By Gillian Richards, The Catholic University of America
Critics of natural rights theory often say rights language is primarily concerned with liberties. As Mary Ann Glendon put it in her book Rights Talk, “Claims, and powers, and the emphasis on duties and obligations has largely been lost. Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common” (Glendon, 14). Thomists, in particular, have argued that duties need to be at the forefront of the conversation about rights. Modern rights theorists, then, omit this crucial task. Some also claim there was an inseparable break, or “watershed,” between traditional natural law thinkers and modern natural rights theorists such Locke and Hobbes.
While there may not be strict continuity between ancient, medieval, and modern thinkers, I will argue that Aquinas’s understanding of jus is compatible with certain understandings of natural rights (notably, John Locke’s). We may not be able to reconcile some modern thinkers, such as Hobbes, with Aquinas. But natural law theory agrees in various ways with Locke’s understanding of the state of nature and of nature’s God. Locke’s emphasis on the individual, and rights stemming from the property the individual has in his person, may make his account distinctly modern. Yet, Locke retains a robust distinction between Creator and creation, which shapes his understanding of the law of nature in such a way that his account in crucial ways reconcilable with Aquinas’s theory of natural law. That said, a robust theory of natural law as articulated by Cicero, Aquinas, and John Finnis gives theories of natural rights their ultimate coherence.
Aquinas on Jus: John Finnis
The subjectivity of natural rights language is often cited as evidence for the divergence of the natural rights and natural law tradition. Indeed, thinkers such as John Finnis originally argued there is no such doctrine of subjective rights Aquinas’s thinking. Others, such as historian Brian Tierney, argue that although Aquinas did not use “right” in a subjective sense, it was nevertheless an idea popular in the Middle Ages. Fr. Dominic Legge—as will be discussed in a later section—makes the persuasive case that Aquinas did, in fact, hold a theory of subjective natural rights that coincided with his teleology.
New natural law theorist John Finnis acknowledges in Natural Right and Natural Law that jus was used in Roman law. He believes there was a “watershed” or turning point, however, in which the word “jus” took on a new meaning. Finnis argues that Aquinas primarily used jus to refer to the “just thing itself” (Finnis, 206). Aquinas, then, seems to use “jus” in the sense of what is fair or right—Finnis argues Aquinas’s account is primarily of “arights” rather than rights (206). The shift takes place, according to Finnis, when a few centuries later Suarez identifies jus as a “kind of moral power which every man has, either over his own property or with respect to that which is due to him” (206). Suarez shifts the focus to the individual subject: for Finnis, these distinct accounts of jus is evidence of a watershed that was crossed sometime between Aquinas and Suarez. Following from Suarez, Hugo Grotius, in De Jure Belli ac Pacis, defines jus as “a moral quality of the person enabling him to have or to do something justly.” Jus, for Grotius, is “something someone has,” primarily “a power or liberty” (De Jure, I.I.iii). Similar to Suarez, Grotius shifts the emphasis exclusively to the beneficiary of the relationship (Finnis, 207). Such natural right thinkers as Suarez and Grotius conceive of rights as something a person has (a “moral quality”) rather than what is “just in a given situation,” as Aquinas believed (208).
Ultimately, we arrive at Hobbes, who wrote: “Jus, and lex, right and law… ought to be distinguished; because right consisteth in liberty to do, or to forbear; whereas law determineth and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent…” (Finnis, 208). Locke did not adopt such a radical conception of rights as divorced from duties; yet, according to Finnis, he did conceive of rights as fundamentally “liberty-rights” in the way Hobbes did.
In sum, Finnis sees the modern notion of rights as divorced from the original understanding of rights and duties as intimately connected. There are indeed two understandings of jus at play here: on the one hand, what is objectively right is understood as jus; on the other, it is understood as a subject’s liberty to do X. In the latter, distinctly modern view, the emphasis is on the subject, and is divorced from any notion of duty or objective order—Hobbes can be seen as the prime example of this latter view.
Brian Tierney makes a similar argument in his essay, “Origins of Natural Rights Language,” in which he analyzes the shift from the classical to modern understanding of jus. According to Tierney, jus naturale originally meant “cosmic harmony or objective justice or natural moral law” (Tierney, 618).
When did jus acquire this new, subjective sense? What historical circumstances precipitated this shift? As he puts it, the “simple-looking little phrase, jus naturale, is a semantic minefield” (619). The main use we are concerned with is jus in the sense of objective law or subjective right. W.N. Hohfeld gives a taxonomy of rights language that proves helpful in navigating modern “rights talk.” According to Hohfeld, there is no legal relationships between persons and things, but only between persons relative to a thing. As such, there are four meanings we ascribe to rights: claim rights, liberty rights or privileges, power rights, and immunities. Modern theorists following from Hohfeld often emphasize the freedoms, claims, and powers aspect of rights, over and above the duty and moral obligation dimension of natural rights. Two modern views of rights can be discerned: interest/benefit theory, and choice/will theory. Choice or will theory emphasizes the powers individuals have in their protected spheres in which they are sovereign. Benefit or interest theory, by contrast, holds that rights protect benefits due to someone.
Suarez would prove to be a kind of precursor to this modern understanding of rights, when he defined jus “in terms of the powers and claims of an individual” (621). Grotius incorporated multiple meanings in his definition of jus: among them, jus is a) “what is just,” b) a “dictate of reason,” and c) a “moral quality or power.” This third meaning was a uniquely subjective understanding of jus. What is key, however, is that both Grotius and Suarez seem to retain a distinction between subjective and objective jus. Grotius, at least, seems to give proper credit to both senses. Hobbes, in contrast, would ultimately claim the subjective sense is the only proper sense of jus. Tierny points out that Hobbes’s definition differs from the preceding thinkers in that he only emphasizes the subjective quality of rights language and excludes any notion of moral rightness. One may not agree with Finnis’s thesis that Aquinas had no notion of subjective rights, and that there was a significant shift from his thought to that of later natural rights thinkers such as Suarez and Grotius. It is clear, however, that there was a break in thought once we arrive at Hobbes’s understanding of right and law. Indeed, as Ernest Fortin wrote in his Collected Essays,
The real ‘watershed’ in the history of the rights doctrine is not to be located somewhere between Thomas and Suarez; it occurs with Hobbes, who set the stage for all subsequent discussion of this matter by denying that human beings are political by nature (something that Suarez and Grotius never did) and by proclaiming the absolute priority of rights to duties (Fortin, Collected Essays, 2:273).
The real intellectual break, it could be argued, took place with Hobbes’s divorce of natural rights from natural law. As Finnis points out, other prominent natural rights theorists, notably Locke and Pufendorf, did not accept this division—even if they did conceive of rights in a more modern sense. This contradicts the claim intellectual historians often make that Locke and Hobbes can be neatly paired under the same category of “Enlightenment liberalism.” Since both philosophers are modern, both are often portrayed as working in tandem in originating a modern natural rights theory that breaks fully with the past. This view is misguided for several reasons, however. As I will show in the next section, Locke retained aspects of traditional natural law thinking, which distinguishes him from Hobbes’s more radical philosophy.
John Locke: Laws of Nature and Nature’s God
In Locke’s state of nature, each man has property in himself. This claim is not as radical as it may see, however, since there is a more foundational moral order that dictates how people interact with one another. This is similar to Aquinas’s notion of commutative justice. Namely, no man may take the life, liberty, and property of another individual. This is what Locke describes as the “law of nature.” Locke’s understanding of each person having property in his or her own person might make him a distinctly modern thinker. As such, he believes the end of government is the preservation of the property which each individual has in his person. This is distinct from Aquinas’s view that the role of government is to promote virtue and provide what’s necessary for human flourishing. Locke arguably has a simpler conception of the role of government, based in his understanding of self-ownership.
It is worth noting the notion of property within oneself appears distinctly modern and divorced from classical natural law theory. As Adam Seagrave argues in The Foundations of Natural Morality, however, there is a way to reconcile God’s ownership of and providence over mankind with the self-ownership of each individual (Seagrave, 39). According to Locke, God’s workmanship is the source of all creation, including ourselves and the property we have over ourselves and other things (47). Locke, then, proves to be more in line with natural law thinkers in his discussion of the law of nature. The state of nature has rules supervening on how individuals may interact with one another—namely, given that each has property within his own person, no one may violate the property within another. As he writes in his Two Treatises on Government:
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions… (and) when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.
This property in each person is the basis for documents like the Declaration of Independence, and Bill of Rights, which assert certain rights which the government may not abridge.
Locke retains an understanding of the natural law: property in oneself ultimately stems from God’s providence, which takes precedence over the providence humans have over creation. Locke later makes a key distinction between human beings as such and unique selves: not only are we substances, composed of a body and soul, but we are also individual persons with unique personalities. In this sense, when Locke speaks of people as having property within themselves, he is referring to this latter sense of human existence (individuality, personhood). Not only are we body-soul composites, with intellect and a will—we also have a subjective dimension of our existence. This understanding of personhood and self-consciousness is what ultimately underlies the modern conception of rights. (As will be demonstrated, however, there is a way to reconcile this view with Aquinas’s and later Thomist’s understanding of the subjective jus.)
In Locke’s Second Treatise on Government, he references a natural law which obliges everyone and is known by reason—he affirms this through this “workmanship” argument. That is, insofar as man is the workmanship (or handiwork) of God, the natural law stems from our humanity. Locke, then, would ultimately seem to think the natural law, or “law of nature,” takes priority over natural rights. This sets him apart from Hobbes, who believed natural rights are fundamental and we derive natural law from them (rights are about freedom, and law is about placing checks on those freedoms, according to his view). For Locke, by contrast, Divine ownership informs his understanding of self-ownership, since we are God’s creation (Seagrave, 53). In other words, Locke’s philosophy of rights is not divorced from his understanding of natural law and moral obligation. This is much closer to the Thomistic understanding of rights and duties than Locke’s critics often give him credit for.
At the same time, Locke’s political philosophy appears more modern since he says the “chief end” of political society is “the preservation of [individuals’] property [rights].” Thus, it is the primary goal of government to protect natural rights rather than implement the natural law. In this way, Locke is more of an individualist in that he is focused on protecting the rights of individuals in a political community, and less focused on promoting virtue.
This emphasis on the individual self (and with that, self-consciousness and personhood) seems to diverge from the earlier conception of natural law and natural rights. Aquinas, who arguably held a view of subjective natural rights, would maintain that it is the natural ordering of the world and of morality which provides the basis for rights, rather than the “selfhood” of individuals. Yet perhaps Locke’s emphasis on the individual is merely another way of framing the discussion. As Locke sees it, self-consciousness and self-ownership make us unique individuals, and as such we have the right to life, liberty, and property—all of which stem from our self-possession.
While the Thomist and natural lawyer may not agree with all of Locke’s philosophical assumptions, there is a way to reconcile what he sees as fundamental rights with a richer account of natural law. Ultimately, if we conceive of natural rights as rooted in the natural law tradition, then there is a way to reconcile Aquinas’s account with that of later modern thinkers such as Locke.
Natural Law: Cicero
Three key thinkers in the natural law tradition, who would lay the groundwork for later modern thinkers in the natural rights tradition, are Cicero, Aristotle, and Aquinas.
Cicero’s basic formula, which can be understood as a precept of the natural law, is that reason commands and appetite must obey. This precept takes the form of an obligation, not merely a suggestion—threat of punishment or promise of a reward is attached to such a command (Seagrave, 95). The punishment accompanying the failure to act in accord with reason is primarily the alienation from one’s nature. Ultimately, as Cicero sees it, there are intrinsic rewards and punishments that accompany the natural law and whether one follows it. Since the natural law issues from one’s humanity, violating the natural law would involve the deprivation of that good proper to the natural law.
Cicero, in line with Aristotle, places human nature in a hierarchy with other natures (plants, non-rational animals, etc.). The distinguishing feature of human nature is reason—which is thought to be the formal element of human nature. As Cicero puts it, “Law is the mind and reason of the prudent man” (97). According to this view, law is not a function of will as such, since the prudent man is one who acts in accord with practical reason. Thus, Cicero does not conceive of law in an arbitrary or voluntarist way, but rather as an ordinance of reason. Indeed, Cicero’s understanding expresses the idea that the primary precept of the natural law is to act in accord with reason (echoing his blueprint of reason commanding and appetite obeying, as well as Aristotle’s view that reason is the distinguishing feature of human nature).
Cicero and Aristotle would provide the framework for Aquinas’s later account of natural law. Following Aristotle, Aquinas distinguishes among the powers of the soul (the vegetative, sensitive, appetitive, locomotive, and intellectual)—humans possess all five. The fifth power of intellect distinguishes humans from other, non-rational animals. Further, Aquinas sets out another principle in line with Aristotle: the greater self-movement an animate thing possesses, the less dependent it is on matter.
Of all material creatures, humans are the freest from matter in virtue of the intellectual soul (103). In other words, we are the cause of our own actions. This agency we have in virtue of our human nature works as a “legislating source of the natural law” (110). Humanity, as such, is instantiated in each particular human—that is, the universal of “humanness” is shared by all particular members of the human species. We all have a shared nature which can be predicated of each of us, yet each of us is not separable from the universal category of humanity. Human nature, then, is different from each individual’s self-consciousness, which depends on humanity and cannot be separated from it.
Seagrave ultimately argues that humanity acts as its own legislator. “Humanity” is distinct from each individual, and “it issues commands to human beings as individuals that are directed toward their good, include rewards and penalties, and are sufficiently promulgated, we may speak of human nature as a legislator…” (112). This understanding incorporates Cicero’s original insight that law is the judgment of the practically reasonable man. A key insight in Seagrave’s analysis of Aquinas’s natural law theory is that human nature is the “legislating source of the natural law.” This provides an important bridge from the classical natural law tradition to Locke’s natural rights tradition.
From natural law to natural rights
For John Finnis, it is a principle of practical reason that there are fundamental human rights. As he lays out in chapter five of Natural Law and Natural Rights, it is a requirement that one never acts directly against any basic good or value. Such basic values are “not mere abstractions; they are aspects of the real well-being of flesh-and-blood individuals” (Finnis, 225).
Finnis’s account of basic goods serves as a kind of reformulation of Aquinas’s account of natural law and the principles of practical reason. We pursue basic goods guided by practical reason, which we can know on the basis of natural law and human nature. Dictates of practical reason, guiding how we pursue basic goods, can be reformulated as duties or obligations. If it is in accord with human nature and practical reason to do X and not Y, it could be said I have a duty to do X and not Y. An example could be the duty to worship God. Not only is worship in accord with human nature, but there is also an obligation to worship God in the way one sees fit—a duty we know by reason and by revelation. At the same time, this obligation can be reformulated as a right: if I have the duty to worship God in the way I see most proper, I have the right to follow this moral obligation. This places duties upon others to respect my right to practice my religion (inasmuch as my religious practice does not infringe upon others’ basic rights).
Duties that we have in light of practical reason may entail “exceptionless or absolute human claim-rights—most obviously, the right not to have one’s life taken directly as a means to any further end” (225). Finnis provides a list of other claim rights (e.g., the right not to be lied to), which all have their basis in the basic goods. Among the basic goods are life, friendship, religion, and so forth. Such a notion of basic goods is ultimately rooted in Aquinas’s discussion in question 94 of the Summa Theologiae.
The American Context
It is clear, in both Aquinas and Finnis’s discussions of “right”, that rights individual possess are ultimately rooted in an underlying moral order. Namely, there is a jus dictating what is right or just. This jus is the basis for natural rights—among those, the right to life, liberty, and property, as Locke believed. This view is articulated in the U.S. Constitution and Declaration of Independence. Although such documents are often viewed as modern inventions, they are not entirely divorced from Aquinas’s natural law theory. Indeed, the Founders explicitly anchored natural rights in nature and nature’s God. This certainly reflects Locke’s view of property in oneself as ultimately deriving from the Creator and of Divine providence permeating all aspects of life. But, as previously shown, this view does not contradict the classical natural law theory.
How, then, do we explain where we are today? Critics of rights-talk often claim the Founders planted the seeds for the kind of modern, individualism we see in Western culture. Justice Anthony Kennedy’s infamous opinion in Planned Parenthood v. Casey can be taken as the prime example of a distinctly modern conception of liberty and rights: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
But is Kennedy’s claim really a natural outworking on the American Founding? There are two competing explanations for the “Mystery of Life” passage: a) It reflects a rupture with the prior understanding of jus, lex, freedom, and justice, or b) Justice Kennedy’s mystery of life quote is just a full articulation of the line of thought the founders began.
David Walsh articulates the problem thus:
The relentless extension of the liberal language of autonomy has removed a common moral framework from our society… The more fractured and fractious the assertion of our rights to personal freedom, the more the idyllic integrity of a communitarian era beckons us. Who wouldn’t be drawn by the wholesome images of family and neighbors pulling together through the ups and downs of life, rather than the cacophony of rights claimants that seems to dominate our own noisy public square? The only difficulty is that we haven’t a clue about how to get from one to the other. Merely cutting back the government won’t bring about a deeper change. Neither will endless talk about the need for personal responsibility and a new ethos of civility within civil society. Without tackling our specific moral responsibilities such talk is empty rhetoric.
The issue, then, would not seem to be autonomy per se, but the separation of autonomy from a deeper moral order. This may be the key issue characterizing Justice Kennedy’s “Mystery of Life” passage. As Walsh makes clear, assertions of individual rights lose their significance when divorced from a natural law framework. The Founders—nor even Locke—can be said to have made this mistake. Indeed, they understood the reality of inalienable rights in the context of a law of nature and nature’s God.
Aquinas’s subjective rights
If it is not subjective rights that are per se to blame for the hyper-individualistic rights language, but rather the separation of rights from a deeper moral order, to what extent is a subjective notion of right rooted in Aquinas’s own thinking? Fr. Dominic Legge makes the argument that Aquinas did, in fact, have a notion of “subjective” rights embedded in his theory of natural law—although Fr. Legge ultimately discards the distinction between objective and subjective rights. According to Legge, “[L]aw and justice, and consequently any theory of natural rights, should always be understood in terms of an overarching order to the good” (Legge, 129). Jus, then, is an ordering according to reason to the good (131).
More specifically, jus is the object of justice. Fr. Legge writes that jus involves “what is due to someone in view of the complex ordering of individuals and communities to the good” (139). This idea of ordering to the good is a key part of jus for Aquinas. It stands in contrast to the voluntarist account of law as purely a function of the will—either God’s or that of a sovereign. Aquinas’s view, that law is “an ordination of reason for the common good, made by one with authority, and promulgated” echoes Cicero’s view that law is the mind of the prudent man.
As Fr. Legge puts it, “Aquinas very explicitly speaks of what is objectively ‘due’ to someone as a subjective ius or right that he possesses and can assert” (133). Of course, the basis upon which Aquinas believes we can make rights claims is the natural law. As Aquinas writes in a quodlibetal disputation:
It would injure Jewish parents if their children were baptized notwithstanding their objections, because it would violate their right of parental governance. . . . It is of natural right that a son is under the care of his father until he gains the use of reason, and hence it would be contrary to natural justice if, before a child has the capacity for free choice…, he were taken away from his parents’ care, or if something were ordered concerning him notwithstanding his parents’ objections (135).
In other words, Aquinas believes parents have a jus to govern and educate their children—this is a fundamental reality according to nature, and thus no law should interfere with it. As Legge writes, “Jus clearly has here a subjective dimension that is grounded in the natural order of things, and hence it pertains to the natural law: it is the ius of the parents to raise their own children, and to violate this ius would do an injury to the parents” (136).
The key point, however, is that this is not merely an assertion of subjective rights that are untethered from any objective order—rather, they are tied in an intrinsic way to a natural order of things—the natural law. Any subjective right claim (e.g., to educate one’s children) is rooted in a corresponding obligation as dictated by natural law and practical reason. Once children reach the age of reason, they are able to think for themselves and worship according to their own judgment and moral convictions. In this way, there is a possession of self which is the basis for equality among persons and ultimately the rights people are entitled to. Aquinas has an understanding of humans as free, rational creatures, which doesn’t seem too far from the autonomy more modern human rights proponents speak of.
Aquinas’s understanding of autonomy and independence, however, is rooted in a more fundamental foundation: namely, the natural and spiritual order. As creatures made with rational souls, in the image and likeness of God, and with freewill, we are obligated to worship God in the way we believe most proper. Conversely, we have the right to follow our conscience and worship in the way we see most fitting (as long as it does not violate the fundamental rights of others). As such, this right to conscience and religious expression and worship cannot be justly violated by any individual or authority. Here we see the interplay between objective and subjective rights. For Fr. Legge, this is an artificial dichotomy, for these are really two sides of the same coin.
Aquinas does not view jus in an individualistic or atomized sense, in the way many modern thinkers do. Rather, he sees jus, or right, as part of a larger whole in which man is teleologically ordered to his final end. In this way, Aquinas’s view of rights is rooted in his view that all humans share a common nature which includes a final end—union with God. As Fr. Legge puts it, the right to worship “does not belong to them as pure or absolute individuals, abstracted from the wider order in which man exists. Rather, that subjective right is itself another way of expressing how man is ordered to God. Man possesses reason above all so that he can be ordered to God through it.”
Later accounts of rights that are more heavily subjective often lose sight of the central truth that their account hinges upon: that justice, law, and jus are all aspects of an overarching ordering of individuals to the good, which ultimately consists of our final end (137). Voluntarist accounts of rights such as that of William of Ockham and Suarez see jus as based principally on will rather than upon reason, as oriented to the good. Hobbes’s account ultimately divorces the subjective aspect of rights from the objective, and discards the latter. Such accounts of rights as divorced from duties and an objective notion of jus effectively cut the branch off from which they are sitting. A coherent vision of natural law, as set forth by Cicero, Aristotle, and Aquinas most fully, articulate a teleological view of nature and of man. Such a vision ultimately gives modern theories of natural rights their coherence.
As Aquinas argued, natural law is promulgated through our own rational actions. The intelligibility of human action rests in our ability to make deliberate choices among goods. Further, our powers work best when directed toward their proper objects. This, for Aquinas, is the role of virtue. Since virtue is part of the natural law, then there is not a conflict between natural rights—rightly defined—and natural law theory. Indeed, the natural law is about freedom in the same way natural rights are: rights and law are just two ways of articulating the same central idea of morality and truth.
As Finnis articulated in Natural Right and Natural Law, there are basic goods which we pursue as ends in themselves, under the guidance of the principles of practical reason. Case in point: there is the basic good of life, and one must never act directly against such a basic good as a matter of practical reason. Reframed in terms of rights language, I have the right to life and others have the duty to not directly act against my life as a basic good. Thus, rights and duties are just two ways of expressing the same essential reality. Finnis argues, regarding the shift in meaning of “right”: “There is no cause to take sides as between the older and the newer usages, as ways of expressing the implications of justice in a given context. Still less is it appropriate to argue that as a matter of juristic logic duty is logically prior to right (or vice versa)” (Finnis, 210). He continues that “when we do come to explain the requirements of justice, which we do by referring to the needs of the common good at its various levels, then we find that there is reason for treating the concept of duty, obligation, or requirement as having a more strategic explanatory role than the concept of rights.”
In other words, right and duty are two sides of the same coin. One may have more explanatory power than the other depending on the context, as in cases bearing on the common good. But duty can equally be framed in terms of a right.
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