1 In a recent essay Cary Nederman refers to a “rich array—indeed an embarrassment—of medieval sources which must be considered” (“Property and Protest: Political Theory and Subjective Rights in Fourteenth-Century England,” Review of Politics 58 [1996]: 323–44).CrossRefGoogle Scholar

2 A fundamental text in this new approach to the history of political ideas is Skinner's, QuentinThe Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978)Google Scholar. Also see Tuck, Richard, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979)CrossRefGoogle Scholar; Tierney, Brian, Religion, Law, and the Growth of Constitutional Thought 1150–1650 (Cambridge: Cambridge University Press, 1982)CrossRefGoogle Scholar; and more recently, Nederman, Cary J. and Laursen, John Christian, eds., Difference and Dissent: Theories of Toleration in Medieval and Early Modern Europe (Lanham, MD: Rowman and Littlefield, 1996).Google Scholar

3 For instance see Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1950)Google Scholar; Macpherson, C.B., The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962)Google Scholar; and more recently Saxonhouse, Arlene, Women in the History of Political Thought: Ancient Greece to Machiavelli (New York: Praeger, 1985)Google Scholar and Donnelly, Jack, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989).Google Scholar

4 The broader philosophical and historical question of whether traditional natural law philosophy can be understood to be consistent with a doctrine of individual natural rights is also a matter of controversy. For a summary of recent works see Mclnerny, Ralph, “Natural Law and Human Rights,” American Journal of Jurisprudence 36 (1991): 1–14CrossRefGoogle Scholar. This article contains a useful survey of the conjunctions between scholarship on the history of political ideas and contemporary natural law theories.

5 See Villey, Michel, “Le genése du droit subjetif chez Guillaume d'Occam,” Archives de philosophic du droit 9 (1964): 97–127.Google Scholar

6 Villey's argument is summarized in Le droit et les droits de l'homme, (Paris: Presses Universitaires de France, 1983)Google Scholar. A more rigid version of this argument is proposed by contemporary human rights theorist Donnelly, Jack “Natural Law and Right in Aquinas Political Thought,” Western Political Quarterly (1980): 520–535Google Scholar. Donnelly–s work appears to parallel Villey, who was an advocate of objective natural right against modern and contemporary doctrines of subjective rights, while assuming the superiority of contemporary subjective rights doctrines.

7 For a concise summary of Villey's views in English, see Mclnerny, , “Natural Law and Human Rights,” pp. 1–4.Google Scholar

8 This argument is made in Tierney's, “Marsilius on Rights,” Journal of the History of Ideas 52 (1991): 3–17CrossRefGoogle Scholar, and “Aristotle and the Indians—Again,” Cristianesimo nella storia, 12 (1991): 295–322Google Scholar. Also see his “Villey, Ockham and the Origin of Individual Rights,” in The Weightier Matters of the Law: Essays on Law and Religion, ed. Witte, John and Alexander, Frank S. (Atlanta, 1988) 1–31Google Scholar, and “Origins of Natural Rights Language: Texts and Contexts 1150–1250,” History of Political Thought 10 (1989): 615–46Google Scholar. This view is supported by Pennigton, Kenneth in The Prince and the Law, 1200–1600, (Berkeley: University of California Press, 1993), pp. 272–73Google Scholar. Tierney gives a detailed account of his views in his recent book, The Idea of Natural Rights (Atlanta: Scholar's Press, 1997), pp. 255–315Google Scholar. Many of the essays cited in this essay are reprinted in the earlier chapters of the book.

9 Tierney, , “Origins of Natural Rights Language,” pp. 617–18.Google Scholar

10 I have traced what I take to be the genuinely Thomist principles behind the arguments of Vitoria and Las Casas. See, “Spanish Thomism and the American Indians: Vitoria and Las Casas on the Toleration of Cultural Difference,” in Difference and Dissent: Theories of Tolerance in Medieval and Early Modern Europe, ed. Nederman, Cary J. and Laursen, John C. (New York: Rowman and Littlefield, 1996), pp. 99–118.Google Scholar

11 See Tuck, , Natural Rights Theories, pp. 18–20Google Scholar, commenting on Aquinas, Summa Theologiae, iia.-iiae. 66, 1 and ia.-iiae. 94, 5.

12 Tuck, like many contemporary scholars, writes under the mistaken assumption that Aquinas accepted some version of Aristotle's view that there are “natural slaves,” p. 20. Amore thorough treatment of Aquinas's commitment to moral equality can be found in Porter, Jean, The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics (Louisville: Westminster/John Knox Press, 1990), pp. 134–41.Google Scholar

13 ibid. pp. 20–24, also see Coleman, Janet, “Property and Poverty” in The Cambridge History of Medieval Political Thought 350–1450, ed. Burns, J. H. (Cambridge: Cambridge University Press, 1988), pp. 607–48CrossRefGoogle Scholar. Coleman gives a much broader review of the relevant texts from Aquinas.

14 Tierney, B., “Origins of Natural Rights Language,” p. 627Google Scholar. An excellent concise treatment of the areas of human liberty as understood in the Later Middle Ages can be found in Black, Antony, Political Thought in Europe 1250–1450 (Cambridge: Cambridge University Press, 1992), pp. 28–33.CrossRefGoogle Scholar

15 This concern is suggested by Nederman's approach in “Property and Protest,” pp. 326–29. For another treatment of philosophical defenses for modem political values in the context of an objective rights doctrine see Lahey, Stephen, “Wyclif on Rights,” Journal of the History of Ideas (1997): 1–20Google Scholar. For Aquinas's treatment of objective natural right, see Summa Theologiae, iia.-iiae. 57. In this question, Aquinas argues that the primary definition of right (jus) is that right is the object of justice (Justitia).

It should also be noted that Brian Tierney examines William of Ockham's subjective rights language in a similar manner in The Idea of Natural Rights, pp. 170–94.

16 iia.-iiae. 104, 5. All translation from the Summa Theologiae are taken from Aquinas, St. Thomas, Summa Theologica, in 5 Volumes, translated by the Fathers of the English Province, Dominican (New York, 1948 reprint)Google Scholar. In addition, translations of his IV Sent., dist. 27, are based upon the text found in Volume 5 of the translation of the Summa Theologiae, Supplementum, 52. 1–4.

17 A.S. McGrade has suggested that this and other passages demonstrate that “Thomas' account of the objective order of justice yields a rather short list of universal human rights.” See McGrade, , “Rights, Natural Rights, and the Philosophy of Law,” in The Cambridge History of Later Medieval Philosophy, ed. Kretzmann, N., Kenny, A. and Pinborg, J. (Cambridge: Cambridge University Press, 1982), pp. 739–40.Google Scholar

18 “Duobus potest contingere quod subditus suo superiori non teneatur in omnibus obedire. Uno modo propter praeceptum majoris potestatis.… Alio non tenetur inferiore suo superiori obedire, si ei aliquid praecipiat in quo ei non subdatur. Dicit enim Seneca, Errat, si quis existimat servirutem in totum hominem descendere; pars enim melior excepta est: corpora obnoxia sunt et adscripta dominis, mens quidem est sui juris. Et ideo in his quae pertinent ad interiorem motum voluntatis, homo non tenetur homini obedire, sed solum Deo.

“Tenetur autem homo homini obedire in his quae exteris per corpus sunt agenda; in quibus secundum ea quae ad naturam corporis pertinent, homo homini obedire non tenetur, se solum Deo, quia omnes homines natura sunt pares, puta in his quae pertinent ad corporis sustentationem et prolis generationem. Unde non tenetur nec servi dominis, nec filii parentibus obedire de matrimonio conrrahende vel virginitate servanda aut aliquo alio hujus modi.”

19 “Unde non tenetur nec servi dominis, nec filii parentibus obedire de matrimonio contrahendo vel virginitate servanda aut aliquo alio hujus modi.”

20 Summa Theologiae, ia-iiae. 94, 2. The reading of this passage in the present essay differs considerably from the remarks of Finnis, John in his seminal work Natural Law and Natural Right (Oxford: Oxford University Press, 1980)Google Scholar. In his commentary on Aquinas's writings, Finnis refers to this passage on natural inclinations as “irrelevant schematization,” and argues that Aquinas commits the infamous “naturalistic fallacy” (pp. 94–95)! My reading is nearer to that of Porter, Jean, The Recovery of Virtue, pp. 144–45.Google Scholar

21 ibid. ia. 97 and 98.

22 ibid. 92, 1, ad2 and 96, 4. See also II Sent. 44,1,3.

23 Summa Theologiae, iia-iiae. 57, 3. In this context Aquinas employs the term jus gentium to refer to certain precepts of human or positive law that are understood to exist in any human community. This differs from the later understanding of the jus gentium as the “law of nations” or “international law” which refers to a body of legal rules regulating conduct among states, nations or governments.

24 The meaning of these claims in Roman law is a matter of scholarly controversy. One key text is from the Roman jurist Ulpian. It is found at Institutes, 1,5,1, Digests 1,4,1; and in the Canon Law at Decretum, 1,1,7, “quae es res a jure gentium originem sumpsit, uptote cum jure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitusessetincognita.” Also see Institutes, 1,2,2, where slavery is called contrary to natural law (juri naturali contrariae). In the Decretum, Gratian relied heavily on the Etymologies of St. Isidore of Seville for his various statements concerning natural law. Isidore was a favorite auctor for Aquinas in his “Treatise of Law” (Summa Theologiae, ia-iiae. 90–97), and is quoted as holding this opinion by Aquinas in the passage in which Aquinas distinguishes between jus gentium and jus naturalis (iia-iia. 57,3ad2).

25 Politics 1254a15.

26 Summa Theologiae, iia-iiae. 57, 3, ad2.

27 It is true that Aquinas allows that there would have been natural disparities among human beings, even before original sin, so that his understanding of natural equality is circumscribed. Nevertheless, he does point out that the presence of natural disparities before original sin must be understood in light of the proviso that “those outclassed in any of these respects had nothing defective or sinful about either soul or body.” See Summa Theologiae ia. 96, 3 and 109, 2, ad3. It is worth noting that Aristotle is not mentioned as an authority in these articles.

28 See Aquinas, Summa Theologiae, ia. 96, “de dominio quod homini in statu innocentiae competebat,” and ia. 97–98. Tierney points out that Henry of Ghent avoided the medieval and early modern tendency to speak of one's mastery (dominium) over oneself, which is repeatedly found in Aquinas (for example, Summa Theologiae, i. 96; iia-iiae. 64, 5, ad2; iia-iiae. 66, 1 and 2; iia-iiae. 104,5), and preferred the term proprietas. See Tierney, , “Natural Rights in the Thirteenth Century,” p. 65Google Scholar, fn. 46. The point may have been to avoid referring to the “self-mastery” of a “slave,” as Scotus, Saint John Dun does in Ordimtio IVGoogle Scholar, d. 36, q.l, a.2. The multiplicity of historical uses of the latin term dominium (usually translated “lordship” or “ownership”) is the cause of much confusion about medieval political thought.

29 For an outstanding summary of Aquinas views on marriage see Fr. Moran, Sabino Alonso, O.P., “Introduccion al Tratado del Matrimonio,” Summa Teologica, Tomo XV (Madrid, 1956), pp.154–71Google Scholar. Fr. Moran (pp. 154–55) shows that Aquinas's understanding of marriage derives from his consideration of three definitions: one taken from Justinian's Institutes (1,9), another from Peter Lombard's IV Sententia (d. 27), and another from Hugh of St. Victor's De Sacramentis (l.IIp. 11, 4). Aquinas used these definitions to analyze three integral elements of marriage: (1) the efficient cause, the consent of the contracting parties (Hugh of St. Victor); (2) the essence, the union of the two parties (Peter Lombard); (3) the effect, the common life in domestic society (Aquinas, , Suppl. 44, 1–3Google Scholar, in IV Sent., d.27).

On the contrary, In Christ Jesus … there is neither slave nor free (Gal. 3, 28): Therefore both freemen and slaves enjoy the same liberty to marry in the faith of Christ Jesus.

Further, slavery is of the positive law; whereas marriage is of the natural and Divine law. Since then the positive law is not prejudicial to the natural or the Divine law, it would seem that a slave may marry without his master's consent.

I answer that, as stated above (A. 1, ad 3), the positive law arises out of the natural law, and consequently slavery, which is of positive law,

30 I.T. Eschmann, O.P., followed Grabmann in believing that Reginald of Piperno, Aquinas's secretary, was the author. See “A Catalogue of St. Thomas's Works” in Gilson, E., The Christian Philosophy of Saint Thomas Aquinas (New York: Random House, 1956), p. 388.Google Scholar

31 See In IV Sent, d.36,1,1, based on this same canon, “De coniugio servorum,” chap. 2; reproduced in Summa Theologiae, Suppl. 52, 1, ad1.

32 Decretales Gregorii IX, 4,9,2, “De coniugio servorum.”

33 Aquinas, , In IV Sent. 36, 1, 2Google Scholar; Suppl. 52, 2; based on Decretalis Gregorii IX, 4, 9, 1.

34 See In IV Sent. 36, 1,2, which is directly reproduced in Suppl. 52,2. The passage from Galatians is also quoted by the canonist in Decretales Gregorii IX, 4,9,1.

“Sed contra: 1. Gal. 3,28: “In Christo Jesu non est servus neque liber,” Ergo matrimonium conrrahendum in fide Christo Jesu eadem est liberis et servis.

2. Praeterea, servitus est de jure positivo (a.l, ad3):sed matrimonium de jure naturali et divino, videtur quod servus absque domini consensu matrimonium contrahere possit.

Respondeo, dicendum, quod jus posirivum ut dictum est, progreditur a jure naturali. Et ideo servitus quae est de jure positivo, non potest praejudicare his quae sunt de jure naturali. Sicut autem appetitus naturae est ad conservationem individui, ita est ad consevationem speciei per generationem. Unde, sicut servus non subditur domino quin libere possit comedere et dormire, et alia hujusmodi facere quae ad necessitatem corporus pertinent, sine quibus narura conservari non potest; ita non subditur ei quantum ad hoc quod possit libere matrimonium contrahere, eitam domino nesciente aut contradicente.”

35 These choices are suggested by the above passage from iia-iiae. 104,5.

36 Note that Aquinas implicitly forbids the master from forcing women held as slaves to reproduce in order to increase the master's labor force. In fact, Aquinas's discussions of slavery seems to render the existence of slavery, as it is commonly understood, impossible. Scholars often make this point by noting that Aquinas had in mind feudal serfdom, or some other lesser form of servitude. Yet Aquinas would also have been aware of Christian captives who had been enslaved by Islamic lords during the crusades and wars of conquest over Christian populations.

37 For example, see Sigmund's, Paul treatment of Aquinas's view of slavery (p. 222) in his essay on “Law and Politics,” in The Cambridge Companion to Aquinas, ed. Kretzman, Norman and Stump, Eleonore (Cambridge: Cambridge University Press, 1993), pp. 217–31CrossRefGoogle Scholar. Sigmund views Aquinas as attempting to reconcile Aristotle and Patristic sources. He completely ignores Aquinas's uses of the civil and canon law sources, of St. Paul and of Cicero in his writings on slavery.

38 In IV Sent. 36, 1, ad 2 and 3; also see Suppl. 52,1, ad 2 and 3. The passage quoted is: Regula Pastoralis, II,6. Gregory, Here follows Saint Augustine's famous statement in De civitate Dei (XIX, 15)Google Scholar, “contra naturam est hominem homini velle dominari.” Aquinas may have chosen to rely on Gregory because Gregory had written after the compilation of Justinian's Code. On the political works of Gregory the Great see Markus, R.A., “The Latin fathers,” in The Cambridge History of Medieval Political Thought, ed. Burns, J.H. (Cambridge, 1988), pp.116–22.Google Scholar

39 “sed ex quo aliquis peccat, natura etiam inclinat ut ex peccato poenam reportet; et sic servitus in poenam peccati introducta est.”

It should be noted that this passage is preceded by a strained attempt to draw a parallel between the incidence of female births and the existence of slavery, which is misogynist in effect if not in intent. This impression is partially alleviated by Aquinas's argument that women are made according to the image and likeness of God (Summa Theologiae ia. 93, 4, ad.1), and his insistence that wife and husband stand on a equal basis as it concerns their obligation to perform the marital act (for example, Suppl. 52, 3, ad.2).

40 See In IV Sent. 27, 1, ad 1., quoting Ulpian's opinion from the Digests (1,1,1), that “jus naturale est quod natura omnia animalia docuit.”

41 Digests, 1,1,4, “Manumissionis.” See note 26 above.

42 De inventiones, ii, 53.

43 In IV Sent. 36,1, ad. 1; Suppl. 52,1, ad 1.

44 Summa Theologiae, ia. 96,4 &97,2. To be more precise, Aquinas first argues that any person would find it painful to be a slave who is used as an instrument of another's good, because by nature human beings each value their own good (ia.96,4); then he subsequently argues that the type of suffering that is experienced by a creature when it is driven from a natural disposition would not have been present in human nature in the state of innocence (ia. 97, 2).

45 In IV Sent., 36,3; Suppl. 52, 3; “Utrum servitus matrimonio possit supervenire (Whether slavery can supervene to marriage).”

46 “Sed contra, quilibet potest dare alteri quod suum est. sed vir est sui juris, cum sit liber, ergo potest jus suum dare alieri.”

47 Again, one should note that Aquinas holds that a wife may not surrender herself into slavery without the consent of her husband. However, this was not because women had no natural liberty, for Aquinas insists that women do have equality of self-mastery in those things which pertain to the preservation of nature (In IV Sent. 36, 3, ad.2; Suppl. 52, 3, ad. 2). Yet, once married, Aquinas argued that the wife was in a position of subjection to her husband in the order of domestic society, and that the husband was the head of household management.

48 “Inaestimabile libertatis bonum amittens,” In IV Sent. 36, 3, ad.1; Suppl. 52,3, ad. 1.

49 In IV Sent. 36, 2ad4, Suppl. 52, 2ad4.

50 The key passages are Summa Theologiae ia. 96,4, II Sent. 44,1,3. Also see De regimine principium I,1Google Scholar; Summa Theologiae ia. 81,3 ad2, ia.-iiae. 95–95, ia.-iae. 105, 1; iia.-iiae. 57, 3&4. For a useful application of this Thomist view of political society to contemporary American government see George, Robert, Making Men Moral: Civil Liberties and Public Morality (Oxford: Oxford University Press, 1993)Google Scholar. Also see Nederman's, Cary writings on “communal functionalism,” especially “Freedom, Community and Function: Communitarian Lessons of Medieval Political Theory,” American Political Science Review 86 (1992): 977–86.CrossRefGoogle Scholar

51 Summa Theologiae ia.-iiae. 95,2.

52 ibid., 95,1–4.

53 ibid., ia.-iiae. 96,5.

54 I.e. The commonwealth serves supernatural as well as natural purposes. It should be remembered, however, that Aquinas held that obedience to all existing civil authorities was a moral duty, even if the authority is exercised by an unbeliever. See Summa Theologiae iia.-iiae. 10,10.

55 Summa Theologiae iia.-iiae. 10,12.

56 See Vitoria, , Political Writings, ed, Pagden, A. and trans. J. Lawrance, (Cambridge: Cambridge University Press, 1991)Google Scholar; De Indis, preface, p. 233; and Lectio reportata in Summa Theologiae iia-iiae. 10,8, pp. 341–51.

57 See Tierney, B., “Marsilius on Rights,” p. 5Google Scholar; and “Aristotle and the Indians—Again,” p. 300.

58 Kenneth Pennington touches on a similar problem in his concluding chapter of The Prince and the Law, in which he traces the development of the notion of the “untrammeled sovereignty” of the prince in the sixteenth century (pp. 269–90). Contemporary “rights-talk” depends upon the notion of “untrammeled individual autonomy.” It misunderstands human liberty because of its reliance on non-cognitive ethics, reducing liberty as it does to an unlimited freedom to act as one pleases, i.e. what John Locke called “license” (Second Treatise, sec. 6). Aquinas' intellectual determinism, and Locke's invocation of “Reason,” could serve to remind us that genuine human liberty requires obedience to a reasoned judgment of the conscience, not an undetermined will to power.