Historical Evolution of Rights: Medieval to Modern Perspectives

Medieval vs. Modern Rights: A Fundamental Divide

Medieval practice rarely recognized libertate iura and individuals as such, a stark contrast to the fundamental feature of modern law stemming from revolutionary declarations of rights. Rights and freedoms in the Middle Ages possessed a corporate structure, being the heritage of the manor, place, valley, city, village, or community. Therefore, they belonged to individuals only insofar as they were deeply rooted in these lands and communities.

The Concept of "Positive Freedom"

The concept of rights entrenched in history, and their consequent unavailability to those holding political power, offers an alternative interpretation for advocates of the ideology underpinning modern law. This perspective is incompatible with the modern conception of freedom, including the free expression of will and "positive" freedom. This dimension of freedom, indispensable in modern law, stands irreconcilably opposed to the medieval world. While the medieval world entrusted rights and freedoms to the force of a historically founded natural order, it simultaneously prevented individuals from enjoying the essence of freedom: the ability to desire a different order. It is the lack of this "positive" freedom, which at its root is the progenitor of political freedoms, that distinguishes the medieval from the modern.

England's Gradual Transition to Modern Freedom

Continuity in British Constitutional History

England largely based its doctrine of historical and political identity on the image of continuity between medieval and modern freedoms. England considers that British constitutional history demonstrates a gradual and relatively painless transition from the medieval to the modern order of freedom. This occurred regardless of the presence of a highly concentrated sovereign political power, which, as such, was able to define areas of authority for individual freedoms—first for subjects, and then for citizens.

The Magna Carta: A Landmark Document

The Magna Carta is, apparently, only one of many contracts of domination established in Europe. Article 39 of the Charter states:

"No freeman shall be arrested or imprisoned, or deprived of his rights or property, or placed outside the law or exiled, or deprived of his rank in any other way, nor will we use force against him, or send others to do so, except by court order from his peers and by the law of the land."

Advocates of the historicist model, particularly within the British constitutional tradition, highlight other significant features of the Magna Carta.

British Model's Distinctiveness

The British model emancipated itself from the medieval liberties prevalent in the rest of Europe, which tended substantially to diminish into merely the heritage aspect of secure possession of goods, confirmed by usage and time.