The relationship between the law of nations and natural law clearly needed to be sorted out, and there were also problems about property and slavery. Isidore’s text as quoted by Gratian says that natural law establishes ‘‘the common possession of all things,’’ but also that it allows ‘‘the acquisition of what is taken from air, land and sea’’ and requires ‘‘the restitution of an article given in trust or money loaned.’’ The common possession of all things seems inconsistent with the acquisition and restitution of property. There was also conflict between natural law and human law. Gratian and Isidore say that by natural law all things are common, and according to Augustine property exists by human law: if natural law invalidates any contrary human law, as Gratian says it does, how can human law establish property?
One solution was offered by Rufinus, one of the early commentators on Gratian. According to Rufinus (pp. 6-7), natural law includes commands, prohibitions, and demonstrationes. By demonstratio (which can perhaps be translated ‘‘indication’’) natural law points out what is fitting or shows what is good (demonstrat quod convenit, bona esse ostendit). According to Alexander of Hales (vol. 4, p. 348), by ‘‘demonstration’’ Rufinus means ‘‘advice’’ (consilium). Demonstrations include the ‘‘one liberty of all’’ and ‘‘common possession of all things.’’ Unlike commands and prohibitions, demonstrations can be set aside for a good reason - to do so in some circumstances may serve purposes recommended by natural law (e. g., the enslavement of criminals may serve peace and justice). Demonstrations are not merely ‘‘licit’’ or ‘‘permitted.’’ Natural law not only permits but recommends certain things, such as freedom and community, without commanding them.
Others offered a solution based on the idea of permission or concession. They suggested that property and slavery exist by the permission of the natural law. (Tierney has discussed permissive law in many places: see Tierney 1997, index ‘‘Natural Law, permissive”; Tierney 2001; Tierney 2002: 399ff). But the idea of “permissive” natural law needs clarification. In civil law, a positive or explicit permission may be needed to correct other laws. Corrective provisions will not be needed in natural law, which is not the imperfect work of human legislators. Implicit permission may be given, however, by the silence of the law - that is, when the law includes no command or prohibition on some matter - under the general understanding that what is not prohibited is permitted. Thomas Aquinas (ST 1-2 q.94 a.5 ad 3) and many who followed him held that the question whether goods should be common or private is left open by natural law to be decided by human beings - natural law does not command or prohibit either. Property would have been legitimate also in the state of innocence. Community belongs to the natural law ‘‘negatively’’ as some later writers put it, meaning that it belongs to natural law in that natural law permits it. However, as Suarez realized, it is not enough to say that natural law merely permits either community or property, freedom or slavery; rather, community and freedom are the preferred state for mankind, to be set aside only for good reasons, pertaining to natural law ‘‘positively’’ (see Suarez, II. xiv.16-19, vol. 4 p. 33ff). Suarez in effect returns to Rufinus’ notion of “demonstrations,” things that are recommended though not commanded.
The Summa fratris Alexandri put forward another possible solution. This Summa reported Rufinus’ distinction between precept and ‘‘demonstration’’ (Alexander of Hales, vol. 4, p. 348), and the distinction between precept and permission as stated by Hugh of St Victor (pp. 351-352), but also suggested that natural law may give different precepts for different circumstances. (This is based on Augustine’s explanation of how the same God can be the author of the Old Law and of the New.) Adam’s sin introduced a great change of circumstances, and in view of this difference natural law prescribes the one liberty and community of goods for the state of innocence but for the fallen state prescribes slavery (for some) and property (p. 348). The leading Franciscan theologian of the next generation, Bonaventure, adopted a similar position (Bonaventure, 2 Sent., dist. 44, a. 2, q. 2, ad 4, vol. 2, p. 1051). Similarly, Scotus held that community of goods is highly consonant with natural law for the state of innocence, property for the fallen state (see below). Ockham followed Alexander and Bonaventure (see below).
Some civil lawyers in the later middle ages (e. g., Bartolus, Paulus de Castro) tried to answer the questions whether, and how, property exists by the law of nature by suggesting that property in moveables (e. g., consumables) is basic and natural, whereas property in immovables (e. g., land) developed in the secondary law of nations in imitation of property in movables: thus one kind of property is natural, the other conventional. All of this was later taken over by Grotius in De iure praedae (see Kilcullen 2001b: 905ff; on Bartolus see editor’s note in Suarez, vol. 4, p. 130, n. 274). Whether property exists by natural law, the law of nations, civil law or divine positive law continued to be debated into the eighteenth century.
World History
