4a power of the soul capable of exercise without appeal to some higher human authority in the making of choices and the performances of acts.
Inthe latter sense, the exercise of one’s liberty was a
, a ‘right’ or power.When discussed by theologians such
were moral claims on behalf of anormative conception of human nature guided in actions by natural law in all
, whatever their constitutional structure, as republics or monarchies,throughout history. Hence, a language of
was developed from withincommunity – be it a community of the species guided by fixed anduniversally-known norms
or that of political society reflecting species – specific norms in its positive laws so that
did not oppose communityvalues.
MEDIEVAL RIGHTS AND OBLIGATIONS
My aim is to look at a cluster of texts written by scholastic theologians atthe end of the thirteenth and early fourteenth centuries whose authors,despite their increasingly intense engagement with Aristotle’s
, were none the less more influenced by Augustinian understandingsof the category: ‘post-lapsarian man’, the imperfect, fallen individual. WhatI call neo-Augustinians, including secular university masters andFranciscans, seem
to have discussed individual powers, capacities, ‘rights’ inways that were very different from the approach to the same issues of manycontemporary Dominicans. Dominicans held to views of material propertyand its ownership, indeed to the relationship between soul and body, thatdiffered sharply from those of Franciscans and many neo-Augustinians.They also differed markedly on the consequences
of the Fall with respect toour ability, as individuals or collectively, to will and act according to rightreason and perform what natural law commands. It is the Dominicantradition that I think led
more directly to talk of rights as claims in the earlymodern period. Neo-Augustinians, on the other hand, seemed to submerge
See Tierney 1997.
I find Hohfeld’s (1919) sharp distinction between active and passive rights to beanachronistic when applied to medieval discussions.
On medieval subjective right meaning“une qualité du sujet” in Villey 1964, 97–127 and Grossi 1973,
117–222, the reference to
is not to the unique and different, isolated individual whose reason is merely aninstrumental means to achieve objects of private, sensual desire, as one has it in the Englishtradition of Hobbes. Rather, they mean to focus on the intentions behind acts of normativeagents, universally conceived, and
not on ‘this’ intention of a unique, different, naturallyunsocial agent against other intentions of different, naturally unsocial agents who derive
‘right’ from their private desires alone and their view of morality, either from no more thanthe contingent interactions between such individuals or, as in Hobbes, the
arbitrarydetermination of an absolute sovereign.