Aquinas and Rights as Constraints

IT IS WELL KNOWN that Aquinas does not use "right" in its modern sense. He makes many references to jus, or "the right." But claims about "jus," the object of the virtue of justice, do not capture the content of modern claims about "rights." On this much, scholars agree. They disagree as to whether a defense of modern rights claims can be rooted in Aquinas. Some scholars find the notion of human rights entirely consistent with and even implicit in Aquinas's moral theory.¹ Others insist that such notions are not only foreign to Aquinas, but also antithetical to it: one cannot, they argue, attribute a theory of human rights to Aquinas without also attributing to him an Enlightenment view of man.²

In this paper I will be concerned with a much narrower question which has arisen within the broader discussion, namely, whether Aquinas would recognize that there are rights that properly inhere in the individual as such, independently of and prior to the society of which he is a part. Jean Porter has defined such rights as a "moral property possessed by an individual … that exists prior to social arrangements,"³ and has repeatedly argued that Aquinas would have recognized such rights.⁴ Scholars such as Ernest Fortin and Joan Lockwood O'Donovan, by contrast, argue that the assertion of such rights presupposes an Enlightenment view of man and that they are therefore incompatible with Thomist and Aristotelian moral theories.⁵ In this paper I will argue that the texts Porter uses to establish that Aquinas recognizes such rights are insufficient. At the same time, however, I will argue that it is also inaccurate to claim, with Fortin and Lockwood, that the very recognition of such rights presupposes an Enlightenment view of man. I will argue that the foundation for a very narrow version of the rights that Porter is interested in defending can indeed be found in Aquinas, but that this foundation must be sought in a place different from those she cites. I will call the kind of individual rights that can be grounded in Aquinas "rights as constraints."⁶

This paper will have three parts. In the first part, I will articulate and unpack what I take to be the central point of dispute between Porter on the one hand and scholars such as Fortin and O'Donovan on the other. In the second part, I will argue that there are weaknesses in the arguments offered by both sides. In the third and final section, I will propose a resolution. Although Aquinas maintains that man properly pursues his good in and through society, he also both acknowledges that man can pursue his good apart from society and insists that there cannot be any contradiction between the individual and the social good. The seeming consequence is that something inherently opposed to the individual good could never conduce to the political common good. This leaves room, I will argue, for a theory of at least some human rights, rights which act as "constraints" in any other pursuit.

I. Defining the Question

The rights I am interested in examining in this paper are best articulated via a distinction that Porter makes in her book Natural and Divine Law. Porter distinguishes two different ways of defining "rights."⁷ At the first, most general level, rights can be defined as "expressions of the claims and duties that persons have over against one another by virtue of their mutual participation in an objective moral order."⁸ I will call anything that fits this very general definition an R1 right. But, Porter notes, there is also a much more specific way of defining a right, namely, as a "moral property possessed by an individual … that exists prior to social arrangements."⁹ Though Porter does not elaborate on it, her stipulation "prior to social arrangements" is important. The claim that man possesses moral properties prior to social arrangements is not a denial of man's social nature, and it is not a denial that man properly pursues his good in and through society...