Abstract
This chapter has a twofold purpose. First of all, it considers the development of natural law moral theory and jurisprudence in the work of certain philosophers who followed Thomas Aquinas (ca. 1226–1274), including Roger Bacon (1214–1294), John Duns Scotus (1274–1308), John of Paris (d. 1306), Marsilius of Padua (1280–1342), and William of Ockham (1280–1347). Second, there follows an elucidation of the development of natural human rights theory. This deals with recent work in the history of human rights theory, arguing that subjective human rights have an earlier appearance in Western jurisprudence than previous scholarship suggested.
Sections 13.1–3 and 13.5–6 were written by Anthony J. Lisska, and Section 13.4 was written by Brian Tierney. All translations are by the authors unless otherwise indicated.
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- 1.
The important work of Moody 1975a, among others, offers original insights into the rise of science in the late-thirteenth and early-fourteenth centuries. There is some historical evidence that the condemnations in 1270 and 1277 by Bishop Stephen Tempier, the Archbishop of Paris, brought a chill to metaphysical and philosophy of religion efforts. He issued a set of prohibitions against holding certain philosophical propositions. While directed principally at various current interpretations of Aristotle, nonetheless several positions affirmed by Aquinas were included in this list. This less-than-friendly attitude toward ontological speculation forced philosophers to move toward empirical investigations of nature.
- 2.
The scholarly debate on the exact nature of voluntarism in Scotus is beyond the scope of this analysis. Nonetheless, Cross 1999, 89–95, argues that Scotus is not a divine command theorist. Williams 1998, 214, on the other hand, holds that in some sense Scotus’ moral theory is rooted in the voluntarism of a divine command theory. Ingham 1993, 128, notes that “the intricate dynamic between reason and willing constitutes the core of Scotist ethics.”
- 3.
Scotus refers often in these discussions to Augustine. This illustrates a common thread in historical discussions of Franciscan philosophers that they were much taken with the philosophical and theological analyses put forward by Augustine.
- 4.
Fuller 1964 distinguishes between procedural and substantive natural law. The former indicates the process by which a law is determined and promulgated by the person in authority. Fuller lists eight “rational principles” that a ruler must follow in order to pass a just and reasonable law. Substantive natural law, on the other hand, is the claim that a law is just only if it is in accord with the moral principles determined by human nature. This is often called the requirement for a “thick” rather than a “thin” theory of human nature. Aquinas’ account, discussed in Chapter 12 of this volume, is a substantive theory of natural law.
- 5.
For an extended discussion of the importance of John of Paris in the development of political theory, see Coleman 2000, vol. 2, chap. 3.
- 6.
Aquinas argued that practical reason is “ordained to do something” (quae ordinatur ad opus). This “something” is either the undertaking of an action, which is morality, or the producing of an object or artifact, which is the exercise of an art or a craft.
- 7.
All property comes from God through the act of creation. As Vicar of Christ on earth, by default the pope is the owner of all material goods. The pope permits the Franciscans to use property. That there appears to be a conceptual problem here with the pope being Vicar of Christ yet not being able to engage fully in the imitation of Jesus taught by Francis is not to be denied.
- 8.
Skinner 1990, 401, writes that Marsilius discussed this negative critique of papal power “with a boldness that won him instant excommunication and lasting notoriety.”
- 9.
Reportatio is a written record by persons who attended the lectures that Ockham gave on the last three books of the Sentences of Peter Lombard.
- 10.
This is what Veatch and Rautenberg 1991, 828, often call the “Euthyphro Principle.” They use this methodological principle to determine whether a philosopher argues for a strong sense of natural law based on a “thick” theory of human nature or a weaker sense of natural law based on either a good-reasons account or a noncognitivist position. A good-reasons account attempts to justify a moral argument by means of consistency of propositions. There is not an attempt to ground the argument in any fact of reality. A noncognitivist position, for example, emotivism, holds that a moral claim is nothing more than the expression of an emotion in what might be considered a moral situation; as such, these sorts of claims have no truth value.
- 11.
This is what Aquinas means by truth—a correspondence of idea and thing. In Summa Theologiae, Aquinas discusses the concept of truth in the following way: “Truth is defined by the conformity [adequatio] of mind and thing. Thus, to know this conformity is to know truth” (STh Ia.16.a.4).
- 12.
Adams 1999 may be the best overall account of both recent work and more traditional analyses on the relation between nature and moral theory in Ockham. In the end, Adams indicates how the role of the will is central to Ockham’s analysis of moral and political theory.
- 13.
Coleman (2000, vol. 2: 190) writes, “Ockham’s emphasis on rationally guided choice is central to what has come to be called his voluntarism […]. Right reason is an integral requirement of virtue and hence agents must intend to aim at what is most objectively rational.” However, “what is most objectively rational” is similar structurally to the concept of rational consistency proposed on a good-reasons theory; it is not the right reason of an essentialist natural law position.
- 14.
McInerny 1998 calls this sort of theory “natural law theory without nature,” where “nature” refers to a dispositional account of human essence.
- 15.
For a discussion of the limitations of such a strongly voluntarist good-reasons theory, see Lisska 1996, chap. 3, and Veatch 1985. Warnock 1967 offers an analysis of the good-reasons approach: Cruelty is not wrong because it is wrong, but because we decide that it is wrong. Warnock objects to this approach and writes: “[N]ot only […] [does the good-reasons approach hold that it is] for us to decide what our moral opinions are, but also that it is for us to decide what to take as grounds for or against any moral opinion. We are not only, as it were, free to decide on the evidence, but also free to decide what evidence is” (Warnock 1967, 47). Warnock’s objection to the good-reasons approach is that it has no referent to reality on which to ground a moral judgment. It is unclear whether Ockham ever gets beyond Warnock’s objection.
- 16.
Ludwig was elected by a majority of the German princes, but the pope refused to recognize the election as valid and excommunicated Ludwig in 1324.
- 17.
Brett 1997, 204, argues, however, that Bartolus importantly influenced later philosophers of law, especially the Spanish jurist Fernando Vazquez (b. 1512); Vazquez argues for an original absolute natural liberty. In fact, Vazquez argues that dominium is “a natural faculty [naturalis facultas] that permits someone to do something, unless this action is prohibited through force or by law” (Tuck 1979, 51).
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Lisska, A.J., Tierney, B. (2015). Philosophy of Law in the Later Middle Ages. In: Miller, F.D., Biondi, CA. (eds) A Treatise of Legal Philosophy and General Jurisprudence. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9885-3_13
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