Liberty and Law: The Idea of Permissive Natural Law, 1100-1800

17. Afterword

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. 355 356  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...