Since Michel Villey, historians have focussed on the question: Did medieval thinkers develop a theory of rights comparable with modern theories, and if so when? Historical research has therefore been guided by conceptions of what counts as a right in the modern sense, and therefore by various philosophical suppositions, some of which have been misleading. Some have argued that medieval theories of rights were not equivalent to modern theories because the latter put more emphasis on choice, freedom, and individual sovereignty.
Since a right relates to a ‘‘kind’’ of action or claim, and since acting or claiming involves choice, to say that a right marks out an ‘‘area of choice’’ is a truism. Exercise of a right may be a duty (e. g., the rights that go with a role), but even then exercise is a matter of free choice, since one can always choose not to perform one’s duty. Every list of rights and duties, indeed every moral code of whatever kind, is addressed to persons who have freedom of choice. Freedom in another sense (not freedom of choice, but freedom from obligation) is what is left after duty, and the shorter the list of socially enforced duties the greater the individual’s freedom in this sense. The medieval list was not all-embracing, and therefore there was freedom in this sense during the Middle Ages - though certain kinds of freedom, for example, freedom of religion, were not as well recognized as they have been since. It is not true that medieval rights were for the sake of duty while modern rights are for the sake of freedom; both kinds of rights have been recognized both in the
Middle Ages and in modern times. Both kinds are rights in the same sense of the word - in every case, to say that one has a right to do or claim something is to say that the action or claim is permissible. If it is also a duty, the point of describing it as a right is to remind potential opponents that one must be permitted to do one’s duty. Both kinds of rights impose duties (different duties) on other people, but only if the right-holder or his or her representative chooses to exercise the right. Finally, it is not true that the modern, in contrast with the medieval, conception of a right attributes “sovereignty” to the right-holder. On either the modern or the medieval view, a person’s choice to exercise a right imposes on others certain duties, but these duties are determined by the moral or legal code and merely triggered by the rightholder’s choice to exercise the right; they are not legislated by the right-holder.
World History
