Political Rights

When Ockham’s conflict with Pope John led him to questions about the constitution of the church and the relationship between church and secular government, the notion of natural rights was again central to his thinking. In a number of places (OND 88.308-310, Brev. iv.10.54-58, 3.1 Dial. 2.28, 3.2 Dial. 3.6) Ockham invokes the canon Ius civile, a text in which Isidore explains the meaning of the term ‘‘civil law’’: ‘‘Civil law is the law proper to itself that each people or city establishes, in accord with divine and human reason.’’ Ockham interprets this not merely as the explanation ofa term but as an assertion of the right of each people to establish for itself a law and a government and to elect its own ruler. (‘‘People’’ here does not mean what it meant for nineteenth century nationalists. It means human beings living in some locality or region who have common interests, for example, in peace; see OQ iii.1.66-70.) These natural political rights are said to be given ‘‘by God and nature’’; they are not given by God through positive divine law, but through the law of nature (which is divine law in a broad sense). ‘‘Law of nature’’ is here understood in the third sense, that is, natural law on supposition (see the article on Natural Law in this volume). The natural political rights have application even to the government of the church. For example, the Christians of Rome have a natural right to elect the pope (3.2 Dial. 3.6-7). Although by Christ’s institution monarchy is the normal constitution of the church, there may be situations in which Christians have the right to vary the ecclesiastical polity at least for a time - for example, there may be situations in which different parts of the church have the right to appoint heads not subordinate to a pope (3.1 Dial. 2.20-28).

Independent rulers hold power ‘‘from God alone’’ in the sense that regularly they are answerable to God alone, but rulers receive their power from the people and on occasion can be corrected or deposed by their subjects, or even by an individual subject (Brev. iv.6). Rulers have a (positive) right to their rulership, so that they cannot be replaced except for misconduct (Brev. iv.13). Hence the right to establish law and government can be exercised only by a people with no superior, i. e. a people not already under government (3.2 Dial. 3.6). Ockham accepted the view of the Roman lawyers that when the Roman people transferred their power to the first emperor, they also gave the emperor and his successors power to provide for the succession (OQ, viii.4.218-236: 193-194; Brev. vi.2.31-8:251). Similarly, the Christians of Rome, who have a natural right to elect the pope, may have transferred the right of election to others, for example, to the cardinals, or in some cases to the emperor (3.2 Dial. 3.6-7). Which rights are given to the ruler and which are retained by the people, and what is the constitution of the government, varies from one community to another (3.2 Dial. 2.29; OQ v.6.56-61:159-160). However, just as in situations of necessity an owner’s positive rights may be overridden by the right to use, so if government breaks down, or if the ruler becomes a tyrant, the people’s natural right to provide themselves with government and law revives and they may depose one ruler or regime and establish another. In view of the possibility of breakdown or tyranny, a ruler should not have so much control that he can evade correction - it is unnecessary, indeed dangerous, for everyone in the state to be subject in every case to one supreme ruler (OQ, iii.3.34-39).

Even in normal situations, the rights or powers of a ruler, even of pope and emperor, are limited by the rights of subjects, not only by the right to replace a tyrannical ruler but also by other ‘‘rights and liberties.’’ Ockham does not specify these in detail. The ruler’s power is obviously limited by the natural rights of subjects. Ockham takes this pretty much for granted, since no one claimed that rulers have power superior to natural law. His main contention, in regard to both popes and secular rulers, is that their power is limited not only by divine and natural law and natural rights, but also by positive rights and by natural and positive liberties. The pope’s power is limited by the freedom Christians have under the gospel, which is a ‘‘law of liberty’’ (Brev. ii.3, 16-18); the secular ruler’s power is limited by the freedom which (not all but most) subjects have because they are not slaves but free - the freedom of subjects is necessary to the best form of government (OQ iii.4, 6; 3.2 Dial., 2.26-28). The indefiniteness of the array of rights and liberties may well be deliberate; perhaps Ockham did not need, or wish, to set out a purportedly complete list. The conception of the subjects’ rights and liberties is given content by two things: first, by tradition - the rights and liberties people have had since Roman times should be respected unless there is some good reason why not (Brev. ii.16.12-13:142-143); and second, by the notion of the common good - rulers must aim not only at their own good, but at the good of all the members of the community (OQ iii.4.7-14:103).

Ockham’s accounts of the right to use, the right to property, the rights of rulers and the rights and liberties of subjects make no reference to the difference between Christian believers and unbelievers. Political rights belong to all human beings. The empire of the pagan Romans may have been established at first unjustly, but later the subjected peoples came to consent to government by the Romans and this made it legitimate - Christ himself acknowledged its legitimacy (Brev. iv.9-11, 3.2 Dial. 1.27). The Christian Roman emperors and other Christian rulers succeeded to the political rights of their nonChristian predecessors (Brev. iii.5). Against those who assert that all dominium belongs to the church, Ockham argues explicitly that unbelievers have rights under both natural and positive law (Brev. iii.2-6, 8, 12, 13). Some medieval writers, notably Giles of Rome and John Wyclif, denied that unbelievers (or sinners, or the reprobate) had rights, but, like Ockham, most theologians rejected this view. When the Spaniards invaded South America the property rights, and other rights, of the Indians were asserted by Vitoria and Las Casas and others (see Tierney 1997:255ff).

Theories like Ockham’s were put forward by many later medieval writers. The leaders of the Conciliar movement studied Ockham (d’Ailly, for example, produced an abbreviatio of Ockham’s Dialogus) and were also influenced directly by the canonist tradition that had influenced Ockham (Tierney 1955). Gerson’s conception of a body whose members had individual rights prior to any enactment by that body, rights that include a right to self-defense and also certain ‘‘political’’ powers (Tierney 1997:220-225), echoes both Ockham and the canonist tradition. The political theory of Locke’s Second Treatise has obvious similarities with Ockham’s; the Conciliarists are the most likely medium of transmission of fourteenth century ideas into the seventeenth century (see Oakley).

Though the general architecture of natural rights political theory did not change much, if at all, after Ockham, later writers made interesting contributions. Vitoria, de Soto and Suarez extended and strengthened the natural right to freedom. In defending the rights of the Indians, Vitoria followed Scotus (Flueler, vol. 1:75-81) in rejecting, or greatly modifying, Aristotle’s doctrine of natural slavery: the less intelligent may need leadership, but it is unjust to subordinate their interests to the interests of the intelligent. Aristotle did not mean ‘‘that it is lawful to seize the goods and lands, and enslave and sell the persons, of those who are by nature less intelligent’’ (Vitoria 1991:251). Even if it were true, as Spaniards allege, that the Indians are less intelligent, they have a right to their property and to their freedom. Vitoria reflected on the duty or right of self-preservation and argued that the duty of selfpreservation leaves an individual free in some cases to accept his own death for the sake of others (Tierney 1997:299). De Soto says that an individual is not bound to preserve his own life at the cost of great pain, for example, by undergoing amputation (Brett 1997:161). In attributing to individuals some choice in respect of their own survival (though not to the extent of approving suicide) these authors are acknowledging a natural right to freedom that is not merely an implication of natural duties. Similarly Sutirez (II. xiv.15-16, vol. 4:32-34; cf. Tierney 1997:306) tried to strengthen the foundations of freedom and the right to use things to sustain life by postulating that these rights pertain to natural law ‘‘positively,’’ that is, not merely in the sense that natural law leaves these open as possible choices, but in the sense that there is a presumption in their favor, so that they cannot be abolished without good reasons.