NATURAL LAW AND HUMAN RIGHTS

Ralph McInerny*

In what follows, I shall do three things. First, I shall review the

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

I. THE RISE OF HUMAN RIGHTS

The name most readily associated with the insistence that individual
rights, natural rights, are a modern innovation, having no counterpart in
ancient or medieval jurisprudence, is that of Michel Villey. Over a long
career, in season and out, he has argued that all efforts to find in the
Aristotelian dikaion or the Roman ius anything like what we mean by a right
are misbegotten.[1]
The just, whats fair, the dikaion or iustum is a thing, a relation or
proportion, out there, to be objectively determined by the judge so that the
contentions of the parties to a suit are adjusted. The shift from the just as a
thing (in a large sense of the term, as out there, an object) to something
someone or everyone has, in virtue of which one can make claims on some

or all others, is fundamental and Villey traces its origins to the so-called
Second Scholasticism, the Iberian renaissance at Salamanca when, because
of the unnoticed inroads of nominalism, rights began to be spoken of as
inherent in individuals.[2] Villeys association of human rights and nominalism
has been contested,[3] and of course Villeys insistence would have been
unnecessary if there were not many who argued for a continuum between
the ancients and moderns.
Perhaps no one would disagree with Villeys reading of Aristotle, the
Roman jurists, and St. Thomas Aquinas, when he argues that the just,
the dikaion, ius, do not name a quality or faculty or power of individuals.
That there is no suggestion whatsoever in ancient or pre-nominalist
medieval thought of rights in the modern sense has been contested,
however.[4] But even when Villey is accused of overkill in making his basic
historical point, most critics agree that the mark of the modern is to elevate
a theory of society and law on individual human rights and in this the
modern surely differs from the ancient and medieval. Moreover, Villey has
pointed out, supposed instances of subjective rights in Gaius, for instance,
have a distinctly odd ring to them. For example, reading of a ius altius
tollendi, we would naturally think of this as a householders right to add a
story to his house. But there is also a ius non extollendi, and this must sound
odd to us; what could it mean to have a right not to build higher? Unless of
course we imagined an ancient paterfamilias being importuned by his
household to lift his roof. But that is not what is meant. There are certain
situations in which it is fair, just, objectively right, for one to add to his
house and other situations in which it is not. What right means in that sense
is the object of the judges sentence or judgment. Villey also draws

attention to the right of a parricide to be put in a sack full of vipers and

dropped into the Tiber. It is difficult to imagine a Human Rights Commission
coming to Lizzie Bordens aid to insure that she be given her rightful sackful
of snakes and a dip in the river.
Of course if Villeys point were merely a verbal one, namely, that the
term right has altered its meaning in the course of the centuries, we
might be reminded of C.S. Lewis and his Studies in Words. Lewis sought to
warn the modern reader that if he takes words in the sense they have
nowadays in reading Shakespeare, say, misunderstanding will ensuewords
like genius and nature, for example, have meanings in medieval and
Renaissance literature they do not have for us. But one cannot miss in
Villeys tone the assumption that we are witnessing, not merely an
alteration of meaning, but also a decline when the term right slides
toward an almost exclusive use as the claims an individual can make.
As a devout Catholic, however, Villey could not have missed the way
in which such documents of Vatican II as Gaudium et Spes and so many other
magisterial documents employ without hesitancy the language of human
rights.[5] Indeed, he dedicates Le droit et les droits de lhomme to John Paul
II fihialement ces quelques rflexions suscite par son discours sur les
Droits de IHomme. In his later writings, he concedes that, given the
growth of the modern state, talk of rights as protective claims against state
encroachment makes increasing sense, but this is a reluctant agreement
since Villey remains convinced that most rights claims are chimeric.
I cite Villey here to stand for all those scholars who see contrast and
conflict between natural law and natural rights. Although he would not
perhaps see his views in terms of that division, Alasdair Maclntyre had been

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

Lacking any such social form, the making of a claim to a right would
be like presenting a check for payment in a social order that lacked
the institution of money.[6]

In more recent books, Maclntyre has continued his critique of modernity,

but, as if in response to charges that he is a relativist, has honed the
techniques he feels are necessary if anything like communication between
different traditions is to take place.[7] It is a large question whether
Maclntyre can be located in terms of the opposition between natural law
and natural rights. For the nonce he does service in this paper as, along with
Villey, one of the most authoritative questioners of human or natural rights.

II. RECONCILING THE TWO TRADITIONS

While there are disputes as to when precisely it beginsand to some

degree about its noveltythe modern theory of human or natural rights is

generally recognized to be based on so different a view of man than that

which grounds natural law that any effort to reconcile these traditions must
seem quixotic. No doubt there are many who thoughtlessly use natural law
and natural rights as though they were simply synonymous. It is far more
interesting to find considered and serious efforts to relate and reconcile the
two traditions.

A. MARITAIN ON HUMAN RIGHTS

Jacques Maritain addressed the problem of natural law and natural rights
on a number of occasions, but for purposes of this paper, the treatment
in Man and the State will be taken as canonical.[8] The problem arises when
Maritain confronts the problem posed by the fact that signatories of the
1948 Universal Declaration on Human Rights held radically different views of
what is human and what is right, to say nothing of democracy, which figures
essentially in the document. Maritain states a thesis: men mutually opposed
in their theoretical conceptions can come to a merely practical agreement
regarding a list of human rights.
Maritain, who served as French ambassador to UNESCO, was not deluded
about the practical situation. The member states represent different and
conflicting ideologies, philosophical and religious traditions, cultures,
histories. Agreement by their representatives on such a declaration as that
of 1948 thus must seem either merely verbal or cynical or hopelessly
confused. The philosophical question that arises has to do with the rational
foundation of human rights. He puts his own cards on the table immediately.
The philosophical foundation of the Rights of man is Natural Law [80].

Distinguishing the many and various theories of natural law from natural law
itself, Maritain puts forth his own account which will reestablish our faith
in human rights.

The true philosophy of the rights of the human person is based upon
the true idea of natural law, as looked upon in an ontological
perspective and as conveying through the essential structures and
requirements of created being the wisdom of the Author of Being. [84]

Maritain sees a natural law tradition that goes back through Grotius and
Suarez and Francisco Vitoria to Thomas Aquinas (He alone grasped the
matter in a wholly consistent doctrine, which unfortunately was expressed
in an insufficiently clarified vocabulary).[9]The first element of natural law
is an ontological one, by which Maritain means that there exists a human
nature, thanks to which every human person is gifted with intelligence and
is capable of pursuing ends in a way for which he or she is answerable. This
nature is the basis for judgments of the normal functioning of the agent
whose nature it is. A proper understanding of what man is thus generates
knowledge of what man should be and do. The law of mans nature is a
moral law. This ontological element is both a given and an ideal.
Maritain calls the second element of natural law gnoseological, by
which he means our grasp or knowledge of the ontological element. This
knowledge is one of the prime instances of connatural knowledge: we do not
grasp the law of our nature in concepts and theories: It is obscure,
unsystematic, vital knowledge by connaturality or congeniality, in which the
intellect, in order to bear judgment, consults and listens to the inner

melody that the vibrating strings of abiding tendencies make present in the
subject [91-92].
Is Maritain unaware of the breach others have seen between the
natural law tradition and the tradition of human rights? Not at all. But he is
convinced that antagonism between the old and new rights of man is
overstated and far from insuperable. Here he has in mind as new rights the
social and economic rights insisted on by Marxists. By the same token, he
sees no insuperable obstacle to aligning natural law and natural rights in the
old sense.
One is nonetheless somewhat surprised at Maritains confidence about
the compatibility of natural law and natural rights. Indeed, he takes modern
lists of rights as just what natural law is meant to ground. That there might
be other theories of those rights which are in conflict with his theory does
not disturb him because he has distinguished the knowledge of the natural
law from the natural law that is known. What is known is the way things are
and theories either get that right or they dont. The task then is not to get
the other theories to capitulate to his theory, but to get them all in accord
with what they purport to explain.

B. FINNIS ON RIGHTS

The very title of John Finnis masterly book of a decade ago Natural
Law and Natural Rights[10] calls attention to the two traditions. Finnis
task is half completed before he turns to an explicit treatment of rights but
he then observes that his whole book has been about human rights, which he
takes to be synonymous with natural rights. Indeed, The modern grammar

of rights provides a way of expressing virtualily all the requirements of

practical reasonableness, the latter phrase itself being equivalent for
Finnis to the tradition of natural law.
Is Finnis unaware of the dramatic difference others have found
between natural rights and natural law? Far from it. He provides an
excellent sketch of the history of the use of the term ius from St. Thomas,
where it retains the sense it had in Roman law, to a dramatic shift that
occurs with Suarez and Grotius and peaks in Hobbes opposition of ius and
liberty. With Locke right becomes all but defined as liberty. The major
difference, Finnis observes, is that in Roman law, the right was an objective
proportion, a relation, what the judge was guided by when he set things
aright. After the great change, however, a right is something someone has.
Despite this, Finnis is confident that rights talk provides both a
vocabulary and a grammar which will enable him to give an alternative
expression of the version of natural law he has developed in conjunction
with Germain Grisez. The treatment of rights by Finnis, far from being
merely the appropriation of a grammar, amounts to a noteworthy
contribution to the theory. He adopts and adapts Hohfelds analysis of
rights, according to which rights always involve a triadic relation between
one person, one act-description, and one other person. Claim-rights, liberty,
power, and immunity are deftly defined. For purposes of human rights,
claim-rights and liberties are most important, and claim-rights have duties
as their correlatives, while liberties have as their correlative the absence or
negation of duties. Whether or not a claim-right requires an identifiable
person for whose benefit the duty has been imposed is a matter of
stipulation. Finnis contrasts that technical problem with the philosophical

question as to what it is to have a right. He identifies two theories, the

benefit theory and the choice theory of his mentor, H.L.A. Hart. Finnis
himself can perhaps be described as a modified choice-theorist, but then he
suggests that Hart too modified his view. The choice theory arises because it
regards the benefit theory as seeing rights simply as the reflex of rules
which impose duties. Hart taught that moral rights amount to a branch of
morality which seeks to determine when one persons freedom may be
limited by another. On this view, the point of rules which entail or create
rights is that such rules specifically recognize and respect a persons choice,
either negatively by impeding or obstructing it (liberty and immunity) or
affirmatively by giving legal or moral effect to it (claim-right and power)
[204]. But Hart came to see that choice theory was inadequate, writing that
the core of the notion of rights is neither individual choice nor individual
benefit but basic or fundamental individual needs.[11] Unsurprisingly
perhaps, Finnis sees this as identical with his own notion of basic aspects of
human flourishing.

we may safely speak of rights wherever a basic principle or

requirement of practical reasonableness, or a rule derived there from,
gives to A, and to each and every member of a class to which A
belongs, the benefit of (i) a positive or negative requirement
(obligation) imposed upon B (including inter alia, any requirement not
to interfere with As activity or with As enjoyment of some other
form of good) or of (ii) the ability to bring it about that B is subject to
such a requirement, or of (iii) the immunity from being himself
subject by B to any such requirement. [205]

In short, as he predicted, Finnis is able to recast his whole theory into

rights talk. The benefit theory of rights has been shown by Hart to be only a
special case of the choice theory, so we are prepared for Finnis steady
correlation of rights and duties. In his view, the modern vocabulary and
grammar of rights is an instrument for reporting and asserting the
requirements of a relationship of justice from the point of view of the
person(s) who benefit(s) from that relationship [205].
No wonder, then, that after having sketched the great shift in the
meaning of right that marks the modern age, Finnis says that there is no
need to turn back the clock. Indeed, he finds the modern idiom of rights
more

supple

and,

by

being

more

specific

in

its

standpoint

or

perspective, capable of being used with more differentiation and precision

than the pre-modern use of the right (ius) [209].
Accordingly, his treatment of the Universal Declaration of Human
Rights of 1948 provides not only a keen analysis but a general acceptance of
it and similar manifestos. His attention is drawn to the specification of what
can legitimately limit the exercise of a right. To say that the exercise of
human rights is subject to the common good is otiose, For the maintenance
of human rights is a fundamental component of the common good [218].

On the other hand, we can appropriately say that most human rights
are subject to or limited by each other and by other aspects of the
common good, aspects which could probably be subsumed under a
very broad conception of human rights but which are fittingly

indicated (one could hardly say, described) by expressions such as

public morality, public health, public order.[12]

In other words, we could say all we have to say using rights talk alone.
Thus it is that John Finnis provides an extended basis for his
contention that natural law and natural rights can be regarded as two sides
of a coin, related generally as duty and right. The modern use of right to
mean something someone has turns out to be simply a restatement of the
requirements of justice from the side of the recipient, so to speak. But it is
not simply that the old talk can be translated into the new, Finnis shows a
preference for the new and on occasion goes to some lengths to sing its
praises. [220-2 1][13]

C. ROUSSEAU ON RIGHTS

The Rousseau I have in mind is not Jean Jacques but Felicien, whose
1982 book, a masterful reading of the fundamental Thomistic texts on
natural law, conveys the spirit of the Faculte de Philosophie at Laval
University in its golden age.[14] In the course of his excellent book Rousseau
takes exception to a remark of dEntreves to the effect that Thomas
account of natural law lacks that which is distinctive of the modern age,
namely a doctrine of rights.[15] Au contraire, says Rousseau, and proceeds to
argue the opposite.

Car La connaissance de la loi naturelle, scion iui, repose tout entire

sur une question de droits, et de droits rconnus par la raison
naturelle, donc de droits inalienables face a La legislation positive
de LEtat. Mais La coherence de son expos, a ce sujet, est telie
quelle naurait jamais autoris lattribution dune primautC a cette
forme de droits naturels transforms, sans pius, en revendications
subjectives. [159]

What rights does Rousseau imagine that Thomas teaches are grasped
by natural reason, even though he agrees that these cannot be transformed
simply into subjective claim-rights? His case for rights reposes on a remark
Thomas makes a number of times to the effect that, while sin obscures
natural law precepts having to do with love of God and neighbor, such
obscurity never extends to self-love and the love of ones own body.[16] Is
Rousseau suggesting that inalienable rights arise from self-love? Well, he
quickly dissociates Thomas from Locke, feeling the latter, under the
influence of a decadent nominalism would turn men into little divine
monads. For Thomas, man is by nature a sociable animal, made for living
with God and other men, according to his most proper inclinations. The
individual can claim natural rights only if he begins by recognizing his
duties with respect to the natural rights of others. From the outset, the
search by naturally sociable man for his natural rights is marked with the
seal of solidarity [163].
In short, Rousseau is suggesting a reciprocity of duties and rights. If I
am obliged to give another his due, the reverse of this is that he is obliged
to give me my due. Rights-claims make no sense apart from this social

interaction. Fortin calls this a stillborn attempt to demonstrate that

Thomas doctrine is nothing but an earlier version of the modern rights
theory, shorn of its individualism.[17] The suggestion is certainly an
inference from what Thomas actually says since, as Fortin observes, All of
the texts adduced in support of this paradoxical conclusion speak, not of
rights, but of duties and obligation. Rousseau is not at all clear that what
he is proposing is a restructuring of Thomas doctrine of natural law so that
it seems amenable to a rights interpretation, but in the course of this
discussion he is anxious to dissociate Thomas from the modern doctrine of
rights he was initially anxious to associate him with. Surely it is fanciful to
call the decalogue the oldest charter of the rights of man [173].
Despite the grandiose title of his book, Rousseaus claim that Thomas
doctrine of natural law is just as such a theory of natural rights, leaves
untouched the difficulties Maritain acknowledged and wholly lacks the
subtlety of Finnis analysis of rights. One would have expected a sustained
and detailed effort on Rousseaus part to confront the human or natural
rights tradition and to spell out his contention that in Thomas we have a
version of rights theory without those aspects of it which make any natural
lawyer wary.

III. NATURAL LAW AND NATURAL RIGHTS

Thus far I have sought to show that there is a fairly clear opposition
between those who see the rise of natural rights as an effective rejection
both of natural law and the presuppositions of natural law and those who

see talk of rights as more or less easily graftable onto the tree of natural
law.
Were one to take this simply as a matter of the interpretation of St.
Thomas Aquinas or the exegesis of Thomistic texts, a division of opinion
would swiftly make itself known. On the one hand, there is the emphatic
and generally authoritative voice of Dom Odon Lottin, who states quite
categorically that there is no trace of the modern sense of a right in the
decretist or theological literature of the twelfth and thirteenth centuries. In
those texts, ius preserves what Lottin calls its primitive, objective sense. So
too, while to modern ears law evokes primarily the notion of obligation,
the binding of the will of its subject, the decretists and theologians Lottin
has studied see law primarily as a principle of order, a rule of life, a norm
for

morality.

That

is

why,

he

concludes,

the

medievals

used lex and ius interchangeably.[18] Whenever St. Thomas speaks of what
we would call a right, he uses such terms as is licit (licitum) or power
(potestas), as when speaking of private property, self defense, etc.
Others have found such claims astounding, and advance texts in which
right in the subjective sense seems in play.[19] The efforts of Maritain, Finnis,
and Rousseau, as indicated earlier, are not isolated irenic efforts, but
representative of a school of interpreters of St. Thomas.
I mentioned earlier that Michel Villey seemed somewhat startled to
find that his Church had come to use the language of rights with almost as
much abandon as anyone else. Rights claims proliferated in conciliar and
other magisterial documents. InDonum Vitae, Cardinal Ratzinger spoke of a
right to be born by natural childbirth. The pleasure the Catholic might find
in mocking growing lists of human rights is dimmed when he finds the

Magisterium addressing him with this same language. What is the

explanation of this shift?
In what I regard as an all but incredible account, Father Joseph Joblin,
in one of the two papers prepared for discussion at an international
conference organized by the Pontifical Council for Justice and Peace in
November of 1988, presents the emergence of human rights as the basis for
political society as pretty much an unequivocal plus and the Churchs
adoption of this basis as more or less progress. He draws attention to the
remarkable change in the Churchs attitude, but suggests that the change
may be more apparent than real. The Churchs conversion on the matter
is put into quotation marks. Undeniably, there is the historical record of Pius
IX, Gregory XVI, and Pius VI. The last named pope commented scathingly on
the 1789 Declaration of the Rights of Man, calling it madness.

This absolute freedom is established as a right of man in society. It not

only guarantees him the right to not be disturbed because of his
religious opinions, but it also gives him licence to think, speak, write,
and even print with impunity everything which the most unbridled
imagination can suggest about religion. It is a monstrous right which
seems nonetheless to the Assembly to result from the innate quality
and freedom of all men . . . a chimerical right . . . contrary to the
rights of the supreme Creator.[20]

Not precisely the tone of Gaudium et Spes or of almost every

encyclical, allocution, and animadversion of the present pontiff.

Joblin formulates the following propositions to sum up what he calls

the historical development of human rights.

1. The thread or theme running throughout the history of Western

ideas is the deepening of the concept of human dignity.
2. The implementation of this concept today implies pluralism, given
the present-day intermingling of different civilizations and systems of
society.
3. The State can no longer be considered as being invested with the
mission of imposing a concept of human rights which becomes an
ideological or religious system.
4. The Church must be a sign of the aspirations of people for unity
despite their differences. Christians have the responsibility of
translating this need into their everyday lives by trying not to impose
their point of view, but by refusing to cooperate in those actions
which they judge contrary to the true interests of the human person,
whatever the consequences may be. [46]

By any reckoning, this is surprising. If the Church has not undergone a

conversion, it seems clear that Father Joblin has. But it is an uneasy
conversion. Does he really think there has been a deepening of the concept
of human dignity? Given the admitted, even celebrated, pluralism of
accounts of what that dignity might consist in, it is difficult to grasp his
point. Of the state, he accepts a purely procedural conceptionthe state is
a referee of supposed moral neutrality. The Christian point of view is

treated as a subjective quirk, not to be wished on others, though Christians

will not of course actively cooperate in activities injurious to their
conception of the dignity of the human person. If this were put forth sadly
as the best we can hope for, it would be one thing, but to have this meager
menu stand for progress is truly astonishing.
If there is to be any conjunction of the natural law tradition and
natural or human rights, the latter are going to have to be grounded in the
same thing as the former: the way it iswith the world, with man, with his
destiny. To speak of a pluralism in this regard would seem to be bankrupt
since among the plurality of views would doubtless be contradictory
opposites. That human society can be variously arranged in keeping with the
precepts of natural law is scarcely a deliverance of modern thought. But of
course that cannot be what Jablot means. He has defined human dignity in
such a way that the only legitimate regime would be democracy, but
participation amounts to pushing ones subjective views, making claims on
others, demanding exemptions from the judgments of others as to what
ought to be done or what may not be done. No wonder Jablot embraces
human rights in what would appear to be the most impoverished sense of
the phrase.
It should escape no one that, if the Church and Magisterium speak of
human rights and the dignity of the human person this is not on the basis of
what is taken to be one opinion or view among many. It is because the
human person, any human person, is what he is that we owe one another
things in justice. In the Maritain or Finnis manner of seeing rights talk as the
recipients view of the relation of justice, rights have to be grounded in
what Maritain at least would call the precepts of natural law. But surely not

all exponents of and defenders of rights would agree, and agreeing to

disagree does not seem to be much of a foundation for rights.
Rights as the reverse of obligations do not begin to cover the
pullulating claims of rights, the lengthening lists of non-negotiable demands,
the novel assertions put forward as somehow self-evident. To the degree
that the concept of human rights can be accommodated by the natural law
tradition in which St. Thomas moves, the phrase human rights will be
equivocal as between Thomists and most of their contemporaries.[21]