- Liberty and Law: The Idea of Permissive Natural Law, 1100-1800 by Brian Tierney
Brian Tierney's most recent monograph, Liberty and Law: The Idea of Permissive Natural Law, 1100-1800, continues a prolific and influential line of scholarship that challenges the notion of a substantial break between pre-modern and modern political and constitutional thought.1 Instead, Tierney argues for a continuity between the two periods, situating many of these precursors to modernity in the legal writings of the twelfth-century canonists. His Foundations of the Conciliar Theory argued that the conciliarist doctrine of papal power was grounded on constitutional principles formulated in earlier canonistic writings.2 In his Origins of Papal Infallibility, Tierney controversially located the seeds of the doctrine of papal [End Page 259] infallibility in theological discussions by the Franciscan order in the thirteenth century—not the medieval canonistic tradition.3 In his Crisis of Church and State, Tierney's introduction situates the Investiture Controversy as a study of the ideologies behind medieval papal power, which was part of 'a persisting tendency toward the emergence of constitutional forms of government'.4 Also in Foundations of the Conciliar Theory, and later in Religion, Law, and the Growth of Constitutional Thought, Tierney challenged the traditional dichotomy between communal-pre-modern and individual-modern mentalities, arguing that medieval notions of the corporation—for instance in communes, guilds, universities, collegiate churches, monastic houses, confraternities, etc.—was a model for large-scale government in church and state.5
The purpose of Liberty and Law, according to its author, 'is to present some illustrations of the history of an idea—the idea of permissive natural law',6 'to call attention to a persistent but neglected theme that … formed a significant part of the whole tradition of natural law thinking'.7 What is 'permissive natural law'? Tierney observes that it is one of the three parts constituting natural law, these parts being precepts, prohibitions, and permissions. Permissive natural law refers to behavior that is neither obligatory nor prohibited but permitted.8 In this way Liberty and Law builds on the project begun by Tierney in his The Idea of Natural Rights, in which he argued that traditional natural law gave rise to individual natural rights. A central part of Tierney's thesis in that earlier work was that Ius naturale meant both 1) a zone of human autonomy or sphere of licit conduct—that is, permissive natural rights—and 2) a faculty or power of [End Page 260] the individual—that is, subjective rights.9 Tierney located this important shift in the writings of the twelfth-century canonists, which in turn influenced subsequent thinkers up to and including Hugo Grotius. In Liberty and Law, however, Tierney notes that the concept of permissive natural rights (now called permissive natural 'law') is only peripherally about its relationship as species to the Ius naturale genus. It has many other applications, namely 'to assert individual rights or to defend absolute government', including such instances as the foundation of private property, sexual ethics, international law, the Franciscan poverty disputes of the fourteenth century, and the 'adiaphora' controversies of the Reformation era.10 Further, permissive natural law called attention to the intrinsic nature of law itself, since 'to assert that law could include free choice seemed contrary to the very nature of law itself … to impose obligation and so limit freedom'.11 In short, Liberty and Law extends the notion of permissive natural law first conceptualized in The Idea of Natural Rights beyond the context of rights to its political-philosophical and legal theoretical-jurisprudential contexts.
By way of outline, Liberty and Law comprises an introduction, sixteen chapters, an afterword, and a select bibliography. The structure is chronological and divided into seven parts, beginning with Part I (Foundations), which includes chapter 1 on the Stoic concept of 'adiaphora' or 'indifferent things', the early medieval Church Fathers, and twelfth-century theologians, and chapter 2 on twelfth-century canonistic jurisprudence. Part II...