Charles J. Reid on Brian Tierney II

In light of my discussion with Jon Rowe about the Bible and rights, here is some more about the origins of the concept of natural rights from the book review The Medieval Origins of the Western Natural Rights Tradition: The Achievement of Brian Tierney by Charles J. Reid:

Tierney begins his study with the canon law of the twelfth century. The twelfth century was a time of "renaissance"-a revolutionary new age that decisively broke away from past practices.' It was also a distinctively "legal" century.  In the late eleventh century, Pope Gregory VII declared the independence of the Church from Henry IV's empire.  Although several decades of struggle and polemicizing followed, the contestants reached a series of compromises in the first decades of the twelfth century that allowed Church and State to coexist uneasily for the next three hundred years.'

The polemicizing that occurred in the late eleventh century, furthermore, was of a uniquely legal nature. By the early twelfth century, after peace was achieved between Church and State, the new universities proved to be the ideal forum for the continued sustenance of the sort of sophisticated legal analysis that had grown out of the struggle between papacy and empire.  Education in both the Roman-law texts of Justinian and the new canon law of the Church became very popular undertakings. Indeed, at the dose of the twelfth century, a developing process of "professionalization" emerged that would establish canonists as "professionals" in a sense easily recognizable by today's legal practitioners.

In the middle of the twelfth century, at the hands of a mysterious figure named Gratian, the canon law received a systematic structure which it would retain until the twentieth century. We can safely say more about Gratian's methods than about his background and training. Adapting his approach from the dialectical reasoning common in the schools of philosophy, and building on the work of predecessors such as Ivo of Chartres, Gratian produced a massive work of synthesis around 1140. Divided into three parts, the Concordia discordantium canonum ("A harmony of conflicting canons")-a name quickly changed to "Decretud'-was intended to reconcile the many inconsistencies that had arisen from a millennium of ecclesiastical legislating and teaching.

Gratian's textbook soon became the foundation for training in the canon law. It quickly attracted its share of commentators, who came to be known as the "decretists" because of their work on the Decretum.  As is the case with any truly great book, the Decretum generated as many questions as answers, and the decretists set about imbibing the wisdom of Gratian's work as well as addressing its shortcomings.

In this context, lawyers and others began to talk about rights in entirely new ways. Tierney elicits a number of examples.  "Gratian himself wrote of the iura libertatis, the rights of liberty," which one cannot lose even when "held in bondage".  But these usages, Tierney cautions, still do not amount to a theory of specifically natural rights.

To be sure that one has discovered a theory of natural ights, Tierney continues, one must traverse a "semantic minefield."  His own concern is with the Latin term ius naturale. While twelfth-century canonists found that this expression had a variety of meanings, Tierney is "concerned mainly with ius as meaning either objective law or subjective right, and with 'natural' as meaning either a primeval state of affairs or an intrinsic permanent characteristic of any being, as when we speak of 'the nature of man."' 

The term ius naturale in the writings of such classical and post classical authors as Cicero or Ulpian meant "natural law" or "natural order," not "natural right." By the seventeenth century, however, the term clearly embraced subjective rights as well. When and under what circumstances, then, did the natural law of Cicero and Ulpian also acquire the meaning of natural rights?

Tierney answers these questions by identifying texts that carried a subjective meaning of ius naturale as early as the first decretist commentaries on Gratian. Gratian himself gave ius naturale an objective definition in the opening words of the Decretum, stating: "'Natural law(/us) is what is contained in the Law and the Gospel by which each is commanded to do to another what he wants done to himself and forbidden to do to another what he does not want done to himself."' Gratian subsequently offered other, competing objective definitions for the term ius naturale, but never attempted to reconcile these with each other or with the meaning he obviously preferred.

Commentators on the Decretum, however, were forced to deal with these inconsistencies, and sought to resolve them by proposing that ius naturale had multiple meanings. In elaborating on these meanings, the canonists introduced a notion of subjective rights into the analysis of ius naturale. Tierney explains:

Gratian himself used the word ius consistently to designate systems of objective law in the opening chapters of the Decretum-e.g. he considered in turn natural law, customary law, civil law, military law, public law as different species of ius, but the canonists who commented on his texts lived in a world where, in everyday discourse,the word ius commonly meant a subjective right. Hence, in their commentaries, they would shift from one meaning to the other, unreflectively it seems, and without seeing any need for explanation, evidently confident that their meaning would be plain to contemporary readers.

Between the 1150s and the 1190s, the decretists worked out a series of definitions of ius naturale as subjective right. Around 1160, the decretist Rufinus proposed a two-part definition for the term that would shape future canonistic thought on the subject, and continues to condition our thought today. lus naturale was, Rufinus began, "'a certain force instilled in every human creature by nature to do good and avoid the opposite.' '  This force, he continued, "'consists in three things, commands, prohibitions, and demonstrations. . . . It cannot be detracted from at all as regards the commands and prohibitions . .. but it can be as regards the demonstrations, which nature not command or forbid but shows to be good."'

Tierney notes that both parts of this definition of ius naturale-"the initial subjective definition of ius and the following tripartite division" into commands, prohibitions, and demonstrations-were subjected to further analysis and refinement.  On the one hand, decretists quickly developed the idea of ius naturale as a natural force of the "human personality."  Indeed, "the greatest of them all, Huguccio, . . . insist[ed] that this was the one primary and proper meaning of the term."

On the other hand, the decretists did not fail to analyze the second part of Rufinus's definition-the idea of ius naturale as an area where nature does not command or forbid. Tiemey finds that a group of English decretists active in the 1180s were especially creative in emphasizing the notion of ius naturale as "'a zone of human autonomy,'" or "'a neutral sphere of personal choice."' The author of the Summa, In nomine, for instance, proposed as a meaning of ius natural.

 "licit and approved, neither commanded nor forbidden by the Lord or by any statute, which is also called fas, as for instance to reclaim one's own or not to reclaim it, to eat something or not to eat it, to put away an unfaithful wife or not to put her away."

Tierney emphasizes that these passages can only refer to a concept of natural rights:

In the texts we have just quoted ius naturale plainly does not mean restrictive law; the term is used to mean what we should call a natural right-to eat what one chooses for instance. The right of nature in these texts is what is permitted by the law of nature.

Thus the canonists fashioned definitions of natural rights congruent with our own understanding. This conclusion is not anachronistic. Tierney has no intention of superimposing a modem conceptual apparatus onto medieval sources. Rather, he argues that twelfth-century lawyers were the first to articulate and acknowledge this basic feature of the Western juristic and philosophic landscape.  The remainder of Tiemey's book explores the ways in which this idea grew and was adapted in the centuries that separate Gratian and Hugo Grotius."

There is a lot here but the thing that jumped out to me was the "zone of autonomy" where God neither commands nor prohibits something.  I also see the "golden rule" is in there.  My question is how does the former tie into the latter?  In other words, how is liberty held in check by the "golden rule"? 

Maybe this is what Jefferson was referring to when he stated, "But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg."  But on the other hand, would not the rightness of worshipping the true God be written on men's hearts from creation? I guess it comes down to if positive law allows for people to violate natural law in the name of  liberty. I think that when Jesus asked the hypocrites who was willing to throw the first stone should give us some insight to a possible biblical answer for this. Nonetheless, I think Jon Rowe is hitting on an important theme with his religious freedom posts.  The floor is open for thoughts.