Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought by Annabel S. Brett

Abstract

Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought. By Annabel S. Brett. (New York: Cambridge University Press. 1997. Pp. xii, 254.) The word ius, as anyone acquainted with medieval juristic or scholastic texts recognizes immediately, poses a baffling array of problems for those who wish to explicate its range of meanings. Annabel Brett has written an important and stimulating book that provides such an explication with respect to scholastic discourse of fourteenth and fifteenth centuries as well as writings of Spanish Neo-Scholastics of sixteenth century and Thomas Hobbes in seventeenth. In asuming this challenging undertaking, Brett has performed a signal service for scholars. Our knowledge of uses to which this term was put has been enriched substantially by her work. Brett's work is divisible into two large sections, each consisting of three chapters. In first half of her book, she addresses formation of scholastic discourse of individual rights. She begins by rebutting notion, advanced by historians like Richard Tuck, that equivalence between ius and dominium made by some thirteenth- and fourteenth-century writers amounts to the `origin' of modern subjective right in its most radical form . . . in which it is preeminently associated with liberty, with property, and with a certain idea of (p. 10).To be sure, some thirteenth-century writers, especially theologians associated with Franciscan Order, did make such an equation. St. Bonaventure and John Pecham, for instance, equated ius and dominium as part of a larger effort to understand freedom of will necessary to renounce goods of this world: Ius as much as dominium involved ability to claim in court (p. 18), and so violated spirit of humilitas required of every Friar Minor. But most medieval authors, Brett continues, did not make ius-*dominium equivalence a central part of their thought on freedom of individual. Brett brings this point home by reviewing works of Roman lawyers like Bartolus of Sassoferrato and authors of Summae confessorum of late thirteenth, fourteenth, and fifteenth centuries. She closes chapter by looking to writers of late fifteenth or early sixteenth century, such as Conrad Summenhart and John Mair, to conclude that analysis of the equivalence of dominium and ius . . . did not bequeath to scholastics of sixteenth century a language of ius as sovereignty or indifferent choice (p. 48). After refuting those who would see dominium-ius as origin of Western subjective rights talk, Brett turns her attention in next two chapters to role played by scholastic writers in shaping of Western rights vocabulary. The story she tells is compelling and important. She sees William of Ockham as playing a crucial role in development of this vocabulary, especially in philosophically rigorous definition he offered of ius as a potestas licita. She avoids pitfall of tracing Ockham's definition back to his nominalist and voluntarist roots, recognizing that practice of characterizing scholars' work as nominalist or realist and reading into such characterizations assumed commitments about right and justice has deeply distorted much older writing about history of subjective rights. Brett's intention is to take full account of the many intellectual strands that have come to shape early history of rights (p. 50). She thus considers contribution of such writers as Richard Fitzralph and John Wyclif. She closes chapter with a discussion of Jean Gerson, who articulated a theory of rights as faculties or powers held or exercised in accord with right reason. Brett's treatment of Gerson is marred by her shortchanging possibility that Gerson was influenced by a tradition of rights discourse that extended back to twelfth-century decretists. …