From Natural Law to Human Rights: Or, Why Rights Talk Matters

Author(s): Jean Porter

Source: Journal of Law and Religion , 1999 - 2000, Vol. 14, No. 1 (1999 - 2000), pp. 77-96
Published by: Cambridge University Press

Stable URL: https://www.jstor.org/stable/1051779

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 FROM NATURAL LAW TO HUMAN RIGHTS: OR,
WHY RIGHTS TALK MATTERS

Jean Porter t

Near the beginning of The Idea of Human Rights, Michael

Perry states that "One of my principal goals ... is to clarify and
address the unusually murky subject of 'moral relativism'-and to do
so from the perspective of what can properly be called 'natural
law."'1 This he defines, following D.J. O'Connor, as a view
according to which "basic principles of morals and legislation are, in
some sense or other, objective, accessible to reason and based on
human nature."2 Subsequently, he explains that the relation between
belief in natural law and in human rights is one of presupposition;
that is to say, a doctrine of natural rights presupposes the moral
realism which in his view is the central core of natural law theories.3
As his discussion makes clear, Perry's claim that human rights
presuppose a natural law should be understood as a theoretical claim.
At the same time, it raises interesting historical issues. That is, when
we examine classical accounts of the natural law, are these explicitly
linked with doctrines of natural or human rights, or something
recognizably similar? (Throughout this paper, I treat the terms
"human" and "natural" rights as synonyms.) And more generally,
what can we learn from the ways in which our forbears drew
connections, or failed to do so, between a natural law and human
rights?
It is difficult to deny that the natural law tradition had some
influence on the subsequent emergence of doctrines of natural or
universal human rights, if only because the most important figures in
this development, including Hugo Grotius, Thomas Hobbes, and
John Locke, frame their arguments in terms which are recognizably
drawn from medieval discussions of the natural law. However, it is

t The University of Notre Dame.

1. Michael J. Perry, The Idea of Human Rights. Four Inquiries 6 (Oxford U
Press, 1998).
2. Id.
3. Id at 57-86; the relation between theories of the natural law and human
rights is described as one of presupposition at 68.

77

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78 JOURNAL OF LAW & RELIGION [Vol XIV

not so clear that earlier accounts of the natural law are also linked
with doctrines of natural rights. In fact, the general question of the
relation between earlier concepts of the natural law and modem
doctrines of human rights has been debated throughout this century.
On the one hand we find a number of scholars, from Michel Villey to
Richard Tuck and Annabel Brett, arguing that the first accounts of
natural rights properly so called did not appear until the fourteenth
century at the earliest. On the other hand, several scholars, including
both Jacques Maritain and John Finnis, claim to find a doctrine of
natural rights (or at least, the inchoate beginnings of such a doctrine)
in Aquinas, and more recently the medievalist Brian Tiemey has
argued that we find a concept of natural rights in some early
thirteenth century scholastics.
What is at stake in this debate for a contemporary defender of a
doctrine of human rights? Obviously, for someone such as Maritain
or Finnis, who claims that some strand of the medieval natural law
tradition is equivalent to a doctrine of natural rights, a great deal is at
stake. But Perry does not make such a strong claim; he simply says
that belief in human rights presupposes belief in a natural law,
understood in very general terms as a commitment to a minimal form
of moral realism. And of course, there are a number of philosophers
and political thinkers who would defend a version of a human rights
theory without relying on appeals to a natural law at all.
Nonetheless, there is something at stake in this debate even for
those defenders of rights theories who do not rely on an account of
the natural law in developing their views. Consider this question: Do
pre-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 important for just the same reason that it is
difficult to answer; that is, what is at issue is not so much the record
of what earlier medieval authors thought, as the proper interpretation
of that record.
The issue at stake, in other words, is conceptual. How are we
to interpret the moral and political doctrines which comprise the
earlier medieval concept of the natural law? More specifically,
should we count the former as amounting to a doctrine of human
rights, which preserves the same essential features as later versions?
In order to answer this, it will of course be necessary to determine

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77] FROM NATURAL LAW TO HUMAN RIGHTS 79

what those essential features are. In this way, our assessment of

medieval writings forces us to reassess our initial understanding of
human rights, and to identify what we consider to be the essential
features or core insights of that doctrine.
In this paper, I will examine some of the more recent
interventions in the debate over the historical origins of the doctrine
of human rights in order to see what they can offer for our
understanding of human rights today. My aim in doing so is not to
offer a comprehensive survey of this debate, nor even to attempt to
resolve it, although my own views on the historical question will
become apparent. Rather, I want to use this debate as a framework
for focusing and reflecting on our contemporary understanding of
human rights. More specifically, I think this historians' debate is
important for philosophers, theologians and political theorists
because it helps to focus our thinking about what is at stake in
deciding among different interpretations of human rights.

FROM NATURAL LAW TO HUMAN RIGHTS

There seems to be little doubt that we find a concept of human

rights, recognizably similar to modem accounts, by the later middle
ages. The question is whether this concept emerged before the end of
the medieval period, and according to a number of scholars, it did
not. Michel Villey claims that this concept is first articulated by
William of Ockham, writing in the early decades of the fourteenth
century.4 Similarly, Alasdair MacIntyre, who seems to have been
influenced by Villey on this point, admits that rights language began
to develop at the end of the medieval period.5 Although they are not
so prepared to see the doctrine of natural rights as a radical
innovation, both Richard Tuck and Annabel Brett likewise date the
emergence of natural rights doctrines from the fourteenth century.6

4. For my information on Michel Villey, and the earlier debate more

generally, I am dependent on Brian Tiemey, The Idea of Natural Rights: Studies on
Natural Rights, Natural Law and Church Law 1150-1625 13-42 (Scholars Press,
1997).
5. For Maclntyre's comments on this issue, see After Virtue 68-70 (U of Notre
Dame Press, 2d ed, 1984).
6. See Richard Tuck, Natural Rights Theories: Their Origin and Development
7-31 (Cambridge U Press, 1979); Annabel S. Brett, Liberty, Right and Nature.
Individual Rights in Later Scholastic Thought 49-87 (Cambridge U Press, 1997).

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80 JOURNAL OF LAW & RELIGION [Vol XIV

For those who would argue for a close connection between a

doctrine of natural or human rights and the natural law tradition, this
line of interpretation presents a problem. Because of course the
natural law tradition dates from a much earlier period, at least from
the century before the common era, if not even earlier.7 It is true that
the natural law does not appear to have become a focus for
systematic reflection until the latter part of the twelfth century, when
the prominence of natural law language in key legal texts led to the
growth of first jurisprudential, and then theological reflection on the
natural law. Even so, on the view sketched above, it takes at least
150 years to move from systematic thought on the natural law, to an
articulation of a concept of natural rights. This would suggest that
there is a break, or at least significant discontinuity, between the
medieval concept of the natural law, and later concepts of natural or
human rights.
In contrast, there have been a number of historians,
philosophers and theologians who have argued that we find a conc
of human rights in some earlier medieval authors. We have alread
noted that these would include Jacques Maritain, John Finnis, and
more recently the medievalist Brian Tiemey, even though as we w
see, Tiemey takes a different line than do Maritain and Finnis.8
What are we to make of this debate? It should be noted, first
all, that it cannot be settled on purely linguistic grounds. Maclnty
has famously asserted that "there is no expression in any ancient
medieval language correctly translated by our expression 'a righ
until near the close of the middle ages," which he goes on to date
about 1400.9 However, as Tiemey points out, this claim is

7. I am persuaded by Richard Horsley's argument that the tradition of natural

law thought takes shape sometime in the century before the beginning of the
Common Era, and draws on both Stoic and neo-Platonic elements; see Richard A.
Horsley, The Law of Nature in Philo and Cicero, 71 Harv Theo Rev 35-59 (1978).
8. For Jacques Maritain's position, see, for example, Man and the State 76-
107 (U of Chi Press, 1951); John Finnis' basic theory of natural rights is set forth in
Natural Law and Natural Rights 209 (Clarendon Press, 1980). Both Maritain and
Finnis are more interested in developing an account of natural rights, than a reading
of Aquinas, but both take their theory to be a development of his views; see Man
and the State at 84-85, and Natural Law and Natural Rights at 42-48. Tiemey's
arguments will be discussed in more detail below.
9. Maclntyre, After Virtue at 69 (cited in note 5).

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77] FROM NATURAL LAW TO HUMAN RIGHTS 81

incorrect.10? Medieval society in the twelfth and thirteenth centuries

was preoccupied with establishing the rights of various groups and
individuals over against one another, and the men and women of this
society had a perfectly adequate language in which to do so. Central
to this rights discourse was the expression jus and its declensions,
which should sometimes clearly be translated as "law," but which in
other contexts should just as clearly be translated as "right," in the
sense of an individual or group right. As an example of the latter
usage, Tiemey offers Gratian's assertion of a papal claim to "the
rights of heavenly and earthly empire" (terreni simul et celestis
imperii iura, Decretum D. 22 C.1; Tiemey's translation)."1 In this
context and in most other examples of a similar usage, the rights
asserted are not natural rights, as Tierney recognizes, since they are
understood to presuppose specific social arrangements and should
therefore be considered to be conventional or legal rights.
Nonetheless, the fact remains that the scholastics in the period we ar
considering did have the linguistic and conceptual resources to
develop a doctrine of natural rights.
More positively, if we examine the moral and political writings
of the jurists and theologians of the twelfth and thirteenth centuries, it
is clear that at the very least, they have much in common with most
modem and contemporary defenders of theories of natural rights.
Most fundamentally, they believe that there is an objective moral
order which places normative constraints on social practices. In
addition, they share many substantive views with later rights
theorists, including a commitment to non-maleficence as the basis for
morality, and a conviction that rational self-direction is central to
moral agency.
Are these points of agreement sufficient to establish that the
high medieval concept of the natural law implies a doctrine of natural
rights? 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 his
subsequent discussion of the uses of the term jus, see 54-69. This discussion, in
turn, occurs in the context of a more far-reaching investigation of the linguistic and
conceptual origins of the idea of natural rights from 1150 to 1250; see id at 43-77.
11. Tierney, The Idea of Natural Rights at 54 (cited in note 4).
12. Maritian does not say explicitly that rights claims can be translated without
remainder into claims about mutual obligations, but his discussion seems to imply

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82 JOURNAL OF LAW & RELIGION [Vol XIV

would Perry himself: "Indeed, properly understood, rights talk i

derivative and even dispensable feature of modem moral
discourse.... What really matters-what we should take
seriously-is not human rights talk but the claims such talk is m
to express: the claims about what ought not to be done to or ab
what ought to be done for human beings. We can take rights
seriously (so to speak) without taking rights talk too seriously."'13
For all these authors, natural rights should be seen as
expressions of the claims and duties which persons have over against
one another by virtue of their mutual participation in an objective
moral order. Because this order is seen as both supremely
authoritative and universal in scope, it gives rise to claims and duties
which are not dependent on any particular social arrangement, and
which all communities are bound to respect. Furthermore, on th
view the rights of one individual are generally correlated with duties
which are incumbent on someone else. Indeed, someone may be said
to have a right because another person has a duty which affects him
(although it may not be a duty towards him specifically); for
example, my right to life is grounded in the duty which everyone els
has not to kill people, including me. On this view, rights talk offers
particularly emphatic and concise way of expressing our sense of ou
obligations to others, but it does not add anything in the way o
justifying those obligations or modifying their content.
This last point raises a further difficulty, however, because as
Tuck points out, it seems to imply that the language of rights
nugatory:
If any right can be completely expressed as a more or less
complete set of duties on other people towards the possessor of
the right, and those duties can in turn be explained in terms of
some higher-order moral principle, then the point of a separate
language of rights seems to have been lost, and with it the
explanatory or justificatory force possessed by references to

this; see in particular Man and the State at 97-107 (cited in note 8). Finnis does say
this explicitly in Natural Law and Natural Rights at 209-10 (cited in note 8); I first
noticed this reference through its citation by Perry in The Idea of Human Rights a
56 (cited in note 1).
13. Id. For Finnis' expression of the same view, see Natural Law and Natura
Rights at 209-10 (cited in note 8).

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77] FROM NATURAL LAW TO HUMAN RIGHTS 83

rights. This result has been acceptable to many political

philosophers, but others have been worried by it, feeling ...
that the point of attributing rights to people is to attribute to
them some kind of "sovereignty" over the moral world.
According to this view, to have a right to something is more
than to be in a position where one's expressed or understood
want is the occasion for the operation of a duty imposed upon
someone else; it is actually in some way to impose that duty
upon them, and to determine how they ought to act towards the
possessor of the right.14

I believe Tuck's objection to this view is well taken. He is not

aiming to legislate usage; if Perry and others wish to describe the
claims arising out of a shared morality as rights, there is no logical
reason why they should not do so. However, this way of speaking
trivializes the historical question before us, and by the same token it
obscures an important theoretical issue. For if a rights theory
amounts to nothing more nor less than the view that there is an
objective morality, then of course medieval natural law authors had a
theory of rights-and so did any number of other modem and
contemporary authors, including Jeremy Bentham, who famously
described the doctrine of "natural and imprescriptible rights" as
"nonsense on stilts."15
However, when modem theorists refer to natural rights, they
frequently mean something more than the claims arising within a
moral order.16 On such a view, a natural right properly so called
attaches to a person as, so to speak, one of the individual's moral
properties. In the terms of contemporary political theory, it is a
subjective, rather than an objective right. Furthermore, secondly, the
duties correlative to such a right arise in virtue of the right. That is to
say, the right is itself the ground of the duty. Finally, on this view

14. Tuck, Natural Rights Theories at 6 (cited in note 6).

15. The phrase occurs in his essay on the French Declaration of Rights of 1791,
Anarchical Fallacies, reprinted in abridged form in A.I. Melden, ed, Human Rights
28-60, 30 (Wadsworth Pub, 1970). In fact, Bentham offers a model for reducing
rights claims to a more general account of entitlements and obligations; see An
Introduction to the Principles of Morals and Legislation 224-25 (first published in
1789; Hafner, 1948, reprint of final 1823 ed).
16. I am dependent on Tuck's account of modem natural rights theories here,
although the summary is my own; see generally Natural Rights Theories.

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84 JOURNAL OF LAW & RELIGION [Vol XIV

natural rights exist prior to particular social arrangements, even

though their effective exercise may require the existence of specific
institutions, such as law courts.
Does the earlier medieval concept of the natural law contain or
imply a doctrine of natural rights in this stronger sense? At the very
least, we cannot say that there is any necessary connection between
this concept of the natural law, and a doctrine of natural rights.
Certainly, twelfth and thirteenth century jurists and theologians
believe that men and women have claims over against one another
for certain kinds of aid and forbearance. However, they do not
generally ground these in subjective individual rights; rather, these
claims follow from fundamental obligations of non-maleficence
which are thought to be apparent to all. And as Tiemey observes, "to
be the beneficiary of a duty is not necessarily the same thing as
having a right. Medieval canonists understood this point too. A
bishop might have a duty to grant a dispensation when circumstances
warranted it, they pointed out, but the petitioner did not have a right
to insist on the grant."'7
The moral/ political theory of Thomas Aquinas is often cited as
an example of a medieval doctrine of natural rights.18 But as others
have pointed out, this is so only if we assume that natural rights are
equivalent to natural duties; this is one point at which Tierney agrees
with both Brett and Tuck.'9 Aquinas has a concept of the natural
right, orjus, as an objective order of equity established by nature, but
he does not speak in terms of rights inhering in individuals, which
give rise to duties in others (Summa theologiae II-II 57.1, 2). In his
remarks on property, he seems at first glance to assert the existence
of a natural right to ownership:
... exterior things can be considered in two ways. In one way,
with respect to their nature, which is not subject to human

17. Tiemey, The Idea of Natural Rights at 70-71 (cited in note 4).
18. As do both Maritain and Finnis; see note 8.
19. Brett offers a generally insightful discussion of Aquinas' concept of
objective right, and I agree with her conclusion that Aquinas has a notion of
objective, but not of subjective right; see Brett, Liberty, Right and Nature at 88-97
(cited in note 6). This is likewise the view of both Tuck and Tierney; see Natural
Rights Theories at 19-20 (cited in note 6), and The Idea of Natural Rights at 45
(cited in note 4), respectively.

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77] FROM NATURAL LAW TO HUMAN RIGHTS 85

power, but only to the divine power, which all things obey
straightaway. In another way, with respect to the use of the
thing itself. And so the human person has natural ownership
(dominium) of exterior things, because through his reason and
will he is able to make use of them for his benefit, as if they
were made for him, for more imperfect things always exist for
the sake of more perfect things . . .. And by this argument, the
Philosopher proves in the first book of the Politics that the
possession (possessio) of exterior things is natural to the human
person. Furthermore, this natural ownership (dominium) over
other creatures, which is appropriate to the human person on
account of reason, in which consists the image of God, is
manifested in the very creation of the human person, where it is
said, "Let us make the human person to our image and likeness,
and let him have authority over the fishes of the sea," etc. [Gen
1.26] (Summa theologiae II-II 66.1; all subsequent references to
Aquinas are taken from the Summa theologiae, and all
translations from Aquinas are my own.)
Yet Aquinas considers the natural dominium over created things
to be proper to the human person as a species; further on in this
question, he explicitly says that private ownership by individuals is
introduced by human ingenuity in view of the needs of life (II-II 66.2
ad 2). Elsewhere, he explicitly endorses Gratian's claim that
community of possessions and universal liberty pertain to the natural
law, whereas property and servitude are introduced by human reason
on the grounds of expediency (Summa theologiae I-II 94.5 ad 3). As
Tuck notes, this aligns him with the more general scholastic view that
persons can only lay claim to private ownership or to the services of
others on the basis of specific social arrangements, which give rise to
obligations and claims not specifically grounded in the natural law.20
In other words, Aquinas has a concept of the right, and he apparently
also has a concept of claims emerging out of a particular set of social
arrangements, more or less equivalent to our concept of civic rights,
but he does not appear to have a concept of natural rights in the
strong sense.
Yet at some points, Aquinas does come close to articulating a
doctrine of subjective natural rights, even though he does not quite do
so. The most striking such example occurs in his discussion of the

20. Tuck, Natural Rights Theories at 19-20 (cited in note 6).

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86 JOURNAL OF LAW & RELIGION [Vol XIV

obligations of obedience, which for him include the obligations o

servants to masters as well as the obligations of those under relig
vows to their superiors, and in general, every sort of obligation
subordinate to a superior (II-II 104.5).
As we would expect, Aquinas is quite prepared to defend the
general institutions of subordination and superiority that structur
society. What may be surprising is that he places strict limits on
extent of this obedience. For him, there is no such thing as an
obligation of unlimited obedience between one person and another.
The requirements of obedience are limited by the point of the
relationship, for one thing (II-II 104.5 ad 2). More importantly, there
are limits on the sorts of obedience that can be exacted of anybody,
under any circumstances. These limits are set by the fundamental
inclinations of human life, which all persons share, and with respect
to which all are equal: "However, one person is held to obey another
with respect to those things which are to be done externally through
the body. Nevertheless, in things which pertain to the nature of the
body, one person is not held to obey another, but only God, since all
persons are equal in nature" (II-II 104.5; compare I 96.4). Thus, he
goes on to explain, no one can command another either to marry or
not to marry, for example, because marriage stems from an aspect of
human existence which is common to all persons.
In this passage, Aquinas does not explicitly say that individuals
have a right to freedom, which can be asserted over against others
and defended as such in a court of law. However, he offers what
many would consider to be the next best thing; that is, he defends
human freedom in terms of an immunity from the interference of
others with respect to the pursuit of certain basic human goals. If we
agree with Tuck that for a defender of a strong subjective rights
theory, "to attribute rights to someone is to attribute some kind of
liberty to them," then it would appear that Aquinas comes very close
to asserting a limited but definite right to freedom here.21
Similarly, in his discussion of the obligation of the rich to share
their surplus wealth with the poor, Aquinas does not say that a poor
individual has a right to the goods of a rich person (II-II 66.7). But

21. Id at 7 (emphasis in the original); note, however, that Tuck here speaks of
active rights, rather than subjective rights.

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77] FROM NATURAL LAW TO HUMAN RIGHTS 87

he does say that a poor person who takes from another what is
necessary to sustain life is not guilty of robbery or theft. This, in
turn, implies that someone is free to take from another in such
circumstances, in the sense of enjoying immunity from guilt or
punishment. This is not equivalent to saying that the poor person has
a right which could be claimed against the rich person and defended
at law, but it does imply that the rich individual cannot lodge a claim
against the poor individual for the return of what the latter has taken.
In other words, the poor individual cannot defend a claim against the
rich, but neither can the rich individual defend an accusation of
robbery or theft against the poor person in such a case. This is at
least a subjective immunity, if not a full-fledged subjective right.
My point here is not that Aquinas has a concept of subjective
human rights; I agree with Tuck, Brett, and Tiemey that he does not.
Nonetheless, it is significant that even though he does not articulate a
strong concept of subjective natural rights, he comes very close to
such a concept at some points. This fact suggests that there is at least
some affinity between natural rights theorists and medieval natural
law thinkers, even though the latter may not explicitly assert the
existence of subjective rights.
In his recent study of the emergence of a doctrine of subjective
rights, Tiemey argues that at least some thirteenth century authors
went still further in the direction of developing a theory of human
rights.22 As is well known, the scholastics in the twelfth and
thirteenth centuries defended the view that the rich have an obligation
to share their goods with the poor in time of need. We have just
noted that Aquinas interprets this to mean that a poor individual who
takes from another what is necessary to sustain life does not sin, but
he does not actually say that the poor individual has a right to the
superfluous goods of the wealthy. However, other thirteenth century
scholastics do say this explicitly. For example, the canonist
Laurentius, who says that when the poor person takes from another
under press of necessity, it is "as if he used his own right and his own
thing."23 Moreover, as Tierney goes on to show, this came to be
recognized as a right which could be adjudicated at law:

22. Tiemey, The Idea of Natural Rights at 69-76 (cited in note 4).
23. Id at 73; I am quoting from Tiemey and the translation is his. He offers
here several other examples of similar expressions from the same period.

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88 JOURNAL OF LAW & RELIGION [Vol XIV

Alongside the formal judicial procedures inherited from Roman

law the canonists had developed an alternative, more simple,
equitable process known as "evangelical denunciation." By
virtue of the authority inhering in his office as judge, a bishop
could hear any complaint involving an alleged sin and could
provide a remedy without the plaintiff bringing a formal action.
From about 1200 onward several canonists argued that this
procedure was available to the poor person in extreme need. He
could assert a rightful claim by an "appeal to the office of the
judge." The bishop could then compel an intransigent rich man
to give alms from his superfluities, by excommunication if
necessary. The argument gained general currency when it was
assimilated into the Ordinary Gloss to the Decretum.24
Those scholastics who speak of a right on the part of the poor to
the superfluities of the rich do so on the basis of more general natural
law considerations, and they do not go on to develop a
comprehensive theory of natural subjective rights. Nonetheless,
would be captious to deny that the authors, whom Tiemey cites
assert the existence of a subjective right, explicitly referred to
jus, which is grounded in the natural law rather than in specific
conventions. It is not clear that the obligation of the rich perso
such a case would be seen as arising from the right of the poor p
(as opposed to the more general obligation of the rich to share
those in need), but at the very least, general obligations are see
giving rise to claims which function as subjective rights. Most
importantly, these rights are seen as having juridical effect, that is to
say, they give rise to claims which can be vindicated through a public
process of adjudication. Of course, this does not mean that these
rights could be successfully vindicated apart from some actual legal
structure, but that does not mean that they presuppose the existence
of such a structure; rather, it is one of the benchmarks of a just
society that it provide some forum in which such rights can be
claimed and enforced. That is why the scholastics attempted to
devise mechanisms through which the right to surplus wealth could
be publicly defended and enforced.
Hence, even though the earlier medieval concept of the natural
law does not necessarily imply a doctrine of subjective natural rights,

24. Id at 74.

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77] FROM NATURAL LAW TO HUMAN RIGHTS 89

some scholastics in the latter part of this period do speak in terms of

individual rights grounded in the natural law. Given this, later
natural rights theories appear as a natural (so to speak) development
of the earlier medieval concept of the natural law, even though they
do not represent the only possible way in which that concept could be
developed.
This conclusion would be important in itself, because it implies
that there is no sharp break between the high middle ages and early
modernity on this issue. If Tierney is correct (as I believe him to be),
not only do later doctrines of natural or human rights draw on
linguistic and conceptual resources developed in the thirteenth
century, the age of high scholasticism, but an incipient doctrine of
natural subjective rights can already be found in this period. At the
very least, this conclusion suggests that we need to rethink our
historiography.
WHY RIGHTS TALK MATTERS

Even more importantly, it indicates what is at stake affirming a

doctrine of subjective human rights which goes beyond an assertion
of mutual duties. Let me expand on this point.
Seen in the context of their pre-history in the early medieval
period, later medieval and modem rights theories represent a further
development of central concerns of the earlier medieval period, a
development which places particular emphasis on the authority of the
individual as a participant in the divine attributes of reason or will.25
All the canonists and theologians of the earlier medieval period
would have agreed that the natural law gives rise to claims and duties
stemming from the dignity of the human person, considered as a
bearer of the divine image and a potential participant in salvation.
Furthermore, they would have agreed that these claims and duties
have social implications, at least insofar as any truly just society is
bound to respect them. The incipient account of subjective rights we
have just considered goes beyond this consensus, to assert the
existence of individual claims which have juridical effect, and to
assert further that a just society will necessarily give legal expression
to these claims.

25. As Tierey shows in some detail; see id at 43-69.

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90 JOURNAL OF LAW & RELIGION [Vol XIV

As such, this account places great emphasis on the value of

individual liberty, which is seen as not only an ideal to be respected,
but a source for individual claims which have juridical force within
the community. While the value of liberty is shared by all the earlier
medieval natural law thinkers, the concept of subjective rights places
distinctive emphasis on this value by pointing to a specific way in
which it might be given social effect. At the same time, this account
places at least some of the responsibility for enforcing claims of non-
maleficence on (potential or actual) victims themselves.
Are these happy developments, or not? Certainly, they are not
free of all ambiguity. The emphasis on freedom which we find in
accounts of subjective human rights has not always been connected
with political liberalism; on the contrary, as Tuck observes, "most
strong rights theories have in fact been explicitly authoritarian rather
than liberal."26 If my claims to freedom and right are grounded in
subjective rights, which I can cede, then it is at least arguable that my
subjection to an authoritarian regime or my status as a slave is
justified because at some time in the past, I or my ancestors ceded
these rights. This at least was a common argument in defense of both
authoritarian governments and slavery, as Tuck goes on to show in
some detail.27
Yet a theory of subjective natural or human rights need not be
developed in such a way as to incur these implications. The theories
which Tuck discusses were distinctive in their reliance on the concept
of subjective natural rights as the primary or sole basis for moral and
political claims. That is why they opened up the possibility that an
individual might cede immunities from even the most fundamental
forms of coercion and harm. If my immunity against being enslaved
is grounded solely or primarily in my subjective right to liberty, then
it is at least thinkable that I might cede my liberty to you by
becoming your slave. But if that those immunities are based in more
overarching moral considerations, then I cannot cede them, and you
cannot enslave me even with my permission.

26. Tuck, Natural Rights Theories at 3 (cited in note 6).

27. Id at 50-57, 119-42.

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77] FROM NATURAL LAW TO HUMAN RIGHTS 91

However, it is possible to develop a concept of subjective right

in another way, which places them in a wider natural law context. A
Tiemey observes,
by around 1200 many canonists were coming to realize that the
old language of jus naturale could be used to define both a
faculty or force of the human person and a "neutral sphere of
personal choice," "a zone of human autonomy." But they did
not, like some modem critics of rights theories, expect such
language to justify a moral universe in which each individual
would ruthlessly pursue his own advantage. Like most of the
classical rights theorists down to Locke and Wolff they
envisaged a sphere of natural rights bounded by a natural moral
law. The first natural fights theories were not based on an
apotheosis of simple greed or self-serving egotism; rather, they
derived from a view of individual human persons as free,
endowed with reason, capable of moral discernment, and from a
consideration of the ties of justice and charity that bound
individuals to one another.28

On this view, natural rights would not stand as the sole source
for moral obligations, since they would derive their force from a
wider moral framework, which would at the same time set
parameters on their exercise. In this sense, an account of natural
rights which takes the high scholastic account as its starting point
would differ from those modem accounts which take rights to be
foundational for obligations of non-maleficence. Yet on this view,
claims of natural or human rights would not simply be equivalent to
obligations of non-maleficence, because they would add the
possibility of the individual lodging a claim, having juridical force,
for respect for these obligations.
Interpreted in this way, a doctrine of subjective natural rights
would not be so liable to the ambiguities which Tuck describes. At
the same time, it would add an important dimension to Perry's
account of rights as grounded in the sacredness of human life. The
latter concept has its own problematic implications, and a stronger
doctrine of subjective rights would serve to correct these.
Let me illustrate what I mean. In the last chapter of The Idea of
Human Rights, Perry raises the question whether human rights are

28. Tierey, The Idea of Natural Rights at 77 (cited in note 4).

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92 JOURNAL OF LAW & RELIGION [Vol XIV

absolute. In the course of this chapter, he raises the example of a

case recently considered by the Supreme Court of Israel, "involvin
the use of physical force in the interrogation of a Palestinian detai
believed to have 'extremely vital information whose immediate
extraction would help save lives and prevent severe terror attacks in
Israel."'29 He goes on to quote the attorney for the government to the
effect that "No enlightened nation would agree that hundreds of
people should lose their lives because of a rule saying torture is
forbidden under all circumstances."30
So far as I can tell, Perry never does state his own view on this
issue. He does describe the claim that torture is absolutely forbidden
as "counterintuitive," but he acknowledges that it might nonetheless
be true.31 However, he turns immediately from a consideration of
torture to the right to life, on the ground that "many believe [the right
to life] to be the most fundamental of all human rights-or certainly
one of them."32 After an extended consideration of John Finnis'
defense of an absolute right to life, he concludes that the right to life
is not absolute. This at least suggests that he would not consider the
right not to be tortured as an absolute. At the same time, he
apparently would consider it to be nonderogable; that is to say, its
violation can never be juridically sanctioned, even though it may be
justified in certain extreme and exceptional cases.33
I found Perry's discussion of this case to be troubling. My
reaction did not stem from a disagreement with his conclusion. I am
very reluctant to say that torture could ever be justified, and yet one
can imagine situations in which an absolute prohibition would be
difficult indeed to sustain, situations of genuine emergency in which
the consequences of such a prohibition would be not only tragic, but
catastrophic (say, triggering a nuclear war).
What disturbs me about Perry's treatment of the specific case
he cites is that he moves so quickly from this case to a consideration
of extreme and hypothetical cases. In doing so, he glosses over the

29. Id at 94.
30. Id.
31. Idat95.
32. Id.
33. Id at 95-106; unless I have overlooked it, Perry never does return
specific issue of torture.

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77] FROM NATURAL LA W TO HUMAN RIGHTS 93

moral issues involved in this non-exceptional and all too real case.
For what we have in this instance is not a situation in which
desperate men and women resort to torture in order to meet an
extraordinary emergency; rather, this is a situation in which torture is
employed in order to prevent a loss of life which is certainly tragic,
but which cannot be described as catastrophic. Moreover, given the
sanction of the Israeli supreme court, this case opens up the prospect
of the use of torture in similar situations, as a sanctioned
governmental policy.
This latter point, it seems to me, is critical. After all, why d
we find torture so profoundly objectionable? Not only, I would
suggest, because it involves the deliberate infliction of pain on
another human being-although that is bad enough-but also, and
more fundamentally, because it consists in an attempt to coerce
another through direct assault on his physical (or perhaps
psychological) integrity. As such, it represents a fundamental attack
on the juridical personality of the individual, his claim to recognition
as a free subject who can choose either to speak on matters of
concern to him, or to remain silent. When such an attack is
undertaken by the agents of the state, which exists (in part) to protect
the juridical claims of those who are subject to it, it is a particularly
egregious offense. When such attacks become part of sanctioned
state policy, they are intolerable. It is precisely the mark of a
civilized nation to refuse to adopt such a policy, even at the risk of
"hundreds of lives."
This example is instructive, because it reveals the limitations of
the ideal of the sacredness of human life, taken by itself. This ideal is
attractive, because it seems give powerful expression to our sense
that there are fundamental constraints on our treatment of one
another. Up to a point, it does so, but as Perry's discussion in
Chapter Four indicates, even this ideal allows for the possibility of
harming individuals under certain conditions. That concession, in
itself is not problematic; it is difficult to imagine any credible
account of morality which would not make such a concession.
Rather, the difficulty with the ideal of sacredness is that taken
by itself, it offers us little guidance for determining what kinds of
harms are permissible, towards whom and under what circumstances.
If every life is sacred, then this seems to imply that no life may be

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94 JOURNAL OF LAW & RELIGION [Vol XIV

taken under any circumstances. But as Perry shows, this conclusio

is untenable. It is not a denial of the sacredness of the individual to
kill him, assuming that the killing is justified. This seems fair
enough, but it offers us little guidance in determining which killings
are justified, and which are not. Moreover, it offers even less
guidance for determining whether the infliction of harm other than
killing would be justified. That, I believe, is why the logic of the
ideal directs Perry's argument away from the specific case of
judicially sanctioned torture, in the process obscuring the distinctive
issues which that case raises.
Moreover, the ideal of the sacredness of life, taken by itself, can
actually provide a sanction for violence against others who are seen
as threatening that ideal. We see this very clearly in this country,
where harassment and even murder are justified in the name of
protecting the sacred lives of the unborn. Of course I am not
suggesting that Perry intends or would in any way support such an
interpretation of the sacredness of human life. Yet we can
understand how this ideal, translated into a social program and
applied without any countervailing principles, might be developed in
the direction that the most violent anti-abortion protestors have taken
it.
If human life is taken to be sacred, and if other moral
commitments are considered to be secondary at best, then the
protection of life readily becomes an overriding value. This might
imply that no one at all should be subject to violent attack, and of
course many do draw just this conclusion. But it can also be taken to
imply that those who appear to be attacking human life are so
profoundly depraved that they have forfeited any claims to
consideration. Seen from this perspective, the humanity of abortion
providers recedes from view, while the loss of life intrinsic to
abortion takes on overwhelming moral significance. Is it any wonder
that from this perspective, the killing of abortion providers appears to
some to be a justified evil, or even a commendable act?
I do not know whether the Israeli court that sanctioned torture
made an appeal to the sacredness of human life in its deliberations.
Yet it is easy to see how this ideal might be interpreted in an
analogous way to support such a policy. If we focus our attention on
the sacredness of the lives of the victims of Palestinian terrorists, then

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77] FROM NATURAL LAW TO HUMAN RIGHTS 95

it is easy to lose sight of the humanity of the terrorists-and from

there it is a small step to focusing on the sacredness of potential
victims, to the detriment of possible terrorists. In such a frame of
mind, what is the value of this Palestinian, who may well be a
murderous terrorist (although we cannot be sure of that!), over
against 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 a
doctrine of subjective human rights. That is, this doctrine is valuable
because it keeps attention focused on the individual before us, this
person who claims immunity from fundamental forms of injury and
assault. It does not follow that these claims can never be overridden.
But because they have juridical force, they cannot be overridden
without some process of adjudication, in which the individual can
speak freely on his own behalf. This proviso would allow for judicial
punishment, perhaps even capital punishment, but it is clearly
incompatible with torture, which is meant precisely to destroy a
person's capacity to speak and act on his own volition.
This, in my view, is why rights talk matters-that is to say, why
we need a concept of subjective rights which adds something
distinctive to a general commitment of non-maleficence. This
concept is valuable and important for just the same reason that many
have found it to be problematic, namely its focus on the individual
and his claim to juridical recognition. By maintaining this focus, it
confers on individuals the opportunity to assert their own sense of
dignity, and where necessary, their own sense of injury before society
as a whole.34 In this way, it is both an expression of, and a vital
safeguard for the dignity of the individual person. It is true that
rights theories are subject to abuse, and need to be contextualized by
a wider framework of moral and social commitments. Nonetheless, I
believe that a strong concept of human rights is essential to
maintaining a just and humane society, and for that reason, we should

34. I came to realize the significance of this aspect of natural rights theories
through reading Judith N. Shklar, The Faces of Injustice (Yale U Press, 1990), even
though natural rights theories as such are not her main focus of concern there.

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96 JOURNAL OF LAW & RELIGION

avoid the conclusion that "rights talk" is simply a dispensable

expressing whatever we take to be an exigent moral claim.35

35. A portion of this paper is taken from my Natural and Divine Law:
Retrieving the Tradition for Christian Ethics (Novalis: Ottawa & Eerdmans, 1999)
and the relevant section is reprinted with the kind permission of Novalis Press. In
addition, earlier drafts of this paper were read during a series of lectures sponsored
by the Australian Theological Forum, April 17-18, 1998, and at a faculty seminar
sponsored by the Erasmus Institute, the U of Notre Dame, December 8, 1998. I
benefited greatly from the many comments offered at these lectures.

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