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From Natural Law to Human Rights: Or, Why Rights Talk MattersAuthor(s): Jean PorterSource: Journal of Law and Religion, Vol. 14, No. 1 (1999 - 2000), pp. 77-96Published by: Journal of Law and Religion, Inc.Stable URL: http://www.jstor.org/stable/1051779 .

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FROM NATURALLAW TO HUMAN RIGHTS:OR,WHY RIGHTSTALKMATTERSJean Porter t

Near the beginning of The Idea of Human Rights, MichaelPerry states that "One of my principal goals ... is to clarify andaddress he unusuallymurkysubjectof 'moralrelativism'-and to doso from the perspective of what can properly be called 'naturallaw."'1 This he defines, following D.J. O'Connor, as a viewaccordingto which "basicprinciplesof morals and legislation are, insome sense or other, objective, accessible to reason and based onhuman nature."2Subsequently,he explainsthatthe relationbetweenbelief in naturallaw and in humanrights is one of presupposition;that is to say, a doctrine of naturalrights presupposes the moralrealismwhich in his view is the centralcore of natural aw theories.3As his discussion makes clear,Perry'sclaim that humanrightspresupposea natural aw should be understoodas a theoreticalclaim.At the sametime, it raises interestinghistorical ssues. Thatis, whenwe examineclassical accounts of the natural aw, are these explicitlylinked with doctrines of natural or human rights, or somethingrecognizably similar? (Throughoutthis paper, I treat the terms"human"and "natural" ights as synonyms.) And more generally,what can we learn from the ways in which our forbears drewconnections, or failed to do so, between a natural law and humanrights?

It is difficult to deny that the naturallaw tradition had someinfluence on the subsequent emergence of doctrines of natural oruniversalhumanrights,if only because the most important igures inthis development, including Hugo Grotius, Thomas Hobbes, andJohn Locke, frametheir arguments n termswhich are recognizablydrawnfrom medieval discussions of the natural aw. However, it ist TheUniversityof Notre Dame.1. Michael J. Perry, TheIdea of HumanRights. Four Inquiries6 (OxfordUPress, 1998).2. Id.3. Id at 57-86; the relation between theories of the natural law and humanrightsis describedas one of presuppositionat 68.

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JOURNALOFLAW& RELIGIONnot so clear that earlieraccountsof the naturallaw are also linkedwith doctrinesof naturalrights. In fact, the general question of therelation between earlier concepts of the natural law and modemdoctrinesof humanrightshas been debatedthroughout his century.Onthe one handwe find a numberof scholars,from Michel Villey toRichardTuck and AnnabelBrett, arguingthat the first accounts ofnaturalrights properlyso called did not appearuntil the fourteenthcenturyat the earliest. On the otherhand,several scholars,includingboth JacquesMaritainand John Finnis, claim to find a doctrineofnaturalrights(or at least, the inchoatebeginningsof such a doctrine)in Aquinas, and more recently the medievalist Brian Tiemey hasargued that we find a concept of natural rights in some earlythirteenth enturyscholastics.What is at stakein this debate for a contemporarydefender of adoctrine of humanrights? Obviously, for someone such as Maritainor Finnis, who claims that some strandof the medieval naturallawtradition s equivalent o a doctrineof naturalrights,a greatdeal is atstake. But Perrydoes not make such a strongclaim; he simply saysthat belief in human rights presupposes belief in a natural law,understood n very generalterms as a commitment o a minimalformof moral realism. And of course,there are a numberof philosophersandpolitical thinkerswho would defend a version of a humanrightstheorywithoutrelyingon appealsto a natural aw at all.Nonetheless, there is somethingat stake in this debateeven forthose defendersof rightstheories who do not rely on an account ofthe natural aw in developingtheir views. Consider his question:Dopre-modem natural law thinkers have a concept of human rights?This may seem like a simple question,but as we will see, it is not.And this question is importantfor just the same reason that it isdifficult to answer;thatis, what is at issue is not so much the recordof what earliermedieval authors hought,as the proper nterpretationof thatrecord.The issue at stake, in otherwords, is conceptual. How are weto interpretthe moral and political doctrines which comprise theearlier medieval concept of the natural law? More specifically,should we count the former as amountingto a doctrine of humanrights,which preservesthe same essential featuresas later versions?In order to answerthis, it will of course be necessary to determine

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FROMNATURALLAWTOHUMANRIGHTSwhat those essential features are. In this way, our assessment ofmedieval writings forces us to reassess our initial understandingofhumanrights, and to identify what we consider to be the essentialfeaturesor core insightsof that doctrine.In this paper, I will examine some of the more recentinterventions n the debateover the historicalorigins of the doctrineof human rights in order to see what they can offer for ourunderstandingof humanrights today. My aim in doing so is not tooffer a comprehensivesurvey of this debate,nor even to attempttoresolve it, althoughmy own views on the historical question willbecome apparent. Rather,I want to use this debate as a frameworkfor focusing and reflecting on our contemporaryunderstandingofhuman rights. More specifically, I think this historians' debate isimportant for philosophers, theologians and political theoristsbecause it helps to focus our thinking about what is at stake indecidingamongdifferent nterpretationsf humanrights.

FROMNATURALLAW TO HUMANRIGHTSThere seems to be little doubtthat we find a concept of human

rights, recognizablysimilarto modem accounts,by the latermiddleages. The questionis whether his conceptemergedbefore the end ofthe medieval period, and accordingto a number of scholars, it didnot. Michel Villey claims that this concept is first articulatedbyWilliam of Ockham,writing in the early decades of the fourteenthcentury.4 Similarly, Alasdair MacIntyre,who seems to have beeninfluencedby Villey on this point, admitsthatrights language beganto develop at the end of the medievalperiod.5 Althoughthey are notso prepared to see the doctrine of natural rights as a radicalinnovation,both RichardTuck and Annabel Brett likewise date theemergenceof naturalrightsdoctrinesfrom the fourteenthcentury.6

4. For my information on Michel Villey, and the earlier debate moregenerally,I am dependenton BrianTiemey, The Idea of NaturalRights:StudiesonNatural Rights,NaturalLaw and ChurchLaw 1150-1625 13-42 (Scholars Press,1997).5. ForMaclntyre'scommentson this issue, see AfterVirtue68-70 (U of NotreDame Press,2d ed, 1984).6. See RichardTuck,NaturalRightsTheories:TheirOriginand Development7-31 (CambridgeU Press, 1979); Annabel S. Brett, Liberty,Right and Nature.IndividualRightsin Later Scholastic Thought49-87 (CambridgeU Press, 1997).

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JOURNALOFLAW& RELIGIONFor those who would argue for a close connection between a

doctrineof naturalor humanrightsand the natural aw tradition, hisline of interpretationpresents a problem. Because of course thenatural aw traditiondates from a much earlierperiod, at least fromthe centurybeforethe commonera,if not even earlier.7It is true thatthe natural law does not appear to have become a focus forsystematicreflectionuntil the latterpartof the twelfth century,whenthe prominenceof natural aw languagein key legal texts led to thegrowthof firstjurisprudential, nd then theological reflection on thenatural aw. Even so, on the view sketchedabove, it takes at least150 years to move from systematicthoughton the natural aw, to anarticulationof a concept of naturalrights. This would suggest thatthere is a break, or at least significant discontinuity,between themedieval concept of the natural aw, and laterconcepts of naturalorhumanrights.In contrast, there have been a number of historians,philosophersandtheologianswho have argued hat we find a conceptof humanrights in some earliermedieval authors. We have alreadynoted that these would include JacquesMaritain,John Finnis, andmorerecentlythe medievalistBrianTiemey, even thoughas we willsee, Tiemey takes a different ine than do MaritainandFinnis.8Whatarewe to makeof this debate? It shouldbe noted, first ofall, that it cannotbe settled on purely linguistic grounds.Maclntyrehas famously assertedthat "there s no expression in any ancient ormedieval language correctly translatedby our expression 'a right'until near the close of the middle ages,"which he goes on to date atabout 1400.9 However, as Tiemey points out, this claim is

7. I ampersuadedby RichardHorsley's argument hatthe traditionof naturallaw thought takes shape sometime in the century before the beginning of theCommonEra,and draws on both Stoic andneo-Platonicelements;see RichardA.Horsley,TheLawof Nature in Philo and Cicero,71 Harv Theo Rev 35-59 (1978).8. For JacquesMaritain'sposition, see, for example, Man and the State 76-107 (U of ChiPress, 1951);JohnFinnis' basic theoryof naturalrightsis set forthinNatural Law and NaturalRights209 (ClarendonPress, 1980). Both MaritainandFinnisare more interested n developingan accountof naturalrights,thana readingof Aquinas,but both take theirtheoryto be a developmentof his views; see Manand the State at 84-85, and NaturalLaw and NaturalRights at 42-48. Tiemey'sargumentswill be discussedin moredetail below.9. Maclntyre,AfterVirtueat 69 (citedin note 5).

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FROMNATURALLAWTOHUMANRIGHTSincorrect.10?Medieval society in the twelfth and thirteenthcenturieswas preoccupiedwith establishingthe rights of various groups andindividualsover againstone another,and the men and women of thissociety had a perfectlyadequate anguagein which to do so. Centralto this rights discourse was the expressionjus and its declensions,which should sometimes clearlybe translatedas "law,"but which inother contexts shouldjust as clearly be translatedas "right," n thesense of an individual or group right. As an example of the latterusage, Tiemey offers Gratian'sassertion of a papal claim to "therights of heavenly and earthly empire" (terreni simul et celestisimperii iura, Decretum D. 22 C.1; Tiemey's translation)."1In thiscontext and in most other examples of a similar usage, the rightsassertedare not naturalrights, as Tierney recognizes, since they areunderstood to presuppose specific social arrangementsand shouldtherefore be considered to be conventional or legal rights.Nonetheless, the fact remainsthatthe scholasticsin the periodwe areconsidering did have the linguistic and conceptual resources todevelop a doctrineof natural ights.Morepositively, if we examine the moral andpolitical writingsof thejuristsandtheologiansof the twelfthand thirteenth enturies, tis clear that at the very least, they have much in common with mostmodem and contemporarydefenders of theories of naturalrights.Most fundamentally,they believe that there is an objective moralorder which places normative constraintson social practices. Inaddition, they share many substantive views with later rightstheorists,includinga commitment o non-maleficenceas the basis formorality, and a conviction that rational self-direction is central tomoralagency.Are these points of agreementsufficient to establish that thehigh medievalconceptof the natural aw implies a doctrineof naturalrights? Both Maritain and Finnis would agree that they are.12 So

10. Tierney, The Idea of Natural Rights at 44 (cited in note 4); for hissubsequentdiscussion of the uses of the term us, see 54-69. This discussion, inturn,occursin the contextof a more far-reachingnvestigationof the linguisticandconceptualoriginsof the idea of natural ightsfrom 1150 to 1250;see id at 43-77.11. Tierney,TheIdea of NaturalRightsat 54 (cited in note 4).12. Maritiandoes not say explicitly thatrightsclaims can be translatedwithoutremainder nto claims about mutualobligations,but his discussion seems to imply

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JOURNALOFLAW& RELIGIONwould Perryhimself: "Indeed,properlyunderstood,rights talk is aderivative and even dispensable feature of modem moraldiscourse.... What really matters-what we should takeseriously-is not humanrightstalk but the claims such talk is meantto express: the claims aboutwhat ought not to be done to or aboutwhat ought to be done for human beings. We can take rightsseriously(so to speak)withouttaking rightstalk too seriously."'13For all these authors, natural rights should be seen asexpressionsof the claims and dutieswhich personshave over againstone anotherby virtue of their mutual participation n an objectivemoral order. Because this order is seen as both supremelyauthoritative nd universal n scope, it gives rise to claims anddutieswhich are not dependenton any particularsocial arrangement,andwhich all communities are bound to respect. Furthermore,on thisview the rightsof one individualare generallycorrelatedwith dutieswhich are incumbenton someoneelse. Indeed,someone may be saidto have a rightbecause anotherpersonhas a dutywhich affects him(although it may not be a duty towards him specifically); forexample,my rightto life is grounded n the dutywhich everyone elsehas not to kill people, includingme. Onthis view, rightstalkoffers aparticularly mphaticand concise way of expressingoursense of ourobligations to others, but it does not add anything in the way ofjustifyingthose obligationsormodifyingtheir content.This last point raises a furtherdifficulty, however, because asTuck points out, it seems to imply that the language of rights isnugatory:If any rightcan be completelyexpressedas a moreor lesscomplete et of dutiesonotherpeople owardshepossessoroftheright,and thosedutiescan in turnbe explainedn termsofsomehigher-order oralprinciple,henthepointof a separatelanguageof rightsseems to have been lost, and with it theexplanatory r justificatoryorcepossessedby references o

this;see in particularMan andthe State at 97-107 (cited in note 8). Finnisdoes saythis explicitly in NaturalLaw andNaturalRightsat 209-10 (cited in note 8); I firstnoticed this referencethrough ts citationby Perryin TheIdea of HumanRightsat56 (cited in note 1).13. Id. For Finnis' expressionof the same view, see NaturalLaw and NaturalRightsat 209-10 (cited in note 8).

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FROMNATURALLAWTOHUMANRIGHTSrights. This result has been acceptable o many politicalphilosophers,but others have been worried by it, feeling ...that the pointof attributingightsto peopleis to attribute othem some kind of "sovereignty" ver the moral world.According o this view, to have a rightto somethings morethan to be in a positionwhere one's expressedor understoodwant s the occasion or theoperation f a duty mposeduponsomeoneelse; it is actually n someway to imposethatdutyupon hem,andto determine owtheyought o act towards hepossessor f theright.14I believe Tuck's objectionto this view is well taken. He is notaiming to legislate usage; if Perry and others wish to describe theclaims arisingout of a sharedmoralityas rights, there is no logicalreason why they should not do so. However, this way of speakingtrivializesthe historicalquestionbefore us, andby the same token itobscures an important theoretical issue. For if a rights theoryamounts to nothing more nor less than the view that there is anobjectivemorality,then of course medievalnatural aw authorshad atheory of rights-and so did any number of other modem andcontemporaryauthors, including Jeremy Bentham, who famouslydescribed the doctrine of "naturaland imprescriptible rights" as"nonsenseon stilts."15However, when modem theorists refer to naturalrights, theyfrequentlymean something more than the claims arising within amoral order.16 On such a view, a naturalright properly so calledattaches to a person as, so to speak, one of the individual's moralproperties. In the terms of contemporarypolitical theory, it is asubjective,rather han an objective right. Furthermore,econdly, thedutiescorrelative o such a rightarise in virtue of the right. Thatis tosay, the right is itself the groundof the duty. Finally, on this view

14. Tuck,NaturalRightsTheoriesat 6 (cited in note 6).15. Thephraseoccurs in his essay on the FrenchDeclarationof Rightsof 1791,AnarchicalFallacies, reprintedn abridged orm in A.I. Melden, ed, HumanRights28-60, 30 (WadsworthPub, 1970). In fact, Benthamoffers a model for reducingrights claims to a more general account of entitlements and obligations; see AnIntroduction o the Principles of Morals and Legislation224-25 (firstpublishedin1789;Hafner, 1948, reprintof final 1823 ed).16. I am dependenton Tuck's account of modem naturalrights theories here,althoughthe summary s my own;see generallyNaturalRightsTheories.

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JOURNALOFLAW& RELIGIONnatural rights exist prior to particularsocial arrangements,eventhoughtheir effective exercise may requirethe existence of specificinstitutions,such as law courts.Does the earliermedievalconcept of the natural aw containorimply a doctrineof naturalrightsin this strongersense? At the veryleast, we cannot say that there is any necessary connectionbetweenthis concept of the natural law, and a doctrine of natural rights.Certainly, twelfth and thirteenth century jurists and theologiansbelieve that men and women have claims over against one anotherfor certain kinds of aid and forbearance. However, they do notgenerally groundthese in subjective individualrights; rather,theseclaims follow from fundamental obligations of non-maleficencewhich arethoughtto be apparento all. And as Tiemey observes, "tobe the beneficiary of a duty is not necessarily the same thing ashaving a right. Medieval canonists understoodthis point too. Abishop mighthave a dutyto granta dispensationwhen circumstanceswarrantedt, they pointedout, but the petitionerdid not have a rightto insist on the grant."'7The moral/political theoryof ThomasAquinasis often cited asan example of a medieval doctrine of naturalrights.18But as othershave pointedout, this is so only if we assume that naturalrights areequivalentto naturalduties;this is one point at which Tierneyagreeswith both Brett and Tuck.'9 Aquinas has a concept of the naturalright,orjus, as an objectiveorderof equityestablishedby nature,buthe does not speak in terms of rights inheringin individuals,whichgive rise to duties in others(Summa heologiae II-II 57.1, 2). In hisremarkson property,he seems at first glance to assert the existenceof a naturalrightto ownership:

... exteriorhingscan be consideredn twoways. In oneway,with respectto theirnature,which is not subjectto human

17. Tiemey,The deaofNaturalRights t 70-71(cited n note4).18. As do bothMaritainndFinnis; eenote8.19. Brett offers a generally nsightfuldiscussionof Aquinas'conceptofobjectiveright,and I agreewith her conclusion hatAquinashas a notion ofobjective, utnot of subjectiveight; eeBrett,Liberty,RightandNatureat88-97(cited n note6). This s likewise he view of bothTuckandTierney;ee NaturalRightsTheories t 19-20(citedin note6), andTheIdeaof NaturalRightsat 45(cited nnote4), respectively.

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FROMNATURALLAWTOHUMANRIGHTSpower,but only to the divinepower,which all things obeystraightaway. n anotherway, withrespect o the use of thethingitself. And so the humanpersonhasnatural wnership(dominium)f exteriorhings,because hrough is reasonandwill he is ableto make use of them forhis benefit,as if theyweremadeforhim,formore mperfecthingsalwaysexist forthe sake of more perfectthings . . .. And by this argument, hePhilosopher rovesin the firstbook of the Politics that thepossession possessio) f exteriorhings s naturalo the humanperson. Furthermore,his natural wnership dominium)verothercreatures,which is appropriateo the humanpersononaccount of reason,in which consists the image of God, ismanifestedn theverycreation f thehumanperson,where t issaid,"Letus make hehuman erson oour mageand ikeness,and ethimhaveauthorityverthefishes of thesea,"etc. [Gen1.26](Summaheologiae I-II66.1;all subsequenteferences oAquinas are taken from the Summatheologiae, and alltranslationsromAquinas remyown.)Yet Aquinasconsidersthe naturaldominiumover createdthingsto be properto the human person as a species; furtheron in thisquestion, he explicitly says that privateownership by individualsisintroducedby human ngenuityin view of the needs of life (II-II66.2ad 2). Elsewhere, he explicitly endorses Gratian's claim thatcommunityof possessions anduniversallibertypertainto the naturallaw, whereaspropertyandservitudeare introducedby humanreasonon the groundsof expediency(Summa heologiae I-II 94.5 ad 3). As

Tucknotes, this alignshim with themoregeneralscholasticview thatpersonscan only lay claim to privateownershipor to the services ofothers on the basis of specific social arrangements,which give rise toobligationsandclaims not specifically grounded n the natural aw.20In otherwords,Aquinashas a conceptof the right,and he apparentlyalso has a conceptof claims emergingout of a particular et of socialarrangements,more or less equivalentto our concept of civic rights,but he does not appearto have a concept of naturalrights in thestrongsense.Yet at some points, Aquinas does come close to articulatingadoctrineof subjectivenaturalrights,even thoughhe does not quitedoso. The most strikingsuch example occurs in his discussion of the

20. Tuck,NaturalRightsTheories t19-20 cited nnote6).

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JOURNALOFLAW& RELIGIONobligations of obedience, which for him include the obligations ofservantsto mastersas well as the obligationsof those underreligiousvows to their superiors,and in general, every sort of obligationof asubordinateo a superior II-II104.5).As we would expect, Aquinas is quite preparedto defend thegeneralinstitutionsof subordination ndsuperiority hat structurehissociety. Whatmay be surprising s thathe places strictlimits on theextent of this obedience. For him, there is no such thing as anobligation of unlimited obedience between one person and another.The requirementsof obedience are limited by the point of therelationship, or one thing(II-II104.5 ad 2). More importantly, hereare limits on the sorts of obedience that can be exacted of anybody,under any circumstances. These limits are set by the fundamentalinclinationsof humanlife, which all persons share,and with respectto which all areequal:"However,one personis held to obey anotherwith respectto those thingswhich are to be done externallythroughthe body. Nevertheless, in things which pertainto the natureof thebody, one personis not held to obey another,but only God, since allpersons are equal in nature" II-II 104.5; compareI 96.4). Thus, hegoes on to explain, no one can commandanothereitherto marryornot to marry,for example,becausemarriagestems from an aspect ofhumanexistencewhich is common to all persons.In this passage,Aquinasdoes not explicitly say thatindividualshave a right to freedom,which can be assertedover against othersand defended as such in a court of law. However, he offers whatmany would consider to be the next best thing; that is, he defendshuman freedom in terms of an immunity from the interferenceofotherswith respectto the pursuitof certainbasic humangoals. If weagree with Tuck that for a defender of a strong subjective rightstheory, "to attributerights to someone is to attributesome kind oflibertyto them,"thenit would appear hatAquinascomes very closeto assertinga limited but definiterightto freedomhere.21Similarly,in his discussion of the obligationof the richto sharetheirsurpluswealth with the poor, Aquinasdoes not say that a poorindividual has a rightto the goods of a rich person (II-II66.7). But

21. Id at 7 (emphasisin the original);note, however, that Tuck here speaksofactiverights,rather hansubjectiverights.

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FROMNATURALLAWTOHUMANRIGHTShe does say that a poor person who takes from another what isnecessary to sustain life is not guilty of robberyor theft. This, inturn, implies that someone is free to take from another in suchcircumstances, in the sense of enjoying immunity from guilt orpunishment. This is not equivalent o sayingthatthe poor personhasa rightwhich could be claimed againstthe rich person and defendedat law, but it does imply that the rich individualcannotlodge a claimagainstthe poor individual for the returnof what the latterhas taken.In otherwords, the poor individualcannotdefenda claim againsttherich, but neither can the rich individual defend an accusation ofrobberyor theft against the poor person in such a case. This is atleast a subjective immunity, f not a full-fledgedsubjectiveright.My point here is not that Aquinashas a concept of subjectivehumanrights;I agreewith Tuck,Brett,andTiemey that he does not.Nonetheless, it is significantthat even thoughhe does not articulateastrong concept of subjectivenaturalrights, he comes very close tosuch a conceptat some points. This fact suggests that there is at leastsome affinity between naturalrights theorists and medieval naturallaw thinkers, even though the latter may not explicitly assert theexistence of subjectiverights.In his recentstudyof the emergenceof a doctrine of subjectiverights, Tiemey argues that at least some thirteenthcentury authorswent still further n the direction of developing a theory of humanrights.22 As is well known, the scholastics in the twelfth andthirteenth enturiesdefended the view that the rich have an obligationto share their goods with the poor in time of need. We have justnoted thatAquinas interprets his to mean that a poor individualwhotakes from anotherwhat is necessaryto sustain life does not sin, buthe does not actually say that the poor individual has a right to thesuperfluousgoods of the wealthy. However, otherthirteenthcenturyscholastics do say this explicitly. For example, the canonistLaurentius,who says that when the poor person takes from anotherunderpressof necessity, it is "as if he used his own rightand his ownthing."23 Moreover, as Tierney goes on to show, this came to berecognizedas a rightwhich couldbe adjudicated t law:

22. Tiemey, TheIdea of NaturalRightsat 69-76 (cited in note 4).23. Id at 73; I am quoting from Tiemey and the translation s his. He offershere several otherexamplesof similarexpressionsfrom the sameperiod.

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JOURNALOFLAW& RELIGIONAlongside the formal udicial procedures nherited rom Romanlaw the canonists had developed an alternative,more simple,equitable process known as "evangelical denunciation." Byvirtue of the authority nheringin his office as judge, a bishopcould hear any complaint involving an alleged sin and couldprovidea remedywithout the plaintiffbringinga formalaction.From about 1200 onward several canonists argued that thisprocedurewas availableto thepoor personin extremeneed. Hecould assert a rightfulclaim by an "appealto the office of thejudge."Thebishopcould hencompelanintransigentichmanto give alms from his superfluities, y excommunicationfnecessary.Theargument ainedgeneral urrencywhen it wasassimilatednto heOrdinaryGloss o theDecretum.24Those scholastics who speakof a righton the partof the poor tothe superfluitiesof the rich do so on the basis of more generalnaturallaw considerations, and they do not go on to develop acomprehensivetheory of naturalsubjective rights. Nonetheless, itwould be captious to deny that the authors,whom Tiemey cites doassert the existence of a subjective right, explicitly referredto as ajus, which is grounded n the natural aw rather han in specific socialconventions. It is not clear that the obligationof the rich person insuch a case would be seen as arisingfromtherightof the poor person(as opposed to the more general obligationof the rich to share withthose in need), but at the very least, generalobligations are seen asgiving rise to claims which function as subjective rights. Mostimportantly, hese rightsare seen as havingjuridicaleffect, that is tosay, they give rise to claimswhich can be vindicatedthrougha publicprocess of adjudication. Of course, this does not mean that these

rights could be successfully vindicated apart from some actual legalstructure,but that does not mean that they presupposethe existenceof such a structure;rather,it is one of the benchmarks of a justsociety that it provide some forum in which such rights can beclaimed and enforced. That is why the scholastics attemptedtodevise mechanismsthroughwhich the rightto surpluswealth couldbe publicly defended and enforced.Hence, even thoughthe earliermedieval concept of the naturallaw does not necessarilyimply a doctrineof subjectivenaturalrights,

24. Idat74.

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FROMNATURALLAWTOHUMANRIGHTSsome scholastics in the latterpartof this perioddo speak in terms ofindividual rights grounded in the natural law. Given this, laternaturalrightstheoriesappearas a natural(so to speak) developmentof the earliermedieval concept of the natural aw, even though theydo not represent he only possible way in which thatconceptcould bedeveloped.This conclusionwould be importantn itself, because it impliesthat there is no sharpbreak between the high middle ages and earlymodernityon this issue. If Tierneyis correct(as I believe him to be),not only do later doctrines of natural or human rights draw onlinguistic and conceptual resources developed in the thirteenthcentury, the age of high scholasticism,but an incipient doctrine ofnaturalsubjective rightscan alreadybe found in this period. At thevery least, this conclusion suggests that we need to rethink ourhistoriography.

WHYRIGHTS ALKMATTERSEven more importantly, t indicates what is at stake affirmingadoctrineof subjectivehumanrightswhich goes beyond an assertionof mutualduties. Let me expandon this point.Seen in the context of their pre-historyin the early medievalperiod, latermedieval andmodem rightstheoriesrepresenta furtherdevelopment of central concerns of the earlier medieval period, adevelopmentwhich places particular mphasison the authorityof theindividual as a participantn the divine attributesof reasonor will.25

All the canonists and theologians of the earlier medieval periodwould have agreedthat the natural aw gives rise to claims anddutiesstemming from the dignity of the human person, considered as abearerof the divine image and a potential participant n salvation.Furthermore, hey would have agreed that these claims and dutieshave social implications,at least insofar as any truly just society isbound to respectthem. The incipientaccountof subjectiverightswehave just considered goes beyond this consensus, to assert theexistence of individual claims which have juridical effect, and toassertfurther hatajust society will necessarilygive legal expressionto these claims.

25. As Tierey shows in some detail;see id at43-69.

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JOURNALOF LAW& RELIGIONAs such, this account places great emphasis on the value of

individualliberty,which is seen as not only an ideal to be respected,but a source for individual claims which have juridical force withinthe community. While the value of libertyis sharedby all the earliermedieval natural aw thinkers, he conceptof subjectiverightsplacesdistinctive emphasis on this value by pointing to a specific way inwhich it mightbe given social effect. At the same time, this accountplaces at least some of the responsibility or enforcingclaims of non-maleficenceon (potentialor actual)victims themselves.Are these happydevelopments,or not? Certainly,they arenotfree of all ambiguity. The emphasis on freedomwhich we find inaccounts of subjectivehumanrightshas not always been connectedwith political liberalism;on the contrary,as Tuck observes, "moststrong rightstheories have in fact been explicitly authoritarian atherthan liberal."26If my claims to freedom and right are groundedinsubjectiverights,which I can cede, then it is at least arguable hatmysubjection to an authoritarian egime or my status as a slave is

justified because at some time in the past, I or my ancestors cededtheserights. This at leastwas a commonargumentn defense of bothauthoritarian overnmentsand slavery, as Tuck goes on to show insome detail.27Yet a theoryof subjectivenaturalor humanrightsneed not bedeveloped in such a way as to incur these implications. The theorieswhich Tuckdiscusses were distinctive n theirrelianceon the conceptof subjectivenaturalrightsas the primaryor sole basis for moralandpolitical claims. That is why they opened up the possibility that anindividualmight cede immunities from even the most fundamentalformsof coercion andharm. If my immunity against being enslavedis groundedsolely or primarily n my subjectiverightto liberty,thenit is at least thinkable that I might cede my liberty to you bybecomingyour slave. But if thatthose immunitiesarebased in moreoverarchingmoralconsiderations, hen I cannot cede them, and youcannotenslaveme even withmy permission.

26. Tuck,NaturalRightsTheoriesat 3 (cited in note 6).27. Id at 50-57, 119-42.

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FROMNATURALLAWTOHUMANRIGHTSHowever, it is possible to develop a conceptof subjectiverights

in anotherway, which places themin awider natural aw context. AsTiemey observes,by around 200manycanonistswerecoming o realize hat heold languageof jus naturalecouldbe used to definebothafacultyor force of the humanpersonand a "neutralphereofpersonal hoice,""azone of humanautonomy."But theydidnot, like some modem critics of rightstheories,expect suchlanguage o justifya moraluniverse n which eachindividualwouldruthlesslypursuehis own advantage.Likemost of theclassical rights theorists down to Locke and Wolff theyenvisaged sphereof naturalightsbounded y a naturalmorallaw. The first natural ights theorieswere not based on anapotheosis f simplegreedorself-serving gotism; ather,heyderived from a view of individualhumanpersonsas free,endowedwithreason, apable f moraldiscernment,nd romaconsideration f the ties of justice and charitythat boundindividualso oneanother.28On this view, naturalrightswould not standas the sole sourcefor moral obligations, since they would derive their force from awider moral framework, which would at the same time setparameterson their exercise. In this sense, an account of naturalrights which takes the high scholastic account as its starting pointwould differ from those modem accounts which take rights to befoundationalfor obligations of non-maleficence. Yet on this view,claims of naturalor humanrightswould not simply be equivalentto

obligations of non-maleficence, because they would add thepossibility of the individuallodging a claim, havingjuridical force,forrespectforthese obligations.Interpretedn this way, a doctrineof subjective naturalrightswould not be so liable to the ambiguitieswhich Tuck describes. Atthe same time, it would add an importantdimension to Perry'saccountof rights as grounded n the sacrednessof humanlife. Thelatterconcept has its own problematicimplications, and a strongerdoctrineof subjectiverightswould serveto correctthese.Let me illustratewhat I mean. In the last chapterof TheIdea ofHuman Rights, Perry raises the question whether human rights are

28. Tierey, TheIdea of NaturalRightsat 77 (cited in note 4).

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JOURNALOF LAW& RELIGIONabsolute. In the course of this chapter,he raises the example of acase recently consideredby the SupremeCourtof Israel, "involvingthe use of physical force in the interrogation f a Palestiniandetaineebelieved to have 'extremely vital information whose immediateextractionwould help save lives andpreventsevere terrorattacksinIsrael."'29He goes on to quotethe attorney or the government o theeffect that "No enlightened nation would agree that hundreds ofpeople should lose their lives because of a rule saying torture isforbiddenunderall circumstances."30

So far as I can tell, Perrynever does state his own view on thisissue. He does describethe claim that torture s absolutelyforbiddenas "counterintuitive,"ut he acknowledgesthat it might nonethelessbe true.31 However, he turns immediately from a considerationoftorture o the rightto life, on the groundthat"manybelieve [the rightto life] to be the most fundamentalof all humanrights-or certainlyone of them."32 After an extended consideration of John Finnis'defense of an absoluterightto life, he concludesthatthe rightto lifeis not absolute. This at least suggests that he would not considertheright not to be torturedas an absolute. At the same time, heapparentlywould consider it to be nonderogable; hat is to say, itsviolation can never be juridicallysanctioned,even though it may bejustified in certainextreme andexceptionalcases.33I found Perry's discussion of this case to be troubling. Myreaction did not stem from a disagreementwith his conclusion. I amvery reluctant o say that torturecould ever be justified, andyet onecan imagine situations in which an absolute prohibitionwould bedifficult indeedto sustain,situationsof genuine emergencyin whichthe consequencesof such a prohibitionwould be not only tragic,butcatastrophicsay, triggeringa nuclearwar).What disturbsme aboutPerry's treatmentof the specific casehe cites is that he moves so quicklyfrom this case to a considerationof extremeand hypotheticalcases. In doing so, he glosses over the

29. Idat 94.30. Id.31. Idat95.32. Id.33. Id at 95-106; unless I have overlooked it, Perrynever does return to thespecific issue of torture.

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FROMNATURALLAW TOHUMANRIGHTSmoral issues involved in this non-exceptionaland all too real case.For what we have in this instance is not a situation in whichdesperate men and women resort to torture in order to meet anextraordinarymergency;rather, his is a situation n which torture semployed in order to preventa loss of life which is certainly tragic,but which cannotbe described as catastrophic. Moreover,given thesanction of the Israeli supremecourt,this case opens up the prospectof the use of torture in similar situations, as a sanctionedgovernmentalpolicy.

This latterpoint, it seems to me, is critical. After all, why dowe find tortureso profoundly objectionable? Not only, I wouldsuggest, because it involves the deliberate infliction of pain onanother humanbeing-although that is bad enough-but also, andmore fundamentally,because it consists in an attempt to coerceanother through direct assault on his physical (or perhapspsychological) integrity. As such, it representsa fundamentalattackon thejuridical personalityof the individual,his claim to recognitionas a free subject who can choose either to speak on matters ofconcern to him, or to remain silent. When such an attack isundertakenby the agentsof the state,which exists (in part)to protectthejuridicalclaims of those who are subjectto it, it is a particularlyegregious offense. When such attacks become part of sanctionedstate policy, they are intolerable. It is precisely the mark of acivilized nation to refuse to adoptsuch a policy, even at the risk of"hundreds f lives."

This exampleis instructive,because it reveals the limitations ofthe ideal of the sacrednessof human ife, takenby itself. This ideal isattractive,because it seems give powerful expression to our sensethat there are fundamental constraints on our treatment of oneanother. Up to a point, it does so, but as Perry's discussion inChapterFour indicates, even this ideal allows for the possibility ofharming individuals under certain conditions. That concession, initself is not problematic; it is difficult to imagine any credibleaccountof moralitywhich would not makesuch a concession.Rather,the difficulty with the ideal of sacredness is that takenby itself, it offers us little guidance for determiningwhat kinds ofharmsarepermissible,towardswhom and underwhat circumstances.If every life is sacred, then this seems to imply that no life may be

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JOURNALOFLAW& RELIGIONtakenunderany circumstances. But as Perryshows, this conclusionis untenable. It is not a denial of the sacrednessof the individualtokill him, assuming that the killing is justified. This seems fairenough,but it offers us little guidancein determiningwhich killingsare justified, and which are not. Moreover, it offers even lessguidance for determiningwhether the infliction of harm other thankilling would be justified. That, I believe, is why the logic of theideal directs Perry's argument away from the specific case ofjudicially sanctionedtorture, n the process obscuringthe distinctiveissues which thatcase raises.Moreover,the idealof the sacrednessof life, takenby itself, canactuallyprovide a sanction for violence againstotherswho are seenas threatening hat ideal. We see this very clearly in this country,where harassmentand even murder are justified in the name ofprotecting the sacred lives of the unborn. Of course I am notsuggesting that Perryintends or would in any way supportsuch aninterpretationof the sacredness of human life. Yet we canunderstand how this ideal, translatedinto a social program andappliedwithoutany countervailingprinciples,mightbe developed inthe directionthat the most violent anti-abortion rotestorshave takenit. If human life is taken to be sacred, and if other moralcommitments are considered to be secondary at best, then theprotectionof life readilybecomes an overridingvalue. This mightimply that no one at all should be subject to violent attack,and ofcoursemanydo draw ust this conclusion. But it can also be taken toimply that those who appear to be attacking human life are soprofoundly depraved that they have forfeited any claims toconsideration. Seen from this perspective,the humanityof abortionproviders recedes from view, while the loss of life intrinsic toabortion akes on overwhelmingmoralsignificance. Is it anywonderthatfrom this perspective,the killing of abortionprovidersappears osome to be ajustifiedevil, or even a commendableact?

I do not know whetherthe Israeli court that sanctioned torturemade an appealto the sacredness of human life in its deliberations.Yet it is easy to see how this ideal might be interpretedin ananalogousway to supportsuch a policy. If we focus our attentiononthe sacrednessof the lives of the victims of Palestinian errorists, hen

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FROMNATURALLAWTOHUMANRIGHTSit is easy to lose sight of the humanityof the terrorists-and fromthere it is a small step to focusing on the sacredness of potentialvictims, to the detrimentof possible terrorists. In such a frame ofmind, what is the value of this Palestinian, who may well be amurderous terrorist (although we cannot be sure of that!), overagainst the blameless, sacred individuals who may (or may not)become the victims of his attack?It is in this context that we can appreciate the value of adoctrineof subjectivehumanrights. Thatis, this doctrineis valuablebecause it keeps attention focused on the individualbefore us, thispersonwho claims immunityfrom fundamental orms of injuryandassault. It does not follow that these claims can never be overridden.But because they have juridical force, they cannot be overriddenwithout some process of adjudication, n which the individual canspeak freelyon his own behalf. Thisprovisowould allow forjudicialpunishment, perhaps even capital punishment, but it is clearlyincompatible with torture,which is meant precisely to destroy aperson'scapacityto speakand act on his own volition.This, in my view, is why rightstalk matters-that is to say, whywe need a concept of subjective rights which adds somethingdistinctive to a general commitment of non-maleficence. Thisconcept is valuable andimportant orjust the same reasonthatmanyhave found it to be problematic,namely its focus on the individualand his claim to juridicalrecognition. By maintainingthis focus, itconfers on individuals the opportunity o assert their own sense ofdignity,and wherenecessary,their own sense of injurybefore societyas a whole.34 In this way, it is both an expression of, and a vitalsafeguardfor the dignity of the individual person. It is true thatrightstheories aresubjectto abuse, and need to be contextualizedbya wider frameworkof moraland social commitments. Nonetheless, Ibelieve that a strong concept of human rights is essential tomaintainingajust andhumanesociety, andfor thatreason,we should

34. I came to realize the significance of this aspect of naturalrights theoriesthroughreadingJudithN. Shklar,TheFaces of Injustice(Yale U Press, 1990), eventhoughnaturalrightstheoriesas such are not hermainfocus of concern there.

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JOURNALOFLAW& RELIGIONavoid the conclusion that"rights alk" s simply a dispensableway ofexpressingwhateverwe take to be anexigentmoral claim.35

35. A portion of this paper is taken from my Natural and Divine Law:Retrievingthe Traditionor ChristianEthics (Novalis: Ottawa& Eerdmans,1999)and the relevantsection is reprintedwith the kindpermissionof Novalis Press. Inaddition,earlierdrafts of this paperwere readduringa series of lecturessponsoredby the AustralianTheologicalForum,April 17-18, 1998, and at a faculty seminarsponsored by the ErasmusInstitute,the U of Notre Dame, December 8, 1998. Ibenefitedgreatlyfromthemanycommentsoffered at these lectures.

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