|Natural justice: natural justice is an expression for a philosophical or theological justification of legal principles as opposed to a human implementation of law by constitutional, i.e. democratically legitimate, organs. See also right, laws, society, history._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. |
William of Ockham on Natural Justice - Dictionary of Arguments
Gaus I 346
Natural justice/natural right/natural law/Ockham/Kilcullen: In his political writings Ockham makes much use of the theory of natural law* which originated in ancient philosophy ** and had been taken up again by medieval theologians and lawyers.
Thomas Aquinas: The essential idea of the theory, as Thomas Aquinas and Ockham hold it, is that the human mind, reflecting on and analysing human experience, can 'see' the truth of various fundamental moral norms, which are thus 'self-evident', not in need of proof, and too fundamental to be capable of proof (Thomas Aquinas, Summa, 1-2, q. 91, a. 3, and q. 94, a. 2). ***
Ockham distinguishes several kinds of natural law (1995(1): 286-93), including natural laws 'on supposition': supposing certain contingent facts, natural reason sees intuitively that certain kinds of action are on that supposition morally right or wrong. Given the consequences of Original Sin, human communities have a natural Right **** to establish institutions of government and property; given the establishment of those institutions, individuals have a natural right to acquire property (or to live without property, relying on the generosity of those who have property); given that some thing has become some person's property, others have a natural duty not to use the thing without that person's permission; and so on.
Christianity: The Christian community's right to depose a heretic pope and choose a replacement is, for Ockham, such a natural right, in the same category as the right of any 'people' to depose a tyrant and establish a just regime. ****
Human kind: 'Natural' rights belong to human beings as such, to pagans as well as to Christians; thus the powers of the pope and clergy are limited by lay rights that pre-exist Christianity
Gaus I 347
(1992(2): 51-8; not only natural rights but also rights under human positive law limit the pope's power). >Original Sin/Ockham, >Natural Justice/Hobbes.
* This has sometimes been regarded as an inconsistency on Ockham's part, in the belief that his non-political writings advance a 'divine command' theory of morality. For a rejection of this interpretation see Kilcullen (2001 a)(3).
** It underlies Aristotle's discussion of slavery (Politics, 1.6) and is explicit in the Roman law texts (e.g. Justinian, Institutes, 1.2.2: 'according to natural law, all men were originally born free'). Cicero gave clear expression to the idea of natural law, e.g. in Republic, Ill.xxii.33 (...).
*** The argument in the latter text is not meant to prove laws of nature, but to order them. For Ockham see the quotations in Kilcullen (2001a). (According to Ockham some natural laws are not fundamental but derived; 1995(1): 273—4.) The theory as held by Aquinas and Ockham is a species of what Sidgwick called 'intuitionism' (1930(4), Book l, ch. 8, esp. 101).
**** That is, a right implied by natural law. The concept of a right is not found in the work of Thomas Aquinas, but it was common in the works of other medieval lawyers and theologians. On the history of the notion of natural rights, see Tierney (1997)(5).
***** In reaction against conciliarist parallels between Church and political society, Cajetan emphasized that the Church is not a 'free community' with the power to erect its own government, but is subject to Christ's commands (see Burns, 1991(6); Burns and Izbicki, 1997(7)). Ockham also recognized that Christ's commands had established a papal monarchy, but nevertheless held that the Christian community could vary the constitution of the Church at least for a time, arguing that necessity and utility may make exceptions even to Christ's commands (see 1995(1): 171-203, especially 181-90). The decree Haec sancta of the Council of Constance can be interpreted as relating to a situation of necessity.
1. William of Ockham (1995) A Letter to the Friars Minor and Other Writings, ed. Arthur Stephen McGrade, ed. and trans. John Kilcullen. Cambridge: Cambridge University Press.
2. William of Ockham (1992) A Short Discourse on the Tyrannical Government Usurped by Some Who Are Called Highest Pontiffs, ed. Arthur Stephen McGrade, trans. John Kilcullen. Cambridge: Cambridge University Press.
3. Kilcullen, John (2001a) 'Natural law and will in Ockham'. In John Kilcullen and John Scott, trans.,
William of Ockham, Work of Ninety Days. Lewiston: Mellen, 851-82.
4. Sidgwick, Henry (1930) The Methods of Ethics, 7th edn. London: Macmillan.
5. Tierney, Brian (1997) The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Chumh Law 1150-1625. Atlanta: Scholars.
6. Burns, J. H. (1991) 'Conciliarism, papalism, and power, 1511-1518'. In Diana Wood, ed., The Church and Sovereignty c. 590—1918: Essays in Honour of Michael Wilks. Oxford: Blackwell for the Ecclesiastical History Society.
7.Burns, J. H. and Thomas M. Izbicki, eds (1997) Conciliarism and Papalism. Cambridge: Cambridge
Kilcullen, John 2004. „Medieval Politial Theory“. In: Gaus, Gerald F. & Kukathas, Chandran 2004. Handbook of Political Theory. SAGE Publications_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Gerald F. Gaus
Handbook of Political Theory London 2004