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Welcome to the new books network. Hello everybody and welcome back to new books in intellectual history, a podcast channel on the new books network. I'm your host, Alexandra Toyebed, and today I have the great pleasure of talking to Jonathan William Robinson, who alongside Jeremy Meckenenen, Pamela Slaughter and Hike Hara is an editor of the new fantastic volume, Rights of the Margins Historical, Legal and Philosophical Perspectives, published by Brill this year 2020. Jonathan, welcome to the show.
Thank you. Very happy to be here. There's a huge vast expanse to cover in this volume today, but we always like to begin our interviews by asking people to just tell us a little bit about themselves and how you came to the topic of the book. Right.
Well, I think I should start by saying that it was actually the therapy who masterminded this whole project. And so I came to the project through her gracious intervention, I guess, and it may make sense a bit to explain sort of how I came to know her, because that does tie, I think, into why the book is the way it is. And so she first made her name, writing about medieval theories of property and poverty, which came to be an interest of mine. And so I, as a graduate student, began working on William of Ockham, and I wanted to look specifically at his theory of property.
And so I quickly became acquainted with her work, which just worked out quite well, in fact, because her chronological stopping point was right before Ockham's intervention in these debates. And so I needed to get that background, and I got it from her in the first place. And so I think B.R.D. and I both share the same interest in what is sort of a paradoxical fact about mendicant theories of property in the 4th and century, which is that some of the best and most interesting and most robust theories about property rights were done by people whose express value was that they were to have none.
They made a vow of poverty. And in the Francist case, that meant not only a vow of personal property, but poverty, which was common amongst many different religious orders at the time mendicant and otherwise. But also it was a vow of corporate poverty. And so this was novel to the Franciscans, which was the order itself had no property, no rights to any property.
And that was paradoxical in many ways, one of which was they obviously did live in buildings and go to university in many cases, and were not poor in the way that many people can see them and now can see the property. And so that paradox was really what drew me, I think, and I think that was true of B.R.P. as well. And so I don't know, I can speak for her for sure, but I suspect this is true for her as well, which is that when you start working and digging into questions, of poverty and property throughout the Middle Ages, what you see is, sorry, I'm losing my train of thought here, but what you happen to, what you end up seeing is that they end up needing to rely on the language of canon law and especially Roman law, because that's where many of these obvious reasons, property, ideas about property are articulated and necessary, and understanding of how property is acquired and transferred and lends out matters in a big way.
And so although the property debates weren't written mainly by lawyers, for the most part it was done by theologians and philosophers, they had to build on this language for property rights that was already in place in the authoritative text of canon and Roman law. And the other thing that happens throughout the course of the debate is they end up writing about what we now call natural rights, which are rights that are natural and innate to humans, by virtue of being humans, and which are related in loose ways to conceptions of human rights now. But they had to develop a robust theory of natural rights, especially regarding the use of property, because while it may be true that you can live without ever owning property or claiming laying title to it, it would be extremely hard to live without ever using any property. And so both of these discoveries, I don't think were novel, they were novel to me and probably novel to be a chief began early on me to work on these things, but they're not special surprising things that we discovered, it's just something you learn as you start working through this material.
And so I became interested, especially in how this reliance on legal conceptions in legal theory and writings, the lawyers, the juris writings on natural law, especially in the relationship to positive law and other forms and the USKentiyyung law of nations, how all of that inspired this really rich reflection on ideas about natural rights and their relationship to property rights. And I began to wonder how much that sort of reflected back and gets picked up amongst the juris themselves. So you have these theologians, these transitions writing about properties, say, but were these ideas picked up back up by the lawyers in the contemporary, mostly or otherwise. And then the other related thing to that was that I also began to wonder how much did these theories of natural rights, which were quite limited in scope, but how much did they matter on the ground for people who were not actually in the privileged position as a were of being.
A Franciscan, say, who was taken about with poverty and is now laying claim to living a very marginalized life because they have dispensed with the reliance on civil laws to the extent possible, the greatest extent possible. It still seems to me that their lifestyle and experiences would be much different from someone who was involuntarily put into a position of great poverty and need. And so, Vrpi and I both, I think, explicitly wanted to undertake this project. And so, the first thing that I look at that part is how much did these theories ever matter for people other than the authors who were writing about them, because it's maybe true that these ideas get picked up in normative political theory or normative writings about law and property and so forth.
But did they, how far did the rights talk as it were permeated to the edges and boundaries of society. And so that was sort of the inspiration for me for taking on the project. I'm speaking a little bit out of turn by suggesting that Vrpi's own views were shaped by that same trajectory, but I do think that she would have had thoughts like that as she worked on her own research. Because of the natural consequences of looking at what could otherwise be just a very rarefied esoteric theory that didn't have any real application on the ground.
So that's, I believe, but for me that's how we got to where we are. But like I said, I'm guessing a little bit about what motivated Vrpi, who was the mastermind in terms of organizing all the contributors, finding the money, like finding the project and so forth. So that's what anyway said is my take on it. And I think she would agree with much of what I said just now.
And we're definitely going to come back, I think, to some of those contributors and how they became involved with the project. But before we do, you know, so many of these questions that you've just introduced, they're manifested in the book. So could you explain a little bit about what were your really driving motivations behind the book? What was the thesis or perhaps that's a little bit too broad to say?
But what was the push? What was the argument underlying this volume? Right. So for me, it was strong.
Like I was very much interested in teasing out the implications of this debate, the mendicant poverty controversy, which is to generalize, you can say lasted from the public. And say lasted from between 1250, say, in a very approximate way, that's a little bit late, really, but 1250 through the 1320s, William O'Baucom wrote his giant opus, the work of 90 days, and in the early 1330s. And so you have a huge period of time where this debate was like really all the rage in the right circles. And you get a very, in the beginning, the emphasis on the controversy was very much on how is it even possible as a matter of theory or practice for the Francistines to claim the type of poverty that they were claiming.
And the Dominicans were lumped into this too, although their value of poverty is much more in line with traditional vows of poverty that you would find in mnastic orders. And so they didn't include the corporate dimension specifically. That is really unique to the Franciscans. And so the early critics of the mendicant orders put the charge to the mendicants saying how does this work?
Why is this vow of extreme poverty not simply committing yourself or consigning yourself to death, essentially to suicide? Because it's not possible to go through life having nothing. You have to eat, you need to close to some extent, and so forth. And so it just doesn't, like, how does that make sense even?
And so this is where you start seeing the first real exploration outside of maybe legal writing on the question of whether to use other property rights, especially ownership, are necessarily entwined, or are they separable in fact and in practice? And so in some ways it's very easy to make that argument because I can borrow a book from you and I can use it. And as long as I don't destroy it and I return it to you, no problem. But that can't be true, maybe of food, where other fungibles or consumables, as they were called in the debates, things consume by use.
How is it true that you can never have a property right in an apple that you eat and consume and is gone? It can't be returned. And so on the critical side, they were saying if you can't use these things, if you don't have any rights to use them, you can't legitimately use them. And therefore you would be by making a battle with the sort of bowing to suicide, largely, like to take it to the logical conclusion.
And so the Franciscans, especially, but also other authors, Thomas Aquinas, is a well-known name to even non-idealist, he was a Dominican rather than a Franciscan. Although in my opinion, the Franciscans were the more interesting, typically the more interesting figures in these debates, started working on conceptually dividing out use from the minion, which is the Latin word which we can translate. And so in this context, it's like the proprietary lordship. And so sometimes it's also translated as ownership.
Although I don't like that translation as much because you also have the word proprietatus, which looks like it may translate best as property, but really it's property in the sense of ownership. And so anyways, the early debates are really largely about separating out use from proprietary lordship or ownership. And they ended up getting a lot of support from the policy for reasons that may not be purely related to a theoretical agreement with this conception, but for maybe other more pragmatic reasons in that they wanted the Franciscans to be there to work directly for them, because they're not subject to local bishops control, but they answered directly to the Pope. And so there's some probably pragmatic reasons for that.
But in any event, there were several people declarations, people both published in the 13th century, which largely supported the Franciscan position, and allowed for that conceptual division. And it reaches its culmination, I think, in Nicholas III in the 1270s, about 79, I believe, published a bull called XEB Seminate, which is so titled because those are the opening words of the bull. They doesn't have a title per se. And he separates the incidents, if you will, of ownership into five different categories, and two of them are particularly relevant, which is there is a right of using, he said, as well as what he called simple use of fact.
And so what that means, what he goes on to explain is that the right of using is something that the Franciscans do not have. They don't have any right of using. They only have the use, simple use of fact. And so when they consume something, they are actually consuming it without ever having any proprietary property rights in that thing.
And it also goes on to explain that it picks up on another common idea. This is one that you'll see throughout the book. And I'm sure we will talk about later in greater length. The idea that in times of extreme necessity, of course, people do have a right of using things.
And that's a right of using things that comes from natural law, not human law. So that one is not something that is getting renounced, but they don't have any, the Franciscans don't have any positive right of using a positive in the sense of it being a right that finds its sanction in human law, right? So positive in the sense of positive law in the modern sense of that word. And so they are able to use things without ever having any, you know, civil mundane earthly lordship, but they're not necessarily going to be able to, or they definitely cannot renounce natural rights, such as one that would apply in a situation of extreme necessity.
Excuse me. So that is the starting point of like getting to getting a grip on what was at stake in the poverty contours. And what you can see, maybe from that description, is that, oh, here we have a natural right of using that applies, and it sounds like it applies for everyone because if the Franciscans can't renounce it, it sounds like it's somehow innate to the human experience, or the human soul, maybe it's the way it would be conceptualized. That cannot be done away with it.
And so you need to keep it and you need to have it and it will apply. And so therefore, all of us have this right of using in a time of extreme necessity. And so that was one of the points at which you can start saying, okay, well, great, what does this mean for the actual, I use the word actual poor, that may be unfair, but the people who are poor, not that means of a vow, but by fate or circumstance, or birth, who are poor and don't necessarily want to live a life of extreme poverty, the way the Franciscans claim to be wanted to do. And so that then is for me, and I think for VRP, the starting point before getting into these, getting into the research project that we did and then tracking it through the later periods.
And I don't think that concern necessarily applies for the other editors, Pikey and Pamela, whose interests are later and don't necessarily, like, it wouldn't be the same sort of interesting problem that they face in terms of wondering what rights look like at the margins as it were. But since it was VRP's project in the starting point, initially, that was, I think, what shapes the direction we went and shaped the search for people who would be interested in working on this project. And that is why there is a strong emphasis throughout many of the essays, or at least a glancing interest on the right of necessity as it is called. And although that wouldn't be the term used in Middle Ages, that is sort of the term now that is used.
And so, I guess I'm losing the train of my answer here, but that was where we started out. And that was what I was interested in too, when I came to write on my own topic. But I was also, as I said earlier, my interest was also in looking at a specific group of authors rather than tracing the idea itself, which was that I was interested in what the lawyers were doing with this emerging language of natural rights. So, you wouldn't say the right of use and time of extreme necessity was novel to the Franciscans, but they took it to new places and developed that idea.
And so, there is something to be said about whether any of the jurists of the 14th century say the contemporaries of Occam had any interest in these debates and whether it was reflected in their own writings, particularly about war. And so that was, for me, where I wanted to go with it. And I was very curious to see how it would track out through the centuries. So, later centuries that I had always wanted to know, but didn't know when it through the involvement of editing this work, to be sure.
And I mean, the chronological spread is quite remarkable throughout the book, and I think the way in which the arguments, although being so very different, there's a lot of very challenging perspectives on rights and natural law and things like this. They all seem to tie together quite nicely and we see these very clear threads running through. But before we get to the jurists and kind of come back to these questions of necessity, I really just want to hone in from moment on the title of the book. So, it's called Rights at the Margins.
And I was just speaking to a European lawyer earlier who assumed that this was the margin of appreciation. So, lawyers are already taking this in a different way. But I just want to kind of focus on what is meant to really here by rights at the margins, because this is both a content question and in some ways I think he presented as a methodology to be examining rights at the margins. And you know, really I want to know, Judy McClure has put this later in the book so well, and I quote from her and says, she says, the history of rights has been developed at the margins either with regard to the rights of colonized subjects of New World or the War of Europe.
And I think that's a very kind of charge way of looking at this. Could you perhaps reveal a little bit about what you and your other editors and contributors of the volume mean by this time rights to the margins and how you use it? Yeah, so the choice of the title is always maybe not always but sometimes can be a bit of a challenge. And so I think we always knew that the title would be something like this, but it was the title came a little bit late in the project in terms of what the title of the book was.
But the idea was always there. And that idea was largely about looking at how these theories which were developed by leading intellectuals, at least in the Middle Ages, and then tracing that influence down through the centuries, were people of often great privilege. And so this was one of the criticisms of the Mendecan orders too was you say you're poor, but how much you really poor. It's just a theory, right?
You make a vow of poverty and then you write a book that's 600 pages long that explains why when you use something you don't have a property right to it or whatever. And so it can ring a little hollow or many at the time and perhaps many today would say that there's a very obvious distinction between truly marginalize or disenfranchise peoples, so people who are living in great poverty or who suffer December is temporary setback and are now in a position of great need, whereas maybe before they weren't. Where people who, you know, there's a lot of talk nowadays about systemic racism and the systemic problems of that nature and those were sure existed throughout the period that our book covers. And so the women for sure were always had a in the in the Middle Ages were greatly disenfranchised and compares into many men in terms of what they could do and their reliance on male actors in the courtroom even in order to take action to enforce their legal rights.
And then there's also the problem of Middle Ages, you have a question of others isn't done and then there's the rest of the world and the rest of the world is maybe is composed of well, Jews, and then what they would call unfaithful in Fidelis, right? So unbelievers, unfaithful and that would, you know, include the serisms or people who practiced, you know, who were Muslims and then also heretics and heretics are its own special category because they claim to be Christian, but by deliberate choice, they claim to be a Christian. They claim to be a Christian by deliberate choice. They have chosen to believe a set of doctrines that don't mesh with what had come to be Orthodox Christianity.
And so that can take shape in different forms. But the basic idea is that they are not unfaithful. They are people who basically should know better but have chosen to believe some perverse set of doctrines. So there's all kinds of different groups of people who could benefit from a robust and expensive view of what natural rights are, especially maybe the right of necessity.
And we know that as well as today because that's still true and we have seen and I would pass by myself to be honest as a bit of a right skeptic and that skepticism has grown over the years as I work on these projects, ironically. But there is something to be said that the expansion of human rights today has had a profound impact in many ways on certain spheres of human activity and have helped directly or indirectly do away with some of the problems of marginalization and certainly not all of them, socioeconomic rights remain something that many people are skeptical about when it comes to human rights and we are willing to say, you know, people have the right to free speech, but you know, a right to housing is beyond the pale or something like that. So there's when we think about what rights have done in the last century, it seems like they've done a lot or had the potential to do a lot to help people. And was that true back then?
That was the question that we really wanted, I think, to look at. And so what Julia latches onto and foregrounds quite well, I think, is that there is one right or not like magical entities that just make everything better just by virtue of writing above them or saying certain people have the benefit of their rights. And so there's this darker side to it. And I think she's being clever in using that language in sort of two ways.
The first is the obvious one when she talks about the history of rights has been developed at the margins. She's talking first of all, maybe about geography. And so this is definitely the time that I am not perfectly familiar with. But in the time that after the New World is discovered, there is definitely a strong interest in what these earlier debates about natural rights and rights to property mean in the new world, where it seems like they are living in the people there are living in what to European conquerors and settlers seem like a largely natural state.
And so that was interesting to them because a large part of the writing about the origin of property in the, not in the legal literature, they don't typically don't care about these sorts of things. In the philosophical literature, theological literature, about the origins of property, two periods of time really matter for trying to get to grips on issues about whether use can be separated from the minimum, for instance. Those two eras are before the fall, so Adam and Eve before they were expelled from Eden, and then also the time of Jesus and his apostles because they also lived life of poverty and those explicit references that valorize poverty in the New Testament and so forth. So those are two critical time periods, and they are treated sort of as like in a sense a thought experiment, but also truly a period of time that did happen is just they can't necessarily recover exactly what was going on with Adam and Eve in terms of property rights.
There's not a lot of material to work with in Genesis there. There's a bit, but there's not a lot. So it is fertile ground to really think about things, but really in a sort of almost rosian way where you're like imagining what the situation must have been like or should have been like or what people would have agreed to in advance of the advent of human institutions, such as property and government and so forth. And so in the 16th century, especially Spanish or Spanish, or Spanish, and others, I guess, had the opportunity to look at people who were living in what they thought was, and in many cases they're writing from the process.
So they have no idea and so it may be a bit of a thought experiment, but what pre political societies look like and did they have property and what was that like if they did and like they use things but they use things without their by acquiring ownership rights to them. And so the first thing that I think is that piece on in terms of the marginality and then related to that is the Franciscan themselves, and that is Julia's main interest as her first book, which was published a few years ago, was looking at the Franciscan role in the new world, I believe themselves are the product of marginalization. In the sense that Francis, that was Francis's goal. Francis of Assisi really wanted to, he didn't care about the reason property, he didn't care about though was trying to live an authentic life that was as close to the life Jesus and the apostles lived as he conceived it as possible.
And that meant strongly identifying with the ideals of poverty and also humility, which is just as important if not maybe more important for Francis. And so living a life free from although he didn't care about the theory probably at all, but he didn't care about living without ownership rights and there's many anecdotes and the stories about his life, about ways in which he would avoid doing anything that might smack of ownership or taking a position of authority over others and strongly identifying and celebrating poverty of everyday life. And so that was another angle of marginality and the irony really for Julia's essay that is that you have in the Franciscan writers writing about the new world, they themselves were committed to a sense of marginalization through their own value of poverty, but then they used the very same language that was developed by their forebears and also their contemporaries about natural rights and its interplay with property, especially to suppress or disenfranchise in other ways the peoples of the new world and appropriate property from them and appropriate resources and irrigate places to stay to themselves and so forth. And so there's marginality on in terms of like who the authors were and then also geographically and then what brings it to I guess maybe we can say that when we go through the contributions more carefully but that ties into her concern with what she calls the dark history and breaks is these two types of very much tied into these two senses of marginality that I think you can see in her essay.
I'm definitely going to come back to that darker side of rights as it's such a very pressing issue I think at the moment in our contemporary culture but something that I think really lends itself to this kind of conceptualizing of marginality in the volume is the interdisciplinarity of it. You know, you have Julia McClure, for instance, a historian of poverty, you yourself are a medievalist and a practicing lawyer if I'm correct. You know, you've got people like John Salter who's very famous in history of political thought. Could you tell us a little bit about who is contributing to the volume and the very varied fields that they've come from and how that really relates to the world and how they've been doing it.
And how that really lends itself to both the content and the audience really I suppose of the book. Sure, so I maybe we'll start with the audience first because I think our hopes for the audience is of course that there will be is read by as many people as possible and will become the next best-selling beach not book of the year. But it's true that we have people of a very different backgrounds contributing to the book which I do hope does broaden its appeal because I for sure learned a lot. In working on this book and reading through everyone's essays and you do see that it has a very wide reach.
It's the problem in my view. There is actually that once you start doing that you start seeing all the gaps and it would be impossible of course to have truly comprehensive books that wasn't thousands of pages long. But you start seeing, you know, there's coverage for the Middle Ages in the early modern period and then it sort of jumps from the Scottish Enlightenment to the present. And in an ideal world that means the world will allow us to write a longer book even there would be even better range and it would attract an even wider range of the wider audience.
And so my view is that the core audience will be people similar to the contributors themselves and ideally they will find what they need in this book but also look to at least glance at the other chapters because I do think there's good interplay among many of them in terms of recurring themes and so forth. And so I think that's actually the right of necessity I think is the one that really stands out as the most obvious candidate in that regard. But really historians and scholars of the history of philosophy and law I think are going to be the ones that are most likely to gravitate to this and I do like the idea, indeed, of modern day lawyers having more of an interest in these things because there's often in my own practice you deal with situations and cases and legal arguments that I know have a deep history. Some of them I know that there's a deep history but I don't know that history.
And I have that I would like to know more often you don't necessarily have the time but I would love the idea that people who when they think about things especially like in Alejandro's essay which is about how the right of necessity maybe ties into portions of global justice appreciates that this is an idea with a very long pedigree and that doesn't necessarily make her argument more convincing at all because when you dig down deep through the centuries you start realizing that the right of necessity has a very limited scope and that what people are trying to do now with that argument is greatly increases reach. And it's maybe just as well to know that that wasn't necessarily the original way that right was formulated and that helps me think about what work it can do today and how extensive and how broad it could be perhaps. So that's sort of a wide ranging take on what the audience may look like but really I mean I do it is read widely by many people and terms of who we assembled as the range of scholars we do have a good mix. I think it's probably easier to try to group them although there is a degree of overlap in people's interests but among the medievalists I would count myself for sure and be a big and me go and even a and me go and be up to your share an interest in and it's an interest in intellectual history.
And the history of political thought especially like I when I first started working on medieval theories and poverty as I thought of it I did not think of by concern myself the student of intellectual history but I didn't necessarily consider myself a student of the history of political thought but that is sort of the broadest sort of standard category that you could lump what VIP I think and I an eco who is still just a graduate student we're doing in this book and writing on property rights in general I think it falls under that category. Although I guess you could treat it as a branch of say moral philosophy too but it has very practical political implications and is something that really gets dealt with under that branch. And so for me that also meant coming slowly to realize that I needed to learn medieval law and so although I am aware now I study medieval law before I studied study modern law and that was actually I felt like born of necessity because they use all these legal all this legal terminology that oftentimes you think you like this superficial meaning of the word or the most easily English cognate of that word may be misleading and you're not necessarily appreciating. It's a term of art and there's a whole number of meanings and associations related to what seems to be a very simple straightforward term and I have all of us I would say my interest in law ran runs the deepest whereas also for sure her focuses on the history of gender and sexuality and that my mind always means an engagement with political thought as well because that does seem to me at least and I'm definitely not an expert in that area always have to sort of interact with political theory in order to appreciate it.
Where for instance in the case of the else's paper where women have trouble for instance prosecuting their own legal rights and so forth. And then the other big group of scholars I think are those who focus on the early modern era going up to John Salter. And so when for instance is probably the most thoroughbred legal historian of the group of all of us. But G2 is actually very much interested in the influence of the second scholastic and the theologians of the 16th and 17th centuries and their influence on legal writing.
Especially his first book was really about the history of like contract law in that time period and it was very much an interdisciplinary work that tracks and tries to track that precise influence. I think on all these doctrines of contract formation and validity of contract and so forth. And then Julia's I guess maybe more of the historian's historian and her focus as I touched on already is this was especially I don't know if it's changed much since but was on the Franciscans and their role in the global economy and especially on poverty in that time period. And then you'll see his interest is similar to mine and beer peas I would say except just comes later.
But looking at intellectual history and the history of rights especially at the end of the 15th and the beginning of the 16th century he wrote a book on Pongran Sumanhar two figures also in his own essay on the possibility of animal rights in Sumanhar two writing and then victorious writing. And then I guess I and John come even later still he is focuses very heavily on Samuel one Puthendorf as is his essay in this book. And then maybe John's interests are sort of later still in the sense that I think he's written really extensively on people like Hume and Smith but then has become interested in their intellectual backdrop and has since or recently been used as a term loosely I guess because I think he started writing about Roshas a week being first years ago now but reaching back into other it's ironically I guess he's become interested in lawyers such as Hugo Roshas and their influence on people like Hume and Smith. And then finally rounding out the group is Pamela one of the editors of the volume whose focus is really on modern topics but on the same themes that I think there be an eye for instance interested in which is on law and politics and moral philosophy broadly construed.
And then her special interest is I think how all of those fields relate to ideas about human rights as opposed to I suppose natural rights. Modern term use human rights but the same basic ideas I think just updated for today's world and then Alejandro has some related concerns I think to Pamela. I think Pamela was the one who brought her on board in fact and her focus is especially on human rights thinking and how and on what I understand like in this essay on human interaction human rights and global justice issues but then more broadly I think she's interested in things like environmental ethics as well because her essay in this book patches on there's the unfortunate climate change we seem to be experiencing in greater quantities every day is directly relevant to her argument that the right of necessity may have a very important role to play or should it play a very important role in how we deal with some of these global crises and so I think that covers everyone. It is quite a wide range of them.
So let's then just dive into that first section so this is I mean really where your own chapter comes to play and this first section of the book is exploring rights in the poor law and it really examines how different medieval and very early modern jurists can see poverty and poor relief so I was wondering if you could just tell us a little bit about really focusing on your own chapter here which explores how 14th century jurists like Andrea and Bartos of Saffrato and Baldist Obadis how are they intervening in the debate over mendicant poverty. Yes certainly so when I started so when I started this project or when I came on board of this project I was actually in the had just started a postdoc where I was taking a heart this this realization that in order to really understand these topics studying medieval law should I should do more of that and so I did end up doing a postdoc in Washington DC under scholar by the name of Ken Pennington who's one of the leading scholars of the medieval medieval history and so my intention was always fairly broad in that I was interested in how generally the discussion of rights as it were in property rights in these debates was getting reflected back if at all I had no idea when I started out into the writings of the jurors. On the existing authoritative texts of Roman and cannon law so writing commentaries on the digest of the code were the institutes and novels and so forth and so not necessarily a great place for free thought and wide ranging debate but they also wrote other in other genres that would allow for the potential of seeing that sort of interest come back shine through in their own writing if there was any sort of influence by people like Bonaventure and Coinas or later Occam or Scotus and so forth. And so then I ended up connecting with their P who I knew by reputation at that point but not personally and when I became involved in this project it was sort of the perfect opportunity to take a very narrow focus like my interest was broader at the time but you can't writing an essay of course you need to keep it somewhat constrained by a word count and so I thought okay this is a great chance to look at what Johannes Andrei was a canonist who was a very close contemporary of Occam.
So Occam was who had first written about and he died in 1347 and Andrei died I think in like 1348 very basically the same time and he was a canonist especially and then there's Bartles who ended up he was also a very close contemporary of Occam except he made it Occam died before the Black Death came and Bartles survived that and passed away in like 1357 or something so again very close contemporary and these are two of the great like two of the most important jurists of the Middle Ages of the 14th century without question in terms of influence and reach and like the profundity of their thoughts I would say and so on so I thought these are perfect candidates for looking at seeing who around the same time is Occam who would have been aware of these debates because they were important individuals in their own rights and wouldn't have been ignorant of something that had been raging for so long and in fact Bartles had written a tract about the mendicants about different cisgens not specifically on these topics at all and so it was not helpful for the purposes of this essay and then Bartles had a student named Baldus who trained as became increasingly common and received his degrees in terms of his degree and received his degrees in both canon and civil law and so he also seemed like a good candidate because one he would be and did write in both traditions and also he came a little bit later so he passed I think he died right in the 1400s I remember correctly and so he would have been a generation after and so maybe what Occam for instance had to say in the middle of the middle ish first late part of the first half of the 14th century was too fresh say for his contemporaries but maybe Bartles would have been able to keep coming later he would have had a greater opportunity to absorb and digest and utilize some of those ideas and so that was my thought but I didn't know what I would find and it turns out that it doesn't seem like this language of rights, natural rights or like this increase emphasis and sometimes people talk about subjective rights and so forth doesn't seem to play any great role in their writing which is not to say that they were unaware that there were poor people in this world or that there was this doctrine about how necessity has no law and what that implications might have for an impoverished person's ability to lay claim to someone else's property in the world. So that's the way that someone else's property in order to save off imminent death that seems that they took the problem and answered it in maybe what would be more traditional language they didn't have recourse to any of these writings and in fact you don't see even references to in many cases to the people's which were incorporated into canon law proper in their own writings and so for instance Nicholas that Nicholas the Thirds Bull from 1279 did become part of one of the official books of canon law and other writings which I haven't touched on did other goals didn't they weren't incorporated into they were still official people decorations on topics where they weren't modified and put into a collection that was officially promulgated by book but some of these writings were and so there is the opportunity for these categories to play these categories of thought and the five incidents that Nicholas identified including the right of use to please effect and so forth to be included in their discussions but when it comes to writing about the involuntary core as it were that doesn't seem to be the case and so I was a little bit disappointed I guess to find that because I was maybe been more interesting or maybe easier for me to absorb it if it was in the their discussions were couched in language I was already familiar with but that doesn't seem to be the case and so when I tried to answer whether this language of rights had any found its way back into the commentaries of the legal tradition the answer was sort of no but that isn't to say that they didn't have answers to these problems or that they were even unaware of these distinctions in terms of types of rights and so forth and so in fact what you see Andrea is a perfect case of a perfect example of someone and he's not the only one where at one point he will list out a whole list or list of the list list of a list of different meanings of the word us which can in the two simple translations for us is either law or rights and this is why sometimes there's this big debate about when a subjective ideas of rights come in which is largely I think misunderstood on that point for the medieval period at least but anyways he you list some 21 possible meanings of us and use there you do see ideas of like an objective that us is enshrined and framed by like an objective morality or that it's conceived of as a type of power virtuous power or can refer to ownership or lordship and so forth and he too recognizes that in times of necessity it might be that people have to take actions for which would otherwise be condemned but in those particular circumstances they're not to blame and so you can think of defensive necessity which you sometimes see today in Canada there's such a doctrine and the idea is that you aren't that if you raise a successful defense of necessity what you actually are accomplishing is one of two things you're either justifying that action and that could be for instance you know speeding to a hospital to save a died in time person there's no question you're guilty of the offensive speeding but that it is actually not just you're not just excused from that violation of breaking the law that people would typically say you were justified in the circumstances to do that deed and so it can be just a category and that's in a way better so you're saying that it might be a crime in different circumstances in this case there's you know it was what needed to be done and it's actually a good thing that you did it. In other cases necessity can be merely exculpatory and that would be saying that the action is wrong and it's no one is going to say that it was good that you did that thing but you may not be held to blame for it and so that can be where a crime is committed but you had no ability to recognize that your actions were criminal or something like that so that's like an example would be found not criminally responsible for a crime maybe right you still become guilty of the offense someone maybe was killed but you did not appreciate to a sufficient degree how your action was wrong at that time and so you are guilty of it but you're not held criminally responsible and so that would be exculpatory and you can see in the writings of the medieval juris and in André for sure as well people answering that question is what does poverty excuse or what does necessity excuse if you do something like take other people's food say in order to stave off death is that are you justified in that action or are you merely not held to be blamed for like you're not going to suffer a penalty for it because although it's wrong to do you had to do it and so you do see different answers and some people say that I think what Andrea says is that because he relies on this notion that punishment should not follow where there's no underlying fault or cause which is itself a very interesting doctrine in the juris and he connects that to the idea therefore that necessity can make the illicit he says at one point which sounds to me like that's a justificatory answer to that problem rather than merely exculpatory but other people are even more explicit you'll see I'm trying to blank on the name now but one person writes he was at Johannes Nutanicus another canonist influential canonist who says that it is poverty can be an excuse or necessity can be an excuse and so that sounds very much exculpatory and then another canonist Bernard Parmensis I think says no actually what's happening in those times necessity is the core merely taking what's already there's and that's drawing on the idea that in times of necessity all things are to be shared another a sick maxim let us know in the text of the medieval use community so the Roman and canon law text and so you see different answers to that problem and Andreas seems to be falling more into a justificatory can't but notice that it's not a language of rights he's using right what he's saying is when you're in deep trouble if you were to do this is okay in the circumstances but that's not he could have said in the same breath you know like this is what we call you know this is our natural right of using that doesn't apply when it's being abridged by other positive laws about property ownership and stuff but in times of necessity necessity has no law and you're able to deploy that right and take what you need to in order to survive so you could have but he doesn't quite go that far and so that's what I mean when I say that doesn't seem like these authors were using the language of rights that they might have used if they were to draw on this earlier debate and to some extent contemporary yesterday and then Bartles and Baldus they're writing more fall into the Roman law tradition and so their interest is largely on they also recognize that maximum that necessity has no law what they really bring to the fore in that point and was implicit in a lot of these essays but not necessarily drawn up to the extent that it might be which is that typically this doctrine of necessity is a time limited thing so you are only in extreme need for a short amount of time right it's not it is not a right that it's you are just poor and so every day you would be relying on the principle of extreme necessity in order to go around and ignore existing property arrangements and rules it's more for so that would be an example I think sometimes I've seen a distinction between vertical and horizontal inequality and vertical inequality is sort of the difference between the rich and poor how big is that gap and that's one that we care about today but in the middle ages and it seems to me in the early modern period that interest they recognize of course that there's a difference between the rich and poor but that they're accepting of that difference and maybe think even it's like part of the natural order of things and it's not something that should be disrupted which is sort of the lesson I take from Windsor essay in fact about allowing these basically noblemen who fallen on hard times special leeway is that you wouldn't grant to other people as like a way of like safeguarding the political order which is that you don't want a bunch of noblemen suddenly getting overturned and treated as if they were just you know regular poor people or something but the other way to think about is horizontal horizontal captures the idea that like relative to your baseline starting point you have either become wealthier or in the case we're interested in poor and that is a temporary potentially a temporary change and that is where the right of necessity as it comes to be called seems to apply most and so what it does is it alleviates a short term problem and helps prevent people ideally from falling you know dying in the streets but it doesn't actually change things in a major way or in a systemic way or in a long term way it's just a short term solution to what is hoped to be a short term problem and so even the Franciscans didn't argue like automatically it's not that he only made use of his natural rate of using things most of his use was without rights without positive rights or legal rights but use things by the permission on the order and that was a revocable permission that could be withdrawn and anytime and if it were withdrawn you were just that's just too bad no matter fact the permissions weren't withdrawn and so that struck people as some hollow theorizing in any case but the idea was that wasn't that he that Franciscans lived only by the right natural rights at all it was that most of their rights most of the time they were living by license a revocable license or a privilege a revocable privilege and so what bring you back to my essay Bartles and all this really helped sell that point that this is a short term problem that we're actually talking about and they don't frame it either in terms of rights but they frame it in is they pick up on this idea of a ordo keratatus order of charity and this is the idea that you sometimes see today reflected in the slogan that charity starts with one cell which sounds maybe a little bit oxymoronic or paradoxical but the idea was that you had to first take care of your own needs before you can be in a position to help others and the ordo the order is that it's not that you give charity indiscriminately to all who ask but you actually have to like organize and think about who is deserving of your charity and that is you yourself first of all and then your family next and neighbors and people you know and it extends outward and sort of concentric circles maybe to eventually to strangers and people you don't know and that was maybe a pragmatic view to take when much of society was largely at the level of subsistence only or most subsistence or not much of assistance so there wasn't great surplus maybe to be had and it also stresses the point that a lot of the obligations we have so it's not trained in rights but it's trained in terms of duties it's the duties we have to our family and that includes environmentalists goes through the example of what you do when you have the means to support a son who just should be working but doesn't and there is no other social security net really for that person to fall back on and you as the father or the mother say oh by natural law you have an obligation to support that person so again it's not really brain in terms of rights at all but that isn't to say that they didn't appreciate that there was a need to help people in need it was just lawyers were especially the canon is very concerned with like being able to distinguish between those who deserved as they thought help and those who did not and people who deserved help particularly people you knew at some level because you knew whether they deserved it and so it was easier to discern but the problem with strangers is that you don't necessarily know that because they're not your neighbor they're not a family member and that became an increasingly important problem I think as urbanization grew and so those kinds of questions really vexed the canon is especially it seems from what I've been reading it seems like the canon is focused on these concerns more than the civilian lawyers did but the reference to the that of the 10 years in the milder forms but writing after that maybe had some profound implications and impacts on urban living he makes the important points that there is something to be said at the civic like city level that you don't have masses of poor people roaming the streets in need and you know begging for charity and so there's something to be said that the city should maybe take on has some role to play which is pretty novel definitely guilds at the time would take on rules of charitable giving as part of their duties in the city and so forth but this wasn't framed that way it was framed more at the city level and it seems like that is a move towards recognizing that the state has some role to play in alleviating you know the worst of poverty as it were so that was sort of what my essay focused on and so it wasn't about Rakes at all it was more on existing language of duty and charity This is a really great example isn't it of how we have rights without the rights talk to use that fantastic phrase and how it has as much longer trajectory that we can still be mapping in spite of what is becomes really ingrained language and discourse that we can't seem to break away from because it's so ingrained in our contemporary understanding of rights and law and how we participate in society but I'd like to just jump ahead a little bit if I might to the third section so this is when you go from rights at the margins to those who are beyond the margins and it really looks at those individuals who were actually being excluded from rights discourses and you've already mentioned some of the groups here but they were kind of very much less visible in terms of historical marginalization so there's groups such as widows and animals even and heretics could you just give us or give listeners a very broad overview of how these groups were perceived and what they as being beyond the margins really tell us about the formation of rights and very diverse historical interpretations there of the right yeah so one of the interesting things and I'm glad we were able to get some papers that do this are those that went really to the ends and beyond of the margins as it were because that's a good way of testing sort of the theory like how expensive and encompassing is this theory of rights really how what where can it go and what can it do and what can it not do and so the easiest example I think in that case is you see his paper on animal rights because he picks up on and again I don't know the details of the debate so as well as he for sure but from his essay and what I understand is that there was actually let me back it up so he looks at the question of animal rights and there is actually some authoritative legal text that relate to that that serve as the basis for he looks at Victoria and that on that the same heart and what they have to say about animal rights but there is going all the way back to an early account of what us natural is comes from the digest and there's a passage in the digest which is repeated basically verbatim in the institutes that basically says that us natural and here we usually want to translate this as natural law is what nature teaches all animals so this is right at the very beginning of the digest and it's when my view you get different accounts in these legal texts of what natural law is or is not or is not and it's not necessarily that they're like definitions but competing definitions but like an account of what it can refer to which is not quite the same thing to my mind but here in this case what you have is naturalize what nature teaches all animals and it goes on to say because that us is not exclusive to the human race but to all animals which are born on land and sea and in the air and then it gives examples of what it means and it will talks as from it so from the US naturally comes the conjunction of male and female which we call matrimony from it comes appropriation children from it comes their rearing and then it's concluded for we also we see all other animals even wild beasts are reckoned to have knowledge of this law so there is this idea that has always existed from the formidable people from the timeless way because this is from the digest itself not just a recent pronouncement of some author but this idea that natural law applies to not just humans but to animals as well and so this is the backdrop of UC's paper and interestingly in canon law this similar idea there's a similar idea that rifts on this passage but leaves out the part that natural law is something that is common to all animals but it does talk about matrimony and appropriation and rearing of children and so forth and so that might be an interesting topic for another paper another day but UC's paper then looks at these specific examples that's a backdrop and then UC looks at these debates about natural rights and so they hear Victoria and UC agree that right is like a moral faculty or a power that enables someone to do something and this is falling into the realm of what Michel Vile would call the subjective right with great deal of disdain but so in heart in his definition and in his discussion allowed that animals do have a sort of dominion over the things that they do over their actions especially like eating food and so forth maybe building a nest maybe or something like that but Victoria denied that animals could have it and so I don't know if he would have maybe known that there were these two different definitions and maybe he was more inclined to follow the canonistic take of what naturality is in terms of matrimony and procreation and so forth but they don't the point is that some people did envision animals having rights now these are rights that are about sort of rights of self mastery which ties into sort of a will theory of rights which is the idea that to have a right is to basically make you a sort of mini sovereign over that specific domain that the right deals with that's a far cry from talking about animal rights in the sense that animals have the right maybe not to be eaten or killed or treated in humanely and so forth but it is I guess a step in that direction but it wasn't universally agreed by any means because here you have two rough contemporaries and you're seeing both sides of the debate being defended to the real extremes of marginality I guess you would put this paper there on Christine de Pison who is a very prolific author in the late 14th and early 15th century and who had some experience trying to deal with the law like to engage in lawsuits that is which for a woman was well not impossible you typically needed someone to represent your interest in court and so she ends up writing about problems of widows who are often people who have fallen on poverty and are typically included in the category of what are known as personal name isra bilays so wretched people as it were widows are prime classic classic people that fall under that category amongst others you know to be students or people who have fallen ill or who are really old and so forth and they're wretched in the sense that they are disempowered in some way it's not necessarily always about poverty but it can be about disenfranchisement as well or like an inability to earn a living because you're ill to and feeble to actually go out and work so she looks at specifically what the role the law's role is in terms of helping the needy and defenseless and specifically she's writing as I understand it to women so it's like to help them understand what they can and can't do and learn and how to successfully engage with civil life especially in this context in the courts and her view is in draw she draws on the coin is to formulate this view but that the law is there to help protect the defenseless so not exactly language of rights in my view but definitely some reflection on what the role of the law is what its purpose is and in a very you know helpful way because oftentimes people treat it in a very sterile manner and it doesn't really get you very far in terms of other than you know that you need to have procedural justice in litigation or that you know we need strong rule of law safeguards as if that itself is virtue or an end unto itself but rule of thinking of specific of the protection of private property in that sense so protection against government interference in your property and so on and then the other essay I think that really touches on this is vrp in Nicolas essay which looks at the this is a very medieval problem but what do you do with people who aren't Christians does your membership in you know Christianity matter in terms of what kinds of property holdings you are allowed to have as a matter of justice and so this is particularly relevant in an era when the crusades were still ongoing and at the root of it you have the classic two positions are state out by contemporary canonists one who becomes pope innocent the fourth in the thirteenth century very very very near contemporary cardinal host theensis both of whom are very influential and so innocent the fourth takes a position that you know it does matter and infidels cannot hold dominion so property rights legitimately so you can have like a de facto usurpation or something where you actually hold property but that's not to say that your title to is just or would be recognized in that way the instance takes a different view which is that they are entitled to hold property and then you can imagine quickly see how these two views are going to reverberate down through the centuries and so you have ockham who would side who spent a lot of his time writing against the popes of his day saying that that sort of thing doesn't matter and that of course you know unbelievers would be able to hold property on the other side in people like jals of Rome and John Wycliffe so jals of Rome is before ockham and Wycliffe comes at the end of the fourteenth century after him who take a very strong view that your proprietary lordship needs to be justified in some way and all justification has to go stretch back to God at the end of the day and if you're not able to draw that chain all the way back then you can't really legitimately or with justice with true justice hold property and then you can see I think that those sorts of ideas would then have a role to play potentially in the debates about the peoples of the new world what kind of property rights they might hold or not hold as it were and so great let you go I'd like to pick up actually on that point of coming back to this kind of colonial aspect because this is addressed in the final part of the book and this dark side of rights that we've already mentioned it really is although it's focused on in this more contemporary section of the book it does feed through even in chapters such as your own such as those which are medieval in content could I just ask you to very briefly because I realize how much about your time we've taken up already and just to reflect a little bit for listeners on how that dark side of rights is really explored throughout the volume not just in a contemporary sense but almost in the sense of this trajectory that goes throughout the chapters and although you're exploring very different concepts of rights and rights regimes and not even rights as we talk about because we don't have the language with which to talk about rights as rights how are these all connected and what threads run through the volume on specifically the darker side of rights has it worked? I'm with you I will try to be brief I realize now that we have been talking for some time when I was thinking about that issue the dark side of rights I reminded me there's I couldn't find it again but I remember reading once Joseph Raz of contemporary legal I spoke about the rule of law as the virtue of the rule of law I think he said is something like the virtue of a knife which is to be sharp and so it's not to say that it's it can cut both ways as I think is the idea right and so the same problem with rights I think is true and Julia's essay is good at bringing that out especially which is that you can use the language of rights to suppress and disempower people perhaps just as easily as you can use it to empower people and she does give examples of Franciscan authors who in a sense know very well what it's like in theory maybe only but to be you know impoverished and on the lowest run of society and not actually not exercise any legal rights being able to exercise any legal rights who then in the new world were able to appropriate things for their own use on the basis that you know in times of necessity all things are common so I guess we'll take this or the right to hospitality which is also not something we've touched on but it does tie into concerns about poor relief that I was talking a bit about in my life that I was talking a bit about in my own essay and that was specifically the problem of strangers and how do you recognize whether that's someone who deserves help or not but the right of hospitality according to Julia was also used in a broad way that ultimately involved the appropriation of natural resources and claiming land or space for themselves whether people liked it or not so you can see that and that's happening even while in Europe people are clamping down on vagrancy and not the language of rights and extreme need does not seem to be making any headway in terms of the poor of Europe in the 16th century being able to get out of their own poverty and in fact are finding new restrictions maybe even on their ability to beg and secretly in that in that informal way so that's some of the way that you see the darker side of rights I think for my interest really one of the things that I've come to appreciate more as I said earlier a little bit of light skeptic is that sometimes rights and duties are often like opposite ends of the telescope and so when you can talk about you can frame an issue in terms of rights or you can frame an issue in terms of duties and that's not universally true I don't mean to suggest all rights of opposite corelative duty at all but oftentimes there is a degree of core relativity there and it seems to me that maybe some of the better ways to look at some of these issues isn't through the lens of rights of all which leaves people maybe with rights that are hard to realize you know you could have a right to acquire property but if you don't have ever given the means to acquire it the right is going to be fairly hollow whereas when you look at think of it in terms of duties then maybe the ability to what it does is it sharpens the point that we have a role to play in the care and assistance of others in a way that rights don't because rights are often conceived of in negative terms which is giving people the freedom from interference and positive rights which actually require others to do things are often viewed with a great deal of skepticism as unworkable or what have you so the right to vote we grudgingly give people and governments take the steps maybe to allow people to vote although maybe not in the upcoming US election that seems to be something that is being stymied a little bit right article there to be written exactly right and so the but when you conceive of it in duties then what it stresses is the same thing it's still potentially achieving the same goal it's just recognizing that you know we're in this together in a way that rights can be atomizing and leaves the responsibility to obtain the substance or the goal or the object of that right to the person with when realistically there are structural or systemic barriers in place that leaves the right really really hollow but if you frame it in terms of a duty then there is that sense of more of a sense maybe of the need to help realize the objects of those duties and so it's just not saying like everything should be conceived of in terms of duties or that rights language has no place at all it's done or mark will amount of good I think in many ways but especially on socioeconomic rights I think it's a great thing to do with that.
And so you know economic rights I wonder which are typically positive rights I wonder if that's the way to go and it's the same with the right of necessity in the context of global justice historically that right was so narrow in its scope and so focused on time limit fixing major but short term problems that can it really be expanded to do the work of say a right to migration and that's something that everyone has maybe again but then maybe again if you don't leave the right itself is not realizable because of other structural barriers in the way it's a right that it's a right that sit hollow and not actually really get you very far whereas maybe if we bring it in terms of like the duty to help those on an island that is going to be overwhelmed by the rise of sea levels maybe we should be saying they have a right to migrate but we should say we have a duty to help them find a place to not drown in and so that's sort of maybe going a little bit beyond the darker side of rights but definitely there is the rights language for sure lends itself to misappropriation and abuse and I don't think anyone's essay better than Julia's helps bring that out but it is implicit I think maybe in other ones too the fact that wins essay about giving noblemen the ability to defer their loan payments sound as you know maybe a decent thing to do but it didn't extend across all levels of society and so you can see maybe there that there's like it's giving people an extra chance to that other people aren't given and so if you're not careful about how the right is being applied in existence to whom it's being extended it can be powerful in justice to well on that very thought provoking note Jonathan I'm going to thank you for being on the show today it's been an absolutely fascinating discussion the book is rights at the margins historical legal and philosophical perspectives Jonathan thank you so much for being on the podcast thank you it was a real pleasure to be here and I want to thank you on behalf of my other editors to who couldn't all join us I think it would have been too much but it really was really a great pleasure safe Ontario means more police and prosecutors making sure my car doesn't get stolen it means building new jails to keep criminals behind bars and it means there's no need to worry when I play at the park you're making every corner of Ontario safer to make all of Ontario safer that's how we protect Ontario for all of us learn how it Ontario .ca slash Safer Ontario paid for by the government of Ontario