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Alasdair MacIntyre, Bhagavad Gītā, Brian Tierney, Gratian, Hugo Grotius, law, Michel Villey, rights, William of Ockham
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.
There is a long and proud tradition of laying blame at Ockham’s door (e.g. Weaver’s Ideas Have Consequences); as a platonist of a sort, I am fairly sympathetic, but such “it all went wrong when…” stories tend to be more provocative than precise. I like provocation (I am of course not a Nietzschean, but I like how his maxim seems to be, if it’s worth saying, it’s worth saying strongly); provocation spurs thought and gives it traction. But we also need moderatio and plain old scholarly caution.
The notion that “rights”, and the idea of the “individual” who would “have” them, is a local cultural phenomenon (whatever its provenance) is of deeper importance than just an exhibit in the standard cultural relativist casebook. Hegelians (and not just they) might argue that the emergence of such concepts and “forms of life” (to deploy Wittgenstein’s phrase in a non-Wittgenstinian way) is an index of the playing-out of the grammar of history. I often wonder, is there a way to make use of what this gets right (I think it does get something right) without slipping into a superstitious prognostication, or worse, a triumphalism of the West?
Fascinating. I had heard of Weaver as an American conservative but had no idea he blamed Ockham for society’s ills. It’s surprising to me because I think of Ockham-bashing as a Catholic thing. Luther’s teacher Gabriel Biel was an Ockhamite, and I don’t think it’s too hard to draw connections between the kind of individualism typically associated with Ockham’s nominalism, on one hand, and the sociological facts about Protestantism identified by Durkheim and Weber on the other.
I agree that there is something to be said for the idea of rights as history’s unfolding – but that the problem is that it is the unfolding of Western history. I think there needs to be a lot more serious intellectual attention paid to modern Asian political thinkers, from Mou Zongsan and Motoori Norinaga through Gandhi and Mao to Nehru and M.N. Roy, to see where Western-derived political concepts like rights fit into their worldviews. How does the transition from precolonial to postcolonial work in practice? We’ve too long treated it as a radical discontinuity, rather than a process of ongoing adaptation (to an admittedly very different world).
I think Weaver’s general point (minus the animus) is sound — nominalism did a real number on the west; but Tierney is clearly right that these trends emerge slowly; and a name like Occam is more of a pin in the conceptual map marking an important crossroads. John Milbank and the Radical Orthodoxy crowd in general tend to blame Duns Scotus; Walter Ong thought the whole thing went haywire with Ramus. While the protestant-Catholic divide is one of the places where this argument flares up, the tectonic forces are deeper.
Emphatically agree with your last point. Articulating a re-contextualized, nonEurocentric dialectic is an ambitious but very worthwhile project. To my inexpert eye, Mou’s philosophy especially gives many resources to draw from in such an effort. I see the various colonial upheavals as facets of the “birth of the modern” (and post-M) in general, and it would seem that this is a flux we are in the midst of right now — so the work is bound to be both very difficult, and very urgent, if we do not want to merely be swept along. I’m not really a full-blown historicist, but for the sake of argument — What are “rights,” “individuals,” “communities,” and so on going to mean in the practices of the “next” era? Mou (and others — Aurobindo comes to mind) help us to step back and see the unfolding of Geist as real, but in terms that do not tell the story as if the spirit was continually blowing in a westerly direction, and allow us to speculate informedly. Of course of deeper importance still is the perennial question of how to accomplish philosophy (as opposed to futurology, sociology, general making-do, etc) in the emerging age.
Interesting as always, and I agree with the general tone. It’s hard to resist pointing out that if the world-spirit continues to blow in a westerly direction, and if it currently resides in North America (as Hegel predicted and which I think is now inarguable)… then surely we should expect it soon enough to continue blowing, and make its landfall across the Pacific back in Japan and China?
I see a few straws in the wind that that might indicate that is actually starting to happen. Most notably there’s the massive enrollment in Michael Puett’s course at Harvard ( http://www.theatlantic.com/education/archive/2013/10/why-are-hundreds-of-harvard-students-studying-ancient-chinese-philosophy/280356/ ) – a phenomenon that has just started, well after I left the place.
It is always interesting to me, Amod, when you really show your Hegelian colors. Yes, perhaps the Weltgeist, like Columbus, goes west to reach east.
I really only know about Mou Zongsan what I read in the 2ndary lit, as so little has been translated (though upon checking, I see more than I had thought, which excites me.) But one thing I like about Mou’s account, and why I underlined it here, is that he seems to apply a kind of dialectic to the whole range of Chinese philosophy, just as Hegel did in Europe, to unpack its own inner logic. This exchange here has re-fired my interest in 20th and 21st-c Confucianism; I’m going to read further. It may not contribute much to the discussion of rights in the West (and so it may be veering off-topic for this post) but it might point us more to the next looming task: the integration of East and West (a phrase I hope I can use without causing anti-globalists to cringe.)
I think I had heard of Michael Puett’s class’s popularity, but hadn’t seen this story. That is an interesting sign, and seems (if one trusts the Atlantic) to go a bit deeper than the average multicultural appropriation. Thanks.
I suppose I should add that I don’t really believe there’s any necessity in the world spirit moving from east to west. To the extent that I believe in such an idea, 1) at least until the past hundred years I think it inarguable that there were multiple world-spirits, with Chinese and Indian ones having their own internal movement independent of Europe and the Mediterranean; and 2) a physical east-west movement even in the Western spirit is necessarily coincidental. Anything beyond that is a bizarre geographic determinism that I doubt Hegel himself even believed – I suspect (though I could be wrong) that the east-west movement is like the owl of Minerva, a convenient metaphorical phrasing. But if there were such a movement – I have no idea how one could explain such a thing – then its wrapping around would seem quite plausible.
As for Puett, yes, I think that course would have to be far deeper than typical pop multiculturalism. I have had relatively few interactions with the man but was impressed by his brilliance when I did. There’s no doubt he’s a serious scholar.
Hi Amod!
I’m curious what you think about this in other cases: Suppose we made a similar historical case for concepts like electron, radioactivity, gene, quasar, or germ being Western and arising in a particular historical context.
Do you think that sheds doubt on where these things are universal? Does it mean that claims about them are less likely to be true?
Excellent question, Nic. This takes us into the philosophy of science, which is a field I’d like to know more about than I do. I do think science has a normative weight that goes beyond other ways of establishing knowledge. There is a difference between the history of “rights” as a concept and the history of the concept that you mention. It is not about the Western context, for that’s exactly where they all arose. Rather it’s about the fact that the scientific concepts arose out of empirical observation, typically the disciplined empirical observation that is controlled experiment. As a result they are replicable; for any given scientific discipline, anyone with sufficient time and resources can be shown the empirical evidence that leads dialectically to that discipline’s first principles and the concepts that follow from them (and I think the concepts you list would fall into one or the other of these categories. That, combined with its demonstrated practical effectiveness, is why we give scientists a trust we typically don’t give to others. I don’t think the same is true of rights at all; while rights-talk is effective in its way, investigating it is more likely to lead us to suspicion of the man behind the curtain (Maritain being the obvious example). I think it matters also that its effectiveness is only on human action and not on the natural world, where the former has a reflexiveness the latter doesn’t; it is at best an upāya.
I am not sure if I would want to go all the way with him — and it isn’t clear to me that I always understand him — but it’s interesting that Bruno Latour has turned his attention to religion and law, after having first made his name pioneering “science studies”, ostensibly using ethnological fieldwork techniques to study how scientists do science (which made many suspect him of “not believing in Reality,” especially for saying things like “before Pasteur there were no microbes”). I don’t know whether he addresses “rights” per se, but he does examine precedent and interpretation and the way legal consensus emerges in a tradition. Looking around for a possible brief introduction that would lay out the methodological overlap in his science studies and legal studies, I found this. He does not identify the two fields or say that the constructivism at play is the same in each — rather the opposite — but he does insist that both are fields of various practices, and call into question any easy recourse to “fact” in either case.
I might also note the (mostly) rhetorical question I used above in speaking of rights: “If rights are really a universal property of human beings, how is it that so few humans ever discovered this property?” In the case of the concepts you describe, that question actually has a pretty easy answer. Discovering electrons or quasars requires sophisticated and expensive equipment that in turn requires a great deal of technological sophistication, to which the vast majority of humans have not had access. It is therefore not hard to say why most humans have not thought in terms of these properties in explaining the natural world. Could there be any comparable explanation for universal rights? I can’t see what it would be.
Thanks, Amod. I think I understand where you’re coming from much better now!
Can I ask a bit more about what you’re driving at exactly? Is it about whether everybody HAS some concept of ‘right’? Or whether ‘right’ would be USEFUL for everybody? Or whether the content of claims about rights can apply to everyone?
Or is it the sociological question of explaining why certain cultures have the concept and others don’t?
What I’m driving at is perhaps best expressed in the prelude to these posts, and to the post I’ll be doing next week that takes up from it constructively. You could probably describe my motivation in all these posts as a sort of small-p prāsaṅgika. There is a widely prevalent view according to which it’s clear that everybody has rights, it’s not too hard to determine what those rights are, and that that point is one of the key foundations for all political discourse. (I have heard liberal friends say, for example, that “if we get angrier at conservatives than they do at us, it’s probably because they’re advocating the violation of people’s rights and we’re not.”) I think this view is terribly misguided. It isn’t long before different sides are asserting competing rights (the woman’s right to an abortion vs. the fetus’s right to life) with no meaningful way to resolve the two (other than straight-up political combat).
Ah got it – that sounds interesting!
One thing that I get stuck on from the prelude is the move from having words to having concepts. I liked Stephen Angle’s example: I had the concept of the little plastic bit on the end of my shoelace long before I learned the word ‘aglet’. So I’m not sold on the idea that no word for X = no concept of X.
A friendlier thought: How do you feel about running the argument the other way too – Buddhist think ALL beings have kleshas, but very few cultures have a word for this concept. So Buddhist too must be wrong in claiming that kleshas are universal in the same way that Westerners are when they claim rights to be universal. (It doesn’t have to be klesha, pick your favorite normative concept from Buddhism – maybe there’s a better one to run that I’m not thinking of?).
One last thought: Sounds like one of the things floating around is whether or not there are irresolvable moral dilemmas (Like, maybe there really are rights and some of them conflict and when they do there’s no way to settle it) – perhaps not very satisfying, but that one way for someone who wants to keep rights around to go.
Well, there are also many cultures that *don’t* have the concept of an aglet, since they have neither plastic nor shoelaces. That’s the upshot of Villey’s argument in post I: the Romans did not assign moral status to permissions and abilities in the way the rights concept does. I can’t see that the Indians did either.
I think I see – I agree that Romans did not assign moral status since they probably lacked the concept. But I still don’t see why that says anything either way about the question of whether or not their acts in fact have moral status.
What, on your view, do you say about the Romans not allowing women to vote or hold office?
To oversimplify only a little: they were wrong and we are right. There are very good arguments that can be made for this point, very likely even on grounds that follow from the Romans’ own premises.
By contrast, the arguments that are typically made for the existence of rights qua rights are often not merely bad but nonexistent. That’s not to say there are no good arguments for rights. I think there can be – which is why I don’t go as far as Villey and MacIntyre myself. Next week I’ll say a bit about that. But I am suspicious of rights talk because so often it is about assertion (and typically aggressive, hostile assertion) rather than argument.
Since I have been reading along on this exchange between you two, I’ll chime in with a question — does it seem relevant that the question about women voting & holding office in Rome or in the modern west is a question about practices; whereas the question about “rights” is, well, not? (At least, not explicitly — I might argue that it reduces to such). Rather, to put it mildly tendentiously, it seems (at least overtly) to be about difficult-to-specify quasi-entities (“rights”); and although we can say this is mere shorthand for “how we do things,” the shorthand can be misleading when it is reified. I take it this is part of your prāsaṅgika project, Amod.
I’m not sure that I would say that. The issue seems to me to be more a matter of reasoning and argument. The case for women voting and holding office seems like a strong one that can be argued for from the presuppositions of just about any given society that involves voting and offices; the case for scientific concepts is based on an empirical replicability that is supposed to be available to people from any society given sufficient background education, and I think probably is. With rights, on the other hand, we have Maritain saying “we agree about the rights, on condition nobody asks us why.” Which is to say that, in the case of the UDHR at least, the reasons for thinking in terms of rights are flimsy; it’s a pragmatic compromise and nothing more. I don’t think that this issue of reasoning maps well onto practice/abstraction. If anything, it seems to me that one of the bigger problems with rights is we think of them in ways that are too practical, too much about putting our existing beliefs into practice and not enough about thinking about those beliefs.
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