Rethinking Rights is a valuable collection of essays for those who think, with Benedetto Croce, that history should be written by philosophers and philosophy by historians. Historians of the idea of rights will find the contributions of Brian Tierney, Gary Glenn, and George Carey of special interest while philosophers of an Aristotelian-Thomist bent will especially enjoy the contributions of Kenneth Schmitz, Kenneth Grasso, and Jonathan Chaplin. Still, the historical essays have a philosophical dimension just as the philosophical essays have a historical dimension. Also, it must be said, many of the essays combine philosophical analysis with some ideological animus; scholarly argument sometimes slips into polemics.

Ever since the ideology of natural rights became politically incendiary in the eighteenth century, we have seen scathing philosophical and political attacks on “rights talk” from Jean-Jacques Rousseau, Edmund Burke, Jeremy Bentham, and John Austin. The critique of rights came from both defenders of tradition and from advocates of radical social change, just as today's attacks on rights come from conservatives (Mary Ann Glendon) and from progressive multiculturalists (Charles Taylor) and even from liberals (Sonu Bedi). The indictment of rights is familiar. Rights make us selfish: “everyone knows his rights, but no one his duties” (Rousseau); rights atomize us into windowless monads, with no sense of connection to others; rights claims are absolute and frustrate compromise: they make us into “dangerous fanatics” (Bentham); rights claims trump goodness and morality itself, by protecting immoral conduct under cover of “privacy” or “property” or “autonomy”. Many of the essays in this collection acknowledge the force of these critiques of the politics of rights talk; nonetheless, all of these contributors mount a qualified defense of rights-talk. They argue that rights can be grounded in moral goodness, in human solidarity, and in a rich array of communal loyalties. In good Thomistic fashion, they are confident that the abuse of rights-talk does not undermine its proper use.

Several of the contributors, especially Tierney, Glenn, Paul Gottfried and Chaplin, offer what might be called a counter-genealogy of rights. In the familiar Enlightenment genealogy, medieval and early-modern individuals were being oppressed by various intermediate corporal bodies, ranging from churches to guilds to manors; the modern, secular state alone had the power to protect individuals from these local oppressors. In a classic example of the cunning of reason, the rise of the absolutist state was a necessary instrument for securing individual rights! Yet, as Tocqueville and others have long noted, what the state grants, the state can take away: by dominating all intermediate associations, the modern state has become the main guarantor as well as the main threat to individual rights.

By contrast to this Enlightenment dialectic of the individual and the state, the contributors to this collection offer a medieval, communal account of the rise of rights-talk. In the conventional history of ideas, the language of rights is said to arise out of late-medieval nominalism (Michel Villey, Leo Strauss, Richard Tuck); the rise of rights-talk is said to reflect the rise of modern individualism from the oppressive natural law communalism of medieval life. Tierney argues here as he does in his book The Idea of Natural Rights (1997) that this conventional intellectual history is largely mistaken. He shows that the language of natural rights, including individual natural rights, was pervasive in medieval legal and political culture and that it long pre-dated the rise of nominalism and voluntarism. Indeed, medieval life was marked by incessant conflict among a very rich array of group and individual rights: towns against guilds, empire against towns, church against towns and empire, etc. Individual and communal liberty grew in the interstices of these competing rights-claims. Corporate bodies, whether religious, economic, or political, sometimes promoted and sometimes threatened important individual rights. So instead of pitting the impotent individual against the omnipotent state, medieval associational life appears as an anarchy of overlapping group loyalties. Bruce Frohnen similarly argues that the rights of corporations and municipalities have been eroded over the course of American history: Medieval corporations (both economic and political) enjoyed a mix of private and public rights. But the rise of the modern administrative state has reduced corporations to congeries of private contracts and reduced municipalities to instruments of state and national governments.

Croce also said that “all history is contemporary history,” and these forays into medieval and early American history are meant to support an argument for a richer mix of associational life in modern polities. These contributors defend an array of corporate rights for families, churches, municipalities, universities, and other bodies. Like Tocqueville, they see these intermediate bodies as an antidote to both individual anomie and to oppressive state power. Kenneth Grasso develops a traditional Aristotelian-Thomist notion of subsidarity as a way to structure the balance of authority between local and higher bodies: For any particular governmental function, authority should rest upon the lowest level of government competent to perform that function. The principle of subsidarity thus protects individual and local initiative and creativity: The state acts to support the rich array of communal bodies so that they can best perform their unique functions. Following Johannes Althusius, though without attribution, the contributors conceive of the state as a community of communities (communitas communitatum). This vision of associational and communal pluralism sounds very desirable in the abstract; but what would it mean in concrete terms? Unfortunately, the various contributors do not flesh out this vision of group rights. Exactly what rights would families, unions, cities, corporations, etc. have against individuals? This vision of communal pluralism will become much less appealing to many of us once we know what liberties, power, and immunities are at stake.

Ironically, nothing is more contemporary about this collection than its return to medieval images of communal life. We are now witnessing, especially in Europe, the erosion of the hegemony of the nation state: Power is devolving down to regions and evolving up to international bodies. Many theorists of international and domestic politics are turning to the Middle Ages to find models of complex communal pluralism and overlapping jurisdictions. It is useful to be reminded that rights-talk is not limited to the claims of individuals against sovereign nation states. Indeed, a robust politics of rights-talk has its origins in the chaotic communal conflicts of medieval Europe and will no doubt outlast the increasingly dubious claims of states to sovereign power.