Ave Maria Law Review
Spring, 2005
Symposium: Rethinking Right: Historical, Political, and Theological Perspective
Article
Keynote Address
*23 HISTORICAL ROOTS OF MODERN RIGHTS: BEFORE LOCKE AND AFTER
Brian Tierney [FNd1]
Copyright  2005 by Ave Maria Law Review; Brian Tierney
INTRODUCTION
This paper will explore some of the historical roots of our modern culture of rights by considering the
work of John Locke, the teachings he inherited, and his influence on modern political thought. In addressing
these issues, it will move from very general comments to a discussion of specific themes concerning individualism
and natural law in Locke's work, with a final glance at the persistence of these themes in contemporary
rights theories. A principal purpose of the paper is to contest the view that Locke's doctrine of natural
rights should be seen as an aberration from an older and sounder teaching on natural law. Instead, it is argued
that Locke's characteristic ideas were rooted in a longstanding tradition of Western Christian thought,
even though we now often encounter these ideas in distorted or exaggerated forms.
On the most general level, the whole enterprise of seeking for historical roots requires justification
nowadays. Especially among medievalists, the current fashion emphasizes the "alterity," the otherness, of
the past. The medieval world was, indeed, very different from ours, but medieval people were not just quaint
aliens who believed in magic and witchcraft and improbable miracles. Their achievements were great; their
thought is interesting; they helped to make the modern world what it is. And it has always seemed to me that
one proper task of a historian--one reason for studying the past, even the medieval past--is to make our
present-day world, the world we live in, more intelligible.
*24 This task is complicated by the fact that there does not exist at present any consensus about the
philosophic or religious grounding of the rights that are asserted. Politicians typically pay lip service to human
rights, but intellectuals are sometimes more skeptical. All the mainstream Christian churches now endorse
the idea of human rights, and for Catholics, Pope John Paul II warmly embraced the principles of the
United Nations Universal Declaration of Human Rights [FN1] when he addressed the United Nations in
1979. [FN2] Yet, nowadays, some conservative Catholics are among the most severe critics of modern rights
talk. One critic, for instance, has observed that "Christianity actually has a deep resistance to the concept of
human rights," [FN3] and he expressed some uneasiness about the current Catechism of the Catholic Church
because it refers to the "inalienable rights of the human person." [FN4]
It is not only the present status of human rights that evokes controversy; there is also disagreement
about the early history of the idea. In The Idea of Natural Rights, I discussed the contributions of a series of
thinkers from the twelfth century to the seventeenth century, and the historical contexts within which they
worked. [FN5] I thought that in doing this, I had indeed explored the historical roots of modern rights, but
my book had an evident limitation. It ended with the work of Grotius at the beginning of the seventeenth
century, and so it failed to address a substantial body of current scholarship which asserts that a distinctive
concept of natural rights did not emerge until later, in the age of Hobbes and Locke. These thinkers, it is argued,
made a decisive break with the past by introducing a novel concept of individual natural rights that
was inherently incompatible with the established tradition of natural law. This view is accepted almost as an
article of faith by the followers of Leo Strauss, but it is not limited to them. The French author, Michel Vil-
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ley, who wrote very extensively on the early history of natural rights, also held that the *25 modern notion
of subjective natural rights was inconsistent with the classical idea of an objective natural right. [FN6]
I am inclined to agree that the work of Hobbes represents an aberration from earlier ideas about natural
rights and natural law, though some scholars have seen his work as derived from late medieval scholasticism.
In any case, his ideas have little to do with modern ways of thinking about human rights. Hobbes's
characteristic teaching was that individuals have rights, but no duty to respect the rights of others. Modern
codes of human rights enumerate rights that others are bound to respect. The situation is different with
Locke. His rights involved duties to others, and it is widely agreed that Locke's work was an important influence
in the formation of modern liberal ideas, including ideas concerning rights; but, if Locke influenced
modern ideas only by making a break with the ideas of his predecessors, then an investigation of preLockean
thought would be only an antiquarian game, without any relevance for our understanding of modern
concepts. Another possibility is that Locke's teachings were well-grounded in earlier juridical and philosophical
thought. The issue evidently requires reconsideration.
I. INDIVIDUALISM BEFORE LOCKE
Certain specific doctrines of Locke, discussed below, have been seen as innovatory by various modern
scholars. Their views typically rest on an underlying assumption that I want first to consider--the idea that,
in the seventeenth century, a new individualism replaced the more corporative ethos of earlier Western society
and introduced a new idea of natural rights into political thought. Especially in its more extreme forms,
this argument fails to treat adequately either Lockean individualism or earlier corporatist ideas. Nonetheless,
it is widespread in the modern literature among both earlier and more recent thinkers.
George Sabine, in his fine, old book on political theory, wrote that, in the seventeenth century, a new
priority of the individual marked the principal difference between medieval and modern thought. [FN7] Similarly,
d'Entrves asserted, "The new value is that of the *26 individual." [FN8] Leo Strauss maintained that
Locke's political thought was "revolutionary" because "the individual, the ego, had become the center and
origin of the moral world." [FN9] C. B. Macpherson emphasized "a new belief in the value and the rights of
the individual" that reflected the realities of seventeenth-century economic life. [FN10] Jack Donnelly observed,
more simply, that the rise of a market economy in the seventeenth century "created separate and distinct
individuals." [FN11] Modern communitarians criticize the Lockean idea of rights because, they argue,
it was based on a new doctrine of atomistic individualism. Charles Taylor wrote that for Locke, "[p]eople
start off as political atoms." [FN12]
In spite of this consensus, I have always been somewhat skeptical of the idea that we must wait until the
seventeenth century before we encounter an onset of individualism. In reading medieval sources for more
than half a century, the idea never spontaneously occurred to me that the people I was reading or reading
about were not real live individuals, aware of themselves as individuals. Other medieval scholars have apparently
had the same experience. One popular book on twelfth-century culture was called precisely The
Discovery of the Individual. [FN13] Then Alan Macfarlane found origins of individualism in the lives of
thirteenth-century English villagers. [FN14] A more common view holds that individualism really emerged
during the fourteenth century in the wake of Ockham's nominalism. Others find the origin of individualism
in the fifteenth century in the world of Renaissance humanism, or perhaps it was in the sixteenth century
with Protestant ideas on private judgment. One might also mention the Spanish neoscholastics as a likely
source. I especially like a passage written by Suarez. He argued that, even if the human race had remained in
a state of innocence, it would still have increased and multiplied. His reason was that "a multiplication of
persons confers beauty and dignity on the whole race through the diversity of many individual *27 perfections."
[FN15] One could go on and on. The truth is that, depending on whom you choose to read, you can
find the individual discovered or invented in any century you look at from the twelfth century onward.
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We need to remember, though, that these individuals always lived in communities. Indeed, the twelfth
century, that has been called an age of individualism, also saw the emergence of many new centers of corporate
life-- guilds, colleges, monastic houses, confraternities, and communes. Medieval people did not see
an antithesis between community loyalties and individual rights; they thought these two things reinforced
one another. [FN16] Whenever enough documentation survives to give us an insight into the inner workings
of a medieval community, we find a world of individuals interacting with one another, sometimes disputing
with one another. When a new commune was formed in the twelfth century by conjuration, a group of individuals
covenanting together, it would typically, first of all, seek a recognition of various rights and liberties
for its members. The reality was reflected in medieval jurisprudence, especially in canon law. The jurists did
not philosophize about the one and the many. Instead, they developed a complex structure of corporation
law that allowed for individual rights within corporate associations. In the field of political theory, Ptolemy
of Lucca wrote, around 1300, that the end of government was to "preserve each one in his right." [FN17]
In the twelfth and thirteenth centuries, we are in a world far removed from that of John Locke, but we
can perhaps already discern some roots of the tradition that he would inherit. Locke also thought that the
political community was a corporate association and that individuals had rights within it. As James Tully
and others have pointed out, he did not really present individual persons as antisocial creatures, isolated
atoms of humanity. [FN18] Instead, Locke observed that *28 "God ... designed Man for a sociable Creature"
[FN19] and wrote of man's "love, and want of Society." [FN20] In Locke's work, it was not the existence of
human society as such that called for an explanation, but the coming into existence of a specifically political
community.
II. LOCKEAN PROBLEMS
Not all scholars agree that Locke's work made a decisive break with the past. Many, probably most of
them, acknowledge that it carried on an earlier tradition of natural law thinking. But this perception does not
meet the objections of critics who assert that, although Locke referred to a law of nature, he went on to propound
views on the state as an artificial construct of reason and will, and on individual natural rights, that
were fundamentally incompatible with earlier concepts of natural law. Proponents of this view, however, often
show little understanding of the earlier tradition that Locke supposedly abandoned. In this situation, we
can best carry the argument further, not by general references to a preceding natural law tradition, but by
specific inquiries into the historical background of some of Locke's characteristic teachings. The topics to be
discussed are (1) the idea of individual consent to government, (2) the idea of self-ownership or selfmastery,
and (3) the existence of natural rights within a system of natural law thinking. [FN21] Each theme
involves, in one way or another, the ideas of individual rights and natural law. They are of central importance
in Locke's political thought, and each of them has been regarded by some scholars as radically innovat-
ory.
1. Individual Consent to Government
The initial topic may seem to be a non-issue because, as is widely known, the idea of popular consent to
government is often encountered in earlier sources; but the critics point out that, in these *29 earlier theories,
consent was always the consent of a corporate community; while for Locke, individuals were the source
of political authority. James Tully, for instance, wrote that Locke's "premise of political individualism ... is
one of the major conceptual innovations in early modern political thought." [FN22]
This argument runs into an obvious objection. In Locke's teaching, the consent that instituted a government
was precisely the corporate consent of a community. Locke argued that a political society came into
existence when a group of people "incorporated" and formed themselves into "one Body Politick." [FN23] A
collection of separate individuals could act together only with the agreement of each person which, Locke
observed, was "next impossible ever to be had." [FN24] Once they were incorporated, however, the mem-
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bers of the community could act by the consent of a majority to institute a government for themselves.
[FN25]
To be meaningful at all, then, the argument that Locke introduced a novel doctrine of individual consent
must refer to the initial consent to establish a political community. This is, indeed, one of the points where
Locke is said to have made a break with past teachings. Charles Taylor observed that in earlier thought, it
was understood that a community could institute a government, but the existence of the community itself
was taken for granted; the important change in the seventeenth century was that the existence of the community
itself had to be explained by assuming a prior consent of individuals. [FN26] Michael Zuckert also
held that in pre-Lockean thought, "The collectivity, or the corporation, is the original home and source of
political power ... and not the individual, as in Locke." [FN27] Zuckert also maintained that Locke rejected
the central doctrine of Aristotelian and Thomist political philosophy, the naturalness of political life, and envisaged
instead a state of nature where a political community had to be created by human artifice. [FN28]
But, the argument continued, earlier thinkers who accepted the Thomist view could not have imagined such
a condition of humanity in which people lived under *30 natural law but without any political institutions.
This was because, as Zuckert put it, "natural law mandated and provided for political life." [FN29] For medievals,
then, political society was natural; for Locke, it was a work of human artifice. There is, apparently,
a gulf between the two positions.
This whole argument is based on a misunderstanding of medieval thought about natural law and human
nature. According to the natural law that medieval jurists and philosophers knew, humans were by nature
free and equal. For many of them, as for Locke, it was the fact of subordination under a government that
called for an explanation. The Aristotelian teaching that the polis was natural to man in the sense that humans
could flourish best in a political society was widely accepted. Locke himself thought that life in a
political community was best for humans, but it was not taken to mean that such societies just came to exist
naturally without any human initiative.
Giles of Rome made the point clearly in a very widely-read work written toward the end of the thirteenth
century. Although political society was natural to man in one sense, Giles wrote, it was not natural in
the same way that it was natural for a stone to fall or fire to heat. Natural law did not drive men willy-nilly
into politically ordered communities. Many people, Giles noted, still did not live in that way. The fact that
the polis was natural in Aristotle's sense did not exclude the necessity for a political society to be actually
brought into existence through "the work and industry of men" and "by human artifice." [FN30]
There are various examples in the centuries before Locke of writers who envisaged a beginning of political
society through individuals consenting together to enter into compacts with one another. Already in the
twelfth century, the canonist Rufinus envisaged a state of affairs after the fall of Adam when humans lived
without any ordered government and with only the law of nature to guide them. He depicted the human condition
as brutish and savage rather in the manner of Hobbes. However, Rufinus wrote that men retained
enough sense of justice to come together and enter into compacts and covenants with one another and establish
a body of law *31 by which they could live. [FN31] This is perhaps reminiscent of Cicero's De Inventione
[FN32] but with a significant change. In Cicero's argument the scattered individuals were brought together
by the skill of a great orator. [FN33] In Rufinus's account, they came together voluntarily to enter into
compacts with one another.
In the next century, Duns Scotus took up a similar theme. He imagined a group of strangers coming together
to build a city. There would be no patriarchal or political authority among them, but they would feel
the need of some governance. And so, Duns wrote, they could consent together that each individual would
submit himself to the whole community or to a ruler whom they would choose. [FN34] Vitoria also envisaged
individuals uniting to form a political community, and he observed that they would all at first be equal
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since each had a natural right of self-defense. [FN35] Prior to Locke, Suarez provided the most detailed account
of individuals consenting together to institute a political society. Among a group of scattered persons,
he wrote, there would be no inherent ruling authority; but, once the individuals had come together to form a
political body, then the community could establish for itself any form of government it chose. The community
itself, Suarez emphasized, could be brought into existence only by "the special will and common
consent" of the individuals who composed it. [FN36] If Locke had chosen to look for some earlier texts to
substantiate his argument about individual consent, he would have found no shortage of authorities.
2. Self-Ownership and Self-Mastery
Locke wrote, famously, that "every Man has a Property in his own Person. This no Body has any Right
to but himself." [FN37] Locke also wrote that humans belong ultimately to God, that "they are his *32 Property,
whose Workmanship they are." [FN38] The two ideas are not contradictory. In discussing the origin of
property in general, Locke noted that it was held under the supreme dominion of God, and John Simmons
has rightly argued that Locke conceived of ownership of self in the same way, as a sort of trust from God.
[FN39]
Both ideas, self-ownership and divine ownership are important to Locke's argument. Self-ownership expressed
an idea of human autonomy. A man belonged to himself so he was not subject to anyone else except
with his own consent; he was naturally free, endowed with a "Liberty of acting according to his own Will."
[FN40] He owned himself and his actions and he could licitly acquire property by his own labor, but because
a man belonged also to God he was not free to destroy or injure himself or another person. [FN41]
Locke's idea of self-ownership is another aspect of his work that has sometimes been seen as innovatory.
C. B. Macpherson found in it a new kind of possessive individualism where "[t]he relation of ownership
... was read back into the nature of the individual." [FN42] Michael Zuckert, emphasizing a supposed contradiction
between God's ownership and self-ownership, thought that Locke's doctrine "points toward his break
with the entire premodern tradition." [FN43] In fact, the complex of ideas regarding self-ownership and divine
ownership that we find in Locke has a long prehistory in previous thought going back at least to the
thirteenth century.
An initial difficulty in tracing this earlier history arises from the fact that the Latin word "dominium,"
commonly used in pre-Lockean discourse, could mean either ownership or mastery, understood as control or
rulership. Locke used the English word "dominion" in both senses and he too wrote of self-mastery as well
as of self-ownership. For instance, Locke wrote that man was "Master of his own Life" [FN44] or "Master of
himself, and Proprietor of his own *33 Person," [FN45] here implying both relations, of mastery and of
ownership. In tracing more remote anticipations of Locke's doctrine, we need to consider both ideas.
I will begin with Aquinas since he is so often regarded as a prototypical medieval thinker. Aquinas expressed
his own doctrine of autonomy in his teaching that humans are by nature free and equal, not subordinated
to one another as a means to an end. "Nature made us all equal in liberty .... For by our nature no one
is related to another as to an end." [FN46] Aquinas also wrote of "human dignity, by which a man is naturally
free and exists for himself." [FN47] He made various references to man's dominion of his acts or dominion
of self. In these contexts he expressed the idea of human freedom, understood both as free will, the ability
to make choices between different courses of action, and freedom from unjust subjection to another. According
to Aquinas, humans differed from all other creatures precisely because "they have dominion of their
actions through free choice." [FN48] In other discussions, Aquinas also taught that humans' self-dominion
made possible their ownership of external things. The various threads of argument were brought together in
a passage from De Perfectione Spiritualis Vitae, where Aquinas was discussing renunciation of property and
self-abnegation.
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Nothing is more pleasing to man than the liberty of his own will, for through this man is owner
[dominus] of other things ... through this also he masters [dominatur] his own actions ... so in foregoing
the judgment of his own will, through which he is master [dominus] of himself, he is found to deny himself.
[FN49]
In the texts of Aquinas, dominium is usually best translated as mastery, though there is occasionally
some ambiguity. Other thirteenth-century authors, including Peter John Olivi and Henry of *34 Ghent,
treated self-dominion more overtly as self-ownership. Olivi, by chance, used a phrase almost identical with
one of Locke's. Locke noted that a man was "Lord of his own Person and Possessions." [FN50] Olivi wrote
that "each one is lord of himself and of his own," dominus sui et suorum. [FN51] Olivi also added a qualification
like Locke's; a man was only lord of himself in things that were not contrary to God. [FN52]
Henry of Ghent addressed the issue of self-ownership by asking whether a criminal justly condemned to
death had a right to escape if he could do so in order to preserve his life. Henry argued that two persons
could have power over the same thing in different ways; one might have property, and the other, use. In this
case the judge had a right to use the body of the criminal by imprisoning and even executing him, but only
the criminal had property in himself under God. "Only the soul under God has power as regards property in
the substance of the body." [FN53] The conclusion of the argument was that the criminal's property right in
himself prevailed; he could and should escape if an opportunity offered. [FN54]
Among the later writers who addressed this theme, I will mention especially Vitoria. His work is interesting
because he first used the idea of self-ownership as a theological concept and then deployed it in a
political context to defend the rights of American Indians. While discussing problems concerning property
rights in his commentary on the Summa Theologiae of Aquinas, Vitoria encountered an argument of Richard
FitzRalph. [FN55] According to FitzRalph, since all dominium came from God, a person who excluded himself
from divine grace by falling into sin could not be a true owner of anything. Vitoria replied by appealing
to the doctrine of self-ownership. If FitzRalph was right, he argued, then a sinner would not be the true owner
of his body or his acts, and so the sinner would sin again in performing any bodily action, which Vitoria
evidently regarded as absurd. Vitoria went on to argue here that man was the owner of his spiritual goods
and of his "natural goods," such as his life and limbs. As owner of his own *35 body, Vitoria argued, man
could use it as he pleased; otherwise he would be a slave. Here again the natural freedom of choice was associated
with freedom from servitude. Then Vitoria raised a problem that would recur in Locke's work. How
could a man be owner of himself when he belonged to God who was "lord of life and death"? Vitoria replied
that, "[a]lthough God is the prime owner, still he grants dominion to man ... not for every kind of use, but for
licit ones." [FN56] Self-ownership did not permit a man to kill or injure himself or another person.
When Vitoria turned in a later work to a defense of Indian rights, he argued that God had granted
dominion over worldly things to the whole human race, but he had to respond to an argument asserting that
the Indians were incapable of ownership because they lived in a state of sin. [FN57] Vitoria replied by reformulating
the argument he had used against FitzRalph. If sin took away all rightful ownership then a sinner
would lose his natural ownership of his own body and his own acts. [FN58] Vitoria argued that this was
evidently not the case. A sinner still had the right to defend his own person. [FN59]
Another argument that Vitoria refuted asserted that, according to Aristotle, all barbarians were natural
slaves; hence, the Indians were slaves and, as slaves, could not own anything. [FN60] Here again Vitoria introduced
the concept of self-ownership. Even if the Indians were inferior in intellect, which Vitoria did not
concede, and so could be called natural slaves in Aristotle's sense, as better fitted to serve than to rule, still
this did not mean that they naturally belonged to others and had no ownership of themselves or of their property.
[FN61] That would be a condition of penal servitude. No one was such a slave by nature, Vitoria insisted.
[FN62]
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Suarez also referred to ownership or mastery of self in various contexts scattered throughout his works
and he too used the concept to assert man's natural freedom. Suarez wrote that, as a rational creature, man
was dominus of his acts; accordingly, he was "naturally *36 free and not a slave." [FN63] In arguing against
the supposed tyranny of King James I of England, Suarez maintained that human freedom was grounded on
the natural dignity of man and that this natural freedom included a power of ruling oneself but excluded involuntary
subjection to another. Hence, legitimate government had to be based on consent, on "human institution
and election." [FN64] Locke argued in the same way when he wrote against the supposed tyranny of
James II.
Subsequently, the idea of self-ownership was taken up by Grotius and then by the English Levellers.
Among them, Richard Overton wrote, most strikingly, "To every individual in nature, is given an individual
property by nature, not to be invaded or usurped by any: for every one as he is himself, so he hath a selfpropriety
...." [FN65] When Locke took up this same theme he was continuing in his own way a longstanding
tradition of thought.
3. Natural Rights and Natural Law
After individual consent and self-dominion, a final theme we have to consider is a supposed opposition
between traditional natural law and natural rights. Ernest Fortin, for instance, has maintained that the move
from natural law thinking to an assertion of natural rights in the seventeenth century was not only a
paradigm shift but "the paradigm shift in our understanding of justice and moral phenomena generally."
[FN66] On this view, natural law is seen as a higher law that dictates the way we should live with its commands
and prohibitions; while natural rights express a principle of human autonomy, of individual selfassertion,
and the two doctrines are held to conflict with one another. Jack Donnelly wrote, "Liberties and
entitlements distinguish rights from law so fundamentally that we can say that law and rights point in different
directions." [FN67] Walter Berns stated the argument in an extreme form when he wrote that "to espouse
the one teaching [natural law] is to make it impossible reasonably to espouse *37 the other [natural rights]."
[FN68] Other scholars, including Knud Haakonssen and L. W. Sumner, have argued that the only rights that
can exist within a framework of natural law are rights to obey the mandates of the law, but, as Michael
Zuckert observed, this implies nothing about "a realm of personal sovereignty or of free choice." [FN69]
Law directs our actions; rights leave us free to choose. A system of thought based on natural law must, then,
be antithetical to one based on natural rights. Yet, Locke certainly asserted a doctrine of natural law while
also maintaining that humans are endowed with natural rights. [FN70] It seems, then, that we must either regard
Locke's whole structure of thought as incoherent or embrace the Straussian doctrine and assume that
Locke did not really believe in the doctrine of natural law that he overtly presented. [FN71]
But here again we are dealing with a misunderstanding of the earlier tradition of natural law. PreLockean
theories of natural law included an idea of natural rights. We have already seen that medieval and
early modern thinkers before Locke were much concerned with human freedom, understood both as free will
and as freedom from subjection to others. Locke's way of expressing this was to state that we are free to exercise
our rights "within the bounds of the Law of Nature" [FN72] or "within the permission of the Law of
Nature. " [FN73] In writing like this, Locke was again adhering to an old tradition of thought, one in which
natural law was not seen as opposed to human freedom but as defining it. The ideas of natural law and natural
rights had coexisted harmoniously enough for centuries before Locke. From the twelfth century onward, it
was commonly held that natural law did not only command and forbid, but also left to humans a wide range
of discretionary behavior where they were free to choose their own courses of action and had a right to *38
act as they chose. [FN74] This tradition of thought flourished from the twelfth century to the eighteenth century,
when it was still vigorously asserted, especially among the professors of natural law in German universities.
In the generation after Locke, Christian Wolff wrote, "The law of nature is called permissive ...
when it gives us a right to act." [FN75]
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Here again I can point to only a few steps in the earlier development of the doctrine. The idea of a permissive
natural law first emerged in the writings of twelfth-century canonists who commented on Gratian's
Decretum when they considered the origin of individual property. According to Gratian, by natural law all
things were common. How then could one justify the private property that actually existed? One solution argued
that the law involved here was merely permissive. Natural law did not actually command that all property
always be held in common, but only indicated that this was a legitimate state of affairs. It left humans
free to choose either community of property or individual ownership as they saw fit. [FN76]
Subsequent generations of jurists and philosophers used the idea of permissive law to carve out, so to
speak, a sphere of human freedom and autonomy within the realm of natural law itself. In one early development,
the fourteenth-century canonist Johannes Andreae distinguished different kinds of permissive law.
Such law, he argued, could leave certain types of behavior unpunished, or it could forbid others from impeding
a permitted behavior, or it could actually lend support to the permitted act. [FN77] Duns Scotus approached
the idea differently when he considered divine law. He wrote that in principle we are obliged to
God in everything we do; but, he added, God does not ask so much of us; he demands only that we do not
violate the precepts of the Ten Commandments. The conclusion of Duns Scotus was that, where God does
not specifically impose an *39 obligation on us in the Decalogue, he leaves us to the liberty of our own
wills. [FN78]
In the sixteenth century, Vitoria made an explicit connection between permissive law and individual
rights. Vitoria was trying here to extract a doctrine of natural rights from Aquinas's teaching on law, and he
quoted Aquinas's statement that "law is the ground of right." [FN79] Vitoria took this to mean that a right
was what the law permitted. He continued, "And so we use the word when we speak for we say, 'I have not a
right (ius) to do this,' that is it is not permitted to me or again, 'I have a right,' that is, it is permitted." [FN80]
Suarez also explored the relation between rights and permissive law when he faced an objection to the
whole concept of permissive law that would also be raised by later critics. The nature of law is to impose obligation,
but permission is opposed to obligation. Suarez replied that even permissive law created obligation,
not on the one who chose to act or not act in accordance with the permission, but on others. [FN81] Specifically,
it imposed an obligation on judges not to punish the permitted act. Suarez noted here that positive civil
law sometimes had to permit behavior that was intrinsically evil; he mentioned fornication and adultery.
[FN82] Such permission meant only that the behavior was not prohibited by law. On the other hand, law
permitting acts that were blameless in themselves conferred "a positive faculty or license or right." [FN83]
Suarez argued in a similar fashion when he considered the realm of natural law and the old problem of
private property. Like the canonists, he maintained that a permissive natural law justified the acquisition of
individual property, but he added an intricate argument to prove that the law also gave rise to a natural right.
[FN84] In another discussion, he explained that many things could be done rightfully in accordance with
natural law that were not commanded *40 or forbidden but that were natural rights, and, he added, reason
shows us what is permitted as well as what is commanded. [FN85]
Suarez emphasized humans' freedom to make their own maps of life in another context when he considered
Aquinas's argument that the goal of life on this earth is felicity or happiness and that this goal is ineluctable.
According to Aquinas we cannot not want to be happy. [FN86] Suarez did not dispute this, but he
argued that the doctrine applied only to the one final goal and that there were many other particular goals
where humans were free to choose. [FN87]
The tradition of permissive natural law that developed by the seventeenth century did not assert only a
right to obey the mandates of the law. It did not maintain, as one modern critic has argued, that we must ask
permission of the law before acting. [FN88] Rather, the natural law left large areas of human conduct un-
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determined by its commands and prohibitions; it recognized a realm of human autonomy where persons had
a natural right to act as they chose. That is what Locke meant when he affirmed a doctrine of natural law
and of natural rights "within the permission of the Law of Nature." [FN89]
III. RIGHTS AFTER LOCKE
The historical contingency that helped shape Locke's teaching on rights was the constitutional crisis of
the 1680s in England. Reflecting on an old tradition of thought in these new circumstances, Locke made his
own distinctive contribution to the developing doctrine of natural rights, especially in his treatment of religious
liberty. However, the development of a modern theory of human rights was far from complete in
Locke's day. When we consider any living tradition, we are dealing with growth and change, but change in
which each generation builds on the work of its predecessors. Modern human rights, though, are so different
from anything that was envisaged in Locke's day in their scope and content that we have finally to consider
whether anything of the earlier tradition really has persisted into the modern world.
*41 The story is certainly not one of uninterrupted progress. New movements of thought in the nineteenth
century--Marxism, utilitarianism, anthropological relativism--eroded belief in any natural rights common
to all people. Then, in the years after World War II, there came a sudden new flourishing of concern for
universal rights, now called human rights. The historical contingency that led to the change is well understood.
The new enthusiasm for human rights grew out of a horrified reaction to the atrocities of the Nazis in
World War II. As Michael Ignatieff succinctly observed, referring to the United Nations Universal Declaration
of Human Rights of 1948, "Without the Holocaust, then, no Declaration." [FN90] Ignatieff saw the Declaration
itself as "a studied attempt to reinvent the European natural law tradition," [FN91] and he quoted
Isaiah Berlin as stating, "Because these rules of natural law were flouted, we have been forced to become
conscious of them." [FN92] The point is that, within the old tradition of natural law there was embedded a
doctrine of natural rights, and it was that aspect of the tradition that was revived. Moral outrage does not
have to be expressed in a language of rights. But, in this case, a centuries-old tradition of natural rights
already existed. It was "historically available" as Ignatieff again remarked, ready at hand to be taken up and
applied to the circumstances of a new age. [FN93] That is why an awareness of the old tradition can help us
to understand modern movements of thought.
We can finally ask how far the three specific strands of thought that we discussed--individual consent,
self-dominion, and permissive law--have survived in the multifarious modern theories of rights. As to the
first, modern political scientists no longer base their theories of consent to government on a Lockean state of
nature. But the idea of humans deliberating together in a prepolitical society has been reinvented, one might
say repristinated, in John Rawls's idea of an "original condition" and applied in a novel way in his very influential
theory of justice. [FN94]
Our second theme, the idea of self-dominion, is surprisingly prevalent in the modern literature, and it is
currently used to mean both self-ownership and self-mastery. Some writers, following C. B. Macpherson, attack
the idea as a form of the possessive individualism *42 that has led to all the alleged abuses of modern
capitalism. Libertarians commonly take self-dominion as the foundation of their doctrine with frequent references
to Locke and even an occasional mention of Aquinas. Some left-wing authors have even used the
idea of self-ownership as the starting point for socialist or egalitarian theories of society. [FN95]
Our third theme, the idea of rights within a permissive natural law, invites comparison with the modern
idea that rights are based on human autonomy. The issue is complicated. Medieval and early modern
thinkers had their own ideas about autonomy, but there is no generally accepted modern theory to compare
them with. Susan Brison, for instance, has discussed six different theories of autonomy in the current philosophical
literature. [FN96] However, although the language of natural law is not fashionable nowadays, it is
still generally agreed that all rights are limited by law, either by civil law or by moral considerations inher-
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ent in the concept of the right itself. Robert Nozick presented a libertarian view of society, but still he
treated rights as constraints on behavior because they limit the ways we can act toward other right-bearers.
"My property rights in my knife allow me to leave it where I will," he wrote, "but not in your chest." [FN97]
Nozick added here that we are only free to choose among "acceptable options." [FN98] Earlier thinkers,
Emerich de Vattel for instance, expressed the thought by writing of a right to act within the realm of what is
morally permissible. Others, in still more old-fashioned language, had written of rights within the permission
of the law of nature. Looking at the whole modern picture one can only conclude that, although much
has changed, something still survives from an older tradition in the modern welter of rights and rights theories.
[FN99]
There remains one last problem. As Mary Ann Glendon pointed out in Rights Talk, a language of rights
has become so widely diffused and often abused, that it threatens to infiltrate the whole of *43 our moral
discourse and to impoverish it. [FN100] It is this abuse of rights language, I suppose, that has led some conservative
Christians to characterize our whole culture of rights with phrases like "corrosive selfishness"
[FN101] and "narcissistic atomization." [FN102] But some persons have always been selfish and narcissistic.
The existence of such people is not just a product of a modern culture of rights--one could find plenty of
examples in the Old Testament. So we ought to consider the proper use as well as the abuses of modern
rights language. Mary Ann Glendon provides good guidance here. She effectively skewered the abuses of
"rights talk" in an early book, but she does not regard such abuses as inherent in the idea of human rights itself.
In a later work, she argued that the abuses are not built into the founding program of the whole modern
rights movement, the United Nations Universal Declaration of Human Rights, a document that Glendon,
along with Pope John Paul II, has warmly praised. [FN103] The Declaration, she points out, does not assert
a selfish and atomistic individualism. [FN104] It is grounded on the "inherent dignity" of the human person;
it affirms that the "family is the natural and fundamental group unit of society," and it declares that
"[e]veryone has duties to the community." [FN105] Perhaps it is inevitable that abuses will arise, but they do
not have to be embraced. They can always be resisted. The principle we should apply here, I think, is the
medieval adage abusus non tollit usum: abuse does not take away rightful use.
The notion of natural rights or human rights had a long history in Christian thought before it assumed its
more secular modern forms. The idea has always expressed an ideal, never fully realized in practice, but it
has provided a strong weapon against various forms of oppression in the past. Given the less amiable proclivities
of human nature, we should do well to preserve the ideal for future generations. They too may find
it useful to have such a notion "historically available" in the contingencies of their times.
[FNd1]. Bryce and Edith M. Bowmar Professor in Humanistic Studies Emeritus, Cornell University. (The
translations of foreign language texts in this article are by the author. The editors acknowledge the assistance
of Daniel P. McGuire in checking the Latin sources.)
[FN1]. Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., at 71, U.N.
Doc. A/810 (1948).
[FN2]. See generally Pope John Paul II, Address to the 34th General Assembly of the United Nations in
New York (Oct. 2, 1979), in 24 THE POPE SPEAKS 297 (1979).
[FN3]. ROBERT P. KRAYNAK, CHRISTIAN FAITH AND MODERN DEMOCRACY: GOD AND
POLITICS IN THE FALLEN WORLD 153 (2001).
[FN4]. Id. at 182 (citing CATECHISM OF THE CATHOLIC CHURCH  1907 (2d ed. 1997)).
[FN5]. BRIAN TIERNEY, THE IDEA OF NATURAL RIGHTS: STUDIES ON NATURAL RIGHTS,
NATURAL LAW AND CHURCH LAW, 1150-1625 (1997).
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[FN6]. See MICHEL VILLEY, LA FORMATION DE LA PENSEE JURIDIQUE MODERNE [THE
FORMATION OF MODERN JURIDICAL THOUGHT] 227 (4th ed. 1975).
[FN7]. GEORGE H. SABINE, A HISTORY OF POLITICAL THEORY 433 (1937).
[FN8]. A. P. D'ENTREVES, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY 54 (8th
ed. 1964).
[FN9]. LEO STRAUSS, NATURAL RIGHT AND HISTORY 248 (1953).
[FN10]. C. B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM:
HOBBES TO LOCKE 1 (1962).
[FN11]. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 64 (1989).
[FN12]. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY
193 (1989).
[FN13]. COLIN MORRIS, THE DISCOVERY OF THE INDIVIDUAL, 1050-1200 (1972).
[FN14]. See generally ALAN MACFARLANE, THE ORIGINS OF ENGLISH INDIVIDUALISM: THE
FAMILY, PROPERTY AND SOCIAL TRANSITION (1978).
[FN15]. FRANCISCO SUAREZ, De Opere Sex Dierum [On the Work of Six Days], in 3 OPERA OMNIA
381 (D. M. André ed., 1856).
[FN16]. Jacques Maritain made a similar point in discussing modern society. See JACQUES MARITAIN,
THE PERSON AND THE COMMON GOOD 55 (John J. Fitzgerald trans., 1947) ("[T]here is nothing more
illusory than to pose the problem of the person and the common good in terms of opposition.").
[FN17]. Ptolemy of Lucca, De Regimine Principum [On the Government of Princes], in 7 THOMAS AQUINAS,
OPERA OMNIA 558 (Roberto Busa ed., 1980).
[FN18]. JAMES TULLY, A DISCOURSE ON PROPERTY: JOHN LOCKE AND HIS ADVERSARIES 11,
24, 49 (1980). For further references on this, see A. JOHN SIMMONS, THE LOCKEAN THEORY OF
RIGHTS 111 n.127 (1992).
[FN19]. JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 402 (Peter H. Nidditch
ed., Oxford Univ. Press 1975) (1690).
[FN20]. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 352 (Peter Laslett ed., Cambridge Univ.
Press 2d ed. 1970) (1690).
[FN21]. In discussing these themes I am in part summarizing the results of a group of recent and forthcoming
articles. See Brian Tierney, Permissive Natural Law and Property: Gratian to Kant, 62 J. HIST. IDEAS
381 (2001); Brian Tierney, Natural Law and Natural Rights: Old Problems and Recent Approaches, 64 REV.
POL. 389 (2002); Brian Tierney, Corporatism, Individualism, and Consent (forthcoming) [hereinafter Tierney,
Corporatism]; Brian Tierney, Dominion of Self and Natural Rights (forthcoming).
[FN22]. JAMES TULLY, AN APPROACH TO POLITICAL PHILOSOPHY: LOCKE IN CONTEXTS 15
(1993).
[FN23]. LOCKE, supra note 20, at 349.
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[FN24]. Id. at 350.
[FN25]. See id. at 348-51, 355. Locke uses the word "incorporate" repeatedly in discussing the origin of
government.
[FN26]. TAYLOR, supra note 12, at 193.
[FN27]. MICHAEL P. ZUCKERT, NATURAL RIGHTS AND THE NEW REPUBLICANISM 226 (1994).
[FN28]. Id. at 229.
[FN29]. Id. at 230. Others who have contrasted Locke's individualism with an earlier tradition of corporate
consent include Cary Nederman, Francis Oakley, Patrick Riley, and Paul Sigrnmund. On their views see
Tierney, Corporatism, supra note 21.
[FN30]. AEGIDIUS ROMANUS, DE REGIMINE PRINCIPUM LIBRI III [THREE BOOKS ON THE
GOVERNMENT OF PRINCES] 320 (1556).
[FN31]. MAGISTER RUFINUS, SUMMA DECRETORUM 4 (Heinrich Singer ed., 1902).
[FN32]. CICERO, DE INVENTIONE (H. M. Hubbell trans., Harvard Univ. Press 1949).
[FN33]. See id. at 7.
[FN34]. JOANNIS DUNS SCOTUS, Quaestiones in Quartum Librum Sententiarum [Inquiries Regarding the
Fourth Book of the Sentences], in 18 OPERA OMNIA 266 (4.15.2) (Luke Wadding ed., 1894).
[FN35]. FRANCISCO DE VITORIA, De Potestate Civile [On Civil Jurisdiction], in OBRAS DE FRANCISCO
DE VITORIA 147, 159 (Teofilo Urdanoz ed., 1960).
[FN36]. FRANCISCO SUAREZ, Tractatus de Lege et Deo Legislatore [A Treatise on Law and God the Legislator],
in 5 OPERA OMNIA 181, 183, 184 (3.2.4, 3.3.6, 3.4.1) (Carolo Berton ed., 1859).
[FN37]. LOCKE, supra note 20, at 305.
[FN38]. Id. at 289.
[FN39]. See id. at 186 (noting that "in respect of God ... who is sole Lord and Proprietor of the whole
World, Mans Propriety in the Creatures is nothing but that Liberty to use them, which God has permitted");
SIMMONS, supra note 18, at 102. Aquinas had taught the same doctrine centuries earlier. See THOMAS
AQUINAS, Summa Theologiae, in 2 OPERA OMNIA 612 (2.2ae.66.1) (Roberto Busa ed., 1980).
[FN40]. LOCKE, supra note 20, at 327.
[FN41]. See id. at 289, 306.
[FN42]. MACPHERSON, supra note 10, at 3.
[FN43]. ZUCKERT, supra note 27, at 276.
[FN44]. LOCKE, supra note 20, at 401.
[FN45]. Id. at 316.
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[FN46]. THOMAS AQUINAS, In Quattuor Libros Sententiarum [Commentary on the Four Books of the
Sentences], in 1 OPERA OMNIA 255 (2.44.1.3) (Roberto Busa ed., 1980); see also id. at 613 (4.38.1.4)
("There are some things in which a man is so free that he can act even against the command of the pope.").
[FN47]. AQUINAS, supra note 39, at 610 (2.2ae.64.2).
[FN48]. Id. at 355 (1.2ae.1.2).
[FN49]. THOMAS AQUINAS, De Perfectione Spiritualis Vitae [On the Perfection of the Spiritual Life], in
3 OPERA OMNIA 560 (Roberto Busa ed., 1980). The idea that self-dominion made possible the ownership
of external things was commonplace in late medieval thought. There are occasional references to labor as a
source of property right but Locke's "mixing" metaphor is original with him.
[FN50]. LOCKE, supra note 20, at 368.
[FN51]. PETER JOHN OLIVI, Quodlibet I, Q.17 (Amleto Spicciani trans.), in 73 STUDI FRANCESCANI
317, 319 (1976).
[FN52]. Id. at 321.
[FN53]. HENRY OF GHENT, Quodlibet IX, in 13 OPERA OMNIA 309 (R. Macken ed., 1983).
[FN54]. Id.
[FN55]. 2 FRANCISCO DE VITORIA, DE JUSTITIA [ON JUSTICE] 107-09 (R. P. Vicente Beltrán de
Heredia ed., 1934).
[FN56]. Id. at 109. FitzRalph used the word dominium to mean both rulership and ownership, but in the contexts
discussed above Vitoria was discussing specifically property right.
[FN57]. FRANCISCO DE VITORIA, De Indis Recenter Inventis Relectio Prima [The First Discourse on the
Recently Discovered Indies], in OBRAS DE FRANCISCO DE VITORIA 665 (Teofilo Urdanoz ed., 1960).
[FN58]. Id. at 654.
[FN59]. Id.
[FN60]. Id. at 665.
[FN61]. Id.
[FN62]. Id.
[FN63]. SUAREZ, supra note 36, at 183 (3.3.6).
[FN64]. FRANCISCO SUAREZ, Defensio Fidei Catholicae [A Defense of the Catholic Faith], in 24 OPERA
OMNIA 210 (3.2.11) (Carolo Berton ed., 1859).
[FN65]. RICHARD OVERTON, AN ARROW AGAINST ALL TYRANTS 3 (The Rota 1976) (1646).
[FN66]. ERNEST L. FORTIN, Human Rights and the Common Good, in 3 COLLECTED ESSAYS 19, 20
(J. Brian Benestad ed., 1996).
[FN67]. Jack Donnelly, Natural Law and Right in Aquinas' Political Thought, 33 W. POL. Q. 520, 529
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(1980).
[FN68]. WALTER BERNS, IN DEFENSE OF LIBERAL DEMOCRACY 8 (1984). In fact not all modern
rights are based on human autonomy. Some are grounded on need or various entitlements. But "choice
rights" represent the principal area where a conflict is said to exist between traditional natural law and modern
natural rights.
[FN69]. MICHAEL P. ZUCKERT, LAUNCHING LIBERALISM: ON LOCKEAN POLITICAL PHILOSOPHY
185 (2002).
[FN70]. LOCKE, supra note 20, at 289 ("The State of Nature has a Law of Nature to govern it ....").
[FN71]. See ZUCKERT, supra note 27, where this point of view is presented most completely.
[FN72]. LOCKE, supra note 20, at 287.
[FN73]. Id. at 370.
[FN74]. See SIMMONS, supra note 18, at 53, 77, 171 (discussing the "wide 'domain of autonomy"' in
Locke) (footnote omitted).
[FN75]. CHRISTIAN WOLFF, Institutiones Juris Naturae et Gentium [The Institutions of the Law of Nature
and of the Nations], in 26 GESAMMELTE WERKE Abt. 2, 24 (Marcellus Thomann ed., 1969) (accessed by
the author).
[FN76]. For the relevant canonistic texts, see TIERNEY, supra note 5, at 67, 142-43.
[FN77]. JOHANNES ANDREAE, IN TITULUM DE REGULIS IURIS NOVELLA COMMENTARIA [A
NEW COMMENTARY ON THE TITLE ON THE RULES OF LAW] 64-65 (1581).
[FN78]. JOANNIS DUNS SCOTUS, Quaestiones in Quartum Librum Sententiarum [Inquiries Regarding the
Fourth Book of the Sentences], in 19 OPERA OMNIA 161 (26.1) (Luke Wadding ed., 1894).
[FN79]. 1 FRANCISCO DE VITORIA, DE JUSTITIA [ON JUSTICE] 64 (R. P. Vicente Beltrán de Heredia
ed., 1934).
[FN80]. Id.
[FN81]. SUAREZ, supra note 36, at 57 (1.14.5), 62 (1.16.12).
[FN82]. Id. at 60 (1.15.6).
[FN83]. Id. at 62 (1.15.11).
[FN84]. Id. at 140-41 (2.14.16-17).
[FN85]. Id. at 163-64 (2.18.3).
[FN86]. AQUINAS, supra note 46, at 199 (2.25.1.2).
[FN87]. FRANCISCO SUAREZ, De Necessitate et Contingentia Efficientium [On the Necessity and Contingency
of Effects], in 25 OPERA OMNIA 713 (Carolo Berton ed., 1861).
[FN88]. See KRAYNAK, supra note 3, at 123.
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[FN89]. LOCKE, supra note 20, at 370.
[FN90]. MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY 81 (2001).
[FN91]. Id. at 66.
[FN92]. Id. at 80-81.
[FN93]. Id. at 83.
[FN94]. See JOHN RAWLS, A THEORY OF JUSTICE (1971).
[FN95]. For an example of each of these approaches, see DAVID BOAZ, LIBERTARIANISM: A PRIMER
95 (1997) (referring to Aquinas); ATTRACTA INGRAM, A POLITICAL THEORY OF RIGHTS (1994);
PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL: WHAT (IF ANYTHING) CAN JUSTIFY CAPITALISM?
(1995); Douglas B. Rasmussen, Why Individual Rights?, in INDIVIDUAL RIGHTS RECONSIDERED
113, 127 (Tibor R. Machan ed., 2001) (referring to Aquinas).
[FN96]. See Susan J. Brison, The Autonomy Defense of Free Speech, 108 ETHICS 312 (1998).
[FN97]. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 171 (1974).
[FN98]. Id.
[FN99]. On the modern "welter" of rights, see LOREN E. LOMASKY, PERSONS, RIGHTS, AND THE
MORAL COMMUNITY 4 (1987).
[FN100]. See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE
(1991).
[FN101]. KRAYNAK, supra note 3, at 167.
[FN102]. FORTIN, supra note 66, at 23.
[FN103]. See Mary Ann Glendon, The Rule of Law in the Universal Declaration of Human Rights, 2 NW.
U. J. INT'L HUM. RTS. 5 (2004), at http:// www.law.northwestern.edu/journals/jihr/v2/5.
[FN104]. See id.  20 (describing the Declaration as "an integrated document where rights are meant to be
seen in relation to each other and to certain over-arching principles, including the rule of law").
[FN105]. Universal Declaration of Human Rights, supra note 1, at 71, 74, 76.
END OF DOCUMENT
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