John
Kilcullen
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A
version of this paper was read to an
international workshop at the
Contents:
Historians
of European political thought have
for some time been interested in the question, when did the concept of
a right,[1] of
a natural
right in particular, come into use in
One
of the
things at stake for historians of rights language is the role of
medieval
thinkers in the development of modern political thought. Medievalists
are often
irritated by the common assumption that the modern world began with the
Reformation and the Renaissance. Protestant and secular historians, who
are
generally very positive in their evaluations of modern European
culture,
continually ignore or downplay medieval contributions to its
development.
Sometimes they mention Thomas Aquinas, but they seldom take any serious
look at
other medieval writers. Medievalists I think are united in believing
that (for
better or worse) many of the most important institutions and ideas of
the
modern world go back at least to the Renaissance of the 12th century.[2] In
the matter of rights, the admirers of
the modern world may contrast modern conceptions of rights, in which a
right is
an expression of individual autonomy, and medieval conceptions, in
which right
is said to be based on duty to God. Since the concept of a right is
said to be
“theory dependent”, this contrast implies that when
medieval writers used the
language of rights it did not mean what it means to us. That the
medieval
thinkers thought only of duties is one of the misconceptions Tierney
wants to
correct: “Although the idea that medieval natural rights
could only be rights
to obey the mandates of natural law is often taken for granted in
modern
writings, I cannot recall any medieval text that makes this assertion.
Instead,
when we turn to the earlier sources we encounter a long
tradition… that
emphasized choice rights as well as the fulfillment of
duties”.[3] The
practice of using Thomas Aquinas as the only stepping-stone
between the ancients and the moderns contributes to the misconception,
since
Thomas did not make use of the notion of subjective right, although
that notion
was already available in medieval thought. If Thomas is taken as the
standard
Medieval, then it looks as if there was a watershed after Thomas
Aquinas.
Tierney remarks: “the ‘watershed’ did not
come after Aquinas”.[4]
Tierney’s narrative is that the notion of
subjective right is found in the 12th century canon lawyers, was for
some
reason not used by Aquinas, was taken over into theology and political
thought
in the 14th century (and not first by Ockham, though he may have been
the first
to develop a rights-based political theory); since the 14th century it
has a
continuous history into modern times.
One
of the
strengths of Tierney’s work is of course his acquaintance
with a wide array of
texts. But his other great strength is his acquaintance with the
analyses of
the relevant concepts made by recent writers on jurisprudence and
philosophy
and his own skill in such analysis. No one can construct a history of
natural
rights simply by going back through texts. Historians need to
understand what
the concept of a natural right is, or the several concepts if the term
is
ambiguous, and what the philosophical issues are in connection with
natural
rights, so as to recognize which texts are relevant.[5] We
also need philosophical analysis to
guide our interpretation of the wider cultural significance of the
development
of rights theories.
In
this
paper I will concentrate on some questions of philosophical analysis
rather
than on texts. Throughout I will be concerned with moral rights and
not, except
incidentally, with legal rights. I will criticize some of the
philosophical
opinions that have influenced historical research and interpretation,
for
example the opinion that the concept of a right is “theory
dependent”. I will
try to say what rights are, as this English term is used in our own
time, and how
rights are justified. I will discuss certain medieval definitions of ius in the sense in which it seems
equivalent to the English term “a right”, and I
will consider some possible
relationships between natural rights and
natural law. I will suggest that the question when subjective rights
were first
acknowledged is not as important for the history of culture as has
sometimes
been supposed; long before the language of rights came into use,
moralists had
recognized and valued human freedom and individual discretion.
What is a moral right? A first
approximation to an answer is this:
If we say that someone has the right to do something, we mean that the
action
is “right”, i.e. not wrong, morally permissible.
But then, why talk about
rights at all—why not just talk about actions that are right?
What the first
approximation misses is that an act one has a right to do belongs to a class of actions recognised
by the community as (prima
facie) permissible; that is, the community is agreed that
when a person
does an individual act belonging to that class, there is a presumption
that
that individual act is morally right. But this is not quite right
either, since
there are human rights or natural rights that in some sense
“exist” which some
communities do not recognise. To provide for these, we must say that
there may
be rights that ought to be
recognised
by a community that does not actually recognise them. This is
the definition I suggest for a right: if a person has a right to do
something, then
that act belongs to a class of acts that is, or ought to be, recognised
by the
community as prima facie
permissible.
Let me go through this in more detail.
A
right, when it is actually exercised, triggers certain duties on the
part of
other people; but the duties are not part of the concept of the right.
It is
sometimes said that rights and duties are correlative;[6]
I
do not say this; I think that the dependence is from right to duties
and is not
reversible. The fact that some people have duties that benefit some
other
person does not constitute a right on that person’s part.
Also, the duties do
not arise from the existence of the right, but from the decision to
exercise
it.
What
are these duties? An early modern author I find interesting on the
subject of
moral rights is Pierre Bayle. His
Philosophical
Commentary on These Words of the
Gospel, Luke 14.23, “Compel Them to Come In, That My House
May Be Full”
convinced many in Europe to recognise the “rights of
conscience”, i.e. the
rights of religious people to do what their consciences dictate,
without being
coerced or persecuted. This religious freedom was extended during the
19th and
20th centuries to moral freedom, i.e. freedom to live as one chooses,
to make
different “experiments in living”, to use
Mill’s phrase.[7]
Bayle’s book is one of the foundations of modern liberalism.
Bayle’s conception
of the duties others have in consequence of a right seems to be this.[8]
If someone has a right, or believes
he has a right, others have duties not to blame or punish what that
person does
in exercise of this putative right, even if they think that his belief
is mistaken.[9]
But, Bayle says, we do not always have to allow people actually to do what they believe they have a right
to do. Some people’s consciences impose on them duties to
persecute unbelievers,
to kill apostates, to carry out human sacrifice, etc.: we must prevent
them
from doing such things. According
to Bayle, respect for the
rights of conscience means not blaming or punishing people for doing or
trying
to do what they believe is their duty to God, and, if we have to
prevent them
from doing it, preventing them in ways that do not tempt them to
consent to
anything against their conscience (e.g. we should use physical
restraint, rather
than threats or inducements), and respecting them for their efforts to
do what
they think is their duty to God even while we prevent them from doing
it.
Bayle
is concerned with problems that arise within a community when people
radically
disagree about morality and religion. This is a topic to which I will
return. But
let us focus first on the case in which conflict is less radical. Let
us
suppose that we accept that a person truly has a right and that what
they are
doing is truly an exercise of that right. I suggest we would say in
that case (following
Bayle) that other people have duties not to blame, punish or retaliate, and
(departing from Bayle) also a duty not to obstruct deliberately. By
obstruct deliberately
I mean do something precisely and solely for the purpose of
obstructing. (This
does not rule out obstruction when it is a side effect of exercising
our own
rights or seeking our own legitimate goals.) Some
rights may mean more than not punishing etc. or deliberately
obstructing.[10]
In some cases we may be obliged not only not to obstruct deliberately,
but even
to get out of the way, or to give positive assistance, or to supply
goods or
services.[11]
As I suggested earlier, the core of the concept of a right is the presumption that an act done in exercise of the right will be morally permissible. The permissibility of the act is the reason why others have duties not to blame, punish, retaliate or deliberately obstruct. There are general duties not to blame, etc. any morally permissible action—these would be duties even if there were no such thing as recognised rights. If the exercise of the right is morally right, then others will have duties not to blame etc. by virtue of these general duties.[12] The duties are not part of the concept of a right, they are another element of morality prior, in time and logically, to the recognition of rights.
However, the term “a right” is not just a way of referring to morally right actions. We do not think that every morally right action is the exercise of a right. What does it add to say that a right action is the exercise of a right? As I noted earlier, there is a distinction between (1) the permissibility of an individual act, (2) a right that a community ought to recognise and (3) the rights a community or sub-community does recognise. Similarly there is a difference between (1) the wrongness of an individual act (so that it might be said to be a breach of moral duty), (2) a duty a community has reason to recognise and enforce, and (3) the duties the community does enforce. The first member of each of these distinctions is an individual act that is morally right or wrong, the other two are classes of acts marked out by abstract descriptions (“returning a thing to its owner”, “killing an innocent person”). Individual instances of a class of acts described in abstract terms will sometimes all be wrong (murder, for instance), sometimes right (e.g. saving a life), sometimes some instances will be right and others wrong (e.g. offering someone something to drink). It may be that no kind of action is always right in its individual instances. (Is it right to save the life of a person who has tried to commit suicide?) But there seem to be some general descriptions that imply pro tanto, though not definitively, that an act of that description will be right. These are the types of action that the community might recognise as actions people have a right to do.
Community recognition strengthens the position of the person with the right (“Rights are Trumps”)[13]. It is as if one can say, “What I am doing belongs to such-and-such a class of acts, and you have agreed beforehand that there is a presumption in favour of the permissibility of such acts—if you obstruct what I am doing you are going back on that agreement”. Community recognition is not simply a speculative acknowledgment that acts of a certain kind are very likely to be morally permissible, it is an assurance to right-holders that, unless there are special circumstances justifying the overriding of the right, other members of the community will accept that the rightness of the act has already been decided. In view of the strong priority of a rights claim, a community would do well not to acknowledge rights too readily. The value of rights as a means of increasing cooperation and reducing conflict is compromised if the rights themselves are too often contentious, either in the sense that many people in the community do not recognise such a right at all or in the sense that the rights are acknowledged in such vague terms that their application is often unclear. It is also compromised if the rights acknowledged are too often overridden in particular cases by contrary considerations. It would be better to acknowledge a reasonably short catalogue of clearly stated and generally agreed rights not likely to be overridden too often, so that the invocation of a right really would settle a dispute—instead on leading to dispute about the right itself.
However, a right will never be absolute. Rights are defined in general terms, and it is always possible that an act of a kind that is generally good is wrong in certain circumstances. People will therefore sometimes judge that an act to which there seemed to be a right in fact should not have been done.[14] Here we can draw on W.D. Ross’s notion of prima facie rights and duties.[15] Ross wrote mostly about duties. We have a duty to keep our promises, but we also have other duties that may come into conflict with the duty to keep a promise—a medical doctor may promise to take his children to the beach but then be called on for a medical emergency. Ross suggests that a rule of duty imposes merely a prima facie duty that may turn out not to be one’s actual duty if there is some overriding consideration. Similarly with rights: in some cases there may seem, prima facie, to be a right, but when we consider all the circumstances we find that the right was not actual.
According to Ross, when a prima facie duty is overridden, there may still be some residual duty. If a promise has been overridden by something more urgent, we may still be obliged to “make up for” not performing the promise. Recognised rights are also like that: if we judge that what the person did who seemed to have the right was in fact wrong, this is not the end of the story. We will not have the duty not to obstruct that we would have had if the right had been actual, but there are residual duties along the lines suggested by Bayle’s treatment of the case of conscientious persons who must be stopped from obeying their conscience. If someone does something wrong thinking that it is within their rights, their good faith should be acknowledged, they should not be blamed in a punitive way,[16] they should not be punished in any way, we should not hold their action against them for the future. About the details of the residual duties there will be disagreement, and indeed the elaboration of these residual duties is part of the on-going development of a community’s positive morality, but I think there will be agreement that people who do something wrong in the honest belief that they were exercising a right should not be treated simply as wrongdoers.
The residual duties are included in the assurance the community gives in recognising a right. We assure one another that even if in the particular circumstances some members of the community think the act is after all wrong, their adverse reaction will be tempered by the duties that are residual even when a right is overridden. It is as if the community says to us something like this: “If you exercise one of your rights, normally we will acknowledge that you have acted rightly, and therefore we will not blame, punish, or obstruct—but even if we decide that in the circumstances your action was not right, if we believe you acted in the honest belief that you were within your rights, we will not punish and we will temper any blame we might otherwise have expressed” and so on. It is a long speech, but I suggest that something like this is tacitly conveyed by the acknowledgment of a right.
Tolerance, and especially religious and moral tolerance, are not found in all communities, at least not in the same degree. We are not so likely to find in medieval authors the reflections we find in Bayle and more recent writers on how to treat people who make honest mistakes, though medieval writers did have something to say about this. (See below.) But even it were only in modern times that moralists have tried to deal with honest disagreements or mistakes about rights, that would not imply a change in the concept of a right. The community’s recognition of a right, the duties triggered by exercise of a right, and the duties that are residual when the exercise of a putative right is judged to be wrong in the circumstances—none of these is included within the concept of a right. The right itself is a kind of action that a person can, generally, rightly do. The term has the same meaning, whether or not everyone in a community recognises the same set of rights, whether or not they all agree about which are the duties on the part of others that the exercise of a right triggers, whether or not they acknowledge any residual duties in cases in which the right is judged to be non-operative.
Tuck and others who have written on this subject have criticised some analyses of rights because they seemed to imply that the terminology of rights could be eliminated altogether.[17] If that is an objection, my analysis may seem open to it, since it may seem that the real work in my account is done by the idea of the duties other people have when the right-holder decides to exercise the right. But let me emphasise that these duties are triggered by the exercise of the right.[18] There is a traditional dispute between “will” and “interest” theories of rights; the “will” theory seems to be correct. To have a right is not simply to be the beneficiary of duties other people have anyway, whatever I may decide to do or not do. The duties of others relating to a right depend on the decision whether to exercise it. If we judge that the act done in exercise of the right is, in the particular circumstances, not morally right, it is, again, the actor’s decision that triggers what I have called the residual duties. This is true even if the right is one that cannot be waived because it exists to enable performance of a duty, for example the rights of a parent. A person with a duty to exercise such a right may fail to exercise it, perhaps through negligence, and then the corresponding duties of other people will not be actual. They may have other duties instead, e.g. to make up for the negligence of the person who ought to have acted.
The
rights of infant children and of
persons in a coma, who cannot decide or take action, may seem an
objection to
this view.[19] These are not typical cases; normally we assume
that people who have
a right will exercise it themselves. I think we have some choice about what to say
in the atypical cases.
We could decide to speak simply of the duties people have to care for
children
and helpless people and not speak of their rights—after all,
there are many
duties that do not arise out of rights. If we do decide to speak of the
rights
of infants, then we may say that their rights are exercised on their
behalf by
some competent person, and it is that person’s decision to
exercise the right
that gives rise to the corresponding actual duties on the part of other
people.
There may also be other duties, not arising from exercise of the right,
but
existing for the sake of the right: for example, it may be that certain
people
have a duty to act on the child’s behalf, it may be that
every member of the
community has a duty to support arrangements for the care of children.
Such duties
do not arise from the exercise of the right, though they exist to
support the
right by making sure that someone will exercise the right on the
child’s behalf.
Exactly how we deal with such cases is open to discussion.
To
sum up the modern conception of a right, as I
understand it: (1) To say that a person has a right to do something
means (a) that
there is a presumption that the act will be morally right or
permissible, and
(b) that the community recognizes, or ought to recognize, that such
acts are,
in normal circumstances, permissible. (2) If the right is actual and
the
right-holder decides to exercise it, then others will have certain
duties—namely,
the duties anyone has not to blame, punish, retaliate or deliberately
obstruct
a morally permissible action, and perhaps, with some rights, a duty to
get out
of the way, to assist, to supply something, etc. (3) If the presumption
of
permissibility is defeated and the right is not
actual in the circumstances, other people will have certain other
“residual” duties,
which I have not tried to define too closely. Points (2) and (3) relate
to
duties arising from exercise of the right and are not part of the
concept of a
right. Point (1) amounts to a “contextual
definition” of the term “a right”.
Medieval writers had a concept of right equivalent to the first of these three points. They did not refer to a defeasible presumption of the rightness of acts of a certain kind, but they did recognise that an act generally right could be wrong in particular circumstances.[20] As far as I know they did not refer to community recognition—I think because they were writing about recognised rights and took recognition for granted. As for point (2), duties triggered by exercise of the right, they certainly thought that we should respond appropriately to the rights of others, for example by feeding someone in danger of starvation, but they do not seem to have elaborated any general account of the duties that correspond to rights. And they did not refer to point (3), what I have called residual duties—perhaps because they did not pay much attention to the possibility of honest mistake. In this matter I think seventeenth century writers did introduce new ideas. Do these differences amount to a change in the concept of a right since the middle ages? Does the addition of explicit references to a presumption, and to the duties of others, amount to a changed concept? I do not think so. The core concept of a right, that it is a kind of action generally permissible, has not changed, and I think the other points are complementary, not a change of direction.
As I suggested earlier, a right in the modern sense is possible if we can specify classes of acts that are generally permissible. Medieval moralists, Thomas Aquinas for example, distinguished between acts good in their species, acts evil in their species, and acts morally indifferent in their species. The phrase “in their species” indicates that the reference was to a kind of act, not to an individual act.[21] An individual act of a kind that is evil in its species cannot be morally permissible under any circumstances. An act good or indifferent in its species, to be morally permissible, needs to be good in all other respects,[22] i.e. in all its circumstances.[23] Of an act that is good or indifferent in its species there is a defeasible presumption of moral rightness. This opens the possibility of recognising a right.
Ius
is the medieval Latin term for a right. Tuck and Tierney have shown
that many medieval
and early modern writers defined a ius
in general,[24]
or this or that particular ius, as potestas licita, a “licit
power”.[25]
Sometimes instead of the adjective they used the adverb, potestas
licite, a “power to licitly” do something
or other.[26]
In the translation John Scott and I made of Ockham’s Work of Ninety Days the word
“power” occurs over 500 times, mostly
as a synonym for “right”. In 75 of these instances
it occurs in the phrase
“licit power”, which Ockham uses especially when
giving a formal definition of
some right.[27]
What
sort of a power could a right be? Medieval thinkers recognised passive
powers
or potencies, e.g. the potentiality of a lump of brass to be moulded
into a
statue. Clearly a right would not be that.[28]
They also recognised active powers, such as the intellect as a power
(or
faculty) of the soul, or the capacity of a natural cause to produce an
effect
(e.g. the power of fire to boil water). A right is not an active power
of this
sort. Often people have power to produce effects they have no right to
produce; on the other hand, having a right gives no power to produce an
effect
that one could not otherwise produce. A drivers licence gives you a
right to
drive, but if you do not have access to a car then you cannot drive.
The
only sort of power a moral right could be, as far as I can see, is the
moral
equivalent of a legal power. If an office holder has the legal power to
do
something, that means that, if they decide to do it and can
actually do it, then they will
not commit any illegality.
Similarly,
to say that someone has a moral right to do something means that, if
they
decide to do it and can actually do it, then (normally) they will not
do anything
morally wrong.[29]
The
key word turns out to be not potestas
but licite, and
potestas is actually redundant—“you have
the licit power” means
that your action will be licit, i.e. permissible, not morally wrong. Thus the medieval conception of a right seems
to coincide with ours.
As I summed up the modern concept earlier, when we say that someone has a right we mean that there
is a presumption that anyone who exercises the right will be doing
something
morally permissible. “Ius
is a power
to licitly…” is equivalent to, “If
someone has a right to do so-and-so, then (there
is a presumption that) if they do it, the act is licit”, i.e.
morally
permissible. Medieval authors would not have been satisfied with a
contextual
definition; they wanted definitions by genus and specific difference,
and in
such definitions the genus is a noun or equivalent. Potestas
is the noun, but the defining idea is that an act done in
exercise of a right is licit.
In modern thought a right establishes a presumption, which in the particular case may not hold. Similarly according to one medieval thinker, namely Ockham, even one of the basic natural rights may possibly be overridden, namely the right to use material things. This possibility is essential to his account of property, according to which the natural right every human being has to use material things may be “tied” by human positive law. On the other hand, the right of the property owner, established by human law, is also subject to exception: in a situation of necessity, when preservation of life requires use of someone else’s property, the owner’s right to exclude other users is overridden.[30] So of both the natural right and the right under positive law, it is true that the right does not hold in certain circumstances. According to Thomas Aquinas and others, acts that are good in their species may be bad in particular circumstances; they would have conceded that the exercise of a right may sometimes be wrong.
We are more concerned than
medieval moralists were with the
possibility of honest mistakes about rights. According to Aristotle,
followed
by medieval writers, a mistake on a matter of fact may excuse an
act—if I
mistake a man for an animal and fire my arrow, I may kill a man but the
homicide may be excusable.[31]
But, Aristotle says, ignorance of a moral principle is never an
excuse—“every
wicked man is ignorant of what he ought to do”;[32]
and most medieval writers agreed.[33]
Ockham did not altogether agree. According to him, some laws of nature
“are inferred
from the first [i.e. fundamental] natural laws by few
even of the experts, with great attention and study, and through many
intermediate propositions. About these even experts sometimes have
conflicting
opinions, some thinking them to be just and others unjust; and
ignorance of
such a natural law excuses… unless the ignorance is affected
or crass and
supine”.[34]
But by and large, the only mistakes medieval moralists were prepared to
excuse
were mistakes of fact, and I do not think any medieval writer
elaborated an
account of residual duties others may have when they reject a
person’s claim to
have been exercising a right.
Let
us consider how the recognition of a right may be justified. There has
been an
accumulation of philosophical material as time goes on, so modern
justifications are often fuller and more elaborately developed. But
otherwise modern
and medieval justifications do not seem to differ much. Both include
claims of
self-evidence and arguments in terms of usefulness.
The
most famous claim to self-evidence runs as follows: “We
hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator
with
certain unalienable rights, that
among these are life, liberty and the pursuit of happiness”.[35]
Medieval writers also claimed self-evidence for principles of natural
law and
by implication for natural rights. According to Thomas Aquinas, the basic
principles of the natural
law are, in modern terms, “analytic”; they are
practical truths per se notae,
“the predicate of which is
contained in the definition (ratione)
of the subject”.[36]
But
pAccording to Thomas other theorems of natural law and morality are
derived by
deduction from the basic principles, and the rules of positive law are
sometimes
derived from natural law “by way of determination”.[37]
Scotus also says that some principles belong to the natural law
“as first
practical principles known from their terms or as conclusions
necessarily
entailed by them. These are said to belong to the natural law in the
strictest
sense”, and they are indispensable and immutable.[38]
According to Ockham, “Nonpositive
moral learning is a demonstrative science” because it
“deduces conclusions
syllogistically from principles that are known either per se
or
through experience… In moral philosophy there are many
principles that are
known per se, e.g., that the will ought to
conform itself to right
reason, that every blameworthy evil is to be avoided, etc.”[39]
John Locke also believed that morality is a demonstrative science based
on
self-evident principles.[40]
ropositions
like “Good is to be sought and evil avoided”,
“The will ought to conform itself
to right reason”, “An innocent person who never did
harm should not be killed”,
etc., do not seem to me to be analytic: I do not see how the predicate
is
included within the definition of the subject. However, they
might be self-evident in some other way, namely in the sense
self-evidence has
in intuitionist theories of ethics,[41]
i.e. in the sense that anyone who reflects can simply
“see”, without needing
argument, the truth and obligatoriness of the basic principles. An
intuitionist
might say that anyone who reflects will see, without argument, that
certain natural
laws and natural or human rights ought to be respected, everywhere and
always.
But
perhaps intuition does not come to bear directly on rights and duties
but only indirectly through the
consequences that
recognizing rights and duties may have. For example, life,
liberty and happiness are obviously
good things, so it may seem self-evident that we should recognize
rights that
safeguard life and liberty and enhance happiness. The self-evidence of
rights may
be reducible to obvious usefulness. So
let us turn to the other kind of
justification, justification in terms of usefulness. Modern writers
have often used
this sort of justification. According to J.S. Mill, for example, “To
have a right… is… to have something which society
ought to defend me in the
possession of. If the objector goes on to ask, why it ought? I can give
him no
other reason than general utility.”[42]
Mill means that something is socially recognised as a right if, on
balance, the
benefits for human happiness likely to result from doing so are likely
to outweigh
the costs that will occasionally result in particular cases.[43]
The
earliest clear
presentation of such reasoning is, as far as I know, David
Hume’s account of
the origin of what he calls the three fundamental laws of nature:
stability of
possession, transfer of possession by mutual agreement, and promise
keeping.[44]
On Hume’s account these fundamental laws are conventions that
people have
agreed to because of expected benefits. He notes that what the
convention
requires or permits may not be beneficial in every case. “But
however single
acts of justice may be contrary, either to public or private interest,
’tis
certain, that the whole plan or scheme is highly conducive, or indeed
absolutely requisite, both to the support of society, and the
well-being of
every individual…. Tho’ in one instance the public
is a sufferer, this
momentary ill is amply compensated by the steady prosecution of the
rule.”[45]
So in the Hume-Mill approach, we recognize various rules that establish
duties
and rights, in the expectation that if these rules are steadily
prosecuted the
members of our community will benefit, all things considered.
Reasoning
in terms of the predominantly good consequences of recognising a
proposed right
is of course at home in Utilitarian and other Consequentialist ethical
theories, but it is not peculiarly consequentialist. It does not imply
or
presuppose that no act is ever good except by reason of good
consequences
(which is what I take to be the basic tenet of consequentialism). In
every
ethical theory, as far as I know, some
acts count as good because of their consequences.
In
deciding what is useful we need to know what is good.[46]
We need some basic principles about the good that are accepted, at
least for
the time being, as self-evident, if not in the sense of per se notae,
then
intuitively. Guided by ideas of what is good, we consider good and bad
consequences in deciding which rights and duties should be recognised.
The
goodness of consequences need not be conceived in terms of pleasure and
pain;
whatever people count as a good consequence may provide a reason for
recognizing
some right or duty. For example, we might regard diversity as a good
thing in
itself (influenced perhaps by what A.O. Lovejoy called the
“principle of
plenitude”)[47],
and
we might regard diversity of languages and cultures as good in itself,
quite apart
from any social benefits: then rights and duties that encourage such
diversity
would count as beneficial—not necessarily to human beings,
but as beneficial perhaps
in another way, as contributing to the rich diversity of the universe.
This
might lead to recognition of rights favouring the preservation of
minority
cultures and languages.
One benefit that gives reason for a community to recognise a right may be amelioration of conflict. Judging whether an individual act is morally right or wrong is not always easy. If I am contemplating some action, I may wish to know beforehand whether other members of my community are likely to accept it as morally right or condemn and obstruct and perhaps retaliate against it as morally wrong or simply as contrary to their interests or wishes. Even if I am reasonably confident that what I am contemplating is morally justified, I might want more assurance that others will think so too. Knowledge of the catalogue of rights and duties recognised in the community gives some increased degree of confidence about the judgments other people are likely to make of the action contemplated. Even before the language of rights was invented, peaceable communities must have had some way of expressing shared understanding of which sorts of behaviour would be likely to be acceptable and which not.
Medieval
writers offered no justification for some natural rights—for
example, the right
to make use of material things to preserve one’s life is, as
far as I know,
never disputed and never justified; it is taken as self-evident. They
justified
other rights in terms of usefulness. For example, they regarded property rights as
being in need of
justification, since laws recognising property impose limits on the
natural
right to use material things. The justification was generally borrowed
from
Aristotle, who argued that private property was useful in preventing
quarrels
and neglect, and useful in other respects: his argument was in terms of
beneficial consequences, not in terms of propositions per
se notae.[48]
I
have been arguing against the view that medieval rights and modern
rights are
rights in different senses. I have suggested that subjective right is a
genus
of which there are many species, and I have claimed that in its generic
sense
the term “a right” in English and in Latin
“ius”
in one of its senses had the same meaning, and I have said what I think
that
meaning is. I have denied that the concept will be different if the
justification offered is different, but I have suggested that in any
case both
during the middle ages and in modern times the same sorts of
justifications have
been offered, and I have said what I think those justifications are. So
far I
have not said anything about natural rights specifically, and it may
seem that
my account of what a right is leaves no room for natural rights. That
is the
topic I turn to next.
A
“natural” right
seems to be the same as a “human” right, and a
human right is a right that ought
to be recognized universally, i.e. as belonging always and everywhere
to every
human being simply as a human being, not as a member of this or that
community.
Similarly natural law is law that applies everywhere and always,
independently
of any human decision; it cannot be entirely obliterated from the human
mind,
but it may be greatly obscured by vice and bad customs, so some people
in some
places may not acknowledge some of its requirements.[49]
There
is an obvious parallelism between the two theories.
One way
of thinking of
natural rights is to say that they are the rights that exist under
natural law.[50]
In early modern political thought a connection was explicitly made
between
natural law and natural rights. They defined the state of nature as the
condition in which human beings live without government and without
positive
law, guided only by the laws of nature. For Hobbes the laws of nature
mandate
individual survival, for Locke they mandate the preservation of all
mankind as
far as possible, and consequently Hobbes’s state of nature is
violent whereas
Locke’s is more sociable: but both agree that natural law is
the only law in
the state of nature. In that state people have rights, the right of
self-defence, the right to enforce the law of nature (according to
Locke), the
right to eat and use material things (even to enslave other people,
according
to Hobbes), and people in the state of nature have the right to leave
that state
by establishing government and positive law. Medieval writers referred
to two early
states, namely the state of innocence and the state between the fall
from
innocence and the establishment of government and positive law. The
second resembles
the early modern state of nature. In the first, the state of innocence,
there
was no conflict—there would have been no occasion for
self-defence, because no
one would have attacked anyone else, no occasion for property, because
people
would have made moderate use of things and not interfered with one
another’s
use,[51]
and no occasion for coercive government.
If the
medieval and early
modern project of a natural law based on principles analytically true
fails because
there are no such principles, where does that leave natural rights? They rest on obvious
usefulness: a natural right is one that ought to be recognised always
and everywhere
because its recognition would always and everywhere have good effects.
Part
of morality seems to be historically variable, and the other moral
rights,
apart from natural rights, belong to the variable part. Perhaps we need
some
conception like positive morality (on the analogy with
“positive law”). I do
not mean just that in some communities people have strange and mistaken
moral
ideas, I mean that there are quite rational and defensible moral
conceptions
that have emerged in their culture, appropriate to their historical and
local
circumstances, which members of those communities ought, really ought,
to
respect. For example, the laws of war, such as the prohibition of
deliberate
attacks on civilians, and in fact the distinction between civilian and
non-civilian,
have not been recognized always, everywhere and by everyone, not only
because
of failures of insight but also because the social circumstances in
which those
things become appropriate have not always existed. There is a medieval
concept
we can use here. What I am calling positive morality would have been
classed by
medieval writers as custom, custom with normative force, and they
regarded such
custom as a kind of positive law. One branch of human positive law was
the ius gentium, the law of
peoples,
consisting in the laws or customs observed by all peoples, or almost
all
peoples. Ockham distinguished three modes of natural law, the third of
which he
calls “natural law on supposition”: it consists in
the moral norms that right
reason suggests on the supposition of certain circumstances.[52]
The prime example is property: the institution of property has not
always
existed, it came into existence by human decision, because of its
obvious
usefulness after the loss of innocence.[53]
Ockham suggests that the ius gentium,
the law of peoples, or at least the most basic part of the law of
peoples,
overlaps with “natural law on supposition” (though
there may also be natural
laws on supposition that do not apply to all peoples and are therefore
not part
of the ius gentium). What I have been calling “positive
morality” could be
called natural law on supposition, and rights could be regarded as part
of that
natural law. Natural law on supposition is adapted to the human
condition after
the Fall. Looking back from our fallen state, we may refer to some
principles
operative in the state of innocence, such as the permissibility of
using
material things, as “rights”, but in the state of
innocence there would have
been no conflict, and therefore no reason for the community to
recognise
rights: people would in each case do what was morally permissible, and
other
people would recognise its permissibility (perhaps after some
discussion); what
the concept of “a right” adds to
“right” would not have been to the point in
the state of innocence and there would have been no occasion for such a
concept.
Natural rights or human rights belong to the ius
gentium, the (almost) universal norms of natural law on
supposition—on the supposition of a fall from innocence and a
state of at least
potential conflict—and the more local and temporary rights
belong to the part
of natural law on supposition that applies in more special
circumstances.
So
we can
say that natural rights are natural in the sense that natural reason
will
suggest to human beings in a situation in which all, or almost all,
human
beings will find themselves, at least after the Fall, namely the
situation of
actual or likely conflict with other people, that it is useful to
recognize
such rights, and also in the sense that once the right is recognized by
the
community, natural reason suggests that people who act on the right
should not
be blamed, punished or deliberately impeded and that (in some cases)
certain
other duties should be performed by other people.
In
the rest of this paper I will criticise an argument meant to show
that the medieval conception of rights is essentially different
from
the modern
conception. The argument goes like this: The meaning of
a
concept depends on the theoretical context in which it is
used—the concept of
rights is “theory dependent”; but the medieval
concept of a right was of
something that enabled one to obey God’s law, whereas the
modern concept of a
right is a claim to self-determination--an assertion of liberty, of
sovereignty, of power to legislate
what is
good for oneself; therefore the iura
that medieval authors talk about are essentially different from the
rights
recognised in modern political thought. Some of my criticism will be
directed against points made by Brian Tierney. Tierney does not
himself subscribe to the thesis that medieval and modern rights
are
essentially different, but in arguing that they are not he emphasises
certain
themes of medieval thought in a way that (I believe) concedes too much
to those
who see rights as an expression of the right-holder’s
sovereignty.
In the 1960s
philosophers of science often emphasised that scientific facts are
“theory
dependent”. Oxygen was not discovered, it was invented.
Observations are always
answers to questions that have some theoretical perspective, not
neutral
reports on how the world is. C.S. Peirce may have been the originator
of this
line of thought, but it was popularised especially by Karl Popper and
Thomas
Kuhn.[54]
Richard Tuck’s remark that the concept of rights is theory
dependent is probably an echo of these ideas in the philosophy of
science. The
notion of theory dependence needs some theoretical context, so that we
can
understand what is supposed to be dependent, how and on what. Those who
claim
that the concept of rights is “theory dependent”
need to explain more clearly
than they have done the meaning and justification for their claim. Our
concept
of right will depend on our theory of what rights are; that is a
truism. But
Richard Tuck and others seem to suggest that the concept of a right
depends on
theories about how rights are justified,
or even on the particular reasons given in justification of a
particular right.
I do not accept this. If there are two arguments for the same
conclusion, that does
not make the conclusion ambiguous. If various different reasons, or
kinds of
reasons, are given to justify various rights, that does not mean that
they are
rights in different senses. There are
different kinds of rights, but that does not make the term equivocal or
analogical; rather, it seems to me, the different kinds of rights are
species
of the same genus. I believe that a single definition can be given for
the
genus, and above I have offered such a definition.
It has sometimes been
said that medieval rights were for the sake of duties to God, modern
rights for
the sake of liberty.[55]
But medieval authors, as Tierney points out, recognized that
people have “choice rights” (as Tierney calls
them), that is, rights to pursue
choices that are not made as a matter of duty. Medieval moralists
recognised
that some acts are permissible but not required, and they recognised
“supererogatory” acts, i.e. acts positively good
and perhaps praiseworthy but
not required, such as to marry or to join a religious order. They
recognised
liberties as well as rights: William of Ockham often refers to
“rights and
liberties” and argues against certain claims to
“fullness of power” on the part
of popes and emperors, that for rulers to have power to impose as a
duty
anything not contrary to divine or natural law is incompatible with the
liberties of their subjects.[56] On
the other hand, modern rights also include duty rights: the
rights of a parent, for example, exist partly to enable parents to do
their
duties by their children. Such rights are not atypical or trivial.
Every
“office” or role in society—teachers,
medical practitioners, police, managers,
etc.—has particular rights that exist so that office holders
can carry out
their functions. Many of these rights are considered important enough
to be
legally enforced, but in any case they are recognised as moral rights,
i.e.
rights that morally ought to be respected. Like the medieval moralists,
we
recognise both liberty rights and duty rights, but this does not mean
that we
have two different conceptions of what a right is. We are not conscious
of
switching from one concept to the other in moving between these two
kinds of
rights. Reference to the reason for recognising the right is not built
into the
conception of a right.
Every right is a permission: to do something I have a right to do is permissible. This is true even of rights that arise from duties—to do one’s duty is permissible. Individual actions that are not wrong are also permissible, even when they are not an exercise of a recognised right. The permission given by a right is in general terms, “Anyone has a right to do such-and-such a kind of action”. It is left to the discretion of the person with the right whether and exactly how it is to be exercised on a particular occasion. In effect the community says to the right-holder, “If you decide to do something that falls within the following class of actions described in general terms, then we will acknowledge that you are acting rightly and not blame, punish or obstruct (unless the circumstances are unusual and the act is wrong in those circumstances, and then we will not blame punitively or inflict any other punishment)” —or something like that. This is a permission.
Insofar as rights exist by law (natural law or law of nations or civil law), the permission to act that a right gives is possible because the law permits some kinds of actions. If a law commands something, then it is permissible under that law. If the law issues no command or prohibition relating to such acts, simply not mentioning them, then they are permissible, on the assumption that what is not prohibited is permitted. This assumption is a presupposition of every law, because law is addressed to persons with intelligence and free will, who are assumed to act at their own discretion except when something is commanded or forbidden. In fact, even then we act on our own discretion: we might decide not to obey; if we decide to obey that will be an act of free choice, an exercise of discretion. For those subject to the law to act on their own discretion where there is no command or prohibition is not a permission granted by the law, as if there were a law at the end of the legal code that says, “Apart from what is prescribed above, you have permission to act as you choose”. Discretion is rather a presupposition to all law, something that is outside the law code and logically prior to it.
Individual discretion is also a presupposition to the whole of ethics. The recognition of rights and duties belongs to the part of positive morality or ius gentium that is concerned with possible conflict. Conflict is not the whole subject matter of ethics, or even its most basic part. In the state of innocence there would have been good actions and better actions and (in principle) an ethics to guide choice and ethically wise leadership.[57] Aristotle’s ethics is only in part concerned with conflict; Aristotle does write on Courage and Justice, which imply the possibility of conflict, but there are many other virtues and there are the topics of friendship and the good life. Aristotle is clear that ethics is concerned with actions people choose; he discusses deliberation and “the voluntary” and considers whether ignorance or force make actions involuntary. Thomas Aquinas follows Aristotle in all this; according to Thomas a rational agent has self-dominion through free will.[58] That human beings have intelligence and free will (in some sense of that term)[59] is a presupposition of ethics in general. There is no need for an ethical system to make a special grant of free choice where there is no ethical command or prohibition, since free choice is presupposed to all morality.
Although a law code is not the source of a permission to do what the law does not prohibit, a code may include permissive laws.[60] These are laws that say, in effect, “Notwithstanding the provisions of this code that forbid so-and-so, in such-and-such circumstances it is not forbidden”.[61] A permissive law may also correct a presumption that may seem to be established by the existing laws. In one way or another, a permissive law is a modification of the implications of the rest of the body of the law. But it is not only by permissive laws in the strict sense of the term—laws that allow something notwithstanding some other law or legal presumption—that actions are legally permissible; an action may also be legally permissible either because it is commanded by the law or because the law does not prohibit it.
Brian Tierney has argued for the importance in medieval and early modern rights theories of the concept of permissive law and connected it with individual sovereignty or liberty.[62] The texts he has gathered show that many medieval writers referred to permission under natural law. It is not always clear that they meant that natural law contains permissive laws in the strict sense; it is possible that sometimes they mean that the natural law leaves some matter open simply by being silent about it.[63] It does not seem that natural law could include permissive laws in the strict sense; the inclusion of a permissive law in a code implies that some other law needs correction, and natural law has always been thought of as a ideal. But perhaps some writers did mean to include permissive laws in the strict sense in the content of the natural law. Various writers list: commands or precepts, prohibitions, demonstrations or counsels, and permissions. The term “demonstration” is not easy to interpret. It is not, I think, merely a permission. Rufinus, who introduced the term, seems to mean a recommendation or counsel or statement of an ideal.[64] In his view, common possession of all things is not simply permitted by natural law but even recommended; but it is not commanded—otherwise property would not be legitimate.
The legitimacy of property is the problem that gives permission its importance.[65] Isidore’s list of what natural law includes, quoted in Gratian’s Decretum,[66] includes both common possession of all things and the respect for property, which seems inconsistent. There were various medieval solutions:[67] according to Rufinus, common possession is the ideal, but property is not prohibited. According to Thomas Aquinas and many Thomists, the natural law permits (apparently as equally satisfactory) both common possession and property, whichever human beings decide. According to the Franciscans, community was required in the state of innocence and may be permitted after the Fall for communities (such as religious orders) whose members are striving for perfection,[68] but for most communities after the Fall the establishment of the institution of property is a matter of precept. In their view, natural law gives different directions for different conditions of human life.
But however we decide between these theories of property, and whether or not we think that natural law contains permissive laws in the strict sense defined earlier (i.e. laws that explicitly make exceptions to other laws or to presumptions suggested by the laws), there is no doubt that natural law, like other bodies of law, presupposes that some actions are permissible and left to our discretion. Whether or not we hold that natural rights derive from natural law, whether or not we hold any theory of natural law, whether or not we recognise any rights at all, human freedom is not in dispute; and therefore it cannot be claimed that the adoption of any particular theory of rights or natural law is favourable to liberty—freedom is a presupposition of the deepest level of morality, before we come to rights and duties.
Tierney quotes Savigny’s remark that a right was “the territory in which his [an individual person’s] will prevails”, and also Hart’s remark that a right is a kind of “sovereignty over the other’s will”.[69] I think that such language is extravagant and misleading. It is true that the recognition of a right establishes a “territory” in which the right-holder’s will prevails, in the sense that every such right is stated in general terms, leaving to the right-holder the decision whether and how to exercise the right, and that the right-holder’s decision may trigger duties on the part of other people. But the word “prevails” and the word “sovereignty” suggests domination over others. The ascription to a person of a right does not give that person dominion over anyone else. The right-holder does not legislate for others or subordinate others to his or her will. The duties of others triggered by the right-holder’s decision follow from the general moral principle (perhaps part of natural law, but at any rate not legislated by the right-holder) that permissible acts are not to be blamed, punished or deliberately obstructed. If there is a legislator, it is the community, when it recognises certain rights available to anyone who qualifies, a recognition made not in view of any particular person’s benefit but for the benefit of all. Rights do not give us dominion over one another, they belong to us as equal citizens in a community of friendship and cooperation.[70]
It is sometimes said that rights are important, especially in modern thinking, because they secure liberty. There are “choice rights”, to use Tierney’s term, and they figured in medieval thinking as well as modern. But even “duty rights” involve choice: as I said before, exercise of a right requires choice, decision, an act of free will. We can find ourselves in situations in which we say we have no choice. This is never literally true. What we mean is that there are no good options. Sometimes the lack of options may be due to physical circumstances, but sometimes it is because of the demands of duty: we find that whatever option we think of, alternative to the thing we do not want to do, there is some rule of duty forbidding it. We would prefer not to be in such a situation, though we cannot expect we never will be; but the shorter and less onerous the list of duties, the less restriction there will be on the range of choice. Perhaps this gives the sense of the liberty that Mill wrote On Liberty to defend. Mill wanted to keep the catalogue of socially recognised and enforced duties from getting out of hand, so as to preserve an area of liberty—that is, situations in which we have more than one permissible option—in which we are free to live according to our own discretion.[71] Mill rejected with scorn the idea that duty is all-embracing.[72] (There is some irony in this, since the “act Utilitarian” theories developed under Mill’s influence left no liberty of choice except when there happen to be more than one equally beneficial option.)[73] This sort of liberty may be more highly valued now than it was during the middle ages, but it was not ignored by medieval thinkers. Ockham[74] and Thomas Aquinas[75] praised the “liberty of the gospel law” as a liberty in which many matters are left to the discretion of individuals. To secure liberty in this sense it is not necessary to assert any special right, it is enough to resist the imposition of unnecessary and unjustified duties.
Modern talk about the value of liberty is sometimes coloured by the idea that people must be free to choose their own personal conception of the good, that human persons are sovereign in the sense that they can, arbitrarily, decree that this or that is good, and that no one else can impose on them any other conception of good than the one they freely choose.[76] It seems to me that this idea of a private and self-decreed morality is incoherent. Morality at least purports to be something objective or inter-subjective. We may disagree about morality, we can easily be wrong about it, we should therefore be open to other people’s ideas; but when we disagree we are disagreeing about something that is in some sense “there” to be disagreed about. If there is no objective morality, then there is no morality. The claim to objectivity cannot be excluded from conceptions of rights. When I invoke a right, I am claiming that others should recognise my action as right and that they should not obstruct (etc.): if I were saying simply that I regard my action as right, whatever they may think, and that I want them not to obstruct, whatever they may think or want, then certainly I would be attempting to exercise an arbitrary sovereignty, but there could be no reason why anyone else should defer to my claim. The language of rights is inescapably inter-subjective. Those who want to adopt the theory that the good is whatever they say it is ought to give up the language of rights.
In this paper I have criticised a number of philosophical opinions that seem to influence study of the historical development of theories of rights, and in particular the interpretation of the cultural significance of various developments. I have argued that the invention or introduction of the language of rights did not newly attribute to people freedom of choice (this was all along presupposed to all morality and law), that the language of rights does not attribute to the right-holder sovereignty or legislative power or dominion over other people, that it does not attribute to people the capacity or entitlement to make up their own private conception of what is right or good. In these respects I do not find any conceptual break or “watershed” between medieval and modern rights, but rather development and elaboration along the same lines. A noteworthy modern development is the attempt to work out how we should respond to radical differences of religious and ethical conviction. Medieval moralists were not entirely intolerant, but they did not reflect much on radical religious conflict, though there was in fact plenty of it in their own world. During the sixteenth and seventeenth centuries religious conflict became a burning issue and many writers addressed it. Of those I think Pierre Bayle was the most successful. Clearly this is an issue of great importance for our time and the contributions made by Bayle and his contemporaries deserve our attention.
What difference would I like to see in the historical treatment of natural rights? I think medievalists should be cautious about claiming that rights were a medieval invention. It seems likely that every peaceable community, even if it did not use language equivalent to our language of rights, even if it had no convenient terminology, must have had some way of assuring people beforehand that certain kinds of actions would be well received and of warning them that certain other kinds of actions would be opposed. How that was done, and what kinds of actions were respectively encouraged and discouraged, no doubt differed from one community to another, partly as a result of difference in the circumstances of their lives. Historians should look seriously for more ancient equivalents to the language of rights. I would like to see medievalists give more attention to the medieval division between natural rights and other rights and to medieval conceptions of the ius gentium; I do not think medieval authors got these things clear, or at any rate their views do not seem clear enough to me. In studies of rights in the modern world, I would like to see less tribute paid to romantic, egoist or existentialist rhetoric about the value of pursuing one’s own, idiosyncratic conception of the good life. True, some rights do secure liberty, every right secures liberty in some sense, but there is nothing especially valuable about the use of liberty to pursue idiosyncratic ideas: even if there is, rights secure liberty for philistines and for original souls alike—there are no special rights for the latter.
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