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Natural Law and Natural Rights: Old Problems and Recent Approaches

Published online by Cambridge University Press:  05 August 2009

Brian Tierney
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Abstract

Widely divergent views exist among modern scholars concerning the relationship between natural law and natural rights. Some hold that the two concepts are logically incompatible with one another. Others maintain that natural rights were derived from natural law in the work of Aquinas or, alternatively, that natural law was derived from natural right in the work of Hobbes. All these views seem open to criticism. An alternative approach is suggested by a consideration of the idea of permissive natural law.

Type
Research Article
Information
The Review of Politics , Volume 64 , Issue 3 , Summer 2002 , pp. 389 - 406
Copyright
Copyright © University of Notre Dame 2002

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References

1. Peters, Edward. “Truth and Fiction in the Negotiation of Human Rights,” Human Rights Review 1 (1999): 113–19 at 114.CrossRefGoogle Scholar

2. Two recent works that discuss the whole period from the twelfth century to the seventeenth are Brett, Annabel, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997)Google Scholar; Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997)Google Scholar.

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11. Ibid., p. 133.

12. There are similar usages in Aquinas too when he was using the word ius unreflectively. See Finnis, , Aquinas, p. 133 n.10Google Scholar. Villey thought it important to distinguish between the use of the terms ius and lex in Aquinas's work. Finnis correctly points out that Aquinas occasionally used the terms interchangeably. The immediate point is that for Villey neither Aquinas's ius naturale nor lex naturalis implied anything like a modern doctrine of rights. In an earlier work Finnis criticized Villey's interpretation of Aquinas. In his more recent book he seems sometimes to be responding to Villey's arguments but he does not mention the French scholar by name, nor does he include any of Villey's numerous works in his bibliography.

13. Finnis, , Aquinas, p. 135Google Scholar. See Summa Theologiae, 2. 2ae. 57. 1.Google Scholar When Finnis considered Aquinas's treatment of unjust laws (p.136), he wrote in similar fashion, “[I]f a statute declares permissible something which, contrary to natural law {ius naturale}, violates someone's natural right(s), the statue is overridden by the right(s),” citing 2.2ae. 57.2. But the text of Aquinas has no reference to subjective rights. Paul Cornish has also argued that Aquinas used “a language of subjective rights.” But he only shows that Aquinas considered situations that might well have been discussed in terms of natural rights. Aquinas himself, however did not choose to argue in that way. Aquinas never used the terms ius naturale or iura natralia in a subjective sense. See Cornish, P.. “Marriage, Slavery and Natural Rights in the Political Thought of Aquinas,” Review of Politics 60 (1998): 545–61CrossRefGoogle Scholar.

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21. Zuckert, , “Do Natural Rights Derive From Natural Law?” p. 731Google Scholar. Zuckert was referring here to Locke as well as Aquinas.

22. Strauss, Leo, The Political Philosophy of Hobbes, trans. Sinclair, Elsa M. (Chicago: University of Chicago Press, 1952) (reprint of the 1936 edition), p. 157.Google Scholar For a few later examples see Berns, WalterLiberal Democracy, p. 9Google Scholar, “In the teachings of Hobbes and Locke, the laws of nature are merely deductions from the rights of nature”; Berns, Lawrence, “Hobbes,” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph, 3rd ed. (Chicago: University of Chicago Press, 1987), p. 401Google Scholar, “All the laws of nature…are derived from and subordinate to the right of nature”; Zuckert, Michael, “Do Natural Rights Derive From Natural Law,” p. 702Google Scholar, “Hobbes…claimed that natural right comes first and natural law derives therefrom”; Shapiro, Ian, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), p. 42Google Scholar, “To Hobbes…natural laws are derived from his account of man's natural capacities…man's natural rights.” Tuck, Richard agreed in part with Strauss in his Hobbes (Oxford: Oxford University Press, 1989), p. 102Google Scholar. “Strauss in my view correctly recognized that Hobbes subordinated natural law to natural rights.” But Tuck's own discussions of the issue are more nuanced.

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26. Ibid., chap. 14, p. 92. Hobbes liked sometimes to express his novel ideas in traditional language. He went on (p. 110) to give a new idiosyncratic meaning to the old canonistic terms forum internum and forum externum. Gratian's work was still widely studied and quoted in the seventeenth century. Filmer referred to the first chapters of the Decretum in his criticism of Grotius. Patriarcha and Other Writings, ed. Sommerville, Johann P. (Cambridge: Cambridge University Press, 1991), pp. 208–209Google Scholar.

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32. Villey is one exception. He did mention the significance of permissive law, especially in his later works. See Le droit et les droits de l'homme (Paris: Presses universitaires de France, 1983), p. 123Google Scholar. But Villey did not investigate the origin and development of the idea.

33. The account of permissive law in the text above is based in part on my articles, “Kant on Property: The Problem of Permissive Law” and “Permissive Natural Law and Property: Gratian to Kant,” Journal of the History of Ideas 62 (2001): 301–312 and 381–99CrossRefGoogle Scholar.

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41. Ibid., p. 74.47

42. Ibid., pp. 76–77

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44. Ibid., 1.15.1–16, pp. 59–63.

45. Ibid., 2.18. 5, p. 164

46. Ibid., 2.18. 8, p. 165. Suarez was referring here to natural rights in a just war. For more on Suarez's arguments see Tierney, , Idea of Natural Rights, pp. 302–308Google Scholar and “Gratian to Kant” (above, n.33), pp. 390–93.Google Scholar

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49. Ibid., p. 16. The whole work of Grotius might be regarded as a treatise on permissive law. Book 2 discussed when it was permissible to go to war and book 3 the kinds of behavior that were permissible in the conduct of war.

50. Leviathan, chap. 14, p. 91.Google Scholar

51. Two Treatises on Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1964), Second Treatise, § 128, p. 370Google Scholar. See also § 4, p. 287, “within the bounds of the Law of Nature”;Google Scholar§ 59, p. 325, “within the Permission of that Law.”Google Scholar

52. Ibid., § 4, p. 287.

53. Ibid., § 6, p. 288

54. Ibid., § 7, p. 289

55. Institutiones iuris naturae et gentium, ed. Thomann, M. in Christian Wolff: Gesammelte Werke, abt.2.26 (Hildesheim: Georg Olms Buchhandlung, 1969) (reprint of the 1750 edition), § 47, p. 24.Google Scholar

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61. In various contexts (e.g., those relating to the limits of human law) Aquinas could have presented a doctrine of natural rights not derived from his teaching on natural law, but complementing it. But he did not choose to do so. In referring to Hobbes's doctrine of natural right as not meaningful I had in mind his comment in the De cive that “the effects of this Right are the same, almost, as if there had been no Right at all” (p. 49).

62. Tierney, B., “ Hierarchy, Consent, and the ‘Western Tradition’,” Political Theory 15 (1987): 646–52CrossRefGoogle Scholar.