Looking for mist or rights

[book cover]If you were to search the word “right” on the online Oxford English Dictionary, click the fourth entry out of nine, further limit yourself to some sense of right consonant with definition 3b on the resulting page (“The fact or position of having justice, reason, or fact on one’s side.”), push all five of the buttons on the top of the page (Pronunciation, Spellings, Etymology, Quotations, and Date chart) and a lot more buttons that even this December’s relaunch of OED.com will not offer, buttons such as Confusions, Connatural, Connections, Connivances, and Context (if OED buttons were published in alphabetical ranges like OED definitions), you would have something like Richard Tuck’s impressive Natural Rights Theories: Their Origin and Development (Cambridge 1979).

Before Tuck begins his fleshed-out, OED-like romp through the history of natural rights, he puts his own book in the context of other modern treatments of the history of natural rights. Unlike the richly patterned rug of natural rights theories Tuck discovers woven under our collective, ignorant feet, the accounts of that rug are sparse and threadbare. Tuck finds it ironic that “the language of human rights plays an increasingly important part in normal political debate [since World War Two], while academic political philosophers find it on the whole an elusive and unnecessary mode of discourse” (1).

But our age’s misty, bipolar approach to rights – frequent, vague assertions of “human rights” divorced from the West’s considerable theoretical history of natural rights – already may be put in at least some historical context, and Tuck attributes this political vs. philosophical irony to the legacy of Samuel Pufendorf, a German philosopher and contemporary of John Locke. Pufendorf limited natural rights to only actionable claims, and his views were picked up on a century later by Jeremy Bentham and the influential Utilitarians; therefore, many current political philosophers find reference to natural rights unnecessary. Why talk about natural rights if such rights are more easily discussed in terms of the duties someone else owes to the holder of such rights? Tuck points out that our current, poorly understood, post-Utilitarian notion of natural rights has helped to support authoritarian regimes (161-62).

But natural rights theories themselves have been mostly a conservative undertaking, I was surprised to learn, and in this respect Thomas Hobbes was no aberration. John Locke’s liberal natural rights theory was a notable exception, a kind of culmination of natural rights’ second flowering. Tuck finds that natural rights have enjoyed two great eras in Western history, 1350 to 1450, and then circa 1590 to 1670. “Seen against a background of European thought as a whole, [the “two great floruits of rights theories”] are freakish and fitful, and their dismantling has been a matter of high priority for succeeding generations” (177). Our nation happens to have been founded in an age already reacting to the last great natural rights flowering, but was founded on principles worked out at the end of that flowering. It explains some of the dissonance I hear in almost every paean to Jefferson or Lincoln.

I’ve moved now to my own theme and not Tuck’s, however. Tuck never mentions Jefferson or Lincoln and, unlike me, seems to have no ax to grind. But he writes about some pretty interesting and subtle ax grinders over the past two millennia, and I’ll leave you with two groups I discovered in his book that I feel an affinity toward, groups that together hedged the first, late-medieval natural-rights flowering.

The first group are medieval glossators (16).  Check out this paragraph from Wikipedia:

The glossators conducted detailed text studies that resulted in collections of explanations. For their work they used a method of study unknown to the Romans themselves, insisting that contradictions in the legal material were only apparent. They tried to harmonize the sources in the conviction that for every legal question only one binding rule exists. Thus they approached these legal sources in a dialectical way, which is a characteristic of medieval scholasticism. They sometimes needed to invent new concepts not found in Roman law, such as half-proof (evidence short of full proof but of some force, such as a single witness). In other medieval disciplines, for example theology and philosophy, glosses were also made on the main authoritative texts.

I really was born too late.

The second
group – the French nominalists and conciliarists – ended the first great natural-rights flowering by providing an easy target for both the Protestant Reformation and the Renaissance to take down natural rights for a hundred and fifty years or so. One of them – Jean Gerson – to whom Tuck attributes the first “fully fledged natural rights theory” (25), based his theory in part on his theology of union, a kind of theosis by which “man could come to be the same kind of being as God.” “Gerson kept a distance between God and man,” Tuck states, “but it was not a categorical break between two different kinds of being, as it was to be in Luther’s theology.” Here’s how Gerson’s theology influenced his rights theory:

This theology also led Gerson to see the relationship between God and man as a reciprocal one between equals. Thus he argued for a natural covenant between God and man, which – and this is the crucial point – generated rights on both sides. According to Gerson, men have rights against God as a result of God’s promise to them. . . . Because of this, we can see how freedom became an important value for Gerson: like Ockham (though with a number of important differences) he elevated the free wills of both man and God together. The arbitrary freedom of God’s will was necessarily matched by a similar freedom of man’s will – there could be no opposition between them. (30)

There’s something of both political and theological babies that the Reformation and the Renaissance drained with that bath water. If we could but risk another bath, perhaps Western civilization would be born again.


Posted August 5, 2010.