Читать книгу Human Rights - Michael Freeman - Страница 13

Roman law provides the main link between classical Greek thought about rights and modern conceptions through its influence on medieval ideas. The French historian, Michel Villey, initiated a debate on the distinction between objective right (that which is right) and subjective rights (personal entitlements). Villey argued that Roman law had no conception of subjective rights: the Latin word ius referred to objective right (Tuck 1979: 7–9; Tierney 1988: 4–6, 15). Villey’s view has been questioned on the ground that Roman law conceived of justice as rendering to each his right (suum ius). Other scholars have found rights to property, freedom from arbitrary rule, and fair trial in Roman law. These were not human rights but the legal rights of citizens; non-citizens and slaves were excluded. Slaves were recognized as persons and given some limited protection by the law, but they could not make complaints in court and there was no ideological objection to slavery. Roman law also recognized the law of nations as law common to all peoples – an important precursor of modern international law (Giltaij and Tuori 2015).

The Stoic philosophers believed in a universal moral community, governed by a common natural law. It is, however, doubtful whether they had the concept of human rights, although there is some scholarly disagreement on this point (Sorabji 1993; Mitsis 1999: 176–7). Cicero held that everyone had a duty not to harm anyone else but he did not express this in terms of natural rights but of duties deriving from an objective right order based on natural law common to all rational beings (Atkins 2018: 44).

The Stoic philosophy influenced early Christianity, which provided a new basis for the unity underlying the diversity of peoples. Christians saw the salvation of the individual soul as the highest good. The duty to seek salvation presupposed the autonomy of the individual will, which derived its dignity from the will of God. However, although Christianity separated the demands it made of the individual from those made by society, St Paul preached obedience to secular political authority. Christianity also preached the ‘love of the poor’. Although salvation might be available only to an elite, all humans were morally equal in that each was a candidate for salvation: women as well as men. The Christian author, Tertullian, wrote around 217 ad that it was ‘a basic human right that everyone should be free to worship according to his own convictions’ (Wiles and Santer 1977: 227). A decree of the emperor Charlemagne, dated 802 ad, speaks of the rights (justitias) of the people, especially of the poor, the widows and the orphans (Nelson 2019: 396–7). Eventually, the idea emerged that secular laws were not legitimate if they contravened the laws of God. The Church, however, largely conformed to the norms of society, accepting existing social hierarchies, the patriarchal family and slavery.

A clear shift from objective right to subjective rights took place in the late Middle Ages. Medieval people had the concept of the rights of particular persons, statuses, collectivities or classes – kings, lords, bishops, communities, etc. – by the twelfth century. They were not natural rights. However, according to one conception of natural law, natural right was what natural law permitted. Natural rights might be rights of individuals, but they derived, not from the nature of the individual, but from the right order of society (Tierney 1989).

Gratian’s Decretum (c.1140), an encyclopaedia of Church law, referred, however, to the iura libertatis (rights of liberty) that could never be lost (Coleman 1993: 109–10). The thirteenth-century writer, Henry of Ghent, held that everyone had a natural right to self-preservation and property in his body. The canonistic vocabulary of the thirteenth century was rich in terms we can translate as ‘rights’: libertas (liberty), potestas (power), facultas (faculty), immunitas (immunity), dominium (lordship) and others (Tierney 1992: 63–7; 1997: 262).

One source of late medieval natural-rights theory was the dispute between the Dominicans and the Franciscans, who believed that the ideal human life should follow the example of Christ, embrace poverty, and renounce all rights to property. The Franciscans claimed to renounce their will and their material possessions to devote themselves to God. This challenged the Church, which was committed to the compatibility of Christian virtue and private property. The Dominicans argued that the Franciscans could not renounce their will, and they could not entirely renounce property, as they were necessarily the proprietors of the food and drink that was necessary to their survival. In 1328 Pope John XXII declared that God had granted to Adam dominium over temporal things. Property was therefore sanctified by divine law. By the fourteenth century it was also possible to argue that to have a right was to be the lord of one’s moral world (Tuck 1979; Brett 2003).

The Magna Carta (1215) recognizes ‘subjective’ rights by such terms as ‘his right’ (jus suum) (Holt 1965: 96, 100, 104). The concept of rights was, however, at that time embedded in customary law. The Magna Carta was, furthermore, a text whose purpose was to provide remedies for specific grievances. It was, therefore, not a charter of the rights of Englishmen, still less of human rights. Yet its reputation as a precursor of modern human-rights texts is not wholly unmerited. Article 39, for example, says that no free man shall be arrested, imprisoned, expropriated, exiled or in any way ruined, except by the lawful judgement of his peers or by the law of the land. This article was more limited than it might appear, as the category of ‘free men’ was created by royal prerogative. However, Parliament in 1354 applied the principle of this article to all men ‘of whatever estate or condition’ (Coleman 1993: 113–14). The Charter of the Forest (1217) protected important economic rights of free men to forage for food, graze their animals, collect firewood and cut turf for fuel.

The Magna Carta was later transformed from a limited political and legal agreement into a national myth. From seventeenth-century struggles against monarchical rule in England to various claims to rights for the oppressed around the world today, the myth of Magna Carta has been invoked in causes associated with civil and human rights. Eleanor Roosevelt described the UN Universal Declaration of Human Rights as ‘the international Magna Carta’ (Melton and Hazell 2015; Jones 2014).