Liberty and Law
The Idea of Permissive Natural Law, 1100-1800
Publication Year: 2014
Published by: The Catholic University of America Press
Title Page, Copyright Page
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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...
Part 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...
1. Early Sources: Stoic and Christian
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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 ...
2. Canonistic Jurisprudence
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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...
Part II. 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 ...
3. Parisian Masters
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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...
4. Thomas Aquinas
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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 ...
Part III. 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...
5. William of Ockham
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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 ...
6. Marsilius of Padua
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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...
7. Johannes Andreae
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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...
Part IV. 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 ...
8. Reformation Adiaphora: Lutherans and Anglicans
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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...
9. Richard Hooker
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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...
10. Francisco Suarez
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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...
11. Hugo Grotius
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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...
Part VI. 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...
12. John Selden
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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...
13. Samuel Pufendorf
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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...
14. Critics of Pufendorf: Barbeyrac and Burlamaqui
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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...
Part VII. 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...
15. Wolff to Kant
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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...
16. Kant: Permissive Law and Property
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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...
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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...
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Page Count: 400
Publication Year: 2014