Human Rights. Michael Freeman

Читать онлайн книгу.

Human Rights - Michael  Freeman


Скачать книгу
or classes – kings, lords, bishops, communities, etc. – by the twelfth century. They were not natural rights. However, according to one conception of natural law, natural right was what natural law permitted. Natural rights might be rights of individuals, but they derived, not from the nature of the individual, but from the right order of society (Tierney 1989).

      One source of late medieval natural-rights theory was the dispute between the Dominicans and the Franciscans, who believed that the ideal human life should follow the example of Christ, embrace poverty, and renounce all rights to property. The Franciscans claimed to renounce their will and their material possessions to devote themselves to God. This challenged the Church, which was committed to the compatibility of Christian virtue and private property. The Dominicans argued that the Franciscans could not renounce their will, and they could not entirely renounce property, as they were necessarily the proprietors of the food and drink that was necessary to their survival. In 1328 Pope John XXII declared that God had granted to Adam dominium over temporal things. Property was therefore sanctified by divine law. By the fourteenth century it was also possible to argue that to have a right was to be the lord of one’s moral world (Tuck 1979; Brett 2003).

      The Magna Carta was later transformed from a limited political and legal agreement into a national myth. From seventeenth-century struggles against monarchical rule in England to various claims to rights for the oppressed around the world today, the myth of Magna Carta has been invoked in causes associated with civil and human rights. Eleanor Roosevelt described the UN Universal Declaration of Human Rights as ‘the international Magna Carta’ (Melton and Hazell 2015; Jones 2014).

      There is no direct line from medieval conceptions of ius to early modern conceptions of rights. The humanist lawyers of the Renaissance, for example, were concerned, not with natural rights, but with civil rights (Tuck 1979). However, medieval conceptions of natural law had the most influence on the modern concept of natural rights.

      In the fourteenth century William of Ockham argued that all men knew intuitively that they had a natural power to make choices. Men possessed, therefore, certain liberties that could never be alienated to church or state, and they had a natural right to the necessities of life, and to consent voluntarily to the creation of a system of laws. Positive law was required to coerce fallen men when they did not act according to their natural knowledge of what was morally right (Coleman 1993: 116–17; McGrade 1974).

      The Spanish conquest of America raised important questions for Catholic theology and international politics. The debate on its legitimacy is a largely neglected moment in the history of human rights. Those who justified the conquest employed Aristotle’s doctrine of natural slavery to deny any rights to the native Americans. They were opposed by Bartolomé de Las Casas, a Dominican priest, who argued that the Indians were in all essential respects human and therefore entitled to their land and to self-government. He sought to demonstrate that the Indians had complex cultures and that the Spanish treatment of them showed that the Spanish, not the native Americans, were the barbarians. He defended the collective cultural rights of the Indians rather than the idea of individual human rights, and, in that, anticipated the modern idea of indigenous rights.

      Francisco de Vitoria argued that the cities of the Mexica and the Inca proved that they were not natural slaves, but rational, and consequently had a right to their lands. The Spaniards had natural rights to trade and settle in America, preach the gospel and intervene to prevent Indian rulers from exercising tyranny over their subjects. If the Indians tried to prevent the Spanish from exercising these rights, they would commit an act of war. The Spaniards could then exercise their war rights, including plunder, enslavement, deposition of native rulers and the institution of new ones (Vitoria 1991).

      By the beginning of the seventeenth century there were two principal traditions of thinking about rights. The first emphasized natural, subjective, individual rights. The second emphasized objective right and/or civil rights. The Dutch jurist, Hugo Grotius, was a crucial figure in transforming medieval ideas into the modern concept of rights. He held that the will of God was law, and was known through man’s sociability, which was the basis of all other laws of nature. Men had natural rights, but these were transformed by society. The law of nature concerned the maintenance of rights, the subject-matter of justice. ‘Rights’, Richard Tuck says in his discussion of Grotius’ ideas, ‘have come to usurp the whole of natural law theory, for the law of nature is simply, respect one another’s rights’ (Tuck 1979: 67). Everyone should enjoy his rights with the help of the community, which was required to defend our lives, limbs, liberties and property. Grotius held that moral obligations were owed not only to members of one’s own society, but also to mankind as such. He also maintained that his theory of natural law did not logically require belief in the existence of God, providing thereby the basis for a secular theory of natural rights. Like Vitoria, Grotius argued that there was a natural right to free trade, and, if anyone violated that right the aggrieved party had the right to wage war against the violator. Grotius made this argument in support of Dutch commercial imperialism (Tuck 1979; Van Ittersum 2006).


Скачать книгу