Ask a typical college student today who “invented” American democracy and you’ll most likely be told “the Founding Fathers, of course.” If you’re lucky, this typical student might then go on to tell you a bit more, namely, that the historical roots of the American republic are to be found in the political traditions of early modern England, or that the Founders were inspired by the philosophies of ancient Greece or Rome, or that American democracy was only made possible by the revolution in social and political thought we call the Enlightenment. What you’ll never hear from any student, though—and I know, because I ask them every year—is the truth: America’s experiment in ordered liberty is ultimately the product less of these factors than of ideas and institutions born during what most people still think of as Europe’s backward, superstitious, and oppressively Catholic “Middle Ages.”
American democracy, of course, does not derive entirely from late medieval political thought and practice. The contributions to early American political development mentioned above by my typical college student are real, if too often over-stated and shorn of longer-term historical context. What is striking, though, in both popular and scholarly accounts of the birth of the American republic, is the extent to which the late medieval contribution to this process has been photoshopped out of the picture. Whether the specific issue is consent of the governed, limited government, rule of law, constitutionalism, rights, or even separation of church and state, the prevailing conceit is that we moderns—especially we Protestant moderns—invented it. Or, rather, re-invented it, picking up where the ancient Greeks and Romans left off over a millennium-and-a-half ago, before the collapse of the Roman Empire and the onset of what some still insist on calling the “Dark Ages.” It is as if nothing relevant to the modern democratic project happened between the death of Marcus Aurelius (AD 180) and the writings of John Locke in the late seventeenth century. As I shall argue below, however, much of consequence did happen during those centuries. Indeed, I will argue, it was during this epoch that all the major elements of democracy as we know it were actually invented.
Source of Historical Amnesia
Precisely why this cultural amnesia should have come to afflict the Founders—and why it should continue to afflict us—is an interesting question. My own view is that it is at least reasonable to conjecture that the “repressed memory” of the medieval roots of American democracy is at least in part attributable to both Enlightenment prejudices regarding the medieval era and those of the Reformation regarding the Catholic “Dark Ages,” both of which are always at least subliminally present in both the popular and scholarly cultures of the West. To proponents of both the Enlightenment and the Reformation, the medieval period was framed as a time of “darkness”—for Protestant reformers, the darkness of papalism, error, and corruption; for Enlightenment progressives, the darkness of clericalism and (religious) superstition—and contrasted (unfavorably) with the new age of religious and scientific progress. The effect of this was not merely to portray the Middle Ages as a transitional period between classical (and biblical) antiquity on the one hand and either the Reformation or Enlightenment on the other, but to invest the period with precisely those qualities or characteristics most loathed and feared by both Protestants and early modern humanists: religious superstition, papalism, ignorance, political decay, and economic stagnation.
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Simply put, although they sought to advance different political agendas, both Protestant and Enlightenment reformers had ample reason to portray the medieval world as both radically different from, and radically inferior to, the worlds of the revived classical or biblical antiquity they were seeking to create. Against such a background, it is perhaps not surprising that both the Founders and their British forebears consciously or unconsciously suppressed the medieval and Catholic roots of their “reformed” and “enlightened” forms of political thought.
Even though they repressed these memories, however, the reality is that the Founders drew from an essentially medieval and Catholic intellectual wellspring when they both drafted the Constitution and articulated and subsequently elaborated its underlying political philosophy. So what intellectual raw materials were to be found in this wellspring? Or, put slightly differently, what were the pre-modern, pre-Enlightenment, pre-liberal, pre-capitalist, and pre-Reformation ideas that ultimately made possible the American experiment in ordered liberty?
A complete answer to this question, of course, would entail tracing the evolution of all the various elements of American democracy (separation of church and state, constitutionalism, limited government, parliamentary democracy, rule of law, civil rights, etc.) across a number of distinct sites of political theorizing (Roman, canon, and common law jurisprudence; philosophy and theology; polemical writing; etc.) from the early Middle Ages until well into the high modern era. In this brief essay, however, my goal is somewhat less ambitious: to demonstrate the plausibility of such a comprehensive genealogy by tracing the evolution of just one of the key elements of the American democratic tradition (i.e., natural rights) at one particular site of theorizing (i.e., jurisprudence) during a relatively limited period of time (the period between the recovery of Roman law in the later Middle Ages and Hugo Grotius’s articulation of a recognizably modern rights theory in the early modern era).
Source of American Natural Rights
The conventional account of the evolution of the American rights tradition, of course, traces the birth of that tradition back to John Locke (1632-1704), the Glorious Revolution (1688), Thomas Paine (1737-1809), and the framers of the U.S. Constitution. According to this account, political and philosophical developments first in early modern England and then later in colonial America gave rise to a radically new understanding of rights. The pre-modern understanding of rights—as articulated in the Magna Carta, for example—was that they were conditional claims made by the occupants of particular social roles (vassals, for example) vis-à-vis other actors occupying different social roles (lords, to continue the example). The radical reworking of this understanding in the modern era, or so the conventional account would have it, is that they were redefined by quintessentially modern thinkers such as John Locke as unconditional claims to inalienable liberties (namely, life, liberty, and the pursuit of happiness) made by all persons against all other persons, individually and collectively (in the form of the state).
In recent decades, however, historians have called this modernist account into question. Leo Strauss, for example, as long ago as the 1970s suggested that the roots of the modern rights tradition could be traced to the writings of the political philosopher Thomas Hobbes (1588-1679). Others, like the historian Richard Tuck, have traced the birth of the modern concept of rights even farther back to writings of the French theologian Jean Gerson (1363-1429). Still others, the French scholar Michel Villey, for example, have located the origins of the modern idea of rights still farther back in history, specifically in the work of the English philosopher and theologian William of Ockham (1287-1347).
In fact, however, both the traditional and early revisionist accounts are wrong. The modern notion of a universal right as a subjective, natural and inalienable faculty actually has roots that extend back far beyond Hobbes, Gerson, or even Ockham. Indeed, as the medievalist Brian Tierney has conclusively demonstrated, the modern concept of rights has roots that stretch all the way back to Latin Christendom’s twelfth-century renaissance and the new political concepts that emerged out of the intellectual ferment of that era.
According to Tierney, the seeds of this concept were first planted in the mid-1100s when Gratian’s codification of Church or canon law, known as the Decretum (c. 1140), began circulating through the legal and intellectual circles of Latin Christendom. Fascinated by Gratian’s work, which quickly became the standard reference work on canon law, jurists at the great law schools of Bologna and elsewhere set about interpreting, clarifying, and elucidating its arguments. Tierney’s thesis is that, in the course of this world-historical intellectual endeavor, canon lawyers birthed three novel ideas that were to prove crucial to the evolution of the modern concept of rights.
First, in attempting to reconcile several discordant senses in which ius naturale (natural right) had been used in the Decretum, the canonists developed a radically new understanding of the term. Reading Gratian’s concordance against the backdrop of their feudal, rights-based culture, they came to think of ius naturale not as the objectively right, correct, or just ordering of society (natural justice) but rather as a subjective right or faculty inherent in all human beings (natural rights). Put slightly differently, whereas the concept of ius naturale employed by the pre-Decretum canonists had understood natural law to consist largely of commands and prohibitions, the post-Decretum canonists came to understand it as also entailing a kind of permission for people to act in their own interest. In making this move, the later canonists implied—even if they did not explicitly argue—that there was a sphere of individual liberty in which the individual person was free from the fetters of both princely authority and positive law.
Second, as Tierney also argues, at first this conceptual shift merely provided a new language for thinking about ius natural in terms of the natural rights of persons rather than simply the naturally right organization of society. It didn’t take long, however, for medieval jurists to begin to draw on this new conceptual language to enumerate certain specific rights. Between 1150 and 1300, for example, they defined the right of the poor to the necessities of life, the right to self-defense against physical assault, the right to legal self-defense or due process, the right to private property, and the right to vote in duly constituted elections. All of these rights were said to derive from natural law and to inhere in the individual person. As they were not granted by earthly powers and dominions, they were also believed to be inalienable.
Finally, the twelfth-century jurists not only enumerated specific natural rights, they also unambiguously universalized these rights. Grappling with the question of whether these newly enumerated rights belonged only to Christians or whether they belonged to Muslims and pagans as well, in the mid thirteenth century Pope Innocent IV declared that the rights to own property and to create temporal governments “were made not only for the faithful but for every rational creature.” While this question would arise again when the Europeans encountered another radically different civilization beginning in the later fifteenth century, Innocent’s declaration effectively universalized rights as they had come to be understood in medieval Latin Christendom.
By the year 1300, then, the canonists had developed a language of natural rights; enumerated a limited list of specific natural rights; and come to understand that these rights naturally inhered in human beings as such and were therefore universal (i.e., not specific to certain persons, social roles, or classes). As Tierney argues, however, at the turn of the fourteenth century there was no certainty that this new understanding of rights would persist—and certainly no indication that it would become one of the defining currents of Western political thought. Indeed, quite the opposite. Given that it had emerged in the context of a very specific set of legal and political disputes, it was far more likely that as these disputes waned or evanesced so, too, would the ideas they had spawned.
Franciscan Poverty Dispute
In the fourteenth century, however, a new controversy arose that provided the context within which the doctrine of universal, subjective natural rights was both perpetuated and further elaborated. This was the “Franciscan poverty dispute”—a conflict between the Franciscan Order and Pope John XXII over the Franciscans’ claim that, like Christ and the Apostles, they owned no property. Previous popes had accepted this doctrine, arguing that the Roman Church owned all the goods of the Order and merely granted the Franciscans the right of “bare factual use” of these goods. For reasons that remain unclear, however, in 1323 Pope John XXII rescinded and condemned this doctrine, promulgating a bull that declared instead that henceforth it would be heretical to argue that Christ and the apostles owned no property. In a subsequent decree, he further proclaimed that there could be no just use of anything unless there was a legal right to use it, thus directly refuting the Franciscans’ claim that they could simply use something without legally owning it.
In 1328, the Franciscan philosopher and theologian William of Ockham launched a polemical counterattack against Pope John and his anti-Franciscan decrees that ultimately culminated in the Breviloquium, the first rights-based political treatise in Western history. Ockham challenged John’s rights claims on two grounds: First, contra John, he argued that there could indeed be just use of something in the absence of a legal right to use it. Pope John had decreed that there could be no just use of anything without a legal right—i.e., a right conferred by human statute—to use it. Ockham responded by reviving the canonistic argument that every person had a natural right to use those things necessary to sustain life. The Franciscans, he argued, had renounced their legal rights to own and therefore use goods. But they had not renounced their natural right to the necessities of life. As Ockham concluded, given that such rights were derived from nature and not statute, these natural rights could neither be renounced by the Franciscans nor rescinded by the pope.
Second, Ockham argued that these natural rights provided an unqualified defense against the absolutist claims of the papal monarchy—and by extension all absolutist claims by all monarchies. In effect, Ockham explicitly established for the first time in Western political thought the idea that a zone of autonomy existed around every human person—a zone within which no human prince had the authority to either command or prohibit. Within this zone, he argued, every person had, by natural right, permission to act as they saw fit. Significantly, Tierney argued, this understanding of human freedom or autonomy was not, as some have suggested, based on his innovative “nominalist” philosophy. Rather, it was rooted in the by-then-well-established juristic tradition of natural rights theorizing.
By the turn of the fifteenth century, then, the intellectual and legal tradition of natural rights pioneered by the medieval canonists had become thoroughly established in Latin Christendom. As Tierney argues, however, by this time the tradition had also become exhausted, perhaps even moribund. Late-scholasticism was mired in hopeless abstruseness, focusing on questions and issues that were divorced from the practical realities of civil and canon law. As a result, the robust and practical doctrine of natural rights that had emerged beginning in the twelfth century was reduced to a kind of scholastic gamesmanship, the object of which was to display cleverness and erudition rather than to address concrete political issues in ways that might drive the evolution of the doctrine. In conjunction with the emergence of Renaissance humanism—a body of thought that looked all the way back to antiquity for inspiration, ignoring the medieval rights revolution altogether—these developments in scholastic thought threatened once and for all to consign natural rights doctrine to the dustbin of history.
Natural Law Tradition Revived
The medieval rights tradition was spared this fate, however, as a result of the world-historical European encounter with Amerindian civilization beginning in the late fifteenth century. In the course of the sixteenth century, this encounter prompted European thinkers to ask, and seek answers to, a number of profound ethical and political questions: Did the Amerindians have a right to own property? Could their property be taken from them? Did they have a right to self-defense? Did they have a right to govern themselves? Could they be enslaved? Needless to say, there was no consensus among Europeans regarding these questions. Some, like Juan Ginés de Sepúlveda, followed Aristotle in arguing that the Amerindians were barbarians and therefore natural slaves who had no title to their property and no right to self-government.
But others defended the Amerindians, in the process perpetuating and further developing the medieval rights tradition. The Spanish philosopher, theologian, and jurist Francisco de Vitoria, for example, drew on canon law and Catholic theology to construct an argument that Amerindians were human beings who, by virtue of their human nature, possessed the same rights as Europeans: the rights to property, self-government, and liberty. Similarly, Bartolomé de las Casas drew on the medieval canon and civil law traditions to make the argument that Amerindians were not barbarians in the Aristotelian sense but rather human beings who were entitled to the natural rights of life, liberty and property. And there were others, like Francisco Suarez and Robert Bellarmine. Collectively, the works of these primarily Spanish thinkers both revived the natural rights tradition and made it the principal idiom of political discourse in the sixteenth century.
The final link in the chain connecting the medieval Catholic rights revolution to the modern tradition of rights theorizing is, perhaps ironically, the Dutch Protestant jurist Hugo Grotius. Grotius, of course, is best known for his work on Just War theory, De jure belli. At first blush, this would seem to have little to do with the issue of natural rights. But a major focus of Grotius’s book deals with the question of “just cause”—that is, the question of when it is lawful or justifiable to go to war. Drawing on the works of medieval canonists and theologians, Grotius explored this issue extensively, ultimately concluding that a war was just if it was fought to defend or assert natural rights. In the course of doing so, he gave new life to the idea of natural rights, powerfully influencing modern rights theorists like John Locke, who in turn powerfully influenced the Founders of the American republic.
The idea of natural rights, then, was decidedly not a modern invention, but rather a medieval one. It was perpetuated and elaborated as Catholic jurists grappled with various crises and contingencies from the twelfth century onward. And, as with natural rights, so, too, with many of the other ideas and institutions that define American democracy. Whether the specific issue is consent of the governed, limited government, rule of law, constitutionalism, or even separation of church and state, the historic roots can be traced, not to the early modern era, but to the Middle Ages. Moreover, these roots were neither capitalist, nor liberal, nor secular. Rather, the origins of these ideas and institutions are to be found primarily in Roman law and in the canon law and theology of the Roman Catholic Church.
Editor’s note: Pictured above is “George Washington Addressing the Constitutional Convention” painted by Junius Brutus Stearns in 1856.