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17.12.12, Saccenti, Debating Medieval Natural Law

17.12.12, Saccenti, Debating Medieval Natural Law

The middle ages may well have been natural law's heyday. Medieval authors commonly, if not universally, believed valid human laws did not and could not expressly contradict ius naturale. Authors of other eras, however, did not always subscribe to such views even though they were no less certain of natural law's existence. The Roman law of antiquity certainly allowed ius civile to prevail over ius naturale, [1] and Hugo Grotius and Samuel Pufendorf said as much in their own day: it is possible for states to pass laws that contradict the demands of natural law. [2] Medieval authors, however, imagined that natural law put limits on what legislators might do. If, as Augustine had said, unjust laws seem not to be laws at all, [3] then it was not a stretch to imagine that human-made laws that flatly contradict the preceptive commands of ius naturale could hardly be valid.

Saccenti's book is a brief but engaging overview of the major trends in the historiography of natural law and natural rights. It is rounded out by endnotes which often include lengthy quotations from medieval and modern authors, and a seventeen-page bibliography. Even students and scholars steeped in the literature are likely to find something that had escaped their notice. The book could have been longer and the bibliography fuller, but only at the risk of limiting the audience to those who care deeply about these medieval "debates" on natural law. As it is, his book should appeal to a wider audience. Indeed, one hopes that the title will not discourage non-medievalists from reading this book.

Saccenti starts with a survey of the contributions of Otto von Gierke, Martin Grabmann, and Odon Lottin, the Carlyle brothers, and John Figgis. However, the real drama of Saccenti's book begins in the first chapter where the contributions of Michel Villey are evaluated. Saccenti relies on a large bibliography for Villey--and for Brian Tierney and Francis Oakley. Villey set an agenda whose effects are still felt today in several respects: unintentionally bequeathing the unfortunate term "subjective rights" to Anglo-American scholarship; (wrongly?) positing a medieval origin for the "modern" notion of right as a power to act; and wrongly, in my opinion, giving the impression that this conception of right-as-power was conceived by medieval authors as divorced or divorceable from the normative aspect of "objective" ius naturale. As is well known, Villey unrealistically argued that Ockham's writings on Franciscan poverty marked--lamentably--a distinct turning point in how ius was understood, which paved the way for the egoistic, morally unmoored individualism of the modern world. Yet it has been shown, by Tierney most forcefully of all, how Ockham was not the first medieval author to suggest that ius naturale could refer to an individually-held power to act. The Decretists also made reference to such an idea centuries earlier. What Saccenti does not say, but which is worth noting, is that the Decretists have a rather poorly developed notion of ius-as-power. Ockham deployed the concept in a much more fulsome manner. However, one might make the same comparison between Ockham and (say) Grotius. The analysis of ius grew richer as time passed.

Villey's other main contribution with respect to Ockham was the notion that it was his nominalism to which we owe his stance on ius naturale. Although Ockham first elaborated his theory in an apologetic text that purports to relate the opinio communis of (the group of Franciscan dissidents we call) the Michaelists, Villey more or less maintained--following Georges de Lagarde--that Ockham's philosophical views were determinative. Here, scholarship is still split.

In the second chapter, Saccenti explores the writings of Francis Oakley, Richard Tuck, and John Finnis--an eclectic mix, to be sure. Oakley's writings on conciliarism and ius naturale, according to Saccenti, rely on and respond to Figgis, Villey, and Tierney's earlier work. Oakley stresses continuity rather than rupture, but champions nominalism as the intellectual foundation for later conciliarists. Next Saccenti turns to Tuck, who once gave a quick tour through classical Roman law and the writings of medieval jurists and theologians. While adumbrating an account of rights that distinguishes between "active" and "passive" varieties (a terminology that has, thankfully, largely disappeared from view), Tuck endorses an incrementalist perspective. And although Ockham and Jean Gerson are lionized, their philosophical commitments do not occupy Tuck so much as the historical context in which they wrote. In the final pages of the chapter, Saccenti turns to Finnis, whose book on Aquinas offers a tendentious take on the question of whether Aquinas had a doctrine of individual ("subjective") rights. Villey had said not, and even his critics--Tierney included--tend to agree. Not so Finnis, who suggested that Aquinas rather understood that one's right (ius) took its origin or authorization from a (legitimate) law (ius or lex): positive rights from positive law, and natural rights from natural law. This has always seemed correct to me, so far as it goes. After all, surely someone who did not doubt the existence of natural law and natural rights would imagine the latter owes its existence to the former. When a Decretist such as Huguccio lists several different "definitions" of ius naturale, some of which refer to the idea of natural law and one of which refers to an innate natural power whereby one may choose the good and avoid the bad, he is not merely listing off homonyms: the definitions are conceptually entwined. Saccenti prescinds from evaluating the merits of Finnis's interpretation of Aquinas in favour of fitting it into Finnis's larger philosophical programme in his earlier book, Natural Law and Natural Rights. But it does indeed seem that Finnis has, as Tierney once wrote, educed an account of natural rights in Aquinas where none is explicitly present.

In the third chapter, Saccenti turns to Tierney. Tierney's writings chart a curious path through the centuries. For the twelfth century, the focus is on the Decretists, but it shifts for subsequent centuries to focus mainly on theologians and philosophers. Other disciplines are not entirely neglected, but the lack of engagement with the civilian jurists is unfortunate. It also seems doubtful that later theologians, even medieval ones, were likely to be familiar with the Decretists directly; rather, their works were distilled and imbibed through the alembic of the Glossa ordinaria and the texts of the Decretalists. Be that as it may, Saccenti's chapter on Tierney highlights some of his many valuable contributions to the historiography of ius naturale.

If Finnis at times seems to stretch Aquinas's argument beyond what the words can bear, Tierney can occasionally appear to track terminology and definitions across centuries without paying enough heed to their place in the overall argument. Tierney traces the idea of ius-as-power: where the right-holder has the discretion to act or not. The Decretists (Rufinus and Huguccio especially), Ockham, Gerson, Grotius, Pufendorf, Locke, and many others are part of this history. Pace Villey and those who believe Ockham's philosophical commitments shaped his views on ius naturale, Tierney rightly points to the Franciscan poverty controversy and his reliance on the texts of canon (but not Roman) law.

Saccenti addresses the issue of continuity in chapter four. Cary Nederman (among others) has challenged the continuity perspective championed by Tierney and Oakley. Although Nederman may not have succeeded in convincing his interlocutors, it is a subtler and more interesting argument than those who posit radical breaks between, say, John Locke and everything that came before him. In a different way, Annabel Brett, too, problematizes the idea of continuity: she notes there were a variety of different discourses about rights that grew up in the late middle ages and then flowered in the sixteenth century. Saccenti underlines Brett's argument that Ockham, unlike earlier Franciscan authors, linked ius and potestas (and ratio). Saccenti passes no judgment, but it simply is not true: the Michaelists were all at pains to differentiate the mere act of using from a right of using, and it was common (if not indeed necessary) to turn to the language of potestas and facultas in order to do so.

In the final section, Saccenti turns to the Roman law tradition, which has, unfortunately, always travelled down a parallel but less well-worn path. It is noteworthy that the figures he briefly discusses--Kenneth Pennington, Ennio Cortese, Rudolf Weigand, and Paolo Grossi--all evince a deep appreciation that, for the middle ages and beyond, canonists and civilians did not write in isolation from one another. Thus the history of the fate of ius naturale needs to take account of both. Saccenti adds that both canon and Roman law need also to be considered for their influence on the theologians. However, it often seems that theologians were more familiar with canon law than its (secular) Roman cousin.

In the fifth chapter, Saccenti finally gives us a glimpse of his hand. The most interesting feature of this chapter is his disquisition on the relationship between metaphysics and ius naturale. Ultimately, he argues that the two cannot be fully disconnected. This is the weaker form of the general claim, and it is hard to disagree with it. The stronger form--that there is some kind of causal link, or that one's philosophical views in other areas somehow determine one's political views [4]--has always seemed suspect. But Saccenti paints a picture that briskly moves from the emerging ideas regarding natura in the twelfth century, to how Aquinas's theory of lex naturalis relies on transcendental ideas, to the 1277 condemnations, which is then linked to the "rise of the nominalistic perspective on lex naturalis and ius naturale" (71). Saccenti suggests that this matters for Ockham: he needed to preserve God's omnipotence, and thus ius naturale is (among other meanings) the natural law established by divine will. It is hard to agree with this conclusion. Ockham in fact maintained that there is both a positive and non-positive moral science, and that non-positive moral science is self-evidently true. It does not seem to depend upon anyone's will per se. Positive moral science, on the contrary, does. This philosophical argument, moreover, can be mapped--though Ockham himself did not do so--pretty neatly onto what Ockham claims about ius in the central chapters of the Opus nonaginata dierum (OND). Taken at face value, there is nothing particularly nominalist (say) about Ockham's views. For my money, Philotheus Boehner had it right many decades ago that Ockham's political views could have arisen under any of the "classical metaphysics of the 13th century." [5] What in fact matters is whether Ockham's political views are consistent with rather than derivative from his philosophical views. Here the answer is surely yes.

One other minor correction should be made about Ockham's use of legal sources. Ockham did not directly adopt the language of the Decretists whom he almost certainly did not know firsthand; he relied on the Decretum and Decretales (and the all-important Glossa ordinaria). But he did not do so because Pope John XXII did. In fact, the pope's key arguments about property rights hinged on Roman law, not canon law; Ockham cited Roman law only rarely and with far less dexterity than he did for canon law. The magister's later complaint in the Dialogus that he had to make do with only the Bible, the Decretum, and the Decretales rings true. [6]

Saccenti concludes his book with a plea that scholars refrain from adopting a purely "philosophical" approach to the study of medieval texts: we should read texts against their "own historical background" (78). Indeed. Some of the authors Saccenti discusses did so better than others, and his book will help those interested in the medieval debate over ius naturale see who they are in an accessible manner.

Saccenti has succeeded in providing a balanced account of the positions of several key scholars in the field without unduly hiding his own views. Scholars new to the depths hidden in the phrase ius naturale will be able to orient themselves quickly in the scholarship upon reading this book, and seasoned scholars will benefit from the bibliography, the extensive endnotes, and the opportunity this book affords to reconsider the historiography. The book contains few typos, and his few translations of the Latin are generally fine. [7] If not exactly cheap for its size, it is certainly compact enough to fit on any shelf.

-------- Notes:

1. Charles Donahue, Jr., "Ius in Roman Law," in John Witte, Jr., and Frank S. Alexander, eds., Christianity and Human Rights: An Introduction (Cambridge: Cambridge University Press, 2010), 76.

2. Cf. Hugo Grotius, De iure belli ac pacis; Samuel Pufendorf, De officio hominis et civis juxta legem naturalem 1.5.18.

3. Augustine, De libero arbitrio 1.5.11.

4. Michel Villey, "La genèse du droit sujectif chez Guillaume d'Occam," Archives de philosophie du droit 9 (1964): 120: "Or la philosophie d'Occam, sur tous ces points, prend le contre-pied de la philosophie classique. Et il ne peut en résulter qu'une optique entièrement nouvelle sur les phénomènes juridiques."

5. Philotheus Boehner, "Ockham's Political Ideas," Review of Politics 5:4 (1943): 466.

6. See the prologue of 3.2 Dialogus. A working draft of the forthcoming critical edition is available online:

7. I only noticed one minor error in the translation of "secuta quadam sollemnitate" on page 59 from the Summa institutionum vindobonensis. The phrase is meant to indicate that while the union of male and female may descend from ius naturale, we only call a solemnized union matrimony.