- 著者
-
小林 公
- 出版者
- 日本法哲学会
- 雑誌
- 法哲学年報 (ISSN:03872890)
- 巻号頁・発行日
- vol.2007, pp.27-39, 2008 (Released:2021-03-31)
In recent years various attempts have been made to trace the origins of modern subjective rights back to scholastic sources. In the debate about scholastic theories of rights, William of Ockham has sometimes been identified as the primary source for an idea of subjective right, an idea in sharp contrast to a classical objective conception of rightness exemplified in Thomas Aquinas’s doctrine of natural law. In this debate most scholars now agree that it was the fourteenth-century dispute between Pope John XXII and the leadership of the Franciscan Order concerning the doctrine of evangelical poverty that first drew the concept of subjective natural rights into the center of a major public controversy involving a reigning pope and some of the leading intellectuals of the day, Ockham himself included
But what marks a theory of rights as modern is not that some subjective rights discourse is employed in it, but that the rights discourse in it is liberated from the natural order of things characteristic of the classical legal thought. In Ockham, it was not, as it is usually thought, the Franciscan poverty dispute, but his nominalistic theology of absolute power of god that really contributed to the emergence of modern rights discourse.
Perhaps the most well-known feature of Ockham’s philosophy is his denial of real universal entities in his ontology. But a second, equally important feature of it is his claim that there is no philosophical reason to postulate real entities at all in all ten of Aristotle’s categories, but only in two, namely substance and quality. So, in Ockham’s ontology there are no real entities other than individual substances and individual qualities inhering in substances. From the theological view point this individualistic and nominalistic ontology was a corollary from the absolutism of God’s power which also implied the destruction of teleological order of the universe, and this in turn led to the emergence of the subjective conception of “good” which is at the heart of modern theory of rights.