But some see a confirmation of Villey’s theses in the fact that Leo Strauss, apparently not relying on Villey, develops a similar narrative of the replacement of classical natural law theory, based on the notion of law from which duties could be deduced, with modern natural law theory, based on the notion of subjective right, a turn he locates in Hobbes’s work (instead of Ockham). ...recently, Pierre Manent has defended a position similar to that of Villey and Strauss, insisting, like Strauss, on the opposition between the classical idea of natural law and the philosophy of human rights (see Manent 2018, 7–8), and the presupposition of the latter of the idea of an isolated individual as bearer of those rights, an idea that finds its best expression in the notion of state of nature (see Manent 2018, 8–11). This last point will be also defended by MacIntyre, as will be seen.
Abstract
The first Thomistic philosopher to critically engage with the notion of human rights was Michel Villey. Villey is arguably the most important French legal philosopher of the twentieth century. He began his career teaching Roman law, and then switched to legal philosophy. During his long tenure at the universities of Strasbourg and Paris, he reinvigorated the study of legal philosophy in France, directed the Archives de Philosophie du Droit, and left a number of disciples, not all of whom have followed their master’s controversial theses. After his death, his name was given to the most important Centre for legal philosophy in France, the Institut Michel-Villey pour la culture juridique et la philosophie du droit, at the Université Panthéon-Assas.
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Notes
- 1.
If the number of publications on one author is an index of importance, then Villey is certainly the most important legal philosopher of France in the twentieth century. About no other contemporary French legal philosopher has been written so much.
- 2.
A good overview of Villey’s importance and career can be seen in Arnaud 2016 and Brunori 2019. A general interpretation of Villey’s work is the short Rials 2000.
- 3.
There are, however, some reasons to think that he could have extended his critique to human rights as pretended moral rights. First, in Le droit et les droits de l’homme, he states a possible reply to his critique of human rights, a reply which would say “On répondra que les honnêtes gens ont des vues plus nobles et ne sont pas juristes. Les droits de l’homme ne sont pas ‘droits’ au sens du positivisme juridique, mais un idéal… Des optatifs, des projets d’action politique, de réforme de la societé, de bonnes intentions, des purposes” (Villey 2014, 12). However, he proceeds immediately to criticize human rights, apparently discarding them even if conceived as “ideals”.
A second reason is that in the Appendix to Le droit et les droits de l’homme he includes two declarations of human rights he finds paradigmatic: the French declaration of 1789 and the Universal Declaration of Human Rights of 1948. But the latter, as it is known, has no legally binding force, and therefore, human rights proclaimed there are no legal rights. Villey certainly knew that.
- 4.
Some of the themes had been advanced in Villey 1982, and will be repeated in Villey 1986.
- 5.
“Plus enviable, le sort des Européens. Il fonctionne une Cour de justice européenne ‘des droits de l’homme’, qui précise ces droits, les limite, et les adapte à nos actuelles conditions de vie. Ils en acquièrent un commencement de réalité. Mais il s’agit alors des droits des Européens” (Villey 1986, 196). Villey seems to imply here that so-called Human Rights Courts, when they adjudicate, are in fact legislating, not simply applying universal rules (human rights rules) which, because of their indeterminate nature, cannot yield any precise outcome.
- 6.
Bentham, in his classic critique of the Declaration of Human Rights of 1789, stresses also their contradictory and unreal nature: “Rights of man composed of a system of contradictions and impossibilities” (Bentham 2011, 331). For example, liberty is inconsistent with any other right “all rights are made at the expense of liberty” (Bentham 2011, 332). If property rights were taken seriously, “all taxes, for example, and all fines are void” (Bentham 2011, 333). Right to honor and freedom of speech are also contradictory: “the protectors of reputation on one side of him: the idolators of liberty on the other. Each with the rights of man in his mouth and the dagger of assassination in his hand”. (Bentham 2011, 359). And he knew only the brief French Declaration: he didn’t know contemporary declarations with their proliferation of rights.
However, as it is widely known, Bentham stresses especially what he perceives as two main faults of the French declaration: its anarchistic nature and its implicit claim to bind subsequent legislators. According to Bentham, by proclaiming the rights of men, and stating that the end of every political community is the preservation of these rights (art 2), the Declaration invites every citizen that believes that any statute threatens his rights, to revolt. “These are the words that speak daggers, if daggers can be spoken” (Bentham 2011, 326).
Villey also, in some passages, tends to connect belief in human rights with anarchy. For example, when he treats on Spanish Scholastics, he says that, even if they knew the concept of subjective right, “quant à déduire de la dignité infinie de la nature humaine les ‘droits’ de l’homme, ils n’y sont pas prêts, n’ayant pas le goût de l’anarchie” (Villey 2014, 130).
As it is also known, Bentham dismisses human rights also because, in his view, they presuppose belief in natural law, a law he deems nonexistent. In this aspect, Villey would not agree, since he believes in the existence of natural law.
It is interesting that, even if his critique echoes especially that of Bentham, it is Burke whom Villey seems to consider his intellectual predecessor. That is surprising since first, Burke never criticizes rights of man, as declared by the Declaration of 1789, because of their “unreal” or “contradictory” nature, but because he deems them to be abstract rights that do not take into consideration the specific historical circumstances necessary to make operative any political principle. That is not Villey’s critique. Secondly, it is not at all clear that Burke rejected any conception of natural rights, he sometimes defends, even in his Reflections on the Revolution in France, what he calls “real rights of men”. Third, Burke clearly knows and uses the concept of subjective right, that Villey so forcefully rejects.
- 7.
“Contre l’histoire positiviste, le temps est venu de redécouvrir la dépendance congénitale des sciences juridiques par rapport aux ontologies et représentations du monde inventées par des philosophes” (Villey 2003, 45).
- 8.
“Le concept du droit présuppose una pluralité de personnes entre lesquelles a lieu un partage de choses extérieures” (Villey 2014, 48).
- 9.
And this would suffice to differentiate Aristotle’s to dikaion from the modern conception of human rights: “Le to dikaion, précise Aristote, est une proportion—un analogon: effet d’un partage qui est proportionnel. Les déclarations des droits de l’homme promettent à tous identiquement la liberté, et le respect de la dignité” (Villey 2014, 49).
- 10.
That is still the case today, according to Villey, notwithstanding all the rhetoric of equal rights: “Les fonctions publiques ne sauraient être les mêmes pour tous, chaque Français ne peut être Président de la République. Il serait injuste et impossible de faire payer le même impôt aux pauvres et aux riches. Et l’égalité des richesses matérielles est une utopie” (Villey 2014, 50).
- 11.
Even if he admits that Aristotle was not their only philosophical source: “Il ne m’échappe pas que dans le cerveau de chaque juriste en particulier, résidait plutôt une mixture de diverses philosophies: les juristes romains n’étaient pas disciples du seul Aristote. Grotius n’est pas seulement subjugué par le mouvement de renaissance de la philosophie stoïcienne” (VIlley 2003, 45).
- 12.
It has to be noted that Villey had a very good knowledge of Roman Law, even if he was not one of the most eminent Roman Law scholars of his time. He started his academic career teaching Roman Law, and published, among other publications regarding the subject, an introduction to Roman law which is still used as the standard introductory text in French. See Villey 2012, first published in 1946 and subsequently the object of several reissues.
Many commentators have stressed the influence of Roman Law on Villey’s legal philosophy, sometimes asserting that the “impronta jurídico-romanista-privatista de su molde de pensamiento, condicionó fuertemente su recepción del pensamiento de Tomás de Aquino, y tuvo como consecuencia determinar toda una serie de caracteres de su filosofía jurídica” (Massini 2004, 89). Carlos Massini, writing also within the Thomistic tradition, in this article is critical of Villey’s positions. That doesn’t seem to have been always the case: in Massini 1975, he comments enthusiastically the work of the French philosopher, and it seems he even shares his criticism of human rights: see Massini 1975, VI. Over time, Massini has become one of the most important legal philosophers writing in the Thomistic tradition in Latin America trying to provide a philosophical defense and foundation of human rights.
- 13.
“manifestum est quod ius est obiectum iustitiae” (II-II q. 57 a 1 resp).
- 14.
“ consuetum est quod nomina a sui prima impositione detorqueantur ad alia significanda, sicut nomen medicinae impositum est primo ad significandum remedium quo praestatur informo ad sanandum, deinde tractum est ad significandum artem qua hoc fit. Ita etiam hoc nomen ius primo impositum est ad significandum ipsam rem iustam; postmodum autem derivatum est ad artem qua cognoscitur quid sit iustum; et ulterius ad significandum locum in quo ius redditur, sicut dicitur aliquis comparere in iure; et ulterius dicitur etiam ius quod redditur ab eo ad cuius officium pertinet iustituam facere, licet etiam id quod decernit sit iniquum” (ST II-II q. 57. a 1 ad 1).
- 15.
“sicut eorum quae per artem exterius fiunt quaedam ratio in mente artificis praexistit, quae dicitur regula artis; ita etiam illius operis iusti quod ratio determinat quaedam ratio praexistit in mente, quasi quaedem prudentiae regula. Et hoc si in scriptum redigatur, vocatur lex, est enim lex, secundum Isidorum, constitutio scripta. Et ideo lex non est ipsium ius, proprie loquendo, sed aliqualis ratio iuris” (ST II-II q. 57. ad 2).
- 16.
“La prétention de tirer un droit de la nature choque aujourd’hui profondément, parce que l’on déclare opposé à la logique élémentaire d’extraire, á partir de vérités portant sur le fait, sur ce qui existe, des connaisances sur le devoir-être; ou comme le ressassent nos néokantiens, d’extraire du Sein un Sollen” (Villey 2003, 191).
- 17.
It is interesting that, according to this seminal paper of 1969 -originally published in 1964-, some of the pretended human rights are not subjective rights in the strict definition here given, for example, so called social rights are not liberties. Villey recognizes that, at the same time that he also denies them legal nature: “toute une branche de l’ecole individualiste a curieusement prétendu déduire de la ‘nature de l’homme’ des droits à certains avantages qui ne sauraient s’analyser en possiblité d’agir: tels seraient le droit ‘au bonheur’, ou ‘a la santé’, ‘au travail’ ou ‘à la culture’…Mais, outre qu’on pourrait douter que ces nouveaux concepts méritent en bon langage d’être appelés droits (parce qu’ils répresentent plutôt des aspirations, des vocations de l’être humain et qu’il ne va pas sans danger de les confondre avec des droits), je ne vais pas qu’on puisse les nommer au sens propre des droits subjectifs” (Villey 1969a, 146). In his later work, notably in Le droit et les droits de l’homme, he tends to treat all pretended human rights as a subset of subjective rights.
- 18.
Cited in Villey 1969a, 166.
- 19.
All citations in Villey 1969a, 166.
- 20.
One could say that Villey’s critique of human rights echoes the critique of natural law made by some prominent legal positivists like Hans Kelsen and Alf Ross. Both show how the notion of natural law has been used to justify very different political programs, and Alf Ross goes even so far as to call natural law “a harlot”. But they do not simply point to that fact in order to undermine the belief in natural law. They also say that this feature of natural law is the expected result of it being based on the belief on an objective morality, a belief they find epistemologically unwarranted. See, for instance Kelsen 1949, specially 494–501, stressing the different political doctrines associated with natural law theory over time, and Ross 2004, 227–254, and 268–288, both of which are accompanied by their more fundamental epistemological criticisms of natural law theory.
What is original in Villey is that he uses against human rights the same strategy that positivists use against natural law theory: he, as they, stresses how they have been used to justify many different mutually incompatible legal and political outcomes, which as a matter of fact is as true as the fact that natural law has been also used to justify many different legal and political outcomes, the latter fact being repeatedly stressed in legal theory, the former hardly so.
- 21.
Indeed, he was more clearly a nominalist than Ockham. In Hobbes’s case there is no question that there is universality only in names and not also in concepts.
- 22.
Leviathan, XIV, 72.
- 23.
Villey recognizes also that, according to Hobbes, individuals retain some portion of their original natural right in the political community, namely, the natural liberty to do everything that is not forbidden by law. See Villey 1969b, 201.
- 24.
Second Treatise of Government, chapter 5, paragraphs 25 and ff.
- 25.
“Je passe sur le caractère sophistiqué et spécieux de la démonstration” (Villey 2014, 148).
- 26.
“Ils n’ont recours au contrat social que pour instituer une police, une force politique, dont le rôle sera d’assurer leurs propriétés” (Villey 2014, 149).
- 27.
“Mais attention! Il faut choisir: ou bien des uns ou bien des autres. On n’a jamais vu dans l’histoire que les droits de l’homme fussent exercés au profit de tous. L’ennui avec les droits de l’homme est que nul ne saurait en jouer qu’au détriment de certains hommes” (Villey 2014, 153).
- 28.
In Villey 1986 he is more rhetorical against human rights: he calls them “a religion”, with its “foundational myths”, “chapels”, “mysteries”, “celebrations” and “apologists”.
- 29.
This is an important argument in order to understand that Villey’s critique to human rights is directed against such rights understood as legal rights, not merely moral ones. He finds no problem with the use of the ancient notion of subjective right, confined to literary texts and vulgar language.
- 30.
A similar qualification has to be made regarding the role played by Aquinas in this narrative. Even if he clings clearly to the classical notion of law, some of his other legal doctrines anticipate, according to Villey, modern law, for example, “il fournit le nihil obstat de la theologie et ses fondements philosophiques à la renaissance du droit romain” (Villey 2003, 194); he restores “la notion stricte de la proprieté privée qui sera l’une des colonnes du systeme juridique moderne” (Villey 2003, 195), and he stressed forcefully the need of statute-law as a source of law (See Villey 2003, 196–199). Moreover, the modern Natural Law School retained the Thomistic idea of the existence of a natural law, even if differently founded and conceived, and this modern notion of natural law was the background of modern declarations of the right of man: “l’ensemble de l’opinion, jusqu’à la fin de l’Ancien Régime, a toujours conservé sa foi au droit naturel, bien que peu à peu corrompu, vidé du plus pur de sa substance. Autrement nous n’aurions connu ni les déclarations française ou américaine des droits de l’homme et du citoyen, ni les traités systématiques de droit naturel, ni l’immense effort de la doctrine romanistique auxquels est dû notre Code civil” (Villey 2003, 195). He concludes that “le droit moderne ne s’est pas seulement constitué contre saint Thomas, mais à partir de saint Thomas” (Villey 2003, 201).
In general, it has to be warned that the exposition of Villey’s narrative of legal thought here made may be misleading and rough, since it seems to imply that the history of legal thought, according to Villey, had only a few important actors (Aristotle, Aquinas, Ockham, Hobbes), with the rest playing only very minor roles, and that it can be neatly divided into the classical period and the modern one by a Copernican moment. Sometimes he does certainly suggest that. Most notably in his polemical book on human rights, Le droit et les droits de l’homme, and in other articles.
But, other times his story is much more nuanced. A reading of La formation de la pénsee juridique moderne would show that Villey’s story is more nuanced there, takes into account the role played by many more actors, and shows how certain modern positions were already prefigured in classical times. Villey had a very good knowledge of many legal thinkers, like the Spanish Scholastics, the French Humanists, the Protestant jurists, etc. So, in the final analysis, Villey’s narrative is roughly the one expounded in the text, and this rough narrative is the one commented by other scholars and the one that has found resonance in legal thought. A more detailed exposition of Villey’s narrative should, to do him justice, also expound more clearly his interpretation of the Spanish Scholastics, which he knew well, because the passage cited in note 6 seems on the surface to imply a rude ignorance of Spanish Scholastics -it is a commonplace that they knew and defended the notion of natural rights-, which is not the case: even without being an expert in the Spanish Scholastics, he knew them well. See Villey 2003, 326–379, on Vitoria and Suárez.
- 31.
See, for instance, the Preamble of the Universal Declaration of Human Rights: “…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
- 32.
“Il serait gratuit d’imputer à la philosophie clasique une prétendue méconaissance de ce que vous nommez ‘dignité de l’Homme’“ (Villey 2014, 82); “les penseurs grecs avaient coutume de postuler un ordre dans le monde, d’y reconnaître une hiérarchie de genres et d’espèces, où l’homme l’emporte en dignité en tant que seul pourvu de logos, seul capable de se conduire en vertu d’un choix réfléchi; et ceci dépasse le sens sartrien du mot liberté” (Villey 2014, 83). He even recognizes the “dignity” of the worker, denying that it implies any rights: “De la dignité du travailleur, ‘sujet’ du travail, une récente encyclique infére ses ‘droits’ à la gréve, au syndicat, au ‘juste salaire’! A moins que ces mots ne soient vides de sens, je tiens que les ‘droits des travailleurs’ ne sauraient se comprendre qu’en rapport aux droits des patrons, et compte tenu de la richesse totale du groupe” (Villey 2014, 97). The encyclical mentioned here is certainly John Paul II’s Laborem Exercens. In a paper published later, he also denied the existence of such a right to strike: “Si j’ai bien compris l’encyclique Laborem exercens, Jean-Paul II commence par poser la dignité du travailleur, dont il a déduit son ‘droit a la grève’. Raisonemment trop court. Il fallait regarder aux besoins d’autrui. Si votre petite fille est malade, dites-moi, quelle est votre opinion sur le droit de grève des médecins?” (Villey 1986, 198).
Famously, Villey dedicated Le droit et les droits de l’homme to John Paul II, “A JEAN PAUL II, filialement ces quelques réflexions suscitées par son discours sur les Droits de l’Homme” (Villey 2014, 5). Villey, a Catholic himself, was fiercely critical of the assumption of human rights doctrine by the Catholic Church. We will see the same critique of this assumption by Alasdair MacIntyre.
- 33.
As Brett says, “For Villey, the universal equality, the identical liberty and dignity of all human beings, is a moral proposition. But it has nothing to do with droit, right, the field of which is external goods that must be parcelled out in shares that are precisely unequal” (Brett 2015, 85).
- 34.
See also, “Bien sûr, je n’irai pas reprocher aux dissidents de l’URSS de tabler sur les droits de l’homme, ils ne peuvent mener leur combat qu’avec les moyens linguistiques du bord; ils ont bien raison d’invoquer le traité de Helsinki” (Villey 2014, 17).
- 35.
“Tout excès engendre son contraire… Au positivisme juridique il fut besoin d’un antidote” (Villey 2014, 9).
- 36.
But some see a confirmation of Villey’s theses in the fact that Leo Strauss, apparently not relying on Villey, develops a similar narrative of the replacement of classical natural law theory, based on the notion of law from which duties could be deduced, with modern natural law theory, based on the notion of subjective right, a turn he locates in Hobbes’s work (instead of Ockham). See Strauss 1965, chapter V. For example, “The premodern natural law doctrines taught the duties of man; if they paid any attention at all to his rights, they conceived of them as essentially derivative from his duties. As has frequently been observed, in the course of the seventeenth and eighteenth centuries a much greater emphasis was put on rights than ever had been done before. One may speak of a shift of emphasis from natural duties to natural rights” (Strauss 1965, pos. 2501).
The connection between Michel Villey and Leo Strauss has been specially made by Ferry and Renaut, see 1985, 43–69 and ff. Oakley has also related Villey’s position with that of Strauss, see Oakley 2005, 95. Oakley rejects Villey’s theses regarding the absence of subjective right in Aquinas, the role of Ockham in the rise of subjective right, and the possible connection between nominalism and legal individualism. See Oakley 2005, 95–100.
More recently, Pierre Manent has defended a position similar to that of Villey and Strauss, insisting, like Strauss, on the opposition between the classical idea of natural law and the philosophy of human rights (see Manent 2018, 7–8), and the presupposition of the latter of the idea of an isolated individual as bearer of those rights, an idea that finds its best expression in the notion of state of nature (see Manent 2018, 8–11). This last point will be also defended by MacIntyre, as will be seen.
- 37.
See Miller 1995, 111–117. Miller asserts that Aristotle recognizes the existence of the four types of rights analyzed by Hohfeld. He goes so far even as to assert that, in some cases, to dikaion in Aristotle means a claim-right. See also Miller 1996. Simon Weber defends the existence of natural rights in Aristotle, but he says that they are to be understood as natural rights of certain groups, and not universal natural rights: “Von einer universalistischen Konzeption natürlicher Rechte bei Aristoteles ist aufgrund dieser Aussagen jedenfalls nicht auszugehen, sondern höchstens von einer partikularistischen” (Weber 2015, 26). However, the fact that, as Weber says, Aristotle excluded some groups of people from the subjects of those rights, would lead rather to the conclusion that in Aristotle there are no human rights. However, Weber’s thesis would show that Aristotle knew the concept of subjective right. Weber recognizes that in Aristotle there is no word for “right”, to dikaion meaning “das Faire oder Angemessene mit Blick auf eine bestimmte objektive Gerechtigkeitskonstellation zwischen zwei oder mehreren Parteien” (Weber 2015, 32), but he follows Finnis in the assertion that the subjective sense of “right” is implicit in the objective (Weber 2015, 33). Christoph Horn says that Aristotle knew the concept of natural rights, but these rights played no central role in his political philosophy, and Aristotle differs from modern thinkers in not basing natural rights on human dignity, a concept he didn’t know (Horn 2005). Richard Kraut thinks that it may be the case that Aristotle knew the concept of rights, but thinks they play no important role in his philosophy (Kraut 1996). Similarly, John Cooper thinks Aristotle knew the concept of right, but this concept played not as central a role in his philosophy as it plays in contemporary political philosophy (see Cooper 1996). See Weber 2015, 19–38, for a bibliographical discussion of the authors defending and denying the existence of rights, including natural rights, in Aristotle. All of these authors focus especially on the analysis of Aristotle’s Politics, a text Villey seems to neglect in his own analysis of Aristotle, focusing on the Nicomachean Ethics.
- 38.
See, for example, Thomas 1985, who defends against Villey the existence of the notion of subjective right in Roman Law and, also against Villey, dismisses the use of natural law by Roman jurists. But the eminent Spanish Roman Law scholar, Álvaro d’Ors, clings to Villey’s position. The academic discussion on Villey’s thesis by Roman Law scholars is exposed in Rampazzo 2007, with much bibliography.
It has to be stressed also that Villey was not the first to assert the absence of the notion of subjective rights in Roman Law. The thesis is at least as old as Henri Sumner Maine’s Dissertations on Early Law and Customs (1883). See Maine 1883, 365–366. See also Gewirth 1978, 372, n. 19, who cites, among Villey, some other Roman Law scholars writing in the same era.
- 39.
Finnis 2002. Finnis also states that Villey’s notion of subjective right does not capture many of the contemporary rights claimed in legal and political discourse, like the right to life and the right not to be tortured, that can’t be described as pretended “liberties” or “powers”: See Finnis 2002, 409. However, as we have seen, in 1969a Villey recognized that his notion of subjective right didn’t capture the nature of all pretended human rights, but over time he seems to have abandoned that precaution and called all human rights “subjective rights”.
On the other side, Villey was certainly not the first to claim that Aquinas did not know the concept of subjective right and, consequently, to make the distinction between objective and subjective meanings of “ius”. In a short paper of 1939, Hyacinthus Hering cites many Thomistic scholars who had made the same claim, beginning with Lehu in 1914. Hering, on the contrary, cites many texts of Aquinas where he seems to be using the word “ius” with a subjective meaning. See Hering 1939.
- 40.
For example, Cornish 1998. But also many others: Finnis, García López, Beuchot, just to name a few.
- 41.
For example, Georges Kalinowski.
However, see Donnelly 1980, who, apparently independently of Villey -at least, he never cites him-, reached the same conclusion as Villey: that Aquinas did not know the notion of subjective right and, therefore, can’t be considered a forerunner of the notion of natural or human rights. Brian Tierney has also defended the thesis that Aquinas did not know the notion of natural right, but he believes that Finnis has proved that, contrary to Villey’s thesis, it is not inconsistent with Aquinas’s natural law theory. See Tierney 2002.
As we will see, MacIntyre also believes there is no concept of subjective right in Aquinas.
Not only Villey’s thesis of the absence of the notion of subjective right in Aquinas has been contested by other authors writing within the Thomistic tradition. See, for instance, Vigo 1992, for a Thomistic critique of practically every tenet of Villey’s legal philosophy.
- 42.
See Tierney 2001, 13–42, for a critical review of Villey’s theses regarding Ockham’s role in the origin of the concept of subjective rights, and 43–77, where he states that natural rights theories originated in the work of canonists of twelth Century.
In the introduction to his work, Tierney states that “Among modern scholars, probably the most widely accepted account of the origin of natural rights theories is the one presented by Michel Villey” (Tierney 2001, 8), but adds also that “Villey’s argument has been widely and uncritically accepted” (Tierney 2001, 14). However, since the publication of Tierney’s work, it is hardly the case anymore that Villey’s account be the most widely accepted now.
Tierney also comments on Villey’s notion of subjective right, stating that “Villey persistently indicates that for him the modern idea of a right implies a power. He does not concern himself much with the more elaborate classification of rights, like that of Hohfeld, commonly encountered in the Anglo-American literature” (Tierney 2001, 16, n 12). It is true that Villey never draws on Hohfeld’s distinctions, but he seems to have known it, see Villey 2014, 24: “D’après l’Américain Hohfeld, il peut s’agir d’une liberté, d’une faculté d’agir en justice (claim), d’un ‘pouvoir’, d’une ‘immunité’”.
- 43.
After reviewing Villey’s and Tierney’s account, he prefers the latter’s, concluding that “So kann es keinen Zweifel geben, dass das Bewusstsein vom subjektiven Recht des Menschen, dass später bei H. Grotius, S. Pufendorf, Chr. Wolff die qualitas moralis gennant wird, bei den Kanonisten und Dekretisten des 12. und 13. Jh. schon vorhanden ist” (Kobusch 1997, 35). He seems to think the emergence of natural rights thinking as the correlate of what he thinks a new way of conceiving man, as a “person”, a being to which alone dignity could be ascribed and, therefore, with an esse morale different from the mode of being of natural things as conceived by Aristotle’s metaphysics -and therefore, the emergence of a new metaphysics, a metaphysics of freedom-, an occurence he locates in the work of Alexander of Hales in the twelfth century. See Kobusch 23–30. He thinks that this concept is absent in Ancient and early Christian thinking. See Kobusch 1997, 11.
- 44.
See Tuck 1979, 5–31. Villey came to know Tuck’s work, praising it. See Villey 1982, 695.
- 45.
According to Finnis, H.L.A. Hart was really interested in the thesis sustained by Villey, and encouraged Finnis to include a study of natural rights in his upcoming book on natural law (which became Natural Law and Natural Rights). See Finnis 2011f, 414–415. Isaiah Berlin seems to have approved Villey’s position regarding the origin of subjective rights. In his influential Two concepts of liberty, he states that “the doctrine is comparatively modern… Condorcet had already remarked that the notion of individual rights was absent from the legal conceptions of the Romans and Greeks; this seems to hold equally of the Jewish, Chinese and all other ancient civilizations that have since come to light” (Berlin 2012, pos. 4202), and adds in a note “See the valuable discussion of this in Michel Villey, Lecons d’histoire de la philosophie du droit (Paris, 1957), which traces the embryo of the notion of subjective rights to Occam” (Berlin 2012, pos 4202, n. 16). Similarly, Villey’s genealogy of the idea of subjective right plays an important role in Christoph Menke’s criticism of rights, see Menke 2018, 15–97. The Anglican theologian John Milbank has adopted both Villey’s genealogy of the notion of subjective right and his criticism of human rights: see Milbank 2012, and, on Milbank’s theory, Isler 2022b.
Of the authors writing within the Thomistic tradition, Michel Bastit in France has sustained Villey’s position regarding the absence of subjective rights in Aquinas and the dependence of a legal theory based on subjective rights on nominalist metaphysics.
- 46.
As Justine Lacroix and Jean-Yves Pranchère claim in Lacroix and Pranchère 2018, 34 and ff, where they conflate Michel Villey’s critique with that of MacIntyre and John Milbank. Alfred Dufour, on the other side, thinks Villey’s critique irreducible to that of his antimodern predecessors, see Dufour 2016, which is the best paper portraying the evolution of Villey’s stance regarding human rights.
- 47.
Villey 2003, 69: “Le dialogue de la République présente ce trait déconcertant pour les interprétes modernes qu’il porte, autant que sur la politique, sur la morale individuale….
On mutile la pensée de Platon si, comme beaucoup d’interprètes contemporains, on ne veut retenir de l’ouvrage que ses éléments politiques et juridiques au sens moderne…”.
- 48.
Although not completely idiosyncratic: Villey’s understanding of law is congenial to the understanding of law of some modern legal realists, specially that exposed by Oliver Wendell Holmes in “The Path of the Law”. See Holmes 1897. Similarly, it is the same understanding as that of the eminent Spanish Roman Law scholar Álvaro d’Ors, who says that “law is what the judges declare” (see d’Ors 1970).
- 49.
See Summa Theologiae I. q 85 a 1 resp. “Similitar dico quod ea quae pertinent ad rationem speciei cuislibet rei materialis, puta lapidis aut hominis aut equi, possunt considerari sine principiis individualibus, quae non sut de ratione speciei. Et hoc est abstrahere universale a particulari, vel speciem intelligibilem a phantasmatibus, considerare scilicet naturam speciei absque consideratione individualium principiorum, quae per phantasmata repraesentantur”. In I q. 85 ad 2 he treats on the process of abstracting concepts of natural kinds, mathematical and geometrical concepts, and metaphysical concepts, each later abstraction presupposing a former one.
- 50.
It has to be recognized, however, that Aquinas treats on essential natures such conceived, absolutely, only in a youth’s work, De Ente et Essentia, where he follows closely Avicenna on this topic. This treatment has no parallel places in the Corpus Thomisticum. See De Ente et Essentia, c 2., “Natura vel essentia sic accepta potest dupliciter considerari: uno modo, secundum rationem propriam, et haec est absoluta consideratio ipsius. Et hoc modo nihil est verum de ea nisi quod convenit sibi secundum quod huismodi. Unde quicquid aliorum attribuatur sibi, falsa est attributio. Verbi gratia, homini in eo quod est homo convenit rationale et animal et alia, quae in diffinitione eius cadunt. Album vero aut nigrum vel quicquid huiusmodi, quod non est de ratione humanitatis, non convenit homini in eo quod homo. Unde si qearatur utrum ista natura sic considerata possit diciit una vel plures, neutrum concedendum est, quia utrumque est extra intellectum humanitatis et utrumque potest sibi accidere. Si enim pluralitas esset de intellectu eius, nunquam posset esse una, cum tamen una sit secundum quod est in Socrate. Similiter si unitas esset de ratione eius, tunc esset una et eadem Socratis et Platonis nec posset in pluribus plurificari”.
- 51.
See, for instance, the Soviet Constitution of 1936, “Stalin’s Constitution”, which proclaims in articles 118–129 a list of basic rights that were never respected, including freedom of speech, of the press, inviolability of the person, and freedom of religion, and private property of personal goods (article 10). http://www.departments.bucknell.edu/russian/const/36cons04.html#chap10
- 52.
Just for example, and just to mention an extreme case, think of the right to “periodic holidays with pay” asserted in article 24 of the Universal Declaration of Human Rights. As it is widely known, this point had been made by many critics of social and economic rights, critics who, nonetheless, unlike Villey, believed in the existence of human rights, but reduced them to political and/or civil rights. Just for example, see Cranston 1983. Some devices made by defenders of social and economic rights include, for example, detaching the concept of human right from that of enforceability, or treating human rights only as prima facie entitlements.
- 53.
Joseph Raz addresses exactly this point. He cites the right to education recognized in the Universal Declaration of Human rights, whose enunciation is as follows: “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit” (article 26.1).
He comments: “If people have the right identified by the Universal Declaration as a right to education in virtue of their humanity alone, it follows that cave dwellers in the Stone Age had that right. Does that make sense?” (Raz 2015, pos 6601). He thinks that this is a problem for every theory that defends that human rights are universal because they belong to human beings as such, because of their humanity. Theories that assert this kind of universality to human rights he calls “traditional”.
As an alternative, he proposes to think human rights as “synchronically universal, meaning that all people alive today have them” (Raz 2015, pos 6623). These and other considerations make human rights, in Raz’s account, variable over time.
- 54.
For example, Robert Nozick has been criticized for his defence of property rights, a defense that for many is too extreme in its implications, since it denies any legitimacy to social justice. Villey would say that Nozick has only “taken property rights seriously”, to paraphrase Dworkin, since any human right, “if practised separately, generates injustices”.
- 55.
For example, article 23,3 of the Universal Declaration of Human Rights: “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”.
- 56.
For example, the same Universal Declaration of Human Rights, article 32, 1, says: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”. This enunciation seems to imply that, if I want to become a professional football player, even though not being talented at all, I have that right.
- 57.
Ceteris paribus: if there is sufficient economic growth, wages can rise without affecting employment.
- 58.
That human rights collide is a commonplace, recognized even by some human rights defenders. For example, Norberto Bobbio says “Tra i diritti compresi nella stessa dichiarazione vi sono pretese molto diverse tra loro e, quel che è peggio, anche incompatibili”. (Bobbio 1997a, 11). He even says that liberty rights and social rights are “antinomici nel senso che il loro sviluppo non può procedere parallelamente” (Bobbio 1997a, 13). Bobbio, however, does not deny the validity of human rights, and simply says that they have to be accepted as they are declared without looking for an ultimate foundation for them, a foundation he thinks impossible precisely because they are sometimes contradictory and “le ragioni che valgono per sostenere le une non valgono per sostenere le altre” (Bobbio 1997a, 11). He says that, given the fact of the Universal Declaration of Human Rights, the problem of the foundation has become sterile, and what is important is to make human rights effective rather than to look for their absolute foundation (see Bobbio 1997a, 15). Bobbio is the most famous defender in contemporary legal philosophy of what can be called “human rights fideism”. In moral philosophy, such a position has been defended by Richard Rorty (see Rorty 1998). A criticism of Bobbio’s human rights fideism may be found in Isler 2022c.
- 59.
Because in political rhetoric rights tend to be asserted as absolute. See Glendon 1991 chapter 2, on the contrast of how rights are claimed as absolute in American political discourse, and the way they are treated by courts.
- 60.
Similarly, and responding to this kind of criticism of human rights, Jack Donnelly explains that human rights need not to be understood as absolute, but he wrongly says “If natural rights were absolute, there could be no more than one natural right, unless we make the unrealistic assumption that there are rights which never collide with one another” (Donnelly 1982, 395). However, that is not the case: it is possible to conceive two or more absolute human rights, provided they conceptually cannot collide. For example, it can be asserted the existence of an absolute human right not to be tortured and an absolute human right to honor. What cannot be asserted is the existence of an absolute human right to honor and an absolute human right to free speech. As will be seen, precisely Finnis defends the existence of more than one absolute human right, but they are rights that conceptually cannot collide between themselves.
Therefore, it is not the case that “if natural rights were absolute, there could be no more than one natural right”. Neither is the converse true, “if there is one natural right, it has to be absolute”. It can be asserted the existence of one natural right with limits. For example, Hobbes asserted the existence of just one natural right in the state of nature, a right to do any action necessary to defend oneself from others, and even to attack and kill others in a defensive anticipation of their possible attack, but also said that this right extended only to what was considered necessary for self-defense and any aggression exceeding what is necessary for self-defense would be unjustified. Contrary to the commonplace, Hobbes’s “right of nature” is not a “right to everything”.
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