~~~ ~ can citizens into mere subjects of an unbridled judicial elite. On Natural Law and Natural Rights RALPH MCINERNY The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625, by Brian Tierney, Atlanta, Georgia: Scholars Press, 199 7.380 pp. Liberty, Right and Nature: Individual Rights in Later Scholastic Thought, by Annabel S. Brett, Cambridge: Cam bridge University Press, 199 7.254 PP. IN ROMAN LAW, right or ius was chiefly a property of things, their proper relation, not a claim residing in individual agents because of their status as human beings. This has its roots in Aristotle s concep tion of the right or just thing, to dikaion. In recent centuries the notion of right has become all but synonymous with claim-rights which inhere in persons as such and which political arrangements must take into account. Everyone agrees that this is a noteworthy change. How it came about is an intriguing historical question. No one has cast more light on that question than Professor Brian Tierney. Theldea ofnaturalrights brings together hitherto ungathered essays, many of them quite recent. Students of Tierney would be grateful only to have h ~ MCINERNY ~ w is MichaelP. CraceProfessor ofmedievalstudiesanddirectorof the Jacques Maritain Centerat the UniversityofNotreDme. He is the author of many scholarly works as well as popular fiction. easy access to Villey, Ockham and the Origin of Individual Rights, so that the dozen other studies make this book a feast indeed. A few years ago in Rome, I picked up Michel Villey s Questions de saint Thomas sur le droit et lapolitique. It was anew book (1987) and the author, too, was new to me. 1 read the book on the plane coming home and was enthralled. The book is largely a meditation on key articles in Aquinas s Treatise on Law. Villey s a p proach was fresh, unusual, and, I perceived, related by way of modification to previous things he had written. During the next months I acquainted myself with some aspects of the vast scholarly production of Villey. Did others know of him? In 1988 I was a visiting professor at Cornell and at a dinner party found myself seated next to Brian Tierney. The name was legendary, but at the time I knew his work scarcely better than I had known Villey s. At a given point in the conversation, it occurred to me to ask Tierney if he knew the work of Villey. I will not say that he levitated with delight, but clearly I had put the right question. To that point, Tierney had been witty and entertaining; from then on, he became authoritative and dazzling. A few days later he gave me an offprint of the study of Villey that figures in chapter one in this collection. If one were to seeka model of engaged objectivity in a scholar, this essay would serve. Villey died in 1988 and it is doubtful that he was treated more fairly by St. Peter than he had been by Tierney. It is possible, indeed tempting, to pluck arresting sentences from Villey and try to read everything he wrote in their light. Tierney paid Villey the enormous compliment of seeing that the French scholar s thought hadaltered, that sometimes he expressed himself more apodictically thanatothers, that his work represents a precious and complicated achievement, however flawed. Villey had 174 Spring 1999
a tendency to see the history of law as a declension from the clarity of Roman law. Things began to go bad in the Middle Ages, went really bad in Second Scholasticism, and, in modern times, have led to hilarious declarations of rights which seem to be little more than whimsical wish-lists. There is something to this account-and certainly the culminating criticism is well-founded. It is in the historical period Tierney has made his own that Villey has located the beginning of the dissolution. Villey is led, in his reading of Aquinas, to insist on a distinction between ius and lexwhich, while there, does not permit the use of natura hurnana rnutabilis est that Villey wishes to make. Tierney rightly summarizes, It seems, then, that Villey s case fora consistent distinction between droit nature1 and loi naturelle in Thomas cannot be sustained. If Villey had a keener appreciation for the analogous use of terms in Thomas, something exhibited in Thomas s use of both lex and ius, he might have maneuvered more effectively through the texts. It is this either/or tendency in Villey which exposes him to criticism and which dims what is undoubtedly a major scholarly contribution. Admirers of modernity might be supposed to be ready to accept the view that only recently have we managed to get it right about human beings and social and political relations. Declarations of rights inherent in human beings as such are a starting point that set the modern off from the premodern. Critics of modernity might correspondingly agree on the contrast but insist that the modern move is open to devastating objections. Villey, as Tierney points out, was a structuralists before the fad, and insisted on the need for a context, a network of practices, to provide the habitat of what is a right. Somewhat similarly, Alasdair MacIntyre was able to dismiss the very concept of rights by arguing that the carrier of rights is the unencumbered individual; but there are no unencumbered individuals; therefore rights do not exist, there being no carriers of them. Moral concepts, MacIntyre insisted, require traditions and practices for their very meaning. William Ockham provides Villey with the definitive turn away from the classical notion of right. Nominalism and subjective rights are logically linked by Villey, and this is a link that Tierney effectively questions. In doing this, he makes a broader philosophical point. We can define the relationship of parents and children in terms of an objectively right order. Or we can define it in terms of moral precept- Honor thy father and thy mother. But we could also define the same relationship by saying that parents MODERNAGE A Quarterly Review IS AVAILABLE ON THE NEWSSTAND Look for MODERN AGE Modern Age 175
have a right to the respect of their children. Villey-like some disciples of Leo Strauss, Tierney adds-is simply wrong in saying that the notion of subjective right is logically incompatible with classical natural right. As proof of their compatibility, he cites the work of Jacques Maritain and of John Finnis. If Villey s view is that the Middle Ages saw the beginning of the disintegration leading to the chaos of modern legal theory, Tierney has a decidedly different view. He counters Villey s denial that non-nominalist thinkers adopted subjective rights and then says of subjective rights that it was a characteristic product of the great age of creative jurisprudence that, in the twelfth and thirteenth centuries, established the foundations of the Western legal tradition. For all that, he grants Villey that there have been abuses of rights language by many modern theorists, but invokes against him the Thomist principle that abusus non tollit usum. One of the great merits and attractions of Tierney as ascholar is that, while insisting on the flaws of his opponent s overall position, he accords him the respect of having a basis for what he says and thus in the end finds room for a modified Villey within his own approach. What now of Tierney s own position? The passage quoted above could convey the idea that there are different languages in which we can express the same legal truth-those of objective right, moral precepts or subjective rights. Tierney is clearly impressed with the work of Maritain in showing the fundamental compatibility of natural law and natural rights. As with the work of Finnis, this suggests a kind of conceptual or logical equivalence of the modern and the premodern. Of course, if subjective rights are present even in Roman law, this contrast of the modern and premodern may seem tendentious to the degree that it is defined in terms of sub- jective rights. But is there anyone who would wish to say there is not a difference in emphasis in Aristotle and Roman Law, on the one hand, and those who draw up universal declarations of human rights? Surely not. The claim of conceptual equivalencethat is, the claim that one can express rights in the language of natural law-is a logical and not an historical point. The presence here and there in antiquity and in the early Middle Ages of an appeal to subjective rights must always be linked to the more fundamental view that is captured in the theory of natural law. It is not an alternative to it, but a feature within it. The achievement of Maritain in Man and the State, arguing that natural law and natural right are compatible, is undeniably impressive, and Chapter 8 of Finnis s NaturalLawand Natural Right is perhaps the best available statement of the mutual implications of rights and duties. But what does this prove? It is one thing to say that the traditional outlook, call it the natural law universe, can accommodate the notion of subjective rights; these can even be regarded as evolving naturally from it (Tierney) and making a major contribution to it (Finnis), but this does nothing to address the fact that modern natural rights theories were advanced as alternatives tonaturallaw. The natural law theorist may be able to express his views in rights language, but would the proponent of rights be able to repay the compliment? Of coursetierney does not want to suggest that the developments he has done more than anyone else to chronicle and interpret amount to little more than the fashioning of an alternative language. He speaks from time to time of excessive proponents of subjective rights and seems to mean those who do not have a view of the human agent which is the source of those rights. But what is one to do with proponents of subjective rights who are skeptical of or dismissive of the 176 Spring 1999
very notion of nature or of a given order of things? Is MacIntyre perhaps a better reader of the signs of the times in seeing conceptual chaos in rights claims that are unanchored in a human nature? Tierney s Conclusion to this collection makes it clear that he needs no instruction on the excesses and limitations of rights talk. Furthermore, by invoking Pope John XXIII s Pacem in terris, he makes clear his own understanding. Rights and duties flow from the percep tion of human beings as endowed with intelligence and free will. The popes of our age, who have embraced so enthusiastically the idea of natural rights, after their predecessors condemned it for many years as an irreligious, Enlightenment aberration, have been returning, unwittingly perhaps, to a tradition rooted in Christian jurisprudence and philosophy of the Middle Ages. But the popes who adopt the language of rights and those who condemn them are not in disagreement with one another. Rights are condemned when they are forwarded on Enlightenment assumptions hostile to and incompatiblewith Christianity; rights are invoked insofar as they are attached to the perception of human nature Tierney cites. He can sustain his irenic stance only by suggesting that it was the epigones of the Enlightenment who invoked, doubtless unwittingly, a tradition rooted in Christian jurisprudence and philosophy. Tierney sees two major problems for human rights. First, the almost absurd inflation of rights talk that had caught the attention of Villey, MacIntyre, Mary Ann Glendon and others. Second, in many places the most elementary rights are denied subject peoples. But it is the conceptual problem that remains the most fundamental. However true it may turn out to be that the medieval roots of rights theory of which Tierney has been the principal historian is not a product of atomistic individualism, however true it is that rights theory could in the medieval period coexist with quite different metaphysical outlooks, the common belief in man as created in the image of God underwrote the conviction in the existence of a human nature. Tierney has argued that Ockham s nominalism is logically independent from his contributions to incipient rights theory, and vice versa. But the question remains whether Ockham s metaphysics is not radically incompatible with the basic underpinning of his moral theory. Professor Brett s Liberty, Right and Natureconcentrates on individual rights in later Scholastic thought. She gives us a close study of a pair encountered in Tierney, dominium and ius, and argues that while originally equivalent in the Franciscan poverty literature and providing a link between property and liberty, and rooted in the positive dignity of man, the equivalence becomes diluted in the casuisitc literature to a juridical hold over a thing or person and was expanded beyond spiritual beings to all of nature. Nonetheless, Francesco de Vitoria ignored this diluted casuistic understanding and returned to the earlier reliance on spirituality, reflexivity, and liberty. The chapters concentrate on particular centuries, but do not follow chronological order; the chapter on the fourteenth century precedes the chapter on objective right in the Thomist tradition, but then the account extends beyond the thirteenth century. Chapters three and four are particularly interesting, but then thewhole bookis interesting. Brett brings a sharp and knowledgeable eye to everything she treats, and casts new light on even apparently well-worked subjects. Her pages on the relevant chapters from the Summa theologiae on ius and lex are packed with sentences and paragraphs which could have been expanded far beyond the space she devotes to them. This gives them at once a praiseworthy pithiness and a teasing tendentiousness. Modern Age 177
Often this is because she accepts without rehearsing them the arguments of others. For example, she accepts Gauthier s claim that Thomas s commentaryon theser,tencesrelates to the rnoral part of the Summa theologiaeas expositio to quaestiones. And, in agreeingwith John Finnis that the natural inclinations so important in the Summa theologiaelaliae, q. 94, a.2 do not involve a hierarchy, she says they do involve a series. And then we find this sentence: Thus those things to which irrational natures incline and which constitute their goods are equally goods to which rational natures incline and, and not in any sense lesser or subordinategoods. This is anonsequiturwhich trades on the amphibolous use of equally. But it would be churlish to leave the impression that Brett s is anything other than a book from which anyone can learn and which proceeds with a care and taste for the truth that is wholly admirable. Both Tierney and Brett, in their different ways, subscribe to the view that the once received opinion about the ravag- ing effects of nominalism has been overturned by recent scholarship. (Aversion of this can be found in Servais Pinckaers s The Sources of Christian Ethics [ 19851, 191-323). Still, both scholars refer respectfully to Michel Bastit s La naissance de la loi moderne, which is an energetic rearguing of the thesis of Villey. It could be said that Bastit does not confront the obstacles to his thesis. It must be said that the whole matter of the relation between casuistry and moral theology, between the moral theologians and the expositors of the Nicornachean Ethics, and of the correct comparison between members of the two great mendicant orders, is very much still on the table. On the outcome of that continuing discussion will depend what can defensibly be said of the relationship of modernity to its predecessors. The magnificent scholarly work of Brian Tierney and now Annabel Brett will be at the center of the discussion. Kibitizing will be those who, like the reviewer, retain a perhaps visceral preference for the Michel Villey approach. Intercollegiate Studies Institute: @ IDEAS IN ACTION For nearly half a century, the Intercollegiate Studies Institute has worked to educate for liberty. As the leading exponent on America s college campuses of conservative principles and the traditional liberal arts, each year IS1 provides a wide array of educational opportunities and enrichment programs to more than 50,000 faculty and student members. Membership in IS1 is offered free of charge to faculty and current students. 0 Free subscriptions to The Intercollegiate Review and CAMPUS Opportunities to host top lecturers on your campus 0 Special programs for IS1 Honors Fellows 0 Conferences, colloquia, and seminars 0 Guidance on how to form a campus discussion club or student newspaper 0 Cash prizes for essay contest winners 0 Opportunities for fellowship support for graduate studies, and much more... For more information, contact: INTERCOLLEGIATE STUDIFS INSTITUTE P.O. Box 4431 Wilmington, DE, 19807-0431 (800) 526-7022 Visit our Web Site at: www.isi.org. 178 Spring I999