Natural Law and Human Rights

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or all others, is fundamental and Villey traces its origins to the so-called

Second Scholasticism, the Iberian renaissance at Salamanca when, because

of the unnoticed inroads of nominalism, rights began to be spoken of as

inherent in individuals.[2] Villey‟s association of human rights and nominalism

has been contested,[3] and of course Villey‟s insistence would have been

unnecessary if there were not many who argued for a continuum between

the ancients and moderns.

Perhaps no one would disagree with Villey‟s reading of Aristotle, the

Roman jurists, and St. Thomas Aquinas, when he argues that the just,

the dikaion, ius, do not name a quality or faculty or power of individuals.

That there is no suggestion whatsoever in ancient or pre-nominalist

medieval thought of rights in the modern sense has been contested,

however.[4] But even when Villey is accused of overkill in making his basic

historical point, most critics agree that the mark of the modern is to elevate

a theory of society and law on individual human rights and in this the

modern surely differs from the ancient and medieval. Moreover, Villey haspointed out, supposed instances of subjective rights in Gaius, for instance,

have a distinctly odd ring to them. For example, reading of a ius altius

tollendi, we would naturally think of this as a householder‟s right to add a

story to his house. But there is also a ius non extollendi, and this must sound

odd to us; what could it mean to have a right not to build higher? Unless of

course we imagined an ancient paterfamilias being importuned by his

household to lift his roof. But that is not what is meant. There are certain

situations in which it is fair, just, objectively right, for one to add to his

house and other situations in which it is not. What right means in that sense

is the object of the judge‟s sentence or judgment. Villey also draws

http://www.thomasinternational.org/ralphmc/readings/mcinerny000.htm#_ftn3













attention to the right of a parricide to be put in a sack full of vipers and

dropped into the Tiber. It is difficult to imagine a Human Rights Commission

coming to Lizzie Borden‟s aid to insure that she be given her rightful sackful

of snakes and a dip in the river.

Of course if Villey‟s point were merely a verbal one, namely, that the

term “right” has altered its meaning in the course of the centuries, we

might be reminded of C.S. Lewis and his Studies in Words. Lewis sought to

warn the modern reader that if he takes words in the sense they have

nowadays in reading Shakespeare, say, misunderstanding will ensue—words

like “genius” and “nature,” for example, have meanings in medieval and

Renaissance literature they do not have for us. But one cannot miss in

Villey‟s tone the assumption that we are witnessing, not merely an

alteration of meaning, but also a decline when the term “right” slides

toward an almost exclusive use as the claims an individual can make.

As a devout Catholic, however, Villey could not have missed the way

in which such documents of Vatican II as Gaudium et Spes and so many othermagisterial documents employ without hesitancy the language of human

rights.[5] Indeed, he dedicates Le droit et les droits de l’homme to John Paul

II “ fihialement ces quelques réflexions suscitée par son discours sur les

Droits de I’Homme.” In his later writings, he concedes that, given the

growth of the modern state, talk of rights as protective claims against state

encroachment makes increasing sense, but this is a reluctant agreement

since Villey remains convinced that most rights claims are chimeric.

I cite Villey here to stand for all those scholars who see contrast and

conflict between natural law and natural rights. Although he would not

perhaps see his views in terms of that division, Alasdair Maclntyre had been







one of the most eloquent recent critics of the notion of natural rights. His

criticisms can be attached to Villey‟s effort to derive natural rights talk

from the rise of nominalism and the emphasis on the individual. But

Maclntyre would underscore that the individual who is the supposed carrier

of rights simply does not exist. Natural rights theory imagines human beings

as monads prior to any interpersonal relations, lodged in no particular

culture or tradition. Since there are no such individuals, if natural rights

require such individuals, natural rights are chimeric indeed.

Lacking any such social form, the making of a claim to a right would

be like presenting a check for payment in a social order that lacked

the institution of money.[6]

In more recent books, Maclntyre has continued his critique of modernity,

but, as if in response to charges that he is a relativist, has honed the

techniques he feels are necessary if anything like communication between

different traditions is to take place.[7] It is a large question whether

Maclntyre can be located in terms of the opposition between natural law

and natural rights. For the nonce he does service in this paper as, along with

Villey, one of the most authoritative questioners of human or natural rights.

II. RECONCILING THE TWO TRADITIONS

While there are disputes as to when precisely it begins—and to some

degree about its novelty—the modern theory of human or natural rights is










generally recognized to be based on so different a view of man than that

which grounds natural law that any effort to reconcile these traditions must

seem quixotic. No doubt there are many who thoughtlessly use natural law

and natural rights as though they were simply synonymous. It is far more

interesting to find considered and serious efforts to relate and reconcile the

two traditions.

A. MARITAIN ON HUMAN RIGHTS

Jacques Maritain addressed the problem of natural law and natural rights

on a number of occasions, but for purposes of this paper, the treatment

in Man and the State will be taken as canonical.[8] The problem arises when

Maritain confronts the problem posed by the fact that signatories of the

1948 Universal Declaration on Human Rights held radically different views of

what is human and what is right, to say nothing of democracy, which figures

essentially in the document. Maritain states a thesis: men mutually opposed

in their theoretical conceptions can come to a merely practical agreement

regarding a list of human rights.

Maritain, who served as French ambassador to UNESCO, was not deluded

about the practical situation. The member states represent different and

conflicting ideologies, philosophical and religious traditions, cultures,

histories. Agreement by their representatives on such a declaration as that

of 1948 thus must seem either merely verbal or cynical or hopelessly

confused. The philosophical question that arises has to do with the rational

foundation of human rights. He puts his own cards on the table immediately.

“The philosophical foundation of the Rights of man is Natural Law” [80].







Distinguishing the many and various theories of natural law from natural law

itself, Maritain puts forth his own account which will “reestablish our faith

in human rights.”

The true philosophy of the rights of the human person is based upon

the true idea of natural law, as looked upon in an ontological

perspective and as conveying through the essential structures and

requirements of created being the wisdom of the Author of Being. [84]

Maritain sees a natural law tradition that goes back through Grotius and

Suarez and Francisco Vitoria to Thomas Aquinas (“He alone grasped the

matter in a wholly consistent doctrine, which unfortunately was expressed

in an insufficiently clarified vocabulary”).[9]The first element of natural law

is an ontological one, by which Maritain means that there exists a human

nature, thanks to which every human person is gifted with intelligence and

is capable of pursuing ends in a way for which he or she is answerable. This

nature is the basis for judgments of the normal functioning of the agent

whose nature it is. A proper understanding of what man is thus generates

knowledge of what man should be and do. The law of man‟s nature is a

moral law. This ontological element is both a given and an ideal.

Maritain calls the second element of natural law gnoseological, by

which he means our grasp or knowledge of the ontological element. This

knowledge is one of the prime instances of connatural knowledge: we do not

grasp the law of our nature in concepts and theories: “It is obscure,

unsystematic, vital knowledge by connaturality or congeniality, in which the

intellect, in order to bear judgment, consults and listens to the inner






melody that the vibrating strings of abiding tendencies make present in the

subject” [91-92].

Is Maritain unaware of the breach others have seen between the

natural law tradition and the tradition of human rights? Not at all. But he is

convinced that antagonism between the old and new rights of man is

overstated and far from insuperable. Here he has in mind as new rights the

social and economic rights insisted on by Marxists. By the same token, he

sees no insuperable obstacle to aligning natural law and natural rights in the

old sense.

One is nonetheless somewhat surprised at Maritain‟s confidence about

the compatibility of natural law and natural rights. Indeed, he takes modern

lists of rights as just what natural law is meant to ground. That there might

be other theories of those rights which are in conflict with his theory does

not disturb him because he has distinguished the knowledge of the natural

law from the natural law that is known. What is known is the way things are

and theories either get that right or they don‟t. The task then is not to getthe other theories to capitulate to his theory, but to get them all in accord

with what they purport to explain.

B. FINNIS ON RIGHTS

The very title of John Finnis‟ masterly book of a decade ago— Natural

Law and Natural Rights‟[10] —calls attention to the two traditions. Finnis‟

task is half completed before he turns to an explicit treatment of rights but

he then observes that his whole book has been about human rights, which he

takes to be synonymous with natural rights. Indeed, “The modern grammar







of rights provides a way of expressing virtualily all the requirements of

practical reasonableness,” the latter phrase itself being equivalent for

Finnis to the tradition of natural law.

Is Finnis unaware of the dramatic difference others have found

between natural rights and natural law? Far from it. He provides an

excellent sketch of the history of the use of the term ius from St. Thomas,

where it retains the sense it had in Roman law, to a dramatic shift that

occurs with Suarez and Grotius and peaks in Hobbes‟ opposition of ius and

liberty. With Locke “right” becomes all but defined as liberty. The major

difference, Finnis observes, is that in Roman law, the right was an objective

proportion, a relation, what the judge was guided by when he set things

aright. After the great change, however, a right is something someone has.

Despite this, Finnis is confident that rights talk provides both a

vocabulary and a grammar which will enable him to give an alternative

expression of the version of natural law he has developed in conjunction

with Germain Grisez. The treatment of rights by Finnis, far from beingmerely the appropriation of a grammar, amounts to a noteworthy

contribution to the theory. He adopts and adapts Hohfeld‟s analysis of

rights, according to which rights always involve a triadic relation between

one person, one act-description, and one other person. Claim-rights, liberty,

power, and immunity are deftly defined. For purposes of human rights,

claim-rights and liberties are most important, and claim-rights have duties

as their correlatives, while liberties have as their correlative the absence or

negation of duties. Whether or not a claim-right requires an identifiable

person for whose benefit the duty has been imposed is a matter of

stipulation. Finnis contrasts that technical problem with the philosophical





In short, as he predicted, Finnis is able to recast his whole theory into

rights talk. The benefit theory of rights has been shown by Hart to be only a

special case of the choice theory, so we are prepared for Finnis‟ steady

correlation of rights and duties. In his view, “the modern vocabulary and

grammar of rights” is an instrument for reporting and asserting the

requirements of a relationship of justice from the point of view of the

person(s) who benefit(s) from that relationship [205].

No wonder, then, that after having sketched the great shift in the

meaning of “right” that marks the modern age, Finnis says that there is no

need “to turn back the clock.” Indeed, he finds “the modern idiom of rights

more supple and, by being more specific in its standpoint or

perspective, capable of being used with more differentiation and precision

than the pre-modern use of „the right‟ (ius)” [209].

Accordingly, his treatment of the Universal Declaration of Human

Rights of 1948 provides not only a keen analysis but a general acceptance of

it and similar manifestos. His attention is drawn to the specification of what

can legitimately limit the exercise of a right. To say that the exercise of

human rights is subject to the common good is otiose, “For the maintenance

of human rights is a fundamental component of the common good” [218].

On the other hand, we can appropriately say that most human rights

are subject to or limited by each other and by other aspects of the

common good, aspects which could probably be subsumed under a

very broad conception of human rights but which are fittingly



indicated (one could hardly say, described ) by expressions such as

“public morality,” “public health,” “public order.”[12]

In other words, we could say all we have to say using rights talk alone.

Thus it is that John Finnis provides an extended basis for his

contention that natural law and natural rights can be regarded as two sides

of a coin, related generally as duty and right. The modern use of “right” to

mean something someone has turns out to be simply a restatement of the

requirements of justice from the side of the recipient, so to speak. But it is

not simply that the old talk can be translated into the new, Finnis shows a

preference for the new and on occasion goes to some lengths to sing its

praises. [220-2 1][13]

C. ROUSSEAU ON RIGHTS

The Rousseau I have in mind is not Jean Jacques but Felicien, whose

1982 book, a masterful reading of the fundamental Thomistic texts on

natural law, conveys the spirit of the Faculte de Philosophie at Laval

University in its golden age.[14] In the course of his excellent book Rousseau

takes exception to a remark of d‟Entreves to the effect that Thomas‟

account of natural law lacks that which is distinctive of the modern age,

namely a doctrine of rights.[15] Au contraire, says Rousseau, and proceeds to

argue the opposite.

















Car La connaissance de la loi naturelle, scion iui, repose tout entiére

sur une question de “droits,” et de droits réconnus par “la raison

naturelle,” donc de droits “inalienables” face a La legislation positive

de L‟Etat. Mais La coherence de son exposé, a ce sujet, est telie

qu‟elle n‟aurait jamais autorisé l‟attribution d‟une primautC a cette

forme de “droits naturels” transformés, sans pius, en revendications

subjectives. [159]

What rights does Rousseau imagine that Thomas teaches are grasped

by natural reason, even though he agrees that these cannot be transformed

simply into subjective claim-rights? His case for rights reposes on a remark

Thomas makes a number of times to the effect that, while sin obscures

natural law precepts having to do with love of God and neighbor, such

obscurity never extends to self-love and the love of one‟s own body.[16] Is

Rousseau suggesting that inalienable rights arise from self-love? Well, he

quickly dissociates Thomas from Locke, feeling the latter, under theinfluence of a decadent nominalism would turn men into little divine

monads. “For Thomas, man is by nature a sociable animal, made for living

with God and other men, according to his most proper inclinations. The

individual can claim „natural rights‟ only if he begins by recognizing his

duties with respect to the „natural rights‟ of others. From the outset, the

search by naturally sociable man for „his natural rights‟ is marked with the

seal of solidarity” [163].

In short, Rousseau is suggesting a reciprocity of duties and rights. If I

am obliged to give another his due, the reverse of this is that he is obliged

to give me my due. Rights-claims make no sense apart from this social






interaction. Fortin calls this a “stillborn attempt to demonstrate that

Thomas‟ doctrine is nothing but an earlier version of the modern „rights‟

theory, shorn of its individualism.”[17] The suggestion is certainly an

inference from what Thomas actually says since, as Fortin observes, “All of

the texts adduced in support of this paradoxical conclusion speak, not of

rights, but of duties and obligation.” Rousseau is not at all clear that what

he is proposing is a restructuring of Thomas‟ doctrine of natural law so that

it seems amenable to a rights interpretation, but in the course of this

discussion he is anxious to dissociate Thomas from the modern doctrine of

rights he was initially anxious to associate him with. Surely it is fanciful tocall the decalogue the oldest charter of the rights of man [173].

Despite the grandiose title of his book, Rousseau‟s claim that Thomas‟

doctrine of natural law is just as such a theory of natural rights, leaves

untouched the difficulties Maritain acknowledged and wholly lacks the

subtlety of Finnis‟ analysis of rights. One would have expected a sustained

and detailed effort on Rousseau‟s part to confront the human or naturalrights tradition and to spell out his contention that in Thomas we have a

version of rights theory without those aspects of it which make any natural

lawyer wary.

III. NATURAL LAW AND NATURAL RIGHTS

Thus far I have sought to show that there is a fairly clear opposition

between those who see the rise of natural rights as an effective rejection

both of natural law and the presuppositions of natural law and those who






see talk of rights as more or less easily graftable onto the tree of natural

law.

Were one to take this simply as a matter of the interpretation of St.

Thomas Aquinas or the exegesis of Thomistic texts, a division of opinion

would swiftly make itself known. On the one hand, there is the emphatic

and generally authoritative voice of Dom Odon Lottin, who states quite

categorically that there is no trace of the modern sense of a right in the

decretist or theological literature of the twelfth and thirteenth centuries. In

those texts, ius preserves what Lottin calls its primitive, objective sense. So

too, while to modern ears “law” evokes primarily the notion of obligation,

the binding of the will of its subject, the decretists and theologians Lottin

has studied see law primarily as a principle of order, a rule of life, a norm

for morality. That is why, he concludes, the medievals

used lex and ius interchangeably.[18] Whenever St. Thomas speaks of what

we would call a right, he uses such terms as “is licit” (licitum) or “power”

( potestas), as when speaking of private property, self defense, etc.

Others have found such claims astounding, and advance texts in which

right in the subjective sense seems in play.[19] The efforts of Maritain, Finnis,

and Rousseau, as indicated earlier, are not isolated irenic efforts, but

representative of a school of interpreters of St. Thomas.

I mentioned earlier that Michel Villey seemed somewhat startled to

find that his Church had come to use the language of rights with almost as

much abandon as anyone else. Rights claims proliferated in conciliar and

other magisterial documents. InDonum Vitae, Cardinal Ratzinger spoke of a

right to be born by natural childbirth. The pleasure the Catholic might find

in mocking growing lists of human rights is dimmed when he finds the











Magisterium addressing him with this same language. What is the

explanation of this shift?

In what I regard as an all but incredible account, Father Joseph Joblin,

in one of the two papers prepared for discussion at an international

conference organized by the Pontifical Council for Justice and Peace in

November of 1988, presents the emergence of human rights as the basis for

political society as pretty much an unequivocal plus and the Church‟s

adoption of this basis as more or less progress. He draws attention to the

remarkable change in the Church‟s attitude, but suggests that the change

may be more apparent than real. The Church‟s “conversion” on the matter

is put into quotation marks. Undeniably, there is the historical record of Pius

IX, Gregory XVI, and Pius VI. The last named pope commented scathingly on

the 1789 Declaration of the Rights of Man, calling it madness.

This absolute freedom is established as a right of man in society. It not

only guarantees him the right to not be disturbed because of his

religious opinions, but it also gives him licence to think, speak, write,

and even print with impunity everything which the most unbridled

imagination can suggest about religion. It is a monstrous right which

seems nonetheless to the Assembly to result from the innate quality

and freedom of all men . . . a chimerical right . . . contrary to the

rights of the supreme Creator.[20]

Not precisely the tone of Gaudium et Spes or of almost every

encyclical, allocution, and animadversion of the present pontiff.







Joblin formulates the following propositions to sum up what he calls

the historical development of human rights.

1. The thread or theme running throughout the history of Western

ideas is the deepening of the concept of human dignity.

2. The implementation of this concept today implies pluralism, given

the present-day intermingling of different civilizations and systems of

society.

3. The State can no longer be considered as being invested with the

mission of imposing a concept of human rights which becomes an

ideological or religious system.

4. The Church must be a sign of the aspirations of people for unity

despite their differences. Christians have the responsibility of

translating this need into their everyday lives by trying not to impose

their point of view, but by refusing to cooperate in those actions

which they judge contrary to the true interests of the human person,

whatever the consequences may be. [46]

By any reckoning, this is surprising. If the Church has not undergone a

conversion, it seems clear that Father Joblin has. But it is an uneasy

conversion. Does he really think there has been a deepening of the concept

of human dignity? Given the admitted, even celebrated, pluralism of

accounts of what that dignity might consist in, it is difficult to grasp his

point. Of the state, he accepts a purely procedural conception—the state is

a referee of supposed moral neutrality. “The Christian point of view” is



treated as a subjective quirk, not to be wished on others, though Christians

will not of course actively cooperate in activities injurious to “their

conception” of the dignity of the human person. If this were put forth sadly

as the best we can hope for, it would be one thing, but to have this meager

menu stand for progress is truly astonishing.

If there is to be any conjunction of the natural law tradition and

natural or human rights, the latter are going to have to be grounded in the

same thing as the former: the way it is—with the world, with man, with his

destiny. To speak of a pluralism in this regard would seem to be bankrupt

since among the plurality of views would doubtless be contradictory

opposites. That human society can be variously arranged in keeping with the

precepts of natural law is scarcely a deliverance of modern thought. But of

course that cannot be what Jablot means. He has defined human dignity in

such a way that the only legitimate regime would be democracy, but

participation amounts to pushing one‟s subjective views, making claims on

others, demanding exemptions from the judgments of others as to whatought to be done or what may not be done. No wonder Jablot embraces

human rights in what would appear to be the most impoverished sense of

the phrase.

It should escape no one that, if the Church and Magisterium speak of

human rights and the dignity of the human person this is not on the basis of

what is taken to be one opinion or view among many. It is because the

human person, any human person, is what he is that we owe one another

things in justice. In the Maritain or Finnis manner of seeing rights talk as the

recipient‟s view of the relation of justice, rights have to be grounded in

what Maritain at least would call the precepts of natural law. But surely not



all exponents of and defenders of rights would agree, and agreeing to

disagree does not seem to be much of a foundation for rights.

Rights as the reverse of obligations do not begin to cover the

pullulating claims of rights, the lengthening lists of non-negotiable demands,

the novel assertions put forward as somehow self-evident. To the degree

that the concept of human rights can be accommodated by the natural law

tradition in which St. Thomas moves, the phrase “human rights” will be

equivocal as between Thomists and most of their contemporaries.[21]





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Natural Law and Human Rights