September 23, 2012
One of the reasons the West is in such deep trouble is that it has allowed “rights” to kill off what’s “right,” as in “that which is right.”
Rights are used to justify a whole series of wrongs, from the declaration of unwise or unjust wars to the condemnation of smokers to a life on the streets.
Rights do not merely kill other people’s liberty; they kill other people.
Rights conflict all the time. Some are more sacred than others, so someone must decide which are more sacred. The case of the Duchess of Cambridge’s topless photographs illustrates this. She has the right to privacy and the press to freedom of expression. Whose right wins?
Your right to this, that, or the other has become sacred, regardless of whether it is right and quite often when it is plain wrong, and regardless of the cost and damage to me.
But the dominant view in the West that rights—nowadays known as “human rights”—are each human being’s inherent, universal, and inviolable private property, is nonsense.
Rights did not even exist in Europe before the Renaissance, and they still do not exist in much of the world. What did exist was objective “right” ( ius ) and “by right” ( de iure ).
“Rights are used to justify a whole series of wrongs.”
Yet the history of Europe and America, indeed of the entire planet, might have been very different had Franciscan monks of the Order of Friars Minor won their titanic struggle in the 14th century to deny the existence of rights in particular with Pope John XXII who was French and insisted—in the cause not of liberty but of avarice—that rights do exist.
The leader of the rebel friars during much of the struggle in the first half of the century was the scholar Michele da Cesena (Michael from Cesena), named after the pretty little Italian city where he was born.
Much of the drama was played out not in Rome, nor even Italy, but in the south of France at Avignon, where from 1309-1376 the seven popes of the Avignon papacy resided and from 1378-1423 two of numerous antipopes.
The Franciscan order, founded by Saint Francis of Assisi in 1209, lived according to the doctrine of apostolic poverty based on the belief that Christ and the apostles possessed nothing. Franciscan monks could not “possess,” personally or collectively, either property or money. But they “had,” or had “use” of, much property and money nonetheless.
Yet how is it possible to “have” or “use” something but not “possess” it, and what does that word “possess” really mean?
The labyrinthine debate that this question provoked was made more poignant because the Catholic Church had become bloated by immense wealth and riddled with endemic corruption. Many believed that Satan had conquered it in Avignon.
The debate led to the suppression for a time of the Order of Friars Minor and the excommunication and condemnation of many Franciscans as heretics. Some were burned at the stake.
But as a result of this theological investigation into the nature of property by 14th-century Catholic scholars, aided by the recent rediscovery of classical Greek and Roman texts, the first notions of subjective rights as the possessions of individuals emerged.
They were not called “rights” at this stage. The key words were the Latin “ dominium ” (mastery) and “ ius ,” which gave “ dominium ” legal force. The Italian translation of “ ius ” was “ diritto ,” which means “right,” not “a right,” and still today is the Italian word for “law.”
In the 13th century, popes had tried their best to fudge the issue by agreeing to vest Franciscans’ property in the Holy See and distinguish between “possession” and “use” and then by banning discussion of it altogether. But the Avignon Pope John XXII (1316-1334) decided to resurrect it in spades, for reasons that remain obscure, perhaps simply because he was French.
In March 1322, he removed the ban on discussion and commissioned scholars to investigate. These duly accused the Franciscans of heresy. Their reasoning was flaky: If the Franciscan doctrine of apostolic poverty was correct, it implied that the Catholic Church could not have possessions either, which was unthinkable.
Many Franciscans, led by Michele da Cesena, refused to buckle. In May 1322, they met in Perugia, now known as the city where in 2011 Amanda “Foxy Knoxy” Knox from Seattle was acquitted on appeal of her conviction for the 2007 murder of her British roommate Meredith Kercher. The Franciscans declared in a manifesto:
In November 1322, he issued a papal bull condemning as heretical the doctrine that Christ and the apostles had no possessions. He canceled the arrangement by which Franciscan property was vested in the Holy See, thus forcing them to accept it as their possession.
The controversy was not over. Ironically, the Franciscans now found themselves arguing that rights did exist: the right of a subject (a friar) to refuse a right imposed on him by a tyrant (the pope). It was William of Ockham , a Franciscan scholar that Michele da Cesena invited to help the rebel cause, who came up with that one. Pope John XXII summoned both to Avignon and put them under house arrest, but they and other friars escaped in the night soon afterward and fled to Italy by boat. They were branded heretics, and the Franciscans lost in the end.
The existence of natural, inalienable, and inviolable rights is denied both on the right and the left. For Jeremy Bentham and Edmund Burke , rights arise from the actions of government or evolve from tradition. For Karl Marx , who wanted to abolish private property, they were bourgeois inventions that would be unnecessary in a communist society. For Friedrich Nietzsche , they were creations of the weak to shackle the strong and destroy liberty.
No right, not even to property or life, is inviolable as Webster’s defines it—“not capable of being broken or violated.”
So rights were invented like Poulet Marengo in 1800 on the evening of Napoléon Bonaparte’s victory over the Austrians at the Battle of Marengo which secured him Italy when his chef had to concoct something special in a hurry but had only the meager results of a local forage to work with.
Rights were not discovered, as was that semi-aquatic, beaver-tailed, egg-laying, freshwater mammal with venomous claws on its webbed feet that detects its prey by means of electroreceptors. I refer to the duck-billed platypus , first spotted splashing about the streams of eastern Australia by explorers in 1798. They thought it was an elaborate fraud, a man-made invention no less—just like a human right.
The bad thing about “what is right,” they say, is that it is prone to degenerate into “might is right” and tyranny.
The great thing about rights, they say, is that they take the tyrant out of the equation. But they don’t, and those who allege such things are simply not right.