Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, April 6, 2011

Natural Law's Modern Cousin Germain: Excursus on Right

IT IS APPARENT THAT THE CONCEPT OF RIGHTS is nothing other that the flip side of obligation or duty, although that aspect seems to have been forgotten. The "grammar of rights is a multi-faceted instrument for reporting and asserting the requirements or other implications of relationship of justice." And yet it is a sort of skewed presentation, almost argumentative or adversarial, as it presents justice "from the point of view of the person(s) who benefit(s) from" the alleged requirements of justice. NLNR, 205. This one-sided view of right is something acquired along the way of the development of Western jurisprudence, as it appears not to have been part and parcel of the original concept of right (ius). The original concept of right (ius) included both modern notions of right (as something of a benefit) as well as notions of duty (burdens or limits).* Right or ius was understood within the greater confines or boundaries of what was justice between persons. But there was a shift --sort of like the great vowel shift in English--in the use of the term right (ius) that occurred between St. Thomas and Suarez that gave the term this subjective connotation, one that it did not originally have. The term ius, naturally, is Roman in origin, and it was in its Roman sense that St. Thomas understood it. For St. Thomas Aquinas, the term right (ius) was "the just thing itself" (Ita etiam hoc nomen ius primo impositum est ad significandum ipsam rem iustam.** Thus, St. Thomas's central case of rights (ius) he understood to be the just acts, objects, and states of affairs between men. The principal notion of rights is therefore intricately tied to a just state of affairs, and right (ius) may mean "the fair," "the what's fair," or even that which is "aright." "[I]f one could use the adverb 'aright' as a noun, one could say that [St. Thomas's] primary account is of 'arights' (rather than of rights)." NLNR, 206. Secondarily, St. Thomas also defines right (ius) as:
  • the art by which one knows or determines what is just (artem qua cognoscitur quid sit iustum)

  • the place in which what is just is awarded (locum in quo ius redditur)

  • the award (even if unjust) of the judge, whose role it is to do "justice" (ad cuius officium pertinet iustitiam facere, licet etiam id quod decernit sit iniquum)**
The notion of ius principally as a state of affairs that is just is significantly modified by the time one gets to Francisco Suarez. "If you like, it is Aquinas's primary meaning of 'jus', but transformed by relating it exclusively to the beneficiary of the just relationship, above all to his doings and havings." NLNR, 207. Thus, in his De Legibus (written ca. 1610), Suarez's notion of ius or right has a much more modern ring to it. Suarez defines right (ius) as "a kind of moral power [facultas] which every man has, either over his own property or with respect to that which is due to him."*** "Somewhere between the two men [Aquinas and Suarez] we have crossed the watershed." NLNR, 207. To study the evolution of the term ius between St. Thomas and Suarez would itself be an interesting venture, but Finnis does not explain it.****

We Need Janus-Faced Rights Rights Ought to Look Backward to Duty

The watershed has been crossed by the time Hugo Grotius comes on the scene. Although Grotius maintains the original notion of right (ius), he clearly has adopted as another of the meanings of right (ius) the personalist, subjective notion of right that was seen in Suarez. Grotius defines right (ius) as "a moral quality of the person enabling [competens] him to have or to do something justly," a "moral quality" he describes as a faculty if it is perfect, or an aptitude if it is imperfect.† Grotius elaborates that a faculty is what was referred to as one's suum, one's own, and so included notions of power (over onself, in which case it was called a liberty (libertas), or over others, in which case it was a power (potestas)), dominion or ownership (dominium), and credit or debt (debitum). What is clear, in any event, is that "Grotius is still on the same side of the watershed as Suarez: jus is essentially something someone has, and above all (or at least paradigmatically) a power or liberty. The notion of right (ius) continues its development until the point that it takes leave of the notion of law (moral or positive) and becomes seemingly independent from it. By the time we get to Hobbes, this notion of right is placed in opposition to law:

jus and lex, right and law . . . ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW determineth and bindeth to one of them: so that law, and right differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.

Leviathan, ch. xiv (quoted in NLNR, 208). Right, then, becomes as it were an enemy to Law. Now a tension between Law (which aims at the common good) and Right (which, as defined post-Suarez as a personal faculty) might not be a bad thing. There is always a tension between the rights of the community and the rights of the individual which ought to be balanced. The problem, however, is that the notion of rights was torn out of any mooring in any norm. At least in Hobbes, it is clear that his notion of rights was shed of "virtually all its normative significance." NLNR, 208. So much so that, in state of nature, rights become a virtual free for all, to the point where one might say that one has rights to do anything with oneself and with regard to another so that rights are near absolute and without limit. The other side of the coin, however, is that everyone else's rights are similarly absolute, so that in point in fact, the absolute nature of everyone's rights nullify everyone else's to the point where no one has any rights. NLNR, 208. While Hobbe's extreme views may not have been adopted by the majority of jurists after him, the notion of right as liberty from law survived, and so we find right (ius) understood by, for example, Locke or Pufendorf as a liberty.†† In any event, the notion of rights prevalent today seems clearly to be one that is in opposition to law, and one that is not based upon the same moral norms or notions of the common good that one finds in law. Rights are no longer a benefit that arises from law (a chose in law), but a choice independent from and even apart from law (a liberty from law). Torn from their mooring in law, however, rights so fashioned bring in their wake significant problems. First of all, of course, they can be advocated against the common good. Secondly, they can be advocated as something more fundamental than the moral law. Thirdly, they have a significant problem justifying their moral existence, shorn as they are from any foundation in law.
There should be no question of wanting to put the clock back. The modern idiom of rights is more supple and, by being more specific in its standpoint or perspective, is capable of being used with more differentiation and precision that the pre-modern us of the 'the right' (jus). But it is salutary to bear in mind that the modern emphasis on the powers of the right-holder, and the consequent systematic bifurcation between 'right' (including 'liberty') and 'duty', is something that sophisticated lawyers were able to do without . . . . In Roman legal thought, 'ius' frequently signifies the assignment made as between parties of justice according to law; and one party's 'part' in such an assignment might be a burden, not a benefit--let alone a power or liberty of choice.
NLNR, 209. While Finnis appears to adopt, then, the modern vocabulary of rights, he tries to put brakes upon it. He seeks to re-incorporate the notion of rights into the greater construct of justice and the common good (which, of course, would link it with law, which also serves justice and the common good).

[W]hen we come to explain the requirements of justice, which we do by referring to the needs of the common good at its various levels, then we find that there is a reason for treating the concept of duty, obligation, or rquirement as having a more strategic explanatory role than the concept of rights. The concept of rights is not on that account of less importance or dignity: for the common good is precisely the good of the individuals whose benefit, from fulfilment of duty by others, is their right because required of those others in justice.
NLNR, 210.
*The use of the same word to express both right and duty is not limited to the original use of the Roman term ius, but seems to be quite common in other societies. Finnis gives the example of African tribal regimes where the same word is used for both concepts and comes from a large sense of ought. In Barotse the word swanelo and in Tswana the word tshwanelo are used to refer to what is "due," but in a manner that "looks both ways along a juridical relationship, both to what one is due to do, and to what is due to one." NLNR, 209. The notion of ius, of swanelo, of tshwanelo then is a notion that, like the Roman god Janus looked both ways. **S.T. Iª-IIae q. 57 a. 1, ad 1. ***De Legibus, I, ii.4. (. . . illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentum, vocutar ius . . . .) ****In his notes he suggests that it may have its source in a nominalistic philosophy, since it appears that Ockham may have expanded the notion of ius from its traditional meaning to the meaning of ius utendi which he defined as "a lawful power of using an external object, a power which one ought not to be deprived of against one's will except for fault or other reasonable cause; a power such that, if one is deprived of it, one can institute legal proceedings against the person so depriving one." (jus iutendi est potestas licita, utendi re extrinseca, qua quis sine culpa sua et absque causa rationabili privari non debet invitus, et si privatus fuerit, privantem poterit in judicio convenire.) This already sounds like a modern conception of right. †Ab hac iuris significatione diversa est altera, sed ab hac veniens, quae ad personam refertur; quo sensu ius est Qualitas moralis personae competens ad aliquid iuste habendum vel agendum. Personae competit hoc ius, etiam si rem interdum sequatur, ut servitutes praediorum quae iura realia dicuntur comparatione facta ad alia mere personalia: non quia non ipsa quoque personae competant, sed quia non alii competunt quam qui rem certam habeat. Qualitas autem moralis perfecta, Facultas nobis dicitur; minus perfecta, Aptitudo . . . ." IBP 1, 1, 4. ††Locke, Essays on the Law of Nature: jus enim eo positum est quod alicujus rei liberum habemus usum. "For right is predicated on this, that we have the free use of a thing."

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