Page 1 of 15

NATURAL LAW AND HUMAN RIGHTS

Ralph McInerny*

In what follows, I shall do three things. First, I shall review the contrast between
the natural law tradition and the modern tradition of natural or human rights, a
contrast of which we have been reminded in recent times by Michel Villey and Alasdair
Maclntyre. Second, I shall discuss attempts to overcome the opposition between the two
traditions, particularly the suggestions of Jacques Maritain, John Finnis, and Felicien
Rousseau. Third, I will comment on what seem to me to be the successes and failures of
these irenic efforts.

I. THE RISE OF HUMAN RIGHTS

The name most readily associated with the insistence that individual rights,
natural rights, are a modern innovation, having no counterpart in ancient or medieval
jurisprudence, is that of Michel Villey. Over a long career, in season and out, he has
argued that all efforts to find in the Aristotelian dikaion or the Roman ius anything like
what we mean by a right are misbegotten.[1]

The just, what’s fair, the dikaion or iustum is a thing, a relation or proportion,

out there, to be objectively determined by the judge so that the contentions of the
parties to a suit are adjusted. The shift from the just as a “thing” (in a large sense of
the term, as out there, an object) to something someone or everyone has, in virtue of
which one can make claims on some or all others, is fundamental and Villey traces its
origins to the so-called Second Scholasticism, the Iberian renaissance at Salamanca
when, because of the unnoticed inroads of nominalism, rights began to be spoken of as
 Page 2 of 15

inherent in individuals.[2] Villey’s association of human rights and nominalism has been

contested,[3] and of course Villey’s insistence would have been unnecessary if there were
not many who argued for a continuum between the ancients and moderns.

Perhaps no one would disagree with Villey’s reading of Aristotle, the Roman
jurists, and St. Thomas Aquinas, when he argues that the just, the dikaion, ius, do not
name a quality or faculty or power of individuals. That there is no suggestion
whatsoever in ancient or pre-nominalist medieval thought of rights in the modern sense
has been contested, however.[4] But even when Villey is accused of overkill in making his
basic historical point, most critics agree that the mark of the modern is to elevate a
theory of society and law on individual human rights and in this the modern surely
differs from the ancient and medieval. Moreover, Villey has pointed out, supposed
instances of subjective rights in Gaius, for instance, have a distinctly odd ring to them.
For example, reading of a ius altius tollendi, we would naturally think of this as a
householder’s right to add a story to his house. But there is also a ius non extollendi,
and this must sound odd to us; what could it mean to have a right not to build higher?
Unless of course we imagined an ancient paterfamilias being importuned by his
household to lift his roof. But that is not what is meant. There are certain situations in
which it is fair, just, objectively right, for one to add to his house and other situations
in which it is not. What right means in that sense is the object of the judge’s sentence
or judgment. Villey also draws attention to the right of a parricide to be put in a sack
full of vipers and dropped into the Tiber. It is difficult to imagine a Human Rights
Commission coming to Lizzie Borden’s aid to insure that she be given her rightful sackful
of snakes and a dip in the river.

Of course if Villey’s point were merely a verbal one, namely, that the term
“right” has altered its meaning in the course of the centuries, we might be reminded of
C.S. Lewis and his Studies in Words. Lewis sought to warn the modern reader that if he
takes words in the sense they have nowadays in reading Shakespeare, say,
misunderstanding will ensue—words like “genius” and “nature,” for example, have
 Page 3 of 15

meanings in medieval and Renaissance literature they do not have for us. But one
cannot miss in Villey’s tone the assumption that we are witnessing, not merely an
alteration of meaning, but also a decline when the term “right” slides toward an almost
exclusive use as the claims an individual can make.

As a devout Catholic, however, Villey could not have missed the way in which such
documents of Vatican II as Gaudium et Spes and so many other magisterial documents
employ without hesitancy the language of human rights. [5] Indeed, he dedicates Le droit
et les droits de l’homme to John Paul II “fihialement ces quelques réflexions suscitée
par son discours sur les Droits de I’Homme.” In his later writings, he concedes that,
given the growth of the modern state, talk of rights as protective claims against state
encroachment makes increasing sense, but this is a reluctant agreement since Villey
remains convinced that most rights claims are chimeric.

I cite Villey here to stand for all those scholars who see contrast and conflict
between natural law and natural rights. Although he would not perhaps see his views in
terms of that division, Alasdair Maclntyre had been one of the most eloquent recent
critics of the notion of natural rights. His criticisms can be attached to Villey’s effort to
derive natural rights talk from the rise of nominalism and the emphasis on the
individual. But Maclntyre would underscore that the individual who is the supposed
carrier of rights simply does not exist. Natural rights theory imagines human beings as
monads prior to any interpersonal relations, lodged in no particular culture or tradition.
Since there are no such individuals, if natural rights require such individuals, natural
rights are chimeric indeed.

Lacking any such social form, the making of a claim to a right would be like
presenting a check for payment in a social order that lacked the institution of
money.[6]

 
 Page 4 of 15

In more recent books, Maclntyre has continued his critique of modernity, but, as if in
response to charges that he is a relativist, has honed the techniques he feels are
necessary if anything like communication between different traditions is to take place.
[7]
 It is a large question whether Maclntyre can be located in terms of the opposition
between natural law and natural rights. For the nonce he does service in this paper as,
along with Villey, one of the most authoritative questioners of human or natural rights.

II. RECONCILING THE TWO TRADITIONS

While there are disputes as to when precisely it begins—and to some degree about its
novelty—the modern theory of human or natural rights is generally recognized to be
based on so different a view of man than that which grounds natural law that any effort
to reconcile these traditions must seem quixotic. No doubt there are many who
thoughtlessly use natural law and natural rights as though they were simply synonymous.
It is far more interesting to find considered and serious efforts to relate and reconcile
the two traditions.

A. MARITAIN ON HUMAN RIGHTS

Jacques Maritain addressed the problem of natural law and natural rights on a
number of occasions, but for purposes of this paper, the treatment in Man and the
State will be taken as canonical.[8] The problem arises when Maritain confronts the
problem posed by the fact that signatories of the 1948 Universal Declaration on Human
Rights held radically different views of what is human and what is right, to say nothing
of democracy, which figures essentially in the document. Maritain states a thesis: men
mutually opposed in their theoretical conceptions can come to a merely practical
agreement regarding a list of human rights.
 Page 5 of 15

Maritain, who served as French ambassador to UNESCO, was not deluded about the
practical situation. The member states represent different and conflicting ideologies,
philosophical and religious traditions, cultures, histories. Agreement by their
representatives on such a declaration as that of 1948 thus must seem either merely
verbal or cynical or hopelessly confused. The philosophical question that arises has to do
with the rational foundation of human rights. He puts his own cards on the table
immediately. “The philosophical foundation of the Rights of man is Natural Law” [80].
Distinguishing the many and various theories of natural law from natural law itself,
Maritain puts forth his own account which will “reestablish our faith in human rights.”

The true philosophy of the rights of the human person is based upon the true idea
of natural law, as looked upon in an ontological perspective and as conveying
through the essential structures and requirements of created being the wisdom of
the Author of Being. [84]

Maritain sees a natural law tradition that goes back through Grotius and Suarez and
Francisco Vitoria to Thomas Aquinas (“He alone grasped the matter in a wholly
consistent doctrine, which unfortunately was expressed in an insufficiently clarified
vocabulary”).[9]The first element of natural law is an ontological one, by which Maritain
means that there exists a human nature, thanks to which every human person is gifted
with intelligence and is capable of pursuing ends in a way for which he or she is
answerable. This nature is the basis for judgments of the normal functioning of the
agent whose nature it is. A proper understanding of what man is thus generates
knowledge of what man should be and do. The law of man’s nature is a moral law. This
ontological element is both a given and an ideal.

Maritain calls the second element of natural law gnoseological, by which he means
our grasp or knowledge of the ontological element. This knowledge is one of the prime
instances of connatural knowledge: we do not grasp the law of our nature in concepts
 Page 6 of 15

and theories: “It is obscure, unsystematic, vital knowledge by connaturality or

congeniality, in which the intellect, in order to bear judgment, consults and listens to
the inner melody that the vibrating strings of abiding tendencies make present in the
subject” [91-92].

Is Maritain unaware of the breach others have seen between the natural law
tradition and the tradition of human rights? Not at all. But he is convinced that
antagonism between the old and new rights of man is overstated and far from
insuperable. Here he has in mind as new rights the social and economic rights insisted
on by Marxists. By the same token, he sees no insuperable obstacle to aligning natural
law and natural rights in the old sense.

One is nonetheless somewhat surprised at Maritain’s confidence about the

compatibility of natural law and natural rights. Indeed, he takes modern lists of rights
as just what natural law is meant to ground. That there might be other theories of those
rights which are in conflict with his theory does not disturb him because he has
distinguished the knowledge of the natural law from the natural law that is known.
What is known is the way things are and theories either get that right or they don’t. The
task then is not to get the other theories to capitulate to his theory, but to get them all
in accord with what they purport to explain.

B. FINNIS ON RIGHTS

The very title of John Finnis’ masterly book of a decade ago— Natural Law and
Natural Rights’[10] —calls attention to the two traditions. Finnis’ task is half completed
before he turns to an explicit treatment of rights but he then observes that his whole
book has been about human rights, which he takes to be synonymous with natural
rights. Indeed, “The modern grammar of rights provides a way of expressing virtualily all
 Page 7 of 15

the requirements of practical reasonableness,” the latter phrase itself being equivalent
for Finnis to the tradition of natural law.

Is Finnis unaware of the dramatic difference others have found between natural
rights and natural law? Far from it. He provides an excellent sketch of the history of the
use of the term ius from St. Thomas, where it retains the sense it had in Roman law, to
a dramatic shift that occurs with Suarez and Grotius and peaks in Hobbes’ opposition
of ius and liberty. With Locke “right” becomes all but defined as liberty. The major
difference, Finnis observes, is that in Roman law, the right was an objective proportion,
a relation, what the judge was guided by when he set things aright. After the great
change, however, a right is something someone has.

Despite this, Finnis is confident that rights talk provides both a vocabulary and a
grammar which will enable him to give an alternative expression of the version of
natural law he has developed in conjunction with Germain Grisez. The treatment of
rights by Finnis, far from being merely the appropriation of a grammar, amounts to a
noteworthy contribution to the theory. He adopts and adapts Hohfeld’s analysis of
rights, according to which rights always involve a triadic relation between one person,
one act-description, and one other person. Claim-rights, liberty, power, and immunity
are deftly defined. For purposes of human rights, claim-rights and liberties are most
important, and claim-rights have duties as their correlatives, while liberties have as
their correlative the absence or negation of duties. Whether or not a claim-right
requires an identifiable person for whose benefit the duty has been imposed is a matter
of stipulation. Finnis contrasts that technical problem with the philosophical question as
to what it is to have a right. He identifies two theories, the benefit theory and the
choice theory of his mentor, H.L.A. Hart. Finnis himself can perhaps be described as a
modified choice-theorist, but then he suggests that Hart too modified his view. The
choice theory arises because it regards the benefit theory as seeing rights simply as the
reflex of rules which impose duties. Hart taught that moral rights amount to a branch of
morality which seeks to determine when one person’s freedom may be limited by
 Page 8 of 15

another. On this view, the point of “rules which entail or create rights is that such rules
specifically recognize and respect a person’s choice, either negatively by impeding or
obstructing it (liberty and immunity) or affirmatively by giving legal or moral effect to it
(claim-right and power)” [204]. But Hart came to see that choice theory was
inadequate, writing that “the core of the notion of rights is neither individual choice nor
individual benefit but basic or fundamental individual needs.” [11] Unsurprisingly perhaps,
Finnis sees this as identical with his own notion of basic aspects of human flourishing.

we may safely speak of rights wherever a basic principle or requirement of

practical reasonableness, or a rule derived there from, gives to A, and to each and
every member of a class to which A belongs, the benefit of (i) a positive or
negative requirement (obligation) imposed upon B (including inter alia, any
requirement not to interfere with A’s activity or with A’s enjoyment of some other
form of good) or of (ii) the ability to bring it about that B is subject to such a
requirement, or of (iii) the immunity from being himself subject by B to any such
requirement. [205]

In short, as he predicted, Finnis is able to recast his whole theory into rights talk.
The benefit theory of rights has been shown by Hart to be only a special case of the
choice theory, so we are prepared for Finnis’ steady correlation of rights and duties. In
his view, “the modern vocabulary and grammar of rights” is an instrument for reporting
and asserting the requirements of a relationship of justice from the point of view of the
person(s) who benefit(s) from that relationship [205].

No wonder, then, that after having sketched the great shift in the meaning of
“right” that marks the modern age, Finnis says that there is no need “to turn back the
clock.” Indeed, he finds “the modern idiom of rights more supple and, by being more
specific in its standpoint or perspective, capable of being used with more differentiation
and precision than the pre-modern use of ‘the right’ (ius)” [209].
 Page 9 of 15

Accordingly, his treatment of the Universal Declaration of Human Rights of 1948

provides not only a keen analysis but a general acceptance of it and similar manifestos.
His attention is drawn to the specification of what can legitimately limit the exercise of
a right. To say that the exercise of human rights is subject to the common good is
otiose, “For the maintenance of human rights is a fundamental component of the
common good” [218].

On the other hand, we can appropriately say that most human rights are subject
to or limited by each other and by other aspects of the common
good, aspects which could probably be subsumed under a very broad conception of
human rights but which are fittingly indicated (one could hardly say, described) by
expressions such as “public morality,” “public health,” “public order.” [12]

In other words, we could say all we have to say using rights talk alone.

Thus it is that John Finnis provides an extended basis for his contention that
natural law and natural rights can be regarded as two sides of a coin, related generally
as duty and right. The modern use of “right” to mean something someone has turns out
to be simply a restatement of the requirements of justice from the side of the
recipient, so to speak. But it is not simply that the old talk can be translated into the
new, Finnis shows a preference for the new and on occasion goes to some lengths to
sing its praises. [220-2 1][13]

C. ROUSSEAU ON RIGHTS

The Rousseau I have in mind is not Jean Jacques but Felicien, whose 1982 book, a
masterful reading of the fundamental Thomistic texts on natural law, conveys the spirit
of the Faculte de Philosophie at Laval University in its golden age. [14] In the course of his
 Page 10 of 15

excellent book Rousseau takes exception to a remark of d’Entreves to the effect that
Thomas’ account of natural law lacks that which is distinctive of the modern age,
namely a doctrine of rights.[15] Au contraire, says Rousseau, and proceeds to argue the
opposite.

Car La connaissance de la loi naturelle, scion iui, repose tout entiére sur une
question de “droits,” et de droits réconnus par “la raison naturelle,” donc de
droits “inalienables” face a La legislation positive de L’Etat. Mais La coherence de
son exposé, a ce sujet, est telie qu’elle n’aurait jamais autorisé l’attribution
d’une primautC a cette forme de “droits naturels” transformés, sans pius, en
revendications subjectives. [159]

What rights does Rousseau imagine that Thomas teaches are grasped by natural
reason, even though he agrees that these cannot be transformed simply into subjective
claim-rights? His case for rights reposes on a remark Thomas makes a number of times to
the effect that, while sin obscures natural law precepts having to do with love of God
and neighbor, such obscurity never extends to self-love and the love of one’s own body.
 Is Rousseau suggesting that inalienable rights arise from self-love? Well, he quickly
[16]

dissociates Thomas from Locke, feeling the latter, under the influence of a decadent
nominalism would turn men into little divine monads. “For Thomas, man is by nature a
sociable animal, made for living with God and other men, according to his most proper
inclinations. The individual can claim ‘natural rights’ only if he begins by recognizing his
duties with respect to the ‘natural rights’ of others. From the outset, the search by
naturally sociable man for ‘his natural rights’ is marked with the seal of solidarity”
[163].

In short, Rousseau is suggesting a reciprocity of duties and rights. If I am obliged

to give another his due, the reverse of this is that he is obliged to give me my due.
Rights-claims make no sense apart from this social interaction. Fortin calls this a
 Page 11 of 15

“stillborn attempt to demonstrate that Thomas’ doctrine is nothing but an earlier

version of the modern ‘rights’ theory, shorn of its individualism.” [17] The suggestion is
certainly an inference from what Thomas actually says since, as Fortin observes, “All of
the texts adduced in support of this paradoxical conclusion speak, not of rights, but of
duties and obligation.” Rousseau is not at all clear that what he is proposing is a
restructuring of Thomas’ doctrine of natural law so that it seems amenable to a rights
interpretation, but in the course of this discussion he is anxious to dissociate Thomas
from the modern doctrine of rights he was initially anxious to associate him with. Surely
it is fanciful to call the decalogue the oldest charter of the rights of man [173].

Despite the grandiose title of his book, Rousseau’s claim that Thomas’ doctrine of
natural law is just as such a theory of natural rights, leaves untouched the difficulties
Maritain acknowledged and wholly lacks the subtlety of Finnis’ analysis of rights. One
would have expected a sustained and detailed effort on Rousseau’s part to confront the
human or natural rights tradition and to spell out his contention that in Thomas we have
a version of rights theory without those aspects of it which make any natural lawyer
wary.

III. NATURAL LAW AND NATURAL RIGHTS

Thus far I have sought to show that there is a fairly clear opposition between
those who see the rise of natural rights as an effective rejection both of natural law and
the presuppositions of natural law and those who see talk of rights as more or less easily
graftable onto the tree of natural law.

Were one to take this simply as a matter of the interpretation of St. Thomas
Aquinas or the exegesis of Thomistic texts, a division of opinion would swiftly make
itself known. On the one hand, there is the emphatic and generally authoritative voice
of Dom Odon Lottin, who states quite categorically that there is no trace of the modern
 Page 12 of 15

sense of a right in the decretist or theological literature of the twelfth and thirteenth
centuries. In those texts, ius preserves what Lottin calls its primitive, objective sense.
So too, while to modern ears “law” evokes primarily the notion of obligation, the
binding of the will of its subject, the decretists and theologians Lottin has studied see
law primarily as a principle of order, a rule of life, a norm for morality. That is why, he
concludes, the medievals used lex and ius interchangeably.[18] Whenever St. Thomas
speaks of what we would call a right, he uses such terms as “is licit” (licitum) or
“power” (potestas), as when speaking of private property, self defense, etc.

Others have found such claims astounding, and advance texts in which right in the
subjective sense seems in play.[19] The efforts of Maritain, Finnis, and Rousseau, as
indicated earlier, are not isolated irenic efforts, but representative of a school of
interpreters of St. Thomas.

I mentioned earlier that Michel Villey seemed somewhat startled to find that his
Church had come to use the language of rights with almost as much abandon as anyone
else. Rights claims proliferated in conciliar and other magisterial documents. In Donum
Vitae, Cardinal Ratzinger spoke of a right to be born by natural childbirth. The pleasure
the Catholic might find in mocking growing lists of human rights is dimmed when he
finds the Magisterium addressing him with this same language. What is the explanation
of this shift?

In what I regard as an all but incredible account, Father Joseph Joblin, in one of
the two papers prepared for discussion at an international conference organized by the
Pontifical Council for Justice and Peace in November of 1988, presents the emergence
of human rights as the basis for political society as pretty much an unequivocal plus and
the Church’s adoption of this basis as more or less progress. He draws attention to the
remarkable change in the Church’s attitude, but suggests that the change may be more
apparent than real. The Church’s “conversion” on the matter is put into quotation
marks. Undeniably, there is the historical record of Pius IX, Gregory XVI, and Pius VI.
 Page 13 of 15

The last named pope commented scathingly on the 1789 Declaration of the Rights of
Man, calling it madness.

This absolute freedom is established as a right of man in society. It not only

guarantees him the right to not be disturbed because of his religious opinions, but
it also gives him licence to think, speak, write, and even print with impunity
everything which the most unbridled imagination can suggest about religion. It is a
monstrous right which seems nonetheless to the Assembly to result from the
innate quality and freedom of all men . . . a chimerical right . . . contrary to the
rights of the supreme Creator.[20]

Not precisely the tone of Gaudium et Spes or of almost every encyclical,

allocution, and animadversion of the present pontiff.

Joblin formulates the following propositions to sum up what he calls the historical
development of human rights.

1. The thread or theme running throughout the history of Western ideas is the
deepening of the concept of human dignity.

2. The implementation of this concept today implies pluralism, given the present-
day intermingling of different civilizations and systems of society.

3. The State can no longer be considered as being invested with the mission of
imposing a concept of human rights which becomes an ideological or religious
system.

4. The Church must be a sign of the aspirations of people for unity despite their
differences. Christians have the responsibility of translating this need into their
everyday lives by trying not to impose their point of view, but by refusing to
 Page 14 of 15

cooperate in those actions which they judge contrary to the true interests of the
human person, whatever the consequences may be. [46]

By any reckoning, this is surprising. If the Church has not undergone a conversion,
it seems clear that Father Joblin has. But it is an uneasy conversion. Does he really think
there has been a deepening of the concept of human dignity? Given the admitted, even
celebrated, pluralism of accounts of what that dignity might consist in, it is difficult to
grasp his point. Of the state, he accepts a purely procedural conception—the state is a
referee of supposed moral neutrality. “The Christian point of view” is treated as a
subjective quirk, not to be wished on others, though Christians will not of course
actively cooperate in activities injurious to “their conception” of the dignity of the
human person. If this were put forth sadly as the best we can hope for, it would be one
thing, but to have this meager menu stand for progress is truly astonishing.

If there is to be any conjunction of the natural law tradition and natural or human
rights, the latter are going to have to be grounded in the same thing as the former: the
way it is—with the world, with man, with his destiny. To speak of a pluralism in this
regard would seem to be bankrupt since among the plurality of views would doubtless
be contradictory opposites. That human society can be variously arranged in keeping
with the precepts of natural law is scarcely a deliverance of modern thought. But of
course that cannot be what Jablot means. He has defined human dignity in such a way
that the only legitimate regime would be democracy, but participation amounts to
pushing one’s subjective views, making claims on others, demanding exemptions from
the judgments of others as to what ought to be done or what may not be done. No
wonder Jablot embraces human rights in what would appear to be the most
impoverished sense of the phrase.

It should escape no one that, if the Church and Magisterium speak of human rights
and the dignity of the human person this is not on the basis of what is taken to be one
opinion or view among many. It is because the human person, any human person, is
 Page 15 of 15

what he is that we owe one another things in justice. In the Maritain or Finnis manner of
seeing rights talk as the recipient’s view of the relation of justice, rights have to be
grounded in what Maritain at least would call the precepts of natural law. But surely not
all exponents of and defenders of rights would agree, and agreeing to disagree does not
seem to be much of a foundation for rights.

Rights as the reverse of obligations do not begin to cover the pullulating claims of
rights, the lengthening lists of non-negotiable demands, the novel assertions put
forward as somehow self-evident. To the degree that the concept of human rights can
be accommodated by the natural law tradition in which St. Thomas moves, the phrase
“human rights” will be equivocal as between Thomists and most of their
contemporaries.[21]