Natural Law's Modern Cousin Germain: Excursus on Right

IT IS APPARENT THAT THE CONCEPT OF RIGHTS is nothing other that the flip side of obligation or duty, although that aspect seems to have been forgotten. The "grammar of rights is a multi-faceted instrument for reporting and asserting the requirements or other implications of relationship of justice." And yet it is a sort of skewed presentation, almost argumentative or adversarial, as it presents justice "from the point of view of the person(s) who benefit(s) from" the alleged requirements of justice. NLNR, 205. This one-sided view of right is something acquired along the way of the development of Western jurisprudence, as it appears not to have been part and parcel of the original concept of right (ius). The original concept of right (ius) included both modern notions of right (as something of a benefit) as well as notions of duty (burdens or limits).* Right or ius was understood within the greater confines or boundaries of what was justice between persons. But there was a shift --sort of like the great vowel shift in English--in the use of the term right (ius) that occurred between St. Thomas and Suarez that gave the term this subjective connotation, one that it did not originally have. The term ius, naturally, is Roman in origin, and it was in its Roman sense that St. Thomas understood it. For St. Thomas Aquinas, the term right (ius) was "the just thing itself" (Ita etiam hoc nomen ius primo impositum est ad significandum ipsam rem iustam.** Thus, St. Thomas's central case of rights (ius) he understood to be the just acts, objects, and states of affairs between men. The principal notion of rights is therefore intricately tied to a just state of affairs, and right (ius) may mean "the fair," "the what's fair," or even that which is "aright." "[I]f one could use the adverb 'aright' as a noun, one could say that [St. Thomas's] primary account is of 'arights' (rather than of rights)." NLNR, 206. Secondarily, St. Thomas also defines right (ius) as:

• the art by which one knows or determines what is just (artem qua cognoscitur quid sit iustum)


• the place in which what is just is awarded (locum in quo ius redditur)


• the award (even if unjust) of the judge, whose role it is to do "justice" (ad cuius officium pertinet iustitiam facere, licet etiam id quod decernit sit iniquum)**

The notion of ius principally as a state of affairs that is just is significantly modified by the time one gets to Francisco Suarez. "If you like, it is Aquinas's primary meaning of 'jus', but transformed by relating it exclusively to the beneficiary of the just relationship, above all to his doings and havings." NLNR, 207. Thus, in his De Legibus (written ca. 1610), Suarez's notion of ius or right has a much more modern ring to it. Suarez defines right (ius) as "a kind of moral power [facultas] which every man has, either over his own property or with respect to that which is due to him."*** "Somewhere between the two men [Aquinas and Suarez] we have crossed the watershed." NLNR, 207. To study the evolution of the term ius between St. Thomas and Suarez would itself be an interesting venture, but Finnis does not explain it.****

We Need Janus-Faced Rights Rights Ought to Look Backward to Duty

The watershed has been crossed by the time Hugo Grotius comes on the scene. Although Grotius maintains the original notion of right (ius), he clearly has adopted as another of the meanings of right (ius) the personalist, subjective notion of right that was seen in Suarez. Grotius defines right (ius) as "a moral quality of the person enabling [competens] him to have or to do something justly," a "moral quality" he describes as a faculty if it is perfect, or an aptitude if it is imperfect.† Grotius elaborates that a faculty is what was referred to as one's suum, one's own, and so included notions of power (over onself, in which case it was called a liberty (libertas), or over others, in which case it was a power (potestas)), dominion or ownership (dominium), and credit or debt (debitum). What is clear, in any event, is that "Grotius is still on the same side of the watershed as Suarez: jus is essentially something someone has, and above all (or at least paradigmatically) a power or liberty. The notion of right (ius) continues its development until the point that it takes leave of the notion of law (moral or positive) and becomes seemingly independent from it. By the time we get to Hobbes, this notion of right is placed in opposition to law:

jus and lex, right and law . . . ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW determineth and bindeth to one of them: so that law, and right differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.

Leviathan, ch. xiv (quoted in NLNR, 208). Right, then, becomes as it were an enemy to Law. Now a tension between Law (which aims at the common good) and Right (which, as defined post-Suarez as a personal faculty) might not be a bad thing. There is always a tension between the rights of the community and the rights of the individual which ought to be balanced. The problem, however, is that the notion of rights was torn out of any mooring in any norm. At least in Hobbes, it is clear that his notion of rights was shed of "virtually all its normative significance." NLNR, 208. So much so that, in state of nature, rights become a virtual free for all, to the point where one might say that one has rights to do anything with oneself and with regard to another so that rights are near absolute and without limit. The other side of the coin, however, is that everyone else's rights are similarly absolute, so that in point in fact, the absolute nature of everyone's rights nullify everyone else's to the point where no one has any rights. NLNR, 208. While Hobbe's extreme views may not have been adopted by the majority of jurists after him, the notion of right as liberty from law survived, and so we find right (ius) understood by, for example, Locke or Pufendorf as a liberty.†† In any event, the notion of rights prevalent today seems clearly to be one that is in opposition to law, and one that is not based upon the same moral norms or notions of the common good that one finds in law. Rights are no longer a benefit that arises from law (a chose in law), but a choice independent from and even apart from law (a liberty from law). Torn from their mooring in law, however, rights so fashioned bring in their wake significant problems. First of all, of course, they can be advocated against the common good. Secondly, they can be advocated as something more fundamental than the moral law. Thirdly, they have a significant problem justifying their moral existence, shorn as they are from any foundation in law.

There should be no question of wanting to put the clock back. The modern idiom of rights is more supple and, by being more specific in its standpoint or perspective, is capable of being used with more differentiation and precision that the pre-modern us of the 'the right' (jus). But it is salutary to bear in mind that the modern emphasis on the powers of the right-holder, and the consequent systematic bifurcation between 'right' (including 'liberty') and 'duty', is something that sophisticated lawyers were able to do without . . . . In Roman legal thought, 'ius' frequently signifies the assignment made as between parties of justice according to law; and one party's 'part' in such an assignment might be a burden, not a benefit--let alone a power or liberty of choice.

NLNR, 209. While Finnis appears to adopt, then, the modern vocabulary of rights, he tries to put brakes upon it. He seeks to re-incorporate the notion of rights into the greater construct of justice and the common good (which, of course, would link it with law, which also serves justice and the common good).

[W]hen we come to explain the requirements of justice, which we do by referring to the needs of the common good at its various levels, then we find that there is a reason for treating the concept of duty, obligation, or rquirement as having a more strategic explanatory role than the concept of rights. The concept of rights is not on that account of less importance or dignity: for the common good is precisely the good of the individuals whose benefit, from fulfilment of duty by others, is their right because required of those others in justice.

NLNR, 210.
___________________________________
*The use of the same word to express both right and duty is not limited to the original use of the Roman term ius, but seems to be quite common in other societies. Finnis gives the example of African tribal regimes where the same word is used for both concepts and comes from a large sense of ought. In Barotse the word swanelo and in Tswana the word tshwanelo are used to refer to what is "due," but in a manner that "looks both ways along a juridical relationship, both to what one is due to do, and to what is due to one." NLNR, 209. The notion of ius, of swanelo, of tshwanelo then is a notion that, like the Roman god Janus looked both ways. **S.T. Iª-IIae q. 57 a. 1, ad 1. ***De Legibus, I, ii.4. (. . . illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentum, vocutar ius . . . .) ****In his notes he suggests that it may have its source in a nominalistic philosophy, since it appears that Ockham may have expanded the notion of ius from its traditional meaning to the meaning of ius utendi which he defined as "a lawful power of using an external object, a power which one ought not to be deprived of against one's will except for fault or other reasonable cause; a power such that, if one is deprived of it, one can institute legal proceedings against the person so depriving one." (jus iutendi est potestas licita, utendi re extrinseca, qua quis sine culpa sua et absque causa rationabili privari non debet invitus, et si privatus fuerit, privantem poterit in judicio convenire.) This already sounds like a modern conception of right. †Ab hac iuris significatione diversa est altera, sed ab hac veniens, quae ad personam refertur; quo sensu ius est Qualitas moralis personae competens ad aliquid iuste habendum vel agendum. Personae competit hoc ius, etiam si rem interdum sequatur, ut servitutes praediorum quae iura realia dicuntur comparatione facta ad alia mere personalia: non quia non ipsa quoque personae competant, sed quia non alii competunt quam qui rem certam habeat. Qualitas autem moralis perfecta, Facultas nobis dicitur; minus perfecta, Aptitudo . . . ." IBP 1, 1, 4. ††Locke, Essays on the Law of Nature: jus enim eo positum est quod alicujus rei liberum habemus usum. "For right is predicated on this, that we have the free use of a thing."

Tripartedness of Man's Nature and His Law

IT WOULD SEEM VIRTUALLY INARGUABLE that there is a natural law. It is implied by every positive law, by the fact that we argue over such positive laws' justice, whether they ought to be passed or amended, or even whether and when they ought to be obeyed. It is really only stubborn unwillingness to face the consequent of the natural law (that we may be answerable to something other than ourselves, God perhaps) that makes some men stubbornly refuse to acknowledge the natural law's existence. The consequent that some find unattractive is that man is limited, is constrained by his very nature. He cannot do as he like without fault. But that he may be limited by nature is not a limitation on his freedom. For man can like what he ought not like; he can like things that contradict his very nature. He is a creature who, as a result of his free will, can defeat his own nature, his own purpose, assault his very nature and so is open to self-injure or self slaughter. Man does not like to hear "no," even though the "no" is what keeps him in the "yes," sort of like the curbs or side rails keep one on the road. Some people, I am not quite sure why (the mystery of iniquity), like to ride off-road, and invariably end up in a ditch or worse.

"[N]othing would be right by [positive] enactment if some things were not right by nature." Simon, 118. In his treatment of the natural law, Simon explores a bit further the meanings of the word "right," ius. Like the word "law," lex, it is a word with rich implications and equivocal though related uses (i.e., analogical). The principle meaning of right or ius (or jus) is "that which is right, the thing that is right, the objective right," what Aristotle would call τὸ δίκαιον, or Cicero would refer to as justum. This is tautological, but fundamental.

Another meaning of "right" is more directly related to law. "That which is right is always such, in some way or other by reason of a law." There is a sort of confusion caused by this link between law and right, because the law by reason of which what is objectively right is also called ius or jus in Latin. That use of the word is carried over in most European languages, so we have the word Recht in German, droit in French, diritto in Italian, derecho in Spanish. The word plays therefore a dual role. In English, on the other hand, that concept is carried by the word "law," and so English is particular in parting the first meaning of ius (the right) with the second meaning of ius (the law underlying the right), and it putting the second meaning under the auspices of the word law. What all this means is that the English word "law," instead of the word "right" carries a dual role that it does not have in the other mentioned languages.

This famous particularity of the English language has probably exercised considerable influence on the Anglo-Saxon way of thinking about juridical (or legal matters. What is called the study of jus, Recht, droit, diritto, derecho, is not called the study of right in English, but the study of law. A whole library could be filled with controversies as to whether it is felicitous or not that one and the same word, "law," should be used to express the two ideas which are expressed in Latin by ius and lex, in German Recht and Gesetz, in French by droit and loi, in Italian by diritto and legge, in Spanish by derecho and ley.

Simon, 119.

The third meaning of ius, Recht, droit, diritto, derecho, in English "right," is "the legally recognized and sanctioned claim or faculty to do this or not do do that." This is a post-law notion of "right," which translates to being a "claim or a faculty" which is resident "in a person, or in a community, to whom something is due," and so may be "described as a good, as a service, or as a freedom to do or not to do." Simon, 120. This use of the word "right," which arises subsequent to law is entirely distinct from the other uses of the word "right." The use of the word "right" in this sense, not as the thing which is right, nor as that which is objectively right, but as that which a person can claim as due to him or her by reason of contract, or of positive law, or by custom, or even by nature is of relatively recent origin. Whether it was felicitous that the same word "right" was selected to describe something distinct is really beside the point, since by this day and age this use of the word "right" as claim due to one is too entrenched to change. We must suffer it, and the difficulties in thinking and communication is poses.

Going back to the first use of the term "right" as "that which is right," Simon insists that there are things that are right by nature. "The right by nature . . . would be that which is right by reason of what the things are. In other words, if some things are right by nature, that implies that a law exists in the nature of things." Simon, 120. And here Simon confronts the big division between the physical and moral worlds, both of which would appear to carry the same implication: that there are some things that are right by nature, and so imply that there is a law in the nature of things physical and things moral. So Simon considers "first the unity and then the contrast in the expressions "natural law" and "law of nature," the first by convention used to speak of the moral world, the latter by convention used to speak of the physical world.

Admittedly, there has not been absolute consistency in the use of these terms as referring to the physical world or the moral world. Often enough, the word "law of nature" is used in moral contexts, and the words "natural law" are used in physical contexts. And these are not two absolutely distinct worlds anyhow. There is substantial overlap between the physical and moral worlds, at least in man, and so we simply have to deal with the vagaries in human language. One, however, must recognize that, in man, there is a large area where the "law of nature" in terms of physical law overlaps with the "natural law" in terms of moral law, and it is a false dualism to propose that the physical nature of man has no meaning to his moral nature. It is a false division that was introduced largely by Kant. What Descartes did in dividing the world of matter from the world of soul, Kant did in dividing the physical world from the moral (and intellectual) world. The idealistic philosophies such as that of Kant, "sharpen the contrast between the universe of nature and the universe of morality." Simon, 121. And improperly so.

The Two Worlds in Which Man Moves

Eppur si muove, Signor Kant. The contrast between physical and moral worlds, as Simon notes, "is not so complete" as Kant would have it and would parcel it. Simon, 121.

[M]an, after all, also has a nature; man resembles other things inasmuch as he also has a nature. There is an interior, an immanent law of operation which connects the universe of mankind with the universe of physical nature. Indeed, laws of the physical kind extend to a number of aspects of man. . . . [and being] antecedent to free choice . . . these things . . . belong to the universe of nature. . . . What is particular about the natural law of man, of the moral world, is that essentially it operates through free choice. It exists as a rule inherent indeed in the nature of things bu which does not direct operation in determinate fashion. It governs behavior through judgment and through free choice.

Simon, 122. So man straddles two worlds: the physical and moral world, and, though they may be distinguished, they are, in reality, not entirely separate. There is a physical part. There is a moral part. There is a part that is both physical and moral. The physical informs the moral. The moral informs the physical. Man is one, not two, though there are two aspects to his unity.

Because of man's unique or particular nature, the natural law as it pertains to him may be divided into three divisions according to Simon. The first two divisions of natural law relate principally, but not entirely, to the physical world. Whereas the third division relates principally, but again not entirely, to the moral world.

The first division stems from the fact that "there are in man tendencies which he has in common with all things, above all, the tendency to keep existing." Simon, 123. Simon here invokes the words of Baruch Spinoza: "Every being strives to persevere in being." [Ethics, III, 6] (Conatus, quo unaquaeque res in suo esse perseverare conatur).

The second division relates to "inclinations that man has in common with animals."

Here man communes in a sense with all living nature, but more particularly with the animal nature, since both in man and in many animal species there is some infrarational control of these inclinations. Included in this division are the matters of sex in general, the association of male and female, the care of offspring.

The third division relates to "the inclinations proper to rational beings." It is perhaps the richest, and includes a panoply of human institutions and inclinations: the requirements of life in society, the desire to search and know the truth, to worship God, to express oneself, the problem of obedience, of government, etc.

The Three-Fold Division of Natural Law in Man

This three-fold division in man results in an all-encompassing view of the natural law:

Thus everything that is right by nature [in man] is right either because the universal nature of being is such, or because the universal nature of animal is such, or because the rational nature is such. This threefold classification insures the community between the natural law of the moral world and the natural law of the physical world, no matter how sharply these laws may be contrasted in some respects. After all, man is part of this universe; after all, man has a nature.

Simon, 124.

The theory of natural law is decidedly not Kantian. In practice, Kant placed a huge divide in physico-moral man, a huge intellectual cut between his physical and animal natures and his rational nature. "[T]he most constant tendency of Kant and the Kantian tradition is to strengthen, bring forth, overdo, render overwhelming, if not theoretically exclusive, the contrast between the universe of nature and the universe of morality." Simon, 124-25. The advocate of natural law is absolutely open to the three-in-oneness, the tripartedness yet essential unity of man.

The natural law of the moral world is immanent in a person by reason of his being a being, by reason of his being an animal, and by reason of his being a rational agent with inclinations, tendencies, aspirations which cannot be arbitrarily chosen. Concerning human behavior . . . it is by judgment and by choice that we act either according to or at variance with the inclinations of being the inclinations of the animal nature, and the inclinations of the rational nature.

Simon, 125.