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)