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[25] Hohfeld on Ockham A Canonistic Text in the Opus nonaginta dierum Brian Tierney n Of course Wesley Hohfeld did not write about William of Ockham; but he could have done.1 Since Hohfeld originally published his fourfold classification of the meanings of the word ‘right’ in English law, his work has proved applicable in various other fields of study. Judith Thomson pointed out that Hohfeld’s argument could be useful in considering problems of moral and political philosophy. She noted that Hobbes’s concept of a right corresponded to Hohfeld’s ‘privilege’ or ‘liberty’. More importantly in the present context, Charles Reid has shown how Hohfeld’s analysis can be applied to medieval canonistic texts; he was able to present a full-scale Hohfeldian account of the various meanings of ius in thirteenth-century canon law.2 The purpose of the present inquiry is to ask whether Hohfeld might help us to understand an apparent anomaly in Ockham’s handling of a canonistic text in the Opus nonaginta dierum (henceforth OND). The text in question is the decree Exiit, promulgated by Pope Nicholas III in 1279 and included in the Liber Sextus of Boniface VIII (VI 5.7.3). The anomaly in Ockham’s work can be stated briefly at the outset. At one point in the OND, Ockham wrote that the Franciscans could sometimes use things by virtue of a natural right but that they did not have this right ‘except only at a time of extreme necessity’ (illud ius non habent nisi tantummodo pro tempore necessitatis extremae) and that outside the case of extreme necessity they did not have any right whatsoever. But a little further on he wrote that 365 1. W. N. Hohfeld, Fundamental Legal Conceptions (New Haven, CT 1923). The chapter on rights discussed below is a revised version of an article originally published in the Yale Law Review 23 (1913). 2. J. J. Thomson, The Realm of Rights (Cambridge, MA 1990) 49–50; C. Reid, ‘The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry’, Boston College Law Review 33 (1991) 37–92. the friars could use by natural right ‘however much they are outside a situation of extreme necessity’ (quantumcumque sint extra articulum necessitatis extremae).3 The two statements were both expressed emphatically but they seem flatly to contradict one another. In the following discussion I want first to consider Ockham’s argument in order to explain how the two apparently conflicting texts came to appear in his work, then to discuss Hohfeld’s classification of rights and its possible application to Ockham’s texts. Ockham and Natural Right Nicholas III’s decree Exiit presented a definition of Franciscan poverty that provided a starting point for the later controversies in which William of Ockham became involved . The pope first distinguished between ‘property, possession, usufruct, right of use, and simple factual use’; then he asserted that the friars had retained for themselves only this simple factual use and had renounced every other kind of relationship to temporal goods, including right of use (ius utendi). The pope explained that this factual use without a right came into play when the friars used anything by permission or license of another person. He also noted that the friars did not tempt providence by seeking to live in this fashion because by a ‘right of heaven’ (ius poli), available to everyone, they could take what they needed to sustain life in case of extreme necessity.4 These were all positions that Ockham would undertake to defend. The last point, about a right in extreme necessity, requires a little more explanation here since it became an important element in Ockham’s later argument. The issue had arisen in the canonistic works of the twelfth century because an ancient maxim, taken into Gratian’s Decretum, declared that by natural law all things were common. The decretists therefore had to explain how the existing system of private property, established by human law, could be justified. One solution, presented by the influential canonist Huguccio (c. 1190), argued that natural law did not actually prohibit the institution of private possessions, but required that they be shared with the poor in time of necessity.5 In the next few years the canonists developed from this position a further argument that a starving person who took food from a rich owner without his permis3 . Opus nonaginta dierum, in: Guillelmi de Ockham opera politica, ed. H. S. Offler (2 vols; Manchester 1974) 2.561...

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