The Catholic Church – Builder of Civilization, Episode 10: Concept of Rights and Law

Thomas: So where did we get the idea of individual rights? Do I even need to answer that question by now? Fr om the Catholic Church, believe it or not. We’r e going to talk about that, and a lot more, today on The Catholic Chur ch: Builder of Civilization. (music) Welcome to The Catholic Church: Builder of Civilization. I’m Thomas Woods. In all the episodes up through today we’ve been talking about aspects of Western civilization that are indebted to the Catholic Church and yet most people know nothing about this. So it’s time we rectify that. Now today I’ve got something else interesting for you that I think most people don’t know about and they’re not taught in school… but what was the first modern legal system in Europe? Guess what? It wasn’t English Common Law. It was the Canon Law of the Catholic Church, because for the first time you had a single systematic body of law. Canon Law, of course, the Church’s law, became a model for the emerging states of Western Europe, because what in fact happened, is that the Church’s law had never really, until about the 12th century, had never been collected into a single source. It was scatter ed everywhere. If you wanted to wanted to find Church law, there was no book you could go to. You would find aspects of Church law in the Bible, in the Chur ch Fathers, in local councils, ecumenical councils, Papal statements, whatever, but there was no systematic source that you could consult. And that came to an end in the year 1140 when a man named Gracian wr ote The Concordance of Discordant Canons, and this work br ought together and synthesized all these various sources of the Church’s law, brought them together and made them into a single coher ent whole. And in effect by doing that, Gracian showed the Western world how you put together a legal system, how you take disparate elements that are scattered and you bring them together into a single whole that makes sense. Now, this is not always so easy, because when you have so many sources of law, it’s not surprising that sometimes you find contradictions. One source says you should do A, another source says you should do B. When you’re bringing the law all together, how do you resolve that… should you do A or B? And what Gracian and other canon lawyers showed is that you use the idea of natural law to arbitrate, arbitrate between these two alternatives. So in other words, the idea of natural law is that there are certain principles. Even before human beings write up any law there ar e certain principles that we know to be right, that we know to be wr ong because they are written on our hearts, as we learn in the Bible. So the natural law becomes the way you decide, is this the rule we should abide by or is this rule? Natural law could help you adjudicate that. Well, the countries of Western Europe, as they wer e coming out of the feudal period of Europe, they had totally scatter ed legal systems too. They had this kind of law, that kind of law, all kind of directives all over the place, and no coherence. So when they went to put together a modern legal system, what did they consult as a model? The Canon Law of the Catholic Church. Don’t you think that’s kind of interesting? Well, it’s not just the structure of the Canon Law that’s important. It’s not simply that it showed people how to take a lot of different sour ces and put them together into one code of law. That’s important, but it’s also the content of canon law that matters. It’s also, some of the things that canon law taught rubbed off on law in general. For instance, the Church had jurisdiction over marriage in the Middle Ages, and the Canon Law of marriage held that a valid marriage involves the free and informed consent of both the man and the woman. So you can’t force people to get married, you can’t get them drunk and then get them married. You need to have their free and informed consent. Well, what does that mean? Well, in fact, Harold Berman, who’s probably the greatest historian of law in the Western tradition by far… he’s a 20th century historian… Har old Berman says that, “Right her e in the Church’s canon law of marriage emphasizing consent as the heart of the marriage bond,”he says,”here wer e the foundations not only of the modern law of marriage, but also of certain basic elements of modern contract law, namely the concept of fr ee will… that you have to enter into a contract fr eely, the same way you do in a marriage. “We also see,” he says, “the related concepts of mistake, duress, and fraud, because the Church’s canon law of marriage also told us that if people have made a mistake about the identity or some important quality of their putative spouse, that the marriage is also not valid.” So these are basic aspects of all contract law, and yet here they are deriving from the canon law of marriage, not particularly well known. What’s also important is that it was very common, the practice of what we might call “infant marriage” in Western Eur ope. This was a barbarian custom, and infant marriage, of course, is incompatible with the Church’s canon law of marriage, because how can an infant give his consent to a marriage? So it was with the implementation of the canon law of marriage that the barbarian custom of infant marriage was abolished altogether. Now, one of my favorite aspects of all this is that the Church’s canon law coming into being in a systematic way in the 12th century, for the first time is now bringing into Western European practice for the first time since the barbarian invasions, a clear emphasis on the importance of rational trial procedures. Now what do I mean by that? Typically in barbarian modes of law, r eason was not employed to determine who was guilty and who was innocent. Rather, magical modes of determining guilt or innocence wer e used, modes of, of ordeal. So for instance, one barbarian method of determining whether you were guilty or innocent consists of what we might call the ordeal by hot water, and here you’d take the accused person and you’d bring him over to a caldron in which boiling water had, at the bottom, a stone and it was, it was required of the accused to r each into that scalding water and pull the stone out. Then they would bandage his arm, because of course, it’s scalding water and his arm’s not doing too well at this point. Then they’d wait three days. When they take off the bandages, if he has begun to scab up on his arm, then that means he’s innocent, but if he hasn’t yet started to scab up, that is indication of his guilt. Well, who wants to be subject to this kind of pr ocedur e? This is exactly the kind of thing that the rational trial procedures emphasized in Canon Law helps to bring to an end. Now, another barbarian method of determining guilt or innocence is the ordeal by cold water. Well, that sounds fine. Cold water, refr eshing, right? Well, the ordeal by cold water consisted of tying a person’s hands together and his feet together and throwing him in the river and then observing to see whether he sinks or floats. Now, in many versions of the ordeal by cold water, if you float, that is indication of your guilt. You might think that floating would mean you’r e pure, like Ivory soap, you’r e 99.44% pure, but to the contrary, the thinking was that perhaps the divine principle in the water is trying to eject you by not allowing you to sink, so that’s an indication of your guilt. Well again, nobody would want to live under that system. And in fact, that system doesn’t really tell us who’s guilty, who’s innocent. It just tries to end the dispute. Look, this is how it turned out for this guy, he floated. That’s the end of it. Let’s just stop the fight right her e. Instead of pursuing justice, barbarian law simply tried to stop feuding and fighting by just coming up with some kind of an answer, even though it was a totally arbitrary answer… whether the guy floats, whether his arm scabs up. This is exactly what Canon Law was opposed to. So Canon Law, the first modern legal system in Western Europe. But there’s much more to be said about the Chur ch’s contributions here, because as long as we’re speaking about law, we can speak about the concept of rights, that I have a right to life, I have a right to own pr operty, I have a right to enter into a contract or enter into a marriage. I have the right to defend myself in a court of law. All these things are rights. Where does that idea of rights come from? For a long time it was assumed that the idea of rights just sort of spontaneously emerged somewhere around the 17 th century, give or take. That was the standard view. All of a sudden, people thought of the idea of rights. That is no longer a sustainable view, and once again, modern scholars, believe it or not, are coming to the defense of the Church and showing that in fact, the idea of rights is not confined to the 17 th century. It goes all the way back to the 12th century, wher e we see the language of rights beginning. Now, that’s inter esting, but before we get into that any further I think I should addr ess some, I think, discomfort that Catholics may sometimes have with the concept of rights, because I think today we live in a cultur e in which everybody claims that anything he wants to do is a right. “I have the right to do this, the right to do that.” It almost makes rights language seem empty, or even dangerous. So I simply want to clarify, a right simply means that you possess a kind of immunity from invasion. If I have a right to life, it means that it would be wr ong for you to invade my life violently. That’s all that means. It’s a kind of immunity I have against aggression. That, in effect, is what a right is. Now, what interests us particularly is the concept of natural rights. A natural right is a right that you have because you’r e a human being. By nature you enjoy this right. So a natural right is not given to you by a government. It’s something you possess by virtue of being a human being. And it’s a good thing that natural rights are not given to you by government, because what governments give, governments can take away, so the concept of natural rights is what really matters. And the reason that the concept of natural rights can be born in the 12th century is that that was a culture in which the language of rights was already very prevalent, and so the concept of natural rights had fertile soil in which to gr ow. For example, in the late 11 th century, Popes and kings were having a war of words in the Investiture Controversy. Who’s allowed to appoint and install bishops? Well, Popes would speak about their rights and kings would speak about their rights. Lords and vassals in feudal Europe, they have rights and obligations. Medieval towns had rights against the king. So in fact, the concept of rights is embedded deeply in the 12th century. But what develops out of it is the concept of natural rights. Now, how is that differ ent? The right I have as a Pope to install bishops is not a natural right. Not all human beings have the right to install bishops. That’s a right you have as a Pope. A natural right is a right that everybody possesses by virtue of being human. But people who are constantly thinking about rights, the rights of the Pope, the rights of the king, the rights of the lords, the rights of the vassals, the rights of the medieval town, well, these are people who ar e going to start thinking, “Aren’t ther e just rights that human beings possess because they’re human beings?” And we start to see fr om about 1150-1300, this crucial period is wher e we really begin to see the concept of natural rights blossom. So this came out of the heart of the Church. This wasn’t developed by the Church’s enemies. The Church was way, way ahead of everybody on the concept of rights. But now let’s take this idea and develop it even further, because we’re going to be coming back fr om the br eak in a minute. We’r e going to talk mor e about why natural rights are so important, and the Church’s role. So come on back and join me. (music) (music) Welcome back to The Catholic Church: Builder of Civilization. I’m Thomas Woods. Today we’r e talking about Law and Rights, and we’ve seen so far that the Chur ch gave Western Europe its first modern legal system with its canon law. There was nothing like that up to that time. And then beyond that, it’s the Church and Her canon lawyers, her Church lawyers, who begin to introduce the concept of natural rights, which means that human beings, simply because they are human beings, are endowed with certain rights. That is to say, they are endowed with certain immunities, so that they cannot be invaded or aggressed against in these areas of their lives. Now, just before the break I emphasized in particular the crucial period from about 1150-1300, when you begin to see Chur ch lawyers starting to think of all kinds of areas of life as possessing natural rights to them. For example, the right to pr operty, the right to defend yourself in self-defense and also to defend yourself in a court of law, and so on and on… much, much mor e as well. All these things were beginning to be viewed as natural rights that trumped the claims of governments. In fact, as recently as Pope Leo XIII’s encyclical Rerum Novarum, Pope Leo XIII said that, “The right to property is sacred and inviolable,” and that, in effect, means that nobody’s allowed to interfere with your enjoyment of your property. And then in other cases, we’r e talking about the enjoyment of your life or the enjoyment of other rights, but these are things that you enjoy because you’r e a human being and that no government can take away. You have these things before government even comes along into the picture. Now, this is a very important idea. It’s a central concept in Western civilization. And these are universal rights. They’re not rights that enjoyed just by European human beings, but by all human beings. And they’re not rights that are enjoyed only by Catholics, members of the faithful in the state of grace, but these ar e rights that are enjoyed by all people, regardless of what faith they profess. Now, it’s interesting to note that in the 13th century there had r eally begun to develop a very exaggerated understanding of the Pope’s authority. It was argued that the Pope, because he was the Vicar of Christ on earth, in effect owned everything, and individuals enjoyed their possessions only because he allowed them to. And in the 13th century, Pope Innocent IV specifically renounced this view, and said, “No.” He said, “Ownership, possession and jurisdiction can belong to non-Catholics as well.” Because the original argument was that the Pope owns everything and he lets Catholics enjoy property, but he has the right to deprive others of property. And Pope Innocent IV said, “This is complete nonsense. Catholics and non-Catholics alike, regardless of what the Pope believes about them or wants to do, can own their own property, because all rational cr eatures were intended to have the right to property.” So this concept of rights begins to develop over the centuries, beginning with 1150-1300, and it reaches its height and its culmination with people we call the late scholastics, people in the 16th and 17 th centuries, and in particular the scholastics who were teaching at Spanish universities. And I mentioned befor e the University of Salamanca. They taught that not only do Europeans and not only do Catholics have these rights and not only do non-Europeans and non-Catholics have these rights, but also peoples we’ve never heard of before, the natives of the New World we’r e just meeting for the first time. Those people have the same rights to property and rights to life and rights to self-government that we have in Eur ope. And that’s an astonishing claim, because if you look at the history of the interaction of peoples who are differ ent from each other, you don’t r eally see a whole lot of examples of foreign people saying to each other, “Oh, you have the same rights I have because we all have a rational nature and we’r e made in the image and likeness of God, and so we’r e all equal and we have natural rights.” Of course you don’t see that. You don’t see that at all. But this is a liberating idea the Catholic Chur ch brings into the world, that people all enjoy these natural rights equally. Now, that’s long before John Locke talks about natural rights. He’s writing in the late 1600s. This is the 12th century. That’s a major contribution by the Catholic Church. Well, finally for today, my last segment involves an aspect of Western law that has been almost completely forgotten, but the thanks to Har old Berman, whose book I earnestly recommend, Law and Revelation, it’s been resurrected. And what Berman tells us in his book is that if you look at the history of Western law it is deeply informed by religious conviction and belief and religious ideas, and he says that, “If you really want to understand Western law, you have to understand St. Anselm’s Doctrine of the Atonement.” Amazing. What does that mean? If I’m going to understand Western law I have to understand St. Anselm’s view of the atonement, of Christ on the cross and what that all means. Well, as a matter of fact, you do, and I’d like to take the remaining minutes to explain that. First of all, what did St. Anselm, who, as you’ll recall, lived until 1109, what did he have to say about the atonement, and what on earth does that have to do with Western law and the law of crimes in the West? St. Anselm was inter ested to answer the question, “Why did God become Man?” It’s a good question. Why did it happen? Why did God not simply reconcile the human race to Himself from Heaven, just sending down a declaration dir ectly from Heaven? Why does the God-Man come into the world? And St. Anselm tried to answer the question in this way, just using rational principles. He said that, “When human beings intr oduced sin into the world, they, in effect, closed off Paradise to themselves.” Now, God had intended people to enjoy eternal blessed ness, but yet they’ve introduced sin into the world, and so in a certain sense, we can in some sense, say, that we frustrated God’s intention. So how are we going to make this right? And St. Anselm says, “We have violated God.” We have, in effect, committed an injustice against God. The scales of justice are out of balance. The order of justice has been torn by our wrongdoing and that needs to be repaired. And it can’t be repaired by God just saying something to us fr om Heaven. It has to be really r epaired by somebody. We cannot go on. There can’t be any healing, so to speak, until justice has been repair ed. How is justice going to be repair ed? Well, the human race could be punished, and that could repair the damage, but for the human race to be punished enough to make good what has been done to God, the human race would have to be punished to an unbelievable degree to satisfy God’s justice. It’s not even clear we could do it. But even if we could somehow satisfy the demands of justice, the fact is that whatever punishment it would take to us to make good the wr ong that’s been done to God, whatever punishment it would take, would probably also deprive us of eternal blessed ness. So God’s intention would be frustrated again. So Anselm says, “Look, justice itself, justice in the abstract has been assaulted by sin. “How ar e we going to fix that?” God could fix it by declaring it fixed, but He shouldn’t have to do that. Satisfaction should be made to Him. Now, human beings should make satisfaction to God, but they can’t. They can’t offer Him enough that would satisfy such a devastating demolition, in effect, of the demands of justice. So what in fact has to happen for this ever to be healed? There has to be a God-Man whose sacrifice can be punishment enough to, in effect heal the rupture of justice. So that is, in effect, in a r eal nutshell, what St. Anselm has to say about the atonement. He’s saying that when wr ongdoing occurs, the only way we can make good on it is if there is some punishment meted out that is pr oportionate to the offense. Now, in the case of sin, the offense is infinite and the One offended is infinite. So therefore, something infinite has to be done, in effect, to make satisfaction so that this breach of justice can be healed. Well, in that type of cultur e where St. Anselm’s views are being spr ead around, it’s no surprise that the idea of the law of crimes is influenced by this, because people begin to say that if you commit a crime… in the same way that the human race committed a crime against God when the human race introduced sin to the world, if you commit a crime, you’r e not just wronging the person you rob or kill. You ar e wronging justice itself, the same way the human race wr onged justice itself. And we could not make any pr ogress and we could not satisfy justice unless this br each is somehow healed by a punishment proportionate to the crime. Well, likewise, the Western law of crimes that we are very familiar with said, “If you commit a crime against some other party, how are we going to resolve it?” Well, we view it as you not only having wronged that person, but you have wronged justice itself, just as the human race did against God. How ar e we going to reconcile that? How ar e we going to fix that? We have to undergo a punishment that is pr oportionate to the offense, in the same way that, in effect, Christ makes the atonement. And this becomes sort of second nature to people in the Western world, but it comes dir ectly out of St. Anselm’s view of the atonement. So there is fundamentally a religious aspect at the very heart of the Western concept of law. Now, to conclude today, I said a little bit earlier that the concept of rights developed thanks to the Catholic Church and that it reached its culmination in the 16th and 17 th centuries when Spanish theologians began to argue that, let’s consider what the implications of the idea of rights might be. Here we are discovering new peoples in the world. Those people have the same rights we do. We have no right to enslave them. We have no right to depose their rulers and install Catholic ones. We have no right to go to war with them simply because they are different religion fr om what we have, and they have just as much right to own property as we have, because these are natural rights. They’re not just Catholic rights. They ar e natural rights. And ther e we hear the voice of justice in the midst of a great deal of injustice that was visited upon the peoples of the New World. The voice of justice comes fr om the Catholic Church, reminding people ther e is one moral law and one set of rights that applies to everybody. And that’s wher e we’r e going to pick up next time, the internationalization of the idea of natural rights. So join me next time for The Catholic Church: Builder of Civilization. (music)

  1. Sadly, history has shown that the natural rights of the native peoples of the New World were not respected by European powers. What the theologian said was not what the secular ruler did.

  2. Great stuff. Most people take our rights and our civilization for granted without knowing how it came to us. I thought it was cool what he said around 15:30 – "The right to property is sacred and inviolable."

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