Thomas International

This article has previously appeared in the American Journal of Jurisprudence, 1991, vol. 36. We thank this journal for granting us permission to republish it in our Thomas International website.

In what follows, I shall do three things. First, I shall review the contrast between the natural law tradition and the modern tradition of natural or human rights, a contrast of which we have been reminded in recent times by Michel Villey and Alasdair Maclntyre. Second, I shall discuss attempts to overcome the opposition between the two traditions, particularly the suggestions of Jacques Maritain, John Finnis, and Felicien Rousseau. Third, I will comment on what seem to me to be the successes and failures of these irenic efforts.

The name most readily associated with the insistence that individual rights, natural rights, are a modern innovation, having no counterpart in ancient or medieval jurisprudence, is that of Michel Villey. Over a long career, in season and out, he has argued that all efforts to find in the Aristotelian dikaion or the Roman ius anything like what we mean by a right are misbegotten.[1]

The just, what’s fair, the dikaion or iustum is a thing, a relation or proportion, out there, to be objectively determined by the judge so that the contentions of the parties to a suit are adjusted. The shift from the just as a “thing” (in a large sense of the term, as out there, an object) to something someone or everyone has, in virtue of which one can make claims on some or all others, is fundamental and Villey traces its origins to the so-called Second Scholasticism, the Iberian renaissance at Salamanca when, because of the unnoticed inroads of nominalism, rights began to be spoken of as inherent in individuals.[2] Villey’s association of human rights and nominalism has been contested,[3] and of course Villey’s insistence would have been unnecessary if there were not many who argued for a continuum between the ancients and moderns.

Perhaps no one would disagree with Villey’s reading of Aristotle, the Roman jurists, and St. Thomas Aquinas, when he argues that the just, the dikaion, ius, do not name a quality or faculty or power of individuals. That there is no suggestion whatsoever in ancient or pre-nominalist medieval thought of rights in the modern sense has been contested, however.[4] But even when Villey is accused of overkill in making his basic historical point, most critics agree that the mark of the modern is to elevate a theory of society and law on individual human rights and in this the modern surely differs from the ancient and medieval. Moreover, Villey has pointed out, supposed instances of subjective rights in Gaius, for instance, have a distinctly odd ring to them. For example, reading of a ius altius tollendi, we would naturally think of this as a householder’s right to add a story to his house. But there is also a ius non extollendi, and this must sound odd to us; what could it mean to have a right not to build higher? Unless of course we imagined an ancient paterfamilias being importuned by his household to lift his roof. But that is not what is meant. There are certain situations in which it is fair, just, objectively right, for one to add to his house and other situations in which it is not. What right means in that sense is the object of the judge’s sentence or judgment. Villey also draws attention to the right of a parricide to be put in a sack full of vipers and dropped into the Tiber. It is difficult to imagine a Human Rights Commission coming to Lizzie Borden’s aid to insure that she be given her rightful sackful of snakes and a dip in the river.

Of course if Villey’s point were merely a verbal one, namely, that the term “right” has altered its meaning in the course of the centuries, we might be reminded of C.S. Lewis and his Studies in Words. Lewis sought to warn the modern reader that if he takes words in the sense they have nowadays in reading Shakespeare, say, misunderstanding will ensue—words like “genius” and “nature,” for example, have meanings in medieval and Renaissance literature they do not have for us. But one cannot miss in Villey’s tone the assumption that we are witnessing, not merely an alteration of meaning, but also a decline when the term “right” slides toward an almost exclusive use as the claims an individual can make.

As a devout Catholic, however, Villey could not have missed the way in which such documents of Vatican II as Gaudium et Spes and so many other magisterial documents employ without hesitancy the language of human rights.[5] Indeed, he dedicates Le droit et les droits de l’homme to John Paul II “fihialement ces quelques réflexions suscitée par son discours sur les Droits de I’Homme.” In his later writings, he concedes that, given the growth of the modern state, talk of rights as protective claims against state encroachment makes increasing sense, but this is a reluctant agreement since Villey remains convinced that most rights claims are chimeric.

I cite Villey here to stand for all those scholars who see contrast and conflict between natural law and natural rights. Although he would not perhaps see his views in terms of that division, Alasdair Maclntyre had been one of the most eloquent recent critics of the notion of natural rights. His criticisms can be attached to Villey’s effort to derive natural rights talk from the rise of nominalism and the emphasis on the individual. But Maclntyre would underscore that the individual who is the supposed carrier of rights simply does not exist. Natural rights theory imagines human beings as monads prior to any interpersonal relations, lodged in no particular culture or tradition. Since there are no such individuals, if natural rights require such individuals, natural rights are chimeric indeed.

Lacking any such social form, the making of a claim to a right would be like presenting a check for payment in a social order that lacked the institution of money.[6]

In more recent books, Maclntyre has continued his critique of modernity, but, as if in response to charges that he is a relativist, has honed the techniques he feels are necessary if anything like communication between different traditions is to take place.[7] It is a large question whether Maclntyre can be located in terms of the opposition between natural law and natural rights. For the nonce he does service in this paper as, along with Villey, one of the most authoritative questioners of human or natural rights.

While there are disputes as to when precisely it begins—and to some degree about its novelty—the modern theory of human or natural rights is generally recognized to be based on so different a view of man than that which grounds natural law that any effort to reconcile these traditions must seem quixotic. No doubt there are many who thoughtlessly use natural law and natural rights as though they were simply synonymous. It is far more interesting to find considered and serious efforts to relate and reconcile the two traditions.

Jacques Maritain addressed the problem of natural law and natural rights on a number of occasions, but for purposes of this paper, the treatment in Man and the State will be taken as canonical.[8] The problem arises when Maritain confronts the problem posed by the fact that signatories of the 1948 Universal Declaration on Human Rights held radically different views of what is human and what is right, to say nothing of democracy, which figures essentially in the document. Maritain states a thesis: men mutually opposed in their theoretical conceptions can come to a merely practical agreement regarding a list of human rights.

Maritain, who served as French ambassador to UNESCO, was not deluded about the practical situation. The member states represent different and conflicting ideologies, philosophical and religious traditions, cultures, histories. Agreement by their representatives on such a declaration as that of 1948 thus must seem either merely verbal or cynical or hopelessly confused. The philosophical question that arises has to do with the rational foundation of human rights. He puts his own cards on the table immediately. “The philosophical foundation of the Rights of man is Natural Law” [80]. Distinguishing the many and various theories of natural law from natural law itself, Maritain puts forth his own account which will “reestablish our faith in human rights.”

The true philosophy of the rights of the human person is based upon the true idea of natural law, as looked upon in an ontological perspective and as conveying through the essential structures and requirements of created being the wisdom of the Author of Being. [84]

Maritain sees a natural law tradition that goes back through Grotius and Suarez and Francisco Vitoria to Thomas Aquinas (“He alone grasped the matter in a wholly consistent doctrine, which unfortunately was expressed in an insufficiently clarified vocabulary”).[9] The first element of natural law is an ontological one, by which Maritain means that there exists a human nature, thanks to which every human person is gifted with intelligence and is capable of pursuing ends in a way for which he or she is answerable. This nature is the basis for judgments of the normal functioning of the agent whose nature it is. A proper understanding of what man is thus generates knowledge of what man should be and do. The law of man’s nature is a moral law. This ontological element is both a given and an ideal.

Maritain calls the second element of natural law gnoseological, by which he means our grasp or knowledge of the ontological element. This knowledge is one of the prime instances of connatural knowledge: we do not grasp the law of our nature in concepts and theories: “It is obscure, unsystematic, vital knowledge by connaturality or congeniality, in which the intellect, in order to bear judgment, consults and listens to the inner melody that the vibrating strings of abiding tendencies make present in the subject” [91-92].

Is Maritain unaware of the breach others have seen between the natural law tradition and the tradition of human rights? Not at all. But he is convinced that antagonism between the old and new rights of man is overstated and far from insuperable. Here he has in mind as new rights the social and economic rights insisted on by Marxists. By the same token, he sees no insuperable obstacle to aligning natural law and natural rights in the old sense.

One is nonetheless somewhat surprised at Maritain’s confidence about the compatibility of natural law and natural rights. Indeed, he takes modern lists of rights as just what natural law is meant to ground. That there might be other theories of those rights which are in conflict with his theory does not disturb him because he has distinguished the knowledge of the natural law from the natural law that is known. What is known is the way things are and theories either get that right or they don’t. The task then is not to get the other theories to capitulate to his theory, but to get them all in accord with what they purport to explain.

The very title of John Finnis’ masterly book of a decade ago— Natural Law and Natural Rights’[10] —calls attention to the two traditions. Finnis’ task is half completed before he turns to an explicit treatment of rights but he then observes that his whole book has been about human rights, which he takes to be synonymous with natural rights. Indeed, “The modern grammar of rights provides a way of expressing virtualily all the requirements of practical reasonableness,” the latter phrase itself being equivalent for Finnis to the tradition of natural law.

Is Finnis unaware of the dramatic difference others have found between natural rights and natural law? Far from it. He provides an excellent sketch of the history of the use of the term ius from St. Thomas, where it retains the sense it had in Roman law, to a dramatic shift that occurs with Suarez and Grotius and peaks in Hobbes’ opposition of ius and liberty. With Locke “right” becomes all but defined as liberty. The major difference, Finnis observes, is that in Roman law, the right was an objective proportion, a relation, what the judge was guided by when he set things aright. After the great change, however, a right is something someone has.

Despite this, Finnis is confident that rights talk provides both a vocabulary and a grammar which will enable him to give an alternative expression of the version of natural law he has developed in conjunction with Germain Grisez. The treatment of rights by Finnis, far from being merely the appropriation of a grammar, amounts to a noteworthy contribution to the theory. He adopts and adapts Hohfeld’s analysis of rights, according to which rights always involve a triadic relation between one person, one act-description, and one other person. Claim-rights, liberty, power, and immunity are deftly defined. For purposes of human rights, claim-rights and liberties are most important, and claim-rights have duties as their correlatives, while liberties have as their correlative the absence or negation of duties. Whether or not a claim-right requires an identifiable person for whose benefit the duty has been imposed is a matter of stipulation. Finnis contrasts that technical problem with the philosophical question as to what it is to have a right. He identifies two theories, the benefit theory and the choice theory of his mentor, H.L.A. Hart. Finnis himself can perhaps be described as a modified choice-theorist, but then he suggests that Hart too modified his view. The choice theory arises because it regards the benefit theory as seeing rights simply as the reflex of rules which impose duties. Hart taught that moral rights amount to a branch of morality which seeks to determine when one person’s freedom may be limited by another. On this view, the point of “rules which entail or create rights is that such rules specifically recognize and respect a person’s choice, either negatively by impeding or obstructing it (liberty and immunity) or affirmatively by giving legal or moral effect to it (claim-right and power)” [204]. But Hart came to see that choice theory was inadequate, writing that “the core of the notion of rights is neither individual choice nor individual benefit but basic or fundamental individual needs.”[11] Unsurprisingly perhaps, Finnis sees this as identical with his own notion of basic aspects of human flourishing.

we may safely speak of rights wherever a basic principle or requirement of practical reasonableness, or a rule derived there from, gives to A, and to each and every member of a class to which A belongs, the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including inter alia, any requirement not to interfere with A’s activity or with A’s enjoyment of some other form of good) or of (ii) the ability to bring it about that B is subject to such a requirement, or of (iii) the immunity from being himself subject by B to any such requirement. [205]

In short, as he predicted, Finnis is able to recast his whole theory into rights talk. The benefit theory of rights has been shown by Hart to be only a special case of the choice theory, so we are prepared for Finnis’ steady correlation of rights and duties. In his view, “the modern vocabulary and grammar of rights” is an instrument for reporting and asserting the requirements of a relationship of justice from the point of view of the person(s) who benefit(s) from that relationship [205].

No wonder, then, that after having sketched the great shift in the meaning of “right” that marks the modern age, Finnis says that there is no need “to turn back the clock.” Indeed, he finds “the modern idiom of rights more supple and, by being more specific in its standpoint or perspective, capable of being used with more differentiation and precision than the pre-modern use of ‘the right’ (ius)” [209].

Accordingly, his treatment of the Universal Declaration of Human Rights of 1948 provides not only a keen analysis but a general acceptance of it and similar manifestos. His attention is drawn to the specification of what can legitimately limit the exercise of a right. To say that the exercise of human rights is subject to the common good is otiose, “For the maintenance of human rights is a fundamental component of the common good” [218].

On the other hand, we can appropriately say that most human rights are subject to or limited by each other and by other aspects of the common good, aspects which could probably be subsumed under a very broad conception of human rights but which are fittingly indicated (one could hardly say, described) by expressions such as “public morality,” “public health,” “public order.”[12]

Thus it is that John Finnis provides an extended basis for his contention that natural law and natural rights can be regarded as two sides of a coin, related generally as duty and right. The modern use of “right” to mean something someone has turns out to be simply a restatement of the requirements of justice from the side of the recipient, so to speak. But it is not simply that the old talk can be translated into the new, Finnis shows a preference for the new and on occasion goes to some lengths to sing its praises. [220-2 1][13]

The Rousseau I have in mind is not Jean Jacques but Felicien, whose 1982 book, a masterful reading of the fundamental Thomistic texts on natural law, conveys the spirit of the Faculte de Philosophie at Laval University in its golden age.[14] In the course of his excellent book Rousseau takes exception to a remark of d’Entreves to the effect that Thomas’ account of natural law lacks that which is distinctive of the modern age, namely a doctrine of rights.[15] Au contraire, says Rousseau, and proceeds to argue the opposite.

Car La connaissance de la loi naturelle, scion iui, repose tout entiére sur une question de “droits,” et de droits réconnus par “la raison naturelle,” donc de droits “inalienables” face a La legislation positive de L’Etat. Mais La coherence de son exposé, a ce sujet, est telie qu’elle n’aurait jamais autorisé l’attribution d’une primautC a cette forme de “droits naturels” transformés, sans pius, en revendications subjectives. [159]

What rights does Rousseau imagine that Thomas teaches are grasped by natural reason, even though he agrees that these cannot be transformed simply into subjective claim-rights? His case for rights reposes on a remark Thomas makes a number of times to the effect that, while sin obscures natural law precepts having to do with love of God and neighbor, such obscurity never extends to self-love and the love of one’s own body.[16] Is Rousseau suggesting that inalienable rights arise from self-love? Well, he quickly dissociates Thomas from Locke, feeling the latter, under the influence of a decadent nominalism would turn men into little divine monads. “For Thomas, man is by nature a sociable animal, made for living with God and other men, according to his most proper inclinations. The individual can claim ‘natural rights’ only if he begins by recognizing his duties with respect to the ‘natural rights’ of others. From the outset, the search by naturally sociable man for ‘his natural rights’ is marked with the seal of solidarity” [163].

In short, Rousseau is suggesting a reciprocity of duties and rights. If I am obliged to give another his due, the reverse of this is that he is obliged to give me my due. Rights-claims make no sense apart from this social interaction. Fortin calls this a “stillborn attempt to demonstrate that Thomas’ doctrine is nothing but an earlier version of the modern ‘rights’ theory, shorn of its individualism.”[17] The suggestion is certainly an inference from what Thomas actually says since, as Fortin observes, “All of the texts adduced in support of this paradoxical conclusion speak, not of rights, but of duties and obligation.” Rousseau is not at all clear that what he is proposing is a restructuring of Thomas’ doctrine of natural law so that it seems amenable to a rights interpretation, but in the course of this discussion he is anxious to dissociate Thomas from the modern doctrine of rights he was initially anxious to associate him with. Surely it is fanciful to call the decalogue the oldest charter of the rights of man [173].

Despite the grandiose title of his book, Rousseau’s claim that Thomas’ doctrine of natural law is just as such a theory of natural rights, leaves untouched the difficulties Maritain acknowledged and wholly lacks the subtlety of Finnis’ analysis of rights. One would have expected a sustained and detailed effort on Rousseau’s part to confront the human or natural rights tradition and to spell out his contention that in Thomas we have a version of rights theory without those aspects of it which make any natural lawyer wary.

Thus far I have sought to show that there is a fairly clear opposition between those who see the rise of natural rights as an effective rejection both of natural law and the presuppositions of natural law and those who see talk of rights as more or less easily graftable onto the tree of natural law.

Were one to take this simply as a matter of the interpretation of St. Thomas Aquinas or the exegesis of Thomistic texts, a division of opinion would swiftly make itself known. On the one hand, there is the emphatic and generally authoritative voice of Dom Odon Lottin, who states quite categorically that there is no trace of the modern sense of a right in the decretist or theological literature of the twelfth and thirteenth centuries. In those texts, ius preserves what Lottin calls its primitive, objective sense. So too, while to modern ears “law” evokes primarily the notion of obligation, the binding of the will of its subject, the decretists and theologians Lottin has studied see law primarily as a principle of order, a rule of life, a norm for morality. That is why, he concludes, the medievals used lex and ius interchangeably.[18] Whenever St. Thomas speaks of what we would call a right, he uses such terms as “is licit” (licitum) or “power” (potestas), as when speaking of private property, self defense, etc.

Others have found such claims astounding, and advance texts in which right in the subjective sense seems in play.[19] The efforts of Maritain, Finnis, and Rousseau, as indicated earlier, are not isolated irenic efforts, but representative of a school of interpreters of St. Thomas.

I mentioned earlier that Michel Villey seemed somewhat startled to find that his Church had come to use the language of rights with almost as much abandon as anyone else. Rights claims proliferated in conciliar and other magisterial documents. In Donum Vitae, Cardinal Ratzinger spoke of a right to be born by natural childbirth. The pleasure the Catholic might find in mocking growing lists of human rights is dimmed when he finds the Magisterium addressing him with this same language. What is the explanation of this shift?

In what I regard as an all but incredible account, Father Joseph Joblin, in one of the two papers prepared for discussion at an international conference organized by the Pontifical Council for Justice and Peace in November of 1988, presents the emergence of human rights as the basis for political society as pretty much an unequivocal plus and the Church’s adoption of this basis as more or less progress. He draws attention to the remarkable change in the Church’s attitude, but suggests that the change may be more apparent than real. The Church’s “conversion” on the matter is put into quotation marks. Undeniably, there is the historical record of Pius IX, Gregory XVI, and Pius VI. The last named pope commented scathingly on the 1789 Declaration of the Rights of Man, calling it madness.

This absolute freedom is established as a right of man in society. It not only guarantees him the right to not be disturbed because of his religious opinions, but it also gives him licence to think, speak, write, and even print with impunity everything which the most unbridled imagination can suggest about religion. It is a monstrous right which seems nonetheless to the Assembly to result from the innate quality and freedom of all men . . . a chimerical right . . . contrary to the rights of the supreme Creator.[20]

Not precisely the tone of Gaudium et Spes or of almost every encyclical, allocution, and animadversion of the present pontiff.

Joblin formulates the following propositions to sum up what he calls the historical development of human rights.

1. The thread or theme running throughout the history of Western ideas is the deepening of the concept of human dignity.

2. The implementation of this concept today implies pluralism, given the present-day intermingling of different civilizations and systems of society.

3. The State can no longer be considered as being invested with the mission of imposing a concept of human rights which becomes an ideological or religious system.

4. The Church must be a sign of the aspirations of people for unity despite their differences. Christians have the responsibility of translating this need into their everyday lives by trying not to impose their point of view, but by refusing to cooperate in those actions which they judge contrary to the true interests of the human person, whatever the consequences may be. [46]

By any reckoning, this is surprising. If the Church has not undergone a conversion, it seems clear that Father Joblin has. But it is an uneasy conversion. Does he really think there has been a deepening of the concept of human dignity? Given the admitted, even celebrated, pluralism of accounts of what that dignity might consist in, it is difficult to grasp his point. Of the state, he accepts a purely procedural conception—the state is a referee of supposed moral neutrality. “The Christian point of view” is treated as a subjective quirk, not to be wished on others, though Christians will not of course actively cooperate in activities injurious to “their conception” of the dignity of the human person. If this were put forth sadly as the best we can hope for, it would be one thing, but to have this meager menu stand for progress is truly astonishing.

If there is to be any conjunction of the natural law tradition and natural or human rights, the latter are going to have to be grounded in the same thing as the former: the way it is—with the world, with man, with his destiny. To speak of a pluralism in this regard would seem to be bankrupt since among the plurality of views would doubtless be contradictory opposites. That human society can be variously arranged in keeping with the precepts of natural law is scarcely a deliverance of modern thought. But of course that cannot be what Jablot means. He has defined human dignity in such a way that the only legitimate regime would be democracy, but participation amounts to pushing one’s subjective views, making claims on others, demanding exemptions from the judgments of others as to what ought to be done or what may not be done. No wonder Jablot embraces human rights in what would appear to be the most impoverished sense of the phrase.

It should escape no one that, if the Church and Magisterium speak of human rights and the dignity of the human person this is not on the basis of what is taken to be one opinion or view among many. It is because the human person, any human person, is what he is that we owe one another things in justice. In the Maritain or Finnis manner of seeing rights talk as the recipient’s view of the relation of justice, rights have to be grounded in what Maritain at least would call the precepts of natural law. But surely not all exponents of and defenders of rights would agree, and agreeing to disagree does not seem to be much of a foundation for rights.

Rights as the reverse of obligations do not begin to cover the pullulating claims of rights, the lengthening lists of non-negotiable demands, the novel assertions put forward as somehow self-evident. To the degree that the concept of human rights can be accommodated by the natural law tradition in which St. Thomas moves, the phrase “human rights” will be equivocal as between Thomists and most of their contemporaries.[21]

* This article was read at the Annual Meeting of the Natural Law Institute in April, 1991, at the University of Notre Dame Law School.

[1] Michel Villey (1914-1988) taught Roman law at Paris. Among his publications are Philosophie du droit, tome 1, 4th ed. (1986); tome 2, 2nd ed. (1984); Lecons d’histoire de la philosophie du droit (1984); La formation de Ia pensée juridique moderne (1986); Recherches sur la litterature didactique du droit romain (1945); Le droit et les droits de l’homme (1983); Questions de Saint Thomas sur le Droit et Ia Politique (1987).

[2] See now Michel Bastit, Naissance de la loi moderne (1990). Written under the influence of Villey (“Ce livre a été rendu possible grace a I’enseignement et aux conseils de Michel Villey, qui avait accepté d’en rédiger la preface. II a été rappelé a Dieu avant d’avoir pu l’écrire. Ces pages lui sont dediées.”), Bastit’s book makes in detail Villey’s historical argument, passing from Aquinas to Suarex via Scotus and Ockham. His suggestive tags for these stages are “Ia loi analogique,” “la loi univoque,” and la loi dialectique.

[3] See Brian Tierney, “Villey, Ockham and the Origin of Individual Rights,” in The Weightier Matters of the Law, Essays on Law and Religion, A Tribute to Harold J. Berman (John Witte, Jr. and Frank S. Alexander, eds. 1988), pp. 1-31. Few scholars can have been accorded as fair and thorough a reading of their oeuvre as Tierney gives Villey in this magnificent essay. Tierney feels no need to detract from Villey’s achievement in order to register a pretty profound disagreement with a central element in it.

[4] See P.H. Hering, “De jure subjective sumptu apud s. Thomas,” 16 Angelicum (1939), pp. 295-97; Louis Lachance, O.P. devotes the third part of his Le concept de droit se/on Aristote et S. Thomas (1933), to droit subject pp. 327 ff. See too Jean-Marie Aubert, Le droit Romain dans l’oeuvre de Saint Thomas (1955).

[5] I hope death spared Villey knowledge of Joseph Joblin’s, “The Church and Human Rights: Historical Overview and Future Outlook,” in Human Rights and the Church (1990), PP. 11-46.

[6] Alasdair Maclntyre, After Virtue (1981), p. 65. Maclntyre prefers to call rights moral fictions with highly specific properties. There may be no natural rights but there is lots of talk about them and that is real enough and has consequences.

[7] See especially Alasdair Maclntyre, Three Rival Versions of Moral Enquiry (1990).

[8] Published by the University of Chicago Press in 1951, the book consists of Six Waigreen Lectures given at the University of Chicago in December, 1949. It is noteworthy that Leo Strauss’ Natural Right and History (1953) also consists of Walgreen Lectures that were delivered in October of 1949. Autumn, 1949, was a golden season in Chicago. Maritain’s discussion of rights is to be found in Chap. IV, pp. 76-107.

[9] Maritain sees a conflict between Thomas’ talk in his Commentary on the Sentences of primary and secondary precepts and his treatment in Summa theologiae, IaIlae, q. 94. He also thinks Thomas’ respect for the stock phrases of the Roman jurists, particularly Ulpian, got him in trouble. Cf. p. 85, n. 6.

[10] Natural Law and Natural Rights (1980, rept. 1982, 1984). The explicit discussion of rights is to be found in Chap. VIII, pp. 198-230.

[11] H.L.A. Hart, Oxford Essays, pp. 200-01, cited in Natural Law and Natural Rights, p. 205.

[12] Ibid., p. 218. Finnis is thinking of Article 29, para. 2 of the Universal Declaration of 1948.

[13] Attention should be drawn to Finnis’ defense of rights talk from the embrace of consequentialists and his strong critique of Dworkin and any others who maintain that the attempt to seek to embody in legislation some conception or range of conceptions of human flourishing is unjust because it treats unfairly those in the community who do not share those conceptions and whose activities may accordingly be restricted by legislation. See pp. 221 ff.

[14] Felicien Rousseau, La croissance solidaire des droits de l’homme: un rétour aux sources de l’èthique (1982). An excellent review by Ernest Fortin appeared in Rev, of Metaphysics (1985), pp. 684-86. Fortin calls attention to the treatment of rights in Rousseau and rightly, as I shall suggest, questions the Thomisticity of his book on this point.

[15] A.P. d’Entreves, “The Case for Natural Law Re-examined,” 1 Natural Law Forum (1956), pp. 5-52.

[16] Cf. Summa theologiae, IaIIae, q. 100, a. 5, ad lm. Thomas is addressing the question as to why the decalogue includes no precepts enjoining us to love ourselves, but only precepts having to do with love of God and neighbor.

[17] Fortin, loc. cit., p. 685.

[18] “De nos jours, le terme ius revet deux sens: un sens primitif, ce qui est du c’est-à-dire l’objet de la vertu de justice, et un sens derive, Ia faculté inviolable qu ‘un sujet possède d’orienter cet objet a son avantage. Or, on ne voit nulle part ce dernier sense subjectif dans la litterature du xiie et de xiiie siècle. Pour les decrétists et pour les thèologiens, y compris saint Thomas, le terme ius represente toujours le sens primitif, objectif. De nos jours aussi, le terme de lex evoque avant tout l’idèe d’obligation morale, de lien qui vincule la volonte du sujet. Les decrétistes et les thèologiens n ‘ont certes pas ignore ce sense du mot; toutefois, a leurs yeux, Ia loi, avant d’être un principe d’obligation, est un principe d’ordre, régle de vie, norme de moralité. Aussi bien, on a peu le remarquer, chez eux les termes de ius et de lex s’échangent indifférement.” Odon Lottin, Le droit naturel chez saint Thomas d’Aquin et ses predecesseurs (1931).

[19] H. Hering, O.P., “De iure subjective sumpto apud s. Thomam,” 16 Angelicum (1939), pp. 295-97. In a note, Hering mentions Lehu, Philosophia Moralis et Socialis (1914), and Spicq, Revue des sciences philosophiques et thèologiques (1929), and others as holding what Lottin does. The texts mentioned by Hering are, from the Summa theologiae, IaIIae, q. 58, a. 2 (ius contradicendi); IIaIIae, q. 62, a. 1, ad 2m (ius dominii); IIaIIae, q. 66, a. 5, ad 2m (iuspossidendi); IIaIIae, q. 69, a. 1 (ius praelationis); IIaIIae, q. 87, a. 3 (ius accipiendi); ha, q. 46, a. 3, obj. 3 (ius in homine); ha, q. 57, a. 6, ad 3m (ius mansionis coelestis); lila, q. 67, a. 2 (ius accedendi ad mensam Domini); lila, q. 67, a. 6 (ius baptizandi) Suppi., q. 57, a. 1, ad 7m (ius successionis); Sppl., q. 64, a. 1, ad 3m (Si aliquis redditur impotens ad debitum solvendum . . . mulier non habet ius plus petendi.); SppI., q. 64, a. 4, ad im (ius petendi); Q. D. de virtutibus in communi, q. 1, a. 4 (ius et facultatem repugnandi); Quodlib. II, 8 (ius exigendi).

[20] Pius VI, Letter of Cardinal de la Rochefoucauld, cited by Jobert, p. 15.

[21] A difficulty that faces both the natural law and natural rights traditions is the accessibility of human nature which is the vehicle of claims of either obligation or right. One of the marks of Maclntyre’s work—we have noted it in his dismissal of rights—is that the contextless, ahistorical, human person does not exist. What needs to be done, as I suggested in “What Do Communities Have in Common?”, in What Right Does Ethics Have? (Sander Griffioen, ed. 1990), pp. 47-59, is to see natural rights precepts, not as a rival of the view that we learn our morality within a quite particular tradition, but rather as the claim that there are embedded in diverse traditions common appreciations of the human good which can, under pressure, be formulated abstractly.