To be published in  Oxford Handbook of Political Philosophy (Oxford: Oxford University press)

Rights

Kenneth Pennington

Every human society has possessed a rudimentary notion of rights that protected individuals in law and sometimes from the law.  One of the most notable characteristics of Western societies has been the development of individual and group rights in legal, theological, and philosophical thought of the first two millennia.  It has often been noted that thinkers in Non-Western societies have not had the same preoccupation with rights.  One of the contemporary consequences of this divergence has been the accusation that Western democracies have wished to impose their norms on unwilling and unreceptive societies, especially through treaties of the United Nations.

The very concept of rights is laden with numerous problems.  Universality is the most basic and difficult.  Thomas Jefferson claimed in the American Declaration of Independence (1776) that individual human beings have rights that are not dependent upon any  human system of law:

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.

The main rights that Jefferson listed were equality, liberty ― today he would have most likely written “freedom” ―  and the right of consent and of resistance.  All these rights have, as we will see, long histories in the Western tradition.  However, some modern thinkers have rejected Jefferson’s claim that all human beings have “inherent and inalienable rights.”  They have argued that all systems of rights have been the product and the expression of the beliefs and morals of individual societies, religions, and cultures.  They also point out, quite rightly, that human societies have either not recognized the same rights as others or have embraced conflicting rights.  As Brian Tierney has noted, “All civilized societies have cherished ideals of justice and right order, but they have not normally expressed those ideals in terms of individual natural rights --- it would be hard, for instance, to imagine a Confucian Hobbes or Locke” (Tierney 1997: 1-2).  Consequently, if human rights are only a product of Western ideas of justice, they cannot have universality.  In an age that is dominated by conceptions of law embracing some form of legal positivism, many scholars recognize only individual rights that have been established by the constitutional jurisprudence of individual countries or their legal systems.  This is particularly true of the legal culture in the United States.   One of the dismal consequences of legal positivism’s jurisprudence of rights is that American citizens have a greater claim to these rights than non-citizens.   Another more general consequence is that since the nation state has become the repository and defender of rights, it has granted itself the power to strip them from citizens and non-citizens alike.

The discussion of rights in the modern world has focused on several questions that I will ignore in this essay focusing on the history of rights.  Perhaps the most important that I will omit is how rights are currently defined and categorized.   Modern thinkers have distinguished two broad categories of rights: subjective rights or natural rights (which Jefferson called inalienable) and rights bestowed upon persons by the legal system.  However, the analysis has not stopped there.  Wesley Newcomb Hohfeld (1913) created a complex and sophisticated categorization of rights that has sharpened our understanding about exactly how we may define a particular “right,” but his analysis of “rights,” which he placed into categories of claims, liberties, privileges, powers, and immunities, has almost no historical roots ― although they have been applied to the thought of historical figures (Thomson 1990; Reid 1991; Tierney 2006).

In the English-speaking scholarship, rights have also been captive to an impoverished vernacular that has complicated scholarly study and analysis.  This lack of suppleness of the English language has led to the Balkanization or compartmentalization of thinking about law and rights in English and American jurisprudential thought.  This Balkanization recapitulates and confirms the categories of  “law” and “right” in our language as completely separate ideas.  A passage from Hobbes’ Leviathan illustrates this point:

The Right Of Nature, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for preservation of his own Nature .  .  .   A Law Of Nature, (Lex Naturalis), is a Precept, or generall Rule, found out by Reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same, and to omit, that, by which he thinketh it may be best preserved. For though they that speak of this subject, use to confound Jus and Lex, Right and Law; yet they ought to be distinguished; because Right consisteth in liberty to do, or to forbear; Whereas Law determineth and bindeth to one of them: so that Law and Right differ as much as Obligation and Liberty, which in one and the same matter are inconsistent (Hobbes 1968: 189; cf. Oakley 2005: 87-89).

Hobbes certainly knew that “ius” had more meanings than “right.”    By Hobbes’ time “ius naturale” was commonly translated as a natural right but was also commonly called  natural law.  To distinguish between natural right and natural law Hobbes was forced to use “lex naturalis” to describe a binding law of nature.  If he had been writing in any other European language, he could have used the same term to define both meanings, e.g. “droit naturel” or “diritto naturale.”  This fact would have made his neat distinction between a “right” and a “law” far more difficult to make.  Earlier writers were always aware that when they wrote “ius naturale” to mean natural law, they did not and could not divorce it from the penumbras of norms, rights, and duties that natural right (ius naturale) contained in its DNA (Pennington 2008: 589-591).

            For the history of “rights thinking” it is important to understand the difference between “ius” and “lex.”  Unlike the words right and law in English, the word for law and right in Latin and in most European languages, even in the Germanic and Slavic languages, is equivocal.  Depending on the context, “ius,” “diritto,” “droit,” “derecho,” “Recht,” and  “prawo” mean law, the legal system, and right.   English is the exception. In English, the concepts of law and rights are separate categories, each word having its own cluster of meanings. A reader in French, German, Italian, Spanish, and Polish is constantly reminded that the word “law” means more than just “the principles and regulations established by government and applicable to a people;”¹   it also connotes the power of persons to exercise or vindicate rights. Consequently, when French, Italian, German and other legal systems distinguish between the “law” and the “rights” created by law, they must differentiate between “law” and “subjective laws,” terminology that makes no sense in English (e.g. Droit objectif et les droits subjectifs), but is easily understandable and precise in other languages.  English and American law dictionaries currently used in law schools ignore rights entirely in their definitions of law.²    In order to excavate “rights” from the word law, we must turn to older, pre-John Austin, English dictionaries where we find definitions of law that encompass the “rights and obligations of states, of individuals, and of artificial persons and local communities among themselves and to each other.”³

Thinking about rights can be shaped by our language but also by our historical perceptions about how and where rights emerged in Western jurisprudential thought. If we presume that rights are a creation of the democratic, constitutional nation state, invented to protect its citizens, and graciously bestowed on the citizens of the nation state by a benevolent Leviathan, we might assume that rights are not universal but unexpected byproducts of the transition from the ancien régime to the modern world. In this construct, citizens do have a greater claim to these rights than non-citizens. The nation state alone becomes the repository and defender of the rights of its citizens.  On the other hand, if one understands rights as being a web of norms that transcends the present, as having deep roots in the past, and as having an universal validity and applicability extending far beyond the treaties, constitutions, and declarations, rights become powerful principles that could serve as antidotes to the excesses of the modern state whose jurisprudence is permeated with the doctrine of legal positivism (Pennington 2003).  It is to this past that we now turn.

Historically the emergence of rights in European jurisprudence is intimately connected with the terms “ius naturale” and “lex naturalis” in Western jurisprudence and theological thought.  Although Hobbes did not know it, his use of “lex naturalis” had a history that stretched back to late antiquity.  The Christian theological tradition had long connected the Golden Rule contained in Matthew 7:12 and Luke 6:31 (Do unto others as you would have others do unto you) with a principle of natural law.  Theologians did not, however, adopt the terminology of Roman law, “ius naturale,” but consistently called the Golden Rule a principle of “lex naturalis.”  The first person who seems to have connected the Golden Rule with natural law was a disciple of Jerome in a letter he wrote at his teacher’s death.   Prosper of Aquitaine († ca. 465) linked the Golden Rule to natural law in his commentary on the Psalms.  Haimo of Halberstadt († 853) declared in two sermons and his biblical commentaries that natural law consisted of two precepts:  “Do onto others .  .  .” and “What you do not want done to yourself, you should not do to others (cf. Tobias 4.16).  Whatever the law and the prophets will ordain can be comprehended within these two precepts.”  Remigius of Auxerre († 980) rehearsed the tradition in his commentary on Genesis.   In the late eleventh and early twelfth century Rupert of Deutz († 1129-1130)  declared that natural law is written on the hearts of men, and its expression was the Golden Rule.   Hugh of St. Victor († 1141) and Honorius Augustodunensis († 1156) repeated the tradition.  In the Christian theological tradition, the Golden Rule was a precept and command of Hobbes’ “lex naturalis.”  It may have been a binding “lex” in Hobbes’ definition, but the maxim was much more of a “ius” than a “lex” (For the Latin texts and citations of all the authors cited in this paragraph see Pennington 2008: 575-576).

Later medieval theologians still continued to use the term “lex naturalis,” especially Thomas Aquinas, but in jurisprudence “ius naturale” triumphed in the early twelfth century.^[4] 

   The origins of “ius naturale” lie in the thought of the philosophers and jurists of the ancient world.  They thought that there were rules for human behavior based upon objective, eternal norms and conceived of these norms as having been established by nature and reason.  The Romans were the first to coin the term “ius naturale.”  The Roman orator Cicero († 43 B.C.) summed up an important strand of ancient thought when he argued in his De republica 3.22  that “true law was right reason that was congruent with nature.”  He concluded that “there was one eternal, immutable, and unchangeable law.”   In the third century C.E. the jurist Ulpian defined natural law as what “nature teaches all animals,” including human beings.   He distinguished natural law from the “ius gentium” that was common only to human beings and established by their customary usages.  Ulpian cited the union of men and women (“what we call marriage”) and the procreation of children as examples of natural law (ius naturale).  Most significantly, the  Roman jurist Paul defined “ius naturale” as what was equitable and good.  It was not just a command or an obligation that demanded obedience.  “Ius naturale” required humans to make moral and ethical choices.  Ulpian’s and Paul’s  definition were later included in the Emperor Justinian’s comprehensive codification (ca. 533-536)  of Roman law (Pennington 2008).  Justinian’s codification also included an introductory textbook for the study of law called the Institutes.  The definition of natural law in the Institutes moved the source of natural law from the behavior of creatures to God: “Natural laws (naturalia iura) are established by divine providence and always remain firm and immutable (Institutes 1.2.11).”  A little later the authors of the Institutes asserted  that the “ius gentium” is identical with natural law (Institutes 2.1.11).  In every European law school from the eleventh to the seventeenth century,  professors and students studied and pondered Paul’s, Ulpian’s and the Institute’s definitions — and their contradictions. The Roman jurists were not inclined to interpret “naturalia iura” as natural rights.  Rather they discussed the passage in positivistic terms.  They were “natural laws”  (Weigand 1967: 8-64;  see also Reid 1991:  52-55 for a valuable discussion of ‘ius” in Roman law and a discussion of the interpretive literature).

When Isidore of Seville composed (ca. 620)  his encyclopedic Etymologies (5.4), he combined the two traditions that had circulated in the ancient world and produced the most important definition of “ius naturale” in the European legal tradition (Pennington 2008: 581). 

Natural law (ius naturale) is common to all nations.  It has its origins in nature not in any constitution.  Examples of natural law (ius naturale) are the union of men and women, the procreation and raising of children, the common possessions of all persons, the equal liberty of all persons, the acquisition of things that are taken  from the heavens, earth, or sea, the return of property or money that has been deposited or entrusted.  This also includes the right to repel violence with force. These things and similar are never unjust but are natural and equitable.

There are several points about Isidore’s definition that should be noted.   His first two items, union of men and women and the procreation of  children, probably were taken from the jurists.  The common possession of all persons was a concept found in ancient philosophical and in early Christian thought (Tierney 1959: 27-35 and Tierney 1997: 70-73).  If the first two might be considered both rights and duties, the common possession of all persons is simply a description of the primitive state of humanity.  It was neither a “ius” or a “lex.”  The phrase would have,  as we shall see, a very important role in the development of ideas about rights.   Isidore’s phrase, omium una libertas, the equal liberty of all persons, is particular puzzling and intriguing.  No one has traced the source of the idea in Roman law or in Christian theology.  However, in spite of the radical implications of the phrase for the illegitimacy of slavery, jurists found ways to obviate its subversive message.  Isidore’s last three examples of “ius naturale” move his definition of “ius naturale” out of the realm of commands and mandates of a legal system and into the realm of rights.   Isidore enumerated three examples that can only be rights:  the right to acquire a “res nullius,”  the right to receive property deposited as well as the obligation to return property to its owner, and the right of self-defense.  Isidore’s use of the word “acquisitio (acquisition)” clearly focuses on a person’s right to acquire property when it is a “res nullius.”  One might argue that it is mandate or a law of the “ius naturale” that the air, the sea, and wild animals are the property of no one, but that mandate would not necessarily establish a person’s right to acquire a “res nullius.”  The same point can be made about the gratuitous contract of deposit.  The right of self-defense, perhaps the most universal of all rights, is undoubtedly a “ius” that is not a “lex.”  The main point is that Isidore, unlike the Roman jurists, was clearly thinking of “ius” as a right in these last three examples of “ius naturale” in his list.  If he had to translate “ius naturale” into English when he contemplated the norm of self-defense, he would have rendered the phrase not as “natural law” but as “natural right.”

            From Isidore to the jurist Gratian in the twelfth century there was virtually no discussion of natural law as a norm for human society among the jurists.   As part of his plan to bring order to the chaotic state of church law, Gratian (ca. 1120-1140) compiled a legal collection of ecclesiastical norms.  At the beginning of his canonical collection, called the Decretum, he discussed the various types of laws that regulated and guided the behavior of human beings.  In the opening sentence of his collection Gratian brought natural law to the forefront of all future discussions about the structure of all human law: “The human race is ruled by two things, namely, natural law and customary usages.  Natural law is what is contained in the Law (i.e. Old Testament) and Gospels.”   Gratian concluded that natural law dictated that  “Each person is commanded to do to others what he wants done to himself,”  connecting natural law with the biblical injunction to do unto others what you would have them do unto you (Matthew 7.12).  By defining natural law as the duty to treat other human beings with care and dignity, Gratian stimulated jurists to reflect upon the central values of natural law: the rendering of justice and the administering of equity in the legal system.  To define the contents of natural law he placed Isidore’s definition of natural law on the first page of his  Decretum (D.1 c.7).  Gratian’s excavation of Isidore’s text is quite remarkable because it had not been part of the canonical or Roman law tradition.  Together with the texts of Roman law discussing “ius naturale” in Justinian’s compilation, Gratian’s Decretum became one of the standard introductory texts for the study of law (the Ius commune)  in European law schools, and Isidore’s definition became one of the most important starting points for  all medieval discussions of natural law  (Weigand 1967: 121-196).

            Gratian clearly thought that Isidore did not think of “ius naturale” as a set of laws (leges) but as a set of principles.  The core principle could be summed up by the Golden Rule.  The most influential canonist of the twelfth century, Huguccio (ca. 1190), underlined Gratian’s interpretation (Pennington 2008: 584):

“The return of property or money that has been deposited or entrusted”:  This by right (ius) or evangelical command, in which anyone is ordered to do unto others what he wishes to be done to him, and anyone is prohibited from doing unto others what she would not wish to be done to her.  Reason and the judgment of reason approve the restitution of those things deposited with me or entrusted to me.

Huguccio had much more to say about “ius naturale.”  He located the origin of natural law in human beings.    Natural law is reason, and that reason is a natural power of the soul (naturalis vis animi) that permits them to distinguish good from evil.  This reason is called “ius”  because it commands and “law” (lex) because it binds.  Huguccio also summed up twelfth-century juristic opinion on the force of natural law in human affairs.  Natural law, he observed, consists of three levels of authority: commands, prohibitions, and  indications or declarations (demonstrationes).  An example of a command is the precept to “love your Lord God.”  A prohibition of natural law may be taken from the Ten Commandments, “Thou shalt not steal.”  The third level of natural law leads human beings to choose what is licit and good over what is bad and evil.    For example, in Gratian’s excerpt from Isidore of Seville, liberty is a state that should be granted to all human beings.  Huguccio noted, however, that all men are not free.  Natural law leads men to liberty but does not command it.   He explained that although liberty has its roots in natural law, God introduced slavery into the world because of human sins.  Although medieval thinkers had to confront Isidore’s elegant and stirring maxim that expressed the basic norm of  human freedom (una libertas omnium) constantly, they could not overturn the institution of slavery that was endemic in their world or undermine the rights of slave owners.  

Huguccio and the canonists also introduced the idea of permissive natural law.  As Tierney has pointed out, permissive natural law was often seen as natural rights.   Already in the late twelfth century jurists formulated definitions of “ius naturale” that emphasized the rights of human beings to exercise their free choice (Tierney 1997: 66-69).  Huguccio, for example, used the concept of permissive natural law to analyze private property rights.  If natural law dictated that private property was not a right (Isidore’s “the common possessions of all persons” seems to indicate that it was not), then how can the right to private property be justified?  His answer was a permissive natural law (Tierney 1997: 142 and 2002: 400-401):

By the law of nature something is mine and something is yours, but this is by permission not by precept, for divine law never commanded that all things be common or that some things be private, but it permitted that all things be common or some private.  Consequently by natural law something is common and something is private.

This right to private property that was protected by natural permissive law rested primarily on Gratian’s first principle of “ius naturale.”  Later jurists understood the connection.  As the great lawyer pope of the thirteenth century, Pope Innocent IV wrote that the property rights of the first occupant of property was protected by the command to “do unto others as you would wish others would do unto you” (Tierney 2002: 401)

The early jurists did not think that all rights were natural rights.   Gratian began his Decretum by dividing all law into two categories, natural law and long-standing and accepted customs (mores).  Consequently, the canonists who used the Decretum in their classrooms for the next four centuries were forced to consider the equivocal meanings of “ius naturale.”  Like his Roman predecessors, Gratian lived in a thought world  in which “ius” was understood primarily as an objective law; however, by the second half of the twelfth century canonists were commonly using “ius” to mean “right.” 

The canonist Rufinus (ca. 1160) was an important figure in developing the language of natural rights.  While commenting on Gratian’s “ius naturale,” he observed that “Natural ‘ius’ is a certain force instilled in every human creature by nature to do good and avoid the opposite.”  This definition of “ius naturale” became a commonplace (Tierney 1997: 62). 

By the year 1300, the jurists of the Ius commune had developed a sturdy language of rights and created  a  number of rights derived from natural law.   During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedural rights ― especially the rights of defendants ― as being rooted in natural, not positive, law.  By placing these rights squarely within the framework of  natural law, the jurists could and did argue that these rights could not be taken away by the human prince.  The prince had no jurisdiction over rights based on natural law; consequently these rights were inalienable (Pennington 1993 and Reid 2004). 

The jurists’ analysis of the rights of the poor represented another strand in rights thinking, what modern scholars have called passive rights (Reid 1991: 58-59).  Gratian’s Decretum contained a number of texts that contained trenchant admonitions to provide for the poor.  Perhaps the most poignant of these passages was one taken from the writing of Rufinus of Aquileia (ca. 344-ca. 410) that masqueraded as the words of Ambrose in Gratian (Weigand 1967: 308):

No one may call his own what is common, of which if he takes more than he needs, it is taken with violence.

Rufinus’ words echo across the centuries  and were paraphrased by Proudhon's “Property is Theft.”

Rufinus’ words do not directly lead to the idea that the poor have a right to subsistence, but the twelfth-century jurists had the vocabulary and the inclination to do so.  Huguccio was, again, a key figure.  He declared that by natural law we should keep what is necessary and distribute what is left to the needy.  This  is particularly true in times of famine and great need.  Later jurists expanded Huguccio’s thought and formulated a “right” of the poor to steal or to take food in times of need.  As the foremost jurist of the thirteenth century, Hostiensis, put it: “One who suffers the need of hunger seems to use his right rather than to plan a theft.”  The natural rights of the poor to subsistence became a commonplace of medieval and early modern thought.  At the end of the seventeenth century, John Locke could rehearse this idea that was by then five centuries old: “He has given his Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him when his pressing Want calls for it.”  But Locke could also write that “Charity gives every man a Title to so much out of another’s plenty, as will keep him from extream want” (Texts cited in Tierney 1997: 71-76).     The jurists decided that the theft of foodstuff and clothing in times of great need was not a criminal act or even a sin.  This right was rejected by the Common Law systems but is still to be found in most Civil Law systems.

The historical significance of this jurisprudential development is that scholars who have discovered the language of natural rights only in the philosophical writings of fourteenth and fifteenth century philosophers, most frequently in the work of William Ockham or Jean Gerson, have overlooked the importance of twelfth-century jurisprudence in shaping Western thought.  Tierney’s arguments that the twelfth- and thirteenth-century jurists shaped the language of rights and prepared the way for rights thinking among theologians and jurists have generated a broad range of responses.  The reactions of scholars are far too complex to be summarized here.  Some have agreed with Tierney that the twelfth- and thirteenth-century jurists produced a jurisprudence preparatory for natural rights.  Others have argued that natural rights or what are today called subjective rights or human rights never existed in the minds of the medieval theologians and jurists.  They have maintained that the jurists and theologians thought only in terms of rights granted by natural law (as today’s legal positivists would claim that all rights are derived from positive law) and did not think of them as subjective rights inhering in individual human beings.  They think that the mandates and commands of natural law vitiated any possibility that natural subjective rights could exist (see the trenchant comments and analysis of Wolterstorff 2008: 30-43). 

One example may illustrate the problem of interpreting the thought of the jurists when they invoked “ius naturale.”  During the late Middle Ages the jurists created an absolute right of a defendant to a public trial, what today we call due process.  Included in this right was the right to be cited, to have a trial in a public court, to hear the evidence and its source, to present witnesses, and to have a sentence rendered publicly.  When the jurists discussed these absolute rights of due process, they always asserted that this right was based on “ius naturale.”   Consequently, even the pope or the emperor could not take away these rights.  When Johannes Monachus (ca. 1300) wrote that “a summons is ‘de iure naturali’ and that even the pope may not bring suit against a defendant without a summons” was he thinking “natural right” or “natural law?”  Or both? (This texts and others in Pennington 1993: 160-164).  We will never know.  We can, however, concur with Tierney that such language and thought prepared the way for natural rights.  Others have argued that for the most part medieval jurists thought of natural rights as “were based upon a purportedly objective assessment of the teachings of natural law and the Christian religion. That is obviously much less true of the natural human rights found in modern law” (Helmholz 2003: 324-325)

Other scholars have argued that only much later, when thinkers like Hobbes rejected the idea of natural law as a set of commands and embraced the idea of natural rights, could the idea of modern rights emerge; rights are a modern invention and represent a break with the past (e.g. illustrating these differing and conflicting conclusions, Villey 1975,  Tuck 1979, Fortin 1996, Finnis 1998,   Helmholz 2003; see the fine summary of the literature in Tierney 1997: 1-9, with further reflections in Tierney 2002 and Oakley 2005: 87-109, Wolterstorff 2008: 1-64).  The complexity of modern opinion is daunting.  Consequently, even a brief sketch of the range of scholarly interpretations of medieval conceptions of “ius naturale” would severely tax the  allotted scope of this essay.  Even more difficult would be a sure statement about when we can first see a definition of “ius” that is exactly what we mean by rights today.  At this point one can only wait for a communis opinio to emerge after the debate has run its course.

Before Tierney’s work there was already a growing conviction, if not a consensus, among some scholars that the origins of rights thinking began in the later Middle Ages.  According to this line of thought, the bridge to the modern world of rights extends from the theologians William Ockham and Jean Gerson in the fourteenth and fifteenth centuries to the great jurist, Hugo Grotius in the seventeenth, with a collection of Spanish jurists and theologians, the “Second Scholastics,” in between.  William Ockham is undoubtedly the most important but the most difficult thinker in this list.  Ockham dealt with “ius naturale” in a series of polemical works that he wrote during the great dispute with Pope John XXII.  His language and his interpretation of “ius naturale” rested primarily on the writings of the jurists (in contrast to Thomas Aquinas).    As part of his attack on papal authority he developed a clear recognition that the people had rights that limited ecclesiastical and secular authority.  Although he hedged his generalization with the admission that Ockham’s rights were not the same as those of modern rights theorists, Tierney put forward the possibility that Ockham “created, perhaps for the first time, an ecclesiology and political theory founded on the concept of natural rights” (Tierney 1997: 170-194).                                                                                                                                                                                                                                                                                                                              

The last historical context that was crucial for the development of a tradition of “rights thinking” in the European tradition was the discovery of the New World and new peoples in the sixteenth century.  If a number of Spanish thinkers had not been confronted by this new set of problems, “rights” could have withered on the vine.  Certainly the sixteenth and seventeenth centuries were not great ages for human freedom in other areas.  The doctrine of absolutism became acceptable coin of political discourse, religious toleration reached abysmal depths never before seen, censorship became a tool of European secular and religious regimes to control thought, witches were discovered in every crack and crevice, Puritanism became the first and most important virtue that was added to the other seven: this list could be extended almost endlessly.  Yet the discovery of lands populated with pagan peoples sparked a debate about their rights.  Some of the best minds of the sixteenth century asked hard questions: Could native peoples have a just title to their lands?  Could their lands be taken from them? Could they be enslaved?  American courts have only begun to grapple with these issues in the past twenty-five years, and the general public has only just begun to recognize the great injustice done to the rights of native Americans.

Francisco de Vitoria († 1546) studied at Paris and established a school at Salamanca during the first half of the fifteenth century.  While Spanish conquistadors plundered the New World, Vitoria explored the moral and legal ramifications of their conquests.  The key issue was dominium or lordship, but which could also mean “right.”  Could the American natives justly possess property and rightfully rule over their lands?  The legal tradition was mixed.  In the thirteenth century, two jurists took opposing sides.  Pope Innocent IV, who wrote a massive commentary on canon law (ca. 1240), concluded that Infidels did possess just dominium, and their lands could not be taken from them without cause.  Their rights could only be taken away if they sinned against natural or divine law.  The greatest canonist of the century, Hostiensis, concurred with Innocent in his early work but around 1270 changed his mind.  Perhaps swept away by the crusading  enthusiasm of  Pope Gregory X, he concluded that since the birth of Christ, just dominium existed only within the confines of the Christian church.  No one outside the church could exercise dominium legitimately.  During the fourteenth and fifteenth centuries, jurists embraced either Innocent’s or Hostiensis’ opinion but without, one feels, great passion, for the problem had no real immediacy. 

Vitoria was a bloodless academic who dissected the meanings of rights in his laboratory.  Bartolomé de Las Casas labored among the Indians in the New World for twenty years.  He saw the atrocities committed by the Spanish.  He preached the brotherhood of man and the natural rights of all humans and argued vehemently that the Indians had a natural right to liberty, could exercise dominium, and must consent to any claim of Europeans to rule over them.  Francisco Suárez († 1614) developed the vocabulary of “ius” and “ius naturale” as “right” and “natural right” even further in his great work De legibus (Tierney 1997: 301-315). ^[5]

Manuel González Téllez († 1649) wrote one of the last extended canonistic discussions of “ius naturale” that was framed by the medieval jurisprudential tradition in the preface to his commentary on the Decretals of Gregory IX.  Téllez used and cited Thomas Aquinas extensively.  What is particularly striking is that Téllez wrote about natural law primarily in terms of  “praecepta (precepts or maxims)” not in terms of “leges.”  The most fundamental of these norms, wrote Téllez, was that human beings should and can distinguish between good and evil.  For the remainder of these norms he turned to the jurisprudential tradition.  Human beings should live honestly and should not injure their neighbors.  Lastly, everyone should give each person his ius in contracts, restitutions, and payments of debts, whose rendering may be assigned to reason and natural equity.  All of these norms, Téllez concluded by turning back to Gratian’s dictum at the beginning of the Decretum, can be found in the divine wisdom of Christ’s admonition found in Matthew, chapter 7, “Do unto others as you would have others do unto you.”     Téllez recognized that “ius naturale” could be a set of divine “leges” and commands but emphasized the principles that helped human beings to recognize rights (Pennington 2008: 588-589).

The main conduit though which the concept of natural rights flowed into modern political thought was the Dutch Protestant jurist, Hugo Grotius († 1645).  In De jure belli, Grotius grappled with the meanings of right (“ius”) in all of its multifarious meanings.  The major theme of his book on the law of war was to prove that “just wars were fought to defend or assert rights or to punish violations of them.”  He explored all the meanings of “ius” and defined it as “a moral quality of a person, enabling him to have or to do something justly” (Tierney 1997: 316-342 at 325). Grotius borrowed his definitions of right from the sixteenth-century Spanish theologians, but because of his Protestantism and that of his readers, he hid his sources in a thicket of classical quotations.  Grotius has often been called the “Father of International Law.”   He also might be called the “Modern Father of Natural Rights,” for Grotius influenced “all the major rights theorists of the next century, Selden and Hobbes and Locke in England, Pufendorf and Leibniz and Thomasius in Germany, Domat and Pothier in France” (Tierney 1997:  340).

When medieval and early modern jurists and theologians thought of rights, they thought of “ius naturale.”  Their analysis of that phrase over centuries is the origin of our rights thinking today.  They recognized “ius naturale” as “leges naturalia” but also as a set of precepts, rights, and duties encapsulated in the other meanings attributed to “ius” from the ancient Roman jurists to Grotius.   When they define natural law and natural rights today, many thinkers have embraced positivistic sets of rules, prohibitions, and norms, shaped and fashioned according to each of their belief systems, that are and always have been the defining feature of “lex.”  Human beings may never agree on universal rules of a “lex naturalis,” but they might agree on universal precepts that shape the penumbra of rights surrounding  “ius naturale.”

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