AN ANALYSIS OF THE USE OF RIGHTS

LANGUAGE IN PRE-MODERN

CATHOLIC SOCIAL THOUGHT

BERNARD V. BRADY

University of St. Thomas

St. Paul, Minnesota

CONTEMPORARY CATHOLIC social thought, both in official documents and in commentaries, has focused quite extensively on describing the use, meaning and justification of human rights. Indeed, as one significant contributor has suggested, human rights have become, since the Second Vatican Council, the "central norms of social morality." 1 In all of this concern for the place of rights within Catholic thought, however, very little work has been done to explore the pre-modern roots of this moral category. This essay attempts to address this issue. The essay has three parts. The first section considers characteristics of rights language within the thought of Thomas Aquinas. The second section looks at the use of rights within the intriguing controversy of the late thirteenth century surrounding apostolic poverty. Finally, developments in Catholic rights language found in the work of the Renaissance figures Vitoria and Suarez are studied. The essay narrates the development in the use of rights within the tradition while suggesting certain threads of consistency.

Thomistic Characteristics of the Use, Meaning and

Justification of Rights Language

In the social philosophy of Thomas Aquinas (1225-74), the concept "ius," or "right," has an important and nuanced role.

1 David Hollenbach, "Both Bread and Freedom: The Interconnection of Economic and Political Rights in Recent Catholic Thought," in Human Rights and the Global Mission of the Church, ed. Arthur J. Dyck (Boston: Boston Theological Institute, 1985), 31.

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Generally, jus suggests an objective reality, as when it is used in the concept of ius naturale, yet Thomas often uses the word interchangeably with " lex ", or "law ", a word fundamentally referring to the rational expression of such an objective reality.2 Most significantly from a modern perspective, Thomas also describes this objective reality of ius within the context of personal relations. Specific persons have specific rights in accord with their position within society. This section will examine the meaning of the term ius in Thomas. It will be shown that Thomas used jus primarily in an objective sense, that is, in terms of "that which is right," or " that which is fitting." It will also be suggested that Thomas used ius in something of a subjective sense as referring to personal moral claims. This latter use was, however, dependent on a prior understanding of "that which is right."

Right," says Thomas, "is the object of justice."3 Operating from the principle that if one knows the end or the object of a thing one can know the reality of that thing, Thomas introduces his treatise on justice4 with a consideration of the reality toward which justice tends--the right. As with the other cardinal virtues, justice seeks to actualize the right or the fitting as it orders a person in relation to some object. The distinguishing characteristic of justice is that the object under consideration is another person. He writes, "Accordingly that which is right in the works of the other virtues, and to which the intention of the virtue tends as to its proper object, depends on its relation to the agent only, whereas the right in a work of justice, besides its relation to the agent, is set up by its relation to others."5

Thomas describes justice as a habit flowing from a rightly ordered self which in turn rightly orders one's relations with others. That is, the just person, through "a constant and per-

2 Thomas Aquinas, Summa Theologica, 2a, 2ae, q. 57, art. 1, trans. Fathers of the English Dominican Province, 3 vols. (New York: Benzinger Brothers, 1947). See also Thomas Gilby, The Political Thought of Thomas Aquinas (Chicago: The University of Chicago Press, Midway Reprints, 1973), 121.

3 Aquinas, Summa Theologica, 2a, 2ae, q. 57, art. 1.

4 Ibid., 2a, 2ae, q. 57-122.

5 Ibid., 2a, 2ae, q. 57, art. 1.

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petual will,"6 gives to another that which is due in accord with some kind of equality"7 "adjusted to or commensurate with

. . . [the other] person."8 Even as Thomas states, "the act of justice in relation to its proper matter and object is indicated in the words, 'Render to each one his right,' "9 he is speaking of right in an objective sense. The right is the fair, equitable, proper, fitting, and just; 10 and as such it is normative. All relations (including one's " relations " with oneself) are to be rightly ordered so as to reflect that which is right.

Thomas also speaks of ius in terms of specific things that are due to particular persons. He uses ius to describe moral claims, powers and privileges to which a person is legitimately entitled.

P. H. Hering cites fourteen such instances.11 For example, Thomas speaks of the right of ministers to receive tithes,12 the right of the man in Matthew 13 :44 who found a hidden treasure in a field to possess the whole treasure after he bought the field,13 the right of a baptized person to '' approach the Lord's Table,"14

and the right an adopted child has of " succeeding to the adopter's goods." 15 Some specific claims, however, are illegitimate. Thomas states, for example, that a slave " has no right to rebel "16 against a master, and a "wife has no right to ask" her husband to pay the debt of marriage if he is "rendered incapable of pay-

6 Ibid., 2a, 2ae, q. 58, art. 1.

7 Ibid., 2a, 2ae, q. 57, art. 1.

8 Ibid., 2a, 2ae, q. 57, art. 3.

9 Ibid., 2a, 2ae, q. 58, art. 1.

10 See Elmer Gelinas, "Ius and Lex in Thomas Aquinas," The American Journal of Jurisprudence 15 (1970) :154-170.

11 P. H. Hering, "De iure subiective sumpto apud Sanctum Thomam," Angelicuin 16 (April 1939) : 296-298. Hering claims that Thomas's use of such terms as "licitum est, potestas, facultas, posse" suggests Thomas did grasp the meaning of subjective right even beyond his explicit use of ius.

12 Aquinas, Summa Theologica, 2a, 2ae, q. 87, art. 3.

13 Ibid., 2a, 2ae, q. 66, art. 5. See also 2a, 2ae, q. 62, art. 1 for right of dominion.

14 Ibid., 3a, q. 67, art. 2.

15 Ibid., Suppl. q. 57, art. 1.

16 Ibid., la, 2ae, q. 58, art. 2.

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ing the debt . . . through having already paid the debt." 17 These examples suggest that certain persons can (or cannot) make certain claims on others; that is, certain persons have (or do not have) specific rights in relation to other persons.

There is a creative tension in Thomas's thought between objective and personal uses of ius. An important example of this, which bears heavily on modern Catholic social thought, is Thomas's discussion of private ownership. After arguing that persons, on account of human reason and will, have "a natural dominion over external things," 18 Thomas states that it is fitting both for persons to own property--" this is necessary for human life " 19--and for persons to possess things in common so one "is ready to communicate them to others in their need." 20 The former statement is justified by Thomas on what might be called reasons of social economy, for when persons own property "a more peaceful state is ensured," '' human affairs are conducted in a more orderly fashion," and the community is better off because persons '' are more responsible for goods when they possess them." 21 Private ownership was understood to be the result of human agreement or human authority negotiating the order of goods over which persons by their very nature have dominion.22 Quoting Aquinas,

. . . if a particular piece of land be considered absolutely, it contains no reason why it should belong to one man more than to another, but if it be considered in respect of its adaptability to cultivation, and the unmolested use of the land, it has a certain commensuration to be the property of one and not of another man.23

17 Ibid., Suppl. q. 64, art. 1.

18 Ibid., 2a, 2ae, q. 66, art. 1.

19 Ibid., 2a, 2ae, q. 66, art. 2.

20 Ibid. See also la, 2ae, q. 95, art. 5 for "common possession of all things."

21 Ibid.

22 Gilby comments in The Political Thought of Thomas Aquinas, 155, "Some kind of right to property [for Thomas] resided in the individual not granted by the organized group . . . Its extent, here more here less, was to be settled by social authority."

23 Aquinas, Summa Theologica, 2a, 2ae, q. 57, art. 3.

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Thomas justifies private ownership of property by appealing to the nature of the person in relation to creation, to "prudential" reasons (modern sense of the term) of social economy and, more specifically, to the authority of human reason. These justifications hold so much weight that "the theft of a small thing such as a needle or a quill" may be a mortal sin.24 Thus, it is right (read: fitting or proper) that people privately own things, and subsequently there are conditions warranting personal rights (read: moral claims) to own specific things.

The other fitting relation between persons and property is that possessions ought to be held in common so persons can care for the poor. People own temporal goods and are to use such goods to satisfy personal needs, to provide for the needs of those in their charge and to practice stewardship.25 Though Thomas cites Basil and Ambrose, he might well have called on a litany of Patristic writers to proclaim the significance of this obligation.26 The obligation to care for the poor is not a counsel for Thomas, nor is it an option; it is law.27 The use of one's private possessions is conditional; we must use our goods to help those in need.

The conditional nature of the right to private property is illustrated by Thomas through the following examples. A judge can order that one's property be confiscated.28 Princes can " exact from their subjects that which is due to them for the safe-guarding of the common good." 29 Victors of a just war may claim the spoils.30 Finally, and perhaps most interesting, it is lawful for a person "in immediate danger . . . to succor his own need by means of another's property." 31 Rectifying injustice, the common good, and the extreme need of another are all instances

24 Ibid., 2a, 2ae, q. 66, art. 6.

25 Ibid., 2a, 2ae, q. 32, art. 5.

26 See Peter C. Phan, Message of the Fathers of the Church: Social Thought (Wilmington, DE: Michael Glazier, Inc., 1984), especially 28-29, 35-41.

27 Aquinas, Summa Theologica, 2a, 2ae, q. 32, art. 5.

28 Ibid., 2a, 2ae, q. 66, art. 5.

29 Ibid., 2a, 2ae, q. 66, art. 8.

30 Ibid.

31 Ibid., 2a, 2ae, q. 66, art. 7.

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which negate an individual's right of dominion and justify the transferal of that right (and the property) to another. The owner of property can make valid claims and has valid interests to protect against others, but others likewise can make valid claims against the owner.

Legitimate personal claims are located for Thomas within objective social positions. The ultimate justification for these claims rests on the authority of God as evident in the natural ordering of human existence, that is, on Thomas's natural law theology. Though these claims, says Thomas (using lex and ius interchangeably here), " are of human right," 32 that is, they are of human law, the justification for such claims does not rest on the particular law of a society any more than it rests on the autonomous authority of the particular individual. The claims cited above are legitimated for Thomas by the fact that they are made by members of society in reference to their position in society. Thus clergy ''have a right to the expenses of their ministry,"33 and those who rightly own property have a '' right of dominion over their possessions.34

The claims persons, including the prince, can make are limited by the objective elements of justice. As Frederick Copleston states:

The right of any creature to direct another, whether it be the right of the father of the family over the members of the family or of the sovereign over his subjects, is founded on reason and must be exercised according to reason: as all power and authority is derived from God and is given for a special purpose, no rational creature is entitled to exercise unlimited, capricious or arbitrary authority over another rational creature.35

For Thomas, personal rights could not be understood apart from the objective right. Such claims presupposed an interpretation of

32 Ibid.

33 Ibid., 2a, 2ae, q. 87, art. 3.

34 Ibid., 2a, 2ae, q. 62, art. 1.

35 Frederick Copleston, A History of Philosophy, volume 2, Mediaeval Philosophy: Augustine to Scotus (Westminster, MD: The Newman Press, 1962), 421.

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"that which is right." Thus the list of rights Hering cites is relative to specific contexts. They are claims describing what is appropriately due to specific persons in specific relationships.

The use of rights language that characterized medieval feudalism (found in various manifestations from the ninth through thirteenth centuries), is, on a formal level, similar to Thomas's use of rights. Feudal rights, grounded on contracted relations between lords and vassals, were publicly recognized claims ordering specific areas of social relations. Charles McIlwain, commenting on feudal societies, says, " Theoretically there was never a period when rights were more insisted upon." 36 Feudal ideology revolved around the concept of the "fief," that is, an object or a claim which by definition moved from person to person and yet bound persons in specific relations. "Everything of value was brought under the conception of the fief, one's land, one's personal status, one's office.37 The lord and prospective vassal would enter into an agreement concerning a fief wherein the lord maintained a claim on the fief while granting the vassal a conditional interest hinging on the fulfillment of stipulated obligations. Though feudalism has been characterized as a social system based on a strong sense of loyalty among vassals to a lord, it is perhaps better understood as a social system founded on contracted relations. The fief contract dictated a relationship between a lord and a vassal governed by mutually recognized rights and duties that were protected through a court system to which both parties had recourse.38

A contemporary critique of the use, meaning and justification

of rights in medieval theory and practice would suggest two significant qualitative limitations. First, neither the rights of which

36 Charles H. McIlwain, The Growth of Political Thought in the West:

From the Greeks to the End of the Middle Ages (New York: The Macmillan Company, 1932), 182.

37 Ibid., 181.

38 Ibid., 180-182, 190. See also, R. W. Carlyle and A. J. Carlyle, A History of Mediaeval Political Theory in the West, volume 3, Political Theory From the Tenth Century to the Thirteenth (New York: Barnes and Noble, Inc., 1928), 19-74, 179-185.

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Thomas speaks nor the rights recognized in feudal society are "human rights." Such rights do not fit Alan Gewirth's description of human rights as "rights all persons equally have, simply because they are human."39 Second, in both cases, rights are paradigmatically presented as claims which guarantee some benefit for the claimant, rather than in terms of liberties possessed by persons. The remainder of this section will address these two issues.

(1) Justice Deals Unequally With Unequal Persons

The personal right claims Thomas recognizes are for him "natural" rights and thus "moral" rights in that they are grounded on the universally knowable and binding natural law as evident in the ordering of society. Contemporary discussions of rights language also use the terms " moral " and " natural" as well as a third, "human," to describe rights. Precise differentiation between the three terms is difficult, as many commentators tend to use all of them, or at least two of them, interchangeably.

Human rights," as Gewirth argues above, refers to legitimate claims persons have on account of some understanding of what it means to be human. For example, human rights are warranted on such grounds as human reason, human dignity and human agency. The concept "natural rights" originated in theorizing about the claims persons could make in the "state of nature" by "law of nature." John Locke, the paradigmatic voice of the liberal rights theories, understood rights to be " natural" in this sense.40 Ronald Dworkin, a contemporary liberal rights theorist, rejects the Lockean notion that "natural rights are supposed to be spectral attributes worn by primitive men like amulets." Dworkin's

39 Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: The University of Chicago Press, 1982), 1.

40 See John Locke, "The Second Treatise of Civil Government: An Essay Concerning the True Origin, Extent, and End of Civil Government," in Two Treatises of Government, introduction and notes by Peter Lasslet (New York: New American Library, 1965) . Locke's meaning of natural rights is illustrated by his other descriptions of rights. For example, he refers to : "native right," 442; "natural common right," 341; "original right," 397; and "natural right," 307.

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understanding of "natural" denotes that such rights "are not the product of any legislation, or convention, or hypothetical contract." 41 Modern Catholic social thought uses "human rights" and "natural rights" as synonyms in that the former are said to rest on something "natural" in the person. This distinction between natural rights and other rights can be used across the board to distinguish human rights, natural rights, and moral rights from positive or legal rights. As Joel Feinberg states,

A man has a legal right when the official recognition of his claim (as valid) is called for by the governing rules. This definition, of course, hardly applies to moral rights, but that is not because the genus of which moral rights are a species is something other than claims. A man has a moral right when he has a claim, the recognition of which is called for--not (necessarily) by legal rules--but by moral principles, or the principles of an enlightened conscience.42

Human rights and natural rights are, therefore, "moral" rights because the justification of such rights is grounded on a conception of the moral, that is, a moral principle or an objective morality. Moral rights are normative claims which are to order some areas of human relations. Positive rights, or rights granted by society, are to reflect and to guarantee moral rights. A final point can be made here. A "positivist" is one who, while recognizing the validity of rights granted by society, denies the existence of human, natural or moral rights. As Jeremy Bentham so descriptively claimed, positivists hold that such rights are nothing but " nonsense on stilts." 43

Thomas's personal rights are not moral in Gewirth's sense, nor are they natural in Locke's sense. Thomas does not begin with a Lockean conception of the "state of nature" nor does he have a theory of human rights as understood by moderns. The reason for this is Thomas's world view lacked a notion of universal

41 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 176.

42 Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1973), 67.

43 Quoted in Dworkin, Taking Rights Seriously, 184.

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egalitarianism. He thus could not agree with Gewirth's description of human rights as "rights all persons equally have, simply because they are human." Different people, defined especially in terms of their place/position/role in society, have different claims.

Thomas's discussion of justice illustrates this. Justice, writes Thomas, " is distinguished according to various offices, hence . . . we speak of ' military,' or ' magisterial,' or 'priestly' right . . . for the reason that something proper is due to each class of persons in respect of his particular office."44 Thus the land owner, parent, slave owner, spouse, judge, prince, priest, even the poor have a " place " in society and specific claims therein.45 Justice then deals " unequally with unequal " persons.46

(2) The Primacy of Duty

For Thomas, the objective right necessarily and substantially directs right claims in ways foreign to modern political thought. This is because for Thomas the imperatives entailed in "that which is right " are primarily described in terms of duties rather than rights. Thomas is more concerned with what persons ought to do than with what persons can claim. The moral life is then the life of obligation, to God, to others and to oneself.47

Thomas's use of rights language as referring to personal moral claims is secondary to his concern for describing conditions of moral obligation. His use of personal rights is then "passive in that the fulfillment of these claims is dependent on the actions of others. Passive rights, according to Richard Tuck, are rights "to be given or allowed something by someone else" rather than

44 Aquinas, Summa Theologica, 2a, 2ae, q. 57, art. 4.

45 It is noted that the Magna Carta, signed by King James of England in 1215, guaranteed the rights of English barons against the crown.

46 Gilby, The Political Thought of Thomas Aquinas, 222.

47 Thomas's discussion of law is focused on obligations. For example, he describes a law as being just in terms of its relation to the common good, not in terms of protecting individuals' rights. See Summa Theologica, 2a, 2ae, q. 90, art. 3, 4, and q. 96, art. 4. In his discussion of the Old Law, 2a, 2ae, q. 100, art. 5, Thomas states that we have obligations of "fidelity, reverence, and service ' to God, and we are obligated not to harm our neighbor in "thought, word, or deed."

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rights "to do something oneself." 48 They are rights to specific benefits rather than rights to act.49 The latter conception of rights, or " active rights," is not dependent for its fulfillment on the duty of others so much as it is on the agent's ability to act and to choose, that is, on the agent's liberty. Active rights attribute to persons " a kind of ' sovereignty ' over their moral world."50 The Thomistic primacy of duty, along with the lack of a principle of universal egalitarianism, categorically separates Thomas's understanding of rights from modern human rights theories.

These two characteristics are not unrelated. Rights based on social position are " rights in personam" in that they are related to the positive duties of specified persons. Such duties necessarily benefit the claimant. This conception of rights contrasts "rights in rem," that is, rights related to the general duties of all persons to refrain from harming others.51 Rights of liberty that so characterize modern rights theories are rights in rem.

In the contemporary use of the term, then, it is a misnomer to speak of a "rights theory" in Thomas Aquinas. For as Tuck suggests, if rights are understood in terms of the positive duties of others, "the language of rights is irrelevant, and to talk of 'human rights' is simply to raise the question of what kinds of duty we are under to other human beings, rather than to provide

48 Tuck, Natural Rights Theories, 6.

49 The possible benefits to be claimed by passive rights are many. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 204, for example writes, "there is the advantage of being the recipient of other persons' acts or service or forbearances; the advantage of being legally or morally free to act; the advantage of being able to change one's own or others' legal position, and of being immune from such change (when of a form characteristically disadvantageous to anyone subject to the change) at the hands of others; the advantage of being able to secure any or all of the foregoing advantages by action at law, or at least compensation for wrongful denial of any of them."

50 Tuck, Natural Rights Theories, 6.

51 See P. J. Fitzgerald, Salmond on Jurisprudence (London: Sweet and Waxwell, 1966), especially 217, and 234-235. See also Feinberg, Social Philosophy, 59-60.

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us with any independent moral insights." 52 To conclude, Thomas's use of personal rights can be described as characteristically passive and set within specific social arrangements.

With broad but distinct strokes, the next section will consider the use of rights language within the Catholic tradition from the medieval period after Thomas through the Renaissance. Though the figures of this period are never cited in contemporary Catholic discussions of rights (many of the narratives refer simply to a "Thomistic Legacy" preceding Rerum novarum), it will be shown that lively and significant debates touching on such critical issues as private property, personal liberty and "human" rights occurred within the Catholic tradition after Thomas and before the papacy of Leo XIII.

The Apostolic Poverty Controversy

It is Tuck's thesis that the beginnings of the first true natural rights theory, that is, a theory of active rights justified on claims an individual can make in the state of nature, can be found in the intense ecclesiastical debate concerning apostolic poverty.53 This intriguing debate,54 which began in the late thirteenth century and lasted into the middle of the fourteenth century, engaged three prominent groups (not to mention the Holy Roman Emperor and an anti-pope) who sought to define normatively how religious persons ought to live "apostolically" (that is, as the apostles of Jesus lived) in the world. The three groups were: 1) the Franciscans, under the leadership of Bonaventure, Duns Scotus, and William of Ockham; 2) the Dominicans, particularly Meister

52 Tuck, Natural Rights Theories, 1.

53 Brian Tierney, "Religion and Rights: A Medieval Perspective," Journal of Law and Religion 5 (1987) :166, challenges this position as he argues that the figures of this debate relied on "the matrix of the twelfth century juridicial humanism."

54 For a more thorough discussion see Gordon Leff, Heresy in the Later Middle Ages: The Relation of Heterodoxy to Dissent c. 1250-1450, 2 vols. (Manchester: Manchester University Press, 1967), 1: 51-255; and Frederick Copleston, A History of Philosophy, volume 3, Ockham to Suarez (Westminister, MD: The Newman Press, 1953), 111-116.

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Eckhart, who relied on the work of Thomas Aquinas; and, 3) the papacy, particularly Pope Nicholas III and Pope John XXII. Nicholas, a former protector of the Franciscan order, issued the bull Exiit in 1279 justifying the Franciscan ideal of apostolic poverty. The pope declared that consumption of a commodity, as distinct from trading or possessing a commodity, "did not count as the exercise of a property right."55 The Franciscans thus had an ecclesiastical warrant for their interpretation of what the apostolic life demanded. Though the order used and held temporal goods, it did so without "possessing" them. In 1329, Pope John XXII, the pope who canonized Thomas Aquinas, issued the bull Quia vit reprobus censuring the doctrine of apostolic poverty as heretical. Gorden Leff narrates:

John finally struck at the root of Franciscan poverty by refusing to separate use in fact from the right of use; consumption also meant dominion; the usufruct of anything consumed went with the right to consume it: ownership must be with him who exercised the right. What in effect John had done was to reject the non-legal, purely natural status of simple usus facti, and with it the distinction between use by necessity and use by right: use of anything, whatever the purpose, carried the right to exercise it.56

Tuck, quoting Silvertro Mazzolini da Prierio, a sixteenth century Dominican theologian, distills the controversy to a debate concerning the relation between the concepts "dominium," or property, and "ius," or right. In contemporary terminology, the debate centered on whether rights are best understood as paradigmatically active or passive. Passive rights, as illustrated above, recognize claims based on one's dominium, that is, on one's property. On the other hand, a theory of active rights not only justifies iura grounded on dominium but characteristically maintains that the very meaning of the term "right" implies dominium. As H. L. A. Hart states, "Rights are typically conceived of as possessed or owned by or belonging to individuals, and these expressions reflect the conception of moral rules . . . as forming

55 Tuck, Natural Right: Theories, 20-21.

56 Leff, Heresy in the Later Middle Ages, 165.

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a kind of moral property of individuals to which they are as individuals entitled."57 To have a right means that a person has dominium or sovereignty, in Tuck's words, "over one's relevant moral world." 58 Since passive rights " rely exclusively for their operation on their recognition by other people,"59 to have a right in the passive sense does not necessarily imply having dominium so much as it implies the existence of a network of moral obligations. Recall Thomas's discussion of property. Thomas grounds the right to own property on a moral vision of a rightly ordered society. The common good justifies and even limits the control persons have over temporal goods. This same moral vision demands that complementing the right to own property is the reciprocal duty of stewardship. The use, meaning and justification of passive rights are bound within a network of moral obligations. As Thomas's discussion of property illustrates, passive rights must be understood in relation to the duties of others as well as to the duties of the right-holder. Rights understood in a passive sense check the notion of individual sovereignty with a vision of a substantive moral order. In the apostolic poverty controversy, William of Ockham represents this latter position of passive rights and Jean Gerson represents the former position advocating rights in the active sense.

William of Ockham wrote Opus nonagino Dierum, described by Tuck as "virtually the last shot from the Franciscan side in the campaign,"60 to refute Pope John XXII's Quia vir reprobus. The fourteenth century Franciscan held that all persons have a natural, God-given right to private property anterior to human convention. This right, as Ockham describes it, is clearly connected to and indeed dependent on the duty of self-preservation. Persons have been given the right to own property so as to guarantee their survival. Moreover, persons cannot renounce the

57 H. L. A. Hart, "Are There Any Natural Rights?" in Rights, ed. David Lyons (Belmont, CA: Wadsworth Publishing Company, 1979), 19 (his emphasis) .

58 Tuck, Natural Rights Theories, 3.

59 Ibid., 5.

60 Ibid., 25.

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right, nor can it be taken away from them, in that such a renunciation or theft would be a serious threat to their well-being. It might be said that for Ockham the right to own property was in a sense "inalienable." However, says Ockham, the Franciscan vow of poverty was justified in that this specific renunciation of the right to own property, to have dominium over " possessions," did not conflict with the fundamental duty of self-preservation on the grounds that the well-being of the friars was not threatened.61 Though the exception to the inalienable-like principle certainly weakens his argument, it is noted that Ockham's justification for the right to own property is characteristically passive. Again, the right is not expressed as an independent moral claim but as an element of a network of moral claims. In this case, the right is based on the prior duty of self-preservation.

Tuck suggests that the first natural rights theory evolved from the anti-poverty position found in the writing of the early fifteenth century mystic Jean Gerson. Quoting Gerson:

There is a natural dominium as a gift from God, by which every creature has a ius directly from God to take inferior things into its own use for its own preservation. Each has this ius as a result of a fair and irrevocable justice, maintained in its original purity, or a natural integrity. In this way Adam had dominium over the fowls of the air and the fish in the sea . . . To this dominium the dominium of liberty can also be assimilated, which is an unrestrained facultas given by God.62

Note especially Gerson's linking of liberty and domrnium. Liberty is a ius, a facultas one has sovereignty over. This is a distinctive move. When liberty is classified as a right, a possession much like property, the focus of rights language shifts. An expansion of the very meaning of rights occurs. Liberty rights are active rights, that is, they are rights to do things. Gerson' s identification of liberty as a right pushes rights language one step

61 Ibid., 22-24. See also Philotheus Boehner, "Ockham's Political Ideas," in Collected Articles on Ockham, ed. Eligious M. Buytaert (St. Bonaventure, NY: Franciscan Institute Publications, 1958) .

62 Jean Gerson, De Vita Spirituali Animae, quoted in Tuck, Natural Rights Theories, 27.

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out of Thomas's natural law understanding of rights on a formal as well as a material level. Liberty rights move beyond the network of moral norms because rights to do things are not necessarily related to positive duties in others. Wesley Hohfeld describes the concept of a liberty right as a "privilege" denoting not only the absence of a positive duty on behalf of others, but also that others have "no-right" correlative to an agent's liberty right.63 A second and decisive step out of the natural law vision of rights language, which Gerson approaches, divorces rights language from a substantive moral vision. Again looking to Hohfeld, a liberty right denotes not only an absence of duties and rights of others but an absence of duty on behalf of the claimant as well. Liberty rights, active rights, are paradigmatically subjective in that the ground of such rights is the sovereignty of the individual rather than the moral law.

As a fundamental issue in the apostolic poverty controversy was theological, the understanding of God and God's relation to the world was critical. With the advent of the Renaissance and Reformation, these fundamental presuppositions of medieval theology were shaken. The significance of Gerson's development was lost in the sixteenth century and was not to be restated until into the seventeenth century. By the end of the fifteenth century, however, Gerson's followers

. . . had converted the claim-rights theory of the twelfth century completely into an active right theory, in which to have any kind of right was to be a dominus, to have sovereignty over that bit of one s world--such that even a child had sovereignty over its parents when it came to questions of its welfare.64

Just as it is difficult to wrestle with the varied meanings of the word " right" or the expression "to have a right," so it is with liberty. Nonetheless, the use, meaning, and justification of

63 See Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, CT: Yale University Press, 1964, reprinted Westport, CT: Greenwood Press, 1978), 35-50. This volume, first published in 1919, is a classic jurisprudential analysis of rights language.

64 Tuck, Natural Rights Theories, 28.

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liberty, as well as of property, have a significant place in the history of rights language. In pre-modern Catholic social thought, Gerson's correlation of liberty and dominium is perhaps more of an exception than the norm, but it does represent an attempt to resolve what has become a tension in the Catholic tradition, that is, reconciling individual liberty with the objective moral order.

Rights and the Origins of International Law

If the historical significance of Gerson and the use of rights language within the apostolic poverty controversy was in its originality, the significance of the use of rights language in the sixteenth century retrieval of Thomas Aquinas lies in its effect on the development of international law. This next section will consider rights language in the thought of Francisco de Vitoria, the Dominican known as "the founder of modem international law," 65 and Francisco Suarez, the renowned Jesuit philosopher of law.

The travels of Columbus, the discovery of the New World, and the Spanish conquest of "undiscovered" lands, created, in the words of A. T. Serra, "a true spatial revolution which rendered insufficient the medieval concept of Christendom." 66 The commonly held borders of morality were destroyed as the Con quistadores, defending their Christian faith and expanding the strength of their Spanish homeland, brutally attacked the Native American "barbarians." The violence associated with the Spanish conquest attracted the attention of many in Spain including Francisco de Vitoria. The prominent Dominican defended the Indians and their rights to property and self-governance on what might be called a "human rights" argument. All persons, argued Vitoria, whether barbarian, heretic or Christian, have a common rational

65 Felix Alluntis, "Francisco de Vitoria," in Encyclopedia of Philosophy (New York: Macmillan Publishing Company Inc. & The Free Press, 1967). See also James B. Scott, The Catholic Conception of International Law (Washington, DC: Georgetown University Press, 1934), vii.

66 Antonio Truyol Serra, The Principles of Political and International Law in the Work of Francisco De Vitoria (Madrid: Ediciones Cultura Hispanica, 1946), 17.

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faculty, a universal human characteristic, based on the "possession of the image of God." 67 This faculty enables humans to have dominium over their actions and thus dominium over temporal goods. Just as it is wrong for the Spanish to unjustly attack, steal from or enslave non-Catholic Europeans, so too, says Vitoria, it is wrong to bring such harm on the Indians. Quoting Vitoria:

Our proposition is also confirmed by the authority of St. Thomas Aquinas (Prima Secundae, qu. 1 art. 1 and 2, and Contra Gentiles, bk. 3, c. 110), to the effect that only rational creatures have dominion over their acts, the test of a man's being master of his acts being (as St. Thomas says, Prima Pars, qu. 82, art. 1, on obj. 3) that he has the power of choice.68

Since the Indians have use of reason, illustrated in their orderly social system--marriage, governing authorities, a system of exchange, "a kind of religion," 69 as well as by the fact that "they make no error in matters which are self--evident to others," 70 they have dominium over their actions and thus over temporal goods. Natural reason then dictates that the Indians are entitled to the same treatment as the Europeans.

The "spatial revolution" and its subsequent problems of international travel and conquest widened Vitoria's assumptions about the social order. Indeed his significant contribution to modern thought was his understanding of a global positive law that was to govern and order relations between states much as civil law governed persons within a state. He wrote:

And, indeed, there are many things in this connection which issue from the law of nations, which, because it has sufficient derivation from natural law, is clearly capable of conferring rights and creating obligations. And even if we grant that it is not always derived from natural law, yet there exists clearly enough a consensus of the greater part of the whole world, especially in behalf of the common good of all.71

67 Francisco de Vitoria, De Indis et lure Belli Reflectiones, ed. Ernest Nys, trans. John P. Bate, The Classics of International Law, ed. James Scott (Washington, DC: Carnegie Institution of Washington, 1917), 127.

68 Ibid., 126.

69 Ibid., 127.

70 Ibid.

71 Ibid., 153.

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The totus orbis, described by A. T. Serra as "the world as a whole, as a moral unity of peoples politically organized under natural law," 72 was Vitoria's vision. The ius gentium, the law of nations, was to reflect and embody this global common good.

Vitoria expanded the frame of reference in which right claims could be made, but he by no means removed such claims from the objective demands of justice and equality. Vitoria's use of rights, like Thomas's, never leaves the service of that which is right. Rights are warranted, according to Vitoria, by the human dominium or faculty to choose; yet this dominium is limited. It is to choose the means to attain the natural end of persons. The telos is given, and persons are to act appropriately. Thus rights are grounded on and limited by the objective moral order. If Vitoria's "human rights" argument recognizes rights as personal powers possessed, it does so to promote and to protect justice and equality beyond traditional national borders.

Gerson's use of active rights can be described as more an exception than the rule in Catholic social thought, while Vitoria's use of rights, at least on a formal level, might be described as characteristically Catholic. Two examples from Vitoria's discussion of the just war illustrate this point. At times, says Vitoria, "the justice of the war is doubtful, that is, when there are apparent and probable reasons on both sides."73 In a case such as this, both "princes are asserting a right." Though this latter statement suggests the princes are asserting powers they possess, it is more accurate to say the princes are asserting substantive claims of justice. The objective sense of right, here a normative justice claim, directs the understanding of rights. This relation between that which is right and rights guides Vitoria's work.

A second illustration of Vitoria's concern for the objective moral order is found in his discussion of what contemporary

72 Serra, The Principles of Political and International Law in the Work of Francisco de Vitoria, 18.

73 Vitoria, De Indis et lure Belli Reflectiones, 174.

74 Ibid., 175.

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persons would call the "right to conscientious objection." Vitoria states Christians are bound to evaluate the justice of particular wars. This means Christians must examine whether or not a just cause exists. If there is no just cause (" There is a single and only just cause for commencing a war, namely a wrong received." 75), the killing of the enemy is unjustified, that is, it is murder. Quoting Vitoria:

But in the case before us the enemy is innocent. Therefore they may not be killed. Again, a prince sins when he commences a war in such a case . . . Therefore soldiers are not excused when they fight in bad faith . . . Hence flows the corollary that subjects whose conscience is against the justice of a war may not engage in it whether they be right or wrong. This is clear, for 'whatever is not of faith is sin' (Romans, ch. 14) 76

The "right" (not Vitoria's word) to conscientiously object to participation in a war stems from the dominium that is characteristic of human nature. Persons must choose the relevant means to attain that which is right. The agent's decision not to participate in a war is a judgment warranted by the agent's primordial duty to do good and avoid evil. For Vitoria, and indeed for pre-modern Catholic thought in general, the individual power possessed stands in reference to that which is objectively right. Rights language here is paradigmatically passive. It would be incorrect to say that Vitoria advocated "liberty" of conscience. One has the duty to follow one's conscience.

Vitoria's use of rights contrasts with the Gersonian sense of ius. The active rights theory of Gerson identified rights with dominium over the self. A right from this perspective is understood to be one's property and thus could be traded or exchanged as any other property. According to Gerson, one could even exchange one's liberty to the point of selling oneself into slavery. For Vitoria, rights and liberty were under the dominium of the objective moral order. Thus he asserts, "liberty cannot rightfully

75 Ibid., 170.

76 Ibid., 173.

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be traded for all the gold in the world."77 Tuck accurately suggests that the contrast between Vitoria and Gerson on this point illustrates " perhaps the recurrent theme in the history of rights theories," that is, " a theory of rights [active rights] permitted practices which an anti-subjectivist theory [passive rights] prohibited."78 For Gerson, the right to sell oneself into slavery was the logical extension of equating liberty and dominium.

Vitoria expanded Thomas's understanding of ius in two ways. First he broadened the objective vision of "that which is right" beyond "the communal setting" to the totus orbis. In doing so he defended a set of in rem rights, that is general rights all persons have against others. This type of rights is distinct from Thomas's in personam rights which by definition correspond to specific duties of determinate persons. Second, his vision of the objective order allowed him to extend the justification of rights beyond those warranted in relation to specific social positions to a more universal concept of rights based on the fact that all persons were created in the image of God. Vitoria espoused a vision of "human rights." A generation after Vitoria's death, another Spanish Thomistic theologian, Francisco Suarez, combined elements of a Gersonian understanding of liberty with Thomistic social philosophy.

Suarez's concern, unlike that of his predecessor, was not focused on resolving concrete problems. Suarez was a philosopher of law who worked with the principles, justification, and categorization of law rather than with its practical application.79 It is thus fitting that Suarez's most remembered contribution to the rights discussion is his analysis of ius:

[J]ustice is said to be the virtue that renders to every man his own right (ius suum), that is to say, the virtue that renders to every man that which belongs to him. Accordingly, this right to claim (actio), or moral power, which every man possesses with respect to

77 Vitoria, quoted in Tuck, Natural Rights Theories, 49.

78 Tuck, Natural Rights Theories, 49 (his emphasis) .

79 For a discussion of the relation between Vitoria and Suarez, see Scott, The Catholic Conception of International Law, 127-131.

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his own property or with respect to a thing which in some way pertains to him, is called, ius, and appears to be the true object of justice.80

Though the statement "ius . . . appears to be the true object of justice " is a recital of a characteristically Thomistic theme,81 John Finnis describes Suarez's definition of ius as crossing a "watershed" in comparison to Thomas. Finnis says:

The meaning which for Aquinas was primary is rather vaguely mentioned by Suarez and then drops out of sight; conversely, the meaning which for Suarez is primary does not appear in Aquinas' discussion at all . . . [J]us [for Suarez] is essentially something someone has, and above all (or at least paradigmatically) a power or liberty. If you like, it is Aquinas' primary meaning of 'jus', but transformed by relating it exclusively to the beneficiary of the just relationship, above all to his doings and havings.82

Evidence of this crossing of a "watershed" can be found in Suarez's Gersonian-like understanding of liberty. As Suarez discusses the "natural law of dominion" 83 he quite easily moves, indicating no categorical difference, from the issue of private ownership of property to personal liberty. " Man," he says, "is lord of his own liberty, it is possible for him to sell or alienate the same." 84 Liberty is in fact " a lawful right . . . positively granted by nature" 85 which persons can voluntarily forfeit or which can be legitimately taken away by a higher authority "by way of punishment." 86 Voluntary slavery, even of whole peoples, is justified by nature according to Suarez.87

80 Francisco Suarez, De Legibus ac Deo Legislatore, in Selections From Three Works of Francisco Suarez, 2 vols., trans. Gwladys L. Williams, Ammi Brown and John Waidron with certain revisions by Henry Davis, The Classics of International Law, ed. James Brown Scott (Oxford: The Clarendon Press, 1944), 2:31.

81 See Aquinas, Summa Theologica, 2a, 2ae, q. 57, art. 1.

82 Finnis, Natural Law and Natural Rights, 207 (his emphasis) . Earlier in the text, 45, Finnis argues Suarez had other significant differences with Thomas.

83 Suarez, De Legibus ac Deo Legislatore, 278.

84 Ibid., 279.

85 Ibid., 280.

86 Ibid., 279.

87 Ibid., 381.

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Finnis describes Suarez as being on same side of the "watershed" as Thomas Hobbes in distinction to Thomas. This would mean Suarez's position could logically be pushed to Hobbes's position. Yet for Hobbes the subjective ius is independent of lex and is indeed independent of any objective context concerning "that which is right." In Leviathan, Hobbes states:

RIGHT, consisteth in liberty to do, or to forbeare; Whereas LAW, determineth, and bindeth to one of them: so that Law and Right, differ as much as Obligation, and Liberty; which in one and the same matter are inconsistent.

And because the condition of Man is a condition of Warre of every one against every one; in which case every one is governed by his own Reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemyes; It followeth, that in such a condition, every man has a Right to every thing, even to one anothers body.88

Hobbes states that the authority for law lies in the command of the sovereign. The reason, however, why persons obey the law is to insure they get what they want, dominion, and avoid what they do not want, death.89 Thus it is a law of nature, says Hobbes, that in order to protect ourselves, we are to " lay down this right to all things."90

Finnis, then, seems to overstate the distinction between Thomas and Suarez and the similarity between Suarez and Hobbes.91 Two points stand out in Finnis's discussion. First, as was stated above, Thomas's understanding of ius ought not to be described as exclusively objective. Thomas did recognize a personal meaning of ius, though such a use is not evident in his discussion "On Right "--Finnis's only reference to Thomas on ius. Second, Suarez's understanding of ius might not be easily pushed into the

88 Thomas Hobbes, Leviathan, ed. C. B. Macpherson (New York: Penguin Books, 1968), 189-190.

89 See Alasdair MacIntyre, A Short History of Ethics (New York: Macmillan Publishing Company, 1966), 134.

90 Hobbes, Leviathan, 190.

91 See Ernest Fortin, "The New Rights Theory and the Natural Law," The Review of Politics 44 (1982) :590-612.

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radical Hobbesian position which divorces jus from a substantive moral order. At least on a formal level, ius is the object of justice for Suarez as it is for Thomas. Suarez does use ius to protect "the beneficiary of the just relationship" (so too in a sense does Thomas); however, such use cannot necessarily be described as a liberty. For example when Suarez writes, "For it is thus that the owner of a thing is said to have a right (ius) in that thing, and the labourer is said to have that right to his wages by reason of which he declared worthy of hire," 92 he is defending "that which is right." The right of dominium, whether of property or liberty, must reflect the natural law. The distinction, says Suarez, between the natural law and law concerning dominium is,

. . . the former kind comprehends rules and principles for right conduct which involve necessary truth, and are therefore immutable, since they are based upon the intrinsic rectitude or perversity of their objects; whereas the law concerning dominion is merely the subject-matter of the other preceptive law, and consists (so to speak) of a certain fact, that is, a certain condition of habitual relation of things.93

The purpose of this essay is to trace the roots of the use of rights language in contemporary Catholic social thought. It has been shown that the pre-modern tradition uses rights as "personal" claims rather than as "human rights" claims. From Thomas Aquinas to Francisco Suarez, rights language in Catholic thought most often follows the paradigm: The object of justice is right, and rights specify certain conditions of justice based on one's " holdings." That is, with the exception of Gerson and his followers, rights language in this tradition is characteristically passive. The rights recognized as valid claims are warranted and at the same time limited by the moral order. This is not to suggest that a consistent material vision of the moral order existed from Thomas to Suarez. Note for example the varied justification for specific claims, one's temporal holdings, one's position in society, and, according to Vitoria, one's innate humanness. A

92 Suarez, De Legibus ac Deo Legislatore, 30.

93 Ibid., 279-280.

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consistent thread of the tradition is an understanding that that which is right and right claims are intimately related. Right claims rest on an objective authority. Rights are not independent moral claims simply to do things. The natural law for Thomas justifies specific subjective claims based on one's social position. One's "property," understood in terms of land holdings or office, determines one's rights. With the apostolic poverty controversy, the notion of "property" was expanded so Gerson could refer to one's right as property. Indeed, even liberty became dominium. Vitoria, recalling Thomas, expands the Thomistic vision of rights from the "communal setting" to the international arena. Suarez attempts to bridge a liberty right within Thomistic natural law.

It is suggested that Vitoria stands out as a paradigmatic figure for Catholic social thought.94 His unfolding of the use, meaning and justification of rights to international relations, along with his recognition that the Native American " barbarians" were indeed human beings created in the image of God, are two significant developments. Vitoria pioneered what has become an organizing theme in contemporary Catholic social thought, that is, he used rights language, specifically human rights, to defend the powerless in the face of injustice caused by the powerful. Moved by the realization that the conquest ideology of his Spanish homeland was not "right," that is, the natural duties of the Spanish as travelers and traders (not to mention Christians) were ignored, Vitoria proclaimed a fundamental human equality protecting the lives and livelihood of the powerless and exploited Native Americans.

94 For a contemporary critique of Vitoria's work from the perspective of a liberation theologian, see Gustavo Gutierrez, "The Violence of a System," in Christian Ethics and Economics: The North-South Conflict, eds. Dietmar Mieth and Jacques Pohier, Concilium, volume 140 (New York: Seabury Press, 1980).