X
تبلیغات
نماشا
رایتل

تاریخ حق در تفکر غربی

سه‌شنبه 2 آبان‌ماه سال 1391 ساعت 14:29

 

The History of Rights

in Western Thought(1)

Kenneth Pennington

تاریخ حق در تفکر غربی /

The History of Rights

in Western Thought(1)

Kenneth Pennington

 

 

 

 

 

http://faculty.cua.edu/pennington/Law508/Professor5.JPGThe word for law in Latin and in most European languages is equivocal.  Depending on the context, "ius," "diritto," "droit," "derecho," and "Recht" mean law, the legal system, and right. English is the exception. In English, the concepts of law and rights are separate categories, each word having its own cluster of meanings. A reader in French, German, Italian and Spanish is constantly reminded that the word law means more than "the principles and regulations established by government and applicable to a people,"(2) but also the power of persons to exercise or vindicate rights. English law dictionaries currently used in law schools ignore rights entirely in their definitions of law.(3) In order to excavate "rights" from the word law, we must turn to older dictionaries where we find definitions of law that encompass the "rights and obligations of states, of individuals, and of artificial persons and local communities among themselves and to each other."(4)

Whether or not the silences and shortcomings of contemporary law dictionaries contribute to our sometimes tenuous recognition of individual rights is an intriguing but unanswerable question. They do reflect a Balkanization or compartmentalization of thinking about rights in modern English jurisprudential thought that recapitulates and confirms the categories of "law" and "right" in our language.(5) Thinking about rights can be shaped by our language but also by our historical perceptions about how and where rights emerged in Western jurisprudential thought. If we presume that rights are a creation of the democratic, constitutional nation state and were invented to protect its citizens, we might assume that rights are not universal but unexpected byproducts of the transition from the ancien regime to the modern world. In this construct, citizens have a greater claim to these rights than non-citizens. The nation state becomes the repository and defender of rights. Conversely, one may see rights as being a web of doctrines that transcends the present, has deep roots in the past, and has a universal validity and applicability extending far beyond the Bill of Rights and the decisions the Supreme Court of the United States.

Brian Tierney has written a superb history of thinking about law and rights in the Western tradition that is firmly in the second camp. His book has an extraordinary sweep from the ancient world to the eighteenth century. He is equally at home, and had to be, in the secondary literature of philosophy, law, and history. Unlike most prior discussions, Tierney offers a subtle, learned, and panoramic portrait of the historical evolution of rights in European juristic and theological thought. His book performs the valuable service of setting the current discussion on rights into a much broader context than one finds in our court decisions, legislation, and contemporary jurisprudence.

The core of the book is a masterful survey of the development and evolution of the concept of subjective rights. He locates their origins in the writings of twelfth-century jurists, traces their development in the controversies of the thirteenth and fourteenth centuries, and describes their flowering in the sixteenth century. Each of these stages had a crucial context: the revival of jurisprudence, ferocious religious disputes between a pope and the Franciscan order, and the discovery of the New World. For the first time in any language, Tierney has given us a sustained argument of how rights developed and the reasons why "thinking about rights" did not die on the vine. Each of his historical contexts demanded a renewed consideration of fundamental questions about rights; consequently he can present a satisfying and coherent story of the emergence of rights in Western thought.

The origins of our ideas about rights have been much disputed. Jurists, philosophers, and historians have quarreled over when, where, and how our ideas emerged. At the extreme end of the scale they have even disputed whether a meaningful "right" of a person can exist. In earlier studies, the birthplace of rights have been placed in many stables: from the natural law tradition in Western thought reaching back into the philosophical traditions of the ancient world to Kenneth Minogue's confident declaration that rights are "as modern as the internal combustion engine."(6) Most previous scholars have traced rights back to the late Middle Ages or to the seventeenth and eighteenth centuries. Tierney has sorted out the complicated historiography of rights and has also analyzed the more interesting question: what kind of rights are there? As Tierney points out:

There are many ancillary issues, still matters of current debate, that call for further historical investigation. One such issue concerns the scope of natural rights (assuming they exist at all) especially as regards "active rights" and "passive rights.[p. 3]"

A person may have an active right to do something, to use one's property for example, or may have a passive right to receive something from another person, institution, or government. Economic and welfare rights are good examples of passive rights. Tierney is no newcomer to these problems. He made his first foray into the history of passive rights forty years ago when he published a book on the rights of the poor in the Middle Ages and the early modern period.(7)

Another category is important for thinking about rights: are rights subjective or objective and can they ever be absolute? An absolute right may be defined as one that a person may exercise without constraint. A subjective right is a power or force that inheres in an individual, and an objective right is one that is granted to a person by law, whether human or divine. Over the past forty years, there has been an ongoing debate about whether subjective rights existed before the seventeenth century. The French jurist, Michel Villey, and the English medievalist, Walter Ullmann, believed that individual subjective rights did not exist in the Middle Ages.(8) Most recently, Knut Wolfgang Nrr and Jean Gaudemet have affirmed the idea that subjective rights were not part of medieval thought patterns.(9) In large part, Tierney's book is an extended argument that medieval law did contain a concept of subjective rights.(10) If Tierney is right, the first important conclusion that may be drawn from this fact is that subjective rights are not the creation of a selfish, individualistic, self-centered, capitalistic society. Rather they have long been a part of Western thought. The concept of rights arose in societies whose spirit were far more communitarian than ours and whose law was not as closely identified with the will of the nation state.

Tierney's contexts are of particular importance. As he points out in his introduction, the fact that Western Europeans embraced the idea that individuals had "certain unalienable Rights" must be explained:

All civilized societies have cherished ideals of justice and right order, but they have not normally expressed those ideals in terms of individual natural rights --- it would be hard, for instance, to imagine a Confucian Hobbes or Locke. . . . Questions like these arise: Were the classical rights theorists of early modern Europe merely articulating a doctrine that was implicit, if unacknowledged, in all societies? Or is the whole idea of human rights peculiarly a product of Western culture [pp. 1-2].

He answers these questions by describing the contexts in which he places the origins, development, and elaboration of rights thinking in the Western tradition. The result is an intriguing story that is reminiscent of the current debates about Darwinian evolution. Stephen Jay Gould and Richard Dawkins have debated the course of evolution for a robust decade and differ, sometimes with robust prose, about how evolution and natural selection work. Gould favors a more contingent view of evolution; Dawkins believes in a more inevitable, linear development that stresses the tendency of organisms to adapt genetically to their environment in almost deterministic ways. Tierney prefers Gouldian contingency to Dawkins' inevitability when explaining the evolution of rights in Western thought. He argues that thinking about rights in the Western world evolved contingently --- which explains why individual rights are not an important part of non-Western cultures --- and that three important historical contexts fostered and imprinted rights into the genes of European thought.

The evolution of rights in European thought began with the "Renaissance of Law" in the late-eleventh and early twelfth century. The first step of this Renaissance was the rediscovery of Justinian's Digest, the most important part of the Emperor Justinian's great codification of the sixth century. Jurist named Pepo and Irnerius gave lectures on the Digest, and students flocked to them. By the middle of the twelfth century, a vigorous and thriving Bolognese law school attracted students from all over Europe.(11) At the same time, a jurist named Gratian (ca. 1140) compiled a systematically arranged textbook book of canon law, later called the Decretum, and began teaching in Bologna. These two branches of law, Roman and canon, quickly merged into a curriculum in which students studied both and received the degree of "Doctor utriusque iuris," Doctor of both laws. Most continental European law schools still confer this title on their graduates.(12) The system of jurisprudence created by this revival of legal studies was called the Ius commune.(13)

Gratian began his Decretum with a treatise on law and explored the meanings of the the words connected to the concept.(14) He and the twelfth-century jurists confronted the Latin word "ius" and began to understand its equivocal meanings. Tierney has focused on the teachers of canon law, the canonists, as being to first to develop a language that would express the idea that an individual had a right and shows how these twelfth-century jurists conceived of "ius" as a "liberty," "power," and "faculty" of individuals. They spoke of the "rights" of election, marriage, establishing laws, freedom, and a whole array of other usages. They created, in other words, a language of rights.

Not all rights are natural rights. Tierney then looks at the origins of natural rights, "iura naturalia." Gratian began his Decretum by dividing all law into two categories, natural law and usages (custom). Consequently, the canonists who used the Decretum in their classrooms for the next four centuries were forced to consider the equivocal meanings of "ius naturale." Gratian himself still lived in a thought world that "ius" primarily was understood as an objective law; however, by the second half of the twelfth century canonists were commonly using "ius" to mean "right."

The canonist Rufinus (ca. 1160) was a key figure in developing the language of natural rights. While commenting on Gratian's "ius naturale," he observed that "Natural 'ius' is a certain force instilled in every human creature by nature to do good and avoid the opposite" [p. 62]. This definition of "ius naturale" became a commonplace. The greatest canonist of the century, Huguccio, clearly perceived the idea of "natural right" in Gratian's texts. As Tierney explains:

In his more lenient moods, Huguccio did acknowledge that ius naturale could mean a rule of conduct, a "judgment of reason"; but his was a secondary, derivative meaning. For Huguccio, ius naturale in its primary sense was always an attribute of individual persons, "a force of the soul," associated with human rationality [p. 65].

The historical significance of this jurisprudential development is that scholars who have discovered the language of natural rights only in the philosophical writings of fourteenth and fifteenth century philosophers, most frequently William Ockham and Jean Gerson, have overlooked the importance of twelfth-century jurisprudence in shaping Western thought.(15)

The evolution of a language of rights is only part of the story of this first "context." By the year 1300, the jurists of the Ius commune had developed a sturdy language of rights and created a number of rights derived from natural law. During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedure as being rooted in natural, not positive, law. By placing these rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by the human prince. The prince had no jurisdiction over rights based on natural law; consequently these rights were inalienable.(16)

These natural rights (although the jurists were not systematic in so labeling them) are unexceptional. They fit easily into our modern framework of rights. We do not object to their being part of our tradition and of our cultural heritage. Tierney, however, focuses on a set of rights that were established in the twelfth and thirteenth centuries that do not fit quite so comfortably into the ethical and moral world of the modern, industrial state: the rights of the poor.

Gratian's Decretum contained a number of texts that contained trenchant admonitions to provide for the poor. Perhaps the most poignant of these passages was one taken from the writing of Rufinus of Aquileia (ca. 344-ca. 410) that masqueraded as the words of Ambrose in Gratian:(17)

No one may call his on what is common, of which if he takes more than he needs, it is taken with violence.

Rufinus' words echo across the centuries and are summed up by contemporary American bumper sticker seen not infrequently on the highways: "Poverty is Violence."

Rufinus' words do not directly lead to the idea that the poor have a right to subsistence, but the twelfth-century jurists had the vocabulary and the inclination to do so. Tierney illustrates the emergence of their thought brilliantly. Huguccio was, again, a key figure. He declared that by natural law we should keep what is necessary and distribute what is left to the needy. This is particularly true in times of famine and great need. Later jurists expanded Huguccio's thought and formulated a "right" of the poor to steal or to take food in times of need. As the foremost jurist of the thirteenth century, Hostiensis, put it: "One who suffers the need of hunger seems to use his right rather than to plan a theft" [pp. 72-73]. As Tierney points out, the natural rights of the poor to subsistence became a commonplace of medieval and early modern thought. At the end of the seventeenth century, John Locke could rehearse this idea that was by then five centuries old: "He has given his Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him when his pressing Want calls for it" [p. 76]. But Locke could also write that "Charity gives every man a Title to so much out of another's plenty, as will keep him from extream want."(18) Charity is not a right, and, as Tierney observes, "His work reflects both the old medieval tradition and the newer attitudes to poverty that were growing up in the seventeenth century" [p. 76 n. 110]. Economic rights continue to provoke sharp debate in domestic and international circles. Tierney has shown us again in this book as he had in his earlier work on Poor Law that economic rights are not foreign to Western jurisprudential and theological thought.

The jurists of the twelfth and thirteenth centuries had produced a language of rights and applied it to a wide array of social institutions and problems. The fourteenth century created another context for the evolution of the language of rights. A convergence of religious, political, and social events in the late thirteenth and early fourteenth centuries focus the discussion of rights on a concept particularly dear to modern American society: property. This period's preoccupation with property began innocently within the walls of the Franciscan Order. St. Francis of Assisi, who may well be called the Prince of Poverty in the Western tradition, had founded an order in which he demanded that his followers live a live of poverty, called apostolic poverty, in imitation of Christ. Shortly after Francis died Pope Gregory IX issued a clarification of Francis' rule for the Franciscans. The friars should own nothing but could only have the use of things that they needed. To make this doctrine logically coherent juridically, Pope Innocent IV (1245) declared that the Roman Church owned Franciscan property and granted the friars its use. The friars owned nothing. Pope Nicholas III (1279) defined the friars' property more carefully and introduced the term "ius utendi" (right of use) to describe the legal doctrine that governed Franciscan property. Nicholas also referred to the right of the poor to subsistence when he stated that the friars "were permitted, like everyone else, to take what they needed to sustain life in case of extreme necessity." Matters so stood until 1321, when Pope John XXII, for reasons that are obscure, revoked a provision of Nicholas' decree that forbade discussion of apostolic poverty and invited canonistic and theological debate on the issue. The Franciscans were incensed; the pope was adamant. Finally in 1323, John promulgated a bull in which he solemnly decreed that it was henceforth heretical to maintain that Christ and the apostles owned nothing and that they only had the "right of use" to the property they possessed. John's decree ignited a firestorm within and without the Franciscan order. For political reasons, the Emperor Louis of Bavaria took the side of the friars. More importantly, William of Ockham, the greatest, most creative philosopher of the fourteenth century, a Franciscan himself, joined the lists of this battle that would occupy the first half of the fourteenth century [pp. 94-97]. This unseemly dispute between the followers of St. Francis, the most humble of saints, and the papacy over rights of property has sparked the imaginations of historians and novelists. Most recently Umberto Eco used it as background for his internationally best-selling novel, The Name of the Rose.(19)

Eco incorporated Ockham into his novel too. The Englishman, William of Baskerville, who was the central character in the novel, was a conflation of Ockham and Sherlock Holmes. Although Ockham was English, his loyalties seem to have been thoroughly German. He fled from the papal court at Avignon in May, 1328, first to Pisa and then to Germany. He took up residence in Munich at the court of Ludwig of Bavaria where he became an extraordinary polemicist for imperial power against papal authority and for the Franciscans against Pope John XXII. By his death in 1347(?) he had produced a massive amount of political and of philosophical writings that has attracted the editorial and interpretive skills of English, French, German, and American scholars.

Although scholars have differed sharply over Ockham's philosophical and theological writings, many have concluded that he was the first thinker in the Western tradition to sketch out a doctrine of subjective rights. Tierney's chapters on Ockham contain an extraordinarily subtle and nuanced interpretation of Ockham's thought and form a substantial bridge between the thought of the twelfth and thirteenth-century jurists and sixteenth-century thinkers. By building this bridge, Tierney has illustrated how natural rights sprouted in the early modern period as indigenous plants with deeps roots in the European earth, not as exotic, new creations of a radically different society.

Tierney argues that three factors are crucial for understanding Ockham and his contribution to natural rights theories: the political situation, Ockham's moral theology, and his knowledge of juristic thought and language. Tierney points out that Ockham's passionate defense of the Franciscans was contingent. There is nothing in his earlier writings that prepared him or us for his becoming a superb and indefatigable polemicist. But Ockham defended the rights of the Friars in the language that he had inherited. Previous scholars, especially Georges de Lagarde and Michel Villey, have seen a necessary connection between Ockham's philosophical "nominalism" and his "voluntarist" position that exalted the will of the individual and diminished reason as a normative standard. Tierney argues, persuasively I think, that there is no necessary connection between his early moral theory and later political thought. Much more important for Ockham were older ideas that were taken from the thought-world of the jurists and theologians who preceded him. Whereas other scholars have emphasized Ockham's conception of the "will" of the God, the legislator, or the individual as being the key to Ockham's thought, Tierney stresses a norm that was pervasive in earlier juristic thought: "ratio" or reason.(20) He shows that Ockham's works of political theory were saturated with rights, but rights grounded on reason, not primarily on the power of the will. A "Voluntarist steeped in reason" might be a phrase that best describes Ockham's theory if subjective rights. The Franciscan's Breviloquium is "the first essentially rights-based treatise on political theory [p.185]." Ockham defended the rights of subjects against the tyranny of the pope, whose power was limited by these same rights. In the end, Ockham wrote, "to disregard common rights is a vice," a splendid slogan that all defenders of human rights today might place on their letterhead.(21) Although other interpretations of Ockham will be fashioned from the tortured complexity of his political tracts, these chapters on Ockham are stunning and by far the best treatment of Ockham's political thought that I have read.(22) They alone would have made the book worth publishing.

The bridge to the modern world of rights extends from the Frenchman, Jean Gerson in the fifteenth century to the Dutchman, Hugo Grotius in the seventeenth with a long span of Spanish jurists and theologians, the "Second Scholastics," in between. Jean Gerson struggled with the context of a schism in the Christian church. He defined rights in the context of a broad movement within the Church to restore unity, called the conciliar movement by modern historians. Tierney argues that:

at every point in the development of his rights theories, Gerson was motivated by his desire to achieve the central objective of the conciliar movement . . . his theory of conciliar supremacy itself rested in part on his defense of a divinely ordained right pertaining to individual prelates . . . <and to> an individual natural right of self-defense inhering in all persons. <His theories of rights were> transmitted by writers like Almain and De Soto and Vitoria and Suarez.

In a book that was published almost simultaneously with Tierney's, Brett has argued that he overemphasizes Gerson's connections to earlier juristic thought, but her arguments are not convincing, primarily because she misinterprets canonistic doctrines and because she does not place Gerson's thought in context.(23)

The last historical context that was crucial for the development of a tradition of "rights thinking" in the European tradition was the discovery of the New World and new peoples in the sixteenth century. If a number of Spanish thinkers had not been confronted by this new set of problems, "rights" could have withered on the vine. Certainly the sixteenth and seventeenth centuries were not great ages for human freedom in other areas. The doctrine of absolutism became acceptable coin of political discourse, religious toleration reached abysmal depths never before seen, censorship became a tool of European secular and religious regimes to control thought, witches were discovered in every crack and crevice, puritanism became the first and most important virtue that was added to the other seven: this list could be extended almost endlessly. Yet the discovery of lands populated with pagan peoples sparked a debate about their rights. Some of the best minds of the sixteenth century asked hard questions: Could native peoples have a just title to their lands? Could their lands be taken from them? Could they be enslaved? American courts have only begun to grapple with these issues in the past twenty-five years, and the general public has only just begun to recognize the great injustice done to the rights of native Americans.

Francisco de Vitoria studied at Paris and established a school at Salamanca during the first half of the fifteenth century. While Spanish conquistadors plundered the New World, Vitoria explored the moral and legal ramifications of their conquests. The key issue was dominium or lordship, but which could also mean "right." Could the American natives justly possess property and rightfully rule over their lands? The legal tradition was mixed. In the thirteenth century, two jurists took opposing sides. Pope Innocent IV, who wrote a massive commentary on canon law (ca. 1240) concluded that infidels had all the rights of dominium that Christians had. Their rights could only be taken away if they sinned against natural or divine law. The greatest canonist of the century, Hostiensis, concurred with Innocent in his early work but around 1270 changed his mind.(24) Perhaps swept away by the crusading enthusiasm of Pope Gregory X, he concluded that since the birth of Christ, just dominium existed only within the confines of the Christian church. No one outside the church could exercise dominium legitimately. During the fourteenth and fifteenth centuries, jurists embraced either Innocent's or Hostiensis' opinion but without, one feels, great passion, for the problem had no real immediacy.(25) For Vitoria, the question had meaning. Tierney illustrates how he used the jurisprudence of the Ius commune and theological doctrine to construct a lucid, clear argument for the natural rights of native Americans [pp. 265-272]. They did possess just dominium, and their lands could not be taken from them without cause.

Vitoria was a bloodless academic who dissected the meanings of rights in his laboratory. Bartolom de Las Casas labored among the Indians in the New World for twenty years. He saw the atrocities committed by the Spanish. He was, as Tierney has aptly put it, "inspired by a conviction that the Indians could be converted to Christianity only by peaceful persuasion without any violence or coercion" [p. 272]. He preached the brotherhood of man and the natural rights of all humans and argued vehemently that the Indians had a natural right to liberty, could exercise dominium, and must consent to any claim of Europeans to rule over them.

Tierney's last two chapters link the ideas of the medieval jurists and theologians with the modern world. The main conduit though which the concept of natural rights flowed was not another theologian, but the Dutch Protestant jurist, Hugo Grotius. In De jure belli, Grotius grappled with the meanings of right ("ius") in all of its multifarious meanings. The major theme of his book on the law of war was to prove that "just wars were fought to defend or assert rights or to punish violations of them" [p. 325]. He explored all the meanings of "ius" and defined it as "a moral quality of a person, enabling him to have or to do something justly." Grotius borrowed his definitions of right from the sixteenth-century Spanish theologians , but because of his Protestantism and that of his readers, he hid his sources in a thicket of classical quotations. But, hidden or not, Tierney unpacks Grotius' thought and lays out his debts to the panoply of earlier thinkers. Grotius has often been called the "Father of International Law." As Tierney has elegantly demonstrated, he might also be called the "Modern Father of Natural Rights," for Grotius influenced "all the major rights theorists of the next century, Selden and Hobbes and Locke in England, Pufendorf and Leibniz and Thomasius in Germany, Domat and Pothier in France" [p. 340].

Tierney's book is chocked full of insights for everyone interested in Human Rights. Rights arose in a non-democratic, Christian society that put a higher value on the community than on the individual. But yet the first, tentative articulation of rights focused on the individual. The canonists of the twelfth and thirteenth centuries embraced a variety of rights from social to economic. By the time that capitalism emerged as a force in European society, jurists and theologians had been writing about rights for several centuries. As Tierney puts it, "Western rights theories were not, in their origin, simply an expression of the more egotistical impulses of early modern capitalism" [p. 347]. In the current debate about rights we have been quick to recognize an individual's political rights but have often reacted to claims of economic rights as if they were alien to our tradition. Tierney has taught us that both conceptions of rights formed the backbone of the history of rights in the Western tradition. If we may learn anything from the history of rights, it may be that they have been a part of our discourse for eight centuries and should be taken seriously. If we attempt to predict the future of rights in our world, we should always remember that the history of rights has neither been predictable nor linear. This is especially true of the past 150 years. During this time, people entrusted the fostering and protection of human rights to the nation state. Rights were no longer thought of as being an expression of an individual's faculty, quality, or power but as the state's obligation to protect its citizens. Rights were preserved in constitutional documents that handed down rights to the subjects of the territorial state. The upshot has been that both here and abroad when states had to decide between the rights of individual and the "good" of the state during the twentieth century, the individual almost always lost, in both horrific and banal ways.

Tierney has written a brilliant, lucid, and compelling book that raises these issues and many more. It has many more riches than can be mined in the pages of this essay and will immediately become the standard account of the history of rights in the European tradition. The press has produced a handsome volume at a reasonable price, making it possible to use it as a textbook in university classes. Tierney on rights will inform our thinking about rights for many years to come. 

1. The subject of this essay is the book of Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625 (Emory University Studies in Law and Religion 5; Atlanta, Georgia: Scholars Press, 1997). 

2. The Random House Dictionary of the English Language: The Unabridged Edition (New York: 1967) 812. 

3. E.g. Black's Law Dictionary with Pronunciations, edd. Joseph R. Nolan and Jacqueline M. Nolan-Haley (6th Ed. St. Paul: 1990) pp. 864-865, gives a purely positivistic and institutional series of definitions and never mentions rights of individuals or groups. 

4. Bouvier's Law Dictionary and Concise Encyclopedia, ed. Francis Rawle (3rd Ed. Kansas City-St. Paul: 1914) Vol. 2, p. 1876. 

5. For an interesting example of this separation in a book devoted to rights, see John Finnis, Natural Law and Natural Rights (Oxford: 1982) 276-281, under the subtitle "A Definition of Law." 

6. "The History of the Idea of Human Rights," The Human Rights Reader, edd. Walter Laqueur and Barry Rubin (New York: 1979) 3. 

7. Medieval Poor Law (Berkeley-Los Angeles: 1959). 

8. On Ullmann, see Richard Helmholz, The Spirit of Classical Canon Law (The Spirit of the Laws; Athens, Georgia: 1996) 306; Tierney discusses Villey at length in the book under review, pp. 13-42. 

9. Knut Wolfgang Nrr, "Zur Frage des subjektiven Rechts in der mittelalterlichen Rechtswissenschaft," Festschrift fr Hermann Lange, ed. Dieter Medicus et al. (Stuttgart: 1992) and "Il contributo del diritto canonico al diritto privato europeo: Riflessioni dal punto di vista della identificazione del concetto di diritto," Diritto canonico e comparazione, ed. R. Bertolino et al. (Torino: 1992) 13-33. 

10. Another important contribution to this debate is the article of Charles J. Reid, Jr., "The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry," Boston College Law review 33 (1991) 37-92, who supports Tierney's position as does Annabel S. Brett, Liberty, Right, and Nature : Individual Rights in Later Scholastic Thought (Cambridge-New York: 1997). 

11. Ennio Cortese, Il rinascimento giuridico medievale (Roma: 1992) has written the most recent history of the rediscovery of Roman law in the eleventh century. 

12. On this legal revival see Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.-London: 1983), who has been responsible for bringing these developments to the attention of a large audience here and in Europe. See also Manlio Bellomo, The Common Legal Past of Europe 1000-1800, translated by Lydia G. Cochrane (Studies in Medieval and Early Modern Canon Law, 4; Washington, D.C. 1995); Ennio Cortese, Il rinascimento giuridico medievale (Rome: 1992); Jean Gaudemet, Les naissances du droit: Le temps, le pouvoir et la science au service du droit (Paris: 1997). 

13. Ius commune is the term used by jurists of the thirteenth to sixteenth centuries to describe the norms of Roman, canon, and feudal law. For a discussion of the meaning of Ius commune and its importance, see K. Pennington, "Learned Law, Droit Savant, Gelehrtes Recht: The Tyranny of a Concept," Rivista internazionale di diritto comune 5 (1994) 197-209 also published in the Syracuse Journal of International Law and Commerce 20 (1994) 205-215 

14. Gratian's treatise on law has been recently translated into English: Gratian, The Treatise on Laws (Decretum DD. 1-20) with the Ordinary Gloss, translated by Augustine Thompson and James Gordley, with an Introduction by Katherine Christiansen (Studies in Medieval and Early Modern Canon Law, 2; Washington, D.C.: 1993). 

15. Tierney's two most frequent foils are the French jurist, Michel Villey, and the English historian of political thought, Richard Tuck. For a different approach to the problem with similar reservations about earlier scholarship, see Brett, Liberty, Right and Nature 10-87. 

16. On marriage rights, see Reid, "Canonistic Contribution"; on procedural rights, see Kenneth Pennington, The Prince and the Law: Sovereignty and Rights in the Western Legal Tradition (Berkeley-Los Angeles: 1993) chapters 4, 5, and 6. 

17. Gratian, Decretum, ed. E. Friedberg (Leipzig: 1879, reprinted Graz: 1959) col. 171 (D.47 c.8): "Proprium nemo dicat quod est commune, quod plus quam sufficeret sumptum et violenter sumptum est." On the attribution of this text to Rufinus, see Rudolf Weigand, Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus (Mnchener Theologische Studien, Kanonistische Abteilung, 26; Munich: 1967) 308 n. 4. 

18. John Locke, Two Treaties on Government (1690) 1.42. 

19. Originally published as Il nome della rosa (Milan: 1980). 

20. See Ennio Cortese, La norma giuridica: Spunti teorici nel dititto comune classico (Ius nostrum 6; Milan: 1964, reprinted Milan: 1995) 2.241-293. 

21. Quoted by Tierney on p. 186 n.50. 

22. E.g. Brett, Liberty, Right and Nature 50-68, who read Tierney's chapters on Ockham before publication. 

23. Ibid. pp. 83-87, especially p. 86 n. 142, which is a indigestible description of canonistic ideas on natural law and rights. Her project seems to be to preserve Tuck's distinctions between the thought of the jurists and of Gerson described by Tierney on pp. 217-220. 

24. K. Pennington, "Henricus de Segusio (Hostiensis)," Popes, Canonists, and Texts 1150-1550 (Collected Studies Series 412; Aldershot: Variorum, 1993) article XVI, pp. 8-9. 

25. See James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World (The Middle Ages; Philadelphia: 1979) has examined the thought of the later jurists in detail.

 

del.icio.us  digg  newsvine  furl  Y!  smarking  segnalo