For the third episode of The Josias Podcast, we had Pedro José Izquierdo on to talk about rights and law. (And also to hear him call the drafter of the current Austrian Constitution “the Jedi-Master of positivism”).
We wanted to have Pedro on, because earlier this year, he wrote a brilliant piece at The Josias on right and law. To me it was the blogpost of the year. I found it tremendously illuminating, because it clarified for me the relation between the meaning of ‘right’ (ius) that St. Thomas uses, and the meaning common now— as in ‘human rights’. (I remember one of my classmates in college wrote his senior thesis on this question, and I was more confused after hearing his arguments than before).
St. Thomas uses ius in the sense of the object of the virtue of justice. That is, most basically, the thing due to another. For example, the bread that a baker owes someone who has paid him for bread. The modern sense of right is of a moral power, that is what someone ought to be allowed to do without interference. As Pedro shows, the modern sense is an analogical extension (made by Baroque Schoolmen such as Suárez), and originally means that if a thing is one’s right, then the power or licence that one has to do certain things to or with the thing is also due to one, i.e. one’s right. For example, if a piece of bread is someone’s ius, then eating the bread is also his ius. That is, he ought to be allowed to eat the bread.
But in the Enlightenment a fatal switch takes place. The analogical extension of ius, right as a power, comes to be seen as the prime analogate, and objective right, the object owed to the other, as an analogical extension. The Enlightenment theorists hold that something is due to another, because of the inviolable moral power that he has of demanding it. Rather than the power being an effect of his being owed something. Henri Grenier explains the consequences with his customary concision:
If objective right is understood as right in the strict sense, it follows that subjective right, i.e., right as a power, is measured by the just thing, according to conformity to law. Moreover, since law is an ordinance for the common good, it follows that the whole juridical order is directed to the common good. But, if subjective right is understood as right in the primary, strict, and formal meaning of the term, it follows that the juridical order consists in a certain autonomy, independence, and liberty. For subjective right is not measured by the just thing, but the just thing is measured by the inviolable faculty, which is a certain liberty. Therefore, according to moderns, the juridical order is directed to liberty rather than to the common good. This gives rise to errors among moderns, who speak of liberty of speech, liberty of worship, economic liberty, — economic liberalism, — without any consideration of their relation to the common good. (Moral Philosophy § 960).
Grenier’s passage shows how the relation of law and right is also reversed by the reversal of the order of rights. For the moderns, law is a limit on rights for the sake of preserving them. That is, it limits the moral power to do things for the sake of preserving the maximum moral power of doing things in the greatest number of persons. Thus, for example, it limits the power of taking stuff away from others, in order to increase the power of amassing possessions. The end ultimately is for each person to be able to exercise there will (whatever its object) to the maximum extent compatible with others doing the same.
But on the classical view, law is an ordinance of reason for the common good. And it is the ratio iuris, that is it is the measure by which one judges which things are due to whom. Thus, in the ancient conception, everything goes back deliberations of reason about the common good, and what serves it. So, for example, the distribution of private property will be regulated with a view to what serves the common good. Therefore, the law can put limits on the acquisition of wealth, if it judges that too great an acquisition damages social peace. Or it can forbid certain kinds of contracts or loans that are judged to be prejudicial civic friendship.
On the modern view, on the contrary, everything finally goes back to individual will. This is (of course) grounded in two understandings of the good. On the ancient view the good is desired because it is good, at it found primarily in the common good. But on the modern, desire or will is primary, and things are only called good because they happen to be desired or willed. Hence the primary realities grounding society in Enlightenment thought are the moral powers to do what one wills, i.e. rights in the sense with which we are familiar.
