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Religion And Rights: A Medieval Perspective*

Published online by Cambridge University Press:  24 April 2015

Brian Tierney
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Extract

In this paper I want to present some background material about the interplay of religious concepts and rights theories during the Christian middle ages. We may note at the outset that there always were elements in the Judeo-Christian tradition that could be conducive to the growth of a doctrine of rights, especially the fundamental command to respect the person and property of our neighbor. Ronald Dworkin pointed out that the necessary basis of all other rights is an “abstract right to concern and respect taken to be fundamental and axiomatic.” The axiom entered the mainstream of medieval jurisprudence in the first words of Gratian's Decretum, the foundation of the whole subsequent structure of Western canon law. “The human race is ruled by two means, namely by natural law and usages. The law of nature is what is contained in the Law and the Gospel, by which each is ordered to do to another what he wants done to himself and is forbidden to do to another what he does not want done to himself.” Or in modern language, one might say, “Show concern and respect.”

Type
Articles
Information
Journal of Law and Religion , Volume 5 , Issue 1 , 1987 , pp. 163 - 175
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1987

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Footnotes

*

© 1988 The Catholic University of America

References

1. Dworkin, R., Taking Rights Seriously XV (1977)Google Scholar.

2. Gratian, , Concordance of Discordant Canons (Decretum) 1140, Dist 1Google Scholar.

3. This theme is explored in Professor Noonan's paper in the present volume: Noonan, , Principled or Pragmatic Foundations for the Freedom for Conscience, 5 J. L. and Relig. 203 (1987)CrossRefGoogle Scholar.

4. Rule of St. Benedict Ch. 33.

5. Morris, C., The Discovery of the Individual, 1060–1200 (1972)Google Scholar.

6. Berman, H., Law and Revolution: The Formation of the Western Legal Tradition (1983)Google Scholar.

7. Strauss, L., Natural Right and History (1950)Google Scholar. Strauss leaps from Plato and Aristotle to Hooker and Hobbes with only the briefest glance at Thomas Aquinas on the way. He does not consider medieval jurisprudence at all.

8. I De Legibus, § 2.5.

9. MacPherson, C.B., The Political Theory of Possessive Individualism: Hobbes to Locke (1962)Google Scholar.

10. Villey, M., La Formation de la Penseé Juridique Moderne (1968)Google Scholar. Idem, La genègese du droit subjectif chez Guillaume d'Occam, Archives de Philosophie de Droit 97 (1964).

11. For some examples of such usages see Weigand, R., Die Naturrechtslehre Der Legisten und Dekretisten von Irnerius bis Accursius 145, 197, 209, 314 (1967)Google Scholar.

12. Id. at 215. A more detailed appraisal of Villey's views is presented in my paper, Tierney, Ockham, Villey, and the Origin of Rights Theories, to appear in the forthcoming Festschrift for Harold Berman.

13. For a brief introduction to these texts and the whole problem of medieval church-state relations see Tierney, B., Crisis of Church and State 1050–1300 (1964)Google Scholar [hereinafter Tierney].

14. T. Hobbes, Leviathan, 29.

15. 2 Id. at 21.

16. 2 Id. at 21, 26.

17. Manegold of Lauterbach, in Tierney, supra note 13 at 78-80.

18. Tierney supra note13, at 78-80, 206-210.

19. Tierney, B., Religion, Law and the Growth of Constitutional Thought 37 (1982)Google Scholar.

20. Pollock, and Maitland, , The History of English Law 495 (2d ed. 1898)Google Scholar. “Now the idea of the Church as the mystical body of Christ has had an important influence on the growth of the law of corporations.…”

21. Kantorowicz, E., The King's Two Bodies (1957)Google Scholar.

22. Pollock & Maitland, supra note 20, at 507.

23. Harding, , Political Liberty in the Middle Ages, Speculum 442 (07 1980)Google Scholar.

24. Holt, J.C., Magna Carta 48–49 (1965)Google Scholar.

25. On the text of Ricardus see Tierney, B., Religion 22 (1982)Google Scholar. The phrase communia totius terrae actually occurs in Magna Carta Clause 61. Holt renders this as “the commune of the whole land” in accordance with his own understanding of the Charter (p. 335). But communia is usually translated more neutrally as “community.” See, e.g Stephenson, and Marcham, , Sources of English Constitutional History 125 (1937)Google Scholar, “… the community of the entire country …,”

26. Norgate, K., John Lackland 234 (1922)Google Scholar.

27. The best introduction is still Powicke, F.M., Stephen Langton (1928)Google Scholar.

28. Quoted in Baldwin, J.W., Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle 111 (1970)Google Scholar. “Just as it is for the clergy to elect a bishop, as it is for all the faithful of the realm … to establish for themselves a ruler who may guard the rights of layfolk and the peace of the church.”

29. Duby, G., The Three Orders: Feudal Society Imagined 320 (1978)Google Scholar.

30. Thompson, F., Magna Carta: Its Role in the Making of the English Constitution 69 (1948)Google Scholar.