The Evolution of Natural Rights Tradition, 1100-1400
By Virpi Mäkinen
Collegium: Studies across Disciplines in the Humanities and Social Sciences, Vol. 4 (2008)
Abstract: The evolution of natural, individual rights has a long tradition starting from the twelfth century. It involved lawyers, as well as philosophers and theologians. The rising voluntarist philosophy of the thirteenth century highlighted the inner workings of the individual’s mind and had a certain influence on the doctrine of subjective rights. One of the most interesting issues in the evolution of natural rights is the psychological assumptions behind it. The natural instinct towards self-preservation and the ideas of self-defence and self-ownership in particular played an increasingly central role in the rights discourse from the thirteenth century onwards and remained central to later theories concerning the rights and duties of individuals and citizens up to the Enlightenment. The moral psychological basis of subjective rights became, however, politically important towards the early modern age, when the Spanish Scholastics were developing the early concepts of human rights, especially that of liberty.
Excerpt: Alanus, a decretist around 1200, wrote about a poor person in extreme need who takes another’s goods in order to save his own life. According to Alanus he did not steal because what he took was really his own iure naturali. A contemporary decretist, Laurentius, wrote that the person in need could declare his right for himself. He stated that when the poor man took what he needed, it was “as if he used his own right and his own thing.” Finally, Hostiensis included the definition in his Lectura on the Decretals, stating that “one who suffers the need of hunger seems to use his right rather than to plan a theft.” Hostiensis’s Lectura was widely read and cited. As Tierney maintains, it was a natural right that was being discussed.
As early as the late Middle Ages, both civil and canon lawyers put increasing emphasis on the rights and responsibilities of the individual. In medieval criminal proceedings (ordo iudiciarius), for instance, the right to defend oneself emerged in twelfth-century canon law as a natural right. The thirteenth-century decretists systematically formulated the presumption of innocence as a subjective right. It has been stated that Roman law did not include the notion of individual rights. There has, however, been much discussion about whether or not they had a theory of natural rights.