In lieu of an abstract, here is a brief excerpt of the content:

Ten RECONCILING INDIVIDUAL RIGHTS AND THE COMMON GOOD: AQUINAS AND CONTEMPORARY LAW Paul Groarke and J.L.A. West The following paper is divided into three sections. The first section briefly reviews the history of the concept of rights and its significance in the ongoing debate between liberals and communitarians. The contemporary literature has overlooked the possibility of constructing a theory of rights on Thomistic principles, which would reconcile individual rights with the common good. The second section reviews Aquinas's position with respect to unjust laws in the Summa Theologiae and draws attention to the prominence of the principle of equality in his discussion. This principle is sufficient to provide the basis for a viable theory of individual rights within an understanding of law that is ordained to the common good. The final section discusses the implications of the Thomistic position in the context of the existing law and general constitutional theory. 1. The Evolution of the Concept of Rights Anyone who has read the contemporary philosophical literature might be forgiven for thinking that the modern understanding of rights rests on the belief in the inherent value of the individual. According to Elaine Pagels, this interpretation is fundamentally wrong. Much more common, and far more universal, in historical and geographical terms, is the opposite idea: that society confers upon its members whatever rights, privileges or exemptions they enjoy. According to this concept, ultimate value derives from the social order.1 In this context, the concept of rights has a distinctly legal flavor. This is evident in the development of the term, which can be seen historically as an attempt to give the moral claims of the individual a supervening authority over ordinary laws. The prominence of the idea of natural rights in our philosophical tradition is usually attributed to Thomas Hobbes and John Locke. Earlier yet, its origins can be traced to Francisco Suarez and other philosophers in the Catholic tradition. Some of the elements of a social contract can be found in the work of these 156 Paul Groarke and J.L.A. West philosophers, who recognized that circumstances exist in which a king could lose his right to govern the people. This possibility did not threaten the relationship between the sovereign and the individual, since individual rights existed within the constraints necessary for the good of the whole community. Francisco de Vitoria, the predecessor of Suarez, wrote: if all men would be equal and subject to no power, with each one tending by his own choice and opinion in a different direction, without some providence which would have common care and concern for the common good, the republic would necessarily be pulled apart and the state would be destroyed.2 This view is firmly within the Thomistic tradition. Vitoria is not questioning the notion of equality per se. He is arguing that it is meaningless to speak of the equality that exists between members of a community outside the social framework of the larger community in which the individual resides. Although Hobbes was influenced by the work of Suarez, the Thomistic influences on the concept of rights were eventually supplanted by a strong liberal notion of autonomy. We do not derive our rights from membership in society; quite the contrary, society derives its legitimacy from the fact that it protects and furthers the rights of individual persons. This view has persisted until the present day and seems to have reached its apogee in some of the more extreme contractarian views in the contemporary ethical literature. The modern concept of rights finds some similarities with the theory of natural law, at least constitutionally, since the natural law derives its legal efficacy from the fact that it can be used to determine the validity of human laws. However, considerable debate has occurred about whether the origin of modern rights is found in medieval thought. Authors such as Maritain, Finnis, and Tully have argued that modern rights theories are either developments of the earlier approach or complementary to it, whereas Macpherson and Strauss have maintained that the two are incompatible.3 Elaine Pagels also denies a continuity between the two approaches, when she writes that the modern concept of pre-political rights is of relatively recent origin. Not until the 17th and 18th centuries is expression given to the notion that every human being hasrights that areto be recognized - notconferred - by society. In the civil war in England, in the tradition that formed the United States Constitution and in the...

Share