The Origin of the Idea of Natural Rights

This probably won't go far, but I thought I'd throw something different out there for people to discuss if they're so inclined, and it's the origins of the Natural Rights we enjoy today.

We have the late great Professor Brian Tierney to thank for this groundbreaking research, which was published back in 1997 but is now gaining more attention and acceptance in scholarly circles:



The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625
https://www.barnesandnoble.com/w/th...ts-brian-tierney/1131983935?ean=9780802848543

Back when I was in school, before Tierney's research had been completed and published, we were taught that the origins of our Natural Rights led back to the great philosophers of the Renaissance and Enlightenment, most notably John Locke, whose assertion of the Natural Rights of Life, Liberty and Property greatly influenced the Founders of my country (United States) and the Framers of our Constitution and Bill of Rights. At that time, some people traced their origins back a little further to Hugo Grotius, but nowhere near as far as Huguccio, Rufinus and the other 12th and 13th Century canon lawyers and decretists working at the University of Bologna. These lawyers and their civil counterparts were studying both the corpus of Roman civil law (aka Justinian's Code) that had recently been recovered in its entirety and Gratian's compilation of the first millennium of church law, known as the Decretum. These lawyers were not only developing civil law in its new contemporary context, but creating the canon law of the Roman Catholic Church (why this took until the 12th Century I can only guess).

Here's a relatively brief background on the history of their work and the origin of the idea of Natural Rights:

The Idea of Natural Rights-Origins and Persistence
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1005&context=njihr

While the history and details of the origins of the idea of Natural Rights is interesting on its own, I can't help but be struck how this research has changed what we have been taught about when and where these ideas originated and how they have reestablished a historical continuum that was not interrupted in the Middle Ages. Again, I was taught that these ideas were the product of an age and philosophers that have been fairly or unfairly associated with anti-clerical and anti-religious beliefs, but now we find that they are a product of Catholic canonists and Christian doctrine, most particularly the Golden Rule and its underlying message of equality and reciprocity.

Of course, we can decipher strains of the origins of the idea of Natural Rights going back to Antiquity, where they were expressed by the Greek playwright Sophocles (in Antigone) and others.

I'll post some other articles, and if anyone cares to share their own thoughts and observations please feel free to do so. I'll point out there is still some debate over the origins of the idea of Natural Rights so there's obviously room for debate here.

 

There really isn’t any such thing as natural or inherent rights. It’s a philosophical human construct. The only rights they exist are those codified and enforced under the law, or those rights an individual can defend.

 

First, do you agree there are "natural rights" or is it just the golden rule (less sexy)?

 

And history is littered with cultures that declared "governent is God".

 

You're wrong, and we've already been over this...

 

Two questions, two answers:

1) I do agree that there are natural rights, as did the Founders and Framers who articulated those rights in the Declaration of Independence and Constitution. Of course, those rights were formulated and articulated centuries before they were expressed in those documents. While the origins of the idea of natural rights can be traced back to the 12th and 13th Century jurists examining the various meaning and uses of the term ius naturale it's widely agreed that William of Ockham was the first to create a doctrine of individual subjective rights and these emerged during the Franciscan poverty controversy between Pope John XXII and the Franciscan order represented by Ockham. In this case, the controversy surrounded the issue of property rights, but Ockham would later expand on those rights and develop the social contract theory that was advanced by Hobbes, Locke and others. Much of this can be found in Ockham's Dialogus, which has been translated from Latin into English and is available to read for free online:

http://publications.thebritishacademy.ac.uk/pubs/dialogus/wock.html
http://publications.thebritishacademy.ac.uk/pubs/dialogus/wtc.html#d1

I don't believe Ockham's Work of Ninety Days, which contained his rebuttal to John XXII's arguments in the Franciscan poverty controversy, is available for free on line, but it is in publication:

2) That's a great question, and I think the answer could go either way. I think an argument can be made that the natural rights we are familiar with are an extension of the Golden Rule. Of course, there are arguments to the contrary and somewhere in between, and a lot of those arguments are based on people's views of natural law and its source (or sources).

 

And to some degree that includes our own, but one of the distinguishing features of Western Civilization is that secular government is divinely sanctioned alongside God's government, and for much of our history the Roman Catholic Church and its laws assumed that role as God's representative on earth. Of course, the legitimacy of that assumption of authority has long been a matter of debate and many of those debates evolved into arguments over natural rights and social contract theory as it pertained to the papacy and its source of authority and power. For example, the Conciliar Controversy:

 

I haven't seen that discussion, could you give a summary please?

 

The conflict is pretty transparent. For those who believe that there are no rights, it underpins their belief then that only government can provide you privileges. Many folks on these forums believe in that. The primary issue with that stance is that they don't recognize the individual's conscience. The conversation goes far back to ancient times when the power of god was literally the acts of a pharaoh. The origination of the concept of free ties back to these times, where the subjugation and oppression of people was questioned.

The rub has always been that some folks fear the rights of others. We see them on these forums today. Freedom for others conflicts with their notion of entitlement. Their desire to oppress others. Their willingness to collectively gather to enforce their tyranny on others.

 

I do not accept the Catholic Church represents the "Body of Christ". It is a government unto itself....prone to be manipulated.

 

Government must submit to "Individual Liberty" IMHO therefore it must be local and limited in it's actions. Just seems to be to great a task given what human nature is...... a desire to wield power over others.

"Stand fast therefore in the Liberty where Christ has set us free, but be not entangled again in the yoke of bondage. Only use not liberty as an occasion to serve the flesh but by love, serve one another."

In that phrase lies all our answers as to why we don't get from government what we need.

 

RE: The Origin of the Idea of Natural Rights SUBTOPIC: Evolution of Philosophy ...
⁜→ Talon, et al,

PREFACE: I have a copy of Prof Tierney's Book. © 1997 Emory University • First published 1997 by Scholars Press for Emory University (UK), it is (as you can see) more than 2 decades old,

The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625

(COMMENT)

I think we have a similar education. But I associate Niccolò Machiavelli (1469–1527), Copernicus (1473–1543), Thomas More (1478–1535), Martin Luther (1483–1546), and of course Galileo Galilei (1564–1642) period of "Renaissance and Enlightenment." Philosophers like John Locke were more like the Renaissance Finally period.

(COMMENT)

Oh yes, These are great observations and contributions.


Most Respectfully,
R

 

RE: The Origin of the Idea of Natural Rights SUBTOPIC: Evolution of Philosophy ...
⁜→ rahl, et al,

BLUF: I have to agree here.

(COMMENT)

If we go back through history, right up to today, we find that most governments determine the rights of the people. And the rights granted to one people are not necessarily the same as those granted to the people of other venues by their government.


Most Respectfully,
R

 

Obviously, William of Ockham and Marsilius of Padua agreed with you.

And corrupted, and it was out of that corruption that the Franciscan poverty dispute erupted and Ockham's doctrine of subjective individual rights emerged.

While we can only speculate, many people (including myself) believe that Pope John XXII chose to pick his fight with the Franciscans over their property rights (or more precisely their renunciation thereof) because the apostolic poverty they practiced in emulation of Jesus and the Apostles contrasted sharply with the opulence of the Church and the papacy. Of course, this created a problem that John XXII hoped to resolve by delegitimizing the Franciscans' claims but he had to go the outrageous length of declaring their opinion on the poverty of Christ heretical. This led to the excommunication of Ockham, the head of the order Michael of Cesena and others, several of whom were burned at the stake. In return, Ockham & Co. declared John XXII a heretic and called for his removal:

William of Ockham: Defending the Church, Condemning the Pope
Ian Smith on why Ockham thought the Pope wasn’t a Catholic.
https://philosophynow.org/issues/56/William_of_Ockham_Defending_the_Church_Condemning_the_Pope

So, to make a long story short, the first doctrine of individual rights emerged from a dispute within the Catholic Church, and if you examine the arguments of both sides you'll find that many of them were based on Scripture (although it was Ockham's superior intellect and logic that won the argument).

 

I fear you missed the point then. Government must be the servant of the governed. It is the cornerstone of our republic in the US. As the servant of the governed, the government itself cannot be the purveyor of rights. It can be the mechanism that ensures that our rights are protected and respected through the establishment of law. But those laws are not what grant us those rights. The slope becomes very slippery when government believes in it's ability to grant or rescind rights to the people, and government only does this when the governed forget why government is in the first place. Government will take rights, we see it in every despotic nation around the world. They do so because it consolidates the power of government. And that is precisely the power that the US was designed not to tolerate.

When government can tell you that you are restricted in what you can say, think, where you can assemble, what you can believe, government has become tyranny. It all stems from the perception that it is your government that gives you your rights.

 

Personally, I consider Locke a figure of the Enlightenment and the rest the Renaissance, but in terms of time and location the contours of the Renaissance are difficult, at best, to define. I think the same can be said for the line between the Middle Ages, Renaissance and Early Modern Era.

So, why are the different rights determined by those different governments different?

Because Positive Law is a philosophical human construct ?

 

Correct, and the Founders and Framers explicitly understood this, and that is what separates free (or relatively free) republics such as our own from totalitarian hell holes such as the former Soviet Union where rights are derived from the State and dictated to the individual. That is antithetical to the principle the United States of America is founded on. Rights are NOT derived from the State.

 

RE: The Origin of the Idea of Natural Rights SUBTOPIC: Evolution of Philosophy ...
⁜→ rahl, et al,

BLUF: No, I don't think I missed the point. I'm looking at reality.

(COMMENT)

While I absolutely agree with your theory, and I believe that is the way it should be, we are just one nation among many nations. And our way is not the way of everyone else.

BTW: Most people think that America is a "Democracy." In reality, America is a "constitutional federal republic."

But, yes... Our government determines your rights, not the other way around. And our government determines how rights and laws are applied. While Congress frivolously wasted time on a matter of Impeachment of President Trump for a crime they could not prove, they look the other way when President Biden violates The Anti-Terrorism Clarification Act of 2018 (ATCA, P.L. 115-253) (Taylor Force Act) without so much as a frown. Neither President is the sharpest pencil in the box. But Congress, although they make the laws, forgot where they put them. And that is a government in decline. People are rapidly losing confidence in our government to do the right thing. Ask yourself → When was the last time Congress actually passed a budget bill on time?

Rights

• what you can say,
  
• (what you) think,
  
• where you can assemble,
  
• what you can believe

These are just a few of the rights we have. And they are not natural rights. They are spelled out in the law and interpreted by the government.


Most Respectfully,
R

 

Excellent post.

Government does not always respect natural rights. In fact, government does not always even respect their own laws they passed.

If you had gone back to the 1950s, pretty much all Americans would have agreed that natural rights are something that exists and that the country was based on it. Unfortunately these days the concept of natural rights seems to be more and more not considered relevant.
At least that's what I'm seeing from the younger generation judging by many of the responses in this political forum and others.

We can educate the society all we want, and even reach a popular consensus on something, but if we do not continually educate the youngest people, it could be lost in a single generation.

As well as each new law passed over the years seeming to set another precedent for loss of individual liberties. More and more societies can just become acclimatized to it and see things as "normal", because that's what they've grown up with and that's all they've ever known.

 

A couple things..The government cannot take your rights away from you absent due process. Simple as that. And by enforcing due process, it does not then also constrain the rest of the citizens, does it? I see a number of folks who I likely agree with, as I do with some of your above observations still trying to insist that rights are granted. Simply put, they are not. Government exists to protect them. Government doesn't provide them to you, it is there to ensure you enjoy them though. And I understand that in some circles, this isn't a seen as "reality". I beg to differ. The only extra reality being imposed here is the supposition then that government extends you rights like it does privileges. We aren't China. We aren't the UK. Fundamental rights are still inviolate here. The nations of the world understand this which is why, where possible, folks flock to our shores. The reason we spell out our rights in the law is for everyone to acknowledge them as the basis for our interactions. Which means, simply that ignorance of your rights doesn't dispel them from you. And folks need to keenly remember this part, your rights and not what your government allows, it's what the governed expect of government.

 

RE: The Origin of the Idea of Natural Rights SUBTOPIC: Evolution of Philosophy ...
⁜→ rahl, et al,

BLUF: No! (I think...) It is a matter of power and influence.

(COMMENT)

I can accept that. It is subjective and not written in stone.

(COMMENT)

​

On the matter of "difference:"

A1: Different governments come in different forms. These forms alter power and influence.​

On the matter of "construct:"

A2: I disapprove of the concepts of (Negative Laws 'vs' Positive Laws) and the parallel (Negative Rights 'vs' Positive Rights). These are just meanings assigned to the arrangement (the nature of the construct).

◈ The "negative" implies an obligation for "inaction" of some sort. (No interference.)
◈ The "positive" implies an obligation for some "action." (Providing or granting an effort.)​

• Remember, when we speak of a "right" - we are speaking of an "entitlement."
  
• However, An obligation is something required by law because of a law.

In law, there is a philosophy of "Nullum crimen sine lege" (no crime without a law): Part of that philosophy is that the court may NOT extend by analogy the law. It must be strictly construed. It also insists that in the case of ambiguity, the summary judgment must be in favor of the accused/defendant. While this philosophy is held true to form under International Law, American courts routinely extend and interpret the law.


Most Respectfully,
R

 

I'm sorry, Rocco, I'm not clear on what you are responding to here.

​

Both of which are true.

I would add that different government come in different cultures, as well, which is pertinent to the question I asked you in Post #16.

Permit me to begin by pointing out when I speak of a right I am not speaking of an entitlement or a privilege. They are distinctly different things.

Secondly, permit me to clarify what I meant by Positive Law:

Dictionary
POSITIVE LAW

NOUN
positive law (noun)

1. statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want. Compare with natural law.

Finally, I'm going to go back and address a comment you made to drluggit:

I agree that they are but a few of our rights and I readily recognize that the rights to freedom of conscience and speech are natural rights. As for 'where you can assemble' I don't recognize that as a natural right either, although it may be connected to some other natural right.

On a side note relevant to the topic of this thread but not necessarily to our discussion/debate, I believe the first natural right that was formulated by the canonists and decretists of the 12th and 13th Century fell under the umbrella of property, which included self-property (or self-ownership) and the natural rights connected to it - self-preservation and self-defense, whether it be the right to defend yourself physically or the right to defend yourself legally (due process). Of course, this natural right to property included private property ownership of one's own real, tangible and intangible property. I presume the Ten Commandments may have had something to do with this - if we are forbidden to kill or steal it implied a natural right to life and private property ownership. Natural rights such as the aforementioned rights to freedom of conscience and speech were formulated later by William of Ockham (in Dialogus) and others.

 

Well, I'm quite demonstrably not wrong. And when we went over this in the past, I also pointed this out to you. Natural rights do not exist outside of philosophical human constructs. It's why they don't exist in nature, and takes Government force, or the ability of one to defend, the rights you are referring to.

 

When we went over this in the past I demonstrated how you were wrong. That's been demonstrated in this thread, as well.

Have a nice day.

 

I'm not surprised natural rights came from a religious source. This notion is faith based and lacks evidence, like religious beliefs.