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JUSTICE, EQUALITY, AND NATURAL RIGHTS CLAIMS: A RECONSIDERATION OF AQUINAS'S CONCEPTION OF RIGHT

Published online by Cambridge University Press:  03 November 2015

Jean Porter
Jean Porter*
Affiliation:
John A. O'Brien Professor of Theology, University of Notre Dame
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Abstract

According to a widely held view, Aquinas does not have a notion of subjective natural rights, understood as moral powers inhering in individuals. This article argues that this way of reading Aquinas is wrong, or at best, seriously misleading. Aquinas does identify the right, the object of justice, with the relation established between parties to an equitable exchange or interaction, and in this sense he identifies right with an objective state of affairs. But this line of analysis does not commit him to any particular construal of what constitutes a just relation. In particular, it leaves open the possibility that in some situations, the right, understood as an objectively equitable relation, presupposes that someone's claim of a right, is duly acknowledged. Moreover, in many contexts Aquinas says that individuals can claim certain liberties and immunities on the basis of some natural right, in terms that make it clear that these claims lie within the discretion of the individual. His overall conception of natural law and natural right implies that individuals can legitimately make certain claims by right, claims that emerge within some contexts and not others. He does not have a theory of rights, but neither do the scholastic jurists of the time, and his appeals to what someone can claim by right are reminiscent of their views. If they can be said to have a notion of subjective natural rights, the same can be said of Aquinas himself.

Keywords

rightsjusticeequality
Type
SYMPOSIUM: CHRISTIANITY AND HUMAN RIGHTS
Information
Journal of Law and Religion , Volume 30 , Issue 3 , October 2015 , pp. 446 - 460
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2015 

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References

1 Aquinas, Summa Theologiae, II-II 58.1. All references to Aquinas are taken from the Leonine edition of the Summa Theologiae, vols. 4–12 of the Opera Omnia iussa edita Leonis XIII (Rome: Ex Typographia Polyglotta S.C. de Propaganda Fide, 1888–1906).

2 See Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625 (Atlanta: Scholars Press, 1997), 13–42.

3 Ibid., 43–77; Reid, Charles J. Jr., “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” Boston College Law Review 33, no. 37 (1991): 37–92Google Scholar; see also C. J. Reid, Power over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law (Grand Rapids, MI: Wm. B. Eerdmans, 2004).

4 Tierney, The Idea of Natural Rights, 45 (emphasis added).

5 Ibid., 43–56; Reid, “Canonistic Contribution,” 59–65. While no summary could do justice to the complexities of contemporary theories of rights, Tierney and Reid offer insightful analyses of what is at stake in the defense of subjective rights, which would be generally accepted as such. For an independent summary of recent theories, covering many of the same authors and issues as Tierney and Reid, see Kieran Cronin, Rights and Christian Ethics (Cambridge: Cambridge University Press, 1992), 26–56.

6 Tierney, The Idea of Natural Rights, 54–58. For more general accounts of the expansion and development of legal activities and fora in this period, see R. W. Southern, Scholastic Humanism and the Unification of Europe, vol. 1, Foundations (London: Blackwell, 1995), 134–62, 237–82; James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago: University of Chicago Press, 2008), 75–125.

7 Tierney, The Idea of Natural Rights, 65–66, see more generally 58–69.

8 Ibid., 74.

9 Ibid., 65–66.

10 Aquinas's familiarity with judicial texts and procedures is most evident in his remarks on legal judgment as a paradigmatic act of justice, Summa Theologiae, II-II 60, and his extended analysis of the normative significance of legal procedures, ibid., II-II 67–71, although he draws on classical and scholastic jurists throughout the Summa Theologiae. I am not claiming that he has a detailed knowledge of legal procedures—after all, he is a theologian, not a lawyer—but he clearly has a good, informed and appreciative layman's sense of the law of his time.

11 Ibid., II-II 58.1. Some have argued that jus as understood in this formula refers to the complex of rights and duties attached to some particular object, for example, the advantages and liabilities attached to owning a particular tract of land. However, as Reid argues, by the thirteenth century “jus was transformed unequivocally into an individual power or claim; it signified an individual's legal advantage, not the advantages and disadvantages inhering in a tangible object.” Reid, “The Canonistic Contribution to the Western Rights Tradition,” 55.

12 Aquinas, Summa Theologiae, II-II 57.2. Aristotle, Nicomachean Ethics 5.7, 11434b 18–24.

13 Aquinas, Summa Theologiae, II-II 60.1. At this point, Aquinas takes his starting point from Aristotle, who similarly takes the activities of a judge as representative of a certain kind of justice. See Nicomachean Ethics 5.4, 1132a 10–30. A comparison will indicate that Aquinas develops this theme at greater length than Aristotle does, and he focuses directly on judicial procedures in a way that Aristotle does not.

14 Aquinas, Summa Theologiae, II-II 66.7.

15 Ibid., II-II 66.7 ad 2.

16 Ibid., II-II 66.7 ad 3.

17 Ibid., II-II 10.12.

18 Ibid., II-II 64.3 ad 2. Aquinas's brief remarks here should be seen in the context of his extended discussion of what we would describe as norms of due process and proper legality, which he regards as obligations of justice grounded in considerations of fairness, equity, and natural equality. See Ibid., II-II 67–71.

19 Ibid., II-II 64.7.

20 Ibid., II-II 104.1 ad 1.

21 Ibid., II-II 104.5.

22 Ibid.

23 Ibid., II-II 104.5.

24 Reid, “The Canonistic Contribution to the Western Rights Tradition,” 72–92; Reid, Power over the Body, Equality in the Family, 25–68.

25 See, e.g., Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000), 120–83.

26 Aquinas, Summa Theologiae, II-II 57.1.

27 See Aristotle, Nicomachean Ethics 5.3, 1131a 10-1131b 24, for a summary of the distinct kinds of equality involved in exchanges and distributions. Aristotle's own view is notoriously complex and difficult, and I have not attempted to address the question of whether, and to what extent, Aquinas interprets Aristotle's overall views correctly. For further particulars, see Jeffrey Hause, “Aquinas on Aristotelian Justice: Defender, Destroyer, Subverter, or Surveyor?” in Aquinas and the Nicomachean Ethics, eds. Tobias Hoffmann, Jörn Müller, and Matthias Perkams (Cambridge: Cambridge University Press, 2013), 146–64.

28 Aquinas, Summa Theologiae, I 93.1 ad 4.

29 Ibid., I-II introduction.

30 Ibid., I 109.2 ad 3.

31 Ibid., II-II 80.

32 Ibid., II-II 64 introduction.

33 See Aristotle, Nicomachean Ethics, 5.2, 1130b 30-1131a 9, 5.4, 1132a 1–19.

34 Aquinas, Summa Theologiae, II-II 72.1.

35 Ibid., II-II 64–71.

36 Janet Coleman offers a good summary of the complex ideals of freedom and servitude, seen in relation to ownership and poverty, in “Property and Poverty,” in The Cambridge History of Medieval Political Thought, c. 350–c. 1450, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988), 607–48.

37 For a fuller account of scholastic views on equality, free status, and possessions, together with textual citations, see Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Grand Rapids, MI: Wm. B. Eerdmans, 1999), 245–93.

38 Aquinas, Summa Theologiae, II-II 66.7.

39 Ibid., I 96.4.

40 Ibid., I-II 1.1 ad 2.

41 Ibid., I-II 91.2.

42 At this point, I am summarizing a line of interpretation I developed in Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, MI: Wm. B. Eerdmans, 2010), 70–82.