easy access to “Villey, Ockham and the
Origin of Individual Rights,” so that the
dozen other studies make this book a
feast indeed.
A few years ago in Rome, I picked up
Michel Villey’s Questions de saint Thomas sur le droit et lapolitique.It was anew
book (1987) and the author, too, was new
On Natural Law
to me. 1 read the book on the plane coming home and was enthralled. The book
and Natural Rights
is largely a meditation on key articles in
RALPH MCINERNY
Aquinas’s Treatise on Law. Villey’s a p
proach was fresh, unusual, and, I perThe Idea of Natural Rights: Studies on
ceived, related by way of modification to
Natural Rights, Natural Law a n d
previous things he had written. During
Church Law 1150-1625, by Brian
the next months I acquainted myself with
Tierney, Atlanta, Georgia:Scholars
some aspects of the vast scholarly proPress, 199 7.380p p .
duction of Villey. Did others know of
him? In 1988 I was a visiting professor at
Liberty, Right and Nature: Individual
Cornell and at a dinner party found myRights in Later Scholastic Thought,
self seated next to Brian Tierney. The
by Annabel S. Brett, Cambridge:
name was legendary, but at the time I
Cambridge UniversityPress, 1997.254
knew his work scarcely better than I had
PP.
known Villey’s. At a given point in the
conversation, it occurred to me to ask
IN ROMANLAW, right or ius was chiefly a
Tierney if he knew the work of Villey. I
property of things, their proper relation,
will not say that he levitated with delight,
not a claim residing in individual agents
but clearly I had put the right question.
because of their status as human beings.
To that point, Tierney had been witty
This has its roots in Aristotle’s c o n c e p
and entertaining; from then on, he betion of the right or just thing, to dikaion.
came authoritative and dazzling. A few
In recent centuries the notion of right
days later he gave me a n offprint of the
has become all but synonymous with
study of Villey that figures in chapter one
claim-rights which inhere in persons as
in this collection.
such and which political arrangements
If one were to seeka model of engaged
must take into account. Everyone agrees
objectivity in a scholar, this essay would
that this is a noteworthy change. How it
serve. Villey died in 1988 and it is doubtcame about is an intriguing historical
ful that he was treated more fairly by St.
question. No one has cast more light on
Peter than he had been by Tierney. It is
that question than Professor Brian
possible, indeed tempting, to pluck arTierney. Theldea ofNaturalRightsbrings
resting sentences from Villey and try to
together hitherto ungathered essays,
read everything he wrote in their light.
many of them quite recent. Students of
Tierney paid Villey the enormous comTierney would be grateful only to have
pliment of seeing t h a t t h e French
scholar’s thought hadaltered, that someh ~ MCINERNY
~ w is MichaelP. CraceProfessor
times h e expressed himself m o r e
ofMedievalStudiesanddirectorofthe Jacques
apodictically
thanatothers, that his work
Maritain Centeratthe UniversityofNotreDme.
represents
a
precious and complicated
He is the author of many scholarly works as
achievement, however flawed. Villey had
well as popular fiction.
can citizens into mere subjects of a n
unbridled judicial elite.
~~~
~
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a tendency t o see the history of law a s a
declension from the clarity of Roman
law. Things began to go bad in the Middle
Ages, went really bad in Second Scholasticism, and, in modern times, have led to
hilarious declarations of rights which
seem to be little more than whimsical
wish-lists. There is something to this account-and certainly the culminating
criticism is well-founded.
It is in the historical period Tierney
has made his own that Villey has located
the beginning of the dissolution. Villey is
led, in his reading of Aquinas, to insist on
a distinction between ius and lexwhich,
while there, does not permit the use of
natura hurnana rnutabilis est that Villey
wishes to make. Tierney rightly summarizes, “It seems, then, that Villey’s case
fora consistent distinction between droit
nature1 and loi naturelle in Thomas cannot be sustained.” If Villey had a keener
appreciation for the analogous use of
terms in Thomas, something exhibited in
Thomas’s use of both lex and ius, he
might have maneuvered more effectively
through the texts. It is this either/or tendency in Villey which exposes him to
criticism and which dims what is undoubtedly a major scholarly contribution.
Admirers of modernity might be supposed to be ready to accept the view that
only recently have we managed to get it
right about human beings and social and
political relations. Declarations of rights
inherent in human beings as such are a
starting point that set the modern off
from the premodern. Critics of modernity might correspondingly agree on the
contrast but insist that the modern move
is open to devastating objections. Villey,
as Tierney points out, was a structuralists before the fad, and insisted on the
need for a context, a network of practices, to provide the habitat of what is a
right. Somewhat similarly, Alasdair
MacIntyre was able to dismiss the very
concept of rights by arguing that the
carrier of rights is the unencumbered
individual; but there are no unencumbered individuals; therefore rights do
not exist, there being no carriers of them.
Moral concepts, MacIntyre insisted, require traditions and practices for their
very meaning.
William Ockham provides Villey with
the definitive turn away from the classical notion of right. Nominalism and subjective rights are logically linked by Villey,
and this is a link that Tierney effectively
questions. In doing this, he makes a
broader philosophical point. “We can
define the relationship of parents and
children in terms of an objectively right
order. Or we can define it in terms of
moral precept-‘Honor thy father and
thy mother.’ But we could also define the
same relationship by saying that parents
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have a right to the respect of their children.” Villey-like some disciples of Leo
Strauss, Tierney adds-is simply wrong
in saying that the notion of subjective
right is logically incompatible with classical natural right. As proof of their compatibility, he cites the work of Jacques
Maritain and of John Finnis.
If Villey’s view is that the Middle Ages
saw the beginning of the disintegration
leading to the chaos of modern legal
theory, Tierney has a decidedly different
view. H e counters Villey’s denial that
non-nominalist thinkers adopted subjective rights and then says of subjective
rights that “it was a characteristic product of the great age of creative jurisprudence that, in the twelfth and thirteenth
centuries, established the foundations
of the Western legal tradition.” For all
that, he grants Villey that there have
been abuses of rights language by many
modern theorists, but invokes against
him the Thomist principle that abusus
non tollit usum.
One of the great merits and attractions of Tierney as ascholar is that, while
insisting on the flaws of his opponent’s
overall position, he accords him the respect of having a basis for what he says
and thus in the end finds room for a
modified Villey within his own approach.
What now of Tierney’s own position?
The passage quoted above could convey the idea that there are different languages in which we can express the same
legal truth-those of objective right,
moral precepts o r subjective rights.
Tierney is clearly impressed with t h e
work of Maritain in showing the fundamental compatibility of natural law and
natural rights. As with the work of Finnis,
this suggests a kind of conceptual o r
logical equivalence of the modern and
the premodern. Of course, if subjective
rights are present even in Roman law,
this contrast of the modern and premodern may seem tendentious to t h e
degree that it is defined in terms of sub-
jective rights. But is there anyone who
would wish to say there is not a difference in emphasis in Aristotle and Roman
Law, on the one hand, and those who
draw up universal declarations of human
rights? Surely not. The claim of conceptual e q u i v a l e n c e t h a t is, the claim that
one can express rights in the language of
natural law-is a logical and not an historical point. The presence here and there
in antiquity and in the early Middle Ages
of an appeal to subjective rights must
always be linked to the more fundamental view that is captured in the theory of
natural law. It is not an alternative to it,
but a feature within it. The achievement
of Maritain in Man and the State, arguing
that natural law and natural right are
compatible, is undeniably impressive,
and Chapter 8 of Finnis’s NaturalLawand
Natural Right is perhaps the best available statement of the mutual implications of rights and duties. But what does
this prove?
It is one thing t o say that the traditional outlook, call it the natural law universe, can accommodate the notion of
subjective rights; these can even be regarded as evolving naturally from it
(Tierney) and making a major contribution to it (Finnis), but this does nothing
t o address the fact that modern natural
rights theories were advanced as alternatives tonaturallaw. The natural law theorist may be able to express his views in
rights language, but would the proponent of rights be able to repay the compliment? Of courseTierney does not want
to suggest that the developments he has
done more than anyone else to chronicle
and interpret amount to little more than
the fashioning of an alternative language.
He speaks from time to time of excessive
proponents of subjective rights and
seems to mean those who d o not have a
view of the human agent which is the
source of those rights. But what is one t o
do with proponents of subjective rights
who are skeptical of or dismissive of the
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very notion of nature or of a given order
of things? Is MacIntyre perhaps a better
reader of the signs of the times in seeing
conceptual chaos in rights claims that
are unanchored in a human nature?
Tierney’s “Conclusion” to this collection makes it clear that he needs no
instruction on the excesses and limitations of rights talk. Furthermore, by invoking Pope John XXIII’s Pacem in terris,
he makes clear his own understanding.
Rights and duties flow from the p e r c e p
tion of human beings as endowed with
intelligence and free will. “The popes of
our age, who have embraced so enthusiastically the idea of natural rights, after
their predecessors condemned it for
many years as an irreligious, Enlightenment aberration, have been returning,
unwittingly perhaps, t o a tradition rooted
in Christian jurisprudence and philosophy of the Middle Ages.” But the popes
who adopt the language of rights and
those who condemn them are not in disagreement with one another. Rights are
condemned when they are forwarded on
Enlightenment assumptions hostile to
and incompatiblewith Christianity; rights
are invoked insofar as they are attached
t o t h e perception of human nature
Tierney cites. He can sustain his irenic
stance only by suggesting that it was the
epigones of the Enlightenment who invoked, doubtless unwittingly, a tradition
rooted in Christian jurisprudence and
philosophy.
Tierney sees two major problems for
human rights. First, the almost absurd
inflation of rights talk that had caught the
attention of Villey, MacIntyre, Mary Ann
Glendon and others. Second, in many
places the most elementary rights are
denied subject peoples. But it is the conceptual problem that remains the most
fundamental. However true it may turn
out to be that the medieval roots of rights
theory of which Tierney has been the
principal historian is not a product of
“atomistic individualism,” however true
it is that rights theory could in the medieval period coexist with quite different
metaphysical outlooks, the common belief in man as created in the image of God
underwrote the conviction in the existence of a human nature. Tierney has
argued that Ockham’s nominalism is logically independent from his contributions
to incipient rights theory, and vice versa.
But t h e question remains whether
Ockham’s metaphysics is not radically
incompatible with the basic underpinning of his moral theory.
Professor Brett’s Liberty, Right and
Natureconcentrates on individual rights
in later Scholastic thought. She gives us
a close study of a pair encountered in
Tierney, dominium and ius, and argues
that while originally equivalent in the
Franciscan poverty literature and providing a link between property and liberty, and rooted in the positive dignity of
man, the equivalence becomes diluted in
the casuisitc literature to a juridical hold
over a thing or person and was expanded
beyond spiritual beings t o all of nature.
Nonetheless, Francesco d e Vitoria ignored this diluted casuistic understanding and returned to the earlier reliance
on spirituality, reflexivity, and liberty.
The chapters concentrate on particular centuries, but do not follow chronological order; the chapter on the fourteenth century precedes the chapter on
objective right in the Thomist tradition,
but then the account extends beyond the
thirteenth century. Chapters three and
four are particularly interesting, but then
thewhole bookis interesting. Brett brings
a sharp and knowledgeable eye to everything she treats, and casts new light on
even apparently well-worked subjects.
Her pages on the relevant chapters from
the Summa theologiae on ius and lex are
packed with sentences and paragraphs
which could have been expanded far
beyond the space she devotes to them.
This gives them at once a praiseworthy
pithiness and a teasing tendentiousness.
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Often this is because she accepts without rehearsing them the arguments of
o t h e r s . For example, s h e a c c e p t s
Gauthier’s claim that Thomas’s commentaryon theSer,tencesrelates to the rnoral
part of the Summa theologiaeas expositio
to quaestiones. And,in agreeingwith John
Finnis that the natural inclinations so
important in the Summa theologiaelalIae,
q. 94, a.2 do not involve a hierarchy, she
says they do involve a “series.” And then
we find this sentence: “Thusthose things
to which irrational natures incline and
which constitute their goods are equally
goods to which rational natures incline
and, and not in any sense lesser or subordinategoods.”Thisis anonsequiturwhich
trades o n t h e amphibolous u s e of
“equally.” But it would be churlish to
leave the impression that Brett’s is anything other than a book from which anyone can learn and which proceeds with a
care and taste for the truth that is wholly
admirable.
Both Tierney and Brett, in their different ways, subscribe to the view that the
once received opinion about the ravag-
ing effects of nominalism has been overturned by recent scholarship. (Aversion
ofthis can be found in Servais Pinckaers’s
The Sources of Christian Ethics [ 19851,
191-323).Still,both scholars refer respectfully to Michel Bastit’s La naissance de la
loi moderne, which is an energetic rearguing of the thesis of Villey. It could be
said that Bastit does not confront the
obstacles t o his thesis. It must be said
that the whole matter of the relation
between casuistry and moral theology,
between the moral theologians and the
expositors of the Nicornachean Ethics,
and of the correct comparison between
members of the two great mendicant
orders, is very much still on the table. On
the outcome of that continuing discussion will depend what can defensibly be
said of the relationship of modernity to
its predecessors. The magnificent scholarly work of Brian Tierney and now
Annabel Brett will be at the center of the
discussion. Kibitizing will be those who,
like the reviewer, retain a perhaps visceral preference for the Michel Villey
approach.
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