Hervaeus Natalis, Marsilius, Ockham, Gerson, and many others give substantially the same definition of a right, namely, that it is a licit power to do something (or a power licitly to do something). Some writers substituted for ‘‘power’’ some other term - for example, facultas (Gerson), auctoritas (Summenhart) - but the meaning is the same. (For illustrations see Ockham, OND 2.127-129, 6.170, 6.269-270, 61.46-50, 65.273-275; Tierney
1997:106-107, 210, 246, 293.) The power to ‘‘do’’ something covers also inaction and claiming (claiming is an action). There is no trace in medieval texts of the idea found in some modern writers that the beneficiary of another’s duty eo ipso has a right to that benefit - for medieval writers a right is a licit power of action, implying a choice to exercise the right. Ockham sometimes gives a more elaborate definition of a legal right: ‘‘a right of using is [a] a licit power of using an external thing [b] of which one ought not be deprived [c] against one’s will, without one’s own fault and without reasonable cause, and [d] if one has been deprived, one can call the depriver into court’’ (OND 61.46-50). Point (a) applies the generic definition of a right as a licit power to do something, (b) indicates the duty other people have in relation to rights, (c) indicates circumstances in which the right may be alienated or cancelled, and (d) is the specific difference of a legal right.
What sort of reality can a right be? A right clearly cannot be a passive power (like the potentiality of brass to become a statue). Neither can it be an active power (like intellect or will, or the power of fire to boil water), since one can have a right to do something without having any causative or ‘‘agent’’ power to bring the act about - we may not be physically able to do what we have a right to do. Several theologians, including Peter John Olivi, John Mair (Maior), and Konrad Summenhart, reflected on the metaphysical status of rights (see Tierney 1997:39-40, 240-241, 245; for Olivi see also Doyle, Boreau). According to Olivi, a right cannot be an accidental essence added to the person whose right it is. This is proved by many arguments, including the following: the person who confers the right may be at a distance, or the concession may be for the future or may be conditional on some future event; no created agent can produce real effects in such ways (Olivi in Boreau:318-319, 326). The only reality in a right consists in God’s will together with the created things he wills to be related by the right and the intermediaries through which he wills the right to be assigned (Olivi:323-324). In denying that a right adds anything real to the right-holder, Olivi seems to be right: possessing a right does not help anyone actually to effect what they have a right to do. It would seem better to say that ‘‘power’’ here means what it means in such expressions as ‘‘legal power’’ or ‘‘constitutional power’’ - that is to say, when someone has such a power and he or she ‘‘can’’ exercise it, his or her action will not be (morally, legally, or constitutionally, as the case may be) wrong. In the definition of a ‘‘right’’ potentia contributes nothing; the word that conveys the meaning of ‘‘a right’’ is licite. To say that someone has a right is to say that a certain kind of action, if they choose to do it, will (ordinarily) be licit, that is, right, not wrong, permissible.
In any case, there is no conflict between the (at least purported) ‘‘objectivity’’ of morality or natural law and the ascription of ‘‘subjective’’ rights. On any view of morality, it will be true that in some cases some persons can licitly do or claim certain things. Morality prohibits some things and commands others, but it also implies that for some persons in some circumstances some acts (at least acts commanded and the opposites of acts prohibited) are permissible: that is, it implies that some persons have a right (a ‘‘subjective right’’) to do or omit certain actions. Some have believed that Thomas was right not to use ius in the sense of subjective right because the ascription of rights to individuals is a betrayal of the objectivity of morals. This is a mistake: there is no incompatibility between moral objectivism and the ascription of subjective rights.
World History
