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From Natural Law to Human Rights: Or, Why Rights Talk Matters

Published online by Cambridge University Press:  25 September 2015

Jean Porter
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Extract

Near the beginning of The Idea of Human Rights, Michael Perry states that “One of my principal goals … is to clarify and address the unusually murky subject of ‘moral relativism’—and to do so from the perspective of what can properly be called ‘natural law.”” This he defines, following D.J. O'Connor, as a view according to which “basic principles of morals and legislation are, in some sense or other, objective, accessible to reason and based on human nature.” Subsequently, he explains that the relation between belief in natural law and in human rights is one of presupposition; that is to say, a doctrine of natural rights presupposes the moral realism which in his view is the central core of natural law theories.

As his discussion makes clear, Perry's claim that human rights presuppose a natural law should be understood as a theoretical claim. At the same time, it raises interesting historical issues. That is, when we examine classical accounts of the natural law, are these explicitly linked with doctrines of natural or human rights, or something recognizably similar? (Throughout this paper, I treat the terms “human” and “natural” rights as synonyms.) And more generally, what can we learn from the ways in which our forbears drew connections, or failed to do so, between a natural law and human rights?

Type
Perry Symposium
Information
Journal of Law and Religion , Volume 14 , Issue 1 , 1999 , pp. 77 - 96
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1999

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References

1. Perry, Michael J., The Idea of Human Rights: Four Inquiries 6 (Oxford U Press, 1998)Google Scholar.

2. Id.

3. Id at 57-86; the relation between theories of the natural law and human rights is described as one of presupposition at 68.

4. For my information on Michel Villey, and the earlier debate more generally, I am dependent on Tiemey, Brian, The Idea ofNatural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625 13–42 (Scholars Press, 1997)Google Scholar.

5. For MacIntyre's comments on this issue, see After Virtue 68–70 (U of Notre Dame Press, 2d ed, 1984)Google Scholar.

6. See Tuck, Richard, Natural Rights Theories: Their Origin and Development 7–31 (Cambridge U Press, 1979)CrossRefGoogle Scholar; Brett, Annabel S., Liberty, Right and Nature: Individual Rights in Later Scholastic Thought 49–87 (Cambridge U Press, 1997)Google Scholar.

7. I am persuaded by Richard Horsley's argument that the tradition of natural law thought takes shape sometime in the century before the beginning of the Common Era, and draws on both Stoic and neo-Platonic elements; see Horsley, Richard A., The Law of Nature in Philo and Cicero, 71 Harv Theo Rev 35–59 (1978)CrossRefGoogle Scholar.

8. For Jacques Maritain's position, see, for example, Man and the State 76–107 (U of Chi Press, 1951)Google Scholar; Finnis', John basic theory of natural rights is set forth in Natural Law and Natural Rights 209 (Clarendon Press, 1980)Google Scholar. Both Maritain and Finnis are more interested in developing an account of natural rights, than a reading of Aquinas, but both take their theory to be a development of his views; see Man and the State at 84-85, and Natural Law and Natural Rights at 42-48. Tierney's arguments will be discussed in more detail below.

9. MacIntyre, , After Virtue at 69 (cited in note 5)Google Scholar.

10. Tierney, , The Idea of Natural Rights at 44 (cited in note 4)Google Scholar; for his subsequent discussion of the uses of the term jus, see 54-69. This discussion, in turn, occurs in the context of a more far-reaching investigation of the linguistic and conceptual origins of the idea of natural rights from 1150 to 1250; see id at 43-77.

11. Tierney, , The Idea of Natural Rights at 54 (cited in note 4)Google Scholar.

12. Maritian does not say explicitly that rights claims can be translated without remainder into claims about mutual obligations, but his discussion seems to imply this; see in particular Man and the State at 97-107 (cited in note 8). Finnis does say this explicitly in Natural Law and Natural Rights at 209-10 (cited in note 8); I first noticed this reference through its citation by Perry in The Idea of Human Rights at 56 (cited in note 1).

13. Id. For Finnis' expression of the same view, see Natural Law and Natural Rights at 209-10 (cited in note 8).

14. Tuck, , Natural Rights Theories at 6 (cited in note 6)Google Scholar.

15. The phrase occurs in his essay on the French Declaration of Rights of 1791, Anarchical Fallacies, reprinted in abridged form in Melden, A.I., ed, Human Rights 28–60, 30 (Wadsworth Pub, 1970)Google Scholar. In fact, Bentham offers a model for reducing rights claims to a more general account of entitlements and obligations; see An Introduction to the Principles of Morals and Legislation 224–25 (first published in 1789; Hafner, 1948, reprint of final 1823 ed)Google Scholar.

16. I am dependent on Tuck's account of modern natural rights theories here, although the summary is my own; see generally Natural Rights Theories.

17. Tierney, , The Idea of Natural Rights at 70–71 (cited in note 4)Google Scholar.

18. As do both Maritain and Finnis; see note 8.

19. Brett offers a generally insightful discussion of Aquinas' concept of objective right, and I agree with her conclusion that Aquinas has a notion of objective, but not of subjective right; see Brett, , Liberty, Right and Nature at 88–97 (cited in note 6)Google Scholar. This is likewise the view of both Tuck and Tierney; see Natural Rights Theories at 19-20 (cited in note 6), and The Idea of Natural Rights at 45 (cited in note 4), respectively.

20. Tuck, , Natural Rights Theories at 19–20 (cited in note 6)Google Scholar.

21. Id at 7 (emphasis in the original); note, however, that Tuck here speaks of active rights, rather than subjective rights.

22. Tierney, , The Idea of Natural Rights at 69–76 (cited in note 4)Google Scholar.

23. Id at 73; I am quoting from Tiemey and the translation is his. He offers here several other examples of similar expressions from the same period.

24. Id at 74.

25. As Tierney shows in some detail; see id at 43-69.

26. Tuck, , Natural Rights Theories at 3 (cited in note 6)Google Scholar.

27. Id at 50-57, 119-42.

28. Tierney, , The Idea of Natural Rights at 77 (cited in note 4)Google Scholar.

29. Id at 94.

30. Id.

31. Id at 95.

32. Id.

33. Id at 95-106; unless I have overlooked it, Perry never does return to the specific issue of torture.

34. I came to realize the significance of this aspect of natural rights theories through reading Shklar, Judith N., The Faces of Injustice (Yale U Press, 1990)Google Scholar, even though natural rights theories as such are not her main focus of concern there.

35. A portion of this paper is taken from my Natural and Divine Law: Retrieving the Tradition for Christian Ethics (Novalis: Ottawa & Eerdmans, 1999)Google Scholar and the relevant section is reprinted with the kind permission of Novalis Press. In addition, earlier drafts of this paper were read during a series of lectures sponsored by the Australian Theological Forum, April 17-18, 1998, and at a faculty seminar sponsored by the Erasmus Institute, the U of Notre Dame, December 8, 1998. I benefited greatly from the many comments offered at these lectures.