SOURCE: "Natural Law and Canon Law in Ockham's Dialogus" in Aspects of Late Medieval Government and Society, edited by J. G. Rowe, University of Toronto Press, 1986, pp. 3-24.

[In the following essay, Tierney traces some of the sources and influences that led to Ockham's theory of natural law.]

An earlier approach to Ockham's theory of natural law, which still finds support in some modern scholarship, emphasized a supposed relationship between the great Franciscan's specific political doctrines and his general philosophical principles. More recently, several scholars have argued that Ockham's political theory can best be understood when it is related to the real-life controversies in which he became involved and to the arguments available to him in the commonly accepted ideas of his time, especially the ideas of the medieval canonists. In this essay, I want to argue that some further investigation of Ockham's canon-law sources can lead to a better understanding of his teaching on natural law.

Approaches to Ockham

The two approaches mentioned above need not be mutually exclusive—Jürgen Miethke combined both of them in his study of Ockham's intellectual development.¹ But it may still be useful to inquire which is the more helpful and informative approach in considering any particular aspect of Ockham's thought. The first approach is found in various older histories of natural law. Heinrich Rommen, for instance, wrote that 'an evolution set in which, in the doctrine of William of Occam on the natural moral law, would lead to pure moral positivism, indeed to nihilism.'² To such writers it seemed evident that Ockham's philosophical nominalism and voluntarism precluded the development of a coherent natural-law doctrine in his works. Earlier scholastic philosophers, above all Thomas Aquinas, had seen natural law as inherent in the very being of things, which in turn reflected the eternal reason of God. But Ockham's nominalism, it was argued, excluded a belief in universal immutable principles and his voluntarism reduced all natural morality to mere arbitrary command—the command of an inscrutable God who could change at will any existing standards of good and evil. Such arguments lead to a paradoxical conclusion: Ockham certainly did present a doctrine of natural law in his political writings, but for him the natural law provided only a mutable, unstable, shifting standard for regulating human conduct.

There are obvious objections to this whole approach. Ockham hardly ever referred to his earlier philosophical doctrines in his later works on ecclesiology and political theory. Moreover, there were good reasons for this. Ockham was convinced that Pope John XXII had fallen into heresy, and he wanted to convince the whole Christian world of the pope's error. He could obviously do this more effectively by arguing from generally accepted principles than by relying on his own controversial and suspect innovations in philosophy. Moreover, his voluntarism, his view on the absolute power of God's will, was simply irrelevant to this dispute. Ockham had no interest in demonstrating that God could have created some other moral universe—a universe in which perhaps John XXII might have been right after all. He wanted only to prove that the pope was wrong in the world that actually existed then and there, and wrong to the point of heresy. Moreover, Ockham's nominalism did not in fact prevent him from asserting that, in the actual existing world, general principles of natural morality could be discerned by human reason. Finally, it has been doubted whether any necessary implication can exist between abstract metaphysics and specific political doctrines.³

The most sophisticated formulation of the first approach to Ockham was presented by Georges de Lagarde in his La naissance de l'esprit laïque au déclin du moyenâge.⁴ De Lagarde wrote more cautiously and sensibly than one might suppose from reading only his critics, but he did emphasize the destructive tendencies in Ockham's political thought and related them to his general philosophical positions. In the generation after de Lagarde's work appeared many scholars—among them Kölmel, Boehner, Morrall, Bayley, Junghans—criticized his central theses.⁵ They all found Ockham's political ideas more conservative and constructive than de Lagarde had. Kölmel in particular addressed himself to Ockham's natural-law theory. He pointed out that Ockham's doctrine was not formulated as an integral part of his whole philosophy but as a response to the particular circumstances of his dispute with the Avignon papacy. This led to other disagreements with de Lagarde. Whereas de Lagarde emphasized the variety of natural laws in Ockham, Kölmel found a core of rational equity that gave a kind of unity to them all. De Lagarde emphasized Ockham's voluntarism, Kölmel his rationalism. De Lagarde emphasized rights, Kölmel norms. But in spite of all this Kölmel still chided Ockham a little for departing from the beautiful simplicity of Aquinas' unified natural-law theory and seemed to regard this as a regrettable innovation.⁶

Recent authors more sympathetic to de Lagarde's general approach typically express that sympathy in a moderate and cautious fashion. They acknowledge that there is no relationship of strict logical entailment between Ockham's philosophy and his political theory—one could not deduce the latter from the former. But they still discern broad areas of congruence between the two departments of his thought, and think it important to explore these congruities when evaluating Ockham's political theory. A. S. McGrade, for instance, has discussed a parallel between Ockham's 'logical individualism' and the treatment of individual rights in his political works. Gordon Leff, emphasizing particularly the concepts of necessity and contingency, has maintained that, in discussing spiritual and temporal power, Ockham 'produced a devastating critique of the traditional assumptions about the nature of each' and that he did so 'largely by drawing upon his own wider philosophical and theological assumptions.'⁷

There seems to be no denying that resemblances exist between Ockham's philosophy and his political theory. One would expect this; after all we are not dealing with a schizophrenic. The problem for a historian of political thought is to decide whether the investigation of these resemblances has any explanatory force, whether it really advances in any significant way our understanding of Ockham's teaching. Such investigation could certainly do so if it showed that specific, unusual tenets of Ockham's philosophy were reflected in specific, unusual tenets of his political theory. But this never seems to be the case. Sometimes the philosophical positions attributed to Ockham are too vague to be significant. (The concepts of 'necessity' and 'contingency,' for instance, were by no means Ockhamist peculiarities.) And often the political views that are correlated with Ockham's philosophy were fourteenth-century commonplaces, held by many other thinkers who adhered to different philosophical positions.

When considering de Lagarde's treatment of individual rights, for instance, we have to remember that medieval law was saturated with concern for rights, a concern expressed in a crisp phrase of the glossa ordinaria to the Decretum: 'No one is to be deprived of his right except for a very grave offence.'⁸ We may recall, too, that it was Ockham's adversary, John XXII, who insisted on an original, individual right of property inhering in Adam, and Ockham who, to dispute the pope's conclusion, invented a peculiar doctrine of Adam as a sort of corporation sole.⁹

Treating a related question, de Lagarde, and Leff following him, emphasized that Ockham's legal theory recognized the existence of a kind of moral 'no man's land,' a great juridical terrain unregulated by rational moral law, a region where human will had free play, 'a zone of absolute human autonomy' as de Lagarde put it.¹⁰ But here again we are dealing with a medieval platitude. Civil and canon lawyers and earlier scholastic philosophers all acknowledged the existence of a mass of legal rules that depended only on human choice. Roman and canon lawyers often recalled the maxim, 'What has pleased the Prince has the force of law' and the glossa ordinaria to the Digest declared simply, 'No reason can be given in matters of purely positive law…'¹¹ The canonists also liked to quote a phrase of Juvenal in discussing papal legislative power—'in eo est pro ratione voluntas.' The human choice on which positive law depended might be expressed simply through the will of a ruler or through the tacit agreement of a people embodied in custom. In either case the function of such law was to regulate matters that were morally indifferent but that needed to be regulated in an ordered society. Thomas Aquinas made the same point when he taught that some human laws were not deduced from natural law but merely determined matters that natural law left open.¹² Vague references to 'voluntarism' or 'necessity and contingency' just do not advance our understanding of Ockham's thought in this area. His teaching on positive law was entirely conventional; it has no significant connection with his philosophical presuppositions.

These observations suggest that an investigation of Ockham's sources might help us to understand the content of his work. Around 1328, when Ockham was residing at Avignon, the Franciscan minister-general, Michael of Cesena, ordered him to investigate the decretals of Pope John XXII, dealing with Franciscan poverty. Ockham, unhappily and reluctantly according to his own account, came to the conclusion that the pope's teaching was heretical. At this point he seems to have embarked on a concentrated study of the canon law relating to church property and to heresy.

Many modern authors have noticed the frequent quotations from canon law in Ockham's political writings. It is very hard, however, to characterize the extent of the canonistic learning that he acquired. Certainly he never achieved a professional grasp of the structure of the whole corpus of canon law; there were always odd gaps in his knowledge and understanding. For instance, Ockham inveighed against Innocent IV for denying that infidels could legitimately hold property or jurisdiction, apparently in happy ignorance of the fact that Innocent had presented a classical defence of infidel rights in his great commentary on the Decretals.¹³ Again, when discussing the question whether a pope could define a new article of faith, Ockham cited an obscure commentary of Alanus on the Compilatio prima. (The text was transmitted to fourteenth-century jurists in Guido de Baisio's Rosarium.) But Ockham could never see, or he would not admit, that his own understanding of the text was essentially the same as that of John XXII's curial canonists.¹⁴ On another point, Ockham attacked John XXII for applying to the Franciscan Order the canonistic concept of a corporation as an 'imaginary person,' a 'persona ficta.'¹⁵ Rather, Ockham maintained, the order was made up of real individuals. But the canonists' 'fiction theory'—developed especially by Innocent IV again—was intended to assert precisely this point. It was because only individuals had real personality that a group of individuals (a corporation) could be considered as one person only by a fiction of the law. Gierke maintained, as a central theme of his great work, Das Deutsche Genossenschaftsrecht, that Innocent IV's doctrine substituted an atomistic individualism for the 'properly medieval' doctrine of the real personality of the group.

There are evident limits, then, to Ockham's understanding of canonistic thought. However, his knowledge went beyond a mere surface acquaintanceship with a few scattered texts of the Decretum and Decretals. When he was writing the Dialogus at Munich, Ockham complained that he had no reference works available except the canon law and the Bible. But at least he had these texts in editions that included the ordinary glosses, for he quoted from them directly, especially from Johannes Teutonicus' gloss on the Decretum. But Ockham seems to have known more than this. In his earlier studies at Avignon he would have had all the books he needed and expert canonists (like Bonagratia of Bergamo) to guide his reading. Ockham's teaching on papal heresy has much in common with Huguccio's and I think he must have read Huguccio at some point. In the Dialogus he included a brief quotation from Hostiensis. It seems to me very probable that Ockham was also acquainted with the Rosarium of Guido de Baisio. (One passage of Ockham's Breviloquium seems a close verbal paraphrase of a text in the Rosarium.)¹⁶ Guido's popular work, completed c 1300, presented a vast compendium of earlier, half-forgotten, commentaries on the texts of Gratian's Decretum. It could have provided a mine of information for Ockham. The substantial but little-noticed treatise on natural law at the beginning of the Rosarium is especially interesting because, in a quite unusual fashion for a thirteenth-century canonist, Guido wove together canonistic and philosophical texts—Huguccio and Johannes Faventinus and Hostiensis intermingled with Aristotle and Thomas Aquinas and Alexander of Hales. Ockham presumably did not have all these canonistic works available to him in Munich. The most probable hypothesis is that, while at Avignon, he acquired a rather extensive knowledge of canonistic commentaries on the limited number of canon-law texts that particularly interested him, and that, in his later writings, he worked from a dossier of notes or from memory. This would explain why one so often encounters echoes of canonistic teachings in Ockham without any specific quotation or direct reference to a legal source.

All this may be of interest in considering Ockham's intellectual formation. But evidently we need to raise here the same question that we asked earlier in considering Ockham's philosophical positions. Does an approach to Ockham's political theory through research on related topics of canon law really help us to understand his thought? Does it have any explanatory force? The answer is not obvious. Gordon Leff, for instance, was sceptical of such an approach. He began his book on Ockham with the words 'Ockham was an innovator' but then at once rejected the view that 'identification and assessment of an outlook begins with a thinker's antecedents, both intellectual and circumstantial.' On this one might observe that it is impossible to know whether a given thinker was an innovator or not, or where and how he was innovating, or how he was led to innovate unless we know the state of antecedent thought and something about the thinker's own circumstances. Many writers on Ockham's political theory—even Leff himself—mistakenly attribute to him radical novelties of thought when in fact he was restating familiar ideas of his own time.

However, this argument does not quite meet Leff s main point. He realizes that in addressing some questions—questions of biography and influence—a study of Ockham's antecedents and circumstances is relevant. But he denies that such study is necessary for investigating 'the nature of the thought itself.' Leff argues on logical grounds that we must understand a system of thought before we can explore its antecedents. But this ignores all the hermeneutical problems of text and context that are discussed in so many recent works on intellectual history. From Leff s point of view it is irrelevant to ask when or how Ockham learned canon law if we are really interested in the questions, 'What did Ockham think and what was the nature of his thought?'¹⁷ I would suggest, on the contrary, that it is sometimes scarcely possible to know what Ockham did think—or even what he wrote—without some knowledge of his canonistic sources. Ignorance of them can lead to misunderstandings. For example, Leff himself misunderstands the concepts 'clavis scientie' and 'clavis potestatis' as used by Ockham and the Franciscan Spirituals because of his disinclination to consider the canonistic background of these terms.¹⁸

In the particular area of natural law, the canonists can help us to understand both where Ockham was innovative (if at all) and what he actually meant to say. The following notes on two crucial texts will serve to illustrate these points.

III Dialogus 2.3.6

This text has always seemed of central importance to students of Ockham's natural-law theory. Ockham suggests here that there are not one, but three kinds of natural law and that much of the content of natural law is mutable, sometimes it seems by the mere choice of those whom it affects. We will discuss each of the three types in turn, but in order to understand them, we first need to know a little about the context of the argument in which they occur. At this point of the Dialogus, the Master was concerned to argue that the Roman people possessed an enduring right to elect the pope, a right which could not be taken away from them without their consent but which they could assign to others by their own choice. The Disciple objected that such a claim could not be established either by divine law or human law. The Master replied that it could be justified by divine law if the term was used broadly to include all natural law.¹⁹ This led him to an analysis of his three different types of natural law in search of one that would justify the right of the Roman people—and he eventually found it in the third type.²⁰

In the past, interpretation of Ockham's thought in this passage was impeded by textual corruptions in the two printed editions. However H. S. Offler has recently provided an accurate version of the text. So the problem now is not so much to understand what Ockham wrote or what he meant as to decide whether his thought was in any way unorthodox or innovatory. Recourse to earlier canonistic writings is indispensable here since Ockham based his exposition explicitly on the texts of Gratian and much of his argument is a word-by-word commentary on a passage of Isidore of Seville that was included in the Decretum. It will be useful to quote this text at the outset: 'Natural law is common to all nations since it is held everywhere by instinct of nature, not by any statute; as for instance the joining of man and woman, the procreation and education of children, the common possession of all things, the one liberty of all, the acquisition of things taken by air, land, or sea. Also the return of a thing deposited or of money loaned. For this or anything like this is never unjust, but is naturally held to be equitable.'²¹

The mere quotation of the text clears up one point. It is evident that Isidore was using the term 'natural law' in several different senses; and the fact was as apparent to the first commentators on the Decretum as it was to Ockham. Indeed Ockham's threefold division of natural law will seem modestly restrained to anyone familiar with the more luxuriant imaginings of the early Decretists. Stephen of Tournai gave four meanings of the term 'ius naturale,' and then, adding 'and if you do not shudder at a fifth meaning' went on with another. The author of the Summa in nomine found as many as seven meanings. Johannes Teutonicus, in the ordinary gloss to the Decretum, a work which was certainly available to Ockham when he wrote the Dialogus, limited himself to four basic meanings, two of which correspond closely to two of Ockham's definitions. Huguccio added a cautionary note: 'Not all the examples of natural law given here refer to the same meaning of natural law; therefore a prudent reader will be careful to discern which example refers to which meaning.'²²

The mere multiplication of definitions is thus traditional. The problem is whether Ockham's specific categories conform to earlier ideas or whether they present, as Pierre d'Ailly wrote later, 'a new and very fine division of natural law.' Let us consider the three types in turn.

Natural Law I.

This is defined thus: 'In one way natural law is called that which conforms with natural reason, which in no case fails, such as, "You shall not commit adultery," "You shall not lie," and things of this sort—in this first way natural law is immutable and invariable and indispensable as at Dist. 5 ante c.1 and Dist. 6 post c.3.'²³

Later we shall need to consider in a little more detail Ockham's views on the relationship between natural law and reason as developed elsewhere in his work, but so far the doctrine put forward is entirely traditional. Gratian himself, in the texts cited by Ockham, identified natural law with the moral precepts of the Old and New Testaments, especially the Decalogue. 'There are in the (old) Law certain moral precepts like "You shall not kill." Moral mandates pertain to natural law and are shown to have never changed.' Gratian also wrote that this immutable natural law existed 'from the beginning of the rational creature'²⁴ and the Decretists commonly observed that reason enabled men to discern the basic principles of morality that were also set forth in Scripture. Guido de Baisio, in his Rosarium, quoted Huguccio on this: 'Natural law is divine law, namely what is contained in the Mosaic and evangelical law… And this law is called natural… because natural reason leads and impels us to the things contained in divine law.'²⁵ We can therefore agree with McGrade that this first definition of natural law 'is more significant as an acknowledgment of common ground with the previous tradition than as an original contribution.'²⁶

Natural Law II.

At first glance it may seem different from Ockham's second kind of natural law, for here he tells us that 'in one meaning of the term natural law is not immutable.' Ockham here took up the text of Isidore that we have already quoted, focusing on the words 'the common possession of all things, the one liberty of all.' But existing law recognized private property and servitude, Ockham noted. So common possession and universal liberty could not belong to the immutable natural law of the first definition. Accordingly Ockham put forward his second definition: 'In another sense natural law is that which is to be observed by those who use only natural equity without any human statute or custom. It is called natural because the contrary is against the state of nature as instituted and if men lived according to natural reason or divine law it (the contrary) would not be kept or observed.'²⁷ Thus this law existed before the Fall and it would have continued to exist if man had not sinned, if he had lived 'according to reason.' It indicated a good and equitable state of affairs, but it was not immutable like the moral precepts of Natural Law I. It had indeed been modified by the human laws introducing property and servitude.

The notion of a changeable natural law has seemed innovative, even subversive, to some modern critics. But in fact, from the time when major commentaries on the Decretum began to appear in the mid-twelfth century, the canonists showed themselves aware that some of Isidore's varieties of natural law could not be considered immutable. A decisive clarification was offered by Rufinus (c 1160). He argued that natural law consisted of 'commands and prohibitions' on the one hand and of 'indications' ('demonstrationes') on the other: 'It commands what is good like "You shall love the lord thy God," it prohibits what is harmful like "You shall not kill," it indicates what is fitting like "They shall have all things in common" or "The one liberty of all"…' Rufinus' doctrine came to be very widely accepted among the Decretists and they commonly explained that while the commands and prohibitions of natural law were immutable, the 'indications' could be changed by subsequent human law.²⁸ The argument was repeated in Guido de Baisio's Rosarium, again in a formulation from Huguccio. Sometimes, too, the canonists—like Ockham—specifically identified this kind of natural law with rational equity, as in this definition from the glossa ordinaria of Johannes Teutonicus: 'In a third way natural law is called an instinct of nature proceeding from reason and the law proceeding from such nature is called rational equity and all things are said to be common by this natural law, that is, they are to be shared in time of need.'²⁹

The last phrase of Johannes Teutonicus may serve to remind us of another aspect of Ockham's doctrine. The relationship between natural law and property was especially important to Ockham because of his involvement in the dispute over Franciscan poverty which gave the original impetus to all his political writings, and he discussed the law that we have called Natural Law II in other works, especially the Opus nonaginta dierum (OND) though without developing there the threefold classification of the Dialogus.³⁰ In the OND he explained that, although the natural law favouring community of property could be modified by human law, it could not be totally abolished since in time of necessity all things were still regarded as common. Hence a person in extreme need had a right to use the goods of another. Here again Ockham was following a common canonistic doctrine. It was introduced into Decretist commentary by Huguccio and widely adopted in later works, including the glossa ordinaria, as we have seen. In view of the subsequent development of his argument about the third type of natural law (considered below) it is interesting that Ockham referred to this right of use derived from the second natural law as 'a right of nature that cannot be renounced.'³¹ Self-preservation in some circumstances was not only a right but a duty.

There is one more significant point about the second type of natural law where the discussion in the OND augments that of the Dialogus. In the latter work Ockham declared that Natural Law II could be modified for reasonable cause. But in the OND he put the point more emphatically: The right to appropriate, he argued, derived from 'a dictate of natural reason,' given the 'corrupt nature' of fallen man. Kölmel saw a significant innovation here in that Ockham based two kinds of rational natural law on the two states of man, before and after the Fall. The doctrine, Kölmel observed, is not to be found in Duns Scotus or Thomas Aquinas. But it is to be found in Guido de Baisio, commenting on the same Isidorean text as Ockham, and referring here to Alexander of Hales as his authority: 'Natural law dictates differently as regards common and private property … for in the state of nature as well instituted it dictated that all should be common; in the corrupted state of nature it dictated that some things should be private… according to Alexander.'³² Once more Ockham seems to be following faithfully in the footsteps of his predecessors.

Natural Law III.

Ockham's third kind of natural law is the most complex and interesting one. His definition was based on the authority of Isidore's text at Dist. I c7, especially on the words 'restitution of money loaned' and 'repelling of force by force.' But the real purpose of the definition was to defend the right of the Roman people to elect the pope and their capacity to renounce that right—the starting point of this whole involved discussion of 'ius naturale.' The definition ran like this: 'In a third way natural law is called that which can be gathered by evident reason from the law of nations or other law or from some human or divine action, unless the contrary is established by consent of those whom the matter concerns. And this can be called natural law by supposition.'³³ 'Suppositio' is a technical term in Ockham's logic, but he does not seem to be using the word in any specialized sense here. His 'ex suppositione' means simply 'on the supposition that' or 'on condition that.' Thus, supposing that private property has been introduced by human law, then it is evidently reasonable that debts should be paid; and, supposing that violence actually exists (though this is contrary to natural law in the first two senses), then it is evidently reasonable that force should be repelled with force—unless, in either case, the contrary has been agreed.

This last definition of Ockham may seem finally to support the view that he did invent a new kind of natural law, a shifting, changing, unstable 'ius naturale' dependent only on the will of the people concerned. But this argument can be misleading unless we understand the sense of 'ius naturale' that Ockham had in mind. So far I have been translating the term as 'natural law' but to continue to do so would be inaccurate. Ockham was really writing here about natural rights. It was the natural rights inherent in individuals or communities that they could freely renounce, not the natural laws that bound them. (A person with a right to receive payment could cancel the debt. A person under attack could waive his right of self-defence.) In this area there was a sort of progression running through the whole passage we have discussed. Ockham's first definition of 'ius naturale' dealt with moral precepts that were immutably binding, laws in a strict sense.³⁴ The second 'ius naturale' still dealt mainly with law, with principles of rational equity. Its provisions could be modified by human law but they gave rise to rights that were sometimes inalienable. Ockham's third 'ius naturale' was concerned much more with rights than with laws and with a class of rights that could be renounced by consent of their holders. The real interest of the text is that it raises, perhaps for the first time, the problem of the alienability of natural rights, which later became of great importance for natural-law theorists. Here, if anywhere, Ockham moved beyond the limits of earlier canonistic discourse.³⁵ And yet, even here, most of his definition was composed out of conventional elements. Ockham began by asserting that in the whole mass of human law and human conduct there were embedded principles of 'ius naturale,' discernible by reason. This of course was standard doctrine. According to the common teaching of Roman and canon lawyers, although human laws varied from place to place and time to time and sometimes might be merely arbitrary, often they exemplified principles of rational natural law. Defining the characteristics of human laws, Isidore wrote that they should be 'honorable, just, according to nature [italics mine]… convenient to time and place, necessary, useful… and on the words 'according to nature' the glossa ordinaria commented 'i.e. natural reason.'³⁶ Among the earlier canonists, Alanus provided a definition that closely approximates that of Ockham: 'Whatever is naturally equitable, whether in the law of nations or civil law or canon law, is contained in natural law.'³⁷

In this same gloss Alanus also offered a doctrine of 'relative' natural law essentially the same as Ockham's 'ius naturale ex suppositione.' Alanus used the technical terms 'ius simplex' and 'ius respectivum' to convey the same idea. For him, simple natural law showed what was equitable in itself, without regard to human laws; 'relative' natural law indicated what was equitable when preceding positive law was taken into account. Thus Alanus pointed out that some of Isidore's definitions of natural law could be accepted only on the presupposition that human law had already instituted private property.³⁸ This was the same point that Ockham would make later.

The final element in Ockham's definition asserted that the rights he was discussing could be renounced by consent. Specifically, he argued that the Roman people could renounce their natural right to elect the pope. As to the existence of the right, Ockham asserted that, supposing a ruler was to be appointed, then every community had a natural right to choose its own head. Hence, on the further supposition that Peter had established his chair at Rome, the Roman people had a natural right to elect the pope. But, just as the people transferred their jurisdiction to a ruler when they elected him, so they could transfer the right of election itself. And so the argument reached its conclusion. A suppositional right associated with the third kind of 'ius naturale' could be renounced by consent of the people concerned.³⁹

As to the originality of all this: The idea that every people had a right to elect their own ruler was becoming common in fourteenth-century political thought, so its occurrence in Ockham is not surprising or particularly significant. Also, earlier canonists had discussed the renunciation of rights in great detail, usually concluding that some rights but not others could be alienated. However, their discussions dealt with rights held under human law, not specifically with natural rights. The underlying principle was that a person could freely renounce a right that was introduced solely for his own advantage but could not do so when some public good was involved. For this reason Hostiensis doubted that the cardinals could renounce their right to elect the pope in spite of the general principle which he cited: 'Anyone can renounce his own right.'⁴⁰

Hostiensis was unusually interested in the specific problem that Ockham raised about the electoral role of the Roman people conceived of as a natural right. Discussing the election of an emperor he declared that the Roman people held this right: 'By the common right of every corporate body to elect a ruler for itself … or from natural reason on which right is based.' Hostiensis also considered the residual rights the Roman people would possess in the election of a pope if the college of cardinals should become extinct during a papal vacancy.⁴¹ And he discussed in great detail whether the electors of the pope could renounce this right of election. But, as just noted, when he took up this point it was the role of the cardinals rather than that of the Roman people that he considered, and the cardinals held their right by positive canon law. So, here again, Hostiensis did not quite reach the point of discussing the renunciation of natural rights.

Ockham did then introduce a new element into natural law theory by overtly raising this issue. To that extent he was an innovator. But it follows from all the preceding discussion that Ockham's theory of 'ius naturale' was for the most part conservative and conventional. De Lagarde was right in emphasizing the concern with rights, but Kölmel was right in pointing out that this concern arose from the circumstances of Ock-ham's dispute with the papacy rather than from his philosophic voluntarism. Ockham's views on natural law most certainly did not lead him to what Rommen called 'pure moral positivism' indeed to nihilism.' He insisted rather that natural law was ascertainable by right reason and that its moral principles were immutable. His argument provides a typical example of the way in which political ideas often evolve. Ockham set out to use the conventional ideas of his time in a contemporary dispute; but in applying those ideas to his own particular circumstances he made a significant adaption of them. The adaptation has a certain interest for historians of political thought because, as it happens, it raised an issue that would become of great significance in the natural-rights theories of a later age.

I Dialogus 1.8

This passage poses a different question and we can deal with it more briefly. The problem here is one of textual corruption—to determine what Ockham actually wrote. At this point in the Dialogus Ockham's Master claimed to be describing the content of canon law. He asserted that, along with theological doctrines and purely positive laws, the canonistic works included many moral principles that could not be supported by any reason—'moralia quae nulla possunt ratione mu-niri.' This is the one text of the Dialogus that seems overtly to support a 'voluntarist' doctrine of non-rational moral law. De Lagarde naturally made use of it. In spite of Ockham's statement about 'reason which in no case fails' at III Dialogus 2.3.6, de Lagarde wanted to maintain that Ockham's theory of natural law was founded on basically irrational principles. To be sure, Ockham called the permanent moral content of natural law (Natural Law I) a 'dictate of reason,' but in fact, de Lagarde argued, no rational justification for this dictate was presented and it had to be accepted as an indemonstrable postulate. De Lagarde was right up to a point. Ockham was not arguing that moral precepts could be educed by some chain of reasoning. Rather he asserted that reason could perceive them as first principles per se nota. Here Ockham was following a common scholastic usage.⁴² Evidently the word 'reason' was being used in a special sense. Still it would seem perverse for de Lagarde to translate 'dictamen rationis' as 'impératif irrationel'… except that he could appeal to this one text of Ockham—'moralia quae nulla possunt ratione muniri'—to support his interpretation. Francis Oakley also quoted the same text in an article maintaining that Ockham formulated an essentially voluntarist theory of law.⁴³ Kölmel, who found the text inconsistent with his view that Ockham's natural-law theory was basically rational, could only suggest that we ought not to take it literally since it was inconsistent with other passages in Ockham's work. In fact our text stands out awkwardly as a major obstacle to any coherent, consistent interpretation of Ock-ham's natural-law theory.

Even in his earlier ethical writings, where he did not specifically develop a theory of natural law, Ockham often asserted that right reason was a guide to moral conduct.⁴⁴ In his political writings he frequently referred to a rational natural law, and in the Dialogus itself, in the passage already discussed, he found a rational basis for each of his three types of natural law. Such considerations led George Knysh, in an unpublished study,⁴⁵ to doubt the authenticity of the printed version of Ockham's words (and indeed the whole text of the Dialogus in Goldast is notoriously full of corruptions). It might still be argued that Ockham was not a wholly consistent thinker and that he might well have presented differing views in different, widely scattered parts of his work. We can carry the argument further, however. It is not difficult to show that, within the actual context of the discussion in which it occurs, the reading given in our printed texts is simply impossible. The text is corrupt: the problem is to determine how it can reasonably be amended.

The corruption becomes evident if we consider first the broader context of the discussion, then the specific setting of the critical words. At this point in the Dia-logus Ockham was concerned to argue that theologians were better qualified than canonists to determine whether any given assertion was orthodox or contrary to faith. It could be argued on the other side that various definitions of faith were in fact contained in the books of canon law. Ockham responded to this with the rather audacious assertion that canonists were in general not the best exponents of canon law. As for texts of Roman law embedded in the canonistic collections, civilian jurists were more expert; as for nearly all else, theologians and philosophers could provide a more profound insight into the texts. It is at this point that our disputed passage occurs:

The books of the canonists are nothing but collec-tions of authorities… in which some purely theo-logical matters are declared and expounded, as in those in which heresies are condemned… Also certain purely moral principles are transmitted in them which can be defended by no reason [moralia… quae nulla possunt ratione muniri] as is plain in many chapters of the Decretum and Decretals. And some things are commanded and prohibited in them which are merely positive, dependent on human will, and which can reasonably be changed or alto-gether abrogated, as appears at… di 9 Sicut quidem… As regards the moral principles which can be supported by no reason, if they are universal… canonists can in no way excel those who are en-dowed with natural reason and learned in moral philosophy…⁴⁶

This passage raises several questions. The first one is: What has happened to the whole body of rational natural law which Ockham made so much of elsewhere? It has simply disappeared from this account of the content of church law. It is odd that the Disciple—who is usually full of objections—did not notice the omission, and all the more so since in the dialogue surrounding our passage both Disciple and Master referred, in quite conventional fashion, to a natural law known by reason as a part of canon law. At the outset of the discussion the Disciple acknowledged that theologians might have a better understanding of some aspects of canon law—'especially those that are derived from theology or natural reason and that are not merely positive.' After hearing the whole passage quoted above, the Disciple again stated that the Master's argument soun-ded convincing as regards 'theological matters and imperial laws and those that are purely moral and natural.' But there was no 'moral and natural' law in the description that the Master had just given, if we follow the printed texts. Then the Master himself referred to 'natural law, which is not only found in the Law and the Gospel but also in true moral philosophy.' This is consistent with the view Ockham often expressed elsewhere that moral law was known by reason—hence it would be accessible to moral philosophers—but it seems inconsistent with the specific text we are discussing.

But the text is corrupt. The fact will be evident to a reader who approaches it with any elementary knowledge of the canonistic works that the Master claims to be describing. The disputed words—'moralia quae nulla possunt ratione muniri'—occur twice in the passage quoted. At the first occurrence the Master referred to 'moralia which can be supported by no reason, as is plain in many chapters of the Decretum and the Decretals.' But these 'many chapters' do not exist. Gratian and the canonists following him used the term 'moralia' in a quite different sense to designate those teachings of the Old Testament that belonged to natural law and were accessible to human reason. (Ockham actually quoted the relevant text of Gratian making this point a little farther on in the present discussion.⁴⁷) The canonists distinguished the 'moralia' of the Old Testament from its 'ceremonial' precepts precisely because, for these latter, 'no reason can be given.'⁴⁸ Elsewhere in the Dialogus, Ockham called attention to this distinction of the canonists, again quoting Gratian.⁴⁹

At the second occurrence of our text, if Ockham actually intended to write 'moralia quae nulla possunt ratione muniri' then his argument makes no sense. Ockham asserted that, in expounding these 'moral principles which can be supported by no reason,' the canonists 'in no way excel those who are endowed with natural reason and learned in moral philosophy.' But if the 'moralia' under discussion had no rational basis then these moral philosophers would have had no special competence to discuss them. If we adhere to the printed text Ockham's argument is a simple non sequitur.

Clearly Ockham must have intended some different meaning. A final solution of this crux will require a critical study of all the manuscripts of the Dialogus. Meanwhile it is easy to think of various possible emendations. Perhaps the simplest solution, from a paleographical point of view, would be to suppose that Ockham wrote 'moralia quae naturali possunt ratione muniri.' That would make good sense in the context of the argument and abbreviations for 'naturali' and 'nulla' could be very similar in a fourteenth-century hand. But no manuscript evidence is available to support this reading. There are other solutions however, for which some preliminary manuscript evidence can be offered. Referring to the merely positive laws which were subject to variation, Ockham (according to Goldast) cited Dist. 9, Sicut quidem. But there is no chapter with the incipit Sicut quidem in Dist. 9 or anywhere else in the Decretum. The closest parallel is Dist. 14 c2 (Sicut quedam). There Pope Leo I wrote: 'Sicut quedam sunt que nulla possunt ratione convelli ita multa sunt que aut pro necessitate temporum aut pro consideratione etatum oportet temporari… [italics mine].' This is the text Ockham had in mind. A Florence manuscript of the Dialogus gives the correct reference to Dist. 14 c2 and the corresponding reading in Ockham's text, 'moralia que nulla possunt ratione convelli.' Ockham meant to assert here what he asserted so often elsewhere, that moral precepts were immutable, not that they were irrational.

It is still not easy to see how 'convelli' became changed to 'muniri' in the printed editions. But Knysh's suggestion of an intermediate form—'mutari'—proves valuable here, for the Florence manuscript does in fact give 'mutari' at the second occurrence of the text.⁵⁰ The most likely sequence of events is this: Ockham originally wrote 'moralia quae nulla possunt ratione mutari' on both occasions, giving the sense of his canonistic text correctly, but slightly paraphrasing it as he often did with canonistic citations. Then, in one manuscript tradition, a creative scribe, noting the discrepancy between Ockham's words and the actual text of Dist. 14 c2, substituted the 'correct' word 'convelli' at the first occurrence of the text. And, in another manuscript tradition, a careless copyist mistranscribed 'mutari' as 'muniri' on both occasions. For a final version of the text we must await H. S. Offler's critical edition of the Dialogus. For the present it seems clear at least that we can abandon the reading 'moralia quae nulla possunt ratione muniri' and the interpretations of Ockham's thought that have been based on it.

Finally, given Ockham's well-known views on the relative merits of canonists and theologians, it is a pleasing irony that in this instance a little canonistic learning is needed in order to understand what Ockham, the theologian, was trying to convey to his readers.…

Notes

¹ J. Miethke Ockhams Weg zur Sozialphilosophie (Berlin 1969). Miethke provides a good bibliography of earlier work on Ockham.

² H. Rommen The Natural Law (St Louis 1947) 58 (first published as Die ewige Wiederkehr des Naturrechts in 1936)

³ C. Zuckermann 'The Relationship of Theories of Universals to Theories of Church Government in the Middle Ages: A Critique of Previous Views' Journal of the History of Ideas 36 (1975) 579-94

⁴ G. de Lagarde La naissance de l'esprit laique au déclin du moyen-âge 1st ed, 6 vols (Paris 1934-6), 2nd ed, 5 vols (Paris-Louvain, 1956-63). A similar point of view was presented in M. J. Wilks The Problem of So-vereignty in the Later Middle Ages (Cambridge 1964).

⁵ W. Kölmel 'Die Naturrecht bei Wilhelm von Ockham' Franziskanische Studien 35 (1953) 39-85, and 'Wilhelm Ockham—der Mensch zwischen Ordnung und Freiheit' in Miscellanea mediaevalia, ed P. Wilpert (Berlin 1964) 204-29; P. Boehner 'Ockham's Political Ideas' Review of Politics 5 (1943) 462-87; J. B. Morrall 'Some Notes on a Recent Interpretation of William of Ockham's Political Philosophy' Franciscan Studies 9 (1949) 355-69; C. C. Bayley 'Pivotal Concepts in the Political Philosophy of William of Ockham' Journal of the History of Ideas 10 (1949) 199-218; H. Junghans Ockham im Lichte der neueren Forschung (Berlin-Hamburg 1968)

⁶ De Lagarde responded to Kölmel in the second edition of his Naissance. Kölmel reiterated his views in Regimen Christianum (Berlin 1970).

⁷ A. S. McGrade 'Ockham and the Birth of Individual Rights' in Authority and Power: Studies on Medieval Law and Government Presented to Walter Ullmann, ed, B. Tierney and P. Linehan (Cambridge 1980) 149-65; G. Leff William of Ockham: The Metamorphosis of Scholastic Discourse (Manchester 1975) 616. The problem of relating Ockham's philosophy to his political theory is complicated by the fact that the philosophical works themselves are undergoing major re-evaluations by modern scholars such as Boehner. For a more positive approach to Ockham see, for example, H. A. Oberman The Harvest of Medieval Theology (Cambridge Mass 1963).

⁸Decretum Gratiani… una cum glossis (Venice 1600) gloss ad Dist. 56 c6. The view that Ockham first introduced the concept of individual, subjective rights, advanced by Villey, is unpersuasive. See M. Villey La formation de la pensée juridique moderne (Paris 1962) 226-72.

⁹Breviloquium, ed R. Scholz (Stuttgart 1944) 3.15, 138

¹⁰ De Lagarde Naissance VI (1946) 122; Leff Ockham 633

¹¹Inst. 1.2.6; G. ord. ad Dig. 3.1.1.3. On positive law in general see G. Le Bras, Ch. Lefebvre, and J. Rambaud L'âge classique 1140-1378: Sources et théorie du droit (Paris 1965) 385-96.

¹²Summa theologiae 1.2ae 95.2. (Guido de Baisio quoted this passage in his Rosarium.)

¹³ Innocent IV Commentaria ad x3.34.8; Ockham Octo quaestiones 1.11 in Guillelmi de Ockham opera politica I, ed H.S. Offler (Manchester 1974) 47. Compare Breviloquium 3.1 107-8.

¹⁴ On this text see my Origins of Papal Infallibility (Leiden 1972) 194-5, 226. Compare I Dialogus 1.14 in M. Goldast Monarchia S. Romani imperii II (Frankfurt 1614) 421.

¹⁵Opus nonaginta dierum c6, Opera politica I 366

¹⁶ See 'Ockham, the Conciliar Theory, and the Canonists' Journal of the History of Ideas 15 (1954) 40-70 at 45.

¹⁷ Leff Ockham XV

¹⁸ Ibidem 642 and Heresy in the Later Middle Ages I (Manchester 1967) 241, 246, 249. See the comment in my Infallibility 188.

¹⁹ The identification of divine and natural law was very common in Decretist sources. See, for example, Dist. 1 ci, 'Omnes leges aut divinae sunt aut humanae. Divinae natura constant…'

²⁰ The argument has an ob'vious relevance to the actual circumstances of the times—the election of the antipope Nicholas V in Rome and the role of the emperor in the affair.

²¹Dist. I c7

²² Many Decretist texts on natural law are printed in R. Weigand Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus (Munich 1967). For the ones cited above see 148, 196, 219, 255.

²³ Goldast Monarchia 932, 'Uno modo dicitur ius naturale illud, quod est conforme rationi naturali quae in nullo casu fallit, sicut est, non moechaberis, non mentieris, et huiusmodi… ius naturale est immutabile primo modo et invariabile ac indispensabile, dist. 5 nunc antern et dist. 6 his ita respondetur…' Earlier (Goldast 812) Ockham had noted that God could make exceptions to natural law of this sort. But this was not due to any novel 'voluntarism.' Earlier writers often made the same point with reference to the same Old Testament examples that Ockham cited. For canonistic examples see Weigand Die Naturrechtslehre der Le-gisten 407-43.

²⁴ Gratia n Dist. 5 ante c 1, Dist. 6 post c3

²⁵ Guido de Baisio Rosarium decretorum (Strasbourg 1473) np, Dist. I ante cl. For other texts see Weigand's index, sv 'Naturrecht; als (natuirliche) Vernunft.'

²⁶ A. S. McGrade The Political Thought of William of Ockham (Cambridge 1974) 178

²⁷ See Goldast Monarchia 933. The text here is corrupt and we have used the corrected version presented by H. S. Offler in 'The Three Modes of Natural Law in Ockham: A Revision of the Text' Franciscan Studies 37 (1977) 207-17 at 212: 'Aliter dicitur ius naturale, quod servandum est ab illis. qui sola equitate naturali absque omni consuetudine et constitutione utuntur. Quod ideo dicitur naturale quia contraria est contra statum nature institute et, si homines viverent secundum rationem naturalem aut legem divinam, non esset servandum nec faciendum. Isto modo et non primo modo ex iure naturali omnia sunt communia… ex quo concluditur quod ius naturale uno modo accepto vocabulo non est immutabile…' In using the awkward double-negative form 'contrarium est contra sta-tum nature' Ockham perhaps had in mind the parallel phrase of Aquinas, 'natura non inducit contrarium' (Summa theol 1.2ae 94.5 ad 3).

²⁸ Weigand Die Naturrechtslehre der Legisten 147, 388-94

²⁹G1. ord. ad Dist. 1 c7

³⁰ See my Medieval Poor Law (Berkeley-Los Angeles 1959) 32-5, and for a more detailed treatment, G. Couvreur Les pauvres ont-ils des droits? (Rome 1961).

³¹Opus nonaginta dierum c65, Opera politica II 577-8

³²Rosarium ad Dist. I c7. See Summa Fratris Alexandri IV (Quaracchi 1948) 348. The relevant text is usually attributed to John de la Rochelle.

³³ Goldast Monarchia 933; Offler 'The Three Modes of Natural Law in Ockham' 213: 'Tertio modo dicitur ius naturale illud, quod ex iure gentium vel alio aut ex aliquo facto divino vel humano evidenti ratione colligi-tur, nisi de consensu illorum, quorum interest, con-trarium statuatur. Quod poterit vocari ius naturale ex suppositione…'

³⁴ Of course, in a broad sense, every natural law can be said to imply a right. A precept such as 'You shall not steal' implies that one's neighbour has a right to his property. Ockham understood this, as did the canonists, but he was not concerned with the point in the present discussion.

³⁵ The whole problem of Ockham's contribution to the growth of natural-rights theories still awaits a definitive treatment. See the comments of R. Tuck Natural Rights Theories: Their Origin and Development (Cambridge 1979) 22-4.

³⁶Gl. ord. ad Dist. 4 c2

³⁷ Weigand Die Naturrechtslehre der Legisten 228

³⁸ Weigand Die Naturrechtslehre der Legisten 228: 'Item sciendum [est] quod [et] est ius naturale simplex et respectiuum. Simplex quod sine precedenti positione juris positivi demonstrat aliquid equum esse quale est istud "deum diligere", "omnia esse communia". Respec-tiuum est quod demonstrat aliquid equum habito re-spectu ad precedens ius positiuum, quale est hoc: "ad-quisitio eorum que celo" etc.; nisi enim apponatur prius aliquem hominem habere proprium non erit istud equum "acquisito" etc.' Guido de Baisio quoted an analogous doctrine from Laurentius in his Rosarium ad Dist. I c2. Laurentius taught that some laws were 'bona et equa simpliciter,' others 'equa respectu alterius iuris quod est iniquum vel minus equum.'

³⁹ This point does not seem to have been raised before in discussions on natural law, but in the background was a large body of medieval speculation on alienation of sovereignty. See P.

N. Riesenberg Inalienability of Sovereignty in Medieval Political Thought (New York 1956).

⁴⁰ Hostiensis Commentaria ad Decretales (Venice 1581). For a general discussion see Com ad x 3.31.16 112v, and for the cardinals in particular, Com. ad x 1.9.10 91v.

⁴¹Com ad x 1.6.34 60r; ad x 1.6.6 38v

⁴² III Dialogus 2.1.15; Goldast Monarchia 884. Compare Thomas Aquinas 'The precepts of natural law are to practical reason what the first principles of demonstrations are to speculative reason' (Summa theol. 1.2ae 94.2.3).

⁴³ De Lagarde, Naissance VI (1946) 144 n11; F. Oakley 'Medieval Theories of Natural Law: William of Ockham and the Significance of the Voluntarist Tradition' Na-tural Law Forum 6 (1961) 65-83 at 68; Kölmel 'Na-turrecht' 54, n67

⁴⁴ D. W. Clark 'William of Ockham on Right Reason' Speculum 48 (1973) 13-36; L. Urban 'William of Ock-ham's Theological Ethics' Franciscan Studies 33 (1973) 310-50; K. McDonnell 'Does William of Ockham Have a Theory of Natural Law?' Franciscan Studies 34 (1974) 383-92

⁴⁵ G. D. Knysh 'Political Authority as Property and Trusteeship in the Works of William of Ockham' (PhD thesis, London University 1968). Knysh suggested that for 'muniri' we should read 'mutari.' On this see below.

⁴⁶ Goldast Monarchia 405 (the Dialogus was also printed in an edition of Lyons 1494; but Goldast's version was reprinted from this text. Hence the two printed versions do not provide two independent witnesses): 'libri canonistarum non sunt nisi quaedam collationes ex auctoritatibus… in quibus quaedam theologica pure explicantur et declarantur sicut in illis in quibus haereses damantur… Quaedam vero pure moralia traduntur in eis, quae nulla possunt ratione muniri, sicut patet in multis capitulis decretorum et decretalium. Quaedam autem praecipiuntur in eis et prohibentur quae sunt mere positiva ex humana volun-tate dependentia, quae pro necessitate et utilitate possunt rationabiliter variari et penitus abrogari ut patet … di 9 sicut quidem… Quantum vero ad moralia quae nulla possunt ratione muniri, si universalia sunt, nec in memoria nec in intellectu, possunt canonistae naturali ratione praeditos et in philosophia morali instructos et in scientia naturali perfectos excedere quoquo modo.'

⁴⁷ Ibidem 406 [line] 20, citing Gratian's comment at Dist 6 post c3

⁴⁸G1 ord. ad Dist 6 post c3

⁴⁹ III Dialogus 2.2.15; Goldast Monarchia 915: 'moralia mandata ad naturale ius spectant atque nonnullam imita-tionem recepisse monstrantur.' But again the text is corrupt. For 'nonnullam imitationem' read 'nullam immutationem.'

⁵⁰ Ms Florence, Laurenziana Plut XXXVI dext 11 f3ra. The same readings ('convelli' and 'mutari') occur in ms Frankfurt, Staatsbibl lat quart 4. I am grateful to Dr Rega Wood and Professor H.S. Offler for supplying transcripts from these two manuscripts.