Villey says, essentially: That development was itself part of the deformation of classical jurisprudence. For him, modern human rights did not represent the culmination of the classical science of law. They represented its displacement. His complaint is that the modern concept of rights puts the individual subject at the center: “I have a right to X.” Whereas classical jurisprudence asks: “What is objectively due to this person in this relationship?” That is an important distinction because the two formulations can sometimes arrive at similar practical conclusions while resting upon very different philosophical foundations.

AI from https://chatgpt.com/:

This passage presents Michel Villey’s critique of the Spanish Scholastics as a turning point in the history of law, especially in the transition from an objective conception of jus to the modern conception of subjective rights.

Villey’s basic thesis

For Villey, the classical Roman and Aristotelian-Thomist understanding of law is fundamentally objective.

• Jus is “what is just” (id quod justum est).
• Justice consists in giving each person his due (suum cuique tribuere).
• The jurist or judge determines the proper proportion or relationship between persons, goods, offices, and obligations.
• Thus, law is primarily concerned with a just order between persons and things, rather than with an individual's personal power to act.

In simplified form:

Classical law: What is the just thing that belongs to each person?

Villey contrasts this with the later subjective conception:

Modern rights: What power, liberty, or claim does the individual possess?

That distinction is the organizing idea of the entire passage.

Where Villey locates the transformation

Villey sees a historical sequence:

Aristotle → Thomas Aquinas → nominalism → Spanish Scholasticism → Hobbes/Locke → modern human rights

He particularly emphasizes William of Ockham and nominalism as an important precursor. According to Villey's interpretation, nominalism's emphasis on the individual encouraged a conception of jus as something possessed by an individual subject.

The crucial transformation is therefore:

jus as the just relationship/object → jus as a power or faculty of the subject

This is why Villey places such importance on dominium.

Dominium and subjective right

The passage argues that late-medieval and early-modern thinkers increasingly identified dominium (roughly, dominion, ownership, or control) with jus.

Instead of understanding a right primarily as the objectively just allocation of something, one could understand it as a power (potestas) or faculty (facultas) belonging to a person.

This produces a radically different conceptual structure:

Person → possesses power → over thing/action/person

That structure eventually makes it possible to speak naturally of a person having a “right” to something, even when that “right” means a personal liberty or legally protected power rather than an objectively determined share in a just distribution.

Why the Spanish Scholastics matter

Villey's controversial claim is not simply that the Spanish Scholastics invented modern human rights.

His argument is subtler: he believes that thinkers such as Francisco de Vitoria and Francisco Suárez, despite presenting themselves as heirs of Aquinas, helped transform Thomistic legal thought by incorporating a subjective conception of jus.

This is particularly significant because the Spanish Scholastics were dealing with questions such as:

• indigenous peoples' rights,
• property,
• political authority,
• sovereignty,
• war,
• commerce,
• natural law,
• relations between peoples.

Their discussions therefore gave the concept of individual rights an important theological and juridical setting.

Villey regards that development negatively because he thinks it changes the very object of jurisprudence.

The crucial disagreement about “human rights”

This leads to Villey's provocative reversal of a common historical narrative.

A common interpretation says:

Spanish Scholasticism developed natural rights and thereby contributed to the historical emergence of modern human rights.

Villey says, essentially:

That development was itself part of the deformation of classical jurisprudence.

For him, modern human rights did not represent the culmination of the classical science of law. They represented its displacement.

His complaint is that the modern concept of rights puts the individual subject at the center:

“I have a right to X.”

Whereas classical jurisprudence asks:

“What is objectively due to this person in this relationship?”

That is an important distinction because the two formulations can sometimes arrive at similar practical conclusions while resting upon very different philosophical foundations.

Hobbes and Locke

Villey then argues that the Spanish Scholastic conception was subsequently secularized and radicalized by modern philosophers such as Hobbes and Locke.

His Hobbes example is particularly important.

For the Spanish Scholastics, dominium naturale could still be understood within a theological order: human dominion ultimately derives from God's authority and the divinely ordered structure of creation.

Hobbes's jus naturale, by contrast, becomes the individual's liberty to act, constrained by whatever restrictions arise from the political order.

Thus Villey sees another transformation:

theological dominion → individual liberty → subjective natural right

And once jus means an individual's fundamental liberty, the language of modern declarations becomes intelligible:

humans possess rights simply by being human.

The deepest philosophical issue

The disagreement ultimately concerns what law is about.

Villey's classical model is approximately:

Justice → objective order → proportion → distribution → jus

The modern model, as Villey reconstructs it, is:

individual → liberty/power → claim → subjective right

That explains his striking conclusion that the rise of human rights involved the “decomposition of the concept of law.”

He does not mean merely that modern people have too many legal protections. His deeper claim is that the very science of jurisprudence changed its object: from determining objectively just relationships to protecting subjective powers and liberties.

But Villey's historical thesis is highly contested

The next section mentioned in your text—Brian Tierney's critique of Villey—is crucial because Tierney challenges precisely this historical reconstruction.

Tierney argues that the idea of subjective natural rights has deeper medieval roots than Villey allows and that it cannot simply be explained as a corruption introduced by Ockham and then transmitted through the Spanish Scholastics.

So there are really two competing historiographical narratives:

Villey	Tierney
Classical jus is fundamentally objective	Medieval thought already contained important forms of subjective rights
Ockham/nominalism contributes to the transformation	The history of rights cannot be reduced to nominalism
Spanish Scholastics contribute to the deformation	Spanish Scholastics participate in a longer medieval development
Modern human rights represent a major conceptual break	Modern rights have significant medieval intellectual antecedents
Rights language displaced jurisprudence's concern with objective justice	Rights language and objective justice need not be mutually exclusive

The really interesting question, then, is whether “subjective right” and “objective justice” are genuinely incompatible concepts. Villey tends toward yes; Tierney's historical work substantially challenges that dichotomy.

If you are studying this chapter, the Villey–Tierney dispute is probably the central historiographical issue: it is not merely a disagreement about Vitoria or Suárez, but about how we should understand the genealogy of natural rights and modern human rights themselves.

Quote:

Michel Villey and the "deformation" of the philosophy of law by the Spanish scholastics Michel Villey (1914-1988) was one of the greatest French legal philosophers of the 20th century. Catholic, conservative, brilliant and polemical in his always very clear and profound arguments. He wrote several fundamental works on the history and theory of law, many of which have been translated in Brazil96. We will focus on just one aspect of his thought, which is central and recurrent throughout his work, namely his criticism of what he calls the "deformation" of law caused by the theory of subjective rights, which underpins modern human rights. This deformation97 of law occurred in the passage "from law (jus) to human rights (jura)", from the objective law of the Greco-Roman tradition, which finds its most exact formulation in the Aristotelian-Thomist tradition, to the subjective rights of the moderns. According to Villey, the objective concept dates to Roman law. For Roman jurists, law is an art (ars) that "has no analogue in the Eastern Empires, in the biblical world of the Old Testament, in the Indies or in China".98. It is an invention that arose in Rome under the influence of Greek philosophy and the dialectical method, in the ancient sense of the term, as "the art of defining and distinguishing the precise meanings of the general terms of language", developed by Aristotle.99 . The purpose of civil law is defined by Roman authors, particularly Cicero, as: "The establishment of a just proportion in the distribution of goods and in the judgement of disputes between citizens". The right (jus) is exercised in order to do justice (justitia), understood as "giving each person what belongs to them or is their due" - suum jus cuique tribuere or unicuique suum tribuere, in which tribuere should be understood as the act of the judge in assigning, i.e. determining the respective right (jus) of each citizen100 . In this objective conception, law is what is just (id quod justum est) or the just thing (res justa) and refers to an objectively just order according to which everyone receives their due in the distribution of goods and positions. This conception of law began to be questioned at the end of the Middle Ages and the beginning of the Modern Age. The main culprits of what he calls the "degeneration" of the Aristotelian-Thomist science of law were William of Ochkam and the nominalist followers of his school, and later the Spanish theologians of the 95 LAS CASAS, B. Tratado sobre los indios que han hecho esclavos. Madrid: Alianza, 1992 (Obras Completas, Vol. 10, p. 230). 96 VILLEY, Michel. The Formation of Modern Legal Thought. São Paulo: Martins Fontes, 2005. IDEM. Philosophy of law. Definitions and ends of law. The means of law. São Paulo: Martins Fontes, 2008. IDEM. Law and human rights. São Paulo: Martins Fontes, 2007. 97 VILLEY, M. Déformations de la philosophie du droit d'Aristote entre Vitoria et Grotius. In: Platon et Aristote à la Renaissance. Paris: Vrin, 1976 (XVI Colloque International de Tours). 98 VILLEY, M. O direito e os direitos humanos, op. cit. 99 IDEM, ibidem. 100 IDEM, p. 62. School of Salamanca, such as Francisco de Vitoria and Francisco Suárez, who, despite affirming their fidelity to the Summa of Thomas Aquinas, ended up following the lead of the modern theologians in favour of a subjective conception of law101 . Villey is explicit about this: First, I think it's a legend that the Scholastics were faithful to St Thomas. [...] In any case, regarding the subject of law or legal theory, I have not been able to find in Spanish Scholasticism the doctrine of St Thomas. [...] Law (jus) has become a subjective right, i.e. the power, the freedom recognised by the individual to behave in a certain way about this or that thing and this or that person. I have the "right" to sign the social contract, to use my property as I wish. This is one of the origins of our "rights of man" and of the citizen, and of our individualistic and liberal right to property102 . He continues: We have seen that for Aristotle, law was a proportion between things distributed among several men. The notion of 'subjective' law, inherited from nominalism (nominalists refuse to conceive of anything other than the individual) and received by Spanish scholasticism, collapsed in humanism because humanism emphasises the freedom of the human person, and following its Stoic sources, seeks what the individual is or is not allowed to do: confusion between morality and law" 103 . The concept of dominium (i.e. property) acquires a breadth that it didn't have before and tends to be identified with the concept of law as a whole (jus). A nominalist like Jean Gerson and his followers had affirmed that dominium is identical to jus and had defined it in these terms: "Property (dominium) is understood to be the power (potestas) or faculty (facultas) of taking over things that are close at hand in order to make lawful use of them in conformity with the law and the rights (iura) rationally instituted (rationabiliter institutas) 104 . The modern theologians, identifying the two concepts, tended to consider the subject as the sole holder of rights and to conceive of the right as the property and appropriation of a subject over a series of rights (iura), whose only limit was given by the law. As one medieval legal scholar, Paolo Grossi, comments: "My freedom coincides with the property I have over myself and my actions, my existence as a free subject consists in a series of 'domineering' behaviours, in short in the property I have over myself".105 . 101 On this subject I refer to my essay: TOSI, Giuseppe. Theological roots of modern subjective rights. The concept of dominium in the debate on the indigenous question in the 16th century. Prima Facie, Year 4, n. 6 - Jan/June, 2005, pp. 42-56. 102 VILLEY, M. Déformations de la philosophie du droit d'Aristote entre Vitoria et Grotius, op. cit. 103 IDEM, ibidem. 104 TOSI, Theological Roots, op. cit. p. 42-56. 105 GROSSI, Paolo. La proprietà nel sistema privatistico della seconda scolastica, in Quaderni fiorentini per la storia del pensiero giuridico moderno, n° 1 (1973), p. 135. This subjective conception of rights would later be radicalised, secularised, taken out of its religious context by the moderns, in particular Hobbes and Locke, to whom Villey devotes his attention. For it is the source of "human right", of his "natural right" (jus naturale). What, in this hypothesis, is taken to be the right of everyone, what should be attributed to them (suum jus cuique tribuendum)? Logically, "freedom", since in this "state of nature" it is assumed that no law restricts the individual's freedom. The Hobbesian notion of law is linked to the tradition of Gerson and William of Ockham, which reduces law to morality, or to the absence of a moral law that generates freedom. The right is a licence, permission to act (of doing). [...] Let's look at the distance that separates this "natural right" from the dominium naturale of the Spanish scholastics. The dominium is a power of government granted by God; a fraction of the power granted to men. Hobbes' jus naturale is an unfolding of the individual's free action that no law can hinder: an emanation of the subject himself, an authentic subjective right. Every man possesses it for himself106 . And he concludes that: The emergence of human rights attests to the decomposition of the concept of law. Their advent was the correlate of the eclipse or perversion, in modern individualist philosophy, of the idea of justice and its instrument, jurisprudence. The purpose of jurisprudence was to measure just relationships. This autonomous art fulfilled its own irreplaceable function. The philosophies of modern Europe have cast it aside. Care for a just distribution disappeared from their works. These non-lawyers, who were the inventors of human rights, sacrificed justice, sacrificed law107 . The consequences are a proliferation or inflation of ineffective rights: 'Men were born equal and free'. Can we be surprised that an image so contrary to reality, so deliberately fictitious of our 'natural' condition, still lingers in our subconscious and is inscribed, in the middle of the 20th century, in the first line of the Declarations of Human Rights?" 108 . What many authors consider to be the most important contribution of the Scholastics to the historical affirmation of human rights is seen by Villey as a "degeneration" of law. We'll see Brian Tierney's criticisms of Michel Villey on this subject below109 . 2.7. Brian Tierney. The origins of the idea of natural rights. 106 VILLEY, M. O direito e os direitos humanos, op. cit. p.145-146)