Debating Medieval Natural Law: A Survey by Riccardo Saccenti (review)

Few areas of inquiry require a road map to the secondary scholarship as desperately as the history of human rights and natural law jurisprudence. Thankfully, Riccardo Saccenti's new literature review of numerous legal historians restrains itself to a highly readable eighty pages, and maintains a careful balance among numerous historiographies. In addition, copious notes and lengthy citations from primary and secondary sources make this text extremely useful for the researcher who wishes to focus on a specific angle of medieval natural law. Saccenti is as conversant with the historical sources and their philosophical contexts as he is with the long history of their interpretation in the modern period. His excellent monograph can handily bring any scholar up to speed on all three as well.

The basic question at issue in Saccenti's investigation is the following: how have scholars of jurisprudence typically connected the idea of ius in the Middle Ages to its instantiations in the enlightenment era of liberal democracy? In other words, did thinkers like John Locke and Thomas Hobbes originate the jurisprudence of human rights (like life, liberty, and property), or were they simply building on some kind of ancient and medieval tradition? Scholars conversant with this line of inquiry may note that Nicholas Wolterstorff's 2008 book Justice: Rights and Wrongs focused a great deal on this question as well, extending the history of natural law even further back, to the Byzantines, ancient Greeks, and Hebrew scriptures. Unfortunately, Saccenti's book does not interact with or even acknowledge the existence of Wolterstorff's. This is likely a result of the lack of communication between the fields of philosophy and medieval law. Wolterstorff's Justice is mainly aimed at creating a systematic apologetic for his understanding of natural law, with history serving as a backdrop. Saccenti, on the other hand, is providing a full review of secondary literature for historians.

Debating Medieval Natural Law presents three major interpretations of the history of subjective rights as a conversation about ius and its various meanings. The first is that medieval canonists such as Gratian, Huguccio, Bernard of Pavia, and Raymond of Penyafort (to name some of the most famous) originated a jurisprudence that set the stage for a radical shift in the modern period toward individual rights. The second, a view popular with Thomists, argues that it was William of Ockham (d. 1347) whose nominalism and divine voluntarism led to legal positivism and the modern notion of human rights as individual powers (such as habeas corpus, power of attorney, or other "constitutional protections"). The third view is almost whiggish in its outlook, namely that the entire history of ius is a slow evolution from the ancient Roman sense of dominium to the birth of inherent subjective rights in the twelfth century, to the flowering of those rights in the modern period. Saccenti gives each perspective its due and exhaustively covers the history of scholarship in support of each.

The view that turns William of Ockham into the radical legal iconoclast Saccenti assigns to Michel Villey, a French legal historian of the post-war period. Villey's model, offered in his Leçons d'histoire de la philosophie du droit (1957) and several other books and articles, argued that the medieval Thomistic conception of ius sharply contrasts with that of Locke and other modernists, in the sense that medieval philosophy centered ius around the dignity of human nature and what is owed to it, rather than the faculty of individual humans to justly claim the power to act in certain ways. He identified Ockham's metaphysics as the central underpinning of this development, given that the nominalist Ockhamist school did not hold to any metaphysics of human nature, making all faculties and powers individual, and based on the subjective properties of the individual. Other historians followed Villey, such as Francis Oakley and Richard Tuck, to add that Ockham's extreme voluntarism rendered the human and divine will free from the dictates of natural...