The Medieval Review 12.11.16

Varkemaa, Jussi. Conrad Summenhart's Theory of Individual Rights. Studies in Medieval and Reformation Traditions, 159. Leiden: Brill, 2012. Pp. vii, 266. $139.00. ISBN: 978-90-04-21683-9. . .

Reviewed by:

Jonathan Robinson
The Catholic University of America
robinsonj@cua.edu

This book helps fill a large gap in our knowledge about the history of theories and theorizing about rights. Interest in "human" rights has grown steadily over the last sixty years or so, and it has been matched by a corresponding interest in the pre-modern (early-modern) history of 'natural' rights. Jussi Varkemaa's book on Conrad Summenhart (ca. 1458-1502) can be seen as another example of this trend. Its main value lies in the close reading of the first part of Summenhart's massive Septipertitum opus de contractibus pro foro conscientie atque theologico, which opens with a detailed analysis of ius and dominium. Varkemaa's bibliography is proof that not many scholars have tried to work their way through the Septipertitum opus, and the rest of his book is proof that Summenhart's views are well worth studying, both on his own terms and because of his influence on the School of Salamanca. [1] We should hope for more books like this if we hope to press the case that medieval intellectuals played an important role in later thinking about rights.

Varkemaa presents Summenhart's ideas about rights in a clear and systematic fashion. (Summenhart was systematic, but clear is not the right word.) Rather than try to summarize Varkemaa's reading of Summenhart, I shall discuss in what follows some of the places where I find myself in disagreement with his or Summenhart's conclusions.

The first chapter surveys some of Summenhart's antecedents: Bonaventure, Godfrey of Fontaines, Peter [of] John Olivi, Hervaeus Natalis, William [of] Ockham, Richard Fitzralph, Jean Gerson, and Antoninus of Florence (Antonino Pierozzi). This is a reasonable list, but the organizing principle is not entirely clear. Of these authors, Gerson and Antoninus are the most important foil to Summenhart since he relies on their writings in the sections Varkemaa analyzes. Another individual who perhaps should have been included is Henry of Ghent, to whom Summenhart also referred (unlike, e.g., Ockham). Given Summenhart's reliance on Azo and Hostiensis when considering property rights, it might have been useful as well to survey some of the jurists' views in this section as well. [2] Of course, such a list could be expanded indefinitely; on the whole Varkemaa's choices were reasonable.

With this list Varkemaa set himself the task of documenting when and where ius was equated with dominium. Thus Godfrey, who was worried about any status that would forsake all rights to sustenance, pointed out that individuals all had dominium et quoddam ius by ius naturae (18). This passage demonstrates, I think, the difficulty a medieval author faced if he wanted to equate ius and dominium. What needs to be stressed in such cases is that ius and dominium denote the same kind of relationship, namely one of "mastery," but not that ius is a kind of dominium. Rather, dominium is a kind ius: to have lordship (or dominion), one had ius, but one could have ius without having dominium in its proper sense. [3] There is a shift over time to talk more openly about some kinds or meanings of ius in terms of dominium; Varkemaa's book is a good example of this in many ways, but greater care needs to be exercised in distinguishing between the conceptual and (say) ontological equivalences of the two terms.

The Dominican Antoninus (1389-1459) is another interesting example in the history of the relationship of these two terms. He questioned whether the two terms could mean precisely the same thing, ultimately arguing that they do not. Unfortunately, the passages Varkemaa quoted are marred by some small errors of transcription: ".n." is expanded to "nam" instead of "enim" and "t_m" (i.e., t+macron-m) to "tamen" instead of "tantum." The point Antoninus disputes is the idea that "someone has as much dominium in re as he has ius in re"; instead Antoninus sided with those who thought one could have a right over someone (ius in aliquo) who was not subordinate to the right-holder, which simply was not true of one who has dominium. As Antoninus pointed out, although all dominium is ius, the converse is not true: "for dominium seems to add a certain superiority and authority to ius." [4] Varkemaa correctly stresses the significance of this passage. The essence of rights, for Antoninus at least, is devoid of implications of superiority. Some rights, such as dominium, may denote a hierarchical relationship, but others seem to evince more of the reciprocal obligation of the individual in whom one has the right (e.g., sons and slaves have a right "in" their father or lord because the father or lord is bound to provide them with nourishment).

Summenhart was indebted to Antoninus in many ways, but not regarding the equivalence of ius and dominium. Summenhart opened his discussion of ius with a consideration of two general senses ius might have (66-67). [5] Varkemaa chose to translate both as "right," but when Summenhart says that the word can be understood in the sense of lex as when we talk about ius civile or use the phrase secundum iura it is clear that the more natural translation in English is "law." This kind of translation better highlights the "rights-side" of ius when Summenhart talks about how the word can be taken, in another sense, to mean the same thing as potestas. Varkemaa seems to suggest this when he says that Summenhart was making a case that right (ius) and law (lex) "are fully equivalent terms" while the other understanding indicated that "power" was the "genus term" for "right." Still, it would be clearer if he had stressed that Summenhart was trying to point out that ius is used differently in different circumstances. After all, when we mean ius can be understood as a kind of power, it is clear that we are not talking about (say) ius gentium.

On the other hand, it is true that Summenhart believes there is a way the terms can be used interchangeably. Varkemaa wrote that Summenhart thought the terms "completely equivalen[t]" (77-80) but I think the argument is a little more subtle than that. Summenhart noted that dominium can be taken in a stricter or looser sense. The key phrase in this case is "Sed ita stricte hic non accipiemus." Varkemaa translated this passage as "But we do not take it [i.e., dominium] that strictly"; but the point is, typical in scholastic nit-picking, that "we shall not take [it] so strictly here." And in point of fact, Summenhart went on to talk specifically about ius in re: a person with a property right can be called a lord of that thing. Elsewhere Summenhart would write that "everyone has as much right or dominion over something as he is allowed to exercise action concerning the thing" (Unde tantum quisque habet iuris vel dominii in aliquam rem, quantum actionis licet sibi exercere circa rem) (107). Thus, one with a "fuller" right like dominium can do more things with the item than a person who has only usus, which is hardly an idea novel to Summenhart. In other words, it seems that Summenhart was suggesting a conceptual assimilation of certain kinds of ius to dominium (namely, when the ius in question gives us dominus-like capacity for [non-]action), not that the terms are synonymous. The example Summenhart adduces of celestial bodies having "a right to exercise various actions" over lower entities, saying that this right is called dominion (85), seems to bear out this interpretation as well.

Clearly, the situations where ius and dominium can be treated in virtually the same way will be many, and it is this subset in which Summenhart (and Varkemaa) is most interested in. Given the overlap, it will be no surprise that Summenhart reserves some space for a discussion of how libertas fits into the picture. This time around Summenhart fused a passage from the Institutes (1.3.1) with his claim that liberty was a species of ius. The result was that a "free man" had a right to do what he pleased, but with one important qualification: as the Institutes passage pointed out, a free man's "natural faculty" is circumscribed by "what is prohibited by force or law" (vi aut iure). Varkemaa interprets this passage to mean that Summenhart thought "man has a natural right of dominion of doing whatever he is able unless a just law prohibits that particular action" (89). But clearly the natural faculty, already circumscribed by "the law," is limited to "free" people. The important question thus seems to be: who qualifies as liber? Related to this question is determining where the limits of "the law" lie. In another question, Summenhart argues that one might even cut off one's own limbs ex causa legitima despite the fact that we read in the Digest "no one is lord of his own limbs" (cf. Dig. 9.2.13 pr.). Thus, for Summenhart, like for most medieval theorists, matters touching on the interests of the "state" (interest reipublicae) may trump existing legislation. The other point is, of course, this natural faculty to act in quotidian life is circumscribed by ius. As Varkemaa notes, Summenhart belongs to the camp that sees (a free man's) actions as permissible except where there is a prohibiting law (cf. the later discussion on just acquisition of lordship on p. 235). If this seems only to be commonsense, Pope John XXII's argument that [the act of] usus cannot be just and licit without ius is an example of the opposite position.

In the third chapter, Varkemaa deals with Summenhart's dubious goal of harmonizing and systematizing Gerson's various classifications of dominium. When Summenhart concludes, finally, that there are twenty-three kinds of dominion one is reminded of the enterprising Johannes Monachus, whose commentary (ad VI 1.6.16), listed some twenty definitions of ius. [6] Varkemaa's analysis (thankfully) runs mostly in terms of Gerson's sixfold classification of dominion (beatificum, originale, gratificum, evangelicum, canonicum, and politicum) along with a section devoted to natural dominion. In these passages it does seem more obvious that Summenhart is using ius and dominium interchangeably, but he does not provide any better theoretical foundation for their equivalence. Instead the emphasis seems to have been explaining the differences between the types of dominion in terms of their foundation.

The fourth chapter deals with property rights. One of the more interesting aspects of Summenhart's account of property is how civil, divine, and natural dominia coexist in the postlapsarian world. According to Summenhart, the distinct civil dominia have been superimposed on the undivided divine and natural dominia. Summenhart was more troubled with why civil dominium became distinct dominia than how it could coexist with undivided supernatural forms. Summenhart defended the institution of private property on the basis of expediency. Given humankind's fallen state, four problems would have ensued had private property not come into existence: the lands would have remained uncultivated; a path to fraud and malice would have been opened; good people would have been left with the lesser portions (peius, viliora: not quantitatively less) while the wicked would take the better ones; and, lastly, there would never have been peace among humankind. (There is a sense that each evil is a further consequence of the one preceding it.)

Summenhart's criticism of a communal property regime was thus based, in part, on the observation that (good) people will get tired of others always claiming the better shares. At the same time, however, he defended the (unequal) distribution of resources in a world of private property with the observation that people "could divide and appropriate" common things "by common agreement" without injustice or injury since "no injury is done to the willing" (209). [7] In other words, Summenhart thought an unequal distribution of property could be justified on the presumed consent of our ancestors, but denied that they could have consented to an equal share in the property with the knowledge that the use and enjoyment of this property would be unequal. If consent to a given arrangement determines whether injustice or injury can be done, then it is not clear how one arrangement can avoid the strife that arises from an unequal division of resources while another cannot. The question of expediency cannot be resolved until that problem is answered.

Summenhart also wrestled with the relationship of ius naturale to the institution of private property. The problem was an old one: could immutable natural law somehow dictate that all things should be common at one time (e.g., in the state of innocence) and that they should not be common at another. Summenhart's solution was, in essence, to imagine that natural law's command regarding property amounted to a conditional proposition along the lines of "let property be common only for those good enough to live in such a way; otherwise, let it be private." Thus it is not that the natural law has changed but that humankind's nature relative to it has done so. Varkemaa reads Summenhart's stress on right reason in this context as grounds "to think of natural law as a kind of art of reason rather than a collection of fixed principles" (201). I am not sure what this means. Summenhart wrote that "the right reason from which the law of nature (lex naturae) proceeds would never have dictated this concerning corrupted men;" Varkemaa therefore also concludes that right reason is logically prior to natural law for Summenhart (202). This makes more sense, but does not seem a remarkable achievement for a medieval thinker. Were others inclined to think that natural law dictated the content of right reason, or, worse, that natural law proceeded from faulty or imperfect reason? Is it too skeptical to think Summenhart concluded private property must be sanctioned in some way because both the institution and natural law (which is both immutable and incapable of being contradicted) were known to exist in his own day?

The final sections of chapter four discuss lesser property rights. Summenhart relied on the terminology of Roman law as mediated by Azo and the canonist Hostiensis. For the most part Summenhart's descriptions of proprietas, possessio, usus, and ususfructus are unremarkable. Of interest, however, is his discussion of whether dominium utile, a medieval invention, is anything different than usufruct. Dissatisfied with Hostiensis's inconclusive discussion in the Summa aurea (ad X 2.20, n. 11), [8] Summenhart concluded that the two were intrinsically the same, but that dominium utile could be distinguished by "extrinsic circumstances" (229). This is somewhat surprising since dominium utile, like the Roman emphyteusis, was alienable and was subject to the rules governing inheritance, while usufruct, which was a personal servitude (as Summenhart seemingly understood: 213-215), was strictly speaking neither alienable nor transferable (e.g., Cod. 3.33.16). Thus despite the significant differences, Summenhart's commitment to the idea of rights as relations meant he denied any essential difference since the nature of the relationship is the same: both a usufructuary and a vassal (or emphyteuta) can use and enjoy the object of the relation. Features such as the limited duration of usufruct are only accidental qualities.

There are, finally, a few problems of a more technical nature. References to Roman and canon law are sometimes identified (sometimes incorrectly), sometimes not (e.g., 67 n. 4, 161 nn. 137-138, 198, 199 n. 33, 222 n. 90 [cf. 221 n. 88], 240, 241 n. 136). The use of early printed editions is more problematic in that they are referenced too generally. For example, anyone who wants to track down what Bartolus said about the nature of possessio (245-246) must use the precise edition Varkemaa used or rely on the pointer to his commentary to the title "De acquirenda possessione" (= Dig. 41.2); that amounts to 127 columns in the edition I used (Venice 1471). Fortunately the passage is question was the commentary to Dig. 41.2.1 pr., but I was not always so lucky when checking other references. The English portions of the text have been well-proofread, but there are a few dozen minor misprints in the Latin footnotes. [9] Varkemaa also, it seems, followed the punctuation of his edition too closely, which has little in common with how a modern editor would punctuate the text. This can lead to some strange quotations; I think it should be pointed out that in the passages which he quotes where the sentence ends with a conjunction like igitur (e.g., 117 n. 17), the conjunction is pointing forward to the next point or section, not backward to what is just been said (regardless of how the printer chose to rubricate the text). [10]

As I have said, I find some of what Summenhart had to say, or what Varkemaa had to say about Summenhart, problematic. But on the whole there is a lot to digest here and it is unlikely that a book of this nature could fully satisfy everyone. Moreover, it is a book that both demands and deserves a careful reading, which is what I have tried to do. In the end, Varkemaa deserves our thanks for making the first sustained investigation into Summenhart's theory of individual rights. We can only hope that future studies of Summenhart and other late medieval figures follow. After reading this one, I for one would like to see the Dominican Antonino as the subject of a similar book. --------

Notes:

1. Cf. Odd Langholm, The Legacy of Scholasticism in Economic Thought: Antecedents of Choice and Power (Cambridge, 1998), 164- 165.

2. Varkemaa refers to Azo as Portius Azo (231, 245, 253), but Portius was, if anything, his surname; see Dizionario biografico degli Italiani 4 (1962), s.v., Azzone; available online: http://www.treccani.it/enciclopedia/azzone_(Dizionario-Biografico)/

3. Godfrey must have understood that as well, otherwise when he wrote that, in extreme necessity, "habens usum alicuius sibi necessarii, habet etiam dominium illius et aequaliter unus sicut alius, quia quilibet habet ius utendi illo ut re sua," one might be inclined to think Godfrey thought usus was a form of dominium as well rather than that people in extreme need use such things because it actually belongs to them (according to Gregory the Great). See Jean Hoffmans, ed., Le huitiéme quodlibet de Godfroid de Fontaines (texte inèdit) (Louvain, 1924), 105.

4. I have had to rely on a different edition of Antoninus's Summa than Varkemaa (he used a 1480 Venetian printing while I used a Venetian edition from 1485), but the problems with nam and tantum appear in quotations of Summenhart's Septipertitum opus as well. In this case compare pages 56-57 (cf. 78 n.38) with the relevant portions of the Summa, available here: http://daten.digitale-sammlungen.de/~db/0004/bsb00045750/image_107 (the work's URI is urn:nbn:de:bvb:12-bsb00045750-1). In the final quotation, I translate the text from the online text.

5. Again my edition differs from Varkemaa's. He relied on an edition from 1500, while I have made use of an Augsburg printing from 1515, available online: http://daten.digitale- sammlungen.de/~db/0001/bsb00018872/image_1 (URI: urn:nbn:de:bvb:12- bsb00018872-8)

6. See Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150-1625 (Grand Rapids, MI, 1997), 40-41, 48.

7. Varkemaa translates the final portion as "willingly there is no injury" (volenti non fit iniuria); cf. Dig. 47.10.1.5 and VI 5.12 reg. 27. Note that this was only one of three ways in which common property could be divided; the other two depended on the authority of a person who had either paternal or political potestas.

8. Hostiensis (Henry of Susa), Summa aurea (Venice 1574; repr. Turin 1963), coll. 974-975.

9. There is one omission from the bibliography: on page 199 "Tierney 2001" is a reference to: Brian Tierney, "Permissive Natural Law and Property: Gratian to Kant," Journal of the History of Ideas 62, no.3 (2001): 381-399.

10. E.g., 202n42 reads: "...ideo subiungo etiam tres conclusiones, est ergo." My text has (tract. 1, q. 10, sig. H3rb-va): "...ideo subiungo etiam tres conclusiones. est ergo SECUNDA conclusio. Dominiorum..." (the capitals indicate a rubric, which starts a new page).