This chapter aims to provide an introductory account of conceptions of natural rights in the sixteenth and seventeenth centuries. That is, of how human beings were considered to hold certain rights by virtue of their human nature or as conferred by natural law. It will show how conceptions of natural rights differed, as embedded in different theoretical frameworks, and were put to different political, social, and religious uses. At the same time, in several instances conceptions of natural right were used ‘in action’ in similar ways, despite the different theological or philosophical frameworks in which they were imbedded. Despite differences, then, early modern conceptions of natural rights shared some features, and were put to uses, that may seem counterintuitive to the modern reader.

Between 1500 and 1700, the right of groups and nations to trade were conceptualised and even enacted through a range of legal claims and practices. It is nevertheless possible and useful to make some generalisations about the rise and fall of the military, economic, political, religious and legal powers of various states and their conceptualisations of the right to trade. The primary texts bring out two salient distinctions, concerning the collective right to trade. Some commentators argued that the right to trade was limitable, while others considered it non-derogable. Another group of texts grounded the right to trade primarily in divine law, while others emphasised natural, international or municipal law.

Today, by freedom of religion we mean more or less the following: the principle that every individual has the right to believe in any religion she wants, including the right not to believe in any, and consequently the right to profess her belief or unbelief without being persecuted, discriminated against, or penalised in any way by the government. For most of us, this principle is not simply a cornerstone of our democracy, but also an essential component of our identity. In a sense, the right to freely choose what to believe without being persecuted for our choice is almost a sacred commandment that we all honour --and expect each other to honor-- in our secular, modern, and tolerant society.

It is a powerful question, that of the English writer Mary Astell in 1700: ‘If all Men are born free’, she asks, ‘how is it that all Women are born slaves’? What seems at first glance to be a striking statement of women's rights, however, Astell's words turn out to be a full-on attack on the liberal political theory of the rights-theorist, John Locke. Her presumption is that no person is ‘born free’; indeed, all are born under a condition of subjection to God. As Astell knew full well, in England, marriage stripped a woman of rights, those to property and those to her own person, to her sexuality and to control over her labor. Since this chapter is interested in the history of women's rights, it is best to consider what sorts of rights might be considered. Political rights, after all, are only one kind of right. And the category of women also presents challenges: a woman's marital position determined her rights.

The rights of peoples in Spain and its empire formed part of wider pan-European discussions, which were informed by both secular and religious normativities. According to those, the universe was the aggregate of constant and multiple exchanges. Though these exchanges were not necessarily equal nor simultaneous, they nonetheless formed the basic skeleton of all social, political, and legal interactions. Jurists and theologians who set out to explain how this system operated suggested that a pre-set order that was stable, prescriptive, and indisputable oversaw these exchanges. This order indicated the appropriate place for all peoples and things and gave each a particular function. It resulted in a constellation, which was not arbitrary, but instead corresponded to an objective situation, a ‘state of stability’ or an ‘unaltered condition.’

For Sultan Alau’ddin, the ruler of Gowa on South Sulawesi between 1596 and 1639, the freedom of the seas was paramount. His kingdom, centred on the city of Makassar, was ideally situated as a maritime crossroads between the Java Sea and the spice islands of Maluku. International traders, including Chinese, Malay, and European ships, frequented Makassar’s harbour, profiting from the policies of open navigation sanctioned by the sultan. Yet in 1615, another maritime power that recently had become active in the area, the Dutch East India Company (VOC), sought to undermine Makassar’s position by establishing a monopoly on the spice trade. When the conflict escalated, Sultan Alau’ddin sent a message to the Company’s governor-general and strongly repudiated Dutch attempts to restrict navigation and trade in the area: ‘God made the land and the sea; the land He divided among men and the sea He gave in common.

The Leveller John Lilburne spent repeated spells accused of sedition or treason between 1638 and 1653. He was both a lay lawyer and a cause lawyer, pursuing the full range of what he insisted were the procedural rights of anyone on trial on criminal charges. Though he sometimes pointed to the law of England to make these claims, he was more insistent and consistent in basing these rights on the laws of God, nature, and reason. In this way, he moved from national to natural modes of rights claiming—he argued for human rights. This essay draws on the scores of publications where he made these claims. He never convinced his judges to accept them. But he convinced his jurors and people in the streets. Centuries would pass before the procedural rights he promoted were accepted as law. These rights would be even more fully embraced around the globe in the major human rights declarations of the twentieth century.

There are many reasons why Roman law probably shouldn’t be included in a study tracing the origin of rights. Roman law, first of all, was the law of an ancient slaveholding civilization, built on a ruthless legacy of war and conquest. As any student of Roman law will know, slavery was interwoven into the fabric of Roman law, making it impossible to understand fully how the Roman legal system operated without recognizing the everyday legal reality of Roman slavery. Practically every aspect of Roman law depended on whether those subject to it were legally free or slave. Given this illiberal legacy of slavery and the basic inequality of status encoded into Roman law, it’s difficult to see how Roman law could plausibly serve as a model for theorizing rights.

Rights, in the Early Modern era, were conceived in terms of divine and natural law. They were understood to be powers, or faculties, belonging to an individual, or to communities, that had existed from the beginnings of time. The intellectual underpinnings of rights theory were derived from the moral theology of the scholastics, and lay in the idea that rights were a God-given power of the soul, and an expression of active virtue. This was true in the Medieval era, and it remained so in the Early Modern, when the origins of ideas about natural rights lay in the poverty controversies of the mendicant orders in the thirteenth and fourteenth centuries. The appeal to the concept of a natural right was first and foremost a moral endeavour.

War and peace underwent radical changes in early modern Europe. Warfare itself, along with diplomacy and peace-making, changed dramatically during this period, but so too did the discussion of war and peace within the discursive domain of moral and juridical-political thought. Fundamental shifts in the early modern discussion of rights of war and peace occurred because previous assumptions were radically challenged by concrete events and experiences (such as the Reformation or the discoveries and occupation of new continents by Europeans). This in turn led to new ways of moral and political thinking which sought to find answers to these new challenges.

What were rights in seventeenth-century France, within the kingdom and its possessions? The French word ‘droits’ (rights) was rarely used. Jurists and claimants talked about liberties, privileges, exemptions, franchises. Liberties were understood in terms of entitlements, which were collective rather than personal. Subjects were granted different privileges depending on the order or estate to which they belonged. The clergy and the nobility enjoyed privileges denied to the common people (they did not, for example, pay taxes) because of the specific social roles they performed. People also enjoyed additional privileges and exemptions to the ones attached to their orders. They belonged to other groups, whether they were provinces, cities, communities, corporations, that granted specific privileges which the sovereign had to respect.

In 1651 Thomas Hobbes’s Leviathan announced that the ‘question…by what door the Right, or Authority of Punishing…came in’ was one of ‘much importance’. In this he echoed Hugo Grotius who, while differing from Hobbes in the answer he provided, had written in 1625’s De Jure Belli ac Pacis [The Rights of War and Peace], that the ‘Origine and Nature’ of punishment had been ‘misunderstood…[giving] Occasion to Many Mistakes.’ This right to punish was seen by early modern political thinkers as needing justification. This was particularly true in the context of voluntarist models of legitimacy according to which individuals chose to become members of the political community and the right to enforce obedience wielded by the governors of these communities had its roots in the equal and natural rights of subjects themselves.

This chapter examines how active citizenship or political participation, and representation were understood in Europe from the early sixteenth century to the mid seventeenth century. There are two central arguments which I put forward and seek to defend it what follows. First, there was a noticeable shift from direct participation to representation as the main form of political involvement during this period. Second, and more importantly, whereas in the early part of the period political participation was understood mainly as a duty, by the mid seventeenth century, when representation was conceived as the chief form of participation, it was increasingly comprehended as a right. The chapter begins by discussing Niccolò Machiavelli’s notion of direct participation of the people, before moving to Northern Europe, where the idea of active citizenship was understood in more restrictive terms. Shunning popular political participation, citizenship was reserved for the elite.

Between the 1570s and 1680s, England established more than two dozen overseas colonies and trading posts throughout the world. In mainland North America, the colonies included Virginia, Maryland, Massachusetts and several other New England colonies, North and South Carolina, New York, New Jersey, and Pennsylvania. In the Caribbean and the North Atlantic, colonies were founded in Newfoundland, Bermuda, and Barbados, among several others, to which Jamaica was added by conquest in 1655. Various trading posts, or factories, were established—usually with the permission of the local populations—in Hudson’s Bay, India, Africa, and the East Indies. As a result of these activities, by the end of the seventeenth century, more than half a million English subjects, or about ten per cent of the nation’s population, lived across the seas.

The expression ‘divine right’ might sound obsolete to modern ears; indeed, it might recall images of an archaic and irrational society. In early modern Europe, things were far from it. As we shall see, divine right represented a systematically argued philosophical theory at the centre of which stood the justification for strong, earthly, power. Divine right is here understood in a specific political sense since it mainly concerns the authority of monarchs (not of bishops and not of republican governors). Such theory argued that God had given power ‘directly and immediately’ to kings, not to the people. Hence the ruler was accountable to none but God; had always to be obeyed; and held unlimited power (consequently, no form of resistance was legitimate). Divine right theory had at its core the idea, and the practice, of the individuality of kingly right, not of people’s individual rights. It expounded a subjective right, not an individual one.

Many of us might imagine that it was the early modern period during which an individual right to property was first conceived as something that we could claim against all other people and against the state itself. The reason we could do so is because such a right was grounded in natural law and therefore preceded the creation of political society. Indeed, the state, according to this account, was created to protect such rights. We would probably have John Locke in mind as the basis for this argument and it is true that such an account of the right to property could be derived from his work. However, Locke’s understanding of property was not typical in the early modern period. Instead, it was far more common for early modern political theorists to see the right to property as something that was established by civil society and therefore completely dependent upon the laws of the state.

Since Richard Tuck published his influential study The Rights of War and Peace in 1999, the works of the Italian civil lawyer and Regius professor of civil law at the University of Oxford, Alberico Gentili (1552-1608), have received much scholarly attention. Tuck presented Gentili as the foremost representative of the ‘humanist’ tradition in the domain of the law of war, and he also attempted to show that the early political writings the Dutch jurist Hugo Grotius (1583-1643) wrote as ‘a major apology for the whole Dutch commercial expansion into the Indies’, were very much in this same tradition. Although Tuck referred in this context mainly to De Indis as well as to the first edition of De jure belli ac pacis of 1625 and conceded that Grotius introduced a different, more substantial account of human sociability in the later editions of his main work, his assessment of Grotius’ natural law theory has triggered numerous critiques and prompted scholars to compare Gentili’s and Grotius’ position on various issues.