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Liberty and Law

Liberty and Law

Brian Tierney
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    Liberty and Law
    Book Description:

    Liberty and Law examines a previously underappreciated theme in legal history - the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm of human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government.

    eISBN: 978-0-8132-2582-1
    Subjects: Religion

Table of Contents

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  1. Introduction
    (pp. vii-xii)

    The purpose of this book is to present some illustrations of the history of an idea—the idea of permissive natural law—that engaged the attention of major thinkers over a period of several centuries but that seems to be little noticed in the modern scholarly literature. In mid-seventeenth century, John Selden observed that much trouble was caused by neglect of the “obvious and elementary distinction” between preceptive law and permissive law. And, so far as the history of natural law is concerned, things have not improved much since. At best, and rarely, one encounters a few lines of dismissive...

  2. Part I. Foundations

    • 1 Early Sources: Stoic and Christian
      (pp. 3-14)

      The most important ancient sources for medieval Christian authors were the Old and New Testaments and the writings of the early church fathers, especially Augustine, but ideas derived from Greek philosophy were also influential. One such ancient teaching was the Stoic doctrine of natural law together with the associated Stoic concept of adiaphora, “indifferent things,” particularly as these ideas were adapted and transmitted by Cicero.¹

      Stoics held that the whole cosmos was pervaded by a divine intelligence that guided all its activities through a rational natural law. Human reason was a part of the divine reason, and by living in...

    • 2 Canonistic Jurisprudence
      (pp. 15-48)

      The twelfth century was a time of new vitality in many spheres of life and thought. Most importantly for us, the age produced a great revival of jurisprudence, first the recovery of the whole corpus of Roman law, then an immensely influential codification of church law in Gratian’sDecretum. Gratian’s work presented a rich body of canonical material—decrees of popes, canons of general councils and local councils, excerpts from the writings of church fathers—all linked together with a critical commentary. Soon after the work appeared it came to be accepted as a standard text for teaching church law...

  3. Part II. Thirteenth-Century Theologians

    • [Part II. Introduction]
      (pp. 49-50)

      During the thirteenth century juridical reflections on the idea of a permissive natural law fell into the background. The canonists turned their attention to interpreting the flood of new legislation put forth by popes and councils, and the Roman lawyers had never been as interested as the canonists in exploring this theme.¹ But, just as the canonists were turning away from these studies, discussions of natural law became more and more prominent in theological writings.

      This was something of a new departure for the theologians of the early thirteenth century. The standard text for the teaching of theology, theSentences...

    • 3 Parisian Masters
      (pp. 51-68)

      Writing in the 1220s, William of Auxerre included a tractate on natural law in hisSumma aureaand referred to this law as “the origin and norm of all the virtues.”¹ A little later the author of theSumma Halensis, influenced both by William of Auxerre and earlier canonistic writings, also wrote extensively on natural law and included in the work a section entitledOn the Laws of Permission.

      William of Auxerre is remembered especially for his introduction of Aristotelian learning into the teaching of theology. But for our purpose a comment of Odon Lottin is more relevant. Lottin observed...

    • 4 Thomas Aquinas
      (pp. 69-92)

      Aquinas’s treatment of natural law is often regarded as the paradigmatic version of the doctrine; but, viewed from the standpoint of our particular inquiry, his teaching may also appear paradoxical. Aquinas presented a powerful doctrine of human freedom and a powerful doctrine of natural law, but he did not unify the two themes by appealing to the idea of permissive natural law. Aquinas did not deny that law could be permissive and he crafted a system of natural law that left room for human free choice; but he never overtly presented a doctrine of permissive natural law as many of...

  4. Part III. Fourteenth-Century Variations

    • [Part III. Introduction]
      (pp. 93-94)

      In the first part of the fourteenth century three major thinkers contributed significantly to the development of ideas about permissive natural law and permissive law in general. They came from different fields of interest and brought different approaches to the subject. William of Ockham was an eminent philosopher, Marsilius of Padua a radical political theorist, and Johannes Andreae an academic canonist. The relevant works of Ockham and Marsilius were occasioned primarily by external events, especially by a controversy between Pope John XXII and the leaders of the Franciscan Order, along with a concurrent dispute between the pope and the emperor...

    • 5 William of Ockham
      (pp. 95-121)

      The bitter dispute that broke out between Pope John XXII and the Franciscans in the 1320s had enduring repercussions in later Western thought, mainly because the most brilliant philosopher of the age, the English Franciscan William of Ockham, became involved in it.¹ To understand how the controversy helped to shape Ockham’s teaching on natural law, we need first to glance at his earlier theological writings and then consider the particular issues that were involved in the Franciscan dispute.

      Ockham has long been known as an outstanding proponent of a nominalist and voluntarist philosophy, one who emphasized both the free will...

    • 6 Marsilius of Padua
      (pp. 122-141)

      Marsilius of Padua, one of the most famous medieval political theorists, was a contemporary of Ockham and, like Ockham, a vehement critic of the fourteenth-century papacy. The whole purpose of the Paduan’s master work, theDefensor pacis, was to attack the “perverted lust for rulership” of the Roman pontiffs; according to Marsilius it had led to endless strife among the cities of Italy with the result that they endured “a harsh yoke of tyranny instead of liberty.”¹ The Defensor pacis was divided into two main sections or Discourses with a third Discourse that provided a brief summary of the preceding...

    • 7 Johannes Andreae
      (pp. 142-156)

      The writings of Johannes Andreae, the foremost canonist of his age, illustrate a different aspect of fourteenth century thought on permissive law. Johannes was a close contemporary of Ockham and Marsilius, but he lived in a different world from theirs, and in a different world of thought. While they passed their lives in exile, condemned and excommunicated by the church, he reigned as a highly respected professor, “the fount and trumpet of the canon law” according to a later admirer, in the great law school of Bologna.¹ Johannes stood apart from the Franciscan dispute in which Ockham and Marsilius became...

  5. Part IV. Indifferent Things:: Adiaphora in the Church

    • [Part IV. Introduction]
      (pp. 157-158)

      The reform movements of the sixteenth century also engendered, along with much new religious vitality, a maze of sectarian controversies, which are now mirrored in a complex body of modern scholarship. As usual, I want to pursue through the maze only one thread of thought—a theme that emerged in a new kind debate concerning the old idea of adiaphora, indifferent things, and their role in Christian life and Christian worship. Disputes arose among different groups of Protestants not only about what was commanded in scripture, the all-sufficient word of God, but also about what was permitted. All the controversies...

    • 8 Reformation Adiaphora: Lutherans and Anglicans
      (pp. 159-171)

      The sixteenth-century arguments were rooted in some key texts of St. Paul, often quoted by the disputants, that reflected an ambivalent attitude to the ceremonial precepts of the Old Law. Paul insisted that Christians were freed from the burden of such laws, but he also emphasized that converts should not use their freedom in ways that gave scandal to those who still observed them. Thus, Paul circumcised Timothy, son of a Jewish mother, “on account of the Jews in those parts,” but he would not circumcise Titus, a Greek convert.¹ Accordingly, Paul wrote, “All things are permitted to me, but...

    • 9 Richard Hooker
      (pp. 172-190)

      The foregoing material provides some necessary background for understanding Hooker’s work, but it was not concerned directly with our theme of permissive natural law, still less with the ideas of the medieval scholastic philosophers who had principally shaped the concept of the law of nature in earlier centuries. But Hooker made their ideas a central feature in his far-reaching discussion of right order in church and state. In doing so he reemphasized the idea of permissiveness that had characterized earlier natural law theories, and he related this idea both to the ongoing discussion of adiaphora in the church and to...

  6. Part V. Natural Law and International Law:: Suarez and Grotius

    • [Part V. Introduction]
      (pp. 191-192)

      The Protestant Reformation was only one of the profound changes that influenced natural law thinking—and especially the idea of permissive natural law—in the course of the sixteenth and seventeenth centuries.

      Two other features of the age were especially important.

      One was the consolidation of more centralized national monarchies, accompanied by a doctrine of sovereignty classically formulated by Bodin, a doctrine asserting that the essence of sovereignty was the power to make laws. Also, during the same era, the great voyages of discovery opened up new worlds for Western commerce and Western settlement. Both of these developments stimulated new...

    • 10 Francisco Suarez
      (pp. 193-214)

      In turning from Protestant theological disputes to Spanish neoscholasticism we might seem to be entering a wholly different world of thought. Suarez and Hooker, for instance, were close contemporaries but in some ways they look like polar opposites, the one a Spanish Jesuit the other an English Protestant. However, they shared a common heritage of scholastic philosophy—though Suarez was the more massively learned of the two in that field—and there were some significant resemblances in their thought. Both writers presented theories of law evidently influenced by Aquinas and both departed in some ways from the teaching of the...

    • 11 Hugo Grotius
      (pp. 215-248)

      Hugo Grotius is a figure of outstanding importance in the history of international law, and he has sometimes been regarded also as the father of a new “modern” doctrine of natural law and natural rights. For the purpose of our inquiry the principal interest of his work is his way of using the idea of permissive natural law in expounding theius gentium, the law of nations, and especially the law of war.

      It is possible to consider the work of Suarez without paying much attention to the details of his life, passed mostly in quiet study and teaching at...

  7. Part VI. For and Against:: Selden, Pufendorf, and Some Critics

    • [Part VI. Introduction]
      (pp. 249-250)

      The works of the two scholars to be considered next reflect the influence of two other major thinkers of the seventeenth century, Grotius and Hobbes. Selden and Pufendorf accepted much of Grotius’s teaching on natural law along with Hobbes’s doctrine that law derived its force from the will of a sovereign legislator. They differed from one another, though, in their approaches to permissive law and obligation. Selden accepted the idea of a permissive natural law and emphasized it probably more than any other seventeenth-century author. Pufendorf addressed the issue more skeptically.¹

      In their treatments of natural law, both authors had...

    • 12 John Selden
      (pp. 251-272)

      John Selden (1584–1654) was renowned in his day as the most learned man in England. He not only acquired a profound knowledge of English law and its history but also, more unusually, he was an exceptionally erudite student of oriental languages, especially Talmudic Hebrew and Aramaic. Selden was learned enough to write commentaries on Talmudic law that would have been worthy of any contemporary rabbi and, indeed, he has been called half seriously the chief rabbi of England.¹ His work is important for our theme because, to a quite unusual extent, he invoked the idea of permissive natural law...

    • 13 Samuel Pufendorf
      (pp. 273-290)

      Samuel Pufendorf was probably the most influential writer on moral philosophy in the second half of the seventeenth century.¹ His major works,On the Law of Nature and of Nations(1672) andOn the Duty of Man and the Citizen(1673) were widely read, used as university text books, and translated into several languages.² He grew up in an age of bitter religious controversies during the last years of the Thirty Years War and in the troubled aftermath of the war in Germany. Understandably, then, his political theory favored the institution of a strong centralized state. He also, like Selden,...

    • 14 Critics of Pufendorf: Barbeyrac and Burlamaqui
      (pp. 291-304)

      Although Pufendorf’s work was very influential his views were by no means universally accepted. Leibniz was an early critic and orthodox Lutheran theologians found much to object to in his writings. On the question of permissive natural law two authors in particular, Jean-Jacques Barbeyrac and Jean-Jacques Burlamaqui, dissented from his views. These authors are sometimes regarded as representatives of a “Swiss school” of eighteenth-century thinkers. Barbeyrac was a Huguenot refugee who grew up in Switzerland and taught for several years at Lausanne. Burlamaqui was a son of a patrician Swiss family who earned an early reputation as an outstanding scholar...

  8. Part VII. Natural Law and the German Enlightenment

    • [Part VII. Introduction]
      (pp. 305-306)

      The cultures of the Enlightenment proceeded in different ways in different countries. In England moral philosophy moved from Hutcheson and Hume to Bentham and Adam Smith. France gave us Voltaire and Rousseau, and the French Revolution. In Germany professors ofNaturrechtcontinued to discuss, in new ways, problems that had been bequeathed to them by Pufendorf and his critics. A central theme in their work was the continuing conflict between rationalist and voluntarist theories of moral obligation or, as Ian Hunter sees it, between civil and metaphysical philosophies.¹ But, alongside these problems, there was also another debate that focused on...

    • 15 Wolff to Kant
      (pp. 307-325)

      Before turning to Kant it will be useful to glance at the work of some of his eighteenth-century predecessors who wrote on permissive natural law. The ones to be considered are Christian Wolff, Joachim Darjes, and Gottfried Achenwall.¹ Wolff is the most distinguished of the three, but Darjes provided the most detailed discussion of the arguments for and against the idea of permissive law, and Achenwall is interesting in the present context because his De iure naturae was used as a textbook by Kant in some of his courses on ethics. The authors were chosen because their works all offer...

    • 16 Immanuel Kant: Permissive Law and Property
      (pp. 326-354)

      In a path-breaking article published in 1982 Reinhold Brandt called attention to the significance of the concept of permissive natural law in Kant’s political philosophy; the author noted that Kant’s “permissive law of practical reason” was of fundamental importance for understanding the whole theory of theRechtslehre(Doctrine of Right or Doctrine of Justice).¹ Brandt complained that this aspect of Kant’s teaching had been virtually ignored in the earlier secondary literature. Since he wrote, however, others have taken up the issues he raised and a significant body of new writing on Kant’s doctrine has appeared.² A consideration of the great...

  9. 17 Afterword
    (pp. 355-358)

    The age of Kant was also the age of the French Revolution. The political upheavals of the time, along with all the other ongoing revolutions of the eighteenth century—intellectual, industrial, demographic—brought to an end the tradition of thought that we have been considering. The skepticism of Hume and the irony of Voltaire made it difficult to go on believing uncritically that one could educe moral principles by contemplating “the nature of things” or the “nature of man.” Anthropological relativism and legal positivism undermined belief in the idea of a uniform natural law that could apply to all of...