Thursday, December 04, 2008

The Birth of Human Rights – Part two

"As regards humans, it is shown that from the beginning of their rational nature, they were born free, as in the law Manumissiones of the digest, Title De iustitia et iure (Dig 1.1.4 )..the reason for this according to Thomas (on the sentences, 2.44.1.3) is that a rational nature in itself is not ordered to some other as its end.. For liberty is a right (ius) necessarily instilled in man from the beginning of rational nature and so from natural law (iure) as in Distinctio 1 (of the Decretum) in the chapter Ius naturale at the words, Omnium una libertas (Dist. 1.c.7)...."

Bartholomew de Las Casas

‘For men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature’

John Locke

Two great contingencies were to arise after 1300 which were to bring rights language and the philosophy of rights to the fore and to begin building a place for it in Western political theory. The first was a great dispute between Pope John XXII and the Franciscans, an order of friars which was founded in the early 13th century. The early Franciscans shunned worldly goods and chose to live a life of poverty, but with the growth of the order, some of the friars became in favour of moderating the traditional insistence on absolute poverty. In reaction to this, an extreme group of Franciscans known as the ‘spirituals’ refused to compromise, insisting that their lives of absolute poverty were a faithful replication of those of Christ and the Apostles. They maintained that they had achieved the highest and most perfect form of the Christian life, abandoning all property and retaining for themselves only a ‘bare factual use of things’. The Pope decided to condemn this, probably because if this were true then the church, which had always owned property, had never exemplified an evangelical way of life. In 1323 it was declared heretical to maintain that Christ and the apostles had nothing or that they had no rights in the things they actually used. The pope’s argument was that there could be no just use of anything without a right of using it.

The dispute inspired the Franciscan friar and scholastic philosopher William of Ockham who joined a dissident group in 1328 and subsequently produced a flood of works attacking the Pope and defending the order’s position. These drew heavily on the established tradition of jurist discourse and contained frequent citations of earlier canonistic texts. Ockham took up the canonist’s argument that there exists a natural right to the necessities of life. The Franciscans had renounced every type of worldly right, to sue in court or to own property, but they still had use of a natural right to use external things which was common to all men and was derived from nature, not from human statute. ‘The friars do have a right’ he argued ‘ namely a natural right’; it was not renounceable because it was necessary to maintain life.

In his later works, William of Ockham was to attack the whole doctrine of papal absolutism, by turning the scriptural idea of Christina freedom into an argument for natural right. Scripture, Ockham said, depicted Christian law as a ‘a law of perfect liberty’, but the Popes absolute power would reduce the people to servitude. Instead the limits of power should be defined. Ockham reminded the Pope that governments existed for the common good, but that there were individual natural rights of subjects, ‘the rights and liberties conferred by God and nature’. Natural Rights were now being used in a new context, to challenge the claims of absolutist government.

By 1500 the natural rights tradition was becoming moribund and with the coming of Machiavelli and the ‘new monarchies’ the concern was with orderly government rather than individual rights. Humanists referred back to the world of Greece and Rome and found arguments for Monarchy, mixed government and republicanism, but none for natural rights. This changed with the European discovery of America and the colonisation of Spanish America. Spanish scholastic theologians began to raise questions about the inhabitants of these lands and considered whether they possessed natural rights that Europeans were bound to respect. Could rights be universal or were some people just natural slaves as Aristotle had taught?.

The most passionate debater was Bartoleme de las Casas, the great defender of the Indians who wrote that ‘all the races of mankind are one’. He argued that Indians possessed human rights, a right to liberty, to own property, to defend themselves and to form governments, claiming that ‘they are our brothers and Christ died for them’. In doing so he appealed to the judicial tradition of the earlier jurists. For example, he used the old maxim that Quod omnes tangit ‘what touches all is to be approved by all’ to prove that Spanish rule in America could only be legitimate if the Indians consented to it. By this he was referring to each individual’s consent, the claim of the majority must not outweigh the rights of minority individuals withholding consent, the minority must prevail. ‘Liberty’ wrote Casas, ‘is a right instilled in man from the beginning’.

In response to this, his adversary Sepulveda referred to Aristotle’s concept of natural slavery and the humanist tradition. Indians, he declared, were barbarians and therefore born to be enslaved. Casas responded by pointing to the cruel and barbaric behaviour of the Spaniards; he then presented an image of wild savage men who lived alone in the mountains like brute animals without any civilised society. Even these men, wrote Casas, the most degraded class of human beings, have rights; specifically a right to brotherly kindness and Christian love. Others such as Francisco de Vitoria used the jurisprudence of the Ius commune and theological doctrine to construct a lucid, clear argument for the natural rights of native Americans. They did possess just dominium, and their lands could not be taken from them without cause.

The writings of the Spanish Neo-Scholastics breathed new life into the tradition and allowed it to flourish in the centuries ahead. The conduit though which the concept of natural rights passed into the modern era was the Dutch Protestant jurist, Hugo Grotius. In his work, De jure belli, Grotius grappled with the meanings of right ("ius") in all of its meanings, attempting to prove that "just wars were fought to defend or assert rights or to punish violations of them". He explored all the meanings of "ius" and defined it as "a moral quality of a person, enabling him to have or to do something justly. Grotius has often been called the "Father of International Law but according to Brian Tierney he might also be called the Modern Father of Natural Rights, for Grotius influenced "all the major rights theorists of the next century, Selden and Hobbes and Locke in England, Pufendorf and Leibniz and Thomasius in Germany, Domat and Pothier in France". With the religious dissent, rebellions and wars that would follow, new situations would arise in which the likes of Locke, Paine and Hobbes would bring natural rights into political discourse. As Tierney concludes in The Idea of Natural Rights, Natural Law and Church Law:

‘The idea of natural rights grew up- perhaps could only have grown up in the first place –in a religious culture that supplanted rational argumentation about human nature with a faith in which humans were seen as children of a caring God. But the idea was not necessarily dependent on divine revelation, and later it proved capable of surviving into a more secular era’.

More than half a century after the UDHR the status of human rights is again precarious due to objections rising from cultural relativism and historicism. There have also been accusations of 'rights inflation' and a ruining of 'the delicate and hitherto durable equilibrium maintained by the common law'. Samuel Huntington, in his Clash of Civilizations, presents our modern culture of rights as a Western peculiarity with no resonance for the rest of humanity. The philosopher Alasdair MacIntyre has declared that "there are no such rights and belief in them is one with belief in witches and in unicorns. Yet as Tierney has argued in a recent essay:

‘A more widespread recognition and effective implementation of human rights in the future is neither inevitable nor impossible.... It is harder to spread ideas and ideals then to export artifacts; but in modern times, even on the level of political thought and practice, the most ancient oriental civilizations have been moulded in part by external influences. China imported Marxism from the West; India and Japan derived their constitutional structures from Britain and America. Moreover, all the great world religions have taught respect for the value and dignity of human life, and this is the only necessary grounding for a doctrine of universal rights.’

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