Retrieving a Catholic Tradition of Subjective Natural Rights from the Late Scholastic Francisco Suarez, S.J
Brust, Steven J., Ave Maria Law Review
There is good reason to inquire into the Catholic contributions to the foundation of human rights. (1) There is a global proliferation of natural rights in nation-states, international treaties, charters and conventions, as well as in political rhetoric, court decisions, law, and even in personal conversation. Furthermore, the Catholic Church herself has emerged as one of the leading advocates of natural rights in its moral and social teachings as well as in its charitable practices. As a result of these omnipresent rights claims, debates have arisen with respect to the origin and nature of, and justification for, natural rights. These debates are not only between Catholics and those outside the Church (e.g., with contemporary secular liberals), but also between Catholics themselves.
At the heart of these debates are a number of questions: Do natural rights even exist? If so, what is a right? Are natural rights compatible with or contradictory to natural law understood as an objective order of justice? Are natural rights derived from natural law or is natural law derived from natural rights? Which is given a priority? Do natural rights entail a rejection or diminution of virtue and the common good?
For some Catholics, a very important aspect of this overall debate is the supposed break between pre-modern views on natural right/law and modern views on natural rights. They offer a narrative which includes the claim that rights are more of an invention of the modern political philosophers such as Hobbes and Locke, and/or have their origin in the purported nominalist and individualist thought of William of Ockham. (2) They tend to be conflicted when attempting to explain why and how the Church can now be such an advocate of rights. (3) Instead of this narrative, I would like to offer another instructive one, which I believe to be a more historically accurate and a more correct understanding of natural rights within the Catholic tradition itself. My Article focuses on one person in this narrative, the prominent, pre-modern, late scholastic, Jesuit theologian/philosopher,
Francisco Suarez, S.J. (1548-1617), (4) who inherited the entire tradition before him. His thought can be summoned to resolve some of the above disputed questions concerning the origin and nature of natural rights, and their relation to natural law, civil law, virtue, and the common good. (5) Suarez's understanding of rights, I hope to show, is evidence of a Catholic tradition of human rights, which Catholics should not fear, and which is (generally) consistent with how the Church understands rights today. In addition, this tradition can help provide the proper grounding for any rights claims as Catholics engage the contemporary debate about rights in all venues.
The narrative I present here builds on the one advanced by Brian Tierney, who claims that natural rights discourse has its origin in early medieval canonists, jurists, theologians, and philosophers, and that the successors of the medieval developed natural rights discourse up to the modern political thinkers and into contemporary times. (6) Important to this is the claim that rights include a "sphere of free choice" which stems from a right of self-ownership. One of the key objections which some Catholics have with this narrative is that the modern and contemporary idea of rights predominately is understood as rooted in individual autonomous choice. (7) They argue that these putative free choice rights are the problem, in that they are rights not merely to choose among various goods, but to make choices in violation of the natural law and therefore undermine virtue and the common good. I will show that Suarez provides an understanding of and justification for a natural right as a moral power or faculty pertaining to the individual subject rooted in self-governance. Yet this understanding itself is rooted in his overall view of human nature; hence, rights do not have to be separated from or opposed to natural law/right, God's objective order, political power, virtue, and the common good. …