Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, August 29, 2007

The Medieval Foundations of Modern Human Rights

In light of Jack Balkin's assertion that modern theistically motivated human rights thinking grows out of the Enlightenment and my own inadequate response to Jack, I asked a couple of medievalists to comment on the medieval foundation of modern human rights.  I am thankful that law professor Charles Reid responded with this thougthtful post:

"One of the most basic features of theistic rights thought is a respect for the integrity of the human person.  I would submit that the modern vocabulary of natural rights/human rights has its origins in the twelfth and thirteenth centuries.  And standing behind this development is a sense of the person as capable of seeking for himself the goods of salvation.  Allow me to make the point indirectly, first, and then more directly:

My indirect argument would focus on the linguistic universe that came to surround rights in the thirteenth century.  The medieval canon lawyers began to list synonyms for the word “right” (ius).  These synonyms included:  Libertas (liberty); Potestas (power); Facultas (faculty or capacity); Immunitas (immunity or privilege).  These are the main synonyms although there were a few others also.  What the use of these synonyms allowed for was the development of a concept of the human person that was capable of self-direction.  This self-direction was capable of manifesting itself in a variety of contexts.  Some contexts would be quite mundane.  Take medieval elections:  The Church used elections to resolve an enormous number of problems – bishops were elected by cathedral chapters; cathedral chapters retained the power to vote on important decisions; guilds and sodalities voted on all sorts of business matters; and so on.  There is a vast number of papal decretals indicating that medieval elections were hotly contested.  The presupposition behind these elections, however, was constant:  that the person was capable of governing his own affairs in community with others.

Other acts of self-direction were quite profound.  The new rights vocabulary also allowed the canonists to speak of the right to make basic choices on how best to seek the spiritual development required to achieve salvation.  One had the liberty to seek a vocation to the priesthood (one did not have the right to compel a bishop to ordain one a priest, of course, only the right not to be impeded in this vocation by third parties).  The life of Thomas Aquinas contains a wonderful illustration of this:  Thomas’s family opposed his desire to become a Dominican friar; he was actually imprisoned by the family for a while.  But because he had a basic right to seek his vocation, his family eventually had to cease and desist in their efforts to impede his quest.

Not only in the area of religious vocation, but in the decision to marry, freedom became the constitutive element.  To marry, one had to exchange freely given consent.  Free consent became the foundational element of marriage.  Family coercion could and did serve to invalidate marital decisions.

These developments open the door to my “direct” argument:  in the schools of philosophy beginning in the latter twelfth century we see important parallel developments:  first, the human personality comes to be conceived of as possessing a basic volitional capacity.  The personality has the power of choice; and the power to be bound by those choices.  And, related to this, the human soul comes to be conceived of in highly individualized terms.  An early medieval writer like Dionysius the Areopagite understood the soul upon death to become absorbed into a larger divine “godhead.”  Now, however, beginning in the twelfth century, we see a highly developed notion of individualized survival after death.  Not that it was not present before.  But it is much more highly developed beginning in the twelfth century.

And, this, then, allows lawyers and philosophers to take the final step:  to argue for the integrity of the person based on the possession of these rights.  Maxims of law were developed specifically for his purpose, most especially the maxim, that no one should be deprived of his right “sine culpa” – without fault.  And when we get this notion of due process, we stand at the door of modern conceptions of right.  And this notion of due process was firmly in place by the middle thirteenth century."

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Scaperlanda, Mike | Permalink

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