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Liberty and Law - The Idea of Permissive Natural Law, 1100-1800 (Paperback)
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Liberty and Law - The Idea of Permissive Natural Law, 1100-1800 (Paperback)
Series: Studies in Medieval and Early Modern Canon Law
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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.
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