by Garrett Robinson
In 1409, a dispute broke out between some of the local parishioners using part of Wymondham Abbey as their parish church and the prior of that abbey. At its height, the parishioners boarded up doors to prevent the monks from accessing the high altar, destroyed parts of the church, and assaulted the prior and his fellow monks so violently on the Vigil of the Epiphany that celebrating Mass was impossible. The dispute began when the prior claimed that responsibility for the western tower of the church building belonged to him; the townspeople claimed it was theirs. A resolution was finally reached recognizing that the western tower and the nave were the parishioners’, while the choir, transepts, and crossing tower fell under the control of the monks. The parishioners also agreed to ring the bells in their tower only between the hours of six in the morning and six in the evening, so as not to disturb the pious slumber of the monks.[1]
This dispute centered on rights to the use of a tower in a church building, for which parishioners and the religious community claimed responsibility for different parts. For pre-moderns, according to D. C. Schindler, rights primarily referred to “claims made by virtue of a given nature, or a given office (which is itself understood as a service of an order given by nature).”[2] Rights were teleological: based on having members of a community fulfil their role within that community. In the Wymondham Abbey example, the dispute was whether it was the role of the parishioners or of the monks to look after the tower.
The sort of right stands in contrast to most of those described and critiqued by Nigel Biggar in What’s Wrong with Rights? Most of the rights he criticizes are of the absolute natural or human sort; in other words, the source of those rights is nature or God or, perhaps, some gesturing at ideas of fairness among humans. Biggar does not cover premodern ideas of rights that, like the dispute over responsibility for Wymondham Abbey’s western tower, “recognizes that rights are essentially social and political entities” that “have their proper place in the objective sphere in which the common good is determinative as the given context in which particular goods subsist.”[3] These sorts of rights much better approximate the rights rooted in virtue and responsibility for which Biggar advocates, and their decline also indicates the rise of absolutizing rights Biggar criticizes.
Many other examples of these rights as “social and political entities” in service of the common good exist. They were especially common in disputes over jurisdiction resulting from disputed claims over which party, usually local lords at odds with each other or the agents of the king, held jurisdiction over such-and-such an offence.[4] In a particularly colorful seventeenth-century example, an under-supported parish priest attempted to collect tithes for his support after his parishioners had already paid them. Previous priests had, as was common, sold the rights to those tithes even though they ostensibly existed to support the local priest. The archbishop temporarily solved the dispute by having the parishioners collect the tithes over the next four years and pay the priest a fixed salary.[5] The tithes were returned to their original purpose, and the village and its priest could again be at peace.
Finally, in a unique usage of the word, taking communion was also referred to as a “right” as it was necessary to fulfill the function of a Christian and achieve salvation.[6] Such a right did not of course belong to the Christian without qualification, so it was not absolute. This right recognized that the proper end of a Christian is to achieve salvation through the reception of the sacraments, so it is proper to his role that he take communion and enjoy the graces thereby bestowed upon him. Where critics of modern rights theory frequently note that new rights appear out of nowhere with no limiting factor, an understanding of these premodern, teleological rights could help identify where the meaning of rights changed, and how that affected what is “wrong with rights” today.
The leaders of Early Modern states understood that, by recognizing “natural” rights of individuals, the state could undermine communities that had previously competed with the monarch for the loyalty of individuals. Especially when on a local scale, these competitor communities were those wherein the rights of individuals and organizations were oriented toward common goods and final ends, as described above. Natural rights, then, at least as accepted by early modern governments, “were the children of the absolutist and expansionist state of early modern European history, not attempts to step outside and beyond the state.”[7] States gladly recognized natural rights because they could act as the basis upon which individuals could make appeals to be freed from the restrictions put upon them by non-state communities, be they church, guild, or eventually even the family.
The Reformation provides one of the clearest pictures of the concomitant growth of individual rights and the modern state, and the use of the former by the latter to quash rival communities. While early reformers like Calvin retained a strong ecclesiastical structure whose local authority resembled that of the medieval church,[8] Protestant minorities later complained when they did not see their communities offered the same liberties of worship as Jews or “heathens.”[9] This development culminated in the thought of those like Althusius, who, in John Witte’s words, “saw absolute liberty of conscience as corollary to the absolute sovereignty of God, a doctrinal staple of Calvinism.”[10] For Althusius, no kingdom could expect total religious conformity.[11] It was, therefore, inexcusable not to offer a right of religious freedom. Granting that freedom of conscience, as most states eventually did in some capacity or another, undermined the authority of any religious polity, whether Catholic or Protestant, both from acting as a serious check on the growing power of the state and from acting as a community in which members exercised rights oriented toward common goods as opposed to individual freedoms.
None of this is to say that contemporary rights regarding freedom of conscience or anything else should necessarily be scrapped. However, when criticizing contemporary ideas about rights, a more robust account of the development of those rights may help to account for where ideas about rights have gone wrong. Further, reacquainting ourselves with premodern, communitarian ideas about rights that emphasize the common good and final ends may also help to establish the sort of rights regime Biggar himself seems to prefer: one where rights exist, but only in second place to the shared pursuit of virtue.
[1] Sidney Oldall Addy, Church and Manor (London: George Allen & Company Ltd., 1913), 378.
[2] D.C. Schindler, Freedom from Reality (Notre Dame: Notre Dame University Press, 2017), 215 (emphasis in original). John Witte makes a similar point about the origin of rights, but instead of referring to “determinate” or “teleological” powers, he instead limits the origins of rights to religious sources. John Witte, The Reformation of Rights (Cambridge: Cambridge University Press, 2007), 338-339.
[3] Schindler, Freedom from Reality, 215.
[4] See e.g. Andrew Willard Jones, Before Church and State (Steubenville: Emmaus Academic, 2017), 179-180. In Willard-Jones’ terms, the different “shares of justice” were debated in a case between the local abbot and provost of the king in a capital case.
[5] Craig Harline and Eddy Put, A Bishop’s Tale (New Haven: Yale University Press, 2000), 135-144.
[6] Nicholas Orme, Going to Church in Medieval England (New Haven: Yale University Press 2021), 280.
[7] Samuel Moyn, “Plural cosmopolitanisms and the origins of human rights,” in The Meanings of Rights, eds. Costas Douzinas and Conor Gearty (Cambridge: Cambridge University Press, 2014), 200.
[8] Witte, Reformation of Rights, 75.
[9] Ibid., 101.
[10] Ibid., 171.
[11] Ibid., 172.