Private Right and Common Good

On Wednesday, June 10, 2020, Professor James Gordley gave an outstanding (virtual) lecture at our Centre for Privacy Studies.

James Gordley is an expert in comparative and contract law. He studied in Chicago and Harvard, and was professor at the University of California (Berkeley), before coming to Tulane University (New Orleans).  In 1991, he published the Philosophical Origins of Modern Contract Doctrine with Oxford University Press. This work reshaped the way of thinking about the history of private law. Before Gordley, only a few historians had investigated the impact of the theology of Thomas Aquinas and the late scholastics on the field of contract law.

A few years later, in 2006, James Gordley authored Foundations of Private Law. Property, Tort, Contract, Unjust Enrichment. In this book, he expanded the original thesis of the crucial importance of the Aristotelian Thomistic tradition for the development of modern private law. In 2013 he published The Jurists: A Critical History. Here, he explored the history of Western legal thought from the Romans till nowadays.

Among his innumerable articles, I would like to remember Law and Religion: An Imaginary Conversation with a Medieval Jurist published in California Law Review Vol. 75, 169-183. Gordley tried to imagine a conversation between a modern student of law and a fourteenth-century law professor in Bologna. This article, I believe, is very thought-provoking. I quote here a few passages from the introduction:

James Gordley’s lecture was about private right, common good, and how these two fit together. I will give here a brief account of the lecture with no aim of completeness. Private right and common good were in harmony in the writings of the late scholastics. Modern liberalism disrupted this harmony. Aquinas used the word ius to mean what one was allowed to do. Aquinas and other medieval theologians and jurists demanded restitutio of the stolen thing as a requirement for obtaining forgiveness. Salvation was only granted through confession of sins. In order to be absolved in the confessional, the Christians had to return things they had stolen. Restitutio also concerned honour, reputation etc. Therefore, commenting upon Aquinas Francisco de Vitoria proposed to use the term ius, ius (right) as what one is allowed to do.

Nineteenth-century scholars focused on the will of the right owner: the owner can do what he wants from his property. Contemporary jurists criticized this theory because it does not explain the limits established by the law. The law can limit contracts and property. A contract is not always enforced according to the will of the parties. On the other hand, the late scholastics argued that property is not an absolute right. The limits of the rights are delimited by justice. For example, a contract is limited by the equality of commutative justice. The innovation of nineteenth jurists, Gordley concluded, was not to introduce the concept of will, but it was to leave out the consideration of justice.

With regard to public good, Gordley affirmed that the late scholastics defined it according to three common features. Human beings live in a community because the human being is a social animal. The choice to be in the community is voluntary, but it is the only choice man can do. A community must also choose his form of government: monarchy, aristocracy, or democracy. Once this choice has been made, people must stick to it. There is a right to resist against the tyrants when they no longer rule for the common interest but for their private interest.

Finally, Professor Gordley delineated the relationship between private right and common good.  Thomas Aquinas also used ius to mean the virtue of justice and not not the objective right.  Following Aristotle, he distinguished between general justice and particular justice. Justice is to preserve happiness. Particular justice is either distributive or commutative. Thus, ius both meant general justice and the right that belongs to a particular person.

Aristotle described general justice as part of every virtue. Justice is a complete virtue. Aquinas explained that the good of any virtue is the common good towards general justice. All acts of virtue pertain to general justice insofar as they direct man to the common good. Thus, the preservation of a private right is directed towards the common good. Every virtue contributed to the happiness of the state. The good of any virtue can be referred to the common good.

This was a very short sketch. Professor Gorgley’s lecture was much more complex and fascinating. We were really honoured to have him at our centre. For those of you who are interested, the lecture will be published in our podcast.