Liberty and Law examines a previously underappreciated theme in legal history―the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm of (...) human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government. Several kinds of permissive natural law were identified. Permission could be positive or negative, depending on whether it was specifically conceded by a legislator or only tacitly allowed. It could free from sin or merely remit some temporal punishment that was due. It could commend some conduct without commanding it or permit some evil without condoning it. Medieval canonists used the concept of permissive natural law to harmonize the discordant texts that they found in their sources; William of Ockham found it a powerful tool in his defense of Franciscan poverty against papal criticisms; for Richard Hooker it justified both the constitutional structure and the ritual practices of the Anglican church; John Selden used it to uphold the inviolability of contracts, most importantly the contract of government; Hugo Grotius made it a central theme in his treatment of the conduct permissible in waging war; in the eighteenth century Jean Barbeyrac and Jean-Jacques Burlamaqui associated the idea with the emerging doctrine of natural rights. In Liberty and Law, Tierney has presented us with a magisterial and provocative way of interpreting legal history. (shrink)

Contemporary philosophers sometimes present the complex relationships that can exist between permission, precept and prohibition within a given structure of law in a language of symbolic logic or in illustrative diagrams. Other modern scholars have pointed out that early formulations of the basic ideas they employ can be found in writers of the seventeenth and eighteenth centuries, including Leibnitz and Bentham and, especially, the German jurist Gottfried Achenwall. This article shows that the same structure of ideas was included centuries earlier (...) in the work of Marsilius of Padua, and that his argument too can be presented as a modern 'deontic hexagon'. It concludes with a discussion of how Marsilius' engagement with the contemporary dispute over Franciscan poverty helped to shape his teaching in this area. (shrink)

The papers collected in this volume fall into three main groups. Those in the first group are concerned with the origin and early development of the idea of natural rights. The author argues here that the idea first grew into existence in the writings of the 12th-century canonists. The articles in the second group discuss miscellaneous aspects of medieval law and political thought. They include an overview of modern work on late medieval canon law. The final group of articles is (...) concerned with the history of papal infallibility, with especial reference to the tradition of Franciscan ecclesiology and the contributions of John Peter Olivi and William of Ockham. (shrink)

According to one recent account, in the “preliberal epoch” before the seventeenth century people did not think of individuals “as possessing inalienable rights to anything — much less life, liberty, property, or even the pursuit of happiness.” The statement is not true, but it is excusable. Compared with the flood of writing on the classical rights theories of the early modern period, there has been only a thin trickle of work on medieval ideas concerning individual natural rights, or human rights (...) as we say nowadays, rights inhering in the human person as such. Some modern authors see the seventeenth-century rights theories as a radical departure from ancient and medieval ways of thought; they are content to explain the ideas of Hobbes and Locke and Pufendorf by reference to some aspect of the intellectual, political, or economic life of the seventeenth century itself. C. B. MacPherson, for instance, emphasizing economic factors, inaugurated a minor academic industry when he interpreted Locke's teaching that everyone had a property right in his own person as a reflection of the possessive individualism of early-modern capitalism. (shrink)