- Debating Medieval Natural Law: A Survey by Riccardo Saccenti
Natural law originated with the Romans. They coined the term ius naturale to describe a set of higher norms or principles for human society. The Roman orator Cicero wrote that "there was an eternal, immutable, and unchangeable law that God had established" (De republica 3.22). The English translation of the Romans' ius naturale, natural law, betrays the richness of thought that emerged from the jurists' analysis of the term. Ius meant law but also meant right. The Roman jurist Ulpian concluded that ius naturale meant "what is always equitable and good" (Justinian, Digest 1.1.11). The meaning of ius as a right was the jurists' most significant contribution to jurisprudence and resulted in an argument for every human being's right to act or not to act or not to be acted upon. Today we would call these rights human rights that are higher norms and not always embedded in a nation's legal system. The origin and meaning of "natural law" has bedeviled, intrigued, and enraged scholars during the post-World War II years. Riccardo Saccenti has written a superb essay that outlines the scholarship and the disputes about the meaning, force, and importance of natural law and natural rights in the Western world.
Until World War II, people had confidence that the just and fair nation state—the Germans called it Rechtstaat—would produce a legal system that would protect the rights of all human beings. Totalitarian regimes disproved that naïve certainty in the twentieth century and continue to crush the rights of people in the twenty-first. Democracies have also demonstrated that they can violate the rights of their citizens and others. The United States' use of torture in the early twenty-first century is just one example. Whether higher norms exist that protect individuals from the power of governments and majorities is a pressing question. It is not just an academic, intellectual exercise.
Saccenti gives a detailed history of the renewed scholarly interest in ius naturale in the nineteenth and early twentieth centuries. French and German scholars were primarily interested in recovering medieval thought to counter the rapid rise of legal positivism. Their political agenda was to curb the power of rulers and the state. The return of natural law stimulated a reaction. Newly minted legal positivists denied that it had any force. Otto von Gierke, Neville Figgis, and the Carlyle brothers at the beginning of the twentieth century began a historical crusade to demonstrate that ancient, medieval, and early modern jurists had much to contribute to the jurisprudence of higher norms, human laws, and custom. The main point of attack for the legal positivists was that natural law was imbued with religious beliefs and doctrines.
In the second half of the twentieth century, scholars turned to two other questions. (1) When did the jurists create the idea of a subjective right—that is, when did jurists and theologians begin to argue that human beings had rights [End Page 142] that did not derive from the legal system? (2) Can subjective rights exist in any meaningful way in a system dominated by legal positivism?
In the mid-twentieth century, the French legal philosopher Michel Villey wrote a series of essays that put forward William of Ockham as the founder of subjective natural rights. Villey was following in the footsteps of his teacher, Georges de Lagarde. Villey identified Ockham's nominalism as a key ingredient in determining whether a philosopher would embrace subjective natural rights. This led to several decades of scholarly debate about whether a thinker's metaphysics is a crucial factor in his philosophical conclusions.
In the second half of the twentieth century, John Finnis and Brian Tierney were two key figures in the debate. In two books published in the 1980s, Finnis argued that Thomas Aquinas had developed a fully formed system of thought on natural law and natural rights. Tierney maintained that Aquinas had no...