Debating Medieval Natural Law

A Survey

Riccardo Saccenti

• Editorial: University of Notre Dame Press
• Año: 2016
• ISBN:
  9780268100438
• Categoría: Philosophy
• Categoría: Medieval & Renaissance Philosophy

In Debating Medieval Natural Law: A Survey, Riccardo Saccenti examines and evaluates the major lines of interpretation of the medieval concepts of natural rights and natural law within the twentieth and early twenty-first centuries and explains how the major historiographical interpretations of ius naturale and lex naturalis have changed. His bibliographical survey analyzes not only the chronological evolution of various interpretations of natural law but also how they differ, in an effort to shed light on the historical debate and on the medieval roots of modern human rights theories. Saccenti critically examines the historical analyses of the major historians of medieval political and legal thought while addressing how to further research on the subject. His perspective interlaces different disciplinary points of view: history of philosophy, as well as history of canon and civil law and history of theology. By focusing on a variety of disciplines, Saccenti creates an opportunity to evaluate each interpretation of medieval lex naturalis in terms of the area it enlightens and within specific cultural contexts. His survey is a basis for future studies concerning this topic and will be of interest to scholars of the history of law and, more generally, of the history of ideas in the twentieth century.

Chapter 1

OBJECTIVITY VERSUS SUBJECTIVITY

In the past sixty years historians started from either the premise of objectivity or that of subjectivity to debate the relation between modern theories of human rights and medieval accounts of ius naturale and lex naturalis. For authors such as Michel Villey, modern theories of human rights have their roots in the crisis of the Christian late medieval philosophical order.¹ Against an idea of human rights that he considered the product of juridical subjectivism and legal positivism, Villey supported a return to the tradition that combines Aristotle, Aquinas, and the Roman jurists.² In contrast, scholars such as Brian Tierney assumed that the relation between the Middle Ages and modernity cannot be reduced simply to opposition between the Christian medieval moral and legal orders and the modern system of “subjective rights.”³ Rather, in their view, a more complex and longer process created a deep connection between the modern theories of natural rights and medieval accounts of lex naturalis and ius naturale.

THE CONSTRUCTION OF A HARMONIOUS SYSTEM OF NATURAL LAW AND NATURAL RIGHTS

In his first studies devoted to Roman legal tradition, published in 1956, Villey stresses how there is no trace at all of a subjective meaning of ius in the entire set of laws and jurisprudence produced in ancient Rome; on the contrary, the term means a fair state of affairs.⁴ According to Villey, Roman jurists used the term ius in an objective sense, as synonymous with dominium, which here does not indicate a right but a state of things preceding law and that law can limit.⁵ Even if several passages of the ancient Roman jurisprudence seem to employ ius in the sense of “right,” Villey always denied such an interpretation. He firmly held that ancient Roman jurists never used ius to indicate a right.

This understanding of the ancient Roman notion of ius is crucial for Villey’s account of the origin of modern natural rights theory. According to the French scholar, in fact, Roman inheritance is one of the main elements in the development of medieval legal tradition. In his studies of the basis and features of juridical thought, Villey noted that medieval authors combined the vestiges of Roman legal tradition with the moral and ethical implications of Christianity. Assuming this understanding of the late Middle Ages, Villey certainly agrees with the main conclusions reached by historical research in the 1930s and 1940s, which stressed the crucial role of Christian theology in the developments of medieval juridical thought.⁶ He notes that all serious research on the foundations of medieval legal culture must examine its theological basis. Particularly crucial for Villey is the scholastic thought of the twelfth and thirteenth centuries, which was the fruit of the so-called philosophie chrétienne.⁷ In this sense Villey’s idea of the passage from antiquity to late antiquity and finally to the Middle Ages is parallel to that offered by Étienne Gilson for the history of philosophy.⁸

Villey distinguished two main periods in the history of the philosophy of law.⁹ The age of the Fathers marks the starting point for a process of construction of the Christian rights theory. Augustine of Hippo’s writings and doctrines are seen as a complete summary of the results reached by the entire patristic tradition. In his City of God, he meditated on the crisis and fall of the Roman Empire, offering to medieval authors the ideal of a perfect political community whose legal sources must be found in the Holy Scriptures. As Villey noted, the “juridical élite” of the High Middle Ages was educated on the basis of this Augustinian tradition, which dominated the cultural panorama until the development of the twelfth-century schools and their teaching method.¹⁰ Gratian in his Concordantia Discordantium Canonum systematized the achievements of this long “Augustinian” tradition. Opening his masterpiece with the equivalence between natural law and the contents of the Old and New Testaments, the medieval master plainly followed the tendency “to absorb the earthly city into the celestial one, to create and organize the city of God on earth.”¹¹

The twelfth century, with the beginnings of the ‘scholastic method’, marks an evolution in the idea of law. The masters in canon law, that is, the commentators on Gratian’s Decretum, prepared the field for the rise of a veritable system of law, which was fully elaborated in the context of university culture during the thirteenth century.¹² In particular, twelfth-century authors, both theologians and canonists, shared a common philosophical interest in the notion of natura. According to Villey, their doctrines and ideas about this concept were crucial for all subsequent discussions about natural law and natural rights, including Thomas Aquinas’s systematic theory of law.¹³ The great Dominican master elaborated his doctrine of law as part of his general project to appropriate Aristotelian philosophy from a Christian perspective.¹⁴ In doing so, he opposed the Augustinian idea that nature is corrupted by original sin. In line with Aristotle, he assumed that human nature has not been completely destroyed by original sin and still maintains the signs of the original order established by God. This state of affairs offers two ways to understand the divine plan, or lex divina: revelation and natural reason. According to this perspective, Holy Scripture and natural law are no longer identical: they are two different approaches to divine law, each with specific features but in agreement in terms of their content.

Villey stresses that the human capability to grasp the divine ordo of the world and to understand humanity’s own proper end clearly shows the existence of a lex naturalis. This lex is the specific expression of the lex aeterna. Natural law, in fact, would be nothing more than the part of eternal law established by God that refers properly to human beings as rational creatures. Human beings, in fact, considering the bonum to which their own nature is ordered, can know the precepts and prescriptions of natural law.¹⁵ Villey goes on to explain that Aquinas, with his idea of a “natural” understanding of natural law, also established the limits of natural law and the need for a different approach from the point of view of Christian faith. Natural law is in fact connected with human cognitive capabilities and their intrinsic limitations, as well as with changes in the contingencies caused by human freedom.¹⁶ Aquinas based on these elements the need for a positive law, adding a third “Aristotelian” justification: the political and social nature of human being that makes the creation of an institutional order necessary.¹⁷ According to this interpretation of Aquinas, natural law is the common moral basis established with respect to the bonum to which human nature is ordained as something rationally created. His discussion of natural law also includes the notion of ius naturale as an objective right, that is, a moral precept with a mutable character by reason of the changes in human nature. Thomas, Villey notes, gave to the general moral rule, “do good and avoid evil,” a simple formal value, since human beings adapt this general rule to their contingencies.¹⁸ Because of the objective and mutable character of ius naturale as a set of moral principles, Aquinas connected precepts and moral rules to the Aristotelian ethics of virtue and to the complex psychological structure of moral action.

According to Villey, Aquinas presents a harmonious theory of natural law and objective natural rights, based on solid metaphysical ground. God himself, because of his goodness and wisdom, creates the political dimension as the proper feature of human being. Villey notes that Aquinas, assuming the Aristotelian doctrine of four causes, traced an image of the world as harmoniously ordered with respect to specific ends and clearly understandable as such by human reason. Aquinas places natural law on this ground, that is, in the range of features of human beings as rational creatures and thus ordered to act freely. More generally, in Villey’s view, Aquinas fully reintroduced the content of Aristotelian political science to European culture, fixing some crucial points of reference for the debate on the modern state in the following centuries. In fact, Aquinas’s discussion of the idea of “Right” was at the origin of an attempt to adapt the system of law to an evolving European framework whereby secular institutions, such as monarchies and the commons, became the new political actors.¹⁹ Moreover, the Dominican master provided an account of the notion of lex that would be crucial for the evolution of modern juridical systems.

THE INVENTOR OF MODERN NATURAL RIGHTS

Villey explains that Thomism is a system of thought with respect to which a break soon occurred. This break was the starting point of a descending parable if not an interruption of the elaboration of a complete Christian juridical culture. It was this break that, according to Villey’s chronology of the history of legal philosophy, marked the beginning of a third period, the protagonist of which is the Franciscan theologian William of Ockham.²⁰ Villey considers Ockham the founder of the modern idea of natural rights as subjective rights. In this he was deeply influenced by Georges de Lagarde, according to whom the English master is the first champion of natural rights and is responsible for the secularization of Law and Right.²¹

The reasons for the novelty of Ockham’s ideas and the break with the previous tradition of “Christian philosophy” can be found in the very basis of his philosophical thought. According to de Lagarde and Villey, Ockham’s radical nominalism drove theology to bring into question the notion of ordo naturalis, in order to affirm the complete freedom of God’s will.²² Duns Scotus had already stressed the need to preserve God’s potentia absoluta (absolute power) and his consequent freedom from the limitations imposed by a supposed natural order.²³ Ockham would have denied the existence of a natural order and stressed, on the contrary, the real existence of simple individual realities.

Ockham’s nominalism marks a crisis in the metaphysical idea of nature and of the connection between language and reality, bringing about radical changes in the notions of Law and Right as well. “Natural law” and “natural rights” are no longer denominations of an objective set of norms and rules, which is at the basis of the juridical science. Dissolving the metaphysical consistency of nature through his nominalism, Ockham removed the possibility of establishing juridical solutions starting with nature. It is the individual human being, that is, the only existing moral reality, who has to be put at the center of juridical science. The main interest of this science is, then, to describe the juridical qualities of this individual, his faculties and his subjective rights.²⁴ According to this perspective, in Ockham’s philosophical system there is no place for natural law, because the only authority on which rules and precepts rest is divine will. Therefore, Villey concludes, nominalism created the premises for juridical positivism, for without any reference to objective natural law, only the individual will justify the existence of prescriptions or precepts. Moreover, Villey finds in Ockham’s perspective the loss of the universal character of law, because it is linked only to the legislator’s will.²⁵

According to Villey, Ockham is the father of modern individual rights, and his doctrine is the basis on which several successors developed their arguments. Authors such as Jean Gerson and Gabriel Biel and, later, Hobbes, Locke, and Bentham would inherit the content of the Opus nonaginta dierum, in which the radical change from the previously used language to the modern language of natural rights first appeared. In this work, Villey remarks, Ockham devoted his intellectual energy to the polemics on poverty between Franciscans and Pope John XXII. Discussing notions such as ius utendi, potestas licita, usus facti, and ius poli, the Franciscan master used the term ius in a more restricted sense—as an individual power of human being, which became the modern definition of right.²⁶ According to Villey, Ockham’s philosophy was the crucial turning point, the main development of which he saw as occurring with the seventeenth-century École du droit naturel. The members of this “school,” Grotius, Pufendorf, and Thomasius, aimed to create an entire system of “natural subjective rights,” which formed the basis of modern juridical achievements like the civil code.

CHRISTIANITY AND MODERNITY IN LIGHT AND SHADE

Villey’s doctrine of the history of the concept of ius naturale was the source of a large and long debate. The French scholar’s idea that the history of Western European philosophy of law was marked by a radical break caused by Ockham’s theory of rights gave rise to further studies as well as critiques and new interpretations. Certainly Villey offered a clear and complete vision of the development of European intellectual history between the late Middle Ages and the early modern era. Considering the twelfth and thirteenth centuries as the age of natural law theory, followed by the beginning of the age of natural rights theory, he assumed some elements of the idea of historical development proper of other French scholars such as de Lagarde and Étienne Gilson. Generally speaking, in fact, all these authors stress that European culture, since the age of Anselm of Canterbury, Ivo of Chartres, Abelard, and Gratian, was characterized by the progressive building of a harmonious system of thought, where the ancient heritage (both philosophical and legal) was combined within a general Christian framework. Medieval authors merged ancient doctrines with the theological heritage of Augustine and the other Fathers of the Church. According to this interpretation, Thomas Aquinas’s writings contain a higher and more perfect expression of the harmonious combining of these different traditions. What follows after the composition of William of Ockham’s Opus nonaginta dierum is the development of a completely different system of thought, namely, the cultural perspective of the modern age.

Villey’s account of the history of European culture certainly stressed the crucial role of Christianity in the development of philosophical and legal thought during the Middle Ages. Considering the specific topic of natural law and natural rights, Villey’s account remarks on the importance of the theological debate to determine their semantic value. At the same time, in his Leçons d’histoire de la philosophie du droit and La formation de la pensée juridique moderne, he summarizes a series of doubts and questions.

The idea that the history of natural rights theory was marked by a radical break in the development of a harmonious and “humanistic” synthesis of ancient Roman legal tradition and Christian theology seems to be an ideological assumption rather than the conclusion of a careful historical analysis of sources and texts. Villey notes that the sign of this break is the use of the expression ius naturale to define a “subjective right,” that is, a power or faculty proper to an individual human being. According to Villey, as discussed above, this use was unknown before Ockham’s Opus nonaginta dierum. Such an assumption appears to be quite strange, considering the fact that before Villey’s studies, during the 1920s and 1930s, Martin Grabmann and Odon Lottin had offered a series of clear references to legal, philosophical, and theological writings dating to between the twelfth and thirteenth centuries, in which ius naturale also has a “subjective” value.

Villey does not contemplate a study of the semantic evolution of terminology during the medieval period. Furtherm...