In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.2 (2001) 301-312 [Access article in PDF] Kant on Property: The Problem of Permissive Law Brian Tierney In a pathbreaking article published in 1982 Reinhold Brandt called attention to the significance of the concept of permissive natural law in Kant's political philosophy. Brandt noted that Kant's "rightful concept of practical reason" or "permissive law of practical reason" was of fundamental importance (...) for understanding the whole theory of the Rechtslehre, and he complained that the issue had been virtually ignored in the recent secondary literature. 1 Since then others have taken up the theme, but it remains relatively neglected in the vast modern literature on Kant. In the work of Brandt and in some other recent explorations of this question a primary concern has been to relate Kant's doctrine to other aspects of his critical theory. Brandt himself, for instance, compared the "provisional" and "peremptory" rights mentioned in the Doctrine of Right with the "problematic" and "assertoric" judgments of the Critique of Pure Reason. The problem that I want to consider is rather different. In the following study I want to consider primarily the internal structure of the Doctrine of Right and specifically to ask whether Kant's appeal to permissive natural law served a constructive purpose in the theory of property that he presented in that work or whether it was perhaps subversive of the argument that he developed. 2 This will require [End Page 301] some discussion of the other usages of the idea of permissive law that we find scattered in Kant's later writings. In pursuing such an inquiry we encounter various difficulties and apparent anomalies in Kant's teaching. I want finally to suggest that we might understand those difficulties better if we were to situate Kant's work in a broader historical context than those that have previously been considered, bearing in mind that the concept of permissive natural law had been discussed by jurists and political philosophers for several centuries before Kant took up the argument. Kant on Property When approaching Kant's Doctrine of Right it may be salutary to recall a remark of Mary Gregor, the translator of the work and a sympathetic reader of it. "Kant has never been accused of underestimating his readers," Gregor wrote, "but he seldom treats them so harshly." 3 The difficulty of the work is compounded by the fact that the text as we have it is apparently in a mutilated condition, with some passages transposed from their original contexts. Any reading of such a text will be open to dispute; but it seems necessary to attempt at least an outline of Kant's doctrine and to mention some of its complexities if we are to understand the function of permissive natural law in the argument presented.Kant's purpose was to formulate a doctrine of property based on reason alone, a doctrine in which "abstraction is made from all spatial and temporal conditions." 4 The principles he deduced were intended to apply to anyone "merely because and insofar as he is free and has practical reason." 5 The whole subsequent argument revolved around these concepts of practical reason and human freedom. Kant began by presenting some basic propositions and definitions. Obligation, he wrote, was "the necessity of a free action under a categorical imperative of reason." And an action was permitted or licit when it was not contrary to obligation. This freedom of action was called a moral faculty (facultas moralis). 6 According to Kant, the only innate right inhering in all persons was a right to freedom (defined as "independence from being coerced by another's [End Page 302] choice") insofar as this freedom could coexist with the freedom of all others. 7 A corresponding universal law of Right established the rule: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law." 8External laws imposed by another evidently did hinder one's freedom. Kant therefore held that a person was... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.3 (2001) 381-399 [Access article in PDF] Permissive Natural Law and Property: Gratian to Kant Brian Tierney In his Doctrine of Right Kant set out to formulate a theory of property that would be based on purely rational argumentation, that would abstract "from all spatial and temporal conditions," and that would be applicable to any person, "merely because and insofar as (...) he is free and has practical reason." But from the time when the work first appeared Kant scholars have found many difficulties in the teaching that he presented. Many of them relate to the idea of permissive natural law that Kant introduced at a key point to his argument.In a previous, complementary article I discussed in detail various apparent aporias that arose in Kant's treatment of this concept and suggested that we might understand his problems better by setting them in a broader historical context than those considered in standard works like those of Reinhard Brandt and Wolfgang Kersting. 1 This is the theme that I want to explore further in the present paper.To sum up briefly some of the difficulties in the Doctrine of Right: A central problem for Kant was to explain how rightful possession of individual property could emerge from a hypothetical state of nature where everything was common to all, where everyone had a right to everything. His argument was grounded on a concept of freedom understood as "a pure rational concept." Kant maintained that every person had an innate right to freedom and from this he deduced a universal law of Right: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone." 2 But the person who first seized for himself what had been common to all evidently did encroach on the freedom of others (their freedom to use the property that had been taken). [End Page 381]To address this problem Kant formulated a "postulate of practical reason" concerning property. Citing the Roman law doctrine of res nullius he argued that external things could in principle be acquired. 3 Then he restated the postulate as a permissive law that obliged others to respect the claim of a first occupant. "This postulate can be called a permissive law (lex permissiva) of practical reason which gives us an authorization... to put all others under an obligation, which they would not otherwise have...." 4 But to put others under an obligation is to encroach on their freedom, which would be a violation of the universal law of Right. For Kant, laws that could be discerned by reason alone without promulgation by a legislator, were understood to be natural laws. 5 The universal law of Right and the permissive law of practical reason were both laws of this kind. It seems therefore that natural law contradicted itself. It prohibited and permitted an action at the same time.Other difficulties arose as the argument proceeded. Kant repeatedly asserted that rightful possession must depend on consent expressed in "a collective general (common) and powerful will," "a will that is united originally and a priori"; 6 but he acknowledged that such a general will would not exist in a state of nature before the institution of civil society and that an act of original acquisition would necessarily proceed from a unilateral will. "But the will that a thing is to be mine... can be only unilateral." 7 And yet Kant also wrote, "By my unilateral choice I cannot bind another to refrain from using a thing, an obligation he would not otherwise have." 8 Kant never did explain how a permissive law, allowing a person to act unilaterally, could impose an obligation on others.In my earlier discussion of Kant's work I indicated that it might be fruitful to approach these difficulties by investigating some previous ways of using the language of permissive natural law, especially as it related to the origin of property rights. There is indeed a whole earlier tradition of thought to be considered. An investigation of this material... (shrink)

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)

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)

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)

In the debate on the origin of modern natural rights, the French philosopher Michel Villey became famous for his counter current theses: that the origin of modern subjective rights was a “deformation” or “degeneration” of the ancient and medieval concept of law; that those responsible for this rupture were Ockham and his nominalist disciples, as well as the Scholastics of Salamanca; that these last ones betrayed the thought of Aquinas on the right adhering to the nominalist. These theses serve the (...) purpose of justifying Villey’s radical opposition to the subjective foundations of modern human rights. The reply of the historian of medieval law, the Englishman Brian Tierney, is that Villey’s conception of ancient and medieval law is too restricted; that already in Roman law there was a notion of subjective rights; that the origin of modern subjective rights does not depend only on Ockham’s nominalism, but was already present in the medieval canonists; that the scholastics of Salamanca did not betray the Thomist thought, but they brought it up to the challenges of the new times; and that the idea of ​​subjective natural rights does not depend on a particular ideology, but is compatible with different ideologies and worldviews. In revisiting this debate, our main interest concerns the conclusions that Villey draws from the entire long historical trajectory he has studied, and the criticism that Tierney makes of his radical opposition to human rights. Finally the debate gives rise to some more general considerations about the history of concepts and the distinction between the historical genesis of the ideas and their validity. (shrink)

There are better and worse ways to blame others. Likewise, there are better and worse ways to blame yourself. And though there is an ever-expanding literature on the norms that govern our blaming practices, relatively little attention has been paid to the norms that govern expressions of self-blame. In this essay, I argue that when we blame ourselves, we ought not do so privately. Rather, we should, ceteris paribus, express our self-blame to those we have wronged. I then explore how (...) this norm can contribute to our understanding of the ethics of self-blame as well as the nature of blameworthiness itself. (shrink)

Aristotle's essentialism is generally recognized as involving a distinction between what belongs to something _in itself (kath' hauto) and what belongs to it _accidentally (kata sumbebekos). But he distinguishes two relevant senses of "_in itself"; the first referring to what belongs to something in _what it is, the second referring to such attributes as: odd to number, male to animal, curved to line, and white to surface. I set out these distinctions, and argue that Aristotle counts the second class of (...) _in itself attributes as being just as essential to the individual substances to which they belong as the first. (shrink)

In his second book, Tierney argues that the purpose of education must move to the heart of the educational debate. Purpose will significantly influence what schools and the education system as a whole will do next.

In this article I argue that justice often requires that candidates who are sufficiently qualified for jobs be hired via lottery on the basis that this is the best way to recognise each candidate's equal moral claim to access meaningful work. In reaching this conclusion I consider a variety of potential objections from the perspectives of the employer, of the most qualified candidate, and of third parties, but ultimately reject the idea that a person's status as the most qualified candidate (...) can explain why they ought to be appointed over other sufficiently qualified candidates. (shrink)

Thomas Aquinas was one of the greatest Western philosphers and one of the greatest theologians of the Christian church. In this book we at last have a modern, comprehensive presentation of the total thought of Aquinas. Books on Aquinas invariably deal with either his philosophy or his theology. But Aquinas himself made no arbitrary division between his philosophical and his theological thought, and this book allows readers to see him as a whole. It introduces the full range of Aquinas' thinking; (...) and it relates his thinking to writers both earlier and later than Aquinas himself. (shrink)

Brian Leftow offers a theist theory of necessity and possibility, and a new sort of argument for God's existence. He argues that necessities of logic and mathematics are determined by God's nature, but that it is events in God's mind - his imagination and choice - that account for necessary truths about concrete creatures.

The view that phenomenally conscious robots are on the horizon often rests on a certain philosophical view about consciousness, one we call “nomological behaviorism.” The view entails that, as a matter of nomological necessity, if a robot had exactly the same patterns of dispositions to peripheral behavior as a phenomenally conscious being, then the robot would be phenomenally conscious; indeed it would have all and only the states of phenomenal consciousness that the phenomenally conscious being in question has. We experimentally (...) investigate whether the folk think that certain (hypothetical) robots made of silicon and steel would have the same conscious states as certain familiar biological beings with the same patterns of dispositions to peripheral behavior as the robots. Our findings provide evidence that the folk largely reject the view that silicon-based robots would have the sensations that they, the folk, attribute to the biological beings in question. (shrink)

In this article I argue that we should understand some forms of hypocritical behaviour in terms of epistemic injustice; a type of injustice in which a person is wronged in their capacity as a knower. If each of us has an interest in knowing what morality requires of us, this can be undermined when hypocritical behaviour distorts our perception of the moral landscape by misrepresenting the demandingness of putative moral obligations. This suggests that a complete theory of the wrongness of (...) hypocrisy must account for hypocrisy as epistemic injustice. (shrink)

This book uses computer modeling to investigate trends in what is published in leading philosophy journals over the last century and a half. The notable trends include the rise of realism from a fringe view to the mainstream metaphysical outlook, the increase in specialization, and the increasing depth of integration between philosophy and physical sciences. It also contains a guide to how to do similar investigations, and discussions of the strengths and weaknesses of the approach.

This chapter explores a way in which visual processing may involve innate constraints and attempts to show how such processing overcomes one enduring challenge to nativism. In particular, many challenges to nativist theories in other areas of cognitive psychology have focused on the later development of such abilities, and have argued that such development is in conflict with innate origins. Innateness, in these contexts, is seen as antidevelopmental, associated instead with static processes and principles. In contrast, certain perceptual models demonstrate (...) how the very same mental processes can both be innately specified and yet develop richly in response to experience with the environment. This process is entirely unmysterious, as shown in certain formal theories of visual perception, including those that appeal to spontaneous endogenous stimulation and those based on Bayesian inference. (shrink)

Infallibilism leads to skepticism, and fallibilism is plagued by the threshold problem. Within this narrative, the pragmatic turn in epistemology has been marketed as a way for fallibilists to address the threshold problem. In contrast, pragmatic versions of infallibilism have been left unexplored. However, I propose that going pragmatic offers the infallibilist a way to address its main problem, the skeptical problem. Pragmatic infallibilism, however, is committed to a shifty view of epistemic certainty, where the strength of a subject’s epistemic (...) state can vary depending upon the practical context. Pragmatic views of epistemic strength are quite radical so the argumentative goal of my discussion is to argue for its plausibility, thereby arguing for the plausibility of pragmatic infallibilism. To do so, I discuss the role that the framing of decision problems and the construction of our deliberative attitudes have in our theories of rational choice. And I explore a way in which these necessary components of a normative theory of rationality can be used to motivate pragmatic views of evidential support. Finally, since the plausibility of our pragmatic account will depend upon the plausibility of a constructive account of rational choice, I conclude by comparing the adequacy of the constructive account with orthodox Bayesian and knowledge-based accounts. (shrink)

The popularity of direct-to-consumer genetic ancestry services has exploded over the past five years, with as many as 250 direct-to-consumer genetic ancestry testing companies currently operating and estimates that 1 in 5 Americans are customers of one or more of those companies. Marketing of genetic ancestry testing has consistently linked the results of DNA testing to a consumer’s racial and ethnic identity, and, because of that, can help consumers find out “who they really are.” We argue that the “biologization” of (...) race and ethnicity promoted in such marketing violates norms of marketing ethics. In particular, we show that this marketing technique violates a number of the core commitments and values of the American Marketing Association Statement of Ethics. (shrink)

This article considers the recent publications of French philosopher Simone de Beauvoir, and offers an overview of contemporary scholarship in Beauvoir Studies. Beauvoir’s canonization in Gallimard’s La Pléiade collection in 2018 is discussed, specifically Gallimard’s choice of Beauvoir’s Mémoires for these first two volumes. Exploring the imbrication of Beauvoir’s philosophy with her own lived experience, the article traces what Annie Ernaux describes as the ‘running threads’ connecting us, namely the ways in which Beauvoir’s legacy is interwoven in our lives today. (...) Surveying recent scholarship highlights the pertinence of Beauvoir’s work to contemporary contexts on issues ranging from sexual violence, subjective agency and female subjugation to emancipatory politics and transnational feminist solidarities. Thereafter, the importance Beauvoir placed on self–Other relations is explored in relation to scholarship on Beauvoir’s epistolary exchanges, the publication of her lost novella Les Inséparables, and on Beauvoir’s philosophy of alterity and old age in light of the pandemic. (shrink)