by Matthew Gaetano

Andrew Kuiper’s reflections (here, here, and here) on the theological context for Dan Edelstein’s account of natural rights inspired me to revisit Fr. Dominic Legge’s piece for Nova et Vetera, “Do Thomists Have Rights?” He responds to Brian Tierney’s essential work, The Idea of Natural Rights. In this work, Tierney argues that canon lawyers and some medieval theologians developed a teaching about natural rights but that Aquinas maintained only objective but not subjective rights. Legge presents this distinction as follows:

In the standard account of the historical development of the idea of natural rights, the watershed innovation is typically said to be the notion that individual persons themselves “possess” rights: not only that we judge something to be “right” by nature, in an objective sense (“objective right” or “objective rights”), but that individual human subjects “have natural rights” that they can maintain over against others (“subjective rights”). (127)

Legge argues that there are important distinctions between Aquinas and later scholastics (and especially non-scholastic early modern philosophers), but he maintains (quite convincingly) that the key issue is not whether Aquinas held a notion of subjective rights. I thought that it would be useful to provide some of the many passages identified by Fr. Legge. He acknowledges that not all or even most of these are natural rights and that some of these examples of a possessed ius (potentially translated as right) could also be translated as authority (133). (There are slight modifications to the translations of the texts below, and I have bolded the specific phrases that deal with rights.)

1. De virtutibus, q. 1, a. 4: “However, although both the external members [of the body] and the inferior appetite are moved by the higher part of the soul, this does not happen in the same way. For, in the nature of things, such external members as the hand or foot obey the command of the higher straightaway without any resistance, unless there be some impediment. But the lower appetite has an inclination of its own following on its nature and does not automatically obey the higher appetite. Hence, Aristotle says in the Politics that the soul rules the body as a despot would, as a master rules a slave who does not have the capacity to resist the master’s command. But reason rules the inferior parts of the soul with a royal and political governance, that is, as kings and princes rule free men who have the right and capacity to oppose (ius et facultatem repugnandi) to some degree the commands of king or prince.“
2. Summa theologiae I-II, q. 58, a. 2: “Hence the Philosopher says (Polit. i, 3) that ‘the soul rules the body like a despot,’ i.e., as a master rules his slave, who has no right of opposition (ius contradicendi). Accordingly some held that all the active principles in man are subordinate to reason in this way.”
3. Summa theologiae I-II, q. 96, a. 3: “Now all the objects of virtues can be referred either to the private good of a person, or to the common good of the multitude: thus matters of fortitude may be achieved either for the conservation of the commonwealth, or for upholding the rights of a friend (ad conservandum ius amici sui), and in like manner with the other virtues.”
4. Summa theologiae I-II, q. 96, a. 4: “Laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above—either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory—or in respect of the author, as when a man makes a law that goes beyond the power committed to him—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), ‘a law that is not just, seems to be no law at all.’ Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right (iuri suo debet cedere), according to Mt. 5:40,41: ‘If a man… take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two.'”
5. Summa theologiae I-II, q. 114, a. 3: “And the worth of the work depends on the dignity of grace, whereby a man, being made a partaker of the Divine Nature, is adopted as a son of God, to whom the inheritance is due by right of adoption (cui debetur hereditas ex ipso iure adoptionis), according to Rm. 8:17: ‘If sons, heirs also.'”
6. Summa theologiae II-II, q. 40, a. 1: “In order for a war to be just, three things are necessary. [The first is the] authority of the sovereign by whose command the war is to be waged. For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior (potest ius suum in iudicio superioris prosequi).”
7. Summa theologiae II-II, q. 66, a. 5, ad 2: “With regard to treasure-trove a distinction must be made. For some there are that were never in anyone’s possession, for instance precious stones and jewels, found on the seashore, and such the finder is allowed to keep. The same applies to treasure hidden underground long since and belonging to no man, except that according to civil law the finder is bound to give half to the owner of the land, if the treasure trove be in the land of another person. Hence in the parable of the Gospel (Mt. 13:44) it is said of the finder of the treasure hidden in a field that he bought the field, as though he purposed thus to acquire the right of possessing the whole treasure (haberet ius possidendi totum thesaurum). On the other hand … if the thing found appears to be unappropriated, and if the finder believes it to be so, although he keep it, he does not commit a theft. In any other case the sin of theft is committed [*Dig. XLI, i, De acquirend, rerum dominio, 9: Inst. II, i, 48]: wherefore Augustine says in a homily (Serm. clxxviii; De Verb. Apost.): ‘If thou hast found a thing and not returned it, thou hast stolen it’ (Dig. xiv, 5, can. Si quid invenisti).”
8. Summa theologiae II-II, q. 100, a. 4, ad 3: “The right of the first-born (ius … primogeniturae debebatur) was due to Jacob by reason of God’s choice, according to Malach. 1:2,3, ‘I have loved Jacob, but have hated Esau.’ Wherefore Esau sinned by selling his birthright, yet Jacob sinned not in buying, because he is understood to have freed himself of his grievance.”
9. Summa theologiae III, q. 46, a. 3, obj. 3: “But the devil possessed no right over man (Diabolus nullum ius in homine habebat), whom he had deceived by guile, and whom he held subject in servitude by a sort of violence.”
10. Summa theologiae III, q. 67, a. 2: “Moreover, by Baptism a man becomes a participator in ecclesiastical unity, wherefore also he receives the right to approach our Lord’s Table (accipit ius accedendi ad mensam domini).”
11. De decem praeceptis, prol.: “For an outsider becomes the adopted son of someone when he acquires a right to his property (quando acquiritur sibi ius). So also charity acquires for us a right to the inheritance of God (caritas acquirit ius in hereditate Dei), which is eternal life, because, as it is said (Rm 8:16-17): ‘The Spirit himself gives testimony to our spirits that we are the sons of God. And if we are sons, we are also heirs, heirs of God, co-heirs with Christ.’ And (Wis 5:5): ‘See how they are numbered among the sons of God.'”
12. Super Matt. 25, lec. 3: “To enter into possession is properly fitting to the one who had a right (qui ius habuit). But we had a right from divine ordination–indeed, from the acquisition of Christ who has acquired this for us.”
13. Super Ioan. 14, lec. 8: “Because the devil even attacked Christ, over whom he had no right (in quo nullum ius habuit), he deserved to lose what he justly held.”
14. Super Rom. 8, lec. 6: “For the adoption as sons is nothing more than that conformity, because a person adopted into the sonship of God is conformed to his true Son. First, in the right to share in the inheritance (in iure participandae haereditatis), as was stated above: if sons, heirs also; heirs indeed of God and joint heirs with Christ. Second, in sharing his splendor. For he is begotten of the Father as the splendor of his glory (Heb 1:3). Hence by enlightening the saints with the light of wisdom and grace, he makes them be conformed to himself.”
15. Quodlibet II, q. 4, a. 2, sc.: “Harm must be done to no one. Now it would harm the Jews if their children were baptized when they were unwilling, because they would lose the right of parental power over their children (amitterent ius paternae potestatis in filios) as soon as the children joined the believers. Therefore, they must not be baptized when their parents are unwilling.”

There are quite a few more passages identified by Fr. Legge that talk about the rights of corporate bodies, figures in authority (e.g., kings, bishops, parents, etc.), and so on. The ius or right being talked about in many of these passages may not align directly with our conception of rights. And most of these are not natural rights–particularly the rights of inheritance obtained by supernaturally infused charity. But it seems that Fr. Legge’s argument that the word ius is employed in a subjective way, where individuals “possess” ius or right, is well-grounded in Aquinas’s works. These passages refer to claims that Christians, parents, free human beings, private individuals under political authority, and friends have in connection with their fellow human beings and even with reference to divine promises.

I trust that these passages will be fruitful for future discussion.