New Episode of The Josias

Podcast onRights
NOVEMBER 22, 2017NOVEMBER 22, 2017 / EDMUND
WALDSTEIN, O.CIST. /

TheJosiasPodcast
EpisodeIII:Basi Share

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For the third episode of The Josias Podcast,

(https://thejosias.com/2017/11/22/the-josias-podcast-episode-
iii-basic-concepts-right-rights-and-the-law/)we had Pedro Jos
Izquierdo on to talk about rights and law. (And also to hear him
call the drafter of the current Austrian Constitution the Jedi-
Master of positivism).

We wanted to have Pedro on, because earlier this year,he wrote a

brilliant piece atThe Josiason right and law
(https://thejosias.com/2017/05/16/notes-on-right-and-law/).To
me it was the blogpost of the year. I found it tremendously
illuminating, because it claried for me the relation between the
meaning of right (ius) that St. Thomas uses, and the meaning
common now as in human rights. (I remember one of my
classmates in college wrote his senior thesis on this question, and
I was more confused after hearing his arguments than before).

St. Thomas usesiusin the sense of theobject of the virtue of

justice.That is, most basically, thethingdue to another. For
example, the bread that a baker owes someone who has paid him
for bread. The modern sense of right is of amoral power,that
iswhat someone ought to be allowed to do without interference.As
Pedro shows, the modern sense is an analogical extension (made
by Baroque Schoolmen such asSurez), and originally means that
if a thing is ones right, then the power or licence that one has to
do certain things to or with the thing is also due to one, i.e. ones
right. For example, if a piece of bread is someonesius,then eating
the bread is also hisius.That is, he oughtto be allowedto eat the
bread.

But in the Enlightenment a fatal switch takes place. The analogical

extension ofius,right as a power, comes to be seen as theprime
analogate,and objective right, the object owed to the other, as an
analogical extension. The Enlightenment theorists hold that
something is due to another,becauseof the inviolable moral power
that he has of demanding it.Rather thanthe power being an effect
of his being owed something.Henri Grenier explains the
consequences with his customary concision:

If objective right is understood as right in the strict sense, it

follows that subjective right, i.e., right as a power, is measured
by the just thing, according to conformity to law. Moreover,
since law is an ordinance for the common good, it follows that
the whole juridical order is directed to the common good. But,
if subjective right is understood as right in the primary, strict,
and formal meaning of the term, it follows that the juridical
order consists in a certain autonomy, independence, and
liberty. For subjective right is not measured by the just thing,
but the just thing is measured by the inviolable faculty, which
is a certain liberty.Therefore, according to moderns, the
juridical order is directed to liberty rather than to the common
good. This gives rise to errors among moderns, who speak of
liberty of speech, liberty of worship, economic liberty,
economic liberalism, without any consideration of their
relation to the common good. (Moral Philosophy 960).

Greniers passage shows how the relation oflawand right is also

reversed by the reversal of the order of rights. For the moderns,
law is a limit on rights for the sake of preserving them. That is, it
limits the moral power to do things for the sake of preserving the
maximum moral power of doing things in the greatest number of
persons. Thus, for example, it limits the power of taking stuff
away from others, in order to increase the power of amassing
possessions. The end ultimately is for each person to be able to
exercise there will (whatever its object) to the maximum extent
compatible with others doing the same.

But on the classical view, law is an ordinance of reasonfor the

common good.And it is theratio iuris,that is it is the measure by
which one judges which things are due to whom. Thus, in the
ancient conception, everything goes back deliberations of reason about
the common good, and what serves it. So, for example, the
distribution of private property will be regulated with a view to
what serves the common good. Therefore, the law can put limits
on the acquisition of wealth, if it judges that too great an
acquisition damages social peace. Or it can forbid certain kinds of
contracts or loans that are judged to be prejudicial civic
friendship.

On the modern view, on the contrary, everything nally goes back to

individual will. This is (of course) grounded in two understandings
of the good. On the ancient view the good is desiredbecause it is
good,at it found primarily in thecommon good.But on the modern,
desire or will is primary, and things are only called good because
they happen to be desired or willed. Hence the primary realities
grounding society in Enlightenment thought are themoral powers
to do what one wills,i.e. rights in the sense with which we are
familiar.

The Opalescent Parrot

3 thoughts on New Episode of The

Josias Podcast onRights

1. Olaus Ouisconsinensis
NOVEMBER 29, 2017 AT 4:18 AM
A presentation on rights by a man whose surname is Spanish
for left.

REPLY EDIT
2. Pingback: Sancrucensis:Homeric Memento Mori-et varia
Titre du site EDIT

3. blah deBlah
DECEMBER 2, 2017 AT 10:32 PM
yew dinn bildat!

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