The birth of human rights – part one

‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

The Declaration of Independence of the Thirteen Colonies - In Congress, July 4, 1776

‘the very principle of inalienable human rights, conferred on many by the Creator, grew out of the typically modern notion that man, as a being capable of knowing nature and the world, was the pinnacle of creation and lord of the world. This modern anthropocentricism inevitably meant that He who allegedly endowed man with his inalienable rights began to disappear from the world....The existence of a higher authority than man himself simply began to get in the way of human aspirations.’

Vaclav Havel – The search for Universal Laws

The idea of human rights is one which many in the West feel should have universal significance for all peoples; and yet throughout its history, the concept has been precarious and its future far from secure. Despite attempts by some scholars to retrospectively universalise human rights - two examples being the depiction of Genghis Khan, and various Chinese emperors by Nikolas Gvosdev as ‘early champions of human rights’, and the dubious baptism of the Cyrus cylinder by the Shah of Iran as the ‘the first human rights charter in history’ – most historians recognise that the story of human rights is the history of a western construct. All civilized societies have cherished ideals of justice and right order, but they have not normally expressed those ideals in terms of individual rights. It would be hard to imagine a Hobbes or Locke emerging in a Confucian culture where the individual is one who is born into relational obligations and responsibilities; and the societal emphasis is on the readier suppression of individual differences and aspirations. Yet the emergence of natural rights in the west was certainly not inevitable. Plato’s ideal society contained no reference to such an idea. Despite the moral high point of Seneca’s stoic philosophy, Roman society remained a military despotism with scant regard for universal human dignity. Thomas Aquinus seems to have been more concerned with the duties of rulers. Instead, as Brian Tierney has documented in ‘The Idea of Natural Rights’ the concept found its unlikely birth from the development of Church canon law from ancient jurisprudence.

By the 12th century, Medieval Europe was experiencing a new vitality. Great networks of commerce were forged, Universities and great Gothic cathedrals were being erected and the towns and cities enjoyed a fresh and vigorous life. This period ushered in a social, political and economic transformation, and an intellectual revitalization of Europe with strong philosophical and scientific roots. In religious life there was a new emphasis on the individual person, upon such matters as individual intention in assessing guilt, individual consent in marriage and individual scrutiny in conscience. Accompanying this was a preoccupation with rights. Monarchs began to assert their rights against the papacy. Other figures such as Thomas a Becket defended the rights of the church against the monarchs. Within the interlocking rights of feudal society the communes and guilds emerged which began to claim specific rights and freedoms for their members. This was to culminate in the 1215 Magna Carta which forced King John to recognise the rights of Lords, Vassals, Merchants, all free Englishmen and the church which was to be ‘free, and shall have all its rights entire’ . These rights mentioned in these examples were those of particular persons and classes. Natural rights themselves would emerge from an unlikely source, the canon law of the medieval church.

The evolution of rights in European thought began with the "Renaissance of Law" in the late-eleventh and early twelfth century. During the 12th century there was a great revival of legal studies, centred around the city of Bologna in Italy. Europe was emerging from centuries of near anarchy and there was a perceived need for more adequate systems of law. In 1100AD the whole corpus of Roman Law was recovered and in 1140 Gratian’s Decretum was produced. This was an immensely influential codification of church law, an attempt to create a new structure of universal jurisprudence for the Christian church. The work included rules and regulations but also documented the judicial life of the church over the previous 1,000 years. Gratian's sources were Roman law, the Bible, the writings of (or attributed to) the Church Fathers, papal bulls, the acts of church councils and synods. These two branches of law, Roman and canon, quickly merged into a curriculum in which students studied both and received the degree of "Doctor utriusque iuris," Doctor of both laws.

The Decretum proved to be highly influential and many different commentaries were written on the work; these are known as ‘glosses’. The first chapters of the Decretum contained several different and inconsistent uses of the term ius naturale, ‘the law common to all beings’. Gratian wrote for example that by natural law, all property was common. But he subsequently wrote that human law contrary to natural law was vain and void; so how could the existence of property held under human law be justified?. It was clear the term natural law was being used in different contexts with different meanings, so commentators began to explain the differences. Hugaccio, for instance, wrote that

"Not all the examples of ius naturale given below refer to the same meaning of ius naturale . . . But, lest the mind of some idiot be confused, I will diligently explain them all."

In developing a number of senses of natural law, the jurists were creating a meaning which was not apparent in the ancient text. Their society was a more personalist, rights base culture and consequently they added some radical definitions. The language of the 12th century canonists is in some ways reminiscent of the Stoic doctrine of a natural law in man, but a decisive shift had occurred. For some of the Stoics and Cicero there was a force in man that allowed him to discern the objective natural law which pervaded the universe, a sort of cosmic determinism. The canonists reformulated this objective natural law as as a power, force or faculty somehow inherent in human beings, an ability rooted in human reason and free will to discern what was right and to act rightly. The canonists succeeded in formulating a foundation for the doctrine of natural rights where Stoic reflection had failed.

Natural right was defined for example, when the canonist Rufinus commented on Gratian's "ius naturale," he made the observation that "Natural 'ius' is a certain force instilled in every human creature by nature to do good and avoid the opposite. This Christianized definition of "ius naturale" became commonplace. The greatest canonist of the century, Huguccio, clearly perceived the idea of "natural right" in Gratian's texts. As Tierney explains:

In his more lenient moods, Huguccio did acknowledge that ius naturale could mean a rule of conduct, a "judgment of reason"; but his was a secondary, derivative meaning. For Huguccio, ius naturale in its primary sense was always an attribute of individual persons, "a force of the soul," associated with human rationality.

Once this definition was introduced the concept could be developed from rightful rules of conduct under ius naturale to licit claims and powers residing in individuals. Among the most radical devised by the medieval canonists was a right of the destitute poor to the necessities of life, even if this meant appropriating for themselves the surplus property of the rich. Huguccio was, again, a key figure. He declared that by natural law we should keep what is necessary and distribute what is left to the needy. This is particularly true in times of famine and great need. Later jurists expanded Huguccio's thought and formulated a "right" of the poor to steal or to take food in times of need. As the foremost jurist of the thirteenth century, Hostiensis, put it:

"One who suffers the need of hunger seems to use his right rather than to plan a theft"

As Tierney points out, the natural rights of the poor to subsistence became a commonplace of medieval and early modern thought. At the end of the seventeenth century, John Locke could express this idea as follows "He has given his Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him when his pressing Want calls for it". Locke could also write that "Charity gives every man a Title to so much out of another's plenty, as will keep him from extream want."

In presenting subjective definitions of ius naturale, the canonists had come to see that an adequate concept of natural justice had to include a concept of individual rights. By the year 1300, the jurists of the Ius commune had developed a sturdy language of rights and created a number of rights derived from natural law. During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedure as being rooted in natural, not positive, law. The jurists also began to argue that the right to appear and defend oneself before a court of law—what we should call a right to due process—was not just a part of the civil law of particular nations but rather was grounded in the universal natural law. They argued that, just as there was a natural right of self-defense against physical assault, so too there should be a right to defend oneself against legal charges.By placing these rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by the human prince. The prince had no jurisdiction over rights based on natural law; consequently these rights were inalienable.

The middle of the 13th century saw a new context for rights language, one which would have far reaching consequences. Pope Innocent IV, a great student of the Canon law faced the issue of whether rights to property and the creation of licit governments belonged to only Christians, or the whole world including infidels. Following some debate Innocent wrote that:

"God makes his sun to rise on the good and the wicked and he feeds the birds of the air….ownership, possession and jurisdiction can belong to infidels licitly . . . for these things were made not only for the faithful but for every rational creature."

This text was to be repeated in canonistic commentaries and was eventually adopted by theologians to defend the rights of non Christians in an unexpected context.

The achievement of the Decretists was to create a language within which a doctrine of natural rights could be expressed by generations of later thinkers. Their definitions of ius as "faculty" or "power" were to be frequently expressed by jurists and political theorists down to the time of Grotius. Already 1300 a number of natural rights were coming to be recognized, such as the rights of the destitute poor, the right of self-defense against physical assault or in a court of law, rights in marriage. Even the rights of infidels. But this was only a beginning and did not represent a fully coherent doctrine. New situations were soon to arise in which rights language would be developed and brought to the fore.


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