Feature
Medieval Thinking
Our Modern Rights Tradition Has Much Older Roots Than Many Realize
Andrew Latham & Laurel Kriesel-Bigler
The conventional account of the evolution of the modern rights tradition traces the birth of that tradition back to John Locke (1632–1704), the Glorious Revolution (1688), Thomas Paine (1737–1809), and the framers of the U.S. Constitution (1787–1789). According to this account, political and philosophical developments occurring first in early modern England and later in colonial America gave rise to a radically new understanding of rights.
The pre-modern understanding of rights—as articulated in the Magna Carta, for example—was that they were conditional claims made by people occupying particular social roles (vassals, for example) vis-à-vis people occupying different, and usually higher, social roles (lords, to continue the example). This understanding was radically reworked in the modern era, or so the conventional account would have it, by quintessentially modern thinkers like Locke, who redefined rights as unconditional and inalienable claims to such things as life, liberty, and the pursuit of happiness made by all persons against all other persons and especially the state.
In recent decades, however, historians have called this modernist account into question. The political theorist Leo Strauss, for example, suggested in the 1970s that the roots of the modern rights tradition could be traced back to the writings of the political philosopher Thomas Hobbes (1588–1679). Others, like the historian Richard Tuck, have traced the birth of the modern concept of rights even farther back, to the writings of the French theologian Jean Gerson (1363–1429). Still others, such as the French scholar Michel Villey, have located the origins of the modern idea of rights farther back yet, specifically in the work of the English philosopher and theologian William of Ockham (1287–1347).
Tierney's Thesis
In fact, however, both the traditional and the more recent revisionist accounts are wrong. The modern notion of a universal right as a subjective, natural, and inalienable faculty actually has roots that extend back beyond Hobbes, Gerson, or even Ockham. Indeed, as the medievalist Brian Tierney has conclusively demonstrated, the modern concept of rights has roots that stretch all the way back to Western Christendom's twelfth-century renaissance and the new political concepts that emerged out of the intellectual ferment of that era.
According to Tierney, the seeds of this concept were first planted in the mid-1100s when Gratian's codification of the canon law of the Catholic Church, a document known as the Decretum (c. 1140), began circulating through the legal and intellectual circles of Western Christendom. Fascinated by Gratian's work, which quickly became the standard reference work on canon law, jurists at the great law schools of Bologna and elsewhere set about interpreting, clarifying, and elucidating its arguments.
Tierney's thesis is that, in the course of this world-historical intellectual endeavor, canon lawyers birthed three things that were to prove crucial to the evolution of the modern concept of rights: (1) the development of a new understanding of natural rights, (2) a conceptual shift in the discourse pertaining to rights, and (3) the universalization of rights across humanity.
The development of a novel, radicalized understanding of the term ius naturale (natural right or law) sprang from attempts at reconciling Gratian's contradictory usage of the term in the Decretum. The jurists engaging with Gratian's work were confronted by its radical departure from the feudalistic and order-based culture that structured medieval society. This tension catalyzed the reinterpretation of the definition of ius naturale to mean a subjective faculty that is imbued innately within human beings, rather than an "objectively correct or just ordering of society."
In other words, whereas the concept of ius naturale employed by the pre-Decretum canonists was characterized primarily by various mandates and restrictions on individuals, the concept of ius naturale employed by the post-Decretum canonists granted some degree of individual autonomy and the exercise of free will outside the rule of feudal lords and kings. There were rights that no one, regardless of his power, could infringe upon.
Secondly, Tierney posits that the aforementioned conceptual shift provided a new dialect for thinking about ius naturale in terms of the natural rights of individuals, as opposed to the naturally right organization of society. Medieval jurists quickly utilized these new conceptual tools to name and enumerate a number of specificrights. For example, the right of the poor to basic necessities, the right to self-defense from attack, the right to due process, the right to private property, and the right to vote in duly constituted elections were all established between 1150 and 1300. These claims were derived from the principles of natural law and were considered to be innately and inalienably imbued within individuals by God.
Andrew Latham is a Professor of Political Science at Macalester College in Saint Paul, Minnesota. He is the author of Theorizing Medieval Geopolitics: War and World Order in the Age of the Crusades (2011), The Holy Lance (2015), a novel dealing with the Third Crusade, and Medieval Sovereignty (2022).
Laurel Kriesel-Bigler is Prof. Latham's research assistant.
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