Medieval and modern concepts of rights: how do they differ?
By John Kilcullen
The Nature of Rights: Moral and Political Aspects of Rights in Late Medieval and Early Modern Philosophy, ed. Virpi Mäkinen (Acta philosophica Fennica Vol.87, 2010)
Abstract: To say that there is a moral right to act in a certain way is to say that there is a presumption that such acts are morally right, which implies that others should not blame, punish or deliberately obstruct. A community’s recognition of such rights is a way of reducing conflict among its members. Natural or human rights are rights that ought to be recognised in every community. Statements of natural rights are not analytic; they may be self-evident, at least in the sense that everyone can easily see the usefulness of recognising such rights.
The concept of a right has not changed since the middle ages and neither have the kinds of justifications given for recognising rights. Medieval moralists clearly recognised the human freedom presupposed by all ethical and legal systems and valued the liberty that consists in not being excessively constrained by legally and socially enforced duties. In modern times more recognition has been given to the rights of conscience, and this has led to some attempt to formulate duties we have toward conscientious agents whose actions we cannot accept as morally permissible.
Introduction: Historians of European political thought have for some time been interested in the question, when did the concept of a right, of a natural right in particular, come into use in Europe? The history of this discussion would begin, I think, with Michel Villey, who claimed that the inventor of subjective rights was William of Ockham. Another influential contribution was Richard Tuck’s book Natural Rights Theories: Their Origin and Development. Tuck suggested that the originator was not Ockham but Gerson.
Beginning in 1983 with an article, “Tuck on Rights: Some Medieval Problems”, Brian Tierney has published an important series of studies showing that the language of rights goes back to the canonists of the twelfth century, and that philosophers, theologians and publicists imported rights language from the law into their own work during the fourteenth century-neither Ockham nor Gerson was the first to do so, having been anticipated by Harveus Natalis and Marsilius. Others have also published studies on the history of the language of rights, including Steve McGrade, Annabel Brett, and Virpi Mäkinen and others centred in Helsinki.