Emory University

Studies in Law and Religion

THE IDEA OF
General Editor
John Witte, Jr. NATURAL RIGHTS
Studies on Natural Rights,
Number l Natural Law, and Church Law
Theology of Law and Authority in the English Reformation
Joan Lockwood O'Donovan 1150-1625
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
Brian Tierney WILLIAM B. EERDMANS PUBLISHING COMPANY
Cornell University GRAND RAPIDS, MICHIGAN I CAMBRIDGE, U.K.

I
j
 I
CONTENTS

() 1997 Emory University A C KNOWLEDGMENTS . . . . . . . . . . . . . . . .. . . . . . . . . . . • . . . . . . . . ... ix

C ITATIONS ..... ... . . . . . . . . . . . . .. . . . . . . . . . . ... . . . . . . . . . .. . . xi
First published 1997 by Scholars Press for Emory University
INTRODUCTION
This editio n published 2001 by Wm. B. Eerdmans Publis hing Co. Modem Problems and Historical Approaches . ............. .. .. . 1
255 Jeffe rson Ave. S.E., Grand Rapids, Michigan 49503 I
P.O. Box 163, Cambridge C B3 9PU U.K. PART O NE
All rights reserved Origins

Printed in the United States o f America <.."tlAPTER I

Villey, Ockham and the Origin of Individual Rights . ... . . ....... . 13
05 04 03 02 01 7654321 Clas.~ical Roman I.Aw
Individual Rights and Natural I.Aw
Aquinas and the Canonists: lus and Lex
Library of Congre!l.'I Cataloging-in-Publication Data Ockham's "Revolution"
Objections to Villey
liemey, Brian.
Alternative Approaches
The idea o f natural rights: studies on natural rights, natu ral law,
and church law, 1150-1625 I by Brian Tierney. ' ·11A t'rER II
cm. - (Emo ry Univer.;ity studies in law and religion; no. 5) <lri>;ins of Natural Rights Language:
P· li•Jo.ts ;md Contexts, 1150 - 1250 ..... ..... ........ .. .. . ....... . 43
Includes bibliograph ical references.
ISBN 0-8028-4854-'0 (paper: a lk. paper) "1111' Q11estion of Origins
1. Natural law - History. I. litle. II. Series. Sc111m~ of Modern Rights l.Anguage
K445.T54 1997 t 111rc111is tir Rights l.Anguage-Contexts

340'. 112 - d c21 97-7386 < 11111111is lir R i,~l1ts lJ1nKuaKe-Texts

C IP N,.,.,1'""' N11t 11ra/ Rixht
I 11111 l11s1<111

I ll AI' I H < III

111,.,,111 ...mcl I >ut it•!i: f\ Quar.~tifl of l-lenry of G hl'nl . . . . . . . . . . . . . . . . . . . 78
/\ r•, ,_,,,,,.,.~ I lil1·111ma
c 111'111·" /111• olj .~It

-
 CONTENTS
CONTENTS vii
vi

PARTTwO CHArTERX
Ockham and The Franciscans Almain, Mair, Summenhart ... .. .......... . ........ . ..... . 236
Medieval Survivals
CHAPTER IV Mair. Rights and Needs
The Beginning of the Dispute .. . ..... . .. . ................ . 93 S11mmmhart. Varieties of Dominion
From Francis to Ockham A New Age
Approaches to Ockham CHAPTER XI
CHAPTERV
Aristotle and the American Indians ......................... . 255
Languages of Rights .... .. . . . . .. . ... .... . . .... ... .... . . . 104 Vitoria. Aquinas and Natural Rights
Hervaeus Natalis. lus and Potestas Vitoria. Rights and Indians
,Marsilius of Padua. lus and Lex I.As Casns. Indians and Rights
Willillm ofOckham. Ius Poli and lus Fori CHAPTER XII
Conclusion Rights, Community, and Sovereignty ............. . . . ... . .... . 288
CHAPTER VI Vitoria. Sovereignty and Divine Right
Property, Natural Right, and the Stat.e of Nature ............. . 131 Suarez. Sovereignty and Natural Rights
Problems of First Acquisition CHAPTER XIII
Civilillns, Canonists, and Theologians Grotius. From Medieval to Modem ... . . . . .. ... . . . . ...... .... . 316
Bonagratia of Bergamo and John XXII The Question of Modernity
Ockham on Property Natural Law and Natural Riglrts
CHAPTER VII The Right to Property
William of Ockham. Rights and Some Problems Individuals, Society, and Sovereignty
of Political Thought . . . ..... ............... . ... · ........ . 170 C ONCLUSION .. . .............. .... ....................... . . 343
Origins offurisdidicn BIBLIOGRAPHY ......... . .. . .. . ................ .... ........ . 349
Varieties of Natural Law
Absolutism and Natural Rights
A Rights~Based Political Theory?
CHAPTERVllJ
Postscript .......... ... . ........... . . . . . . . .. .... .. . . .. . 195

PART THREE
From Gerson To Grotius

CHAYrERlX
Gerson. Conciliarism, Corporatism, and Individualism . . . . . . . . . 207
Individual and Community
Tuck on Gerson
Rights and Conciliarism
Rights ond Reform
lus and Dominiu.m
 . . .. . .. . . •' .
•• , • ., , .,, . ,. f, •• • , . ,, •

ACKNOWLEDGMENTS

The author wishes to thank the publishers for permission to reprint, in

a revised form, material that originally appeared in the following sources:
"Villey, Ockharn, and the Origin of Natural Rights," in The Weightier
Matters of the Law. Essays on I.Aw and Religion, ed. John Witte Jr. and Frank S.
Alexander (Atlanta: Scholars Press, 1988), 1-31.
"Conciliarism, Corporatism, and Individualism. The Doctrine of Sub-
jective Rights in Gerson," Cristianesimo nella storia 9 (1988): 81-110.
"Marsilius on Rights," Journal of the History of Ideas 53 (1991): 3-17.
"Natural Rights in the Thirteenth Century. A Quaestio of Henry of
Ghent," Speculum 67 (1992): 58-68.
I also want to thank Coraleen Rooney for her skill and care in prepar-
ing successive drafts of the manuscript.
 ., '.,,•' . -.... •'' ·-. •' ... .
.
'. ' ' ., ' ·~
' •' • ''
~'

CANON LAW CITATIONS

Decretum Decretum Gratiani (ca. 1140). The Decretum was divided

into two main sections, Distinctiones and Causae. The
Causae were subdivided into Quaestiones. Texts of the
Deeretum are cited thus: Dist. 42 c.3 refers to the third
chapter of Distinctio 42. C.12. q.1 c.2 refers to the second
chapter of Quaestio 1 in Causa 12. Two s ubsections of the
Decretum, De consecratione and De penitentia were also
divided into Distinctiones. They are cited as De cons. and
De pen.
X Decretales Gregorii Papae IX (1234). This volume is re-
ferred to by the symbol ' X' because it was commonly
known as the Liber extra, that is, the book extra to or ad-
ditional to the Decretum. It is divided into books which
are s ubdiv ided into titles. Thus X.2.12.4 refers to Book 2,
Title 12, Chapter 4 of the Gregorian Decretals.
Sext. Liber Sextus Decretalium Bonifacii Papae VIII (1293). This
work is cited in the same way as the Gregorian Decre-
tals, e.g. Sext. 5.12.3.
Clem. Constitutiones Clementi Papae V (1317). Cited in the same
way as the Decretals and Uber sextus, e.g., Clem. 5.11.1.
r:Ytrav. /. XXII Constitutiones XX Joannis Papae XXII (ca. 1325). This col·
lection was divided into Titles and Chapters but not
into separate Books.
t:xlrr111. Com. Extravaganles Communes. A collection of decretals addl'd
to the previous volumes at the end of the medieval
period to complete the Corpus iuris ca11onici. It wa!I again
dividC'd into Hooks, Titles, and Chapters.
 o
, •-,
•
••,.•-<
• • '
..0 ., • I
0, , 1 ,
•
••
•
, . ,

INTRODUCTION:
MODERN PROBLEMS AND HISTORICAL APPROACHES

W hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain un-
alienable Rights. .. ." 1 But of course Jefferson's self-evident truths about
inalienable rights have not seemed evident to most of the human race
over most of recorded history. All civilized societies have cherished ideals
of justice and right order, but they have not normally expressed those
ideals in terms of individual natural rights-it would be hard, for in-
stance, to imagine a Confucian Hobbes or Locke. Moses gave Command-
ments to the children of Israel, not a code of rights. Plato and Aristotle saw
no need to appeal to a concept of natural rights in formulating their po-
li tical theories. Roman lawyers too were able to do without such rights in
crafting their complex legal system. In considering the origin of natural
rights theories we are faced with a historical problem, not a sort of re-
vealed truth.
When we address the problem of origins, we need also to bear in mind
some of the broader issues concerning human rights in the modem world.
Questions like these arise: Were the classical rights theorists of early mod-

I / )n·/nration c>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~.
<;uvt•rnmc>n1~ .ir'l' in.•li1utf.'d among Men. drriving th<'ir just powers fmm !ht> con!K'nl of th••
gnV•'n""'· ·n"'' wht•O<'vc·r any Fonn ,,f C~>vt'mmt•nt l>t-<-o ml'll dftltnl<'tivt• of tht'!'f' 1•mh1, It 1..
llw l<IKhl of tlw l'ruplc• tu Alh•r nr "hollNh It 11ml lt1 ln1<tll11tr m•w ( ;ovrmmc•nt . "
2 ntE IDEA OF NATIJRAL RIGHTS
em Europe merely articulating a doctrine that was implicit, if unacknowl-
edged, in all societies? Or is the whole idea of human rights peculiarly a
product of Western culture? And if the idea did have a distinctively West-
ern origin can it have any relevance for other peoples? Modem historians,
philosophers, and political scientists disagree about such matters.
A UNESCO document of 1949 referred to "the antiquity and broad ac-
ceptance of the conception of the rights of man," and suggested that the
discussion of such rights goes back to the beginnings of philosophy, in
both the East and the West.2 Few historians would agree with such a broad
judgment. Among contemporary philosophers, Alan Gewirth has argued
that all humans, simply as conscious agents, must logically claim certain
rights for themselves and recognize the same rights in others, specifically
rights to freedom and well-being. Gewirth also maintains that rights exist
in all societies even when there is no "dear or explicit recognition and
elucidation" of the concept of a right.3 At the other extreme Alisdair Mac-
Intyre, criticizing Gewirth's argument from the standpoint of Aristotelian
moral philosophy, dismissed natural rights as mere "fictions," an unfor-
tunate invention of modem liberal individualism that we should do well
to discard.' Arguing from yet another point of view as a political scientist,
Jack Donnelly acknowledges that the doctrine of natural rights had a dis-
tinctively Western origin in the "bourgeois revolution" of the seventeenth
and eighteenth centuries, but still maintains that the theory so engendered
has a universality that makes it generally applicable to all present-day
societies.5
The diversity of these opinions suggests that a historical account of
the evolution of natural rights theories might contribute something to
the modem debates. Historical inquiry cannot solve all the problems of
modem philosophers and political theorists, but it might help us to ad-
dress them in a more informed and sophisticated fashion. Donnelly's
2. Human Rights: Commmls and lnttrpmation.s. A Symposium olittd by UNESCO (New
York, 1949), 260.
3. A. Gewirth, &tison and Morality (Chicago, 1978), 99. For a more recent restatement of
these views, see Gewirth, •15 Cultural Pluralism Relevant to Moral Know ledger Social Phi·
losophy and Policy 11(1994): 22-43. Various criticisms of Gewirth's argument are presented in
E. Regis, ed., Gtwirtlr's EthiCJZl Rlltio1111/ism: Critic.al Essays With a Reply by Alan GtWirth (Chi-
cago, 1984).
4. A. Macintyre, Afttr Virtue. A Study in Moral Theory, 2nd ed. {Notre Dame, 1984), 70,
•Natural or human rights then are fictions...." Like Macintyre, I use the terms natural
rights and human rights interchangeably. 'The tenn "human rights" is often used nowadays
to indicate a lack of any necessary commitment to the philosophical and theological systems
formerly associated with the older term, "natural rights.• But the two concepts are essen·
tially the same. Human rights or natural rights are the rights that people have, not by virtue
of any particular role or status in society, but by virtue of their very humanity.
5. J. Donnelly, Uniutrsal Human Rights in Th~ry and Pracliu (lth111·ft, NY. l•JllCJ). AA 106.
INTRODUCTION 3
argument, based on a belief in the innate dignity of human persons, is
humane and sensible, but it could be grounded more securely on a differ-
ent kind of historical analysis. Macintyre has deplored "the deep Jack of
historical consciousness" that infects much of modem moral philosophy,
but he does not understand the history of the rights theories that he criti-
cizes. Gewirth's philosophical argument is sophisticated. and appealing,
but it leaves open all the questions that most concern a historian. When did
the idea of natural rights find "explicit recognition and elucidation"? What
historical context made such a development possible? How did the idea
come to survive once it had grown into existence? But when we tum to
the historians for enlightenment there is again no consensus. Kenneth
Minogue has asserted that the idea of human rights is "as modem as the
internal combustion engine." 6 Donnelly found a starting point in Locke.
An Italian writer has observed., with serene confidence, that scholars agree
unanimously on this one point: "The theory of natural rights is born with
Hobbes."7 Knud Haakonssen discussed the role of Grotius as an innovator.
Richard Tuck emphasized the contribution of Gerson. Michel Villey has
maintained., in a long series of publications, that the true "father of subjec-
tive rights" was the fourteenth-century Franciscan philosopher, William of
Ockham. Evidently there is room for some further historical clarification.
The historian's problem does not consist simply in determining when
an idea of natural rights as such emerged. There are many ancillary issues,
still matters of current debate, that call for further historical investigation.
One such issue concerns the scope of natural rights (assuming that they
exist at all) especially as regards "active rights" and "passive rights." All
meaningful assertions of rights make claims on other people; but the
claims can be of very different kinds. To assert an active right, a right actu-
ally to do something-to dig in my own garden for instance, or to worship
as I please-I need demand only forbearance from others. The assertion of
a passive right, sometimes called a right of recipi.e nce or welfare right, re-
quires that others render to me some good or service--free medical care
perhaps. Some modem scholars argue that the multiplication of social and
E>Conomic rights (or so-called rights) introduces an "artificial inflation" into
rights language that finally renders the whole concept of human rights
vague and valueless.8 Defenders of welfare rights insist that such rights are
<it least as essential to human well-being as a mere right to be left alone to
pursue one's own interests. On the level of historical discourse, Maurice
h. K. Minogue, "The History of the Idea of Human Rights," in~ Human Rights Rtadtr,
c'tl11. W. l.aqueur and B. Rubin (New York, 1979), 3-17 at 3.
7. N. Robhio, Thomas Hobbes and lht Natural Law Tradition, trans. D. Gobetti (Chicftgo,
l 11'1'.\), l!'i4.
K. /\ Fh•w, "Th<' l\rlifici11l lnf1Atiun of Nnturnl Ri~ht~.ff Vrra l_,;r 8 (1988): 4-6. l>unm•lly
1lrl1•111lc..I w1•1f"n' rightH in llnillf'rll#/ I/um"" Rixhl.•, :\I 4S.
4 THE IDEA OF NATURAL RIGHTS
Cranston argued that rights of recipience are a recent innovation, un-
known to the classical theorists of the seventeenth and eighteenth cen-
turies;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, how-
ever, 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 indi-
vidual 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 cen-
tury, wrote, "The new value is that of the individual." 12 Yet Tully has ar-
gued 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 be-
tween modem rights theories and the more ancient doctrines of natural
law and "classical natural right." Some scholars see natural rights as es-
sentially 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 associ-
ation 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 innova-
tor), 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
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.
lNTROOUCTION 5
explain some early modem texts, suggests that natural rights and natural
law are not derived one from the other but that both a.re derived as correl-
ative 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 lic-
itly 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 obvi-
ous 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 doc-
trines 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 specu-
l,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 through-
out 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
purposes.
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/<1$(1phy and the Mirror of Nature (and Beyond) (Oxford,
l'l'ICI). 2HI
6 THE IDEA Of NATIJRAL RIGHTS
rights by reflecting on the facts of human nature? Hume's argument seems
persuasive if we apply it only to external nature. Probably we cannot
deduce moral principles from studying the behavior of stones and stars
and waterfalls. But medieval rights theories typically did not start out
from cosmic nature and, when medieval thinkers reflected on the nature of
human beings, one fact they perceived-or thought they perceived-was
that human rationality included a capacity for moral discernment; and
from this fact it followed, for them, that humans ought to do what they
discerned to be right. Evidently this would not satisfy a modem Humean
critic. And of course medieval writers did not provide an answer to
Hume's argument; but this was because it did not arise for them; their way
of thinking elided it.
Although Hume's problem did not directly concern medieval authors
I have mentioned it here because it does have a relevance for a historian of
medieval thought. The argument about moral statements and factual ones
is often roughly paraphrased as, "You can' t get an ought from an is."
Philosophers have worried endlessly about the validity of this proposition.
But historians face a different kind of problem. We start out from an aware-
ness that there is an "is" standing behind every "ought"; our task is to
understand the "isness" within which certain kinds of "oughtness" can be
expected to flourish. That is to say, we are concerned to identify the his-
torical contexts within which certain moral values will be cherished and
certain related ideas, like the idea of natural rights, will seem appealing. I
do not mean that all morality is relative; only that moral thought does not
exist in a vacuum. In any given historical situation we can expect to find
some moral doctrines emphasized while others go unrecognized or ne-
glected. The story of natural rights must, therefore, be in part a story of the
environments within which such a concept could take root and flourish;
and to make the story intelligible we need especially to remember that a
historical environment is not constituted only by a play of contingent
events at some particular time and place, but also by the whole tradition of
thought and language that a society inherits from its past.
The studies that follow attempt to explore the early tradition of natural
rights thinking from which the doctrines of the modem world are ulti-
mately derived. They are presented as ventures into a terrain that has not
been very thoroughly explored in recent scholarship. We have a huge body
of work on present-day rights concepts-one author recently referred to a
"welter" of such theories. There also exists an abundant literature on the
classical rights doctrines of the seventeenth century; indeed it is hard to
keep up with the output of the Hobbes and Locke industry alone from
year to year. But, compared with this flood of work, there has been only a
thin trickle of writing on the idea of natural rights in the premodem era.
The field has not been entirely neglected of course. Scholars like Michel
INTRODUCTION 7
Villey and Richard Tuck have made important contributions to the discus-
sion of medieval rights theories; but it seems to me, for reasons that will be
considered later, that the arguments they have presented are not altogether
adequate or satisfying.16
Some of the chapters below were originally published as separate
articles and others were at first conceived of in the same way. (The long
section on the Franciscan poverty dispute was planned as a group of
separate essays to which I added a summarizing Postscript.) The published
articles have been rewritten so as to eliminate some of the repetition that
inevitably occurs when an author returns to the same theme again and
again. I hope that the reader will excuse such overlapping as remains. In
any case, it will be evident that these sections of the book were originally
composed as freestanding essays. In particular, the argument in several
chapters moves from medieval ideas to early modem ones and sometimes
to contemporary rights discourse. It would be more chronologically tidy,
I suppose, if all the modem material were presented at the end of the
book. But, in writing the separate articles, I wanted to illustrate the variety
of medieval source materials that we need to consider in order to under-
stand adequately the origins of modem rights theories. I also wanted to
show that, in medieval thought, there existed, not just some vague idea of
a natural right, but many of the specific themes that we encounter in mod-
l'm works on rights-a distinction between natural rights and positive
rights, rights considered as protected choices and as protected interests,
<1ctive rights and passive rights, alienable natural rights and inalienable
natural rights, adventitious rights, rights that were also duties.
Medieval thinkers did not categorize all these different kinds of rights,
argue about their relative value, and then choose some particular class
of rights to emphasize as most essential in the manner of many modem
rights theorists. But modem rights theorists argue in the way they do
only because the concepts they discuss were already present, and so avail-
able to them, in the tradition of discourse that the modem world inherited.
So, in often calling attention to parallels between medieval and modem
ideas, l was not intending just to make facile comparisons; I was hop-
ing to make the whole tradition of thought more intelligible. The po-
litical culture of the seventeenth century was evidently different from
that o f the thirteenth; but we cannot understand just how it was differ-
··nt, or how it became different, unless we first learn to know what the
••arly modem world inherited or reappropriated from the preceding me-
dit•val <'ra. We shall not fully understand how a culture of rights grew up
It.. ( >n Villt')' !'lt't' l>elo w, 13-42. For nilicism of Tuck st't' my luck on Rights: Soml' M<"-
•lll'v11I l'rnhh•11111." 111'.<ll".V 1if l'"lilin 1I 1111>11,'(hl 4 ( l'IKJ): 429- 41. /\nd Ill'<' l'>l'low, 217 20.
1711 7.4
8 THE IDEA OF NATURAL RIGHTS INTRODUCTION 9

in Western society until students of modem rights theories are willing to passed on to the modem world. Especially in the later chapters, the argu-
engage seriously with the considerable body of material that is being ment of the book is concerned both with the formalistic problem of how
made available-belatedly perhaps-by medievalists. the term ius nalurale came to be understood as meaning a natural right and
Among modem scholars, probably the most widely accepted account with the paradigmatic rights to liberty, property, and resistance to tyranny
of the origin of natural rights theories is the one presented by Michel that became central to the Western rights tradition.
Vtlley; he saw the modem idea of subjective rights as a revolutionary I hope that my chapters present an accurate account of the principal
innovation, inspired by the nominalist and voluntarist philosophy of stages in the growth of medieval natural rights theories, but I know that
William of Odcham. My book begins, therefore, with a critical study of they do not exhaust all the available material. There is room for further re-
Villey's thesis. The discussion then moves to the canonistic jurisprudence search in several areas. We need, for instance, more work on the concept
of the late twelfth century. Here, I argue, we can find an important shift of of rights in English common law, in the medieval glossators of Roman
language, a new understanding of the old term ius naturale as meaning a law, and in the late medieval jurists, both civilians and canonists. These
kind of subjective power or ability inhering in individuals, along with an latter writings often provided the immediate sources through which early
influential doctrine of permissive natural law. 1' The availability of this lan- modem authors had access to earlier medieval teachings. Apart from
guage, it is suggested, facilitated the growth of a new theory of natural studies on Aquinas and Ockham, there has been relatively little work on
rights alongside the old natural law teaching. The assimilation of the ju- the idea of rights in the writings of medieval philosophers and theolo-
rists' ideas into medieval philosophy, and their further development there, ~ians.18 Also, many sixteenth-century Spanish authors made significant
is first illustrated from the work of Henry of Ghent, who wrote interest- contributions besides the few that I have discussed. My book will serve a
ingly on the theme that every individual has a property right in his own useful purpose if it helps to stimulate more work in these fields.
person. The essays on the Franciscan poverty dispute reconsider the work
Clf Wil~ctm of Ockham in the context of the varied literature evoked by the
controversy. Ockham is presented in my work as an important figure
in the development of natural rights theories; but I argue that his char-
acteristic teachings were not derived from his nominalist and voluntarist
philosophy, but rather from a rationalist ethic applied to a body of juristic
doctrine available to him in the canon law collections that he knew well
and frequently cited. A chapter on Gerson treats the French theologian
within the context of the Conciliar movement for church reform. It dis-
cusses the coexistence in his work of an active concern for individual
rights with a profound sense of the church as a mystical body, a holistic
corporate community. The next part of the book deals with late medieval
scholastic thought where, for a time, the idea of natural rights seemed
to be losing its relevance to the real life problems of the age. Then I tum
to the impact of the European encounter with America on the growth of
natural rights theories. This chapter is also concerned with the fusion of
Thomist philosophy and juristic thought in the works of the sixteenth-
century Spanish scholastics. Their writings represent the final phase of the
medieval tradition of thought concerning natural rights and the relation-
ship between individual and community that Grotius inherited and
17. I have not included a chapter oo the rights theories of the great thirteenth-century IR. Whm this book was almost ready to go to pres.5 Dr. Annabel Brett very kindly let nw
canonists because this topk is thoroughly treated in the important a.rtide of Charles J. ....,. tht• lyJ>f'5<"ripl of her forthcoming work, liberty, Rixht 1ind Nalurt: T11t l.Jlni(uagt of lrrdi·
Reid, '1be Canonistic Contribution to the Western Rights Tradition: An Histo rical Inquiry," ''"'""' Ri,11hf,; i11 IJJlr r SC'/10/a.<lic Thouxhl. Dr. Brett pmvldes much valuable material on thl'
Boslcm Colltge l..tlw Rnriew 33 (1991): 37-92. Reid provides a detailed Hohfeldian analysis of 1·u1w1•pl of rl)lht~ In nw.lh•val phll1111ophk11l writings. I lt•r work caml' too latl• for ml' to makr
thirteenth-century rights concepts. ·"'Y 11111>111.mUal llM' nl ii, hut I h11vl' 1111.lt'C.i 11 frw 111111 mlnutt' l'l"ft'l'\'llCMI.
 ONE
•,
,. •' ... ... . .
~ ·.;.
,
-· - "-> ' . ' . ,, ' . ., ' •.- ••,,

VILLEY, 0CKHAM, AND

THE ORIGIN OF INDIVIDUAL RIGHTS

I[ n a long series of studies, published over a period of forty years,

Michel Villey has made notable contributions to our understanding
• 11 !.·gal history. His thought is always interesting, sometimes idiosyncra-
1w . I !ere I want to discuss only one particular aspect of Vtlley's work, his
,,, rnunt of the origin of Western rights theories.
The concept of individual subjective rights has become central to our
I'' •I itical discourse, but we still have no adequate account of the origin and
··.11 ly development of the idea. 1 The lack of such work leaves open one of
1I1•· t "t•ntral problems of modem debate-whether the idea of human rights
1·. ·a mwthing universal, common to all societies, or whether it is a distinc-
11 v1· , wation of Western culture, which emerged at some specific, identifi-
''"'•· point in European history. Villey quoted the eminent jurist Gabriel
I ,. llr.1s as saying that the idea of subjective rights goes back all the way
'" i\.t.1m and Eve; 2 but Villey himself maintains a very different point
• 11 v ww. I le is impatient with scholars who introduce modem ideas of sub-
1.., I 1v 1· ri~hts into their studies on " Roman law, medieval law, and even in

I A h1hlingrnphy of several hundred wo rks is presented in R. Martin and J. W. Nickt•I,

i\ llll•lluKr"phy om the Nature and Foundations of Rights 1947-1977.~ Political TI1rory,,
11•11111 l'I'\ 4 D . In !!pill' of its ll'ngth, the list i~ far from complete. For in!ltance, only on!'
111111111 l'"l"•r uf Villc•y i!' lndudf'd.
J I'' /11t111ttl1H11 dr In,,,.,,_
.,.(' j11ri1fiq11r '"'~lrmr, 4th t•tf (l'ari~. 1'17~). 226.

- 1:\ .
14 TKE IDEA OF NATURAL RIGHTS
their expositions of cuneiform law. " 3 For Villey the idea of subjective rights
appeared at a particular time and place and in response to a particular set
of circumstances. After some hesitation in his earlier papers, he defined the
occasion of its emergence in a group of studies published in the 1960s, and
has since adhered to the position presented there. His argument is set out
with clarity and force. The modern idea of subjective rights, Villey asserts,
is rooted in the nominalist philosophy of the fourteenth century, and it first
saw the light of day in the work of William of Ockham. Ockham inaugu-
rated a "semantic revolution" when he transformed the traditional idea of
objective natural right into a new theory of subjective natural rights. His
work marked a ''Copernican moment" in the history of the science of law.4
Villey's argument has been widely and uncritically accepted. Nowa-
days Ockham is often regarded as the originator of modem rights theories,
at least among scholars who seek an origin for them before the seventeenth
century. This is partly because of Vtlley's work, partly because some of the
ideas he uses were developed independently by other well-known schol-
ars. Villey is like Georges de Lagarde, for instance, in treating Ockham as
a radical innovator in rights theories, and like Leo Strauss in contrasting
an older Aristotelian doctrine of natural right with a newer theory of indi-
vidual subjective rights-much to the advantage of the former.5 (Respond-
ing to some German jurists who proposed as a slogan Zuruck zum Kant,
Villey offered as a counter slogan Zuriick zum Aristoteles.6 ) But Villey is un-
usual in the exceptionally far-ranging studies on ancient and medieval
jurisprudence which he presents as a foundation for his arguments. The
whole body of his historical work has never been subjected to a thorough-
3. "La g~ du droit subjectif chez Gillaume d 'Occam," Archroes dt philosophit dt droil 9
(1964): 97-127 at 102.
4. LAJonruztitm, 225, " . . . l'idtt du droit subjectif procede elle aussi du nominalisme et si
explicite avec Occamu; 261, "R~volution sbnantique a elle seule riche de consequences . . .
Nous sommes ici-meme au moment copemicien de l'histoire de la science du droit."
5. See Georges de Lagarde, LA naissanct dt I' tsprit lafque au die/in du moym agt, 5 vols. 2nd
ed. (Paris, 1956-70). (The fint edition was published in six volumes, 1934-46.) Leo Strauss,
Natural Right and History (Chicago, 1950). H. Rommen also presented Ockham as the initiator
of modem rights theories in "The Geneology of Natural Rights," Thought 29 (1954): 403-425.
Villey's view on Ockham as the originator of rights theories is widely accepted in current
American studies. See e.g., L. Dumont, Essays in Individualism (Chicago, 1986), 62- 66 and
Martin P. Golding. "The Concept ol Rights: A Historical Sketch" in B. Sandman ed., Biotlhics
and Human Righls (Boston, 1978), 44-49. Golding's discussion of Ockham here was based on
Vtlley. Others rely on Villey at second hand by citing Golding. see e.g .. the papers by J. R. Pen·
noc.k and Kurt Baier in J. R. Pennock and J. W. Chapman eds. Human Rights: Nomos XXll
(New York, 1981), 1-28, 201- 29. In similar fashion Isaiah Berlin cited Villey in his famo us
essay, "1Wo Concepts of Liberty," in Four Essirys on U11trty (Oxford, 1969); then A. [. Melden
cited both Berlin and Golding in his Rights in Moral Lives (Berkeley, 1988). For further refer-
ences see below, 118 n. SO.
6. See below n. 31 .
VtLLEY, 0cKHAM, AND TIIE ORIGIN OF lNDIVlDUAL RIGHTS 15
going appraisal. Yet any scholar who wants to work in this field has to
come to terms with his impressive synthesis.7
In the following discussion I shall describe and criticize the various
stages of Villey's argument as it developed down to the time of his de-
finitive work on Ockham and then, more constructively, indicate some
alternative approaches to the problems he has discusseci.8
CLASSICAL ROMAN LAW
Villey's distinction between ancient and modem thought about rights
was first developed in a series of studies on classical Roman law.9 A semi-
nal article of 1946 on the concept of ius started out from the observation
that some early modem jurists radically misrepresented classical jurispru-
dence as a system of individual rights.10 The seventeenth-century lawyer
Feltmann, for instance, organized his presentations of Roman law around
the categories of Rights in Persons, Rights in Things, and Rights to Things
( jura in persona, in rebus, and ad res). 11 But, Villey points out, there is no such
classification in classical law. The division of law presented by Gaius was
into Persons, Things, and Actions. The "Things" were again divided into
corporeal things and incorporeal things. These latter {res incorporales) were
7. Villey's ideas have been presented in many scattered articles and several works
of synthesis. Three volumes of collected essays have appeared, ~ d'histoire dt la phi-
losophit du droit (Paris, 1957); Sriu ~IS de philosophit du droit (Paris, 1969); CriliqUI! de hi pmsh
juridiq11t modern.t (douu autrrs essaisJ (Paris, 1969). Villey's other books (besides LA f ormation
cited above) include Lt droil ti les droits dt l'hommt (Paris, 1983) and Philosopliit du droil 1,
Definitiorrs ti fins du droit, 3rd ed. (Paris, 1982); 2, lLs mqytns du droil, 2nd ed. (Paris, 1984).
8. In ViHey's writings the same arguments are often reformulated with different nu-
a nces in successive publications. I have tried to select for comment a group of works that
illustrate the development of his thought from the 1940s to the present
9. Recherchts sur la lilUralure didactiqut du droil TOmllin (Paris, 1946); #Du sens de I' ex-
pression jus in re en droit romain dassique" in Mel11ngts Funand dt Visscher, D, Revue in-
lrrnationalt dts droits dt 1'11ntiquilt 2 (1949): 417-436; HSuum jus cuique tribuens,H in Studi in
1111ore di Pidro dt Fr11ncisci, 4 vols, 2 (Milan, 1956): 361- 371.
JO. " L'idtt du droit subjectif et Jes syst~mes juridiques romains," Revut historique de droit
/ri111r11is ti tlrangtr, Series 4, 24 (1946): 201-227. The outlin.e of ViUey's views on Roman law
>: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•><lbook of 1890. The author rendered Gaius' "De Personis" as " Equal Rights" and " De
l!t•h11s" as " Unequal Rights." See E. Poste, Elements of Rtmuin Law by Qiius (Oxford, 1890),
w xvi. By that time though, Hmry Sumner Maine was arguing that " the Romans had not
'1ll11inl'd, or had not fully attained, to the concept of a legal Right, which seems to us elemen·
' "' y • I Ji~"ll('rlations on Early l.11111 and Custom (New York. 1883), 365. The debate about the
11w1111lng or i11~ in Roman law goes back to the seventeenth century. Villey has an intereillng
,A.,.
.ft•• """Ion h1 .. urlKinl'fl tit• la nolion dl' droit !'ubje\'!if," Archiws dt phil~hit du droil 2
( t•l'tl ~>4): lf•°l IK7
16 THE IDEA OF NATIJRAL RIGHTS
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 in-
clude 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 fru-
endi). 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 situ-
ations that we should discuss in terms of rights, the concept of an in-
dividual 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 jus-
tice-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 indi-
vidual 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 individ-
ual. 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 con-
gruent 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 fru-
endi 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-
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
elaborate classillcations of rights, like that of Hohfeld, commonly encountered in the Anglo-
American literature.
13. ul 'idtt du droit subjeclif, w 217.
14. usuum jus cuique tribuere," 364.
IS. ul.'l.th,N 21Q. " l.n nrlgi~... 17.l. vm..y ....111mrtl to 111..... 111•1• ... K111111m law ( l\' l'r
111111ovrr11g•ln tn 1"1<'r wrlttng11.
VILLEY, 0CKHAM, AND TiiE ORIGIN OF INDIVIDUAL RIGHTS 17
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 consid-
eration. 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
1his:
Slaves are in the power (potestate) of their masters (dominorum) ... if the
ffuelly of the masters seems intolerable they are compelled to sell their
slaves ... for we ought not lo use our right (iure) badly. 21
II 1s h;ird not to see here an assertion of the subjective right of the master
• ••nsisting in his power over the slave who was under his dominium .
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."
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
V1l1..y hi m~lf.
1•1 Air urt>r nim/ifa, 45.13.15.
m I~ . I A'"'Y· W~I Rnman Vulgar l...llw (Philadelphia, 1951). 6.1. See also ibid., 26, 64-5.
11 I'. 1t1• 7.uhwla t'd .. Thi' fn$lilulr.i of C.aiu$ 1(Odord, 1946): 17 (ln~I. 1.5'2), " In pott',.l•ll'
11,.. ,,.,. 1<11111 ~..rut 1tominorum. .. . Si lnlolC'r11'1>ills 11h1C'11tur domlnornm ll1l<'Ultl111 roKimhrr
""' """ ""'"' .,,.,.,1,.n• mitlr rnlm n<•ln• luw 1111110111lrlll"mu" ··
18 THE IDEA OF NATURAL RIGHTS
As we are so often told nowadays, all language is context-dependent.zz A
legal term deployed in the cultural context of ancient Rome cannot have
exactly the same range of meanings as the same term used nowadays
(though the meanings may overlap). But one could make this same point
about the language of Ockham or Hobbes or Kant, and Villey does not
hesitate to attribute a modem idea of rights to such authors.23
The harshest criticism that could be made of Villey's treatment of
Roman law-it could apply also to his later discussion of Thomas
Aquinas-is that he selects a few suitable texts, drapes a whole theory of
law around them, and then refuses to take seriously any texts that do not fit
his preferred theory. Responding to such criticisms many years after his
original article appeared, Vtlley explained that, in discussing classical law,
he was not concerned with literary Latin or the language in common use. It
would be impossible, he concedes, to prove that the concept of subjective
right never existed at all at Rome. Villey even adds that such a negative en-
quiry would have little interest. The point is that in classical Roman law we
have a whole structure of language built around a set of concepts different
from the ones we often take for granted.24 (Although Villey does not write
in the jargon of modem French structuralism his whole mind-set seems to
be structuralist. For him-as for Saussure, as for Levi-Strauss-patterns of
relationship matter more than particular instances.) Put in this way Villey's
position is defensible. He was indeed making a valid point all along.
Roman jurists did not conceive of the legal order as essentially a structure
of individual rights in the manner of some modem ones.
Still, if we concede that, in some forms of discourse from classical
times onward, the word ius could mean a right, then the case for a "se-
mantic revolution" in the fourteenth century is apparently undermined.
Indeed, in some of his earlier work Vtlley seemed to favor a more gradual,
evolutionary approach. He often used the word glissement to indicate a
"sliding," a "shifting" in the meaning of the term ius that occurred over a
period of several centuries. A paper on the medieval glossators of Roman
law (first presented in 1947) is especially valuable for the substantial body
22. "L'idtt du droit subjectif," 225, "Les Romains s'interessent si peu ~ l'idee du droit
sub;ectif qu'ils n'ont pas mbne de ternie gblerique pour l'exprimer." See also HLes origines,"
170-173.
23. One may doubt, for instance, whether any author before the twentieth century used
the word Nright" with precisely the same range of connotations that one finds in the Unittd
N11tionl Univasiil CJedJlntion ofH1mum Rights. R. Tuck N11turlll Rights Theories: Thrir Origin 11nd
Dn:!elopmmt (Ctmbridge. 1979), 2. also raises the issue ol language as Htheory-dependentH in
considtting late Roman law but does not pursue the point in considering later texts.
24. "Travaux reants sur les droits de l'homme," Arr:hiva de philosophre du droit 26 (1981):
411- 418. ViUey presents a more nuanced discus.sion on ius in Roman law In l'hiltJIWl•ltil' du
droit, 1: 87-96.
VILLEY, 0cKHAM, AND THE ORIGIN OF INOfVIUUAL RIGHTS 19
of medieval texts collected in a long appendix.?$ Villey repeated here that
the idea of subjective right did not exist in classical law, but he found hints
of it in the law of the late Empire and a substantial development of the
concept in the writings of the medieval glossators.
In this paper, Villey was mainly concerned to argue that, before the
t•arly modem period, the technical term ius in re did not have the full sense
of modem property right, the droit reel of French law, a power over prop-
l'rty enforceable against all other persons. (He mentioned that the accusa-
tive form ius ad rem could mean a subjective right, 26 but did not explore
in detail the intricate development of the canonistic doctrine on ius ad rem
from 1200 onward.) The author makes his technical point about ius in re,
I hough to a reader more open to the idea of an earlier origin for modem
rights theories the "exceptional" texts he cites might seem more striking
than the ones that directly support his argument. Villey recognizes in this
paper that the medieval glossators created a new terminology. "new no-
tions and, in particular, new words designating subjective rights." They
tn•ated the Roman actio for instance as a subjective ius. But their analysis of
ri~hts was concerned mainly with the term dominium. They understood
tlw word in non-classical ways, so that dominium itself came to be regarded
.1s a ius. Setting out from the word dominium, Villey observes, the glos-
....1tors built a "grand echafaudage logique de notions de droit subjectifs."71
All this would again seem to suggest a pre-fourteenth-century origin
lor modem rights theories. But Villey resists this conclusion. The glos-
.... 11ors' work, he says, was full of hesitations and contradictions and
frustrated endeavors. A coherent jurisprudence of individual rights could
lw aea ted only in a later epoch, in a different climate of thought. In this
f'·•pl'r Villey associated the later emergence of such a jurisprudence
with " the cogito ergo sum of Descartes," "the psychological literature of
th1· s<.•venteenth century," and "Jesuit spirituality."211 At one point in the
1•.1per he described medieval Roman law as marking an era of transition
111 rights theories-suggesting a process of continuous development. But
.11 .mothe r point he asserted that the early modem jurists "broke with
111-.tury" and adopted "a new language."1'J The reason for this uneasiness
l wninws clearer in his later work.
."• • 1.,_. "jus in re' du dro il romain classique au droil modeme, in Confermas /ailt'!' 1\
H
I l11·.1r1111 rl1· /)roil Romain m 1947 (Paris, 1950), 187- 225.
,.,, lhi.t., 20'.l.
J"I lhi.t .• fQR -2<Xl. On subjective right and ius in Roman law set.' also If. Coing, ··zur
1 ...... hu hh· ,,,.,. llt·griffs ·suhjdcliv<'s Rt'<'ht"" in Cuing et al.. l'<is.• Dils sul•jrklitJI' Rr.-111 11111l 1ffr
11,·, /11.,. /111/'l. 1lrr t•a~111/icl1kril (Frankfurt am Milin, IQ5<J).
1
'" '""' . 1 10 'll.
·"' 11•111.. 704. I'll

20 THE IDEA OF NATIJRAL RIGHTS
INDIVIDUAL RIGHTS AND NATURAL RIGHT
An underlying reason for Villey's reluctance to acknowledge a con-
tinuity between medieval and early modem tho~ght~ even ":'h~n such
continuity was suggested by his own texts, was his pnor conviction that
major shifts in legal and political ideas could.occur only after an apprC:
priate pattern of thought had been created m the ~p~ere of pure P1:ll-
losophy. For Villey metaphysics always comes ~fore 1unsprudenc~. A~JS­
totelian thought provided a basis for the classical doctrine of objective
natural right; Ockham's nominalism made possible the early modem
theories of natural rights; and Kant's philosophy provided an immediate
source for the subjective rights of nineteenth century jurisprudence.
Villey's attitude is summed up in an early comment oi:' ~kham; "La Ph!-
losophie avait, comme ii est ordinaire, precede les 1unstes sur la v01e
revolutionnaire." 30
Villey explored these themes in many articles from the 1950s onward.
There was a certain broadening of conceptual horizons in his work. The
early papers on Roman law had treated ius as so~ething objective .but
only as a legal quality inhering in some external entity (as usufruct m1~ht
inhere in a fund us). In his subsequent work he was more concerned with
ius naturale as an objective right order in relationships between persons.
Similarly, when he wrote about subjective rights (or the lack of ~em),
he was at first concerned with legal rights, rights within an established
system of human law, specifically Roman law.. In later wo.rks the e~pha­
sis was more on natural rights, rights conceived of as inherent m the
human personality. In his " Abrege du droit naturel classique" (1961),
Villey wrote, "Subjective rights from their origin and still t~ay are con-
ceived of as natural rights."31 This emphasis helps to explain why Villey
could acknowledge that the word ius could vaguely mean a right from the
time of the late Roman Empire onward and still see a radical change in the
fourteenth century. What was lacking before then was the full idea of sub-
jective rights, rights inhering in the individual person as such.
The "Abrege" and the first edition of I.A formation written at about
the same time, provide a good introduction to Villey's understanding
of the contrast between classical natural right and modem individual
rights. These works also make clear his distaste for mode~ rights d~­
trines. Vtlley objects to the subjectivism of contemporary nghts theones.
He reacts with understandable irony to the vague catalogues of more or
less worthy aspirations that are nowadays presented as lists of "human
rights"-a "right to leisure," " to work," "to culture," "to health," " to mod-
30. hles origines, ~ 179. . . .
31. "Abreg~ du droit nature! classique," An:hivts dt f.h1l~h1t du dro_Jt 6 (196~:2:-n at
65. It was in this paper that Villey suggested the slogan Zuruck zum Anstntt'h•!I. lh1d .. 27.
VILLEY, 0CKHAM, AND TiiE ORIGIN OF INDIVIDUAL RIGHTS 21
esty" (invoked against "obscene" films).» But Villey is not content to criti-
cize abuses. Rather, he presents the whole modem attempt to base a
system of jurisprudence on an affirmation of individual rights as funda-
mentally misguided. He describes this modem enterprise as Utopian,
.irbitrary and sterile. It is Utopian because the supposed absolute rights are
fictions; they usually do not exist in actual law or in real life. Rights theo-
ries are arbitrary because the rights claimed are ultimately based on
subjective whim; they lead on to a debased understanding of justice as
"nothing but a label you attach to your own subjective preferences." And
modem rights theories are sterile because they cannot form the basis of
.1 coherent jurisprudence.33 The rights that people assert conflict with one
.mother. Juridical thought begins at the point where one considers the
situations that arise as a consequence of this reality. The task of the jurist is
In establish just relationships among persons and between persons and
1•roperty-not to affirm absolute rights, but to determine what is objec-
t ivcly right. Villey does not disdain the values inherent in modem West-
1·rn society insofar as they reflect a concern for the human personality,
hut he thinks those values could be better defended, "in another, more
1· ....1ct language," by an appeal to the classical tradition of natural right.34
Ill' associates that tradition especially with Aristotle, with the jurispru-
.1..nce of classical lawyers who took for granted Aristotelian ways of think-
111.v and with the philosophy of Thomas Aquinas who remained faithful
lo Aristotelian principles. We need to explore a little further Villey's un-
.l1·rstanding of this tradition before we can consider his attitude to Ock-
h.un and later rights theorists.
A key-word for Villey is Aristotle's dikaion-the just-usually ren-
·••·n.·d into Latin as ius. Aristotle understood the term in two senses,
""it her of them equivalent to the modem idea of a subjective right. He dis-
1111~uished between justice as a moral virtue and justice as an objectively
r 1ght state of affairs in a particular context, something inherent in the
11.1l11re of a situation, or "in the nature of the case," we might say. It is this
....nllld meaning that especially concerns the jurist. Indeed, by defining
11 , Aristotle provided the foundation for a whole philosophy of law, ac-
' 11rding to Villey.35 In Aristotle's philosophy the universe was a cosmos,
I/ lhiJ., 65. It is as well perhaps that Villey never came upon the work of Nan Berger,
'' ·~''" A I lantfl>ook for Ptople Unitn Age (Harmondsworth, 1974). There he could have found,
1..... t.t tu h is list o f unlikely rights, a ~right to sunshine," "to a tobacco-free job," and " to a
11 lhi<I., 42 - 0 , 46-47, 68-69.
... lhitl., 66.
1·-. S.•1•, l'.)I, . .. lkntham <•t le dmit nature! cl11s~iquc-," Archiurs dr 11hifo~1ph ir d11 dmit 17
11'1'/'/) '11'.l ~I "' 411. l\ft..r t' llplnining l\ri!llolll''!I dl11tlnMlon, Vllll'y n•mment<•d , "Vollll qui
••I t•nur 11om1 Ir to111lt•nwnl ,f' mw philt11mphit• 11t• tlmll " Vilk•y'" umlt•rfttllntllng nf d 111u1k11I
22 THE lDEA OF NATURAL RIGHTS
informed by a logos which gave it order and harmony and purpose. So too
human society could display a proper harmony and balance, a structure
of right relationships. The objective sense of ius was well expressed in En-
glish by John Finnis-he defined it as "what's fair."36 For Villey ius most
often means fair sharing, juste partage.
Villey insists-against both Hume and Kant in their different ways-
that ius, what is right, can be ascertained from observation of external
nature.37 He cites, for instance, an argument from Aristotle and Thomas
Aquinas. We can learn from observation that human children, unlike the
young of many other species, need a long period of nurture and educa-
tion; whence one can conclude that stable marriage between parents is a
naturally right relationship.38 Given this approach, Villey points out, it is
not surprising that, when Aristotle or Aquinas sought to define dikaion or
ius, they did not proclaim the rights and powers of individuals. They were
concerned rather with a harmonious structure of relationships, right pro-
portion, juste partage.
AQUINAS AND THE CANONISTS: IUS AND LEX
So far we have been concerned mainly with a distinction between
ius as a subjective right and ius as a system of objectively right relation-
ships. rn discussing Aristotle and Aquinas in La formation, Villey devel-
oped another distinction, which became of central importance in his
subsequent work. This was a distinction between ius understood as an ob-
jectively right relationship ("What's fair," juste partage), and ills understood
as moral or legal precept, as law binding on individuals, and so equivalent
to lex.Y*
natural right explained in the paragraph above is found in many of his works, including
''Les origjnes" and "Abrege." It was given a systematic presentation in lA formation, 36- 47,
in Philosophit du droit, l, and most recently in Le drJil •.; /cs droits.
36. John Finnis, Natural Liiw and Natural Rights (Oxford, 1980), 206.
37. The influence of Kant was especiaJly emphasized (and deplored) in "Abrege." For a
typical comment on Hume see "Bentham et le droit nature) classique," 429. ln criticizing
Villey, Finnis referred to Hume's law about the impossibility of deriving a moral proposition
from factual observation which had, he wrote, "impressed . .. the whole modem anglo-
saxon world." In response Villey referred to".. . la Joi de Hume, si contestable et contestee,
~ tout le moins sur le continent."
38. lAJormation, 126-128.
39. Ibid ., 127: " .. . la loi morale n'est pas le droit." Among later studies see especially
"Tol'"ah-Dikaion I" and "Dikaion-Torah [(" in Critique dt la pctsl.t juridiqul' modtrnt, l'l- 50.
The argument is summarized in Philosphit du droit, 1, 101- 112. Finni~ rnmplained that
" Villey's treatment of ius is marred by an exaggerated di~tinction betw('('ll iu~ and /a .. .
which leads him to misplaced distinctions betwc-en law and mor11lltv " N.1lrnnl l.nw nnif
Natural Rights, 228.
VILLEY, OcKHAM, AND rnE ORIGIN OF rNOIVIDUAl RIGHTS 23
According to Villey, the first, properly classical meaning was lost, or
compromised, in the writings of the Christian Church Fathers. In translat-
ing and commenting on the Bible they used the term ius to mean divine
commands, so that, for instance, the Decalogue could be called ius divinum
or ius naturale. Then this usage was continued by the medieval canonists.
I fence, in the first words of Gratian's Decreturn (c. 1140), we find ius natu-
mle defined as the Biblical Golden Rule, "by which we are commanded to
do unto others what we would have them do unto us... ." This develop-
ment is important for our general theme concerning the origin of rights
theories because, in Villey's view, the classical idea of ius was undermined
hy this Christian understanding of the term before the final (disastrous)
misinterpretation occurred in the fourteenth century, when ius came to be
•q~arded as an individual power or subjective right.
Villey argued that Aquinas avoided both errors-the interpretation of
111s as either subjective right or prescriptive law. He thought that one of the
r.n·at ach ievements of the Dominican master was to restore for a time the
"hjcctive, classical meaning of ius (a meaning that would be lost again by
< lckham and the nominalists). Following the Roman lawyers, Aquinas de-
l11wd ills as quod iustum est, what is just, and again as ipsarn rem iustam, the
rust thing itself.40 For Aquinas, as for Aristotle, as for Gaius and Ulpian, ills
w.1.s still primarily a "thing" (rem), something existing in external nature.
Allt•r his primary definition Thomas gave several derivative meanings of
"'" but they still did not include any subjective definition of the word. Ac-
' ording to Villey no such meaning was known to him.41 Here Villey seems
tn h.we somewhat overstated his case. When Aquinas was writing unre-
tl1·dively and following the common practice of his age, he did use the
word ius in a subjective sense in phrases like ius dominii (2.2ae.62.1), ius
f''";sidmdi (2.2ae.66.5), ius praelationis (2.2ae.69.1). Yet it remains true that he
.l1·vt•loped no explicit doctrine of subjective rights or natural rights. For
I hnrnas, Villey argued, ius naturale was not a power inhering in individu-
.1 I·. or a body of moral precepts but a method, a way of interpreting reality,
,.,.,." .m "experimental method." 42 (Perhaps Villey had in mind the sec-
111111.iry definition of ius given by Thomas, "The art by which it is known
w h .11 is jus t.")
·111is ll•d Villey to a further point. What is naturally right can change.
1111 1111.is dearly insisted on a need for changes in positive human law, and
\ "dlc·y duly <'mphasizes this. But he goes further. He holds also that, for
I ht1111.1s, i rts 1111t11mle too could change because human beings change-·
·Ill .. Ahr•'gcl," :ll , r('f('rring to S11mma lhrologiar, 2.2ac57.1.
.f I 11 M . I lt·rin~ ar~ut>d that Aquinas did have a cOOC'ept of :iuhjt"Ctive rig}ll!I, " De iun-
•11l•1•·• ltv11 ~"'"I''" .1p11<I !'.1nctum Th11mnm," A11x1·/icu111 16 (tc139): 29~ -117. Villt•ytlt•nlt>d thi.•
111 I '' ~1·111'!1<·:· 111 n I
~ J •• /\l1tc'X1'." •;c1. In f.•rrm1lim1. '>II, 171• ··1,. tln1it ni1h1n•l 1•,.l 111w mc'tlu1th• 1•"1it'ri11wnlt1lr "
24 TuE IDEA OF NATIJRAL RIGHTS
"natura hominis mutabilis est," Thomas wrote in the Summa theologiae.
Villey observes that justice is a problem which always poses itseU in new
terms and calls for new solutions as circumstances change. What is natu-
rally right-a fair pattern of relationships-will be different in different
times and places, not the same, let us say, in a primitive agrarian society
as in an advanced commercial one. Villey admires especially the supple-
ness and flexibility of Thomas's ius naturale. It is a vision open to change,
open to progress.u
Vtlley was supplying a corrective to modem neo-Thomist doctrines
which interpret Aquinas's ius naturale too rigidly, and so far his argument
may seem persuasive even if it is sometimes expressed incautiously. But
the emphasis on a mutable ius naturale led to a thicket of difficulties when
Villey turned to the other meaning of ius that he discussed, the canonistic
understanding of ius as moral precept or divine command. The problem
here is that Thomas (following St. Paul) certainly believed in an immutable
lex naturalis, an unchanging moral law inscribed in the hearts and minds of
men. Villey had to insist therefore that, for Thomas, the meanings of ius
and lex were quite different.44 And here the problems begin. Thomas did
indeed distinguish between the two terms in his definition of ius at Summa
theol. 2.2ae.57.1. But he followed this at once in the next article with a sen-
tence in which the terms seem equated with one another, and elsewhere in
the Summa he used them interchangeably. Villey insists, in effect, that only
the first definition counts. He adds that, where there is an appearance of
confusion, it is because Thomas is not using his own language to express
his own thought but quoting the language of the canonists, specifically the
terminology of Isidore of Seville incorporated in Gratian's Decretum, a ter-
minology that reflected a "decadent syncretism between Biblical culture
and the language of the Roman jurists." Of course there is no trace of such
an attitude in Thomas himself. He treated Isidore's texts, like other pas-
sages of canon law, as respected authorities. (At one point, in response to
an objection, he wrote simply, "The authority of Isidore suffices.")45 More-
"3. u Abrege," n 35, #La justice, c'est un problme qui se pose sous des termes nou-
veaux . . ." 50-51, N(La) vision du juste est relative, ouverte au progres.. .." Similarly l..ll
formation, 129-131.
44. For further discussion see " Bible et philosophie greco-romaine de Saint Thomas au
droit moderne," ArchitJeS dt philosophit du droit 18 (1973): Xl-'57 and, most recently. G. Kali·
nowsld and M. Villey, "La mobilite du droit nature) chez Aristote et Thomas d ' Aquin,"
Archivrs dt pltilosoplrit d11 droit 29 (1984): 187-199. Villey might have made a better argument
by emphasi.iing that, for Thomas, ltx noturalis as well as ius naturale was a flexible con·
cept that had to be applied differently in different circumstances. See Summa tltml.• J.2ae.9S.2,
" ... principia communia legjs naturae non eodem modo applicarl possunt omnlbu10, proptcr
multam varietatem rerum humanarum."
45. For Villey on udecadent syncretism" !1tt " Benthftm t•t 11• Jmtt 111thm•I dn1111lq11l'," 429.
Cf. Summa lhtol.• 1.94.4, " In contrarium anctoritu laldorl 1rnftldat •·
VII.LEY, 0cKHAM, AND THE ORIGIN OF I N DIV IDUAL RIG HTS 25
over, on one occasion where Thomas equated ius and lex, it was Aristotle
not Isidore who provided the starting point of the discussion. 46
It seems, then, that Villey's case for a consistent distinction between
1/roit nat11rel and loi nature/le in Thomas cannot be sustained. In different
• ontexts, Thomas presented Aristotle' s doctrine of natural right and his
own doctrine of natural law, sometimes using the word ius to express both
lt·achings. If he had consistently used ius naturale for the first doctrine and
l1·r nnturalis for the second the task of modern commentators might have
hl·en easier. But in fact Thomas followed the common usage of his age in
which i11s and lex could sometimes be used interchangeably and some-
111nes differentiated from one another in their more specialized meanings.
< >nc has only to consult a concordance to see that Thomas used the word
,,,.., (not to mention naturalis) in several different senses without always ex-
,.1.1ining carefully the various meanings intended in different contexts.47
We might expect to find this situation in such a long and far-ranging
work as the S11mma lheologiae, which drew on sources as diverse as Aris-
'' •I ll·'s Ethics and Gratian's Decretum. But Villey's treatment of the relation-
·.lup between Aquinas and the canonists in their understanding of ius and
In is significant for his whole argument. Especially in his more recent
work he has emphasized a conflict-a duel he says- between the classical
·"'" Thomist concept of ius (equivalent to Aristotle's dikaion in its objective
·.1·11se) and the Judea-Christian concept of ius {equivalent to lex or Torah).
111 I.Kt, however, the two concepts have coexisted in a reasonably harmo-
1111111s fashion since classical times. In Roman law ius meant not only ob-
,,., liv e right order but also a body of legal or moral precepts, as in ius civile
.1111 I i11s ~entium. Similarly the canonists emphasized the meaning of ius as
"'' 11-.ll precept, equivalent to lex, but they did not lack the meaning of ob-
1•·1llw right order. (To anyone familiar with their work, the idea that the
• .11111nists were not interested in right order in the world will seem star-
t liug.) Villey complains that, in the treatise on law that forms the opening
.,.., hon of Gratian's Decretum, there is no understanding of justice in the
• 111•·1 livc sense-as just distribution, juste partage, ius suum cuique tribuerr.
1
11111 this precise meaning is presented in the first paragraph of the Ordinary
• ./,,.•.. to the Decretals, a work studied in every canon law school of mc-
· ' •··v.11 Europe. "(H]aving read and understood (these decretals) we may
I r. •,,,,,,,,,,, lhro/., 1.9!i.2. Thomas argued that human law was de rived from natural l.1w
" " ' 11t.·11 p os.•tl .,.., an objt'Ction that natural law was invariable: "'Praete rea lex natur.w 1•111
• ~. 1,..,. ·•r11.t omn('!';; d icit l'nim Philosophus quod 'naturale 1us est quod ubique h.,h.•t
•' ~"'' ''""' puh•nti.im"" (e mphasis added). The objection has no point unl~'I Thomas Will! .111·
• m 11111p, lh11t Aristotlt>'11 iu:o meant thE' same as his own ltx. (He did not d istingui11h bt>tw1'f'11
11 ... l wn womt~ In hi" n·ply tu lhl' c>hj<-rtion.)
ii •.,.,. I{ lh•M. •"<L, /111/n 'l111•mi, lirn.<. Srcl1tt II. I '1111( 11r1l1mlit1 1•rior11, 2:l vnl11. (Stuttic.nt,
l ' I ' i ; rt). 11 t;114 1 111
26 TuE IDEA OF NATIJRAI.. RIGHTS
know how to discern between equity and iniquity, and to render to each
his own, and in this justice consists."48
A less selective reading of the texts would show that the two meanings
of ius that Villey contrasts-treating one as truly classical, the other as
a sort of Christian aberration-actually existed harmoniously, side by
side, in classical philosophy, in Roman law, in medieval jurisprudence, in
Thomas Aquinas, and in many later natural law philosophers. Moreover,
they could coexist in this fashion without undue strain because the two
meanings are complementary rather than contradictory. If we observe that
it is proper for children to respect their parents, that is an example of an ob-
jectively right relationship (dikaion, ius). If we say, "Honor thy father and
thy mother," that is a precept of natural law (which Gratian would also call
ius). But we are affirming the same principle in each formulation. Both
meanings of ius retain the underlying sense of rightness or fairness. A
judge cannot establish ius (an objectively right relationship, a juste parlage)
unless he has a ius (a law or moral precept) to guide his sense of what is
considered fair in such a case. We shaU have to consider later on how these
two meanings of ius relate to the third one, of particular interest to us, ius
considered as subjective right.
Aquinas's use of canon law also raises another problem of central im-
portance for Villey's argument, the relation between philosophical and
legal thought. Villey maintained that the development of Thomas's philos-
ophy of law was a prerequisite for the justification of new legislative
activity in the church.49 Thomas envisaged a law open to change and adap-
tation; but Gratian's Decretum, Villey says, did not acknowledge a creative
legislative function of the ruler. After the philosophical work of Aquinas,
however, papal decretals would no longer present themselves merely as
judicial decisions or interpretations of a pre-existing law considered per-
manently valid, but as deliberately creative of new law. Vtlley points out
that Boniface VIIl made this assertion in his Preface to the Liber Sextus, pro-
mulgated in 1298, a quarter century after the death of Aquinas.
But the phrase Boniface actually used to justify new legislation was
"humane nature, novas semper deproperans edere formas, lites quoti-
die invenire conatur...." Villey has overlooked the fact that Honorius
Ill closely paraphrased the same text-it is originally from the Code of
Justinian-in the letter introducing his decretal collection of 1226,50 and
48. Villey, Critiqut, 33. Bernard.us Parmensis, Glossa ordinaria ad Dtcrtlalts, Protmium in
Dtcmalts D.Grtgorii Papae IX (Lyons, 1624), 2.
49. LA Jormlltion, 121, "II fallait qu' une thoologie et une philosophie nouvelles juslifi·
assent le changement de droit." See also ibid ., 133, 174 and uSaint Thomas dans l'h istoire des
sources," in Etuda d' histoire du droit canoniqut d~iks d Gabritl le Bras, 2 vols. (Paris, 1965)
1:355-395.
SO. E. Friedberg, Quinqut compilationts 11ntiq1111t (Leipzig, 1882). 152. On th1• cnnonll'lli<-11111•
o f this language see G. Post, Studies in Mtditi1al IL!{al Tho11Rhl (l'rinl"t'ton, IW'4), ~14.
VILl..£Y, 0CKHAM, AND THE ORIGIN OF INDlvrDUAL RIGHTS 27
that it was incorporated in Jacobus de Albenga's commentary on this
collection written shortly afterward and also in the Ordinary Gloss to the
I >ecretals of Gregory IX (also before Thomas). The canonists did not need
In wait for Thomas to tell them that popes could legislate. For more than
.1century they had been insisting on the papal ius condendi canones. What
.1dually happened is more subtle and more interesting. Thomas did not
mvent a new theory of legislation. He assimilated the existing doctrine of
,·ontemporary Roman and canon lawyers, and associated it with his own
lt·achings on ius naturale and lex naluralis. Then, in tum, Thomas's doctrine
•,f natural law began to react back on the teachings of the academic canon-
1<.ts. (The first time I have found it mentioned in a formal canonistic com-
111mtary is in the Rosarium of Guido de Baisio from ca. 1300.) The process
w p have to deal with is not simply one of philosophy influencing law but
1.1ther of a constant interplay between the two disciplines. It will be useful
10 keep this in mind as we tum to Ockham.
I It 'KHAM ' S "REVOLUTION"
After mentioning William of Ockham in several of his earlier papers,
V1ll<·y gave a detailed systematic presentation of his argument that Ock-
lt.1111 was the inaugurator of modem rights theories in an article first
1'11hlished in 1964.5' He began by referring again to the abuses of modem
••1-.hts theories. Then Villey gave two reasons for the rise of such doctrines.
1lw first was simple egotism, the inclination of each person to think of
· ·v .. rything in terms of his own self-interest. But since this moral defect is a
• •11nmon human failing it does not in itself explain why the "deviation of
l.111.\11age" introduced by theories of individual rights has found wide ac-
. ··1•t;mce among philosophers of law only since the early modem period.
Another influence was needed. And so here again Villey emphasized
ti 11· impact of Christianity-not Christian morality as such but a deformed
,.,·rs1on of Christian ideas (idees chretiennes mais deformies).51 Christianity
.dw.1ys recognized the supreme value of the individual soul and, in the
· lu1-.h•r, individual mysticism was cultivated as the highest form of life.
1 lu- mischief arose when these religious attitudes were transplanted to the
.•lic·11 h·rrain of law. The Franciscan Order was the group that brought
·'''""' this change and, among the Franciscans, William of Ockham wa~
· ·1·•·· 1.1lly rl•sponsible for it. "The cradle of subjective right was the Fran-
"' ··1., gt'fWs<o." This article is based on material o riginally included in Villey's Cours
.11,,.,..,,r 1lr l111•hilosophit d11 droit of 1963. (See Stiu tsSais, 141.) The Cours was subsequt'ntly
1"•l•ll"l11•cl l11 IQNI ai; I .n formation dt la prnslr juridiqut modtrnt. Cours d'hisloirt dt la phil050phi'
.i.. ' '""'· 1%1 l 'lbh. Om pap;t' l't'fclt'Tlret1 M'E' to the revised edition of this work publisht'd in
1•1 · 'l (1 11c-.I 11hov1• 11. 2). (I hllVI' qunlC'd l.n formnli"'' in th«' following dil'C'U1<1ti.-•n whl'n II con·
1,.'"" •IK11Ulumt phrn"4'11 nol indml1'\I in " l;t p;rn/I~•. ")
'l) ··1"Krill-...-." 11 1Y/
28 THE IDEA OF NATURAL RIG HTS
ciscan Order-William of Ockham, founder of nominalism, an individual-
ist philosophy . . . enemy of the pope and convicted of heresy according to
many, may be called the father of subjective rights."SJ
Before turning to Ockham, Villey develops in this paper some of his
earlier ideas in order to contrast the newly emerging idea of subjective
right with the older, sounder doctrine. A subjective right, he says, is some-
thing that subiacet, that underlies or is inherent in a person. It is a quality of
the subject, a faculty, a liberty, an ability to act. In a word, "subjective right
is a power of the individual." 54 This concept he reminds us, was alien to the
thought of Aristotle or Ulpian or Aquinas. For them (in Villey' s interpreta-
tion) dikaion or ius meant primarily something objective--what is just. It
could not mean a subjective power. Rather, right was something that lim-
ited power.ss Hence the modem concept has combined two ideas that were
formerly distinct-right and power. It is precisely in the juncture of these
two concepts-ius and potestas-that Villey will find Ockham most in-
novative; for, he asserts, the doctrine of classical natural right necessarily
excluded the modem idea of subjective rights. "The notion of subjective
right is logically incompatible with classical natural right."56
Villey acknowledges that, in vulgar usage, even in ancient Rome,
some people may have treated the word ius as a term defining their in-
dividual rights-after all they had their share of egotism too. But the glis-
sement, the shift in meaning, became much more evident in the practical
life of the Middle Ages. After the downfall of Rome no work of creative
jurisprudence was produced for several centuries. The Roman juridical
order was forgotten. An antijuridical attitude (conception antijuridique)
prevailed. In this juridical void people everywhere began to insist on their
" rights"-rights of emperors against popes, rights of kings against sub-
jects, rights of this or that group or class of individuals-and they tended
to confuse rights with actual powers.57
Here again, as in the paper of 1947 discussed above, Villey seems to
be proposing an early medieval origin for theories of subjective rights. But
his central argument is quite different. He insists that the shift in meaning
of the word ius was confined to vulgar usage. We cannot define with cer-
tainty what ius meant to people who themselves were not using the word
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,
N • 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 mr-
d ieval people who first built a Christian civili7.ation in W<>!>lc•m f.urop•· "" " le• J~plnit•m..nt
d~rd<'~ntt dt> I' initiative individut'lle."
VILLEY, 0cKHAM, AND THE ORIGIN O F [NOIVIDUAL R IGHTS 29
with any philosophic precision, and so there is no basis for holding that
tht• term had acquired the full meaning of subjective right before the
t1111rteenth century. The important point for Villey is that we do not
hnd the subjective meaning in formal academic discourse. The glossators
••I Roman law and Thomas Aquinas drew up lists of definitions of the
word ius but they did not include the meaning of "power" or any subjec-
t 1vt> sense of the word.58 For this meaning to be defined and integrated
11110 a system of jurisprudence a new philosophy was needed. William of
1> ckham would provide it.59
In approaching Ockham's thought, Villey first sketches in the dispute
••v•·r Franciscan poverty that led to Ockham's polemical writings from the
I l20s onward. (His work in formal Iogk and philosophy had been accom-
l'lished earlier during his years at Oxford.) The Franciscans had come to
••·.ich that, in observing perfect poverty, Christ and the apostles had re-
111umced all property and all right of use in exterior things. But Pope John
\ \ 11 denounced this whole position in 1323. He declared that henceforth
o1 would be heresy to hold that Christ and the apostles had no right of
11·.1· in the things they actually did use. Ockham's response to this was, for
V1lll'y, " the decisive moment in the history of subjective right."60 Ockham
w. 1s no t a jurist by training, but he was obliged by the nature of the con-
l111v<•rsy to give definitions of legal terms like dominium, ususfructus, ius
11trntli. The distinctive quality of Ockham's definitions, Villey suggests,
,., 1h;1t in them " the concept of right is reso lutely twisted to the meaning
••I 1•0111cr. ""1 For Ockham ius meant potestas. More specifically, a right for
111111 was a " licit power"-"ius utendi est potestas licita utendi re extrin-
...., ,, " Villey sees these definitions as striking innovations. Ockham, he
··.iv-;. was the first to conceive of subjective right, the first to sanction the
• 111111111ction of right and power. His language might perhaps have been
"">~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
'•II ll•1e l . I07, 111. Actually Aw did give polestas as o ne meaning of i11s b ut only in rt'l,1·
11. " ' 1. • 11 ... p hral'(' 5 11j i11ri5 ~·e (#Origines," 271).
'•'' r" fmmntirm , 239. Pour . . . q'il soit dtHini, integre dans un systeme de pen~· j11-
• •.1 1. 11u· 11111d1•rnc>, ii nc faut pas moins que le concours d ' une philosophie .. . jt' pen!W q1w
• • • • • ••· t ;,,,11..11me .t'<ln :am quc d 0ttt> le toumant deci!>if."
1 ~1 '"I . t );•"tu'st•." I lJ.
1.1 lhu I . 117, "Elle~ nffn•nl <'t'llt• parlil'lllMilr . .. simplt•mt•nl '-l"t' l.1 no tion dc• clroit 11' y
h• ""*'~ .,...., •h1nu•nl ,,,,,., nu 1'-t·n~ dr• l"'.'""''ir···
' •·' ll•hl . 1111 1111
30 THE IDEA Of NATIJltAL RIGKT'S
individual had real existence; hence there could be no juridical order that
did not proceed from the individual will, and no conception of a supra-
individual social order.63
Villey concludes with a discussion of Ockham's Breviloqium.64 He pre-
sents it as a treatise on pure power which leaves no room for any con-
ception of objective right. At the summit is the absolute power of God. In
tum God confers powers on men, primarily a power of appropriating ex-
ternal goods (after the Fall) and a power of instituting rulers. The ruler
then has the power of legislation ( potestas condendi leges). From human
laws come dominium, usufruct, right of use-subjective rights guaranteed
by state authority. The rights are all absolute. They can be exercised or
renounced at will. And there is nothing else. The subjective rights of indi-
viduals have filled the void left by the loss of objective natural right.65
So the argument reaches its conclusion. Ockham has achieved his "se-
mantic revolution." "It is the whole philosophy professed by Ockham . . .
that is the mother of subjective right."66
OBJECTIONS TO VILLEY
As I have suggested in presenting the earlier stages of Villey's
argument, each phase of it is open to objections on points of detail. Simi-
larly, his presentation of Ockham's views might be criticized as unbal-
anced. (Ockham's emphasis on individual liberties in the Breviloqium was
matched by an equal concern for the common good in other contexts.) Yet
Villey always has a sound and sensible point to make, even when he seems
tempted to press the point to the edge of paradox. (Some early modem ju-
rists did exaggerate the importance of individual rights in Roman law;
Aquinas did have a flexible doctrine of ius naturale; the Franciscan disputes
did focus attention on the problem of natural rights; some modem lists of
supposed "human rights" are indeed protracted to the point of absurdity.)
A more serious objection to his thesis concerns the whole conceptual
framework within which it is set. Villey has devised a sort of Manicheean
universe. There is an Aristotelian thought-world, full of light and sweet
reason, and an Ockhamist thought-world, where all is darkness and blind
will. The good theory of objective right can flourish only in the first
thought-world, the bad theory of subjective rights only in the second.
When clear-<:ut affirmations of individual rights are found in texts before
63. Ibid., 121.
64. Ibid., 123-26.
65. Ibid., 126, "Et ii n'y a rim d'aulrr. ... Les droits subfectif11 .J.-.. lnJlvu~ uni rombl~ If'
vick resultant de la perte du dmil ruitul't'I."
M . IA farmalum, 261. 2.'iJ.
VILLEY, OCl<HAM, ANO THE ORIGIN OF INOJVIOUAL RIGHTS 31
Ockham they have to be dismissed as exceptions or aberrations or mere
misunderstandings of vulgar persons who were too ignorant to attach pre-
cise meanings to the terms they used in day-to-day discourse.
There are two main lines of objection to this whole thesis (apart from
the historical objection to be discussed below that rights theories did
indeed exist before Ockham). In the first place it is not clear that theories
of individual rights depend on Ockhamist philosophical premises-i!ven
in the work of Ockham himself. In the second place it is not dear that the
ideas Villey contrasts with one another-dassical objective right, Judeo-
Christian natural moral law, and modem subjective rights-are in fact
inherently inconsistent with one another.
As to the first line of objection: The metaphysical " moderate realism"
of Aristotle and Aquinas affirmed the primary existence of individual enti-
ties in the external world, in opposition to the Platonic theory of ideal
forms. There is no reason why such a metaphysics should be incongruous
with an emphasis on individual rights.67 Similarly, Ockham's more radical
criticism of a realist theory of universals did not exclude a concern with
right relationships between persons and between persons and things.611
( lckham's polemical works were indeed concerned precisely with such
relationships (between empire and papacy, between rulers and subjects,
lwtween persons and property).
Villey simply assumes a dependence of Ockham's legal and politi-
l'al thought on his metaphysical doctrines. " Avec une coherence par-
1.iite, Occam-juriste suit la voie d 'Occam-philosophe." This relationship
has indeed often been affirmed, especially, before Villey, by Georges de
I .agarde; but it has also often been contested.69 Charles Zuckerman has
.1rgued that all modem attempts to relate medieval political theories to
metaphysical doctrines involve logical errors.70 Even if this seems too in-
t r.msigent, Zuckerman certainly shows that, as a matter of historical fact,
h7. The point was made long ago by M. de Wulf, KL'lndividu et le groupe dans la sco-
1."tique du Xllle si~cle.~ Revue nfo...Scolaslique de philosophit 22 (1920): 341-357 at 348. and
I' <;illet, La pnsonnalile juridiqut rn droil ecclisillSliqut (Malines, 1927). De Wulf especially em-
ph.i.si7.cd the primacy of the individual person in Aquinas.
~. On Ockham ·s theory of re.l ations see e.g., G. Martin, " 1st Ockhams Relationstheori<'
Nt>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<...·1·111 lntNpretation of William of Ockham's Political Philosophy," Franciscan S ludit's •1
t 1•14•1): :l:l5-69; W. Kolmel. Wilhelm Ockham und srin kirchenpolitischen Schriftm (Essen. 19421
""'' .. , >.1s Natum't'ht bei Wilhelm Ockham," f'ranziskanischt Sluditn 35 (1953): 39-8.'>.
70 l '. Zuck<'rman. "The Relationship of Theories of Univi·~als to Th<'ori~ of l 'hur.-h
I ;1w1•11111u•nl in th1• Midtlk• J\g1•!1: J\ Critiq111• of Pn•viou~ Vi1•w!1," fournal nf llrl' I li.<lory 11/ lifrn.•
, ., (111'/l)· r,711 r,<1-1
32 TuE IDEA OF NATURAL RIGHTS
there is no correlation between the two spheres of thought in the positions
of many medieval thinkers. We can find Thomists and realists and nomi-
nalists at every point on the political spectrum. (For instance, Wyclif and
Hus, like Ockham, upheld the rights of Christian subjects against the pope;
but they were metaphysical realists in philosophy.) There is indeed no
incongruity between Ockham's philosophy and his political theory, but
there is no necessary connection between them either.
By the time Villey wrote on Ockham in the 1960s a substantial litera-
ture had grown up (which Villey simply ignores) asserting that Ockham
was not radically destructive in his philosophy nor radically innovative
in his political theory and, further, that there was no close connection
between these two spheres of his activity. John Morrall called Ockharn "an
interpreter and defender of the achievements of the past." Philotheus
Boehner, after a lifetime's study of Ockham's work, maintained that
"Ockham's political ideas ... could have been developed, so far as we can
see, from any of the classical metaphysics of the 13th century." 71 Villey has
emphasized that it was not only Ockham's own rights-theories that were
important for the future but his whole nominalist philosophy. And yet
the great Spanish scholastics of the sixteenth century, the Jesuits and Do-
minicans who provided the essential link between medieval rights the-
ories and modem ones, were not Ockhamists. Most of them considered
themselves to be Thomists (though Villey, of course, sees them as at best
erring disciples).
In fact, rights theories have been upheld by writers of various persua-
sions, including many who defended also doctrines of objective natural
right and natural law. This leads on to our second major line of objection
to Villey' s thesis. The various senses of ius that he discusses are not con-
tradictory concepts. Rather they are correlative. In considering Aquinas
and the canonists we suggested that the concepts of ius as objective right
order and as moral or legal precept are not intrinsically incompatible with
one another. Now we can add that both concepts are compatible with the
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 bibli-
ography 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).
VtLLEY, 0cKHAM, ANO THE OtUCIN OF I NDIVIDUAL RIGHTS 33
idea of individual rights. (We can define the relationship of parents and
• hildren in terms of an objectively right order. Or we can define it in terms
,,( moraJ precept-"Honor thy father and thy mother." But we could also
• IPfine the same relationship by saying that parents have a right to the re-
·.pcct of their children.)
As for individual rights and ius naturale considered as meaning what
•·· objectively right: to affirm a right ordering of human relationships is
lo imply a structure of rights and duties. In propounding a system of
1urisprudence one can emphasize either the objective pattern of relation-
·.hips or the implied rights and duties of persons to one another-and then
·•>:.1in one can focus on either the rights or the duties. The emphasis can fall
111 different ways depending on social and economic and political circum-
·.1.mces and on the temperament of a particular author. (It will probably
li.1ve little to do with his abstract metaphysics.) The resulting works may
I·•· very different in tone and spirit, but the different emphases do not nec-
• ··.s;i rily imply logical contradictions. Despite the assertion of Villey (and
·.11nilar assertions by some disciples of Leo Strauss in America), it is just
""'true that "the notion of subjective right is logically incompatible with
• l.1ssical natural right."
It is the same with ills understood as a body of moral or legal precepts.
V1ll<·y noted that some modem jurists regard rights as merely the advan-
'·•>:•-s to individuals implied by general laws, and he added that this could
111 11 <'xplain the existence of natural rights.
12 He saw a connection only in
•Ii.ti the natural law theories he associated with Ockham and the Fran-
' 1·.1-.ms allowed for "permissive laws" as well as precepts or prohibitions,
.111d he held that rights theories grew up in this area of permissive-
• w s s .1·1 The idea of permissive natural law is indeed important and we
·.11.tll need to return to it in later discussions; but the precepts and pro-
lul>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
·: J " I .1 genese," 99.
: 1 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. .. . N
·.1 for some examples o r this in canonistic thought see R. Weigand, Dit Nalurrtchlslthrr
·'· • I ...~ i<lrn 11nd rHkrttisltn von lrntrius bis Accursius und von Gratian bis fohannes Ttulonicus
' ""'"'" h. 1'167), 357- 59. The opposite view, that natural law and natural rights are contradic·
•"' v •""''•'pl-;, is often found in current American literature. See e.g., Walter Berns, -rhc Con·
• lll11 lh111 ·•!'I Bill o f Rights" in How Dews tht Conslilulion S«urt Rights?, eds. R. A. Goldwin and
\V II 'itfo11nbra (Washington, 1985), 50-73 at 55. N • •• natural rights and traditional natural
'""' ,., ,., In ptat it !<imply yt>I altngt•lher a('Curately, incompatible.... w Such view~ Sttm ba!l('\I
"" " 111l•l<1l1•11 ld1•11. lhat modt•m righl!< th1•orir11 nrt• d1•rlvt'd ~tlrely fn>m Hobhe11 and on
~ • 11 • 1•h· t1v111rnnn· of lhC' hi11tury u f llw nm1•1-rt 11f lw1 nnllm1/r bdow 11,.. • •vrnt.-.·nlh n•nlury
 THE IDEA OF NATURAL RIGHTS
34
with natural law at every stage in the history of the doctrine-in the
twelfth-century renaissance of law, in the eighteenth-century ~nlight~n­
ment, and still in twentieth-century discourse. A modem thinker hke
Jacques Maritain, steeped in the Thomistic tradition of natural law, has de-
fended natural rights as consistent with that tradition.75 Mo~e -~ently,
John Finnis, arguing in the language of contemporary analytic 1unspru-
dence, has also treated the concept of rights as a "valuable addition . .. to
the tradition of ' natural law doctrine." 176
ALTERNATIVE APPROACHES
Once we realize that the assertion of a rights doctrine is not neces-
sarily dependent on a prior acceptance of a nomi~alist. philosop~y. and
that claims for individual rights have commonly existed in a symb10hc re-
lationship, one might say, with theories of objective natural right and
natural moral law rather than in opposition to them, then the whole prob-
lem of the origin of Western rights theories can be approached in ways
different from Villey's. In suggesting some alternative approaches I am
not concerned primarily to contest Villey's understanding of Aristotelian
natural right as an ideal to which modem civilization ~hould r~turn-that
is another whole question-but rather to argue that his c~mm1tment t~ a
particular philosophical stance has led him to present a distorted version
of the course of medieval intellectual history. We can agree that the con-
cept of individual rights was not prominent (to ~y the le~st) in clas~i­
cal law and that Ockham was an important transmitter of nghts theories
to the modem world. But if we realize further that Ockham's own theory
of rights was not a radical innovation based on a tra~sposition of his
novel philosophical concepts into juridical language (whic~ ~ms an un-
warranted assumption) then an obvious approach to the ongm of Western
rights theories is to investigate the earlier m~ieval developme~t of those
doctrines, especially in the sources that contnbuted to Ockham s thought
in this area.
A natural starting point is the " renaissance" or "revolution" of the
twelfth century, which saw so many new beginni~gs in Western life a~d
thought. Villey himself, as we have seen, emphasized the concern for in-
dividual rights in the everyday, secular life of the a~e, and many ~~ent
writers have discussed the new personalist or humanist forms of rehg10us
75. /..es droits d~ l'hommut la Joi nature/le (Paris. 1945).
76. Natur111 Law (above n. 26), 221 . The traditional interdependence of natural law and
natural r ights theories was also emphasized by J. _D abin.in a cri!id~m n f Vill<'y. Sf.., " I lrnit
subjectif et subjectivisme juridique.H Archivr.> de ph1/~h1rd11 drmt 'I ( JQM)· 17 ·.1~
VILLEY, 0cKHAM, AND THE 0RicrN OF INDIVIDUAL RIGHTS 35
, l1·votion that grew up then. Villey appreciated the importance of Chris-
11.111ity for the growth of rights theories, and he saw too that Ockham's
,.111losophy was not mere "cobweb of the brain" spun out of his own
··11hjl'ctive consciousness but rather a reflection of the real-life circum-
·.1.11ices of the Middle Ages.77 Yet Villey stiJI supposed that social and re-
l1}:111us realities could shape a new system of jurisprudence only after
11 w y had passed through the filter of Ockham's nominalist thought. In fact
11t1111gh-as Harold Berman most recently and notably has pointed out-
.1l11·.1dy by the twelfth century the writings of the canonists were per-
1111·.1ted by doctrines based on individual intention and individual will in
·•••·.1s like the law of torts, the law of contracts, the law of marriage.18 It
would seem not unreasonable to look for a concern with individual rights
.1 l·.11 in such a juristic culture. Moreover, the political writings of Ock-
11 .1111 himself are saturated w ith canonistic references. He could hardly
.1 \·11id them. Before he ever became involved in the Franciscan poverty
d1·.pute, the issues had already been formulated in juridical terms by two
1. •1111idable lawyers, Pope John XXIl and his Franciscan adversary, Bona-
1:1.11 i.1 of Bergamo.
The earlier literature of the Franciscan controversies provides another
• •• I 1hody of source material, along with the writings of the canonists, for
11 ... 111vestigation of medieval rights theories. Villey was correct to see the
I ' .111ciscan Order as a "cradle" of rights doctrines even though he exagger-
·••··d the importance of Ockham as an innovator.79 lf we go back to the early
•t••\'" nf the Order, the whole Franciscan movement can be seen as a culmi-
11.1111111 in the religious sphere of the personalism or individualism that also
111lli11•nced twelfth-century law. From the beginning, there was a special
~ 111.t of individualism in Francis's altitude to the world around him; he did
'" 11 love mankind in the abstract but particular men and women.80 Francis
''"' I clown in his Rule that all the brothers were to obey their superiors, but
11 wn .1dded "in everything that is not against their conscience... ." He at-
" ·" '"" ;in extraordinary group of vividly diverse personalities as his first
h•llowt•rs. A little later, from the 1250s onward, the conflicts of mendicants
.1111 I -:c·nilars stimulated a more legalistic concern with individual rights in
11 ... wri tings of Franciscan masters.
· • I" /"rm11tinn, 2..16. 266.
·n I l.1wt.I J. Bt-rman, Uiw and Rroo/ulion: Tht Formation of lht Wesltrn ugal Tradition
11 •111111111>;1•, M11ss., 19RJ).
•, , V1ll1•y ,1ls11 calls 11ttention to the voluntarism of Scotus but still finds the dccisivl'
1 . ,..,,~ tl11<111Kh m ( )(kh11m. (See, e .g .. La formal ion, 179- 189). Villey's treatment of Scolus
•• ••11lol "''l"lrt· .molll<'T pap<>r. But th<- rem11rks above 11bout the pervasivenes~ of will and
11111•11111111 th,11 ""'' lir11h• .1ln•111ty in 1wl'lfth-<'entury l11w llR' nolt>vant h<'n> too.
1111 /\• < "lw!'>l.-rtnn wrnlt•: ~ r h· iii.I not ndl n.1hm• h i~ mo llw r: ht• 1·:11ft'tt " p.ulkulrtr
.t.... ~. · ~· hi~ h n1llll"r, or ., p1ulk 11l11r N)'llrrt•W htN Nl11h'r ··
36 THE IDEA OF NATURAL RIGHTS
Two streams of thought flowed together in Ockham's polemical
works. One had its source in canonistic writings, the other in the early lit-
erature of the Franciscan disputes. For the rest of this chapter I would like
to suggest some ways in which the further investigation of these sources
might advance our understanding of premodem rights theories.
Among the canonists one often finds the term ius used in a subjective
sense long before Ockham, and also the specific association of "right" and
"power'' that Vtlley emphasized as a major contribution of the Francis-
can to the theory of rights. Sometimes too, in offering formal definitions of
natural right, ius mJturale, the canonists gave a subjective sense to the term,
understanding it to mean, not objective natural law but a subjective "fac-
ulty," "force," or "power'' of the human personality. (These texts and other
canonistic usages of ius in a subjective sense are discussed in detail in the
foi!vwing chapter.)
An extensive technical literature has grown up around the doctrines of
the twelfth-century canonists, but it is not addressed to our particular
problem-the origin of rights theories and, specifically, the juristic under-
standing of the term ius before Ockham.81 It is the same when we tum to
Franciscan history. In this area too there is a huge body of modem writ-
ing on the early history of the Franciscan Order and especially on the
Franciscan poverty disputes.82 But most often it is only when we come to
Ockham that historians of rights theories seem to regard the subject as
relevant to their inquiries. In fact the mass of controversial Franciscan lit-
erature written before Ockham may be relevant too.
If we had to choose one pre-eminent philosopher as the first who
transplanted Franciscan religious concepts to the alien field of legal theory
it might well be Bonaventure rather than Ockham (though no one has ac-
cused Bonaventure of being a nominalist). Writing in 1269, Bonaventure
distinguished four forms of common ownership associated with four cate-
gories of rights-those derived from necessity of nature, from fraternal
charity, from the civil law of the world, and from ecclesiastical endow-
ments. The first two could not be renounced; the second two had to be
renounced by anyone seeking the highest form of evangelical perfection.113
Bonaventure (like Ockham) claimed for the Franciscans a right of use
81. On Ocldum's use of canonistic sources see my nOckham, the Concil.i ar llleory, and
the Canonists, fouTMl of the History of ldus 15 (1954): 40-70 and "Natural Law and Canon
H •1·.• ' " 1'" '""'1<'I dl't>ent per modum humilitatis .. . ut ipsi humilientur recipiendo." On
Law in Ockham's Dialogus,Hin J. G. Rowe, ed., Aspects of I.Alt Mtditval Covmimmt and Soci·
tty. Essays Pmenttd t1> / . R. Landu (Toronto, 1986), 3- 24.
8.2. M. D. Lambert, Fnmcisctm POVtrly (London, 1961} provides a convenient introduc-
tion. For a more detailed study of Ockham's involvement see M. Oamiata, Guglielmo
d'Odcluim: Puwrtit t 110ten, 2 vols. (Florence, 1978- 79).
83. A110Togill pilUf'"Um in s. 8cnOW711urar . . . o,,,ra mrmill. 10 vol!I. (QuaraC'C'h i,
18112- 1902) 8:233-:\~ at J09.
VILLEY, 0cKHAM, AND THE ORIGIN OF IN DIVIDUAL R IGHTS 37
..;cparate from ownership, but not a right based on secular law. The friars
had a right t~ m~terial support by virtue of the law of mercy and by virtue
n~ the law of JUSt1ce, he wrote (but Bonaventure meant divine justice here).
V11l~y has suggest~ that, in Roman law, ius utendi was essentially a legal
.1ttnbute of the thmg used; but such a position cannot be sustained in
1f'lation to Franciscan uses of the term in the century before Ockham. The
friars and their adversaries were constantly concerned with the inner
mtention and inner disposition of the user. Bonaventure wrote: "They
11mst claim their right with humility . . . that they may be humiliated in
11·ceiving" (and it was a natural right that he was discussing).IM We have
"''<'~ th~t a ~ispute exists as to whether Thomas Aquinas had any idea of
-.ubrecttve right. But what of Bonaventure? Was his concept of ius more
-.ubje~tive than Thomas's? Any comprehensive study of medieval rights
lht.'ortes would need to consider the Franciscan arguments that preceded
l > 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 ex-
f'lored before we can hope to make an adequate map of medieval rights
llwories. Besides denouncing the Franciscan doctrine of poverty, the secu-
l.1r masters also attacked the papal privileges that enabled the friars to
f'lt',1ch throughout the church. Such privileges, they maintained, under-
111111ed 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
11 tnms of the rights of subjects (bishops and priests) against their ruler
1
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 supe-
11111 prelate can take away from his subjects what belongs to them by
•1r.ht. " 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·
" " ' "'"''"" "'' 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' ~p<"Cially Y. Congar, A spects ecd 6 iologiques de la qul'rcll\•
M
""1 11• 1111'thli.ml,. 1•1 ~l.n1liNs dans la s.•nind1• moitit' du XIII<' sil'd t• t•I It· d('hut du XIV1•.''
,,.,,,,,..,rr
1 .. Im• ·• 1l1~·tm111/r rl lilli'rnirr 1111 nwvrn 6,1(1' :lb (I % 1): ;:l~ - 1 ~ I.
38 THE lDEA OF NATIJRAL RIGHTS
text of Gregory the Great, included in the Decretum, where the pope said
that he wished to maintain the rights (iura) of all other churches. Godfrey
concluded that the ruler could take away the rights of subordinates only in
exceptional cases when such action was necessary for the common good. U
he tried to act otherwise he could be resisted.
... Good rulers, especially ecclesiastical ones . . . ought to rule as is fitting
in the best polity, one in which the ruler does not intend his own good
but the good of his subjects, who are not slaves but free men, having the
power to oppose their ruler if he wishes to tyrannize over them.86
Of course, we encounter a feudal right of resistance in innumerable me-
dieval documents. But here we have an academic philosopher, in formal
philosophical discourse, using Aristotle's theory of government-which
Villey regarded as incompatible with subjective rights-precisely in order
to defend the rights of ecclesiastical subjects against papal tyranny. The
same issue will recur in Ockham's work; but Godfrey was not a nominal-
ist or even a Franciscan.
In discussing the problems of evangelical poverty also, the oppon-
ents of the Franciscans-just as much as the friars themselves-were led to
consider questions concerning property rights. Sometimes questions arose
in their writings on this theme about natural law and specifically about
natural rights as in these lines, also from Godfrey of Fontaines:
On account of this, that each one is bound by the law of nature to sustain
his life, which cannot be done without exterior goods, therefore also by
the law of nature (iure naturae) each has dominion and a certain right (ius)
in the common exterior goods of this world which right also cannot be
renounced.tfl
Here the meaning of the word ius shifted from objective natural law to
subjective natural right in the course of a single sentence. And, here again,
the argument about an inalienable right to use what is needed to sustain
life is one that recurred in Ockham. In considering the work of Ockham
himself we shall need to discuss especially some of the fourteenth-century
controversialists-both champions of the friars and their adversaries-
who wrote just before Ockham in the course of the conflict between John
XXII and the Franciscans; but we should bear in mind that the thought
and language of these writers had been shaped in part by the literature of
the earlier disputes.
86. Les Quodlibtts onu-qwirtoru dt Godefroid dt Fontaines, ed. ). Hoffmans, Us philosopltes
Bdges 5 (Louvain, 1932): 94 (Quodl. 12 q.3).
ffl. Philosophes Btlges 4 (1924): 105 (Quad/. 8. q.11), Nimmo etiam propter hoc quod un·
usquisque tenetur iure naturae vitam suam sustentare, quod non contingit ni!li dt> bonis
exterloribus. ideo etiam iure naturae qui libel habet dominium l't quodd11m irn1 in honi11 com·
munibus t>xt<"riurib1111 huim• munJI. rul t•tlAm iuri n•n1111tiftW nnn p<>tt'l<I lklh•."
VILLEY, 0CKHAM, ANO rnE ORIGIN OF INDJVfDUAL RIGHTS 39
The most full and interesting discussion of ius as a subjective right in
., Franciscan source before Ockham is found in a Quaestio of John Peter
1 llivi. Here again ius was identified with potestas. The question Olivi
l'osed was whether the possession of a ius-he mentioned specifically the
··right of royal power" and the "right of property"-added anything real
111 the person of the right-holder.• The whole argument turned on Olivi's
.1cceptance of a doctrine common to earlier scholastic philosophers, in·
1 luding Aquinas, the divine governance of the universe through rational
11.1tural law and divine positive law.
There is a certain order so absolutely fixed ... by reason of virtue and jus·
tice that God cannot and ought not to will the opposite .. . and this order
is commonly called the order of natural right (ordo iuris naturalis). There
is another order proceeding from the command of the divine will, such
that God can will or will the opposite ... as he pleases.89
1 Jlivi did not regard subjective rights as somehow contrary to this over-
.... 'hing structure of natural law or natural right but as implicit in it. Rights
..1 ru lership and rights of property were a part of the divine scheme of
1l 1111gs; that was why transgression of these rights by disobedience or theft
"".1s considered a mortal sin.90 Such considerations favored the argument
111.1! acquiring a ius did add something real to the personality of the right-
'" •Ider. But there were arguments on the other side too. A person could sell
111:- rights, which meant that the purchaser received the same rights the
••tlwr had formerly held, and this could not be if the rights were something
" "''·informing the person of the first right-holder. Again, a right could not
I··· -;aid to inhere in the body of a right-holder or any part of it, or in the in-
1t-llt•1.:t, or in the will. And rights could be acquired or taken away without
·" •v n..•al change in the subject (as a seal could lose its validity without any
11·.11 change in the seal).91 These are only a few points from a very complex
... hulastic discussion, but they give some idea of how much sophistication
• •••1ld be brought to bear on a consideration of rights concepts before the
··1111 of the thirteenth century. (Olivi eventually concluded that a right did
HH l1l<' text is edited in F. Delorme, #Question de P. J. Olivi 'Quid ponat ius vel d o-
""'"'"'' ' t•u encore ' De signis voluntariis',N Antonianum 20 (1945): 309-330. Olivi regarded
1.,.. 'l"•~tiOfl about rights as analogous to the questions whether a sacrament (e.g., baptism or
.... i..... 1ion) C'Qnferred a real character on the recipient, and whether the attribution of mean-
'"I'. ... 1,1, .. 1 something real to a word or sign.
11'1 I hid .• 324, '. . . est ordo sic absolute prefixus . . . ratione virtutis et iustitie, que l'~t
•t"'" I 1lt·u~ n1m polesl nee debet oppositum eius velle . . . et hie ordo cornmuniter vocntur
.... ,,, l11rl11 n11turalis. Alius autem est ordo sic a dominativo irnperio divine voluntalis pm·
• , .. i.·11K, 11111><1 Dt•u.'1 ipsum et cius oppo,c;itum . .. pm libitu potest velle.n
'Iii ll>i<i .• J l7.
•11 ll•ld . J211
40 THE IDEA OF NATURAL RIGHTS
add something to the person of the right-holder, but not of such a nature as
to change his real essence.)
Let us tum back to the canonists for one final text. Villey observed that
the lists of definitions of the word ius given by the Roman lawyers and by
Thomas Aquinas did not include the subjective meaning of the term as
a power inhering in individuals. But around 1310, twenty years before
Ockham wrote his first polemical works, the canonist Johannes Monachus
made a more ample list, ending with a mnemonic verse to help his stu-
dents remember a score of different meanings.92 Johannes set out from a
decretal of Nicholas UI, stating that, when an election required papal con-
firmation, the electee had to appear at Rome "cum omnibus actis, iuribus
et munimentis suis" ("with all his acts, rights, and documents"). This re~
minded Johannes of another canonistic text, borrowed from Roman law,
which affirmed that the pope had "ornnia iura in scrinio pectoris sui" ("all
laws in the shrine of his breast"). How could the electee bring his iura
when the pope already had all iura? The word ius was obviously being
used in different senses; and this consideration launched Johannes into a
list of all the possible meanings he could think of. There is a note of heavy-
handed playfulness in some of his definitions. He began with the entirely
non-legal meaning of ius as a rich liquid (aqua pinguis), a broth or juice, and
proceeded with some word-play on mando as meaning either to eat or to
command. (Then he solemnly explained the pun to his students, "Mondo
of the first conjugation, has two different meanings. .. .") His mnemonic
verse began,
lus is water, ius is right, ius is called a power,
An art, a form, the rigor of law, a bond, a nature, a place ...
and continued with many more explanations. Johannes' second definition
shows a kind of overlapping of objective and subjective right. "Ius means
the right and just, as when we say so-and-so has or does not have a right
(ius)."93 Another definition identified ius with dominium . The most impor-
tant discussion for us however was on the third definition, which treated
ius as meaning potestas. "Tertio idem est quod potestas.. .." Johannes first
cited in support of this a text of Gratian which claimed for the Roman
church a right of making Jaws (ius condendi canones).94 Johannes assumed
that this evidently referred to a power (potestas) of making laws. Johannes
next gave an example from the Roman Jaw of tutors. One text of the Digest
92. Johannes Monachus, Glossa Aurt'R (Paris, 1535), fol. xcir, Gloss ad Snt. 1.6.16.
93. Ibid ., HSecWldo ius dicitur rectum seu iustum ut cum dicimus lste habct vel non
habet ius.H
94. Ibid., "Tertio idem est quocl potestas, uv q . p rima !i hiM it,, .. (i .<'. <·.2s q.I dic-1t1m
pl)SI c.16, whe re Gratian referred to th(' ru.~ rondmdi n rrw rrM)
VtLLEY, 0cKHAM, ANO rnE ORIGIN OF INDIVIDUAL RIGHTS 41
,f.-fined a guardianship as a ius, another defined it as a potestas; so again it
····•·med that the two words could be used interchangeably. But at this
1·•1int the argument took a new and interesting tum. Accursius, in the Or-
.t11111ry Gloss to the Digest, had suggested that guardianship might be called
·' .. violent power" since it could be imposed on a person against his will.
llut Johannes would not accept that a ius could be based on violence,
which was normally culpable. Rather ius was a power introduced by right,
"' hy law, a iure introducta. Still not satisfied with his definition, Johannes
111troduced some more verbal equivocation, this time in connection with
11 ... word virtus as meaning either " force" or "virtue." He thought virtus
w.1... derived from vis intus; but one common definition of ius naturale
• .1lh·d it a vis implanted in all creatures and hence, Johannes suggested, a
1•11t11s. This innate virtus was a natural power. But, the author continued,
!\ rl imitates nature," and so the ius of the lawyers was a virtus too. But
lw11· the meaning of virtus shifted, and led Johannes to his final definition.
111 ·. w as not a violent power but a "virtuous power."95
l"he argument involved word-play and a sort of web of free asso-
. 1.111011 of juridical ideas. It was not a philosophical argument; it had
" "' hing to do with nominalism; still it led Johannes to a definition of ius as
•• ·.11hjcctive power, a "virtuous power" which was very similar to Ock-
l 1.1111' s "licit power" and indeed to Gewirth's modem definition, "a rightful
1·• 1w1•r." The definition acquired a broad currency in the later Middle Ages
i.,., .111se it was incorporated into the standard commentary on the Liber
·.,.. /us of Johannes Andreae. Then, in the sixteenth century, Johannes An-
0I11·.u· was quoted in the widely-read Summa of the Dominican, Sylvester
l '1w r.1s,<1to and Sylvester, in turn, became a major source for Vitoria and
.,,,.,.,.writers of the Spanish "second scholasticism."
•t•, lhi1I. The gloss is so c ompressed and allusive as to resist literal translation, "Alio
""" I" 11·1-:itur ilia littera ius cum dicat glossa ibidem ius et potestas, i.e . violenta potestas.
•... f f,.., 1-:lossa videtur mala. Nam omne violentum est reprobum . . . sed accipitur (iu5)
,.,.. I'"""''·''" a iure introducta. Sic dicitur quod nature virtus i.e. vis intus id est vis insita
"1 ...., •·st proprium in naturalibus ,in quibus est vis generativa . Sed trahitur a simili
''' " '"'" 1,1tis, cum ars imitetur naturam in quantum posse!, ff de adopt. si pater, 1, in fine, et
_,. ·'" 11ur ius t't potestas, Le. virtus potestativa seu virtuosa potestas...."
" '· Jo h,1nm-i; Andreae reproduced the definitions o f Johannes Monachus in slightly ab-
1.,. • t.111·.t lurm in his In lilulum Dt regulis iuris novella commtnlaria (Venice, 1581 ), fol. 2v
t • •· .,., "'' _.,,.,,. 'i. 12). Cf. Sylvester Prieras, Summat Sylvestrinae {Venice, 1584), 79r. Johann<'~
\ ,.. ,.,..... .uld t-d ·' significant comment in another context, In qumtum Decrrta/ium /ibrum
... .... 11.r • ••111111mtnri11 (Ve nice, 1581), fol. 151v. The text o f the Dtcrt lals {X.5.40.12) stated (quot·
11.,. •~i. l 11 1t• 111 Si•villl'). "!us est a iure possidendo." Jo hannes commenled, "Non loquitur h ie
l • 1.i.. ,.... •I•· iure• Jtl'nerali quod ll'gibus vd moribus constat .. . ~ sumitur pro iure quod
· ..,,,,...111 1•11v,11t1 inn· .1 liqua." It i.-; just lhe d istinction between i11s as genl'ral law and iu.< .,.
I"l•t\Y l r "f
I•·•••· t ll(hl th.it orw flrn.l!i in Smm•7.anJ oth..r ~vt'ntrc,,-.th · n-ntury ;iuthnl1'. On thi~ te1el !!<'<'
U
42 THE IDEA OF NATURAL RIGKTS

When Peter Olivi and Johannes Monachus discussed ius as subjec-

tive right, they were not casually or carelessly borrowing a usage from
vulgar discourse. Rather each was providing a detailed analysis (philo-
sophical or juridical) of a concept whose importance was fully apparent
to them. When Ockham in tum came to write on subjective rights there
was no need for him to inaugurate a "semantic revolution." A rich lan-
guage already existed in which rights theories could be articulated. The
doctrine of individual rights was not a late medieval aberration from an
earlier tradition of objective right or of natural moral law. Still less was it
a seventeenth-century invention of Grotius or Hobbes or Locke. Rather, Two
we shall argue, it was a characteristic product of the great age of crea- .,. .... ......
tive jurisprudence that, in the twelfth and thirteenth centuries, established ,
,
...,,.-; .. ·-
.:-•

the foundations of the Western legal tradition. Villey is justified in calling

attention to the abuses of rights language by many modem theorists, but ORIGINS OF NATURAL RIGHTS LANGUAGE:
it is a good Thomist principle that abusus non tollit usum. The underlying TEXTS ANO CONTEXTS, 1150-1250
concept may still prove of value in our political discourse. As to the history
of the doctrine, there is still a great deal of work to be done. Villey may
not have been correct in all of his conclusions, but he certainly stated the
problem perceptively. "If all the modern juridical notions . . . bom of
the idea of subjective right still did not exist at Rome, what a vast field ~\ ;If odern histories of natural rights theories usually place the ori-
of inquiry is the investigation of their true origin!"91 .{ ~ J.lgin of such doctrines in the late medieval or early modem pe-
11.,tfs; rights theories are commonly associated with the spread of nomi-
11,1l1s1philosophy or the beginnings of an entrepreneurial economy. In this
• l 1·•1'h'r I want to suggest that the humanistic jurisprudence of the twelfth
• .... tury, especially the writings of the medieval Decretists, may provide a
hl'ft1·r starting point for investigating the origins of natural rights theories
111.111 1•ither fourteenth-century nominalism or the nascent capitalism of
11.,. •·.1rly modem world.
Iii write a full history of natural rights theories, even for the modern
1·•·1111d, would be a formidable task. Ever since the days of Hobbes and
' "' ~ .. {<tt least) the concept of individual rights has been of central im-
1''" 1.1111«' in Western thought. But also, from the seventeenth century to
11,.. l'n'sl'nt day, rights theories have been persistently attacked, and from
11 . 111 y difforent points of view. The result is paradoxical. On the level of
1

1111 11.1lional politics a professed regard for "human rights" is mandatory;

1
· •

.,.,. ·"~~m· mainly about which regimes are most cynical in purporting to
.t.-1.·11.t tht•m. But, on the level of philosophical discourse, the existence of
••·•••11 ..r or human rights is often dismissed altogether. According to Ali!-!·
,,,,,, Mdntyn.•, for instance, "there are no such rights and belief in them is
111w w11h h1•lid in witches and in unicorns."'

I /\ M,11 lnly n•, liflrr Vrrl11r, 2nd ••ti (Notn• I >,1nw, 19114). f>'·l .
97. HL'idh du droit subjectif," 226.
41
44 THE IDEA OF NATUKAL RIGHTS
As I noted earlier, a historian cannot hope to solve all the prob-
lems that are raised in this area by modem jurists and moral phi-
losophers.2 But modem discourse about rights is often associated w~th an
implicit or sometimes quite explicit set of assumptions about the history
of rights theories. So perhaps a historical approach can contribute some-
thing, at least peripherally, to the ongoing arguments. Mcintyre himself
asserts, mistakenly, that no language existed in which the concept of a
right could be expressed before about 1400.3 Leo Strauss and C. B. Mac-
Pherson and Ian Shapiro, in different ways, all base criticisms of modem
rights theories in part on their understanding, or misunderstanding, of
a supposed seventeenth-century origin of those theories.• Often natural
rights theories are treated as a modem aberration from an older, perhaps
sounder, tradition of natural Jaw. Jurgen Habermas, for instance, has
written of a "positivization" (Positivierung) of classical natural law in the
modem era. The older tradition, he explained, laid down norms for virtu-
ous living; the new doctrine of natural rights allowed "a neutral sphere
of personal choice" in which each individual could egotistically pursue
his own advantage.5 ln this new way of thinking, a right was a freedom
to act in any way that was not explicitly prohibited. Habermas referred
here specifically to Hobbes. Earlier, Georges de Lagarde had made a
similar point in discussing Ockham's rights theories; he found in Ock-
ham's philosophy of natural law "a zone of human autonomy" where,
because nothing was prohibited, all was licit, and where human freedom
could be exercised without restraint. " Ll, ou elle ne defend rien, tout est
2. For the earlier bibliography see R. Martin a.n d J. W. Nickel, "Bibliography on the
Nature and Foundations of Rights, 1947- 1977/ Political1M>ry6 (1978): 395-413. Anthologies
on rights which have appeared since 1977 often include some historical material. A~ong
them are D. Lyons, ed., Rights (Belmont, 1978); E. Kamenka and A. E. Tay, eds., Human Rights
(New York, 1978); B. Bandman, ed., Bi0tthics and Human Rights (Boston, 1979); W. Laqueur
and B. Rubin, eds., ~ Humm Rights Rtadu (New York, 1979); A. S. Rosenbaum, ed., Phi1oso-
phy of Human Rights (Westport, 1980); J. R Pennock and J. W. Chapman, eds., Human Rights:
Nomos XXll (New York, 1981). R. Martin and J. W. Nickel, hRecent Work on the Concept of
Rights/ AlllD'ican Philosophical Quarterly 17 (1980): 165-180 provides an overview 0£ some
main trends of modem thought.
3. ltfttr Virtut, 69.
4. Leo Strauss, Natural Right and History (Chicago, 1950); C. B. Macpherson, Tht Politiail
Thtory of PosstsSfve lndiuidwilism: Hobbts lo Lockt (Oxford, 1964); I. Shapiro, Tht Evolution of
Rights in Libtnil Thtory (Cambridge, 1986). In a methodological article, •Realism in the Study
of the History of Ideas,• History of Political Thought 3 (1982): 535- 578, Shapiro comments, • If
w e want to understand our own beliefs a s fully and critically as possible it is essential . . . to
see where our beliefs come from and what functions thf'y servt' In th<- contemporary world"
(577). f agree with this approach; but it only emphH17.l'll thr llf'f"CI In jtCI our history straight.
Shapiro !IOmetime!I writl'l' as though tM- world ~11n In tlw IW'VC'nh·•·nth n•ntury.
5 . J. I faberma!'I, Tht'Oryand f'racli0'. tr11n". J. Vlt•1tr1 (llo"lon, l't74). M
ORIGINS O F NATURAL R IGHTS LANGUAGE 45
111 ·ite."6 This notion that ius naturale, "natural right," could define an area
••I human liberty as well as a body of restrictive law was of central impor-
1.111ce in the emergence of modem rights language.
Habermas and De Lagarde both drew a contrast between the modem
doctrine of natural rights and the thought of Thomas Aquinas, in whose
work the older tradition of natural law found a classical expression. This
nf.scrvation, a commonplace in much recent writing on natural law theo-
1 w -;, is true enough so far as it goes; but it has led to a radical error of
1wriodization in most modem writing on the history of natural rights.
lnltn Finnis observed that, since there is no doctrine of subjective rights
111 Aquinas and there is such a doctrine in Suarez, a " watershed" must be
..1111ated somewhere between the thirteenth century and the seventeenth.7
11111 this view rests on the fallacy, widespread among modem jurists and
1•l11losophers who are not medieval specialists, that if an idea is not to be
l1111nd in Aquinas it is not really a medieval idea at all. Another expla-
11.1tion is possible. It may be that a juristic, distinctively non-Aristotelian
llwory of natural rights had grown up before Aquinas, that Aquinas did
""' t·hoose to assimilate such ideas into his Christian-Aristotelian synthe-
'11'·. but that they d id enter the mainstream of Western political thought
lluuugh other channels. This is the thesis l want to explore.
I 11i: QUESTION OF ORIGfNS
Natural rights theories seem to be a distinctively Western invention.
lt111 such theories have not been characteristic even of Western culture at
.11l 1imes and places. Whether the ancient Greeks had any concept of sub-
1•·· h v (• rights at all is debated; certainly they had no doctrine of natural
111:lits.A(Sophocles' Antigone did not assert a God-given right; she found
11.-.·wlr bound by an inexorable law.) Stoic thinkers conceived of natural
1.1\v .1s an expression of divine reason pervading and ordering the whole
• ..·1111os, and they envisioned a natural law inherent in humankind as one
·•··1·1·1·1 of this pantheistic world-view. Diogenes Laertius held that, "our
,, t ;, Je Lagarde, La nllissance de I' tsprit laiqut au dee/in du Moytn Agt, 6 vols. (Paris,
I'• l·I 4h), 6:122, 157.
· I Finnis, Natural Law and Natur1ll Rights (Oxford, 1980), 206-207.
11 l·nr J iff<'ring views on the ancient Greeks' concept of rights see J. W. Jones, Tht Law
... .. 1 ' ~s••' 11reory of tht Grulcs (Aalen, 1977) 191; M . Ostwald, Nomos and tltt lkginnin11s of
"''' ""'" l>rnroerncy (Oxford , 1969), 113; K. J. Dover, Crttk Popular Morality in lht Timt of Pinto
'""' :\ 1,,,.,,,,.(Berkeley and Los Angeles, 1974), 157. Most recently Fred Milh!r has maintai.neod
"•·•• " •fcl('lrine of natural rights was implicit in Aristo tle's theory o f justice. r have argul-J
1..-1..w (< 'h. 11) that a natural rights theory could be fonnulated in Aristotelian language; but
t 1t1111i.. 1u1«h " lh<'nry came to be overtly as.wrted o nly in the medieval era. See F. Mlllt•r,
I1,,,.,,,., / 11.'1i1'r. mul RiRltl i11 Ari~lt>llt's PoliliN (Odord, \4"J5).
46 THE IDEA OF NATURAL RIGHTS
undivided natures are parts of the nature of the whole universe," and
Cicero wrote of a vis innata, an innate force in humans through which they
could discern the law of nature, ius naturae, that they were bound to ob-
serve.9 But all this is far from a doctrine of individual natural rights.
It is the same with classical Roman law. Julius Paulus gave an objec-
tive definition of ius as "what is right and good" and similar language
was used to explain the primary meaning of ius by Aquinas a thousand
years later.1° Classical jurists, like Stoic philosophers knew of a natural
moral law, accessible to human reason, but they did not derive from it a
doctrine of natural rights.11 In early Christian thought too, Paul wrote of a
law written on the hearts of men; but he djd not assert that "all men are
endowed by their Creator with certain inalienable rights."
Many scholars have suggested that a doctrine of natural rights
was always implicit in Judeo-Christian teaching on the dignity and moral
autonomy of each individual human person. Such a concept of human
personality could indeed provide a fitting basis for a theory of natu-
ral rights; and, of course, it does not nowadays have to be expressed in
terms of Jewish or Christian theology (though religious cultures that
regard individuation as illusory are not likely to develop rights theories
spontaneously.) But, if a doctrine of rights has always been implicit in
Judeo-Christian thought, it has certainly not always been explicit. 12 Merely
calling attention to Judeo-Christian values does not solve the problem of
origins. The rustorian's task remains-to understand the particular situ-
ation in which an old ideal of human dignity could first find expression
in a new theory of natural rights. There are two basic questions to be an-
swered. When did the phrase ius naturale, which traditionally meant cos-
9. Diogenes Laert.ius, Lives 7, 88; Cicero, De invtntiont, 2.22.65. On Stoic concepts of
natural law in humans see M. C. Horowitz, "The Stoic Synthesis of the Idea o f Natural law
in Man: Four Themes, Journal of lht History ofldt!IJS 35 (1974): 3-16. For Stoic influence in tile
N
Middle Ages see G. Verbeke, Tht PrtStna of Stoicism in Medieval Thought (Washington, D.C.,
1983). Some Stoic thinkers, especially the later ones, found a place for conscience and choitt
in their systems, but choice meant only a capacity to accept or reject a fate that was already
predetermined. Senecca wrote " fate volentem ducunt nolentem trahunt" (Ep. 107.11).
10. Digest 1.1.11. Other definitions followed, b ut they did no t include the idea of ius as
subjective right. For Aquinas see Summa thmlogiat 2.2ae.57. t . Ulpian gave a definition of ilU
naturalt (often q uoted in medieval sources) as · what nature has taught all animals" (Dig.
1.1.1.3).
11. See H.L.A. Hart, " Bentham on Legal Rights," reprinted in D. Lyons, Rights, 126,
"The concept of a right, legal o r moral, is not to be found in the work of the Greek phi!Mo-
phers. . . . Jurists of stature have even held that . . . Ro man law never achieved. a clur
concept of a legal right. Thus Maine w rote . . . ' the clear conception of a legal right . . . bco-
longs dis tinctively to the modem wo rld'."
12. John A. H enley. "Theology and the Basis of Human Rights," Srottish Journal of Th"'1-
ogy 39 (1986): 361- 378 discusses recent literature o n Chri.~tlanity "~a bMiR for righl!'! lhrorl"".
H <' r\'f('rs lo " Ill<' silt•nct' of mtKh of tilt' Chri!'llian tra<filiun on the> ~uhj<'<'t '" (:lh7)
0RJGrNS OF NATURAL RIGHTS LANGUAGE 47
1111c harmony or objective justice or natural moral law, begin to acquire
.1bo the sense of a subjective natural right? And what cultural context,
•v h;it set of contingent historical circumstances, made the shift of mearung
1•1 •-;sible and acceptable?
The two questions are really inseparable. Nowadays we are often
11·111inded that, when we purport to study the history of political ideas,
w1· are really concerned-or should be---wilh political language, with
tlw history of political discourse. Hence our first task is to understand the
• n11tcxt that sustains a particular style of discourse and renders it intelli-
r.1hll•. Different modem authors dwell on different kinds of context. u Some
nwl;ihistorians write as though the study of language itself is enough, as
rliough language constitutes a magic kingdom of its own, a context suffi-
' w11t to itself. Other critics, more sensibly 1 think, insist that we can and
.. 1u 111ld situate language in a real world of life and action. In any case, a
' li.1racteristic, recurring problem for rustorians is that patterns of discourse
1wrsist in contexts different from the one that first gave rise to them.
· .., pl'rhaps we need to be reminded that "the performance of speech acts
11n l me rely modifies language, but leads to the creation and diffusion of
1ww languages," that "any text may be an actor in an indefinite series of
l111>:11istic processes," 14 that "all linguistic interpretation involves interpre-
t.1h1>n by an audience." 15
Sometimes the currently favored hermeneutical approaches to intel-
li·· 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 lan-
t-: "·'>~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
t11kll<•ctual historians are trivial and sometimes they are relevant for our
111°111iry. Dominick LaCapra defined our problem precisely, if unintention-
·•ll v. when he discussed "noncanonical readings of canonical texts" and
t I For a recent cr itical discussion of some current approaches see A. Pagdm, "Rethin.k ·
'"!'. •h·· I j nguistic Tum: Current Anxieties in Intellectual H istory, fournal of tht History of
ff
1.1••, .. 4' 1 ( l'IAA): 519- 29
H I C: . I\. Pococ k, #Thl' Concept o f Language a nd the rnilitr d'ltisloritn: Some Considt>r-
. 11..,,. " " l'racti«·:· in A. Pagden, ed., The Lang11ages of Politicttl Thtory in Early -Mod"n Eu"'llt'
t• .rn1lt111t1:•'. 19117), 19- :\R, at 29, 31. Bal7.ac put ii more simply at the beginning of Loui.q IAm-
h • I ..V""' ll<:•;iu livn• nc> composerait-on pa:ot m racontant la vie et les aventures d ' un mot7
··~"" •lu1111· ii " n>tzu divl'r.iM imp~sions des evenements auxqut>l~ 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
1... ~ . l'lh~!J. 14.
I '• •.t..1plro, '" Ht•nli.!1111," t;41>.
48 THE IDEA OF NATURAL RICHTS
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 mean-
ings for ius naturale. But this was too modest a count. Arthur Lovejoy more
enterprisingly found sixty-six meanings for "natural," and the canonist Jo-
hannus 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 char-
acteristic 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.
SOURCES OF MODERN RIGHTS LANGUAGE
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 ex-
plore 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 "free-
dom," "claims," "power," "choice." When specifically natural rights are
discussed the patterns of language include words like "moral," "licit," "ra-
tional." Natural rights are also often related to the basic needs of humans
as moral agents, as in the work of Alan Gewirth. Gewirth distinguishes be-
tween 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, Jo-
hanrteS 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<'w 1lllvf'n, 191'1).
ORIGINS OF N ATURAL RlCHlS LANGUAGE 49
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 governing rules or moral principles." He distinguished sharply between
1
l.wors, "motivated by love or piety or mercy," and rights that could be "de-
111.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
1' 1 I. P. Plamenat2, Consenl, Fnedom and Polil1caf Obligation (Oxford, 1938), 82. Cf. T. H .
' ......... lrt"111rts on tht Principlts of Political Obligation (London, 1941), 2Cfl. "A right is a ~r
..1 ·" ""lo: . . . secured to an individual by the community. .. ." Similarly F. C. von Savigny,
·· ~·.1,·111 '''"" heutigm Riimischen Rtchts, 9 vols. (Berlin, 1840- 51), 1:7 " .. . d ie der ein7..eln
1·•., •., •11 J.ustehende Macht: ein Gebiet worin ihr Wille herrscht. . . ." For discussion of rights
•lu·•01 M • in Germany, see A. Vonlanthen, Zum rechlsphilosophischtn Strtil iibtr das WtStn do
.... ,.,,, ,,..,.,, Rec/its (Zurich, 1964).
.'It I. Ft•inberg. "The Nature and Value of Rights," foumal of Valut Enquiry 4 (1970):
• 1 1 -'"7. •11 257; " Duties, Rights, and Claims," American Ph11osophicol Quartoly 3 (1966):
I t • IH .11143.
.' I !'his It'd to difficulties when Feinberg considered natural rights. A starving child in a
11 ... . 1 wurl1I country has an obvious claim to be fed, but in an impoverished society tht>w
"'·' r h1• no ont> 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 ex<'rci~ of
lin·n~." " Nature and Value," 255.
,,,..,.,, ,, .11
.'.' ··N.tlun.» m d Valul'," 2."iO.
.' ' 111. A. f l.1rt, ~ Art' There Any Natu ral Rights?," Philosophical Rroirw 64 (1955); 175 - Jql
~• llM
Jot I( I . I .0111h·n. " RiKhl~ lnfotm1tion .md ttw lmp<1v1•ri~hmmt o f Mor.ii llwory," '"'"'"''
•o/ I 011111· lm11111v 17 ( l'lll'\)· K7 1112, .11 'I'>
so THE IDEA OF NATURAL RIGHTS
referred to a general "duty of charity" which does not necessarily give rise
to a right in any particular recipient. Hart gave an example of third-party
beneficiaries. If a promises b to confer a benefit on c, then c has no right
against a (though b does).25 The underlying point is that, in using the lan-
guage of subjective rights, we can make moral assertions that are not
always identical with those of moral systems concerned only with duties
or objective justice. The distinction is significant because moral codes do
not have to be expressed in terms of rights, and indeed they usually have
not been so expressed. Hart pointed out that we should not normally '
regard the Ten Commandments as conferring rights. He also observed that
natural law thinkers down to the end of the sixteenth century usually con-
ceived of natural duties but not of natural rights.
This takes us back to the historian's problem of origins. If ade-
quate moral systems can be articulated without any appeal to subjec-
tive rights, and normally were so articulated until quite recently, how
did rights language emerge in the first place? What is its source? Back to
a certain point in time the answer seems clear enough. The language
of twentieth-century writers echoes that of the classical natural rights the-
orists of early modem Europe. At the beginning of the seventeenth cen-
tury Suarez defined ius specifically in terms of the powers and claims of
an individual. In a complex discussion of all the meanings of the word
he wrote:
According to its strict signification ius is called a kind of moral power
(facultas) which anyone has concerning his own property or something
due to him. So the owner of a thing is said to have a right in the thing
and a workman is said to have a right to his wages. ... 26
A little later (c. 1625) Grotius gave three meanings of ius. The word could
mean "what is just" (the preferred definition of Aquinas). Or it could
mean a kind of law, and in that sense ius naturale was a "dictate of
reason." But between these two definitions Grotius introduced another,
subjective sense of ius and this he explored in most detail:
!us is a moral quality of a person enabling one to have o r do something
justly. 77
25. Feinberg, "Nature and Value,H244. Hart, uNatural Rights," 180. For medieval discus-
sion of this question see below, 71, 74.
26. ~ I~ibus 11c Dft1 ltgi.slatort, ed. L Perella, 8 vols. (Madrid, 1971~1), 1: 1.2.5, 24. • Et
iuxta . . . strictam iuris significationem solet proprie ius vocari facultas quaedam moralis,
quam unusquisque habet vel circa rem suam vet ad rem sibi debitam; sic enim dominus l"l'I
dicitur habere ius in re et ope:rarius dicitur habere ius ad stipendium . . ."
27. ~ jurt be/Ii tt pads (Amsterdam, 1646) (reprinted Washington, D.C., 1913), 1.1.4, 2,
H • quo sensu jus est, Qualitas moralis personae, comp<>tl'fll' 11d •liquid jui<1te habendum
••
vet agendum."
ORIGINS OF NATURAL RIGHTS LANGUAGE 51
I his "moral quality" could also be called a faculty; it could include power
, •vc•r oneself, meaning liberty, and powers or claims in relation to other
1"·rsons or things.
Suarez and Grotius distinguished a subjective meaning of ius from
"'her connotations of the word. It was left for Hobbes to insist that the
·.uhjective meaning was the only proper one:
The RIGHT OF NATIJRE which writers commonly call jus naturale, is the
liberty each man hath, to use his own power, as he will himself, for the
preservation of his own nature... . A LAW OF NATURE, lex naturalis, is
a precept or general rule found out by reason, by which a man is forbid-
den to do that which is destructive of his life ... law, and right, differ as
much, as obligation and liberty. ... 28
I .1h·r he explained that the sphere of liberty was defined by " the siJence of
tlw law"; where laws did not command or forbid, a person was free to act
.1·. hl' wished. Hobbes seems to deviate from the preceding tradition, not
1111ly in giving an exclusively subjective definition of ius, but also in ex-
' 111.ling the idea of moral rightness from his definition. (For Suarez and
c .1utius ius was a moral power, a moral quality.) But later authors devel-
,,,,,.tf Hobbes's distinction between natural rights and natural law in ways
111.11 restored the moral content of a natural right.
Perhaps the most clear and coherent account of natural laws and
11.11ural rights in a fully developed, eighteenth-century Enlightenment
1111111 of the doctrine is that given by Christian Wolff. For Wolff, law (lex)
1·•• 1 rule that obliges us. Natural law, law inherent in the rational nature
•'' man, obliges each person to seek self-perfection. But the fulfillment of
111• •r.11 obligation requires a certain freedom of action; and, Wolff declared,
I his faculty or moral power of acting is called a right (ius)." Carrying the
·" 1'.11mcnt further, Wolff explained that "What the law of nature obliges
1... 1s an end, ius gives as a means."29 He gave as an obvious example the
• •r.ht to food as a means of self-preservation. Wolff also held that, besides
• •1111manding and prohibiting, natural law could be merely permissive,
111.lirnting behavior that was licit but not obligatory; natural rights ex-
1·.tt·d in this area of permissive natural law.:io One is reminded again of
.'II 1..-vinthnn. ed. M. Oakeshott (Oxford, 1946), 1.14, 84. Hobbes, however, was practising
• .,.,, , nf linguistic legislation here. In normal seventeent!K-entury discourse the word ius did
1 ' " "' " lhe c-xclusive sense he attributed to it, as one can gather from the texts of Suarez
. .. 0
..... 11 ;mti1t'l; rather the word could be used in one sense as equivalent to la, a kind of law, or
•• • urild ht• used in a different sense to mean a subjective right. We shall find the same 'itu-
''""" In nwdi<•val diSCOUl'S('.
·"' 1'1~til11ti<Jn~ j11ris nalur« l'I Jll'nlium, ed. M. Thommann in Gtsammfllt Wrrb-, Abt 2, :lb
•• •In (I hlclc•ioht•lm, I %R ll.1), 26: 1.1.46, 24. "Facultas ista, llC'U pot('lltia moral111 11gendi dicitur
/u• llw~l~i r r,1{11 fry11al11rtu• 11"1i, l{rl ad ji11rm. jus q11oq11r 11111 ad mrdia . ..
N
Ill -;.... ht•luw n. fl<;
52 THE IDEA OF NATURAL RIGHTS
Habermas's "neutral sphere of personal choice" or de Lagarde's "zone of
human autonomy."
By the seventeenth century, then, complex rights theories existed
in which words like "nature," "reason," "licit," "right," were interwoven
with words like "power," "freedom," "faculty." We still need to ask: Where
does this duster of ideas come from? How did these patterns of language
arise? There have been many explanations, most of them concerned with
the context of seventeenth century life itself. Some scholars have argued
that the English Levellers' claim to religious freedom was the first adapta-
tion of the old natural law tradition to defend a new doctrine of subjective
natural rights.31 C. B. MacPherson discerned, behind the religious rhetoric
of the age, the presuppositions of a free market economy; and he argued
that these presumptions engendered a doctrine of "possessive individual-
ism" in which freedom was identified with property, and natural rights
theories served the narrow interests of the propertied classes.32 Leo Strauss
called attention to the shift from final causes to efficient causes associated
with the Scientific Revolution. The old tradition of natural law had been
concerned with human ends; in the new world of thought one had to start
from man's motives, his innate desires, which Hobbes presented as rights.
So rights replaced duties as the starting point for political reflection.
Strauss did not regard it as a change for the better."
Such views are typical of those that find the origin of modem rights
theories in some aspect of the religious, economic or intellectual life of the
seventeenth century. Michael Oakeshott, in a seminal essay on Hobbes,
suggested that we need to consider the problem in a broader context;
seventeenth-century thinkers, he suggested, were influenced not only
by the circumstances of their own age but also by an earlier tradition of
thought that they had inherited. Specifically, the skepticism and individu-
alism of Hobbes were "gifts of late medieval nominalism." 34
This point of view has been worked out in most detail by Michel
Villey, whose work I have already discussed. According to Villey, the
modem doctrine of subjective rights emerged quite suddenly in the four-
teenth century. Its creator was the nominalist philosopher, William of
31. M. Roshwald argued that an ancient doctrine of natural law and a medieval empha-
sis on concrete individual rights first came together to form a theory of natural rights in the
works of the LevelleTS: "'The Concept of Human Rights,H Philosophy and PhmommologiC'Jl/ Rt-
SMrch 19 (1958- 59): 354-379. More recently W. Garrett has suggested that medieval natural
law served to defend the autonomy of secular government against the church; in developing
natural rights theories, the Levellers aimed rather to defend the religious freedom of indi·
viduals against the state: " Religion, Law, and the Human Condition." Sociologicnl Annlys1~ 47
(1987): 1- 34.
32. P~sive Individualism, 1- 4, 220-238.
33. Natural Right and History, 166, 180- 181.
34. Introduction to l..tviathan. liii.
ORIGlNS OF NATURAL RIGHTS LANGUAGE 53
Ockham, who defined ius as "a licit power." As Villey explains things,
Ockham's voluntarism emphasized power rather than reason and his
nominalism attributed reality to individuals rather than universals; so
his political philosophy was inevitably concerned with the powers of in-
dividuals, which Ockham called rights.35
Villey's views have been widely and often uncritically accepted. Ock-
ham remains by far the favorite choice as innovator among those who
seek a pre-seventeenth-century origin for natural rights theories. But re-
cently the contribution of another late medieval theologian, Jean Gerson,
has also been emphasized. Gerson did in fact give an explicit definition
of ius as "an immediate faculty or power pertaining to anyone according
to right reason" and of lex as "a rule in conformity with right reason."36 So,
as Richard Tuck pointed out, he had already made the distinction that we
encounter later in seventeenth-century works between subjective right
and objective law.37 We should add that Gerson also associated ius with the
idea of synderesis, which he called a "superior" kind of reason, a capacity
for moral discernment akin to our conscience.38 So, for him, ius was pri-
marily an innate power to act rightly according to reason and conscience.
This is not quite what we mean by a natural right in modem discourse. But
<;erson further declared that from ius so defined it was possible to deduce,
hy a sort of mathematical reasoning, a whole theory of government and
property.39 He held that there were God-given rights which included lib-
1·rty, "a faculty of acting or not acting," and dominion, "a right of taking
inferior things for one's use and preservation."40 Gerson further associated
his idea of ius with the Pauline doctrine of evangelical liberty (here appar-
1·ntly following Ockham).41
Gerson was widely quoted by later Parisian condliarists and by the
Spanish scholastics of the sixteenth century. Christopher St. Germain used
JS. M. Villey, La fomiation dt la pensit juridiqut modtmt, 4th ed. (Paris, 1975), 199- 272.
.1 6. De vita spirituali animat in r. Glorieux, ed., ftitn ~rson . Oeuvm; compl~tts, 10 vols.
(l'.iris, 1961-73), 3:141, ")us est facultas seu potestas propinqua conveniens alicui secundum
•"• 1.1men rcctae rationis." The definition of lex, with a slightly different defmition of ius, is in
I ,,. 110/tslatt t cclc;iastica, Oeuvns 6 : 242, "Jus est facultas seu potestas propinqua conveniens
.1lin 1i S<'('tmdum dictamen primae justiliae . . . lex est regula conformitatem habens ad die-
' ·'""'" rectac rationis."
17. R. Tucic, Nat ural Rig/its Thtorits. Thtir Origin and Devtlopmtnl (Cambridge, 1979),
! '• 7 ft
111. I >t- vita, 142. According to Gerson, man could know the universal principles of good
1f111111);h t<yndn~iro and from them deduce particular rules o f action . On syndert"!iis in m•'·
,,,..,,.,,, 11,1tural /;1w th<'Ories stt M. B. Cmwe. Thr Changing f>rofilt of lht' Nal11rn/ l.11111 (11w
I l.1.:111·. 1977), 12..1 -JS.
1•1 llr 1•ila, 14:\.
411 llr l'iln, 14'>.
·I I /I,· 1•1/11. 17•1
54 THE IDEA Of NATURAL RIGHTS
his work in England. And Suarez listed the specific c~apters in whic_h
Gerson discussed the meaning of ius as among the maJOr sources of hIS
own treatise, De legibus. Oearly, then, Gerson was very influential. lt is not
so dear though that his views on rights--or those of Ockham-were also
highly innovative. . )~<>aled into a rigid theocratic absolutism in which rights theories could
lf we are to find an earlier origin for natural rights theones we need to
look for patterns of language in which ius naturale meant, not only natu~l
law or cosmic harmony, but also a faculty or abil~ty or power of ~~iv1d­
ual persons, associated with reason and moral dtSCernment, defining_an
area of liberty where the individual was free to act as he pleased,_leadmg
on to specific claims and powers of humans qua humans. I want finally to
argue that this whole complex of associated ideas, this la~ce work of !an-
guage, first grew into existenc~ in the wo~ks of the ~ed1eval Decretists.
The authors we shall need to d1scuss-Rufinus and Ricardus and Huguc-
cio and Alanus and others whose names have been forgotten-are not
much read nowadays except by specialists in this field. None of them
wrote an accessible, explicit little treatise on natural rights, which perhaps
helps to explain why they are not much noticed in modem histories of the
concept. Their patterns of thought hav~ to be ~onstruct~d from scat-
tered, sometimes laconic glosses on a vanety of topics. There ts no on~ ~ext
that could find a place in the canon of " great books" on Western pohtical
theory. But the Decretists' views were widely diffused in the law schools
of Europe by the end of the twelfth century and, transmitted in eclectic
works like the ordinary gloss to the Decretum and Guido de Baisio's Rosar-
ium, they continued to influence late medieval writers, not least Ockham
and Gerson. Gerson himself mentioned the opening chapters of the De-
cretum in introducing his discussion of rights. He proposed to ~ollow_ a
different methodology, he wrote, but added, "We shall not say things dif-
42
ferent from others, though perhaps differently."
CANONISTIC RIGHTS LANGUAGE-CONTEXTS
Let us begin with the twelfth-century world i~ which the can~nists
lived and taught. Medieval society was saturated with a concern for rights.
At the very highest level popes asserted rights against emperors and em-
perors against popes. The papal claim to " rights of heav~y and earthly
empire'' (terreni simul et celestis imper~i iura), incl~ded in Gratian's Decretum
at Dist. 22 c.l, gave rise to extensive theoretical argument among the
42. Dt uito, 143, " . . . non quidem alia dkturus quam alii, quamquam forte ali_tl'r.•
Gerson did not overtly quote ca.nonistic texts as frequently as his master in theol?8Y•. P1l'rre
d ' Ailly. But he was intel'\9ely interested in canon law, partly indt'ed hl'<"aU!lt' of h111 d111sat111·
faction with the state of the dlsciplin<' 11t the beginning of lht> fiflN•nth ('('ntury.
ORIGINS OF NATURAL R IGITTS LANGUAGE 55
canonists and to endless conflict in the sphere of real-life politics. (The text
.1lso provided the starting point for one of Gerson's most detailed discus-
.;ions on the rights of rulers.)0 Since neither the spiritual nor temporal
power could wholly dominate the other, medieval government never con-
never have taken root. Instead, in the vigorous, fluid, expanding society
of the twelfth century, old rights were persistently asserted and new
1 mes insistently demanded. A great feudal lord could enjoy simultane-
uusly all the rights enumerated in Hohfeld's modem classification-a
daim to rents and services, a power to do justice, an immunity from ex-
1.-rnal jurisdiction, a liberty to, say, hunt in the neighboring forest. Cathe-
dral canons asserted their rights against bishops. Bishops and barons de-
l1·nded their rights against kings. Newly-founded communes sometimes
I •ought their rights and sometimes fought for them. (In the twelfth century
>~rants of rights were often made to corporate groups, but as A. L. Harding
h.1s pointed out, they were commonly rights of a kind that could be actu-
.11ly exercised only by individual persons.44) Even peasants, emigrating to
'' lt1nd new villages in the still vast expanses of forest and wasteland, could
• l.lim enhanced liberties from lords who needed fresh supplies of labor.•~
Medieval people first struggled for survival; then they struggled for rights.
Of course all these rights were rights of particular persons or classes;
•lwy provide only a background for our inquiry into the origins of natu-
1.11 rights theories. But, before turning to that theme, we need to consider
··• 1111e other aspects of medieval life. It is unprofitable, perhaps, to ask
whether the twelfth century "discovered" the individual. I suspect that in
.ill cultures some persons are more self-aware than others, more given to
...11t·ction on individual experience. But twelfth-century civilization was
• ··rt<1inly marked by a new emphasis on personalism or humanism, and
•t lound expression on many levels of thought and feeling. Courtly love
l111·rature explored the joys and pains of human lovers. Religious piety
• 11llivated an intense emotional relationship between the individual Chris-
" ·"' and the person of Jesus. Peter Abelard taught that the moral value of
. 111 .ict was determined entirely by individual intention. Private scrutiny
• 01rnnscience, followed by private confession, became a common practirt•.
" "' h concern for human persons could easily lead on to reflection about
li11111an rights. Twelfth-century culture was also characterized by a gre<1t
llnurish ing of new centers of corporate life--communes, guilds, confra-
1.·111ilit•s, collegiate churches, monastic houses; but we have learnt-d lo
H I >q10lr.<taf(', 236.
H /\ I.. I larding, Hrolitical Liberty in the Middle Ag~.H Sptc11/um 55 (1980): 423 - '14:\.
~ ·· ( l11 rm11i\nl Hindividuali!\m H~t't" A. Macfllrlarw, Th, OriKi"s of ["Kli~h fmli11iduoliJnt
11 ""' " ' 111~1·. 1'17'l) I 1luut>I wlwlh••r lh<" En~li.•h •'><pNlt'tlC•' w,,,. ''" •'~<'t'pllo"-'111" tht• aulhnr
"'"l'lt.C"'r"
 }H; lt»;A OF NAT\JllAL l<t~Hrs
understand that the corporatism of the age was not antithetical to its in-
dividualism but complementary.46
Among all the "renaissances" of the twelfth century the one most
significant for us was the revival of legal studies, first the recovery of the
whole corpus of Roman law, then the reordering of the confused mass of
church law that had accumulated over many centuries in the Decretum of
Gratian (c. 1140), "the first comprehensive and systematic legal treatise
in the history of the West," according to Harold Berman. The concern with
individual intention, individual consent, individual will that character-
ized twelfth-century culture spilled over into many areas of canon law. In
marriage law, by the end of the twelfth century, the simple consent of two
parties, without any other formalities, could .constitute a valid, .sac:a-
mental marriage. In contract law, a bare promise could create a b~n~mg
obligation-it was the intention of the promisor ~hat counted. In.cnmi~al
law, the degree of guilt and punishment was agam related to the mtention
of the individual defendant, and this led on, as in modem legal systems, to
complex considerations about negligence and. d~minished respon~ibility,
areas of Jaw that we nowadays think of as mediating between the nghts of
individuals and the maintenance of public order.47
Given this whole background, one might expect to find an emphasis
also on individual rights in the works of twelfth-century academic law-
yers. vmey was reluctant to admit this. He acknowledged that, in vul~ar
medieval discourse, the word ius might be used carelessly to mean an in-
dividual right, but he argued that this usage could not infect academic
jurisprudence until Oc.k ham had provided a new philosophy to j~tify
it.ca But the evidence against his position is overwhelming. Indeed V11ley
himself, and Tuck too, following Villey, saw that a doctrine of subjective
rights was implicit in the civilian glossators' treatment of dominion-own-
ership, rulership, mastery-as a kind of right. ~either of th~ tw~ m~em
authors, however, seemed interested in following up the implication of
his own argument. Villey wrote dismissively that the writings of the civi-
lian glossators were full of "contradictions and hesitations and frustrated
46. The best overview o! twelfth century culture is R. L. Benson and G. Constable, eds.,
Re114issance and Rennuol in tht Twelfth Century (Cambridge, Mass., 1982). See especially the
contribution of J. F. Benton to this volume, HConsciousness of Self and Perceptions of lndi·
vidualityH(263- 295). For an introduction to various aspects of tweJfth-<entury individu~lism
sa C. Morris, ~ DisCX11Jeryoflltt lndividual, 1050-1200 (London, 1972) and the further _hte:a·
ture cited in the discussion between Caroline Bynum and Morris in Journal of E.ccles1as flcal
History 31 (1980): 1- 17 and 195-206. The q uestion of co rporatism and individualism is also
comidered here. fOl" further discussion on this see below, 208 ff.
47. The most recent full-scale treatment of these themes is H. Bennan, U1w and Rtvofu ·
tion. Tltt Formation of the Western Legal Tradition (Cambridge, Mass., 1983).
~~~9---
ORIGINS OF NATURAL RIGHTS LANGUAGE 57
··ndeavors." 49 Tuck found in the twelfth-century glosses only an inade-
•111ate theory of passive rights, apparently because the glossators of Roman
J.1w referred to dominium as a right that could be claimed or asserted
.1gainst all other persons (but Tuck's argument grows very fuzzy at this
l'oint in his work}.50
Neither Villey nor Tuck paid much attention to the treatment of ius
111 the canonists' writings. Tuck found in their work only a collection of
• l.lim rights again, and Villey an assertion of legal or moral precepts. Both
.1uthors were interested mainly in investigating the origin of active rights,
111.; conceived of as liberty or power, and they seem to have found little to
111tcrest them in the work of the Decretists. Tuck, for instance, suggested
iii.it Gerson was the first to treat liberty as a right. But in fact Gratian him-
····lf wrote of the iura libertatis, the rights of liberty, that could never be lost
however long a man was held in bondage.51 And the association of right
.111J power, ius and potestas (Ockham's "semantic revolution" according to
V1llcy), was commonplace in twelfth-century canonistic discourse. The
1•.1pal election decree incorporated into the Decrelum at Dist. 23 c.1 referred
I•• "'the right of the power to elect" (ius potestatis eligere). In discussing the
·.1.1tus of bishops-elect, Huguccio wrote simply, "They have the power
" ' .1dministering that is the right of administering." 52 Gratian attributed
tu !he pope a right (i11s) of establishing laws (surely an active right), and
l I 11~uccio observed that since the pope had been given the right, therefore
lw had full power in this matter.53 lnnocent III referred to the right of elect-
" ''~ .is afncultas and a glossator paraphrased his words by describing the
••r.ht (ius} as a "free power." 54
Such examples could be multiplied. Individual rights were important
'" 1he canonists. They had to be protected. In the ordinary glosses to both
ti ... Vt>cretum and the Decretals, the standard medieval commentaries on
11 ..- lt'xts, we can read that no one was to be deprived of his right except
·I' ' ~1.e 'jus in re' d u droit romain dassique au droit modeme,H in Conftrtncts faites a l'ln-
' ''"' 1t.- / Jro1t Romain (Paris, 1950), 187- 225, at 190.
·~ •. SN- below, 218 n. 32.
" t lh'rrtt11m Gr-atiam . .. una cum glossis (Venice, 1600), C.16 q.3 dictum post c.15.
" -' I luguccio, Summa ad Dist. 23.c.1, MS Admont 7, fol. 29rb, u • • • habent poteslatem
•· h11mi,.trandi id est ius administrandi sed non habent execulionem iUius iuris in actu."
" 1 ( ·.2..o; q. t diclum post c.16; Huguccio ad Dist. 4 dictum post c.3, MS Admonl 7, fol. 6vb.
"·I llrrrl'lall's D. Grl'Korii Papat IX cum glossis (Lyons, 1614), 1.4.8 "... ius eligc ndi •h-
i·''""' .11tiudicart> curelis, ut sic de caetero liberam habeant facultalem ... eligendi. ..."
11..- • ,,.,,~ 11£ tht> GI~ Ordinarill has " . . . adiudicent monachis . .. ius eligendi abbatf'm, ut
1o1..· 11m1 h.1b<-11nt potest11tem . . . eligendi. ..." For many e llamples of iu' u!led In a !lubjectlv«'
•r• ,.,.. tu mt'an an individual right in thirtttnth-century canonistic tellls, !lee C ). Rt>id, -rltr>
• '"'""""k <"nntribulion to lh«' Wl'l'I""' Right11 Tradition: An Historical Inquiry," 1!.l!llo11 Col
'°"
t. r '"" Rr1•il'111 JJ ( IWI ): .17 - 92.
 THE IDEA OF NATURAL RIGKTS
58
for grave cause.55 The canonists also understood dearly the difference
between claim rights and active rights; and around 1200 they developed
a technical vocabulary to distinguish between them-the terms ius ad
rem and ius in re that were still being used by Suarez in his seventeenth-
century rights theory.
All this is reasonably straightforward. In a world where rights were
constantly being asserted and demanded, the language of the jurists re-
56
flected the realities of their age. The context serves to explain the texts.
The point would hardly be worth making except that it has been disputed.
But we have still not reached the heart of the problem. We have not yet ad-
dressed the question of when and how a doctrine of natural rights came to
be asserted. To understand this we have to tum from the social and cul-
tural context of the canonists to the fundamental, tangled text that they
labored to expound, Gratian's Concordantia discordantium canon11m, com-
monly known as the Decretum. This text itself forms part of the context that
we need to understand if we are to interpret adequately the discourse of
twelfth-century canonists.
CANONISTIC RIGHTS LANGUAGE-TEXTS
The canonists could not avoid detailed scrutiny of the term ius natu-
rale 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 twelfth-
century 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'rl-
tury 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 En-
glish 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!<..~. '"'""·
A. Thompson and J. Gordley (Washington D.C., 199:\).
ORIGlNS OF NATURAL RIGHTS LANGUAGE 59
To distinguish thus between universal natural law and varying human
practices may seem to be a typical medieval tactic. The difficulties arose
hecause, when Gratian sought to buttress his initial definition with canon-
ical authorities and to pursue their implications, his argument led to a
morass of internal contradictions, or apparent contradictions. After giving
his opening definition, Gratian quoted in support of it some words of
Isidore of Seville:
All laws are either divine or human. Divine laws stand by nature, human
by usage. Fas is divine law, ius is human law. To pass through another's
field is fas, it is not ius.511
We shall have to return to fas and ius. But to continue with Gratian's ar-
>~ument: He went on to present another text of Isidore which included
multiple descriptions of the content of natural law:
Natural law (ius) is the law common to all peoples, in that it is every-
where 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
Some difficulties may already be apparent. The texts cited in support
1 •I Gratian's opening definition did not contain the Golden Rule that con-
..11tuted natural law for Gratian himself. Moreover Isidore's natural law
w .1s not a rule enjoined by scripture, like Gratian's, but a product of in-
·.1inctual behavior. And, again, Isidore's natural law included principles
""' evidently compatible with scripture. Isidore, for instance, wrote of
• 11111mon property as an aspect of natural law, but scripture recognized
I'' iv<1te possessions.
There are various other anomalies in the first chapters of the Decretum
1 111 it will be enough for our purpose to pursue the argument about prop-
1
"' ' Y· Apparently unaware of any difficulties, Gratian forged serenely
.1lw.1d. Natural law, he wrote, held primacy over all others in time and dig-
111ly for it began with the origin of rational creatures and remained always
111111mtable. It differed from human law because, by natural law, "all things
.11•· rnmmon to all," whereas human law had established private prop-
"" 1>1.<I . I c.1. HOmnes leges aut divinae s unt, aut humanae. Oivinae natura, humanal"
"'"""11" ,·on.o;tant.. . . Fas lex divina est, ius lex humana. Transire per agrum alienum fas !'!II,
ftt"t ...... . ~ .. ~·
'•'' I >isl. t c.7, ..lus naturale est commune omni um nationum eo quod ubique instinctu
'"'""'"' mm «>rl.,titulione aliqua hab<>tur, ut viri ('I feminae roniunctio. libemrum 11ucces.\i11
••I •·•hu .ttin, .-ommuni8 umnium ~~sio, ('t omnium una libcrtas, acquisilio rorum <JUllt'
• .... 1... I•·• r.1. 1mnit1111• <"••piuntur, llt•m cl1•ptl\\i1111• n•i 11('1 comnwncfatar prnmill<' n'l'ltltutiu, vlo·
1..nlln1• I '"' 111111 n•pul~ln "
60 THE IDEA OF NATURAL RJGHTS
erty.60 Finally, Gratian declared that any human law contrary to natural
law was to be held null and void.61 The conclusion seems obvious. The
human law instituting private property was null and void. But Gratian
really had no intention of asserting any such doctrine. In his own day both
canon and civil law recognized the licitness of individual property, and
Gratian simply took the fact for granted throughout the whole subsequent
argument of the Decretum. In Causa 12, for instance, he wrote that even a
bishop could have private property.
The implicit contradiction was never discussed by Gratian himself.
But the canonists who commented on the texts of the Decretum from about
1150 onward could see the difficulties inherent in them at least as dearly as
any modem reader can; and almost at once they realized that the apparent
incoherence in Gratian's thought and language arose from the fact that the
texts he presented used the term ius naturale in several different senses.62
If one could discriminate between them, the apparent difficulties might
be resolved. As Ricardus Anglicus pointed out, there was no incoherence
if ius naturale in one meaning of the term contradicted ius naturale in
some other meaning. (So private property might be contrary to natural
law in one sense of the term, but in accordance with it in another sense.)
It soon became a common exegetical technique among the early Decretists
to provide long lists of all the possible meanings of the term ius naturale-
including, perhaps, some that no one had thought of before. Huguccio ex-
plained the problem to his students near the beginning of his great Summa
on the Decretum (c. 1190):
Note that not all the examples of ius naturale given here refe.r to the same
meaning of ius naturale; therefore a prudent reader will carefully discern
60. Dist. 8 dictum ante c.l. "Nam iure naturali omnia sunt communia omnibus. .. . Iu.re
vero consuetudinis vel ronstitutionis hoc meum est, illud alterius."
61. Dist. 8 dictum post c.l, "Quaecunque enim vel moribus recepta sunt, vel scriptis com-
prehensa, si naturali iure fuerint adversa, vana et irrita habenda sunt."
62. Very few of the twelfth century rommentaries on the Decr"ttum have been edited.
However, many particular passages relating to natural law have bee.n printed in modem
works. Some important texts were included in S. Kuttner's seminal Repertorium der Knnon·
istilc, 1140-1234 (Vatican City, 1937). Others were collected by 0. Lot.tin, Le droit nnturel cha
Saini Thomas tt ses prl~rs, 2nd ed. (Bruges, 1931). 'The most ample collection of texts is
provided by R. Weigand, D~ Naturm:hlskhre der Legisten und Dekretisten von lrnuius bis Ac·
cursius und von Cration l1is /ohannfS Teulonicus {Munich, 1967). But the authors interested in
canonistic doctrines on natura.1 law have not considered the importance of their texts for
later theories of natural rights. Lottin observed (97), "Or, on ne voit nulle part ce demier
sense subjectif (du terme ius) dans la littttature du XIIe et du XDle siecle" (though his own
texts hardly support this conclusion). In the following discussion I have taken some texts
from Weigand. Where I have used my own manuscript transcriptions and Weigand provide!!
a similar transcription from another source, or a partial transcription, I have given a crO!l!I•
reference to NaturrtehtsWire. (Weigand sometimes omits phra!l('fl which !\re iiignifinmt for
our argument.)
ORIGINS OF NATURAL RIGHTS LANGUAGE 61
which example refers to which meaning. But lest the mind of some idiot
be confused we shall carefully assign each one.... 61
And he proceeded to do so. Already by 1160 Stephanus had found five
uwanings for ius naturale and, a little later, an English canonist gave nine,
1.mging from "the order and instinct of nature" to an impenetrable meta-
l'hysical definition. "Others have said that natural ius is an extrapre-
1 licamental something including both the mode of existing as essence
.md as being."64 In reading these texts one encounters a persistently re-
' 11rring problem. Gratian himself used the word ius consistently to desig-
n .1tc systems of objective law in the opening chapters of the Decretum-e.g.
lw considered in tum natural law, customary law, civil law, military law,
1•uhlic law as different species of ius; but the canonists who commented on
l11s texts lived in a world where, in everyday discourse, the word ius com-
rnonly meant a subjective right. Hence, in their commentaries, they would
·.hift from one meaning to the other, unreflectively it seems, and without
..,.Ping any need for explanation, evidently confident that their meaning
w11uld be plain to contemporary readers. Thus, where Gratian discussed
, 11stomary law as a form of ius, the Ordinary Gloss commented that a cus-
10111 was not established by repeated usage unless there was actually an
111t1•ntion to establish it, and then added, casually introducing the subjec-
1rv t' meaning of ius, that this was true even when a person acted by virtue
..1 his right (iure suo).65 Another example occurs at the very first chapter
•• 1 lhe Decretum (Dist. l.c.l) where Isidore distinguished between divine
11.1tural law {/as) and human law. The natural law defined in Gratian's
11wn opening dictum as the Golden Rule was dearly a precept, a divine
, urnmand. But fas has rather the sense of what is permissible or allow-
.1hl1• or rightful, and this meaning was suggested by Isidore's example,
·· li.1 pass through another's field." The Ordinary Gloss, commenting on this,
11-.1·d the word i11s to mean both a body of law and what was permitted
loy law-what we might call a right. " It is permitted by divine law (i1m
d11 i1w), nevertheless it is not a right (ius) because it is not permitted by
1
I 11 unan law (iure humano)."66 For us the concepts of objective law and sub-
1o l. ~umma ad Disl. 1 c.6, MS Admont 7, fol. 3vb, " Et nota quod non omnia exempla iurlii
.... 111r.1lis hie posita referuntur ad eandem acceptionem iuris natural.is. Ergo prudenti~ lt•r -
1. •• •~ •·rit caute discemere quod exemplum ad quam acceptionem iuris naturalis r<'frra
1111 St·tl ne ydiote animus in hoc confundatur, de quolibet dilige nter as.signabimus" (Cf.
w ..,,..,..,,.t, 214). Earlier. in his introductory remarks (MS Admont ? . fol. 2va). Hugucrio wrnlt•.
t ' '" 1..•m• intdlectis facile erit aptare sequentia cont·raria iuris naturalis, scilicel que ad qua~
... , ··1•tion<.'S pl'rtincant et rereruntur." For the comment of Ricardus see Weigand, 39'.\.
M Nal11rrtchtslrhrr, 148, 200, " Alii di>1erunt ius naturale esse q uiddam extra pl'l'tlkn·
1>u·11t11h· ha~nh'm ~imul modum exi!itendi per se ut l'll..'lt'ntiabile res et ens...
1.•, Cl<l!l-'I ntl lli.<I. I c.5, " . . . c tiitm si suo iun• id fai:t>n•t . .."
tol• ( ;(""""" /J1s/. 1 r . I. " . . . f;u..~t. hi t~t iun•<tivlno p..rmillitur, im1 .1uh·m non t••t. id ,.,.1
""" p t•r m l1111ur iun• humnnn." l.111t•r 11n. wlwn I lrn11t•m1I~ w.111!<'11111 rl'f1•r to" riKhl dnlv1•1I
62 THE IDEA OF NATIJRAL RIGHTS
jective right are clearly distinguishable, but in medieval discourse the
word iu.s could oscillate easily between the two meanings.
It is the same when we tum to the multiple meanings of the term
ius naturale, presented in the Decretist glosses. The everyday use of ius to
mean a right, a rightful power, infected the language of the canonists when
they came to write of ius naturale. They occasionally gave a Stoic interpre-
tation of the term as meaning a force pervading the whole cosmos; usually
they included Gratian's view that ius naturale was a code of moral law
revealed through scripture and also accessible to reason; but often they
added a subjective definition of the term that was not evidently present
in Gratian's texts at all.
A particularly influential discussion was presented by Rufinus, writ-
ing about 1160. Like many later natural rights theorists, Rufinus first
described a primitive condition of humankind after the Fall of Adam. Men
then were reduced almost to the status of brute beasts, but they retained
just enough traces of natural right 67 to come together in order to enter into
compacts with one another and so establish the first body of law. Then
Rufinus went on to offer his own definition of ius naturale. It was quite dif-
ferent from the original definition of Gratian that he was supposed to be
commenting on.
Natural ius is a certain force instilled in every human creature by nature
to do good and avoid the opposite. Natural ius consists in three things,
commands, prohibitions and demonstrations. . . . It cannot be detracted
from at all as regards the commands and prohibitions . .. but it can be as
regards the demonstrations, which nature does not command or forbid
but shows to be good, and this is especially so as regards the liberty of all
and common property, for nowadays, by civil law, this slave is mine, this
field is mine. 68
from civil law, he wrote, " ... ius de iure civile proveniens" (L«ture ad X.1.2.7). ln the same
passage he referred to a " . . . ius quod omnibus competit de iure naturali ... " The word
glides from one meaning to another in a single terse phrase. I have often retained the Latin
word ius in the English te.>ct above because frequently the sense cannot be rendered ade-
quately either by "right" or "law."
67. Or " natural force." Some manuscripts have ius he.r e and some vis. Since Rufinus went
on at once to define ius T!lltur11le as a vis he could easily have WTitten either word. See
H. Singer, ed., Die Summa Decretorum des Magister Rufinus (Paderbom, 1902), 4, "Cum itaque
naturalis vis (ius) in homine penitus extincta non esset . . . deliberavit homo cum proximis
convenire et mutuis utilitatibus consulere .. . et rertas pactiones inire que quidem ius
gentium appellantur." The doctrine of Rufinus is considered more fully in my " lus and
Metonymy in Rufinus," in R. Castillo Lara, ed., Studia in honorem emintntissimi Cardinali~
Alphonsi M. Stickler (Rome, 1992), 549·58.
68. Ibid., 6-7. "Est itaque nafurale ius vis quedarn humane cl'l'atun• 11 nnlurt' lnsita ad fa .
ciendum bonum cavendumque contrarium. Consi.<1lit autt'm iu11 n111h11111l.. h1 I rih1111, N<·ilin-t:
ORIGlNSOf NAlURAL RJGHTS LANGUAGE
Rufinus used the word demonstrationes to mean "descriptions," "indi-
, .1tions," of behavior that was licit but not required. So in one of its mean-
111gs ius naturale referred to an area of permitted behavior where "na-
ture does not command or forbid." The explanation that community of
l'mperty belonged only to the "demonstrations" of natural law (which
rnuld be changed by civil law) was widely accepted. But both parts of
tlie argument were very important, the initial subjective definition of
m s and the following tripartite division. We shall need to consider each
111 tum.
"Natural ius is a certain force.. . ." We do not know the precise
'" •urce of this formula if there is an earlier source (though, obviously, one
1·. reminded of Cicero's innata vis). But, whatever the source, the definition
Ii.id a great success, and it was taken up and reformulated, with frequent
\·.iriations of language, by many later canonists.
Odo of Dover (c. 1170) wrote, closely following Rufinus:
More strictly, natural ius is a certain force divinely inspired in man by
which he is led to what is right and equitable.69
I ·c •r Simon of Bisignano:
Natural ius is said to be a force of the mind the superior part of the soul,
namely reason which is called sinderesis.70
I or Sicardus:
l11s is called natural . . . from human nature, that is a certain force or
power naturally instiJled in man....71
........latis, prohibitionibus, demonstrationlbus. ... Detractum autem ei non est utique in
" ' ""' l;1tis vel prohibitionibus . .. sec! in demonstrationibus-que scilicet natura non vetat
""" prohibet, sed bona esse ostendit~t maxime in omnium una libertate et communi
1·• ~.~..s..~ione; nunc enim iure civili hie est servus meus, ille est ager tuus." On acquisition of
l'"'l"'''Y and natural law, see the texts collected by Weigand, 307-361. Underlying much of
,,,.. .ir~umentation was the Roman law doctrine that, according to natural reason, dominium
""' " .1n111irro by the first occupant of a res nullius. For further background see Janet Cole-
"'""· .. l'mper1y and Poverty" in J. H . Bums, ed., Tire Camflridge History of Mtdirool Pn/itical
' '"'".~/11 (C ·ambridge, 1988), 607-648.
,,., Wt•igand, Nalurrrchtslthrt, 161. Nin tertia significatione et strictiori dicitur ius naturalt•
"'" •1111•, l11m diuinitus homini inspirata qua ad id quod iustum est et equum ducitur."
I ll lhid., 17.l, "Cum autem ius natura.le dicatur esse ws mentis . . . Nobis itaqut' uidt'tur
'I""'' h1!1 uaturalc est superior pars anime, ipsa uidelicet ratio, que sinderesi11 appellatur ..."
I'" 11th .., h•d!I idcnlifyinK iu$ nnluralt as ~ind~rtSis see Wt'igand, 177, IS7.
·11 lhicl., IR4. " Nam lm1 naturall' dicilur . . . 01b humana natura, hix· t'lll qm>dam ul11 1•1
I '' 1tr11t I" homlnl natmnllh•r ln11lta a.J fnch•ndum htmum t•t ult"mlum 1..'0l'\lrnrium."
 64 THE IDEA OF NAllJRAL RIGHTS
Ricardus Anglicus explained:
Some say that natural ius is free will ... Others say that it is charity ...
others say that natural ius is the superior part of the soul, namely rea-
son.... We reject none of these.n
·~
Richard Tuck suggested that Gerson was the first to define ius as an ability
or faculty; but this language too occurs in the twelfth-century glosses. Ac-
cordine; to the English Summa, In nomine:
Natural ius is a certain ability by which man is able to discern between
good and evil. and in this sense natural ius is a faculty ... and this is free
wiJJ.'3
So far, of course, we are not dealing with any overt theory of natural rights;
but it may already be evident that the subjective understanding of ius that
Gerson took as the starting point of his rights theory, "a faculty or power in
accordance with right reason," associated with free choice and syndere-
sis, was no novelty of late medieval theology; it had already found ample
expression in the glosses on the Deere/um two centuries earlier.
Many Decretists included a definition of ius naturale as a kind of sub-
jective fo~c~ _or power inherent in human personality, along with many
other defimtions. But the g.r eatest of them all, Huguccio, was unusual in
insisting that this was the one primary and proper meaning of the term.
According to his definition, "natural ius ic; cnlled reason, namely a natural
force of the soul. . . ." Huguccio added that, in a second sense, the te rm
could be used to refer to the moral laws known through reason, which
could be summed up in the scriptural rule "Do not do to others what
you do not want done to yourself."74 All this seems conventional enough.
Huguccio was apparently just following Gratian. But then the argument
took a sudden turn. Huguccio declared sharply that this second mean-
~g-Gratian's own meaning-expressed an improper understanding of
1us naturale. We ought to say that moral precepts are effects of natural ius or
that they derive from natural ius rather than that they are natural ius.75
n . Ibid., 212, HDicunt enim quidam quod ius naturale sit liberum arbitrium . ..
Alii dicunt quod sit caritas . .. Alii dicunt quod ius naturale est superior pars anime, ratio
scilicet ... NuUorum sententiam reprobamus.H
73. Kuttner, Repertorium, 202, "Quarto modo dicitur ius naturale habilitas quedam qua
homo statim est habilis ad discemendum inter bonum e t malum: et secundum hoc dicitur
ius naturale facultas-hoc est liberum arbitrium.u Kuttner printed parallel passages from
two other related works whkh also described ius naturalt as a faculty or ability (cf. Weigand,
197). See Tuck, Natural Rights, 26, and my "Tuck on Rights,H 438.
74. Ms. Admont 7, fol. 2rb (Introduction), Hlus ergo naturale dicitur ratio, scilicet natu-
ralis uis animi ex qua homo discemit inter bonum et malum ... Dicitur etiam secundo loco
ius naturale iudicium rationis ... et ut breuiter dicam, nolle aliis farere qtK>d tibi non uis
fieri ... "(cf. Weigand, 215-216).
75. u5ec1 in hac acceptione improprie dicitur ius natural<• nun •111u1lllh<'I t.tlium 4u11li.1
diximus contineri in hoc acceptione potius "it t'rft'<"hl~ iuri" nahirall• 11rl 11h r n , ,,.,..., •.,,1,11111•1
ad ipsum ex iun• naturali tenl'i\tur quiio quam "it iu• '"'turAlr" (lul Jtlil
ORIGINS OF NATURAL RIGHTS LANGUAGE 65
Huguccio did not maintain a consistent distinction here between ius and
lt'X; like his contemporaries he sometimes used the terms interchange-
.1bly.16 But he was distinguishing dearly between a subjective and an
objective sense of the term ius naturale and asserting that the subjective
-;ense was the primary one. Moreover he was insistent about this. On Gra-
tian's view of ius naturale as what was contained in the Old Law and the
( ;ospel, he wrote, "If audacity be granted, I will safely say that this is
improperly called ius naturale."77 Huguccio made the same point when
he discussed the varied content of ius naturale in the text of Isidore at
I>ist. 1 c.7. In modem discourse some of the items listed by Isidore would
h<' regarded as rules of natural law ("the return of money loaned") while
others seem more like examples of natural rights ("the repulsion of force
hy force"). Huguccio commented on this text, "The things set out here
.ire not natural ius or natural iura but each is an effect of ius naturale or
dl'rives from it." 78 Instances of natural law or natural rights were both,
.iccording to Huguccio, effects of ius naturale understood in a more funda-
nwnt_al sense. In his more lenient moods, Huguccio did acknowledge
that rns nnturale could mean a rule of conduct, a "judgment of reason";
hut this was a secondary, derivative meaning. For Huguccio, ius naturafe
111 its primary sense was always an attribute of individual persons, "a force
nl the soul," associated with human rationality.
In reading the language of the twelfth-century canonists or Ger-
·.on's later adaptations of it, one is often reminded of the Stoic doctrine of
·' natural law in man. But a decisive shift of meaning and emphasis oc-
' urred in the twelfth century. For some of the Stoics and for Cicero there
w .1s a force in man through which he could d iscern ius naturale, the objec-
llv<• natural law that pervaded the whole universe; but for the canonists
111~ 11nturale itself could be defined as a subjective force or faculty or power
• •1 ability inherent in human persons. Although such definitions do not
111 themselves express a doctrine of natural rights, once the term ius natu-
, ,,,,.was clearly defined in this subjective sense the argument could easily
11111vt• in either direction, to specify natural laws that had to be obeyed or
11.1tural rights that could licitly be exercised; and canonistic argument
·.non did move in both directions. Stoic authors, when they wrote of ius
'lh. A!!. noted above, this was also typical of seventeenth-century usage (above n. 28).
l\t..,....v,·r I ft>bbes's attempt at " linguistic legislation"
did not succeed. /us continued to havr
'"''" """ming:1 as long as works on law or political theory were written in Latin. It is thr
.,,,...,. with ( ~·rs<>n. Although he distinguished between ius and ltx when giving formal defl-
"'"""~ lw ,.ftt•n uS<-d tilt' words interchangeably in other contexts.
Tl ··u.,,1,.. si auditlia detur. dico uerbum l't'CUre, quod hoc i1L~ improprit' dicitur n11tu-
, ,,1,. ·· (Inf 2rh)
'/ H Sum""' 1111 1>i~I . I cf>, MS A<lmcmt 7, fol . Jv;t, "Nam ra •1u.• hil' ponu11111r non "'"''
s...1•1•111ttlit,..t •~I•• l'~t c•ffrt·h" lurl~ naturnlt" uc•l nh c'<I •Ir
111 • '"'htr.111' tH•I iur.1 11.tt11ri\li'1. . .
ft••·11.lll .. {11 Wr111,11111I, 71'1)
66 THE IDEA OF NATURAL RIGHTS
Mturale, were thinking mainly in terms of cosmic determinism; the canon-
ists were thinking more in terms of human free choice. When the con-
cept of ius 1tllturale was associated in the canonists' glosses with words
like ''power," "faculty," "free will," it was moving in a different semantic
field of force so to speak, and took on new meanings. Stoic reflection on
ius naturale never led to a doctrine of natural rights; canonistic reflection
did so, and quickly.
To carry the argument further, we need to recall the common modem
view that to have a right is to enjoy a sphere of personal liberty, a "zone
of autonomy," an area of licit choice where the right holder is free to
act as he pleases. Alongside the definitions we have considered so far
of ius as a subjective moral force or power inhering in individuals, we
also encounter this precise understanding of ius naturale in some of the
twelfth-century glosses. The authors commonly took as a starting point
the second part of Rufinus' definition, that we have not explored so far,
the tripartite division of natural law into commands, prohibitions, and
demonstraliones. Often the "demonstrations" were taken to be descriptions
of a primeval state of affairs-the "state of nature" familiar in many later
natural law theories-which had been superseded by the later develop-
ment of human law and government. Alanus even wrote, "Positive law is
always preferred to natural law," but he meant only natural law in this
latter sense.79 Sometimes, however, the third kind of natural ius, corre-
sponding to Rufinus' "demonstrations," was taken to be a permanently
existing feature of the law (or right) of nature, a kind of natural ius that
defined an area of permissiveness where rights could licitly be exercised,
rather than a body of restrictive law.
The Summa, lnperatorie maiestate posed the standard problem that,
according to Gratian's texts, private property instituted by human
law seemed contrary to natural law. The author explained that natural
law consisted of "precepts, prohibitions, counsels and permissions"; since
private property did not fall under the "prohibitions" of natural law its
introduction was licit. This led on to a consideration of property as a
natural right. The author noted that ius naturale was sometimes identified
with ius gentium, which also permitted acquisition of property. He con-
cluded, "The law of nature (ius nature) is called the law of nations (ius
gentium) because, by dictate of nature rather than by command of a statute
(lex), one has his right (ius)." 80 The oscillation between ius as meaning ob-
jective law and ius as meaning subjective right which we noted earlier in
79. Weigand, 318.
80. lbid., 165, urus enim nature dicitur ius gl'nlium quill tlf' nllhlfll 1lkli\nlr, 11011 tit• lc•gc•
precipiente potius habet ius suum."
ORIGINS OF NATURAL RIGHTS LANGUAGE 67
the Ordinary Gloss occurs here in the specific context of natural law and
natural right.
Other early glossators of the Bolognese school defined natural ius
as conduct that was "licit and approved." But the dearest use of such
language to specify "a zone of human autonomy," "a neutral sphere of
personal choice," is found in a group of English glossators of the 1180s
who wove together in a new synthesis the idea of a permissive natu-
ral ius, Isidore's definition of fas at the beginning of the Decretum, and
Paul's words to the Corinthians, "All things are licit for me." The author
of the Summa, In nomine, who defined ius naturale in one sense as a fac-
ulty or ability, gave as another meaning of the term:
fos natura/e . . . licit and approved, neither commanded nor forbidden
by the Lord or by any statute, which is also called fas, as for instance to
reclaim one's own or not to reclaim it, to eat something or not to eat it, to
put away an unfaithful wife or not to put her away . . . whence, upon
the words of the Apostle, " All things are licit for me," Ambrose com-
mented, " by the law of nature" (lege nature).81
(I .ater on, Gerson would declare that the word Jacultas was particularly
.1ppropriate to define right in his subjective sense because [he thought)
/amltas was derived from fas .)
The idea of natural right as a sphere of free choice was emphasized in an-
111 her English gloss:
/us nnlurale .. . licit and approved though not commanded or prohibited
by any statute, as to go through another's field or not to go, which is
called fas; to eat or not lo eat, concerning which Paul said, when he spoke
of the use of foodstuffs . . . "All things are licit for me" ; all things, he
said, which concern food are licit by the power of free choice and by
natural law (lege nat11ral1).82
HI. Kuttner, Repertorium, 202, "Secundo modo dicitur iusnaturale licitum et approbatum
•11111<1 nee a Domino nee constitutione aliqua precepitur prohibitu.rve, quod et fas appellatur,
"' "'JX'lere suum vel non repetere, comedere vel non comedere, dimittere uxorem infiddem
• uh.•hilare volentem vel non dimittere.... Unde (super) illud Apostoli 'omnia mihi licenl"
/\mhrosius: lege nature." 1ne idea that le·x could be permissive was ancient: see Digr.ct 1.4.:l
.111d I >ist 3 c.4 of the D«retum. The interest:ing twelfth-century development was the as.1oci ·
........ of this principle with a doctrine or natural right.
H2 l>i~ri11cti<m~s Bamllf'rgen.<is, MS Bamberg Can 17, fol. 94ra, "lus naturale ... qu11<I
h oHum 1'llt l'I approbatum, quamuis nu Ila con!:tilutione sit preceptum nee prohibitum vf'luli
1~·• •'11.rum alienum ire vel non ire quod fas dicitur, commedere non rommcdere. dt- •1t1<>
·•1•11~111111~ l'aulus cum dt• u:<u dhorum lnquewtur ut de idolatria dil<il 'omnia mihi lkf'nl.'
" t1111l1t ,11 ... 11 <lilt' .Ht d ll11m ('<'rtint•nl lin•nt polr~tnt,. lilwri arhilrii 1•t lf'g•· n,11ur.tli" (d. W1•I
........ I. 711")
68 TuE IDEA OF NATURAL RIGHTS
This understanding of natural right, which is also found in other contem-
porary English works,33 became broadly diffused when it was incorpo-
rated into the widely read Summa of Huguccio.114
The association of ius naturale with Paul's text in 1 Corinthians broad-
ened the apostolic teaching on Christian exemption from Jewish cere-
monial precepts into a more generalized doctrine of natural liberties. (The
same argument will recur in Ockhams' natural rights theory.) It was not
that Christianity first conferred rights on its followers; rather, by not im-
posing the restrictions of the Old Law it left them free to exercise their
pre-existing natural rights. ln the texts we have just quoted ius naturale
plainly does not mean restrictive law; the term is used to mean what we
should call a natural right-to eat what one chooses for instance. The right
of nature in these texts is what is permitted by the law of nature.
In discussing modem rights language, Hart explained that a right de-
fines an area where the agent is free to act as he chooses, to assert a claim or
not to assert it. The canonists were making the same point-for them ius
naturale could mean "to reclaim one's own or not to reclaim it." Christian
Wolff wrote, "The law (lex) of nature is called preceptive which obliges us
to perform certain actions; it is caJled prohibitive when it obliges us to omit
certain actions; it is called permissive when it gives a right to act." We find
this same doctrine expressed in very much the same language, scattered
through the Decretist glosses of the twelfth century. Wolff added, "What
we have a right (ius) to do is called 1icit'. "85 This again echoes a common
canonistic definition of ius naturale. Michel Villey, describing the doctrine
of individual rights which, he thought, could be formulated only after
Ockham, wrote that such rights implied "a quality of the subject, one of his
faculties, a liberty, a possibility of acting."86 This too was affirmed by the
twelfth century canonists as one of the many meanings of ius naturale.
ln the period of transition from medieval to modem thought during
the sixteenth century, both definitions of ius, as a zone of human auton-
omy or sphere of licit conduct, and as a faculty or power of the individual,
were drawn together in the very influential work of Francisco Vitoria, a
principal founder of the school of Salamanca.
83. See Kuttner, Rqlutorium, 202 and Weigand, 209. Also Ricardus Anglicus, Summa
quatstionum, MS Zwettl 162, fol. 145r. "Secundo modo licitum dicitur et approbatum nulla
constitutione preceptum uel prohibitum. Unde Ambrosius 'omnia mihi licent' lege nature, et
Augustinus alibi, licent que non precipiuntur nee prohibentur" (cf. Weigand, 213).
84. Huguccio gave the meaning licitum rl approbatum, with the usu~! refere~ to Pa~I
and Ambrose, as a possible fifth definition of ius naturak. He preferred his own pnmary defi-
nition, discussed above. See Weigand, 217.
85. Institutionts, 22, 23, * ux naturat . .. pennissiVt, quae jus dat ad agendum," " . . . ad
quod agendum tantummodo jus habemus, Ucitum dicitur.n
86. " La genese du droit subjectif chez Guillaume d 'Ocram," Arclri~ de philo...,pliir du
droit 9 (1964): 97- 127, at 101.
ORIGINS OF NATURAL R.IG KTS LANGUAGE 69
Vitoria, however, seems to have been unaware of the earlier origin of
the doctrines that he had assimilated during his preceding years of study
in Paris:
lus therefore ... is nothing else than what is licit or what is licit by
Jaw. . .. This is plain from Saint Thomas on 2.2ae q.57 art 1. . .. And so we
use the word when we speak. For we say, "I do not have a right (ius) of
doing this," that is, it is not licit for me; or again, "I use my right," that
is, it is licit.
Conrad (Summenhart) gives a broader definition of the word ius. ...
He says that ius is a power or faculty pertaining to anyone according to
the laws-Conrad takes this definition from Gerson.87
Vitoria correctly ascribed the definition of ius as a facultas to Gerson
(though, as we have seen, it was not original with him). But the attribution
of a definition of ius as a subjective right to Aquinas was quite mistaken;
Aquinas taught no such doctrine. Vitoria, steeped in a scholastic tradition
lhat had been shaped by juristic as well as by theological reflection, and
n mcemed with the new rights problems of his own age, including those
.irising from the discovery of America, creatively reinterpreted St. Thomas,
rust as the canonists of the twelfth century, steeped in the problems and
1•reconceptions of their own society, reinterpreted the ancient texts col-
l1·cted by Gratian. In their different ways, both Vitoria and the Decretists
were engaged in "noncanonical readings of canonical texts."
NEED AND NATURAL RIGHT
By 1200 the canonists had created a language in which natural rights
llwories could readily be expressed. Their "speech acts" did not merely
modify existing language; they would lead on to "the creation and dif-
f 11sion of new languages." But one might still ask whether the canon-
";ls themselves defended any specific natural rights. Had they developed
only a vocabulary of words or also a vocabulary of ideas that would per-
·.1st in later discourse? So far we have considered only isolated definitions
••I ius natura/e, only paroles one might say. To answer our question we
·.lmuld need to consider the whole langue, the whole context of discourse,
117. R. P. Vicente Beltran de Heredia, ed., Francisco dt VitoriJJ, Commentari11 a la S«Und4 y-
Santo Tomns, 6 vols. (Salamanca, 1932- 52), 3:64, HJus ergo ... nihil aliud est ni•I
• 1111tl11r tft'
•lloul 11m>CI liret vel quod lege licet.... Patet hoc ex sancto lhoma supra q57 a. I ... Et ita no11
..1111111r illud vocabulum cum loquimur. Dicimus enim: non habeo ius faciendi hoc, id Clll oon
1111111 lin ·t; ilt>m , jurc rnl'O utor, id esl licet, Conradus ... ponit late diffinitionem illiua nomlnm
' " ". . I licit <'rgo quod ju11 est pot~ta11 Vt'I facultas ronvcninui alicui SC'<'undum lt"gf'lt. . . .
1111111 11lf011it io 1wm <lfft>pil ( ·nnr11dm1 I'll <;,•rAont•. .. ." For 11 dt'IAlll'd con11idl'r11tlon of Vito
, ,., ·~ ""'' of /\1111in1u• ,..,.. ,,..lo w. 2.i;t. 6~.
70 THE IDEA OF NATIJRAL R IGHTS
in which the words were embedded, and the ways in which it was trans-
mitted to later thinkers. If we tried to trace out all the threads that led
from the web of medieval rights language to the fully formed natural
rights theories of the seventeenth century we should have to explore
many areas of discourse in which, by about 1300, particular rights were
defended in terms of natural law. They would include rights to property,
rights of consent to government, rights of self-defense, rights of infidels,
marriage rights, procedural rights. (From the thirteenth century onward,
Roman and canon lawyers argued that the basic rules of legal procedure
guaranteeing a fair trial were based on the natural right of self-defense,
not merely on human enactments.) Another major theme would be the
respective rights of individual and community within corporate groups,
a topic long ago touched on by Maitland. Such an inquiry would re-
mind us that the first rights theories were not derived from contempla-
tion of the individual isolated from his fellows-isole sur son ile comme
Robinson 118-but from reflection on the right ordering of human relation-
ships in emerging societies.
A full consideration of all these topics would go beyond the scope
Of uUr pre~nl Ji~ USSiUll . [ \\ i ·uld JiJ P tl1f'rPtnrP In f"np•;1,fl"r J'l<:I "n
ample, concerned with the most fundamental right of all, the right of self-
preservation, specifically the right of the poor to use the surplus property
of the rich to sustain life in cases of extreme need. In this case one can trace
a dear line of argument concerning a specific natural right from the twelfth
century to the seventeenth.
Among the Church Fathers there was some discussion as to whether
almsgiving was a work of justice or a work of charity; 89 but the twelfth-
century canonists had no doubt that strict justice required a rich man to
share at least his superfluities with those in need. The Decretum contained
some striking texts on this obligation: "Feed the poor. If you do not feed
them you kill them." "A man who keeps more for himself than he needs is
guilty of theft." "The use of all things that are in the world ought to be
common to all." "No one may call his own what is common, of which if he
takes more than he needs, it is obtained by violence.... The bread that you
hu!d back belongs to the needy, the clothes that you store away belong to
the naked." 90
Such texts indicate plainly that the rich were considered to have a
duty to the poor; but, as we have seen, for modern rights theorists, to be
88. The phrase is from J. Oabin, " Droit subjectif et subjectivisme juridique,~ Arrhi1lf's dt
philosoph~ du droil 9 (1964): 17-35, at 20. The problem of individual and community in rt>hl·
lion to rights theories is discussed in the chapter below on Gerson.
89. For detailed discussion, with references to th<> t>ar1il'r lllt>ralun•. _,..,.. <; l ·011vrr11r,
pauVllS. O nt-ifs dts droits? ( Pari.\, 1%1).
90. Dist. 116 c.21 . Dist. 4211nfl'l'. l,C. 12 11.l 1·.:Z. fl1•I 47 ,· H
ORIGINS OF NATURAL RIG HTS LA NGUAGE 71
the beneficiary of a duty is not necessarily the same thing as having a
right. Medieval canonists understood this point too. A bishop might have
.1 duty to grant a dispensation when circumstances warranted it, they
pointed out, but the petitioner did not have a right to insist on the grant.
One of the twelfth-century Decretists, distinguishing between duties and
rights in a discussion on the claims of the poor, used precisely the ex-
.1mple of a third-party beneficiary employed in Hart's modem argument.
"If I promise you to give something to someone else I am bound to give to
the third party and I am naturally obliged to him; nevertheless he cannot
hring suit. ..." 9 1 The rich certainly had a natural duty to succor the poor;
it was not so clear that the poor had a natural right that could be asserted
.1gainst the rich.
The canonists first approached this question by asking whether a poor
man in extreme need who took the goods of a rich one was guilty of the
·;in of theft. Characteristically, they addressed the problem first by probing
the inner state of mind of the agent. Theft, by definition, required the
t.1king of something from an unwilling owner. So the poor person would
not be guilty of theft, Huguccio suggested, because "he believes or should
1 • •''(-
hdieve" that the owner would give him permission to take what was
rweded.92 Couvreur maintained that, with this argument, Huguccio "mag-
r~terially concluded from the duty of the rich to the right of the poor."93
Uut it was still a shadowy sort of right, based only on an unprovable hy-
pothesis about the state of mind of the needy person. Huguccio made a
J~rt·ater contribution with a novel argument about the relationship be-
lwl-en common ownership and private property-a persistent, nagging
1•mblem for commentators on the first distinctions of the Decretum.
So far we have considered the existence of private property in relation
'"natural law only as a sort of legal conundrum to be solved by juggling
lhl· various senses of ius naturale. The usual explanation was that common
property was only a "demonstration" of natural law, a primeval state of
.1lf.1irs that had passed away with the introduction of human law or
.1, vine positive law (as expressed in Commandments like "Thou shalt not
·.tc•al," "Thou shalt not covet thy neighbor 's house"). But there was an-
••tlwr whole dimension to this problem for medieval moralists. "The use
••I .111 things ought to be common to all." " No one may call his own what
•11 S11111mn Rnmbl'rgmsis nd D ist. 47 c.8 (Couv reur, 109), ~Nam et si stipulor tibi ml' d atu·
" ' "' X .1lii. lt.>nror quide m dare tertio et naruralitcr obligor illi. Tarrien ille non potest agt'R' '"'
tll.1 \ ..
•1;> S11m111n nil C.12 q.2 c.11, MS Admo nt 7, fol. 243ra. " Ego tamen credo quod non
I''"' • o•t •111is in •~Ii ca!lu, !\Cilict>t cum utitur re alteriull proptt>r urgentt'm ~itatem ...
/.r~ 'I""' .1111 r n"<lit illll .tliwl crrdt>re clominu.:O '""'""°
permi:i..<1urnm .. . 'IU(l ca!lu furlum non com
rntlllhu ·•
0
11 I r' /~1111''.,.._· 1
11
72 THE IDEA OF NATURAL RIGHTS
is common." These texts, attributed by Gratian to St. Clement and St. Am-
brose, spo~e as if common property was a permanent feature of Christian
society, informing it with charity and justice. There seemed an inherent
conflict between the ideal held up by the Fathers and the realities of me-
dieval life.
Huguccio was particularly unhappy with the idea of a natural law
that could simply become obsolete, with no continuing relevance to the
social and moral problems of his own age. Such a doctrine did not fit well
with his own preferred definition of ius as an intrinsic, permanent force
of reason or moral discem.ment in the human soul. At one point he wrote,
"If you want to insist on the common explanation you may say that
common possession of all things is from the natural law . . . that con-
sists in demonstrations."94 But Huguccio did not think this was the real
explanation. He preferred a new formulation of his own which he set out
at the beginning of his Summa and reiterated several times in the course
of the work:
When it is said that by natural ius all things are common . . . this is
the meaning. By natural ius, that is in accordance with the judgment
of reason, all things are common, that is they are to be shared with the
poor in time of need. For reason naturally leads us to suppose that
we should keep only what is necessary and distribute what is left to
the needy.95
"Comrnunis .. . id est communicanda." "Common . . . that is to be
shared." The words were endlessly repeated in later discussions. In this
way of thinking, private property was itself a social institution involving
obligations to others. Property could and should be private and common
at the same time; private in the sense that ownership and administration
belonged to the individuals, common in the sense that worldly goods had
94. Summa ad D.1 c.7, MS Admonl 7, fol. 4ra, "Vel si vellis comm uni expositioni insistett,
dices, communis omnium posMSSio, id est quod omnia sint communia id est de iure naturali, eo
scilicet quod licitum siue fas appellatur, scilicet quod ronsistil in demonstrationibus... . H
95. Summa (Introduction), MS Admont 7, fol. 2va, "Cum didtur iure naturali omnia sunl
communia . .. is est sensus .. . iure naturali, id est iudicio rationis approbante omnia sunt
communia, id est tempore necessitatis indigentibus communicanda. Naturali enim ductu
rationis approbamus nobis tanturn necessaria retinere, reliqua proximi.s indigentibus deber.
distribuere. ... " See also 511.m ma ad Dist. 1 c.7, fol. 3ra, "Communis possessio omnium, id
est rommunicatio omnium que possidemus tempore necessitatis, hoc de iure naturali quod
dicitur ratio.. .."This doctrine of Huguccio, and its incorporation into the Ordinary Clo~
of the D«rttvm was discussed in my Medieval Poor Law (Berkeley and Lo.s Angeles, 1959).
A littl.e later Couvreur returned to the topic and printed a wealth of texts illustrating ttu-
wide diffusion of Huguccio's teaching. See I.Ls pauvm;, 91-106, 141- 154 and, for an t>Xt<'n."lvt'
selection of Huguccio's texts, 290- 296.
ORIGINS O F NATURAL RIGHTS LANGUAG E 73
to be shared with others in time of need.96 And here again, as in Hu-
'~uccio's initial definition of ius, the argument was based on an appeal to
1eason, not specifically to scripture.
Huguccio did not himself use this doctrine to assert a natural right
•)f the poor to the superfluous property of the rich, but its relevance to the
1-;sue was perceived almost at once. Ricardus Anglicus, again discuss-
111g the case of a poor person in extreme need, wrote in the 1190s, "Since
hy natural ius all things are common, that is to be shared in time of need,
lw is not properly said to steal." 97 From this it was only a step to affirrn-
111g explicitly the natural right of the poor. Around 1200 Alanus held
that the poor man did not steal because what he took was really his own
111re nalurali-which could mean either "by natural right" or "by natural
l.iw." 98 About the same time another glossator suggested that the person
111 need could "declare his right for himself." 99 Then Laurentius, followed
J.y Vincentius Hispanus, wrote that, when the poor man took what he
rn'<'ded, it was "as if he used his own right and his own thing." 100 Finally,
tht• doctrine entered the mainstream of medieval jurisprudence when
I lostiensis reformulated it more sharply and included it in his very widely
""'d Lectura on the Decretals. "One who suffers the need of hunger seems
to use his right rather than to plan a theft." 101 And, of course, it was a
11.1tural right that was being discussed.
% . S umma ad Disl. 47 c.8, MS Admont 7. fol. 65 ra, "Quod est commune, id est tempore
"'" ''ssitatis aliis communicandum .... Et secundum hoc idem est proprium et commune,
l''" l'ri11m quoad dominium uel potestatem dispensandi, commune quia aliis commnican-
0lum lt•mpore necessitatis."
W. Gloss ad Comp. I, 5.265 (Couvreur, 92 n. 248), " Nam cum iure naturali omnia
" "'' n •mmunia id est tempore necessitatis communicanda non dicitur proprie furari sed
1·u·111ris altissimi fungi . . . ." Rican:lus was followed by many other canonists. See Couvreur,
., .. '14.
'Ill. Gloss ad Comp. I, 5.265 (Couvreur, 161 n. 280), " . . . quod accipit suum iure naturali
.-1111 1t11r."
' "'· App. Militnnt siquidem ad Comp. I, 5.26.5 (Couvreur, 118 n. 349), " . . . in tali articulo
I" •h ·sl sibi ius dicere sicut et creditor si videat debitorem suum a civitate fugere . . ."
11111. Vincentius ad Comp. I, 5.26.5 (Couvreur, 102), " Hie res ista quam dicebat furari est
· " ""minis, id est communicanda in tali articulo erat, et ideo iste earn accipiendo quasi iun•
•u1u ,~t n• ~ua utebatur.'"
1111. lfostiensis, uctura in V /ibros Decreta/rum (Venice, 1581) ad X.5.18.3, "Unde potius
• •· lo·t11r i.• qui nt'Ct'SSitatem patitur uti iure suo quam furti consilium inire." The text was lalt•r
'" ' hulo-..1 in Johannes Andreae's In quinque Dtcrt talium Jibros novella commtnlaria (Venk<',
1•411 I.''" X. 5. IH-1. Discuss ing the rights theories of a later age, Knud Haakonssen wmtt> 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• mco<lirv.11 tr111lition that <;rolio" would inhrril. St't• M. T
I '" •·v .m.I IC. I l.1.tl"1n111M•n, c•tl• .• A C11/l11r1" of 1<(11111.• (( 'itmhridg<'. l'Jtl I). 2~.
74 THE IDEA OF NATURAL RIG HTS
In modem rights language, we have seen, a right can be defined in one
sense as a "rightful power." This is essentially what the canonists were as-
serting for the person in want. If he used his own efforts to take what he
needed from the superfluities of the rich he was acting rightfully in the
sense that he was not guilty of sin in the eyes of God. But the situation
was not wholly satisfactory from the point of view of the person in want;
the secular judge would probably hang him. We need to consider therefore
whether the poor man also had a "rightful claim." If he did not want
to risk punishment for theft, could he only appeal to the " love or piety or
mercy" of the rich (to use Feinberg's modem language) or could he some-
how demand, claim, insist upon his right? Huguccio doubted that he
could. The problem was that none of the established forms of legal action
covered this kind of case. Certainly the superfluities of the rich were owed
to the poor, Huguccio wrote, but then he added, "Many things are owed
that cannot be sought by judicial procedure, such as dignities and dis-
pensations and alms . . . but they can be sought as something due mer-
cifully for the sake of God and piety."102 This opinion did not prevail
however. Alongside the formal judicial procedures inherited from Roman
law the canonists had developed an alternative, more simple, equitable
process known as "evangelical denunciation.'' By virtue of the authority
inhering in his office as judge, a bishop could hear any complaint in-
volving an alleged sin and could provide a remedy without the plaintiff
bringing a formal action. From about 1200 onward several canonists ar-
gued that this procedure was available to the poor person in extreme
need. He could assert a rightful claim by an "appeal to the office of the
judge." The bishop could then compel an intransigent rich man to give
alms from his superfluities, by excommunication if necessary. The argu-
ment gained general currency when it was assimilated into the Ordinary
Gloss to the Decretum."13 It was, as Couvreur wrote, an elegant solution. "It
provided a judicial sanction for the rights of the poor.''
These canonistic arguments about the status and claims of needy
persons provide an explicit example of an early natural rights theory. Con-
sidered simply as theory, the doctrine was subtle and far-ranging. As with
many supposed human rights nowadays, one can envisage serious dif-
ficulties in putting the theory into practice. But, however that may be,
the canonists' teaching persisted and, from the thirteenth century onward,
it was drawn into theological as well as juristic discussions. Aquinas re-
peated that the poor person who stole in extreme need took what was
really his, but without any overt reference to a subjective right of the poor
102. Summa ad Dist. 47 c.8, MS Admont 7, £ol. 65ra, uRe vera l'is debentur, Sl'd mull•
debentur que tamen peti non possum ordine iudiciario ut dignitatl'!I 1•1 diAp<"nsalionl'll l'l l'I·
emosine, sed possunt peti sicut debentur, scilict>t mi:oerk orditl'r "' intuitu til'i e•t p i,.tatiJt."
103. GI. ord. ad Dist . 47 c-.8. On lhi9 wholl' tlUNllion l't'f' my Mr1l1.-m/ /'•"'' l,,w, :l7 :l'I .md
Couvreut, J.r.; pa111>rr!I, 1011- 115
ORIGINS OF NATURAL RIGHTS l.ANCUAGE 75
person.u>t Godfrey of Fontaines, a little later, was quite explicit. The right
lo the necessities of life was not only a natural right but an inalienable
right:
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 re-
nounced.105
t >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 under-
stood the words of Ambrose given at Dist. 47.106
l :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<ra I :
• •.'. " N;im quilibet in extrema necessitate conslitutus habet ius utendi re consumptibile, :iirw
'I"·' de· h;ic- vita migraret. ..."
I117 CH'1wrl"S, :l: 156, " . . . dicimus titulum naturalem ad quern consequitur jus nutriendi
•, •• p 11~ :ik quod in eju:i nl'C'l'llsilate omnia sibi sint ad hoc communia."
Hiit <"11m111mlarin, :l: :WO, " • . . Sanctus Thoma:>1 dicit quod omnia !lunt communia in l' ...
1..-111.t 11t•fl'H!lilnh•. S i 1.•rR<' ~11111 rommunla, habeo jus ad 11111."
I ll'I s...· I< I l.•11rh1K•'r. l'mhJrmr drr Cari/n~ In drr S1·h1ilr 1~111 5aln111n11ra (Fn•ihorx im Hrrh•·
I\" " · l ' l'>'I)
76 THE. IDEA OF NATURAL RIGHTS O RIG INS O F NATIJRAL RIG HTS LANGUAGE. 77

he has given his Brother a Right lo the Surplusage of his Goods; so that
it cannot justly be denyed him when his pressing Want calls for it. 110

CONCLUSION
I.
~ I
:$.> '
{ '
When the canonists wrote about reason and free will and syndere-
sis 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
Paradoxically, the closest thing we have to a "great text" on canonistic po-
litical theory is Ockham's Dialogus. 111
Carlos Fuentes wrote recently: "There is no creation without tradition;
the ' new' is an inflection of a preceding form; novelty is always a variation
on the past." It is true of course. And yet some variations are of decisive
importance for the future. The semantic shifts of the twelfth century were
or this kind. The medieval concern for subjective rights in practical every-
day life reshaped the language in which discourse about natural right was
conducted. By around 1200 many canonists were coming to realize that the
old language of ius natllrale could be used to define both a faculty or force
1 if the human person and a "neutral sphere of personal choice," "a zone of

Jaw book, Gratian's Decretum. Many canonists included in their lists of human autonomy." But they did not, like some modem critics of rights
meanings a subjective one that explained ius naturale as a faculty or power theories, expect such language to justify a moral universe in which each in-
inherent in human nature. Then, from this primary meaning, various dividual would ruthlessly pursue his own advantage. Like most of the
other meanings, including natural law and natural rights, could be de- dassical rights theorists down to Locke and Wolff they envisaged a sphere
rived by a sort of metonymic association. It seems important that, from or natural rights bounded by a natural moral law. The first natural rights
the beginning, the subjective idea of natural right was not derived specifi- theories were not based on an apotheosis of simple g~ or self-serving
cally from Christian revelation or from some all-embracing natural-law q~otism; rather they derived from a view of individual human persons
theory of cosmic harmony but from an understanding of human nature .1s free, endowed with reason, capable of moral discernment, and from a
itself as rational, self-aware, and morally responsible. This understanding n msideration of the ties of justice and charity that bound individuals to
endured as the basis of many later natural rights theories, both medieval c•ne another.
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 ency-
clopedic 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 pov-
erty 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 <'h<trily ralht•r
than justice. His wo rk reflects both tht" old mt't.lil'vnl tratlili1111 11t1<l tho• rwwl'T .1ttll11tl•"" 111
poverty that were growing up in the s.•vt'nll't'nlh c"t•11111ry
11 1. ( ln Ockham's use o f canonistk sources see my uOckham, the Conciliar Theory anti
11 ... <·.monis ts," /oum al of //rt H istory of Ideas 15 (1954): 40-70. Fo r a more detailed di~u!'l.~ion
,..,. tlw cfotplt•r.1 on ( )c-kham bt"low. llw complex di~ussionB or th!' Dccrcti~ls on thr 1>ri~ln
" ' .c ••Khl to l'"'l"''' Y .uo• ;il!m •·11n!'littPTrd in mon• ti1•l"il in lht•11t• ··hnrh•u. St>t• 1•ttp1>t·iallv
I \"/ 4'•
 T
,.
THREE
..
. . ..
. . . . . .. .
~·
•'
RIGHTS AND DUTIES.
A QUAESTIO OF HENRY OF GHENT
A modem author has observed that, in the "pre-liberal epoch" be-
fore the seventeenth century, people did not think of individuals
"as possessing inalienable rights to anything-much less life, liberty, prop-
erty, or even the pursuit of happiness." 1 The statement is not true, but it is
excusable. There has been much less work on medieval ideas concerning
natural rights than on the classical theories of the early modem era.2 Un-
derstandably, therefore, some modem scholars see the seventeenth-
century rights theories as a radical departure from ancient and medieval
ways of thought; 3 they are content to explain the ideas of Hobbes and
Locke and Pufendorf by reference to some aspect of the intellectual, politi-
cal, or economic life of the seventeenth century itself.4 C. B. MacPherson,
for instance, emphasizing economic factors, inaugurated a minor aca-
l. A. W. Saxonhouse, Womtn in tht History of Political Thought. llncitnl Grttce to Machia-
~l/i (New Yo rk, 1985), 7.
2. By contrast there is a huge body of writing on other aspects of medieval constitutional
thought-<ounsel and consent, representation, the rule of law, resistance theories, church-
state relations-and it is widely understood that medieval thought in those areas provided a
"foundation" for early modem political theory. This is we ll brought out in the far-ranging
s urvey of Q. Skinner, Tht Fouruloticms of Modtrn Polilia1l Thought, 2 vols. (Cambridge, 1978).
3. See, e.g., L Strauss, Natural Right and History (Chicago, 1950), 16S- 166.
4. Good bibliographies are provided by A. Carcia, Thom11~ I fobl>t'~: RiblilJKrnphit lntm111·
lio1111lt dt 1620 a 1986 (Ca~, 1986) and J. S. Yolton 1uul f W Yollun, /01111 l 1lf'kt . A Reftrtnrt
Cuidt (BMton, 1985). For CUl'Nfll lltt-r"turr....,. "/1rr I 1~ A' Nr11.lrilrltr 1 •ml .. llullootln Hobb<>llNlu
An.,,ltin dt Phllc~lhlt (1914~ ).
'/H
RIGHTS AND DUTIES 79
demic indu~try :'h~n he interpreted Locke's teaching that everyone has
a p~operty right m his own person as a reflection of the possessive individ-
uah.s m .o~ early ~ode?' capitalism.5 Michel Villey found an earlier origin
for md1v1dual nghts m the work of William of Ockham, but he too held
that the understanding of a right as a person's "property" in himself did
not emerge until the time of Locke.6
f have already suggested that these approaches are too limited and
that an earlier origin of modem natural rights theories is to be found in the
great sea o f medieval jurisprudence, especially in the canonistic writings
of the late tw~lfth cen~ry. Hence, in considering the further development
of these doctnnes, a ma1or problem is to explain how, in different historical
c?n~exts, later medieval writers of various philosophical persuasions as-
s1m_1l.a ted a~d adapted the language of the jurists in works of theology and
pohh~al ~h1losophy. In the following discussion I shall try to make a small
contnbution to this kind of inquiry by considering a text of Henry of
Ghent from the 1280s and its relationship to later natural rights theories.
A PRISONER'S DILEMMA
In discussing the work of the Decretists, I emphasized the concept of
natural right as a s phere of personal autonomy, where the right-holder
~:ould a:t as ~.e chose. F? r one.modem sc~ool of thought this autonomy or
sovereignty over one s acts 1s an essential constituent of any right.7It has
t•ven ~n argu~d, on the ground of human autonomy, that a right to life
must include a n~t to commit suicide.8 But this way of thinking excludes
.1 whole cla~s of nghts that were prominent in medieval and early modem
ll1ought-~1gh~s that were a lso duties, and that could, accordingly, be re-
)~~rded as ma~1en:ble rig~ts. Of these, the prime example is the right of
:-it lf-prese~ahon; a nd this was the theme that Henry of Ghent took up in
lhc Qunestto that I want to discuss.
5. C:· B. Ma~P~rson, The Political Theory of P~ive Individualism (Oxford, 1962), J. "It•
J'< ~Sf':';s1ve quality is found in_its conception of the individual as essentially I.h e proprieto r nf
lus c•wn person. · · . The relation of ownership ... was read back into the nature of the indi·
vu\ual.h
fl. M . Villey, LA formation dt la ptnsit juridiqut modtrnt , 4th ed. (Paris, 1975), 22..'i -262·
" t.·m. U droit fl Ir.; droils (Paris, 1983), 147. .
7. See e .g . H. I.. A . Hart, Are There Any Natural Rin'-ts?" Philosophical Rtv il"w M (lq'l<;)·
N
17'i 'II . 6'' . .
11. 11. J. McCln1<key. NThe Right to Ufe.'' Mind 84 (1975): 403- 425.
1
' · '11••:
canoni~ls of cour~ condf'mnl"<.I suid<lr and l'('('ognized a nalural right of "<'If ·
l'n·,..·r~.ltH>n - a right to the nl'C~•iti••11 of life• 11ml d rixht to defend om-If if allackc'< I 11111
llwy dJ"'<'ll"-'lt'<I ~u.-h qu1-stion11 In h •rn1H " ' •ixht" 1o1llwr than dulirs. An rmphlll'il' on tllt' duty
" ' "''" pn....•rv.1111111 .1n111t• out c•f ..11,.. -a.. "" 1111• "' "' " '"' ....... d'1im lhat lht'f hn<I n•nourwc.,f ,,11
.1.,.i.1..
 80 THE IDEA OF NATURAL RIGlITS
The immediate problem to be considered then is this: Is there an
inalienable right to life, that is a right of self-preservation that cannot be re-
nounced and that can be exercised in all circumstances? And, specifically,
does a criminal who has been justly condemned to death have a right, or
even a duty, to preserve himself by escaping if he can? Or does he have an
obligation to accept his just punishment? It is another kind of "prisoner's
dilemma."
The problem is as old as Socrates, and it found a place in the dis-
cussions of seventeenth-century rights theorists. Locke was ambivalent on
the issue. He wrote, famously, that every man had a property in his own
person and that property could be defined as "Life, Liberty, and Estate." 10
Humans had a natural right to preserve themselves and a corresponding
right to "Meat and Drink" and other basic necessities of life. 11 But, because
man was God' s creature, he had no right to destroy his own life. Rather
he was "bound to preserve himself."11 Moreover, since he did not have ab-
solute power over his own life he could not concede an absolute power
over himself to anyone else.13 (Locke sometimes used the words "power"
and " right" indifferently in the manner that Villey traced back to Ock-
ham.14) Even if a man sold himself to a master, which he could do under
Jewish law, it was "only to drudgery not to slavery."15 But Locke also wrote
\ in this same context that a criminal could "forfeit" his life and liberty. An
unjust aggressor forfeited his life to the injured party; the latter could lic-
itly kill him or hold him as a slave; the relationship between them was " the
state of war continued." Clearly the captor had a right over his captive.
But, given that there existed a "Fundamental, Sacred and unalterable law
of Self-Preservation," 16 did the captive also have a right to escape? Locke did
10. P. Laslett, ed., /ohn Lockt. Two Trtatisr.; of Government (Cambridge, 1967), 2.27, 305;
2.87, 341.
11. Ibid., 2.25, 303.
12. Ibid., 2.6, 289. It may seem incongruous that the duty of self-preservation should
have been associated with ownership of one's own person. 1n civil law a holder of dominium
was at liberty t.o destroy or alienate his own property. But the law d efined liberty itself as a
freedom to act as one pleased "unless prohibited by force or laww(Inst. 1.3.1). Similarly the
right of ownership was limited by law. ln the later definition of Bartolus, domirrium was "a
right of disposing o f a corporeal thing completely unless prohibited by law.w And of course,
for all medieval and early modem thinkers, self-destruction was prohibited by d ivine and
natural law.
13. Ibid., 2.23, 302, " No body can give more Power than he has himself; and he that
cannot take away his own Life cannot give another power over it." At 2.168, 398, Lockt'
wrote that it was "out of a Man's power so to submit himself to a nother a.-; tn give him a lih·
erty to destroy him.w
14. Evidently a man had the d' / 11dC1 powt'r tu la kr hl1' own lift• I •>1·kc· m<"ant that he had
no rightful power, no right, to do so.
15. Ibid., 2.24, :io.1.
It.. Jhld., 2. 1411, .114~.
RIGHTS AND DUTIES 81
not pursue the point. 17 Discussing an analogous case, he wrote that a mili-
tary officer could justly send a soldier to almost certain death.18 But,
according to his earlier argument, the soldier could not have alienated
his right of self-preservation. It would seem that two sets of rights existed
relating to the same person. G. D. Glenn, who discussed this case in con-
sidering Locke's teaching on suicide, concluded that, "A Lockean gov-
ernment has a right to order a citizen to virtually certain death, and a
citizen has a right to avoid death at all costs." 19
Hobbes was more explicit and unequivocal in considering the right of
a condemned criminal. He too held that a man had a kind of property in
his own Life and an obligation as well as a right to preserve it.20 No law
could oblige a man to abandon his own preservation; hence if a starving
man took food "by force or stealth" he was to be excused.21A government
had indeed a right of punishing, but a criminal had a right to defend his
own life.22 A covenant not to defend a man's own body was void; that
was why "they lead criminals to execution, and prison, with armed men."
If the sovereign commanded a criminal to kill himself or to abstain from
the food needed to sustain life, then even though the criminal was justly
condemned, "yet hath that man the liberty to disobey.''ll In the De Gue
Hobbes explained that the "vindicative" or penal provisions of the law
were addressed only to the magistrate; they obliged the magistrate to
impose a penalty but did not oblige the criminal to accept it.24 Here again
we have a pattern of correlative rights. The sovereign had a right to impose
a death sentence; the criminal had a right to preserve his life.
Pufendorf reached a similar conclusion. In his view the sovereign
possessed a power over the bodies and lives of subjects that was called
17. He wrote only that, if the captive found his servitude too harsh, he had the power to
hring about his own death by resisting his master. But what if he resisted successfully?
Throughout this passage Locke seems to be responding directly to Grotius. Grotius held that,
l><'Cause a person could enslave himself. therefore a whole people could hand itselr over to 11n
.1hsolutjst government. But he also d iscussed explicitly the question that Locke avoided and
lwld that pnsoners enslaved after participating in an unjust war did indeed retain a right to
•·S<·;ipc (Dt j11re be/Ii, 1.3.8 and 3.7.6).
IR. lbid .. 2.139, 380.
19. G. D. Glenn. "Inalienable Rights and Locke's Argument for Limited Government: P<>-
l11 ical Implications of a Right to Suicide,w/ournal of Politics 46 (1984): 80-10!? at 98.
20. T. Hobbes, Leviathan, 2.30, 223, "Of things held in propriety, those that are deart".'lt
•• • .1 man are his own life and limbs. ..."; 1.14, 84. NA Law of Nature, ltx natrm11is, is a prt'·
• •·pl . .. by which a man is forbidden to do that, which is destructive of his life .. . and to
• 1111i1 that hy which he thinks it may best be preserved." (Page references are to Oake9hott'io
... 1&1 ic>n .)
n lhid., 227. 197.
Jl. lhid ., 2.211, 202.
J:I lhid .• 1.14, 111 - '12.
/ '1 11. w,,m•11<l<'r, c•tl.• Dr Cil.11'. Thr f.rrJlli<ilr Vrr~imr (Oxford, lqf\J), 14.7, 1n; 14.21, 1112.
82 THE IDEA OF NATURAL RIGHTS
a "right of life and death." 25 (Here again "power" and " right" were used
indifferently). But Pufendorf also maintaine~ that men _hav~ a natural
right " to do everything that will lead to their prese~ahon m so far as
the right of others is not i..""tjured."26 This self-preservation was, moreover,
a duty commanded by the law of nature; a man had _n o right ~o ~estroy
himself.Z7 Pufendorf considered in considerable detail how this nght of
self-preservation could be exercised in cases of extr~me necessity. If a
man were starving, for instance, "immediate necessity may be 1:"e~ by
taking (food] through force or stealth.''28 As for the cond_emned cnmmal,
Pufendorf held that the magistrate had a power over his body that was
akin to a property right. "The body and property of a sinner is no ~ess in
the power of a magistrate for crimes than is the property of a debtor m that
of a creditor for his debts."29 (Elsewhere, discussing property in general he
defined it as a right in the " substance" of a thing and explained that t~e
same thing could belong to different persons in different ways-for in-
stance one might own the property, another lease it.)30 But, althou~h.the
magistrate had a right to condemn a criminal to d_e ath and the cnmmal
could not claim that an injury had been done to him when he was pun-
ished, still this did not mean that he was obligated to accept the punish-
32
ment.J• Rather he could seek to avoid it "by denial, hiding or flight.''
Quoting Hobbes, Pufendorf repeated that the penal clauses of_the law
were addressed only to the magistrate. They commanded t~e mag1.s trate to
hang a thief; they did not command the thief to ~o voluntanly to his death.
So it was no sin in the thief if he were not hung; 1t was rather that the mag-
istrate had neglected his duty to the state.3.l . .
The problem of the condemned criminal is, as we have sa~d, a~ ar:c1ent
one. Pufendorf indeed quoted the case of Socrates from Plato ~ Cnto m the
course of his discussion. What seems distinctively modern m the argu-
ments we have summarized is the emphasis on the rights of individuals,
25. S. Pufendorf, Dt jurr naturot ti gtntium libri octo (Amsterdam, 1688), 8.~ ~· 791, "Com·
petit quoque summo imperio civili potestas in corpus ac vi lam, ut et bona c1v1um ex causa
delicti; quae presse solet vocari jus vitae et necis."
26. Ibid ., 2.2.3, 108.
27. Ibid., 2.4.16, 176; 2.63, 205.
28. Ibid., 2.6.6, 305, Hsi summa urgeat necessitas ... extra ordine~ ad~atur mag~stra ­
tus, aut ubi tempus id non fert, vi aut danculum erepta re urgens necess~tas d1spella_tu~ The
reference to an extraordinarv ap('f'ill tn the magistrate echoes the medieval cano_:i1sllc doc-
trine that t~ u1 ""'"J wulJ ' i.11:rl·•n· t!1c uffac uf Iii.: juJgc: Utt the.~ .iwvt<, 14.
0
29. Ibid., 8.3.5, 798-99.
30. Ibid., 4.4.1, 363.
31. Ibid., 8.3.5, 798.
32. Ibid., 8.3.4, 795. . I ''""Jiii (I Am.Son, IQl\4); f . 0Aklt•y, "I"'~'"""'" l'ulillr•I 11.,.,,1,~y: Th<' Ah!'lolutr a~tl ( lnlln11ry
33. Ibid., 8.3.4, 796. HErgo non peccat in eo fur, si non !111-"l'''"'lltur. ,,.,1 maKl~trntus. <1111
pmficuam reipublicac animadversionE'm intt'1Tllisit."
RIGHTS AND DunES 83
and the peculiar conception of a right as a kind of property in a person and
at the same time as a kind of power. Also there was the rather complex
notion of correlative rights in the body of a criminal. (The magistrate has
one sort of right, the criminal another.) Finally, the argument was set in a
broader framework of discourse where self-preservation was conceived of
as both a right and a duty and was taken to imply a natural right to acquire
the basic means of life, especially food, if necessary " by force or stealth."
OWNERSHIP OF SELF
Let us turn to our medieval author. Henry of Ghent was one of the
most illustrious masters of the University of Paris in the latter part of the
thirteenth century. He was an eclectic philosopher, usually categorized as
an Au~ustinian or Neoplatonist. In another role he was the outstanding
champion of the secular masters of Paris and the French bishops against
the encroachments of the new orders of friars, Franciscans and Domini-
cans, and against the more extreme claims of the contemporary popes. In
this ~ap~city h~ was one of the founders of what later became theological
-,r Galhcamsm. Like other great scholastic masters he had far-ranging in-
~ terests.34 He wrote, for instance, on issues of economic theory and on the
.. thorny ecclesiological problem of the relationship between scripture and
church tradition. Some of his writings also touched on problems of politi-
cal theory.3s
In his Quodlibet 9, probably written in 1289, at a time when he was
~ieeply inv~lved _in defending the rights of the French bishops, Henry
introduced mto his text a group of questions about superiors and subordi-
ll<ltes. Quaestio 26 is the one that concerns us-"Whether one condemned
to death can licitly flee." His first argument was rather similar to one of
1'u fendorf's.
J4. TheTC' is a substantial literature on each separate aspect of Henry's thought but no
w·nNal work o f synthesis. For an overview of his life and writings see R. Macken et al, cd!I.,
I lr11riri de Candat'O opera omnia, 28 vols. (Leuven, 1979-94), 5: vii-xxviii.
:15 . Henry's political theories were discussed by G . de Lagarde, I.A naissana de l'tspril
. ''"'I"'" 011 dk lin du moytn iige, 5 vols., 2nd ed. (Paris, 1956-70) 2: 161- 213 and M. Wilks, Thi'
l'11•hlr111 of Sovtrtignty in the I.Aler Middle Agts (Cambridge, 1963). Another o f Henry's themes
lf1.1t 1-lC'<'ame a topic of seventeenth-century political theory has attracted some int<'rt':'I,
11
.11111•ly his lr<'atmcnt of pottstas absoluta and poltslos ordinota. Henry was apparently thl" first
1•l11lnsopher to apply this theological distinction to the power of human rulers (aftl"r a !'limi·
l.11 .,,..,~·· by th .. canonist Hostiensis). On this !i<'t' J. Marrone, HThe Absolut<' and Ordaill<'J
I'1 •w1·n• ,,f the l'opt-: An Unroitcd Text of I lt·nry of< ;rn-n1," Mtdion111( Studirs :16 ( 1974): 7 22;
W I <"ourh•nray, .,lw Dfalectic of Di vim•< lmnl1>1•h•n1·1··· in Cownant and Cau511fill( i11 Mrdinral
l"uw1•1'1 ol 1111' Kin.-:· 11•1111111/ 11/ l/rr llbh11v H/ J.fr,,, /•J (l'lfill) 12:1 4f1 t1nd ldrm, C>mn f1~•lr11o·I'.
I,,,,..,,,,,,,_,,,.,,
I 1,,,,., (lth111"11. Ny 1•1,..1
84 THE IDEA OF NATIJRAL RIG HTS
The body of one condemned belongs more to the judge than some other
temporal thing; but it is not licit for the condemned man to take away
any other thing from the judge; therefore it is not licit for him to take
away his body. ...36
But this did not settle the question. Henry explained that several persons
could have power over the same thing in different ways. For instance one
could have property, another use. And if the criminal did not flee when
he could he seemed to bring about his own death which no one could lic-
itly do.l7 The rest of the Quaestio was an etaborate inquiry into the differ-
ent kinds of rights that the judge and the criminal possessed in the body
of the criminal.
The author was especially concerned with rights in cases of extreme
necessity. He began with some juristic distinctions taken from the first Dis-
tinctio of Gratian's Decretum. There were four things to be considered, he
wrote, in defining the powers that different persons could have over the
same thing-fas, licitum, ius, necessitas.31 Fas was natural equity, licitum was
what the law permitted, ius was the equity that gave a claim to something,
what we might call a claim right, necessitas was the occasion or opportune-
ness of using something belonging to another.39 Quoting the Ordinary Gloss
to the Decretum Henry noted here that, when a person was compelled by
hunger, "necessity excuses theft." 40 Each term in the series was of broader
scope then the preceding one, so the last term, necessitas included all the
others.
Equipped with these distinctions Henry turned back to the rights of
the judge and the condemned person. As regards the body of the criminal,
36. Macken, ed., Htnrici dt Candavo optra omnia, 13:307. "Corpus damnati mortis est
maius quid {iudicis) quam alia res temporalis. Sed non licet damnato iudici subtrahere
quamcumque aliam rem. Ergo nee licitum est ei subtrahere illi corpus suum." Macken omit·
ted the word iudicis in his edited text but listed several manuscripts that include it. The word
is ~1<;1' m the tdilio princtps of Paris, 1518. It seems essential to the meaning of the passage.
~- Ibid., 3117, HCum iste abeundo vitam suam posset salvare, remanendo occasionem oc·
cidendi se darel Quod nulli licet."
38. Ibid., 307, "Di.c endum quod plures habere potestatem super eandem rem diversis re·
spectibus non est inconveniens, ut quod u.nus habeat in eam proprietatem et aIius us~m....
Sunt autem quattuor per ordinem se habentia, secundum quae super eandem rem d1versas
potestates diversi habere possunt diversimode, quae sunt: fas, licitum, ius, necessitas, et in-
cluditur semper prius in posteriori."
39. Ibid., 307- 308, HFas est aequitas naturalis qua quis potest uti re alterius absqur
damno et incommodo illius. Ut enim dicitur Decretorum dist. I, par. "Omn~ l~g~:· Ntransirc
per agrum alienum fas est, id est aequum .. .. Licitum est quod a lege indul~m est .... _'u!I
N • "'I'"~ damnati, quin l'I ip!i(>m<'I damn,1111!< similitt>r S<'<'u ndum animam habt-t. Q uantum
est aequitas quae dat actionem rem vendicandi ... ~itll!I r!ll opportumla~ ulen.d1 re
aliena .. . ." See the Ordin11ry Cl°" lo Di!lf. I c.1, " 1"11!1 t'lll, ill f'llt llf'<JUUm • . • Item 1ure d1vlno
licitum est romedere uvas in •Km altrrlm1 . . tam<'t1 11011 ""' 11111. 1<1 '"'' Im• nun dat civill•m
actlonem."
40. H,. dlt•d th<' glt>M tu/~ nm~ . I JM 'It Jto, " N"' """""" 1111111111·~• """t ,, lurh• ..
RIGHTS AND 0UTIES 85
the judge had the power of capturing, holding and killing it; but the crimi-
nal had the power of using his body so as to preserve its life, so Jong as he
did not injure another. This was not only equitable (fas) but licit (licilum)
b_ecause it w_a s permitted by the law of nature, and not only licit but a right
(ws) a~cordmg to the law of nature, and not only was there a right but
J
~.
.i somehmes a necessity of exercising the right. 41 If, for instance, food was
'
withheld from the criminal and he could acquire it by stealth, he had the
power and right and necessity of doing so. (Here and in the subsequent
" discussion the terms ius and potestas were used interchangeably as in the
modem authors we considered). In taking the food he needed, the crimi-
nal would not injure another because in case of necessity all things became
common.' 2 This was another doctrine from the Ordinary Gloss to the Decre-
tu_m; it became a commonplace in later works of moral theology and was
.
6 sh.11 remembered by the seventeenth-century rights theorists.c
The conclusion was that the criminal had an overriding right to pre-
serve his life. The right of the judge over the body of the condemned
person did not exclude a corresponding right in the criminal. Just as the
judge had a right to hold and kill the criminal, so the latter had an equal,
indeed greater right to escape if he could. The right of the condemned
-~
person was greater because the judge was not compelled by such neces-
sity to hold and kill the criminal as he was to preserve his own life. If he
were left unbound, with the door of his gaol open, he ought to escape; not
to do so would be equivalent to suicide.44
41. Ibid., ~, " Diro ergo ad p roposilum quod super corpus damnati ad mo rtem poles·
tatem habet 1udex saecularis capiendi, detinendi et occidendi. Habel autem et ipscm<'I
J amna.tus q~oad animam potestatem super idem corpus utendi eo ad vitae suae in corpor<'
n 1slod1am, m qua cons istit eius perfectio sine iniuria alterius. Et hoc non sol um aequitatt>
naturae quae fas est circa rem alienam, sed quae licitum est. Et non solum licitum tamquam
·' lcge naturae indultum in aliquale alterius praeiudicium, sed quae ius est serundum leg<'m
n.l!urae. Et non solum ius, sed in casu necessitas exsequendi ius suum.#
42. Ibid., 308, "Ut s i oporteret captivum talem mo ri fame nisi acciperet clam contra vnl·
11nlatem custodis sui panem eius, in hoc ha bet potestatem et ius atque necessitat<'m ul<'ndi
• urpore ad panem capiendum et vescendum. Et fit hoc sine laesione alterius, q uia necessil;u•
1.u-il commune quod erat proprium, ut iuste occupanl'i concedatur."
4:l. GI. ad Dt cons. Dist. S c 26, " Et est ratio quia in necessitate o mnia debt>nt essc com mu
""' ... <'I maxime cibaria ut ff ad leq. Rhod. d e iac. 1.2 (Digtst, 14.2.2)." Gro tius rept'all-<l lhh
dodrin<' with a re fe rence to the same text o ( the Digest (Dt jurr ~Iii, 2.2.6). Pufmdo rf q1mh'<t
•h•· opinion of G rotius but did not accept it (Ck ju r~ nnlura~. 2.6.6, 208).
44. Ibid .. JOll- 309, "Sic dico in proposito quod iudex no n tantum iuris habl'I ""I''''
••11i111 h.1 0t' I ill<' iuri~ in d t>tinl'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 <'rt'. •11111111;> 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
86 THE IDEA O F NATURAL RIGHTS
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 re-
gards property in the "substance" of the thing or as regards use, the ex-
ercising 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 pro-
prietas, a property right. Continuing his argument, he asserted that one
was bound (tenetur) to use this right in order to preserve one's life-
but, 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
vinculis et ostia essent aperta, nee adesset impedimentum abeundi et per hoc vitam sal-
vandi, sui ipsius homicida esset, non providendo sibi sicut deberel. w
45. Ibid., 309, " Ad cuius intellectum sciendum est quod supra rem aliquam dupliciter
haberi potest potestas sive ius: una quo ad proprietatem in substan!ia rei, alia quoad usum
in actione aliqua exercenda circa rem. Primam potestatem aut ius nullatenus habet iudex
saecularis super corpus damnati plus quam super animam illius, sed secundam tantum,
quae consistit in tribus, scilicet in corpus capiendo, in vinculando sive incarcerando, et in
occidendo.''
46. Ibid., 309. "Potestatem autem quoad proprietatt>m in sub~tantia C'orpori.~ sola anima
habet sub Deo, et tenetur ius suum in hoc cll:lltod ire absqul' iniurin nltt-riw1."
47. Summll thtologiat, 1.2ae.1.2.
RfCHTS ANO DUTIES 87
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
I It is not surprising that Henry of Ghent should have chosen to discuss
I the moral rights and duties of a condemned criminal. Aquinas had already
;j 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 ar-
gument 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 ar-
gument was not identical with that of any of the seventeenth-century
ti
f
"~
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 ac-
:;'""" quire 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 them-
selves, 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
l<lte medieval conciliarist thought to early modem political theorists.50 But
in this case he relied, not on Ockham or on conciliarists like Pierre d 'Ailly
who were influenced by Ockham, but on the earlier work of Henry o(
48. Quaestio, 309, "Quod custodiret in praeiudicium et iniuriam iudicis, si, cum existell'I
n •rpus in vinculis aul in firm a ta custodia, ut, abiret, vincula disrumperet aut carcerem.. . .N;
Ibid., 310, NSi tamen iudex damnatum dimittat in carcere sine vinculis et negligil firman•
rnrc:erem in quo est damnatus, et sic omittit eicercere circa ipsum ius quod habuit, qui.. nN
' "·d dit nee detinet, absque omni iniuria iudicis, qui nullum ius h.abet in substantiam ror
p n ri,;, potest corpus suum abducere.... Per hoc enim amittit ille ius suum quia . .. non
•"'«"ffl'ndo ius suum, anima exet«'nll' quod potuit et debuit, a iure suo alienatur, hoc llt'gll ·
Krntinl' sune impute!."
4'1. Summa thtt>l~iat, 2.211t•. 611.4
_r.c1. fl. O<lklry, " Nntm111l l ."w, ll1t• ( "11rp11• My•llr·um. nml <:on!IC'nl In Condlinr ll-u111Khl
'" •m lohn ul l',.rl!l !11 Mnlhl"" l IA1111h1•. ·· . .,,,. ulmn '1<1 ( l'Jtll ): 7116 lllU .
88 THE lDEA OF NATIJRAL R IGHTS RIGHTS AND DUTIES 89

Ghent. Almain paraphrased Henry's argument at length and reached a
similar conclusion. "It seems to me that if it is licit for him to flee he is
bound to do so, because by natural law he is bound to preserve the life of
his body." 51 Almain also discussed more briefly a treatment of the problem
by Robert Holcot, a fourteenth century English Franciscan. Holcot was one
of the friars in whom Beryl Smalley discerned "dassicizing" tendencies,
and his argument about the condemned criminal provides another ex-
ample of this approach. He made no reference to the prisoner's rights but
emphasized instead the public welfare, the good of the respublica. Hokot
argued that punishment was not inflicted for the good of the criminal but
for the good of the republic, which in tum resulted from the goodness of
single persons. If, then, the criminal resolved to reform, to abstain from
vice in future, even to give his life for the republic if necessary, it would be
licit and meritorious for him to save himself. This was because more good
might come to the republic through his survival than through his death; it
was possible that more people would be restrained from crime by the ex-
ample of his virtuous life than by his undergoing punishment.52 Almain
thus offered two approaches to the prisoner's dilemma, one a humanist ar-
gument based on classical republicanism, the other a scholastic argument
nality in this area has sometimes been exaggerated. On the other hand, the
twelfth-century Decretists made original and significant contributions to
the shaping of Western rights language. Then Henry of Ghent made his
own distinctive contribution as we have seen.53
A continuous chain of texts connects the idea of dominion of self with
the seventeenth-century doctrines. There are relevant comments, for in-
stance, in Olivi, Gerson, Summenhart, Vitoria, Suarez, and Grotius. Some-
times dominimn was taken in Aquinas's sense of self-mastery; sometimes
the idea of property persisted, especially in discussions on whether a man
could sell himself into slavery._ It is a story that has never been adequately
written. Medievalists sometimes complain that their work is "margJnal-
ized," not sufficiently regarded by scholars working in other fields of
research.54 But in this particular area, the history of natural rights theories,
'• perhaps it is we medievalists who are at fault. We cannot reasonably claim
that our work is neglected when there is still so much for us to do.
I
!'. ·
·~ !

based on individual natural rights. Interestingly, it was the scholastic ar-

gument that persisted in seventeenth-century discussions of the problem.
The language of subjective natural rights has become a central, charac-
teristic theme of Western political discourse. It is important to know when
and how the duster of ideas it conveys grew into existence, what historical
contexts made their articulation possible and their survival likely. A glance
at Henry of Ghent's Quaestio suggests that seventeenth-century rights
language cannot be adequately understood simply as a response to the
contingencies of the early modem era. Rather, it was an adaptation to new
circumstances of a much older tradition of discourse. The key concepts
of the seventeenth·century rights theorists often had medieval origins.
But, in tracing out those origins it is not enough to look at Aquinas and
Ockham. Aquinas had no theory of natural rights, and Ockham's origi-

51. f. Almain, Expositio circa decisiones Magistri Guilfdmi Occam in L. E. du Pin, ed., Jo·
hannes Gnsonii opera omnia, 5 vols. (Antwerp, 1706), 3: col. 1103. Almain' s contemporary at
Paris, John Mair, also disrossed the problem of the condemned criminal but without explicit
reference to Henry of Ghent and w ithout the same emphasis on individual rights. See his /11
quartum Sententiarum quaestiones (Paris, 1519), Dis/. 15 q . 22, fol. cxxiir.
52. R. Holcot, In qual uor Jibros Sentenliarum quaestiones {Lyons, 151 R), 3.1 (no pagination), 'l1. I l<'n ry also d iscussed tlw di~tin.:tion h1•tween a, right and the object o( the' riKht in hi~
"Lex enim nunquid precipit hominem occidi nisi propter bonum reipuhlic:l" .. . fat aul<'m Uw>fililirt 12 q. 21 , C'd cit.. 16: 1119. <)11 thi~ ,..,.. f. V1•raja, IL origirri della rontro!lf'rsia ttV1111xm1 s11/
possibilc in casu quod ista fugiens m<'lion>tur pt>r vitam d 1><·r nwrila qm• ro!<I fadt>I • flll l raltn di .-rn."'1 rir/ XIII !<l'COlc• (R11mr, l'Ui(I)
plusquam per m ortC'm illatam corrigen>tur, t>I t~l po!i.'iibik• quod phm".'1 c·nrri~,mlur t>t ,1 mal••- 'l4. I. l'a th·· rson, ..On lht- MuKln l'••lr11oolt•t111..111. lnHlil' lfi~tory. and Mt'<lit•val S1Udl4•11,"
ficiis retrahanlur per vit,, m !luam 'l'"'m pt•r J111pplki11m 111111111 l'.•K•' 111111111·11~11 Alhl lk d ho" ·;,.,., u/u,,. b~ j 1•r10). H7 11114 I m111lr 111111 h llw """ "' n1mpl11lnt In " I fi••rnn-hy, <·urnM•nt, 11nol
fort'rc>, vid,•lkt•I d.-.-linart• mnr!t•m ro·r 11111,11111 "inr i11i11rl~ f•t11\lllll .. lho· Wt"!<l..rn Tr,,.Htiun." l'oilllto1I I""" II I "I II''"'/) t•lf•,,.,7
 FOUR

THE BEGINNING OF TI-IE DISPUTE

n 1321 Pope John XXJI initiated a debate over evangelical poverty that
[
soon led to a bitter dispute between the pope and the leaders of the
r ranciscan Order.' Rather improbably, the murky theological problems
involved in this controversy gave rise to intricate debates on topics that
would later become central issues of Western political theory; and this is
•-specially true as regards the theory of rights. No participant in the con-
1roversy set out deliberately to compose a treatise on natural rights; but, in
lhe course of the arguments that arose, all kinds of such rights came under
discussion-the right to acquire property, rights to establish governments
.md to limit their powers, natural rights as distinguished from civil rights,
.1lienable natural rights and inalienable natural rights, natural rights that
were also duties, and what would later be called adventitious rights.
In the years around 1300 the understanding of ius as a subjective fac-
ulty, formulated earlier in canonistic jurisprudence, was becoming fairly
widespread. The texts of Peter Olivi, Johannes Monachus, and Henry of
( ;hent that we have already considered suggest a growing awareness of
the richness and complexity inherent in the concept of subjective right;1

I. There is a very large literature on the Franciscan disputes. M. D. Lambert proviJt•11 "
dt•;ir o utline in Franciscan Povrrty. Thr Doc:lnn" oflht Absolutt Powrty of Chri~I and thl' Ap>.lllr.•
111 Jhr f'ranriscan Ordtr, 1110-132.1 (London, 1% I). On tht" o utbreak of the controvcT11y undrr
fuhn XX ll, with C'Klensive furthf'r blhllogr•phy, ~A . Trtb11rmol, Paupt-rla~ Clrri!;li ti DP"f'lcili•
111111 • .l.'idrnll' frnnrt!l<'Qrl(I i n dl""llNC/cmr r 1.171 r.l/fJ Cttonw. 1 ~19(1).
2 Aht1VI', :w 41 . 7H- H'I.

IJ '
 94 THE IDEA OF NATURAL RIGHTS
but it was the Franciscan dispute that first drew this concept into the
center of a major public debate, a controversy involving a reigning pope
and some of the leading inteJJects of the age. The intricate details of the
dispute need not concern us; but, to understand the arguments concern-
ing rights that grew out of it, we need to review briefly the course of the
controversy.
FROM FRANCIS TO 0cKHAM
Soon after Francis of Assissi died, disputes arose in his Order about
the way in which the Rule he had composed was to be observed. In 1231
Pope Gregory IX issued a clarification. The pope declared that, in accor-
dance with the intention of their founder, the Franciscans should own
nothing, individually or in common, but should have only the use of the
things that they needed. In 1245 Pope Innocent IV made this arrangement
more practicable by taking all the goods of the Order into the ownership of
the Roman church. From then onward the pope acted as a sort of trustee.
The Franciscans used the property conceded to them by benefactors, but
they did not legally own anything. Still, disputes persisted, and in 1279
Pope Nicholas III promulgated the bulJ Exiit, which gave a more precise
and very legalistic definition of Franciscan poverty, using the technical
terms proprietas, possessio, ususfructus, ius utendi, and simplex us11sJacti:
In temporal things we have to consider especially property, possession,
usufruct, right of use and simple factual use, and the life of mortals re-
quires the last as a necessity, but it can do without the others. 3
The Franciscans, according to the pope, had given up everything except
"simple factual use." The language of the bull was taken over largely from
the Apologia pauper-um of St. Bonaventure. But, while Bonaventure had
referred to property, possession, usufruct and simple use of fact, it was
Nicholas Ill himself who introduced the phrase " right of using," and so
ensured that the concept of a right would become of major importance
in the subsequent disputes. Pope Nicholas himself had no such intention
of course. Precisely in order to exclude any future controversy he com-
manded that no glosses should be written on his decretal. (The text still
l•
(
stands, bare of commentary, in many early glossed editions of the Corpus
iuris canonici.)
Other phrases used by Nicholas III in Exiit also gave rise to later dis-
sensions, especially a passing reference to the ius poli. The pope wrote that,
3. E. Friedberg. ed., Lim st:clus in Corpus iuris canonici, 2 (Leipzig, 1879), Stxl. 5.7.3,
col. 1113, " Nam cum in rebus temporalibus sit considerare praecipuum proprietatC'm, p~­
sessionem, usum fructum, ius utendi, et simplicem facti usum, C't ultimo tanqui'lm l'W('~~ario
egeat, licet primis carere possit vita mortalia . . . ."
THE BEGINNING OF iHE DlsPUTE 95
although the Franciscans possessed no property from which they could
live, still they were not tempting divine providence because, by the "law of
heaven" (iure poli), they were permitted, like everyone else, to take what
they needed to sustain life in case of extreme necessity.4 Finally, in what
proved to be the most controversial passage of all, Nicholas explained in
Exiit that the Franciscan way of life as he had defined it was also the way
of Christ and the apostles:
This is a way of religious life pure and immaculate before God
the Father . .. handed on by his Son to the apostles by word and ex-
ample ... inspired in blessed Francis and his followers by the Holy
Spirit. . ..5
Exiit became a sort of Magna Carta for the Franciscans. It both confirmed
their Rule and equated their practices with the evangelical way of life
taught by Christ himself.
In 1321 Pope John XXII, for reasons that remain obscure, decided to
challenge the Franciscan doctrine of apostolic poverty (though he always
claimed to be merely "interpreting" the decree of Nicholas Ill).6 The pope
opened his attack by inviting theologians and canonists to debate publicly
the question, "Whether it is heretical to assert that Christ and the apostles
had nothing singly or in common"; and, to facilitate the debate, he revoked
Nicholas Ill's decree forbidding discussion of Exiit. The Franciscans, as-
sembled in a general chapter at Perugia under their minister-general,
Michael of Cesena, issued a public encyclical declaring that the issue had
been settled once and for all in Exiit and strongly implying that John XXII
had no power to change the ruling of his predecessor in such a matter.7
John regarded the encyclical as insolent in form and erroneous in content.
In January 1323 he moved decisively against the Franciscans by issuing
the bull, Ad conditorem.1 On the level of practical administration he under-
mined the Franciscan position by relinquishing papal ownership of the
4. Ibid .• " .. . nee ipsis fratribus iure poli in extremae necessitatis articulo ad providen·
<lum sustentationi naturae via, omnibus extrema necessitate detentis concessa, praecluditur,
n1m ab omni lege extrema necessitas sit exempta.n
5. Col. 1110, " haec est apud Deum et Patrem munda et immaculata religio . .. pt"r eiui<
lolium exemplariter et verbaliter apostolis tradita . . . deinde IX'' Spiritum Sanctum be11t11
Francisco el eum sequentibus inspirata.. . ."
6. Modem theories about John X:XU's motivation are discussed by T. Turley, HJohn XXll
.md th<' Franciscans: A Reappraisal," in Popts, Teachtrs, and Canon I.Aw in thr Middlt A,11~. rd!I
r R. Sw('t!fley and S. Chodorow (Ithaca, NY, 1989), 74-88. Some of the respon1<'!1 to lht· pc>p<·
w 1•re printed in F. Tocco, La quistiont drlla povrrltl ntl StCO/o XIV (Naples, 1910).
7. Thi~ a!lp«t of the contmv1•r11y i~ di!lt't1!1!k'<i in my O rigins of Pa1111/ /1rf11/lif1ih111.
11 '>0 IJfi(). 2nd l-d. (l..eiden, 19Rq)_
,.,,,.,,r
II E. rriNtl"<·~· l'd .• r.xtrlllltl!(flnf,.,. /I , ,•.,,,,,. x XU in Cntpou 1uris 1·t1111,,,in. 2 (I A·lp7IK.
11rl'I)· r:1 rrm• 14 1, 1'nl" 121'1 2'-1 1'111"111111... '"'"'''' ""'"'" ••tllltun ~ l.1nn•nt. ftfflll~l.l(llttlro
f,./11111111.• XX /I (V.ilkrtu l 'Uy, 111" I)
96 TuE l DEA OF NATUltAL RIGHTS
Order's goods. He also presented a theoretical case against their claim to
have renounced all ownership and right of use. Reviving an old argument
that had been used against the Franciscans by earlier critics of the Order,
the pope maintained that there could be no separation of use from owner-
ship in things that were consumed in the act of using them. According to
the law, a right of use permitted one to use something "saving the sub-
stance of the thing." So there could be no such right when the substance
was destroyed by use-as when one ate a piece of bread for instance. Only
an owner could licitly destroy his own property. It would be absurd, the
pope asserted, to suppose that Nicholas Ill had intended to reserve for the
Roman see the ownership of such things as "an egg, a piece of cheese, or a
loaf of bread," while assigning only the use of them to the Franciscans.
Moreover, the pope argued, even as regards nonconsumable things, there
could be no licit use without a right of using. To use something without a
right to use it was simply to act unjustly.
The Franciscans reacted to the pope's decision with dismay and indig-
nation. Their proctor at the papal curia, Bonagratia of Bergamo, protested
against it so strongly that the pope punished his presumption with a
year's imprisonment. Finally, in November 1323, the pope gave his de-
cision on the underlying theological issue of evangelical poverty. In a sol-
emn dogmatic decree, Cum inter nonnullos, he declared that henceforth it
would be heretical to maintain that Jesus Christ and the apostles did not
"have" anything, individually or in common, or that they had no "right of
using" the things that they actually did have or no right of selling, giving,
or exchanging them.9
nus seems a flat condemnation of the Franciscan doctrine of apostolic
poverty, but for several years the leaders of the Order tried to argue, with
various verbal equivocations, that the pope's decrees could be reconciled
with Exiit and with their own Perugia encyclical. Among the Franciscans
at Avignon was the brilliantly innovative theologian, William of Ockham,
who had been summoned from England to the papal curia and there
accused of various unorthodoxies unconnected with the poverty dispute.
At some point a superior, probably Michael of Cesena, commanded Ock-
ham to study the pope' s decretals. Ockham became convinced, slowly
and reluctantly as he later wrote, that the pope was teaching heresy.
Michael of Cesena was coming to the same conclusion. Finally, after an
angry confrontation w ith John XXII in 1329, Michael fled from Avignon
accompanied by William of Ockham and Bonagratia of Bergamo. The
three dissidents took refuge at the court of the emperor, Lewis of Bavaria,
who was engaged in a political dispute of his own with the pope. From
there Michael issued a series of manifestos indicting ns a twrctic " the Lord
9. Exlrov. 14.4, ml11. 12'N< lO.
TuE BEG INNl NC OF T HE D ISPUTE 97
John who calls himself Pope John XXll." The pope replied in the bull, Quia
vir reprobus. Ockham entered the fra y with his Opus nonJJginta dierum, a
very detailed, word by word commentary on the pope's bull.
APPROA CH ES TO 0CKH A M
The Franciscan controversy has often been seen as a source of later
rights theories if only because it stimulated the polemical writings of
William of Ockham, the " father" of subjective rights according to Miche l
ViJley. 10 Yet Ockham himself remains something of an enigma. For Georges
d e Lagarde the venerabilis inceptor was "an awakener of the modem world";
for John Morrall he was "an interpreter and defender of the achievements
of the past.''11 In spite of all the work of the past few decades no consensus
has emerged concerning Ockham's early philosophical and theological
doctrines or concerning his later writings on political theory. Nor is there
an y agreement about the relationship between these different spheres of
his thought; this too remains problematic.
There are several different ways of addressing Ockham's work-
scveral different contexts within which we need to consider it-if we are
to evaluate adequately h is contribution to the growth of Western ideas
about natural rights. One common approach to Ockham takes the last
problem mentioned above as its starting point. According to this view,
Ockham's political ideas can best be explained by placing them in the con-
text of his volunta rist and nominalist philosophy. Advocates of this meth-
odolog y, prominent among them de Lagarde, Villey and, more recently.
Michel Bastit, usually find Ockham' s work to have been radically inno·
va tive and essentially destructive. The Franciscan's "corrosive criticisms,"
lhese au thors assert, both subverted medieval institutions and, in th«:>
world of thought, fragmented an earlier scholastic synthesis. Ockham' s
nominalism, it is maintained, led on to "social atomism" and h is volun-
tarism to a positivistic conception of law as mere command.
Another group of scholars-including critics of de Lagarde and Villey
like Morrall and Kolmel-argue that Ockham's political and ecclesiologi·
m l writings have no necessary connection with h is early specu lativl'
philosophy; they maintain that the political ideas were derived or could
have been derived from more traditional sources.12 These authors usually
IO. M. Villey, LA formation dt lo pm5b juridiqut modrrnt, 4th ed. (Paris, 1975), 226.
11. G. d t:' Lagarde, LA nnis.<;anrr dr ,.,.,.,,,;, lniq11r au dlclin du moytn 4ge, 5 vol11. (1'11riJI.
I 'l'i'1- 6.'\), 5:.'\37. This i11 a l'\"Vi1wd v1•r!\ion or 11 work orig inally publi~ht>d in ~ix v11l11rnM1
ll'.tri!\, 1'H 4- 4"). J. B. Moru ll, "Somr N 11tr" on 11 R1,-..nt Interpretation of Willhu n nf Od..·
1..un·~ rolltki\I Ph ilo!!o rhy," frtt111·/•r1111Sll11fl,. 11 ( 1•14•11 l:l~ 6'1 at ."169.
12 lt>i1t .. W. Klllm l'I, " I )111" N11turn-t hi lwl W lllw hn vo n l kkham," l'rur11 i~l1mi"' llf' Srml1rn
1•, ( 1'1'>1 )· 1'l -14'>, tti.•m . Willtt'f111,..,,, I ~ Ah.!H1 111111 orltr lhdrt•111~ 1/ill~rl1rt1 Srhrlflm ( E.,,...n , 1% 1)
98 THE IDEA OF NATURAL RIGHTS
see Ockham' s work as moderate and constructive. Neither line of argu-
ment has provided altogether satisfactory answers to the questions that
will most concern us. How did Ockham come to formulate a doctrine of
natural rights? And what, if anything, was innovative in his teaching
about them? Villey and de Lagarde wrote extensively, but, it seems to me,
not convincingly about Ockham's rights theories; their critics have not fo-
cussed particularly on the Franciscan's thought about rights but more on
other aspects of his political theory.13
The problem of understanding the relationship between the different
areas of Ockham's thought is complicated by continuing disagreements
about the kind of moral theory that the venerabilis inceptor developed in
his early theological and philosophical works before he turned to writing
on ecclesiology and political thought. Those who see Ockham as a radical
voluntarist emphasize his teaching on the absolute freedom and infinite
will of God. Reacting against a strain of Aristotelian necessitarianism that
had appeared in medieval philosophy, Ockham insisted that the divine
will was entirely unconstrained. In God there was no distinction between
will and intellect. Whatever God willed to do was done justly and well.
And nothing that God willed in regard to creatures was willed necessar-
ily.14 So the whole universe that God had made, including the universe
of moral values, was contingent. By his absolute power God could create
some other universe of values in which it might be virtuous to steal or lie
or commit adultery.15 In the world of human affairs, it is argued, this led on
to a doctrine of law as simply the command of a legislator and of rights as
mere assertions of individual wills. Since the moral principles that guided
human conduct were commands of an inscrutable God, who could change
them ?twill, they could be known only through God's revealed word and
not through any natural law accessible to human reason.16
13. For a moderate discussion of Ockham's rights theory in relation to his nominalist phi-
losophy see A. S. McGrade, "Ockham and the Birth of Individual Rights," in 8 . Tierney and
P.. Linehan, eds., Authority and Puwer. Studies on Mtdiroal Low and Gowrnmmt PrtSmttd to
Walttr Ullm11nn (Cambridge, 1980), 149-65. McGrade pointed to •affinities" between Ock-
ham's nominalism and his political concepts without asserting that the latter views were
necessarily derived from the former ones.
14. Guillrlmi dt Ockhom "P"a plrilosophiai tt theologica, eel. G. Gal et al., 17 vols. (St.
Bonaventure, NY, 1967-88). Opn-a thrologictl 4 :664, " . . . nulla penitus est distinctio inter es-
sentiam et voluntatem nee inter voluntatem et intellectum...."; 3:478, " . . . co ipso quod
ipse (Deus) vult, bene et iuste factum est"; 9:589, "Quidquid Deus agit ad extra, rontingenter
agit et non necessario...."
15. OTh, 5:352, " . . . odium, furari, adulterari et similia . . . etiam meritorie possunt fieri
a viatore si caderent s ub praecepto divino, sicut nunc opposita cadunt sub praecepta.•
16. P. Helm, ed., "Introduction," in Divint Commands and Morality (Oxford , 1951), 3,
"Ockham could consistently only regard ethics as a matter of ~p«ial divine revelallon In
scripture or elsewhere, and not as a matter of natural law rfiM'l'ntrtf lhmuKh rea~11111r «•m-
science."
THE BEGINNING OF THE DISPUTE 99
This seems a coherent argument. But there is another whole side to
Ockham's thought that has been emphasized by several recent schol-
ars. Marilyn Adams has referred to Ockham's moral theory as "notorious
but widely misunderstood";17 and John Kilcullen concluded a recent d is-
cussion by observing simply, "It seems that Ockham's moral theory is
not voluntarist." 18 In fact, Ockham left a complex web of texts from which
modem scholars have extracted a variety of theories. Certainly Ockham
emphasized both divine omnipotence and human free will. But he also
insisted that human reason could provide a reliable and necessary guide
to moral conduct. Ockharn maintained that only a voluntary act could
be morally right or wrong; but he held that, precisely because the will
was free to choose either good or evil, something we know from experi-
ence, the will needed a directing rule other than itself.19 This rule was
right reason. Ockham declared over and over again that any virtuous act
had to be elicited by the will "in conformity with the dictate of reason.''20
Moreover, the exercise of right reason did not involve merely the for-
mation of moral statements; it included also the act of assenting to such
propositions as a source of moral obligation.21 Evidently, for Oc.k ham as for
other scholastic philosophers and for the earlier canonists who had de-
fined ius naturale as a "force of reason" in man, the term right reason did
not mean merely ratiocination (or " reckoning" as Hobbes would put it).
Nor was reason, as in some later voluntarist theories, merely instrumental,
a "slave of the passions," guiding us to the attainment of the end that the
17. M. M. Adams, #The Structure of Ockham's Moral Theory," FranclSCQn Studies 46
( 1986): 1-34 at 1. Adams quoted the view of Helm together with half a dozen similar remarks
from other authors.
18. J. Kilcullen, "Natural Law and Will in Ockham," History of Philosophy Ytarbook 1
(1993)· 1-25 at 25.
19. OTh, 6 :375, " . . . solus actus voluntatis est bonus vel malus moraliter"; 8:410 uma vol·
untas quae potest . . . indifferenter bene agere et male . . . indiget aliqua regula diri~te
.ilia a se"; 9:88, "Potest tamen evidenter cognosc:i per experentiam . .. quod quantum-
rnmque ratio dictet aliquid, potest tamen voluntas hoc velle vel non velle vel nolle." Tht'
works I found especially useful for the following discussion, besides those of Adams and Kil-
" "llen already cited, include: L. Freppert. Tht Basis of Mor1ility According to William of Ockham
(Chicago, 1988); O. W. Clark, "Voluntarism and Rationalism in the Ethics of Ockham," Fran·
,·iscan S tudies 31 (1971): 72-87; idtm, "Wil.l iam of Ockham on Right Reason," Sptculum 48
( 1973): 13-36; K. McDonnel, " Does William of Ockham Have a 1l1eory of Natural Law7"
l"rauciscan Studi~ 34 (1974): 383- 92.
20. OTh, 6:422, " . .. de ratione virtutis perfectae et actus eius est quod elidatur <'<>n-
lunnitcr rationi rectae ... .H; 8:362, "nullus actus est virtuosus nisi sit conformls l't'Ctllf"
1.11i1•ni . ...- ; R:409, - . . . actus recte t>lidatur a voluntale necessario ~uirilur 111iqua ""'-"'"
r.1ti11 in intellectu ....-; 8:410, Hll(ln poh'ltl C'!'llM' rt'Ctu" et virtuoeus nisi habtoal ratiolle'm
rt"(·fnm "; 9:177. 11w l<'fm umoral" R'frr11 tu "11t'llhu" 11uhll'<"ti!t poteitati volunlatiS lll'CUndum
11o1l11rnlc• 1lkh1men rntionl11...."
21 OTh. f.:42'.l, •• . .. 111·tu" clkt11111ll 1111..Urt·lu• 11011 ""' forrnalltt'f rnmplt'xum, M'<I ,.,.,
n 1·ti 11111•,...nllc•mli v1•I cll.111W"11llf"n1ll 1·11111pl.,_11 111111 l11111111ot111 El f"w: Ulo 11C'l11 lllllM'ntlrrnll Jtl'lll'f
nlur pru1lrnlln, 11011 t111ll'1t1 ,.. f11rn 1111tl11111' 1111111•1•"1 ••
100 THE IDEA OF NATURAL RIGHTS
will desired. Rather, the Franciscan philosopher was using right reason in
a typically scholastic sense to mean a "directing rule" of conduct.22 As re-
gards the source of this rule's authority, Ockham held it to be a self-evident
principle of morality (per se nota) that the will ought to act in conformity
with reason. 23 From such self-evident principles (of which there were
many according to Ockham), and from experience, it was possible to build
up a "nonpositive moral science . . . that directs human acts apart from
any command of a superior." 24 All this seems far removed from a radical
voluntarism.
Yet Ockham also held that, behind right reason, stood divine com-
mand as an ultimate norm of morality.25 Modem scholars have found it
difficult to reconcile Ockham's various pronouncements. One of them
concluded that "Ockham has no ethical 'system'."26 At least it is evident
that there are both rationalist and voluntarist elements in his moral theory.
Stephen McGrade even referred to "the rationalism of Ockham's volun-
tarism."27 The point for us is that, when one approaches Ockham's work
by considering the relationship between his early speculative writings
and his later polemical works, it is necessary to consider, not only whether
there was any significant relationship between the two areas of thought,
but also, if that proves to be the case, what elements of his earlier thought
were most relevant for the later writings.
A different approach to the venerabilis inceptor was suggested by Sten
Gagner in an article on Ockham's concept of dominium.28 Gagner pointed
22. The common scholastic understanding of recto ratio as the practical wisdom that
should guide our conduct was rooted in Arislot.le's Ethics. The phrase took on new shades of
meaning when it was associated with the medieval conscirntia and syndertSis.
23. OTh. 9:177, H • •• multa s unt principia per se nota in morali philosophia; puta quod
voluntas debet se conformare rectae rationi, omne malum vituperabile est fugiendum et
huiusmodi.N
24. Ibid., HScientia moralis non positiva est illa quae sine omni praecepto superioris di·
rigit actus humanos; sicut principia per se nota vel nota per experientiam sic dirigunt. ..."
Later on Suarel. saw Ockham as the fountainhead of a voluntarist tradition that based all
morality simply on the will of God. He contrasted this view with another late medieval doc·
trine holding that the moral principles discerned by human reason would be valid even
if there were no God- an argument famously restated by Grotius. Jt may be that both the
later positions were extrapolations (perhaps distortions) derived from diffe rent aspects of
Ockham's work.
25. Ibid., 8:411, n • • • voluntatem d ivinam volentem talem elicere actum conformiter
rectae ralioni •
H 1•11t some familiarity with the pre-existing canonistic orthodoxies.
26. Clark, "Ockham on Right Reason," 35.
27. A. S. McCrade, Tht Politico/ Thought of William ofOclclram (Cambridge, 1974), 195. Mc·
Grade's work is especially valuable because the author gives due weight to the rationalist
side of Ockham's moral thought.
28. S. Gagn~r, "Vorbemerk\Jngen zum Thema 'Dominium' bc•i Ockh..m," Mi~crl/anrn ,,,,..
diatvalia 9 (1974): 293-327.
THE BEGINNING OF THE OISPUn: 101
out that the topics Ockham discussed in his political works were all di-
rectly or indirectly related to juristic problems. He argued therefore that, to
understand Ockham's distinctive contributions, we need to enter the "ju-
ristic thought world" of the Middle Ages. Gagner emphasized Ockham's
rnnstant reliance on the texts of Gratian's Decretum even, paradoxically,
when the Franciscan was arguing that a theologian was better equipped
than a canonist to discuss the points in dispute between the friars and the
pope. Gagner also discussed another of Ockham's comments that helps to
t•xplain this persistent reliance of a theologian on the texts of canon law.
At one point in the Dialogus, when he was about to discuss the rights of
the Roman empire, Ockham's Master explained that, for a thorough treat-
ment of the subject, he would need an extensive library that would include
hooks on theology and moral philosophy and a variety of histories. But
in fact, the Master complained, he had access only to the Bible, the Dec-
rdum , and the five books of the Decretals. 29 The vast majority of Ockham's
rl•ferences are indeed to these sources or to the ordinary glosses on them
that commonly accompanied the text.
De Lagarde also called attention to Ockham's use of canonistic sources,
r ven though he placed more emphasis on the Franciscan master's nomi-
11.1list philosophy in interpreting his political works. The French scholar
1·ven took the trouble to count the citations in one book of the Dialogus.
I le found three references to Thomas Aquinas, twelve to church fathers,
sixty-five to scripture, and three hundred and thirteen references to canon
l.iw.30 As de Lagarde wrote, Ockham "installed himself in the labyrinth of
the Decretum and its glosses" 31 in order to examine afresh the basic prin-
«iples of ecclesiology; but de Lagarde also referred to Ockham's "insidi-
ous subtlety and respectful impertinence." He thought that the display of
1-.m onistic learning served to mask Ockham's true intentions; the Francis-
,-,,n was really subverting the tradition that he purported to expound.32
This, however, is by no means self-evident. When we seek to locate
c >ckham's thought in the world of canonistic jurisprudence that provides
1 •ne obvious context for evaluating it, we need to keep other possibilities in
mind. Above all we need to ask whether Ockham really was a radically in-
novative critic of existing juristic ideas when he shaped his own doctrine
of natural rights. Was he imposing novel meanings on the texts he cited?
c lr simply selecting from existing interpretations the ones most suited to
his purpose? We cannot know whetherOckham was a revolutionary with·
7'I l>ialuxus in M. Goldasl, l'd., M"'11111"hi11 S. Rtlmani imJKrii, 2 (Frankfurt, 1614): :lW. CJ~7
" ' K70_
:lll IA 11ni!<!ian.-r, 4 (1%2), .'\2.
I I. I .a 1111i!1.wr111·r , ~ ( l'lt..1), 2\W
1:• tJI llfll~llll'I', '\ ( 1%.1). 12to
102 THE IDEA OF NATURAL RIGHTS
A further problem here is that we know very little about when and
how Ockham came to study the canon law, or about how extensive a
knowledge he acquired of canonistic literature. H . S. Offler, who knew
Ockham's texts so well, saw this as "a problem awaiting further investiga-
tion";33 but there seems to be no definitive evidence that would lead to a
solution. Often Ockham used arguments that seem to echo some early De-
cretist teaching but without any direct reference to a source or any certain
evidence that he had actually used the relevant text. Ockham certainly
knew at least the Ordinary Gloss to the Decretum of Johannes Tentonicus
and relied heavily upon it. One has the impression that the Franciscan
often had this work open in front of him as he hunted out arguments to
refute his adversaries; but his use of even this source is not always appar-
ent. Quite frequently Ockham gave specific references to the Ordinary
Gloss, but occasionally he quoted it without mentioning his source; and
sometimes it is helpful to know the source in order to understand the point
that Ockham was making.34 Because of various similarities of thought
and language I think that, apart from the Ordinary Gloss, Ockham must at
least have known the work of Huguccio, perhaps through some intermedi-
ary source. One such work that Ockham could have used was Guido de
Baisio's Rosarium, a vast compilation of glosses on the Decretum that rein-
troduced much early half-forgotten Decretist scholarship to the world of
the early fourteenth century.lS
It remains true though that Ockham was a theologian, not a profes-
sional canonist; probably he never acquired a firm grasp of the whole
33. H. S. Oftler, "The 'InOuenct" of Ockham's Political Thinking: the First Century," in
D~ Gtgmtoarl Ockhoms, eds. W. Vossenklilil and R. Schonberger (Weinheim, 1990), 338-65 at
359 n.56.
34. Ockham's use of canonisbc sources is discussed in more detail in my articles,
"Ockham, the Conciliar Theory, and the Canonists," Journal of lht History of Ideas 15 (1954):
40-70 and " Natural Law and Canon Law in Ockham's Dialogus," in J. G. Rowe, ed., Aspects of
Latt Mtdimtl G<nltrnmnit 11nd Socirly. Essllys Presmttd to/. R. lander (Toronto, 1986), 3-24. The
discussion in the text above is based mainly on these two papers.
35. Guido's work was certainly known at Avignon in the 1320s. The Rostlrium was used by
the canonist Z-enzellinus de Cassanis in his commentary on Cum inter (John XXU"s dogmatic
decree on evangelical poverty). Relying on an earlier gloss of the canonist Alanus, which he
quoted from the Rosarium, Z-enzellinus wrote that the pope could create a new article of faith.
This tmqualified assertion proved unacceptable to John's curial advisers, and Zenze!linus was
required to rewrite his gloss in a more discreet fashion. Ockham can hardly have been un·
aware of the dispute. It touched the heart of the Franciscan case and occurred at Avignon
while he was resident there. Oclcham referred to the view of Alanus in his Dialogus (1.1 .14,
421) but without explicit reference to his source. H he did trouble to look up the disputed text
in the ROS11rium he would have found there an ample array of Decrcti11t gl<>lli!t'S on the issues
that came to dominate his later work. I noted a d<JM> Vl'rbn I para IIt'I bctw('('O Ockham 's Brnril ·
oquium and the ROMrium In "Ockham, thl' Conciliar looiry, 1111<.t tlw l'11nnnl"tt1:• 45 . On th<-
dll'lputl' Involving :t..t"nzcolllnu•llf'«' my clrlx111- "' l'111ial /11f11/ll/>llll11, 1•14 •I'\, 27.tl
THE BEGrNNrNC OF THE DISPUTE 103
structure of the corpus of canon law with its major commentaries. It seems
to me likely that, when Ockham began to study the problems of poverty
and property at Avignon, he acquired a fairly extensive knowledge of can-
onistic commentaries on the dozen or so texts of the Decretum that were of
central importance in the dispute and that later he worked from memory
or possibly from a dossier of notes. In any case, if Ockham really did in-
tend to build a doctrine of rights on canonistic foundations, he would not
have needed any vast juristic erudition. Huguccio, together with the ordi-
nary glosses to the Decretum and the Decretals, could have provided all the
sources he needed. And often the arguments of his adversary, Pope John
XXII, who was a professional canonist, would have pointed Ockham
toward the texts he most needed to study. Ockham was not striving to
l·onstruct a political theory or a system of ecclesiology in a vacuum. He
was engaged in a furious dispute with the pope. His own positions were
shaped in response to the arguments, often juridical arguments, of the
l'nemies he sought to vanquish.36
This can remind us of a final context in which Ockham's work has to
he considered, the context of the Franciscan dispute itself. Much that Ock-
ham wrote was drawn from a common stock of Franciscan arguments; a
100 exclusive emphasis on Ockham's personal role can distort our under-
standing of the whole affair. Other participants in the dispute, Ockham's
.uJversaries as weJI as his allies, were also important in developing the con-
l·cpt of subjective rights. The Dominican theologian, Hervaeus Natalis,
wrote interestingly about property rights; so did the Franciscan canonist,
Bonagratia of Bergamo; so did Marsilius of Padua; and so too of course did
Pope John XXII himself. (When, centuries later, Suarez and Grotius wanted
l o discuss the o rigin of private property they did not choose to quote
l >ckham; but they both cited the decretals of John XXU.) I am not suggest·
ing that Ockham's own contribution was inconsiderable. On the contrary,
lhc Franciscan master should always be seen as a figure of major signifi-
c.mce in the history of rights theories; but we cannot grasp the nature of his
rnntribution unless it is set against the background of these other writings.
There are then, several contexts within which Ockham's work can ht•
•·valuated. To understand adequately his ideas on natural rights we m•cd
lo keep in mind especially the three I have mentioned above-the conkxt
•,r Ockham's own earlier theological writings, the context of his canonistic
·;nurces, and the immediate context of the dispute over Franciscan povcrly.
:lt•. Jn OriJ(it1.~ I 01rgul'CI that Cldthnm w111 11'\I hy hi~ ronflkt with John XXll In propo11n1I
11ll11w1'<l 01nd incoh<'n•nt t't•ck~loln"y llut I waa 1·nrn·1·m.-.l then- o nly with his t ..A.-hlnK on
llw lnfolllhility of tlw popt• Ancl th" Mo11111111111111 h I •lo not lhlnl thnl lh" i<11mr n ltld " " ' "I'
plh·io "l'rd lk11lly tu l lo·kh"rn·- tl1<111Khl ••~ 1111 11ah1111l 1l11ht,.

FIVE
,
.........
•,,• • • . ..#_ . , . , ,. ,
LANGUAGES OF RIGHTS
J[ n the foll~w~gdiscussion I want to prescin~
as far as possible from
the technicalities of the argument about FranctSCan poverty in order to
concentrate on a rather formalistic but important theme-the various defi-
nitions of ius that emerged in the course of the dispute and, especially, the
understanding of ius as a subjective power. This is a typical case where
we can understand Ockham's distinctive contribution only by considering
first the arguments presented by some of the other major participants in
the controversy. Especially relevant are the views of two sharply opposed
thinkers, Hervaeus Natalis and MarsiJius of Padua.
HERVAEUS NATALIS, Ius AND P OTESTA S
One of the most influential responses elicited by John XXIl's invitation
to debate the issue of evangelical poverty came from the master-general of
the Dominican Order, Hervaeus Natalis.1 In his treatise, De paupertate, Her-
\ "ilCU!; formul.itcd two urgumcnts th.it I ha,·c ai1~dU} mt!tttionc<l Hl con
sidering John XXIl's case against the Franciscans-licit use of things that
were consumed in use (like foodstuffs) could not be separated from own-
ership; and there could be no licit use of any thing else without a right of
use. Since the actual use of things was necessary to sustain life it followed
that Franciscans and the apostles before them, couJd not have rejected all
1. J. G . Sikes, ed., HHervaeus Natalis: De paupertate Christi et apostolo rum," A rcliivrs
d 'hisloirt doclrilflllt ti lilUrairt du moym ~gr 12- 13 (1937- 38): 209- iq7.
- 104 -
LANCUAC ES OF RIGHTS 105
ownership and all rights. For the purposes of our inquiry the important
point about these arguments is that they led Hervaeus to make frequent
use of words like ius, dominium, potestas, and proprietas. He often associated
the concepts of right and ownership in the phrase ius et dominium, which
he used over and over again almost as if it were a single hyphenated vo-
cable. He also frequently associated the concepts of right and power.
To appreciate the significance of this we need to recall the widely ac-
cepted view of Michel Villey that William of Ockham was the first phi-
losopher to understand the word ius in the sense of a subjective right
and, further, that the semantic breakthrough came precisely when Ock-
ham "resolutely twisted" the idea of "right" to the meaning of "power"
. '
in phrases like "A right is a licit power" (ius est Ucita potestas).1 In fact,
the understanding of a right as a power was common in juristic thought
long before Ockham. But Villey maintained that a new philosophy was
needed to justify such scattered usages before they could form the basis
of a new jurisprudence. In his view, Ockham provided the necessary
philosophical foundation; his nominalism was the "mother" of subjective
right. And this meant further that the modem concept of individual rights
was derived from a philosophy radically inconsistent with the teaching
of Aquinas. In modem discourse, Villey noted, a right means "the power
itself, a quality of the subject, the dominium which he has over things."
But such a definition was impossible within a Thomistic framework of
thought. For Villey the idea of subjective natural rights was logically
incompatible with the objective "classical natural right" that we find in
Aristotle and Aquinas.3
Now Hervaeus Natalis was a faithful Thomist, an ardent defender
of Aquinas's philosophical doctrines against their various critics, a man
"~lowing with enthusiasm for Thomas," according to a modem account.•
But, writing some ten years before Ockham entered the controversy over
l'vangelical poverty, Hervaeus persistently used the same language about
"right" and "power" that we find in Ockham, the language that is sup-
posed to be the Franciscan master's distinctive contribution to the growth
of rights theories.
The relevant part of Hervaeus's treatise was concerned with the queN-
tion, "Whether right and ownership in temporal things can be separa ted
I m m use o f them." To address this question the Dominican first explained
tlw meanings of ownership (dominium), right (ius) and property (proprir-
l11s ). According to Hervaeus each of these words co nveyed the meaning of
2. M. Villt>y, l.11 /ormalron dt> la pt'n.• lr j1iri1liq1u moclt'rnr, 4th ed. (Paris, lcr75), 225 -262, ""
l''"dn11y 247 4q _On Vill<'y'!! vll"WI',..... nhove", ( n . I
1 I /lid., 227, NF.n tout CH . .. IC' 1ln11t ••tl.,...·111 rtd lnKhJut•mmt lncomp111lbh• 11vc•.- l1• clmll
""'""'! d111U1itllH' •
4 1: I l<o••t1111'h, 1'11rl11 '/"h" rr1ld11· .~. h1~il (I 1t1l•111111r, 1UM), 117, •111u llllK M11rlln l :r11hnumn
 106 THE IDEA OF NATURAL RIGHTS
a power to use or alienate a thing.5 But there were different shades of
emphasis. Dominium referred more to the power itself, ius more to the Jicit-
ness of the power, and proprietas indicated that the thing in which a righ t
was held was one's own, not belonging to someone else. Hervaeus also
noted here a distinction between a factual power and a lawful power.
(The Franciscans claimed to retain only a "factual use" of things.} De facto
a person could use something licitly or illicitly; but licit use required a
lawful power. The power to use licitly, Hervaeus noted, meant a "power as
of right" or "the right itself." 6
The argument then turned to the various ways of holding "right
and ownership" (ius et dominium). Here Hervaeus distinguished between
the principal owner of a thing and one wh0 had a right in it. A person who
leased a house, for instance, owned a right to use the house; he had a kind
of dominion therefore as regards the right, though he did not own the
house itself.7 The idea that one could have dominion over a right had been
developed earlier by civil lawyers and Hervaeus was making the same
point.' This seems to be the starting point of the argument about whether
every ius implied some kind of dominium that Richard Tuck pursued in its
later stages.9
Hervaeus went on to consider another problem that was often de-
scribed by later participants in the poverty dispute. The Franciscans often
argued that a person who made use of things solely by permission of
someone else-which was their own position so they claimed~ould use
without having any actual right of use even as regards consumables. A
slave, for instance, used the property of his master, including the food he
ate, without ever having a right to it. And it was the same with a monk in
relation to his monastery or a filiusfamiliae in relation to his father. Her-
5. ~ pauputall!, 235-36, "Quantum ad primum, sciendum quod ista no m ina, 'do-
minium', ' ius', et ' proprietas', idem dicunt in re. Nichil enim aliud dicunt quam habere
potestatem in aliqua re per quam possit licite re aliqua uti vet rem aliquam alienare.. .."
6. ll1id., 236,
ff• posse licite dicit pos,'K' iuri.<i !<ivt> ir,mm in~ "
••
7. ~ paupt!rlall!, 236 .J~ .
8. Digtstum novum (Venice, 1598), gloss ad Dig. 42.5.8, col. 660, "Contintlur: quantum ad
ius, cuius dominus recte dici potest." The same doctrine was expressed by Bartolus on Cod.
4.19.4, " . . . quicurnque habet aliquod ius dominium illius iuris d icitur habere." On the teach-
ing of Sartolus see the important a.rtide of H . Coing. " Zur Eigentumslehre des Sartolus,"
Ztilschrift dl!r Savigny-Stiftungfar Rtrhlsgeschichlt!. RiimiscM Abteilung 70 ( 1953): 348-71. Simi-
larly in canon Jaw the right in a benefice could be treated as a form of duminium. On this see
C. Gross, Das Recht an der Pfriindl! (Graz, 1887), 186-87.
9. ln the 1330s the argument was taken up by ano ther Dominican, Jo hn of Naples, who
wrote in response to Ockham. See his Qulll!Slionts variat Parisi is disputalat {Naples 1618), 359.
" ... habens licitum usum alicuius rei habet necessario eiusdem rei dominium, salkm secun-
dum quid, seu partiale. .. . " Much later, around 1500, tilt- i!l,.UE' was debatE'd l>E'lwttn lhE'
Dominican, Sylvester Prieras, ;md tilt' Franci!K"an. Ang<' lo dt• Cl;iv;u;io. On their vk•w:c ~'t' my
"Tuck on Rights: Some Mt'di.-val l'roblt·m~... / fi.t litr.lf "( 1'11/iti."DI 11mu.11ht t> {l'IH'.1)· 4'.N 41 1\111!
II('(' be-low. 24'.I 45.
LANGUAGES OF RIGHTS 107
vaeus, however, argued that the slave and the monk and the son did have
a right since the master and the monastery and the father had an obligation
to provide them with the necessities of Jife. 10 In this way of thinking, rights
and obligations were correlative; to assert that a person had an obligation
to someone implied that the latter had a right. The situation was different,
Hervaeus conceded, when a permission to use something was held purely
at the will of the owner; but even then the user had a right of use so long
as the permission was in force. Further on, Hervaeus explained that those
who lived on alms did not lack a right in the things they used; it was
just that they held the right by the grace and liberality of someone else. A
subproblem concerned the owner's right to revoke a permission he had
granted. In the case of a thing consumed in use it seemed that the owner 's
right and power to do so endured until the thing was actually used and so
ceased to exist: At the end of the argument, however, Hervaeus explained
that this was to envisage an absurd situation. A person who gave to an-
other the right to use a piece of bread really gave him the ownership of it
without retaining any right for himself. On the face of it, Hervaeus wrote,
it was ridiculous to suppose that a person would give someone bread to
t•at while retaining the right to snatch it away from his teeth. In consum-
;ibles, he concluded, licit use could not be separated from ownership."
Such rather arcane reflections became staple themes in the later litera-
ture of the Franciscan dispute, and Hervaeus continued to pursue them in
. 1 complex and repetitive fashion. For us, however, the main point is not
the substance of his argument about Franciscan poverty but the fact that,
in the course of it, he persistently, almost obsessively, kept on defining a
right as a power and specifically a licit power. "Potestas licite utendi idem
1·st quod ipsum ius," Hervaeus wrote.'2 Here are some more examples
(with emphasis added). "By concession of the owner one has a licit power
of using and this we call a right"; "ownership, right and property all imply
.1 110wer. ... "; "a right is, as has been said, a licit power of using . ...";"to
have a right in that use is to have a power of licitly using.... ";"to have a
111>wer of licitly using is to have a right"; "a power of licitly using is called a
l.1wful power or a right."13
When Ockham in tum defined a right as a licit power a few year~
l.1h' r he was not introducing into the debate some novel concept drawn
Ill. Dr po11perlalr, 238. "Talis cui concessus esset talis usus haberet iu!I in rP 11ihi <'On
, '""!'" _. quia m onasterium, paterfamilia.~ et dominus obligantur monacho, filiofomiliAA rt
'"'' vo .td nt'C"eS.<;ari11 vit11e."
11 . Ibid., 242. " l'rimil enim (rontc- vitlrlur dni11ihile quod aliquis conc~al alkul p1'nf>m
,ul n 1mt'<l<'ndum ct retint'lll flih( hu1lli>tolr"IM'llllt1!1• 1l..ntih11A <'illll . . . in l111i USU pm l ..mpt>,...
11011 :oot•p.tr••hir mm" licitus 11domlnln111 f1' ••
17 ll•itf .• 741
11. ll1ul .• 2:1'\,
h • ol«' 1'tlll4"PPhH,., 1luml11I '"I hl\l'<'I 11lhJt11t<l /~t~~r lldtum 11tr111ft 11111 n•, rl
..... VUt'l\lllll• ,,,~ .. . ) ~. .. , .....1 11111101 1l1•111l11h1111. ,,,. v..1 pn•p• l•ltUI ...., ......., ,~.,,..,.
 108 THE IDEA OF NATIJRAL RIGHTS
from his nominalist philosophy. On the contrary, Ockham himself noted
at one point that the understanding of ius as a Heit power was a position
that had earlier been adopted by his adversaries. It seems quite probable
that he took his "nominaJist" definition directly from Hervaeus, the faith-
ful Thomist. 14
Hervaeus did not invoke any metaphysical premises in the course
of his discussion on rights; his argument grew out of the context of the dis-
pute itself. The Franciscans could hardly deny that they exercised a licit
P:°wer wh~ .t hey used external goods; and if a right were defined pre-
cisely as a bot power they could not reasonably claim to have given up
aU "right of using." This was the argument that Hervaeus suggested and
that Ockham later on set out to refute. But, although Hervaeus saw no
need to appeal overtly to Thomist metaphysics in constructing his argu-
ment, he was certainly not intending to go against the principles of the
revered master whose doctrines he defended so vigorously throughout the
course of his career. Indeed, at the time when he wrote the De paupertate,
Hervaeus was actively engaged in promoting the cause of Thomas's can-
onization at the papal curia. When I discussed Vtlley's work earlier I sug-
gested that, although Thomas himself did not choose to develop a doctrine
of subjective rights, there was nothing in his work that necessarily ex-
cluded such a concept. One can add now that the principles of Thomist
philosophy and the idea of subjective rights were not only theoretically
compossible; they actuaUyroexisted in the work of Hervaeus Natalis. More-
over this was not just a rare aberration. The combination of a professed
Thomism with an acceptance of a rights language derived ultimately from
medieval jurisprudence was characteristic of the greatest thinkers of the
Spanish "second scholasticism," whose works provide the principal link
between medieval and modem rights theories. Hervaeus Natalis was an
early exponent of a position that later came to be widely accepted.
MARSIUUS OF PADUA. Ius AND LEX
Marsilius of Padua is a very well known figure in the history of politi-
cal thought. His role as the most radical critic of the Avignon papacy has
tmr . .. .N; 240.ff• • •ius est, ut dictum est, potestas licite utendi aliquo re•.. .H; 240, f f• • •
habere ius in ipso usu est habere potestatmr licite utendi...."; 240, ".. . habere pottStatmt licite
utendi est habere ius. . ..•; 241, N • potestQS licite utendi dicat potestatem iuris sive ipsum
• •
ill$...•"'
14. Opus non11gint11 diuvm in H . S. Offler, ed., Guillelmi dt Ockham opu11 politie11, 3 vols.
{Manchesttt, 1956-74), 2:559, " . .. iste impugnatus (i.e . John XX:IJ] ponit hie ius utendi es.'K'
licentiam utendi seu licitam potestatem utendi. .. ." There j_, no reason to doubt that John
XXll understood a right to be a licit power, but the pope did not actually use the phrase. On
the other hand Hervaeus Natalis used it repeatedly. When Ockham was commanded to
study the issue of Fra.nc:i9can poverty he could hardly h•vl' ovrrloolcl'd the w o rk of Hi•r·
vaeus, the principal Oom.i nican oppont'nt of the Prancl"'•n J><•ltlu11
LANGUAGES OF RIGHTS 109
often been discussed; but Marsilius has not usuaUy been regarded as an
important figure in the history of rights theories. He did, however, also
make a significant contribution in this area of thought.
In the early modem period, when the idea of natural rights was
moving to the center of political discourse, various writers not only took it
for granted that the word i11s could be used in a subjective sense to mean a
right; they also thought it necessary to discriminate carefully between this
meaning and the other senses of the word. The scrupulous analysis of the
varied meanings of ius, that we find for instance in Suarez and Grotius, has
11ften been seen as a significant step in the development of Western rights
rheories at the beginning of the seventeenth century.15 But, as usual, therl'
were medieval precedents for the early modem formulations. When W<'
1ry to trace them back to their origin we find an explicit distinction bl'-
lween the subjective and objective meanings of ius in Driedo and De Soto,
.md still earlier in Conrad Summenhart who wrote just before 1500.16
Summenhart mentioned Gerson as a source of his defmition of ius but
I his particular distinction between ius as objective law and ius as subjectiVl'
right is not in Gerson (or in Ockham}. Its first overt formulation seems to
have been in the Defensor pacis of Marsilius of Padua. Summenhart wrote:
lus is taken in two ways. In one sense it is the same as law (/ex) as when
we say that the precepts of God are ius divinum and the statutes of em-
perors are ius civile ... In another se.nse ius is taken to be the same as a
power as when we say a father has a right (ius) as regards his son, or a
king as regards his subjects and men have a right (ius) in their things and
possessions. . .. 17
Marsilius presented a similar distinction. He explained that, according to
•me meaning of the word, ius meant divine or human law; but in anothc•r
-;t•nse it referred to a kind of subjective power.
Thus in one sen se ius is the same as lex, divine or human ... . In a second
way ius refers to any voluntary human act, power, o r habit ... in con-
formity with ius taken in the first sense....18
15. The views o f Suarez and Grotius are discussed belo w in Chapter 12 and Chapl<'r \'.\
16. See A . Folgado, Evolud6n historica dtl conetpto dtl dutdto subjtclivo (Madrid, 1%0).
'"'· 1n, t96.
17. ~ ronlrartibus /icitis alq11t illicilis (Venice, 1580), 1.l,1, " ... jus capitur duplicilt•r. llnn
"""'" id<'m ~t quod lex. quo modo accipitur cum dicimus praecepta DPi t"s..'W' jull d ivinum ••I
• u11.'ltit11tiones imperatorum esse jus civile ... Alio modo a ccipitur jus ut id<'m <"Ill q111Mt
1•nlt·~t;,~. quo mo do accipitur cum dkitur patrem habere jus in filium, rcgem in ~uhJi1t111. 1•1
l u11nim~ hab<-r<' ju~ in rebu~ et p<l!\!lf'ftJ1ionih1111 "ui~. . .."
111. R. Scholl~ ed., Mnrsilii dr Pad1111 l "'f~n11or l'u.-i~ (1lano ver, 1933), 2.12.6, 2t.ff. "'Sk IKll"'
"'""111<l11m imam 11ignifkadunt•m lu.• ltlrm r~I 111111tl l1·- d ivinll vet h11m11nA . .. ·· 2.12 .111, 'ltt'J'.
··111dt11r J111lrm iu • Nt't·tm1ln mncl11 1lr 11111111 1111111111111 "' 111. puh'~t11h•, Vf'I h11hllu n111ft1r
mlh•r 11111 .l1et11 !M'nmclum p rlor"m 11111111111111 lu111•111 •• llwn• IJ1 l4t1 •·-r1111cli'tl vrulnn 111 thr
11,.1 1frh11ltl1111 "' I 12 I. 1tt4 llu•w lt•d11 "'" 111•1 tt•••~ l 1111 l1•l11ll hrl11w
110 THE IDEA OF NATIJRAL RIGHTS
Such a text may remind us again that we need to consider other par-
ticipants in the Franciscan dispute besides Ockham when we investi-
gate the history of rights language. But the present situation seems to be
that scholars who are interested in Marsilius are not interested in rights.
And scholars who are interested in rights are not interested in Marsilius.19
Perhaps this is because the work of Marsilius does not fit in well with the
common modem view that theories of subjective rights are essentially
a sort of by-product of late medieval nominalism. Marsilius was not an
extreme nominaJist but an Aristotelian; and modem neo-Aristotelians are
often hostile to ethical or political doctrines based on subjective rights.
Again, Marsilius is often regarded as a corporatist or "holistic" thinker
who constantly emphasized the claims of the corporate community, the
universitas civium rather than those of its individual members. But the
structure of medieval corporations, both in juristic theory and in the day-
to-day life of guilds and communes was not simply " holistic"; rather it
was marked by constant tension and interplay between the claims of indi-
viduals and those of the corporate whole. Medieval lawyers described a
corporation as a fiction of the law precisely because they attributed actual
reality only to the individual persons who composed it.211 Marsilius ac-
knowledged the same point when he noted that the political community
was made up of persons who were "many in actuality and formally sepa-
rate from one another. . .." 21
Another reason, perhaps the main one, why Marsilius's treatment of
rights and dominion has not attracted much attention from modem histo-
rians of rights theories is that the relevant argumentation is contained in a
group of chapters dealing with the convoluted problems of Franciscan
poverty. They seem at first like an obscure eddy, outside the mainstream
of the political theory that has interested most modem students of Mar-
silius. John Marshall, in his sixteenth-century translation of the Defensor
19. Most arguments about Marsilius tum on other questions-what the sources of his
thought were, and whether he favored absolutist or limited government, oligarchy or
democracy. Such issues are discussed in C. Condren, nDemocracy and the Defensor Pads:
On the English Language Tradition of Marsilian Interpretation,n II pmsirro politico 13 (1980):
301- 316. Further extensive bibliography on Marsilius is included in Carlo Dokini, Crisi di
poltri t politologia in crisi (Bologna, 1988) and in the works cited in n.23 below.
20. See P. Michaud-Quantin, Uniuersilas. Expressions du mouvrmtnl communa11taire dans Ir
moyen-8gt latin (Paris, 1970), 206-211. And see below, 212.
21. Defrnsor pticis, 1.17.11, 119, On Marsilian individualism see A. Gewirth, Mnrsili11s of
Padua. Tht Defmder of the Peact, 2 vols. (New York, 1951-1956), 2: 91 , 121, 218. In discussing
the above text, Gewirth discerned in Marsilius "a transition . . . from nominalism to real-
ism." It would be more true to say that his work simply n'ON't<'d th<' mmmon view of lilt'
age on corporation structure. In his introduction to the r>tfr11,..•r t :.•wirth P<'n.'"t'ptivl'ly calll'<l
a ttention to " the distinrtion t>t•twet>n 'o!>i<'t·tiV4'' 11mt 'H11l•]<'<·tlv1•' 1l>thl ·· In Mnr1dli11M. S«>t> Mar
siliu.<fl/ f'adun, 2:1oxv.
LANGUAGE'S OF RIGHTS 111
pacis omitted these chapters as "contaynynge no matter moche neces-
sarye," and Marsilius's modem editor, Previt~on, called them "an
excrescence." 22 In 1970 Jeanine Quillet noted that no modem commentator
had provided an analysis of these "long and important chapters" and that
they had generally been regarded as irrelevant to the main theme of the
work.23 Quillet herself did not associate Marsilius's discussion here with
the growth of later rights theories, but she did show how it fitted into
the whole pattern of his argument. Marsilius was concerned to deny all
temporal power to the pope and clergy. Much of his argument was di-
rected against the claims of the hierarchy to temporal jurisdiction; here he
pursued a complementary theme by arguing against clerical claims to
temporal wealth. Marsilius argued that the practice of perfect poverty
involved the renunciation of all rights to property, that Christ and the
apostles had practiced such poverty, and that it would be fitting for the
dergy of his own day to follow their example. Marsilius was pursuing his
own agenda, different from that of contemporary Franciscan controver-
sialists, but the whole pattern of his argument here was shaped by the
dispute over evangelical poverty launched by Pope John XXIl.
Briefly summarized, the argument about rights ran like this. First of
.111, Marsilius declared, it was necessary to discuss the meanings of the
word ius because this word was needed to explain the other terms used in
the controversy over evangelical poverty.24 Next he gave his first definition
of ius. " Ius then in one of its meanings refers to law."25 Then Marsilius ex-
plained further that "each law is a command or prohibition or permission
of acts that occur under the control of the human mind."26 The notion of
permissive law that Marsilius introduced here was not original with
him-it is found in Roman and canon law sources-but Marsilius's appro-
22 C. W. Previt~on, The Defmscr Pads ofM#rsilius ofPadWI (Cambridge, 1928), xx, 222.
23. ). Quillet, La phr1osophie politiqut de Marsile dt Padout (Paris, 1970), 203. Among the•
more recent studies several do include discussions of Marsilius's views on apostolic poverty.
S1.•e P. di Vona, I principi dtl Defrnsor Pads (Naples, 1974); I<. E. Spiecs, "The Eccleslastk11I
l'overty Theory of Marsilius of Padua. Sources and Signific.ance, n pmsirro polrlico 10 ( )977):
H
'i -21; M. Damiata, " Funzione e concetto della povertl evangelica in Marsilio da Padova,"
Mrdi«VO 6 (1980): 411-30. But these authors are not interested in Marsilius' leaching nn
1ights. Further literature is given in Conal Condren, #Rhetoric, Historiography and Political
ll1t'Ory: Some Aspects of the Poverty Controversy Reconsidered, /ount11I of R~ligious Hi~l"ry
H
1:1(1984), 15-34. See also G . de Lagarde, La n11iss1ma dt l'tspril laiqutau dklin du moym d,1(1',
'•vol~., 2nd ed. (Paris, 1956- 70), 3:329-357.
24. Veftnsor pocis, 2.12.3,264.
2_<;. Ibid .• nlus igil\Jr in una sui 11ignifkatione dicitur de lege... -H Mar.dllull l't'frrml
lu•n• to his earlier definition of lr:r at I . tcl.4, " ... ordinacio . .. habft\s roactivam potendam,
I.I 4~t. de cuiu.~ obst>rvad~ datur pn-t'C'J'lllm, qund qul11 rogitur obetrva,.. ... lex 1'111. H
26. 2.12.:l, 26.';,
H • •• utraqu«' 1..- r•I l'"""'l' lum v..i pmhlblclo aut pt"l'mh111lu • •·tuum
'1'1l prnv1•nl"' 1mnt natl ah lm1,.rl11 m1111ll1 lnm1a1.., " l "f. I lij(nl 1.4.3 aru.t lJ11t :11·.4 of lhr
1i.-, rr-l1m1 Arnf ,..... al•ovr. tt7
 112 THE IDEA OF NATURAL RIGHTS
priation of the idea represents a new departure in his thought. Earlier he
had maintained that Jaw, in its proper sense, was a command or prohibi-
tion of the ruler backed by coercive sanctions. Now, he explained that
permissive law was "an ordinance of the legislator obliging no one to
punishment." 21 For Marsilius, then, permissive law did not compel or pro-
hibit any human action; rather it defined an area of free choice where
the individual could licitly follow his own will. The word "licit," Marsilius
explained here, applied to any act done in accordance with the law (in-
cluding permissive law). Later on in the argument permissive law would
be important as a source of the subjective rights both to acquire property
and to renounce it.
Before turning to that topic, Marsilius had one further distinction
to make about ius understood as meaning law-the common division of
ius into ius naturale and ius civile, natural law and civil law. Marsilius did
not find this distinction very useful. The word "natural" was used equivo-
cally, he pointed out, to mean either those parts of human law that were
common to alJ nations or alternatively the dictates of right reason that
came under divine law. 28 The impJication was that "natural law" as a sepa-
rate category, was superfluous; all the content of natural law was included
either in positive human law or positive divine law. Like some later posi-
tivists, Marsilius went on to develop a theory of rights, including moral
rights-rights that were morally justified but not enforceable before a
human court-without appealing to a doctrine of natural law. He was not
a~uir.6, however, that all rights were just favors conceded by a human
legislator; the notion of positive divine law was essential to his argument.
Turning now to the second, subjective meaning of ius, Marsilius gave
the definition quoted above. "In a second way ius refers to any voluntary
human act, power or habit . .. in conformity with i11s taken in the first
sense. .. . " That is, a subjective right was a voluntary act, power or habit
in conformity with objective law. Such a right could be immanent in the
person of the right-holder or it could be "transient," related to some exter-
nal object; and then it could refer to a thing itself or something pertaining
to the thing like use, usufruct, acquisition, retention, exchange. 29 In this
sense of the word Marsilius explained, we often say, '"This is someone's
27. 2.12.4, 266, "Sunt autem alie quedam ordinaciones non obligantes ad penam ut
actum liberalitatis exercere vel omittere.... Et talia proprie dicuntur lege permissa ... per-
missum vero proprie dicitur ordinacio legistatoris ad penam neminem obligans."
28. 2.12.7-8, 268-269.
29. 2.12.10, 269, " Dicitur autem ius secundo modo de omni humano actu, potestate vd
habito acquisito, imperato, interiori vel exteriori, tam immarwnh• quam lran,w unte in rl"m
aliquam exteriorem, aul in rei aliquid, puta u~um ilUt u11ufrur turn, nr.1111~1.-iorwm, dt•lc•n-
ciont'm llt'U con:'lervadonl'm aut rommutacionl'm, 1•1 r..11,1w• "1111111.. <"o nlormih•r iuri dklo
"t'l"Undum priol"l'm !'li~niri1·1Kiorwm •·
' r.
LANGUAGES OF R IGHTS
right,' when he wants or makes use of something in conformity with ius
in the first sense." Then Marsilius added," And this is what we previously
113
called 'licit'."JO A right then (ius in the second sense) specified an area of
licit conduct allowed by law or a rightful claim to some external good. (In
thus treating ius in its subjective sense as either an immanent power or a
claim Marsilius was deploying two concepts that would often be distin-
guished in later writings as active and passive rights, or rights of action
and rights of recipience.)
Marsilius next undertook to define dominium, ownership, and the re-
lationship between ius and dominium. In its stri.ct sense, he wrote, domini11m
meant a principal power of laying claim to something acquired in accor-
dance with law and of excluding others from it. This power was called
the "right" of some person because it conformed to ius taken in the first
". sense.3 1 Here again there was the association of power and right that
we have already noticed in Hervaeus Natalis. For Marsilius the power of
holding or ownership was necessarily associated with the will of the
owner. Dominion was nothing but "the actual or habitual will to have the
lawfully acquired thing."" To provide for the case of an infant who could
legally acquire property, Marsilius acknowledged that there did not have
to be a positive will to acquire; but a negative will excluded ownership. No
one could acquire dominium against his will.33
For Marsilius, then, dominium was a power of laying claim to some-
thing in accordance with the law. But he had already defined a right (ius in
I
30. Ibid., "Secundum hanc quidem significacionem soliti sumus dicere: hoc ius alirni11s
r~~. cum rem aliquam iuri primo modo dicto conformiter vult aut tractat." Marsilius al~o
'i'
II
!
gave. very brie fly, two further meanings of ius-as the sentence of a judge or as "an act o r
habit of particular justice." He did oot, however, refer to these definitions in the su~urn1
discussion.
31. 2.12. 13, 2.7 0, "(Dominium) significat stricte sumptum potestatem principalem vl'!tdi-
,·andi rem aliquam quesitam iure dicto secundum prim.um modum . . . volentis eciam
nemini alteri licere rem illam contractare absque . . . expresso consensu .. . que siquidt•m
I
ius a licuius dicitur, quon.iam iuri primo modo dicto ronformis.. .."
32. Ibid., " Hee autem potestas nil aliud est quam actuale aut habituale velle sic hat....mli
n-m iure quesilam.... " This was a common theme of earlier Franciscan writing. Stt c;nlft.11,
.. Usus facti" (above 37 n . 84). And see now Brett, Uberty, Right and N11turt.
33. In a final comment on dominium, Marsilius wrote that the word could rell'r to hum.111
will or freedom itself. In this sense dominium belonged to man alone among all C1tht-r n•'"
t11r1~. This kind of domini11m was inalil'll<!ble, and witho ut it there could he no cc>ntn•I 111
n h•m .tl goods (2.12.16, 271 ; 2.13.9, 2111. The argument that every kind of rightful ownniohip
w.ts r<M•tl'd in man's rational control uf hi~ own far ulties, presentl'CI l'arlicr by Aquin11!'I, wn"
,1,•vd o pt'<I furlhl'r in later right" ll11•11ri•'\'C (in 1l1~·u!l1ion..~ about alil'nation t•f Tight" ancl lhr
pos_<;il"tll' t>xisl1•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'<'r""''" 111111111111111 uv111 '11• 11w11 .,.1f ,f1 N'• '"'Kii''"' "n lnKr"lnt'tl ln<llvhlu"I
1.i11 .11 tlw rout 111 hi• th1111Khl
114 THE IDEA OF NATURAL RIGHTS
the second sense) more broadly as any power in conformity with law. He
therefore logically explained that ownership was a kind of right. "Owner-
ship (dominium) is called a right (ius) of someone. .. .34 Later he explained
that, although ownership implied a licit power or right, not every licit
power or right implied ownership. /us and dominium were not identical
terms; rather dominium was only one species of ius.35
Titis distinction was important when Marsilius turned to the problems
of evangelical poverty. We need not follow all the detail of his argument
here. He wanted primarily to maintain that, although all licit use had to be
in conformity with ius (in both senses of the term), this did not necessarily
imply that the user had a right of ownership even in consumables or any
right that could be asserted before a human court. For Marsilius, owner-
ship and use were conceptually separable. One could renounce the one
and retain the other. For instance, one could renounce all ownership of
external goods by a religious vow of poverty; but one could not take a
licit vow to renounce all use of things. This was because to do so would
be tantamount to suicide, which was forbidden by the positive divine
law, "Thou shalt not kill."36 The fundamental right of self-preservation was
also a divinely imposed duty and so inalienable.
On a strictly legal level too there could be use separated from owner-
ship. The argument here relied on the points about permissive law and
about human will as a source of dominion that Marsilius had discussed
earlier. Clearly the law permitted a person to acquire property in various
ways-through a gift say, or through his own labor in hunting or fishing or
some other work. The owner then had a lawful power of using the thing
acquired and also of claiming it against others. But the law permitted re-
nunciation of rights as well as their acquisition. "Anyone can licitly re-
nounce a right intwduced on his own behalf for, according to divine and
human law, a benefit is not conferred on one who is unwilling." (Here
the meaning of ius shifted from a power to a "benefit.") 31 Since ownership
and use were in principle separable a person could renounce the power
of ownership (the power of laying claim to a thing and excluding others
from it) while retaining the power of use (simple use of fact). This simple
use could be considered a kind of "ius in the second sense" since it was
licit, permitted by law. But it was not a "right of using" if that term were
34. Ibid., •;us aJicuius dicitur, quoniam iuri primo modo dicto conformis....•
35. 2.13.10, 282.
36. 2.13.5, '179, • Talis abdicacio est prohibita lege divina eo quod species quedam est
homicidii."
37. 2.13.3, "Ul, " ... quilibet aptus licite patest renunciare iuri pn:i llC' intmducto, quoniam
beneficium non confertur invito, 5eCUndum ~l"f1l humanam lllCJllC' 1livin11m.n M.usiliu" 11(!<(1
referred to "the benefit ofa right" 1112. 12.IS, 271.
LANGUAGES OF RIGHTS 115
understood as a legal power equivalent to dominium .38 Later Marsilius ex-
plained that a man vowed to perfect poverty might catch a fish in the sea
and eat it without ever acquiring dominion over it if he did not wish to
own the fish or to assert a legal claim to it against others.39
In practical day-to-day life there could be licit use without any right of
ownership when a person acted with the consent of the real owner. Here
again the will to acquire ownership was decisive. Even if a donor intended
.· to transfer ownership as well as use the recipient would not acquire own-
ership if he did not wish to do so. Anyone was permitted by law to use
without owning something belonging to another, even to the extent of con-
suming it, if the express consent of the owner intervened.40
Having shown that complete renunciation of all property right was
legally and practically possible, Marsilius went on to argue that Christ and
~
the apostles had indeed made such a renunciation. And so he reached his
desired conclusion, that it would be fitting for ministers of the Gospel in
I
his own day to live in the same fashion and for the church to be stripped of
all its wealth.
Since we are interested in Marsilius's argument primarily as it re-
lates to the history of rights theories, the most interesting aspect of it is not
' the conclusion about the disendowment of the church but the definitions
and distinctions developed along the way. Much of the discourse dealing
specifically with evangelical poverty was not peculiar to Marsilius; like
Ockham he drew on a common stock of Franciscan arguments. But to base
the whole discussion on a formal distinction between ius as objective law
and ius as subjective right and then to sustain the distinction consistently
through the whole course of the ensuing argument-this does seem origi-
nal with Marsilius. Fourteenth-century jurists understood of course that
the word i11s was polysemous-we have mentioned earlier the two dozen
definitions of Johannes Monachus-and they knew it could have the two
principal meanings we have been discussing. But they did not distinguish
sharply between them as did Marsilius and many other rights theorists
.lfter him. Often, in juristic discourse, the word drifts from one meaning to
the other in a single sentence without any apparent confusion of thought
33. Ibid .•# ••• potest licite renunciare patestate vendicandi ... non renunciata poll'Sf,\I<'
u tt'ndi ... qui siquidem patestas cadit sub iure dicto iuxta secundam eius significarionrm. El
vncari solet ab aliquibus simplex facti usus sine iure ulendi; per ius utendi sumentibu!I J o·
nlinium. .. .u
:N . 2.14.20. :l 19.
40 2 IJ.8, 280; 2.14.20, J20, Marsilius ;i~t11•rl thus: if a f'l'™'" with only a right of us.• .11·
111.11ly n m suml"J somt>thing belonging lo J1nm••ono• cl~· w ith thl' own<'r' s m n!O('f•I, hP 1lld nnl
.1n111irt• 1lomi11i11m or illicitly dt'J'riYC' th.- 11w1wr nl 1lonrrniu111. Thi• owner could 1mly inh•nt1 h•
n ·t.1in d11n11ni11111 of n thinK !1<1 lonK llM It t'd•lr.C Who•u ii c'c"'"'"i tn t•xi.'11, t•vlilo•ntiy nu o rw Willi
,,,.,,,,,,.,,
116 THE IDEA O F NATURAL RIGHTS
but also without any explanation to the reader. Thus, even when he was
ostensibly distinguishing between the various meanings of ius, Johannes
Monachus could write, "Ius . . . accipitur . . . pro potestate a iure intro-
ducta" which we should have to render into English as, " A right . . . is
taken . .. for a power introduced by law."41 Similarly Bonagratia of Ber-
gamo, a canonist by training, declared that a person could renounce "omni
iure privato, quod a.licui competat ex humano iure," "any private right
that belongs to one by human law." When Marsilius, writing a couple of
years later, wanted to make the same point he carefully used ius for the in-
dividual's right and leges for the laws that defined it (and when Marsilius
did use ius to mean law he carefully wrote "ius in the first sense").42 Per-
haps just because he was not a lawyer, Marsilius found it necessary to spell
out for himself a distinction that was implied in the legal texts but so taken
for granted that it had not seemed to call for any analysis. Yet it was es-
sential for the distinction to be made if a coherent tradition of discourse
concerning subjective rights was to grow up. And it was Marsilius who
first insisted on the point.
Presumably medieval lawyers knew when they meant "law" and
when they meant " right" in using the word ius, though there are occa-
sional ambiguities in their texts for a modem reader. One has the impres-
sion that sometimes an author was not making any careful discrimination
in his own mind, but perhaps implying both meanings at once. Marsilius,
however, always discriminated meticulously, and when he intended both
meanings he said so, often in rather tortuous prose. For example:
It is apparent from these statements that not all power that is licit or de
iure, in the first or second sense (of ius) or both, over a temporal thing or
over its use is ownership, although, on the other hand, all licit ownership
(in the three legal senses already mentioned) of a thing or its use or both
is a licit or rightful power.43
De Lagarde found such "mental algebra" merely tiresome and it certainly
makes for a tedious literary style; 44 but Marsilius was laboring to make ex-
41. CIOSSll aumi ad Sat. (Paris, 1535), ad 1.6.16, fol. xci (see above, 40).
42. Bonagratia de Bergamo, Tractatus d~ paupatat~ Christi tt apostolol'llm, ed. L Oliger in
Ardtivum Frandscanum historicum 22 (1929): 292-335, 487-511at503, "Cerium est autem quod
omni iuri privato, quod alicui competat ex humano iure, potest quis renunciare.... " Cf. Mar-
sili us 2.12.15, "Potest enim quilibet renunciare licite iuri pro se introducto secundum
humanas leges . . .N
43. 2.13.10, 282, HEx hiis itaque apparere potest quod non omnis rei tempnrilli~ ilUI eiu_q
usus potestas licita seu de iure primo aut secondo modo dlrto vd lllroc1111.•, sit J ominium,
quamuis econveno dominium omne licitum !t4'<'11m1um l11m 1lkh•N In.,. """'"" lt·~nlc.,. . . _11it
pot<'~l<'lll lidtil !l('U d<' iun- i.1m dklo.'"
44 I a 11ni .<.' illl ll'I" dr l"r:<pril lnt.111,. .l · 50
~
.I
I
LANGUAGES OF RIGHTS 117
plicit a distinction between two meanings of ius that many subsequent
rights theorists would also want to emphasize.
If we could "unpack" all the implications of Marsilius's dense lan-
guage-it would take a longer discussion than is possible here-we
should find within it many strands of thought that were woven into later
rights theories. The idea of self-preservation as both a right and a divinely
ordained duty and so an inalienable right, which had been explored earlier
by Henry of Ghent, recurred prominently in the classical natural rights
theories of the seventeenth century. The distinction between ius under-
stood in a subjective sense or an objective sense remained important for
Suarez and Grotius; and the delineation of the relationship between the
two meanings still persists as a characteristic feature of some contempo-
rary forms of discourse on rights. Thus Jean Dabin wrote that, in the
language commonly used nowadays, " droit subjectif" is opposed to "droit
objectif." He explained that, "Le droit objectif en ce sens, designe le regle
de droit (Recht im objektiven Sinne), tandis que le droit subjectif, (Recht
im subjektiven Sin11e) signifie une certaine prerogative etablie ou reconnue
par le droit objectif au profit d'un individu...." 45 This was the distinction
that Marsilius repeatedly emphasized. Late medieval voluntarism, "the
displacement of Reason in favor in will," 46 is often seen as a source of
seventeenth-century rights theories and Ockham is commonly regarded
as the fountainhead of this tradition; but in this area of thought Marsilius
was more voluntarist than Ockham. For Marsilius everything depended
r
:.0 on the will to assert or renounce a right. Ockham's corresponding argu-
ment that there could be licit use without legal rights relied more on a con-
li,., cept of natural rights associated with rational natural law. Marsilius would
have agreed with Jeremy Bentham that, "From real law come real rights"
and that such rights could be derived only from positive human law or
': positive divine law, from the will of a legislator.47 (But of course rights
theorists who believed in real natural law, could also defend a doctrine of
real natural rights.)
In emphasizing permissive law as a locus of rights, Marsilius was
contjnuing a line of argument that the Decretists had developed earlil•r
and that would persist until the time of Christian Wolff and beyond. The•
understanding of a right as an area of autonomy defined by law which
we find in Marsilius, an area where the will of the rightholder prevailt..>d,
still characterized the school of Savigny in the nineteenth century. Hut
Marsilius also treated a right as a "benefit" protected by law, an altcmatiVI'
45. J. f)abin, I.I' dmit .cuh/«11/ (1'1ulJ1, 111'\2). 2.
41>. M kh.,<'I 011kMlholl. lntro1ludl1111 tu /.,-11111ll1r111 (l lkfnnl. 1946), llll.
<17. '" l\n11n·hin1l llnll••·h•,.,'' lu I lt11w1t1111, 1•11 • .,.,,,. W11rh r1( ''""'!I Rmlhnm. 11 vol~. (E1ll11
hurKh. IK41). ·1. 4H<I '\J'f l\I '\11
 118 THE IDEA OF NATU RAL RIGHTS
approach emphasized by Ihering and his school. Marsilius was, in effect,
conflating two theories of rights which are nowadays called the "will" or
"choice" theory and the "interest" theory.48 The two doctrines are com-
monly traced back, respectively, to Kant and to the Utilitarians; but they
obviously have deeper roots in Western thought. 49
WILLIAM OF OCKHAM. /us POLI AND IUS FOR!
A glance at the work of Hervaeus Natalis and Marsilius is enough
to suggest a need for some reconsideration of Ockham's role in the de-
velopment of rights theories. Although it is no longer so fashionable to
regard the whole of Ockham's political theory as a novel structure based
on his nominalist philosophy, the Franciscan is still rather commonly
regarded as an innovator who first imposed a new subjective meaning
on the word ius. John Finnis for instance mentioned " the novel definition
of ius developed by Ockham." Similarly Dario Composta referred to a
" transformation of the concept of right in Ockham," and Louis Dumont,
after characterizing the English Franciscan as " the systematic expounder
of nominalism," called him also "the founding father of the 'subjective
theory' of right." Dumont further saw Ockham as a voluntarist for whom
law was simply " the expression of the 'power' or 'will' of the legislator."50
The truth seems to be rather different. Ockham took over his subjective
definition of ius from the earlier literature of the poverty dispute or from
respectable canonistic sources; and, we shall see, he persistently empha-
sized right reason rather than mere power as the criteria of just law and as
the basis of natural rights.
48. On a similar conflation of the "choice" and " interest" theories in Ockham, see below,
189.
49. Although there are many apparent echoes of Marsilius' tho ught and language in
later works it is not always easy to trace his direct influence. One difficulty is that Catholic
authors usually referred to Marsilius by name only whm they inte nded to criticize him;
when they wanted to borrow his ideas they preferred not to mention such a questionable
source. Some good examples of this are given by P. Sigmund. -me Influence of Marsilius on
Fifleenth-Cmtury Conciliarism, ~ Journal of tht H isl ory of ldtns, 23 (1962): 393-402. For refer-
ences to Marsilius in Suarez and Grotius see G. Piaia, Marsilio de Padova ntlla riforma t nelln
I n ·ding juristic tradition.55 Like Bonagratia of Bergamo and earlier canon·
j
contrariforma (Padua, 1977). 222-225, 261-268.
50. J. Finnis, Natural Law and Nalural Rights (Oxford, 1980), 228; D. Composla, " II concetlo
di diritto nell' umanesimo giuridico di Francesco de Vito ria 0 .P.," in C. Soria, ed., / diritli detr
uomo t la pact nd ptnsiero di Francesco de Vitoria t Bartolomi de Las Casas (Milan, 1988), 276;
i 5 1. Opus 11onaJli11tn ditrum in Opera politico, vols. 1- 2, 562 lhere after O NO!.
L Dumont, Essays on lndividwdism (Chicago, 1986), 63-65. All three authors rt'ft•rred to Villey
as the source of their views. G. Samuel, also relying on Villey in hi11 Jisc11s.'iion of rights,
refe rred to a " nominalist revolution." See his "Epistemology, rror;igamln .m.t Roman l.<1w:
Some Refll'Clions on the History <•f thr Suhj('(·livr Righi." /1111111111 ••f''ii'.'''
llr<tm v Ill ( l'IR'I):
161 . •q .111 74.
LANGUAG ES O F RIGHTS 119
After reading the careful distinctions of Marsilius it seems natural to
ask how scrupulously Ockham distinguished between the subjective and
objective senses of ius. The answer is at first sight rather surprising.
Ockham never considered the question; he never gave it a thought_ In the
Op11s nonaginta dierum (henceforth OND), his first response to John XXII,
and in his later writings, Ockham would shift from one meaning of ius
to the other as his argument required without ever explaining or appar-
ently noticing that he was using the word equivocally. He would write
casually, for instance, "habet ius utendi ex iure naturali," which seems
to mean ". . . he has a right of using from natural law."51 Again, when
Ockham discussed the way of life of the apostles, he wrote, "utebantur li-
centia iuris naturalis seu iure naturali ... ," which one could render as,
"they used a license of natural law or a natural right . . ." 52 Another typi-
cal example occurred when Ockham discussed a key text of Augustine on
the origin of property in human law. Ockham wrote:
Verum est quod loquitur de iure agendi cum dicit: Quo iure defendis villas
ecclesiae? Et etiam loquitur de iure possidendi . .. quia ius civile etiam
dominia rerum introduxit.53
Clearly the ius agendi and the ius possidendi are rights, while ius civile refers
to civil law, and Augustine's Quo iure could be rendered in English a!I
either, "By what right .. . ?" or "By what law .. . ?" Marsilius would
have carefully explained how ius was to be understood at each occurrence
o f the word. Ockham, on the other hand, simply juxtaposed the different
meanings without any clarification. Even when Ockham deliberately S('t
out in the Dialogus to distinguish three different meanings of the term i11~
naturale, he still did not call attention to the subjective and objective senSt's
of i11s, but again shifted from one meaning to the other without any expla-
nation to the the reader. 54
Usually it is not very rewarding for a historian to ask questions of a
text that the author had no intention of addressing; but sometimes thc>
.lUthor's unarticulated, taken-for-granted assumptions are as significant
ns his overt arguments. Ockham's assumptions about the subjective and
ohjective meanings of ius were the entirely conventional ones of the pn•-
c;z. oNn,:.m .
<;J <>NO, 6f.7.
<;4 /)i111'ix11~, J 2.J.6 On lhi~ lt••I ~.,. t..•luw. 175ff.
55. Tlw unrc•flt'<"livl' ~hl(t Imm lh•· nh~···t ivr to thl' ~uhjf'<"livl' m1•aning 111 iu,· wll•
, ommon in juri:otic cli:on>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!<.-lrrifl /dr llfl
""""' I 1111x r (S t11llK111 I, 1'1'11>, 1•11 Jll4 N1111 oil•• 11•••·•1 ''"I"'' l11tly " l'""~"K,. 11l l lc10tl••t10l11 In
 r111 T11E Inf.A OF NATURAL RIGHTS
ists Ockham knew that the word could be used in both senses; but to him
the fact was self-evident and entirely unproblematic; it did not call for
any e~t~nded comment or scrutiny. We should perhaps not find this too
surpnsmg..The English word "right" also has many meanings, but, in
everyday dtSCourse, it does not occur to us that we need to specify which
particula~ m~aning of the word is intended each time we use it. Normally
~e meanmg tS conveyed by the context. This is the kind of usage we find
m Ockham and in many earlier writers. It would not call for any comment
except that Ockham has so often been re6arded as the author who first sin-
gled out and elucidated the subjective meaning of ius, and defined this
meaning in terms of a new philosophical vocabulary. There really is no
such argument in Ockham's work When he did use ius in the sense of a
right he explained the term by referring to the standard canonistic com-
mentaries that were available to him, the ordinary glosses to the Decretum
and the Decretals.56
Although Ockham was not interested in the formal distinction be-
tween ius as Jaw and ius as subjective right that Marsilius presented, he
emphasized another distinction that Marsilius had never really explored.
The Paduan master did not develop any theory of natural law or of rights
related to natural law; he was interested only in positive rights. For Ock-
ham, on the other hand, the distinction between positive rights and natu-
ral rights was aU-important.
One reason why Ockham emphasized this distinction more than his
predecessors arose out of a technical point of contention with John XXII.
Ockha.m thought it necessary to prove that the pope really had attributed
to Christ and the apostles a legal right, enforceable in the civil courts, when
he wrote that they retained a ius utendi, a right of using. This is most prob-
ably what John had meant all along, and this is how the Franciscans had
always understood him.57 But in the bull Quia vir reprobus John pointed out
that~ in his dogmatic decree Cum inter, he had not explicitly asserted that
Chri~t and ~e apostles held any positive legal right, or specifically a right
to bnng suit: he had declared only that they had a ius utendi, a right of
his Summa Rurto (Lyons, 1537) on X.1.9, fol. 26va. For another similar usage in Hostiensis see
his Commmtllrill lld Dtcrttll/es (Venice, 1581) ad X.1.2.7, fol. 9ra. Here the author referred to a
"ius quod omnibus rompetit de iure naturali" and a " ius de iure civili proveniens."
56. OND, 559. See below n . 61. At the beginning of the OND Ockham defined nine terms
prominent in the povet1y dispute including usus iuris and ius 11trndi. But even here it did not
occur to him to distinguish between ill5 as objective law and as subjective right. Instead, we
find. the ~s~al unreflecting transition from one meaning to the other in a phrase like " in -
veruatur tn 1ure . .. quod omnis servitus est ius utendi.. .. (303).
#
57. In Cum into John referred to a right of 9elling, donating, or ~xc-hanging, which rer-
tainly seems to imply civil ownenhip. Indeed, if John ditl not lnl1•n•t ..11 Along to maintain
that the holding of legal rights was compatible wilh "P"'"tnlk rovrrly II 1,. h1mt lo !U.'C' why
the dispute should h1vt' ari!M'n nt all.
l.ANG UAGF.S OF RIGHTS 121
using, without defining what kind of right. This seems to have been
merely a debating point because later on in Quia vir reprobus John argued
that the apostles did in fact own things for which they could sue in court."'
Still, Ockham felt obliged to prove over and over again that John had
always held this position and had intended to assert it in Cum inter. And
the argument he presented made it necessary for him to distinguish for-
mally between natural rights and positive rights.
Ockham's argument ran like this. John XXII claimed to be interprC't-
ing Nicholas Ill's decree on Franciscan poverty, Exiit, and to be discussing
the right of use as it had been understood by his predecessor.59 But, when
Nicholas wrote of the ius utendi that the Franciscans had renounced, hl'
did not refer to a natural right (for he considered that the friars retained a
natural right in case of extreme need). Therefore Nicholas used ius utendi
to mean a positive legal right; and, accordingly, when John XXII used
the same term, he too must have referred to a positive legal right. In Ock-
ham's words:
Every right or using is either a natural right or a positive right. . ..
(Nicholas) did not take right of using for a natural right. Therefore he
took right or using for a positive right.60
-
The term that Nicholas III actually used in defending the friars' right
.' in cases of extreme necessity was ius poli, the law of heaven or right of
heaven, a phrase taken from a letter of Augustine included in the Deere
tum. Because Nicholas happened to employ this term instead of the more
common ius naturale, Ockham in tum often used the same expression.
Ockham's purpose all the time was to argue that the Franciscans did
not have any legal right to the things they actually used. So, after explicat-
ing the terminology of Exiit, he continued to elaborate his distinction
bC'tween positive rights and natural rights. A positive right of using wa~
simply a licit power as regards some external thing, he wrote. It was es-
tablished by statute or human agreement; the holder of such a right ought
not to be deprived of it without fault or reasonable cause; if he were so dt·-
prived he could sue for his right in court. This was a legalistic definition
of a right, supported by references to the ordinary glosses of the Vrm·
~- Q11i1111ir uprob11s in C. Eubel, ed., B11/111r111m Franciscan11m 5 (1898): 432, 446. llw wht1lo•
1.. xt of Quill vir "Probus is included in Ockham's ONO. I have given refcrenc-~ to th1• t•dilluu
111 tht' 81lllari11m because this includes also the manifesto o f Michael of Ce~n" lo whkh llw
pope was ~ponding.
59. In Q111n t•ir reprob11s, col. 4211, John wrote, HDicimus ergo, quod dr.·n•talis Ail '""'''
torrm de usu l.'t uli loquilur, :<irnt t!C'C"rt'tnli!I F.:riil loqut-1:-iatur. ...
#
60. ONIJ, ~'ih. "()mil(' C'nim tu~ uh•mli 1'111 ius n.lluralt• aul iu!I pol'itivum . . . 1'f•n1ml11111
Nk holilum f ri\trM Minon"' ... h11t ...111 '"' 11tr111ll n1tl11r.1lt.', cum d k i11 iJl!<i.< 111rt' I'" " "'I provl
.lt•t11l11m ~11,.h•111.1ti11n l n11hmll' vlArn 11011 <'••r /'"'"' '""""' rrKo non 11n·iplt h1" uh'mll 1•ru lur,.
1111lur.1'i Sumil '''K" lu• 11trmll 1•ro Im" l''"'lll\111 "
 122 THE IDEA OF NATURAL RIGHTS
tum and the Decretals.61 It described the kind of right that the Franciscans
claimed to have renounced. On the other hand, Ockham asserted, there
was a natural right of using that was common to all and that was derived,
not from human law, but "from nature." This right could never be re-
nounced since the actual use of things was necessary to sustain life.62
When Ockham applied this distinction specifically to the problem
of Franciscan poverty he noted that the natural right of using things had
been limited by the law that instituted private property. One could nor-
mally use things belonging to another only in case of extreme need. So far
this was the old doctrine of the canonists; but Ockham added a refinement
of his own. He argued that the underlying natural right also came into
play when one used something by license of an owner. The permission
of the owner did not confer any new right on the licensee; it merely re-
moved the restrictions of human law that normally impeded the exercise
uf d nafurat right.' And thfa wa!: rrPd""'Y thf' rnc:itinn ('f Uic frJnd~\.dllS
l
according to Ockham. "They have no positive right," he wrote, "but they
do have a right, namely a natural right." 64
Our concern is not so much with the substance or persuasiveness of
Ockham's argument for Franciscan poverty as with the ways in which he
developed the concept of natural rights in shaping his case.65 The argu-
61. ONO, 559, nGrca primum dicunt quod ius utendi est duplex. Quoddam enim est ius
utendi naturale; aliud est ius utendi positivum ... quod ex constitutione aliqua vel humana
pactione habetur; et de isto iure utendi dictum est prius in capitulo secundo. Unde istud ius
utendi non est aliud quam quaedam licita potestas exercendi actum aliquem circa rem tern·
poralem extrinsecam, qua quis sine culpa et absque causa rationabili privari non debet
invitus, et si privatus fuerit, privantem iniuste potent in iudicio convenire... . Nullus autem
sine culpa et absque causa rationabili debet suo iure privari, ut notat glossa, Extra de consti·
lulio111"bus, c. ii, et Extra, dt to, qui cognovil consanguinmm u:coris suat, c. ultimo, et di. xxii, c.
Renovonles, et ex sac:ris canonibus colligitur evidenter....n Ock.ham referred here to the Or-
dinary Gloss on X.1.2.2, X.4.13.11, and Dist. 22 c.6. There is a similar definition at ONO 302 but
without the canonistic references. Sometimes Ockham overtly cited his sources. Sometimes
he did not trouble to do so.
62. ONO, 559, nlus utendi naturale commune est omnibus hominibus, quia ex natura,
non aJiqua constitutione s uperveniente, habetur." ONO, 556, "... iure autem naturali non
potest carere vita mortalium, quia tali iuri nullus renuntiare potest." The statement was re-
peated several times, e.g. at ONO, 561, 562, 564, 5Tl, 519.
63. OND 578. See below, n. 81.
64. ONO, 561, Nfratres minores, in rebus quibus utuntur, non habeant aliquod ius posi·
tivum, habent tamen a.liquod ius in eis, scilicet ius naturale.n
65. After the above argu~nt Ockham interpolated a discussion of a quite different
issue. John xxn mentioned here that, when previous popes had conceded the use o( things
to the Franciscan Order, they must have intended to concede a right of USl' bt-cause the Order
as such was not a real person but only "imaginary." l\n al>strMI entity could not actually u!K'
things but it cou.ld acquire a legal right. CKkham rrplfrd lh11t llw <lnlt•r wa" not im.lginary
but consisted of true person~. Thi~ !l('('m" to bt• onr nf th.. vt•ry "'"' lnlruHion~ of lli·kh111n'11
nominali.• I philosophy into hi" pt1lt•111ln1I wrlll11K~ llul lnlm )\I( II w"" 11111 d1•11yl11K 111111 llw
LANGUAGES OF RIGHTS 123
ment outlined above is a good example of his distinctive approach. The
difference between ius naturale and ius positivum understood as natural Law
and positive law, was well known, taken for granted by jurists and theolo-
gians, and some of the canonists had seen that the term ius naturale could
have a subjective meaning. But no one before Od<ham had discriminated
so carefully between ius positivum and ius naturale when the word ius was
taken in a subjective sense to mean a right. Moreover, Ockham persistently
appealed to this distinction in the course of his argument against the pope.
And so the concept of a natural right-not novel in itself-came to be
drawn out of the realm of juristic discourse into the center of a major theo-
logical debate.
- Ockham did not devote any one section of the OND to a systema-
.:
tic analysis of the idea of a natural right. He was commenting word by
word on John XXII's bull, Quin vir reprobus rather than formulating his
own position independently, and this led him to make the same points
I
over and over again in scattered contexts, with minor changes of wording,
in a contorted, sometimes mind-numbing sequence of propositions and
definitions.66 Such material is not easy to summarize. Still it is possible
1 to trace out a few strands of thought that can help us to understand Ock-
ham's ways of using the language of natural rights. The following ex-
amples are taken from a dense thicket of argument included in one section
·' of the OND (chapters 62-65), where Ockham was primarily concerned to
refute the pope's assertion that all just use required a right of using.
The first argument that I want to consider illustrates further the points
already mentioned-Ockham's persistent interest in distinguishing be-
tween positive and natu.r al rights and his indifference to the distinction
between the subjective and objective meanings of ius that has sometimes
been regarded as a characteristic feature of his work. This phase of the ar-
gument also illustrates how both parties in the controversy manipulated
- - -- --- --
Order consisted of reaJ individual persons. He had in mind the canonistic corporation the(1ry
that treated a corporation as a "fictitious personn or a »fiction of the lawn preci3ely becau!M'
only the individual members were true persons. One might think that a nominali~t coultl
have accepted this doctrine happily enough. But Ockham wanted only to di!\putt' t•vc·ry
word of the pope's decretal in every possible way.
66. E.g. at ONO, 575, Ockham argued that John XXII intended to refer to a positive', ll'g•I
right, a right to sue in court, when he used the term ius 11ttndi. Then he re(erttd bad< to
Chapters 2, 6, 31, 32, 37, 42, 55, 58 and 60, where he had made the same point ovrr ;m,I nv..r
,,gain. II is a typical example of the repetitive and d iscursive style o f the ONTJ. An M .•<•d
.1tion between a right and a capacity to tiring suit (i11s and aclio) was noted in the' Ordi1111rv
1 ;/~< to the Dt-crrtum at the Yl"ry bt>ii;inning of tht" work, Vi~t. l c.l !1.V. Fa~ rt>I, " ltc•m lurr
tlivino lid tum rsl cnmt'drl't' uvH In "M'° 11ltl'rh111 ... !Wd licct !lit aequum lurt' <llvh1<1, lt11t1f't1
non l~t iu.!'I, id e!!I im• non dat dvllrm 111·tl11n..m l lhl M\lm aliquld mlhl prodr11t rt llhl non
111 1t·••I, 1\C'<lllllm 1·~t . 111 m lhl 11011 prohlhC'•, Ito"I l111t lhl ·1l1•fld 111.'· <"lt'kh11m •11m1r.t lh1• 111•1
word" 111 (IN/>. 'iHI , hut wllho11l 1<1f.,11111" lo hi•""'"'"
 124 THE IDEA OF NATURAL RIGHTS
an underlying structure of canonistic jurisprudence to develop their own
rights theories.
The question at issue was the one just mentioned, Pope John's in-
sistence that there could be no licit use without a right of using. By the
time Ockham joined in the dispute the pope's argument had advanced
somewhat beyond its original formulation. From the outset, John had
maintained that anyone who used without a right used unjustly, but in
Quia vir reprobus he drew into the discussion for the first time a text of
canon law from the title, On the Signification of Words, in the Gregorian De-
cretafs to support his argument. The pope was arguing here that a license
to use did in fact confer a right on the licensee:
. .. If anyone concedes a license to anyone, the latter has a right of
using .. . if he says that he uses justly it foJlows as a consequence that
he uses by a right because what is done justly is done by a right. See De-
cretals, On the Signification of Words, c. /us dictum est and C.14 q.4 c. Quid
dicam.67
Since the Gregorian Decreta/s contained a title On the Signification of
Words, and since the word ius was one of those whose signification was ex-
plained there, one might expect to have at hand a definitive, clearcut
statement of the primary or strict meaning of the word ius for medieval ju-
rists. {Perhaps Suarez had this text in mind when he wrote that "in its strict
signification" ius meant a moral power.) But unfortunately the text of the
Decretals, taken from Isidore of Seville, was ambiguous. It ran like this:
lus dictum est a iure possidendo. Hoc enim iure possidetur quod iuste;
hoc iuste quod bene. . ..68
That is:
lus is so-called from possessing by (virtue of) a right. For that is pos-
sessed by a right that is possessed justly; that justly that (is possessed)
well... .
This is how John XXII understood the text. But it could just as well mean:
lus is so-called from possessing (in accordance with) the law. For that is
possessed by law that is possessed justly. .. .
This is not just a verbal quibble. The point is that the second understand-
ing of the text would not have supported the pope's position. John XXll
was not arguing simply that a person who used with a license used law-
67. Quia uir reprobus, 433, " . . . si enim aliquis Jicentiam roncedat alicui . . . constat, quod
iictp ,h;thrf UJ~ uh~ndi . c;.j fl rr~I '1Un1i in&,, .. uhlffr. , , .. p •ffll• f•'I t 'ttl1·,••i flft•11 ..;, •1"•l\f t~t turtt.
quia, quid iuste fit, et iure fit {extra de verborum signifkatiorw cap. /us 1lidum rs/, XIV q.4 cap.
Quid dicnm)." The canonistic reft'n'·T\Cr.l iire It• X.'>.40.12 ft tu I C".14 •t 4 " 11 (of tlw I >t-,·,,.111111).
611. X..'i.40.12.
LANGUAGES Of RIGHTS 125
fully. No one doubted that. The pope's point was that a license specifically
conferred a right and that without a right there could be no just use.
But in order to make this point John had to impose an unusual mean-
~ I
ing on his text. There existed a long tradition of canonistic commentary
on Isidore's definition and, until the time of John XXII, the word ius was
always understood in an objective sense as referring to law, specifically the
civil law.69 The point the canonists always wanted to make was that al-
J though. according to their text, a justly possessed thing was possessed in
conformity with the law, the converse did not always hold. Not everything
i;-. possessed in accordance with civil law was possessed justly. They had in
mind the example of prescription, acquisition of property by long pos-
session. In Roman law uninterrupted possession was enough to confer
ownership, but church teaching required that the possessor should also act
in good faith throughout, not knowingly excluding someone with a better
claim. Hence one who acted in bad faith would possess legally (iure} but
not justly (iuste). This was the interpretation that Ockham could read in the
Ordinary Gloss to the Decretals. "He possesses by law who prescribes in bad
faith, but not justly."70
During the first part of the fourteenth century the great canonist Jo-
hannes Andreae introduced a new interpretation of the text He wrote:
Isidore does not speak here of the general ius which is established in I.aw
and customs ... But he takes it for the right that belongs to a private
person in some thing.71
The gloss of Johannes marked a turning point in the understanding of
the primary signification of the word ius, as it was formally defined in
canon law. Later medieval canonists like Zabarella and Panormitanus con-
tinued to discriminate between the subjective and objective meanings of
the word and to emphasize the subjective one. l do not think, though, that
John XXII or his adversaries knew Johannes' gloss when the pope wrote
his own comment.n More probably John took an ambiguous text that had
J· I
69. For a discussion of the origins of X.5.40.12 in Isidore of Seville and Augustine, and for
l l'.trlier commentaries on the text see my " /us dictum esl a iurt possidtndo: Law and Rights In
1 llrcrtl11/es 5.40.12," in D. Wood, ed., Church and Sovereignty. c. 590-1915: Essays in Honour•'/
Michael W ilks (Oxford, 1991), 457- 466. The early commentators did not raise the i!l..,ue thal
just possession might be derived either from divine law OT human law, but the point w1111
m11de by Zenzellinus de Cassanis in his gloss on John XXll's dogmatic decrtt Cum inlt"r """
r111/fo~ s .v. Non i11stf/. 7..en1.ellinus wa!I a major adversary of the Franciscan party, mc-nliurwtl
hy namP in Michael of c-na'!! mi'lnif<~tc• of 1:129. Perhaps taking a hint from hi~ oppt>11l'nl,
( k kh11m billlt.>d his argumc>nl on ii 1'1mll.,r '"""'""lion.
711. l>t"m·tnlr~ IJ. C.rt"gorii IX mm ,l(l•••Jfl• (I.yon.•, 1h24), rnl. 1937.
7 1. Irr 1111irrlum 1l«rtl11U11111 lll•run1,,,,,,..1(,,11•111111ml11rin (Vt•nin•, 1.581), fol. l!'lvb.
n luh"'""... h<'!I"" worJ.11111 "" hi• • 111111111•111,., v 1111111ml IJ 11 l>ut ttltl not n •mplrtr It
1111111 I 'l \H, 11i1l<' V•'itr" "'"'' l11h11 'I( ltll l..11P1 I l ) llht 1•11 rfl'""'•" II "' l'"""Jhlr, howrv.-r. lh"t lhr
126 THE IDEA OF NATIJRAL RIGHTS
previously been understood as referring to objective law and read it as a
statement about subjective right simply because that was the reading he
needed to support his argument.
If Ockham had wanted to present a distinction between the subjective
and objective meanings of ius, the pope's text would have provided a per-
fect opportunity. Ockham could have pointed out that John had departed
from the standard interpretation of the Ordinary Gloss and improperly
introduced the notion of a subjective right into the text he cited. But, al-
though Ockharn usually liked to tease out every conceivable objection to
every single word of John XXII's decretal, he did not choose to pursue this
argument. He simply accepted the pope's understanding of ius as meaning
a right in this context. Ockham did indeed write that John was using
words sophistically and equivocally, and that it was necessary to distin-
guish between the different senses of the word ius;73 but his own defini-
tions had nothing to do with subjective and objective meanings. Instead he
turned back to his preferred distinction between natural right and positive
right.
... this noun ius is sometimes taken for the law of the court (ius Jori),
sometimes for the law of heaven (ius po/1). This distinction is taken from
the words of Augustine On the Life of Clerics, which are included in the
tinal chapter of C. 17 q .4 (of the Decretum).74
In referring to a ius poli Ockham was reverting to the language that
Nicholas III had used in Exiit. This apparently led him to the text of Au-
gustine in the Decretum that included the original distinction between
ius poli and ius Jori. And since there were these two kinds of ius, Ockham
argued, John's text from the Decretals ("what is done justly is done by
right") did not prove that all just acts required a positive legal right (ius
text quoted above was known from an earlier recension of Johannes' work. See the Introduc-
tion of Stephan Kuttner to the modem reprint of Johannes' work (Turin, 1963). The texts of
Johannes Andreae, ZabareUa, and Panormitanus are discussed in Hlus dictum ~I a iurt .. ."
(above n. 69).
73. OND, 573.
74. OND, 573, referring to C .17.q.4 c.43. Oclcham's sharp distinction between human
positive law and natural moraJ law has so.metime.. been seen as an example of how his skep-
tical, voluntarisl approach subverted the harmonious synthesis of Aquinas, who held that
human law must be in accord with natural law and found law and justice in the intrinsic
nature of things. See, e.g. M. Bastit, Naissllnct dt la loi modmtt (Paris, 1990), 257-63. But
Ockham was merely reformulating here the standard interpretation of the Dtcmals rext,
XS.40.12, that he could read in the Ordiltllry Gloss. A little further on (579) he wrote Hqui iul'f'
poli possidet bme possidet" with a reference to the words Hhoc iu.1te quod bme" o f X.5.40.12.
These particular words were not included in John XXll's Quill vir rrpmb11s. F.vidently Ockham
looked up the D«rrtab tcd, with iii. glOM, for himM'IL
LANGUAGES OF RIGHTS 127
Jori); they could just as well be based on a natural right (ius poli}.75 In this
way, by applying his Augustinian distinction taken from the Decretum to
}. John XXll's text from the Decreta/s, Ockham was able to circumvent the
pope's position.
In the course of his convoluted chapter devoted to refuting John's ar-
I'1
gument, Ockham went on to present a detailed analysis of the terms ius
Jori and i11s poli that he had first introduced as a sort of tactical maneuver.
His handling of these two concepts provides another theme that exempli-
fies Ockham's typical ways of arguing about rights. Here again we are
reminded of the ambiguous use of the word ius in Ockham's discourse. We
also encounter another intrinsic feature of his thought, an emphasis on
right reason as the basis of both natural law and natural rights.
As Ockham's discussion proceeded, he took ius fori to mean a posi-
tive right (or law) and ius poli to mean a natural right (or law),76 shifting
-.: between the objective and subjective senses of the phrases as the course
I
!
,-J i•
I
of his argument required. When Augustine wrote of ius Jori and ius poli. he
clearly used the word ius to mean law-either human positive law or natu-
ral moral law.n Ockham's position was at first the same. After introducing
Augustine's text, he wanted to provide some further canonical authority
for discriminating between positive law and natural law. The first Distinc-
tions of Gratian's Decretum dealt with just this issue; they distinguished
between ius naturale and various other kinds of ius such as the ius civile or
i11s co11s11et11dinis, all the time clearly using ius to mean law-natural law,
civil law, or the law of custom and so on. Also the Ordinary Gloss suggested
here that the word "custom" might be used loosely to mean all human law.
Ockham took this as the basis for his own first definition of ius Jori.
lus fori refers to the justice established by a compact or by some explicit
human or divine decree; whence ius Jori can be called the law of custom,
taking the word custom in a broad sense. And it is said of this law in
f Dist. 6, "The law of custom had its beginning after natural law.. .. "78
75. ONO, 579. "Quin q11od iuste fit. fit et iure. Verum est quod fit iure poli vel iure fori; scd
non opportet quod semper fiat iure fori."
76. See e.g. OND, 578, "Omne ius ... vel est naturale et poli vet est ius posilivum t•t
fori."
77. Augustine's text referred to a bishop who was morally obljged to make restitution
though not compelled to do so by civil law. The Ordinary Gloss to the D«retals indudt'J a
mnemo nic verse that identified ius poli with the natural law defined in the first w ord" of< ;r.,
tiam's D«.rtlum. See gloss ad X.1.1.1. s .v. Ordi11atissimam, "Quod tibi vis fieri mihi fat·, qw1tl
non tibi noli I Sic potest in terris vivt>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 .!<Utnptn vno\huln
" 'Oll.!tlH'tudini.!t·. p<>l<'ril itppdlnrl. Ft dr i~to lttn- olkltm In olt'n!'li'4. 11. vi; 111.< ,,..m n111s11t'l111l1
uis I~"' ' 1111turulrm lr,°'t'IJI t'Wrtf!um 1111/ttl "
128 THE IDEA OF NATURAL RIGHTS
As for ius poli, the Ordinary Gloss to the Decretum defined this term, and
also ius naturale, as meaning natural equity.'19 Again Ockham took over the
juristic definition and expanded on it, though this time without any ex-
plicit .reference to his source:
lus poli means natural equity which is consonant with right reason with-
out any human or purely positive divine decree ... this law is some-
times called natural law....80
So far there is no ambiguity; ius Jori and ius poli mean positive law
and natural law. But in the subsequent discussion the meaning of ius poli
shifted to a subjective sense. Discussing again the question whether a li-
cense necessarily conferred a right, Ockham wrote,
Every right (ius) is either divine or human, and if human it is either natu-
ral and heavenly (po/1) or positive and legal (/ori).81
And so the argument moved on to another set of definitions:
lus poli is nothing other than a power conformed to right reason without
any compact; ius Jori is a power from some compact, sometimes concor-
dant with right reason and sometimes discordant. 82
In these last definitions Augustine's "law of heaven" and "law of the
court" have been transmuted into subjective powers or rights. The change
of meaning seems to have been introduced quite nonreflectively. Still,
it is a little disconcerting that Ockham, the master logician, could casu-
ally write here that ius poli meant "nothing other than" a subjective power
79. Gloss ad C.17 q.4 c.43 s.v. Non iure poli, "i.e. quad am natu.rali aequitate"; ad Dist. 1 c.8
s .v. Ius naluralt, "Tertio modo dicitur instinctus naturae ex ratione proveniens et ius ex tali
natura proveniens dicitur naturalis aequitas." . a particular virtue distinct from other virtues, or it can refer to the legal jus-
80. OND, 574, Nlus autum poli vocatur aequitas naturalis quae absque omni ordinatione
humana et etiam divina pure positiva est consona rationi rectae . . . hoc ius aliquando vo-
catur ius naturale.. .. Aliquando vocatur ius divinum; quia multa sunt consona rationi
rectae acceptae ex illis, quae sunt nobis divinitus revelata quae non sunt consona rationi pure
naturaJi. ..." Ockham was arguing here that some divine law was known by right reason
reflecting on revealed truth. As an example he mentioned a pastor preaching the gospel.
Right reason could establish that he should be supported by h is flock, but only because it
was known by revelation that the gospel was true. "The ~tial distinction was between law
that could be ascertained by reason and law that rested on a purely positive command,
whether human or divine.
81 . OND, 578, NOmne ius vel est divinum vet humanum, et si humanum, vel est naturale
et poli, vel est ius positivum et fori." Ockham was clearly using ius here to mean a right. He
argued that a revocable license did not confer a natural right. for that preexi~ted, and it did
not conler a positive right because it gave no power to sue in court.
82. OND, 579, Nlus autem poli non est aliud quam poll"l'l•'" n•nlormi11 r,\lioni n.•dal'
absque pactione; ius fori ~t pol!'!ltas ex pactimll' ,1ll111111mlo n1nlo1111I "'"""i n·d.lt'. l'I ,,1;
quando discordnnti."
LANGUAGES O F RIGHTS 129
when he had a little earlier defined the term as meaning something quite
different, natural equity or natural law. Ockham did not explain why
he had presented, in different contexts, two quite different definitions
of natural right or how, if at all, the two meanings were related to one an-
other. But, as I have already noted, this should not surprise us too much.
The dual sense of ius was taken for granted in the sources that Ockham
used, and he took it for granted too. In presenting his definition he showed
no awareness that to distinguish between the objective and subjective
;:.
senses of the word ius might be a matter of considerable significance. One
;
might indeed think it anachronistic to look for any such awareness in a
.,
-' I
I
writer of the early fourteenth century, working long before the developed
~I i rights theories of a later age, except that Marsilius of Padua and Johannes
·;I Andreae, both contemporaries of Ockham, did see the importance of the
It '
distinction and so helped to initiate a new tradition of interpretation.
Ockham was making a different contribution to the debate. For him
ius poli could be taken to mean either natural law or a natural right "conso-
nant with right reason." In the definitions we have considered, Ockham
did not derive the notion of natural rights from natural law or vice-versa;
. '
_.;I
both concepts were derived from an underlying assertion of human ration-
~ ality. This was the central theme of Ockham's theory of natural rights.
The same concern is evident in yet another line of argument devel-
J_
oped by Ockham to dispute John XX:Il's asse~on ~t anyone who u~
without a legal right used unjustly. Here the d1scuss1on turned on a persis-
tent interplay between the concepts of justice, right reason, and natural
rights. As so often in the ONO, the argument was presented in a rather d~­
fuse fashion but, ifOckham's various comments are put together, the chain
of reasoning runs like this. To understand how an action can be called
"just" we must consider the concept of justice itself. The word can refer to
tice that ordains acts to the common good; but, according to Thomas
Aquinas, there is a third meaning, according to which any licit act can be
111
called just because such acts are good and "consonant with true reason."
1f we take justice in this third sense then indeed it is possible to act justly
without any positive right (though not without right reason).84 And,
83. OND, 557. "Ad cuius evidentiam est sciendum quod nomen 'iustitiae' triplici arcipl
potcst. Uno modo accipitur pro quadam virtute partkulari. . .. Secundo accipitur iu111ill11 pn•
quadam virtute generaIi quae vocatur iustitia legalis.... Tertio accipitur iustltia pm 11rhltn
ordinatione actus ad rationem... . F.t i111iu11 opinionis fuit Thomas ... et isto modo omni"
actus licitus est iustus, quia t'lll honw• t•I vt•rar consonus rationi.N Ockham must h11vr •'II
~·yl'<l quoting AquinaJll, whom [ohn XXll h111I n-t't'11tly c11noni7,ed, in hie own r11u11t•. ·nlC'
lhrN>·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> ••
 130 THE IDEA OF NATURAL R ICITTS
~
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 be-
cause 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 right.as
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 doc-
trine of natural rights on to Aquinas's theory of justice.

S IX
CONCLUSION

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 mean-
ing 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 us-
tained distinction between natural rights and positive rights.
PROPERTY, NATURAL RIGHT, AND THE
STATE OF NATURE
T he social context in which the Franciscans lived and worked wa.s
shaped by the economic strivings of an age that had already experi-
enced 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 <lln ml 11uod ulitur iu~lt· n•,
cuius ha bet liC't'ntiam ulrnd i; quin ulilu r n mfnrrnlle'r r111innl , ..,., ..,. f;t to''"' 1·u11n'<l11nl •111011
ulitur iun•, non ' l11i1lrm iun• fnrl, ~t lur" I'"" "
The Franciscans maintained that they had renounced all rights to
property, e ven in the things that were consumed in use. Their advcrsilry,
Pope John XXII, insis ted that such a claim was both unlawful and unn'a-
sonablc. As th<' debate protiff'rnh>tl it num• to involve a group of probh•m11
that had t•arli<•r bt>cn dii«'U!'sc•tl hy dvll 1m1I c.·.mun lilwycrs and thilt would
liltt'r pc•rsist as topit'/4 11( t'rt1lr11I lmpt11l;m1·1· in ttw writing1' of tlw ~rt·nl
I \I
 132 THE IDEA OF NATURAL RIGHTS
natural rights theorists of the seventeenth century-in the works of
Grotius and Pufendorf and Locke. The fourteenth-century discussions
provided a bridge-or one of the bridges-between these two areas of
discourse.
Questions like these arose. What kind of property (if any) existed in a
state of nature? Was Adam at first the sole proprietor of the world? How
could a right to individual property arise from an earlier condition of
common ownership? Was such a right derived from natural law or from
human convention? If from human convention, was the act of institution a
pre-political agreement or the decree of an established government? And if
property was instituted by government, did rulers have absolute power
over the goods of their subjects?
The problem of first acquisition has been a persistent focus of con-
troversy in discussions on the basis of property rights. Evidently a person
can acquire physical possession of unoccupied land by settling on it; but
why should the first occupant have a right to exclude others, to impose
on others a moral or legal obligation to accept his right of ownership? As
Robert Filmer pointed out in criticizing Grotius, if at one time all things
were common, then it would seem that the person who first seized a part
of the common property as his own was simply acting as a robber. The act
of acquisition could be legitimate if it were based on a preexisting agree-
ment of the whole community but, as Filmer again pointed out, it would
be "a rare felicity" if all the people in the world had simultaneously con-
sented to such an arrangement. 1 Locke's labor theory of property was an
attempt to answer Filmer's argument, but it soon proved vulnerable to
multiple objections. Most obviously, a man's labor does not create the land
on which he works. If he "mixes his labor" with the land, why should
we say that he acquires the land? Why not just say that he loses his labor?
Or that he is entitled only to the direct fruit of his labor, the crop that he
raises? Such problems continue to perplex modem political theorists. One
of them has observed simply that "no adequate theory of initial acquisition
exists."2 Among modem writers who have tried to formulate such a
theory, some have concluded that private ownership is a social construct;
on this view a right to property can exist only when the relevant commu-
nity has instituted rules concerning acquisition and exchange. Others have
asserted a natural right to property by developing the argument put for-
ward by Henry of Ghent in the thirteenth century, and emphasized by
Locke in the seventeenth, that every individual has a property right in his
1. Robe.rt Filme!', Patriarcha md Olhtr Writings, ed. j . r. Sommerville (Cambridge, 1991),
23f. For an overview of property origins in early modem p<>lillcal lh<•u!iihl, S<oe N. Luhmann,
MAm Anfang war kein Unrecht,~ in idem, Gr"ll!t<"hnfl~•lr11/d11r 111111 Sm11wtik, 4 vol~. (Frank·
furt, 1980-95) 3:11- 64.
2. J. Gray, Ubm1'1~m (Mlnrw11pol1A, l<JM), 1~1
PROPERTY, NATURAL RIGHT, ANO THc STATE Of NATURE 133
own person. Some have argued for a right to property based on a prior
right to liberty. Many have argued in various ways from human nature,
human needs or human aspirations. 3 Jn considering some fourteenth-
century approaches to such problems we shall be dealing with issues of
perennial significance in Western thought.
Ideas concerning the origin of property have often been associated
with a second important topic that we shall need to consider, another
theme that arose during the Franciscan dispute and that persisted in
seventeenth-century discourse on natural rights. I mean the play of ideas
inherent in the frequent appeals, in both epochs, to a primeval state of
nature as a starting point for arguments about the right ordering of society.
This kind of argument was made possible by the ambiguities inherent in
our word "nature." Philosophers and jurists have found many meanings
for the word, but two of them seem specially important in the growth of
political theory. "Natural" can refer to a primeval state of affairs before the
institution of any human laws or customs or conventions; or the word can
refer to the intrinsic, permanent characteristics of human beings as self-
aware, moral, rational creatures. Many thinkers have taken the natural
law or natural rights derived from the second concept of nature as a basis
for defining permanent norms of human conduct. But difficulties could
arise in natural law theories-and indeed they kept on arising-if the two
meanings were confused, so that the primitive condition of things, since
it was "natural," was also regarded as permanently nonnative. Medieval
jurists often saw the need to distinguish between the different meanings.•
So too did some early modem theorists. Pufendorf, for instance, called at-
tention to "the ambiguity of the word nature" when he criticized Hobbes's
unflattering portrayal of natural man. Pufendorf pointed out that, if W('
treat the primordial as natural, it is as though we were to say that, since
babies are born without the faculty of speech, it is unnatural for them later
to learn to talk.5 On the other hand, Pufendorf noted, if we understand tht•
3. The following are a few of the recent works that criticize Locke's theory of pmperty in
various ways and set out alternative positions-they include libertarian. communitarian, utili-
tarian, Straussian and feminist arguments: J. 0 . Grunebaum, Private Owntrship (New York.
1957); L E. Lomasky, Persons. Rights, and tht Moral Community (Oxford, 1987); T. Machan, /11-
dh•iduals and Their Rights (LaSalle, 1989); T. Pangle, The Spirit of Modtrn Rrp11blica11ism {Chi-
cago, 1988); C. Pateman, Tht St:rua/ Ccmlrnc/ (Stanford, 1988); D. B. Rasmu~n and I>. J. D1•n
Uyl. Li~rty 1111d Naturt. An Arislottlian Deftnst of Libmll Ordtr {LaSalle, 1991); A.. Ry;m. Pm1>rrtv
(Minneapoli-;, 1987); J. J. Thomson, Thi' Rt'alm of Rixhts (Cambridge, Mass.• IQq(j); J. W Wnl
tlmn, Thr Ri!(hl to Proptrly (Oxford, 1~).
4. S!'e e .R tht' O rdinary Gfc>$.< lo tlw I >r1·rrt11m 111/ ni~t. 1 c.8 s.v. /us 11al11r11r, " A.I inh·ll1K<'"·
0
tiilm istomm nola <JlHXI n.1t11r" mulllll 111ntll1< tlldlur." lh1• nulhor. Joh1mnt'!I T.-ulonku,., wrnl
o n lo givt• four 11w;1 nln1<1<.
~. S l'ufc•mln rf. I Ir /111r u11lui11r rt xr11l111111 11111 • ,,, lo. ' " ' ( · 11. ( >hlfotlwr "'"' W A (lid
f.11lwr. 2 vnl1< (< hfnrd. 1'114), ') /l it uo/11111111 . J l It•. Jiii
134 THE IDEA OF NATIJRAL RIGHTS
law of nature as "that which is in conformity with rational nature," such a
natural law can allow for growth and change in time.6 It does not have to
be ahistorical. Since it is derived from rational reflection on changing
human conditions, it can accommodate some kinds of historical develop-
ment, including the transition from primitive community to private
ownership of property.7
The attempt to derive natural rights and natural Jaw from human
reason may be a worthwhile enterprise; an appeal to simple primitivism
seems at first sight merely naive. And yet this latter approach appears to
satisfy some deep instinctive tendency of the human mind. Tribal peoples
dream of a remote and magical epoch when god-like ancestors estab-
lished the norms of their present-day societies. Classical authors wrote of
a golden age when men lived together happily and shared all things in
common. Christians had their Garden of Eden. Sophisticated poJiticaJ
thinkers in the seventeenth century appealed often to more or less imagi-
nary ancient constitutions. Eighteenth-century imaginations played with
the idea of noble savagery. Even in twentieth-century juristic discourse,
one eminent author has thought it necessary to remind us that we should
not think of natural rights as "spectral attributes worn by primitive men
like amuJets." 8
In spite of the confusions that arise if we simply equate the primordial
with the natural, we can perhaps learn one lesson from considering the
attitudes of primitive societies. The problems about property that are cen-
tral to our Western tradition of political thought are not universal human
problems. Among primitive peoples we can find almost every conceivable
variety of property distribution; but the peoples concerned do not vex
their minds with conflicting theories about how their customs came to
exist or on what grounds they can be justified. A modem anthropologist
might point out that each such system is a result of unconscious patterning
in response to conditions of soil and climate and other physical realities; to
the peoples concerned, however, their customs seem natural in the sense
of being part of the natural order of things, accepted unreflectively as one
accepts the changing of the seasons or the rising of the sun in the east. It
follows that a major problem, often overlooked, in considering theories
about the origin of property, is to determine just when the issue began to
be seen as problematical
The appeal to a remote past in Christian thought has often focused on
the Garden of Eden or, more practically it might seem, on the example of
the early church. Since Christians believed that the institutions of the
6. Ibid., 2.3.13, 226.
7 . Ibid., 2.2.22, 225.
It. R. Dworkin, TakinR Ril(hts .'>t'rim1.<1v (C 1m1hrldK'"
0
M11a~ . 1•rn1. 1·111
PROPERTY, NATIJRAL RIGITT, ANO THE STATE O F NATURE 135
primitive church were established by a divine founder, it seems n:aS?n-
!I
.• I
able enough that believers in all ages should have looked back on this first
ordering of things as an ideal to be preserved or, if necessary, recovered.
But the image of the early church was inconstant and malleable; it proved
variable enough to sustain a wide range of movements of protest and
reform, as well as conservative defenses of existing institutions. People
poured their own ideals, born of the contingencies of their own times, into
the disputed texts of scripture that they quoted at one another.
All this is especially true of the Franciscan controversialists of the four-
teenth century. In Franciscan writings a very distinctive vision of the early
church coexisted with idiosyncratic theories concerning the right to prop-
erty and with appeals to a primordial state of nature that were intended to
justify the existing practices of the Franciscan Order. William of Ockham
had interesting things to say about all these questions. But, as usual, it is
impossible to understand Ockham's distinctive contribution unless it is set
against a broad background of earlier reflection on the question at issue
and also in the immediate context of the Franciscan controversy.
THE BACKGROUND: CIVILIANS, C ANONISTS, AND THEO LOGIANS
.•
! ~ Civilians
The idea that a right to property derives from first occupancy is
rooted in Roman law.9 The ancient jurists made a distinction-sometimes
carefully preserved and sometimes neglected by early modem rights
theorists-between things that were owned by a community and things
that had no owner.10 These latter were referred to as res nullius or in lxm;s
nullius. Ownership (dominium) was acquired by first occupation of a res
nullius. 11 At the time when the classical jurists were writing, this kind of ac·
quisition applied only to a small range of objects; the laws mentioned such
things as gems picked up on the seashore and wild game, "tak~ by land,
sea, or air." But Nerva Filius, a jurist of the first century, explained that
9. The relevant Roman law texts are conveniently assembled, with a good commentary,
in R. W. and A. J. Carlyle, A History of Mtdiroal Political TMory in IM Wts!, 6 vols. (Edinburgh,
1903- 36), 1:33-54.
IO. Pufondorf built his theory of property around this distinction, using tht- tPrmll Npo...1-
tive community" and Hnegative communityHto describe the two situations. GmtiiL" movrd
from the idea of rrs nul/iu~ in hl!I nrly work to a doctrine of common o wnf'rllhip In tlw
v, ;urt btlli. Locke's usaKf' w11" 11mblg1101111. Modem llCholars still a~ue about hl11 rf'nl po·
l!ition. For a dillCull~lon o f thl"· ,..... /\.. M11p11<7.ynJ1ki, Nolurt ond PCJhlrrs (lthac11, NY, 1'>147),
IH0- 186.
11. I Ji,( . J .H 2, "1.)1111c«l11111 n11htrall 1uu1 • 01111111111111, """' n mnlum, •111111•,l11m 11nlvrultnlh1,
'I'"''''''"" 111111111"· l'h·r••I"'' •111.11111111111 ••
 136 THE IDEA OF NAn.JRAl RIGHTS
all ownership had at first originated in this kind of natural possession and
that the existing rules were just relics of this initial state of affairs.12
The doctrine of res nullius does mitigate some of the difficulties inher-
ent in theories of first acquisition. A person who takes something that has
no owner cannot be called a robber. And it does seem intuitively reason-
able that, for instance, a man who catches a fish in the open sea has a right
to claim it as his own. It is not so obvious that the one who first occupies a
tract of land acquires a right ipso facto to exclude others from it; but, unde-
terred by such considerations, the Roman lawyers referred to acquisition
by first occupancy as "natural" and "rational." Gaius, for instance, wrote,
"what belongs to no one is conceded to the occupier by natural reason." 13
Gaius also related the institution of property to the ius gentium, the law
of nations, but he made no distinction between this law and the law of
nature. For Gaius the ius gentium was "what natural reason has established
among all peoples." 1• It was common to all humanity and coeval with the
human race. ~ According to this view the institution of private property
1 which we have any record. Later on, the Byzantine compilers of Justinian's
was primeval, natural, and rational.
Another tradition of Roman law, however, distinguished sharply be-
tween natural law and ius gentium. Ulpian offered a tripartite division that
discriminated between natural law, the law of nations, and civil law. Natu-
ral law was "what nature has taught all animals." This law was common
to humans and other animals; it included such things as the procreation
and rearing of offspring. lus gentium pertained only to humans and was
common to the whole human race. Civil law was the specific law of the
Roman people. 16 Ulpian maintained that, according to natural law, every-
one was born free and that servitude was instituted by the ius gentium. 17
Another text of the Digest, from Hermogenianus, suggested that property
12. Dig. 41.2.1. " Oominiumque rerum ex naturali possessione coepisse Nerva filius ail
ejusque rei vestigium remanere in his, quae terra mari caeloque capiuntur, nam haec proti-
nus eorum fiunt, qui prim• possessionem eorum adprehenderint." See Dig. 1.8.3, "Item
lapilli, gemmae ceteraeque, quae in litore invenimus jure naturali nostra statim f'iunt."
13. Dig. 41.1.3, "Quod enim nulliusest id ratione naturali occupanti ronceditur...."
14. Dig. 1.1.9, "Quod vero naturalis ratio inter omnes homines constituit ... vocatur ius
gentium"; Dig. 41.1 .1, "Quarundam rerum dominium nanciscimur jure gentium, quod ra·
tione naturali inter omnes homines peraeque servatur. . .."
15. A paraphrase of Gaius included in the Institutes of Justinian explicitly identified i11s
natural~ and ius gmtium. Inst. 2.1.11, "Quarundam enim rerum dominium nanciscimur iure
naturali, quod sicut diximus appellatur ius gentium, quarundam ex iure civili . . . pa lam t'SI
autem vetustius esse ius naturale, quod cum ipso genere humano rerum natura pmclidit."
16. Dig. 1.1.1.4, " ... privatum ius tripertitum est: collectum e-st ex naturalihus p ral.'Crpti.'
au! gentium aut civilibus. !us naturale est, quod n11h1ra omni11 animalia dncuit... .lus g<"n·
tium est quo genies humanae utuntur...."
17. Dix. I. t .4, "Manuml11sh111t'!I <jllll<llll' iuri" l(t'nlium 1111111 . , 11111 hm• 1Mh1r,11i ""''"'"
lit>.-rl nil~('n•nl ur.
PROPERTY, NATURAL RIGHT, ANO THE STAT£ OF NATURE 137
too was an institution of the ius gentium understood in the same sense." A
continuation of this line of argument, only hinted at in the texts of Roman
law, would explain private property as conventional, a creation of human
law that supervened on an earlier state of nature. This approach perhaps
reflects Seneca's vision of a primordial golden age when all things were
held in common.
Long before the lawyers wrote, Greek philosophers had invented, or
discerned, a distinction between nature and convention. The Roman ju-
rists were aware of the distinction, but they applied it inconsistently; they
did not offer a single coherent theory of property, but rather provided a
sort of quarry from which later writers could hew out a variety of theories.
Some of their texts suggested that private property existed by nature,
others that it was instituted by convention. The lawyers were practical
men; they do not seem to have been much perturbed by the theoretical dis-
sonance in their sources; there was no extensive debate on the matter of
Corpus iuris included the texts of Ulpian on natural law along with those of
Gaius, either not noticing or not caring that the texts were inconsistent
with one another.19 Evidently the ancient jurists were simply not interested
in the problems that later seemed of such central importance: why should
first occupancy confer ownership? How could a right to exclude others
from common property be justified? In classical writings the beginning of
private property-whether under the ius naturale or the ius gentium-was
still treated as something unproblematical. For jurists the origin of prop-
erty was a fact to be recorded; for poets and mythmakers it was a story to
be told; no one saw the emergence of property as a problem that needed
to be solved.
Cnnonists
When we turn to the medieval canonists we find a quite different situ-
ation. As I noted earlier, in discussing the various meanings of ills nnt11rn/1•
in Decretist writings, the canonists did indeed encounter a major problem
when they sought to explain the origin of private property. And, once thl•
Ill. D('{· 1 I 5, " Ex hoc iure gentium introducta bella, discretae gentl'l!, ~n11 con<lit ... 110·
minia d i:o;t\ncta, agris termini positi ...."
111. Medieval Roman lawyers continut"d both lines of argument sugg~t<.'d l:iy tlw• d;1""'
c.~I jurists, sometimes empha!li7.ing 11 conv<'ntional, sometimes a natural origin of proprrty
For S<•mt• illu!!lrative texts l'('(' R. Wt-ig11ml, l>ir Naturrrchtslrhrr drr Lrxistrrt und l>rkrrti11tr11
""' lmrn11s #Ii!< 1krnr5ius u11d tlOrt c;ratum /11~ /1-./ui1111~ "lr11larticus (Munkh, 1%7), It'\ '12. In tltll
n1~'iinK tht• ,·11nuni.•llo I hAvr R'll.-.l prhwl1•Ally on WriKt1ml'io C'xcelll'nt roll1'C1lon ol trxl,.. I'm
I tuxu.-do ;I 1111<0 .,,...ti trnn•nlpth'I•~ ll'tlm Mo /\1lm1111I. Stilt"hllillotllf'lr. 7 Thr n•t11llnK" "'" ,,..
,-,,~irni.11l v ~lil(hl ly <llll1•r1•11t ln•m thn..• nf Wrlg~11·I

138 TuE IDEA OF NATURAL RIGHTS
existence of property was seen as problematical, a large body of relevant
argumentation quickly emerged, some of it destined to persist for cen-
turies in works of law and political theory.
The difficulties arose because the sources that Gratian assembled often
seemed to conflict with one another, and, unlike the Byzantine compilers,
the medieval Decretists were very much concerned to harmonize all the
varied elements of discourse that they had inherited from many ages of
the church's past. (Gratian's own title for his work was A Concord of Discor-
dant Canons.) Moreover some of the patristic texts included in the Decretum
seemed unfriendly to the whole idea of private property. St. Ambrose,
for instance, wrote, "No one may call his own what is common, of which,
if a man takes more than he needs, it is obtained by violence." Finally,
the comments of Gratian himself on natural law served only to confuse
the issue further. Gratian wrote that, by the law of nature, "all things are
common to all," and that private property was introduced by custom or
legal enactment; but he added at once that human laws contrary to natural
law were "vain and void."20 It could seem, then, that the laws instituting
private property were invalid. But Gratian had no intention of asserting
this apparently evident conclusion of his own argument. Nor did any of
his commentators want to affirm that primitive communism provided a
permanent basis for human institutions.
A major breakthrough came with Rufi.nus' distinction between two
kinds of natural law-<:ommands and "demonstrations." The commands
(precepts and prohibitions) defined basic rules of morality that were
indeed immutable. (Rufinus gave as examples, "Thou shalt love the Lord
thy God" and "Thou shalt not kill.") But the "demonstrations" of natural
law were merely descriptive of an original equitable condition of things
that could be altered and had been altered by the introduction of human
laws; and having all things in common was a "demonstration" of this sort,
not a precept.21 Other canonists referred to this kind of law as primeval or
permissive. It was primordial but not normative; it had no permanent
binding force.22
20. Dist. 8 antt r .1, "Nam iure naturali omnia sunt rommunia omnibus.. .. lure vero con-
suetudinis veJ constitutionis hoc meum est, iUud alterius." Dist. 8 post c.1, "Quaecunque
enim vel monbus recepta sunt, vel scriptis comprehensa, si naturali iuri fuerint adversa,
vana et irrita habenda sunt."
21. Dit Summa D«rttorum des Magist" Rufinus, ed. H. Singer (Paderbom, 1902), 6- 7. 5tt
above, 62.
22. See l.aurentius, #De iure naturali primeuo, vel de naturali equitate quibus derogatur
per ius humanum ... ."; Summa Parisiensis, " . .. ius naturale quod fuit in principio, !ICiliCt>t
primaeva institutio rerum. . .. n; Summa Monactnsi5, H • iut' naturall' consl~tit in preceptis et
• •
protubitionibus consiliis el permlssionibu~. Verum l'111 q11od dl'n~nhir it1rt' naturali in . . .
permissionibu..et ronsilils. . .." (Wt'lg1m•I. 26#1, l!>.' i, IM)
w
ii
PROPERTY, NATURAL RlGHT, ANO lliE STATE OF NATURE 139
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 judge-
ment 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 demonstra-
tions 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 an-
ticipated 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 to-
gether and to enter into compacts with one another. Thus they established
the first body of law, including law regulating property rights. The argu-
ment 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 pro-
23. 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
S<>nsus, iure naturali id ('SI iudicio rRlinni~ 11pprobante, omnia sunt co mmunia, id t'lll ll'm-
pore 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·
muni<"atio omnium q11r 1'4•J1hlr11111• '""'I'""" 11...·,.'"1111 11~. hoc· de ro iure n.1hm1li qmxl 1lldt11r
r.1tio Vt'I ilutklum rnllnnl• .. (Wrl.11n1I. I 10) c ,,, thlft Yll'W of I h•Kllfflo ...... nhovr, n

140 THE IDEA OF NATURAL RIGHTS
vides for poor and rich alike. But by human law we say, "This estate is
mine. This house is mine. This slave is mine." 25
This seems a straightforward assertion that the origin of property was
conventional, a result of positive human law. But Huguccio found a prob-
Jem here. He gave a cross-reference to the other key text, Dilectissimis, and
pointed out that there property was said to originate "through iniquity."26
According to Difectissimis:
The use of all things that are in the world ought to be common to all. But
through iniquity one claimed this as his own and another that. 27
The author of Difectissimis went on to mention Plato's vision of an ideal
community where all things were shared in common, a reference that
evoked much curious questioning among the canonists as to whether
women were among the things to be shared. 23 The text of Dilectissimis
itself continued more soberly by recalling the example of the early Chris-
tian community at JerusaJem.
!'Ji who owned houses or fields sold them and brought the proceeds
with whatever else they had and laid them at the feet of the apostles .. .
and they were divided among individuals according to need.29
The reference to a common "use" of things was congenial to Franciscan
writers who wanted to maintain that there could be use without owner-
ship. However, this issue became prominent only later on at the time of
the poverty dispute. The Decretists focussed more on the words "through
iniquity." Their problem was to explain how the institution of property
could be legitimate if its origin was iniquitous.
The simplest explanation of Dilectissimis acknowledged that the first
act of private appropriation was indeed unjust; the first person who seized
for himself what had been common to all was an aggressor and a robber.
This culprit was commonly identified with Nimrod, the "mighty hunter"
of Genesis 10, who was often portrayed in medieval writing as a tyrant. On
25. Dist. 8 c.1, HDivinum ius in scripturis habemus, humanum ius in legibus regum.
Unde quisque possidet quod possidet? Nonne iure humano? ... Pauperes et divites Deus de
uno limo fectt et pauperes et divites una terra supportat. lure tamen humano dicitur, haec
villa mea est, haec domus mea, hie servus meus est N
26. MS Admont 7, fol. 10 va, ad Dist. 8 c.1 s.v. lurr ergo human um, cum ius humanum
H • ••
sit ius, ergo non per iniquitatem.. Set contrarium dicitur xii q.i c.ii.
N
27. C.12 q.l c.2, "Communis enim usus omnium quae sunt in hoc mundo omnibus esse
homirubus debuit. Sed per iniquitatem alius hoc suum esse dixit et a Ii us illud."
28. See S. Kuttner, "Gratian and Plato, in Church arid C.m>f'rrimmt ;,, thr Middlt AKr.<,
N
ed. C.N.L. Brooke et al. (Cambridge, 1976), 93-1 llt
29. C.12 q.l c.l. "Omnes autem qui domos Vf'I ilK""' pc>81ild<'h1ml v1•1i..t1-hant t'<l!'t, ('I pn-ti11
£'Orum et reliqua!I res qu~ ha~nt dft•rM>.111, po11rnlr11 11nlr l"" "'M 111><>11!11lnnm1 . . 1·1 di·
vidroantur .!linguli~ prout c111<1111•"I'""
rr-111 "
lf. .
PROPERTY, NATURAL RIGHT, AND TtlE STATE OF NATURE 141
this view, the holding of property eventually became legitimate, in spite of
its violent origin, through customs and laws accepted by common consent.30
Another widely accepted solution explained that the words per iniqui-
tatem (through iniquity) could be taken to mean propter iniquitatem (on
account of iniquity). It was not that the first acquisition of property was
iniquitous in itself but that the institution of property had been made
necessary by iniquity, that is to say by the primal sin of Adam and the
corruption of human nature that followed from it. "By natural law, that is
by the approval of reason, all things are common, that is they would be
common if there had been no sin," wrote Huguccio.31 But covetousness
and avarice had made private ownership necessary. In good Augustinian
fashion some authors presented the institution of property as a partial
remedy for sin and others, including Huguccio, as a penalty for sin.32 This
interpretation of Dilectissimis emphasized a temporal dimension in the
discussion of property; there was a specific era-before the sin of Adam-
when all things were common, and then a subsequent age when private
property was instituted.
In discussing Dilectissimis the canonists were addressing the perennial
problem of first acquisition. How could the initial appropriation from an
original common stock be justified? On this there were almost as many
shades of opinion as there were commentators on Gratian. Different texts
of the Decretum suggested different solutions; but there were some com-
monly recurring arguments, most of which can be illustrated from the
.. work of Huguccio. In considering the views of this outstanding Decretist
we should bear in mind his teaching that the primary meaning of the term
ius naturafe referred to a force of reason and moral discernment innate in
humans, and that other meanings-natural law or natural right-were
derived from this basic one.
Gratian himself opted for a conventional origin of property in human
custom or legislation; but some of his texts suggested an origin in divine
law or natural law. Huguccio explored both lines of argument. Gratian
30. On Nimrod as tyrant and first property owner see the texts in Weigand, 337-339, <'·K·
Ricard us Anglicus, " Nembroth eo ipso quod propria possidebat peccauit ... Hodie uero pm-
pria habere est licitum, non tantum consuetudine set constitutione que communi con1R•n1<11
utcntium est confinnata ... . H
31. MS Admont 7, fol. 2 va, Proeririum, HVel iure naturali, id est iud icio rationi1< ap-
pmbante omnia sunt, id est esscnt, communia nisi esset peccatum .. . .N; fol . Hlra, nrl /1i~t . H
: !
c. I s. v. "'" t'f'f(O humanum, "_ . . Vel iniquitas ibi dicitur peccatum et proprie primi h1>mlnl.• ul
sil i;cnsus ' per' id est 'p ropt<'r' inlquit.1l<'m. ..." (Weigand , 327, 341 ).
32. Alanus, ad L)isr. H c.l 11.v. l11rr, " . . pn>pler iniqu itatem .. . id est pn'J'll"r l'ltlt•111J11111
ini4uittltem ... _" (Wei~nm\, :l41). l 111K111-..·lo. MS A1lmont 7, fol. 10rA, nd Oii;f. H c.l 11.v. lurt
.-rg" /11mrnr111nr. H . niNI 1•nlm h11111111,..n·u!M'I 11111111" l'l'l.•<'nt communla ... !'M'I pn'f'h•r pt"t·
_ •
rntum infli<-tmn 1•111 hommlol 111 ltt'"""' 111 "II •1•1l11·1tu" aJ halwmlum proprlum .. "
(W1·i~rtn1I. :1-lO)
 142 THE IDEA OF NATURAL RIGHTS
clearly stated that by natural law all things were common, but the first
words of the Decretum identified natural law with the divine law of scrip-
ture. Commenting on this Huguccio pointed out that scriptural texts
provided many examples of licit private property. God said to Adam, " In
the sweat of your brow you shaU eat your bread." Also, we know from
scripture that Cain and Abel had individual possessions because Cajn
made an offering from his fruits and Abel from his lambs. And the com-
mandment forbidding theft dearly indicated that it was lawful to own
property.33 Later on Pope John XXIJ took up these same scriptural texts
and used them to buttress his case against the Franciscans.
The Decretist argument for an origin of property in rational natural
law was based on the Roman law theory of first acquisition, incorporated
into the Decretum in a text taken from Isidore of Seville. Isidore wrote that
natural law existed everywhere by instinct of nature not by any legal en-
actment and then continued:
Tus naturale . . . as, for instance, the union of men and women, the pro-
creation and rearing of children, the common possession of all things,
the same liberty of all, the acquisition of what is taken by air, land, or
sea....34
The canonists often noted that, in this text, natural law was said to include
both common possession and individual acquisition. This suggested to
Huguccio an objection that would recur in many later theories of property.
"If I wanted to snatch what was common so that I alone should have it I
would commit theft."35 Huguccio responded by introducing the concept of
permissive natural law, the Roman law category of res nullius, and his own
understanding of ius naturale as reason or the judgement of reason.
All things were common by natural law, he wrote, but "by permission
not by precept." Natural law did not command that all things should be
common or that some things should be private; rather it permitted either
arrangement.36 Elsewhere, as we saw, Huguccio wrote that reason would
33. MS Admont 7, fol. 3ra, ad Dist. 1 c.l, .. Nam iure divino etiam in veteri lege aliquid
erat proprium. Nonne a deo dictum est 'in labore uultus tui uesceris pane tuo'? Nonne Abel
obtulit de suis agnis et Cain de suis frugibus . .. Item nonne furtum tune prohibitum erat,
nee fit furtum nisi rei aliene in proprie" (Weigand, 358).
34. Dist. 1 c.7, .. lus naturale est commune omnium nationum, eo quod ubique instinctu
naturae n on ronstitutione aliqua habetur ut viri et feminae coniunctio, liberorum succes.~io
et educatio, rommunis omnium possessio, et omnium una libertas, acquisitio rorum quaf'
coelo, terra, marique capiuntur .....
35. MS Admont 7, fol. lOra, ad Dist. I c.7, ... . . si uellem 11urripere ut ll<llus haberem quod
esset commune furtum commiterem."
36. MS Admont 7, fol. 4ra, 11d Dist. I c.7, " I)(> iun> nalur•li alii111ld t•:il nlt'um ('I aliquid
est tuum, :!let de permJ:i~lone, non dP prf't'••pln, <!Iii/I hll< <llVlll\111\ llllllHl<l<Ull pwd pit omnln
<'SS<' n1mmuni11 vrl 1111<11111 ''"'"'' prupd11. 11t•t 1wrmittit 1111111111 "'"" • '11t11111mft1 1·t 11li1111n ''"!«'
pniprll\... " ( W1ojl(11111I, .' l'IJ)
PROPERTY, NATURAL RIGHT, AND THE STATE OF NAnJRE 143
approve common property "if there had been no sin"; but here, evidently
thinking of the actual condition of sinful humanity, he wrote that the
natural law of reason favored individual acquisition. On the word acqui-
sitio, he wrote, "This is from the natural law that is said to be licit and
just and from reason and the judg:ment of reason, for reason dictates that
what belongs to no one (in nullius bonis) is conceded to the occupier.''37 In
another context Huguccio suggested that what anyone acquired by his
own care and labor became his own property.38
Even with a concept of permissive law there was still a problem in de-
fending a natural law origin of private property. Isidore wrote that natural
law was based on "instinct of nature," not on any legal enactment; but
Gratian asserted quite explicitly that property came to exist by custom and
enacted law; and the text of Augustine that he cited, Quo iure seemed
clearly to support his position. When Huguccio came to consider this, he
first repeated his argument about permissive law and then explained that,
although property could exist by natural law, only human Jaw defined
adequately the various modes of possessing-such things as purchase, ex-
change, inheritance, prescription. Another canonist wrote that property
was established by natural law and approved by civil law.39 A little later,
the great jurist-pope Innocent IV, writing about 1250, provided a decisive
treatment of this question. He wrote that property (dominium) was a right
according to the natural law of reason; civil law provided only the forms of
action through which property claims were pursued in court. Hence, he
wrote, governments should not arbitrarily deprive their citizens of prop-
erty; a law in violation of a natural right was not valid unless some just
cause intervened. A rescript could take away some form of action de riVl-d
from civil law but could not deny justice altogether since this would bl•
contrary to a natural right. (Or contrary to natural law; throughout thi~
passage of Innocent the meaning of ius naturale shifts between "natural
law" and "a natural right"; sometimes the phrase could have either mean-
ing, or both.)40
37. MS Admont 7, fol. 4ra, ad Dist. 1 c.7, NHoc de iure naturati quod dicitur licitum 11ivl"
fas el de ratione e t iudicium rationis. Dictat enim ratio ut quod in nullius bonis est occup1mli
conceditur" (Weigand, 352. Weigand reads hominis for bonis).
38. MS Admont 7, fol. lOra, ad Dist. 8 c. l , N • acquisitum per laborem et sollkitutlirwm
••
dic itur es!'e meum" (Weigand, 347).
39. MS Admont 7, fol . lOra, ad Dist. 8 c.1, "Non !amen ostenditur eo (I.e. iun- ""lunoll)
•1uahter aliquid pn>prium possidt>atur sicut ostenditur iure humano, ut t>mptiOnt'. tlonA·
lionl', rnmmutationc, legato, 11ucct'S...ione, pn'S<'riptione et huiusmodi. .....; Sumrn11 Animal ~r
•11fl.<tantia, ad l>i5/. 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. <'mt1rnt'nl11ria l11r11-'t'l1/I/ ·""I"'' llflr.o. 'l""''I"" dt'1' rrlnlium (Fr11nlcfurt, I !'i70), 011 X. 1.2.7,
lnl 4v. l\rgulnR thnt " d ty K••Vrrtlllll'lll 11111!.t hnl Id... II" 1111l>t<'c·t11' pmpC'rly uhltrully, lrmn
, 1•11! wnolt•, "Sup••r t1•h11.o 1•t1111n l•h~1111 111 hn• "'"""'"'"""I'"""""'· nun 1111.. 1tll\h1tum r!OM'I In
1,.,.,.1.,1w111 lml1t .. 111•1h11t rl <'hi• hula 'I"'"' • 1l 11lh111"111 "I'"''"'· vrl 11<1111trlt11r cir httl' "'''"'""
144 THE IDEA OF NATURAL RIGHTS
Innocent also argued, in a very influential passage, that all peoples,
even infidels, had a right to acquire property and to form their own gov-
ernments. He wrote that God subjected all things to the dominion of man
as a rational creature. At first all was held in common, but property was
introduced by occupation of things in bonis nullius or by agreements like
that between Abraham and Lot Innocent added an explanation, lacking in
Roman law, of why first occupancy created an obligation in others to re-
spect the right of the first possessor. It was because of the natural law that
Gratian had set out in the first words of the Decretum-the scriptural rule
that we should not do to others what we do not want done to ourselves.41
Innocent's view remained influential but it was quickJy challenged by
Hostiensis, the greatest canonist of the next generation. He held that, after
the coming of Christ, rightful dominion could exist only in the Christian
church. The argument about the rights of infidels continued all through
the medieval era and took on a new life in the sixteenth century in the
Spanish debates about the rights of American Indians.
So far we have seen that, in different scattered passages, the De-
cretists attributed the origin of property to the divine law of scripture, to
natural law, or to human law. Commenting on this, Rudolph Weigand ob-
served that, not only did the canonists often differ from one another but
that sometimes the same author seemed to contradict himself in different
contexts. It is true that canon law, even more than Roman law, provided
an armory of texts that could be used to support a wide variety of later
opinions-including those of Pope John XXII and William of Ockham.
But, although Decretist commentary was rich and varied, much of the
apparent incoherence disappears when we realize that the different lay-
ut sunt dominia, obligationes et huiusmodi. Et non datur a iure civili vel ab imperatore ut ac·
tiones ... Et d ico non valere legem vel rescriptum in praeiudicium naturalis iuris nisi iusta
causa interveniat .. . Sed et tune, ut quidam dicunt, licet sustineatur quod auferat actionem,
tamen quin reddat iustitiam auferre non potest, cum esset contra ius naturale.... De iure
autem naturali dixi dominia ad aliquem pertinere, id est de iure gentium, quod dicitur nafu.
rale quia ratione inductum est.• insti de reb. divisi. § Singulorum (lnsl. 2.1.11) .. . quod eliam
dicitur naturale ius quia apud omnes generaliter est.ff On this text see K. Pennington, Tht
Princt lfrUI tlrt 1.Aw (Berkeley, 1993), 149-51, 222- 23. Innocent was following the Roman law
tradition of Caius that identified ius naturalt with ius gmtium. The argument that a right
acquired by natural law could not be violated was repeated by Hostiens.is and Johannes
Andreae commenting on this same text of the Decrttals.
41. Commtnlaria ad X.3..33.8, fol. 429vb-430ra, "Deus haec universa subiecit dominio ri\·
tionalis creaturae .. . et haec a principio seculi fuit communis quousque usibus priorum
parentum introductum est quod aliqui aliqua el a Iii alia sibi appropriant ... quia naturale est
res communes negligi ... et fuerunt a principio cuiu!l<'Unqllt" qui (l("cupavit, q uia in nullius
bonis erant nisi Dei .. . sed ab aliis occupatum OC't'Upl'n' ™"' lkcbat quia ficl>at contra k>gem
naturae, qua quilibet inditum est ut alii ll(m fadat ljll<lll 11ihl non vult flt•ri." On lnnoct>nt's
argummt and tM crilicism ol tl08tirru1lll ,..... ,. Muhtu..n, l'•'I""'· l.11rc'Y"" 1111111,,fiolrl~ H'hiJ,,.wl·
phia, 1979),6- 17.
PROPERTY, NATURAL R IGITT, ANO THE SrA1'E OF NATURE 145
ers of thought an author presented often referred to different historical
epochs.
Embedded in the texts of the Decretum, and occasionally stated explic-
itly, there was an historical account of how human government emerged
after an origina) age of prelapsarian innocence. After the Fall of Adam,
men lived for a time as scattered individuals guided only by natural law.
According to Gratian this lasted until people began "to gather as one and
live together" in the time of Cain who first built a city (Gen. 4.17). Then
there came an age of customary law until. finally, actual legislation began
in the time of Moses.42
Jn the evolution of property a similar development occurred. First
there was an age of innocence and community; then, after the sin of Adam,
a time ante occ11pationem as one canonist put it, when the world lay open for
appropriation.43 Individual properties could then be acqu~red in acc.or-
..
dance with the rational natural law that granted ownership to the first
.
~
occupant of a res nullius, and in accordance with the needs of fallen hu~a~
nature. (Here the Christian doctrine of the Fall was grafted on to the ongt-
nal Roman law theory of first acquisition.) Specific divisions of property
were made by human compacts like that between Abraham and Lot
recorded in Scripture and occasionally, by direct divine grants. Finally,
property rights came to be defined and regulated by the growth of custom
and the laws of kings. For a systematic thinker like Huguccio, underlying
• this whole process was ius naturale understood as human reason, "a natu-
...'i
ral force of the soul," that gave rise to different perceptions of what was
naturally right in different historical circumstances.
Tiieologians
Theologians as well as lawyers wrote extensively about the origin of
property in the thirteenth century. I am treating them somewhat cursorily
here because, rather surprisingly, the theological material was not much
~·
used by Ockham or his adversaries in the Franciscan dispute. Ockh~~
did occasionally quote Aquinas when he could find a text of the Domm1-
can master that happened to suit his own argument; but, in discussing our
specific problem, the origin of individual ownership, both sides rclit•d
42. Gralian, dictum antt Dist. 7 c.l The text of Dist. 7 c. I also referred to lht> fumulin11
ldwgivers ol the Egyptians, Grttk.1, and Romans. H05tiensis gave a similar his torical 11n~•unl
of the dt>velopmcnt of Jaw in Summa l>omini Hrnric-us Cardino/is Hostirnsis (l.yon11, l'iJ7),
l'Tfll"mium, fol. 2va. Rufinu!I too cl1'!W'rlh<-.I how the first humans, reduced almo:o1t In ttw con
dition of animals aftt>r lilt- l'.1111, 11•111hM'<l 111111 1•no11Kh 11parks of ju~lice and undt•r.olandinK lo
n1mt• lt>jtf'lh1•r and cn•alr 11 h<"IV of l.11w (Sunrm11, 4)
4J Sin1 nlu~. "Omnl11 ..uni &'011111111111" ' ""' 11111111 ~h. Id ••ftl n•mmunitt'r omnll111" l'"h-111
.mtr '"·1·11p11li111w111" (Wrl"'""''· 1]111
146 THE [DEA OF NATURAL RIGHTS
almost entirely on texts drawn from the Deere/um and the Bible, together
with their ordinary glosses.
In several scattered contexts, Thomas Aquinas presented an influential
though not altogether coherent theory of property. For Thomas natural
law was essentially a law of reason, "nothing other than the participation
of the rational creature in the eternal law."44 But, when he came to explain
the text of Isidore stating that by natural law all things were common,
Thomas argued that natural law could have a different meaning, as refer-
ring to a primitive condition of mankind. "We might say that for man to be
naked is of the natural law." According to this understanding of the term,
private property was not introduced by natural law but by human artifice.
It was an addition to natural law devised by human reason for the benefit
of human Hfe.45
In another context Aquinas wrote of a "natural dominion" that be-
longed to humans because of their faculty of reason "in which the image of
God consists." He also wrote that it was by virtue of human free will,
through which a man was master of his own acts, that he could be master
of external things also.46 Aquinas explained that private property was
an acceptable and necessary way of exercising man's natural dominion
because common property was easily neglected and could give rise to
confusion and discord. It was fitting, therefore, that external goods should
be held by individuals as regards "the power of acquiring and administer-
ing things"; but, as regards use, they ought to be treated as common in the
sense that they were to be shared with those in need. This argument re-
stated the doctrine that the canonists had elaborated earlier, and, indeed,
Thomas's words here read like a paraphrase of Huguccio.47 Thomas never
concerned himself directly with how the first acquisition of private prop-
erty from a common stock could have come about licitly, and he never
wrote specifically about a "right" (ius) to property.
Among Franciscan writings, the Summa of Alexander of Hales main-
tained that natural law prescribed common property in the state of
innocence and private ownership in the state of corrupted human na-
44. Summa thtologiot, 1.2.ae.91.2.
45. Ibid., l.2ae.945.
46. Ibid., 2.2ae.66.l ; NDe perlectione spiritualis vitae# in <J,Nra omnia iussu l..Lonis XIII
P.M., 48 vols. (Rome, 1882-1971), 41:79.
47. Thomas wrote that external goods could be considered in two ways, H • unum
••
est potestas procurandi et dispensandi et quantum ad hoc lkitum est quod homo pro-
pria possidet . .. sed ut communes, ut scilicet de facili aliquis eos communicet in necessitate
aliorum. " Cf. Huguccio ad Dist. 47 c.8, s.v. Quod ~I, MS Admont 7, fol. 65ra, " . . . proprium
quoad dominium vel potestatem dispensandi, commune quia aliis communicandum tem-
pore necessitatis." Of course Aquinas also knew Aristotle's recomm.,nd11tion or privalt•
property and common use in Politics 2 .5.6-8; but the only tt'xl ho• 1·ho,.1• tn dh• h..n• w11,. l
Timothy6.17.
PROPERTY, NATURAL RIGHT, AND THE STATE OF NATURE 147
ture:48 Duns Scotus, however, citing the canons Quo iure and Dilectissimis,
maintained that individual ownership was not introduced by natural
law or divine law but by positive human law, established either by the pa-
ternal authority of Adam or by the po1itical authority of an elected ruler.49
Bonaventure and other Franciscans often emphasized that ownership
could not be acquired without a will to own. As Richard of Conington
wrote, "No one has dominion without desire and will." It was precisely
this will to dominate that the friars claimed to have renounced.50
On the eve of the Franciscan poverty dispute two rival theories of
property were presented by the Augustinian, Giles of Rome, and the Do-
minican, John of Paris. Giles combined a historical account of the origin of
property with a theocratic doctrine of papal overlordship. He argued that
private ownership came to exist through a series of conventions and com-
. i
pacts beginning with the sons of Adam, renewed by the sons of Noah,
and then repeated many times as the human population increased. But
Giles also held that, since God was the lord of all, and the pope was God's
vicar on earth, all licit dominion-including both property and ruling
authority-was held ultimately from the pope. There could be no right-
ful property or rightful government outside the church.st These argu-
ments drew a quick response from John of Paris. He maintained that
"individuals as individuals have right and power and true dominion."
They acquired this right, not from any ruler, either pope or king, but by
.
.(
their own "skill, labor, and industry." The pope was only an administrator v
of property that belonged to the church, the king only a judge who could
settle disputes about lay possessions. Neither was the source of the indi-
vidual's right to property.52
By around 1300 a considerable body of theological argument existed
11. about the origin of property, but no consensus had emerged. Aquinas
48. Altxnndri dt Halts .. . Summa thLOlogie11, 4 vols. (Quaracchi, 1930-48), 4:348. Alexander
based his argument here on the canonistic doctrine concerning the precepts and "demon-
strations" of natural law.
49. Opus Oxo11itnst, 4.15.2 in /oannis Duns Scoli ... opera omnia, ed. L. Vives, 26 vol11.
(Paris, 1891-95), 18: 265, 270-71. Scotus did not accept the canonists' doctrine of permlMlvr
natural law. He held that community of property was at first a precept of natural law. but
that this precept was revoked by God after Adam's sin.
50. On this aspect of Franciscan thought see especially Paolo Grossi, "Usus far ti. l.n
no7.ione di pmprietl nella inaugurazione dell' eti nuova," Qiuidtnri Fiortntini P" In slorin dtl
pmsirro gruridiro modtrno 1 (1972): 287-355. The emphasis on will and intention wu not.
however, just a product of Franciscan voluntarism. It was rooted in Roman law. St'f', «'·I'·
Vixrst 41.2.3.6, "If you are on a pil'Ct' of land and you lose the will to pos~ it, you lmnwJI
att>ly reasc to ptis!'ll'8s it."
!il . R. S<-hol1.• ~i.. /\l')litliu' Ron111m1~ I>.- ,.. ., .,,.,./,1.~lln1 111•lrsl11lr (Weimar, 1929), 11- J:\, 70 7'i,
IO:l · 111.
'i2. E lll1•lrn~tri 11, '°'' , /11li111111r'• Uull/1111 '""' /'11rl• 1lll<'r l.llni,11lrrl1r 111111 ,,a,.-rlirlrr ( ;fl4"•/t
(StullKMI. l'lf,111. 'Ito •17
148 THE IDEA OF NATURAL RIGHTS
treated individual ownership as something artificial, an addition to natu-
ral law devised by reason; but he gave no historical account of how the
division of things had actually come about. Giles of Rome provided a
historical explanation but, rather incongruously, subordinated it to a theo-
cratic ideology. John of Paris argued that property was acquired by labor
without addressing, or even apparently envisaging, the central objection to
such a theory. (How could an individual's labor give him exclusive rights
to what had been common property?) Duns Scotus required that there be
a ruling authority before property could be instituted, but he left undeter-
mined whether the original institution was by the paternal authority of
Adam or the political authority of an established government-and dif-
ferent consequences could follow from the two alternatives.
The Franciscan dispute of the early fourteenth century led to a recon-
sideration of the whole question. Two especially interesting contributions
to the debate came from the Franciscan spokesman, Bonagratia of Ber-
gamo, and from Pope John XXII himself. Their opposing views, both
marked by an odd kind of primitivism, shaped the immediate context
within which William of Ockham eventually took up these questions.
BoNAGRATIA OF BERGAMO AND JOHN XXII
Bonagratia and John XXII were both trained canonists and both ar-
gued from canonistic texts, but each of them presented an idiosyncratic
argument about property in a primordial state of nature that moved out-
side the framework of earlier juristic thought. Instead of pursuing the
kind of historical argument that we can find in the Decretist texts, each en-
visaged a primeval condition of things that provided permanent ideal
norms for their own society. Bonagratia presented his views in a Trncta-
tus de paupertate, written in the early stages of the Franciscan controversy
when John XXII initially invited a debate on evangelical poverty.53 At first
John ignored Bonagratia's arguments about the original state of nature
but, when they were repeated in a later manifesto of Michael of Cesena,
the pope responded to them in Quia vir reprobus, the decretal that Ockham
in tum commented on.
There is always a danger of circularity in arguments that seek to
derive norms for an existing society from a supposed primeval condition
of humankind. Typically an author projects prejudices derived from reac-
tions to his own culture on to an imaginary state of nature and then uses
the state of nature he has invented to justify the prejudices he set out with
in the first place. Bonagratia and John XXII both, in different ways, exem-
53. L. Oliger, " Fr. Bonagrati;a de Bergamo t•I e lu1' Trac-t11tu" dt• Chrl<'lll <'I npo!ilnlorum
paupt•r1ah•," Ar1·/1i1ium frt1111"i~.-nn11m hisllorinmr 22 ( JQ2Q)· 7111 :ni;. 4117 'i 11 .
PROPERTY, NATURAL RIGllT, AND THE STATE O F NATIJRE 149
plify this way of reasoning. Each of them envisaged an age of primal in-
nocence when there was no sin, no false consciousness as we might say
nowadays, no alienation of man from himself or his world. The conduct
of life in this age of authenticity established a norm for future human be-
havior. Bonagratia's Franciscan dream world was entirely without prop-
erty; in Pope John's imaginary Eden private ownership was a dominant
fact of life.
At first glance, it is not evident why a fourteenth-century Franciscan
dispute should give rise to such speculations about earlier ages of human
history. But, in fact, the habit of mind I have suggested, an inclination to
see the remote past through a prism of present-day concerns, was a char-
acteristic feature of Franciscan thought. There is an irony in the way the
situation developed. Contemporaries of Francis saw him as a saint who
imitated perfectly the life of Christ. But gradually a curious reversal came
about. The Franciscan way of practising poverty, it was assumed, showed
how Christ and the apostles must have lived. Francis himself taught best
by example. His own way of living an evangelical life was to obey all the
precepts and counsels of the gospel in a very literal and simple and down-
to-earth fashion. (When, for instance, Francis remembered the text "Take
no thought for the morrow," he told his brothers not to soak beans
overnight in order to prepare them for eating the next day.) Francis had no
interest in legal niceties and indeed he had difficulty in composing a Rule
at all. But, after his death, the Franciscan way of life came to be defined
with elaborate technicalities drawn from civil and canon law, culminating
in the multiple distinctions of the decretal £xiit. Then all this thirteenth-
century legal terminology was projected back on the life of Christ. The
Franciscans came to believe wholeheartedly that Christ and the apostll's,
like good Franciscans, had renounced all "property, possession, usufruct
and right of use," retaining for themselves only a "simple use of fact."
This was how Bonagratia of Bergamo argued in his first approach to
the problem of poverty. Bonagratia set out to prove that Jesus and his first
followers had nothing "as regards property or lordship or right of bringing
suit." His underlying purpose of course was to prove that the Franciscan
way of life that embodied these same principles was truly evangelical.
But he did not begin, as one might expect, by arguing from scriptun·
that the apostles possessed nothing, and then showing how the Francis-
cans faithfully followed their example. His argument moved in the oppo-
~ite direction; the example of Francis, as understood by his Order, shnwt•(t
what the teaching and practk<' of Christ must have been. Bonagratia was
n·rtain that the pov<'rly of Francis could not have been diffl'rt'nt fmm
llw poverty <'Xt•mplifil•tl In tlw lift• u( (. 'hrist. This was pn.wl•d, lw main·
lilim•d, not only hy llu• ho1l11rNN 1111111' 11nh1t's lift', hut nlsn, mirnculnrncly, hy
tlw sti~m,\lil, till' wo11111t" 111 l 'lu Int th11t 11p1w.m•d on his body. M11r1•11vc•r,
 150 THE IDEA OF NATl.JRAL R IGHTS
Pope Gregory IX, followed by several other popes, had explained that
Fran~ underst~ apostolic poverty to mean the renunciation of all prop-
erty, singly and m common.54 It followed that Christ and the apostles had
renounced everything, singly and in common. "If blessed Francis vowed
~nd pro~ to observe the gospel, living without property singly or
m common, It follows that such was the teaching and rule of the gospel
and consequently that Christ had nothing, singly or in common. " SS After a
long quotation from Exiit, Bonagratia added that, since Francis had not
only practised poverty but also taken a vow of poverty, the apostles must
have taken a vow of poverty too.
Bonagratia was not content with this level of argument. His further
step was to restate the story of primal innocence in the Garden of Eden in
terms of the Franciscan teaching on poverty; then he defended Franciscan
poverty as a return to the state of innocence he had imagined. Here again
an aspect of Francis's own personality and behavior provided a starting
point for a later growth of Franciscan theorizing, or fantasizing. Francis's
exceptional attitude to the natural world, his love and compassion for all
creatures, and his extraordinary power to control birds and animals are
well attested in the first lives of the saint.56 Commenting on this, Bonaven-
ture wrote that Francis had "pictured anew the state of innocence." Before
Bonagratia intervened this had been just an engaging theme of Franciscan
piety. Bonagratia turned it into a technical argument for the doctrine of
apostolic poverty that was peculiar to the Franciscan Order. In the state of
innocence, he wrote, there had been no division of property. And Christ
had come to renew this state of innocence in all who wished to follow him
perfectly-that is, the apostles and, later, Francis and the Franciscans.57 In
a later passage, Bonagratia described this primordial state of innocence
that Christ had reestablished in the precise language that the Franciscans
used to define their own way of life. "If Christ held the state of innocence
54: ~id., 329, NPrimo ex eo, quod fere omnes romani pontifires qui fuerunt a tempore
Franaso . . . confinnaverunt regulam et vitam beati Francisci, que est sanctum evan-
~lium observare in altissima paupertate, scilicet in non habendo aliquid nee in speciale nee
m comune, tanquam regulam et vitam evangelicam a Christo doctam.. .. Quern etiam
statum ... Christus .. . miraculose confinnavit, cum ipsum beatum Franciscum tanquam
suum specialem sectatorem suorum sacrorum vulnerum stigmatibus insignavit. ... H
55. Ibid., 330, "Sequitur quod si beatus Franciscus vovit et promisit evangelium vivendo
sine proprio in specia)i et in communi, quod talis fuit doctrina et regula evangelii et per ron-
sequens quod Christus non habuit in speciali nee in communi.H
56. See John Oakley, "John XXII and Franciscan Innocence, Fr11ncisam Stud~ 46 (1986):
ff
217- 226.
57. TTact11tus, 489, "Et ipse Christus venerit . .. ad omnem materiam !IOllicitudinis
temporalium perfecte eum sequi volentibus amputand11m C'I 1111 ~lfttum inn<K'"t'TltlaC' r«'no-
vandum."
PROPERTY, NAnJRAL RIGHT, AND THE STATE OF NATURE 151
he had no ownership of anything singly or in common, but only simple
use of fact. "58
Bonagratia's most detailed discussion of these questions came when
he addressed an argument commonly raised by the Franciscans' adver-
saries. There could be no complete renunciation of all ownership, they
asserted, because, as regards consumables, ownership was inseparable
from u se. To refute this assertion Bonagratia turned again to the age of in-
nocence. His own argument had two stages. First he showed that use of
fact was mandated by natural law, then that there was no property (though
there was use of fact) before the sin of Adam.
Bonagratia argued like this. It was a precept of natural law that every
person should seek to preserve his own life; but this required the use of
consumable things like food and clothing; therefore the use of consum-
ables was a precept of natural law. Moreover this precept was inherent
in natural law understood in many senses of the term-Bonagratia men-
tioned, with appropriate juristic citations, the law that began with the
origin of humankind, the law that was observed everywhere by instinct
of nature, and the law that nature taught all animals. These natural laws
(iura naturalia) could not be rejected or changed in any way. 59 But proper-
ties and possessions and usufructs and right of using were all rights
introduced by human law, and all such rights could be renounced volun-
tarily.60 Jn the age of innocence, Bonagratia continued, the use o f consum-
ables was also a precept of natural law understood in yet another sense, as
divine command, for God had told Adam to eat the fruit of all the trees
except one.6 1 But-and this was the crux of the Franciscan's case-ther<'
was no property in the age of innocence.62
Bonagratia illustrated his argument throughout with an array of
.- dozens of citations to civil and canon law but the two essential texts were
the ones I have already discussed in considering the work of the De-
58. Ibid., 497, "Set in statu innocentie fuissent homines sine dominiis distinctis. fikut
patet VIII di. c. l (Quo iurt). lgitur si Christus tenuit statum innocentie, non habuit d ominium
d istinctum in speciale vel in communi alicuius rei, set solum simplici fact i usum rerum."
59. Ibid., 503, " Praeterea usus facti rerum necessarium ad s ubstentationem nature t'!lt d t•
iure naturali ... Et ideo nee per legem nee per renuntiationem sive abdicationem nee ali<Jll"
modo tolli vel mutari potest. w
60. Ibid., HProprietates vero et possessiones et dominia rerum sunt a iure humano. VIII
di,.t. Quo i11rt'. .. . Cerium est autem quod omni iuri privato, quod a\icui compo:•t..1 " "
humano iure, pot<'St quis rt'nuntial"l'. . . ."
61. rbid., 504, '"Quod ault>m usu"' n.•rum, a limento rum cadat sub preccpto lt:Ki• m1111n·
1>.111'1 ... in "'tatu sciliet>t innoct'f1tic•. lli.•11.~ d('(jit d uo precepta ho mini: unum d(• c·unmM'
dc•ndo, St>cundarium dC' non cornm1.. h•111lo.
62. Ibid., _i;()fi, '"St•t nullu~ 1mtr I"" ,·11111111 h"hUL"-"''' tfominium C'.1n1m n•nim, •!Ill' 11•11 n•n
~111n11ntur ··
152 THE IDEA OF NATURAL RIGHTS
cretists, Dilectissimis and Quo iure. Bonagratia quoted both of them again
at this point in his argument. According to Dilectissimis, he noted, the
use of all things ought to be common to all; it was "through iniquity" that
individual property had come to exist. And, according to Quo iure, prop-
erty was introduced by human law.63 So before the sin of Adam there was
no meum and tuum, no "mine" and "yours." It follow.ed that, in the age of
innocence, there was use of consumables in accordance with natural law,
but no property; Adam never really owned the fruit that he ate. One
might argue that the original condition of things was irrelevant for future
ages, Bonagratia noted, because the state of innocence did not last long;
but, he replied, it could have lasted. Adam had it in him not to sin, and
if he had not sinned the common use of all things without any property
would have persisted everywhere among all people at all times.64 It was
clear then that the apostles and the Franciscans (who had returned to the
state of innocence according to Bonagratia's earlier argument) could Jive
in this fashion, renouncing all ownership, even of consumables, and re-
taining only a simple use of fact without any right of use or usufruct.65
Bonagratia's argument has not received all the attention it deserves in
modem histories of natural law and natural rights. The best account of it, a
detailed and perceptive appraisal, was given by Giovanni Tarello,66 but he
was misled at one point by Bonagratia's use of the term iura naturalia,
where the Franciscan referred to the various kinds of natural law. Tarello
thought that Bonagratia had introduced a subjective meaning of ius into
his argument here and that he was presenting a novel doctrine of inalien-
able natural rights. But this is a misreading of the text. Bonagratia used the
plural form, iura naturalia, because he was quoting, word for word, from a
passage of the Institutes that he cited, and in that context (and in Bonagra-
tia's own context) the words referred plainly to natural laws.67 Bonagratia
63. Ibid., 504, "Certum est quod stante iure nature, nullus potest dicere de aliqua re: hoc
est meum hoc est tuum. Hee enim duo pronomina meum et tuum, ut dicit beatus Oemens.
sunt ex iniquitate ... introducta ... Xll q.1 c. diltctissimis, et Augustinus ... VIII dist. c. quo
iurt... ."
64. Ibid., "Potuit enim prim us homo non peccare et sic usus omni um rerum semper fuis·
set in omnibus hominibus...."
65. Ibid., 505, " Patel igitur ex predictos quod apostoli et fratres Minores in speciali et in
communi potuerunt a se abdicare dominium et proprietatem ... et ... tantummodo usum
facti simplicem retinere"; 508, "Quia simplex facti usus utentibus n.ichil iuris prebet. ac qui
habet usumfructum, habet ius in re...."
66. Giovanni Tarello, " Profili giuridici della questione delta poverti\ nt'I Franrescanesimo
prima di Ock.ham," Univtrsitit dtgli studi di Cen01Hl. Ann11li dtll11 far<>lllJ di xiuri~priulmlll 3
(1964): 338- 448.
67. Traclatus, 503, ".. . naturalia iura, qur l\ru~l 1mmrio l""".. I'"' l'l'rvilnl11r, 1livina •1undilm
providmtiil cons tituta m•mpn firm., "''!Ill' lmm11t11l•llln p,.rmn111•11t ln~tll . 1lt• iun• nnlu ·
rali , I.I, drnl firwm Yl'rl> Ml m1t11rt1ll<I •• llo11n.,,rnll11 w1,. ' l"''""K 111,.rnlly hrll' Imm /11.<I.
PROrERTY, NATURAL RIGHT, AND THE STATE OF NATURE 153
in fact presents us with a state of innocence in which there was a duty to
obey the precept of natural law commanding self-preservation but, so far
as he tells us, no corresponding natural rights. He made no mention of a
natural law based on human reason that might justify private property or
of rights related to such a law. Bonagratia referred to the idea of subjective
rights only in connection with human laws and then only to argue that
such rights could be freely renounced.
When Bonagratia described the state of innocence he was imposing
new Franciscan interpretations on the old texts that he quoted. The idea
that all things were common in an original state of nature was widespread
in earlier writing; and Dilectissimis did indeed refer specifically to common
use. But none of the many canonists who commented on the text had in-
terpreted it as meaning that the fruit Adam ate did not become his own, or
that he had no right of use or usufruct in the things that he actually did
use. These were distinctively Franciscan ideas. Similarly, no one except
Franciscan apologists maintained that the apostles had owned no property
in common; the relevant texts in the Acts of the Apostles seemed to state
the opposite view quite clearly. Finally Bonagratia's idea that the apostles
and then the Franciscans had returned to a state of prelapsarian innocence
was highly unusual. Bonagratia's view that the primeval state of inno-
cence was a normative condition to which humans could and should
return was a new and potentially subversive doctrine.
The Franciscan spokesman concluded his argument by pointing out
that, if indeed use could not be separated from ownership in consum-
ables, it would follow that Christ and the apostJes had owned property
not only in common but also individually since they consumed things as
individuals; but such a conclusion was obviously heretical and absurd ac-
cording to Bonagratia. When Michael of Cesena repeated the charge of
heresy and the argument from the state of innocence in his manifesto of
1328, Pope John XXII took up the challenge and showed himself entirely
willing to embrace as Catholic truth the "heretical absurdities" that his ad-
versaries condemned.
There were plenty of arguments within the existing armory of law
and theology that could have been used against the dissident Franciscans;
but, when John XXII made his final response to them in Quia vir repro-
bus, he chose to strike out on a different and original path of his own. His
adversaries maintained that the apostles had returned to the primeval
state of innocence. Pope John did not choose to challenge this dubious
assertion; he just invented a different state of innocence to suit his own
....:;· argument.
•. 1.2. 11 . ~· ·r;m·llo. 421> JO Kr-1..n lnM tu llw """'I. ul Vlll"V· ·ri\n-llo 11t1Kgr11t..d th111 ll1H1"M'"""
:" rntlwr thom ( kkh11m fhol l11tm1h1t .,,1 11 •ul•f<•• tlv11 nw11nh11( of th.- wnnl /uo
 154 THE IDEA OF NATURAL RrG HTS
Bonagratia and Michael of Cesena appealed to Dilectissimis to prove
that at first there was only a simple factual use of things without any indi-
vidual or common ownership. John replied that Dilectissimis itself implied
a state of common ownership even before Adam and Eve had sinned. The
Decretist text explained that, after division was made, one man could call
this his own and another that. But, John argued, if the division produced
individual ownership, then what was divided must originally have been
owned in common. lt was not simple use of fact that was divided but
common property. 66
This was a fresh way of arguing about Dilectissimis, but the underlying
assertion that there had been common ownership in the original state of
nature was familiar enough. The next step in John's argument was more
unconventional. Although Adam and Eve had owned things in common,
he asserted, there was a still earlier stage of things when Adam alone
owned as a single individual. God said to Adam, "Have dominion over
the fishes of the sea and the birds of the air and all living creatures.. .."
(Genesis 1.28). And if Adam had dominion he was a domin11s, a master
or owner.69 There was an equivocation here, as Ockham would point out,
between two meanings of the word dominium, and John XXIJ, as a pro-
fessional jurist, can hardly have been unaware of it; but the pope was
interested only in refuting the Franciscan claim that there had been no
property in a state of innocence so he persistently used dominium in a uni-
vocal sense to mean individual ownership. The text of Genesis that John
first cited did not make it clear that God's words conferring dominion
were spoken to Adam alone before Eve was created, so the pope reinforced
them with a reference to Ecclesiasticus 17.1-5, where we read, "God cre-
ated man of the earth . . . and he had dominion over beasts and fowls. He
created of him a helpmate like to himself. .. .' "]O For Pope John, this dearly
indicated that Adam had dominion before the creation of Eve; but this
meant that Adam was at first the sole owner of the world, for there were
no other persons to share it with him. There could be no common owner-
ship when only one person existed.71 What God had established as a
68. Bullarium Francisamum 5: 417-IS, " Haec autem divisio facta fuit eius rei, cuius prius
erat communio; divisio autem facta est rerom et non usus simplicis facti, ut patet, quia alius
dicebat hoc esse suum et alius aliud .. . sequitur, quod ante divisionem quoad rerum do-
minia communio erat."
69. Ibid., 422, " f.t dominamin i . .. Ex quibus evidenter apparel, primas parentes . . . dcr
minium in statu innocentiae habuissent, Et si quaeritur utrum illud dominium proprium
fuerit vel commune, videtur ... quod ante fonnationem Evae dominium temporalium i\dae
proprium fuit non commune."
70. Ibid., 423, " ... cum de solo Adam dkitur. <Jtmd <iomin.llw1 ··~t lw.•ti11rurn 1•1 volatil·
ium, sequitur quod t>I solus dominus foil .. . •
71. Jhid., 422, "Commune quidc•m C'~llC" " " " , ......... 'Ulll ....... I"" h•111por•· mo h1t•r i1 o•t
r<"!lpt"<"tt• unius . . . nihll did «nmmmH• pnHll "
PROPERTY, NATURAL RIGHT, AN D TifE STATE Of NATURE 155
pattern at the very beginning of things in an ideal state of nature was not
common possession but individual property. This was John's original con-
tribution to the debate. It went counter to the whole tenor of the canonistic
tradition that he had inherited.
John developed his argument extensively in a final discussion toward
the end of Quia vir reprobus. Here he addressed the central question that we
have been considering. How did private property come to exist in the first
place? Or, as the pope put it, "By what law was the right of property or
ownership introduced?" The pope's adversary-John always referred to
Michael of Cesena simply as "the heretic"-argued that property was an
institution of human law and he quoted Quo iure to prove the point. But,
the pope argued, the heretic was wrong; property was really established by
divine law. Quo iure itself stated that, "We have divine law in scripture,
human law in the laws of kings." But in scripture we can read that property
existed before there were any laws of kings or even any kings.n John next
repeated his assertion that, in the original state of innocence, Adam at first
had sole dominion of temporal things; 73 but now he carried the argument
further. The pope was concerned all along to prove that the suum-<>ne's
own-existed by divine law before there was any human legislation. He
therefore maintained that, after first instituting property in the age of in-
nocence, God reinstituted it again and again. After the Fall, God said to
Adam, " In the sweat of your brow you shall eat your bread." So Adam
could call his bread suum, his own; and this was before there were any
kings. Abel made an offering to God from his flock, so he too had property.
Noah also could call something his own, for he had a vineyard. Later God
1
; made specific grants to Abraham and Isaac and to the children of Israel
through Moses. It followed that private property existed "in the state of in-
nocence and after the Fall of our first parents and before the Flood and after
the Flood"-and all this before there were any laws of kings.7•
Moreover, John argued, property could only have originated in divine
law. God was the lord of all temporal things by right of a creator bt•-
cause he made the world out of nothing and by right of a maker becausl'
he shaped creatures out of his own material; so dominion of things could
be conceded to humans only by a divine grant The pope concluded:
n . fbid .• 440. .... . ius enim divinum est, quod in scripturis divinis habemus. ut k•gitur
VIII di . cap. Quo iure . . . In scripturis autem divinis habemus, quod, antequam ' "II.'""
n·11.t11n,
immo etiam antequam regcs es.<;('flt, rt'S aliquae a!icuius erant: ergo iure di vino .lliquL~ di<1•r..
puteral, aliquid suum CS.'!(>."
.. 73. Ibid .• " Die-it c>rgo, qu01I d1•min.1tw1 ftU'rit; ex quo sequitur quod dominium h~
1 huil ... ...
74. ll>iol., "'Ex 1 1uihu~ 1111mlh11R
t1r~um primo r11m I"'"'"'""' "'
n·y,11m .tll•111t.I ••!<!«' •m1m ··
I'""'' •I""'' 11li1111i!I l't in !ll.1l11 inntll' <•nlhw ,., 1•0111
~11h• 111111 .. 111111 rt pu~t di111vl11m •lin•n• potrr"I "h1r lur,.
 156 TuE IDEA O F NATURAL RIGHTS
Dominion of temporal things was not introduced by primeval natural
la"". understood as the law common to all animals . . . nor by the law of
nations, nor by the law of kings or emperors, but by God who was and is
the lord of those things.75
John still had to account for the words of Quo iure which stated ex-
plicitly that property was introduced by human law. He explained, as
lnnoc~t IV had done.earlier, that human law established only the forms
of action through which property claims could be pursued in court. Or
perhaps, John suggested-and here he was stretching his argument rather
far-perhaps Augustine had never really meant what he wrote, but was
m~rely pu_tting forward his argument as a debating point in disputing
with heretics.76
Jotu:' finally turned to the central issue of the theological dispute over
e~~gelical ~verty-whether Christ and the apostles owned anything, in-
dividually or m common. In keeping with the whole preceding argument,
~e adopted th~ position most offensive to the Franciscans by asserting that,
~ ~e evangelical ~ay of life, there was not only common property but in-
d1v1dual ownership. As God, Christ held universal dominion from all
~temity and as man from the moment of his conception. During his
hfe on earth Christ also acquired particular things through the normal
proc~ of purchase or gift. Jesus lived in a poor and humble fashion
m this world, not because he lacked dominion, but because he refused to
accept the revenues that were due to him. He was like a king of France
who, after traveling abroad, returned to his own country incognito and
chose to live as a mendicant.77
The apostles too owned property for which they could sue in court.
After the death of Christ, the disciples in the gentile churches continued to
own private property. The apostles and disciples at Jerusalem did indeed
establish a community of goods, but what they shared was common own-
ership, not just use of fact as the Franciscans maintained. Also, as John
had earlier explained, when portions of food were assigned to the needy
members of the community, each became the owner of his own portion.78
Th~ugh ~e ~~ole course of ~ohn's argument there was a persistent
emphasIS on md1v1dual ownership as a normal and rightful pattern of
human conduct going back to the very beginning of the human race and to
the state of affairs that God had established then. The pope acknowledged
75. Ibid., 441. On Locke's argument from God as maker see J. Tully, A Discou~ on Prop-
erty (Cambridge, 1980), 36-38.
76. Ibid., #Quo iurt . .. loquitur enim de iure agendi in iudicio, cuius formulas civil<' ius
et n on aliud introduxit ... Vel potest d ici, quod AuRu"tinu~ ho<.· clk ...bnt rum h11l'rc>licis dis·
putando, non quod hoc pro Vl'ritate t<'fWWI. . ··
77. Ibid., 442- 43.
78. Ibid., 44'.l - 47, 414.
PROPERTY, NAT\JRAL RIGHT, ANO TI1E STATE OF NATURE 157
of course that property could also be owned by specific communities.
There was community of property for a time after Eve was created; the
primitive Christian community at Jerusalem owned property in common;
and the church over which john presided included innumerable property-
owning corporations. But individual ownership was the norm, the initial
condition from which later forms of property were derived. Adam had
property before he shared ownership with Eve. The apostles and disciples
had private possessions before they contributed their individual proper-
ties to the common pool. Things had to be possessed individually before
common property could be created.
The differences between Bonagratia and John XXII are evident. Bona-
gratia believed that ius dominii, right of ownership, was derived from
human law and that it could be renounced. The pope maintained that the
right to property was introduced by divine law and was inalienable (since
all use of consumables involved ownership). But there are also significant
resemblances between the positions of the two adversaries. Both of them
set out from a primeval condition of things, an original state of nature initi-
ated by God's first dealings with Adam. And, of course, each imagined a
state o f nature consistent with his own position in the fourteenth-century
dispute. Both writers emphasized positive divine law and positive human
law; neither based his argument on a natural law discerned by human
reason and conscience. In this regard their arguments represent an im-
poverishment of the tradition of discourse about natural law and natural
rights that had been growing up among jurists and theologians for morE.'
than a century past. A major achievement of Ockham was to restore the
idea of a rational natural law to the center of the argument about the origin
of property.
0CKHAM ON PROPERTY
A noted writer on religious experience in the modem world, Simone
Weil, maintained that "private property is a vital need of the soul.,,.,., Pope
john XXII would probably have agreed; he certainly held that property
was a vital need of the body. Ockham thought otherwise. His wholt•
purpose in attacking John XXU was to uphold the thesis that Christ and
the apostles had renounced all property "individually and in common,"
retaining for themselves only "simple use of fact," and that, accordingly,
the Franciscans were following a truly e vangelical way of life by adopting
the same rules of conduct.
' 7<1. S. Mil<.-s, <.'ti., Sittrrmr Wril 1\11 1\1111111/oxv (l.ontlon, 191!6), IJ5. But Wc•il ,\Ilk>wruh'. In
.inolh<'r conIt»<I, .. Rixht" h1w<' 1111 clh<'< I • • ttlll<'• llnn wilh lov<.' .. . th<.' nnlion ur rl1thlii I•
.1lic•n h• 1111' <1>ri,.li1111 in~plr11lh111 I ''"' •"""'•I l11111K""' SI l'ranc-h1 of A""l"I l"llo.ln~ 111>11111
rl1thl" .. (I{\)
158 THE IDEA OF NATURAL R IGHTS
From the beginning of the controversy, the theological issue had been
complicated by John XXII's juristic argument that there could be no use of
consumables without ownership. This implied that the right to property
had always existed and could never be renounced. (1f to eat things is to
uwn them, lllt!ll must alwdy~ ~ uw11el~.) Uu1lJ~l..ilia argucJ thal lite hdu-
ciscans had returned to an original state of innocence when use without
ownership existed. John responded with his argument about Adam's sole
dominion. Both Bonagratia and John treated the life of Adam before the
Fall as exemplifying a paradigmatic pattern of conduct that humans of
their own age could emulate. The result of all this was that, when Ockham
took up the argument, he could defend the Franciscan teaching on evan-
gelical poverty only by undertaking a far-ranging discussion of property
in relation to divine law, human law, natural law, and natural rights. His
intention it seems, was to refute John XXII while avoiding some of the ec-
centricities that had crept into the Franciscan position since the work of
Bonagratia. To do this, he needed to disprove john's assertion that Adam
at first held individual property as sole owner of the world and that later,
after the creation of Eve, Adam and Eve owned property in common. A
Franciscan apologist was reluctant to concede that either individual prop-
erty or common ownership was of direct divine institution. Then Ockham
had to show how a right to acquire property could have arisen, how the
right could be renounced, and finally how the existing division of prop-
erty had come about in the course of human history. Earlier in the dispute
discussion of these questions had turned on a few crucial texts of the De-
cretum and Ockham also had to rely primarily on them. But these texts
had been exhaustively discussed by an earlier generation of canonists. So
Ockham did not produce an entirely new theory of property; rather he
adapted from the earlier tradition, or perhaps reinvented, the interpreta-
tions that best suited his own Franciscan argument.
In addressing John XXIJ's assertion that Adam was at first the indi-
vidual owner of the whole world, Ockham deployed two lines of ar-
gument. The simpler one maintained that the key words of God, "Have
dominion . .." were not spoken to Adam alone but to Adam and Eve
together; so whatever dominion was conveyed by them was held by
the two in common. (Later Ockham would argue that this dominion was
not a property right.) The word Dominamini was a plural form, Ockham
noted. Moreover, it was part of a blessing that began with the words "In-
crease and multiply." And Adam could not have multiplied the human
race all by himself without a wife to help; so the words of the blessing
must have been spoken to Eve as well.80 As for the tt>xt of Ecclcsiasticus on
which John relied, the fact that Eve was first mt•ntiorn•<i only t1ft('r a l'C'fer-
llO. Opus nonn.~intn tfir rnm re lN! lJ, 4H7
PROPERTY, NATURAL RIGHT, AND THE STATE OF NATURE 159
ence to the dominion of Adam did not prove that Eve was actually created
later. Often, Ockham noted, the order of scriptural narrative does not con-
form to the chronological order of events.81
Ockham's next argument was more subtle. Even if we grant that
Adam received dominion before the formation of Eve, he wrote, it would
not follow from this that he acquired such dominion for himself as a single
individual. His dominion was granted "for himself and the wife to be
formed from him and for all their progeny." 111 (This was the same reply
that Locke would make to Filmer's revived Adamite theory in a later age.)
As for John XXII's argument that there could be no common dominion
when there was no plurality of persons, Ockham quoted the canonistic
text (going back to Huguccio) that communis could mean communican~a
("common, that is to be shared"). Adam's dominion was common in thls
sense, because whatever was given to him was given to be shared with
Eve.83 Ockham also introduced here the legal doctrine that the rights of
a corporation could persist in a single member. If all the monks in a
monastery died save one, then de facto he would hold the property of the
community, and so too would the first monk in a newly founded monas-
tery. But in neither case did the individual monk have exclusive owner-
ship. Rather, he held on behalf of a monastic community; as soon as other
monks joined him they too would share by right in the property that
belonged to the corporate whole.84
Ockham was apparently fond of the argument about a solitary monk
functioning as a k ind of corporation sole, and he returned to it later in the
Opus nonaginta dierum (OND) and again in the Breviloquium.85 But the anal-
ogy he drew was not an exact one. A community of monks held property
in common; Ockham wanted to argue that Adam and Eve had no property
at all, either individual or common, in the state of innocence o r immedi-
ately after the first sin.
In discussing this issue Ockham presented his most decisive argu-
ments against John XXII's depiction of the state of innocence. John argued
that Dilectissimis equated the state of the apostles with the state of inno-
cence; but, according to the pope, the apostles held property in common
and so, correspondingly, Adam and Eve before the Fall also had all thi~gs
in common "as regards dominion of property." Ockham responded with
two lines of argument, an analysis of the different meanings of the word,
dominium and a denial that the apostles, or anyone else, had ever returned
81. OND, 490.
82. OND, 488, " ... illud d11mlnl11m nnn fuil llibi datum p rose sola, !It'd pm !It' t'I mulirrr
formand<1 dl' i~l al" pni 1m111lh11• pn•trrl" ron mtl1•m."
HJ. ONf>, 411'1, ~ . •. 1•1 l1IC'u " """"'""lull, ho1· ""' <'c>mmunicandum."
114. ONfl, 4147.
llr.. llNI>. 4HQ, f•hl , lltt"l'll1~/llll1Pfl, I I'\
 160 THE IDEA OF NATURAL RIGHTS
to a state of innocence. In a series of definitions at the beginning of the
OND Ockham had pointed out that dominium could mean (among other
things) a power of ruling or a power of owning.86 Now he insisted that the
dominion given to Adam and Eve was not a property right but "a rational
power of ruling and governing." When God said "Have dominion over
the fishes of the sea and the birds of the air," he was conferring a "perfect
power" to rule all living creatures. They were under Adam's sway; they
had no power to resist him or do violence to him.87 But, Ockham noted,
scripture never referred to property when discussing the dominion of our
first parents.a! The principal error of John XXll was to suppose that the do-
minion granted to them was the same as the ownership of worldly goods
that came to exist later. The pope was also wrong in supposing that Dilec-
tissimis referred to common ownership in the period before the Fall.89 In
fact, although Adam and Eve had a kind of common dominion (a power of
ruling) they had no common property:
Although it may be conceded in one sense that our first parents had do-
minion of temporal things in the state of innocence, it is not conceded
that they had property in temporal things because this word "dominion"
has meanings that "property" does not have.90
If God did not institute property in the form of common ownership,
still less, according to Ockham, did he confer individual possessions on
Adam and Eve, even after the Fall. John XXII argued t.h at God made an
individual grant to Adam when he said "In the sweat of your brow you
shall eat your bread." But it was highly improbable, Ockham argued, that
Adam would have wanted to own his bread separately from Eve, given
the bond of marriage and the love and concord that existed between
them.91 It was the same with the "tunics of skins" that God gave to Adam
86. ONO, 305-308.
87. ONO, 432, " ... dominium omnium temporalium datum primis parentibus fuit potes-
tas rationabiliter regendi et gubemandi temporalia absque eorum resistentia violentia . ..
talis perfecta potestas regendi et disponendi temporalia fuit dominium, quod datum fuit
primis parentibus."
88. OND, 436, " ... nee unquam de proprietate loquitur scriptura, cum loquitur de domi-
nio primorum parentum ante peccatum.* Oclcham here ilJustrated the meaning of domin-
ium as a power to rule from another scriptural text. When w e read in Proverbs 16.32, " Isle
dominatur animo suo,* it does not mean that a man owns his spirit but that he rules his
spirit. Ockham did not use the argument that an individual had a property right in his
own person, presumably because he wanted lo argue that the Franciscans had no pmpt>rty
right at all.
89. John XXll's interpretation of Dileclissimis was di5CUSSE'd in d<'lail ill OND, 436- 40,
492-94.
~- OND, 485. Tile same argument occurs at 4..16- 37, 4112, 4"4.
'11 . ONO, 656, "Stanlt' Mlim .1 mon• 1•l 1~11wor.ti.1 inlrr lpio.••. noon v i.l1•t11r 1t1101l 1trh1..-nml
aliqua r.ttiom• movt•rl ad Jlvh\,,111l11m h•111pornli11 inlt'f "" 'I"'""'•l11mh1l11m """ pmrri·
1•"1h•n>." s,.,. 111110 CIN/> hhil
PRO PERTY, NATURAL R IGHT, AND THE STATE OF NATURE 161
and Eve. Only the use of them was separate; most probably they would
not have wanted to own their tunics individually. And even if they did
own the garments that God gave them as private possessions, Ockham
persisted, they had earlier made for themselves girdles of fig leaves; so the
first institut1on of property would still have been by human initiative.92
Ockham's argument grows a little crotchety here, but the Franciscan was
determined to refute by all possible means the assertion of John XXII thal
private property was first instituted by God's own command and to deny
the kind of sanctification of property implied by this teaching.
According to Ockham's account, instead of endowing Adam and Eve
with property, God gave them a power of using certain things when he as-
signed to them herbs and fruit-bearing trees for their food.93 But this "licit
power of using"-that Ockham elsewhere referred to as an inalienable
natural right 94-was not a right of ownership.95 Ockham also held that
the power of using was different from the original dominion God con-
ferred on Adam and Eve through which they could rule other creatures.
This was proved by the example of the animals. They too were given a
power of using things as food but they were not granted any dominion.
Also, the power of using things always persisted among humans, even
though the original dominion was lost by sin.96
This last point can serve to introduce another major theme that Ock-
ham developed in his response to the pope's depiction of the original
age of innocence. Ockham not only criticized the details of John's ar-
gument; he also rejected the whole underlying supposition that the pri-
mordial state of affairs was normative for all time. Since Ockham believed
that he could demonstrate from scripture and from a correct interpretation
of Difeclissimis that no property existed in the state of innocence he might
have been content to accept this supposition as Bonagratia had accepted
it. But in fact Ockham chose to attack this part of the pope's argument too.
The Franciscan champion had set himself the task of responding, word
for word and blow by blow, to every argument put forward in Quia vir
reprobus; so he too had to write at length about Adam and Eve and the age
of innocence. But Ockham did not argue that the apostles or the Francis-
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·
pol~t.ls ut<'ndi quibusdam rebus detPrminalis.. .. "
94. OND. 562, " . .. iuri utt'ndi naturnli nulli rt'nuntiart' liC<'t." Simil<lr expn'"!li1i1m!O ill :t\4,
ssn. 561 , 564. sn.
45. C>NTJ, 4112-·9:\. <'k·khnm "~pl11i11r.,l l11•1t• lh.ll tlw only point of pur!!ulng the• 11rg11ntNll
.11><mt l\di'lm irnd 1-:vr wA.• to •lmw th"t ..,...,. nt 111<'1" 1'11111<1 t'l<ii<t without c•wm•ri•hip.
•lfl (IN/ I, 41:1. "' . 111,, J'" l•••lot•, 111,.11.11 '" '""' "I .1.,mtnl11m .. 1't'M1111lr Uln domlntn, 111111
.,.,.,,wit llllllll• f'""°"'''" nh•mll 11111"1111111•11h·~l 11'11111 ,, lult .,111~ 11nlmnllh11• 111111•110 non
lull •l 11h11n iluml11111111 ••
 162 THE IDEA OF NATURAi RIGHTS
cans had returned to the prelapsarian state of humankind. Both John XXII
and Bonagratia in their djfferent ways maintained this position. Ockham
differed from both of them. Understandably though, he did not mention
the view of his Franciscan confrere, but preferred to concentrate his attack
on the pope.
John XXII was arguing frivolously and using words equivocally,
Od<llam complained, when he argued from Dilectissimis that the apostles
had exercised the same kind of dominion that Adam did in a state of inno-
cence.97 Dilectissimis did not "equiparate" the state of the apostles with the
original state of innocence as John maintained; it only "compared" them.
The kind of dominion that God instituted in the beginning had nothing to
do with existing rights to property; it was a once and for all phenomenon,
never repeated in the history of humankind.911 The dominion of Adam was
different from any dominion subsequently established among humans.
The apostles did not recover this dominion or return to the state of primor-
dial innocence, for the natural defects of human nature were not repaired
in them, and they were not given any supernatural power to command
all living creatures.99 For Ockharn there had been no going back to the
primeval condition of humankind.
If either of the varieties of primitivism presented by Bonagratia and
John XXII had prevailed, argument about the right to property would have
been drawn into a sort of scriptural cul-de-sac. Everything would depend
upon which idiosyncratic interpretation of Genesis an author chose to
adopt. This kind of argument did indeed persist. Even in the seventeenth
century Filmer and Selden were still using variations of it. Ockham chose
to pursue a different and more promising course. Having proved to his
own satisfaction that private property did not originate in divine law,
Ockham still had to explain how it actually had come to exist. Here the
argument took a paradoxical tum. John XXII and Bonagratia were both
trained canonists, but it was Ockham, a philosopher and theologian, who
returned to the well-worn categories of juristic thought and to the kind of
historical explanation that we can find in the Decretum and its glosses in
order to account for the development of property. As we saw, in comment-
97. OND, 431, " . .. non solum eronee, sed etiam cavi!lose et sub vocum multiplicitate
procedit. . .. "; 434, " Dominium ergo quod fuit apostolorum ... non fuit tale dominium,
quale fuit dominium primorum parentum."
98. ONO, 436, "... Clemens comparat et non aequiparat ... Quia nunquam aliqui mor-
tales habuerunt tale dominium temporalium, quale habuerunt primi parentes in statu
innocentiae"; 493, "Dominium autem quod habuerunt primi parenles in slatu innocentiae.
est totaJiter alterius rationis ab isto do minio... ."
99. OND, 434, " . .. natura in eis quantum ad defectu.~ llillumh•K full m ltlimt• rt•parata .. .
(dominium) supematurale non fuit ill illl~ . . . ••rgo non h.-h1ll'mn! t"I,. <lomlnlum q uoit'
habuenmt pri ml parentt'l'."
PROPERTY, N ATURAL RIGHT, AND THE STATE OF NATURE 163
ing on Dilectissimis, John XXII argued that, since the first division of things
produced individual ownerships, what was divided must earlier have
been common property. Ockham responded by introducing the juristic
concept of res nullius. After their first sin, Adam and Eve still did not own
any property individually or in common; but, Ockham argued, they did
then have a power of appropriating things because ''what belongs to no
one is conceded to the occupier." This power of acquiring "what is taken
by land, sea or air" was not a form of common ownership because, if it had
been, the consent of the community would have been required for any act
of acquisition. 100
Ockham perhaps had in mind here the kind of problems about first ac-
quisition that would be discussed in detail by later natural rights theorists.
But his immediate purpose was to defend the view that neither common
ownership nor individual ownership was instituted by divine command.
One must always remember that the Franciscans claimed to have given up
all property "individually and in common." However tortuous Ockham's
arguments became this was always the position he was seeking to defend.
He emphasized therefore that a situation where the whole world was in
bonis nullius could not properly be described as a state of common owner-
ship. This was the same argument that Pufendorf would make centuries
later when he distinguished between "negative community" and "positive
community" in a state of nature. Ockham, of course, was pursuing a dif-
ferent agenda; but the sharp distinction that he introduced here between a
power to appropriate and an actual right of ownership was central to some
of the later rights theories.
Ockham went on to argue that, even if we do call the power of appro-
priating a kind of common dominion, using the term in a loose sense, still
this power did not exist in the state of innocence.101 This led on to a further
JOO. OND, 434-35, "Nam nulli possunt inter se dividere aliqua bona q uood dislin<·t,1
dominia, nisi prius habeant dominium commune in dividendis ... Ad hoc dicunt illli
impugnatores quod primi parentes post peccatum non habuerunt do minium commu1w
omnium temporalium proprie loquendo de dominio, sed habebant potestatem appropriancli
s ibi et etiam acquirendi commune dominium; quia quae in nullius bonis sunt, ocrup.1nti
conceduntur. Et ideo ilia potestas non fuit proprie dominium commune: sicut nee mo.lo
potestas appropriandi seu acquirendi ilia, quae caelo, terra marique capiuntur, no n rsl pm·
prie dominium commune, quia si esset proprie commune d ominium, nullus dd>t'n•! ~il>i
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.<. For olh..r
rdercnces tn goods in boni~ 11111/iu.< l't't' (>NP, :n'.l, 4'.lR.
i l IOI . ONV, 4'.l.'i, " El itlt•u "'' mnninn rnnn...t.1tur quod ista polN1!11s appmprinndi lull
."'
l ('ommnnt' dominium. tlinml l~!I h11p111(1"1l11w" 'I""'' I.lit' ilominium non fult'.•rl In !!lnlu in
n1)(·1•11li.w, ~i primi l"1rr11t.... 11n11111•1 1~•1M·111 . •tnltt lhi 11nr1 fui~M·I p<•h'!ll•,~ o1pprnprl.uidl ·· S.-.-
.11-.14:1~. 4'0
164 TuE IDEA OF NATURAL RIGHTS
question that John XXIT had already raised. Where then did this power of
acquiring property come from? According to the pope it came directly
from God. Ockham on the other hand emphasized human agency; his
answer was that the power of appropriating came from human nature
in its fallen condition and from human reason. Among sinful men a "dic-
tate of reason" indicated that it was expedient for persons to appropri-
ate things for themselves unless, Ockham added, anyone had volun-
tarily deprived himself of this power (as the Franciscans claimed to have
done).10'Z Later on, commenting on the Ordinary Gloss to Dilectissimis, Ock-
ham noted that the introduction of property was in accordance with the
natural equity that existed among fallen humanity.103
There is perhaps some equivocation in Ockham's language here.
Although the power to appropriate was a "dictate of reason" and in accord
with natural equity, Ockham did not call this power a natural right or a
product of natural law. Yet, in other parts of the OND, he defined a natural
right precisely as a power consonant with right reason and natural law as
equity in accord with right reason.104 The logic of the language suggests
that the acquisition of property was a natural right in accord with natural
law. But Ockham seems to have avoided this conclusion. With his eyes
fixed always on the problem of Franciscan poverty he wanted above all to
distinguish between a power of appropriation that could be relinquished
voluntarily and a natural right of using things that could never be re-
nounced:
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 in-
102. OND, 435, " Et si quaeratur unde ergo habuerunt primi parentes talem potestatem
appropriandi res temporales, quam non habuerunt ante peccatum, dicunt isti quod ha-
buerunt illam potestatem ex natura corrupta. Quia ex dictamine rationis naturalis con-
vincitur 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 intro-
duced 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 ac-
cording to reason, but it was not contrary to the natural equity that actually exisl<'d among
men prone to dissension and wrongdoing. The argument here lK't!ms to •mlicipate OckMm's
well-known discussion of three types of natural law in Di11/~11s, :l.2.:l.6. St"'t' bt'low, 177.
104. O NO, 574, 579. ~above•, 128.
105. ONO, .562.
PROP£RTY, NATIJRAL R IGHT, AND THE STATE OF NAnJRE 165
troducing a concept of "suppositious" natural law that came into play
after property had been introduced and of natural rights associated with
this law that could be renounced voluntarily, but that could also be as-
serted against the claims of an absolutist ruler.
At a later point in the OND, Ockham acknowledged that private prop-
erty was introduced through human laws ''by command or permission of
God." 106 And presumably the original power of acquisition that existed
before property was instituted must have come from God, at least as a per-
mission that had not been granted before. The idea of a permissive law
seems implicit in Ockham's argument; but he did not choose to explore
this theme. When Ockham returned to the point in the Breviloquium he was
willing to acknowledge a divine origin of the right to acquire property; but
in the OND it suited his purpose better to emphasize Gratian's straight-
forward view that property had its origin in human law or custom to-
gether with the text of Quo iure, that supported this opinion. As.a .Francis-
can apologist Ockham wanted to argue for a merely hum~ o?gm of th.e
right to property so that he could effectively defend the friar s renunci-
ation of the right.
Accordingly, in refuting John XXJI's interpretation of Quo iure, Ock-
ham persistently emphasized voluntary human agreements as the source
of particular property rights. Arguing from Quo iure's assertion that "We
have divine law in scripture," the pope had given various examples of pri-
vate ownership in biblical texts and concluded from them that property
was established by divine law. But Ockham responded with another text
from the Decrelum. "Natural law is contained in the law (of the Old Testa-
ment) and the gospel but not everything in the law and the gospel is
natural law." •07 It was the same with divine law, Ockham argued. Many
texts of scripture referring to ownership were not precepts of divine or
natural law but simply accounts of transactions among humans. Cain and
Abel, for instance, made the first division of property by mutual agree-
ment, not by divine command. Later on similar divisions were madt>
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 ac-
quired great possessions by their own labor and industry, and so did many
106. OND. 664, " Ergo n11//11s rn de ill11r11m dominio nisi de trolunt11tt Ori, potuit (lrdi1111rr:
Verum est quod omnia fiunt de voluntate Dei iubente vel permittente... . For the rnlhn <llf-
H
ferent treatment of this question in the Brroiloquium and for the concept of "suppo.'lili111111..
natural law, see below, 172-7.\, 178 - 79.
. 107. OND. 661, citing ni~UI I""'' c 1.
Ill!\. ONO, 661, •· . .. Al>rnh11m ,., l.olh pmpri01 01uctoritate. ut habt'lur <;c-n1•11l11 xiii.
re~lorn>!! intc>r ~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
J
NtH• <jtl•lt" .l lvl:do v11l1111t.. 1r l'I 111111111•1111111• hwn111111 lull ln<"tn.H
166 THE IDEA OF NATURAL RIGHTS
pagans mentioned in scripture.109 The texts quoted by John XXII proved
only that some grants of property had been made directly by God, some-
thing that everyone conceded; they did not prove that property was first
instituted by divine command. Moreover, since the preaching of the
gospel, no such divine grants had been made; in Ockham's day all prop-
erty existed by human law. 110 There remained the problem that, whereas
Quo iure attributed the origin of property to the laws of kings, John xxn
had given many examples of property existing before there were any kings
and had concluded that only the forms of legal action were instituted by
human law, not property itself. Ockham had no interest in defending a
specifically royal origin of private property. He wanted only to prove that
the origin was not divine. And indeed his many references to early pacts
among individuals suggest that, for him, the origin was conventional but
pre-political.
Ockham argued, therefore, that in Quo iure Augustine was refer-
ring only to the circumstances of his own day when laws were indeed
commonly made by kings. In earlier times, Ockham noted, there had been
many human laws that were not royal enactments. According to a text
of Isidore in the Decretum any people could make laws for itself, and
many had done so. 111 The Romans, for instance, held property by human
law before they had kings. Again, many lesser rulers apart from kings-
dukes, counts, barons, and other secular princes-<ould establish individ-
ual properties and had done so at various times.
Summing up his argument on the origin of property, Ockham distin-
guished three epochs of human history. There was a time before sin when
our first parents had no property but a power of using things; then there
was a middle time after sin but before the division of things when they
had a power of appropriation; and finally a time after division was made
when individual possessions came to exist.112 In Ockham's view property
emerged during this third epoch in a historical process that involved a
long series of voluntary arrangements among humans--compacts, cus-
toms, the laws that peoples made for themselves, and finally the laws of
kings and other rulers. But the foundation that made the whole process
legitimate was natural equity and the "dictate of reason" indicating that
private property was a fitting arrangement for fallen humanity. By arguing
109. OND, 659, "Iacob etiam per laborem suam et industriam multa acquisivit . . . c>t d<'
paganis multis posset per scripturam copiose probari."
110. OND, 657.
111. OND, 661, citing Dist. 1 c~8.
112. OND, 439, NEt ita fuit triplex te mpus : scilicet ante pt>cc.1t11m ... post pt>cc.1tum 1•t
ante d ivisionem rerum; et in ilia tempore habul'runt pot~lntt•m <livlth•ndi ••I apprnpri;mc\i
sibi res . .. Tertium te mpus foil poiit tlivi~ionem n•rum. ••I tum· llH...lwrunt 1lu1nlnin proprl.1
q11alii1 nunc :<uni mun~lannn.un . "
PROPERTY, NATURAL RIGHT, AND TiiE STATE Of NATURE 167
in this way Ockham drew the whole discussion about the origin of prop-
erty away from the idea of a state of nature understood as a primeval
condition of things in order to emphasize instead the permanent nature of
human beings as creatures endowed with reason and free will
Ockham's arguments may remind us of the earlier canonistic com-
mentaries on Quo iure and Dilectissimis that also emphasized reason and
rational choice. Ockham did not reproduce consistently the view of any
particular Decretist; but much of his argument was in accord with main-
stream canonistic thought. For the Decretists as for Ockham, the use of all
things was at first shared in common. But, as Rufinus pointed out, this
state of affairs was not normative for the future; according to various com-
mentators on Dilectissimis, it had passed away after Adam's primal sin.
After the Fall there was a time when the whole world was res nullius, open
to occupation. In these circumstances the "judgment of reason" (Huguc-
cio) or the "dictate of reason" (Ockham) indicated that individual property
could be acquired. The actual division of things came about through an ac-
cumulation of agreements and customs and laws.
One can consider the arguments of the OND as a step in the evolution
of Ockham's own political thought or, in a broader context, as a contri-
bution to the overall development of theories on property and natural
rights.•u When we read Ockham after studying earlier canonistic texts on
the origin of property there is sometimes a feeling of deja vu. If we turn
finally to the classical natural rights theories of the seventeenth century we
can experience a sense of "deja vu all over again." Filmer turned back to
the first chapters of Gratian's Decretum in criticizing Grotius's theory of
natural law.114 Grotius himself, in his early work De jure praedne, cited the
decretals of Nicholas Ill and John XXII on Franciscan poverty; then he
observed that the common "use of fact" that existed at the beginning of
the human race could not properly be called dominium.115 This was a crucial
distinction for Ockham too. Grotius went on to argue that, as regards
consumables, "a certain kind of ownership is inseparable from use," and
made this the starting point of his first theory of property. Selden and thm
Filmer reintroduced the theory of Adam's sole dominion. Pufendorf and
113. Janet Coleman has emphasized, quite properly, the continuing influence of ( l{-k
ham's older contemporary, John of Paris, in this area. But John offered only a brief rnmnwnl
on the o rigin of the right to property; Ockham discussed the issue in inlrkall" d1"t11ll. S.-.•
J. Cole m an, "Dominium in Thirteenth and Fo urteenth-Century Politica l Th(111p;ht 111111 lb
Sc-vt>ntrenth-Century H <'ir.i: John of l'.uis and Locke," Politico/ Studi~ 33 (19HS): 7J IClll.
114. ). I~ Sorrwrvillt•, rel , 1'11triairlu1111111 Ollirr Writings (Cambridge, 1991), 2l'N.
11 ~. R.V.I >. M.1p;o ffl11, lnm• , "/11r frrf'1l11m n{ ll1r St'ns (Nrw York, 1q16), 22-24 <:roliu~ r'
plairwJ that formrrly .i..,,,111/um 111"11111 " •• t;i1 ·11l111~ tum iniust.1 utC'ndi rt' t'tm11nu11I, 1111r111
u~11111 Sdml.1Nlid~ vl1n1111 r•I '"'ti""" Im 1.-· lwllh .i r1'11•n•11n• lo Nkholn~ Ill'•/. rnl), hut In
h i" uw111"1y, h1• ,·,.11U1111rol, lhP w1111l 11•l1•111'<I 111 pt lVAlr propnty
 168 THE IDEA OF NATURAL RIGHTS PROPEIITY, NAlllRAL RIGHT, AND THE STATE OF NATIJRE 169

Locke undertook to refute it, and in doing so deployed some of the same In Ockham's later writings his interest shifted from the technical
arguments that Ockham had used earlier. Pufendorf expressed a hearty problems of Franciscan poverty to the broader political issues involved in
contempt for aU medieval thought; yet he constructed a theory of property the struggle between John XXll and Lewis of Bavaria; but some ways of
remarkably Jike that of the fourteenth-century Franciscan. Pufendorf could arguing that first appeared in the OND persisted in the later works. In
almost have been quoting Ockharn when he wrote, "the right of Adam to particular, the idea of natural rights, deployed in the OND only to defend
things was different from that dominion which is now established among a natural right of using the things necessary to sustain life, proved capable
men," or, "brute creatures use and consume things ... although no domin- of significant extension when it was applied to wider problems of ecclesi-
ion is recognized among them," or, "the fact that right reason suggested ology and political thought.
the introduction of separate dominions does not prevent them from going
back to a human pact," or, "God himself conferred . . . only .. . the power of
taking and possessing ... For the power to acquire some right and the
right itself . .. are different things." 116
I do not suppose that any of these seventeenth-century authors had
plowed his way through the Opus nonaginta dierum (though Suarez, who
was a common source for early modem writers on political theory, per-
haps had). There had been a long process of transmission through the
theological and juristic writings of the late medieval period and especially
through the Spanish scholastics of the sixteenth century. The important
point in any case is not the occasional verbal similarities but the continued
preoccupation with the same set of problems. AU the great natural rights
theorists assumed that God had at first granted the whole world to the
human race in common. They did not seek a return to this primordial
situation. (Proudhon indeed criticized Grotius for not doing so. 117 ) Their
problem rather was to explain and justify the fact of individuation. The
persistent engagement of seventeenth-century writers with this issue has
sometimes been seen as a major shift away from medieval attitudes
toward modem ones. In a classic old article on the development of prop-
erty Richard McKeon wrote that discussion in the Middle Ages "turned
exclusively about the problem of use"; then he contrasted this approach
with that of Grotius and his successors for whom the dominant concern
became "the problem of acquisition." McKeon found in this transition "the
most striking mark of the modem period of the discussion." 118 But his
argument is only partly true. Medieval writers were certainly concerned
about the right use of property. But the problem of first acquisition had
already surfaced in the twelfth century among canonists faced by the
tangled texts of Gratian's Decretum, and it became an issue of central im-
portance in the fourteenth-century Franciscan dispute.

116. S. Pufendorf, ~ju~ nat11rae ti genti11m lilTri octo, trans., C. H. Oldfather and W. A.
Oldfather (Oxford, 1934), 4.4.3, 535; 4 .4.4, 536; 4.4.4, 537; 4.4 .10, 548.
117. D. R. Kelley and B. G. Smith, eds., What ls Property? (Cambridge, 1994), 45.
118. R. McKeon, 'The Development of the Concept of Propt>rty in Political Philosophy,~
Ethics 48 (1938); '1.9'1- 366 at 344.

§EVEN
OCKHAM: RIGHTS AND SOME PROBLEMS
OF POLITICAL THOUGHT
W hen Ockham wrote the Opus nonaginta dierum (OND), he was
wholly preoccupied with the problems of Fr~nciscan pover~y: In
his later works he turned to broader issues of ecdes1ology a~d political
theory. For instance, Ockham wrote extensively, almost obsess1v~ly, about
the problem of papal heresy; and he was also much concerned wit~ d~fin­
ing the right relationship between spiritual and temporal power. His views
on these questions were not radically novel. Al~eady before 1200.~re­
tists like Huguccio had written in intricate detail abou~ the d~os1tion of
a heretical or criminal pope and had presented a dualist doctnne of em-
pire and papacy that was substantially similar to Ockham's. Then, _aro~d
1300 similar ideas had been expressed in the work of John of Pans-hke
Ockham a theologian writing on what we should call political theory.
These aspects of Ockham's thought are well known, _and I .have ~ade
no attempt to consider them once again in the following discussion. I
want only to review some key passages in which t~e conc~pt ~fa natural
ri ht, first presented in the OND, was taken up a~am, applied m new con-
te~ts, and assigned a role of central importance i~ a complex structure of
political thought. Here again it will be helpful, 1~ order to unde_rstand
Ockham's distinctive contribution, to compare his arguments with the
canonistic sources on which he often relied. As Stephen McCrade note~,
ham's conn•ption of ri~hts, Wt.> m •t•d to h. L'ar. m
to und erstand fully Ock · .. ..
mind "the important lc•gal Jinwnsion" of his pnht1l·i\I wntm~s._ In thc·st>
lat<'r work.~ thl' prindpnl nmh•xls in whkh <kkh111n 1l1•v1•l11p1•1l Im; 11ahm1l
J
1711
- - - -- - ·-· ---- - ·--------
Ocl<HAM: RIGHTS AND SOME PROBLEMS OF POUTICAL THOUGHT 171
rights theory concerned the origins of jurisdiction and the limits of ruling
authority. The discussion of both issues led Ockham to further reflections
on property rights in relation to human government.
ORIGINS OF JURISDICTION
Ever since Augustine, the existence of private property and of coer-
cive government had been seen as interrelated aspects of the human con-
dition; both represented departures from an original idyllic state of affairs
and both were occasioned by original sin. In medieval arguments about
the right to property, this way of thinking was often exemplified in dis-
cussions on the origin of dominion (dominium). Medieval authors com-
monly assumed that dominion was a right. They wrote freely of a ius do-
minii (though this was an unclassical usage). Moreover they used the word
dominium to mean both jurisdiction and ownership-a right to rule and a
right to own. So discussions on the origin of dominium typically t.r eated
both rights as powers that sprang from a common source, either directly
from God or from the pope, or from natural law, or from human law.
We find the usual juxtaposition of arguments about the right to in-
stitute a government and the right to acquire property also in Ockham.
De Lagarde indeed suggested that Ockham explained the origin of gov-
ernment by "purely and simply" transposing his earlier theory of property
to this new subject matter.• But this seems an oversimplification. Ock-
ham had different ends in view when he discussed the two themes. When
Ockham developed his first theory of property in the OND he was inter-
ested only in defending the doctrine of Franciscan poverty; this caused
him to reject the idea that property was instituted directly by God. When
he wrote on the origin of government he was concerned primarily to argue
that the emperor did not receive his power from the pope, but rather "from
God through the people." It suited this argument to assert that the power
of the people to institute a ruler was conferred by a direct divine grant. In
drawing parallels between the right to acquire property and the right to in-
stitute government Ockham therefore had to adapt, perhaps compromi~.
his first theory of property to make it fit the new argument. Ockham'11
handling of this theme shows how his political thinking was sometimes
shaped more by merely tactical considerations than by any underlying
metaphysical principles. It is also interesting because, in pursuing his nr·
gument, Ockham was led to reflect again on the role of human reason in
discerning God's purposes for humankind.
1. 5<>e Grorges de l.agardt', 1.n 1111/"""",.,.,,,. I" r.</Jril lalquea11 dklin du mc1yrt1"·fl"· 5 vol..., 2nd
ed. (Paris, 1956- 70), 5:2141. w. SIUmt'r ...w tlw lll<"<>ry or pm~rty In !ht• flm•illllJlliltm ""II ..i.u1
fi<-.1 linn or what W"!\ aln•" ''Y lmplh 111111111• I INI I ~;.... hi" l ' ri-mltm1 ""'' ,.,,,,.,.,.., (SIKnlllrlnK""·
19117). 2211 2'1.
172 THE IDEA OF NATURAL RIGHTS
Odcham's engagement with these issues is especially clear in the Brev-
iloquium.2 He was concerned there to re~ute _the argument of_h~gh ~apalist
theologians like Giles of Rome, who mamtamed that all dom1mum, includ-
ing licit jurisdiction and right of ownership, _w as derived from the po~
and that, accordingly, it could not be held outside the church. As part of his
response, Ockham asserted that "true ownership and true temporal juris-
diction" could exist even among infidels.3 To deny that infidels possessed
rights led to all sorts of anomalies, he pointed out. A Christian would not
be able to inherit any goods or rights that came ultimately from an infidel
ancestor, for the ancestor had no rights to begin with. An infidel who
became a Christian would have no rights for he had none beforehand. Un-
baptized children of Christian parents could have no rights. Infidels would
have no rights over their own children. All this was absurd, Ockham
insisted.• Then, to complete his argument, he went on to explain that the
right to acquire property and the right to institute government were both
conferred on the whole human race (including infidels) in God's original
grant to Adam.
In the OND, Ockham had argued that the power to acquire property
came from "nature," that is corrupt human nature, and from a "dictate of
reason." Now he asserted that this power was instituted by divine law
"through a special grant from God." He supported this assertion by re-
peating (though not deliberately one supposes) an argument that John
XXU had used against the Franciscans, namely that human property must
have been derived originally from God, since all things belonged to him
2. I have used the edition of the Breviloquium in R. Scholz., Wilhelm von Ockham als po/iii·
scher DtnW und stin Breuiloquium de principalu lyratmico (Stuttgart, 1944). 'There is an excellent
translation by John Kilcullen, A Short Discourst on Tyrannical Govnnment (Cambridge, 1992).
3. Breviloqui11m, 2.4, 118, " . .. apud infideles est verum dominium temporalium rerum et
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:<1'1111 Sl111li~ 4h (111116):
161-203.
4. lliid.. J " · 122 24
..
0cKHAM: RIG HTS AND 5oME PROBLEMS OF POLITICAL THOUGHT 173
"both by right of creation and by right of conservation."5 As to when God
made this special grant, Ockham found it mentioned, "at least by implica-
tion," in the text of Ecclesiasticus where God gave power to Adam. ("And
he gave him power over the things which are on earth" {Eccl. 17.3).) In the
OND Ockham had vigorously denied that God's original grant to Adam
conferred any property individually or in common, or any power to ap-
propriate. But now he called on Aristotelian terminology to support a
different interpretation. After quoting the text of Ecclesiasticus he added at
once, "That is, he gave him the power . . . that right reason declares to be
necessary, expedient, fit, or useful, not only for living, but for living well.""
And right reason showed that, after sin, the power to appropriate things
was something necessary and useful to the human race for living well.7
Ockham added, turning now to the main theme of the Breviloquium, that
for a similar reason God had conferred on mankind directly "without
any human ministry or cooperation," the power to establish rulers with
temporal jurisdiction.8 The phrase, "without any human ministry," was
presumably introduced to exclude the idea that temporal jurisdiction was
derived from the pope.
In the next stage of this argument Ockham asserted {without any
scriptural authority) that the twofold power to appropriate things and to
institute rulers was conferred by God on the whole human race in the form
of a precept, not just as something permitted. To safeguard the Francis-
cans' claim that they could renounce the power of appropriating he added
that the command was valid " for all time but not at all times." It obliged
strictly only in case of necessity. So the two-fold power could be renounced
except in a situation of necessity.9 But in the OND Ockham had persistently
5. Ibid., 3.7, 126, " (stud autem dominium commune Ioli generi humano cum potestate
tali appropriandi temporalia foil introductum ex iure divino, quia eit speciali rollatione l>t•i,
cuius erant et sunt omnia tam iure creationis, quam iure conservationis. .. ."
6. Ibid ..• 3.7, 127, "De potestate vero appropriandi res temporales habetur saltem im-
plicite &:di. 17, ubi sic legitur. .. . Et dtdil ti potestatmr «1r11m que s11nt s11,- luram, id est dedit
ei potestatem pro se et posteris suis disponendi de terrenis, que ratio recta dictaverit t>sllt"
necessaria, expedientia, decentia vel utilia non solum ad vivendum, sect etiam ad lx-1w
vivendum."
7. Ibid., 3.7, 127, " Potestas autem appropriandi res temporales ... est inter n«eSs11riil e t
utilia humano generi ad bene vivere computanda post pecratum .... ldeo enim Aristotelt'l'.
ut habetur 2. Politirorum, reprobavit politiam sive ordinationem Platonis ponmtis civit11h•m
esse melius o rd inatam, in qua omnia essent communia, quam illam in qua es.9t"nt prnprl11."
8. Ibid., 3.7, 128. "Potestas ergo appropriandi res temporales pel"S(lne et iwrsoni~ aut col·
legio data est a Oro humano g<'n<'ri; et propter rationem consimilt>m data <'lit a Dro .1h:o.1m·
ministeri1> et cooprratiun•• hum.m11 poh•sta!I instituendi rectores habenl<'!' iurl~lklloflt"m
l<'mporalem, quia iuri~llt11u h•m1"1r,1liM •~t tie num('ro illorum, qU<' ~unt nt"<"t'M.-irla <'t utlllA
ad h<>nl' 1'! polilit"t• vlvrrr "
II lhi.1 ., 1 A. 12K, " l>upt... 1•uh••l•• r11·1lto 111. ,..·llin•t nprrurrhmcli n •11 trmp••r11lr111•t 111
stihll'rnli rt'\"h•n·11 h11l•1lt11111111•111 h11l1;•111t·•. ''"'" r•I 11 t>... 1 lmml'lllAlr nun t1mt11m ll1h•llh11•.
174 TKE IDEA OF N ATIJRAL RIGHTS
asserted, without any such qualification, that the right to appropriate
could be renounced altogether, and in that work he maintained that, even
in a case of extreme necessity, one could use things without appropriating
them, without acquiring any property right.10 That was indeed how the
Franciscans claimed to live.
At this point Ockham seems to have lost his original focus on the issue
of evangelical poverty. He hedged and fudged arguments important to the
Franciscan case that had been clearly enunciated in the OND. But it was
only by doing this that he was able to transpose ideas developed in con-
sidering the origin of property to explain the source of imperial power. The
parallelism of the arguments about go~e~ent and pro~rty t~en ~ed on
to another interesting point. In the Brev1loqu1um Ockham still maintained a
distinction between the right to appropriate (a direct grant from God), and
the actual ownership of property (normally established by human law).
Then, continuing the same line of argument, he went on to distinguish
similarly between the power to establish jurisdiction and jurisdiction
itself.II It was a significant step. Ockham was making here the distinction
between "constituent power" (the right to establish a ruler), and the actual
right to rule that would persist as an important theme of early modern
political discourse.12 • • • man's land," where autonomous human will prevailed. 13 McGrade, on the
Ockharn's style of argument in these passages 1s as interesting as
his particular conclusions. We saw that, in interpreting the text of Ecdesi-
asticus on the power that God gave to Adam, Ockham appealed to right
reason. If humans were to "live and live well" they needed both a power to
acquire property and a power to institute governments. Right reason
therefore showed that these rights were included, "at least by implication"
in God's initial grant to Adam. Ockham's argument here was not that God
had revealed his will in a clear divine precept (as in the Ten Command-
ments for instance) and that reason required us to obey God's revealed
sed etiam infidelibus sic, quod cadit s ub precepto et inter pure mo ralia computatur. propter
quod omnes obligat tam fideles, quam etiam infideles. . . . Qui.a eni~ ista perti~ent a~ pre-
ceptum affirmativum, quod obligat semper, non pro semper, 1~eo mfide~ a~ ista ~icut et
fideles non pro omni tempore obligantur, sed solummodo in art1culo n~1tatis. Et rune.est,
quod predicte duplid potestati renuntiare possunt tam fideles, quam m fideles extra arhcu-
lum necessitatis et utilitatis, que necessitati debeat cmnparari.#
10. OND, OP 1: 322, #Nam quilibet in extrema necessitate ronstitutus habet ius utendi re
usu con,.11mpbbili . . . et tamen dominium talis rei propter hoc non acquirit . . . slante neces-
sitot~. iste habuit ius utendi veste absque dominia et proprietate."
11. BmriIOtJuium, 3.9, 129, "Cum appareat ex predictis, quod aliqua distinctio est inte r do-
minium proprium et potestatem appropriandi res temporales, el similiter inter potestatem
instituendi iurisdictionem et iurisdictionem- ..."
12. Ori this theme in George l.a w!IOn ;md John L.oclct> - I. l'rimklln, /olin /,1-.ckl" and thr
Theory of Sawreignly (Cambridgr, llflR). f'Or mt'dl.-v11I burkKnmntl iwt• my l<rlf!(i1111. IJ111•. mrtf
11u- Growth ofCorr~tilutmn11I 11K•11xl11 (( -., mbri1lg,·. l'IR2).
0cKHAM : RIGHTS AND SoME PROBLEMS Of P OLITICAL THOUGHT 175
command; it was rather that reason showed us what God must have in-
tended all along. There was no thought here of an inscrutable deity who
might arbitrarily wiJJ anything. Ockham was confident that, in this uni-
verse that God had actually chosen to create, right reason reflecting on
human needs, could discern God's plan for the human race.
VARIETIES OF NATURAL LAW A ND NATURAL RIG HTS
Ockham's most detailed analysis of natural law and natural rights
came in a passage of the Dialog11s that again was concerned with the ac-
quisition of property and, more particularly, with the establishment of
temporal jurisdiction. Ockham had often insisted that the natural right
to acquire property could be renounced; in the Dialogus he also asked
whether a people couJd renounce the natural right to institute a ruler.
His way of addressing the issue was to present a complex discussion
of three kinds of ius naturale, including a sort o f conditional natural law or
natural right. The importance of the text has been widely recognized, and
it has often been discussed by modem scholars. De Lagarde, for instance,
associated the idea of a conditional natural law with a sort of moral "no
other hand, found here an insistence that "actions be rational rather than
arbitrary or authoritarian."•• The text has other interesting aspects. It illus-
trates again Ockham's relation to the juristic sources that were often in the
background of his arguments; we also find again a tacit shift from an argu-
ment about natural law to one about natural rights; and, finally, the course
o f Ockham's argument led him to discuss in some detail the idea of an
alienable natural right, one that could be renounced at the will of the right-
holder.
In the relevant chapters of the Dialogus Ockham approached the theme
of natural law and natural rights in a circuitous way. His underlying pur-
pose was to prove that an emperor might have the right to appoint a pope.·,
and he found two texts of the Decretum asserting that Pope Adrian I had
granted this right to Charlemagne and Pope Leo Vlll to Emperor Otto I."
To show how such a transaction could have come about Ockham wa nted
to argue that the Roman people, who had the original right to elect a popt•,
13. La noissanct, 6 vol.s., 1st ed. (Paris, 1934-46). 6:122, 1~6.
14. Poliliral Tirought, 110.
15. Dia/~11s C'd. M . Gnldasl in M onarrhia S . Romani imptrii, 3 vols. (Frankforl. lti14),
2:3.2 3.3, 9 17. Ori th" ~rants of Atl rian I and Leo Vlll that Ockham citt'd, S<'t' Disl. t..1 c.22 ""''
r .2.1. Ockha m ~houltl hAvr nolrtl. if lw w ;iintf'<l lo aSS('rl a dortrin1• strictly roniciiitrnl with
thilt o f the Bm•iloq11111m, thAI ,, ... I"~'"'" wo•n• ho und to l'Xt•rci~ ltwir right o f r1...·11011 In ...,~.·
of n<'('C'!l~ily. 11111 ht• dlil n11t t~lw thl• p11h1l l11 tlu· tt-•t of ttw l>rarr~11~ wht•n• lw W4• 1'1H1<'1•m...1
only wilh the• pt-.•plr'• ' "'"""' "hllllv 111 " '"""'" ,. 1l1e·lr rlKhl
176 THE IDEA OF NATURAL RJGHTS
could renounce their right in favor of the pope himself, and that the pope
in tum could confer the right on an emperor. But at this point the Student
in the Dialogus raised an objection. It seemed that the Roman people had
no right to elect the pope either by divine law or human law. The Master
replied that they did have such a right by divine law if divine law were ex-
tended to include alJ natural law.16
At this point in the discussion Ockham veered off into his minitreatise
on the different varieties of natural law and associated natural rights.
Much of the material presented seems superfluous in relation to the point
he was intending to make. The core of the argument could have been pre-
sented in half a dozen lines. According to divine and natural law, any
people had the right to choose its own ruler. 17 The pope was the ruler of
the Roman people. Therefore they had the right to elect him. As for the re-
nunciation of this right it would have sufficed to quote the Ordinary Gloss
to the Decretals, "Licitum est cuilibet renunciare iuri suo." (" It is licit for
anyone to renounce his right." 18) But, instead of just making these simple
points, Ockham embarked on an extended, apparently redundant treat-
ment of natural law in general. H. S. Offler, the editor of Ockham's text,
suggested an explanation for this when he wrote that Ockham's discus-
sion was "conditioned, if not motivated" by the difficulties inherent in
Gratian's account of natural law.19 I think Ockham's argument was prob-
ably both conditioned and motivated by these difficulties. Almost all the
early commentators on the Decretum had noticed that the words ius natu-
rale were used in several different senses in the opening Distinctions of
Gratian' s work and had sought to bring order out of the apparent chaos by
categorizing, in different ways, the various meanings of the term. The
comment of Huguccio is typical: "Note that not all the examples of ius
naturale given here refer to the same meaning of ius naturale . . . but lest
the mind of some idiot be confused we shall carefully define each one."20
Ockham often had occasion to refer to the relevant passages of the Decre-
tum, and he too did not suffer idiots gladly. In the Difllogus he seems to
have taken up the challenge and provided his own solution to the prob-
16. Several texts in the opening chapters of the Drcrd11m seemed to identify divine law
with natural law. See Dist. 1, c.1, "Divinae (leges) natura ... constant." GI. ord. ad Dist. 1, c.7,
n • •• omne ius divinum dicitur na turale ius.tt Dist. 6, dictum post c.3, "Jn lege et in evangelio
naturaJe ius continetur...."
17. Ockham several times stated this principle. See e.g., 81'evifoquium 4.10, 161, " A Deo
enim et a natura ha.b ent om.nes mortales, qui nascuntur liberi ... quod sponte possunt sibi
rectorem preficere."
18. GI. ord ad X .1.95 and X.3.31.23.
19. H. S. Offler, "The Three Modes of Natural law in Odtham: A R,•vis ion of the Text,"
Fr11nciscan Studies 37 {1977): 207-218 at 21 l. l1le text o f Dialaxu.4:u _
1.t. in (:old•"" i.• dt>ft'<'tiv<'.
In the following notes I havt' ust"d the- com.>Clt'd veniion RiVMl l>y ( lfOt'r t l ltlo•r 111"" dis.'tL~M'1.t
here variom• modc-m approat·hfoft ft> I >in/11~11~ J.2.J .I\.
.1
~
20. Surr1mn 111/ />i.<I. I. c h . MS /\111110111 7. lol :l vh.
OCKHAM: RtCHTS AND SoME PROBLEMS OF PotmCAL THOUGHT 177
!ems posed by Gratian's texts in a sort of excursus from the main line of his
argument. Since the text has sometimes been seen as destructive of tradi-
tional ideas on natural law it will be useful, in analyzing it, to consider
whether Ockham did in fact depart radically from earlier canonistic treat-
ments of the relevant passages of the Decretum.21 Let us consider the three
kinds of natural law in tum.
Natural Law I. This was defined as a law " in conformity with a natural
reason that never fails." Two examples were given from the Decalogue:
"Thou shalt not commit adultery" and "Thou shalt not lie." This law was
immutable and invariable and not subject to dispensation.22 There seems
no problem with this definition. The texts of Gratian that Ockham cited
here declared that natural Jaw "began with the origin of the rational crea-
ture," that it was immutable, and that it was exemplified in the moral pre-
cepts of scripture. Guido de Baisio, whom I mentioned earlier as a possible
source for Ockham, quoted a similar text from Hugucdo in his Rosarium.23
Natural Law II. Ockham's formulation seems at first more original
here. The second kind of natural law is the law observed by those "who
use only natural equity without any human law or custom." This was the
law that existed "in the state of nature as first instituted." It would still be
observed "if men lived according to natural reason or divine law." But this
law was not immutable like Natural Law I. After the Fall, on account of
human iniquity, it had been changed by human laws and customs. For in-
stance, according to this second kind of natural law, all things were
common and all persons were free; but human law had introduced private
property and servitude.24 The idea of a mutable natural law has seemed
21 . In presenting his three modes of natural law Ockham cited the following passages of
the Dtcrdum: Dist. 1c7, Dist. 1 c.8, Dist. 5 dictum anle c.1, Dis/. 6 dictum post c.3, Dis/. 8 dictum
post c.1. Dist. 9 didum ante c.l , Dist. 28 c.16, Dist. 6.1 c.12, C.12 q.1 c.2, Cl2 q.1 c.68.
22. Offler, "Three Modes," 212-3. "Uno enim modo dicitur ius naturale illud, quod <'l!I
conforme rationi naturali, que in nullo casu fallit, sicut est 'n.o n mechaberis,' 'non mentieri~'
et huisusmodi ... ius naturale primo modo est immutabile et invariabile ac indispen~bill',
di. v, § Nunc autem et di vi, § Hiis itaqut rtsp0ndd11r."
23. Guido de Baisio, Rosari11m decrrtorum (Strasbourg. 1473) {np) ad Dis/. 1 antr c. l , "lu~
naturale est d ivinum ius scilicet quod continetur in lege mosaica et evangelica ... ad u qur
iure divino continentur naturalis racio etiam sine extrinsica excitatione ducit e t impcllit l't~
cundum Hu." On Guido's work as a possible source for Ockham see above, 102 n. 35.
24. Offler, "Three Modes, 212-3, "A liter d icitur ius naturale, quod servandum est ab illi'I,
tt
qui sola equitate nalurali absque omni consuetudine el constitutione humana utuntur ... NI
homines viverent secundum ra tionem naturalem... . lsto modo et non primo modo t'K lun•
naturali omnia sunt communin, quia in ~tatu nature institute omnia fuls~nt communin, c-1 "i
post la~um om~ lwmlnc'ft !'<'nrndum ratlonem vivert'nt, omni• deb<'renl""""' rommunl• "'
nic'hil pmprium; proprlt•tn11 o•nlm pruph•r ln1t1111t11trm f'i!I lrn1ucte, iril, q . I, c. Dilt'Cll"inii.•, l'l
ponitur in dt'<'n•llA di.I, '" lu• ""''""''· n un tll1·1t tiunci Nt'CunJum lu11 n11turnlt:' 1•111 n•mmrmi•
"m11ium t"'''- "5-''" fl""'"""",.,.., l1l..-1t11• hu" 1111l11r.11i orn11M1humlnc-11 111mt lil'<'rl rt t11mr11
..,,vi,••
'I"''•"'" 1111111111 •1110.1 1111• n11lur111lr 11110 mt1tl1111•'t"'l'h• vu
allq11l i11 n• tt"ntlum fhmt
1 _,hu lo n un <'•I l1111n11l,.hll•. 11111110 llo •I 1 n11h "' '""' "'"'"'' '"· 111 hon- 11111 n111tr,.1l11m ••
 178 THE IDEA OF NATURAL RIGHTS
disturbing to some critics, but here again Ockham was following a
common line of Decretist argument. His distinction between Natural
Law I and Natural Law II corresponds closely to the distinction introduced
by Rufinus, one of the first commentators on the Decretum, between pre-
cepts and prohibitions of natural law on the one hand and "demonstra-
tions" on the other. The precepts and prohibitions were immutable. But
the "demonstrations" were merely descriptive of a state of affairs that
was good and equitable but subject to change by human initiative, "espe-
cially as regards the liberty of all and common property," Rufinus wrote,
"for nowadays this slave is mine, that field is yours by civil law.":zs This ar-
gument of Rufinus was also included in the Rosarium of Guido de Baisio,
again in a formulation of Huguccio.26
Kolmel found a significant innovation in that Ockham associated
two different kinds of natural law with the condition of humanity before
and after the Fall. This doctrine, he wrote, was not to be found in Thomas
Aquinas or Duns Scotus.27 But it is to be found quite commonly in the
Decretist literature, and Ockham supported his argument with some rele-
vant texts of the Decretum. Also, the canonists' teaching concerning the two
types of natural law, before the Fall and after, had been assimilated into the
Franciscan Summa of Alexander of Hales in mid-thirteenth century, and,
once again, the relevant text was included in the Rosarium.~
Natural Law Ill. Ockham's third kind of natural law is the most in-
teresting one. His argument was suggested by a text of Isidore of Se-
ville, included in the Decretum at Dist. 1 c.7. Here Isidore mentioned "the
common possession of all things" and also "the return of a thing deposited
or of money loaned" as pertaining to natural law. But the repayment of a
loan presupposes the existence of private property. In explaining Natural
Law II, Ockham had just declared that property was instituted by human
law. Now he had to explain a text that derived both common possession
and private property from natural Jaw. To do this, Ockham introduced
his Natural Law III. "Jn a third way, natural law is said to be what can be
gathered by evident reason from the law of nations or some other law or
from some act, divine or human, unless the contrary is established by
those concerned, and this can be called natural law by supposition (ex
25. Rufinus, Summll dtcrrtorum, ed. H. Singer (Paderbom, 1902), ad Dist. 1 antt c.I, 6- 7.
On Rufinus see above, 62.
26. Rosarium ad Dist. 1 antt c.1, NEt hoc (ius naturale) consistit in tribus, scilicet in precep-
tis, prohibitionibus et demonstratiorjbus. Precipit quod prodest ut 'dilige deum tuum',
proh.i bet quod ledit ut 'non furaberis', demonstrat quod convenit et expedit ~cilic'et omnia
esserommunia etomnium esseunam libertatem . . . secundum Hu."
V. W. Kolmel, "Das Naturrecht bei Wilheim Ockham," Frnnli~k1111i,..·lw .<;1111l1m :l.<; ( 195..1):
39-85at 49.
28. Rm:arium ad Di.•t. 1 C'.7, rderrinK spt'<·ifin11ly to l\h•••uulrr of 11111""
Ocl<HAM: RIGHTS AND 5oME PROBLEMS OF POLITICAL THOUGHT 179
suppositione)."29 This conditional natural law was derived from rational
responses to contingent situations. Supposing that property has been in-
troduced by human law, then evident reason concludes that money lent
should be repaid. Supposing that someone has been violently attacked
(which is against natural law in the first two senses) then evident reason
shows that it is licit for a person to repel force with force. 30 A kind of
natural law, a law of reason, can therefore be discovered in the relevant
provisions of human law concerning repayment of debts and self-defense.
Some critics have seen in this concept of a conditional natural law, de-
pendent on previous human usages, a dangerous novelty, different from
any previous understanding of ius naturale. But in fact one of the early
commentators on the Decretum, Alanus, had proposed a very similar doc-
trine to explain some other words of Isidore included in the text at Dist. 1
c.7 that Ockham cited. Isidore wrote here that both common possession
and "the acquisition of what is taken by air, land, and sea" pertained to
natural law. To explain the apparent contradiction, Alanus wrote, in a
phrase similar to Ockham 's, that in one of its various meanings the term
ius naturale could mean "whatever is naturally equitable in the law of na-
tions or civil law or canon law."31 Moreover, he introduced here a concept
of "relative" natural law (ius respectiuum) that was essentially the same as
l
t
Ockham's ius naturale ex suppositione.» "Simple (natural law) shows some-
29. Offler, "Three Modes," 213, #Tertio modo dicitur ius naturale illud, quod ex iul"l'
gentium vel alio aut ex aliquo facto divino vel humano evidenti ratione rolligitur, nisi dc
j
ronsensu illorum, quorum interest, contrarium statuatur. Quod poterit vocari ius naturale
ex suppositione. ... "
30. Ibid., "Quia, supposito quod res et pecunie sint appropriate iure gentium vel aliquo
iure humano, evidenti ratione colligitur quod res deposita et pecunia commodata debl'nt
f
§, restitui, nisi ex causa per ilium vel illos, cuius vel quorum interest, contrarium ordinl'tm.
Similiter, supposito quod aliquis violentiam de facto iniuriose inferat alteri-<1uod non est dl'
iure naturali, sed contra ius naturale-t>videnti ratione colligitur quod licet per vim violm·
tiam talem repellere.#
31. Alanus, Pr0tmium in Weigand, Die Naturrtehtslthrr (above, 137, n. 19), 228, " Vndr
quicquid est equum naturaliter uel in iure genii um uel ciuili uel canonico, sub iure naturali
cont\netur."
32. Ibid ., "Item sciendum (est) quod (et) est ius naturale simplex et respectiuum. SimplNt
quod sine precedenti positione iuris pos1tiui demonstrat aliquid equum esse q~ale. est i~tU<I .
'deum diligere', 'omnia esse communia'. Respectiuum est quod demonstrat ahqmd t'C)uum
habito respectu ad precedens ius positiuum, quale est hoc 'adquisitio corum que Cl'lo' t<I<".,
nisi enim apponatur prius aliquem hominem habere propr"ium, non erit istud equu~ '• ff·
quisitio' etc." In hi.~ comment on Dist. 1 c.1 (Weigand, 229 n . 48), Alanus u~ a l'h~htly
different terminoh>F;y. distin~uishing relative natural law horn Habs<llull'" natural l01w. " I k·
iure <'!'RO naturali ah!<olnto ·~t omnia ~o;e rommunia, de respectiuo iure natur11ll l'l't 11liq11rn1
agnrm e!l..'lt' alil'num." l l.·kh1m111!1<'\I tlw lilnguage of absolute and condlllom1\ natural l•w 111
Dinli•}/llS :l2. 1.IO. <;uhlot. H7H, " l'r•rc·••plum autem naturall' quoddam t'lll 11h11olul11m . .
Quo1hl.1m mah·m """ r•t ,.,,.. ,111111111 ••"''um 11li.1111• nmditlutw, m11c.llrk11tlonr, vrl 111,...-lflt'~
1;11111., • In hl11 /'nlf'ml11n1. Al<11111• ,.,.., , ..1..~l 1111otlll'f iN01tr lhnt w1111t.I I"• lmp111t<111t In lntrr
\

180 'THE I O£A OF NATURAL RIGHTS
thing to be equitable without any preceding enactment of positive Jaw .
relative (natural law) shows something to be equitable having regard to a
previous positive Jaw." Thus the "acquisition" mentioned by Isidore could
pertain to natural law only because it had previously been enacted that an
individual could hold property.
These passages of Alanus and Ockham are especially interesting as
early formulations of the concept of "adventitious'' rights that, much later,
would become prominent in the work of theorists like Pufendorf and
Burlamaqui Pufendorf discussed the rights and obligations existing in an
"adventitious state" that arose "by virtue of some human deed."33 Burla-
maqui held that the right to property was not derived from "primitive"
natural law; it was introduced adventitiously by human initiative; but,
once instituted, the right was protected by a "secondary" natural law
which "supposes some human act or establishment." 34 This is precisely
what Ockham meant when he wrote of a natural law from supposition,
and what Alanus had suggested with his distinction between "simple"
and "relative" natural law.
It is impossible to know whether Ockham had ever come upon the
text of Alanus. Conceivably, he did know it and reworked it for his own
purpose; more probably he reconstructed the same line of argument by
reflecting on the same passage of the Decretum. In either case we are deal-
ing with a way of understanding the idea of natural law that was implicit
in Gratian' s texts and that had been perceived to be implicit more than a
century before Ockham wrote. There is no need to appeal to "Ockhamist
epistemology" or to "a nominalist conception of law" in order to explain
this part of Ockham's argument.35
We still, however, have to consider the most distinctive feature of
Ockham's discussion, his "obscure and ambiguous" words, "unless the
contrary is established by those concemed."36 This does seem to introduce
a new kind of natural law, unstable, changeable according to the wiJI of
the people involved. But, the point is that Ockham's argument was shift-
ing here from natural law to natural rights. He wrote, for instance, that
debts had to be repaid unless the interested parties decided otherwise. But,
natural law theori~whether the perception of what is just itself imposed an obligation or
whether a positive command was also needed. Alan us favored the latter view. "Vnde si nil
aliud prohiberet, contra naturalem equitatem facere non esset peccatum. Prohiberet tamen
quod iniquum est ius positiuum quod nos ligat et precipit equum.M
33. Pufendorf, Dr iurt naturae, 1.1 .7, 8; 33.4.3, 381.
34. J. J. Burlamaqui, Tht Principles of N alural 1..aw, trans. T. Nugent (Cambridge, Mass.,
1807), 2.4.24. Cf. Grotius, Dr iurr bt/li, 1.1.10, "Thus ownership .. . was instituted by the will
of man; but, once instituted, the law of nature indicates that it is wrong for me to ta ke your
property against your will.N
35. These phra!leS a re from df' ~giude, Nni~sattf,. h ( 11J4t.): l';fl, 1f>7
36. ~Lagarde, N11a""""'" !I ( l'Hi.l): 114. "( ·,"' molic ... M>nt t>t>11nu• ••I itmhl1tt1~
'I"'
••. .. <"t>lle c•xplk allon p.M'ncfn . rnllrn1rll1• t>J......,.. le• heHI M'tl" Ir p lu• 1•\'ltl1•11I
l
0CKHAM: RIGHTS ANO SoME PROBLEMS OF POLITICAL THOUGHT 181
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 argu-
ment, 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 prop-
erty 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• <It• droit"
naturels H
39. Offler, 'Three Mo<l~." 11~. I !..re•< J.·khnm wt•nt thmuKh all thn't' kind!'I of n.1hm1l l;1w
and :;howo'tl how t'illii kinof w•• known "hy i n~llnd of natun·. th;it L'I of n11hm1I n •11... m ·· ( " in
!'1linc.1u llillllr(', h1>c- l'!'l n11h1r11I• 11U11nh•" )
", 11 7, 40 (a...... ''"''"' I •. 7, " lr rli11 "''"''' .... lhu (Ill• 11ottur.1lc•) in•lilll'lllN ""It""''"' rt11lu111·
J•f.l \V f'l1U •l 1"
 182 THE IDEA OF NATURAL RICKTS
him. As for alienation of the right, Ockham argued that when the people
conferred on a ruler the right of making laws they also conferred the right
to choose future rulers or to designate the electors. These are not strik-
ingly novel ideas. The idea that licit rulership was conferred by consent
of the community to be ruled was fairly commonplace at the beginning
of the fourteenth century. Ockham's Dominican contemporary, Hervaeus
J Natalis, an adversary of the Franciscans, also presented a well worked-out
theory of government based on election and consent. So too, of course,
did Marsilius of Padua. Again, all jurists knew the t~t of Roman law as-
serting that the people had created an emperor by conferring their own
authority on him, and Hostiensis had further suggested that the people's
right to elect was derived from "the common law . .. by which any college
elects a ruler for itself ... or from natural reason from which law derives."
As for renunciation, it was a common medieval practice, as Ockham
noted, for an electoral body to transfer the right of electing to one or a few
persons whose decision they were bound to accept. But the whole title, De
renuntiatione, in the Decretals dealt with rights derived from positive canon
law; there was no discussion of the alienation of natural rights. The new
feature in Ockham's work is t at e whole argument about the institu-
tion of a ruler and the alienation of the right to elect was set in the context
of a discussion on natural law and natural rights. We may also note that,
in the Dialogus, Ockham's argument for the right of any community to
choose a ruler was based on a natural law discerned by reason, rather
than on the direct divine precept emphasized in the Breviloquium. But, in
the course of the argument we have just outlined, Ockham also held that
all the principles of all three modes of natural law were implicit in divine
scripture even though they were not explicitly stated there.41 Again, it
seems, reason shows us what God intends when his will is not made
explicit.
ABSOLUTISM AND NATURAL RIGHTS
ln the later development of thought on natural rights, discussions
about alienation of rights became intricately linked with arguments about
the proper limits of ruling authority. The idea of natural rights could be
used to defend either absolutist or liberal theories of government; the out-
come of the ar ument turned on the theory of alienability that an author
adopted. The question at issue was w e rs of a community
could or actually did alienate all their rights in the act of constituting a gov-
41. OfAer, art. al., 216, N • in scripturis divinis sunt qut>Jnm n~ulc gt'fl('rall>s, ex
• •
quibus . . . colligi potest omnc im1 n.itumk- <'I primo ct !IC<"undo 1•1 h•rtlo """I" clktum, lin•t
in eis non inveniatur <'Xplicilt>."
()cKHAM: RIGHTS AND SOME PROBLEMS OF POU11CAL THoUCKT
183
emment. If they did so they would have instituted an absolutist re~me.
Liberal theorists therefore argued that individuals retained some nghts
even after a government had been constituted. In ~e later de~ates ~ufen­
dorf's argument leaned more to absolutism, Locke s more to liberalism.
In the centuries before Ockham, medieval jurists had argued endlessly,
without ever reaching a consensus, about whether the Roman people
alienated its rights in creating an emperor (the "translatio~ theory") or
merely conceded to the ruler the exercise of rights that remamed with the
people (the "concession theory"). From the twelfth century onward, me~
dieval jurists also debated the question whether the emperor's role as
dominus mundi (lord of the world) gave him absolute power as the actual
owner of his subjects' property.41 Ockham's insistence in the ONO that the
actual division of property among individuals was first made by huma~
law-often by the laws of emperors and kings-could have ~avored this
conclusion. But his arguments that the original right to acquire property
pertained to natural and divine law, and _that priva~ p~perty was pro-
tected by another kind of natural law once it had been instituted by human
consent, left the way open for a defense of property rights in civil society.
This was the position that Ockham adopted. . .
Ockham has sometimes been called an absolutist because he did not
argue for any regular participation of the people in govem~ent or for per-
manently established representative institutions to restrain th~ power of
emperors or kings. But, as regards the persistence of _natura_l nghts after
the institution of government, his thought was clearly m the _h~ral or con-
stitutionalist tradition. For him the power of rulers was bmtted by the
rights of their subjects. Ockham did not hold that the emperor was a mere
agent whom the people could remove at will (though he ~uld be d~posed.
for heresy or serious crime).43 Once elected the rule~ had nghts of his own,
but the people had rights too, includin~ propertr nghts.. .
Ockham was especially interested m defending the nghts of the C::hn~-
tian faithful against the absolutist claims of ~e pap~cy, bu! at on~ pomt m
the Dialogus the Student raised the same issue m relatt~n to impen~l .powcr.
Did the emperor have the same plenitude of power m temporahties that
the pope had (according to some) in spiritual affairs? Could he make law~
42. The debate goes back to a legendary dispute between the twelfth-ce~tury dvi1111n•
Marti nus and Bulgarus. According to a popular story, the emperor Fn:der1dc. ttnrb•m"'""
once asked Martinus and Bulgarus whether he was truly lord of the world (domrnu' n11md1)
Martinus replied simply th11t hl' wa~ indeed lord. Bulgarus explained carefully th11t the' ~m
peror was a supremt• rult•r hut not tlw rtctual owner (dominus) of hi!l subj«ls' pmpt•rty. n1r
!!mpcror theR'upon K"vr hi• h <lfll<" tu M"rtln1111. Bulgaru.~ ob§erved with a rut'ful pun'""' hr
hnd !laid wh•I wn" ln•I (t'lfUll~). hut M•rtl1111• got the hoDe (tquum). f(lr 11 rt'Ct'lll dl11e111111lon
'*'''
K. t't•nnlnKhm, Tltl' 1'11111,. 11n1I II" I 1rn1 ( llc•rli.rlry, l'llY.l), I!'\- IQ.
·4:\ llu111l11111111in1. 4 I.I. t r1'1 "''
 184 THE IDEA OF NATURAL RIGHTS
for his own private advantage or only for the common utility? There al-
ready existed a large body of thought in earlier works of jurisprudence
and political philosophy about the proper limits to a ruler's authority;
but Ockham succeeded in adding a new argument of his own here. The
people could not confer absolute power on an emperor, he wrote, because
the people itself did not possess such a power over its own individual
members; and the people could not confer more power than it actually
possessed.
To prove this point, Ockham turned to a rather improbable source, a
text of canonistic corporation law dealing with a long-ago dispute in the
church of Troyes. The cathedral chapter there was divided into a majority
of resident canons and a minority of nonresident ones. According to the
custom of the church they all received the same stipends. But in the early
years of the thirteenth century the majority attempted a financial coup.
They appropriated for the common fund of the chapter some vineyards at-
tached to the prebends of the nonresident minority. The case was appealed
to Pope Innocent Ill, and he voided the arrangement. The pope argued,
in effect, that members of a minority in a corporate community could
not be deprived of their individual rights by a vote of the majority. The
Ordinary Gloss, pursuing the matter further, argued that a majority vote
could prevail only in certain necessary actions-the author mentioned
elections and alienations-while in all other cases unanimous consent was
required. This was the argument that Ockham seized upon. The Roman
people could command its members only in matters necessary for the
community; in other cases an individual member would not have to obey
unless he so wished. It followed that the power of the emperor, which
was derived from the community, was simjlarly limited.44
Ockham presented this argument in a few terse lines, without any
particular emphasis, but Gierke long ago saw its importance. He wrote
-----..
44. Diafogus, 3.2.2.27, 923, "Item, imperator non habet maiorem potestatem in tern·
poralibus, quam habuit populus, cum imperator habeat potestatem suam a populo, vt
allegatum est supra. quia populus plus iurisdictionis aut potestatis non potuit transferre in
imperatorem, quam habuit. Sed populus nunquam habuit talem potestatis plenitudinem, vt
possit praecipere cuilibet de populo omne iJlud, quod non est conIra ius diuinum aut contra
ius naturale; quia non poterat praecipere illa, quae non eranl de necessitate facienda, teste
Glossa, extra de constitutione, cum omnis, secundum quam in talibus, quae (non) de necessitate
facienda nihil potest fieri nisi omnes consentiant. Ergo si popuJus praecipit aliquid alicui
de populo, quod non est de necessitate faciendum, non tenetur iUud facere, nisi velit, restat
igitur, quod imperator non habet talem potestatis plenitudinem." The decretal cum omnis
(correctly Cum omnes) (X.l.2.6) referred to the case of the church o f Troyes discussed above.
The O rdinary Gloss here commented, s.v. Constitut11m, "Si vero sint plul"l'S ut rolll'gium, dis ·
tingue, si aliqua facienda sunt ex necessitate, ut alil'nationes, f'lf'•:tionl':" .-t similia, J0111fficit
quod maior pars facit . ... In alii!I qual' ex 1WCt>Ssil11lf' non fiunt, •1•111li" o•r1ml '"'·'· 1111.w i!!li
facit"bant. nihil polt•st fit>ri, nisi ""'"'"' .-unsc•nli.mt "
()CKHAM: RIGHTS AND SOME PROBLEMS Of POLmCAL THOUGHT 185
that Ockham had heTe set a limit, not merely to the power of the ruler, but
" to the power of the State itself."•5 We should add that Ockham's method-
ology here is significant as well as his conclusion. A discussion about
the relationship between a community and its individual members might
well have been presented in terms of nominalist philosophy; but in fact
Ockham chose to base his argument on a technicality of canonistic corpo-
ration law.
When Ockham turned to the issue that really interested him, the
limitation of papal power, he faced a rather different problem. In the Brev-
iloquium he maintained that an emperor' s power came to him from God
through the people. But it was derived from God only as a remote cause or
in the sense that, once elected, an emperor recognized no superior except
God. 46 The crucial point was that the people could not confer any power
on a ruler that was not already inherent in the commuruty. The situation
was different with the pope. Here Christ himself had directly instituted the
power of the papal office in his commission to Peter, and each new pontiff
succeeded to this divinely ordained authority. The cardinals did not them-
selves possess the divine power of the papacy and could not confer it
on anyone. Ockham exp?ained in the Brevifoquium that they merely desig-
nated a candidate who, when he accepted the papal office, received his
power to rule the church directly from God.47 Yet Ockham also argued in
the Breviloquium that a pope's power was limited by the rights of his sub-
jects just as an emperor's was. In Ockham's view, where the pope was
concerned, God did not choose to bestow absolute power; where the em-
peror was concerned, the people had no absolute power to bestow.
One could make a good case for regarding the Breviloquium as the
first essentially rights-based treatise on political theory. In the Prologue
to this work Ockham wrote that the abuse of papal power was "opposed
to the rights and liberties granted by God and nature," and he attacked
those who "not content with their own rights . . . reach out for the rights
of others." 411 Ockham followed this up by deploying a series of canonis-
tic texts in which earlier popes had themselves affirmed the principl<'
that a supreme pontiff should n ot invade the rights of the faithful but
should seek to preserve them. Pope Innocent Ill, usually no favorit<> of
45. O . Gierke, Pnl1t1cnl TheoritS uf the Middle Age, trans. F. W. Maitland (Camhridgt•, 1'1110),
179 n. 27-l
46. Rrtt•i/oq11ium, 4.8, 15..1. u • • • quamvi-; primo institutum fuerit a Oco p<'r hominc'11 .
tamen postquam imperium r<'r onlinilli1•m•m humanum institutum est, lmpt•mto r 0 111111111
habl't rt'gularitf'r !\upt•riorl'm In h•mpo rdlil•11,., ni~i ~olum l'Num."
47. llm•rl11q11i11m. 4.'1, 11\1
41\. llrrrtilitquium, l'rulc•K11~. 111, ·· hulhu• C'l lllwrlalihu~ a IJ\•o rl 11 n11hm1 v1>t>h1 <011
c·c·~"i" .ulvi•r.in_. ", " 'I"' l''''t''ll• 111111111~ """ c'n11trnl11 11.t 11111•1111. t11m tllvln" •111"111
'"'"'' "''' "'""''- "''"'"'.,'" 11011 l'" v""' uni "
186 THE IDEA OF NATURAL RIGHTS
Ockham, wrote that he did not intend to disturb the rights of the king of
France. Gregory the Great disclaimed any intention of diminishing the
rights of his brother-bishops. Also Gregory IX, in the Proemium to the De-
cretals, his authoritative codification of church law, quoted the civilian
dictum that the law should "render to each his right." 49 And, from the
point of view of the subjects, Ockham added, "To neglect common rights
is a vice."50
Later on in the Breviloql1ium, and in other discussions scattered
throughout his political writings, Ockham achieved a new kind of syn-
thesis by weaving together the idea of the natural rights inherent in all
persons with the specifically Christian concept of evangelical liberty and
with the canonistic understanding of a right as something that could not
be taken away without fault or cause. The idea that ius nalurale could be
associated with evangelical liberty, understood as a sphere of personal au-
tonomy, had been suggested by some of the early Decretists; 51 but Ock-
ham carried the argument further by relating the concepts of natural rights
and gospel freedom in a way that set limits to the God-given power of a
supreme pontiff.
Ockham addressed the is.5ue of papal authority by asking whether the
pope had such a plenitude of power from God in spiritual and temporal
affairs that he could do anything not contrary to the immutable principles
of divine and natural law. Even the extreme papalists recognized that
these laws set limits to the authority of a pope; but Ockham's point was
that they were not the only limits. One could envisage many papal com-
mands whose fulfillment would not involve any offense against divine or
natural law but that would still be unjust because they violated the rights
of others without fault or cause. The papalist view that Ockham was at-
tacking-though truly it would be hard to find a papalist who envisaged
in detail all the claims that Ockham mentioned-held that, although the
pope might sin in issuing unjust decrees, still he had the power to act as
he chose, and there was an obligation on the subjects to obey. A papal
decree could be unjust but still valid.52 Ockham maintained that such de-
crees were not binding because they were simply ultra vires, excluded
49. Ibid., 1.3, 44, citing X.2.1.13, Dist. 99 c5, X. P~mium.
SO. Ibid., 1.4, 45, ". . . negligere iura communia est vitium. .. .H
51. See above, 66- 68.
52. Bmliloquium, 2.1, 54, " ... nonnulli tenent quod papa sic ha bet a Christo plenitudinem
potestatis, ut omnia tam in temporalibus, quam in spiritualibus possit de iure, que nee iuri
naturali nee legi divine repugnant in tanturn. quod, quamvis quedam talia de facto precipi·
endo vel faciendo peccaret mortaliler, tamen facta tenerent et sibi essel obediendum de
necessitate salutis." By natural law here Ockham plainly meant the first of the three kind'! o f
natural law described in the Di11logus. He made hi'! intention dear in the An 1irinc~. OP 1:
1, 229, where he described his advl'rsaries a!I holding lh11t lht> p<>J'<' Wftll ll<mml only "'p<•r
tegem divinam v<'I ius nalur"lr imm11t11bil1• 1•1 lndi10p<·n.~hllt•."
OcKllAM: RJGtn'S AND SoME PR0 8l.f.MS Of PoLmCAL THOUCKT 187
from the regular exercise of the jurisdiction that the pope received from
God.s3
Ockham's favorite way of proving this was to argue that the evangeli·
cal liberty proclaimed in scripture limited papal power by safeguarding
the natural and civil rights of the pope's subjects. The argument from
evangelical liberty was first introduced in the Contra Benedictum, then de-
veloped at length in the An princeps, and repeated in several other works.~
In the Breviloquium Ockham noted that the papalists took their stand on
the words of Christ to Peter, "Whatsoever you shall bind on earth .. ." to·
gether with the further comment of Innocent III on these words, "Except-
ing nothing when he said 'Whatsoever'." But, on the contrary, Ockham
maintained, it was an established principle of canon law that general ex-
pressions were to be understood with appropriate exceptions; and so it
was in this case.ss Christian law was a law of liberty, indeed, "a law of per-
fect liberty" according to the Epistle of James. Paul too wrote of "the free-
dom that we have in Christ Jesus" and declared that "Where the spirit
of the Lord is, there is liberty."56 But, if the pope could command anything
not contrary to divine and natural law, then Christian law would be a
law of most horrid servitude. All Christians would be made slaves of the
supreme pontiff, for to command anything not forbidden by divine and
natural law was precisely the kind of power that a master held over his
slaves.57 In the An princeps, Ockham wrote that, given this kind of pleni-
tude of power, the pope could depose kings and princes from their offic~
and deprive all clerics and layfolk of their goods and rights-and all this
without fault or cause.56 Such assertions were absurd, Ockham wrote; they
were contrary to the liberty of evangelical law, heretical, pernicious, dan-
gerous to everyone.S9 The proper limits to papal power were set by tht•
53. Ibid., 2.4, 59, "Et ideo si in contravenientem ferret sentent.iam, ipsa sententia l'SIK'I
nulla tamquam a non suo iudice lata.. . .H
54. Ockham returned to this th.e me repeatedly in his later works. The principal phll'l"fl
where he discussed evangelical liberty and natural rights as restraints on papal power nn•
Bmriloq11i11m, 2.3- 4, 56-9 and 2.17-18, 90-95; An princq15, OP 1: 2, 233-5; Odo qWJr.;tiont'fi, <JI'
I: 1.6, 29-30; Dia/ogus, 3.1.1. 5-8, 776-80; Ck imfNratorum ti pontificum poltSllllt, ed. R. &hob
in Unbekannlt kirc:htnpolitischt StrtiJschrifrtn llUS du ail Ludwig des Bayun (1327- 13.54), 2 VOIN.
(Rome, 1914), 2:1- 9, 456-66.
55. Breviloq111um, 2.2, 55; 2.14, 82.
56. Ibid., 2.3, 56- 7, citing James 1.25; Cal. 2.4; 2 Cor. 3.17.
57. Ibid ., 2.3, 57-8.
58. An prinu~, OP I: 2.2'.\2; Oct11 qw1rsti1ms, 0 1' 1: l .6, 29; VialoX11~. :l.1.1.6, 77t>; /)t inrr t i
porrl. pol., I, 456.
59. Arr princ·t~, 01' I: 2, 212, " 1'1_.1 "l"K" pi!pa. si hahrn•I talt>m plM1ituJlrwm p<ltMOl8tlN,
!lint• n 1lp11t•t11rnw11w l"8UM l"t'M"' rl prl11< lpn ,... dllo11d1··rit"o.'ll1•1l11koro11nlvrrau111lr d lKnlh1I
it111N aui" dC'prnwrr ip.. 1111111r 1•11\lul' 0111111'111• rrl•u~ aui~ rt lurlt>u" . . 'I""" Aha111<ll,.11lrn•
It>""'·
:iunl 1•1 tlhrrl"ll rv1111Krlh·411,. 'I"".,••• 1tlvlnl• .. rlphrrh• h11!i.-hrr, tlrrtl)tllllllft m11n1f.-.1..
 188 THE IDEA OF NATURAL RIGHTS
liberties and temporal rights of emperors, kings, princes and other per-
sons, rights that came to them from natural law or the law of nations or
civil law. Without cause and without fauJt the pope ought not to disturb
these rights of others.60 His power did not extend to anything severely
prejudicial to "the temporal rights and liberties conceded by God and
nature."6'
There were difficulties in this argument that Ockham could foresee.
When he took up the same theme in the Dialogus he had the Student protest
that the scriptural texts on evangelical liberty referred only to freedom
from sin or from the demands of the Mosaic law. The Master, however,
explained that Christian liberty would be meaningless if the pope were
empowered to impose even heavier burdens on the faithful than the Old
Law did on the Jews. The Student further objected that the argument from
evangelical liberty seemed to exclude all servitude in Christian societies.
The Master replied that servitude could be introduced by human law; his
point was that the law of Christ itself did not enslave anyone.62
In the An princeps Ockham was principally concerned with temporal
rights. In other works he emphasized equally the spiritual liberties of
Christians, especially as regards works of supererogation. Such things as
taking a vow of virginity, fasting on bread and water, or renouncing all of
one's property were certainly not contrary to divine or natural law. They
were indeed works of Christian perfection. Yet the pope could not regu-
larly command such things because, once again, to do so would be con-
trary to the liberty of gospel law.63
Quare non solum est falswn papam habere huiusmodi plenitudinem potestatis, sed etiam
est haereticum, pemiciosum et pe.riculosum mortalibus universis."
tiO. Ibid., 244, "Quemadmodum igitur a praedicta generalitate, qua dicitur: Quodcunque
ligaveris, etc. excipi debent illa . .. quae essent in notabile et enorme detrimentum et dis·
pendium ltbertatum et iurium temporalium imperatorum, regum, principum et aliorum
laicorum et etiam dericorum, quae eis iure naturali, gentium vel civili ante vel post institu-
tionem legis evangelkae competebant. Ad illa enim potestas papalis regulariter mini me se
extendit, cum absque causa et sine cuJpa iura turbare non debeat aliorum, Extra, de iudiciis,
Novit." The decretal Nwil was the one in which Innocent JU wrote that he did not intend to
"disturb" the rights of the king of France. The principle that a right could not be taken away
wii:.Jut fault or cause, often repeated by Ockha.m, was stated in the Ordinary Gloss to X.1 .2..2.
s.v. Culpa caret, cited in the ONO, OP 2: 61, 559. The phrase "sine culpa vet sine causa" was
used by Hostiensis in his commentary on X.1.2.2.
61 . An princeps, OP 1: 6, 251, " ... per legationem generalem papa non habeat potestatem
reslringendi vel tollendi libertates fideliu.m roncessas a Deo et natura."
62. Dialogus, 3.1.1, 6- 7, 777-779.
63. Bmriloquium, 2.17, 91-3, " Hee est enim libertas evangelice legis, quod observatoribus
eius sine culpa eorum extra articulum urgentis necessitatis et ma.nifestc utilitatis, ip!!is in-
vitis, nichil precipue grave, quod s upererogationi11 e11t, v(') non I'll! cir iurr nalurali nt'c de
iure divino expresso, potest imponl virtulc ciulldrm lt>gi11.... 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.-11111<111•• d1rii1·
Uanum "''R''n° lnvll11m lntratt rrliKi"'"'"' 1111nnw111111111r, rl 1·111 vo•llf'I h•h111t1111111111lh111111n 111
0CKHAM: RIGHTS AND SOME PROBLEMS OF PoLmCAL THoUCHT 189
The phrase iura et libertates that Ockham commonly used is often
found in medieval charters and other documents without any clear differ-
entiation of meaning between the two terms; but Ockham does, sometimes
at least, seem to have had a distinction in mind. In the An princeps Ock-
ham several times qualified the word iura with the adjective temporalia.64
When he wrote of iura here, the rights he had especially in mind seem
to have been those inhering in temporal offices and properties, rights of
possession. But libertates could mean something different. When Ockham
introduced the theme of supererogatory works in the Breviloquium, he
wrote that not only must rights be respected but also "the liberties granted
to mortals by God and nature."6.S Ockham often used "liberty" convention-
ally to contrast with servitude as in the phrase "the natural liberty by
which men are naturally free and not slaves"; 66 but when discussing works
of supererogation he had in mind a further meaning, liberty as defining a
core of spiritual autonomy inherent in the human person, granted "by God
and nature," a freedom of choice in responding to divine love and divine
demands. Supererogatory works, like entering a monastery or vowing to
fast on bread and water, belonged in a realm of moral freedom, outside the
scope of government concern.
Modem writers have argued about whether a right is to be defined
as essentially a "protected interest" or a "protected choice." Ockham in-
cluded both concepts in the phrase iura et libertates. The temporal iura can
best be understood as interests; the libertates related to areas of free moral
choice.67
Although there is so much emphasis on individual rights in Ockham's
political works, he was not presenting a theory of social atomism. His de-
fense of rights was always balanced by a concern for the common good or
common utility (Ockham used the terms indifferently). Ockham expressed
this concern in several ways. He cited the familiar Aristotelian view that a
- --- - -- - - - -
pane et aqua, saltem extra necessitatem extremam, iniungere, et cuilibet pro sue arbitrio vol-
untatis abdicationem proprietatis omnium rerum indicere. Quare posse! de iure maioribuA
oneribus premere christianos, quam unquam fuerint oppressi ludei, quod libertati t>van-
gelice legis obviat manifeste.•
64. An princeps, OP 1: 6, 250 Niura legitima temporalia"; "salvis iuribus temporalibu!l 1111h
ditorum el libertates"; 251, " iun"bus temporaJibus ac libertatibus."
65. Brroi/oq11ium, 2.17, 90- 91, "Nee solum iura i.mperatorum, regum et aliorum .. . Alll\I
excipienda, sed etiam liber1ates a Deo et a natura concesse mortetlis excipi dcbcmt...."
66. An princeps, OP I: 6, 24R, " ... libertas naturalis, qua homines naturalitet" 11unt Ul>t'rl rl
non servi. ..."
67. The distinction l>t•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
0
rnlion of riKht", thr ..,, 011Al 1111 .,.., In lht!h • 11111<•111 A " pmlf't1t•<I d\Cll«' m•y rrlrr lu • p11MIYr
•
riKhl, r K·· lh1· rll(hl 11111'•111t11111l 1•t11v1111111t 11l t111M•t 11r wt11lvl' II. A "'pmtrdrd lnlfn'•t" mny rrfr1
1111111 -· •lvt• 1ll(hl, 1• K, llH11l.hl 111Yllltt1111 whum w .. 1 ""'""'
-
1'l(l THE IDEA OF NATURAL RIGHTS
just government existed for the common good, not for the private advan-
tage of the ruler.68 He also found a text of the Decretum asserting that Jaws
should be instituted "for the common utility of the citizens."69 From scrip-
ture he quoted the text "The kings of the gentiles lord it over them. Not so
you ...."(Luke 22.25-6) to prove that the papal office was one of service
to the community not one of domination. Similarly, in arguing against an
imperial plenitude of power he wrote that the emperor could act only for
~he co~~n ~tility.70 In using such language Ockham was not propound-
mg a utilitanan theory of government in opposition to a rights-based
theory in the manner of some later utilitarians. Rather he maintained that
the.co~on utili~ nor:mally required rulers to respect the natural rights of
their subJects. Christ dtd not want the pope to rule for his own advantage,
Ockham wrote, but for the common utility. Then he added, "And therefore
the supreme pontiff does not have power from Christ to despoil others of
their liberties, rights and goods by his arbitrary will.'171 Elsewhere he wrote
68. Brroifoquium, 2.5, 60, " Nam principatus apostolicus seu papalis non minus institu-
~s est propter communem utilitatem fidelium, quam principatus secularis temperatus et
iustus propter utilitatem subiectorum; qui tamen propter utilitatem subclitorum institutus
est secundum mundi sapientem in Politkis" (referring to Aristotle, Politics, 3.6). See also
An princqJS, OP 1: 2, 233, n • • • non in periculum sed ad utilitatem fidelium receperunt a
Domino potestatem. .. . n, 240, " ... a Deo mediante populo, qui accepit potestatem a Deo
praeficiendi sibi regem propter bonum commune"; Octo quaestiontS, OP 1: 8.5, 197, "Quia
natura optimi modi monarchiae regalis . .. in hoc consistit, quod est institutus propter bonum
co_mmune subiectorum et non propter utilitatem, honorem et gloriam principantis . .. ";
D1alogus, 3.2.2.20, 918, " .. . nee imperator potest eis hoc praecipere absque utilitate boni
~munis. . .." These are just a few typical examples. Ockham referred to government in-
s~1tuted for the common good or common utility in dozens of places, scattered throughout
his later works. But, in spite of this emphasis on the common good, Ockham did not have
a very positive view of the functions of government. In the Octo qUlltstionrs he wrote that a
ruler was instituted "principalissime ... ut corrigat et puniat delinquentes" (3.9, 110).
69. Brroiloquium, 25, 60. "Amplius leges civiles pro nullo privato rommodo, sed pro bono
comm uni debent institui, dist. 4. Erit auttm." Dist. 4 c.2, of the Decrttum stated, "Lex erit hon-
esta, iusta ... nullo privato commodo, sed pro commune civium utilitate conscripta.n
Ockham quoted the text again in An princqJS, OP 1: 2, 233 and Dialogus 3.2.2.27, 923.
70. ~imp. d pont. pot., 6, 462. After quoting Luke 22, Ockham continued," . .. id est
n~- debet~ eis p rincipari propter utilitatem vestram temporalem vel gloriam, sed propter
utihtatem 1psorum, ut vere a serviendo et ministrando, idest procurando utilitatem vobis
subiectorum, vere servi et ministri did valeatis eorum, et vester principatus non dominativus,
sed ministrativus debeat nuncupari." For a typical te.xt on imperial power see Dialog11s,
3.2.2.27, 912, u • • • sed limitata est potestas, ut quo ad liberos sibi subiectos et res eorum
solummodo ilia potest, quae prosunt ad communem utilitatem"; 3.2.2.28, 924, n • • • quod
placet principi, scilicet imperatori, rationabile et iuste propter bonum commune legis habet
vigorem."
71. An princtps, OP 1: 5, 244, "No n enim Christus voluit omnes homincs servituti sum mi
pontificis subiugare nee vult i.p sum praeesse aliis propter propriam, ;oaf proptt>r communt"m
utilitatem. Et ideo non habet pontifex summu~ 11 Oiri:oto pol«':"tAll'm pro""""' nrhllrlo volun·
tatis spoliandi alios llb<-rtatihu~. i11rih1111. t•I n•hu• .. . .··
OcKHAM: RICITT'S ANO SOME PROBLEMS Of POUTICAL THoUGHT 191
that the pope's authority extended to everything necessary to uphold th('
faith and the common good "saving the rights and liberties of others
granted to them by God and nature.'172 •
This is not the whole of Ockham' s argument. In the passage JUSt
quoted, and in other contexts, the Franciscan wrote that on occasion (casu-
aliter), in case of extreme necessity or very g.reat utility, the pope could
interfere with the temporal rights of rulers and other persons in order to
defend the church against some extreme peril.73 It was the same with
works of supererogation. The pope could not normally impose such tasks,
but there could be exceptions in a case of "necessity or utility tantamount
to necessity.'174 On occasion (in casu) the pope did have the power to im-
pose a task such as fasting on bread and water for some necess~ry pur-
pose, for instance to punish a crime (though, as Ockham noted, if such a
task were carried out under compulsion, it would not really be a work of
supererogation).75 It seems that, for Ockham, common utility prevailed
over private rights in the last resort. But this is still not quite the end of
his argument. Ockham was not content to leave it to the pope alone to
decide what powers he could exercise even in case of necessity. The first
infallible rule in such matters, he wrote, was "scripture and right rea-
son." So, if the pope erred in defining his own power, all those who knew
from scripture and necessary reason that he erred were bound to rebuke
n . Ibid., 245, " . .. data fuit sibi a Christo potestas in hiis, quae bono communi profici-
unt, salvo in temporalibus iure aliorum... ."; Brtvi!oquium, 2.20, 99, " ... potestas pa-
palis . .. se extendit ad omnia que necessaria sunt pro regimine populi christiani . . . 53lvis
iuribus et libertatibus aliorum eis concessis a Deo et a natura."
73. An princtps, OP, 1: 5, 244, " Ad quae tamen casualiter, puta in casu summae utilitatls
vel vicinae aut extremae necessitatis vel propinquae, rationabile sit ut se possit extendtrl',
quatenus communitati fidelium in omnibus necessariis per Christum provisum erat, nl' l'X ·
tremo exponatur periculo propter ignorantiam, ignaviam, impotentiam, pusillanimitatt'm,
quamcunque libidinem vel malitiam quorumcunque."
74. Ibid ., 7, 252, "Qui etiam casualiter tam in spirituaJibus aliis, quae scilicet regularitrr
supererogationis sunt et in quibus fideles reguJariter licite possunt quod volunt fare,., q1111m
in temporalibus, quandam habet plenitudinem potestatis: ut scilicet in casu, quo n«t'S.W t'!ll
talia fieri et nemo est, ad quern talia spectent, qui de ipsis d iligentiam habeat congruentrm,
ipse habeat potestatem de talibus disponendi.... "; ~imp. d ponl. pol., 5,_459, "Supere"'K"
toria etiam excipi debent, que licet papa etiam christi.anis valet suadere, sine culpa tamrn 1•1
absque causa rationabili el manifesta, scilicet extra casum nccessitatis et utilitati11, qur 1'4'<'1,.
sitati valeat comparar;, nulli chrisliano, qui ad huiusmodi ~ullatenus ~ lp:nim oh~1K11v lt .
videtur sub d istricti<>nc pf'l'('l'pti iniunK''"'· . .... There is a similar reservation m1wrrn111K tllf'
case of n('("('S.o;ity o r utility n1mparahh• to nt'<'1'!<llity in Rrroilllq11iu111, 2.17, 91 11nd Orio 'I""""
lim1r:<, OI' I: l.7r1S.
~- I>ial"f(u~. :l.2 .1.7, •,;\!\, " •(111"111lh(lll• fnd .tl 41(1q11hl. •)mld t'l'I :oupt•rrn'l(atlonh<. nulh
p11tc~t rr"1'C'ipc'l1" nl~l In 1·••111111•11•111 .. _, ,,.. llt'<'t'NOlllll.. fnrlrnclum. "' tum· non ....,.... rrp
111,ul ~uprn•rt>j1,ntlo11ia, ....1 ""' 11H•1h11n ah 111 1•1111•trr n 1lp11m pt,.,...,
4111<'111 P'""'·lprh'
ll'hlllllll' In p1111r rl "'I""· v11l l11f1 "'" 1111111,ulrl 111111 vrl .. 1111111<1 l111l11a1tul<ll "
 192 1HE IDEA OF NATURAL RIGHTS
him.76 After repeating that in case of necessity the pope's power could
exten~ to temporal affairs and matters that were regularly works of super-
erogation, Ockham summed up by noting that, in such circumstances, "IJ
his decree is just and useful others are bound to obey; if it is unjust and
useless others are bound to resist."71 Ockham's argument has been seen as
an "exaltation of human will" creating a disjunction between the general
and rational character of law and the decisions of individual wills resisting
it.71 But this was not what Ockham was arguing. For him, scripture and
~ght reason, not naked will, de.f ined both the power of the pope and the
nghts of the faithful. The gap in Ockham's theory is the absence of any in-
stitutional machinery to mediate between ruler and community in case of
dispute. In the end the decision to obey or resist is left to the individual
conscience-but to a conscience informed by reason and scripture.
There is nothing especially radical or novel about the particular limits
to papal power that Ockham wanted to establish. The doctrine that the
pope did not normally intervene in temporal affairs but could do so casu-
aliter, in exceptional circumstances, was rooted in a decretal of Innocent III
that had attracted a considerable body of canonistic commentary.79 Every-
one agreed that government was instituted for the common good, and
probably no one would have denied that the papal office was one of min-
istry or service to the church. After all, the official title of the pope was
"Servant of the servants of God," and the Ordinary Gloss to the Decretals,
commenting on these words, recalled the scriptural admonition, "Who is
greater among you, let him be your minister."80 So too with works of
76. An princ:eps, OP 1: 6, 251. "Sed quaeret aliquis, si non est specialiter et in particu-
lari expressum in quibus casibus habeat potestatem . .. ad quern pertinet explicare et de-
terminare in quibus casibus papa habeat potestatem, et in quibus non habeat potestatem?
Huie respondetur quod prima regula et infallibilis in huiusmodi est scriptura sacra et ratio
recta.. .. Si tam.en papa contra veritatem in huiusmodi determinare praesumpserit, sibi nul-
latenus est credendum; sed illi, qui per scripturas sacras et rationern necessariam sciunt
ipsum errare, loco et tempore opportunis, allis circumstantiis debitis observatis, eum repro-
bare tenentur. . .."
77. Ibid., 252, " ... cuius dispositioni, si iusta et utilis fuerit, am obedire lenentur; si
autem iniusta fuerit et inutilis, alii sibi resistere obHgantur."
78. M Bastit, N11iSS1met de IA loi modnnt (Paris, 1990), 303.
79. In the dec:retal Per VCttrllbiftm (X.4.13.17) Innocent UI declared that, although he
did not normally exercise temporal jurisdiction outside the papal states, he could do so on
occasion (CllSVll/iter). " .. . certis causis inspectis, temporalem iurisdictionem casualiter exer-
cemus." Odcham quoted these words in 81Tt1iloquium, 2.15, 86. The canonists commonly
glossed the decretal by presenting long lists of the specific cases in which the pope could
intervene in temporal cases. Oclcham, as noted above, took a different approach. Jn t.h e Dill-
logus, after referring to the pope's extraordinary power in case of necessity, he wrote, Hit is not
easy to explain all the cases individually in which he can do the abovl' m~ntiont'd things o r
any of them, and perhaps it is not possibl~ to giv~ 11 univl'r11&l fl•"rhln)t n>n<...,rninK tlwm . . ."
(DUllOKUS, 3.1.1.16, 786).
!Ml. G lo!lll ad X f'n>f''1ti11m" v Strm1•
CX:KHAM: RIGHTS AND SoME PROBLEMS OF POLITICAL THOUGHT 193
supererogation. It was commonly understood that they should be under-
taken voluntarily and Ockham could, quite appropriately, cite the Ordi-
nary Gloss to the Decretum when he wanted to make the same point."1
The new feature of Ockham's work was that all these conventional as-
sertions were set in a framework of discourse about natural rights, the
rights granted to humankind "by God and nature." Ockham's persistent
emphasis on natural rights as setting limits to a ruler's power has no clear
precedent in earlier writings.82 But, of course, it had a considerable futul"l'
in later rights theories.
A RIGHTS-BASED POLITICAL THEORY?
Should we say then in the end that Ockham created, perhaps for
the first time, an ecclesiology and political theory founded on the concept
of natural rights? It depends on how we define a rights-based theory.
Some modem scholars have set rather exacting criteria. L. W. Sumner, for
instance, has argued that such a theory must define natural rights as free-
doms (choice rights), and treat such rights "and nothing else" as morally
basic.83 Sumner acknowledges a little ingenuously, that his definition ex-
cludes all the major rights theories of the early modem period . And one
may indeed doubt whether any current rights theory would satisfy his
criteria. Nowadays, even the most extreme libertarian proponents of indi·
vidual natural rights will usually defend those rights by appealing to more
basic moral arguments about human personality.84 There seems to be a sort
of Godel's theorem that applies to legal and political systems of thought,
including those that emphasize rights; they all depend on some premise
drawn from outside the system itself. This is what we find in Ockham. He
de rived both natural rights and natural law from "right reason," from an
underlying view of human persons as rational, free, and morally respon-
sible. It is the same attitude we found also in earlier canonistic treatments
of ius naturale.
Following a suggestion of Ronald Dworkin, Sumner also pointed out
that a true rights-based theory must be distinguished from theorit.>S tha t
81. Breviloquium, 2.17, 91, citing the gloss ad C.32 q .1 c.13.
82. There are many discussions of limitations to a ruler 's power by divint' and na turnl
law bul only scattered references to individual natural rights in this conteict. E.g.• tht• dvillnn
jurist Odofrcdus wrote tha t the emperor could not arbilrarily deprive suhjcct~ of th1•ir l'" 'I'
t•rty "because natural righls art" immutabll•." 5l'e his Pratltclionrs i11 . • • l>("l~lw11 ""'''""
(Lyons, 1552), fol. 1q3 ra, "Sl'd """In h11<· qul'~linnf' didmm quod illud quod cnmpc•til mihl
naturali ratione cl equitalt•, ut 1.lnml11h1111 rl"i n11... ... non pol<'!lt to lll'll', q11i11 l11r11 n11llm\ll11
~uni imm1,.,ili11: ·
R1. 1.. W. Sumtw•r, Tl1t M ,,r.i/ fou,,,l1ll lm1 it/ H1.11l,I.• fl >•fnnl, l'IK7). Hit.- IOK.
H4 s...... K T I< M111fo111. """'"" "'""'" ""'' " " ""'" l .ilN"rlll'.• (<"hk11x1•. 1'>7~). 24H
"Tl"llll' mur11l 1•ol11t 111 vt.. w lrnm whh h h111t11111 tlKhl• ur 1h•rlvC'<l I" murt' l•11"l• lh"" lt11m1m
1l11ht• ..
 194 THE IDEA OF NATURAL R IGHTS

are based on duties or on goals (i.e., utilitarian or other "consequentiaHst"

doctrines). There are evident differences between the various approaches;
but perhaps we ought not to draw the lines of distinction between them
too sharply. In making a moral or political decision a reasonable person
will often consider all three factors. And it seems a matter of common
sense that, depending on the circumstances, sometimes one consideration
will prevail, sometimes another. The rights involved may be trivial and the
goal of paramount importance-or vice-versa. Sometimes there may be a
duty to relinquish rights and sometimes a just ground for asserting them.
This is the kind of argument that we find in Ockham. He often asserted the
rights of individuals but also maintained that political society had a goal,
the common good or common utility.85 Usually a person's natural and civil
rights could be invoked against attempted abuses of a ruler's power; but
occasionally, in cases of urgent necessity, the requirements of the common
good might prevail over the rights of an individual.
Such considerations may persuade us that Ockham did not create
a "pure" rights-based theory. Perhaps no one has ever done so. But Ock-
ham's writings on ecclesiology and political thought were certainly per-
vaded by a real concern for what we now call human rights, rights granted
to the whole human race "by God and nature." Ockham wrote of alienable
natural rights and of at least one inalienable natural right, the right of self-
preservation. We can find in his work suppositious natural rights that
depended on the enactment of some preceding human law; also active
rights and passive rights; rights considered as "protected choices" and as
"protected interests," rights related to human liberty and to human wel-
fare. Ockharn did not set out to construct a systematic body of thought
about natural rights and he did not opt for the distinctive solutions that
would later be embodied in some particular modem rights theory. Instead,
like the juristic works that he cited, he presented elements of thought that
would be used to sustain a variety of later theories.
85. Ockham provided a fine p iece of "consequentialist" rhetoric when he deplored the
evil results of papal absolutism, Dt imp. et pont. pot., 7, 461, "The churches are afflicted with
unbearable burdens, indeed reduced to servitude against the evangelical liberty divinely
and humanly granted, licit oaths are relaxed, s ubjects of pri~ an- IOO!led fmm f('alty and
due service, the bonds of human !IOCiety are di11ruptc>d ... thf' (lf'Oplt< dt'!llmy1'<I . . tl•'!tlru<"-
tion and confu.'llon rel~. clth'f' ""' huml'<l ... imd all an- 1•1tp<1"MI to . llvrrM pc·rll1< •·
EIGHT
, .:., : .:" :" '·:,, .:-.: t :. :, '
POSTSCRIPT
lf n the preceding chapters I have been trying to place Ockharn in a t~adi­
JL tion of thought that led from medieval jurisprudence to modem nghts
theories. But, to understand how Ockham could come to play a major role
in a process of historical developm~nt tha~ he him_sel~, in~tably,.was en-
tirely unaware of, we need primanly to s1t:uate h~ in his own time and 1
place and in his own world of thought. In mtroduong Ockham s work, I
suggested that we need to consider it in three contexts-the context of t~c
real-life struggles in which he became engaged, the context of Ockham s
own earlier reflections on philosophy and moral theology,.and the conte~t
of the canonistic sources on which he so often relied. It will be helpful, m
conclusion, to consider each of these themes in tum.
The first context need not detain us long. Everyone agrees that Ock-
ham's involvement in the ecclesiological and political issues that dom i·
nated the last twenty years of his life came about fortuitously. His early
writings display no interest in such themes. There is no reason to suppMt'
that he would ever have given his mind to them if he had not happened to
be in Avignon on other business when the conflict ~tween John_ XXll anci
Michael of Cesena broke out. We need to add that it was not simply tht•
fact of the conflict and Michael's flight to the protection of the emperor thn I
shaped the content of Ockham's polemical writings, but also the fim• dt•tnll
o f the issues involvt'd . To follow the argument of the OND we need to lw
acquainted with all tht• twb1tH nnd turn~ of the earlier exchanges hctwt'l'n
John XXll and th<' Mkhn1•llP1t l'rnndM<"am1. To under.;tand what Wi\11 Jh•·
tinctiv<' in rkkhnm '1t tl11111~hl "huul rl~hlH wt• nt.'t•d lo be famlllnr with tlw
Jiii\
 196 THE IDEA OF NATURAL RIGHTS
views of various other participants in the poverty dispute. To see the point
of some of the later political writings on papal-imperial relations we
would need to know about such things as the Anglo-imperial alliance of
1337, the Declaration of Rense issued by the German princes in 1338, the
iar.;-~nal decree Licet iuris promulgated in the same year, and the Tyrolese
marriage dispute of 1342. These are obvious points. But, given the current
fashion for discussing political theories as though they were simply ex-
emplifications of different languages of discourse, it may be worthwhile
to mention them. As Ian Shapiro has pointed out, we cannot understand
political ideas merely by a formalistic study of "matrices of language.''1
To become meaningful the language has to be situated in the real world of
the writer.
Still, the matrices of language are important. A person can think or
write only in the languages available to him, languages that will typi-
cally include not only a vocabulary of words but a vocabulary of taken-
for-granted assumptions. And a major problem in coming to terms with
Ockham, as I noted at the outset, is to decide whether the language of
nominalism and voluntarism associated with his early work can help us
to understand his later thought on ecclesiology and political theory in-
cluding, especially, his teaching on natural rights. The older interpretation
of writers like de Lagarde and Villey, asserting a close interdependence
between the two areas of thought, has recently been restated in an uncom-
promising fashion by Michel Bastit. But it still offers difficulties. Among
writers who support this position we can read over and over again that, on
the level of political discourse, Ockham's nominalism led to "social atom-
ism." (De Lagarde expressed the same thought with a welcome change of
terminology when he referred to the " individualist microbe" that Ockham
introduced into medieval thought.}1 But a word like "atomism" does not
adequately convey Ockham' s persistent concern for the common good.
Moreover, no necessary link between nominalism and political theory was
asserted in Ockham's work; and, among medieval authors generally, there
seems to be no correlation between a writer's theory of universals and
his political orientation. Ockham and Wyclif were both radical critics of
the fourteenth-century papacy and defenders of the secular power, but
Ockham was a nominalist and WycliJ was a realist. Many more examples
of such incongruities were given by Charles Zuckerman in a penetrating
article on this theme.3 It seems that any medieval author who was clever
1. I. Shapiro, #Realism in the Study of the History of ldeas,n History of Politic11/ Thought 3
(1982): 535- 78.
2. L4 n11iSS11nu de /'esprit l11i"q11e 1111 dtclin du moyen dgr, 5 vols . 2nd ed. (Paris, 1956-70),
5:334.
3. C. Zuckt'rman, "Tut' Rt'lationship of llwori<'!I of U nivC'rll11l1< lo llu><iril'1' o f Chur<h
Govt'Tllmmt: A C riliqut' of l'n•v io11!4 ViC'w!<." /c>urnnl "' thr /IM11n1 "/ I.Im~ :\<; ( 11171)· 'l7Q <;QO.
POSTSCRIPT 197
enough to be a scholastic philosopher in the first place was quite capable of
associating any preferred set of metaphysical premises with any chosen
political stance. Ockham's theory of rights was compatible with his nomi-
nalist philosophy, but it was also compatible with any philosophy that
acknowledged-as all Christian philosophers did- the existence and
value of individual human persons.
Ockham's supposed voluntarism might seem to provide a more ob-
vious link between his philosophy and hls political theory. Even if meta-
physica1subtleties have no necessary connection with political ideas, we
cannot say the same about theories of human psychology and human be-
havior. Understandably, therefore, Bastit especially emphasized Ockham's
voluntarism in his treatment of this issue. But unfortunately, while an em-
phasis on Ockham's nominalism is merely lacking in explanatory force in
relation to his political thought, an emphasis on his voluntarism can lead
to radical misjudgments concerning it. Bastit suggested that the ideas
Ockham developed in reflecting on the omnipotence of God served later to
exalt the power of the emperor.4 In this interpretation, Ockham conceiv<'d
of political authority simply as "power, that is to say will." His treatment
of individual rights and liberties also reflected "an exaltation of the human
will." Bastit deployed a similar argument to explain Ockham's teaching on
the intrinsic nature of law. Since all existing reality is contingent on the will
of God, which might change, there can be no law rooted in the inherent
nature of things. Law is detached from any essential end. Its definition, for
Ockham, no longer includes justice as an essential criterion. "(ljhe whole
being of law consists in its being willed by the legislator." 5
But all this is only a kind of imaginary extrapolation of what Ockham
might have written if he had set out to base a political theory on an anal-
ogy with his theology of the absolute power of God. Ockham had no such
intention . For him the divine will and human wills were incommensu-
rable. In God there was no distinction between will and intellect; alt that
God willed was just and right. A human will, on the other hand, could
choose good or evil, and so needed to be guided by reason.6 Ockham'!'I
teaching on God's absolute power was simply irrelevant to the argument!'I
he developed in his political writings. What conceivable purpose could
have been served, in the context of those works, by Ockham asserting that,
4. Naissance dt la /oi modt'rnt (Pari~. 1990), 243, H • •• les doctrines philrn1ophitJu•·• .-1
lh~ologiques, penstts ... pour t'xalt!'r la lout puissance de Dieu . . . vont pouvnlr 11e·rvlr lr/'Jo
..rficact>mc nl a exaltl'r II' rouvolr .1.. 1·..mpc-rt•u r contre It' pape. • • •H; 303, HOckh11m rl•t<"t• In
, ·1ml<'tilahll'mrnl 1°1.'S.'14.' ll<"t' .It• 111 lo l tli11\A J.• 1lc'd!<i1m volont.a irt'. CC'lll' volonlil l'l'l, 1m him '"'llr
tit> Dil'u, ou t'l'lk- d1• J'f'mpt'n'llr . -
~. lh i1l.. 300, 302, 103
h . ll1•1'lll i•o1tKhl h • 1low11pl11v I lo ~h11111 "• 1 111111111tll•m hv "'KulnK 1h11t, fnr th•• l'r1uwtiw·•n.
thn1• w11" 110 11•111 111flf'lt!llnt t..twt'f'i. " ' "''"" 111111 will SM• lhl•I . 2~2 - . 111 r11hoon. tl11n• 111
198 Tm IDEA OF NATURAL RIGHTS
through his absolute power, God could have created some other uni-
verse of moral values? In some other universe Pope John XXll might have
been right alJ along and the Franciscans wrong. Ockham wanted only to
prove that the pope was wrong in this present universe that God had ac-
tuaUy made.
Interpretations of Ockham as an extreme voluntarist sometimes at-
tribute to him views precisely the opposite of those that he actually held.7
It was Ockham's high papalist adversaries who wanted to make their
ruler a sort of God on earth whose every volition could create law. It was
they who maintained that an unjust command of a pope created valid law,
imposing an obligation to obey, even if the pope sinned in issuing such
a decree. Ockham attacked this position over and over again; as we saw,
he held that such decrees were void because ultra vires. If Ockham had
wanted to create a voluntarist theory of law there were plenty of suitable
texts in the works available to him. He could read in the Ordinary Gloss to
the Decretals, "In the things (the pope) wills, his will stands for reason .. .
nor is there anyone who shall say to him, 'why do you act thus?"'8 Under-
standably, in view of his opinion of the popes who were his contempo-
raries, Ockham did not embrace this point of view. In the Dialogus Ockham
did have the Student quote another famous voluntarist text of Roman and
canon law, "What has pleased the emperor has the force of law"; but the
Master explained that this really meant "What the emperor wills rationally
and justly and for the common good . ..."9 Ockham did not believe that
will was the only criterion of valid law. His own view is perhaps con-
veyed in a text of the Decretum that he cited several times with approval,
"Law shall be worthy, just, possible, in accord with nature . . . necessary,
useful, clear . . . enacted for the common utility of the citizens."10
pensee occamlenne, n'est pas un realit~ distincte de la volonte... .n Referring to reason and
will again, Bastit wrote, " mais chez Occam ii n'y a pas de di.ffemce de l' une a l'autreN(2n).
But this is an oversimplification. Ockham held that reason and will were not separately ex-
isting realities because they were both activities of the same rational soul. But they were
distinct activities. Hence Ockham could write that reason directed the will "as something
other than itsell" (OTh, 8: 410).
7. Sometimes the misunderstandings arise because of errors in the transmission of
Ockham' s texts. According to Goldast and the tdilio princeps of 1494, Ockham wrote in the
D11dog11s of Nmoralia quae nulla possunt ratione muniri," ..moral principles that can be de-
fended by no reason" (1.1.8, 405). This has been seen as a striking example of Ockham's
voluntarism in moral theory. But a check of the manuscripts indicates that what Ockham ac-
tually wrote was, Nmoralia quae nulla possunt ratione mutari." Ockham was referring to
immut.lble moral principles, not irrational ones. On this text see my article, " Natural law
and Canon Law in Ockham's Dililops" (above, 102.• n. 34).
8. Gloss lld X.1.7.3. On this text see K. Pennington, Popt and Bishops. Tht Papal Monarchy
in the Tult.lfth and Thirtmrth Ctnl11riG (Philadelphia, 1984), 117- 25.
9. Dililog11s, 3.2.2. 26-28, 923- 24.
10. Dist. 4 c.3. On the words "acrnrJlng to n11t11n-" thr ( lrtlina')I I ;1•.,.,. 1·unmw111t•<I, "that
i8, natural ~•11on.N for ()ckh11m'• """of tl'M' trxl,..... nhovr, IQCI n f•''
POSTSCRll"T 199
In spite of all these difficulties we may still expect to find some mean-
ingful relationship between Ockham's early views on moral ~eory a~~
his later political thought. As I once wrote, in reading Ockha.m s work, ~t
is one mind we have to deal with not two." And if we set aside the nom:-
nalism and voluntarism that seem to have little relevance fo~ Ockh~m s
ideas on natural law and natural rights, and tum instead to his teac~mgs
on " non-positive moral science," where he emphasized reason as a d1rec~~
ing norm for the will, there is indeed a perfect coherence between his
earlier and later thought. . .
Whenever Ockham discussed natural law or natural nghts he persi~-
tently appealed to right reason as the ground of his argument. Ockham did
not, as has been suggested, abandon the idea of a ra~onal natura_t law ~y
emphasizing arbitrary divine commands and then fill the resultmg void
with a body of natural rights based on individual wills. 11 Inst~ad~ whether
he defined natural right (ius polr) in a subjectiv~ sense or an,?bJeCh~~ sense,
in either case his definition was grounded on nght reason. lus polr is no~h­
ing other than a power conformed to right rea~n. : .." And then ag~1~'.
"lus poli means natural equity ... consonant with nght reason . . . this is
sometimes called natural law... .''12 ForOckham a natural right was not an
assertion of naked will but a power conformed to reason. Similarly, when
Ockham gave his more complex, multi-layered definition of natural law
in the Dialogus, each of the three modes ~e desa?bed was derived from
reason as it was exercised in different contingent arcumstances. .
Ockham deployed the argument from reason at ~very level of ~1.s
discourse. Applied to the intricate details of the Francisca~ poverty dis-
pute, it showed that the friars could )ustly use, by natural nght, property
belonging to others because they used in a manne~ ~onformed to ~ason:
On a broader scale, Ockham's teaching on the ongm of property 1~ t~l
OND seems a precise exemplification of his rat~onal moral theory. A. d1e·
tate of reason" showed that individual properties ought to be estabhsht>J
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<, 1'175), 21tll::·1...,.
olrnil:< ""hj<"<tif~ clr11 lnillvhlu11 0111 romhl" Ir 1•11lr 1Ni11ll"nt 1lf' In J"C'flr tlu 1lrnll n"l11rrl.
12 <JNI II,,. 2 (11\, '"14 .,., . .
n . l'nr .,;, r-i-..llt1t1I tll•• 11..-i." 1ul u•11•n1111wl will In 11u-.l11•v11l j11rl"l'r111lr111 r,..... I· ( 111
r,..'. I 11111•1ma .111111tcl/111, J vul• CMll1111 l'lf•J Ml. J 141 1'"

200 THE IDEA OF NATURAL RIGHTS
Modem arguments that invoke the absolute will of an arbitrary and
inscrutable deity as a necessary background for understanding Ockham's
teaching on law and rights seem to overlook the friar's commitment as a
Christian and a Franciscan. Ockham not only believed that God, in his in-
finite goodness, had chosen to create the universe we live in; he also knew
from scripture that God loved the world he had made. 14 So Ockham never
doubted that, in this world made by a loving God, the divine will willed
the good of humankind. He also believed that God had endowed humans
with a faculty of reason through which they could discern that good. It
has been argued that, in Ockham's way of thinking, since natural law was
in the end nothing but a particular manifestation of God's will, humans
could not find in themselves the means to attain a natural end. •s But
Ockham did see such a natural end for humans-to live and to live weU-
and he maintained that reason could discern this end and the means to
attain it. Moreover, he was serenely confident that the end perceived by
reason and the necessary means to the end were in accord with God's
will. Reason showed, for instance, that humans required certain rights if
they were to live and live well; so Ockham could take it for granted that
God had given those rights to Adam and his progeny.16
What God might have done differently-what kind of other world
he might have created or might create by virtue of his absolute power
and infinite reason-never came into question in Ockham's political writ-
ings. We sometimes assume too readily that the fine-spun speculations
of philosophers and theologians about the manner of coexistence of reason
and will in God were transferred wholesale to the authors' more mun-
dane reflections on law and politics. In fact this seems seldom to have been
the case.
Although the rational side of Ockham's early moral theory coheres
well with his view on law and rights one could not simply deduce the
later views from the earlier ones. An appeal to right reason can be, and
has been, used to support any number of different political theories. To
understand the actual content of Ockham's work we therefore have to
consider- along with the real conflicts in which he became involved-
the soun:es that he drew upon in framing his arguments. Much of what
Ockham wrote on ecclesiology and political theory could have been sup-
ported with arguments drawn from earlier scholastic philosophers who
had criticized the more extreme claims of the papacy-John of Paris, for in-
stance, or Henry of Ghent or Godfrey of Fontaines. But in fact, presumably
because of the limited resources available to him, Ockham based his case
14. John 3 .16, •God so lo ved the world that he gave his only lx1(ollrn N<>n•• • : ·
15. NaisS11n~ dr la loi, ~2.
16. Bm1iloquium, 3 .17, 127. Sc..- 11h<w.-, 17.l.
POSTSCRIYT
201
almost entirely on texts from scripture and canon law. And s~~etimes he
used canon law to show what scripture must have meant. ThJS 15 the final
context within which we need to consider Ockham's work.
Ockham's later writings are saturated with canonistic citations. T_he
fact has often been noticed; but it has commonly been assumed that with
a sort of devilish ingenuity (or "insidious subtlety" in the phrase of de La-
garde), Ockham used the canonistic texts only as a sort of ornamental
facade to hide his real purpose, which was to construct a new language of
politics radically subversive of the canonists' own doctrines. But this view
is mistaken. It reflects an unawareness of the abundance and variety of
earlier canonistic thought on the questions Ockham discussed. Ockham
did not set out to construct some novel theory of his own invention about
papal-imperial relations or evangelical poverty or about natural rights and
natural law. On the contrary he wanted to show that he could appeal to
the traditional law of the church to defend his own views against oppos-
ing ones that he regarded as harmful innovations. He did not intend _to
subvert the foundations of canonistic jurisprudence; he wanted to build
on them.
Ockham was certainly at odds with the canonists of his own age
who were among the foremost supporters of papal absolutism. But the
texts and glosses of the Decretum that he cited could support-~nd ~ad
supported and would in future support-a varie~ o~ oth~r eccles1olog1es.
Gratian had drawn his texts from every age of Christian history, and many
of them did not reflect the extreme papalism that later became fashionable
among the curial canonists. Moreover, Gratian p~ted his_texts in a dia·
tectical form; each time he wanted to prove some point he first presented
all the authorities that could be adduced for the opposing point of view.
This meant that, from the beginning, the Decretum was open to a wide va-
riety of interpretations.
I do not think that a student in the great law school of Bologna around
1200 would have found anything alien or perverse in Ockham's way of
handling Decretist texts. He would already have been expo~ to many
and various interpretations of Gratian's work. Among the eminent mils·
ters whose views he would have encountered some were staunch dt•·
fenders of papal absolutism, others favored more the imperial cauS(', and
still others defended the rights of national kings against the tempurnl
claims of both pope and emperor. Some thought that a . pope ~maid . lw
deposed only for heresy, others maintained that any notonom1 cnme K;\Vt'
grounds for deposition, while still others held that no human trlhunnl
could depose a pope thouKh lw mlKht nutom~tically forfeit hiit office..'. hy
!wcoming a hl•ft'tk. AmonK lhr KloriHt•s of this p<'nod we can nli«l fmd
mnny lldinitinm1 of lw• 11nl11mlr 11111h•r,.tood inn 1mbjl'l:tivl' lll'lll44' '"' 1\ forn•
or fonilty ,11011k·i11h•1I with 1-r1uu111, 1t111I '"' 1•mhry11nk tlodrlm• of nrtlurnl
 203
POSTSCRIPT
202 THE I DEA OF N ATURAL R IGHTS

hen Ockham started out from a canonistic text or a series of odthem,

rights. It was pointed out long ago that, in formulating his views on papal ··ven w . m to us more like early m ern
heresy and related questions of ecclesiology, Ockham could find ample tlic outcome of his argument ~ay ~ . d Ockham took the
.. h J"ke medieval 1unspru ence.
support in these early glosses on the Decretum.17 We can add now that this i•nhhcal theory t an 1 H . mmuni·s 1• e communicanda
· od ed by uguccio co , ··
seems to be true also of his teaching on natural rights and natural law. The ,·,1nonistic phras~ mtr beuch d ") and u~d it as an argument against
Decretists had explored many pathways of thought that Ockham would ("common, that ts to s are ' that recurs in Locke. He
later retrace. /\dam's sole ownership of the wo;\d~=t~~;~:miniscent of Pufendorf's,
We do not know how much of the early Decretist literature Ockham built a coherent theory of proper y,D H defended the natural
became acquainted with during his study at Avignon of the poverty ques- .1round some scattered texts of the ecre1um: . e mbinin in
tion. Sometimes, it seems, he worked out for himself a line of argument ri~hts of subjects agai~~ the claims ~f ty_ra~tc~t~~~:~p~ral idea~ of
that some earlier canonist had explored, without being aware of his pre- .1 new way the canomshc concept o a ng Wtbsc doctrine of canon-
. 1 l"berty Ockham could even take an o ure
decessor's work. But often he found suitable arguments ready at hand in o·v~ngehca t . I. d tum it into an important principle of political
works that he certainly knew and often cited. The core ideas around ishc corporat~on aw. a~e was not embarking on a semantic revolution; he
which Ockham built his doctrine of natural rights and natural law are lhought. B_u t, mall th::~ablished tradition of juristic discourse in new an~i
genuine canonistic ones, not Ockhamist innovations or distortions. His was car,~mg aoynsanMaitland once wrote that, in its infancy, political ph1-
basic understanding of a right as something that a person could not be de- mteres mg w · I d " Ockham
prived of "without fault or cause" was taken directly from the ordinary losophy is apt to look li~e sub\~mated jurisprudence. n rea mg ,
glosses to the Decretum and the Decretals. His three modes of natural law we can see the sublimation taking place.
were all anchored in the texts of the Decretum. Ockham's teaching on the
natural right to use another's property in case of necessity was a standard
canonistic doctrine. His insistence that humans were by nature free and
not slaves reflected an ancient Stoic teaching, but Ockham again found his
authority for it in a text of the Decretum and its gloss.
Having said all this, we need finally to emphasize that Ockham was
not just a passive transmitter of earlier juristic ideas. He was not inter-
ested in pursuing the sort of legal archeology, the disinterring of old texts
for their own sake, that we find in a work like Guido de Baisio's Rosarium,
one of his possible sources. Instead, Ockham sought out the texts he
needed to serve his own purposes and deployed them creatively. Having
reappropriated or reinvented some earlier canonistic understandings of
ius naturale he went on to apply them to the problems of his own day; in
the precess they took on some new meanings and revealed new implica-
tions. The old texts also acquired a new significance from the fact that
Ockham was addressing an audience different from that of the Decretists,
not just a narrow circle of professional canonists but the whole intellectual
world of the Christian West. The language of rights continued to be used
in the works of late medieval jurists but, after Ockham, it increasingly in-
habited the realms of philosophy and political theory.
There was no "semantic revolution" (Villey) or "Copernican revolu-
tion'' (Bastit) in Ockham' s political works, but we can certainly find some
interesting evolutions of thought and language going on there. Sometimes,

17. See my article, #Ockham, tlw C onclliar Tht•o r y, im d ti"' C1111nni1t~." /111m 111/ fl/ lhf' Iii.<
tory of ldns 15 (1954): 40-70.
 NINE

GERSON. CONCILIARISM, CORPORATISM,

AND INDIVIDUALISM

A fter the death of William of Ockham in 1347 the Franciscan war of

propaganda against the popes of Avignon died away. By the end
of the fourteenth century only a few scattered bands of Fraticelli defended
the doctrine of evangelical poverty that Pope John XXII had condemned.
But by then the church was tom apart by a still more grievous dispute, the
<;reat Schism that broke out in 1378. For nearly forty years, two and then
three would-be pontiffs contended for the throne of St. Peter. This intoler-
.1ble situation gave rise to the conciliar movement of church reform. When
.111 attempts at compromise and arbitration had failed, the conciliarists,
drawing on earlier currents of juristic thought, asserted that ultimate au-
thority in the church inhered in the whole Christian community, conceived
of as a corporate entity, a universitas .fidelium, and that a general council,
representing the universal church, was of greater authority than any pope.
Eventually a council did assemble. It removed all three claimants to thC'
papal throne by deposition or forced resignation and then elected a nl'w
pope who came to be universally recognized.
For us, an important aspect of the whole affair is that one of the prin-
d pal conciliar theorists, Jean Gerson, was also an important figure in tht•
d1·vi>lopmcnt of natural rights theories. This suggests two intt>rrt•lnh•d
probll•ms for investigation. flow nm WC' explain the coexistcnn• of corpo·
rntist conciliar and inJividunlisl ri~hts lht•ories in Gcrstm's work? Ami
what C'irn1mstann•s, wh.tl hh1l11rknl nmlt•xt, 11.J to his concrrn with nntu -
r.11 ri>~hls?
)II'/
 208 THE IDEA OF N ATURAL RIGHTS
INDIVIDUAL AND COMMUNITY
. 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 fields-
historians, anthropologists, sociologists-have emphasized the contrast
~tween a "h?lis_ti~" or _or~anic approach to the understanding of soci-
eties and an md1v1duahstic approach. (For medievalists the vast work
~f Gi~rke, devo~ed .essentially to an elaborate investigation of this distinc-
tion, 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 ne-
gle~ts or su~rdinat~ t~e.individual," and individualism as "an ideology
which valonzes the md1v1dual ... and neglects or subordinates the social
2
whole<' The ideology of individualism, so described, is usually seen as
the basis of modem natural rights theories. Indeed, a common criticism of
such ~heories, one that comes from both ends of the political spectrum, left
and nght, asserts that they exalt the isolated, autonomous individual at the
expense of t~e ~hole c~rnmunity. In a famous passage, Marx wrote that
the bourgeois nght to liberty was "not based on the association of man
~it~ man ~ut on their separation"; it was "the right of the restricted in-
d1v1dual withdrawn into himself." 3 In similar fashion, but from a conser-
~ative point of view, Leo Strauss complained that, in seventeenth-century
nghts theories, "the individual, the ego, had become the center and origin
of the moral world."4
If, now, we approach modern scholarship on conciliarism with such
criticisms in i:nind we quickly encounter a problem or paradox, an appar-
ent anomaly m recent work on the conciliar movement. s Modem scholars
usually see conciliarism as a form of holistic, corporatist ideology, and they
. 1. 0 . von Gierke, Das drotsche Ge110SMnschaftsreclrt, 4 vols. (Berlin, 1868- 1914). After
Gierke (and H~el o~ course) one thinks of Durkheim, Weber, Troeltsch, T0nnies, and Popper.
For all of them, m d1Jferenl ways, the distinction between holism and individualism was of
central importance.
~· L. Dumont, Essays on Individualism. Modern Ideology in Anthropologrcal Perspective
(Ch1cag_o , 1986). Dumoot follo ws Michel ViJJey in seeing Ockham's philosophic no m inalism
as a main source of modem individualism.
3. Karl Mane, "Zur Judenfrage" in /(Qr( Marx Friedrich Engels Gtsamtausgabr, Abt. I, '29
vols. (Berlin, 1975- 90), 2:157- 58.
4. Leo Strauss, Natur11I Right and History (Chicago, 1953), 248.
5:. The best. mod.e~ account of th~ c~nciliar movenwnl as a wholr i:< C . l\ll><'ri~o. Clrif!'a
conolral'!'. ldentrtd t s1gnificato dd ~nc1l111rismo (Brescia, 1981 ). For a lt'Vicw o f curn-nt probll'mc;
see E. .Meuthen, Das Bas/tr Konzrl als Furscl11mJl5pro/llt'm drr r11roplli<r11t'll ( ;,.,.,·liii·lttr. R/r,•ini.<c:h·
Wt'Stfol1sclrr Akndnm1r dt'r W1S!<r11schn[lm v.,,t,,,xr c;174 (( )pladi•n. 1'IH'>}
G ERSON. C ONCIU ARISM, C ORPORATISM, AND INDIVIDUALISM 209
often regard Gerson as a typical exponent of this viewpoint. But scholars
interested in other aspects of late medieval political thought have recently
presented Gerson as a pioneer in the creation of an individualist theory of
natural rights.6
Both points of view seem defensible. Certainly, conciliar thinkers often
argued from the holistic concept of the church as a mystical body, adapting
the scriptural doctrine to their own purposes by reformulating it in juridi-
cal or political language. A canonist like Zabarella would use the term
corpus mysticum to describe, not only the universal church, but also lesser
corporative associations within the church like that of bishop-and-chapter.
Then he would apply the technical rules governing the affairs of such
lesser corporations to explicate the constitutional structure of the whole
church. Among recent authors, Eric Meuthen has observed that, with-
out this background of corporatism, late medieval conciliarisrn would bt>
"unthinkable"; Antony Black noted that "ecclesiastical holism remained
a standard weapon in the conciliarist armoury"; and Joseph Wohlmuth
specifically contrasted conciliar corporatism with modem individualism.
He maintained that, because of its corporatist foundation, the conciliar
movement never developed "an ecclesial individual-right that could yield
a catalogue of basic rights in the modem sense."7
Moreover, among the conciliarists, Gerson is noteworthy for his frl·-
quent, fervid appeals to the holistic doctrine of the mystical body. In the•
words of John Morrall, this was "the theme around which all Gerson-
ian ecclesiology rotates." Andre Combes especially emphasized Gerson's
use of the Pauline metaphor in his Propositio facta coram Anglicis. Thew
Gerson declared, "No one doubts that the church flees and abhors its
own division since it is a mystical body according to the reasoning of tlw
Apostle in Ephesians 4 and l Corinthians 12 and Romans 12...." Gerson
illso spoke in this address of the "seed of the Holy Spirit having power to
6. Standard w orks on Gerson are J. B. Mo rrall, Gerson and lht Grl'At Schism (MancMh'r.
1%0); G. H . M. Posthumus Meyjes, Jtan GtrSOn. zijn kerkpolilik en ecclrsiol~rt {'s-Cr.wmh" K"·
1963); A. Combes, la thiologie mystique dt Gerson, 2 vols. (Rome, 1963- 64).
7. E. Ml.'u then, Das Basler Konzil., 19. A. Black, "Society and the Individual from tllr
Middle Ages lo Rousseau: Philosophy, Jurisprudence and Constitutional Thcory.h tfot"'l( 11/
/'ofilicnl Thouxht I (1980): H6-66 at 156. J. Wohlmulh, " Konzili.aris.mus und Vrrfo,.,.inK dn
Kircht'," Corrcifium 19 (1 983): 522-526 at 524, " ... kann nichl gesagl werdl'n , dit• 1<.0111.ill•n•
llt•wc>gung h<1be ein ckklesialeo; lndividualn'Chl entwickelt, das i.m heutigt' n Sinn rinc•n f("t"
l" K von Crundrcchtl'n ergeben ko nntr n ."' In my own t>arly wo rk, Fmmdatian.<11/ lhf <·,,,,, 111111
f11nm1 (Camhridgc. 1955), I al"'' 1'mptw1i1t'li tht• rnrporalist foundation11 of c:undliM llwmy
with particular n •ferNll't' h> 7.111h1m •lla arnl 1·.1rl11•r .-.m11ni11tic lt'arning11. For a Olt>n' n-o-nt 111"
··11-;..,inn S.'<' my Rdi,'(imr. I 11111. 11111/ lft( <: 11111•1/r 11{ <·1111stit11lional Tlmuxht (<:amhrMKr, 1'1111) II.
K""" gr1wr11I !ih11ly 011 mr1llrv11l n•1111 •r.,tl11n n •nn•pl-" 111 I'. Mld11u11.l ~Q11antln , llm1.-r~rl1I•
r 'I'""""'''"' 1111 1r111111.-111f11I 111111m11111111l1lflr 111111• It 1111•11<'11 II,'(•" lalin (1'1ul", 1'17111
210 THE IDEA OF NATURAL RJCHTS
form and reform the whole body of the church," of the "life-giving power
by which the mystical body of the church can unify and unite itself," of the
"life giving blood diffused through the whole body of the church." 8 One
could hardly imagine more explicit organic imagery.
Yet a convincing case can also be made for Gerson as an early pro-
ponent of a doctrine of individual rights. Richard Tuck found the first
"fully-fledged" rights theory in his work. Michel Villey referred to Gerson
as a significant influence on later rights theorists. Reinhold Schwarz, again
referring to subjective rights, wrote that the concept of ius that appeared
only obscurely in Ockham was first defined by Gerson. Quentin Skinner,
in his book on Parly mC'ffrm ppJitical thnnght, ~lsn rlisc11ssPci thE> contri-
bution of ~1M111 Lu Lhc dl!\.du!Jlllt!lll uf W1::::.l1::w ti~l 1~ lht:ories.':
These modem views are based mainly on two very similar defmitions
of the word ius that Gerson presented in the treatises De vita spirituali
animae (1402) and De potestate ecdesiastica (1416). In the first work, he wrote,
/us is an immediate faculty or power pertaining to anyone according to
the dictate of right reason.10
The later definition declared,
/us is an immediate faculty or power pertaining to anyone according to
the dictate of primal justice. . . .
Lex is a rule in conformity with right reason.11
Gerson's language is not new in itself. As 1 noted in an earlier chapter,
we can find examples of ius naturale defined as a "faculty," "power," or
"force" in twelfth-century canonistic writings. We may also be reminded
of Ockham's definition of ius poli as "a power conformed to right reason."
And the definition of law as a dictate of reason is standard Thomist doc-
trine. Gerson was familiar with the teachings of Ockham and Aquinas;
and, although he was not a professional canonist, he was interested in and
8. Morrall, Gnscn, 67. Combes, Thiologit mystiq1a, 204-5. For the texts o f Gerson see
P. Glorieux ed., /tan Cason: OtuVTts compWts, 10 vols. (Paris, 1960- 73), 6: 126- 127, 131.
9. R. Tuck, Natllral Rights Tht0rits. Their Origin and !Xwlopmmt (Cambridge, 1979), 25;
M. Valley, lAJomualion th 111 pmstt jllridiqut modtmt, 4th ed. (Paris, 1975), 267, 365; R. Schwarz,
#Circa naturam iuris subiectivi,n Ptriodica dt re morali canoniCJl lilllrgial 69 (1980): 191- 200 at
191-2; Q . Skinner, TM Foundations ofModern PolitU:al Thollght, 2 vols. (Cambridge, 1978), 2: 117.
10. Otirore:s, 3: 141, jus est facultas seu potestas propinqua conveniens alicui secundum
dictamen rectae rationis.ff Gerson repeated this definition almost exactly in his DtfiniliontS
ltrminOTMm tht0/ogiae moralis, Otuures, 9: 134, "Jus est facultas seu potestas rompetens alicui
secundum dictamen rectae rationis."
11. Otuvrts, 6: 242, "Jus est facultas seu potestas propinqua c:onvc·nil'n!I illicui !ICCundum
dictamen primae ju!ltitiae. Porro dictamt'tl hoc lex dicilur, 1111111 lrx not WK11l11 n1nformilillem
habens ad dictam~ rt.'Clile r11tlonl~. "
GERSON . CONOUARISM, CORPORATISM, AN D INDIVIDUALISM 211
knowledgeable about canon Jaw.12 His originality consists in his ways of
handling the earlier traditions of thought and applying them to the new
problems of his own day.
Gerson did not apparently intend to convey any difference of doc-
trine by the slight change of wording in his definition of ius. Rather, he
explained that, in God, "right reason" and "primal justice" were synony-
mous. The important point for us is that Gerson gave a clearly subjective
definition of ius.'3 and also presented a distinction between lex and ius that
we more commonly associate with seventeenth-century natural rights
theorists. For Gerson lex was objective law; ius was a subjective power or
right inhering in individual persons.
Gerson, then, seems to have defended simultaneously a holistic con-
cept of the church and an individualistic doctrine of subjective rights. This
is the problem we have to explore further. The first, fundamental point
to be made in addressing it is that, if this tension in Gerson's thought pre-
sents a paradox, it is not a paradox peculiar to Gerson. Rather it inhered
in the whole Judeo-Christian religious tradition that he inherited. In his
Propositio fnctn coram Anglicis Gerson introduced his holistic imagery of the
mystical body by commenting on Hosea 1.11, "The children of Judah and
the children of Israel shall be gathered together." The Old Testament is
indeed the story of a community, a people of God; but the God of the Old
Testament spoke often to specific persons and addressed his word to his
people through particular chosen individuals. The Bible is full of free in-
dividuals responding (or not responding) to God's word. What could b<.•
more individualistic than an Old Testament prophet? In the New Testa-
ment too Jesus touched the hearts of individual persons and summoned
individuals to follow him, but he also called on Israel to perfect a new
community of holiness. The specific epistles of Paul that Gerson cited
when he used the imagery of the mystical body are also full of moral ex-
hortation directed, sometimes by name, to individual members of thl'
nascent Christian communities that Paul addressed. Paul especially em-
phasized the ultimate responsibility of each individual for his own eternal
destiny. In Romans we read, not only, "We are one body in Christ," but also,
12. Cerson's inte rest in canon law is d iscussed in L. B. Pascoe, /t an Gtrson: f'rincil'lr:< ••I
Ch11rch Rtfornr (Leiden, 1973) and F. Oakley "Gerson and d ' Ailly: an Admo n itio n," St1t•1·11l11m
40 (1965): 74-83.
13. G!'rson was not, ho wevl'r, who lly consistent in using the word i11s in thr ,.uhj1't·tlv1·
sense ht> had defined . Some times lhl' word S<'<'ms lo have rathl'r lhl' nh jl'Ciiv1• 1m•.mit1K 111
id qrtnd i11M11m rst that w1• fir11I in lllpi.m .tml A1111inils . St'\• l'.g., ( °;('r.'l<m ·" 1lt•finiti1111 o f /"
ris.lictic•, "d k itur ju ri!ldklio "1n1ll11• 111•11 poh'sla!> pmpinqu;i tlin •ndi vt•I '"'nll'nlinn1li Ju•
in altt•mm t•tiilm invilum'" (< lrrlf!rr... '' 211>) A1111i11 ( ;,.r,.on n•f1•rn•d lo lht' pn'<"l'f'l!t of lhl'
I >.·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.-.
212 THE IDEA OF NATURAL RIGHTS
"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 individual-
istic. It is usually a question of degree, of deciding which value is con-
sidered "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 wel-
fare 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 em-
phasis 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 canon-
ists 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 corpo-
rate 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 at-
tached 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 commu-
nity. The members of such a community could display a very strong sense
14. Romans, 12.5, 14.12.
15. J. LeCoff. La naissana du PurKaloirt (Pari,., IQlll); :t.ao11wlln, S11pt"r '/11i11q11,. /if.ris dr-
CTttalium commmtnriQ (VmlCC', lt102), nil X5.l\. \ 7; ( :1•r.ion, I >r l!rn•l••.11111 11111sllnr, In t lrm•r•·s.
:l: 291.
GERSON. CONCIUARISM, CORPORATISM, AND INDIVIDUALISM 213
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 con-
gregate 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 corpora-
tions, 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 me-
dieval life-the obsessive concern of many persons and groups to maintain
their "rights and liberties"-but also the pervasive influence of Chri!l-
tian attitudes to individual and community at every level of thought and
action.20
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 indi-
vidual 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<."rsecutent l' une l' autre ... car naturelment tout chose deffent son droyt el reboule fail p01r
I.lit, violence par violence; vim vi repellere licet." .
19. For a gene ral account of the whole problem and discussion o f the earhl'r lilNo1tu1 ..
w e A. Black, Guilds nnd Civil St:1ciely in European Political Thought from tht Th1t"lftl1 Cmlury '"
thl' Present (Ithaca , NY. 1984).
20. Modern di!ICussion~ on indlvidu.1ls and community in the Middl.- Agt•M h1w1• olt..n
fonis.wd on Aquina!I. ~ M. ,t.• Wulr. "" I .'lmtlvt.lu 1•1 It• Kroupe dan~ la M"'t>la!!liqm• 1111 XIII"
"il'dt•, Rn•ur nn>!«·c•ln~tiqur 1lr 11l1ll11"''l'l11r 21 ( 111211): J41 ·-J r>7; F- I A"wi11, "l >rx1U1k Tt•nJrnd..,.
ff
in Mo-<lil•vnl l'11litk.1I Th1111Khl."" """"" "' l'1•llllnll Sdr111 r Rt1•ir1C1 :l2 ( 111~): R49 7t>. I T t\11d1
lli.tllll, " f\ ·11u1111iMh•· t ;i,...,111 y 1111 thr 1'1 hu 11'1" "' t lw l'n•••mhwnn• of " l "n11m11111 <;, ,. ..1 :·
Mrofotrr~rl .'ilwl1.-• •; ( 1114 I) I JI n'\ Ao1111t111• 1ho1111~11lohril 1..•1w....11 n "'unity nl unl,.1 " (ft• In""
 214 THE IDEA OF NATIJRAL RIGHiS
This background may help us to understand the apparent paradox
from which we set out, the combination of corporatist and individualist
language in Gerson's work. There is, after all, nothing so unusual about it.
But we still have a further problem to consider. Why did Gerson come to be
so concerned about individual rights in the first place? Judeo-Christian
teaching has indeed always recognized the value of individual persons
but this recognition has not always Jed on to a doctrine of subjective in-
dividual rights. Robert Cover has recently pointed out, for instance, that
Judaic law has always been able to uphold the worth and dignity of human
personality without asserting a doctrine of human rights by emphasiz-
ing the alternative concept of mitzvah, duty or precept.21 There are aspects
of Christian teaching too that may seem hostile to any growth of rights the-
ories. Christian ethics seem to demand the abandonment of rights rather
than their assertion. " If a man strike you on one cheek, turn to him the
other." The ethos of all the great medieval religious orders was based on
abnegation of rights by the members. (Francis of Assisi, although he was
such a strikingly original individual himself, once said that a perfectly obe-
dient friar should be like a corpse, moved only at the will of a superior.)
Moreover, Christian fervor could easily lead to the suppression of rights-
or what we should consider rights-where religious dissidents were con-
cerned. In the conciliar period, one has only to remember Hus at Con-
stance. Even a thinker like Gerson, who wrote eloquently on "evangelical
liberty," could not conceive of anything like a modern right to religious
freedom.
It is not surprising then that one finds considerable disagreement
among modem scholars who have tried to relate the Judea-Christian re-
ligious tradition to the growth of Western rights theories. Sometimes the
relationship is seen as one of opposition. One school of thought holds
that all modem rights theories are rooted in the "atheistic" philosophy of
Hobbes and hence regards them as incompatible with the whole preceding
organized group) and a "unity by composition or connection" (as in an actual o rganic body).
On the church as a mystical body he noted that this description referred to "a l't'semblance . . .
not an exact correspondence or identity" (Summa tlrtol. 3 .8 .1 ad 3). Aquinas' d istinctio n is dis-
cussed with specific reference to conciliar thought by A. Black, Council and Commune. Tire
Conciliar Mourment and tire Fifteenth-Century Heritage (London, 1979), 138-143. In a diffen-nt
area, much recent work has been concerned with the new religious individualism or per-
sonalism of the twelfth century and its relationship to the corporative movements of that
age. For a discussio n see the papers of C. W. Bynum, " Did the Twelfth Century Discover
the Jndividualr and C. Morris, " Individualism in Twelfth-Century Religion. Some Furthl'r
Reflections," Journal of Ecclesiastical History 31 (1980): 1- 17, 195- 206. For an t'XC<'llt.'llt o vcrvit-w
see A. Black, "The lndi\•idual and Society" in T/11• CnmhridKt' lti51or_v of Mrolir1wl 1'0 /it1rnl
Thought. ed. J. H . Rum!I (CambridgP, 19811}. ~-<>Cln.
21 . R. Cover. "'Obligalion: A )t•wi~h furi~prudt•1wr of Son11l 1 lrtl,•1." fmir 11nl of I •111•n11ol l«-
lixiun 5 ( I 9R7): 65 - 74.
GF.RSON. CONCIUARISM, CORPORATISM, AND INOIVIDUAUSM 215
t "hristian tradition.22 Michel Villey sees rights theories as derived from
<"hristian morality, but as an aberration, a deformed variety of Christian
thought (idees chrniennes mais deformees).n But another who!~ ~hool of
1hinkers, represented most eloquently perhaps by Jacques Mantam, sees a
•tuctrine of individual rights as always implicit in the Christian emphasis
• m the dignity of human personality.
If this last point of view is to be defended, the key word must surely be
.. implicit." Perhaps there was always a possibility that Christian teaching
, 111 the inherent value of each individual person could be reformulated as a
, loctrine of subjective natural rights. But, certainly, through most of Chris-
1ian history, the possibility was not realized. The idea seems foreign to the
1radition of Eastern Orthodoxy, for instance. There was no Creek Gerson
or Grotius or Locke. In the medieval West, from the twelfth century to the
fifteenth, we can find writers who used early Christian texts to support an
1·rnerging doctrine of natural rights; but their understanding (or misun-
derstanding) of the texts was a new one, shaped by the circumstances of
rhc>ir own age. Let us go back for a moment to the writings of Paul on the
dlurch as the body of Christ. Paul described the unity of the church in two
ways. Sometimes he stressed differentiation of function. "The body is not
nne member but many-the eye cannot say to the hand, 'I do not need
your help'."24 Jn other places Paul emphasized the equality of all Chris-
tians in their freedom from the Old Law and unity with Christ, "There
1s neither Jew nor Creek, neither slave nor freeman . . . ." All Christians
were free "with the freedom wherewith Christ has made us free.'-15 Pre-
sumably in neither case was Paul intending to propose anything like a
modem doctrine of rights. But Gerson, writing in a different historical con-
h'xt, assumed that the Pauline texts provided support for his own rights
theories. The point is that the emergence of a theory of natural rights _is
,, contingent phenomenon. It does not arise in all cultures nor even m
.111 Christian cultures. The task of a historian working in this area is to
make the growth of such theories intelligible by explaining the conting<>nl
circumstances in which they could emerge and survive. Modern rights
dodrines can give rise to all kinds of moral and philosophical problems.
U11t the questions a historian has to answer are rather d ifferent on('s.
22. In America this view has been emphasized mainly in the work of ~c-holar~ infltH'f\C"l'<I
hy 1.N> Straus.~. $('(> e .g., W. ik'ms in This World 6 (198.1): 98, "(T)he very idt'a of nahm1I right~
"inrnmpatibl<' wilh Chri~ti;m doctrinr.... " Bt'm~· argument wa~ developed fu.rth<-r.in h ll'
111 />r(rr1.« of /i1"'ml [)rm(l("rary (Chicago, 111144). It w.1~ cont~trd by H . Jaffa. Att1t'nran < 011M'r
r'fllism a11d lht' Amrrira11 f m111di11,!( (l>urhnm, N< ·, 111144)
2:\. M . Vil11•y, " I .1 g1•nl'M• tl111lmlt •11hjrr lll o+.1•1 ( :uil11111mt• d 'C lc"cO'm," Arfhi1~ dr 1ol1il1""'
1•l11r rlu olmil 9 ( 1llM)· W 127 "t '17
14 I <·orh1lhl""' 11 14, 71
I'• l ;"1"11""~ I } It 'I I
 216 THE [OEA OF NATURAL RIGHTS
He will want to know what contexts, what contingent developments
made the assertion of rights theories seem necessary or practicable or use-
ful in certain times and places (and not in others). In earlier chapters I
have discussed the twelfth-century context of juridical humanism and the
fourteenth-century context of Franciscan poverty disputes. But why was
Gerson so concerned with individual rights? What context can we define
that would make his rights theories intelligible?
The modem authors who have discussed these questions have sug-
gested two kinds of answers. For Michel Villey the context of late medieval
nominalism was all-important. Villey regarded William of Ockham as the
radical innovator who first "deformed" Christian teaching into a theory of
individual rights; and he thought that Gerson was important in the history
of rights theories mainly as a transmitter of Ockhamist doctrine. There are
two difficulties in this explanation. As I have already argued, Ockham's
rights theories were not really dependent on his nominalist philosophy.
And Gerson was not a nominalist so far as the theory of universals was
concerned. Gerson was an eclectic in his philosophy. One can find ex-
amples of Ockhamist influence in his work but also frequent use of neo-
Platonic and Aristotelian ideas. 26 Gerson raised the problem of universals
in a specifically ecclesiological context when he asked whether potestas ec-
clesUistica was a "real universal"; and he gave an answer entirely in accord
with Aristotelian or Thomist moderate realism. "All priests share in the
priesthood, all bishops in the episcopate...."As Morrall observed, "there
is no trace of Ockharnism in Gerson's approach here."21
Richard Tuck presented a different approach to Gerson's rights theo-
ries. He emphasized, not Gerson's metaphysics, but rather his moral
theology. This seems a more promising line of argument; but Tuck made
nc-n~cuse of his own suggestion by presenting an impossible account
of Gerson's theological ideas. In Tuck's view, Gerson saw ius as an active
power involving a sort of "sovereignty" in relation to the object of the ius.
Further, he argued, in Gerson's thought, such rights were derived from the
26. On Gerson's neo-Platonism see A. Combes, /tan Gnson, commmlaleur dionysie11 (Paris,
1940).
27. Dt poleslale ecclesi11slic11, CXuvres 6: 222-3, "Si vero vellet aliquis curiosus inquirere
qualiter habet fie.r i talis abstTactio potestatis ecdesiasticae, remittimus ad metaphysicam . . .
Omnes enim sacerdotes conveniunt in sacerdotio, omnes episcopi in episropatu... _,,(Cf.
Morrall, Gerson, 104). Gerson also declined to a.nswer another question raised by nominalist
theology, whether will or reason was prior in God. CXuvrrs, 3: 141, " Videtur igitur positio esse
magis catholica et expeclita si dicamus neutrum esse prius alte.ro." In other contexts Gerson
wrote extensively about the ,,affective" and "intellective# approaches to religious life. Often
Gerson emphasized will, the affective approach; but, in his di5CUSSion!I on i11s, reason 9ttm~
especially important. E.g., immediately after the definition of ius in Dr 1•il1111piritu11li 1111irr1ar, he
wrote, "ltaque totalis <'I finali!I resolulin malt•ri.w """'' w 11tl tfkl11nwn rt'l"l•U' r'11ioni,. lt'fml-
natur" (~uvres, :\:141).
GERSON. CONCILIARISM, CORPORATISM, ANO INOIVIDUAUSM 217
intrinsic nature of the relationship between God's sovereignty and man's
sovereignty. Specifically, according to Tuck, Gerson saw the relationship
between God and man "as a reciprocal one between equals." It is hard to
imagine any thought that was further from Gerson's mind. Rather, he in-
sisted that every gift of God to man was made, not ex debito, but from
God's unconstrained freedom and generosity.28 Tuck imagined that, for
Gerson, the relationship between God and man "generated rights on bot'1
sides." But Gerson wrote that there could be no "quid pro quo" in man's
dealings with God. Tuck even argued that "men have rights against God
as a result of God's promise to them" and quoted Gerson's phrase, "the
humble have been given a right to all things." But Gerson treated this right
of the humble, which he elsewhere called a i11s evangelicum or ius charitntis,
as a gift from God, not a right against God. In the immediately preced-
ing passage Gerson wrote of man's need to know his own "nothingness"
before God.29
TUCK ON GERSON
Although Tuck's account of Gerson's theology is not persuasive, his
work requires some further consideration before we can explore the work
of the French conciliarist in more detail. Among modem writers, Tuck is
the one who has laid most emphasis on Gerson's innovating role in dis-
cussions concerning natural rights. Tuck even wrote that Gerson "really
invented the theory." Moreover, what is at stake here is not just a dispute
flbout theological technicalities but a whole way of placing Gerson in the
developing tradition of thought about subjective rights.
Tuck's understanding of Gerson's moral theology was apparently in-
fluenced by a desire to relate Gerson's doctrines to a modem debate about
the nature of "active" and "passive" rights. Tuck explained that, "To havf:'
a passive right is to have a right to be given or allowed something by
someone else, while to have an active right is to have the right to do soml'·
thing oneself." He also noted that the holder of an active right could tw
said to exercise a kind of "sovereignty" over the relevant part of his moral
world.xi Tuck suggested that rights theories before Gerson were gent'rally
concerned with passive rights. Gerson's great contribution was to providt•
211 Tuck Natural Ri111tts JO. Gerson, & 11v1rs. 3: 148, " ... non l'>< dl'bito r igori!'I !<4~1 <'k Ill•
,.,,1Ji~sima <'; dignilnlis.~im; rond~<'n!iionr .11.11 donal ionl' cre11tori11 .. . ip~· umnium IMh.-1
.,.,lus plrnarium dominium <'I r!l."4'oli.1lt• ..
2'1. Nat11rnl Ri,11/its, JO. <:C-r~on, ( >.-111•r,..... '.\. 147, " Et ... umnia qmw dilmus <'itlc-rn ..1111 tlr
~110 .•• ili'I proprir clnrr nrtJlllmu• •tuhl I''" •tm• . •· <>rrwrr.o, ~: 17. " I In< 11110 mu.lo 1tnh 1111
mli rmit,lli~ proprl.w, immo 11lhllrlh1tl• 11111.111 '"· 1td c "•:nilit•m·m pr;u'lff•nliiw 1Uvl11lt..tl" Im
1111•11JM<' IH•rr-r... It ·•
ICI N r'1urn/ ~1.11/rl•. I•
 218 THE IDEA OF NATURAL RIG HTS
a theological rationale for an active rights theory, which Tuck sees as para-
digmatic for the modern concept of a right. Hence, in discussing later
developments of thought, Tuck referred to active rights theories as "Ger-
sonian" and passive rights theories as "anti-Gersonian."
But this argument is not really sustainable. It was a great merit of
Tuck's work that he called attention to the jurisprudence of the twelfth and
thirteenth centuries as a possible source of later rights theories; but he mis-
understood the relevant texts and so produced only a confused account of
the subsequent development. For Tuck, all the rights envisaged by the ju-
rists were claim rights or passive rights. The medieval church, he points
out, was much concerned with the claims of the needy, so the canonists
naturally developed a theory of rights as claims. But, as we saw in an ear-
lier discussion, the right of the poor in canon law was not merely passive;
in case of necessity they had an active right to take what they needed. The
canonists also recognized many other active rights. The ius episcopale, for
instance, the complex of rights exercised by a bishop, included a right of
preaching (ius praedicandi), a right of administering (ius administrandi), a
right of judging (ius iudicandi). Canon law was full of active rights; it is
misleading to suggest otherwise.
It is equally misleading to see Gerson as hostile to the idea of pas-
sive rights. In discussing the rights of a parish priest he mentioned in
one sentence a right of preaching (ius praedicandi) and a right of receiv-
ing tithes (ius insuper . .. decimas recipiendi). The first is an active right
according to Tuck's definition, the second a passive right. Elsewhere,
Gerson mentioned other rights of recipience; it never occurred to him
that a right to receive something or to claim something was not a real
right.31
Tuck is able to sustain his argument only by a persistent equivocation
in the use of terms. When he wants to argue for the absence of active rights
in the jurists every claim right becomes a passive right; but when he wants
to argue for an absence of passive rights in Gerson and his followers, every
claim right that can be asserted in court becomes an active right because it
is something that "its possessor could control himself.''32 Tuck discusses,
31. The two classes or rights correspond roughly to the medieval categories, ius in re, and
ius ad rem, developed by the canonists from ca. 1200 onward. Gerson's De conlr11ctib115 (Oeu-
vr~, 9: 385-421) includes much discussion of claim rights.
32. At the outset in Naturlll Rights, 5, Tuck distinguishes sharply between iris as meaning
dominium, an active right with nimplications of control and mastery," and ius as "simply a
claim on other people, u a passive right. But at ibid., 15, where he discusses the work of lhe
early glossators, dominium becomes a passive right because it was "a claim to total control
against all the world." Then at ibid., 17 dominium lum.<1 back into an aclivc right again; but
here claim rights are also treated "s ac:tivc righl!'I. It is hard h> tlis..·••m .my t•olwn'flt argumt>nl
running through thl"""' page'!I.
GERSON. CONCIUARlSM, CORPORATISM, AND lNDIVIDUAUS.~ 219
for instance an argument of Sylvester Mazzolini da Prierio, a theologian of
the early sixteenth century, who maintained that every iu_s i~plied a ~ind
of dominium or mastery since a right-holder could assert his nght by bnng-
i ng suit. Tuck sees this as an argument for active rights against the passive
rights theory of the jurists. But in fact Sylvester was arguing here specifi-
cally for passive rights, as Tuck originally defined the term-namely the
right of a son to receive sustenance from his father and the right of par-
ishioners to receive sacraments from their priests.33 And, of course, when
lhe jurists discussed such claim rights, they too envisaged their asser-
tion though legal action. For the canonists, to have a right meant typic~lly
to have an actio, a capacity to bring suit. Discussing the act of walking
across another's field, Johannes Teutonicus wrote in the Ordinary Gloss
10 the Decretunr, "It is just by divine law but it is not a right, that is, the
lnw does not give a civil action." 34 If a claim that can be asserted in court is
;m active right the canonists were among the foremost protagonists of such
rights.
To dwell on these technical points might seem mere quibbling, except
that Tuck goes on to present the history of late medieval rights theories as
,, contest between "Gersonians," who insisted that all rights were active,
and others who defended a theory of passive rights. His account has been
widely accepted as an accurate presentation of late medieval thought on
rights, and seldom criticized. But really no such argument as Tuck en-
visaged existed in the medieval sources. Everyone who discussed these
matters, including those who adopted Gerson's definition of ius, acknowl-
l'dged the existence of both active and passive rights, rights of action and
rights of recipience.35 The texts that Tuck adduces do not support the con-
33. Natural Rights, 5. Tuck emphasizes a late medieval dispute between scho lars whu
wanted to equate ius with dominiilm and others who insisted on a distinction betwttn lh1•
two terms. He sees the former group as protagonists of an active rights theory. But the dis·
pule, a le ft-over relic of the Franciscan poverty controversy, really had nothing to do with
.1etive and passive rights as Tuck uses the terms. See below, 243- 45.
34. Gloss ad Dist. l c.1.
J5. Fernando Perez, for instance, wrote (1557) Hlus prout est facultas moralis . . . ad utm·
.tum re aliqua l'tl ad obtintndam illam, quo pacto solemus cticere aliquam habere ius in w wl
.1d rt'm, sic definitur: Est potestas seu moralis facultas legitima ad aliquid. lta Gerson'" (cni·
phasis added). (Cited by Schwarz, HCirca naturam iuris subiectivi.•H 192.) Q. Skimwr nlritt
KdVl' a distorted ac:count of Cerson's teaching by attributing to h im too narrow a dt'flnitiu11
11
f ius. f uundC1/i011s, 2:117, ~Gerson .. . equates the possession of a right or ius over RnyrhlnK
with thl' power or pottslas to di."J'OS<' of it frt'E'ly." But this is Skinl\t•r'i< d<'flnltion, 1101
<:t·rson':o;. Fc>r Gerson iu.< was a bn>ad c:l\ll'ROT}' which could includ<' a right of do111ini11111 (with
till' row<'r to ~ti.~poS<' of !!om1•thlng fn.,·lyl !lul whkh 011~1 indud1•d v.uioui'l olht•r rt.14ht11, t' K··
lht' iu< l'rardirn111l1. Skinm•r o·onlhlllt'•I. "'So II follow" tl1o11 no nih•r mny ht' Mi.t tn h11vr Ally
riKhl" ov••r ,1 n•mmonw<'nlth. . ." 11111 I ;..t•on 111011! •'t'rl11l11ly ht'ltl thnl n1l<'r" 11'1<1 rlKhl11 I lo•
wmh" lor ln"l"n.-.• lh;1l I lAvhl oll•I 111111 ...., hi• 111• hi 1r,111111 whrn ht• rommlllrol lhr Aln nl 1\11111
lt•oy S.••• !>l'low 11 7r;
 220 THE IDEA OF NATURAL RIGHTS
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 benevo-
lence, 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 doc-
trines. 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,n<'. 1759), I : 15 It>. Mnhn" <it•fint'<I j11.<
here as a ufacultas aliquid fadrndi ~iv1• ohtln<'mli. . .. "
38. Na/urn/ Ri!{ht~. :l<I.
GERSON. CONCIUARISM, CORPORATISM, AND INDIVIDUALISM 221
definition of ius was included in his major conciliar treatise, the De potestate
ecclesiastica as well as in his earHer theological work. One might go further
and suggest that the context of medieval conciliarism is the truly signifi-
cant one, the context that makes Gerson's theory of rights intelligible. This
is the position that I want to argue for the rest of this chapter.
The objectives of the conciliar movement, as they were eventu.ally
formulated at the Council of Constance were threefold-to end the schism,
to reform the church in head and members, and to defend the Catholic
faith (specifically against the errors of Wyclif and Hus). These were the
areas in which the decree Haec sancta, promulgated at the Council of Con-
stance, claimed supreme authority for a general council. Gerson pu~sued
these aims throughout his public life. His distinctive doctrine of individual
rights grew out of his strivings to achieve them. .
Let us begin with the first objective, since Gerson's doctnne concern-
ing the supremacy of a council over the contending popes of the schism
may seem the best example of his corporatist, holistic view of the church.
From about 1408, Ger'30n became convinced that the only way to end the
schism was the via concilii, "the way of a council"; and his tum to strict
conciliarism was indeed signalled by the rich display of the imagery of the
mystical body in his address to the English envoys of that _year. Yet, _a s we
have noticed, Gerson's subjective doctrine of rights was included m the
conciliar treatise De potestateecclesiastica, composed several years after this
address (and after the enactment of Haec sancta at Constance). The place-
ment of the definition of ius in this work may seem odd at first glance-it is
presented in Consideratio 13 as a sort of appendix tacked on at the en~ of
the argument. There also seems to be a kind of disjunction in the full title
of the treatise, Tractatus de potestate ecclesiastica et de origine juris et legum "A
Treatise on Ecclesiastical Power and on the Origin of Right and of Laws." It
appears at first as though two unconnected treatises have been transcribed
one after the other and given a common title. This difficulty is resolved
when we notice that Consideratio 12, immediately preceding the formal
dt>finition o f ius, is devoted entirely to a discussion of iura-the rights of
popes, kings, bishops and lesser prelates in the conduct of church affai':5.
After all this, it was entirely appropriate that Gerson should explam
his own understanding of the term ius (and cognate terms like iustitia, lex,
il11111i11i11m) in the concluding Consideratio 13.
But, s till, why the emphasis on individual iura at all in a treatis<'
•ll'votf><l t'Ssentially to defending th<' corporate authority of a general coun-
ci I? 'lhE> answer lies partly in Ct•rstm's n'liance on an earlier body oft'<>
dt•siological doctrine that had ~rown up in his alma mater, .the l!nivt>rsi_ty
111 1'<1ris. Wht>n C.<'rson tliKt·u"Mt'tl the- rul" uf hh~ho~ and pm.•sts m C11,.s11I
,.,.11/io 12 of thP I >r 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
 222 THE IDEA OF NATURAL RIG HTS
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 individ-
ual 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 au-
thority 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 pro-
vided 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~
H
siologiques de la querelle entre mendiants et s«ulien dans l<t !le('(mdl' mollie du XIII<' 11il'c"lt'
et le debut du XNe," ArchivtS d'histoirt dorlrin11/ut li1tlr11i" d11 m".' lm llJl' 27 (I %1)· 15 IS I.
41. Hervaeull Natalis, Dr i11ri~icli1111r, rd. I _ ltllcll (Munkh. l'J'i'I), 2H, .i .c
GERSON. CONCIUARISM, CORPORATISM, AND INDIVIDUALISM 223
of this kind. Gerson was implicitly responding to them when he declared
in the De potestate that the authority of a general council would be annulled
if the supreme pontiff sought to usurp for himself all the rights of inferior
prelates.•2 ••
Gerson would probably in any case have appealed to the familiar
episcopalist arguments in formulating his own conciliar doctrine; but, as
it happened, the whole ancient quarrel between mendicants and seculars
had erupted once again at the University of Paris just a few years before
the Council of Constance.43 It was in the context of this earlier dispute that
Gerson propounded the doctrine concerning the rights of inferior prelates
which he would later deploy as a part of his conciliar theory.
Jn 1408 a Franciscan friar, Jean de Gorrell, reasserted the mendicant
daims against the secular clergy, and Gerson formulated a reply on behalf
of the university's faculty of theology (January 1409}. It declared that par-
ish priests (curati) were originally instituted by Christ and that by virtue
of their state they held a right of preaching, a right of hearing confessions,
.i right of administering sacraments, a right of giving burial, a right of
receiving tithes.44 But the friars appealed to the pope and Alexander V ~a
Franciscan himself) rejected the university's positions in the bull Regnans m
cxcelsis (October 1409). Gerson and the theological faculty again protested.
In an implied rebuke to the pope they declared that an act of theft did not
consist only in taking gold and silver but also in usurping the rights and
dignities of others.4s The emphasis on rights was stiJl stronger in a sermon
that Gerson preached in French at about the same time. Here he used the
vernacular word droit over and over again in its modem sense of a sub-
jt·ctive right. Gerson spoke of the priest's "droit de preschier," "droit de
confessions ouyr," "droyt de recevoir dismes." He even offered French ver-
sions of his earlier Latin definition of ius as a faculty or power, referring to
;\priest's "droit ou faculte" and to "cette puissance ou ce droit."46
We can now tum back to the use of such concepts in Gerson's mature
conciliar theory. Consideratio 12 of the De potestate ecclesiasticn introduced
the question of rights in the church with a discussion of the pope's jurn tcr-
rr·11i simul et coelestis imperii ("rights of earthly and heavenly empire"), "
phrase from Gratian's Deere/um that had attracted extensive canonistk
42. Orm•".~· 6: u Auctoritas itaque nulla erit si solus s ummus pontifox omni;, v1•1il in·
'"'"'rum l'Cdl'siasticorum usurparc inslitutio n<'S, jura, status, gradus ~I orficia.- Elst•wlwn•
c ;,•rsun n -spondeJ dir<'('tly to tilt' .1rgum1•nl Jh.11 infrrior pn>lat~ WPl't' like ..bailiffs.. (C >t-1w1r•
I?'')
41 f >.·ur•rr.;, to:.1 0-11priwi1l1'll11 ··,111.••11·1 ·· on thi~ ,li•pult'.
'14 ( lt-111•r1-s. 10·1.l .
4<; ""'"''""· Jll·'.UI, " N,.. 111r rnlm 1.. 111111111110•1" lmh1111 ··~I in .111111 vt•I .1r11••nlo, •·~I 1•1 h1
"""I'"''""'' ,1t11111t.1ti... J11rl• . 11f111 II v1•l h 1111111I• .. 11..111 ··
•It• 1 >1·111 •11·'· 7 ••PW 'IPl'l
 224 THE lOEA OF NATURAl RIGHTS
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 au-
thority 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 pro-
gressed, 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 au-
thority 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 hear-
ing confessions, a right of administering sacraments, a right of giving
burial, a right also of receiving tithes and other parochial rights (iura). 50
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 con-
trast 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'<I)
G ERSON. CONCILIARJSM, CORl'ORATISM, AND INO!VlDUALISM 225
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 de-
h'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_ di-
11-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
The opening chapters of the De vita spirituali animlle introduce us to the
..1-cond main theme of the conciliar movement, reform of the church. When
, nnciliarists wrote about "the reform of the church in head and members"
they were usually thinking mostly about the reform of the he_a d-:-and
<;erson certainly shared this concern. In the De potestate eccles1astrca ~e
, umplained about the excessive centralization of power in th~ papal cuna,
the endless lawsuits that were carried on there, the exaction of taxes,
tlw conferral of countless minor benefices by the pope, "and innumerable
H .,1 milar things."51 But in the earlier treatise, De vita spirituali animae, Gerson
was mo re concerned with the reform of individual members of the chur(·h,
with the renewal of spiritual life in the souls of Christians who had to
..tru~~le for salvation in a still unreformed church. .. . .
In Lectio 1 of the De vita, Gerson observed that the spmtual life mfuSt•d
mto the soul at baptism could bt• lost by mortal sin and recovl'fc-<l by Im·
r; 1. ( H-ur1rr.1. 6; 224, 219. On (;..noon "" nolormrr ,..... l '11Mu•'. /ron Gt~m amt S. 01.m1'f1I.
·· nu· lJnlvt•,-,.lly .m,t lhl' Clnm·h. l'•ll.. 11•• uf H,.fnrm In Jr1m <:.Onion: Mtdit1"1lin rt /1111111ml-
' " " · ru•w ,...rlr:o, I ( 1'1711): 111 11to l 111 lhr .. 1111'• l'" wrt II • n•urw 11111•11 ..,.., "''"' ( >tnwn l, tl11m1•
"1""11111/1• (I ••hlrn. l'lt1'1)
226 THE IDEA OF NATURAL RIGHTS
mility and penance. As we have seen, Gerson did not suppose that there
could be any actual obligation of God to man or any contractual relation-
ship between them as between equals. Gerson did not suppose that any
person couJd actually deserve saving grace (gratia gratum faciens) by his
own unaided efforts; he condemned that view as Pelagian heresy.52 Grace
was always a free gift of God. But Gerson trusted in God's goodness. He
shared the belief of many late medieval theologians that God would not
in fact choose to withhold grace from anyone who was striving to do
his best, " to do what was in him." It was an intensely personalistic, indi-
vidualistic view of each soul's responsibility before God. Although no one
could actually merit divine grace, any person, doing the best he could, ac-
cording to the strength he actually had, could "dispose" or "prepare" his
soul for the reception of spiritual life by striving to obey God's laws.53 All
moral righteousness of the will, Gerson wrote, resulted from conformity
to divine law.S4
Pursuing his argument further, Gerson asked, at the beginning of the
second Lectio, what was the nature of the law whose transgression took
away the divine life of the soul. His answer was in part merely conven-
tional. Humans were bound l.Jy divine tdw, dircdlf 1cvc.llt"U l>} God, anJ
by the precepts of natural moral law, discernible by human reason. But
there was a further difficulty, and, in discussing it, Gerson was led to for-
mulate first his idiosyncratic doctrine of Christian liberty, an adaptation of
Pauline teaching to the ecclesiological circumstances of his own times, and
then a more general definition of subjective rights. The difficulty trou-
bling Gerson was his perception that the divine law, essential to the life
of the soul, had become overlaid by a mass of human tradition. The poor,
bewildered Christian, seeking to obey the pure law of God, found him-
self bound on pain of sin by a vast accumulation of additional regula-
tions. lt was hardly possible to enumerate them all. They came from
canons of popes and local councils, rules of religious orders, regulations of
universities, colleges and churches, edicts of emperors and princes. In the
beginning Adam had had only one law to obey, Gerson wrote, and yet
he fell. How could a Christian of Gerson's own day hope to avoid trans-
gression?s5
52. Ot-uvrts, 3: 116.
53. ~uvrts, 3:114-5, 117-a, " ... peccatrix anima nitendo facere quod in se esl, se disponit
ad vitam." On the background of this doctrine see H. A. Oberman. Tht llarwst of Medirool
Theology (Cambridge, Mass., 1963), especially at 131 - 34, 205-206, and, morl' rrcrntly, C. D.
Brown, Pastor and Laity in lht Theology offt11n Gerson (Cambridge, 1987).
54. Oeuvres, 3:124. "Omnis rectitudo moralis ipsius voluntalis result11t t'X ronformi t.1tl'
ejus .. . ad divinam legem et ejus reclam rationcm...."
55. ~uvrts, 3:129, "Quod si Adnm vir tnlis t' I 111nlu•. unit-um •ll1<dplln.w pr.wn•ptum
I'""'"
habt>ns in illo curruil, nos inlt-r innunlt'r.1hili.1 1p1.11i1t-r r vn1 t.•nu1..r
GERSON. CONCILIARISM, CORPORATISM, AND lNOIVlOUALISM 227
Gerson' s first response to the problem was to introduce his argu~ent
ninceming evangelical liberty, a theme that had already been emphasized
hy Ockham and that would be taken up later by Luther. Christ's law was
.1 law of liberty according to St. Paul; Christians were freed from ~he
bondage of the Old Covenant. ~et, even in the early c~urch, Augustin~
had found it necessary to complain about the growth of severe burdens.
"Oh wise Augustine, what would you say of our times?". Ge,~son asked.
rhc incredible variety of human regulations had become hke snares and
11ds," through which a person could hardly make his way ~rely."'
A major theme, pursued through the later chapters of t~e treatise, ":as
10 distinguish between the divine and natural law essential for salvation
.md the merely human rules whose transgression did not usually involv<>
mortal sin.
But, in order to pursue this theme, Gerson thought it necessary to
...upplement his treatment of Christian Hber:tf ~y introdu~ing the concept
of individual subjective rights. At the begmnmg of Lectro 3 he decla~ed
that, in order to continue with his argument, step by step, he needed f1~t
In consider some related material. This "related material" turns out to
hl· precisely the topic of our inquiry. " Hane materia est quid sit jus.. -~"
( :crson responded with the definition we have already quo_ted : "lr~s is
.m immediate faculty or power pertaining to anyone according to nght
icason."57 Right reason inhered primarily and ess~ntially in G<>?, ~e ex-
plained, so in a sense all the creatures of God en1oyed a certa1_n 1us by
virtue of the very fact that they had being and goodness from him. Here
( :crson wrote, strikingly, "The sun has a right to shine ... the swallow has
.1 right to build its nest." So too man, although a sinner, had a right to
many things, like the rest of fallen nature.58 •
In his definition of a right as a faculty or power, Gerson did not refer
...pecifically to a natural right, but this further argument indicates that lw
was concerned with the rights that inhered in all creatures by reason of
their very nature. The extension of natural rights to irrational creaturt>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 I.aw (Citti\ drl Vatkano, 19115), 351- 6\ . As PaKOl' p oints out, <.rr.!11111
c11,.." not mt>ntion Ockham in di....:·w,.~ing rvnngl'liral lih<>rty (though hl> did ttf<'r to Odr.h11111
,.1...•wht·n· in th1• lk 11il11 ~11irilu11/i11111111r).
c,7 ( )f•ur•rts, :l:141. St-.• .ib<1v1• n Ill
'ill 1 lruc•m<. :l 142. " 111 hum 1111Ml11m, urlum jll" hAl,.•l 1\ll inOm•mh1111. ,..,1 Atl \llu111ln1111
.tum hlrumlu 11.t nhllflc•11nclu111 'lie """"'""""'I"... • 111ur lu• h11hrt'"ImullA •Intl rt
.1hnc• I r<"AhHA•' "~'"''" ""'" 1lr11•llc ,,. .. -

228 THE [DE.A OF NATURAL RtGITT'S
that humans enjoyed natural rights in a different way from the rest of cre-
ated beings. He wrote that humans shared the gift of divine reason in a
unique way, by participation (participative). Human reason in its highest
form (synderesis) couJd discern universal principles of good, and, from
these, could derive more particular rules of conduct. The basic command-
ments of God, divinely revealed in the Decalogue, were also accessible to
human reason as natural law.59 Thus, man could live in conformity with
God's law by exercising his inherent ius, a faculty or power in accordance
with reason.
The relevance of this argument to the preceding discussion should be
apparent. It was the whole vision, set out in Lectio 2, of striving human
souls seeking to renew their spiritual life in a church which set "snares" for
them, which crushed their Christian liberty with "servile burdens," that
led Gerson to his definition of ius as subjective right at the beginning
of Lectio 3. For the individual Christian to reform himseli, to renew "the
spiritual life of the souJ," he had to follow divine and natural law (lex);
but in order to do this he needed an innate power or faculty by which he
could discern this law and fulfil it (ius). This way of correlating lex and ius
persisted in Western rights theories for many centuries. It was finally
expressed, most simply and clearly perhaps by Christian Wolff, "The law
of nature (lex) obliges man to perfect himself . . . ius is called a faculty or
moral power of acting . . . ius provides the means for what lex prescribes as
an end."60 This was Gerson's view too. For Gerson the first natural right
was a right of the soul to strive for its own perfection by acting in accor-
dance with God's law-which, in its central moral precepts, was known to
human reason as the law of nature.
Ius AND OoMINlON
So far Gerson's theory of rights is a sort of Christian psychology,
related to the second objective of the conciliar movement, the reform of
the church in head and members-especially in the members. Gerson was
concerned with the innate "right" or power or faculty or liberty of the in-
dividual soul to reform itself, to strive for its own salvation even in a
worldly, legalistic church.
59. ~lltl1l!$, 3:142, n!Jeinde, sicut dicta ratio participative in creaturis rationabilis dividi
solet a doctoribus in portionem superiorem et inferiorem sic s unt ejus dictamina multiplicia;
quaedam sunt circa universalia principia . . . alia s unt dictamina circa condusiones ex
eisdem principiis deducibi!es. Ex primo officio nominatur ipsa ratio synderesis . . . nulla est
veritas ita naturaliter cognita quin in superiori lumine superinfuso divinitus possit agnosci.
Hoc liquido constat in decem praeceptis. . . . Cf. 135 u •• • lex vera naturali!I innititur dicta·
N l ;..,-,.on rrf1•rn:'tl tn a pril'llf'll right of ,....·rtvlnK11th,...'"' A " ju• rt tltulum" (C N'urrrr.i, 41"'.l I)
mini ra lion.is.
N ti\ f\K""''
60. C. Wolff, Jn,tilutionts juris nalurnl' l'I Km lium NI., M. Timmmnnn Inc ;r,.,,mmrllr Wl'rkl',
Abt. 2, 36 vols . (Hild~hl'lm, 1%8 K'.l). 2f.:2.1 24.
GERSON. CONCtLIARlSM, C ORPORATISM, ANO INOIVIOUAUSM 229
But Gerson meant more than this by ius. After his original definition
,,f the term, the argument in Lectio 3 took a new tum, a sort of digressio~
from the main theme of the treatise as a whole. This next step of Gerson s
.1rgument was concerned with the idea of ius considered in relation to
~overnment and property, the familiar themes of so many later natural
rights theories. And this phase of the argument leads us finally to the
third major concern of the conciliar movement, the defense of the true
fai th, particularly against the errors of Wyclif which were eventually con-
demned (along with their later Hussite variations) at the Council of
Constance.6 • Gerson was perhaps reminded of this complex of problems
by the actual terms of the definition of ius as a "faculty or ~ow~r'' ~hat had
1~rown out of his earlier argument. After formally defining 1us m th~
terms he wrote that this same faculty or power could also be called a tit11-
l11s iuris, a lawful title or entitlement, 62 and he added, as we have seen,
that man retained a right to many things although a sinner. But the whole
difficulty with Wyclif's teaching in this area was that he d enied ~o a s~nn~r
.my rightful title to d ominion. Gerson evidently felt that, at this pomt m
his argument, he could not ignore a problem implicit in his own treatment
of ius as a faculty that was not forfeited by sin.
The issue of right and dominion had grown out of the old disputes
over Franciscan poverty. Richard FitzRalph, invited by Pope Clement VI in
1150 to reconsider these questions, developed a theory of dominion based
on divine grace. Since God was lord of all things, he argued, only men who
1•njoyed God's favor could exercise licit authority on earth. This was not so
shocking in itself. There were scriptural and Augustinian texts that co~ld
be add uced in support of such a position; and Giles of Rome had earlier
h;ised a whole papalist ecclesiology on similar arguments. But, in the gen-
1•ration after FitzRalph, his conclusions were developed in a radically
.mtinomian fashion by John Wyclif. Wyclif argued that, since the rulers of
the church were evidently corrupt, they had forfeited all their rights as
prdates. They could exercise no licit dominion-rulership or ownershi~
over the church or its property. Accordingly he urged the secular power m
England to embark on a radical policy of d isendowing the church."-'
h J. C..crson did not mention Wycli( specifically in the D~ 11i ta spiriluali animal'. I le rl'f<"rml
""'Yto FitzRalph, - dominus Armachanus" (145) and to "qu~am e;1t doctorib ull ~n.Klkam•
, .1 lung<' dl'lt>rius quosdam ex haereticis ... ." (15 1). Perhaps an 1402 he knew Wychf ll vl.. ws
I •y n•pu te but had n<>I actually studil'tl h is writing.... In latN work.., C".erllOn rt'ft>rl't'd lo Wydll
loy nnme. (Fur references!'!('(' (N'ur•m<, Hl:M4.)
r.2 " . . . haK po~la!' !K'U (an1ltltll 11lll••r t lluh11• j11rll• vornrt'lur-" (0..111•rr.<, '.I: 142). F.IPl<'wl"•n•
nutlin.• of thr 1trv.l11pmrnl l n11n l'lltl<alph In Wydlf (with muct.·r~1 llkrah1rr
"" tlwir t<'1'•·hh1K•l I• 11mvlil1•1I hy I I 1 I law•1111. ''Hh h11ttl l 11l 1H11lph ""'' 011' 1·11111 h•C' nl h
( ·,.11lury l'o v,.rly ( "n11lruvr1•lr• ," /111m111I 1t/ I " lr•llf•ll111/ ll l•fl•IV :14 (1'1111) 'll'i 44
230 TuE IDEA OF NATURAL RIGHTS
There were elements in Wyclif's thought that might have appealed to
a conciliarist. An acceptance of the idea that a bad pope automatically
ceased to be a pope at aJI could have provided a simple solution to some
of the outstanding problems of the Great Schism. There was even a re-
spectable canonistic tradition that could have been used to support such
an approach. But Gerson saw that Wyclif's argument, if pressed to its logi-
cal conclusion, would lead to mere anarchy. If only those prelates who
enjoyed God's grace could possess licit dominion, and granted that there
was no sure way of knowing the status of any individual soul before God,
then there could be no certain authority in the church.64
Gerson's concern with this theme, a central issue of the conciliar
epoch, dominated the next phase of his argument, where he attempted to
derive a whole theory of government and property from his initial defini-
tion of ius.
Now it remains to show how, from ius so defined . . . there arise polities
and many jurisdictions and various dominations, kingdoms, and ruler-
ships.65
After a brief reference to the opening chapters of the Decretum, Gerson
wrote modestly that he would say things "not other than others but
perhaps otherwise." His discussion, he explained, would solve the dif-
ficulties that perturbed many people-whether an unjust person could
justly hold dominion and whether a person who fell into mortal sin im-
mediately lost dominion, and how members of religious orders retained
or did :lot retain dominion over common goods.
It is interesting that Gerson, like many later natural rights theorists,
took ius as a primary category of thought from which other legal and
political relationships could be derived. (He even claimed, again like the
rights theorists of later ages, to be arguing in a mathematical manner, to
be constructing a sort of juridical geometry.66) We need not pursue a11 the
intricate details of his arguments. Gerson distinguished three types of do-
minion and, of these, the concept of natural dominion was most important
for his rights theories. "Natural dominion," Gerson wrote, "is an immedi-
ate power of taking things .. . into one's power and use according to the
rules of natural right.''67(Similarly there was an evangelical dominion "ac-
64. Oeuvres, 6:212. After mentioning the condemnation of Wyclif. Gerson expla.ined,
"Cur ita? Ne hierachus ordo potestatis ecdesiasticae maneat instabilis, vagus et incertus cum
nemo sciat an amore vel odio dignus sit. ... # '11ri•11s sic quod in tjus necessitate omnia !libi !lint ad hoc communia." On the carllt-r dt•vt-1
65. Ot-uurts, 3:143, hNunc superest ostendere qualiter ex jure sic descripto multiplices,
saltem secundum rationem, oriuntur politiae et multiplit l'S jurisdictiones l'I divl'rsae domi-
0
nationes regna vel imperia...."
66. Ibid., Gerson compared his argument to that o f a " K('Omtotl'r vl'I arithnwlirns."
67. Ot-uvrts, 3:144, " Dominium m1turalt• t'!lt potf"!'hli< propim1u11 "-' "unu•mli " '" ;ili;i11 Vt•I
ut a lias in sui f:acultatrm vel u11um i<t'<'IUl•lum n~ul"" j11ri1111l\h1t111i" "
GERSON. CONCIUARISM, CORPORATISM, ANO INotVlDUALISM 231
cording to the rules of evangelical right" and a human dominion "accord-
ing to the rules of human right").68 This power of dominion was a gift
freely bestowed by God, in the first place on Adam. "Natural dominion is
a gift of God by which a creature has the right (ius) immediately from God
to take inferior things for his use and preservation." Dominion, then, was
one form of right, and it was related to the basic end of self-preservation.
Jn Adam this natural right included the power over the birds of the air and
the fishes of the sea described in Genesis, and it also included the power of
liberty.69 The crucial point is that, for Gerson, this natural right of domin-
ion was not wholly lost by Adam's fall "No one is such a sinner as to have
no dominion that can be called natural." 70 Gerson had argued earlier, as
we saw, that all creatures possessed some kind of ius by the very fact that
God conferred existence on them; now he added that if man had lost all
his God-given natural right after the Fall he would have been simply an-
nihilated.71 God continued to bestow his gifts freely even on sinful man.
Human liberty, he noted, persisted even after the Fall. And toward the
<.• nd of his discussion, Gerson also defended the persistence of a kind of in-
.1lienable natural right to use the things essential for self-preservation. A
friar might renounce all civil ownership, singly and in common, but he
would always retain a "natural title" to the necessities of life, a ius nutriendi
rnrpus, since, in case of necessity, all things were common.n
After the Fall, other forms of dominion were instituted. Civil or
human dominion, based on human law, included coercive rulership and
private property.73 Licit dominion of this sort existed even among infidels.
After the Redemption there was also a kind of evangelical dominion, a
n>mmon right of all Christians to all things, in accordance with the words
of Paul, "having nothing yet possessing all,'' 14 a right that was founded in
08. Ibid., Gerson applied the same threefold classification (divine, natural, and human)
.1L...1 to politia and jurisdiclionts.
69. Oeuvres, 3:145, HErit igitur naturale dominium donum Dei quo creature jus habet im·
"''"liate a Deo assumere res alias inferiores in sui usum et conservati.o nem... . Hoc modo
l1.1huit Adam dominium super volucres coeli et pisces marls ... Ad hoc d o minium Spl'<'lan•
poh~t dominium libertatis. . . .~
70. Otuvres, 3:146, " ... null us erit ita peccator quin habeat al.iquod dominium quoJ Jtd
1•11h•rit naturale . . . habet saltem domi nium libertatis in actu vel habitu."
7 1. Ot'11vm;, 3:150. After repeating that God did n ot withdraw all his gifts from a !linnt-r,
• .rrson added "alioquin flueret in nihilum."
72. (),.11v rl'S, 3 :156, " . . . d icimus titulum naturalem ad quern coruiequitur ju.~ n11trh'mll
• •1•mt•nt nr this doctrine !iee abovt•, 72- 7).
·1.1. R11tht-r JiMppointingly, wh1'f1 ( :rn1on rrli-1 tlw IM~ o f ht>W a right to lndlvidnnl
l'" 'f"' rly nmld .iris.• fmm 111111riich111l "l"lr of 111111111"1111w111•r.ihlp. 11n irnporlnnt 11<.•111• in vul
""" ••.uli1•r 11111! IA!t•r rlicht11 thC'urh.,., lw w1111.. ahnply thr11I hr wouhl pM11 11v1•r thl11 mr11tlrr "fur
lr.u 111tlrgn-io~in)t111111nud1. " ( lt-111•tr·• . I l'lf1 'I'/
·1-1 ( '""'"'" :1 14(1 7
 232 THE IDEA Of NATIJRAL RIGHTS
charity and lost by sin. It might seem for a moment that Gerson was fall-
ing into Wydif's error here; but the whole point is that, for Gerson, loss
of evangelical dominion did not imply the loss of natural dominion or
human dominion (that is power or property held in accordance with
human law). A right of human dominion could be forfeited by voluntary
alienation or by judicial sentence, but, Gerson insisted, it was not lost
simply because the holder fell into sin. David did not lose his right of
kingship when he committed adultery. It was the same with a sinful
pope.75 "No hidden heresy, no mental simony, no hidden crime takes away
civil dominion, whether canonical and spiritual or legal and temporal." 76
H subjects cou1d desert their superiors at will, without waiting for a de-
finitive sentence on them, all government would be reduced to miserable
confusion.n
An unjust ruler could be deprived of his "title" to rule only after judg-
ment and condemnation, and Gerson held that the whole church or a
general council was competent to pass sentence on a pope. But, since no
council was in prospect when he wrote the De vita spirituali animae, Gerson
suggested in this work an alternative course of action based on his doc-
trine of natural rights. It will serve to lead us back to our original point of
inquiry-the relationship between the theories of subjective rights devel-
oped in Gerson's earlier theological writings and the corporatist concept of
a general council presented in his mature conciliar treatises. To be sure,
Gerson argued, an evil ruler did not simply cease to be a ruler. A pope who
committed arson or rape was still a pope. But nothing prohibited the in-
jured individuals from exercising a natural right of self-defense against
such depredations. No human law could take away this natural right,
wrote Gerson. It was based on the title of natural existence conferred by
God himself.71 Similarly every polity had a natural right to preserve itself
in being just like an individual person. Later, when Gerson became firmly
committed to the via concilii as the only way of ending the schism, he em-
75. Oeuvr~. 3:146, "Propterea manifestum est quod absque charitate potest tale do-
minium retineri; quoniam non in ea sed in alio dono fundatus est suus titulus. .. . " 150,
" Numquid David perd.idit jus in regno quia adulterii crimine pollutus est? Numquid apud
infideles ... nuUus omnino juste politizat? Absit . . . non perditur eorum jus regulariter
absque peccatis manifestis ... quae stare nequeunt cum debito usu talis dominii in republica,
et dumper sententiam definitivam talia esse monstrata sun! et damnata.H
76. Oeuur~. 3:150, "Exhinc perpenditur quod nullus h.aeresis occulta, nulla simonia men·
talis, nullum denique crimen occultum tollit dominium civile, sive illud sit canonicum el
spirituaJe dominium, sive regale et temporale.H
77. Onlvr?S, 3:151, " .. . quis non videat protinus omnia d o minia fore mi~ra rnnfu~ionl'
turbanda ?"
78. ~uvres, 3:152, " ... humana con.~titutio jn!I hoc natural.. lullrrr nnn pu luit; fundatur
enim in tilulo naturali~ t'- i~ll•ntlnl' communlnilnt'" I><'<• lp~I .-n•nt11r111• rnllrn111ll ,,.1 'I"''"'
titulum COll..'l<'qUitur ju~ Jrfr11<kn•ll ,... ..t 1111-1" rrprll••tufl, hn·· ,.,, vi m VI n'l"'llc•n• ··
G ERSON. C ONCIU ARISM, CORPORATISM, AND INDrVlDUALISM 233
phasized again the individual right of self-defense in order to support the
right of the whole church or a general council to resist an err~g pope. On~
can see the development of the argument dearly in the treatise, De aufer1-
l1ilitate sponsi (1409), "Since it would be licit for one single person to repel
force with force in case of violence attempted by a true pope against life
or chastity . . . why in a similar case should it not be so permitted to the
whole church?" 79 Once again, it was because individuals possessed rights
that the corporate associations they formed could exercise licit authority.
To recapitulate: at every point in the development of his rights th.eo-
ries, Gerson was motivated by his desire to achieve the central obJec-
tives of the conciliar movement. His teaching concerning a natural right
of dominion was developed to refute the Wyclifite error condemned at
Constance. His influential definition of ius as a faculty or power of the in-
dividual soul, was developed in response to the conciliarists' demand for
reform. Finally, Gerson's theory of conciliar supremacy itself rested in part
on his defense of a divinely ordained right pertaining to individual pre-
lates in the church and in part on his assertion of an individual natural
right of self-defense inhering in all persons.
Joseph Wohlmuth was no doubt technically correct when he wrote
that conciliarism did not lead to a catalog of human rights in the modem
sense. Probably no one before the twentieth century ever conceived of
quite such an extensive catalog as we find in a document like the United
Nations Declaration on Human Rights. But Gerson's achievement should
not be underestimated. In pursuing the aims of a whole generation of
church reformers, he formulated a theory of individual subjective rights
that included a natural right of each person to fulfil God's law, a natural
right to liberty, a natural right to self-defense, a natural right to the neces-
sities of life. Moreover these doctrines were not forgotten. Transmitted by
writers like Almain and De Soto and Vitoria and Suarez they entered th('
mainstream of early modem thought on natural rights and so influenced
80
the whole subsequent development of Western political theory.
These comments on Gerson lead on to two concluding suggestions.
The first concerns the conciliar context of Gerson's work. Perhaps th(•
79. ~11vrts, 3:300. "Quoniam uni singulari personae fas esset in casu violl'TltiaE" atll'n
t.tlat• per p apam verum contra castitatem suam vel vitam vim vi repell~ .. . cur !limilitl'r in
,·.tsu non licl'al idem Ioli Ecclesiae pm dE"fe n.<Jione s ue l'I vio lentiae attentala«' caula n ·pn·"
'iune.#o
1111. An l'mphas i!I on community n11 w1•1l "" <m imlivi~ual right:t.p<'nt:i!ltl'd «'Vt'O In 1....·kr .
S.-.•, <'.g., J. Tully, I\ Di~ctllr5" ctn l'n'l'"''Y /,../111 r.-ir 111111111~ A•fl'l'rl<41rr~ (C11mbrklgE", l<nlll), II ,
···nm~ a fund;imrntal 11!11111mptlon ul I A•d•r'• 1•ullll..•l thnught I.• , c:ontrary tu com m un m l•
1 m.tl'r~tamling11. nut " ' '"'"' tn•11 •• 1111 IM•I•-'•" ' h1tllvhl1111I 1>111, n1lht•r, lo ll't'AI him In hi•
""rlnw• ro•l"ll""" wllh otlwr mrn 11ml with I ;,,.1 ·· <l'I . ··1... ·t.r'• t1n.,ly11I• 11lw11y• pn'!l111•fHllM'-
111rn •>rl(Allllr<l lnh• • 1111111"'11011111111111ty •·
 GERSON. CONCIUARISM, CORPORATISM, AND INDIVIDUALISM 235
234 THE IDEA Of NATURAL RIGHTS

whole body of conciliar literature should be reevaluated in relation to This suggests another more general, perhaps more significant con-
the Western rights tradjtion. There has been abundant work in the past clusion. The contrast between holism and individualism, with which
thirty years dealing with the influence of conciliar ideas on secular politi- we began, may after all distort rather than enhance our understanding of
cal theory,81 but this particular theme has not been much explored. Yet the history of Western rights theories. If we want to seek out the origins
Gerson was certainly not alone in his concern for individual rights. Pierre of a doctrine of natural rights we must learn to understand a medieval
d' AilJy, before Gerson, was interested in the same problems of dominion, religious tradition and a medieval society where the values of individual-
rights and grace that we have considered in the De vita spirituali animae, ism and of community were equally cherished. Holist and individualist
and Jacques Almain returned to these questions in a later age of conciliar doctrines can be forced to extremes where they seem mutually exclusive.
thought. An emphasis on the rights of individual prelates against the pope But they do not have to be so forced. Gerson wanted to reform the whole
was common in conciliarist literature. Dietrich of Niem wrote, "If the church as a corporate community in order to enhance the spiritual life of
rights of each indjvidual bishop are not preserved, what happens than that each individual Christian; and he believed that, to pursue freely " the
the ecclesiastical order is confounded?" spiritual life of the soul," each individual needed to be endowed with cer-
No one, at this date, would want to minimize the extensive influence tain inalienable rights.
of canonistic ideas on conciliar theories generally (Francis Oakley has re-
cently reemphasized the pervasiveness of this influence).82 But earlier
writers on this topic considered mainly the canonists' juridical exposition
of the holistic conception of the church. Jn considering our particular
theme of natural rights and conciliarism, it is important to keep in mind
especially the earlier canonistic teachings on rights, the transmission and
adaptation of canonistic concepts in the work of Ockham, and the com-
plexities of canonistic corporation theory. Earlier canonists wrote exten-
sively on ius considered as an individual right; it would be interesting to
see how much of this persisted in the works of such canonist-conciliarists
as ZabareUa and Panormitanus. Certainly both great jurists distinguished
carefuUy between the objective and subjective senses of the word ius, be-
tween ius as objective law and ius as subjective right.13 Nicholas of Cues
too was a canonist by training though we remember him now more as a
great theologian and philosopher. Nicholas is normally thought of as an
extremely holistic thinker; de Lagarde once called his conciliar theory a
"swan song" of corporatism. But Nicholas also wrote of "the equal natural
rights common to all men." 84

81. On this see especiaUy the collected articles of Francis Oakley, Natural Law, Concil-
illrism and Consnit in tht Late Middle Ages (London, 1984).
82. Natural Law, 796- 797.
83. Zabarella, CommtnlarUI on X.5.40.12. "lsidorus in hoc capitulo non loquitur de iure
generali quod ieglous vel moribus constat. .. . Seel accipit ius pro iure quod competit privato
in aliqua re...." He was discussing a phrase or Isidore incorporated into the Decrrtals, " lus
dictum est a iure possidendo." The commentary of Panormitanus on the same text was incor-
porated as an addition to the GIOSS4 Ordinmia in D«retales D. Grtgorii Popat IX cum glossis . . .
ad exnnplar Romanum difigtnkr recognita (Lyons, 1614) (ad X.5.40.12}, "Diffinitur hie ius, non
prout est generate nomen, sed prout applicatur ad certam rem quando d idtur: habro ius in
tali re." On earlier interpretations of Isidore's text see above, 124- 25. in I."cir;.i 1111io;alio111llf/~•rnllllf' d11 "'''.II""" l!(t ~ /11 /fn olr r t\m·rm Rf!(lnlt' (I A1\IY.1ln. I'J:l7), :l
!l'I 411 !12
84. Dt concordantia catholica in Nirofni de Cusa "Pf"' 11mnia, I'd. <;. K11ll1•n, t"I 111 .• Iii vol~ . NII ho1,1,. rdi•rro•ol lo lhr " . 1·11mm11111•111 "11111lum hn111t1111111 .1r.11141lrm u.11ivll4lll'm r l " ''
(Hamburg, 19)2- 95). 14:348. C.. dt' l.agnrdl', "l11dlvidu11ll11ml' ••I m rpurutlNmo• om moyc•n "K" 1111nlt.1 n•1l11rnll11 h1r11

~
.<
TEN
i•
•.
i1
:_'
~ l
ALMAIN, MAIR, SUMMENHART
I
~
T he years around 1500 are commonly seen as a watershed in Euro-
pean history, an era of new departures in many areas of life and
thought. Copernicus was born in 1473 and Michelangelo in 1475; Colum-
bus crossed the Atlantic in 1492; Machiavelli wrote The Prince in 1512;
Luther posted his ninety-five theses in 1517. In the sphere of politics this
was an age of "new monarchies," of more effective, centralized govern-
ments in various regions of Europe. Our problem is to understand how a
peculiar doctrine of natural rights that had grown up in medieval ju-
risprudence and was then nurtured by an obscure squabble about Fran-
ciscan poverty, and by the conciliar movement for church reform, could
survive into the new age and persist as a major strand in Western political . I
theory. There was nothing inevitable about it. In some works of the early
sixteenth century the medieval doctrine of natural rights seems to persist
only as a tired survival from an age that was passing away.
MEDIEVAL SURVIVALS
ln the first years of the sixteenth century, the ideas of Ockham and
Gerson about the limits to papal authority and about the natural rights of
individuals were still alive in the University of Paris; they were transmit-
ted in the works of theologians like Jacques Almain and John Mair, and in
the writing of Conrad Summenhart, who studied at Paris before moving
to a chair at Tubingen.1 Jacques Almain, who wroh' an l'Xlcnsive discus-
1. On Alma in and M11ir 8f't' J 11. llurn•. I 11rrl•lrl/•. ~'"·'<'"'1• 11111/ l'm1•irr 11rr ltlm ••/ Mmmr.-h_y
1400 f ,' j]fi (C ldnrtl, l<Nl), 1'.\11 14'1, hlo•m . " l'r•llllH'"llrlll• rl ••1•/111111 11w l'olllknl hl••M of Jnhn
ALMAIN, MAIR., SUMM'ENHART 237
sion of Ockharn's Octo quaestiones, emphasized the fundamental right of
self-preservation. He wrote that God had made man with a "natural right
or power" of acquiring the necessities of life and also of resisting aggres-
sion, even to the extent of killing the aggressor if necessary. He also wrote
that, by natural law, every-<>ne was obliged to preserve his own being, so
that self-preservation was both a right and a duty, and so an inalienable
right. 2 Here Almain was restating a medieval argument that persisted as a
central theme of the major seventeenth-<:entury rights theories.
The writers of this period commonly distinguished between paternal
power and the authority of a civil ruler which, they maintained, was de-
rived from consent of the people.3 Almain noted that a community could
not grant to a ruler a power which it did not itself possess; so he argued
that coercive power, including the power of life and death, inhered natu-
rally in a political community. This power did not come from any external
source, "unless it is said to be from God."• And just as an individual could
cut off a gangrenous limb to save the whole body, so too the community
could cut off by death anyone who threatened its existence. This under-
lying power of the community was the source of a ruler's jurisdiction. Re-
ferring to an earlier opinion of Durandus of Saint Po~in, A1main argued
that the authority of a king did not come from God directly, but only in the
Mair,H History of Political Thoughl 2 (1981): 31- 61 ; Q. Skinner, Tht Foundations of Modtrrr Po-
litical Thought, 2 vols. (Cambridge, 1978), 2:43-47, 119-123. On Summenhart see H. Ott, • zur
Wirtsc.h aftsethik des Konrad Summenhart,H V-wttljahrschrifl fiir Sozial-urrd Wirtschafls·
geschichtt 53 (1966): 1-26.
2. Dt aulhoritnlt tcclesiat ti condliomm gmtralium in foannis ~rsonii opera omnia, td.
E. du Pin, 5 vols. (Antwerp, 1706) 2: col. 977, HDeus, naturae author, hominem condidit cum
naturali Jure, seu potestate, ea quae suae sustentationi ac conservatione necessaria sunt
sumendi - .. super quo Jure fundatur potestas eum, qui injuste aggreditur, interimendi, sl
servetur moderamen inculpatae tutelae... ."; idem, Quaestio resumpliva in du Pin 2: col. 961,
"Dominium naturale, quod homini convenit ex dono Dei, simpliciter est inabdicabile .. ..
Huie d ominio, nullum Jus humanum derogare potest, cum Jure inferiori non abrogetur Ju~
superius."
3. In the background of this argument was the Roman Jaw doctrine, repeated by tht-
canonists, that the popu/11s had origin ally conferred its own authority on the emperor. On pa-
ternal and political power see John Mair, Jn Quart um Snrtmt:iarum quatSliontS uti/issimat ( Parl'I,
1519), fol. Cllv, H •• • potestas enim patema patris ad !ilium est de Jege naturae .. . . Alia est
potestas politica, et ilia convenit homini ex rorum consensu super quos habet talem potl't'·
tatem . . . . " Similarly, Conrad Summt>nharl, DI' rontrart11rus licilis rt illicit is (Venino, I 5M), JS.
4. Qwustio rrsumpliva, col. 964, "S.'<·umlo, 1111ppontndum est, quod in illa Communll11h•
Jurt' naturali esl pott5ta!I qual'd11m, 'I"" lld ll' 111011, quorum v ita est in perturballnn<'m f'ltu,
pnlt!il a corpo n- pr~ndrl"I', rtl11m fl"' 111or1rfh; rl l11ttttl cfrducitur 11 pri(lri l'X rationc-11anr ll
Tn m a11. 2.2.q.6S Arlk ulo I ... t"lllll ( ·umn11111llo •lrl l' 1l11d pl aul"torllatrm ocrldt'fldi, 11eoqultur
•11101.1 1'!11 priu." in Co111m1111i111lr, "' non•- ol11lh ""' • 11j1111n 111111111• 1dlf'riui1, 11l11i dkt1l11r f lc•I: "'K"
In ••11 ' '"' 11111 potr11lu n111ur11ll• •um'"" l'111r1rplum, Nu" 1~·,·1.1,... , Exo•1. .,. l:l 1111 .tr Jur..
n11l11ritl1•, llflli 11h f'(f , ...I fllll llllhmllll lllhjlll• I 11•11• Ol•o fj'l'lf'hll ••
238 THE IDEA OF NATURAL RIGHTS
sense that God endowed humans with right reason through which they
could discern the need to establish a governing authority. Moreover, Al-
main insisted here, relying on a text of the Decretum, a people did not
alienate its own jurisdiction when it instituted a ruler; rather the ruler held
only a ministerial position as a delegate of the community. Just like an in-
dividual, a political community possessed an inalienable right to preserve
itself in being; hence it could depose a ruler who abused his authority.s On
this view a community was always greater than the ruler it instituted, the
populus g:reater than the emperor, a general council greater than a pope.
Mair and Almain and Summenhart all discussed the emergence of
private property from an original state Clf common possessio~. They were
especially concerned to argue, against FitzRalph and Wychf, that own-
ership of property d~d not depend upon being in a state_of grace_. ~e­
tracing earlier pathways of thought in considerable detail they dt~~n­
guished between an age of primal innocence and the subsequent ~ondthon
of humanity after Adam's sin. All the standard arguments against com-
mon ownership among sinful humans were repeated, including ~~istotl~'s
criticism of Plato's ideal republic. The Parisian masters saw no difficulty m
assimilating Aristotle's position to the Christian myth of the Fall; the <?reek
philosopher was evidently writing about the state of fallen men, Mau ob-
served, because he knew no other. Summenhart held that natural law and
natural reason inclined sinful humanity to acquire individual property,
but he insisted that the actual division was made by human volition, by
positive human law.6 Property could have been instituted by paternal au-
thority, he wrote, or by the political authority of a ruler, o~ by the c~mmon
consent of those concerned without any dictate of a supenor authonty. The
question whether property was instituted only aft~r governments were es-
tablished or in a prepolitical condition of humankind had not yet become
an urgent issue. It still seemed easy to argue that, even if private posse:-
sions were instituted by civil law, rulers were not the actual owners of their
subjects' goods, able to make use of them at will.7 In making this point
s. Ibid., " Nulla Communitas perfecta hanc potestatem a se abdicare pot~I•. sicul n~
singularis homo potestatem quam habet ad se conservandum in ~ . .. domm1um Juns-
dictionis Principum est solum ministe ri.a le in ordinem ad C~~umtatem.. · · .Non polest
renuncia.re Communitas potestati quam habet super suum Pnnapem ab ea constitutum, qua
scilicet polestate eum (si non in aedificalionem, sed ad deslructionom regal) deponere i:'°t:-'.I·
cum talis polestas sit naturalis: et istius sententiae es t glossa. 23 q:3: Can. Ostendrl, ub1 d1c1t:
"Populus habet Jurisdictionem, licet dicat Lex, quod eam tr~nstuht m lmper~torem. N~~ ;~
civitas, vel populus non haberet Jurisdictionem, quare pumn>tur propter dehctum Jud1c1s.
There is a similar argument in Almain's Dr a11llmril11lr rcr/t'!liM. nw n·ference to Durand us of
St. Pou~ain is included there at col. 971t
6. Mair, Quarlum Srnlrnlinrum ( l ." il'I), fol. l 'v; S ummrnhn r t , / >r 11111lmrl11111s. :I!\, :w
7. As Mair ob!lervl'tl, a klnK 1lhl not own hi• l.lnK•lllm In thr w"y thnt ",..·h••litr nw1w.I hi~
book~. Qunrlum $ mtm,111111m (l'lllJ), fol ( llh." '"' 111111 " " ' " ' ' llA 111..·rum .tumi11111111 in
n"K"" 111 •'K" In hlhll11 1nr11 "
AlMAIN, MAIR, SUMMENHART 239
Mair echoed Ockham's argument that Christian law was a law of liberty
and that, if a ruler held plenitude of power over his subjects' persons and
property, they would be in a more servile state than the Jews living under
Mosaic law. Almain stated the same argument with a direct reference to
Od~ham.3
These late medieval scholastics thus preserved a whole tradition of
thought about natural rights, property and government that had flowed
from the jurists through Ockham to Gerson; but, as Francis Oakley tact-
fully observed, their own thinking was "somewhat less than outstanding
for its originality." When we turn to their further refinements of thought
about rights problems we may have a sense of a tradition that was in
decline, perhaps becoming moribund. Too often the authors seem more in-
terested in pursuing endless scholastic subtleties than in applying the old
tradition they had inherited to the newly emerging problems of their age.
MAIR. RIGHTS AND NEEDS
Let us consider for instance Mair's approach to the problems of
poverty and almsgiving. During the medieval period the canonists had
worked out a body of law that acknowledged a natural right of the poor to
the necessities of life and that regulated the administration of poor relief
through a network of ecclesiastical institutions. But, at the beginning of the
sixteenth century, Europe faced new problems of poverty and an inten-
I
sification of old ones. Attitudes to the poor were growing harsher at this
time. To many people it seemed that the best way to eliminate poverty was
to punish the poor; more constructively, secular authorities in many parts
of Europe began to establish systems of public poor relief. In 1526, the
i humanist Juan Luis Vives wrote a pathbreaking book, De sulroentiont pau-
perum, advocating such measures.
This was the situation when John Mair, a few years before Vives, took
up the problems of the destitute poor. He first presented the standard ar-
gument that, in accordance with natural and divine law, all were obliged
to give to those in extreme need.9 Then he presented a host of subsidiary
questions concerning the relief of poverty. These are some of the issues that
Mair thought worth pursuing. Does a rich man who gives to the needy
II. Ma ir, De poltslalt papal' in ltmpornfib1t.• in Grrwnii Opt'rO 2: col. 1151; i\lmain, F.x~ili<•
n rca drcisiones MnRi5lrr Gui/It/mi <>cn1m, ibht., m l. I010, "Ergo ex instituti()fl(' divina, Papa non
habet supr<'mam Potestal<'m r>omlnll In 11h1K11li" homnibu..' et rebus ip:1<>rum: imo dkrR'
uppo~ itum , ut dicit Ocn1m, t'RI m11ll11m l111rrrth .. Ir l'1 pt•miri<>S<1m . _ . not1mdum quot!
I J' l Christiann. ~11 J'X S111orrmnt l .1t>r1 "'""· l'Tlll"' 11•1lf' In nnlinr ntl Vl'lt•ram Lrgrm, pllllt•l lnt'tihl.
1 2~...
11. / ..11111r.• Mnmr 111 '1Ullfl1m1 S l'lllt11ll111m1111·-111. I 'llr11. 1111 h•-.11 v, "(Jullll..-1 nm1 ...i..trn•
111••-.trc•mA l\l'l'l'JIAlt•lll' '""""" 1114 11111•1• llll 1tlll •••I lt1 P•hr111111"'' r"J1lh1tt' . ti...· •~ •nd11.111111 ...1
rvhl••11,. l11 l11rr r11•l11t" rt <llYllM• '
240 THE IDEA OF NATURAL RIGHTS
poor give what is really already theirs? And if so, how can he really be said
to give alms? Would it not be better for me to give to a less needy person
than to one in extreme need, since the former would be obliged, out of
gratitude, to pray for me, while the latter, receiving only what was due to
him, would not be so obliged? What if there were a thousand rich men and
only one poor one? Would they all be obliged to give? If I am required as a
penance to give alms should I give to a less needy person rather than to
one in extreme need? (If I give to the latter, it seems that I have not per-
formed a penance at all since I was obliged to give to him anyway.) If all
things are common in case of necessity does it not follow that the poorer a
man becomes the richer he is, since everything is open for him to take? If
four men are in extreme need and I have sufficient resources to save only
one of them from death, am I obliged to save any of them? It would seem
not. I am not specifically obliged to save A or B or C or D, so it seems that I
am obliged to no one. If a person not in extreme need steals a cheese and
then is deprived of all his other goods, does the cheese become his own?
May he eat it? And what if the original owner falls into extreme need
before the other person does? Or afterward? Or at the same time?10
All this is standard theological casuistry. The questions are ingenious.
The point is that they do not address any of the urgent problems that faced
European society at the beginning of the sixteenth century. Only at one
point in this extended argument did Mair touch on a real social problem.
He wrote that it would be licit for a ruler to prohibit mendicancy so long
as he made other provision for the impotent poor.11 This was a timely
comment, and it has been noticed in some modem histories of poor relief;
but it was only one passing observation in a long discussion devoted
almost wholly to abstract theoretical issues of the kind I have outlined. In
discussing the problems of poverty, Mair seems to have been much more
interested in sophismata of his own invention than in the social issues of
his age. Moreover, in all his intricate argumentation, the concern to protect
the actual rights of the poor, evident in earlier canonistic writing, has
almost disappeared.
Mair gave answers to all the questions on poverty mentioned above;
but sometimes he presented hypothetical problems about rights with-
out any dear solution. He explored, for instance, a metaphysical difficulty
concerning the right of ownership (dominium). For a nominalist, dominion
had to be something real, and this must be either the owner of a thing or
the thing owned. According to Mair this implied that to have the use of a
thing or a right in it was the same as having dominion; but he conceded
10. Mair discussed all t~ qut'l<lion• In hi" U1111rlun1 '>mtmlru111111 (l'itlQ), fol. luxii fol.
boO<V.
I\. lhid .. fol. hooclll v
Al.MAIN, MAIR, SUMMEN HART 241
that this was an understanding of dominion different from that of ordinary
speech. From a realist point of view, one could regard dominion as a rela-
tionship between a person and a thing; but this explanation was also
;. inadequate because, for a nominalist, such a relationship has no real ex-
istence. Mair argued that it was just as difficult, or more so, to explain
dominion in realist terms as in nominalist ones, and, without resolving the
j! issue, con.eluded that it was better not to raise metaphysical difficulties
about such matters but to discuss them in the language appropriate to the
1! subject matter.12
Mair's argument really leads to the unpromising conclusion that
rights language cannot be justified on either nominalist or realist premises.
I have not seen it discussed by any of the modem authors who insist that
the idea of individual rights was derived directly from late medieval nomi-
nalism. But, a little later on, De Soto, defending his own doctrine of rights,
dismissed Mair's nominalist position as barbarous in language and absurd
in content. Who, he asked, would want to hear that ownership of a horse
was either the horse itself or the rider of the horse?13
Some of Mair's other discussions of rights problems were presented
merely as teasing unsolved conundrums. For instance: I and a companion
go into a forest; my companion has a loaf of bread sufficient to feed only
one person; it is set down between us. Can I take his bread? It seems not
since it belongs to him by a two-fold right, by positive Jaw since he owns
the bread, and by natural law which concedes to him the use of the bread
when necessary. But, on the other hand, I am more bound to preserve
myself than him, which seems equal to a positive right; and the right
of nature applies to both of us; and the loaf is not actually in his posses-
sion. So I can take the bread, at least to preserve my life. No law forbids me
to do so, and my natural right extinguishes his natural right. But, Mair
concluded, "The opposite is also probable." 14 Medieval philosophers, like
12. Quarlum Stnltnliamm (1519), XCIXv-Cr, "Nominates insectando d icere oportebit
quod dominium rei vel est res ipsa vel rem ipsam possidens . . . conclusio inferenda ex illi.~
praemissis hanc infert, usus est proprietas"; Clllv, " ... diximus quod dominium rei esl usus
vC'I ius ipsius rei metaphysice loquendo: quomodo illud sit verum, cum usuarius habeat ius in
rr, similiter fructuarius et !amen non habet illius rei dominium secundum vulgo loquentes?
Respondetur: sf'quendo principia realium in metaphysica, dicendum esset quod ius funda-
nwntaliter est res possessa. Formalitf'r autl.'m est habitudo et relatio ipsius pos.~identis ad wm
pcKo;es.o;am. Sed no minates 5eCtando rt h"~ n•lation<"' nrg<1ndo s ive reales sivf' rationi" alitrr
d kl.'ndum e!'t quod non o por1l't innlti in hi" m.1tc•riL• diffir ultatibus talibus, ~ loqui "t-cun·
durn m11tNiam subit'<'lllm. N.Hn '""'I'"" dtll11"1l1• 1°•1 nlh,.. imrno 11111110 diffkiliu" applk .ir(•
malcri,im J f' qua k>quimur "''i" pu..lllnn lhu" 'I"""' 11umln,.lll:>11N. . . ."
t:l. Oomingo de Solo, />t' i11otll/11 fl l urr C ""''"n"'" "· I t;'"oti). 4 1. 1. 2KO, " Hot· v1•nrmlnnwn
.ulmntwrt· non pr.wtt·rlt..>, 111 phll11•1111'hl •'""' ""I l•1., l1111 u lllM ·1i•m1ini,.t11rum lc><111111l1111rN
l'<'IJl•I~ c•nlm 1111.tin' f1•r1tl 1l11111h1l11t11 tt1111l t'••I' ""' r111111111 vrl r1111itl'nt "
14 Llt1111h1111S.-11lrnll1m1111 11'1111). "' Vllv
242 THE IDEA OF NATURAL RIGHTS
modem ones who indulge in "thought experiments," were no doubt try-
ing to clarify real issues by the imaginary situation~ that they concocted;
but an unfriendly critic might see an argument hke the one above_ as
merely an example of the kind of scholastic quibbling that t~e huma~1sts
would soon try to laugh out of existence. It was the sort of thing that Vives
liked to make fun of. And Erasmus was studying at the College de Mon-
taigue in Paris in 1495, when Mair was also_a student there. . person of the right-holder and extending to the thing in which he had a
John Mair was a master of formal logic. He has been descnbed as a
major figure in a "glorious flowering" of logical studies at the end of the
Middle Ages.15 But when he turned to practical problems of rights and
duties his logical virtuosity seems to have been more hindrance than help.
SUMMENHART. RIG HTS AND OOMINION
One might make the same critidsm of Mair's younger con~empor~ry,
Conrad Summenhart, though it must be acknowledged that, m the first
pages of his major work, Summenhart provided an_ exceptio~ally careful
and perceptive theoretical analysis of the concepts inherent m the wo_rds
ius and dominium. Summenhart began his influential book, De contmct1bus
16
licitis et illicitis by quoting Gerson's definitions of these two terms. For
Gerson, ius was an immediate power or faculty pertaining to anyone ac-
cording to the dictate of right reason (or according to the dictat~ of original
justice). Dominium was an immediate power or faculty of taking external
things under one's control for licit use according to rights and laws ra-
tionally instituted. Summenhart first asked whether these were sound
definitions and eventually concluded that they were. He gave the reader a
foretaste of his scholastic methodology by explaining that the answer to
his apparently simple question would consist of four suppositions and six
conclusions with one corollary.
The first supposition presented an important two-fold definition of
the word ius, a definition that is not found in Gerson:
Jus is taken in two ways. In one sense it is the same as law (lex), as when
we say that the precepts of God are divine law (ius divinum) an~ t~e
statutes of emperors are civil law (ius civile) . ... In another sense ms 1s
taken to be the same as a power as when we say a father has a right as re-
gards his son or a king as regards his subjects, and men have a righ~ over
thejr things and possessions and sometimes also over persons as m the
case of slaves... .17
15. A . Broadie, ThtCirdtoflohn Mair(Oxford, 191\!i), 2"6.
16. Summenhart, Dt rontractilm~. ) . llll' work W.111 find ruhhiih<-.1 in 15(10.
17 Dr contraclibus, t, · rrim11 ll11ppo111tl11: '"'' 0·11pll111 1l11pll• lh•r. Vno mo..lo p mut ld<·m est,
quod j<'X, quo modo ac-d pitur, n1111 oll1 lm11•. 1""'' ' r1•tr1 I lrl ..-· lu" 1ll11ln11m, & nnuolilutiont'!I
imJ'<'r;ito nim c'l\.'tt' iu" duill", v••l lr11l"''''"'" .,,'I""''!'""'"
Altu "''"'''"' drllur h 1• vi 1.to•m , •
Al.MAIN, MAIR, SUMMENHART 243
As I noted earlier, Marsilius of Padua had presented a similar distinction.
Summenhart gave it a new currency. From this time onward a distinction
between the "subjective" and "objective" meanings of ius became a char-
acteristic feature of early modem rights language. Summenhart next went
on to provide a more detailed definition. He explained that a right (ius in
the second sense) was to be understood as a relationship founded in the
right, and to his actions in regard to it.18
In his next argument Summenhart set out to defend the view that the
words ius and dominium, right and ownership, meant essentiaJly the same
thing. Everyone agreed that dominium was a right; Summenhart wanted to
argue further that every right was a kind of dominium. This issue seems to
have been a legacy from the old Franciscan poverty dispute that took on a
new life after Summenhart revived it. Marsilius of Padua had explained
that, although ownership was a right, not every right implied ownership.
Hervaeus Natalis and Bartolus had made the further point that a right-
holder could be said to have dominion over his right though not always
over the property to which the right pertained . Summenhart now wanted
to argue for a closer identification of ius and dominium. He acknowledged
that, if dominium were taken in a narrow juristic sense, there were various
rights, like use and usufruct, that did not constitute ownership. Also, taken
in a strict sense, dominium implied some kind of mastery or superiority;
but an inferior could have a right against a superior, a son against a father,
a wife against a husband. So again to have a right was not the same as
having dominium. (lbis argument had been presented a little earlier in
the popular Summa Angelica of the Franciscan, Angelo de Clavasio.) But,
Summenhart continued, dismissing these objections, he was not accepting
dominium in such a strict sense; there was a broad sense of the word in
which ius and dominium were indeed interchangeable. His "proof" of this
was based on a standard definition of the crime of theft-"to take an-
other's thing against the will of the owner (dominus)."
Whoever has a right in any thing can be called the dominus of that thing;
therefore his right can be called dominium ... for if someone has a right in
.• a thing and the thing is taken or snatched away against his will then the
las, quo modo accipitur, cum dicimw• pnln.•m habere ius in filium, rcgem in sull<liht!l, &.
homines habere ius in rt'bu~ & p<>J01HC'P1.~ionlhm1 !iUi.•. &. e liam in pcrsonis aliquando, pula ln
sc.. ruis. .. . ~~
1
18. Ibid .• HEt diff<'ninl illiw 11<'0-..ptlutlC'• 1111111 Im• ,...,·11ncln modo <.>st reh1tio M.'U lmtiitu<ln
lundata in illo, qui didlur h11l•l'1' ht•, Ao lo1111tn"I'" In n•m, in quam, vt'I In q1111 h11~t ht'
'·"''l"''m ;,d tt·rminum l'l'rnohmt A. 1111111111111""'· 'I"""' llfllN•I r•wn·t•n• In ttilt•m n•m, v1•l dn·11
'""" 11111•1""'" ml t11·rm11111m 1•11111111111111111 ··,.."11.r·
• I hi• I• tlu· 1l1>1"1rhw ul rl.iht• llu111 M111lr
o-rilh"l11•1I
244 THE IDEA OF NATURAL RIGHTS
taker would be said to have committed theft, and if so he has taken
another 's thing against the will of the owner. This follows from the defi-
nition of theft. And so the one who had a right in the thing could in a
sense be caJJed the dominus of the thing.19
As Richard Tuck observed, this is "a pretty bad argument." The thief stole
the thing from its rightful owner. If he stole anything from the right-
holder it was his right in the thing. The argument proves, if it proves
anything, that the right-holder was the owner of his right, not of the thing
to which the right pertained. A little later, Mair pointed this out in refor-
mulating Summenhart's argument. Summenhart himself seems to have
half-grasped the point when he repeated his argument at a later stage of
his work. There he wrote that a person with a right of use was "in a sense
the owner of the thing or of the use of the thing." 20
It is hard to understand what Summenhart's purpose was in intro-
ducing and defending such a dubious position. One might think that he
was trying to frame a logical argument that would explain the current doc-
trine concerning a vassal's right in his fief. (The vassal was said to have a
kind of dominion-" utile dominion" as opposed to the "direct dominion"
of the overlord.) But this was not Summenhart's point. He acknowledged
that there could be use or usufruct without any legal dominion, either
"utile" or "direct"; but he still argued that these rights implied a kind
of dominion in his broad sense of the term.21 Tuck suggested that Sum-
menhart was arguing here for an active rights theory against a theory of
passive rights or claim rights, but (as noted below) this does not seem to
have been his purpose either.
Clearly, Summenhart's need to pose the issue of ius and dorninium
arose from his concern as a moral theologian with the problem of theft.
It was important for him to establish that there could be theft of rights
as well as of material things. But it was already well established that a
right-holder could be considered the owner of his right and could not be
deprived of it "without fault or cause" (as the canonists often noted). Sum-
menhart's further argument seems only to complicate the issue unnec-
essarily. One is left with the impression that Summenhart was interested
19. Ibid., u5ec1 ita stride hie non accipiemus. Quod autem possit ita large accipi, vt conuer-
tatur cum iure probo: quia quicunque habet ius in aliqua re, potest did dominus illius rei:
igitur iUud ius poterit did dominium. Consequentia nota, antecedens probatur: quia qui-
cunque habet ius in re: si ei surriperetur, vel subtraheretur, res ilia eo inuito, surripiens
diceretur furtum commisisse, & si sic, ergo !'lurripien.• conlrt'C°l.1uit rem <1lienam inuito
domino: tenet consequentia per diffinitiollf'm furti. F.t ~r <:t>nlW<lllt't\~ illt•, qui habuit ius in ca
re, poterat aliquo modo dici domi111111 illlu" l't'I.°" l'nr tlw dvll 1.,w Jl'finition of tht•ft S('C inst.
4.1.6, HFurtum autem fit . .. nun 'l"I" .u..11•111 n-111 l11vll11 il11mlno n111tn.,·t11t.H
20. OrC11ntr11.-li/m.c, 2"1
2 1 lhlti . I,·• dvllltrt h>1111•111l11. 11lh111I• 11..1...1 h1• ht u• .. 11o11101, 111 """"' 111 11h•1hlt1n•1.111.
v1•l 11"11fr111·t11111 11111hllllPll111111 h11l"'I tl11111t11t11111 tlllu• trl. Ur• 1lhn turn IU~ 111111• "
ALMAIN, MAIR, SUMMENHART 245
mainly in exploring all the possible implications of the terminology that he
found in Gerson's definitions, the starting point of his argument. But once
he had raised again this issue about ius and dominium it continued to be
discussed by other scholars, among them Mair, Sylvester Prieras, Vitoria,
De Soto, and Molina. Sylvester Prieras defended a version of Summen-
hart's position,22 but the later scholastics more commonly rejected it and
~turned to the older point of view that a right-holder had dominion only
m the sense that he owned the right itself.23 Jn this form the argument lived
on in seventeenth-century discourse.24
Summenhart's careful analysis of Gerson's definitions sometimes
led to more interesting results. When Gerson wrote of a right as a "faculty
or power" associated with reason and synderesis he seems to have under-
stood ius as a power of the soul, an ability to act justly in accordance
with reason and conscience. Earlier, we noticed that the medieval canon-
ists used very similar language in defining ius naturale. But Gerson, and the
canonists too, assumed by a sort of metonymic association, that the ius they
so defined also meant a power to have or do something. Summenhart,
I think, was the first to comment directly on this point. Referring to Aris-
totle's De anima he wrote that a force (potentia) or power (potestas) of the
soul could be understood in two ways; first as a reality that elicited actions,
and in this sense the potentia was something absolute and not a relation-
ship; or it could be understood as a disposition (habitudo) founded in this
~rimary reality. Understood like this, the potentia of the soul was a disposi-
tion toward some external object and to the actions it could produce con-
cerning the object. In this sense the potentia was a relationship. And this
is how we are to understand Gerson's meaning, Summenhart argued.
When Gerson wrote of a faculty or power he was not referring to an abso-
lute reality of the soul, but to a disposition toward some external thing.2,
22.. Sylvester Prieras, Summa~ Sylvestrina~ (Venice, 1584), fol. 215r. Prieras argued that, i(
the word dominium were taken to mean potentio, a usage he found in Aquinas, then every right
implied a kind o( dominium. Prieras also held that a son did have a kind of superiority over hi~
father in that he cou ld bring a legal action against h im.
23. Mair restated this position in criticizing Summenhart's argument. Q11art11m Snilrn·
tiorum (1519), fol. Clllv usuarius habet dominium usus et usufructarius habet dominlum
H • • •
usufructus.... " Mair used the terms #imperfect dominion# and #perfect d o minion# to di.1tin -
g11ish bt>tween a right of use and actual ownership.
24. The idea that a person's rights form a part o f h is "property" is pervasive in l..ockt•. A
"'"''"" hilt diffol"l'nl re<1ding of tht' n'lation,.hip l>t'twrt'n i115 and dominium in Summt'nhtirt 1~
1•rt'S<'n1t-.I in Bn:'tt, Ubrr-ty, Rixlit n11d Nt1t11rr
2~ I >r Cm1trnr li1'11.<, 2, " Polrnti,,, !0<•11 I"'" '"'''" iuurn111' ,·,1pilur dupliciter. Vnu m o.Jo"'''"'
1i.1li1t•r s.•u fu nd11m1•nl11lih•r pm rr111ll11I" 1111111111•• rlidt111.t .1du11m, quom<>do potmli11 "'llm11r
1·"1 n -s .1!is<1l11t;l, & non n•l11ll..- •1111111111111 1rl11llu 11"111••1 ••11tlt.1• l'lk iti1111. Alio m0tfo fnrm,,111 ..1
I. prn J'<'r ~· ~iKnifknh1, & Rh° NII htd•lhulu "nl111"1• l1111tlnti\ In tnll n•nlitrllr, q11 11m h:ihltml lnrm
1..,1.,.1 .mlmn n.t 1•hh•1·t111n o\ 111 l11• 11111•l111 ll•llt1• 11 "" t II•" o l •I,.. 111111. & """ l'<tlf'ntlfl ,.,., rrl11t111 •·
'i11111111<•11h1trl w01" lwn· 1•11•,llll ""'"'· ht 1111111•1 • "1111lto•1 1..i.11111, n ~'""'""''Yul rnrllrr nq~ 11
11w11lflllt111 on lh•· ll11•ury 11f th.. -.1111 111 ~tl•lutl" •I Ir,,,.,,,,,,
 THE IDEA OF NATURAi. RIGHTS
246
Summenhart thus understood a right as a power that gave rise to a re-
lationship between a person and the object of the right.
Summenhart next considered the significance of the two words, po-
testas and facultas, in Gerson's definition of a right. A simple power,
potestas, could be exercised licitly or illicitly; but a faculty-since the word
was derived from /as-always implied a licit action. Summenhart con-
cluded, moreover, that Gerson's final words, "according to original jus-
tice," also served to limit the meaning of potestas to a power that could only
be exercised licitly. The right associated with such a power was "what we
can do by right or licitly," "a power of li~tly d.oing som~thin~.'~
When he considered the word propmqua m Gerson s defimt10n, Sum-
menhart emphasized that a right must be a power "at hand," available for
exercise. Thus a sinner had a power to merit beatitude by e ventually re-
penting for his sins, but this power was not a right because it could not be
exercised in the sinner's existing condition. So too "the least star" had the
potential to give out as much light as ~e s~, bu~ t~s could come about
only if God so ordained; so it was not a nght inhenng m t~e star. The wor~
potentia could mean a force or power but, in metaphysical language, it
could also mean a mere capacity to receive or be acted upo~, a sort of .re-
ceptivity. Summenhart's point was that a right could not be JUSt a passive
potency of this kind. GerS<m's choice of the words Jacultas and potestas, he
argued, could only refer to potentia in the active sense of the w~rd. •
11
The next phase of Summenhart's argument was a long d1gress1on on
this theme provoked by some further words of Gerson. Not ev.erything in
accordance with right reason was a right, Gerson noted. For instance, to
receive a punishment, like the pains inflicted on the damned, could not be
called a right. But then Gerson added that, nevertheless, this underst~d­
ing of a right was not altogether alien to scripture. As an exam~le he c1~ed
I Kings 8 which used the phrase ius regis ("right of the king") m referrm~
to various afflictions that were to be visited on the Jewish people by thetr
king. Also, Gerson added, the demons had a right to punish the damned.
Summenhart objected to the suggestion that a right could ever be con-
sidered a mere passive capacity to receive punishment; so he. argue~ !hat
Gerson had misconstrued the scriptural text he cited. The ius regrs m 1
Kings 8 d id not refer to a right of the people to ac~e~t pena lties but to the
king's faculty or power to take their good~ for.h~s hc1t m;~._H was ~ere­
fore a power wholly in accord with Gerson s ongmal defimhon of a nght.
26. Ibid., " ... facultas enim ut a fas d<.>rivatur, connotat licite . . . quod d e iul"l' !l<.'U quod
lidte possumus ... potestas autem :teeundum clktnml'fl prim<W iu~titiae alicui convcniens ~t
potestas lidte agendi aliquid." . . . .
v.Ibid., uNam faculta1uilgnUici1I pol<'nll"m Adlw ,... hAh•·nh'lth'm. 1.t•. polt•nltam ah~m.I
agmdl circa allquld. Slmlillrr rl pc•lr•ltt~. "' prof'rlr •·ttpltttur, NIK11lfk1il Mntum pt h •1111.1m
1
actlvt' lM' h11t>t-11h•m."
Al.MAIN, MAIR, SUMMENHART 247
If the penalties were to be called rights at all it was in a "material" sense;
they referred to the subject matter in regard to which the king's right was
exercised.28 In similar fashion the tithes and offerings that a parish priest
received were sometimes called his right.29
A similar argument applied to the demons' right to punish the
damned. The demons' capacity to receive their own p unishment was not a
right; but their power to inflict punishment was a just right conferred on
them by God. Summenhart added that the demons did not exercise their
right licitly because they acted out of hatred for the human race. So too,
an executioner had a right to kill a crim inal handed over to him, but he
abused his right if he acted out of hatred or avarice. Summenhart here
was drawing a distinction that has interested some modem rights theo-
rists between the possession of a right and its licit exercise.30
In a final discussion on this theme Summenhart returned to his
argument that the terms ius and dominium in Gerson's definitions were
interchangeable. Gerson defined dominion as a power of taking things
(potestas ... assumendi res) for one's use. But, Summenhart asserted, this
power was already implied by the words potestas and facultas that Gerson
used in defining a right, so again ius and dominium had essentially the
same meaning, for the words potestas and facuftas could not refer to a mere
passive potency. The right they defined was rather a power to act in regard
to something. Or a right was a disposition of the right-holder in relation
to some thing, that could be expressed only by some action regarding it.
Thus a father 's right was a right to act in correcting and directing his
son. Anyone's right in his house was a right to perform acts like entering
or leaving it. A person had as much right or dominion over a thing as he
had freedom of action concerning it.3 1 Summenhart finally noted that a
28. Ibid., 3, "Secundo, quia dato, quod ibi posset acc:ipi ius a liter, quam pro iure supra dl'·
s<ripto · !amen no n oportet accipi quo ad multa ibi posita pro pena futu ra fili is lsra<.>I a suo
rege: sed posse! accipi ibi materialite r pro materia, circa quam ip sius iuris sup ra descripti,
quae materia est terminus ilius relationis, scilice t iuris descripti: unde acciperetur pro rebu.~.
in quas quis habet ius, vel pro adionibus, quas exercere potest circa res aliquas ille, qui dicitur
habere ius s upra d escriplum circa tales res."
29. Ibid., " ... te mporalia stipendia que plebanus praetextu beneficii s u i (quod est speci<'S
iuris supra d escripti) simil iter & acceptiones illae, quibus accipit talia temporalia stipendia, 111
mo rtuaria, oblationes & fructus d ecimalcs praetextu iuris, illa (inquam) & illae vocantur ali·
•1uando iura sua parochialia."
30. Ibid .• " . . . sicut lictor, vel spicul11to r hi!l>c•I ius ot·ddendi reum sibi lradilum, licl'I on-i
.i..ndl> abutatur iure s uo : si <.>x illMritia t•xt·n-rt illu.t oflid um, vl'I ex odio."
JI . lhiJ., 4, " Nam pol<'Sl.ts, vt'I f11rnll11N. •111111• J'ollilur 111.·o ~t'nt•ris in descriptionibus prllt'·
•lie-tis, dl•n ot.il p oll'nti.tm nun p11J<11i1111111 ....i p111h1" h11l1t•nh•m Pit' in rillion<.> agt•ndi, & 1wr
nul.'14.'•lllt'I\~ im1 !'rit p11h•i1111~ p niJ'lll•)ll" "'' "Mr111l11111 11h11111.1 m ill.un n•m, v1•l In 11111 n • N11m
t>rttt'M' i1L• ••11q1..- .tominl11111 l'AI h"l•llt11l11 tllhl•. 111 111111 r•I 1111 n•m ill11111, In •11111m, v1•l In ' I"" 1111
lit•tu r t. hA•'<· h tthl h1<l11 11011 lrrmlu ..1111 1ul 11111111 1<•111 111• 1 ~•·• umlum ttlltl'"'"' ... -111111. v1•I
1tdh>n1•111. •11111111 h11l1t•11• h u• v"l 1l11111l11h1111 h11l ... 11•" ' ' ' " " ' '" 111.. 111. v1•l l11111.. rr l'"·mpl11m. " '"
248 THE IDEA OF NATURAL RIG HTS
person could be said to have a right in regard to himself, a right of liberty
understood as a power to act as one wished within the limits of the law. He
added the usual reservation that this liberty did not include a right to
injure or abuse one's own body.32
Summenhart's argument therefore yields a complex understanding
of a right as a faculty or power that implies a relation to some external
object, specifically a freedom to act on it in some way. Similarly a right over
one's own person was a liberty to direct one's own actions. In a subsidiary
sense ius could refer to the right-holder 's actual exercise of his right or, in
a "material" sense, to the object of the right. This is clearly a doctrine of
subjective right conceived of primarily as a liberty, a freedom of action in
relation to other persons or things. Further on, however, Summenhart ap-
parently contradicted his own argument when he assumed (following
Gerson) that the words ius and dominium could be applied also to inani-
mate creation and to irrational animals, creatures that acted out of neces-
sity, not through free choice. "The heavenly bodies have the right of exer-
cising various actions," he wrote. "Also the subcelestfal bodies have many
dominia and rights.. .. " Irrational animals too had a kind of "general do-
minion," consisting in their right to take the food they needed to preserve
life. To Summenhart himself, no doubt, the argument seemed entirely co-
herent, for he went on to distinguish sharply between this kind of right
and the right inhering in humans. "The dominion that pertains to rational
creatures is something different," he noted.11 Only in humans did ius des-
vel d ominium, quod habet pater in filium, est ius in £ilium secundum quod pater potest ex-
ercere actum correctionis in filium, & actum directionis circa eundem. Et ius, quod ha bet quis
in domo sua, est ius secundum quod tale potest exercere illos actus in domo, scilicet ingredi,
egredi, & res suas inferre. Vnde tantum quisque habet iuris, vel dominii in aliquam rem:
quantum actionis licet sibi exercere circa rem.·
32 Ibid., 4-5, · similiter Hbertas est quedam species iuris, & illud ius habet liber in seip-
sum scilicet agendi quod libet. Vnde difinitur ius in instituti, de iure personarum. §.1. Est
naturalis facultas eius, quod cu.i que facere libet, nisi quod ui aut iure prohibetur. Et sic liber
·:~
habet ius s uper suam persona m, quamuis non sit dominus membrorum suorum ad ea ab-
scindendum, aut ad alium abusum, de quo dicetur in quaestio 74." Jn Quaestio 74 (ibid.,
335- 341) Summenhart asked in what way a person was dominus of his own body. Specifically
he asked whether a man could sell himself into lifelong servitude. He conceded that this was
legally possible; but, like Locke, he seems to have been thinking of "dru~gery not slavery."
Summenhart compared the case of a ma n selling himself into servitude with that of the mas-
ters of his own university-they were seeking a permanent stipend from the unive rsit y in
return for an undertaking not to I.e ach elsewhere (ibid., 339). Sum men hart acknowlroged that
there could be involuntary #despotic# slavery but he associated it with puni~hm<'nt for crime
or for participating in a.n unjust wu.
33. Ibid ., 23, "Corpora enim l't·~ti11 h11l>c•nl iu,. v.iri.t." .1<'lio11M1 l'Xt' IX"l'lidi. .. . Corpor.:i
etiam subcclestia habenl mult11 tlominin ••I hir" l'I 1111hn"ll" lrmti11n,1lia, quonim K"rwralt•
dominium t'~I iu~ 1u..-ipk·11tll r10t•11111 ....,,. vll11r • """"' vnlll<'m Altud 1•1<1 tlnmlni11111 •111tx l
nmvl>nil .-rt•11h1rn1• ralk>r111lt ··
ALMAIN, M AIR, SUMMENHART 249
ignate a liberty, a freedom of action; but Summenhart's application of the
same terms, ius and dominium, to both irrational and rational creatures per-
petuated a confusion concerning the proper meaning of these words that
later thinkers, beginning with Vitoria, had to address. Summenhart's argu-
ment here was a sort of aberration from the mainstream of thought that
eventually led on to modem theories of natural rights.
Summenhart was evidently presenting a theory of active rights. But
here again we need to distinguish his own meaning from a common
modem understanding of the term. Summenhart was not arguing about
active rights as opposed to passive rights in the manner of modem schol-
ars like David Lyons or Richard Tuck (who took over Lyons' terminology).
These modern authors are concerned to distinguish active rights from
passive rights when the latter are understood as claim rights or rights of
recipience. Fo r Lyons a passive right is a "legitimate claim" that a person
"can press or waive as he chooses."34 Summenhart (like medieval authors
generally) fully acknowledged the existence of such claim rights. In the
passages we have considered he discussed the right of a king to receive
revenues from his people and of a priest to receive tithes from his parish.
Elsewhere he often used the phrase ius percipiendi to indicate a right of re-
cipience.JS Summenhart wanted only to argue that a right could not be a
sort of empty receptivity, a mere passive capacity to receive something
without any legitimate claim to it. Again, it is hard to see why Summen-
hart thought it necessary to make such an argument at such length; no-
body, so far as I know, had defended the opposing point of view that a
right was a mere passive potentia.
Nonetheless, Summenhart's argument so far can be considered a
valuable contribution to the elucidation of the concept of a right-a little
abstract perhaps, not always entirely persuasive-but still sophisticated
and interesting. However, Summenhart's analysis d id not stop here. The
definitions and distinctions we have considered so far were only the start-
.
ing points of a more intricate argument; there were many, many more of
.- them still to come. And, as the discussion moved on to deeper and deeper
levels of complexity, it seems to become more and more remote from any
real problems of the late medieval world.
34. D. Lyons, "The Correlativity o( Rights and Duties," N ous 4 (1970): 45- 55 at 49. ~
Richard Tuck, Natural Righls Throrirs. Their Origins and Dcvtlopmrnt (Cambridge, 1979), 5 . If
WC' look for a modem analogue, Summenhart'~ aMlysi,oi, wilh its e mphasis on the status of th«>
right-holder, the rela tion o( the ril(ht-holllf'r tu lhl' c>hit'<I o ( the right, and the bundle o f e n-
litl(•ment!I included in the righl, might rC'mh1<I 11M of 1lw righl~ theory of Johan Van dt'r Vyvn
S."t• his articl<·. "lnc Dodrirw of l'rtv.,lr I Aw Right..," In S. A. Stmu!'ll ed.. lluldixung/ibund~I rirr
W J\ . fnu,,,.rl (llurhan, 1111111), 2111 24f\
1'>. l'or ;,,, prrl"i11irmli ,..., ..,.,,...·1111ly I•••'"''"' 111'11•. 1)1 :to. ~1111mwnh,1rt 11IM1 nrKlll'tl ho•n•
lhftl to 1•vf'ry ri11hl llwro• W4•" 1111 '""I"'"'""" 1ol •llic11lln11 • I II\) .,n,t 11>11vrf1M'ly lhlll "" nllll~a
llnn (ha""'' l'<'~M•n) imp II"' I" 1lj11hl 111111rn1tlw1ICI1111
 THE IDEA OF NATURAL RIGHTS
250
Summenhart continued to present his argument in the form of an
exhaustive scholastic analysis of Gerson's terminology. Having suggested
that the terms ius and dominium might be interchangeable, he next in-
quired about the different kinds of dominion and the rights associated
with them by taking up various classifications that Gerson had proposed
and asking whether any of them provided an adequate set of definitions.
The first classification offered a six-fold division of dominion into beatific
dominion, original dominion, gratuitous dominion, evangelical dominion,
canonical dominion, and political dominion. Summenhart considered each
in tum. He pointed out, for instance, that beatific dominion, the dominion
of the saints in heaven, included a right of their glorified bodies to pass
through common gross matter without resistance and to occupy the sa~e
space as ordinary matter, even though it was.na~ural for a body to rest.st
the occupation of its place by another body. Tius nght could be called a gift
of subtlety. Also included in beatific dominion was a right that some_of
the saints possessed to cure particular diseases, or to control the behavior
of fire and water. After these preliminaries Summenhart gave his own
definition of beatific dominion: " It is a dominion immediately from God
belonging to the blessed by reason of their beatitude a~co~ding to the_la":s
of glory or beatitude, justly belonging to many and mahen~ble wh~l~ m
beatitude."36 Next he commented in detail on each term of his deftmhon.
Then he went on to consider in a similarly exhaustive fashion all the other
branches of Gerson's six-fold classification in twelve columns of closely
packed argumentation. . the rights that Summenhart has discussed so far, have no bearing on such
In the next Quaestio, however, Summenhart tells us, m effect, that
all this was for nought. Gerson's classification was inadequate for six
reasons. It dealt only with the dominion of creatures, not with that of the
creator; among creatures it dealt only with rational creatures, not irr~tional
ones; among rational creatures it dealt only with humans, not w1th de-
mons; among humans, it failed to deal with natural dominion. Also ~is
division did not include the dominion implied by the power to work mir-
37
acles or the dominion granted by Mosaic law.
Gerson's second classification presented a three-fold division-do-
minion based on the title of sanctifying grace, on the title of supernatural
grace freely given, or on the title of som~ purely natural ':lualification like
election or succession. Summenhart again carefully examined the terms of
the classification and again found them inadequate. It was the same with
Gerson's final classification, a straightforward division of dominion into
three kinds: divine, natural and human. The fir.;t krm ought to have been
divided in many ways, Summrnhart cnrnplaint•tL (He went on to suggest
36. lJr ro11I rad ilms. S.
:l7 llii·I.. 1q
ALMAlN, MAIR, SUMMENHART 251
nine divisions of divine dominion.) Moreover, "this mode of dividing
ought to show how the first four species of the first mode of dividing could
be reduced to the first member of the third mode-which it fails to do.".34
Then at last Summenhart gives us his own answer to the problem he
has raised. There are, it turns out, no fewer than twenty-three kinds of do-
minion with associated rights; and, except for the last two, each of them is
a subdivision of one member of the preceding division.)9 I am presenting
here only the barest outline of an argument that traced out many obscure
pathways of medieval thought. Summenhart succeeded, for instance, in
presenting Aristotelian physics in the language of natural rights. (Every
element had a right to its own place in the universe.«>) And he was very
interested in the rights of demons. Were they a form of legitimate domin-
ion or not? As we work our way through the twenty-three distinctions
and subdistinctions we may seem at times to be wandering in a medieval
labyrinth; but we assume that all this material must be mastered if we are
to understand the substance of Summenhart's treatise that is to follow. At
the twenty-first d istinction, however, we are casually told that the whole
of the subsequent work is to deal with only one kind of dominion, namely
civil dominion.41 We suddenJy realize that nearly all the material we have
toiled through so far is irrelevant to what is to come, the discussion of
various problems concerning licit and illicit contracts in civil law that will
constitute the body of Summenhart's work. The rights of the glorified
saints and of the demons and of irrational creatures, and in fact nearly all
matters. The labyrinth leads nowhere.
When we read Ockham on rights and dominion his arguments often
grow intricate; but we sense behind all the intricacies a passionate will of
the Franciscan to defend the doctrine of his Order and to bring down the
JS. Ibid.. 22, " . .. quomodo deberent rrouci quatuor primae species primi m odo dividendi
.,d ml'mbrum primum huius tertii modo, quod non tacit."
:w. Ibid ., 23. " Primo, quartus modus dividendi ronti net 23 divisiones. quarum sempt"r
posterior est subdivisio unius membri praecedentis divisionis demptis duabus ultimis divi-
siunibus."
40 lliid., " Corpora e nim celestia habent ius varias actiones exercendi ... et quodlibct E"k•-
nwntum habet ius occupandi certum locum in uni verso . . ."
41 Ibid., 25, "Et quia de solo civilc dominio <>st nobi.~ ad pmpositum in hoc trac tatu, ideo
1ll11J cnn~uentl'r subdivid<'fldum N<t." <lnr m i~ht h<- r<'mindcd here of thE' numerous ddini·
I 1111L~ of 111.< givl'n much l'arli<'r liy tlw 1·,1111111i.•l loht1111u•" Mona.·hus (<1bove, 4H). ffut Johannt':'I"
pnrpc>St• wai; difft>rent. 1 le w.1~n>1w••nwcl 111 provt.I•• "l"·dh« d t.1lioni; to illustralt• tll(• difft•r·
""' 11s.1J1,1"S of lht• word 111.< in R11111tt11'""''11110111< 11l (11tl•f •llu li•m"t•. I lis m<'aninK" W<'n" t>llt'!I
th,11 .1 pr.11"1ic,1I jurisl miKhl 1•1wo1111h•1 1111111' • n111 I• nl l11w ~; 1111111u·nh.1 rt 'i; arJ1.11m1•nl wa" mnn•
' l""·11l,1llv1· 1h•1h•fint'tl ''"""' lwl'l1ly • h1•I• ul 111111111111111 /~•hit"• tlU' •lnmlnl1111 of dvll 11rnl
• ·"'"" l,1w Still."'"' 1·u11M ""Y uf lu h1t1111t•• M """ ' huo ""' 1h,.1 Iii• tt11111mr11l 111,.rl.r<I tlu• t•rnl
point nl "'"" ~ 11ut ..1 • .111u11l•th "'"'IV•I-, 1111 " "" O'Yf'I II h••l 1", 1111 y II 1rny l11rtl1<•r
252 THE IDEA OF NATURAL R IGHTS
pope who had attacked it. Summenhart seems to multiply comple_x~ties
merely for the sake of complexity. We understand now that the wntings
of late medieval theologians and canonists were not so sterile as the hu-
manists liked to suppose; these writers made significant contributions
to economic thought in their discussions on the morality of commercial
transactions. The substance of Summenhart's treatise was indeed a useful
summation of such material that was highly regarded by his contempo-
raries. But still, twenty-three kinds of dominion! It is too much.
A connoisseur of late scholastic writing might admire the architecture
of Summenhart's argument. But it is like the architecture of a late gothi_c
church, filled with intricate craftsmanship and fretted stonework, admi-
rable in itself perhaps, but marking the end of a tradition. After a French
flamboyant cathedral there was nowhere further to go with that style of
building. And after Summenhart's twenty-three divisions of domini~n
there was nowhere further to go with that style of argument. No one did
try to go beyond Summenhart' s twenty-three distinctions. Instead, half
a century later, De Soto deplored his predecessor's "gratuitous" multi-
plication of terms.ti It was time for a new paradigm; ~~d, of c~urse, a. new
paradigm was at hand in the literary culture and political phdosoph1es_of
the Renaissance humanists. To them, the writings of the late scholastics
seemed barbarous, clumsy, and empty of meaning.
ANEW AGE
There was no certainty that medieval rights theories, embedded as
they were in scholastic treatises, would survive in these new circum-
stances; for a time such theories seemed out of touch with both the po-
litical realities and the intellectual culture of the age. In the era of the new
monarchies, people everywhere reacted against the disorders of the ea~ly
fifteenth century-schism in the church, civil strife in several of the maJor
kingdoms, a destructive war between England and France-and showed
themselves willing to lend their support, even to pay heavy taxes, to any
ruler who could establish some degree of peace and orderly living. There
was much talk then of "the overmighty subject'' and less concern about the
dangers of absolutism. People complained more about "lack of gover-
nance" than about lack of rights.
In the intellectual sphere, the emerging humanist culture was al~ not
receptive to the idea of natural rights. Humanist authors emphasized
above all the duty to uphold the common good; many of them served, or
42. IX iustilid d iurt, 4.2.1, 2116. Pl• Soto n•tnnw<I h• II l'C'lnllvc•ly ~im plc divl~ion of domin-
ion into three l<lnd11, natu.-.1. Jlvinc'. 111111 h111111rn, with 11i.. 1111tc•r 1llvl1lt•1l lnlo tlominlon from
civil law imd from c·nnnn l11w.
Al.MAIN, MAIR., SUMMENHART 253
wanted to serve, at the courts of the great rulers of the age. There is no
talk of natural rights in Machiavelli's Prince or in Thomas More's Utopia.
In considering the survival of natural rights theories we need always to
remember that it is perfectly possible to construct coherent systems of po-
litical thought without appealing to such ideas, and that, indeed, in any
universal history of political doctrines, theories grounded on rights would
appear as exceptions rather than as a norm.
Machiavelli and More were contemporaries of Summenhart and Mair.
The university masters, surviving representatives of a medieval scholas-
tic tradition, seem out of place, in some ways out of touch with reality,
in the new world of thought and action that was growing into existence.
The "silver-age" conciliarism of Mair and Almain, lacking the real zeal for
church reform that had given life to the work of Gerson and his contem~
raries, was becoming irrelevant to all that was most vital in the life of the
church in the sixteenth century. When new movements of Catholic reform
grew up they sprang from different sources. As for natural rights, we
encounter a considerable body of technical argumentation about ius and
dominium in the writings of around 1500; but too often it seems to degen-
e rate into a mere scholastic wordplay that was drifting away from any
constructive engagement with contemporary issues. Unlike the writing of
Ockham and Gerson on rights it does not seem addressed to any particular
purpose. A humanist contemporary of Summenhart and Mair might have
seen the whole tradition of natural rights as just a murky stream of me-
dieval thought that had finally petered out in the sands of a barren scho-
lasticism.
Things turned out differently of course. The events that shaped the
actual course of history in the sixteenth century, especially the Protestant
Reformation and the European encounter with America, ensured that this
would be so. Silver-age conciliarism had a significant after-life in secular
constitutional thought, particularly in the works of Protestant resistance
theorists.c And the discussion of natural rights, the theme that particularly
concerns us, was revivified in the Spanish debates that followed the dis-
covery of America. Quite suddenly, the late scholastic musings about
rights and dominion became relevant to problems of worldwide signifi-
4J. On this theme see F. Oakley, " On the Road from Constance to 1688: The l'olil ica l
Though• or John Major and Grorgr Buchan01n, fomrnal of British Studies 1 (1962): 1-:l 1; i.lt•m .
H
" Figgis, Co nstanCt', and the Uivin1.,. of l'Ari.~... Amrrrm 11 Historical Review 75 (1%9): :lnt; llh.
lne Protestant wformt'rs' •·mrh11Ni~ 011 "'"""'' olt•pr.ivity wa!< not at fir:<t c1m1lud vt• to ,.
"row th of natural rights tlworl..,. 11111 thr hAr•h ··~····r h·no ··.,. of tlw w.,r!' of Rdiginn .mtl 111 lhr
English Civil War !'ti11111la1c.. 1llrKt1111r11I• fur rrllKh•n• tnlrr.1!1011 and t•vc•nt11111ly l1'll tn lhl' 111·
knuwl..<lgm1•nt of frn-.ln111c•l 1..llKlnn """ """" "' ''Kht l >11 thl• ,..... my " Rc·llxl1111" IOxht": /\t1
I li~l ork.•l l't·r~pc-.·lh11•," hi I With•""''' Y10 11 l•1 Vyvt'I . . ..... l<r/1.11l1111N ""'"'"' 1<1.-<'' ' ill c:f11l'fll
l'1'"f"'•·l11'<': Rr/1.'<"'"·' l'rr•1,..,·111¥• ii ~111111•1 hi l!l'J'll. I'/ 4'1
 254 THE IDEA OF NATURAL RIGHTS

cance that would persist into the modem era. Can the domination of other
peoples by Western colonialists be justified in any way? What are the
rights of "backward" indigenous peoples? Are any of them natural slaves?
Are some human beings non-persons? Does everyone have a natural right
to liberty? to property? to sell-government?
Since Innocent IV wrote his classic text in mid-thirteenth century it
had often been maintained that infidels had legitimate rights; however,
the infidels that canonists and theologians chiefly had in mind were Mus-
lims, people as advanced in civilization as themselves. But naked savages,
idol worshippers given to human sacrifice and cannibalism-for that was ELEVEN
how American Indians were often described to European audiences-
could they have rights too? Could there be truly human rights, rights that
inhered in every kind of human being?
For a first answer we might take a final glance at John Mair. One of ARISTOTLE AND THE AMERICAN INDIANS
his texts illustrates a theme that has been much discussed by modem an-
thropologists and occasionally by historians-the disinclination of many
peoples to enslave their own members, those belonging to an in-group,
while feeling no such compunction as regards outsiders. 44 Mair acknowl-

I
edged, in conventional fashion, that slavery could be a legitimate institu-
tion since it was recognized in Roman and Jewish law. A person could sell
himself into slavery, or be enslaved as a punishment for crime or for taking
part in an unjust war. But then Mair added a little paean to human liberty.
It was abhorrent, he wrote, that human beings, rational creatures whom
God had commanded to look on heaven and raise their faces to the stars,
should be sold like cattle. And he praised the custom of his native Britain
where such servitude was no longer practiced.45
That is one side of Mair's argument. But when he commented, in an-
other context, on the natives in the newly discovered Indies, he simply
wrote that Aristotle's theory of natural slavery was now proved by expe-
rience:
. .. hence, the first to conquer them justly rules over them because they are
slaves by nature. As the Philosopher says ... it is clear that some men are
slaves by nature and others free by nature ... and it is just that one should
be a slave and another free, and fitting that one should obey and another
command by the innate authority through which he is a master. Ac-
cordingly, the Philosopher says ... that Greeks should be masters over
barbarians because by nature barbarians and slaves are the same.46
It was the starting point of a great debate.
A ccording to one modern account, the greater part of Spanish
political thought in the first half of the sixteenth century was
inspired by disputes concerning the American lndies. 1 This may seem
an overstatement when we consider the broad range of political writings
from the authors of the "second scholasticism"; but, in fact, even when the
sixteenth-century writers were discussing such familiar medieval themes
as the temporal power of the pope, the universal authority of the emperor,
or the right of resistance to tyranny, the case of the American Indians was
often present in their minds. Agostino Iannarone has pointed out how,
before Vitoria wrote specifically on the Indies, observations on the rights of
infidels in general or the Indians in particular were often introduced into
his earlier works on a variety of different topics.2
< Apart from many such casual allusions there is also of course a very
"' extensive body of writing concerned directly with the situation in Spanish
America, ranging from Las Casas' passionate polemics on behalf of the In-
dians, through Sept.ilveda's rhetorical, neo-Aristotelian defense of natural
slavery, to the formal academic reflections of Vitoria, cool and judicious
in tone, but evidently inspired by a troubled conscience. (In a letter of 1534
Vitoria wrote that his blood ran cold when he heard accounts of the Span-
iards' behavior in Peru ..l) There is also il huge body of modem Jiteratur<• on

44. See D. Ellis, HEurop<>an.q and th<' RI!'(• and F.111 ul J\frk;in Sl;ivc-ry: J\n lnh•rpn·talion," I. J\. I'. Mo nahan, /"mm l'rr11m111I I lullr• ·1111mrrl• l'rr"<•1111/ R~'{hls (Montreal. 19'14). 1411
Amtrican Historical Rnrinu9R (199'.l): IJQQ 1421. 2 "G~flf'Sis dd pt•n11hun,.11lu 11110111•1 '"' l'r•m l•m •Ir Viloria.ff in I.. Pf'rl'l\11 11mt J. M
1'1\rn: l'n·mlt'!I, t"<lit.• /'m111;.,11 ,,, VIImin H,/,, tit•,,, Im/I• (Mn1lriil, 1%7), XXXI XI .I.
4!'. Quart um Srntr11ti11rum ( l~I'>). <"llv
46. 111 ,..~·11n.l11111 Sr11lrnllu1mtt1/Udt..li1•11r• (1'•11 I•, I'• I'I). lul t ·1 XXV llr 1 lhi1I., 117
256 THE IDEA OF NATURAL RIGHTS
the sixteenth-century debate-one recent discussion referred to "the thou-
sand and one" current articles on Vitoria and Las Casas.4
Out of all this rich material I want to abstract only a few lines of argu-
ment that directly concern the concept of natural rights.5 This may seem
to offer only a thin and bloodless approach to a great "struggle for jus-
tice"6 during the Spanish conquests, but there is some justification for such
a procedure. In the end, all the writings on behalf of the Indians did little
or nothing to ameliorate their plight. The battles that were sometimes won
in the debating halls of Salamanca and Madrid were nearly always lost
among the hard realities of life in Mexico and Peru. As a sixteenth-century
Spanish historian wrote, "Great disputes took place among famous jurists,
canonists, and theologians ... yet no good came to the land or the Indi-
ans."7 But, if the Spanish debates did nothing for the hapless Indians, they
did significantly affect the development of Western political theory, and
this is especially true when we consider the theme of natural rights. In the
following discussion of Vitoria's work, I want to concentrate on two main
topics: Vitoria's treatment of the texts of Aquinas concerning right and
justice, and his reflections in the Relectio de lndis on the kinds of creatures-
human and other-that could or could not be bearers of rights. Vitoria's
arguments about sovereignty, the state, and individual rights will be con-
sidered in a later chapter.
VITORIA, AQUINAS, AND NATURAL RIGHTS
Francisco de Vitoria, a principal founder of the sixteenth-<:entury
school of Salamanca, studied at Paris from 1511 to 1523. He could have
heard there the lectures of Mair and Almain, followers of the via moderna
initiated by William of Ockham. H e knew and admired the work of Con-
rad Summenhart, who generally preferred the teachings of Duns Scotus.
But his own master was Pierre Crockaert, a Dominican Thomist.3 While
4. V. Abril Castell6, " Vitoria-las Casas, confrontadon y proyeccion," in C. Soria. ed .. I
diritti dell' uomot IJ1 pace ntl ptnsiero di Francisco de Vitorin t Bartolomtde las Casas (Milan. 1988).
The essays in this volume provide the best introduction, with abundant bibliography. to
the writings of Vitoria an d las Casas. The earlier work of Venancio Carro, La teologia t i los
tt61ogos-juristas esp;iiloles antt la conquisla de Amirica, 2 vols. (Madrid, 1944) is still valuable,
though marked by a certain nationalist bias.
5. For overviews of Vitoria's thought see B. Hamilton. Political Thought in Sixttrnlh·
Century SJ1"in (Oxford. 1%3) and J. A. Fernandez-Santamaria, Thi' Stnll', War nnd Prnu.
Spanish Political Thought in the Renaissana 1516-1559 (Cambridgt>, 1977).
6. The phrase is taken from L Hanke, Thi' Spa11i~h StruxKI" for f11Micr in 111' Co11q11r~t c>f
America (Boston, 1%5). See also Hankt>'s /\ rr~torlr· nnrl thr Amrrimu lmlin11s (Chica~n. 1959).
(I borrowed this title too as a hl'ilding for tlw pn-11t•nl 1·l"'l''"r.)
7. G. Fem.§ndez dt> Ovit'<iu y V.1lc lc'~. ' I"""" ' In I I IAnk•·. All M•r11lm,/ is C>11,- (I >.·Kall>.
Ill .• 1974). to.
8. R. Villc~lada. IA 1111h•rt•l1l111I ofr l'crt t• 1/11,.11111· t1•• r•l111/1,,. ,t,· I 10111< , ., " ,t,. Viloor "'· Ill'
(1.t;(ll l !ilJJ (l<omc•. l'l"IH)
ARISTOTLE AND TiiE AMERICAN INDIANS 257
at Paris Vitoria helped to edit a part of Thomas's Summa theologiae and,
at Salamanca, he used the Summa-instead of the traditional Sentences of
Peter Lombard-as the basic text for his courses on theology.
There is no consensus in modem writing about Vitoria's teaching
on natural rights. In the past, much of the argument was conducted by
Catholic neo-Thomists, but even among them there was no agreement.
Some maintained that Vitoria and his followers, as faithful Thomists, did
not teach a doctrine of subjective natural r ights but adhered faithfully
to the objective sense of ius defined by Aquinas. Philippe Andre-Vincent,
for instance, insisted that Vitoria never conceived of ius as "an ensemble of
individual powers or subjective rights."9 Others maintain that Vitoria and
various subsequent authors of the "second scholasticism" did indeed
teach a doctrine of subjective rights, but only because they allowed their
professed Thomism to be corrupted by nominalist and voluntarist currents
of thought. This was the view, for instance, of Michel Villey; he wrote
that Vitoria "betrayed" the teaching of Aquinas when he attributed sub-
jective rights to the American Indians.10 Writers of both these schools of
thought typically regard the modem doctrine of individual rights as a
lamentable aberration from an older, sounder tradition represented by
Aquinas. Within the Thomist camp there is, however, yet another position.
Influenced, perhaps, by the fact that in modem times the Catholic Church
has come to favor the doctrine of human rights, some scholars maintain
that this doctrine was already implicit in the work of Aquinas and that
the Spanish masters remained faithful to his teachings in presenting their
own rights theories. Teofila Urdanoz, the editor of Vitoria' s Relectiones,
wrote that Vitoria derived from Thomas the idea of "imprescriptible moral
prerogatives or fundamental rights." 11 (Urdanoz referred to Vitoria's " fi-
delity" to the teachings of Aquinas: Villey wrote of Vitoria's " treason"
to those same principles.) Even among the modem authors who write
without any evident ideological commitment, there is still no agreement.
Richard Tuck wrote that the Spanish Dominicans emphasized the objective
.sense of i11s. Daniel Deckers severely criticized his argument, pointing to a
strong doctrine of subjective rights in Vitoria.12 Then, most recently, Anna-
ilel Brett h as criticized Deckers for overemphasizing the "modernity" of
Vitoria's teaching.
To address these issues in a sensible fashion we need to start out from
two evident facts. Aquinas did not teach any doctrine of subjective natural
rights; and Vitoria certainly did not intt'nd any treason to the thought of
q I'. Anti re' Vinn•nt, />nut,,,.~ luolff"ll• rt 1lt'1orl1•1•1or11rr11I ,.,, l\111n1qur lntinr (l'itrl"· 1'171 ). 'i'i
111. M . Villt•y. In /1orn111tl1111cir 111 Jlfll•N /11tl1l l1/llf" t111~/,-11rr, 4th r,f (l'Mil', 1117'1). :itl2. :'6-S tot..
I I r I lnl1111111 in l'N..n11 l'll1N l'1~111 l1J•. I''"'''""' 1lr Vllc11111. XI.VII
17 11l><·•k..1' . 1;,-lf1l1llJtlrll 111111 lf11hl tin, h1o1... 1.,/1 l1111.. 1,, llnt,.,0111'11u11.' l ,,,., 1;,-1rd1
11..!rll•lrhrr ,t,.. ' "''"
1., '"'' Vll1111r1I11111 1'14111 (1'1"ll1111 K. 111111 l. tr~>. 111I
258 THE IDEA O F NATURAL RIG HTS
the greatest master of his Order. It may also be useful to bear in mind that
Thomism and nominalism are not the only possible sources of sixteenth-
century rights theories; there also existed a whole background of me-
dieval jurisprudence-and the Spanish masters are commonly known as
theologian-jurists.
When Aquinas explained the meaning of ius in objective language as
"the just thing itself" or "the object of justice," he did not give a simple uni-
vocal defmition; instead he noted that words are often twisted away from
their original significations to take on other, related meanings. Thus, he ex-
plained, the word ius was also used to mean the art of jurisprudence, or the
place where justice was administered, or the decision of a judge.13 Aquinas
must have known perfectly well that, in the everyday discourse of his own
time, the word ius could also mean a subjective right and that, in contem-
porary jurisprudence, a right was sometimes defined as a faculty or power.
He seems deliberately to have excluded these meanings. It is the same at
various other points in the Summa theologiae. Aquinas acknowledged that
violence could lawfully be resisted but he did not refer specifically to a
right l)f self-defense. He took from canon law the teaching that property
was common in the sense that it was to be shared with those in need, but
he did not ask whether the poor had a natural right to the means of subsis-
tence.14 From Roman law Aquinas accepted Ulpian's dictum that "Natural
law is what nature has taught all animals," but he did not ask whether
animals have corresponding natural rights.15 To a modem reader it might
seem that, at all these points, some further discussion expressed in the
language of rights could usefully complement Aquinas's arguments.
Vitoria already perceived this. Although I think the Spanish master's
engagement with natural rights theory was always related to an underly-
ing concern about the problems of the Indies, his first detailed definitions
of ius as a subjective right arose out of other specific issues that he en-
countered in commenting on Aquinas. When Vitoria discussed the first
part of Aquinas's treatise De iustitia in the Summa theologiae he was content
to accept the definition of ius as "the object of justice" or "what is just,"
together with the related meanings of the word that Aquinas had listed.16
But when, further on in the treatise on justice, Vitoria came to discuss
the Quaestio, De restitutione, he presented a different doctrine of subjective
rights, though still daiming to derive it from the text of Aquinas. The un-
derlying reason for this move was that Aquinas's own definitions of ius
were inadequate for discussing the moral theology of restitution. To make
Summa thmlogiae, 2 ..2ae.57.l .
13.
14.
Ibid., 2.2ae.64.7, 2.2ae.66.2.
15.
Ibid ., 2.2ae.57.3.
De ju~lilia, ed. V. ~ltrAn it.. I ll'rrtll11 h11"111111 l•n• olr v;r,.,,,, l ·,,,,,,,,,.,,,,,,;,t• 11 la Srrnm/11
16.
S«undardr Santo 1oma..4, 6 vol11 (S..l11m101111, I'll) 'IJ). I J 7nr '\7 I, 4
A RISTOTLE AND THE AM ERICAN INOIANS 259
restitution, according to Aquinas, was "to reinstate a person in the posses-
sion or dominion of his thing." But theologians had come to realize that a
person could be d eprived of a right (ius) as well as of a material thing and
could claim restitution of the right. Moreover, according to the common
opinion of theologians and jurists, dominion-ownership-was itself a
right. 17 "There is no dominion that is not founded in a right," Vitoria
wrote. 18 Vitoria's problem, then, was that he could not discuss restitution
adequately without considering the concept of ius as subjective right; but
the definitions that he had earlier accepted from Aquinas did not appar-
ently include any such concept.
Vitoria responded with a sort of verbal jugglery. He first derived a sub-
jective meaning of ius from Aquinas's objective definitions; then he asso-
ciated his new understanding of Aquinas with Summenhart's Gersonian
definition of ius as a faculty or power. Vitoria began by quoting Aquinas's
phrase, " law . .. is the ground of right" (lex . .. est ratio iuris). Vitoria took
this to mean that "ius is what is licit by law."19 Aquinas had not actually
written this, but Vitoria pointed out that he did at one point equate i11s
with iustum ("the just").20 This seems to be precisely the objective defini-
tion that Villey and his school insist on. But, Vitoria continued, Aristotle
had defined "the just" as what the laws allowed; and so he reached his
conclusion, still claiming to interpret Aquinas.
He (Aquinas) says therefore that right is that which is licit in accordance
with the laws. And so we use the word when we speak. For we say,
" J have not the right of doing this," that is, it is not licit for me; or again,
"I use my right," that is, it is licit. 21
But this is not what Aquinas meant at all. Aquinas argued that law indi-
cates what is objectively right. Vitoria took him to mean that law defines
an area of subjective rights. Vitoria was relying here on a concept of per-
missive law that he introduced into his argument explicitly a little further
on. He was treating a right as a kind of license to act within the framework
of law; for Vitoria permissive law defined an area of free choice where a
person was not commanded or forbidden to act in a certain way but could
say, "I use my right."
17. Aquinas h imself used the phrase rus ditminii when discussing l'('Sfitution th<1ugh
the usage is not in accord w ith hi,. earlier definitions o r ius. See Summa thtof~inr, 2.2at•.£.2. I,
- ... secundum jus dominii, ab uno po:<!Cunl ad alium dt-venirt>. -
IR. Ibid., 2.2ae.£.2. I, M , •• ... nullum •·•I 1lmni11111m quot! non fundt'lur in jun.·.·
l'I. /)r j uslilil1. 2.2at•.62. I, 64. "'Ju,. '"'K" •••I 11110.! t•sl lidtum po r lt~ell. r011t•t hut· •·~
o;.1nclo Thoma supril 457, " -' Ml ..., 111hh1111. uhl cit. II 'I""'' h"< non l'jl;t p m pril' j11H. i<t'<I ..,.,
r.1lio juris, i.t e!<t, illml r.11h111t• • 11111• 11ll11111ol •••I llo1111111 ··
211. lhi<l. • ... d ldl 'I"'"' lt1• rl J11ol11111 tol1•111 011111. l r~lr Ar l•loh•l1• .'i l"ll111·11rum; rt J11,.h1m
i1111tl i1!1•m • ·~I •flll MI lq\lh11• ll1t•I *''II" fll• """"' lol1•111 •••I. hi c••I t]lt11tl lt•)llhu~ llc<'I ..
71 '""'
260 THE ID£A OF NATlJRAl RIGHTS
From this point, it seemed an easy step to the definition of ius as a sub-
jective faculty. So far, Vitoria wrote, he had given only a "nominal" defi-
nition of ius;n to explain the reality behind the word he next turned to a
definition that he found in the "noble treatise" of Conrad Summenhart:
"He says then, that ius is a power or faculty pertaining to anyone in accor-
dance with the law.'123 In fact, Vitoria had slightly misquoted Summenhart
here. Summenhart, following Gerson, had written of a power or faculty
"in accordance with right reason" or "in accordance with primal justice."
Vitoria altered the wording, presumably in order to maintain a continuity,
or apparent continuity, with the preceding argu~ent in ~hich he had
derived from Aquinas and Aristotle the conclusion that rus referred to
behavior that was licit "in accordance with the laws." Vitoria added that
24
·I
the word potestas (power) was often used in scripture to mean a right,
and summed up his argument in a crisp sentence, "Whoever has a faculty
in accordance with the laws has a right." 25
Vitoria next turned to an issue raised by Summenhart-whether ius
and dominium meant essentially the same thing. Vitoria noted that, in its
strict sense, dominion referred to a certain superiority or eminence, as
when we say that a ruler has dominion over his subjects. This kind of do-
minion was not equivalent to ius, for an inferior could have a right a~ainst
a superior even though he had no dominion over him, a so_n _against a
father for instance. In another proper sense of the word, domrnrum could
mean ownership of property and again this was not equivalent to ius, for a
person could have a right in a piece of property, such as use or usufruct,
without being the actual owner of it. Finally, Vitoria discus~ ~ummen­
hart's argument that, in a very broad sense of the_ word, domrnrum c~uld
be equated with ius, because a person who depnved another of _a nght
was said to be guilty of theft. Vitoria held that ~his was an _a~us1ve use
of language, but conceded that the two words-ru~ and ~omrrrru~-:wer~
often used indifferently in moral theology.26 In d1scussmg restitution it
did not matter whether a person had been deprived of ownership or
some other property right; in each case there was an injury that called for
reparation.
22. ~ justiti11, 2.2ae,62.l , 64, HSed ista est diffinitio quid nominis tan~m iUi~ vocabuli.ff
He means I assume. that the definition of Aquinas that he had been d tSCussmg was con-
cerned pa;ticularly with the etymology of lhe word jus, specifically with the rdation be-
tween jus and justitia.
23. Ibid.. HDicit ergo quod jus est potestu Vf'I facultas conv~nicns alicui secundum leges.ff
24. A critic from Villey's camp would poinl 0111 thO\t th1• Vul)l.alt• biblt> d1x.~ llflen use lht>
w ord poltslQs but does not equalf' it wllh iu~.
25. Ibid.• 6..'i, "QuicumqUt' ~" h1thrl f1t.-ullnh•m ,....·1111<111111 lt•)l.t.,;. h 1thl'I jrn• ••
26. Ibid., 67, "Vt"nim nil 1111ud ..,., 11h1111lv" '"'" "' • •'t•llll. 11011 lnnwn iii• 1p1ln '"' iuwpt•
ulamur in nmlrrln mur1tll, 111111• II ( ·.,......tu• ··
ARISTOTLE AND THE AMERICAN INDIANS 261
Vitoria's reliance on both Aquinas's teaching on justice and Gerson's
doctrine of rights (as transmitted by Summenhart), has naturally attracted
the attention of modem scholars. The Spanish master's way of handling
these texts is at the heart of the dispute among modem Thomists that
I have already mentioned. Daniel Deckers, who has provided the best
and fullest account of Vitoria's thought, also sees the confrontation of the
two sources as a decisive step in the evolution of a modem doctrine of
rights. Deckers quoted in this context the work of the sociologist, Niklas
Luhmann who, in the course of a far-ranging article on subjective rights,
emphasized the understanding of ius as facuf fas in the work of the Spanish
scholastics. Luhmann thought that their definition possessed an inherent
dynamism; it focussed attention on human freedom and on individual ca-
pabilities and responsibilities; it raised new questions in legal theory about
the grounds and limits of human behavior.27 Deckers himself went on to
argue that two different semantic structures existed in Vitoria's work-
an Aristotelian-Thomist semantic of ius as objective justice and, alongside
this, the subjective definition of ius asJacultas derived from Summenhart.
Deckers saw this as a "fundamental dichotomy.'' He thought that Vitoria
kept the two definitions apart in his thought, that he established no mean-
ingful connections between them and showed no awareness of the latent
conflict inherent in his definitions. Following Luhmann, Deckers also con-
sidered the subjective definition of ius as facuftas to be indicative of a fun-
damental restructuring of legal thought. It was based on a "changed legal
consciousness," he wrote; and this in tum was a result of the economic,
political, social and religious revolutions that had already begun in Vi-
toria's day. 211
There are two criticisms to be made of these arguments. Vitoria's defi-
nition of ius as facultas was not new; and the two semantic structures in
his work were not really isolated from one another. No one would want to
deny that important changes in political and religious life were taking
place in Vitoria's lifetime; but to see his subjective definition of ius as a
reflection of a new juristic consciousness brought into being by those
changes is to overlook the fact that the understanding of ius as a faculty or
power had existed in legal literature for centuries before Vitoria wrote. WC'
first encountered the complex of arguments used by Vitoria-ius under-
stood as "what is licit by Jaw," or as a faculty, or as an area of free choice
nllowed by permissive natural law-in the works of the twelfth-century
27. N. 1.uhmann, Gesell5ehafh~lr11Al11r 111111 .'Vma11/i~ . Stmlirn wr WisYns..<0iiol~ir drr "''"'
,.,,,,.,, l.rsr/l~dmfl vols. (Frank furl. l'IH I), 1 'Ito
21!. lk'<"kt•r:o1. GrrrrhliRlril, IM ''"· IHH •JI s.,.. lhi.I . lf'4 " ... ilk• funJamt'fltnle U11111tnik
t11rit•n111K '"'" R«'chlit al~ Er)l.rhnl• l'h11•• vt1r•111t..11..11 1<.., ht11l>1•w11Mlrln 11n!l 1111.,; wlt'llt'rum
.11" 1'111)1.<' llkonnm b1<:h1•r, pol1t1..·h.,1. •1u1t11lt11 111111 1t•ll)l.lll...1 I lmwlil11111)1.t'll .r.11 Vllnrl11' • Zrll
ht•n•ll" In voll1·11 K"''K '"' ..
262 THE IDEA OF NATURAL RIGHTS
Decretists. Thirteenth-century jurists, especially the canonists, had also
defined ius as a faculty or power. As Charles Reid wrote, "The canonistic
rights vocabulary, like our own, is a rich one. Ubertas, potestas, Jacultas, _im-
munitas, dominium, iustitia, interesse and actio can all in the appropnate
circumstances, be translated as 'right'." 29
Gerhard Otto has pointed out that, although Vitoria probably knew
only a few major treatises of the canonists at first hand, he was strongly
influenced by canonical material that had already been assimilated into
the theological sources that he used.30 In this case the understanding of ius
as a power or faculty had been drawn into works of theology and politi-
cal theory in the Franciscan dispute of the fourteenth century and subse-
quently transmitted by such writers as Gerson, Almain, and Summenhart.
Vitoria, then, was not using a new language of rights; he was deploying an
old language in a new context. . that all things existed for an end; but humankind was the end for which all
In an earlier discussion I wrote that Vitoria's reliance on a scholastic
tradition that had been shaped by jurists as well as theologians led him to
some creative reinterpretations when he considered the texts of Aquinas.
One can add that the confrontation with Aquinas also led to some substan-
tial modifications of Summenhart's positions in Vitoria's work-especially
as regards the possible bearers of rights. That is why one can say that the
two semantic structures he called upon were not wholly isolated from
one another in his work. Aquinas's phrase, " law is the ground of right,"
provided for Vitoria a bridge between them. Ha~ing fi_rst interpr~ted­
or misinterpreted-Aquinas's language here as 1mplymg a doctrine of
subjective rights, Vitoria could readily go on to present Summenhart's
definition as a necessary complement, adding depth and substance to
Aquinas's merely "nominal" definition. Vitoria ~as certainly present~ng
here a doctrine that Aquinas himself had not envisaged; but I do not thmk
that he need be seen as contradicting or betraying the master he admired
so much. We might say rather that he was carrying further the proce:s of
metonymic association used by Aquinas himself when he added vanous
derivative meanings of ius to his own primary definition.
In his further discussions on ius and dominium Vitoria persistently
used Aristotelian and Thomist arguments, interwoven with ones from
Summenhart, to support a doctrine of individual rights. The possibility
of using Aristotelian language to defend some form of natural rights
theory has recently been taken up by several modem writers on political
29. Charles J. Reid, Jr. HThe Canonistic Contribution to th<- W<•stem Rights Tradition,~
Boston College I.Aw Rroiew 33 ( 1991 ): 37- 92 at 64.
30. G. Otte, Das Privatrecht hl!i franri.<eo Jr V1torut (<. ·ol<>Klll'. 1%4), '.17. Tlw c.moni~tic hack·
ground to Vitoria'!' work wa:o al!M• <'mph11.• l7<'•1 hy I Mui.loon. /'•'/""'· /11fid't~. a111l l.11111.vtr~
(Philad<'lphi11. 19711). 144 amt hv 1; M<tllh111lv. ~,.,,,,,,,,,,,,., 1111•lu111111·v (I "hk"M''· 1w;r;), '211!,.
ARISJOTI.E AND Tii E AMERICAN INDIANS 263
thought.31 So Vitoria's early handling of this theme may have a certain con-
temporary relevance.
We can further illustra te Vitoria's way of arguing by turning back to
the commentary on the Summa theologiae and considering his discussion on
the origin of property rights. Relying on Aquinas, and here arguing
against Summenhart, Vitoria first maintained that irrational creatures
could have no rights.32 (The argument was repeated in Vitoria's Relectio de
lndis, and I discuss it below in that context.) Vitoria next argued that God
in fact gave "right and dominion" over all created being to humankind.))
He proved this from scripture, citing Psalm 7.8 ("You have subjected all
under his feet") and Genesis 1.26- 28 ("Have dominion over the fishes of
the sea and the birds of the air... ."); but Vitoria at once added that the
same point could also be proved by reason. Citing Aristotle, he explained
other things were made; therefore man was the lord of all. Again, Aristotle
had shown that, in the whole universe, the less perfect beings existed for
the sake of the more perfect ones; but man was more perfect than all other
creatures; therefore he had "right and dominion" over all.34 There followed
an argument from natural law. It pertained to natural law that man should
conserve himself in being; but he could not do so without using other crea-
tures; therefore he had a right to use them.15 Moreover dominion of things
did not belong only to the human race as a community; rather each indi-
vidual person was owner of everything, so that he could use or abuse it at
will. This sounds almost Hobbesian, but Vitoria added, "provided that he
does not harm other people or himself."36 The Spanish thinker was still
conceiving of natural rights as existing within a framework of natural law.
Vitoria next asked how the division of goods into private properties
had come about. After quoting the text Quo iure (Dist. 8 c.l) from Gratian's
Deere/um, he responded that it was from human law. But this raised an·
other difficulty. If natural law makes one the owner of all things and this
:n . T. Machan, Human Rights and Human Ubulits (Chicago, 1975); 0 . B. RasmuSSt'n and
I>. J. Den Uyl, Uberty and Nnturt. An Aristotelian Defense of Liberal Ordtr (La Salle, 1991 ); E I>.
Miller, Nature. Justice and Rig/rt in Aristot/e·s Politics (Oxford, 1995).
32. Dt j11stitin, 2.2ae.62.1. 69-71.
33. Ibid., 71, "Et sic jus et dominium omnium dedit hominibus_ H
:l4. Ibid ., 72, ... . . homo est omnibu!I p<>rfoctior: ergo omnia alia o rd inantur pmptc•r
ilium . .. ergo habent jus e t dominium !lup•·r om'"'" illas. N
.15. lhid ., 7J, " ll<'m, d<' juw naturnli 1-sl 'I""'' homo n >n:<t'rvC't se in es.., <'. S<-tl hot· nn11
poh•st !<inP aliis cn•aturi!' ... Er1tn hnht•I 111• 11!1•11.tl 111111111>11~ illi!\."
JI.. lt>id .• 74, " Non !M•lum 11nlvrnlt4• rt 11111111111111111" .. ..... t •111iliht•t homo i n 11IAt11 1Ml11
...
r.11• intl'~r.w. id 1•s1. ~t .1mfn In 11olo j111r n""""''· ••1111 .t11111h111• omnium n•rum 1·n•111,,n1m rl
potc•r,1t u l i I'! .1h11ti on111lh11• 1111 •111111111111111 """ '"" l'l"rl AHl11 hmnlnll•u" Y<'I 111\11.'• 'llw
w11r.I ~ . ._,1'1•···lwr<' ""' llw •1•11.,. 111 .. ,.. 11•1• 111• '"1111•1 1h1111 "'h• "''""'"' ••
264 THE IDEA OF NATURAL RIGHTS
natural law or natural right (ius naturale) proceeds from God, then it would
seem that no one can deprive a person of this right to everything. Scotus
had argued that God repealed the natural law prescribing community
of property after Adam's sin; but Vitoria rejected this view because it
conflicted with Gratian's assertion in the Decretum that natural law was
immutable. Vitoria preferred an argument presented by Summenhart
which explained that the natural law ordaining community of property
was not a precept binding for all time but only a kind of permissive law; 37
it left men free to make alternative arrangements. In this situation, just
because all things were common, men could come together and say "You
take this, and you this, and I will have this." 38
Still following Sununenhart, Vitoria argued that the original division
could have been made in three ways. Adam could have divided things
himself (either by his paternal power alone or with the consent of his
sons); or the people could have elected a ruler to make the division; or the
people could have met together and agreed among themselves about the
apportionment.39 Vitoria showed more awaren~ than his predecessors of
the difficulties inherent in this last solution. What if a minority dissented
from the proposed division? It was a principle of natural law that the ma-
jority should prevail, Vitoria maintained.40 The community or a majority of
them could make an actual apportionment of lands, or could decide that
ownership would go to the first occupant. Moreover the decision did not
have to be explicit and formal; virtual consent or mere acquiescence would
suffice, so that when one person began to cultivate a piece of land others
would tacitly recognize his claim to it.0 This was a consent expressed ''by
deeds rather than by words," Vitoria wrote.
Once division has been made by human law natural law came into
play again to protect private property. According to natural law, owner-
ship could be transferred from one person to another in only two ways,
either by the will of the owner or by the authority of the ruler. This phase
of the discussion concluded with an argument that Christians could not
occupy the lands of infidels; once a division has been made their lands
belonged to them alone. There was no Christian ruler set over them to
37. Ibid., 76, "Sed arguit Conradus . . . lex potest esse praeceptiva, et alia potest esse con·
sultiva, et alia permissiva."
38. (bid., 77, "Concedo; immo quia omnia erant communia, ideo de 1ure naturaJ1 . ..
potuenmt inter se ronvenire homines taJiter quod dicerent: tu cape hoc, et tu hoc. et ego
habebohoc."
39. Ibid., 78, "Primus est quod Adam fecit ilJam . . . Secundo modo . . . homines ex con·
sensu omnium potuerunt eligere prindpem .. . qui Jividen- et appn>priar" poh1it illi.~ r('~
omnes . . . Tertio modo potult fierl per communt'm nmM'mmm."
40. Ibid., 79, uEt patl't, quill f'itl ,f,. Jul"C' nnl11r<1ll 1111n1I n u1lor p11nt l'l'lllpt'r vh..-al in <'Oil·
~mo."
41 . Ibid., " El hoc ntHl 11lt•11111 11>1111C"11"11 1111111<111. ""'' vh 1111•11 ·•
ARISTOTLE ANO THE AMERICAN INDIA NS 265
transfer their property away from them, and their own rulers, were un-
willing to yield up their lands. "Certainly," Vitoria wrote, "as regards the
Indians, no one can take their lands from them."42
Vitoria took much of his discussion on property directly from Sum-
menhart, but anyone familiar with the earlier material will recognize in
his argument layers of thought that go back to Ockham and John XXIJ,
Aquinas and Scotus, Rufinus and Hugucio. It would be possible, though
tedious for the reader, to construct chains of texts leading from the early
Decretists to Vitoria's mature formulations.43 It is also significant that Vi-
toria relied on Aristotle and natural reason as well as on scripture in con-
! structing a doctrine of natural right, an original " right and dominion" of
I" each individual over all the things of the world.
VITORIA. RIG HTS AND INDIANS
When Vitoria turned specifically to the rights of American Indians
in his Relectio de lndis, he continued to deploy Thornist and Aristotelian ar-
guments in defense of a doctrine of natural rights. The Spanish master's
work has often been discussed as a contribution to the early development
."
: I
; of international law; from that point of view his arguments about just and
unjust wars, about the valid or invalid claims of the Spanish in America,
and about the pretensions of popes and emperors to a universal temporal
authority are of central importance. But, if we are interested primarily in
Vitoria' s thought about natural rights, the key passage is the first part of
his Releclio de Jndis,44 where he asked whether the Indians had any true do-
minion, public and private, before the arrival of the Spaniards. That is to
say: did they have legitimate rulers and rightful ownership of property?
The issue concerned theologians, Vitoria explained, because the Indians
were not subject to the Spanish by human law; hence, their status had to b<>
considered in relation to divine law, presumably the divine natural law
that initially conferred dominion on humankind.45 The subsequent discus-
sion centered on the term dominium but since, as Vitoria wrote, domi11i11m
was nothing else but a right, his argument was essentially about rights
and, insofar as he was considering natural dominion, about natural rights.
'
I
Vitoria began with an argument concerning natural slavery. Accord in~
. .
to civil law, a slave could not own a nything and, according to Aristotll•,
l
42. !hid ., R2, "Sicut Jt• isl is irnli.~ n•rll• 11111111~ pos.°'('I capt>rt> terras ab eis.
N
4:l. E.g. Vitoria look h iii .to<lrhw 11l 1wn11IJ<•dvr 11.1t11ral law from Summ('nh.irt; S11111mrn
h.trt <itc.J Alc·undc·r of Jf,,1,.•. /\lr,11111lr1 u·ll••d ''" th•· Tlc..·n•li~l11' dilltincliot1 ht'lw1••'f1 llw
pn•n•pls and 1f,·m11nslmli<1111'.• 1•l nr1h1111l l"w. fl1•l (•"'1'"'""''°'' hy Rufim L~. r.1. 11111)
44 A rt'lrrlit1 ( lllrrnllv rttru1ll1111l w~• " 1111111<11 p11"1h l1.. ·t11n• ··~plnrl111t 111 1l•·lr1il "'""''
lupil' 1h.1t IMd n inw up h1 111•1,.vl1111• 11111101•
41\ l'•·r•·l\'1 1'•' 11·1 1'11'1111"'· tfrln 111• 1/r 111111• 1~1.,,,.,. 11 .'). l '111r/111/111111. H
266 THE IDEA OF NATURAL RIGHTS
barbarians were all slaves by nature. It followed that they could not be
owners could not hold dominion.~ But against this it could be argued that
the Indians were in a state of peaceful poc;~ession, as regards both public
authority and private property, and so ought not to be dispossessed. Vi-
toria noted here that he would pass over all the intricate definitions and
distinctions about daminium which he and other theologians had pre-
sented elsewhere, "lest more necessary things be omitted." And, indeed,
the earlier refined scholastic analyses which in an author like Sum.menhart
had led to a complex maze of distinctions and subdistinctions played no
part in the discussion that followed. When Vitoria was faced by ~ great
practical issue, the claims of the Spaniards in the New Wor~d~ it was
enough for him to remember the basic juristic doctrine that dommium was
a right, a right to own or a right to rule. There were only four reasons,
he argued, that might render the Indians incapable of holding such do-
47
minium-that they were sinners, or infidels, or irrational, or insane. ~e
presumption was that all peoples had rights to own property and to in-
stitute their own rulers unless some specific defect in them prevented
this. The discussion that followed presented an extended argument on the
qualities that rendered a creature capable or incap~ble. of being a ~earer
of rights. The outcome of it was that the defects Vitona had menhoned
did not render people in general, or the Indians in particular, incapable of
being right-holders. . . .
The idea that sinners and infidels could have no rightful domm1on
had a respectable ancestry in the works of theologians like Giles of Rome
and Richard FitzRalph. Among the canonists, Innocent IV had defended
the rights of infidels in mid-thirteenth century, but the gre~test cano~ist
of the next generation, Hostiensis, held that, after the commg ~f Chnst,
there could be no rightful dominion outside the church. The issue re-
mained a matter of dispute until the Council of Constance in 1415 con-
demned Wyclif's radical version of the doctrine of dominion founded on
grace.48 Wyclif, it will be recalled, argued that since all power came from
God, anyone who was in a state of mortal s~ and ~ho there~ore di~ not
enjoy God's grace could not rightfully exemse ruhng authonty or nght-
fully own property. Since, here on earth, men could not know whether
a ruler or property-owner actually was in a state of grace, the argument
could have led on to sheer anarchy, and it was generally rejected by ortho-
dox theologians in the time of Vitoria. The Spanish thinker was therefore
46. Dt tndis, t.1, 14, " Et Aristoteles dicit i uslum et n aturale ~s.e ut tales S<"rviant. Ergo
tales non possunt esse domini." . !°>(). Ibid., 1..3, 19.
47. Ibid.,"... si barbari non hatwrent dominium, non vid<•lur <1111>d po:i.~I pnwt<•ml1 al111
causa, nisi vel quia ~uni pccc<1ltm'1' vrl <1111., infi.t,•lt-:t vrl quia nmt-nlN< Vt'I i11M·n~1t i."'
48. On th~ 1•11rli<•r d l~ruh•N In ,-..l11t111t1 t11 thr p111l•l•·m~ 1•1 ti..- h1<H•·" ,...,. M11hl11011. /'"/.,.~.
/11fidrJ.., and /.nuryr,.,, .'i 211
ARISTO TLE AN D THE AMERICAN INDIANS 267
following a conventional line of argument when he held that the Indians
could not be held to lack dominion because they were sinners. Natural do-
minion belonged to man as a creature made in the image of God, Vitoria
~inted out, but this likeness to God inhered in man's power of reason and
this was not lost by sin. A sinner did not lose his natural dominion over his
o~n acti~ns or over h~s own body, and he retained a right of defending
his own hfe_. 49 Also, scnp~ had recognized the lordship of various kings
who were smners. Followmg Innocent rv, Vitoria quoted here the words of
Matthew 5.45, "God makes his sun to rise on the good and the evil. .. ." so
As regards infidels, scripture again recognized the authority of kings
if
who ~er: ~believers; and Aquinas had proved the same point by reason.
) The distinction between belief and unbelief was based on divine law;
!I but divine law did not cancel the human laws based on natural reason
that established government and property. Even heretics did not lose do-
minion of their property until they had been formally condemned and
legally dispossessed. And so Vitoria reached his conclusion. " Barbarians
are not impeded from being true lords (domini), publicly and privately,
on account of the sin of infidelity or any other mortal sin."51
Infidels and sinners, then, could be bearers of rights. But what if the
Indians were mentally impaired, witless or irrational creatures? The con-
~ide:ation of this qu~tion led Vitoria into a d igression about the rights of
irrational creatures m general that forms an importa.n t part of his argu-
ment. Here he turned to Aristotle and Aquinas to refute a characteristic
teac~ing ?f Gerson and Summenhart, both of whom taught that animals
and mammate creatures possessed a kind of dominion with associated
rights. According to Summenhart the stars had a right to shine and sub-
celestial bodies also had many forms of dominion and rights. Each element
had a right to its own place in the universe. Animals had a right to the
herbs ~nd grass that were assigned to them by God as food. And, among
the animals, some held dominion over others; the lion was king of the
beasts and the eagle lord of the birds.52
Vitor~a would have none of this; for him only human beings could
possess nghtful dominion. He first proved this by calling on the juridical
principle that irrational creatures could not suffer or inflict injury. From
49. CH .lndis, 1.3, 18. " Ergo. si propter off('nsam Dei homo penleret dominium d vilt•,
,.,,~em ration~ perd~r~t etiam dominium natumlP. Falsitas autem consequt>nlis pru batur,
•1t11;t non perd1t dom1mum supt•r rr<•prlo:o ndu!t t•I !lup«>r propria rtlt'mbra; ergo h11ht•t pPt"<'ll
tor ius dt•fl'fldrndi pmpria m vit1u11 •·
. 5 1. lhi~ ., 1.10, 25. " foe on1nlh11• hi• -111t111r •·n11t 111..hr •1110J houbarl 1l('<' pmptrr J"C'<"<"llln
"h,1mn rlflh,111<'<" pmptrr 1..,_·n1l11111 lnlhl,.lll•ll•. "'"' hn1>c.,ll11nt 11r 1111ln 11lnt v••rl 1tomlnl, t 11 m
puhlin• •111.nn prlvolllm
r;2. lhhl . I II. 2't 7t•. n •l,.111111& 111 ti111111111•11h•lf. I Ir 1111111111 lll•u-. 111 ~ nhovt•. 7"H
268 THE IDEA Of NATURAL RIGHTS
this Vitoria concluded, with a play on the words ius and iniuria, that they
could not have any right. They could not have a ius because they could not
experience injustice; or, one might say, they could not have a right (ius) be-
cause they could not suffer a wrong (iniuria). To deprive a wolf or lion
of its prey was not to do the beast an injury; to close a shutter against the
sunlight was not to injure the sun. And since irrational creatures could
have no rights they also could have no dominion for, as Summenhart had
acknowledged, dominion itself was a right.53 To argue othen:ise led _t~ ab-
surdities. For instance, if animals did have a right of ownership (domm1um)
then anyone who excluded deer from a pasture would be guilty of theft
because he would take something away against the will of the owner. In
fact animals had no dominion even over their own bodies; and, as Aris-
54
totle showed in the Politics, it was natural and just for men to hunt them.
Vitoria was affirming here a central principle common to many later
human rights theories, the unique value and status of the human pe~on.
He developed the point further by returning to an argument of Aquinas
that he had mentioned earlier. Aquinas maintained that every person was
master (dominus) of his own acts. Moreover it was by virtue of this self-
mastery that humans possessed a natural domini~n over other creat~res.
Through the exercise of his gifts of reason and will man could dominate
the rest of created nature; and this was fitting since, by virtue of these
gifts, man was made in the image of God and so ~ndowed wit~ a _PO':er
analogous to God's absolute dominion.55 For Aquinas the key distinction
between humans and other creatures was that humans, by virtue of their
self-mastery could act freely; other animate and inanimate creatures ~c~ed
by necessity. Commenting on Aquinas, Vitoria added that ~lf-d~m1mon
was a right inhering only in humans: "Brutes do not have a nght m them-
selves but man has a right (habet ius)." 56 So, for Vitoria, freedom and self-
mastery and inherent human right were all interconnected.
53. Ibid., 1.12, 26-1:7, "Patel, quia dominium est ius, ut fatetur etiam Conrad us. Sed crea·
turae irrationales non possunt habere ius. Ergo nee dominium. Probatur minor, quia non
possunt pati iniuriam; ergo non habent ius. Probatur assumptum, quia qui p~hiberet lupum
aut leonem a praeda vel bovem a pastu, non fareret ei iniuriam, nee qui claud1t fenestram ne
sol illuminet, facit iniuriam soli." 1be Latin word iniuria did not mean simply harm but
~~ha~ . .
54. .Ibid., 1.12, 1:7, "Et confirmatur, quia si bruta haberent domimum, ergo qui tolleret
herbam cervo, faceret furtum, quia capit alienum, invito d omino. Item, ferae non habent do-
minium sui. Ergo multo minus aliarum rerum. Assumptum probatur, quia licet eas impune
interficere et etiam animi gratia. Unde etiam Philosophus (primo Politicorum) ait quod Vf!-
natio ferarum est iusta et naturalis."
55. Summa tktologiat, 2.2ae. 66.l. The idt>a o f '"wll·d11minion" wall of rour!it' not p«uliar
to Aquinas. Earlier we considered a llimllnr n•rKt•pl In I h•nry of ( ;tw~t. F'.1r d<1~1ini11111 s11i in
Franciscan sources !let' r. GroMl, lbu~ fadi '.\IJQ :ll., (11ht1w :1711. Kol) (,nl!llll, I th111k. l"<ngi1;«.>r·
atl'5 the diffl'nonCt> lit-lwffn Thuml-1 "111l 1'1n111 l•1 rm thou1thl In thl• ,iri.,,
~ (), j11~lili11, 2 2M· ,,.. I. ']117
ARISTOTLE AND THE AMERIC.AN INDIANS 269
In the De lndis Vitoria applied the Thomist argument to his discussion
about the kinds of creatures that could be holders of dominion. Owner-
ship implied control, and since brute animals could not control their own
actions they could not control external things.57 They could therefore have
no right of ownership. Vitoria's conclusion followed quite logically from
Aquinas's earlier arguments; but Vitoria had transposed them into a dif-
ferent framework of discourse. Aquinas wrote that humans could use
animals for their own purposes, but it did not occur to him to ask specifi-
cally whether animals had rights.
Vitoria next asked whether children before the age of reason could be
owners (domim). The preceding discussion emphasizing reason and self-
mastery might seem to exclude them; but now the argument about ius and
iniuria was turned around and used in their favor. Children could suffer
injury (iniuria), Vitoria wrote; but this implied that they could have a right
(ius); and therefore they could have dominion of things, since domin-
ion was nothing other than a right. 511 Moreover, children were formed in
the image of God, and this was the foundation of all dominion. Unlike an
irrational animal, a child existed for its own sake, not for the sake of an-
other. Vitoria added that, not only children whose rational faculties were
undeveloped, but even the incurably insane, could also be holders of do-
minion, at least according to natural law. The same argument applied; they
could suffer injury, therefore they could have a right.59
When at last Vitoria returned to the American Indians, he acknowl-.
edged that all this discourse about irrational creatures was not strictly
relevant to his argument. He had explored the issue at such length ap-
parently because he considered it necessary for any detailed understand-
ing of the nature of rights and dominion. But, he acknowledged, the
Indians were not in fact witless creatures, devoid of reason. To make this
point, Vitoria invoked another Aristotelian principle. "Nature does noth-
ing in vain."
According to the truth of the matter they are not irrational, but they have
the use of reason in their own way. This is dear because they have a cer-
tain order in their affairs, ordered cities, separate marriages, magistrates,
rulers, laws.... Also they do not err in things that are evident to others,
which is evidence of the use of reason. Again, God and nature do not fail
57. /)~ /rrdis, 1.12, 227- 28. " Et mnfirmatur luK· i\UC"lnritate S. Thomae.. . . Sola c-n.•atur,1
r.11ionabilis habet dominium sui llC"ht!l. . . Si •·'K" bruta non habcnt dominium !luo rum
,,.·tuum, l'rgo> nee aliarum n>n.tm. . Non •·ntm 11ldm11N ali<JU<.>m t'SSE' dominum, nl.~i t'iw1
•tmKI sit um ••st in sua facullatl'. ·• Vi111rl11 N'l<'llrtl lwrl' lo A<tuin,,!l'll Srmrnra ll11•11/1'l(inr, I .K2. I,
I 2.w.1.1- 2. 1.2,u>.6.2 amt -""'""'" 1wtltll .1lr1tll/,• . I 1111
I'"'"'·'I"'"
5R. lhitl .. I IJ, 211, ~ I In•" pu•-11111 p11ll l11h11l~m . r~o l111ht-nl ht~ n•rum; 1'rKt1 •·~1
illi" .t11111hti11m. 'I"'"' nlhll 111t111t .,_, 'l""m 111- '
r.•.1 ll•11l , I I\. }'I
 270 THE IDEA OF NATURAL R IGHTS
for a great part of a species in what is necessary. But the special quality
in man is reason, and potency which is not actualized is in vain.60
Anthony Pagden oddly misunderstood this passa~e as meaning_tha~ the
Indians' rationality was still in potentia, not actualized, and their mmds
"frozen in a state of becoming." 61 But of course Vitoria meant exactly the
opposite. The Indians could not be a people whose intellect was merely
potential rather than actual because the existence of such a people would
imply a failure of God and nature.
Vitoria returned, finally, to the objection he had presented at the be-
ginning of his argument; according to Roman law a slave could ow~
nothing and, according to Aristotle, barbarians ~~re slaves by nature. Vi-
toria responded by distinguishing between the av1l and legal enslavement
of Roman law and Aristotle's natural slavery. Those who were legally en-
slaved could indeed own nothing, but no one was a slave of this kind by
nature. As for natural slavery, Vitoria at first seemed to accept Aristotle's
teaching without demur.
As Aristotle elegantly and accurately observed, some are slaves by
nature, namely those who are better fitted to serve than to rule.62
This was indeed Aristotle's doctrine. But the Greek philosopher would
probably have been surprised at Vitoria's interpretation of it.
To this I answer that Aristotle certainly did not understand that such
people belong by nature to others and have no dominion over them-
selves and over other things.63
Vitoria was envisaging a status for those who were servants by nature
radically different from the chattel slavery of ancient Greece and Rome.
Aristotle described his natural slave as an "animate instrument," "by na-
ture not his own man but another's," one who differed from others "as
60. lbid ., 1.15, 29-30, nrrobatur, quia secundum rei veritatem non s unt amentes, sed
habent pro suo modo usum rationis. Patet, quia habent ord i~m a!iqu~~ in s uis r~us,
postquam habent civitates quae ordine constant, et habent matrimonia dastincta'. m~g~tra­
tus, dominos, Jeges, opifida, commutationes, quae omnia requirunt usum rati°'.11s;_ i_tem
religionis speciem. Item n on errant in rebus, q~ae aliis su.~t evidentes, quod est ~~ 1au m
usus rationis. Item Deus et natura non deficiunt in necessarus pro magna parte speoe1. Prae-
cipuum autem in homine est ratio, et frustra est potentia, quae non ~ucitur ad actu~ . n
61. A . Pagden, The Fall of N11t11r11l Man (Cambridge, 1982), 94. This, and other m1s~ad­
ings of Vitoria in Pagden's work are criticized in m~ paper, "A~istotle and the American
Indians-Again. Two Critical Discussions,n Cristi11nl'S1mo n_ella stor1~ 12 (1991): 295-322.
62. De lndis, 1.1, 13, " Probatur, nam, ut Arl11totel<>S (pnmo Eth1corum 5) eleganter et ac-
curate tradit, aliqui sunt natura servi, quibu~ ll<"llin.'t mt>llu.~ est 9ervlre quam lmperan.'."
63. Ibid., 1.16, 30-31, " Ad hoc n.,.pnnJro •111utl c'4•rlt> Arl,.lot<'lt'K non lnh•llt>xlt q110..t '"''"!i,
qui parum valent ingc•nin, J1inl n11tur11 nllr 11l lurl11 "' """ h11t...1111I domlnl11m ••I ".'.'' 1•1 .11i,1rum
wrum; hiu.'<· rnim t'11t 114•rvlt11J1 dvlllio rl lrKllhn11. 'I'"' 11ul111" ,.,.t ,..., vu.. " n1tt11rn
ARISTOTLE AND THE AMERJCAN INDIANS 271
much as the body differs from the soul, or an animal from a man."64 Vitoria
seems to have just ignored or failed to assimilate these aspects of Aris-
totle's thought. In referring to the Indians' "dominjon over themselves
and over other things" (dominium sui) he was instead deploying once more
Aquinas's language of natural dominion, a dominion that Vitoria persis-
tently treated as a right. The Spanish master had achieved the consider-
able feat of associating a defense of natural rights with Aristotle's theory
of natural slavery. He concluded that, even if the Indians were as foolish
and slow-witted as people said, this did not prevent them from holding
true dominion or justify their being treated as civil slaves.
At other points in his argument Vitoria showed how a doctrine of
natural rights might be used in a different way to defend the Spanish role
in America. He asserted, for instance, that the law of nations, "which either
is natural law or derives from it," conceded certain rights to all persons.
They included a right to travel freely, a right to trade, a right to equal treat-
ment with other strangers, a right to acquire citizenship. If the Indians
denied to the Spaniards any of these rights the Spaniards in tum might
have a right to wage a just war against them.65 Vitoria also maintained that
there was a general right to intervene on behalf of others who were to
suffer unjustly. Applying this principle to the human sacrifices and alleged
cannibalism of the American Indians, he argued that the victims had an in-
herent right of self-defense that they could not renounce. "No one can give
to another the right to kill him," Vitoria wrote. The Spanish king could
therefore have a corresponding right to protect the innocent victims even if
they did not request help or want it.66
The outcome of Vitoria's argument was that all human beings-
sinners, infidels, children, even natural slaves as Vitoria understood the
term-<ould be bearers of rights and did possess certain natural rights.67
Conversely, Vitoria maintained, no non-human creature, animate or inani-
mate, could be a right-holder. For Vitoria, natural rights were rooted in
human nature, not in the nature of the external world. It was a significant
conclusion. If the doctrine of Gerson and Summenhart had prevailed, and
natural rights had been conceived of as vaguely diffused in all creaturt•s
lhroughout the cosmos, the concept of a right might have lost its force as a
64. Politics, 1.4.2, 1.4.5.
(>~ . De lndis, 3.1-5, 77-84.
ff,_ De lf'nlpt!Tantia in T. Urdano7., <'ti., ( >l•m.• dr Francisco de Vitoria (Madrid, 1%0). JO~L
67. VPn.,ncio Carm Pnth1111iMtk11lly 1111111n1t'll up this ll•aching by writinit th.11, iu-curdlng
lo Vitoria, '"'That which iJll n11l11r11I, hr II ullrcl l11w ur right. faculty or powrr, 111 !ft• n•n11111>-
sl.111tial with lhe hl•ing of mnn lh•I II "'11111111• l11111111t11hlr in f'Ve•ry cla11J11 o f mt-n 11ml ho• <"~1111111
1,,,.., or .w.111irr it through"'"· wh..tlw1 "" '"' ( l11l•ll1rn nr l'"l'.llfl, t>lnck or whih'." S.'t' V1°n'111
e·iu I l ( ·.un•. "'"Jlu· SpM1f~h "f11.,.1l11Kh"11! J111 hll1 "' llrn,.l•-•"111 r ,"' In J l'rl1•1l1• 11111111 l(,..·n. "'I" .
llr11 ''''""'~ ,f~ 1,,, ( ·11...1• 111 1/1.-111111 (I i..._11lh. Ill I'll 11 J rt Ji/ 111 ?'11
 THE ID EA OF NA11.lRAL RIGHTS
272
key element in the construction of political th~~es. ~itoria substitute~ a
vision that was, in its way, profoundly humamshc. Hts work was not in-
fluenced so much by the literary humanism of his age as by an older
theological and philosophical humanism that saw h~man~ind as t~e end
of all creation. Vitoria was convinced that all the things m the uruverse
God had created, even the last star, were meant to serve humanity. Other-
wise, he asked, a little naively perhaps, why should they have been made
at all? 611
LAS CASAS, INDIANS AND RIGHTS
Vitoria passed his life in libraries and lecture-halls; he encountered
the problem of the Indies as a disputed issue of moral theology. Las Casas
lived and worked among the Indians for twenty years before he entered
th<> Oominican Order and turned to a systematic study of theology and
law. He saw first hand some of the atrocities that he inveighed against _in a
flood of later writings. His works ate filled with a passion and immed1~cy
that set them apart from the typical writings of the Spanish scholas~cs.
These qualities also eamed Las Casas a conflicted posthum~us reputah?n.
Some nationalist historians, incensed by Las Casas' role m the creation
of the Black Legend of Spanish cruelty, have dismissed the Dominican as
arrogant, unbalanced and even "para~oiac"; more c~mmonl~ now~~ays
he is seen as an "authentic representation of the Sparush conscience.
The whole of Las Casas' life's work was inspired by a conviction that
the Indians could be converted to Christianity only by peacefu' persuasion
without any violence or coercion.10 In ~efendi~g the In~ians, the~fore,
he especially emphasized the natural nght to liberty. Hts adve.rsanes-
notably Juan de Sepulveda, against whom Las Casas contended m a great
confrontation at Valladolid in 1550-maintained on the contrary that the
Indians were a degraded people, just barely human, naturally made for
slavery. SepUlveda wrote, for instance:
The Spaniards rule with perfect right over the barbarians who,. in pru-
dence, talent, virtue and humanity are as inferior to the Spamards as
68. IX juslitill, 2.lae.62.1, n-73.
69. On Las Casas as paranoiac see R. Menendez Pidal. El padrr Uis Casas. Su dob!t ~n­
alidad (Madrid 1963). llle second quotation is from a resoluti#on.ad°!'ted at t~e 1lurty-s1xlh
Annual Conference of Americanists, quoted by Juan Comas, Htstoncal Reahty and the De-
tractors of Las Casas," in Friede and Keen, Bartolom~ dt Uis Casas, 487- 537 at 531. See aL'iO
B. Keen, "Introduction: Approaches to Las Cna!I, 1535- 1970,H in ibid., 3- 63. . 72. Apol~rlrca lrisrorin !<Untn111rf11 I. r.I V l\hrtl <'11•h•llr'1 rt al., O bra.•, 6:285-1'16.
70. Las Casas expounded this vww in tii11 e11rly work, On lht Only Way of ~llraclrn~ All
Pttiple to tht Trut Faith, and repeatro It In m11ny 1.. 1,.r w rll~nK~· St•t• hiii l>r "":"'.' Vt~·11tum1~
modo, ed. P. Castal\rda ~lgado aml A. I ;411rd• Llt'I Mnrfll In I ""' fllirloluml rlr I'" < ''"'''· Clhra!I
Complttas, 14 voUI- {Motdrld, II.IHI\ QCI). 7
ARISTOT\.E /\ND ntE AMERICAN INDIANS 273
children to adults, women to men, the savage and cruel to the mild and
gentle, the grossly intemperate to the continent, I might almost say as
monkeys to men.11
On this view the Indians had to be subdued by force before any work of
conversion could effectively be undertaken.
In response to such arguments Las Casas often presented the Indians
as a morally and intellectually superior people. In the Apologetica historia
he described them as "gentle, patient, and humble," endowed with "ex-
cellent, subtle, and very capable minds," characterized by "temperance in
eating and drinking, moderation in sensual desires, and a lack of care and
anxiety about worldly things." According to Las Casas the Indians sur-
passed even the ancient Greeks and Romans in the use of natural reason.n
There is perhaps a little pardonable exaggeration in all this; but the core of
Las Casas' case for the Indians can be found in two eloquent lines at the
end of his rebuttal of Sepulveda. "They are our brothers, and Christ gave
his life for them.''73
Las Casas was so much concerned with the particular grievances of
the Indians that it has sometimes been doubted whether he ever formed a
doctrine of universal natural rights at all. Michel Villey observed that Las
Casas wrote only to defend the liberties of the Indians, not those of other
peoples-Negroes or Chinese for instance-and so had hardly any con-
cern for the rights of mankind in general.74 But this seems inconsistent
with some lines of Las Casas that have become famous.
All the peoples of the world are humans and there is only one definition
of all humans and of each one, that is that they are rational. . .. Thus all
the races of humankind are one.75
The idea of a universal brotherhood of man is an ancient Stoic concep-
tion, and, indeed, Las Casas quoted Cicero here. But, like Vitoria, he went
beyond the ancient sources by supplementing them with a medieval doc-
trine of natural rights.
Lewis Hanke once wrote of the early writers on America that "they
tended to look at the New World through medieval spectacles.'' Evidently
we cannot understand the thought of Las Casas without some knowledge
of the tumultuous events of his life and some awareness of the savage
71. Angel Losada, rd., /"1n Gi11rs dt' Srpuliontn. I kmocrales ~gundo o ~las jusla~ c·ausn!f tlr
lr1 gurrra contra l<ls Indios (M11drid, 11151 ), :n . I\~ thf' Nlilor noted {3..l n. 28). the phraM.· ahem!
m nnkl'ys was dropped in Sc.>p1ilvc'tlA' " flnAI vrn<ion ur th1• trxt.
7.1. l\polaxin, rd. l\ngrl I A.,.a1l11, c l/•1111, •1 hf>(
74. M. Villt•y, " l'n>l>lrnu1llct1"' ,,.,. choll• ct.. t'hummr," In'"'' ( ·"""' t'I la 1~1/ill11'rr cfl'!f 1frol1..
.It' /'11r1nrn11• (All!·<'n ·l'rovr11r'W', IV?n), \flll 01 111 ltlV
7r, /\l'o/cisrlirn l1l•hrrf1111111t1t110111 II. I lfc1111. 'f 'I WI If
274 TliE IDEA OF NAruRAL RIGHTS
struggle for wealth and power that lay behind all the theoretical writings
on the New World; but also we cannot explain Las Casas's specific role in
the development of a theory of natural rights without considering his in-
tellectual formation and the preconceptions he brought to his work. As
with Vitoria, this is still a matter of controversy among modem Thomists
and other critics. Probably the most commonly held view is that the friar
derived a doctrine of natural rights from Aquinas. Venancio Carro, for
instance, in discussing Las Casas, wrote of "the Thomist principle that
natural rights come before all other rights."76 Abril Castello saw the Span-
ish Dominican's thought as "traditional Thomist ideology" supplement~
with elements of Augustinian political theology.77 Luf\o Pena t°<:> main-
tained that Las Casas relied on Aquinas's rational natural law (wsnatu-
ralismo rationalista) in formulating his characteristic doctrine of a natural
right to liberty inhering in every human person.78 Edmundo O'Gorman,
on the other hand, argued that Las Casas spoke with " the voice of Vol-
taire, Hume, and Rousseau," but only because he abandoned his earlier
Christian-Aristotelian view of human nature and turned to a kind of pre-
Cartesian rationalism.79 Other writers have discerned an essential moder-
nity in Las Casas without accepting this particular argument of O'Gorman.
Pena, for instance, while emphasizing the Thomist source of Las Casas'
thought, also saw the Dominican as "a precursor of the modem teaching
on the rights of man."80 In this way of thinking the writings of Las Cas~s
formed a link between a doctrine of natural rights already present m
Aquinas and modem pronouncements on human rights.
A view different from all these has been presented in the many publi-
cations of a modem Dominican, Philippe Andre-Vincent, on Las Casas.
Andre-Vincent asserts that the whole concept of subjective natural rights
was alien to Las Casas' thought. Arguing from the same neo-Thomist
standpoint that we discussed in considering the work of Villey, ~e ma~­
tains that the "classic natural right" we find in Aquinas is radically in-
compatible with the idea of subjective natural rights. Las Casas, therefore,
76. Carro, "The Spanish Theological-Juridical Renaissance, ft 253.
77. v. Abril Castello, "Bartolome de las Casas, el ultimo communero," in Las Casas ti In
politiqut, 92-123 at 110. . . ..
78. Lui\o Pena, "Presupuestos historico-doclTinales de la teona Las Casas d e la hbertad,
in ibid., 153-65 at 156.
79. E. Q'Gorman, "Lewis Hanke on the Spanish Struggle for Justice in the Conqut>St of
America,ft Hispanic Amnicon Historical Rroitw 29 (1949): 56:l-71. . .
80. "Presupuestos," 162. For a discus.~ion of viC'W!'i on l.a:r; Casas' mnd..-rnity sre /\. h.
Perez Luno and J. Gonulez R(>dr!gu<•:r.. t>r rr'1ilf f"•IN>lalr, <>!mis, 12:1-XXXIX al XIV.
XXXlll-XXXIX. See also L. Han kt', " I .11 f"n"' tl1• l'rAy 11.lrh•lnm•~ Jt• l.u1 ( ·,,,..,~:· in f:~111di1is I J I!<·
casianos (Seville, 1966), 1 - 1~ 11t II•, """1''"'"11 1... ~ (""'"" tr.whh111 111 th•• ll11ih•1I N.1tin11~
Drdaration on ll11m11n Kil(hho"1ul t11lhr1•r1111111u,. rmr11t• 111V.11111111< ·uu n•1111
l
••
ARlsrcrrt..E AND TiiE AMERICAN INDIANS
as a devoted Thomist, could not have taught the latter doctrine.11 He
wanted to liberate the Indian peoples, but he did not assert that individual
275
persons had a right to liberty.82 According to Andre-Vincent, even when
Las Casas used the word iura in the plural he was referring to the laws and
customs of the Indians not to their rights.83 And when he referred to the
subjective attributes of persons he used words like "faculty" or "power"
..i but not "right.''34 Andre-Vincent especially praised the realism of Las
i' Casas in addressing the concrete grievances of the Indians and contrasted
:.'" ! this approach with the abstract "rights of man" claimed by Enlighten-
ment theorists.15
Before going any further we need to note that this point of view
really cannot be sustained. And, indeed, Andrt?-Vincent never made any
attempt to sustain it by a systematic examination of Las Casas' actual use
f
-~ I of the terms ius and iura. The modem scholar's medieval spectacles were
~i strongly tinted with Thomism; he could not see anything in Las Casas
that was out of harmony with his understanding of Aquinas. But in fact
f one can open a work of Las Casas like the De thesauris almost anywhere at
random and, reading on for a few pages, come upon specific references to
, II
the rights of the Indians. Las Casas wrote, for instance, of the "dignities,
I goods and other rights (j11ribus)" that even infidels held by natural law;
!
I of "regalian rights" (iura) belonging to the Indian princes; of their "juris-
dictions, dignities, rights (iura} and dues."86 Las Casas also referred in this
work specifically to the rights of single individuals and defined a right
as meaning a kind of power.87 Again, Andrt?-Vincent wrote that Las Casas
81 . P. Andrl?-Vincent, "La con cretisation de la notion classique de droit nature! a travers
t.
.i
l°OC'uvre de Las Casas," in Las Casas tt la politiq11t, 203-213. " L'oeuvre de Las Casas se rat-
tache a saint Thomas d 'Aquin par de no mbreuses referen~ et surtout un sens concret et
oojectif du droit" (203). This paper presents a clear outline of the views that Andre-Vmcent
developed in his various other writings on Las Casas.
82. "Concretisation," 205. "Cette liberte . .. n 'est jamais revendiquee comme un droit in·
j
I dividuel."
l S3. "Concretisation," 204, "Par contre on ne rencontre jamais dans les ecrits la.scasiens le
mot droit employe dans le sens de rive subjectif. . . . Ainsi quand on lit chez Las Casas "Les
droits des lndiens" ... ii s'agit des lois des Jndiens...."
84. "Concritisnlion," 204, "Las Casas .. . parlera de capacites, de pouvoirs, non de droits.."
85. Writers on Las Casas often seem ambivalent on this point. On Las Casas' " moder·
nity" see above, n. 80. On the other hand, J. Hoffner wrote that of course Las Casas did not
a'iSert the secularized human rights of a later age. (See Pena, " Presupuestos," 165, n. 64.) M .
Mahn· Lo t, Bartolome de Ins Cnsa~ t'I le droil dN> lndim.~ (Paris, 1982), 258, succeeded in hilvinR
it both ways . She wrote, " II faut ~<· gu•lt·r .. . tie confondre le droit nature! de Ia tht'ologil"
sn1I.1stiquC' el le droit nillun•l 111o•l1•m. •••lui di• <:n 1ti11s 1•t <IC'S F.ncydop&tislC'S," but 11l!Co, "'ii
y ;i unC' filiati<>n indeni.1'11<' •l•'ll h1>1111111.,. ,,,.,. I .11111u' n"' ,, l\'colc• de Salamanqur... ."
lih. lk ll11•'4J11ris, 4'd /\nKrl I•"'"''"· I''''''" 11 I, 71•. Hll
K7. On riKhl!! u f sinl(lt' ln1livhl1111l• ...,., , ,,. ,,,~..11111o. 11 J, 1111, •• . • nun 1•r11t lntrntlun!JO 111u•
11111b11H "1t""' n <1l11rnll11m ••I •11111111111111111'"'""""10011 ''""'K"'r •• At 222, I.A• <'A!lll• rr
h•1n~I tu llw liKhl 111i\1.1111( 11• ··111• '""'"P 1•11t..•l11tl• •· •;111111111 " ""Krll oc't'llr 11t :llti. .177
 276 THE IDEA OF NATURAL RIGHTS
never claimed for the Indians a "droit de," a right of doing something; but
Las Casas did use such language in phrases like ius movendi bellum (the
right of making war) or potestas et auctoritas vel ius eligendi (the power and
authority or right of electing).88 . .
Although Andre-Vincent's argument is unacceptable it leaves us with
a problem. 1be modem Dominican ~ at .least right ~ asse~ng that Las
Casas did not take a doctrine of subjective natural nghts directly from
Aquinas; for, as we noted in discussing Vit~ria, ~quinas did not present
such a doctrine. We still need, therefore, to mvestigate the actual sources
of Las Casas' thought. Fortunately Las Casas himself has left us a clue. In a
Jetter written to the friars of his Mexican diocese of Chiappa, he wrote that,
however hard and rigorous his propositions might seem, they could all
be defended from the teachings of St. Thomas, even though they were
not expressly stated there. But he also wrote here that he had labored for
forty-eight years to study the law and to reach a clear understanding of
its principles.119 In similar vein Las Casas wrote, when he contem~tuously
/ dismissed the view of John Mair on the Indians, "Away then w1th John
V Mair and his dreams; he knows neither the law nor the facts."90 Las Casas
prided himself on knowing both the facts and t~e law. J:iis essen_tia~ a_ch-
ievement on a theoretical level, was to graft, qwte consciously, a 1undical
doctrine ~f natural rights onto Aquinas's teaching on natural law. In this
he was like Vitoria and other Spanish theologian-jurists of the sixteenth
century; but the appeal to legal sources was m~re over_t and persistent in
Las Casas than in Vitoria or most of the other wnters. HIS pages are strewn
with hundreds of references to Roman and canon law and to medieval
commentators on the two laws.
Las Casas resembled Ockham in frequently appealing to canonistk
texts in order to defend a doctrine of rights, and he was also like the Fran-
ciscan in another way. He kept on repeating the same argum~nts over and
over again in treatise after treatise. The reaso~_was the sa~e m both cases.
Las Casas was not articulating a coherent political theory m the ca~m of ~e
study; he was engaged in constant battle; his adversanes kept reaterat~ng
the same arguments against his position, and Las Casas kept responding
from his prepared stock of counter arguments. Often he chose to fight on
the ground his adversary had chosen. When faced with an Aristotel~an
argument he would argue back from Aristotle or Aquinas. When dealing
with a juridical objection he would deploy an array of le~a~ texts..So~~
times, most interestingly, he would weave together Thorrusti~ and 1unshc
doctrines to reach a new conclusion. Thus, in the De thesaurrs, Las Casas
88. Dt tht sauris, 380, 236.
89. J. P~rez de Tudela BuellO. OhrCIS ~JSlidas tf,. fr11.11 Rartoloml dr Uis Ctr~~. 5 vols
(Madrid, 1957-58). 5:470, 471.
90. Apol~ill. 6114.
ARISTOTLE ANO THE AMERICAN INDIANS 277
wanted to prove that, even after they became Christians, the Indians
would not be obliged to accept the universal temporal authority of the
po~e as a matter of fait~, and so acknowledge a papal right to hand over
their. lands to. the Spaniards. The proof was in the form of a syllogism.
Aquinas provided the major premise. "No one acts against the faith if he
d~ubts on a_matter where Catholic doctors hold contrary opinions." The
minor premise came from the great canonists, Innocent IV and Hostiensis.
These two eminent Catholic authorities did indeed hold contrary opinions
about the temporal power of the pope and the rights of infidels. So the con-
clusion followed that Las Casas had set out to prove.'1
The best example of a purely Aristotelian-Thomist argument for
natural liberty in the writings of Las Casas occurs in his defense of the
1 Indians agai:"st the at~ack o~Sepulveda. One of Sepulveda's principal ar-
gum~nts rehed on Ar~stotle s teaching about natural slavery. According
t to Aristotle, all barbanans were natural slaves, Sepulveda noted, and the
Indians were evidently barbarians; they ought therefore, as slaves, to
submit meekly to their Spanish masters; and if they refused to do so they
could be warred against just as one might hunt down wild beasts.9 2 Las
Casas, however, recalled that Aquinas, in commenting on the relevant
text of Aristotle's Politics, had observed that the word "barbarian" could
refer to several d ifferent classes of people. Then he proceeded to adapt
Aquinas's distinctions to suit his own argument.
In the first place, Las Casas wrote, any cruel and merciless person
c')uld be called a barbarian; but, in this sense, the Spaniards themselves
were "barbarians and worse than barbarians" on account of their cruelties
to the lndians.93 Again, peoples who could not understand each other's
speec~ regarded one another as barbarians; but in this sense the Spanish
were 1ust as much barbarians to the Indians as the Indians were to the
Spanish.94 In yet another meaning of the word, all non-Christians could be
~lied barbarians; but this definition included civilized peoples like the an-
cient Greeks and Romans.95 The only barbarians " in the absolute and strict
sense of the word," Las Casas held, were scattered savage individuals,
strangers to reason, who dwelt alone in forests and mountains without any
ordered society, leading a life like that of brute animals. These were the
"wild men" of medieval legend. Las Casas conceded that this class of
humans might correspond to Aristotle's natural slaves;96 but he had two
91. [)I' thesnuris, 294.
92. Drmocmlt's Y R11t1<fo, 22.
93. Al'oieJKia, 80, 122, MHi'r""' . i..,rt..iri s u n t c·t b.1 rbaris peio res."
94. Ibid ., 116.
'15. Ibid ., 1111.
-~I
% . Ibid ., I lff, " l>r h lo ltw111lh11 l'hll11•" 1'h11• r t " " " p rommlinl """" n.,lru n 11e•rvo11
Sc-.· R. lt.•mh1•lnw r. w,1,1 Mt11 l11 ll1t Ml1l1ll• "~'·(I '"""'"'K"· MAM., 1111\1)
278 THE IDEA OF NATURAL RIGHTS
important further points to make. Even men like thc:se were not alto~e~er
devoid of rights. They had a right to "brotherly kindness and Christian
Jove.'"" They were not to be hunted down like wild animals and subjected
to harsh and cruel labor but rather gently persuaded to adopt a better way
of life.98 Las Casas' other point was that barbarians of this kind were nec-
essarily very rare; they were freaks of nature like a man born with some
physical abnormality- lame, crippled, blind or one-eyed.99 Las Casas went
on to present at some length an argument that Vitoria had only suggested
in a couple of elliptical lines. Aristotle had written, "Nature always does
what is best of things possible." The existence of many abnormal, defec-
tive humans would, therefore, imply a frustration of nature and a failure
of God's plan for humankind. There could not be a whole race of such
people.100 Here again, as with Vitoria, Aristotle's own teachings were used
101
to subvert the assertion that all barbarian peoples were slaves by nature.
When, later in his Apologia for the Indians, Las Casas turned to other
problems about the waging of a just war that were raised.by Sepulveda, he
relied more on juridical sources. In a later work, De regra potestate, where
Las Casas was more concerned to assert positively a natural right to liberty
than to refute the theory of natural slavery, he based his argument almost
entirely on legal authorities. But in the crucial definition of liberty there
was again an interweaving of Thomist and juristic texts.
As regards humans, it is shown that from the begi~i~g of their rati~nal
nature, they were bom free, as in the law Manum1ss1ones of the Digest,
Title De iustitia et iure (Dig. 1.1.4).... The reason for this according to
Thomas (on the Sentences, 2.44.1.3) is that a rational nature in itself is not
ordered to some other as its end .... For liberty is a right (ius) necessarily
instilled in man from the beginning of rational nature and so from natural
law (iure) as in Distindio 1 (of the Decretum) in the chapter Ius naturale at
the words, Omnium una libertas (Dist. 1.c.7).102
97. Ibid., 98.
98. Ibid., 98-100.
99. Ibid., 90. "Raro enim naturales causae cessant produrere effectus naturae suae con-
gruentes. Raro enim homo nascitur daudus vel mancus vel c~ecus vel u~~lus.. . . "
100. Ibid., 94, " Rursus si credamus tam immensam hommum multitud1nem barbaram
esse, sequeretur intentionem Dei maxima ex parte effectu caruisse .. . et sic perfectioni totius
universi multum detraheretur...."
101. In an earlier encounter at the court of Charles V Las Casas had declared robustly
that Aristotle was just " a pagan burning in Hell." See Historia dt Ins l11dias Ill, ed. M . Ang~I
Medina et al., Obras 5:2413. But Las Casas was no t averse to citing the Philosopher when •l
suited his own argument. • .
102. Dt regia potestalt, ed. A. Larios Ramos and A . Garcia del Moral y Gamdo, O/Jr~.~ .
12:1.1.l, 34. " Et quidem, quantum ad homiONO, probatur quoniam ab u rigine naturile raho-
r>alis 1;;,.....n nascebantur, ul I. manumil'..•innt'I'. Dt• iulil, t•I iur. Qula in n.1t11r,1 pari l>t•us non
fadl unum alterius M-rvum, St-rl par c•mnlhu~ ,.......~.,.,.11 nrhllrlum l ·uhL• r.11lu ,.,., "'"·11ml11111
Thom am (2 St'nl. di.• t. 44, q. I. art . '.l), •111111 n11111111 "r11tlun11U~. •1111m111111 ....1 •I<' '"'· 11011 nnli1rnl11r
ul ntt fi11t'm '"' 111111111. 111 homo '"I hu1nl11r111 ·• Nini\ hhr tlll• ,.,., tu• 111•1111111 h1>ml11lht11< •"' n••
ARISTOTLE AND THE AMERICAN INDIANS 279
Lufto Pena cited this text to show how Las Casas derived his doctrine of
a natural right to liberty from Aquinas.103 But that is less than half the
story. The reference to Aquinas was inserted between two texts taken from
Roman and canon law. The cited passage of Aquinas did declare that "na-
ture made all men equal in liberty"; but, when Las Casas wanted to prove
that liberty was specifically a right, he turned to a text of the Decretum
(Dist. 1.c.7} that had been a locus of discussion about natural rights ever
since the twelfth century.104
For Las Casas, liberty was " more precious and priceless" than any
riches a people might possess.105 In the De regia potestate the Dominican
also defended a right to property and a right to institute rulers by consent
as ancillary to the fundamental right of liberty. As regards property, in
the beginning all things were "free" in the sense that they did not belong
to anyone; therefore each person had the power to take anything for his
own.106 (Las Casas did not present any complex theory of property; he
simply accepted the Roman law doctrine of first occupancy without fur-
ther discussion.) When a ruler was instituted he acquired jurisdiction over
his subjects but not ownership of their property. 107 And since, in the be-
ginning, all people were free, the authority of a ruler could be derived only
from their voluntary consent-otherwise they would be deprived of the
liberty that belonged to them by natural right. 108 It followed too that a ruler
could not impose taxes or other burdens unless the people voluntarily con-
sented; they did not lose their liberty when they elected a ruler.109 All this
led to a conclusion about the alienation of crown lands and crown rights.
.-essistate et per se ab exordio rationalis naturae, et sic je iure naturali (ul J. dist. c. ius 1111turalt.
ihi: Omnium 11na l1bertas).''
103. " Presupuestos," 156.
104. For the comments of Huguccio and Ockham on this text see above, 65, 178-80.
105. De regia poltslate, 2.8.5, 82.
106. Ibid., 1.2.1-3, 40- 44, "Quantum autem ad res inanimatas ut sunt terra, praedia,
•·t qu<1elibet res aliae, similiter est dicendum quod fuerunt originaliter de iure naturali
primaevo liberae . . . Apparel etiam hac ratione: omnis terra et omnis res, antequam occu-
l'•uetur, in nullius bonis erat ... Unde homo quilibet concessione d.ivina potestatem habuit
praroccupandi possessionem cuiuscumque rei.... "
107. Ibid., I 3, 1-3, 48, " . .. aliud rei proprietas, aliud autem iurisdictio.. . . Nl'C obstnl
•1111>d dicant reg~ regnum ~se s uum, quia intelligitur suum esse quoad iurisdictiontm "'
protcctionem.n Las Casas was agi'lin following Roman law here. See the Ordinary C.ln!<.• lo
l ·, ~/. 7 _17.3 s.v. onmin pmrciJ'iS, "••I hk t"•P"'"' ntl pmtcxt iontm uel iurisdictionem."
HIS. Ibid., l.4. 1- 3 , 60- 62, " l'mh111trr Ah lnllln omni~ rt!ft, omnis populus fuit lil>t'r; 1<1
..onlra pupuli vt'I p rival i domlnil 1111• 11h111 R'I vuh111l11lrm imponnentur, fol't'flt ab!lqut' d ut>lo
viult•nla, el sic' pmhillt•wl11r pnp11l11M 1111 •ttll lll,..1l11lr. •pint• cir iurt> naturali compt"IC't>al. . .
limit' impt'rlu m lmm1•tll.,tr 1•N M'f'Hll 11 l'"I'"'"· "'("'I'""'" 111!1 C'AllM 1•ffrr tlv11 n'KUnt ......
prindrum. ·•
111'1 lhi.t . I 4 4, It/, '' l'111111h1•"''•••1t1l111•1h11 l1•,.111 .,... " 'K" m. llhrrt11lrm "'"""non 1111111.11,
""' pole••lt1h•111 • •ttllllll•ll 1111l t 11111.,.. 1t 111 •~1111111 ·
280 THE IDEA OF NATURAL RIGllTS
"No prince or king, however supreme . . . may alienate any city, land, or
fortified place however small ... unless the citizens or inhabitants ...
freely consent to such alienation." 110 Unlike most of Las Casas' works, the
De regia potestale was written in rather dry and abstract terms but, as
always, Las Casas had in mind a specific problem concerning the Indies.
His immediate purpose here was to dissuade the king of Spain from grant-
ing to the Spanish colonists permanent encomiendas-semi-feudal grants of
land worked by native labor that included jurisdiction over the Indian in-
habitants.
Luciano Perena, an editor of the De regia potestale, complained a little
about the careless handling of legal sources in this work. Las Casas, he
noted, often quoted his authorities at second-hand, not from the original
source; at times he cited sources imprecisely; and sometimes he used texts
in a way contrary to their original meaning. 111 I would agree that Las Casas
was opportunistic in his use of juridical authorities, but his knowledge of
the literature was really very extensive. One would not expect anything
else from forty-eight years of study! The impression that texts are being
wrenched from their original meaning typically arises, not because Las
Casas misunderstood his sources, but because he was deploying them in a
new context that their original authors could not have foreseen.
This is especially true of Las Casas' last major treatise De thesauris in
Peru, sometimes called his Testament. The work contains strains of Thom-
ist thought as I noted earlier. Las Casas, for instance, took his definition of
natural Jaw from the Summa theologiae of Aquinas, 112 and when he made
the standard point that human law should be in accord with natural law
he cited both theologians (Aquinas and Augustine) and canonists (Gratian
and Baldus). 113 But the whole fabric of the argument in this work-an ar-
gument about the natural rights of the Indians, especially their right to
liberty-was sustained by juridical reasoning.114
Las Casas never argued against a Spanish presence in the New World;
his whole life's purpose was to bring the Indians to Christianity through
the work of Spanish missionaries. He also acknowledged that Pope Alex-
ander Vi's Jetter assigning the Americas to the Spanish crown as a mission
territory did give the Spanish kings a claim to a kind of overlordship or
110. Jbid., 1.12.1, 98.
111. "Estudio preliminar,# in ~ rrgia polt'Slatt, ed. L. Perena et a l. (Madrid. 1969),
CXLVIll.
112. ~ thtSauris, 90, HDe quo S. Thomas 1.2 .q .96 a .4 ... ' F.-;t aul<'m lt>11 Oillurali" in nohi~
quedam partidpatio legis eteme .. .'."
113. Ibid., 90- 92.
114. This was e mpha."i1.t>d hy K. l'<'nllington. " 11.,rtnlumi' ,1,. '""' l ·.,,..,io anti th<' Tr.ltlilion
of Mt>dieval I.aw," Churi·h lli:tl1•rv :WI 1'170) 14•1 ltl ·n1h• 1Htld1• tll1! not n ..·r lv1· dll th1• ..111•11·
lion it tft'!W'rvrtl in tile' latrr •pAI• ol I •• C •••• •l111llr"
ARISTUTl.E AND THE AMERICAN INDIANS 281
protectorate, "a universal imperial jurisdiction" over the Indian.s. 115 But
Las Casas also insisted that this jurisdiction must respect the rights of the
Indian peoples and their rulers, and that it could be exercised justly only if
the Indians consented to it.
In his early writings Las Casas had taken a decidedly royalist stance;
he hoped that the crown would intervene to protect the Indians against
the abuses of the encomaderos. When these hopes were frustrated after
the failure of the New Laws of 1542 (laws that favored the Indians but that
were never put into effect) his attitude became more radical. At the end
of his life, in the De thesa11ris, Las Casas argued that the existing Spanish
rule in the Indies, as it had actually come to exist-a conquest by violence
followed by a plundering of the land and its inhabitants-was utterly ille-
gitimate. The situation could be remedied only by a full restitution to the
Indians of all the rights and lands and treasures that had been snatched
away from them. It was not a very realistic program on the level of prac-
tical politics. Perhaps by this time, as Juan Friede suggested, Las Casas
was more anxious to make his peace with God than hopeful of changing
the politics of Philip II. But, although the work could have no immediate
practical effect, it has a considerable theoretical significance as a systematic
application of the scholastic doctrine of natural rights to a concrete histori-
cal situation. It is in this regard that Las Casas' use of juridical sources is
especially interesting. By appealing to specific well-established principles
of the law he was able to add flesh and bone and muscle to the theoretical
concept of natural rights that had been developed in the schools. I would
like to conclude by giving a few examples of this kind of reasoning.
A principal theme of the De lhesauris maintained that the papal dona-
tion to the Spanish crown did not and could not deprive the Indians of
their pre-existing rights and liberties even though it granted " lordships
.md jurisdictions" in the Indies to Spain. As one proof of this, Las Casas as-
serted that a papal rescript favoring one individual should not prejudice
the rights of a third party. Now this was indeed a familiar doctrine of tht•
canonists, asserted in various scattered texts of the Gregorian Decrelals. l...is
l ·asas quoted several of these texts and added, with only a little exaggl·rn-
tion, that innumerable Jaws could be adduced to prove the same point.'"
But the texts of the Decretals referred only to technicalities of canon law.
for instance, when the pope granted some privilege to a papal lcgat<•, ht•
115. /)1"1/11"51!/lrIS 112.
116. bid., 96, n Prolt>lllatur inftuprr Summuft l'ontifl'11 111tl' inl<'nlionb nun'lw1m ,.,._.,.
·•lic1uid rruuidt•n• ;mt m .. nd1111', ,.,.., 111111• 1111.-rcu, , ...r ., ....,, '11irui prf'iudldum lrrc'j\C'tllr.. . .
" uni .1 li,. innuml'r,. iur• qur ••I prcil••lh"1r111 h11h10111< .. ll pu11~unt 11.tdud.H l.a11 Cuu dh·•I
IU'rt' 111•v1•n lt••lii Imm llw I >r1rr/11/, I" I it 17. 11 I 7'1 I'I. X '.t:lll.:l, X. l.J.1', X.2.12 I. X .~ I 24,
'I( I .1 711). two trum th.- I "'"'"hm1 ll · l'I 'I /, " · I JI 'I 1, I) 1111.t 1>111' fmm lhr (",_,,. (1'1-/ "4 II)
•;,•mt• of th<' • cmo nl•tl• 11'-I• 111111111 ''""' tly ltll'l1llfl"cl 1t1 lh<' l"•lltlcm • llr'tl
282 TuE IDEA OF NATURAL RIGHTS
did not intend to prejudice the rights of the local diocesan bishop. When
the pope granted a benefice to some petitioner he did not intend to injure
the rights of some other person who might have a prior claim. And so on.
Las Casas had already stated that the Indian princes held their rights and
dignities by natural law and the law of nations.117 His next move was to
transpose the whole body of canonistic argumentation that he had pre-
sented to the plane of natural law and natural rights.
Indeed he (the pope) knows well that . . . the natural rights of others
which pertain to anyone by natural and divine law ought to remain fixed
and immutable.1111
Las Casas then added that the purpose of the papal grant was not to
enrich the Spanish kings but to evangelize the Indians.119
A little further on, Las Casas cited two passages from the Decretals and
the commentary of Innocent IV, asserting that the pope could not deprive
infidels of their properties and jurisdictions. This view was held by all the
canonists, he wrote, and by the more zealous theologians.120 Then, return-
ing to his original theme, he unleashed another blitz of legal texts. First he
quoted the fifteenth-century canonist Dominicus de Sancto Gemignano
as saying that, "when the pope concedes some new right he is not under-
stood to intend to take away a right that some third party held before."
The jurists Baldus and Bartolus supplied further texts from Roman law to
illustrate the same point.m From all this it followed that the pope's grant to
the Spanish crown was not to be understood as violating the rights of the
Indians that belonged to them by natural law and the law of nations.122
It was true that Alexander had granted the Indies to Spain " with all their
lordships and jurisdictions," and it was true that the pope did not ex-
pressly state that he intended to respect the rights of the existing Indian
rulers, Las Casas acknowledged, but the papal letter had to be understood
117. Dt thtSOuris, 76. Las Casas referred here to the Niuribus aliis et dominio quod, super
sibi subiectos habent, iure naturali et gentium."
118. Ibid., 98, "Seit nempe melius ipse quod . .. aliena iura et que unicuique de iure natu·
rali et diuino competunt, fixa et immutabilia esse oportet.n
119. Ibid.
120. Ibid., 106, referring to X.1.27 and X.3.34.8. For Innocent !V's commentary on these
texts see above, 143-44, 172 n. 3. Innocent IV held that, although the pope did not normally
have jurisdiction over infidels, he could punish them for offenses against natural law. Las
Casas disagreed with the pope about this.
121. Ibid. Many more Roman law texts from Baldus and other juristii were presented in
the following pages. . . . . .
122. Ibid., 112- 114, Nlntelligend11, inquam, Pl dl'CIM11ml111td hnt'm 1•! hm1tes rahonis nalu·
ralis et ne fiant iniurie, uel lurium lll11r11m K"ntlum vlnl11tl11, 1·um ;ut illn11 p<>r1ine;int it1rt>
gentium et natural!, ul lk'J"' dktum ""' N
ARISTOTLE AND THE A M ERICAN INOIANS 283
i~ accordance with the commonly accepted rules governing the interpreta-
tion of such documents.123 And so Las Casas reached his conclusion:
Therefore the said (papal) institutio n, concession o r donation . . . must
n~essarily ~ understood, interpreted, and declared as meaning that the
kings and pnnces of all that region may use and hold free ly their digni-
ties, properties, jurisdictions, regal states and pristine honors after the
said institution . . . as before even though the pope did not mention this
in his letterY~
fn this argument Las Casas characteristically deployed a considerable
bod_y of o[d legal technicalities to elucidate a new situation-the rights of
Indians under a Spanish occupation.
Throughout the De thesauris, Las Casas seems to have been uneasy
about the role that he should attribute to the Spanish kings. He did not
want to deny completely that the papal grant had given them some kind of
right a~ ~gards !he Indies, but he was quite unwilling to acknowledge that
the ex1stmg regime there was legitimate. To complicate matters further
he persistently applied to the Indians and their native rulers the doctrine
he had stated in more abstract terms in the De regia potestate-that all le~
gitimate government must be based on the consent of the governed. At
one f><?i~t in the De thesauris he resolved the issue by another appeal to
canomsttc language, this time distinguishing between a ius ad rem ("right
to a thing" ) and ius in re ("right in a thing"). The distinction had originally
applied to elective offices. As Las Casas noted, when a prelate had been
elected to an office he acquired a "right to" it, a sort of preferential claim
to the_ office; but he did not acquire a " right in" it, that is a right actually to
exercise the powers of the office, until his election had been confirmed.
Then, turning from canon law to the current situation in the Indies, Las
Casas suggested that the Spanish kings were in just the same position as
a prelate-elect. They had indeed received election and institution from
the pope, and this gave them a " title and right" to the Indian realms that
no other Christian king possessed. But this right was only a ius ad rem ; it
could become a ius in re only after it had been confirmed; and in this cast•
confir~ation could come only from the free consent of the Indian peoplt•
;md their rulers. Consent was the "natural foundation and efficient cause"
of the power to exercise jurisdiction, Las Casas wrote. So long as it was
12J. lliid., 116. NE I id1•0 Ul'rh.1 n~ rlpli n•dpi unl limilationcm a iurt' communi, c•l tllllllt'!I
c lausulC' opposite in ~ripto rt',.hh1K1111hir prnt•h'n•n possunt :o;<> opponf'n• 1unnt'!I , 11111,.
"''Knlium tangil, lic1•t non 11111 llli'nlhc ,f,. llll• ....._ 11ncl11m IS.•rnilruum." ( )n bu1 Ci\~1 ,.· furlhi•r
""''of lht• q111-t 1111111rs 11111.1111 I'' h1df'h• .,.,.. 1..-luw 11..- llc•111.1n(11,. mrnlinm'<i hC'rr (i11n1rrN"'l ly
lc h•ntifii>tt hy tlw •'< litnr") I• flt•111111<l11• 1'1111111•11•1• Ii.,. 1r h.,••11t•1• I~ 111 ht, gli11t.• 1111 X 1.2•1 l'I
17-t lhicl . llH
284 THE IDEA OF NATURAL RIGHTS
withheld the king's right was, so to speak, in a state of suspension; without
consent he lacked the ius in re which would give him "the power of ex-
ercising supreme jurisdiction." 125 Here again Las Casas had made a leap
from the technicalities of the medieval canonists to the real-life problems
of his own day.
Let us consider one more example of this kind of reasoning. In a
particularly interesting passage, Las Casas defended the Indians' right to
liberty and their correlative right to consent to Spanish rule by invoking
the legal doctrine of quod omnes tangit-"What touches all is to be ap-
proved by all." A considerable modem literature has grown up around
this little phrase. 126 It first occurred in Roman private law where it signi-
fied that, when a group of co-tutors or co-owners possessed some right in
common, they all had to be consulted in any matter that affected the right.
The maxim was first transformed into a principle of constitutional law by
the canonists; around 1200 they began to argue that, when a general coun-
cil was summoned to discuss matters of faith, even the laity ought to
be represented since the faith was a matter that "touched" them all. Sub-
sequently the phrase was very commonly cited, both in discussions of rep-
resentative government and in actual summonses to church councils and
secular assemblies. Now Las Casas found a new use for it. He had been
arguing that, if the Spanish subdued the Indians by force without their
consent, they would be imposing "a servitude contrary to natural law and
reason." Then he continued;
Whenever a free person and, still more, a free people or community is to
be obliged to accept some burden or pay some due and generally when it
is a question of something prejudicial, especially to many, it is fitting that
all whom the matter touches be called and their free consent obtained;
otherwise what is done has no validity.121
But the acceptance by the Indians of Spanish rule would indeed imply
the assumption of new burdens; and the Indians never had given their
consent to this rule. To legitimate it, therefore, they had to be persuaded
125. Ibid., 316-318, usic est de regibus nostris: habent nempe electionem siue institu-
tionern papalem et sic titulum et ius ad regna illa, quod regum nemo christianorum de
mundo habet. Sed adhuc restat iUis aliud potentius et principalius ius obtinendum, scilicet,
consensus populorum et regum suorum . .. quatenus ius acquinmt in re reges nostri, id
est plenam consequantur potestatem exercendi iurisdictionem supremam .. .. Ergo quan-
diu populi et habitatores prefati, cum regibus suis, libere non consenserint ... tantum
habebunt reges nostri titulum et ius ad ttgna illa, non autem in regnis . . . quia . .. deest regi-
bus nostris naturale fundamentum t't t'fficims catL"1, scilket. .-on!lt'nStlS populorum et regum
suorum.n
126. The ~t di..cu...•hH1 IN hy Yvc•,. ( ·"''K"'· "()lu><I 0111111.,. t1111Kll, ''" 1>nmihu!I ln,ctari 1•t
nppnib11ri .trtwt," Rr1•11r /1/,.r.1rl'fllr<lr 1lt111l f 11mv11• r l 1111111.~-. . 41• ,.,., 'lt• ( 1'1'>11)" '/Ill 2r,~
127. f'lrlhr.<i<J11tn. l!Jtl
ARISTOTLE AND THE AMERICAN INDIANS 285
to consent-with good reasons and sweet inducements, Las Casas sug-
gested.
The argument then took a more radical tum. Las Casas recalled a text
of the Decretals (Cum omnes), where Innocent III had noted that a group
of persons could possess a right either as a corporate whole or as single
individuals. In the first case a majority sufficed in some matter affecting the
right; in the second case the consent of each individual was required. 118
This was another technicality of medieval canon law; Innocent's decretal
referred to the canons of a collegiate church who might hold property cor-
porately or as individual benefices. But, as usual, Las Casas saw in the text
an immediate relevance to the plight of the American Indians. Submission
to Spanish rule would not affect only the kings, lords, and leaders of
the people, he wrote, but also lesser persons and every single individual.
Therefore they all had to be summoned and to consent; the right of all
would be diminished if a free people lost its "sweet liberty." 129 Moreover,
where liberty was concerned, the case was "common to all and many and
to single individuals." In these circumstances the consent of a whole
people or city could not prejudice the right of a single person withholding
consent.130 Even if a majority freely consented to accept an alien king's rule,
since they acted against liberty their action could not prejudice a dissenting
minority; in such a case the opinion of a minority refusing consent should
prevail. 131 All this amounted to a very extreme defense of the individual
right to liberty. Las Casas concluded that, since the Indians were free, they
were granted a power and faculty of consenting by natural law.132
Therefore all, both great and small, the whole people and individual per-
sons, are to be summoned and their consent sought and obtained. 133
128. Ibid., 198. "Quod inlelligitur secundum lnnocentium et omnes, in cap. cum omnrs,
De conslitutionibus, quando aliquid est commune pluribus ... sed ut singulis uel super iure
singulari. Tune nempe, oportet scire et consentire singulos.# "The reference was to X.1.2.6.
This was the same canon.istic text that Ockham used in a different way to buttress his theory
of limited government. See above, 184.
129. Ibid., 202, u • •• reges. principes, et subditi, magni et parui, perdant suam amabilem
libertatem ... . H
130. Ibid., 200, HManifestum, nempe, est quod hac causa, omnes, tam magnos, id at,
reges et dominos . .. quam paruos et singulos oportet uocari. Et omnes et singuli habent con·
'4'nlire; alias nihil ualebat quidquid factum fuerit in contrarium. Nee si etiam omnes, dum
liht>t populo uel ciuitate consentiant, non periudicabunt uni soli non uocato aut non con·
...•ntienti, quod hec cau.Y t~I c-omm11n<' omnibus et pluribus et singulis maxime fouon•
lill<'rtatis."
131. Ibid., 20fl, "lmmo. l't~I mAlnr P""' n>llM'Tlti01t ~ponte sine aliquo !Tl('lu, qula fadunt
n1ntra libertatem, 1wn pr11rlmllnu...1 11011 t u1U•r11tlrntll•11!1, l'I t"Met 11tandum minor! pnrtl nun
t.·c1nst•ntil'Tlt~."
t:\2. lhi<I .• 210, "Ht 1·11111111"'"' ••l•IAlll, " '"A 111at1111\ll l11n- p<>lt'lll111' '"' fnc11ltft1' nin11C"11\11•1wll
1lnt11r rt l'lllllnt1lkrrull ••
1\1 lhl1t
286 THE IDEA OF NATU RAL RIGHTS ARISTOTI.E AND THE AMERICAN INDIANS 287
Again, it was not a very practicable political program. What the De the- widely diffused and was readily available for use by future generations of
sauris achieved was something different. It provided an elaborate juridical jurists and philosophers.
defense of the principle asserted with crisp simplicity in the De regia potes- There is one further point. The Spanish Dominicans were inevitably
tate, "Liberty is a right instilled in men ...." influenced by an underlying Christian attitude that animated all the
Las Casas is often considered an eccentric even by his admirers, and scholastic disciplines, an attitude that attributed a unique value to individ-
the argument we have just considered shows how intransigent he could ual persons as children of God, made "in his image." In this connection
grow in his old age; but the structure of his thought was not eccentric. they often quoted scripture, especially the first chapter of Genesis; but, by
In interweaving juridical and Thomistic arguments Las Casas was typical drawing on a juridical tradition that derived natural rights and natural law
of the whole school of Spanish scholastics, though the appeal to juristic from human rationality and free will, and by appealing to Aristotelian phi-
sources was indeed unusuaUy prominent in his work. losophy (when it suited their purpose), they also showed how a doctrine
This way of thinking, continued later by Jesuit writers like Suarez, de- of natural rights might be constructed without any overt dependence on
ci~ivdy influenced the growth of later natural rights theories. As we saw in Christian revelation.134
an earlier discussion, Michel Villey held that the teaching of the jurists was
always dependent on the work of some preceding philosopher. Specifi-
cally, there could be no jurisprudence of natural rights before Ockham had
invented a philosophy that would justify such a doctrine. But the truth is
more complicated. Gratian incorporated elements of Stoic thought about
natural Jaw into his great canonistic text, the Decretum; then Aquinas made
quite extensive use of the Decretum in his Summa theologiae; then, begin-
ning with Guido de Baisio, the canonists began to cite Aquinas in their
legal commentaries; then Ockham in tum drew on the canonists. What we
encounter in the sources is not a simple dependence of jurisprudence on
philosophy but a persistent interplay between the two disciplines from the
twelfth century onward. The work of the Spanish scholastics exemplifies a
further stage in this process of assimilation.
Current writings on the rights theories of the sixteenth-century Span-
ish authors often assume, either that they found a doctrine of natu-
ral rights in Aquinas and simply appropriated it, or that they "betrayed"
Aquinas by adopting a doctrine that was opposed to his teachings and that
was derived ultimately from Ockham's nominalism and voluntarism.
Both views seem simplistic. Ockham did not invent the concept of natural
rights; it had deeper roots in medieval jurisprudence. And the doctrine of
subjective rights did not formally contradict anything that Aquinas wrote.
It remains true, though, that the earlier Dominican master had chosen to
exclude this meaning from the several definitions of the word ius that he
presented in the Summa theologiae. The Spanish Dominicans were intent on
reviving and propagating the teachings of the greatest master of their
Order. They might have decided to follow his example in this matter also.
But, in the context of their times, they needed a doctrine of natural rights,
above all to cope with the moral probl(•ms raised by the Spanish conquests
in America. Accordingly, they chost• to assc.x:iatt• a doctrine of rights with 1.\4. I •'Ill p.•~~inK ov<'r h1....- lh,. 11 1111plt'• l••lll'" 11hn11I th1• !lt'<'t1l.ui7.-,ti11n uf wliglo1111 ltt1•11•
the Thomist prinl"iplt•s thnt tlwy proft'Slit'ti. ·nwn•sult w.1s that, wlwn nl'W ' "''"'' I hy 11. lll11rnl'nhNK. I llf I '.~111111/lfll 1frt Nfu,,11 ( 1 1111 11 ~ lurt, I 'It.ti). Hwno I• 11t11111• tti11<·u11

prublt•ms ams.• in tlw 1•nrly 11111\lnn 1•r.1, .1tlll'ory11( nalurnl ri~hls was very
•11111 of 11,...,.. I••
1,.,,.,,..• In rt'l11!11111 II• ""'t
1 ·,.,.,.,.In 111 v '" r\tl•t11tl 1• lhf' r\mrrlnm 111111"""
A11111n "

TWELVE
·- .,
•' . . .... .
. . .... _,_ ..,.
RIGHTS, COMMUNITY, AND SOVEREIGNTY
D uring the sixteenth and seventeenth centuries Europe became
divided, irremediably it seemed, into a collection of independent
sovereign states, differing in religion, often at war with one another. The
medieval ideal of a united Christendom had indeed never found adequate
institutionaJ expression. The concept of a universal empire was never more
than a dream; the papal claim to universal temporal authority had always
been contested. But there was at least a common religion that continued to
nurture in its adherents a sense of belonging to a single Christian com-
monwealth. The religious cleavages of the sixteenth century created a new
situation. Christians became alienated from one another and, in Protestant
countries, from their own recent past. Religious conflicts stimulated wars
between the emerging national states and civil dissensions within them.
Given the circumstances of the age, it is understandable that much
political writing of this period dealt with international relations and with
the just conduct of wars. 1 This is certainly true of the three authors I want
finally to consider, Vitoria again, and Suarez, and Grotius; but the themes
in their work that will especially interest us are different ones, concerned
with internal sovereignty and individual rights in an era of expanding
state power.
A widespread understanding grew up in the sixteenth century that a
nation needed strong central government to protect its people against in-
l. Thi5 was especially emphal'lizl'd by J. A. r.-m111lllt•z-Santam11rla, The> Slnlc>. Wnr and
Puce. SponiJlr Polllictil ThollJtlrl in llrt Rmai1111am·r (('nmhrlill(c', 11171) nrnl 11 .( ;. f11Hh'flhown,
Fr«nci11ro dt Vitoria zu KrWK ""' l"rlnlm (( "oluM""· 1'~11)
- 2KK
RIGHTS, COMMUNITY, ANO SoVEREICNTY 289
temal disorders and foreign enemies. National kings were coming to com-
mand greater financial resources, larger military establishments, and more
complex bureaucracies than their predecessors. Their status, moreover,
w~s commonly buttressed by revived notions of royal theocracy-some-
thing the church had frowned on since the papal reform movement of the
eleventh century-now expressed in the doctrine of a divine right of kings.
At. the same time, however, other circumstances of the age, above all the
existence of religious dissensions in various countries of Europe, stimu-
late~ a demand for some limitation of royal power-perhaps by inferior
mag1st.rates, per_ha~s by a representative assembly of estates, perhaps by
an ancient conshtuhon.
.The discussion o~ sovereignty was further complicated-perhaps
~nnc~e~-b~ the persistence of the medieval language of natural rights
m pohtical discourse. It survived especially in the Spanish writers of the
"second scholasticism,"2 and then in Grotius, who eventually handed on
!o the modem world many of the earlier ideas that we have been explor-
ing. In the work of Vitoria and Suarez and Grotius we can trace a devel-
oping tradition of thought that sought to combine a strong theory of state
sovereign_ty ~ith a continued assertion of individual natural rights. Jn this
way of thmkmg, the natural sociability of humans led to the formation of
political societies with sovereign governments; but the sociability itself
was related to the needs of individual persons-especially the need of in-
dividuals to associate with one another for self-preservation and for the
sake of a morally fulfilled life. Some authors insisted further that politi-
c~l ~iety was created in the first place by the voluntary acts of free in-
d1v1duals and that some of the rights that existed in pre-political society
~ere not and could not be yielded to a sovereign community or a sover-
eign ruler. This is the familiar style of argumentation that we find in the
classic rights theories of the seventeenth and eighteenth centuries. It could
be used to support a variety of political regimes. Some authors, most fa-
mously Hobbes, tried to use a theory of absolute natural rights to sustain a
doctrine of absolute sovereign power; but the argument seemed unper-
suasive to most of Hobbes's contemporaries and it was, I think, ultimately
incoherent.3 ln the final outcome, modem constitutional thought evolved
in the way it did partly because the practice of monarchical absolutism
rnu ld not easily be reconciled with a theory of the state expressed in th<'
l;inguage of natural rights. And the most influential thinkers of the ag<' did
not choose to abandon that lilngua~c·.
2. Early Calvinisl n..,.l~lnm·r thM•I Ii•• 0•11111h,.-11.-.l 11111n• lhr pow••r of inf~rior maKl~IMh'"
lh.m th•• natur,11 riKhl" nf l11<1ivklu.tl•
1 l>odrim•" of lh•-.,.·1·.c1h 11l11ul11ll•111 • 1111111 l1t• • ulu•11•11I l•ul tlll'y 11"'1 fon·•· wilh thr
11mw1h ol E11lt11hh•nmrnl 11lllhul"•
290 TuE IDEA OF NATURAL RIGHTS
In this chapter I want to consider Vitoria's teaching on the individual,
sovereignty, and the state, then to summarize the views of Suarez on this
theme and also on some other major topics that we have pursued in the
works of Vitoria and his predecessors-the understanding of ius as sub-
jective right, the origin of a right to property, and the right of resistance to
tyranny.
VITORIA. SOVEREIGNTY AND DIVINE RIGHT
We have already seen how Vitoria derived a doctrine of subjective
rights from Aquinas, Gerson, and an underlying stratum of juridical
thought. We have also seen how the Spanish master deployed his con-
cept of rights in discussing the origin of property and the status of the
American Indians. So far his thought seems coherent and relevant to some
outstanding problems of the age. But, when we tum to the issue of state
sovereignty and individual rights, Vitoria' s writings seem rather to illus-
trate the difficulties that could arise in weaving together various disparate
strands of sixteenth-century thought. Vitoria composed his one systematic
treatise or relectio on the nature of the state near the beginning of his career
at Salamanca, before he had developed his mature theory of rights.4 Un-
derstandably, therefore, there are tensions between the earlier and later
writings; but there are also tensions within the original work itself.
When Vitoria wrote On Civil Pcrwer in 1528 he was working in the
aftermath of the communero revolt of 1520-21 and the German Peasants'
War of 1524. He was also writing in the early years of the Protestant refor-
mation, which Vitoria evidently saw as an antinomian movement threat-
ening all existing political order. "There have been some writers even
among those who call themselves Christians," he wrote, "who have d enied
that kingly power or any kind of rule by a single person comes from God,
affirming that all sovereigns, generals and princes are tyrants and robbers
of human Iiberty."5 Of course this was far removed from anything that
Luther actually taught; but Vitoria's perception of a new heretical and an-
4. "On Civil Power," in A. Pagden and J. Lawrance, eds ., Francisco dt Vitoria. PoliIlea/ Writ·
ings (Cambridge, 1991), 1-44; "De potestatecivile," in T. Urdanoz, Obras dt Fmncisco dt Vitoria
{Madrid, 1960). 149-95. Urdanoz gives a Latin text with Spanish translation. In the following
notes on this work I have given references to Lawrance 's excellent translation since it is based
on the best and most complete early manuscript (MS Palencia 13). The printed editio ns have
many readings different from the Palencia MS a nd omit some key phra~. The changes we re
probably made for the most part by Vitoria's posthumous edito rs . Somt' pl"l'Sumably rt'flcct
Vitoria's own second thoughts. Rcfl'rt'JIC'f'S all' givf'n first l o thf' numht'rt'd parag rap hs tha t
are the same in the LawrancP and Urd11n111: 1>dition~. tht·n lo pag~ in <'i1d1 vt•rsino . I havc> aliw
u!lt'd Lawranet>'s trnnRlntinn of Vlln rl""s C>11 111~ /',111•·111f //1,. C/111rd1.
5. 011 Ci11i/ 1'11wt"r. ?, 1'11/ilin1IW11lm.11~. 11. 11/11 11•. ll~ I
RIGHTS, COMMUNITY, AND SOVEREJGNTY 291
archical source of danger to established monarchies led him to insist on an
immediate divine origin of royal power. At the same time, he was unwill-
ing to abandon the Aristotelian-Thomist doctrine that the state was natural
to man, or the widely accepted juridical thesis that a ruler's power was de-
rived from a grant made by the people. 6 All this made for tensions and
anomalies in his thought.
Vitoria began his On Civil Power by attacking the views of the ancient
skeptics, Epicurus and Lucretius, who had held that everything in the uni-
verse came about by chance. Against this Vitoria presented a picture of
an ordered cosmos in which "every single atom exists for some use and
purpose."7 Then, turning at once to the situation of humans in this well-
ordered world, he explored the origin of the state in terms of Aristotle's
four causes. The final cause--the end or purpose of civil power-was to
satisfy basic human needs. Nature had equipped all other animals with
some means of preserving life by flight or combat-with wings or fangs or
claws. But humans were not endowed in t.h is way; they could preserve
themselves only by forming societies for mutual support.8 The gift of lan-
guage too, and the capacity for friendship and intellectual development all
marked out humans for social life. Quoting Aristotle, Vitoria accordingly
observed that "man is a social animal." The kind of society that most ade-
quately responded to all human needs was a political association; hence
the state (civitas) was the most natural community. It did not come into ex-
istence by human invention or contrivance as something artificial, but was
suggested to man by nature for his safety and survival.9 Finally, a political
society could cohere only if it were ordered by some ruling power; so the
end of civil power was the same as that of the commonwealth itself, to pro-
vide for the urgent needs of human life.
Vitoria next wrote that the efficient cause of civil power was God, for if
Cod created men with a need and inclination to live in political society
under a ruling power, then God must be seen as the efficient cause of both
the society and the power. 10 The material cause of civil power was the com-
monwealth itself, the political community. Civil power must originally
have inhered in the whole community because, when men first came to-
6. The key text of Roman law is Dig. 1.4.1 " What has pleased the prince has the force o f
l.1w because ... the people conferred on him all its authority and power.h There are ~imllar
tt-xts al Cod. 1.17.1.7 and Inst . 1.2. 6.
7. 0 11 Ci vil Pouw. 2, Poliliral Wrllit1J{~. 6; 0 1'ra1', IS4.
II. Ibid., 3, Polilical Wrilit11C'· 7; <>lira, . I 'i4 Vllo rl11 was quoting here directly from I .ad11n·
Ii""· l~ opificio dei, 2.2- 4 aml :l 1 7
<I. Ibid .• 5, I'oli timl Wrr/1111(11, II; f l/1ta•. I '"7
IC!. lhid ., 6, l'nlilwul Wr/111111•. Ill. I l/1111•. I~ '1•1 ··~·I •' IR" I >t•ul' llt"-"<'!lllit11h•m t~t11111 nh111r
ln.-lln.1ll11m•m h11minlh1111 1IC'1llt. 111 111111 In ••" ll'l•t.. "' """ """ puh•11l11IC' "'K''nh• drK••n• non
('"'""'"'· hn1· l1,.,11m I,..,, 1111.-11111111•11111111111,.f.,1 u• '"" ....., ..., •·
292 THE I DEA OF NATURAL RIG HTS
gether in a civic assembly, there was no reason why one individual rather
than another should rule over all, especially since each one had a natural
right of self-defense.11 Most of the difficulties in Vitoria's argument arose in
this part of his text, and I will return to a more detailed consideration of
it. But we may first note that, to complete the Aristotelian framework of
his argument, Vitoria wrote that the formal cause of civil power was
the form of government adopted by a community. Vitoria mentioned here
Aristotle's three basic types of government-monarchy, aristocracy, and
democracy-and expressed a clear preference for monarchy.12
Let us return to the commonwealth as "material cause" of civil power.
Vitoria discussed here both the inherence of ruling power in the commu-
nity and its exercise by a ruler; and he insisted that both the community's
power and the ruler's were of divine origin. He first proved thi~ by pr~­
senting, with a new emphasis, an argument that had been mentioned m
passing by Almain. It was forbidden by divine law, in one of the Ten Com-
mandments, for an individual to kill a fellow man; but the commonwealth,
unlike its individual members, did have the authority to inflict capital pun-
ishment. No human law could override a divine command; therefore this
authority must have been granted by divine law. 13 Vitoria also repeated
here another argument of Almain. Every man had a " power and right" of
self-defense by natural law; therefore the commonwealth, which was also
one body, should have the same right. (Vitoria here applied to the political
commonwealth the words of Paul about the early church, "We being many
are one body, and every one member one of another." ) Just as an individual
could sacrifice a limb for the sake of the whole body, so too the com-
monwealth could "compel and coerce" its individual members, and just as
individuals could not give up their right of self-defense, so too the com-
monwealth could not deprive itself of its own inherent power.••
When Vitoria turned to the power of rulers, he noted that the multi-
tude who formed a commonwealth could not conveniently exercise its
own power and had to entrust it to one man or several. These rulers and
11. Ibid,. 7, Politico/ Writings, 11; 01'ras, 159. HSi enim priusquam in civitatem homines con·
venirent, nemo erat aliis superior, non est a liqua ratio cur in ipso coetu, seu conventu civili,
quisque sibi super alios potestatem vendicaret; maxime cum quilibet ho m o iure naturali
habeat potestatem et ius defendendi se. H
12. Ibid., J0-11, Political Writings. 18-21; Obras, 165-67. Occasionally Vitoria wrote favor·
ably of mixed government in which monarchy was romb_ined with oth~r e~ements. Here he
wrote (P:;litical Writings, 21) that the Spanish government itself was or this kmd.
IJ. Ibid., 7, Political Writings, 11; Obr11s, 160. #Ite m ho minem occidere t'SI iure divino pm·
hibitum, ut patet in praeceptis Dt-calogi. f.rgo auctorila:l occidt'ndi uportet quod ~it_a iu":
divino. Sed respub\ica, ut ex usu el C'On~ut>lmlin(' cum1tl'll, hahl't au<"torll'111•m ocridNuh
hominem. Ergo habet a iure divino: ·
14. Ibid.• 7 . w.1•11t1ti<'11I Writi".'I"· II. 1•1; Clt1111". '""· ''"' ("llw .... , Al I''''"'· l!i'I KiYc'!l '1
~hortl'r re01.tin~ omilllnK lhr n·lrrru.-•• 111 I '11111 )
RIGHTS, COMMUNITY, AND SoVEREIGNTY 293
magistrates, to whom the community delegated its powers, had the
same authority as the community itself. 1s At this point Vitoria launched
his attack on the contemporary apostates from the church who called
themselves Christians but who, "corrupted by their vicious ambitions
and pride," maintained that all kingly power was a form of tyranny. Vi-
toria replied by introducing his own version of a divine right theory.
In opposition to the Protestant error (as he perceived it), he declared
that "sovereigns have their power by natural and divine law, not from
the commonwealth or from men."16 To support this view he quoted first
the Old Testament. "In the Books of Kings, some kings are created by God
himself and others are elected at his command." Then he added sev-
eral texts of St. Paul that suggested a divine origin for a ruler's power:
"(T)here is no power but of God" (Rom. 13.1); "Whosoever resisteth the
power resisteth the ordinance of God" (Rom. 13.2); "For he is a minister
of God ... ." (Rom. 13.4).'7 Vitoria then summed up his preceding argu-
ment in this way.
Let us conclude by leaving these matters and go back to clarify a point
I mentioned before, namely that royal power is not from the commonwealth,
but from God himself, as Catholic theologians believe. It is apparent that
even though sovereigns are set up by the commonwealth, royal power
derives immediately from God. For example, the pope is elected and
crowned by the Church, but nevertheless papal power does not come
from the Church, but from God himself. In the same way, the power
of the sovereign clearly comes immediately from God himself, even
though kings are created by the commonwealth. That is to say, the
commonwealth does not transfer to the sovereign its power (potestas),
but simply its own authority (auctoritas); there is no question of two
separate powers, one belonging to the sovereign and the other to the
community.•a
This is a dense and difficult passage. It is not only hard to understand
in itself; also the propositions set out here in such an unqualified and confi-
dent fashion seem contradicted by Vitoria himself at other points in his
writings, both within the text of On Civil Power and elsewhere. An initiill
difficulty arises out of the suggestion that a king's power came directly
15. Ibid., 7, Political Wrilinxs. 12, "Now although this power and authority Wt' ~pt·.1k 11f
h.-long.~ fir.;t of all and ptr se lo the .-ommonw('alth i~lf. the same authority Ix-long." lo nil...,.
.111.t m<1gistrates lo whom the commnnwt•.i llh ha" tl<'lrgatC'd its powers." Urdancl7. (Obr11~. 1"4'1)
t:ivt•s a different n•ading. Rut l>c•th v..r"i1111• rrfl'r to rult•r.i " to whom lht' rommt1nw C'11lth ""'"
,f,•l1•gatt•d its powrr!<."
In. !hid., II, l'ttlitiml W111i11g•• ... 14. I II•'''"· I r1I· "7. •. 1lln• wg1~ l'liam ,1 lurt' cllvlnu t'111111
111.>li h.•ltt•n• P'' " '"t.,h•m , rl non •I• IJ'.,. 1r1'11hlh • . •nt 1•1111•11• 11h h11mlnlh11• "
17 lhi<I , H. f'Hlillu1/ W'lllllJI•. t'I Ito. I 111111• lro) ''I
IH lhiol . II. l'Hlll/1 11/ W'lllllit•. ltl, 1111111• 1114
294 THE IDEA OF NATURAL R IGHTS
from God in the same way that a pope's did. 19 ln spite of Vitoria's phrase,
"as Catholic theologians believe," this view went against the prevailing
current of Catholic thought. Defenders of the papacy more commonly dis-
tinguished between ecclesiastical and secular government in order to em-
phasize the unique status of the pope as wielder of a divinely ordained au-
thority.
Moreover, it is hard to sustain Vitoria's position within the context of
his own argument. The view that a community merely authorized an indi-
vidual to occupy an office whose power came "immediately" from God
implied that this power did not inhere in the community itself. But there
was no consistency in Vitoria's use of the words potestas and auctoritas.20
A little earlier Vitoria had written that "the commonwealth has power by
divine law" and that the power of a ruler was "none other than the com-
monwealth's power administered through the sovereign."21 This raises
another problem. If power did originally inhere in the whole common-
wealth, and if the commonwealth did not transfer its power to the ruler,
as Vitoria stated in the passage quoted above, than it would seem that
sovereignty remained fundamentally with the political community. This
view was quite commonly held in Vitoria's day, especially in the schools
of Paris at the time when he studied there. It carried the implication that
the whole community was always greater than the ruler it established.
But Vitoria rejected this view. Instead, he wrote that a king was above
the commonwealth, "not only above any individual but above all the
citizens together," and that there could be no appeal against the king to
the commonwealth.22 In the same vein Vitoria wrote, citing scripture, that
kings were not "ministers of the commonwealth" but "ministers of God.''D
And yet, at still another point in On Civil Power he compared a monarch to
the commonwealth's "appointed agent."2 4
19. In the text given by Urdanoz the parallel between the origin of royal and papal powec
was omitted. 11\e later comments of Vitoria in his Rtltctio dt potrstatt ecclrsiastica given below
suggest that he changed his mind on this point.
20. In the passage quoted in the text above he asserted that the community did_~ot
transfer power to the ruler but only authority. But a little earlier in the same work (Polrticol
Writings, 12) Vitoria wrote that Hauthoritybelongs to rulers and magistrates to whom the com-
monwealth has delegated its powers. ..." (emphasis added). For various other usages of
auctoritas and potrst/IS see Political Writings, 18, 50, 53.
21. On Civil Por«r, 8, Political Writings, 14; Obras, 162. Again the wording in the Obras text
is different, but to the same effect. " Ergo potuit commendari potestas quae eadem est quae
reipublicae." The anomalies in Vitoria's thought were noted by Oecke~; he found Vitoria's
various assertions to be baskally incompatible with one another (Ctm:h11xkt1I, 285).
22. On Civil Por«r, 14, Political WritinX'· 30-31; Olm1s, 179-80.
23. Ibid., 8, Political WritinXf. 17; Obros. IM."... prindp<"' IJci mm w ipuhlira<' ministro:o
appellat (scriptura)."
24. Ibid., 12. Polilin1/ Wrili11.~~. 21. ' Jl14• rhr111M• h• 11111l1h..l l11<1/rriu. Vllorl" wu MKUlllK lwn•
that a ~·pl1• niulil l11wf11lly ht• punl•h<'•I Im 1111 uffrnM• 111 ti" l.hlK Whr11 i\lm11in ""' ' tli"
R IGHTS, COMM UNITY, ANO SoVEltElCNTY 295
The texts of Vitoria's On Civil Power are ambivalent then. His later
writings seem more dear and consistent, but only because he tacitly
abandoned the idea of a direct divine origjn of a ruler's power, without.
however, ever recanting his earlier view. In Vitoria's first relectio on ec-
clesiastical power (De potestate ecclesiastica), he wrote, "[A)ll the power
of secu]ar princes comes from the community," and "lT)he power of
princes comes wholly from the commonwealth."2S Vitoria seems to have
forgotten his earlier distinction between a transfer of power and a grant
of authority. The focus of his interest had shifted. In writing about the
church he was concerned to contrast the power of secular princes with that
of ecclesiastical prelates, whose offices really were directly instituted by
Christ in a way different from those of temporal rulers, as Vitoria now
acknowledged.
There was also another change of doctrine in Vitoria's later teaching
about the origin of the state. In On Civil Power, political society was "not a
human invention or contrivance"; it was rather "implanted by nature
in man" and endowed with a power conferred by God. But, in his com-
mentary on Aquinas, Vitoria envisaged separate individuals in a state of
nature, each already endowed with a right of dominion, coming together
voluntarily to make a division of property. They could do this either by en-
tering into mutual agreements or by electing a ruler to make the division.21>
There was no suggestion here of any divine right implanted in the com-
munity or in the ruler; the original right inhered in the individuals who
came together. Again, in the earlier work Vitoria argued that the power of
a commonwealth could not be derived from positive law because the com·
monwealth had to exist before any such law could be enacted.27 But in the
De lndis he wrote that, although man was a civil animal, nevertheless civil
power "was not instituted by nature but by law."21
In his commentary on Aquinas, instead of basing a theory of sov-
t.•reignty on divine right, Vitoria opted for one of the standard secular
arguments in support of strong monarchy, the d octrine that a people alien-1
.1ted its own ruling power in the act of constituting a ruler. Vitoria argued
here that once a commonwealth had given its power to a king it could not
• u!<sed this same point he held the people responsible prt'Cisdy because the comm1111i1y ,..
t.1inl'd its o wn jurisdiction and so could correct an erring ruler. Vitoria mel't'ly wmll' th11t tlw
t""'lflle ought to have elected a ju11t rul<'r in thl' first placl'.
2"i. O n tl1r Pori!t'r of lhr C1111rd1. 2 ..1, 2.7. f'1•lil in1f Wrilinxs. 103, 107; Obrns, :l20, :l2"i. 111 lhr
·u-.·rn1d l<'xl Vitoria argued th.it 114•n1IM prlnc-.•11 n111ltl not t.ikl' away the lilX'rtiPll nf th1• dmrd1
l•1-.·.uoil4.' tht>y wt•re ~ranlt·d hy 1111' wholt• ( luholt•lll 1·u1111111111wt•alth. I It> 11t't'nl8tu1u.•um1•. h11
1111• p urpost• of thi~ ;u-gurnrnt, th111" rulro I• hu1111tl hy tlw l11w of !ht• t'o mm11nlty.
2<•. f)r j11~tilr11. 2.2'1r t•) I. r•I 11.,,,,,11 ... 1 11111111ml11t11" :17K (""' 11hovr, 2.'iK, n 1f>1m1I 1h4)
. }'! I llr I ·;111//'t111~·r. 7, f't1/lll1~( W11t11111•. I I fl l1111ttr1l l11 I Jt•m•)
7K I Ir lmf,.. ' "' l'nl'l\111111111'1111.,, l'1•11ttt111. J J. \"/ . •· 111111 lt11111•111111hlr11 l'<'ll l1•1tr, """II
'"'"...,..
296 THE IDEA OF NATURAL RIG HTS
retain that power for itself, "otherwise it has not given it."29 He still, how-
ever, maintained that the community could depose a tyrannical king by
exercising its inherent right of self-defense: "{E]ven if the commonwealth
has given away its authority it keeps its natural right to defend itself." 30
I can see no way of explaining the inconsistencies in Vitoria's writ-
ings except to assume that the author changed his mjnd about the origin
and nature of the state during the 1530s. Perhaps he came to see that the
Lutheran and Anglican doctrines of the monarch as a kind of prince-
prelate, head of the church as well as of the secular commonwealth, was a
greater source of danger to traditional Catholic order than the threat of an-
archy that he had at first perceived. This was strikingly illustrated in 1534
when, in order to validate the divorce of King Henry VIII from the Spanish
princess Catherine of Aragon, the English parliament declared that the
king was "the only Supreme Head in earth of the Church of England."
Another set of problems, especially relevant for understanding Vi-
toria's thought on natural rights, concerns the relationship between in-
dividual, community, and government once a political society had been
established. The descriptions of the state that we have mentioned so far
seem essentially holistic, without any concern for individual rights. The
right of self-defense was mentioned only as a metaphor to emphasize
the organic unity of the state. Individual members of the commonwealth
were compared to limbs of a human body that could be sacrificed to pre-
serve the well-being of the whole. The implications of the argument seem
starkly absolutist. Yet in other contexts, as in the De Indis, Vitoria devel-
oped an overt doctrine of natural rights inhering in individuals, especially
the right of self-defense.31 Like Gerson he apparently wanted to uphold
both individual rights and community values; but in the Spanish thinker
the two sides of the argument were developed separately and not formally
related to one another.
For a good illustration of the coexistence of the two lines of thought,
corporatist and individualist, in Vitoria's work we can tum to his Relectio
de homicidio (On Homicide), which in fact was mainly about suicide. In this
work Vitoria again discussed the organic structure of the state, but in a
29. V. Beltran de Heredia, ed., Comment1ma al Tratado dt la ley: (In 1-11, QQ.9a-108J; frag·
mmtos th meccion~ (Madrid, 1952). On 1.2ae.105. l , 81, "Ad argumentum , respublica facit
regem: Ergo est supra regem, nego consequentiam; quia s i dedit suam potestatem regi, non
retinuit illam sibi, alias non dedit" Vitoria repeated here his argument that the king should be
greater than an the citizens together. not just great~ than each individual.
30. Ibid., l .2ae.105.2, 82.
31. Vitoria maintained that there was a natural right of !l('H-deft>nSf" t'Vt'n again~t an evil
pope. Dt poleslalt papat rt roncilii, 2.'l, <lhra~. 487, " (.)uia vim v i W!"'llc•n• llo•t iun• naturali . . .
no n q•Jod aliquid pcis.wt ..,.,... lu.11·- P"I'""· "''•I pc•r moclum olrlf'm•lcml.'t l ·ullihc•I ••nlm c'l'I in~
ad n'\'li.~tt>ndum inluriftf' rt lmprcli••ncl11111 clrlr111lr11.t111111111r "
RIGHTS, COMMUNITY, AND SOVEREIG NTY 297
context that was mainly concerned with the individual's duty of self-
preservation. He also presented here a detailed account of the right of
self-defense and of the manner in which it couJd properly be exercised.
In the De homicidio, Vitoria offered an extended defense of Aquinas's
doctrine that a natural inclination was indicative of a preceptive natural
law where rational creatures were concemed.32 The inclination of all crea-
tures to preserve their own being indicated that, for humans, there existed
a natural law prorubiting suicide.33 Also, suicide was contrary to the scrip-
tural command, 'Thou shalt not kill," and to the scriptural injunction that
a man should love himself as well as his neighbor.34 Finally a man was not
the master of his own life in the same way that he was an owner of external
goods. If he killed his own horse or burned down his own house he did no
one a n injury. But, as regards human life, "Only God is lord of life and
death." 35 So a person who killed himself did an injury to God.
On the way to this conclusion Vitoria raised various objections. One
of them suggested that a man's inclination to preserve his life would con·
flict with his duty to prefer the common good to his own private good.
But Vitoria denied here that man was by nature inclined to love his own
good more than the good of the community. On the contrary, he wrot<'
that, "man, whom God has made part of the commonwealth, is inclined by
nature more to the common good than the private."36 He then presented
again his organic image of the state in which individuals were compared
to members of a human body, existing not for themselves alone but for th<'
sake of the whole. According to divine and natural law, Vitoria wrote,
it was licit to kill a man harmful to the state since a single member could
be cut off for the good of the whole body.37 Returning to his argument on
suicide, Vitoria concluded that a person who killed himself injured thl·
commonwealth as well as God. "One who kills himself takes away from
the commonwealth what is its own." 38
Vitoria's argument in the De homicidio points to another unresolved
tension in his thought, for in the commentary on Aquinas, written a littll•
later, he observed that sinful man was more inclined to pursue his own
32. Vitoria was arguing against the Lutherans who s harply separated nature i\ncl grim·
.incl denied to unaided human nature any capacity for rig hteous behavior. See Dt' homic·illic•, 2,
0/lrns, 1090.
33. Dt homicidio, 10, Obras, 1106..
34. Ibid ., 1106, 1112. ln Dt ltllll't'rantia, 1, Obras, 1007, Vitoria cited Ma tthe w 22.:\Q, "Thou
.~h.1 ltlove thy neighbor as thyllelL"
.1 5. CH ho111iddio, 23, Ohrtt<, 11 IA .. Nnn ,.,.1 nut.-m ita d ominus aut corpuriii a ut vilnc• pru
pri.w. Est Pnim ~olull I >ru,; 1lomlnuo• vlt11r c•t mnrll,;."
.16. lhid ., 10, ( l/lra.•, 11 Cl.1
.'7. Ibid ., IR; t>l•r1u, 11111; VII nth• l11•l•lr.I. howrvn, lhnl lhl" pc•w1•r brlnn~rtl only tu
puhlk mnKl!'lmt..,.. nnl '"I" l1111lt1 l111llvhlmll11
U1 ihl<I . 77, I l/11110, 111 J, .. 1'1"11•tttl•111' hlll 1111lr11 "rrp11h1l,·11 c1111Ml N1111111 l'!ll ..
 298 THE I DEA OF NATURAi. RIGHTS
good than the common good. Commenting on this anomaly, Deckers sug-
gested that, arguing as a theologian in the De homicidio rather than as a
moral philosopher, Vitoria rejected the idea of an inclination to one's own
good.JIJ But this is not really true. For Vitoria, suicide was not only harmful
to the commonwealth but also a sin against charity, the love that a man
owed to himself. This could imply a corresponding right to defend one's
own life. And in fact, in the De homicidio, the argument for a community's
power over its members was accompanied by a particularly careful and
nuanced treatment of the individual right of self-defense.
Vitoria was quite clear about the existence of this right. A man
could even kill in self-defense and, if he did so, he was exercising an au-
thority derived from God through natural law.40 But Vitoria also had to
deal with a related set of problems common to the casuists of his age. Self-
preservation was commonly seen as a precept of natural law and so as a
duty owed to God; but Christian scripture extolled the act of sacrificing
one's life for another as supremely virtuous.•1 Moreover, self-preservation
as an obligation, a duty owed to God, would seem to exclude rather than
imply a right of self-defense if a right were seen as defining an area of per-
mitted conduct where an individual was free to act or not act. Some au-
thors, like Henry of Ghent whose work we considered earlier, simply
assumed that there was a class of rights that were also duties, rights that
had to be exercised in case of necessity. Vitoria offered a more subtle solu-
tion. He addressed these problems by distinguishing between God's right
and a person's own right in his life, and between the possession of a right
and the manner of its exercise.
Although, as was said, man is not the master of his body or his life as he
is of other things, nevertheless he does have something of mastery and
right in his own life, so that if anyone harms his body he not onJy does an
injury to God, who is the supreme lord of life, but also to the individual
man himself.<Z
This right of a man in himself was a right understood as Vitoria under-
stood the term elsewhere-it defined a zone of human autonomy, an area
of licit behavior, where a man could act as he chose. Although a right of
39. Gertchtigkeit, 58-62. "Theologisch ist d ie Annahme eine m clinatio ad bonl4m proprium
absurd" (58). In the Dt homicidio Vitoria asserted o nly that the inclination to one's own good
was less than the inclination lo the common good.
40. Ibid., 11, Obra.s, 1108.
41. Ibid., 24, Obra.s, 1121. Vitoria cited here John 15. 13, "G reater lovt' than this hath no
man, that he lay d own his life for his friMld.''
42. Ibid ., 24, O bras, 1119, "Pro quot'l'I cnnllideranJum '(UO.I lkt'I (ut tlidum t'SI) homo nc>n
s it dominus sui corporill, aul viliw .!" lilt' llin1t ali11rum n•rum. tanwn .1lit111i.t .tu minii l'I iuri"
habet in vii.a llllil.• rnti111w n1h'" 1111i .,,,..,., in 1·or1><m• 111111 ,..,111111 f.u·il I '),•11, 'I"' ··~I ~llflD.'.IU!lo'.i
dominu.~ vita<>, 11t'<i 1•tlam lp~I homlni prlv11to. Ina ml nm ··
RIGHTS, COMMUNrTY, AND S0VER£1GNTY 299
self-defense always existed and could not be alienated a man might choose
not to exercise the right he possessed in his own life. He could not deliber-
ately kill himself, for that would be an injustice to God, "the supreme lord
of life"; but it was sometimes permissible and even laudable for him to set
aside his own right in his life and to accept death for the sake of another.43
Vitoria presented this as a controversial doctrine. Many, he wrote, held that
a private individual could not relinquish the duty to preserve his own
life.« But Vitoria thought the opposite view more probable. Jesus did not
defend himself against the Jews and gentiles who condemned him un-
justly. Christian martyrs had accepted death voluntarily even when they
could have resisted.6 Vitoria argued further that, if two men were in a stale
of extreme need, one could give up his bread to save the life of the other. A
shipwrecked sailor could abandon the plank he clung to so that his king's
life could be saved or, indeed, to save any friend or companion.% A man
could even sacrifice h is life to save an enemy. A person attacked by a robber
could certainly kill his assailant in self-defense; but he would act more
perfectly if he yielded his own life rather than send the thief to eternal
damnation. In many cases, Vitoria wrote, a man could licitly preserve his
life and yet was not bound to do so.47 Here again a right, including the right
of self-defense, conferred a certain freedom of choice on the right-holder.
In Vitoria's De homicidio we encounter both a strongly organic theory
of the state (as in the De potestate civili) and a strong theory of individual
rights (as in the De Jndis); but the two themes were not related to one an-
other as aspects o f a coherent theory of the state. (To present a theory of the
state was of course not the purpose of the De homicidio). To understand
how the two themes could coexist in Vitoria's work without his show in~
any awareness of a p otential conflict between them we need to remember
that, although the metaphor of the community as an organic whole was
very common in medieval thought, it was only a metaphor and was com·
monly understood to be so. Aquinas carefully explained this, as we nokd
in discussing Gerson, when he wrote that the image of the church a~ a
mystical body referred to "a resemblance . . . not an exact corresponde nn·
or identity."~ Following Aquinas, Vitoria emphasized the same point in
his second relectio on ecclesiastical power.
43. Ibid.. 24; Obras, 1119-20, " Hoc ergo iu s quod homo habet in proprium rnrpu"· poh'!Ot
homo laudab iliter dimitlen> rt pt'rclc•n•, qu;tmvi~ habeat iu s se de£t'ndendi, l'I ~ic p 11tirnlrr
fr•rrt• morlC'm.''
44. Ibid., 2.'i, 0/1ra.• , I 121.
4fi . lhid .. 24. ()/1rn.<. 11 l'l.
4l>. Ibid .. 2.'i, Cll1tu:., 1122 1 I
47 lhirl .. 24. c >/rr11~. 11 IH l'I
4K /\hov1•, 21111 'JU 1'1>1 fl •111111"1 11111111111•111 In I>.• •,.,,., M·•· 11 I l.u11Ht1111, l 111lrli1111 l1111tt)lltl
11tj:.,.1 rml/1 t ·,.,,,,,,., S/l<llll (t hh•11I l'lfl II. It
 300 THE IDEA OF NATURAL RIGHTS
Furthermore, the parts of a natural body are disposed entirely for the
good of the whole, whereas the individual members of the church are
for God and for themselves alone; the good of a private man is not even
principally, let alone entirely, ordained for the good of the whole com-
munity.49
Commenting directly on Aquinas, Vitoria wrote that a human legislator,
whether civil or ecclesiastical, was not "master of the whole man as one is
master of a horse." The ruler could not take the life of an innocent person;
anJ, generally, a human law did not oblige if obedience to it entailed
death for the individual.50
In many scattered contexts Vitoria referred to rights that persisted
after the institution of the state. There were property rights for instance.
"[I)t would be tyrannical to deprive men of what is theirs by natural
right," Vitoria wrote.s1 And, again, "[T]he king of Spain cannot take goods
from his subjects and merchants."52 Vitoria also mentioned a right to marry
freely. It might seem, he wrote, that any right derived from a contract
would be subject to the authority of the state; but in fact neither the state
nor the church could compel an unwilling couple to marry.53 Sometimes
rights could be exercised against the positive law of the state. Like Henry
of Ghent centuries earlier, Vitoria argued that a criminal condemned to
death ought to escape if he could. And if he were condemned to death by
starvation he should nevertheless take any food that was offered to him.54
In discussing theft, Vitoria reiterated the o!J canonistic argument that in
extreme necessity all things were common. In rather typical fashion he
quoted Aquinas here but grafted on to Aquinas's text a language of rights
that Thomas himself had not employed.
49. On the POUla' oftMChurch, 15, Polilict1l Writings, 119; Obras, 365.
SO. De fortitudine, 2.2ae.125.4, in Beltran de Heredia, Commentarios 5:363-64 ''. .. non est
dominus totius hominis sicut est dominus equi, nam sine culpa non potest me interficere; et
ideo non potest talem Iegem condere quae sit obligatoria circumstantia mortis." But Vitoria
conceded here that a citizen could sometimes be required to defend the commonwealth at the
cost of his own life. HQuia miles tenetur ire ad bellum quando vocatur a rege, non obstante
rerta morte" (368).
51. Dt justitia, 2.2a.e , 66.l, Commentarios 3: 323, " Hoc dico propter reges qui non possunt
sine caus:a rationabili appropriare aliquod thesaurum . .. quia esset tyrannicum privare
homines de illo quod est de jure naturali.n Vitoria here was referring to the right of the first oc·
cupant of a "5 nullius. Elsewhere he wrote that a ruler was granted gu~rnatio (government),
not dominium ruum (ownership). See Tratado dt Ia fry, 1.2ae.105.2, 83.
52. De justicia, 2.2ae.66.8, 344.
53. Dt matrimonio, 7, Obras, 893-94. Vitoria held that a forced marriage would frustrate
the principal end of matrimony, the fl'aring of c·hildl"l'fl, which rt'<)uin•d a relationship of
mutual love.
54. Dt homiridio, 28, Obrn~. 1121.
RIGHTS, COMMUNITY, AND SoVEREIGNTY 301
St. Thomas .. . says that all things are common in extreme necessity. If,
then, they are common I have a right to them.55
Vitoria even wrote that, in order to assert their right, persons in extreme
need could kill the rich who withheld food from them.56
In his later writings Vitoria offered all these remarks about particular
rights outside the framework of his original theory of the state. One could
i wish that he had presented his major discussion on political theory near
I the end of his career at Salamanca instead of in his first relectio. He might
then have provided all the clarifications and qualifications that could have
accommodated his later insights within a coherent doctrine of sovereignty,
community, and natural rights. As it is, we have a kind of divine right
theory of government combined with an Aristotelian conception of the
state, and an organic theory of the state accompanied by frequent refer-
ences to individual rights. For a more systematic treatment of these themes
we may turn to one of Vitoria's great successors in the school of Sala-
manca, Francisco Suarez (1548-1617).
S U AREZ, SOVEREIGNTY AND NATURAL RIGHTS
ln the seventeenth century Suarez was probably the most widely read
and influential of all the masters of the Spanish "second scholasticism." As
a youth he had a reputation as a slow learner (like Aquinas); but eventu-
ally his patient and powerful mind produced an impressive array of works
that provide, besides Suarez' own distinctive views, an encyclopedic over-
view of late medieval scholastic thought.57 By the time Suarez wrote, it
was becoming evident that the revived theories of royal theocracy could
threaten the traditional autonomy of the Catholic church. Unlike Vitoria,
therefore, Suarez wanted to formulate a theory of sovereignty and the state
that was based solely on human will and consent, without any direct
divine grant of power to the ruler. In the same year that he published his
55. De j11slitin, 2.2ae.66.8, 341, " .. . et ita videtur dicere hie sanctus Thomas, qu ia didt
c1m>d omnia sunt communia in extrema necessitate. Si ergo sunt communia, habeo jus ad ilia. H
56. Ibid., 2.2ae.118.4, Commentarios 5:264-65, "Quia illi qui sunt in extrema ne«>ssit,.tt•
po.~sunt licite capere a divitibus et eos interficere si nollent dare, quia habe.nt jus ad ilia in tali
m-<essitate. Vitoria here was following a'! opinion of Cajetanus.
H
57. Two important earlier works are H. Rommen, Dit Stnatslthrt drs Frn11z S1111rr.
( M iin <·h en-Gladbach, 1926) and L. R<'C11!1<'n.• Sic-hes, La filosofia dtl dt'rtcho dt Fr11ncis.·" S11an'z
f M<'ldm City, 1947). 11ll' be!ll tn•atm1•nls c>f Suan•7.' political theory arc G . Jar lot, " I A.,. ictcot\•
politiqurs de Suan-7. rt Ir fl(l11Ve>ir """olu,'· Arclrir't'" tfr 11/rilosophir IR (194Q): 64- 107, J. r' Som
nwTVilll'. " From Su.1re7. lo r:ilnll'r A l<r'*t'J'llll~111 :· I /i,.tc1rirnl foum11/ 25 (191l2)525-4tl, "ml I< .
Wih•nius, Tiw ,c;,,.-;11( 11111/ /'11/ltini/ / /1,.,11V1•f I 111111h111 .'lwrr~.t (I ld.~inki, I %3). For t>io~raphy ,..._.
I 11. l'khh•r, Mtm 11/ Sr"'"'· 1'11111.-1• .'111111r: (N"w Yt•t~ . 1'142) l\mplt• hlh! i0Kr.1phk 111 unit.,.""'
p1e1vidc•cl in !IN' 1•11llh1n ol tlw I It /r.~fl1110 llelC11l h1•l"w (11 '\•I)
 302 """fttE IDEA O F NATURAL RIGHTS
massive De lege ac deo legislatore (On I.Aw and God the Lawgiver), Suarez also
wrote a Defensio fidei catholicae that was directed specifically against the
divine right theories of King James l of England. For us it is important that
Suarez' theory of the state was set in a broad-ranging discourse on natural
rights, natural Jaw, liberty, the right to property, and the origin of political
societies.
As is usually the case with major political thinkers, modem scholars
disagree about various aspects of Suarez' thought. Historians of philoso-
phy argue about whether he created a distinctively Suarezian metaphysics
or remained faithful to the broad principles of Aquinas' s philosophy.
(Villey, characteristically, held that Suarez' teaching was corrupted by "the
poison of Ockham.") Suarez has been called a voluntarist and a rationalist,
an organicist and an individualist, an absolutist and a constitutionalist. 58
The Spanish scholar himself did not think it necessary to choose between
these alternatives; rather he sought to balance them against one another
in an inclusive synthesis. In the sphere of thought that concerns us, the
history of natural rights theories, Suarez can best be understood as a
continuator of the line of thought that we have traced from the twelfth-
century canonists onward. Like Vitoria and Las Casas, Suarez wanted to
show how an originally juridical tradition of rights thinking (a tradition
Suarez knew well), that had been transmitted by theologians like Ockham
and Gerson, could be harmonized with a Thomist doctrine of natural law.
The initial dependence of Suarez on Aquinas is evident in the Spanish
scholar's fundamental discussion on the various meanings of the word ius.
Suarez began by proposing two etymologies. lus could be derived from
either iubendo (commanding) or iustitia (justice). (A third possible deriva-
tion from iuxta was brushed aside as unacceptable.59) Pursuing first the
derivation from iustitia Suarez wrote that, in this sense of the word, ius
meant the same as "the just and fair, that is the object of justice." He added
that the word "justice" itself could have two meanings. It could refer gen-
erally to any virtue; but, taken more strictly, it indicated the particular
virtue that rendered to each his own. Similarly, the word ius, taken in a
strict sense, signified what was justly due to anyone. Suarez cited here a
58. Wilenius, Political TheOr!J, 108, described Suarez as " intensely anti-individualistic."
Fichter, MllTI ofSpain, 243, called him "a champion of human liberty." The Cambridge History of
Politic.al Thought, 1450-1700, ed. J. H. Bums (Cambridge, 1991) contains two appraisals o (
Suarez written separately by H . A. Lloyd and J.H .M. Salmon. Lloyd wrote, " In sum the thrust
o( Suarez' arguments ... was ... towards absolutis m" (297). According to Salmon, " N11 o ne
who reads attentively his answer to James l's ApoloXir can maintain this (absolutist) interprc·
tation. ..." (239).
59. Tractatus dr lr!(ibus II<" l>ro lrxislnlrirt", t•d. I .. l'1•rl'i'1A, V. i\hril, .111d I'. Sunc•r, I\ vol!!.
(Madrid, 1971-81 ) I: 1.2. 1-:1, 211 2:\. f l11i" 1·1lillt•11 i11d111ll'11 o nly llw Hr"! Four ll.~1k1111f rlw Pr
lr.l{ibus.)
RIGHTS, COMMUNITY, AND SoVEREJCNTY 303
passage of the Summa theologiae where Aquinas defined ius as "the object
of justice" and "the just thing itself."60
So far we seem to be moving entirely in a world of Thomist thought.
Jus is something objective, "the just and fair," or what is justly due to som~
one. But then the argument took a different tum. Suarez next wrote:
According to the latter and strict signification of ius, it is customary to
call ius properly a certain moral faculty that anyone has either regarding
his own thing or something due to him; and so the owner of a thing is
said lo have a right in the thing (ius in re) and a workman is said to have
a right to his wage (ius ad rem). . . .61
By associating the juridical language of ius in re and ius ad rem with
Aquinas's definitions, Suarez arrived at a subjective understanding of ius
as a moral faculty inhering in a right-holder. Suarez did not present this as
an alternative definition, different from that of Aquinas. He seems to have
assumed that this is what Aquinas meant all along.
Suarez went on to give a similar reinterpretation of Ulpian's welJ-
known definition of justice as a virtue that " renders to each his right."
Here again Suarez took the word "right'' (ius) to refer to a legal claim right
(actio) understood as a moral faculty. The association of ius and actio is
found in classical law, but neither term was understood as a moral faculty,
and this is certainly not what Ulpian had in mind in his famous text.62
Finally Suarez turned to the second etymology that derived ius from
iubendo (commanding). In this sense, he wrote, ius meant the same as lex
(law) because law was a form of command. This meaning was often used
by the jurists, Suarez noted, as when they distinguished between igno-
rance of fact and ignorance of law (ignorantia iuris).&3
To a modem reader it will seem evident that Suarez gave three defini-
tions-the original Thomist meaning, "the just" or "the object of justice";
his own understanding of ius as a moral faculty or subjective right; and fi-
nally ius as meaning law. But Suarez himself wrote that he would give only
60. Ibid., 1 2.4, 24, citing Summa thtOlogiae 2.2ae.57. l.
61. Ibid., 1.2.5, 24, "Et iuxta posteriorem et strictam iuris sign.ificationem sole! proprie iu!!
vocari facultas quaedarn moralis, quam unusquisque habet vel circa rem suam vel ad ttm slbi
Jeb ita m; sic enim dominus rei dicitur habere ius in re et operarius dicitur habere im1 Ml
:<tipmdium. ...-
62. Ibid., 1.25 , 25, citing Di.~t$t I.1.10, "lustitia est constans et perpetua volunta_~ iu!I 11uum
niique tribuendi." Suart'7. C"omm..ntrcl, " 111.-i t>rgo actio seu moralis faculta!I qu;im un
usq11isque habt't ad ttm suam vrl .,,f n·m 1111 M' nliquo modo pertinentem didtur iu11." ( >n ""
.md actio in sixleenth ..·rnlury law ...... 1• S h• l11, '" I i.u1t•l111~ 11nd the Origins of lht' Mudl'm ( 'lvtl
I.1w,µ in M i'latr]ll'S l"rln WuMlf'.'°'' I fl. i\111<11111 rl itl (l'rihoul"K, 1993), 42<1· S2. l>onC'll1111 diN
linKuisht'(I hl'lwt't'll" prlllMty 1111h1 lo 11 th1t114 1m1I "011•1·11111fory r iKhl lhm1111h whkh "dnlm
, 1111111 hc· p11r.ot1t"<I In, 0111 I
1•1 1'1111 • I 1 h, 7h
304 THE IDEA OF NATURAL RIGHTS
two definitions.64 He apparently regarded the first two meanings as merely
different ways of saying the same thing. As Finnis wrote, "If you like, it is
Aquinas's primary definition of 'jus', but transformed by relating it exclu-
sively to the beneficiary of the just relationship." In other contexts Suarez
gave only a twofold definition but still associated the idea of ius as a moral
faculty with the teaching of Aquinas.
lus sometimes signifies a moral faculty to a thing or in a thing . . . which
is properly the object of justice as we know from St. Thomas.. .. Some-
times ius signifies law, a rule of righteous conduct. . . . 65
Some modem neo-Thomists have been especially unhappy with
Suarez' definition of ius as a moral faculty. Louis Lachance wrote that St.
Thomas never dreamed of such a definition, and complained that Suarez
was making human will the basis of morality.66 Of course Suarez had no
such intention. In the passage just quoted he went on to establish a cor-
relation between ius defined as a moral faculty and ius understood as law,
"a rule of righteous conduct." Aquinas himself never defined "right" as a
moral faculty or conceived of it in that way but, as we noted in discussing
Vitoria, the subjective definition can reasonably be seen as complementing
Thomistic teaching. And Suarez was not innovating here. After Vitoria had
shown how a subjective understanding of ius could be derived from
Aquinas and Gerson, definitions of the word as a faculty or power became
quite common among sixteenth-century theologians.67 (Suarez mentioned
Driedo as the immediate source of his own definition.)
When Suarez turned to natural law he wrote, again referring to
Aquinas, that this law "dwells in the human mind to distinguish the righ-
teous from the evil."68 Suarez accepted the usual view that natural law
was known by a "dictate of reason" or "judgment of the mind."69 But he
64. Ibid., 1.2.4, 23. luxta has ergo duas vocis derivationes, nomen ius duas praecipuas
habet significationes... ."
65. De ltgibus 3:2.17.2, 100. FOi' other examples of the same twofold definition see 2.14.16,
33 and 2.18.2, 115. Also Dt statu ptrfeclionis in Francisci Suartz . . . operll omnia 28 vols. (Paris,
1859) 15:8.5.12, 565 and Dtfmsiojidti clltholicat, Opera 24:4.9.11, 396. For the comment of Finn is
see J. F'innis, Natural Law and Natural Rights (Oxford, 1980), 2('JJ.
66. L. Lachance, LL conctpt dt droit st/on Aristolt ti S. Thom11s, 2nd ed. (Ottawa, 1948),
294-95. Composta also emphasized a shift from an objective sense of ius in Aquinas lo a sub-
jective sense in Suarez. See D. Composta, " La 'moralis facultas' nella filosofia giuridica di
F. Suarez," Saltsianum 18 (1956):476-97 and " La persona umana e i diritti soggetivi in p ros-
petiva metafiska,N lustiti111:7 (1974):42-72.
67. Many texts are presented in A. Folgado, Evoluci6n hislom:11 dtl conct'plo drl drrtrho s1Jb--
;t1ivo (Madrid, 1960). See especially Molina' s definition of i11s as fnculla.< (200) and Folgado'!I
criticism of Lachance's under5tanding of Suan•7. (50).
68. Dt lrRibus 1:1.J .9, 44. Su ..rl'7. 1!1'ni1-.t hc•n• !hilt n.1tur.1l lilw pt•rt11irw'"I l o irr,1tion11l
creatures.
f,Q Pr/1·~il•11,J:2 'l 17 . 7 1. 1'l14. :n
RIG HTS, COMMUNITY, AND SOVEREIG NTY 305
raised a further problem that had arisen in medieval theology and that has
attracted a good deal of attention among modem scholars, mainly because
it recurs at a key point in the work of Grotius. One school of thought-
Suarez traced it back to Gregory of Rimini-held that one could sin simply
by acting against the natural law known through right reason and that,
accordingly, even if there were no God, to act against reason would still
be sinful. The other school of thought-founded by Ockham according to
Suarez-held that natural law consisted solely of divine commands, so
that no act was wicked unless forbidden by God.111 Suarez chose a middle
course. The natural law discerned by reason, he held, both indicated what
was intrinsically good or evil and also commanded the one and forbad<'
the other. But, in discerning natural law, reason also discerned the will of
God for humankind. Since God chose to create humans as creatures en-
dowed with reason, we can know that he intended them to act in accord
with the dictates of their rational nature.
Whence it may be further stated that this very judgment of the right
reason that is instilled by nature in man is itself a sufficient sign of the
divine will . .. .71
Since the precepts of natural law related to what was intrinsically
good and intrinsically evil, Suarez held that they could not be changed
even by God himself. But still he found room in his system of thought for
what Ockham had called natural law by supposition. For Suarez, natural
law existed necessarily supposing that God had chosen to create rational
creatures.n Also some natural laws came into play only as a consequence
of certain human acts, and ceased to take effect when the relevant condi-
tions no longer existed. Thus natural law required that promises be kept
and debts repaid, but the promisee or creditor could release the other party
from hjs obligation; in doing so he was not acting against natural law but
creating a factual situation where the law no longer applied. Similarly the
precept of natural law that forbade theft came into play only on the suppo-
sition that private property had been instituted by human initiative.73
So far we have considered only the precepts of natural law. They all
tt•nded to the same end, Suarez wrote, and this was "the due preservation
.md natural perfection or happiness of human nature."74 We now turn to
the other, complementary, side of his doctrine, ius naturale understood in a
subjective sense as specifying the natural rights that were also necessary
to pn:>scrve and perfect human lif<>.
711. ll:>id., 2 .6 .) 4 , 7Q 114.
71. lhid., 2 .6 .24, 1117
n. Jhid .. 2.t. v. wt.
7J lll'll','(il>11• ot ·1 14 II , 711,"/ l'I 11. 1111
'/ 4 lldl','(ih11• I '}'/'/ , JIM
 306 TKE IDEA OF NATURAL RIGHTS
Suarez approached this theme by considering an old problem of
the canonists concerning the rights to liberty and property. According
to natural law all men were free and all property was held in common;
but human law had introduced servitude and private ownership. It
seemed, then, that natural law was not immutable.75 Suarez cited here the
key texts of the Decretum, Quo iure and Dilectissimis, around which eddies
of controversy had swirled ever since the twelfth century; and his expla-
nation of them relied on an argument that had originally been presented
by the early Decretists. Natural law could take the form of a command,
and such law was indeed immutable, Suarez held, but natural law could
also be merely "permissive or negative or concessive. "76 Liberty and com-
mon property pertained to this permissive natural law; these things were
not actually commanded and they could be changed by human action.
By nature man was born free, but no law of nature commanded that he
retain his freedom. Liberty was a right but ~ot an inalienable right.
\ Up to this point the argument was traditional. But Suarez then consid-
ered an objection that led him to some further refinements of thought
about permissive natural law as a locus of natural rights. The objection ran
like this. H, under the rule of natural law, liberty and property were merely
permitted, not commanded, then it would seem that any person could
licitly enslave another or snatch away his property without injustice, for
the aggressor would not be violating any actual precept of natural law.77
In response to this, Suarez referred back to his earlier definitions of ius
as meaning either Jaw or a right to own or claim something. He would
now apply the same distinction to the term ius naturale, he wrote. His point
was that a natural right 'which he now referred to as a ius dominativum)
could arise from the kind of natural law that he had earlier described as
"permissive or negative or concessive." Earlier Suarez had noted that per-
mission understood as mere indifference did not pertain to law.78 Now he
argued that there could be a permissive law that was not merely neutral. A
negative or permissive natural law could imply the existence of a positive
natural right.
If we speak of dominative natural right, then it is true that liberty per-
tains to natural right positively and not only negatively ... because
uature made man free positively (so to speak) with an intrinsic right of
liberty. Similarly nature conferred a common dominion of everything
and so gave to each one a right of using.79
75. Dt kgibus 4:2.14.2, 17.
76. Ibid., 2.14.6, 22.
77. Ibid., 2.14.15, 32.
78. !Hl~ibus3:2. 12 . 1 , 178.
79. lH /,gibu~ 4:2.1.(. If>, .14,
~ Al vrro 1<l li"I"''""" •It• lurr 11nt11rnll tlu111lrtr1tl110, ,.j,- 11t•rum
est lilwrtatt>m C'Nk' th• i11w llllhmlll 1"'"111111· ,., """ h11\llllll 1t••11nllvc· ''"'" llollur.1 r...·11
RtGlfTS, COMMUNITY, AND SOVEREIGNTY
Although community of property pertained only to the negative (or per-
missive) Jaw of nature, a positive precept of natural law required that no
- I
one be excluded from the necessary use of the common possessions. And
i' once private property was established it was protected by the natural law
forbidding theft.80 Suarez added here the usual proviso that a person who
used the goods of another when in a state of extreme need was not a thief.
Elsewhere he explained that the original division of things could not have
been just and reasonable unless it was understood at the time that super-
fluities were common in case of necessity.8 1
Suarez' discussion of the relationship between permissive natural law
and natural rights is an important part of his rights theory. He returned to
the topic a little further on when he was considering some aspects of th('
ius gentium. Here he wrote that concessive law could not be separated en-
tirely from preceptive law. For example, if a privilege were conceded to a
person, it followed that others were commanded not to impede him in its
use. The same argument applied to concessive natural law. Since natu-
ral Jaw permitted anyone to occupy vacant land and build on it, no on('
could justly disturb the first occupant. It would be inconsistent to say that
a person had a free right (liber facultns) and at the same time that he could
be impeded in the use of the right. The obligation not to violate a natural
right was a requirement of natural law.82
In other contexts Suarez explored further the rights that existed in "tht•
natural state of mankind" before private property was instituted,&'.! and
that persisted even if the right to property were renounced. This latter
issue arose when Suarez discussed the thorny old problem of Franciscan
poverty. The question involved was whether the friars could renounct•
all rights in property and retain only a simple factual use of things as tht•
Franciscans claimed to do. Pope John XX.II insisted that any licit use must
imply a right of using. Suarez cited the relevant papal decretals but dis-
agreed with them. He held that, when a person used something solely by
license of another he had no right regarding it. Properly speaking, Suan•z
homines positive (ut sic dicam) liberos cum inlrinseco iure libertalis ... simililer conlulil <'<1111
muniler dominium rerum omni um el consequenter uniruique dedit poteslatem ulrndi."
80. Ibid., 2.14.17, 35: " Unde quamvis natura non praeceperit ul res sempcr CS.<;(.'nt t•om
munes, quo sensu dicitur communitas rerum de iure naturae (~ative). lamen duranlr illu
''"'u posilivum praeceptum iuris naturae eral ul nemo prohiberelur nee impt'dirt•tur ah uMu
111-.·t"S...ario communium rerum .. . l""'"l"•1 m facta •'SI et applicala 5unl dominia. ius nalumr
pmhilwt furtum scu indl'hilam a1·n•plinnrm rc·i .11i1•na1•."
Kl . lhid., 2.16. 11, ~l; ·rrndr1l11• ,i,. 1fo11rl1r/1•, ( '1•rnr 12: 7 ..1.4, " . .. jur<' anlc•m K1·nti11111 •Uni
chvis.1, qua.• d ivis io non poh••I ""-"' ''"'"· c·I 1.1th111l .-011"'""'· ni~i hat' l<"gf' fac·ta in1t•lliKt1hir, ul
'I"•"' pmprii~ tl1>mini" fm•nml •11pr11111,., 11111• 1•llk1nnl11t nmmn1nc•."
K2 Jhicl , 2 .1114, 117 Ill, J Ill ·1. Ill, ·· """' "11111111 hrlta snnl iun• n.11tmw. Et"'"'''"'
nu>cln uhli11,1ll111111h111 "'' 111111 vh1l•n•l1tm '""' "'" nlh•1h1•. t1Al11rnlb1 lrKI~ "'' ··
KI <;111m·i 11.,..,1thr11l11 t1.... •f,.lmn ""1t11111l1•111 l111111t1111n1" nl 'J IH I, I l'l
308 THE IDEA OF NATURAL RIGHTS
wrote, a right was something that a man had as his own, that he could ex-
ercise in his own name, that could not be taken away from him without
injustice.94 But this left Suarez with a problem similar to one we have just
discussed. U a friar had no right in the things he used it would seem that
anyone could deprive him of them without injustice. Suarez replied that
the friar always had a natural right to defend himself and that this ex-
tended to the things he held. The right involved was not a property right;
it was rather the natural dominion that a person had over his own actions
including the actual use of things. (Here again the Thomist argument
about self-mastery that Vitoria had used recurs in a later rights theory.)
Suarez added that the friar's right could also be derived from "the natural
right that anyone has to nourish, protect, and preserve his own body." 85•
In considering the original condition of humankind, the state of in-
nocence, Suarez noted that certain rights were inherent in human na-
ture from the beginning. Although God gave the world to mankind in
common, individual rights necessarily arose in the actual use of things.
Anyone who plucked a fruit from a tree in order to eat it would acquire
a particular right in the fruit that could not be taken away without in-
justice.86 The situation was not so clear with regard to rights in land; but
Suarez thought that a person who cultivated a particular patch of ground
could not justly be deprived of the use of it. Natural reason demanded this.
So it could be introduced by usage that anyone who occupied a piece of
land should possess it as his own so long as he did not leave it.87 This was
still something short of outright ownership. According to Suarez this was
finally introduced through human will and consent in the ius gentium; 88
but he seems to have envisaged the ius gentium as ratifying or legitimiz-
ing a state of affairs that had gradually grown into existence from the
beginning of the human race.
In discussing the origin of property, Suarez insisted that the domin-
ion of man over external nature was not a supernatural gift, especially
bestowed by God on Adam after his creation; rather it was something in-
trinsic to human nature from the beginning.99 If now we tum to another
topic, the origin of the state, we find a similar principle asserted.
84. ~ statu perfection is, Opoa 15:8.5.29, 571 .
85. [bid., 8.5.38, 575, " ... unusquisque habet naturale jus ad defendendum et se, et
quidquid apud se possidet ... hoc autem jus non necessario est dominium acquisitum ... sed
est naturale dominium in proprias actiones, ad quas pertinet et usus facti . . . Potest etiam hoc
jus revocari ad illud jus naturale, quod homo habet ad nutriendum, protegendum, et conser-
vandum proprium corpus."
86. ~ upett ~x dierum, Opoa 3:5.7.13, 418.
87. Ibid.
88. Drlrgi&us 4:2.17.ll, Ulfl.
89. De Opt'rt', Opt<ra :l::l. lt>.Q, 2HO, " I lo•· •'CK" ju .i h.1h11il t'llot111 ho11111 '"' vi su;i1• .-r••a ·
ti1mi~... " I 11r
RIGHTS, COMMUNITY, AND SoVEREIGNTY 309
Suarez' argument began in a conventional Aristotelian fashion. Man
was by nature a social animal. His social instinct was partly satisfied
by life in a family. But a single family could not contain all the offices
and skills or all the knowledge needed for a fully satisfying human life.
Moreover the separate families would often be at strife with another. The
remedy for this situation was the establishment of a political or "perfect"
society.90 The problem was to explain how political authority could come
to be instituted among men who were by nature free and equal, with no
jurisdiction over one another.
The subtext of much early modem writing on the origin of the state
was the doctrine of medieval corporation law asserting that a group of
scattered individuals had no inherent jurisdiction but that such a power
did inhere in the same persons united into a corporate body. Jurisdiction
could then be exercised by the corporation as a whole or by the officers it
appointed.91 At first the jurisdiction was supposed to be derived from a
grant by the sovereign, pope or emperor; but medieval law became more
and more permissive until, in mid-thirteenth century, Innocent rv wrott•
that, when three or more individuals joined together, corporate status
followed automatically provided that the aim was "to preserve for each
his justice." And, as Antony Black observed, "/ustitia in this context may
just as well be translated as 'rights'."92 In effect the pope was endorsing
what we should nowadays call a right of association. Later medieval
jurists sometimes wrote that the right to form corporations was derived
from "the law itself."93
Suarez argued in just the same way (with a reference to Roman and
canon corporation law) when he discussed the formation of political com-
munities'1>4; but, since at first no positive law existed, he based his argument
on natural law. A multitude of men could exist as a mere disordered aggre-
gate with no inherent jurisdiction; but the same persons might be gathered
together by a special act of will or common consent into a unified politi-
cal body pursuing a common end.95 It would be impossible to conceive
of such a body existing without government; so political power inherftl
90. De fegi&us 5:3.1.3, 8 - 10.
91. The locus of jurisdiction in a corporate body was the subject of a dispute between thr
hrl'at canonists Innocent IV and Hostiensis. lnnocent wrote, "Rectors appointed by rorpor41·
t inn.~ have jurisdiction, not the corporations themselves.ff Hostiensis replied, "Wh"t l11rt0<"f'nl
n'j<'Cts is more true, altho ugh more diffiCtJlt. # Set> B. Tierney, Foundations ofthf' Conri/Uir '111n•t l(
(( '.1mbridge, 1955), 107.
'12. A. Black, Guild.~ and <'i111/ .o;,1c·1f'ly (lth,1rn, NY, 19114), 17.
•D. Ibid., 2ll.
9-4 IH ll'1(i&11~ l: l.ti. l'l, 12 1, dllnit /Ill("'' 111 7'/ •Ul•I />n·rrtalts5~11.1 4.
•15. I >r lt'Jeil111~ !'i::l.2.4, 24 'J'I, " 1' 1111 '"1'" "'"''" l'nn11lclrr1mda ~!II homlnum mult!tuclu ,
• 111111t•n11~ ~1"14'<·1.•ll voh111lc1h• ,,..,. 1111111110111 1 """"""" 111 111111m <'<•rpuM polltk um •·onKr"K'"'
 310 THE IDEA OF NATURAL RIGHTS
in the community necessarily, "by the very nature of the thing."96 But
the jurisdiction of the community included powers-among them the
power of capital punishment-that did not belong to the individuals
who composed it. So Suarez still had to explain how this jurisdiction
arose in the first place. He considered the theory of divine right-that God
had bestowed ruling power directly on some supreme prince and his
descendants-but Suarez dismissed this as lacking any basis in reason or
authority.97 Another possibility was that Adam had been endowed with
sovereign power at the beginning of the human race. But Suarez rejected
this view too. Adam's power was domestic not political, he wrote. As
Adam's progeny multiplied, separate families arose, each with its own
head. Political power began to exist only when they joined together in
a community; and the community was formed not by the will of Adam
alone but by the wills of all those who assembled together.98
The most common view, Suarez noted, with a reference to Vitoria
among others, was that political power was given to the community im-
mediately by God. In a sense this was true, he acknowledged; but the im-
portant question was how God conferred this power.99 This question takes
us to the heart of Suarez' argument. He insisted that the ability to institute
communities endowed with political power was innate in humans from
their first creation. It was a characteristic resulting from (human) nature.
It was not conferred by any special act or grant of God subsequent to
the creation. If political power had been so conferred we could know of it
only through revelation, not through natural reason, but this was not the
case. A dictate of reason shows us that such power is necessary for human
welfare; reason also shows that, accordingly, God instilJed this power in
human nature.100
Political power did not manifest itself in humans when men lived
as scattered individuals, but only when they joined together in a perfect
community. Such a community could be established only through human
96. Ibid., ·rn tali ergo rommunitate, ut sic, est haec potestas ex natura rei ..."
97. Ibid., 3.2..2, 21.
98. Ibid., 3.2.3, 23. "Verumtamen ex vi solius creationis et originis naturalis sol um colligi
potest habuisse Adamum potest:\tem oeconomicam, non politkam .. .."For another reforence
to Adam, denying his political authority, see Dt Opl'l't, ~ra 3:5.7.14, 416.
99. ~ legibus 5:3.2..2, 29; 3.2.4, Jl.
JOO. Ibid ., 3 .2.5, 31, #Deus non dat hanc potestatem per specialem actionem vel conces-
sionem a creatione distinctam. Alias de tali concessione deberet per revelatiollCTO constare,
quod falsum esse constat. . .. Ergo datur ut proprietas ronsequens naturam, nimirum medio
dictamine rationis naturalis ostendentis Deum suHicientt'r providis..<;<' humano generi et ron-
sequenter illi dedisse potestatem ad suam con~rvationt'm f't C"OOVE'llienh.>m gub<-rnatiorwm
necessariam." This may bf' compa~ w ith an argum('llt 11dvann'tl l>y <kkham (in um· of hi~
moods). Rf'a.~n. rdlN-linK nn h11m1m n11hm'. nu1hl .tlN<·"m ( ;,,.j',. lnh•ntlun lc•r hunMnklml .
Stt 11hov«>, 174 7~.
RIGHTS, COMMUNITY, AND SoVEREIGNTY 311
will; but once instituted it possessed jurisdiction over the members "by the
force of natural reason" or "by the force of natural law alone." 101 This was
another kind of suppositional natural law, a law that came into play only
as a result of some preceding human act. By arguing in this way Suarez
was able to construct a theory of the state based on the characteristics of
human nature without appealing to any divine act or intervention after
the first creation of Adam. A central feature of Suarez' thought on rights
and political theory was his insistence that ruling power was brought into
being, not by patriarchy or divine right or the supposed superiority of
some person or class, but by the will and consent of free right-bearing in-
dividuals who entered into a compact with one another to form a political
society. 102
So far Suarez had argued that ruling power resided naturally in the
whole political community; pure democracy was the natural form of gov-
ernment for humankind.103 But Suarez also thought that "infinite con-
fusion and trouble" could arise if power remained diffused in this way.u>t
Normally it was necessary to confer ruling authority on some particular
ruler or rulers. But a difficulty arose at this point. If natural law conferred
power on the community, how could the community relinquish it? The
answer was the same as the one Suarez had given when he considered
community of property. The natural law involved was merely concessive
or permissive.1115 No precept of natural law prohibited the community from
yielding its power to a ruler, and natural reason suggested that such a
transfer was necessary and expedient. 106
The "democratic" side of Suarez' thought persisted in his teaching that
legitimate political power was necessarily derived from the consent of the
community. 107 His doctrine of sovereignty was expressed in two proposi-
tions, both of which had a long medieval ancestry, and both of which had
been accepted by Vitoria. First, a ruler once instituted held a power greater
than that of the whole community subject to him, not merely greater than
that of the separate individuals who composed it. And, second, the trans-
fer of power to a ruler was not a mere delegation to a representative but a
I OJ. Ibid., 3. l.11, 16, " ... naturale ius per se non effecerit subiectionem politicam sine in-
tt•rventu humanae voluntatis, ut videbimus"; 3.3 .6, 32, " . .. ex vi rationis naturalis ~tin t•o";
1.2.4, 24 " . .. potestatem hanc ex vi solius iuris naturae esse in hominum communitate."
102. Suarez emphasized this point by contrasting secular jurisdiction with thf' powrr of
tlw pop<' that really was conff'rred by a d irt'Ct div int' grant. See~ legil1us, 3.3.11, 33.
l fl1. Defensio, Opm1 15:3.2.<J, 209.
1114. De lex1bus, 3.4.1, :lll
105. Otfrnsio, :l.2.9, 211'1. '"Ot11><·lrn1 I'"',..'"" hA1'<· .. J ici poles! de jure natunlli nt~11tlv..,
non po~i tivc, v1•I potiu11clc•111"" n.iluro1h 1 u111"""""'· 1101111implic-itrr priu"Ciplt'lll«>."
tot.. I H lry(il•u• <;;J .4. 1. 1H; 11 K, .\4
107 lhld , :l 4 2, 40, '' rlf't ....... 11•1 ttl •• • ""...,""" 1 nm1111mlt11llP11111 trlh1111hir " llr/rn~i11,
I J 12. 1111," 111111 rrl(O h11m..,lh1l11 o1 I i..u ..,,, o1 l'"I'"'" '"K''" h"l1<•11t pul<'11I01trm H
 312 THE IDEA OF NATURAL RIGHTS
kind of alienation or "perfect grant." Once the people had granted away
their power they could not reclaim it at will. 108 It followed too that the ruler
could legislate or tax for just cause without requiring the explicit consent
of his subjects. 109
Suarez was not arguing here for monarchical absolutism. He observed
that, although monarchy was in principle the best form of rule, never-
theless, given " the frailty, ignorance and wickedness of mankind," it was
usually advisable to add some "common" element to the government. 110
The form of government depended on the choice of the community.
Suarez' point was that, whatever the form adopted, once a government
was instituted it possessed a sovereign power (supremo potestas). This was
true whether the government was a monarchy or an aristocracy or a
mixture of the two, like the doge of Venice with his senate or a king
with the nobles of his nation.111 In the case of a king, the ruler acquired a
kind of ownership of the power conferred on him and could not be de-
prived of it unless he lapsed into tyranny.112
Before we tum to the extreme case of tyranny, we need to consider
the status and rights of individuals in a political community under more
normal conditions. When discussing the origin of the state Suarez de-
ployed some traditional organic imagery.
Just as man .. . has power over himself and over his faculties and mem-
bers for their use ... so too the political body of mankind . .. has power
and rule over itself and consequently has power and a particular domin-
ion over its own members.113
In keeping with this holistic imagery, Suarez acknowledged the primacy of
the common good. Laws should be made for the good of the whole body.114
It was indeed human sociability, the need of humans to live in communi-
ties that made laws necessary in the first place.U5 Accordingly, the common
good should prevail if it conflicted with the good of a particular individ-
ual.116 But Suarez also held that the good of private individuals was itself a
HIS. ~ Itgibus 5:3.4.6, 43; 3.4.11, 49.
109. lbid., 6:3.19,4-9, 40-46; 5.17.3 in Optra 5:492.
110. Ddtgibus 5:3.4.1, 38.
111. lbid., 3.19. 6-7, 42-44. It could be, Suarez noted, that leg.i slative power inhered in the
Icing w ith an assembly of estates; but then they together possessed supreme power; consent of
the subjects was not needed for each act of legislation. On the various legitimate forms of gov-
ernment including mixed forms, see Defmsio, 3.2.4, 2f!l; 3.27, 208; 3 .2 .18, 212.
112. Ddtgibus 5:3.4.6, 44.
113. Ibid., 3.3.6, 32.
114. Ibid ., 1:1.7.1, 128, " ... omnium commune a xioma est de ratione et !lub~tantia lf'gi!I
esse ut pro communi bono feratur."
115. Ibid .• 1.3.19, 57, *Nam in h oc fundatur quod hnmot'!'t anlm11l 110Ci<llc> nl\tura sua I""'·
tulans vitam civilem . . . quod rx lf'Kll11111unlrn1<1ul1111111•1~11nm11nlt11th1 m11xlmr f'l'nil••t."
116. Ibid., 1.7.J 4, 142.
RIGHTS, COMMUNITY, AND SOVEREIGNTY 313
part of the common good. In one way the common ~ood related to p~b.tic
property like temples and common pastures; but, in another way, 1t in-
cluded the good of private citizens. Precisely because each person was a
part of the community the good of each one redounded to the advantage
of the whole.117 When laws were enacted that served the advantage of in-
dividual persons in a community it was "so that the common good may
arise from the goods of individuals." 118 This seems to echo the medieval
way of thinking that we encountered in Gerson, where the common good
and individual goods were seen as typically existing in harmony with one
another rather than in a state of conflict.
Suarez' views on the rights of citizens within a political community
have to be gathered from various scattered contexts. He mentioned casu-
ally a natural right to preserve one's good name, a right to marry, and a
natural right to liberty, including "a maiden's right to her own freedom"
before she was married.119 As regards the rights to liberty and property, the
state acquired a "higher right" in that a person could be deprived of liberty
for crime and taxes could be imposed for the common good. 120 But these
rights did not simply cease to exist in a civil community. Liberty was a
natural right, and a right to property was protected by natural law once
it had been instituted. A person could not be deprived of such rights with-
out just cause. In considering liberty, "a great perfection" of man, Suarez
distinguished carefully between citizenship and servitude. The power of
a magistrate was not the dominion of a master over a slave but a juris-
diction established for the good of all.121 As regards property, it would be
most absurd, Suarez wrote, to imagine that a king could arbitrarily take
away his subjects' goods; to d o so would be to violate a right granted by
nature.122
It followed from such considerations that an individual citizen was
not obliged to obey unjust laws or, perhaps, any laws that were unduly
harsh and burdensome, or laws that de facto were rejected by a majority
11 7. Ibid., }.7.7, 136.
118. Ibid., 1 .7.3, 131. Discussing divine law here Suarez wrote that eternal happint>ss wa.~
,, common goal. But he e xplained that it was common only in the sense that it was sought t>y
o·vl'ry ind ividual " through h imself and for h imself."
l
119. De sraru perftclionis, Optra 15: l .l.13-14, 6; 8 .4.3, 557; Dt legibus 4: 2.18.2, 117.
120. On the state's " higher right" regarding p roperty and liberty see Dt ltJ(ibus 1:1.7.7, 11'>;
1 2.14.18, 36.
!21. Dr opere: Optra J :S.7.9 - IO, 4 IS l h. s.....,i_..,/>..tr,~ibus 5:3.1.7. 13- 14, " Non t~t At1h•111
1.1ll' Jominium hoc. ut t'i n'llfllln•h•nl pro11rin Mrvilw• •IC"<po tica, ~ s ub it'din civili,.. f.rK" r~I
.lomimum iurisdi<"tioni!I. .. ·· Soml'llllll'• S11.-w1 o·•unp.irt•d thl' citit.l'n~· sulimi,,~inn to tlw
~I.th• with"" indivitlual'!l 1111hmi""lo11 In vnhmtou V .,.., vi1ml1•, l'·K·· i\t Ix lr,~ibu!O 5:1.45, 41. Out
'"' ,.,,111,, im't.l lh,.t thi" WA• only'"' iml"'' '"' t """''•KV loy 11oloti11~ thr won I,., "114•rv.,1., p mpor
tln 1,..," ··,ot.,..•rvin)t .lur prup111tlu11 ··
1n 1>drx1l•11• 4 7 14 l'I. 11
 315
RIGHTS, COMMUNITY, AND SOVEREIGNTY
11 ·1 THE IDEA OF NATIJRAL RIGHTS

- condemned monarch.131 Suarez added

of the peopl1•.1 " Suarez did not refer here specifically to the rights of in- for any private personlto lk1!ct:Oderstatement, that the king of England
dividuals hut r.llher to the lack of a duty to obey. In the modem legal lan- here with a perhaps ca cu a
' hi ments il2
guage of I lohfeld he was discussing "immunities." Similar arguments would not ta~e kindly to s argu d red. or extensive list of natural or civil
applied lo unjust taxation. An individual was not obliged to pay an un- Suarez ~id not present any o~e lete modem theory of rights and the
just tax and, if there were a doubt about whether a ruler had the right to rights. He _d id n~t construct a c;;,u Ph his definition of a right as a moral
impose a tax, the subjects retained possession of "their goods and their state. But m vanous ~ays-th tsgth t litkal societies were formed by
liberty." 12• faculty, and throug~ hi~ ~rgumen aaia ri ht to liberty and an inalien-
In considering the relationship between rulers and subjects, the right the volition of free individuals, and th g · tituted-the
i . ted after a government was ms
that Suarez insisted on most explicitly and emphatically was the right able right of self-de ense perstsbl' h th substructure on which later theo-
of self-defense. For Suarez this was " the greatest of rights," a natural in- Spanish master helped to _esta IS e
alienable right that inhered in individuals and communities, a right that ries of rights would be built.
could be exercised by subjects against a tyrannical ruler. Suarez distin-
guished conventionally between two kinds of tyrants-a usurper who
seized power without any just title, and a legitimate ruler who abused his
power.125 In the first case, any private person could justly kill the tyrant
since he was an aggressor making war on the commonwealth and all its
members.126 Although a private individual could not licitly punish a male-
factor on his own authority, he could kill in self-defense or in defense of
the state. The individual acted then with the tacit authorization of the state
and of God, who gave to everyone the p ower to defend himself and any
innocent person.127 If a king with a legitimate title made actual war on his
subjects the same rule applied. However, when a legitimate king ruled un-
justly but without continued and actual violence against his people, no
private individual could attack him. An individual could licitly kill such a
king only in defense of his own life. 128 In this case the remedy lay with the
community as a whole; after public deliberation of the nobles and citizens
the people could licitly judge and depose a tyrannical ruler. The com-
munity had this power both from its inherent right of self-defense and
because the original compact that instituted a king always assumed that he
would rule "politically not tyrannically" and would otherwise be subject
to deposition.129 Suarez held that the pope too could depose an erring king.
He acknowledged that the pope should use his power only for spiritual
ends. But, according to Suarez, this meant that the pope could depose a
king "directly" for a spiritual crime like heresy, and "indirectly" by con-
demning other sins of the king and approving his subsequent deposition
by the community.130 The sentence of deposition co uld include a mandate

123. Ibid., 6:3.19.11- 13, 47- 49.

124. De ltgrous, 5.17.18, 12-14 in Optra 5:496- 97.
125. Defensio, 6.4.1, Opera 24:675; Dt cluirilalt , 13.8.2, Optra 12:759 .
126. Deft nsio, 6.4.7, 677.
127. Ibid., 6.4.13, 679. On sclf-defmiw ns "th<• ~n·alt-:it right" ,.,... 11.4.~. t.7h.
128. Ibid ., 6.45 , 676.
129. I,,,,.,,,
Ibid., 6.4.15, 611(); lJ<' d1arilalf, 12 LI II :•. 7r;" UI lhhl . h 14 Ill. ""'
IJO. lhid .• :n :l2, '.H !i; 11 4 It•, hllO \ \) lhhl · '' 14 14. ti'/'J

THIRTEEN
GROTIUS. FROM MEDIEVAL TO MODERN
T he idea of natural rights grew up among Catholic jurists and theo-
logians during the medieval era. The further development of the
doctrine in the early modem world was almost entirely the work of Protes-
tant political theorists. Between the two worlds, linking them together,
stood the figure of the great Dutch scholar, Hugo Grotius.'
The Mexican author, Edmundo O'Gorman, once wrote that "sixteenth
century Spain is the bridge over which European culture passed from
the medieval to the modem phase."2 One is tempted to extend the meta-
phor and write that the work of Grotius formed a last, indispensable arch
of the bridge. But this would not be quite the whole truth. Grotius did
often quote the Spanish scholastics, partly no doubt for tactical reasons.3
Often indeed, in considering his work, one seems to be reading Suarez
transposed into a different idiom. But Grotius was a learned jurist and
theologian in his own right; he could reach back behind the Spanish writ-
ers to make use of the earlier medieval tradition on which his work,
and theirs, depended. Grotius was also a brilliant humanist, a youthful
prodigy as a boy, and later the author of poetry and histories, as well as
works on jurisprudence and theology. His own variety of humanist Latin,
J. There is an excellent bibliography in P. Haggenmacher, Gro1i11s ti lo doelrinl' di' la x111·rrl'
ju.sit (Paris, 1983). For later wOf'ks Stt the listing.~ in th<' journal Groliana (New ScriE':<).
2. E. O'Corman, #1.ewiii Hankl' on thl' Sp"n!sh Stmule for Justin• in the Conqu1•st of
America," Hi.~J"'lnic l\mtric1111 I li~htr.irul ffrl'/1'1112•1 ( 1'14'1)· «;61 i;71 111 SM..
3. Ill' wanl«'d lo 11t•r1m1ul1• Sp"ln to 1111·1·<'pl llw I >1111 h .ui-:u1111•nt for frt'<'tlom of n•mmt•rt'r
on thl' high ,...,,l<.
I,,,
GROTIUS. FROM MEDIEVAL TO MODERN 317
a rather florid baroque version, overladen with classical allusions and quo-
tations, may seem tedious to a modem reader, but it commended his work
greatly to his contemporaries.
Grotius made his purpose dear in the Prolegomena to his masterwork,
De j11re belli et pacis (On tire lAw of War and Peace).
Throughout the Christian world I observed a lack of restraint in relation
lo war, such as even barbarous races should be ashamed of ... ii is as if,
in accordance with a general decree, frenzy had openly been let loose for
the committing of all crimes!
In the face of this situation Grotius insisted that there could be "a common
law among nations," and this he proposed to expound. Modem inten>st
in Grotius has centered around two themes-his contribution to the for-
mation of international law and his supposed role as the founder of a new,
modem doctrine of natural law and natural rights. It is the latter aspect
of his work that will concern us. In particular I want to explore some out-
standing questions concerning the relationship between Grotius's teach-
ings on natural rights and those of his medieval predecessors.
THE QUESTION OF MODERNITY
In the opening pages of the De jure be/Ii Grotius introduced the view
.!
of the ancient skeptic Carneades who maintained that there could bt•
L
no universal standard of natural justice because, by nature, all creahm'fl,
I
including humans, simply sought their own advantage. Against th b1,
Grotius argued that man was a higher kind of animal, marked by a .sod11I
instinct that impelled humans to live with their own kind in a pe11cl'f11I,
ordered society.5 For Grotius, as for Suarez, this human sociability w1u1
J.,._ · lhc original source of law.6 Grotius also noted that humans were cnpnhlc• of
::. judging what was beneficial for humankind in the long run and •UK11t'tl
:~ that to go against such a judgment would be to violate the law or 1mt11n<,
namely of human nature. (For Grotius human nature was " thl• m11lh1•1
of natural Jaw.")7 This law of nature required us primarily to r<>Sfll'l'I tht'
rights of others-to leave to others, or render to them, what was their own
Such language has suggested to some readers that, for Grotius, tlw !'il11h'
4. J. 8 . Scott, ed., Hugonis Grotii, Dr jurt ~Iii ti pacrs Wm Ires (Oxford, 1913) (Repn><lm·lln11
111 tht• Ed ition of 1646}, Proltgomnia, 6 . (1 have added page references for the Prul'R''"'' ""
which is unpaginated in the original.}
~- Ibid .. 2, " Inter haK autem quae homini s unt propria est appetitus societalis, id M<t com
munit .. t i~. non qualiscunque, ~ tranc111ill;w «'I pro s u i intellectus modo ordin:ital'. .. . "
t. lhid., 2.• " Hat'(" vem ... 1111< l<'IAlh1 f UNh>tll", humano intellectu convcni<'m1, forn1 <'111 ••Im
0
1uri~ . ' I" " pt•rtint•I alit'fli •.t>11tlm•11tl". rt •I 1111l1l .,ll1•nl h.ll>t•amu~ .. . l"t'lltilutlo .
7 lhi1I , :l, " .. t•I ljllt'IJ l"ll l111lh 1111·l~11r "'l"' ltll"t. rll.,_111 •·ontra ju~ natur11c-, h11m11n11I' 114·11
111•1. ''"M,o l11h•llito1il11r"; 4," "'"11 rn1h1111ll• l11t1• "'"'" ' rNI lpM hum""" 1Ml11r11 ..
318 THE IDEA OF NATURAL RIGHTS
existed only to preserve individual natural rights. Grotius next.presented
the most famous lines of his treatise: "What we have been saymg would
have a degree of validity even if we should concede that which cannot be
conceded without the utmost wickedness, that there is no God .. . ." (Eti-
amsi daremus, quod . . . non esse Deum).8
The place of such ideas in the development of later theories of natural
law and natural rights has ~n debated ever since the seventeenth cen-
tury. Some writers see Grotius as a kind of Grundungsheros, a "founding
hero" of modem rights theories;9 others treat him as merely a transmitter
of late scholastic thought. The attitude of Grotius himself to his medieval
predecessors was a little condescending but not hostile. They lived in an
unhappy age, ignorant of the liberal arts, he wrote, but when they agreed
on a point of morals they were seldom mistaken.10 The idea that Gro-
tius, uninfluenced by any vestiges of previous scholarship, made a com-
plete break with the past seems to have been invented by Pufendorf later
in the seventeenth century.11 But at about the same time writers like Felden
and Huber were calling attention to medieval elements in Grotius's work.
In the early eighteenth century Jean Barbeyrac praised "the illusti:ious
Grotius" as the one who first "broke the ice" after the long dark medieval
winter and dissipated "those thick Clouds of Darkness in which the World
had been so long envelop'd "; 12 but a little later on J. J. Schmaus insisted
that the teaching of Grotius on natural law was nothing but a return to
the old doctrine of the scholastics. 13 During the 1930s a brisk little dis-
8 . Ibid., 3, "Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus,
quod sine summo scelere dari nequit, non esse Deum, aut non curari ~b eo negotia ~umana.
#
9. The term Grundungsheros is from F. Wieacker, Privalrtehtsgtschrchtt dt r Ntuurl, 2nd ed.
(Gottingen. 1967), 299. Wieaclcer provided a carefully bala~ account.~f the old .and the new
in Grotius in his HContractus und Obligatio in Naturrec:ht zw1schen Spatscholast1k und Aufk-
lirung." in P. Grossi, ed., I.A second11 scholllslic11 (Milan, 1973), 223-39.
10. Dt jurt btlli, Proltgomma, 11.
tt. S. Pufendorf, Specimtn controvtrsiarum circa jus naluralt ipsi nupa notnrrim (Uppsala,
1678), 10. For a vigorous criticism of Pufendorf, emphasizing Grotius's ~ependence_ on the
earlier scholastic tradition, and especially o n Suarez, see A.-H . Chroust, H ugo Grotius and
the Scholastic Natura] Law Tradition," Tht New Scholaslidsm, 17(1943): 101-133. It is not clear
why Grotius quoted Suarez so seldom in the De jurt btlli when he certainly knew and admired
the work of the Spanish scho lar. J. B. Scott suggested that it was for politic reasons. Suarez'
Deftnsio catho/icat jidei was condemned by the French parltmtnt because of ii~ defense of~­
rannicide· Grotius was living as an exile in France and h is book was dedicated to Louis
xm. For further discussion see R. Feenstra, HQuelques re marques, sur les sources utilisees
par Grotius dans ses travau.x de droit naturel," in T11e World of Hugo Grotius (1583-1645), ed.,
R. Feenstra et al., 65-81 at 78-80. Feenstra suggested that Grotius could o ften have come to
the same conclusions as Suarez without a din-ct 1fc•p1•ndc•nn.•.
12. J. Barbeo) ta.., "f.\ n ll:..h •t i t • .. I f ', i•t..1l 1\ 14 cu111I ul llu· -.;, i. ,, • •• Pf f\t.1r.1l1tv;· 1t1
S. rufendorf, Of lltr /AW o1{Naturr 1111J M1//111n, 111111•1 II KrnrlC'tl ( l m 1don, 1729), :l!>, 7<1•.
13. On the• r11rly nllh.. ul l :111lht• ..... M Vllh•y, " I ,.,. urtKlnt'll ,,,. l.1 n utlun 1lr tlrrnl ~uh·
~'t"tif, " in hi""'· I ,f'\1111• 1l'l1/ot11/1' rl1 111 1•l1ll1ro1•1•l1I~ r/11 1/11111 ( l',,rl~. I•1'l7 ). 24'1 HI .11 24'1 '1f1;
GROTIUS. FROM MEDIEVAL TO M ODERN
319
pute broke out, centering around the work of James Brown Scott, as
~o whe~er Grotius or Vitoria should properly be called the father of
mtemattonal law.14 Writing in the 1970s Charles Edwards challenged
the "double paternity" of Grotius as the father of both international
law and of ~odem natural law. One of his critics noted that, "here open
doors are being stormed." But, also in the 1970s, M. B. Crowe described
~roti~~~s De jure be/Ii.as "epoc~ making ... a watershed in the history of
tdeas. The most weighty and important book since then on Grotius, that
of Peter ':f~ggenm~cher, treats the Dutch author as primarily a continuator
of a tradition of discourse about the just war that goes back to Gratian's
~ecretum a~~ its early commentators, the starting point of our own inquiry
mto the ongms of .natural rights theories. But, still more recently, Rich-
ard Tuck has seen m the work of Grotius "a manifesto for a new scienn•
of morality." 16
Although it is still quite commonly argued that Grotius inaugurated a
n~~ era. of "modern natural law," there is little agreement about what was
d1sh~chvely modem in his work. Sometimes it is suggested that Grotius
substituted a new theory of natural rights for the old idea of natural law, or
made natural law merely derivative from natural rights.17 But this is not
reallr true. In the _work of Grotius, as in that of his scholastic predecessors,
we fmd natural rights and natural law existing side by side both associ-
ated with traits of hum~n nature that were taken to be impla~ted by God.
The mos! common earlier argument for Grotius's modernity maintaim•d
that he pioneered a new kind of "secular" and "rationalJst" approach thnt
freed the concept of natural law from the religious context in which it had
been e?",?e~ded. ~ut we now understand that the famous "impious hy
pothes1s { Ev~n 1~ there were no God....")was a rather common toprn1
~
i . of late scholastic discourse and that Grotius could have picked it up fnim
- ---·------
R. Feenstra, "Quelques remarques," 65 n. I; R. Tuck, Natural Rights Theories (Canih ri•IK•',
1979), 75.
14. This was discussed by J. Muldoon, " The Contribution of the Medieval Canon I .awyi·r"
to the Formation o r International Law,HTraditio, 28 (19n): 483-97.
~5. C. S. ~d~ards, Hugo Grotius. The Miracle of Holland fChicago, 1981), 9 - 25. 1311 -~•.
ag;.11i:' emphas1z mg the similarities between Grotius and Suarez; C. Gellinek, " Book Rcvi•·w...
l.rotra11n, n.s. 3 (1982). 77; M. B. Crowe, The Chang ing Profilr of thr Natural Law (The f filgtw,
1977), 223.
. 16. ':faggenmacher. Gutrrr jusle (abov(' n. I); R. Tuck, "Grotius and Selden, Hin Thr <:am
/ortdl(t Hr.story of Pol1tical Thnu11h1. 14.<;(} 1 71~. <'d. J. 11. Bums (Camb ridge, 1991), 499- 5:N al .';20
17: K. Haakon.~sen, " From N<tlur.d I-1w In lht• RiKhl~ of Man: A European PcnJ><'c1ivr on
Am1'nc;m 1)\-b;ite'S:" .in 11. ( ·11//11rr •'/ H.1.~ht.. n l M I I A1·1•y .111.t I<. Haakon.'i.~n (Camhridl(c',
l.'1<11 ). I~ ·5 1 ,11..25, l·m . ( .roth .. lhr • 11111·"1' ' ut 11111111,,11,,w I~ tint,• tfrrivativ<' fro m right~ . .. -
s..... al"<1 1<lt•m, I lul(n <•h•tl11• •ml llu• I l l• ln1y nf l'n llll• ,,, I h1111Khl," l'olilicnl Thr11ry IJ ( l'IH'\)·
'! l'I 1.r;. I f,1,1l<nn'l!'l'll h11• WI 111"" ""ll•ltlvc•lv 1111 t .1 ..11110 l•ul lw I• mun· lnt1•rt•'>ft•d in lll<' I lutd i
.,. h11t.u ·.. 1111lw·n11• "" l11h11r w1lh•1 0 lh1t111111 llu• 011111> 1•01111t1~ lht1llKhl
320 THE [OF.A OF NATURAL RIGHTS
Suarez or from any one of half a dozen sixteenth-century authors.18 More-
over, Grotius qualified his hypothesis at once by adding that there was
indeed a God and that God's free will was "another source of law besides
the source in nature." 19 In the subsequent pages of his work there were
more references to the Bible than to any other source. One can hardly
call this a "secularist" approach. As for Grotius's "rationalism," he did
indeed maintain that human reason, reflecting on human nature, could
educe valid rules of moral conduct including a duty to respect the rights of
others; but this was in keeping with a longstanding tradition of scholastic
thought. Later writers were able to use Grotius as a source for natural
rights theories more secular in spirit than his own because the idea of
natural rights that he transmitted always had been rooted in human rea-
son, with divine revelation employed as a complementary (and, as it later
proved, detachable) source of argument.
Another interpretation of Grotius's thought as distinctively modem
emphasizes his reliance on the fashionable neo-Stoicism of such authors as
Justus Lipsius. But Stoicism always had been present in medieval thought,
not least in juristic thought. If we can ascribe any particular philosophy to
the medieval jurists it was a sort of second-hand Stoicism derived for the
most part from the texts of Roman law and, among the canonists, from
some passages of the Church Fathers transmitted by Gratian. Grotius was
erudite enough to quote the classical sources at first-hand; but the Stoicism
he deployed had received a medieval impress from the jurists who had
grafted on to Stoic thought their own doctrine of subjective rights.
The most interesting argument for Grotius's essential modernity has
been presented by Richard Tuck. In a series of studies he has argued that
Grotius developed the concepts of natural law and natural rights in a new
way in order to combat the moral relativism and skepticism of contempo-
raries like Charron and Montaigne. Tuck sees this attack on skepticism as
the central animating principle of Grotius's work and one of major signifi-
cance for the future evolution of rights theories. From this perspective, the
m~~emity of Grotius consisted precisely in his "transcendence of skepti-
cism." According to Tuck's argument, Grotius used his "enormous knowl-
edge of world history" to create a new theory of "minimalist" natural
18. The m ost detajJed account of earlier formulations of the impious h ypothesis is J. St.
Leger, Tht • Etiamsi damn us· of Hugo Grotius. A St11dy in th~ Origins oflnterniitional I.Aw (Rome,
1962). For an overall view of the various opinions regarding Grotius' s proximate source see
L Besselink. "The Impious Hypothesis Revisitt>d,- Groliana, n.s . q ( 1988): 3- 6.1.
19. De jurt btlli, Proltgomena. J, • Et ha<'<' jam .ilia juriH ori~O l'HI rr•wh•r illam naturalem,
veniens scilicet ex lib<-ra Dt'i volunl.l llt' ... ~ Gmtl1111 ndtl•'tl t h11t tht• n,i lural law d('ri vf'd fmm
the trails of human nalul't' ,.1,... .-nm1• fmm I :011 Minn• <;.,,\ wlll1.'tl In implnnl lho:-1• trail,.
in man.
GROTIUS. FROM MEDIEVAL TO MODERN 321
law, derived from empirical evidence and based on the principle of self-
interest-a principle that the skeptics themselves accepted.20 I can perhaps
best bring out some salient features of Grotius's teaching by first consider-
ing the various phases of this approach to his work.
Tuck's argument is important and sophisticated. It deserves seri-
ous consideration. But it also presents many difficulties. Above all, there is
very little evidence of any considerable preoccupation with seventeenth-
century skepticism running through Grotius's writings. The Dutch scholar
did indeed cite Cameades at the beginning of the De jure bel/i, just as Vi-
toria had cited the ancient skeptics Epicurus and Lucretius at the begin-
ning of his De potestate civile. But, like Vitoria, Grotius brushed aside the
skeptical objection in a few paragraphs; then he went on for hundreds of
pages of refined argumentation without ever adverting to the topic again.
A little earlier, in 1622, he wrote a treatise, On True Religion, in which he
undertook to refute the archenemies of the Christian faith. This would
seem an obvious place for Grotius to have launched an attack on skep-
ticism if that had been one of his principal concerns. But the enemies he
thought worth refuting were the pagan, Jewish, and Muslim religions; he
did not mention ancient or modem skeptics.21 His other theological writ-
ings are likewise devoid of any serious engagement with seventeenth-
century skepticism.
Grotius never addressed the epistemological skepticism that so con-
cerned his contemporary, Descartes. And he did not really respond to
the anthropological relativism of Charron and Montaigne by deploying il
new body of "empirical evidence about social practices." 22 By the 1620s a
significant amount of information was available concerning societies from
China to Peru. Writers like Acosta had begun to weave together this mate-
rial in works on comparative ethnography. But Grotius made no attempt
to collect such anthropological evidence in support of his view that certain
values were common to all societies. He relied only on sources drawn from
the tradition of his own culture, Christian and classical, and he assumed
that what he found there had a universal validity. It never occurred to the
Dutch author that his whole conceptual apparatus of natural law and
natu ral rights would have been unintelligible to a learned Chinese scholar;
a harsh critic might say that he challenged cultural relativism only by as·
20. R. Tuck, "C.mt ius, CarrwndC'S and I loh..-..," Grolian11, n .s . 4 (1983): 43-62. For q11nt11
lions in tilt' text 5('t' .'>4. T11<'k 1lf'vf'lt>l""I hi-" 11rg11nwnt furl~r in "Th~ 'Mod~rn· Tlwory 1•1
Natural Law," in A l'.11(11•·11. •••I . 1111' I lfll,1(1111,~t"I 1•{ l'olitirol Tllfory in [arly·M odtrn Eu"'1"' (Cnm-
hridg<'. J<1'R7), <l'I 11'1; //ooll/,,.. (l h.lnnl. 1'111'11. 70 :i!.1, '\I 'i2; "( ;mtiu-" and St>l1k>n" (.1l>t>w n . lh);
1'/1111>!'-0/>h.lf lln<I C~''"""'"'"'' · /!'1 I llo!ol (l 11111lu hlK•'. 1'1111), >.Iv xvi, 1~201 .
21. Tht• work W4• 1•11l•ll•l1P1l l11 I hill h In lr•JI. 1111'11 l11 l..lll11 In 1fo2S.
27 "Thi• 'M111l1•m· 1111" 11 y .. 11 /
 322 THE IDEA OF NATURAL RIGtn'S
serting a kind of cultural imperialism.23 Whether the hard-won insights or
Western culture may eventuaJJy prove to have a relevance for all peoples
remains an open question; but Grotius was not aware that any such ques-
tion existed.
Tuck's central argument suggested that Grotius reinterpreted the uni-
versal impulse to self-preservation-which even the skeptics recognized-
as a moral principle that could serve as the basis for a new doctrine of
natural rights and natural law.24 Grotius did argue in this way; but there
was nothing novel in his approach. In medieval thought self-preservation
always had been seen in moral terms as a duty enjoined by divine law that
implied a corresponding right of self-defense and a right to acquire the ne-
cessities of life. Grotius argued in just the same way. In his precocious early
work, De jure praedae, written in 1605, Grotius first asserted that what God
willed was law. Then he wrote that God willed the existence of his creation
and so gave to each individual the natural properties necessary for self-
preservation. From these principles he deduced two laws: " It is licit to
defend one's own life.. . ."and "It is licit to acquire and retain the things
useful for life."25 It would be hard to find any medieval jurist or philoso-
pher who disagreed with such assertions.
In arguing for self-interest as the basis of natural law in Grotius,
Tuck quoted a striking phrase from the De jure praedae: "(T)he first prin-
ciple of the natural order . . . is the love whose primary force and action are
toward oneself.'126 This does seem like an assertion of unqualified egocen-
trism, an anticipation of the extreme individualism that was to character-
ize some later natural rights theories; but the text needs to be considered in
its historical context and in the context of Grotius's own writing. Grotius
attributed his doctrine to "the old poets and philosophers"; but it was also
a characteristic teaching of medieval theology and canon Jaw. Peter Lom-
bard's Sentences, the standard textbook of medieval theology, presented an
"order of charity" derived from St. Augustine, which required us to love
first God, then ourselves, then our neighbors. Accordingly Aquinas wrote,
"Out of charity a man ought to love himself more than his neighbor," and
Suarez held that "according to the order of charity it is better to succor one-
23. See W. Fikentscher, ModtS of Thought in Law and Politics (Berkeley. 1988), 27-31; A 8 .
Bozeman, NOn the Relevance of Hugo Grotius and De Jure Belli el Pacis for Our Times,· Gm-
1i1ma, n.s. 1 (1980), 53- 64.
24. E.g., Hobbes. 21 . " ... Grotiu s had in a sense converted the skeptical humanists' Ian·
guage of self-preservation into a languagt' of natural riJehts-that i~ into a gt'nuint>ly moral
language . . . Tile same themt" nm.1 lhrough <1ll 11f Tuck' :- writingR on Grotiu~.
H
25. H . G. Hamakl'r. Ni .• ll11Koni.< C: rotii dt' j 11rr l'rnl'dllt' r m11mmlar i11s (lllf- tlagut>. IAAR).
7, 10.
26. 1>r 111u /'rtrf'1faf . <J, d lr1l l11 ..( Mn'"'" h·,.:· •,;•. ·· 111.. ' Mm h ·r11' ·n.,.. •ry." 111 ; "( ;rollu' .11111
Sl'ld1•n," ';IJt>; l'/111•"'"'''"' ""'' c;,.,.,.,,,,,,,.,,,. rn
GROTIUS. FROM MFI>IEVAL TO M ODERN 323
self than others." Similarly, in Gratian's Decretum we are told that "one
who would give alms in good order must first give to himself." 27 Vitoria
and Suarez and Grotius in tum all pointed out that the command to love
our neighbor as ourselves implied that we should first love ourselves.211
The underlying point of the theologians was that every person was
primarily responsible for his own moral welfare. They then went on to dis-
cuss the duty also to love one's neighbor and the situations that could arise
when the duties to self and to another conflicted. (We saw Vitoria explor-
ing such questions in the De homicidio.29 ) Grotius presented the same kind
of argument. After discussing the "true and divinely-inspired self-love,"
he added that God also intended each individual to have regard for his
fellow-beings so that all could live in mutual harmony. And so, Grotius
concluded, "Love is twofold, love of self and love of others." 30 His doctrine
of natural law and natural rights was built around these two principles-
self-love and sociability-not only or primarily on the first one. When Gro-
tius wanted specifically to refute the skeptic Cameades in the De jure belli,
it was the principle of sociability, that he appealed to.
I will tum to a more detailed consideration of Grotius's teaching on
natural law below, but regarding the argument that he framed a "mini-
mal" doctrine in order to refute contemporary skeptics there are two
preliminary points to be made. In the first place Grotius's understanding
of natural law was not necessarily minimalist. He defined the term, like his
scholastic predecessors, as "a dictate of right reason"; but this is an open-
ended definition; it could lead on to the enumeration of many particular
rules of right behavior. 31 And, secondly, medieval teaching always had
been minimalist as regards the primary principles of natural law. Gratian
thought it necessary to mention only two such principles at the beginning
of the Decretum. Aquinas discussed four " inclinations" that gave rise to the
basic precepts of natural law; 32 he then argued that from these few funda-
27. Peter Lombard, Stntenline. 3.28.1; Aquinas, Summa t~logiae. 2.2ae16.4; Suarez; ~
charitate. 3 .7; Dtcrttum, Dt pen. Dist. 3 c.19.
28. De jure btlli. 1.3.3. 47.
29. Above, 299. Grotius also held that it was somt>times laudable to waive the right of self·
defense. But he did not agree with Vitoria that the v ictim of an attack should accept death
rather than send his assailant to eternal damnation by killing him. The victim also might nt'<'d
timt' to repent of his sins. Grotius observed (1.3.3 ., 47).
30. De jurepratdnt, 11.
31. For an oldt>r vi<•w. diwctly contrary tn Tuck' s. St't' H. A. Rommen, The Nat urn/ IJtrr• A
Study m f.toKal nnd Sl1<i11/ / fi~tor.v n111l l'hi/o~'l'l111 (St I .oui". 11147). 73. Rom men saw (;mtin~ ,,~"
l~al rationalii>I who ~I'"" uul h111111111•111hlr ''"''"''"' "'' '"'"' lilw fmm a few l>ai>ic' prindplt"IO.
tie contrastt'd thi~ with 111<1w 11tc,.l1•1tl • lnlm" 111 llu-1111.. Hrv11l '4<·hnla.~tic-s tTganlinK thr conlt'nt
of natural l;iw
J2. Tlwy W•'f•• tu I 'll'Of't v• '"" '""" '" llv1• In ""' h-tv. '" 1r•t o f111prlng, nml In know< ;11<1
(S un111111 llm•lo)(ltlr. I /"' ' 114}) I ,1111111• ltth111l1111111 llu• lh•I lw11 In llw T'r..tr.~m11r1111 top,. Jurr
l•f/11 ~111! llM• olh1•1 lw11 ~I I I It 'I
324 THE IDEA OF NATURAL RIGHTS
mental principles one could deduce other more detailed rules.33 Grotius
again argued in the same way. In the course of the De jure belli he repeat-
edly appealed to natural law in order to justify detailed rules of conduct
that he wanted to establish. He even argued that natural law related not
only to strict justice, but also to the practice of the traditional moral
virtues.34
So far I have been arguing that Grotius was not stimulated by the
moral relativism of contemporary skeptics to create some new theory of
natural law and natural rights. Insofar as he took note of the skeptics at
all, he simply maintained that the old theory could be successfully re-
asserted in the face of their criticisms. And yet it remains true that Grotius
did display a vigorous creative imagination in his handling of the tradition
he inherited, and he did indeed play a major role in the transition from
medieval to modem thinking about natural rights. In spite of all my criti-
cisms, I think that Tuck's argument points to an underlying truth about
Grotius. The Dutch scholar was addressing the problems of a new century,
in a new style, speaking to a new audience made up mainly of Protes-
tants and humanists. For a proper evaluation of his work we need to
understand not only how he reappropriated particular elements of the
medieval tradition but also how he adapted them to the needs of his
own age. Let us therefore turn from modem disputes about Grotius to
an analysis of some of his own texts about rights and consider in tum
his arguments concerning the meaning of ius naturale, the origin of a right
to property, and the relationship between individual and community in a
political society.
NATURAL LAW AND NATURAL RIGHTS
An obvious place to begin is provided by Grotius's own starting
points in the De jure praedae and the De jure belli-an exploration of the
different meanings of the key term ius, "right." As Haggenmacher noted,
in the earlier work Grotius used the word ius in both its subjective and
objective senses, as meaning a right or a law, but without distinguishing
33. Summa lheologille, 1.2ae.961. Aquinas observed here that the common principles of
natural law would be applied differently among different peoples "on account o f the great
variety of human affairs. N
34. De jure ~Iii. 2.1.9, 104. As part of h is argument about minimalism Tuck pointed out
that Grotius did not regard even all of the Ten Commandments AS precepts of natural law.
("Cameades,N 56-57, #Grotius and Selden," 513.) Tuck sees this as radically mnovatory.
But again there are medieval precedent11. Oum• S.·ulm• tn•al.-d tlw whole · S('Cond table" o f
the Decalogue as posilivP dlvlnl' lnw. l'ur .-rllkl"m of hi~ ,1rx11m<"nl !!<'<' Suan•7., l>r l~ilms,
4: 2 .15.9, 5.1.
GROTIUS. FROM MEDIEVAL TO MODERN 325
formally between the two meanings. Jn the lnleidinge, a major work on
Roman-Dutch jurisprudence, Grotius defined recht in a broad sense as
what was consonant with reason and, in a strict sense, as a relationship~­
tween a person and what belonged to him.35 But his mature treatment of
this theme came only in the De jure belli.
It would be wrong to suggest that Grotius deliberately concealed the
medieval origins of his central teachings. There are many medieval refer-
ences strewn among the more common classical ones in his works. {In the
De jure be/Ii for instance there were thirty-one references to Bartolus, thirty
to Baldus, and forty to Aquinas.) But occasionally, perhaps just because of
a fondness for displaying his classical erudition, Grotius did write in a way
that could mislead a reader about the real sources of his thought. And this
is especially true of his discussion on the meaning of ius in the De jure be/Ii.
Grotius began with the standard Aristotelian-Thomist definition. Re-
'i
.l ferring to the title of his own work he wrote, "lus here signifies nothing
1,• other than what is just."36 Then he quickly moved on to a second meaning,
which, he wrote, was different from the first one but derived from it. This
is Grotius's formal definition of ius as a subjective right:
In this sense ius is a moral quality of a person, enabling him to have or do
something justly.37
This definition was of central importance for Grotius's future argument
since a major theme of the De jure be/Ii was the assertion that just wars
were fought to defend or assert rights or to punish violations of them. (A
long list of the things that belong to us by a " right common to mankind"
was presented in a later chapter.38) Developing further his definition
Grotius wrote that the "moral quality" could designate a "faculty" or an
"aptitude." A faculty, what the jurists called the suum (one's own), meant a
right strictly so-called; an aptitude designated a claim by reason of merit
that could not be legally enforced.19 Grotius was mainly interested in ius
as facultas. This " right in a strict sense" included power (potestas), either
power over oneself, meaning liberty, or over others. It could also includt'
ownership (dominium), either absolute or less absolute as in the case of
35. lnleidi11ge lot de Hollandsche Rechls·Gtftt,.dheid, ed. F. Dovring et al. (Leiden, 19S2),
l. l.6- 7, I.
36. De jrm bdl1, 1.1.3, 2.
37. Ibid., I. I .4, 2, " Ab hac juri" significatiunt> di versa ~t altcra, sed ab hac ipsa veni<"ns . .
Qualitas morali." pcr<;on;w, c·omp•·h.,,,. .111 .1llc111i<I jusl<> hahendum vel agt>ndum."
38. lbid., 2.2.1-24. 112 171
:W. Only lh<' h•r111hu1luKY wo nrw '"""' I li..-1• rrrnimlc'tl uf I luguccio's wmark c<>nturh"'
C'arlier, " Mi\ny lhh1K• 111<• 11w"' I lh11I c lllllH•I '"' .. ,u~ht hy lmlklotl pmcC'\Juw... ." (St't' .1hovt•,
74). C.rnliuM wrn t ••ff"'' 11111111(""' """' 111 1111111 ~ 1\1 l•lnllr'~ .1..tt11Ul11n of ntlrihullvr ju~lkt• ""
h.1!1<•111111.,_,.,,1tll'lrlr<1l1ath"1 th1111111 llh•m•lh "' l' '"I'"' """
326 THE I DEA Of NATURAL RIG HTS
usufruct; and this right could also refer to the claim of a creditor, to which
the obligation of another corresponded.40
Finally Grotius gave a third definition of ius. Jn this sense the word
meant the same as law (lex), understood as "a rule of moral action obliging
us to what is right." 41 He added that a permission had the quality of law
only insofar as it obliged others not to hinder the one to whom permission
was granted.
The tripartite understanding of ius as "What is just," as a subjective
right, and as law is precisely what we find in Suarez. So is the use of the
words moralis and facultas to designate a right. So too is the inclusion in
this faculty of both ownership and a claim to things owed (Suarez' ius in re
and ius ad rem). The reference to permissive law also echoes an observation
of Suarez. Other sixteenth-century Spanish authors and various medieval
jurists before them had likewise given &ists of the meanings of ius that
included the subjective sense, that is, ius as meaning a right inhering in
persons. There is no such list of meanings in any classical source. Yet,
in presenting his argument here, Grotius succeeded in quoting Aristotle,
Philo, Cicero, Seneca, Florentinus, Augustine, and a scholiast on Horace.
He did not mention any of the medieval or sixteenth-century sources
in which similar accounts of the meanings of ius had been given; but in
fact his conceptual apparatus of law and rights, the ideas that would un-
dergird the whole subsequent work, was of medieval origin. One must
suppose that Grotius was a good enough humanist to have been aware of
this. Certainly some of his early critics saw the point dearly. The Dutch
jurist Huber complained that Grotius's use of ills to mean a right of owner-
ship was not properly classical but a ''barbarism" introduced by the me-
d ieval canon and civil lawyers (canonistae et accursianae).41 This is indeed
true (if we forg.i ve the word "barbarism"), but it would be impossible to
d iscern the fact from Grotius's text and notes. Grotius was presenting a
medieval and late scholastic structure of argument here; his originality lay
in using the scholastic language to introduce a systematic treatise on inter-
national jurisprudence.
40. Ibid., l.15, 2, " Facuhatem lurisconsulti nomine Sui appellant: nos post hac jus proprie
aut stricte d ictum appellabimus: sub quo continentur Potestas, tum in se, quae lil>ertas dici~ur
tum in alios, ut patria, do m in ica: Dominium, plenum sive minus pleno, ut ususfructus, JUS
pigno ris: et creditum, cui ex adverso respondet debitum." . 44. Ibid., 1.1.11, 5.
41 . Ibid., 1.1.9, 3, uEstet tertia ju.rissignifkatioquae idem valetquod Lex . .. ut sK Regula
actuum moralium obligans ad id quod rectum est."
42. Huber's comment was q uoted by Villey, "Origines," 253. Villey saw in Grotius's defi-
nition " the birth of an individualistic type of juridical thought." 1 cannot u nde r:\tand why
Tully saw the definitio n as " f'lid ing tlw con<"t"J>t o f a rixht to <•m"s Jut•." C:mtius was much
concerned with right!! arislnK Imm n>11lrndunl 1>11liK11linn". St't' I Tully, I\ l>i.. .·ours.-of f'n'Jlf'rl_I(
(Camt>ridKt', IQllO). 711.
GROTIUS. FROM M EDIEVAL TO MODERN 327
.I When Grotius turned to a consideration of natural law he observed
-~ I that this law could be known either a priori, from a consideration of man's
rational and social nature, or a posteriori from the principles common to all
nations or at least the more advanced ones.43 He denied here that brute
animals could be subjects of natural law-for him, as for Vitoria and
Suarez, natural law was a law of reason that pertained only to rational
creatures.4' Grotius's argument also involved another problem that had
arisen in late medieval scholasticism and that we discussed in the work of
Suarez-whether the law of nature derived its binding force simply from
its conformity with right reason or rather from the will of God. It has
·1 sometimes been argued that Grotius shifted from a voluntarist position
; I in the De jure praedae to a rationalist one in the De jure belli; but really the
difference seems to have been only one of emphasis. In the early work, as
we saw, he wrote, "What God has shown to be his will is law." This seems
starkly voluntaristic; but Grotius buttressed his assertion by citing a text of
Aquinas that referred to God's supreme reason and wisdom.45 And a little
further on he referred to the "sovereign reason" granted to man by God,
"who imprinted on man the image of his own mind." 46 In the De jure belli
Grotius made his famous comment that reason would be able to discern
natural law "even if we were to grant that there is no God. . . ."; but he also
acknowledged that God's will was truly a source of law. When he came to
give a formal definition of ius naturale Grotius, like Suarez, combined both
11
. elements of thought, rationalist and voluntarist.
I
•.
I
Natural law is a dictate of right reason indicating that an act, on account
of its conformity or lack of conformity with rational nature, has in it a
quality of moral turpitude or moral necessity, and that consequently such
an act is either commanded or prohibited by God, the author of nature.47
?
f The definition could have been inspired directly by Suarez; but it is also in
harmony with much earlier medieval tradition going back to Gratian's De-
.I cretum and its early commentators, a tradition that saw natural law both as
a dictate of reason and as expressive of the divine will for humankind.
: Alfred Dufour has rightly observed that Grotius presented a very re-
t fined doctrine of natural law; 48 but the refinements are of a kind that will
I I
.!
43. De 111rr be/ti, 1.1.12, 5.
r' 45. ~ 1ure prlk'tfne, 8. citing S11m111n //tmloxinr l .2ftt'.Q.1 . l .
..:: , ;
46. Ibid., 12.
47. Dt ;11re lvtti. I I Ill. 1, ··111. 11i1111ml1• •••I clkt,1111111 R'<'ll'll' rntionis indicam1, aclui alk ui, t' ~
1•jus convmit-nlin ""I 111•• unvr11l••11l h1 111111 Ip•• n11t11r" rftllonall, inf'!l..w mt>rnll'm turpl·
tudinem i'IUI IW<"<'lll•ll"h'lll 111111 •lr111. "' 01111••1111•111..1 •I• " " ' ·Ion• nnlurAt' l>t'l• lalt•m adum 11111
v 1•l,\n i'llll rr.11'dpl ..
4H A. I l11fu11r. f l11•ll• 1f~ /"111111111., 1/11•11JhllUl~/11 t.1ol1 11r~ ( l'1u I~. 11111 f ). h:l.
328 THE IDEA OF NATURAL RIG HTS
easily be recognized by anyone familiar with earlier traditions of writ-
ing on this theme. Grotius held, for instance, that the precepts of the Jaw
of nature were unchangeable, even by God, but he also held that some
natural laws came into play only as a result of human acts. This is the
"relative" or "suppositious" natural law that we first encountered in the
canonist Alanus and then in Ockham and Suarez. The examples Grotius
gave were similar to those of his predecessors. Private property was first
established by human volition, but, once instituted, it was protected by
the natural law forbidding theft. A debtor was obliged by natural law to
pay what he owed to his creditor, but if the creditor voluntarily remitted
the debt, the obligation no longer existed. As Ockham had explained, in
such cases natural law applied "unless the contrary is enacted with the
consent of those concerned." 49
Grotius also made extensive use of the medieval concept of permis-
sive natural law as a locus of rights. The first two basic laws that we en-
countered in the De jure praedae were permissive ones-they declared that
it was licit, or permitted, to defend one·s own life and to acquire the ne-
cessities of life. ln the De jure be/Ii Grotius wrote that, even before the in-
troduction of private property, each person's life, limbs and liberty were
his own, and each one had a right to use and consume whatever nature
required; and, he added, if a person's rights were attacked natural law
permitted him to resist force with force. 50 Grotius's most interesting dis-
cussion of permissive natural law came in the De imperio, written in 1616.
Here Grotius wrote, " By nature it is our right to do all things that are
not evil in themselves."51 But Grotius was not primarily concerned in this
context with the natural rights of individuals; he wanted particularly to
make the point that permissive natural law could be changed by human
legislation and to apply the argument in a new way to a contemporary dis-
pute in the Dutch church.
There were two kinds of natural law, Grotius explained. The first de-
fined immutable rules of conduct; for instance, to honor God, to love our
parents, not to harm the innocent. These laws could not be changed by any
human act. But there was a second kind of natural law that was merely
permissive; it concerned such things as community of property and per-
sonal liberty. This kind of natural Jaw could be changed and had been
changed by the human laws introducing private property and servitude.52
49. o~ ju re ~Iii, l.1.10, 4-5.
SO. lbid., 1.2.1, 16-17. Grotius referred to permissive ni\tural law at 2.3.5, 127, and to act~
permitted Nby the force of narural liberty" at 2.2.21, 121. ~al~ 1.1.17, 'I, 2.25. 115 and lnlri-
dingt, 1.2.6, 4. In the background of tilt~ ar11Ktmwnt11 was thl' olcl l<'lll o f r>i,~NI q.2.45. " Vim
enim vi defenden- om~ k-x•"' nnt11l1u11u• lurA 1wrmlttunt "
51. IJr inr/lf"ri11 '"'""'""""'1~•lr~t11/11111.1,..,, ""' "' (l'r"nl.lurt. lhllO). 7 7.. IQ
52. 11>1.1
GROTIUS. FROM M EDIEVAL TO M ODERN 329
So far the argument was entirely traditional. We have traced the con-
cept of a permissive natural law relating to property and liberty from the
twelfth-century Decretists to Vitoria and Suarez. But Grotius now applied
the old doctrine in a new way. He went on to assert that the convoking
of church councils pertained to natural law (since man was by nature a
sociable creature); but, Grotius argued, only permissive natural law was
involved here. To understand his purpose we need to recall that, when
Grotius wrote the De imperio, the Dutch church was divided by a doctrinal
quarrel. One group wanted to summon a national church synod to impose
a rigorously defined doctrine of predestination on all the Dutch congrega-
tions. The other group, which Grotius supported, favored a less rigorous,
more tolerant approach. Grotius wanted, therefore, to prevent the sum-
moning of the proposed synod and to have the civil authority intervene in
order to uphold a degree of toleration in church affairs. Hence his argu-
ment that the convocation of synods was not a precept of natural law but
pertained only to the permissive law that was subject to the authority of
the human legislator." It is a striking example of how Grotius could use a
traditional medieval argument for a quite new purpose. It is also charac-
teristic of Grotius that he wanted the civil authority to intervene in church
affairs, not in order to suppress dissent, but rather to restrain religious
fanaticism.
THE RIGHT TO PROPERTY
If we tum now to Grotius's theory of property we again find a pattern
of medieval argumentation adapted to serve a new purpose. At the time
the Dutch scholar wrote there already existed a rich tradition of thought
about the origin of individual possessions, and Grotius seems to have
experimented with various elements of this tradition in several of his
works. ln the course of them he moved from a theory of property as exist-
ing naturally from the beginning of humankind to the more common
medieval position which held that the institution of private property was
permitted by natural law and suggested by natural reason, but that the
first actual division required human agreement and consent.
Grotius first addressed this issue in the De jure praedae where his prin-
cipal purpose was to argue that no nation could claim for itself ownership
of the open sea. (The Portugue>e were trying to exclude the Dutch from
the East Indies lradt•.) I h• first diS<·usst•d the a rgument that the pope was,
by divine right, 1<•111por.1l l11ril ur th1• wholl· world and so entitled to bestow
5J. 1'1i<I , 7 J . 11:0 11,••,., I• " • "' '"'" ' ' """ 111 1hr "''" 11111<· of the• arfAlr. Mnmln•, thr
S l,1<llh11lclc-r, dtllM' In •111'1"''' lllt' I l.1111•1 I'"' 11' 1lw <'11•1111111 oll•p11h•N 11'< 1In ll1r lmprll'<•lllll<'lll
nl ( :mllu• ""''hi• •111-11111•111 ••Ill'
 330 TuE IDEA OF NATURAL RIGHTS
portions of the globe on whomever he pleased. Here Grotius could quote
Spanish authors like Vitoria and Vazquez in support of his argument, but
he also remembered to mention the commentary of Innocent IV on the
Decretals and the canonist Huguccio, who had defended a dualist theory of
papacy and empire at the end of the twelfth century.~ Grotius's own first
theory of property was based, rather oddly it might seem, on another
group of canonistic texts, those relating to the Franciscan poverty dispute
of the fourteenth century.55 Grotius began with some definitions. In his
own day, he explained, the word domfr1ium referred to the exclusive own-
ership of something, and the word "common" to ownership by a defined
group. But, for lack of a more adequate vocabulary, the same terms were
applied analogically to a primordial condition of humankind when no pri-
vate property existed. In references to that era the word dominium meant
simply a faculty of using things common to all; and, according to the scho-
lastics, Grotius noted, this use was a "use of fact," not of law.56
To explain "use of fact" Grotius cited the decree Exiit of Nicholas
III, the starting point of the dispute about Franciscan poverty. In his usual
fashion Grotius decorated his text with allusions to classical mythology
and with quotations from Cicero and Seneca and Horace; but the key
terms of his argument were really drawn from the old quarrel between
John XXII and the Franciscans. In the first age of humanity, Grotius ex-
plained, there was no dominion of property in the modem sense. God
gave all things to the whole human race, not to this or that individual.
Whatever dominion did exist was vague and indefinite, and it referred to
use rather than ownership.57 So far Grotius seems to have presented the
primordial state of humanity just as the dissident Franciscans saw it. There
was use of fact but no private property. But for the next step in his ar-
gument he borrowed a central thesis of John XXII, citing the pope's decre-
tals Ad conditorem and Quia quorundam. As regards things consumed in
54. De ju" pratdae, 210. l doubt whether Grotius had actually read Huguccio. He probably
took the reference at second-hand from Vitoria who, like Grotius referred to Huguccio as
#Hugo.~ Vitoria gave the reference to Huguccio's text incorrectly as Dist. 69 of the Dtc"tum
(instead of Dist. 96), and the same mistake occurs in Grotius. In the Perei'ia-Peres Mendes edi-
tion of the De Indis Huguccio is incorrectly identified as Hugh of Sl Victor.
SS. It is not really surprising that Grotius was familiar with this material. The Franciscan
d ispute was discussed by several of the Spanish authors whose work he knew, e .g., ~Soto,
Molina and Suarez. The relevant texts of Nicholas III and John XXll were available to him
in various printed editions of the Corpus iuris C11nonic1. On Grotius's other sources see R. Feen-
stra, "Der Eigentumsbegriff bei Hugo Grotius im Licht einiger mittclaltlicher und spat-
scholastiker QueUen," in FestschriftJilr Franz Wirackrr, ed. 0 . Behrends Mal. (Gottingen, 1978),
209-34.
56. Dt jurt proedae, 214.
57. Ibid.• 21 s.
GROTIUS. FROM MEDIEVAL TO MODERN 331
use there could be no separation between use and ownership.58 Food and
drink, for instance, became part of the very substance of the user and so
necessarily belonged to him to the exclusion of anyone else.
. This was the basis of Grotius's first theory of property. He next wrote
that, by a logical process, ownership was extended to things that were par-
I
tially consumed. in use like clothing. Then, with a considerable leap of the
imagination, Grotius explained. that the same principle was seen to extend
necessarily to arable land and pastures since, although they were not actu-
ally consumed in use, their use was related to consumption, that is to the
.Yi_ production of consumable goods.S9 After property had come to exist in this
ii.
~
fashion a law was established., imitating nature, and decreeing that owner-
ship should be acquired by occupation. In the final stage of his argument
Grotius maintained that the open sea could not be occupied (and so could
not become anyone's property) both because of its vastness and because
it was intrinsically suited to the common use of all mankind.60 And so Gro-
tius reached his desired conclusion about the freedom of the seas. Here
again, he had taken a medieval structure of argument out of its original
context and applied it to a problem of his own age.
The argument of Grotius may remind us of a similar, well-known one
.•
of John Locke. "He that is nourished by the acorns he picked up ... has
certainly appropriated them to himself." The underlying assumption was
again that or john XXII; the actual consumption of something certainly
made one the owner of it. But Locke perceived that, in order to consume
licitly the acorns that had originally belonged to the common stock of
mankind, a person must first have had a right to them. Grotius simply as-
sumed that the initial act of consumption itself established an individual
right, upon which all subsequent rights of property were modeled. It was
not an altogether satisfactory argument, especially when applied to non-
consumables. Grotius failed to explain why others should respect the right
of one who carved out lands for himself from the common stock.
Grotius amplified. his argument in the Jnleidinge. He repeated here that
some things were consumed in use and called this a kind of ownership
"not contrary to natural law." Moreover, reason dictated that things be-
longing to no one (the res nullius of Roman law) should be owned by the
first occupant. Grotius also argued here that each one was required to re-
spect the property that others had acquired. by the natural law forbidding
a person to do to others what he did not want done to himself. Finally, tw
l'Xplained th<tl, aftt•r political !mcit•lit•s wt.•rt• established, civil laws rcgu-
SR. Ibid., 216, <·.,,,, 1•111111 '"" 11l11I ""'"'"""' "· 111111111111 11"11$ in ;il>u~u consislil . .. 111 dho c•t
pulu, proprirt11~ ~l"llm 1111111•il1'111Olh11•11111111 • r j11111 IA ••mi< 11il
~"- lhid
Ml. lhid . 11 11

332 THE IDEA O F NATURAL. RIGHTS
lated the various ways of acquiring ownership.61 These were essentially
the same arguments that lnnoo:?nt TV had presented in mid-thirteenth
century.
In the De jure belfi, Grotius finally came to accept the more common
medieval doctrine that community consent was needed to establish in-
dividual property rights in the first place. In this work he presented a
historical account of the development of private property, beginning
with an age of innocence and common ownership that he illustrated from
both the Book of Genesis and the classical myth of a golden age. After the
creation of the world, and then again after the Flood, God gave to the
human race a general right over alt inferior things. At first humans lived in
a primitive simplicity marked by "ignorance of vices rather than knowl-
edge of virtue." But this primitive harmony was disturbed by the acqui-
sition of knowledge (symbolized by the Tree of Knowledge) through
which man "degenerated into craftiness," and by rivalries and ambition.
Also people became dissatisfied with the spontaneous products of the
earth and chose a more refined way of life that necessitated the practice of
various industries; and from this there arose a lack of fairness in sharing
out the fruits of labor. For all these reasons the old common way of life
became impracticable and private property was instituted.
This came about not by an act of will alone . . . but rather by a kind of
agreement, either expressed, as by a division, or tacit as by occupation.61
The right of the first occupant was now based on the consent of the
community. We must suppose, Grotius wrote, that, once common property
had been abandoned and a division not yet made, all agreed that what
each one occupied should be his own. Grotius added a reservation, that
was common to all the theories of property we have considered, about
rights in a case of extreme necessity. Like Suarez he looked back to the
original agreement establishing private property. We are forced to believe,
he wrote, that those who originally introduced individual ownership in-
tended to depart as little as possible from natural equity. So in case of
extreme need the original right of use would revive just as though prop-
erty had remained common. A person who took the property of another to
preserve his own life was not guilty of theft. Here again, we are dealing
61. lnltidingt, 2.3.2, SO. Grotius added here that each one could keep what he acquired by
his own industry and labor.
62. Dt jure btlli, 2.2.2, 114, "Simul discimus quo modo res in proprietatem iv<'rint: n<>n
animi actu solo . . . sed pacto quodam aut exprt'!'llO ut per divi~ionem, aut ta<ito ut pt•r occu ·
pationem, simulatque enim cnmmunio d i11pliruil, Ill'<" in~tituta t'!lt ciiv iiiio, cl'f'l!l<'ri dC'b<'t inl<'r
omnes coo venis!'I<', ut •1ucid <t11i~1111• ,,....."l'"-·l iel prnpriu m h,1llt•n•t ·· Ttw rl'fe•r..nn• I<> t;,dt
con!lf'nt 11<-t•mii an ,,.·ho c1f Vll111 In
r
GROTIUS. FROM M EDIEVAL TO MODERN 333
with a doctrine that had a continuous history from the time of Huguccio
onward.
In discussing the origin of property, Grotius combined a historical
narrative with a theory of rational natural law. To him, as to some of his
medieval predecessors, the two approaches did not seem incompatible
with one another. Natural reason dictated different responses in different
historical circumstances.63 Grotius's account of an original agreement by
all of humankind evoked the ironical criticism of Filmer, and this in tum
stimulated Locke to produce his labor theory of property. Others contin-
ued to defend some version of Grotius's argument. Here again Grotius
stood between the old and the new. His theory of property appealed to En-
lightenment writers like Burlamaqui and even Hume/'4 but it would also
have been intelligjble to Ockham or Innocent IV or Huguccio.
..•
~
INDIVIDUALS, SOctETY, AND SOVEREIGNTY
I
In discussing the origin of the state Grotius again took up a late me-
dieval tradition of thought and developed it in his own way. Vitoria had
maintained that a commonwealth was formed by an association of indi-
viduals; but (at least in his early work) he held that civil power was
infused into the community by a direct grant of God. Suarez dispensed
with the need for any direct divine intervention, arguing that the power
to form political societies was inherent in human nature from the begin-
ning; but he still acknowledged that the political community possessed
I
powers-especially the power to punish-that had not belonged to the in-
dividuals who formed the association. Grotius took the argument a step
further. He maintained that a right to punish already existed in individuals
in the state of nature before any civil authority was instituted. Then
he argued that, just as a magistrate's right came from the community, so
too the community's right came from the individuals who joined together
to form it. Grotius, in effect, turned Vitoria's argument upside down. The
Spanish scholar maintained that, since the state had a power to inflict
punishment that did not inhere in individuals, the power must have been
conferred by God. Grotius maintained that, since the power of the com-
monwealth came from its individual members, and since no one could
confer a right he did not possess, the individuals must have possessed the
right to punish before the state was formed .
t.1. Cummt•nl intt 1111 I .1nll11•. s 1,.l'hr11 ll11dd1• w m h · uf "The h isto ric11l l"sk hullt Into
mod<'rn natur.,l l11w ., S.... S l111d.t... N11/111fll I' "'' c11ul llrr 111rory of Pm~rt.v. Grotius lo I lumr
(< hfor<I. 11)<11), '.''i 11 11(1
M . 1) J'orlw~. I l11rrrr • l '/11/,,.,,,,,,,, r1/ /'1•/f111 •I• 11111h1i. t11•·. 111'/'I), 77
334 THE lr>EA OF NAl\JRAL RIGHTS
Therefore, since no one can transfer something that he did not have, it
seems necessary that the right was held by private individuals before it
was held by the commonwealth .. . punishment has a natural origin, but
the state is formed by agreement.... Human society is from nature but
civil society from deliberate institution.c.s
This was a strong statement of the social contract theory that would
often recur in seventeenth-century doctrines of natural rights. It seems
highly individualistic. But Grotius's later comments on the formation of
political societies were more ambivalent. In the De jure belli he balanced the
individualism of his earlier doctrine by insisting also on the sociable nature
of man. His argument about the origin of the state in this book was very
similar to that presented by Vitoria before the Spaniard introduced the
theme of divine right into his work. Humans could not survive or live
a satisfying life as isolated individuals or scattered families; so the es-
tablishment of civil communities was, in a sense, motivated by "oblique
self-interest"; 66 but for Vitoria man was also, by nature, a social animal.
And Grotius too explained that the very nature of man, "the mother of the
law of nature," would lead us to form civil societies even if we lacked for
nothing.67
Grotius's discussions on the relationship between individuals and
community within a civil society were very nuanced. If we were to put all
his relevant comments together side by side they might seem often to con-
tradict one another; but to see them in this way would be to ignore the
tradition of thought within which Grotius was working. Medieval intellec-
tuals had been able to hold together, in coherent structures of thought,
ideas that later thinkers would sometimes treat as polar opposites. Thus
they found room in their works for rationalism and voluntarism, na.t ure
and history, love of self and love of neighbor. Above all they emphasized
bo;l1 individual rights and the common good as complementary rather
than conflicting aspects of the human condition. We can find this attitude
. I
65. Dt jure praedat, 91-92. See Haggerunacher, Guerre justt, 141- 48. Grotius answered the
argument of Vitoria and Suarez almost inadvertently. In the context of t~e passage quoted he
was not primarily concerned with the origin of the state. He was pursumg an argument that
private warfare might be licit in exceptional circumstances whe~ ~o jud~cial recou~ wa_s
available. Th.is led him to discuss the situation that existed before ovil magistrates were msll-
tuted. He mentioned the origin of civil power as something incidental to his main argument.
In his later work Grotius continued to assert that a right to punish existed in the state of
nature; but he did not apply the argument to the origin of civil pow<'r. It became of major po-
litical significance only when Locke prescnled a ~imilar doctrine as part o f hi.~ rcspon~ to
Filmer's patriarchal theory.
66. Q . Skinnt-r, 17tl' Fo11ndatio11~ 11{ Morfnn f'c•/ilirn/ T/1m11i:lrl. 2 vol~ . (C:amhridg1•, 197R),
2: 160.
t.7. I Ir ;11,,. l.,./lr. l'mlr.~m11rw1 . 4
GROTIUS. FROM MEDIEVAL TO M ODERN 335
in the social life of medieval guilds and communes,68 in medieval corpora-
tion law, and in the sort of political theology that we considered earlier in
the writing of Gerson, and then in Vitoria and Suarez. This way of thinking
still characterized the work of Grotius.
In the l11/eidi11ge Grotius wrote that a political community possessed a
"higher right" than its individual members; but this was because the mem-
bers could not be safeguarded unless the community was preserved.69
Similarly Grotius wrote in the De jure belli that a commonwealth enjoyed
the greatest right over its members; but he also maintained that the pur-
pose of the state was to safeguard each individual in the possession of
what was his own. 70 He added that it was not contrary to the nature of
society for individuals to look out for their own advantage provided that
they did not violate the rights of others.71 Even in writing about the
common good Grotius could stress the advantage of individuals. He wrote
that a person should prefer his own good to that of another but should
prefer the good of the whole community still more; but this was because
the good of the community included the goods of the individual mem-
bers.n Evidently Grotius did not intend individuals to be merely sub-
ordinate parts of a holistic organic community; each had his own sphere of
interests where he could legitimately pursue his own advantage. Some-
times, indeed, Grotius wrote as though individual advantage was the sole
basis of social order and altruism only a kind of enlightened self-interest.
But this was not his real intention; just as when he discussed the origi-
nal formation of the state, the appeals to self-interest were balanced by
references to human sociability. Disputing an argument of Vazquez that
a person should put his own interest before that of the state, Grotius
wrote, "We do desire the safety of the state for our own sakes, but not
only for ourselves, rather for ourselves and others too." 73 And, again, "We
are drawn to friendship spontaneously and by our own nature ... charity
often advises me, sometimes commands me to put the good of many
68. Antony Black gave an admirable delineation of medieval communal life that m11tnti.•
11111/nndis might define the attitude of Grotius too. See his Guilds and Civil Socitly. 65, - nu•
crucial point about guilds and communes was that here individ11ation and association Wt'nl li1111rl
i11 /in11d."
69. /nlridingr. 2..3.2, 52.
70. DI' jurr /xiii, 2 ..'i21. l'i7. "C"o nso.-i,1111• 'I'"' multi patrt>s familiarum in unum populmn
.K (°ivitatC'm CC)('unl m... in111n1 cl.cl ju~ ·~•rpc •rl m pitrlc..,"'; I 2.1. 16. "Nam socirla:o1 '"' h•urlll 111
SUU0 1 CUiquc• ~"l1Vl10l -.at' I llllUUlllf• orw IU • ll1t~pt r11ticUU' ••
71. It.id., 1.2 I, 17. "'Nun r•I r11t11 '''""" ••" lrlnll~ lhclur.m1 sihi prollpin •n'. 111<1111• n 111·
"ult-rt•. dum j1111.1llc-11um " "" tul\"h11 •·
72. /Jr ;11rq•tnr1/nr. JI
7 l /11" /111.-Jorlli. J I •J. UM
336 THE IDEA OF NATURAL RIGHn
above my own good."74 In one of his most holistic statements Grotius
declared, contrary to the view of most moral theologians, that an innocent
person could be handed over to be killed by an enemy army if this would
save the whole community.75 But he also wrote that it would be a violation
of natural law for a ruler to deprive his subjects of their rights without just
cause.76
In this way of thinking individual rights could flourish only in a well-
ordered society; but a society could flourish only if the individual mem-
bers cared, not only for their own well-being, but for that of their fellow
members and of the whole community. Grotius does not confront us with
isolated individuals facing an omnipotent state but with human persons,
sociable by nature, bound by ties of friendship and mutual support, each
acknowledging a duty to respect the rights of others.
I want finally to consider the views of Grotius on sovereignty and the
right of resistance. He introduced these themes with a new definition of
the "subject" in whom sovereignty inhered:
Let us see, then, what subject holds the supreme power. The subject is
either common or special. Just as the body is the common subject of the
power of sight, the eye a special subject, so too the commonwealth, which
we defined above as a perfect association, is the common subject of
~ I
supreme power."
The comparison of the political community with a human body was a very
old metaphor, but Grotius here used it in a new way; his definition empha-
sized the abstract nature of the state by distinguishing between the
underlying sovereignty of the whole and the exercise of sovereignty by the
government that a commonwealth instituted. The essential characteristic
of sovereignty, according to Grotius, was that its holder was not legally
subject to any superior authority. Sovereignty did not consist in an unlim-
ited power of imposing obligations.78 Subjects were not required to obey
a law that commanded something dearly wrong or even a manifestly fool-
ish and ridiculous law.79 Rulers were bound by natural law, divine law and
the law of nations.80
In spite on such considerations, Grotius included in the De jure belli a
notorious defense of absolutism. He pointed out that, according to both
74. Ibid.
75. Ibid., 2.25.3, 411 .
76. Ibid., 214.8, 258.
77. !bid., l.3.7, 52.
78. Ibid., "Summa autem illa dicitur, cujus actus elteriu~ juri non ioubsunt . . . .";
2.14.12, 159, " . .. ncque mim obllgandi infinilil pote~la~ i'ld lmp<"r·ium reel.- t>xerct'fldum
nca!SSaria ~t ."
79. Ibid., l.4. l , H0; 7.. 4. 12,:Z~I
HO. Ibid .• U . 111, r.I.
GROTIUS. FROM MEDIEVAL TO MODERN 337
Roman and Jewish law, a man could sell himself into slavery; in the same
way, he argued, a whole people could submit itself to an absolute ruler,
retaining no vestige of power for itself. This could happen, for instance,
if a people threatened by destruction or starvation turned to an absolute
monarch for succor.8 1 In another discussion on slavery Grotius remarked
that, "if the condition is accepted within natural limits it contains no ele-
ment of undue severity."82 (One is reminded of David Davis's comment
that early modem discussions of slavery seem always to come from a
world remote from the real one that contained "the disease and sicken-
ing stench of the slave ships."53) Grotius's argument has an ugly sound in
mode m ears, but one can see why he needed to include it in his work. He
was trying to set out the principles of a system of international law that
could apply to all states. Some of them were indeed dominated by ab-
solute governments ruling over subject peoples; a universal system had to
include such regimes.
There is no reason to suppose that Grotius favored absolutism; he
was not here discussing the best form of government, he explained, but
the possibly legitimate forms. His argument then continued with an ac-
count of a variety of constitutional arrangements in which the exercise
..
j
of sovereignty was restricted or diffused in various ways. Everything de-
pended on the kind of regime that a people chose to establish in the first
"l place. An assembly of estates might have the power to enact laws bind-
I ing on the king; a king' s exercise of sovereignty could be restricted by his
I own promises; a sovereign ruler might hold power only for a limited time
like a Dictator in ancient Rome; a people might reserve certain powers
to itself when instituting a king; and there could be various forms of mixed
constitution.114
When Grotius considered specifically the right of resistance to an es-
tablished government he was continuing, in a rather moderate fashion, a
tradition of writing against tyranny that we often encounter in medieval
.ind early modern sources. Like Suarez, he treated resistance to tyranny
.is a form of just warfare based on the right of self-defense. " By naturt-,"
he wrote, "everyone is the defender of his own rights; that is why Wl'
.ire given hands.''85 But this natural right of resisting injury was restricted
when a civil society was instituted. The state then acquired a "greatc>r
right" over individuals and their property in order to maintain public trnn-
quility. Hence there could h<' no Kt.' rwral right to resist the authority of tht>
II I. lhid., L:ll!, 'iJ.
112. lhid .• 25.27. l'ill C11•ll110 ... 1.t... 1 h 1•11• ''"'' "m.•~h·r tli.t nol h .wt• a riKhl of Ill•• Ml<I
•••·.1th ov.-r a s lav•• .1ncl lh"'I "'ol"'v" 1 11111•1 lh Hlv '"'~'' lltMhl lo "'v11l,l 1•"•"•'!l•ivt• t'rtll"lly.
11.1. D. fl I >.ivi~. Hi,. 1'111/r/t111 •t/ "''" '" ~ 111 Wr'•l1·111 t 11/1,,,, (11'1,,1·" · NY, IWlf>), lllH
114. I Ir 1urr· 1~·111. I I IO Jll, 'I'/ ,,.,
II'• lh1<I , I '• I. <IH
 338 TuE IDEA OF NATURAL RIGHTS
state; that would lead to anarchy.86 Grotius would not even countenance
the Calvinist doctrine that inferior magistrates had an inherent right to
resist on behalf of the whole people.87 But he did acknowledge that a right
of resistance could revive in circumstances of extreme necessity. He wrote
that he would not condemn either individuals or a minority of the people
who, in the last resort, defended themselves against atrocious cruelty,
provided they did not abandon consideration of the common good. But
Grotius held that, even in such extreme circumstances, the person of the
king had to be spared.1111 It was different with a usurper who seized power
by force; because he was making war on the whole people he could licitly
be killed by anyone, even a private individual.89 Other grounds of resis-
tance depended on the form of government that a people had established
for itself. It might be specified in the original compact that a ruler could be
deposed if he violated some particular law; or the people might resist if
a king grasped after some power that had not been granted to him or if
the people had reserved a right of resistance to itself when it instituted
a ruler.90
Grotius summed up his teaching on the various forms of government
in a characteristic phrase: "Just as, in fact, there are many ways of living,
some being better than others, and out of so many ways each is free to
choose the one he wants, so also a people can select the form of govern-
ment it wishes.'191 A part of Grotius's appeal to later political theorists lay
in the fact that his arguments were often open ended in this way. Monar-
chists could point to Grotius's defense of absolutism as a legitimate form
of government; constitutionalists could explore further his account of the
various ways in which sovereignty could be limited. Rationalists could
emphasize Grotius's Etiamsi daremus ("Even if we grant that there is
no God .. .."); Christian rights theorists could insist on his teaching that
God's free will was a source of law. Empiricists could treasure Grotius's
vast array of historical examples; those who preferred a mathematical
86. Ibid ., 1.4.2, 80, ~Et naturaliter quidem omnes ad an:endum a se injuriam jus habent re-
sistend i. . .. Sed civili societate ad tuendam tranquillitatem instituta, statim civitati jus
quoddam majus in nos et nostra nascitur.. .. Potes! igitur civitas jus illud resistendi promis-
cuum publicae pads et o rdinis causa prohibere. .. . Nam si maneat promiscuum illud
resistendi jus, non jam civitas erit, sed d issociata multitudo. h
87. Ibid., J.4.6, 84.
88. Ibid.. 1.4.7, 87, attamen indiscriminatirn damnare aut singu las aut partem populi
N • ••
minorem, quae ultimo necessitatis praesidio sic o lim usa s it, u t interim et communis boni l't'-
spectum no n deferat vix ausim .... Illa interim caulio lenenda <'~I. etiam in tali periculo
personae regis parcendum .... "
89. Ibid .. J.4.16, 91-92, "Al· primum, ~i ht•llo injtLqtn . . . imp<>rium .1rrip11erit . . . a quo lil>l-1
etiam privato jun' pof('j<t lnlt'rfkl "
Q(l. ll>ld., 1.4 12 -14, 'H
·~I . /hid., I :1 II. 'I.I
GROTIUS. FROM M EDIEVAL TO MODERN 339
mode of reasoning could appeal to his a priori arguments. The medieval
tradition was multifaceted and, in transmitting many elements of it,
Grotius left various choices open to his successors who would understand
his writings in various ways. One might apply to his work too the quota-
tions that I used earlier in discussing the medieval canonists. "[A].ny text
may be an actor in an indefinite series of linguistic processes'' and " [A]/l
linguistic interpretation involves interpretation by an audience."'lZ
We are still left with a problem. In writing on all the aspects of natu-
ral rights theories that we have been considering-the meanings of ius,
the idea of a permissive natural law, the origin of property, the relation of
individual to community, the right of resistance-Grotius seems to have
I, '
been continuing medieval lines of thought. But, if this was so, why did
?;·•
his contemporaries and his successors for more than a century so often
see him as an innovator, the founder of a new theory of natural law and
I
natural rights? It was partly of course because, to many readers, his hu-
manist style of writing seemed to come from a world far removed from the
dusty technicalities of late medieval scholasticism. Haggenmacher real-
ized this when he chose as an epigraph to introduce his study of Grotius
.'{:
1 some words of C.N.S. Woolf: "What men say is not the only important
"·
thing; often it is equally important to know how they said it." One is
-~
,/.
1'
reminded of Gerson's statement: " I shall not say things d ifferent from
others, but perhaps differently." To say that Grotius merely restated old
l
I ideas in a new way might seem to trivialize his work; but that would miss
the point of his achievement. Gerson's different way of saying things was
of great importance for the future, and so was that of Grotius. This was
because, like Gerson, Grotius was deploying old arguments, not only in a
new idiom, but also in a changed context where they took on new mean-
ings and found a new significance.
Grotius was in fact using the medieval tradition of thought about
natural law and natural rights to sustain a new vision of the world and the
church. Many Catholic authors- though by no means all-had given up
the view of the medieval hierocrats who held that the pope was a temporal
lord of the whole world. But Catholic thinkers still commonly maintained
that the pope possessed at least an "indirect" power by virtue of which
he could intervene in temporal affairs to attain spiritual ends. Through his
indirect power the pope could release subjects from oaths of allegiance,
depose a heretical monarch, launch wars to extend or defend the Chris-
tian faith. The Catholic id(•al was a world order in which the pope was
supreme in s piritu.11 .1fl.tir11 1111d h114' 11 rnn11idC'rahl<' authority to regulatt'
temporal mattc•r!'I .1bo. l111 ·011tt11Ht ht thl11, ( :rotiw1 <>nvisage d a world madt•
up of fn~ ~ovc•n·l~n Hll\h•11, ( ' h rh•tl111111ntl 111111( "hri11tia11, owing allt•giann•
•n l\huvr. 47

340 THE IDEA OF NATURA\. RIGliTS
to no external superior.93 It was a world in which commercial rivalries as
well as religious conflicts had become a major cause of wars. A degree of
order and harmony in such a world could be maintained, Grotius thought,
not by an appeal to some overriding spiritual authority, but by the
common consent of all nations to the code of international conduct that he
had diligently worked out for them.
Grotius's vision of the church was different too, and unusual for his
age. Catholic thinkers generally agreed that forced conversion of infidels
was not permissible, but they all took for granted the persecution of dis-
sident Christians. For them the Roman Catholic church proclaimed the
one true faith and those who apostatized from it could be punished as
heretics-even by death in the last resort. Suarez expounded this doc-
trine quite contentedly as any other Jesuit of his age would have d one.
But Grotius rejected the use of physical coercion as a way of responding to
differences of opinion among the various groups of Christians.94 He cher-
ished a dream of a reunited Christendom in which all the churches could
cohere around a common core of Christian faith, tolerating differences on
peripheral matters and respecting each others various rites and practices.
Grotius's account of independent sovereign states, owing no external
allegiance to any spiritual or temporal power, reflected the emerging re-
alities of the seventeenth century. His vision of a universally accepted in-
ternational law and of a reunited church were only idealistic hopes for the
future. But, for one reason or the other-because of the realism or because
of the idealism- later generations of political thinkers often looked back
on the Dutch scholar as a founding father of their discipline. His work in-
fluenced all the major rights theorists of the next century, Selden and
Hobbes and Locke in England, Pufendorf and Leibniz and Thomasius in
Germany, Domat and Pothier in France.
Of all these later writers, Hobbes is the most difficult and controver-
sial. This is no place for an extended discussion of his work, but it would
be wrong to pass it over entirely without comment since there still exists
a considerable school of thought maintaining that Hobbes-not Ockham,
not Gerson, not Grotius-was the true originator of a modem theory of
natural rights and that he expounded this theory with rigorous logic in his
political writings. Here I can do little more than indicate my disagreement
with such views. To me it seems that Hobbes's work is best seen as an
aberration from the mainstream of natural rights thinking that flowed
from the medieval jurists through Ockham, Gerson, and Grotius to Pufen-
dorf and Locke and writers of the Enlightenment like Burlamaqui and
9'.l. On th<' difff'n•nt worhl vir w" of l :rnliu~ ""ti tlw Sp1m i'4h .,·hol"•lic ·~ so·•• I M11!.11>on,
'1"11r Amfrirns iu ,,,,. Worlrl < 1,.,,.,
(l'hll'11l1•l1'hl11. 1'1'14). l'/ 4
~4. lhi1I., 2.211 .">CI. .14h
f l
GROTIUS. FROM MELJJEVAL TO MODERN 341
Wolff, in whom the traces of medieval thought are still very evident. I also
think that Hobbes's attempt to combine fragments of medieval natural law
doctrine with his own radically different world-view produced incoher-
ences between the different branches of his thought and lacunae within the
political writings themselves.'5 Hobbes's great gift was for rhetoric, not for
logic-that is why his Leviathan is such a masterpiece of English prose.
Everyone notes that Hobbes intended to argue like a mathematician, but it
.;
is seldom observed that he was very bad at mathematics. In a mathemati-
' cal argument rigorous logic is essential and its absence readily apparent.
Hobbes's ventures into mathematics are absurdities.
These are complex issues. It is at least clear that, in Hobbes's theory,
the natural state of humankind was one of "war of all against all," that
~ everyone had a natural right to everything, "even to another's body," and
that no one had a duty to respect the rights of others. But how can this
I
conceivably be regarded as the origin of modem rights theories? What
modem defender of natural rights or human rights is asserting such a doc-
trine? Even contemporary libertarians, who might seem dose to Hobbes in
that they put individual rights at the center of their political theory, have
j
generally rejected his teachings and adopted a more Aristotelian view of
human nature.%
Let us return for a few final words to Grotius. We all know intellectu-
ally, but it is sometimes hard to grasp imaginatively, the bitter hatred of
early Protestants for every aspect of the medieval Catholic church and the
deep disdain of humanists for the inelegant but workmanlike prose of
the medieval scholastics. Protestants and humanists wanted to tum their
backs on a thousand years of European history and return to an idealized
ancient world of classical culture and primitive Christianity. It was a hope-
less enterprise. The whole structure of Western society as it existed in
the early modern era had been shaped by centuries of medieval experi-
ence. The nations of Europe were medieval in origin; so were their lan-
~. II guages, their monarchies, their courts of judicature, their assemblies of
estates. And medieval thinkers had also developed the concept of natural
f 1
rights that was becoming of central importance in early modem political
t
95. Michael Oakeshott admired Hobbes's intellect but still wrote of his work, ff r-.·w .....
counts of it do not end with tilt> dC'!t'<lion of a smn' of simple errors.... Stt "Introduction" to
ff
/.r111alknn (O xford, 1'14h), Ii ( l11k•·•holl !'lnw 1lnhho'!'I :is a continuator of chango'!'I " whi,·h h ... 1
'"' I hei•n pion(>(•n'<i d•i••Oy l>y tlu- 1h.-nl111ti·"'" nl 1111" fifr.-.·nlh .1n.t !liXtl'('nth renturi~" (lili). 'fo nw.
.1s noted ahov•·. I le •hi>•·".,..,....,. m111<• olo•vl1111I l >11" 1•rr"41t1.,I rn•lt• I might add that I firllt hc1(nn
to study I lnhl'4•• ''" """ llfly V•'""' "K'' "" "" 11wh•11trn1h1,1t.- Ill ( ),1k1·~holl 'l' polilkal lhrory
cunrs«' .11 ( "11mhrnl1t••
'16. c>n thl~ ""' tllt' '""' '""'""tu Mrto """· """""""'"" · •111•1 I >.•11I lyl111 2f1:\ n :\I 11!1ov1• '"'''
N !111rry, ""llu·1 ·urn111•l nl N•l1111• 11111111•1,.l l'ullllc 1ol llu1111thl."' lcorir11d/off.rllf't/111rn11 ~fucl1r•
H(1 '111"1. I 17
- - - - --- - ·- - -- - - - - .

~4?. THE (DEA OF NATURAL RIG HTS

discourse to supplement the more ancient doctrine of natural law. Me-

dieval experience formed an indispensable part of the "usable past" of
seventeenth-century society. It was not possible to build a theory of the
state suited to such a world solely out of fragments of ancient Greek,
Roman, and Judeo-Christian lore. In spite of his own fondness for classical
allusions, Grotius chose a different path when he assimilated so much of
the medieval heritage into his new "modem" synthesis. For a Protestant
humanist of his time to enter with sympathy and insight into the world of
scholastic thought, to reappropriate essential elements of it, to "repristi-
nate" them so to speak by applying them to the new circumstances of the
age, and to reformulate medieval teachings in an idiom that made them
accessible and acceptable to future generations of scholars-all this was a
very great achievement. It required a far-ranging mind and a generous
heart. Grotius did not create a new theory of natural rights and natural
law; but what he did achieve was equally important. He made it possible CONCLUSION
for the old theory to live on into the modem world.

§ ome words of a modem pope, John XXIII, might be taken as sum-

ming up a principal theme of this book. According to the teaching of
Pacem in terris, natural rights and natural law are both derived, not from
some vision of cosmic nature ("the laws . . . which regulate the blind elt•-
mental forces of the universe"), but from our perception of human natun•
as "endowed with intelligence and free will." 1 Rights and duties, the popt•
wrote, flow as a direct consequence from human nature so understood.
Such ideas are not new. The popes of our age, who have embraced so
enthusiastically the idea of natural rights, after their predecessors con-
demned it for many years as an irreligious, Enlightenment aberration,
have been returning, unwittingly perhaps, to a tradition rooted in the
Christian jurisprudence and philosophy of the Middle Ages.
The idea of natural rights grew up-perhaps could only have grown
up in the first place-in a religious culture that supplemented rational
argumentation about human nature with a faith in which humans wert>
seen as children of a caring God. But the idea was not necessarily deprn-
d ent on divine revelation, and later it proved capable of surviving into
a more secular epoch. The disinclination of some Enlightenment skeptk~
to regard God's law as a sufficir nt ground for moral behavior, and thl·
widespread h•nd••ncy, .1f1l'T I lunw, lo doubt whether reflecting on human

I. " 1',u·.-111 In lc•11I",". 111 4 I "'"' ' " '"' llor l'"J'rll ,.,,, y./1111/s, '> vol". ( /\1111 l\rl>or, 1'1'111)
~· 11 111

'"'
344 THE [OEA Of NATURAL RIGHTS

inclinations could yield moral insights,2 raised new problems about the
r l •i CONCl.USION

new in each succeeding context. That is why a historical tradition can be

345

justification of rights that are still matters of dispute. But the appeal to
natural rights became more prominent than ever in the political discourse
of the eighteenth century. The doctrine of rights shaped by the experience
of previous centuries turned out to be still of value in addressing the prob-
lems of a new era. The proponents of the secularized rights theories of the
Enlightenment had often forgotten the remoter origins of the doctrines
they embraced; but their rhetoric about the rights of man becomes fully in-
telligible only when it is seen as the end product of a long process o f
historical evolution.
Perhaps it would be more satisfying if the idea of natural rights had
entered Western political thought with a clatter of drums and trumpets in
some resounding pronouncement like the American Declaration of Inde-
pendence or the French Declaration of the Rights of Man and the Citizen.
In fact, though, this central concept of Western political theory first grew
into existence almost imperceptibly in the obscure glosses of the medieval
jurists. One might say that, in the works of the early Decretists, a dis-
tinctive mutation of thought and language occurred which gave rise to a
whole new species of ideas, the species of natural rights theories. Individ-
ual examples of the species came to vary widely after a few generations,
shaped by the experience of changing environments. In some later histori-
j
cal environments natural rights theories could not survive at all. Some-
times the seed fell on stony ground. Sometimes the theories that grew up
were stunted and deformed.
Biological metaphor can carry us only so far. Historians do not have
f medieval idea that liberty is a natural right led on to effective movements
such elegant models to explain the development of ideas as scientists
use in describing organic evolution. It is partly of course because cul-
tural evolution is Lamarkian, not Darwinian. Acquired characteristics are
passed on to succeeding generations. To put it differently, each particular
rights theory was shaped partly as a response to a specific set of contingent
circumstances. So a history of natural rights theories has to be concerned
as much with contexts as with texts. In the Middle Ages we considered the
contexts of twelfth-century juridical humanism, of fourteenth-century
•
.•
intelligible, something other than a mere sequence of unconnected Fou-
caultian archaeological layers. Language inherited from the past, shaped
by old, perhaps forgotten contingencies, formed a part of the context
within whkh each succeeding rights theorist lived and thought and wrote.
Characteristics of language that were first acquired in the twelfth-century
persisted. The language of the Decretists was a part of the context for Oc.k-
ham, Ockham's language for Gerson, Gerson's for Suarez, the language of
Suarez for Grotius.
The history of natural rights theories can best be seen as a series of
creative responses to a variety of past experiences. I have been empha-
sizing that, in discussing this history, we need to consider a sequence of
; changing contexts, sets of contingent circumstances that no one planned
or foresaw. But I do not want to argue that the whole story of natural
rights is just a chapter of historical accidents. The point is rather that, once
the idea that all persons possess rights had grown into existence, it dis-
played a remarkable vitality and adaptability and proved relevant to a
variety of emerging problems. At the end of the period we have con-
sidered the process of development was by no means completed. The
modern doctrine that freedom of religion is a natural right emerged only
after the hard and bitter experiences of the seventeenth-century Wars of
Religion and then, at first, only in the writings of a few dissidents. The
for the abolition of slavery only when it was reinforced by the humanitar-
ian impulses of the late Enlightenment.
Not all later developments of thought were favorable to the persis-
tence of a political culture of rights. During the post-Enlightenment era
natural rights fell into disfavor; by the end of the nineteenth century belief
in such rights had almost faded away before the onslaught of historicism,
cultural relativism, and legal positivism. To all this, Karl Marx added his
own withering criticism. In a famous phrase, he wrote that the rights of
liberal capitalism were merely egotistical, "the rights of the restricted indi-
.
I

Franciscan poverty disputes, and of fifteenth-century Conciliarism; then
the discovery of the New World, the turmoil of the Reformation, the na-
tional and civil wars of the seventeenth century provided fresh contexts in
which rights theories could find new applications. But not everything was
2. But the position of Hume himsdf on this mallt>r is far from clPar. Alasdair Macintyre
has observed, w ith reason, I thinlc, that " I lumt' rPas!l<·rt~'<i thl• founding of morality nn human
nature" against a Protestant virw th111 ."'1w hum;in~ "" radically nururt Wh;it ••Is•" n m a
human morality ix- gruundt'd 1111, on,. might"""· t•xn ·pt on 11 n>nsicl..r.1tion of humnn chara«-
ll'ri~li~ wht'llwr or 11111 w1• n•gnnl lhoiw d1itrnd1•1 j"ll"" "" lmpl11n1t.. t hy .1 ··11ring t ;net ? l'or
M;1d11lyn•1< vlf'w ,...,. W I> I huli•o n . ... 1. nrr 1~ c l11,11l1l ll11n l11•11 (l•>11<lun, l''"''l. ·l 'l
vidual withdrawn into himself." But this was still not the end of the story.
~ r
'
i" :~
In the aftermath of World War II, there came a great revival of rights rhe-
toric, exemplified above all in the United Nations Universal Declaration of
fl : Human Rights. Simple-minded moral relativism seemed inadequate in
face of the unthought of evils of the Nazi regime.
A survey of tlw early history of natural rights theories can fittingly t•nd
with a glanCT.' at tht• n1rn•nt situntion, tlw phase of the tradition that we an•
now living throuKh . 11"11 "n·11h1ry nfh•r the.• UN Declaration tht• status of
human rights iH ll)(1'i11 1•1rn u i1111" TllC'n• .trc• two major probl<'m!'I. Jn tlw
West Wl' hnvt• 111•c•n cm .. 11111••1"''•lluf11111"111111 of rightR lnnguaKt'. 111111 IH
nol simply <h1t• 111 th11 '1'1'111£111111111 111 wc•llM•' rlKhlic; thnl hn11 bt•c•n pnrt of
346 THE IDEA O F NATURAL RIGHTS
the tradition from the beginning. The problem is rather that nowadays, be-
sides a luxuriant array of rights inhering in various classes of humans-
rights of ethnic minorities, rights of women, rights of children, rights of
gays, lesbians and bisexuals, rights of the handicapped, rights of consum-
ers, rights of smokers and of nonsmokers, and so on almost endlessly-
besides all this we also encounter rights of animals, rights of trees, rights
of unborn generations. These various rights claims may all be ways of
advocating desirable social policies; but the multiplication of innumer-
able particular rights can erode any sense of community and the common
good, values that the earlier rights theorists never lost sight of. As Mary
Ann Glendon has recently complained, the modem inclination to force all
controversial issues into a straitjacket of rights talk tends to impoverish
our political and moral discourse.
And yet, to abandon the language of rights altogether, and the belief
that some rights are human rights or natural rights, would be to cut the
heart out of our political tradition. To define such rights, perhaps the for-
mula of Thomas Jefferson that we noticed at the outset-"Life, Libe rty,
and the Pursuit of Happiness"- is not such a bad one afte r all, especially if
we extend the terms a little and take "Life" to include access to the necessi-
ties of life and "Liberty" to include freedom from arbitrary imprisonment
and torture as well as from outright slavery. "Pursuit of Happiness" is a
notoriously vague phrase but we should not expect too much precision
in this area. The concept of rights can be open-ended without becoming
all-embracing. Different people pursue happiness in different ways. As
Grotius observed, "There are many ways of living, some being better than
others." We should expect to find basic rights exemplified in varying ways
in different societies.
I said that there are two major problems concerning the current status
of human rights. The second, more grievous one, is that in many parts
of the world the most elementary rights are denied altogether to subject
peoples. The leaders of repressive regimes sometimes pay lipservice to the
ideal of human rights but ignore it in practice; sometimes they condemn
the ideal itself as a Western aberration and resist the extension of basic
rights to other regions as just another form of Western chauvinism.
It is true that an ideology of rights first grew up in the Western world.
That has been the theme of this whole book. And it is most certainly true
that we cannot elevate every Western predilection into an imaginary
human right and then expect other peoples, regardless of their histo ries
and cultures, to embrace all such rights. But the Western origin of rights
language does not in itself preclude the possibility that the underlying
ideals and aspirations inht•rt•nt in that languagt• ma y provt• to havl' a uni-
versal significancl'. Motkm ttochnoloxy i!oi . 1 product of tht• Wt•sh•rn world,
rooted in ct>11h1ri1 ·~ of Wt•Nh'rn n1ll11rnl hi~lnry, hut, fur lll'llt'r or worst•, ii
CONCLUSION 347
has been eagerly accepted in all parts of the globe. Marxism is an ideology
of distinctively West European origin; but, while it was fashionable, it
found its widest acceptance in other regions. So too the language of rights
does not have to be uniquely Western. Rights language did not grow up
in the West because Western people are better or wiser than others; it is
just that we have had a different history. There is at least a possibility that
others may choose to profit from it.
A glance back at the early history of rights theories may give us reason
to think that it could be so. We might learn from our history, for instance,
to appreciate the variety of cultural contexts within which an ideal of
human rights could flourish; medieval society was Christian and Western,
but in most ways it was more like the society of an underdeveloped coun-
try nowadays than like that of a modem industrial state. We could learn
too that the idea of natural rights in its earlier formulations was not one of
"atomic individualism"; it was not necessarily opposed to the communi-
tarian values of traditional societies. Nor was the idea dependent on any
particular version of Western philosophy; rather it coexisted with a variety
of philosophies, including the religiously oriented systems of the medieval
era and the secularized doctrines of the Enlightenment. The one necessary
basis for a theory of human rights is a belief in the value and d ignity of
human life. The first rights theorists derived such a belief from their Chris-
tian tradition, but all the great world religions have taught respect and
compassion for the human person. And the human needs to which human
rights respond are not characteristic only of Western peoples. Surely in all
societies, humans have preferred life to death, freedom to servitude, suffi-
ciency of food to starvation, dignity to humiliation. The rights language.•
that grew up in Western culture was one way of addressing such universal
concerns.
Rights talk cannot solve all moral dilemmas; it has a limited range of
applicability; but it can be of very great value in the particular contexts
where it is truly relevant. Rights claims are most effective when they are
used to combat gross political oppression or the harshest forms of eco-
nomic deprivation. In an age Hke ours, so fertile in the invent.ion of new
forms of tyranny and characterized by such extreme degrees of poverty
and wealth, these claims have a special urgency. The language of rights is
often abused nowadays but, when faced by such intractable probll'ms, Wt'
would be unwise to diminish its lf'gi timate role in our political discourst•.
If, instead, we nintim11• lo insist on a ft•w true human rights as a llfliv1.•rsal
lwritagc, w1.• s hall pn•snvt• wh11I is ll(•s l in our tradition, and Wl' mi~ht
t•ven hopt• to .mll'liornlt•, lo No1111• 1•'Clt·nt, tlw nmdition of humankind in
tht• cumin~ millt•nlum
Wt•stNn ri~r,ht11 llll'11t h•11w1•1s<11111, 111llwir11ri.~in, simply ,m t'llprt•ssion
o ( 1111• more• •'>-totl11tl111l 1t111•11l1111•1t 1111•.ulv 111111!1·r11 c.1pit.1li~m1. Tlwv IMvt• ,,
348 THE IDEA OF NATURAL RIGHTS

respectable ancestry in medieval law and religion. They grew from good
seed; perhaps they will continue to bring forth fruit. That will depend on
the kind of environment we create for them in the years ahead. The texts
of the twenty-first century on human rights will also be shaped by their
contexts.

BIBLIOGRAPHY OF WORKS CITED

PRIMARY SouRCES

Alexander of Hales, Alexnndri de Hales ... Summa theologica, 4 vols. (Quaracchi,

1930-48)
Alma in, Jacques, Expositio circn decisiones Magistri G11illelmi Occam, in Johannes Ger-
so11ii opera omnin, L. Ellies du Pin, ed., 2 (Antwerp, 1706): cols. 1013-1120
- - -, Quaeslio res11mptiva . .. de dominio nnturali, civili et ecclesiastico, in Johannes
Gersonii opera omnin, L. Ellies du Pin, ed., 2 (Antwerp, 1706) cols. 962-76
- - - , Trndatus de nrictoritnte ecc/esiae et conciliorum generalium, in Johannes Gersonii
opern omnia, L. Ellies du Pin., ed., 2 (Antwerp, 1706): cols. 976-1012
Andreae, Johannes, In titulrtm De regulis iuris novella rommentaria (Venice, 1581)
- - -, /11 q11intum Decretalium librum novella commenlaria (Venice, 1581)
Aquinas, Thomas, De perfectione spiritualis vitae, in Sancti Thomne de Aquino 011ern
omnin i11ssu Leonis XIII PM. edita, 41 (Rome 1970): Part 8 , 67-122
- -, Summa contra gentiles, P. Marc, ed., 3 vols. (Turin, 1961-67)
- -, Summa lheologiae, P. Caramell, ed., 3 vols. (Turin, 1952- 76)
Baisio, Guido de, Rosnri11m decrelomm (Strasbourg, 1473)
Bentham, J., "Anarchical FaJlacies," in The Works of Jeremy Bent/ram, J. Bowring, t><L.
}: : 2 (Edinburgh, 1843): 489-534
, I
Bonagratia of Bergamo, Trnctatus de Christi el apostolorum pauperlnle, L. Oligt'f, t>tl .•
l, !' in Archivum Frnnciscnm1m historicum 22 (1929): 292- 335, 487-511
• I
.. i Bonaventure, Apo/01~frr pnrlJ'rrrmr. in 01•rra onmia rdila cura rt studio l'I'· co/ti-xii "
- l S. Bonm.11·11/11m. 8 (U11.1r.u·1·h i. 1898)· 2.1.1 :no
l!urlilmaqui. J.J.• Tfrr' f'11r11·11•lr··. r•f Nrr/11111/ / ' "''· T. N11"t•nl, trans . (Camhrid,.;t•, M .1ss .
1807)
I >1·1·rr·ta/r:; I >. ( :r1·;.:m II I .'i '"'" ~,,...,. (I v1111~. I 11)'1)
/:rlmm,l(fllll1'• /11ltr1111r1• .\ ',"(/I. I 1111111111. 1•.t (V11lh 1111 C 1ty, l'IH"l)
350 BIBLIOGRAPHY
Filmer, Robert, Patriarcha and Other Writings, J.P. Sommerville, ed. (Cambridge,
1991)
Friedberg, E., ed., Corpus i11ris cancmici, 2 vols. (Leipzig, 1879)
- -, Quinque comp;Jationes antiquae (Leipzig, 1882)
Caius, The Institutes of Gaius, F. de Zulueta, ed. (Oxford, 1946)
Gerson, jean, Contra bu/lam "Rrgnans in excelsis", in fean Gerson. Oeuvres completes,
P. Glorieux, ed., 10 (Paris, 1973): 32-34
- - , De potestate ecclesiastica, in Oeuvres completes, 6 (Paris, 1965): 210-50
- - , De vita spirituali animae, in Oeuvres completes, 3 (Paris, 1965): 113-202
- - , Erreurs de fean Gorrell, in Oeuvres completes, 10 {Paris, 1973): 34-39
- - , Propositio facta coram Anglicis, in Oeuvres completes, 6 (Paris, 1965): 125-35
- -, Tractatus de unitate ecclesiae, in Oeuvres completes, 6 (Paris, 1965): 136- 45
Giles of Rome, Aegidius Romanus. De ecclesiastica potestate, R. Scholz, ed. (Weimar,
1929)
Godfrey of Fontaines, Les Quodlibets onze-qUJJrtorze de Godefroid de Fontaines, J. Hoff-
mans, ed. (Louvain, 1932)
Gratian, Decretum Gratiani ... una cum glossis (Venice, 1600)
- - , The Treatise of Laws With The Ordinary Gloss, A. Thompson and j. Gordley,
trans. (Washington, 1993)
Grotius, Hugo, De imperio summarum potestatum circa sacra (Frankfurt, 1690)
- - , De jure belli et pacis,J.B. Scott, ed. 2 vols. 1. Reproduction of the Edition of 1646
(Washington 0 .C., 1913). 2. A Translation of the Text, by Francis W. Kelsey
(Oxford, 1925)
- - , Hugonis Grotii de jure praedae commentarius, H .G. Hamaker, ed. (The Hague,
1868)
- -, Inleidinge tot de Hollandsche Rechts-Geleerdheid, F. Oovring et al., eds.
(Leiden, 1952)
- -, The Freedom of the Seas, R.V.O. Magoffin, trans. (New York. 1916)
Henry o f Ghent, "Quodlibet 9," in Henrici de Gandavo opera omnia, R. Macken, ed.,
13 (Leuven, 1983)
Hervaeus Natalis, De iurisdidione, L. Hool, ed. (Munich, 1959)
- - , De paupertate Christi et apostolorum, J. G. Sikes, ed., in Archives d'histoire doc-
trinale et litteraire du moyen age, 12-13 (1937-38): 209-97
Hobbes, T., De Cive. The English Version, H. Warrender, ed. (Oxford, 1983)
- - , Leviathan, M . Oakeshott, ed. (Oxford, 1946)
Holcot, Robert, In quatuor Tibros Sententiarum q11aestiones (Lyons, 1518)
Hostiensis, Lectura in V /ibros Decretali11m (Venice, 1581)
- -, S11mma LJm11i11i llr11rinis Ca'4li1111li.~ ll1l~lil'llsis (Lyons, 15:17)
I l11K11crio. S11111111111lrart11rw11. A.tmonl. Stlftshihlluh•k, MS 7
BIBLIOGRAPHY 351
Innocent IV, Commentaria lnnocentii . .. super libros quinque ckcrttalium (Frankfurt,
1570)
John XXIJ, "Quia vir reprobus," in Bullarium Frandscanum, C. Eubel, ed., 5
(Quaracchi, 1898) 408-49
John of Naples, Quaestiones variae Parisiis disputatae (Naples 1618)
John of Paris, De potestate regia et papali, F. Bleienstein, ed., and trans., fohannes
Q11idort von Paris. Ober koniglic11e und piipstliche Gewalt, (Stuttgart, 1969)
Las Casas, Bartolome de, Apologeticn historia sumaria, Vidal Abril Castell6 et al.,
eds., in Fray Bartolome de las Casas. Obras comp/etas, P. Castaneda Delgado ed.
6-8 (Madrid, 1992)
- - , Apologia, Angel Losada, ed., in Obras completas, 9 (Madrid, 1988)
- -, De regia potestate, J. Gonzalez Rodriguez and A. E. Perez Luiio, eds., in
Obras completas, 12 Madrid, 1990): 1-223
- -, De regia potestate, L. Pereiia et al., eds., (Madrid, 1969)
- - , De thesauris, Angel Losada, ed., in Obras completas, 11 (Madrid, 1992)
- - , De 11nico oocationis modo, P. Castaneda Delgado and A. Garda del Moral,
eds., in Obras comp/etas, 2 (Madrid, 1990)
- - , Historin de las lndias, M. Angel Medina et al., eds., in Obras comp/etas, 3- 5
(Madrid, 1994)
- - , Carta a los Dominicos de Chiapa y Guatemala, J. Perez de Tudela Bueso, ed.,
in Obras escogidas de Fray Bartolome de Las Casas, 5 (Madrid, 1958), 469-77
Locke, John, Two Treatises of Government, P. Laslett, ed. (Cambridge, 1967)
Mair, John, In qunrlum Sententiarum quaestiones 11tilissimae (Paris, 1519)
- -, foannes Maior in quarlum Sententiarum (Paris, 1509)
- -, In secu11dum Senlentiarum quaestiones (Paris, 1519)
Marsilius of Padua, Marsilii de Padua Defensor Pacis, ed. R. Scholz (Hanover, 1933)
- - , Marsilius of Padua. The Defender of the Peace, 2 vols., A. Gewirth, ed. and
trans. (New York, 1951-1956)
Marx, Karl, HZur Judenfrage," I. Taubert, ed., in Karl Marx Friedrich Engels Grsom·
tausgabe, 1 Abt., 2 (Berlin, 1982): 141-69
Mazzolini da Priero, Sylvestro, see Sylvester Prieras
Molina, L , Ludovici Molinae De justitin et jure (Cologne, 1759)
Monachus, Johannes, Glossa aurea (Paris, 1535)
Nicholas of Cusa, De co11corda11tia ratlmlica in Nicolai de Cusa opera om11ia, c.;. Kall1•11,
ed. 14 (Hamburg, 1963)
<)ckham, William 1 >I. 1\11 1•m11·1•1•''· in c :11ilMmi 1/1· ( >,.k/1am opera polilica, 11.S. ( lfO..r,
ed., 1 (Mandw!il•·r. 1117'1) no ·11>
- - , llrl'l•ilriq11111111 ,,,. ,,, 111111~1111 ty1111111/11', 111 It Sd10l7., t•d., Wilhrlm '""' <kA/111111
"'~ /'<lfili~d11·r I >mAf'I ,,,,,, .,.,,, ,,,,.,.,,.,,,,,,,,,,, ,,,. r•ri111·i1111/11 t.11m1111irn, (I A•lp7.IR.
11144 )
352 BIBLIOGRAPHY
- - -, De imperatorum et pontificum potestate, in R. Scholz, ed., Unbekannte kirche11-
politische Streitschriften aus der Zeit Ludwigs des Bayern (1327-1354), 2 (Rome,
1914)
- - -, Dialogus, in Monarchia S. Romani imperii, ed., M. Goldast, 2 (Frankfurt,
1614): 392-976
- - , Octo quaestiones de potestate papae, in Opera politica, H. S. OfAer, ed., 1 (Man-
chester, 1974): 1-217
---,Opus nonaginta dierum, in Opera politica, H. S. Offler, ed., 1-2 (Manchester,
1963-74): 287-858
- - - , Opera theologica, in Guillelmi de Ockham opera philosophica et theologica,
G. Gal et al., eds. 3-9 (Bonaventure, NY, 1967-86)
Odofredus, Praelectiones in Digest11m nouum (Lyons, 1552)
Parmensis, Bemardus, Glossa ordinaria ad Decretales in Deere/ales D. Gregorii IX cum
glossis, (Lyons, 1624)
Pufendorf, S., De jure naturae et gentium libri octo, J.B. Scott, ed., 2 vols. (Oxford,
1934). 1. A Photographic Reproductio11 of the Edition of 1688 2. A Tra11slation of tire
Text, by C. H. and W. A. Oldfather
- -, Of the Law of Nature and Nations, B. Kennett, trans. (London, 1729)
- --, Specimen controversiarum circa jus naturale ipsi n11per notarum (Uppsala,
1678)
Rufinus, Die Summa Decretorum des Magister Ruftnus, H . Singer, ed. (Paderborn,
1902)
Scotus, John Duns, Opus Oxoniense. Quaestiones in quartum /ibrum Sententiar111n, in
foannis Duns Scoti . .. opera omnia, L. Vives, ed., 18 (Paris, 1894)
Sepulveda, Jean Gines de, Democrates seg11ndo o De las ji1stas causas de la guerra
contra los Indios, Losada A., ~ - (Madrid, 1951)
Soto, Domingo de, De iustitia et iure (Salamanca, 1556)
Suarez, Francisco, De charitate, in Francisci Suarez . .. opera omnia, L. Vives, ed., 12
(Paris, 1858): 635-763
- -, De opere sex dierum, in Opera omnia, 3 (Paris, 1856): 1-447
- - - , De statu perfectionis. in Opera omnia 15 (Paris. 1859)
- - -, Defensio ftdei catholicae, in Opera omnia, 24 (Paris, 1859)
- - -, Tractatus de legibus ac Deo legislatore, in Opera omnia, 5 (Paris, 1856)
- - - , Tractatus de Iegibus ac Deo legislatore, L. Perei'ia et al., eds., 8 vols. (Madrid,
1971- )
Summenhart, C., De contractibus licit is et illicit is (Venice, 1580)
Sylvester Prieras. Summne Sylr>rstrinne (Venice, 1584)
Teutonicus, Johannes, Glo!'sa ordinarin ml l>t'Crt't11111 Gmti1mi in l">rcrrtum Gmti1111i . . .
urra cum Klossi$ (V<'niet'. Ififlll)
Vi tori,,, i:rnnd,.n1 dt•, c ·111111111·11111111111/ li11/111l1• 1I.- 111 ,,._.,. ( 111 f II. L't.>.'HJ llJH), frnx1111·11
t1•!oi dt n·l1·...-i1111,..• . V 1'4·11ti\11 .t1• ll1•11·1tl11. 1•d (M111lritl. l'l'i?)
BIBLIOG RAPHY 353
- - - , Francisco de Vitoria, Commenlaria a la secunda secundae de Santo Tomas, 6 vols.
V. Beltran de Heredia, ed. (Salamanca, 1932-34)
- -- , Obras de Francisco de Vitoria, T. Urdanoz, ed. (Madrid, 1960)
- - - , Political Writings, A. Pagden and J. Lawrence, eds. and trans. (Cambridge,
1991)
- -, Relectio de Indis, L. Perena and J.M. Perez Prendes eds. (Madrid, 1%7)
Wolff, Christian, lnstitutiones juris naturae et genti11m, M. Thomann, ed., in Christian
Wolff Gesammelte Werke, Abt. 2, 26 (Hildesheim, 1%9) (reprint of the 1750
edition)
Zabarella, Franciscus, Super quinq11e libris decretalium commentaria (Venice, 1602)
Zenzellinus de Cassanis, Glossa ordinaria ad Extrauagantes loannis XXll in Extraw-
ganles . .. D. loa11nis Papne XXI/ (Venice, 1583)
SECONDARY SoURCES
Abril Castello, V., " Vitoria-Las Casas, confrontacion y proyeccion," in C. Soria, ed.,
I diritti dell' uomo e la pace nel pensiero di Francisco de Vitoria e Bartolome de las
Casas (Milan, 1988), 155-72
---."Bartolome de las Casas, el ultimo communero," in Las Casas et la politiq11r
des droils de l'homme (Aix-en-Provence, 1976), 92-123
Adams, M.M., "The Structure of Ockham's Moral Theory," Franciscan Studies 4n
(1986): 1-34
Alberigo, G ., Chiesa conciliare. ldentita e significalo def conciliarismo (Brescia, 1981)
Andre-Vincent, P., Droit des lndiens et droeloppement en Amerique latine (Paris, lq'71)
- - -, " La concretisation de la notion classique de droit nature) a travers l'oeuvn•
de Las Casas," in Las Casas et In politique des droits de /'homme (Aix-en-
Provence, 1976), 203-13
Bandman, B., ed., Bioethics and Human Rights (Boston, 1979)
Barbeyrac, J., "An Historical and Critical Account of the Science of Morality," in
Samuel von Pufendorf, Of Ille Law of Nature and Nations, B. Kennett, trans.
(London, 1729)
Barry, N ., "The Concept of ' Nature' in Liberal Political Thought," Journal of Liber·
tarian Studies 8 (1986): 1-17
Bastit, M., Naissance de la loi modeme (Paris, 1990)
Benson, R.L., The Bishop-Elect: A Study in Mediroal E.cclesiastical Office (Princt•lon.
1%8)
- - and G. Constilhh•, 1'<1~., Rrrrni$."lmrr a11d Renewal in the Twelftlr Ce11t11ry (Cun·
bridgt'. M.1ss.. 1'1147)
Bt'fRl'r, N., Ri,i.:111.~: A J /1111111~'1•1. /•'' /'1'1•1•11' 1/mf,., A,\'t' (1 larmon&nvorth, 1<174)
lk·rlin, I., /"nm f!<~1111.• 1111I1/,..1111 (I hl11hl. 11ir11I)
lll·rn1.111. I I 1.. I 1111• 11111( Hr'1~•/11ll1•11 I /r,. / ,,, 111111/1111 1•/ llw Wl'.•lrru I ''.\'11/ l'111liti1111 (< ·,1111
h1hlK•'. M""" . l'IK I)
 r
354 BIBLIOGRAPHY
Bemheimer, R., Wild Men in the Middle Ages (Cambridge, Mass., 1952)
Berns, Walter, "The Constitution as Bill of Rights," in R.A. Goldwin and W. A.
Schambra, eds., How Does the Constitution Secure Rights? (Washington, 1985),
50-73
- -, In Defense of Liberal Democracy (Chicago, 1984)
Besselink, L., "The Impious Hypothesis Revisited," Grotiana ri.s. 9 (1988): 3-63
Black, A., Council and Commune. The Conciliar Movement and the Fifteenth-Century
Huitage (London, 1979)
- -, Guilds and Civil Society in European Political Thought from the Twelfth Century
to the Present (Ithaca, NY, 1984)
- -, "Society and the Individual from the Middle Ages to Rousseau: Philoso-
phy, Jurisprudence and Constitutional Theory," History of Political Thought 1
(1980): 146- 66
- -, "The Individual and Society," in J.H. Burns, ed., The Cambridge History of
Medieval Political Thought (Cambridge, 1988), 588-606
Blumenberg, H., Die Legitimitiit der Neuuit (Frankfurt, 1966)
Bobbio, N., Thomas Hobbes and the Natural Law Tradition, D. Gobetti, trans. (Chi-
c.ago, 1993)
Boehner, P., "Ockham's Political Ideas," in E.M. Buytaert, ed., Collected Articles on
Ockham (St. Bonaventure, NY, 1958), 442-68
Bozeman, A.B., "On the Relevance of Hugo Grotius and De Jure Belli et Pacis for
Our Times," Gratiana, n.s. 1 (1980): 53-64
Brett, A., Liberty, Right and Nature: The Language of lndiuidual Rights in Later Scholas-
tic Thought (Cambridge, 1997)
Broadie, A., The Circle of fohn Mair (Oxford, 1985)
Brooke, C.N.L., et al., eds., Church and Government in the Middle Ages (Cambridge.
1976)
Brown, C.O., Pastar and Laity in the Theology of Jean Gerson (Cambridge, 1987)
Buckle, S., Natural Law and the Theory of Property. Grotius to Hume (Oxford, 1991)
Bums, J.H., Lordship, Kingship and Empire. The Idea of Monarchy 1400-1525 (Oxford,
1992)
- -, "Po/ilia regalis et optima: The Political Ideas of John Mair, " History of Po-
litical Thought 2 (1981): 31-61
- -, ed., The Cambridge History of Medieval Political Thought (Cambridge,
1988)
Busa, R., ed., Index Thomisticus. Sectio II. Concordantia priora, 23 vols. (Stuttgart,
1974-75)
Carlen, C., ed., The Papal Encyclicals, 5 vols. (Ann Arbor, Ml, 1990)
Carlyle, R.W. and A.J. Ciulylc•, A 11i!'lt11rv 11{ Mrdirml 1'11litirnl Tl1r11r.v i11 tlll' Wt'SI,
6 vol!'. (EdinliurJ<h. l'JCl:l :lt1)
BIBl.IOC RAPH Y 355
Carro, Venancio D., La teologia et los te0logos-juristas espaiioles ante la conquista de
America, 2 vols. (Madrid, 1944)
- -, "The Spanish Theological-Juridical Renaissance and the Ideology of Bar-
tolome de las Casas," in J. Friede and B. Keen, eds., Bartolomt de Uis Casas in
History (DeKalb, m., 1971), 237-77
Castillo Lara, R., ed., Studia in honon'm eminentissimi Cardinalis Alphonsi M. Stickler
(Rome, 1992)
Chroust, A.H., "Hugo Grotius and the Scholastic Natural Law Tradition," The New
Scholasticism 17 (1943): 101-33
Clark, D.W., "Voluntarism and Rationalism in the Ethics of Ockham," Franciscan
Studies 31 (1971): 72-87
- - , "William ofOckham on Right Reason," Spew/um 48(1973): 13- 36
Coing, H., "Zur Eigentumslehre des Bartolus," Zeitschrift der Savigny-Stiftung fiir
Rechtsgeschichte (Rom. Ab.) 70 (1953): 348- 71
- -, et al., eds., Das subjecktive Redlt und der Rechtsschutz der Persiinlichkeit
(Frankfurt, 1959)
Coleman, }., " Dominium in Thirteenth and Fourteenth-Century Political Thought
and Its Seventeenth-Century Heirs: John of Paris and Locke," Political Stud-
its 33 (1985): 73-100
- , " Property and Poverty," in J.H . Bums, ed., Tire Cambridge History of Me-
-
dieVtll Political Thought (Cambridge, 1988), 607- 48
Comas, J., "Historical Reality and the Detractors of Las Casas," in Friede and
Keen, Bartolome de Las Casas, 487-537
Combes, A., jean Gerson, commentateur dionysien (Paris, 1940)
- -, La theologie mystique de Gerson, 2 vols. (Rome, l %3-64)
Composta, D., " II concetto di diritto nell' umanesimo giuridico di Francesco de Vi-
toria O .P.," in C. Soria, ed., J diritti dell' uomo t la pace net pensiero di Franctsco de
Vitoria e Bartolome de las Casas (Milan, 1988), 276-91
- -, "La 'moralis facultas' nella filosofia giuridica di F. Suarez," Salesianum 18
(1956): 476-97
- - , " La persona umana e i diritti soggetivi in prospectiva metafisica," lustitia
27 (1974): 42- 72
Condren, C., "Democracy and the Defensor Pads: On the English Language Tra-
dition of Marsilian Interpretation," II pensiero politico 13 (1980): 301-16
- - , "Rheto ric, Historiography and Political Theory: Some Aspects of the l'ov·
erty Conlmvt•rsy Rcconsidert'd," /011mal of Religious History 13 (1984): 15 :\4
Congar, Y., "Aspt•cls .... ·d(·si11l11gi')1tl'S d1· la q m•relle entre mendiants cl s~n1lil'Ts
dans la ~·cnrul1 · nuuth\ du Xl111• !til'd1• t'I h• d~hu t du XIVc-," Ard1itlf'S d 'l11st11irr
dodri1111/r ,., 1111111111,,. r/11 "'''""" llsr \t, ( l'lf•I): .1.'i l.'il
·- ," Om>tf 11111111111'""Kii."" 1111111tl•rn• lrnd ;11i l'I .1ppmlmri 1ft•lwt," H1·1•111• hr~
l1•riq1w ,f,.
1lr1•rl /11111,111• ~I t''11IUJir"I , 41 1 .,,. , ' ' ' ( l'tr;li) 2111 ~·1

356 BIBLIOGRAPHY
Cortese, E., La norma giuridic.a, 2 vols. (MjJan, 1962-64)
Courtenay, W.J., "Nominalism and Late Medieval Religion," in C. Trinkhaus and
Heiko A. Oberman, eds., The Pursuit of Holiness (Leiden, 1974), 26-59
- - -, uThe Dialectic of Divine Omnipotence" in id., Covenant and Causality in
Medieval Thought (London, 1984), IV, 1-37
Couvreur, G., Les pauures. Ont-ils des droits? (Paris, 1961)
Cover, R., "Obligation: A Jewish Jurisprudence of Social Order," Journal of Law and
Religion 5 (1987): 65-74
Cranston, M., Human Rights Today (London, 1962)
Crowe, M.B., The Changing Profile of the Natural I.Aw (The Hague, 1977)
Dabin, J., " Droit subjectif et subjectivisme juridique," Archives de philosophie du
droit 9 (1964): 17-35
- - , Le droit sul1jectif (Paris, 1952)
Damiata, M ., "Funzione e concetto delta poverta evangelica in Marsilio da
Padova," Medioevo 6 (1980): 411-30
- - , Guglielmo d'Oclrham: Puvertil e potere, 2 vols. (Florence, 1978-79)
Davis, 0.8., The Problem ofSlavery in Western Culture (Ithaca, NY, 1966)
Dawson, J.D., "Richard FitzRalph and the Fourteenth-Century Poverty Controver-
sies," /ounuzl of Ecclesiastical History 34 (1983): 315-44
Deckers, D., Gerechtigkeit und Recht. Eine historisch-kritische Untersuchung der Ge-
rechtiskeitslehre des Francisco de Vitoria (1483-1546) (Freiburg, 1991)
Delorme, F., "Question de P. J. Olivi 'Quid ponat ius vel dominium' ou encore ' De
signis voluntariis'," Antonianum 20 (1945): 309- 30
Deuringer, I<., Probleme der CAritas in der Schule von Salamanca (Freiburg im Breis-
gau, 1959)
Dolcini, C., Crisi di poteri e politologia in crisi (Bologna, 1988)
Donnelly, J., Universal Human Rights in Theory and Practice (Ithaca, NY, 1989)
Dover, K.J., Greek Popular Morality in the Time of Plato and Aristotle (Berkeley and
Los Angeles, 1974)
Dufour, A., Droits de /'homme, droit naturtl et histoire (Paris, 1991)
Dumont, L., Essays on Individualism. Modern Ideology in Anthropological Perspective
(Chicago, 1986)
Dworkin, R., Taking Rights Seriously (Cambridge, Mass., 1977)
Edwards, C.S., Hugo Grotius. The Miracle of Holland (Chicago, 1981)
Ellis, D., "Europeans and the Rise and Fall of African Slavery: An Interpretation,"
American Historical Review 98 (1993): 1399-1423
Eschmann, l.T., "A lbomistic Glossary on thl' Principle of the Preeminence of a
Common Good," Mediaroal Studirs 5 (1943): 123- 65
Fet>n!'ltra, R., " l~·r Eig1•n1t1m11ht•1<rifl lwi I lugo ( ;ro1iw1 im 1.il'hl l'illiKt'r miltt•lalt-
lkht>r untl icpitl111-ht1l"11llk1•r l.)lwll1•11," 111 ( >. 1'4-lm•nclic c•I 111 . ••cl'< . 1'1·•tsdirifl filr
l'rn11.'. Win1d1rr, (l :mt111g1·11. 11014). 11~1 14
r
BtRLIOGRAPHY 357
- -, "Quelques remarques, sur les sources utilisees par Grotius dans ses
travaux de droit naturel,'' in R. Feenstra et al., eds., The World of Hugo Grotius
(1583- 1645) (Amsterdam, 1984), 65-81
Feinberg, J., "Duties, Rights. and Oaims," American Philosophical Quarterly 3 (1966):
137-44
- -, "The Nature and Value of Rights," Journal of Value Inquiry 4 (1970):
243-57
Fernandez-Santamaria, J.A., The State, War and Peace. Spanish Political Thought in the
Renaissance 1516-1559 (Cambridge, 1977)
Fichter, J.H., Man of Spain, Francis Suarez (New York, 1942)
Fikentscher, W., Modes of Thought in l..aw and Politics (Berkeley, 1988)
Finnis, J.• Natural Law and Natural Rights (Oxford, 1980)
.
; Folgado, A., Evoluci6n hislorica del concepto del derecho subjectivo (Madrid, 1960)
Forbes, D., Hume's Philosophical Politics (Cambridge, 1975)
r.
Franklin, J., /ohn Locke and the Theory of Sovereignty (Cambridge, 1978)
Freppert, L., The Basis of Morality According to William of Ockham (Chicago, 1988)
Fried, J. and B. Keen, eds., Bartolome de las Casas in History (DeKalb, Ill., 1971)
Gagner, S., "Vorbemerkungen zum Thema 'Dominium' bei Ockham," Miscellanea
mediaf'Vfllia 9 (1974): 293-327
Garcia, A., Thomas Hobbes: Bibliographie Internationale de 1620 a 1986 (Caen, 1986)
Gan:ia Garcia, A., Iglesia, Sociedad y Derecho (Salamanca, 1985)
Garrett, W., "Religion, Law, and the Human Condition," Sociological Analysis 47
(1987): 1-34
Gellinek, C., "Book Review," Grotiatta, n.s. 3 (1982): 77
Gewirth, A., "Is Cultural Pluralism Relevant to Moral Knowledge?" Social Phi-
losophy and Policy 11(1994): 22-43
- -, Marsilius of Padua. The Defender of the Pe.ace, 2 vols. (New York, 1951-56)
- - , ReaS<Jn and Morality (Chicago, 1978)
Gierke, Otto von, Das deutsche Genossenschaftsrecht, 4 vols. (Berlin, 1868-1914)
- - , Political Theories of the Middle Age, F.W. Maitland, trans. (Cambridge, 1900)
Gillet, P., I.A personnalite juridique en droit ecclisiastique (Malines, 1927)
Glenn, G.D., "Inalienable Rights and Locke's Argument for Limited Government:
Political Implications of a Right to Suicide," Journal of Politics 46 (1984): 80- IO.')
Golding, M.P., "The C'onn'pl of Righi!!: A Historical Sketch," in B. Bandm;in 1•d .•
Bioethics a11rl 11111111111 1<(-<hlN (Urn1ton. 1978), 44- 49
Goldwin, R.A. .mcl WA Sd1a111hra. 1•el11 . 11111111 lclt'S the Constitution Srrnre Ri~/1tsl
(WashinKlnn. i'IH'i) '
(:ray, ).• l.i/lt'r.1/i~m ( Ml1111""I '"""· I''"''l
<;n-c•n, T. I I.• I .rr l 11rr111111 llit I'1 1111 l/•lr• 11/ I 'e1/111, 11/ I >I•/ l_'\11111111 (I .ontlon, 1•141 )
C;m11.'I, <' I 1,,., H,n·/111111 ,/,., l'(tll111lr It,,.., '"""II
358 BIBLIOGRAPHY
Grossi, P., "Usus facti. La nozione di proprieta nella inaugurazione dell' eta
nuova," Quaderni Fiorentini per la storw del pensiero giuridico modemo 1 (1972):
287- 355
- -, ed., La seconda scolastica nella formazione de/ diritto privato moderno (Milan,
1973)
Grunebaum, J.O., Private Ownership (New York, 1957)
Haakonssen, K., "From Natural Law to the Rights of Man: A European Perspec-
tive on American Debates," in M.J. Lacey and K. Haakonssen, eds., A Culture
of Rights (Cambridge, 1991), 19-51
- - , "Hugo Grotius and the History of Political Thought." Political Tl1eory 13
(1985): 239-65
Habermas, J., Theory and Practice, J. Viertel, trans. (Boston, 1974)
Haggenmacher, P.• Grotius et la doctrine de la guerre juste (Paris, 1983)
Hamilton, B., Political Thought in Sixteenth-Century Spain (Oxford, 1963)
Hanke, L., All Mankind is One (DeKalb, IL, 1974)
- -, Aristotle and the American Indians (Chicago, 1959)
- - . "La fama de fray Bartolome de las Casas," in £studios Lascasianos (Seville,
1966), l-19
- - , The Spanish Struggle for Justice in the Conquest of America (Boston, 1%5)
Harding, A.L., HPolitical Liberty in the Middle Ages," Speculum 55 (1980):
423-43
Hart, H.L.A., "Are There Any Natural Rights?" Philosophical Review 64 (1955):
175-91
- -, "Bentham on Legal Rights," in Oxford Essays in Jurisprudence, Second Series,
A.W.B. Simpson, ed., (Oxford, 1973) 171-91 (reprinted in David Lyons ed.,
Rights)
Helm, P., "Introduction," in id., ed., Divine Commands and Morality (Oxford, 1951)
Henley, J.A., "Theology and the Basis of Human Rights," Scottish Journal of The-
ology 39 (1986): 361-78
Hering, H.M., "De iure subjectivo sumpto apud sanctum Thomam," Angelic11m 16
(1939): 295-97
Hohfeld, W.N., Fundamental Legal Conceptions (New Haven, 1919)
Horowitz, M.C., "The Stoic Synthesis of the Idea of Natural Law in Man: Four
Themes," Journal of the History of Ideas 35 (1974): 3-16
Hudson, W.D., ed., The ls-Ought Question (Londo n, 1%9)
Iaruiarone, A., "Genesis del pensiamento colonial en Francisco de Vitoria," in
L. Perei'la and J. M. Perez Prendes, eds., rranci~co de Viloria. Rrlectio de llldi~
(Madrid, 1%7), XXXl- XLI
Jaffa, If. American Omsrrr,,1ti~m 11111111"· Amt'Til'aH 1"11111111i11,it (lh1rham, NC, 141-W)
JMIOI, c;., " (A.'S iiki"H pollthtll''" .... S111m•1 .. , 11• pouvoir .1h:ml11," Ar· l1it•1'S 1fr ,,,,;.
/11s1111l1ir I H ( 111"11). h4 I 07
BIBLIOCRAPHY 359
Jones, J.W., The Law and Legal Theory of the Greeks (Aalen, 1977)
Junghans, H ., Ockham im Lichte der ne11ren Forschung (Berlin, 1968)
Justenhoven, H.-G., Fmncisco de Vitoria zu Krieg und Frieden (Cologne, 1991)
Kamenka, E. and A.E. Tay, eds., Human Rights (New York, 1978)
Kantorowicz, E.. Tiie King's Two Bodies. A Study in Medieval Political Theology
(Princeton, 1957)
Kelley, D.R. and B.G. Smith, eds., What ls Property? (Cambridge, 1994)
Kilcullen, J., "Natural Law and Will in Ockham," History of Philosophy Yearbook 1
(1993): 1-25
Kolmel, W., "Das Naturrecht bei Wilhelm Ockham," Franziskanische Studien 35
(1953): 39- 85
- - , Wilhelm Ockham und sein kirchenpolitischen Schriften (Essen, 1942)
Kuttner, S., "Gratian and Plato," in C.N.L. Brooke et al., eds., Church and Govern-
ment i11 the Middle Ages (Cambridge, 1976), 93-118
- - , Repertorium der Kanonistik, 1140-1234 (Vatican City, 1937)
LaCapra, D., "Intellectual History and Defining the Present as ' Postmodern'," in
I. Hassan and S. Hassan, eds., lnnowtion/Renovation. New PerspectiVts on the
Huma11ities (Madison, WI, 1983)
Lacey M.T. and K. Haakonssen, eds., A Culture of Rights (Cambridge, 1991)
Lachance, L., Le concept de droit selon Aristote et S. Thomas, 2d ed. (Ottawa, 1948)
Lagarde, Georges de, " lndividualisme et corporatisme au moyen age," in L'or-
ganisation corporative du moyen aged la fin de l'Ancien Regime (Louvain, 1937),
3-59
- -, La naissance de I' esprit /aique au dee/in du moyen dge, 6 vols. (Paris, 1934-46);
2nd ed., S vols. (Paris, 1956- 70)
Lambert, M.O., Franciscan Poverty. The Doctrine of the Absolute Poverty ofChrist and
the Apostles in the Franciscan Order, 1210-1323 (London, 1961)
Laqueur, W. and B. Rubin, eds., The H11man Rights Reader (New York, 1979)
LeGoff, J., La naissancedu Purgatoire (Paris, 1981)
Lenherr, T., "Der Begriff 'executio' in der Summa Decretorum des Huguccio,"
Archiv fur katholisches Kirchenrecht 150 (1981): 5-45, 361-420
Levy, E., West Roma11 Vulgar Law (Philadelphia, 1951)
Lewis, E., "Organic Tendencies in Medieval Political Thought," American Politital
Science Review 32 (1938): 849-76
Lomasky, L.E., PerS<ms, Rixlit~. and the Moral Community (Oxford, 1987)
Lottin, 0 ., l.e dmil 1111t11rrl .-Ito. ~11i11t Tlim1111s rt ses prldecesseurs, 2d ed. (Aru~t'!I,
1931)
Loudl'n, IU .. , " l<IHhl11 l11fnl11nll11n 1md tlw lmpovc•rishml'nt of Moral Thl'ory,••-
/011rnnl 11/ V11l111' f111111lt1J I'/ ( lllK I) K"/ lllJ
I .twl'j11y, /\ .CI 11111 I t ; llt11U, I\ / l11t ""'""''" v rlt'1111 y 11/ l'rtm1ti111~111 111111 Hrf11tf'tl ltlr11.•
(llnlt\111111r, I''\'\)
360 BIBLIOGRAPHY
Luhmann, N ., "Am Anfang war kein Unrecht," in id., Gesellschaftsstruktur und Se-
mantik. Studien zur Wissenssoziologie der modernen Gesellschaft 3 (Frankfurt,
1989): 11-64
- -, "Subjective Rechte," in Gesellschaftsstruktur und Semantik. 2 (Frankfurt,
1981): 45- 104
Lyons, 0 ., "Th.e Correlativity of Rights and Duties," Nous 4 (1970): 45-55
- - , ed., Rights (Belmont, 1978)
Macfarlane, A., The Origins of English Individualism (Cambridge, 1979)
Machan, T.R., Human Rights and Human Liberties (Chicago, 1975), 248
- - , Individuals and Their Rights (LaSalle, 1989)
Macintyre, A., After Virtue, 2d ed. (Notre Dame, 1984)
MacPherson, C.B., The Political Theory of Possessive Individualism: Hobbes and Locke
(Oxford, 1962)
Mahn-Lot, M., Bartolome de las Casas et le droit des lndiens (Paris, 1982)
Maine, Sir Henry Sumner, Dissertation on Early Law and Custom (New York, 1883)
Malachowski, A.R., ed., Reading Rorty. Critical Responses to Philowphy nnd the Mirror
of Nature (and Beyond) (Oxford, 1990)
Maritain, J., Les droits de l'homme et la loi naturelle (Paris, 1945)
Marrone, J., 'The Absolute and Ordained Powers of the Pope: An Unedited Text of
Henry of Ghent," Mediaeval Studies 36 (1974): 7-22
Martin, G., "1st Ockhams Relationstheorie Nominalismus?" Franziskanisclte Studien
32 (1950): 31-49
Martin, R. and J.W. Nickel, "A Bibliography on the Nature and Foundations of
Rights 1947-1977," Political Theory 6 (1978): 395-413
- -, "Recent Work on the Concept of Rights," American Philosophical Quarterly
17 (1980): 165-80
Mattingly, G., Renaissance Diplomacy (Chicago, 1955)
McCloskey, H .J., "The Right to Life," Mind 84 (1975): 403-25
McDonnel, K., "Does William of Ockham Have a Theory of Natural Law?" Fran-
ciscan Studies 34 (1974): 383-92
McGrade, A.S., "Ockham and the Birth or Individual Rights," in B. Tierney and P.
Linehan, eds., Authority and Power. Studies on Medieval Law and Government
Presented to Walter Ullmann (Cambridge, 1980), 149-65
- -, The Political Thought of William of Ockham: Personal and Institutional Pri11-
ciples (Cambridge, 1974)
McKeon, R.,"The Development o( the Concept of Property in Political Philoso-
phy," Ethics 48 (1938): 297-366
Melden, A.I., Rights in Moral liws (Berkl'lt'y, I 9AA)
Melloni, A .. " Williftm of< kkh11111'H< 'ritli1111• ol lnnc1<-.·nt IV," fri111i-i.~n111 5/rufirs 46
(11186): I 61 - 21l:l
BIBLIOGRAPHY 361
Menendez Pidal. R., El padre Uls Casas. Su doble personalidad (Madrid, 1963)
Meuthen, E., Das Basler K?n.zil als Forschungsproblem der europiiischtm Geschichte
(Opladen, 1985) (=Rhetmsch-Westfalische Akadamie der Wissenschaften Vor-
trage G274)
Michaud-Quantin, P., Universitas. Erpressions du mouwment communautaire dans le
moyen-1lge latin (Paris, 1970)
Miethke, J., Ockhams Weg zur Sozialphilosophie (Berlin, 1969)
Miller, F., Nature, Justice, and Right in Aristotle's Politics (Oxford, 1995).
Minogue, ~·· "The History of the Idea of Human Rights," in w. Laqueur and
B. Rubin, eds., The Human Rights Reader (New York, 1979), 3-17
Monahan, A.P., From Personal Dulies Towards Personal Rights (Montreal, 1994)
Morrall, J.B., Gerson and the Great Schism (Manchester, 1960)
- -•. "Some ":otes o~ a Recent Interpretation of William of Ockham's Political
Philosophy, FranaSCJJn Studies 9 (1949): 335-69
Mo~s, C;; "Individualism in Twelfth-Century Religion. Some Further Reflec-
tions, Journal of Ecclesiastical History 31 (1980): 1-17, 195-206
- -. The Discovery of the Individual, 1050- 1200 (London, I 9n)
Muldoon, J.. Popes, Lawyers, and Infidels: The Church and the Non-Christian World
(Philadelphia, 1979)
- - , The Americas in the World Order (Philadelphia, 1994)
- , "Th~ Contribution of the Medieval Canon Lawyers to the Formation of
International Law," Traditio 28 (19n): 483-97
Norr, K., "Zu~. Frag~ des subjektive Rechts in der mittelalterlichen Recht!;wis-
senschaft, m Dieter Medicus et al .. eds., Ftstschrift for Hermann Lange (Stutt -
gart, 1992), 193- 204
Oakley, F., "Figgis, Constance, and th e o·ivmes
· o( p ans,
· " American Histt1rinrl
Review 75 (1969): 365- 86
- , "Gerson and d 'Ailly: An Admonition," Speculum 40 (1965): 74-83
~· "J~cobean Political Theology: The Absolute and Ordinary Powers of tlw
King, /oumal of the History of Ideas 29 (1968): 323- 46
- - , Natural Uiw, Conciliarism and Consent in the Late Middle Ages (London, 1984)
- -, " Natural La".", the Corpus Mysticum, and Consent in Conciliar Thought
from John of Pans to Mathias Ugonius," Speculum 56 (1981): 786- 810
- - , Omnipotmce, Covenant, and Order (Ithaca, NY, 1984)
- - •. "On the_ Road from Constance to 1688: The Political Thought of John
Ma1or •md <••'<>r~c' f111r hanan," fournal of British Studies t (1962): J- 31
Oakley, J.. " luhn :'0 (11 •'"" Fr.mcis,·.m lnnon•nn•," Franciscan StudiPS 46 (19M)'
217- 26 . .
OfX'rman: I tA • 11ir I''" r'f'•f 11/ I 11f,. M,.dlri~rf I f1,.11l11x11· <:Ol1rirl Ric•( a11d IJ1tr Mc•1lirml
Nt1111mal1!trt1 (t '11111li1 hlMtt. M""" . l'H1 I)
362 BIBLIOGRAPHY
Offler, H.S., "1be 'Influence' of Ockham's Political Thinking: the First Cen~;: in
w. Vossenkuhl and R. Schonberger, eds., Die Gegenwart Ockhams (Wemhe1m,
1990), 338-65
- - "The Three Modes of Natural Law in Ockharn: A Revision of the Text,"
Fr~nciscan Studies 37 (1977): 207- 18
O'Gonnan, E., "Lewis Hanke on the Spanish Struggle for Justice in the Conquest
of America," Hispanic American Historical Review 29 (1949): 563- 71
Oliger, L ., "Fr. Bonagratia de. Bergamo ~t eius Tr~cta~s de Christi ~t aposto-
lorum paupertate," Arch1vum Franc1scanum htStoncum 22 (1929). 292-335,
487-511
Ostwald, M., Nomos and the Beginnings of Athenian Democracy (Oxford, 1969)
Ott, H., "Zur Wirtschaftsethik des Konrad Summenhart," Vierteljahrschrift fiir
Sozial-und Wirtschaftsgeschichte 53 (1966): 1-26
Otte, G., Das Privatrecht bei Francisco de Vitoria (Cologne, 1964)
Ozment, S., Homo Spiritualis (Leiden, 1969)
- -, "The University and the Church. Patterns of Reform in Jean Gerson," Me-·
dievalia et Humanistica, n.s.l (1970): 111-26
Pagden, A., "Rethinking the Linguistic Tum: Current Anxieties in Intellectual His-
tory," Journal of the History of Ideas 49 (1988): 519-29
- -, The Fall of Natural Man (Cambridge, 1982)
_ _ , <!J., The Languages of Political Theory in Early-Modern Europe (Cambridge.
1987)
Pangle, T., The Spirit of Modern Republicanism (Chicago, 1988)
Pascoe, L., Jean Gerson: Principles of Church Reform (Leiden, 1973)
- -, "Law and Evangelical Liberty in the Thought of Jean Gerson," in Proc_ee~­
ings of the Sixth International Congress of Medieval Canon Law. Monumenta 1uns
canonici, Series C: Subsidia, 7 (Vatican City, 1985): 351-61
Pateman, C., The Sexual Contract (Stanford, 1988)
Patterson, L., "On the Margin: Postmodemism, Ironic History, and Medieval Stud-
ies," Speculum 65 (1990): 87- 108
Pennington, K., "Bartolome de Las Casas and the Tradition of Medieval Law,"
Church History 39 (1970): 149-61
- - , Pope and Bishops. The Papal Monarchy in the Twelfth and Thirteenth Centuries
(Philadelphia, 1984)
- - The Prince and the Law (Berkeley, 1993)
Penn~k. J.R and K. Baier, eds., Human Riglrls: Nomos XXll (New York, 1981)
Piaia, G., Marsilio de Padaua nelfa riforma e nelfa contrariforma (Padua, 1977)
Plamenatz, J.P., Consent, Freedom and Political Ohli!{atiorr (Oxford, 19:18)
Pocock, J.G.A., "The Concepl of lanKUl'l~l' and tlw mftil•r d'hi~toric_n_: So~l' Con·
sidcrations on Prnl"lkt•," In A l'11Kdt•n, t'tl., Tlrr I 1111,1./1111,t.11'" of 1'11/tl1rnl 1 ltr11r_11111
t:nrl_v M1"Nlrn1 /:11m1ir (l ·.1111hrhlK•'. l'IH7), 1•1 :lH
BIBLIOGRAPHY 363
Pollock, F. and F.W. Maitland, The History of English Law, 2 vols., 2d ed. (Cam-
bridge, 1898)
Post, G., Studies in Medieval Legal Thought (Princeton, 1%4)
Poste, E., Elements of Roman Law by Caius (Oxford, 1890)
Posthumus Meyjes, G.H.M., Jean Gerson, zijn kerkpolitik en ecclesiologie ('s-Graven-
hage, 1963)
Previte-Orton, C. W., The DefenS<Jr Pacis of Marsilius of Padua (Cambridge, 1928)
Pugliese, G., '"Res corporales', 'res incorporales' e ii problema del diritto sogge-
tivo," Studi in onore di Vincenzo Arangio-Ruiz 3 (Naples, 1954): 223-60
Quillet, J., IA philosophie politique de Marsile de Padoue (Paris, 1970)
Rapaczynski, A ., Nature and Politics (Ithaca, NY, 1987)
Raphael, D.D., "Human Rights, Old and New," in id., ed., Political Theory and the
Riglrts of Man (Bloomington, 1%7), 54-67
Rasmussen, D.B. and D.J. den Uyl. Liberty and Nature. An Aristotelian Defense of
Uberal Order (LaSalle, 1991)
Recasens Siches, L., La filosofia de! derecho de Francisco Suarez (Mexico City, 1947)
Regis, E., ed., Gewirth's Ethical Rationalism: Critical Essays With a Reply by Alan
Gewirlh (Chicago, 1984)
Reid, C.J. "The Canonistic Contribution to the Western Rights Tradition: An His-
torical Inquiry," Boston College Law Review 33 (1991 ): 37-92
Roensch, F.J., Early Tlromislic School (Dubuque, 1964)
Rommen, H., Die Staatslehre des Franz Suarez (Munchen-Gladbach, 1926)
- -, "The Geneology of Natural Rights," Thought 29 (1954): 403-25
- -, The Natural Law. A Study in Legal and Social History and Philosophy (St.
Louis, 1947)
Rorty, R., ''The Priority of Democracy to Philosophy," in A.R. Malachowski, ed.,
Reading Rorty. Critical Responses to Philosophy and the Mirror of Nature (and
Beyond) (Oxford, 1990), 279-302
Rosenbaum, A.S., ed., Philosophy of Human Rights (Westport, CT, 1980)
Roshwald, M., "The Concept of Human Rights," Philosophy and Phenomenological
Research 19 (1958-59): 354-79
Ryan, A., Property (Minneapolis, 1987)
St. Leger, J., The "Etiamsi daremusn of Hugo Grotius. A Study in the Origins of lutrr-
national Law (Rome, 1962)
Samuel, G., " Epi~temology, Propaganda and Roman Law: Some Reflection<1 on th1•
History of tht• Suhj('divc• Right," /mirnal a/ Legal History 10 (1989): 161- 79
Savigny, F.C. vnn, SV11lr1111ft'~ lir11l1.~ru IWmisdrrn Rrc11ts (Berlin, 1840)
Saxonhousc.•, A W , W11111ru 111 tlir lll11l1•rv 11/ l 1111iliml Thought. Anrirnt Grrrcr 111
Mad1inrir/11 (Nrw Yorio, l'IH'\)
S<·hol1, R., Wi/11rl111 '"'" I 1, Atr1tt" 1tl1 r~•/111•• t1rt I ,,.,,A,.r 1111.I .~ri11 llrr1iil111111ium 1lr l''lnn
t"''" 1111111111/n• (~ll11llM-'t I, I UU)
364 BIBLIOGRAPHY
Schwarz, R., "Circa naturam iuris subiectivi," Periodica de re morali canonica litur-
gica 69 (1980): 191-200
Shapiro, I., " Realism in the Study of the History of ldeas,H History of Political
Thought 3 (1982): 535-78
- - , The Evolution of Rights in Liberal Theory (Cambridge, 1986)
Sigmund, P., "The Influence of Marsilius on Fifteenth-Century ConciHarism," four"'
nal of the History of Ideas 23 (1962): 393-402
Skinner, Q., The Foundations of Modern Political Thought, 2 vols. (Cambridge,
1978)
Sommerville, J.P., "From Suarez to Filmer: A Reappraisal," Historical Journal 25
(1982): 525-40
Spiecs, K.E., "The Ecclesiastical Poverty Theory of Marsilius of Padua. Sources
and Significance," II pensiero politico 10 (1977): 5-21
Stein, P., " Donellus and the Origins of the Modern Civil Law," in J.A. Ankum
et al., eds., Melanges Felix Wubbe (Fribourg, 1993), 429-52
Stickler, A., "Imperator vicarius papae," Mitteilungen des lnstituts Jilr Oesterreichis-
che Gesdrichtsforschung 62 (1954): 165-212
Strauss, L., Natural Right and History (Chicago, 1953)
Stiimer, W., Peccatum und Potestas (Sigmaringen, 1987)
Sumner, L.W., The Moral Foundation of Rights (Oxford, 1987)
Tabarroni, A., Paupertas Christi et apostolorum. L'ideale francescano in discussione
(1322-1324) (Rome, 1990)
Tarello, G., "Profili giuridici della questione della poverta nel Francescanesimo
prima di Ockham," Universita degli studi di Genova. Annali della Jaco/ta di
giurisprudenza 3 (1964): 338-448
Thomson, J.j., The Realm of Rights (Cambridge, Mass., 1990)
Tierney, B., "Aristotle and the American Indians-Again. Two Critical Discus-
sions," Cristinnesimo nella storia 12 (1991): 295-322
- -, "Conciliarism, Corporatism, and Individualism. The Doctrine of Sub-
jective Rights in Gerson," Cristinnesimo nella storia 9 (1988): 81- 110
- - , Foundations of the Conciliar Theory (Cambridge, 1955)
- -, "Hierarchy, Consent, and the Western Tradition," Political Theory 15 (1987):
646-52
- --, "lus dictum est a iure possidendo: Law and Rights in Decretales 5.40.12," in
O. Wood, ed., Church and Sovereignty, c. 590-1915: Essays in Honour of Michael
Wilks (Oxford, 1991), 457-66
- -, "Marsilius on Rights," Journal of the History of ldra~ 5..'l ( JqqJ): :l- 17
---,Medieval Poor Law (Berkeley and Los An~dt•s, 1959)
- - , "Natu ral I.aw nm.I Canon I A1W in< kkham'!I l>i11/o,'<11.~ ." in J.<;. Row<>, t•d .,
As1H'cts of 111t1• Mrili1•1111/ C111•t'rm111'11f ""'' Sod.-11(. /:11.'ilr_y11
(foronto, l'IHt1), :1 2-t
BIBLIOGRAPHY 365
- -, " Natural Rights in the Thirteenth Century. A Quaestio of Henry of Ghent,"
Speculum 67 (1992): 58-68
- -, "Ockham, the Conciliar Theory and the Canonists," Journal of the History of
Ideas, 15 (1954): 40-70
- -, Origins of Papal Infallibility, 1150-1350, 2d ed. (Leiden, 1989)
-.. - -, Religion, Law, and the Growth of Constitutional Thought, 1150-1650 (Cam-
bridge, 1982)
·' - - -, "Religious Rights: An Historical Perspective," in]. Witte, Jr. and J. van der
Vyver, eds., Religious Human Rights in Global Perspective: Religious Perspectives
(The Hague, 1996), 17-45
- -, "Tuck on Rights: Some Medieval Problems," History of Political Thought 6
(1983): 429- 41
- -, "Villey, Ockham, and the Origin of Natural Rights," inJ. Witte, Jr., and F.S.
Alexander, eds., The Weightier Matters of the Law: Essays on Law and Religion
(Atlanta, 1988), 1- 31
- - and P. Linehan, eds., Authority and Por~r. Studies on Medieval Law and Gov-
ernment Presented to Walter Ullmann (Cambridge, 1980)
Tocco, F., La quistione della poverta net secolo XIV (Naples, 1910)
Tuck, R., "Grotius, Cameades and Hobbes," Gratiana, n.s. 4 (1983): 43-62
- - , "Grotius and Selden," in J. H . Burns, ed., The Cllmbridge History of Political
Thought, 1450-1700 (Cambridge, 1991), 499-529
- -, Natural Rights Theories. Their Origin and Development (Cambridge, 1979)
- - , Philosopl1yand Gouernment 1572- 1651 (Cambridge,1993)
- - , 'The ' Modem' Theory of Natural Law," in A. Pagden, ed., The umguagei; of
Political Tlreory in Early-Modern Europe (Cambridge, 1987), 99-119
Tully, J., A Discoime on Property. John Locke and His Adversaries (Cambridge, 1980)
Turley, T., "John XXIJ and the Franciscans: A Reappraisal," in J.R. Sweeney and
S. Chodorow, eds., Popes, Teachers, and unon Law in the Middle Ages (Ithaca,
NY, 1989), 74-88
Ullman, S., Semantics (New York, 1%2)
Ullmann, W., A History of Political Thought. The Middle Ages (Harmondsworth,
1970)
van der Vyver, J., "The Doctrine of Private-Law Rights," in S. A. Straus.-; f'tl.,
H11ldigu11gsbundel vir W. A. foubert (Durban, 1988), 201-46
Veraja, F., Lt orixini delln contrm1rrsia teoloxica sul contralto di censo nrl X1ll $1•cfllo
(Rome, 1%0)
Verbekt>, G ., TJ,,. t'rr.~1·111 ·1· 11/ Sl1111·1!<m ;,, M1·1li,.,.,1/ Tl111111~hl (Washington, D .C , 1Wl1)
Villey, M., " /\hn\x•\ du tlmll 1111t11rt'I d11ro!'li•111r ,"Arr11i1>rs dr plril11tte1plrir r/11 11mil t>
(1%1): 27 71
l'ri'.~l'llfl'1f l11 /. ~ f J1111lrr , " Hc.•111'111111 rl 1., 1l111ll 111th11cil 1 l.- 1u11t11u·:· /lrd1il't'.~ <Ir 11Jii11J.•1•1•l1il' 1/111lr1•il 17
(1472): 421 11
366 BIBLIOGRAPHY BIBLIOGRAP HY 367
- - , "Bible et philosophie grero-romaine de Saint Thomas au droit modeme," - -, Privatrechtsgeschichte der Neuzeit, 2d ed. (Gottingen, 1967)
Archives de philoscphie du droit 18 (1973): TJ-57 Wilenius, R., The Social and Political Theory of Francisco Suarez (Helsinki, 1963)
- - -, Critique fh la pensk juridique moderne (douu autres essais) (Paris, 1969) Wilks, M ., The Problem of Suvereignty in the I.Ater Middle Ages (Cambridge, 1963)
- - - , "Droit subjectif et subjectivisme juridique," Arc.hives de philoscphie du droit
Wohlmuth, J., "Konziliarismus und Verfassing der Kirche," Concilium 19 (1983):
9 (1964): 17-35 522-26
- - , "Du sens de I' expression jus in re en droit romain classique," in Melanges
Wolf, E., Das Problem der Natu"echtslehre, 3d ed. (Karlsruhe, 1964)
Fernand de Visscher, IJ. Revue internationale des droits de l'antiquite 2 (1949):
417-36 Wulf, M . de, "L' individu et le groupe dans la scolastique du Xllle siecle," Revue
neoscolastique de philosophie 22 (1920): 341-57
- -, Ui formation de lo pens« juridique moderne, 4th ed. (Paris, 1975)
Yolton, J.S. and J.W. Yolton, John Locke. A Reference Guide (Boston, 1985)
- - - , " La genese du droit subjectif chez Guillaume d'Occam," Archives de plti-
losophie du droit 9 (1964): 97-127 Zuckerman, C., "The Relationship of Theories of Universals to Theories of Church
Government in the Middle Ages: A Critique of Previous Views," fournal of
- - , Le~ d'histoire de la philosophie du droit (Paris, 1957)
the History of Ideas 35 (1973): 579- 90
- - , Les droits de l'homme et la Joi naturelle (Paris, 1945)
- -, Le droit et les droits de l'homme (Paris, 1983)
- -, "Le 'jus in re' du droit romain classique au droit modeme," in Conferences
Jaites a l'Jnstitut de Droit Romain en 1947 (Paris, 1950), 187-225
- - , Philosophie du Droit: 1. Dejinilions et fins du droit, 3d ed. (Paris, 1982)
- -, Philosophie du Droit: 2. Les moyens du droit, 2d ed. (Paris, 1984)
- - , "Problematique des droits de l'homme," in Uis Casas et la politique des droits
de l'homme (AU<-en-Provence, 1976), 369-73
---,Recherches sur la littirature didactique du droit romain (Paris, 1946)
- -, "Saint Thomas dans l'histoire des sources," in Etudes d'histoire du droit
canonique dediks a Gabriel le Bras, 2 vols. (Paris, 1965), 1:355-95
- -, Seize essais de philosophie du droit (Paris, 1969)
- - , "Suum jus cuique tribuens," in Studi in onore di Pietro de Francisci, 4 vols.
(Milan, 1956), 2:361-71
- - , "Travaux recents sur les droits de l'homme," Archives de philosophie du droit
26 (1981): 411- 18
- - and G. Kalinowski, " La mobilite du droit naturel chez Aristote et Thomas
d 'Aquin," Archives de philoscphie du droit 29 (1984): 187-99
VilJoslada, R., LA rmivusidad de Paris durante las estudios de Francisco de Vitoria, OP
(1507-1522)(Rome, 1938)
Vona, P. di, I principi del Defensor Pacis (Naples, 1974)
Vonlanthen, A., Zum m:htsphilosophisc.hen Streit iiber das Wesen der subjectiven Rechts
(Zurich, 1964)
Waldron, J.W., The Right to Property (Oxford, 1990)
Weigand, R., Die Natu"echtslehre der Le_gisten _und Dekr~tistm von lrnnius bis Ar-
cursius und von Gratian bis Johnnnes fe11tomcu!l (Munich, 1%7)
Weil, Simone, Simmrr Wril. A11 Antl111lo,'{_ll• S. Mllt'll, t'(t. (I .oncfon, I9Mj
.
,l'

Wlt•ackt-r, JI., "Contr11d1111 111111 ( lhllK11lln 111 Nnlurrt•d1t 1.wh1dwn Sl'lllm-hc1ln11tk

um.I A11tl.IMn1t11(," In I' <;ruul, ..i1 , I 11 • r1·11111l11 111·11l111•tf111 {Mllim, 1'17:1), 22:1 :N

L
 .. ..
,• . .,. ...
.. .. .
• .-;

INDEX

Abel, 142, 155, 165 Andrf.-\Tmcent, Philippe, 257, 274-275,

Abril Castell6, V., 256, 274 276
Abraham, 144, 145, 155, 165 Angelo de Clavasio, 106, 243
Acosta, Jose de, 321 Anglo-imperial alliance of 1337, 196
Act of Supremacy, 296 Animals, rights of, 717, 248-249, 267- 268
actio, 19, 123, 219, 262, 303 Antigone, 45
-See also ius. Apparatus, Militant siquidem, 73
Accursius, 41 Apostolic poverty. See Franciscan
Ad conditorem, 95, 330 poverty dispute
Adam and Eve, 13, 62, 132, 139, 141, Aquinas, Thomas. See Thomas Aquinas
142, 145, 147, 151, 152, 153, Aristotle, 1, 21, 71, 23, 25, 28, 31, 38, 45,
155, 157, 158- 159, 160-161, 105, 146, 238,245,254, 260, 263,
162, 167, 169, 174, 200, 203, 226, 265, 267,270,271,276, 277,278,
231,238,264,308,310,311 291, 326
- See also Garden of Eden; State of -Aristotelianism and Aristotelian",
Nature, or Innocence 2, 14, 20, 30, 34, 45, 98, 110, 130,
Adams, Marilyn M., 99 173, 189, 216, 251, 261, 262, 269,
Adrian I, 175 271, 276, 277,287,291 , 292,309, J2~
Alanus Anglicus, 54, 58, 73, 102, 141, 179, - theory of natural slavery, 254,
180, 328 265- 266,270, 271,277
Alberigo, G., 208 auctoritas, 293, 294
Alexander V, 223 Augustine, St., 119, 126, 127, 128, 139,
Alexander Vl, 280, 282 143, 166, 171,371, 326
Alexander of HaJes, 146-147, 178, Azo, 29
265
Almain, Jacques, 87, 88, 233, 234, Baier, Kurt, 14
236, 237, 238,239,262, 264, 292, Baldus, 280, 282, 325
294-295 Balzac, Honore, 47
Ambrose, St., 72, 137 Barbeyrac, Jean, 318
American India ns, 144, 254, 255, 256, 257, Barry, N ., 341
265,261>, 26q,271,272- 2R7, 290 Bartolus, 106, 243,282, 325
- and tl1>1111111011, 1t1'i 172 Bastit, Michel, '17, 126, 192, 196, 197-198,
- right!' of l111ll'1111t1lrlrn1l<'<I, 271 2R6 202
- St'\• nl"41, l11lhlPI", 1.... t ••u. ll<•nton, J.F., ~
llnrtoMm.-11, V1tu11... 111..111 1.. " 1lr ti.•n!Mtn, Rckrt L.., ~

l
370
Bentham, Jeremy, 117
Berger, Nan, 21
Berlin, Isaiah, 14
Berman, Harold J., 35, 56
Bernard of Parma, 26, 283
-See also Ordinary Gloss to
Decretals
Berns, Walter, 33, 215
Besselink, L., 320
Blumenberg. Hans, 287
Bobbio,N.,3
Black, Antony, 209, 213, 214, 309, 335
Boehner, Philotheus, 32
Bologna, University of, 201
Bonagratia of Bergamo, 35, 96, 103,
116, 119, 148- 155, 157, 158,
161, 162
Bonaventure, St., 36, 37, 94, 147, 150
Boniface VIII, 26
Bozeman, A.B., 322
Brett, Annabel, 9, 113, 245
Broadie, A ., 242
Brown, C.D., 226
Buckland, W.W., 17
Buckle, Stephen, 333
Bulgarus, 183
Burlamaqui, J.J., 180, 333, 340
Bums, J.H., 236
Bynum, Caroline Walker, 56, 213
Cain, 142, 145, 165
Cajetanus, 301
Calvinist resistance theories, 289, 337
Canon Law, 8, 24-25, 26-Zl 43-77, 111,
201, 211. 219, 258, 262, 276, 279,
281. 282, 285, 322
Canonists, 32, 35, 36, 40, 43- 77, 101,
102, 120, 153, 167, 176-177, 185,
200-203, W9, 223-224, 230, 234,
240,245, 254,284, 286, 300, 320
-See also Decretists; Gratian
Carlyle, A.J. and R.W., 135
Carneades,317,321 , 323
Carro, Venancio D., 256, 271, 274
Catherine of Aragon, 296
Charlemagne, 175
Charles V, 278
Charron, Pierre, 320, 321
Chesterton, G.K., J.'i
Chiappa, T>ioCP!I(' of, 276
China, J21
INDEX
C hristianity, 26, 27, 35, 45, 134, 140, 200,
201, 213, 265, 274, 287, 288, 343,347
-and the origin of rights theories,
23, 27, 45, 46, 68, 211-212, 215
-Church reform and rights, 225-228
-creatures in God's image and
rights, 269, 287, 327, 343
- Eastern Orthodoxy and rights, 215
- modem papacy and rights, 343
-primitive Church, 134-135, 140,
156, 157, 291, 340
Chroust, Anton-Hennann, 318
Cicero, 46,63, 65, 273, 326, 330
Clark, D.W., 99, 100
Clement I, Pope, n , 139
Clement VI, 229
Coing, Helmut, 19, 106
Coleman, Janet, 63
Columbus, Christopher, 236
Comas, Juan, 272
Combes, Andre, W9, 210
Communero revolt, 290
Composta, Dario, 118, 304
Conciliar movement, 8, 87, 207, 208-209,
220, 232, 236, 253, 344
-and rights. W9-210, 220- 225, 228,
233, 234
Condren, Conal, 110, 111
Congar, Yves, 37, 222, 284
Constable, Giles, 56
Constance, Council of, 221, 223, 229, 233,
266
Copemicus, Nicolaus, 236
Corporatism, medieval, 55-56, 110, 207,
209-210, 221, 234
-corporation law, 110, 184- 186, 203,
209, 212- 214, 234, 285
- locus of jurisdiction in
corporations, 309
- fictive theory of corporations, 213
- "right-subjectivity" in
corporations, 212-213
-See also Corpus mysticum;
Individualist ethic, and relation to
communal ethic; Mys tical Body
Corplls mysticum, 209, 224
-SN- also Corporatism , medieval;
My!'itkal Body
( "urtl~'. !~in, IW
( ·uurl<'ll"Y· Wllli1101 L 12. fl1
<'u11vn•11r. ( :1111•... 70 74
l
INDEX 371
Cover, Robert, 214 135, 143, 159, 160, 167, 167, 171,
Cranston, Maurice, 3, 4 218, 240, 242, 260, 262, 265, 268,
Crockaert, Pierre, 256 295, 325, 330
C rowe, M.B., 53, 319 -dominium suorum acluum, 86, 268
Cum intl'T nonnullos, % , 102, 120, 125 -dominium sui, 268, 271
-dominium utile, 244
d' Ailly, Pierre. 87, 224, 234 -See alsoJacultas; ius; potestas;
Dabin, Jean, 34, 70, 117 Property, right of; Rights
Oamiata, M., 111 dominus, 16, 17, 154, 243-244, 268, 269
David, 219, 232 Donnelly, Jack, 2, 3
Davis, David Brion, 337 Dover, Kevin J., 45
Dawson, J.O., 229 Driedo, Johannes, 109, 304
Decalogue. See Ten Commandments Dufour, Allred, 327
Deckers, Daniel, 257, 258, 261, 294, 298 Dumont, Louis, 14, 118, 208, 212
Declaration of Independence, 1, 344 Duns Srotus, 35, 147, 148, 178, 256, 264,
Declaration of Rense, 196 265, 324
Declaration of Rights of Man and -Srotists, 5
Citizen, 344 Durandus of Saint Pour.;ain, 237, 238
Decretists, 43, 54, 64, 68, 71, 79, 102, 117, Dworkin, Ronald, 134, 193
140, 141, 151-152, 154, 167, 170,
178, 202, 265, 345 Edwards, Charles S., 319
- Bolognese school, 67 Eltis, D., 254
- English school, 67-68 rnromadaos, 281
D'Entre ves, A.P., 4 English Civil War, 253
Denunciation, evangelical, 74 Enlightenment, 208, 289, 333, 343, 344,
Den Uyl. D.J., 133, 263, 340 345,347
Descartes, Rene, 19, 321 Epicurus, 291, 321
-Cartesian rationalism, 274 Erasmus, 242
Dietrich of Niem, 234 Eschmann, l.T., 213
dikaion, 21 , 22, 25, 26, 28 Evangelical Liberty, 53, 186, 187, 18R, 1'14,
Diogenes Laertius, 45, 46 214,226-227,228, 239
Distinctiont?S Bambergenses, 67 -and rights, 187-188, 228
Divine law, 39, 112, 114, 151, 155, 162, Exiit, 94, 95, 96, 121. 126, 149, 150, :no
165, 172, 174- 175, 187, 219,226,
292, 293, 297, 305, 324 Facu ftas, 50, 67, 69, 220, 246, 247, 261 , :12~.
-absolute, 98, 197, 200. 326
- See also Divine Power; ius divinum; -li~r facultas, 307
Ockham, William of; Ten -See also ius; potestas; Rights
Commandments; Voluntarism Fall of Man. See Adam and Eve; Stall' of
Divine Po wer, 30, 98, 185, 190, 197, 200 Nature, or Innocence
-See also Divine Law; ius divinum; Fas, 59, 61, 67, 84, 246
Ockham, William of; Ten -See also ius; potestas; Rights
Commandments; Voluntarism Feenstra, Robert, 318, 319, 330
Di Vo na, P , 111 Feinberg, Joel, 49, 50, 74
Dolcini, Carlo, 110 Felden, Johann von, 318
Domat, Jean, J40 Feltmann, Gerhard, 15
Dominican Onln, R1. lll4, 2"i7, 2."11, in, Feminists, 133
2Rh, 2H7 Fernandez-Santamaria, J.A., 256, 21\H
Oominku11 di• Si\111111 I ;..11111(11111111. 1H2 Ft>m<1ndez de Oviedo y Valdk, ( ;., 2~
tfonrirrillm, It•. 17, I''· /IJ, 411. '17, "''· H'I, l'icht('r, J.ft., :101, :102
1110 lllf. IU'\, llln. 111, 114 If'\ l'lk•·nt~lwr, W., J22
372
Filmer, Robert, 132, 159, 162, 167, 333
Fmnis, John. 4, 22. 34, 45, 118, 304
FitzRalph, Richard, 229, 238, 266
Flew, Antony, 3
Florentinus, 326
Folgado, A., 109, 304
Forbes, 0 ., 333
Francis of .AMisi, St., 35, 94, 95, 150, 157,
214
-Rule of, 94, 95, 149, 214
Franciscan Order, 29, 33, 93, 94, 106, 108,
121, 122; and rights, 17-28, 35, 79,
83, 131, 142,145, 164,223,268, 330
-Poverty dispute, 7, 8, 30, 36-37, 38,
93-97, 104, 10'1, 108, 110, 111, 115, Gray, J., 132
118-130, 133, 135, 148-157, 158,
164, 167, 169, 170, 171, 174, 195,
196,199, 207,216,219,229,236,
243,262,307,330, 344
Fraticdli, 207
Frederick II, 172
Frederick Barbarossa, 183
Freppert, L., 99
Friede, Juan, 281
Fuentes, Carlos, 77
Gagner, Sten, 100-101
Caius, 15, 16, 23, 136, 137, 144
Gallicanism, 83
Garcia, A., 78
Garden of Eden, 134, 149
-See also Adam and Eve; State or
Nature, or Innocence
Garrett, w., 52
(;ellinek, Christian, 319
(;erman Peasants War of 1524, 290
(;erson,Jean,3,8, 53, 54, 55,64,65,67,69,
75, 76, 89, 109 20'1-235, 236, 239,
242. 245, 246, 250, 253, 259, 261,
262, 267, 271, 290,296,299, 304,
313, 339, 340
-active and passive rights, 217-220
-church reform and rights, 225-228
-forms of dominion. 230-233
- "Gersonians," 219-220
-droit as right, 223
-ius as subjective power, 210
Gewirth, Alan, 2, 3, 17, 41, 48
Gierke, Otto von, 184-1 85, 208, 213
Giles of Rome, 147, 14A, 172, 229, 26.'i
Gillet, P., :H
Glmclon. Mary Ann, :14t1
INDEX
Glenn, G .D., 81
Glossa ad compi/Jltionmr I, 73
Godfrey of Fontaines, 37, 38, 200
Goldast, Melchior, 198
Golden Rule, 23, 59, 61
Golding, Martin P., 14
Gordley, James R., 58
Gorrell, Jean de, 223
Grabmann, Martin, 105
Gratian, 23,24,25,26,40, 54, 56,56,58,
59,60, 61, 62,64,65. 66, 69,84, 101,
127, 137, 139, 141, 143, 144, 165,
168, 176,201, 223, 263, 264,280,
286, 319, 320, 323
Great Schism, W, 229
Gregory IX, 27, 94, 150, 186
Gregory of Rimini, 305
Gregory the Great, 38, 186
Gross, Carl, 106
Grossi, Paolo, 37, 147, 268
Grotius, Hugo, 3, 42, 50, 51, 73, 89, 100,
103, 109, 117, 132, 135, 167, 180,
215,288, 289,305,316-341,
345, 346
-defense of absolutism, 336-337
-definition of subjective right,
325-326
-foundations of natural-law
thought, 322-324
-individual rights and society,
333-336
- right to property, 329-333
-right of resistance, 337-338
-scholarly assessments, 318-322
- slavery, 336-337
-use of the medieval tradition,
338- 339, 341-342
Grunebaum, J.O ., 133
Guido de Baisio, 27, 54, 102, 177, 180, 202,
286
Guillaume de St. Amour, 222
Haakonssen, Knud, 3, 73, 319
Hate sane/a, 221
Habermas, JUrgen,44, 45,49, 52
Haggenmacher, Peter, 3 16, 319, 324, 334,
JJ9
1lnmilton, 8 ., 256, 299
I fnnk•·. l -4"wh1. 2.c;(), 27J. 274, Jin
1 lnnllnK, A I.., ~~
I ltn l. 111 . A . 4t•. 411, t>H, 7 1, 1•1
INDEX 373
Helm, P., 98, 99 Infidels, rights of, 144, 172, 231, 254,
Henley, John A., 46 264-265, 266-267, 271, 275,277,
Hen.r y Vm, 296 282
Henry of Ghent, 8, 37, 78-89, 93, 117, 132. -See also American Indians
200, 300 iniuria, 268, 269
Hering. H.M., 23 Innocent lll 57, 184, 185, 187, 192, 213,
Hermogenianus, 136 285
Hervaeu s Natalis, 103, 104-108, 113, 118, Innocent IV, 94, 143, 144. 156, 1n, 254.
130, 182, 222,243 267, 277, 282,309,330, 333
Hobbes, Thomas, 1, 3, 6, 18, 42, 43, 51, 52, intatsSe, 262
65,78,81, 82, 99, 133, 214, 263,289, Isaac, 155
340-341 Isidore of Seville, 24, 59, 67, 124, 142.• 146,
Hoffner, }., 275 178, 179, 234
Hohfeld, Wesley N ., 8, 48, 55, 314 ls-Ought Problem, 5-6, 344
Hokot, Robert, 88 Israel. 1
H onorius III, 26 ius, passim
Horace, 326, 330 -as moral precept or divine
Horowitz, M.C., 46 command, 24, 25
Hostiensis, 73, 83, 119-120, 144, 145, 182, -ius ad rem and in re, 19, 58, 220,
266, 277, 309 28.3,303, 326
Huber, Ulricus, 318, 326 -iusagendi, 119
Huguccio, 54, 57, 58, 60-61, 64, 65, 68, 71, -ius altius tollendi, 16
72,73,74, 75, 102, 103, 137, 139, -ius charitatis or ius evangtlicum,
140, 141, 142, 143, 145, 146, 159, 216
167, 170, 176, 203, 265, 279, -ius dominii, 23, 157, 171
330, 333 - ius tpiscopale, 218
Hugh of St. Victor, 330 -iu.s possidmdi, 23, 119
Human nature, 5, 6, 24, 26. -ius suum cuiqut tributrt, 16, 25, 30J
- autonomy of, 46; -ius utendi, 16, 29, 37, 94, 120, 121
-capacity for moral discernment, 6, -ius and dominium compared, 16 17.
77,99, 197,305,327 105, 106, 107, 113-114,242,243, 244,
-mutable character, 23-24 247, 248, 250, 260,267-268
-premise for natural rights, 36, 193, - ius and fas compared, 59, 246
271- 272, 317, 343 -ius and libtrtas compared, 189
-See also Natural Law; Natural -ius and pottstas compared, 28,
Right; Rights 29,39, 40- 41 , 85, 107, 104-108, 325
Humanists, renaissance, 242, 252, 253, -ius as facultas, 64, 201, 210, 220, 22.1,
341 227, 229,243,261, 262,303, 304, 32~
Hume, David, 5, 6, 22, 274, 333, 343, 344 -ius as "objective law" and
-See also ls-Ought Problem "subjective right," 105, 109
Hus, Jan, 32, 214, 221 112-113, 116-117, 119-120,
-Hussites, 229 125-126, 127, 128, 129, 234,
242-243, 264, 324
lannarone, Agostino, 255 ius eivi/e, 25, 112, 119, 242
lhering, Rodolf von, 117 ius consuttudrnis, 127
Indians, American. See American ius divinum, 23, 61, 242
lndi;ms ius dominatiuum, 306
lndividuali!>I l'lhic, i11lll n ·l11tion to c-om- ius gmti11m, 25, 136, t:\7, 307, :\()ft
m111111l 1•thk. 4, 'ii\ 1\6, 711, I JO. 1%. i11s /ibertatis, 57
20H 7 I"/. 1·14, J \'\, J'>ti 'JW. :1111. 111$ 11nt11rnlr. 20. 2.1, 24, 25, 27, :\.1, :N, 4h,
·111 II I. t.'4. 14fl 411. 54, .'>II, 61 , 1>2, M - hll. ""· 7 1. 7t1,
S.'i' 111•11 l "''"" 1111•111, """ '"' ,... , 'Ill, 112. 122, 117. l'N, 141, 14'\, l'il.
 374 INDEX I N llEX ~75

ius naturalt (cont.) - See also Property, right of; Lipsius, Justus, 320 Mallingly, Garrett, 262
175,176, 179, 186,201,264, 305, Sovereignty Livy, 17 Marx, Karl, 208, 345
324,327 juslt partage, 22, 25 Lloyd, H.A, 302 Melden, A.I., 14
-as reason, 64, 141, 201 Justenhoven, H .-G., 288 Locke, John, I, 3, 6, 42, 43, 51, 75, 76, 77, Melloni, Alberto, 1 n
-decretist definitions, 58-64 Justinian, 137 78, 79, 80, 81, 132, 135, 159, 168, Menhldez Pidal, R., 2n
-ius poli, 94-95, 199, 210 183,203,215, 248, 330,333,340 Meuthen, Eric,208, 209
-compared with iusfori, 118-130 Kalinowski, G., 24 toxos. 22 Mexico, 256
- ius naturale and ius positivum Kant, Immanuel, 18, 20, 22, 118 Lopez, Robert, 131 Meyjes, G .H .M. Posthumus, 209
compared, 123 Kantorowicz, Ernst, 213 Lot, 144, 145 Michael ofCese.na, 95, 96, 125, 148, 153,
-See also Natural Law; Natural Keen, B., 272 Lottin, Odon, 60 155, 195
Right; Natural Rights Kelley, Donald R., 168 Louden, Robert L., 49 Michaud-Quantin, Pierre, 110, 209
iustiti.a, 221, 262, 302, 309 Kilcullen, John, 99, 172 Louis xm, 318 Michelangelo, 236
Kolmel, W., 31, 97, 178 Lovejoy, Arthur 0., 48 Miller, Fred D., 45, 26.3
Jacob, 165 Kuttner, Stephan, 60, 64, 67, 68, 126, 140 Lucretius, 291, 321 Minogue, Kenneth, 3
Jacobus de Albenga, 27 Luhmann, Niklas, 132, 261 Molina, Luis de, 220, 245, 304, 330
Jaffa, H ., 215 Lacey, M.T., 73 Luii.o Pena, A.E., 274, 275, 279 Monahan, Arthur P., 255
James I, 302 La Capra, Dominick, 47, 48 Luther, Martin, 227, 236, 290 Montaigne, Michel de, 320, 321
Jarlot, G., 301 Lachance, Louis, 304 -Lutheran doctrine of monarchy, More, Thomas, 253
Jefferson, Thornas, l , 346 Lagarde, Georges de, 14, 31, 44, 45, 52, 83, 296 Morrall, J.B., 31, 32, 97, 209, 210, 216
Jesus Christ, 29, 55, 95, 96, 111, 115, 120, 97, 101, 111, 116, 171, 175, 180, 181, Lyons, David, 46, 249 Morris, Colin. 56, 214
144, 149, 150, 153, 154, 156, 157, 196, 201, 234-235 Moses, 1, 145,155
18.5, 187, 190, 211, 215, 22, 223, Lambert, M.D., 36, 93 Macfarlane, A., 55 -Mosaic law, 239, 250
295, 299 Las Casas, Bartolomeo de, 255, 256, Macintyre, Alisdair, 2, 3, 43, 44, 344 Muldoon, James, 144, 262, 266, 319, 340
Jewish Law, 254, 337 272-287, 302 MacPherson, CB., 44, 52, 78, 79 Muslims, 254
Johannes Andreae, 41, 125-126, 129, 144 -legal arguments against Spanish McCloskey, H .J., 79 Mystical Body, 209-210, 211, 212, 215,
Johannes Monachus, 40-42, 48, 93, conquest, 280-286 McDonnel, K., 99 224, 299
115-116 -natural righl of Liberty, 278-280 McGrade, A.5., 98, 100, 170, 175 -See also Corporatism, medieval;
Johannes Teutonicus, 102, 133, 219 -polemical nature of works, 276-277 McKeon, Richard, 168 Corpus mysticum; Individualist
-See also Ordinary Gloss to Dtcrtlum -refutation of natural slavery, Magna Carla, 47, 95 ethk, and relation to commun<1I
John xxn, 29, JS, 93, 95, 97, 102, 103, 104, 272-273, 277- 278 Machan, Tibor R., 193, 263, 340 ethic
119, 120, 121, 122, 124, 125, 126, - Thomism and rights, 274-276, Machiavelli, Nicolo, 236, 253
129, 131, 142, 144, 148, 149, 153, 280 Mahn-Lot, M ., 275 Natural law, 4, 5, 8, 25, 34, 38, 39, 42,
154, 155, 156, 157, 158, 159, 160, -universal brotherhood, 273 Maine, Henry Sumner, 15, 46 44, 46, 59, 6.3, 119, 175-176,
161, 162, 163, 164, 165, 166, 167, Laurentius Hispanus, 73, 137 Mair, John, 236, 237, 239-242, 244, 245, 177- 187, 302, 304-305, 306, 31 I,
169, 195, 198,207,265, 307, 330, 331 Le Bras, Gabriel, 13 253, 254, 276 317, 323,329
John xxm, 343 Le Goff. Jacques, 212 -rights of the poor, 239- 240 -commands and demonstrations,
John of Naples, 106 Leibniz, Gottfried Wilhelm von, 340 -theory of property, 240-241 62- 63, 138, 139
John of Paris, 147, 148, 170, 201, 222, 224 LeoVIH, 175 Maitland, Frederic W., 70, 203, 213 -correlative with natural rights,
Jolowicz, H .F., 17 Levellers, 52 Martinus, 183 33-34, 199
Jones, J.W., 45 Levi-Strauss, Claude, 18 Maritain, Jacques, 4,34,215 -disobedience to unjust laws,
Judeo-Christian thought, 46, 211, 214, 342 Levy, Ernst, 17 Marrone, J., 83 313-314
Julius Paulus, 46 Lewis, E., 213 Marshall, John, 110 -permissive, 8, 33, 44-45, 51, 66,
Junghans, ff., 32 Lewis of Bavaria, 96, 169 Marsilius of Padua, 103, 104, 108-118, 259,306-307, 311, 328-329
Jurisdiction,171-176,237,238 lex, 22, 25, 51, 53, 65, 68, 116, 211, 221, 228, 119, 120, 129, 130, 182, 243 -source of law of nations, 271, :lt7,
-based on election and consent, 242, 259, 303, 326 - domini11m and use, 114-115 326, 339-340
175- 176, 182,183, 237, 283-284, - lex naturalis, 24, 25, 27, 212 - on objective and subjective right, -suppositious, 179, 305, 327
301 - lex naturt, 67 109, 111 - 113, 115-117 - "what nature has taught all
-derived from God indirectly, l.iber Sextus, 41 - rwrmiss ive law as source of rights, animals," 258
171-172, 185, 237- 238,310 Liberty, evangelical. SN• F.vangelicill 112, 117 - and the majority prindplt>, 2.M
-from Cod directly, 29J-:iq5 liberty iot hol111ly .,~,.•·•~1111•11111 , I Ill 111 - Set- al'IO iu~ nalurall'; Natur11I RIRhl;
-jurisdiction in a corporntlon, '.lel'I l.i1'fl i11ri.Q, llH> M11rtln, l<r •, I I. U l'mpt•rty, rl~ht 11(; RIRhl11
 376
Natural right, objective or cla.ssical, 4,
20-21,22,23,25, 26, 32-33, 34, 39,
42, 45, 105
-contrasted with subjective natural
rights, 44-45, 51-52; 54, 143, 175,
201-202, 234,258-259,324-325
Natural rights, subjective, passim
- as force or power of the human
personality, 36, 63-65, 210, 245
-derivation from natural law, 4, 38,
44, 47, 119, 263, 306
-derivation from right reason, 65,
128, 164, 166, 193, 199, 200, 210, 227
-historiographic issues, 1-6, 43-44,
48-49, 50, 78-79, 88-89, 195-196,
208,215-216, 236,286,344-345
- of liberty, 53, 187-188, 231 , 272,
278-280, 306,313,314
-of self-defense, 233, 271, 292,
296-297, 298, 299, 308, 314
-of self-preservation, 79-89, 114,
117, 237, 239-240, 296-297, 298,
'299, 308
-persistence after institution of
government, 182, 183, 296, 313,
315, 336
-positive rights and natural rights,
20, 121-123, 126, 127-128, 241
-suppositious natural rights, 179,
305,327
ntcessitas, 84, 85
Nerva Filius, 135
Nicholas Ill, 40, 94, 95, 96, 121, 126, 167,
330
Nicholas of Cues, 234-235
Nickel, J.W., 13, 44
Nimrod, 140, 141
Noah, 147, 155, 165
Nominalism, 8, 20, 23, 28, 29-30, 35 36,
41,43, 97, 110, 118, 180, 196- 199,
216, 220, 240, 241 , 286
-See also Ockham, William of;
Voluntarism
Norr, Knut, 119
Oakeshott, Michael, 52, 117, 340
Oakley, Francis, 83, 87, 211, 213, 2.14, 239,
253
Oakley, John, 150
Oberman, H.A ., 226
<kkham, William of, :l, 4, 14, ''· 14, l.'i, II(
20. 2.'l, 27. :n. :14. ·"'· 11. '"· 411. 41 .
INDEX
42, 44, 56, 57,68, 75,76, 79,80,87,
88 94, 96, 104, 105, 107, 108, 109,
110, 117, 118-130, 135, 144, 145,
148, 154, 157, 170-194,195,
196-203, 207, 210, 216, 227, 234,
236,237, 239,251,253,256,265,
276, 279, 286,302,305,310, 328,
333,340,345
- and canonists, 36, 101-103, 164,
167189-194, 198, 200-203
-and development of Western
rights thought, 195-203
-and nominalism, 35, 196- 199, 208,
216
-and property, 157-168, 171-175
-importance of right reason, 99-100,
173, 174, 175, 193, 198, 199-200
-on relationship of natural Jaw and
natural rights, 175-182
-on rights and the common good,
189- 191, 196
-scholarly assessments, 27- 32,
97- 101
-types of natural law, 175-182, 202
-unity of legal and philosophical
thought discussed, 31-32, 97-98,
196-200
Odo of Dover, 63
Odofredus, 193
Offler, H.S., 102, 176, 177, 179, 181
O'Gorman, Edmundo, 2.7 4, 316
Olivi, John Peter, 39, 42, 89, 93
Ordinary Gloss to Decrl!fum, 57, 61, 74, 84,
85, 102, 128, 133, 181. 193, 219
Ordinary Gloss to Dtcretals, 25, 27, 57, 125,
176, 184, 192, 198
Ostwald, M., 45
Ott, H., 237
Otto, Gerhard, 262
O!!o :, 175
Ozment, Steven, 225
Pacem in ferris, 343
Pagden, Anthony, 47, 270
Pangle, T., 133
Panormitanus, 125, 126, 234
Pateman, C., 133
r dS<."tlt', L.B., 211, 225, 227
r•.1111. St., 24. 46, 67. M , 211 . 21s. rn, 292,
2'n
I '1•l"K' "" ht•rt•'ly, 27h
l'1•1111l11Klnn, l\1•111ll'lh, 144. llfl. 1'111, 2Hll
INl>fK
Pennock, J.R., 14
Perefta, Luciano, 280
Perez, Fernando, 219
Perez de Tudela Bueso, J., 276
Peru, 255, 256, 321
Peter, St., 185, 187, 207, 222
Peter Abelard, 55
Peter Lombard, 257
Philip II, 281
Philo,326
Piaia, G., 118
Pia menatz, J.P., 49
Plato, 1, 82, 140, 238
- neo-platonism, 216
- Platonic ideal forms, 31
-See also Realism, philosophical;
Universals
Pocock, J.G.A., 47
Pollock, Frederick, 213
Poor, rights of, see Rights.
potestas, 17, 28, 29, 39, 40, 41, 57, 85, 105,
219, 245,246, 247, 260,262,293.
294,325
- potestas co11dt11di leges, 30
- poltslns ulendi, 107
-and n11ctoritas, 293- 294
-and potenttn, 245, 249
-See also facultas; ius; Rights
Poste, E., 15
Pothier, Robert Joseph, 340
Prendes, Perefia Perez, 265, 330
Previte-Orton, C. W., 111
Prieras, Sylvester, 41, 106, 219, 245
Property, right of, 131-169, 183, 199, 238,
264-265,279,300,302, 306, 324
-claims of poor to surplus, 73- 75,
218, 239- 240, 301, 307, 332
- first acquisition, 131-135, 136- 137,
140-141, 142-143, 154-155,
157-159, 160-161, 162-163,
171- 175, 307, 308
- in Gratian and decretists, 59-60,
61- 62, 71-73, 137-145
-natural dominion, 146, 230- 231,
233,263,308
-not dependent on state of grace,
230. 238, 266- 267
- n ri1o:in in human agreement, 132,
1.1'1. 14'>. It1'i l<>h, 2.lH, 264, JOll.
ll7
l''"l "'' 'V t IKhl- t11 rn1r·,. !"''"""·
HI "I. "'' H'f K'I. Jr.K
377
-Canon law and the origin o f,
137- 145
-Roman law a.nd the origin o f,
135-137
- theological accounts of origin,
145-148
-See also, ius; Rights
proprittas, 85, 94, 105
Proudhon, Pierre-Joseph, 168
Pufendorf, Samuel, 78, 81, 82, 83, 132,
133, 135, 167, 168, 180, 183, 203,
318,340
Pugliese, Giovanni, 17
Purgatory, 212
Q11ia vir reprob11s, 97, 120, 121, 123, 124,
125. 148, 153. 155, 161
Quillet, Jeanine, 111
q11od omnes tangit, 283, 284
Rapaczynski, A., 135
Rasmussen, D.B., 263, 340
Realism, philosophical, 31, 32, 196, 216,
241
Reformation.• Protestant, 253, 288, 289
Reid, Charles J., 8, 57, 262
Renaissance of the twelfth century, 34,
55-56, 216
Republicanism, classical, 88
res incorporales, 15, 16
res 11ulli11s, 135, 142, 145, 163, 167, 3JI
Rescasens Sidles, L , 301
Ricardus Anglicus, 54, 60, 64, 73, 141
Richard of Conington, 147
Rights, passim
-active and passive rights, 3, 4, 7,
58, 113, 217-218, 219, 220, 249
-adventitious rights, 7, 180
-alienable and inalienable rights, I,
79-80, 93, 181, 182- 183,231,235,
238. 295-296, 306
-choice theory compared with
interest theory, 118, 189
-deprivation of rights for grave
cause,57-58, 187,202,244, 259
- human rights, I, 2, 20- 21 , 4J. 254,
268,273, 345
- no prejudiet' lo third partit'!I, 21U ,
2R2-211..1
- n:onundation of right?', I 7t., IHI , I K2
- -amt 1hlrct-p<lrly lw1wfki11rl1·"·
4'1 "ill. 71
378 INDEX
Rights, passim (cant.)
-and atheism, 214-215
-and common good, 189-191, 312,
334
-and duties, 78-89, 193-194, 242,
298-299
-and restitution, 259, 260, 261, 281
-and social contract, 334
-as faculties, 51, 53, 'Sl, 65-66, 67,
69,210, 223, 227,228, 258,260,
303-304
-as free choice or zone of individual
autonomy, 44, 49, 51-52, 66-68, 79,
189, 193, 298
-as individual power, 23, 28, 48-49,
51, 53, 57, 82, 85-86, 107, 228
-as liberties, 57, 189, Xl2, 279, 286
-as limitations on ruler's authority,
182-193, 236, 279-280
-of association, 309
-of the poor, 70-76, 218, 231, 239,
240, 301, 307, 332
-of use and ownership, 36-37, 96,
104-105, 106, 107, 108, 114, 115,
121-122, 124-125, 129-130, 131,
153, l'Sl, 158, 161, 167,307,330,331
-See also ius; Natural Law; Natural
Rights; Property, right of
Roensch, F.J., 105
Roman emperors, source of authority
-translation theory, 183
-concession theory, 183
Roman emperors, and dominium, 183
Rotnanlaw, l , 13, 24, 25,26, 28, 29,37,40,
46, 56, 74, 111, 118, 125, 135-137,
142, 254, 258,276, 279,284,291,
309, 320, 330, 337
-Code ol Justinian, 26
-Digest of Justinian, 40, 41, 111, 328
-Institutes of Justinian, 152
-glossators, of, 19, 29
-Ordinary Gloss to the Code, 279
-Ordinary Gloss to the Digest, 41
- rights in classical, 15-20
-seventeenth-century organization,
15
Romantic movement, 208
Rommen, Heinrich, 14, 301, 323
Rorty, Richard, 5
Roshwald, Mordecai, 52
Rousseau, J.J., 274
Rufinus, 54, 61, 63, 66, 137, 138, 139, 145,
167, 178, 265
Ryan, A., 133
St. Germain, Christopher, 53
St. Leger, J., 320
SaJaJJ\anca, Schoolo~256.257, 290,301
-Set! also Spanish neo-scholastics
Salmon, J.H.M., 302
Samuel, Geoffrey, 118
Saussure, Ferdinand de, 18
Saxonhouse, A.W., 78
Savigny, F.C. von, 49, 117
Schmaus, J.J., 318
Schwarz, Reinhold, 210, 219
Scott, James Brown, 318, 319
Secular-mendicant controversy, 83,
222- 223
Selden, John, 162, 167, 340
Self-preservation, right of. See Natural
rights
Seneca, 137
Sepulveda, Juan de, 255, 272, 273, 277,
278
Shapiro, Ian, 44, 47, 196
Sicardus, 63, 145
Sigmund, Paul, 118
Simon of Bisignano, 63
Skinner, Quentin, 78, 210, 219, 237, 334
Slavery, theory of natural, 254, 255,
265-266,270-271,X72-273,277
-See also Aristotle; Las Casas,
Bartol6meo de; Grotius, Hugo;
Vitoria, Francisco de
Smalley, Beryl, 88
Socrates, 80, 82
Sommerville, J.P., 301
Sophocles, 45
Soto, Domingo de, 109, 233, 241, 245, 252,
299,330
Sovereignty, 288, 289
-based on human will and consent,
301, 309-312, 334
-defense of absolutist rule,
336-337
-divine right of kings, 289, 290- 291,
293- 295, 301, 302, 311,329
- relatioMhip with natural rights,
2R9, 290, 313- 3 15, 317- 3 1R
and ~K"lnl nmtrnc·t, .1.13 );\ii
Sc:-c• nl'"1 Jur-li.cl ktlon
INDEX
Spanish neo-scholastics, 8, 32, 41, 53, 68,
75, 76, 108, 168, 253, 255, 258,286,
289, 316
-See also Las Casas, Bartol6meo de;
Suarez, Francisco de; Vitoria,
Francisco de
Spiecs, K.E., 111
State of nature, or innocence, 133- 134,
145, 148-149, 150-151, 152, 153,
159- 160, 161, 163, 238, 295,330, 332
-See a lc;o Adam and Eve; Garden
of Eden
Stein, Peter, 303
Stephanus, 61
Stickler, Alfons, 224
Stoicism, 45, 46, 62, 65, 66, 202, 273, 286,
320
Strauss, Leo, 4, 14, 33, 44, 52, 78, 208, 215
-Straussians, 133
Sturmer, W., 171
Suarez, Francisco, 45, 51, 45, 76, 89, 100,
103, 109, ll7, 124, 168, 233, 286,
288,289, 301- 315, 316, 317, 318,
319, 320, 322, 324,326,327, 329,
330,332,334, 337, 345
- definitions of ius, 303-304
-juridic and philosophical sources,
302-303
-on forms of government, 311-312
-on natural law, 304-305
-on natural rights, 306-309
-on the o rigin of the state, 309-311
- rights within political community,
313-315
S11mm11 Bambergensis, 71
Summa, lnperntorie m11ieslnle, 66
S11mmn, In nomine, 67
Summenhart, Conrad, 69, 89, 109, 236,
238, 242-252, 253, 256, 259, 260,
261,262, 262, 263, 264,265, 266, 267
-analysis of Gerson's definition of
ills, 245- 248, 250-251
-on ius and domini11m, 243- 245
- on objective and subjective right,
242-243
Sumner, L.W., 193
synderrsis, 53, 63, 64, 76, 228
Taba rroni, A., 93
Ten Commandments, 1, 23, 50, 71, 174,
292, 324
379
-See also Divine Law; Divine
Power; Voluntarism
Thomas Aquinas, 4, 9, 18, 21, 22, 23, 24,
25, 26, 27, 28, 29, 31, 32, 37, 39, 40,
45, 69, 74, 75, 86,87, 88, 105, 108,
130, 145, 146, 147, 178, 210,
213- 214, 256- 265, 267, 268,269,
274, 275, 276, 277, 279, 280,20, 295,
297, 300,301, 302, 303, 304,322,
323, 324,325
- Thomists and Thomism, 4, 5, 8, 32,
42, 34, 87, 105, 108, 130, 210, 213.
216, 257, 261 , 262, 262, 265, 268,
269, 271, 274, 275, 276, 277, 278,
286, 291,302,308,325
Thomas of York, 222
Thompson, Augustine, 58
Thomson, Judith Jarvis, 133
Tocco, F., 95
Torah, 22, 25
Torello. Giovanni, 152
Tiibingen, University of, 236
Tuck, Richard, 4, 7, 18, 53, 56- 57, 64, 106,
210, 216, 217- 220, 244,249, 257,
319, 320,321,322,324
Tully, James, 4, 233, 326
Turley, T., 95
Tyrolese marriage dispute of 1342, 196
Ullmann, Walter, 222
Ulpian, 16, 23, 28, 136,258, 303
UN Universal Declaration of Human
Rights, 233, 274, 345
UNESC0, 2
universals, 31, 216
- See also Plato; Realism,
philosophica I
Universitas fidefium, 207.
-See also, Corporatism, med if'val
University of Paris, 83, 213, 223, 236, 2.1H,
256, 294
Urdonoz, Teofilo, 257, 290, 29:\, 2114
Usus, 94
- usus simplex fadi, 94
- See also, Ockham, William of;
Rights
ususfructus, 29, 30,94, ~26
Utilitaria nism, IJ8, 190
Vallad olid. 272
Vanlanthrn, A., 4'>
380 INDEX

Vatican Council Il, 274 -and right reason, 174-175, 286, 327
Vb.quez de Menchaca, Fernando, 330, -See also Divine law; Divine Power;
335 Nominalism; Ockham, Witliam of;
Venice, City of, 312 Ten Commandments
ViHey, Michel, 3, 4, 6, 7, 8, 13-42, 52-53, Vyver, Johan van der, 249
68, 79, 80, 97, 105, 108, 196, 199,
202, 208, 210, 215,216,220, 257, Waldron, Jeremy, 133
260, 273, 286, 302,318, 326 Wars of Religion, 253
Villoslada, R , 256 Weigand, Rudolf, 33, 60, 63, 137, 144
V-mcentius Hispanus, 73 WeiJ, Simone, 157
virtus, 41 Wieacker, F., 318
vis, 41, 46, 62- 64 Wilenius, R, 301, 302
Vitoria, Francisco de, 41, 68-69, 89, 233, Wilks, Michael. 83
245, 249, 255, 256, 256-265, Wohlmuth, Joseph, 209, 233
266- 272, 278, 288, 289, 290-301, Wolf, Erik, 48
302, 308, 310,311,319, 321, 323, Wolff, Christian, 51, 68, 77, 117, 228,
327, 329, 333, 334 340
-definition of subjective rights, Woolf, C.N.S., 339
259- 262 World War II, 345
-development of thought on Wyclif, John, 32, 196, 221 , 229, 230, 232,
sovereignty, 295-296 238, 266
-dominion among the Indians, -on sinfulness and rights, 229-230,
263- 265, 266- 268, 269-272 238, 266
-origins of the commonwealth. -Wyclifites, 233
290- 295 \oVulf, l\1. de, 31,213
-refutation of natural slavery,
267- 268, 270-271 Yolton, J .S., 78
-rights in the commonwealth, Yolton, J.W., 78
296-301
- and his Thomistic sources, 256-259 ZabareUa, Franciscus, 125, 126, 209, 212,
Vives, Juan Luis, 239, 242 216, 234
Voltaire, 274 Zenzellinus de Cassanis, 102, 125
Voluntarism,8,35, 53,97, 98-99, 100, 117, Zuckerman, Charles, 31, 196
118, 196, 197, 198,327 Zulueta, F. de, 17
"Brian Tierney has pioneered the discovery of the origins of rights language. He
combines mastery of a wide ran~e of sources with novelty ~ interpl'f!tation."
Antony Black, University of Dwukt:

"This is a historical work of extraordinary depth and breadth, which will interest
- and surprise - not only historians but also political theorists, legal scholars,
and others who wish to understand the origin and early developme.n t of contem-
porary theories of rights. Tierney's book shows that Western Christi.an rights the-
ories wett first elaborated within the communiwian values of traditional socie-
ties and thus have a universal validity that tran5«nds Enlightenment postulates."
Harold]. Boman. Emory Univtrsity

"A superb scholarly synthesis of medieval into early modem legal, philosophical.
and theological sources for an idea widely and not always favorably regarded as a
product of the European EnlightenmenL Tierney's extra.o rdinary gift of lucid and
engaging presentation of past subtleties not only takes us into the medieval mind
in its subtlest (and liveliest) phase, but, more important, brings medieval
thought into the center of our own world, and much to our good. This is a schol-
arly gem with cutting-edge relevance to our present global condition."
A. S. McGrtlk, Univtrsity of Connteticut

"A masterpiece showing that the canonists formulated a new language of rights
which has been foundational to the development of Western thought in the fol-
lowing centuri.es."
Giwstppt Albaigo, Univusity of Bologna

"Brian Tierney, one of the worlds leading scholars in the field of medieval canon
law, has produced a volume that is absolutdy essential reading for anyone inter-
ested in human rights issues."
James Muldoon, Rutgers University

Brian Tierney is the Bowmar Professor in Humanistic Studies, Emeritus, at Cor-

nell University. A world authority on Western history and canon law, he has pub-
lished a dozen books, including Foundations of the Conciliar Thtory; Rdlgion,
~ and the Growtlt of CoflStitutional Thought; Origins of Papal Infallibility; and
Mtdinral Poor Law

ISBN 0-6026-4554-0

_111imu 1in11