***Rights theory imagines human beings as monads prior to any interpersonal relations****Alasdair Maclntyre had been one of the most eloquent recent critics of the notion of natural rights. His criticisms can be attached to Villey’s effort to derive natural rights talk from the rise of nominalism and the emphasis on the individual. But Maclntyre would underscore that the individual who is the supposed carrier of rights simply does not exist. Natural rights theory imagines human beings as monads prior to any interpersonal relations, lodged in no particular culture or tradition. Since there are no such individuals, if natural rights require such individuals, natural rights are chimeric [illusion or myth]indeed.

NATURAL LAW AND HUMAN RIGHTS

Ralph McInerny*

 

 

 

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

 

I. THE RISE OF HUMAN RIGHTS

 

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

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

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

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

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

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

https://www.thomasinternational.org/ralphmc/readings/mcinerny000.htm#:~:text=The%20just%2C%20what's%20fair%2C%20the,sense%20has%20been%20contested%2C%20however.