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Author's Rejoinder

Published online by Cambridge University Press:  05 August 2009

Brian Tierney
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Extract

I find myself in a difficult situation, beleaguered on all sides. According to Finnis, Aquinas derived a doctrine of natural rights from his teaching on natural law. According to Kries, echoing Fr. Fortin, the two ideas, natural rights and natural law, are radically opposed to one another. This leaves me with a hope that some readers, faced by these extremely opposed assertions, may find a note of sweet reasonableness, a sort of golden mean, in my own position, namely that Aquinas did not himself articulate a doctrine of natural rights, but that this doctrine was not inconsistent with his teaching on natural law. The two doctrines could coexist, as they did in some later neoscholastic writings.

Let us consider first the criticisms of Finnis. My own position was set out succinctly in a previous work. “When Aquinas was writing unreflectively and following the common practice of his age, he did use the word ius in a subjective sense in phrases like ius dominii. … Yet it remains true that he developed no explicit doctrine of subjective rights or natural rights.” This still seems to me a correct judgment. Moreover it corresponds quite closely to Finnis's reading of Aquinas in his earlier book.

Type
Research Article
Information
The Review of Politics , Volume 64 , Issue 3 , Summer 2002 , pp. 416 - 420
Copyright
Copyright © University of Notre Dame 2002

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References

1. Idea of Natural Rights, p.23Google Scholar. Aquinas's usages of ius in a subjective sense indicate that in thirteenth-century thought (pace Fr. Fortin) there was no necessary conflict between a teleological view of human nature and an acceptance of subjective rights.

2. Natural Law and Natural Rights, p.207Google Scholar. Finnis indicates in his current book that he has changed his mind about natural rights in Aquinas.

3. “Bentham on Legal Rights,” in Oxford Essays in Jurisprudence (Second Series), ed. Simson, A.W.B.(Oxfoid: Clarendon Press, 1973), pp. 171–201Google Scholar.In this paper Hart acknowledged that benefit rights exist as well as choice rights and that some critics would base rights on human needs. He treated this latter idea as anextralegal concept, but this does not seem to be entirely true. The canonists of the twelfth and thirteenth centuries developed the idea of a need based right and it had a continuous history thereafter.

4. He wrote, for instance, that his sovereign was obliged by natural law. (Leviathan, ed. Tuck, , chap.30, p. 231Google Scholar.)

5. Modernity is a slippery concept. David Levine's recent book, At the Dawn of Modernity places the “dawn” around 1000 A.D. Another recent woik, Empire, by Hardt and Negri found the beginning of modernity around 1300, rather improbably in the work of Duns Scotus. On the other hand, a recent article in the Journal of Human Evolution explained that modernity really began 70,000 years ago instead of only 40,000 years ago as had been generally supposed.

6. Collected Essays, 3:24Google Scholar. This is arguable of course. I cannot speak for all my generation but in the various troubles of the twentieth century many of us were willing to risk our lives to defend the free societies that some modern intellectuals disdain. And many did die.

7. Ibid., p. 21. See also 2: 250, 3: 204. For my discussion see Idea of Natural Rights, pp. 78–89Google Scholar. I emphasized that Pufendorf, writing after Hobbes, almost precisely restated the thirteenth-century argument of Henry of Ghent. In this case there was no intellectual gulf between the thirteenth-century and the seventeenth-century positions.

8. The importance of these clauses to the drafters of the Declaration is evident in the recent study of Glendon, Mary Ann, A World Made New (New York: Random House, 2001)Google Scholar.