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    Natural Law and Natural Rights Old Problems and Recent Approaches Brian Tierney Widely divergent views exist among modem scholars concerning the relationship between natural Jaw and natural rights, Some hold that the bvo conceptsare logically incompatible with one another. Others maintain that natural rights were derived from natural law in the work of Aquinas or alternatively, that natural law was derived from natural right in the work of Hobbes. Alll these views seem open to criticism, An alternative approach is suggested by a consideration of the idea of permissive natural law, Ina recent review essay Edward Peters observed that the idea of human or natural rights has begun to acquire a reliable history, “removed from the benevolent and vague ethical claims of a number of religious and. ..political systems.” During the past few years there has indeed appeared a considerable body of work izacing the origins and development of natural rights thinking in the centuries before the classical age of Hobbes and Locke The recent work has not, however, led on to a new consensus. On the contrary, disagreements persist among modern scholars about some old but still unresolved problems concerning the relationship between natural law and natural rights Questions like these arise. Can natural rights be derived from natural law? Or are the natural rights primary and natural laws derived from them? Or can neither concept be derived from the other? Do the two ideas complement one another or are they inherently contradictory? A wide variety of viewpoints on these questions, often explicitly or implicitly contradicting one another, can be found in a recent symposium presenting a collection of essays on natural law and natural rights by legal scholars. One 1. Edward Peters, “Truth and Fiction in the Negotiation of Human Rights,” Human Rights Review 1 (1999) 113-19 at 114, 2. Two recent works that discuss the whole period from the twelfth century to the seventeenth are Annabel Brett, Liberty, Right and Nature: Individual RightS in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), Brian Tierney, The Mea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625 (Atlanta: Scholars Press, 1997}. 390 THE REVIEW OF POLITICS law professor referred to “natural law and the natural rights derived therefrom”; another maintained that the two concepts ought to be sharply distinguished from one another and went on to contrast their different meanings. Among other modern scholars one encounters the most diverse opinions. One author tells us that “[N]atural rights and traditional natural law are, to put it simply, yet altogether accurately, incompatible; to espouse one teaching is to make it impossible reasonably to espouse the other.” But another writer asserts that “There is...a genuine, strong connection between the philosophy of natural laws and rights.” We can read that “(T]he theory of natural rights was born with Hobbes,” but also that “Natural rights...may be traced back to natural law and natural law transports us back to the Greeks.”> ‘One could go on almost endlessly to construct a sort of Abelardian Sic et Non table of such contrasting statements and counter- statements in the modern literature. The two “Recent Approaches” that I want to consider in the following discussion also present divergent viewpoints, John Finnis has claimed to derive a doctrine of natural rights or human rights from Aquinas's teaching on natural law. Ernest Fortin finds no such teaching in Aquinas. Instead, he treats Hobbes as the great innovator in this sphere. Fortin maintains, reasserting an old argument of Leo Strauss, that Hobbes broke with the preceding tradition by treating the idea of natural right as fundamental and deriving from it a doctrine of natural laws. Both of these views scem to me mistaken. But, in criticizing them, my purpose is not to be merely negative. I want rather to suggest by way of conclusion that the difficulties in the arguments presented by Finnis and Fortin should alert us to the importance of another medieval and early modern way of looking at natural law and natural rights that neither of the two modern scholars had occasion to discuss. 3. "Symposium. Natural Law v, Natural Rights. What Are They? How do ‘They Differ?” Harvard Journal af Law and Public Policy 20 (1997): 627-731. The views in the text above were expressed by Douglas W. Kmiee and Randy E. Barnett, See pp. 628, 658 4. Walter Berns, In Dujense of Liberal Democracy (Chicago: Regnery Gateway, 1984), p. 8; Lloyde L- Weinreb, “Natural Law and Rights,” in Netiral Law Theory Contemporary Essays, ed, Robert P. George (Oxford: Clarendon Press, 1992), p. 280, 5. Norberto Bobbio, Thomas Hobbes and the Natural Lace fradition, trans. D. Gobetti (Chicago: University of Chicago Press, 193), p. 154; Michael Erewdten, Rights (Minneapolis: University of Minnesota Press, 1991), p. 25 NATURAL LAW AND NATURAL RIGHTS. 391 nis and Aquinas In approaching the work of Finnis let us consider one more antinomy. Michel Villey, who wrote extensively on natural law and natural rights in many books and articles published over a period of fifty years, maintained that the idea of subjective rights was “logically incompatible” with the teaching of Aquinas. Accordingly, he wrote that “There is no place in the system of St. Thomas for the idea of subjective rights considered as a power or liberty of the individual.” But Finnis argued that “In Aquinas’ understanding...rights are as fundamental as duties” and he also wrote, again referring to the teaching of Aquinas, “(T]here are rights which every member of our species is entitled to: human rights.”” Villey argued that an ancient Aristotelian doctrine of natural right persisted in classical Roman law and was still faithfully preserved in the work of Aquinas. But this concept was quite different from the modern idea of a subjective right, defined by Villey as “a faculty of the subject, one of his powers.” Inits classical meaning and still in Aquinas, ius meant “what is just” or “what is right.” In this sense iuis was a restraint on power, Villey noted. Hence it could not be the source of subjective rights understood as licit powers inhering in individuals.* For Villey it was all-important that, when Aquinas gave a formal definition of ius in the Summa Theologiae, he assigned an objective meaning to the word: Justice has its own special object apart from the other virtues and thi called the just, and this indeed is its, so it is evident that ius is the object, ‘of justice...in its original meaning ius signifies the just thing, ..law (lex) is not ins itself but rather the basis of ius.? 6, Michel Villey, Li formation de fa pensée juratigue moderne, ath ed. (Paris: Editions Montchrestien, 1975), pp, 227, 365. For a critical discussion of Villey’s work see Tierney, Idea of Natural Rights. pp, 13-42. 7 John Finnis, Aguinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), pp. 170, 176 8 Villey, Laformation, pp 227-30. See also Villey, “La genése du droit subjectif chez Guillaume d’ Occam,” Archives de philosophic du droit 9 (1964): 97-127 at 103-104. 9. Summa Theologine, 2. 2ae. 57. 1. 392 THE REVIEW OF POLITICS OO Although Aquinas gave several derivative meanings of ius in this context, they did not include any subjective sense of the word as. referring to a right of an individual. Finnis, therefore, had to attempt the considerable feat of extracting a subjective meaning from Aquinas’s objective definition. To achieve this he offered a reinterpretation of a key phrase of Aquinas, “lus is the object of justice.” For Villey the object of justice was the objective state of affairs that justice sought to achieve. But Finis argued that, in the text of Aquinas, the object ofjustice should be understood as referring to “the other person’s right(s) {ius}.” Finnis used “curly” brackets when he was quoting directly from Aquinas. But Aquinas's own definition did not have any reference to other persons’ rights. Finis therefore emphasized another usage of Aquinas, his acceptance of the Roman law definition of justice as a steady willingness to give to others “what is their right (ius suum}. But the word ius as used here did not have the same meaning as our English word “right” used in a subjective sense, The modern word implies a certain freedom of choice, a freedom to act or not act in the relevant sphere. The ius of an ancient Roman, what was due to him, might be a punishment. Villey observed that the ius of a parricide was to be tied up in a sack of vipers and thrown into the Tiber. In other contexts of Roman law the word ius was used to mean what we should call a right—eg., ius testandi, the right of making a will." But Roman jurisprudence had no conception of human rights or natural rights inhering in all persons by virtue of their humanity. To find such a concept in Aquinas Finnis turned to the Thomist doctrine of natural law. He interpreted it like this. “[I]f [ have a natural—as we would now say, human— right I have it by virtue of natural law {ius naturale)...law natural 10. Finis, Aguinas, p. 133. UL ibid, p. 133. 12. There are similar usages in Aquinas too when he was using the word jus unreflectively. See Finnis, Aquinas, p. 133 n.10. Villey thought it important to distinguish between the use of the terms ius and lex in Aquinas's work. Finnis correctly points out that Aquinas occasionally used the terms interchangeably. The immediate point is that for Villey neither Aquinas's ius naturale nor lex naturals implied anything likea modern doctrine of rights. Inan earlier work Finnis criticized Villey's interpretation of Aquinas, In his more recent book he seems sometimes to be responding to Villey’s arguments but he doesnot mention the French scholar by name, nor does he include any of Villey’s numerous works in his bibliography. NATURAL LAW AND NATURAL RIGHTS 393 or positive is the basis for one’s right(s) {ratio iuris}’"* But when Aquinas wrote that law is the basis of tight (lex...est...ratio turis) he was referring explicitly to his immediately preceding objective definition of fs as “the just.” There is no doctrine of subjective rights in Aquinas's text. Finnis went on to argue that the teaching of Aquinas holding that all persons could suffer injustices (iiuriae) implied that all had rights (jura). He listed some of the injuries mentioned by Aquinas and added his own interpretation of their significance. not to be intentionally killed by another private person or in any way physically {in personam| harmed, or cuckolded, or subjected to 105s or damage of property, or falsely accused of in any way deformed, Such a list of ijuriae—violation of right(s) is implicitly a list precisely of rights to which one is entitled simply by virtue of one’s being a perso But, when we turn to the cited text of Aquinas, there is no reference to rights, implicit or otherwise. Aquinas was in fact commenting, here on the second table of the Decalogue. Finis was, in effect, making the same argument that a French author, Félicien Rousseau, had presented more bluntly a few years earlier. Rousseau wrote that the Decalogue was “the oldest charter of the rights of man.”!5 Commenting on this, Ernest Fortin understandably wondered why the document is always referred to as the “ten commandments” rather than the “ten rights.” In fact, on this argument, every code of law from Hammurabi’s onward could be presented as a code of rights. But this is to make 13. Finnis, Aquinas, p. 135, See Summa Theologiae, 2. 2ae. 57.1, When Finis considered Aquinas's treatment of unjust laws (p.136),he wrote in similar fashion, “{1lfa statute declares permissible something which, contrary (o natural law {ius naturale), violates someone’s natural right(s), the statue is overridden by the right(s),” citing 2. 2ae. 57.2. But the text of Aquinas has no reference to subjective rights. Paul Cornish has also argued that Aquinas used “a language of subjective rights.” But he only shows that Aquinas considered situations that might well have been discussed in terms of natural rights. Aquinas himself, however did not choose to argue in that way: Aquinas never used the terms ius naturale or iura natraliain a subjective sense, See P Comish. “Marriage, Slavery and Natural Rights in the Political Thought of Aquinas,” Review of Politics 60 (1998): 545-61 14. Finis, Aquinas, p. 136 referring to Summa Theologiae, 2. 2ae. 122. 6 15, élicien Rousseau. La croissance solidaire des droits de homme (Montreal: Desclée et cie, 1982), p. 173. Villey once complained about scholars who found a doctrine of subjective rights in “Roman law, medieval law, and even in...cuneiform law.” See “La geneése,” p. 102. 394 THE REVIEW OF POLITICS ee the mistake that Peters complained about—the error of discerning a doctrine of human or natural rights each time we encounter some congenial ethical claim in any religious or political Moral teachings can be expressed in a variety of ways—for instance, as divine commands, or as utilitarian norms, ot as rationally derived rules of conduct. But, if we are trying to understand the history of natural rights thinking, it merely confuses the issue if we See an assertion of natural or human rights whenever we encounter moral or legal teachings that are not inconsistent with the idea of subjective rights but that actually make no appeal to such rights as the basis of their formulations Itis true that the Ten Commandments—some more readily than others—might be reformulated as assertions of individual rights. ‘The point is that it did not occur to any early Christian scholar or to any Jewish rabbi that this would be in any way an interesting or rewarding enterprise. Nor did it occur to Aquinas. Finnis does show, [ think, that Aquinas's natural law teaching was not inconsistent with a commitment to natural rights, and that Villey exaggerated when he held that the two ways of thinking were “logically incompatible” with onc another.” After alll, later Spanish Thomists were able, without undue strain, to associate Aquinas’s natural law with their own teachings on natural rights, which were derived mainly from juridical sources and from Gerson. But to say that two systems of thought are not inconsistent with one another is not to assert that one of them can be derived from the other—in this case natural rights from natural law. Finnis’s argument fails to establish such a relationship in the work of Aquinas. 16, Robert Cover has explained how rabbinic scholars built up a complex jurisprudence without appealing to the idea of rightsby emphasizing the altemative concept of mitzwh. See “Obligations: A Jewish Jurisprudence of the Social Order,” in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow et al. (Ann Arbor, Mi: University of Michigan Press, 1992), pp. 239-48. 17. Anthony Lisska argued that one could derive a series of rights from Aquinas's four “inclinations”; but they would only be rights to eonform to the manclates of natural law, He noted that “Aquinas had neither the tern stor the moder concept of ‘right’ in his philosophical lexicon,” See A. Lisska, Aguivis’s Theory of Natural Lane: An Analytical Reconstruction (Oxford: Clarendon Press, 19%), pp. 233-38, 243, Lisska also presents a critical discussion of Henry Veatch’s Gerivation of rights from “obligatory duties” in Veatch, Hiemian Rights: Factor Fancy? (Baton Rouge, LA: Louisiana State University Press, 1985) NATURAL LAW AND NATURAL RIGHTS 395 For a final discussion of this point we can turn to a thoughtful study by Michael Zuckert. Zuckert notes that, arguing within Aquinas's framework of natural law, one could maintain that, if we have a natural law duty to act in a certain way, we must also have a right to so act, and it follows also that others have rights in the sense that they are the beneficiaries of the duties we owe them." This is, in effect, how Finnis argues. But Zuckert points out that all this does not add up toa theory of human rights as we normally understand the term in contemporary discourse. To have such a right is not just tobe authorized to perform an antecedent duty or tobe the beneficiary of another's duty. The right implies also a sphere of personal autonomy within which an agent is not obliged to act but is free to determine his or her own course of action, for instance to exercise the right or not exercise it as he or she chooses. Accordingly, echoing aclassic definition of H. L.A. Hart, Zuckert wrote of a right as defining “a realm of sovereignty or of relatively completely free choice.” But this kind of right can not readily be derived from Aquinas’s natural Jaw teaching. As Zuckert noted, Aquinas derived the word lex (law) from ligare (to bind); but a binding natural law is not the same as a natural right. As Zuckert again observed, “A rights version focuses on the self-assertion of agents; the genuine natural-law version focuses on the moral command or address to each.”” A moral command of natural law limits our freedom of action; a natural right affirms a sphere of individual autonomy and free choice. One cannot deduce the one from the other. And so, Zuckert concluded, “[NJatural rights do not derive from natural law."”" Fortin and Hobbes There remains another possibility. Perhaps natural law can be derived from natural rights, a view that has frequently been 18, Michael Zuckert, “Do Natural Rights Derive From Natural Law?” Harvurd Journal of Law and Public Policy 3 (1997): 695-731 at 714, 19. bid, p. 716. 20..bid,, pp. 705, 716, Fora similar view see Jack Donnelly, “Natural Law and Right in Aquinas’ Political Thought,” Western Politica! Quarterly 33 (1980): 520-35, “Liberties and entitlements distinguish rights from law so fundamentally that we ‘can say that law and rights point in different directions” (p. 529), 21, Zuckert, “Do Natural Rights Derive From Natural Law?” p. 731. Zuckert ‘was referring here to Locke as well as Aquinas, 396 THE REVIEW OF POLITICS eee attributed to Thomas Hobbes. In his early work on Hobbes, Leo Strauss asserted that such an argument was indeed a characteristic feature of Hobbes’s political theory, and the assertion has often been repeated by Straussians and others.” have taken Ernest Fortin as a typical example of this school of thought because, in the recent volumes of his collected essays, he offers a particularly vigorous and forthright reaffirmation of the original Straussian position. Fortin maintains that Hobbes was the founder of “modernity” and especially of “a specifically modern notion of rights.” On this view, the novelty of Hobbes’s position consisted in “its proclamation of rights rather than duties as the primary moral counter.” After mentioning Hobbes’s right of self-preservation, Fortin continued, “From this primordial right of nature Hobbes goes on to deduce...the various laws of nature.”* But although this point of view has often been asserted, it lacks any sure foundation in Hobbes’s writings. There is an obvious difficulty in the argument. Hobbes repeatedly asserted that natural law imposed restraints on our behavior, while natural right referred to an untrammeled liberty. And, just as this understanding makes it difficult to derive natural rights from natural law, so too it renders the counter-assertion problematical— that the law is derived from the right. 22. Leo Strauss, The Political Philosophy of Hobbes, trans, Elsa M. Sinclair (Chicago: University of Chicago Press, 1952) (reprint of the 1936 edition), p. 157. For a few later examples see Walter Berns Liberal Democracy, p.9, “In the teachings. of Hobbes and Locke, the laws of nature are merely deductions from the rights of nature"; Lawrence Berns, “Hobbes,” in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, 3rd ed. (Chicago: University of Chicago Press, 1987), p. 401, “Allthe laws of natute...are derived from and subordinate to the right of nature”, Michael Zuckert, “Do Natural Rights Derive From Natural Law,” p. 702, “Hobbes.,.claimed that natural right comes first and natural law derives therefrom’; lan Shapiro, The Evolution of Rights in Liberal Theory (Cambridge ‘Cambridge University Press, 1986), p. 42, “To Hobbes...natural laws are derived from his accountof man’s natural capacities. .man‘snatural rights.” Richard Tuck agreed in part with Strauss in his Hobbes (Oxford: Oxford University Press, 1989), p. 102, "Strauss in my view correctly recognized that Hobbes subordinated natural law to natural rights.” But Tuck's own discussions of the issue are more nuanced. 23. Emest Fortin, Collected Essays, ed]. Brian Benstead (Lanham, MD: Rowman and Littlefield Publishers Inc,, 1996), vol. 2, Classical Christianity and the Political Onier, p 249) NATURAL LAW AND NATURAL RIGHTS. 397 Fortin quotes Hobbes’s famous definition: THE RIGHT OF NATURE, which Writers commonly call Jus Naturale, is the liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature." But Fortin ignores the following passage: ALAW OF NATURE, (Lex Naturalis; isa Precept or Generall Rule found ‘out by Reason, by which a man is forbidden to do, that , which is destructive of his life...Law, and Right, differ as much, as Obligation, and Liberty. There is no argument here that the law was derived from the right, and indeed Hobbes’s language seems to exclude the possibility. Hobbes did not go on, as Fortin suggested, to derive a series of natural laws from the original right of nature but from a “Fundamentall Law of nature” by which men were commanded to seek peace. From this fundamental law Hobbes went on to derive nineteen subsidiary laws of nature. He summed them up, deliberately I suspect, and perhaps a little slyly, in language that reads like a close paraphrase of the first words of Gratian’s Decretum, a work that had been a locus classicus for the discussion of natural law ever since the twelfth century. This is that Law of the Gospel; Whatsoever you require that others should do to you, that do ye to them. And that law of all men, Quod tibi fieri non vis, alteri ne feceris® Echoing a theme of late medieval voluntarism Hobbes wrote that the laws of nature, considered simply as precepts of reason, were mere theorems but that they possessed binding force when they were considered also as divine commands.” By emphasizing such 24. Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1991), chap. 14, p. 91 25. Ibid. 26. ibid.,chap. 14, p.92. Hobbes liked sometimes to expresshis novel ideas in traditional language. He went on (p. 110} to give a new idiosyncratic meaning (0 the old canonistic terms forum initermum and forum externum. Gratian’s work was still widely studied and quoted in the seventeenth century. Filmer referred to the first chapters of the Decretum in his criticism of Grotius. Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge: Cambridge University Press, 1991), pp. 208-209, 27. Ibid., chap.16, p. 111. 398 THE REVIEW OF POLITICS OO texts one can present Hobbes as a deontological thinker, as Howard Warrender most notably did. But there are many difficulties in Hobbes’s language and they have given tise to many different understandings of his concept of natural law: Even at this preliminary level of analysis there is an obvious semantic problem. A “theorem” is not a “precept.” Iam concerned here only with the specific issue of the relationship between rights and law in Hobbes’s work, but further problems arose precisely in this regard from Hobbes’s definitions (quoted above) of ius (right) and lex (law), the key to his whole argument. When Hobbes gave his univocal definitions of these terms he was not of course describing the actual usage of the words in the juridical and philosophical discourse of his own day. lus and lex had a variety of other meanings in medieval and early modern texts. By assigning to each word a single signification Hobbes was attempting an act of unilateral linguistic legislation. He was using a sort of Humpty Dumpty approach to semantics. (‘When I use a word it means just what I choose it to mean.”) Or, one might say, Hobbes was acting in the realm of language like his own absolute sovereign in the world of politics. If Hobbes’s linguistic ploy had produced some new clarity of understanding concerning law and right it might seem justified, but in fact it led on to paradoxes that have teased the minds of Hobbes’s many commentators ever since he first wrote.” For instance, Hobbes first asserted that liberty consisted simply in “the absence of external impediments” but then he added at once that the law of nature—a precept of reason not an external impediment—also restrained liberty. RIGHT, consisteth in liberty to do, or to forbeare; Whereas LAW, determineth, and bindeth to one of them: so that Law and Right differ as much as obligation and liberty; which in one and the same matter are inconsistent.” But the conclusion does not evidently follow from the preceding argument. [n an act of self-defense the law and the right coincide; 28, Some of Hobbes's paradoxes are discussed in Matthew H. Kramer, Hobbes, and the Paradoxes of Political Origins (New York: St. Martin’s Press Inc., 1997) Kramer's notes provide a good critical review of the more important modern interpretations of Hobbes's thought. 29, Leviathan, chap. 14, p. 91. NATURAL LAW AND NATURAL RIGHTS 399 they are not inconsistent with one another. This was pointed out by one of Hobbes's earliest critics, Sir Robert Filmer. Referring to self-preservation, he wrote that “the right of nature and the law of nature will be all one.” If, however, we accept Hobbes's text simply as an assertion of his own viewpoint and apply it to our original question—did Hobbes derive the law of nature from the right of natute?—it seems clear that he himself had no such intention. Rather he insisted on the irreconcilability of the two ideas. One can illustrate the point once more from one of Hobbes’s earlier definitions. In the De cive he wrote, “Law is a fetter, Right is freedome, and they differ like contraries.”But one cannot derive a fetter from a freedom." Evidently Hobbes did not derive natural law from natural right. Permissive Natural Law Our inquiry seems to have ended in an impasse. The arguments we have considered, that seek to derive natural rights from Aquinas’s natural law or natural law from Hobbes’s natural right, are unpersuasive. The two concepts do not seem to depend ‘on one another and yet through the course of the centuries they have commonly been associated together. The impasse arises from the perception that natural law binds us to certain courses of action while natural right refers toa sphere of human autonomy of liberty. We can perhaps find a way out of the impasse by considering another aspect of medieval and early modern natural law teaching that has often been ignored by modern scholars.” At least from. the twelfth century onward, it was understood that natural law could be permissive as well as preceptive. Natural law not only 30. Patriarcha, p. 189. 31. De cive: The English Version, ed. Howard Warrender (Oxford: Clarendon Press, 1983), p. 170. OF course one can reasonably argue that it is the human propensity for violent and unruly behavior that necessitates the institution of laws and coercive government, But thisisan age-old platitude taught by Augustine and many others, not a breakthrough contribution of Hobbes, 32. Villey is one exception. He did mention the significance of permissive law, especially in his later works. See Le drott et les droits de Vhommme (Paris: Presses universitaires de France, 1983), p. 123. But Villey did not investigate the origin and development of the idea. 400 THE REVIEW OF POLITICS commanded and prohibited; it also defined a sphere of licit or permitted human behavior, and this permissive natural law was commonly seen as a ground of natural rights.® It is a doctrine different from those we have encountered in Aquinas and Hobbes. The idea that law could be permissive as well as preceptive occurs in both Roman and canon law. According to a text of the Digest, “The force of law is to command, prohibit, permit and punish.” The Decretum of Gratian included a similar passage taken from Isidore of Seville. “Every law either permits something...or it prohibits something ....or it punishes.” The idea of a permissive natural law seems to have been discussed first among the twelfth- century canonists. They encountered several different usages of ius naturale in their great textbook, Gratian’s Decretum, and often. gave lists of all the various meanings of the term. Among, them they sometimes included a permissive sense. Ina second way ius naturale means what is permitted and approved but not commanded or prohibited by the Lord or by statute as for instance to reclaim one’s own or not to reclaim it, to eat something or not to eat it. .whence upon the words of the apostle “Ail things are permitted to me," Ambrose commented, "by the law of nature” (lege naturae).” The Decretists found a practical application for this doctrine when they considered the acquisition of private property. According to various texts of the Decretwm, all things were common according to natural law and human law contrary to natural law was invalid. Itseemed then that the ownership of private property must be illicit. But this conclusion was quite unacceptable to twelfth-century lawyers. Among the various explanations that were offered, one presented by the great canonist Huguccio (c.1190) invoked the idea ‘of permissive natural law to resolve the problem, By the law of nature something is mine and something is yours, but this is by permission not by precept, for divine law never commanded that all things be common or that some things be private but it permitted 33. The account of permissive law in the text above is based in part on my articles, ”Kant on Property: The Problem of Permissive Law” and “Permissive Natural Law and Property. Gratian to Kant,” Journal ofthe History of Ideas 62 (2001) 301-312 and 381-9. 434. Digest, 1. 3.7; Decretum Gratiani, Dist. 3 ¢4. 35. Summa, In nomine (¢ 1185). The text is printed in Tierney, Idea of Natural Rights, p. 67 NATURAL LAW AND NATURAL RIGHTS 40L aes KS that all things be common or some private and so by natural law something is common and something Is private.” From this time onward, from the twelfth century to the age of Hobbes and Locke and beyond, the idea of permissive natural law was persistently invoked as a ground of natural right, especially the right to property. In this way of thinking natural law defined an area of human autonomy and free choice but not a state of total license. The permissions of the law of nature were bounded by the commands and prohibitions of that same law. Within this framework of natural law thinking the rights derived from permissive natural law were entitled to the respect of others and likewise a right-holder was held not to violate others’ rights. In mid-thirteenth century the canonist-pope, Innocent IV, explained that the natural right to property of a first occupant was protected by the natural law commanding us not to do to another what we do not want done to ourselves.” We have no detailed history of the concept of permissive natural law and its varied applications in Western thought through the course of several centuries. Here I can only mention a few steps along the way to illustrate the persistence of the doctrine Early in the fourteenth century, Marsilius of Padua, considering both divine and human laws, wrote that each law was “a command or prohibition or permission.” Marsilius noted that, when the law commanded something, it implicitly permitted the prescribed act and that when the law prohibited something it permitted abstention from the relevant act. But apart from these implied permissions there was a specific area of permissive law that did not oblige a person to any particular course of action Along with the discussion of permissive law Marsilius gave various senses of the word right (ius). On the basis of these definitions of law and right he argued for a right to acquire property and also a right to renounce all ownership (as the Franciscans of his day claimed to have done.)* 136, Huguccio, Summa Decretorum (c.1190), printed in idea of Natural Rights, p.142. 437.Commentaria innocent... super tbros quingue decretalium (Frankfurt: Minerva GmbH, 1968) roprint of 1570 edition), Cont. ad, X. 3.34 8, fol, 430ra. 38.Marsilius of Padua. The Defender ofthe Peace, 2 vols. ed, and trans.A. Gewirth (New York: Columbia University Press, 1951-1956), vol, 2, The Defensor Pacis, pp. 187, 195, Essentially these same distinctions concerning permissive law were made by Gottiried Acheriwall inthe eighteenth century. Achenwall’s work has been seen 402 THE REVIEW OF POLITICS Marsilius's contemporary, the eminent canonist Johannes Andreae, provided a detailed discussion of permission in relation to Roman law, canon law, and natural law. In the course of his argument he defined a kind of permission that laid an obligation on others. According to Johannes there were three kinds of permissive law. Permissio simplex merely meant that the relevant action would not be punished by law, but permissio follens impedimentum prohibited others from impeding the exercise of the permission. Finally, permissio praestans auxilium actually lent assistance to the performance of the permitted act.” In the sixteenth century Vitoria used the idea of permissive law when he attempted—like Finis centuries later—to derive a subjective meaning from Aquinas’s objective definition of ius Vitoria argued that Aquinas's phrase, Lex...est...ratio iuris ("Law is the ground of right”), meant that ius signified what was permitted by law. Then he continued: And so we use the word when we speak, for we say, “I have not the right (is) of doing this,” that is it is not permitted to me, or again, “I use my right,” that is, it is permitted.” But of course Aquinas himself did not deploy this language. In discussing the origin of private property Vitoria envisioned a state of nature where each individual was the owner of everything and could use anything as he pleased—but Vitoria added “provided that he does not harm other people,” a qualification conspicuously lacking in the later argument of Hobbes." Then Vitoria turned again to the idea of permissive natural law to explain how rights to private property could emerge from this original situation even though community of property pertained to natural law. Law could be preceptive or consultative or permissive, Vitoria wrote, and the natural law relating to common possession was only as a major step in the development of modem deontic logic; but as happens not infrequently the eighteenth-century author had a medieval precursor. See J Hruschka, Das deontologische Sechseck bei Gottfried Achenceal in Jahre 1767 (Gottingen Vandenhoeck and Ruprecht, 1986). 39. fn titulum de Regulis iuris commentaria (Venice; Apud Franciscum Franeiscanium, 1581), fol. 64-65. 40. Commentariosu fa Secursda Secundae de Santo Tomas, ed. Vicente Beltran de Heredio (Madrid: Asociacion Francisco de Vitoria, 1934), p. 64 4, Ibid, p. 74 NATURAL LAW AND NATURAL RIGHTS 403 permissive. Hence, it was licit for humans to come together and make compacts establishing individual properties. Suarez in his turn invoked the idea of permissive natural law to explain the origin of private property with references to the twelfth-century canonistic texts that had initiated the discussion. Natural law could be not only preceptive but also “permissive or negative or concessive” according to Suarez. He explained that permissive natural law could not allow any conduct that was evil in itself butit could define a sphere of natural rights where humans were free to act as they chose. Suarez added a detailed argument explaining how natural law could impose an obligation not to violate the rights conceded by that law. Permissive law could not be wholly separated from preceptive and prohibitory law, he argued. Hence, while permissive natural law allowed the exercise of certain rights, preceptive natural law protected those rights against violation by others. ‘The right to all these things is natural, that is they are all permitted by right of nature (jure naturae); and in the same way the obligation not to violate such a right of another is of natural law (mattratts legis) The work of Grotius can provide a final example of this theme in the era before Hobbes. At the outset of his early work, De iure praedae, Grotius presented two laws that were divinely willed and also accessible to human reason. They were both permissive laws. “Tt shall be permissible to defend one's life” and " It shall be permissible to acquire...those things that are useful for life.” But these permissions were not unlimited. They were “complemented and confined within just limits” by two preceptive laws. “Let no one inflict injury on his fellow” and “Let no one seize possession of that which has been taken into the possession of another."*” 42. Ibid, pp. 76-77. 43. Tractatus de legibus et legistatore deo, ed. C. Berton, R. P. Francisci Suarez...opera omnia, V, 2, 14.6, p. 137. 44, Ibid., 1. 15. 1-16, pp. 59-63. 45. Ibid., 2.18.5, p. 164. 46. Ibid, 2. 18. 8, p. 165. Suarez was referring here to natural rights in a just war. For more on Suarez’ arguments see Tiemey, Idea of Natural Rights, pp. 302- 308 and “Gratian to Kant” (above, n.33), pp. 390-93, 47. De jure praedae commentarius, trans. G. L. Williams (Oxford: Clarendon Press, 1950), pp. 10, 13, 404 THE REVIEW OF POLITICS The discussion of permissive law carried over into Grotius’s major work, De iure belli et pacis. In order to prove that war was not necessarily unjust according to natural law Grotius quoted a dictum of Roman law, “It is permissible to repel force with force and this law is ordained by nature.” He argued accordingly that in a prepolitical society—and sometimes even after the establishment of courts of judicature—private warfare was permissible in defense of one’s life and property. But Grotius also insisted that the use of force was licit only provided that the rights of others were not infringed. Evidently Hobbes broke with this tradition of discourse. His. natural right was “a Right to everything; even to another’s body.” And Hobbes’s univocal definition of law as a fetter or restraint excluded the idea of a permissive natural law, within which natural rights would have entailed duties to others and mutual obligations. Presumably Hobbes saw good reason to avoid this line of argument. Hobbes’s sovereign possessed the same right that all humans had possessed in a state of nature; but, in the new situation created by the institution of a political society, only the sovereign could exercise that right. If the right that each one had held in a state of nature had involved mutual obligations of each to all, and this same right came to inhere in the sovereign, then ties of obligation would have existed between the sovereign and his subjects. But that was precisely the conclusion that Hobbes wanted to avoid in his construction of the state as Leviathan. Hobbes’s new way of arguing did not, however, prevail. Locke soon returned to a more traditional mode of discourse. In the Second Treatise he wrote that humans were free to act “within the permission of the Law of Nature.”®" In accordance with the long established tradition of writing on this theme he held that mutual obligations existed in the area of freedom defined by permissive 48. De jure belli ef pacis, ed. J. B. Scott (Washington D.C.: Camegie Institute, 1913) (Reproduction of the edition of 1646), p. 17. 49. Ibid., p. 16. The whole work of Grotius might be regarded asa treatise on permissive law. Book 2 discussed when it was permissible to go to war and book 3 the kinds of behavior that were permissible in the conduct of war. 50. Leviathan, chap. 14, p. 91 BI. Two Treatises on Government, ed, Peter Laslett (Cambridge: Cambridge University Press, 1964), Second Treatise, 8 128, p.370. See also § 4, p. 267, “within the bounds of the Law of Nature”, $59, p. 325, "within the Permission of that Law.” NATURAL LAW AND NATURAL RIGHTS. 405 natural law. In the state of nature humans enjoyed “a perfect freedom” but “within the bounds of the law of nature.”** Locke's state of nature was “a state of liberty yet...not a state of license.” In the state of nature “all the power and jurisdiction is reciprocal.” And the law of nature provided that no one should harm another and that all be “restrained from invading others’ rights.’ The idea of permissive natural law as a ground of natural rights persisted throughout the eighteenth century. Christian Wolff expressed the doctrine most succinctly. ‘The law of nature is called preceptive when it obliges us to perform some act, prohibitive when it obliges us to omit some act, and permissive when it gives us a fight to act” Burlamagqui too wrote that all the rights that “leave us at liberty to use them or not” were grounded in permissive law.** Even Kant invoked the idea of permissive natural law in explaining the origin of individual property” Evidently our theme was a significant one in natural law thinking over a long period of time. Reflecting on permissive natural law may suggest a response to our original question concerning the relationship between natural law and natural rights. Perhaps we should see the two, not as derived one from the other, but rather as both rooted in human nature itself—the rights in the human capacity for free choice that requires a realm of individual autonomy for its exercise, the laws in the human “inclinations” defined by Aquinas." Permissive natural law does not exactly confer rights on human persons; rather it defines an area within which their inherent power of free choice can licitly be exercised. Preceptive natural law sets bounds that prevent liberty from degenerating into a 52, Ibid, § 4, p. 287. 53, Ibid.,§ 6, p. 288. ‘54, Ibid., § 7, p. 289. 55. Institutiones iuris naturae et gentiune, ed. M. Thomann in Christian Wolff Gesammelte Werke, abt.2.26 (Hildesheimn: Georg Olms Buchhandlung, 1969) (reprint of the 1750 edition), § 47, p. 24. 56. The Principles of Natural and Politic Law, 5th ed. (Cambridge: Cambridge University Press, 1807), p. 125. 57. The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1991), p. 69. 58. Summa Theologiae, 1. 2ae. 94. 2 406 THE REVIEW OF POLITICS A license that could be destructive of human society. In the words of Locke, the end of law is “not to abolish and restrain but to preserve and enlarge freedom” because law “hedges us in only from bogs and precipices.”” One further result of our inquiry deserves emphasis—the fact that neither Aquinas nor Hobbes chose to assimilate the concept of permissive natural law into his system of thought even though the idea was widespread in other works of law and philosophy.” This helps explain why neither author developed a meaningful concept of natural rights." It also helps explain why the idea of permissive natural law has not been much discussed by modern historians of political theory who often take Aquinas as the prototypical medieval thinker and Hobbes as the central figure in seventeenth-century political thought. As I once wrote, with the pethaps pardonable exasperation of a medievalist, in many general courses on the history of political thought, Aquinas provides the only stepping-stone between Augustine and the familiar world of Machiavelli and Hobbes and Locke. This approach, however, ignores a mass of other medieval writing, especially the vast body of work by medieval jurists, that contributed to the emergence of modern political thought. In particular, it leads to a neglect of the theme we have pursued concerning permissive natural law. But this concept—even though it is lacking in the work of Aquinas and Hobbes—provides indispensable material for understanding the interplay between the ideas of natural law and natural rights from the twelfth century through the age of the Enlightenment. 59, Second Treatise, § 57, pp. 323-24, 60, Aquinas understood that law could be permissive (Summa Theologiae, 1. 2ae, 92.2); but he did not develop a doctrine of permissive natural law. For lobes 4 subject's liberty existed only in the absence of any law, in what the sovereign “ praetermitted” (Leciathan, chap. 21, p. 147) 61. In various contexts (eg, those relating to the limits of human law) Aquinas could have presented a doctrine of natural rights not derived from his teaching on natural law, but complementing it, But he did not choose to do so. In referring to Hobbes’s doctrine of natural right as not meaningful {had in mind his commentin the De ive that “the effects of this Right are the same, almost, as if there had been no Right at all” (p. 49). 62. B. Tiemey, ” Hierarchy, Consent, and the ‘Western Tradition,” Political Theory 15 (1987): 646-52. NATURAL LAW AND NATURAL RIGHTS 407 Aquinas on ius and Hart on Rights: A Response to Tierney John M. Finnis Of course Aquinas uses the term ius in an “objective” sense, to mean “the just,” “the just thing,” or the “just state of affairs” called for by the virtue of justice.' But he also uses ius in a “subjective” sense, to refer to a right or rights that someone, the “subject,” has. Brian Tierney fails to see this, for three reasons, I think: though he has been an effective critic of Villey’s historical analyses, he now seems gripped by Villey’s non sequitur (if objective then not subjective); he looks to Aquinas's “phrases,” “usages,” and “terms,” sometimes neglecting the arguments in which Aquinas uses them; and, at least in this new essay, he employs a simplistic understanding of the modern idea of rights. Tierney’s quotation from ILIEg. 57 a. 1 omits the connectives which show that Aquinas's “definition” of ius is a conclusion from a careful train of reasoning. The reasoning begins with the thought that justice is distinguished by directing us in matters which concern other persons. The succeeding sentences, leading up to the quasi-definition (which Tierney quotes, without its opening, “therefore” {propter hoc), are clear: the iustumn is typically an act or forbearance, something [to be} done {fiat} or not done, considered in its relation, and thus also the acting person’s relationship, to some other person. This relationship involves an equality between the two persons: the act is right, with the rectum in operibus characteristic of justice, when the act is in line with 1. “Aquinas's primary definition of ius: that act, forbearance, or other thing which is just" For what is just is what the virtue of justice requires the relevant person(s} to give to, or do for, or abstain from in relation to, someone else” Finnis, Aguinas: Moral, Politic, and Legal Theory (Oxford University Press, 1998), p. 135. Footnote 6 to that passage cites and quotes the decisive texts from IL-II q, 57 a. 1 See also Finis, Natural Law and Natural Rights (Oxford University Press, 1980), p. 206:'"The primary meaning, [Aquinas] says is ‘the just thing itself’ (and by ‘thing’, as the context makes clear, he meansacts, objects, and states of affairs, considered as subject-matters of relationships of justice). One could say for Aquinas ‘js’ primarily means ‘the fair’ or ‘the what's fair’; indeed, if one could use the adverb ‘aright’ as a noun, one could say that his primary account is ef ‘arights’ (rather than of rights)’ (citing III g. 57a. 1¢, ad 1 and ad 2, as Tierney does). 408 THE REVIEW OF POLITICS that equality. Thus the Tierney-Villey characterization of iustum (and so also of ius) as “the right thing or state of affairs...that justice [seeks] to achieve” omits an essential element in Aquinas's ‘conception: one cannot properly think of ius without thinking of the other to whom an act, forbearance, or acceptance is, in justice, owed. (The example in q. 57a. 1c is the payment (recompensatio|— an action!—of the wage due {mercedis debitae} to the other for services rendered.) Which other? The one who, as Aquinas promptly and constantly says, Has the relevant ius. Thus ius can closely match? our word “right,” signifying something someone has. Having begun q. 57 by identifying ius as the object of justice, Aquinas, in 4. 58 a. 1c, defines justice as willingness to accord to the other his or her right {ius suum), or synonymously, what is his or kers {suum}. How can it be denied that, as something that belongs to the person who has it, ius is “subjective” ‘Tierney's answer is short: “the word ius as used here [in the phrase ius suum] did not have the same meaning as our English word ‘right’ used in a subjective sense. The modern word implies a certain freedom of choice, a freedom to act or not in the relevant 2. See ¢g,, the passages analysed and cited in Aquinas, pp. 133-34. There are many passages in Aquinas where even the surface syntax says “X has @ right to choose whether or not to} do such and such’”:e.g., “she has the right to request the marital intercourse to which spouses are entitled [habet ius petendi [debitum]}" (a phrase very frequent in Aquinas, who also uses similar forms such as "a wife has a [sexual] right over her husband's body (ius habetin corpore viril,” etc); "someone hhas a right to contract marriage [with someone of his or her choice} [ius habet contrahendi cum..."; "free people have a right of opposing their government in some respects liberi. habent ius in aliquo contradicendi...|"; ef, also “every Christian has a right to receive the eucharist unless he loses it by...{quilibet christianus habet ius in perceptione eucharistiae nis...amittat|”; and so forth. Some of the rights we may “have,” according to Aquinas, are not todo but rather tobe the abject of someone else's doings e.g. the right to be paid tithes thabent ius accipiendi ‘decimas|; and there are other kinds of us which Aquinas says people have thabent) 3. The synonymity here of ius sium with plain suumt is important exegetical evidence: Finnis, Aquinas, p. 133; Tierney’s omission of it from his rendering of my position is characteristic of his methods, which focus on words and phrases rather than arguments~ in this case my exegetical argument. 4, Villey is not the only one to point out that in Roman thought-—and I add, vestigially in Aquinas—this something owed is not necessarily beneficial (though usually itis), whereas in the modern concept ofa right, a rightis always (in principle} beneficial to its “subject” (holder). I made the same observation in Aqiuaias, pp. 133-34, and in Natural Law and Natural Rights, p. 209, NATURAL LAW AND NATURAL RIGHTS 409 sphere.” As evidence for this assertion he offers the “classic definition of H. L. A. Hart” according to which a right defines “a realm of sovereignty or of relatively completely free choice.” ‘Tierney fails to observe that Hart himself entirely abandoned this “definition” in relation to matters of justice, such as fundamental, human, or constitutional rights.’ In respect of such fundamental matters, as Hart acknowledged, it is more accurate to say that to have a right is to be the [potential] beneficiary of another’s duty. Indeed, the rights which head up modern declarations of “subjective rights,” such as the right to life and the right not to be tortured, do not delimit a “sphere of personal autonomy.” Nor does having such rights entail that one is free “to exercise the right or not exercise it as he or she chooses.” Even advocates arguing in court for suicide and euthanasia make little or no attempt to claim that the autonomy they are pleading for isentailed by the logic of the modern concept of “a right to.” Judges, lawyers, and contemporary legal theorists, thoroughly attuned to “modern thought,” know that rights are simply not constrained within the straightjacketed conceptual structure which Tierney, Villey, Strauss, Fortin et al. assert is “the modern concept of rights.” Tierney claims that in Summa Theologiae I-Il q. 122 “there is no reference to rights, implicit or otherwise” because “Aquinas was in fact commenting here on the second table of the Decalogue.” Indeed he was! He was arguing that “the precepts of the Decalogue are precepts of justice.” It follows rigorously from his definitions of justice (q. 58) and ius (q. 57) that the object of these Decalogal requirements, and of the virtue of justice needed to fulfil] them, is the ius that belongs to those others whom you would injure if you violated the commandment, and who accordingly, simply by being human beings, are entitled—it is their right—not to be so injured. Aquinas does not expressly articulate this entailment of his own definitions. That fact is of some 5. Natural Law and Natural Rights, pp. 205, 227 sets this out more fully, with

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