Ius naturale: The Foundations of Modern Human Rights Discourse in the Natural Legalism of Thomas Aquinas Part III
This concluding installment of ‘Ius naturale’ some of the contemporary import of Aquinas’ precursor ideas to modern concepts of human rights, as well as the importance both of remembering Aquinas’ place in the history of human rights discourse and the implications of his important place in that tradition.
While Thomas Aquinas was far from a prophet of modern concepts of human rights his influence over the modern tradition of human rights discourse is great. His natural law-based theories of human dignity founded in rational agency, human equality, just legislative authority, and tyrannicide (or, more broadly applied, a species of popular sovereignty and/or rule by the consent of the governed) presage some of the most important legal principle today recognised as human rights. Aside from historical interest there is good reason to remember the important place Aquinas holds in the history of human rights discourse. Since the formal codifications of human rights in the Universal Declaration of Human Rights and the constitutions of most Western liberal democracies ethical discourse has shifted, both in terms of terminology and underlying philosophical principles, in such a way the very concept of rights is at risk of being unmoored and our ability to discuss rights suffers from a loss of the ideas behind their theoretical formulations. Recalling the historical philosophical-theological tradition that lies behind modern rights discourse and the assumptions and paradigms that characterised it will allow us to understand the ideas that undergird the concept of human rights and allow us to rework that concept for the discourse and philosophical assumptions and paradigms of today.
Perhaps the most important issue to remember, and which is inescapable when the Thomistic background of human rights discourse is examined, is that rights are established upon a foundation of realism. The ontology is Thomism is one of moderate realism, meaning that he holds to the existence of universal essences which subsist entirely in individual instantiations. Therefore when he discusses human beings he has in mind the individuations of a universal human nature and it is to this nature that concepts such as rights may be applied. The dominance of realism was maintained by Aquinas’ two most important interpreters (for the present discussion), Francisco de Vitoria and Francisco Suárez, but would be lost when Hugo Grotius, a Reformed thinker and a nominalist, laid the foundations of modern international law and rights theory. Despite the post-Grotian dominance of nominalism and its complete adoption by the Western mainstream in the present day no nominalistic ground for the extent of humanity qua subject of human rights exists, a strongly problematising reality for contemporary human rights discourse. The Thomistic assumption of rational agency is deeply flawed, as evinced both by the application of this principle to argue for the enslavement of other human beings and (not unrelated) because it allows that peculiar individuals who could be demonstrated not to possess rational agency, such as the very young, the senile, or the intellectually handicapped, could be denied human rights.
The issue of rational agency raises another problematic of human rights discourse today. Even if a common definition of ‘human’ is found, or even the question set aside, modern human discourse lacks a coherent reason for human rights themselves. The Thomistic ground for rights, as previously stated, is the inherent dignity that comes of being a rational agent. Hugo Grotius, upon whose work contemporary legal thinking is more directly based and who operated within the Thomistic tradition through the medial figure of Francisco Suárez, grounded human rights in the social contract which proceeds from humanity’s (notice again this problematic concept) social nature. More particularly, human beings derive legal rights from the promulgation of laws meant to prevent injustice. That Grotius’ understanding of the ground of human rights is closer to our own is plain to see but he, like Thomas, proceeds from assumptions which are no longer held. Grotius saw the social contract as the normativising reality upon which human rights could be based. Because, says Grotius, human beings are naturally sociable and naturally form communities of law which are built upon a contract which delineate obligations and rights of contractors to and from one another, it is morally right that humans should exist of communities of law and right. Once again there is fundamental assumption about human nature that is operative. Though Grotius conceived of humanity as such in manner fundamentally different than did Aquinas, as a result of the former’s nominalism, he based his contractarian theory upon a common human nature which forms the basis of a normative ethic.
The final key issue for human rights discourse today which an examination of that discourse’s Thomistic heritage makes clear is that rights are based fundamentally upon the assumption of moral realism. Aquinas simply assumed that there exists an objective moral order which he, as a rational being, had the power to discern and apply to his own life. The importance of this assumption, and that it is an assumption, cannot be overstated. Today the opposite assumption, that there exists no single, objective moral order from ‘the good,’ ‘the right,’ or ‘the wrong’ can be discerned, dominates. Instead a species of relativism, in which the differing values and ethical positions of different cultures and societies are deemed equally valid and moral discourse is reduced either to the trump card appeal to ‘culture’ or conflict of ‘values,’ prevails. It is essentially impossible to advance a theory of universal human rights so long as such an assumption holds sway, since any polity that would deny any combination of human rights, or indeed all of them, could simply respond that such rights do not form part of their culture and this would constitute either an essentially insuperable defence or evidence of inferior ‘values.’ Human are necessarily grounded in the belief that there exist a ‘right’ and a ‘wrong,’ or at least a ‘good’ and a ‘bad,’ which our laws and practices can approximate. The assumption of moral realism pervaded throughout the Thomistic rights tradition, including in major figures such as Vitoria, Suárez, and Grotius, and its abandonment today is a tectonic shift in the modes of ethical and legal discourse within any discussion of rights takes place.
This fundamental discontinuity between the philosophical settings of human rights discourse today and its medieval foundations examined and the negative implications of these realities for human rights themselves stated, it is now possible to propose the beginnings of a solution to the problems assailing human rights discourse to be found their medieval heritage. The basing of human rights and dignity upon a common human nature not subject to the laws of a given polity lends a strength to the Thomistic ‘rights’ language which is lacking in rights discourse today. Aquinas and modern-day proponents of human rights share an anti-positivist stance, a rejection of the idea that the positive laws of a given polity are the basis of the rights and responsibilities of the citizens of that polity. The strength of the Thomistic position and the weakness of so much contemporary rights discourse is that Aquinas can posit another ground for those rights and responsibilities. Rights, within a Thomistic conception, proceed from the natural law, which is prior to any positive legal code and to which all positives laws are subject for their rightness and justice. Any positive law which violates the principles of the natural law is, says Aquinas, not truly possessing of the character of law but is rather a perversion of law. Human rights proceed from the natural law because they necessary implicates of the fundamental dignity of the human being as rational agent; they are not granted and cannot be rescinded by any legislator. Indeed, a legislator who attempted to do so would make of him or herself a tyrant and absolve those theoretically subject to such a law of any moral obligation to obey or uphold it. The rights-granting principle of the Thomistic natural law is, as previously mentioned, the rational agency which human beings possess. The possession of such agency bestows a dignity which implies certain inalienable rights which legislators are morally bound to respect and uphold. Lacking any such coherent ground for the human rights which they advance, modern rights advocates can, at best, appeal to ‘values’ or other expressions of emotivism to argue for the need for those whose governments do not recognise their rights or grant them rights to have their human rights respected. Despite the already-mentioned problematic of dignity proceeding only from rational agency, a more Thomistic rights language, one which grounds human rights in universal laws superior to the laws of any state or polity, provides an inalienable ground for the common human dignity from which human rights, the ability to deny which falls beyond the purview of any legislator, proceed.
A return to the assumptions and methods which predominated when human rights discourse was in its infancy offers some hope of re-grounding the tradition and returning to it the sure foundation which it once possessed. Of course the Thomistic element of that heritage is not its summus and the other formative influences, such as Ockham, Grotius, Locke, Kant, and even more remote precursors such as Cicero and Aristotle, ought also be turned to in the attempt reformulate the tradition in order to respond to and better operate within the assumptions and discursive methods of the present day. Aquinas, however, looms particularly large in the history of human rights discourse and a firmer understanding of the debt which the tradition owes him is an element of understanding that tradition well enough to engage with it critically, identity what of it is essential and what merely incidental historical accretions, and begin to engage that essential core with the political, economic, moral, and discursive realities of today as well as those which will develop in the future. Unless this ‘back-to-basics’ of human rights discourse takes place the tradition risks further unmooring and further distancing from the world in which it must operate and those rights themselves may cease to be defensible and simply disappear, relics of a bygone era no longer suited to the world of today.
 Cf. De esse et essential 3 for Aquinas’ treatment of universal human nature and individual instantiations of it
 Cf. Schneewind, J.B., The Invention of Autonomy: A History of Modern Philosophy (New York: Cambridge University Press, 1998), esp ch 4, on the place of Suárez and Grotius in the history of modern law and rights theory.
 Finnis, John, Aquinas: Moral, Political, and Legal Theory (New York: Oxford University Press, 1998), 176.
 Schneewind, The Invention of Autonomy, 71-72.
 Schneewind, The Invention of Autonomy, 78-79.
 ST I-II.95.2