Last time I began exploring the history of the concept of rights (as in human or civil rights), through the works of Michel Villey and Brian Tierney. I noted that the concept as we now understand it has its roots in Latin ius, which had a meaning more like law and one’s proper share than like rights. How did this concept become the concept of individual rights that we now have today?
Villey lays the blame (and for him it is blame) on one key thinker, William of Ockham (or Occam). Most people know Ockham primarily for his “razor”: the principle that one should not postulate more existent entities than is necessary for explanation. Ockham’s razor is attached to the wider nominalist metaphysics of his thought, denying that universals (like Plato’s Forms) have real existence. And for Villey, this metaphysical innovation is at the root of Ockham’s legal innovation: subjective individual rights.
That is, for Ockham a ius is a legal power or a power of licence (potestas licita) – something belonging to a given human individual, conceptually independent of any related obligations. Potestas, which in Roman times had been a simple description with no moral significance, is in Ockham granted the morally significant title of ius; individual capabilities now become something deserving of moral respect as they had not before.
Many previous medieval thinkers had been realists rather than nominalists; to name a concept, a universal, was to name something really existing in the world. Most of us are nominalists today, just as most of us believe in individual rights; it is striking to us when we encounter a more realist thinker, as when a Hegel claims that concepts (Begriffe) are fundamental to reality. But for Villey, both nominalism and individual rights were Ockham’s creations, and the two were closely linked. How? In Ockham’s nominalist metaphysics, particular beings had an existence more real than universal concepts. That point implied that individual human beings were more fundamental than humanity as a whole, individual men logically prior to Man. And so now for Ockham ius (law/rights, droit, Recht) would inhere in those human individuals, not in the human race. That is why with Ockham, for the first time, we have something like rights in the modern sense. Ockham, on this account, stands as creating a radical break, metaphysically and politically, between what was known even then as the via antiqua and the via moderna – between the ways of the ancients and the ways of the moderns, between the medieval and modern worlds.
Tierney disputes Villey’s idea of a radical break. His The Idea of Natural Rights argues persuasively that the development of the idea of individual rights was a more gradual one than Villey implies. The story is too long to tell here, but Tierney describes a slow journey from the 12th-century law textbook the Decretum of Gratian, which recognized no individual rights, to Hugo Grotius, who clearly did – with conceptual innovations at many stops along the way before and after Ockham, from Henry of Ghent to Francisco Suárez. Each thinker along the way makes subtle innovations to the concept of ius; there is no radical break with Ockham.
Does Tierney’s critique of Villey’s history matter? Tierney agrees with Villey’s key point that rights as we understand them are a new idea, not one that goes back to Roman antiquity. So does it matter that the idea of rights arose slowly over centuries, rather than suddenly with Ockham? I think it does. It affects the larger story told by Villey and even more so by Alasdair MacIntyre: the story that individual rights are a modern phenomenon, an innovative break with the medieval world. They are not. Rights have deep roots in premodern culture – specifically and perhaps most importantly, in the very same medieval Catholic culture that Villey and MacIntyre both clearly admire. They are not a weird modern aberration; they are the result of a slow process of reflection on the medieval world, emerging from and within that world, as it slowly changed into the modern.
And yet there remains a bigger story that Tierney, Villey and MacIntyre all agree on: rights are not universal. At least, they are not universally recognized. They go back to the late Middle Ages in the West, and are a more recent transplant elsewhere. And that point demands some caution from us when we reflect on them constructively now.
Tierney does note in passing that a few authors suggest that Romans used terms for rights and powers (ius and dominium) more interchangeably than Villey’s story would suggest. But suppose even that we take up the most radical implications of that point (as Tierney does not); suppose we take the least charitable approach to Villey, and claim the Romans did use ius to describe rights as we now understand them. There’s still the key point that most other cultures didn’t. The Sanskrit ṛta and dharma prescribe duties more than permissions. Sanskrit adhikāra is sometimes rendered with “right”, as in the Bhagavad Gītā when Krishna is often translated to say “you have a right (adhikāra) to your action alone, not to its fruits”. But the meaning of adhikāra is “qualification”: it has to do with the prerequisites for a permission, more than the permission itself. (It certainly isn’t something universally human!) Nor am I aware of any word that can be translated with “rights” in ancient Greek or Chinese. And the Romans were a large, technologically innovative (for the time) and economically powerful state that allowed their citizens significant licence. In that respect they are more like the modern United States than have been most societies in human history.
So while the concept of rights may not be a modern invention, it is still a Western one, whether medieval or Roman. And this descriptive historical point does shed some doubt on the universal normative status of rights, as MacIntyre had intended his overstated history to do. If rights were not in fact recognized in most human societies, the claim that they should be respected universally in every society becomes, at the least, less obvious. If rights are really a universal property of human beings, how is it that so few humans ever discovered this property?
MacIntyre’s answer to that question is that “there are no such rights, and belief in them is one with belief in witches and in unicorns.” Ockham and others who believed in their existence were simply wrong and deluded. I am not prepared to go that far. But I do think due caution is required when we speak of rights, and next time I will discuss what such caution should involve.