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Aquinas on ius and Hart on Rights: A Response to Tierney

Published online by Cambridge University Press:  05 August 2009

John M. Finnis
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Extract

Of course Aquinas uses the term ius in an “objective” sense, to mean “the just,” “the just thing,” or the “just state of affairs” called for by the virtue of justice. But he also uses ius in a “subjective” sense, to refer to a right or rights that someone, the “subject,” has. Brian Tierney fails to see this, for three reasons, I think: though he has been an effective critic of Villey's historical analyses, he now seems gripped by Villey's non sequitur (if objective then not subjective); he looks to Aquinas's “phrases,” “usages,” and “terms,” sometimes neglecting the arguments in which Aquinas uses them; and, at least in this new essay, he employs a simplistic understanding of the modern idea of rights.

Type
Research Article
Information
The Review of Politics , Volume 64 , Issue 3 , Summer 2002 , pp. 407 - 410
Copyright
Copyright © University of Notre Dame 2002

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References

1. “Aquinas's primary definition of ius: that act, forbearance, or other thing which is just. For what is just is what the virtue of justice requires the relevant person(s) to give to, or do for, or abstain from in relation to, someone else”: Finnis, , Aquinas: Moral, Political, and Legal Theory (Oxford University Press, 1998), p. 135Google Scholar. Footnote 6 to that passage cites and quotes the decisive texts from II–II q. 57 a. 1. See also Finnis, , Natural Law and Natural Rights (Oxford University Press, 1980), p. 206Google Scholar: “The primary meaning, [Aquinas] says, is ‘the just thing itself’ (and by ‘thing’, as the context makes clear, he means acts, objects, and states of affairs, considered as subject-matters of relationships of justice). One could say for Aquinas ‘jus’ primarily means ‘the fair’ or ‘the what's fair’; indeed, if one could use the adverb ‘aright’ as a noun, one could say that his primary account is of ‘arights’ (rather than of rights)” (citing II–II q. 57 a. lc, ad 1 and ad 2, as Tierney does).

2. See e.g., the passages analysed and cited in Aquinas, pp. 133–34Google Scholar. There are many passages in Aquinas where even the surface syntax says “X has a right to [choose whether or not to] do such and such”:e.g., “she has the right to request the marital intercourse to which spouses are entitled {habet ius petendi [debitum]}” (a phrase very frequent in Aquinas, who also uses similar forms such as “a wife has a [sexual] right over her husband's body {ius habet in corpore viri},” etc.); “someone has a right to contract marriage [with someone of his or her choice] {ius habet contrahendi cum…}”; “free people have a right of opposing their government in some respects {liberi…habent ius in aliquo contradicendi…}”; cf. also “every Christian has a right to receive the eucharist unless he loses it by…{quilibet christianus habet ius in perceptione eucharistiae nisi…amittat}”; and so forth. Some of the rights we may “have,” according to Aquinas, are not to do but rather to be the object of someone else's doing, e.g. the right to be paid tithes {habent ius accipiendi decimas}; and there are other kinds of ius which Aquinas says people have {habent}.

3. The synonymity here of ius suum with plain suum is important exegetical evidence: Finnis, , Aquinas, p. 133Google Scholar; Tierney's omission of it from his rendering of my position is characteristic of his methods, which focus on words and phrases rather than arguments – in this case my exegetical argument.

4. Villey is not the only one to point out that in Roman thought—and I add, vestigially in Aquinas—this something owed is not necessarily beneficial (though usually it is), whereas in the modern concept of a right, a right is always (in principle) beneficial to its “subject” (holder). I made the same observation in Aquinas, pp. 133–34Google Scholar; and in Natural Law and Natural Rights, p. 209Google Scholar.

5. Natural Law and Natural Rights, pp. 205, 227Google Scholar sets this out more fully, with citations to Hart, and to the criticisms—e.g. the analysis of children's rights—that forced him to abandon his “classic [i.e., 1953–1955] definition” as early as 1970.

6. Pace Tierney, I never, even “in effect,” argue that “if we have a natural law duty to act in a certain way, we must also have a right to so act.” No doubt we do have this liberty-right, but it is not a paradigmatic, perspicuous, or illuminating instance of the kind of right which interests me, rights which like Aquinas's ius are each the object of justice by reason of a relationship to another person to whom justice is owed.

7. Natural Law and Natural Rights treats the differences between Thomistic and modern idiom in right(s)-discourse as more significant and interesting than I now think they are.

8. On this in Thomistic discourse, see note 2 above, where all the rights quoted from Aquinas involve an exercise of self-directing, autonomous choice (on autonomy in general in Aquinas, see my Aquinas, pp. 20, 37, 72–73, 240–41, 258)Google Scholar. On modern rights discourse, see Natural Law & Natural Rights, pp. 199–200, 204–205, 209–10Google Scholar.