The Idea of Natural Rights. Studies on Natural Rights, Natural Law, and Church Law 1150-1625 1111111011, 0602645540

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The Idea of Natural Rights. Studies on Natural Rights, Natural Law, and Church Law 1150-1625
 1111111011, 0602645540

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Emory University Studies in Law and Religion


General Editor John Witte, Jr.

Studies on Natural Rights, Natural Law, and Church Law

Number l Theology of Law and Authority in the English Reformation Joan Lockwood O'Donovan Oxford University


Number2 Political Order and the Plural Structure of Society James W. Skillen and Rockne M. McCarthy, editors Center for Public Justice

Brian Tierney

Number3 Faith and Order: The Reconciliation of Law and Religion Harold J. Berman Emory University Number4 Religious Liberty in Western Thought Noel B. Reynolds and W. Cole Durham, Jr., editors Brigham Young University

Numbers The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625 WILLIAM

Brian Tierney Cornell University









I CONTENTS () 1997 Emory University

A C KNOWLEDGMENTS . . . . . . . . . . . . . . . .. . . . . . . . . . . • . . . . . . . . ...

First published 1997 by Scholars Press for Emory University

C ITATIONS ..... ... . . . . . . . . . . . . .. . . . . . . . . . . ... . . . . . . . . . .. . .

ix xi

INTRODUCTION This editio n published 2001 by Wm. B. Eerdmans Publis hing Co.

Modem Problems and Historical Approaches . ............. .. .. .


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Library of Congre!l.'I Cataloging-in-Publication Data liemey, Brian. The idea o f natural rights: studies on natural rights, natu ral law,

and church law, 1150-1625 I by Brian Tierney. cm. - (Emo ry Univer.;ity studies in law and religion; no. 5) Includes bibliograph ical references. ISBN 0-8028-4854-'0 (paper: a lk. paper) 1. Natural law -


K445.T54 340'. 112 -

d c21

I. litle. 1997

II. Series. 97-7386 C IP

f lndq~ndmct (1776), " We hold these truths to be self~vident, that all nwn .uc• nt>.itc:-J l'qual, that they are endowed by their Creator with certain unalimable Rlghh, lh,,t .imung I~ al? Life. Liberty and the pursuit of Happiness-That to 5t'CUI'\' the~ right~. n1~ .ir'l' in.•li1utf.'d among Men. drriving tht-unm•lly 1lrl1•111lc..I w1•1f"n' rightH in llnillf'rll#/ I/um"" Rixhl.•, :\I 4S.





Cranston argued that rights of recipience are a recent innovation, unknown to the classical theorists of the seventeenth and eighteenth centuries;9 but James Tully found a "right to charity" in Locke and, earlier, in Aquinas. 10 Then Richard Tuck, at the opposite pole from Cranston, argued that a doctrine of passive rights existed in medieval ;unsprudence before the idea of active rights was articulated. 11 His argument does not, however, seem conclusive. The historical issue remains unresolved. The argument about active rights and passive rights grows out of a deeper disagreement concerning the proper relationship between individual and community in a well-ordered society. Modem libertarians fear the encroachment of state power on the core of individual autonomy that they see as essential for a fully human life. Communitarian critics of rights claims often discern in them an atomic individualism insensitive to any concept of the common good. Among historians, rights theories are often seen as an individualistic reaction against a medieval communal ethic. D'Entreves, for instance, discussing the thought of the seventeenth century, wrote, "The new value is that of the individual." 12 Yet Tully has argued that even such a classic rights theorist as Locke did not treat humans as isolated individuals but always as members of a unified community. 13 Some of the earlier reflections on this theme are discussed in the following chapters. Yet another area of current disagreement concerns the relationship between modem rights theories and the more ancient doctrines of natural law and "classical natural right." Some scholars see natural rights as essentially extrapolations from principles always inherent in the natural law tradition. This was the position of Jacques Maritain and more recently of John Finnis. Others, especially neo-Thomists like Villey in Europe, and the followers of Leo Strauss in America, vehemently deny any such association between the two areas of thought.14 Writers of this latter group see modem rights theories as radically destructive of the earlier tradition; they maintain that, after Ockham (or Hobbes or whoever is the chosen innovator), rights came to form the real basis of moral discourse and natural law was seen as merely derivative, just a sum of individual rights. Another approach, that we encounter in medieval sources and that might help to

explain some early modem texts, suggests that natural rights and natural law are not derived one from the other but that both derived as correlative doctrines from the same underlying view of human personality. In this way of thinking, it was assumed that natural law left to individuals a sphere of autonomy where the rights inherent in human nature could licitly be exercised. Since this will be a recurring theme in the following work, and since a derivation of natural rights from human nature may suggest some obvious difficulties to a modem political theorist, it will perhaps be helpful to mention some of these issues at the outset and to indicate briefly why they did not arise in the same way for medieval thinkers. Most obviously, many philosophers nowadays would deny that there is any such thing as a common or universal human nature, "an essence that precedes and antedates history. " 1 ~ I should explain therefore that, in referring to human nature here and in subsequent discussions, I am not attributing to the authors concerned any doctrine about some abstract "essence" supposed to inhere in all humans or any particular theory of universals. Medieval rights theories were not typically derived from such metaphysical considerations. Indeed, in the course of medieval thought, basically similar ideas about natural rights were propounded by phi· losophers-Thomists, Scotists, and Ockhamists-who held very different views on universals and essences. And in the postmedieval world doctrines of rights continued to be asserted by writers who had rejected the whole framework of scholastic thought. The medieval jurists, in whose works a doctrine of natural rights first grew into existence, did not specul,1tc about essences at all. It was enough for them-as for Locke in a later age-to perceive that humans displayed certain relevant characteristics, the most important ones in this context being rationality and free will. Another evident problem for historians is that, if natural rights are in~ lwrent in human beings as such, they must always have existed; and this st·ems contradicted by the lack of such rights in many societies throughout the course of history. But the idea of natural rights is a moral one. It does not refer to the rights that people can actually exercise in any given stKit'ly but to rights that ought to be recognized in all societies becau!*' llwy arc necessary for the fulfillment of some basic human needs and

9. M. Cranston, Human Righls Today {London, 1962), 38. Cranston's view was criticized by D. D. Raphad, nHuman Rights, Old and New," in Political Thmry and tlrt Rights of Man, ed. D. D. Raphael (Bloomington, 1967), 54-67 at 62. 10. J. Tully, A Discour~ on ProfXrlY (Cambridge, 1980), 132. 11. R. Tuck, Medieval Natural Rights Theorits (Cambridge, 1979), 13. 12. A. P. D ' Entreves, Natural Law (New York, 1951), 54. 13. Di5ctlu~. 49. 14. For a review of this question see V. Black, "On Connecting Natural Rights With Na tu· ral Law/ Persona y DeTecho 22 (1990): 183-209.


This may seem only to lead on to another difficulty. I am thinking now 111

11 umc's familiar argument that we cannot derive moral statements from

f.1dual ones. How, then, can we derive moral propositions about natural I'>. Rit-hard Rorty, "The Priority o f Democracy to Philosophy," in A. R. Malachowski, ro., lfr11.lmx fforty_Crilin1I Reiopon~ lo Phi/:iven above is based mainly on this article. It is often cited in Villey's subsequent works. His 1110!'>1 recent restatement of the argument is in LL droit tf lts droits, 55-:79. 11 . Ibid , 202. The persistence of this earlier way of thinking can be illustrated from ·• h•>4): lf•°l IK7






legal constructs, legal attributes inhering in external corporeal entities. And, for the classical jurists, ius was precisely such a res incorporalis. This is Villey's central point. To a modem jurist a right is a power; to a classical jurist a ius was a thing. Thus, to a lawyer, a fundus was not just a field, a plot of material land, but a field with all its legal attributes. These could include what we might call rights-a right of usufruct for instance-and the word ius was used to describe such things in classical law (ius utendi fruendi). But the Roman lawyers did not have in mind our modem concept of ius as a subjective right of an individual. For them ius was not a power over something; it was a thing itself, specifically an incorporeal thing.11 Villey maintains that, although there existed at Rome practical situations that we should discuss in terms of rights, the concept of an individual right was lacking in classical jurisprudence. He defends this interpretation by several lines of argument. For instance, in discussing urban servitudes, Gaius wrote of a ius altius tollendi. At first glance it seems clear enough that Caius was writing about a right in the modem sense, a " right of building higher." But Caius went on to mention a "ius .. . non extollendi." We cannot possibly translate this as "a right of not building higher." So Caius's concept of a ius is just not congruent with our concept of a right. 13 It is the same with Ulpian's famous definition of the function of justice-to render to each his right (suum ius cuique tribuere). Here again we seem at first sight to be dealing with the modem idea of inherent individual rights. But Villey points out that ius here has a different meaning. It refers to the just share, the just due, of some one within an established structure of social relationships, varying with each person's status and role. In this sense the word ius could imply a disadvantage to an individual. Villey observes that the ius of parricide was to be sewn up in a sack of vipers and thrown into the Tiber.14 Again the meaning of ius is not congruent with our idea of a right. The Romans did have a concept of mastery, power over persons or things, expressed by the word dominium. But, Villey insists, this dominium was not defined as a right. A dominus, for instance, was not said to have a right of usufruct in his own property. Ulpian wrote, dominus ... utendi fruendi jus separatum non habet. Caius also distinguished between the two concepts in the phrase, sive dominus sive is qui ius habet.15 The point is im-

portant for Villey. An owner certainly had the power to use and enjoy his own property. But this power was not a ius. Once again, for the classical jurist, a ius was not a power but an immaterial thing. Hence it was not a right in our sense. In other works Villey maintained that dominium itself was not a construct of law for the classical jurists, but a pre-legal reality, something that Jaw limited. 16 These arguments are of fundamental importance for Villey's later work on the origin of rights theories, so they need a little further consideration. There are evident criticisms to be made. It may well be that the Romans had a highly developed concept of individual rights but used some word other than ius to express it. 17 It is also possible that Villey was too narrowly selective in the texts he chose to illustrate the meaning of ius itself. Cewirth, for instance, pointed out that even modem authors who want to deny the existence of rights in Roman law find it necessary to use the term " a right" (or "un droit") in the modem sense in explicating the n•levant texts.18 Again, the separation between ius and dominium is crucial for Villey's argument. But in classical literary Latin one could certainly rder to ius and dominium as inhering in the same subject. (Livy mentioned . 1 subordinate king who acknowledged that ius and dominium over his 1.mds remained with Rome.'9 ) In legal Latin too, from the fourth century onward, the two concepts were commonly confused in phrases like iure dominii possidere. Ernst Levy gave many examples and observed that " the !.1rmer strict contrast of dominium and ius in re aliena was done for. It did 11111 survive." 20 One might further argue that, even in Gaius himself, the concepts of /''''"~las and dominium and ius seem to be all interwoven in a passage like

11, E.g., LA formation, 235, " La puissance absolue qu' exerce le maitre romain sur sa • 1........ ,-,. n'~t point le droit, c'est le silence, ce sont les lacunes du droit."

12. Nl'idff du droit subjectif,N 210, 219-220. Villey persistently indicates that for him the modem idea of a right implies a power. He does not concern himself much with the more

I'/ !'hi~ wa$ suggested by G. Pugliese, "'Res corporates', 'res incorporates' e ii problem11 ·11·11linllo ~'AA«'livo," Sludi in onorr di Vincmzo Arangio-Ruiz 3 (Naples, 1954): 223-60. IH Rm~m and Morality (Chicago, 1978), 372 Gewirth mentioned Jolowicz, Buckland and

elaborate classillcations of rights, like that of Hohfeld, commonly encountered in the AngloAmerican literature. 13. ul 'idtt du droit subjeclif, w 217. 14. usuum jus cuique tribuere," 364. IS. ul.',N 21Q. " l.n nrlgi~... 17.l. vm..y ....111mrtl to 111..... 111•1• ... K111111m law ( l\' l'r 111111ovrr11g•ln tn 1"1~l',•'Sted in part by some earlier glossator; but, precisely because he w .1·; not technically trained as a jurist, Ockham could, in good faith, carry •,,.,., thc• meaning that ius was acquiring in vulgar discourse into his l111 111.1I definitions. But above all, in Villey's view, Ockham's definitions ,..,.,,. dc•rived from his nominalist philosophy, and it was this philosophy 11t.11 w.1s most important for future rights theories.62 For Ockham only the

53. Ibid., 98. 54. Ibid ., 100-102. 55. Ibid., 104, . . . le pouvoir est au rontraire ce que le droit limite . . ." 56. La formation, 2'2:7, la notion d e droit subjectif est logiquement incompatible avec le droit naturel dassique." Similarly, " La genl!se," 103, " ... cette philosophic dite du droit nature! classique . . . ait ete necessairement exclusive du droit subjectif." On "droit" and "pouvoir," ibid ., 104. 57. "La genese," 110. At this point Villey dism isses the labors or lht> ~t>nt>ration~ of mrd ieval people who first built a Christian civili7.ation in W!>lc•m f.urop•· "" " le• J~plnit•m..nt d~rd, ii nc faut pas moins que le concours d ' une philosophie .. . jt' pen!W q1w • • • • • ••· t 1 ~1

;,,,11..11me .t' le toumant deci!>if."

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nffn•nl minalismus?" Franzislcanischt Studien 32 (1950): 31-49 at 49: "Ockham s teht hier in cinem 1111.1110i>!llichen Zusammenhang mit Aristoteles, Thomas und DunsSrotus.N 11'1. I A formation, 224. Some of the criticisms directed against de Lagarde's work (above• " r;) wnuld apply also to Villey's interpretation. See e.g. J. B. Morrall, #Some Not~ on ·' l.1s Natum't'ht bei Wilhelm Ockham," f'ranziskanischt Sluditn 35 (1953): 39-8.'>. 70 l '. Zuck:•-s to individuals implied by general laws, and he added that this could 12 He saw a connection only in 111 11 ilions of natural law could also readily be seen as implying rights. I•• s.1y that "Thou shalt not steal" is a command of natural law is to imply iii.ti others have a right to acquire property, a point that medieval jurists • l1·,1rly grasped.74 In fact one finds natural rights regarded as correlative

71. }. B. Morrall, "Some Notes,H369; P. Boehner, "Ockham's Political Ideas" in Col/tdtd Arlie/es on Ockham, ed. E. M . Buytaert (St. Bonaventure, N.Y., 1958), 442-468 at 446. A bibliography of the "revisionist" work on Ockham and a sympathetic discussion of it is provided by H. Junghans, Odcham im Uchtt dtr nt11rtn Forschung (Berlin, 1968). See also J. Miethke, Ockluzms Wtg zur SozilllpliilosoplUt (Berlin, 1969) and H. A. Oberman, Tht Harwsl of Lalt Medieval Thtology: Gabritl BitJ and Latt Mtdinlol NomilUllism (Cambridge, Mass., 1963). On Ockham as a "constructive" political thinker see A. S. McGrade, Tht Polilical Thoughl of William of Ockham: PtrSCmQ/ 11nd Institutional Principl~ (Cambridge, 1974). For changing views on the cultural signi6cance of nominalism see William J. Courtenay, "Nominalism and I .ate Medieval Religion" in Tht Pursuil of Ho/in~. eds. C. Trinkhaus and Heiko A . Oberman (Leiden, 1974), 26- 59. An overview of contemporary views on Ockham is presented in the papers of the Ockham Centennial Congress held at St. Bonaventure's University, and put>lished in Franciscan Sludits 44-% (1984-86).

" I .1 genese," 99. I.I' 1froil rl /es droils, 123. "En outre, ii n'est pas que des lois prkeptivts . . . ou inltrdic,.,.... . ma is aussi des lois pmnissi~ . .. Ainsi nail le droit subjectif. .. . ·.1 for some examples o r this in canonistic thought see R. Weigand, Dit Nalurrtchlslthrr ·'· • I ...~ i ckham's work. In such ~ study we should also need to discuss not only the writings 111 the Franascans themselves but also those of their adversaries among t lw secular theologians-such writers as Henry of Ghent and Godfrey of fontaines.35 Here again there is an extensive terrain that needs to be exf'lored before we can hope to make an adequate map of medieval rights llwories. Besides denouncing the Franciscan doctrine of poverty, the secul.1r masters also attacked the papal privileges that enabled the friars to f'lt',1ch throughout the church. Such privileges, they maintained, under111111ed the traditional status of bishops and priests in their dioceses and 1•.11 ishes. To a modem mind it is clear that the issue could have been stated 1 11 tnms of the rights of subjects (bishops and priests) against their ruler I rlw pope). But could the mind of a medieval theologian (before Ockham) li.1vc· conceived of the issue in those terms? Godfrey of Fontaines, writing 1 11 th(• 1280s, in fact did so. The question he posed was: "Whether a supe11111 prelate can take away from his subjects what belongs to them by • " Arguing for the superior, he pointed out that popes often did take .uv.1 ~ pow.ers of their subordinates-e.g., a chapter 's power of electing or 11 ... n~ht (ms) that an electee had acquired. On the other side he quoted a tt·I lhid .. :l29. Bonaventure wrote he re that the friars were entitled to receive alms, not 0 •11 hut ;,,,,. poli. (Odcham would later use the same distinction.) " . .. iure poli earn ex· •1·.• ' " 1'" '""'1ent per modum humilitatis .. . ut ipsi humilientur recipiendo." On " " ' "'"''"" "'' ilnd his Franciscan contemporaries see especially Paolo Grossi, HUsus facti. La .... ,...,.,. •h pmprie ta ntc"lla inaugurazio nC' dell' eta nuova," Quadrmi Fio~nlini I'" ta storin rlrl I'•''' "'"' !1'"''.dwn urc~rrno 1 (19n): 287-355. G rossi discussed here the Franciscan empha!'lis "" 11 ... u111iv1d11al will as a w urce of subjective rights. "'' I >11 thi" lit,•rnh1w S4't' ~pxt:11istic processes," 14 that "all linguistic interpretation involves interpret.1h1>n by an audience." 15 Sometimes the currently favored hermeneutical approaches to intelli·· r11al history may seem merely portentous ways of stating platitudes that 1.lcl fashioned historians used to take for granted. After all, we have un,1,·1-;tood for a long time, without benefit of advanced literary theory, that 11..- words of Magna Carta did not mean the same thing to a seventeenth' rntury parliamentarian as to the barons of 1215. And to tell a historian of 1d1·,1s tha t what he has been reading and writing all the time is really lant-: "·'>~t> may seem merely like telling M. Jourdain that what he has been '•1'1·.1king every day is really prose. But not all the points raised by recent t11klll~ ii 11 9ervi; !K'lon It'll lieux, 11 " u' v1·1Ui' •I•·~ idtt·~ d ifftswntt>!'I.. .. " The> pa!'l."-1&t' i~ quott'd in S. Ullm11n, Srmttnlin1 (Nt>w H

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emphasiz.ed the need "to pose as an explicit problem the way in which texts are related to contexts." 16 Our texts are "canonical" in a stricter sense than LaCapra intended and our purpose is precisely to understand how canonistic texts inherited from classical and early Christian sources were reinterpreted in the context of a new age. There was plenty of room for reinterpretation. The simple-looking little phrase, ius naturale, is a semantic minefield. Erik Wolf once observed that the word "natural" has seventeen meanings and the word ius fifteen; so, he concluded, there could be two hundred and fifty-five possible meanings for ius naturale. But this was too modest a count. Arthur Lovejoy more enterprisingly found sixty-six meanings for "natural," and the canonist Johannus Monachus gave over twenty definitions of ius.17 The number of possible combinations becomes mind-boggling. Fortunately we shall not need to consider all of them. We shall be concerned mainly with ius as meaning either objective law or subjective right, and with "natural" as meaning either a primeval state of affairs or an intrinsic permanent characteristic of any being, as when we speak of "the nature of man." It is the latter meaning that is more important in investigating the origins of natural rights theories.

l'" wers, others more the claims. Plamenatz, in an early formulation, de• I.ired that, "A right is a power which a creature ought to possess.. .. "19 11 1..1Feinberg defined a right rather as a "valid claim" justified by "some set 1 • 1 governing rules or moral principles." He distinguished sharply between l.wors, "motivated by love or piety or mercy," and rights that could be "de111.mded, claimed, insisted upon." 20 For him a real right was a claim that • ••uld actually be asserted against society as a whole or against some spe' die person.21 A co~mon theme, in modem discourse on rights is the relationship "··•ween nghts and free choice. Feinberg points out that the holder of a ••r,ht can "choose whether or not to exercise it."22 H .L.A. Hart also empha.. ,,..s freedom of action. The right holder has autonomy or "sovereignty" 111 the relevant sphere. In the case of a promise, for instance, "If he chooses '' • n·lease the promisor no one else can complain."23 According to this un' 11·1standing of the term, a right defines a sphere of licit action within w li1ch a person is free to exercise a power or make a claim, free to act as he • liooses. Robert Louden, inveighing against an alleged modem "infatu.1t 111n" with rights, explains that " rights are permissions rather than re' 111in•ments. Rights tell us what the right bearer is at liberty to do, not what 1... 11111st or must not do.. . ."1 4 In the language of Habermas, rights defme ·' 1wutral sphere of personal choice." Many modem rights theorists, including Feinberg and Hart, have 111.uh· the point that to be the beneficiary of a duty is not necessarily the ...111u· thing as having a right, even though this is often the case. Feinberg


Let us begin with some examples of the language used by modem rights theorists. (I do not want to be anachronistic, but if we are to explore origins we need to know first what we are seeking the origins of.) Seventy years ago, W. N. Hohfeld gave an influential taxonomy of rights as claims, liberties, powers, or immunities.18 Modem jurists and philosophers who "take rights seriously' ' continue to emphasize such words as "freedom," "claims," "power," "choice." When specifically natural rights are discussed the patterns of language include words like "moral," "licit," "rational." Natural rights are also often related to the basic needs of humans as moral agents, as in the work of Alan Gewirth. Gewirth distinguishes between two classes of rights in the phrase, "rightful claims or powers"; other authors use the terms "passive rights" and "active rights" to make the same distinction. Some modem rights theories emphasize more the 16. D. LaCapra, "Intellectual History and Defining the Present as 'Postmodern'," in I. Hassan and S. Hassan, eds., lnnuoation/Rmm:Nltion. Nn» Pmpectivrs on lht Hum1mitin (Madi.son, 1983), 47-63 at 54. 17. E. Wolf, Das Problem dtr N11tu~htsldtrr, 3rd ed. (Karlsruhe, 1964). A. 0 . Lovejoy 11nd G. Boas, A Documnit11ry History of Primitivism 11nd Rel11t~ /dMS (Baltimore, 1935), 1:448, JohanrteS Monachus, GIOSSll Aumr (Paris, 1535) 11d ~xi. 1.6.16, fol. xcir. 1be text of Johllnllft Monachus is discUS9ed in the preceding chapter. 18. W. N. Hohfeld, Fundamt'11tal l~J(ol Crmuptions (N to whom the claim can be meaningfully addressed, " Duties, Rights, and ' '""" ' ·" 142 Fd nbcrg concluded that such claims, arising from basic human needs, can and . 1.... ,1. 1

•:•w ri~ lo rights but that lhey can be called actual rights only through an, -rltr> • '"'""""k ~ument:

Natural law (ius) is the law common to all peoples, in that it is everywhere held by instinct of nature, not by any enactment: as, for instance, the union of man and woman, the generation and rearing of children, the common possession of all things and the one liberty of all, the acquisition o f those things which are taken from air and land and sea; also the return of a thing deposited or money loaned, the repulsion of force by force.59


The canonists could not avoid detailed scrutiny of the term ius naturale because Gratian chose to base his whole structure of jurisprudence on an initial distinction between natural law and human usages, set out in the first words of the Decretum: The human race is ruled by two (means) namely by natural law and by usages. Natural law {ius) is what is contained in the Law and the Gospel by which each is commanded to do to another what he wants done to himself and forbidden to do to another what he does not want done to himself. 57

55. Glo:ss ad Dist. 56 c.7; Gloss ad X.4.13.11. 56. Jn emphasizing contexts, I am not suggesting any kind of historical determinism. Of course different persons respond differently to the same situation. Among the twelfthcentury canonists, for instance, Huguccio and Alanus held sharply opposed views on the rights of popes and emperors. But to understand either Huguccio or Alanus we have lo know something about the context of papal-imperial relations at the end of the twelfth ct'rltury and about the context of Decretist thought within which ~th authors w~rk~. . 57. Dist. t, dictum arrtt c.1. HHumanum genus duobus regitur, naturale v1dehcet 1ure et moribus. !us naturale est, quod in lege et Evangelio continetur: quo quisque iubetur alii facere quod sibi vult fieri et prohibetur alii inferre quod sibi noli fieret.Hlbere is now an English translation of the first twenty Distinction~ of the Decrtlum toget~r with the glos" of Johannes Teutonicus. See Gratian. Tht Trul1se of Laws With thr Ordinary C.111!isl. t c.7, ..lus naturale est commune omni um nationum eo quod ubique instinctu '"'""'"' mm «>rl.,titulione aliqua habtur, ut viri ('I feminae roniunctio. libemrum 11ucces.\i11 ••I •·•hu .ttin, .-ommuni8 umnium ~~sio, ('t omnium una libcrtas, acquisilio rorum n•t . .." tol• ( ;(""""" /J1s/. 1 r . I. " . . . f;u..~t. hi t~t iun•d tibi non uis fieri ... "(cf. Weigand, 215-216). 75. u5ec1 in hac acceptione improprie dicitur ius natural, MS Am , jurc rnl'O utor, id esl licet, Conradus ... ponit late diffinitionem illiua nomlnm ' " ". . I licit t cum utitur re alteriull proptt>r urgentt'm ~itatem ... 'I""' .1111 r n"re clominu.:O permi:i..Xt that. '" ' c;, ..1ius, "a right is not only a claim in the interest of self-preservation, but the mc>ntal l'" w"'' (rii-;ht rc•ason) to make such a claim rationally, which means the power to judgt> oiw'" 1o w 11 1 l.1im vis·A-vis the claims of otht>rs." One find:'! thr same attitude in the nmonlst~ who• " ' '" "' r1c•M tht• l>t•ginning of !ht• mcorr!I, 1011- 115

By the law of nature (iure naturae) each one has a certain right (ius) in the common exterio r goods of this world, which right cannot be licitly renounced.105

>ckham reformulated the doctrine of the rights of the poor in extreme need with explicit reference to the text of pseudo-Ambrose included in the I Jecretum, and closely paraphrased Huguccio in discussing it:


In another sense temporal things belong to others because they are owed by necessity . . . that is they are owed by right reason. And in this way the superfluities of the rich belong to the poor. . . . So are to be understood the words of Ambrose given at Dist. 47.106

:erson wrote of a "right of nourishing the body" and repeated that all lhings were common in case of necessity. 107 Vitoria restated the canonists' h·aching but, again, mistakenly suggested that Aquinas taught a doctrine of subjective rights. "Thomas says that all things are common in extreme rn-cessity. So if they are common I have a right to them." 108 Other Spanish scholastics of the school of Salamanca continued the 11wdieval discussions about the rights of the needy and the duties of the wl'althy with endless refinements of argument.109 The right of a poor man ru the surplus property of the rich still found a place in Locke's political


thl'ory: God , the Lord and Father of all, has given no one of his children such a Property in his peculiar portion of the things of this world, but that 104. Summa theol. 2.2ae.66.7. I05. J. Hoff mans, ed., Lts Q11odlibds onu-quatoru dt Godefroid dt Fontaines, Lts Philosophes 11,·('\•'S 4 (Lou vain, 1924): 105, " lmmo etiam propter hoc quod unusquisque tenetur iure natu· •.... vitam suam s ustent.ire .. . ideo etiam iure naturae quilibet habet dominium et quoddam .. ,., in bonis communibus exterioribus huius mundi, cui etiam iuri renuntiare non potest

1116. Opus nonnginta dirrum, ed. H. S. Offler, Guil/elmi de Ocklulm optra politiaz, 3 vols. 1/\1 .m,·h~ter, 1956- 74), 2:576, " Aliter dicuntur temporalia esse a liquorum ex debiti necessi·

,_,,,. . quia scilicet eis ex ratione recta debentur. Et isto modo superflua divitum sunt l'·"'J't·rum .... Et sic intelligenda sunt verba Ambrosii, quae ponuntur di xlvii Sicul hii . . . ." 1., ..11,..r c-ontexts Ockham referred explicitly to the right of the person in need, e.g. Op ' { '


When the canonists wrote about reason and free will and synderesis they were not offering any profoundly original reflections on the grounds of human morality. They were simply deploying the familiar psychological language of their own day. The novelty in their works was that they used the language for a juristic purpose, to explain the varied meanings of ius naturale that they encountered in the texts of their great Jaw book, Gratian's Decretum. Many canonists included in their lists of meanings a subjective one that explained ius naturale as a faculty or power inherent in human nature. Then, from this primary meaning, various other meanings, including natural law and natural rights, could be derived by a sort of metonymic association. It seems important that, from the beginning, the subjective idea of natural right was not derived specifically from Christian revelation or from some all-embracing natural-law theory of cosmic harmony but from an understanding of human nature itself as rational, self-aware, and morally responsible. This understanding endured as the basis of many later natural rights theories, both medieval and modem. The language of the canonists persisted in later political theory, though sometimes the original source of the language was forgotten. It was transmitted mainly in two ways. One way was through the encyclopedic works of the late medieval lawyers. They were well known to those of the sixteenth-century Spanish scholastics who were jurists as well as theologians; and these writers in tum often influenced seventeenth· century rights theories. When Suarez, for instance, chose to formulate his doctrine of rights in terms of ius in re and ius ad rem he was well aware that he was using a long-established technical vocabulary. The other main channel of transmission was through the work of Ockham, for Ockham relied more on earlier canonistic teachings than on his own innovative nominalist philosophy in formulating his theories on property and poverty and natural rights. He in tum influenced a whole school of late me· dieval theologians, including Gerson. None of the canonists themselves, we have noted, wrote an extended, coherent treatise on natural rights.

l IO. P. Laslett, ed., John Lock . Two Trtol ises of Gowrnmmt, 2nd eJ. (Camhridg1•, 1970), 1.42, 188. But Locke a lso wro te here that the claim o f lh1• poor wall h"""'. J nn r Stinl'ndo t•t , ..·d dc•t1•lo , lilnlumdcm Pl plus hahet isll' In 11ht•1111d o • 11111 pnh•ril, c•t vitam cu~todil'lldo. c•I ••II""' p l11.~ uni• h .11...1. q uia iuJrll ncm tnnln nrn'tlllilitl•• • " '"l" 'llitur t•um llt•lin••n• .t11I '""·id 11r1 •"••ildh' p n 1ph•r i11lll11rn nwlum rnorll.• • ''"'l"'llil11r •l.1mn11t u" •11111cl lllM pruvhl1111I. ' "' "'"""' rt I"'• l••1·U11114•m !C\111111 l11 1·urpon• 11mlt l.11, •1111,1. •I i11hcN· 11011 pruvhlt•tl'I •I 1 ~ •••1• 1 h1Yl't1h•• l•M11111 c•I h•111p11.., 111 Mi fmlc• 1·nl'I • lnr






Having reached his conclusion, Henry, in typical scholastic fashion, gave a detailed response to the contrary argument that he had placed at the beginning of the Quaesti~e body of the criminal belonged to the judge; therefore he could not licitly take it away. Henry replied that the criminal could take away anything necessary to sustain life, just as he could take another's bread in case of necessity, provided that he did not violate the right of the judge. But how could he escape without doing this? To carry the argument further, the author returned here to his initial distinction between property and use, the different modes in which the same thing could belong to different persons. One could have a "power" or "right" over something in two ways, Henry explained, either as regards property in the "substance" of the thing or as regards use, the exercising of some act concerning it. The judge did not have the first power or right of property over the body of the condemned man any more than over his soul; he had only the second right of using the criminal's body in the ways already described (capturing, imprisoning and killing him).45 Only the criminal himself had a property right in his own body or, as Henry put it, "only the soul under God has property in the substance of the body."t6 It is interesting that Henry used the word proprietas. Often in medieval and early modern discourse one reads that a person had dominium over himself. But there was an ambiguity in the term. Dominium could refer to property, but it could also mean control or mastery of one's behavior as in our phrase "self mastery." Aquinas used the term in this sense when he wrote of mens' dominion of their acts, dominium suorum achtum.47 Henry avoided the common term dominium here and specifically referred to proprietas, a property right. Continuing his argument, he asserted that one was bound (tenetur) to use this right in order to preserve one's lifebut, again, without injuring the judge. The argument ended with a final twist. If the judge kept the criminal in firm custody, chained and locked in gaol, then the criminal would indeed injure the judge's right by trying to break loose. But if the judge omitted to exercise his right of confining the

criminal closely then the latter could and should escape. The judge had no right "in the substance of the body" of the criminal; the right that he did have he lost by failing to exercise it. The escape did not injure the right of another: rather it was imputed to the negligence of the judge.48 It is not surprising that Henry of Ghent should have chosen to discuss the moral rights and duties of a condemned criminal. Aquinas had already considered the same problem, and it became a fairly common topic of scholastic debate. But Aquinas, in typical fashion, discussed the question entirely in terms of objective moral law without exploring the subjective rights of the judge and the criminal.49 Henry of Ghent based his whole argument on an elucidation of the individual rights of each party. Starting out from some canonistic definitions and doctrines, he created a kind of rights language that was neither Thomist nor Ockhamist, nor indeed, as the argument progressed, like that of any preceding canonist, but that was oddly similar to the language of early modem rights theorists. Henry's argument was not identical with that of any of the seventeenth-century writers we considered (just as their discussions were not identical with one another); but it contains many of the same elements of discourse that characterized the later works. In Henry's Quaestio we find an emphasis on individual rights, specifically the natural rights to preserve life and to acquire the necessities of life; self-preservation treated as both a right and a duty; the idea that a person has a kind of property right in himself; the equating of a right with a licit power; and an elaborate inquiry, more explicit and detailed than those of the seventeenth-century authors themselves, into the correlative rights of judge and criminal. Henry's Quaestio was not forgotten. Just after 1500 Jacques Almain took up the question of the condemned criminal in his commentary on Ockham's Octo quaestiones. Almain belonged to the nominalist school of thought that was dominant at Paris around 1500 and, as Francis Oakley has pointed out, he was a figure of major importance in the transmission of llli!t'S on the issues that came to dominate his later work. I noted a d Vl'rbn I para IIt'I bctw('('O Ockham 's Brnril · oquium and the ROMrium In "Ockham, thl' Conciliar looiry, 1111xisl1•0Cl' of Tight" in 11nlmo1I• 1m1l l11fnnt1t And ln!'lllnt' pl.'n;on..~); but Mar.dllua 1lkl not 111.•lll' 11111«h of it tlf' ri•frrrf'll to lhr 11111111111•111 ll1 l'""''h111 ''" "',1lmu!ll M'lf-c'Vl1ftonl." Still, hl11 11U"nti1111 of"·'"'' l'11rN,. I ti1 thl• •rr K1111t Nllrr, uzur Fr,1gr d~ ~11b~·kti11t·~ Rrd1tr:< In ol1•1 111llh•l,1lt.•rlklw11 R•.,·ht•wl•...11•• h ..ft."' In I 11,.h•r M0'1lln1~ "' 111 , ''''"·· fr~t!n- iun- poli, dist. 1 in princ." 78. ONO, ~73, " . . . ius fori voc11t11r iu,.turn, ·~und "" pactionc ~u orJinationt' humimn v"I Jivina t>xplidti\ cc•n.!ttitnitur; umlr "' 111~ furl iu~ ,·.,nslJt•tuJinis, lu11.e .!·fuld dl'rinllion or ju~tkt" Willl "'1"'"'"'' 411 (>NI'· !°t(Tf>, 577. K4. ONI >. ~17. " ... "''" •du• 111111• """ ...1 l11lu• h111 •rtl ht~hu•; l'l t11m1•n Kim• iun•, 'I"" vAlrl 1111i• in imlldo lill1tM•'. 11e•1l 11ot1 •h1., '"' 111 111llt•ot> ••



~ I


Ockham continued, this was indeed the situation of one who used by virtue of a license. Such a person had no legal right but he used justly because he used in a manner consonant with right reason; the right he exercised was a ius poli not a ius Jori, a natural right not a positive Ockham's argument might be restated like this. Any act in accordance with right reason is just; a natural right is a power consonant with right reason; so the exercise of a natural right is a just act even in the absence of a positive right. ln this way Ockham succeeded in grafting his own doctrine of natural rights on to Aquinas's theory of justice.


We need finally to review the different approaches to the language of rights in the authors we have considered. To sum up then: Hervaeus Natalis, a Th.omist, emphasized especially the idea of ius as a licit power; it was he, if anyone, who "resolutely twisted the idea of right to the meaning of power." Ockham was content to take over this language from his adversaries. Marsilius of Padua, an Aristotelian, distinguished carefully between the subjective and objective meanings of ius. Ockham showed no interest in this distinction and never overtly called attention to it; he used the word in both senses but did not formally distinguish between them. Ockham's own contribution to natural rights theory consisted, not in some new nominalist and voluntarist definition of ius, but in a new emphasis on nature and reason as sources of subjective rights, and in a carefully s ustained distinction between natural rights and positive rights.



he social context in which the Franciscans lived and worked wa.s shaped by the economic strivings of an age that had already experienced a "commercial revolution" (in the phrase of Robert Lopez). In the more urbanized parts of Europe, a feudal regime of mutual obligations was giving way to a system of more sharply defined property righ~. And the Franciscans were men of the cities. They were deeply engaged with the mercantile culture whose values they had renounced; as confessors and moral theologians the friars had to consider all the problems of economic morality associated with the acquisition an~ right use of wealth .. When their own position was challenged the Francisc~s were well quah~ed to undertake searching inquiries into the foundations of property rights. And, since property became a paradigmatic right in later Western thought, their arguments merit some detailed consideration. PROBLEMS OF FIRST A CQUISITION

85. ON O, 577. "Si autem accipiatur ' iulltl'' lf'tliu mo.In, ~k t primaeva institutio rerum. . .. n; Summa Monactnsi5, iut' naturall' consl~tit in preceptis et protubitionibus consiliis el permlssionibu~. Verum l'111 q11od dl'n~nhir it1rt' naturali in . . . ronsilils. . .." (Wt'lg1m•I. 26#1, l!>.' i, IM) H

w ii II !




Huguccio preferred a different solution. He held that community of property really was a permanently valid precept of natural law but only in the special sense that goods owned by individuals had to be shared with others in time of need. On this view property was individual as regards ownership but common as regards use (at least in case of necessity).23 Here again the argument for property did not rely on an appeal to a primordial state of affairs; instead Huguccio based his doctrine on an understanding of ius naturale as a force of reason inherent in humans, and on the judgement of reason concerning use of temporal goods.24 For both Rufinus and Huguccio, primitive communism was not an ideal to be restored but only the starting point of a historical process through which private property had emerged. The distinction of Rufinus between the commands and demonstrations of natural law showed how property could be licit, but it did not explain how it had come to exist in the first place. As l noted in an earlier discussion of his views, Rufinus himself provided an explanation that anticipated a theme of some later natural rights theories. He envisaged the emergence of an ordered, lawful society from an anarchic state of nature through the making of human compacts. After the Fall of Adam, Rufi nus wrote, humans lived for a time almost like brute beasts; but the sparks of wisdom and justice that still persisted in them led them to deliberate together and to enter into compacts with one another. Thus they established the first body of law, including law regulating property rights. The argument envisaged a division of property by human agreement but in a pre-political society. Much of the canonists' further discussion of this question centered around two texts of the Decretum that would also be frequently cited in the later Franciscan dispute. The first (Quo iure) was a genuine passage from Augustine, the second (Dilectissimis) a text of pseudo-Isidore attributed to the first Pope Clement. Gratian quoted Quo iure to support his own view that private property was introduced by human custom or statute. In the words of Augustine: We find divine law in scripture, human law in the ordinances of kings. By which does each possess what he possesses? Is it not by human law? .. . God made rich and poor from one clay and the one earth pro23. MS Admont 7, fol. 2 va, Prwmium, "Vel potius cum dicitur iure naturali omnia ~uni communia non excluditur pmprium, nee dicitur commune contra proprium, ~l i~ t·~t Snsus, iure naturali id ('SI iudicio rRlinni~ 11pprobante, omnia sunt co mmunia, id t'lll ll'mpore nccessitatis indigl'ntibu4 rnmmunknml11 ..... (Wl'igand, 329). 24. MS /\dmont 7, fol. J vn. '" '/IM I "7 M v ( ·ommunis omr1i11m pos5'ssio, " ... id t'l\t com· munimlnl.• ul sil i;cnsus ' per' id est 'p ropti5/. I c.7, "Set hoc- ,fidm11J1 t'!l!Ot' .t1• iure ciuilc per approb11tiom•m, i11rb1 Vt'nl rmlurali:i J'l'f in:itituliorwm" (Wrlj(ftl\41, 11\4) 40. tly reasc to ptis!'ll'8s it." !il . R. S.- ,.. ., .,,.,./,1.~lln1 111•lrsl11lr (Weimar, 1929), 11- J:\, 70 7'i, IO:l · 111. 'i2. E lll1•lrn~tri 11, (StullKMI. l'lf,111. 'Ito •17

'°'' , /11li111111r'• Uull/1111 '""' /'11rl•

1lll Ml m1t11rt1ll." 73. Ibid .• " Die-it c>rgo, qu01I d1•min.1tw1 ftU'rit; ex quo sequitur quod dominium h~ huil ... ... 74. ll>iol., "'Ex 1 1uihu~ 1111mlh11R 11li1111i!I l't in !ll.1l11 inntll' wruh'. In .inolhxt of Ecclcsiasticus on which John relied, the fact that Eve was first mt•ntiorn•, 411'1, ~ . •. 1•1 l1IC'u " """"'""lull, ho1· ""' rty right at all. 89. John XXll's interpretation of Dileclissimis was di5CUSSE'd in d hhil


92. ONO, 657, " Ergo si pelliciae et res aliae fuerunt divisae inter eos quuad dominium. sequitur quod perizomata fuerunt divisa inter eos quoad dominium; et non ex speci,,li pr;w· cepto divino, sed vo luntate humana.· 93 OND. 432, "Praeter istud autem dominium fuit data ipsis et animantihus h•rr,11· uti appropriare aliqua ipsorum absque communila tis consensu." Ockham wa~ apparently quol ing here from Dist. I c.7 of the D«rtlum which referred to things !a ken ~by air, land, amt,...., .. .1nd from the O rdinary GIO!>..( hert• which cited the Roman law doctrine of res nulliu. by the sons of Noah and by Abraham and Lot. But this was all done by human will and human regulation.108 Also, Jacob and other patriarchs acquired great possessions by their own labor and industry, and so did many

It is licit to renounce property and the power of appropriating but no one

may renounce the natural right of using. 1~

To have called the power of appropriating also a natural right would merely have confused the argument. In Ockham's later work, when he moved to broader issues of political theory, he modified his stance by in102. OND, 435, " Et si quaeratur unde ergo habuerunt primi parentes talem potestatem appropriandi res temporales, quam non habuerunt ante peccatum, dicunt isti quod habuerunt illam potestatem ex natura corrupta. Quia ex dictamine rationis naturalis convincitur quod expedit posse peccantibus quod etiam habeant potestatem appropriandi sib i, nisi aliqui eorum eadem potestate sponte se privent, ita quod nullus debet in principio cogi talem potestatem dimittere." 103. ONO, 669. The gloss to Di1ectissimis suggested that property could have been introduced through "a custom of the law of nations contrary to natural equity." Ockham explained that such a custom would be contrary to the natural equity that existed in a state of innocence and to the natural equity that would have existed if men had always lived according to reason, but it was not contrary to the natural equity that actually exislr ~l' divi11i11114• vhll"nlur"; ft'l7 , •· mullnrum wrum dl~tlocta domlnllt t•I d lvl'n1b1 ff'mpnrlh1t'I fut•runl lntwcl11d11 I l1H· 1•11t..1 "l"'rlt• 111• cllvl~lnnt• h1( IR lntrr 11111111 flllorum NtH• cc.1t11m ... post pt>cc.1tum 1•t ante d ivisionem rerum; et in ilia tempore habul'runt pot~lntt•m lat et cooprratiun•• hum.m11 poh•sta!I instituendi rectores habenl... 1 lmml'lllAlr nun t1mt11m ll1h•llh11•.

vera iurisdiclio temporalis." Oclmam was here repeating a view classically formulat~ by Pope Innocent IV in his commentary on the Decrtfals (X.3 .34.8). Ockham, however, did not know this text of Innocent and attributed to the pope a view opposite to the one he actually held. It is a good example of Ockham's limited familiarity w ith the literature of canon law. He knew some texts very well and cited them o ften, but he was not acquainted with the whole range of commentaries on the Dtcretals as a professional jurist would have been. Ockham relied for his knowledge of Innocent IV on Eger cui lenia, a letter issued on behalf of the pope during his struggle with Frederick ll. This letter declared that "outside the church ... there is no power ordained b y God." Modem scholars have d oubted whe~ lnnoce.n t actu~lly w~e Egtr cui leniR. If he did, then he changed his mind when he recons1d~red the i.ssu~ d1s~ass1on· ately in the Dtcrtfa/s commentary. Ockham paraphrased Egercui ln11a in the Brrorloqmunr and quoted it directly in the Octo quaesliones, with several references to Innocent IV b y ~ame. 5tt H. S. Offler, ed., Octo quaestiones dt poltslate papar in Guilltlmi dt' Ot·klrnm ••1>rr11 pnl1l1ca, 3 v1>t~. (Manchester, 1956-74), l:l.2, 19; 1.10, 42; 1.13, 56; 2.13, 92; S.4, 157. 0n thi~ whol(•qlK':'llion,.l;('t' A. Melloni, " William of Ockham':i Critiqut> of lnnon•nl IV," fr11111·1:J......,.. le• heHI M'tl" Ir p lu• 1•\'ltl1•11I




if a man refrained from exacting a debt or from defending himself when attacked he was not repealing the natural law concerning payment of debts or self-defense. He was waiving the exercise of a right that he held in accordance with that law. From this point onward in Ockham's argument, the word ius was used indifferently to refer to a natural right or to natural law; and, just as in the ONO, Ockham did not think it necessary to alert his readers to the shifts in meaning. Often the word glides from one meaning to the other in the course of a single phrase as when Ockham wrote that " the Romans have the right (ius) of electing from d ivine law (iure) or natural law (iure)." Subsequently the word ius was repeatedly used to mean a right in phrases like ius eligendi (right of electing), cedere iuri suo (to cede one's right), transferre ius suum in alium (to transfer one's right to another), ius instituendi electores (right of instituting electors).37 We must remember that the whole point of Ockham's involved discussion was to prove that the Roman people had a right to elect their rulers that was associated with a certain kind of natural faw. In spite of Ockham's concern here with rights, de Lagarde went too far when he wrote that, for the Franciscan, natural law was "only a sum of natural rights," without any underlying permanent principle of rational equity.38 Ockham was really concerned with both natural law and natural rights. He wanted primarily to define a kind of natural law that could be associated with an alienable natural right; but he was careful to explain that each of the three modes of natural law that he described was rooted in "an instinct of nature, that is, of natural reason," 39 a phrase no doubt suggested by the Ordinary Gloss to Dist. 1 c.7 of the Decretum which gave as one d efinition of natural law, "an instinct of nature proceeding from reason." 40 Having established the principle of alienability by referring to a property right (the right to recover something loaned that could be waived), Ockham moved on to consider the issues that had really inspired the whole argument, the right of the Roman people to elect their bishop and the possibility of their renouncing this right. The right to elect, Ockham \ wrote, was related to the third kind of natural Jaw. For, supposing that a ruler was to be appointed, then it could be gathered by evident reason that those over whom he was to rule should have the right of electing 37. omer. HThree Modes," 216- 18. 38. N11i~snnct, 5 (1963): 118, " Pour Ockham le droit naturE-1 qu·it s'agit dt> sauvc•g.mlN t~I un droit s ubjectif individuel . . . l'essentic l du droil nature! - . . n 'est q' unc 50mmt• ; /)t inrr t i porrl.

pol., I, 456.


59. Arr princ·t~, 01' I: 2, 212, " 1'1_.1 pi!pa. si hahrn•I talt>m plM1ituJlrwm pgi11.... SI rnlm l'"I'" in huhmnodi haberet pot~tah'm conc:kndi k•Kt'tl obliKaloria11 1·hri!ltl11ni11 lnvlll!1, J>t-·t •111rm.-11111t•lw1't't1 rlKl•IM '1!< chokes o r right!'I a!l inteorl'!'l!l, intmc.lun'tl by ninelttnlh·Ct'nlury c:.-rn1t11n lttrt•I•, '" 1dmll1u It> tht' mod~m di~tlnction bf'twttn 11rtlvl' anti pa.~!liv•• riRhl" but nol •1111t.. llw .,.,..., 111r 111·•1 pnlr of alleornaliv~s refcr11 mun> tu lhl' j111lllfl rnlion of riKht", thr ..,, 011Al 1111 .,.., In lht!h • 11111r communt"m utilitatem. Et ideo non habet pontifex summu~ 11 Oiri:oto pol«':"tAll'm pro""""' nrhllrlo volun· tatis spoliandi alios llbJ among sinful humans; a series of voluntary acts then impl_e~entcd ~e~­ son's directive. On the highest level, the criterion f~~ determ1~10g t~c hcil· ness of a pope's command was "necessary reason al?ng with scnptun•. All medieval and early modem thinkers who considered these qtws· tions realized that both reason and will were necessary for_the ~ndud o f h uman a ffa 1·rs.n , but if we have to divide them into ratmnahsls· ;md I voluntarists according to their emphases, Ockham clearly belongs m 1 w rationalist camp. I I. M. Villt•y. I .11 {c•rmalum cir /11 1.,.,..,.,. j11111l1q11r m cHl,.ml'. 4th t'tl. (l'1ul1~hls? )II'/




. Duri~g the Romantic movement of the nineteenth century, many wn_ters re1ected. the "atomistic," rationalistic, natural rights theories of the Enhg~tenm~nt 1~ order to emphasize the values inherent in the group-life of vanous h1stoncal communities. Since then, scholars in several fieldshistorians, anthropologists, sociologists-have emphasized the contrast ~tween a "h?lis_ti~" or _or~anic approach to the understanding of societies and an md1v1duahstic approach. (For medievalists the vast work ~f Gi~rke, devo~ed .essentially to an elaborate investigation of this distinction, 1s o.f especial 1~portanc~.) 1 More recently, Louis Dumont, in setting the m~1eval e~pene~.ce ~gamst a broader anthropological background, has defined hohsm as an ideology that valorizes the social whole and negle~ts or su~rdinat~ t~e.individual," and individualism as "an ideology which valonzes the md1v1dual ... and neglects or subordinates the social 2 wholen' n-o-nt 111" ··11-;..,inn S.'.·1·n l11~1H' .u1 ;11.• '"'t11111lr (1 lrur•tr• 1 14/) It wu11l1I: l111v1• h1-.•11mun• 1"c11111l"h'lll Im· him In l111v1• w ri ttf'n lri 1P11l11111fu 111•11• I"'" ' u11l1I 111111 h1111.ln·.I• ol ~11.-lt """II"" ,.,.,,11,•rt•ol tl1101111h l ;11 r!i'n n '" w urlt.-.




"Each one of us will render an account of himself before God. " 14 There can be no more holistic image of society than the medieval vision of the church as a mystical body; and no more starkly individualistic view of human destiny than the medieval vision of the Last Judgment, when each soul would stand alone, naked and trembling, before the divine judge. Of course no society can be entirely holistic or entirely individualistic. It is usually a question of degree, of deciding which value is considered "paramount," as Dumont wrote. Normally, we expect to find one value subordinated to the other. The unusual feature of medieval Christian thought is that both values-the value of individual persons and the value of Christian community-were asserted with equal passion. Moreover this attitude pervaded medieval life on many levels of theory and practice. On the level of theological discourse, the whole developing doctrine of Purgatory and indulgences reflected both an intense concern for the welfare of individual souls and a sure conviction that the merits of the whole body of the Church could help to succor them. Zabarella moved directly from an account of the church as a mystical body to a defense of papal indulgences. Gerson, arguing in the other direction, pointed out that the prayer of an individual mystic aided the whole body of the church, "not just one or two but the whole mystical body. " 15 On a legal level we find in medieval corporation law a peculiar emphasis on the defense of individual rights within corporate groups. It is now well understood that earlier canonistic doctrines influenced the conciliarists' teachings on the corporate structure of the church; but we need also to consider the relevance of the corporation law that the canonists developed for later rights theories. In a typical medieval ecclesiastical corporation, say the bishop-and-chapter of a cathedral church, some rights (e.g., the right to alienate church property) belonged to the whole corporate entity, bishop and cathedral chapter acting together. But there were also two spheres of "right-subjectivity" in the corporation. The bishop had certain rights of his own and the chapter as a corporate entity had rights too. Then, beyond this, each individual member of the chapter had his own particular rights, typically a right to revenues from a prebend attached to his canonry, and sometimes rights associated with an office that he held in the cathedral church. These were individual rights in the sense that an individual could sue for them, but they were not private rights; they were rights held by individuals as members of a corporate community. The members of such a community could display a very strong sense

of corporate solidarity when confronting outsiders, but also an intense awareness of individual rights when particular claims within the group were in question. 16 A modem author has observed that, without a concern for individual persons, "families disintegrate, congregations do not congregate nor colleges continue collegiate." Medieval people seem to have known this intuitively. It is useless to write about "medieval corporatism" 11 without understanding the structure of a medieval corporation. Long ago, Frederic Maitland, in discussing the relationship between the theology of the mystical body and the medieval theory of corporations, wrote, "The corporation aggregate was almost resolved into a mere collection of corporations sole."18 Other classic works have explored the interplay between individualist and communal ethics in Christian social thought. 19 To understand fully the growth of rights theories in the late medieval period one has to bear in mind, not only the obvious facts of medieval life-the obsessive concern of many persons and groups to maintain their "rights and liberties"-but also the pervasive influence of Chri!ltian attitudes to individual and community at every level of thought and action.20


14. Romans, 12.5, 14.12. 15. J. LeCoff. La naissana du PurKaloirt (Pari,., IQlll); :t.ao11wlln, S11pt"r '/11i11q11,. /if.ris drCTttalium commmtnriQ (VmlCC', lt102), nil X5.l\. \ 7; ( :1•r.ion, I >r l!rn•l••.11111 11111sllnr, In t lrm•r•·s. :l: 291.

16. Jn adjudicating a dispute within the cathedral chapter of Troyes. Innocent Ill laid down that the chapter could not deprive a minority of its own members of their tradition,11 rights (and Ockham tried to base a general principle of political theory on this legal lf'Chni· cality). See above, 184. 17. The whole medieval " fiction theory" of corporations was based on a d enial of what Gierke called " the real personality of the group" and on an acknowledgme.n t that only individual persons had real existence. Gerson, a theologian, did not formally study the canon law of corporations . But he served as Dean of the collegiate church of Saint-Donatien and Chancellor of the University of Paris. A familiarity with the behavior of individual'> in ror· porate groups was part of everyday life for a medieval churchman. . 18. F. Pollock and F. W. Maitland, The History of English Law, 2 vols., 2nd ed. (CambndKe. \898). 1: 5'Jl. E. Kantorowicz, 'TM King's Two Bodies. A Study in Mtditval Political T11nilll)(!f (Princeton, 1957) has many examples of the term corpus mysticum used in a legal or po liticnl ~ense. On this~ also F. Oakley, "Natural Law, the Corpus Mysticum, and Consent in Con ciliar Thought." Speculum 56 (1981 ): 786-810. Gerson wrote of rights within a my~tkal body not o nly with reference to the church but also in discussing the French state. See h1..~ Vitvit " ''• Oeuvres, 7: 1156. Great cruelties arose in a "corps mistique se les partiez sont divi!IC7. l'I ~·· p!«·c•ln~tiqur 1lr 11l1ll11"''l'l11r 21 ( 111211): J41 ·-J r>7; F- I A"wi11, "l >rx1U1k Tt•nJrnd..,. in Mo- e .g., W. ik'ms in This World 6 (198.1): 98, "(T)he very idt'a of nahm1I right~ "inrnmpatibll'low 11




dusions he draws from them. They are mistranslated or misunderstood by being taken out of context. Tuck, for instance, presents Luis Molina as a sort of belated Gersonian who launched an "explicit attack" on the idea of passive rights. He quotes the following passage: lus ... divisimus in ius in re et in ius ad rem. Altero modo dicitur aliquis habere ius ad aliquid, non quod sit ei aliquid debitum, sed quod facultatem habeat ad aliquid. ...

Tuck translates this as, "We divide ius into ius in re and ius ad rem. When we say in this second way that someone has a ius to something we do not mean that anything is owed to him but that he has a facultas to it. ..." Thus he assumes that Molina was reinterpreting the passive ius ad rem, a claim right, as a sort of active right.36 But, when Molina wrote Alfero modo, his meaning was not, "In this second way. ..." but " In another way one is said to have a right. . .." And he went on to describe a third kind of right, the right of an owner in his own property, that he distinguished from the jurists' ius in re and ius ad rem. Later in this same passage he argued that a claim to receive something gratuitously, from another person's benevolence, could also be called a right, a ius accipiendi.17 If one emphasized such passages one could present Molina as an extreme defender of passive rights. But really he was not arguing about the issue raised by Tuck at all. In order to understand Gerson's very real role in the development of rights theories we need therefore to forget the imaginary dispute about active and passive rights, and tum back to the medieval texts themselves. RIGHTS AND CONCILIARISM

If we cannot explain Gerson's rights theory adequately in terms of late medieval nominalism, nor exclusively in terms of his moral theology, nor as a defense of active rights against passive rights, we are still left with the problem of explaining how he came to formulate his characteristic doctrines. Neither Villey nor Tuck emphasized Gerson's involvement with the conciliar movement of his own day as a way of understanding his rights theory. Tuck, indeed, dismissed conciliar thought as irrelevant. Any theory of rights, he noted was potentially individualistic. Hence, he argued, such a theory "played very little part in the communitarian, conciliar case.. .. "Jll This observation is in accord with much modem wo rk on conciliarism; but it seems to me open to.question. It is not only that Gerson's influential 36. Natural Rights, 53. 37 Ludovici Molin~ D~ justitia d j1m•, 5 vols. (Col0j1,nr 1mlr11l11lr hr hn1I l'I rll"h 1nttllllon uf tlwolo~y to drnw nn; hut it w.1s a tlwoloKY thnt l11ul •'lll1'hl'l11l1••1I lht• tmllvlchml riKhls ol t•.u-h




prelate in his own locality rather than collegial authority in the universal church. Ever since the 1250s, secular masters of the university had been concerned to defend the autonomy of local prelates against the claims of mendicant friars who, relying on papal privileges, came to preach and hear confessions in their churches. Walter Ullmann perhaps oversimplified when he described fifteenth-century conciliarism as "a resuscitation of the old episcopalist theory"; 39 but traditional episcopalism certainly did play a significant part in the conciliar argument that Gerson presented. And, in its earlier forms, medieval episcopalism was more like a theory of individual feudal immunities than like a theory of corporate representation. In the course of the earlier debates, the more extreme spokesmen for the friars (beginning with the Franciscan, Thomas of York, in 1256) argued that all ecclesiastical jurisdiction inhered in the pope. Since bishops and priests possessed only a subordinate authority, derived from the papacy, they had no licit reason for resisting the intrusion of the friars, whose work was also authorized by the popes. The episcopalists (led at first by the redoubtable Guillaume de St. Amour) replied that, although Christ had indeed instituted a papal office in Peter, he had also conferred authority on the twelve apostles (whose successors were the bishops) and on the seventy-two disciples (whose successors were the parish priests). The pope, Guillaume argued, had no power to disturb the general state of the church as Christ had established it. Since the original dispute concerned the claim of mendicant friars to enter parishes without permission of the local priest, the subsequent debate emphasized the status of the individual priest in his parish as much as that of the bishop in his diocese.40 This would eventually influence Gerson's teaching on the structure of a general council. The secular-mendicant quarrel had little to do with conciliarism at first; but, when conciliar doctrines were put forward by critics of the papacy like John of Paris early in the fourteenth century, papal supporters soon realized that the arguments developed in the earlier dispute provided an effective response to them. A century before Gerson, Hervaeus Natalis had observed that a pope's relation to his bishops was like that of a king to his stewards or bailiffs. A king, surrounded by his servants, had no more authority than a king alone; so too a council of prelates could add nothing to the authority of a pope (since any power they had was derived from him). 41 Any persuasive conciliar theory had to deal with arguments 39. W. Ullmann, A History of Political Thought. Tht Middlt Ages (Hannondsworlh, 1970), 223. 40. An excdlent guide to the whole controversy is provided by Y. Congar, Aspt>ets eccl~ siologiques de la querelle entre mendiants et s«ulien dans l.·ur•rr.;, to:.1 0-11priwi1l1'll11 ··,111.••11·1 ·· on thi~ ,li•pult'.

'14 ( lt-111•r1-s. 10·1.l . 41·111 •11·'·

7 ••PW 'IPl'l




commentary ever since the twelfth century.47 Gerson began his discussion with a consideration of the temporal claims of the papacy;.a but the more important part of the argument from our point of view dealt with the authority of the pope in relation to other "dignities" and "offices" within the church. Some "adulators," Gerson noted, claimed for the pope an absolute plenitude of power in this sphere at least. Against this, Gerson asserted that papal power was given for the "edification" of the church. Referring again to Paul's image of the church as one body, he wrote that it was wrong for the pope as head to usurp against nature "the duties of all the other members ... if all is eye or head, where is the foot, where is the hand?" Here Gerson spoke of duties (officia) but soon, as the argument progressed, the duties turned into rights.49 In order to prevent abuses of papal power, Gerson wanted to establish that a general council possessed an authority greater than that of the pope. Accordingly, he explained that a council included "every hierarchical status of the whole Catholic church" and that the two essential such hierarchical ranks were those of bishops and those of priests with care of souls. Then, to defend the inherent authority of these prelates in a council, he deployed the rights language that he had formulated earlier in the university declaration of 1409: In support of this is the decision of the sacred faculty of theology of Paris. . .. The lord priests are minor prelates in the church .. . to whom belong, by reason of their status, a right (i11s) of preaching, a right of hearing confessions, a right of administering sacraments, a right of giving burial, a right also of receiving tithes and other parochial rights (iura). 50


world-view the prelates gathered together at a council could not_ express 1he collegial authority of the whole church unless each had some inherent .1uthority of his own to bring to the assembly. But there still remains a question of why Gerson chose to defend that .1uthority so emphatically and repeatedly in terms of rights, iura. He could Ii.we used other language. The autonomy of lesser prelates was often deh'nded by referring to their status or rank or dignity or hon_or or ~ffic~, and < ;erson himself sometimes used such terms. The emphastS on 1ura m the 1>c potestate ecclesiastica and in the declaration of 1409 is perhaps explained i.y the fact that Gerson had already developed a sophistical~ concept , ,f i11s in his earlier writing, and found it well adapted for use m the _later ,·ontroversies. Moreover, the earlier theory was a broader one. The rights that we have seen Gerson defending so far were typically medieval ones, 11ghts pertaining to a particular status or offic~; and _the s~ift .from this !..ind of right to a concept of subjective natural nghts, •"!'enng mall per..ons is often seen as an essential difference between medieval and modem tho~ght. But, in Gerson's work, the argument m~ved in the_~pposite_ di11-ction; the specific rights claimed for prelates in the co_nahar treatises .ire only particular instances of a more general concept ~f n~~s d~vel~ped 111 his earlier theological writing, especially the De vita spintuah ammae. 1 lcnce, to understand the foundation of Gerson's theory of subjective 11~hts, we need to tum back to this earlier work. l( IG HTS AND REFORM

It was immediately after this lengthy adumbration of iura that Gerson moved on to his formal definition of ius in Consideratio 13. Because of the

whole tradition of ecclesiology that he had inherited, it seemed to Gerson necessary to defend the rights of individual bishops and parish priests, precisely in order to assert the supremacy of a general council. The contrast between organic and individualistic views of society that modem authors emphasize seems never to have occurred to him. In Gerson's 47. ~uvres, 6:236. For the canonists' views see A. Stickler, Nlmperator vicarius papae, Mittrilungtn des lnslituts for Oesterrrichischt Ceschichtsforschung 62 (1954): 165- 212. 48. Here Gerson used an argument from John of Paris (which he probably knew through Pierre d 'Ailly). Truth occupied a middle ground between Hdetractors" and "aduJators" of the papacy. 49. Oeuvres, 6:239. Gerson referred to individual rights in the mystical body in a different way in the Tractatus dt unitatt tcclesiat, written in January 1409 at the same time that he was preparing the University's statement on the Jean de Gorrell affair. After referring to tilt- church as a corpus mysticum, he wrote, NE! quaedam vera seu praetensa jura possunl dt'St'ri . ... Hoc nimirum dicta! naturae lex ut pars quaelibet pro suo to lo llalvando ~lt'l t•I t>xponat" (( >t111•rt:" 6:137- 138). GeTSOn had in mind here lilt- abdic,.tit>n or d l'J>tlfllllun u f lhr rlval J"'f"'~ 50. Orourts. 6: 242 (emphMiM n1ldt'S was perhaps a dubious move, and it was criticized by later writers who ac··•·pted Gerson's primary definition of ;us. But Gerson understood dt•arly "'" Oriwrrs. 3:129, "O sapiens Augustine quid noslra tempestate_d ixisscs ubi ... _inrn•.11 l•1li" t'St varirtas t'I dissona multiplicitas onerum .. . inter quas velut mteT laqut'n'i an1111o1nu11 ,., li..:.intia retia vix quis piam securus et indeprehensus incesserit." See_I.... rai!Cor, ~L-iw ~ml h •.mgdic;,I Libt>rty in tht> Thought o f Jean Gerson," Proceedings of tht' S1:rlh l~trrnalHma.I < "'' _..,,..,,of Mrilinvi/ Canon (Citti\ drl Vatkano, 19115), 351- 6\ . As PaKOl' p oints out, rl't'd lo Wydll loy nnme. (Fur references!'!('(' (N'ur•m