Rights

 Although Thomas Aquinas does believe in the existence of rights, he conceives of them in
ways that are significantly different from Enlightenment thought.
o When Thomas begins his treatment of the virtue of justice in the (Summa Theologiae II-
II, q. 57, a. 1, he starts with the question “whether right is the object of justice?” Since it
is obvious that he will answer “yes,” it is simply misleading to believe that he therefore is
advocating rights as we now understand them.
o In fact, there are two Latin words which are translated as “right,” and Thomas clearly
sees a connection between them, since one is a species of the other.
 The two words are rectum and jus. The meaning of rectum is clearly the “morally
correct” and has the sense of “straight and right” in English. What is right in this
sense, is the object of all the virtues, and so it is not specific to justice, but insofar as
justice concerns the ordering of each person to others, there is a kind of rectum that
applies only to justice. This is jus, which is the basis of what is just (justum) and thus
of justice (justitia).
 Thomas fleshes out the meaning of jus through this orientation to others which is the proper
object of justice. Thus, when he comes to define the virtue of justice (S. Th. II-II, q. 58, a. 1),
he says that it is “the habit whereby a man renders to each one his due by a constant and
perpetual will.”
o And since a virtue is defined by the good act which is proper to it, and that a good act is
in turn defined by its proper object, jus or “what is due to each man” seems to have a
logical priority over the virtue of justice. Jus also seems rather like the modern notion of
“right” in that it is that which pertains to every person and what every other person owes
to him or her.
 Two points, however, show that there are differences between Thomas’ jus and the modern
understanding of “right” which stems from Aquinas’ natural law theory.
o First, what the natural law indicates as the good which ought to be done, the rectum, is
much broader than merely jus. The natural law, in theory, commands all the acts of all the
virtues, and so commands that one be temperate, courageous and prudent, in addition to
being just.
 What is right (the rectum) is the object of every act which the natural law commands,
and it seems clear that this is broader than what someone has a right to.
 It seems that the object of good acts is known derivatively, or at least simultaneously,
with knowing that one should do such acts, and so right as rectum is as basic as the
natural law.
o Second, jus is known first as belonging to another person and as the object of an act
which is commanded by the natural law. Thus, the obligatory force of Thomas’ ethical
theory is more basic and is the foundation of jus.

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Objective Right
 Formally, justice is a virtue of the will; materially, it governs the conduct of men in relation
to others. Because of these relations, its basic content consists in performing or abstaining
from certain actions (although this does not do away with internal juridical obligations).
o The immediate object of the just will and action is the right of another. Thus, right and
justice are correlative concepts.
 What is Right? The oldest meaning of the term had an objective sense: the thing that is just,
that which is due in justice, the object of the moral virtue of justice. It signified a thing with a
teleological (referring to purpose or end) bond, the immediate and exclusive destination of a
thing or service (demanded by law or agreed upon by contract) to a person for his use and
enjoyment.
o “Mine”, “yours”, “his”. These words indicate not only an exterior (physical or territorial)
bond between a thing and a person; nor a mere causal relation (a person produces a
thing). These words, rather, manifest that one has a right: that there is something for us
(teleology) which the others must acknowledge and protect.

Right in a Subjective Sense

 Definition. Subjective right is the juridical power of the subject to consider and demand a
specific good as his own and so it must be given to him.
o What it is not. This power or faculty does not consist in mere physical force or in the
external possession of the object, nor in the capacity to keep or recover an object through
one’s own power. Neither is it the simple will to consider and lay claim to something as
one’s own.
o It is, rather, the moral power to claim and possess something in accordance with reason
and the moral order. Subjective right is the moral dominion of man over juridical goods
which are destined for him and his use.
 What is the foundation of subjective right? Subjective right is based on natural law and
positive law, which in turn must be based on the natural law.
 Aspects. There is private right, which verses over the particular good. There is public right,
concerns the participation of citizens in the ordering and the enjoyment of the common good.
 The subject of right in the subjective sense can be a physical person (individual right) or a
moral person (collective right).
 The ultimate cause of subjective right is God, who imposed on man the obligation to
participate in the divine government of the world and gave him the corresponding powers to
do so.

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 The person cannot be treated as an object of right: the person is not a thing that can be owned
by another person. On the contrary, he is the subject and proximate foundation of all rights.
Thus, a human person has some goods that are connatural to him, and others that are acquired
and accidental, all of which constitute the object of his right, i.e. of that relation which can be
truly expressed with the words “mine,” “yours” (e.g. my intelligence, my freedom, my life,
my honor).
 The formal object of justice is, therefore, the subjective right of the person. The material
object of justice is the objective right, the thing that is due.
 There is passive subjective right, which is the same as duty. The permanent will to fulfill the
subjective right of a person insofar as it belongs to him/her is called ius subjectivum
passivum (passive subjective right). This we call duty. In this case, justice as a virtue refers to
the duties with respect to the common good and the particular good of the others, insofar as
the community and the (physical or moral) persons are subjects of rights.
 Active subjective right is the moral faculty or power to do, omit, demand or possess
something (material or spiritual). This is usually called personal right (proper to a physical or
moral person).
 Both passive and active subjective rights coincide in re. They differ according to the
perspective of the person, viewing them either as a duty that is required of one or a right that
one can demand. Thus, the notions of right and duty are correlative: one’s right brings with it
the duty of the others to respect it and to every right of another corresponds one’s duty to
attend to it.

Types of Subjective Rights

 The principal ones (among many others) are: with regard to its 1) origin, 2) effect, and 3)
object.
o 1) With regard to its origin, right is divided into natural, divine-positive, and human
(civil).
 Natural right is a moral faculty of a man to do, demand, etc. something by virtue of
the natural law arising from the fact that a person possesses the human nature (right to
life, right to self-defense, right to a good name). This goes now by the name of human
rights.
 Legal or civil right is that which arises from civil law (e.g. the citizen has the right to
be protected by the public authorities from physical harm and damage to his
properties).
o 2) With regard to its effects: right can be strict or not strict.
 A strict right is that which is so intimately united to the person that its violation is a
manifest offense (e.g. the right to legitimate property). Whoever violates it is bound
to make reparation. Human rights that are inalienable are strict.

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  A right that is not strict (also called imperfect or right in a wide sense) is one whose
violation brings about a certain inconvenience which is more or less grave, but does
not constitute an injustice in the strict sense. For example: a pauper has a non-strict
right to receive alms; an exemplary citizen, to a public recognition of his merits.
o 3) By reason of the object. Strict right is in turn divided into ius in re and ius ad rem.
This can also be considered as a division by reason of the object.
 The right over a thing (ius in re): the juridical good is under the immediate juridical
dominion of the person who is the subject of the right, such that no positive action of
another’s will is needed to obtain such dominion.
 The right to a thing (ius ad rem): the object is not under the immediate dominion of
the subject.
 Hierarchy of Rights. Not all rights are equally relevant to the natural and supernatural
perfection of persons. There is a certain hierarchy: those rights that have to do with eternal
salvation of a person are more important than the rights in the natural order. The right to life
is considered very important. This is usually followed by the right to freedom. Of the
freedoms very important is the freedom of conscience and the practice of religion.

Human Rights
 On December 10, 1948, the United Nations published the Universal Declaration of Human
Rights. In this document it listed these rights:
o The right to life, liberty, and the security of person.
o No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
o No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
o Everyone has the right to recognition everywhere as a person before the law.
o All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.
o Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
o No one shall be subjected to arbitrary arrest, detention or exile.
o Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
o Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary
for his defense.

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o No one shall be held guilty of any penal offence on account of any act or omission which
did not constitute a penal offence, under national or international law, at the time when it
was committed. Nor shall a heavier penalty be imposed than the one that was applicable
at the time the penal offence was committed.
o No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honor and reputation. Everyone has the right to
the protection of the law against such interference or attacks.
o Everyone has the right to freedom of movement and residence within the borders of each
State.
o Everyone has the right to leave any country, including his own, and to return to his
country.
o Everyone has the right to seek and to enjoy in other countries asylum from persecution.
o This right may not be invoked in the case of prosecutions genuinely arising from non-
political crimes.
o Everyone has the right to a nationality.
o No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
o Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution. Marriage shall be entered into only with
the free and full consent of the intending spouses. The family is the natural and
fundamental group unit of society and is entitled to protection by society and the State.
o Everyone has the right to own property alone as well as in association with others. No
one shall be arbitrarily deprived of his property.
o Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.
o Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
o Everyone has the right to freedom of peaceful assembly and association. No one may be
compelled to belong to an association.
o Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.
o Everyone has the right to equal access to public service in his country.
o The will of the people shall be the basis of the authority of government; this will shall be
expressed in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.
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 o Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with
the organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.
o Everyone has the right to work, to free choice of employment, to just and favorable
conditions of work and to protection against unemployment.
o Everyone, without any discrimination, has the right to equal pay for equal work.
o Everyone who works has the right to just and favorable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
o Everyone has the right to form and to join trade unions for the protection of his interests.
o Everyone has the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.
o Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
o Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.
o Everyone has the right to education. Education shall be free, at least in the elementary
and fundamental stages. Elementary education shall be compulsory. Technical and
professional education shall be made generally available and higher education shall be
equally accessible to all on the basis of merit.
o Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance, and friendship among all nations, racial or religious groups.
o Parents have a prior right to choose the kind of education that shall be given to their
children.
o Everyone has the right freely to participate in the cultural life of the community, to enjoy
the arts and to share in scientific advancement and its benefits.
o Everyone has the right to the protection of the moral and material interests resulting from
any scientific, literary or artistic production of which he is the author.

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