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Privare Aliquem Iure Suo Est Contra Ius Naturale: on Paul Vladimiri's Natural Rights Theory

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Privare Aliquem Iure Suo Est Contra Ius Naturale: on Paul Vladimiri's Natural Rights Theory Privare aliquem iure suo est contra ius naturale: On Paul Vladimiri’s Natural Rights Theory Magdalena Płotka ABSTRaCT. The present contribution attempts to provide a more precise response to the discussion surrounding the concept of permissive natural law according to Paul Vladimiri. This goal will be realized in three steps. First, I will offer a brief history of permissive laws of nature in the medieval tradition and I will outline the historical context in which Paul Vladimiri developed his theory of natural law. Second, I will analyse excerpts from the writings of Vladimiri, in which he uses phrases indicating the presence of permissive law. Third, I will present the examples of natural human rights that Vladimiri develops in the context of the Polish-Teutonic Order conflict in 1415-1416. KEYWORDS. Paul Vladimiri, natural law, permissive law, philosophy of law, the history of Polish philosophy I. INTRODUCTiON n late medieval philosophical thought, the traditional theory of natural Ilaw based on concepts of Augustine and Thomas Aquinas was redefined. The principal change relied on the interpretation of law as a subjective property of human being (ius). According to this account, “[…] scholars resigned from perceiving the natural law (lex) as logos, world harmony or proportion” (Tierney 1997, 20).1 The subjective concept of law was the source and the point of departure for the legal and philosophical doctrines of the 17th century (Thomas Hobbes, Christian Wolff, Francisco Suarez, Hugo Grotius, Samuel Pufendorf [Haakonssen 1996, 15-16]), which out- lined the subjective character of the law as a faculty (facultas) or potency (potestas) (Hobbes 1999, 112-113). The essential difference between a tra- ditional and a subjective understanding of natural law can be observed in Thomas Hobbes’ Leviathan: “[…] the right of nature, which writers ETHICAL PERSPECTIVES 24, no. 1(2017): 21-37. © 2017 by Centre for Ethics, KU Leuven. All rights reserved. doi: 10.2143/EP.24.1.3200592 ETHICAL PERSPECTIVES – MARCH 2017 commonly call ius naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; […] A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life […]. For though they that speak of this subject use to confound jus and lex, right and law, yet they ought to be distinguished, because right consisteth in liberty to do, […] whereas law determineth and bindeth to one of them: so that law and right differ as much as obligation and liberty, which in one and the same matter are inconsistent” (Tierney 1997, 51). Analogically, William Ockham – “the inaugurator of modern rights theories” (Villey 1964, 97-127) – claimed that subjective law is something that subiacet, i.e. it is inherent in persons and is thus a personal quality, liberty, faculty or an ability to act (Tierney 1997, 28). For Ockham, to have rights means to have power to act. As Villey points out, the innova- tion in Ockham’s account was the conjuncture of two concepts, ius and potestas. After the publication of Villey’s work, it became clear that the concept of ius was already present in the Canonist tradition, which resulted in the reexamination of numerous ancient and early medieval sources. Appreciating the importance of Ockham’s contribution to the concept of subjective rights theory, one has to keep in mind the historical roots of the 14th century ius and lex debate, as well as its further development (Maakinen 2005, 167).2 There would still appear to be a great deal to explore. One of the unexplored areas of the philosophical and legal heritage of the Middle Ages is the activity of Paul Vladimiri (Paweł Włodkowic). Vladimiri was a Polish scholar, who worked at the University of Cracow in the 15th century. As a diplomat, he was one of the group of lawyers sent by the Jagiellonians to the Council of Constance in 1415 to participate in the Polish-Teutonic Order dispute (Belch 1965, 7-24).3 The basis of his argument for the defence of pagan land against the Teutonic aggres- sor was the concept of subjective rights. This concept was a part of his theory of just war, which he used as an argument against the claims of — 22 — Ethical Perspectives 24 (2017) 1 MAGDALENA płotka – ON PAUL VLADIMIRI’S NATURAL RIGHTS THEORY Teutonic Order. Vladimiri’s innovative concept of ius humanum became popular in the Polish academic community and it was a foundation of the Polish school of international law (ius gentium), with a number of prominent scholars among its members (Jakub Zaborowski [† 1449], Jakub of Szadek [†1487], Jan Elgot [† 1452], Deresław of Borzynowo [† 1452], Jan Puszka of Cracow [† 1452], Tomasz Strzempiński [† 1460] [Wielgus 1996, 15]). The aim of this article is to examine rights theory in Paul Vladimiri’s thought. Inasmuch as he used both Latin terms ius and lex, his philo- sophical and legal considerations can be regarded as an excellent example of the modification of the concept of natural law in the late medieval tradition. Moreover, he distinguished the concept of law from the meta- physical structures of the world (the structures of being) and as a result he established an original natural rights theory entirely on anthropology. His legal theory thus relies on our understanding of human being, presup- posing anthropology as prima philosophia on the one hand, and laying itself open to a charge of relativism on the other. The present article begins with an introduction to the historical con- text of the formation of Paul Vladimiri’s legal and philosophical legacy. Second, it summarizes contemporary discussion on the character of Paul Vladimiri’s concept of lex naturae. Third, by referring to the contexts of occurrence of permissive law formulated by Brian Tierney, it confirms that Vladimiri adopts the concept of human rights (ius humanum). The paper analyses the selected fragments of Vladimiri’s corpus diplomaticum in which he uses the concept of right in arguments against the Teutonic Knights. It ends with a list of the particular human rights ascribed by Vladimiri to the pagan Lithuanian and Samogitian tribes. II. HiSTORiCaL CONTEXT OF PaUL VLaDiMiRi’S ThEORY OF NaTURaL RiGhTS Paul Vladimiri formulated his theory of natural law for the needs of the Polish-Teutonic trial during the Council of Constance in 1415-1416. Designated by the administration of the Jagiellonians, his task consisted in — 23 — Ethical Perspectives 24 (2017) 1 ETHICAL PERSPECTIVES – MARCH 2017 arguing against the appropriation by the Teutonic Order of Lithuanian and Samogitian lands (Wielgus 1996, 55-57).4 Vladimiri’s master stroke was to present the general principles governing relations with the gentiles, and then apply the same principles to the Teutonic Order. Vladimiri thus referred to international law and argued that it has to be based upon a precept of natural law.5 He declares in Ad Aperiendam that “[…] if you can- not get justice in the way of civil or political law, the defense is the (institu- tion) of natural law” (1968a, 219). The reason why he refers only to natural law and omits canonical and positive law, was the fact that infidels were not subjects to either the Empire or the papacy, so “[…] they were not bound by a positive canon law and civil law, but only by the natural law” (1968a, 228). Vladimiri then adhered to natural law and based his entire argumentation against the Teutonic Order on the claim that the appro- priation of someone else’s property is illegal, i.e. against the natural law. III. LEX NATURAE aND IUS HUMANUM iN VLaDiMiRi’S ACCOUNT Before we consider the contexts and arguments in which Vladimiri uses the concept of the natural law, let us first explore his understanding of the concept of lex naturae. Some scholars disagree on whether Vladimiri’s concept of natural law is based more on Aquinas’s understanding of lex naturae (as part of lex divinae), or whether it resembles late medieval and early modern concepts of human right. To the extent that Aquinas was an obligation law theoretician, late medieval and early modern legal philosophers tend to focus on permissive legal discourse. There is a controversy among scholars as to what legal medieval tradition is repre- sented by Paul Vladimiri. Tadeusz Jasudowicz, for example, argues that ius humanum in Vladimiri’s concept is rooted in human nature (whereas Aquinas’s concept of natural law assumes that its proper source is the providential order of the world; Jasudowicz 1995, 33).6 Vladimiri claims that as far as the most important political concepts (like ‘state’, ‘power’, ‘property’) have been ‘invented’ by a human being, natural law (ius humanum) — 24 — Ethical Perspectives 24 (2017) 1 MAGDALENA płotka – ON PAUL VLADIMIRI’S NATURAL RIGHTS THEORY cannot be merely a gift of God (1995, 52). This was precisely the reason why Vladimiri regarded natural law as a human discovery. Moreover, as Jasudowicz (1995, 37) points out, ius humanum is universal law, i.e. its validity extends to both Christians and non-Christians, and the basis of its universality is humankind’s participation in rational human nature as well as human dignity. On the other hand, Stanislaus F. Belch suggests that Vladimiri’s con- cept of natural rights has Thomistic foundations and argues that his understanding of law refers to Aquinas’s concept of law of obligations. Belch argues that according to Vladimiri “[…] nature is also the source of obligation which harmonizes its activity with the activities of other things and of the universe” (1965, 242). In addition, he underlines Vladimiri’s usage of Thomistic metaphysics in his theory of ius humanum (1995, 242).
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