The origins of the modern notion of subjective right. Has Michel Villey’s thesis been passed?

Abstract

In his harsh criticism of the notion of subjective right (SR), Michel Villey argued that (A) the SR did not exist in Roman law, but that (B) emerged at the dawn of Western modernity as the main legal consequence of nominalism that William de Ockham introduced in philosophy and theology. And, furthermore, that (C) in Ockham it would be possible to already find a legal theory in which the SR appears as the main meaning of the law. Each of these historical theses has been strongly discussed and almost all have been overcome. However, this article attempts to show that, beyond his historical inaccuracies, Villey was right in the central philosophical core of his thesis: the necessary association between nominalism and the notion of SR that has been imposed on legal modernity.