Stand Up for Your (Subjective) Rights
Essays Society Law

Stand Up for Your (Subjective) Rights

Thomas D. Howes

Jeremy Bentham famously calls natural rights “simple nonsense” and inalienable natural rights “nonsense upon stilts.” Even Alasdair MacIntyre says belief in such rights is “one with belief in witches and in unicorns.” Utilitarians oppose natural rights for obvious reasons, but it is more surprising that some advocates of virtue ethics and natural law do as well.

Most of the controversy among the latter concerns what are called “subjective” natural rights. These are natural rights as they are usually understood: as an individual’s moral privileges or entitlements—be they claim-rights, liberties, powers, or immunities. However, the Latin word ius, which came to mean “right,” originally had a more “objective” connotation, meaning simply “that which is just.” This is how it was defined, for instance, by St. Thomas Aquinas.

Jacques Maritain and John Finnis have both been criticized by other Thomists for endorsing these “subjective” natural rights. A typical story these critics tell is that the idea of rights in our modern sense arises from William of Ockham’s nominalist philosophy. But there are some problems with that narrative. And there are strong philosophical reasons why advocates of natural law theory should instead embrace subjective natural rights. While Ockham is used as an easy scapegoat in the origin story of late modernity’s woes, this lazy narrative obscures the proper uses of “Rights Talk,” a moral grammar that was developed in the medieval and early modern Christian tradition.

Even Ockham Can Be Right . . . Sometimes

As many readers already know, Ockham has been blamed by some for the decline of Christendom. Unlike moderate realists like St. Thomas Aquinas and Bl. Duns Scotus—who affirmed that there was something formally common among members of a kind or species—Ockham only acknowledged that we could form a common conception of different individuals within a class on account of their similarity. Many believe this opens the door to the abandonment of natural law theory, even if Ockham himself did not draw that conclusion.

Likewise, Ockham’s theological voluntarism fits into this narrative because he affirmed that God in His infinite power could have made a different world with an entirely different moral law, maybe one in which adultery or lying were moral—at least this is one interpretation of what he meant. This notion influenced some later thinkers to reduce morality to a covenant willed by God and known only by revelation. Although an understandable development, this was again not Ockham’s own conclusion: he affirmed that by natural reason we could grasp the moral law in the world God has created.

None of this should matter, however, because nominalists and conceptualists are allowed to sometimes be right, as are voluntarists. Even if many have tried to show a connection between Ockham’s account of subjective rights and his conceptualism, voluntarism, or both, nobody has effectively shown that there is any necessary connection. From the beginning, and even before Ockham, there have been those who rejected both nominalism and voluntarism while affirming subjective natural rights.

In sum, if there is no necessary connection between Ockham’s nominalism (or his voluntarism) and subjective rights, it would not have mattered if he were the first to embrace them.

Other Problems with the Ockham Story

Clichéd narratives, even if widespread, often depend on outdated scholarship. In the past, many took Michel Villey’s account of Ockham as the source of subjective rights for granted—that Ockham’s “semantic revolution” began a “Copernican moment” in the “science of law.”[1] Brian Tierney, however, has since effectively refuted that story. It is true that subjective rights play a significant role in William of Ockham’s political writings, but not only is there no necessary connection between his nominalism or voluntarism and his use of subjective natural rights, he was not even the first philosopher or theologian to affirm them.

Tierney, in fact, identifies the idea of subjective rights in myriad texts of jurists and canonists (experts in the Church’s canon law) going back to the twelfth century. Moreover, among theologians and philosophers, Tierney finds the notion in the writings of St. Bonaventure, Henry of Ghent, and Godfrey of Fontaines, all prior to Ockham. But from a Thomistic standpoint, perhaps the most striking affirmations of subjective rights before Ockham are the following:

By concession of the owner one has a licit power of using and this we call a right . . . ; ownership, right and property all imply a power . . . a right is, as has been said, a licit power of using . . . to have a power of licitly using is to have a right . . . a power of licitly using is called a lawful power or a right. (Tierney’s translations).

These statements all come from none other than the fourteenth master of the Dominican Order and devoted Thomist, Hervaeus Natalis. He even made these statements in the context of defending Pope John XXII’s position in the poverty controversy concerning Franciscans like Ockham.

Fast forward to the early seventeenth century, and you find the Jesuit Thomist Francisco Suárez providing without criticism the subjective definition of ius:

The strict meaning of ius is usually properly called right, a kind of moral faculty which each one has either with regard to his own thing or to the thing owed to him; for thus the owner of the thing is said to have a right in the thing, and the worker is said to have a right to pay.

Suárez will also apply this notion when defending the right of self-defense as a basis for legitimate civil resistance. With a few exceptions, such as Domingo de Soto, the other late-scholastic Thomists also embraced the language of subjective rights.

The consequence is thus: if this origin story about human rights, and the liquid modernity which sprung from that source, is just plain inaccurate, then the notion of subjective rights does not seem so wrongheaded as its critics make out to be. Instead, there might be sound uses to this framing of individual rights and live alternatives to its abuses.

The Benefits of Rights Talk

What is most important are the positive reasons for endorsing rights talk. As John Finnis points out, rights are a basic corollary to claims about moral duties. True, not all duties imply a corresponding right, but many of them do.

For instance, I may have promised Bob that I would pay Anne money, but that does not mean Anne has a right to my money just because I have a duty to pay her—but in this case, Bob has a right that I keep my promises to him. There is also the case of general duties, such as those of solidarity: I have a duty to be generous to those less fortunate but that does not mean that this or that person has a specific right to my generosity. Nonetheless, despite such exceptions, the correlation between rights and duties is a strong one.

If we wish to speak about absolute rights, we will have to be more specific. But still, if we can speak of moral absolutes, we can also talk about some absolute natural rights, even if they must be narrowly defined. If I believe that it is wrong, for instance, to intend the death of an innocent person, then I could also say every innocent person has a right to not be intentionally killed. Other subjective rights need not be taken so absolutely and can be qualified according to the context.

But is there a real advantage to rights talk? I would argue that it serves to locate an indispensable ground of correlative duties. It is sometimes said that classical natural law grounds rights in prior duties, whereas modern natural law reverses the direction of dependency. That way of framing it is not very helpful because one can legitimately look at it both ways. Regarding the priority of rights, Heinrich Rommen puts it nicely when he describes natural rights as “an emanation of the dignity of the human person and its autonomous end.” This understanding of rights is already implied in St. Thomas Aquinas’s account of justice as preserving a kind of equality (aequalitas) with others.

It is ultimately because of the worth of others, as our equals, that we owe them the respect implied in any discussion of rights. Talk of rights communicates this fact while “duty-talk” instead reminds us that rights only make sense in relation to what others owe to the right-holder. Both ways of speaking serve in different ways to clarify moral demands and the moral relationships that underly them.

It never sat well with me to hear some say that rights talk reflects an excessively individualistic or selfish attitude. There is nothing selfish about demanding justice for oneself or for others. In my opinion, a community that does a poor job of protecting the rights of its members cannot be called a healthy community. Between atomic individualism and smothering collectivism is a healthy middle ground that some call personalism or relational individualism. Communities are after all made up of persons-in-relation, and to speak of the community divorced from persons-in-relation is to speak of an abstraction. To favor an abstraction over concrete persons is not only senseless but in practice it amounts to favoring those in power over ordinary people, as inevitably happens in collectivist societies.

Uncoincidentally, rights talk is something that emerged in the Middle Ages in a Christian society, with Christianity’s emphasis on the human person as made in the image and likeness of God, as well its emphasis on individual salvation, the lost coin, the lost sheep, as well as individual intention and conscience. Harvard polymath Joseph Henrich even connects rights-talk with the WEIRD psychology he recognizes as unique to Western culture, which he says developed in good part on account of the Church’s marriage norms.

I would, in fact, even go so far as to argue that to affirm collectivist ideals of community, dismissive of the rights of individuals, is a return to a pre-Christian ethos. Everyone, especially Christians, should be cautious about deceptive rhetoric that plays community against individual rights. To put it bluntly, it is more pagan than Christian.

It is true that rights talk can easily be abused. Public discourse tends to involve capricious demands for rights without any justification. It is as if people thought that the assertion of a right bypasses the need for any argument. That is a problem. But it is not much different from when people assert the “natural law” or “the common good” in place of an argument. The problem, in either case, is not rights, natural law, or the common good, but the failure to properly defend one’s understanding of them. Abusus non tollit usum—the mere assertion of rights or duties, without the deeper accounting of natural justice, is the nonsense of witches and unicorns, not rights themselves.

  1. "Révolution sémantique a elle seule riche de conséquences . . . Nous sommes ici-même au moment copernicien de l'histoire de la science du droit."
    Michel Villey, La Formation de la Pensée Juridique Moderne, 4th ed. (Paris, 1975), 261. ↩︎

Thomas D. Howes, having earned his PhD in Philosophy at CUA, is a Research Fellow with the Austrian Institute in Vienna, as well as a Postdoctoral Fellow with the James Madison Program at Princeton University, where he is a Lecturer. He is currently writing a book provisionally titled Natural Law and Constitutional Democracy. A regular writer, he is is a Contributing Senior Editor for The Vital Center. He invites you to follow him on Twitter.

Featured image: Alegoría de la Justicia y la Paz painting (c. 1754) by Corrado Giaquinto via Wikimedia Commons.