Rights and the History of Civil Society. Problems of a Liberal Order

The notion of rights dominates modern moral and political thought to an extent rivalled only by 'democracy' and 'liberty'. Together these make a trinity of liberal doctrine across otherwise wide theoretical divisions. This is a modern phenomenon. Historically the idea of rights is deeply ambivalent and has by no means always been a tool for what in modern terms are liberal causes. The project is to complete a major book that provides a detailed analysis of how a modern idea of rights grew out of the theories of natural law that flourished in Europe after the Protestant Reformation and especially in the seventeenth and eighteenth centuries. From the late-scholastic restatements of natural law, the book will trace the dramatic renewal and transformation of natural law that began with Hugo Grotius and Thomas Hobbes and ran as a mainstream of moral and political thought to the revolutionary era and Immanuel Kant. Often considered a 'movement', natural jurisprudence was in fact a multifarious development of different juridical themes in moral and political thought, including ideas of rights. However, contrary to common versions of the history, rights were rarely the primary focus; they tended to be engulfed in much broader theoretical and practical concerns, and when they were brought to the fore it was as beneficiaries of other pursuits. It was in fact more the circumstances than the doctrinal content that determined whether or in what way rights were a significant factor. As a consequence, the history of rights has to be written with considerable attention to the context in which specific rights doctrines were articulated, while the theoretical continuity often has to be provided by attention to the wider genre of natural jurisprudence.

There may be an appearance of paradox in this story. If rights seem integral to the modern world, natural law has distinctly old-fashioned connotations. Yet, historically they were intertwined until very late, and the demonstration of this will confound both the friends and the foes of modernity for whom its hallmark was individualistic notions of rights and contracts. Since the parties to the social contract are bearers of rights, any re-interpretation of rights doctrine has implications also for contractarianism. In the present work, it is argued that in fact social contracts were eminently, and most commonly, combined with a less than individualistic conception of rights since the parties to the contract were issued with a host of other moral qualities in order to dispose over their rights. It is this background morality that is accounted for by natural law which had a tendency to make the assertion of rights into statements about duties, or virtues, by reference to some supreme common good for humanity or the moral creation in general.

Such latitude in natural jurisprudence meant that it had the ability to adapt to neo-republican ideas about civic virtue and public duty, but also, eventually, to be an important broker for the new ideas of commercial society in the high and late Enlightenment. This adaptability, which may make natural jurisprudence a laughing-stock for modern philosophers, was a central reason for its historical importance. It was in effect an attempt to overcome the inherited tension between the political and juristic constructions of rights -- the rule of the will and the rule of law. It is a major concern of my book to bring out the full significance of this through a historical investigation into the role of rights in the historical origins and cultural maintenance of a liberal political order.