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William of Occam and the Higher Law, II*

Published online by Cambridge University Press:  02 September 2013

Max A. Shepard
Max A. Shepard
Affiliation:
Harvard University
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Extract

It is in connection with Occam's elaborate theory of property that we can most readily grasp the importance of his theory of higher law, particularly as embodied in the jus gentium. We must, therefore, investigate this subject in considerable detail.

In Occam's view, God is originally the source of all property. But, as in the case of law and government, this is true only in the most general and indirect sense. Most property rights arise from human law and only mediately from God, although in a few special cases such rights follow directly from special divine ordination or from lex divina. Occam cites a passage from St. Thomas Aquinas (Summa Theol. II, II, Qu. 44, Art. 2) stating that separate possessions are not according to natural law but are founded upon human or positive law, and are added to natural law through the exercise of human reason. In the primal condition of mankind, or in the state of innocence in the Garden of Eden, all property was common and none was discrete or private. Before Eve came, Adam had only a de facto right of user and no greater right of private property than a sole remaining monk would have in the property of a monastery.

Type
Research Article
Information
American Political Science Review , Volume 27 , Issue 1 , February 1933 , pp. 24 - 38
Copyright
Copyright © American Political Science Association 1933

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References

78 Opus Non. Dier., ch. 88, p. 1147.

79 Ibid., ch. 88, p. 1146.

80 Ibid., chs. 26 and 27, p. 1073 ff.

81 Dial. III, II, III, 6, p. 932.

82 Ibid.

83 Opus N. D., ch. 88, p. 1147.

84 Ibid., ch. 91, p. 1149. Aquinas again had this theory of property as an institution of jus gentium in rudimentary outline, as did John of Paris.

85 Ibid., ch. 92, p. 1150.

86 The principles applying to the two are identical. Dial. III, II, II, 25, p. 922.

87 See above, vol. 26, p. 1013.

88 Dial. III, II, II, chs. 26 and 28, pp. 922 and 924.

89 Ibid., ch. 23, p. 921. Cf. also John of Paris.

90 Ibid., ch. 27, p. 923.

91 Ibid., ch. 23, pp. 920, 921. Cf. Bodin's prohibition of the leges imperii against alienation of the royal domain. De Republica, Book I, ch. 8.

92 This assimilation appears clearly in the Octo Quaes., II, ch. 1, where he discusses the origin of the “proprietas of the supreme lay authority.”

93 Octo Quaes., II, 2, p. 336.

94 Fifth Amendment: “No person shall be deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment extends the prohibition to the states.

95 Das Recht der Expropriation, pp. 76–108.

96 Ibid., Martinus received a horse from the Emperor for his answer, while Bulgarus, who gave the contrary opinion, disconsolately philosophized: “Amisi equum, quia dixi aequum, quod non fuit aequum.”

97 Ibid., p. 91, citing Gloss ad L 2 Code (1, 19).

98 It is interesting to note that Meyer, preoccupied with the jurists, does not once mention Occam, despite the fact that his theory has a much broader philosophical basis than that of the legists.

99 Cf. Walter Lippman's spheres of anarchy and spheres of agreement.

100 Cf. above, vol. 26, p. 1015.

101 Dial. III, II, II, 27, p. 923.

102 Cf. Cicero's famous definition of the state, De Rep. I, 25: “Respublica res populi; populus autem non omnis hominum coetus, quoque modo congregatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus.”

103 This distinction forms the cornerstone of all truly consistent modern pluralistic theories of the state.

104 Dial. III, II, II, 24, p. 921, where he cites St. Augustine and talks about the populus transferring to the Emperor all power to make human laws. This is impossible according to the above cited passage (p. 31), which clearly implies that the populus did not, and does not, have authority to make all human laws.

105 Octo Quaes. I, 17, p. 333; I, 7, p. 322; Opus N. D. 3, 1006; 8, 1026; Dial. III, I, I, 16, p. 786.

106 Dial. III, II, III, 6, p. 932–3.

107 Ibid., III, II, II, 27 and 28, pp. 923 and 924; III, II, II, 20, p. 918; Octo Quaes. VIII, 3, p. 385.

108 Dial. III, II, II, 20, p. 918.

109 For the Pope, cf. vol. 26, p. 1023, above.

110 Occam might have approved of war-time prohibition.

111 253 U. S. 350 (1919).

112 Dial. III, II, II, 20, pp. 917–9.

113 Ibid., III, II, I, 13, p. 881.

114 Octo Quaes. II, 7, 341.

115 Ibid., VIII, 5, p. 385.

116 Op. cit., p. 687.

117 Ibid., 720.

118 Dial, III, II, I, I, p. 871.

119 Octo Quaes. III, 6, p. 352.

120 Ibid., I, 10, and Dial. I, VI, 100, p. 630.

121 Octo Quaes. I, 16, p. 333.

122 Dial., III, I, I, 17, 787.

123 Ibid., I, VI, chs. 13, 47, 57ff, 74 (on the right of disobedience to a pope's commands which violate natural and divine law).

124 Ibid., I, VI, 57, p. 561. A general council may be summoned in casu without royal authorization. Ibid., 84, p. 602.

125 Ibid., I, V, 25, p. 494.

126 Ibid., 28, p. 497–8; and cf. the distinction (p. 30 above) between state and society. Here we have the same thing even more clearly expressed for the spiritual sphere.

127 Ibid., ch. 32.

128 Ibid., I, V, 35, p. 506.

129 Cf. also R. L. Poole, op. cit., p. 243.

130 Dial. III, I, II, 19, p. 804.

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