Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 0813225817, 9780813225814

Table of contents :
Contents
Introduction
Part I. Foundations
1. Early Sources: Stoic and Christian
2. Canonistic Jurisprudence
Part II. Thirteenth-Century Theologians
3. Parisian Masters
4. Thomas Aquinas
Part III. Fourteenth-Century Variations
5. William of Ockham
6. Marsilius of Padua
7. Johannes Andreae
Part IV. Indifferent Things: Adiaphora in the Church
8. Reformation Adiaphora: Lutherans and Anglicans
9. Richard Hooker
Part V. Natural Law and International Law: Suarez and Grotius
10. Francisco Suarez
11. Hugo Grotius
Part VI. For and Against: Selden, Pufendorf, and Some Critics
12. John Selden
13. Samuel Pufendorf
14. Critics of Pufendorf: Barbeyrac and Burlamaqui
Part VII. Natural Law and the German Enlightenment
15. Wolff to Kant
16. Kant: Permissive Law and Property
17. Afterword
Selected Bibliography
Index

Citation preview

Liberty and Law

Studies in Medieval and Early Modern Canon Law Kenneth Pennington, General Editor

Editorial Advisory Board Uta-Renate Blumenthal, The Catholic University of America Giles Constable, Institute for Advanced Study Richard Helmholtz, University of Chicago John E. Lynch, The Catholic University of America Robert Somerville, Columbia University Brian Tierney, Cornell University

Studies in Medieval and Early Modern Canon Law VOLUME 12

Liberty and Law  The Idea of Permissive Natural Law, 1100–1800 Brian Tierney

The Catholic University of America Press Washington, D.C.

Copyright © 2014 The Catholic University of America Press All rights reserved The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. ∞ Library of Congress Cataloging-in-Publication Data Tierney, Brian, author. Liberty and law : studies on the idea of permissive natural law, 1100–1800 / Brian Tierney. pages cm. — (Studies in medieval and early canon law ; volume 12) Includes bibliographical references and index. ISBN 978-0-8132-2581-4 (pbk. : alk. paper) 1. Natural law—History.  2. Law—Philosophy.  I. Title. K445.T545 2014 340'.112—dc23        2013042109

Contents

Introduction

vii

Part I. Foundations

1

1. Early Sources: Stoic and Christian

3

2. Canonistic Jurisprudence

15

Part II. Thirteenth-Century Theologians

49

3. Parisian Masters

51

4. Thomas Aquinas

69

Part III. Fourteenth-Century Variations

93

5. William of Ockham

95

6. Marsilius of Padua

122

7. Johannes Andreae

142

Part IV. Indifferent Things: Adiaphora in the Church

157

8. Reformation Adiaphora: Lutherans and Anglicans

159

9. Richard Hooker

172

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

191

10. Francisco Suarez

193

11. Hugo Grotius

215

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

249

12. John Selden

251

13. Samuel Pufendorf

273

14. Critics of Pufendorf: Barbeyrac and Burlamaqui

291

Part VII. Natural Law and the German Enlightenment

305

15. Wolff to Kant

307

16. Immanuel Kant: Permissive Law and Property

326

17. Afterword

355

Selected Bibliography

359

Index

373

Introduction

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 comment.1 Yet the subject seems important. The idea that law could be permissive as well as preceptive was an integral feature of many natural law theories from the twelfth century to the eighteenth. At the beginning of our period an anonymous canonist wrote, “Natural 1. For instance, Michel Villey understood that permissive law could be a ground of natural rights, but he dismissed the idea in a few lines as an unfortunate product of degenerate postmedieval scholasticism. Knud Haakonssen observed that, “Suarez helped to set in motion . . . the central deontic trichotomy, ‘obligatory-permitted-forbidden,’” but did not pursue the matter further. Richard Tuck mentioned permissive natural law when discussing Selden in an early work but did not return to the subject in later treatments of the author. See M. Villey, “Déformations de la philosophie du droit d’Aristote entre Vitoria et Grotius,” in Platon et Aristote à la Renaissance, edited by J-C. Margolin (Paris: J. Vrin, 1973), 213; K. Haakonssen, Natural Law and Moral Philosophy from Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 18; R. Tuck, Natural Rights Theories. Their Origin and Development (Cambridge: Cambridge University Press, 1979), 87. By way of exception, a substantial pool of Kantian scholarship has gathered around Kant’s conception of “a permissive law of practical reason.”

vii

viii  Introduction law consists of precepts, prohibitions, and permissions.” At the end of the period a famous philosopher, Immanuel Kant, observed that, if the area of permissive law were excluded, “the whole classification falls apart.” I became aware of the significance of this theme when writing a book about the history of natural rights a few years ago. I noticed then that, according to one widely held modern point of view, the ideas of traditional natural law and of individual natural rights were inherently incompatible with one another. Natural law, it was argued, limits our freedom with its precepts and prohibitions; natural rights affirm a realm of human autonomy where we are free to act as we choose. One cannot therefore derive one from the other. A variant of the argument held that rights could exist within a system of natural law, but only rights to obey the mandates of the law. (One author referred to such rights disparagingly as only “half-liberties.”)2 It occurred to me then that both lines of thought might need some reconsideration if their proponents were to take into account the teachings on permissive natural law of the authors they discussed. However, the present book is not about rights or only peripherally so. It considers some of the authors included in the previous work (and some different ones) but from another point of view. The point is that, while working on rights, I came to realize that the idea of permissive natural law had many more applications and that it called for a book in its own right so to speak. The idea could be used to assert individual rights or to defend absolute government. It was persistently invoked in arguments about the origin of private property. It was deployed in discussions about topics ranging from points of sexual ethics to the foundations of international law, with the Franciscan poverty dispute of the fourteenth century and the adiaphora controversies of the Reformation era included along the way. The study of permissive natural law is particularly interesting because it calls attention to questions concerning the intrinsic nature of law itself. Throughout our period jurists typically did not see natural law as regulating all the affairs of human life; it left large areas 2. L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), 33–36.

Introduction  ix open to human free choice. And this was not merely by default; it was seen rather as an essential feature of natural law. God had endowed humans with a faculty or power of free choice or free will, and this meant not only a freedom to obey (or disobey) the law, but also a freedom to choose among many different courses of action. Many jurists realized that, if natural law were to relate to the whole person, it had to accommodate this area of human freedom. But, for some critics, to assert that law could include free choice seemed contrary to the very nature of law itself because, they held, the essential purpose of law was to impose obligation and so limit freedom. When this issue became a matter of overt controversy, an important function of permissive natural law was to explain how a doctrine of human freedom could be assimilated within the framework of a jurisprudence of obligatory law. The issue was complicated by a paradox, or perhaps just a linguistic peculiarity, in the jurisprudence of the Middle Ages. The same words could refer both to human freedoms and to the laws that limited freedom. Hobbes wrote with guileful simplicity, “Lex enim vinculum, ius libertas est” (Law is a fetter, Right is freedom).3 But when he did so, he knew very well that the words ius and lex had other connotations. Ius had many meanings and among them it could signify law or a body of law (as in ius civile, the civil law.) The word lex seems less ambiguous; it normally referred to an enacted law. But for Christians the law of the Gospel was a law of liberty (lex libertatis); and this meaning was important in theological discourse and in the political writings of Ockham. The idea of permissive natural law again came into play when jurists undertook to sort out the different meanings of the two terms.4 In seeking to explore the many different ways in which the idea 3. Thomas Hobbes, De Cive: The Latin Version, edited by Howard Warrender, (Oxford: Clarendon Press, 1983), 207; The English Version, 170. 4. In her book, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), Annabel Brett explores the tensions and the interplay between the different meanings of ius naturale. Brett’s book came too late for me to use in writing the present work and it addresses a different set of issues. But there are some common concerns in the two works. I hope they may be seen as complementing one another.

x  Introduction of permissive natural law was deployed, I quickly realized that there could be no grand narrative of an idea slowly ripening through the ages until it reached an impressive maturity in the work of some great thinker, no story of the little acorn that grew into a mighty oak. The shape of the book had to be determined in part by the nature of the source material, and in the sources one encounters examples of persistence and change but nothing like a continuous process of organic growth. Over a long span of time and for a variety of reasons many thinkers wove the idea of permissive natural law into their systems of thought. Sometimes one can trace a coherent development of ideas from one thinker to another; but on other occasions a later author took up an idea that had become widely known in his own time and used it for his own purposes with no awareness of the work of his earlier predecessors. The chapters of the present book should therefore be read, not as a continuous narrative but rather as a series of studies that are all focused on a common theme and intended, hopefully, to enhance our understanding of its scope and significance. Some of the chapters could be read with little change as freestanding essays. However, from about 1600 onward, a more systematic argument emerged as a series of authors continued to engage with problems that had been raised in the work of Suarez and transmitted by Grotius. At times it may seem that I have strayed beyond my proper field of permissive natural law to consider extraneous topics. But this seemed necessary or useful at some points. For instance, some significant discussions of permissive law dealt with law in general, neither specifically including nor excluding natural law. It seemed appropriate to include some of this material especially since, not uncommonly, ideas developed in the general discussion were later applied more specifically to the law of nature. Again, some discussions of permissive law were concerned with specific permissions of scripture, a realm of divine law; but the relevant passages typically dealt with topics that were understood as pertaining also to natural law, such things as marriage and property rights. Finally, it seemed appropriate to occasionally discuss the work of some author who did not accept the idea of a permissive natural law although he was aware of

Introduction  xi it. The point here is that, as Holmes explained, it is sometimes significant that the dog did not bark; or, as Schneewind put it more formally, “To know what they refused to include we must know what they might have included, and did not.”5 Although it may seem to a reader that I have sometimes included extraneous material, I myself was much more aware of all that was left out. I have not tried—as if I could—to unravel the deep philosophical problems that lurk below the surface of any discourse on natural law, problems concerning fact and value, free will and determinism, reason and will as sources of law and, of course, the question whether God is a necessary hypothesis in considering such matters. Such topics are mentioned only when they occur in specific discussions of permissive natural law. I know that the philosophic problems exist and are important. It is just that this book is about something else. The book is deliberately more descriptive than analytical, and accordingly I have often included direct quotations from the sources, more perhaps than would seem stylistically ideal. Given the present paucity of work on permissive natural law it seemed that the most useful contribution I could make would be simply to present the teachings of a variety of writers who made use of the idea in their works. But even this limited task presented some problems. I tried to relate the work of an author to the context of his own time and to his own purposes, but beyond that my treatment of each author was necessarily incomplete. In discussing the work of a series of major thinkers and concentrating only on the role of permissive natural law in their writings I evidently could not give an adequate account of the overall achievement of any one of them. But that was not my intention. I was not trying to present a novel interpretation of the work of Hugh of St. Victor say, or of Aquinas or Ockham or Grotius, but only to call attention to a persistent but neglected theme that recurs in their writings and that formed a significant part of the whole tradition of natural law thinking. 5. J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998), 551.

xii  Introduction Caroline Bynum wrote in a perceptive essay that “history is, for the historian, telling a story that could be told another way.”6 What I have tried to do is to tell some other stories about the history of natural law. 6. C. Bynum, Fragmentation and Redemption: Essays on Gender and the Human Body in Medieval Religion (New York: Zone Books, 1991), 14.

PA RT I

Foundations

The most extensive and interesting body of twelfth-century writing on permissive natural law and permissive law in general is to be found in the many glosses and commentaries on the Decretum of Gratian, a work that appeared in its final recension ca. 1140.1 But before turning to those writings we need to consider briefly some of the more remote and more immediate sources that influenced the Decretists when they discussed the permissions of natural law. From the mass of ancient material I want to mention briefly here just a few key doctrines that would recur in the works of the canonists and then frequently in later writings. 1. Gratian’s work was extremely influential but the author himself is a shadowy figure about whom we know almost nothing except the name. For modern work on Gratian and the various recensions of the Decretum see A. Winroth, The Making of Gratian’s Decretum (Cambridge: Cambridge University Press, 2000). In subsequent discussions of Latin texts I have used my own translations unless otherwise indicated, but I also consulted standard translations.

 

1

1

Early Sources: Stoic and Christian

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

Stoic Adiaphora 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 accordance with reason, by living in harmony with nature—the two things meant the same to a Stoic—a person could achieve a state of happy serenity, unperturbed by all the changing circumstances of life. To live according to reason was for the Stoic to live a life of virtue; a vicious life dominated by such passions as fear, desire, plea1. Marcia L. Colish provides an excellent guide to Stoic influence on ancient and early medieval thought in The Stoic Tradition from Antiquity to the Early Middle Ages, 2 vols. (Leiden: E. J. Brill, 1985).

 

3

4  Foundations sure led to misery. But, alongside the realms of virtue and vice there existed for the Stoics an area of adiaphora, things that were neither intrinsically good nor evil. The adiaphora included all the passing vicissitudes of life, health and sickness, wealth and poverty, pain and pleasure. As the word adiaphora itself indicates, a Stoic sage was indifferent to such things. However, the authors of the middle Stoa, especially Panaetius, modified this doctrine to the extent of recognizing that some things among the adiaphora might be considered preferable to others because, although they were not virtuous in themselves, they could be conducive to virtue.2 Cicero discussed and developed the Stoic ideas in several of his writings. In the De republica he wrote that “True law is right reason in harmony with nature.”3 In the De inventione he defined natural law as “Something implanted in us, not by opinion, but by a certain natural force.” In this work the author also wrote, with an apparent echo of the Stoic doctrine of adiaphora, “Wisdom is the knowledge of what is good, what is evil, and what is neither good nor evil.”4 Cicero considered the Stoic adiaphora most explicitly in the De finibus and there he explained that he would use the Latin word indifferens to translate the Greek term. (In the same passage Cicero also used the term in mediis, that recurs in medieval writings, to explain that such matters were intermediate between vice and virtue.)5 But, Cicero argued, granted that only virtue was intrinsically good and only vice intrinsically evil, still, in the conduct of day to day life, a certain gradation in such intermediate things had to be recognized. 2. Ibid., 1, 44–46. For a study of how Stoic thought influenced medieval ideas on natural law in a way quite different from that considered in the present work see M. C. Horowitz, Seeds of Virtue and Knowledge (Princeton: Princeton University Press, 1998). 3. De republica. De legibus, edited by C. W. Keyes, repr. ed. (London: William Heinemann Ltd., 1970), 3.22, 210, “Est quidem vera lex recta ratio congruens naturae.” 4. De inventione. De optimo genere oratorum. Topica, edited by H. M. Hubbell, repr. ed. (London: William Heinemann Ltd., 1960), 2.53, 328, “Naturae ius est quod non opinio genuit sed quaedam in natura vis insevit,” 2.52, 326, “Prudentia est rerum bonarum et malarum neutrumque scientia.” 5. On Stoic Good and Evil: De finibus bonorum et malorum Liber III and Paradoxa Stoicorum, edited by M. R. Wright (Warminster: Ariss and Phillips Ltd., 1991), 3.16.53, 56.

Early Sources: Stoic and Christian  5 Some of the things not good or evil in themselves were to be preferred and some avoided. “If there were no differentiation at all the whole of life would be confused . . . no role or task would be found for wisdom and no proper ground of choice.”6 Cicero included such things as health, sound senses, freedom from pain, wealth, and good repute as things to be preferred and their opposites, pain, disease, loss of sensation, poverty, and ill-repute as things to be avoided. In Stoic thought humans were free in the sense that they could shape their own attitudes to the various eventualities of life, but this was a very limited kind of freedom. Cicero, however, went on to consider indifferent things, not just as unavoidable eventualities, but as an area of free choice where humans could decide among different courses of action. In a discussion of officia, “befitting actions,” he explained that, within the realm of intermediate acts, some were more appropriate than others; humans could judge among them and the criterion for judging was their intrinsic reasonableness. “A befitting action is such that an acceptable reason can be given for it.”7 Cicero returned to the necessity of judging among a variety of actions in the De officiis, a work closely modeled on Panaetius. In this work Cicero emphasized the distinction between the honestum, what was morally righteous, and the utile, what was advantageous in the everyday conduct of life. Cicero’s utile resembled the Stoic adiaphora in some ways but his “useful” choices were not altogether morally neutral. In the De officiis they were presented as intermediate or lesser goods. Following Panaetius, Cicero wrote that only what is honestum is to be chosen for itself; one should always choose the good rather than the useful if they conflict.8 But, Cicero continued, Panaetius had left out an important point here. In considering a course of action we must not merely ask whether some behavior is honorable or shameful but also what course of action should be pursued when there is more than one honorable course or more than one ad6. Ibid., 3.25.50, 56. 7. Ibid., 3.17.58, 60. Although the choices were among morally indifferent or “neutral” things they were not trivial choices. For Cicero they included even the choice to live or die (Ibid., 3.18.60, 63). 8. De officiis, edited by M. Winterbottom (Oxford: Clarendon Press, 1994), 3.7.33, 121.

6  Foundations vantageous one.9 In such a situation the appropriate course of action would vary with individuals, depending on individual circumstances and individual talents and personalities.10 Some texts of Roman jurists on natural law and human freedom also reflected Stoic thought as moderated by Cicero. One passage, attributed to the Stoic philosopher Chrysippus, described natural law as “Sovereign over divine and human affairs . . . a standard of justice and injustice.” Another influential text emphasized that human freedom was inherent in the law of nature. “By natural law all men were born free from the beginning.”11 A text of the Institutes explained that servitude was introduced by the law of nations when it established the practice of enslaving prisoners of war. In the same passage freedom was defined as “a natural power of doing what one pleases unless prevented by force or law.”12 These texts captured two essential recurring meanings of human liberty as freedom from servitude or as an innate power to act on one’s own choices. Another influential text declared that “The force of law is to command, to prohibit, to permit, to punish” (emphasis added).13 The work of Cicero was well known and widely studied in the twelfth century and it provided one of the main channels through which Stoic thought was transmitted to the Middle Ages. But in the juridical culture of the twelfth century, influenced by major revivals of Roman and canon law studies, the Stoic doctrine often took on a different form. Often the question asked was not whether some way of behaving was virtuous, vicious, or indifferent but whether it was commanded, prohibited, or permitted by law; and the argumentation could concern natural law, divine law, or positive human law.

Church Fathers A major reason for this change was the pervasive influence of early Christian teachings on the work of medieval canonists and theo9. Ibid., 1.3.10, 5. 10. Ibid., 1.3.120, 49, 1.34.125, 51. 11. Corpus iuris civilis, edited by T. Mommsen and P. Krueger, 3 vols. (Berlin: Weidmann, 1868), vol.1, Dig. 1.3.2, 1.1.4. 12. Corpus iuris civilis, vol.1, Inst. 1.3.3, 1.3.1. 13. Dig. 1.3.7, “Legum virtus haec est imperare vetare permittere punire.”

Early Sources: Stoic and Christian  7 logians. Some elements of Stoic ethics were readily assimilated into the thought of the early church fathers and their medieval successors—the Stoic idea of natural law, for instance, could be associated with the law written on the hearts of man that St. Paul wrote of. But not all Stoic teachings were acceptable to the early Christians. The Christian God was not just an immanent intelligence pervading an eternal cosmos, but a personal, willful God who had made the world out of nothing. Christians could agree with Stoics that the divine law governing the universe was in part accessible to human reason as natural law, but the Christian God had also revealed his law in direct commands that were given to his people and set down in a body of sacred writings, the Old and New Testaments. And here problems arose that were remote from Stoic concerns. Some commands of the Old Law apparently conflicted with those of the Gospel; Moses said “An eye for an eye,” but Jesus said “Turn the other cheek.” Some things that were permitted in the Old Law were forbidden in the New (divorce, polygamy), and many things forbidden in the ceremonial law of the Old Testament were permitted in the new teaching of Jesus so that St. Paul could write, “All things are permitted to me.” And, again, some provisions of both the Old Testament and the New Testament that were commonly regarded as teachings of natural law seemed to conflict with the legal order and common practice of the medieval world. Moses taught that it was permitted to enter another’s vineyard and eat of the grapes there and the New Testament taught that the first Christians had held all things in common; but medieval canon and civil law recognized the claims of individual property owners. Consideration of such problems often led to reflections on permissive natural law in later writings. Apart from these considerations there was always in the background of Christian thought the ancient problem that Augustine had wrestled with: an omnipotent good God had permitted evident evils to exist that he could have prevented. Arguing against the Manichees who held that matter was intrinsically evil, Augustine insisted that everything God had made was good. He accepted the Neoplatonic idea that evil was not a substantial reality but a privation of good, a corruption of the inherent goodness of all created being. But

8  Foundations the problem remained that God had permitted this corruption of the good when he could have prevented it. Augustine responded to the problem with a variety of arguments. For instance, one might say that the evil in the universe cast into bolder relief all that was good. Or that God could permit some evil in order to bring about a greater good. But Augustine’s principal argument turned on the idea of human free will. This freedom to choose, he held, was intrinsically good and so a fitting part of God’s creation; but freedom to choose meant that humans must be inherently capable of sinning. Augustine insisted that divine foreknowledge did not necessitate erring human behavior even though God’s providence did permit it.14 From the beginning the idea of divine permission was associated with the idea of human free choice. Augustine did not present this doctrine only as a response to an abstract though profound problem of theodicy. He also applied the idea of a permissive divine law in a more concrete fashion to explain certain difficulties posed by texts of the Old Testament, especially those relating to marriage and divorce. Commenting on the bill of divorce authorized in the law of the Old Testament (Deuteronomy 24:1), Augustine quoted Matthew 19:8 where Jesus said that Moses had permitted divorce to the Jews “because of the hardness of your hearts.” Then Augustine added, “The Lord showed what the Law would command to the good and would permit to the hardhearted.”15 Augustine’s comment on the text at 1 Corinthians 7:12 regarding the divorce of an unbelieving spouse led on to further distinctions. Paul wrote here, “If any brother has an unbelieving wife and she consents to live with him, let him not put her away.” Augustine noted that Paul’s words were spoken by way of advice, not as a divine command and that therefore they did not actually forbid such a separation but tacitly allowed it. “He is permitted to put her away because there is no commandment of the Lord against putting her 14. De libero arbitrio in Patrologiae cursus completus. Series Latina (henceforth PL), edited by J. P. Migne, 221 vols. (Paris, 1844–64), vol. 32, 2.18.49, col. 1267, 3.3.8, col. 1275. 15. Contra Faustum, PL 42, 19.29, col.367.

Early Sources: Stoic and Christian  9 away.”16 Augustine summed up his argument with a three-fold distinction: “What is commanded (iubetur) is one thing; what is advised (monetur) is something else, and what is indulged (ignoscitur) is something else again.”17 In the same passage Augustine also noted that Paul commended virginity but did not forbid marriage. For Augustine marriage was conceded as a “remedy” for the concupiscence inherent in humans after the sin of Adam. Augustine wrote that Paul had “conceded” sexual intercourse in marriage even without the intention of procreating, but he further explained that such intercourse, engaged in merely from desire and not for the sake of offspring, was not precisely permitted (admittitur) but was indulged or excused (ignoscitur). It was a sin but only a venial one.18 The frequent recurrence of these Augustinian arguments in medieval sources—both canonistic and theological—helped to ensure that later discussions of permissive natural law would have to consider permission of minor evils as well as of things that were simply indifferent.

Twelfth-Century Theologians We can turn now to some works of the early twelfth century— specifically those of Hugh of St. Victor and Ivo of Chartres—that reflected the influence of the ancient sources we have considered and that in turn influenced the canonistic discourse of the second half of the century. In his De sacramentis Hugh of St. Victor included an interesting synthesis of ideas that had been presented centuries earlier in the work of Augustine and Cicero and in Roman law. Hugh first explained how God expressed his will for humans both in his permission of evil and through the laws that he ordained in his precepts and prohibitions. Then, in two successive paragraphs, Hugh present16. De sermone Domini in monte, PL 34, 1, 16.44, col. 1252, “licet ergo et dimittere quia non est praeceptum Domini ne dimittat.” 17. “Aliud enim est quod jubetur, aliud quod monetur, aliud quod ignoscitur.” 18. De bono conjugali, PL 40, col.378, “Neque enim illud propter nuptias admittitur sed propter nuptias ignoscitur.”

10  Foundations ed a three-fold division of natural law into commands, prohibitions, and permissions, and a three-fold division of human acts into virtuous ones, vicious ones, and those that were intermediate or neutral. Addressing the first theme, the existence of evil, Hugh wrote that the one eternal immutable will of God was expressed in two signs, in God’s making and in his permitting. By his will God made all things good and by his will he also permitted evil; and it was good that he so permitted “even if what he permitted was not good.”19 By contrast with the evil that God permitted, Hugh argued, the good would be seen to be more fine and commendable.20 Hugh then explained that two further signs of God’s will were his precepts and prohibitions. These were different from the other signs in two ways. They applied only to rational creatures, and they were also different in that God’s making and permitting defined what actually existed whereas the precepts and prohibitions were often not carried into effect because of the evil will of men. The precepts and prohibitions, Hugh concluded were “demonstrations” of what God approved of and loved, but not significations of what was actually to be or not be.21 When Hugh turned to human affairs he first discussed free will as inherent in the mind of man and then distinguished two human goods, the good of the body and the good of the spirit. Humans were guided to these goods, Hugh wrote, in two ways, by the precept of nature and the precept of discipline; the former was infused in man by nature, the latter imposed from without by words. And at this point Hugh introduced his theme of a three-fold natural law. “In the precept of nature there are these three things, command, prohibition, and concession.” Command indicated what was to be done and prohibition what was to be avoided while concession referred to intermediate things (media) where man was left to his own free will so 19. De sacramentis Christianae fidei, PL 176, 1.4.4–5, cols. 235–36, “Et voluntarie permisit etiam si bonum non fuit quod permisit. Bona enim fecit et bene fecit, et mala permisit et non fecit.” For two modern studies of Hugh’s thought see P. Rorem, Hugh of Saint Victor (Oxford: Oxford University Press, 2009) and B. T. Coolman, The Theology of Hugh of St. Victor: An Interpretation (Cambridge: Cambridge University Press, 2010). 20. Ibid., 1.4.6, col. 236. 21. Ibid., 1.4.10, col.238.

Early Sources: Stoic and Christian  11 that, whatever way he chose, he would not be harmed.22 Hugh explained further that for God to command was to demonstrate what was necessary, to prohibit was to demonstrate what was harmful, and to concede was to indicate an area open to choice Hugh next restated the argument from the point of view of the human actors in terms of vices and virtues. Just as in the bodily life of man some things were necessary, some harmful, and some intermediate, so too in the higher spiritual life there were things harmful, such as all vices, things healthful and necessary, such as knowledge of God and of oneself and all virtues; and, again, there were some intermediate things that could be present or absent without harm and so were matters of choice. Summing up, Hugh wrote that precept referred to what was necessary and healthful, prohibition to what was harmful, and concession to the intermediate things.23 Hugh returned to the theme in a different way in another discussion of natural law. Here he wrote that there were some works so good that they could never be omitted, some so evil that they could never be licitly performed, and some that were intermediate so that they could be done or not done according to circumstances of time and place. Natural law commanded only the first kind, prohibited only the second kind, and left the third kind open to choice. Hugh defined the basic prohibitions and precepts of the natural law “written on the hearts of man” as the scriptural Golden Rule in both its negative and positive forms. “He wrote one precept on men’s hearts, ‘Never do to another what you would hate to have done to yourself’ . . . and, similarly, ‘Whatever you would that men do to you, do you also to them.’”24 The author went on to explain that these basic precepts of the natural law were exemplified more fully in the last seven of the Ten Commandments. Then, returning to his three-fold classification of law, he wrote that many positive and negative commands were added to the original natural law in the written law of the Old Testament, but also that many intermediate things were also 22. Ibid., 1.6.7, col.268. 23. Ibid., 1.6.8, col. 269, “Ad necessaria ergo pertinet praeceptio, ad noxia prohibitio, ad media concessio.” 24. Ibid., 1.11.9, col. 347.

12  Foundations presented in the written law as concessions rather than as precepts or prohibitions. These were things that would perhaps seem evil if they had not been explicitly permitted.25 In the examples Hugh gave, the relevant conduct was permitted to avoid a greater evil. For instance, as regards the divorce permitted in Deuteronomy, it was better that a wife who had become hateful to her husband should be divorced rather than killed by an angry spouse. So too, it was permitted to retaliate in kind against an attacker (“an eye for an eye”) lest the injured party should inflict a still greater injury on his adversary.26 Evidently the idea of permissive law was a central recurring element in Hugh’s treatments of both natural law and divine positive law. The same idea was presented in a rather different form in another very influential work of the early twelfth century, the Prologus of Hugh’s older contemporary, Ivo of Chartres.27 But before turning to his work we should note that both authors were inevitably influenced, not only by ancient sources, but also by the circumstances of their own age, and especially by the reform movements of the time and by the tensions between the spiritual and temporal powers that characterized the twelfth century. Hugh wrote of two ways of life, one earthly and one heavenly, one corporeal and one spiritual, and of two peoples corresponding to the two ways of life, clergy and laity, each with its own ruling power, king or pope. He concluded with a very influential but highly debatable assertion of the supremacy of the spiritual power over the temporal.28 The texts of Hugh that we have mentioned as relevant to our own theme were only incidental 25. Ibid., 1.12.23, col. 361, “Erant autem quaedam de his mediis, quae lex scripta magis per concessionem proposuit quam per praeceptionem vel prohibitionem, quae fortassis per se mala fuissent, si concessa non fuissent.” 26. Ibid. 27. Prologus in Yves de Chartres: Le Prologue, edited and translated by J. Werckmeister (Paris: Editions du Cerf, 1997). On the authenticity of Ivo’s Decretum and the Prologus discussed here see C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge: Cambridge University Press, 2010). I think that Rolker overemphasizes the discontinuity between the work of Ivo and that of Gratian and the early Decretists. 28. De sacramentis, 2.24, PL 176, col. 418. “The spiritual power has to institute the earthly power that it may be and judge it if it has not been good.”

Early Sources: Stoic and Christian  13 to his broader purpose, to reform and perfect the whole church and the Christian souls within it. Ivo of Chartres is remembered among church historians for his proposal of a compromise solution to the Investiture Contest, the dispute over the appointment and investiture of bishops that led to bitter conflicts between the papacy and the kings of Germany, France, and England during Ivo’s lifetime. However, the area of Ivo’s work that concerns our theme of permissive natural law was addressed to another related contemporary problem that Ivo had to face. Many new collections of canon law were made in the years around 1100, inspired in part by the disputes of the age, and they focused attention on an old problem that now took on a new urgency, that the authoritative canons of the church sometimes seemed to conflict with one another. Ivo addressed the problem at the beginning of the Prologus. A reader should not be disconcerted, Ivo wrote, if he found disagreements among the authorities, but rather should consider the purpose of the various decrees— what was asserted “according to rigor, what according to moderation, what according to judgment, and what according to mercy.”29 Such reflections led Ivo, like Hugh of St. Victor, to define areas of law outside the realm of commands and prohibitions, rules that were permissive rather than obligatory. But in Ivo’s formulation the matters concerned were not merely indifferent; they had gradations among them as in some forms of Stoic thought and in Cicero, though in Ivo’s work they were presented in a different, Christianized form. Ivo introduced his discussion of the varieties of law by quoting the comfortable old saying, “Have charity and do what you will,” a text that he attributed to Augustine.30 Then Ivo explained that, just as a medical doctor did not contradict himself when he prescribed different remedies for different conditions, so too the doctors of the church were not inconsistent when they prohibited illicit things, commanded necessary things, exhorted to the highest things, and condoned lesser offenses. This led to a four-fold classification of law. In Ivo’s schema there were precepts and prohibitions of course, but also “ad29. Prologus, 64. 30. Ibid., “Unde dicit beatus Augustinus . . . habe caritatem et fac quod vis.” See Augustine, In epistolam Iohannis, 7.8, PL 35, col. 2033.

14  Foundations monitions” and “indulgences” that did not have obligatory force.31 The admonitions were counsels of perfection such as Jesus’ counsel to the rich young man, “Sell all you have and give it to the poor.” Such counsels did not compel or threaten a punishment but they promised a reward to whoever accepted them. An indulgence, on the other hand, permitted behavior that was less than perfect, as when Paul permitted marriage to avoid fornication. An indulgence did not promise a reward but provided a remedy; and, like an admonition, it did not impose an obligation. “It is voluntary, not necessary,” Ivo wrote, “Otherwise anyone who did not take a wife would be a transgressor.”32 In discussing both admonition and indulgence, Ivo emphasized that, although neither had obligatory force, they left anyone free to commit himself voluntarily to a way of life stricter than what was merely permitted. A man was not obliged to give all his goods to the poor but, if he took a vow of poverty, he was bound to observe it. A man was not obliged to marry but if he did marry he was obliged to remain faithful to his wife. This idea of self-obligation, a source of the future law of contract, remained a permanent feature of Western law. When Ivo turned to precepts and prohibitions his essential distinction was between those that were immutable and those that could change according to changing needs and circumstances. The immutable precepts and prohibitions were those that dealt with matters essential to salvation; the mutable ones concerned changing rules of church discipline.33 Ivo then introduced another kind of legal permission, a dispensation or relaxation of the law in particular cases.34 He continued with a long discussion of dispensations in matters of church discipline, especially in cases involving the appointment, translation, and deposition of bishops, all very live issues in his own day. 31. Prologus, 70, “admonitio penam non intentat . . . sed premium sibi acquiescentibus pollicetur.” 32. Ibid., 72. “Voluntarius enim est non necessarius. Alioque transgressor esset quicunque uxorem non duceret.” Ivo used the word indulgentia to mean a permission, not an indulgence in the modern Roman Catholic sense of the term. Later authors who adopted Ivo’s classification sometimes substituted permissio and consilium for Ivo’s indulgentia and admonitio. 33. Ibid., 74. 34. Ibid., 84.

2

Canonistic Jurisprudence

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’s Decretum. 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 and in the following century many dozens of commentaries on it were written by jurists teaching in the new schools of canon law that grew up, first at Bologna and then in centers in France and England. This is the body of material that we have next to consider

Early Decretist Prefaces Hugh of St. Victor and Ivo of Chartres had taken up some ancient teachings on permissive law and indifferent acts, and applied them to the twelfth-century world in ways that made them seem relevant and useful to the first generation of Decretists. Their influence is evident in some of the numerous summae and glosses on Gratian’s De-

 

15

16  Foundations cretum that were produced from the 1140s onward. Often the Decretists were content to discuss natural law as commands, prohibitions, and permissions in the manner of Hugh of St. Victor, but some of the earlier ones, whom I want first to consider, developed further in their own Prefaces the teaching of Ivo’s Prologus concerning gradations within the sphere of permitted acts.1 One of the first such works, the Stroma Rolandi (ca. 1150), took up Ivo’s four-fold division of law and first set it within a long series of allegorical texts designed to show how divine truth could be expressed in a three-fold or four-fold fashion. For instance, the three divisions of the Old Testament, the Law, the Prophets, and the Psalms, could be expounded in four ways, historically, allegorically, morally, and anagogically. Or, again, faith in the three-fold Trinity was expounded in the four Gospels.2 Then, turning at last to his main theme, Rolandus described three kinds of people corresponding to four kinds of divine law. Among humans, some were perfect, some mediocre, some evil; and the law consisted of precepts, prohibitions, permissions and counsels. Counsel was for the perfect, permission for the weak, and the precepts and prohibitions for everyone.3 The precepts and prohibitions referred to things that must be done or avoided, permissions to things that were indulged, and counsels to things that were not obligatory but most excellent. Rolandus noted that people were sometimes confused by these different aspects of the law and thought that they implied contradictions since things that were advised against were sometimes permitted and sometimes forbidden, and other things were counseled but in no way commanded. Master Gratian had undertaken his work, Rolandus concluded, to resolve such doubts and demonstrate the harmony of the laws. Stephen of Tournai, a principal founder of the French school of 1. For an introduction to the canonists of this period see W. Hartmann and K. Pennington, eds., History of Medieval Canon Law in the Classical Period, 1140–1234, (Washington, D.C.: The Catholic University of America Press, 2008), with detailed bibliographies for each author. Translations of several prefaces to Gratian’s Decretum, including those discussed here, are included in Prefaces to Canon Law Books in Latin Christianity, translated by R. Somerville and B. C. Brasington (New Haven: Yale University Press, 1998). 2. Stroma Rolandi in Somerville and Brasington, Prefaces, 185–89 at 188. 3. Ibid., 189.

Canonistic Jurisprudence  17 canonists, echoed Hugh of St. Victor in a passage of his Summa (ca. 1166) where he wrote of “two peoples, two ways of life, two governments and two orders of jurisdiction.”4 Then he took up the argument of Ivo and Rolandus but now with four types of people to correspond to the four types of law. In this classification, some people were perfect, some were to be perfected, some were weak, and some were reprobate. As regards the four kinds of law, Stephen wrote that to sell all and give it to the poor was a counsel, to love God a precept, to marry a permission, and to kill or commit adultery was prohibited. Stephen emphasized the voluntary nature of counsels and permissions. “If you wish you can reject a counsel or not make use of a permission, but you will not resist a precept or prohibition without punishment.”5 Like Ivo, Stephen added that the area of free choice could be restricted by voluntary acts. A vow of continence pertained to counsel but after taking such a vow one was obliged to keep it; to marry was a permission but after marrying one could not divorce a spouse. Still following Ivo, Stephen went on to distinguish in the same fashion between mutable and immutable precepts and prohibitions, with the added comment that the permissions of the law could also change as, for instance, in the degrees of consanguinity permitted in marriage.6 A work of the 1170s, the Summa Antiquitate et tempore was unusual in that, in his Preface, the author defined the content of law in the language of Roman jurisprudence as pertaining to persons, things, and actions and then showed at some length how these categories applied also to church law. But when he came to consider specifically the content of the Decretum the author reverted to the language of Ivo and wrote that Gratian had discussed precepts, prohibitions, admonitions, and indulgences or permissions.7 The argument contin4. Prologus, in Studien zur Summa Stephans von Tournai, edited by H. Kalb (Innsbruck: Universitäts Verlag Wagner, 1983), 114. 5. Ibid., 117, “Si enim volueris nec consilio acquiesces, nec permissionem suscipies; precepto vero et prohibitioni non impune resistes.” 6. Ibid., 118, “Set et quaedam permissiones mobiles fuerunt.” 7. Preface to Summa Antiquitate et tempore, edited by J. F. von Schulte in Die Geschichte der Quellen und Literatur des Canonischen Rechts, 3 vols. (Stuttgart, 1875: repr. Graz: Akademische Druck, 1956), vol.1. 247–48.

18  Foundations ued in close dependence on Ivo and Stephen, with again an emphasis on the voluntary nature of counsel. After quoting the advice of Jesus to the rich young man (“Sell all you have.”) the author added, “See! It is left to his own free will.”8 The texts we have considered so far show that, from the beginning, the canonists’ understanding of the intrinsic nature of law included the idea that law could be permissive and that it could define an area of voluntary behavior where individuals were free to act as they chose, though some choices might be more commendable than others. The Prefaces dealt with law in general or church law or positive divine law, but as the canonists worked their way through the texts of the Decretum they found it necessary to engage more specifically with permissive natural law and the ways in which it could be deployed as they coped with a variety of problems posed by the material that Gratian presented.

Natural Law: Problems and Permissions Prefaces to the Decretum often stated that Master Gratian had undertaken to harmonize all the apparently discordant canons of the church. That was certainly Gratian’s intention as indicated by his own original title for the work (A Concord of Discordant Canons). But the dialectical structure of argument that Gratian adopted, in which authorities were marshaled for and against each legal proposition, ensured that the Decretum would leave plenty of problems for later canonists to resolve. And this is especially true of Gratian’s treatment of natural law in the opening chapters of his work. The first words of the Decretum were a definition of natural law as the Golden Rule of scripture that could have been taken directly from Hugh of St. Victor. “Natural law is what is contained in the Law and the gospel, by which each is commanded to do to others what he would have done to himself and not to do to others what he would not have done to himself.”9 8. Ibid., 248, “Ecce in voluntate ipsius relinquitur.” 9. Decretum Magister Gratiani in Corpus iuris canonici, vol. 1, edited by E. Friedberg (Leipzig: Tauchnitz, 1879), dictum ante Dist.1 c.1. For a translation of the first

Canonistic Jurisprudence  19 This was followed at once by a text from the seventh-century encyclopedist, Isidore of Seville, whose work was used extensively by Gratian: “Divine laws are grounded on nature, human laws on usages.”10 These opening definitions suggest an identification between natural law and the positive divine law of scripture, but a little further on Gratian made the necessary distinction: “Natural law is contained in the Law and the gospel but not everything in the Law and the gospel is natural law.”11 Gratian went on to explain that divine law understood as the moral teachings of the Old Testament expressed natural law and was immutable, but that the ceremonial or “mystical” precepts were no longer literally observed. Although twelfth-century canonists understood quite well the distinction between the moral and ceremonial precepts of scripture they nevertheless often used the terms natural law and divine law indifferently without overtly introducing this distinction. A text from the opening section of the first summa on the Decretum, that of Paucapalea, will illustrate the point. Referring to the right to cross another’s land, Paucapalea wrote, “as regards divine law it is permitted because by natural law all things are common.”12 In considering the history of permissive natural law we need therefore to remember a point made earlier, that discussions of permissive divine law based on scriptural texts often dealt with matters that were also considered to pertain to the law of nature. Gratian’s own discussion of natural law after his initial reference to the Golden Rule continued with a more extensive account of the content of the law, again taken from Isidore of Seville. Isidore was regarded as one of the early church fathers, so his work commanded great respect and his text was often taken as a starting point for later discussions of natural law. section of the Decretum with its Ordinary Gloss see A. Thompson and J. Gordley, eds., Gratian: The Treatise on Laws (Decretum DD. 1–20) With the Ordinary Gloss (Washington, D.C.: The Catholic University of America Press, 1993). 10. Dist.1 c.1 “Divinae (leges) natura, humanae moribus constant. 11. Dist.6 dictum post c.3. 12. Paucapalea, Summa über das Decretum Gratiani, edited by J. F. von Schulte (Giessen, 1890: repr. Graz: Scientia Verlag, 1965), 4. “quantum ad divinum licitum est, quia omnium naturali maxime iure communis est possessio.”

20  Foundations Natural law is common to all nations because it is held everywhere by natural instinct, not by virtue of any enactment; for instance, the union of men and women, the succession and upbringing of children, the common possession of all things, the same liberty of all, the acquisition of what is taken by land, sea, and air; also the return of a thing deposited or of money entrusted, the repelling of violence by force. For this and anything similar is never unjust but is held to be natural and equitable.13

But all this seems to have nothing to do with Gratian’s original definition. It says nothing about the Golden Rule and it derives natural law not from scripture but from natural instinct. Isidore had in fact presented an extraordinary mixture of texts, reflecting various scattered teachings of Roman law. Some of his words refer to natural biological facts (the mating of the sexes), some to precepts of natural law (the return of a deposit), some to permissions that we might think of as natural rights (to repel violence). Both common property and individual acquisition were said to pertain to natural law. Human liberty too was mentioned as in accordance with natural law; yet in the real world servitude evidently existed. Undeterred by such problems Gratian pressed on with his own account of natural law. This law, he wrote, was superior to all others in age and dignity. “It began with the origin of rational creatures and does not change with time but remains immutable.”14 Also natural law prescribed community of property. “By natural law all things are common. By the law of custom and statute this is mine and that is another’s.”15 And, finally, Gratian wrote, “Natural law prevails over custom and statute in dignity. Whatever has been received as custom or set down in writing is vain and void if it conflicts with natural law.”16 These texts set up a problem that the Decretists could not ignore. The author of the Summa Monacensis (ca.1175) raised an obvious objection. By natural law all things were common, he wrote. But human laws had decreed that private property should exist. “And the 13. Dist.1 c.7 14. Dist.5 dictum ante c.1. 15. Dist.8 dictum ante c.1. 16. Dist.8 dictum post c.1, “Quaecunque enim vel moribus recepta sunt, vel scriptis comprehensa si naturali iuri fuerint adversa, vana et irrita habenda sunt.”

Canonistic Jurisprudence  21 church holds this today.”17 It seemed therefore that positive law prevailed over natural law. Gratian did not address directly the problem his texts had raised but he did suggest a solution by including in these early definitions the idea of permissive law. In a passage that echoes a text of Justinian’s Digest, Gratian wrote, The function of secular laws and church laws is to command what is necessary, prohibit what is evil, and permit what is licit, such as seeking a prize, or even what is illicit, such as giving a bill of divorce lest something worse happen.18

The canonists who had to cope with the problems that the master had bequeathed to them often appealed to the idea of permissive law that Gratian mentioned here, but they extended his definition by emphasizing specifically the doctrine of permissive natural law and exploring the varieties of permission. They did not proceed in the manner of some later philosophers, such as Aquinas, who sought out one lapidary phrase to define the whole of natural law.19 Instead the Decretists, as practical jurists, noted pragmatically that the term ius naturale was used with many different meanings in different contexts and undertook to list all the meanings as a way of explaining any apparent conflicts. As one of them wrote, there was no incongruity if ius naturale in one meaning of the term contradicted ius naturale in another meaning. Similarly Huguccio, the greatest of the twelfth-century Decretists, who completed his Summa on the Decretum ca. 1190, wrote 17. Summa Monacensis in R. Weigand, Die Naturrechtslehre der Legisten und Dekretisen von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus (Munich: Max Hueber Verlag, 1967), 164. The Summa Monacensis and many other important commentaries on Gratian’s Decretum remain unpublished. But an ample selection of texts illustrating their teachings on natural law was presented in Weigand’s work. Here and in subsequent notes I have given references to extracts from unpublished texts included there. 18. Dist.3 dictum post c.3. “Officium vero secularium sive ecclesiasticarum legum est praecipere quod necesse est fieri, aut prohibere quod malum est fieri, vel permittere licita ut premium petere, vel etiam quaedam illicita, ut dare libellum repudii ne fiant graviora.” This was immediately followed by a text of Isidore that provided the authority for Gratian’s comment. “Omnis autem lex aut permittit aliquid. ut vir fortis petat premium . . . aut vetat . . . aut punit . . . divina autem praecipit.” 19. Summa theologiae, 1.2ae.91.2, “Natural law is the participation of eternal law in the rational creature.”

22  Foundations that, “not all the examples of ius naturale given below refer to the same meaning of natural law; therefore a prudent reader will carefully discern which example refers to which meaning.”20 And in addressing their problems the Decretists often included among these meanings the idea of a permissive natural law, introducing the idea in a variety of contexts and deploying it for various purposes.

Vocabularies of Permissive Law A modern researcher who ventures into the forest of Decretist texts will often encounter a common problem. Annoyingly, it will turn out that no canonist ever wrote a handy little treatise on the chosen subject. Yet there may be ample, perhaps indispensable, material to be found in individual glosses on texts scattered throughout the Decretum; and it is necessary to engage with this material in order to gain some understanding of how widely diffused the idea of permissive natural law was in twelfth-century jurisprudence. The relevant texts often dealt with problems that seem unrelated to one another, so the material is hard to assemble and hard to present in a coherent form. There is, however, one common thread running through it all. Always when the idea of permissive natural law came into play it was to resolve some tension or conflict in the texts that Gratian presented. Most often it was a tension between natural law and positive human law, but sometimes it could be a tension between conflicting duties or between different teachings of scripture that were mentioned in the Decretum. The way I have chosen to explore the tangle of texts is to consider in turn some of the specific terms that were used to express the idea of a permissive natural law—such words as demonstratio, permis20. Huguccio Pisanus, Summa Decretorum, vol.1, Distinctiones I–XX, edited by O. Prˇerovský (Vatican City: Biblioteca Apostolica Vaticana, 2006), 6. Huguccio’s advice might be compared with that of a modern historian of natural law. After noting that the word “nature” had many meanings, he wrote, “It is therefore necessary in analyzing these theories to determine in which sense natural law is being used in a particular case.” That is exactly what the twelfth-century canonists sought to do. See P. E. Sigmund, Natural Law in Political Theory (Cambridge, Mass.: Winthrop Publishers, 1971), ix.

Canonistic Jurisprudence  23 sio, fas, libertas, perplexitas, tolerantia, licitum—and the ideas that the canonists associated with these words. The terms were not always sharply distinguished from one another. Huguccio, for instance, used several of them without differentiation in one short passage. By natural law something is mine and something is yours, but this is by permission (permissione) not by precept . . . all things are called common by the natural law that is called licit (licitum) or moral (fas) that consists in demonstrations (demonstrationes).21

But on other occasions Huguccio used the words with different shades of meaning as he applied them in different contexts.

Demonstratio-Permissio The last words of Huguccio quoted above referring to “demonstrations” echo a seminal text included in one of the early commentaries on the Decretum, the Summa of the canonist Rufinus (ca.1158). Rufinus introduced the term demonstratio to designate a permissive or nonobligatory aspect of natural law and it continued to be employed in that sense throughout the twelfth century. The opening passages of Rufinus’s Summa reflect the influence of both Cicero and Hugh of St. Victor though with significant variations from the originals. In his Preface, Rufinus included a description of primitive humans living a scattered life and reduced almost to the level of brute beasts just as in the De inventione of Cicero. But in Cicero’s work the savage people were brought together by the skill of a great orator; in the account of Rufinus they retained just enough sparks of reason and justice to assemble voluntarily and establish some basic principles of lawful behavior. When Rufinus came to comment on the first words of the Decretum he simply ignored Gratian’s definition of natural law and provided one of his own. “Natural law is a certain force instilled in the human creature by nature.”22 Again one is reminded of the De inventione, but whereas Cicero wrote 21. Summa ad Dist.1 c.7, 35–36. 22. Rufinus von Bologna. Summa Decretorum, edited by H. Singer (Paderborn, 1902: repr. Scientia Verlag Aalen, 1953), ad dictum ante c.1, 1, “Est itaque naturale ius vis quaedam humane creature a natura insita.”

24  Foundations that natural law was something instilled in humans by a natural force, Rufinus wrote that ius naturale was itself a force inherent in humans. He continued with a more extended definition that now included the “demonstrations” of natural law. “Natural law consists of three things, commands, prohibitions, and demonstrations (demonstrationes). It commands what is beneficial, it prohibits what is harmful, and it demonstrates what is fitting, for instance, that all things be held in common and the same liberty of all.”23 Hugh of St. Victor had used the same language of precepts, prohibitions, and demonstrations in describing varieties of natural law, but Rufinus gave a different meaning to the words. In Hugh’s work the precepts and prohibitions were themselves called demonstrations of God’s will; for Rufinus the demonstrations referred to an area of conduct where natural law did not command or forbid. The major breakthrough in Rufinus’s work was that he used his new definition of natural law as a way of resolving some problems in the texts of the Decretum that we mentioned earlier—some generally accepted institutions of human positive law, notably individual property and servitude, seemed to conflict with the law of nature. Rufinus brought into play his idea of natural law as demonstratio to explain the anomalies. (Natural law) cannot be detracted from at all in its commands and prohibitions . . . but it can in the demonstrations, which nature does not command or forbid but shows to be good, and especially as regards the liberty of all and common possessions for now, by civil law, this is my slave, that is your field.24

Rufinus’s argument that the natural law relating to common property and human liberty was a permissive, nonobligatory kind of law 23. Ibid., “. . . Consistit autem ius naturale in tribus, scil. mandatibus, prohibitionibus, demonstrationibus. Mandat quod prosit . . . prohibit quod ledit . . . demonstrat quod convenit, ut ‘omnia in communia habeantur’, ut ‘omnium una sit libertas’, et huiusmodi.” Rufinus used the word demonstratio here in an unusual sense to designate an area of nonobligatory natural law. There seems to be no precise English equivalent for Rufinus’s usage so I have retained the transliteration “demonstration.” 24. Ibid., 7, “Detractum autem ei est non utique in mandatis vel prohibitionibus . . . sed in demonstrationibus que scil. natura non vetat non precipit sed bona esse ostendit, ut maxime in omnium una libertate et commnuni possessione; nunc enim iure civili hic est servus meus, ille est ager tuus.

Canonistic Jurisprudence  25 provided a starting point for a whole tradition of thought. It was very frequently repeated, paraphrased, and developed in glosses of the twelfth century and for long afterwards. Here I can give only a few examples. Occasionally the word permissio was substituted for Rufinus’s demonstratio as in this gloss. “Natural law consists of precepts, prohibitions, and permissions. Statute law cannot derogate from it as regards precepts and prohibitions, but can as regards permissions.”25 The Summa Duacensis (ca.1200) also used the terms demonstratio and permissio indifferently in discussing the natural and civil law of marriage.26 The author of the Summa Elegantius(1169) wrote that the term ius naturale was equivocal. It could refer to the law handed down in scripture by “the supreme nature, that is God” or to what nature had implanted in all animals, or to something instilled by nature only in humans. And this last kind of natural law, intrinsic to humans, was again divided into commands, prohibitions, and demonstrations. The law commanded what was beneficial, it prohibited what was evil, and it demonstrated what was fitting, as for instance, that humans should be free. Natural law could be added to, as the ceremonies of marriage had added to the natural law of procreation; but it could be detracted from only in the demonstrations, as the natural law of liberty had been changed by the introduction of servitude in the ius gentium, the law of nations.27 The author of the Summa Tractaturus magister (1182–85) similarly wrote that natural law could be understood in one sense as a collection of precepts, prohibitions, and demonstrations instilled in the human mind by God. The precepts and prohibitions referred to things necessary for eternal life, the demonstrations to conduct congruent with good morals but not essential for salvation.28 The gloss Ecce vicit 25. Summa Bona a deo patre, “Ius naturale preceptis, prohibitionibus, permissionibus consistit” (Weigand, 392). 26. Summa Duacensis ad Dist.1 c.7, “Eligere autem compartem matrimonii et matrimonium contrahere demonstratio est iuris inspirati . . . quandoque fuit temporale preceptum iuris legalis. . . . Nunc est permisssio tantum in quolibet iure . . . demonstrationes autem in omne iure venerabiles sunt” (Weigand, 300). 27. G. Fransen and S. Kuttner, eds., Summa ‘Elegantius in iure divino’ seu Coloniensis (New York: Fordham University Press, 1969), 11, “Dectractum in demonstrationibus dumtaxat veluti in libertate, que per ius gentium imminuta est servitudine inducta.” 28. Weigand, 187.

26  Foundations leo (1202–10) identified the demonstrations of natural law with counsels and then with permissions. Regarding the demonstration or counsel, which is the same thing, that everything is common . . . this is a counsel and we are not bound to obey a demonstration or counsel. . . . So one does not sin in having property because this also is permitted by natural law.29

Huguccio too emphasized the neutrality of natural law concerning property; it permitted either common ownership or private possessions, so that one could either have property or lack property without sin.30 Huguccio defined natural law in its primary sense as “reason, a natural force of the soul by which man discerns between good and evil.” From this primary sense of the term rules of natural law were elicited, including those teachings of scripture accessible to human reason, and natural law understood in this sense consisted of the usual precepts, prohibitions, and demonstrations. The demonstrations of natural law, according to Huguccio referred to “what is fitting and expedient,” such things as common property and liberty.31 This was all commonly accepted teaching, but in a rather unusual fashion Huguccio varied the common argument asserting that common property was introduced by natural law and private property by human law; he maintained rather that individual ownership was also instituted by natural law since it was grounded in a permission of the law. It is said that by civil law something is mine and something yours, but by natural law too something is mine and something yours; this is by permission not by precept for natural law never commanded that everything be common or everything private but it permitted that either everything be common or that something be private, and so by natural law something is common and something is private.32 29. Weigand, 323. “Demonstrationes sive consilia, quod idem est, quod omni sunt communia; hoc consilium est . . . et demonstrationi sive consilio possumus non obedire . . . unde non peccat quis habendo proprium quia etiam de iure naturali est licitum.” 30. Huguccio, Summa Decretorum, Preface, 7, “sine peccato quis potest habere propria vel carere propriis.” 31. Huguccio, Preface, 9. 32. Huguccio, ad Dist.1 c.7, 35, “De iure naturali aliquid est meum et aliquid tuum, set de permissione, non de precepto quia ius divinum nunquam precipit

Canonistic Jurisprudence  27 In another passage Huguccio wrote, If you want to insist on the common explanation you may say that . . . all things are common according to the natural law that is called licit or fas, which consists in demonstrations, not in precepts or prohibitions.33

Although Huguccio gave this as the common explanation he himself preferred a different opinion which eventually came to be very widely accepted. It found a place, for instance in the teaching of Aquinas and of other mainstream theologians. According to this argument, “Common possession of all things” did not exclude individual ownership; it meant rather that private possessions had to be shared with the poor in time of need.34 Finally, the canonist Alanus, writing in the first years of the thirteenth century, presented a synthesis that included some significant new material. He distinguished three senses of ius naturale—the natural law of scripture, natural equity, and the natural instinct of sensuality—and he wrote conventionally that in the first sense natural law included precepts, prohibitions, and demonstrations. However, Alanus gave a new more complex description of the demonstrations; he wrote that they consisted of counsels, permissions, exhortations, and dissuasions. And he maintained that in the last two senses of his original definition—natural law understood as equity or sensuality—the law consisted entirely of demonstrations. As regards natural equity in particular, natural law did not command or forbid, Alanus wrote, but merely showed what was right and what was wrong; if an act were not otherwise commanded, it would not be a sin to act against this kind of natural law.35 Alanus was hinting at a problem omnia esse communia vel aliqua esse propria, set permittit omnia esse communia et aliqua esse propria” 33. Huguccio, ad Dist.1 c.7, 36. 34. Huguccio, Preface, 12, “iure naturali, id est iudicio rationis approbante, omnia sunt communia, id est tempore necessitatis indigentibus communicanda.” 35. Alanus, ad dictum ante c.1, “Demonstrationes sunt consilia, permissiones, exhortationes, dissuasiones legis et evangelii. In secunda acceptione (i.e., naturalis equitas) ius naturale solas continet demonstrationes; licet enim videatur prohibere iniquum et precipere quod est equum, hoc tamen non facit set solummodo demonstrat. Unde si nil aliud prohiberet contra naturalem equitatem facere non esset peccatum. . . . In tertia (acceptione) similiter tantum demonstrationes continet” (Weigand, 227).

28  Foundations that would become a major issue in later times—whether a rational perception of the good in itself created moral obligation or whether the command of a legislator, divine or human, was also required.36 In the foregoing material it was persistently asserted that natural law consisted in part of demonstrations or permissions. Alanus went further and suggested that, outside the inspired teachings of scripture, the nonobligatory demonstrations constituted the whole of natural law. Alanus also discussed the old problem of common property and private ownership in a new way. To have something in common was in accord with natural law and therefore just, he wrote, but to have something as one’s own was in accord with positive law and so also just; it seemed therefore that two opposites could both be just. Alanus replied that common property and private property did not pertain to the two laws in the same way but then, instead of explaining in the usual fashion that common property was only a permission of natural law, he reversed the argument and pointed out that private property was only a permission of positive law.37 Hence, the doctrine that private property was just according to positive law did not imply that common property was unjust in that law. (In fact of course a great deal of property was commonly owned in the Middle Ages in accordance with both civil and canon law.) Alanus added an unusual comment. “Positive law always takes precedence over natural law unless the natural law is included in positive law.”38 Alanus also introduced here an unusual distinction between “simple” and “relative” natural law that recurred in later writings. Simple natural law demonstrated something to be just regardless of any positive law; relative natural law indicated that something was just only after a relevant positive law had been enacted. Thus, it would not 36. Alanus’s great predecessor, Huguccio, expressed a contrary opinion, more rationalist, less voluntarist. He wrote that reason leads and impels and binds us. See Summa, Preface, 9. “ad ea que iure divino continentur ratio . . . ducit et impellit . . . et ad ea ex ratione quis tenetur.” 37. Referring to common and private property Alanus wrote, “Illud est positio iuris naturalis, sed istud est tantum permissio iuris positivi” (Weigand, 318). 38. Ibid., “Semper preiudicat ius positivum iuri naturali nisi et ipsum ius naturale in ius positivum sit redactum” (Weigand, 318).

Canonistic Jurisprudence  29 be just according to natural law for anyone to acquire property until private ownership had been instituted by positive law.39

Fas Another group of texts dealing with a conflict or apparent conflict between natural law and positive law, again involving the idea of permissive natural law, clustered around the word fas. This term was introduced into the first Distinctio of Gratian’s Decretum in a quotation from Isidore of Seville. “All laws are either divine or human . . . fas is divine law, ius is human law. To pass through another’s field is fas, it is not ius.”40 The last words, fas est, non est ius are not easy to interpret. Augustine Thompson in his translation of this section of the Decretum rendered them as “To pass through another’s field is moral, but it is not legal.”41 This conveys a likely sense of the passage but the words fas and ius both have various connotations that could suggest other readings. Among other things, ius could mean law and it was commonly understood by the canonists in that sense. But ius could also mean a right and Stephen of Tournai clearly used the word in this latter sense in commenting on the text of Isidore. After explaining that to enter another’s land was permitted according to divine law, he wrote, “But you do not have a ius unless the field owes a servitude such as a right of way.”42 Ius here has the sense of a legal right. The word fas was most commonly understood to mean divine law or the natural law of morality with the two terms often used interchangeably as in this definition of Sicardus (c.1180), “Natural law or divine law or fas; the words are different but the meaning is the 39. “Item sciendum est quod et est ius naturale simplex et respectivum” (Weigand, 228). 40. Dist.1 c.1, “Fas lex divina est, ius lex humana. Transire per agrum alienum fas est ius non est.” 41. Gratian, The Treatise on Laws, 4. 42. Summa Stephani (above, n.39) ad Dist.1 c.1, 8. For a full treatment of commentaries on this text of the Decretum see M. Kriechbaum, “Actio, fas, und ius in den Kommentierungen der Dekretistik zu D.1 c.1,” in Die Bedeutung der Wörter, Festschrift für Sten Gagnér zum 70. Geburtstag, edited by M. Stolleis, et al. (Munich: G. H. Beck’sche Verlagsbuchhandlung, 1991), 155–75.

30  Foundations same.”43 Often fas was understood in a more specific sense as meaning a permission of divine or natural law as in these lines of the Summa Et est sciendum (1181–85). Commenting on the words “Fas is divine law,” the author wrote, [A]ccording to a rough and unformed demonstration of divine law, that is natural law, all things are permitted and licit for common use, but this permission of the law is derogated from by civil law according to which this thing is mine and that is yours.44

The texts on demonstratio that we have so far considered usually had the purpose of showing that permissive natural law left the field of law open for change and innovation by human positive law. This theme often occurred also in discussions of fas but in a rather different way. The issue involved here was not merely to justify property ownership in principle but to assess specific cases of trespass on another’s land. This often involved a consideration of the attitude of the owner and the right of the intruder in determining what was permitted by natural law and by human law. It provides an early example of a conflict between natural law and positive law, in this case between a permission of natural law and a prohibition of positive law; the canonists’ varied treatment of it indicates some of the complexities that could arise in such cases. Paucapalea wrote that passage through another’s land was not permitted by human law if the owner objected or did not grant permission.45 Some authors thought that the passage was permitted if the owner did not actually prohibit it; others suggested that an express permission was needed. Stephen wrote, “If you cross the land without permission the owner can forbid you.”46 The author of the Glossa Palatina observed crisply, “The prohibition takes away the permission,” and another canonist explained, “It does not seem that it is fas to cross the land against the will of the owner.” Huguccio gave 43. Sicardus ad Dist.1, “ius naturale vel divinum vel fas: diversa sunt nomina, idem significatio” (Weigand, 184). 44. Weigand, 193. 45. Summa Paucapaleae ad Dist.1 c.1, 4, “quantum ad humanam legem non est licitum transire domino renitente vel non permittente.” 46. Summa Stephani, 8, “si transieris domino non permittente, poterit te prohibere.”

Canonistic Jurisprudence  31 a magisterial summing up. If the owner prohibited entry it was not permitted by either divine or human law, if the owner allowed entry it was permitted by both divine and human law, and if the owner neither permitted nor prohibited entry it was permitted by divine law but not by human law.47 The need to balance the right of the owner based on human positive law with the right of passage of others based on divine natural law sometimes gave rise to arguments more complex than a simple explanation that common property was only a demonstration of natural law. The Summa Elegantius introduced one such argument in a terse but complex passage where the author posed the question, “If by divine law all things are common, is it permitted to pass over another’s land by divine law when the owner prohibits this?” (Here of course the owner’s claim was based on human positive law.) The author of the Summa argued that usage favored human law so this law should prevail, but then raised an objection. When two laws were opposed to one another the one with more sacred authority should be observed and this was the divine law. He replied that, nevertheless, the right of the owner should be upheld. “The response to this is that a prohibition, not a permission or counsel, is altogether contrary to a precept.” This is a gnomic utterance; it seems counterintuitive; we would normally say that a permission is indeed opposed to a contrary precept. But the author was arguing in terms of two different systems of law. His gloss continued: “Therefore when divine law only permits or counsels this and human law hinders it there is no contradiction.”48 If an owner’s prohibition of entry on his land had contradicted some precept of natural law there would indeed be a conflict of laws. But, since natural law merely permitted and counseled that property be held in common without actually commanding this, the human law instituting private property did not violate any precept of the natural law. 47. These texts and other similar ones are printed in Kriechbaum, 160–61. 48. Summa Elegantius, 12, “Ad quod respondendum quod preceptioni prohibitio, non permissio vel consilium, tota facie adversatur, ideoque cum hoc permittat vel consulat dumtaxat ius divinum, inhibeat autem humanam, non est contrarietas.”

32  Foundations Huguccio also made use of this argument but he introduced another point. A right to enter another’s property could be asserted not only by invoking the usual argument that by natural law all things were common; it was also supported by a specific text of scripture. In commenting on the words, fas est non est ius, Huguccio wrote: “Fas, that is, not prohibited by any natural or divine law, but rather in the Mosaic law it is permitted that anyone can enter another’s vineyard and eat the grapes there.”49 Huguccio first explained the anomaly by appealing to his argument that the natural law concerning common possessions meant that goods were to be shared with others in case of need; hence it could be permitted to eat another’s grapes “in necessity.”50 There remained the problem that intrusion into another’s property was forbidden by human law. Again there seemed to be a conflict of laws. But Huguccio returned to the argument of the Summa Elegantius. He explained that the word fas referred not to a precept but to a permission that did not bind anyone and added, “the words ius non est refer to a prohibition, but a permission and a prohibition are not contrary to one another.”51 Huguccio went on to ask whether an owner sinned in denying access to his land and replied: “No, because a permission does not impose any necessity but only appeals to the free will. If you do not obey a counsel you do nothing evil but you achieve a lesser good.”52 The landowner did not sin in acting against a permission or counsel of natural law because such provisions of the law did not impose an obligation of obedience. 49. Summa ad Dist. 1 c.1, 21, “Fas, id est nullo naturali vel divina lege prohibita, immo in lege mosaica permittitur ut quis potest intrare in vineam alterius et uvas comedere sed non exportare.” 50. Ibid., “Respondeo: hoc enim licitum erat in necessitate scilicet si indigeret.” 51. Ibid., 23, “sed non contraria quia quod dicitur fas est loquitur de permissione quia si preceptum esset omnes astringeret; quod dicitur ius non est loquitur de prohibitione: permissio autem et prohibitio non sunt contraria.” 52. Ibid., “Non, quia permissio nullam imposuit necessitatem sed tantum liberam excitat voluntatem. Si enim consilio non acquievis nihil mali perpetrabis sed minus bonus adipisceris ut xiiii q.1 quisquis.” The last words are a quotation from Augustine. The final reference is to a text of the Decretum that cited the relevant passage of Augustine’s De sancta virginitate (PL 40, col. 403). “Praeceptum enim est hoc, cui non obedire peccatum est, non consilium quo si uti nolueris minus boni adipisceris, non mali aliquid perpetrabis.”

Canonistic Jurisprudence  33 The canonists’ texts provide a good example of a recurring problem in Western jurisprudence, a conflict between natural moral law and human positive law. They are also interesting here because they point to a duality in the idea of permissive natural law. In some contexts the idea could be developed into a doctrine of natural rights that were not subject to the civil power. (For instance, to take a medieval example, the right either to marry or to choose a life of celibacy; neither was commanded but both were permitted.) The texts we have just considered, however, emphasized another aspect of permissive natural law. Here the idea referred to conduct that was permitted by natural law but that could properly be prohibited by human law. In the modern formulation of Hohfeld the only natural right involved was a “privilege” or “liberty right,” a right that did not impose an obligation on others.

Libertas Paradoxically perhaps, much of the canonists’ writing on human liberty was concerned with explaining the existence of servitude. Medieval jurists commonly agreed that natural law proclaimed a doctrine of universal liberty, “the same liberty of all” according to the key text of Isidore of Seville.53 And yet, in the real medieval world many people lived in a condition of involuntary servitude, either in outright slavery or more commonly as serfs with varying degrees of servile obligations. Moreover the institution of slavery was approved of in both the Old and the New Testaments, and also in Roman law and in the teachings of the church fathers. Augustine especially had taught that servitude had come to exist as a penalty for sin. In these circumstances Christian authors typically regarded servitude as an unfortunate but permanent consequence of human depravity; it was seen simply as a fact of life that had to be explained, not as an abuse that ought to be abolished. St. Paul had written that slaves and freemen were all alike children of God, but he also told slaves that they 53. Decretum Gratiani, Dist.1 c.7. (A full citation to the Decretum is given at n.9.)

34  Foundations should obey their masters.54 These and other similar scriptural texts shaped the teaching of the church in the following centuries. Slavery was a legitimate institution but slaves shared a common humanity with free people; they should therefore be treated humanely and fairly, and manumission was seen as a charitable, meritorious act. In this area, too, the canonists often appealed to the idea of permissive natural law in their attempts to reconcile the fact of servitude with their theory of natural liberty. There is hardly a trace in their writings of the Aristotelian idea of natural slavery. They took for granted the Stoic doctrine, transmitted to them by Cicero and Roman law and some of the church fathers that all humans were by nature free. A key text of Justinian’s Institutes declared that, “By natural law all men were born free but afterward slavery came in by the law of nations.”55 Another text of the Institutes explained that slavery became a part of the law of nations through the practice of enslaving prisoners of war. Slavery is an institution of the law of nations contrary to nature. . . . The word slave (servus) is derived from the practice of generals to order the preservation and sale of captives instead of killing them.56

The doctrine of natural freedom was reaffirmed for the canonists by a text of Gregory the Great incorporated in the Decretum. Gregory wrote that, just as Christ had freed humankind from the slavery of sin, so too, [I]t is salutary if men, who from the beginning nature brought forth free and the law of nations subjected to the yoke of servitude, are restored by the gift of manumission to the freedom in which they were born.57

Some canonists took this text to mean that everyone was naturally free from the beginning of life at birth, so that an act of manumission did not grant anything new but only uncovered a freedom that was always inherent in the person. But others, including Huguccio, acknowledged that some were born as slaves. They took the words “From the beginning” to mean “From the beginning of the world,” 54. Galatians 3:26–28; Ephesians 6:5. 55. Inst. 1.5pr. 57. C.12 q.2 c.68.

56. Inst. 1.3.3.

Canonistic Jurisprudence  35 with the further explanation that this primordial freedom had been changed by the law of nations.58 The most common explanation of the introduction of servitude by human law contrary to a provision of natural law was one that we have already encountered. Liberty was only a demonstration of natural law. It was equitable and fitting and in accordance with natural law that humans should be free but the law of nature did not actually command this. Rufinus had already coupled together community of property and universal liberty as demonstrations of natural law when he first introduced the concept, and Huguccio summed up decades of similar commentary when he repeated the argument. “It seems just that all should be free. Nevertheless this was derogated from by a contrary enactment; for human law derogates from divine law in its demonstrations but not in its precepts and prohibitions.”59 However, the transition from universal liberty to servitude posed an additional problem for the canonists because the Decretum presented an account of the origin of slavery quite different from the one that the Decretists knew from Roman law. This time the relevant text came from St. Ambrose. “There would be no servitude today if there had not been drunkenness.”60 Ambrose was referring to the drunkenness of Noah and the curse of Noah on Chanaan, the son of Cham, the man who had exposed Noah’s nakedness. “Cursed be Chanaan. He shall be a slave of slaves to his brothers.”61 The canonists commonly saw the curse of Chanaan as a precept of divine and natural law that had originally introduced slavery as a penalty for sin. Huguccio undertook to explain how this could be reconciled with the Roman law teaching that slavery was introduced by the practice of enslaving prisoners of war. Servitude was introduced by natural law on account of drunkenness as a penalty for flagrant sin, but later on by the law nations regarding captivity. Or, better, it had its origin from natural law and approval from the law of nations.62 58. Weigand, 271–72. 59. Huguccio, Summa ad Dist.1 c.7, 37. 60. Dist.35 c.8. See Weigand, 261 on the reference to Ambrose. 61. Genesis 9:25. 62. Summa ad Dist.1 c.9, 50.

36  Foundations In treating the enslavement of captives as a legitimate provision of the law of nations, Huguccio, and following him Johannes Teutonicus, remembered to add that the captive must have been taking part in an unjust war. Otherwise the enslavement was not rightful and the captive could licitly seek to escape.63 So here again enslavement was treated as a penalty for sin, but a different sin here, the sin of participating in an unjust war. This explanation still did not resolve all the difficulties presented to the Decretists by Gratian’s texts. The question at issue was not just that an institution of human law seemed contrary to natural law; that problem was commonly disposed of by an appeal to the demonstrations and permissions of natural law. But the problem went deeper. If a demonstration of natural law recommended liberty and a precept of natural law commanded slavery (the curse on Chanaan), it seemed that there was an inherent contradiction within the natural law itself. In response to this argument, Huguccio pointed once again to the different meanings of the term ius naturale. You must consider the different meanings of natural law. For according to the natural law, that is the order and instinct of nature, or reason, or permitted, or fas there is the same liberty of all. But, according to the natural law that is divine precept, servitude was introduced on account of sin, for servitude is a penalty.64

But this was more a statement of the problem than a solution. A few years later Bernard of Compostella took up the issue and gave a more searching account of the relationship between precept, prohibition, and demonstration in the law of nature. As regards fas and demonstratio, liberty is of the natural law but the slavery of Chanaan and his successors was of the precepts of natural law, and one thing cannot belong to the precepts of natural law and its contrary to a demonstration of natural law. In that case it would counsel and prohibit the same thing, for commanding the one thing prohibits the other.65 63. Huguccio, Summa ad Dist.1 c.9, 35; Johannes Teutonicus, Gl. ord. ad Dist.1 c.9. 64. Summa ad Dist.1 c.7, 37–38. 65. Bernardus Compostellanus, ad Dist.38 c.8, “nec enim idem potest esse de preceptis et eius contrarium de demonstratione quia secundum hoc idem prohiberet et consuleret quia precipiendo unum prohibet contrarium” (Weigand, 275).

Canonistic Jurisprudence  37 Bernard’s final answer, however, was that two contraries could indeed exist within the permissions of the law of nature. “[I]n demonstrations each of the contraries may exist, because of the two contraries either is permitted and therefore either may be counseled, as for instance to take daily communion or not, to drink wine or not.”66 Here the function of permissive natural law was to allow for alternative or even opposed courses of action, either of which could be counseled or prohibited in different circumstances. The argument is not very satisfactory from a modern point of view since it excludes the possibility of appealing to natural law as a ground for doing away with slavery. But evidently the Decretists did not treat slavery as a grievous moral issue; they saw it rather as basically a problem in conflict of laws. (They were after all lawyers.) Their discussions were formalistic with little relevance to various kinds of servitude that existed in their own day. But they always started out from the assumption that humans were naturally free, that servitude was something that had supervened on human liberty, something that somehow had to be explained.

Perplexitas: Tolerantia So far the arguments about permissive natural law that we have considered dealt with courses of action that were at least morally acceptable if not always commendable. Another set of arguments concerned the ways in which a permission of natural law could relate to acts that would normally be considered illicit and sinful. This problem arose when the canonists considered the issue of perplexitas, “ensnarement,” the idea that a person might by entrapped in a situation where he could not help sinning however he acted. Was he then permitted to choose one evil in order to avoid the other? Gratian introduced this theme with the words, “No dispensation against natural law is permitted unless perhaps it is necessary to choose between two evils.” He then quoted a text of Pope Gregory I 66. Ibid., “set in demonstrationibus potest utrumque esse, quia duorum contrariorum utrumque licitum esse potest ut communicare qualibet die, non communicare, vinum bibere, non bibere.”

38  Foundations where the pope gave as an example of perplexitas the case of a man who vowed obedience to a religious superior. If the superior then commanded him to do something contrary to God the man would seem to be ensnared. If he obeyed he sinned by doing evil; if he disobeyed he sinned by breaking his vow of obedience. Gregory’s solution was that in such a case one should always choose the lesser evil, in this case by refusing to obey.67 The Decretists discussed many such examples, often ones involving illicit oaths of various kinds. Rufinus considered the case of a man who swore an oath to kill his brother. If he fulfilled the oath he was guilty of fratricide, if he failed to do so he was guilty of perjury. But this was a far from satisfactory conclusion. Rufinus illustrated the problem with a sort of reductio ad absurdum. A man might take an oath to fornicate, and “simple fornication” was a lesser sin than perjury (although both were grave sins), so on the ensnarement theory of choosing the lesser evil he was morally obliged to fornicate in order to avoid perjury. But Rufinus dismissed this argument as an absurdity. He could in fact easily dispose of it because, as Gratian explained later, an oath to do something sinful was invalid from the beginning and so no further guilt was incurred by not fulfilling it.68 Rufinus thought, however, that although a man could never be ensnared between two mortal sins there might be ensnarement between a mortal sin and a venial one.69 The Summa Elegantius explained that ensnarement between two mortal sins must be understood as referring only to the subjective state of mind of the person. A man who took an oath to kill another, believing such an oath to be obligatory, would see himself as ensnared between the mortal sins of homicide and perjury. But the dilemma arose only from his own feebleness of mind. If he took sound counsel he could easily evade the snare.70 As the author of the Sum67. Dist.13 c.2, For a collection of Decretist texts discussing perplexitas from a variety of points of view see S. Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX.” (Vatican City: Biblioteca Apostolica Vaticana, 1935), 257–98. 68. Rufinus, Summa ad Dist.13 dictum ante c.1, 32, referring to a subsequent text of the Decretum at C.22 q.4 c.5. 69. Ibid., “dico mortale, nam veniale forte aliquando oportet ipsum incurrere.” 70. Summa Elegantius, 27.

Canonistic Jurisprudence  39 ma Lipsiensis (1186) explained, a person was permitted to neglect such an oath by both natural law and canon law. Natural law said, “You shall not kill” and canon law said that promises to do evil were not to be kept.71 Some canonists, however, continued to hold that a person might be permitted to commit a lesser sin in order to avoid a greater one. The example of ensnarement they commonly gave was an ancient one that is still discussed by modern ethicists and still evokes disagreements among them. This was the dilemma: A man pursued by an enemy seeking to kill him passes by me. The enemy asks me if the man passed this way. If I tell the truth I betray the man to death and sin mortally. If I refuse to answer and remain silent the enemy will assume that his intended victim did indeed pass this way and the result will be the same. If I say he did not pass this way I may save the man’s life but by lying I commit a sin, at least a venial one. Several canonists treated this as a genuine case of perplexitas where the lesser evil should be chosen. Others were more rigorous. Huguccio, for instance, maintained that one should remain silent in such a case. “I am not ensnared . . . and I do not sin in remaining silent . . . for I do what I ought and it should not be imputed to me if something evil ensues outside of my intention.72 Huguccio’s conclusion was that one could never be ensnared between two mortal sins or two venial ones or between a mortal sin and a venial one in such a way that one was compelled to sin in some way. The question of perplexitas was of perennial interest to moral theologians, but more directly relevant to our theme of permissive natural law was the case of morally wrongful behavior that was not inescapable but deliberately chosen, and yet was still permitted by law in order to avoid some still greater evil. In the first Distinctiones of the Decretum Gratian gave two different examples of this teaching that became standard points of reference in later canonistic discussions. One of them concerned a matter of positive canon law, the other a 71. Kuttner, Schuldlehre, 271. 72. Summa ad Dist.13 dictum ante c.1, 214. In a common modern version of the problem a Nazi officer knocks at the door and asks whether a Jewish family is hiding in the attic. Should one lie? Ethicists disagree.

40  Foundations question concerning marriage and divorce that involved also divine law and natural law. The first example, presented at Dist. 4 c.6, was taken from a letter of Pope Gregory I. The pope learned that some people had a custom of stuffing themselves with food until the very hour of midnight on the day before the beginning of the Lenten fast. He deplored the practice but let it continue “out of mercy” lest something worse take its place. We do not know what worse kind of orgy the pope envisaged but the principle was clear. A lesser evil could be permitted to avoid a greater one. Gratian’s second example of this principle referred to the bill of divorce mentioned in the law of Moses at Deuteronomy 24:1. Throughout the centuries theologians have debated about the precise significance of this text and the discussion continues. It seems at least clear that the practice of divorce was widely accepted by Jews in the time of Moses and was not prohibited by law. Evidently, therefore, the text of Deuteronomy did not originally refer to a permission but rather to a requirement that had to be fulfilled if a divorce were to be recognized as legally valid. However, later Christian authors who held that divorce was intrinsically opposed to natural law saw it rather as a permission to act in a way that would have been illicit without such an authorization. Gratian introduced this teaching when he first defined the functions of law in a comment at Dist.3 post c.3 of the Decretum. There he wrote that law could permit “what is licit . . . or even what is illicit such as giving a bill of divorce lest worse things happen.” At another point he wrote that “it was permitted to give a bill of divorce lest blood be shed.”73 The last words referred to an argument mentioned by Hugh of St. Victor and presented earlier by some of the church fathers—but brusquely rejected by Augustine—which suggested that divorce and remarriage could be permitted to avoid the greater evil of homicide; 73. C.31 q.1 dictum post c.7, “Sed in veteri testamento multa permittebantur propter infirmitatem . . . sicut permittebatur quibuslibet dare libellum repudii, ne per odium funderetur sanguis innoxius.” On Gratian’s earlier comment at Dist.3 post c. 3 see n.18.

Canonistic Jurisprudence  41 without the option of divorce a man who hated his wife might kill her in order to get rid of her. Huguccio explained that, according to the Old Law, adultery was punishable by death but that, after a bill of divorce was granted, the spouses were allowed to marry again without punishment because they acted “by permission of the law.”74 Huguccio also took Gratian’s brief remark that the law might permit even illicit acts as a starting point for a detailed analysis of the idea of permissive law, developing along the way a whole vocabulary of terms to describe the different kinds of permission that could apply to acts that were morally acceptable and to those that were actually sinful. Permission is threefold. First, it applies to things that are neither commanded nor forbidden that may be good or bad, namely venial sins that are not commanded or forbidden, and such things as to marry or to claim one’s own, or to seek a prize.75

But this definition, with its reference to venial sins, did not satisfy Huguccio. Earlier writers had commonly identified permissive law in one sense as indulgence, a concession to human weakness that the law ignored or, so to speak, “winked at.” Huguccio, who had a reputation for rigorous treatment of moral questions, pointed out that this kind of permission, that condoned sinful acts, did not justify the act of the sinner. “As with all venial sins this permission is not properly called permission and it does not make licit or good what is permitted but only calls it not prohibited. If it was good before it remains good and if it was sinful before it remains sinful.”76 It was different with the second kind of permission. 74. Summa ad C.34 q.1 c.3), “Non puniebantur morte quia ex permissione legis habebant ut primis viventibus possent alios ducere . . . ut vitaretur gravius scilicet homicidium, ne scilicet interficerent uxores suas” (Weigand, 405). The text of Augustine mentioned above is included in the Decretum at C.33 q.2 c.9. 75. Summa ad Dist.3 dictum post c.3, 70, “Est enim triplex permissio, prima est de his que nec precipiuntur nec prohibentur et est tantum de bonis quam de malis, sicut peccatis venialibus que nec precipiuntur nec prohibentur, ut contrahere matrimonium, repetere sua vel non repetere, petere premium et huiusmodi.” 76. Ibid., “Et sicut sunt omnia venialia peccata haec permissio improprie dicitur permissio et id quod permittit non reddit licitum vel bonum, set dicitur permitti id est non prohiberi. Si ergo prius erat bonum et tale remanet, si erat peccatum et peccatum remanet.”

42  Foundations The second permission applies to things that would be bad if there were no permission but that with permission are good such as the eating of meat by a sick monk . . . and this permission is properly called dispensation. It not only does not prohibit but also concedes and consents and this is called simple and absolute permission because it absolves from guilt and fault.77

Monks were normally forbidden to eat meat but the Rule of St. Benedict itself made an exception for the weak and sick. So this was a straightforward case of a permitted dispensation against a merely disciplinary rule. The case was more complicated when the law explicitly allowed the committing of an intrinsically sinful act in order to avoid a greater evil. This was Huguccio’s third kind of permission: The third meaning concerns evils that are either venial or mortal, and this is called “comparative” (comparativa) because when two evils are compared with one another the lesser is tolerated so that the greater can be avoided. Thus, marital intercourse because of incontinence is permitted to avoid fornication as at Dist. 13 Nervi (c.2), and adultery to avoid homicide as here. . . . So too the ordeal by hot iron or single combat or prostitution in a city is permitted, and so in many cases a lesser offense is permitted in order that a greater one be avoided.78

But Huguccio was unhappy about the use of the word permissio in such cases. In continuing his argument he seems to have considered only the permissions of human law mentioned in the last words of the above passage. But earlier, commenting on the text of Dist.13 c.2 (Nervi) cited above, he had emphasized that the permission granted there was not a later concession of St. Paul; rather it was inherent in the moral law laid down by God from the beginning.79 Here he continued: 77. Ibid., “Secunda est de his que non interveniente permissione, si fierent essent mala, set interveniente permissione sunt bona ut esus carnium a monacho infirmo . . . et hec proprie dicitur permissio sive dispensatio. Hec non tantum non prohibit set etiam concedit et consentit.” 78. Ibid., “Tertia est de his que mala sunt sive venialia sive mortalia. Hec dicitur comparativa quia duobus malis sibi invicem comparatis quod est levius toleratur ut maius vitetur. Sic permittitur coitus causa incontinentie ut vitetur fornicatio ut di.xiii, Nervi (c.2) . . . sic adulterium ut vitetur homicidium ut hic . . . Sic permittitur purgatio ferri candentis, monomachia et meretrix in civitate et sic in multis aliis minus permittitur ut vitetur gravius.” 79. Summa ad Dist. 13 c.2, 226, “Sic ergo a principio coitus causa incontinentie

Canonistic Jurisprudence  43 This is improperly called permission. It would better be called toleration (tolerantia) or something allowed (sinitio). If the word is taken properly, to permit is voluntary, to allow involuntary. We permit willingly, we allow unwillingly. Hence this permission is said to be compelled (coacta) because we do not will or approve what we permit. Such permission does not make the things permitted licit or good, though they are not punished with a temporal penalty.80

Throughout the argument Huguccio was primarily concerned with canon law but his examples of marital intercourse and adultery dealt with permissions related to divine and natural law. The argument concluded with a characterization of three types of permission. “The first and second are voluntary, the third is constrained. The first is free, the second is absolute, the third is relative. The first does not prohibit, the second concedes, the third allows.”81 Huguccio’s threefold classification of permissions was incorporated into the glossa ordinaria of Johannes Teutonicus with some additional examples, and so it found a permanent place in the teaching of the law schools. Theologians also continued for centuries to discuss the problem of permitting a lesser evil to avoid a greater one. A principal point of contention, often discussed but not finally resolved, was whether a permission of divine or natural law, like the ones permitting divorce to avoid homicide or marital intercourse to avoid fornication, merely remitted a due punishment or actually absolved from guilt. This was still a live issue centuries later when Grotius wrote on permissive law and the conduct of warfare.

fuit permissus comiugatis, Qualiter ergo Apostolus permisit? Respodeo: permisit, id est a Deo permissum ostendit.” 80. Ibid., 71. “Hec improprie dicitur permissio set magis proprie dicitur tolerantia vel sinitio. Nam si proprie verbum accipiatur permittere voluntatis est, sinere noluntatis; volentes permittimus inviti sinimus. Unde et hec permissio dicitur coactiva quia quod sic permittimus non volumus nec approbamus. . . . Nam talis permissio quod permittit non reddit licitum vel bonum licet non puniantur temporali pena.” 81. Ibid., “Prima ergo et secunda est voluntaria, tertia est coactiva. Prima est libera, secunda absoluta, tertia comparativa. Prima non prohibet, secunda concedit, tertia sinit.”

44  Foundations

Licitum We can finally consider a group of texts where the term ius naturale was defined explicitly as meaning, in one sense, a permissive kind of natural law referring to an area of conduct where persons were free to act as they chose. The doctrine was built around some words of St. Paul at 1 Corinthians 10:22, “All things are permitted to me but not all are expedient.” Paul was discussing here the eating of meat sacrificed to idols along with other dietary precepts of Judaic law that had become matters of dispute among the early Christian converts. His teaching was that the converts were not bound by these precepts, but that they should take care not to avail themselves of their freedom in such a way as to scandalize their more scrupulous brethren who still observed them. But the words took on a broader significance when they were transposed from their scriptural origin to a juridical context. A typical text from a work of the late twelfth century, the Distinctio Lex naturalis, gave several derivations of the term ius naturale with an example of the meaning associated with each. Natural law could be derived from common animal nature (“What nature has taught all animals”) or from human nature (“A force naturally instilled in humans to do good and avoid evil”) or from the divine nature that was God (“The precepts of the Old and New Testaments”). But then the author explained that natural law also had another, different meaning. Ius naturale. . . . Licit and approved, not commanded or prohibited by the Lord or by any law, which is also called fas, as for instance, to claim something or not to claim it, to eat or not to eat. Whence upon the words of the Apostle, “All things are permitted to me,” Ambrose wrote, “By the law of nature.”82

The gloss occurs in almost the same words in the Summa Lipsiensis as a second definition of ius naturale after a first definition from Ro82. “Ius naturale . . . licitum et approbatum quod nec a domino nec constitutione aliqua precipitur vel prohibitur, quod et fas appellatur, ut repetere suam vel non repetere, comedere vel non comedere. Unde super illud Apostoli, ‘Omnia mihi licent’, Ambrosius, ‘lege naturae’” (Weigand, 209).

Canonistic Jurisprudence  45 man law (“What nature has taught all animals”).83 Another contemporary work repeated the body of the argument with the addition of another permissive text from Paul’s teaching, “to put away an unbelieving wife or not to put her away as at C.28 q.1 c.8.”84 The final reference was to a text of Augustine included in the Decretum which emphasized that Paul’s words concerning divorce at 1 Corinthians 7:12 were a permission or counsel not a precept. A similar terser version of the common argument ran like this, Ius naturale . . . is what is permitted and approved with no contradiction to the precepts of the law. Whence Ambrose, “All things are permitted to me by the law of nature”; so all things are permitted unless prohibited by a law or canon.85

Yet another anonymous work of the same period emphasized human free will in this area of natural law. Ius naturale is called . . . in a fourth way what is licit and approved, though not commanded or prohibited by any law, as to go through another’s field or not to go which is called fas, to eat or not to eat, whence Paul said, speaking of the use of food and idolatry, “All things are permitted to me”; all things, he said, regarding food are permitted by the power of free will and by natural law.86

The idea of permissive natural law presented in these texts is not limited to the various specific permissions mentioned in scripture; they are included rather as examples of the underlying principle that natural law could permit humans to choose among different courses of action. And we are not dealing here with a simple silence of the law, an absence or vacuum of natural law. Rather the natural law itself, in one of its various meanings, authorized such a realm of human free choice. 83. Weigand, 197. 84. Ibid. 85. “Est ius naturale . . . licitum et approbatum nulla contradictione pro lege preceptum. Unde Ambrosius, ‘Omnia michi licent lege naturae’, unde cuncta licent nisi lege vel canone prohibeuntur” (Weigand, 203). 86. “Ius naturale dicitur. . . . Quarto quod licitum est et approbatum quamvis nulla constitutione sit preceptum nec prohibitum veluti . . . comedere, non comedere, de quo apostolus Paulus cum de usu ciborum loqueretur ut de idolatria dixit, ‘Omnia mihi licent’, omnia dixit que ad cibum pertinent licent potestate liberi arbitrii et lege naturali” (Weigand, 205).

46  Foundations To sum up: Gratian’s Decretum has been described as one of the two great foundational works of Western jurisprudence (the other being the Digest of Justinian), and the collection of texts presented above shows how thoroughly the idea of permissive natural law was built into the teaching of its early commentators. Consideration of the three-fold nature of natural law as including precepts, prohibitions, and permissions led the Decretists to engage with many issues that would be of recurrent interest in later work—the origin of private property, liberty and servitude, marriage and divorce, the different kinds of permission and their different effects, conflict of laws as when an act was permitted in one system of law and prohibited in another, the permission of a lesser evil to avoid a greater one. The material was not presented in a form readily accessible to a modern reader so that, in working through the texts of the Decretists, one may sometimes feel lost in a world of endless arguments and counterarguments. But this is to misunderstand the endeavor of the canonists. The twelfth century was a great formative era in the history of jurisprudence; and, as Maitland once observed, in that renaissance of legal studies, the canonists were “important people.” Gratian’s texts provided them with an overview of a thousand years of juridical reflection on the life of the church in the world; but in those centuries different juridical traditions had grown up, shaped by different circumstances of time and place. They ranged from great affairs, like the right relationship between popes and emperors, to everyday matters that affected the life of all the faithful, like the proper way to contract a valid marriage. (Both topics were matters of dispute among the twelfth-century canonists.) The canonists were striving to shape, out of all this confused material, a coherent body of law that could guide the life of the whole church. And the early chapters of the Decretum presented natural law as a foundation on which the whole superstructure could rest. Yet the existence of disparate traditions was especially evident in Gratian’s treatment of this theme. The opening definition of natural law as the Golden Rule of scripture echoed a distinctively Christian tradition, but then the text of Isidore of Seville presented a body of remotely Stoic ideas, distilled through Roman law, that present-

Canonistic Jurisprudence  47 ed many different definitions. The idea of a permissive natural law took shape in the canonists’ writings as a response to the problem of accommodating all these meanings within a coherent structure of jurisprudence. The idea proved helpful, even necessary, in coping with a variety of problems and so came to be widely accepted by the Decretists. And the influence of their thought was not limited to the medieval era. The texts of the Decretum, with at least its Ordinary Gloss, continued for several centuries to be studied in Western schools of law. Many new editions of the Decretum and the Gloss were printed in the sixteenth and seventeenth centuries. There is one final interesting fact about the material we have considered. The idea that natural law could and must provide for an area of nonobligatory conduct seems to have been simply taken for granted.I know of only one dissentient voice. The author of the gloss Animal est substantia (1206–10) wrote: They say that demonstrations or permissions are part of this (natural) law. But this does not seem to be true because for me to stay or go are permissions, but how can they be part of the law when they do not oblige in any way?87

The idea, rare in the twelfth century, that all law must consist of commands imposing obligation would have a considerable future in later ages among jurists who were reluctant to assimilate the doctrine of a permissive natural law into their systems of thought. 87. Gloss Animal est substantia, Preface, “Huius iuris partes sunt precepta et prohibitiones quae in iure continentur. Demonstrationes sive permissiones dicunt esse de iure naturali sive partes huius iuris. Set non videtur hoc esse verum, quia me stare, me ire, permissiones sunt; quomodo ergo sunt partes iuris cum nullo modo ligent? Hoc non videtur” (Weigand, 246).

PA RT I I

Thirteenth-Century Theologians

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, the Sentences of Peter Lombard, had appeared in 1152; but, although the author knew the Decre1. In the mid-thirteenth century, however, Jacques de Révigny noted that the primeval natural law, ius naturale praemivum, did not lay down many rules but was content to indicate what was permitted or not prohibited. See E. Cortese, La norma giuridica, vol.1 (Milan: Giuffré, 1962), 55, n.47.

 

49

50  Thirteenth-Century Theologians tum of Gratian and used some of its material, he did not include any of its texts on natural law. The theologians of the late twelfth century, whose works commonly took the form of commentaries on the Sentences, also found little occasion to explore the subject further; it was left mainly to the domain of the canonists. This changed, however, in the thirteenth century. By way of illustration I want to discuss the contributions of two major scholars from different backgrounds—the secular theologian William of Auxerre and the Franciscan author of the Summa Halensis, then glance at a controversy initiated by Peter Abelard, and finally consider the work of the great Dominican master, Thomas Aquinas, who shaped a system of natural law that endured for centuries and still finds defenders in the modern age.

3

Parisian Masters

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

William of Auxerre 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 that William not only gave natural law a place at the heart of theology but that he also made the formulations of the canonists available to theologians. So far as we know William had no formal training in canon law but the subject was taught at Paris along with the more prestigious theology and perhaps there was some cross-fertilization between the two schools. (In the Preface to his Summa on the Decre1. Magistri Guillellmi Altessiodorensis Summa aurea, edited by J. R. Robaillier, vol. 3 (Paris: Centre de la Recherche Scientifique, 1987), 3.18pr, 368, “ius naturale origo et principium est omnium virtutum.”

 

51

52  Thirteenth-Century Theologians tum, Stephen of Tournai envisaged a jurist and a theologian sitting down together at a dinner table.) The treatment of natural law in William’s Summa began with a distinction between a broad and a strict sense of the term. In a broad sense ius naturale meant “what nature has taught all animals” (the old definition of Roman law). In a strict sense ius naturale applied only to rational creatures; understood in this way natural law was said to be “what natural reason with little or no deliberation shows us should be done.”2 The whole subsequent exposition dealt with natural law understood in this second way, as a law of rational creatures. William moved on at once to address an old problem of the canonists, posed now from the point of view of a theologian. If community of property was a precept of natural law, was the institution of private ownership necessarily sinful? He first presented a series of arguments asserting that this was indeed the case. Adam and Eve were bound to share all things in common and this could only have been from a precept of nature; and since the same nature still persisted we were all still so bound. It followed that anyone who appropriated anything for himself was guilty of mortal sin and that, therefore, in the existing state of affairs, we were all involved in such sin.3 William next added an argument from Aristotle. According to the philosopher, what was just according to natural law was more just than what was just according to positive law. But common property was just according to natural law and private property according to positive law. Therefore common property was more just, and we were therefore bound to obey the natural law that ordained it. And, if we transgressed against the law by appropriating something for ourselves, again we were guilty of mortal sin.4 Of course the author did not accept these unwelcome conclusions. His response to the arguments he had presented is especially significant because it introduced a key doctrine of the canonists into the mainstream of theology, though William cited a theologian, Prepositinus, as his source. He wrote that natural law included not 2. Summa, 3.18.pr, 369. 4. Summa, 3.18.1, 370.

3. Summa, 3.18.1, 369.

Parisian Masters  53 only precepts and prohibitions, but also “demonstrations.” “As Prepositinus says, in natural law there are some precepts and some prohibitions and some demonstrations.”5 Lottin noted that this doctrine is not to be found in Prepositinus and pointed to Rufinus as the source. But, while Rufinus did originate this definition of natural law, it seems to me likely that William took it directly from Huguccio since there are other echoes of Huguccio in his work. As the argument continues, however, it becomes clear that, although William borrowed the language of the canonists, he was adapting it in his own way. Like Hugh of St. Victor and Gratian, William first defined the precepts and prohibitions of natural law as the Golden Rule of scripture in its positive and negative forms. Then he explained that the general prohibition, “Do not do to others what you do not want done to yourself,” included such specific negative commands of the Decalogue as, “You shall not kill,” “You shall not steal,” for no one wanted to be killed or robbed by others. This was all conventional teaching. But when William turned to the demonstrations of natural law, he did not define them precisely as permissions of the law in the manner of the Decretists; he treated them rather as commands that obliged only conditionally. The precepts and prohibitions of the law bind always and absolutely. The demonstrations oblige at certain times and under certain conditions, so that the opposite may be done in newly emerging situations.6

In this formulation the natural law of demonstration was preceptive in the sense that it imposed obligation; it could be called permissive in the sense that it allowed for its own supersession as circumstances changed. The author went on at once to give an example of such a demonstration. According to natural law it was permitted to repel force with force. But Jesus commanded the opposite to his 5. Ibid., “Sicut dicit Prepostinus, in iure naturali sunt quedam precepta et quedam prohibitiones et quedam demonstrationes.” As a young man Willliam had studied under Prepositinus. Perhaps he heard these words from his master, who in turn was referring to earlier canonistic formulations. 6. Ibid., “precepta enim et prohibitiones iuris naturalis semper et simpliciter obligant. Demonstrationes sunt que ad tempus et secundum quid obligant, quarum opposite secundum casus emergentes licet fieri.”

54  Thirteenth-Century Theologians disciples; he told them to turn the other cheek. William did not explain this injunction in the usual fashion as a counsel but rather as a command suited to that time and place. It was given by the Lord so that the first Christians would draw others to God by the example of their gentle kindness. It is a good example of how a theologian could adopt a canonistic formula but use it to reach a conclusion that he considered to be more theologically sound. In similar fashion William argued that community of property was a precept of natural law but one that obliged only in the state of innocence. In the existing state of greediness and corrupt nature, common property was not commanded and ought not to be, for it would lead to a chaotic situation where political society would fall apart and the human race would perish in mutual slaughter. William added, with another echo of canonistic teaching, that, nevertheless, it remained true that all things should be shared in time of extreme need.7 We ought to care more for our neighbor’s well-being than for our own temporal goods. Although William at first defined the demonstrations of natural law as conditional precepts rather than as counsels or permissions, a little further on, when he moved on to a defense of private property, he did refer to ownership of property as a permission of nature. Here the argument began with a reply to Aristotle’s teaching that common property was just by natural law and private property only by positive law. In response William argued that private ownership was not only just by positive law but was also in accordance with natural justice.8 As he had earlier explained, the prohibition against theft, “You shall not steal,” was a rule of natural law; but if theft was contrary to natural law it followed that natural law must recognize the existence of private property. The next stage of the argument reads like a commentary on two teachings of Alanus and Huguccio. William first considered a problem that Alanus had raised. If it was just and good according to natu7. Ibid., 371, “Verum est tamen quod omnia sunt communicanda tempore extreme necessitatis.” 8. Ibid., “non tantum secundum ius positivum, sed secundum iusticiam naturalem.”

Parisian Masters  55 ral law that all things be common and also just and good that some things be private, then natural law included two goods that contradicted one another.9 And this was evidently unacceptable. William’s response again turned on differences of time and place. In different circumstances two contrary acts might each be good; it might, for instance, be good to accept or to refuse the office of preaching. So too natural law might favor common ownership or private ownership according to circumstances. Natural reason did indeed favor community of all things; it desired and cherished such a state of affairs as the state to which humanity aspired, the state of beatitude. But then a utilitarian argument supervened showing how natural law could also permit individual property. But natural reason, as if compelled (coacta) determines that some things be privately owned, for it knows that in the state of nature as it now exists it is more advantageous (utilius) that some things be private than that all be common; hence it maintains that some things be private lest worse happen; hence some things are private according to natural law as if by permission of nature.10

In this argument the natural law concerning private property was presented as a “permission of nature,” and as an example of what Huguccio had called “coerced” or “comparative” permission. The text also illustrates a point that was commonly taken for granted in these discussions. In the realm of conduct permitted by natural law, utilitarian or consequentialist arguments could properly guide human action. William also used Huguccio’s term, “comparative permission,” when he discussed the texts of Peter Lombard’s Sentences on marriage and divorce. Although Peter did not include a section on natural law in his work he did mention the idea of permissive law in his treatment of matrimony and so introduced the concept into a work that would come to be accepted in the theology schools as a standard 9. Ibid. For the teaching of Alanus see above, 27. For Huguccio on private property as justified by natural law and on “coerced” permission see 26, 43. One cannot assume that William knew both authors at first hand, but the teachings of the major canonists were widely diffused in the schools. 10. Ibid., 372, “sed aliqua esse propria dictat ratio naturalis quasi coacta . . . unde aliqua esse propria est de iure naturali quasi ex permissione naturae.”

56  Thirteenth-Century Theologians text book. Closely following the language of Ivo of Chartres (with of course the authority of Augustine always in the background), Peter wrote that marriage was granted to sinful humanity as an indulgence; it was voluntary not necessary, otherwise anyone who did not marry would be a transgressor. Then Peter explained some different meanings of the term indulgentia. The term “indulgence” can be understood in different ways, as concession, as remission, or as permission. And the permission of the New Testament refers to lesser goods and lesser evils. Among the lesser goods is marriage which does not merit a reward but provides a remedy. Among the lesser evils, namely venial sins, is coitus on account of incontinence. The marriage is indulged, the coitus conceded; such coitus is tolerated, that is, not prohibited.11

On the bill of divorce in Deuteronomy Peter repeated the old argument that in this case an evil was permitted to avoid a worse evil, the killing of a hated wife. The permission did not demonstrate the justice of God but it diminished the guilt of the sinner.12 In commenting on these issues William of Auxerre asked the further question whether it was in fact sinful to divorce a spouse. On the one hand, he wrote, Jesus had said, “What God has joined together let no man put asunder,” and this injunction was in accordance with natural law. To give a bill of divorce was therefore contrary to natural law and so sinful. But, on the other hand, the law of Moses provided for a bill of divorce and Moses received the law from the Holy Spirit. It seemed, therefore, that a man who divorced his wife did so in accordance with a law given by the Holy Spirit and by virtue of a just sentence given on his behalf. So his act was not sinful. William responded to these arguments by restating the distinctions of Peter Lombard concerning the different kinds of permission, with some variations of his own. A “permission of concession” permitted some act that in a particular situation was better than its opposite, as when a monk was allowed to eat meat in the company of 11. Sententiae in IV libris distinctae, vol. 2 (Grottaferrata: Editiones Collegii S. Bonaventurae, 1981),4.26.4, 413, “Illud scilicet conjugium indulgetur, id est conceditur, illud vero, id est coitio talis, permittitur, id est toleratur, ita quod non prohibetur.” 12. Sent. 4.33.3, 460.

Parisian Masters  57 others. A “permission of indulgence” permitted something that was licit although its opposite would be better, as when Paul permitted a widow to remarry even though it would be better for her to remain single. Finally, a “permission of toleration,” also called a “comparative permission,” permitted some sin to avoid a greater one. And it was in this way that Moses had permitted divorce and remarriage; it was to avoid a greater evil, the murder of the wife.13 William added that the ancient Jews were carnal and willful and ready to kill their wives when they wanted to have other ones. The argument continued with replies to the initial objections. It was not true to say that a bill of divorce was granted “in accordance with a law given by the Holy Spirit.” The husband acted within the law, but only according to the toleration of the law, not according to its justice; the judge did not decree that a man divorce his wife but only that he could do so without legal penalty. And, finally, Moses did not sin in permitting divorce. It was indeed sinful to do evil that good might come of it, but not to permit an evil in order to avoid a greater one.14 William added here an example of permitting a lesser evil that can give us a little insight into some realities of church life in the thirteenth century. If some priests were to litigate against lay officials who kept tithes for themselves, the judge would not punish the offenders; he would tell the priests to keep silent in order to avoid greater harm to the church.

The Summa Halensis The Summa Halensis or Summa Fratris Alexandri was formerly attributed to the Franciscan master, Alexander of Hales, but it is now known to be a composite work. The extensive treatise on law incorporated in Book 3 is commonly attributed to another Franciscan, John of la Rochelle, a student of Alexander.15 Following an example 13. Summa aurea, vol.4, 4.17.4.4, 415, “Est enim permissio concessionis. . . . Et est permissio indulgencie. . . . Et est permissio tollerancie que dicitur comparativa permissio quando permittitur aliquod peccatum mortale. Et hoc modo permisit Moyses divorcium fieri . . . ne fieret homicidium.” 14. Ibid., 416, 418. 15. Doctoris Irrefragibilis Alexandri de Hales Summa theologica seu. . . . Summa Fra-

58  Thirteenth-Century Theologians of John Marenbon I have referred to the author of Book 3 simply as “John.” John was especially interested in exploring all the various meanings that had been attached to the idea of natural law in different schools of thought and their different implications. Augustine and Hugh of St. Victor, he wrote, had defined only two rules of natural law, those of the Golden Rule, “Do unto others” and “Do not do unto others.” But Isidore of Seville had given many more meanings that were not reducible to these two. (Here the author quoted the key text of Isidore that had been included in the Decretum with its characterization of many different functions of natural law.)16 Finally Cicero had defined natural law as a law that was not derived from opinion but that an innate force instilled in us. To explain all these different meanings the author than gave a threefold definition of his own. Natural law, he wrote, could be innate or human or divine. In the first sense the law applied to all animals, in the second to rational creatures, and in the third sense it referred to the teachings of the law of Moses. The argument went on to explain how all the preceding meanings could be accommodated within these categories.17 In other scattered contexts John made it clear that, like William of Auxerre, he took for granted the idea that natural law could be permissive and he showed considerable versatility in devising triadic definitions to explain its different forms and functions. Among them, natural law could include concession, dispensation, and indulgence; it could consist of precepts, prohibitions, and concessions; it could be obligatory, useful, or expedient. tris Alexandri, vol.4 (Quaracchi: Collegium S. Bonaventurae, 1948). The Summa acquired a very wide diffusion because of its attribution to Alexander of Hales, an eminent master of theology at Paris who joined the Franciscan Order in its early days. On the authorship of the Summa with a review of modern scholarship on this question see A. Obiwulu, Tractatus de Legibus in 13th Century Scholasticism (Münster: Lit Verlag, 2003), 86–95. The Summa is elaborately divided by book, part, inquiry, question, chapter, article, but it also provides a simpler reference system. The subdivisions within each book are numbered consecutively, e.g., in Book 3 from 1 to 706. For passages cited I have given the book and the part followed by this numerical reference and then a page reference. Thus the passage referred to in the following note (note 16) is at Book 3, Part 2, Number 248, 349. 16. Summa, 3.2.248, 349. 17. Summa, 3.2.248, 350.

Parisian Masters  59 An interesting feature of John’s work is that, before discussing permissive natural law directly, the author reflected on a familiar problem concerning natural law and human free choice that was inherent in all medieval natural law theories. The terms “natural law” and “law of nature” had two basic meanings. They could be used as referring to the whole physical universe, ruled by a natural law that necessitated all its motions, or alternatively as referring only to rational creatures, who were governed by a natural law of reason but were still endowed with a power of free choice. The author began with a discussion of God’s eternal law, inspired mainly by Augustine, and then went on to consider the derivation of natural law from the eternal law. First raising some objections to which he would later respond, he cited some texts of the Decretum that defined the functions of law (including permission) as being to command, forbid, permit, counsel, punish, or grant a reward. (Dist. 3, post c.3, Dist. 3, c.4). But, John objected, if these were the essential functions of law then natural law could apply only to rational creatures who could take heed of its directives.18 Continuing his argument, John suggested another approach. Perhaps the intrinsic nature of law ought not to be derived from these particular functions but from law’s essential feature, which was to impose restraint on actions. But this still left a problem. Natural law constrained the actions of irrational creatures by necessity but it left humans with a power of free choice; hence the same natural law could not apply to all of creation. John replied that the divine wisdom expressed in eternal law did indeed order all things but in different ways. There was a twofold order of created beings. Some, the rational ones, were “masters of their own acts”; others, the irrational creatures, were not so endowed. Accordingly, the eternal law ordered the two kinds of being differently: “Therefore the eternal law orders by necessity the act of an irrational creature; however, it does not order the act of rational creatures by 18. Summa, 3.2.233, 328. For a lucid introduction to the idea of natural law as referring to natural morality or to the external phenomena of nature in medieval thought see F. Oakley, Natural Law, Laws of Nature, Natural Rights (New York: Continuum International Publishing Group, 2005).

60  Thirteenth-Century Theologians necessity but leaves it to their own judgment.”19 But, John concluded, there was still a certain commonality in the two kinds of natural law in that all creation owed obedience to God, something that applied to both rational and irrational creatures. A theologian by training, John attempted to provide a more sophisticated account of law, freedom and necessity than anything that Gratian had offered. He returned to these questions at a later point where he asked whether natural law could be defined as something that was imposed on humanity. This once more raised questions concerning the relationship between natural law and human free choice. Again raising objections to the position he intended to defend, John first argued that humans were originally created in a state of perfect liberty, and so there could not have been precepts and mandates of natural law instilled in them to limit this freedom. Also, freedom of choice was loosed from all necessity, but natural law was a law of necessity in that all creatures were moved by natural appetites that were not subject to the will. John gave a twofold answer. Natural law did not detract from liberty but guided it by showing what was fitting and decent, so that humans could avoid acts of sensuality that were vile and sinful. And, although some of the ends that humans sought were ineluctable, such as to seek happiness and avoid misery, the pursuit of such ends still left many choices open to humans. Natural law provided a rule for such choices. This law was “not a law of necessity” and yet it was properly called natural law because it was instilled in us by nature.20 It is not clear just what John meant here by a nonnecessitating natural law. He could have had in mind just the promptings of conscience that guided the actions of humans but did not necessitate them. These reflections formed a background to John’s more specific treatment of permissive natural law. If all human actions had been necessitated then the idea of a permissive law would have been meaningless. For John, on the other hand, all the natural law that related to human conduct was a law of liberty in the sense that it 19. Summa, 3.2.233, 329. 20. Summa, 3.2.241, 339–40, “actuum talium liberi arbitrii regula est lex naturalis quae non est lex necessitatis, quae etiam recte dicitur lex naturalis, eo quod cum ipsa natura nobis indita est.”

Parisian Masters  61 did not necessitate our acts. But within this sphere of “human natural law” some law (preceptive law) imposed a moral obligation and some law (permissive law) left humans free to act as they chose. When John considered some specific instances of permissive natural law he turned back to some standard examples of earlier canonists and theologians. The issue first arose when, in the course of exploring the various meanings of natural law in Isidore’s text, he had to explain the apparent mutability of natural law in the transition from common ownership to private property. John approached this old problem by citing the relevant texts of Gratian. Then, following William of Auxerre, he introduced the canonistic language that referred to “demonstrations” as a kind of nonobligatory natural law without, however, embracing the doctrine as his own. It is the opinion of some that in natural law some things are included as precepts and prohibitions but some as demonstrations, for instance that all things be common to all. And a demonstration of natural law differs from the precepts as a counsel from the precepts.21

According to this opinion, John wrote, natural law was mutable as regards its demonstrations because they were only counsels that did not oblige us except in case of necessity. However, John himself preferred another explanation derived from Augustine. The art of medicine aimed always at the health of the patient but a doctor might prescribe one regimen for a healthy person, another for a sick one. So too natural law prescribed common property in a state of innocence but individual ownership among fallen humanity. A subsequent discussion raised another perennial question that had been discussed by the canonists. Could an act be permitted by natural law that was prohibited by human positive law, and vice versa? Here the argument presented by John concerned both property and human liberty. He began with a problem that the Decretists had encountered in considering Isidore of Seville’s definitions of fas and ius, and gave his own explication of the text. 21. Summa, 3.2.247, 348, “Dicendum est quod opinio quorundam est quod in lege naturali quaedam sunt sicut praecepta et prohibitiones, quaedam autem sicut demonstrationes ut omnia esse communia omnibus. Et differt demonstratio legis naturalis a praeceptis sicut consilium a praeceptis.”

62  Thirteenth-Century Theologians [Isidore] says ‘To walk through another’s field is fas,’ that is, it is permitted (licitum) because fas means what is permitted, but ‘it is not ius,’ that is, it is not in accord with positive law but rather it is forbidden by positive law; therefore positive law makes illicit what is licit by natural law; therefore their decrees are contradictory.22

The opposite situation could also exist. For instance, to have dominion over another as a slave was contrary to natural law but licit according to positive law. It seemed, therefore, that positive law could change natural law and was superior to it. But, John continued, this conclusion was false. He responded to the arguments he had presented with one of his threefold distinctions—natural law treated some things as obligatory (debita), some as useful, and some as expedient. In support of this statement John next quoted Hugh of St. Victor’s definition, “In natural law there are these three, precepts, prohibitions, and concessions,” where the concessions referred to areas of permitted conduct. The precepts and prohibitions, John’s argument continued, were obligatory and they were summed up in the two versions of the Golden Rule; but the concessions of natural law referred to what was useful and expedient. In the state of nature as first instituted, natural law conceded common property and liberty as useful; and in a state of fallen nature it conceded individual ownership and servitude as expedient.23 Without an established division of property human greed would create disorder in society, and without some coercive power to control them humans would do violence to one another. A little further on, emphasizing Augustine’s teaching on servitude as a penalty for sin, John wrote, “Natural law decrees that freedom be taken away from malefactors in order to restrain their evil doing.”24 In another discussion of common property, John provided yet another terminology to define a threefold sense of natural law. In this version natural law could refer to what was obligatory, what was good, and what was equitable.25 Natural law made common owner22. Summa, 3.2.249, 351. 23. Summa, 3.2.249, 352. 24. Summa, 3.2.258, 364, “dictat enim ius naturale quod subtrahenda est malis libertas, ut arceatur eorum malitia.” 25. Summa, 3.2.257, 363, “Dicendum quod lex naturalis . . . dictat enim aliquid quia debitum, aliquid quia bonum, et aliquid quia aequum.”

Parisian Masters  63 ship “obligatory” in the sense that property must be shared with others in time of need. It was “good” according to natural law that all be common in a state of innocence and that private ownership be established in a state of corrupt nature—otherwise, John observed, evil men would snatch everything. Finally, natural law was defined as “equitable” in accordance with some well-known principles of Roman law; it was equitable that some things remain common—such as the air and sea and seashore—and it was also equitable that things which could be appropriated and that belonged to no one should be acquired by the first occupant.26 As a theologian, John was more interested in the permissions of scripture than in leftover problems of the canonists and he returned to the theme of permissive natural law in two substantial commentaries on the apparent discrepancies between the law of Moses and the teachings of Christianity. (We should recall that John had earlier defined the moral law of the Old Testament as a kind of natural law.) The problems were ancient ones, discussed by Augustine in the age of the church fathers, elaborated by the canonists in more complex systems of permissive law, and then taken into the theological syntheses of the thirteenth century. The issues that John first chose to discuss concerned the lex talionis (“an eye for an eye”), the granting of a bill of divorce, and the injunction to “hate your enemies” (Lv 19:18). And as usual the explanation of these texts turned on the distinction between preceptive and concessive law. “It is to be said that in the Mosaic Law some things are in accordance with precept and some with concession.”27 The precepts were good in themselves and in what they referred to, but it was different with the concessions. Although the act of concession was just, what was conceded was not always licit, for Augustine had written that the law permitted the people it ruled to commit a lesser offense in order to avoid greater ones.28 Thus, the law of 26. Ibid. See Inst. 2.1.1, 2.1.12. 27. Summa, 3.2.263, 379, “dicendum est quod quaedam sunt in lege mosaica secundum praeceptionem, quaedam, secundum concessionem . . . licet eorum iusta sit concessio, tamen id quod conceditur non semper licitum est.” 28. Citing De libero arbitrio, 5.1 (PL 32, 1227).

64  Thirteenth-Century Theologians retaliation was granted as a concession to avoid the greater evil of killing an attacker. It was the same with the bill of divorce. The law conceded or permitted this to avoid the greater evil that a man might kill a wife who displeased him. And so too the words, “Hate your enemies,” were a concession or permission; they did not approve of what they conceded. The law could concede some act in different ways, either by approving of it or only by not punishing it and not coercively preventing it.29 John presented another discussion of such problems under the heading, On the Law of Permissions. Here the author considered the taking of usury from non-Jewish peoples (Dt 24:19), the trial “by bitter waters” of a woman suspected of adultery (Nm 5:18) and, again, the bill of divorce. John held that all three permissions were explained by the alleged greed and lust and irascible nature of the ancient Jewish people, and once more by the principle that the law could permit a lesser evil to avoid a greater one. “By such permissions the lawgiver did what he could among such a people, namely to turn them aside from greater evils by permitting lesser ones.”30 If the Jews had not been permitted to take interest from outside peoples they would have practiced usury among themselves. Without the trial by bitter waters a woman might be condemned for adultery on mere suspicion. And it was better for a man to divorce his wife than to kill her. However, like William of Auxerre, the author of the Summa Halensis insisted that the act of divorcing a wife was sinful even though it was permitted by the law of Moses. An act in accordance with the law could be in accord with a law that either permitted or commanded. What the law commanded was good, what it merely permitted could be evil, even though it was a lesser evil in comparison with the alternative. The law concerning a bill of divorce did not command that a wife be divorced; it only tolerated divorce in the sense that it 29. Ibid., “hoc dicit secundum concessionem vel permissionem. . . . Tamem notandum quod est concedere per approbationem, et sic lex non concessit ista . . . et est concedere per non-coertionem, et hoc modo concessit quia scilicet non coercebat nec cogebat ad contarium nec puniebat ex hoc.” 30. Summa, 3.2.453, 663, “Fecit igitur legislator per huiusmodi permissiones quod in tali populo fieri potuit, videlicet per minorum malorum permissionem eos a maioribus averti.”

Parisian Masters  65 did not impose a legal penalty on the husband. John distinguished carefully here between crime (culpa) and sin (peccatum); a bill of divorce “took away the crime from the sin” in the sense that it left the sin unpunished.31 In discussing the problems of divorce, John sometimes transcribed arguments of William of Auxerre word for word, but at one point his argument led to a final categorization of the varieties of permissive law more elaborate than any that William had presented. This account included as many as five different meanings of permission, each with a different effect. A “permission of concession” permitted some act that was licit in itself; a “permission of dispensation” permitted an act that was not licit in itself but that was made licit by the dispensation; a “permission of indulgence” conceded a lesser good when an alternative would have been better; a “permission of toleration” permitted something that was simply illicit in order to avoid a greater evil. This was the kind of permission that Moses had granted in tolerating divorce, so John explained that in this case the saying, “He who permits consents,” did not apply unless the word “consent” was used improperly and “comparatively”; the lawgiver did not consent that an evil be permitted but that a greater evil be avoided. Finally, John mentioned a “permission of sustentation” as when God permitted some evil that he might have prevented.32 This multiplication of definitions in the works of the theologians we have considered is indicative of the variety of situations in which they found it necessary or useful to invoke the idea of permissive law.

Abelard and Indifferent Acts Another way in which the interests of canonists and theologians overlapped was in their treatment of “indifferent acts,” the adiaphora of the ancient Stoics and indifferens of Cicero, considered as an area of permitted behavior. Discussion of such acts and their relation 31. Summa, 3.2.456, 668. 32. Summa, 3.2.454, 665. The terms used by the author were “permissio concessionis . . . permissio dispensationis . . . permissio indulgentiae . . . permissio tolerantiae . . . permissio sustentationis.”

66  Thirteenth-Century Theologians to permissive natural law would continue throughout the whole period we shall consider; and, here again, there was mutual influence but also some divergence of approach between the two disciplines of canon law and theology. Canonists related the discussion of indifferent acts primarily to what was not commanded or forbidden by law; theologians discussed the same theme, but from the twelfth century onward they became especially interested in another question— whether any deliberate act could be truly indifferent. The discussion was initiated by the brilliant and controversial philosopher, Peter Abelard, a contemporary of Gratian and Hugh of St. Victor. Much earlier Augustine had taught that human actions that were not intrinsically evil could be culpable or praiseworthy according to the end to which they were directed.33 Twelfth century canonists recognized the importance of intention in assessing guilt. But Peter Abelard gave a more radical formulation of the doctrine and a new impetus to the discussion of it in his Ethica (ca.1135), where he argued that the moral value of any human act depended essentially on the intention of the actor. “It is in the intention, not in the deed, wherein the merit or praise of the doer consists.”34 Taken in one way this could mean that any act could be judged to be moral or immoral according to the end it aimed at; taken in another way it could mean that all acts were in themselves intrinsically indifferent. Abelard was bold enough to press his argument to the point of asserting that the men who crucified Jesus were not guilty of any wrongdoing if they really thought that they were doing their duty in carrying out a just sentence. Few of Abelard’s successors were willing to go so far, but more moderate versions of his argument persisted and became a common feature of medieval moral teaching. Peter Lombard, citing Augustine, insisted that some acts, such as 33. De moribus ecclesie, 2.13 (PL 32, 1356). 34. Peter Abelard, Abailard’s Ethics, translated by J. R. McCallum (Oxford: Basil Blackwell, 1935), 31. For further twelfth-century texts on this question see Odon Lottin, Psychologie et morale aux XIIe et XIIIe siècles, vol. 2 (Gembloux: J. Duculot, 1948), 421–65. For a more recent summary see John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 165–67.

Parisian Masters  67 adultery or lying, were intrinsically evil.35 Later theologians also distinguished in various ways between good, bad, and indifferent human acts. William of Auxerre wrote that some acts were so good in themselves that they could never be evil, and some so evil that they could never be good; but in between there existed a range of acts that could be good or bad according to varying circumstances.36 The Summa Halensis presented a similar analysis. Between the acts that were intrinsically good and those that were intrinsically evil we could find acts that were good in kind but that still could be done for a bad end, as for instance to give alms merely for the sake of vainglory. Also some acts that were bad in themselves could be done for a good end, as for instance to go to a brothel in order to reform a prostitute. And some acts were simply indifferent.37 Such arguments may remind us of some forms of modern situationist ethics. Albertus Magnus raised the question whether any deliberate human act could really be morally indifferent. He cited two texts of scripture that were often quoted in medieval discussions and that seemed to exclude such acts. Paul had written that all our acts must be directed to the glory of God (1 Cor10:31), and Jesus had condemned idle words (Mt12:36). But, Albert argued, if idle words were blameworthy, how much more were idle actions—merely pointless or meaningless ones. He concluded that in the realm of natural ethics there could be indifferent acts, but that for a theologian no deliberate act could be morally indifferent. Albert added, however, that many things that might seem indifferent such as eating and sleeping and taking rest and recreation after labor were in fact just and necessary.38 Another Dominican, Hugh of St. Cher, observed again that indifferent acts could be good or bad according to the intention of the actor.39 This position was classically formulated by Thomas Aquinas. According to Aquinas, some acts were intrinsically good, some intrinsically 35. Sent. 2.40, 520. 36. Summa aurea, 3.45.1, 876. 37. Summa theologica, 2.2.328, 335. 38. Albertus Magnus, Alberti Magni . . . opera omnia, vol. 28, De Bono, edited by H. Kühle, et al. (Monasterii Westfalorum: Aschendorff, 1951), 1.2.7,33–34. 39. Lottin, Psychologie, 428.

68  Thirteenth-Century Theologians evil, and some intrinsically indifferent. But any specific human act that was indifferent in itself would be good or bad according to the end to which it was directed. Aquinas concluded that no deliberate, purposeful act was morally indifferent.40 Before turning to the area of Aquinas’s work that is most important in the present context, his treatment of natural law and permissive law, we should recall some key features in the discussion of these ideas by the theologians of the earlier thirteenth century. Two of them deserve particular mention—the easy assimilation of canonistic material into theological discourse at this time, and the general acceptance of the notion of permissive natural law as essentially unproblematic. The idea was frequently deployed and hardly ever contested; and if an objection did arise it was brushed aside. An appeal to permissive natural law just seemed to be the most obvious and appropriate way of dealing with various discrepancies that were found among the authorities of canon law or the texts of scripture. Such attitudes were not, however, inevitable in a thirteenth century context. When we consider the work of Aquinas we encounter a different approach. 40. Thomas Aquinas, S. Thomae Aquinatis opera omnia, edited by R. Busa (Stuttgart: Friedrich Frommann Verlag, 1980), vol. 2, Summa theologiae, 1.2ae.18.8,9. For a recent discussion of Aquinas’s teaching on good and evil conduct see S. J. Jensen, Good and Evil Actions: A Journey through Saint Thomas Aquinas (Washington, D.C.: The Catholic University of America Press, 2010).

4

Thomas Aquinas

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 his predecessors had done. In considering his work, therefore, we must try to understand how he came to formulate his doctrine of natural law in this way and why he chose to do so. A further point is that, although Aquinas himself did not formulate a doctrine of permissive natural law, nevertheless his work is important in the history of the idea. That is because his texts on natural law were taken up by later thinkers, especially among the Spanish neo-scholastics, who accepted much of Thomas’s teaching but supplemented it with their own versions of the view, still current in the sixteenth century, that natural law could be permissive as well as preceptive.

 

69

70  Thirteenth-Century Theologians

Approaches to Aquinas There are many ways of appraising the works of Aquinas, but no one, so far as I have noticed, has been interested in relating his teachings to the earlier tradition of thought concerning permissive natural law.1 An older “manualist” or textbook version of his argument saw it as proceeding from self-evident universal principles to secondary rules of conduct and then to tertiary ones until, by prolonging such an analysis, a sufficiently skilled casuist could tell us how to behave in all the contingent circumstances of life.2 One modern defender of Aquinas’s teaching still found it necessary to inform his readers that it did not present merely “a restrictive, regimented, and intractable series of orders and mandates.”3 There are in fact some passages of the Summa theologiae which could be read as having that meaning, but various recent commentators have emphasized a different aspect of Thomas’s natural law, a flexibility, that left open a wide sphere of choice to individuals in the practical conduct of their day-to-day life.4 A similar divide appears in modern discussions about the roles of a rule-based system of ethics and a virtue-based system in Aquinas’s work. It is sometimes argued that a rule-based system merely lays down laws to be obeyed, leaving no scope for human autonomous judgments, while a virtue-based ethic allows a person to 1. On a variety of modern approaches to Aquinas’s theory of natural law see F. Kerr, “Natural Law: Incommensurable Readings,” in B. Davies, ed., Aquinas’ Summa Theologiae: Critical Essays (New York: Rowman and Littlefield, 2006), 245– 63; R. P. George, In Defense of Natural Law (Oxford: Clarendon Press, 1999, 31–91; A. J. Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: Clarendon Press, 1996), 1–81. The fact that Aquinas’s teaching on natural law is often regarded as “paradigmatic,” but did not include a treatment of permissive natural law, helps to explain why this topic is commonly ignored by modern historians and theorists of natural law. 2. On “manualistic morality” and some modern criticisms see Fulvio di Blasio, God and Natural Law: A Rereading of Thomas Aquinas, translated by D. Thunder (South Bend, Ind.: St. Augustine’s Press, 2006), 51–60. 3. C. P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct (Westport, Conn.: Greenwood Press, 2001), 193. 4. This point of view is persistently suggested by Thomas Gilby in the notes and appendices to his translation of the relevant sections of the Summa theologiae (henceforth cited as ST). See St. Thomas Aquinas. Summa theologiae, vol.28, Law and Political Theory (1.2ae.90–97) (London: Eyre and Spottiswoode, 1966).

Thomas Aquinas  71 choose the best course of action in different circumstances, guided by the virtue of prudence. Evidently, appraisals of Aquinas’s work can depend on which ethical system is attributed to him; but the difficulty in such an approach is that both doctrines were fully developed in his thought.5 Aquinas discussed both the virtue of prudence and the precepts of natural law as guides to human conduct without formally relating the two parts of his thought to one another, though his teaching on prudence provides a link between them. A doctrine of permissive natural law might have provided some more connective tissue. Before turning to these themes, we need to establish one important preliminary point. Aquinas did not reject the idea of permissive law as inherently self-contradictory, as some later thinkers would. He accepted the doctrine without demur; he just did not choose to incorporate it into his teaching on natural law.

Permissive Law Aquinas understood perfectly well that law could be permissive as well as preceptive and he explained the fact in several of his works, beginning with the early commentary on Lombard’s Sentences. In that work Aquinas had to deal once more with the old argument about the bill of divorce permitted in the law of Moses. To explain it he quoted the opinion of contemporaries who held that there were four kinds of permission—absence of precept, absence of prohibition, absence of prevention, and absence of punishment. This distinction, Aquinas noted, led some commentators to the conclusion that the law of Moses referred only to the last kind of permission; it exempted those who divorced and remarried only from the penalties of the law. Another opinion held that the parties were freed from guilt as 5. On the modern debate see P. M. Hall, Narrative and the Natural Law: An Interpretation of Thomistic Ethics (Notre Dame: University of Notre Dame Press, 1994). The important role of prudence in Thomistic theory was emphasized by J. Bowlin, Contingency and Fortune in Aquinas’s Ethics (Cambridge: Cambridge University Press, 1999) and D. M. Nelson, The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (University Park: Pennsylvania State University Press, 1992).

72  Thirteenth-Century Theologians well as from punishment. Aquinas wrote that the latter opinion was more probable but that the former one was commonly held. He did not make any original comment of his own here on permissive law.6 Aquinas returned to this subject in two mature works written during his second regency at Paris from 1269 to 1272, his commentary on Aristotle’s Ethics and the first part of the second book of the Summa theologiae. The relevant text of Aristotle dealt with the prohibition of suicide. Aristotle first wrote that no law commanded a man to kill himself; then he added the unlikely comment, “And what the law does not command it forbids.” This assertion has puzzled modern scholars and it may be that the text as it has come down to us is corrupt, but this was the version that Aquinas knew in the Latin translation available to him. He explained it thus. This is not to be understood as though there were no middle ground between command and prohibition, for there are many things that are not commanded or prohibited by law; rather they are permitted to human choice as, for instance, to buy something or not to buy it. The text is to be understood as meaning that the only things the law never commands are those that are prohibited as intrinsically unjust, and so it seems that to kill oneself is intrinsically unjust since the law never commands it.7

But this was more a correction than an explanation of Aristotle’s view. In Aquinas’s argument, absence of command in itself did not necessarily imply prohibition as in Aristotle’s text; it could also indicate something “permitted to human choice,” as with the first kind of permission (“absence of precept”) mentioned by Aquinas in his discussion of the bill of divorce. Aquinas returned to the theme of permissive law at a key point in the “Treatise on Law” incorporated in the Summa theologiae. Before discussing in detail the varieties of law—eternal, natural, hu6. In quattuor libros Sententiarum, Opera, vol. 1, 4 Sent. 33.2.2. The text was added to the Summa theologiae at Suppl. 67.3. At ST 1.2ae.105.4 ad 8 Aquinas wrote that he would return to the question of divorce when he considered the sacrament of matrimony, but he never reached that point in his work. In referring to the views of contemporaries Aquinas perhaps had in mind Bonaventura who gave the same classification of four types of permission. 7. Opera, vol.4, Sententia libri Ethicorum, 5.17,n.2, “. . . multa sint quae a lege non precipiuntur nec prohibentur, sed permittuntur hominum voluntati.”

Thomas Aquinas  73 man, and divine—Aquinas first considered the nature of law in general, defining characteristics that would presumably apply to all the different species of law that he would go on to treat. The definition of law presented in this part of the Summa is often discussed—“Law is an ordinance of reason for the common good promulgated by one who has care of the community.” Less often noted is Aquinas’s explanation of the functions of law. But this is important too; to understand the nature of law we need to know not only what law is but also what it does. Aquinas tells us by quoting the same text of Isidore of Seville on the effects of law that Gratian had included in the Decretum. “Every law either permits something . . . or forbids . . . or punishes.” Aquinas continued: There are three different kinds of human acts. . . . Some acts are intrinsically good and as regards them the role of law is to prescribe or command . . . some are intrinsically evil, and as regards them the role of law is to prohibit. But some acts are intrinsically indifferent and as regards them the role of law is to permit and, moreover, acts can be called indifferent that are only a little good or a little evil.8

Aquinas here clearly accepted the view that, in principle, law could be permissive, and he carried through the argument quite consistently in his treatment of positive human law. He wrote that this law did not prohibit all evils but only the graver ones that harmed others such as murder and theft. And, just as God permitted some evils that he could have prohibited, so too human law tolerated some things that were evil in themselves—Aquinas mentioned prostitution and the rites of nonbelievers as examples. He justified the toleration of such evils on consequentialist grounds; their suppression might lead to worse things or impede the emergence of some good.9 The argument here was quite traditional. Aquinas could quote Augustine in support of his position. Aquinas referred to indifferent things again when he considered divine positive law and compared the freedom of the New Law of 8. ST 1.2ae.92.2, As regards indifferent acts, “lex habet permittere et possunt etiam indifferentes dici omnes illi actus qui sunt parum boni vel parum mali.” The last words echoed a phrase of Peter Lombard at Sent. 4.26.4. 9. ST 1.2ae.96.2, 2.2ae.10.11.

74  Thirteenth-Century Theologians Christ with the restrictions of the Old Law. Some human acts, he wrote, were indifferent, neither necessary to the faith nor opposed to it, and such acts were neither commanded nor forbidden by the New Law. Some works . . . are left by the lawgiver, namely Christ, to each individual according to his responsibility, so that each one is free as regards such matters to determine what it is expedient to do or avoid, and each superior is free to direct his subjects as regards what they should do or avoid.10

In the same way, Aquinas wrote, the conduct of the external ceremonies of divine worship could be left to the faithful.11 Aquinas did not explain here who was to decide such matters; he passed lightly over a theme that would become a matter of bitter controversy in the adiaphora controversies of the Reformation. So far Aquinas has emphasized the area of free choice left to humans in systems of positive law, both human and divine. The situation is more complicated when we turn specifically to the law of nature. Aquinas was as interested in human freedom as in natural law. Yet he avoided using the language of permissive natural law that had become widespread during the previous century. Permissive law allows for a zone of freedom; preceptive law necessitates certain courses of action; and Aquinas chose to present his doctrine of natural law as a series of precepts and prohibitions (including those of the Decalogue). As one modern author observes, such a system of law might seem “a ball and chain as far as freedom is concerned.”12 But this is evidently not the whole story. For Aquinas human life was shaped not only by obedience to the law but also by the practice of the moral virtues. We need, therefore, to consider in turn his discourse on virtue and his discourse on natural law, and see how both could provide for a realm of human freedom, before trying to understand why he eventually excluded the idea of permissive natural law from his system. The treatment of virtue and the treatment of law were similar in this, that both started out from man’s final end and then considered the means by which the end could be attained. 10. ST 1.2ae.108.1. 11. ST 1.2ae.108.3 ad 3. 12. Di Blasio, God and Natural Law, 172.

Thomas Aquinas  75

Freedom and Virtue In many passages scattered throughout his works Aquinas emphasized that man was a free agent because he was “master of his acts.” He also wrote that humans were free in the sense that they existed for their own sakes, not in order to serve others as slaves. “Man is not ordered to another as his end for that is the relationship of slaves to masters,” Aquinas wrote.13 (And yet, like most of his contemporaries, he took for granted the existence of servitude in his own society.)14 In Thomist thought, freedom of choice was seen as an intrinsic attribute of man as a rational creature. It was because the rational intellect could discern and compare different courses of action that the will could choose among them. Aquinas also noted that the human intellect could not only judge among different courses of action but could also discern the final end to which they were directed.15 When he turned to a more detailed consideration of the final end, Aquinas introduced the theme by again emphasizing the human power of free choice. Since man is made in God’s image, insofar as that image implies intelligence and free choice . . . it remains to consider man as the source of his own actions, having free choice and power over his acts.16

And, a little further on, But man is master of his acts through reason and free will . . . now the object of the will is some end or good. Hence all human acts must be for the sake of an end.17 13. ST 1.2ae.1.2, 1.2ae.104.1 ad 3. 14. Aquinas’s scattered comments on servitude are conveniently assembled in Finnis, Aquinas: Moral, Political, and Legal Theory, 184–85. Aquinas presented an uneasy mixture of Aristotle’s doctrine of natural slavery with the Augustinian teaching that slavery was not natural to man but was introduced as a consequence of sin. But, as Finnis rightly observed, it is often difficult to know whether to translate Aquinas’s servus as “slave” or “serf” or “servant.” 15. ST 1.82.1. 16. ST 1.2ae.1 Prologus, “Quia . . . homo factus est ad imaginem Dei dicitur, secundum quod per imaginem significatur intellectuale et arbitrium liberum . . . restat ut consideremus de homine secundum quod ipse est suorum operum principium, quasi liberum arbitrium habens, et suorum operum potestatem.” 17. ST 1.2ae.1.1, “Est autem homo dominus suorum actuum per rationem et

76  Thirteenth-Century Theologians The final end that all sought was a state of complete fulfillment, of happiness or felicity. And this happiness was twofold. The ultimate good was the vision of God in heaven.18 There was also a subordinate good, a sort of incomplete felicity that could be achieved here on earth.19 In explaining how this end was to be achieved Aquinas turned to a consideration of the traditional virtues, and here again his argument referred to human reason and the power of free choice. The happiness that humans desired was to be sought through the practice of the virtues. “Happiness is the reward for virtuous acts,” Aquinas wrote. And, “The particular ends of the virtues are ordered to happiness as their final end.”20 But the decision to act in a virtuous fashion was itself a matter of free choice guided by reason. In the words of Aquinas again, “An act of virtue is nothing other than a good use of free will.” Also, “Only the virtue concerned with works of reason is proper to man.”21 Humans were not compelled to be virtuous. They could turn away from their proper end and fall into sin; but a sinful act was also an act of choice, though here the will and reason were misled through some appetite of the senses. Moreover, in the realm of practical action, free choice did not mean only a choice between virtue and vice but also a choice between different kinds of virtuous living. Aquinas acknowledged that the last end, the final good, was ineluctable, “We cannot not want to be happy,” he wrote.22 But he also insisted that this ineluctability of the end did not mean that our choices were necessitated. The final end did not predetermine the choice of some particular means to the end because the end might be attained through some alternative means.23 There were various subordinate ends in life that could be means to the final end, and “wherever there are several ends there can be choice among them.”24 voluntatem. . . . Objectum autem voluntatis est finis et bonum. Unde oportet ut omnes actiones humanae propter finem sint.” 18. ST 1.2ae.1.8. 19. ST 1.2ae.3.2, 1.2ae.5.3. 20. ST 1.2ae.5.7, 1.2ae.13.3 ad 1. 21. ST 1.2ae.55.1 ad 2, 1.2ae.55.2 ad 2. 22. ST 1.2ae.13.6 23. ST 1.2ae.13.6 ad 1. 24. ST 1.2ae.13.3 ad 2.

Thomas Aquinas  77 Finally, there was a need for choice in the exercise of the virtues themselves, for innumerable particular cases could arise where different judgments were possible. Here the virtue of prudence, a sort of architectonic virtue, could direct the ways of practicing all the others.25 Prudence was defined as right reason applied to practical action.26 Because it included an understanding of both universal principles and particular cases it could guide humans to choose wisely in all the contingent circumstances that would arise in the course of human affairs.27 This whole structure of argument about virtue and prudence and freedom seems congruent with earlier doctrines of permissive law that allowed a sphere of free choice to humans. But when we turn to Aquinas’s teaching on natural law we seem at first to be entering a different world of thought where happiness, at least the imperfect happiness that is possible in this world, is to be attained not by freely following the paths of virtue, but by faithfully obeying rules of conduct derived from natural law.

Law and Freedom An all-embracing natural law that governed every detail of human life would leave no room for freedom of choice except a freedom to accept voluntarily the dictates of the law; and that is how some older students of Aquinas have understood his doctrine. Others, as we noted, have pointed out that this is an oversimplification. Aquinas’s teaching allowed for a considerable area of free choice just as various earlier systems of natural law had done. The unusual feature in the work of Aquinas is that it presented the relevant argument without any appeal to the commonly accepted earlier language of permissive natural law. At first sight, though, the system of law presented by Aquinas can indeed look like a rigid grid of rules that control human life in intricate detail and that are derived by syllogistic reasoning from selfevident first principles like the laws of geometry, as in this passage, 25. ST 1.2ae.58.2 ad 4. 27. ST 1.2ae.58.5.

26. ST 1.2ae.56.3.

78  Thirteenth-Century Theologians a brief comment on natural law included in Aquinas’s treatment of law in general: Just as in theoretic reasoning the conclusions of various sciences are drawn from indemonstrable first principles that are naturally known . . . so too from precepts of natural law, as from general and indemonstrable principles, human reason has to proceed to more particular determinations.28

When he came to consider natural law in more detail, Aquinas returned to his argument about theoretic and practical reasoning. Theoretic reasoning starts out from the idea of being, Aquinas explained, and its first indemonstrable principle is the idea of noncontradiction; the same thing cannot be and not be at the same time. But practical reasoning has a different foundation; it is grounded on the notion of the good, defined as that which everyone seeks: [T]he good is what all seek after. And so the first principle of law is that good is to be done and sought after, and evil is to be avoided. All other precepts of natural law are based on this.29

This has been called a “vacuous first principle” because it does not explain the nature of the good we are to seek.30 But Aquinas has already told us that the sought after good for humans is a life of fulfillment, of happiness. The novelty here is that the voice has changed from the indicative mood to the imperative, from description to prescription.31 28. ST 1.2ae.91.3. See 1.2ae.90.1 ad 2, “ratio etiam practica utitur quodam syllogysmo in operabilibus.” 29. ST 1.2ae.94.2, “[B]onum est quod omnia appetunt. Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum, et super hoc fundantur omnia alia praecepta legis naturae.” 30. K. Nielsen, cited in P. E. Sigmund, St. Thomas Aquinas on Politics and Ethics (New York: W. W. Norton and Company, 1988), 213. 31. Grisez and Finnis have maintained that this first principle is not a moral imperative but a formulation of a necessary condition of all practical reasoning. But Aquinas referred specifically to a precept of the law (praeceptum legis). Perhaps he intended both meanings. His subsequent argument moved easily from descriptive to prescriptive statements. (We do pursue ends that we perceive as good. We ought to obey the precepts of natural law.) I think Aquinas saw no problem in arguing in this way because, for him, the “is” and the “ought” were both reflections of the one eternal law of God. But the whole subject remains controversial among Aquinas scholars. Grisez first stated his argument in “The

Thomas Aquinas  79 To give further content to his argument, Aquinas next observed that reason apprehends as good whatever humans have a natural inclination toward.32 He then went on to specify his familiar four inclinations. There was an inclination to self-preservation that we shared with all creatures, an inclination to procreate and rear offspring that we shared with all animals, and two inclinations inherent only in humans as rational creatures—to live in society and to know the truth about God.33 Aquinas presumably included the words “about God” because God was the supreme good, but he went on at once to give the words a broader import as meaning “to shun ignorance” in general. Then he explained further that this meant “to act according to reason, that is according to virtue” and that to act reasonably was one of the natural inclinations of humans.34 From these last inclinations Aquinas derived two primary precepts of natural law—that we should not harm others with whom we have to live sociably together and that we should act in accordance with practical reason. But these primary precepts could be understood as regulating every detail of human conduct, everything that reason could control. The commands of natural law, Aquinas wrote, extended to everything that practical reason recognized as human goods.35 Accordingly, from the first common principles of natural law, reason could derive more particular rules that might be expressed in human positive laws. So too, all the moral precepts of the Old Testament, notably those of the Ten Commandments (in which all the other moral rules of the Old Law were implied according to Aquinas) were contained in the natural law that reason could discern.36 By emphasizing only such texts one can indeed present Aquinas’s teaching on natural law as a rigid set of rules governing all the acFirst Principle of Practical Reason,” Natural Law Forum 10 (1965): 168–96. For a reformulation see J. Boyle, J. Finnis, and G. Grisez, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence 32 (1987): 99–151. 32. ST 1.2ae.94.2. “omnia illa ad quae homo habet naturalem inclinationem ratio naturaliter apprehendit ut bona.” 33. Ibid. 34. ST 1.2ae.94.2,3. 35. ST 1.2ae.94.2, “omnia illa facienda vel vitanda pertinent ad praecepta legis naturae quae ratio practica naturaliter apprehendit esse bona humana.” 36. ST 1.2ae.100.1, 3.

80  Thirteenth-Century Theologians tions of humankind and leaving no room for human initiative and choice. But that was certainly not Aquinas’s intention. For him law and freedom were not only compatible with one another but were mutually interdependent and both grounded in human rationality. The power of reason to judge among different actions gave humans a capacity for free choice, and without that capacity there could be no meaningful law. “Man has free choice. Otherwise counsels, precepts, prohibitions, rewards and punishments would be of no avail.”37 Only humans could respond to such incentives; there would be no point in counseling or commanding a stone not to fall. It might still seem, though, that in the realm of law, human freedom could extend only to choosing whether to obey or disobey the law’s commands. But, if one considers in more detail Aquinas’s argument, of which I gave only the barest outline, it proves to include reservations and explanations that left ample room for humans to choose between different ways of acting in different circumstances. We can now turn to this side of Aquinas’s thought, considering in the first place the four basic inclinations on which his system was built. If we take into account some other commonly accepted ideas of Aquinas and his contemporaries, it becomes clear that the natural inclinations did not in themselves determine how humans should act in every particular situation. According to the first inclination of self-preservation, life was to be cherished; but it was just to execute a criminal and it was an act of supreme virtue to lay down one’s life for a friend. Marriage and the rearing of children conformed to natural law in the second sense, but it was better to choose a life of virginity. And, as for the last two inclinations, there are many ways of living in society and many different reasonable courses of action that can be pursued. As Jean Porter rightly observed, “the fundamental human inclinations are permissive.”38 But Aquinas himself did not use this language. So, before considering some possible difficulties in his argument, we need to understand how he developed his own doctrine of natural law and human 37. ST 1.83.1. 38. J. Porter, The Recovery of Virtue (Louisville: Westminster John Knox Press, 1990), 143–44.

Thomas Aquinas  81 freedom without any appeal to the idea of a permissive natural law. Earlier thinkers had commonly argued that permissive natural law left open a sphere of free choice for humans in the practical conduct of their day-to-day life and for societies in shaping their own structures of positive law—concerning property ownership for instance— in accordance with their own needs and preferences. Aquinas would reach a similar conclusion but by a different course of argument. His teaching was based on two themes that recur at various points in his work—the great diversity among human individuals and societies, and the indeterminacy of the primary precepts of natural law and of rules derived from them. In an early discussion on the natural law relating to human social life, Aquinas emphasized that the law did not bind each individual to a particular role. It left them free to choose their own paths of life according to their own abilities and inclinations. Many tasks were necessary for the perfection of a society and human nature was inclined to the fulfillment of them all. But, because human nature varied in different persons according as it was individuated in this or that one, it inclined one person to choose one task, another to choose another. One might choose a life of virginity and contemplation, another might become a farmer or builder or choose some other occupation. And it was precisely because of this diversity among humans, along with divine providence, that all the tasks necessary for a society were duly accomplished.39 Aquinas wrote later in the Summa theologiae that “human nature is variable.” He also extended the argument; it was not only that nature varied in different individuals, but also that human societies changed with changing times so that they would institute “diverse and conflicting laws.”40 And also, he noted, because of this diversity the common principles of natural law could not be applied in the same way to different peoples.41 This diversity of human affairs led Aquinas to a reconsideration 39. ST Suppl. 41.2. At ST 1.2ae.183.2 Aquinas wrote, arguing for a variety of states and offices in the church, that the perfection that is one and simple in God can be found in creatures only in a multiform and diverse fashion. 40. ST 2.2ae.57.2 ad 1, 1.2ae.97.1, 1.2ae.91.4. 41. ST 1.2ae.95.2 ad 3.

82  Thirteenth-Century Theologians of the relationship between theoretic and practical reason. Earlier he had remarked on a parallel between them; but, when he came to consider the question of diversity by asking whether the same natural law could be applied to everyone, he emphasized a basic difference between the two modes of arguing. Both proceeded from general principles to particular conclusions, and in the case of theoretic reasoning the conclusions were always necessarily true.42 But practical reasoning dealt with contingent matters, the realm of human acts, and here reason did not reach conclusions that were always valid in all circumstances. Aquinas gave an old example of this. From the general principle that we should act reasonably, we can conclude that a deposit held in trust ought to be returned to the owner, and this is indeed normally true; but in a particular case it might be injurious to return it and then it would be unreasonable to do so, as for instance if the thing deposited were to be used to harm one’s country. Aquinas’s argument here reached a significant conclusion. The more we descend to particular cases the more a common principle is found to be inadequate or defective (tanto magis invenitur deficere).43 Aquinas continued his discussion with a distinction between the primary and secondary precepts of natural law, which led to an explanation that the rules of natural law were necessarily indeterminate in some ways, leaving a space for human choice. The first principles were “common conceptions,” known to all and invariable. The secondary precepts were more specific rules of conduct derived from the first principles. In Aquinas’s taxonomy of law, human positive laws provided the necessary further specifications of the role of natural law in human affairs, so that one modern scholar could observe that, for Aquinas, “Human law is simply an extrapolation from natural law.”44 But this is only partly true; the human laws were ex42. ST 1.2ae.94.4, Aquinas gave as an example the conclusion that the angles of a triangle always equal two right angles. 43. Ibid., “Et ideo . . . tanto magis invenitur deficere quanto magis ad particularia descenditur.” The case of the unreturned deposit was an ancient one attributed to Socrates. 44. A. Lisska, “The Philosophy of Law of Thomas Aquinas,” in A Treatise of Legal Philosophy and General Jurisprudence, vol. 6, ed. F. D. Miller and Carrie-Ann Biondi (Dordrecht: Springer, 2007), 299.

Thomas Aquinas  83 trapolated, but the extrapolation was not simple. Aquinas held that it was of the essence of human laws that they be derived from natural law but also that these laws could vary from people to people.45 And, in explaining how this could come about, he introduced a key distinction. Human positive laws could be derived in two ways—either as conclusions from natural-law premises or as determinations of matters that natural law left undecided.46 The conclusions were themselves secondary principles of natural law incorporated into human law; but the determinations were supplements to natural law; they filled the space that natural law left open for human decision making. Their authority came from human law alone. For instance, Aquinas explained, human laws prohibiting such things as murder and theft were derived directly as conclusions from the primary precept of natural law stating that we should not harm others, and so they expressed secondary precepts of natural law and had the force of natural law. But the particular penalties for such offenses were determinations that varied from people to people, and they derived their authority solely from human positive law.47 This part of Aquinas’s argument might remind us of the earlier doctrines of permissive natural law, and indeed his treatment of natural law left open a broader field of conduct to human discretion than his initial comments might suggest. However, Aquinas did not follow out all the implications of his own argument at this point. There was a further problem. It was not only that the primary principles of natural law—“Act reasonably.” “Do not harm others.”—were indeterminate, requiring secondary precepts to give them a more specific content. The secondary precepts themselves—“You shall not steal.” “You shall not kill.”—also required further specification to give them a determinate meaning. And the range of such specifications could be very broad. For instance, in considering Aquinas’s phi45. ST 1.2ae.95.2 ad 3. 46. ST 1.2ae.95.2, “Sed sciendum est quod a lege naturali dupliciter potest aliquid derivari, uno modo sicut conclusiones ex principiis, alio modo sicut determinationes quaedam aliquorum communium.” 47. Ibid., “lex naturae habet quod ille qui peccat puniatur, sed quod tali poena vel tali puniatur, hoc est quaedam determinatio legis naturae.”

84  Thirteenth-Century Theologians losophy of positive law, James Murphy discussed the various meanings that can be attached to the idea of theft. Law codes commonly prohibit this offense, but what they define as theft varies from time to time and from place to place. “Is gleaning theft?” Murphy asked. “Hunting or poaching on others’ lands? Nonriparian water rights? Stealing through stress of need? Copying books or videos?”48 One could go on and on. Proudhon held that property was theft. Modern libertarians hold that taxing property is theft. Aquinas himself discussed a variety of ways of taking that might have been considered theft but that were not so considered in Roman law.49 The natural law prohibiting theft left many choices open to the legislators of any given society. The same indeterminacy characterizes the natural law precept against murder, “You shall not kill.” The law takes on a determinate meaning only from the way in which homicide is defined in human legislation, and such determinations vary widely from state to state and country to country.50 Aquinas himself, commenting on the precept “You shall not kill,” acknowledged that some homicide could be licit and concluded that killing another was forbidden only insofar as it was indebitum, unjustified.51 But, he noted, what was considered just or unjust could vary. “Justice must indeed always be observed but the determination of what is just by human or divine ordinance has to vary according to the different states of mankind.”52 The precepts of natural law were immutable as regards the fundamental principles of justice they expressed. Murder and theft were always wrong, but what precisely constituted murder or theft was left to the discretion of particular peoples. The argument still leaves us with a difficulty. According to Aqui48. J. B. Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence (New Haven: Yale University Press, 2005), 95. 49. ST 2.2ae.66.5. 50. Murphy, Positive Law, 112, quoted the law of the state of Delaware. It specifies six different kinds of culpable homicide, including capital murder, and in that last category it lists six different offenses that constitute that particular crime. See also L. L. Weinreb, Natural Law and Justice (Cambridge, Mass.: Harvard University Press, 1987), 113–15, criticizing Finnis’s treatment of homicide. 51. ST 1.2ae.100.8 ad 3. 52. ST 1.2ae.104.3 ad 1.

Thomas Aquinas  85 nas, the determinations of human positive law acquired their force solely from the fact of their enactment. To illustrate this, he quoted a passage of the Digest declaring that there were some laws for which no reason could be given, and also a text of Aristotle stating that legal justice concerned matters that were intrinsically indifferent. He further acknowledged that these assertions were true in relation to those human laws that were only determinations of natural law.53 The difficulty here is that the argument seems to leave a whole body of law open to mere random or arbitrary decision.54 (Cicero had pointed out centuries earlier that if various alternatives were really indifferent there could be no rational ground for choosing among them.) And yet Aquinas had insisted over and over again—and he repeated the assertion in the text we are presently considering—that all just law must be grounded on reason.55 Law was, by definition, “An ordinance of reason for the common good.” And natural law especially was a law of reason. But, what principles could lead humans to rational determinations of law when natural law provided no certain guidance? Aquinas solved the problem by appealing to the virtue of prudence. For such determinations the judgment of experienced and prudent persons is like a set of principles insofar as they readily see what is most fitting in particular decisions.56

A little further on, Aquinas wrote that the end of law was to promote what was useful for humans.57 He understood that sound decisions about the best course of action in varying contingent circumstances often could not be arrived at by abstract reasoning from some principle of natural law, but they could be made in a rational fashion through practical reasoning guided by the virtue of prudence. 53. ST 1.2ae.95.2 and 1.2ae.95.2 obj. 1 and ad 1, obj.4 and ad 4. 54. On apparently arbitrary choice among things indifferent in Aquinas’s treatment of positive law see Murphy, Positive Law, 102–13. 55. ST 1.2ae.95.3. At ST 1.2ae.90.2 ad 3 Aquinas considered the apparently absolutist principle of Roman law, “The will of the Prince has the force of law.” He explained that this was true only when the prince’s will was ruled by reason. 56. ST 1.2ae.95.2 ad 4. 57. ST 1.2ae.95.3, “Finis autem humanae legis est utilitas hominum” (citing Digest, 1.3.25).

86  Thirteenth-Century Theologians At this point Aquinas’s discourses on law and on virtue converge. In discussing prudence as a virtue Aquinas noted that the judgments of prudence came into play concerning contingent matters, where a right course of action was not predetermined. Citing Aristotle again, he wrote that such judgments dealt with “things that might be otherwise.” Similarly, in the discourse on law, prudence shaped decisions where natural law gave no fixed rule of action. Aquinas also remarked, in considering the virtue of prudence, that there was an infinite diversity of such contingent particular cases.58 So, whether we consider acts of free will in pursuing an individual’s own purposes or in the shaping of legislation for a whole society, we come back finally to human choices freely made and guided by prudence or practical reasoning. The outcome of all Aquinas’s reflections on diversity of peoples and indeterminacy of natural law was a system of law that left wide areas of conduct open to human free choice. Within the very broad moral contours of the natural law, individuals were free to shape their own lives and societies to enact such laws as they saw fit. But all this was achieved without any specific appeal to the idea of permissive natural law.

Persisting Problems In a later age, in the seventeenth and eighteenth centuries, a controversy arose about the necessity or even possibility of positing the existence of a law of permission within the realm of natural law (Selden strongly defended the idea of such a permissive law. Pufendorf resisted it.) But, at the time when Aquinas wrote, the idea of a permissive natural law was well established and had not yet become a matter of controversy. The Dominican master too did not overtly contest the doctrine; he acknowledged in principle that laws could be permissive; but he simply ignored this aspect of law when he came to formulate his own teaching on natural law, and chose to present an alternative doctrine. 58. ST 2.2ae.49.3.

Thomas Aquinas  87 Both approaches to natural law—to accept or to deny the notion that law can be permissive—offer problems of their own. In the work of Aquinas the thought is of course coherent but still there are tensions within it that are not fully explained. The author presented an extremely influential doctrine of natural law and yet he seems to minimize the role of this law in the actual conduct of everyday life. The argument reaches its conclusions by persistently underspecifying the concrete content of natural law. Aquinas wrote often of human freedom of choice amid the contingencies of human affairs; but he had to explain this as a kind of failing or deficiency of natural law (tanto magis invenitur deficere). It might seem that the canonistic language that recognized a realm of permissiveness as an essential feature of the natural law itself could have provided a more simple and direct way to address such issues. But Aquinas did not choose to avail himself of this language. It is not clear why this was so. Perhaps it was because the notion of a permissive natural law had been developed in the preceding century primarily as a juridical concept, most fully worked out by the canonists before its acceptance in later theological writings. Aquinas was quite willing to cite texts from the body of Roman or canon law as authorities to be accepted or rebutted. He could hardly avoid doing so in a “Treatise on Law.” But the treatise on law was embedded in a massive work of theology, and Aquinas had a marked aversion to using legalistic arguments in discussing theological issues. In the Summa theologiae he complained about “ignorant jurists” and in another work he wrote that it was “unsuitable and ridiculous” for doctors of sacred theology to introduce the glosses of the jurists into their works.59 Aquinas had available to him a wide variety of Christian writings and also, in treating teleology and eudemonia, the philosophical language of Aristotle. He evidently found it preferable to express his own thought on natural law in the same terms. It may be that Aquinas did not think it fitting to include the idea of a permissive natural law in a teleological argument based on hu59. ST 2.2ae.88.11, Contra doctrinam retrehantium, Opera, vol. 3, 27.13. One might add that there was a persistent rivalry between the schools of theology and of canon law at Paris.

88  Thirteenth-Century Theologians man inclinations. The inclinations themselves did not define detailed rules of conduct as we noted, but the whole point of Aquinas’s argument was to show how the precepts of a natural law derived from the inclinations could provide a sure guide to humans in their pursuit of a good life leading to the final end of felicity. He apparently saw no reason or need to complicate the argument at that point by introducing the idea of permissive law or of indifferent acts that might or might not be permitted depending on the intention of the individual concerned. One must bear in mind also that, although Aquinas’s doctrine of natural law would attract such a mountain of later comment, his own presentation of it in the Summa theologiae was very brief and compressed. He went on to write much more about the positive law of the Old Testament. Finally, in considering what was included and what was omitted in an author’s work, we must allow for an element of sheer contingency. We may reasonably suppose that William of Ockham would never have written about permissive forms of natural law if he had not been caught up in a struggle with the contemporary pope, and that Richard Hooker would not have done so if he had not become involved in the adiaphora controversies of the Reformation. Aquinas had his share of controversies too but they did not lead him to engage with this particular topic. Whatever the reason, Aquinas avoided using the language of permissive natural law even when it might have served his argument well. This is especially evident, to take a final example, when he considered the old problem of common ownership and individual property. The issue arose in the course of the “Treatise on Law” at a point where Aquinas discussed the immutability of natural law.60 He chose to cite as his primary authority for this doctrine some words of Gratian taken from the Decretum that had often served as a starting point for canonistic discussions—“Natural law began with the origin of the rational creature and remains immutable.”61 Aquinas also posed one 60. 1.2ae.94.5. In an earlier discussion at 1.98.1 ad 3, Aquinas presented the usual argument that common property was fitting in the age of innocence but not among fallen humanity. But he did not discuss property in relation to natural law there. 61. Dist.5 pre c.1.

Thomas Aquinas  89 of the common canonistic objections to this dictum. “Isidore says that common ownership of property and liberty pertain to natural law, but we see that these things have been changed by human law.”62 Aquinas seems to have set up a framework of texts designed to introduce the common canonistic solution to the problem—that natural law included not only commands and prohibitions but also permissions, that permissive natural law allowed for both common property and private ownership, and that both were therefore in accord with natural law. But Aquinas proceeded in a quite different fashion. He did not derive a doctrine of private property from the canonists’ interpretation of the texts he had cited, nor from the preceding argument of his own discourse on natural law which had led up to this issue. Instead he introduced, as it were out of nowhere, a different meaning of nature and the law of nature. His argument ran like this: Something is said to be according to natural law in two ways, in one way because nature inclines us so, as for instance that we should not do injury to another.63

This was how Aquinas had consistently understood natural law up to this point. But next he introduced another meaning with a rather awkward negative formulation. [I]n another way because nature does not introduce the contrary, so that we might say that it is according to natural law for humans to be naked because nature does not give us clothes; rather they come from artifice.64

In Aquinas’s classic definition, natural law was “nothing other than” the sharing of eternal law in the rational creature. Now we are told that to go naked pertains to natural law. And this is the kind of natural law that Aquinas chose as the basis of his discussion on property ownership. But the distinction between nature and artifice on which he relied led on to a sudden disjunction between natural law and reason. 62. ST 1.2ae.94.5 obj.3, referring to Dist.1 c.7 of the Decretum. 63. ST 1.2ae.94.5 ad 3, “uno modo, quia ad hoc natura inclinat, sicut non esse injuriam alteri faciendam.” 64. Ibid., “alia modo quia natura non inducit contrarium, sicut possemus dicere quod hominem esse nudum est de jure naturali, quia natura non dedit ei vestitum, sed ars invenit.”

90  Thirteenth-Century Theologians It is in this way that common property and liberty are said to pertain to natural law, namely because private property and servitude were not introduced by nature but by human reason as being useful for human life; and so the law of nature was not changed by this except by an addition.65

Throughout the whole preceding argument leading up to this Quaestio on immutability, natural law had been treated as a dictate of reason. “The first rule of reason is natural law,” Aquinas wrote.66 This was the foundation of his whole philosophy of law. But at this point he seems to depart from it to tell us that private property was introduced “not by nature but by reason.” Earlier writers had been able to avoid such problems. Their doctrine of a rational natural law that was also permissive allowed humans to choose either common ownership or individual property. They could then determine what was most “useful for human life” by consequentialist reasoning. Their argument seems consistent with much that Aquinas wrote on natural law elsewhere but he did not choose to adopt it here.67 Aquinas’s argument begins by suggesting that the institution of private property was something “contrary” to natural law (“nature does not introduce the contrary”) and ends by asserting that the institution did not change natural law “except by addition.” The apparent inconsistency in Aquinas’s argument is to be sure mainly a matter of words; it relies on an equivocal use of the words “nature” and “natural.” In one sense of the term it is natural for humans to be rational; in another sense it is natural for them to be naked. It would seem important, though, not to confuse the two 65. Ibid., “distinctio possessionum et servitus non sunt inductae a natura, sed per homninum rationem ad utilitatem humanae vitae; et sic etiam in hoc lex naturae non est mutata nisi per additionem.” 66. ST 1.2ae.95.2, “Rationis autem prima regula est lex naturae.” 67. In a later discussion (ST 2.2ae.66.2) Aquinas gave a string of consequentialist arguments in favor of private property. Property would be better managed by individual owners; in a system of common property there could be confusion over responsibilities; common property could readily give rise to disputes. Aquinas also introduced here the doctrine of the canonists, emphasized by Huguccio, that by natural law property was common in the sense that it must be shared with others in time of necessity; he did not, however, cite any canonistic text in support of the argument.

Thomas Aquinas  91 meanings. Some early modern theorists of natural law, Pufendorf for instance, saw the need for a careful explanation of the distinction between natural law understood as referring to an imaginary state of humankind before any works of human artifice had been introduced, and natural law as referring to the rational nature of man that led to the institution of property and political societies. Aquinas seems to just jump from one meaning to the other. Of course the distinction between nature and artifice was an ancient one and quite familiar to Aquinas and his contemporaries. But its introduction here seems an incongruity, interrupting the flow of the whole preceding discourse about the nature of natural law as a law of reason. The argument seems unnecessarily contorted, especially since a simpler explanation of the problem at hand was readily available in the idea of permissive natural law. John Simmons once wrote that at times Aquinas’s teaching on natural law seems to cry out for a doctrine of natural rights to complement it—something that Aquinas did not provide.68 One might say the same concerning the doctrine of permissive natural law.69 Aquinas’s reluctance to include a law of permission in his treatment of natural law did not set a pattern for the future. Later thinkers continued to develop the idea of permissive natural law in different ways and to deploy it for a variety of reasons. Also, as mentioned at the outset, the teaching of Aquinas himself had a significant influence on the future development of the doctrine. Centuries later Suarez would take up the text where Aquinas acknowledged that, in principle, law could be permissive and would use it as a starting point for his own very influential treatment of permissive natural law. 68. A. J. Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1996), 98n. 69. One could also say (without intending any pun on the phrase domini canes) that this was an outstanding case where “the dog did not bark.”

PA RT I II

Fourteenth-Century Variations

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 elect Ludwig of Bavaria. (The pope refused to confirm Ludwig’s election as emperor.) A principal purpose of the following chapters, therefore, is to show how such issues could have stimulated new ways of thinking about permissive

 

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94  Fourteenth-Century Variations natural law. However, as an academic jurist, teaching at Bologna, Johannes Andreae did not become involved in these disputes; his role was to take up in a new way some traditional problems of the canonists concerning the relationship between natural law and positive human law.

5

William of Ockham

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.

Ideas and Context Ockham has long been known as an outstanding proponent of a nominalist and voluntarist philosophy, one who emphasized both the free will of humans and the omnipotent will of God. In his theological writings Ockham taught that the whole world as we know it, 1. Standard works on Ockham’s social and political thought include J. Miethke, Ockham’s Weg zur Sozial- philosophie (Berlin: De Gruyter, 1969) and A. S. McGrade, The Political Thought of William of Ockham: Personal and Institutional Principles (Cambridge: Cambridge University Press, 1974). For a good, more recent overview with a discussion of the modern literature and extensive bibliography see T. Shogimen, Ockham and Political Discourse in the Later Middle Ages (Cambridge: Cambridge University Press, 2007). On Shogimen’s approach to Ockham’s work see below n.60.

 

95

96  Fourteenth-Century Variations including the world of moral values, is contingent. It exists as it does simply because God wills it so. God could have created some other universe in which it would be virtuous to lie or steal or commit adultery.2 But all this is only one side of Ockham’s thought. He also held that it was possible to construct a “non-positive moral science” that was based, not on the will of a superior, but on human experience and human reason. In this world that God had actually chosen to make, human reason could show us how God wanted us to live.3 Accordingly, Ockham held that the natural law of reason was congruent with the divinely revealed law of scripture.4 This two-sidedness of Ockham’s speculative thought has led to different appraisals of the arguments presented in his later political writings. Among the scholars who see a meaningful connection between the two areas of his work—and this is itself a matter of dispute—some insist on Ockham’s voluntarism, others on his appeals to right reason.5 But the two ways of thinking need not be seen as mutually exclusive. Both strains of thought had been present in Christian philosophy ever since the days of Augustine. And the doctrine of rational natural law that Ockham developed in his later writings left open a space for the exercise of human free choice. 2. Guillelmi de Ockham opera philosophica et theologica, edited by G. Gál, et al., 17 vols. (St. Bonaventure, N.Y.: Franciscan Institute, 1967–88). Opera theologica, vol. 5, 352, “odium, furari, adulterari . . . etiam meritorie possunt fieri a viatore si caderent sub praecepto divino.” For introductions to Ockham’s theological writings and the very extensive modern literature on them see M. Adams, William Ockham, 2 vols. (Notre Dame: University of Notre Dame Press, 1987) and The Cambridge Companion to Ockham, edited by V. S. Spade (Cambridge: Cambridge University Press, 1999). 3. Opera theologica, vol. 9, 177. 4. See below, n.23. 5. Ockham’s nominalist and voluntarist philosophy was emphasized especially by M. Villey, La formation de la pensée juridique moderne, 4th ed. (Paris: Éditions Montchrestien, 1975) and G. de Lagarde, La naissance de l’esprit laïque au déclin du moyen âge, 6 vols. (Paris: Éditions Béatrice, 1934–36); 2nd ed., 5 vols. (Paris: E. Nauwelaerts, 1956–70). L Freppert provides a more balanced account in The Basis of Morality According to William Ockham (Chicago: Franciscan Herald Press, 1988). Ockham’s persistent appeal to right reason in his treatment of natural law was emphasized in B. Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law (Grand Rapids: Eerdmans Publishing Company, 1997). For another account of Ockham’s teaching on rights see A. Brett, Liberty, Right and Nature: The Language of Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997).

William of Ockham  97 In any case, while it is useful to have some awareness of Ockham’s earlier speculative philosophy in order to understand the mindset that he brought to the Franciscan dispute with the pope, the actual content of those later writings and the arguments he advanced in them were shaped almost entirely by the exigencies of the controversy itself. One can best present his views therefore by situating them in the context of the dispute. At the heart of the Franciscan case was a claim that the friars had renounced not only all ownership of property, singly and in common, but also all rights to property including even a ius utendi, a right of using, while retaining for themselves only a “simple use of fact,” devoid of any worldly right. (This was a way of life radically different from that of the existing monastic orders who all owned property in common.) The friars also claimed that, in living like this, they were faithfully imitating the evangelical way of life exemplified by Jesus and his apostles.6 In 1279 Pope Nicholas III approved all of this in the bull Exiit which became a sort of Magna Carta of the Franciscan order. But a generation after Exiit was promulgated, Pope John XXII decided, for reasons that remain obscure, to challenge the whole theory and practice of Franciscan poverty that his predecessor had approved. In the bull Cum inter (1323) John declared that henceforth it would be heretical to maintain that Christ and the apostles had nothing singly or in common or that they had no right to the things that they actually had. In two other bulls—Ad conditorem (1322) and Quia quorundam (1324)—the pope attacked the whole Franciscan position based on the argument about a “simple use of fact.” It could not apply, for instance, to things consumed in use, the pope argued; at the least a person must own the food he ate while in the act of consuming it. Michael of Cesena, the minister-general of the Franciscan Order, protested vigorously against these decrees but the pope proved obdurate. Finally, in 1328, Michael fled from the papal curia with 6. For an overall view of the dispute over Franciscan poverty see M. D. Lambert, Franciscan Poverty (St. Bonaventure, N.Y.: Franciscan Institute, 1998). On Ockham’s involvement in the dispute see M. Damiata, Guglielmo d’Ockham: Povertà e potere, 2 vols. (Florence: Studi Francescani, 1978–79).

98  Fourteenth-Century Variations a group of supporters, including William of Ockham, and eventually took refuge with Ludwig of Bavaria at Munich. Ockham would spend the rest of his life in exile there. Because much of the dispute was about juristic concepts such as ius, usus, dominium, possessio, and their significance in the life of the church, both sides had to appeal to legal texts, especially canonistic ones, in support of their arguments, often the same texts that we encountered earlier in discussions of permissive law. Ockham was a theologian of course, not a canonist, but his work was liberally sprinkled with references to the Decretum and its Ordinary Gloss. Like Aquinas, perhaps even more than Aquinas, he complained about canonists who meddled in theological questions, including among them John XXII who was himself a canonist by training. But Ockham was quite willing to put canonistic texts at the service of his own superior science of theology, and the Decretum, on which he often relied for source material, provided extensive excerpts from the church fathers, including Augustine, Gregory the Great, and Isidore of Seville, that Ockham could adapt for his own purposes. This situation led to a renewed interest in a number of themes that had been treated earlier in the works of the twelfth-century Decretists—their argument that according to natural law all things were common in time of need, their reflections on the interplay of natural law and positive human law, and their teaching that natural law could be permissive as well as preceptive. Some of this was already apparent in the first exchanges between John XXII and Michael of Cesena. When Michael and his adherents departed from Avignon, the pope promptly excommunicated them. Michael replied with a long appeal against the papal sentence in the course of which he returned to a defense of the Franciscans’ “use of fact.” Citing Dist.8 c.1 of the Decretum he wrote, “Natural law differs from custom and statute because by natural law all things are common. . . . And certainly in the law of nature there was simple use of fact common to all as regards the things necessary to sustain life, and there was no right of using such as was introduced later by human law.”7 A 7. Appellatio in forma maiore in Nicolaus Minorita: Chronica: A Source Book, edited by G. Gál and D. Flood (St. Bonaventure, N.Y.: Franciscan Institute, 1996), 263–

William of Ockham  99 right to use was one thing, Michael continued, a mere license or permission to use was something different. It did not confer a right. A slave had a license to use the things of his master but he did not have a right to them, and it was the same with a monk who used things with the permission of a superior. Then Michael’s argument moved from the special permission of an owner to a general permission of natural law by taking up the teachings about fas that had earlier evoked complex discussions among the Decretists. So too it is said that one has a license to pass through another’s field as at Dist.1 c.1. Again, by divine law it is fas, that is, permission is conceded to anyone, to eat grapes in the vineyard of a neighbor as at Deuteronomy 23.24, and yet the one having such a permission does not have a civil right of using for if he had such a right he would have a legal action as is noted at the same Dist.1 c.1 in the gloss.8

Pope John XXII was unimpressed. He insisted that a permission to use the goods of another always conferred a right to use. In response to Michael’s appeal he reiterated and expanded his own views in yet another bull, Quia vir reprobus. At this point William of Ockham entered the fray. In the ensuing war of words, problems concerning permissive law—divine, natural, and human—almost inevitably arose. No one was arguing that any law commanded Christians to adopt the Franciscan way of absolute poverty and renunciation of rights. The question at issue was whether such a life was permissible within an established church that owned much property and was fortified with many rights and privileges. Accordingly, in defending the Franciscan position, Ockham appealed often to the idea of a permissive divine and natural law and deployed the idea in a variety of ways. In the first phase of his argument Ockham was primarily concerned to show how natural law could justify the Franciscans’ doctrine of absolute poverty; then in his later writings he turned to a defense of the claims of his patron, Ludwig of Bavaria, and to a series of attacks on the views of the contemporary popes, John XXII and Benedict XII. In 64. The documents of the controversy, including the papal bulls and various responses to them, are conveniently assembled in this work. 8. Ibid., 264.

100  Fourteenth-Century Variations these later works Ockham offered a strong defense of human freedom—freedom from the alleged tyranny of the popes—grounded on his own distinctive doctrine of a natural law that included both preceptive and permissive elements. I will consider these aspects of his work in turn.

Permissive law and Property Ockham’s first major contribution to the Franciscan controversy was the Opus nonaginta dierum, a line by line, word for word, commentary on John XXII’s bull Quia vir reprobus. In that decree the pope commented again on the old argument about fas and permissive law. Isidore divided law into divine and human and gave different names to these laws, saying that fas is divine law, ius is human law. And, wanting to give an example of each, he added, To go through another’s field is fas, that is, it is permitted by divine law. It is not ius, that is, it is not permitted by human law.9

These last words were among the few that Ockham did not choose to contest. He indicated rather that they supported his own position. And, indeed the pope, unwary for once, had conceded a part of the argument that Ockham would develop. To pass through another’s field was permitted by divine law as the pope had observed and yet, as the text of Isidore indicated, it was not a legal right. But, Ockham argued, this really proved the Franciscan point that there could be licit use without a right of using. “To pass through another’s field is not a right and yet it is permitted (licitum) . . . and by the same argument an act of using can be permitted without a right of using.”10 So far so good. The text of Isidore could be adduced to prove that, 9. Nicolaus Minorita, 582. The whole text of Quia vir reprobus is also printed with the text of Ockham’s Opus nonaginta dierum (henceforth OND) in Guillelmi de Ockham opera politica, edited by H. S. Offler, et al, vols. 1–3 (Manchester: Manchester University Press, 1957–74), vol. 4 (Oxford: Oxford University Press, 1997). The OND is included in vols. 1–2, 292–858. 10. OND, 581, “Quia transire per agrum alienum non est ius, et tamen est licitum . . . et eadem ratione potest actus utendi esse licitus sine ius utendi.” Ockham meant that there was not a civil right. He went on to explain that the friars did have a natural right in using things.

William of Ockham  101 in principle, some use could be separated from a right of using.11 But it did so only by noting that, although such use was permitted by divine law, it was not permitted by human law; and this did not really justify the doctrine of Franciscan poverty that Ockham was defending. He was not arguing that the friars habitually made use of things in a way originally permitted by natural law but now forbidden in his own time by human law. That would have turned the friars into a band of outlaws. Ockham needed to show that the Franciscan way of life was permissible according to both authorities. John XXII maintained that private property had been divinely instituted at the very beginning of the human race when God gave dominion over the whole world to Adam.12 Ockham vigorously defended the more common view that it had been established later by human ordinance.13 He had to prove, therefore, that to use things without any juridical right to them was permissible in a world where human law recognized established property rights. A starting point was provided by the canonistic teaching that, in case of extreme necessity, natural law permitted a person to use the goods of another without incurring the guilt of theft. This doctrine was drawn into the Franciscan dispute when Nicholas III included it in his decree Exiit. While defending the Franciscan claim to live in absolute poverty the pope explained that, by adopting such a precarious way of life, the friars did not tempt providence or risk starvation because in case of extreme need they were permitted to use the “right of heaven” (ius poli), the natural right to the necessities of life that belonged to everyone.14 Because the pope used the words 11. Ockham defined the right of using that the friars had renounced in OND, 559, “Ius istud utendi non est aliud quam quaedam licita potestas . . . qua sine culpa et absque causa rationabili privari non debet invitus et si privatus fuerit, privantem iniuste poterit in iudicio convenire.” Ockham’s use of the phrase licita potestas was seen as revolutionary by M. Villey. See his La formation, 247–50, 261– 62. But in fact the phrase was not controversial. It was, for example, used repeatedly by Hervaeus Natalis, a Dominican supporter of John XXII. See Tierney, Idea of Natural Rights, 104–8. 12. OND, 430. 13. OND, 657. 14. Liber sextus in Corpus iuris canonici, vol. 2 (Leipzig: Tauchnitz, 1879), Sext. 5.12.3, col. 1113, “nec fratribus iure poli in extremae necessitatis articulo ad providendum sustentationi naturae via . . . praecluditur.”

102  Fourteenth-Century Variations ius poli (taken from a text of Augustine) instead of the more usual ius naturale the phrase recurred often in the later disputes. Ockham used the two terms indifferently.15 Ockham quoted the teaching of the pope but it still left him with the task of explaining how permissive natural law could justify the friars’ use of things in their normal everyday life without any legal claim to them and when they were not in extreme need. He accordingly wrote that Nicholas III had not actually said that there could be no use by natural law outside the case of necessity.16 He went on to describe how such use of things could come about, arguing that when the Franciscans used property with a revocable license or permission of a benefactor—which, they claimed, was the normal situation in their day-to-day use of things—they acquired only a “bare use of fact” without any kind of legal right but also without violating any human or natural law. The argument required an ingenious reworking of the old Decretist teaching on permissive law and property. Citing Dist.1 c.7 of the Decretum, the oft quoted text of Isidore defining the term ius naturale, Ockham wrote that by natural law all things were common. Anyone could use anything. This use could never be wholly renounced since it was necessary for subsistence.17 Its exercise had been limited and impeded by human law, however, in that, once private property was instituted, a person could not rightfully use the property of another; also the use of things could be limited voluntarily as, for instance, by taking a vow to abstain from meat.18 But, Ockham continued, by the “law of heaven,” anyone was permitted to use anything that was not prohibited to him by natural law or any other law or by his own act. And, when the only impediment to the use of a thing was that it was 15. Commenting on Nicholas’s decree, Ockham wrote “secundum eum habent ius utendi naturale, cum dicat ipsis iure poli . . . viam non esse praeclusam.” See OND, 556. 16. OND, 575, “Nicolaus dicat quod licet omnibus in extremae necessitatis articulo constitutis uti rebus necessariis . . . non tamen negat aliquos posse in aliis casibus uti rebus iure poli.” 17. OND, 577, “. . . uti rebus temporalibus pertinet ad ius naturae, cui nemo licite renunciare potest.” 18. OND, 578.

William of Ockham  103 prohibited by human law because the thing belonged to someone else, then the permission of the owner was sufficient to remove the impediment. The owner who granted a license to a group of Franciscans did not actually confer any right on them. He could not confer a divine right or a natural right and, according to Ockham, he did not confer a legal right since he could revoke the permission whenever he wished. The owner’s permission simply removed the impediment of human law that had inhibited the exercise of the preexisting permission of natural law. Once the license was granted, and not before, the grantee could licitly use by natural right the things that were conceded.19 In this case the specific permission of the owner unlocked, as it were, the general permission of natural law.20 In the language of Hohfeld’s modern classification of rights, the right that Ockham claimed for the Franciscans was a “privilege” or “liberty right.” The friars were “at liberty” to use the goods permitted to them, but they had no legal claim against others. In discussing rights as liberties, Hohfeld quoted approvingly the view that “a license is merely a permission to do an act which without such permission would amount to a trespass.” That was precisely what Ockham was asserting.21

Natural Law and Imperial Power: The Three Modes The understanding of natural law as including both preceptive and permissive elements persisted when the focus of Ockham’s work 19. Ibid., “Per permissionem autem, et consequens per licentiam, solummodo removetur impedimentum prohibens habentem ius naturale utendi, ne exeat in actu utendi, et nullum ius novum sibi confertur. . . . Tunc tamen primo, quando est licentiatus seu permissus, utitur licite iure poli tali re. . . . Fratres Minores . . . iure poli et non iure fori utuntur, quantumcunque sint extra articulum necessitatis extremae.” 20. Ibid., “modo est amotum prohibens ius naturale ne exiret in actum utendi.” 21. W. N. Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1923), 50. (Italics in original.) Hohfeld classified rights as claims, powers, privileges or liberties, and immunities. Ockham referred to all these types of rights without, however, analyzing his different usages of the word ius. His definition of ius as a licit power for which one can sue in court referred to a right as a power and a claim. The text quoted above referred to a privilege or liberty right.

104  Fourteenth-Century Variations shifted from the discussion of Franciscan poverty to a defense of the claims of Ludwig of Bavaria in his dispute with the pope. Ockham’s treatment of this issue led him to present a formal definition of the different types or modes of natural law in a section of his Dialogus written a few years after the Opus nonaginta dierum, probably in the years 1340–41. Ockham’s argument was introduced in order to prove that it was possible for an emperor to acquire a right to appoint a pope. The Master in the Dialogus argued here that the Roman people possessed the right to elect their pope by divine law but that, nevertheless, they could renounce their right, perhaps to the pope himself, who in turn might relinquish it to an emperor. (Ludwig did in fact appoint an antipope, Nicholas V, and presented him to the Roman people for their approval.) The Student objected that the Romans did not have their right to elect from any divine or human law but that the right derived from the pope. The Master responded that the Romans did have their right from divine law if divine law were taken to include the whole of natural law—and then Ockham launched at once into his own original account of the nature of natural law. He later explained that his view of natural law as divine could be defended both because all law came ultimately from God and because all natural law was contained implicitly or explicitly in scripture.22 But, in his own detailed presentation of the different kinds of natural law, Ockham did not rely much on scripture but rather on human reason supplemented by some standard texts of the Decretum. Ockham distinguished three modes or levels of natural law. In the first mode, Natural law is said to be what is in conformity with a natural reason that never fails, as for instance, “You shall not commit adultery. You shall not lie,” and suchlike things. . . . Natural law in this first mode is immutable and invariable and non-dispensable as at Dist. 5 pre c.1 and Dist. 6 post c.3.23 The passages cited below concerning rights that the pope could not violate treated rights as immunities. 22. H. S. Offler, “The Three Modes of Natural Law in Ockham. A Revision of the Text,” Franciscan Studies 37 (1977): 212. Offler provides a critical edition of the defective text printed in M. Goldast, Monarchia S. Romani imperii (Frankfurt: Conrad Biermann, 1614), 3.2.3.6, 932–35. 23. “Three Modes,” 212, “Uno modo dicitur ius naturale illud, quod est con-

William of Ockham  105 Here the natural law of reason was identified with moral precepts such as those found in the Decalogue; it was a mandatory, not a permissive form of law. There was nothing new so far. Ockham’s definition echoed a common understanding of natural law as a body of permanent moral principles. In his second definition, though, Ockham introduced the idea of a natural law that was permissive in the sense that it could be changed by human initiative. In another way natural law is said to be what would be observed by those who use natural equity alone without any human custom or statute. This is called natural because its contrary is contrary to the state of nature as first instituted. . . . In this way and not in the first way all things are common by natural law.24

The rather convoluted language may remind us of Aquinas’s text on the origin of property, but Ockham was making a different argument. Ockham’s Mode 2 defined a kind of natural law that permitted its own change. He went on to develop further a line of argument that we encountered in numerous Decretist glosses. According to Isidore (Dist.1 c.7) common possession of all things and universal liberty pertained to natural law. But, Ockham noted, these provisions could not have been mandated by natural law taken in his first sense of the term because then they could never have been changed whereas, in fact, they had been changed when private property and servitude were introduced. They were in accord rather with natural law in the second sense, a law that was not mandatory nor immutable but permissive. “Natural law understood in (the second) sense of the term is not immutable but it is permissible to enact the contrary so that the contrary can be done by law.”25 Some of the first modern commentators on Ockham’s text were troubled by the idea of a natural law that could be changed by mere forme rationi naturali, que in nullo casu fallit, sicut est ‘non mechaberis,’ ‘non mentieris’ et huiusmodi.” 24. Ibid., “Aliter dicitur ius naturale, quod servandum est ab illis qui sola equitate naturali absque omni consuetudine et constitutione humana utuntur. Quod dicitur naturale quia contrarium est contra statum nature institute . . . Isto modo et non primo modo ex iure naturali omnia sunt communia.” 25. Ibid, 213, “ius naturale uno modo accepto vocabulo non est immutabile, immo licet contrarium statuere, ut iure fiat contrarium.”

106  Fourteenth-Century Variations human choice. They might have been less concerned if they had understood that the author was relying on a well-established canonistic tradition of permissive natural law. Ockham’s third definition of natural law was his most original one: In a third mode natural law is what is gathered by natural reason from the law of nations or some other law or from some divine or human act, unless the contrary is enacted by those concerned. This can be called natural law by supposition.26

The closest parallel to this definition in the previous literature is the text of Alanus on “relative natural law” quoted earlier. There is no evidence, however, that Ockham knew this text though the work of Alanus was still cited by canonists at this time and another of the canonist’s texts had been drawn into the dispute between John XXII and Michael of Cesena at an earlier stage of the controversy.27 Ockham himself just continued to rely on the text of Isidore at Dist.1 c.7, quoting from it the words “the return of something deposited” and “the repelling of force by force.” Supposing that private property had been instituted, evident reason required that a deposit should be returned. Supposing that a person were attacked, evident reason showed that it would be permissible to repel force with force. And, Ockham continued, supposing that a ruler were to be instituted, evident reason indicated that he should be elected by those he was to rule over. With this third mode of natural law we move from the immutable moral principles of the first mode, and the equitable law of the second mode to the everyday experiences of ordinary imperfect humans. This mode of natural law was exemplified in past human laws and acts. It was a law of contingencies, a natural law that found expression in the reasoned responses of people to changing situations. This kind of natural law could change as different contingencies 26. Ibid., “Tertia modo dicitur ius naturale illud, quod ex iure gentium vel alio aut ex aliquo facto divino vel humano evidenti ratione colligitur, nisi de consensu illorum, quorum interest, contrarium statuatur. Quod poterit vocari ius naturale ex suppositione.” For another formulation of the idea of a “conditional” natural law see Dialogus, 3.2.1.10 (Goldast, Monarchia, 878). 27. See above, 28, and see Nicolaus Minorita: Chronica, 415. The text of Jesselin of Cassanges criticized there by Michael of Cesena was taken from the Rosarium of Guido de Baysio who in turn was quoting Alanus.

William of Ockham  107 arose and evoked new responses. It was a kind of conditional law, permissive in that it could be changed by consent of the people concerned. In his earlier theological writings Ockham had maintained that a nonpositive moral science could be constructed on the basis of reason and experience; now he gives us a natural law based on reasoned responses to the varied experiences that humans encounter. After presenting his third mode of natural law Ockham pressed on to his conclusion. Supposing that a bishop of Rome was to be instituted, then the Romans had a natural right to elect him unless they decided otherwise; and in many cases, Ockham maintained, such a right could be yielded and transferred to another. And so the argument reached the end to which it had been directed from the beginning. The Romans could renounce their right of election to the pope himself and he in turn could transfer it to the emperor. Ockham held that this had actually happened in the past, citing, in support of his claim, texts of the Decretum that referred to grants made to emperors in earlier times by Popes Adrian I and Leo VIII. In Ockham’s argument, the right of the Roman people to elect the pope and also to transfer that right was based on both of his last two modes of natural law. The right to elect was based on the third mode of suppositious natural law because it rested on the supposition that a ruler was to be instituted. Ockham explained that the right was also derived from the second mode at a point where the Student asked how the Romans could transfer their right when it came to them from divine law and no one was permitted to go against that law. The Master replied that the last point was true only of things expressly commanded or forbidden by divine law; when divine law was understood as natural law in the second mode it was permitted to go against it for rational cause. [F]or rational cause it is permitted to go against natural law in the second mode because, although according to the witness of the holy fathers all things are common by natural law, nevertheless it is permitted to appropriate temporal things. In the same way the Roman people have the right to elect the Roman bishop from the second mode and not from the first and therefore it is permitted to them to act against this law for cause.28 28. Dialogus, 3.2.3.7 (Goldast, Monarchia, 936), “sicut etiam ex causa rationabili licet venire contra ius naturale secundo modo dictum, quia quamvis tes-

108  Fourteenth-Century Variations These passages of the Dialogus present Ockham’s most systematic treatment of natural law. They can be seen as a continuation of an earlier tradition of discourse about permissive natural law and as an affirmation of Ockham’s high regard for human reason and human free choice. All three modes of natural law were grounded on right reason, two of them dealt with nonobligatory or conditional forms of law, and all of them were supported by texts of the Decretum that had been invoked in earlier discussions of permissive natural law. There remains a further problem. It is by no means clear why Ockham chose to present his most detailed account of natural law at this particular point in the whole corpus of his writings. H. S. Offler, the editor of Ockham’s text, suggested that the presentation was conditioned by the “well-known difficulties” inherent in the passages of the Decretum on which the author relied. This is no doubt true, but Ockham had been appealing to those same texts ever since he began writing on Franciscan poverty, and it was only years later that he used them to formulate his own distinctive doctrine of natural law. And, when he did so, the discourse on natural law was presented as a sort of excursus from the main theme he was developing, not really essential to the argument. The points Ockham wanted to make about the right of the Romans to elect and their ability to transfer that right could have been made by appeal to a few standard texts of canon law, some of which Ockham did cite, without the need for a whole new theory of natural law to accompany them. There is, however, another consideration that may be relevant. At the time when Ockham was working on Part 3 of the Dialogus, the section that included his treatment of natural law, he was also engaged in writing a series of treatises directed against the alleged tyranny of the contemporary papacy; and these works contain many references to natural law and natural rights. In them Ockham asserted repeatedly that the law of Christ was a law of perfect liberty and that, accordingly, the power of the pope was limited by the natural rights of his subjects. tantibus sanctis patribus de iure naturae omnia sunt communia, tamen licet res temporales appropriare. Isto modo Romani habent secundo modo ius eligendi Romanum episcopum, et non primo modo, ideo licet eis ex causa contra hoc ius venire.” Offler did not include this chapter in his edition of the “Three Modes.”

William of Ockham  109 The relevant texts, with a chronology suggested by Offler, were Contra Benedictum (1337–38), An princeps (1338–39), Dialogus Part 3, Tract 1 (1340), Breviloquium (1340–41). Offler thought that the Breviloquium was written just before Dial.3 Tr.2 (where the treatise on natural law was placed).29 All the works contained similar arguments, sometimes repeated verbally from one to another, though with additional material in each one. The argument about an evangelical law of liberty was first stated briefly in the Contra Benedictum, then in a more fully developed form in the An princeps and the later works.30 It seems to me that Ockham’s treatment of natural law, and its placing, can best be understood if they are considered, not only in their immediate context of a particular imperial claim, but in the context of this whole cluster of works. We need therefore to consider briefly the views that Ockham presented in his polemical treatises before returning to his account of natural law.

The Law of Liberty and the Three Modes Ockham often presented his argument against excessive papal power by attacking the view held by some unnamed adversaries, that the pope could rightly do or command anything not explicitly prohibited by divine or natural law. The author’s rejection of this teaching and the further development of his thought on natural and divine law and on human freedom can be conveniently illustrated from the An princeps, a relatively brief summary of ideas presented more diffusely in later works. In a typical passage of the An princeps Ockham wrote: It is the opinion of some that the pope has such a plenitude of power from Christ in both spiritual and temporal affairs . . .that the only things he may not do are those directly prohibited to all of humankind by divine law and the immutable and non-dispensable law of nature.31

29. See H. S. Offler, Introduction to Breviloquium, Opera politica 4, 90. 30. For references to this argument in Ockham’s various works see Offler, An princeps, Opera politica 1, 230n. 31. An princeps, 229, “ut sola illa de plenitudine potestatis non possit, a quibus

110  Fourteenth-Century Variations This immutable law was what Ockham a year or two later would call the first mode of natural law. No one doubted its obligatory force; even extreme papalists agreed that the pope was bound by its prohibitions concerning gross offenses such as those included in the Ten Commandments. Ockham was therefore concerned in the An princeps and the later works to argue that papal power was also limited in the whole realm of human acts that were not commanded or forbidden by this kind of natural law, where the law left people free to choose their own courses of action and ways of life. Eventually Ockham would realize that he needed to introduce the idea of a permissive natural law to explain this realm of human behavior, but at first he was content to rely on the teaching that divine law, the Christian law of the New Testament, was a law of liberty. He began his argument by restating the view of his adversaries: “hence, according to some, even if the pope should sin in commanding or prohibiting or impeding such things that are indifferent in themselves, still whatever he does concerning them, his act is binding.”32 On this Ockham commented that others regarded this opinion as heretical and extremely dangerous, and then went on to present his own counterargument. The pope could not have such a plenitude of power because “the Christian law instituted by Christ is a law of perfect liberty.” He then presented a string of scriptural references including James 1:25, “a law of perfect liberty,” Galatians 2:4, “our liberty that we have in Christ” and 5:13, “for you are called to liberty,” and 2 Corinthians 3:17, “where the spirit of Christ is, there is liberty.”33 The notion of Christian freedom can be understood in various universitas mortalium directe per legem divinam vel ius naturale immutabile et indispensabile prohiberetur.” The argument was repeated at Breviloquium de principatu tyrannico, in Opera politica, vol. 4, 2.1, 111; Octo quaestiones de potestate papae, in Opera politica, vol. 1, 1.2, 17; De imperatorum et pontificum potestate, in Opera politica, vol. 4, 283. For modern translations of the Breviloquium and De imperatorum see William of Ockham: A Short Discourse on Tyrannical Government, edited by A. S. McGrade, translated by J. Kilcullen (Cambridge: Cambridge University Press, 1991) and On the Power of Emperors and Popes, edited and translated by A. S. Brett (Bristol, U.K.: Thoemmes Press, 1998). 32. An princeps, 229, “quamvis papa peccare possit quaedam talia de se indifferentia praecipiendo vel prohibendo vel impediendo, tamen quidquid circa huiusmodi fecerit factum tenet.” 33. Ibid., 230–31.

William of Ockham  111 ways. Ockham chose to emphasize the most evident and direct one. The evangelical law of liberty freed Christians from the burden of ceremonial precepts imposed on the Jews by the Old Law. From these texts and many others we gather that, through evangelical law and the teachings of Christ, Christians are freed from a manifold servitude and that they are not oppressed through evangelical law by such a great burden as the Jews were by the Old Law.34

So far this was quite conventional. The evangelical law that Ockham referred to here was indeed a law of permission, not a command or prohibition; St. Paul could write, in explaining it, “All things are permitted to me, but not all are expedient.” But Ockham went on to apply, or misapply, the old texts of scripture in a new way to the immediate circumstances of his own age. If Christ had chosen to institute a law of liberty for his people, Ockham argued, he could not have intended to submit them to the rule of a tyrant pope. The gentile Christians rejoiced when they learned that they were released from the Jewish observances but they would not have rejoiced if they had been freed from a divine servitude only to be subjected to a still harsher human yoke. And, if the pope really had the absolute power over spiritual and temporal affairs that some claimed for him, Gospel law would not be a law of liberty at all but a law of most horrid servitude. All would be slaves of the pope, for the power to command anything not directly forbidden by divine and natural law was precisely the power of a master over a slave. “All Christian kings and princes and prelates and clergy and layfolk would be slaves of the pope in the most strict signification of the word ‘slave.’”35 If the pope had such power he could without fault or cause depose kings and princes and all the clergy and laity from their dignities and deprive them of all their goods and rights. But this, Ockham concluded, was contrary to evangelical liberty and so “heretical, pernicious, and dangerous to all.” In reality, he wrote, 34. Ibid., 231, “non sunt per legem evangelicam tanta servitudine oppressi quanta Iudaei per legem veterem premebantur.” In the Dialogus the Student raised a series of objections, e.g., that Christian freedom meant only freedom from servitude to sin. In response the Master defended the position set out in the An princeps and other works of Ockham. See Dialogus, 3.1.1.6, 777. 35. Ibid., 232.

112  Fourteenth-Century Variations [W]ithout fault or cause the pope ought not to disturb the rights of others . . . the supreme pontiff does not have any power from Christ to deprive others of their rights, liberties, and goods by his arbitrary will.36

In later definitions of papal power the phrase, “saving the rights and liberties of others,” echoes through all of Ockham’s polemical writings, repeated over and over again “like a chant” as Knysh observed.37 There is an important point to be noted here. Ockham was not arguing that the liberties and rights that the Christian people enjoyed were first instituted by Christ; it was rather that, by allowing Christians to set aside the ceremonial precepts of the Mosaic law, he permitted them to exercise the freedom that natural law conceded to all people. In the An princeps Ockham referred to “the rights and liberties of the faithful conceded by God and nature,” but he also mentioned that infidels too had the rights to exercise jurisdiction and own property, and the point was developed at greater length in the Breviloquium.38 Ockham further wrote in the An princeps that, even if the pope had been granted both “swords” of spiritual and temporal power (which Ockham denied of course), still he would not have been empowered to take away “the natural liberty by which men are free and not slaves.”39 In the days of the apostles, Ockham observed, the early Christians were not slaves of the emperor but in many ways enjoyed their natural freedom.40 The rights and liberties that the pope could not violate were held “by natural law or the law of nations or civil law before and after the institution of evangelical law.”41 In discussing the natural freedom of humankind Ockham also re36. Ibid., 244, “Ad illa enim potestas regulariter papalis minime se extendit, cum absque causa et sine culpa iura turbare non debeat aliorum. . . . Et ideo non habet pontifex summus a Christo potestatem pro suae arbitrio voluntatis spoliandi alios libertatibus, iuribus et rebus.” Numerous references to Ockham’s use of “without cause or fault” were given by G. D. Knysh, Political Ockhamism (Winnipeg: WCU Council of Learned Societies, 1996), 106 n.267. Almost invariably, when Ockham discussed limits to papal power he included this qualification. 37. See Knysh, Political Ockhamism, 160 n.265. Again Knysh gave many examples. 38. An princeps, 235. Breviloquium, 3.5–6, 175–78. 39. An princeps, 248, “libertas naturalis, qua homines naturaliter sunt liberi et non servi.” 40. Ibid., 249. 41. Ibid., 244.

William of Ockham  113 ferred to the old doctrine concerning acts of supererogatory virtue. In the An princeps he noted briefly that the pope’s power in spiritual matters extended to necessary things but not to such voluntary counsels of perfection, and then again developed the argument more fully in the Breviloquium. This work began with a rhetorical appeal to the peoples of the whole world to defend the “rights and liberties conceded to you by God and nature.” Ockham went on to argue that these rights included freedom from excessive burdens that were not imposed by natural law or divine law. Counsels relating to Christian perfection were useful and expedient but they were not matters of necessity and so the pope could not enforce their observance. He could not, for instance, compel anyone to choose a life of virginity— that was “more a matter of vow than of precept.” Similarly the pope could not force anyone to enter a religious order against his will or fast on bread and water or renounce all of his property.42 Such arguments treated divine and natural law as conceding to humans a realm of autonomy, of free choice in the making of major decisions. One is reminded of the old canonist who wrote regarding a counsel of perfection, “See! It is left to his own free will.” We can now turn back to Ockham’s treatment of natural law and its placement in the Dialogus. If we follow Offler’s chronology—and his knowledge of the relevant writings was unsurpassed—it was probably just after writing the Breviloquium that Ockham began work on Part 3 Tract 2 of the Dialogus, which included his account of the three modes of natural law. It seems to me likely that at some point in 1341 Ockham realized that he had been appealing to natural law and natural rights in a whole series of recent treatises but had never provided a detailed explanation of his own understanding of these terms. To frame a suitable explanation he needed a doctrine of natural law that not only included commands and prohibitions but that also permitted freedom of choice in important areas of life, a law that could be modified to suit changing contingencies, a law that in all its modes could be grounded on right reason. Ockham found materials from which such a doctrine could be constructed in the texts of the 42. Breviloquium, 2.17, 146–47.

114  Fourteenth-Century Variations Decretum that were available to him. And he used the occasion provided by his discussion of an imperial claim to reshape those materials in his own way and introduce the resulting doctrine into the Dialogus at this point. This approach is confirmed by the way in which the chapter on natural law is framed between the immediately preceding and succeeding chapters of the Dialogus. In the preceding chapter the Student suggested, as we saw, that the power to appoint a successor should inhere in the pope himself. In the succeeding chapter the Student returned to this question with a request for more discussion of the point, and in his reply the Master gave a succinct summary of the arguments against papal absolutism that Ockham had been making in the polemical treatises of the preceding few years. Here again we are told that Christ gave to the pope fullness of power, but “saving the rights of others.” And again Ockham explained that Christ gave to the Christian people “a law of perfect liberty” and that the pope therefore had power only as regards “things to be done of necessity.” Accordingly, the pope could not “command anyone to do works of supererogation.43 And when Christ revoked the ceremonial precepts of the Old Testament, he wished that all should retain “the rights they have by the law of nations.” These allusions suggest that, when Ockham presented his doctrine of natural law, he was not thinking only of the immediate context concerning an imperial right within which it was placed; rather he was seeking also to provide a framework of thought for his recent teachings on papal power. His presentation of the three modes of natural law can readily be understood in that way. For example, the three modes seem to correspond closely to some points that Ockham had just made in the Breviloquium where he discussed the rights to private property and temporal jurisdictions as limits to papal power. Right reason, he wrote there, showed that these things were needed if humans were to “live and live well.”44 Then Ockham explained that there was a 43. All the phrases quoted are in Dialogus 3.2.3.7 (Goldast, Monarchia, 935). (Not included in Offler, “Three Modes.”) 44. Breviloquium, 3.7, 179, “dedit ei potestatem pro se et posteris suis disponendi de terrenis, quae ratio recta dictaverit esse necessaria, expedentia, decentia vel utilia non solum ad vivendum, sed etiam ad bene vivendum.”

William of Ockham  115 difference between the right to appropriate and actual ownership, and likewise between the power to set up a temporal jurisdiction and the actual institution of a ruler. In such matters, he explained further, the power came from divine and natural law; the actual institutions were brought about through human acts.45 In the scheme of natural law that Ockham presented shortly afterward in the Dialogus, the first mode of natural law did not mandate the institution of property and jurisdiction, but right reason showed that these things were necessary among sinful humans. The initial power to institute them would pertain to the second mode, and the final human acts of institution to the third. There were some relevant arguments also in Ockham’s earlier work, the Opus nonaginta dierum. There he wrote that in the first age of innocence there was no ownership at all; then, after the Fall there was a time when humans were permitted by natural law to own property; and, finally, actual properties were instituted by human acts and human laws.46 If we transpose the argument into Ockham’s later language of natural law, then in the earliest age people were living according to the first mode, in the next stage according to the second mode, and in the final stage according to the third mode. In another passage of the OND Ockham wrote that a custom introducing ownership of property would have been contrary to the natural equity that existed in the age of innocence or to the natural equity that would have existed if humans always lived according to reason, but not to the natural equity that actually existed among fallen humanity. It is as though he had in mind his schema of the three modes from the beginning and chose a convenient point in his later work to expound it fully.47 Viewed in this way, Ockham’s teaching on the three modes of natural law can be seen as a way of extending the idea of permissive natural law that he found in the texts of the Decretum and first introduced in his defense of Franciscan poverty, to broader issues of ecclesiology and political theory. It can also be seen as exemplifying a theme of human freedom that ran through all of Ockham’s works. 45. Ibid., 3.7, 179; 3.9, 181–84. 47. See OND, 669.

46. OND, 432, 434, 661.

116  Fourteenth-Century Variations In his philosophical writings he emphasized freedom of the will; in the polemical works he was concerned with freedom from arbitrary tyranny; and the law of liberty that he found in scripture helped him to formulate a structure of natural law that also provided for a realm of human free choice.

Indifferent Acts The treatment of supererogatory works in the Breviloquium led Ockham to mention a final topic that presents some further problems, the idea of indifferent acts. In the Breviloquium Ockham wrote that the pope should not place on the shoulders of Christians “burdens of supererogatory works, or other indifferent things, or anything at all not found in divine or natural law without urgent necessity and without fault” (emphasis added).48 The ancient idea of adiaphora, acts that are morally indifferent, had been associated with ideas of permissive natural law at least since the twelfth century. References to indifferentia also occur in various works of Ockham and they have been understood in different ways by modern scholars. De Lagarde initiated an early controversy when he argued that Ockham’s teaching had created a sort of moral “no man’s land,” a huge area of human life where moral values had no purchase. In rejecting this view of Lagarde, Knysh wrote, rather paradoxically, that, “for Ockham, the whole of human activity was regulated by natural law”; but he meant that indifferent human acts were regulated in the sense that natural law expressly provided for free choice regarding them and so for an area of human autonomy.49 Knysh went on to explain correctly that, for Ockham, indifferent acts were ones that were morally acceptable or permissible but not obligatory. Probably no one nowadays would want to present Ockham as a moral anarchist, but there are some remaining issues that arise out of apparent contradictions in his various writings. As we saw in the 48. Breviloquium, 2.16, 148. “onera supererogationis vel alia indifferentia seu quaecumque, quae nec sunt de iure naturali nec in lege reperiuntur divina.” 49. De Lagarde, La naissance, 1st ed., 122, 154–56; Knysh, Political Ockhamism, 74 and n.98.

William of Ockham  117 texts of the An princeps and the Breviloquium already quoted, Ockham clearly stated that the pope could not command or prohibit things in the realm of indifferent acts. But in the earlier Opus nonaginta dierum he seems to have accepted a quite contrary teaching, the idea that no human act could be indifferent. The issue was first raised by Pope John XXII. Arguing against the Franciscans’ claim that they had abandoned all rights in the things that they used, he declared that they must use justly or unjustly, and that, if they used justly, they must use with a right. To reinforce his argument the pope added that no act could be indifferent. “It is impossible for any individual human act to be indifferent, neither good nor evil, neither just nor unjust.”50 Responding for himself and on behalf of the group of Franciscans who were opposed to the pope, Ockham commented on the pope’s words, “Neither good nor evil. This they accept without reservation. Neither just nor unjust. This they accept in one sense but deny in another sense.”51 Ockham answered the pope’s argument about just and unjust acts by carefully distinguishing different senses of the word “just.” The important point here, though, is that he accepted unreservedly the pope’s assertion that no act could be indifferent, neither good not evil. And yet, in his later works, Ockham referred frequently to acts that were indifferent. The conflict, however, is only apparent, The point is that there were two ways of characterizing indifferent acts and both came into play at different places in Ockham’s writings. If we look back for a moment at Hugh of St. Victor we can see that both were present in his work.52 An act could be called indifferent because it was not commanded or forbidden by natural law or else because it was morally neutral, intermediate between good and evil. The two things were not the same. Some good things were not commanded by natural law and some evil things were permitted by human law. Later thinkers, including Aquinas, added that an act which was neutral in itself acquired a good or evil quality according to the intention of the actor, and Ockham himself had formulated a similar argument in his 50. OND, 573. 52. Above, 10–11.

51. Ibid., 580.

118  Fourteenth-Century Variations early theological work. He too held that an act that was morally neutral, indifferent in itself, would be good or evil according to the end to which it was directed.53 Agreeing with the pope’s teaching for once, Ockham therefore accepted it unreservedly. In the later works, devoted to attacking papal absolutism, Ockham was using the other way of characterizing indifferent acts. He was concerned specifically with acts that were not commanded or forbidden by natural law and arguing that the pope ought not to intervene arbitrarily in that sphere of human conduct. There was no incongruity in arguing that an act could be intrinsically indifferent in the sense that natural law did not command or prohibit it while at the same time acknowledging that the act could be contingently good or evil according to the end to which it was directed. There is another problem, however, that still remains. In the later works Ockham insisted that indifferent things lay outside the scope of the pope’s regular power; but in the OND he stated emphatically that the pope must indeed be obeyed in such matters. Here are the words of the OND. “The things that are defined concerning faith and morals are immutable, but things that are decreed by the supreme pontiff concerning acts that are indifferent in themselves can be revoked and the contrary decreed.”54 Ockham meant here they could be revoked by a later pope. Moreover the new pope’s decision in such matters, even if flawed, still commanded obedience. For if the pope, in decreeing such things, should ordain something that is not in the least beneficial or useful for his subjects, still he is to be obeyed.55

But in his last work, the De imperatorum et pontificum potestate, Ockham was still reiterating a precisely opposite point of view. In a series of chapters listing once more all the things that were exempted from papal power, he concluded: 53. Opera theologica, vol. 8, 338, 54. OND, 836, “Tamen illa quae circa fidem et mores diffiniuntur . . . immutabilia perseverant: illa vero quae . . . circa agibilia de se indifferentia statuuntur revocari possunt et contraria statui.” 55. Ibid., 837, “Nam si papa in huiusmodi statuendis . . . minus salubriter et utiliter pro subditis ordinaret, obediendum esset eidem.”

William of Ockham  119 Besides the foregoing matters, all trifling, unprofitable, and indifferent things are exempted from the power of papal government because in such things no one is bound to obey him.56

Ockham did not mean of course that all indifferent things were themselves trifling or useless; they included, for instance, such lifeshaping decisions as choosing to marry or enter a religious order. But Ockham wrote here that indifferent things were exempted from papal power and in the OND he had declared that the pope had to be obeyed in such things even if what he decreed was “not in the least beneficial.” The difference can be partly explained by the different questions that Ockham was addressing in his earlier and later works. In the initial stages of the poverty controversy John XXII maintained that, in revoking the decree of his predecessor, Nicholas III, on Franciscan poverty, he had merely promulgated a disciplinary measure regulating the affairs of the Franciscan Order. The friars insisted that, in rejecting the Franciscan way of life which, according to the decree of Nicholas III, was the way of Christ and the first apostles, the pope had erred in a matter of faith and so had fallen into heresy. The friars conceded, therefore, that a pope could revoke a decree of a predecessor when it concerned only church discipline, but not when it involved a matter of faith.57 In those circumstances it was a good tactic for the Franciscans to emphasize the pope’s extensive disciplinary powers in order to contrast them with his limited authority where the faith itself was concerned. And that is what Ockham did in the OND. The conflict of utterances in his different works can be partly explained in another way. Ockham never denied that the pope had a “regular” power, a legitimate authority to rule the church.58 Nor did 56. De imperatorum, 289, “Praeter praemissa a potestate principatus papalis frivola, inutilia et indifferentia sunt excepta, quia in talibus nullus ei obedire tenetur.” 57. This dispute is considered in detail in Tierney, Origins of Papal Infallibility, 1150–1350 (Leiden: E. J. Brill, 1972), 185–218. 58. He could hardly have done otherwise. The very existence of his own Franciscan Order and its status in the church depended on a series of privileges— often overriding the traditional claims of local bishops—that previous popes had granted to the Order by virtue of their supreme authority.

120  Fourteenth-Century Variations he deny even that a pope might exceed his regular power in a situation of urgent necessity. He could, therefore, readily acknowledge in the OND that the pope had to be obeyed in indifferent matters that did not touch the faith. Even in his last work he still conceded that “the pope under Christ is the head and supreme judge of all the faithful.”59 What Ockham complained about bitterly in his later works was not papal power as such but the tyrannical abuse of it. It has been suggested that he sought to “dejuridicize” the church, but this does not quite capture his intention.60 He was not opposed to law but to lawless power. But when all this is taken into account there is at least a sharp verbal contrast between Ockham’s language about papal power in relation to indifferent acts in the OND and in the later writings. In the works attacking papal absolutism Ockham always maintained that the supreme pontiff was given power only for the good of the church; but in the OND he wrote that the pope had to be obeyed even if what he decreed was “not all beneficial or useful for his subjects.” He would never have used such language in the later writings. One must just acknowledge that Ockham’s attitude to the papacy hardened as his exile grew longer. Finally, we should note that the tensions in Ockham’s treatment of papal power have a significance which goes beyond the immediate circumstances that gave rise to them. They reflect a persistent 59. De imperatorum, 304. 60. This view was presented by Takeshi Shogimen, Ockham and Political Discourse, 159, 232. “Ockham in his anti-papal polemical activities was a theologian ideologically opposed to canonists.” But the argument should not be pressed too far. Ockham did not like canonists but his argument was not directed specifically against their teachings. He quoted them often when it suited his own cause. And there was really no clear line of demarcation between a canonistic and a theological ideology of papal power. Some theologians presented extreme claims for the papacy (notably the great Franciscan doctor, St. Bonaventure), and some canonists presented nuanced views. Ockham’s persistent teaching that persons should not be deprived of their rights “without fault or cause” was itself a canonistic doctrine. The definition of papal power closest to the one that Ockham repeatedly criticized came from an eminent theologian, Giles of Rome. See his De potestate ecclesiastica, edited by R. Scholz (Weimar: Herman Böhlaus Nachfolg, 1929), 2.13, 118, “omnia sunt subjecta sub pedibus eius, ut possit imperare et precipere omnia quae non obviant iuri naturali et fidei orthodoxe.”

William of Ockham  121 duality in the tradition of thinking about indifferent acts and natural law. The idea of a permissive natural law could be used to defend individual rights, but it could also be seen as leaving open a realm of indifferent acts that could properly be regulated by obligatory positive laws enacted by a people or by a ruler on behalf of the people. Both ways of deploying the concepts of indifferent acts and permissive natural law would persist in the writings of future generations of jurists and political philosophers.

6

Marsilius of Padua

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, the Defensor 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 material. In Discourse I Marsilius showed how a rational secular theory of the state could be constructed on Aristotelian premises without any appeal to divine authority. Then in Discourse II he turned to Christian sources to argue that similar principles applied to the governance of the church. I am grateful for permission to include in this book a revised version of material that originally appeared as “Obligation and Permission: On a Deontic Hexagon in Marsilius of Padua,” in History of Political Thought 28 (2007): 419–32. 1. Marsilius von Padua. Defensor pacis, edited by R. Scholz (Hanover: Hahnsche Buchhandlung, 1933), 1.19.12, 135; 1.1.2, 4. (Cited in subsequent notes as Defensor.) There are two good modern translations of the work: A. Gewirth, Marsilius of Padua: The Defender of the Peace, vol. 2, The Defensor pacis (New York: Columbia University Press, 1956) (the 2001 reprint has an extensive bibliography of modern work); A. Brett, ed. and trans., Marsilius of Padua: The Defender of the Peace (Cambridge: Cambridge University Press, 2005).

122

Marsilius of Padua  123 A basic teaching of both Discourses was that jurisdiction, ultimate ruling authority, inhered in the whole body of a people—the “legislator” in the language of Marsilius—and derivatively in a ruling authority instituted by consent of the people. In a political community the legislator was the body of citizens, in the church the body of the Christian faithful. But, among the faithful, the supreme ruler to whom coercive power was entrusted over both clergy and laity was the secular monarch, the emperor, not the pope. In the course of his general onslaught on papal pretensions Marsilius also presented a defense of the Franciscan doctrine of evangelical poverty that John XXII had condemned. Marsilius was duly excommunicated for presenting his subversive doctrines and, shortly before Ockham, he too found refuge at the court of Ludwig of Bavaria. Every part of the Defensor pacis has been studied extensively by modern scholars and they have propounded a variety of different interpretations of key points in the text.2 At first attention was focused on Marsilius’s secular political theory. Then attention turned to his teachings concerning the structure of the church. And more recently his treatment of evangelical poverty has evoked discussion from scholars interested primarily in the Franciscan dispute. This section of his work—once dismissed by a modern editor as an “excrescence”—is the most important part for our purpose since, as we noted in considering Ockham, it was difficult to defend the Franciscan position without introducing the idea of permissive law.

The Nature of Law In Discourse I Marsilius presented an uncompromisingly positivist doctrine concerning the nature of law. He noted that the word “law” (lex) had various meanings but that in its most proper sense, the one that Marsilius would make his own, a law was a command concerning matters of civil justice that was authorized by the legisla2. For an overview of modern work on Marsilius see C. J. Nederman, “Marsiglio of Padua Studies Today—and Tomorrow,” in The World of Marsilius of Padua, edited by G. Moreno-Riano, 11–25 (Turnhout: Brepols, 2007), and the other essays collected in this volume.

124  Fourteenth-Century Variations tor and backed by coercive force.3 In defining law in this sense Marsilius quoted some words of Aristotle—“Law has coercive force as being speech proceeding from a certain prudence and understanding”—but his own definition had a different emphasis. Law is . . . an ordinance made from political prudence showing what is just and beneficial and their opposites and having coercive force in that a command has been given concerning its observance that each is obliged to obey, or which is enacted in the form of such a command.4

This may not seem so different from the definition of law given by Aquinas, “An ordinance of reason for the common good promulgated by one who has charge of the community.”5 But for Aquinas reason was the essence of law, for Marsilius it was coercive command. Aquinas, following Augustine, wrote that an unjust law was not really a law at all; Marsilius taught that an unjust law was an imperfect law, but still a law.6 In Discourse II Marsilius presented a more detailed treatment of divine law and human law but he continued to define them both in a positivist fashion. In an unusual argument, he set aside the idea of natural law as incoherent—and indeed we have seen that many different meanings had been attached to the term ius naturale—or at least as unnecessary for his purposes.7 Marsilius’s point was that all the provisions of natural law could be found in divine law or human law, so that there was no need for him to appeal to natural law as a separate category. However, Marsilius commonly relied on teachings of divine law that his contemporaries regarded as being also exemplifications of natural law. He also noted here that in case of conflict between divine law and human law the divine law should prevail. 3. Defensor, 1.12.6, 67. 4. Ibid., 1.10.4, 49–50. 5. Summa theologiae, 1.2ae.90, 4. 6. Defensor, 1.10.5, 50–51. 7. Ibid., 2.12.7–9, 268–69. For a reconsideration see H. Hamilton-Bleakely, “Marsilius of Padua’s Conception of Natural Law Revisited,” in Moreno-Riano, World of Marsilius of Padua, 125–42. The author argues that, although Marsilius departed from traditional ideas of natural law, he reasoned like a natural lawyer in that he proceeded from self-evident principles (e.g., that humans naturally desire a sufficient life) to necessary conclusions. The fact that Marsilius noted that different definitions of natural law contradicted one another does not necessarily prove that he rejected the whole idea of natural law as such. Medieval canonists had often made the same point.

Marsilius of Padua  125 Marsilius introduced his further treatment of law with a discussion of voluntary and involuntary acts. Some acts, he wrote, emerged without any direct control or command of the human mind, but others, the voluntary acts, could be called “commands of the mind” and over those we had complete liberty as regards whether they happened of not.8 At a later point he defined free will or freedom of choice in the language of Aquinas and others as “dominion of our acts,” and wrote that it inhered naturally in humans.9 Marsilius continued with a further analysis of human acts as either “immanent” or “transient,” a distinction similar to the modern one between “self-regarding” and “other-regarding” acts. Immanent acts had no effect outside the mind of the agent, but transient acts did affect the external world, and they could harm or benefit other persons.10 These preliminary distinctions were then deployed in Marsilius’s definitions of human and divine law. The principal difference between them lay in the kind of coercive sanctions they employed. Human civil laws dealt with conduct in this present world, and their rewards and punishments were distributed during our life here on earth. Divine law, laid down by Christ, also regulated life on earth, but its rewards and punishments took effect only in the afterlife.11 A further difference was that human law regulated only transient acts, those that affected others, while divine law was concerned with both transient and immanent acts. And so Marsilius arrived at two more definitions of law. They both treated law as essentially coercive command. Human law was defined as, [A] rule of transient voluntary human acts that can be done for the advantage or disadvantage of others . . . with coercive punishment of transgressors in the status of the present world only.12

Divine law was, [A] rule of voluntary human acts . . . both immanent and transient, according as they can be done or omitted rightly or wrongly in this world but 8. Ibid., 2.8.3, 222. 10. Ibid., 2.8.3, 223. 12. Ibid., 2.8.5, 224.

9. Ibid., 2.12.16, 271. 11. Ibid., 2.8.4, 223–24.

126  Fourteenth-Century Variations with regard to the status or end of the future world; it is coercive and distributes penalties and rewards, but in the future world, not in this one.13

Marsilius went on to argue that the ministers of the church, pope and bishops and priests, were subject to the coercive jurisdiction of secular rulers for offenses against human law, but that they themselves had no coercive power to enforce divine laws.14 A law, taken in the proper sense of the word, was a coercive rule, Marsilius repeated; but in the realm of divine law only Christ was the judge and his judgments were rendered only in the next world. This was no doubt the conclusion that Marsilius wanted primarily to emphasize, but for us the most significant point is that all the definitions of law we have encountered so far, including those of both human and divine law, referred only to precepts and prohibitions imposing obligations and enforced by coercive sanctions. So far there has been no reference at all to the idea of permissive law.15 Marsilius addressed that theme in the next phase of his argument when he turned to the problems of evangelical poverty involved in the current Franciscan dispute. He introduced the topic in a chapter with the heading, “On the different meanings of certain terms necessary for determining questions concerning the status of supreme poverty,” and began by saying that he would first explain the different meanings of the word ius since they would be needed in defining other terms used in the controversy. Then he continued, “Ius then in one of its significances means the same as “law” (lex), taken in the third and last sense of the term as in Discourse I, Chapter X.16 At that earlier point of the Defensor Marsilius had asserted that law in its proper sense was a coercive command of a legislator obliging subordinates on pain of punishment. But now, without any fanfare, 13. Ibid. 14. Ibid., 2.8.7, 225–27; 2.9.1–2, 231–32. Marsilius gave references to earlier chapters (2.6.4–5) where he had argued with many references to scripture and church fathers that Jesus conferred no such authority on Peter and the apostles. 15. Marsilius did mention that some voluntary acts could be done or omitted without incurring any coercive sanctions (2.8.4, 223), a theme that he would develop later. 16. Ibid., 2.12.3, 264, “Ius igitur in una sui significacione dicitur de lege dicta secundum terciam et ultimam legis significacionem, de qua fuit habitum 10 prime.”

Marsilius of Padua  127 he introduced a different definition which included permissive laws. Referring to both divine and human law he wrote, [W]e may say . . . that both laws agree in this, that each is a precept or prohibition or permission of acts that are of such a nature as to proceed from the control of the human mind.17

The author presented his new definition in an inconspicuous fashion. He seems to sidle up to it as though it was just a reformulation of the earlier definition that he had just cited. But the reference to permissive law here was something new in his work, a significant innovation.

A Deontic Excursus Marsilius’s subsequent treatment of permissive law was evidently shaped by the fourteenth-century context within which he wrote, and at this point specifically by his concern to defend the cause of the dissident Franciscans. But before returning to this theme I want to turn aside briefly to consider another, different way of approaching the author’s thought that could also have some significance in an overall appraisal of medieval teachings on permissive law. The work of Marsilius illustrates in an unusual way how the basic building blocks of modern deontic logic—the branch of modal logic that deals with the concepts of precept, prohibition, and permission—could find expression in medieval discourse, though of course without any actual development of such a system of formal logic.18 The absence of any such formulation among the subtle logicians of the fourteenth century is a minor problem in itself. They lacked the resources of modern symbolic logic but the relevant ideas can be expressed in other languages. 17. Ibid. 2.12.3, 265, “dicamus . . . quod utraque lex est preceptum vel prohibicio aut permissio actuum qui provenire sunt nati ab imperio mentis humane.” 18. Compared with the burgeoning literature on systems of deontic logic, the volume of writing on the history of the relevant concepts is very slight. See S. Knuuttila, “The Emergence of Deontic Logic in the Fourteenth Century,” in New Studies in Deontic Logic, edited by R. Hilpinen (Dordrecht: D. Reidel Publishing Company, 1981), 225–48.

128  Fourteenth-Century Variations My attention was called to this aspect of Marsilius’s thought by a study of Joachim Hruschka on the work of a much later author, Gottfried Achenwall (1719–1772). Hruschka pointed out that Achenwall’s treatment of obligation and permission included the essential relationships that would later form the basis of deontic logic, and that they could be portrayed in the form of a modern deontic hexagon.19 While reading Hruschka I realized that a similar structure of relationships had been presented by Marsilius four centuries earlier, and that his formulation too could be presented in a modern hexagon. This material forms only a minor chapter in Marsilius’s scheme of thought as a whole but it seemed to deserve some attention in a work on the history of permissive law. Before we consider this aspect of Marsilius’s work a little basic background is necessary. The discussion of problems concerning obligation and permission as a branch of modal logic is a modern development. Deontic logic is mainly a creation of the second half of the twentieth century, inspired primarily by a pathbreaking article of Georg von Wright published in 1951.20 Von Wright observed that the basic concepts of modal logic, necessity, possibility, and impossibility, have close parallels in the normative terms obligation, permission, and prohibition, and he went on to explore the various conjunctions and disjunctions among these normative terms. Nowadays, as we noted, deontic propositions are normally expressed in a language of symbolic logic, but they can also be presented in a more traditional fashion in diagrams such as the square of opposition commonly found in earlier forms of modal logic. In a simple modal square “necessary” implies “possible” and “impossible” implies “not necessary.” The relationships are simple and self-evident. If, then, in place of the terms “necessary,” “possible,” “impossible,” “nonnecessary,” we substitute “obligatory,” “permitted,” “prohibited,” “nonobligatory,” we have a deontic square. But a moment’s reflection will suggest that the analogy with stan19. See Joachim Hruschka, Das deontologische Sechseck bei Gottfried Achenwall im Jahr 1767 (Hamburg: Joachim Jungius-Gesellschaft, 1986). 20. G. H. von Wright, “Deontic Logic,” Mind 60 (1951): 1–15. The present discussion deals only with some very elementary ideas included in von Wright’s article.

Marsilius of Padua  129 Obligatory

Prohibited

Permitted

Non-Obligatory

dard modal logic is not perfect, especially in the relation between obligation and permission. In the deontic square, obligation implies permission. But in normal everyday language, and in legal language too, permission is commonly seen as opposed to obligation. Permission typically refers to a realm of indifferent actions where we are free to act or forbear, where the law does not command or prohibit a particular course of action. Von Wright gave an example that may nowadays seem rather old-fashioned. “In a smoking compartment we may smoke, but we may also not smoke. Hence, smoking is here a morally indifferent form of behaviour.” In this sense of the word permission is opposed to obligation. And in medieval and early modern juridical discourse the idea of permission was commonly understood in this way; it referred to a realm of action where the law did not command or forbid. A little further reflection, however, will suggest that this assumed opposition does not fully express the nature of obligation and permission. In modern systems of deontic logic it is commonly understood that, if a law or norm obliges us to perform some act it must also implicitly or explicitly permit us to do so.21 This is a basic supposition in modern work, but we have not so far encountered it in medieval writings. Furthermore, in modern work it is commonly assumed that prohibition does not exclude either obligation or permission (as in the 21. This was referred to as “the principle of deontic consistency” by R. Hilpinen, “Deontic Logic,” in The Blackwell Guide to Philosophical Logic, edited by L. Goble (Malden, Mass.: Blackwell, 2001), 159–82 at 161.

130  Fourteenth-Century Variations simple deontic square). A prohibition obliges us to abstain from doing some relevant act and also permits us to abstain. Because of this relationship, in later versions of von Wright’s argument his threefold system (precept, prohibition, permission) was commonly collapsed into two basic categories, the obligatory and the nonobligatory, with both precept and prohibition included in the former category. Evidently “permission” is a broad category that can include several different kinds of acts. It can refer to permission to perform obligatory acts or to perform or not perform indifferent acts or it can include both meanings. Von Wright included this distinction as a necessary part of his argument. “It should be observed that indifference is thus a narrower category than permission . . . for what is obligatory is also permitted but not indifferent.”22 This was one of the elementary assumptions of von Wright’s system. It indicated that an adequate system of deontic logic would have to encompass both kinds of permission. Once this was understood it became clear that the various conjunctions and disjunctions of the terms precept, prohibition, and permission could not be expressed in a simple modal square of the kind illustrated above. They could, however, be presented in a more complex hexagonal diagram. Accordingly such deontic hexagons were constructed soon after von Wright’s work appeared.23 We can now turn back to the treatment of permissive law in the Defensor pacis. After the definition cited above, where Marsilius referred to law as including “precept, prohibition, and permission,” he continued with some dense paragraphs in which he analyzed the meanings of each of these terms. A precept, he wrote, could be understood in two ways, either in an active sense as referring to the act of the legislator in commanding or in a passive sense as referring to the content of the command received by a subordinate as when we say that a servant “does the command” of his master. Also, in imposing obligation, a precept could be either affirmative or negative, either commanding that a particular act be done or that it be omitted. Marsilius added that in common usage the term “prohibition” was 22. “Deontic Logic,” 4. 23. On the development of the deontic hexagon see G. Kalinowski, La logique des normes (Paris: Presses universitaires de France, 1972).

Marsilius of Padua  131 used to designate a negative statute. He thus presented obligation as an inclusive category that comprised both precepts and prohibitions.24 Finally, Marsilius turned to his third term, permissio, and explained the various meanings it could convey. In spite of his earlier assertions that all law consisted of commands obliging those to whom they were directed, he now wrote that some provisions of law did not impose any obligation. There are certain other ordinances either expressed or implied in the laws, either affirmatively or negatively, that refer to the performing or omitting of some act, that do not oblige to punishment . . . such as to perform or omit an act of generosity and likewise many other such acts. And such are properly said to be permitted by law (lege permissa).25

This was still a conventional teaching. The understanding of permissive law as applying to acts that were not obligatory, that were neither commanded nor forbidden, was common in earlier writings. Marsilius added that there were so many such acts that they were not usually expressed in specific laws. But at this point Marsilius introduced a different doctrine, unusual in his own time though centuries later accepted as a taken for granted principle. An obligatory law was also in a sense permissive: Yet this word ‘permission’ taken in a general sense sometimes applies to laws that do oblige to punishment, for everything that the law commands to be done it permits to be done, though the contrary is not true. So too what the law forbids to be done it permits to be not done.26

Marsilius had offered a novel formulation here. In all the previous juridical discourse that we have considered, permission was associated only with acts that were tolerated as a lesser evil or that were indifferent in the sense that they were morally neutral or were 24. Ibid., 265–66. 25. Ibid., 2.12.4,266, “Sunt autem alie quedam ordinaciones . . . non obligantes ad penam, ut actum liberalitatis exercere vel omittere, similiter et aliorum plurimorum quorundam. Et talia proprie dicuntur lege permissa.” 26. Ibid., “quamvis hoc nomen permissum communiter sumptum quandoque dicatur de statutis obligantibus ad penam. Nam omne quod lege fieri precipitur, fieri permittitur.” Marsilius repeated this doctrine in the Defensor Minor, edited by C. J. Nederman (Cambridge: Cambridge University Press, 1993), 1.3,44. There he referred to this class of permissions as “a more general sort of permission.”

132  Fourteenth-Century Variations not commanded or prohibited. The idea that obligation implied permission was foreign to this way of thinking. The words “though the contrary is not true” in the above quotation are significant. Obligatory acts were permitted but not all permitted acts were obligatory. The category of permission included both the choice to perform or omit indifferent acts, such as the act of generosity that Marsilius had mentioned earlier, and also the permission to perform obligatory acts. (As we saw this was one of the basic elements of von Wright’s system.) Marsilius also mentioned at this point that among the nonobligatory acts some were especially meritorious and were called “counsels” while others were mere permissions. He was here again echoing a common teaching. Earlier writers had often distinguished between counsels and mere permissions and had included meritorious acts among the “indifferent things” that were permitted but not commanded. But, in the work of Marsilius, the whole emphasis fell, not on the intrinsic quality of the act or on the intention of the actor, but on the intention of the legislator. As a final step in his argument, therefore, Marsilius explained how a permission that did not impose any obligation could still be an authoritative ordinance: “For everything that is not commanded or prohibited by law is understood to be permitted by ordinance of the legislator. . . . Permission is properly called an ordinance of the legislator obliging no one to punishment.”27 According to this argument, when a legislator abstained from commanding or prohibiting a range of actions he tacitly ordered that they be permitted so that an agent could perform them or not without incurring any penalty. Aristotle had left an enigma for his commentators when he wrote in the Ethics that everything not commanded by law was prohibited. Marsilius, who knew the Ethics well and quoted it from time to time, chose to ignore Aristotle’s opinion and declared instead that everything not prohibited was permitted and permitted by ordinance of the legislator. The question whether the “silence of the law” really expressed the will of a legislator, whether it could 27. Defensor, 2.12.4, 267, “Omne enim quod lege non est preceptum aut prohibitum, intelligitur legislatoris ordinacione permissum . . . permissum vero proprie dicitur ordinacio legislatoris ad penam neminem obligans.”

Marsilius of Padua  133 properly be called law at all, would be much disputed in later centuries. Marsilius simply stated his own doctrine without further argument. In a final definition he introduced the term licitum, “lawfully permitted,” to describe the various forms of permission he had so far mentioned. [E]verything done in accordance with a command or permission of the law or omitted in accordance with a prohibition or permission of the law is done or omitted licitly and can be called lawfully permitted (licitum).28

If an act was commanded by law it was licit to do it; if an act was prohibited it was licit to abstain from doing it, and if it was permitted it was licit either to perform the act or abstain. All of Marsilius’s discussion of ius so far had been about ius as signifying law, including permissive law. He next gave a second definition of the term as meaning what we might call a right. In a second sense ius refers to any human act, power, or habit in accordance with ius in the first sense (i.e., ius as meaning law) . . . in this sense we commonly say “This is someone’s right” when he wishes for or makes use of some thing.29

The text is of some importance in the early history of rights theories since it is apparently the first time a formal distinction had been made between ius as meaning law and as meaning a subjective right (though the word had often been used in both senses in previous writings). Its importance here is that Marsilius defined this second meaning of ius also in terms of command, prohibition, and permission. Ius then in this second sense is nothing other than what is willed by the active precept, prohibition, or permission of the legislator, and this is what we earlier called the passive meaning of those words. . . . And what we previously called lawfully permitted (licitum).30 28. Ibid., 2.12.5, 267, “omne factum iuxta legis preceptum aut permissionem, vel omissum iuxta legis prohibicionem aut permissionem licite factum vel omissum est et licitum dici potest.” 29. Defensor, 2.12.10, 269, “Dicitur enim ius secundo modo de omni humano actu, potestate vel habitu acquisito . . . conformiter iuri dicto secundum priorem significacionem. . . . Secundum hanc significacionem soliti sumus dicere hoc ius alicuius esse, cum rem aliquam iuri primo modo dicto conformiter vult aut tractat.” 30. Ibid., “Ius igitur dictum hoc modo secundo, nil aliud est quam volitum

134  Fourteenth-Century Variations Thus the content of a precept, prohibition, or permission of a legislator could constitute a right for the subject.31 As I indicated, the various senses of obligation and permission described by Marsilius conform quite closely to the elementary definitions used in deontic logic and can readily be presented in the form of a modern deontic hexagon (though it did not occur to any medieval thinker to take this step.) One such hexagon, based on a diagram that Hruschka presented in discussing his eighteenth-century author, but substituting the terminology of Marsilius, looks like this:32 Obligatum

Preceptum

Prohibitum

Licitum facere

Licitum non facere

Permissum precepto vel prohibicione vel permissione activa legislatoris, quod quasi preceptum, prohibitum aut permissum passive pridem diximus. Et est hoc eciam quod prius licitum dicebamus.” 31. Annabel Brett, whose work as a translator of the Defensor pacis has given her an unusual sensitivity to the nuances of the author’s language, has emphasized the differences between Marsilius’s ius and the modern idea of rights. See her “Politics, Right(s) and Human Freedom in Marsilius of Padua,” Transformations in Medieval and Early Modern Rights Discourse, edited by V. Mäkinen and P. Korkman (Dordrecht: Springer, 2006). Brett was right of course in that Marsilius’s ius does not have the same range of connotations as modern “right.” But there is considerable overlap. If we suppose that a man has acquired the blameless habit of digging in his garden on Saturday afternoons, it would not strain modern usage too far to say that he has a right to the habit and a right to the act of digging and a right to exercise his power to dig. 32. Hruschka, Deontologische Sechseck, 18.

Marsilius of Padua  135 In this diagram Permissum is understood in a broad sense as including optional behavior, permission to either perform or omit some act (and in this sense as opposed to obligation), and also as permission to perform commanded acts or omit prohibited ones. Michael Moore, again using the same basic operators as Marsilius, though of course without any reference to the medieval author, presented another modern hexagon that brings out in more detail the senses in which Marsilius used the word permissio: 33

O (A)

O (~A)

P (A)

P (~A)

~O (~A)

~O (A)

In this diagram the solid lines indicate entailment, the hatched ones indicate contradiction, and the dotted ones indicate contrariety. Moore used the diagram for a different purpose but it can serve to illustrate the text of Marsilius. Moore also inquired whether supererogatory acts (also mentioned by Marsilius) could be incorporated in a deontic figure. It proved that this was possible but not in a hexagon; it required a much more complex dodecagonal diagram.34 33. M. S. Moore, “Liberty and Supererogation,” Jahrbuch für Recht und Ethik 6 (1998): 111–43 at 117. Here again P represents permission in a broad sense of the term. OA represents a command, an obligation to perform act A, and O(~A) represents a prohibition, an obligation to omit act A. The permissions implied by a command or prohibition respectively are given as ~O~A, there is no obligation to omit act A, and ~O(A), there is no obligation to perform act A. P, taken as referring to optional behavior, implies no obligation either to perform act A or omit it; in relation to command or prohibition it permits the required act. 34. Ibid., 126.

136  Fourteenth-Century Variations The ideas of Marsilius on the nature of permissive law were not taken up and developed by contemporary jurists or philosophers, though medieval logicians were as adroit as modern ones in manipulating concepts. If the idea had occurred to any contemporary logician to substitute obligation and permission for necessity and possibility in a system of modal logic, I think that he and his fellows would soon have been exploring the paradoxes that arise in systems of deontic logic with the same zest that they brought to the consideration of their own sophismata. But this is mere counterfactual speculation. The more relevant task for a historian is to explain how Marsilius did come to form his distinctive ideas. Fortunately he gave us a clear answer to the question. As he stated at the outset, the ideas on permissive law were presented in order to facilitate the discussion of Franciscan poverty that Marsilius next presented.

Permissive Law and Perfect Poverty The chapters of the Defensor pacis dealing with the Franciscan question have sometimes been regarded as an unwarranted intrusion into his work, but it is now understood that they formed an intrinsic and important part of Marsilius’s overall argument.35 The author’s purpose was to attack all the worldly pretensions of the contemporary church. He had argued at length against the church’s claim to worldly power; it was fitting, then, to continue with an attack on its worldly wealth.36 Marsilius therefore argued, with an abundance of scriptural references, that Christ and the apostles had given an example of a life characterized by perfect poverty. He next concluded from this that the successors of the apostles, the bishops 35. This was pointed out by J. Quillet, La philosophie politique de Marsile de Padoue (Paris: Vrin, 1970), 203. See also M. Damiata, “Funzione e concetto della povertà evangelica in Marsilio de Padova,” Medievo 6 (1980): 411–30; G. Gonzalez, “‘The King of the Locusts Who Destroyed the Poverty of Christ’: Pope John XXII, Marsilius of Padua, and the Franciscan Question,” in The World of Marsilius of Padua, edited by G. Moreno-Riano, 65–88. 36. Marsilius’s motivation was different from that of Ockham. Ockham’s defense of the Franciscan cause led him to attack the papacy; Marsilius’s attack on the papacy led him to defend the Franciscan cause. It was a case of “same enemies, different animus.”

Marsilius of Padua  137 and priests, ought to follow a similar way of life, and pointed out with some colorful rhetoric that this was evidently not the case. But an adequate defense of perfect poverty required more than rhetoric. Marsilius therefore prefaced his argument with the technical definitions that we have considered concerning the various meanings of the term “permission.” It was still necessary for him to define the “perfect poverty” that he intended to defend. Here he turned to the language of the current Franciscan dispute. As regards worldly goods a perfect person would exercise only a “simple use of fact” (simplex usus facti) without any kind of ownership or any legal claim to anything.37 Pope John XXII maintained that such a way of life was impermissible and indeed impossible. Marsilius set out to prove that a life of perfect poverty was possible and certainly permissible because it was in accord with the permissions of divine and human law. A key word in the ensuing discussion was licitum, “licit” or “lawfully permitted,” a term that Marsilius had introduced earlier in his preliminary definitions. The word occurred dozens of times in the few pages devoted specifically to the technicalities of the poverty dispute. Marsilus also brought into play all the distinctions and definitions that he had carefully provided beforehand— the term ius as meaning either right or law, the possibility of conflict between divine and human laws, and all the different senses of “permission”—permission granted by some law, permission implied by command of the law, and permission conceded tacitly because the legislator made no determination concerning the relevant act. Marsilius opened his discussion with an assertion that any licit act must be in accordance with ius in the two senses he had defined, as law or as right. In a translation of the passage one can only use the two different English words to convey the author’s meaning where Marsilius used only ius. [N]o one can licitly make use of any temporal thing . . . without right (ius) or without having any right (ius) in it, taking ius in the first and second significations. For every act not commanded or permitted by law (ius) is not licit (licitum) as is evident from the definition of the word licit.38 37. Defensor, 2.13.3, 277: 2.13.5, 279. 38. Ibid., 2.13.1, 275, “rem aliquem temporalem . . . non potest aliquis licite

138  Fourteenth-Century Variations The author added that one could use a thing in a manner that was licit according to divine law but not according to human law and vice-versa.39 The two laws often overlapped in their precepts, prohibitions, and permissions but sometimes they disagreed. Marsilius next went on to maintain that one could licitly use something in accordance with law by permission of the law without having any power to claim it against others. His first argument relied on a permission conceded by both divine and human law. If a person licitly acquired something, say by gift or legacy or hunting or fishing or by his own labor in some licit work, then he acquired a licit power both to use the thing and to claim it as his own. But, according to human and divine laws, anyone could renounce a right introduced in his own behalf. Marsilius did not give specific references to any such laws, but the permission to renounce a right was included in the Digest of Justinian.40 And the counsels of Jesus to renounce all worldly wealth, cited by Marsilius later in the chapter, provided examples from divine law. The argument concluded that, since there were two distinct powers, a person could licitly renounce ownership of a thing without renouncing the power to use it. In that case the power granted by ius “in its second signification” would be the same as the friars’ “simple use of fact.”41 In another argument from permissive law Marsilius maintained that one could use and even consume something with the permission of the owner without ever acquiring ownership of it.42 But the assertion that use could be separated from every kind of ownership was precisely what John XXII denied. To buttress his argument Marsilius therefore turned to another kind of permission that he had earlier defined. The simple use of things was both obligcontractare sine iure seu non habens ius in ea . . . dictum secundum primam et secundam iuris significacionem. Nam omne factum non preceptum aut permissum iure fieri, est non licitum, ut ex diffinicione liciti cuilibet evidenter apparet.” 39. Ibid., 2.13.2, 275. 40. Ibid., 2.13.3, 276–77. See Digest 50.17.69. 41. Ibid., 277, “Poterit igitur . . . tali dominio renunciare . . . non renunciata potestas utendi. . . . Et vocari solet ab aliquibus simplex facti usus sine ius utendi.” 42. See 2.13.8, 281, “Quod autem ea licite utatur apparet ex liciti diffinicione, quoniam lege permissum est unicuique uti aliena re eciam usque ad consumpcionem, si ad hoc interveniat dominantis eam consensus expressus.”

Marsilius of Padua  139 atory and licit, lawfully permitted, because it was in accord with a mandate of divine law. It was permitted because it was commanded. Marsilius argued here that one could licitly take a vow to renounce ownership but could not licitly vow to renounce the actual use of things. Use and ownership were therefore separable. The first point was proved by the various counsels of Jesus concerning renunciation of wealth, the second by a command of divine law. To abstain from all use of things would be tantamount to suicide and so contrary to the divine precept, “You shall not kill.” The use of things was therefore obligatory and could not be renounced.43 In a modern formulation the principle involved here declared that, “If the negation of an act is forbidden, the act itself is obligatory.”44 And, for Marsilius, as for the modern author, what was obligatory was also permitted. The arguments considered so far referred to acts that were expressly commanded or permitted by some law. But Marsilius also needed his other kind of permission, the general permission implicitly conceded for acts that were neither commanded nor prohibited. This argument came into play at a later point in the discussion where Marsilius was considering specifically the poverty of Christ. An earlier Franciscan argument had conceded that Christ did sometimes own property, but not when showing “the way of perfection”; he did so only to “condescend to the weak,” showing by his example that ownership of property was permitted to them and not contrary to divine law. However, the Franciscan dissidents had abandoned this argument by the time Marsilius wrote, and he undertook to refute it. According to this argument, he wrote, Christ should have given examples of all the acts that were permitted so that he would not seem to condemn such acts. But Marsilius treated this as absurd. It would imply, for instance, that Christ ought to have married to show that he did not condemn the married state, and so through a whole range of permitted acts. The real teaching of Christ, Marsilius declared, was that the only thing necessary to achieve salvation was to obey the 43. Ibid., 2.13.5, 279, “Quod autem . . . simplex facti abdicari nequeat pro quolibet tempore satis apparet . . . talis abdicacio est prohibita lege divina . . . ubi Christus aliqua precepta legis antique confirmans ait: Non occides etc.” 44. Wright, “Deontic Logic,” 3.

140  Fourteenth-Century Variations commandments of the law. It was therefore unnecessary and unfitting for Christ to give examples of all the acts that the law did not command or forbid in order to show that they were permitted to Christians; such things did not need a special permission conveyed by an example of Jesus.45 Marsilius was relying here on the principle, “What the law does not command it permits.” Marsilius returned to another of his earlier distinctions, this time between acts permitted by human law and those permitted by divine law, at a later point in the Defensor where he considered possible objections to his arguments. One of them ran like this. Since a man vowed to perfect poverty had renounced all right of ownership, anything in his physical possession was a res nullius, something that was owned by no one. But, according to civil law, such a thing belonged to whoever first acquired it.46 It seemed, then, that anyone could lawfully snatch away anything in the possession of the perfect one even if the latter were unwilling to part with it. This problem recurred in later centuries and various solutions were offered. Marsilius relied simply on his distinction between human law and divine law. Seizing the goods held by one who did not assert a legal claim to them could be permitted by human law but it would be condemned by divine law as a mortal sin that led to eternal damnation.47 When the Defensor pacis first began to attract widespread attention among modern scholars, Marsilius was often presented as a prophet of modernity, primarily because of the political theory of Discourse I. But, in studying our particular theme, one is reminded also of how intimately his thought was associated with specific problems of his own age. The arguments that Marsilius put forward concerning permissive law were all related to the current controversy concerning evangelical poverty. 45. Defensor, 2.13.37, 298, “Pari racione concludi potest, ipsam exercuisse omnia permissa . . . Christus expresse fecit intelligere, quod observacio mandatorum sufficiebat ad vitam eternam. . . Ideoque non omnia permissa Christum opportuit aut decuit exercere, ne statum eiusmodi exercentium dampnasse videretur.” 46. See Digest 41.1.3, 47. Defensor, 2.14.19, 317, “Quod si tamen humana iura hoc permitterent . . . quinimo peccat sic faciens mortaliter, commmitens lege divina prohibitum sub pena dampnacionis eterne.”

Marsilius of Padua  141 It is relatively easy to place Marsilius’s teaching on permissive law in its immediate context, more difficult to set it in a broader historical framework, though the Defensor pacis certainly had a long and interesting afterlife.48 The work was translated into French and Italian during the fourteenth century; during the fifteen century Nicholas of Cues made use of it in his great conciliar treatise. Some Protestant thinkers of the Reformation admired Marsilius’s Erastianism and his antipapal stance. A first printed edition of the Defensor was produced at Basel in 1522, and translations into English and French appeared later in the sixteenth century. However, later thinkers who referred to the work of Marsilius were interested only in his ecclesiology and political theory. His teaching on obligation and permission seems to have aroused no interest among his contemporaries or immediate successors although, as Hruschka showed, similar doctrines recurred among the German professors of Naturrecht in the eighteenth century. The history of the Defensor pacis can serve as a reminder that, in considering the intellectual achievement and potentialities of any age, we should pay some attention to ideas that “fell by the wayside” as well as those that inspired at once some new tradition of thought. 48. See G. Piaia, Marsilio de Padova nella Riforma e nella Contrariforma. Fortuna ed interpretazione (Padua: Antenore, 1977); S. Simonetta, Marsilio in Inghilterra. Stato e chiesa nel pensiero politica inglese fra XIV e XVII secolo (Milan: LED, 2000).

7

Johannes Andreae

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 involved and he never published any commentaries on the relevant decretals of Pope John XXII though he had ample opportunity to do so. Yet he was led by a different route to investigate some of the same problems that the other two had discussed concerning permissive law and especially concerning the relationship between natural law and human positive law.

1. On Andreae’s life and achievement see the Introduction of Stephan Kuttner to Ioannis Andreae in quinque Decretalium libros novella commentaria (Turin: Bottega d’Erasmo, 1963) (reprint of the 1581 edition).

142

Johannes Andreae  143

The Problem of Usury The particular issue that led him to consider these matters was the practice of usury. And the central question he asked concerning it was: “Whether a usurious contract can be permitted in any law.”2 It was a pertinent question. All the intricate late medieval controversies about usurious and nonusurious contracts dealt at least as much with what was permitted by natural law as with what was prohibited. According to the teaching of the church, usury—the taking of any interest on a loan—was forbidden by both the Old and the New Testaments. A passage of Deuteronomy (23:19–20) permitted the Jews to exact usury from enemies but not from one another. Psalm 14 suggested a more general prohibition when it described a just man as one “who does not put out his money at usury.” In the New Testament the words of Jesus at Luke 6:35, “Love your enemies . . . lend, hoping for nothing in return,” were also interpreted as a divine prohibition of usury. A usurious contract was further said to be contrary to natural law since it engendered fruits from something (money) that was naturally unfruitful. Finally, usury had been condemned by many church councils, beginning with the First Council of Nicea and continuing through a series of medieval synods.3 Yet, in spite of all this, usury was clearly permitted in Roman civil law, still taught as a foundation of legal studies in universities throughout Europe— and most of all at Johannes Andreae’s own university of Bologna, traditionally the greatest center of civil law studies.4 Moreover, the problem did not concern only academic jurisprudence. In everyday medieval life the practice of usury was widely tolerated by civil authorities in spite of the condemnations of the church. 2. Ioannis Andreae . . . in titulum De regulis iuris novella commentaria (Venice: Apud Franciscum Franciscium, 1581), fol.62r, n.4. This work of Johannes, commonly known as the Mercuriales was a commentary on the title De regulis iuris of the Liber Sextus, promulgated by Boniface VIII in 1298. Here Johannes was commenting specifically on Reg. 4, Peccatum. 3. The canon of Nicea prohibited only clerics from engaging in usury but it could be argued that the text of Psalm 14, cited in the canon, imposed a more general prohibition. 4. Roman law fixed the maximum rate of interest on loans at 12 percent, later reduced by Justinian to 6 percent in most cases. (See Code, 4.32.26.2.)

144  Fourteenth-Century Variations In the lifetime of Johannes himself these condemnations were renewed in the decree Ex grave of the Council of Vienne (1312). The decree complained that some communities, offending against God and neighbor, had introduced statutes that not only permitted usury but also enforced usurious contracts. It declared that henceforth any city officials who approved such contracts or judged according to them would incur a sentence of excommunication. And, finally: “If anyone shall presume to assert pertinaciously that the practice of usury is not sinful, we decree that he shall be punished as a heretic.”5 Evidently Johannes had raised a sensitive issue when he asked whether usury could be permitted by any law. The problem was not new; it had been considered by generations of theologians and canonists.6 But Johannes addressed it in some new ways. He was not asking primarily whether natural law could permit usury. The answer to that—a negative answer—seemed evident to him. The more interesting question was whether natural law could permit something intrinsically evil to be tolerated in secular law, or whether such toleration must be regarded as necessarily in conflict with natural law. Aquinas had raised the same issue when, arguing that many vices could be tolerated by human law, he posed an objection to his own point of view: “Human law is derived from natural law. All vices conflict with natural law. Therefore all vices should be restrained by human law.” This of course was not his own opinion, but Aquinas responded here only with a terse quotation from Augustine which simply stated that civil laws tolerated many things that divine providence punished.7 Johannes would seek to explain in more detail how this state of affairs could be justified. 5. The canon of Vienne was incorporated into a later collection of canon law known as the Clementines (Clem. 5.5.1). Johannes’s glosses on Ex grave and on the title De usuris of the Liber Sextus did not discuss the issues concerning permissibility treated in the later work considered above. On Johannes’s distinctive contribution to the scholastic theory of usury see J. T. Noonan, The Scholastic Analysis of Usury (Cambridge, Mass.: Harvard University Press, 1957), 65–67. 6. See, e.g., the views of Peter Comestor, Peter Cantor, William of Auxerre, Alexander of Hales, and Thomas Aquinas in B. Nelson, The Idea of Usury: From Tribal Brotherhood to Universal Otherhood, 2nd ed. (Chicago: University of Chicago Press, 1969), 10–14. For early canonistic views on this question see T. P. McLaughlin, “The Teaching of the Canonists on Usury,” Mediaeval Studies 1 (1939): 81–147 at 84–87. 7. Summa theologiae, 1.2ae.96.2 ad 3.

Johannes Andreae  145 The argument that he presented was rather tortuous and repetitive, and much of it dealt with technicalities concerning usurious contracts that need not detain us here; but Johannes also explored two themes that are relevant in considering the permissions and prohibitions of natural law and other legal systems. He presented a new analysis of the different varieties of permission and applied the analysis in turn to natural law, canon law, and civil law. Also, he offered a new and complex account of how an evil like usury could be permitted in civil law without violating the natural law and canon law that prohibited the practice. When Johannes discussed usury in civil law he always referred to the relevant texts of Roman law. But it seems clear that he also had in mind the practical situation of the commercial cities of his own day as described in Ex grave. He wanted to affirm his own pristine orthodoxy by vigorously denouncing the evil of usury while still leaving some room for maneuvering to the city officials who had to cope with the practical situation. He needed, therefore, to reconcile the widespread toleration of usury by civil authorities with the current provisions of church law.8 Before answering his primary question—whether usury could ever be permitted—Johannes raised a series of subquestions or “doubts” of which two were of particular relevance for our theme. They were (1) Can usury be permitted or tolerated on account of some good that arises from it or some greater evil that it averts? And, (2) Does civil law contradict natural law and canon law by permitting usury when the other two laws prohibited it?

Three Modes of Permission The first of the questions raised a familiar issue. The idea that a lesser evil could be permitted to avoid a greater one was widely accepted and classifications of the different types of permission often included a “permission of toleration.” But Johannes set the old 8. Discussions of usury were concerned especially with the mutuum, a loan contract. There were various other contracts where a person received more than the principal laid out that were not considered usurious. A major problem for theologians and canonists was to distinguish between the different types of contract.

146  Fourteenth-Century Variations theme within a new framework by providing yet another classification of different kinds of permission. For a clear understanding of this matter it must be known that concession can be understood in three ways, in one way as simple permission that indulges and excuses from punishment, as was said at Dist.4 c.6, where on the word venia (mercy) the gloss says that this is to be understood as regarding mercy but not as regarding guilt.9

The text of the Decretum that Johannes cited was from the letter of Pope Gregory I mentioned earlier. The pope had learned that some people had an unseemly custom of feasting greedily on the day before the Lenten fast began. The pope allowed the custom to continue “out of mercy” lest something worse take its place. So far Johannes was alluding to some traditional lines of argument. The notion of a permission that remitted punishment but not guilt was common in earlier writings, often deployed in discussions about the divorce permitted in Deuteronomy. Also, Aquinas had used the argument that an evil might be permitted to avoid a greater evil or for the sake of some good that could come from it when he discussed the toleration of Jewish rites in Christian societies.10 Johannes used the same example when he presented his second mode of permission, but at this point he began to introduce his own new kind of classification.The second kind of permission was called permissio tollens impedimentum, permission removing an impediment. According to Johannes, this was the kind of permission that tolerated the Jewish practices. It might seem similar to the first kind, he wrote, but it was really different because it not only allowed the Jews to celebrate their own rites but forbade Christians to interfere with them.11 In this way it added something to the first kind of permission. Johannes had introduced a significant innovation here. Earlier ways of classifying permissions had typically focused on the kind of act that was permitted, whether it was good or evil or indifferent. Johannes shifted the em9. De regulis, fol.64r, n.17, “simplex permissio, dimittens vel indulgens penam.” 10. Summa theologiae, 2.2ae.10.11. 11. De regulis, fol.64r n.17, “permissio tollens impedimentum secundum quem modum (iudaei) inter nos habitantes permittuntur ab ecclesia in observantia sui ritus . . . ista secunda plus facit . . . removendo impedimenta christianorum, qui vellent impedire observantiam dicti ritus.”

Johannes Andreae  147 phasis to the relationship that was established between the one who received the permission and other persons. When the second kind of permission was granted by law, the permissee was not only free to act in accordance with the permission; others were obliged to respect his freedom. The third kind of permission was permissio praestans iuvamentum, a kind of permission where the church provided actual help in the exercise of the permission that was conceded. The example that Johannes gave here was the case where the church permitted a cleric guilty of a capital offense to be executed by the lay power. This permission was related to the second one as the second was related to the first. It added something new.12 It not only took away the penalty that would normally follow from the offense of killing a cleric as in the first kind of permission and removed any impediment to the execution as in the second kind; it also assisted the lay power in using the permission that had been granted by degrading the criminal from his clerical status and handing him over for punishment. Equipped with these distinctions Johannes returned to his main question—whether usury could be permitted by any law to achieve some good end or avoid some evil. He therefore went on to consider three types of law, natural, canon, and civil. As regards natural law, Johannes wrote, there could be no doubt that this law ought not and could not permit any usurious contract.13 Anything simply contrary to a law could not be conceded by that same law, otherwise the law would contradict itself; but a usurious contract was contrary to natural law as something of its nature intrinsically evil. Moreover, since usury was contrary to natural law, it must also be contrary to divine law since natural law was derived from divine law.14 Johannes was not arguing here that natural and divine law could never be permis12. Ibid., “permissio praestans iuvamentum, secundum quem modum ecclesia permittit quandoque clericus occidi a potestate saeculari et haec permissio se habet ad secundam sicut secunda ad primam.” 13. Ibid., fol.64r, n.19, “si ista quaestio fiat per ius naturale, non debet esse dubium, quod dictum ius nullo modo debet, vel potest concedere contractum usuarium.” 14. Ibid., “ius naturale est a iure divino derivatum, ergo quicquid est contra ius naturale, necessario erit contra ius divinum.”

148  Fourteenth-Century Variations sive. His three modes of permission were presented as applying to all laws in general; and the permissions of the Old Testament—to divorce a wife for instance—were well known and widely discussed by both theologians and canonists. His point was rather that usury was exceptional, a crime of such a nature that natural law could never permit it. This point was made more explicit when Johannes turned to a consideration of canon law and asked whether this law could permit usury in order to avoid some greater evil or promote some good. His answer was again a simple negative.15 Canon law, which he later described as a sort of explication of divine law, could not go against the teachings of the Old and New Testaments; it could not permit usury in any of the three modes of permissive law that he had described. De facto, canon law did prohibit usury; it did threaten and inflict punishment for the offense; it did not protect or lend any support to the practice. Arguing against the view that usury might be permitted to promote some good end, Johannes wrote, citing a text of Pope Alexander III (who in turn quoted Augustine), that just as one could not lie even to save the life of another, so too one could not commit the sin of usury even to redeem the life of a captive, though this was the greatest good that could come from a usurious contract.16 Earlier, Johannes had acknowledged that canon law did sometimes permit an evil to avoid a greater one (as in the case of Gregory I and unseemly feasting), but now he insisted that the same argument could not apply to the case of usury. To prove this, he dilated at length on the evil of usury and concluded that to engage in it was the worst of sins. This may seem an unlikely judgment, but Johannes defended it vigorously. Usury, he wrote, showed contempt for God, for nature, for scripture, and for law. In short, Johannes concluded, canon law could not tolerate the evil of usury in any way because there was no greater evil that could be avoided by permitting it.17 He thus preclud15. Ibid., “Sed si fiat ulterius quaestio de iure canonico . . . dicendum est simpliciter quod non.” 16. Johannes cited Decretales 5.19.4 which referred to a text of Augustine in the Decretum at C.22 q.2. c.14. 17. De regulis, 64v, n.22, “non apparet aliquod maius in ipso quod per ipsum valeat evitari.”

Johannes Andreae  149 ed two of the recognized grounds for legally permitting some evil— there was no sufficient good that could ensue from permitting usury and no greater evil that could be avoided. There remained the difficult case of the Roman civil law that clearly did permit usury. Johannes first suggested that the civil law tolerated usury only in the first mode of permission, by a “simple” permission that merely left the offense unpunished.18 But he objected at once that this position apparently could not be maintained; the civil law actually lent assistance to usurers by providing for the enforcement of usurious contracts. It was possible, Johannes next argued, that the original texts of civil law had been corrected by later imperial legislation, and to support this view he cited a decree of the emperor Justinian approving the canons of Nicea which had included a prohibition of usury; but Johannes deferred the matter for discussion in his response to the other main question that he had raised earlier— whether civil law was opposed to canon law and natural law.19

Conflict or Harmony? In considering this question Johannes had to discuss the apparent conflict between the treatment of permission in different kinds of law, natural, civil, and canon, all of which were regarded as authoritative. He addressed the issue by presenting two lines of argument. The first asserted that the differences between civil and canon law in their treatment of usury did not necessarily imply that the two laws were in conflict with one another. The other maintained that it was not unfitting for civil law and canon law to include different kinds of prohibitions and permissions. Johannes presented the first problem like this: It is asked whether civil law can obviate canon law or whether there is such a concord between these laws that what is contrary to one is necessarily contrary to the other; and whether, consequently, from the fact that 18. Ibid., fol.64r, n.19, “Si autem fiat dicta quaestio per ius civile, dicendum est, quod dictum ius potest concedere et concedit praefatum contractum, concessione accepta primo modo, prout est idem, quod simplex permissio.” 19. Ibid.

150  Fourteenth-Century Variations a usurious contract is prohibited by canon law it is necessarily prohibited by civil law.20

The question that Johannes raised here is similar to one envisaged in the earlier canonistic discussions centering around the words ius and fas. If a permission in one system of law conflicted with a prohibition in another, did the two kinds of law necessarily contradict one another? But Johannes had in a way reversed the original question. The Decretists had asked whether a permission of natural law—to pass through another’s field for instance—would conflict with a prohibition of positive human law. The later canonist was concerned with a case where a prohibition of natural law conflicted with a permission of civil law. Johannes first presented some arguments, which he intended later to refute, asserting that civil law ought to prohibit usury; and in doing this he put the whole question in the context of natural law. Civil law and canon law both presupposed natural law as the ground from which they took their origin, he wrote, but a usurious contract was in no way permissible in natural law; therefore it should not be permissible in civil law.21 Again, civil law and canon law were both subordinate to divine law, but if usury were in any way permissible in civil law then civil law would be opposed to divine law, for the law of the emperor could not abolish the law of God.22 Finally, the emperor had commanded that the canons of the Council of Nicea be observed; but the council had prohibited usury; therefore the civil law ought not to permit it.23 But Johannes went on to dismiss all these arguments; in fact civil law evidently did permit usury as he had previously shown. Johannes responded to his objections by arguing that, although positive law was founded on natural law, there was an important difference between the two in the kind of prohibitions that they imposed. Passing lightly over a point that would be a matter of dispute in later times, he asserted that a prohibition of natural law was only 20. Ibid., fol.64v, n.24 21. Ibid. 22. Ibid. 23. Ibid. Johannes finally responded to this objection with the argument cited below in n.34.

Johannes Andreae  151 heuristic in that it taught us to recognize evil and to detest it but did not itself impose penalties. On the other hand, a prohibition of positive law, either civil law or canon law, carried a threat of punishment.24 It was fitting, therefore, that canon law should punish with canonical, this-worldly penalties a practice that natural law already condemned. There was no conflict of laws, only a supplementing of natural law with a provision of positive law. This did not explain, however, why civil law should not similarly deter the sin of usury by also supplementing the natural law with penal sanctions. Johannes’s response to this issue takes us for a while into a different world of thought. He presented an argument that departed from canonistic technicalities and depended almost wholly on Aristotle’s Ethics, with a supporting reference also to Augustine. Civil law and canon law were both grounded in natural law and both sought to lead men to a common good, Johannes argued. But they differed in one important respect. Civil law sought to lead humans to a common good consistent with life in a civil society, and this sort of common good was promoted and preserved by legal justice and civil concord as Aristotle had shown. But canon law was a kind of explication of divine law and it aimed at a common good for humans considered as members of a society directed toward God, living according to faith, looking toward an afterlife.25 And this sort of common good could not be achieved by legal justice and civil concord alone; it required further a sort of celestial friendship or mutual charity. Accordingly, there were two kinds of virtue associated with the two systems of law. The principal virtue that civil law aimed at was justice along with civil concord, but the principal virtue that canon law sought to induce was charity.26 24. Ibid., “Nam prohibitio iuris naturalis fit per solam vitii cognationem, quia docet ubi sit vitium cognoscendum et inclinat ad ipsum detestandum, prohibitio autem iuris positivi fit per poenae comminationem.” 25. Ibid., fol.64v n.25, “ius civile intendit dirigere in bonum commune, secundum quod congruit humanae societati civiliter viventi. . . . Ius vero canonicum intendit dirigere in bonum commune secundum quod congruit humanae societati quae non solum vivit civiliter, sed etiam regulariter secundum fidem, in Deum tendendo, et vitam aliam expectando, nam . . . ius canonicum sit quaedam explicatio iuris divini.” 26. Ibid., “Quapropter sicut potissima virtus, ad quam conatur inducere ius ci-

152  Fourteenth-Century Variations From this it followed that the two laws should differ in what they prohibited and permitted. The proper function of civil law was to prohibit with threat of punishment especially those vices that injured civil concord and, in general, to prohibit other vices when the prohibition did not impede civil concord and did promote the goods of justice and virtue. However, when any prohibition would injure civil society, the civil law should refrain from such a prohibition and leave any punishment to God, as Augustine had testified.27 Applied to the present case this meant that civil law did not have to prohibit usury because the practice did not injure society. At another point Johannes raised the question whether, in some exceptional cases, a usurious contract might be considered permissible in any system of law because it could be advantageous to both parties and, arguing in favor of this view, he wrote that anything advantageous to society could be regarded as “licit and permissible.” But Johannes responded that this was true only when gaining the advantage did not conflict with good and honorable conduct while usury was intrinsically evil.28 It was permitted only in civil law and then only in the sense that it was not officially prohibited. The situation was different with canon law because this law, to attain the end it aimed at, had to prohibit all vices. Canon law, as an explication of divine law, sought to direct the multitude of the faithful toward God, which could come about only through charity, and all mortal sin was opposed to charity.29 Therefore canon law should forbid all such sins. Throughout the argument Johannes assumed that the practice of usury could be beneficial to civil society, that it could contribute to the common good. But he also insisted that evvile, est ipsa legalis iustitia, sive civilis amicitia. Ita potissima virtus ad quam conatur ius canonicum est illa coelestis amicitia, quam charitatem vocamus.” 27. Ibid., fol.65r, n.28, citing Augustine’s De libero arbitrio, 1. 5 (PL 32, 1228), “lex . . . quae regendis civitatibus fertur, multa concedit ac impunita relinquit, quae per divinam providentiam iudicantur.” This was the same text of Augustine that Aquinas quoted at Summa theologica 1.2ae.96.2 ad 3. Johannes also cited Aristotle’s Ethics here at n.27. 28. Ibid., fol.65r, n.31. 29. Ibid., n.29, “contractus usuarius . . . est . . . necessario prohibitus in iure canonico, quia ius canonicum ex fine quem intendit habet necessario omnia vitia prohibere.”

Johannes Andreae  153 ery act of usury was sinful; he argued that, even if a man made a usurious loan in order to save a starving people from death, he still acted sinfully.30 It was a case of “Private Vices, Public Virtues” centuries before Mandeville. Arguments of this sort had been available ever since Grosseteste’s translation of Aristotle’s Ethics had appeared in 1249 and a considerable body of philosophical and theological discussion on the common good and individual morality had been produced in the late thirteenth century—many examples were discussed in Kempshall’s book on the common good in the later Middle Ages.31 The argument of Johannes seems to resemble most closely that of Albertus Magnus who considered both lying and usury as forms of behavior that were intrinsically sinful and that yet could be considered consonant with civic virtue if they served the common good. Johannes was evidently familiar with some of this literature, so his argument was not altogether original. But Johannes used the argument in a new way by interweaving it with his own new classification of the modes of permission. After presenting his Aristotelian argument Johannes returned to his starting point and explained that the case for permitting usury in civil law rested finally on an understanding of his three modes. In the light of the forgoing arguments, he wrote, it was unreasonable for jurists to argue about whether usury was permitted and ought to be permitted in civil law (though he himself had just been arguing intricately about the matter for several pages) because both points of view could be true. Those who say that a usurious contract is and ought to be permitted in civil law speak truly if by permission they mean that no punishment is threatened or inflicted; but they speak falsely if by permission they mean removing impediments to those who engage in usury or giving help to them.32

A similar argument applied to those who took the opposite point of view. 30. Ibid., fol.65v, n.33. 31. See M. S. Kempshall, The Common Good in Late Medieval Political Thought (Oxford: Clarendon Press, 1999). 32. De regulis, fol.65r n.29.

154  Fourteenth-Century Variations If they say that a usurious contract is not permitted in civil law and they understand this as referring to the second and third modes of permission they speak truly. If they refer to the first mode they speak falsely.33

The answer to the question whether civil law could obviate canon law depended on a similar distinction. If to obviate implied contradiction the answer to the question was certainly negative, for in that case the civil law would be invalid, of no account.34 But if to obviate meant simply to omit and neglect some evil, leaving its punishment to canon and divine law where it properly belonged, then the answer could be positive. Civil law could permit usury only by omitting to punish it, not by removing impediments or giving help to the practice. There still remained one problem. The civil law as it existed in the Code of Justinian clearly did facilitate the practice of usury and lend support to it, for instance by enforcing usurious contracts. According to an earlier argument of Johannes, Justinian had corrected this when he commanded that the canons of Nicea prohibiting usury be observed; but this implied that usury should be prohibited in civil law, which was not the conclusion that Johannes wanted to reach. His final attempt to explain the matter ran like this. When the emperor commanded that that the decrees of Nicea be obeyed, [H]e did not intend that things prohibited by the council should be permitted by civil law as regards removing impediments or providing aid, but he also did not intend that anything prohibited by the council must be prohibited in civil law with threat of punishment.35

This may seem to be just an improbably hopeful hypothesis that attributed to Justinian a foreknowledge of Johannes’s own three modes. But Johannes was really trying to formulate in abstract terms the conditions that must obtain within any system of law if it were to tolerate usury in a fashion compatible with the canon law of his own day. The outcome of Johannes’s argument was that natural law in no way permitted usury but it did permit canon law to impose penalties 33. Ibid. 34. Ibid., fol.65r n.30, “ubi lex civilis contadicit iure canonico, nullius est momenti.” 35. Ibid.

Johannes Andreae  155 for usury and it also permitted civil law to refrain from doing so. The classification of the three modes of permission served to resolve the difficulties that arose on the way to the conclusion. In introducing the works of Johannes Andreae, Stephan Kuttner observed that the canonist’s immense erudition, and his scholastic mode of discourse that may seem merely pedantic to us, should not blind us to the real originality of his thought. And there is indeed much that is original in the work we have considered. Johannes provides another illustration of the various ways in which the idea of permission could be deployed in different legal systems. In doing so he presented, not just another treatment of the technicalities of usurious contracts, but a substantial essay on the jurisprudence of permissive law. Earlier authors had argued that divine and natural law permitted human positive law to tolerate some evil in order to avoid a still greater evil. Johannes could not use that argument after his assertion that there was no evil greater than usury. Accordingly, in considering whether such an act could be permitted in any system of law, he did not rely on the common doctrine but on his own arguments concerning the different kinds of prohibition and permission in different legal systems. Johannes also made his own contribution to the discussion of the common good and the legal justice and natural justice that could contribute to it. Since Grosseteste’s translation of Aristotle’s Ethics had appeared this topic had been a matter of debate among philosophers and theologians. But the discussion of Johannes was in a way more down-to-earth than theirs. Johannes was concerned not only with the relationship between positive law and natural law, but also with the two kinds of positive law, church law and secular law. These were real laws that regulated the lives of medieval people, with courts and judges to enforce them. And sometimes they differed from one another. Conflict of laws was a practical problem for jurists as well as a theoretical one for philosophers. Because Johannes chose to discuss natural law specifically in relation to the practice of usury he was concerned to emphasize a particular prohibition of natural law rather than the area of permis-

156  Fourteenth-Century Variations siveness that the law allowed. He was not denying that natural law could be permissive, only that this particular behavior must always be impermissible in natural law although it was tolerated in civil law. And the consideration of this dichotomy led Johannes to make his most important contribution to the idea of permissive law in general, his new categorization of the three modes of permission, in which the legal consequences for the recipients depended on the kind of permission that the law granted. Johannes’s primary distinction between a “simple permission” and one that required others to refrain from impeding the exercise of the permission, introduced a topic that would reappear in a different form and become important in early modern discussions of natural law and natural rights.

PA RT I V

Indifferent Things: Adiaphora in the Church

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 were concerned primarily with permissions and prohibitions inherent in the divine law of scripture, but in the work of Richard Hooker that is most relevant for our inquiry and that I want especially to con-

 

157

158  Adiaphora in the Church sider, the argument was set in a framework of earlier natural law thinking that included the idea of a permissive natural law. Before turning to Hooker, though, we need to consider the background of the disputes that he inherited and two earlier phases of their development, the “Adiaphorist Controversy” in Germany and the “Admonition Controversy” in England.

8

Reformation Adiaphora: Lutherans and Anglicans

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 not all things are expedient.”2 The sixteenth-century disputes were concerned with the rites and ceremonies of the Catholic church rather than the ceremonial law of Moses but similar issues arose. Among the Protestant reformers it became a matter of bitter controversy to determine what was permitted in Christian worship and what, among the things permitted, was expedient. The revival of the old Greek word adiaphora in these disputes may reflect the humanistic learning of the age, but the issues that emerged were different from any that the old Stoics had pondered. Questions like these arose. What did scripture command and what 1. Acts 16:3. Galatians 2:3.

2. 1 Corinthians 10:22.

 

159

160  Adiaphora in the Church did it permit in the conduct of Christian worship? Were practices not mandated in scripture implicitly permitted or implicitly forbidden? If there was an area of permitted practices, how was it to be defined? Must some things that all agreed were indifferent in themselves be excluded from church services? And who was to decide such questions, the individual churches, or some sort of church council, or perhaps the civil magistrate? Underlying everything else was a visceral hatred among the more radical reformers of various vestiges of Roman Catholic worship that had persisted in the services of the reformed churches. Hence, the disputes among Protestants often took the form of apparently trivial disagreements about the external details of Christian worship; but such disputes were only surface manifestations of deeper conflicts. Catholic doctrine maintained that the Christian faith handed down from the apostles was expressed in both scripture and in the tradition of the church, while Protestants insisted that the whole content of the faith was conveyed in holy scripture. The disputed ceremonies and usages—such things as kneeling at communion, the wearing of ecclesiastical vestments, the ringing of bells and lighting of candles at Mass—had all grown up as part of the tradition of the Roman Catholic church. To Protestant critics they seemed to be affirmations of a false faith. Evidently there was no moral significance in the bare act of ringing a bell or lighting a candle. It became necessary to decide, therefore, whether such things could be tolerated in Protestant services as things indifferent (adiaphora, res mediae), or whether their continued use implied an endorsement of the Catholic doctrines that had been associated with them. Or whether, at least, they might mislead ignorant common people into supposing that this was the case.

Melanchthon and Flacius Illyricus These issues boiled to the surface in the Adiaphorist Controversy that broke out among German Lutherans shortly after the death of Martin Luther himself in 1546.3 In the following year Emperor 3. The events leading up to the Adiaphorist Controversy and its aftermath are discussed in F. Bente, Historical Introductions to the Formula of Concord (St. Lou-

Reformation Adiaphora: Lutherans and Anglicans  161 Charles V won a decisive victory over a coalition of Protestant princes, and then set out to impose Roman Catholicism on all his German territories after first promulgating a definition of church doctrine known as the Augsburg Interim. (The Interim was so called because the Council of Trent, then in session, was expected to produce a final statement of Catholic faith.) The Augsburg Interim made only very minimal concessions to the Protestants—use of the cup in communion and marriage of priests—while reaffirming all the major Catholic teachings and practices that the Protestants had rejected.4 When the theologians at Luther’s old university of Wittenberg in Saxony refused to accept the Interim, the emperor gathered an imperial army to invade Saxony and loosed a reign of terror against Protestant pastors in the territories he already controlled; many were driven from their churches and some were murdered. The ruler of Saxony, Elector Maurice was in a dilemma. He needed to conciliate his Protestant subjects, but he wanted at all costs to avoid an imperial invasion of his lands. Maurice therefore pressed the theologians of Wittenberg, now led by Melanchthon, to produce a new formula that they could accept and that would also satisfy the emperor. After a series of conferences, Melanchthon and his colleagues eventually agreed to a declaration of doctrine that was approved by Maurice and the Saxon estates in a meeting at Leipzig.5 Melanchthon always maintained that this “Leipzig Interim” preserved the core of the reformed faith in that it affirmed the doctrine of justification by faith; but the Leipzig document also imposed on the churches of Saxony many traditional Roman Catholic practices including the authority of bishops and their right to ordain ministers, the celebration of the Eucharist according to Roman rites, the wearing of a surplice by the officiating minister, and the restoration of is: Concordia Publishing House, 1965) and R. A. Kolb, “Historical Background of the Formula of Concord,” in A Contemporary Look at the Formula of Concord, edited by R. D. Preus and W. H. Rosin (St. Louis: Concordia Publishing House, 1978), 12–87. 4. The text is printed in Das Augsburger Interim von 1548 nach den Reichstagsakten deutsch und lateinisch, edited by J. Mehlhausen (Neukirchen: Neukirchner Verlag, 1970). 5. Printed in Corpus Reformatorum, edited by C. G. Bretschneider and H. E. Bindseil (Halle u. Braunshweig: Schwetschke, 1834–60), Vol. 7, 25–64.

162  Adiaphora in the Church the feast of Corpus Christi, when the consecrated bread was carried through the streets in a procession to be venerated by the people. Melanchthon regarded the imposition of such practices as a “harsh servitude,” but he gritted his teeth and accepted them all as adiaphora, things indifferent in themselves, not explicitly commanded or forbidden in scripture.6 The Leipzig Interim did not settle the disputed questions but at once gave rise to a new conflict. The Interim was finally accepted on December 24, 1548. Soon a parody of a Christmas hymn was in circulation, mocking the new declaration. “An Interim so shameful / Is born to us today / From shameful Adiaphorists / To lead the poor astray.”7 Protests poured in to Wittenberg from other Lutheran churches. The pastors of Berlin wrote to ask, perhaps sarcastically, whether all the rites and ceremonies of the papal church were now to be regarded as adiaphora, and called upon the Wittenberg theologians to explain what they meant by the term.8 In a subsequent letter the pastors of Hamburg again demanded an explanation and provided a long list of practices that they regarded as “false adiaphora that perverted the religion of Christ” and that were “sinews of popish superstition and abuse.”9 Melanchthon replied that he did not treat as adiaphora the particular practices that the pastors condemned—such things as magical consecrations and adoration of statues—and he argued that the one essential thing was to preserve the true faith on which they all agreed.10 He insisted that he had accepted the Leipzig Interim only to avoid a devastation of the churches of Saxony such as had occurred in other parts of Germany. “We must judge prudently,” he wrote, “whether to endure the servitude or leave the church6. On Melanchthon’s attitude see M. Rogness, Melanchthon: Reformer without Honor (Minneapolis: Augsburg, 1969). For a defense of his position see C. L. Manschrek, “The Role of Melanchthon in the Adiaphora Controversy,” Archiv für Reformationsgeschichte 48 (1957): 165–82. For a favorable view of Melanchthon’s adversary, Matthias Flacius Illyricus, see O. K. Olsen Matthias Flacius and the Survival of Luther’s Reform (Wiesbaden: Harrosowitz Verlag, 2002), with extensive bibliography of primary and secondary sources for the Adiaphorist Controversy. 7. Quoted in Olsen, Flacius, 126. 8. Corpus Reformatorum, 7, 292–96. 9. Ibid., 366–82. 10. Ibid., 382–86.

Reformation Adiaphora: Lutherans and Anglicans  163 es to be deserted or handed over to wolves.”11 Earlier writers on the permissive law of scripture had sometimes maintained that it was permitted to tolerate a lesser evil in order to avoid a greater one. Melanchthon was now arguing in the same way. But in his Loci communes, written many years earlier, he had said, “Christian liberty is liberty of conscience and the servitude of Christians is servitude of conscience.”12 Melanchthon’s critics held that he was abandoning his own principles. The most vehement opponent of the Leipzig Interim was Matthias Flacius Illyricus, a former student of Melanchthon and then his colleague at Wittenberg. Taking up the theme of the Hamburg letter he argued in an influential work, On True and False Adiaphora, that things indifferent in themselves became charged with significance when they were incorporated in church services.13 He maintained that simple poor folk who did not understand doctrinal subtleties took in only what was set before their eyes; if they saw a minister dressed in popish vestments and performing popish ceremonies they would readily assume that the faith itself had not changed.14 To wear a surplice was an indifferent act in itself but to put on a surplice when it was commanded as a necessary adjunct of divine worship was to betray the Christian faith. Flacius was a strident, often abusive controversialist, but he saw more clearly than the relatively mild and irenic Melanchthon that the adiaphora embedded in external rituals were themselves a sort of visual language, a language that could convey meaning; and he insisted that, if the meaning they conveyed were contrary to the reformed faith, they must be utterly rejected. Flacius’s treatise consisted largely of invective directed against “Adiaphorists” and “Interimists”, along with denunciations of the many popish practices that he disapproved of; but in the more constructive parts of the work he provided a much more detailed analy11. Ibid., 386. 12. Loci communes, edited by H. Engelland in Melanchthons Werke, vol. 1 (Gütersloh: H. Bertelsmann Verlag, 1952), 63. 13. Liber de veris et falsis Adiaphoris in Omnia latina scripta . . . contra Adiaphoricas fraudes et errores aedita (Magdeburg: Michael Lotter, 1550), n.p. 14. Ibid., sig. Bb3.

164  Adiaphora in the Church sis of the different kinds of adiaphora than Melanchthon had offered in his replies to critics. Flacius also presented a very influential account of the relationship between adiaphora and the divine law of scripture. Flacius noted that there were adiaphora in everyday Christian life, things permitted but not commanded, and he cited the relevant texts of St. Paul concerning such things as the choice of marriage or celibacy and the eating of meat sacrificed to idols or abstaining from it. He also distinguished between private adiaphora, such things as private prayer and fasts, and public adiaphora in the conduct of church services. In this latter realm too there were indifferent practices that could vary from time to time and place to place.15 But, in keeping with the principle of sola scriptura that was at the heart of the reformed faith, Flacius maintained that the Bible was not altogether silent about such matters. Although scripture did not define every detail of how church services should be conducted it did lay down in general terms what could be considered acceptable. Specifically, Flacius insisted, anything not expressly commanded must be in accordance with Paul’s injunction that all things in the church be done decorously, in due order, for edification, and for the glory of God.16 In light of these principles, Flacius formulated his own definition of the “efficient causes” of true adiaphora. They were: (1) The general command of God that all be done decorously. (2) The free uncoerced will of the church acting for the glory of God and for edification. (3) The judgment of pious and intelligent men to whom the church entrusted the institution of such adiaphora.17 Flacius insisted on the principle that there could be no adiaphora “in case of confession or scandal”; that is, no practice could be considered indifferent if it were imposed coercively at a time when a confession of faith was demanded under threat of persecution and an acceptance of the disputed practice would give scandal to weaker Christians.18 This principle was incorporated into the Lutheran Formula of Concord that effectively ended the controversy in 1577. It was a victory for the Flacian position. 15. Ibid., sig. X2. 17. Ibid., sig. X4.

16. Ibid., sig. X3. 18. Ibid., sig. Y3.

Reformation Adiaphora: Lutherans and Anglicans  165 In addition to his polemical writings Flacius also produced a major work of church history in which he praised individuals who, all through the ages, had helped to sustain the true faith by resisting the claims of the papacy. He found space in it for both William of Ockham and Marsilius of Padua.

Cartwright and Whitgift While the Adiaphorist Controversy was drawing to a close in Germany a similar dispute known as the Admonition Controversy had broken out in Elizabethan England.19 This controversy had been initiated by the appearance in 1572 of a Puritan pamphlet called “An Admonition to the Parliament.”20 The publication of the Admonition soon stimulated an extended debate between Thomas Cartwright, a learned Puritan who favored a presbyterian form of church government, and John Whitgift, Master of Trinity College and a future Archbishop of Canterbury.21 In 1573 Whitgift published an Answer to the Admonition; Cartwright responded with a Reply to the Answer that evoked a Defense of the Answer from Whitgift, followed by a Second Reply from Cartwright.22 As in the Adiaphorist Controversy in Germa19. For earlier English controversies concerning vestments and ceremonies see J. H. Primus, The Vestments Controversy (Kampen: J. H. Kok N.V., 1960) and B. J. Verkamp, The Indifferent Mean: Adiaphorism in the English Reformation to 1554 (Athens, Ohio: Ohio University Press, 1977). The latter book covers more ground than the title suggests. 20. Printed in W. H. Frere and C. E. Douglas, eds., Puritan Manifestoes: A Study of the Origins of the Puritan Revolt (London: SPCK, 1954), 1–39. 21. The two had clashed earlier at Cambridge. Whitgift used his authority as Vice-Chancellor of the University and Master of Trinity to deprive Cartwright of his positions as Lady Margaret’s Professor of Divinity and as a fellow of Trinity. 22. The controversy is conveniently presented in The Works of John Whitgift, edited by John Ayre, 3 vols. (Cambridge: Parker Society, 1851). These volumes present the main points of Cartwright’s arguments along with Whitgift’s responses. For subsequent appraisals see the seminal work of P. Collinson, The Elizabethan Puritan Movement (London: Cape, 1967); J. S. Coolidge, The Pauline Renaissance in England (Oxford: Clarendon Press, 1978); P. Lake, Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker (London: Unwin Hyman, 1988). As these works make clear, the Elizabethan conflicts were not only between conformists and Puritan critics. The Puritans themselves were divided between those, like Cartwright, who acknowledged the authority of queen and Parliament to impose a form of church order on the Church of England (though

166  Adiaphora in the Church ny, the principal matter at issue was the persistence of Roman Catholic practices in a reformed church, this time with particular reference to the authorized Book of Common Prayer. Many of the same arguments that had been used in the Lutheran dispute were deployed again in England, sometimes with direct reference to the works of Continental reformers. Again, the issue that most concerns us was at the center of the dispute, the question whether various adiaphora, practices indifferent in themselves that scripture did not expressly command, were implicitly permitted or implicitly forbidden. Only the most extreme dissenters, mainly Lollards and Anabaptists, insisted rigorously that anything not expressed in scripture must be excluded from Christian worship, but Elizabethan Puritans sometimes used the same language, perhaps incautiously. The Admonition, for instance, urged Parliament “to employ your whole labour . . . not only in abandoning all popish remnants . . . but also in bringing in and placing in God’s church, those things only which the Lord himself in his word commandeth.”23 This seems uncompromising. Everything not commanded was to be excluded. But further on the Admonition used different language in addressing this issue. It condemned government of the church by archbishops and bishops not only for not being commanded in scripture but as “plainly in God’s word forbidden.” It complained that the Book of Common Prayer was full of abominations, “picked out of that popish dunghill the Mass book,” that were “against the word of God.”24 Many practices were criticized as not “according to the word of God” or not “agreeable to the written word of the almighty”—such things as kneeling at communion, the observance of saints’ days, the administration of baptism by women, the wearing of cope and surplice.25 Fithey objected strenuously to the form actually established), and separatist groups, themselves divided into various sects, who denied this authority and asserted the claims of individual churches and sometimes of the individual conscience. On this see E. H. Shagan, “The Battle for Indifference in Elizabethan England,” in L. Racaut and A. Pyrie, eds., Moderate Voices in the European Reformation (Aldershot, U.K.: Ashgate, 2005), 122–44. 23. Frere and Douglas, Puritan Manifestoes, 8. 24. Ibid., 11. 25. Ibid., 21. The Catholic practice of kneeling at communion was condemned again at 24, 35. It was a common complaint of Puritans; but in an earlier contro-

Reformation Adiaphora: Lutherans and Anglicans  167 nally the Admonition observed that practices “smelling of their old popish priesthood” were repugnant to scripture even if they were not “expressly forbidden by plain commandment.”26 These various usages in the Admonition provided ample material for the debate between Whitgift and Cartwright. The dispute between them has been called “elusive” because the adversaries seemed determined to disagree with one another even in matters where they shared a great deal of common ground. It can also be exasperating at times because the contestants were willing to support their points of disagreement with fanciful, “far-fetched,” and even “babyish” interpretations of scriptural texts.27 Sometimes it requires a considerable effort of the historical imagination to understand that these were two learned men debating an issue of deep concern to both of them. Whitgift began by attacking the Admonition’s demand that only things commanded in scripture be permitted in the conduct of church services. This he saw as the “chief and principal ground” of the whole argument but also as “a great absurdity.”28 He accused his adversaries of a logical error in that they grounded their case on a negative argument that was not provable; to point out that various rites and ceremonies used in the Anglican church were not commanded in scripture did not prove that they were therefore forbidden. Cartwright set out at first to defend the literal truth of the Admonition’s language so he denied that Whitgift’s objection was relevant to the point at versy Cranmer had pointed out that the apostles reclined at supper so that, if the Puritans really wanted to imitate them they should take communion lying down. (Verkamp, Indifferent Mean, 65). There is a certain irony in the changing fashions in ecclesiastical adiaphora. Nowadays Roman Catholics take communion standing, in both kinds, often receiving the host and cup from the hand of a lay person, frequently a woman, sometimes a woman wearing trousers. An Elizabethan Puritan would probably have considered this much too radical a reform of popish practices. He might also be disconcerted by the recent debate in the Anglican community as to whether homosexuality is an adiaphoron or a moral evil. 26. Ibid, 21–22. 27. The words are from Whitgift rebuking Cartwright. (Works of John Whitgift, I, 179, II, 12). Cartwright accused Whitgift of “ignorance” and “childishness” and found his arguments “very absurd” (Works, I, 184n, 194n.) Such epithets are scattered throughout the controversy. 28. Works of John Whitgift, I, 176, 190.

168  Adiaphora in the Church issue. The argument would be valid, he declared, only if it was applied to some human authority. Given the frailty of humankind, we could never be sure that a human teaching concerning some matter said everything that needed to be said or that it was necessarily free from error. But this was not true of the divine authority of scripture. There God had set out “a perfect form of his church.” And so it followed that what the Lord commanded there must be done and what he did not command must not be done.29 Whitgift replied that this was true as regards things essential to salvation but not as regards external and indifferent matters. He acknowledged that nothing should be accepted in the church as being essential to the faith unless it was expressly stated or clearly implied in scripture.30 But as regards ceremonies and church order it was necessary only that nothing should be done that was against the word of God, not the least thing, he added later.31 Cartwright was not appeased. Some ceremonies, such as the Lord’s Supper and baptism, were not indifferent but essential to salvation, he argued, and so was the institution of a proper kind of church government.32 This last point was very important to Cartwright. He was convinced that the references to presbyters and elders in the New Testament had established by divine command a presbyterian form of government for the church. Later in the controversy Whitgift and Cartwright would debate this at great length, but at this point they continued to argue about the extent of scriptural authority in external ceremonies. Whitgift agreed that the Lord’s Supper and baptism were essential to salvation but argued that the “accidental” ceremonies that accompanied them pertained only to “comeliness and decency” and that they could be changed in varying circumstances. Similarly he acknowledged that the church must have some form of government but he denied that scripture had defined one certain and perfect form that 29. Ibid., 176, 177. 30. Ibid., 178, “either in manifest words contained in scripture, or thereof gathered by necessary collection.” 31. Ibid., 180, 188. 32. Ibid, 181, “as though matters of discipline and kind of government were not matters necessary to salvation . . . the sacraments of the Lord’s Supper and baptism are ceremonies . . . and necessary to salvation.”

Reformation Adiaphora: Lutherans and Anglicans  169 could never be altered “in respect of time, person, or place.”33 Later he argued that it would be a violation of the Christian liberty that included “free use of indifferent things” to maintain that every detail of Christian life and worship must be justified out of scripture.34 Cartwright persistently argued that Whitgift sought to “shrink the arms of scripture” or “pin it in so narrow a room.”35 In one unusual flight of rhetoric he declared that scripture did not provide only enough to cover the nakedness of the church but also “bracelets and rings and other jewels to adorn her.”36 But still, from this point on Cartwright began to shift the ground of his argument. He was not asserting that every ceremony and usage accepted in the church must be expressed in scripture, he wrote, but that men were not free to do just as they pleased in such matters. (On this Whitgift wrote, “Hold you there and we shall soon agree.”)37 Cartwright’s point now was that all the details of Christian worship should indeed be directed by the word of God, but in the sense that they must follow the general rules laid down in scripture and, citing the relevant texts of St. Paul, he defined these rules regarding ceremonies and church order as (1) they must offend no one, (2) all must be done with order and comeliness (3) for edification and (4) for the glory of God.38 Whitgift pointed out that any sort of church order would offend some contentious spirits but he did not reject Cartwright’s rules; rather he wrote, “truly we refuse them not.”39 Cartwright’s general argument here and his specific rules closely followed the teachings of Flacius Illyricus and were probably directly inspired by them. (The work of Flacius had been partially translated into English in 1566 and was well known among English Puritans.) At a later point in the controversy, when Whitgift defended ecclesiastical vestments as something intrinsically indifferent and Cartwright condemned them as “monuments of idolatry,” Whitgift in turn borrowed the language of Flacius, perhaps gleefully, to chide Cartwright like an erring student. “Howbeit, that you may know something the 33. Ibid., 183, 184. 35. Ibid., 190, 187. 37. Ibid., 195. 39. Ibid., 196, 198.

34. Ibid., 194. 36. Ibid., 187. 38. Ibid., 195.

170  Adiaphora in the Church more, you must learn to put a difference between adiaphora vera et pseudoadiaphora; ‘those things that be indifferent indeed, and those that are falsely accounted indifferent.’”40 But to return to the earlier stage of the controversy: It seemed that Whitgift and Cartwright had at last reached an agreement about the extent of scriptural authority in regard to the disputed matters. Indeed, Whitgift wrote, “But seeing that you and I agree on this . . . it remaineth to be considered wherein we differ.”41 But, as it turned out, they had not really reached an agreement even on the original question at issue. Further on, Whitgift wrote that, as regards ceremonies and church order, it was enough “if they were not repugnant to the scriptures.”42 Cartwright objected to the phrase “not repugnant.” It was not enough, he argued, to say that such things were not repugnant to scripture because they must also “be grounded by the scripture,” and he referred to the general rules that he had derived from St. Paul.43 But Whitgift had already agreed to those general rules and from this point on he seems to have been genuinely puzzled about the nature of Cartwright’s complaint. He wrote that he could see no great difference between saying “not repugnant to the word of God” and “according to the word” and, with a note of exasperation accused Cartwright of arguing “rather against the person than the cause.”44 In his Second Reply Cartwright made a final attempt to clarify the ground of his disagreement with Whitgift and, I think, succeeded at last in articulating the basic difference between the two as he saw it. He repeated Whitgift’s argument that there seemed no difference between “not repugnant to the word” and “according to the word” but continued, [Y]et he that so saith that certain things must be done not against the word of scripture, that he will not also accord that they must be done according to the word of scripture, giveth thereby to understand that there is some star or light of reason or learning or other help whereby some act may be well done, and acceptably unto God, in which the word of God 40. Works of John Whitgift, II, 38. 42. Ibid., 236, 239. 44. Ibid., 240, 243.

41. Works of John Whitgift, I, 200. 43. Ibid., 238.

Reformation Adiaphora: Lutherans and Anglicans  171 was shut out and not called to counsel, as that which either could not or need not give any direction in that behalf.45

Cartwright was not just quibbling about words. He was arguing for a fundamental tenet of the reformed faith, the all-sufficiency of scripture as an authority that needed no external “star or light of reason” to guide men to a Christian way of life. Luther and Calvin knew of course that humans were endowed with reason and they acknowledged that reason could discern practical rules of morality; but they had no thought of introducing into their theology of salvation or their ecclesiology a natural law like that of Aquinas, grounded on human reason and on the inclinations of a human nature that they regarded as utterly depraved and corrupt. Luther even held that adhering to natural morality was sinful in unregenerate humanity. It availed man nothing; it could not lead to Christ; it was not acceptable to God. Cartwright was arguing in a similar fashion. He knew that one could argue rationally in debating questions of church order; his whole argument with Whitgift illustrates the fact; both adversaries at times accused each other of violating some elementary principle of Aristotelian logic that they both accepted. But Cartwright insisted that the whole argument must be conducted within the framework of scripture “according to the word of God,” and he thought that Whitgift was being evasive and did not truly accept this essential principle. Hence, when Hooker joined the debate some years later the issue at stake was not only whether various disputed aspects of the established church polity should be accepted as “true adiaphora” or rejected as “popish remnants.” Some deeper issues had emerged in the debate—the relationship between the commands and permissions of scripture, and the problem of how the area of permissiveness could be determined. And, underlying that was the ancient problem of defining the right relationship between faith and reason. 45. Ibid., 191n. see Coolidge, Pauline Renaissance, 10.

9

Richard Hooker

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 his own complex view of continuity and change in the church’s history. Hence his work provides, not only a major contribution to a stormy contemporary debate, but also a significant chapter in the history of natural law thinking.

Modern Evaluations Hooker published the first four books of his major work, Of the Laws of Ecclesiastical Polity, in 1593 and a fifth book in 1597. The remaining three books were published only posthumously and after a long delay in 1648 and 1661.1 For many years afterwards Hooker’s 1. Subsequent citations of the Laws refer to The Folger Library Edition of the Works of Richard Hooker, edited by W. Speed Hill, 6 vols. (vols. 1–5, Cambridge,

172

Richard Hooker  173 work was received with general approbation. Tories admired Hooker as a defender of the Anglican establishment and Whigs came to respect him as a forerunner of Locke. But more recently, in the latter part of the twentieth century, new questions arose about the value and coherence of his writings.2 In an early reevaluation of Hooker’s work, Passerin d’Entrèves called attention to the very extensive influence of medieval scholastic writings, especially those of Aquinas, on Hooker’s theory of natural law.3 This led to doubts about the compatibility of these medieval Catholic teachings with the reformed faith that Hooker professed. (In his own lifetime Hooker was criticized for undue reliance on “Schoolmen, Philosophie, and Poperie.”)4 Also, the authenticity of the posthumous works, that had long been challenged, was finally established, and this too stimulated doubts about the overall coherence of his thought. Peter Munz, emphasizing Hooker’s rationalism, argued that he moved inconsistently from a moderate Thomism at the beginning of his work to a radical secularism, inspired by Marsilius of Padua, at the end of it.5 Gunnar Hillerdal, arguing in a different Mass.: Bellknap Press, 1977–90; vol. 6, Binghamton, N.Y.: Medieval and Renaissance Texts and Studies, 1993). I have modernized the spelling of quoted passages to avoid an impression of quaintness not intended by the author. In footnote references to Hooker’s texts I have given the volume number of the Folger edition (henceforth cited as FLE), then the book, chapter, and paragraph numbers of the text, followed by a page reference, thus FLE 2, 5.9.3, 44. 2. Good surveys of modern approaches to Hooker’s work are provided by the introductions to each book of the Laws presented in vol. 6 of the Folger edition. See also A. S. McGrade, ed., Richard Hooker and the Construction of Christian Community (Tempe, Ariz.: Medieval and Renaisance Texts and Studies, 1997), with substantial bibliography. 3. A. Passerin d’Entrèves, The Medieval Contribution to Political Thought (Oxford: Oxford University Press, 1939) 4. A Christian Letter, cited in FLE 4, 64. 5. P. Munz, The Place of Hooker in the History of Thought (Westport, Conn.: Greenwood Press, 1971). According to Munz (110), Hooker “went from St. Thomas to Marsilius.” The argument is based on disputable interpretations of both Marsilius and Hooker and it has not found much favor with later scholars. I think, though, that Hooker probably did know the Defensor pacis. His treatment of permissive law, as well as of the church-state issue discussed by Munz, resembles that of Marsilius. But there is no certain evidence of direct borrowing. The one reference to Marsilius by name in the Laws has been shown to have been taken at second hand from another source.

174  Adiaphora in the Church way, maintained that Hooker’s rational natural law could not be reconciled with the reformed doctrines concerning grace and salvation, and that Hooker therefore turned to “a kind of irrationalism” or fideism.6 Stephen McGrade, who has written most discerningly about Hooker’s natural law, defended the Anglican theologian as a consistent thinker, but observed that he had been accused of both hypoand hyperrationalism, hyper- because of his emphasis on reason in discussing religious affairs and hypo- because his theory of law rested ultimately on a supposed divine ordering of human affairs and the whole world of nature.7 Moreover, from the 1960s onward, historians writing on Hooker often treated his Puritan opponents more sympathetically than had previous, mainly Anglican, authors, an approach that again called into question the earlier favorable evaluations of his work. Among the modern accounts we can now find characterizations of Hooker as a serene thinker who moved beyond the bickering wrangling of his own time into “the majestic realm of eternal verity” and, on the other hand, as “a partisan thinker intent on window dressing the command structure of English society.”8 The truth is no doubt somewhere between these two extremes, though the latter view seems unduly harsh. It is true that after the serene, above-the-fray first book of the Laws, the rest of the work was devoted mainly to refuting the views of Hooker’s Puritan adversaries, but Hooker’s polemics were mild compared with those of some of his contemporaries. And it is not always wrong to defend an established order of things, even an imperfect established order, especially when we know, as Hooker knew, that all orderings of human affairs fall short of absolute perfection.9 6. G. Hillerdal, Reason and Revelation in Richard Hooker (Lund: Lund Universitets Arskrift, 1962). 7. A. S. McGrade, “The Coherence of Hooker’s Polity: The Books on Power,” Journal of the History of Ideas 24 (1962): 163–82. 8. A. Pollard, cited in FLE 6, pt 1, 82n.3. R. Eccleshall, “Richard Hooker and the Peculiarities of the English: The Reception of the ‘Ecclesiastical Polity’ in the Seventeenth and Eighteenth Centuries,” History of Political Thought 2 (1981): 63– 117 at 63. 9. FLE 2, 5.9.2, 43, “. . in polity as well ecclesiastical as civil, there are and will be always evils which no art of man can cure.”

Richard Hooker  175

Aquinas and Hooker Our own concern is with a narrower theme, the permissive features in Hooker’s theory of natural law, but this is an important aspect of his thought that ought to be considered in any overall evaluation of his work. Hooker began, in the manner of Aquinas, by first defining law in general and then considering the various kinds of law. He defined law as “any kind of rule or canon whereby actions are framed as law.”10 As a result, as McGrade has several times pointed out, at the outset he distinguished his conception of law from the idea of mere coercive command.11 Hooker then outlined, in a single comprehensive paragraph, the various kinds of law he would discuss. Now that law which as it is laid up in the bosom of God they call eternal receiveth . . . different and sundry kinds of names. That part of it which ordereth natural agencies, we call nature’s law: that which Angels do clearly behold . . . is a law celestial and heavenly: the law of reason that which bindeth creatures reasonable in this world; that which bindeth them and is not known but by special revelation from God, Divine law; human law that which out of the law either of reason or of God, men probably gathering to be expedient, they make it a law.12

Hooker’s doctrine was obviously inspired in part by Aquinas, but there are some significant differences. Hooker, unlike Aquinas went on to distinguish between two kinds of eternal law; the first eternal law was the law of God’s own being, the second was the law that God gave to his whole created universe. Hooker also introduced an angelic or celestial law that was not included in the system of Aquinas. Furthermore, he at first used the term “nature’s law” to mean the law governing the physical universe and a different term, “law of reason,” to mean the law guiding humans as rational creatures. He did not, however, retain this usage. In his later discussions he most commonly used the term “law of nature” to mean just what Aquinas had meant by it, the moral law that could be discerned by human 10. FLE, 1.3.1, 63. 11. See especially his introduction in A. S. McGrade and B. Vickers, eds., Richard Hooker, Of the Laws of Ecclesiastical Polity: An Abridged Edition (London: Sidgwick and Jackson, 1973). 12. FLE 1, 1.3.1, 63.

176  Adiaphora in the Church reason without the light of revelation. He referred, for instance, to “that law of nature, whereby human actions are framed,” and wrote that “the law of nature and the moral law of scripture are in the substance of law all one.”13 Such usages are scattered throughout Hooker’s work. He used the terms “law of nature” and “law of reason,” “light of nature” and “light of reason,” or simply the words “nature” and “reason” indifferently in referring to the rational faculty of humans and the law it discerned. All the references to the law of nature in the following discussion used the term in this way. Hooker’s most striking departure from Aquinas was that, after describing the varieties of law, he introduced a topic that was not included in Aquinas’s classification at all, a discussion of the permissive aspect of natural law, showing how reason could indicate to us not only what was commanded by the law of nature but also what was permitted. Hooker approached the topic with a consideration of human free will, a persistent ground of arguments about permissive natural law. Because humans are made in the image of God, he wrote, they can act freely, unlike other natural agents: “Man in perfection of nature being made according to the likeness of his maker . . . whatsoever we work as men, the same we do wittingly work and freely.”14 In choosing between alternatives and willing one rather than another, humans will what they apprehend as good. But they need reason to guide them to the good. And to will is to bend our souls to the having or doing of that which they see to be good. Goodness is seen with the eye of understanding. And the light of that eye is reason . . . the laws of well-doing are the dictates of reason.15

All this is reminiscent of Aquinas, but Hooker carried the argument to a different conclusion. He went on to define again the word “law,” this time as a directive rule to good action discerned by the judgments of reason. But, in Hooker’s argument, this led on to an explanation that the judgments of reason showed us what was permitted as well as what was commanded. 13. FLE 1, 1.8.6, 86; 3.9.2,237. 15. FLE 1, 1.7.2–4, 78–79.

14. FLE 1, 1.7.2, 77.

Richard Hooker  177 Wherefore the natural measure whereby to judge our doings, is the sentence of reason, determining and setting down what is to be done. Which sentence is either mandatory, showing what must be done; or else permissive, declaring only what may be done; or thirdly admonitory, opening what is the most fitting for us to do.16

Hooker further explained that, within the area of things that were not mandatory but permitted, some were more meritorious that others. Sometimes an act was permitted only because a man might be faced by a choice between evils all of which were not avoidable, and then he was permitted to choose a lesser evil, “as in the matter of divorce among the Jews.”17 But there could also be choices among acts that were all good in themselves though some were better than others. It must be so, Hooker argued, otherwise every person would have to be judged absolutely good or absolutely bad with no degrees of excellence among them.18 In such cases, he continued, we are admonished but not required to choose the best course as when, for instance, the first Christians decided to hold all things in common and St. Paul chose to maintain himself by his own labor rather than be a charge on the church. To anyone who knows the twelfth-century texts that we considered earlier this whole discussion will seem very familiar; those earlier texts also treated natural law as being permissive as well as preceptive and envisaged different degrees of merit among the permitted acts. Hooker’s argument could have been suggested to him by any one of several medieval sources that he knew, or by Augustine’s distinction between acts that were commanded, counseled, or excused.19 Or perhaps Hooker was just introducing a common opinion of his time without any particular source in mind. In the earlier stages of the Admonition Controversy Cartwright had maintained that anything not commanded in scripture was forbidden to the church, and Whitgift had replied that many things were permitted that were not commanded. Hooker argued more em16. FLE 1, 1.8.8, 88–89. 17. Ibid. 89. 18. Ibid. Hooker perhaps had in mind an opinion of the old Stoics. 19. Above, 9.

178  Adiaphora in the Church phatically that whatever scripture did not prohibit it permitted; more importantly, in reformulating Whitgift’s arguments he set them in the framework of his sophisticated jurisprudence of permissive natural law. Hooker was of course much concerned with the permissions of scripture, as in his reference to the familiar case of divorce among the Jews; but he also wanted to show that the permissions that justified the existing practices of the Anglican church were also congruent with the law of nature and reason as it had been understood in a long-established tradition of natural law thinking. Hooker’s teaching on the “permissive” judgments of reason in the passage just considered is therefore of considerable importance in understanding his thought as a whole. Yet it has not been much noticed by Hooker’s modern commentators. The author of the introduction to the first book of the Laws set out to consider in turn each variety of law presented by Hooker but simply ignored the passage referring to permissive law. Cargill Thompson observed that Hooker’s natural law was intended to provide a philosophic basis for “the traditional Anglican concept of things indifferent,” and McGrade noted that Hooker’s positive laws had to conform to “the limits of permissible behavior fixed by antecedent laws”; but neither author developed the theme in further detail.20 Ever since the work of d’Entrèves, scholars have understood that Hooker’s treatment of natural law was much influenced by medieval scholastic teachings, but this particular aspect of the earlier tradition seems to have been overlooked. Some of the neglect may be due to a remark of Hooker himself. After the passage on degrees of goodness in human acts Hooker wrote, “[A] law is properly that which reason in such sort defineth to be good that it must be done.” This could be taken as meaning that the preceding remarks on permission were not really relevant to Hooker’s own conception of law and so could be disregarded in further discussions of it. But this is a misunderstanding. Paul Forte, for instance, in a thoughtful study on Hooker’s theory of law, quoted the text just cited with an added emphasis on the word “must” and con20. W. D. J. Cargill Thompson, “The Philosopher of the ‘Politic Society’; Richard Hooker as a Political Thinker,” in Studies in Richard Hooker, edited by W. Speed Hill (Cleveland: Case Western University Press, 1972), 3–76 at 20: McGrade, “Coherence of Hooker’s Polity,” 174.

Richard Hooker  179 cluded that “only the mandatory sentences of reason can be regarded as true laws.” But his continuing argument seems to contradict what he had just observed. [T]his series of degrees within the law of reason parallels that which Hooker later distinguished within the divine law of scripture . . . which contains both immutable precepts necessary for salvation and indifferent rules that may be adopted or rejected.21

But a law that contains rules that may be adopted or rejected is evidently not wholly mandatory. And elsewhere Hooker wrote of things that are “lawful because permitted.”22 Hooker’s language seems inconsistent at times, but his underlying thought here was coherent. He did indeed maintain that natural law commands us, but also that, in defining what is obligatory for us, the law also indicates what is permissible. And for Hooker this was an important function of law. “What things God doth neither command nor forbid, the same he permitteth,” Hooker wrote.23 And, for him, the law of nature was a part of the law of God. “The light of natural understanding, wit and reason is from God.”24 A recurrent teaching that runs through Hooker’s work held that we need to be guided by both the law of scripture and the law of reason, or law of nature, in following a Christian way of life; and at the core of the argument was the assertion that reason and nature can teach us not only what is demanded of us but also what is permitted. In another discussion Hooker quoted the view of Aquinas that the common and indemonstrable principles of natural law were shaped into specific rules of action by the determinations of human law.25 But he also complemented Aquinas’s argument, perhaps making explicit what was implicit in it, by extending the discussion into a more ample realm of human freedom with his teaching that whatever is not forbidden by natural law is permitted. 21. P. E Forte, “Richard Hooker’s Theory of Law,” Journal of Medieval and Renaissance Studies 12 (1982): 133–57 at 145. 22. FLE 1, 2.4.4, 155. McGrade complained of Hooker’s occasional inconsistencies and lack of intellectual rigor in presenting his arguments in his introduction to Richard Hooker (above n.57). 23. FLE 1, 2.4.4, 154. 24. FLE 1, 3.9.3, 238. 25. FLE 1, 3.9.2, 236.

180  Adiaphora in the Church

Hooker and Cartwright Hooker’s characteristic teaching maintained that both the law of scripture and the law of nature left a realm of indifferent things open to human choice. And the argument could apply on many levels, from the foods we choose to eat to the form of church polity that we choose to establish to the constitutional structure of the state that we choose to institute. A few examples from Hooker’s critique of Cartwright’s views will illustrate his use of this doctrine. One argument started out from a text of St. Paul at Romans 14:23. Quoting Cartwright who in turn was referring to Paul, Hooker wrote, “St. Paul they say is of all other most clear, where speaking of these things which are called indifferent, in the end he concludeth that whatsoever is not of faith is sin.” 26 The words, “Whatsoever is not of faith is sin” had earlier been taken to mean that it was a sin to act against one’s conscience; but Cartwright had argued that the faith was conveyed in scripture and that therefore, among the things called indifferent, anything not commanded in scripture was sinful. Hooker replied that Cartwright’s argument was incoherent. If a thing were commanded in scripture it would not be indifferent; it was the intrinsic nature of things indifferent to be neither commanded nor forbidden but left “free and arbitrary.” Cartwright’s formula, therefore, needed to be extended to explain that an act was sinful only if it were “not commanded of God or permitted with approbation” (emphasis added).27 Hooker next asked how we could know what God did permit, and here the argument shifted from the permissions of scripture to the realm of nature and reason. Hooker mentioned the choice of foodstuffs and clothing; it was necessary that we be nourished and clothed but not that we choose some particular kind of food or dress. And, the argument continued, “[W]e hold these things free in their own nature and indifferent. The choice is left to our own discretion.” 28 A person could bind himself in such matters by a vow, and God could 26. FLE 1, 2.4.1, 151, referring to Romans 14:23. 27. FLE 1, 2.4.4, 154. 28. Ibid.

Richard Hooker  181 restrict our liberty by a direct command as when he forbade the Jews to eat swine’s flesh. But we could be certain that whatever God did not command or forbid “the same he permitteth with approbation.” And Hooker quoted here the text of Corinthians that been commonly cited since the twelfth century in discussions of permissive law. All things are lawful unto me, sayeth the Apostle, speaking, as it seemeth in the person of the Christian gentile for maintenance of liberty in things indifferent: whereunto his answer is that nevertheless All things are not expedient; in things indifferent there is a choice.29

Hooker went on to explain that, in deciding what was most expedient among the things that were “lawful because permitted,” we should be guided by the light of reason, and we could be confident that in doing so we acted in a manner pleasing to God, the author of our rational nature. “The nature which himself hath given to work by he cannot but be delighted with.”30 There could be no sin, then, in choosing freely among things that were known to be indifferent though not commanded in scripture. Cartwright himself had acknowledged that heathens could judge between good and evil by the light of reason, Hooker noted, but he seemed to think that, once God’s word was revealed by the light of scripture, the other light of nature was extinguished, “in such sort drowned that now we need it not.”31 From then onward, therefore, we were permitted to do only what scripture commanded. But, Hooker concluded, to limit human freedom in this way was to make us all like Aristotle’s natural slaves who could be directed by others but could not direct their own lives.32 Hooker’s argument continued with a long discussion on some words of Tertullian, “That is forbidden that is not permitted,” arguing that the words referred to a particular situation and that, taken out of context, they did not convey the real opinion of the church father, but that rather he was “of a clear contrary mind.”33 29. Ibid., referring to 1 Corinthians 6:12. The text at Romans 14:23 from which this whole discussion started also urged gentile converts not to use their freedom in matters of food and drink in such a way as to offend their more scrupulous brethren. 30. FLE 1, 2.4.5, 155–56. 31. FLE 1, 2.4.7, 157. 32. Ibid. 33. FLE 1, 2.5.7, 165–66.

182  Adiaphora in the Church Another discussion on the range of permitted actions that involved both the light of nature and the light of scripture also took as its starting point the free and voluntary nature of human acts. Hooker noted that all such acts could be judged good or evil according to the end to which they were directed, and this is once more reminiscent of Aquinas; but Hooker continued in a different fashion by again considering the different degrees of goodness and the kinds of permission associated with them. Some acts were permitted only in the sense that they were not “disproved or disallowed” by God, and in such cases the light of nature was sufficient to show what was permitted. Some things were permitted in the sense that they were required as necessary to salvation, and here the light of nature had to be supplemented by the light of scripture. (The observation that what was commanded was also permitted was unusual at this time.) Finally, some acts were so pleasing to God, although they were not commanded either by nature or by scripture, that they would earn for those who performed them a greater reward in heaven; and Hooker mentioned again the early Christians’ sharing of all their possessions and Paul’s choosing to live by his own labor.34 A contemporary critic, the author of A Christian Letter, accused Hooker of introducing here the Roman Catholic doctrine of supererogatory works. Hooker responded in a manuscript notation to the text of the Letter. There he reiterated the principle that whatever was not commanded was permitted and noted that this applied to all indifferent acts and not only to the works of outstanding virtue he had mentioned.35

The Constitution of the Church The most important point at issue between Hooker and his Puritan opponents concerned the form of church polity required by divine law. In responding to the Puritan argument that scripture laid 34. FLE 1, 2.8.2–4, 187–88. 35. FLE 4, 25. “For the case is like in all works indifferent . . . you do ill to say that he which maketh anything not commanded allowable establisheth works of supererogation.” Hooker’s reply to the theological point at issue observed that the Roman doctrine made such works “satisfactory” rather than merely meritorious.

Richard Hooker  183 down one particular form of polity (a presbyterian form) Hooker again wove together arguments from the permissions of natural law and the divine law of scripture. Certainly, he noted, no such polity could be good unless God were the author of it. But the intent of God could be known both from scripture and from the law of nature, since that too was founded by God.36 Accordingly, “What the church standeth bound to know or do, the same in part nature teacheth.”37 And in this matter, nature left much to human free choice, to the discretion of the church. Taking up Cartwright’s language about the “rings, bracelets and jewels” with which scripture adorned the church—among which Cartwright included his particular preferred form of church polity—Hooker argued that such things were accessories, like gorgeous attire, not essential to the life of the church. And again Hooker compared the freedoms allowed by scripture with the permissions of nature. “[I]t is no more disgrace for scripture to have left a number of other things free to be ordered at the discretion of the church, than for nature to have left it unto the wit of man to devise his own attire.”38 Hooker again appealed to the law of nature when he took up another of Cartwright’s arguments, asserting that all things in the church must be done according to the word of God in the sense that they must conform to the general rules laid down by St. Paul. Quoting Cartwright again, Hooker wrote, “The rules are these, Nothing scandalous or offensive . . . ; All things in order and with seemliness; All unto edification; finally, All to the glory of God.”39 Such rules were often cited after they had been quoted by Flacius Illyricus and nobody disputed them, but Hooker gave a new twist to the discussion by again introducing the law of nature in its permissive aspect. These general rules, he argued, were not just enactments of positive law; they were rules of natural law, a part of “that law which is written in all men’s hearts.”40 They would be valid whether or not the apostle had proclaimed them. But such natural laws permitted a variety of practices in the church, and the church needed to 36. FLE 1, 3.2.1, 207. 38. FLE 1, 3.4.1, 213. 40. FLE 1, 3.7.2, 217.

37. FLE 1, 3.3.3, 210. 39. FLE 1, 3.7.1, 217.

184  Adiaphora in the Church be guided only by the light of reason in determining which to institute. Seeing therefore those canons do bind us as they are edicts of nature . . . it followeth that sundry things may be lawfully done in the church although no scripture doth command them, but the church only following the light of reason judge them to be in discretion mete.41

Accordingly, [F]ree and lawful it is to devise any ceremony, to receive any order, and to authorize any kind of regiment, no special commandment being thereby violated . . . but decent, tending unto edification, and setting forth the glory of God.42

The author of A Christian Letter complained that, in Hooker’s work, “Reason is highly set up against holy scripture.” Hooker would have vigorously denied that he set up reason “against” scripture, but he did repeatedly maintain that the law of reason, (a law that, as he had earlier explained, could be permissive as well as mandatory), provided a necessary supplement to the divine law of scripture. Hooker emphasized this by vigorously disputing Cartwright’s comment on the “star or light of reason.” But so it is, the name of the light of nature is made hateful with men; the star of reason and learning, and all other such helps beginneth no otherwise to be thought of, than if it were an unlucky comet.43

So far, Hooker had argued that scripture did not prescribe one particular form of government for the church. Later he turned to a defense of the form that was actually established in the Church of England. Toward the end of the fourth book he set out a doctrine that was central to his whole work. Concerning those indifferent things . . . seeing the law of God doth not prescribe particular ceremonies which the Church of Christ may use . . . and . . . it is not possible that the law of nature and reason should direct all churches unto the same things . . . the way to establish such things indifferent . . . must needs be the judgment of some judicial authority drawn

41. FLE 1, 3.7.2, 218. 43. FLE 4, 67; FLE 1, 3.8.4, 221.

42. FLE 1, 3.7.4, 218.

Richard Hooker  185 into one only sentence, which may be a rule for every particular to follow.44

The last words were the most important ones here. As we have seen, the idea that law—divine or natural or human—can be permissive as well as preceptive can be understood in two ways, either as freeing individuals to act according to their own good judgment guided by reason and conscience, or as enabling communities or their duly established public authorities to intitute positive laws that are binding on the whole society and that vary according to circumstances of time and place. Hooker did not deny the ultimate authority of individual conscience. Rather he affirmed it in the preface at the outset of his work. But he thought that conscience could err and that its judgments should be based on sound reason, not on “some probable conceit” or on the “cloud of prejudice” that he saw in his Puritan opponents.45 He maintained, therefore, that the considered judgment of the church was “ground sufficient for any reasonable man’s conscience to build the duty of obedience upon.” In a sort of classic statement of the conservative temperament he added that “equity and reason, the law of nature, God and man do all favor that which is in being.”46 Hooker’s purpose, then, was to uphold the established order of the Church of England. Accordingly, the last two books of the Laws were devoted to detailed defenses of the role of Queen and Parliament in the governance of the church and of episcopacy as an ancient and orthodox institution. One obvious way of defending monarchy and episcopacy was to assert the divine right of kings and bishops, and this became a common teaching among Anglican loyalists in the decades after Hooker’s death. But Hooker himself would have none of it. True to a doctrine that he had asserted throughout his work, he argued that such institutions were permitted by divine and natural law but not mandated by them. In the first book he had pointed out that human societies needed some form of government if they were to avoid endless strife and troubles, then went on to explain crisply how both the preceptive and permissive aspects of natural law shaped the institution of polities. “[We] may not deny but 44. FLE 1, 4.13.7, 332. 46. FLE 1, Preface, 6.3, 32; 6.5,33.

45. FLE 1, Preface, 6.6, 33; 7.2,34.

186  Adiaphora in the Church that the law of nature doth now require of necessity some kind of regiment . . . yet the kinds thereof being many nature tieth not to any one, but leaveth the choice as a thing arbitrary.”47 Hooker also insisted here that, according to the law of nature, the power of establishing positive laws must inhere in the whole society or in some ruling authority to which the power was delegated by consent of the community; but the laws themselves would vary since, as regards positive laws, it was “impossible and against their nature” to be everywhere the same.48 These arguments were carried over to the eighth book, devoted to a defense of the English constitution and especially of the Queen’s role as Supreme Governor of the Church of England. Yet the argument began with an assertion that, “As for supreme power in ecclesiastical affairs, the word of God doth nowhere appoint, that all kings should have it, neither that any should not have it.”49 The ensuing discussion ranged over many historical examples drawn from ancient Israel, Greece, and Rome, and mentioned many types of polity. But the underlying argument remained the same. By nature the power to institute civil laws inhered in the whole body of the commonwealth and “in like congruity” the power to institute ecclesiastical laws inhered in the whole body of the church.50 But in England the same people were both commonwealth and church and so they had found it fitting to confer legislative authority in both spheres on the same institution. In Hooker’s words, “The light of reason doth lead them unto it, and against it, God’s own revealed law hath nothing.”51 And this was consistent with the doctrine that ultimate authority rested with the whole community because Queen and Parliament represented the whole body of the realm; all were present there either in person or through representatives whom they had freely chosen.52 Hooker evidently saw the English constitution as centuries old. He praised the thirteenth-century jurist known as Bracton for defining some of its basic principles and he mentioned the existence of a lim47. FLE 1, 1.10.4, 100. 49. FLE 3, 8.2.5, 335. 51. FLE 3, 8.3.6, 356.

48. FLE 1, 1.10.9, 105. 50. FLE 3, 8.6.1, 386. 52. FLE 3, 8.6.11, 401.

Richard Hooker  187 ited monarchy in England before the Norman conquest; but he was vague about the details of how the constitution had first grown into existence. The situation was rather different when Hooker defended episcopacy in the church. There the whole argument turned on the original founding, the form of church governance that Christ had established for the first Christians. Puritans like Cartwright maintained that the references to presbyters, elders, and doctors that they found in scripture defined a divinely established presbyterian form of church order that was valid for all time. Catholics and many Anglicans maintained, on the contrary, that Christ had instituted episcopacy, rule by bishops, as a permanent model for the church. Hooker wanted to defend the antiquity and apostolic origin of the episcopate; but even here he adhered to his fundamental principle that divine and natural law did not command any particular form of government but permitted the churches to institute the form they found most fitting according to circumstances of time and place. It was necessary that speech be common to all peoples, Hooker wrote, but not that they all speak the same language; and so too it was necessary that all the churches have some form of governance but not that they all have the same form.53 In the preface to the Laws Hooker even praised the form of church polity that Calvin had established at Geneva, a strange procedure it might seem given the subsequent content of the work. But this was a mere tactical ploy. Hooker described in some detail the historical events that had led up to Calvin’s polity and conceded that, in those particular, exceptional circumstances, it was the best available. But, his argument concluded, making the point that had been intended all along, it was impossible to prove “that any one sentence of scripture doth necessarily enforce these things.”54 Hooker did appeal to scripture in explaining the origin of the episcopate, but not as mandating a particular form of church governance that had been instituted from the very beginning. The first apostles were bishops, he argued, ordained by Christ himself, and they appointed other bishops from among the disciples. However, 53. FLE 1, 3.2.1, 207. 54. FLE 1, Preface 2.7, 10.

188  Adiaphora in the Church these first bishops were bishops-at-large, not individual rulers of particular churches like the bishops of Hooker’s own day. Hooker acknowledged therefore that in the very beginning the churches were commonly ruled in a collegiate fashion by groups of presbyters and bishops, with the two terms used interchangeably.55 But, he held, this changed already in apostolic times and, from the first, the example of James who presided over the church of Jerusalem provided an alternative model. Collegial governance led to the rise of factions with ensuing strife and dissensions. The apostles therefore, following the example of James at Jerusalem, began the practice of instituting a single bishop to preside over each church, and soon this became the common form of church governance.56 For Hooker, the first bishops were instituted by apostolic authority, probably by divine inspiration and certainly with divine approbation.57 And yet he still held that, although episcopacy was permitted and approved in the church, it was not commanded by any divine or natural law. It was “a thing allowable, lawful and good,” and “agreeable with the law of nature.”58 But it was not enjoined by “any commandment of the Lord.”59 Episcopacy had been preserved through the ages by the custom of the church because the church had found it to be a good and very fitting form of governance; but the power to change this form inhered always in the church. After all his defense of episcopal power, Hooker warned the English bishops that the church, acting by common consent, could take away that power if ever the bishops became proud and tyrannical.60 Hooker’s treatment of government in church and state provides further examples of conduct that was permitted by natural law but not commanded, and so illustrates again how the notion of permissive natural law could play a significant role in a major religious controversy. It also illustrates another important aspect of his natural law teaching that we can finally glance at. Theories of natural law have often been criticized as ahistorical, but Hooker’s teaching was associated with a sophisticated vision of history. 55. FLE 3, 7.4.1–2, 155–57. 57. FLE 3, 7.5.3, 161. 59. FLE 3, 7.5.8, 168.

56. FLE 3. 7.5.1, 159–60. 58. FLE 3, 7.3.1, 154; 7.11.10, 211. 60. Ibid.

Richard Hooker  189 Hooker was neither a primitivist nor a progessivist. He did not believe that everything that had been done by the apostles in the early days of the church provided a model that had to be imitated for all time; and he certainly did not believe in some ineluctable principle of progress that had led on to the crowning achievements of his own Reformation era. Instead he often wrote in derogatory terms of “this present age, full of tongue and weak of brain.” And, finally, Hooker was not a pure historicist. Although he was very aware of the vicissitudes of history, and the changing judgments they called for, he thought that some things remained true for all time, notably the central doctrines of the Christian faith, and that some institutions rightfully endured for centuries. Hooker certainly understood historical change. He lived in a world full of change, in a society that had recently made a radical break with a thousand years of a Roman Catholic past. But Hooker saw continuities amid all the changes of his time. He held that the Roman church, in spite of all its “gross and grievous abominations,” was still a true church that had preserved “the main parts of Christian truth.”61 Hooker also thought that there was a strong presumption in favor of practices that had been accepted by many people for long periods of time; and on these grounds he defended the retention in the Church of England of various long-established Roman practices that he regarded as indifferent in themselves. Hooker’s underlying thought was that humans lived in varying contingent historical circumstances. Through them all, the divine law of scripture and the natural law of reason provided a constant source of guidance; but these laws were also permissive; they left many things “free and arbitrary” (a favorite phrase of Hooker) so that the individuals or community concerned could choose the best course of action in any situation that might arise. A form of church governance that was fitting for the church in Geneva might not be fitting for the church in England; a law wisely established in one historical context might need to be abolished in a later one. Hooker did not deplore all the variety in church affairs that divine and natural law permitted; rather he rejoiced in it. And here again 61. FLE 1, 3.1.10. 202.

190  Adiaphora in the Church he took up a thought of Aquinas and modified it in his own way. In explaining the variety of roles and offices in the church of his day, Aquinas observed that the one simple perfection of God is manifested in multiform ways among creatures. Hooker echoed the thought but gave it a new historical dimension. [T]he wisdom of God . . . shineth in the beautiful variety of all things, but most in the manifold and yet harmonious dissimilitude of those ways, whereby his church upon earth is guided from age to age.62

Hooker’s natural law allowed for both variety and unity, both continuity and change, both tradition and innovation. 62. FLE 1, 3.11.8, 253.

PA RT V

Natural Law and International Law: Suarez and Grotius

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 discussions of natural law that focused on the intrinsic nature of law itself and also on natural law considered as a ground of international law,

 

191

192  Natural Law and International Law an emerging body of jurisprudence concerned with relations between sovereign states. The discussion of these questions was initiated during the first part of the sixteenth century primarily by Vitoria, a principal founder of the school of Salamanca, a great center of Catholic counter-reformation theology. However both Catholics and Protestants made major contributions to the subsequent growth of thought in these areas. In the following sections I want to consider the work of two of these scholars, one Spanish and one Dutch, one Catholic and one Protestant.

10

Francisco Suarez

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 master. In his treatment of natural law one might say that Suarez was faithful—in his fashion. He often quoted Aquinas and took Thomistic texts as the starting point of an argument, but he carried the argument to conclusions that Aquinas had not envisaged. That is true of Hooker too, of course. In particular, the two thinkers both developed theories of permissive natural law that were not overtly present in the work of Aquinas; but they did so in different ways and for different reasons. Hooker’s doctrine is interesting and important but it was only ancillary to his main purpose of defending the disputed Anglican practices against Puritan criticisms. For Suarez the idea of permissive natural law was of major importance in his whole structure of juristic thought.

 

193

194  Natural Law and International Law

Law, Reason, and Will A central problem that Suarez faced was to incorporate a doctrine of permissive law into a theory of legislation that treated all law as an expression of the will and command of a sovereign legislator, divine or human. Given the centrality of this issue concerning the source and nature of law in the work of Suarez, it is understandable that modern writings on his juridical thought have most commonly focused on philosophical problems relating to the elements of voluntarism and rationalism in his work, with frequent discussions of the convergences and differences between his views and those of Aquinas. We shall also need to consider this theme, but only briefly insofar as it helps to explain how Suarez’s doctrine influenced his treatment of natural law and its permissions. Suarez published his major work on jurisprudence, the Tractatus de legibus et legislatore Deo, in 1612. He inherited the work of generations of earlier Salamanca scholars who had written on similar themes, beginning with Vitoria, together with the writings of numerous medieval jurists and theologians whose work he knew and frequently cited.1 (Suarez studied Roman and canon law for several years before embarking on his life-long career as a theologian.) His own work provided a massive synthesis of this material and a sort of encyclopedic overview of earlier ideas along with his own distinctive contributions. We can best approach the teaching of the De legibus by considering a series of definitions of the key terms jus (right) and lex (law) that Suarez presented in the early chapters of his work and that were drawn into his later discussions. According to Suarez the word jus had three basic significations. In its first sense it meant “What is just” 1. For a recent introduction to Suarez’s thought with an extensive bibliography of modern work see J. Pereira, Suarez: Between Scholasticism and Modernity (Milwaukee: Marquette University Press, 2007). On Suarez’s political theory see H. Rommen, Die Staatstlehre des Franz Suarez (München-Gladbach: VolksvereinsVerlag, 1926); R. Wilenius, The Social and Political Theory of Francisco Suarez (Helsinki: Suomalaisen Kirjallisuuden Kirjapaino, 1963); J. H. Burns, ed., The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991), 216–41, 292–97.

Francisco Suarez  195 or “What is justly due to anyone”—the original definition of Aquinas.2 But jus could also mean what we should call a right, “a moral faculty that anyone has either regarding his own thing or something due to him; thus the owner of a thing is said to have a right (jus) in the thing and a workman is said to have a right to his wage.”3 And, finally, jus could mean the same as lex (law). “According to another etymology . . . right (jus) seems properly to signify law.”4 In his subsequent definitions of lex Suarez did not dissent from the view of Aquinas that both intellect and will were involved in an act of legislation.5 But whereas Aquinas had emphasized reason as the ground of law, Suarez insisted much more on the will of the legislator. He also agreed with Aquinas that true law must be just and directed to the common good, but again he held that it was the will of a legislator that gave the law its binding force. He wrote accordingly. “Law . . . is an act of a just and right will by which a superior intends to oblige an inferior to do this or that.”6 At a later point of the De legibus he declared that the will of a legislator was the intrinsic form and soul of law. Suarez especially emphasized that an essential feature of law was that it created obligation in those to whom it was directed. He wrote that “In a strict sense, only that is law that creates obligation.”7 Also, “Positive law is laid down by the free will of one having power to command and, by his will, to oblige one on whom the law is imposed.”8 Given such a definition, 2. Tractatus de legibus et legislatore Deo in Francisco Suarez . . . opera omnia, edited by M. André, 28 vols. (Paris: Vivès, 1856–78), vol. 5, 1.2.4, 4, “jus idem significat quod justum et aequum est, quod est objectum justitiae.” Suarez cited here Aquinas’s Summa theologiae, 2.2ae.57.1. 3. Ibid., 1.2.5, 5, “solet proprie jus vocatari facultas quaedam moralis, quam unusquisque habet vel circa rem suam, vel ad rem sibi debitam.” 4. Ibid., 1.2.6, 5, “Juxta aliam vero etymologiam, qua jus a jubendo dicitur, proprie videtur jus legem significare.” 5. Ibid., 1.4.6, 14, “certum imprimis est ad ferendam legem, intellectum et voluntatem intervenire.” 6. Ibid., 1.5.24, 22, “Unde addo . . . legem . . . esse actum voluntatis justae et rectae, quo superior vult inferiorem obligare ad hoc vel illud faciendum.” 7. Ibid., 1.1.7, 3; 1.14.4, 57. 8. Ibid., 2.2.6, 89, “lex positiva est illa quae ponitur per liberam voluntatem alicujus potentis praecipere, et suo praecepto, seu voluntate obligare eum cui lex imponitur.”

196  Natural Law and International Law the whole idea of a permissive law that did not impose obligation becomes problematic. When Suarez turned to natural law (lex naturalis) he explicitly raised the issue of voluntarism and rationalism as grounds of law. He accepted the common opinion that the content of natural law was known through a judgment of reason or dictate of reason, but called attention to a dispute among theologians about this matter that he traced back to the work of the fourteenth-century writer, Gregory of Rimini. Gregory had argued that it was sinful to act against the moral judgments of reason and that this would be true even if we grant per impossibile that there is no God. Other theologians maintained that the obligatory force of natural law must come from commands and prohibitions proceeding from the will of God as legislator. In this view the divine will alone determined what was good or evil and obliged humans to choose the good. After a long discussion Suarez defended a middle position. He argued that all good things come from God and that natural reason and its dictates were among these divine gifts. Therefore, since all evil was forbidden by God, the natural law of reason that indicated to humans what was evil also showed that the evil violated a command of God. He concluded, “Hence it can further be said that this very judgment of the right reason that naturally inheres in humans is a sufficient sign of the divine will.”9 But it was still the divine will that gave natural law its binding force. In another definition Suarez wrote, “Natural law is truly and properly a divine law and God is the author of it.”10 These definitions point to a problem that became apparent when Suarez addressed our particular theme and went on to treat the law of nature as both preceptive and permissive. Natural law as such, considered as an expression of divine will, could readily be fitted into 9. Ibid., 2.6.2, 104, “clarum est rationem naturalem, et ejus dictamina esse divinum donum.”; 2.6.8, 107, “quamvis ratio naturalis indicet quid sit bonum vel malum rationali naturae, nihilominus Deus, ut auctor et gubernator talis naturae, praecipit id facere vel vetare, quod ratio dictat esse faciendum vel vetandum.”; 2.6.24, 112, “Unde dicitur ulterius ipsumet judicium rectae rationis inditum naturaliter homini, esse de se sufficiens signum talis voluntatis divinae.” 10. Ibid., 2.2.13, 108, “Ex dictis ergo concludo . . . legem naturalem esse veram et propriam legem divinam cujus legislator est Deus.”

Francisco Suarez  197 a voluntarist theory of legislation; but the situation was more complicated if the definition were extended to include the idea of a permissive natural law. As we have seen, for Suarez it was of the essence of law that it created obligation; but it was of the intrinsic nature of permission that it did not oblige. And yet Suarez could not simply ignore the idea of permissive law because references to it were included in the three authoritative sources that he probably valued most highly apart from sacred scripture—Roman law, canon law, and the teachings of Aquinas. A central purpose, then, in Suarez’s whole structure of juristic thought was to incorporate a doctrine of permissive law, and especially of permissive natural law, within a command theory of legislation. In the following account I want to consider three stages of Suarez’s argument: first his treatment of permission in relation to law in general, then his discussion of permissive natural law more specifically, and finally his explanation of the relationship between permissive natural law and the law of nations.

Law and Permission: Suarez and Aquinas When he addressed the first of these topics Suarez reiterated his teaching that obligation was an “intrinsic effect” of law, but then at once introduced the idea of permissive law as an objection to the principle he had just stated. The principle could not apply to all laws, he wrote, because some laws were permissive and permission was opposed to obligation.11 To support this argument, Suarez first cited the words of St. Paul regarding marriage that had often been drawn into earlier discussions of permissive law, “I say this by way of indulgence, not by way of command” (1 Cor 7:6). Paul clearly emphasized here the difference between a permission and a command that imposed obligation. Moreover, Suarez continued, permission commonly referred to things that should not be done, even evil things. Permissive law therefore could not oblige and it followed that obligation was not a necessary effect of all law. But this conclusion was unacceptable to Suarez. To account for the apparent anomaly he stated 11. Ibid., 1.14.2, 56, “Nam inter leges numerantur permittentes et punientes; at vero permissio opponitur obligationi . . .”

198  Natural Law and International Law briefly a principle that he would later explain in detail—a permission could not be understood as law unless it had hidden within it some admixture of precept.12 Before developing this idea further Suarez posed a further problem. If the one essential effect of law was to impose obligation, it seemed that the standard fourfold description of the functions of law was superfluous. But there were weighty authorities on the other side. Suarez quoted the basic text of Roman law (“The force of law is to command, to prohibit, to permit, and to punish”); the parallel passage of canon law (“Every law either permits something, as that a strong man may seek a prize, or it prohibits something, or it punishes”); and, finally, the commentary of Aquinas on these texts.13 Suarez then undertook to defend in turn each of the four features of law that they described. Because he chose to concentrate especially on the argument of Aquinas, at this point the teaching of the Dominican that did not itself include an overt doctrine of permissive natural law became the starting point for a reconsideration of the whole question. The first two terms of the Roman law text posed little difficulty. Both were forms of command and both induced obligation. However, Suarez introduced here an argument that would be important is some future discussions. The two things were formally the same. An affirmative law obliged us to act in some way, a negative one obliged us to abstain from acting; an affirmative law commanded us to do good, a negative one commanded us to abstain from evil. It was fitting nevertheless that the two be distinguished because of the different ways in which they induced obligation.14 The inclusion of punishment as an effect of law was also not really problematic. If the law imposed a necessity of acting in a certain way it implied that a transgressor of the law deserved punishment. God’s eternal law punished offenses in the next world and human positive law in this present life. The real difficulty for Suarez lay with permission as an effect of 12. Ibid., 1.14.5, 57, “leges permittentes in tantum esse leges in quantum latenter habent admista praecepta.” 13. Ibid., 1.15.2, 59, citing Digest, 1.3.7, Decretum, Dist.3 c.4, Summa theologiae, 1.2ae.92, 2 14. Ibid., 1.15.1, 59: 1.15.4, 60. A prohibitive law obliged at all times, a preceptive one only at the times when it imposed some duty to be performed.

Francisco Suarez  199 law because, as he wrote, permission as such was “not an effect of command but of lack of command.”15 The text of Aquinas, Suarez noted, treated as permitted by law whatever was not commanded or prohibited, but (unlike Hooker) Suarez held that permission so defined was not really an effect of law but rather a “negation” of law. Since it did not induce obligation it could not be law or an effect of law.16 Moreover Aquinas, echoing a teaching of earlier theologians and canonists, had included among the permissions of law not only indifferent acts but also those that were only slightly good or slightly evil. But, Suarez objected, this teaching could not apply to all law. Divine law and natural law did not permit any evil whatsoever, and human law permitted not only slight evils, but sometimes grave ones such as fornication and adultery. And as regards the good acts, not only marginally good ones were permitted but also the acts of supreme virtue that were matters of counsel such as choosing a life of virginity.17 It seemed, therefore, that the division of acts and associated permissions proposed by Aquinas was inadequate. Suarez had now reached a crucial point in his argument. Having apparently demolished the idea of permissive law that he found in his sources, he proceeded to reconstruct it.18 He did not really intend to reject the idea; but, more than his predecessors, he realized that there were serious objections to it that needed to be answered. And, in doing this, Suarez introduced some new arguments that greatly influenced the subsequent development of ideas about permissive natural law. He began by distinguishing between different kinds of permissive law. There was first a distinction between permission de facto and de jure. De facto God allowed evil to happen but de jure he prohibited all sin; so a mere factual permission did not imply an absence of pro15. Ibid., 1.15.1, 59, “Permissio autem ut sic non est effectus imperii, sed potius per carentiam imperii fit.” 16. Ibid., 1.15.5, 60, “permissio autem illo modo declarata negatio tantum est; ergo non est effectus legis, sed negationis legis . . . permissio illo modo non inducat obligationem, nec est effectus ejus; ergo non potest esse effectus legis.” 17. Ibid., 1.15.6, 60. 18. Ibid., 1.15.2, 59, “Ad illius vero meliorem intelligentiam declarabimus singula membra.”

200  Natural Law and International Law hibition, but only the lack of a divine impediment that would have prevented the evil act.19 However, Suarez continued, he was concerned here with lawful permission, the kind that did exclude both precept and prohibition and left a person free to act as he chose. Accordingly, he introduced another distinction. This permission of law can be considered either as it consists in a mere negation of precept and prohibition or insofar as the permission is grounded in some positive precept because it is decreed and established by some positive law . . . it is one thing to permit, another to will to permit.20

With this distinction at hand Suarez was able to explain how—in spite of his earlier objections—a permission, or at least one kind of permission, could be an effect of law. Certainly the first kind, a mere negation of law, could not be counted as such. For that kind of permission it was not necessary that any law be established to allow it but only that no prohibitory law existed to forbid it. The permission therefore did not proceed from any legislative power and so was not an effect of that power. But, when a permission was confirmed by the decree and will of a legislator, then the permitted act was said to be positively permitted and the permission was properly called an effect of law.21 Such a permission, Suarez wrote, could apply to acts that were good or evil (as, for instance, when civil law permitted prostitution). Then he went on to explain the legal effects associated with each of the two kinds of permission. This was an important step in his argument. For, Suarez wrote, an effect of a positive permission could be to confer a right. “When permission refers to an act that is good 19. Ibid., 1.15.7, 61, “Igitur permissio facti non includit negationem prohibitionis sed meram negationem impedimenti.” 20. Ibid., 1.15.7, 61, “Secundo, haec permissio juris considerari potest, vel ut consistit in mera negatione praecepti et prohibitionis, vel quatenus in aliquo positivo praecepto fundatur quia nimirum per legem aliquam positivam talis permissio decretum est et stabilita . . . aliud est permittere aliud est velle permittere.” 21. Ibid., 1.15.8, 61, “Dico ergo permissio mere negative quae resultat ex sola negatione . . . non esse proprium effectus legis . . . ad illum modum permissionis non est nesessarium ferre legem aliquam, satis enim est non ferre legem prohibentem . . . ut ergo sit proprie permissus per legem oportet ut ipsa permissio stabiliatur et firmetur aliquo decreto et voluntate legislatoris: et tunc recte dicitur actus permissus positive et . . . dicatur effectus legis.”

Francisco Suarez  201 it not only does not prohibit it but also grants a positive faculty or permission or a certain right.”22 For instance, in the example given by Isidore, “A strong man may seek a prize,” the law did not merely permit negatively; it gave the man a specific right to seek the prize, to strive in hope of it “by virtue of the virtual promise of the law.” This kind of permissive law did not command the man to accept a prize but left him free to accept or renounce it, and yet it was not merely negative. Rather it conceded something positively. When the law positively permitted something evil it did not confer a right to act but it did confer immunity from human punishment which was a “moral right of no small moment” according to Suarez.23 If such a permission were granted as a dispensation—Suarez had in mind here the old problem concerning the permission of divorce in Mosaic law—it could also confer immunity from guilt, which was something much greater. And if the permission were granted by civil law it could concede an action in a court of law which, again, was a moral effect different from a mere absence of prohibition. Suarez finally returned to his initial objection—permission did not imply obligation and so could not properly be counted as law. Expanding on a previous comment, he replied that a positive permission always did oblige someone, not indeed the person to whom the permission was granted, but others who were bound to respect it. The canon law that permitted a man who had suffered a minor mutilation, such as the loss of a finger, to be ordained as a cleric did not oblige anyone to be ordained, but it did oblige a prelate not to reject a candidate for such a minor defect.24 Isidore’s example did not oblige an athlete to seek a prize, but it did oblige the judge to award the prize to anyone who had won it fairly. And, when the law permitted something evil, it obliged the judge not to punish the act. Suarez thus found a place for all the effects of law discussed by Aquinas, but with a distinction. He wrote that the first two effects, 22. Ibid., 1.15.11, 62, “dat positivam facultatem, seu licentiam, vel jus aliquod ad illum.” 23. Ibid., “tribuit saltem impunitatem apud homines, quae continet morale jus non parvi momenti.” 24. Ibid., 1.15.12, 62.

202  Natural Law and International Law to command or forbid, were primary, pertaining to the substance of law. The other two, to permit or punish, were ancillary or adjunct, serving to support and facilitate the first two.25 There remained another problem that led to further detailed discussion of permission in different kinds of law, including natural law. Granted that law had the four effects described, did they all inhere in all laws? Suarez replied that they did not occur in each individual law but that they did exist in any whole body of law such as civil law or canon law or natural law. Again there was no difficulty with three of the effects—precept, prohibition, and punishment—but permission once more posed a problem, especially when something evil was permitted. Suarez undertook therefore to explain the kind of permission that could exist within each type of law, and again the argument turned on his distinction between positive permissions and negative ones. Civil law certainly permitted many evil acts, but this was not contrary to justice, Suarez explained, because it was not a proper function of human law to forbid or punish all vices.26 Canon law was different. It included many positive permissions where no guilt was involved, but this law did not positively permit any evil. It did permit many sins negatively in that many sinful acts were not punished by any particular law of the church; but, Suarez reiterated, that kind of permission was not properly called an effect of law at all.27 Suarez noted that the divine law of the Gospel also did not permit any evil.28 He then turned finally to natural law. Earlier he had told how permissions in general could apply to different kinds of acts. Now he explained carefully how permissions derived more specifically from natural law related to acts that were good or evil or merely indifferent. In the first category, many provisions of natural law conceded good actions permissively though not preceptively as, for instance, the division of common property in order to institute pri25. Ibid., 1.15.16, 63. 26. Ibid., 1.16.4, 64. 27. Ibid., 1.16.5, 64. 28. Ibid., 1.16.6, 65. As regards the Old Testament, Suarez mentioned the bill of divorce in Deuteronomy as a possible exception but did not pursue the matter here.

Francisco Suarez  203 vate ownership. This was not a precept of natural law; humans were not obliged to act thus; therefore the law was permissive. And there were many such things, Suarez added.29 On the other hand natural law did not in any way permit sinful acts; it prohibited all evil. The text of Aquinas asserting that one function of law was to permit minor evils posed a difficulty here, for some understood it to mean that natural law did permit venial sins that were not directly contrary to any specific precept of the law. But Suarez rejected this view. It was better, he wrote, to hold that Aquinas’s text applied to law in general but not to each particular kind of law. In this case the permission of evil belonged to human civil law but not to natural law.30 Finally, as regards indifferent acts, it could be doubted whether they were really permitted by law since no law permitted them positively; it seemed that they were permitted only in a negative way as being neither commanded nor forbidden. Given Suarez’s doctrine that this kind of permission was not an effect of law but rather of an absence of law, it might seem that he was denying any juridical significance to the whole range of indifferent acts which, for many previous thinkers, had constituted the essential content of permissive law. But Suarez rejected the argument he had presented. Indifferent acts were not related to natural law merely negatively, he wrote, but also positively in that natural law made a positive judgment that they were neither contrary to natural reason nor in themselves virtuous and so were permissible in any system of law.31 In a final comment on this theme Suarez asked whether the common distinction between the directive and coercive forces of law could apply to permissive law. He responded that the directive force showed what ought to be permitted and not punished and so “commanded the permission” and required that it be respected.32

29. Ibid., 1.16.7, 65. 31. Ibid., 1.16.8, 65.

30. Ibid. 32. Ibid., 1.17.4, 66.

204  Natural Law and International Law

Permissive Natural Law: Property and Liberty In these preliminary discussions in Book I of the De legibus Suarez was dealing with law in general and with the place of natural law among the different varieties of law that he described. Later in the work he turned to a detailed treatment of natural law considered in its own right, so to speak, and again the treatment of permissive natural law formed an important part of his discussion. Rather in the manner of his previous argument, Suarez first suggested that permission could have no place in natural law,33 but then went on to show how, given the proper distinctions, it could be seen as necessary and useful. In his first remarks he noted that natural law could never permit any evil.34 And, when it permitted indifferent acts by not prohibiting them or approved good acts without commanding them, these were not properly speaking “legal permissions.” The first was a only a negation or absence of law, the second was a positive concession, which was something more than mere permission.35 Suarez developed his more favorable account of permissive natural law in addressing the question whether the law of nature was immutable or whether it could be changed by human acts. In his response he considered the ancient problem of the returned deposit and then turned to two topics that had often formed a starting point for these discussions in the past—private property and human liberty. He noted that natural law required the return of a deposit to its owner; but it was agreed that the deposit ought not to be returned if the owner intended to use it for some harmful purpose. It might seem, then, that the natural law changed in particular cases. Suarez of course, rejected this conclusion. He first mentioned the opinion of Aquinas that the primary principles of natural law were indeed immutable but that the particular conclusions drawn from them might vary as they were applied in different situations.36 Suarez, however, preferred another formulation, one that defended in a different way 33. Ibid., 2.12.1, 130, “Unde fit ut neque propria permissio locum habeat in hoc jure.” 34. Ibid., 2.12.1, 130. 35. Ibid. 36. Ibid., 2.13.5, 133.

Francisco Suarez  205 the immutability of natural law while emphasizing an extreme flexibility in its practical applications. True natural laws, Suarez wrote, were written on the mind—they were laws of reason—but when they were set down on a tablet or on parchment they necessarily assumed a simplified form. The natural law of the mind allowed from the outset for different courses of action in different circumstances so that the natural law concerning the return of a deposit really meant, “reason dictates that a deposit is to be returned to one seeking it rightfully and reasonably, and unless some reason concerning the defense of the state or of oneself or of some innocent person poses an obstacle.”37 It was the same with all the precepts of natural law. Thus the natural law, “You shall not kill” really meant something like, “You shall not kill on your own authority or as an aggressor.” Understood in this way, natural law did not change but rather provided in advance for different ways of acting in different circumstances. This was not yet a doctrine of permissive natural law, but the outcome of the argument was that natural law required of us only that we act in accordance with natural reason in discerning a proper course of action in different contingent circumstances. And, as Suarez would write later, “Natural reason does not indicate only what is necessary but also what is permitted.”38 So far the argument of Suarez was quite consistent with that of Aquinas, but when he next turned to consider the origin of private property he abandoned the teaching of the Dominican master and offered an explanation based explicitly on the idea of permissive natural law. The problem was a familiar one. According to natural law all things were common, but human law had introduced private ownership. It seemed, therefore, that the natural law had been changed by human law. In introducing the problem Suarez cited some of the standard texts of the Decretum and then presented a solution that proceeded on the same lines as the old canonistic ones. A thing can be said to be of natural law in two ways. The first and most proper is when natural law commands it. . . . But in another way some37. Ibid., 2.13.6, 134

38. Ibid., 2.18.3, 164.

206  Natural Law and International Law thing is said to be of natural law only permissively, either negatively or concessively. There are many such things that, as regards natural law alone, are permitted or granted to humans, such as community of property and human liberty. Concerning such things, natural law does not command that they remain permanently in that state but leaves this to human disposition, according as reason requires.39

The author was calling attention here to his earlier distinction between a merely “negative permission” and a “positive concession” that he would explore further in his subsequent comments. Suarez had still not explained in detail how a permissive natural law could create obligation by instituting a natural right that others were bound to respect. This issue arose when he went on to consider an objection raised by another jurist, Fortunius Garcia. The jurist maintained that, according to the preceding argument, liberty and community of property would no more be rules of natural law than slavery and private ownership. But from this it would follow that, if we consider natural law alone, one man might licitly deprive another of his liberty and reduce him to slavery. He would not act against any precept of natural law because liberty was merely permitted, not commanded by any precept. Likewise it would follow that men could licitly by their own will and power seize all the property and jurisdictions of others since to act contrary to something that was merely permitted was not in itself evil.40 In replying to these assertions and to his own original objections, Suarez wove together several strands of argument that we have already encountered. His most important move was to reintroduce the definitions of the different meanings of the word jus that he had given at the beginning of his work, emphasizing now the difference between jus as meaning law and as meaning a right or rightful claim 39. Ibid., 2.14.6, 137, “alia vero modo dicitur aliquid esse de jure naturali solum permissive, aut negative, aut concessive. . . ut rerum communitas, hominum libertas, et similia.” In a later summing up Suarez emphasized again the distinction between the negative and positive aspects of natural law. This distinction, he wrote, provided the common answer to the question concerning individual property and many other such questions. See 2.14.14, 140, “Communis ergo responsio . . . est, dupliciter aliquid esse de jure naturali, scilicet, negative et positive.” 40. Ibid., 2.14.15, 140.

Francisco Suarez  207 to property. He asserted that the objections he was answering came from an imperfect understanding of this point and explained that he would now apply to the term jus naturale—natural law or natural right—the distinction he had originally applied to the word jus itself.41 He also introduced a new terminology, now using the term “dominative natural right” to refer to jus in its second sense. (The phrase was taken from Aquinas but he gave a different meaning to it.) Suarez wrote that, in his discussion of the present subject matter, St. Thomas had treated jus naturale as preceptive, and in that sense of the term it was clear that no precept of the law simply and absolutely commanded that all be common. But, considered in this way, ownership of property pertained to natural law only negatively, only because of a lack of prohibition. However, when jus naturale was taken as meaning “dominative natural right,” then nature conceded to humans a positive right to property either collectively or individually. And, further, in both cases this positive right of nature involved an element of precept. In a state of common ownership everyone had a positive right to the use of the common property and a positive precept of natural law commanded that no one be excluded from use of the common things; and, similarly, although natural law did not command a division of property, once the division was made, a precept of natural law prohibited theft.42 In this argument the old teaching concerning permissive natural law was extended to specifically include a doctrine of natural rights. Suarez did not return explicitly to the teaching of Fortunius Garcia but the point he was making was that, in emphasizing only the negative permission of natural law, the jurist had ignored the positive right that nature also conferred. In Suarez’s rather complex discussion of property ownership, jus naturale had a twofold significance derived from his original definitions of jus. Considered as lex, it indicated only an absence of pro41. Ibid., 2.14.16, 140, “diximus enim jus aliquando significare legem; aliquando verum significare dominium . . . alicujus rei seu actionem ad utendum illa; nunc ergo idem dicimus de jure naturali.” 42. Ibid., 2.14.17, 141, “quamvis natura non praeciperit ut res semper essent communes quo sensu dicitur communitas rerum de jure naturae negative tamen durante illo statu, positivum praeceptum juris naturae erat ut nemo prohiberetur nec impediretur ab usu necessario communium rerum.”

208  Natural Law and International Law hibition—no precept of law prohibited private ownership. Considered as a moral faculty or right (jus in the second sense of the term) it conferred a right of use in a state of common property and a right to one’s property once individual ownership was instituted by human law. Suarez used a similar but not identical argument in considering liberty and servitude. Individual liberty, he held, was conceded to humans by a positive permission of natural law that conferred a natural right. The reason why liberty rather than slavery pertains to natural law is that nature made men positively free (so to speak) with an intrinsic right to liberty, but properly speaking it did not make them positively slaves.43

But here a further difficulty arose. When natural law conceded to humans a right to property it did not differentiate between individual and collective ownership. Both were in accord with natural law. There was no problem, therefore, when human law instituted a system of private property. But natural law did differentiate between liberty and slavery. The division of liberty among individual humans did not come from human law but from nature itself; each individual was naturally free. How then could a human law instituting slavery take this liberty away? Suarez replied, in effect, that liberty was a natural right but not an inalienable natural right. Preceptive natural law was based on intrinsic necessary truths concerning good and evil and was therefore immutable. But jus understood as “dominative right” depended on the changeable conditions of the things to which it applied. And liberty was such a changeable condition of humans. Natural law positively conceded liberty to humans but did not absolutely command that this liberty be always preserved. Just because a man was “master of his own liberty” he could sell it or alienate it, and the state too could deprive a person of liberty for just cause.44 43. Ibid., 2.14.16, 141. 44. Ibid., 1.14.18–19, 141. For the following texts from various works see Opera omnia, vol.3, De opere sex dierum, 5.7.10, 46; vol.4, De voluntario, 1.1.2,162; vol.5, De legibus, 3.2.3, 180; vol.24, Defensor fidei, 3.1.2,203; vol.15, De religione, 2.12.7, 173, 7.4.4, 557, 9.4.11, 706.

Francisco Suarez  209 Although Suarez had to acknowledge the fact of servitude, he cared for human liberty, understood both as freedom from servitude and as freedom of choice or free will. He condemned tyrannical government and wrote that freedom was “a great perfection of man.” He emphasized human free will in countering Protestant doctrines of predestination. He held that a political society was formed by naturally free individuals joining together by common consent. When Suarez returned to the issue of liberty and slavery in various scattered contexts he declared that all humans were naturally free by virtue of their intrinsic dignity as creatures made in the image of God. Slavery, he held, was not natural to man but was a creation of civil law. He recognized only two ways in which it could be justified. A man could enter voluntary servitude by selling himself to another for life-long labor but, Suarez insisted, he could not sell his life itself or his right to life. And he could not sell himself to another in such a way that the other could kill or mutilate him. Besides this, persons could be deprived of liberty for a criminal act, the standard case being the enslavement of captives who had participated in an unjust war (though Suarez noted that this practice was not used among Christian nations).45 These last provisions seemed reasonably liberal. The American Thirteenth Amendment forbids only involuntary servitude and allows for deprivation of liberty as a punishment for crime. The problem as always in this period was that the theory bore no relation to the slave trade as it was actually practiced.46

International Law Vitoria and others had written earlier about slavery in their discussions on the law of nations as it related to Spanish conquests 45. De lege, Opera omnia, vol.5, 2.20.8, 172; vol.6, 7.4.7, 147. 46. For centuries the fiction was maintained that the slaves shipped from Africa had sold themselves or were legitimately enslaved prisoners of war. The theologian Luis Molina, a contemporary of Suarez, actually questioned captains of slave ships about this. He concluded that the claims were probably specious, but still did not condemn the slave trade outright. See F. B. Costello, The Political Philosophy of Luis de Molina, SJ (1535–1600) (Rome: Institutum Historicum S.I., 1974), 163–98.

210  Natural Law and International Law in the Indies. When Suarez considered international law his interest was rather different. He made a significant contribution by distinguishing clearly for the first time between two meanings of the term ius gentium, the law of nations. The term could refer to laws that were common to all or most nations (its original meaning), or it could refer to international law in a modern sense, the law governing relations between sovereign states; and this, Suarez held, was its more proper meaning.47 He was however, not primarily interested in exploring the content of this international law but rather in explaining the status of the ius gentium within his whole system of jurisprudence as something intermediate between natural law and civil law, and especially in distinguishing between ius gentium and ius naturale, an inquiry which led once more to a consideration of the permissive face of natural law. The problem was an ancient one rooted in the original texts of Roman law relating to the ius gentium. A famous passage of the Institutes gave a threefold classification of law as natural law, the law of nations, and civil law. “Natural law is what nature has taught all animals, for this law is proper not only to the human race but to all animals . . . what natural reason has established among all peoples . . . is called the law of nations”48 Finally, in this classification, civil law was the law proper to a particular people. The text clearly distinguished between natural law and the law of nations, but other passages of Roman law seemed to equate the two terms. Another text of the Institutes referred to free use of the open sea as pertaining to natural law and to the law of nations without distinguishing between the two. Another referred simply to “natural law which is called the law of nations.”49 And yet still another text of the Institutes again distinguished between the two laws, “By natural law all men were born free . . . but slavery came in from the law of nations.”50 Classical jurists sometimes distinguished between the two terms, sometimes used them interchangeably. From the time of the revival of Roman law studies in the twelfth 47. De lege, 2.19.8, 168. 49. Inst., 2.1.1, 2.1.11.

48. Dig., 1.1.1. 3. 50. Inst., 1.5pr.

Francisco Suarez  211 century, medieval jurists tried to shape a coherent doctrine out of the tangle of ancient texts, but without achieving any agreed synthesis. Many thinkers, including Suarez, rejected the simplest distinction between ius naturale and ius gentium because they held that natural law was not just a matter of animal instinct; it was a law of reason that applied only to rational creatures. But then it proved difficult to find another way of distinguishing clearly between natural law and the law of nations. Both were laws of reason that were common among all peoples; also there was a broad measure of agreement between the content of the two laws. Of course there was no reason why a particular precept should not occur in two different systems of law as when, for instance, a civil law against murder exemplified the natural law, “You shall not kill.” But the overlap between natural law and the law of nations was very extensive. Some jurists came to hold, therefore, that the two laws were essentially the same. Suarez called attention to this view in introducing his own treatment of the ius gentium. “(Ius gentium) has a great affinity with natural law, so that many confuse the one with the other or think one to be a part of the other.”51 Suarez strongly resisted this teaching. He held that the law of nations was a form of positive human law, specifically of customary law. Just as in one city or province custom introduces law, so too in the whole human race laws could be introduced by the usages of peoples.52

Natural law consisted of moral principles discerned by reason as necessarily true; the provisions of the law of nations were based on a customary law that was “in an absolute sense human and positive.” In natural law an act was prohibited because it was evil; in the law of nations an act was evil because it was prohibited. The issue of permissive natural law that concerns us came into 51. De lege, 2.17.1, 159. 52. Ibid., 2.19.9, 169, On ius gentium as a form of customary law in Suarez see J. P. Doyle, “Francisco Suarez on the Law of Nations,” in M. W. Janis and S. Evans, eds., Religion and International Law (The Hague: Martinus Nijhoff, 1999), 103–20; B. Tierney, “Vitoria and Suarez on ius gentium, Natural Law, and Custom,” in A. Perreau-Saussine and J. B. Murphy, eds., The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge: Cambridge University Press, 2007).

212  Natural Law and International Law play when Suarez undertook to refute various alternative explanations of the difference between ius gentium and ius naturale. One of them, Suarez noted, asserted that the essential difference between the two laws was that the ius gentium, unlike the ius naturale, consisted only of permissions. The law of nations is distinguished from natural law in that it does not include precepts and prohibitions but only certain concessions or powers or permissions to do or not do something not only with impunity but also justly and honorably.53

Suarez replied that both laws contained permissions and precepts, so that the argument he was refuting did not really define a meaningful distinction between them. The law of nature could be permissive, he argued, and the law of nations could include precepts; there was no reason why such a system of law founded on human consent should not be preceptive as well as permissive. In pursuing this argument further, Suarez returned to his earlier teaching that every positive permission necessarily included an element of precept since it required others to respect the permission granted. He illustrated this by quoting a text on the content of the ius gentium written by Isidore of Seville and included in the Decretum. The law of nations concerns the occupation of places, buildings, fortifications, captivity, servitude, postliminy, treaties, armistices, the immunity of ambassadors, and the prohibitions of marriage with aliens.54

Suarez went through the provisions one by one to prove his point. The first ones, he argued, clearly included both permission and precept. It would be absurd to maintain that the law granted a free right to occupy land or build on it or fortify it, and at the same time maintain that others could justly interfere with the exercise of the right; hence there was a necessary connection here between permissive and preceptive law.55 A similar argument applied to most of the other rules, and the last two concerning ambassadors and marriage with an alien were clearly preceptive. 53. De lege, 2.18.1, 163. 54. Decretum, Dist.1 c.9. 55. De lege, 2.18.5, 164, “ergo est necessaria connexio inter jus concessivum et praeceptivum.”

Francisco Suarez  213 There remained a further difficulty. Some jurists conceded that a permissive law could include an element of precept but that, still, in the law of nations the permission came from the ius gentium itself and the precept enforcing its observance from the law of nature. And so again this was the essential difference between the two laws. But Suarez denied this too. When a rule of the ius gentium coincided with one of natural law, as was often the case, then both laws included the prescriptive and permissive aspects of law.56 In introducing this whole argument Suarez set out a succinct summary of his doctrine of permissive natural law that can serve as a conclusion to this account. In natural law there are many things that can be done righteously by virtue of natural law which are not commanded nor are their opposites prohibited, and so a concessive natural law exists, as in the right of marrying a wife and the right of retaining and preserving one’s own liberty, for this is righteous and the law of nature concedes it but does not command it. . . . And the reason is that natural reason dictates, not only what is demanded of us, but also what is permissible.57

Suarez inherited a doctrine of permissive natural law from a long tradition of thought but he developed it in his own distinctive ways. The problem of including such a doctrine in a positivist system of law had been considered centuries earlier by Marsilius of Padua who argued that every precept included an element of permission. Suarez took a step further and maintained that every positive permission included an element of precept. For Suarez every such permission was an example of what Johannes Andreae had called permission “removing impediments” or “providing support.” It conferred a right and it implied a command that the permission be respected. As I mentioned at the outset, modern writing on Suarez’s juridical 56. Ibid., 2.18.8, 165. 57. Ibid., 2.18.3, 163–64, “Quia in jure naturali multa sunt quae honeste fieri possunt ex vi legis naturalis, quae non praecipiuntur, nec contraria prohibentur, et ita etiam dari potest jus naturale concessivum, quale est jus ducendi uxorem, jus retinendi et conservandi libertatem: hoc enim honeste est et illud jus naturae concedit, non praecipit . . . et supra tractando de immutabilitate legis naturalis, illam distinctionem explicavimus: et ratio est quia ratio naturalis non solum dictat quod necessarium sit, sed etiam quod liceat.”

214  Natural Law and International Law thought has dealt primarily with his treatment of problems concerning the interplay of reason and will in the making of law. I know of no work that focuses on the Jesuit’s treatment of permissive natural law. But that was important too, and very influential. Suarez’s arguments seeking to prove that all law imposed obligation but that, nevertheless, a permissive natural law really existed remained matters of dispute in the debates about permissive law that would continue down to the end of the eighteenth century.

11

Hugo Grotius

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 the ius gentium, the law of nations, and especially the law of war.

Life and Works 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 Salamanca and other centers of learning; but Grotius had a more stormy career and his writings were much influenced by the course of his life.1 He was born in 1583, the son of a prosperous fam1. For general accounts of Grotius see C. S. Edwards, Hugo Grotius: The Miracle of Holland: A Study in Political and Legal Thought (Chicago: Nelson-Hall, 1981) and the studies collected in H. Bull, B. Kingsbury and A. Roberts, eds., Hugo Grotius and International Relations (Oxford: Clarendon Press, 1990). P. Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983) provides a detailed bibliography of earlier work. Current bibliography is included in the journal Grotiana. For some different approaches to Grotius as a natural law thinker see R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), and Philosophy and Government,

 

215

216  Natural Law and International Law ily of Delft. In his youth he acquired a brilliant reputation as a humanist scholar, a poet and historian as well as a jurist, and he wrote extensively in all these fields. Grotius also pursued a very successful career as a lawyer and state official. Although Grotius is remembered now principally for his work in international law he was also very much involved in the theological disputes of his age. He belonged to a group of “Remonstrants” who rejected the rigorous Calvinist teachings on predestination and free will (or lack of it) that most Dutch Protestants upheld. Unfortunately for Grotius, the Stadtholder, Prince Maurice, chose to side with the strict Calvinists. Because of his part in opposing Maurice’s policies Grotius was accused of treason and sentenced to life imprisonment. He escaped from prison in 1621 but had to spend the rest of his life in exile, mostly at Paris. There he was at first supported by a pension from the French king and later served as the ambassador of the king of Sweden to France. Grotius’s writings on religion contain references to natural law and even to permissive natural law but this theme was developed most fully in his two major treatises on international law, the De jure praedae and the De jure belli et pacis.2 The first work was occasioned by a specific international incident in the East Indies, the capture of a Portuguese merchant vessel, the Santa Catarina, by a Dutch captain in the service of the Dutch East Indies Company (Vereenighde Oostindische Compagnie). After a court in Amsterdam had approved the capture of the prize, the company commissioned the young Grotius to write a defense of the decision. In response, going considerably beyond his brief, Grotius produced the De jure praedae, a substantial treatise on natural law and natural rights. Grotius’s work was not 1572–1651 (Cambridge: Cambridge University Press, 1993); K. Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996); B. Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997, repr. Grand Rapids: Eerdmans Publishing Company, 2001). 2. H.-J. van Dam, ed. and trans., De imperio summarum potestatum circa sacra, 2 vols. (Leiden: Brill, 2001); H. G. Hamaker, ed., Hugonis Grotii de jure praedae commentarius (The Hague: Martinus Nijhof, 1868); J. B. Scott, ed., De jure belli et pacis, 2 vols. (Oxford: Clarendon Press, 1925), vol. 1, Reproduction of the Edition of 1646, vol. 2, A Translation of the Text by Francis W. Kelsey.

Hugo Grotius  217 published in his lifetime but one chapter was excerpted and printed in 1609 under the title Mare liberum.3 Grotius’s mature work on which his later fame chiefly rested, the De jure belli et pacis, published in 1625, included some of the substance of the earlier treatise but with much additional material and without the focus on one particular international incident. The result was an instant classic that went through many editions during the following century and was translated into several languages. Grotius’s later writings show some acquaintance with the De legibus of Suarez and, ever since the seventeenth century, scholars have argued about the relationship between his treatment of natural law and earlier medieval teachings that were transmitted by the Spanish neo-scholastics. Some earlier scholars such as A. H. Chroust emphasized a close dependence of Grotius on Suarez.4 A more recent comment of Annabel Brett suggests that Grotius should be included among the writers “who were not natural lawyers at all from a Suarezian point of view.”5 Brett was arguing here that Grotius was influenced primarily by humanist sources rather than by scholastic ones, a view earlier advanced by Richard Tuck.6 But it is not easy to disentangle the two strands of thought; Grotius would quote freely from humanist works while defending scholastic ideas. And the tensions between natural law, human liberty, and utilitarian ideas in Grotius’s work, that Brett traces to humanist sources, can seem less stressful when one understands that his treatment of the law of nature was mainly concerned with natural law in its permissive aspect. Another modern critic, Van Ittersum—again building in part on earlier work of Tuck—has criticized Grotius’s work from another point of view, emphasizing that it cannot be understood in a contextual vacuum but only when it is related to his frequent engagement 3. R. V. D. Magoffin, ed. and trans., Freedom of the Seas (Oxford: Oxford University Press, 1916). 4. A. H. Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism 17 (1943): 101–33. 5. A. Brett, “Natural Right and Civil Community: The Civil Philosophy of Hugo Grotius,” The Historical Journal 45 (2002): 31–51. But Brett also noted that some of Grotius’s formulations were derived from Suarez (51). 6. R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 16–50.

218  Natural Law and International Law with the affairs of the Dutch East India Company. This is a salutary reminder, though it can lead to a rather unflattering portrait of Grotius as a “lobbyist and ideologue” of the Company.7 We must certainly take with a grain of salt Grotius’s own assertion that he wrote with the detachment of a pure mathematician, without any reference to contemporary problems. It is perhaps going too far, though, to suggest that, in defending Dutch commercial interests, Grotius was a sort of apologist in advance for the excesses of later Western colonialism.8 If one were seeking to evaluate the life and work of Grotius as a whole such questions would require extensive treatment, but for us the most important point is that Grotius’s involvement in contemporary affairs helps to explain the ways in which he deployed the idea of permissive natural law in his various writings.

The Law of Prize The incident that led to Grotius’s writing of the De jure praedae was the result of a trading dispute between Portugal and the Netherlands. The Portuguese claimed an exclusive right to trade with the East Indies and to control the surrounding ocean. The Dutch denied this claim and asserted that the seizure of the Santa Catarina was justified as a reprisal for Portuguese harassing of Dutch merchants. Grotius therefore set out to defend, in terms of natural law, both the freedom of the seas and the right to punish offenders by taking reprisals. There is a certain youthful bravado in the Prolegomena to the De jure praedae where the author undertook to present a novel structure of jurisprudence based on nine self-proclaimed rules and thirteen laws derived from the rules. The idea of permissive natural law was introduced at the outset of the treatise. Grotius’s Rule I declared that, “What God has shown to be his will, that is law.”9 From this the 7. M. J. van Ittersum, Profit and Principle: Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Brill: Leiden, 2006), xi. 8. Ibid, 366–71, citing the work of F. E. R. de Pauw and B. V. A. Rölling. See also Tuck, Rights of War and Peace, 103–8 and G. Cavallar, The Rights of Strangers (Aldershot, U.K.: Ashgate, 2002), 150–55. 9. Hamaker, De jure praedae, 7, “Quod Deus se velle significarit, id jus est.”

Hugo Grotius  219 author derived two permissions of the law of nature. Law I. “It shall be permissible to defend one’s own life and avoid what is harmful.” Law II. “It shall be permissible to acquire and retain the things useful for life.”10 Grotius’s Rule II again referred to acts of will but this time of human will. “What the consent of mankind has shown to be the will of all, that is law.”11 From these first rules two more laws of nature were derived. Law III. “No one shall harm another.” And Law IV. “No one shall take what has been taken into possession by another.”12 These first laws were supplemented by two further ones. Law V. “Evil deeds shall be corrected.” And Law VI. “Good deeds shall be recompensed.”13 At a later point in the De jure praedae Grotius observed that, before civil jurisdictions were instituted, humans were ruled only by these six laws and that all the rights they held were derived from them, particularly from Laws I, II, V, and VI. He explained that the laws framed as prohibitions (Laws III and IV), if considered from the point of view of one’s own advantage, were simply the obverse of Laws I and II.14 An old argument, restated in modern fashion by John Finnis, points out that some natural rights can be derived from divine commands. Thus the commandment “You shall not steal” implies that others have a right to property. But in Grotius’s early work the argument ran in the opposite direction. The permissive natural laws were fundamental; the prohibitory commands simply showed, as it were, the other side of the coin. In a passage of Vazquez quoted by Grotius, the Spanish author wrote that whatever was not expressly prohibited by law was understood to be permitted.15 Grotius did not comment on this view— it would receive more attention in his later work—but in the De jure praedae the emphasis on permission certainly signified more than 10. Ibid., 10, “Vitam tueri et declinare nocitura liceat.” “Ajungere sibi quae ad vivendum sunt utilia eaque retinere.” 11. Ibid., 12, “Quod consensus hominum velle cunctos significaverit, id jus est.” 12. Ibid., 13–14, “Ne quis alterum laedat.” “Ne quis occupet alteri occupata.” 13. Ibid., 15, “Malefacta corrigenda.” “Benefacta repensanda.” 14. Ibid., 67, 88. 15. Ibid., 239, “omnia intelligantur esse permissa quae non reperiuntur expressim prohibita.”

220  Natural Law and International Law mere absence of prohibition. It led the young Grotius to formulate some unusual arguments concerning the origins of government and of property that were evidently inspired by the need to justify the seizure of the Santa Caterina, but that were presented as abstract principles of natural law. Grotius had to defend an act of war on the open sea where no civil jurisdiction existed. An appeal to natural law and especially to what was permitted by natural law seemed to provide the best approach to the problem. Grotius first envisaged a state of humanity before any lawful jurisdiction was established. By God’s creation every man was then “free and sui iuris” and each was naturally permitted to declare and vindicate his own right.16 But the inordinate self-love of humans gave rise to dissensions and tumults, so that it became necessary to institute an orderly judicial system by common consent.17 And once this was established a citizen could not enforce his rights except by a judicial procedure. (This was Grotius’s Law IX.) However, when disputes between states arose, there was no common judge and then a permissive law of nature applied according to which “each was permitted to be the judge of his own cause.”18 In those instances an injured party could vindicate a right by a just war. Even among individuals, Grotius wrote, if a person were attacked in the wilderness where no recourse to a judge was possible, he could rightfully exercise the right of self-defense derived from the first law. When Grotius turned from war between states to a defense of private warfare—the issue involved in the taking of the Santa Catarina— this last principle was repeated and much extended. The argument again supposed a situation where no recourse to a judge was possible—for instance, in desert lands or islands or on the open ocean. The position then was like the one that existed before any public jurisdiction was instituted, when each was the executor of his own right. Grotius had earlier identified four reasons that could justify going to war—self-defense, defense of property, enforcement of obligations, 16. Ibid., 18. 17. Ibid., 24. 18. Ibid. 29, “Redditur enim necessario ad jus naturae, quo unusquisque in sua causa judicare permittebatur.”

Hugo Grotius  221 and punishment of wrongdoing. He found it easy to show that private warfare was permitted for any of the first three reasons.19 But he needed also to defend a right to private warfare for the fourth reason, to punish wrongdoing, since the Dutch claimed that the taking of the Santa Catarina was justified as a reprisal for earlier harassment of their merchants by the Portuguese. This last point was more difficult to establish because a common opinion of the time held that only public authorities could justly inflict punishment for crime. Grotius argued therefore that the punishment of evildoers was required by the natural law that existed before the institution of civil societies. Then he carried the argument to an unusual conclusion. It is clear that the grounds for inflicting punishment are natural and derived from the Law that we called the First. But does not the power to punish belong only to the state? The truth is rather that, just as every right of the magistrate comes from the state, so too every right of the state comes from individuals by their common agreement. . . . Hence, since no one can confer what he does not have, it is evident that the right to punish necessarily inhered in private individuals before it inhered in the state.20

The argument that the state’s right to punish came from a preexisting right of individuals never found general acceptance but it acquired a considerable notoriety because it was included in Locke’s Second Treatise in terms that seem closely modeled on those of Grotius. And some scholars have seen Locke’s use of the argument as a major innovation in the history of political theory.21 Evidently Grotius’s permissive first law of nature (“It shall be permitted to defend one’s own life”) had a great deal of work to do in the development of his subsequent argument. The permission of the second law too came into play at a later point where Grotius presented an idiosyncratic theory concerning the origin of private property. Earlier writers had commonly set out from the idea—one they could find in both Roman and canon law—that common ownership 19. Ibid., 85–88. 20. Ibid., 91, “Quare cum transferre nemo possit, quod non habuit, jus illud antiquius penes privatos fuisse quam penes rempublicam necesse videtur.” 21. E.g., M. Zuckert, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994), 234–40. Grotius’s work had not been published when Locke wrote and the precise source of his doctrine has not been established.

222  Natural Law and International Law was instituted by natural law. They then had to explain that the natural law involved here was permissive, not preceptive; and then they could justify by essentially utilitarian arguments the establishment of individual ownership. But Grotius had no need for such an argument. His initial natural law concerning property (Law II) did not establish common ownership but permitted individual acquisition. His only task therefore was to explain the process by which private properties actually came to exist, and to do so in a way that would justify his subsequent doctrine that there could be no such property in the open sea. To achieve this end Grotius turned to an unlikely source, the language of the old dispute between Pope John XXII and the Franciscans. In the first age of humanity, he wrote, there was no ownership of property; everything was available for the use of everyone. But this was a “use of fact” not a “use of law”; there was no right of use that excluded others such as existed later. From this situation the idea of private property emerged gradually in a transition initiated by nature herself. It began when people perceived that things consumed in use, like food and drink, necessarily belonged to the user because they became part of his or her actual substance.22 Then, when the idea of individual property had emerged in this way, it was applied “by a logical process” to items like clothing that were partially consumed in use, and finally to land, which was not itself consumed but was a source of consumables. When a division of land became necessary because there was not enough for indiscriminate use by everyone, laws were instituted to define property rights, and they followed the example of nature. Just as the concept of property had its origin in acts of “corporeal attachment,” so too the law recognized first occupancy, a similar act of physical attachment, as the basis of a right to property.23 All this was a very extended application of Law II, the permissive law of nature that authorized acquisition of property. The argument did not really proceed by a “logical process” but by a series of 22. De jure praedae, 216. Grotius cited the decretals Ad conditorem and Quia quorundam of John XXII on goods consumed in use. See above, 97. 23. Ibid., 218, “omnis proprietas ab occupatione coeperit.”

Hugo Grotius  223 not very convincing analogies. However, it led Grotius to the conclusion he wanted to reach; if the acquisition of property required an act of physical attachment there could be no ownership of the waters of the sea. And, unlike the land, the sea was vast enough for common use by all. The common use of the sea, Grotius concluded, was a right that “no prince or commonwealth” could deny.24 Although Grotius’s first laws of nature led him to some unusual arguments their content might seem conventional enough in itself. Like other classifications of law they included permissions, prohibitions, and precepts—for instance self-defense was permitted, theft prohibited, and punishment of malefactors prescribed. But, below the surface of the text there were some unresolved issues relating to permission and obligation that would reemerge in Grotius’s later works. One such problem concerned the ongoing debate about will and reason as sources of law, especially natural law. In reading through the rules and laws we seem to be dealing with a jurisprudence of pure voluntarism. The formula of the first rule, “What God has willed.” provided a model for the rules that followed. All the rules from which Grotius derived his laws were presented as expressions of will—the will of God, or the will of individuals or the will of a commonwealth or the will of all nations. These formulations seem to leave no room for any other ground of law. And yet Grotius did not neglect reason. In the Prolegomena he mentioned the “sovereign reason” of humans, derived from God who “impressed the image of his own mind on humankind.”25 He wrote that “the will of all directed to all is law” but also that “the ancients were not deceived in defining law as right reason.”26 He did not address the question that the medieval theologians had debated, whether reason or will was the essential ground of obligation. The emphasis on will as the source of natural law at the outset of the treatise led to another unusual feature in Grotius’s exposition; 24. Ibid., 206, “negent ullam rempublicam aut Principem prohibere in universum posse.” 25. Ibid., 11–12. 26. Ibid., 67, “Neque enim frustra legem rectam esse rationem veteres definiverunt.”

224  Natural Law and International Law the fundamental permissive laws of nature were expressed as divine imperatives. When Suarez wrote his De legibus (published in 1610 a few years after the De jure praedae), he would reflect in detail on how permissive natural law could exist within a voluntarist command theory of legislation; but in this early work Grotius seemed unaware that the problem existed. Previous writers had carefully distinguished between the precepts and permissions of nature but Grotius bundled them together in one formula. [T]wo precepts of the law of nature emerge: first that it shall be permissible to defend one’s own life . . . secondly that it shall be permissible to acquire and retain things useful for life.27

Similar language recurred at later points in the treatise. Grotius wrote, for instance, “By command of the primary law of nations . . . it is permissible for the Dutch to trade with any nation.” And, again, “Natural law not only permits but commands that the sea be common.”28 For Grotius the permissions of natural law were what Suarez would call “positive permissions,” permissions that proceeded from the will of a legislator. Toward the end of the treatise, discussing the just and the honorable in the conduct of war, Grotius wrote that he did not rely on the permissions of human law that merely granted immunity from punishment, but on what was “decreed and established by the immutable law of nature.”29 But in all the foregoing discussion the law of nature that he appealed to most frequently was a permissive law. The question of what was just and honorable according to preceptive natural law and human law would receive more detailed treatment in Grotius’s later treatise on the law of war. Van Ittersum observed that the thinking of Grotius on natural law and natural rights was “an unstable mixture at best,” but she herself 27. I am following here the translation of Gwladys Williams in De jure praedae commentarius, vol.1, A Translation of the Text (Oxford: Clarendon Press, 1950), 10. The Latin text has, “Ex hac igitur conjugatione emergunt leges juris naturalis duae.” The perennial problem arises here of rendering the shades of meaning of jus and lex in English. But lex refers to enacted legislation, so Williams’s translation seems justified. 28. Ibid., 205, 220. 29. Ibid., 301.

Hugo Grotius  225 seems to have been confused by his language at one point where she wrote that self-defense was a “categorical imperative” for Grotius.30 But really the self-defense of the first law was not a categorical imperative. It was, if one may use the term, a categorical permission.

The Authority of Civil Rulers In a subsequent work, the De imperio, completed in 1616, Grotius addressed a set of issues different from those of the De jure praedae. The central theme of the work was set out clearly in the opening paragraph. Supreme power in a community, Grotius wrote, inhered in the body having authority over all the others and itself subject only to God’s sovereign power; it included the right to command, to prohibit, and to permit; and, finally, the power thus defined extended to religious as well as to secular affairs.31 This was the central theme of the whole book. Grotius was writing at a time of bitter religious dissension in Holland, his home province, between orthodox Calvinists and his own Remonstrant group. The States of Holland, which Grotius regarded as a sovereign body, were inclined to favor the Remonstrants. The De imperio was written, therefore, to claim for the States a supreme authority in the administration of religious affairs, especially as regarded the appointment of pastors and the summoning of church synods. Grotius participated actively in the polemics and war of pamphlets occasioned by the religious strife, but the De imperio was written in a more impersonal style, replete with arguments derived from natural law, including permissive natural law, and with abundant evidence drawn from scripture and history. Nevertheless, as the translator of the De imperio observed, it is not easy to discern any coherent philosophy running through this work and other writings of Grotius.32 In the De imperio, for instance, he seems to directly contradict an argument of the De jure praedae. In the earlier work he wrote that, be30. Profit and Principle, 389. 31. H.-J. van Dam, ed. and trans., De imperio summarum potestatum circa sacra, 2 vols. (Leiden: Brill, 2001), vol.1, 1.1, 156. 32. Ibid., Introduction, 5–6.

226  Natural Law and International Law fore the institution of a commonwealth, private individuals had the power to punish malefactors and avenge injuries—otherwise they could not have transferred this power to the state. In the De imperio he wrote that it was quite possible for persons to assign to another a power that they themselves did not possess, and here he wrote, “The power of life and death does not belong to citizens before they unite in a commonwealth, for a private person does not have a right to vengeance, and yet they assign this right to some person or assembly.”33 Grotius was arguing here for the right of civil magistrates to appoint pastors even though they were not pastors themselves. He went on to assert that divine law did not lay down any specific procedure for the choice of pastors, that everything not defined by divine law was “free to the supreme power,” and that, accordingly, the civil authority could legislate in such matters or itself make the appointments.34 Although Grotius could be opportunistic in his choice of arguments these last words indicate a persistent theme that recurred in his writings. Natural law and divine law were in part permissive; they left open wide areas of conduct to be shaped by human initiative. The point was put crisply in the Inleidinghe written a few years later. “What is prohibited by natural law cannot be commanded . . . What is commanded by natural law cannot be prohibited. . . . What is permitted by natural law can be commanded or prohibited by other laws.”35 In the De imperio Grotius addressed this question by using the old argument about indifferent actions, although he avoided using Cicero’s own word, indifferentia. Instead he wrote that some actions were “morally defined”—commanded or forbidden—and some “morally undefined.” The human supreme power was limited only as regards actions that were “morally defined,” obligatory or prohibited by their very nature or by divine ordinance, that is, by natural law or divine 33. Ibid., 10.3, 450. 34. Ibid., 10.13–15, 474–76. (Grotius referred here to “that splendid man, Marsilius of Padua.”) 35. Hugonis Grotii Institutiones juris Hollandici, edited by H. F. W. D. Fischer, translated by J. van der Linden (Haarlem: H. D. Tjeenk Willink & Zoon, 1962), 2.

Hugo Grotius  227 positive law.36 Actions that these laws left undefined and open to free choice could be regulated by human authority. And even the defined acts could be regulated to some extent in that human law could reward good acts and punish evil ones or refrain from punishing them by a “permission of fact.”37 Grotius went on to explain how these considerations applied to the state’s control of church affairs. Human power could not command what God prohibited, but by adding its own command to what divine law ordained it could impose an additional obligation to obey the law. The supreme power could not dictate a person’s inner belief or make new articles of faith or change the laws of God. It could not, for instance, change the form of marriage established by God.38 But the supreme power could determine the ways in which the divine law was to be implemented in the external conduct of religious affairs. “The supreme power among men prescribes the circumstances of time, place, and manner for actions commanded by God in order that they be done ‘decently and in order.‘”39 The concluding reference to Corinthians may remind us of the similar teaching of Hooker, whose work Grotius knew and admired. Rather like Hooker, Grotius wanted the state to control church affairs in order to limit the influence of religious extremists. This concern led to another argument of the De imperio regarding permissive natural law. Grotius was anxious to prevent the assembling of a national synod of the Dutch church which, he feared (rightly as it turned out), would define the disputed points of doctrine in a strict Calvinist sense. He therefore maintained that the rights to summon a synod, to choose its members, and to affirm or disapprove its decisions all belonged to the sovereign power. Most of Grotius’s argument appealed to historical precedents but the author also found it necessary to explore again the relationship between 36. De imperio, 3.2, 206, “‘Moraliter definitas’ voco quae aut debitae sunt aut illicitae”; 208, “Quare, cum summa potestate nullum sit maius . . . sequitur illi demum esse definita quae . . . suapte natura sunt debita aut illicita.” 37. Ibid., 3.4, 210, “Huc pertinet . . . illicitas vero actiones . . . coercere aut nullas poenas infligere, quae vocatur ‘facti permissio.’” 38. Ibid., 3.11, 220. 39. Ibid., 222.

228  Natural Law and International Law natural law and human positive law. He began by asserting that no specific precept of divine law required the summoning of synods and that therefore their origin must be sought in natural law. Since man was by nature a social animal, nature permitted the association of those with common interests, such groups as professional societies of physicians or lawyers. However, some things belonged to natural law absolutely, regardless of any human action, others only conditionally.40 The first group included immutable rules of conduct such as the duties to worship God, love our parents, not harm the innocent. Things that were natural in the second sense included common property, personal freedom, and inheritance by next of kin. These things were not permanent binding rules. They were permissions of natural law not precepts. They could be changed by human acts such as those that introduced private property, instituted slavery, or changed the rules of inheritance. And, for Grotius of course, the natural law relating to the summoning of synods belonged to this second class. “The summoning of a synod is among the things that are permitted by natural law and may be commanded, prohibited or permitted by human laws.”41 In the De jure praedae Grotius wrote of rights that no prince or republic could infringe; here he was concerned with rights that were permitted by natural law but that could be curtailed by human law. In the De imperio Grotius was not defending the rights of individuals but the powers of the state. The notion of permissive natural law could be deployed for either purpose.

The Law of War and Peace This mature work of Grotius (henceforth cited as De jure belli) made a major and enduring contribution to the development of international law; some of its themes, such as the right of humanitarian intervention, have indeed acquired a new relevance in recent times. For us it is important that the work is in large part a treatise 40. Ibid., 7.3. 328. 41. Ibid., 330, “Est ergo synodi conventus in numero earum rerum, quae jure naturae permissae, legibus humanis praecipi, permitti aut prohibere solent.”

Hugo Grotius  229 on permissive law, on what is permissible in the conduct of warfare according to the law of nature and the law of nations. Some of the content of the work was carried over from the De jure praedae but there were notable changes of emphasis especially in the treatment of natural law. In the earlier work the emphasis fell on individual freedom and on the will of individuals—either the will of God or the will of humans—as the source of law. In the De jure belli the emphasis was on reason and human sociability as the ground of natural law. Moreover, it is evident that, by the time Grotius wrote the later work, he had read Suarez’s De legibus and realized that the issues the Spanish author discussed there concerning permissive law and obligation would have to be introduced into his new work. He did therefore refer to them, though not in a systematic fashion.

Natural Law and Permission Grotius’s theory of natural law was very influential but it was set out in just a few paragraphs of the De jure belli before he turned to the real substance of the treatise, the law of war. In the Prolegomena Grotius wrote that humans were moved by a compelling desire for life in society, and in a society that was not like a mere herding together of animals, but a peaceful community, fit for creatures endowed with the gift of intelligence.42 Reason could show humans what was conducive to well-being in such a society; hence, to act against the judgments of reason would be contrary to the law of nature, that is contrary to human nature itself.43 Grotius wrote therefore that human nature was “the mother of natural law.” He held that the content of the natural law could be known either a priori, by considering what was in agreement with a rational and social na42. De jure belli, vol.1, Prolegomena, n.p.(11), “appetitus societatis, id est communitatis non qualiscunque, sed tranquillae, et pro sui intellectus modo ordinatae.” The Prolegomena is unpaginated in the edition cited (see n.2). For ease of reference I have given in parentheses here and in the following notes the page numbers of the translation (vol. 2 of the edition) after the page number of the Latin text (or n.p. for the Prolegomena). My translations are taken from the Latin text. 43. Ibid., Prolegomena, n.p.(13), “et quod tali judicio plane repugnat, etiam contra jus naturae, humanae scilicet, esse intelligitur.”

230  Natural Law and International Law ture, or a posteriori from the consent of all nations or at least the most civilized ones.44 In the course of expounding these views Grotius included, as a sort of offhand remark, the words that would become the most famous in the treatise. What we have said so far would have a certain validity even if we should grant, what cannot be granted without extreme wickedness, that there is no God, or that he has no care of human affairs.45

When Suarez, the most likely direct source of Grotius’s observation, considered the same point his comment did not arouse any great furor; those who read him could understand that he was merely calling attention to a long-standing debate of the theology schools. Grotius had a different purpose. He was seeking to present a system of international law that could reach across religious boundaries to persons of many different beliefs. An appeal to the reason that was common to all humans was an appropriate way of introducing such a work, and that was probably all that Grotius intended by his remark. However, in later times his “impious hypothesis” was often seen as a major innovation, the beginning of a modern secularized system of natural law. Grotius himself had no sympathy with atheism or religious skepticism and, immediately after writing “even if there were no God,” he declared that the very opposite was true. There was indeed a God and his will was a source of law. The very opposite of this view has been implanted in us, partly by reason, partly by unbroken custom . . . it follows that we must render obedience to God, our creator . . . hence there is another source of law besides the source in nature, the free will of God.46

Grotius further wrote that the law of nature could itself be ascribed to God since God had willed that the relevant traits, rationality and sociability, should exist in us.47 44. Ibid., Prolegomena, n.p.(23–24), 1.1.12, 5–6 (42). 45. Ibid., Prolegomena, n.p.(13), “Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus, quod sine summo scelere dari nequit, non esse Deum, aut non curari ab eo negotia humana.” 46. Ibid., “Et haec jam alia juris origo est praeter illam naturalem, veniens scilicet ex libera Dei voluntate.” 47. Ibid., “ut talia principia in nobis existerent ipse voluit.”

Hugo Grotius  231 By far the greater part of the De jure belli was devoted to practical questions concerning the law (jus) of war. In the first chapter of his treatise, therefore, Grotius addressed a fundamental question on which all the rest depended: “What is jus?” He responded with a series of definitions that were closely modeled on those of Suarez. Grotius first gave three meanings of jus similar to those of the Spanish Jesuit, then presented a definition of jus naturale which, like that of Suarez, included both human reason and divine command, and finally raised briefly an objection, one that Suarez had considered at length—permission could not be an effect of law because it did not impose obligation. In introducing the first definition Grotius wrote that his title, De jure belli, indicated that he would first consider whether any war could be just and then what was just in the conduct of war. He continued, “For here jus signifies nothing but what is just, and that in a negative rather than in a positive sense, so that jus is what is not unjust.”48 The second definition, Grotius wrote, was derived from the first one but it referred more to persons. It defined what we should call a right. “Jus is a moral quality of a person, enabling him to have or do something justly.49 In the third definition jus was equated with law. “There is a third signification of jus where it means the same as law (lex), when law is taken in a broad sense as a rule of moral action obliging us to do what is right.”50 If we consider each of these definitions in turn they can give us additional insight into the purpose and nature of the whole treatise. The first one explains the title, indicating precisely what the author intended to mean by it. This is especially helpful because the meaning of the title has sometimes been a matter of dispute. Perez Zagorin, for instance, criticized Richard Tuck for preferring the title, On the Rights of War and Peace, when the real meaning, he argued, was evi48. Ibid., 1.1.3, 2(34), “Jam jus hic nihil aliud quam quod justum est significat: idque negante magis sensu, quam ajente, ut jus sit quod injustum non est.” 49. Ibid., 1.1.4, 2(35), “Qualitas moralis personae competens ad aliquid juste habendum vel agendum.” 50. Ibid., 1.1.9, 3(35), “Est et tertia juris significatio quae idem valet quod Lex, quoties vox legis largissime sumitur, ut sit Regula actuum moralium obligans ad id quod rectum est.”

232  Natural Law and International Law dently, On the Law of War and Peace.51 But neither translation is quite adequate. Grotius himself tells us that he was using the word jus in the sense of “What is just,” so a more correct rendering of the title would be, On What Is Just in War and Peace. Or, given Grotius’s further explanation, it could be rendered, more clumsily but still more exactly, as On What Is Not Unjust in War and Peace. The last translation of the title really describes a theme that runs throughout the book. Grotius was primarily concerned with actions that were “not unjust” and so permissible in carrying on a war. This can help us to understand the second definition of jus as a moral quality that enables us to have or do something justly. Grotius explained this further as a faculty that included a power over ourselves or others, a power over our property, and a power to claim what was due to us.52 He also distinguished here between a “faculty” and an “aptitude.” A faculty was a right strictly so-called, a right that could be enforced by physical power or by suing in court. An aptitude was a meritorious claim that a reasonable, fair-minded person would grant but that did not impose a strict duty on others. Grotius called a faculty a perfect right and an aptitude a less perfect right.53 These were definitions that led to a standard distinction among later authors between perfect and imperfect rights and duties. In Grotius’s own detailed treatment of the law of war, to be considered later, an analogous distinction often occurred between what could be done in accordance with strict justice and what was honorable and fitting conduct. Grotius’s final definition of jus as meaning law (lex), a rule that obliges us, led on at once to problems of permission and obligation. The author first emphasized that an essential characteristic of law was to impose obligation. “We have need of obligation for counsels and any other such precepts . . . that do not impose obligation are not included in the terms jus or lex.”54 In his previous works and in the De jure belli up to this point Gro51. P. Zagorin, “Hobbes without Grotius,” History of Political Thought 21 (2000): 16–40 at 31. 52. De jure belli, 1.1.5, 2(35) 53. Ibid., 1.1.4, 2(35); 1.1.7, 3(36) 54. Ibid., 1.1.9, 3(38), “Obligationem requirimus, nam consilia . . . non obligantia, legis aut juris nomine non veniunt.”

Hugo Grotius  233 tius seems to have taken for granted that law could be permissive but now he began to introduce some of the complexities that had earlier been treated by Suarez. He continued. “Permission is not strictly speaking an act of law but a negation of act.”55 This statement was much debated by later authors. It seems to rule out in advance any juridical significance in all the material about the permissions of natural law and the law of nations that would follow in the body of the treatise. But Grotius went on, still echoing Suarez, “except insofar as it obliges another not to hinder the person to whom the permission is granted.”56 Grotius left the matter at that. He did not explain how a permission of law could impose obligation on anyone or what kind of permission would have that effect. Suarez had discussed this issue at length. Grotius dismissed it in a few words writing three lines where Suarez wrote three pages.57 But Grotius’s brevity did not necessarily make for clarity. It is not easy to formulate a coherent jurisprudence which includes a doctrine of permissive law within a command theory of legislation that emphasizes obligation, and it is not clear that Grotius succeeded in doing so. When Suarez discussed this question he made a crucial distinction between permission that resulted simply from the absence of any relevant law and permission established by some positive precept. Grotius returned to the issue of obligation and permission several times but he never made this distinction clearly and consistently. There was always something tentative or problematical in his discussions. Immediately after explaining the different meanings of the word jus Grotius gave his definition of jus naturale, natural law. In the Prolegomena he had juxtaposed divine will and human reason as sourc55. Ibid., “Permissio autem proprie non actum est legis aut juris sed actionis negatio.” 56. Ibid., “nisi quatenus alium ab eo cui permittitur obligat ne impedimentum ponat.” 57. Perhaps the problem seemed less urgent to Grotius because, although he held that obligation was an essential feature of law, he did not insist that all law stemmed necessarily from the will of a legislator. For Grotius, reason too was a source of law. He wrote that the binding force depended on the will of him who made it, “excepting the law of nature.” See 1.1.16.7, 8(48), “obligatio extra jus naturae venit ex voluntate legem ferentis” (emphasis added).

234  Natural Law and International Law es of natural law. His formal definition made room for both features. Natural reason indicated what God willed. Natural law is a dictate of right reason indicating that some act, according as it is in conformity or not in conformity with rational nature, has in it a quality of moral turpitude or moral necessity, and that consequently the act is commanded or forbidden by God, the author of nature.58

This definition, however, at once led on to further problems about obligation. The actions to which it referred, Grotius wrote, were either morally reprehensible or obligatory. This seems to exclude the idea of morally neutral acts allowed by a permissive natural law, and Grotius apparently accepted that view here. He went on to argue that it was improper to say “as the schoolmen love to say,” that acts could pertain to natural law when they were merely not contrary to the law or were commendable and comparatively good although not commanded.59 When the scholastic authors used such language they commonly relied on the idea that natural law could be permissive.60 Here, however, Grotius seems to exclude this category from his notion of law. Perhaps at this point, like many of his humanist contemporaries, he was just impatient with what seemed to be the too subtle distinctions of the scholastics. At another point, discussing the laws of nature that were included in the Old Testament, Grotius wrote that even God could not change what those laws commanded or prohibited, but that this was not true of the permissions, “things that are only permitted by the law of nature, for things of this kind are not properly of the law of nature but outside the law.”61 Here again he seems to exclude permissions 58. Ibid., 1.1.10.1, 4(39), “Jus naturale est dictum rectae rationis indicans actui alicui, ex ejus convenientia aut disconvenientia cum ipsa natura rationali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturae Deo talem actum aut vetari aut praecipi.” 59. Ibid., 1.1.10.3, 4(39), “Ad juris autem naturalis intellectum, notandum est quaedam dici ejus juris non proprie, sed ut scholae loqui amant, reductive quibus jus naturale non repugnat.” 60. Barbeyrac would point this out in one of his dissenting notes. See R. Tuck, ed., The Rights of War and Peace, 3 vols. (Indianapolis: Liberty Fund, 2005), vol.1, 1.1.9, 146. This translation, made from Barbeyrac’s French version, is especially useful because it includes the extensive notes of Barbeyrac himself. 61. Ibid., 1.2.5.1, 19(57), “non in his quae jure naturae licent tantum nam quae ejus sunt generis . . . proprie juris naturae non sint, sed extra jus naturae.”

Hugo Grotius  235 from the sphere of law properly so-called. Such language seems to deny all legal force to permissions. But, throughout the subsequent treatise, Grotius appealed to the permissions of natural law and the law of nations, and to conduct that was not contrary to natural law, as grounds of legal doctrines that he wanted to assert. It would have been simpler if Grotius had acknowledged at the outset that permission was an effect of law as in the Roman Digest and in Gratian’s Decretum or that the permissions of natural law were expressions of divine will as in his own De jure praedae. But he was apparently deterred from making these arguments by the objection that law necessarily imposed obligation, something that he did not consider in the earlier work. The passages I have mentioned may reflect only verbal infelicities in Grotius’s presentation but they do suggest that the author was not very interested in teasing out all the different meanings of permissive law in a way that could have overcome this objection. The result was that he presented only a rather “thin” theory of permissive law to introduce a very “thick” account of all the ways in which the idea could be applied to the conduct of war. Before turning to that side of his thought, though, we need to mention some areas where Grotius’s primary preoccupations with the law of nature and the law of war led to digressions on some broader issues of political theory that again involved the idea of permissive law. The treatment of a “solemn war,” war between two sovereign states, led Grotius to an extended discussion on the nature of sovereignty, and here he made an important distinction between the kind of sovereignty that inhered in the whole body of a people and the sovereignty that a commonwealth conferred on its ruler.62 He also incurred the displeasure of some later critics by insisting that absolutism could be a legitimate form of government. Grotius argued that, just as an individual was permitted to sell himself into slavery by Roman and Jewish law, so too a whole people could be permitted to institute an absolute ruler, retaining nothing of its original freedom. Grotius was not defending absolutism as the best form; he mentioned approvingly various constitutional systems, but he want62. Ibid., 1.3.7.1, 52(102).

236  Natural Law and International Law ed to make the point that a people was permitted to establish any form of government that it chose.63 And a people in extreme peril might institute an absolute ruler as the best available choice, a point emphasized by Selden a little later. In similar fashion, the argument that war could licitly be waged in defense of property provided the occasion for a new discussion on the origin of property rights. Here Grotius abandoned the “Franciscan” language about things consumed in use that he had relied on in the De jure praedae and presented a more conventional argument. He wrote that the first division was made by an original contract or by a tacit acknowledgment that a right of ownership was acquired by first occupancy of a vacant property.64 In describing how this might be changed by subsequent positive laws, Grotius explained that the right was a permission, not a command of natural law, here recognizing the existence of permissive natural law without question. “The right exists by permission of the law of nature, not by a command that it always be permitted, for human society does not require this.”65 Since the work of Grotius was so widely read these passages had a significant influence on later writers, but here I want to return to our central theme, the idea of permissibility itself as Grotius applied it in discussing the conduct of warfare.

The Law of War: Theory and Practice There were two major problems in the doctrine of law that Grotius presented in the De jure belli. The first one, inherited from Suarez, concerned permissive law and obligation. As we saw, Grotius treated this matter rather cursorily (though it would be much dis63. Ibid., 1.8.1.1, 53(103), “Licet hominen cuique se in privatam servitudinem cui velit addicere . . . quidni ergo populo sui juris liceat se uni cuipiam, aut pluribus ita addicere, ut regendi sui jus in eum plane transcribat, nulla ejus juris parte retenta?” 64. Ibid., 2.2.2.5, 114(189), “pacto quodam aut expresso, ut per divisionem, aut tacito, ut per occupationem.” 65. Ibid., 2.3.5, 127(207), “Est enim hoc jus ex jure naturale permittente, non praecipiente ut liceat semper.”

Hugo Grotius  237 cussed by his successors.) The other problem, that seemed more important to Grotius and that he discussed in much more detail, was inherent in the initial formulations of his intentions and basic doctrines. The problem arose like this. At the beginning of his treatise Grotius complained of the “frenzy” let loose by war that seemed to permit every sort of crime, and he set out to show that, even in time of war, a rule of law should prevail. But, as Grotius’s argument proceeded, it seemed that the law of nations, of which the law of war formed part, itself condoned many of the very practices that the author deplored and sought to discourage. According to the definition that Grotius gives us in the De jure belli, the law of nations is a law that derives its obligatory force from the will of all or many nations. Its content cannot therefore be known by arguing from general principles as with the law of nature, but only from evidence of continued usage, and for that purpose, Grotius wrote, “eminent historians are of very great use to us.”66 But, when he gathered together from numerous historical sources examples of the conduct that the law of war permitted, they proved to include all the cruelties and violence and “barbarous” behavior that he sought to mitigate. Moreover, it seemed that the law of nature as well as the law of nations treated such conduct as just in time of war. In Book I of the De jure belli Grotius argued at length that waging war was in accordance with natural law.67 In Book III (“On what is permissible in war”) he explained that the law of nature permitted combatants in a war to use any means necessary to achieve the end of victory.68 Grotius went on to present a kind of catalog of the kinds of conduct that were permitted by the law of war. They included, as one would expect, a right to kill enemies, but in Grotius’s account this meant not only combatants but all residents in enemy territory in66. Ibid., 1.1.14.2, 7(44). See Prolegomena, n.p. (15, 23–24, 26). 67. Ibid., 1.2.1–3, 15–17(51–56). 68. Ibid., 3.1.2.1, 424(599). Grotius presumably intended to exclude acts that were intrinsically evil. However, he did not regard such things as looting enemy lands or killing civilians as always evil but as justified by the necessities of law. He referred, for example, to destruction by fire as just according to natural law. See 3.1.2.3, 425(600). On spoilage and plunder see 3.5.1., 468(658).

238  Natural Law and International Law cluding women and children.69 Also permitted was the killing of prisoners of war, even those who had voluntarily surrendered.70 In addition, the devastation by fire of enemy lands, pillaging of villages, even looting of churches, was permitted.71 As for raping women, “Sometimes you read that it is permitted, sometimes not.”72 Grotius thus set up an argument within which the very practices that he deplored seemed to be permitted by the law of war and perhaps by natural law too. Yet he also wanted to argue that there was a moral duty to refrain from such actions. The practices that Grotius described were (and are) normal accompaniments of war. How are we to pass judgment on them? Grotius did not find it easy to decide. But in the context of the present study an important result of his engagement with the issue was that it led him to frequent explorations of the realm of permitted conduct, the middle ground between command and prohibition where the notion of permissive natural law had always been located. There already existed a substantial theological and canonistic literature on this topic, some of which we looked at in earlier chapters. This material included two kinds of argument that would prove to be especially relevant to Grotius’s inquiry into the morality of warfare. Positive law, human and divine, could, for sufficient reason, permit some intrinsically evil act, at least in the sense of leaving it unpunished. Also, natural and divine law could recognize gradations of excellence within the area of conduct that was morally acceptable but not explicitly commanded or forbidden, and could permit the choice of a lesser good. This teaching goes back to Augustine’s distinction between what was advised (monetur) and what was condoned (ignoscitur), and before that to the counsels and commands of the Gospel. It was commonly accepted by medieval canonists and theologians.73 69. Ibid., 3.4.9, 459(646); 3.4.9.1, 459(648). 70. Ibid., 3.4.10.1, 460(649); 3.4.11, 460(650). 71. Ibid., 3.5.1, 468(658); 3.5.2.1 468(658). 72. Ibid., 3.4.19.1, 464(656). Grotius added that this was forbidden to Christians. 73. Among the earlier authors we considered, Huguccio distinguished between what was freely permitted and what was reluctantly allowed, and William of Auxerre similarly wrote of a “permission of indulgence” and a “permission of toleration.”

Hugo Grotius  239 Grotius was familiar with these earlier ideas and deployed them in contexts scattered throughout his work but always, I think, with an eye to their relevance for his final explanation of what was permitted in waging war and the ways in which it was permitted. Often he seems to hesitate between two basic positions. Either the conduct he deplored was intrinsically sinful, forbidden by natural law and permitted by the law of nations only in the sense that it was left unpunished; or the conduct was permitted by natural law as just or at least “not unjust” in the conduct of warfare, and yet it represented only a lowly minimum standard of conduct that an honorable man would seek to surpass. The first approach was suggested by Grotius’s remark that “the law of nations permits many things that are prohibited by the law of nature,” the second by one of his quotations from Seneca, “What a limited innocence it is to be good only as far as the law requires.”74 Grotius found it hard to decide—perhaps he never did finally decide—in which category to place the many evils that customarily occurred in the conduct of war. Before we turn to Grotius’s specific arguments about these questions it will be useful to consider three relevant texts in which he explained his teaching on law and permission by referring to the New Testament, the Old Testament, and a teaching of classical antiquity taken from a text of Cicero. In commenting on the New Testament, Grotius emphasized that the Gospel demanded more of Christians than natural law alone required. Then he continued, Nevertheless I have not omitted to take note of the things that are recommended to us rather than commanded, so that we may know that, while to transgress a command is evil and exposes us to punishment, to strive for the highest excellence is a matter of counsel and will not lack its reward.75

This was traditional doctrine expressed in traditional language. It envisaged a range of actions that were all morally acceptable, but 74. De jure belli, 3.4.15.1, 461(651); 3.10.1.3, 509 (717). Earlier Suarez had distinguished in the realm of “moral obligations” between those that were required by natural law and so binding in conscience, and those that referred to the choice of a more excellent alternative as when one obeyed a counsel. See De legibus, 2.9.6–7, 120. 75. Ibid., Prolegomena, n.p.(27). Grotius added here that similarly the canons of the church “either teach us what divine law demands or exhort us to what God persuades.”

240  Natural Law and International Law some of which were mandatory, some voluntary, some exemplifying a higher degree of perfection than others. It is a little surprising that Grotius chose to introduce this doctrine in commenting on the New Testament since the whole idea of supererogatory virtue had been widely condemned by Protestant theologians.76 But the author found it useful further on when he argued, against the view of some early church fathers, that Christianity did not condemn every kind of war. He explained that some of the early Christians were so zealous that they mistook the counsels of perfection for indispensable obligations.77 Applied to standards of conduct in fighting a war, an argument based on supererogation would suggest that some behavior fell short of what was optimal but still was not morally wrong. In introducing the law of the Old Testament, Grotius noted that it was addressed only to the ancient Jewish people but that, nevertheless, it could be a valuable source for others too because we could be sure that nothing ordained in it by God was contrary to natural law. He added at once, however, that to understand this properly we must distinguish carefully between the precepts and the permissions of the Mosaic law.78 For centuries the permissions of the Old Testament had been a matter of endless debate, often focused on the question whether a permission that allowed something otherwise forbidden merely remitted the usual punishment for the offense or whether it also freed from guilt the parties concerned. Grotius reformulated this argument by adapting his language of complete and incomplete rights to apply now to different kinds of permission. A permission, he wrote, could be either complete or less 76. The late medieval church developed a doctrine that the supererogatory works of the saints had built up a “treasury of merits” that the pope could dispense in the form of indulgences. This was of course the issue that led to Luther’s initial break with the pope. It may be recalled that Hooker was accused by his adversaries of teaching a Catholic doctrine of supererogation and vigorously denied the charge. On supererogation in Grotius and its relation to his teaching on perfect and imperfect rights see the perceptive article of Joachim Hruschka, “Supererogation and Meritorious Duties,” Jahrbuch für Recht und Ethik 6 (1998): 92–108. 77. De jure belli, 1.2.9.4, 32–33(83). 78. Ibid., 1.1.17.2, 9(49). “Primum ergo ostendit lex Hebraea, id quod lege praecipitur non esse contra jus naturae. . . . De praeceptis loquor, nam de permissis distinctius agendum est.”

Hugo Grotius  241 than complete. A complete permission gave a right to do something altogether licitly; a less complete permission granted only immunity from human punishment and a right of noninterference by others.79 Anything granted by the first kind of permission would be in accordance with the law of nature, but this was not true of things allowed only by the second kind. In this passage Grotius was not envisaging only a choice between good and less good acts but also a choice of acts that were really blameworthy, contrary to the law of nature and yet still allowed by an “incomplete permission” and so left unpunished. In considering the moral value of permissions granted by the law of war in particular cases, his judgment would depend on his understanding of which kind of permission the law conceded. Grotius also distinguished between conduct that was strictly commanded and that which was commended but not absolutely required when he first addressed the question whether any war was permitted by the law of nature. Here he began with the classical doctrine mentioned above. In considering natural law, Cicero, reflecting earlier Stoic teachings, had distinguished between the first principles of nature that impelled all creatures to strive for self-preservation and the higher law of reason that was concerned with good and honorable conduct (the honestum.)80 Within the realm of honorable conduct some ways of behaving were so necessary that to depart from them at once involved wrongdoing, while other acts were such that to perform them was indeed praiseworthy and yet to omit them was not reprehensible. It was a distinction analogous to that of the theologians between commands and counsels but here expressed in a different format of classical language. Such matters, Grotius noted, could be regulated by positive law, human or divine, perhaps making obligatory what had been merely praiseworthy. But, Grotius continued, when, in considering the morality of war, we ask whether some 79. Ibid., “plena est quod jus dat ad aliquid omnino licite agendum . . . minor plena quae tantum impunitatem dat apud homines et jus ne quis alius impedire licite possit.” In a discussion of the same question Suarez gave a much more detailed account of the effects of the different kinds of permission. See De legibus, 1.15.7–11, 60–62. 80. Ibid., 1.2.1.1–3, 15–16(51–52).

242  Natural Law and International Law act is permitted by natural law we need only determine whether it can be done “not unjustly.”81 He then went on to argue at length that war was indeed permitted both by the primary principles of natural law and by the natural law of reason. There were thus various passages of the De jure belli that distinguished between different sorts of permission but so far without explaining how each of them applied to specific acts of combatants in warfare. But finally, when Grotius took up that crucial question in Book III of his treatise, he built his argument around an explicit confrontation between the two kinds of permission that he had introduced earlier as “complete” and “less complete.” The word licebit (“It shall be permitted”), Grotius wrote, had two meanings. “Sometimes ‘to permit’ refers to what is altogether right and good even though perhaps something more praiseworthy might be done.”82 Grotius then quoted St. Paul, “All things are permitted to me but not all are expedient,” and went on to give some traditional examples of conduct that was permissible but that was not considered to be of the highest perfection. For instance, marriage was permitted but celibacy was more praiseworthy. A widow was permitted to remarry but it was better that she remain single. However, this was only one kind of permission. Grotius continued, “In another sense, though, something is said to be permitted, not because it can be done without violating piety or the rules of duty, but because it is not liable to human punishment.”83 Then he added at once, “In this sense it is permitted to do harm to an enemy both in his person and in his property.”84 After hesitating between different kinds of permission, Grotius seems finally to have reached a conclusion. The violent conduct associated with war that he would 81. Ibid., 1.2.1.3, 16(52). 82. Ibid. 3.4.2.1, 456(641), “Interdum enim licere dicitur id quod rectum ex omni parte piumque est, etiamsi forte aliud quid fieri possit laudabilius.” 83. Ibid., 3.4.2.2, 457(642), “Alias vero licere aliquid dicitur, non quod salva pietate et officiorum regulis fieri potest, sed quod apud homines poenae non subjacet.” Grotius also explained here why such conduct was left unpunished. See 3.4.4, 457(644). It was a matter of practical necessity. When two nations went to war there was no third party competent to judge between them or to inflict punishment on anyone considered guilty. 84. Ibid., 3.4.2.3, 457(643).

Hugo Grotius  243 go on to describe could be tolerated with impunity but not approved of as right and good. However, when the author turned to the task of persuading combatants not to indulge in licentious conduct he seems to reopen the whole question. Grotius began by saying that he would now have to retrace his steps and take away from those engaged in war all the rights that he seemed to have granted to them earlier and yet had not really granted, “for when I set out to explore this part of the law of nations I noted that many things are said to be lawful and permitted because they are done with impunity although they are contrary to the rule of right. . . .”85 This seems just a reiteration of his former opinion but Grotius continued, “whether that is considered as a rule of justice strictly so called or a precept of other virtues, or at least it is morally better and more praiseworthy to abstain from such things.”86 It seems that after all the previous discussions the reader is finally left with a choice. The dire acts that the law of war permitted might be contrary to strict justice or they might be contrary to some other virtue or they might just be less praiseworthy ways of behaving. The ambiguity perhaps arose because neither of the two standard traditional arguments about lawfully permitted acts quite suited Grotius’s purpose. According to one argument, the law of nations could tolerate acts that were intrinsically evil and clearly contrary to natural law just as other human positive laws did. (Such things as prostitution and usury had been commonly mentioned.)87 But in arguing at the outset that war could be “not unjust” Grotius had indicated that war and the violence normally associated with war were not contrary to the law of nature. The other argument noted that the law permitted some acts that were not actually evil but that were less virtuous and praiseworthy 85. Ibid., 3.10.1.1, 508(716), “cum primum hanc juris gentium partem explicare sum aggressus, testatus sum juris esse aut licere multa dici eo quod impune fiant.” 86. Ibid., “quae tamen aut exorbitent a recti regula sive illo in jure stricte dicto, sive in aliarum virtutum praecepto posita est . . . aut certe ommittantur sanctius et cum majori apud bonos laude.” 87. Ibid., 3.5.4, 470(662), “Nimirum ad minora et frequentia haec delicta ita connivere coepit jus gentium, sicut leges civiles ad meretricium et improba foenera.”

244  Natural Law and International Law than the alternatives. When Grotius made use of that argument he had to exhort combatants to adopt a higher, more generous standard of conduct than the law strictly required. But it was of the intrinsic nature of such supererogatory acts that they had to be performed voluntarily.88 However, Grotius wanted to argue that combatants were somehow obliged to exercise restraint in using their rights. I do not think that Grotius ever fully resolved this ambiguity. His own way of coping with it was to set up another law alongside the law of justice—the law of charity or law of love. For Grotius, charity was the “other virtue” that limited the license conceded by the law of war. Moreover the author incorporated this Christian virtue into his understanding of the law of nature and thus gave it an obligatory force. He explained that natural law was not concerned only with expletive justice, justice strictly so-called. The law (jus) of nature insofar as it is considered strictly as law (legem) treats not only what we have called expletive justice but also acts of all the other virtues . . . as being in some circumstances not only honorable but also obligatory. In such things charity restrains us.89

Grotius thus maintained that natural law could include, not only acts required by strict justice, but also acts of other virtues, especially the virtue of charity. In another context, commenting again on the title of his book, Grotius wrote that, although he was primarily concerned with justice, he would also consider what other virtues commanded or commended. He went on to give an example of self-sacrifice required by the virtue of charity, a case where an innocent man had to be handed over to the enemy to save the lives of many others. Grotius wrote that he was not obliged to surrender himself by law strictly so-called, then continued, “but charity does not allow him to do otherwise. There are many things that do not concern strict justice that are du88. Also, as noted above, the whole doctrine of supererogation was commonly rejected in Protestant theology. 89. Ibid., 2.1.9.1, 104(176), “Nam jus naturae quatenus legem significat, non ea tantum respicit quae dictat justitia quam expletricem diximus, sed aliarum quoque virtutum . . . ut in certis circumstantiis non honestos tantum, sed et debitos. Ad id vero quod diximus caritas nos obstringit.”

Hugo Grotius  245 ties of love, things that are not only praiseworthy when done but that cannot be omitted without fault.”90 When Grotius considered other aspects of the behavior permissible in war he repeatedly argued that the law of love precluded conduct that he had earlier treated as legally permissible, especially as regards the killing of innocent people. To kill in defense of property, for instance, was in accord with strict justice but contrary to the law of love.91 Reprisals taken in war might be just, but if they involved killing innocent people, “in accordance with the law of love we ought not to pursue our right. According to this law Christians especially should value human life more than property.”92 In another passage Grotius wrote that the law of war permitted the sinking of a pirate ship or destroying a house of thieves even if this incidentally involved the killing of women and children, but he characteristically added, “but as I have often advised, what is in accordance with law is not always altogether permissible. Often love of our neighbor does not permit us to exercise our right to the full.”93 In the work of Grotius charity replaced supererogation as a guide to the most excellent ways of behaving.94 In considering Grotius’s views, we must bear in mind that in his day there already existed an extensive literature on the law of war and that much of what he wrote was common doctrine. It was generally accepted, for instance, that innocent people should not be deliberately harmed but that they could be killed incidentally if some act of war required this to achieve victory. Aquinas wrote that even 90. Ibid., 2.25.3.3, 412(579), “ex jure proprie dicto, civem ad hoc non teneri, at non etiam caritatem pati ut aliter faciat. Multa enim sunt, non justitiae proprie dictae, sed dilectionis officia, quae non tantum cum laude praestantur . . . sed etiam sine culpa nequeunt.” 91. Ibid. 3.11.2, 513(723). 92. Ibid., 3.2.6, 447(628). 93. Ibid., 3.1.4.2, 425(601), “Saepe enim proximi caritas non permittet ut summa jure utatur.” Grotius emphasized here the principle of proportionality. The good achieved must be greater than the accompanying evil. 94. Although Grotius emphasized so much the Christian virtue of charity, when he gave examples of virtuous behavior in war, acts of mercy and clemency, he almost always took them from pagan classical sources. He apparently found it easy to equate pagan and Christian virtue. Augustine and Luther would have disapproved.

246  Natural Law and International Law war must be conducted in a spirit of charity and Suarez noted that a war might be just and yet “contrary to charity or some other virtue.”95 What was new in Grotius was his persistent application of both a law of justice and a law of charity to the harsh realities of war. But this points to a paradox in Grotius’s whole endeavor. He set out to mitigate the savageries of seventeenth-century warfare by showing that even war could be subject to the rules of international law; but in the end he found little comfort in the law that actually existed and had to turn to the Christian virtue of charity in the hope of achieving his end. In reading through the final Book III of Grotius’s work one often has the impression that the author was more interested in the morality of waging war than in law strictly so called. When he considered the dire consequences of war there was an immediacy and passion in his writing that is lacking in the earlier writers who had discussed the same themes. And his work had the great merit that it considered a very broad array of practical problems that could arise in the conduct of warfare and offered confident judgments about what was morally permissible in each case. Moreover, all this was presented with an extraordinary display of classical erudition that duly impressed the humanists of his day and attracted a wide readership. A central theme of the De jure belli was permissibility, the determination of what was lawfully permitted in carrying on a war, and accordingly the book included many references to permissive law, both natural and positive. It is difficult, though, to discern a coherent underlying philosophy of natural law that would give a unity to the whole work and to Grotius’s other relevant writings. By incorporating both justice and charity into his idea of natural law and then frequently opposing the claims of charity to those of justice he set up an equivocal doctrine in which one part of natural law seems to struggle for dominance with another. And in the definitions and explanations of permissive law presented in the early sections of the De jure belli Grotius seems to be dutifully including some scraps of Suarezian teaching about permission and obligation without paying much at95. Opera omnia, vol.13, De charitate, 13.7.21, 757.

Hugo Grotius  247 tention to the structure of the whole argument in which they were embedded. Grotius was a more versatile writer than Suarez but not such a systematic thinker. The two men had different interests and the differences reflect their different backgrounds. Until his career was interrupted by imprisonment and exile, Grotius was a successful practicing lawyer and state official, and subsequently he was involved in diplomatic affairs as an envoy of the Swedish king. He also made himself a very learned humanist. But he did not have the years of academic study and teaching of law and theology that shaped the mind of Suarez. Suarez wrote as a theoretician of law, Grotius more like a seasoned practitioner who, in different circumstances, would deploy the arguments best suited to uphold the cause he wanted to defend. The diversity of ideas that one can find in Grotius’s writings should not finally be considered a weakness. In a way it contributed to his subsequent fame. Later thinkers could take up different parts of his teaching and either adapt them to suit their own systems of thought or publicize them further by opposing them. One of the reasons why Grotius’s work was so widely and attentively studied, apart from its evident merits, was that it gave his readers (especially professors) a great deal to argue about.

PA RT V I

For and Against: Selden, Pufendorf, and Some Critics

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 to deal with problems raised by Suarez and mediated to them 1. Both authors are discussed in the context of the political philosophy of the age in J. H. Burns, ed., The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991).

 

249

250  For and Against principally by Grotius. For centuries the idea of a permissive natural law had not seemed especially problematic. After all, the doctrine that law could be permissive as well as preceptive had been embedded in two of the principal sources that jurists relied on, the Digest of Justinian and the Decretum of Gratian. When Vitoria, two generations before Suarez, had introduced the idea of permissive natural law into his teaching at Salamanca in order to explain the origin of private property, he could rely on a respectable tradition stretching back to the twelfth century and drawing on still earlier sources. But, as we noted, the teachings of Suarez called attention to a newly emerging problem. If law was the command of a superior and its essential function was to impose obligation how could there be room in a legal system for a law of mere permission? And also, granted that an area of legally permitted acts existed, did this merely reflect the fact that no system of law can provide for every human contingency? Or was the conduct allowed by the law grounded on a permissive law that expressed the will of a legislator just as a preceptive law did? Hobbes suggested both opinions in different contexts.2 The works of Selden and Pufendorf exemplify some different ways of addressing such problems. 2. In the Leviathan he wrote that it was impossible to set down enough rules to regulate all of human conduct and that therefore the liberty of a subject was defined by this silence of the law. See Thomas Hobbes, Leviathan, edited by M. Oakeshott (Oxford: Basil Blackwell, 1946), 2.21,38. In a later work, here discussing divine permissions, he wrote, “I find no difference between the will to have something done and the permission to do it when he that permitteth can hinder it.” See English Works of Thomas Hobbes of Malmesbury, edited by W. Molesworth, 11 vols. (London: J. Bohn, 1839– 45), vol. 4, 250.

12

John Selden

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 to undergird a whole system of jurisprudence that reflected his studies of both English law and Talmudic law.2 With all his learning, Selden was anything but a “remote and ineffectual don.” As a member of Parliament in the 1620s and again 1. Selden’s Talmudic learning is discussed in J. P. Rosenblatt, Renaissance England’s Chief Rabbi: John Selden (Oxford: Oxford University Press, 2006). 2. For an introduction to Selden’s jurisprudence see R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 83–102, and Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1993), 205–21. Some of Tuck’s points were criticized by J. P. Sommerville, “John Selden, The Law of Nature, and the Origins of Government,” Historical Journal, 27 (1984), 437–47, and “Selden, Grotius, and the Seventeenth-Century Revolution in Moral and Political Theory,” in V. Kahn and L. Hutson, eds., Rhetoric and Law in Early Modern Europe (New Haven: Yale University Press, 2001), 318–44.

 

251

252  For and Against in the 1640s he became a leading spokesman for a group of “constitutional royalists” who sought to uphold the rightful authority of the crown while resisting the more absolutist policies of Charles I. In pursuing this policy he always argued, not from some abstract doctrine of natural rights, but from the actual laws of England. On the eve of the civil war, in the crisis of 1642, Selden hesitated but eventually decided that, although the actions of Parliament might be illegal, those of the king certainly were. He therefore supported the parliamentary cause and continued to sit in the House of Commons after the war broke out.3

Selden’s Jurisprudence Selden’s teaching on natural law was presented mainly in three of his many works, a commentary on Fortescue’s De laudibus legum Angliae, the Mare clausum, translated as Dominion of the Sea, and the De jure naturali et gentium iuxta disciplinam Ebraeorum (On Natural Law and the Law of Nations According to the Teaching of the Jews). The Mare Clausum was written as a direct response to Grotius’s Freedom of the Seas during an Anglo-Dutch dispute over fishing rights in 1618. In the final work, Selden, the learned common lawyer, achieved the considerable feat of presenting an extensive treatise on natural law in the form of a commentary on Jewish Talmudic scholarship. In these works and in some of his earlier writings Selden developed his own characteristic system of jurisprudence. Unfortunately for his readers Selden was, in the words of a modern biographer, “perpetually overburdened with the weight of his learning,” so that his style of writing in both English and Latin could be very convoluted.4 Commentators have often noted the contrast between his tortuous writing and the clarity and wit of the conversa3. On Selden’s parliamentary career see R. Tuck, “‘The Ancient Law of Freedom’: John Selden and the Civil War,” in J. Morill, ed., Reactions to the English Civil War, 1642–1649 (New York: St. Martin’s Press, 1982), 137–61. 4. E. Fry, “John Selden,” in F. Pollock, ed., Table Talk of John Selden (London: Quaritch, 1927), 153–85 at 182. Subsequent quotations from the Table Talk and other works of Selden are taken from D. Wilkins, ed., Joannis Seldeni juris consulti Opera omnia tam edita quam inedita, 3 vols. (London: Guil Bowyer, 1726).

John Selden  253 tion recorded in his Table Talk, so that sometimes a terse observation in the Table Talk serves to clarify an obscure passage in the learned works. It will be useful, therefore, to cite a few of his comments in order to introduce some key features of his juristic thought before turning specifically to his treatment of permissive natural law. Selden’s jurisprudence was Erastian, positivist, and pragmatic. Like Grotius, and Hooker a little earlier, he held that religious affairs were best managed by the civil authority. Asked “Whether the church or scripture is the judge of religion,” he replied, “Neither, but the state.” And, again, “Divines ought to do no more than the state permits.”5 Selden had little enthusiasm for the claims of the Anglican bishops that the royalists defended but he also opposed the establishment of an intolerant presbyterian discipline for the Church of England, something favored by many in Parliament.6 As Tuck observed, he was not a skeptic about religion; he was a skeptic about churches. The two features of Selden’s jurisprudence that evoked most of his comment on permissive natural law were his insistence on the inviolability of contracts and his teaching that all law, both civil law and natural law, derived its authority from the command of a legitimate superior, not from its inherent justice or reasonableness. In this way of thinking, civil law for English people was based on the supreme authority of Parliament; and natural law, binding on all peoples, was ordained by God, the supreme ruler of all. That contracts should be kept might seem a matter of mere common sense; there would be no point in making them unless it was generally understood that they must be honored. But Selden pressed the point with unusual rigor. In his work the old idea of self-obligation took on a new force. Any contract was binding, he held, even if, on the face of it, it seemed manifestly unjust or baleful in its effects. If a man contracted to pay 100 pounds for a glove of no real value he was bound by the contract.7 If a people yielded power to an absolute sovereign they were obliged to obey his commands. Asked about the right of resistance to a ruler, Selden replied: “We must look to the contract, 5. Selden, Table Talk, Opera 3, 2067, 2057. 6. Ibid., 2064. 7. Ibid., 2024.

254  For and Against if that be rightly made, we must stand to it. If we once grant that we may recede from contracts, upon any inconvenience that may afterwards happen, we should have no bargain kept.”8 Even unjust rulers derived their power from God indirectly since God commanded that agreements must be kept (fides est servanda). “All power is of God means nothing more than fides est servanda. When St. Paul said this, the people had made Nero emperor . . . then God comes in and casts a hook upon them, keep your faith.” For Selden law itself was a kind of contract. “Every law is a contract between the king and the people and therefore to be kept.”9 He recognized a right of resistance only if a king broke his part of the contract and so voided it. Of course, that is what he thought had happened in England in the 1640s. In other contexts Selden argued that the obligatory force of natural law also came from command, from a command of God. I cannot fancy to myself what the law of nature means, but the law of God. How should I know I ought not to steal, I ought not to commit adultery unless some body had told me so. . . . Whence then comes the restraint? . . . It must be a superior power, even God Almighty.10

Going against the trend of much earlier natural-law thinking Selden insisted at one point that natural law could not derive its force from right reason. When the school-men talk of recta ratio in morals, either they understand reason, as it is commanded from above; or else they say no more than a woman when she says a thing is so, because it is so.11

In spite of such uncompromising assertions, Selden’s idea of natural law was by no means simplistic. In the Table Talk, recorded in his later years, he was not dismissing the law of nature as insignificant but only emphasizing its divine origin. Earlier, in a series of works from 1610 onward, he had made his own notion of natural law a central element in a complex system of historical jurisprudence that we can now begin to consider. Selden held that, since civil laws and forms of government were based on human consent (in England 8. Ibid., 2041. 10. Ibid., 2041.

9. Ibid., 2057, 2041. 11. Ibid., 2065–66.

John Selden  255 typically expressed by Parliament), they were (unlike natural law) mutable, shaped by humans as responses to changing contingent circumstances. Accordingly, he reflected deeply on the way the English constitution and English common law had developed in the course of the centuries until they reached the forms that he knew in his own day. In the early seventeenth century such inquiries were not inspired only by antiquarian curiosity; they were the subject of a considerable controversy with political overtones. Some common lawyers, concerned to show how the power of the monarch, James I, could be restrained by law, cherished the idea that the constitution of England, complete with Parliament and the common law, had existed virtually unchanged from time immemorial.12 In place of this, Selden presented a sophisticated story of continuity and change—continuity because the laws of England had been shaped by slow accretions throughout the centuries, change in that the eventual outcome was very different from the original state of affairs. One of the standard authorities for the idea of an unchanging ancient constitution was the De laudibus legum Angliae of Sir John Fortescue written ca.1470. Selden, in turn, presented an interesting account of his own point of view in notes appended to an edition of the De laudibus that he published in 1616. Fortescue wrote that, although England had been ruled successively by Britons, Romans, Saxons, Danes, and Normans, nevertheless, through all that time, “this realm was still ruled by the selfsame customs that it is now governed withal.”13 For Fortescue, the very survival of the English constitution for so long was a proof of its surpassing excellence. Selden too wanted to defend the existing institutions of England, but his own studies had shown that Fortescue’s account was a mere myth. In a dissenting note, he wrote, 12. A standard work is J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957). For subsequent literature and controversies concerning this issue and for Selden’s contributions see P. Christianson, “Young John Selden and the Ancient Constitution, ca.1610–1618) Proceedings of the American Philosophical Society 128 (1984): 271–315. 13. De laudibus legum Angliae (London: for the Company of Stationers, 1616), fol. 38v.

256  For and Against But in truth . . . all laws in general are originally equally ancient. All were grounded upon nature . . . and, nature being the same in all, the beginning of all laws must be the same . . . saving that additions and interpretations in succeeding ages increased and somewhat altered them, by making a Determinatio juris naturae which is nothing but the civil law of any nation. For although the law of nature be truly said immutable, yet it is as true, that it is limitable . . . and the several conveniencies of divers states, have made those limitations, which the law of nature hath suffered, very different.

Thus, all peoples began with the same set of laws, the laws of nature, but over the course of the centuries different nations supplemented those laws in different ways according to their own “conveniences.” “Hence it is that those customs which have all come out of one fountain, Nature, thus . . . vary in several commonwealths.” Responding to an argument that the existing common law must have existed from time immemorial since no one knew when it began, Selden wrote that the law was indeed ancient in origin but that it had attained its existing form through a long process of growth and change. When and how began your common laws? . . . as the laws of all other states, that is, When there was first a state in that land, which the common law now governs. Then were natural laws limited for the conveniency of civil society here, and those limitations have been from thence increased, altered, interpreted and brought to what now they are although perhaps (saving the merely immutable part of nature), now, in regard of their first being, they are not otherwise than the ship, that by often mending, had no piece of the first materials, or as the house that’s so often repaired that nothing remains of the original material, which yet, (by the civil law) is to be accounted the same still.14

As Christianson observed, this is a rich and complex passage. But it offers some difficulties. The idea that something could remain legally the same even when all its parts had changed was a familiar one; it had been used by earlier jurists to explain the nature of a corporation, which remained the same legal entity even after all the 14. Opera 3, 1891–92. The note refers to the whole of the text of Selden’s commentary printed above. The text is discussed and printed in full in Christianson, 297–98. The example of a ship that remained the same as all its parts changed was an ancient one. See Digest, 5.1.76.

John Selden  257 original members had died and been replaced by others. But the doctrine does not work so well when applied to the interplay between natural law and positive law in the shaping of a juridical culture. In Selden’s account everything did not change. The “merely immutable part” of natural law remained, but it is not clear what its function, if any, was in the existing structure of English law. At first Selden wrote that the laws of nature which originally formed the civil law of all peoples were “somewhat altered,” then that they were “immutable.” He first wrote of “additions” to the original law of nature, then of “limitations.” When he refers to a determinatio juris he seems to give a whole new historical dimension to the doctrine of Aquinas about the derivation of positive law from natural law by way of “determinations”; but Selden did not really regard the laws of Parliament as specifications of the general principles of natural law in the manner of Aquinas. This became clear when, pressing his own view to the point of absurdity he observed a few years later that, if Parliament decreed that it should be a capital offense to rise before nine o’clock in the morning, that would be law for England.15 It is evident that, for Selden, the original rules of natural law left ample space for different peoples to make their own laws. So far he had not given any clear account of his understanding of natural law itself. However, at some point after writing the notes on Fortescue he came to realize that an adequate discussion of growth and change and persistence in a legal system needed a fuller account of the relationship between natural law and positive law and that, in particular, he needed to introduce into his argument what he would later call a “common and obvious distinction” between preceptive natural law and permissive natural law. This became apparent in his next work, the Mare clausum or Dominion of the Sea.

Mare clausum Selden’s aim in this work was to prove that no natural law prohibited English dominion of the surrounding seas and that many 15. See Tuck “Ancient Law of Freedom,” 141. For Aquinas on “determinations” of natural law see Summa theologiae, 1.2ae.95.2

258  For and Against positive laws affirmed it. Although the Mare clausum was written in 1618, only two years after the notes on Fortescue, it was not published until 1636, and it is impossible to know how much the early draft was changed in the final version. Some passages seem to reflect an earlier stage in Selden’s thinking; others clearly refer to Grotius’s De jure belli, published in 1625. In any case, the distinction between preceptive and permissive natural law, that henceforth would hold a central place in Selden’s jurisprudence, could already be found in the work of Grotius, the Mare liberum, that Selden set out to refute in 1618. Arguing that the sea could not be owned by any one nation, Grotius wrote, “Nature not only permits but commands this.” Selden quoted this passage and then at once launched into a new account of the various meanings of the word jus, which, in a manner quite different from his discussion of two years earlier, now focused on the distinction between the commands and permissions of law. There had been several earlier taxonomies of the different meanings of jus. In a familiar passage of Roman law, Ulpian listed three meanings of the term as it referred to natural law, the law of nations, and civil law. Aquinas also gave several definitions of jus. The fourteenth-century canonist Johannes Monachus succeeded in finding two dozen different meanings, each supported by an appropriate legal citation. Suarez, followed by Grotius, gave another threefold division. Selden ignored these prestigious precedents and gave a new classification of the meanings of jus in which the primary, basic distinction was between permissive law and obligatory law. Jus . . . is considered in two ways, either as obligatory, which is also called preceptive, or as permissive, which writers commonly call concessive. As obligatory it deals with things that are commanded or forbidden as, for instance to give every man his own . . . as permissive it concerns things that are neither commanded nor forbidden, but permitted, such things as the act of buying and selling or the conditions attached to contracts.16 16. Mare clausum seu De dominio maris, Opera 2, 1192–93. Selden quoted here the words of Grotius (Quia natura commune hoc esse non permittit, sed jubet), then continued with his own definition of jus. “Jus autem . . . consideratur bifariam: aut qua obligativum est, quod et praeceptivum dicitur, aut qua permissivum est, concessivum itidem scriptoribus nuncupari solitum.”

John Selden  259 Selden continued his exposition with further distinctions. Both kinds of law could be common to all of humankind or not common. And the law common to all could be either natural or divine. Natural law was known by “the light of natural reason” or “right reason”; divine law was found in the works of scripture.17 These observations then led to a crucial distinction between the characteristics of preceptive law and permissive law. Everything in natural or divine law that was obligatory, whether “from the very nature of the thing” or “from the authority of the founder of nature” was immutable; it could be supplemented by additional laws but never changed. On the other hand, what was merely permitted by the laws was variable; it could be changed according to the judgment of those having authority in such matters and so was subject to being repealed and qualified and altered from day to day.18 Out of these additions to what is obligatory and alterations to what permissive there emerges another kind of law that is narrower in scope and which refers, not to all peoples or to the whole human race but only to a particular portion of it; and this law is properly called “positive” (as being posited either by God or by man) or sometimes “civil”, as an addition of natural right reason.19

With this distinction Selden had explained, though without referring to the earlier work, how the anomalies in the notes on Fortescue could be resolved. It is as though, once he had been reminded of 17. Ibid., 1192–93, “aut naturale est aut divinum: scilicet aut naturalis rationis lumine seu recto rationis usu manifestum . . . aut divinis in eloquiis, scripto mandatis, praestitutum: quorum utrumque jus gentium universale . . . recte appellandum.” The references to natural law as a law of reason in the text above seems inconsistent with the more strongly voluntarist views that Selden expressed later. Perhaps he let this material stand in the 1636 edition to show that he could refute Grotius on the Dutch scholar’s own terms. 18. Ibid., 1193, “Quicquid in horum alterutro obligativum est, sive ex ipsa rei natura, seu potius ex naturae parentis autoritate, habetur inter homines immutabile. . . . Id quod de permissivo enim . . . pro eorum qui rebus praesunt, judicio, ex sui natura variatim esse mutabile . . . nemo non videt . . . cum interea obligativum genus incrementa . . . non mutationes, quibus nullatenus vis ejus minuatur . . . admittat.” 19. Ibid., “Ex obligativi hujusmodi additionibus et permissivi mutationibus conflatum est alterum illud jus . . . atque recte positivum (sive scilicet a Numine sive ab hominibus positum) nuncupari solet, interdum etiam civile et rectae rationis additamentum.”

260  For and Against the old distinction between preceptive and permissive law in reading the work of Grotius, he realized that it could be used, not only for his immediate purpose of defending England’s claim to the adjacent seas, but also to clarify his previous discussion of natural and positive law. Two years earlier, while discussing the development of English common law, he had referred to natural law as being somewhat altered by human laws but also as immutable. Now he explained that two kinds of law were involved. Preceptive natural law could never be changed though it could be supplemented by additions; permissive natural law could be altered by subsequent human legislation. The distinction would recur throughout the subsequent argument of the Mare clausum and again in Selden’s later work, the De jure naturali. After the initial definitions Selden next turned to international law. In the manner of Suarez he distinguished between jus gentium as referring either to laws that were common to all or many nations, or to those that concerned relations between states. And, like Grotius and many others, he distinguished conventionally between a primary and a secondary jus gentium. The natural or divine law common to all humankind, he wrote, was called by jurists the primeval law of nations; the secondary law was introduced by the compacts and customs of various peoples.20 And here again, Selden introduced the language of obligatory and permissive law. The secondary law of nations consisted of additions to the universal obligatory law and alterations to the universal permissive law.21 All this analysis was presented to establish a groundwork for Selden’s attack on Grotius’s theory about freedom of the seas. He went on to argue that the divine law of scripture provided many examples that permitted dominion over areas of the sea by nations and their rulers, and that therefore, “it must be acknowledged that by the universal permissive law any man may acquire (this dominion) no less than dominion of land.”22 20. Ibid., 1194. Here he described law imposed on the nations by a superior, divine or human, as “imperative” and that established by customs and compacts as “intervenient.” See also above, n.18. 21. Ibid., 1194. “ex additionibus quae juri gentium universali obigativo et mutationibus quae permissivo universali accesserint.” 22. Ibid., 1202.

John Selden  261 Turning next to the law of nature, Selden repeated that this law was a principal ground of the law of nations. He argued, therefore, that the practices of all nations, or at least the more noble ones, provided a sure guide to what was permitted by natural law. All nations that have acknowledged the dominion we are inquiring about . . . must be accepted as competent witnesses to the permissive law of nature, or else it must be said that so many nations, and those the most eminent ones, have for many ages, offended against nature (which, I think, no one dreams of).23

The argument continued with many examples to show that various peoples from ancient times onward had indeed recognized private dominion of the seas. A second principal ground of Selden’s argument against Grotius, along with his categorization of the different types of law, was his treatment of the idea of dominion, which was evidently of central importance in a dispute about ownership of the seas. Like many thinkers from the twelfth century onward (and like Grotius in his later work) Selden held that individual ownership had its origin in a primitive compact established in accordance with permissive natural law. Neither natural law nor the universal divine law prohibited either common ownership or individual property, Selden wrote; rather the laws permitted either alternative.24 He was vague about just when and how the first division of property occurred, but clear that it must have come about through consent and compact. But in the division of lands there intervened a kind of consent of the whole body or totality of mankind, through a compact that would bind their posterity.”25 As for land that remained vacant after the original division (the res nullius of Roman law), another compact established the principle that it should be assigned to the first occupant. Otherwise it would have remained common property.26 Summing up his 23. Ibid., 1210. 24. Ibid., 1197, “Ut id scilicet fieret, neque expressim jubebat, nec vetuit jus sive naturale sive divinum . . . sed permisit utrumque, tam nempe rerum communionem, quam privatum dominium.” 25. Ibid., “In territoriis ita distribuendis, consensus veluti humani generis corporis seu universtatis (interposito fide, quae etiam posteros obligaret) intervenit.” 26. Ibid., 1198, “Adeo ut non minus de distributione per assignationem,

262  For and Against argument, Selden again appealed to both permissive and obligatory natural law. And all these things had their origin from the alteration of the universal or natural law of nations that is permissive. Thereafter private property was established by positive law. But still it was confirmed by the universal obligatory law that compacts must be observed and faith must be kept.27

The argument was similar to the one presented by Grotius in the De jure belli, though with more emphasis on compact and permissive law, and indeed Selden quoted Grotius approvingly at this point. His objective here was not to dispute the Dutch scholar’s premises but to show that they did not necessarily lead to his conclusions. Thus, when Grotius presented arguments aiming to prove that the sea could not be divided, Selden undertook to refute them one by one. Where Grotius wrote that the sea was unbounded, Selden replied that it was bounded by the land masses that surrounded it and that, moreover, areas of the sea could be demarcated by lines of latitude and longitude. Where Grotius wrote that the sea was inexhaustible and that therefore there was no reason to appropriate particular portions of it, Selden replied that the produce of the sea (the produce of the fisheries that were in dispute) was by no means inexhaustible.28 But by far the greater part of his argument, making up more than half of the whole book, consisted of a mind-numbing array of historical and legal precedents designed to prove that England had claimed dominion of the surrounding seas for many centuries and that the claims had often been recognized. Although Selden and Grotius wrote on opposite sides in this controversy, their underlying ideas had much in common, and each greatly respected the scholarship of the other. In the dispute over freedom of the seas both authors were arguing as lawyers, writing to a brief. One feels that, if their assignments had been different, Groquam de occupatione rerum derelictarum ad libitum, pactum universale, sive verbis disertis sive tactite ex morum usu, initum esse decernamus.” 27. Ibid., 1199, “Atque haec omnia ex mutatione juris gentium unversalis seu naturalis, quod permissivum est, orta sunt. Inde enim introductum dominium privatum, ex jure nempe positivo. Sed interea stabilitum est ex jure universali obligativo, quo pactis standum est et servanda fides.” 28. Ibid., 1257–60.

John Selden  263 tius could just as easily have written a Mare clausum and Selden a Mare liberum.

Natural Law and Jewish Law In the De jure naturali et gentium juxta disciplinam Ebraeorum, Selden’s final, mature treatment of preceptive and permissive natural law, the author expanded some of the arguments of the Mare clausum and modified others. The underlying premise of the whole work maintained that a universal natural law must be derived from commands of God given to the whole human race. The book acquired its unusual form because Selden accepted a traditional Jewish teaching, derived from Talmudic sources, that God had given such laws first to Adam and then to the children of Noah, the Noachidae who, after the Flood, comprised all of humanity. According to the tradition accepted by Selden, there were seven such laws: prohibitions of blasphemy, idolatry, murder, incest, theft, and the eating of meat taken from living animals, and one command, that a system of civil jurisdiction be instituted.29 For Selden these laws defined the essential content of a natural law applicable to the whole human race. (The subsequent law of Moses was directed only to the Jewish people.) The bulk of the book consisted of a detailed commentary on each law in turn, but Selden also provided a lengthy introductory section explaining the underlying structure of his juristic thought. At the outset of the work he mentioned several different views about the possible sources of natural law. Some authors appealed to the behavior of all animals, others to the customs of all peoples or the greater part of them, others to natural reason, and still others to the commands of God, the author of nature and of natural reason. Selden eventually rejected all these positions except the last one. At first, though, he set aside this question for later consideration and introduced the next stage of his work with explanations of some key terms that he would use, including liberty, law (jus), and obligation. He returned to these concepts from time to time as the work 29. De jure naturali, Opera 1, 158.

264  For and Against proceeded, unwinding his argument piece by piece so to speak, as he explored their roles and interrelationships. The argument began with a discussion of liberty, and of law considered first as a restraint on liberty; but this led at once to a detailed reconsideration of the functions of both preceptive and permissive law. To summarize briefly: When he considered preceptive law as limiting liberty, Selden wrote that one could envisage a state of simple absolute freedom, as was suggested by the first words of the Roman-law definition of liberty. “Liberty is a natural power to do what one wishes.”30 But, he continued, this was only a hypothetical sort of freedom. One could only conceive of it as a geometer might imagine a line prolonged to infinity. The next words of the Roman law provided a necessary qualification, “unless one is prevented by force or law.”31 Setting aside mere restraint by force, Selden examined further the function of preceptive laws. Such laws might be natural or civil. They consisted of commands and prohibitions made by God or by a legitimate human power and they imposed a duty of obedience on those subject to them. Hence, such law was plainly obligatory, Selden wrote here; and obligation, he continued, constituted a primary relationship between persons and law.32 Selden further argued that, if the absolute liberty to do whatever one wished was to be restrained by legal obligation, the obligation must be accompanied by a threatened penalty for violation of the law.33 The penalty could be inflicted by human authority or by God; its essential purpose according to Selden was retributive, but it could also have “medicinal” and deterrent effects.34 30. Ibid., 105, “Naturalis facultas cuique permittens facere quae velit . . .” 31. Ibid., “nisi si quid vi aut jure prohibetur.” 32. Ibid., 106, “Unde jus plane conflatum obligativum. Atque ex jure ejusmodi obligativo . . . in personis nascatur inde ad officium exsequendum obligatio et debitio, quae primaria est inter eas et jus relatio.” 33. Ibid. Selden wrote here that one could no more imagine obligation without penalty than fatherhood without a child. It is not clear though that Selden regarded fear of punishment as the sole ground of obligation. Tuck affirmed this, Sommerville denied it. Selden did credit humans with a kind of moral sense that he defined with the medieval term “active intellect” (intellectus agens). Medieval thinkers differed about the meaning of the term. Selden described it as a kind of divine illumination of the intellect through which humans could know that the commands originally given by God were always to be observed. 34. Ibid., 110.

John Selden  265 So far Selden had considered law as a restraint on human liberty. But that was only one side of the coin. The author next turned to the theme of permissive natural law. Acts that were neither commanded nor forbidden, he wrote, were called “adiaphora” or “permitted.” And permission was related to permissive law as obligation was to obligatory law. “And to those acts . . . permission and permissive law pertain just as obligatory law pertains to others.”35 To this point Selden had treated permissive law as implying merely an absence of prohibition; now he explained further how permission could be real law, established by the will of a legislator. Just as obligatory law was instituted by the will of a founder and designated some acts as illicit, [S]o too the remaining acts, those to which he willed not to attach obligation, he designated as permitted.36

Selden illustrated further the necessary complementarity between preceptive law and permissive law with an analogy. A boundary dividing an area of land indicated both what was excluded and what was included, and similarly a line marking off a segment of a circle defined the areas on both sides of the line.37 So too preceptive law and permissive law each defined the scope of the other; what was outside the realm of preceptive law was permitted. In these passages Selden was addressing an issue that Suarez had earlier discussed at length, but he approached it from a different point of view. Suarez had encountered a major problem in explaining the nature of permissive law since he held that an essential characteristic of all law, understood as the will of a legislator, was that it imposed obligation. Yet he could not simply ignore the idea of a permissive natural law since he found it firmly embedded in the juristic and theological sources that he relied on. Also he found it necessary to make use of the idea in his account of natural law and human freedom. He therefore argued, as we saw, that permissive law could 35. Ibid., “Actus autem residui, seu qui in jussis . . . non continentur, adiaphora fiunt seu permittuntur. Atque ad hos . . . tam spectat jam permissio atque jus permissivum quam ad istos obligatio seu obligativum jus.” 36. Ibid., “Nam praescriptum jus obligativum . . . tam actus residuos, seu ad quos nolit ille obligationem attinere, permissos designat, quam alteros illos . . . illicitos.” 37. Ibid., “indicat tam extraclusam quam assignatam agri partem.”

266  For and Against include an element of obligation insofar as it obliged others to respect the permission granted. And he further held that only a “positive” permission of a legislator had this effect. For Suarez, permission understood as mere absence of command or prohibition was not a form of law but a negation of law. This argument left open two questions. Could absence of command represent the will of a legislator? And could a merely permissive law impose obligation? In discussing these questions Selden did not reply directly to Suarez’s argument or to Grotius’s half-hearted attempt to sustain it, but simply denied some of its basic premises. He fully accepted a positivist, command theory of law like that of Suarez but denied that such law necessarily imposed obligation.38 Indeed, in Selden’s definition, the essential characteristic of permissive law was absence of obligation. But this law still expressed the will of a legislator (and, of course, where natural law was concerned, the will of God). The legislator showed his will to permit a range of acts, to leave them to human free choice, by choosing not to command or prohibit them. Among the earlier authors we have considered the one whose position most closely resembled that of Selden on this point was Marsilius of Padua. According to Marsilius, an act that was not commanded or forbidden by a legislator was said to be “legally permitted,” and he too defined perissive law as law that did not oblige on pain of punishment. But although Selden knew the work of Marsilius there is no evidence of direct influence here.39 In the next sequence of chapters, Selden argued at length that natural law could not be derived from the behavior of animals, or from the customs of all or most peoples, or from unaided human reason (here departing from his earlier teaching in the Mare clausum). Animals shared some proclivities with humans but they knew nothing of obligations and permissions, of penalties and rewards. All the peoples of the world were not known in ancient times or even in 38. Ibid., “. . . in actibus juris permissivi . . . habetur ratio permissionis, id est obligationis nondum praestitutae adeoque poenae absentis.” 39. In the De synedris (Opera 1, 418–19), Selden cited both Marsilius of Padua and “that most distinguished philosopher and theologian William of Ockham” in support of his Erastian views.

John Selden  267 his own age; and among those that were known many evil customs could be found. Various schools of philosophy, relying on pure reason, had taught widely different doctrines; and, in any case, reason alone without the command of a superior could not induce obligation. After dismissing all the foregoing arguments Selden finally introduced the source of natural law that he held to be the true one. Having rejected the behavior of animals and the customs of nations, however widely used, and unaided human reason . . . it remains that we consider the fourth way in which the laws of nature are sought out and designated, or their efficient cause—the command, authority, and declaration of the founder of nature, the most sacred Divinity.40

Selden cited a mass of authorities from ancient philosophers and church fathers, and from more recent theologians and jurists, in favor of this doctrine. Then, before moving on to consider the specific commands that God gave to the Noachidae he introduced another key passage, presenting a further development in his argument about permissive and preceptive natural law. He had stated in the foregoing argument, and on various previous occasions, that obligatory law was derived from the command of a legislator. Now he set out to explain how a merely permissive natural law, one that left humans free to make laws for themselves and enter into voluntary contracts with one another, could give obligatory force to such laws and contracts. Suarez, as we saw had given his own answer to the question of how permission could induce obligation. Selden addressed the problem by following a different path of argument. His account began with another categorization of the different types of law. All law was divine or human. Divine law could be either natural or positive and both kinds of divine law could be either obligatory or permissive. Human law was constituted by additions to divine laws insofar as they permitted this. As regards the commands of divine law, there was no problem concerning obligation. Everyone, except those who denied that there was a supreme ruler of all, understood that God had shown what was evil or good, and had commanded that the one be shunned and the other embraced. 40. De jure naturali, Opera 1, 141.

268  For and Against Evidently this was the efficient cause of their obligatory force. And such laws remained firm and immutable for all time.41 But how could moral obligation inhere in the natural law that was merely permissive or in human laws derived from it that could change from day to day? Selden explained that, in the beginning, when humans had only natural law to guide them, anything not contained in the obligatory law of nature necessarily belonged to permissive natural law. Then, making explicit a distinction that we noticed in considering Grotius (and that could be found centuries earlier in Ockham), he added that this permissive law had two effects. In one way it left individual persons free to act as they chose according to their own judgments; but it also permitted them to make laws, enter into contracts, and establish forms of government. Thus permissive natural law allowed for two kinds of human acts, those that were left entirely to the free choice of individuals and those that were restrained by various kinds of agreement established by mutual consent.42 “As regards the latter kind . . . it is generally acknowledged that what human societies have commanded, prohibited, or established . . . insofar as all consented as citizens, they are obliged to obey.”43 Citizens, then, were obliged by the laws of their respective states. So far, so good. But this still left open the key question. Where did this obligation come from? (At undenam obligatio ista?)44 Acts that were now prohibited by law had certainly once been permitted by mother nature, Selden wrote, and he had earlier insisted that obligation could not arise simply from human reason. It required the com41. Ibid., 148, “Atque illinc plane habetur causa efficiens juris obligativi. . . . Unde et jura naturalia semper firma et immutabilia permanere.” 42. Ibid., 149, “Permissivi autem juris naturalis actus, qua huc spectant, duplicis erant generis; aut qui hominum singulis arbitrio naturaliter seu a numine relicti . . . aut qui sic ex ratione et consensu inito coerciti sunt ac illiciti facti.” 43. Ibid., “Quod vero ad posterioris attinet generis . . . quid ab hominibus sociatis coercitum, vetitum seu constitutum est, ad illud . . . observandum obligatos esse quotquot et quatenus civiliter consenserant universos, esse solet in confesso.” This was not the doctrine of Suarez that a permission granted to one party imposed an obligation on others; in Selden’s argument it was the people who made use of the permissive law who incurred obligation. 44. Ibid.

John Selden  269 mand of a superior. And so, he now argued, the obligation of human law must come from divine authority, from some principle of natural law. To explain how such obligation could arise from a permission of natural law Selden turned to an example from the ancient Roman Empire. The emperor, the supreme ruler, permitted local officials and local communities to institute laws; but in authorizing them to do so he obviously must have intended that the laws be observed, that is that they should induce obligation.45 In the same way, God, by his authority and command, had permitted humans to limit their own freedom by establishing laws or entering into compacts; but, Selden argued, this would not be intelligible unless we added that God associated obligation with such laws and agreements. “Thus there inhered in the contracts and positive or civil laws of humans a natural and plainly divine obligation.”46 Selden’s argument here was not the same as the earlier one of Suarez. He was not maintaining that permissive law necessarily included an element of obligation because it required others to respect whatever the permission granted; his point was that the beneficiaries of the permission themselves were obliged to honor the commitments that they could freely enter into by virtue of the permissive natural law (expressing the will of God) that allowed this.47 And, Selden concluded, this is what St. Paul meant when he said, “All power is from God.”48 In this complex argument, permissive natural law implied an obligatory natural law asserting that compacts freely entered into must be kept and laws must be obeyed. There was a necessary interplay between permission and obligation. As so often Selden made the same point plainly in his conversation. 45. Ibid. 150, “Sic obligatio . . . ex ipsius principis autoritate ac imperio pendet, qui dum permittit pro eorum libitu decreta legesque tum ferre tum rescindere aeque etiam in ipsa permissione vult sic latas leges . . . observari, id est obligationem inducere.” 46. Ibid., “Ita pactis et legibus hominum positivis seu civilibus inerat obligatio quidem naturalis id est plane divina.” 47. Ibid., “Quemadmodum et hic obligatio ad ea attinens quae ex jure permissivo . . . ab hominibus constituta sunt, ex principiis et capitibus petenda erant juris naturalis obligativi.” 48. Ibid. See also Selden, Table Talk, Opera 3, 2057.

270  For and Against Keep your contracts. So far a divine goes, but how we make our contracts is left to ourselves. . . . The want of that common and obvious distinction between jus praeceptivum and jus permissivum does much trouble men.49

Selden ended this phase of his argument with a crisp summing up. “The principles of obligatory natural law relevant here are, “Contracts and civil laws must be honored. Faith must be kept.”50 Suarez had argued that permissive law could include an element of obligation; Selden showed that obligatory law must include an element of permission. After this initial essay on law in general, Selden moved on to the principal theme of his whole book, the detailed commentary on each of the laws that God had given to the Noachidae. But this led on to one final problem. As we have seen, for Selden the binding force of laws and contracts was derived from the natural law principle that compacts must be kept; and the content of natural law was conveyed to humans in the precepts that God gave to the Noachidae. But the seven laws of the Noachidae said nothing about making or keeping contracts. They did not include the fundamental principle, Fides est servanda. Selden finally addressed this issue when he considered the fifth law, the one against theft. His argument was presented in a typically intricate fashion but its main point can be summarized briefly. God’s permissive law allowed humans to institute private property by entering into compacts with one another that required good faith for their observance. An act of theft not only violated the human law that prohibited such acts but also offended against the good faith on which all property ownership depended. When God prohibited theft in the laws of the Noachidae he condemned this breach of faith; but in doing so he necessarily affirmed its counterpart, the fundamental law so dear to Selden, “Contracts must be kept.” But truly a higher source must be sought for the first cause, the first of all by which . . . the foundation of ownership and obligation is sustained, that 49. Selden, Table Talk, 2024. 50. De jure naturali, Opera 1, 150, “Juris autem naturalis obligativi capita, quorum in hanc rem erat tunc usus, fuere Pactis et regiminum formulis civiliter initis standum, fidem servandum.”

John Selden  271 is the divine precept concerning keeping a promise or contract or what one has consented to, which one can plainly see is necessarily included in this prohibition of theft, in that it is forbidden to take away what belongs to another against what the law arising from faith and consent allows.51

Aquinas had held that the first principle of natural law was, “Good is to be sought after.” Selden’s first principle was, “Contracts are to be kept.” On one level Selden’s treatment of contracts might seem simplistic. During the previous century a substantial scholarly literature had grown up concerning contractual obligations. Building on the work of Aquinas, the authors commonly associated the obligatory force of contracts with the Aristotelian virtue of truth telling; they distinguished between the “substantial” and “accidental” terms of a contract; they discussed at length the various factors that might make a contract invalid or unenforceable, such things as duress, error, unjust enrichment, unforeseen change of circumstances.52 Selden displayed no interest in all this in his writings on natural law. He just kept repeating that contracts must be kept because God so ordained. On the other hand his treatment of the different varieties of natural law was complex and sophisticated. In Selden’s work there was a constant interplay between permissive natural law and preceptive natural law. Neither was fully intelligible without the other. Preceptive natural law implied permissive natural law and vice-versa, just as a boundary showed what was excluded as well as what was included. Each kind of law needed the other to function properly like the two blades of a pair of scissors or two gears meshing together. Preceptive natural law ordained that contracts freely entered into 51. Ibid., 608, “Sed vero altius est plane repetanda causa prima . . . quo nitatur fundamentum dominii atque obligationis; id est ab ipsius numinis praecepto de contractu, fide, consensu servandis; quod palam visitur in hoc furti interdicto, eoque necessario includitur, dum quod ex contractu . . . est alienum id auferre contra quam jura ex fide itidem ac consensu interposito nata sinunt, vetatur.” 52. On these developments see J. Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991). On contracts in a variety of seventeenth-century literary contexts see V. Kahn, “Wayward Contracts. The Crisis of Political Obligation in England, 1640–1674 (Princeton: Princeton University Press, 2004). Selden was obviously familiar with all the details of the law governing contracts in English common law.

272  For and Against must be kept, but there could be no such contracts if permissive natural law had not allowed humans to oblige themselves in this way. Preceptive natural law prohibited theft, but an act of theft could occur only when permissive natural law had authorized the institution of private property. Permissive natural law allowed a people to institute any kind of government it chose, but once the government was established preceptive natural law obliged the subjects to obey its commands. Such ideas were present or implied in earlier treatments of natural law but Selden stated them explicitly and worked out their implications in detail. For Selden an important freedom granted to humans by natural law was a freedom to oblige themselves. He was not interested in defending natural rights that could justify resistance to established governments. On that level he wanted only to defend the real rights granted to English people by their “ancient law of freedom.” His purpose was to show how the laws of England that he cherished could be defended within a framework of natural law jurisprudence but without any appeal to various ideas of the time that he found unacceptable—that the laws were of immemorial antiquity, or that they derived their authority from pure reason or as exemplifications of principles of natural law. For Selden a major function of natural law (permissive natural law) was to leave the English Parliament free to legislate as it saw fit for the English people. One of Selden’s early works had the odd title Jani Anglorum facies altera, “The Other Face of the English Janus.” Selden’s Janus here was the law of the English constitution and his book was an erudite exploration of its early history. But natural law also had another face. It was permissive as well as preceptive. More than any of his contemporaries Selden revealed this other face of natural law.

13

Samuel Pufendorf

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) and On 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, defended an Erastian theory of church governance. Pufendorf held that the state 1. For an introduction to Pufendorf see L. Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law (Chicago: University of Chicago Press, 1965) and A. Dufour, “Pufendorf,” in The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991), 561–88. A detailed bibliography on Pufendorf’s life and works is included in D. Döring, Beiträge zur Biographie Samuel von Pufendorf’s und zu seiner Entwicklung als Historiker und theologischen Schriftsteller (Berlin: Dunker und Humbolt,1992). Later studies include K. Saastamoinen, The Morality of Fallen Man: Samuel Pufendorf on Natural Law (Helsinki: Societas Historicae Finlandiae, 1995), K. Haakonssen, Grotius, Pufendorf and Modern Natural Law (Ashgate: Dartmouth, 1996); T. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, Cambridge University Press, 2000). 2. Samuel Pufendorf, De jure naturae et gentium libri octo, edited by J. B. Scott, 2 vols. (Oxford: Clarendon Press, 1934); vol. 1, The Photographic Reproduction of the Edition of 1688; vol. 2, A Translation of the Text by C. H. and W. A Oldfather.

 

273

274  For and Against should control all the public external manifestations of religious life, but he acknowledged that its power did not extend to the inner moral life or religious beliefs of individual persons. Pufendorf knew the works of Selden and addressed some of the same problems but he presented a different vision of natural law and permission. He shared with Selden a strongly voluntarist theory of law, but he chose to exclude from his work the idea of permissive natural law that was central to Selden’s argument. In considering his work, therefore, our task is not the usual one of exploring the ways in which the notion of permissive natural law was deployed in particular historical contexts; it is rather to explain how Pufendorf could address some of the same problems as Selden without ever relying on this concept. Pufendorf set out to construct a science of morals, a body of certain knowledge, distinct from the physical sciences of the time—he was living in the age of Newton—but that, like them, was formulated in laws that could be discerned by reason reflecting on “the nature of things.” His purpose was to present a system of jurisprudence and ethics grounded on reason and without any appeal to a confessional theology that relied on the revealed truths of scripture, an ambition that seemed misguided to the conservative Lutheran theologians of the time. Accordingly, at the outset of his work, he distinguished between “natural entities” and “moral entities.” Natural entities were substances with their own intrinsic natural properties, typically moved by impersonal natural laws or blind instinct, without any volition of their own. On a physical level humans too were natural entities, but they were also endowed with reason through which they could conduct their lives according to moral laws.3 These moral norms were not intrinsic to physical beings as such; they had to be imposed from outside by an intelligent agent, and ultimately 3. De jure naturae et gentium libri octo, 1.1.2–4,2–3. Henceforth cited as De jure. I have given the book, chapter and paragraph numbers followed by the page numbers of the Latin text. Pufendorf’s doctrine of moral entities has sometimes been seen as an anticipation of Kant’s conception of autonomy. For a critical assessment of this view see K. Saastamoinen, “Liberty and Natural Rights in Pufendorf’s Natural Law Theory,” in Transformations in Medieval and Early-Modern Rights Discourse, edited by V. Mäkinen and P. Korkman (Dordrecht: Springer, 2006), 225–56.

Samuel Pufendorf  275 by God.4 The basic moral entities were power, right, and obligation, where power meant a lawful ability to act with moral effect. The effect of power over others was to lay an obligation on them or authorize their actions or not hinder them. Power over oneself was liberty; power over possessions was ownership.5 The term “right” (jus) could mean the same as law or it could refer to a moral quality by which one could command others or could own something or claim it. The definitions were probably derived from Grotius, but the doctrine of imposition was added by Pufendorf and would be important in the subsequent development of his argument.

The Nature of Natural Law We can best understand Pufendorf’s attitude to permissive natural law by following his own course of argument and considering first law in general, then human nature, and finally natural law. He defined law thus: “In general law (lex) can most appropriately be defined as . . . a decree by which a superior obliges a subject to conform his actions to what the law commands.”6 Thus, from the outset, Pufendorf, like Suarez and Grotius but unlike Selden, made obligation an essential part of his definition of law. He wrote that a law ought to be supported by sound reasons but that its obligatory force did not come from such reasons; it came rather from the will and power of a legislator.7 Pufendorf quoted Hobbes approvingly here, and he went on to distinguish in the manner of Hobbes between jus (right) and lex (law) Pufendorf wrote that right implied freedom while law was a restraint on our natural liberty.8 In Pufendorf’s teaching, law did not only oblige subjects to some 4. De jure, 1.1.3, 3, “Quorum primum autorem merito DEUM O.M. dixeris.” 5. Ibid., 1.1.19, 12–13 6. Ibid., 1.6.4,61, ‘In genere autem lex commodissime videtur definiri per decretum, quo superior sibi subjectum obligat, ut ad istius prascriptum actiones suas componat.” 7. Ibid., 1.6.1,60. 8. Ibid., 1.6.3,61. Pufendorf also noted here, like Suarez and Grotius, that the word jus was ambiguous. It could mean the same as lex (law) or it could mean a right, “a power of doing something conceded or left by the law.”

276  For and Against way of acting; it also determined the moral value of their acts. “We call an act morally good that is in accord with law and an act evil that is against the law.”9 He explained further that “we understand law to necessitate not merely permit,” and that, to serve as a guide to moral conduct, a human law must be consistent with divine law.10 Pufendorf held, then, that law determined the moral quality of human acts and imposed obligations; but he added some further considerations that complicated his argument. He agreed with Hobbes that a lawgiver must have coercive power to enforce his commands and that law must always include a penal sanction, a threat of punishment for an offender. But he denied that coercive force alone could create law. The obligation that law imposed was a moral quality, and to act merely out of a fear of punishment was not to act from a sense of moral obligation. Pufendorf held that to be obliged a subject must recognize, not only that his disobedience would incur a penalty, but also that he would justly suffer the threatened punishment.11 He maintained, therefore, that true law must proceed both from the will of a legislator and from a just cause.12 This doctrine evoked a tart response from Leibnitz, who was unsympathetic to the whole idea that justice and injustice were created by the command of a sovereign. He maintained that Pufendorf was arguing in a circle when he asserted that justice was something imposed by law and at the same time a necessary attribute of the law that imposed it. Leibniz also argued that to present justice and goodness as being simply what God chose to ordain was to treat God as an arbitrary tyrant.13 Pufendorf might have replied that the will of God 9. Ibid., 1.7.3,79. “Actionem bonam moraliter . . . dicimus quae cum lege congruit, malam quae ab eadem discrepat.” 10. Ibid. Later he wrote that civil law could no more make an evil act good than it could make poison wholesome. See 8.1.5, 777. 11. Ibid., 1.6.5, 63. 12. Ibid., 1.6.9, 65. 13. The criticism of Leibniz and a response of Barbeyrac are conveniently available in translation in I. Hunter and D. Saunders, eds., Samuel Pufendorf: The Whole Duty of Man, According to the Law of Nature (Indianapolis; Liberty Fund, 2003), 267– 305. For discussions of the debate see J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998), 250–59; P. Korkman, “Voluntarism and Moral Obligation: Barbeyrac’s De-

Samuel Pufendorf  277 was intrinsically just; but he rejected the idea of an eternal moral law existing with God from all eternity because he saw this doctrine as implying some kind of permanent principle that necessitated God’s actions. In fact God created man (and all else) out of his own pure free will; his actions were always just but not necessitated.14 When Pufendorf turned to the nature of the humans that God had chosen to create, he maintained that, even in a primordial condition, they were endowed with a faculty of reason that could discern principles of natural law which they were bound to obey and which would guide them to a more commodious way of life. He held that these principles could be established by sound reason reflecting on the nature of things, especially “the nature, condition, and inclinations” of humans themselves.15 Like Hobbes, Pufendorf held that a primary characteristic of humans was self-love, accompanied by a powerful desire for self-preservation. But, here following Grotius, Pufendorf also held that humans had sociable instincts, that they were inclined to help one another, and were naturally friendly to others of their own kind.16 They were capable of working together for the common good; but they were also often malicious, petulant, and easily angered.17 The result of all this was not, as Hobbes would have it, a constant state of war of all against all, but an uneasy peace disturbed by frequent quarrels.18 Reflecting on their own condition, humans could see that individually they were weak and in need of the help and support of others and that, therefore, they could survive and live comfortably together only if they behaved to one another in a sociable fashion. And from fence of Pufendorf Revisited,” in T. J. Hochstrasser and P. Schröder, eds. Early Modern Natural Law Theories (Dordrecht: Kluwer Academic Publishers, 2003), 195–226. 14. De jure, 1.2.6, 18–19. 15. Ibid., 2.2.9, 118; 2.3.11,120; 2.3.14.141. 16. Ibid., 2.3.14, 141; 2.3.16,145. Pufendorf showed considerable ingenuity in distancing himself from Hobbes while at the same time borrowing from him. He introduced his dissents from the English author for the most part only in the second edition of the De jure in response to criticisms asserting that he himself was a follower of Hobbes. On this see F. Palladini, Samuel Pufendorf, discepolo di Hobbes. Per una reinterpretazione del giusnaturalismo moderno (Bologna: Il Mulino, 1990). 17. Ibid., 2.3.15, 142. 18. Ibid., 2.2.12, 121.

278  For and Against this, Pufendorf argued, it was easy to establish the ground of natural law. The fundamental law of nature shall be this, that each one, so far as in him lies, shall cultivate and preserve a sociable attitude toward others . . .bound to the other by kindness, peace, and love, and therefore by mutual obligation.19

Furthermore, since everything that obligated a man to an end obliged him also to use the necessary means, all the rules of conduct that could be deduced from this fundamental natural law were also obligatory. As usual, Pufendorf emphasized command and obligation here, but so far his argument had established only the existence of a natural law based on utility, on a rational calculation of the behavior likely to be most advantageous for humans. However, Pufendorf intended to present a deontic theory of law, not a merely consequentialist one. To complete his argument, therefore, he had to show that natural law was derived from a command of God that imposed an obligation on humans and that the existence and content of such a command could be established by natural reason reflecting on the human condition. Grotius had argued that reason could discern between an act that was good and one that was evil and that therefore we could know that God commanded the one and forbade the other. But Pufendorf rejected this argument. He was more of a voluntarist that Grotius; in his view it was wrong to suggest that God was in some way obliged to will something because it was good; it was better to say that an act was good because God willed it.20 Pufendorf’s own argument ran like this. God had created humans with a nature such that they could survive and flourish only if they lived sociably together. He had also endowed 19. Ibid., 2.3.15,143, “Inde fundamentalis lex naturae isthaec erit: cuilibet homini, quantum in se, colendam et conservandam esse pacificam adversos alios socialitatem.” Pufendorf was following Grotius in deriving natural law from human sociability but he used the term in a stronger sense. For Pufendorf, being sociable meant, not only avoiding harm to others, but also acting with positive benevolence toward them. See 2.2.9,118. Men should “voluntarily promote the interests and happiness of others.” 20. Ibid. 2.3.4, 125.

Samuel Pufendorf  279 them with a faculty of reason through which they could discern that, to maintain this way of life, they had to observe certain laws of behavior. In creating humans with a sociable nature God had evidently willed that they should actually live sociably together and that, therefore, they should obey the laws necessary to attain that end. Since the end cannot be attained without observing natural law, it is understood that the Creator has obliged man to observe the law, not as a means discerned by the judgment of humans and changeable as they wish but established by the Creator himself for the attainment of the end.21

Permissive Natural Law? A doctrine of permissive natural law would evidently not fit very comfortably into Pufendorf’s structure of thought with its emphasis on command and obligation. This was apparent in his most direct engagement with the theme of permissive law, presented in the course of his initial treatment of law in general. There Pufendorf, closely following Grotius, stated his own position in a few words. “Because the power to obligate is attributed to laws, permission is understood to be excluded from law properly so called.”22 But then he at once added an objection to this position based on a familiar text of Roman law, “though Modestinus states in the Digest that the function of law is to command, to forbid, to permit, to punish.”23 The two positions are directly opposed to one another and Pufendorf never attempted to reconcile them, perhaps had no wish to do so. He continued with an argument of Suarez that he probably took directly from Grotius. For permission is not properly an act of law but the absence of an act. Whatever things the law permits it neither commands nor forbids, and therefore it really does nothing at all concerning them.24 21. Ibid., 2.3.20, 150. For a similar argument in Suarez see above, 196. Immediately before this at 2.3.19, 148 Pufendorf rejected the “impious hypothesis” of Grotius. 22. Ibid., 1.6.15,75, “Eo ipso autem dum legibus tribuitur vis obligandi, ex numero legum proprie dictarum permissiones exclusae intelliguntur.” 23. Ibid., “Utut Modestinus Dig. l.7 De LL tradat, legis virtus haec est, imperare, vetare, permittere, punire.” 24. Ibid., “Nam permissio proprie non est actus legis, sed actionis negatio.

280  For and Against Pufendorf followed this with another argument of Grotius (again originally from Suarez). According to some authors, he wrote, a permission might imply a kind of obligation, not an obligation of the beneficiary but of others who were required not to impede the exercise of the permission. Pufendorf did not explore this doctrine any further and he did not embrace it as his own, but he added an example that can help us to understand further his attitude to permissive law. He noted that even the authors he had just referred to applied their argument only to a full and perfect permission, not to acts that the law merely ignored and tolerated. In such cases the law did not confer any permission. For instance, although the civil law did not punish a man who killed a wife taken in adultery, it did not forbid others from doing all in their power to prevent the killing. The law was merely neutral; it did nothing. It did not restrain the husband from killing his wife and it did not restrain others from intervening. The point Pufendorf wanted to make was that their right to intervene did not require any permissive law to justify it. If we want to speak accurately, he wrote, it came from their own proper liberty.25 In similar fashion, Pufendorf argued that, when a law prohibiting some conduct was repealed, there was no need for a new permissive law to authorize the relevant conduct. Where the law did not impose some restraint all were free to act as they chose. And for Pufendorf this argument rendered the notion of a permissive law unnecessary. “For the law to permit expressly anything for which we have sufficient permission because it is not prohibited . . . seems little better than superfluous.”26 In the writings of Pufendorf, an assumption of original freedom was sufficient to explain the behavior that others ascribed to permissive natural law. He acknowledged freely that there was a large area of conduct where no law—positive or natural—commanded or prohibited a particular course of action, where Quae lex permittit illa neque praecipit, neque vetat; adeoque circa eadem nihil agit.” 25. Ibid., “Enimvero si accurate velimus loqui, neque iste effectus proprie ex permissione legis resultat, sed ex propria cujusque libertate.” 26. Ibid., “Sic ut expresse in legibus aliqua permittere quorum licentia ex absentia interdicti satis colligitur . . . supervacuum fere videatur.”

Samuel Pufendorf  281 humans were free to act as they chose; but he was reluctant to call this freedom a realm of permissive law. At one point he explained this further by dividing all human acts into those that were necessary and those that were nonnecessary. The necessary acts were commanded by law. The nonnecessary acts included ones that were prohibited of course, but also, “a licit act that the law neither commands nor forbids, which anyone can commit or omit according to his own judgment.”27 Pufendorf saw no difficulty in discussing permitted acts; what he did not acknowledge was the need for a permissive law to authorize such acts. The author referred several times to acts that were merely indifferent, the adiaphora that had often served as a starting point for doctrines of permissive natural law in earlier writings. He mentioned, for instance, acts that were “licit and indifferent, valued according to their utility.”28 Elsewhere he quoted a text of Grotius asserting that “between what it is right to do and what it is wrong to do there is a mean which is what is permitted.”29 But, for Pufendorf, permission indicated only an absence of command or prohibition. His treatment of indifferent acts did not lead to a doctrine of permissive natural law; it served rather to reinforce his doctrine that the morality of human acts was determined by their conformity with law. Without law, he wrote, all acts would be morally indifferent just as the acts of beasts, that would be immoral in humans, were indifferent because there was no moral law to regulate them.30 In similar fashion human acts were indifferent when they were not commanded or forbidden by law. Such acts were not regarded as indifferent because they were allowed by some permissive natural law; it was rather that they lay outside the law, so then the law was not violated whether they were committed or omitted.31 27. Ibid., 1.7.2, 78. 28. Ibid., 1.2.8, 23. “actiones in se licitas et indifferentes utilitas metitur.” 29. Ibid. 1.2.9, 24. Pufendorf accepted this but he emphasized that acts which were “indifferent and permitted” did not form a mean between command and prohibition in the sense that they shared something of the nature of both extremes like lukewarm water that was partly hot and partly cold. Rather they excluded both; they formed a “mean of negation.” 30. Ibid., 1.2.6, 19. 31. Ibid., 1.3.14, 34.

282  For and Against Pufendorf could not simply ignore the fact the legislation of civil law did include some permissive laws; any skilled civil lawyer could have given him a list of them. And Pufendorf himself gave two examples of conduct that was often legally permitted but with some restriction. The laws of most countries permitted the practice of usury but imposed a limit on the rate of interest that could be charged; and prostitution was sometimes allowed on payment of a tax or fine.32 However, such laws could be regarded as consistent with Pufendorf’s original definition of law in that they did impose an obligation on those affected. Pufendorf referred to permission and law in several other scattered contexts. He referred to innocent self-defense as permitted and sinless, but without calling this specifically a permission of law as in the standard Roman law text.33 In another argument, criticizing the view that the content of natural law could be gathered from the customs of various nations, he observed that such customs might show what was permitted rather than what natural law commanded.34 In yet another comment he noted that, when two prohibitions of law conflicted so that both could not be obeyed, the less important one “is supposed to be permitted.” But he added that the argument did not apply to moral evils.35 These are scattered comments that do not add up to a doctrine. I think Pufendorf’s underlying conviction was that the whole notion of permissive law was incoherent. It conflicted with his basic teaching that the essential function of law was to impose obligation. He had to occasionally acknowledge that the civil law included some permissions—the Digest plainly stated this—but he would not allow these exceptions to shape his general theory of law, and especially he would not extend them to the realm of natural law, the central theme of his whole book, by incorporating a permissive law of nature into the structure of his argument. 32. 1.6.15, 75. 33. Ibid., 2.5.1, 182. See Dig. 9.2.46.4, “Vim vi defendere omnes leges omnia iura permittunt.” 34. Ibid., 2.3.22, 155. 35. Ibid., 5.12.23, 560.

Samuel Pufendorf  283

Permission, Property, and Government Pufendorf’s reluctance to accept the idea of a permissive natural law was evident in his treatment of two problems that had often led to discussions of the idea in earlier writings—problems concerning the origins of private property and of coercive government. For centuries it was widely held that, in accordance with a natural law that prevailed in a primordial state of nature, all things were common and all humans were free; private property and institutions of government were eventually brought into existence through compacts entered into by humans. To explain how such compacts could be made without violating the original law of nature, it was argued, at least from the twelfth century onward, that the natural law involved here was merely a permissive law. It allowed humans to own property individually or in common, to live free or submit to coercive government (or even sell themselves into servitude). Pufendorf presented a similar structure of thought in which humans emerged from a state of nature through a series of compacts. But he carried through the whole argument without ever appealing to a permissive law of nature. Pufendorf thought that in very early times there must have been at least a tacit agreement that a person could keep as his own what he took for his own immediate use and consumption. Otherwise, he argued, the fruits of the earth would have been of no use to anyone.36 Subsequent compacts extended individual ownership to household goods and, finally, to fields and pasturelands. Pufendorf also envisaged a tacit compact providing that property left undivided should pass into the ownership of the first occupant.37 The principal difficulty that Pufendorf saw in explaining the origin of private property arose from his original distinction between physical and moral entities. The key point here was that ownership implied a right to exclude others from the relevant goods. The right could not be acquired by mere corporeal possession because it was a 36. Ibid., 4.4.5, 366. See 4.4.13, 378, “An oak tree belonged to no one, the acorns to whoever gathered them.” 37. Ibid., 4.4.6, 367.

284  For and Against moral entity. It laid an obligation on others; it did not inhere in the intrinsic nature of material things; it had to be imposed. Pufendorf concluded that, since the moral quality was not imposed by any direct command of God, it must have been derived from the compacts made by humans.38 To explain how such pacts could originate Pufendorf wrote that, in the beginning, God conceded to humankind all the earth and its produce for their use and sustenance, and according to Pufendorf those first humans did not live in a “positive community,” owning the things of the earth in common, but in a “negative community,” where all of the separate individuals were free to take whatever each wanted for his own use.39 However, this primeval way of life was not enjoined by any law of nature. No natural law commanded that the original state of things should endure forever.40 But at the same time no natural law commanded that individual ownership be introduced. Pufendorf might seem to have presented a primordial condition that was characterized, not by a permissive natural law, but by a vacuum of law. From the beginning, however, there existed the fundamental law of nature that required humans to live peaceably and sociably together; and right reason could show that the institution of individual possessions was conducive to that end. Accordingly, [S]ince the foundation of natural law is social life . . . and a peaceful and decorous society cannot exist without separate properties . . . they were introduced rightly and in accordance with the goal of natural law.41

But although private property was introduced in accordance with natural law, Pufendorf insisted that the original institution must have been made by means of the voluntary compacts entered into by humans because such compacts were necessary to give a moral quality to the physical act of taking possession of something.42 Own38. Ibid., 4.4.9, 372. 39. Ibid., 4.4.5, 366. 40. Ibid., 4.4.13, 378. 41. Ibid., 4.4.14, 379. 42. Ibid., 4.4.9, 372, “ut produceret effectum moralem i.e. obligationem apud alios abs re per alterum adprehenda abstinendi, pactum antecedere debebat.” On Pufendorf’s teaching on property see S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991), 53–124.

Samuel Pufendorf  285 ership of property, therefore, presupposed, not a permissive natural law, but “an act of man and a compact, tacit or express” that recognized the right of a first occupant. Pufendorf had to defend his doctrine on several fronts—for instance, against those who held that God himself had instituted individual ownership in the person of Adam and those who held that God had conferred a communal ownership on the whole human race along with a permissive natural law that allowed them to divide up the common property. Pufendorf devoted considerable space to the first argument that private property originated in God’s grant to Adam. This theme had been elaborately discussed in the medieval disputes concerning Franciscan poverty; it was still a matter of debate among seventeenth-century theologians, and it was given a new prominence in the writings of Robert Filmer. Curiously, some of the detailed arguments that Pufendorf presented on this topic echoed almost word for word those used by Ockham in the earlier controversy.43 In defending his own argument Pufendorf had to consider the criticism that he had introduced a new law of nature that was derived wholly from human actions. He responded by distinguishing between “absolute commands” and “hypothetical commands” of natural law. The former obligated all people at all times; the latter came into effect only after some action of humans.44 Thus, no natural law commanded humans to institute individual ownership but, once they had done so, a natural law forbade them to take another’s 43. Pufendorf expressed a lofty disdain for the writings of the early scholastics. Presumably he did not know that he sometimes repeated their ideas. See Tierney, Idea of Natural Rights, 168. Pufendorf could almost have been quoting Ockham when he wrote, “the right of Adam to things was different from that dominion that is now established among men,” or “brute creatures use and consume things . . . although no dominion is recognized among them,” or “the fact that right reason suggested the introduction of separate dominions does not prevent them from going back to a human pact,” or “the power to acquire some right and the right itself are different things.” The fourteenth-century dispute was discussed by De Soto and Suarez and mentioned by Grotius. See J. Kilcullen, “The Origin of Property: Ockham, Grotius, Pufendorf, and Some Others,” in J. Kilcullen and J. Scott, A Translation of Ockham’s Work of Ninety Days (Lewiston, N.Y.: Edwin Mellen Press, 2001), vol. 2, 883–932 44. De jure, 2.3.24, 158.

286  For and Against property. This was a traditional argument. Pufendorf was referring to a kind of law that Ockham had called “suppositious natural law” and that Suarez and Grotius had also discussed. Pufendorf’s teaching that individual ownership had originated in voluntary compacts among humans had also been widely accepted among his predecessors. A more unusual aspect of his work was his rejection of the idea of permissive natural law that had been invoked by earlier authors, most recently by Selden, in their accounts of the origin of private property. We can finally consider two characteristic features of Pufendorf’s argument that may help us to understand how he could elide the idea in presenting his own account while still arguing that private property was instituted in accordance with natural law. One feature was the distinction between “positive and “negative” community that we have already mentioned. The other was a distinction between two meanings of the term “natural” as referring either to a primordial condition of humankind or to a mature, developed society. Pufendorf emphasized the distinction between positive and negative community more than his predecessors; it was an important part of his argument.45 If God had conferred a communal ownership of the whole earth on humans, or indeed if he had instituted any other form of ownership, that could readily have been seen as a part of God’s plan for humanity, a divinely ordained natural law that was normative for the future. But, in Pufendorf’s negative community, God did not institute any kind of property. The right he conferred on humans was “indefinite, general, indifferent, unrestricted” and “things were not created either proper or common by any express command of God.”46 Instead, humans were created in a state of freedom where they could decide such matters according to their own judgment. This might seem an extremely permissive doctrine; but it was not a doctrine of permissive law. Humans did not offend against natural law if they instituted private property; but, as Pufendorf pointed out, neither did the backward peoples of his own day who still found it possible to live together while allowing most things 45. He chided Grotius for confusing the two conditions. (Ibid., 4.4.9,372.) 46. Ibid., 4.4.10, 373; 4.4.4,366.

Samuel Pufendorf  287 to be used in common.47 Given that situation, Pufendorf saw no need for a permissive natural law to explain how people were free to emerge from their primeval condition. It was just that God had chosen to create humans with a power of free choice. Pufendorf’s distinction between two meanings of “natural” came in his discussion of Hobbes’s portrayal of the state of nature as a miserable condition where men engaged incessantly in a war of all against all. Pufendorf did not complain that Hobbes had painted too grim a picture. He too envisaged a world of humans stripped of all the attributes of civilized life and agreed that their existence would indeed be poor and miserable.48 But Pufendorf denied that this was a state natural to man; he insisted rather that nature never intended humans to live that way.49 For Pufendorf, what was natural to humans was rationality and sociability. From the beginning they were endowed with reason, and reason could show them how to live peacefully together.50 It was wrong, therefore, to oppose a state of nature to a social condition; the argument of Hobbes involved an equivocation in referring to what was natural.51 Pufendorf expressed his own position in some pithy phrases. To say that only a primordial, savage society was natural to man was like saying that because infants were not endowed with the power of speech, it was unnatural for them later to learn to talk, or that, because babies were born tiny, it was unnatural for them later to grow up.52 This again may help to explain why Pufendorf saw no need to introduce the idea of a special permissive law to justify the introduction of an orderly, property-owning society. For him the final state of affairs was just as natural as the original one—or more so. When we turn to Pufendorf’s treatment of the origin of government we encounter a very similar structure of argument. Once more the author asserted that, although we can envisage a state of nature “abstracting from all human institutions,” still nature did not intend humans to remain in that condition. And, here again, he deployed the distinction between two meanings of “natural” as referring either to the primordial or to the fully developed state of human soci47. Ibid., 4.4.13, 378. 49. Ibid., 2.2.4,112. 51. Ibid., 2.3.16,144.

48. Ibid., 2.2.2,105–106. 50. Ibid., 2.2.3,108; 2.2.3,110. 52. Ibid.

288  For and Against ety, this time providing another version of his favorite analogy. It did not follow that, because humans were born in a state of ignorance, it was repugnant to nature for them later to acquire knowledge. And so, he concluded, “Government is indeed natural, that is, it was the intention of nature that humans should establish governments for themselves.”53 This left open the question of how governments were actually brought into existence. Pufendorf explained this further in a later discussion where he quoted the words of Aristotle, “Man is by nature a political animal.” This did not mean, he explained, that government was natural to man in the same way that it is natural for a fish to swim or a bird to fly, behavior that required no antecedent act by the creatures concerned. Government was natural to humans considered as persons endowed with reason, but the actual formation of a government required deliberate human actions.54 Pufendorf illustrated this with another analogy. It was natural for seeds to grow into trees but a ship made out of the wood of trees was not natural in the same way; it required the skilled labor of the artificers who shaped it. Pufendorf went on to explain that, just as with the origin of property, a government was established through a series of compacts. In the first compact a multitude of individuals, all free and equal, agreed, each with all the others, to unite themselves into a single body within which a majority could take decisions on behalf of the whole. Once such a civil community had been established a decree was necessary determining the form of government to be instituted. Then a final compact conferred authority on the ruler or rulers.55 Pufendorf recognized monarchy, aristocracy, or democracy as legitimate forms of government but made plain his own preference for a strong monarchy. His account of the formation of government by two succes53. Ibid., 2.2.4, 112, “Naturale est equidem imperium, i.e. naturae intentio fuit, ut homines imperia inter se constituerunt.” 54. Ibid., 7.2.3, 649; 7.2.5, 652. The idea was an ancient one, repeated by Giles of Rome in a widely read work of the thirteenth century. See his De regimine principum (Rome: Antonius Bladus, 1556), 1.3.3, 240, “(The state) is not natural in the sense that it is natural for a stone to fall or fire to burn.”; 2.2.32, 320, “it is not brought into existence and perfected without the work and industry of men . . . by human artifice.” 55. Ibid., 7.2.6–8,665.

Samuel Pufendorf  289 sive contracts resembles that of Suarez and also that of Locke which was presented a little later, but he was less sympathetic than either of them to theories favoring popular resistance to an established sovereign. Pufendorf did, however, maintain against Hobbes that the compact instituting a ruler was not just a unilateral transfer of power but a real contract in which the ruler promised to protect the common peace and security and the subjects undertook to faithfully obey their sovereign. And he conceded an ultimate right of self-defense against a direct attack of a tyrant. Pufendorf’s argument left one final problem that had also concerned Selden. His whole theory concerning the origin of property and of government rested on the assumption that persons were obliged to keep a contract that they had voluntarily entered into. But those persons contracted as equals, and Pufendorf had earlier maintained that obligation must be imposed by the command of a superior. Reason might show humans that it was fitting for them to perform whatever they had covenanted for, but such a dictate of reason would have no power to impose obligation unless it were reinforced by a lawful command. A command of positive human law would not suffice since it would derive its authority from a previous contract of government, and the obligatory force of a contract was precisely what had to be established. The solution was implicit in Pufendorf’s original treatment of natural law. Reason can perceive rules of natural law that are conducive to human survival and flourishing, but those rules oblige only because reason also shows us that the observance of them is commanded by God. And, specifically, contracts derived their obligatory force from a command of the law of nature that was also a divine command. Pufendorf often quoted the work of Selden with approval and the doctrines of the two had much in common. Both favored a voluntarist theory of law and both emphasized the importance of contracts grounded on a divinely ordained law of nature. Pufendorf wrote at one point that the origin of property “lay concealed in the general precept about keeping our compacts.”56 The words could have come 56. Ibid., 4.4.14, 379, “Ante id tempus virtualiter quasi delituit in generali illo pracepto de servandis pactis.”

290  For and Against from Selden, and yet they represented only a part of his teaching, a part that Pufendorf chose to exclude from his own work. Selden held that two kinds of natural law were necessary for the establishment of a valid contract, a permissive natural law that allowed us to make the contract in the first place and a preceptive natural law that commanded us to keep faith, to fulfill the contract we had made. Pufendorf saw only the need for a preceptive law. Perhaps the difference between the two just reflects a mindset of Pufendorf that was inclined to emphasize orderly government more than the rights of subjects. Selden favored orderly government too of course, but in the crisis of 1641 he chose to side with the parliamentary opposition to Charles I; Pufendorf, envisaging a similar situation, warned against “turbulent and quarrelsome citizens . . . seeking the overthrow of the state.”57 Both authors recognized that natural law left a range of activities open to human free choice but Selden wrote of a permissive natural law, Pufendorf of a mere absence of law. It might seem a trivial point, but later critics of Pufendorf’s position saw that two different concepts of law were involved. According to one view, the single essential purpose of natural law was to impose obligation; according to the other, another essential purpose of the law was to define a realm of human freedom. 57. Ibid., 7.8.3,756. It does not necessarily follow from Pufendorf’s emphasis on the obligation of subjects that he regarded duties as primary and rights as merely derivative from duties. This has been both asserted and disputed. For discussions see T. Mautner, “Pufendorf and the Correlativity Theory of Rights,” in In So Many Words: Philosophic Essays Dedicated to Sven Danielsson, edited by S. Lindström and W. Rabinowiz (Uppsala; Philosophical Society, 1998), 37–60 and Saastamoinen, “Liberty and Natural Rights.”

14

Critics of Pufendorf: Barbeyrac and Burlamaqui

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 and at the age of twenty-five was named as professor of natural law at the Academy of Geneva. Both authors admired Pufendorf but both vigorously reasserted the view that there was indeed a permissive natural law and that consideration of it was essential in any comprehensive treatment of law in general and any understanding of natural rights.

 

291

292  For and Against

Jean-Jacque Barbeyrac Barbeyrac published translations into French of the major works of Grotius and Pufendorf, adding to them copious notes of his own.1 The notes often extended an argument of the author he was commenting on or provided additional authorities for it, but sometimes they expressed a contrary opinion as in the present case.2 Like many other thinkers of his age Barbeyrac held that, before the institution of coercive government and human positive laws, people lived in a state of natural freedom, limited only by a few rules of natural law; in the words of Locke it was a state of liberty but not of license. The interesting point for us is that Barbeyrac, like Selden but unlike Pufendorf, maintained that this original liberty was just as much an expression of natural law as the rules that limited freedom. Indeed, for Barbeyrac, a significant function of obligatory law was to define the realm of freedom that permissive law authorized. And this understanding helped to shape the theory of natural rights that he would develop. In the commentary on Pufendorf, Barbeyrac presented his criticisms in a series of scattered notes but his principal detailed dissent from Pufendorf’s position came at the point where the earlier author directly rejected the notion of permissive law. Where Pufendorf wrote that, since law was obligatory it could not include the idea of permission, Barbeyrac responded, This is not always true . . . the general notion of law . . . includes, not only an obligation to do or not do certain things, but also a liberty to do or not 1. Barbeyrac’s notes are printed in an English translation in Hugo Grotius, The Rights of War and Peace, translated by J. Morice, edited by R Tuck (Indianapolis: Liberty Fund, 2005) and in Samuel Pufendorf, Of the Law of Nature and Nations, translated by B. Kennet (London: R. Sare, 1717). I have used these translations with minor emendations in subsequent quotations. The works are cited as Tuck, Grotius and Kennet, Pufendorf. 2. Recent studies on Barbeyrac include T. J. Hochstrasser, “Conscience and Reason: The Natural Law Theory of Jean Barbeyrac,” in Grotius, Pufendorf and Modern Natural Law, edited by K. Haakonssen (Dartmouth, U.K.: Ashgate, 1999), D. Saunders, “The Natural Jurisprudence of Jean Barbeyrac: Translation as an Art of Political Adjustment,” Eighteenth-Century Studies 36 (2003): 473–90. See also P. Korkman, “Voluntarism and Moral Obligation” and “Life, Liberty and the Pursuit of Happiness,” in Mäkinen and Korkman, Transformations, 257–82.

Critics of Pufendorf  293 do others. So that liberty imports always a concession, either express or tacit, which is a positive thing.3

Thus the freedom to act in certain ways was itself a provision of law, express or tacit. Barbeyrac added that right and obligation were correlative terms, meaning here that we have a right to act wherever the law does not oblige us in some way.4 And so, he asked, “Why may we not allow a law of mere permission as well as a law obligatory?” He went on with arguments taken directly from Selden whom he cited here. If one kind of law was necessary to impose obligation on us, another kind was equally necessary to establish the state of freedom on which the obligatory law supervened. A boundary line separating my land from another’s shows what is his as well as what is mine; so too an obligatory law shows both what is commanded and what is permitted. So the obligatory law . . . being once settled . . . there necessarily follows a law of mere permission which has for its object all other actions about which the lawgiver has determined nothing authoritatively and consequently permits everyone to do or not to do as he pleases.5

Barbeyrac concluded these remarks with a reference to Grotius’s De jure belli. In his commentary on that work he presented his teaching on permissive natural law mainly in two long notes that together constitute a little treatise on the subject. In one of them he investigated the relationship between the permissions of natural law and those of positive human law; in the other he defended the idea of permissive law both as defining an area of conduct that could be regulated by positive law and as a source of individual rights. In the first comment he was taking up an issue like the one considered by the old canonist Johannes Andreae centuries earlier— how something considered intrinsically evil could be treated in different systems of law.6 Barbeyrac gave some of the same answers 3. Kennet, Pufendorf, 1.6.15, 73. 4. Ibid., “Right and obligation are two relative notions which always go hand in hand.” 5. Ibid. (See Selden, De jure naturali, col. 110.) 6. Tuck, Grotius, 1.1.17, 176.

294  For and Against and some different ones. He agreed with the earlier view that a permission of civil law did not necessarily imply approval of the permitted action but could merely grant immunity from punishment. A legislator’s task was only to regulate the external acts of his subjects in such a way as to preserve public peace and safety; it was not to make the subjects virtuous. But divine permissions were different. God could not permit the least evil. God’s divine law might pass over some forms of evil conduct in silence but “all positive permissions from him are certain proofs of approbation.”7 Johannes Andreae would have agreed so far, but then Barbeyrac’s argument took a different turn. He maintained that usury (something the canonist had considered intrinsically evil) and also divorce and polygamy were all permitted in the law of the Old Testament and so could not be essentially evil or contrary to natural law.8 He was not arguing as his predecessors had often done that such things were lesser evils that were permitted to avoid greater ones, but rather that they were not in themselves intrinsically evil at all. They were therefore permitted by natural law though of course not commanded. They belonged to the class of things that could be regulated by human positive law (as had indeed happened). Barbeyrac noted, for instance, that usurious contracts were legally permitted “when reduced to lawful bounds”9 He developed this theme further in the other passage where he presented an extensive defense of the idea of permissive natural law. There he noted that there was an infinity of actions, indifferent in themselves, that were permitted by natural law only insofar as they had not been limited by the positive law of a legitimate superior.10 The passage as a whole was presented as a response to a text where Grotius, closely following Suarez, wrote that permission was “not properly an act of law but mere inaction.” Barbeyrac replied, “I cannot be of our author’s opinion in this point. Permission is as real an effect of the law . . . as the strongest and most indispensable obliga7. Ibid. 8. Ibid., 177, “Therefore lending on interest is not evil or unlawful in its own nature . . . neither divorces nor polygamy are essentially contrary to the law of nature.” 9. Ibid. 10. Ibid., 1.1.9,149.

Critics of Pufendorf  295 tion.”11 A superior had the right to direct all the acts of his subjects by commanding or prohibiting any of them, but no superior exercised his authority so extensively; in practice many things were left to the free choice of the subjects. And this was not “a mere inaction or negation of actions” but a real positive act by which a legislator limited his own right. Permissive law directed the acts of subjects in its own way in that it either granted to them a power of acting freely in some matter or it confirmed, and left them in possession of, the natural freedom that the law could have curtailed. Express permission for every act was not necessary. “The silence of the legislator sufficiently infers a positive permission of whatever is neither enjoined nor prohibited.”12 The argument applied to divine law “natural or revealed” as well as to human laws. God had the power to control all the acts of humans; so when, for instance, he chose to deny only certain kinds of foods to the Jews he could have extended the prohibition to many other kinds. And by not doing so he really and positively permitted them to eat or not eat whatever was not prohibited. In the same way when human laws referred to things left indifferent by natural law they could either impose restraints on them or permit them. And here again, in the act of imposing limits, the legislator defined how far his people were free to act as they chose, because [W]hoever fixes certain limits . . . does by that very action express how far he grants men liberty to go if it pleases them.13 So far Barbeyrac had argued that natural law permitted many indifferent things that human law could regulate. He next turned to natural law as a ground of individual rights. Suarez had carefully distinguished between absence of command as a mere “negation” of law and specific provisions of law that granted positive permissions; and he held that only the latter kind of permissions could give rise to rights 11. Ibid., 1.1.9,148. 12. Ibid. 13. Ibid., 149. A little further on, dissenting from the view of Grotius that natural law, properly speaking, did not apply to indifferent acts, Barbeyrac wrote that “there is a natural law of bare permission as well as one which is obligatory; and thus the things which the author means may very well be considered as belonging to natural law in the former acceptation of the term” (1.1.10, 153).

296  For and Against that others were bound to respect. Barbeyrac’s position was more radical. He maintained that the silence of the law itself expressed the will of a legislator and so granted a real positive permission. And such a permission of law, he held, imposed an obligation on others not to interfere with the exercise of the permission.14 Finally, he explained, “Now this obligation arises . . . from a right inherent in him to whom the law gives a liberty of acting as he pleases.”15 By virtue of the permission we were also empowered to resist anyone who disturbed us in the exercise of the right either by appealing to a judge or, if that were not possible, by resorting to force. Barbeyrac noted here again that right and obligation were correlative, but he insisted that the right was primary. [W]e do not have a right to require something because another is obliged to do it but, on the contrary, he is obliged to do it because we have a right to require it.16

Barbeyrac’s position is evidently controversial and not in keeping with the body of current scholarship, which sees the rights defended by early modern theorists as essentially only authorizations to carry out the duties mandated by some law, so that the obligation was always primary and the right derivative.17 Some writers of the time did of course did defend that position; the work of Christian Wolff, to be considered later, provides an outstanding example. And Kari Saastamoinen, considering the work of Pufendorf, explained how his natural rights were derived from the obligations of natural law, either from our obligation to promote sociability or from the obligation of others to respect our right of self-governance.18 But for Bar14. Ibid., 149, “Permission which a law gives to anyone lays an obligation on others not to form any obstacle to his acting.” 15. Ibid. 16. Ibid. 17. This has been maintained, for instance, in the writings of Knud Haakonssen. See his Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 6, 41, 55, 311; “The Moral Conservatism of Natural Rights,” in Natural Law and Civil Sovereignty: Modern Right and State Authority in Early Modern Political Theory, edited by I. Hunter and D. Saunders (New York: Palgrave, 2002), 27–42, 38. See the further discussion of Korkman in “Liberty and the Pursuit of Happiness,” in Transformations, 257–82. 18. Saastamoinen, “Liberty and Natural Rights.”

Critics of Pufendorf  297 beyrac the natural rights were primary and the duties derivative. The difference between the two views reflects a difference in the understanding of the nature of law itself. The rights that Barbeyrac discussed here were indeed derived from law but from a permissive, nonobligatory law, a category of law that Pufendorf did not recognize. In Barbeyrac’s view, such rights were indeed a source of obligation (the obligation of others), not a consequence of it. Perhaps it was the concern for rights that led Barbeyrac to assert so persistently his teaching on permissive natural law. The treatment of rights also reflects the very strong influence of John Locke on his thought. Barbeyrac referred to Locke often and sometimes used his arguments to refute views of Pufendorf with which he disagreed. For instance, in considering the origin of private property, he rejected Pufendorf’s view about an original compact and gave a long paraphrase of Locke’s teaching on first occupancy and the natural right derived from one’s own labor. “It is our labour that distinguishes these fruits of the earth from other common goods and adds something more than . . . nature hath bestowed.”19 From the time of Locke onward, the view that private property was instituted by compacts among humans, taken for granted for centuries, became a matter of frequent debate. But the influence of Locke was above all evident in Barbeyrac’s defense of religious freedom, a matter that was of deep concern to him as a Huguenot refugee from persecution in France.20 Where Pufendorf wrote that the sovereign had the right to control and regulate religious doctrine, Barbeyrac responded with a long quotation from Locke’s Letter on Toleration in which the English author defended tolerance of religious differences as “agreeable to the gospel of Jesus Christ and to the genuine reason of mankind.”21 At another point Barbeyrac went beyond Locke in arguing that a people had a “natural and unques19. Kennet, Pufendorf, 4.4.4, 149. 20. Ibid., 8.1.6,8. Pufendorf was inclined to excuse, at least in some circumstances, agents who carried out unjust commands of a sovereign, but his comment evoked a bitter response from Barbeyrac. He wrote that, those who carried out the recent persecution in France should easily have seen “the tyrannical injustice and barbarous cruelty of the orders they received.” 21. Ibid., 7.4.10, 495.

298  For and Against tionable right” to defend their religion by taking up arms against a persecuting sovereign.22 Barbeyrac’s account of a natural right here seems different from the one he had given previously, and perhaps in conflict with it. Earlier, the author had noted that there were many cases where natural law granted rights that a sovereign could regulate or override. Here he was insisting on a natural right against the sovereign power itself, a right founded on the duty to obey one’s conscience. To understand his position as a whole we need to recognize that there were different kinds of rights involved in his discussion of religious liberty. A right to obey one’s conscience was not the same as a right to resist a persecutor by force of arms. To be true to one’s conscience, if it is considered as a right at all—Barbeyrac called it only an obligation— is no more than a right to fulfill a duty imposed by a higher law. It is not a right in the modern sense of a choice right. But a right of armed resistance is different. It is a matter of choice. There are other ways of preserving conscience inviolate, for instance by fleeing from the persecutor or even by accepting death at his hands—courses of action that Grotius and Pufendorf recommended. But Barbeyrac saw the right of a people to resist religious persecution as simply an example of the general right to resist unjust aggression, the same as the right “to defend their lives, their estates, and their liberties against the attempts of a tyrant.”23 This was the kind of right that Barbeyrac had traced to the natural freedom of humankind and the permissions of natural law. Perhaps the whole question of the relationship between permissive natural law and different kinds of rights in early modern thought deserves some further study.

Jean-Jacques Burlamaqui Burlamaqui, a younger contemporary and friend of Barbeyrac, helped to popularize the Huguenot’s views on permissive law by defending them in his own work, The Principles of Natural and Politic Law. This book presented a compendium of the views of Grotius 22. Ibid., 7.8.5, 549. 23. Ibid.

Critics of Pufendorf  299 and Pufendorf, usually endorsing them, sometimes dissenting. It was an extremely popular work, translated into six languages and widely read, not least in North America where it is thought to have influenced the ideas of the Founding Fathers.24 Any cultivated gentleman who wanted to know something of jurisprudence and political thought, but who did not care to plough his way through the demanding works of Grotius and Pufendorf or contemplate the dissents of Barbeyrac, could find a crisp and accessible summary of their views in Burlamaqui’s work. One incidental result was that Barbeyrac’s views on permissive law continued to be known by many who had not read his original work. Here, however, we need to consider Burlamaqui’s treatment of this topic only briefly because, although he wholeheartedly approved of Barbeyrac’s arguments, he did not add to them significantly. Burlamaqui began by defining the end of life as the attainment of happiness and perfection, and natural law as a system of rules, accessible to human reason, that could guide us to that end.25 He introduced his account of law in general (which he would later apply specifically to natural law) by describing a threefold meaning of the term “right” (droit) that had originally been presented by Suarez and then adopted by Grotius. In its most general sense, “right” meant whatever reason perceived as being conducive to the attainment of happiness.26 This was the primary rule of human conduct from which the other rules were derived.27 In a second meaning “right” could be taken in a subjective sense as a power or faculty inhering in persons. In this sense, for instance, one could say that everyone has a right to self24. The fullest account of Burlamaqui’s natural law theory is Bernard Gagnebin, Burlamaqui et le droit naturel (Geneva: La Frégat, 1944). His influence on the founding fathers is discussed in Morton White, The Philosophy of the American Revolution (Oxford: Oxford University Press, 1978). For a recent introduction to his life and works see Petter Korkman’s “Introduction” to J. J. Burlamaqui’s The Principles of Natural and Politic Law (1747), edited by Petter Korkman and translated by Thomas Nugent (Indianapolis: Liberty Fund, 2006). 25. Burlamaqui, Principles, 1.5.2–4, 64–65; 1.5.8–9, 67–68. Happiness or perfection as the end of life was a central teaching of Christian Wolff, who in turn had studied the work of Aquinas. 26. Ibid., 1.5.10, 69. 27. Ibid., 1.7.1, 81.

300  For and Against preservation.28 This was not a physical power but a moral one, and as such it imposed an obligation on others not to impede the exercise of the right.29 Burlamaqui went on to mention various types of rights, natural and adventitious, perfect and imperfect, alienable and inalienable.30 He noted here that some rights could not be renounced because they were related to duties. (The right of self-preservation was a common example.) But of course this applied only to some rights, not to rights in general. Other rights could be renounced and renunciation of them was “only a matter of prudence.”31 Finally, Burlamaqui explained that, in a third sense, “right” (droit) could mean the same as law (loi).32 He went on to give a definition of law that was evidently derived from Barbeyrac and that led to our particular theme of permissive law. Law I define as rule prescribed by the sovereign of a society to his subjects either in order to lay an obligation on them . . . or to leave them at liberty to act or not in other things just as they think proper, and to secure to them in this respect the full enjoyment of their rights.33

According to this definition, Burlamaqui noted, law in general could be considered as obligatory law or as a law of simple permission; whatever was not commanded or forbidden was left in the sphere of our natural liberty. Burlamaqui mentioned here that Grotius and Pufendorf had asserted a different view, that permission was not properly an act of law but mere inaction of the legislator.34 He added diplomatically that the difference between the two views was “not perhaps of any great consequence.”35 Still, he went on to vigorously defend 28. Ibid., 1, 7, 2, 81. 29. Ibid., 1.7.3–5,82–83, “other people ought not to employ their strength and liberty in resisting him on this point.” 30. Ibid., 1.7.8, 85–86. 31. Ibid., “there are rights that of themselves have a natural connexion with our duties, and are given to man only as a means to perform them. To renounce this sort of rights would be therefore renouncing our duty, which is never allowed.” 33. Ibid., 1.8.3, 89; 1.10.5,106. 32. Ibid., 1.7.8, 87. 34. Ibid., 1.10.6, 106. 35. Burlamaqui had an engaging way of introducing sharply opposed opinions by suggesting that they were not really too different from one another. On the vexed question of whether a thing was unjust because God commanded it or

Critics of Pufendorf  301 the opinion of Barbeyrac. A legislator acted with wisdom and deliberation, so when he left his subjects free to act as they chose in certain matters it was because that was conducive to the end he wanted to achieve. Accordingly, the silence of the legislator conveyed “a positive though tacit permission.”36 And, here again, the argument of Selden recurred. Whoever set certain limits that must not be exceeded also defined what was consented to and permitted. Permission was therefore “as positive an effect of law as obligation.”37 Still following Barbeyrac, Burlamaqui added that the permissions of law also conferred rights. Everybody agreed, he wrote, that a permission granted by law laid an obligation on others not to interfere with the exercise of such rights and authorized the right-holder to use force in defense of them.38 Earlier Burlamaqui had noted that the word for a right (jus, droit) could also mean law; now he showed how law, in its permissive form, could be a ground of rights. Finally Burlamaqui explained in an entirely traditional fashion that a permission of law left us at liberty to act as we thought proper, but that it might merely grant immunity from punishment or else express the full approbation of the legislator. Permissions of natural law always included approbation since God could not approve of the least evil; but permissions of human law might include acts that the legislator did not approve of but merely tolerated.39 Human actions were either good or bad or indifferent, and the indifferent ones were neither commanded nor forbidden, but were “referred to a law of simple permission.”40 When Burlamaqui turned from law in general to a discussion of natural law he wrote, “After having settled the general principles of God commanded it because it was unjust he wrote that the matter was “not at all difficult.” He explained, “A thing is just because God commands it. . . . But God commands such and such things because these things are reasonable in themselves.” (2.8.5, 195). 36. Ibid., 1.10.6, 107. 37. Ibid. 38. Ibid., 1.10.7, 107. 39. Ibid., 1.11.3, 114–15. Barbeyrac had developed this point at length in his Discourse on What Is Permitted by the Laws, translated in Hunter and Saunders, The Whole Duty of Man (Indianapolis: Liberty Fund, 2003), 307–30. 40. Ibid., 1.11.9,118.

302  For and Against law, our business is now to apply them to natural law in particular.”41 Accordingly, in his account of permissive natural law he simply reiterated briefly the points we have already considered. Besides obligatory natural law there existed also a natural law of simple permission that left us at liberty to act or not and that prevented others from hindering us in the exercise of our liberty. God had endowed humans with various faculties, including a power to choose their own courses of action; it was evident, then, that whenever he did not restrain the use of the faculty with a positive prohibition he left them at liberty to act according to their own discretion.42 And this permission of natural law also conveyed rights. It is on this law of permission that all those rights are founded, which are of such a nature as to leave us at liberty to use them or not, to retain or renounce them in whole or in part.43

Burlamaqui was remembering here his earlier explanation—rights that empowered us only to perform some duty were inalienable, while rights that we could exercise or not as we chose could be renounced. There were different kinds of rights in Burlamaqui’s jurisprudence as in Barbeyrac’s. Some were what we should call choice rights, others were only a means to fulfill obligations. The comments of Barbeyrac and Burlamaqui on permissive natural law and rights are interesting and significant because questions about natural rights—their existence and content, and the ways of defending them—became of increasing concern to jurists and political theorists during the course of the eighteenth century. Almost everyone agreed that in a (perhaps hypothetical) state of nature everybody was free and everything was common. The problem was to explain how one person’s use of his freedom could impose an obligation on others; and the problem was particularly acute for a growing number of thinkers who were skeptical about imaginary compacts in some bygone era. If freedom meant only an absence of law, then everyone was free to do whatever they wanted and everyone else was free to prevent 41. Ibid., 2.1.1,123. 43. Ibid.

42. Ibid., 2.4.23,162.

Critics of Pufendorf  303 them from doing so if that was what they wanted (as in Hobbes’s state of nature or Hohfeld’s modern depiction of some rights as “liberty rights” or “privileges”). But such freedom would be illusory. No one would be able to exercise his freedom freely. However, the situation was different if absence of restraining laws did not imply a mere vacuum of law but rather the existence of a permissive law that was a real positive law, a law that expressed the will of a legislator as much as any command or prohibition. In favor of this view it was argued the legislator—and in the case of natural law the legislator was an omnipotent God—obviously intended that the freedoms he conceded should be real freedoms, freedoms that the subjects could actually exercise. On this view it was easy to suppose, and Barbeyrac and Burlamaqui did suppose, that such freedoms necessarily imposed an obligation on others not to interfere with their exercise, and that the freedoms of permissive natural law were natural rights.

PA RT V II

Natural Law and the German Enlightenment

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 of Naturrecht continued 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, along1. For an introduction to this area of German thought see Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in the Early German Enlightenment (Cambridge: Cambridge University Press, 2001). Other valuable studies are J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998); T. J. Hochstrasser, Natural Law in the Early Enlightenment (Cambridge: Cambridge University Press, 2000). The German professors were

 

305

306  Natural Law and German Enlightenment side these problems, there was also another debate that focused on our theme of permissive natural law. German jurists continued to debate and to disagree about a central issue. If an essential function of law was to impose obligation, could there be a law of mere permission? In the early eighteenth century the two most influential German writers on natural law were Christian Thomasius and Christian Wolff. Thomasius continued the voluntarist tradition of Pufendorf especially in his early work; Wolff favored the more intellectualist approach of Leibnitz and emphasized reason rather than will as the source of natural law. These rival teachings dominated the German debate until, at the end of the century, Immanuel Kant transcended the whole issue with his new critical philosophy. not engaged merely in intellectual musings. In the age of enlightened absolutism their writings on economics and political philosophy often influenced ongoing movements of reform in the German states.

15

Wolff to Kant

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 good examples of the ways in which ideas about permissive natural law persisted in German thought down to the time of Kant and so pro1. These authors are discussed, along with several others including Thomasius, in K. Bärthlein, “Die Vorbereitung der Kantischen Rechts- und Staatsphilosophie in der Schulphilosophie,” in Kant: Analysen-Probleme-Kritik, edited by H. Oberer and G. Seel (Würzburg: Königshausen & Neumann, 1988), but the author does not discuss our particular theme of permissive natural law. Thomasius dismissed the idea of permissive law in the manner of Pufendorf. See his Fundamenta juris naturae et gentium (reprint of the 1718 edition) (Aalen: Scientia Verlag, 1963), 146–47, “Permission is not an act of law because one who permits does not prescribe a rule unless by this term is understood the confirmation or introduction of a right belonging to another . . . and as a consequence others are forbidden to disturb the one exercising the right. However, this permission is not a new act of law, but is included in the act of forbidding. It is clear from this that the controversy about preceptive and permissive law is mostly a logomachy.”

 

307

308  Natural Law and German Enlightenment vide a background against which his own work can be considered. And, since Kant himself engaged with the theme of permissive natural law primarily when considering the origin of property rights in the Doctrine of Right, I have mentioned this theme also in discussing the work of his predecessors.

Christian Wolff We can first consider the contribution of Christian Wolff.2 The work of Pufendorf and his followers was characterized by a very marked disdain for earlier scholastic writings—Pufendorf dismissed Catholic scholasticism as nothing but “idle and trivial logic-chopping.” But alongside their works there existed also a tradition of Protestant scholasticism that Wolff encountered in his early years as a student in Breslau. Wolff also had contacts with Catholic scholars and began to study the teachings of Thomas Aquinas there. In his later works he incorporated ideas of his own age (including the idea of permissive natural law) into a system of thought that broke with the voluntarist tradition of Pufendorf and that emphasized reason rather than will as the source of natural law. It was a system inspired in part by earlier scholastic writings and it had at its core a eudemonic doctrine like that of Aquinas, though here Wolff was influenced more directly by Leibniz—he has sometimes been regarded as an important intermediary between Leibnitz and Kant. Wolff believed that the whole cosmos exemplified a state of perfect harmony as an expression of the omniscient mind of God. The end of human life was to attain a comparable state of perfection which Wolff understood as “a harmony of the manifold,” a harmonious working together of all parts of a complex whole.3 Using the same language as Aquinas, Wolff also described this condition as a state of felicity or 2. For an introduction to various aspects of Wolff’s life and works see the Introduction of Jean École to La metaphysique de Christian Wolff, in Christian Wolff, Gesammelte Werke, Pt. 3, vol. 12 (Hildesheim: Georg Olms,1990) and the essays collected in European Journal of Law and Economics 4, no. 2 (1997). 3. Institutiones juris naturae et gentium, edited by M. Thommann in Christian Wolff, Gesammelte Werke, Pt. 2, vol. 26 (1969), §9, 5. (Henceforth cited as Inst.) Texts are cited by paragraph and page number.

Wolff to Kant  309 happiness, or as the summum bonum, the supreme good that humans could strive to achieve.4 Wolff’s notion of perfection was probably derived from Leibnitz (though he did not acknowledge the source), but the whole teleological structure of the argument may again remind us of Aquinas. There were, however, major differences between two thinkers. One of them, of special relevance for our theme, was that Aquinas excluded the ideas of permissive natural law and natural rights from his system of thought while Wolff gave them a place of central importance in his work. And, in doing so, he gave a classic formulation of an idea that was gaining favor in the eighteenth century—the idea that natural rights existed to make possible the fulfillment of natural obligations. In his edition of Aquinas’s Tractatus de legibus Thomas Gilby observed that Aquinas did not treat obligation as a separate specific topic that called for explanation. Wolff, on the other hand, treated natural obligation as a core element in his moral philosophy and from it derived his teachings on both obligatory and permissive natural law. His argument was summed up in a few crisp paragraphs of the Institutiones. It runs like this. For humans the good is whatever tends to the attainment of perfection. We are all naturally motivated to do what we see to be good and avoid what we see to be evil.5 And since we can only will what we regard as good and so desirable, and only not will what we regard as evil and so to be avoided, we are obliged by our own intrinsic nature to act in a way that tends to our perfection, our natural end.6 Wolff understood of course that humans were capable of acting otherwise, but he held that then their actions would contradict their own nature and so be “morally impossible.”7 4. Philosophia practica universalis secundum methodo scientifica, edited by M. Thomann, Gesammelte Werke, Pt. 2, vol.10 (1971), §374, 293. (Henceforth cited as Phil. Pract.) See also Jus naturae, Pt. 2, vol. 17, §5, 5. 5. Inst., §12, 6; §15,7–8. 6. Ibid., §35.18–19. 7. Ibid., §37, 19. Wolff quoted here the principle of contradiction on which his system of metaphysics was grounded—a thing cannot be and not be at the same time. In his moral philosophy he frequently inquired whether some act was “morally possible” or “morally impossible” depending on whether it conformed to this principle or violated it.

310  Natural Law and German Enlightenment Wolff described the obligation derived from humanly motivated acts as “active obligation.” Complementing it was “passive obligation,” the duty or “moral necessity” of conforming our actions to the requirements of active obligation.8 This passive obligation would have an important role in Wolff’s work as the source of natural rights. The argument next moved from natural obligation to natural law. To fulfill our obligations, Wolff continued, we need to have rules of conduct to follow and these are provided by the law of nature which, like natural obligation itself has a sufficient reason in the nature of man and of things.9 Wolff’s further explanation of this matter takes us to the heart of his teaching on obligatory natural law, permissive natural law, and natural rights. Since we are all bound to fulfill our obligations, he wrote, we must all be free to do what is necessary to achieve that end. Then he at once defined this freedom as a natural right. This faculty or moral power is called a Right. Whence it is clear that Right arises from moral obligation and that there would be no right if there were no obligation. Therefore, if the law of nature obliges us to something as an end, it gives us a right as a means. . . If there were no means the end could not be achieved.10

The argument was then reformulated in terms of permissive natural law. A law of nature is called preceptive when it obliges us to perform some action, prohibitive when it obliges us to omit some action, and permissive when it gives us a right to act.11

A little further on he gave an expanded definition of these terms. 8. Inst., §37, 20. 9. Inst., §40, 21; Phil. pract., §135,117, “Lex naturalis est, quae rationem sufficientem in ipsa hominis rerumque essentia atque natura agnoscit.” 10. Inst., §46, 24, “Facultas ista. seu potestas moralis agenda dicitur Jus . . . Unde patet, Jus oriri ex obligatione passiva, nec jus ullum fore, si nulla esset obligatio . . . Quodsi ergo lex naturae obligat ad finem, jus quoque dat ad media . . . Sine mediis nimirum fine potiri minime datur.” 11. Inst., §47, 24, “Lex naturae dicitur praeceptiva quae ad actiones committendas nos obligat; prohibitiva quae obligat ad actiones omittendas; permissiva quae jus dat ad agendum.”

Wolff to Kant  311 What we are obliged to do is called “required” (debitum); what we are obliged not to do is called “illicit” (illicitum); what we only have a right to do is called “licit” (licitum). Naturally, therefore, what is required comes from preceptive law; what is illicit comes from prohibitory law; and permissive law makes something licit.12

In these passages, and elsewhere, Wolff seems to have taken the notion of permissive natural law for granted. He did not overtly defend the idea or deploy any of the various arguments for and against it that were current in his day and that Darjes would present a little later. One might ask why he needed the idea at all. To understand this further, to explain the role of permissive natural law in his thought, we must turn to a more detailed consideration of two key terms in the subsequent argument—law (lex) and right (jus). Wolff defined law in general as “a rule by which we are required to regulate our actions.”13 Insisting on his own intellectualist doctrine, and probably with Pufendorf in mind, he rejected the view of those who held that all law was derived from the command of a superior which imposed an obligation on subjects. Such a teaching took no account of natural obligation, Wolff complained. It implied that no act was intrinsically good or evil and hence that, without an antecedent command of God, all acts would be morally indifferent.14 But in fact, Wolff maintained, natural law, like natural obligation, was not derived from the command of a superior but from human nature itself.15 There was no need therefore to appeal to a command of God to account for the obligatory force of the law.16 Wolff also saw no need to explicitly defend his doctrine of permissive natural law against the argument that no law could be permissive because 12. Ibid., §49, 25. 13. Ibid., §39, 20; Phil. pract., §131, 115. 14. Phil. pract., §131, 115. 15. Inst., §40, 21; Phil. pract., §135, 117, “Lex naturalis est, quae rationem sufficientem in ipsa hominis rerumque essentia atque natura agnoscit.” 16. Phil. pract., §178–79. Wolff accepted the common view that God was the ultimate author of nature (Inst., §41, 21). But he argued that the content and obligatory force of natural law could be established without appealing to any divine command. He maintained that natural law and natural obligation would exist even if we grant the “impossible hypothesis” of the atheist that there is no God (Phil. pract., §245,191–92).

312  Natural Law and German Enlightenment all law imposed obligation. He had never accepted that argument in the first place; his own idea of natural law could encompass without strain the ideas of permissive natural law and also of natural rights. When Wolff discussed the nature of rights his understanding of jus differed sharply from that of Aquinas. The Dominican master had defined “right” (jus) in an objective sense as “the object of justice” or “what is just,” a just state of affairs.17 But, for Wolff, jus was a subjective right inhering in persons, “a moral faculty of acting or not acting” or “a power to do what is morally possible.”18 As we saw, for Wolff a natural right was a right derived from natural law, specifically from permissive natural law. Summing up, he wrote, “Permissive law gives a right . . . to do the things that are necessary to satisfy natural obligation.”19 This natural right, like natural law itself, had a sufficient ground in “the essence and nature of man and of things.”20 But, although Wolff found the origin of natural law and natural rights in human nature, but unlike Grotius and Pufendorf he did not derive them from human sociability but rather from the moral obligation of each individual person to seek self-perfection. The jus that was conceded by permissive natural law had two principal effects in Wolff’s system. It conferred a right of noninterference by others and it authorized a choice among the many “possible actions” that were consistent with the obligations of natural law. As to the first point: Wolff wrote that the law of nature would contradict itself if it gave one person a right to act and another a right to impede the act. The right given to me by natural law was a right to fulfill a natural obligation. But if the law also allowed another person to impede me in the exercise of my right, the obligation would not be fulfilled. And that would by an absurd situation, Wolff observed. He concluded that, when natural law gives a right to act, it also gives a right to resist anyone who seeks to impede the performance of the act.21 17. Summa theologiae, 2.2ae.57.1. 18. Phil. pract., §156, 129. 19. Ibid., §159, 131. Wolff gave the homely example of a fishing permit. The permit does not oblige anyone to fish or not to fish but it gives a right to fish within the restrictions of the law to anyone who wishes to do so. See §165, 135. 20. Ibid., §161, 132. 21. Inst., §50, 26; Phil. pract. §180, 145.

Wolff to Kant  313 Wolff’s treatment of natural law as defining an area of choice was introduced when he made the point, often repeated in his works, that permissive natural law itself did not impose any obligation. Permissive law is that which gives a right to act or not, but nevertheless does not oblige to act or not. It can be defined in one word, Permission.22

Thus, Wolff continued, preceptive natural law demands that we preserve the life and health of the body which requires us to take food and drink. Permissive natural law accordingly gives us a right to do all that is needed to supply ourselves with nourishment. It is permissible, therefore, to catch fish or trap birds and animals to eat or draw water to drink.23 But permissive natural law does not oblige to any particular course of action. Similarly, Wolff added here, we are obliged to pay for a purchase but we are permitted to buy from anyone we choose. Elsewhere, discussing the use of food in more detail, Wolff explained that we can choose to eat anything we like, anything that suits our taste, provided that it is not injurious to health.24 Wolff’s permissive natural law was still a law of liberty in that it left humans free to choose among many acceptable alternatives. Although Wolff’s treatment of a right as a subjective power was alien to the teaching of Aquinas it owed a good deal to ideas derived from Suarez, though always with adaptations that made them congruous with Wolff’s own doctrines. Wolff, for instance defined a right as a “moral faculty,” the same term that Suarez had used. However, Suarez gave this subjective definition as only one meaning of the term; he also mentioned the objective definition of Aquinas and a third meaning in which right (jus) was equated with law (lex). Wolff gave more emphasis to the subjective definition by choosing it as the one proper meaning and insisting on a distinction of meanings between jus and lex.25 Suarez also introduced the argument that a permissive natural law granting a right could be seen as real law when it laid an obligation on others not to interfere with the exercise of the right, Wolff 22. Phil. pract., §165, 135. 23. Ibid., §170, 138–39. 24. Ibid., §48, 42. 25. Ibid., §135, 117–18; §160, 131–32, “Alia nimirum est lex naturae, aliud vero jus.” Wolff complained that the words were confused in vulgar speech.

314  Natural Law and German Enlightenment had a parallel doctrine but his was founded on a different conception of right and law. For him the authority of the permissive law was not derived from the obligation of others to respect the right that was granted; it came from the duty of the right-holders themselves to fulfill the natural obligation that inhered in each person. Wolff wrote repeatedly that natural rights were derived from natural obligation. He wrote, for instance that “there could be no right where there was no obligation.”26 In addition, there was such a bond between the two that “one could be deduced from the other by a continuous thread of reasoning.”27 And in Wolff’s account the obligation was always primary, the right derivative. Permissive natural laws gave us a right to do what was necessary to satisfy an obligation; they therefore had to presuppose preceptive or prohibitive laws that imposed the obligation, and were derived from them.28 Wolff also wrote that a natural right correlated with the obligation of law and so cohered with it that the two could not be separated. Natural right flowed from natural obligation as a source.29 The right and obligation always existed simultaneously; it was not a case of one succeeding the other as, in the physical world, a tree grew from a seed.30 There is one final point to be made about Wolff’s teaching, We noted earlier that his idea of permissive natural law left open an area of free choice for humans, but still the argument that one has a natural right only to fulfill the obligations of natural law may seem to imply only a very narrow and restrictive doctrine of rights, and it has sometimes been interpreted in that way. However, when one considers the whole of Wolff’s treatment of this issue his argument leads to a quite different conclusion. Wolff’s characteristic assertion was not simply that we have a right to fulfill the obligation imposed by law 26. Inst., §46, 24. 27. Ibid., §63, 32. 28. Phil. pract., §184, 148. 29. Ibid., §160, 131–32. 30. Jus naturae, §27, 21. Wolff returned to this theme repeatedly in the Jus naturae. He wrote that a right derived from a passive obligation (§23, 19); if there were no obligation there would be no right (§25, 21); an innate right arose from an innate obligation(§26, 21); preceptive and prohibitive laws explained the obligations of man, permissive laws (that imposed an obligation of noninterference by others) his rights(§55, 36); rights and obligations were so interwoven that they depended on one another(§59, 39). Wolff added here that this interdependence had not been treated by previous writers on natural law.

Wolff to Kant  315 but that we have a right to do whatever is necessary to achieve that purpose (provided that we do not violate the rights of others).31 And that opens up a wide field of possibilities. Since the natural obligation that we have to fulfill is to strive for a life of felicity, of perfection, the natural rights that permissive natural law concedes include all the rights necessary to attain that end. Everything conducive to a life of happiness and perfection becomes a natural right. In modern language one might say that we have a natural right to everything needed for humans to flourish or, as Wolff wrote, “to live the life of a man.”32 In the Jus naturae Wolff enumerated many such rights—a right to liberty (§135), a right of self-defense (§973), a right to food and drink (§383), to medication (§416), to clothes and housing (§456, §458). Also a right to acquire property, a right to inquire into the nature of the natural world (§1136), a right to enjoy innocuous pleasures (§286, §410), even a right to use artificial means to enhance our natural beauty (§488). Elsewhere Wolff summed this up as a right to all that is necessary to preserve life and health and to live “a commodious and pleasant life.”33 One could hardly envisage a more comprehensive array of natural rights. One of the rights that Wolff mentioned was a right to acquire property, a perennial theme of writing on natural law. After the work of Locke the question of whether an original contract was needed to explain the origin of private property had become a matter of dispute. Wolff chose to omit the idea of a primitive contract from his account without adopting Locke’s labor theory; instead he relied on his own doctrine that natural law gives us a right to anything necessary to perfect our state, and treated the emergence of individual ownership as a sort of natural evolution. Wolff envisaged a primeval state of affairs where people lived in a “negative” community and everything was res nullius (belonging to no one).34 In seeking a state of perfection it was necessary to maintain life and health; hence all 31. Inst., §86, 45, “adeoque unicuique jus suum tribuere, nullius jus violare.” 32. Jus naturae, §1.1. 33. Inst. §114, 62; §119, 66, “jus est ad ea quae ad vitae commoditatem et jucunditatem faciunt.” 34. Ibid., §191, 106.

316  Natural Law and German Enlightenment had a right to use the necessities of life. Also, since some things were not available at all times they had a right to store things up for future use. Citing his previous argument on the inviolability of rights, Wolff argued that, as long as this situation lasted, no one could disturb another in the exercise of the right. In this way, he added, the notion of a right to property came to be insinuated.35 The actual transition from a right of use to individual ownership came about because of the gradual disappearance of the original simplicity of life. People felt a growing need for things made by the industry and artifice of others. In these circumstances the community of goods could not be maintained without the exercise of extraordinary virtue by everyone—which was hardly to be expected—and so it came to be understood that the things that had formerly been res nullius ought to belong to individuals. And since the natural law of self-perfection obliged us to choose the best alternative, private property was instituted in accordance with this natural law.36 From then onward anyone could take as his own any res nullius that he needed, and the judgment of need depended on his own will and power. The way of signaling an owner’s will was by occupation, so occupation of a res nullius was the original mode of property acquisition. And the right of occupying belonged to everyone by nature.37 To sum up: Wolff presented a system of natural law similar to that of Aquinas in its eudemonistic doctrine but he incorporated into it ideas of permissive natural law and natural rights that had become prominent in his own day, but that Aquinas had not included in his teaching on natural law. Wolff’s work could thus be seen as a version of Thomistic teaching brought up-to-date for a modern readership, and as such it acquired a wide diffusion in Catholic centers of learning as well as in Protestant ones. Whether Wolff achieved a real synthesis or only an uneasy mixture of doctrines remains a matter of controversy. Marcel Thomann, who edited several volumes of the modern edition of Wolff’s Gesammelte Werke, argued that Wolff’s “subjectivism” and “egoism” were incompatible with the views of Aquinas and that, specifically, his understanding of right (jus) was 35. Ibid., §185, 103, §192, 107. 37. Ibid., §210, 117.

36. Ibid., §191, 106, §194, 107–8.

Wolff to Kant  317 “diametrically opposed” to Thomistic teaching.38 However Thomann probably underestimated the elements of individualism and licit selflove that are also found the writings of Aquinas. Earlier in this work I suggested that at times Aquinas’s argument seems to cry out for a doctrine of permissive natural law and natural rights to complete it. From that point of view one might see Wolff as the scholar who provided the necessary augmentation.

Joachim Darjes Wolff used the idea of permissive natural law confidently without ever questioning its validity, but to Joachim Darjes, writing a little later, the matter seemed highly problematic. Darjes presented a detailed account of the state of the question—whether there could actually be a permissive kind of natural law—as it existed in the middle of the eighteenth century. He introduced the question like this: Among the most celebrated questions that the doctors of natural law dispute, by no means the least place is claimed by the one that is posed concerning permissive natural law.39

A reader familiar with the earlier history of this theme will find little new in Darjes’s arguments, but it is still interesting to note that an issue we first encountered among the medieval canonists was still a “celebrated question” in the age of Enlightenment. 38. On the diffusion of Wolff’s work see Thomann’s Introduction to the Institutiones. For his criticisms of Wolff’s teaching see the Introduction to the Jus naturae and “Christian Wolff et le droit subjectif,” Archives de philosophie du droit 9 (1964): 153–74. Wolff influenced Catholic teaching especially through the work of Luigi Taporelli d’Azeglio (1793–1862), an Italian Jesuit who included Wolffian doctrines in his widely read Saggio storico di diritto naturale (including the definition “Jus est potestas aut facultas”). Pope Leo XIII in turn was a pupil of Taporelli and, in his great encyclical on social questions, Rerum novarum, he included the idea of a natural right (something the papacy had frowned on since the days of the French Revolution). For an example of Wolffian reasoning in modern Catholic legislation see the decree on religious freedom, Dignitatis humanae, of Vatican Council II, “[E]ach one has an obligation and therefore a right to seek the truth in religious matters.” 39. J. G. Darjes, Observationes iuris naturalis, socialis et gentium (Jena: Sumptibus Theod. Wilh. Ernest Guth, 1751–54), 1, 268. Darjes is known now principally for his cameralist writings on economics and statistics.

318  Natural Law and German Enlightenment According to one point of view, Darjes wrote, all of natural law could be divided into preceptive law and permissive law. The first definition referred to natural law insofar as it imposed obligation, the second to natural law that did not command or forbid and so did not oblige.40 Darjes next set out arguments for and against this point of view, then his own position, and finally his replies to some objections. In favor of permissive natural law Darjes first quoted the familiar text of Modestinus in the Digest—the functions of law were to command, forbid, permit, and punish, with the added comment that the definition could well be applied to natural law.41 So one could indeed conceive of a natural law that was permissive. Secondly, since people were allowed to do whatever natural law did not forbid, there must be a permissive natural law relating to this area of conduct. Thirdly, natural law obliged us not to impede anyone who made use of a permission granted by natural law. Thus, a permissive natural law could impose obligation and so could properly be called law. Finally, there were certainly permissions in civil law, as for instance when usury within certain limits was allowed. So why not in natural law?42 Darjes then showed how those who opposed the idea of a permissive natural law could respond point by point to the above arguments. The opponents held that it was of the intrinsic nature of law to command or forbid; therefore, permission could not properly be included among the functions of law. As for the second argument, the opponents simply denied the consequence that was drawn; it did not follow that, because people were free to act in some ways, there must therefore be a permissive natural law. In the third argument, the obligation mentioned did not derive from the permission itself but from the preceptive law, Neminem laedas (“Harm no one”). And the fourth argument merely showed that the civil law did not restrict all our liberties.43 40. Ibid., §2, 268. Darjes cited Grotius and Pufendorf here as opponents of this view. 41. Ibid., §3, 269. Darjes did not indicate here how the specific wording of the Digest text could be explained but at a later point, responding to objections, he wrote that the permission was not an effect of law but of a lack of any preceptive or prohibitive law. See §8,271. 42. Ibid., 3, 269–70. 43. Ibid., §4, 269.

Wolff to Kant  319 Darjes added one further argument for the opponents of permissive natural law. According to this one, all our actions were intrinsically good or evil; natural law commanded the good and prohibited the evil; but this left no room for a merely permissive natural law. Further on, Darjes supplied a response to the argument. Not all our acts were good or evil; some were indifferent; and, in any case, while natural law certainly prohibited all evil actions it did not command all good ones.44 Darjes’s own solution relied on the now well-established distinction between different meanings of ius; indeed the whole controversy, he wrote, arose from this ambiguity. The word ius, Darjes noted, could be understood in a subjective or objective sense.45 Taken subjectively it signified a faculty or moral liberty to do whatever seemed good to us; taken objectively it signified a law to which our actions must conform. From this it is clear that permissive natural right (ius) either signifies a law that does not command or forbid, or else a moral faculty or liberty of doing or not doing what the law does not command or forbid, things that are not repugnant to natural law.46

This was the crux of the argument. All the modern authors we have considered started out from an assumption of the natural liberty of man, but disagreements had arisen about whether this implied a permissive natural law or merely an absence of law. And the disagreements reflected different understandings of the intrinsic nature of law. Darjes went on to argue that, taken in the first sense, the idea of a permissive natural law involved an internal contradiction. Properly speaking, law imposed obligation. To say, then, that there was a kind of law that did not command or forbid was to say nothing.47 On the 44. Ibid., §5, 269; §13, 274. 45. Ibid., §6, 270, “Causa huius controversiae . . . est ambiguitas nominis iuris. Monui observatio secunda nomen iuris aut subiective aut objective sumi.” Thomann saw this as the first explicit reference to subjective and objective right. 46. Ibid., “His praemissis patet ius naturale permissivum aut significare legem naturalem quae non praecipit nec vetat, aut facultatem seu libertatem moralem agendi vel non agendi quae leges naturales nec praecipiunt nec vetant, seu quae . . . legibus non repugnant.” 47. Ibid., §7, 271, “Si ergo ius naturale permissivum significet legem naturalem, quae nec praecipit nec vetat, ius naturale permissivum erit nullum.”

320  Natural Law and German Enlightenment other hand, if ius permissivum were taken in the second sense, then it could not only be conceived of, but it actually applied to many of our acts. In the “court of nature” there belonged to us a moral liberty of doing or omitting many things that were not commanded or forbidden by natural law—such things as occupying a res nullius, entering into a contract, or disposing of our own goods.48 Darjes’s conclusion was, therefore, that taken in a strict sense, law (lex) did exclude permission. But he was reluctant to see absence of law as a mere vacuum. In his argument, where law did not determine our actions, there was a realm of permissive natural right (ius), and Darjes gave a juridical flavor to this area of human behavior with his reference to a “court of nature.” His argument would not have satisfied earlier defenders of permissive natural law such as Selden and Barbeyrac, who held that permission could express the will of a legislator just as much as command, and could therefore be truly law. Nor would it have pleased Wolff who insisted that permissive natural law was derived from preceptive natural law and ultimately from natural obligation.49 Darjes’s argument relied rather on the teaching of Suarez, transmitted by Grotius, concerning the different meanings of ius.

Gottfried Achenwall In discussing permissive law Darjes mentioned the occupation of a res nullius only in passing, but Gottfried Achenwall, the third author to be considered here, discussed in detail both permissive law and its relation to property rights. Much of his teaching was taken from Wolff, sometimes almost word for word. He wrote, for instance, that a moral obligation implied a moral faculty or power, that a faculty conceded by moral law was a right, and that we have a natural right to do whatever helps toward the attainment of perfection.50 48. Ibid., §9, 271, “Quum enim permultae sint actiones humanae secundum naturam obiective indifferentes. . . . In foro itaque naturali nobis competit facultas seu libertas moralis permultas agendi vel omittendi, quae legibus naturalibus nec praecepta nec vetita sunt . . . facultas moralis res nullius occupandi, contrahendi, et de bonis nostris disponendi.” 49. Phil. Pract., §160, 131. 50. Prolegomena iuris naturalis (Göttingen: Sumptibus Victorini Bossiegelli, 1781), §44, 37, §45, 38.

Wolff to Kant  321 Achenwall also gave long lists of the different moral qualities that could be ascribed to human acts. For instance: “Some acts are illicit, licit, required, commanded, prohibited, obligatory . . . morally good . . . morally bad . . . morally indifferent.”51 One could find all these descriptions in Wolff. There was, however, a significant innovation in Achenwall’s way of relating licit or permitted acts to all the other kinds. It was commonly understood that indifferent acts, acts that were neither commanded nor forbidden, were therefore permitted. Wolff went further and asserted that the commands and prohibitions of law themselves implied a kind of permission. If an act was commanded by law, it was necessarily permissible to perform the act (and similarly to omit an act that was prohibited). Wolff had distinguished sharply between two kinds of permissible acts, those that were done to fulfill an obligation imposed by law and those that were done freely by virtue of our natural liberty in the absence of any restraining law. His interest of course was focused almost entirely on the first kind. Achenwall’s contribution was to group both kinds of permission together in a category of “licit” acts and suggest that this way of categorizing them was a necessary part of any juridical system. His texts have been analyzed in detail by Joachim Hruschka who saw in them both a significant development in the prehistory of modern deontic logic and a significant influence on Kant.52 Achenwall’s teaching was conveyed principally in two passages of his Prolegomena iuris naturalis. One of them expressed a common doctrine. An act required by juridical law is called a COMMANDED ACT. . . . An act that is neither commanded nor prohibited (briefly: non-commanded) by a superior is called PERMITTED with respect to him: if he made no determination about the act it is called IMPLICITLY PERMITTED; if he determined 51. Ibid., §61, 44. 52. Joachim Hruschka, Das deontologische Sechseck bei Gottfried Achenwall im Jahre 1767 (Hamburg: Joachim Jungius, 1986); “The Hexagonal System of Deontic Concepts according to Achenwall and Kant,” Estudios de Historia de la logica, edited by J. Angelleli and A. d’Ors (Pamplona: Editiones Eunate, 1990), 277– 94; “The Permissive Law of Practical Reason in Kant’s Metaphysics of Morals,“ Law and Philosophy 23 (2004): 47–72. See also the numerous references to Achenwall in B. S. Byrd and J. Hruschka, Kant’s Doctrine of Right: A Commentary (Cambridge: Cambridge University Press, 2010). My own treatment of Achenwall’s texts is indebted to Hruschka’s work.

322  Natural Law and German Enlightenment that it might licitly be committed or omitted it is called an EXPLICITLY PERMITTED ACT.53

In this formulation the term “permitted act” included all indifferent acts, acts that were neither commanded nor prohibited by any relevant law, but no other category of permitted behavior was mentioned. Achenwall’s further insight that a commanded act was itself permitted was conveyed in a long, intricate paragraph that I will consider clause by clause. In this text the word licita was used rather than permissa to designate the broader range of permitted acts that Achenwall presented. Any free act considered within a given system of law is either contrary to some law or to none. . . . The former act is called ILLICIT, the latter LICIT.54

This may seem merely a restatement of the previous argument; here again the idea of permission was related to an absence of preceptive law. But the negative formulation, “contrary . . . to none,” left open further possibilities. Acts performed in order to fulfill a command or prohibition of law were evidently not contrary to the law and so, according to this definition, could be classified as licit acts along with acts that were neither commanded nor prohibited. Achenwall continued: Further, either a law has determined that some act be done or not done, or no law has made this determination. In the first case the act is called an OBLIGATORY ACT, in the second case an INDIFFERENT ACT. Finally an OBLIGATORY ACT is either COMMANDED or PROHIBITED depending on whether it is to be committed or omitted.55

We have, here again, the familiar triad—commanded, prohibited, indifferent—but Achenwall did not go on to argue in the usual fashion 53. Prolegomena, §63, 35, “Actio autem a superiore nec praecepta nec prohibita . . . vocatur respectu eiusdem PERMISSA: sive nihil de tali actione determinaverit, quae actio speciatim IMPLICITE (tacite) PERMISSA vocatur: sive determinaverit eam licite et committi posse et omitti, ACTIO EXPLICITE PERMISSA.” 54. Prolegomena, §26, 24, “Actio libera si refertur ad certum legum genus, vel alicui earumdem vel nulli est contraria : illa ACTIO vocatur . . . ILLICITA, haec LICITA.” 55. Ibid., “Porro actio libera vel ab aliqua harum legum est determinata ut fiat aut non fiat, vel ita determinata non est: illa dicitur ACTIO OBLIGATORIA, haec INDIFFERENS. Denique ACTIO obligatoria vel PRAECEPTA est vel PROHIBITA.”

Wolff to Kant  323 that permission referred to the realm of indifferent acts. Instead he presented a detailed grid of licit and illicit acts in which licit acts were included in the categories of the commanded and the prohibited. Thus it is clear that (1) every non-indifferent act is obligatory. (2) An indifferent act is licit whether it it committed or omitted: but on the other hand, as regards an obligatory act that is licitly committed, it is illicit to omit it, and, as regards one that is licitly omitted, it is illicit to commit it.56

Hrushka wrote that the use here of the term licita to include commanded acts that could also be classed as permitted ones was “one of Achenwall’s main achievements.”57 From another point of view it might be regarded as only a reformulation of Wolff’s teaching that an obligatory law implied a permission. Achenwall was no doubt influenced by Wolff here; but Hruschka was right to see an innovation in the way that Achenwall set the different kinds of permission in his intricate grid of relationships between law, obligation, and permission and between acts that were commanded, prohibited, or indifferent. Achenwall’s argument presented a sort of general theory of obligation and permission. Hruschka pointed out that it is possible to construct a modern deontic hexagon from the junctions and disjunctions of his system.58 I adapted his argument in an earlier chapter to show how it might apply to the work of a much earlier author, Marsilius of Padua. When we turn to Achenwall’s writing on the origin of property rights, we find a teaching that was again dependent on that of Wolff. Achenwall too explained that everyone had a right to do whatever was necessary for the attainment of self-perfection and happiness; and this meant that all had a right of using anything needed for a commodious and happy life provided only that they did not injure others.59 In the primeval negative community there was no individual property; everything was res nullius, belonging to no one, open to 56. Prolegomena, §26, 24, “Unde liquet 1) omnem actionem non indifferentem esse obligatoriam, 2) actionem indfifferentem licitam esse seu committatur seu omittatur: contra vero ea actionem obligatoriam eam, quae licite committitur, omitti illicite; quae omittitur licite illicite committi.” 57. “Hexagonal System,” 257. 58. For Achenwall’s hexagon see Hruschka, Sechseck, 18. 59. Achenwall, Ius naturae in usu auditorum (Göttingen: Sumptibus Victorini Bossiegelli, 1781), §106, 88–89; §107, 89.

324  Natural Law and German Enlightenment all. Accordingly, Achenwall argued, anything could lawfully become someone’s property.60 The original mode of acquisition was by occupation, taking something into one’s possession with the intention of excluding others and laying an obligation on them to abstain from it. Such occupation could occur without injury to other persons because what was taken did not belong to any of them.61 To take what another had acquired was to do an injury, but to occupy something belonging to no one was to exercise a right.62 All this closely paralleled the teaching of Wolff, but there was a change of emphasis in Achenwall. Wolff did not mention community consent as necessary for the institution of private property, but Achenwall made a point of insisting that such consent was not needed. He seems to have thought that insisting on the need for a hypothetical contract would undermine the basis of property right. According to his account, the act of a first occupant was justified by the right of self-preservation, by the moral faculty of using necessary things, and by everyone’s natural liberty.63 It did not, therefore, need the consent of others. Those who maintained that such consent was necessary were indulging in mere fictions.64 Achenwall was not merely arguing, like Filmer before him, that such universal consent was highly improbable; he was radically opposed to the whole idea in principle. If common consent were necessary, he argued, then anyone who occupied a res nullius against the will of the rest of humankind would be a violator of their natural right. But this could not be not the case. If your innate right to use unoccupied things as your own depended on the consent of others, Achenwall concluded, they would have a right to exclude you from such use, but then your right would not be a right at all.65 The problem of first acquisition is a perennial one. The main difficulty is that one who takes for himself what had been available to everyone might seem to steal something from them. One of the twelfth-century canonists wrote, “If I wanted to snatch for myself what was common I should commit a theft.” But he went on to ex60. Ibid., §108, 90; §111, 93. 62. Ibid., §116, 98. 64. Ibid., §116, 98.

61. Ibid., §113, 94; §110, 92. 63. Ibid., §113, 95. 65. Ibid.

Wolff to Kant  325 plain that this was not really the case by referring to the Roman-law doctrine of res nullius and by introducing the idea of a permissive natural law.66 At the end of the eighteenth century, Immanuel Kant was still wrestling with such problems. 66. O. Prˇerovský, ed., Huguccio Pisanus. Summa Decretorum, vol.1 (Vatican City: Biblioteca Apostolica Vaticana, 2006), 36.

16

Kant: Permissive Law and Property

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 the Rechtslehre (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 philosopher’s teaching 1. Die Metaphysik der Sitten, in Kant’s Gesammelte Schriften (Königlich Preussischen Akademmie der Wissenschaften: Berlin, 1907), Pt. 2, vol. 6. The Doctrine of Right forms the first part of the Metaphysics of Morals. See Mary Gregor, trans., The Metaphysics of Morals (Cambridge: Cambridge University Press, 1991). I have generally followed Gregor’s excellent translation but occasionally departed from it. For instance, Gregor often translates Kant’s Gesetz as “principle” where it seems to me that the more obvious word “law” is preferable, especially since Kant sometimes added the Latin word lex in parentheses. I have also followed Gregor’s practice of capitalizing the word “Right” when it refers to justice generally but not when it refers to an individual right (though sometimes Kant’s text is ambiguous). In subsequent notes I give a page reference to Gregor’s translation and in parentheses a reference by volume and page to the original text in the Prussian Academy edition of Kant’s Gesammelte Werke. Italics in quotations from Kant are all in the original text. 2. R. Brandt, “Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants

326

Kant: Permissive Law and Property  327 on permissive natural law will provide a fitting conclusion to our own study.

Kant in Contexts Kant’s renown as an innovative thinker rests mainly on his two major works of critical philosophy, the Critique of Pure Reason and Critique of Practical Reason; but in his later years he applied the principles formulated in those works to practical problems concerning the right relationship between states, right order within a state, and the ties of justice subsisting between private individuals. Consideration of this last topic, a principal theme of Kant’s Rechtslehre, led the author to undertake a detailed discussion of the origin of individual ownership and of the metaphysical principles that could explain how an original acquisition of property could be possible and rightful.3 And it was in considering these questions that Kant presented his own version of a doctrine of permissive natural law. (For Kant laws that could Rechtslehre,” in Rechtsphilosophie der Aufklärung, edited by R. Brandt (Berlin: de Gruyter, 1982), 233–85. Brandt restated his argument in a later article, “Das Problem der Erlaubnisgesetze im Spätwerk Kants,” in Zum ewigen Frieden Immanual Kant, edited by O. Höffe (Berlin: Akademie Verlag, 1995), 69–86. See W. Kersting, “Freiheit und Intelligibiliter Besitz,” Allgemeine Zeitschrift für Philosophie 6 (1981): 31–51 and “Politics, Freedom, and Order: Kant’s Political Philosophy,” in The Cambridge Companion to Kant, edited by P. Guyer (Cambridge: Cambridge University Press, 1992), 342–66 (esp. 348–51). 3. The best general account of the Doctrine of Right is A. Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, Mass.: Harvard University Press, 2009). Many particular aspects of the work are discussed in M. Timmons, ed., Kant’s Metaphysics of Morals: Interpretative Essays (Oxford: Oxford University Press, 2002). A detailed commentary on the text is provided by B. S. Byrd and J. Hruschka, Kant’s Doctrine of Right. A Commentary (Cambridge: Cambridge University Press, 2010), with bibliography. Articles that focus on the particular problems discussed below include K. Baynes, “Kant’s Property Rights and the Social Contract,” The Monist 72 (1989): 433–53; K. Flickschuh, “Freedom and Constraint in Kant’s Metaphysical Elements of Justice,” History of Political Thought 20 (1999): 250–71; J. Hruschka, “The Permissive Law of Practical Reason in Kant’s Metaphysics of Morals,” Law and Philosophy 23 (2004): 47–72; A. Szywolak, “Kant’s Permissive Law: Critical Rights, Sceptical Politics,” British Journal for the History of Philosophy 17 (2009): 567–600. For an earlier treatment of the problems discussed here see Tierney, “Permissive Natural Law and Property: Gratian to Kant,” Journal of the History of Ideas 62 (2001): 381–99.

328  Natural Law and German Enlightenment be recognized by reason without an external legislator were natural laws.)4 We should note at the outset that Kant’s treatment in the Rechtslehre of problems concerning property ownership is notoriously complex. Mary Gregor, the translator of the work and an eminent Kant scholar, observed that “Kant has never been accused of underestimating his readers, but he seldom treats them so harshly.”5 She was referring specifically to the pages of the Rechtslehre where Kant discussed the origin of private property. Unfortunately those pages are the ones most relevant for the present inquiry. A historian cannot expect to add even a pebble to the mountain of scholarship on Kant that philosophers have built up in the course of the past two centuries. My aim here must therefore be something different. Philosophers writing on the Rechtslehre have usually been concerned to elucidate the real meaning that they discern behind the façade of his difficult language, often by relating Kant’s doctrines to the context of his critical philosophy as a whole or to the historical context of the revolutionary age in which he lived. Brandt, for instance, compared the “provisional” and “peremptory” rights treated in the Doctrine of Right with the “problematic” and “assertoric” judgments of the Critique of Pure Reason. Brandt also pointed out that the major events of Kant’s lifetime evidently influenced his work, above all the French Revolution, and also the movement of governmental reform in Prussia and the “over-hasty” reforms of Joseph II in Austria. But there is another context within which Kant’s arguments can be considered. At the time he wrote there already existed a centuries-old tradition of reflecting on permissive natural law as a ground of property rights. So on one level the content of his teaching was quite traditional. Many earlier authors had suggested that permissive natural law could justify individual ownership and that such ownership could 4. Gregor, Metaphysics of Morals, 52 (6, 224). Kant noted here that laws recognized a priori by reason were “indeed external but natural laws.” 5. See M. Gregor, “Kant’s Theory of Property,” Review of Metaphysics 41 (1988): 787. The problem is further complicated by corruptions in the original edition of the text.

Kant: Permissive Law and Property  329 be acquired by the occupation of a res nullius, ideas that would be of central importance in Kant’s later argument. We even encounter frequently the same Latin words and phrases that Kant liked to deploy occasionally to adorn and buttress his arguments—such terms as ius naturae, meum et tuum, permissio, licitum, dictamen rationis, res nullius, occupatio. Similar ones, both the words and the ideas, can be found in a few lines of the great canonist Huguccio from about 1190. By the law of nature (ius naturae) something is mine (meum)and something is yours (tuum), but this is by permission (permissione) not by precept . . . from the law of nature that is licit (licitum) and just and from reason and the judgment of reason, for reason dictates (dictat) that what belongs to no one (res nullius) is conceded to an occupier (occupanti).6

Of course there is no question of direct influence here. Most certainly Kant did not know the work of Huguccio. But the text does indicate that traces of an earlier tradition of thought and language persisted in Kant’s work when he considered the origin of property. But although Kant’s argument included various elements of older teachings—bits and pieces of earlier doctrines one might say—the old ideas were carried over into Kant’s own new world of thought; old ideas were incorporated into a new philosophy. This is the context within which I want to consider Kant’s work. In exploring it my purpose is not to present another attempt to derive a coherent doctrine from the various views that Kant presented but rather to accept, even accentuate, all the apparent aporias in his argument and try to understand how they came to inhabit his work. In doing this we shall need to consider how the old ideas fitted into his new philosophy—or did not fit.

Forms of Permissive Law We need first to consider the ideas concerning permissive law that the philosopher had formulated in his earlier works and then how 6. Huguccio, Summa Decretorum, 36, 38, “de iure naturali aliquid est meum et aliquid est tuum. Set de permissione et non de precepto . . . de iure naturali quod dicitur licitum sive fas, et de ratione et iudicio rationis. Dictat ergo ratio ut, quod in nullius bonis est, occupanti conceditur” (emphases added).

330  Natural Law and German Enlightenment he deployed them in the Doctrine of Right. Kant gave an apparently simple and straightforward definition of permissive natural law in the preliminary notes to the Tugendlehre. “Lex permissiva is the law by which something is permitted by natural law that is forbidden by civil law.”7 The difficulty here is that Kant’s specific applications of the idea of permissive natural law seldom conformed to this simple definition. His first more detailed discussion of the subject was presented in a lecture course of 1793–94 reported by Vigilantius. In this work, echoing a centuries-old tradition, Kant first defined permissive law as relating to indifferent things, adiaphora, that were neither commanded nor forbidden, where no obligation was involved. “Adiaphora . . . are defined as those actions which produce neither affirmative nor negative obligation.”8 Actions of this sort were not controlled by any moral law that limited the use of freedom; they were left to our own free choice (“whether I decide to walk about in my yard or sit still”). And yet, Kant added, it was wrong to suppose that morality did not pertain in some way to adiaphora, “for there is no denying that we exist under natural laws.”9 Like Pufendorf, Kant asserted that an action was good when it complied with law and bad when it violated law but, unlike the earlier author, he made room for adiaphora and permissive law in his account. Indifferent acts had a moral value only “in a negative sense,” he wrote, since they were neither commanded nor forbidden, but still an adequate classification of laws had to find a place for them. He accordingly divided the whole realm of law into commands (leges praeceptivae), prohibitions (leges prohibitivae), and permissions (leges permissivae). There had to be permissive law concerning indifferent things, Kant argued here, because all actions had to 7. Vorarbeiten zur Tugendlehre, Ak. 23, 385. Kant gave as one example the old doctrine, taught by Huguccio among others, that a starving person who took the property of another was not guilty of theft. 8. “Kant on the Metaphysics of Morals; Vigilantius’s Lecture Notes,” translated by P. Heath in P. Heath and J. B. Schneewind, in The Cambridge Edition of the Works of Immanuel Kant: Lectures on Ethics (Cambridge: Cambridge University Press, 1997), 276 (27, 512). 9. Ibid. He returned to the point in the Metaphysics of Morals at 209 (6, 409), “But that man can be called fantastically virtuous who allows nothing to be morally indifferent (adiaphoron).”

Kant: Permissive Law and Property  331 conform to law in some way. If the adiaphora were excluded, he noted, “the whole classification falls apart.”10 He added that it would be a “cruel restriction” if every human action was either commanded or forbidden. “It is morally indifferent, surely, what I eat, so long as it agrees with me.”11 Kant was reformulating here the old doctrine that natural law did indeed relate to all human actions but not in the sense of controlling them all. The law of nature also provided for a realm of human free choice. At this point the lecture moved on to a different way of understanding permissive law. So far it was clear that merely indifferent acts were lawfully permitted, but now Kant asked whether there could also be permissive laws that, in exceptional cases, allowed actions that were normally prohibited. For instance, if two sailors were in danger of drowning, was it permissible for the stronger one to push the weaker off a floating plank to save his own life? Kant noted that there were such exceptional provisions in human positive laws, but also addressed the “intricate question” of whether there could also be such permissive laws in accordance with natural law (leges permissivae secundum jus naturae). According to Vigilantius, Kant at first denied that this was the case but then went on to suggest that there might be such laws making exceptions, in a case of necessity, concerning acts that were normally prohibited. This led to an important distinction. Prohibitive laws might be “universal” and then there could be no exception to them, or they might be only “general,” covering the majority of cases but allowing for possible exceptions.12 Kant gave an example of the latter kind that seems to foreshadow some of the argument of the Doctrine of Right. There was a general rule that “might must not replace right.” But in a lawless state of nature where everyone followed their own will with no regard for the freedom of others, and people would not willingly give up their “brute freedom,” the only way for a legal order to emerge might be for one powerful man to assert his supremacy over all the rest and institute laws of his own choosing. So in that case “might replaced 10. Vigilantius’s Lecture Notes, 277 (27, 513). 11. Ibid., 277 (27, 513). 12. Ibid., 278 (27, 514).

332  Natural Law and German Enlightenment right” and, Kant wrote, “Here there is a natural law in effect to permit the force employed.”13 Kant finally returned to his example of the two drowning sailors. Here he explained that each of them was permitted to use force against the other in struggling for the disputed plank; but, if one succeeded in gaining possession of it, he acquired a right to it and the other had no right to dispossess him. Kant concluded by formulating an underlying maxim asserting that, “to institute a right, might precedes right in accordance with a permissive law.”14 The theme of permissive natural law was introduced again in the Perpetual Peace (1795) with an argument that a ruler might be allowed to tolerate for a time an unjust state of affairs. Kant first laid down the rule that one state could not be taken into the possession of another (because a state was a moral entity, not just a stretch of land); but then he added that when such a situation actually existed it could be accepted for a time until an effective remedy became available lest an imprudent attempt at a premature remedy defeat its own purpose.15 This led on to further reflections on permissive law and acquisition. Kant again raised the question whether, in addition to the commands and prohibitions of law, there could also be permissive laws (leges permissivae). Law as such, Kant first argued, necessitated some action; the idea of a law that was merely permissive seemed therefore to involve a contradiction in terms. He explained, however, that in the case under discussion the prohibitive (necessitating) law referred to future acts of acquisition, the permissive law to an existing state of possession which, although unrightful, was still possession in good faith in accordance with a permissive law of natural Right. Rea13. Ibid., 278–79 (27, 514–15). 14. Ibid., 280 (27, 516). In another discussion Kant raised the old issue of whether a permission of law could free from guilt or only from punishment. If a sailor pushed another off a plank that could support only one person he would act wrongfully according to Kant but would not be punished by human law. Kant held that he would not be “inculpable” but only “unpunishable.” See Gregor, Metaphysics of Morals, 60 (6, 236). 15. “Toward Perpetual Peace,” translated and edited by M. Gregor, in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Cambridge: Cambridge University Press, 1996), 321 (8, 348).

Kant: Permissive Law and Property  333 son itself, Kant concluded, required that a lex permissiva be included in any “systematic division” of law.16 Finally, Kant presented yet another discussion of permissive law in the introduction to the Metaphysics of Morals before embarking on the principal themes of that work. And here again he raised the issue of indifferent acts, though this time in a more skeptical fashion. He first wrote, “An act is permitted (erlaubt)(licitum) that is not contrary to obligation.”17 Then, a little further on, An action that is neither commanded nor prohibited is merely permitted (bloss erlaubt). Such an action is called morally indifferent (indifferens, adiaphoron, res merae facultatis). The question can be raised whether there are such actions and, if there are, whether there must be permissive laws (lex permissiva) . . . in order to account for someone’s being free to do or not do something as he pleases. If so, the authorization would not always have to do with an indifferent action (adiaphoron); for, considering the action in terms of moral laws, no special law would be required for it.18

This was an issue raised by Suarez, disputed between Pufendorf and Barbeyrac, discussed at length by Darjes, and finally reformulated by Achenwall. Granted that there are indifferent cases where I am free to act as I choose, is a permissive law needed to authorize such acts? In the last words of the quotation given above Kant seems to deny such a necessity and so to precisely contradict what he had asserted in the Vigilantius lecture. I take him to mean here that a merely indifferent act would not require a specific permissive law to justify it; but a permissive law would be needed to permit an act that was normally prohibited. This is the point in Kant’s argument where Hruschka discerned the direct influence of Achenwall, and when the two passages are set side by side—Achenwall’s Latin and Kant’s German—there can be no doubt that Kant was directly following the language of his predecessor. Hrushka saw a special significance in Kant’s use of the terms “permitted” (erlaubt) and “merely permitted” (bloss erlaubt) in the passag16. Ibid. 17. Gregor, Metaphysics of Morals, 49 (6, 222), Erlaubt is eine handlung (licitum) die der verbindlichkeit nicht entgegen sei.” 18. Ibid., 223, “Eine Handlung die weder geboten noch verboten ist, ist bloss erlaubt. . . .”

334  Natural Law and German Enlightenment es quoted above. He pointed out that Kant used the term erlaubt for Achenwall’s licitum, a term that Achenwall used for all allowed acts including those that were commanded, and bloss erlaubt for acts that were indifferent or merely permitted, for which Achenwall used the term permissum. Hruschka maintained further, (against Brandt and Flickschuh) that in the subsequent argument of the Doctrine of Right Kant used the idea of permissive law to refer only to the second kind of permission. To me, however, it seems that much apparent confusion in Kant’s argument arises from the fact that he moved from one meaning to the other in the course of his discussion.19 In any case it seems clear that, when Kant took up the problems of property ownership in this work, he had already formulated several different ways of understanding the idea of permissive law in his earlier writings and had not definitively opted for any one of them.

Property and Permissive Law In a broad sense, Kant’s whole philosophy of freedom might be seen as concerned with the role of permissive law in human life. Kant (like Aquinas in this) understood that laws were indeterminate; they prescribed rules to be followed rather than specific actions to be performed, and so left a space (latitudo) for human free choice. Discussion of such issues in the modern Kant literature can lead to complex questions concerning free will and the judgments of practical reason.20 But here I want to concentrate quite narrowly on Kant’s teaching concerning permissive law and the origin of property in the Doctrine of Right. In that work Kant set out to formulate a doctrine of property in which “abstraction is made from all spatial and temporal conditions.”21 The principles he deduced were meant to apply to anyone 19. Hruschka, “The Permissive Law of Practical Reason,” 58. “For Kant the permissive law of practical reason refers only to merely allowed actions. . . .” But see below n.64. 20. For some comment on these issues see the papers of Allen Wood and Onora O’Neill in Timmons, Kant’s Metaphysics of Morals:Interpretive Essays, edited by M. Timmons, 331–47. On latitude see Gregor, Metaphysics of Morals, 194 (6, 390). 21. Gregor, Metaphysics of Morals, 75 (6, 253).

Kant: Permissive Law and Property  335 “merely because and insofar as he is free and has practical reason.”22 The whole subsequent argument revolved around these concepts of practical reason and human freedom. Kant began by presenting some basic propositions and definitions, most of which had been formulated in his earlier critical works. Obligation, he wrote was “the necessity of a free action under a categorical imperative of reason.”23 And, as we saw, an action not contrary to obligation was called permitted or licit. This freedom of action was called a moral faculty (facultas moralis). According to Kant the only innate right inhering in all persons was a right to freedom defined as “independence from being coerced by another’s choice.”24 By virtue of this innate right all were free—but only insofar as their freedom could coexist with the freedom of all others. It was a significant limitation that would become of central importance in Kant’s later argument. A corresponding universal law of Right established the rule: “[S]o act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law.”25 External laws imposed by another evidently did limit one’s freedom. Kant therefore taught that a person was not rightfully subject to any laws except those that he gave to himself “alone or at least with others.”26 Such a situation, Kant held, could exist only in a civil society, united by a general will that could legislate for all.27 In applying his doctrine of freedom to the rights of individuals, Kant emphasized the licitness of a right holder’s use of coercive force against anyone who violated a right. The violator was using his freedom to encroach on the freedom of another; hence the force used against him was “a hindering of the hindrance to freedom” and so rightful.28 Kant even wrote that “Right and the authorization to use coercive force are one and the same thing.”29 When Kant turned to a specific discussion of property rights within this framework of ideas he began with a distinction between physical possession of a thing, which was relatively unproblematic, and “right22. Ibid., 44 (6, 216). 24. Ibid., 63 (6, 237). 26. Ibid., 50 (6, 223). 28. Ibid., 57 (6, 231).

23. Ibid., 48 (6, 222). 25. Ibid., 56 (6, 231). 27. Ibid., 77 (6, 256). 29. Ibid., 58 (6, 232).

336  Natural Law and German Enlightenment ful” or “intelligible” possession.30 If a person snatched away something I was holding, say an apple that I held in my hand, he would evidently be violating my sphere of personal freedom and I would have a right to resist him. But how could I rightfully coerce others who encroached on some object that I claimed as my own even though I was not physically holding or occupying it?31 On one level the answer seems obvious. An intruder violates my right if he enters my house against my will whether I am physically present there or not. But Kant posed the issue in a new way. The core problem within his framework of thought was to explain how such rightful possession could be consistent with his universal law of freedom. If I claimed something as my own, if I asserted a right to it and excluded others from it, then my action would evidently limit the freedom of all others with respect to the object of my choice. And this would apparently conflict with the law that we should not so act as to encroach on the freedom of others. Kant therefore had to explain how rightful possession was possible and how it could licitly be acquired. He addressed the first issue by laying down a “Postulate of Practical Reason with Regard to Right.” In framing this postulate Kant, like many of his predecessors, borrowed the phrase res nullius from classical Roman law where there was a distinction between property that belonged to no one (res nullius) and property that was owned in common. Roman law also declared quite simply that “What belongs to no one is conceded to an occupier by natural reason.”32 Kant’s subsequent argument might be seen as an extended commentary on this ancient doctrine. Certainly he offered a much more complex version of the same principle. His postulate declared, It is possible for me to have any external object of choice as mine, that is, a maxim by which . . . an object of choice would . . . have to belong to no one (res nullius) is contrary to Right. For an object of my choice is something that I have the physical power to use. If it were nevertheless absolutely not within my rightful power to make use of it, that is, if the use of it could not 30. Ibid., 68 (6, 245). Borrowing language from his earlier critical philosophy Kant also referred to the two kinds of possession as possessio phaenomenon and possessio noumenon. See 71 (6, 249). 31. Ibid., 70 (6, 247–48). 32. Digest, 41.1.3.

Kant: Permissive Law and Property  337 coexist with the freedom of everyone in accordance with a universal law (would be wrong) then freedom would be depriving itself of the use of its choice with regard to an object of choice, by putting usable objects beyond any possibility of being used.33

Kant sought to establish the validity of his postulate by arguing that its negation would involve self-contradiction. He tells us that usable things can be used and choosable things can be chosen. But if the outer freedom of everyone inhibited acts of free choice by each individual then there would be “a contradiction of outer freedom with itself.” Kant wrote, therefore, that we must presuppose a priori that things can be rightfully acquired without encroaching on the freedom of others. “It is therefore an a priori presupposition of practical reason to regard and treat any object of my choice as something which could objectively be mine or yours.”34 At this point Kant introduced his doctrine of permissive natural law or “permissive law of practical reason” to further explain the postulate. This Postulate can be called a permissive law (lex permissiva) of practical reason, which gives an authorization . . . to put all others under an obligation, which they would not otherwise have, to refrain from using certain objects of our choice because we have been the first to take them into our possession. Reason wills that this hold as a principle.35

Kant introduced this passage with the words, “This Postulate can be called a permissive law,” as if the permissive law was simply a reformulation of the postulate, but in fact it included a new principle. The postulate affirmed that it was possible for property to be acquired without encroaching on the freedom of others; the permissive law gave an authorization to impose an obligation on others by taking 33. Gregor, Metaphysics of Morals, 68–69 (6, 246). 34. Ibid. 35. Ibid., 69 (6, 247). Kant invoked a permissive law of practical reason in a different fashion in the Doctrine of Virtue in considering a question of sexual ethics. Here he referred to procreation as “nature’s end” and condemned “unnatural vice”; but then he considered the case of a married couple where one party was infertile (perhaps because of age). Sexual relations in such a case would seem to be “contrary to nature’s end.” Kant suggested, however, that there might be “a permissive law of morally practical reason, which . . . makes permitted something that is not in itself permitted (indulgently as it were).” See Ak.6, 426.

338  Natural Law and German Enlightenment possession of something and excluding others from it. This would require much further consideration as the argument continued. According to Kant, the rightful basis of the claim of a first occupant, his “title of possession,” was an original possession of all things in common.36 He envisaged an original state of nature like that of Hobbes in that everyone had a right to everything. Kant did not write of a “war of all against all” but he did indicate that the wills of individuals would inevitably be opposed to one another.37 He distinguished carefully between this “original community” (what Pufendorf had called a “negative community”) and a “primitive community” where a group of people held property communally and private possessions came into existence, not by acts of individual will, but by the consent, tacit or expressed of the whole community. Like Achenwall, Kant dismissed such accounts as historical fictions, but more importantly he held that even the hypothesis of such a community could not adequately explain the origin of private property. A state of communal ownership, he argued, could exist only if individuals had given up their individual possessions to the group, but Kant’s purpose was to explain how the private possessions could have come into existence in the first place.38 Kant’s “original community” was not envisaged as a historical reality but as an idea of pure practical reason. He was discussing the origins of property rights as part of “a system of a priori knowledge from concepts alone.” A necessary first step was to conceive of a hypothetical state of affairs without private property, a state of nature. But the state of nature had to be such that property rights and civil society could emerge out of it. Evidently the argument is not vulnerable to criticism on historical grounds; the relevant question is whether it achieves coherence. To do this Kant needed to cope with an apparent tension in his argument between an assertion of universal freedom and an appeal to a permissive natural law that allowed an individual to impose an obligation on others. 36. Ibid., 72 (6, 251). This passage was misplaced in the standard edition but there seems no reason to doubt that it formed part of Kant’s original text. 37. Ibid., 87 (6, 267). 38. Ibid., 73 (6, 251).

Kant: Permissive Law and Property  339

Problems and Paradoxes In the course of his discussion on the origin of property Kant frequently maintained that rightful possession could proceed only from a united general will in a civil condition; but he also maintained that original acquisition—on which all future rightful possession depended—must necessarily occur through a unilateral will in a lawless state of nature. His argument, therefore, seems to proceed through a series of contradictory assertions. Kant described rightful possession as “a giving of law that holds for everyone.” Accordingly, he wrote, “A unilateral will cannot serve as a coercive law for everyone as regards possession . . . since that would infringe upon freedom.”39 But also, “Original acquisition . . . is the result only of a unilateral choice.”40 At another point he tells us that, “The will that a thing . . . be mine . . . in original acquisition can only be unilateral.”41 But also, By my unilateral choice I cannot bind another to refrain from using a thing . . . I can do this only through the united choice of all who possess in common.42

To understand further Kant’s doctrine and its difficulties we need to consider how he developed both sides of the argument in explaining the transition from a state of nature to a civil condition. Kant’s argument for acquisition through a united choice of all began by envisaging an original condition where a group of persons lived in proximity to one another, each endowed with innate freedom and an individual will, but with no external law to prevent them encroaching on each other’s freedom. A people could emerge from this lawless condition by entering into an original contract with one another whereby everyone, each and all, gave up their “wild and lawless” freedom to find a new freedom in accepting the laws of a civil society.43 Only in such a society, Kant maintained, could the freedom of each coexist with the freedom of all. In describing how this could come about, Kant explained that, once a civil society was formed by the original contract, it was guided by a united 39. Ibid., 77 (6, 256). 40. Ibid., 81 (6, 259). 41. Ibid., 84 (6, 263). 42. Ibid., 82 (6, 261). 43. Ibid., 124 (6, 312); 127 (6.315–16).

340  Natural Law and German Enlightenment general will, something different from the wills of all the individual citizens (an idea borrowed from Rousseau but with some modifications). This general will was the source of laws and as such itself could do no wrong.44 In conforming to its laws the citizens could find a new kind of freedom, safe from the violence and insecurities of the state of nature, because the laws themselves stemmed from their own law-giving will. They were all colegislators. And individual properties could be instituted only in accordance with such a united will because only such a will could assure everyone that the property of each would be respected by all. So it is only a will putting everyone under obligation, hence only a general (common) and powerful will, that can provide everyone this assurance. But the condition of being under a general external (i.e. public) lawgiving accompanied with power is the civil condition. So only in the civil condition can something be mine or yours.45

There was, however, another whole side to Kant’s argument. Immediately after the paragraph just quoted he wrote that the function of a civil society was not to institute new rights but only to secure ones that already existed. A civil condition is just the rightful condition by which what belongs to each is only secured and not actually constituted and determined. . . . Prior to a civil constitution external objects that are mine or yours must be possible.46

Kant was not merely asserting that some property rights happened to exist in a state of nature before a civil condition was instituted. Rather it was essential to his argument that such rights had to exist. This necessity emerged from the author’s discussion of the problem of original acquisition, the “hardest of all to solve,” according to Kant, and from the doctrine of first occupancy (itself an ancient principle of Roman law) that he introduced to solve the problem. In Kant’s definition, “acquisition is original that is not derived 44. Ibid., 125 (6,313–14). 45. Ibid., 77 (6, 256). See also 84 (6, 263), “For only in accordance with this principle of the will is it possible for the free choice of each to accord with the freedom of all, and therefore possible for there to be any right, and so too possible for any external object to be mine or yours.” 46. Ibid., 78 (6, 256).

Kant: Permissive Law and Property  341 from what is another’s.”47 The first original possession, instituted by nature itself before humans had established any acquired rights, was the “negative” possession in common. Possession asserted by a first occupant in this original condition (something allowed by Kant’s permissive law) was also original possession in that, in accordance with his definition of the term, it was not derived from anyone else. Moreover acquisition was an act of choice and choice could proceed only from a unilateral will. It could not, therefore, be derived from the omnilateral will that instituted a civil society but must precede it.48 At a later point this was further explained. Since the civil condition secured existing rights, it followed that, “If no acquisition were recognized as rightful even in a provisional way prior to entering a civil condition, the civil condition itself would be impossible.”49 We seem to have reached an impasse. Property rights can exist only in a civil society; such rights must exist before a civil society can be formed. The word “provisional” is important in the above passage. Insofar as Kant explained at all the anomalies in his argument it was by qualifying the rights that individuals acquired by original acquisition in two ways—they were reciprocal and they were provisional. But Kant’s treatment of both qualifications was problematic; it is not clear that they really make possible a harmonization of all the dissonances in his argument. The doctrine of reciprocity asserted that, if I put others under an obligation by claiming some property as my own, I must acknowledge that I am under a similar obligation to respect any property they acquire; but this obligation becomes effective only if they all give me a similar assurance.50 Kant noted, in a passage already quoted, that such an assurance required a united general will; the doctrine of reciprocity does not, however, ensure any such outcome. A difficulty here is that it takes two to reciprocate. And Kant made it plain that the willingness of a first occupant to recognize the claims of others would not in itself inspire a general agreement; rather his own 47. Ibid., 80 (6, 258). 49. Ibid., 124 (6, 312).

48. Ibid., 81 (6, 259). 50. Ibid., 77 (6, 255–56).

342  Natural Law and German Enlightenment claim would at once be a cause of conflict. Kant was not merely indicating that a first occupant might have some recalcitrant neighbors. One of the premises of his argument assumed that wills in a state of nature would necessarily conflict with one another (“The choice of one is unavoidably opposed by nature to that of another”).51 In such a condition the claim of a first occupant could precipitate a struggle where rival unilateral wills contended with one another and neither was endowed with lawful force.52 Given such a situation the outcome would depend only on which side could muster more physical power. In a passage like this Kant seems to be simply relying on his earlier teaching that, to institute a right, might precedes right. In spite of these considerations Kant concluded here that the first occupant at least had the advantage that his possession was compatible with the introduction of a civil condition. It accorded with “the possibility of such a condition” and so was “provisionally rightful.” The last words refer to Kant’s second principal way of justifying his doctrine of acquisition, along with the argument concerning reciprocity. As we have seen, Kant argued that rights to property must exist before a civil condition could come into existence, and a civil condition must exist before there could be rights to property. The idea of a provisional right of acquisition might perhaps explain the apparent contradiction. Kant accordingly argued that, in the acquisition of property, two kinds of rights were involved, provisional rights in a state of nature and conclusive rights in a civil condition.53 But, again, there was a difficulty in the argument. In Kant’s account there was no significant difference between the two kinds of rights except that, in a civil condition, they were held more securely. If Kant had argued that a first occupant in a state of nature acquired a sort of prima facie claim that could become a real right against others in the civil condition (for then a general will could authorize this), his argument might have proceeded with less difficulty. 51. Ibid., 87 (6, 267). 52. Ibid., 78 (6, 257), “The will of all others except for himself . . . is merely unilateral and hence has as little lawful force in denying him possession as he has in asserting it.” 53. Ibid., 85 (6,264), “Hence original acquisition can be only provisional. Conclusive acquisition takes place only in the civil condition.”

Kant: Permissive Law and Property  343 But instead he insisted that provisional acquisition was “true acquisition.”54 It authorized an occupant of property to coerce others. All original acquisition, the source of all future property rights, was provisional acquisition and this original acquisition had “all the effects of acquisition in accordance with Right.”55 It would seem, therefore, that the arguments against acquiring property by a unilateral will must apply also to provisional acquisition. Matthias Kaufman has pointed out that Kant was a great admirer of both Adam Smith and Jean-Jacques Rousseau and that both of them influenced the theory of property in the Doctrine of Right. We find in Kant’s work, therefore, an uneasy mixture of arguments that seem to favor liberal individualism (when he wrote of original acquisition) and others that rely on Rousseau’s collective general will (when he considered property in a civil society).56 Perhaps Kant was trying to find a middle way with his doctrine of provisional possession. But the specific language he used is important. He referred to provisionally acquired property as “possession in anticipation of and preparation for the civil condition” or possession by one who “is ready for it” or “possession which therefore accords with the possibility of such a condition.”57 Or it could be possession “in conformity with the Idea of a civil constitution, that is with a view to it . . . but prior to its realization.”58 All these phrases indicate that the civil condition had not yet come to exist when provisional acquisition occurred. And Kant confirmed this. The last passage just quoted continued with the words, “But the condition in which the 54. Ibid., 85 (6, 264). 55. Ibid., 88 (6, 267). 56. M. Kaufman, “Was erlaubt das Erlaubnisgesetze—und wozu braucht es Kant?” Jahrbuch für Recht und Ethik 13 (2005): 195–219. Kaufman pointed out that Kant did not distinguish so sharply as Rousseau between the general will and the will of all. He cites Kant’s Reflexionen zur Rechtsphilosophie, Ak. 19, 491, “Der Wille aller ist jederzeit gut. Der Willen der einzelnen mag noch so böse seyn.” Kaufman also gave many examples of references to permissive law in earlier writings. This part of his article covers much the same ground as my paper, “Permissive Natural Law and Property: Gratian to Kant,” Journal of the History of Ideas (2001): 381–99. 57. These phrases all occur at Gregor, Metaphysics of Morals, 78 (6, 256–57). 58. Ibid., 85 (6, 264).

344  Natural Law and German Enlightenment will of all is actually united for giving law is the civil condition.” His argument about provisional acquisition leads only to a reformulation of the original paradox. Individual acquisition of anything must not encroach on the freedom of others; this situation can exist only through the force of a general will in a civil society; but original acquisition must proceed from a unilateral will before such a society can be instituted.

Force and Freedom A further paradox arises from Kant’s persistent willingness to accept, even emphasize, the idea that sheer force may be necessary for the establishment of a civil order and so for maximizing freedom. In the Vigilantius lecture Kant formulated the maxim that “to institute a right might precedes right in accordance with a permissive law.”59 Then, in the Doctrine of Right, he reached the same conclusion by way of a more complex argument that started out from his Postulate of Practical Reason and the permissive natural law associated with it. These proved to be versatile concepts. The postulate was introduced in order to establish a freedom to acquire external objects by one’s own choice. But the permissive law invoked here did not merely affirm a freedom of choice in indifferent matters; it conveyed a right to bind others by one’s choice and to assert the right with coercive force if necessary. As the argument proceeded, however, the meanings of the postulate and permissive law changed. The postulate was next presented, not as affirming an individual freedom, but as an authorization to fulfill a universal duty. It now declared that “it is a duty of Right to act toward others so that what is external (usable) could always be someone’s.”60 But rightful possession that did not encroach on others’ freedom required a civil order. It followed, therefore, that entering into a civil condition was also a duty. “A civil constitution . . . is still objectively necessary, that is, necessary as a duty.”61 And finally, 59. Vigilantius Lecture, 280 (27, 516). See above n.14. 60. Gregor, Metaphysics of Morals, 74 (6, 252). 61. Ibid., 85 (6, 264).

Kant: Permissive Law and Property  345 because this was a duty, anyone who refused to enter a civil condition could be coerced into doing so. [E]ach is justified in using that coercion which is necessary if men are to leave the state of nature and enter the condition.62

This was Rousseau’s famous, much-debated paradox, the idea that we can be forced to be free, which one author called “particularly irritating.”63 Kant accepted it uncritically and with apparent equanimity. The permissive law that had originally authorized coercive force to defend one’s own property now justified coercion of everyone else to make them enter a civil society. In another version of the argument Kant wrote that provisional acquisition needed and gained the favor of a permissive law but only insofar as others consented. Then he added that if others refused to consent and enter a civil condition the provisional acquisition carried with it all the effects of acquisition, which of course included permission to coerce others.64 Kant presented another argument emphasizing sheer force when he asked how far the authorization to take possession of a piece of land could extend. In replying, the author did not offer any equitable considerations such as Locke’s requirement to leave “as much and as good” for others. He wrote simply that the authorization covered as much land as the appropriator could defend. This was in accord with his emphasis on the right of a possessor to use coercive force, but it implied that a sufficiently powerful man could seize all the best land for himself. Kant added that if a person or state acquired land on a seashore and claimed ownership of the neighboring sea, cannon could be used to drive off intruders.65 To support these 62. Ibid. See also 77 (6, 256), “[T]he subject must also be permitted to constrain everyone else . . . to enter along with him into a civil constitution.” 63. The phrase is from G. H. Sabine, A History of Political Theory (London: H. Holt and company, 1937), 590. 64. Ibid., 88 (6, 267). Kant wrote here that “Provisional acquisition needs and gains the favor of a law (lex permissiva),” but also that “to proceed in accordance with the principle of external acquisition is a duty” and that, therefore, the possessor had a rightful power to bind others to recognize his acquisition as valid even though it was one-sided. Kant cannot have used lex permissiva here in the sense of bloss erlaubt. A mere permission, a mere absence of command and prohibition, could not impose a duty or confer a right. See n.19 above. 65. Ibid., 84 (6, 269).

346  Natural Law and German Enlightenment arguments Kant offered only a singularly inapt metaphor. It was “as if the land were to say, if you cannot protect me you cannot command me.”66 A little further on he complained about “the tacit prevalent deception of personifying things.” In a final comment on coercive power and the state of nature, Kant wrote again that “each may impel the other to leave this state and enter into a rightful condition.” Then he explained that in the civil condition everyone was free because “he obeyed no other law than that to which he has given his consent” and quoted the maxim, volenti non fit iniuria, “no injury is done to one who is willing.”67 But according to Kant not all those affected were willing; some had been coerced. Kant’s argument began with a definition of freedom as independence from being coerced by another’s choice and ended with people being forced to be free. Mary Gregor’s remark quoted earlier indicates that some scholars have always been aware of the difficulties in Kant’s argument.68 The ones we have noted include these. A person cannot bind others by his unilateral choice, and he can so bind them. Acquisition of property rights requires a general will, but a general will cannot come into existence until such rights have been acquired. Freedom means absence of coercion but people can be coerced into being free.

Tradition and Innovation A historian who encountered Kant’s work for the first time might experience an odd mixture of easy familiarity and utter strangeness. All the “bits and pieces” of earlier doctrines are there. Innumerable earlier authors had envisaged a state of nature where all things were common. More specifically, in many earlier writings—including the work of Achenwall that Kant used as a textbook—one can read of permissive natural law and the right of first occupancy. But in Kant’s work the old doctrines were set in the context of a radically new 66. Ibid., 85–86 (6, 265). 67. Ibid., 124 (6, 312); 125 (6, 313–14). 68. See, e.g., H.-G. Deggau, Die Aporien der Rechtslehre Kants (Stuttgart: Frommen-Holzboog, 1983).

Kant: Permissive Law and Property  347 philosophy. In addressing this issue my purpose is not to seek out “sources” of Kant’s thought in the older writings; it is rather to suggest that a consideration of the tensions between old and new in his work might help us to better understand the complexities that we encounter in it. All the older theories are open to criticism, most obviously because their premises can be challenged. (From Kant’s point of view their authors were still sunk in the dogmatic slumbers from which Hume had awakened Kant himself.) But they do not give rise to the same problems and paradoxes that we encountered in Kant’s work. One must suppose that Kant, a great philosopher, had some coherent doctrine in mind when he wrote the Doctrine of Right. The problem is to understand why he presented it in such a complex and contorted fashion. The answer lies in the intrinsic nature of Kant’s enterprise. Earlier doctrines of property had commonly been based on considerations of utility or necessity. There was a strong streak of consequentialism in them even when they were presented within theories of natural law. They typically favored private possession because common property would be poorly managed or would lead to dissensions and strife among the co-owners. But Kant had eschewed all such arguments. He knew that individual property rights actually existed and did not doubt that they existed lawfully. The task he set himself was to explore the metaphysical principles that could render such a state of affairs intelligible. But, as he pursued this purpose, a persistent problem arose. The old doctrines that he deployed could not be accommodated easily within the framework of his new philosophy. And this was a major cause of the anomalies one can find in his work. Kant is famed as a philosopher of human freedom, self-legislation, and individual autonomy. It was altogether logical and fitting that he should frame a “universal law of Right” that forbade us to encroach on the freedom of others. But earlier thinkers were not restrained by any such requirement. They knew that many of our everyday acts do limit the freedom of others without doing them an injury. To take an ancient example: When I take a seat at a theater I limit the freedom

348  Natural Law and German Enlightenment of others to choose the same seat.69 Kant’s predecessors could take it for granted that coercive laws limited freedom; the idea was built into the legal definition of freedom itself.70 They saw no need to appeal to a murky concept of general will in order to explain that people were free even when they were being constrained. The universal law of Right had deep roots in Kant’s philosophy of freedom; but, by combining it with the then-fashionable idea of a general will, he set parameters within which it was very difficult to conduct a coherent argument. A result is that, at every point where Kant’s discussion seems ambivalent or aporistic, we encounter a tension between an old doctrine and the philosophy in which it was embedded. If we return to our starting point and consider the notion of permissive natural law itself, we find that, for centuries past the idea had been deployed in many different ways. Natural law could permit things that positive human law prohibited and also a whole range of indifferent acts that natural law allowed but that positive law could regulate. And natural law could prohibit things that positive law permitted—such things as usury and prostitution were mentioned. But Kant’s argument set up an awkward antinomy in which natural law seems to contradict itself by both prohibiting and permitting the same thing. The author defined freedom as independence from coercion by other persons and, as we saw, formulated a corresponding “universal law” forbidding us to encroach on others’ freedom. In the Vigilantius lecture he asserted that there could be no exception to such universal laws. But in the Doctrine of Right he presented a permissive law of practical reason that allowed us to so encroach by imposing on others “an obligation that they otherwise would not have.” The argu69. John Simmons gave several such examples. See his “Original-Acquisition Justifications of Property,” in Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 197–221, 220. Ripstein objected that such examples do not refer to acquisition of property since that “places others under an obligation” (Force and Freedom, 153). But some of Simmons’s examples do refer to such acquisition. Kant of course understood that coercive laws limit particular freedoms but he held that they were consistent with the more fundamental freedom of sharing in the general will. 70. Institutes, 1.3.1, “Freedom is the natural power of doing what one pleases except what is prevented by force or law.”

Kant: Permissive Law and Property  349 ment seems to lead to the impasse that Kant sought to avoid, “a conflict of outer freedom with itself.” More difficulties arise if we consider the particular ways in which acquisition of property had been justified in earlier discussions. There were three principal lines of argument, all of which appear at some point in Kant’s account. Property might have been originally acquired by brute force, or by the natural right of a first occupant, or by common consent.71 We can consider them in turn. The idea that property could be acquired by mere force is as old as the argument of Thrasymachus that might is right, justice is what best suits the strongest. In medieval sources the founding tyrant was often identified with Nimrod, the “mighty hunter” of Genesis 10. But in this tradition the legitimacy of the institution was not derived from the act of the original founder but from the subsequent consent of the community to the structures of property rights that eventually emerged. As one medieval author wrote, “Nimrod sinned in possessing property as his own . . . but today it is permitted to have property . . . by common consent.”72 In this argument there was no ambiguity about the wickedness of the first usurper; but Kant’s position was more ambivalent. His need to combine a unilateral will, forcefully exercised, with a general will expressing a universal consensus led to two disparate lines of argument that run through his work. If the act of original acquisition was inherently rightful because it was in accord with the general will then no special permissive law would have been needed. If it was inherently wrongful because it encroached on the freedom of others but was excused by a permissive law because it was done “in preparation for” a civil condition, then Kant’s argument seems perilously close to an assertion that evil may be done so that good can come of it, a view that Kant of course rejected. He dismissed it as mere “Jesuitism.”73 The second major way of justifying the acquisition of private property according to earlier teachings, the idea that first occupancy 71. Locke’s labor theory was an important variation of the argument from natural right but Kant dismissed it as hardly worthy of notice, See Gregor, Metaphysics of Morals, 89 (6, 268–69). 72. Ricardus Anglicus (c.1190) in Weigand, Naturrechtslehre, 338. 73. Gregor, Metaphysics of Morals, 86 (6, 266).

350  Natural Law and German Enlightenment conferred a natural right, was embedded in the texts of ancient Roman law—“What belongs to no one is conceded to an occupier by natural reason,” and “The ownership of things began from natural possession.”74 For centuries these assertions seemed unproblematic. The medieval civil lawyers who commented on them saw no problem in their teaching. The canonists did see a problem in that individual ownership seemed to conflict with their texts asserting that, according to natural law, all things were common; but they resolved the issue by arguing that the natural law involved here was merely permissive. Once that was conceded they saw no difficulty in defending original acquisition by quoting the Roman law maxims. That was precisely the argument presented by Huguccio in the passage quoted earlier in this chapter. However, from the time of Suarez onward, jurists and political theorists perceived a problem that would be important in the argument of Kant. How could a merely permissive law confer a right on a first occupant that imposed an obligation on others? In the century before Kant, authors who considered the question, Barbeyrac and Burlamaqui for instance, explained that a permissive law could express the will of a sovereign legislator just as effectively as a precept or prohibition; and, where natural law was concerned, the ultimate legislator was God. If, then, a legislator willed that his permissions not be infringed, his permissive law obliged others not to interfere with them. But in Kant’s version of permissive law there was no legislator but reason. (“Reason wills that this hold.”)75 And the rational will that willed that we be permitted to impose an obligation on others also willed that we not encroach on their freedom. Here again, Kant was addressing an old problem; and, again, his predecessors who were not constrained by Kant’s philosophical premises were able to discuss the problem without encountering the difficulties that arose in his argument. The final way in which property could be rightfully acquired was its institution by common consent, a doctrine that Kant reformulated in his own way. In earlier teachings the consent might be expressed in different ways, ranging from a formal agreement to mere tacit ac74. Digest, 41.1.3, 41.2.1. 75. Gregor, Metaphysics of Morals, 69 (6, 247).

Kant: Permissive Law and Property  351 quiescence. Vitoria, for instance, described several possibilities. Adam might have made the first division among his sons either by virtue of his paternal power alone or with the consent of his sons. The people might have agreed to institute a ruler to make the division, or they might have assembled together and decided among themselves how things should be apportioned.76 Closer to Kant’s time, the need for consent was summed up in few crisp phrases of Pufendorf. “Things are of no use unless at least their fruits can be appropriated.” Ownership would be impossible “if others can take what we have already by our own act selected for our own use.” And, finally, completing the argument, “It is impossible to conceive how a mere corporeal act of one person can prejudice the faculty of others without consent.”77 Achenwall had sharply distinguished between common consent and first occupancy as sources of a right to property, but the two things are not really incompatible. Both Grotius and Pufendorf suggested that, originally, a general agreement, perhaps a tacit one, might have recognized the right of a first occupant. Vitoria, who had earlier presented a similar argument, explained that such a tacit consent would be expressed in deeds rather than in words. Kant too had a doctrine of consent to first occupancy, but a very different one. In earlier theories, although the consent might be merely tacit, it was conceived of as expressing a real agreement. In Kant’s doctrine there was no actual agreement when a first occupant took something into his possession. Kant assumed that the act of the occupant would be violently resisted by his neighbors; the consensus rested only in a general will which did not exist but which, it was supposed, the occupant would help to bring into existence. Another way in which Kant deployed the idea of common consent was in his account of the origin of government in a state of nature, and here again he was reformulating an earlier tradition of 76. On Vitoria’s argument, which also included a doctrine of permissive natural law, see Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625 (Grand Rapids, Mich.: Eerdmans, 1997), 263–64. 77. These phrases are cited by P. Garnsey, Thinking about Property: From Antiquity to the Age of Enlightenment (Cambridge: Cambridge University Press, 2007), citing Pufendorf, De iure naturae, 4.4.5.

352  Natural Law and German Enlightenment thought. Among his predecessors, Suarez, like Rousseau and Kant in a later age, understood that a mere aggregate of separate persons could not function as a political community; he maintained, accordingly, that the separate individuals had first to come together and unanimously agree to unite themselves “by will and common consent” into a corporate community or body politic. Once the new corporate political society was formed it could establish a government for itself, choosing between several possible forms.78 A similar argument was presented by Pufendorf, with his series of compacts, and by Locke who repeatedly argued that a group of people had to “incorporate” before they could institute a government. Much of this seems to parallel Kant’s doctrine of individuals in a state of nature coming together to form a civil society by common consent. The important difference, apart from the fact that in Kant the consent could be coerced, was that, in the earlier doctrine, the consent of the individuals who formed a political society did not bring into existence a new entity with a will of its own, a general will different from the wills of individual members. A decision of the community, once one had been instituted, was not an expression of such a mysterious general will, indefinable but infallible, but simply the result of some procedure, usually the vote of a majority, that was accepted because it had been agreed on by a consensus of all the individuals who united together when the community was first formed. Earlier thinkers, including even an individualist like Locke, would often use old organic metaphors when referring to the body politic, but they understood that they were metaphors. For medieval jurists a corporate body was not a real person with a real will but a corpus fictum, a fiction or artifact of law.79 Kant could not be content with such a relatively straightforward 78. On the views of Suarez discussed here see Tierney, Idea of Natural Rights, 306–12. 79. This whole question of holism and individualism in medieval and early modern thought is considered in more detail in Tierney, “Corporatism, Individualism, and Consent. Locke and Premodern Thought,” in Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, edited by K. Pennington and M. H. Eichbauer (Farnham, U.K.: Ashgate Publishing Limited, 2011) 49–72.

Kant: Permissive Law and Property  353 doctrine. His argument was constrained by the need to reconcile the coercive force of a unilateral will with the universal law against encroaching on the freedom of others. To achieve this he introduced the notion of a general will representing a universal consensus, but he had to deploy it in a particularly obscure fashion. Kant’s general will was a sort of abstract entity that hovered in the background of humanity in a state of nature, ensuring, even before it actually came to exist in a civil condition, that the unilateral will of a first occupant would also express “the united choice of all.” This led to the various paradoxes we have considered. Here again, it proved difficult to assimilate elements of earlier doctrines of consent within the parameters of Kant’s philosophy. Kant was reversing the words of scripture and pouring old wine into new wineskins, but the results could be equally destructive. In considering such criticisms, we must bear in mind that they are directed only at one section of one of Kant’s lesser and less admired works. We must also recognize that Kant did not present his account of an original society and the origin of property as a historical narrative of events that happened in space and time. As Kant explained more clearly in Theory and Practice his depiction of these things served rather as a kind of template against which one could judge the value of legislation in real existing societies. But, even allowing for all this, when one tries to tease out the implications of Kant’s teaching on permissive natural law, the difficulties that emerge for a reader are challenging, if not daunting. Ultimately, the difficulties arose from the very originality of Kant’s mode of arguing. Earlier thinkers had typically started out, explicitly or implicitly, from an understanding of human nature shaped by the pervasive Christian tradition of previous centuries. They usually saw human beings as sinful, frail, self-interested, and yet capable of moral discernment and of working together to create institutions that could mitigate the effects of such tendencies. And of course Kant himself was not just an embodied intelligence. He was a German Protestant, brought up in a Pietist household, and he had a similar view of human nature. But, by a sort of self-denying ordinance, he excluded any consideration of such human attitudes and inclina-

354  Natural Law and German Enlightenment tions from the Doctrine of Right. Kant was concerned to avoid Hume’s objection that we cannot derive norms from empirical facts. He accordingly wrote that “A metaphysics of morals cannot be based upon anthropology.” Kant could not, therefore, appeal to human needs and wants or to human experience in constructing his doctrine. Any attempt to derive moral principles from experience, he wrote, “would run the risk of the grossest and most pernicious errors.” So he had to frame principles that would apply to anyone “without taking account of his inclinations merely because he is free and has practical reason.”80 But the attempt to construct such an argument led to the various anomalies that we have considered, and perhaps inevitably so. It may be that one cannot base a doctrine of property on pure abstract reason and that the outcome of Kant’s argument was really determined, not by his metaphysical reasoning, but by the anthropological presuppositions that he could not and would not overtly introduce into his work. If we could really imagine a race of creatures endowed with reason and free will but with no other human attributes or inclinations, it would hardly be possible to determine how such alien entities might choose to distribute property among themselves (if at all). Kant had set himself a Sisyphean task. His work can be seen as a major innovation in philosophy but also as a last chapter in the history of the particular tradition of natural law that we have been pursuing. 80. Gregor, Metaphysics of Morals, 44–45, (6, 216–17)

17

Afterword

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 humankind. In the political sphere different ideas became dominant, Marxism for socialists, utilitarianism for liberals, and for some others a new sort of romantic nationalism with a streak of irrationality in it. Old-fashioned natural law survived only as a rather recondite area of Roman Catholic thought. In the years after World War II, mainly as a reaction against the wartime atrocities of the Nazis, a significant revival of natural law thinking occurred. But it was focused primarily on one side of the tradition, the idea of natural rights (now called human rights), and the revival did not lead on to any renewed interest in the earlier tradition of permissive natural law. That tradition, if noticed at all, seemed a mere dead end of history.

 

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356  Afterword It is not that issues related to the idea have vanished from modern thought. A flourishing branch of modern logic deals with obligation and permission. Modern moral philosophers have again become interested in problems concerning supererogation and suberogation, the counsels and concessions of the medievals. And tensions and occasional conflicts between what is morally permissible or what is legally allowed, things that the canonists discussed in terms of ius and lex, are always with us; but they are not nowadays discussed in the language of permissive natural law. Even modern theorists who seek to rehabilitate or reformulate the older ways of thinking about natural law have shown no interest in that particular aspect of the tradition. And yet large areas of their discourse deal with questions of permissibility—with what is permissible in the conduct of modern warfare or in the expression of human sexuality or in the preservation of human life. One might reasonably ask not only why medieval and early modern people chose so often to invoke the idea of permissive natural law, but also why modern theorists have generally chosen to neglect it. In any case, such modern considerations are not the most important ones. The primary task of a historian, whatever else he or she may seek to achieve, is to understand a past age for its own sake in its own terms. From that point of view a “dead end” of history may sometimes be seen as an illuminating aspect of the intellectual life of a particular culture. And that is indeed the case with the idea of permissive natural law. The idea should be important to us as historians because it was important to them, the numerous scholars of a past age who made use of it in shaping their own structures of thought. Hobbes wrote simply, “Law is a fetter.” But natural law was conceived of as a law of liberty—“By natural law all were born free.”1 And for generations of medieval and early modern thinkers the idea of permissive natural law helped to explain how an allencompassing system of natural law could include an affirmation of human freedom. A primary function of this permissive law was to authorize a realm 1. Digest, 1.1.4.

Afterword  357 of human free choice in “indifferent” matters, but this did not mean that the law referred only to trivial affairs. The medieval idea of indifference was quite complex. It could apply to life-changing choices for individuals and to fundamental decisions concerning the institution of property and of government for communities. And among the indifferent acts there were gradations of merit that called for different kinds of permission. From Hugguccio to Suarez to Kant many ways of classifying the different kinds were propounded along with their various effects. Permission could be positive or negative, perfect or imperfect. It could free from guilt or merely remit some temporal penalty. As I noted at the outset, one cannot present the history of permissive natural law as a single grand narrative, one great story. Instead it is made up of many smaller stories. Every century produced its own problems and its own responses. The medieval canonists found the idea of permissive natural law a valuable tool in their continuing task of shaping “a concord of discordant canons.” Ockham used the idea both to defend Franciscan poverty and to attack the pretensions of the contemporary popes. For Hooker it helped to justify the ritual practices of the Anglican church. Selden thought it was necessary to ensure the inviolability of contracts. Grotius deployed the idea in various ways—both to assert natural rights and to affirm the power of civil government, and of course to explain in detail what natural law could permit in the conduct of warfare. Finally, from the age of Suarez and Grotius onward, the widespread acceptance of the idea that all law imposed obligation raised new problems that continued to be debated until the end of our period. The idea of permissive natural law was protean in the sense that it was expounded by thinkers who belonged to various schools of philosophy. One cannot group those who accepted the idea and those who questioned it as adherents of one or another philosophical tradition, nominalists on one side and realists on the other, voluntarists here and rationalists there. Hooker accepted much of Aquinas’s system of thought but Aquinas excluded the idea from his teaching on natural law and Hooker emphasized it. Selden and Pufendorf were both voluntarists but Selden favored the idea of permissive natural law and Pufendorf resisted it. Wolff was a rationalist and Selden

358  Afterword a voluntarist but they both adopted the idea into their systems of thought. Each author seems to have traced his own path through the world of available ideas, some old some new, guided by his own intuitions and predilections and by the circumstances of his own life. As always, it seems, my theme of permissive natural law does not lend itself to presentation as a neat and tidy story, not even a story about competing philosophies. But this need not be seen as a regrettable outcome; it may serve to remind us that all of history is shaped by contingencies. Throughout the period we have considered the Ten Commandments were commonly regarded as a sort of transcript of the principles of natural law. It is tempting, therefore, to leave the last word to a perceptive comment on the commandments by G. K. Chesterton. He pointed out that the negative commands of the law, with their repeated Thou shalt not, did not really form a grim and restrictive code, but were rather an economical way of defining a broad area of human freedom and permissible behavior. “It is shorter to state the things forbidden than the things permitted: precisely because most things are permitted and only a few things are forbidden.” But the insight that Chesterton expressed in his witty way should not really be seen as an endpoint but as a permanent feature of the tradition of natural law that we have been considering. Human nature too abhors a vacuum, and generations of scholars hastened to fill the enticing space between command and prohibition—a realm of indifferent things, the stuff of everyday life—with their questions and speculations. Perhaps it would be most fitting to leave the last word here to the ancient jurist who wrote some of the first words that initiated the whole discussion. “The force of law is to command, forbid, permit, punish.”2 2. Digest, 1.3.7.

Selected Bibliography

Primary Abelard, Peter. Abailard’s Ethics. Translated by J. R. McCallum. Oxford: Basil Blackwell, 1935. Achenwall, Gottfried. Prolegomena iuris naturalis. Göttingen: Sumptibus Victorini Bossiegelli, 1781. Albertus Magnus. De bono. Vol. 28 of Sancti doctoris ecclesiae Albertis Magni Ordinis Fratrum Praedicatorum Episcopi opera omnia. Edited by H. Kühle, et al. Monasterii Westfalorum: Aschendorff, 1951. Andreae, Johannes. Ioannis Andreae in quinque Decretalium libros novella commentaria. Venice, 1581. Reprinted Turin: Bottega d’Erasmo, 1963. With an Introduction by Stephan Kuttner. ———. Ioannis Andreae . . . in titulum De regulis iuris novella commentaria. Venice: Apud Franciscum Franciscium, 1581. Aquinas, Thomas. In quattuor libros Sententiarum. Vol. 1 of S. Thomae Aquinatis opera omnia. Edited by R. Busa. Stuttgart: Fromman-Holzboog, 1980. ———. Sententia libri Ethicorum, in Commentaria in Aristotelem et alios. Vol. 5 of S. Thomae Aquinatis opera omnia. Edited by R. Busa. Stuttgart: FrommanHolzboog, 1980. ———. Summa theologiae, in Summa contra gentiles, autographi deleta, summa theologiae. Vol.2 of Thomae Aquinatis opera omnia, edited by R. Busa. Stuttgart: Friedrich Frommann Verlag, 1980. Aquinas, Thomas. Law and Political Theory (1a2ae 90–97). Vol. 28 of Summa theologiae: Latin Text and English Translation, Introductions, Notes, Appendices, and Glossaries, edited and translated by Thomas Gilby. London: Blackfriars, 1966. Augustine. Contra Faustum Manichaeum. In Patrologiae cursus completus. Series Latina, edited by J. P. Migne, 221 vols. Paris, 1844–64. [PL] 42 col. 207–518. ———. De bono conjugali. In PL. Vol. 40. col. 373–396. ———. De libero arbitrio. In PL. Vol. 32 col. 1219–1310. ———. De sancta virginitate. In PL. Vol. 40 col. 395–428. ———. De sermone Domini in monte. In PL. Vol. 34. col. 1229–1307. ———. In epistolam Iohannis. In PL. Vol. 35. col. 1977–2062.

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360  Selected Bibliography Das Augsburger Interim von 1548 nach den Reichstagsakten deutsch und lateinisch. Texte zur Geschichte der evangelischen Theologie 3. Edited by J. Mehlhausen. Neukirchen: Neukirchner Verlag, 1970. Baberryac, Jean. Discourse on What Is Permitted by the Laws. Translated by David Saunders in The Whole Duty of Man According to the Law of Nature. Natural Law and Enlightenment Classics. Edited by I. Hunter and D. Saunders, 307–30. Indianapolis: Liberty Fund, 2003. Burlamaqui, Jean-Jacques. The Principles of Natural and Politic Law (1747). Natural Law and Enlightenment Classics. Edited by Petter Korkman. Translated by Thomas Nugent. Indianapolis: Liberty Fund, 2006. Cicero. De inventione. De optimo genere oratorum. Topica. Loeb Classical Library. Edited by H. M. Hubbell. Reprint London: William Heinemann Ltd., 1960. ———. De republica. De legibus. Loeb Classical Library. Edited by C. W. Keyes, Reprint London: William Heinemann Ltd., 1970. ———. De officiis, Edited by M. Winterbottom. Oxford Classical Texts. Oxford: Clarendon Press, 1994. ———. On Stoic Good and Evil: De finibus bonorum et malorum, Liber III and Paradoxa Stoicorum. Classical Texts. Edited by M. R. Wright. Warminster: Ariss and Phillips Ltd., 1991. Corpus iuris canonici. Edited by E. Friedberg. 2 vols. Reprint Graz: Akademische Druck und Verlagsanstalt, 1959. Corpus iuris civilis, edited by T. Mommsen and P. Krueger. 3 vols. Berlin: Weidmann, 1868. Corpus Reformatorum. Edited by C. G. Bretschneider and H. E. Bindseil. 28 vols. Halle u. Braunshweig: Schwetschke, 1834–60. Darjes, Joachim Georg. Observationes iuris naturalis, socialis et gentium ad ordinem systematis sui selectae. 2 vols. Jena: Sumptibus Theod. Wilh. Ernest Guth, 1751–54. Doctoris Irrefragibilis Alexandri de Hales Summa theologica seu sic ab origine dicta ‘Summa Fratris Alexandri’. Edited by V. Doucet. 4 vols. Quaracchi: Collegium S. Bonaventurae, 1924–48. Flacius Illyricus, Matthias. Liber de veris et falsis Adiaphoris. In Omnia latina scripta . . . contra Adiaphoricas fraudes et errores aedita. Magdeburg: Michael Lotter, 1550. Giles of Rome. De potestate ecclesiastica. Edited by R. Scholz. Weimar: Herman Böhlaus Nachfolg, 1929. ———. De regimine principum. Rome: Antonius Bladus, 1556. Goldast, Melchior, ed. Monarchia S. Romani Imperii. 3 vols. Frankfurt, 1614. Gratian. Gratian: The Treatise on Laws (Decretum DD. 1–20) With the Ordinary Gloss. Studies in Medieval and Early Modern Canon Law 2. Translated by A. Thompson and J. Gordley. Introduction by Katherine Christensen. Washington, D.C.: The Catholic University of America Press, 1993. Grotius, Hugo. De imperio summarum potestatum circa sacra. Studies in the History of Christian Thought 102. Edited and translated by H.-J. van Dam. 2 vols. Leiden: Brill, 2001. ———. De jure belli et pacis. The Classics of International Law 3. Edited by J. B.

Selected Bibliography  361 Scott. Translated by F. W. Kelsey. 2 vols. Oxford: Clarendon Press, 1925. ———. De jure praedae commentarius. Vol.1, A Translation of the Text. Translated by G. Williams. Oxford: Clarendon Press, 1950. ———. Hugonis Grotii de jure praedae commentarius. Edited by H. G. Hamaker. The Hague: Martinus Nijhof, 1868. ———. Hugonis Grotii Institutiones juris Hollandici. Rechtshistorisch Institut 3. Edited by H. F. W. D. Fischer. Translated by J. van der Linden. Haarlem: H. D. Tjeenk Willink & Zoon, 1962. ———. The Rights of War and Peace. Natural Law and Enlightenment Classics. Edited by R. Tuck. Translated by J. Morice. Indianapolis: Liberty Fund, 2005. Hooker, Richard. The Folger Library Edition of the Works of Richard Hooker. Edited by W. Speed Hill. Vols. 1–5: Cambridge, Mass.: Bellknap Press, 1977– 90. Vol. 6: Binghamton, N.Y.: Medieval and Renaissance Texts and Studies, 1993. ———. Richard Hooker, Of the Laws of Ecclesiastical Polity: An Abridged Edition. Edited by A. S. McGrade and B. Vickers. London: Sidgwick and Jackson, 1973. Hugh of St. Victor. De sacramentis Christianae fidei. In PL. Vol. 176. col. 173–681. Huguccio of Pisa. Huguccio Pisanus Summa Decretorum. Vol.1, Distinctiones I–XX, Monumenta Iuris Canonici, Serie A, Corpus Glossatorum 6. Edited by O. Pˇrerovský. Vatican City; Biblioteca Apostolica Vaticana, 2006. Ivo of Chartres. Le Prologue. Sources canoniques 1. Edited and translated by J. Werckmeister. Paris: Editions du Cerf, 1997. Fortescue, John. De laudibus legum Angliae. London, 1616. Hobbes, Thomas. English Works of Thomas Hobbes of Malmesbury. Edited by W. Molesworth. 11 Vols. London: J. Bohn, 1839–45. ———. Leviathan, or The matter, forme and power of a commonwealth, ecclesiasticall and civil. Blackwell’s Political Texts. Edited by M. Oakeshott. Oxford: Basil Blackwell, 1946. Kant, Immanuel. “Kant on the Metaphysics of Morals; Vigilantius’s Lecture Notes.” Translated by P. Heath. In The Cambridge Edition of the Works of Immanuel Kant: Lectures on Ethics. Edited by P. Heath and J. B. Schneewind. Cambridge: Cambridge University Press, 1997. ———. The Metaphysics of Morals. Texts in German Philosophy. Translated by M. Gregor. Cambridge: Cambridge University Press. 1991. ———. Die Metaphysik der Sitten. Vol. 6 of Kant’s Gesammelte Schriften. Berlin: G. Reimer, 1907. ———. Toward Perpetual Peace. In The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy. Translated and edited by M. Gregor. Cambridge: Cambridge University Press, 1996. Lombard, Peter. Sententiae in IV libris distinctae, Vol. 2. Grottaferrata: Editiones Collegii S. Bonaventurae, 1981. Marsilius of Padua. The Defensor pacis. Translated with an introduction by A. Gewirth. Vol. 2 of Marsilius of Padua: The Defender of the Peace. New York: Columbia University Press, 1956. Reprint 2001. ———. Marsilius of Padua: The Defender of the Peace. Cambridge Texts in the Histo-

362  Selected Bibliography ry of Political Thought. Edited and translated by A. Brett. Cambridge: Cambridge University Press, 2005. ———. Marsilius von Padua. Defensor pacis. Fontes iuris germanici antique Ser. 1, 7. Edited by R. Scholz. Hanover: Hahnsche Buchhandlung, 1933. Melanchthon, Philipp. Loci communes von 1521. Vol. 2 of Melanchthons Werke in Auswahl. Edited by H. Engelland. Gütersloh: H. Bertelsmann Verlag, 1952– 53. Minorita, Nicolaus. Appellatio in forma maiore. In Nicolaus Minorita: Chronica: Documentation on Pope John XIII, Michael of Cesena and the Poverty of Christ with Summaries in English: A Source Book. Franciscan Institute Publications 12. Edited by G. Gál and D. Flood. St. Bonaventure, N.Y.: Franciscan Institute, 1996. Paucapalea. Summa über das Decretum Gratiani. Edited by J. F. von Schulte. Giessen, 1890. Reprint Graz: Scientia Verlag, 1965. Prefaces to Canon Law Books in Latin Christianity. Translated by R. Somerville and B. C. Brasington. New Haven: Yale University Press, 1998. Pufendorf, Samuel. De jure naturae et gentium libri octo. Edited by J. B. Scott. Translated by C. H. Oldfather and W. A. Oldfather. 2 vols. Oxford: Clarendon Press, 1934. ———. Of the Law of Nature and Nations. Translated by B. Kennet. London: R. Sare, 1717. ———. Samuel Pufendorf: The Whole Duty of Man, According to the Law of Nature. Natural Law and Enlightenment Classics. Edited by I. Hunter and D. Saunders. Indianapolis: Liberty Fund, 2003. Puritan Manifestoes: A Study of the Origins of the Puritan Revolt. Edited by W. H. Frere and C. E. Douglas. London: SPCK, 1954. Rufinus of Bologna. Rufinus von Bologna: Summa Decretorum. Edited by H. Singer. Paderborn, 1902. Reprint Aalen: Scientia Verlag, 1953. Selden, John. Joannis Seldeni juris consulti Opera omnia tam edita quam inedita. Edited by J. D. Wilkins. 3 vols. London: Guil. Bowyer, 1726. Suarez, Francisco. Francisco Suarez...opera omnia. Edited by M. André. 28 vols. Paris: Vivès, 1856–78. Summa ‘Elegantius in iure divino’ seu Coloniensis. Monumenta Iuris Canonici, Serie A, Corpus Glossatorum 1. Edited by G. Fransen and S. Kuttner. 4 vols. New York: Fordham University Press, 1969. Thomasius, Christian. Fundamenta juris naturae et gentium. Halle, 1718. Reprint Aalen: Scientia Verlag, 1963. Whitgift, John. The Works of John Whitgift. Edited by John Ayre. 3 vols. Cambridge: Parker Society, 1851. William of Auxerre. Summa aurea Magistri Guillellmi Altissiodorensis. Edited by J. R. Robaillier. 5 vols. Spicilegium Bonaventurianum 16–20. Paris: Centre de la Recherche Scientifique, 1980–87. William of Ockham. Guillelmi de Ockham opera philosophica et theologica. Edited by G. Gál, et al. 17 vols. St. Bonaventure, N.Y.: Franciscan Institute, 1967–88. ———. Guillelmi de Ockham opera politica. Edited by H. S. Offler, et al. Vols. 1–3: Manchester: Manchester University Press, 1957–74. Vol. 4: Oxford: Oxford University Press, 1997.

Selected Bibliography  363 ———. On the Power of Emperors and Popes. Edited and translated by A. S. Brett. Primary Sources in Political Thought. Bristol, U.K.; Thoemmes Press, 1998. ———. Opera politica. Edited by J. G. Sikes et al. 7 vols. Oxford: Oxford University Press, 1940. Reprint 2011. ———. William of Ockham: A Short Discourse on Tyrannical Government. Cambridge Texts in the History of Political Thought Series. Edited by A. S. McGrade. Translated by J. Kilcullen. Cambridge: Cambridge University Press, 1991. Wolff, Christian. Institutiones juris naturae et gentium. Pt. 2, vol. 26 of Christian Wolff: Gesammelte Werke. Edited by M. Thommann. Hildesheim: Georg Olms, 1969. ———. Jus naturae. Pt. 2, vol. 18 of Christian Wolff: Gesammelte Werke. Edited by M. Thommann. Hildesheim: Georg Olms, 1968. ———. La metaphysique de Christian Wolff. Pt. 3, vol. 12 of Christian Wolff: Gesammelte Werke. Edited by J. École. Hildesheim: Georg Olms, 1990. ———. Philosophia practica universalis secundum methodo scientifica. Pt. 2, vol. 10 of Christian Wolff: Gesammelte Werke. Edited by M. Thomann. Gesammelte Werke. Hildesheim: Georg Olms, 1971.

Secondary Adams, Marilyn. William Ockham. 2 vols. Publications in Mediaeval Studies 26. Notre Dame: University of Notre Dame Press, 1987. Bärthlein, Karl. “Die Vorbereitung der Kantischen Rechts- und Staatsphilosophie in der Schulphilosophie.” In Kant: Analysen-Probleme-Kritik, edited by H. Oberer and G. Seel, 221–71. Würzburg: Königshausen & Neumann, 1988. Baynes, Kenneth. “Kant on Property Rights and the Social Contract.” The Monist 72 (1989): 433–53. Bente, Friedrich. Historical Introductions to the Formula of Concord. St. Louis: Concordia Publishing House, 1965. di Blasio, Fulvio. God and Natural Law: A Rereading of Thomas Aquinas. Translated by David Thunder. South Bend, Ind.: St. Augustine’s Press, 2006. Bowlin, John R. Contingency and Fortune in Aquinas’s Ethics. Cambridge: Cambridge University Press, 1999. Brandt, Reinhard. “Das Problem der Erlaubnisgesetze im Spätwerk Kants.” In Zum ewigen Frieden Immanual Kant, edited by O. Höffe, 69–86. Berlin: Akademie Verlag, 1995. ———. “Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants Rechtslehre.” In Rechtsphilosophie der Aufklärung, edited by R. Brandt, 233–85. Berlin: de Gruyter, 1982. Brett, Annabel. “Politics, Right(s) and Human Freedom in Marsilius of Padua.” In Transformations in Medieval and Early-Modern Rights Discourse. New Synthese Historical Library 59. Edited by V. Mäkinen and P. Korkman, 95–116. Dordrecht: Springer, 2006. Brett, Annabel. “Natural Right and Civil Community; the Civil Philosophy of Hugo Grotius.” The Historical Journal 45 (2002): 31–51. ———. Liberty, Right and Nature: The Language of Individual Rights in Later Scho-

364  Selected Bibliography lastic Thought. Ideas in Context 44. Cambridge: Cambridge University Press, 1997. Buckle, Stephen. Natural Law and the Theory of Property: Grotius to Hume. Oxford: Clarendon Press, 1991. Bull, Hedley, Benedict Kingsbury, and Adam Roberts, eds. Hugo Grotius and International Relations. Oxford: Clarendon Press, 1990. Byrd, B. Sharon, and Joachim Hruschka. Kant’s Doctrine of Right: A Commentary. Cambridge: Cambridge University Press, 2010. Cargill Thompson, W. D. J. “The Philosopher of the ‘Politic Society’: Richard Hooker as a Political Thinker.” In Studies in Richard Hooker, edited by W. Speed Hill, 3–76. Cleveland: Case Western University Press, 1972. Cavallar, Georg. The Rights of Strangers: Theories of International Hospitality, The Global Community, and Political Justice Since Vitoria. Aldershot: Ashgate, 2002. Christianson, Paul. “Young John Selden and the Ancient Constitution, ca.1610.1618.” Proceedings of the American Philosophical Society 128 (1984): 271–315. Chroust, Anton-Hemann. “Hugo Grotius and the Scholastic Natural Law Tradition.” The New Scholasticism 17 (1943): 101–33. Colish, Marcia L. The Stoic Tradition from Antiquity to the Early Middle Ages. 2 vols. Studies in the History of Christian Thought 34–35. Leiden: E. J. Brill, 1985. Collinson, Patrick. The Elizabethan Puritan Movement. London: Cape, 1967. Coolidge, John S. The Pauline Renaissance in England: Puritanism and the Bible. Oxford: Clarendon Press, 1978. Coolman, Boyd T. The Theology of Hugh of St. Victor. An Interpretation. Cambridge: Cambridge University Press, 2010. Cortese, Ennio. La norma giuridica. Vol.1. Milan: Giuffré, 1962. Costello, Frank B. The Political Philosophy of Luis de Molina, S.J. (1535–1600). Bibliotheca Instituti S.I. 38. Rome: Institutum Historicum S.I., 1974. Damiata, Marino. “Funzione e concetto della povertà evangelica in Marsilio de Padova.” Medievo 6 (1980): 411–30. ———. Guglielmo d’Ockham: Povertà e potere. 2 vols. Biblioteca di Studi francescani 14–15. Florence: Studi Francescani, 1978–79. Deggau, Hans-Georg. Die Aporien der Rechtslehre Kants. Problemata 94. Stuttgart: Frommen-Holzboog, 1983. Döring, Detlef. Pufendorf-Studien: Beiträge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklung als Historiker und theologischer Schriftsteller. Historische Forschungen 49. Berlin: Dunker und Humbolt, 1992. Doyle, John P. “Francisco Suarez on the Law of Nations.” In Religion and International Law, edited by M. W. Janis and S. Evans, 103–20. Martinus Nijhoff, 1999. Dufour, Alfred. “Pufendorf.” In The Cambridge History of Political Thought, 1450– 1700, edited by J.H. Burns, 561–88. Cambridge: Cambridge University Press, 1991. Eccleshall, Robert. “Richard Hooker and the Peculiarities of the English: The Reception of the ‘Ecclesiastical Polity’ in the Seventeenth and Eighteenth Centuries.” History of Political Thought 2, no. 1 (1981): 63–117.

Selected Bibliography  365 Edwards, Charles S. Hugo Grotius, The Miracle of Holland: A Study in Political and Legal Thought. Chicago: Nelson-Hall, 1981. Finnis, John. Aquinas: Moral, Political, and Legal Theory. Oxford: Oxford University Press, 1998. Flickschuh, Katrin. “Freedom and Constraint in Kant’s Metaphysical Elements of Justice.” History of Political Thought 20, no. 2 (1999): 250–71. Forte, Paul E. “Richard Hooker’s Theory of Law.” Journal of Medieval and Renaissance Studies 12, no. 2 (1982): 133–57. Freppert, Lucan. The Basis of Morality according to William Ockham. Chicago: Franciscan Herald Press, 1988. Fry, Edward. “John Selden.” In Table Talk of John Selden, edited by Frederick Pollock and Edward Fry, 153–85. London: Quaritch, 1927. Gagnebin, Bernard. Burlamaqui et le droit naturel. Geneva: La Frégat, 1944. Garnsey, Peter. Thinking about Property: From Antiquity to the Age of Revolution. Ideas in Context 90. Cambridge: Cambridge University Press, 2007. George, Robert P. In Defense of Natural Law. Oxford: Clarendon Press, 1999. Gonzalez, Gabrielle. “‘The King of the Locusts Who Destroyed the Poverty of Christ’: Pope John XXII, Marsilius of Padua, and the Franciscan Question.” In Moreno-Riano, The World of Marsilius of Padua, 65–88. Gordley, James. The Philosophical Origins of Modern Contract Doctrine. Clarendon Law Series. Oxford: Clarendon Press, 1991. Gregor, Mary. “Kant’s Theory of Property.” Review of Metaphysics 41 (1988): 757–87. Grisez, Germain. “The First Principle of Practical Reason.” Natural Law Forum 10 (1965): 168–96. Grisez, Germain, Joseph Boyle, and John Finnis. “Practical Principles, Moral Truth, and Ultimate Ends.” American Journal of Jurisprudence 32 (1987): 99– 151 Haakonssen, Knud. “The Moral Conservatism of Natural Rights.” In Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Theory, edited by I. Hunter and D. Saunders, 27–42. New York: Palgrave, 2002. ———. Grotius, Pufendorf and Modern Natural Law. International Library of Critical Essays in the History of Philosophy. Aldershot: Ashgate, 1996. ———. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press, 1996. Haggenmacher, Peter. Grotius et la doctrine de la guerre juste. Publications de l’Institut universitaire de hautes etudes internationals, Genève. Paris: Presses universitaires de France, 1983. Hall, Pamela M. Narrative and the Natural Law: An Interpretation of Thomistic Ethics. Notre Dame: University of Notre Dame Press, 1994 Hamilton-Bleakely, Holly. “Marsilius of Padua’s Conception of Natural Law Revisited.” In Moreno-Riano, World of Marsilius of Padua, 125–42. Hartmann, Wilfried, and Kenneth Pennington, eds. History of Medieval Canon Law, in the Classical Period, 1140–1234. Washington, D.C.: The Catholic University of America Press, 2008.

366  Selected Bibliography Hilpinen, Risto. “Deontic Logic.” In The Blackwell Guide to Philosophical Logic, edited by L. Goble, 159–82. Malden, Mass.: Blackwell, 2001. Hillerdal, Gunnar. Reason and Revelation in Richard Hooker. Första avdelningen, Teologi, juridik och humanistiska ämnen 54.7. Lund: Lund Universitets Arskrift, 1962. Hochstrasser, T. J. Natural Law Theories in the Early Enlightenment. Ideas in Context 58. Cambridge, Cambridge University Press, 2000. ———. “Conscience and Reason: The Natural Law Theory of Jean Barbeyrac.” In Grotius, Pufendorf and Modern Natural Law. International Library of Critical Essays in the History of Philosophy. Edited by K. Haakonssen. Aldershot: Ashgate, 1999. Hohfeld, Wesley N. Fundamental Legal Conceptions. New Haven: Yale University Press, 1923. Horowitz, Maryanne C. Seeds of Virtue and Knowledge. Princeton: Princeton University Press, 1998. Hruschka, Joachim. “The Permissive Law of Practical Reason in Kant’s Metaphysics of Morals.” Law and Philosophy 23, no. 1 (2004): 47–72. Hruschka, Joachim. “Supererogation and Meritorious Duties.” Jahrbuch für Recht und Ethik 6 (1998): 92–108. ———. “The Hexagonal System of Deontic Concepts According to Achenwall and Kant.” In Estudios de Historia de la lógica. Actas del II Simposio de historia de la lógica, Universidad de Navarra, Pamplona, 25–27 de Mayo de 1987. Acta Philosophica. Edited by J. Angelleli and A. d’Ors, 277–94. Pamplona: Editiones Eunate, 1990. ———. Das deontologische Sechseck bei Gottfried Achenwall im Jahr 1767: zur Geschichte der deontischen Grundbegriffe in der Universaljurisprudenz zwischen Suarez und Kant. Berichte aus den Sitzungen der Joachim Jungius- Gesellschaft der Wissenschaften e. V. Hamburg Jahrg. 4 Heft 2. Hamburg: Joachim JungiusGesellschaft, 1986. Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in the Early German Enlightenment. Ideas in Context. Cambridge: Cambridge University Press, 2001. van Ittersum, Martine J. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615. Brill’s Studies in Intellectual History 139. Brill: Leiden, 2006. Jensen, Steven J. Good and Evil Actions: A Journey through Saint Thomas Aquinas. Washington, D.C.: The Catholic University of America Press, 2010. Kahn. Victoria A. Wayward Contracts: The Crisis of Political Obligation in England, 1640–1674. Princeton: Princeton University Press, 2004. Kalb, Herbert. Studien zur Summa Stephans von Tournai: ein Beitrag zur kanonistischen Wissenschaftsgeschichte des späten 12. Jahrhunderts. Forschungen zur Rechts- und Kulturgeschichte 12. Innsbruck: Universitäts Verlag Wagner, 1983. Kalinowski, Georges. La logique des norms. Le Philosophe 103. Paris: Presses universitaires de France, 1972. Kaufman, Matthias. “Was erlaubt das Erlaubnisgesetze und wozu braucht es Kant?” Jahrbuch für Recht und Ethik 13 (2005): 195–219.

Selected Bibliography  367 Kempshall, Matthew S. The Common Good in Late Medieval Political Thought. Oxford: Clarendon Press, 1999. Kerr, Fergus. “Natural Law: Incommensurable Readings.” Aquinas’s Summa Theologiae: Critical Essays. Critical Essays on the Classics. Edited by B. Davies, 245–63. New York: Rowman and Littlefield, 2006. Kersting, Wolfgang. “Politics, Freedom, and Order: Kant’s Political Philosophy.” In The Cambridge Companion to Kant. Cambridge Companion to Philosophy Series. Edited by P. Guyer, 342–66. Cambridge: Cambridge University Press, 1992. ———. “Freiheit und intelligibiliter Besitz: Kants Lehre vom Synthetischen Rechtsatz apriori.” Allgemeine Zeitschrift für Philosophie 6 (1981): 31–51. Kilcullen, John. “The Origin of Property: Ockham, Grotius, Pufendorf, and Some Others.” In A Translation of Ockham’s Work of Ninety Days. Texts and Studies in Religion 87. Edited by J. Kilcullen and J. Scott, vol. 2, 883–932. Lewiston, N.Y.: Edwin Mellen Press, 2001. Knuuttila, Simo. “The Emergence of Deontic Logic in the Fourteenth Century.” In New Studies in Deontic Logic. Synthese Library 152. Edited by R. Hilpinen, 225–48. Dordrecht: D. Reidel, 1981. Knysh, George D. Political Ockhamism. Winnipeg: WCU Council of Learned Societies, 1996. Kolb, Robert A. “Historical Background of the Formula of Concord.” in A Contemporary Look at the Formula of Concord, edited by R. D. Preus and W. H. Rosin, 12–87. St. Louis, Concordia Publishing House, 1978. Korkman, Petter. “Life, Liberty and the Pursuit of Happiness: Human Rights in Barbeyrac and Burlamaqui.” In Transformations in Medieval and Early Modern Rights Discourse. New Synthese Historical Library 59. Edited by V. Mäkinen and P. Korkman, 257–82. Dordrecht: Springer, 2006. ———. “Voluntarism and Moral Obligation: Barbeyrac’s Defence of Pufendorf Revisited,” In Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment. Archives internationales d’histoire des idées 186. Edited by T. J. Hochstrasser and P. Schröder, 195–226. Dordrecht; Kluwer Academic Publishers, 2003. Kriechbaum, Maximilane “Actio, fas, und ius in den Kommentierungen der Dekretistik zu D.1 c.1.” In Die Bedeutung der Wörter, Festschrift für Sten Gagnér zum 70. Geburtstag, edited by M. Stolleis, et al. 155–75. Munich: G. H. Beck’sche Verlagsbuchhandlung, 1991. Krieger, Leonard. The Politics of Discretion: Pufendorf and the Acceptance of Natural Law. Chicago: University of Chicago Press, 1965. Kuttner, Stephan. Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX. Studi e Testi 64. Vatican City: Biblioteca Apostolica Vaticana, 1935. de Lagarde, Georges. La naissance de l’esprit laïque au déclin du moyen âge. 6 vols. Paris: Éditions Béatrice, 1934–36; 2nd ed., 5 vols. Paris: E. Nauwelaerts, 1956–70. Lake, Peter. Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker. London: Unwin Hyman, 1988. Lambert, Malcom D. Franciscan Poverty: The Doctrine of Absolute Poverty of Christ

368  Selected Bibliography and the Apostles in the Franciscan Order, 1210–1323. Revised and expanded. St. Bonaventure, N.Y.: Franciscan Institute, 1998. Lisska, Anthony J. “The Philosophy of Law of Thomas Aquinas.” In A Treatise of Legal Philosophy and General Jurisprudence. Vol.6, A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, edited by F. D. Miller and C.-A. Biondi, 285–310. Dordrecht: Springer, 2007. ———. Aquinas’s Theory of Natural Law: An Analytic Reconstruction. Oxford: Clarendon Press, 1996. Lloyd, Howell A. “Constitutionalism.” In The Cambridge History of Political Thought 1450–1700, edited by J. H. Burns with M. Goldie, 254–97. Cambridge: Cambridge University Press, 1995. Lottin, Odon. Psychologie et morale aux XIIe et XIIIe siècles. Vol.2, Problèmes de morale, Première partie. Gembloux: J. Duculot, 1948. Manschrek, Clyde L. “The Role of Melanchthon in the Adiaphora Controversy.” Archiv für Reformationsgeschichte 48, no. 2 (1957): 165–82. Mautner, Thomas. “Pufendorf and the Correlativity Theory of Rights.” In In So Many Words: Philosophic Essays Dedicated to Sven Danielsson. Filosofiska stuier utgivna av Filosofiska föreningen och Filosofiska institutionen vid Uppsala universitet 42. Edited by S. Lindström and W. Rabinowiz, 37–60. Uppsala: Philosophical Society, 1998. McGrade, Arthur S. ed., Richard Hooker and the Construction of Christian Community. Medieval and Renaissance Texts and Studies 165. Tempe, Ariz.: Medieval and Renaissance Texts and Studies, 1997. ———. The Political Thought of William of Ockham: Personal and Institutional Principles. Cambridge Studies in Medieval Life and Thought, 3rd ser. 7. Cambridge: Cambridge University Press, 1974. ———. “The Coherence of Hooker’s Polity: The Books on Power.” Journal of the History of Ideas 24, no. 2 (1962): 163–82. McLaughlin, Terrence P. “The Teaching of the Canonists on Usury.” Mediaeval Studies 1 (1939): 81–147. Miethke, Jürgen. Ockham’s Weg zur Sozialphilosophie. Berlin: De Gruyter, 1969. Moore, Michael S. “Liberty and Supererogation.” Jahrbuch für Recht und Ethik 6 (1998): 111–43. Moreno-Riano, Gerson. The World of Marsilius of Padua. Disputatio 5. Turnhout: Brepols, 2007. Munz, Peter. The Place of Hooker in the History of Thought. 1952. Reprint, Westport, Conn.: Greenwood Press, 1971. Murphy, James Bernard. The Philosophy of Positive Law: Foundations of Jurisprudence. New Haven: Yale University Press, 2005. Nederman, Cary J. “Marsiglio of Padua Studies Today—and Tomorrow.” In Moreno-Riano, World of Marsilius of Padua, 11–25. Nelson, Benjamin. The Idea of Usury. From Tribal Brotherhood to Universal Otherhood. 2nd ed. Chicago: University of Chicago Press, 1969. Nelson, Daniel Mark. The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics. University Park: Pennsylvania State University Press, 1992. Nemeth, Charles P. Aquinas in the Courtroom: Lawyers, Judges, and Judicial Con-

Selected Bibliography  369 duct. Contributions in Philosophy 82. Westport, Conn.: Greenwood Press, 2001. Noonan, John T. The Scholastic Analysis of Usury. Cambridge, Mass.: Harvard University Press, 1957. Oakley, Francis. Natural Law, Laws of Nature, Natural Rights: Continuity and Discontinuity in the History of Ideas. New York: Continuum International Publishing Group, 2005. Obiwulu, Aloysius. Tractatus de Legibus in 13th Century Scholasticism: A Critical Study and Interpretation of Law in Summa Fratris Alexandri, Albertus Magnus and Thomas Aquinas. Schriftenreihe der Josef Pieper Stiftung 4. Münster: Lit Verlag, 2003. Offler, H.S. “The Three Modes of Natural Law in Ockham: A Revision of the Text,” Franciscan Studies 37 (1977): 207–18. Olsen, Oliver K. Matthias Flacius and the Survival of Luther’s Reform. Wolfenbütteler Abhandlungen zur Renaissanceforschung 20. Wiesbaden: Harrosowitz Verlag, 2002. O’Neill, Onora. “Instituting Principles: Between Duty and Action.” In Kant’s Metaphysics of Morals: Interpretive Essays, edited by M. Timmons, 331–47. Oxford: Oxford University Press, 2002. Palladini, Fiammetta. Samuel Pufendorf discepolo di Hobbes: Per una reinterpretazione del giusnaturalismo moderno. Ricerca. Bologna; Il Mulino, 1990. Passerin d’Entrèves, Alessandro. The Medieval Contribution to Political Thought: Thomas Aquinas, Marsilius of Padua, Richard Hooker. Oxford: Oxford University Press, 1939. Pereira, José. Suárez: Between Scholasticism and Modernity. Marquette Studies in Philosophy 52. Milwaukee: Marquette University Press, 2007. Piaia, Gregorio. Marsilio de Padova nella Riforma e nella Contrariforma: fortuna ed interpretazione. Pubblicazioni dell’Istituto di storia della filosofia e del Centro per ricerche di filosofia medioevale n.s. 24. Padua: Antenore, 1977. Pocock, John G. A. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press, 1957. Porter, Jean. The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics. Louisville: Westminster John Knox Press, 1990. Primus, John Henry. The Vestments Controversy: An Historical Study of the Earliest Tensions within the Church of England in the Reigns of Edward VI and Elizabeth. Kampen: J. H. Kok, 1960. Quillet, Jeannine. La philosophie politique de Marsile de Padoue. Eglise et l’état au moyen âge 14. Paris: Vrin, 1970. Ripstein, Arthur. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, Mass.: Harvard University Press, 2009. Rogness, Michael. Melanchthon. Reformer Without Honor. Minneapolis: Augsburg, 1969. Rolker, Christof. Canon Law and the Letters of Ivo of Chartres. Cambridge Studies in Medieval Life and Thought, 4th ser. 76. Cambridge: Cambridge University Press, 2010. Rommen, Heinrich A. Die Staatslehre des Franz Suarez, S.J. München-Gladbach: Volksvereins-Verlag, 1926.

370  Selected Bibliography Rorem, Paul. Hugh of Saint Victor. Great Medieval Thinkers. Oxford: Oxford University Press, 2009. Rosenblatt, Jason P. Renaissance England’s Chief Rabbi: John Selden. Oxford: Oxford University Press, 2006. Saastamoinen, Kiri. “Liberty and Natural Rights in Pufendorf’s Natural Law Theory.” In Transformations in Medieval and Early-Modern Rights Discourse. New Synthese Historical Library 59. Edited by V. Mäkinen and P. Korkman, 225–56. Dordrecht: Springer, 2006. ———. The Morality of Fallen Man: Samuel Pufendorf on Natural Law. Studia Historica 52. Helsinki: Societas Historicae Finlandiae, 1995. Sabine, George Holland. A History of Political Theory. London: H. Holt and company, 1937. Salmon, J. M. H. “Catholic Resistance Theory, Ultramontanism, and the Royalist Response, 1580–1620.” In J. H. Burns with M. Goldie, History of Political Thought, 219–253. Saunders, David. “The Natural Jurisprudence of Jean Barbeyrac: Translation as an Art of Political Adjustment.” Eighteenth-Century Studies 36, no. 4 (2003): 473–90. Schneewind, Jerome B. The Invention of Autonomy: A History of Modern Moral Philosophy. Cambridge: Cambridge University Press, 1998. von Schulte, Johann Friedrich. Die Geschichte der Quellen und Literatur des Canonischen Rechts. 3 vols. Stuttgart, 1875–80. Reprinted Graz: Akademische Druck, 1956. Shagan, Ethan H. “The Battle for Indifference in Elizabethan England.” In Moderate Voices in the European Reformation. St. Andrews Studies in Reformation History. Edited by L. Racaut and A. Pyrie, 122–44. Aldershot, U.K.: Ashgate, 2005. Shogimen, Takashi. Ockham and Political Discourse in the Later Middle Ages. Cambridge Studies in Medieval Life and Thought, 4th ser. 69. Cambridge: Cambridge University Press, 2007. Sigmund, Paul E. Natural Law in Political Thought. Cambridge, Mass.: Winthrop Publishers, 1971. Simonetta, Stefano. Marsilio in Inghilterra: Stato e chiesa nel pensiero politico inglese fra XIV e XVII secolo. Pubblicazioni della Facultà di lettere e filosofia dell’Università di Milano. Milan: LED, 2000. Simmons, A. John. “Original-Acquisition Justifications of Property.” In Simmons, Justification and Legitimacy: Essays on Rights and Obligations, 197–221. Cambridge: Cambridge University Press, 2001. ———. The Lockean Theory of Rights. Studies in Moral, Political, and Legal Philosophy. Princeton: Princeton University Press, 1996. Sommerville, Joahnn Peter. “Selden, Grotius, and the Seventeenth-Century Intellectual Revolution in Moral and Political Theory.” In Rhetoric and Law in Early Modern Europe, edited by V. Kahn and L. Hutson, 318–44. New Haven: Yale University Press, 2001. ———. “John Selden, The Law of Nature, and the Origins of Government.” Historical Journal 27 (1984): 437–47.

Selected Bibliography  371 Spade, Paul Vincent, ed. The Cambridge Companion to Ockham. Cambridge: Cambridge University Press, 1999. Szywolak, Aaron. “Kant’s Permissive Law: Critical Rights, Sceptical Politics.” British Journal for the History of Philosophy 17 (2009): 567–600. Thomman, Marcel. “Christian Wolff et le droit subjectif.” Archives de philosophie du droit 9 (1964): 153–74. Tierney, Brian. “Corporatism, Individualism, and Consent. Locke and Premodern Thought.” In Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, edited by K. Pennington and M. H. Eichbauer, 49–72. Farnham, U.K.: Ashgate Publishing, 2011. ———. “Vitoria and Suarez on ius gentium, Natural Law, and Custom,” In The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, edited by A. Perreau-Saussine and J. B. Murphy, 101–24. Cambridge: Cambridge University Press, 2007. ———. “Permissive Natural Law and Property: Gratian to Kant.” Journal of the History of Ideas. 62 (2001): 381–99. ———. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Emory University Studies in Law and Religion 5. Atlanta: Scholars Press, 1997. Reprinted Grand Rapids: Eerdmans Publishing Company, 2001. ———. Origins of Papal Infallibility, 1150–1350: A Study on the Concepts of Infallibility, Sovereignty and Tradition in the Middle Ages. Studies in the History of Christian Thought 6. Leiden: E. J.Brill, 1972. Timmons, Mark ed., Kant’s Metaphysics of Morals: Interpretative Essays. Oxford: Oxford University Press, 2002. Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 1999. ———. Philosophy and Government, 1572–1651. Ideas in Context. Cambridge: Cambridge University Press, 1993. ———. “‘The Ancient Law of Freedom’: John Selden and the Civil War.” In Reactions to the English Civil War, 1642–1649, edited by J. Morill, 137–61. New York: St. Martin’s Press, 1982. ———. Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press, 1979. Verkamp, Bernard J. The Indifferent Mean: Adiaphorism in the English Reformation to 1554. Studies in the Reformation 1. Athens, Ohio: Ohio University Press, 1977. Villey, Michel. La formation de la pensée juridique moderne: cours d’histoire de la philosophie du droit. 4th ed. Paris: Éditions Montchrestien, 1975. Weigand, Rudolf. Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus. Münchener theologische Studien. III. Kanonistische Abteilung 26. Munich: Max Hueber Verlag, 1967. Weinreb, Lloyd L. Natural Law and Justice. Cambridge, Mass.: Harvard University Press, 1987. White, Morton. The Philosophy of the American Revolution. Oxford: Oxford University Press, 1978.

372  Selected Bibliography Wilenius, Reiijo. The Social and Political Theory of Francisco Suarez. Acta Philosophica Fennica 15. Helsinki: Suomalaisen Kirjallisuuden Kirjapaino, 1963. Winroth, Anders. The Making of Gratian’s Decretum. Cambridge Studies in Medieval Life and Thought, 4th ser. 49. Cambridge: Cambridge University Press, 2000. Wood, Allen. “The Final Form of Kant’s Practical Philosophy.” In Kant’s Metaphysics of Morals: Interpretive Essays, edited by M. Timmons, 1–22. Oxford: Oxford University Press, 2002. von Wright, Georg H. “Deontic Logic.” Mind 60 (1951): 1–15. Zuckert, Michael P. Natural Rights and the New Republicanism. Princeton: Princeton University Press, 1994.

Index

Abelard, Peter, 50, 65–68; Ethica, 66 Achenwall, Gottfried, 128, 134, 307, 320–25, 333–34, 338, 346, 351; Prolegomena iuris naturalis, 321 Ad conditorem. See John XXII adiaphora, viii, 3–6, 9, 13, 15–16, 65–68, 73–74, 85, 88, 110, 116–21, 129–32, 146, 157–90, 199, 202–4, 226–27, 265, 281, 294–95, 301, 311, 319–23, 330–31, 333–34, 348, 357–58 Adiaphorist Controversy, 74, 88, 158–65 admonition, 14, 17, 177 Admonition Controversy, 158, 165–71, 177 “Admonition to Parliament, An,” 165–67 Adrian I, pope, 107 Alanus, 27–29, 54–55, 106 Albertus Magnus, 67, 153 Alexander III, pope, 148 Alexander of Hales, 57–58, 144n6 Ambrose, 35 Anabaptism, 166 Andreae, Johannes, 93–94, 142–56, 213, 293–94 Anglicanism. See Church of England Animal est substantia, 47 Aquinas, Thomas, 21, 27, 50, 67–91, 98, 105, 117, 124–25, 144, 146, 152n27, 171, 173, 175–80, 182, 190, 193–95, 197–99, 201–5, 207, 245–46, 257–58, 271, 299n25, 308–9, 312–13, 316–17, 334, 357; Summa theologiae, 70, 72, 81, 87–88, 309 Aristotle, 34, 52, 54, 72, 75n14, 85–87,

124, 132, 151–53, 155, 181, 271, 288; Ethics, 72, 132, 151–53 Augsburg Interim, 161–62 Augustine, 3, 7–9, 13, 32n52, 33, 40–41, 45, 56, 58–59, 61–63, 66, 73, 75n14, 96, 98, 102, 124, 144, 148, 151–52, 177, 238, 245n94 Barbeyrac, Jean-Jacques, 234n60, 276n13, 291–303, 320, 333, 350 Benedict XII, pope, 99 Bentham, Jeremy, 305 Bernard of Compostella, 36–37 Bodin, Jean, 191 Bonaventure, 120n60 Book of Common Prayer, 166 Bracton, 186 Brandt, Reinhold, 326, 328, 334 Brett, Annabel, ixn4, 134n31, 217 Burlamaqui, Jean–Jacques, 291, 298– 303, 350; Principles of Natural and Political Law, 298–99 Bynum, Caroline, xii Calvin, John, 171, 187 Calvinism, 216, 225, 227 canon law, vii–viii, 1, 6–7, 9, 13, 15–47, 49–54, 55n55, 61, 63, 65–66, 68, 87– 90, 93–94, 98, 101, 106, 108, 113, 120n60, 124n7, 142–56, 175, 184, 194, 197, 199, 201–2, 205, 221, 238, 239n75, 258, 293, 294, 317, 324, 329, 350, 356–57. See also Decretists; and individual canonists

  373

374  Index Cantor, Peter, 144n6 Cartwright, Thomas, 165–71, 177, 180– 84, 187; Reply to the Answer, 165; Second Reply, 165, 170 charity, 13, 151–52, 244–46 Charles I, 252, 290 Charles V, 161 Chesterton, G. K., 358 Christian Letter, A, 182, 184 Chroust, A. H., 217 Chrysippus, 6 Church of England, 165n22, 185–86, 189, 193, 253 Cicero, 3–6, 9, 13, 23–24, 34, 58, 65, 85, 226, 239, 241; De finibus, 4–5; De inventione, 4, 24; De officiis, 5–6; De republica, 4 Code of Justinian. See law, Roman coercion, 55, 62, 123–26, 175, 203, 276, 283, 292, 335, 339, 344–48, 352–53 Comestor, Peter, 144n6 concession, 10–12, 41–42, 56–58, 62– 65, 146, 204–6, 212, 213, 258, 292– 93, 356 contract, 14, 143–45, 147–50, 152–55, 236, 253–54, 258, 267–72, 288–90, 294, 315, 320, 324, 339, 357 Council of Trent, 161 Council of Vienne, 144; Ex grave, 144–45 Counter-reformation, 192 crime, 65, 84n50, 148; punishment of, 209, 221 Cum inter. See John XXII Darjes, Joachim, 307, 311, 317–20, 333 d’Azeglio, Luigi Taporelli, 317n38 Decalogue, 11, 53, 74, 79, 105, 110, 139–40, 219, 358 Decretists, 1, 12n27, 15–47, 53, 61, 98– 99, 102, 105, 150 Decretum. See Gratian Defensor pacis. See Marsilius of Padua demonstratio, 10–11, 22–31, 35–37, 47, 52–54, 56, 61 d’Entrèves, Passerin, 173, 178 deontic logic, 127–36 de Soto, Domingo, 285n43 de Vitoria, Francisco, 192, 194, 209–10, 250, 351 Digest. See law, Roman

dispensation, 14, 37, 42, 58, 65, 201 Distinctio Lex Naturalis, 44 divorce, 7–8, 12, 17, 21, 40–41, 43, 45– 46, 55–56, 57, 63–65, 71–72, 146, 148, 177–78, 201, 294 dominium, 98. See ownership Ecce vicit Leo, 25–26 emperor, 46, 93, 103–9, 123, 150, 269 Enlightenment, 305–54 Ex grave. See Council of Vienne Exiit. See Nicholas III fas, 22–23, 27, 29–33, 36, 44–45, 61–62, 99–100, 150 Filmer, Robert, 285, 324 Finnis, John, 219 Flacius Illyricus, Matthias, 163–65, 169, 183; On the True and False Adiaphora, 163–64 Flickschuh, Katrin, 334 Forte, Paul, 178 Fortescue, John, 252, 255; De laudibus legum Angliae, 255 Franciscan Order, 58n15, 93, 95–104, 115, 119; poverty dispute, viii, 93, 95, 97–104, 108, 115, 117, 119, 123, 126– 27, 136–42, 222, 236, 285, 357 French Revolution, 305, 317n38, 328, 355 Garcia, Fortunius, 206–7 Gilby, Thomas, 70n4, 309 Giles of Rome, 120n60 Glossa Palatina, 30 Gratian, 1, 12n27, 16–23, 37–41, 46, 49– 50, 53, 60–61, 66, 73, 88, 235, 250; Decretum, 1, 15, 16n1, 17–19, 21–24, 29, 32n52, 35–36, 38n68, 39–40, 41n74, 45–47, 58–59, 73, 88, 89n62, 98, 102, 104, 107–8, 113–15, 146, 198n13, 205, 212, 235, 250 Gregor, Mary, 326n1, 328, 346 Gregory I (the Great), pope, 34, 37–38, 40, 98, 146, 148 Gregory of Rimini, 196 Grosseteste, Robert, 153, 155 Grotius, Hugo, x–xi, 43, 215–47, 249–50, 252–53, 258–63, 266, 268, 275, 277– 81, 285n43, 286, 292–94, 295n13,

Index  375 298–300, 312, 318n40, 320, 351, 357; De imperio, 225–28; De iure belli et pacis, 216–17, 228–47, 258, 262, 293; De iure praedae, 216, 218–25, 228–29; Mare liberum, 217, 252 Guido de Baysio, 106n27 Hillerdal, Gunnar, 173–74 Hobbes, Thomas, ix, 249–50, 275–77, 287, 289, 303, 338, 356 Hohfeld, Wesley Newcomb, 33, 103, 303 Holmes, Oliver Wendell, xi Hooker, Richard, 88, 157–58, 171–90, 193, 227, 240n76, 253, 357; Of the Laws of Ecclesiastical Polities, 172–73, 178, 185 Hruschka, Joachim, 128, 134, 141, 321, 323, 333–34 Hugh of St. Cher, 67 Hugh of St. Victor, 9–13, 15–18, 23– 24, 40–41, 53, 58, 62, 66, 117; De sacramentis, 9–12 Huguccio, 21–23, 26–27, 28n36, 32, 34–36, 39, 41–43, 53–55, 90n67, 238n73, 329, 330n7, 350, 357; Summa Decretorum, 21 Huguenot, 291, 297–98. See also Calvinism Hume, David, 305, 347, 354–55 Hunter, Ian, 305 indifferent acts. See adiaphora indulgence, 14, 17–18, 41, 56–58, 65, 238n73, 240n76 Institutes. See law, Roman Isidore of Seville, 19–20, 21n18, 29, 33, 46–47, 58, 61–62, 73, 89, 98, 100– 102, 105–6, 201, 212 ius: definitions, ix, 98, 126, 133, 231, 258, 319; as law, 29, 32, 32, 100, 126, 133, 137, 150, 195, 206–8, 231–32, 301; as permissive law, 127, 133, 137, 258, 356; as right, 29, 133, 137–38, 194–95, 206–8, 231–32, 275, 301, 311–13, 316–17, 319–20 ius gentium: possible meanings, 210–11, 260. See also law, international ius naturale, ix, 21–22, 27, 36, 44–45, 52, 101–2, 124, 207–8, 315, 329. See also law, natural

ius utendi, 97–98 Ivo of Chartres, 9, 12–18, 29, 56; Prologus, 12–14 Jacques de Révigny, 49n1 James, apostle, 188 James I, 255 Jesselin of Cassange, 106n27 Johannes Monachus, 258 Johannes Teutonicus, 36, 43, 47; Glossa ordinaria, 47, 98 “John.” See Summa Halensis John XXII, pope, 93, 95, 97–101, 106, 117, 119, 123, 137–38, 142, 222; Ad conditorem, 97, 222n22; Cum inter, 97; Quia quorundam, 97, 222n2; Quia vir reprobus, 99–100 John of la Rochelle, 57 Joseph II, 328 Judaism, 181, 235, 240, 263–72, 295; ceremonial law, 7, 11–12, 19, 111–12, 114, 146, 159; divorce, 8, 40, 57, 177– 78; usury, 64, 143 jus. See ius and related entries justice, 6, 23, 84, 152, 202, 232, 243– 46, 253, 276, 312, 326n1, 327, 349; civil, 85, 123, 151, 155; divine, 56–57; natural, 54, 155 Justinian, 21, 34, 46, 138, 143n4, 149, 154, 250. See also law, Roman Kant, Immanuel, viin1, viii, 274n3, 306–8, 321, 325, 326–57; Critique of Practical Reason, 327; Critique of Pure Reason, 327–28; Doctrine of Right, 308, 328, 330–31, 334, 343–44, 347–48, 353–54; Doctrine of Virtue, 337n35; Metaphysics of Morals, 333; Theory and Practice, 353; Toward Perpetual Peace, 332 Kaufman, Matthias, 343 Kempshall, Matthew, 153 Kuttner, Stephan, 155 law, civil, ix, 25–26, 33, 112, 123, 125, 143–45, 147–56, 186, 200–203, 209–11, 219–20, 253–54, 256–59, 264, 269–70, 276n10, 280, 282, 294, 318, 330. See also law, positive; law, Roman

376  Index law, divine: accessibility to reason, 7, 184, 196; content of, 59–60, 79, 125– 26, 138–39, 143, 148, 159–60, 175, 260, 263; counsels and commands, 7–12, 14, 16–18, 25–26, 31–32, 37, 44–45, 53–54, 56, 74, 80, 107, 113, 132, 138–39, 164, 167–68, 170–71, 174, 177, 180–82, 189, 199–200, 219, 223–24, 226–27, 231, 238–41, 260n20, 267, 270–71, 289, 294–95, 311n16; freedom, 109–11, 113–14, 180; morality, 19, 29–31, 79, 99–100, 196, 276; permissive, 8, 19, 30, 43, 56–57, 99, 111, 138, 148, 157, 163, 171, 180, 184–85, 189, 202, 226, 239–40, 250n2, 270, 294; positive, 12, 18–19, 73–74, 88, 226–27, 238, 241, 267; relation to canon law, 148, 150– 51, 239n75; relation to natural law, 7, 19, 25, 29–31, 44, 46–47, 58–60, 63, 89, 96, 104, 124, 147, 150, 175–76, 179, 184, 196–97, 219, 223–24, 231, 233–35, 239–40, 253–54, 259, 263, 266, 269–71, 276, 278, 286; relation to positive law, 29, 31–32, 35, 101, 124, 138, 140, 143–44, 155, 175, 184, 187, 199, 226–27, 254, 267; varieties of, 16, 267 law, evangelical, 109, 111–12. See also law, divine law, human. See law, positive law, international, viii, 246, 258; ability to alter natural law, 6, 25, 34–35; content, 212, 260; grounding in natural law, 260–61; grounding in will of nations, 229–30, 237; as positive law, 211, 243; and reason, 211, 230; and rights, 114. See also ius gentium; law, natural law, Mosaic, 32, 63, 112, 201, 240. See also Decalogue law, natural: application of, 81–82; commands, 27–28, 196–97, 253–54, 266–67, 278, 311, 350; divisions of, 9–11, 16, 19–28, 36, 44–47, 52–53, 58–59, 61–63, 79, 82–83, 89, 98, 100, 103–7, 113–15, 124, 145, 175–77, 185, 196–97, 207–8, 218–19, 224, 257–58, 271, 318; human freedom, 6, 20, 34–35, 37, 59, 70, 79–82, 86–

87, 90, 96, 100, 105, 110, 112–13, 115–16, 179–82, 217, 220, 226–27, 257, 264–67, 272, 280–81, 292–93, 310, 331, 356; human fulfillment (happiness), 10, 60, 76–78, 299, 308– 9, 315–16, 320, 323; and international law, 20, 34–35, 106, 112, 197, 210– 13, 220, 229, 235, 237, 239, 243, 261, 267, 282; mutability, 61–62, 90, 104– 7, 260; in primordial/primitive state, 90–91, 221, 277–78, 280, 283–84, 286–88, 292, 315–16, 323–24, 338; rational or voluntarist, 3, 7, 20, 26, 52, 59, 78–79, 85, 89–91, 96, 104– 5, 108, 171, 173–76, 179, 181, 196, 204–5, 223, 229, 231, 233–34, 259, 266, 274–75, 277–78, 284–86, 288, 297, 299, 306, 308, 327–28; sociability as basis for, 79–81, 229, 278n19, 284, and virtue, 244–47. See also ius naturale; law, divine; law, positive; permissive natural law; preceptive natural law law, permissive, 13–21, 26–27, 31–32, 40–43, 46, 55–56, 59, 63–65, 68, 71– 74, 77, 80, 86–87, 93, 98–99, 102, 105, 123, 126–42, 145–50, 153–56, 173n5, 178, 181, 194–203, 213, 231– 33, 235, 242, 246, 249–50, 259–60, 262, 264–70, 279–83, 292–97, 299– 303, 307, 311, 318, 320–25, 328–38, 343n56, 344–45, 348–50, 357; divine, 8, 19, 30, 43, 56–57, 99, 138, 157, 163, 171, 180, 184–85, 189, 202, 226, 239–40, 250n2, 270, 294; evangelical, 111; human, 16, 28–29, 99, 138, 142, 145, 150, 153, 185, 201–3, 224, 227, 268, 294; ius gentium, 212–13, 228–29, 235; natural, vii–x, 1, 7, 9, 13, 18–34, 36–39, 43–47, 49, 53–55, 58–61, 63, 65–66, 68–71, 74, 80–81, 86–91, 93– 94, 98–100, 102–8, 110, 115–16, 121, 142, 145, 150, 156, 158, 172, 175–80, 182–85, 188–89, 191, 193–94, 196– 99, 202–24, 228–29, 233–36, 238, 249–53, 257–58, 260–72, 274, 279– 87, 290–91, 293–94, 297–98, 301–3, 306–20, 325–28, 330–32, 337–38, 344, 346, 348, 350n76, 353, 356–58. See also permissive natural law

Index  377 law, positive: authority of, 83–85, 185– 86, 227–28, 289, 295; content of, 115, 125–26, 267, 294; limitations on, 108–21, 126, 178, 202, 226–27, 289–90, 332n14; permissions of, 21, 28, 42, 73–74, 81, 117, 145, 155–56, 185, 194, 200, 203, 224, 227, 238, 246, 280–81, 293–94, 302–3, 331; possible alteration of natural law, 30, 62, 82–83, 88–89, 98–99, 102–3, 115, 151, 205–9, 257, 259–60; relation to law of nations, 211, 243; relation to natural law, 20–22, 24, 26, 28–33, 54, 61–62, 79, 82–83, 85, 94, 98, 105– 6, 124, 142–45, 149–51, 150, 155– 56, 179, 185–86, 199, 210, 227–28, 236, 256–57, 293, 295, 298, 348; and obligation, 268–69, 289; punishment, 65, 125–27, 151–52, 154, 198, 201– 2, 221, 223–26, 239, 264n33, 279, 318, 332n14, 358; usage, 19–20, 31; variability of, 81, 186; and will of the legislator, 123–27, 195–96, 266, 275– 77, 293–95, 300–303. See also law, civil; law, divine; law, roman law, preceptive, 9–14, 16–17, 19, 24, 31–32, 35–36, 127, 130–31, 133–34, 198, 200, 202, 232–33, 250, 264–65, 307n1, 311, 314, 318, 322; divine, 111–12, 114, 126–27, 138–39, 159, 185, 240, 259, 270–71; human, 61, 126–27, 138, 185, 211–12, 250; ius gentium, 212–13; natural, vii–viii, 20, 23, 25–27, 31, 35–36, 45, 46, 52–54, 58, 60, 62–63, 69, 71–72, 74, 78–84, 88, 98, 100, 103–4, 177, 185, 196–97, 202–3, 205–8, 211, 224, 228, 257–58, 260, 263, 267, 270–72, 290, 310, 313, 320, 329. See also preceptive natural law law, Roman, 6, 7, 9, 15, 17, 20, 24, 28, 30, 33–35, 46–47, 49, 52, 63, 84–85, 87, 138, 140, 143, 145–47, 149–51, 154, 197–98, 210–11, 221, 250, 258, 261, 264, 279–82, 318, 325, 336, 340, 349–50; Code of Justinian, 154; Digest, 21, 85, 138, 235, 250, 279, 282, 318; Institutes, 6, 34, 210 Leibnitz, Gottfried, 276, 306, 308–9 Leipzig Interim, 161–63

Leo VIII, pope, 107 Leo XIII, pope, 317n38 lex, ix, 123–127, 194–95, 207–8, 224n27, 231, 275, 311, 313, 320, 326n1, 356 lex talionis, 63 libertarianism, 84 libertas. See liberty liberty, ix, 20, 23–24, 33–37, 46, 60, 105, 180–81, 204–9, 250n2, 263–65, 275, 280, 292–93, 295–96, 315; human, 6, 20, 24–25, 61, 204, 206, 209, 217; “law of liberty,” 109–16, 313, 356; “liberty right,” 103, 302–3; moral, 319–20; and natural law, 25–26, 62, 89–90, 275, 300, 319, 321, 324; religious, 163, 169, 298 licitum, 23, 44–47, 62, 100, 133, 134, 137, 311, 329, 333–34 Locke, John, 173, 221, 289, 292, 297, 315, 345, 349n71, 352; Letter on Toleration, 297; Second Treatise on Government, 221 logic, 167, 171, 321, 356. See also deontic logic Lollardy, 166 Lombard, Peter, 49, 55–56, 66–67, 71, 73n8; Sentences, 49, 55–56, 71 Ludwig of Bavaria, 93, 98–99, 104, 123 Luther, Martin, 160–61, 171, 240n76, 245n94 Lutheran Formula of Concord, 164 Lutheranism, 160–66, 274, 291 Mandeville, Bernard, 153 Marenbon, John, 58 Marriage, x, 8–9, 14, 17, 25, 39–41, 46, 55–57, 80, 161, 164, 197, 212, 227, 242 Marsilius of Padua, 93, 122–42, 165, 173, 213, 226n34, 266, 323; Defensor pacis, 122–23, 126, 130, 136–37, 140– 41, 173n5 Maurice, elector of Saxony, 161 Maurice, prince of Orange, 216 McGrade, Stephen, 174–75, 178, 179n22 Melanchthon, Philipp, 160–64 Michael of Cesena, 97–99, 106 Molina, Luis, 209n46 monarchy, 123, 185–87, 191, 288 Moore, Michael, 135

378  Index Munz, Peter, 173 Murphy, James, 84 nature, 3–4, 10, 19, 22n20, 23–25, 34, 44–45, 52, 55, 60, 89–90, 112–13, 148, 174, 179–80, 182–83, 207–8, 222, 256, 288, 315; animal, 25, 44– 45, 52, 58, 79, 210–11, 263, 266–67; human, 81, 91, 171, 176, 179, 228– 29, 275, 277, 279, 288, 309–12, 353, 355, 358; state of, 55, 62–63, 105, 283, 287, 302–3, 331, 338–42, 345– 46, 351–53. See also law, natural Neoplatonism, 7 Nicholas III, pope, 97, 101–2, 119; Exiit, 97, 101–2 Nicholas V, antipope, 104 Nicholas of Cues, 141 Noachidae, 263, 267 270 obligation, 14, 28, 32–33, 47, 53, 61, 126–36, 141, 195–201, 206, 214, 220– 21, 223, 227, 229, 231–36, 239n74, 240, 246–47, 249–50, 253, 263–71, 275–84, 289–93, 296–303, 305–6, 309–24, 330, 333–37, 340–41, 350, 356–57 ownership, 26–30, 52–55, 61–63, 81, 88– 90, 97–98, 115, 137–40, 202–3, 205– 8, 221–23, 236, 261, 270, 275, 283– 86, 315–16, 327–28, 334, 338, 345, 350–51. See also possession; property Panaetius, 4–5 Papacy, 12–13, 46, 49, 100, 104, 107–20, 123, 126, 136n36, 165, 240n76 Parliament, 166, 185–86, 251–53, 255, 257, 290 Paucapalea, 19, 30 Paul, 7–9, 14, 33, 42, 44–45, 57, 67, 111, 159, 164, 169–70, 177, 180–83, 197, 242, 254, 269 permissions: with approbation, 64n29, 180–81, 188, 294, 301; imply precept (obligation), 198, 201, 206, 212–13, 224, 233, 265, 265, 270–71, 280, 296, 370n1, 313–14; permission of evil, 37–43, 56–57, 64, 73, 145–46, 163, 177, 199, 200, 204, 238–39, 294; positive and negative, 199–202, 204,

206–8, 212–13, 224, 233, 266, 294– 95, 357; remission of guilt, 42–43, 56, 71, 146, 201, 240, 332n14, 357; varieties of, 41–43, 56–57, 65, 146– 47, 153–54 permissive natural law: and adiaphora, 65–66, 116–21, 178, 180, 202, 234, 265, 281, 294–95, 319, 348; absence of command or prohibition, 24–25, 44–45, 181, 187–88, 202–3, 213, 238, 294, 300, 318–19; and conflict of laws, 22, 24–26, 28, 30–34, 36–37, 47, 62–63, 68, 102–3, 154–55, 205–6, 283, 293–94, 330, 348, 350; exclusion (rejection) of, 47, 69, 71, 74, 77, 86–88, 274, 279–83, 290, 357; and freedom, 17–18, 24, 43–47, 60–61, 69, 72, 77, 81, 108, 176, 265–67, 280, 298, 300, 302–3, 309, 313, 318–20, 338, 356–57; and indulgence, 14, 16, 57, 65; and the law of nations, 197, 215, 282; mutability/immutability of, 61, 88–89, 204–5, 228, 260; permission of what is useful, 62, 90; and rights, 120–21, 236, 296–98, 302– 3, 310–14. See also law, natural perplexitas, 37–43 Porter, Jean, 80 possession, 98, 182, 283–84, 332– 33, 335–39, 341, 344–45, 350–51; common, 20, 24, 26–27, 32, 105, 338, 341; physical, 140, 284; private, 26–27, 219, 284, 324, 338, 347; provisional, 343 poverty. See Franciscan Order poverty, evangelical, 123, 126, 140 preceptive natural law: connection with permissive law, 265, 271–72, 290, 320; content of, 10–11, 20, 35–36, 52, 54, 79, 81, 83–84, 205–7, 211; as guide to conduct, 71, 77–78, 85–86; immutability of, 84, 260, 313; source of, 53, 78–79, 88, 196, 208. See also law, natural Prepositinus, 52–53 privilege, 33, 103, 119n58 prohibition, viii, 6, 9–14, 16–17, 21, 24–27, 30–33, 35–37, 40–47, 49n1, 52–54, 58, 61–62, 71–74, 80, 83–84, 89, 102–3, 109–11, 113, 117, 126–36,

Index  379 138–39, 143, 145, 149–52, 154–55, 157, 177–78, 196, 198–204, 207, 211– 13, 219–20, 223, 225–28, 234, 238– 39, 264–66, 268, 280–82, 295, 303, 310–11, 314, 318n41, 319, 321–23, 330–33, 345n64, 348, 358 property, 26–30, 61–62, 81, 84, 97, 98, 100–105, 115, 204, 220–23, 232, 236, 242, 245, 283–90, 323–24, 347, 353–54, 357; acquisition of, 28–29, 91, 222–23, 315–16, 327, 334, 337– 38, 341–43, 346, 348n69, 349–350; common, 20, 24–26, 28, 31, 35, 52, 54, 61–63, 88–90, 202, 206–8, 222, 228, 261, 283–85, 336–38, 347; individual, 7, 20, 24, 55, 88; private, viii, 20, 26, 28, 31, 46, 52, 54, 55n9, 61, 89–90, 101–2, 105–6, 112–15, 139, 204–9, 221–22, 228, 250, 261– 62, 270–72, 283–87, 297, 315–16, 324, 328, 334, 338, 345, 349–50; rights, x, 32, 97, 101, 114, 206–8, 219, 222, 236, 308, 315–16, 320, 328, 335– 38, 340–43, 346, 349, 351 prostitution, 42, 67, 73, 200, 243, 282, 348 Proudhon, Pierre-Joseph, 84 prudence, 71, 77, 85–86, 124. See also virtue Pufendorf, Samuel, 86, 91, 249–50, 273– 92, 296–300, 305–6, 308, 311–12, 318n40, 330, 333, 338, 350–52, 357; On the Duty of Man and the Citizen, 273; On the Law of Nature and of Nations, 273 Puritanism, 165–66, 169, 174, 182–83, 185, 187, 193 Quia quorundam. See John XXII Quia vir reprobus. See John XXII Reformation, viii, 141, 189, 191–92 Remonstrants, 216, 225 Res nullius, 140, 261, 315–16, 320, 323– 25, 328–29, 336 rights, ix, 29, 103, 111–14, 117, 120n60, 121, 133–34, 137–38, 161, 194–95, 200–201, 206–8, 218–20, 225, 227– 28, 231–32, 240–41, 243–45, 252– 54, 280, 283–86, 290, 293–96, 299– 303, 307n1, 313–16, 328, 340–44;

civil, 99, 100n10, 101–3; defense, 20, 220, 237–38, 289, 297–300; election, 104, 107–8; liberty, 208, 213, 272, 275, 310, 315, 335; marriage, x, 33, 213; moral faculty, 313, 320; natural, viin1, viii, 33, 91, 100n10, 101, 103, 113, 156, 206–8, 215–16, 219, 224– 25, 252, 272, 291–92, 296–98, 303, 309–12, 314–17, 319–20, 324, 332, 349–50, 355, 357; objective, 312–13, 319; positive, 207; property, x, 19, 29–32, 97, 101, 114–15, 140, 208, 212, 219, 222, 236, 308, 315–16, 320, 323. 328, 332, 335–44, 346–47, 349–51; punishment, 220–21, 226; self-preservation, 299–300, 315, 324; subjective, 133, 299, 312–13, 319; use, 98–101, 222–23 Ripstein, Arthur, 348n69 Rolandus, 16–17; Stroma Rolandi, 16 Roman Catholicism, 14n32, 159–61, 166, 173, 182, 187, 189, 192, 240n76, 308, 316, 317n38, 355 Rousseau, Jean-Jacques, 305, 340, 343, 345, 352 Rufinus, 23–25, 35, 38, 53; Summa, 23 Rule of St. Benedict, 42 Saastamoinen, Kari, 296 Schneewind, J. B., xi Selden, John, vii, 86, 236, 249–75, 286, 289–90, 292–93, 301, 320, 357–58; De jure . . . iuxta disciplinam Ebraeorum, 252, 263–72; on De laudibus legum Angliae, 252, 255, 258–59; Jani Anglorum facies altera, 272; Mare clausum, 252, 257–63, 266; Table Talk, 253 servitude. See slavery Sicardus, 29–30 Simmons, John, 91, 348n69 sin, 8, 27, 37–39, 41–42, 60, 76, 110, 111n34, 140, 148, 151–53, 171, 180– 81, 196, 199–200, 202–3, 239; and divorce, 56–57, 64–65; and marriage, 56–57; original, 9; and property, 26– 27, 32, 52, 115, 140, 349; and slavery, 33–36, 62, 75n14 slavery, 6, 20, 24–25, 33–37, 46, 62, 75, 90, 99, 111–12, 181, 206, 208–10, 228, 235, 283

380  Index Smith, Adam, 305, 343 sola scriptura, 164 Stephen of Tournai, 16–18, 29–30, 52 Stoicism, 3–7, 13, 34, 46, 65, 159, 177n18, 241 Stroma Rolandi. See Rolandus Suarez, Francisco, viin1, x, 91, 191, 193– 215, 217, 224, 229–33, 236, 239n74, 241n79, 246–47, 249–50, 258, 260, 265–67, 268n43, 269–70, 275, 279– 80, 285n43, 286, 288–89, 294–96, 299, 313, 320, 333, 350, 352, 357; Tractatus de legibus et legislatore Deo, 194–95, 204, 217, 224, 229 Summa Antiquitate et tempore, 17 Summa Duacensis, 25 Summa Elegantius, 25, 31–32, 38 Summa Et est sciendum, 30 Summa Fratris Alexandri. See Summa Halensis Summa Halensis, 50–51, 57–65, 67 Summa Lipsiensis, 38–39, 44–45 Summa Monacensis, 20–21 Summa Tractaturus magister, 25 Supererogation, 116, 135, 182, 240, 244–45, 356 Talmud, 251–52, 263 Ten Commandments. See Decalogue Tertullian, 181 Theology, ix, 9–14, 27, 39–40, 43, 49–91, 95–96, 98, 107, 117–18, 120n60, 144, 145n8, 148, 153, 155, 16–62, 171, 182n35, 192–94, 196, 199, 216, 223, 230, 238, 240–41, 244n88, 247, 265, 267, 274, 285, 291 Thirty Years War, 273 Thomann, Marcel, 316–17, 319n45 Thomasius, Christian, 306, 307n1 Thomism, 71n5, 75, 173, 193, 316–17 Thompson, Augustine, 29 Thompson, Cargill, 178

Tuck, Richard, viin1, 217, 231, 251n2, 253, 264n33 use, 98–103, 117, 137–39, 207–8, 210, 223, 236, 284, 285n43, 286–87, 313, 315–16, 324, 351; use of fact, 97–98, 137–38, 222 usury, 64, 143–55, 243, 282, 294, 318, 348–49 usus. See use Vazquez, Fernando, 219 Villey, Michel, viin1, 101n11 virtue, 3–4, 6, 10–11, 51, 70–71, 74–77, 79–80, 85–86, 151–53, 182, 199, 203, 243–46, 294, 316; supererogatory, 112–14, 240. See also charity; prudence; supererogation van Ittersum, M. J., 217–18, 224 vengeance, 226 Voltaire, 305, 355 von Wright, Georg, 128–30, 132 war, 43, 220–21, 224, 228–47 Whitgift, John, 165–71, 177–78; Answer to the Admonition, 165; Defense of the Answer, 165 William of Auxerre, 50–58, 61, 64–65, 67, 144n6, 238n73 William of Ockham, ix, 88, 93, 95–123, 136n36, 142, 165, 266n39, 268, 285– 86, 357; An princeps, 109–13, 116; Breviloquium, 109, 112–13, 116–17; Contra Benedictum, 109; De imperatorum et pontificum potestate, 118–19; Dialogus, 104–9, 113–14; Opus nonaginta dierum, 100, 104, 115, 119–20 Wolff, Christian, 296, 299n25, 306–17, 320–21, 323–24, 357–58; Institutiones, 309; Jus naturae, 315 Zagorin, Perez, 231–32

Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 was designed in Meridien and composed by Kachergis Book Design of Pittsboro, North Carolina. It was printed on 60-pound Natures Book and bound by Thomson-Shore of Dexter, Michigan.