Notes on Right and Law

by Petrus Hispanus

1. The words right and law refer to related realities. Their meaning is derived from the Latin ius and lex. The more fundamental of these is ius, as regards both the nature of the virtue of justice generally, and the juridical order specifically. In English, this is obscured by the predominance of the words ‘law’ and ‘legal’ to designate that order and the framework within which ‘rights’ exist.

2. The first and foundational meaning of ius is as the object of justice, which is the habit of giving or rendering to each what is his own: ius suum cuique tribuere. Thus, ius is the suum, that which is owed, referring to the thing or action that is due to someone by virtue of any number of titles that sustain his claim to them.

3. The scope of the virtue of justice is universal, such that one can properly speak of ‘rights’ in any context where human (and indeed more than human) action is involved. Thus, one can properly speak of general or political justice, the ultimate object of which is the common good of the political community, as it refers to the rights that are owed to the community (or to its ruler, as appropriate) by virtue of the demands of that common good. These rights are therefore supreme in the order of justice, subject only to the rights due to God himself (by individuals and by the community as a whole), which are the object of the virtue of religion, a species of the virtue of justice. Below them, we find the rights owed between individual persons. We can therefore classify the orders of justice with regard to the dignity of the creditor: individuals, the political community, and God.

4. In the sphere of particular human relationships, the study of the object of justice has traditionally been the province of jurists, who have provided us with the most complete and precise notion of ‘right.’ For this reason, we now turn to their insights.

5. Before getting into the subject-matter itself, a historical point is in order regarding the use of these words. The connection between right and justice outlined above, and particularly between the juridical order and justice, which in classical thought is necessary, is denied by most modern jurists. Justice, for the moderns, is not the virtue of giving what is owed to others; that is, it is not concerned with action and thus with the good, but is at best either an ideal – a political “value” or ideological Omega point of sorts – or a mere procedure. It is telling, for example, to find in the rulings of entities like the International Court of Justice, when referring to the fundamental or non-negotiable aspects of what they call “natural justice,” that this includes little more than a schematic summary of due process.

6. In Roman law, ius classically referred to the (usually physical) object owed to someone. The paradigmatic case is property or ownership, where my right (ius) simply is the thing I claim as mine. There is no distinction between a right and its object, for what I am owed is precisely the object itself and not only a claim over it. In the case of rights less absolute than ownership, such as usufruct or use, my right is also the thing, but only to a certain extent or under certain conditions. The same thing happens with rights over persons, such as any form of debt, where what is owed is an action, such as the action of returning what has been loaned. (To ensure this right over persons did not devolve into servitude, the Romans sagely permitted compensation in case of breach, to be rendered in the form of pecunium i.e., money.)

7. The basis of rights is found in what can be called the distribution of things. If something is owed to someone as his own, it is only because he first received it from another. The only holder of absolute rights is therefore God, Who alone can claim not to have received what is His from any other. For this reason, ultimately all rights must derive in some fashion from the divine ordinances. However, in the vast majority of cases, this ultimate origin is mediated by secondary causes, which can be summarized in the two categories of (a) nature and (b) human will, from which much of the distribution of things can be discerned.

8. The discernment of the content of these distributions is the primary task of the jurists and is the proper object of jurisprudence. The fruit of this effort is the determination of what the jurists have called the titles of rights. The title of a right is what determines its scope, its content, its measure, and its effects.

9. Thus, some titles are found directly in nature, such as the title that gives a father the right to (claim as what is due to him) the obedience of his family. Others are found in acts of the human will, either as regards the care of private things or the care of the common good. An example of the first is the title by which a man grants someone the right to live in his house in exchange for periodic payments. An example of the second is the title by which the sovereign may exact a fine from a subject for violating a traffic regulation. Further, the titles derived from the human will can also be distilled from more diffuse expressions of that will as exercised over time and space, as in the form of customs or the common practices of the nations.

10. To summarize, we can say that the two sources of rights are nature and human will, which in turn devolve into the two sources of contract and human law. However, the care of private things is subject to the care of the common good, so rights derived from contract are also subject to human law. Therefore, we can say that rights are in reality derived from two basic sources: nature and human law. This is where the traditional distinction between natural and positive rights finds its origin.

11. However, the distinction between natural and positive rights is not helpful when used to mean that the two spheres are unrelated. In fact, many, if not most, positive rights derive their ultimate legitimacy from the order of nature. For example, the right of the sovereign to place a murderer in jail or execute him is not a merely positive right. It is more helpful to say that in most cases, although the existence of a right may be found in nature, its specifications may be due to human ordinance (such as the decision of when murder should be punishable by prison or by death). There are also many natural rights that are simply recognized in human law, such as the father’s right to patria potestas mentioned above.

12. The second meaning of ius refers by analogy to the order (or, as the moderns prefer to say, the system) constituted by the web of rights derived from the titles found in nature and in human law. Thus, according to their source, we can distinguish, as the Romans did, between a ius naturale (natural right), a ius civile or ius quiritum (civil right), and a ius gentium (the right of nations), each referring to the juridical orders constituted by the rights derived from nature, the ordinances of the city, and the common practices of the nations.

13. In all these cases, the foundational reality of ius remains the same: what is owed to each according to the distributions to be discerned in nature and in the ordinances of the human will. The main reason to distinguish between the various orders then is political, for while a Parthian or a Goth may be entitled to his rights derived from nature and from the common practices of the nations, he is certainly not entitled to the rights derived from the laws of the Roman People.

14. Thus, it is not that these are parallel orders, but, as noted above, they express merely the openness of the juridical to not only the product of the human will, but also to nature itself. They are all in fact a single order, having application at the same time in any given case. Only in this sense can the juridical order be a true order. Without reference to a criterion transcending the human will, any juridical system would be little more than a self-referential mechanism. A good illustration of this is that it is simply not possible to make sense of the basic concepts of juridical thought (such as, for example, the doctrine of the capacity of legal subjects, the requirements of valid consent, or the diverse mental states relevant in criminal law) without reference to nature.

15. The third meaning of ius designates the practical science by which the jurists have derived the various rights in question. Thus, the Romans also spoke of ius as the ars boni et aequi (the art of the good and the equitable) and as divinarum atque humanarum rerum notitia, iusti atque iniusti scientia (the knowledge of matters divine and human, and the science of what is just and unjust), referring to the work of the jurists itself and to the scientific synthesis they formulated for it. The science of right – jurisprudence – is the order of definitions, categories, arguments, and methods employed by the jurists to discern, in each particular case, what is owed to the parties involved – that is, their rights. To study ius is, thus, to study this science.

16. As a practical science, jurisprudence is not concerned exclusively with the rigor of formal and logical structure and argument. Its end is action, specifically just action. For this reason, it is dialectical and contingent. The basis for a jurisprudential determination is the contrasted validity and persuasiveness of the juridical arguments posed by the claimant and the respondent in a case, but it is always only probable, relative, and conditional, for the possibility remains ever open that once a determination is made in favor of one person, a third party may arrive with a better claim over the same thing. A juridical absurdity, therefore, is not necessarily only a logical absurdity; rather, it is an unjust determination. The modern confusion of juridical science with its method (as in Kelsen, for example) is thus erroneous, or at least incomplete, in so far as it closes it off from its end as a practical science, the just action.

17. These three meanings of ius or right were known to St. Thomas (II-II, qq. 57, 60), who synthesized them from the various sources the classical tradition had bequeathed, especially the sayings of the Roman jurists contained in the Digest of the Corpus Iuris Civilis.

18. Second, Scholasticism added two new meanings of ius not found in the classics or in St. Thomas, but which are not at odds with them. Francisco de Vitoria taught that a fourth analogical meaning of right is lex, that is, law. The reason is that the law is a primary source of right, for when we speak of natural rights or positive rights, we are in fact speaking of the rights to be derived from the titles found in the natural and positive laws. St. Thomas considered this argument in the context of his discussion of right as the object of justice (II-II, q. 57, a. 1, ad. 2) and taught that law can be called an expression of right, but not a species of it. Vitoria can therefore be considered to be already moving in a more or less legalistic understanding of right, even if he was not a legalist himself.

19. In turn, Francisco Suárez stated that ius also means analogically the faculty or power over something, in the sense that it is owed to someone that the exercise of that faculty or power over an object or person be respected. To have a right in this last sense means that one’s sphere of action over the object must not be violated. This meaning of right is the most widespread today, especially in English, where ‘right’ is hardly intelligible in the first three meanings mentioned above (or in Vitoria’s fourth). Perhaps the reason for this is that Suárez’s work was a principal source for the understanding of natural right in Locke, arguably (and lamentably) one of the most influential natural right thinkers of the modern age.

20. Be that as it may, Suárez’s notion is not incorrect, in so far as we understand (as he did) that it is analogical and derivative. I can only have the right to exercise a power over a thing or person if that thing or person is itself, in the first place, my right. In other words, right as a power or faculty is already virtually contained in the first, principal meaning of right sketched out above.

21. To conclude, a word about the meaning of lex. In Latin, as in most Romance languages, this word refers specifically to the ordinance of reason, issued by he who has care for the common good and promulgated. This refers to the generally binding decrees of those who have the legislative power: in Rome, the Roman People and later the emperors, today, a parliament, congress, or national assembly. A lex, therefore, is technically a specific form of public decree.

22. In English, the word ‘law’ may also be used with this meaning, but more commonly it means ius, understood in the second and third meanings summarized above, that is, as an order and as a science. Thus, one speaks of “obeying” or “applying the law,” and of “studying law,” or making a “legal” argument. As noted by Vitoria, the analogical use of the word lex to mean ius is not incorrect, but it can be confusing at best when it gets out of this limited scope and loses sight of the more foundational meanings. The reason for this is that the use of the word ‘law’ to designate right threatens to place too much emphasis on the voluntaristic and (in a secularized culture) merely positive aspects of the juridical. Ontologically, however, the heart of the juridical is its relationship with the virtue of justice, which is clearly expressed in the primary meaning of ius as that which is owed.