The Thomist 73 (2009): 169-239
CONSCIENCE, FREEDOM, RIGHTS:
IDOLS OF THE ENLIGHTENMENT RELIGION
JOHN R. T. LAMONT
Catholic Institute of Sydney
Strathfield, NSW, Australia
T
HE UNDERLYING THEME of this article is the teaching
of the Catholic Church on religious liberty. In order to
address this much-contested subject one must first consider
other subjects that are at least as important: the concepts of
conscience, freedom, and rights. In this article, I will contrast St.
Thomas's understanding of these concepts with the understandings of the Counter-Reformation and the Enlightenment,
and will argue that St. Thomas's understanding is the one that
should be adopted. In addition to providing a necessary preliminary to an examination of Catholic teaching on religious
liberty, this discussion will put us in a position to understand the
state of the Church as a whole, and the crisis she has been
undergoing not simply since the Second Vatican Council, but
since the Enlightenment.
Examination of these concepts will have to be carried out at
some length. This is because I will be arguing for theses in the line
of the nouvelle theologie, claiming that the nominalist and
Counter-Reformation understandings of these concepts are wrong
and damaging, and that St. Thomas's understanding of them
should be accepted instead. Because St. Thomas's views on these
subjects are still often misunderstood, and the opposing views
remain well entrenched, the arguments for St. Thomas's position
need to be substantial.
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JOHN R. T. LAMONT
I. CONSCIENCE VS. PRUDENCE
A) Conscience in St. Thomas
Discussions of conscience usually proceed on the assumption
that its basic features are known and not controverted, or at least
not controverted by morally decent and sincere people. Frequent
rhetorical appeals to the rights of conscience and the inviolability
of conscience rest on this assumption. In fact, however, this
assumption is mistaken. The understanding of conscience to
which such rhetoric appeals is not an evident notion that arises
from universal human experience, but is rather the product of a
particular philosophical and theological development. This
development, together with the notion of human freedom with
which it is connected, began to be elaborated in the Middle Ages,
and was brought to completion by the theologians of the CounterReformation. It is radically different from the notion of
conscience held by St. Thomas, and the understanding of freedom
that it involves is radically different from St. Thomas's
understanding of freedom. To attain the degree of clarity that we
require about St. Thomas's understanding and the CounterReformation understanding, it will be necessary to put them in the
contexts of the accounts of human action of which they are parts.
This is particularly necessary in St. Thomas's case, in order to
remove the layers of misinterpretation that have been imposed on
his views by commentators trying to force his thought into the
mold of Counter-Reformation moral theology.
Conscience, according to St. Thomas, is not a power or a
habitus, but an act (STh I, q. 79, a. 13; De Verit., q. 17, a. 1}; it is
the act of making a speculative judgment about the goodness or
badness of a particular act of the will. The making of this
speculative judgment need not occur in the course of deliberating
about whether or not to do the act to which the judgment applies;
it can be made about actions in the past. This understanding of
conscience is at odds with the notions that conscience is an
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authority, is "the most immediate giver of moral imperatives," 1 or
is the proximate rule of human acts, with the divine law being the
remote rule. 2 The act of making a judgment of conscience does
not as such give rise to moral permission or a moral imperative to
act, nor does it contain the power to motivate an action. It is the
reasons assented to in the judgment that perform these functions,
rather than the act of making the judgment. As Herbert McCabe
says, "it is not the strength and sincerity of my conviction that the
use of nuclear weapons must always be evil, but rather the
grounds for this conviction, that make it morally right for me to
refuse cooperation with any such use. " 3 On St. Thomas's view
there is nothing that makes a judgment of conscience closer to an
action than the divine law. It is misleading to think of conscience
in his sense as authoritative or imperative, because the basic act of
conscience is a passive one, in the sense that all judgments about
reality are passive: they are formed in response to reasons and
evidence. Moreover, when the content of a judgment of conscience is known to be true, it is misleading to speak of the
reasons contained in such a judgment being the motivation for
action, rather than the realities this judgment is about being the
motivation. Saint Thomas holds that our knowledge of propositions does not stop short at the propositions known, but attains
the realities themselves that the propositions are about. For such
judgments, it is thus the good itself that is known that ultimately
motivates action.
This passivity exists even in the case of an erroneous judgment
of conscience. Saint Thomas holds that such a judgment must be
obeyed, but this is not (contrary to what many of his interpreters
say) simply because there is something about conscience as such
that demands obedience. It is instead because built in to the
notion of making a judgment of conscience-whether erroneous
or not-is the fact that the person believes something about the
act being judged that makes it a good or bad act, even if the belief
1 Karl Rahner, "The Appeal to Conscience," in idem, Nature and Grace, trans. Dinah
Wharton (New York: Sheed & Ward, 1964), 49.
2 St. Alphonsus Liguori, Theologia Moralis, new ed. (Lyon, 1829), lib. 1, tract. 1, p. 2.
3 Herbert McCabe, "Aquinas and Good Sense," New Blackfriars 67 (1986): 421-22.
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JOHN R. T. LAMONT
is something as general as "this act is commanded by God." It is
this reason, as believed to be true, that confers authority on the
judgment of an erroneous conscience. Ascribing moral authority
to the judgment of conscience as such is like giving the act of
calculating the answer to a statistical problem a probabilistic value
in itself, which raises the probability of the conclusion arrived at
in the calculation beyond the probability conferred on the
conclusion by the other evidence that the act of calculation takes
into account.
Because there are no limits in principle to the kinds of
knowledge that may be needed to establish that particular actions
are good or bad-a doctor will need scientific knowledge, a civil
engineer will need mathematical knowledge, and so onconscience in St. Thomas's sense is not the product of any
particular cognitive power. This was denied by some later theologians, who distinguished between actual conscience-conscience
as St. Thomas defines it-and habitual conscience, which they
conceived of as the power to form judgments of conscience. They
situated this habitual conscience in St. Thomas's system by
identifying it with his notion of synderesis. 4
This glaring misinterpretation is an interesting example of the
force of preconceived ideas. 5 Saint Thomas makes it clear that
synderesis is the grasp of the first principles of practical reason.6
This identification is explicitly made by Philippe Delhaye, who speaks of "habitual
conscience or synderesis" (P. Delhaye, La conscience morale du chretien [Tournai: Desclee,
1964], 96). A similar identification is made in M. Zalba, Theologiae Moralis Compendium I
(Madrid: Biblioteca de Autories Cristianos, 1958), 356.
5 It should be acknowledged that the identification of the principles grasped by synderesis
with moral principles is suggested by St. Jerome's account of the term in his commentary on
Ezekiel (translated in Timothy C. Potts, Conscience in medieval philosophy [Cambridge:
Cambridge Univeresity Press, 1980], 79-80) and by the account in Peter Lombard (see ibid.,
93), and is explicitly advanced by Philip the Chancellor (ibid., 100), St. Bonaventure (ibid.,
116), Albert the Great (see Eric D' Arey, Conscience and Its Right to Freedom [London: Sheed
and Ward, 1961], 31-33), and others. This fact makes St. Thomas's departure from this
consensus a striking innovation.
6 See STh I, q. 79, a. 12. Although the accounts of practical reason given by Germain
Grisez and John Finnis differ radically from that of St. Thomas, they do underline that the
first principles of practical reason in St. Thomas are not moral principles. This was a
fundamental advance.
4
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These principles are made up of the very first principle of
practical reason, which is that good is to be done and evil to be
avoided (STh 1-11, q. 94, a. 2), and the principles that specify basic
goods to which humans have a natural inclination, such as life,
reproduction, knowledge, and social existence (cf. ibid.). But
these principles are not only the principles of right action, or even
of action that is believed (whether innocently or culpably) to be
right, but of all rational action whatsoever, whether or not it is
good or approved by the judgment of conscience. That is what it
means to say that they are the first principles of practical reason.
What makes them the principles of all rational action is that all
such action is motivated by the good as understood by the reason
("omne enim agens agit propter finem, qui habet ratione bani"). 7
The subsidiary principles of synderesis specify in a basic way what
the forms of good for humans are, and the first principle conveys
what good as such is. Without a grasp of these principles, there
could be no rational action. The subsidiary principles determine
what morally bad actions are, because such actions are simply
actions that are not good in every respect, and the principles
determine what it is to be a good human action. These principles
are not proscriptions of such actions.
This explains why St. Thomas holds that no one errs
concerning these subsidiary principles (STh I, q. 79, a. 12, ad 3).
If these principles were basic moral principles like "do not steal,"
"do not murder," and so on, it would be obviously false to claim
that no one disbelieves them. But in St. Thomas's conception, a
person who fails to grasp one of the subsidiary principles would
not be a person who would fail to understand that acts that violate
the good referred to in them would be wrong. He would be a
person who could not do an act that is motivated by the good
referred to in that principle-whether it be life, or reproduction,
or social existence-because he would not understand that these
features of human life are worth pursuing. The inability to grasp
any of these basic forms of good as motivations for action would
make someone irrational, and it is thus true that any rational
7 STh I-II, q. 94, a. 2 (Madrid ed., 610).
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JOHN R. T. LAMONT
person will grasp these principles. (This grasp, because it is a
feature of practical rather than theoretical reason, need not
involve philosophical acceptance of these principles as principles
of action-Kant and Mill were not practically irrational as a result
of holding views on action and morality that were incompatible
with St. Thomas's account of synderesis. But it does require the
ability to act in pursuit of these goods as such.)
The idea that synderesis in St. Thomas can be equated with
habitual conscience is an erroneous assimilation of his views to the
position of later theologians-to the position of moralities of
conscience, a school of thought that is more fully discussed below.
One mistake in this assimilation is the one just noted, that of
holding that only morally good actions can be motivated by the
principles grasped by synderesis. This mistake necessarily follows
from a further one, which is a wrong understanding of what St.
Thomas conceives these principles to be. In moralities of
conscience, the principles grasped by synderesis are understood in
a way that conforms to the definition of synderesis as "habitual
conscience." They possess two features that distinguish them from
these principles as St. Thomas understands them: they have
imperative force, and the fact that an action is done out of
obedience to them makes that action morally good.
For St. Thomas, however, it is only the very first principle of
practical reason-"good is to be done and evil is to be avoided"that moves the will, because it is this principle that commands the
pursuit of the ultimate end of man, which is in turn the motive for
all rational action (cf. STh 1-11, q. 1, aa. 3 and 6). All other goods
are sought for the sake of the ultimate end, which is specified by
the goal of human nature as such. This notion can be illustrated
by an analogy with a car. It might be good for a car of a given
make to operate at between 1500 and 4500 rpms. This way of
operating will, however, only be good on account of the ultimate
end of the car. If the car had a different end, such as emitting a
certain amount of heat or producing a certain amount of C0 2, it
could be the case that only operating above 4500 rpms would be
good. Without the end of the car being given, it is impossible to
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say whether or not such operation would be good. The same
applies for the goods grasped by synderesis, in St. Thomas's
understanding. Since the ultimate end is the criterion for good
action, the fact that an action is motivated by one of the particular
goods grasped by synderesis cannot suffice to make it a good
action. A good action is one that pursues the particular good in
such a way as to attain the ultimate good. This requirement to
reach the ultimate good, a good not referred to by the principles
grasped by synderesis, means that these principles cannot function
as imperatives, obedience to which makes an action good as such.
A further misinterpretation of St. Thomas's account of conscience lies in the way it has been connected to prudence. Later
members of the Thomist school, beginning with Billuart, 8
described true judgments of conscience as being acts of the virtue
of prudence. Identifying the error in this position is very helpful
in illuminating St. Thomas's account of conscience.
Billuart confines acts of prudence to true judgments of
conscience because he is aware that prudence, being a virtue, only
produces good acts. He wrongly identifies such true judgments
with exercises of prudence, because he fails to understand that
prudence-as St. Thomas understands it-is a virtue that is
exercised in acts. Prudence is what supplies the intellectual
component of good actions (cf. STh 11-11, q. 47, a. 8). The assent
to a true judgment of conscience will form a component of an
exercise of prudence, but it cannot itself be an exercise of
prudence, because an exercise of that virtue goes all the way
through to the act. One can make a true judgment of conscience
without acting upon it, and a person who does not act well is not
prudent, even if all his beliefs about how he should act are true.
8 "An upright conscience coincides with the act of prudence that is termed judgment"
("Conscientia tamen recta coincidit cum actu prudentiae qui dicitur judicium"; Charles
Billuart, Summa Sancti Thomae, vol. N, new ed. [Paris: Meillier Freres, 1828], 187). I owe
this observation to M.-M. Labourdette's lecture notes on the Summa, Cours de theologie
morale: Les actes humains, 2a2ae, 6-48 (Toulouse, 1959-60); see esp. p. 150. The discussion
of conscience and prudence in this paper is largely based on these notes. I have not been able
to obtain the revised version of this course published by Parole et Silence in 1999, and have
used the original notes.
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JOHN R. T. LAMONT
But a true judgment of conscience is not an act, and need not be
acted upon.
Saint Thomas's conception of prudence and conscience
explains why he gives an extensive discussion of prudence, but no
discussion of formation of conscience, and not much discussion of
conscience itself. According to St. Thomas's understanding of
prudence, identifying the formation of conscience as the way to
moral improvement is a mistake, if such formation is understood
as first an attempt to improve one's capacity for arriving at true
speculative judgments about the rightness or wrongness of actions,
in order then to be able to act upon this improved knowledge. On
St. Thomas's view, this will not work. The natural way to get
better at knowing what it is good to do is principally by doing
what is good (the qualifier "natural" here is meant to take into
account the possibility of divine grace producing knowledge of
what it is good to do). One can acquire knowledge about the
goodness or badness of actions through speculative investigation
rather than through practice, but only in a subsidiary and
introductory way. Such speculative investigation will primarily
yield information about kinds of action that are intrinsically
wrong, and the learning of such information belongs to the first
stages of moral development. Apart from such intrinsically wrong
actions, the goodness or badness of most actions cannot be
deduced from an easily accessible description of them. It is part of
the task of prudence to discern the relevant descriptions under
which actions should be evaluated; and the capacity to make this
discernment is developed through developing one's prudence,
which is done through doing good acts. It is thus prudence, rather
than conscience, that plays the central role in moral discernment
for St. Thomas.
The notion of formation of conscience not only obscures the
central role of good action in developing one's power to form
true judgments of conscience, but also conveys a mistakenly
individualistic picture of how this power is developed. The chief
way in which prudence is developed is not by reasoning out moral
judgments on one's own-"forming one's conscience"-and then
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acting on them, but by accepting moral principles on trust from
the persons charged with one's education, and then learning the
truth of these principles for one's self by acting on them. This is
indeed the kind of way one acquires practical skills in general. It
applies not only to the overarching virtue of prudence, but to
subsidiary practical skills such as those of a doctor, a lawyer, or an
airplane pilot.
B) Moralities of Conscience
Counter-Reformation moral theologies are what Michel
Labourdette disparagingly calls "moralities of conscience." The
central role of conscience rather than prudence in these theologies
emerges from an overall structure that is radically different from
that of the theology of St. Thomas (one should not say "from the
moral theology" of St. Thomas, because the very term and
concept of "moral theology" belongs to moralities of conscience,
not to St. Thomas's thought). Servais Pinckaers has rightly
identified the notion of liberty of indifference as the fundamental
source of the divergence between St. Thomas and CounterReformation thought. 9 Originally inherited from nominalists and
Scotists, and preserved from criticism in part because of its
perceived usefulness in combating Protestants and Jansenists, 10 the
notion of liberty of indifference is defined by its rejection of St.
Thomas's claim that there is something the will wills of necessity,
and by its assertion that freedom consists purely in the power to
choose between alternatives.
Pinckaers's term for St. Thomas's conception of liberty,
"liberte de qualite," has been rather uninspiringly translated as
"freedom for excellence," which sounds like the motto for an
earnest service club--and misleadingly suggests that such freedom
is directed especially towards excellence, rather than to any
9 See Servais Pinckaers, Ce qu'on ne peut jamais faire (Paris: Editions du Cerf, 1986), 4346; and idem, Les sources de la morale chretienne, 2d ed. (Paris: Editions du Cerf, 1990),
chap. 10, esp. pp. 259-61.
10 On liberty of indifference as a weapon against Jansenism, see Pinckaers on Billuart, in
Pinckaers, Les sources, 357-58.
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JOHN R. T. LAMONT
goodness whatsoever. The term that will be used for this conception here is "teleological liberty." This term is intended to
signify that all voluntary action, according to St. Thomas, is done
for the sake of some good that is understood by the intellect as
good; that the ultimate good sought is happiness; and that
happiness is determined by human nature, whose teleology
specifies the goal of human beings as such, achievement of which
goal constitutes happiness. Possession of teleological liberty is a
result of the possession of intellect and will, and its exercise is an
exercise of those faculties. The source of moral obligation, on this
view, is the fact that some actions are not good in every respect,
and hence ought not to be done; it is not that they lack some
specific kind of goodness that can be called "moral goodness."
The source of the capacity to sin is the fact that actions, although
seen as evil when adequately considered, can nonetheless fall
under more general descriptions that refer to good sorts of action,
and hence can motivate the will to pursue them. Freedom to
choose between alternatives arises from the fact that more than
one possible action can be good in some respect. Hence, the
blessed in heaven, who, because of their direct apprehension of
the divine essence, are unable to conceive of sin as good, are
unable to choose to sin; but this is not a limitation on their
freedom. The law of nature that specifies the goodness of the will
is given by the goods to which human teleology is directed. This
law, whose basic features are grasped in synderesis, does not
specify kinds of good action, but features of reality that human
actions are to realize, features that provide the measure by which
to evaluate actions. A law is nothing other than a certain plan and
rule of acting ("lex nihil aliud sit quam quaedam ratio et regula
operandi"). 11
If liberty is conceived of as liberty of indifference, however,
this conception of the ultimate motivation for human action has
to be abandoned, because liberty of indifference must retain the
power to reject any good at all presented to it by the intellect. The
11 ScG III, c. 114 (St. Thomas Aquinas, Summa contra Gentiles [Rome: Leonine
Commission, 1934], 366).
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notion of such a power is incompatible with St. Thomas's very
first principle of practical reason. It also denies the teleology of
human nature, as St. Thomas understands it. For him, this
teleology consists in the fact that voluntary action, and the human
will itself, it directed towards the good as understood by the
reason. If this direction does not exist, the end of man, as he
conceives it, is removed. Liberty of indifference thus removes the
basis of his account of the nature of the human good, of practical
reason in general, and of good action.
A replacement for this basis is required for the purpose of
moral theology, and it is furnished by the notion of the command
of a superior as the ultimate motivation for doing what is good.
For Ockham, the content of what is good is furnished by the
divine command, as well as the obligation to do it. 12 For
Suarez-a characteristic representative of Counter-Reformation
theology, as the official theologian of the Society of Jesus-the
content of what is good is given by the nature of things, and this
goodness can provide a motivation for action. It cannot, however,
make an action obligatory, and thus cannot furnish a basis for
morality and for law. The command of God adds the extra
ingredient needed to achieve this. Law, in the mind of the
legislator, consists in a just and right act of will by which a
superior wills to oblige an inferior to do this or that thing ("addo
... legem mentalem [ut sic dicam] in ipso legislatore esse actum
voluntatis justae et rectae, quo superior vult inferiorem obligare
ad hoc vel illud faciendum") 13 In order for this act to apply to the
inferior it must be promulgated, but this happens, in the case of
the natural law, through rational beings inferring that God, as
perfectly good, wills that the natural good be done by us (De
Legibus, bk. 2, ch. 6, para. 8). In St. Thomas, by contrast, it is the
12 This account of Ockham's views is contested-see
Thomas M. Osborne, "William of
Ockham as a Divine Command Theorist," Religious Studies 41 (2005): 1-22, for a description
of this debate-but it will be accepted here, as providing one of the main theoretical
possibilities for describing how the divine command determines moral obligation.
13 Suarez, De Legibus, bk. 1, ch. 5, para. 24, in Franciscus Suarez, S. ]., Opera Omnia, vol.
5 (Paris: Vives, 1851), 22. This definition, radically different from the definition of law given
by St. Thomas and cited above, is repeated in substance as late as the manual of Zalba,
Theologiae Moralis Compendium I (1958), 173.
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JOHN R. T. LAMONT
grasp of the first principles of practical reason itself, rather than
any inference to conclusions about God's will for us, that
constitutes the promulgation of the law of nature (STh 1-11, q. 90,
a. 4, ad 1). Suarez, in proposing a morality of obligation rather
than a morality of virtue, was characteristic of a general outlook
that had become common in the Middle Ages, and later became
universal. Elements and causes of this outlook were the replacement of the virtues by the Ten Commandments as the basis of
moral catechesis, the revival of Roman law in the Middle Ages,
and the power and influence of canonists; St. Thomas in fact
stood out against this movement, which was already strong in his
day.14
The idea that the law of nature consists in commands is a
reversal of St. Thomas's idea. The law of nature for St. Thomas
works from the inside; the will moves towards the ultimate end,
via the particular goods that participate in it. For Suarez, the force
of the law of nature comes from the outside: the divine command
replaces the first principle of practical reasoning as the ultimate
source of obligation, and gives an imperative force to the law.
Because this law has to govern individual actions, its imperative
force has to reach all the way to commands, prohibitions, and
permissions of specific actions, these being the categories of
imperative that Suarez assigns to the law (De Legibus, bk. 1, ch.
15).
Because it is impractical to have a distinct divine command for
every possible situation, the description of the kinds of action that
are commanded, prohibited, or permitted is always rather general.
Their application to particular cases is thus not straightforward.
This is where conscience enters into the picture. Conscience, in
the conception of Suarez and of other moralists of conscience, is
the intermediary between divine commands and particular
actions. Conscience is an active power-it has the task of
discerning how the application of a command to a particular
action is to be done. Since it is only by conscience that the divine
14 On this see Thomas Gilby, "Appendix 1; Prudence and Laws," in St. Thomas Aquinas,
Summa Theologiae, vol. 36 (2a2ae 47-56) (London: Eyre & Spottiswoode, 1974).
CONSCIENCE, FREEDOM, RIGHTS
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commands are applied to action, conscience becomes an authority. It is not simply the reasons upon which conscience judges that
have authority; conscience inevitably possesses an authority of its
own, since it carries out the selection and evaluation of reasons
for judging an action. In this capacity, conscience becomes central
to Counter-Reformation moral theology-in contrast to its very
minor role in St. Thomas.
C) Conscience as Authority
This notion of conscience as an authority gives rise to a crucial
difference between St. Thomas's notion of conscience and that of
Counter-Reformation theologies. For St. Thomas, and for
moralities of conscience, an erring conscience binds; if one falsely
believes that a given act is good or bad, one is morally required to
act in accordance with that false belief. An erring conscience does
not necessarily excuse, however; if one's false belief is the result
of previous bad actions, acting in accordance with it remains a sin.
Only when a mistaken judgment of conscience is arrived at
inculpably is acting in accordance with it not sinful. Thus far, St.
Thomas and moralities of conscience agree. Where they disagree
is over the question whether an action that follows an inculpably
erring judgment of conscience is a good action or not. Saint
Thomas denies that such actions are good. He asserts that the
ignorance in question removes the character of voluntariness from
the act, thus making it neither good nor bad (STh I-II, q. 19, aa.
5-6; see also De Verit., q. 17, a. 4).
For moralities of conscience, however, an action done in
accord with an inculpably ignorant judgment of conscience is not
only not sinful, but good. 15 Such an action is put on the same
moral level as an action based on a judgment that is actually true.
This follows from the conception of conscience as an authority,
and of good action as consisting in obedience to that authority.
15 This is stated in Suarez, De bonitate et militia humanorum actum, ]).
77 See, e.g., Villey's review of Richard Tuck's Natural Rights Theories: Their Origin and
Development (Cambridge: Cambridge University Press, 1979), in "Travaux recents sur !es
droits de l'homme, I," Archives de philosophe du droit 26 (1981): 411-18.
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JOHN R. T. LAMONT
Villey points out, objective right is a real feature of the world,
which inevitably obtrudes itself into daily life and legal decisions.
Accounts of natural subjective rights, together with positive
legislation, are in practice insufficient for juridical purposes. 78 The
real activity of judges, when investigated, turns out to involve
acknowledgment of the existence of objective right. An account
of justice and law with no place for objective right therefore needs
an understanding of the world that can motivate people to deny
the existence of objective right, and to reject or reinterpret the
judicial activity that depends on the existence of objective right.
Ockham's nominalist ontology performs this essential function for
a theory of subjective rights.
F) Full Development of Subjective Rights
Villey's account of the origin of philosophical accounts of
subjective rights thus stands up to examination. Although he
identifies Ockham as the originator of subjective rights, he holds
that the full-fledged subjective rights position took time to
develop. An important step in that development was the baroque
Scholastic account of ius as a power rather than a relation, 79 but
the final steps were taken by Hobbes. These steps were the
definition of subjective rights as natural rights and the elaboration
of a conception of the nature of individuals and human society
that would replace the Aristotelian conception that underlies
objective right. Hobbes offers this definition of right:
The right of nature, which writers commonly call jus naturale, is the liberty each
man hath, to use his own power, as he will himself, for the preservation of his
own nature; that is to say, of his own life; and consequently, of doing any thing,
which in his own judgment, and reason, he shall conceive to be the aptest means
thereunto .... Right, consisteth in liberty to do, or to forbear; whereas law,
See, e.g., Michel Villey, Reflexions sur la philosophie et le droit: Les carnets de Michel
Villey, ed. Marie-Anne Frison-Roche and Christophe Jamin (Paris: PUF, 1995), 305.
79 For ius as a power in Vitoria and Suarez, see Villey, La fonnation de la pensee juridique
moderne, 344-45, 356-57.
78
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determineth, and bindeth to one of them: so that law, and right, differ as much
as obligation, and liberty; which in one and the same matter are inconsistent. 80
Inspired by the scientific practice of the day, 81 Hobbes attempted
to describe the properties of human societies as functions of the
properties of the individuals that compose them. This is the
rationale for the hypothesis (or perhaps merely the thought
experiment) of the state of nature, a state where the attributes of
individuals who are joined by no social bonds can be considered.
These attributes then serve as the basis for the construction of all
social bonds, much as the electron shells of atoms serve as the
basis for the construction of all molecules. This conception of the
nature of society is fundamentally opposed to that of Aristotle and
St. Thomas, and rules out the possibility of objective right. The
only attributes of individuals in a state of nature are those that
flow from the bare human nature found in each one of them,
since every historical circumstance or personal relation has been
thought away. Political structures are derived from these attributes
from the drive to self-preservation, together with the law of
nature that requires individuals to keep their promises. This gives
rise to a situation in which the rights possessed in the state of
nature are ceded by contract to the ruler, in order to achieve the
goal of self-preservation for individuals. Since these rights are
absolute spheres of freedom in which to act, they confer absolute
power on the ruler when transferred to him. The ruler becomes,
for Hobbes, a "mortal God" upon which his subjects can make no
claim.
This absolutism, favored by Hobbes partly as a result of his
experiences of the English Civil War, did not go down well in
England. The flexibility of the notion of subjective right was
demonstrated by Locke's use of it to limit the powers of the ruler,
through the simple expedient of postulating more subjective rights
in the state of nature than Hobbes's solitary right to selfp. I, c. 14, in The English Works of Thomas Hobbes, vol.
3, ed. Sir William Molesworth (London: John Bohn, 1839; repr. Darmstadt: Scientia Verlag
Aalen, 1966), 116-17.
81 Villey, La formation de la pensee juridique modeme, 574-75.
80 Thomas Hobbes, Leviathan,
222
JOHN R. T. LAMONT
preservation. This expedient, together with the postulation of a
more comprehensive law of nature that binds men in the state of
nature, transformed the state of nature from a misery to be
escaped into the foundation upon which society is built. The
principal additional natural right postulated by Locke is that of
property (Two Treatises on Government, b. 2, c. 5). The natural
law commands us to respect the natural rights of others. Because
they are natural, these rights are absolute, and cannot be infringed
on by the state against the will of their possessors. The powers of
the state are those natural rights that have supposedly been ceded
to it by the free consent of its citizens.
The great and chief end, therefore, of men's uniting into commonwealths, and
putting themselves under government, is the preservation of their property ...
. in the state of nature, to omit the liberty he has of innocent delights, a man has
two powers. The first is to do whatsoever he thinks fit for the preservation of
himself and others within the permission of the law of nature .... the other
power a man has in the state of nature, is the power to punish the crimes
committed against that law. Both these he gives up when he joins in a ...
particular politic society .... the first power ... he gives up to be regulated by
laws made by the society .... the power of punishing he wholly gives up. 82
The obligation to keep one's promises is also a part of the natural
law, thus giving a moral basis to the power of the state. The result
of this social contract is a night-watchman state, with no authority
over religious belief (which is taken to be a purely private matter),
no authority to punish immoral behavior as such, and no
authority to suppress the free expression of opinion, except in so
far as any of these things violate the rights of others or the public
peace (these positions are all developed by Locke in A Letter
concerning Toleration). Its function is to protect individual rights
against internal and external aggressors-a function that
emphatically cannot include any kind of redistribution of
property, which would be an infringement on natural rights.
Locke's political philosophy is the theoretical rationale, and a
82 John Locke, Two Treatises of Government, book 2, Essay on Civil Government, c. 9, in
The Works of John Locke, vol. 5 (London: Thomas Tegg, 1823; repr. Germany: Scientia
Verlag Aalen, 1963), 412-14.
CONSCIENCE, FREEDOM, RIGHTS
223
historical cause, for the "Anglo-American" conception of the
religiously neutral state, which is often favorably contrasted by
Catholic thinkers with the more determinedly secular
understanding of the state that emerged from the French
Revolution.
Villey's account of the development and eventual supremacy
of the concept of subjective rights is not limited to the ideas of
philosophers. It also contains descriptions of the important contribution of jurists. The baroque Scholastics, especially Suarez, fell
to some extent into both these categories (and had an underestimated influence on the development of legal thought), but in
the seventeenth century the work of men whose scholarly activity
was concerned primarily with the law began to play an important
role in this process. The chief figure in this development was
Grotius. Villey points out that the innovation usually credited to
him, that of separating law from religious belief, was not in fact
novel. It is a basic feature of the thought of St. Thomas on ius,
grounded as it is on the pagan Aristotle; and Grotius's formula of
the natural law obtaining even if it is assumed that God does not
exist ("etiamsi daremus ... non esse Deum") is in fact found in
substance in a number of Scholastics. 83 Nor was Grotius's
definition of rights as subjective rights a novelty. Villey identifies
Grotius's originality as consisting in his attempt to base the law on
principles of morality. Grotius's ambition was to found the law on
a rational basis that was as independent of empirical facts as the
work of mathematicians. 84 He sought to achieve this by merging
law with morality-"law is a rule of moral actions obliging one to
do what is right" ("ius est ... regula actuum moralium obligans
ad id quod rectum est") 85-and basing law on the first principles
of morality inscribed in the human conscience. These principles
are founded on the inclination to live in human society, and are
taken from Stoic morality as passed on by Cicero. They are the
83 Villey, La fonnation de la pensee juridique modeme, 539; he instances Suarez, De
legibus, bk. 2, ch. 6, para. 17; Vasquez, Commentari ac disputationes in Primam Secundae S.
Thomae (Lyons, 1631),