can citizens into mere subjects of an

unbridled judicial elite.

On Natural Law
and Natural Rights
RALPH MCINERNY
The Idea of Natural Rights: Studies on
Natural Rights, Natural Law and
Church Law 1150-1625, by Brian
Tierney, Atlanta, Georgia: Scholars
Press, 199 7.380 pp.
Liberty, Right and Nature: Individual
Rights in Later Scholastic Thought,
by Annabel S. Brett, Cambridge:
Cam bridge University Press, 199 7.254
PP.
IN ROMAN LAW, right or ius was chiefly a
property of things, their proper relation,
not a claim residing in individual agents
because of their status as human beings.
This has its roots in Aristotles concep
tion of the right or just thing, to dikaion.
In recent centuries the notion of right
has become all but synonymous with
claim-rights which inhere in persons as
such and which political arrangements
must take into account. Everyone agrees
that this is a noteworthy change. How it
came about is an intriguing historical
question. No one has cast more light on
that question than Professor Brian
Tierney. Theldea ofNaturalRights brings
together hitherto ungathered essays,
many of them quite recent. Students of
Tierney would be grateful only to have
~~~ ~
h ~ ~ w MCINERNY is MichaelP. CraceProfessor
ofMedievalStudiesanddirectorof the Jacques
Maritain Centerat the UniversityofNotreDme.
He is the author of many scholarly works as
well as popular fiction.
easy access to Villey, Ockham and the
Origin of Individual Rights, so that the
dozen other studies make this book a
feast indeed.
A few years ago in Rome, I picked up
Michel Villeys Questions de saint Tho-
mas sur le droit et lapolitique. It was anew
book (1987) and the author, too, was new
to me. 1 read the book on the plane com-
ing home and was enthralled. The book
is largely a meditation on key articles in
Aquinass Treatise on Law. Villeys a p
proach was fresh, unusual, and, I per-
ceived, related by way of modification to
previous things he had written. During
the next months I acquainted myself with
some aspects of the vast scholarly pro-
duction of Villey. Did others know of
him? In 1988 I was a visiting professor at
Cornell and at a dinner party found my-
self seated next to Brian Tierney. The
name was legendary, but at the time I
knew his work scarcely better than I had
known Villeys. At a given point in the
conversation, it occurred to me to ask
Tierney if he knew the work of Villey. I
will not say that he levitated with delight,
but clearly I had put the right question.
To that point, Tierney had been witty
and entertaining; from then on, he be-
came authoritative and dazzling. A few
days later he gave me an offprint of the
study of Villey that figures in chapter one
in this collection.
If one were to seeka model of engaged
objectivity in a scholar, this essay would
serve. Villey died in 1988 and it is doubt-
ful that he was treated more fairly by St.
Peter than he had been by Tierney. It is
possible, indeed tempting, to pluck ar-
resting sentences from Villey and try to
read everything he wrote in their light.
Tierney paid Villey the enormous com-
pliment of seeing that the French
scholars thought hadaltered, that some-
ti mes he expressed himself more
apodictically thanatothers, that his work
represents a precious and complicated
achievement, however flawed. Villey had
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a tendency to see the history of law as a
declension from the clarity of Roman
law. Things began to go bad in the Middle
Ages, went really bad in Second Scholas-
ticism, and, in modern times, have led to
hilarious declarations of rights which
seem to be little more than whimsical
wish-lists. There is something to this ac-
count-and certainly the culminating
criticism is well-founded.
It is in the historical period Tierney
has made his own that Villey has located
the beginning of the dissolution. Villey is
led, in his reading of Aquinas, to insist on
a distinction between ius and lexwhich,
while there, does not permit the use of
natura hurnana rnutabilis est that Villey
wishes to make. Tierney rightly summa-
rizes, I t seems, then, that Villeys case
fora consistent distinction between droit
nature1 and loi naturelle in Thomas can-
not be sustained. If Villey had a keener
appreciation for the analogous use of
terms in Thomas, something exhibited in
Thomass use of both lex and ius, he
might have maneuvered more effectively
through the texts. It is this either/or ten-
dency in Villey which exposes him to
criticism and which dims what is un-
doubtedly a major scholarly contribu-
tion.
Admirers of modernity might be sup-
posed to be ready to accept the view that
only recently have we managed to get it
right about human beings and social and
political relations. Declarations of rights
inherent in human beings as such are a
starting point that set the modern off
from the premodern. Critics of moder-
nity might correspondingly agree on the
contrast but insist that the modern move
is open to devastating objections. Villey,
as Tierney points out, was a structural-
ists before the fad, and insisted on the
need for a context, a network of prac-
tices, to provide the habitat of what is a
right. Somewhat similarly, Alasdair
MacIntyre was able to dismiss the very
concept of rights by arguing that the
carrier of rights is the unencumbered
individual; but there are no unencum-
bered individuals; therefore rights do
not exist, there being no carriers of them.
Moral concepts, MacIntyre insisted, re-
quire traditions and practices for their
very meaning.
William Ockham provides Villey with
the definitive turn away from the classi-
cal notion of right. Nominalism and sub-
jective rights are logically linked by Villey,
and this is a link that Tierney effectively
questions. In doing this, he makes a
broader philosophical point. We can
define the relationship of parents and
children in terms of an objectively right
order. Or we can define it in terms of
moral precept-Honor thy father and
thy mother. But we could also define the
same relationship by saying that parents
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have a right to the respect of their chil-
dren. Villey-like some disciples of Leo
Strauss, Tierney adds-is simply wrong
in saying that the notion of subjective
right is logically incompatible with clas-
sical natural right. As proof of their com-
patibility, he cites the work of J acques
Maritain and of J ohn Finnis.
If Villeys view is that the Middle Ages
saw the beginning of the disintegration
leading to the chaos of modern legal
theory, Tierney has a decidedly different
view. He counters Villeys denial that
non-nominalist thinkers adopted subjec-
tive rights and then says of subjective
rights that it was a characteristic prod-
uct of the great age of creative jurispru-
dence that, in the twelfth and thirteenth
centuries, established the foundations
of the Western legal tradition. For all
that, he grants Villey that there have
been abuses of rights language by many
modern theorists, but invokes against
him the Thomist principle that abusus
non tollit usum.
One of the great merits and attrac-
tions of Tierney as ascholar is that, while
insisting on the flaws of his opponents
overall position, he accords him the re-
spect of having a basis for what he says
and thus in the end finds room for a
modified Villey within his own approach.
What now of Tierneys own position?
The passage quoted above could con-
vey the idea that there are different lan-
guages in which we can express the same
legal truth-those of objective right,
moral precepts or subjective rights.
Tierney is clearly impressed with the
work of Maritain in showing the funda-
mental compatibility of natural law and
natural rights. As with the work of Finnis,
this suggests a kind of conceptual or
logical equivalence of the modern and
the premodern. Of course, if subjective
rights are present even in Roman law,
this contrast of the modern and pre-
modern may seem tendentious to the
degree that it is defined in terms of sub-
jective rights. But is there anyone who
would wish to say there is not a differ-
ence in emphasis in Aristotle and Roman
Law, on the one hand, and those who
draw up universal declarations of human
rights? Surely not. The claim of concep-
tual equi val encethat is, the claim that
one can express rights in the language of
natural law-is a logical and not an his-
torical point. The presence here and there
in antiquity and in the early Middle Ages
of an appeal to subjective rights must
always be linked to the more fundamen-
tal view that is captured in the theory of
natural law. I t is not an alternative to it,
but a feature within it. The achievement
of Maritain in Man and the State, arguing
that natural law and natural right are
compatible, is undeniably impressive,
and Chapter 8 of Finniss NaturalLawand
Natural Right is perhaps the best avail-
able statement of the mutual implica-
tions of rights and duties. But what does
this prove?
It is one thing to say that the tradi-
tional outlook, call it the natural law uni-
verse, can accommodate the notion of
subjective rights; these can even be re-
garded as evolving naturally from it
(Tierney) and making a major contribu-
tion to it (Finnis), but this does nothing
to address the fact that modern natural
rights theories were advanced as alterna-
tives tonaturallaw. The natural law theo-
rist may be able to express his views in
rights language, but would the propo-
nent of rights be able to repay the com-
pliment? Of courseTierney does not want
to suggest that the developments he has
done more than anyone else to chronicle
and interpret amount to little more than
the fashioning of an alternative language.
He speaks from time to time of excessive
proponents of subjective rights and
seems to mean those who do not have a
view of the human agent which is the
source of those rights. But what is one to
do with proponents of subjective rights
who are skeptical of or dismissive of the
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very notion of nature or of a given order
of things? Is MacIntyre perhaps a better
reader of the signs of the times in seeing
conceptual chaos in rights claims that
are unanchored in a human nature?
Tierneys Conclusion to this collec-
tion makes it clear that he needs no
instruction on the excesses and limita-
tions of rights talk. Furthermore, by in-
voking Pope J ohn XXIIIs Pacem in terris,
he makes clear his own understanding.
Rights and duties flow from the percep
tion of human beings as endowed with
intelligence and free will. The popes of
our age, who have embraced so enthusi-
astically the idea of natural rights, after
their predecessors condemned it for
many years as an irreligious, Enlighten-
ment aberration, have been returning,
unwittingly perhaps, to a tradition rooted
in Christian jurisprudence and philoso-
phy of the Middle Ages. But the popes
who adopt the language of rights and
those who condemn them are not in dis-
agreement with one another. Rights are
condemned when they are forwarded on
Enlightenment assumptions hostile to
and incompatiblewith Christianity; rights
are invoked insofar as they are attached
to the perception of human nature
Tierney cites. He can sustain his irenic
stance only by suggesting that it was the
epigones of the Enlightenment who in-
voked, doubtless unwittingly, a tradition
rooted in Christian jurisprudence and
philosophy.
Tierney sees two major problems for
human rights. First, the almost absurd
inflation of rights talk that had caught the
attention of Villey, MacIntyre, Mary Ann
Glendon and others. Second, in many
places the most elementary rights are
denied subject peoples. But it is the con-
ceptual problem that remains the most
fundamental. However true it may turn
out to be that the medieval roots of rights
theory of which Tierney has been the
principal historian is not a product of
atomistic individualism, however true
it is that rights theory could in the medi-
eval period coexist with quite different
metaphysical outlooks, the common be-
lief in man as created in the image of God
underwrote the conviction in the exist-
ence of a human nature. Tierney has
argued that Ockhams nominalism is logi-
cally independent from his contributions
to incipient rights theory, and vice versa.
But the questi on remains whether
Ockhams metaphysics is not radically
incompatible with the basic underpin-
ning of his moral theory.
Professor Bretts Liberty, Right and
Natureconcentrates on individual rights
in later Scholastic thought. She gives us
a close study of a pair encountered in
Tierney, dominium and ius, and argues
that while originally equivalent in the
Franciscan poverty literature and pro-
viding a link between property and lib-
erty, and rooted in the positive dignity of
man, the equivalence becomes diluted in
the casuisitc literature to a juridical hold
over a thing or person and was expanded
beyond spiritual beings to all of nature.
Nonetheless, Francesco de Vitoria ig-
nored this diluted casuistic understand-
ing and returned to the earlier reliance
on spirituality, reflexivity, and liberty.
The chapters concentrate on particu-
lar centuries, but do not follow chrono-
logical order; the chapter on the four-
teenth century precedes the chapter on
objective right in the Thomist tradition,
but then the account extends beyond the
thirteenth century. Chapters three and
four are particularly interesting, but then
thewhole bookis interesting. Brett brings
a sharp and knowledgeable eye to every-
thing she treats, and casts new light on
even apparently well-worked subjects.
Her pages on the relevant chapters from
the Summa theologiae on i us and lex are
packed with sentences and paragraphs
which could have been expanded far
beyond the space she devotes to them.
This gives them at once a praiseworthy
pithiness and a teasing tendentiousness.
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Often this is because she accepts with-
out rehearsing them the arguments of
others. For exampl e, she accepts
Gauthiers claim that Thomass commen-
taryon theSer,tencesrelates to the rnoral
part of the Summa theologiaeas expositio
to quaestiones. And, in agreeingwith J ohn
Finnis that the natural inclinations so
important in the Summa theologiaelalIae,
q. 94, a.2 do not involve a hierarchy, she
says they do involve a series. And then
we find this sentence: Thus those things
to which irrational natures incline and
which constitute their goods are equally
goods to which rational natures incline
and, and not in any sense lesser or subor-
dinategoods.This is anonsequiturwhich
trades on the amphibolous use of
equally. But it would be churlish to
leave the impression that Bretts is any-
thing other than a book from which any-
one can learn and which proceeds with a
care and taste for the truth that is wholly
admirable.
Both Tierney and Brett, in their differ-
ent ways, subscribe to the view that the
once received opinion about the ravag-
ing effects of nominalism has been over-
turned by recent scholarship. (Aversion
of this can be found in Servais Pinckaerss
The Sources of Christian Ethics [ 19851,
191-323). Still, both scholars refer respect-
fully to Michel Bastits La naissance de la
loi moderne, which is an energetic rear-
guing of the thesis of Villey. It could be
said that Bastit does not confront the
obstacles to his thesis. It must be said
that the whole matter of the relation
between casuistry and moral theology,
between the moral theologians and the
expositors of the Nicornachean Ethics,
and of the correct comparison between
members of the two great mendicant
orders, is very much still on the table. On
the outcome of that continuing discus-
sion will depend what can defensibly be
said of the relationship of modernity to
its predecessors. The magnificent schol-
arly work of Brian Tierney and now
Annabel Brett will be at the center of the
discussion. Kibitizing will be those who,
like the reviewer, retain a perhaps vis-
ceral preference for the Michel Villey
approach.
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