The Thomist 73 (2009): 169-239 CONSCIENCE, FREEDOM, RIGHTS: IDOLS OF THE ENLIGHTENMENT RELIGION JOHN R. T. LAMONT

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The Thomist 73 (2009): 169-239

CONSCIENCE, FREEDOM, RIGHTS:

IDOLS OF THE ENLIGHTENMENT RELIGION

JOHN R. T. LAMONT

Catholic Institute of Sydney

Strathfield, NSW, Australia

THE UNDERLYING THEME of this article is the teaching

of the Catholic Church on religious liberty. In order to

address this much-contested subject one must first consider

other subjects that are at least as important: the concepts of

conscience, freedom, and rights. In this article, I will contrast St.

Thomas's understanding of these concepts with the understandings of the Counter-Reformation and the Enlightenment,

and will argue that St. Thomas's understanding is the one that

should be adopted. In addition to providing a necessary preliminary to an examination of Catholic teaching on religious

liberty, this discussion will put us in a position to understand the

state of the Church as a whole, and the crisis she has been

undergoing not simply since the Second Vatican Council, but

since the Enlightenment.

Examination of these concepts will have to be carried out at

some length. This is because I will be arguing for theses in the line

of the nouvelle theologie, claiming that the nominalist and

Counter-Reformation understandings of these concepts are wrong

and damaging, and that St. Thomas's understanding of them

should be accepted instead. Because St. Thomas's views on these

subjects are still often misunderstood, and the opposing views

remain well entrenched, the arguments for St. Thomas's position

need to be substantial.

169 

170 JOHN R. T. LAMONT

I. CONSCIENCE VS. PRUDENCE

A) Conscience in St. Thomas

Discussions of conscience usually proceed on the assumption

that its basic features are known and not controverted, or at least

not controverted by morally decent and sincere people. Frequent

rhetorical appeals to the rights of conscience and the inviolability

of conscience rest on this assumption. In fact, however, this

assumption is mistaken. The understanding of conscience to

which such rhetoric appeals is not an evident notion that arises

from universal human experience, but is rather the product of a

particular philosophical and theological development. This

development, together with the notion of human freedom with

which it is connected, began to be elaborated in the Middle Ages,

and was brought to completion by the theologians of the CounterReformation. It is radically different from the notion of

conscience held by St. Thomas, and the understanding of freedom

that it involves is radically different from St. Thomas's

understanding of freedom. To attain the degree of clarity that we

require about St. Thomas's understanding and the CounterReformation understanding, it will be necessary to put them in the

contexts of the accounts of human action of which they are parts.

This is particularly necessary in St. Thomas's case, in order to

remove the layers of misinterpretation that have been imposed on

his views by commentators trying to force his thought into the

mold of Counter-Reformation moral theology.

Conscience, according to St. Thomas, is not a power or a

habitus, but an act (STh I, q. 79, a. 13; De Verit., q. 17, a. 1}; it is

the act of making a speculative judgment about the goodness or

badness of a particular act of the will. The making of this

speculative judgment need not occur in the course of deliberating

about whether or not to do the act to which the judgment applies;

it can be made about actions in the past. This understanding of

conscience is at odds with the notions that conscience is an 

CONSCIENCE, FREEDOM, RIGHTS 171

authority, is "the most immediate giver of moral imperatives," 1 or

is the proximate rule of human acts, with the divine law being the

remote rule. 2 The act of making a judgment of conscience does

not as such give rise to moral permission or a moral imperative to

act, nor does it contain the power to motivate an action. It is the

reasons assented to in the judgment that perform these functions,

rather than the act of making the judgment. As Herbert McCabe

says, "it is not the strength and sincerity of my conviction that the

use of nuclear weapons must always be evil, but rather the

grounds for this conviction, that make it morally right for me to

refuse cooperation with any such use. "

3 On St. Thomas's view

there is nothing that makes a judgment of conscience closer to an

action than the divine law. It is misleading to think of conscience

in his sense as authoritative or imperative, because the basic act of

conscience is a passive one, in the sense that all judgments about

reality are passive: they are formed in response to reasons and

evidence. Moreover, when the content of a judgment of conscience is known to be true, it is misleading to speak of the

reasons contained in such a judgment being the motivation for

action, rather than the realities this judgment is about being the

motivation. Saint Thomas holds that our knowledge of propositions does not stop short at the propositions known, but attains

the realities themselves that the propositions are about. For such

judgments, it is thus the good itself that is known that ultimately

motivates action.

This passivity exists even in the case of an erroneous judgment

of conscience. Saint Thomas holds that such a judgment must be

obeyed, but this is not (contrary to what many of his interpreters

say) simply because there is something about conscience as such

that demands obedience. It is instead because built in to the

notion of making a judgment of conscience-whether erroneous

or not-is the fact that the person believes something about the

act being judged that makes it a good or bad act, even if the belief

1 Karl Rahner, "The Appeal to Conscience," in idem, Nature and Grace, trans. Dinah

Wharton (New York: Sheed & Ward, 1964), 49.

2 St. Alphonsus Liguori, Theologia Moralis, new ed. (Lyon, 1829), lib. 1, tract. 1, p. 2.

3 Herbert McCabe, "Aquinas and Good Sense," New Blackfriars 67 (1986): 421-22. 

172 JOHN R. T. LAMONT

is something as general as "this act is commanded by God." It is

this reason, as believed to be true, that confers authority on the

judgment of an erroneous conscience. Ascribing moral authority

to the judgment of conscience as such is like giving the act of

calculating the answer to a statistical problem a probabilistic value

in itself, which raises the probability of the conclusion arrived at

in the calculation beyond the probability conferred on the

conclusion by the other evidence that the act of calculation takes

into account.

Because there are no limits in principle to the kinds of

knowledge that may be needed to establish that particular actions

are good or bad-a doctor will need scientific knowledge, a civil

engineer will need mathematical knowledge, and so onconscience in St. Thomas's sense is not the product of any

particular cognitive power. This was denied by some later theologians, who distinguished between actual conscience-conscience

as St. Thomas defines it-and habitual conscience, which they

conceived of as the power to form judgments of conscience. They

situated this habitual conscience in St. Thomas's system by

identifying it with his notion of synderesis. 4

This glaring misinterpretation is an interesting example of the

force of preconceived ideas. 5 Saint Thomas makes it clear that

synderesis is the grasp of the first principles of practical reason.6

4 This identification is explicitly made by Philippe Delhaye, who speaks of "habitual

conscience or synderesis" (P. Delhaye, La conscience morale du chretien [Tournai: Desclee,

1964], 96). A similar identification is made in M. Zalba, Theologiae Moralis Compendium I

(Madrid: Biblioteca de Autories Cristianos, 1958), 356.

5 It should be acknowledged that the identification of the principles grasped by synderesis

with moral principles is suggested by St. Jerome's account of the term in his commentary on

Ezekiel (translated in Timothy C. Potts, Conscience in medieval philosophy [Cambridge:

Cambridge Univeresity Press, 1980], 79-80) and by the account in Peter Lombard (see ibid.,

93), and is explicitly advanced by Philip the Chancellor (ibid., 100), St. Bonaventure (ibid.,

116), Albert the Great (see Eric D' Arey, Conscience and Its Right to Freedom [London: Sheed

and Ward, 1961], 31-33), and others. This fact makes St. Thomas's departure from this

consensus a striking innovation.

6 See STh I, q. 79, a. 12. Although the accounts of practical reason given by Germain

Grisez and John Finnis differ radically from that of St. Thomas, they do underline that the

first principles of practical reason in St. Thomas are not moral principles. This was a

fundamental advance. 

CONSCIENCE, FREEDOM, RIGHTS 173

These principles are made up of the very first principle of

practical reason, which is that good is to be done and evil to be

avoided (STh 1-11, q. 94, a. 2), and the principles that specify basic

goods to which humans have a natural inclination, such as life,

reproduction, knowledge, and social existence (cf. ibid.). But

these principles are not only the principles of right action, or even

of action that is believed (whether innocently or culpably) to be

right, but of all rational action whatsoever, whether or not it is

good or approved by the judgment of conscience. That is what it

means to say that they are the first principles of practical reason.

What makes them the principles of all rational action is that all

such action is motivated by the good as understood by the reason

("omne enim agens agit propter finem, qui habet ratione bani"). 7

The subsidiary principles of synderesis specify in a basic way what

the forms of good for humans are, and the first principle conveys

what good as such is. Without a grasp of these principles, there

could be no rational action. The subsidiary principles determine

what morally bad actions are, because such actions are simply

actions that are not good in every respect, and the principles

determine what it is to be a good human action. These principles

are not proscriptions of such actions.

This explains why St. Thomas holds that no one errs

concerning these subsidiary principles (STh I, q. 79, a. 12, ad 3).

If these principles were basic moral principles like "do not steal,"

"do not murder," and so on, it would be obviously false to claim

that no one disbelieves them. But in St. Thomas's conception, a

person who fails to grasp one of the subsidiary principles would

not be a person who would fail to understand that acts that violate

the good referred to in them would be wrong. He would be a

person who could not do an act that is motivated by the good

referred to in that principle-whether it be life, or reproduction,

or social existence-because he would not understand that these

features of human life are worth pursuing. The inability to grasp

any of these basic forms of good as motivations for action would

make someone irrational, and it is thus true that any rational

7 STh I-II, q. 94, a. 2 (Madrid ed., 610). 

174 JOHN R. T. LAMONT

person will grasp these principles. (This grasp, because it is a

feature of practical rather than theoretical reason, need not

involve philosophical acceptance of these principles as principles

of action-Kant and Mill were not practically irrational as a result

of holding views on action and morality that were incompatible

with St. Thomas's account of synderesis. But it does require the

ability to act in pursuit of these goods as such.)

The idea that synderesis in St. Thomas can be equated with

habitual conscience is an erroneous assimilation of his views to the

position of later theologians-to the position of moralities of

conscience, a school of thought that is more fully discussed below.

One mistake in this assimilation is the one just noted, that of

holding that only morally good actions can be motivated by the

principles grasped by synderesis. This mistake necessarily follows

from a further one, which is a wrong understanding of what St.

Thomas conceives these principles to be. In moralities of

conscience, the principles grasped by synderesis are understood in

a way that conforms to the definition of synderesis as "habitual

conscience." They possess two features that distinguish them from

these principles as St. Thomas understands them: they have

imperative force, and the fact that an action is done out of

obedience to them makes that action morally good.

For St. Thomas, however, it is only the very first principle of

practical reason-"good is to be done and evil is to be avoided"-

that moves the will, because it is this principle that commands the

pursuit of the ultimate end of man, which is in turn the motive for

all rational action (cf. STh 1-11, q. 1, aa. 3 and 6). All other goods

are sought for the sake of the ultimate end, which is specified by

the goal of human nature as such. This notion can be illustrated

by an analogy with a car. It might be good for a car of a given

make to operate at between 1500 and 4500 rpms. This way of

operating will, however, only be good on account of the ultimate

end of the car. If the car had a different end, such as emitting a

certain amount of heat or producing a certain amount of C02, it

could be the case that only operating above 4500 rpms would be

good. Without the end of the car being given, it is impossible to 

CONSCIENCE, FREEDOM, RIGHTS 175

say whether or not such operation would be good. The same

applies for the goods grasped by synderesis, in St. Thomas's

understanding. Since the ultimate end is the criterion for good

action, the fact that an action is motivated by one of the particular

goods grasped by synderesis cannot suffice to make it a good

action. A good action is one that pursues the particular good in

such a way as to attain the ultimate good. This requirement to

reach the ultimate good, a good not referred to by the principles

grasped by synderesis, means that these principles cannot function

as imperatives, obedience to which makes an action good as such.

A further misinterpretation of St. Thomas's account of conscience lies in the way it has been connected to prudence. Later

members of the Thomist school, beginning with Billuart, 8

described true judgments of conscience as being acts of the virtue

of prudence. Identifying the error in this position is very helpful

in illuminating St. Thomas's account of conscience.

Billuart confines acts of prudence to true judgments of

conscience because he is aware that prudence, being a virtue, only

produces good acts. He wrongly identifies such true judgments

with exercises of prudence, because he fails to understand that

prudence-as St. Thomas understands it-is a virtue that is

exercised in acts. Prudence is what supplies the intellectual

component of good actions (cf. STh 11-11, q. 47, a. 8). The assent

to a true judgment of conscience will form a component of an

exercise of prudence, but it cannot itself be an exercise of

prudence, because an exercise of that virtue goes all the way

through to the act. One can make a true judgment of conscience

without acting upon it, and a person who does not act well is not

prudent, even if all his beliefs about how he should act are true.

8 "An upright conscience coincides with the act of prudence that is termed judgment"

("Conscientia tamen recta coincidit cum actu prudentiae qui dicitur judicium"; Charles

Billuart, Summa Sancti Thomae, vol. N, new ed. [Paris: Meillier Freres, 1828], 187). I owe

this observation to M.-M. Labourdette's lecture notes on the Summa, Cours de theologie

morale: Les actes humains, 2a2ae, 6-48 (Toulouse, 1959-60); see esp. p. 150. The discussion

of conscience and prudence in this paper is largely based on these notes. I have not been able

to obtain the revised version of this course published by Parole et Silence in 1999, and have

used the original notes. 

176 JOHN R. T. LAMONT

But a true judgment of conscience is not an act, and need not be

acted upon.

Saint Thomas's conception of prudence and conscience

explains why he gives an extensive discussion of prudence, but no

discussion of formation of conscience, and not much discussion of

conscience itself. According to St. Thomas's understanding of

prudence, identifying the formation of conscience as the way to

moral improvement is a mistake, if such formation is understood

as first an attempt to improve one's capacity for arriving at true

speculative judgments about the rightness or wrongness of actions,

in order then to be able to act upon this improved knowledge. On

St. Thomas's view, this will not work. The natural way to get

better at knowing what it is good to do is principally by doing

what is good (the qualifier "natural" here is meant to take into

account the possibility of divine grace producing knowledge of

what it is good to do). One can acquire knowledge about the

goodness or badness of actions through speculative investigation

rather than through practice, but only in a subsidiary and

introductory way. Such speculative investigation will primarily

yield information about kinds of action that are intrinsically

wrong, and the learning of such information belongs to the first

stages of moral development. Apart from such intrinsically wrong

actions, the goodness or badness of most actions cannot be

deduced from an easily accessible description of them. It is part of

the task of prudence to discern the relevant descriptions under

which actions should be evaluated; and the capacity to make this

discernment is developed through developing one's prudence,

which is done through doing good acts. It is thus prudence, rather

than conscience, that plays the central role in moral discernment

for St. Thomas.

The notion of formation of conscience not only obscures the

central role of good action in developing one's power to form

true judgments of conscience, but also conveys a mistakenly

individualistic picture of how this power is developed. The chief

way in which prudence is developed is not by reasoning out moral

judgments on one's own-"forming one's conscience"-and then 

CONSCIENCE, FREEDOM, RIGHTS 177

acting on them, but by accepting moral principles on trust from

the persons charged with one's education, and then learning the

truth of these principles for one's self by acting on them. This is

indeed the kind of way one acquires practical skills in general. It

applies not only to the overarching virtue of prudence, but to

subsidiary practical skills such as those of a doctor, a lawyer, or an

airplane pilot.

B) Moralities of Conscience

Counter-Reformation moral theologies are what Michel

Labourdette disparagingly calls "moralities of conscience." The

central role of conscience rather than prudence in these theologies

emerges from an overall structure that is radically different from

that of the theology of St. Thomas (one should not say "from the

moral theology" of St. Thomas, because the very term and

concept of "moral theology" belongs to moralities of conscience,

not to St. Thomas's thought). Servais Pinckaers has rightly

identified the notion of liberty of indifference as the fundamental

source of the divergence between St. Thomas and CounterReformation thought. 9 Originally inherited from nominalists and

Scotists, and preserved from criticism in part because of its

perceived usefulness in combating Protestants and J ansenists, 10 the

notion of liberty of indifference is defined by its rejection of St.

Thomas's claim that there is something the will wills of necessity,

and by its assertion that freedom consists purely in the power to

choose between alternatives.

Pinckaers's term for St. Thomas's conception of liberty,

"liberte de qualite," has been rather uninspiringly translated as

"freedom for excellence," which sounds like the motto for an

earnest service club--and misleadingly suggests that such freedom

is directed especially towards excellence, rather than to any

9 See Servais Pinckaers, Ce qu'on ne peut jamais faire (Paris: Editions du Cerf, 1986), 43-

46; and idem, Les sources de la morale chretienne, 2d ed. (Paris: Editions du Cerf, 1990),

chap. 10, esp. pp. 259-61.

10 On liberty of indifference as a weapon against Jansenism, see Pinckaers on Billuart, in

Pinckaers, Les sources, 357-58. 

178 JOHN R. T. LAMONT

goodness whatsoever. The term that will be used for this conception here is "teleological liberty." This term is intended to

signify that all voluntary action, according to St. Thomas, is done

for the sake of some good that is understood by the intellect as

good; that the ultimate good sought is happiness; and that

happiness is determined by human nature, whose teleology

specifies the goal of human beings as such, achievement of which

goal constitutes happiness. Possession of teleological liberty is a

result of the possession of intellect and will, and its exercise is an

exercise of those faculties. The source of moral obligation, on this

view, is the fact that some actions are not good in every respect,

and hence ought not to be done; it is not that they lack some

specific kind of goodness that can be called "moral goodness."

The source of the capacity to sin is the fact that actions, although

seen as evil when adequately considered, can nonetheless fall

under more general descriptions that refer to good sorts of action,

and hence can motivate the will to pursue them. Freedom to

choose between alternatives arises from the fact that more than

one possible action can be good in some respect. Hence, the

blessed in heaven, who, because of their direct apprehension of

the divine essence, are unable to conceive of sin as good, are

unable to choose to sin; but this is not a limitation on their

freedom. The law of nature that specifies the goodness of the will

is given by the goods to which human teleology is directed. This

law, whose basic features are grasped in synderesis, does not

specify kinds of good action, but features of reality that human

actions are to realize, features that provide the measure by which

to evaluate actions. A law is nothing other than a certain plan and

rule of acting ("lex nihil aliud sit quam quaedam ratio et regula

operandi"). 11

If liberty is conceived of as liberty of indifference, however,

this conception of the ultimate motivation for human action has

to be abandoned, because liberty of indifference must retain the

power to reject any good at all presented to it by the intellect. The

11 ScG III, c. 114 (St. Thomas Aquinas, Summa contra Gentiles [Rome: Leonine

Commission, 1934], 366). 

CONSCIENCE, FREEDOM, RIGHTS 179

notion of such a power is incompatible with St. Thomas's very

first principle of practical reason. It also denies the teleology of

human nature, as St. Thomas understands it. For him, this

teleology consists in the fact that voluntary action, and the human

will itself, it directed towards the good as understood by the

reason. If this direction does not exist, the end of man, as he

conceives it, is removed. Liberty of indifference thus removes the

basis of his account of the nature of the human good, of practical

reason in general, and of good action.

A replacement for this basis is required for the purpose of

moral theology, and it is furnished by the notion of the command

of a superior as the ultimate motivation for doing what is good.

For Ockham, the content of what is good is furnished by the

divine command, as well as the obligation to do it. 12 For

Suarez-a characteristic representative of Counter-Reformation

theology, as the official theologian of the Society of Jesus-the

content of what is good is given by the nature of things, and this

goodness can provide a motivation for action. It cannot, however,

make an action obligatory, and thus cannot furnish a basis for

morality and for law. The command of God adds the extra

ingredient needed to achieve this. Law, in the mind of the

legislator, consists in a just and right act of will by which a

superior wills to oblige an inferior to do this or that thing ("addo

... legem mentalem [ut sic dicam] in ipso legislatore esse actum

voluntatis justae et rectae, quo superior vult inferiorem obligare

ad hoc vel illud faciendum") 13 In order for this act to apply to the

inferior it must be promulgated, but this happens, in the case of

the natural law, through rational beings inferring that God, as

perfectly good, wills that the natural good be done by us (De

Legibus, bk. 2, ch. 6, para. 8). In St. Thomas, by contrast, it is the

12 This account of Ockham's views is contested-see Thomas M. Osborne, "William of

Ockham as a Divine Command Theorist," Religious Studies 41 (2005): 1-22, for a description

of this debate-but it will be accepted here, as providing one of the main theoretical

possibilities for describing how the divine command determines moral obligation.

13 Suarez, De Legibus, bk. 1, ch. 5, para. 24, in Franciscus Suarez, S. ]., Opera Omnia, vol.

5 (Paris: Vives, 1851), 22. This definition, radically different from the definition of law given

by St. Thomas and cited above, is repeated in substance as late as the manual of Zalba,

Theologiae Moralis Compendium I (1958), 173. 

180 JOHN R. T. LAMONT

grasp of the first principles of practical reason itself, rather than

any inference to conclusions about God's will for us, that

constitutes the promulgation of the law of nature (STh 1-11, q. 90,

a. 4, ad 1). Suarez, in proposing a morality of obligation rather

than a morality of virtue, was characteristic of a general outlook

that had become common in the Middle Ages, and later became

universal. Elements and causes of this outlook were the replacement of the virtues by the Ten Commandments as the basis of

moral catechesis, the revival of Roman law in the Middle Ages,

and the power and influence of canonists; St. Thomas in fact

stood out against this movement, which was already strong in his

day.14

The idea that the law of nature consists in commands is a

reversal of St. Thomas's idea. The law of nature for St. Thomas

works from the inside; the will moves towards the ultimate end,

via the particular goods that participate in it. For Suarez, the force

of the law of nature comes from the outside: the divine command

replaces the first principle of practical reasoning as the ultimate

source of obligation, and gives an imperative force to the law.

Because this law has to govern individual actions, its imperative

force has to reach all the way to commands, prohibitions, and

permissions of specific actions, these being the categories of

imperative that Suarez assigns to the law (De Legibus, bk. 1, ch.

15).

Because it is impractical to have a distinct divine command for

every possible situation, the description of the kinds of action that

are commanded, prohibited, or permitted is always rather general.

Their application to particular cases is thus not straightforward.

This is where conscience enters into the picture. Conscience, in

the conception of Suarez and of other moralists of conscience, is

the intermediary between divine commands and particular

actions. Conscience is an active power-it has the task of

discerning how the application of a command to a particular

action is to be done. Since it is only by conscience that the divine

14 On this see Thomas Gilby, "Appendix 1; Prudence and Laws," in St. Thomas Aquinas,

Summa Theologiae, vol. 36 (2a2ae 47-56) (London: Eyre & Spottiswoode, 1974). 

CONSCIENCE, FREEDOM, RIGHTS 181

commands are applied to action, conscience becomes an authority. It is not simply the reasons upon which conscience judges that

have authority; conscience inevitably possesses an authority of its

own, since it carries out the selection and evaluation of reasons

for judging an action. In this capacity, conscience becomes central

to Counter-Reformation moral theology-in contrast to its very

minor role in St. Thomas.

C) Conscience as Authority

This notion of conscience as an authority gives rise to a crucial

difference between St. Thomas's notion of conscience and that of

Counter-Reformation theologies. For St. Thomas, and for

moralities of conscience, an erring conscience binds; if one falsely

believes that a given act is good or bad, one is morally required to

act in accordance with that false belief. An erring conscience does

not necessarily excuse, however; if one's false belief is the result

of previous bad actions, acting in accordance with it remains a sin.

Only when a mistaken judgment of conscience is arrived at

inculpably is acting in accordance with it not sinful. Thus far, St.

Thomas and moralities of conscience agree. Where they disagree

is over the question whether an action that follows an inculpably

erring judgment of conscience is a good action or not. Saint

Thomas denies that such actions are good. He asserts that the

ignorance in question removes the character of voluntariness from

the act, thus making it neither good nor bad (STh I-II, q. 19, aa.

5-6; see also De Verit., q. 17, a. 4).

For moralities of conscience, however, an action done in

accord with an inculpably ignorant judgment of conscience is not

only not sinful, but good. 15 Such an action is put on the same

moral level as an action based on a judgment that is actually true.

This follows from the conception of conscience as an authority,

and of good action as consisting in obedience to that authority.

15 This is stated in Suarez, De bonitate et militia humanorum actum, <lisp. 12, sect. 4, 7-9,

in Opera omnia, vol. 4 (Paris: Vives, 1856), p. 445. He is preceded in this by Ockham; for

discussion see Michael G. Baylor,Action and Person: Conscience in Late Scholasticism and the

Young Luther(Leiden: Brill, 1977), 87. 

182 JOHN R. T. LAMONT

That is not to say that moralists of conscience do not argue for

this position. Eric D' Arey makes a case for it:

The will has only one way of recognizing good or evil: the picture presented to

it by reason. If reason presents a false picture, the will cannot be blamed; there

is only one standard for judging it: the good as apprehended. If it fails to live up

to that, its only standard, its performance is bad. But if it is faithful to its only

standard, its performance is surely good. What else is a standard for? 16

This line of argument is offered by D' Arey as the basis for the

position that conscience has rights, and is a clear and

characteristic statement of the case for this position. It is not

controversial that someone has the right to act according to a true

judgment of conscience; but it is not apparent that this right has

anything to do with conscience as such. The right, in such a case,

could more plausibly be based on the true moral facts that such a

judgment of conscience correctly apprehends. For conscience as

such to have rights, there need to be cases where it is the

judgment of conscience as such that confers the right to act. A

culpably erroneous judgment of conscience will not be a suitable

case, so this leaves inculpably erroneous judgments of conscience

as the only plausible basis for rights of conscience as such. D' Arey

gives a typical argument for the existence of such a right. He

claims that such rights exist in the case where a judgment of

conscience, to the effect that one has a moral duty to act in a

certain way, is erroneous, but where this error is blameless as

being due to invincible ignorance. His argument is that a

condition for attaining the sovereign end of the human person is

substantial fidelity to moral duty, and that such fidelity consists in

following one's conscience. The sovereign end of the human

person is not subordinate to the good of the state; instead, the

state exists in order to promote the ultimate good of persons. The

state thus has a duty to respect actions that are done out of fidelity

16 D' Arey, Conscience and Its Right to Freedom, 117-18. This argument resembles the one

given in Suarez, De bonitate et militia humanorum actuum, disp. 12, sect. 4, para. 8 (Vives

ed., 445). We can take it that D'Arcy is assuming that such conformity exists not just for the

action itself, but for any other actions that influence the judgment that is made about the good

of that action. 

CONSCIENCE, FREEDOM, RIGHTS 183

to moral duty, even when this fidelity is based on an erroneous

judgment of conscience-a fidelity that will exist in cases where

the error of such a judgment is inculpable.

The falsity of this conclusion is readily established. For one

thing, human stupidity does not have narrow limits; as a result, in

the case of almost any just law it is possible that someone could,

as a result of stupidity and/or bad epistemic opportunities,

inculpably come to believe that we ought not to obey it, and

inculpably be unable to figure out that this belief is wrong. Some

suicide bombers, for example, may fall into this category with

respect to laws that proscribe suicide bombing. But it cannot be

claimed that stupid people of this kind have a right to act in

accordance with their consciences. Moreover, a culpably erring

conscience cannot as such ground a right; and the difference

between a culpably and an inculpably erring conscience is not

discernible to outside observers (and is not always discernible to

the agent himself at the time of action). The distinction between

a culpably and inculpably erring conscience is thus not something

that a legal system can take into account. Possession of an

inculpably erring conscience hence cannot be the basis of a legal

right. Nor, obviously, can a claim to be inculpably acting in

accordance with one's conscience form the basis of a right. Such

a claim is an observable fact, but it is one that anyone can make

about any action at all without fear of being shown to be wrong.

To allow that an inculpably erring conscience confers a legal right

would thus lead to the total undermining of the legal order.

D'Arcy is however right in holding that such a right follows from

the premises of the morality of conscience. Seeing where the

argument goes wrong casts light on how that morality is mistaken.

The fact that D'Arcy's views sound very convincing, if we do

not consider their unworkable implications, indicates the

influence of moralities of conscience on our moral assumptions.

The flaw in his argument is its assumption that St. Thomas is 

184 JOHN R. T. LAMONT

wrong in denying that an action done in accordance with an

inculpably ignorant judgment of conscience is morally good. 17

We can see through the appeal of the argument, however, if we

construct an analogous argument about belief, along the following

lines: We can only believe in accordance with the grounds for

belief our reason presents us with; if our reason gets these

grounds wrong, our act of belief cannot be blamed, because there

is only one standard for judging it: its conformity to the grounds

presented to it by reason; but if it is faithful to its only standard,

our act of belief is surely good. The problem is that there is not

only one standard for judging belief. In addition to the standard

of conforming belief to the grounds for belief present to the

reason, there is the standard of actually being true. This latter

standard is the fundamental one, because truth is what beliefs aim

at.

A similar point can be made about action. Action aims, not

simply at conforming to the judgment about the good made by the

reason, but at conforming to what actually is good. The latter

standard is the fundamental one; we conform to the judgments

about the good made by reason for the sake of doing what is

actually good. It is not true that conforming to the good as

apprehended is the only standard for the will. It is a subsidiary

standard, but it is not the prime standard, the attainment of which

makes an action good. We tend to lose sight of the distinction

between these standards because the influence of moralities of

conscience has made us lose sight of the fact that actions have the

purpose of really achieving some human good.

In St. Thomas's view the ultimate motivation of action, in true

judgments of conscience, is the good itself that is judged to exist.

This view in turn is based on his view that when true propositions

are known, the ultimate object of knowledge is not those

propositions, but rather the things that the propositions are about

(cf. STh 11-11, q. 1, a. 2, ad 2). This fact makes it possible for the

17 D'Arcy is aware that St. Thomas's views differ from his own, but dismisses St. Thomas's

positions in a rather hubristic manner, remarking that "one cannot but feel again the

disappointment occasioned by some of the views of St. Thomas studied in the third part of

this book" (D'Arcy, Conscience and Its Right to Freedom, 216-17). 

CONSCIENCE, FREEDOM, RIGHTS 185

will, responding to knowledge of some good, to have as its proper

object not the mind's knowledge of that good, but the good itself

existing in extramental reality. As a result, if this object is absent,

the good to the knowledge of which conscience is ordered is

absent. In moralities of conscience, however, the good to the

knowledge of which conscience is ordered is simply obedience to

the divine command, when that command is apprehended by the

reason. This collapses doing good into doing what one inculpably

believes to be good.

This collapse explains the different approaches taken to erring

judgments of conscience in medieval theologians and in moralities

of conscience. The medieval approach is that if one's judgment of

conscience errs, one should correct the error. The possibility of

making a correction is generally taken for granted by them. For

one thing, proposed actions believed to be good are confronted

with reality when they are actually performed, and this

confrontation casts light on whether actions of this sort are truly

good or not. Such a light, if carefully attended to, enables the

agent to develop the capacity to bring the judgments of his

conscience in line with the truth. For another thing,

Catholics-who after all made up the audience for medieval

theologians-have access to the teachings and the means of grace

provided to them by the Church. These aids to action cannot fail

to enlighten the consciences of those who sincerely avail

themselves of them.

For moralities of conscience, however, a judgment of conscience is produced by factors internal to the agent: understanding

of the divine commands, and the conscience's application of those

commands to a particular situation. Any other influences on

judgments of conscience-practical experience, or grace-must be

mediated through these internal factors. In a case where the

conscience errs, it is therefore hard to explain how such error can

be readily corrected. The medieval approach cannot be applied,

and the focus is moved to moral evaluation of the errmg

conscience, rather than to the task of putting it right. 

186 JOHN R. T. LAMONT

D) Disastrous Results of Moralities of Conscience

This error of moralities of conscience about inculpably erring

consciences has an important implication for the moral life. The

fact that acting on an inculpably erring conscience is not morally

good means that such actions do nothing to develop virtue in the

agent. This gives a reason for correcting such a conscience that is

recognized by St. Thomas, but not by moralities of conscience.

Much of the importance of conscience in moralities of conscience arises from the fact that the task assigned to it by these

moralities-deducing from general commands the action that is

appropriate to a particular situation-cannot actually be carried

out, except in the case of applying exceptionless moral norms that

forbid intrinsically evil actions. No such deduction can occur,

because these commands, being more general in their content than

typical descriptions of particular situations, cannot logically

determine the rightness or wrongness of such situations. In real

life, what happens in the case of good action is that prudence

discerns from the realities of the situation what it is that is good

to do (just as St. Thomas says). This discernment is possible

because an account of realities, unlike a command to perform

certain actions, can be developed through investigation to the

point of containing enough content to be able to specify what it

is good to do in a given situation. Accounts of realities can thus be

suited to each individual situation, whereas commands cannot,

since a command cannot be provided for each one of the (infinite)

number of possible situations that may arise. This problem was

addressed in the world of moralities of conscience, however, by

developing casuistry to bridge the gap between commands and

actions, producing numerous ready-made solutions to possible

moral dilemmas (about twenty thousand in the Resolutiones

morales of Antonino Diana). 18

The difference between the law of nature for St. Thomas and

the law of nature for moralities of conscience can be illuminated

18 Diana, a laxist, was nicknamed "agnus Dei," on the grounds that he took away the sins

of the world. 

CONSCIENCE, FREEDOM, RIGHTS 187

by an analogy. The law of nature for moralities of conscience is

like a book of instructions for repairing a car. Such books are

incapable of being complete guides to car repair. They provide

norms for action in repairing cars, but they can never settle every

question about what should be done to the car. What is more, the

norms that they do provide always presume some basic (or not so

basic) prudence on the part of the mechanic. The law of nature

for St. Thomas is like the car itself. The car itself does always

furnish enough information about how it should be repaired, if it

is investigated carefully enough. Exceptionless moral norms, for

St. Thomas, are like facts about how the car can never be made to

work (e.g., by rearranging it to inject water rather than fuel into

the pistons). Increasing one's knowledge about how to repair a car

cannot effectively be done by learning the contents of more and

more detailed repair manuals, either. It can only be done by

actually practicing car repair, and moving from easier repairs to

more difficult ones-a process analogous to the acquisition of

moral knowledge by the exercise of prudence.

Since humans, unlike cars, have more than one activity to carry

out, it would help to give a more complex analogy. The goodness

of human actions for St. Thomas is like the goodness of the

actions of a battleship (where "battleship" is meant to include

crew as well as vessel). The good functioning of a battleship

involves such things as navigating, signalling, firing accurately at

the right targets, and keeping station with other ships-all of

which are evaluated by the ultimate function of a battleship,

which is to engage and def eat the enemy in pursuance of orders.

Saint Thomas's assertion that an action is good absolutely

speaking only if it is good in every respect, and bad absolutely

speaking if it is not good in any one respect, has a parallel in the

performance of a battleship; if the ship is firing accurately but at

the wrong target, or moving at the right speed and time but in the

wrong direction, its performance is bad absolutely speaking.

There are rules that are absolutely true for the performance of a

battleship (e.g., it is always a bad thing to capsize) and that are

true as a rule (e.g., the admiral's orders should be obeyed 

188 JOHN R. T. LAMONT

[justified exceptions like Nelson at Copenhagen being rare]). But

no amount of knowledge of rules will suffice for good

performance, which results principally from skill learned through

practice.

The substitution of rules for reality by moralities of conscience

helped to undermine morality, by disguising what is at stake in the

moral life. Saint Thomas makes it clear that bad actions are bad

because they are calamitous for the person who does them. If

their badness is supposed to consist in breaking a divine command

transmitted by the conscience, however, their calamitous character for the person who does them is obscured. Since it is this

calamity that in reality constitutes the action's moral badness,

obscuring it is a form of moral de-education-a de-education that

substitutes for the actual basis of morality a sort of Freudian

super-ego, an internalization of the wishes of a father figure. As

well as undermining morality, this fostered infantilization. The

internalization of the commands of parents is necessary for the

moral education of children, who are not capable of formulating

accurate moral rules on their own, and who lack the psychological

resources to follow such rules without the aid of parental

pressure. Development of moral maturity however requires

leaving behind these aids to right action, and doing what is good

because it is understood to be good. Moralities of conscience

discouraged this maturing process, because they presented moral

action as something resembling childish obedience.

The elaboration of moralities of conscience during the

Counter-Reformation was accompanied by an emphasis on the

confessional as a means, even the means, of spiritual formation.

This meant that the outlook of these moralities was inculcated

into Catholics in a most serious and intimate manner. The

standard classification of kinds of consciences in moralities of

conscience-as perplexed, scrupulous, or lax-were described in

manuals of moral theology as offering a classification of natural

forms of human character. However, these categories were in fact

psychological tendencies or malfunctions produced by the

inculcation of moralities of conscience. This is apparent from the 

CONSCIENCE, FREEDOM, RIGHTS 189

fact that the problem of scrupulosity did not exist as a serious and

widespread disorder in the Middle Ages or antiquity, but became

one of the gravest and most common spiritual problems for

Catholics after the Counter-Reformation. Philippe Delhaye

remarked in 1964 that at least half of the discussions in moral

theology concerning problems of conscience dealt with

scrupulosity. 19

These disorders are connected to the fact that the law of nature

in moralities of conscience has a radically different scope from the

law of nature in St. Thomas. For moralities of conscience, there

are possible motivations for human action that do not come under

the law of nature, an idea that has no place in St. Thomas's

thought. Such motives are allowed for in the notion of permissive

laws, a notion that accepts that acting on motivations that are

independent of the law of nature is possible, and can even be

good. This divides up the terrain of actions between conscience

and freedom, and presents conscience as a constraint on freedom.

For St. Thomas, on the other hand, a true judgment of conscience

can constrain freedom in the sense of ruling out certain actions,

but it cannot constrain the will in the sense of denying it what it

is ultimately directed towards. True judgments of conscience by

definition direct the will towards what it will find satisfying.

Moralities of conscience, however, present God as denying us

what we will actually find satisfying, thus giving us a ready-made

inducement to rebel against him. They thus gave a psychological

boost to Enlightenment atheism.

More recently, the division of actions between conscience and

freedom has resulted in a tendency to give unrealistically positive

evaluations of people's actions. It has fostered a usually unexamined assumption to the effect that if someone is motivated to

perform an action by some form of will for the good, that action

19 Delhaye, La conscience morale du chretien, 103-4. Delhaye gives an insight into how

tiresome scrupulous penitents are for confessors: "they can describe their case for five hours

and return the next day . . . they change confessors in order to have the pleasure of repeating

their story" (ibid., 106-7); this tiresomeness may have been an important factor in the virtually

complete abandonment of moralities of conscience by confessors between the 1950s and the

1970s 

190 JOHN R. T. LAMONT

can be supposed to belong to the sphere of conscience rather than

freedom, since the former is the proper home of the pursuit of the

good, as opposed to the pursuit of simple gratification. This is

probably a motivation for theologies of religious pluralism that

argue, or even begin by assuming, that religions other than

Catholicism ought to be considered as alternative ways to salvation. For St. Thomas, however, doing an action for the sake of

some form of the good is simply equivalent to doing a voluntary

action, and does not constitute a recommendation for it.

The separation of moral and spiritual theology that emerged in

the Counter-Reformation period was an important result of

moralities of conscience. In St. Thomas's view, we develop the

capacity to make true judgments of conscience by developing the

virtue of prudence, and we develop the virtue of prudence by

doing good deeds. The way to improve the accuracy of our

judgments of conscience is thus by reducing or eliminating the evil

that we do, and increasing the good that we do. Spiritual theology

is the discipline that studies how to increase our capacity to do

good. It is by putting spiritual theology into practice that we

improve the accuracy of our judgments of conscience, and the

subject matter of spiritual theology-grace, virtues, gifts, prayer,

sacraments, and other means of sanctification-describes the

principal causes of accurate judgments of conscience.

For moralities of conscience, as we have seen, the conscience

is an independent faculty of the theoretical intellect. Its

development need not as such result from growth in holiness, and

the study of growth in holiness is not the study of the means for

improving judgments of conscience; the manuals of casuistry do

not command acquisition of holiness as a preliminary to understanding the truth of the solutions they propose. In keeping with

the imperative basis of moral law in moralities of conscience, the

study of growth in holiness comes to be thought of as principally

the preserve of those who have undertaken an obligation to

attempt such growth, by vowing themselves to the religious life.

This consequence of moralities of conscience for the study of

good actions had an equivalent result on attitudes to the 

CONSCIENCE, FREEDOM, RIGHTS 191

performance of good actions. Saint Thomas's position is that the

pursuit of perfection is a matter of precept for all Christians,

and follows from the two great commandments of love of

God and love of neighbor (STh 11-11 q. 184 a. 3: cf. Deut 6:5;

Lev 19:18; Matt 22:40). Perfection thus does not, in his view,

consist in the following of the evangelical counsels; these counsels

indicate ways to remove impediments to the attainment of the end

of perfection that all Christians must seek, but they are not

necessary for the attainment of this end. This position cannot

however be accommodated to moralities of conscience, which

conceive of the law that Christians are required to obey as

consisting in imperatives that require performance of or

abstention from specific kinds of actions. If a command to seek

perfection is understood in this way, rather than as a command to

pursue a particular end (which is how St. Thomas understands it),

there must be specific actions that the command mandates. These

actions could not fail to include the actions indicated by the evangelical counsels-voluntary poverty, chastity, and obediencewhich are indicated in the Scriptures as the best path to

perfection. But the evangelical counsels are counsels and not

commands. Since a command to seek perfection, in the

framework of moralities of conscience, would thus have to

command performance of the evangelical counsels, these

moralities cannot admit such a command-a command that, in

addition, is quite opposed in spirit to probabilism's claim that

minimizing the scope of moral obligation is a positive good.

The acceptance of moralities of conscience within the Church

thus led Catholics to believe that the pursuit of perfection,

identified with the following of the evangelical counsels, was the

goal of religious, while the requirement for the laity was simply

to save their souls by keeping the Decalogue. This view is

exemplified in the (in many ways excellent) textbook of

Tanquerey:

for the faithful in the world there is no other obligation than that of preserving

the state of grace. However, the question is precisely whether they can preserve

the state of grace for a long time without growing in holiness .... in the state of 

192 JOHN R. T. LAMONT

fallen nature, one cannot for a long time remain in the state of grace without

striving at the same time to make progress in the spiritual life and to exercise

oneself from time to time in the practice of some of the evangelical counsels. It

is only in this restricted sense that we maintain the obligation of perfection for

ordinary Christians .... To strike the target, we must aim above it.20

In addition to the principles of moralities of conscience, there is

a line of argument that usually underlies this view. It takes this

form: (i) the obligation for all Christians is to seek salvation; (ii)

those Christians who do not commit mortal sins, or repent for the

mortal sins they have committed, will be saved; (iii) therefore, the

obligation for all Christians is to avoid mortal sin and repent for

mortal sins committed. This argument is superficially plausible,

but is not in fact valid, because the second premise refers to what

Christians actually do, but the conclusion refers to what

Christians pursue as their obligation. Telling the laity that they are

not obliged to follow the divine command to seek perfection is

obviously a very serious deviation from the truth, with crippling

spiritual results for lay Catholics. 21

The problem of scrupulosity is part of the explanation for the

emergence of probabilism. Medieval thinkers held that if one had

objectively serious reasons for doubting about whether or not an

action was a sin, it was sinful to do it; thus, for example, if one

were not sure that a sum of money belonged to one, it was sinful

to take it (they of course did not hold that this was true for

situations where every possible alternative might be sinful). The

framework of moralities of conscience does not permit the general

application of this sensible and correct principle. Since such

moralities conceive of the law of nature as a set of imperatives

governing kinds of action, and since these imperatives are not in

fact sufficient to specify what should be done, the scope of doubt

about the sinfulness of actions is extremely wide. If the medieval

principle were adopted, such doubt would rule out all the actions

20 Adolphe Tanquerey, The Spiritual Life: A Treatise on Ascetical and Mystical Theology,

2"d rev. ed., tr. Herman Branderis (Tournai: Desclee & Co., 1930), 176-77, 180.

21 For defence of the claim that the pursuit of perfection is required of all Christians, see

Reginald Garrigou-Lagrange, Perfection chretienne et contemplation selon s. Thomas d'Aquin

et s. Jean de la Croix (Montreal: Milicia, 1952), vol. 1, ch. 3, art. 5, 215. 

CONSCIENCE, FREEDOM, RIGHTS 193

whose moral status is not adequately settled by moralities of

conscience-which would impose an intolerable burden.

To avoid imposing such a burden, the probabilists made use of

the division of actions between conscience and freedom that is

central to moralities of conscience. Suarez argued that in a case of

doubt, it should be assumed that the condition which is in

possession should have the burden of proof in its favor; and hence

that freedom, as being a good possessed by men, deserves that

favor. But law is doubtful when it has not been sufficiently

promulgated, and a doubt on the part of the reason about an

action's being commanded by a law means that that law has not

been sufficiently promulgated (De bon. et mal. hum. act., <lisp.

13, sect. 5). Doubt about a law thus leaves freedom in possession.

The basic structure of probabilism is completed when to this view

is added the idea that a doubt is justified by a probable opinion in

favor of the doubt, and that an opinion counts as probable not

only when good reasons can be given for it, but also when a

recognized authority rules in favor of it. The former kind of

probability was described as intrinsic probability and the latter as

extrinsic probability. Extrinsic probability soon came to play a

larger role than intrinsic probability in questions of doubt, which

contributed greatly to the Catholic identification of good behavior

with obedience to authority. The basic structure of probabilism

became complicated by various modifications and exceptions

designed to answer objections or accommodate condemnations by

Church authorities, but this structure persisted, and remained

influential as long as moralities of conscience dominated the

scene. 22 Its usefulness in dealing with scrupulosity contributed to

its appeal. 23 The premise used by Suarez should be noted, as it is

extremely important. It claims that freedom of choice is a good as

such, rather than being good on account of its making possible the

22 The best account of probabilism is still Th. Deman, "Probabilisme," in Dictionnaire de

theologie catholique. Henry Davis, S.J., wrote in 1941 that "the tendency of the great majority

of modern theologians is towards the gentler and more liberal system," i.e. probabilism

(Henry Davis, S.J., Moral and Pastoral Theology, vol. 1, Human Acts, Law, Sin, Virtue

(London: Sheed and Ward, 1941), 86.

23 See Davis, Moral and Pastoral Theology, 1 :94. 

194 JOHN R. T. LAMONT

choice of what is good. The notion of autonomy as an intrinsic

good can thus be partly traced back to probabilism.

In an earlier article, 24 I criticized the probabilist approach to

faith for presenting as a positive good the opportunity to avoid

acquiring important knowledge. It is apparent that this criticism

can be generalized to the probabilist approach as a whole.

Probabilism describes the natural law as making us worse off in

some respect, through infringing our freedom. It is however

absurd to claim that the natural law can make us worse off in any

way at all, because the natural law indicates how we are to attain

our good. Thus, the Psalms describe the law of the Lord as

delightful (Ps 1:2), and sweeter than honey (Ps 19:10), which is

scarcely compatible with the probabilistic view. The exposition of

probabilism given here indicates why probabilism leads to this

absurd conclusion: that is, because it incorporates false

conceptions of law, conscience, and freedom.

E) Moralities of Conscience and Reforms

Probabilist assumptions explain much of the approach to

Church reform of the nouvels theologiens. The keystone of this

approach was the supposition that the Church had failed to

evangelize her secular opponents in European society because she

had put them off by her intransigence, her following a "logic of

confrontation that opposed truth to truths, faith to beliefs. "25 The

course that needed to be followed was therefore to reduce as far

as possible any such confrontation, in order to reduce prejudice

and animosity and to make people open to hearing the Catholic

message. Contrary to history, common observation, and

sociology, 26 this approach stemmed from the probabilist assump24 See John R. T. Lamont, "Determining the Authority and Level of Church Teaching,"

The Thomist 72 (2008): 376-77.

25 Etienne Fouilloux, Une Eglise en quete de liberte (Paris: Desclee de Brouwer, 1998), 215;

Fouilloux gives a useful description of this approach and its supporters.

26 For the sociological evidence against it see the work of Rodney Stark, particularly

Rodney Stark and Roger Finke, The Churching of America, 1776-2005: Winners and Losers

in Our Religious Economy (New Brunswick: Rutgers University Press, 2005). This evidence

is not Stark's debatable market analysis of the success and failure of religious groups and 

CONSCIENCE, FREEDOM, RIGHTS 195

tions of its adherents. If an obligation is stubbornly resisted, and

resisted for a long time by an increasing number of people, that

gives some grounds for thinking that it is too strict and needs to

be relaxed. A probabilist approach will then suggest relaxation as

the ideal option to take-indeed, it will treat the attempt to resist

such relaxation as blameworthy and an act of oppression. In

general, it will see any form of confrontation and command as at

best a necessary evil. The notion of externally probable opinions

also had the effect of creating an attitude according to which the

permitting of an opinion that denied the existence of some

obligation would in itself remove the obligation, without taking

into account the intrinsic reasons in favor of the obligation. This

dispensed reformers from any need to give serious consideration

to the reasons given for a "logic of confrontation," once they had

succeeded in banishing that logic.

It should be underlined however that the reformers were

attempting to answer an important question that was not being

adequately addressed. Why is it that the Church since the

Enlightenment has been steadily in retreat, and that all her

attempts to recover lost ground have ultimately ended in failure?

This question is all the more pointed because the disasters that

resulted from the Enlightenment project-the crimes of the

French Revolution and of Communism-should have put the

Church in a position to regain ground. Explaining this retreat as

simply due to a general increase in human sinfulness is not

satisfactory. The Church has the mission and the power to

sanctify, and a general long-term increase in sinfulness suggests

some interference with the exercise of that power. The fact that

the reformers misunderstood the nature of that interference does

not mean that there is no interference to be understood and

removed. This discussion of moralities of conscience, together

with the discussion of subjective rights in the next section, will put

us in a position to answer this question.

religion itself, but his well-established claim that a religious group must differentiate its

members from its nonmembers in important ways, and make significant demands on its

members, if it is to thrive and expand. 

196 JOHN R. T. LAMONT

This wholesale dismissal of four hundred years of Catholic

moral theology perhaps requires some defence. One might ask the

general question why, if moralities of conscience are as bad as all

that, it was possible for the Church, guided as she is by the Holy

Spirit, to go so far wrong for so long? And one may ask the

particular question how the Church could have canonized St.

Alphonsus Liguori, declared him a Doctor, and officially taught

that his solutions to moral questions were safe to follow? Saint

Alphonsus, after all, worked within the framework of moralities

of conscience. If such moralities are wrong, his approach must be

wrong, and he should not have been given this endorsement.

The answer to the question about St. Alphonsus is that his

approach of equiprobabilism, by requiring that one begin by

determining whether command or freedom should be treated as

in possession, allowed reasoning about the actual moral issue to

return to moral reflection through the back door. Partly as a

result, his personal solutions to moral dilemmas were

distinguished by good judgment. The answer to the question

about moralities of conscience in general is that a key component

of them, the casuistic method, could in fact be made to serve some

useful purposes. If the general population are to be practicing

Catholics, the spiritual life of the majority of that population will

inevitably consist in a struggle to keep the Ten Commandments.

The emphasis on the confessional as a means of spiritual

formation was a realistic and necessary approach to this situation.

And for the narrow task of training confessors-as opposed to the

broader task of indicating how Christians should live-casuistry,

the practical fruit of moralities of conscience, was useful. The one

task that casuistry performs more or less adequately, that of

judging whether or not actions are intrinsically wrong, is the

principal task that confessors must undertake.

This emphasis on the confessional was a result of one of the

postive features of the Counter-Reformation period: its attempt

to develop a serious commitment to the Christian life in the whole

Catholic population. This attempt was the ultimate fruit of the

decisive step made by the Fourth Lateran Council, of requiring 

CONSCIENCE, FREEDOM, RIGHTS 197

every Christian to go to confession at least once a year. James

Franklin remarks that

The decree requiring confession was soon obeyed almost everywhere, and the

effect on the European soul was profound. The mere effort to classify a year's

sins was a greater demand for abstract thought than the common man or woman

had experienced before. Guilt flourished, though without as much diminution

as might have been hoped in things to be guilty about. Sin and conscience

became prominent topics of study. 27

There is an obvious connection between this decree and the

eventual replacement of the virtues by the commandments as the

basis for moral catechesis during the Middle Ages. This

replacement was part of the struggle to move away from the

situation in the early Middle Ages, when the Church was content

to leave most of the population in a barely catechized, semi-pagan

state. The development of moralities of conscience, and the

eclipse of the virtues and of St. Thomas's theology of them, was

thus partly an unfortunate side effect of a basically correct policy.

F) Influence of Moralities of Conscience outside the Church

Having set forth the conception of conscience in moralities of

conscience, we may easily describe the secular idea of conscience

in European culture that grew out of these moralities of conscience. Emancipated from the Church, this idea preserves the

notion of conscience as an authority whose endorsement of an

action makes it a good thing to do, but drops the notion of

submission to a confessor or to external probability, and eventually drops the notion of submission to God. The limited use

made by moralities of conscience of goodness founded in natural

teleology is rejected as well. The importance of this development

27 James Franklin, The Science of Conjecture: Evidence and Probability before Pascal

(Baltimore: The Johns Hopkins University Press, 2001), 66. 

198 JOHN R. T. LAMONT

has been underlined by Alasdair Macintyre. 28 Oliver O'Donovan

describes the evolution that followed:

Moralists of the seventeenth and eighteenth centuries simply gloried in the

absolute authority with which conscience, displaying, as they thought, its rational

character as well as its divine institution, presided over the vacillations of the will

and the ambiguities of judgment .... The tribute that had too often to be paid

to the categorical authority of subjective moral reason was the paralysis of reason

or the frenzy of exaggerated scruple.

The eighteenth-century reaction to this, anticipating the emergence of

voluntarism as the dominant force in modern moral philosophy, was to deny the

competence of reason to pass moral judgments, and to attribute them instead to

'affection' or 'sentiment'. 29

The notion of conscience, in this situation, naturally passed into

subjectivism and egotism-as it did with Rousseau, a central figure

of the Enlightenment. 30 By helping to deceive Rousseau about his

own moral character, this notion also made an important

contribution to his belief in the natural goodness of humanity,

another keystone of the Enlightenment.

II. SUBJECTIVE RIGHTS VS. OBJECTIVE RIGHT

A) The Aristotelian Conception of Objective Right

The essential work on the notion of human rights is that of the

French scholar of jurisprudence Michel Villey, one of the most

important Catholic thinkers of the twentieth century. Knowledge

of Villey's thought has suffered from the fact that his taking up

28 Alasdair Macintyre, After Virtue: A Study in Moral Theory, 3rd ed. (Notre Dame:

University of Notre Dame Press, 2007). Scientific rejection of Aristotelian physics has been

given as a justification for rejecting natural teleology. For criticism of the view that rejection

of Aristotle's physics requires rejection of broadly Aristotelian metaphysics, see John Lamont,

"Fall and Rise of Aristotelianism in the Philosophy of Science," Science and Education 18

(2009): 861-84.

29 Oliver O'Donovan, Resurrection and Moral Order, 2d ed. (Grand Rapids: Eerdmans,

1994), 118. O'Donovan himself advocates a view similar to St. Thomas's: "the authority

attributed to reason is more properly understood to belong to reality" (ibid., 120).

30 On Rousseau and conscience, see the remarks of Servais Pinckaers in "Suivre sa

conscience," in Servais Pinckaers, L'Evangile et la morale (Paris: Editions du Cerf, 1990). 

CONSCIENCE, FREEDOM, RIGHTS 199

the cause of St. Thomas's understanding of rights got fully

underway in the 1960s, a time when the notion of ressourcement

was being buried in ecclesiastical circles, and when the Catholic

intellectual world was generally following this ecclesiastical trend.

As a result his work remains largely untranslated into English, 31

and is not widely known outside the French-speaking world. 32

Although there are modifications and additions that can be made

to his position, its essential structure is correct, and is indeed

susceptible of expansion in ways that illuminate the situation of

the Church today and of the world she finds herself in.

It has become commonplace to observe that the notion of

human rights is unknown in many non-European cultures. Villey's

work both reveals the limitations of this observation and indicates

the truth that lies behind it by drawing a distinction it does not

draw, namely, that between objective right and subjective rights. 33

It is subjective rights that are the product of a peculiarly European

development, that have come to dominate legal and political

thought and practice about rights, and that have been faced with

a few dissenting voices who have attacked that dominance.

Because the idea of a right to religious liberty developed after this

dominance was established, the notion of subjective right is crucial

to the question of religious liberty.

The basic difference between objective right and subjective

right is that an objective right is a relation, obtaining between

specified individuals and/or groups and/or things; a subjective

31 A few of Villey's works are accessible in English; see "Epitome of Classical Natural

Law," Griffith Law Review 9 (2000):74-97; "Epitome of Classical Natural Law (part II),"

Griffith Law Review 10 (2001): 153-78; "Law in Things," in Controversies about Law's

Ontology, ed. Paul Amselek and Neil McCormick (Edinburgh: Edinburgh University Press,

1991), 2-12.

32 The power of his scholarship and thought has compelled some response to his views

from Francophone opponents of his ideas. See, e.g., Luc Ferry and Alain Renaut, Philosophie

politique 3: Des droits de l'homme a l'idee republicaine (Paris: Quadrige/PUF, 1984), 47ff.

Ferry is the grandson of the anticlerical and imperialist minister of the Third Republic Jules

Ferry, and was as Minister of Education from 2002 to 2004 charged with implementing the

policy of banning the wearing of religious symbols in French state schools. I defend Villey

against such criticisms in "In Defence of Villey on Objective Right," forthcoming.

33 Villey uses the plural for subjective rights and the singular for objective right, a useful

device that will be adopted in this article. 

200 JOHN R. T. LAMONT

right is a monadic property of an individual, a property that

serves as a basis for determining just relations into which the

individual can enter. A description of the development of these

two conceptions of rights will cast light on their relative merits,

as well as their content.

The concept of objective right was elaborated briefly, but fairly

completely as to its essentials, by Aristotle in book 5 of the

Nicomachean Ethics. In developing his views on this topic,

Aristotle built on reflection on politics in Greek philosophy

generally, a reflection that held a central place in Greek philosophical thought, and on his own considerable involvement and

research in political questions. His thought is the culmination of

ancient Greek political thought, which makes it a central part of

the culmination of ancient Greek thought as a whole. The first step

in its elaboration is the distinction that Aristotle draws between

general and particular justice. General justice is simply the virtue

of an individual in so far as that virtue has any bearing on the

common good. Because being virtuous in one's behaviour towards

others is the most difficult form of virtue, possession of general

justice is simply possession of complete virtue (Nie. Ethic.

5.2.1130b18). General justice is the object of the law, which has

as its function the promotion of the common good, and thus of

virtue as a whole (Nie. Ethic. 5.1.1129b15-20).

Aristotle asserts that there is a further kind of justice, the

pursuit of which will fall under the pursuit of general justice, but

which is not the same as general justice. This is particular justice.

Its object is not virtue as a whole, but to dikaion, "that which is

just." This neuter expression, to dikaion, is distinguished from the

masculine ho dikaios, which refers to the just man, and from

dikaiosyne, which refers to the virtue of justice. To dikaion is not

a person or an action, but an external object, a relation; it consists

in a distribution of goods or burdens, or a rectification of

injuries. 34 The just distribution is a distribution that is equal, but

not one that is equal in the sense of every individual receiving the

34 Cf. Sarah Broadie, "Philosophical Introduction," in Aristotle, Nicomachean Ethics, trans.

Christopher Rowe (Oxford: Oxford University Press, 2002), 36. 

CONSCIENCE, FREEDOM, RIGHTS 201

same thing. It is determined by a proportional equality. This

entails, for distribution, that the ratio between the good contributed and received by one person will correspond to the ratios

of goods contributed and received by others (Nie. Ethic.

5.3.1131a30-b24). For rectification, it entails that the imbalance

between injured and injurer created by an injury is restored by a

balancing removal of good from the injurer and conferring of

good on the injured. This notion of proportion (analogia) is what

is common to the various forms of just relation, whether found in

distribution, in compensation, or in exchange. What the virtue of

particular justice demands is that such relations be brought into

being.

These relations are not in Aristotle's view things that are or can

be the object of philosophical discovery-merely of philosophical

clarification. The proportions that determine them simply make

precise our prephilosophical notion of what is just and fair. This

notion is something that all people in practice assume and appeal

to-at least where their own interests are concerned-and it must

govern the settlement of disputes if societies are to function

properly.

The bringing into being of such relations through the doing of

a just act is clearly distinguished by Aristotle from the relation that

is actualized (Nie. Ethic. 5.7.1135a8-11). This distinction is

explicated by Aristotle's explanation of the difference between a

just thing and a just act: a just act occurs when a just thing is

brought into being voluntarily (Nie. Ethic. 5.8.1135a17-1136a9).

This explanation should not be understood in terms of the later

distinction between an action with a materially but not formally

good object, and an action with a formally good object. This later

distinction applies solely to actions, not to actions and the

relations they bring into being. The sort of goodness that

characterizes an action with a materially but not a formally good

object cannot be described as the kind of goodness that a formally

good action aims to bring about, but the goodness of a just thing

is the goodness that a just action aims to bring about. 

202 JOHN R. T. LAMONT

To dikaion can be either natural or legal. Despite the existence

of natural justice, however, justice in the strict sense exists only

between members of the same political community (Nie. Ethic.

5.6.1134a25-34); between members of different political communities only a certain likeness of justice can exist (Nie. Ethic.

5 .6.1134a28-30). There is natural justice in a political community

because the political community exists by nature, and is in fact

prior to the family and the individual (Politics 1.2.125 3a2, 19),

something that is proven by the fact that the individual cannot

exist independently of a political community (Politics

1.2.1253a25). There is not however a single just structur.e that

such a community should take. Aristotle provides a survey of the

possible forms in his Politics. Although he believes that there is a

best possible form of society considered in itself-best in that it

has the greatest capacity to realise the goods that the city exists

for-he thinks that the form that is the best for a given set of

circumstances varies with the circumstances. The nature of to

dikaion is dependent on the particular form that community takes.

It is not like fire, which burns in the same way in Greece and in

Persia. The fact that to dikaion emerges from a natural structure

embeds it in the order of the cosmos as a whole.

Fred Miller has made a strenuous attempt to argue that for

Aristotle the central meaning of to dikaion is one of the forms of

'right' delimited by W. H. Hohfeld, namely, the form in which X

has a right in the sense of having a claim to A against Y. 35 It is

obvious that to dikaion, understood as a relation, forms the basis

for a just claim. But it is quite impossible that to dikaion,

considered as the object of the particular justice that is being

discussed in chapters 2 to 8 of book 5 of the Nicomachaean

Ethics, should be such a claim. To dikaion is a relation between

several terms, as Aristotle explains at length, whereas a just claim

is not the relation itself, but a given individual's standing in that

relation . Miller himself does not stick to the Hohfeldian notion

35 See Fred D. Miller, Jr., Nature, Justice, and Rights in Aristotle's Politics (Oxford: Oxford

University Press, 1995), 106; idem, "Aristotle and the Origins of Natural Rights," The Review

of Metaphysics 49 (1996): 882. Miller's claim is criticized in Malcolm Schofield, "Sharing in

the Constitution," The Review of Metaphysics 49 (1996): 831-58. 

CONSCIENCE, FREEDOM, RIGHTS 203

in his exposition of Aristotle, remarking that in the context of

disputation (amphisbetesis) "just things are the things which one

party claims justly against another party"; 36 clearly a thing, and

the claim that one has to that thing, are distinct.

Aristotle's conception of objective right, Villey claims, became

central to Roman law, where it constituted the chief meaning of

the term ius. 37 It did not however become integrated into patristic

theology, which took little note of Aristotle, and which

experienced its first great flourishing at a time when the Roman

law was moribund. The Seri pture-centered thought of the Fathers

produced, in the Latin world, an Augustinian view of law that saw

it as deriving ultimately from the Scriptures-a view whose appeal

to theologians derived partly from the support it gave to clerical

supremacy. 38

B) Saint Thomas on Objective Right and Natural Law

Saint Thomas, after encountering Aristotle's conception of

objective right, rejected this Augustinian position, and gave a place

in Christian thought to Aristotle's understanding of justice-a task

that he only undertook fully in the Summa Theologiae. In addition

to Aristotle, he was influenced by Roman law, with which he was

familiar, and to whose revival he contributed. 39 Both his

acceptance of the value of a legal system of pagan origin, and his

assertion that the juridical precepts of the Old Covenant were

abrogated by Christ without being replaced by new ones (STh 1-11,

q. 104, a. 3), struck at the root of the Augustinian system. They

36 Miller, Nature, Justice, and Rights, 882.

37 Villey's work on the whole question of objective and subjective rights began with his

arguing that subjective rights did not exist in Roman law. Natale Rampazzo gives an overview

of scholarly reaction to Villey's claim about Aristotle's conception of objective right being

central to Roman law in "Critique de la lecture villeyenne du droit romain: Le droit subjectif,"

in Michel Villey: Le juste partage, ed. Chantal Delsol and Stephane Bauzon (Paris: Dalloz,

2007). He concludes that the reaction is generally favorable.

38 See Michel Villey, La formation de la pensee juridique moderne (Paris: Quadrige/PUF,

2003), 133-38.

39 See Michel Villey, "St. Thomas et l'immobilisme," in Michel Villey, Seize essais de

philosophie du droit (Paris: Dalloz, 1969), 97-100; and Jean-Marie Aubert, Le droit romain

dans /'oeuvre de Saint Thomas (Paris: Vrin, 1955). 

204 JOHN R. T. LAMONT

constituted a rehabilitation of nature and natural reason as the

deciding factors in the determining and identification of justice.

Saint Thomas, unlike Aristotle, inherited an account of

morality characterized in terms of the divine law. This enabled

him to make a clearer and more elaborate distinction between

morality and law than is to be found in Aristotle-a distinction in

which his fidelity to the Aristotelian conception of particular

justice emerges sharply. Saint Thomas discusses law, lex, in the

Prima Secundae. There he situates the natural law in the context

of a discussion of the essence of law, and of the eternal law, which

is the divine wisdom moving all things to their due end. The

principles of the natural law are the principles that are grasped by

synderesis (STh 1-11, q. 94, a. 1, ad 2). They bear upon the actions

of an individual who exercises practical reason, and govern the

goodness of individual actions and of the persons who perform

those actions. They are the principles of morality.

Saint Thomas discusses justice and its object-ius-in a

completely different part of the Summa, the Secunda Secundae. It

is in the discussion of ius in the Secunda Secundae, not in the

discussion of lex in the Prima Secundae, that St. Thomas considers

those topics that are the concern of legal systems, topics such as

theft, murder, justice in exchange, and justice in the distribution

of goods. Following Roman law, he uses ius to express the

content of Aristotle's expression to dikaion. He defines ius as a

relation that involves a certain kind of equality, as for example the

giving of a just reward for a service rendered (STh 11-11, q. 57, a.

1). Ius is a principle of moral conduct, in that it is the object of

the virtue of justice, but it differs from the objects of other virtues

in that it is an external object: "as the object of justice is an

equality in external things, so the object of injustice is an

inequality" ("sicut obiectum iustitiae est aliquid aequale in rebus

exterioris, ita etiam obiectum iniustitiae est aliquid inaequale"

[STh 11-11, q. 59, a. 2]).40 The character of ius as an external object

is argued for in question 58, article 10 of the Secunda Secundae.

40 St. Thomas Aquinas, Summa theologiae, vol. III (Madrid: Biblioteca de Autores

Cristianos, 1956), 403. 

CONSCIENCE, FREEDOM, RIGHTS 205

This relation of equality in external things is the proper matter of

the virtue of justice (STh 11-11, q. 58, aa. 1, 10).

The objects of the other virtues are described in relation to the

agent, but since ius, the object of justice, is an external object, it

is defined independently of the intentions of the agent in bringing

it about (STh 11-11, q. 57, a. 1). To get the moral attribute which

is the virtue of justice, we must add to the notion of bringing

about just relations in external objects the intention of bringing

them about because they are just, and the constant disposition to

bring about such just relations because they are just. This is

expressed in the definition that St. Thomas offers for the virtue of

justice: "justice is the constant and perpetual will to render to

each person his due" ("iustitia est constans et perpetua voluntas

ius suum unicuique tribuens" [STh 11-11, q. 58, a. 1])41-a

definition taken from the Digest of Justinian (lib. 1, tit. 1, leg. 10).

The connection between ius and moral obligation for St. Thomas

can be illustrated by an analogy. A good parent will provide for

the health of his child; this is a moral obligation. But this moral

obligation does not as such determine what a child's health

consists in, or what will promote it. The nature of health is an

external reality that provides the object for virtue, but is not

derivable from moral principles alone (cf. STh 1-11, q. 94, a. 3).

The character of ius as an external object provides the answer

to a question that on examination is deeply puzzling: Why should

there be four cardinal virtues? Prudence gives knowledge of what

it is good to do; fortitude prevents the agent from being deterred

by pain from doing what is good; temperance prevents the agent

from being allured by pleasure away from what is good. These

three virtues, it seems, ought to suffice to produce good action,

since the action of the three of them together provide knowledge

of what is good and leave the agent with no motivation, and thus

no capacity, to do anything except what is good. A fourth cardinal

virtue ought not to be needed. The point of postulating justice as

a fourth virtue is to acknowledge the existence of a good whose

nature cannot be determined from the first principles of practical

•

1 Ibid., 388. 

206 JOHN R. T. LAMONT

reason alone, because it depends not just on the end of the

individual agent but also on the end of the society that the agent

belongs to. That the end of society is a good to be pursued by the

individual is of course given by these first principles; but these

principles do not specify what this good is in the way they do for

the other goods.

Saint Thomas connects ius to law, lex, in several ways. The

relation of ius to the eternal law stems from the fact that God is

the creator, and that he has brought into being a creation whose

end is for the sake of his glory, and whose parts all have ends that

concur for the good of the whole creation. The moral law, which

governs the individual, stems from the end, the telos, of the

individual. Objective right, ius, is given not by the nature of

individuals as such, but by the nature of the human societies in

which individuals find themselves. Human societies are natural

entities in their own right, not simply products of the wills of

their members, and as such possess an end that stems from their

nature. This end is related to the ends of the individuals who

compose the societies, since man is the most social of all animals, 42 and is also connected to the end of the universe as a

whole, and the ends of the other parts of the universe to which it

is related. 43 The eternal law is thus expressed by ius, because ius

is the good of the things that are human societies-things that are

created by God with the purpose of making their distinct

contribution to the glory of his creation. Although these things are

distinct from the individuals that make up societies, the social

nature of these individuals means that the good of these things is

an aspect of the good of their individual members.

C) Objective Right and Human Law

!us falls in its entirety under the divine law, but ius and human

law are not coextensive. Human law necessarily falls short of ius.

42 See, e.g., St. Thomas, I Polit., lect. 1 (36-37) (St. Thomas Aquinas, In libros Politicorum

expositio, ed. R. Spiazzi [Rome: Marietti, 1951], 11).

43 On the metaphysical picture underlying objective right, see Michel Villey, "Historique

de la nature des choses," Archives de philosophie du droit 10 (1965): 267-83. 

CONSCIENCE, FREEDOM, RIGHTS 207

It is not possible for human laws to be so framed as to cover all

cases, because of the limitations of human wisdom. Even if it were

possible, it would be inadvisable, because the resulting laws would

be too unwieldy (STh I-II, q. 96, a. 6, ad 3). Laws are suitably

framed when they command what is for the common good in the

majority of cases; in exceptional cases, where the common good

is incompatible with the law, the law should not be followed. In

such exceptional cases departing from the law should not be

considered as breaking it, since such departure is acting in

accordance with the will of the lawmaker, as Aristotle asserted

(Nie. Ethic. 5.10.1137b11-35; see also STh 11-11, q. 120).

It follows from this conclusion that the office of the judge is

not simply to apply the human law. The law is one factor that the

judge is to take into account in determining what is just, but it is

not the only one. He must consider both positive ius, which is

created by being contained in human written law, and natural ius,

which may be enshrined in human law, but is not created by it

(STh 11-11, q. 60, a. 6), together with other factors such as custom

(STh I-II, q. 97, a. 3)-both because of the possible need to depart

from the letter of the law, and because of the fact that human law

in itself cannot provide a decision-making procedure for settling

even those nonexceptional cases where it need not be departed

from. These other factors are what provide the additional material

that enables the judge to come to a decision. The object of

iudicium, the judge's act, is not to command, as is the case with

law (STh I-II, q. 90, a. 1, ad 3), but to declare what the right

relation is. The imperative and compulsive actions of a legal

system follow from this act, but are not identical with it. The role

of the judge is another indication of the way in which ius is

distinct from morality in St. Thomas's view. The moral virtue of

justice belongs to everyone, but the office of declaring what is just

pertains to the judge (ibid., ad 3). This declaration is not a moral

judgment, because it bears upon the exterior object, the relation

that is ius ("justice concerns certain exterior operations" ["iustitia

est circa quasdam operationes exteriores"]) 44 independently of a

44 Madrid ed.,417; STh 11-11, q. 61, a. 3. 

208 JOHN R. T. LAMONT

moral evaluation of the people who enter in to that relation.

Villey illustrates this with an example;

It may be unjust, on my part, to profit from the clause of article 1341 of the Civil

Code, and to refuse to pay my debt on the grounds of my creditor's not having

a written title to it. But it is just for the judge to refuse to use the force of law to

enforce this debt, because the judge has to take into account not only my interest

(very unworthy, in these circumstances, of being protected), but also the interest

of third parties; and the interest of third parties requires a uniform method of

proof. 45

Villey acknowledges 46 that St. Thomas uses the words ius and lex

interchangeably on some occasions (e.g., STh I-II, q. 91, a. 3; I-II,

q. 94, aa. 4-5; I-II, q. 95, a. 4), but he points out that these are

cases where he is referring to recognized authorities who use these

terms interchangeably-St. Isidore of Seville, Gratian, or Cicero.

This is in line with St. Thomas's approach of respecting as far as

possible not only the thought but the language of such authorities,

and of not making use of uniform terminology himself. Saint

Thomas uses terms carefully, but he contents himself with making

their meaning clear in the particular contexts in which he uses

them, without trying always to use them in the same way. It is

clear from the definition of ius that he gives in the context of his

discussion of the virtue of justice that the meaning of ius, in this

context, differs from that of lex.

Villey points out that although St. Thomas distinguishes

between ius and morality insofar as morality, unlike ius, has for

its proper object the good of individuals, he does not hold that the

two are independent. In addition to the fact that acts of virtues

other than justice, such as temperance or fortitude, can be

commanded by justice on account of the common good-a

command that demands exercise of the virtue of general

justice-St. Thomas insists on a regulatory function for morality

with regard to law. Any law that contradicts the Decalogue, for

41 Michel Villey, "Abrege du droit nature! classique," in Let;ons d'histoire de la philosophie

du droit (Paris: Dalloz, 1962), 126.

46 Michel Villey, "Bible et philosophie greco-romaine: De saint Thomas au droit

moderne," Archives de philosophie du droit 18 (1973): 31-32. 

CONSCIENCE, FREEDOM, RIGHTS 209

example, such as a law commanding idolatry, is an act of violence

rather than a law, and must not be observed (STh 1-11, q. 96, a. 4).

This seems initially puzzling. How is it, given this position, that

St. Thomas can insist not only that every just law has exceptions,

but also that there can be no universally just laws, due to the

changeability of human nature and the consequent variations

among human societies? "A rule ought to be enduring in so far as

possible. But in changeable things there cannot be anything that

is wholly lasting, and therefore human laws cannot be entirely

unchanging" ("Mensura debet esse permanens quantum est

possible. Sed in rebus mutabilibus non potest esse aliquid omnino

immutabiliter permanens. Et ideo lex humana non potest esse

omnino immutabilis" [STh 1-11, q. 97, a. 2, ad 2]) But if, as St.

Thomas holds, 47 there are actions that can never rightly be done,

why can there not be laws that are unchangeable and universally

applicable because they forbid the doing of such acts?

The solution of this puzzle is that when he talks about laws as

mutable, he has in mind their function of contributing to the

determination of ius. This function cannot be performed by universal rules, because the external relations that are iura inevitably

vary according to circumstances. As Villey remarks, in response to

criticism of his agreeing with St. Thomas on the mutability of law:

Ius, in the strict sense, is the proportion of "exterior" goods and obligations

divided between the citizens of a given political group. . . . It is in fact on the

exact content of the share of each person in these goods and obligations, and on

the foundation of the division between them, that legal cases are brought, and

that the system of justice works to establish. . . . Is it not evident that the

divisions of goods, offices, or obligations in a social group changes according to

47 See e.g., De Malo, q. 15, a. 1, ad 5. There have been unconvincing attempts to show that

St. Thomas does not hold this. For criticism of these attempts, see Patrick Lee, "The

Permanence of the Ten Commandments: St. Thomas and His Modern Commentators,"

Theological Studies 42 (1981); John Finnis, Moral Absolutes: Tradition, Revision, and the

Truth (Washington, D.C.: The Catholic University of America Press, 1989); Servais Pinckaers,

Ce qu'on ne peut jamais faire: la question des actes intrinsequement mauvais: Histoire et

discussion (Paris: Editions du Cerf, 1986). 

210 JOHN R. T. LAMONT

changes in modes of life, economic conditions, political structures? Is this a

problem? Are we really dealing with a difference of opinion on this point? 48

The Decalogue does indeed give universal principles that tell us

that certain things are not just. But this does not contribute to the

positive task of determining iura, what is just; it simply tells us

that any ordinance that violates the Decalogue is not a law.

D) Eclipse of Objective Right

Saint Thomas's understanding of ius (henceforth "objective

right," to mark the distinction with subjective rights) did not meet

with general acceptance, running counter as it did to a very strong

Augustinian tradition. His notion of objective right eventually

passed from being controversial to being almost totally eclipsed,

as a result of two developments: (1) the return to an identification

of justice and individual morality, and (2) the development of

subjective rights rather than objective right as the theoretical basis

for justice. ("Individual morality" here refers to the moral

principles that follow from the goods of a human being considered as an individual-the goods whose essences are grasped in

synderesis, and that do not as such involve reference to the nature

of human society. The virtue of temperance, and the

incompatibility of drunkenness with temperance, are examples of

such principles of individual morality.) Villey sees these

developments as forming part of the foundation for the modern

world-and also as being disastrous mistakes.

The identification of justice and individual morality was a

return to the medieval view prior to St. Thomas, a view which can

be found in theologians and in Decretists such as Rufinus and

Huguccio. All of these treat justice as falling under the natural

48 Georges Kalinowski and Michel Villey, "La mobilite du droit nature! chez Aristote et

Thomas d'Aquin," Archives de philosophie du droit 29 (1984): 196 (my translation). Villey

usually talks of ius in terms of a division of goods, but he is aware that it involves a division

of punishments as well; he discusses punishment in "Des delits et peines dans la philosophie

du droit nature! classique," Archives de philosophie du droit 28 (1983): 181-203. He points

out that the ius of a parricide, in Roman law, was to be sewn up in a sack with a dog, a cock,

a viper, and an ape, and thrown into the sea. 

CONSCIENCE, FREEDOM, RIGHTS 211

law, and the natural law as having the function of directing

personal morality. 49 A first step in this return is the work of

Scotus, who defends the traditional Augustinian claims that

earthly sovereignty and private property are a result of the Fall

rather than of human nature as such, and bases their postlapsarian

authority on divine positive law. 50 The return is completed in the

work of the baroque Scholastics, whose eclectic selection from the

positions of their predecessors ended up being dominated by

nominalist ideas.

One element of this work is the change in meaning of the term

"ius," in the sense of "id quod iustum est," in baroque commentaries on the Secunda Secundae. "Id quod iustum est" is

misrepresented by commentators such as Vitoria and de Soto as

meaning a just act, rather than the object that a just act aims to

bring about. With the disappearance of objective right as the

measure for the justice of the just act, another measure is needed,

and this is provided by conformity to the commands of the law.51

This change makes possible another element in the work of

subsuming justice under morality. Justice is defined by the law,

and as a result justice as well as law are discussed, in the

commentaries on the Summa that become the standard

theological instruments of baroque Scholasticism, not under the

heading of the discussion of ius and iustitia in the Secunda

Secundae, but under the heading of the discussion of lex in the

Prima Secundae. The baroque Scholastics recognized that basing

human law on the Scriptures, as the earlier Augustinians

attempted to do, is not feasible. They therefore attempted to base

it ultimately on the first principles of practical reason that are

given as the source of the natural law by St. Thomas in the Prima

Secundae. Since these principles are understood by St. Thomas as

49 Michel Villey, "Torah-Dikaion I," in Critique de la pensee juridique moderne: Douze

autres essais (Paris: Dalloz, 1976), 33-34. Villey refers the reader to the useful texts on the

natural law from Gratian to St. Thomas collected by Dom Odon Lottin in Psychologie et

morale aux XIIe et XIIIe siecles, vol. 2 (Louvain: Abbaye du Mont Cesar, 1948), but warns

against Dom Lottin's commentary.

50 See Villey, La fonnation de la pensee juridique moderne, 209-12.

51 Villey, "Bible et philosophie greco-romaine," 43, 46-48. 

212 JOHN R. T. LAMONT

the principles for morality, this gives a full philosophical

expression to the subsumption of justice and law under morality.

Villey identifies a clericalist motivation for this change. 52 Since

law emerges from morality, and theologians are the experts on

morality, it follows that theologians are the experts on law. In

Roman law, lay judges were the experts on ius. This change was

decisive for subsequent modern accounts of natural law, which

can be classified according to which of the basic inclinations

mentioned by St. Thomas in the Prima Secundae they give priority

to-for example, self-preservation in Hobbes and Spinoza, or

social life in Grotius and Pufendorf. 53 Lay jurisprudence, which

had become the predominant influence on law in the seventeenth

century, also moved towards a basing of law and justice on moral

principles. An important factor in this change was the revulsion

against Aristotle that characterized this epoch, and the preference

for Platonic or Hellenistic philosophy. Both of these philosophical

influences favored the subordination of law to morality, with

Cicero's influence being particularly significant in this regard. 54

The second development that led to the replacement of

objective right, the emergence of subjective rights, is often denied

by scholars-simply because they are unable to understand rights

as being anything other than subjective rights, and they cannot

believe that there was a period when no conception of rights

existed at all. Miller's interpretation of Aristotle on to dikaion,

criticized above, is an example of this outlook. This obtuseness

among intelligent researchers is evidence of the fundamental place

that subjective rights hold in the contemporary mind. The

difference between objective right and subjective rights is not in

itself difficult to grasp. Subjective rights are not relations, like

objective right, but monadic properties of individuals. As

originally formulated, they consisted in a power possessed by an

individual to act freely in some sphere. This power flows from the

human nature of the individual possessing the right, and gives to

52 Ibid., 42.

53 Ibid., 42-43, 50.

54 See Villey, La fonnation de la pensee juridique modeme, p. 3, c. 1, "La renaissance des

philosophies hellenistiques." 

CONSCIENCE, FREEDOM, RIGHTS 213

that individual an entitlement to act within that sphere, an

entitlement upon which no one can justly infringe. Subjective

rights are called natural rights because they are thought to be

conferred solely by the possession of human nature. Although

they are natural, they have consequences for legal systems. They

can be expressed in human law just as they are, without needing

significant interpretation, and human legal systems have an

obligation in justice to respect them. Although legislation should

recognize subjective rights, it does not create them. They do not,

like objective right, emerge from the structure of society as a

whole considered as a natural entity. Indeed, the strongest

theories of subjective rights hold that these rights are the basis for

political life. Like the electron shells of ions, which make it

possible for atoms to be connected into molecules and determine

how those molecules are structured, subjective rights are the

binding factors that join individuals together into political

communities, and that determine the just structure for political

communities. This is the claim of the Declaration of the Rights of

Man of 1789, asserting, as it does, that "the purpose of every

political association is the preservation of the natural and

imprescriptible rights of man" (article 2). This description of

subjective right is not an idiosyncratic notion of Villey's. It is the

conception of rights that is found in the principal seventeenthcentury theorists of rights, such as Hobbes and Locke, and that

our culture has inherited from them.

Villey holds that some general notion of subjective rights is

probably as old as egoism itself. An egotistic outlook makes it

natural to conceive of justice in one's relations to others in terms

of the free exercise of one's will.

It is natural to conceive of everything in terms of one's self, to press into the

service of one's self everything that pertains to the common good, and

accommodate it to the needs of one's egoism. And thus it is probable that the

notion of subjective right has had some existence in all times. 55

55 Michel Villey, "Droit subjectif I," in Villey, Seize essais de philosophie du droit, 140. 

214 JOHN R. T. LAMONT

An embryonic conception of subjective rights can also be found in

ancient philosophies that take the individual as their sole starting

point. 56 The use of subjective rights as the basis for a full-fledged

political philosophy, however, was chiefly the fruit of two

developments: the elaboration of an explicit definition of

subjective rights by William of Ockham, and the elaboration by

Thomas Hobbes of a theory of human society to replace the

Aristotelian one.

E) Genesis of a Philosophical Account of Subjective Rights

The debate over Franciscan poverty was the occasion, and to

some extent the inspiration, of Ockham's theory of subjective

right. 57 To obey their founder's injunction that they not possess

any property, and at the same time to provide for their practical

needs, the Franciscans had arranged with the Holy See that the

pope should own all Franciscan priories and other things used by

the order, while conceding to the Franciscans the right of using

these things. This arrangement was codified by Nicholas III, a

friend of the order, in the bull Exiit qui seminat, which accepted

the proprietas of these things while conceding to the Franciscans

only the simplex usus facti of them-a use which was not a right,

a ius utendi, and thus could not be a form of property. The

arrangement fell apart as a result of John XXII's disputes with the

Spiritual Franciscans over their claim that the way of life of Christ

and the apostles involved the ownership of no property at all. In

his bull Quia vir reprobus of 1329, he argued that the use of

things consumed in their use (such as food) was either just or

unjust, and that just use of such things constituted ownership of

them. From this it follows that both Christ and the apostles, and

the Franciscans, owned property. Turning from his previous pur56 Michel Villey, "Droit subjectif II," in Villey, Seize essais de philosophie du droit, 183-85.

57 A good discussion of this debate is Virpi Makinen, Property Rights in the Late Medieval

Discussion on Franciscan Poverty, Recherches de theologie et philosophie

medievales-Bibliotheca 3 (Leuven: Peeters, 2001). 

CONSCIENCE, FREEDOM, RIGHTS 215

suits in philosophy and logic, Ockham wrote his Opus nonaginta

dierum to attack this bull.

The debate prior to Ockham's intervention had thus already

considered one of the components of the notion of subjective

right, the idea of a power to use a thing as one chooses. Villey,

and following him Annabel Brett, have identified Ockham as

offering a full-fledged conception of subjective rights in the Opus

nonaginta dierum, a conception expressed in his definition of ius

utendi: "A right to use [ius utendi] is a licit power to make use of

some external thing, a power of which one should not be

unwillingly deprived without rational cause unless one has

committed some crime, and the deprival of which can be

contested at law" ("ius utendi est potestas licita utendi re aliqua

extrinseca, qua quis sine culpa sua et absque causa rationabili

privari non debet invitus; et si privatus fuerit, privantem poterit

in iudicio conveniri"). 58 Ius utendi, according to Ockham, is the

property that Christ and his followers renounced. Brett asserts:

The ius utendi is, then, as Villey rightly stressed in his early articles, a subjective

power of action. It is not a relation of control over things, as was ius for the

earlier Franciscans. Moreover, the category of a licit power directed towards

action gives Ockham the genus for his two definitions of dominium. Ockham

replaces dominium with right as the axial analytic category ... 'dominium is the

principal human power of vindicating a temporal thing in court, and of treating

it in every way which is not prohibited by natural law'. 59

This definition is not yet a definition of natural subjective rights,

since, as Villey notes, 60 ius utendi is described by Ockham as

stemming from positive human law. The crucial step that is made

here is not the definition of ius as a power rather than a

relation-definitions of this sort predated Ockham-but the

basing of all legal claims on such powers, and thus the elimination

ss William of Ockham, Opus nonaginta dierum, in Opera politica, ed. J. G. Sikes and H.

S. Offler (Manchester: Manchester University Press, 1963), vol. 2, p. 302; quoted in Annabel

Brett, Liberty, Right and Nature: Individual Rights in !Ater Scholastic Thought (Cambridge:

Cambridge University Press, 1997), 63; and by Villey in "Droit subjectif I," 166.

59 Brett, Liberty, Right and Nature, 63; the quoted passage is from Sikes and Offler, eds.,

Opera politica, 2:320-21.

60 Villey, "Droit subjectif I," 167. 

216 JOHN R. T. LAMONT

of objective right. Villey links Ockham's development of a

conception of subjective right with his nominalism. 61 By rejecting

the existence of relations and of entities other than individual

substances, Ockham's nominalist ontology rules out the existence

of objective right and of the natural human societies that found it.

This philosophical stance would seem important not so much for

the development of the idea of ius as a power to act-a concept

that might be used to supplement, rather than replace, the concept

of objective right-as for the banishing of objective right and its

replacement by subjective right.

Villey's identification of Ockham as the father of subjective

right is generally thought to have been refuted by the work of

Brian Tierney. 62 Tierney attempts to establish that the notion of

subjective right can be found in twelfth-century canonists prior to

Ockham; furthermore, he argues that Ockham's nominalism is

independent of his notion of subjective right.

It is not evident why Tierney's assertions about the existence

of a notion of subjective rights in the twelfth century would be

important if they were true. The main conclusions that Villey's

work seeks to establish are that Aristotle, Roman law, and St.

Thomas all postulate objective rather than subjective rights, and

that their understanding of objective right is basically correct,

while theories of subjective right are false and pernicious. If

Tierney's claim about the emergence of subjective right in the

twelfth century were true, Villey's case for these conclusions

would actually be strengthened from the point of view of

followers of St. Thomas. His exclusive adherence to objective

right would then appear as a deliberate rejection of wellelaborated views of subjective rights.

However, the evidence that Tierney himself produces shows

that this claim is not true. His argument rests on the assumption

61 See e.g. Villey, La formation de la pensee juridique modeme, 223££.; it is a frequent

theme in his work.

62 An example of this attitude is this statement by Martin Rhonheimer: "Tierney

convincingly challenges the view of Michel Villey, for whom the idea of 'rights' (as subjective

rights) is specifically modern" (Martin Rhonheimer, "The Political Ethos of Constitutional

Democracy and the Place of Natural Law in Public Reason: Rawls' 'Political Liberalism'

Revisited," American Journal of Jurisprudence 50 [2005]: 5). 

CONSCIENCE, FREEDOM, RIGHTS 217

that any sort of identification of a ius with a potestas is a notion

of subjective right-as he himself indicates, in a summary

description of his alleged refutation of Villey, "subsequent

research has shown that the association of 'right' and 'power' was

quite common in earlier medieval jurisprudence. "

63 But it is

obvious that not every association between right and power is a

subjective right. Objective right itself, as noted above, provides a

basis for some kinds of powers. For example, a debt legally owed

to me gives me the power to enforce the payment of this debt at

law. Such powers are not however subjective rights, and none of

the associations between ius and potestas that Tierney identifies

in the early canonists can be described as subjective rights. This is

obviously the case in the definitions of ius naturale given by Odo

of Dover (c. 1170; "natural ius is a certain force divinely inspired

in man by which he is led to what is just and right and

equitable"), 64 Simon of Bisignano ("natural ius is said to be a force

of the mind of the superior part of the soul, namely reason which

is called synderesis"), 65 and the canonist Huguccio ("natural ius is

called reason, namely a natural force of the soul" ["ius ergo

naturale dicitur ratio, scilicet naturalis uis animi ex qua homo

discernit inter bonum et malum"]). 66 The definition of Rufinus in

about 1160 says:

Natural ius is a certain force instilled in every human creature by nature to do

good and avoid the opposite. Natural ius consists in three things, commands,

prohibitions, and demonstrations. . . . It cannot be detracted from at all as

regards the commands and prohibitions . . . but it can as regards the

demonstrations, which nature does not command or forbid but shows to be

good. 67

Commands and prohibitions are obviously not subjective rights,

and demonstrations in general cannot be subjective rights, since

63 Brian Tierney, "Religious Rights: An Historical Perspective," in Religious Rights in

Global Perspective, ed. John Witte andJ. D. van der Vyver (London: Martin us Nijhoff, 1996),

27.

64 Brian Tierney, The Idea of Natural Rights (Grand Rapids: Eerdmans, 1997), 63.

65 Ibid.

66 Ibid., 64.

67 Ibid., 62. 

218 JOHN R. T. LAMONT

Rufinus explicitly states that they can be detracted from. All of

these definitions of forms of ius cited by Tierney are distinct from

subjective rights, and are often concerned with entirely different

subject matters.

The legal powers identified by Charles J. Reid in twelfth- and

thirteenth-century canon law are closer to subjective rights, but

they are not identical with such rights. Reid, like Tierney, conceives of any identification of a ius with a potestas as a subjective

right. 68 None of the powers mentioned by Reid are subjective

rights, because all of them either contain some reference to

specified individuals or groups, or do not constitute fundamental

juridical principles, or both. This is the case with the right of the

poor in extreme necessity to take from the rich what is needed for

their subsistence, 69 the right of a cathedral canon to vote in the

election of a bishop, 70 the faculty to contract marriage, 71 the right

of married people to claim sexual intercourse from their

spouses, 72 and the right of parents to be honored by their children

on the basis of the fourth commandment. 73 All of these rights

presuppose the existence of individuals or groups aside from the

holder of the right (the rich, a person it is possible to marry, a

spouse, a diocese, children), and bear on those specified

individuals or groups rather than on anyone at all; they are thus

not monadic properties of individuals. The multiplication of legal

powers in the early Middle Ages described by Reid is in fact

something that Villey draws attention to, and identifies as an

influence on the development of subjective rights. 74 However,

these powers are not themselves subjective rights.

68 See Charles J. Reid, "The Canonistic Contribution to the Western Rights Tradition,"

Boston College Law Review 33 (1991): 37-92; "Thirteenth-Century Canon Law and Rights:

The Word ius and Its Range of Subjective Meanings," Studia Canonica 30 (1996): 295-342.

69 Reid, "The Canonistic Contribution to the Western Rights Tradition," 66.

70 Ibid., 67; Reid, "Thirteenth-Century Canon Law and Rights," 321.

71 Reid, "The Canonistic Contribution to the Western Rights Tradition," 73.

72 Ibid., 80.

73 Ibid., 57.

74 Villey, "Droit subjectif I," 156-58. Villey remarks here that "the shift in meaning of the

word ius towards a notion of power characterizes the language of practice in the Middle Ages"

(ibid., 157). 

CONSCIENCE, FREEDOM, RIGHTS 219

It may be that the importance of the claim that subjective rights

predate Ockham lies for Tierney in the resulting separation of

subjective rights from nominalism. If these rights were postulated

prior to the development of nominalism, that would show that

they are independent of nominalist ontology. Tierney has argued

that there is no connection between Ockham's nominalism and his

views on rights. However, his arguments entirely miss the point

of Villey's position. The element of Ockham's nominalism that

Tierney discusses is his position on the problem of universals. 75

Villey, in referring to Ockham's nominalism, is not simply

alluding to Ockham's position on the problem of universals, but

to Ockham's ontology as a whole. The aspect of this ontology that

Villey singles out as essential to his postulation of subjective rights

and rejection of objective right is Ockham's rejection of the

existence of relations and of subsisting entities aside from

individual substances. 76 If there are no relations, there can be no

objective right. If human societies are not natural entities that are

irreducible to a mere collection of individuals, there is no basis for

objective right. 77

The importance of Ockham's nominalism does not lie simply

in the need for coherence between one's metaphysical account of

the world and one's philosophical account of law and rights. As

75 Some scholars have connected Ockham's political philosophy with his views on

universals, a fact that may have misled Tierney in his approach to Villey; they are criticized

in Charles Zuckerman, "The Relationship of Theories of Universals to Theories of Church

Government in the Middle Ages: A Critique of Previous Views," Journal of the History of

Ideas 36 (1975): 579-94. A. S. McGrade, in "Ockham on the Birth of Individual Rights," in

Authority and Power, ed. Brian Tierney and Peter Linehah (Cambridge: Cambridge University

Press, 1980), has defended the claim that Ockham's views on universals had some impact on

his conception of rights. This debate, while interesting, is not relevant to Villey's argument.

76 Paul Vincent Spade remarks, "Ockham removes all need for entities in seven of the

traditional Aristotelian ten categories; all that remain are entities in the categories of substance

and quality, and a few entities in the category of relation, which Ockham thinks are required

for theological reasons pertaining to the Trinity, the Incarnation and the Eucharist, even

though our natural cognitive powers would see no reason for them at all" (The Stanford

Encyclopedia of Philosophy [Fall 2006 edition], s.v. "William of Ockham" [available at

<http://plato.stanford.edu/archives/fall2006/entries/ockham/> ]).

77 See, e.g., Villey's review of Richard Tuck's Natural Rights Theories: Their Origin and

Development (Cambridge: Cambridge University Press, 1979), in "Travaux recents sur !es

droits de l'homme, I," Archives de philosophe du droit 26 (1981): 411-18. 

220 JOHN R. T. LAMONT

Villey points out, objective right is a real feature of the world,

which inevitably obtrudes itself into daily life and legal decisions.

Accounts of natural subjective rights, together with positive

legislation, are in practice insufficient for juridical purposes. 78 The

real activity of judges, when investigated, turns out to involve

acknowledgment of the existence of objective right. An account

of justice and law with no place for objective right therefore needs

an understanding of the world that can motivate people to deny

the existence of objective right, and to reject or reinterpret the

judicial activity that depends on the existence of objective right.

Ockham's nominalist ontology performs this essential function for

a theory of subjective rights.

F) Full Development of Subjective Rights

Villey's account of the origin of philosophical accounts of

subjective rights thus stands up to examination. Although he

identifies Ockham as the originator of subjective rights, he holds

that the full-fledged subjective rights position took time to

develop. An important step in that development was the baroque

Scholastic account of ius as a power rather than a relation, 79 but

the final steps were taken by Hobbes. These steps were the

definition of subjective rights as natural rights and the elaboration

of a conception of the nature of individuals and human society

that would replace the Aristotelian conception that underlies

objective right. Hobbes offers this definition of right:

The right of nature, which writers commonly call jus naturale, is the liberty each

man hath, to use his own power, as he will himself, for the preservation of his

own nature; that is to say, of his own life; and consequently, of doing any thing,

which in his own judgment, and reason, he shall conceive to be the aptest means

thereunto .... Right, consisteth in liberty to do, or to forbear; whereas law,

78 See, e.g., Michel Villey, Reflexions sur la philosophie et le droit: Les carnets de Michel

Villey, ed. Marie-Anne Frison-Roche and Christophe Jamin (Paris: PUF, 1995), 305.

79 For ius as a power in Vitoria and Suarez, see Villey, La fonnation de la pensee juridique

moderne, 344-45, 356-57. 

CONSCIENCE, FREEDOM, RIGHTS 221

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. 80

Inspired by the scientific practice of the day, 81 Hobbes attempted

to describe the properties of human societies as functions of the

properties of the individuals that compose them. This is the

rationale for the hypothesis (or perhaps merely the thought

experiment) of the state of nature, a state where the attributes of

individuals who are joined by no social bonds can be considered.

These attributes then serve as the basis for the construction of all

social bonds, much as the electron shells of atoms serve as the

basis for the construction of all molecules. This conception of the

nature of society is fundamentally opposed to that of Aristotle and

St. Thomas, and rules out the possibility of objective right. The

only attributes of individuals in a state of nature are those that

flow from the bare human nature found in each one of them,

since every historical circumstance or personal relation has been

thought away. Political structures are derived from these attributes

from the drive to self-preservation, together with the law of

nature that requires individuals to keep their promises. This gives

rise to a situation in which the rights possessed in the state of

nature are ceded by contract to the ruler, in order to achieve the

goal of self-preservation for individuals. Since these rights are

absolute spheres of freedom in which to act, they confer absolute

power on the ruler when transferred to him. The ruler becomes,

for Hobbes, a "mortal God" upon which his subjects can make no

claim.

This absolutism, favored by Hobbes partly as a result of his

experiences of the English Civil War, did not go down well in

England. The flexibility of the notion of subjective right was

demonstrated by Locke's use of it to limit the powers of the ruler,

through the simple expedient of postulating more subjective rights

in the state of nature than Hobbes's solitary right to self80 Thomas Hobbes, Leviathan, p. I, c. 14, in The English Works of Thomas Hobbes, vol.

3, ed. Sir William Molesworth (London: John Bohn, 1839; repr. Darmstadt: Scientia Verlag

Aalen, 1966), 116-17.

81 Villey, La formation de la pensee juridique modeme, 574-75. 

222 JOHN R. T. LAMONT

preservation. This expedient, together with the postulation of a

more comprehensive law of nature that binds men in the state of

nature, transformed the state of nature from a misery to be

escaped into the foundation upon which society is built. The

principal additional natural right postulated by Locke is that of

property (Two Treatises on Government, b. 2, c. 5). The natural

law commands us to respect the natural rights of others. Because

they are natural, these rights are absolute, and cannot be infringed

on by the state against the will of their possessors. The powers of

the state are those natural rights that have supposedly been ceded

to it by the free consent of its citizens.

The great and chief end, therefore, of men's uniting into commonwealths, and

putting themselves under government, is the preservation of their property ...

. in the state of nature, to omit the liberty he has of innocent delights, a man has

two powers. The first is to do whatsoever he thinks fit for the preservation of

himself and others within the permission of the law of nature .... the other

power a man has in the state of nature, is the power to punish the crimes

committed against that law. Both these he gives up when he joins in a ...

particular politic society .... the first power ... he gives up to be regulated by

laws made by the society .... the power of punishing he wholly gives up. 82

The obligation to keep one's promises is also a part of the natural

law, thus giving a moral basis to the power of the state. The result

of this social contract is a night-watchman state, with no authority

over religious belief (which is taken to be a purely private matter),

no authority to punish immoral behavior as such, and no

authority to suppress the free expression of opinion, except in so

far as any of these things violate the rights of others or the public

peace (these positions are all developed by Locke in A Letter

concerning Toleration). Its function is to protect individual rights

against internal and external aggressors-a function that

emphatically cannot include any kind of redistribution of

property, which would be an infringement on natural rights.

Locke's political philosophy is the theoretical rationale, and a

82 John Locke, Two Treatises of Government, book 2, Essay on Civil Government, c. 9, in

The Works of John Locke, vol. 5 (London: Thomas Tegg, 1823; repr. Germany: Scientia

Verlag Aalen, 1963), 412-14. 

CONSCIENCE, FREEDOM, RIGHTS 223

historical cause, for the "Anglo-American" conception of the

religiously neutral state, which is often favorably contrasted by

Catholic thinkers with the more determinedly secular

understanding of the state that emerged from the French

Revolution.

Villey's account of the development and eventual supremacy

of the concept of subjective rights is not limited to the ideas of

philosophers. It also contains descriptions of the important contribution of jurists. The baroque Scholastics, especially Suarez, fell

to some extent into both these categories (and had an underestimated influence on the development of legal thought), but in

the seventeenth century the work of men whose scholarly activity

was concerned primarily with the law began to play an important

role in this process. The chief figure in this development was

Grotius. Villey points out that the innovation usually credited to

him, that of separating law from religious belief, was not in fact

novel. It is a basic feature of the thought of St. Thomas on ius,

grounded as it is on the pagan Aristotle; and Grotius's formula of

the natural law obtaining even if it is assumed that God does not

exist ("etiamsi daremus ... non esse Deum") is in fact found in

substance in a number of Scholastics. 83 Nor was Grotius's

definition of rights as subjective rights a novelty. Villey identifies

Grotius's originality as consisting in his attempt to base the law on

principles of morality. Grotius's ambition was to found the law on

a rational basis that was as independent of empirical facts as the

work of mathematicians. 84 He sought to achieve this by merging

law with morality-"law is a rule of moral actions obliging one to

do what is right" ("ius est ... regula actuum moralium obligans

ad id quod rectum est") 85-and basing law on the first principles

of morality inscribed in the human conscience. These principles

are founded on the inclination to live in human society, and are

taken from Stoic morality as passed on by Cicero. They are the

83 Villey, La fonnation de la pensee juridique modeme, 539; he instances Suarez, De

legibus, bk. 2, ch. 6, para. 17; Vasquez, Commentari ac disputationes in Primam Secundae S.

Thomae (Lyons, 1631), <lisp. 150, c. 3, n. 23; Gabriel Biel, Super Sentent. II, d. 3, a. 2.

84 Villey, La fonnation de la pensee juridique modeme, 541.

85 Ibid., 542. 

224 JOHN R. T. LAMONT

duties to respect the property of others, to keep one's word, and

to repair the damage one has caused by one's own fault, and the

justice of punishment being inflicted for any violation of these

duties. 86 From these, Grotius claims to derive the whole content

of the law. 87

In basing law and subjective rights on one of the basic

inclinations that St. Thomas identifies as the first principles of

practical reason, Grotius exemplifies what is now thought of as

natural-law theory. Samuel Pufendorf and Christian Wolff were

to follow along the same lines, as were many of the jurists of

eighteenth-century France. Grotius's approach of basing legal

obligation on principles that ignored empirical facts adapted to

the law a method that is not adequate even for morality itself, as

we have seen in our discussion of moralities of conscience. As a

result, the alleged deductions in his system, like the deductions in

casuistry, are full of holes. 88 This lack of logic was not a hindrance

to the success of Grotius's thought, because the main appeal of

that thought lay in its convenience for early modern capitalism

and the class that benefited from that capitalism. The myth of a

natural right to property based on original possession gave

complete security to the property of the well off. Basing contracts

on an absolute duty to keep one's promises-a notion in contradiction to the Roman law of property-meant that oppressive

86 Ibid., 543, 547. Villey points out that Grotius, following Cicero, puts these Stoic

principles to a use for which they were not originally intended, since they were meant by the

Stoics purely as a guide to individual conduct, not as a basis for law.

87 It is worth mentioning that by unifying law and morality, the baroque Scholastics and

the seventeenth century jurists injured morality as well as law. As we have seen, the human law

and the rulings of human judges can only bear upon exterior realities, which are not defined

in terms of the intentions or moral responsibilities of the agents involved in these realities. If

the law becomes thought of in terms of morality, morality as a result tends to be understood

on the model of the law. Moral principles come to be thought of as bearing on actions

described from the exterior; as Pinckaers notes of moralities of conscience, "the distinction

between exterior act and interior act is blurred" (Pinckaers, L'Evangile et la morale, 277).

Pinckaers also discusses the damage done by the notion of subjective rights to a grasp of the

virtue of justice (ibid., 49-50).

88 Villey, La formation de la pensee juridique modeme, 551-2, points out the flaws in

Grotius's reasoning, and explicitly makes the comparison with casuistry; see also Michel

Villey,"Morale et droit (sur un texte de Grotius)," in Villey, Seize essais de philosophie du

droit, 107ff. 

CONSCIENCE, FREEDOM, RIGHTS 225

contracts exacted by the economic power of one of the

contractees were necessarily binding in morality and law. The

whole search for distributive justice in the law, in this approach,

is conjured away. In dealings between nations, Grotius's system

comes down on the side of the powerful, and especially on the

side of European colonialists against indigenous peoples. As Villey

remarks,

[Grotius's] system of subjective rights is perfectly suited to ensuring the security

of established property, the reliability of fiscal transactions, the tranquillity

necessary for economic development, and the restriction of violence; but at the

price of justice. He responded to the need for order that political and economic

circumstances had given rise to. He was the product of a pragmatic cast of mind,

that, in order to promote the temporal goals pursued by the society of his time,

proved itself capable of an inspired exploitation of a ruling ideology. 89

Villey makes the same observation about Locke, and notes that

Marx had already pointed out that subjective rights, as expressed

in the Declaration of the Rights of Man, had been crafted to serve

the political and economic interests of the bourgeoisie-an

assertion with which Villey agrees. 90

The irksome and unjust aspects of this ideology helped to

produce the final significant evolution of the notion of subjective

rights. As originally conceived, subjective rights were spheres of

immunity from coercion, as appears in the definition given by

Hobbes above. When the notion of subjective rights had

monopolized the domain of justice, however, aggrieved parties

who suffered from the injustices of the capitalist system found no

other way of demanding better treatment than the language of

such rights. This gave birth to the notion of subjective claimrights: rights to some good, or to the necessary conditions for the

achievement of some good, that attached to invidivuals in virtue

of their human nature, and that entitled them to claim these goods

from others. The goods in question are typically the basic goods

identified by the first principles of practical reason, or by the

dignity of the human person. The problems with subjective claim89 Villey, La fonnation de la pensee juridique moderne, p. 557.

90 Michel Villey, Le droit et /es droits de l'homme (Paris: PUF, 1983), 152. 

226 JOHN R. T. LAMONT

rights are obvious. One person's claim to a good is liable to

interfere with another person's claim, and the concept of

subjective rights provides no means of determining whose claim

is to prevail; the notion that one's own claim should prevail over

others just is an expression of the idea of a subjective claim-right.

As for the dignity of the human person, worthy notion as it is,

Villey's comment is apt: the attempt to settle juridical disagreements between persons by appeal to the dignity of the

human person is like trying to calculate the age of the captain

from the dimensions of the boat.

Villey's disparaging comment about the usefulness of the

notion of human dignity is liable to raise hackles among Catholics,

who are accustomed to frequent appeals to human dignity in

ecclesiastical rhetoric. However, a look at the origins of this

rhetoric indicates the justice of Villey's stand. Its principal source

is the personalism of Emmanuel Meunier, a figure who had an

immense influence on progressive Catholic thought. 91 The

popularity of Mounier's views in the 1940s and 1950s was one

basis for later ecclesiastical rhetoric about a growth in

understanding of the dignity of the person in contemporary

society. Meunier however scorned any idea of giving

philosophical or metaphysical precision to the notion of the

dignity of the human person, an anti-intellectual stand that was

helpful in evading awkward questions about his sympathies with

fascism and Nazism before the Second World War, his qualified

enthusiasm for Vichy and contempt for the French Resistance,

and his zealous support for Stalin after the war. 92 If philosophical

91 Mounier's influence was not limited to clerical circles. To give one example, Pierre

Elliott Trudeau, a self-described follower of Mounier, launched his public career by founding

a journal, Cite libre, which was intended to be a Canadian version of Mounier's journal Esprit;

Canadian Catholics will be able to judge how much Trudeau's thought and actions did to

promote human dignity in Canadian society.

92 For Mounier's life, thought, and influence, see John Hellman, Emmanuel Mounier and

the New Catholic Left 1930-1950 (Toronto: University of Toronto Press, 1981). Hellman's

The Knight-monks of Vichy France: Uriage, 1940-1945, 2d ed. (Montreal: McGill-Queen's

University Press, 1997) is helpful on Mounier's connections with figures of the nouvelle

theologie such as Chenu, Congar and de Lubac. Mounier's prewar interest in fascism and

Nazism is described in Zeev Sternhell, Ni droite ni gauche: l'ideologie fasciste en France, rev.

ed. (Brussels: Editions Complexe, 1987). Debates over Sternhell's overall thesis do not 

CONSCIENCE, FREEDOM, RIGHTS 227

precision is supplied for the notion of the dignity of the person,

however, it becomes apparent that this dignity is Villey's main

theme. It is precisely the order of justice that he defends that

specifies what the natural dignity of the human person consists in;

and it is the order of charity described by St. Thomas (STh 11-11,

qq. 23-27) that specifies the dignity conferred on the human

person by grace.

G) Subjective Rights as a Harmful Myth

The failure of modern natural-law theories is apparent in one

of their more recent versions, that of Mounier's mentor Jacques

Maritain. Maritain takes the nature of the individual human as the

foundation for natural law, following the standard modern

natural-law approach. 93 However, warned by the example of his

predecessors, he does not attempt logically to deduce the

principles of the natural law, or natural rights, from this nature.

He denies that the natural law can be known by reason, 94 and

asserts that it is grasped by the nonconceptual inclinations of the

person, which are the song produced in the subject by the

undermine his documentation of Mounier's views. Mounier mocked Georges Bernanos for

broadcasting on the BBC in favor of the Resistance (see Michel Winock, Histoire politique de

la revue 'Esprit' [Paris: Editions du Seuil, 1975], 209), and denounced the D-day landings as

a "myth ofliberation" (Mounier, Oeuvres [Paris: Editions du Seuil, 1961-63], 4:766; see Seth

D. Armus, "The Eternal Enemy: Emmanuel Mounier's Esprit and French Anti-Americanism,"

French Historical Studies 24 [Spring 2001]: 271-304). After the war, Mounier defended the

Communist takeover of Czechoslovakia and the show trial of the left-wing democratic

Bulgarian politician Nikola Petkov, "one of the most dreadful of eastern Europe's show trials"

(R. J. Crampton, Bulgaria [Oxford: Oxford University Press, 1997], 322). Petkov was shot.

Mounier attacked Frarn;;ois Mauriac for showing a concern for "individual justice" in the

Petkov case (see Tony Judt, Past Imperfect: French Intellectuals, 1944-1956 [Berkeley:

University of California Press, 1992], 86-97); a line of argument parallel to that of Charles

Maurras in the Dreyfus case, although Maurras did not accompany his position with extensive

reflections on the dignity of the human person. Mounier's eventual rejection of Christianity

in favor of Nietzsche did not much affect his influence in Catholic circles.

93 Jacques Maritain, L'homme et l'etat, in Jacques et Raissa Maritain: Oeuvres completes,

vol. 9 (Paris: Editions Saint-Paul, 1990), 578-79.

94 Ibid., 585. 

228 JOHN R. T. LAMONT

"vibrations" of his interior tendencies. 95 In postulating a

nonconceptual grasp of reality, Maritain, a disciple of John of St.

Thomas, follows M.-D. Chenu in assuming that concepts are signs

of reality, and that these signs can be circumvented by a superior,

nonconceptual intuition. 96

For the natural law to be recognized in a society, its members

must agree about the directions of their inner vibrations. This

agreement is brought about by the operation of a general law of

history, which asserts that human societies progress over time.

Maritain identified this law in 1942. He addressed any possible

doubts about the existence of such progress by pointing out that

the general law in fact predicts two developments, in which

human societies progress in some ways while simultaneously

worsening in others. 97 The improvements necessary for his theory

are brought about by the positive side of the law, while the

disasters that provoke skepticism about progress result from the

negative side.

The nonconceptual nature of knowledge of the natural law

does not prevent Maritain from describing this law, and the rights

to which it gives rise. From the basic inclinations known by

vibrations (which turn out to be the basic goods described by St.

Thomas) arise rights to the possession of the goods sought by

these inclinations. Such rights exist not only to the goods sought

by fundamental inclinations, such as life, but also to more specific

ways of realizing these inclinations, such as unemployment

insurance. 98 Maritain is aware that these rights will need to be

reconciled with one another, and to achieve this reconciliation he

introduces the idea of the common good. 99 This notion is not

properly explained, and it does not seem to correspond to the

understanding of the common good that St. Thomas uses to found

95 "L'intellect, pour former un jugement, ecoute et consulte l'espece de chant produit clans

le sujet par la vibration de ses tendences interieures" (ibid., 586).

96 On this, see Lamont, "Determining the Authority and Level of Church Teaching," 387-

90.

97 Jacques Maritain, Les droits de l'homme et la loi naturelle, in Jacques et Raissa Maritain:

Oeuvres completes, vol. 7 (Paris: Editions Saint-Paul, 1988), 638.

98 Maritain, L'homme et l'etat, 604.

99 Ibid., 597. 

CONSCIENCE, FREEDOM, RIGHTS 229

objective right; Maritain does not grasp St. Thomas's view, simply

remarking that in antiquity and the Middle Ages the natural law

was focused on obligations rather than rights. 100 In the absence of

criteria for determining their scope, the rights postulated by

Maritain are in effect no more than a list of desirable objectives

to be pursued. Maritain distinguishes between rights that can be

limited by the demands of the common good, and those that are

inalienable. He does not offer criteria for distinguishing between

the two, and the examples of inalienable rights that he

gives-those of life and the pursuit of happiness-do not have any

evident characteristics that identify them as being inalienable,

except for their having been so described in the American

Declaration of Independence (no doubt a reflection of Maritain's

sojourn in America).

One need not labor the point that this account of natural law

and natural rights does not stand up to examination. In addition

to its influence on Vatican H's Dignitatis humanae, its interest lies

in its illustrating the full flowering of the tendency, already noted

by Villey in the baroque Scholastics, to substitute a concern with

arriving at the right answer for a concern with answering

rightly-with the content of the right answer having been

provided by the goals, interests, and presuppositions of the

time. 101

The above survey of objective and subjective rights puts us in

a position to consider Villey's case for the abandonment of

subjective rights, and for the acceptance of objective right. The

historical element of this survey provides an answer to the

objection that Villey's position is a form of archaism. Villey's idea

is that by accepting objective right and rejecting subjective rights

we should accept the views of the thirteenth century rather than

the views of the fourteenth century. At this distance of time, there

is no longer much to choose between these alternatives when it

100 Ibid., 589.

101 In "Sur la politique de Jacques Maritain," Archives de philosophie du droit 19 (1974):

444, Villey comments on the negative influence of baroque Scholasticism on Maritain, and

notes that "following the example of most contemporary philosophers and theologians, he

was distinguished by an almost total absence of knowledge of economics and law." 

230 JOHN R. T. LAMONT

comes to archaism. In the fifteenth century it would have been

different; but in the twenty-first, we can be content to examine

these alternatives on their merits, without having to worry about

which is more contemporary.

Villey's case against subjective rights is that they are nonexistent, and that the belief that they exist is damaging. His

argument for their nonexistence overlaps with that expressed by

Alasdair Macintyre;

By 'rights' ... I mean those rights which are alleged to belong to human beings

as such and which are cited as a reason for holding that people ought not to be

interfered with in their pursuit of life, liberty and happiness. They are the rights

which were spoken of in the eighteenth century as natural rights or as the rights

of man .... There are no such rights, and belief in them is one with belief in

witches or unicorns. The best reason for asserting so bluntly that there are no

such rights is indeed of precisely the same type as the best reason which we

possess for asserting that there are no witches ... every attempt to give good

reasons for believing that there are such rights has failed. 102

The history of the development of subjective rights that is given

by Villey substantiates Maclntyre's claim that no good reason for

believing in their existence has been offered. To this can be added

reasons for believing in their nonexistence: the contradictions between different accounts of subjective rights, the illogical features

of every proposed account of subjective rights, the mythological

character of the state of nature that is essential for the historically

foundational theories of subjective rights, and the fact that such

rights were unknown to very many cultures, despite their

supposedly flowing from the essence of human nature and being

the basis for just social relations.

The evils caused by belief in subjective rights are multifarious.

Their postulation as the basis of justice and law renders invisible

the actual justice of objective right. Attempts to make the law

conform to the structure of subjective rights have a damaging

effect, and the nonexistence of such rights permits accounts of

them to be turned to all kinds of dubious ends. Their claims to be

102 Alasdair Macintyre, After Virtue, 2d ed. (London: Duckworth, 1985), 68-69. I do not

know whether or to what extent Macintyre was influenced by Villey. 

CONSCIENCE, FREEDOM, RIGHTS 231

complete and universal rules of justice rule out consideration of

the particular circumstances of culture and history that are in fact

essential to the determination of justice in the particular case. As

a result, they are powerful tools for cultural and political

imperialism. We have seen how theories of subjective right were

used to protect the interests of the rich and defend the injustices

of early capitalism. In the hands of Hobbes, such a theory was

used to justify absolutism; if the power of the ruler is conceived

of as a subjective right, it admits of no limitations, since the

essence of such a right is to confer an entirely free sphere of

action. (This advocacy of complete surrender of subjective rights

to the ruler both arose from and fostered the development of

absolutism in the sixteenth and seventeenth centuries.) In the area

of familial relations and family law, the model of subjective rights

had deleterious consequences that were similar to its

consequences in politics. Forms of authority within the family

were conceived of as analogous to subjective property rights over

things, imposing a tyranny that produced a reaction against the

notion of the family as a natural unit. The proposed remedy for

that tyranny, which was to consider relations within the family as

contractual agreements between autonomous individuals-on the

model of the social contract by which subjective rights are given

up to political authorities-meant denying that there is such a

thing as the family at all. 103 Subjective rights eliminated the

Aristotelian connection between good human societies and the

good of the universe as a whole, removing any grounds for

obligations towards nonhuman animals or the rest of creation in

general. On St. Thomas's view, the claim that there is no justice

between humans and animals does not remove any sort of

obligations towards animals. After all, there is no justice between

citizens of different states, on his theory, but that does not

eliminate all moral obligations towards noncitizens. If justice is

understood in terms of subjective rights, however, the denial of

any justice between humans and animals leaves animals with no

103 On subjective rights and the family see Michel Villey, "Droit familial et philosophies

du droit nature!," Revista chilena de derecho 7 (1980): 621-32. 

232 JOHN R. T. LAMONT

moral standing. Indulging in the rhetoric of subjective rights

produces a delusory self-righteousness, because it makes people

feel that they are doing something about the crying injustices in

the world, without demanding actual sacrifices from them.

Promises of subjective rights-such as awarding rights to

education or employment in bills of rights-are used as an opiate,

as empty promises that are a substitute for actually benefitting

people. 104 The claim version of subjective rights can give grounds

for demanding the satisfaction of any kind of selfish interest.

Subjective rights are, in short, a solvent for all the essential bonds

of human society.

The case against subjective rights as set out above is conclusive,

and we can therefore endorse Villey's claim that they should be

rejected. His presentation of objective right as the alternative to

accept in their place will meet philosophical opposition from

consequentialists, whose position is the only substantial alternative

to both objective and subjective rights. The philosophical case

against consequentialism is familiar, and cannot be rehearsed here.

From our discussion of objective and subjective rights we can

however extract objections to consequentialism that supplement

this philosophical case. One relevant consideration is that much

of the appeal of consequentialism stems from the disadvantages of

subjective rights together with the oblivion into which objective

right has fallen. This oblivion has meant that consequentialism has

appeared as the only alternative to subjective rights and their

disadvantages. Rediscovery of objective right and its long tradition

thus takes much of the wind out of the sails of consequentialism.

Another consideration is the stubborn persistence, noted by

Villey, of objective right in juridical and moral practice-a

persistence that is difficult to explain except by the actual

existence of objective right. These considerations tip the balance

in favor of objective right-and together with the endorsement of

objective right by St. Thomas, they imply that from a Catholic

standpoint objective right should certainly be accepted.

104 See Villey, Le droit et /es droits de l'homme, 156-57. 

CONSCIENCE, FREEDOM, RIGHTS 233

H) Human Rights and Catholic Teaching

This last remark about the Catholic standpoint will raise a

question. Has not the Church, at least since Mater et magistra,

explicitly endorsed and insisted on respect for human rights? And

was not this endorsement of human rights meant to be an

endorsement of the Enlightenment conception of natural rights,

which-as we have seen-were subjective rights? Is not Villey's

position thus incompatible with Catholic teaching?

Villey certainly knew about and disapproved of the Church's

misleading endorsement of the notion of human rights (he

ironically dedicated his last main attack on subjective rights, Le

droit et les droits de l'homme, to John Paul II, as being reflections

provoked by the pontiff's teaching on the rights of man). He did

not trouble to defend himself against the accusation of dissent, no

doubt because he realized that the inference from the Church's

defending human rights to her defending subjective rights could

only be warranted if Church teachings explicitly identified human

rights with subjective rights-which they do not. He also knew

that defending the position of St. Thomas, as he did, is permissible

for any Catholic thinker, unless the view defended has been

explicitly condemned by the Church.

A Catholic cannot however simply refuse to accept that Church

teaching on human rights imposes an obligation to believe in

subjective rights, but give no account of what this teaching does

oblige us to believe. Some positive account of this teaching must

be given in a Catholic account of human rights. The resources for

such a positive account can be found in St. Thomas. One resource

is his claim, underlined by Villey, that the Decalogue sets limits on

what laws can be just (STh II-II, q. 57, a. 2, ad 2). We can

translate this simply into rights language by saying that a law that

allows some people to treat others in a way that is contrary to the

natural law, or that requires people to act in a way that is contrary

to the natural law, is a violation of their natural rights. The

commandment of the Decalogue that asserts "thou shalt not kill"

is precisely the grounds upon which John Paul II, invoking his 

234 JOHN R. T. LAMONT

apostolic authority, teaches a right to life that forbids the

deliberate killing of the innocent (Evangelium vitae 57). Absolute

moral norms thus provide a basis for exceptionless natural rights.

Another resource is the assertion by St. Thomas that there are

rules of natural equity that bind as a general rule, but that are

subject to exceptions. The example he gives is returning a deposit

to a depositor, something that is required by natural equity but

that ought not to be done if the deposit is a sword that the

depositor will use to commit murder. Such rules of natural equity

form the basis for rights that are natural, although not exceptionless. A further resource is what might be called "Maritainian"

rights-that is, statements of goods that a society ought to pursue,

such as health and education. Much of the Church's teaching that

is couched in terms of human rights is simply enunciations of

general rules of equity and desirable goods to be pursued, applied

to particular situations where these rules and goods are being

neglected. These three categories of rights together cover the area

of Catholic teachings in human rights. Villey is right to say that

the terminology of human rights is a misleading way of framing

these teachings, but that does not mean that the teachings

themselves are not important and true. Villey indeed acknowledges this. He does not criticize the substance of Church

teachings on rights and justice. He only objects to their expression

in the language of human rights, and to the theological accounts

that have been built upon these teachings-accounts that wrongly

attempt to derive a blueprint for a just society from them, in the

fashion of the blueprint for a just society found in modern

natural-law theories. 105

105 See Villey's discussion in 'Une enquete sur la nature des doctrines sociales chretiennes',

Archives de philosophie du droit 9 (1964). Villey's objection is confirmed by an examination

of the thought of Luigi Taparelli d'Azeglio, the 19th century Jesuit and co-founder of Civilta

Cattolica who coined the term 'social justice'. Taparelli taught the future Leo XIII and was

a principal influence on Rerum Novarum, and was quoted by Pius XI in Divini illius magistri

50, which described his Saggio Teoretico di Diretto Naturale as 'a work never sufficiently

praised and recommended to university students'. His thought was largely a version of

baroque scholastic natural law theory, with eclectic borrowings from Locke and other nonCatholic thinkers. John C. Rao's enthusiasm for Taparelli as having provided an alternative

to Enlightenment thought is thus misplaced. The failure of Catholic social thought to be 

CONSCIENCE, FREEDOM, RIGHTS 235

We can conclude this discussion of objective and subjective

rights by briefly indicating the light it casts on the flaws of the

conflicting positions in the debate over Dignitatis humanae at the

Second Vatican Council. The progressives believed that religious

liberty was a natural subjective right flowing from the nature of

the individual human. The conservatives believed that it could not

be a right of any kind, because it would be a right to do what was

morally wrong, namely, to practice a false religion. They believed

such a right to be impossible, because they accepted the identity

of justice and morality, an identity that rules out not only a

natural subjective right to the practice of religion, but any kind of

just claim-any objective right-to any form of practice of any

false religion.

Ill. THE COUNTER-REFORMATION SYSTEM AND THE

ENLIGHTENMENT RELIGION

The above discussion of moralities of conscience and subjective

rights has been an exercise in ressourcement, arguing that

nominalists and their baroque Scholastic heirs adopted gravely

mistaken views, and that these views should be rejected in favor

of the superior positions of St. Thomas. In an earlier article I

pointed out the flaws in the baroque Scholastic conceptions of

faith and theology. 106 These two arguments yield more than

philosophical and theological conclusions. In describing the

baroque Scholastic views that have been argued against, the main

outlines of a system have been delineated: a system that can be

called the Counter-Reformation system. The intellectual foundations of this system are liberty of indifference, moralities of

conscience, faith conceived of as obedience, and authority

understood as the exercise of subjective rights. The system itself

is the embodiment of these foundations in the intellectual,

spiritual, psychological, and institutional life of Catholics and the

Church. This embodiment involved holiness conceived of as the

widely accepted and practiced - a failure Rao finds mysterious - is in fact due to a large extent

to the weaknesses that result from its being framed in modern natural law terms.

106 See also Lamont, "Determining the Authority and Level of Church Teaching." 

236 JOHN R. T. LAMONT

prerogative of clergy and religious; clerical, and ultimately papal,

authority conceived of in parental or even despotic terms, rather

than as analogous to a form of political leadership over citizens;

and faith conceived of, and inculcated, primarily as obedience to

orders rather than as attainment of truth. It is termed the

Counter-Reformation system, because it was during the CounterReformation that it came to shape the life of the Church and

decisively influence her strategies for dealing with the world. It

does not correspond to the Counter-Reformation itself, which had

many features that were independent of and even at odds with it.

The Counter-Reformation system was however a chief aspect of

the Counter-Reformation, that persisted after the energy and

achievements of the Counter-Reformation itself were largely

exhausted. It was the source of the evils in the Church that have

been discussed in this article and the previous one: clericalism,

authoritarianism, anti-intellectualism, aversion to philosophical

thinking, and spiritual immaturity and lack of ambition on the

part of the laity.

Understanding the Counter-Reformation system is one of two

tasks that are required to answer the question asked above, the

question of why the Church has been steadily in retreat since the

Enlightenment. The other task can be carried out by developing

some insights of Villey's. The above defence of Villey's views on

objective and subjective rights is concerned with the work of his

academic career. This work, the life work of a great scholar, 107

emerges vindicated from its defence, but it is not the only

important contribution made by Villey to the question of

subjective rights. In addition to this work, there is also an insight

that Villey the Christian and Catholic drew from it. This is the

insight that natural subjective rights are an idol; and that they are

connected to another idolatry, that of the self. 108

107 On Villey's learning, see Stephane Rials, 'Presentation', in Villey, La formation de la

pensee juridique moderne, 13-16.

108 For Villey on the rights of man as idols, see e.g. Villey, Reflexions sur la philosophie et

le droit, 243, 257; on the self as an idol, see ibid., 159. Villey's view on idols is discussed in

Stephane Rials, Villey et /es idoles: Essai (Paris: PUF/Quadrige, 2000). 

CONSCIENCE, FREEDOM, RIGHTS 237

This development of these insights of Villey's points out that

conscience (as understood by moralities of conscience), liberty of

indifference, and subjective rights assign to human beings

properties that belong to God alone, which is idolatry. Moralities

of conscience ascribe a real, and in practice a decisive, moral

authority to conscience as such. But moral authority belongs to

God alone. Attributing it even partially to the human conscience

is thus a form of idolatry. The same is true of liberty of

indifference. To possess liberty of indifference is to possess the

power to determine one's actions in a way that results solely from

one's own will-from one's own self. In reality this power belongs

only to God, whose actions are determined by his own goodness.

In addition, according to the notion of liberty of indifference the

fact of any action occurring at all, independently of what choice

that action involves, is at least to some extent caused only by the

agent. This means that the agent (as Robert George has

approvingly(!) noted) 109 is to that extent an uncaused cause. But

to be an uncaused cause to any extent at all is an attribute that

belongs only to the divine nature. Subjective rights add to the

notion of being an uncaused cause an entitlement to do whatever

one wants, simply because one chooses it. This extends the

idolatrous aspect of liberty of indifference. It means that one not

only can act as God does, but one can rightly act only for the sake

of one's self.

Put together, these three anthropological notions constitute in

a strict philosophical and theological sense a deification of the

self. They are the unholy trinity of what can be called the

Enlightenment religion. This religion, whose fundamental tenet

is this conception of the deified self, has provided the ultimate

motivation and the strength of the Enlightenment, and has

explained its success in converting people. This success does not

109 Robert George remarks that "whether or not one recognizes Biblical authority or

believes in a personal God, it is true that human beings possess a power traditionally ascribed

to divinity-namely, the power to be an uncaused causing" ("Natural Law and Human Rights:

A Conversation with Robert P. George," in Does Human Rights Need God? [sic], ed. Elizabeth

M. Bucar and Barbra Barnett [Grand Rapids: Eerdmans, 2005], 138). Unsurprisingly, this

statement occurs in the course of a defense of subjective rights. 

238 JOHN R. T. LAMONT

rest upon the utopian promises of progress that the various

Enlightenment movements have made-which is why the failure

of these promises, and the appalling miseries that attempts to

implement them have brought, have scarcely disillusioned people

with the Enlightenment in the least. Instead, its success rests on

the fact that the Enlightenment offers a religious goal, in the form

of an ultimate authority and good to be sought; that making the

self that goal has a powerful appeal to human nature in its fallen

state; and that the depth of sin involved in choosing this goal

produces an extreme form of bondage and spiritual blindness,

which is very hard to break.

This goal has presented itself in different guises-as communism, Nazism, or consumerism-but the fundamental concept

and its appeal remains the same. It is the driving force behind the

vulgar and base consumerism and sexual depravity that characterizes modern society. Previous non-Christian societies would

have found these practices shameful and embarrassing. This

natural human reaction is overridden, and even made use of, by

the Enlightenment religion. This religion gives these forms of

decadence a deeper meaning, the meaning of adoration of the

deified self. The natural guilt and shame they provoke are

transmuted into a proclamation of this self, which by rejecting the

moral law is declaring its total supremacy. The deep and sincere

belief in the human right to have an abortion gets its strength

from being the ultimate expression of the Enlightenment religion.

Its supporters understand that abortion is the murder of an

innocent child, although they may not publicly proclaim this fact

or even consciously admit it to themselves. It is precisely its status

as murder of the most innocent that makes abortion the triumph

of the deified self as ultimate end. (One may speculate that the

emergence of the Enlightenment religion was the end stage of a

pattern of decline that civilizations tend to follow; being focused

first on God in the Christian epoch, then on the created world in

the Renaissance, and finally on the self in the Enlightenmentwith some overlap between the stages, obviously.) 

CONSCIENCE, FREEDOM, RIGHTS 239

This understanding of the Enlightenment religion explains the

steady defeat that the Church has experienced at its hands. The

anti-intellectualism of the counter-Reformation system left the

Church unable to deal with the intellectual attacks of the Enlightenment, and the spiritual weakness fostered by this system

made Catholics vulnerable to the spiritual temptations the Enlightenment offered. But the most important reason for this defeat

was that the unholy trinity of the Enlightenment religion was

taken from Catholic theologians, and the Counter-Reformation

system not only did not condemn, but actually taught, this trinity.

This fact was completely overlooked by Catholics, who usually

saw Protestantism as the original source of Enlightenment

thought-failing to realize that the Reformation was instead one

of the results of the ideas behind the Enlightenment religion, ideas

which had already been developed by nominalists. It is true that

at the same time the Church was teaching the Catholic faith that

contradicted the Enlightenment religion, and that the teaching of

the elements of the Enlightenment religion was done by

theologians rather than officially by the Church, but the theological teaching was so pervasive that its nonofficial character did

not undo its effects. Thus, in addition to the spiritual and

intellectual weakening caused by the drawbacks of the CounterReformation system that have been emphasized above, the system,

to the extent that it was inculcating belief in liberty of

indifference, the authority of conscience, and subjective rights,

was helping to train devotees of the Enlightenment. The

philosophical elements of the Counter-Reformation system, and

the accumulated victories of the Enlightenment over the Church,

were in turn key influences on the debates over religious liberty

within the Church. The content and outcome of these debates

cannot be understood without grasping the nature of these

influences, whose effects were not limited to the progressive side

in these debates. 110

110 I am grateful to Rachael Briggs, Fr. Gerald Gleeson, Geraldine Pace, and an anonymous

review for The Thomist for helpful comments on this paper