Debating Medieval Natural Law: A Survey - Hardcover

Saccenti, Riccardo

Hardcover

ISBN 10: 0268100403 ISBN 13: 9780268100407

Publisher: University of Notre Dame Press, 2016

Synopsis

In Debating Medieval Natural Law: A Survey, Riccardo Saccenti examines and evaluates the major lines of interpretation of the medieval concepts of natural rights and natural law within the twentieth and early twenty-first centuries and explains how the major historiographical interpretations of ius naturale and lex naturalis have changed. His bibliographical survey analyzes not only the chronological evolution of various interpretations of natural law but also how they differ, in an effort to shed light on the historical debate and on the medieval roots of modern human rights theories. Saccenti critically examines the historical analyses of the major historians of medieval political and legal thought while addressing how to further research on the subject. His perspective interlaces different disciplinary points of view: history of philosophy, as well as history of canon and civil law and history of theology. By focusing on a variety of disciplines, Saccenti creates an opportunity to evaluate each interpretation of medieval lex naturalis in terms of the area it enlightens and within specific cultural contexts. His survey is a basis for future studies concerning this topic and will be of interest to scholars of the history of law and, more generally, of the history of ideas in the twentieth century.

About this title

About the Author

Riccardo Saccenti is a scholar at the Fondazione per le Scienze Religiose Giovanni XXIII in Bologna and teaches history of medieval philosophy at the University of Bologna.

From the Back Cover

"With exemplary scholarship, Riccardo Saccenti provides a clear and unbiased presentation of the evolution of natural law theory, practice, and interpretation from the Middle Ages to the present. His welcome and original work expands our understanding of how medieval natural law, and in particular how the relationship between natural rights and both the church and society, has been viewed by original authors and scholars. This is a valuable resource in its thorough and even-handed treatment of primary sources as well as its inclusion of the vast secondary literature." --Mark Clark, Catholic University of America

"Scholars from the early twentieth century to the present have disagreed on how to interpret the multiform traditions of natural law in medieval thought and their relations to modern natural law theories. In addition to providing a lucid and up-to-date survey of the historiography of this debate, placing its participants in their own disciplinary and methodological contexts, Riccardo Saccenti also argues persuasively for a more holistic approach to this subject. His valuable study should be required reading for scholars interested in medieval natural law theories, both in their own right and in their continuing relevance to philosophy, theology, law, and political theory." --Marcia L. Colish, Yale University

"Thoroughly conversant with primary and secondary sources, Riccardo Saccenti offers a new approach to divergent interpretations of the idea of natural law in the Middle Ages. With a rare blend of philosophical competence and historical perceptivity, he succeeds in explaining the positions of acknowledged scholars, such as Finnis, Oakley, Tierney, Nederman, and Brett, both in their presuppositions and in their relevance for current discussions on natural rights. While previous contributions risk being one-sided or limited by their polemical attitude, Debating Medieval Natural Law gives for the first time a comprehensive and balanced survey of the many issues at stake. A long-awaited, reliable guide through the intriguing and sophisticated debates about the origins of a crucial and controversial idea of Western civilization." --Roberto Lambertini, University of Macerata

Riccardo Saccenti is a scholar at the Fondazione per le Scienze Religiose Giovanni XXIII in Bologna and teaches history of medieval philosophy at the University of Bologna.

Excerpt. © Reprinted by permission. All rights reserved.

One of the main questions in the study of natural rights and natural law is when these concepts first came into use in the modern period. Originally ius naturale was synonymous with lex naturalis, an objective rule or prescription. at a particular point in time, ius naturale began to refer also, or more strictly, to a specific right belonging to each human being. The distinction between lex as objective rule and ius as subjective right marks the beginning of a new language and is a basic feature of modern rights theories. The history of these concepts involves not only the discovery of a crucial turning point in the history of ideas. to establish the “birth” of the modern idea of natural rights means also to determine the way in which it happened. Is there a specific discontinuity in the history of ideas, a moment after which the legal, moral, and political lexicon radically changed? or is there a longer and more complex process, during which natural rights language shifted from its ancient meaning to our modern understanding?

Some authors stress that the origin of the modern notion of natural rights has to be linked to the specific features of the modern age; for others, it is to be found in medieval legal and political thought. Twentieth-century historians and philosophers, as well as jurists and theologians who have focused on natural law and natural rights, adopt different points of view according to the cultural and intellectual contingencies in which they live and work. In this light, an evaluation of their interpretations of the medieval doctrines of natural law and natural rights requires general remarks on the different cultural “seasons” and circumstances in which these authors studied and worked.

The rise of totalitarianism and the dramatic experience of World War II created a crisis for the positivist legal tradition and the political order it had produced since the middle of the nineteenth century. In this context, several intellectuals and philosophers elaborated the idea of “human rights,” that is, natural individual rights proper to every human being, which the state through its laws must protect and support. Many thinkers debated the philosophical status of human rights, particularly after approval of the 1948 united nations universal Declaration of Human rights. the idea that there could be rights that limit political power because they are “natural,” that is, not established by any authority but simply recognized by human reason as proper to human nature, questioned the basic assumptions of legal positivism. The consequence was that thinkers who came from a positivist culture started to moderate their radical denial of the existence of any kind of natural legal principle. Herbert Lionel Adolphus Hart, for example, in his famous article, “are there any natural rights?,” suggests that the existence of at least one basic natural right can be admitted: the equal right of all men to be free.

Within this cultural framework, historians focused on the origins and roots of contemporary natural rights and looked back to the medieval notions of natural law and natural rights. In addition, one must remember that the discourse on ius naturae and lex naturae was quite commonly classified as part of the history of ideas. ever since the publication of Arthur O. Lovejoy’s The Great Chain of Being (1936), this kind of historical study has been much questioned and debated, as also in relation to the development of discourse on natural law and natural rights. Several scholars, particularly those belonging to the Anglo-Saxon intellectual milieu, have devoted increasing attention to defining the epistemological criteria for evaluating the features and development of a concept in different moments of its history. These two elements are crucial also for studies concerning the place of natural law and natural rights from the eleventh to the fifteenth century. These studies have to be placed alongside another cultural development in the first half of the twentieth century, namely, the new interest of catholic intellectuals in the Middle Ages and the debate about the foundations of modern political discourse.

The increasing interest in medieval civilization, which Pope Leo XIII stimulated and supported, led to a series of historical and philological studies that aimed to present the great texts of christian medieval thought.5 among the subjects of interest was natural law, which in the decades around the turn of the twentieth century was a topic of debate and confrontation between catholic and secular cultures. the catholic interest in natural law and natural rights of the Middle ages had a significant turning point in the 1920s and 1930s. It is in these decades, when the catholic church faced a complex situation with respect to totalitarian regimes, that fresh attention was given to the issues of lex naturalis and ius naturale and to the question of their mutual relationship. Several authors, such as the philosopher Jacques Maritain and the Dominican medievalist Marie-Dominique chenu, moved from the idea of a return to a medieval christian civilization to that of the construction of a “new christianity.” This philosophical and theological orientation was supported by a new historical approach to the evaluation of medieval philosophy and theology.

In 1922 Martin Grabmann published an essay offering a general overview of the development of the doctrines of natural law and natural rights between the ages of Gratian and Thomas Aquinas. Through a detailed series of quotations from the writings of twelfth- and thirteenth-century canonists and theologians, the German scholar showed how complex and clearly articulated were the roots of Aquinas's doctrine of ius naturale. Since Gratian the medieval discourse on “naturrecht” engaged both canonists and theologians, who melded the roman legal and philosophical culture and the heritage of the church Fathers. According to Grabmann, various authors, including Peter Lombard, Magister Gandulphus, Stephen of Tournai, Praepositinus, Stephen Langton, and Philip the Chancellor, contributed to the debate that prepared the way for the season of great scholasticism. After 1924 odon lottin went further in his research on the texts of and witnesses to the medieval doctrines of natural law and natural rights. He published a series of articles in the Ephemerides theologicae Lovanienses that were later collected in the volume, Le droit naturel chez saint Thomas d’Aquin et ses prédécesseurs. He then returned to this topic in his collection, Psychologie et morale aux XIIe et XIIIe siècles. According to Lottin, the twelfth- and thirteenth-century debate on lex naturalis and ius naturale was characterized mainly by two types of matters: first, the nature and content of lex and ius; and second, its features (i.e., innate, universal, and immutable). the detailed examination of the juridical and theological milieu that lottin offered was thus the essential premise to a closer historical interpretation of Aquinas's Summa Theologiae, Ia–IIae, q. 94, where the Dominican master gave his account of natural law.

(Excerpted from Introduction)

Edition details

• Publisher: University of Notre Dame Press
• Publication date: 2016
• Language: English
• ISBN 10: 0268100403
• ISBN 13: 9780268100407
• Binding: Hardcover
• Edition number: 1
• Number of pages: 170