1. Peters, Edward. “Truth and Fiction in the Negotiation of Human Rights,” Human Rights Review 1 (1999): 113–19 at 114.CrossRefGoogle Scholar

2. Two recent works that discuss the whole period from the twelfth century to the seventeenth are Brett, Annabel, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997)Google Scholar; Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997)Google Scholar.

3. “Symposium. Natural Law v. Natural Rights. What Are They? How do They Differ?” Harvard Journal of Law and Public Policy 20 (1997): 627–731Google Scholar. The views in the text above were expressed by Krniec, Douglas W. and Barnett, Randy E.. See pp. 628, 656.Google Scholar

4. Berns, Walter, In Defense of Liberal Democracy (Chicago: Regnery Gateway, 1984), p. 8Google Scholar; Weinreb, Lloyde L., “Natural Law and Rights,” in Natural Law Theory: Contemporary Essays, ed. George, Robert R (Oxford: Clarendon Press, 1992), p. 280Google Scholar

5. Bobbio, Norberto, Thomas Hobbes and the Natural Law Tradition, trans. Gobetti, D. (Chicago:University of Chicago Press, 1993), p. 154Google Scholar; Freeden, Michael, Rights (Minneapolis: University of Minnesota Press, 1991), p. 25Google Scholar.

6. Villey, Michel, La formation de la pensée juridique moderne, 4th ed. (Paris: Editions Montchrestien, 1975), pp. 227, 365Google Scholar. For a critical discussion of Villey's work see Tierney, , Idea of Natural Rights, pp. 13–42Google Scholar.

7. Finnis, John, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), pp. 170, 176Google Scholar.

8. Villey, , La formation, pp.227–30Google Scholar. See also Villey, , “La genèse du droit subjectif chez Guillaume d' Occam,” Archives de philosophie du droit 9 (1964): 97–127 at 103–104.Google Scholar

9. Summa Theologiae, 2. 2ae. 57. 1.Google Scholar

10. Finnis, , Aquinas, p. 133Google Scholar.

11. Ibid., p. 133.

12. There are similar usages in Aquinas too when he was using the word ius unreflectively. See Finnis, , Aquinas, p. 133 n.10Google Scholar. Villey thought it important to distinguish between the use of the terms ius and lex in Aquinas's work. Finnis correctly points out that Aquinas occasionally used the terms interchangeably. The immediate point is that for Villey neither Aquinas's ius naturale nor lex naturalis implied anything like a modern doctrine of rights. In an earlier work Finnis criticized Villey's interpretation of Aquinas. In his more recent book he seems sometimes to be responding to Villey's arguments but he does not mention the French scholar by name, nor does he include any of Villey's numerous works in his bibliography.

13. Finnis, , Aquinas, p. 135Google Scholar. See Summa Theologiae, 2. 2ae. 57. 1.Google Scholar When Finnis considered Aquinas's treatment of unjust laws (p.136), he wrote in similar fashion, “[I]f a statute declares permissible something which, contrary to natural law {ius naturale}, violates someone's natural right(s), the statue is overridden by the right(s),” citing 2.2ae. 57.2. But the text of Aquinas has no reference to subjective rights. Paul Cornish has also argued that Aquinas used “a language of subjective rights.” But he only shows that Aquinas considered situations that might well have been discussed in terms of natural rights. Aquinas himself, however did not choose to argue in that way. Aquinas never used the terms ius naturale or iura natralia in a subjective sense. See Cornish, P.. “Marriage, Slavery and Natural Rights in the Political Thought of Aquinas,” Review of Politics 60 (1998): 545–61CrossRefGoogle Scholar.

14. Finnis, , Aquinas, p. 136Google Scholar referring to Summa Theologiae, 2. 2ae. 122. 6Google Scholar

15. Rousseau, Félicien. La croissance solidaire des droits de l'homme (Montreal: Desclée et cie, 1982), p. 173Google Scholar. Villey once complained about scholars who found a doctrine of subjective rights in “Roman law, medieval law, and even in…cuneiform law.” See “La genèse,” p. 102Google Scholar.

16. Robert Cover has explained how rabbinic scholars built up a complex jurisprudence without appealing to the idea of rights by emphasizing the alternative concept of mitzvah. See “Obligations: A Jewish Jurisprudence of the Social Order,” in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Minow, Martha et al. (Ann Arbor, MI: University of Michigan Press, 1992), pp. 239–48Google Scholar.

17. Anthony Lisska argued that one could derive a series of rights from Aquinas's four “inclinations”; but they would only be rights to conform to the mandates of natural law. He noted that “Aquinas had neither the term nor. the modern concept of ‘right’ in his philosophical lexicon.” See Lisska, A., Aquinas's Theory of Natural Law: An Analytical Reconstruction (Oxford: Clarendon Press, 1996), pp. 233–38, 243Google Scholar. Lisska also presents a critical discussion of Henry Veatch's derivation of rights from “obligatory duties” in Veatch, , Human Rights: Fact or Fancy? (Baton Rouge, LA: Louisiana State University Press, 1985)Google Scholar.

18. Zuckert, Michael, “Do Natural Rights Derive From Natural Law?” Harvard Journal of Law and Public Policy 3 (1997): 695–731 at 714Google Scholar.

19. Ibid., p. 716.

20. Ibid., pp. 705,716. For a similar view see Donnelly, Jack, “Natural Law and Right in Aquinas' Political Thought,” Western Political Quarterly 33 (1980): 520–35CrossRefGoogle Scholar, “Liberties and entitlements distinguish rights from law so fundamentally that we can say that law and rights point in different directions” (p. 529).Google Scholar

21. Zuckert, , “Do Natural Rights Derive From Natural Law?” p. 731Google Scholar. Zuckert was referring here to Locke as well as Aquinas.

22. Strauss, Leo, The Political Philosophy of Hobbes, trans. Sinclair, Elsa M. (Chicago: University of Chicago Press, 1952) (reprint of the 1936 edition), p. 157.Google Scholar For a few later examples see Berns, WalterLiberal Democracy, p. 9Google Scholar, “In the teachings of Hobbes and Locke, the laws of nature are merely deductions from the rights of nature”; Berns, Lawrence, “Hobbes,” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph, 3rd ed. (Chicago: University of Chicago Press, 1987), p. 401Google Scholar, “All the laws of nature…are derived from and subordinate to the right of nature”; Zuckert, Michael, “Do Natural Rights Derive From Natural Law,” p. 702Google Scholar, “Hobbes…claimed that natural right comes first and natural law derives therefrom”; Shapiro, Ian, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), p. 42Google Scholar, “To Hobbes…natural laws are derived from his account of man's natural capacities…man's natural rights.” Tuck, Richard agreed in part with Strauss in his Hobbes (Oxford: Oxford University Press, 1989), p. 102Google Scholar. “Strauss in my view correctly recognized that Hobbes subordinated natural law to natural rights.” But Tuck's own discussions of the issue are more nuanced.

23. Fortin, Ernest, Collected Essays, ed. Benstead, J. Brian (Lanham, MD: Rowman and Littlefield Publishers Inc., 1996), vol. 2Google Scholar, Classical Christianity and the Political Order, p. 249Google Scholar.

24. Hobbes, , Leviathan, ed. Tuck, Richard (Cambridge: Cambridge University Press, 1991), chap. 14, p. 91Google Scholar.

25. Ibid

26. Ibid., chap. 14, p. 92. Hobbes liked sometimes to express his novel ideas in traditional language. He went on (p. 110) to give a new idiosyncratic meaning to the old canonistic terms forum internum and forum externum. Gratian's work was still widely studied and quoted in the seventeenth century. Filmer referred to the first chapters of the Decretum in his criticism of Grotius. Patriarcha and Other Writings, ed. Sommerville, Johann P. (Cambridge: Cambridge University Press, 1991), pp. 208–209Google Scholar.

27. Ibid., chap.16, p. 111.

28. Some of Hobbes's paradoxes are discussed in Kramer, Matthew H., Hobbes and the Paradoxes of Political Origins (New York: St. Martin's Press Inc., 1997)CrossRefGoogle Scholar. Kramer's notes provide a good critical review of the more important modern interpretations of Hobbes's thought.

29. Leviathan, , chap. 14, p. 91Google Scholar.

30. Patriarcha, , p. 189Google Scholar.

31. De cive: The English Version, ed. Warrender, Howard (Oxford: Clarendon Press, 1983), p. 170Google Scholar. Of course one can reasonably argue that it is the human propensity for violent and unruly behavior that necessitates the institution of laws and coercive government. But this is an age-old platitude taught by Augustine and many others, not a breakthrough contribution of Hobbes.

32. Villey is one exception. He did mention the significance of permissive law, especially in his later works. See Le droit et les droits de l'homme (Paris: Presses universitaires de France, 1983), p. 123Google Scholar. But Villey did not investigate the origin and development of the idea.

33. The account of permissive law in the text above is based in part on my articles, “Kant on Property: The Problem of Permissive Law” and “Permissive Natural Law and Property: Gratian to Kant,” Journal of the History of Ideas 62 (2001): 301–312 and 381–99CrossRefGoogle Scholar.

34. Digest, 1. 3. 7Google Scholar; Decretum Gratiani, Dist. 3 c.4.Google Scholar

35. Summa, In nomine (c.1185). The text is printed in Tierney, , Idea of Natural Rights, p. 67Google Scholar

36. Huguccio, , Summa DecretorumGoogle Scholar (c.1190), printed in Idea of Natural Rights, p. 142Google Scholar

37. Commentaria Innocentii…super libros quinque decretalium (Frankfurt: Minerva GmbH, 1968)Google Scholar (reprint of 1570 edition), Com. ad, X. 3. 34. 8, fol. 430ra.

38. Marsilius of Padua. The Defender of the Peace, 2 vols., ed. and trans. Gewirth, A. (New York: Columbia University Press, 1951–1956)Google Scholar, vol. 2, The Defensor Pads, pp. 187,195Google Scholar. Essentially these same distinctions concerning permissive law were made by Gottfried Achenwall in the eighteenth century. Achenwall's work has been seen as a major step in the development of modern deontic logic; but as happens not infrequently the eighteenth-century author had a medieval precursor. See Hruschka, J., Das deontologische Sechseck bei Gottfried Achenwall in Jahre 1767 (Göttingen: Vandenhoeck and Ruprecht, 1986)Google Scholar.

39. In titulum de Regulis iuris commentaria (Venice: Apud Franciscum Franciscanium, 1581), fol. 64–65Google Scholar.

40. Commentaries a la Secunda Secundae de Santo Tomas, ed. Heredio, Vicente Beltran de (Madrid: Asociación Francisco de Vitoria, 1934), p. 64Google Scholar.

41. Ibid., p. 74.47

42. Ibid., pp. 76–77

43. Tractatus de legibus et legislatore deo, ed. Berton, C., R. P. Francisci Suarez…opera omnia, V, 2.14. 6, p. 137Google Scholar.

44. Ibid., 1.15.1–16, pp. 59–63.

45. Ibid., 2.18. 5, p. 164

46. Ibid., 2.18. 8, p. 165. Suarez was referring here to natural rights in a just war. For more on Suarez's arguments see Tierney, , Idea of Natural Rights, pp. 302–308Google Scholar and “Gratian to Kant” (above, n.33), pp. 390–93.Google Scholar

47. De jure praedae commentarius, trans. Williams, G. L. (Oxford: Clarendon Press, 1950), pp. 10,13Google Scholar.

48. De jure belli et pacis, ed. Scott, J. B. (Washington D.C.: Carnegie Institute, 1913) (Reproduction of the edition of 1646), p. 17.Google Scholar

49. Ibid., p. 16. The whole work of Grotius might be regarded as a treatise on permissive law. Book 2 discussed when it was permissible to go to war and book 3 the kinds of behavior that were permissible in the conduct of war.

50. Leviathan, chap. 14, p. 91.Google Scholar

51. Two Treatises on Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1964), Second Treatise, § 128, p. 370Google Scholar. See also § 4, p. 287, “within the bounds of the Law of Nature”;Google Scholar§ 59, p. 325, “within the Permission of that Law.”Google Scholar

52. Ibid., § 4, p. 287.

53. Ibid., § 6, p. 288

54. Ibid., § 7, p. 289

55. Institutiones iuris naturae et gentium, ed. Thomann, M. in Christian Wolff: Gesammelte Werke, abt.2.26 (Hildesheim: Georg Olms Buchhandlung, 1969) (reprint of the 1750 edition), § 47, p. 24.Google Scholar

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57. The Metaphysics of Morals, trans. Gregor, Mary (Cambridge: Cambridge University Press, 1991), p. 69Google Scholar.

58. Summa Theologiae, 1. 2ae. 94. 2Google Scholar

59. Second Treatise, § 57, pp. 323–24Google Scholar

60. Aquinas understood that law could be permissive (Summa Theologiae, 1.Google Scholar 2ae. 92.2); but he did not develop a doctrine of permissive natural law. For Hobbes a subject's liberty existed only in the absence of any law, in what the sovereign “praetermitted” (Leviathan, chap. 21, p. 147)Google Scholar.

61. In various contexts (e.g., those relating to the limits of human law) Aquinas could have presented a doctrine of natural rights not derived from his teaching on natural law, but complementing it. But he did not choose to do so. In referring to Hobbes's doctrine of natural right as not meaningful I had in mind his comment in the De cive that “the effects of this Right are the same, almost, as if there had been no Right at all” (p. 49).

62. Tierney, B., “ Hierarchy, Consent, and the ‘Western Tradition’,” Political Theory 15 (1987): 646–52CrossRefGoogle Scholar.