In one breath, a blogger argues that: "Liberty and the Rights of Englishmen, are concepts that belong solely to the posterity of the American Founding Fathers." Yet months previously, the blogger actually betrays how the English colonials would disagree with him, stating that the rebellious English colonials "believed it was universal. No one else did. Or does."
This is quite wrong. The blogger does not know his history. As Charles Coulombe pointed out in the last part of this series, the Rights of Englishmen derived from English Common Law--a medieval Catholic (Catholic, meaning universal) concept. And, in fact, the English Common Law is but one place where the concept of natural human rights took form. The realization of human rights had, in fact, taken bloom across all of Europe in several different places.
Such rights are not a concept held exclusively by English Whig oligarchs. Nor is it a concept held exclusively by English barons who force their king to sign a contract by swordpoint (as we see with the signing of the Magna Carta, a later installment for this series).
Many historians, such as Professor Brian Tierney of Cornell University, acknowledge that the idea of a natural human right existed far back into medieval times in the form of the ius commune, a combination of Roman and canon law which guided legal practice up to the time Columbus sailed to the Americas. In his lecture, Natural Rights: Before and After Columbus, Brian Tierney reveals that natural rights did not enter political life "with a clatter of drums and trumpets of the American Declaration of Independence or the French Declaration of the Rights of Man." Rather, as Tierney states, "this central concept of Western political theory first grew into existence almost imperceptibly in the obscure glossaries of medieval jurists." That would be Catholic jurists.
The idea of an individual's rights did not explode onto the scene. They were not a fabulous new invention of the late 1700s. John Adams, Thomas Jefferson, and Benjamin Franklin did not invent them. Human rights are a part of natural law. Natural law is what enables the idea of a right order of government on earth, and this is all a concept held in the medieval ius commune.
These rights we have under natural law are not there in order to put "choice" and "the sacredness of human life" on a pedestal. Instead, the reason these rights exist is to vindicate and promote God's plan for the world. Human bodies are temples. The human being is a special creation in the image of God. His justice through our lives is all a part of His plan for creation.
The historical idea of our natural rights lies in the jurisprudential foundation of Europe. For example, in the 1500s, Bartolome de Las Casas repeatedly referred to the natural rights of the American Indians. He was able to achieve this by interweaving "the teachings of Aquinas on natural law with his juridical arguments for natural rights." In fact, as Tierney demonstrates, weaving law and philosophy together was necessary in order to understand the concept of rights.
Before the 1200s, the idea of rights as we understand them did not even bloom in Europe--due to the fact there really was no terminology for such discussions. The idea of natural rights was there, but parts of such ideas resided in another school of thought--philosophy. And through this interchange between law and philosophy, Las Casas was able to discuss how American Indians had the right to liberty, property, self-defense, and to choose their own ruler. (If the Puritan English colonials agreed with any of this, they certainly did not exercise it with the Indians.)
Men such as Las Casas and William of Ockam (1287-1347) had to draw upon the canonists in order to develop their thoughts. In the case of the latter, though it is true he was an Englishman, his writings drew upon the older traditions of the Church.
"He had an interesting doctrine of contingent natural rights, related to basic human needs but varying according to the conditions of particular societies. It is a notion that might be applied to some modern problems of cultural relativism. Ockham also turned the old concept of Christian freedom found in St. Paul's epistles into an argument for natural rights. Even the pope, he wrote, could not injure 'the rights and liberties conceded by God and nature.' The point is that in all this Ockham was not embarking on a 'semantic revolution.' he was carrying on an established tradition of juridical discourse. In his political works he hardly ever referred to his nominalist philosophy, but he constantly quoted earlier legal sources. A French scholar, Georges de Lagarde, once counted the citations in one book of Ockham's Dialogus. He found 3 references to Thomas Aquinas, 12 to church fathers, 65 to Scripture, and 313 references to canon law. If you want to reflect on jurisprudence sublimating into political philosophy, you can see it taking place on the pages of Ockham's political writings."
Ockham's inspiration was a controversy that surrounded the Franciscan Order. For a time, the Franciscans defended their own order's understanding of evangelical poverty as a system without rights. They loved poverty. Their order claimed to abandon all ownership and rights to property. However, this was in contradiction to pope John XXII, who argued "that there could be no licit use of anything without a right of using." This idea put a snag in the plans of the Franciscans, and in time, the Franciscans accepted the pope's ruling.
As early as 1250, the idea of property rights steming from natural law--even among infidels--was put forth by pope Innocent IV, a canon lawyer. In 1240, he wrote a legal paper discussing the rights of non-Christians, and he rhetorically asked whether it was "licit to invade a land that infidels possess or which belongs to them?" He concluded the answer to be a resounding yes. Such invasions would be just wars fought for the defense of Christians and potentially for the reconquest of Christian lands.
Before the 1200s, legal language was not sophisticated enough to allow for the expression of human rights. Before that time in Europe, if the idea was there, the concept of rights existed within law, philosophy, and of course, the Catholic Faith. The synthesis of rights as an idea unto itself came about in the 1100s.
"Historians now see the twelfth century as a major turning point in Western history. The demographic curve turned upward. New networks of commerce grew up. This was the age of the first great gothic cathedrals and the first universities. In religious thought there was a new emphasis on the individual human person--on individual intention in assessing guilt, on individual consent in marriage, on individual scrutiny of conscience. Above all the twelfth century was an age of legal renaissance. First came the recovery of the whole corpus of ancient Roman law, then (about 1140) an immensely influential codification of the canon law of the Church in the work known as Gratian's Decretum. At the same time in England the first seminal principles of Anglo-American common law were taking shape. Then generations of great jurists in the universities of Europe worked to apply the old texts they had recovered to the new life of their age. Maitland wrote that there was never a time when so much of the sum total of the human intellect was devoted to the study of law as in the twelfth century. And of course in the every day life of the time there was an intense concern for rights and liberties. Bishops and barons asserted their rights against kings. All over Europe, merchants and craftsmen in the newly emerging communes sometimes bought their rights from overlords, and sometimes fought for them."The universal religion influenced the West, and it influenced the evolution of human rights. The Holy Faith was fresh in the daily minds of a Christianized European people, including its jurists.
Sir Frederick Pollock echoes this in his 1898 work, The History of English Law Before the Time of Edward, in which he discusses the origins of the English legal system:
It was a wonderful system. The whole of western Europe was subject to the jurisdiction of one tribunal of last resort, the Roman curia. Appeals to it were encouraged by all manner of means, appeals at almost every stage of almost every proceeding. But the pope was far more than the president of a court of appeal. Very frequently the courts Christian which did justice in England were courts which were acting under his supervision and carrying out his written instructions. A very large part, and by far the most permanently important part, of the ecclesiastical litigation that went on in this country, came before English prelates who were sitting, not as English prelates, not as “judges ordinary,” but as mere delegates of the pope commissioned to hear and determine this or that particular case. When once the supreme pontiff has obtained seisin of a cause, that cause proceeds under his directions. He bids two or three English prelates try it, but he also tells them by what rules they are to try it, he teaches them, corrects them, reproves them, expresses in a fatherly way his surprise at their ignorance of law.Indeed, the Western progenitors of the idea of human rights most definitely believed these ideas to be as universal as the universal Church they attended every Sunday and on holy days. They did not believe the right to life, liberty, and property remained exclusively with one ethnicity--the English. This is wishful thinking.
To believe that jurists and philosophers of our Western past denied this is akin to believing that the greatness of Western Civilization owes nothing to the Catholic Church of Christendom. Such rights are universal and are to be recognized by all people throughout the Earth--not just the posterity of colonial Whig oligarchs.