Vetera Novis Augere: Studia i prace dedykowane Profesorowi Wacławowi Uruszczakowi, edited by Stanisław Grodziski, Dorota Malec, Anna Karabowicz, Marek Stus (2 vols. Krakow: Jagellonian University Press, 2010) 2.845-851
Between Naturalistic and Positivistic Concepts of Human Rights
Natural rights has become the phrase that cannot be spoken in the United States Supreme court. In the past ten years the phrase has appeared six times in Supreme Court decisions. None of those six citations, however, declares that a right established by the law of nature should be recognized in that building on the corner of First and East Capitol streets. Every citation was a reference to older positions or ideas. Although the Ninth Amendment to the American constitution provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” recent Supreme Court justices have not shown any inclination to launch themselves too far into the briar patch of unenumerated rights that might be found in the long history of European jurisprudence on natural rights.
Law professors have had no broader vision.
Constitutional scholars at a conference at the
The Supreme Court has preferred to find its justification of unenumerated rights in penumbras created in the justices’ minds by the amendments of the Constitution or by creating awkward legal neologisms like “substantive due process.” The reason for their reluctance to recognize unenumberated rights that have long been a central to European jurisprudence for two millennia is the steely grip that John Austin has had on American common law and all legal systems, whether common or civil law. Austinian sovereignty has trumped two-thousand years of jurisprudential thinking about rights. The relegation of unenumerated to the Intensive Care Unit of the hospital of law also reflects a Balkanization or compartmentalization of thinking about law and rights in modern English and American jurisprudential thought. This Balkanization recapitulates and confirms the categories of “law” and “right” in our language. Unlike the words in English, the word for law and right in Latin and in most European languages is equivocal. Depending on the context, “ius,” “diritto,” “droit,” “derecho,”“Recht,” and “prawo” mean law, the legal system, and right. English is the exception. In English, the concepts of law and rights are separate categories, each word having its own cluster of meanings. A reader in French, German, Italian, Spanish, and Polish is constantly reminded that the word law means more than just “the principles and regulations established by government and applicable to a people;” it also the power of persons to exercise or vindicate rights. English and American law dictionaries currently used in law schools ignore rights entirely in their definitions of law. In order to excavate “rights” from the word law, we must turn to older, pre-John Austin, English dictionaries where we find definitions of law that encompass the “rights and obligations of states, of individuals, and of artificial persons and local communities among themselves and to each other.”
Thinking about rights can be shaped by our
language but also by our historical perceptions about how and where rights
emerged in Western jurisprudential thought. If we presume that rights are a
creation of the democratic, constitutional nation state, were invented to
protect its citizens, and were graciously bestowed on the citizens of the
nation state by a benevolent Leviathan, we might assume that rights are not
universal but unexpected byproducts of the transition from the ancien regime
to the modern world. In this construct, citizens have a greater claim to these
rights than non‑citizens. The nation state and it alone becomes the repository
and defender of the rights of its citizens.
On the other hand, one may see rights as being a web of norms that
transcends the present, as having deep roots in the past, and as having an
universal validity and applicability extending far beyond the Bill of Rights,
the amendments to the Constitution, and the decisions the Supreme Court of the
There is another aspect to this present construct: the content of legal education. Law schools have been Balkanized as well. Before the reign of legal positivism, teachers in the law schools used the same textbooks in their classrooms and used the same language of instruction: Latin. This lingua franca guaranteed that the focus of the law was universal and not particular. Liberated from the linguistic borders that limit intellectual horizons today, students could attend any law school. One consequence of the schools’ curriculum was that they did not teach local law. The result of this work was the development of a common European jurisprudence. Jurists, lawyers and judges has the same intellectual background, carried the same intellectual baggage, and were guided by the same fundamental notions about rights.
The Supreme Court has not always been stuck in
the confining swamp of legal positivism.
“Th<e> profoundly positivist attitude towards fundamental law, however, is a relatively modern invention. We tend to forget that the same John Marshall who wrote Marbury also wrote Fletcher v. Peck, in which the written constitution vied with unwritten principles of natural law for pride of place among the sources of fundamental law.”
There is no doubt that the Founding Fathers of the
From my point of view this narrow view of constitutional rights has led to lamentable decisions. Take the rights of due process. For centuries jurists had considered the rights of defendants to be summoned, present evidence, call witnesses, and to be tried publicly in a courtroom with legal counsel to be an absolute right founded on reason and the Ius naturale. Every human being had an absolute right to a fair and just trial. There were no exceptions. There were no groups of human beings that had greater or lesser rights of due process. Treatises on procedure proclaimed these rights until the eighteenth century. The jurists repeated again and again the proverb: et etiam diabolo, si in iudicio adesset, non negaretur (even the devil himself must be given his rights of due process). This fundamental right was not plucked out of the Old or New Testaments; it was not found in Christian theology. Rather it was the result of several centuries of reflection on the central role that courtroom procedure should have in a just and equitable society.
essay, by way of another example, I would like to
explore another right that was long considered a fundamental right of the Ius
naturale that never made it into the enumerated rights of the Constitution:
the rights of indigenous peoples.
The first juristic discussions of the rights of indigenous, non-Christians arise during the thirteenth century. Two distinguished canonists adopted two contrary positions. Pope Innocent IV held that the infidels’ had rights; Henricus de Segusio (Hostiensis) denied that this was so. Pope Innocent IV maintained that the government of the infidel was just, while Hostiensis, asserted that there was not any legitimate secular power outside of the Christian Church. During the next two centuries Innocent IV’s opinion became the common coin of European jurisprudence. However, it was purely theoretical coin. There were no practical situations in which the rights of non-Christians became a legal issue until the beginning of the fifteenth century.
Its appropriate for our meeting today that the
very first European jurist to charge the barricades in defense of
non-Christians was a Pole and an extraordinary jurist, Paulus Vladimiri (Pawła
Włodkowica). Paulus was born in
Brudze during the 1370's.
He studied law at the universities of
Paulus wrote a series of tracts at the Council of Constance to defend non-Christians within the Polish-Lithuanian realm. He drew upon two centuries of jurisprudence that established the natural rights of indigenous, non-Christians to their political power, jurisdiction, and property. By the law of nature, he argued, all men are free. Non-Christians can possess political power and property because God endowed all rational creatures with those rights. Paulus asserted that non-Christians can be punished or attacked only if they violate the laws of nature. The Teutonic Knights can never claim to wage a just war against peaceful pagans because it is against Christian Roman law, canon law, natural law, and divine law. Finally, Vladimiri concluded that pagans cannot be forced to convert to Christianity. Christians who supported the Teutonic Knights and participated in their campaigns against peaceful pagans commit mortal sins. It is worth noting that these norms that the jurists created to define and regulate the relationship between Christian and non-Christians did not depend upon a specifically Christian doctrine or theology. Reason more than theology was the creative force behind these norms of the Ius naturale.
Vladimiri was vilified at
The discovery of the
The names of these Spaniards
who carried on Vladimiri’s fight are
While Spanish conquistadors plundered the
Did John Marshall know of Paulus Vladimiri,
McCreary County, Ky. v. American Civil
Liberties Union of Ky, 545 U.S. 844 (2005) [Display of Ten Commandments];
Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) [Pledge of
Allegiance]; U.S. v. Lara, 541 U.S. 193 (2004) [Double jeopardy]; Alden v.
Maine, 527 U.S. 706 (1999) [State sovereignty];
Saenz v. Roe, 526 U.S. 489 (1999) [Right to travel]; New Jersey v.
 The Random House Dictionary of the English Language: The Unabridged Edition (New York: 1967) 812.
 E.g. Black's Law Dictionary with Pronunciations, edd. Joseph R. Nolan and Jacqueline M. Nolan‑Haley (6th Ed. St. Paul: 1990) 864‑865, gives a purely positivistic and institutional series of definitions and never mentions rights of individuals or groups.
Bouvier's Law Dictionary and Concise Encyclopedia, ed. Francis Rawle
 Ibid. 409-413.
Fletcher v. Peck, 10
“Natural Law in the States,”
Sherry, “Natural Law” 172, citing the work of
Thomas B. McAffee, “The Original Meaning of the Ninth Amendment,”
Columbia Law Review
90 (1990) 1226‑1227; Helen K.
Michael, “The Role of Natural Law in Early American Constitutionalism: Did
the Founders Contemplate Judicial Enforcement of “Unwritten” Individual
 Sherry, “Natural Law” 173.
 Kenneth Pennington, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Rivista internazionale di diritto comune 9 (1998) 9‑47 and “Innocent Until Proven Guilty: The Origins of a Legal Maxim,” The Jurist 63 (2003) 106-124.
 For a biography of Vladimiri and an edition of his works, see Ludwik Ehrlich, Pisma Wybrane Pawła Włodkowica (3 vols. Warszawa: Instutut Wydawniczy Pax, 1968).
 Hartmut Boockmann, Johannes Falkenberg der deutsche Orden und die polnische Politik: Untersuchungen zur politischen Theorie des späteren Mittelalters (Veröffentlichungen des Max-Planck-Instituts für Geschichte 45; Göttingen: Vandenhoeck & Ruprecht, 1975) 225-238.
[14a] See my "Bartolomé de Las Casas and the Tradition of Medieval Law," Church History 39 (1970) 149-61, revised and published in Popes, Canonists, and Texts 1150-1550 (Collected Studies Series 412; Aldershot: Variorum, 1993).
 Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150‑1625 (Emory University Studies in Law and Religion 5; Atlanta, Georgia: Scholars Press, 1997) 339-340.