1 Introduction
For the past thirty-five years, John Witte has been actively involved in the study of human rights and religious freedom. He has directed several major international projects and conferences on âreligious foundations of American constitutionalism,â âChristianity and democracy in global context,â âreligious human rights in global perspective,â âthe problem and promise of proselytismâ and âwhatâs wrong with childrenâs rights?ââdeep collaborative explorations of human rights and religious freedom featuring a range of interdisciplinary, interreligious, and international perspectives. He has contributed a number of edited volumes and journal symposia on these topics and related ones.1
Witteâs more significant and enduring contribution to this topic, however, has come in a series of monographs: Religion and the American Constitutional Experiment; Godâs Joust, Godâs Justice; The Reformation of Rights; Church, State, and Family; Faith, Freedom, and Family; and The Blessings of Liberty. Witte also has published several articles that anticipate his sequel volume, A New Reformation of Rights: Calvinist Contributions to Modern Human Rights.2
2 The Intrinsic Significance of Witteâs Contribution
The nineteenth-century English poet Gerard Manley Hopkins introduced the term âinscapeâ into the English language.3 What Hopkins called the inscape of a thing was its particular distinctivenessâthe distinctiveness of a particular tree, for example, of a particular melody, of a particular plowed field. He writes of the grief he felt when a tree in his garden was cut down and its inscape destroyed.4
Some things are bland; there is little if anything distinctive about them. Not so for Witteâs writings on the topic at hand; taken together, they have a very definite inscape. Let me describe some of that inscape, beginning with the genre of his writings on the topic.
3 The Genre of Witteâs Contribution
The general topic of human rights and religious freedom can be treated in a number of different ways. Oneâs treatment of the topic might have the character, for example, of advocacy, arguing for the importance of human rights and religious freedom. Though there are eloquent passages of such advocacy in Witteâs writings, passages in which he vigorously engages naysayers of various sorts,5 his writing on the topic does not have the overall character of advocacy.
One could also treat it as a philosophical topic: what are human rights, how are they grounded, what is religious freedom, and what accounts for the right
Again, one could treat the topic as one of intellectual history: what have philosophers and other theorists in the Western intellectual tradition said about the nature and grounding of human rights in general, and about the nature and grounding of the right to religious freedom in particular? That, too, is not how Witte treats the topic; he is not, by profession, an intellectual historianâthough, in this case too, there are many passages in his writings in which he presents and engages what theorists across the centuries have written on the topic. He is, de facto, an intellectual historian.
Primarily, though, Witte is a legal historian. He treats the topic, human rights and religious freedom, primarily as a topic in legal history. What interests him is the way human rights in general, and the right to religious freedom in particular, have figured in the concrete, often messy reality of constitutions, charters, compacts, laws, judicial decisions, and the like in the West. The subtitle of his recent book, The Blessings of Liberty, is âHuman Rights and Religious Freedom in the Western Legal Tradition.â
In the introduction to The Blessings of Liberty, Witte, explaining that he writes as âa legal historian, not a Christian theologian or philosopher,â says: âFolks in my legal discipline operate closer to the ground than many high-flying human rights theorists at work today.â7 This makes it sound as if theorists, such as philosophers, deal with the same matter as legal historians, the difference being that whereas philosophers fly high over the terrain, legal historians fly low. That seems to me misleading. Later in the same passage, Witte writes: âWe legal historians ⦠dig out and document how, over many centuries, our legal forebears gradually developed, by fits and starts, an ever wider set of rights categories ⦠to map and deal with the complex interactions between and among persons, associations, and authorities.â Exactly. But philosophers donât describe this same terrain from higher up. They do not join historians in dealing with the ânitty-gritty, concrete complexity of the law on the books and law in action.â Only when giving examples to illustrate their theories do they take note of âthe law on the books and law in action.â8
Let me move on from these comments about the genre of Witteâs contribution to highlight some of the salient features of its content. It is my impressionâI have not counted the pagesâthat over the course of his prodigiously productive career as a legal historian, Witte has written more extensively about human rights in the Western legal tradition than about any other aspect of the tradition. And what strikes one at once, when reviewing his essays and monographs on the topic, is that, almost always, religious freedom figures prominently in the discussion. It would be possible to write about human rights in the Western legal tradition and say little or nothing about religious freedom; some writers have done exactly that. Not so Witte.
Why is this? Is it because he happens to be personally interested in religion? Witte identifies himself in his writings as a Christian. Is it because he is a Christian that he so consistently brings religion into the picture?9 Is it a matter of personal interest on his part? Is it like someone who has taken, say, a personal interest in freedom of assembly and who then expresses that interest by writing essays and monographs in which freedom of assembly figures prominently in their history of human rights?
For the past thirty years I have been writing on the history, theory, and law of human rights and religious freedom. My main arguments have been (1) that religion has long been a critical foundation and dimension of human rights; (2) that religion and human rights still need each other for each to thrive; and (3) that robust promotion and protection of religious freedom is the best way to protect many other fundamental rights today, even though religious freedom and other fundamental rights sometimes clash and need judicious balancing.10
In short, itâs not just Witteâs personal interest in religion that accounts for the prominence of religious freedom in his writings. Itâs the subject matter itself that accounts for that prominence. Writing about human rights in the
Parenthetically, itâs not only when discussing human rights that Witte highlights the importance of religion; the same is true of his treatment of other segments of legal history. Witness, for example, his main books on family and marriage law: Sex, Marriage, and Family Life in John Calvinâs Geneva (Eerdmans, 2005), The Sins of the Fathers (Cambridge, 2009), From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (Westminster John Knox Press, 2nd ed., 2012), The Western Case for Monogamy over Polygamy (Cambridge, 2015), Faith, Freedom, and Family, and Church, State, and Family.11 The role of religion in the Western legal tradition, both as a shaper of that tradition and as shaped by that tradition, is a scarlet thread that runs throughout Witteâs work.
When one reviews the totality of Witteâs writings on human rights and religious freedom, another feature that jumps out as distinctive of its content is the combination of fine-grained detail in some of his monographs with a big sweeping picture in others. Witte is a master of both the granular and the global, of both the small and the large. Three examples of Witteâs gift for deeply researched, detailed studies of some segment of the Western legal tradition are these: The Reformation of Rights; Law and Protestantism: The Legal Teachings of the Lutheran Tradition (Cambridge, 2002); and Religion and the American Constitutional Experiment. Three examples of his gift for comprehensive surveys are Godâs Joust, Godâs Justice; Faith, Freedom, and Family; and his most recent attempt at pulling it all together, The Blessings of Liberty.
5 The Rhetorical Form of Witteâs Contribution
From discussing what is distinctive about the genre and content of Witteâs contribution to the study of human rights and religious freedom, let us move on to its rhetorical form. Whether he is conducting a granular study of some segment of the Western legal tradition or presenting a comprehensive survey of human rights and religious freedom in the tradition, Witte always tells a story.
Some historical writing takes the form of describing what life was like at some time and place in the past. In such writing, nothing much happens; there are, at most, mininarratives. Simon Schamaâs description of life in the Netherlands in the seventeenth century, The Embarrassment of Riches, is a masterful
A subset of narratives in general consists of those that take the rhetorical form of stories. What I mean by a story is a narrative that does not just tell one thing after another but tracks a development. The historian singles out some aspect of culture or societyâbe it in the past or in the presentâand then tells the story of how that came about, the story of that development.
Witteâs writing about human rights and religious freedom in the Western legal tradition tells a story, a story both rich in detail and comprehensive in scope. Itâs the story of how the ârich latticeworkââhis phraseâof human rights and religious freedom that we in the West currently enjoy came about. The story tells of the complex interplay among constitutions, laws, and judicial decisions; it tells of the formulation of abstract principles in constitutions, of laws putting those abstract principles into practice, and of judicial decisions interpreting those principles and laws.
Witte identifies six main components of the American version of this rich latticework: liberty of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no establishment of religion. He writes: âThese six principlesâsome ancient, some newâappeared regularly in the debates over religious liberty and religion-state relations in the eighteenth century.⦠They remain at the heart of the American experiment todayâas central commandments of the American constitutional order and as cardinal axioms of a distinct American logic of religious liberty.â12
There are high points in the storyâprimus inter pares of the high points in Witteâs story being the Magna Carta and the legislation and judicial decisions that it spawned, or the First Amendment to the United States Constitution, and the new religious freedom experiment it unleashed. And there are low points, too, which he takes up: places and times when rights and liberties were constricted, especially for religious dissenters and outsiders, or for American slaves who were reduced to chattel, or women who were subordinated and deprived of their rights. And as with any good story, there are subplots, twists and turns, fits and starts.
Aristotle remarked, in his Poetics, that in a good piece of fiction, the storyline has a quality of probability about it, sometimes even inevitability. Given these characters and this situation, itâs likely that things would turn out as they did,
Paired with the bright story Witte tells about the emergence of our rich latticework of rights and liberties is a dark story, a story of oppression, domination, prejudice, and discrimination. Religious liberty clauses appear in constitutions and charters because, in the social context from which they emerge, there was a history of violations of rights and constrictions of liberty. Religion cases come before courts because some person or group of persons feels aggrieved; they believe they have been deprived of what they have a right to. Among the many admirable features of the story Witte tells is that the dark side of the story receives full attention; it is never obscured or hurried past.
To conclude my description of the intrinsic significance of Witteâs contribution to the study of human rights and religious freedomâmy description of its inscapeâlet me return to his thesis concerning the significance of the right to religious freedom for the recognition of human rights in general. He writes: âThe right to religious freedom has long been a foundational part of the gradual development of human rights in the Western tradition, and today it is regarded as the cornerstone in the edifice of human rights.⦠[F]reedom of religion embraces ⦠freedom of conscience, exercise, speech, association, worship, diet, and evangelism; ⦠freedom of religious and moral education, and freedom of religious travel, pilgrimage, and association with coreligionists abroad.â13 This is just the beginning of Witteâs list of the rights attendant on the right to freedom of religion both for individuals and for religious groups.
6 The Polemical Significance of Witteâs Contribution
We have been considering the intrinsic significance of Witteâs contribution, its inscape. Let us move on to its extrinsic significance. A full description of its extrinsic significance would, of course, pinpoint the significance of Witteâs contribution to the field of legal history: where, for example, has he made pathbreaking contributions, where has he expanded or corrected the work of others, etc. Since I am myself not a legal historian but a philosopher, I will leave it to Witteâs colleagues in the field of legal history to discuss this aspect of the
What I can do is pinpoint some of the polemical significance of Witteâs contribution. The story Witte tells, about the emergence and employment of the idea of human rights, has competitors. He writes: âThe history of Western rights is still very much a contested work in progress ⦠, with scholars still sharply divided over the roots and routes of rights and liberties. Every serious new historian of human rights over the past century has tended to focus on a favorite period or person.â15 Witte then lists the authors of thirteen narratives competing with his own.
Most of the competing narratives are told by intellectual historians rather than legal historians. Witte presents them, however, not as narratives concerning the idea of human rights in the intellectual history of the West but as narratives concerning the idea of human rights in the history of the West generally. A signal contribution of Witteâs work is that it makes clear that telling the full story of human rights in the West requires that one attend not only to its intellectual history but to its legal history as well. There is a lesson in this for those of us who are theorists: do not assume that it is theorists who gave birth to such fundamental ideas as the idea of human rights; it may instead have been practitioners of one sort or another.
The point is well made by one of Witteâs colleagues in the field of legal history, the historian of medieval law and jurisprudence Charles J. Reid Jr. In the course of discussing the employment of the idea of human rights by the canon lawyers of the twelfth and thirteenth centuries, Reid asks why so many historians instead trace the emergence of the idea to the philosophers of the fourteenth century. The answer, he says, is that these historians, being âconditioned to expect that the most significant debates over rights will be found in philosophical treatises of scholars like Aquinas, Scotus and Ockham, simply have not sufficiently considered juristic sources.â16
Witte does not directly engage, in any detail, most of the thirteen alternative narratives that he lists. One that he does engage in some detail is the narrative
Some preliminary comments about terminology are called for. Prominent in the two narratives that I will present is the distinction between subjective rights and objective right. A subjective right is a right that one possesses, a right that one has: oneâs right to practice oneâs religion freely, for example, or oneâs right to not be demeaned. Objective right, on the other hand, is right action: doing the right thing: the right thing for a burglar to do is to return what he stole.
Equally prominent is the distinction between positive subjective rights and natural subjective rights. A positive subjective right is a right that one has on account of its having been bestowed on one by some human action: some law, some promise, etc. A natural subjective right is a right that one has whether or not it has been bestowed on one, a right that one has âin the nature of things.â
In the literature, one finds the term âhuman rightâ often used interchangeably with the term ânatural right.â (It appears to me that Witte uses the terms interchangeably).18 It is my own view that the terms should not be used interchangeably. A human right is a right one has just by virtue of being a human being. But there are rights one has âin the nature of thingsâ that are not, in that sense, human rightsâfor example, the right of a child to be treated in certain ways by its parent(s). This is a right possessed by a certain kind of human being, viz., a child, not by human beings in general. Be that as it may, because the two terms are regularly used interchangeably in the literature I will do so as well in what follows.
Each of the narratives that I will present affirms that the idea of objective right goes back into antiquity. What they claim is that it was only centuries
7 The Narrative of Subjective Rights as Beginning in the Late Middle Ages
The narrative that I mentioned as popular especially in neo-Thomist circles holds that it was the late medieval nominalist philosopher William of Ockham (1265â1347) who first systematically employed the idea of natural subjective rights, initially in the course of defending his fellow Franciscans against attacks on the order by Pope John XXII. The most influential proponent of this narrative was the French legal theorist and philosopher Michel Villey, who, from the mid-1940s to the mid-1980s, published a voluminous and influential body of writings on the history of the idea of subjective rights.
To understand how and why Ockham employed the idea of natural subjective rights in his dispute with the pope, some background is necessary.19 After the death of Saint Francis (1226), disagreements arose among his followers as to what exactly their vow of poverty consisted of. On September 28, 1230, Pope Gregory IX issued a bull, Quo elongati, in which he declared that the Franciscans could use the things they needed but were not to own anything, either individually or communally. Disagreements continued. So on August 14, 1279, Pope Nicholas III issued a bull, Exiit, in which he defined Franciscan poverty more precisely. He wrote: âIn temporal things we have to consider especially property, possession, usufruct, right of use and simple factual use,â adding that âthe life of mortals requires the last as a necessity but can do without the others.â20 He declared that the Franciscans had given up right of possession and right of use (usus juris) but retained factual use (usus facti). In this, they were following Christ and the apostles, who also had no rights of possession or use, only factual use.
In late 1322, Pope John XXII created a furor. For several years he had been having trouble with the Franciscans over the nature of their poverty and had
The Franciscans were stung, and several undertook to answer John, William of Ockham preeminent among them. His response went as follows. âEvery right of using is either a natural right or a positive right.â21 Now when Nicholas said that the Franciscans had given up every right of using, he must have had positive rights in mind, since there were no laws, regulations, or anything else of the sort bestowing rights of using on the Franciscans. John claimed to be doing no more than interpreting the bull Nicholas had issued. Accordingly, when John spoke of the right of using and the right of possession, he should be interpreted as also having positive rights in mind.
So consider Johnâs claim that the Franciscans did in fact retain rights of property and of use. The Franciscans obviously had no positive rights of ownership and use; they had renounced it all. What they had not renounced was the natural right of using what was given them. That right cannot be renounced. âIt is licit to renounce property and the power of appropriating but no one can renounce the natural right of using.â22 In short: the Franciscans âhave no positive right, but they do have a right, namely, a natural right.â23
Villeyâs interpretation of the significance of Ockhamâs response to the pope was that Ockhamâs employment of the idea of natural subjective rights marked the beginning of the calamitous displacement of the traditional idea of justice
Villeyâs defense of this interpretation of the significance of Ockhamâs employment of the idea of subjective rights came in two main parts. First, he argued that it was indeed Ockham who first systematically employed the idea of subjective right; before Ockham, not even the concept of positive subjective rights had been systematically employed, so he claimed.25 Ockham was the first to employ it systematically; and he did so in the context of arguing for the existence of natural subjective rights. âSubjective rights from their origin and still today are conceived of as natural rights,â wrote Villey.26 Before Ockham, it was only the idea of objective right that was systematically employed.
To defend this sweeping claim, Villey engaged in extensive analyses of the writings of ancient and medieval authors, with special emphasis on the ancient Latin jurists. To those of us who are not antecedently resistant to the thought that the ancient jurists might have employed the idea of subjective rights, Villeyâs interpretations of the Latin texts often come across as willfully contorted. Here is one example. The Roman jurist Ulpian famously defined the virtue of being just as suum ius cuique tribuere (giving to each what is rightly his). The formula seems obviously to employ the idea of a subjective right, that is, a right that a person possesses. Not so, argued Villey. Stoicism was the philosophical context of Roman juristic thought, and the Stoics thought of justice in terms of objective right order. So what Ulpian must have meant by a personâs ius (right) was simply a personâs share in the goods distributed by a right social order.
The modern idea of subjective rights ⦠is rooted in the nominalist philosophy of the fourteenth century, and it first saw the light of day in the work of William of Ockham. Ockham inaugurated a âsemantic revolutionâ when he transformed the traditional idea of objective natural right into a new theory of subjective natural rights. His work marked a âCopernican momentâ in the history of the science of law.27
In Villeyâs words: âIt is the whole philosophy professed by Ockham that is the mother of subjective right.â28
Even a casual reading of Villeyâs argumentation on this point makes clear that it comes to little more than attribution of guilt by association: subjective rights are rights possessed by individuals, and Ockhamâs nominalist metaphysics contained only particulars; so it was Ockhamâs nominalism that inspired his innovative employment of the idea of subjective rights. Villey left no doubt that, in his view, what was true in Ockhamâs case remains true: the idea of subjective rights has its home in individualistic ways of thinking.
8 The Narrative of Rights as Beginning in the Enlightenment
The alternative to his own narrative that Witte engages at some length in a number of his writings can be presented more briefly, since it is more familiar and also much less complex than the Villey narrative. Itâs the claim, as mentioned earlier, that thinkers of the European Enlightenment innovated the idea of natural subjective rights. Some of those who espouse this narrative exhibit no knowledge of the Villey narrative;29 others do know of it but hold that Hobbes and Locke were ignorant of medieval thought and newly innovated the idea.
It was in the course of developing the foundations of modern political liberalism that they employed the idea. We can take Locke as typical.30 Imagine,
Now suppose that in the state of nature someone violates the law of nature and wrongs another person. Then two additional rights, constituting what Locke calls âthe executive power,â come into play. Everyone has the natural right to protect themselves, by force if necessary, to punish anyone who wrongs them, and to demand reparations; and anyone who agrees with the injured party that he has been wronged has the natural right to assist him in exercising those rights.
Locke observed that it takes little knowledge of human beings to see that where there is no government, the enjoyment of these rights is precarious. The weak and the dull are susceptible to being wronged by the strong and the clever; partiality leads people to charge that they have been wronged when they have not been; anger leads them to punish excessively; etc. So groups of people living in a state of nature get together and form a contract to establish a state for the purpose of remedying these disadvantages. They jointly âdelegateâ (Lockeâs word) to the state their natural right personally to protect themselves and their natural right personally to punish and exact reparations from those who wrong them, and they promise to comply with the laws, directives, and judicial decisions that the state issues pursuant to achieving the purposes for which it was formed. They have a natural duty to keep that promise.
The social individualism of Lockeâs way of thinking is unmistakable. In an article well-known in legal circlesââObligation: A Jewish Jurisprudence of the Social OrderââRobert Cover, an esteemed professor in Yale Law School and himself Jewish, wrote: âThe story behind the term ârightsâ is the story of social contract. The myth postulates free and independent if highly vulnerable human beings who voluntarily trade a portion of their autonomy for a measure of collective security.⦠[T]he first and fundamental unit is the individual
Coverâs words suggest, but he does not actually say, that what was originally true remains true: the idea of natural subjective rights originated within individualist ways of thinking, and it remains the case that it is within such ways of thinking that the idea has its home. What Coverâs words suggest, Joan Lockwood OâDonovan makes explicit: âthe modern liberal concept of rights belongs to the socially atomistic and disintegrative philosophy of âpossessive individualism.ââ33
The narrative told by Villey concerning natural rights in the late medieval period, and the narrative told by OâDonovan and many others concerning natural rights in the Enlightenment, are both declinist narratives: the traditional idea of natural objective right was calamitously displaced by the new-fangled idea of natural subjective rights. Further, the ways of thinking that these two narratives identify as culprits are remarkably similar. In Ockhamâs case, it was his metaphysical particularism; in the case of Locke and his cohorts, it was their social atomism.
9 Witteâs Story Undermines the Alternative Narratives
I have said nothing, up to this point, about the actual content of Witteâs contribution, other than noting that, in the story he tells, human rights and religious freedom have been persistently and inextricably intertwined. To show how his story undermines the two competing narratives that I have summarized, along with the others, we must now have some of that content before us.
In the introduction to The Blessings of Liberty, Witte gives a preview of what he will discuss in the nine highly detailed chapters that follow. No need for an extensive summary of the story Witte tells; for our purposes here, it will suffice to quote some sentences from his previews of the first three chapters, along with some sentences from his summaries of these chapters.34
âChapter 2 zeroes in more closely to offer a lengthy study of the development of rights and liberties in the Anglo-American legal tradition from Magna Carta, in 1215, to seventeenth-century England and its colonies leading up to the American Revolution.â He concludes the chapter with these sentences: âThe American constitutional founders, like the liberal Enlightenment philosophers, inherited many more rights than they contributed. What they contributed more than anything was a philosophical defense of these rights that transcended particular religious premises and a constitutional system of governance that allowed for a much broader, if not universal, application.â36
âChapter 3 retrieves the long-deprecated teachings of the Protestant Reformation concerning natural law and natural rights, and reconstructs the Reformersâ role in the development of human rights, religious freedom, and democratic revolution in early modern Protestant lands. Lutherans, Anabaptists, and Calvinists alike made notable contributions to the expansion of public, private, penal, and procedural rights and liberties.â Opening his discussion in Chapter 3 Witte writes: âSome view human rights as a dangerous invention of the Enlightenment, predicated on a celebration of reason over revelation, of greed over charity, of nature over scripture, of the individual over the community, and of the pretended sovereignty of humanity over the absolute sovereignty of God.â He wryly adds: âWhile such skepticism might make for good theology in some Protestant circles today, it is not good history.â37
In short, the systematic employment of the idea of natural subjective rights did not begin with the philosophers of the European Enlightenment. Centuries before the Enlightenment, the Reformers were employing the idea. Nor did it begin with William of Ockham. It goes back to the canon lawyers of the twelfth and thirteenth centuries, and back beyond them to the jurists of ancient Rome and to Jewish and Christian scripture.
Itâs true that someone whose life orientation is that of possessive individualism may well find the language of rights useful for his purposes: he will insist loudly and exclusively on his rights. But I have argued philosophically that, rather than this being the home use of rights language, it is an abuse of the language of rights.38 When someone comes into my presence, not only do I have rights vis-Ã -vis them but they have rights vis-Ã -vis me. The situation is symmetrical. And as for the supposed individualism of rights: it is sufficient to observe that social entities also have rightsâfamilies, schools, groups, corporations, etc. Philosophical reflection yields the same results as Witteâs historical studies.
10 Witteâs Story Undermines the Claim That Religion Does Not Merit Special Protection
Witteâs work has an important additional dimension of polemical significanceâadditional to the fact that it undermines a wide swath of alternative narratives of human rights. The millennia-long story Witte tells about the persistent interweaving of human rights with religious freedom constitutes a powerful case against the claim one hears nowadays that religion deserves no special protection.
About the discussions that led to the U.S. Bill of Rights, Witte writes: âOne key to the enduring success of [the] American experiment in religious freedom lies in the eighteenth-century foundersâ most elementary insightâthat religion is special and needs special constitutional protection.â Witte notes that this claim, that religion is special and needs special protection, is questioned nowadays by a considerable number of political philosophers and legal theorists. Religion âhas become obsolete in our post-establishment, postmodern, and post-religious age, these critics argue. Religion, they say, is too dangerous,
Alluding to his own research, Witte replies: âtoo many of these critical arguments fail to appreciate how dearly fought religious freedom has been in the history of humankind, how imperiled religious freedom has become in many parts of the world today, and how indispensable religious freedom has proved to be for the protection of other fundamental human rights in modern democracies.â Then, after acknowledging that religion has been responsible for many evils, he composes an eloquent articulation of the contribution religion makes to the flourishing of individuals and the common good. Religions âdeal uniquely with the deepest elements of individual and social life.â40
We would be much the poorer in our knowledge of the history of human rights and religious freedom, and in our grasp of their importance, had John Witte not devoted his prodigious skills and energy to exploring the legal history of rights and freedoms in the West.
See, especially, John Witte, Jr., ed., Christianity and Democracy in Global Context (Boulder, CO: Westview Press, 1993; repr. ed. London: Routledge, 2019); John Witte, Jr. and Johan D. van der Vyver, eds., Religious Human Rights in Global Perspective: Legal Perspectives (Dordrecht: Martinus Nijhoff Publishers, 1996); John Witte, Jr. and Michael Bourdeaux, eds., Proselytism and Orthodoxy in Russia: The New War for Souls (Maryknoll, NY: Orbis Books, 1999); John Witte, Jr. and Richard C. Martin, eds., Sharing the Book: Religious Perspectives on the Rights and Wrongs of Proselytism (Maryknoll, NY: Orbis Books, 2000); John Witte, Jr. and Frank S. Alexander, eds., Christianity and Human Rights: An Introduction. With Frank S. Alexander. Christianity and Human Rights: An Introduction (Cambridge: Cambridge University Press, 2010); and John Witte, Jr. and M. Christian Green, eds., Religion and Human Rights: An Introduction (New York: Oxford University Press, 2012).
See, especially, John Witte, Jr. and Justin J. Latterell, âBetween Martin Luther and Martin Luther King: James Pennington and the Struggle for âSacred Human Rightsâ Against Slavery,â Yale Journal of Law and Humanities 31 (2020): 205â71.
The term was Hopkinsâs translation of a term that he found in the medieval philosopher/theologian Duns Scotus: haecceitas, literally, âthisness.â
Hopkins used the term âinscapeâ in many of the writings included in John Pick, ed., A Hopkins Reader (Oxford: Oxford University Press, 1953). The reference to the inscape of the tree is on page 46 of that volume.
See, especially, John Witte, Jr., Faith, Freedom, and Family: New Essays on Law and Religion, ed. Norman Doe and Gary S. Hauk (Tübingen: Mohr Siebeck, 2021), 427â56 (challenging human rights skeptics Nigel Biggar and Samuel Moyn); and John Witte, Jr. and Joel A. Nichols, ââCome Now Let Us Reason Togetherâ: Restoring Religious Freedom in America and Abroad,â Notre Dame Law Review 92 (2016): 427â50 (challenging First Amendment critics).
See, especially, John Witte, Jr., The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), 321â45; and John Witte, Jr., The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition (Cambridge: Cambridge University Press, 2021), 290â303.
The Blessings of Liberty, 11.
Ibid.
See further the chapter by Rafael Domingo herein.
The Blessings of Liberty, XI.
See further the chapter by Helen M. Alvaré herein.
The Blessings of Blessings, 139, and elaborated in John Witte, Jr., Joel A. Nichols, and Richard W. Garnett, Religion and the American Constitutional Experiment, 5th ed. (Oxford: Oxford University Press, 2022), 59â92.
The Blessings of Liberty, 6.
See further the chapter by R. H. Helmholz herein.
The Blessings of Liberty, 16.
Charles J. Reid, Jr., âThe Canonist Contribution to the Western Rights Tradition: An Historical Inquiry,â Boston College Law Review 33, no. 1 (Dec. 1991): 37â92, at 39.
Another narrative that Witte engages in detail is that of Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Cambridge University Press, 2010); and Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015). See Witte, Faith, Freedom and Family, 441â56 (chapter titled ââA New Black Massâ: Evaluating Samuel Moynâs Account of the âMythâ of Human Rightsâ).
He sets out a taxonomy of rights in The Reformation of Rights, 33â37 and further in Witte and Green, Religion and Human Rights, 3â21.
I base what follows mainly on two sources: part two of Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150â1625 (Grand Rapids: Eerdmans, 1997); and John Moorman, A History of the Franciscan Order from its Origins to the Year 1517 (Oxford: Clarendon Press, 1968). I present Villeyâs narrative somewhat more fully than I do here in Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton, NJ: Princeton University Press, 2008), 45â50. Some sentences in my presentation here are taken from that earlier presentation.
Quoted in Tierney, The Idea of Natural Rights, 94.
Quoted in ibid., 121.
Quoted in ibid., 164.
Quoted in ibid., 122.
Quoted in ibid., 27â28.
Itâs hard to understand the declarations of popes Nicholas and John as not making claims about subjective rights!
Quoted in Tierney, The Idea of Natural Rights, 20.
Ibid., 14.
Quoted in ibid., 30.
Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953).
I discuss Lockeâs views somewhat more expansively than I do here in Nicholas Wolterstorff, Understanding Liberal Democracy: Essays in Political Philosophy (Oxford: Oxford University Press, 2012), 259â65. A few sentences in the text above are taken from that earlier discussion.
Lockeâs Second Treatise of Government, §4.
Journal of Law and Religion 5 (1987): 65â74, at 66.
Joan Lockwood OâDonovan, âNatural Law and Perfect Community: Contributions of Christian Platonism to Political Theory,â Modern Theology 14, no. 1 (Jan. 1998), 19â42, at 20. OâDonovan makes the point more elaborately in her essay âThe Concept of Rights in Christian Moral Discourse,â in A Preserving Grace: Protestants, Catholics, and Natural Law, ed. Michael Cromartie (Grand Rapids: Eerdmans, 1997), 143â61.
I will not follow the usual practice of putting these somewhat lengthy quotations in block indent format.
Ibid., 8, 72.
Ibid., 8, 75.
Ibid., 8, 76.
See Nicholas Wolterstorff, Journey toward Justice (Grand Rapids: Baker Academic. 2013), chap. 10.
The Blessings of Liberty, 156, 163.
Ibid., 166.