ABSTRACT
In Chapter 10, Virpi Mäkinen presents an innovative application of the thematic of recognition in the Middle Ages by commenting the discussion of the property rights of infidels. In his commentary on X 3.34.8 (Quid super his) in 1243, Pope Innocent IV held that infidels had legitimate rights over their property. William of Ockham further developed the pope’s account in the 1340s. Ockham used the notion of rights as a universal idea embracing the entire human race and based on the natural law (ius naturale) derived from rational response to contingent situations imprinted on every human being, not on a certain religion. The infidels that Innocent IV and Ockham had in mind were Muslims, people having an advanced civilization. What should be thought of barbarians, for example, of naked savages of the New World who lived in a low degree of civilization and even practised cannibalism? Did they have rights as well? Francisco de Vitoria defended the rights of Native Americans by arguing that they had rightful ownership over those lands they occupied before the arrival of the Spaniards. Vitoria discussed the case of Native Americans under the law of nations (ius gentium) which covered all humans and was universally applicable everywhere. He took much of his discussion on property directly from Conrad Summenhart, but interestingly enough, his argumentation also went (undirectly) back to Ockham. The chapter aims to argue that Ockham and Vitoria recognized the rights of infidels from a similar basis. Granting a right to a person requires certain recognition-relations: one has to recognize another as an active, rights-bearing person who has equal access to rights and has a legal status in a society. Second, granting a right to someone also creates a mutual relationship between the rights of the receiver and the duties of the grantor.
