained only “bare proprietas” (Inst. 2.4.1) and enjoyed dominium proprietatis, but in medieval usage, at least among theologians, proprietas was synonymous with dominium in sense (3).
Some theologians (perhaps because they wanted to provide for the restitution of violated rights and tried to equate that with restitution of dominium violated by theft) came to the view that usufructuaries and other holders of partial rights had dominium (in a broad sense) over their rights. Thus one had dominium (in a broad sense) in one’s ius, and a ius to one’s dominium (in the strict sense). Summenhart wanted to say that dominium over a right gives dominium over the thing to which it is the right, but most writers took the view that a tenant’s dominium over his right to live in the house is not dominium over the house. On the question whether every ius is a dominium see Tierney, p. 243-5, 260, and Brett pp. 34-40, 128-9, 149-50.
Natural rights were usually referred to as iura naturalia, but there were occasional references to naturale dominium.
A fully-fledged medieval natural rights theory (for example, as presented by Ockham—see below) consisted of two elements: a treatment of property rights, and a treatment of political rights. Whether property itself was a natural right was disputed; theologians generally said that property was not natural but a creation of human positive law, lawyers generally said that property, or at least some kind of property, existed by natural law. But it was generally agreed that every person has a natural right to self-preservation and hence a natural right to use things—in a situation of necessity even things belonging to another. Medieval writers postulated other natural rights with important implications for politics. They held that everyone has a natural right to self-defence. Like the right to use things to sustain life, the right of self-defence was seen as implied by the natural law duty to preserve human life, one’s own first of all. Another natural right with political implications was the right to freedom. The right to use things, the right to freedom and the right of self-defence were included in Isidore’s statement of natural law: “the common possession of all things and the one liberty of all… and the repelling of force with force” (quoted Gratian, I dist.1 c.7, Friedberg, vol. 1, col. 2).
Although Isidore says that natural law includes “the common possession of all things”, he also says that it includes “the acquisition of things taken from air, sea and sky, the restitution of an article given in trust or money loaned”; and one of the Ten Commandments is “Thou shalt not steal”, which shows that property is approved by God. Some held that common possession existed only in the state of innocence and had been superseded when property was instituted after the Fall. However, according to the canonist Huguccio and many others the original common possession still holds, in the sense that in time of need the better-off are obliged to share their means of sustenance with the poor, who commit no theft if they help themselves (Tierney, pp. 72, 73, 139).
According to Thomas Aquinas, human beings have a natural lordship (naturale dominium) over useful external things, because by reason and will we are able to use them (ST 2-2 q.66 a.1). This dominium is not ownership, which is the topic of the next article, but an extension of dominium in sense (1) above, i.e. it is an exercise of free choice, as in 1-2 q.1 a.2; man has natural lordship in the sense that he can use things at his choice. (Compare 2-2 q.66 a.1 ad 1.) In the next article (2-2 q.66 a.2) Thomas asks whether it is licit to possess something quasi propriam, i.e as being one’s own, to the exclusion of others—that is, whether property is licit. He answers that it is (for the reasons given by Aristotle), but one must be ready to share one’s property with others, especially in time of need. A poor person who takes another’s property in time of need is not guilty of theft (2-2 q. 66 a. 7).
Discussion of property and the right to sustain one’s life by using things intensified with Pope John XXII’s attack on the Franciscan claim that they had renounced all legal rights and used food and other things only by “simple use of fact”, without ownership. According to Bonaventure (Apologia pauperum (1269), p. 312, followed by Pope Nicholas III, Exiit qui seminat (1279), Friedberg, vol. 2, col. 1113), the Franciscans renounce property and other rights, but since life is impossible without use of external goods, and self-preservation is a duty, “no profession may ever be made that renounces entirely the simple use of temporal goods”. This answers the objection that complete renunciation of property is suicide (Bonaventure, p. 323, Nicholas col. 1113). In his attack on the Franciscan position, Pope John XXII argued that no one can justly consume something without owning it. He was answered by various writers, including Bonagratia of Bergamo and Marsilius, who argued that one can justly use another’s property, without acquiring it as one’s own property, if the owner gives permission. To this the Franciscans’ opponents replied that permission confers a right, indeed (in the case of consumables) a right of ownership: to give permission to use a consumable is to hand over property in it. To consume with the owner’s permission is therefore incompatible with the Franciscan’s claim to have renounced all rights.
Ockham in the Opus nonaginta dierum distinguishes between
natural rights (which he sometimes refers to as iura
poli, “rights of heaven”) and positive legal rights (iura fori, “rights of the law courts”, OND
65.35), and he claims that an owner’s permission does not confer
a legal right, or any new right, but merely “unties” the
original natural right to use things. Like Alexander of Hales,
Bonaventure and Scotus, Ockham says that in the state of
innocence property would have been contrary to natural law but
after the Fall became permissible and in most circumstances
obligatory. (After the Fall appropriation “falls under precept”,
but since it is an affirmative precept it does not oblige “for
always”, and a community striving for perfection can renounce
property; Brev. iii.7.67-8, 8.3-17, pp. 180-1.) After the Fall,
human communities have the right to enact positive law
establishing the institution of property. The right to establish
property is said in OND to be from natural law, supposing the
circumstances of the fallen state (OND 92.16-45, p. 439), in Breviloqium it is said to be from divine positive
grant (Brev. iii.7.35-6, p. 179); but in both works Ockham holds
that the original right to use things to sustain life is a
natural right. After the Fall, once human positive law has
established property, the original natural right is “tied” but
not abolished. Anyone can use any unappropriated thing, anyone
can use anything necessary to sustain life in a situation of
extreme necessity, and, even outside a situation of necessity,
anyone can use another’s property with the owner’s permission.
An owner’s permission does not necessarily confer any legal
right—it does not necessarily confer the “right to use” that is
a legal right. (It is important here not to confuse the usus and ius utendi (OND
2.127ff, 2.155ff) that are legal rights with the “simple use of
fact” to which a legal right is not necessarily attached (OND,
6.268-70).) In some cases permission is intended to grant a
legal right, and may be accepted in that sense; but an owner may
give—using a term Ockham does not himself use—“bare”
permission, without conferring any legal right whatever, so that
if the permission is withdrawn, for any reason or for none, the
beneficiary may not complain and cannot take the owner to court.
Bare permission is the only kind Franciscans accept. The
Franciscans’ use of things, outside the situation of necessity,
rests upon the bare permission of owners. This is true even of
the use of consumables: though by use a consumable ceases to
exist, the friars can with permission consume things, just as
slaves, children, guests and others may consume food and other
things that continue to be the householder’s property as long as
they exist (OND 4.255ff). The permission that does not confer a
legally enforceable right merely unties the original natural
right to use things, and this right is enough to make the use
just. (On all this see OND chapters 64 and 65.)
Later theologians
were not much interested in “simple use of fact”, but otherwise
their view of property was like Ockham’s: in the state
of innocence every person had the natural right to use anything;
this right is now restricted by property, which is an
institution of positive human law; but one can use another’s
property with the owner’s permission, and in a situation of
necessity the original natural right revives so that helping
oneself without permission is not theft.
When Ockham’s conflict with
Pope John led him to questions about the constitution of the
Church and the relationship between Church and secular
government, the notion of natural rights was again central to
his thinking. In a number of places (OND 88.308-10, Brev.
iv.10.54-8, 3.1 Dial. 2.28, 3.2 Dial. 3.6) Ockham invokes the
canon Ius civile, in which Isidore explains the meaning of the term “civil
law”: “Civil law is the law proper to itself that each people or
city establishes, for divine and human reason.” Ockham
interprets this not merely as the explanation of a term but as
an assertion of the right of each people to establish for itself
a law and a government and to elect its own ruler. (“People”
here does not mean what it meant for nineteenth century
nationalists. It means human beings living in some locality or
region who have common interests, e.g. in peace; see OQ
iii.1.66-70, and “Self-determination and the
right to establish a government”) These natural political
rights are said to be given “by God and nature”; they are not
given by God through positive divine law, but through the law of
nature (which is divine law in a broad sense). “Law of nature”
is here understood in the third sense, i.e. natural law on
supposition (see art. “Natural
Law”). The natural political rights have application
even to the government of the Church. For example, the
Christians of Rome have a natural right to elect the Pope (3.2
Dial. 3.6-7). Although by Christ’s institution monarchy is the
normal constitution of the Church, there may be situations in
which Christians have the right to vary the ecclesiastical
polity at least for a time—for example, there may be situations
in which different parts of the Church have the right to appoint
heads not subordinate to a pope (3.1 Dial. 2.20-8).
Independent rulers hold power “from God alone” in the sense that regularly they are answerable to God alone, but rulers receive their power from the people and on occasion can be corrected or deposed by their subjects, or even by an individual subject (Brev. iv.6). Rulers have a (positive) right to their rulership, so that they cannot be replaced except for misconduct (Brev. iv.13). Hence the right to establish law and government can be exercised only by a people with no superior, i.e. a people not already under government (3.2 Dial. 3.6). Ockham accepted the view of the Roman lawyers that when the Roman people transferred their power to the first Emperor, they also gave the Emperor and his successors power to provide for the succession (OQ, viii.4.218-36, pp. 193-4; Brev. vi.2.31-8, p.251). Similarly the Christians of Rome, who have a natural right to elect the Pope, may have transferred the right of election to others, for example to the Cardinals, or in some cases to the Emperor (3.2 Dial. 3.6-7). Which rights are given to the ruler and which are retained by the people, and what is the constitution of the government, varies from one community to another (3.2 Dial. 2.29; OQ v.6.56-61, pp. 159-60). However, just as in situations of necessity an owner’s positive rights may be overridden by the right to use, so if government breaks down, or if the ruler becomes a tyrant, the people’s natural right to provide themselves with government and law revives and they may depose one ruler or regime and establish another. In view of the possibility of breakdown or tyranny, a ruler should not have so much control that he can evade correction—it is unnecessary, indeed dangerous, for everyone in the state to be subject in every case to one supreme ruler (OQ, iii.3.34-39).
Even in normal situations, the rights or powers of a ruler, even of Pope and Emperor, are limited by the rights of subjects, not only by the right to replace a tyrannical ruler but also by other “rights and liberties”. Ockham does not specify these in detail. The ruler’s power is obviously limited by the natural rights of subjects. Ockham takes this pretty much for granted, since no one claimed that rulers have power superior to natural law. His main contention, in regard to both popes and secular rulers, is that their power is limited not only by divine and natural law and natural rights, but also by positive rights and by natural and positive liberties. The Pope’s power is limited by the freedom Christians have under the gospel, which is a “law of liberty” (Brev. ii.3, 16-18); the secular ruler’s power is limited by the freedom which (not all but most) subjects have because they are not slaves but free—the freedom of subjects is necessary to the best form of government (OQ iii.4, 6; 3.2 Dial., 2.26-8). The indefiniteness of the array of rights and liberties may well be deliberate; perhaps Ockham did not need, or wish, to set out a purportedly complete list. The conception of the subjects’ rights and liberties is given content by two things: first, by tradition—the rights and liberties people have had since Roman times should be respected unless there is some good reason why not (Brev. ii.16.12-13, pp. 142-3); and second, by the notion of the common good—rulers must aim not only at their own good, but at the good of all the members of the community (OQ iii.4.7-14, p. 103).
Ockham’s accounts of the right to use, the right to
property, the rights of rulers and the rights and liberties of
subjects make no reference to the difference between Christian
believers and unbelievers. Political
rights belong to all human beings. The
empire of the pagan Romans may have been established at first
unjustly, but later the subjected peoples came to consent to
government by the Romans and this made it legitimate—Christ
himself acknowledged its legitimacy (Brev. iv.9-11, 3.2 Dial.
1.27). The Christian Roman Emperors and other Christian rulers
succeeded to the political rights of their non-Christian
predecessors (Brev. iii.5). Against those who assert that all dominium
belongs to the Church, Ockham argues explicitly that
unbelievers have rights under both natural and positive law
(Brev. iii.2-6, 8, 12, 13). Some medieval writers, notably
Giles of Rome and John Wyclif, denied that unbelievers (or
sinners, or the reprobate) had rights, but, like Ockham, most
theologians rejected this view. When the Spaniards invaded
South America the property rights, and other rights, of the
Indians were asserted by
Theories like Ockham’s were put forward by many later medieval writers. The leaders of the Conciliar movment studied Ockham (d’Ailly, for example, produced an abbreviatio of Ockham’s Dialogus) and were also influenced directly by the canonist tradition that had influenced Ockham (Tierney, 1955). Gerson’s conception of a body whose members had individual rights prior to any enactment by that body, rights that include a right to self-defence and also certain “political” powers (Tierney, pp. 220-5), echoes both Ockham and the canonist tradition. The political theory of Locke’s Second Treatise has obvious similarities with Ockham’s; the Conciliarists are the most likely medium of transmission of fourteenth century ideas into the seventeenth century (see Oakley).
Though the general
architecture of natural rights political theory did not change
much, if at all, after Ockham, later writers made interesting
contributions.
How does a ruler come by the power to coerce and punish? According to Ockham, a ruler’s power is from the people. But do the people, before the establishment of government, have powers of coercion and punishment? Suarez presented in some detail a theory essentially similar to Ockham’s (Suarez, especially III.ii.4 and iii.4-8, vol. 5, pp. 24-5, 30-5). According to Suarez political power comes from God as primary and principal author, but it is brought into existence by the will of human beings. Although political power, including the power to punish, belongs only “in its root” (radicaliter) to mankind considered as individuals not united into any body, as soon as people decide to form a body politic (as by natural law they have a right to do), the body as a whole necessarily has political power, which it may then decide to allocate to some head. These rights are “natural” in the sense that they follow necessarily on the decision to form a body politic (they belong to what Ockham would call natural law of the third kind). Locke later attributed the right to enforce natural law to individuals before the institution of government, admitting that “this will seem a very strange doctrine” (Second Treatise, sec. 9).
Hervaeus Natalis, Marsilius, Ockham, Gerson, and many others give substantially the same definition of a right, namely that it is a licit power to do something (or a power licitly to do something). (The root meaning of “licit” is “permissible”, “not wrong”. Note that “licit” never means “repugnant to reason” (Brett, p. 128): a thing may be licit according to the positive law though repugnant to reason because the positive law does not forbid or punish every immorality; but nothing immoral is licit according to natural law. What is licit by reference to a certain law is permissible under that law.) Some writers substituted for “power” some other term—e.g. facultas (Gerson), auctoritas (Summenhart)—but the meaning is the same. For illustrations see Ockham, OND 2.127-9, 6.170, 6.269-70, 61.46-50, 65.273-5; Tierney, pp. 106-7, 210, 246, 293. The power to “do” something covers also inaction and claiming (claiming is an action). There is no trace in medieval texts of the idea found in some modern writers that the beneficiary of another’s duty eo ipso has a right to that benefit—for medieval writers a right is a licit power of action, implying a choice to exercise the right. Ockham sometimes gives a more elaborate definition of a legal right: “a right of using is [a] a licit power of using an external thing [b] of which one ought not be deprived [c] against one’s will, without one’s own fault and without reasonable cause, and [d] if one has been deprived, one can call the depriver into court” (OND 61.46-50). Point (a) applies the generic definition of a right as a licit power to do something, (b) indicates the duty other people have in relation to rights, (c) indicates circumstances in which the right may be alienated or cancelled, and (d) is the specific difference of a legal right.
What sort of reality can a right be? A right clearly cannot be a passive power (like the potentiality of brass to become a statue). Neither can it be an active power (like intellect or will, or the power of fire to boil water), since one can have a right to do something without having any causative or “agent” power to bring the act about—we may not be physically able to do what we have a right to do. Several theologians, including Peter John Olivi, John Mair (Maior) and Konrad Summenhart, reflected on the metaphysical status of rights. (See Tierney, pp. 39-40, 240-1, 245; for Olivi see also Doyle, Boreau.) According to Olivi, a right cannot be an accidental essence added to the person whose right it is. This is proved by many arguments, including the following: the person who confers the right may be at a distance, or the concession may be for the future or may be conditional on some future event; no created agent can produce real effects in such ways (Olivi in Boreau, pp. 318-9, 326). The only reality in a right consists in God’s will together with the created things he wills to be related by the right and the intermediaries through which he wills the right to be assigned (pp. 323-4). In denying that a right adds anything real to the right-holder, Olivi seems to be right: possessing a right does not help anyone actually to effect what they have a right to do. It would seem better to say that “power” here means what it means in such expression as “legal power” or “constitutional power”—that is, to say that someone has such a power is to say that, if they can exercise it, their action will not be (morally, legally, constitutionally, as the case may be) wrong. In the definition of a “right” potentia contributes nothing; the word that conveys the meaning of “a right” is licite. To say that someone has a right is to say that a certain kind of action, if they choose to do it, will (ordinarily) be licit, i.e. right, not wrong, permissible.
Medieval writers generally had little to say in justification of their assertions of natural rights (though Thomas Aquinas offered an argument to show that it is licit for human beings to use things, ST 2-2 q.66 a.1). No one argued that, for example, “each person has a right of self-preservation” was per se nota or offered any other justification for it. If proof had been demanded they might have argued that from the duty to preserve human life, which is a duty under natural law, it follows that each person has a right of self-preservation, on the premise that one has a right to do one’s duty (i.e. an act required by duty is permissible). If all natural rights could be derived from natural laws in that way, then the justification of natural rights would have been implicit in the justification of natural laws, which—according to Thomas, Scotus, Ockham, Suarez and others—was a matter of derivation from principles per se nota (see article “Natural Law”). However, as is shown by the assertion by Suarez of “positive” rights to freedom and use (see above), natural rights could not always be represented as implications of natural duties. Natural rights theory seems to have been intuitionist in the modern sense, i.e. the assertions of natural rights, though not proved, were seen as obviously true and not in need of proof.
In any case, whatever justification can be offered for the ascription of a right, there is no conflict between the (at least purported) “objectivity” of morality or natural law and the ascription of “subjective” rights. On any view of morality, it will be true that in some cases some persons can licitly do or claim certain things. Morality prohibits some things and commands others, but it also implies that for some persons in some circumstances some acts (at least acts commanded and the opposites of acts prohibited) are permissible: that is, it implies that some persons have a right (a “subjective right”) to do or omit certain actions. Some have believed that Thomas was right not to use ius in the sense of subjective right because the ascription of rights to individuals is a betrayal of the objectivity of morals. This is a mistake: there is no incompatibility between moral objectivism and the ascription of subjective rights.
Since Michel Villey historians have focussed on the question, Did medieval thinkers develop a theory of rights comparable with modern theories, and if so when? Historical research has therefore been guided by conceptions of what counts as a right in the modern sense, and therefore by various philosophical suppositions, some of which have been misleading. Some have argued that medieval theories of rights were not equivalent to modern theories because the latter put more emphasis on choice, freedom, individual sovereignty.
Rights are not a modern invention, nor a medieval one. Rights seem to have been recognised by the ancient Greeks (see van Duffel p. 136 n. 1, who refers to Miller, Vlastos and Mitsis). A set of recognised rights and duties indicates which kinds of actions, claims or omissions will be acknowledged as legitimate and which may provoke opposition and punishment. A society can hardly work well unless members have such information, and some functional equivalent of rights is therefore likely to be found in most societies, though the language may not be easily translatable into the terminology of rights. Since a right relates to a kind of action or claim, and since acting or claiming involves choice, to say that a right marks out an “area of choice” is a truism. Exercise of a right may be a duty (e.g. the rights that go with a role), but even then exercise is a matter of free choice, since one can always choose not to perform one’s duty. Every list of rights and duties, indeed every moral code of whatever kind, is addressed to persons who have freedom of choice. Freedom in another sense (not freedom of choice, but freedom from obligation) is what is left after duty, and the shorter the list of socially enforced duties the greater the individual’s freedom in this sense. The medieval list was not all-embracing (Thomas Aquinas, 1-2 q108 a1, and Ockham, above, both claimed that the Gospel law is a law of freedom), and therefore there was freedom in this sense during the middle ages—though certain kinds of freedom, for example freedom of religious dissent, were not as well recognised as they have been since. It is not true that medieval rights were for the sake of duty while modern rights are for the sake of freedom; both kinds of rights have been recognised both in the middle ages and in modern times. Both kinds are rights in the same sense of the word—in every case, to say that one has a right to do or claim something is to say that the action or claim is permissible. If it is also a duty, the point of describing it as a right is to remind potential opponents that one must be permitted to do one's duty. Both kinds of rights impose duties (different duties) on other people, but only if the right-holder or his or her representative chooses to exercise the right. Finally, it is not true that the modern, in contrast with the medieval, conception of a right attributes “sovereignty” to the right-holder. On either the modern or the medieval view, a person’s choice to exercise a right imposes on others certain duties, but these duties are determined by the moral or legal code and merely triggered by the right-holder’s choice to exercise the right; they are not legislated by the right-holder. See “Medieval and modern concepts of rights: how do they differ?”.
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Primary Sources:
Gerson, Johannes, De vita spirituali animae, in Oeuvres
complètes, ed. P. Glorieux,
Suarez, Francisco, De legibus, ed. L. Pereña et al.,
Brev: William of Ockham, Breviloquium, in OP, vol. 4.
Translation: A Short Discourse on Tyrannical Government, A.S.
McGrade (ed.), J. Kilcullen (trs.),
OP: Guillelmi de Ockham, Opera Politica, ed. H.S. Offler, vols. 1-3 (Manchester: Manchester University Press, vol. 1 1940, second edn. 1974; vol. 2 1956, vol. 3 1963), vol. 4 (Oxford: Oxford University Press for the British Academy, 1997).
OQ: William of Ockham, Octo questiones, in OP vol. 1. Partial English
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