By Dr Jason Taliadoros. This article is part of our February 2013 focus on Religion and Human Rights.
To readers of this journal, and perhaps for most people, the terms “human rights” and “religion” on the one hand and “human rights” and “pre-modernity” on the other, could be described as oxymorons rather than as companions. I would suggest that most people perceive human rights as the sorts of things articulated in the 1948 United Nations’ Universal Declaration of Human Rights, such as Article 18 providing that everyone has the “right to freedom of thought, conscience and religion”. In this context, rights are articulated largely as secular, being devoid of religious language and references. Equally, the very existence of such a document as the Declaration implies that the kinds of rights recognised were not the kind that history necessarily granted, or granted adequately – but that such rights ought from now on be recognised and protected in light of the horrors of World War II and its aftermath.
But what I want to suggest is that human rights do have a pre-modern history. The modern notion of human rights that I have just described did not just spring into life fully-formed from the minds of the drafters of the UN Universal Declaration of Human Rights after the end of hostilities in the mid-1940s. In fact, I want to go further and explore the idea that these so-called “modern” notions of rights – and we need to be clear what that term means – have their roots in the writings of educated men who sought to teach and understand the doctrine and norms of the medieval Church.
These medieval “canon lawyers” lived in the period between about 1100 and 1215 CE, the high point of a period known as the Middle Ages: the “middle age” between the period of classical civilisation in the West (the Roman Empire) and the Renaissance in Italy and western Europe – the period spanning roughly a millennium from c. 400 to c. 1400 CE. This medieval period was characterised by the ubiquitous presence of the Roman Catholic Church, whose influence, hierarchical structures, and “canons” spread throughout the Mediterranean “lake” that had formerly been the Roman Empire. The canons, or rules, of the Church made up what we understand as “medieval canon law”.
I said above that we should try to be clear as to what we mean by “rights” or “human rights”. Writing as an historian of the history of ideas, I am aware that words change their meaning over time, depending on the particular historical context in which they exist and they are used. With this uncertainty in mind, I try to understand the essential characteristics of human rights as they are today, so that I know what to look for when searching for them in the past. After much reading on this subject, I take this essential element to be “subjective rights”. That is, the essential thing about human rights today, and what they may have looked like in the past, is that they existed in the individual “subject”. This means that the individual had the capacity to invoke that right, or to claim it. It was a subjective right in that the individual had an autonomous freedom to claim it, or not. This is in contrast to what writers on this topic refer to as “objective” rights – rights that everyone would inherently recognise as “just” or “right” (in the sense of correct or fitting), as objectively right to any reasonable or right-minded person. These objective rights, however, do not inhere or exist in the individual; rather they exist outside the subject or individual. For objective rights there is no right or faculty or capacity in the individual to assert or claim such rights; rather they are part of the universal laws of nature, or some other unchallengeable and unimpeachable authority outside of humankind.
Turning for a moment from this understanding of rights back to history, it is worth noting that Anglo-Australian and Anglo-American law is a discipline that relies on its history. The stories of laws past – their facts, their judgments, their principles – mark the law as it is understood to us today. It should not surprise us then that human rights has a history in precedent, not so much past cases and legislation, as past discussion of the notion of “rights” by human actors in our distant past.
The human actors that I want to focus on in this article are the medieval canon lawyers who were writing in the period after the 1150s. They were teachers of law, specifically of the treatise of the canon law of the Church that was known as the Decretum of Gratian. The Decretum was a collection of the “laws” of the Church (mostly extracts from church councils, the Bible, the commentaries on the Bible by the Church Fathers such as St Augustine and St Jerome, papal pronouncements and letters, and other such sources), organised around certain themes, and given a unique “twist” by certain hypothetical problem-style questions by its author at their beginning and further commentary tentatively suggesting their solution at the end. This structure invited debate and discussion, in the genre and mood of dialectic. Today, teachers of law adopt the same technique: they outline a hypothetical case, outline the applicable law (along with its sometimes inconsistent elements), and then invite an appropriate solution. In the generation after Gratian’s Decretum appeared, these teachers of law attempted to resolve the questions that Gratian had asked, as well as some of their own. They knew the answers lay somewhere in the vast collection of church canons in the Decretum—which they understood stated the eternal “truth”—it was just a matter of reconciling the different authorities within that text.
These commentators, therefore, set about making sense of Gratian’s text by applying to it their own understanding of the law and rights. In particular, in part one of his Decretum Gratian refers to “natural law” as the biblical precept of the Golden Rule “to do to others what you would have them do to you”. He also referred to Roman law notions of natural law, based on classical philosophical principles, to do “what is right” and “to give each their due”. We might say that his understanding of natural law was “objective”. But the commentators, when trying to make their students understand such concepts, also noted that others had interpreted “natural law” as not simply comprising what was mandatory and what was prohibited, but what was “permissible”. Something could be permissible at natural law, even if it was not strictly prohibited or specifically mandated. This was a sphere of autonomy or permissiveness in the individual, what we might consider as a “subjective” understanding of rights.
Further, this sphere of autonomy could be related to the more “objective” notion of rights that Gratian set out in the form of the Golden Rule. One medieval commentator, Master Rufinus, merged the two kinds of understandings of objective and subjective rights: “natural law”, he explains, could be understood as a “certain force instilled within humankind to do good and avoid the opposite”. Thus, the notion of “doing the right thing” was not just an objective notion divorced and separate from the individual, but part of, and inhering in, that individual.
This internal force within the individual to do good and avoid the opposite finds its manifestation in the permissions that lay between what was prohibited and what was mandatory.
It may appear somewhat of a stretch to say that these very fine semantic interpretations by canon lawyers of the later twelfth-century give rise to the first understandings in Western history of subjective rights that reside in the individual subject, identifiable with the human rights that sit in the 1948 Universal Declaration of Human Rights. But the evidence is there. It is, admittedly, slight. It does not exist in the clearly articulated and systematic form that we see today. But it is well to remember that we are dealing with documents from nearly a millennium ago, so we have today surviving only a fraction of those writings that existed at the time. Further, the writers we are referring to were not attempting to write a treatise on subjective rights; they only wanted to explain what Gratian meant by “natural law” to their students, and to others in their society more generally. So, the language they used reflects their need to explain concepts that they experienced in their everyday lives.
This twelfth-century period is called the “legal century” for not only did Gratian’s Decretum of canon law make its entrance in around 1140, but also Roman law – virtually lost to western Europe since the fall from prominence of Roman civilisation – was “re-discovered” and taught in northern Italy, while in England King Henry II instituted a series of programmatic changes in administering the laws of his realm that gave rise to the creation of a “common law” in England. A legal culture emerged that was to dominate politics and law-making in the West evermore.
From these palimpsest-like traces of subjective understandings of rights, writings on law and political thought emerged after the twelfth-century that arguably continued this tradition. For instance, the Magna Carta of 1215 recognised the freedom of the Church of England, analogising its freedom to that of an individual; the works by William of Ockham in the fourteenth century on property ownership among the monastic orders also refers to these subjective notions of rights. Many also see the links between Ockham and the medieval canonists subsequently in the works most often associated with the articulation of rights language in the early modern period: Hugo Grotius (1583-1694), Thomas Hobbes (1588-1679), and John Locke (1632-1704).
I have presented here a very particular understanding of rights in the pre-modern period, and their inextricable link to the church. The scholarship on this issue is still contested. But, if nothing else, what I hope to have shown is that the language and understanding of rights must be understood as a historical concept as well as a legal and political concept. Human rights have not emerged suddenly in the twentieth century. Rather they have a long lineage, not necessarily progressive or linear, but often interrupted and contingent, from the distant past.
Dr Jason Taliadoros is a Senior Lecturer at Deakin University School of Law; his main research interests are in legal history and the history of law and religion.