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)

In the debate on the origin of modern natural rights, the French philosopher Michel Villey became famous for his counter current theses: that the origin of modern subjective rights was a “deformation” or “degeneration” of the ancient and medieval concept of law; that those responsible for this rupture were Ockham and his nominalist disciples, as well as the Scholastics of Salamanca; that these last ones betrayed the thought of Aquinas on the right adhering to the nominalist. These theses serve the (...) purpose of justifying Villey’s radical opposition to the subjective foundations of modern human rights. The reply of the historian of medieval law, the Englishman Brian Tierney, is that Villey’s conception of ancient and medieval law is too restricted; that already in Roman law there was a notion of subjective rights; that the origin of modern subjective rights does not depend only on Ockham’s nominalism, but was already present in the medieval canonists; that the scholastics of Salamanca did not betray the Thomist thought, but they brought it up to the challenges of the new times; and that the idea of ​​subjective natural rights does not depend on a particular ideology, but is compatible with different ideologies and worldviews. In revisiting this debate, our main interest concerns the conclusions that Villey draws from the entire long historical trajectory he has studied, and the criticism that Tierney makes of his radical opposition to human rights. Finally the debate gives rise to some more general considerations about the history of concepts and the distinction between the historical genesis of the ideas and their validity. (shrink)

Recent work on blameworthiness has prominently featured discussions of guilt. The philosophers who develop guilt-based views of blameworthiness do an excellent job of attending to the evaluative and affective features of feeling guilty. However, these philosophers have been less attentive to guilt’s characteristic action tendencies and the role admissions of guilt play in our blaming practices. This paper focuses on the nature of guilty confession and argues that it illuminates an important function of blame that has been overlooked in the (...) recent work on guilt as it relates to blameworthiness: Blame can communicate respect. (shrink)

"Every other is truly other, but no other is wholly other." This is the claim that Aspects of Alterity defends. Taking up the question of otherness that so fascinates contemporary continental philosophy, this book asks what it means for something or someone to be other than the self. Levinas and those influenced by him point out that the philosophical tradition of the West has generally favored the self at the expense of the other. Such a self-centered perspective never encounters the (...) other qua other, however. In response, postmodern thought insists on the absolute otherness of the other, epitomized by the deconstructive claim "every other is wholly other." But absolute otherness generates problems and aporias of its own. This has led some thinkers to reevaluate the notion of relative otherness in light of the postmodern critique, arguing for a chiastic account that does justice to both the alterity and the similitude of the other. These latter two positions--absolute otherness and a rehabilitated account of relative otherness--are the main contenders in the contemporary debate.The philosophies of Emmanuel Levinas and Gabriel Marcel provide the point of embarkation for coming to understand the two positions on this question. Levinas and Marcel were contemporaries whose philosophies exhibit remarkably similar concern for the other but nevertheless remain fundamentally incompatible. Thus, these two thinkers provide a striking illustration of both the proximity of and the unbridgeable gap between two accounts of otherness.Aspects of Alterity delves into this debate, first in order understand the issues at stake in these two positions and second to determine which description better accounts for the experience of encountering the other.After a thorough assessment and critique of otherness in Levinas's and Marcel's work, including a discussion of the relationship of ethical alterity to theological assumptions, Aspects of Alterity traces the transmission and development of these two conceptions of otherness. Levinas's version of otherness can be seen in the work of Jacques Derrida and John D. Caputo, while Marcel's understanding of otherness influences the work of Paul Ricoeur and Richard Kearney.Ultimately, Aspects of Alterity makes a case for a hermeneutic account of otherness. Otherness itself is not absolute, but is a chiasm of alterity and similitude. Properly articulated, such an account is capable of addressing the legitimate ethical and epistemological concerns that lead thinkers to construe otherness in absolute terms, but without the "absolute aporias" that accompany such a characterization. (shrink)

Authors have a lot of leeway with regard to what they can make true in their story. In general, if the author says that p is true in the fiction we’re reading, we believe that p is true in that fiction. And if we’re playing along with the fictional game, we imagine that, along with everything else in the story, p is true. But there are exceptions to these general principles. Many authors, most notably Kendall Walton and Tamar Szabó Gendler, (...) have discussed apparent counterexamples when p is “morally deviant”. Many other statements that are conceptually impossible also seem to be counterexamples. In this paper I do four things. I survey the range of counterexamples, or at least putative counterexamples, to the principles. Then I look to explanations of the counterexamples. I argue, following Gendler, that the explanation cannot simply be that morally deviant claims are impossible. I argue that the distinctive attitudes we have towards moral propositions cannot explain the counterexamples, since some of the examples don’t involve moral concepts. And I put forward a proposed explanation that turns on the role of ‘higher-level concepts’, concepts that if they are satisfied are satisfied in virtue of more fundamental facts about the world, in fiction, and in imagination. (shrink)

Aristotle's essentialism is generally recognized as involving a distinction between what belongs to something _in itself (kath' hauto) and what belongs to it _accidentally (kata sumbebekos). But he distinguishes two relevant senses of "_in itself"; the first referring to what belongs to something in _what it is, the second referring to such attributes as: odd to number, male to animal, curved to line, and white to surface. I set out these distinctions, and argue that Aristotle counts the second class of (...) _in itself attributes as being just as essential to the individual substances to which they belong as the first. (shrink)

In his second book, Tierney argues that the purpose of education must move to the heart of the educational debate. Purpose will significantly influence what schools and the education system as a whole will do next.

There are three conventionally held views about the relationship between mankind and nature in the Roman villa: man is master over the natural landscape; villas were positioned at vantage points so that the downward gaze of a dominus reinforced his domination; gardens offered opportunities to bring order upon nature. This article argues to the contrary that Manilius Vopiscus’ villa in Statius’ Siluae 1.3 presents a harmonious relationship between key natural features, the villa architecture and the villa proprietor himself. Nature sometimes (...) takes precedence, while the villa complements and integrates with the environment. This allows us to appreciate the nuances in Statius’ overall presentation of the relationship between mankind and nature in Book 1 and in other poems in the Siluae. (shrink)

Normative Externalism argues that it is not important that people live up to their own principles. What matters, in both ethics and epistemology, is that they live up to the correct principles: that they do the right thing, and that they believe rationally. This stance, that what matters are the correct principles, not one's own principles, has implications across ethics and epistemology. In ethics, it undermines the ideas that moral uncertainty should be treated just like factual uncertainty, that moral ignorance (...) frequently excuses moral wrongdoing, and that hypocrisy is a vice. In epistemology, it suggests we need new treatments of higher-order evidence, and of peer disagreement, and of circular reasoning, and the book suggests new approaches to each of these problems. Although the debates in ethics and in epistemology are often conducted separately, putting them in one place helps bring out their common themes. One common theme is that the view that one should live up to one's own principles looks less attractive when people have terrible principles, or when following their own principles would lead to riskier or more aggressive action than the correct principles. Another common theme is that asking people to live up to their principles leads to regresses. It can be hard to know what action or belief complies with one's principles. And now we can ask, in such a case should a person do what they think their principles require, or what their principles actually require? Both answers lead to problems, and the best way to avoid these problems is to simply say people should follow the correct principles. (shrink)

We provide a new interpretation of Zeno’s Paradox of Measure that begins by giving a substantive account, drawn from Aristotle’s text, of the fact that points lack magnitude. The main elements of this account are (1) the Axiom of Archimedes which states that there are no infinitesimal magnitudes, and (2) the principle that all assignments of magnitude, or lack thereof, must be grounded in the magnitude of line segments, the primary objects to which the notion of linear magnitude applies. Armed (...) with this account, we are ineluctably driven to introduce a highly constructive notion of (outer) measure based exclusively on the total magnitude of potentially infinite collections of line segments. The Paradox of Measure then consists in the proof that every finite or potentially infinite collection of points lacks magnitude with respect to this notion of measure. We observe that the Paradox of Measure, thus understood, troubled analysts into the 1880’s, despite their knowledge that the linear continuum is uncountable. The Paradox was ultimately resolved by Borel in his thesis of 1893, as a corollary to his celebrated result that every countable open cover of a closed line segment has a finite sub-cover, a result he later called the “First Fundamental Theorem of Measure Theory.” This achievement of Borel has not been sufficiently appreciated. We conclude with a metamathematical analysis of the resolution of the paradox made possible by recent results in reverse mathematics. (shrink)

The essays in this volume trace the fluid movement between phenomenological and religious descriptions of the capable self that emerges across Ricoeur's oeuvre ...

In the target article, “Revive and Refuse: Capacity, Autonomy, and Refusal of Care After Opioid Overdose,” Kenneth D. Marshall and collaborators (2024) highlight important complexities in the care...

The De Malo represents some of St. Thomas Aquinas' most mature thinking on goodness, badness, and human agency. Together with the second part of the Summa Theologiae, it is one of his most sustained contributions to moral philosophy and theology. Aquinas examines the full range of questions associated with evil: its origin, its nature, its variety, its relation to good, and its compatibility with the existence of an omnipotent, benevolent God. This edition offers the Leonine Commission's authoritative edition of the (...) Latin text with a new, clear, and readable English translation by Richard Regan with an extensive introduction and notes by Brian Davies. (shrink)

In mid-February 45b.c.e., in a tragedy that was to plunge the orator into seemingly irreparable despair, Cicero's beloved daughter Tullia died. She had given birth nearly a month before and at first seemed to be doing well. Soon, however, her health gave out and Cicero took her to his Tusculan villa to recover. In the end, there was little that could be done. After her funeral, Cicero stayed for about three weeks with Atticus in Rome, but the constant stream of (...) visitors offering condolences became too much to bear, and on the sixth of March the heartbroken father retired to a villa he owned on the coast at Astura, some 45 miles south of Rome. Three days later he dispatched the following anguished epistle (Att. 12.15):Apud Appuleium, quoniam in perpetuum non placet, in dies ut excuser videbis. in hac solitudine careo omnium colloquio, cumque mane me in silvam abstrusi densam et asperam, non exeo inde ante vesperum. secundum te nihil est mihi amicius solitudine. in ea mihi omnis sermo est cum litteris. eum tamen interpellat fletus; cui repugno quoad possum, sed adhuc pares non sumus. Bruto, ut suades, rescribam. eas litteras cras habebis. cum erit cui des, dabis. (shrink)

This article considers the recent publications of French philosopher Simone de Beauvoir, and offers an overview of contemporary scholarship in Beauvoir Studies. Beauvoir’s canonization in Gallimard’s La Pléiade collection in 2018 is discussed, specifically Gallimard’s choice of Beauvoir’s Mémoires for these first two volumes. Exploring the imbrication of Beauvoir’s philosophy with her own lived experience, the article traces what Annie Ernaux describes as the ‘running threads’ connecting us, namely the ways in which Beauvoir’s legacy is interwoven in our lives today. (...) Surveying recent scholarship highlights the pertinence of Beauvoir’s work to contemporary contexts on issues ranging from sexual violence, subjective agency and female subjugation to emancipatory politics and transnational feminist solidarities. Thereafter, the importance Beauvoir placed on self–Other relations is explored in relation to scholarship on Beauvoir’s epistolary exchanges, the publication of her lost novella Les Inséparables, and on Beauvoir’s philosophy of alterity and old age in light of the pandemic. (shrink)

It is widely accepted that there is what has been called a non-hypocrisy norm on the appropriateness of moral blame; roughly, one has standing to blame only if one is not guilty of the very offence one seeks to criticize. Our acceptance of this norm is embodied in the common retort to criticism, “Who are you to blame me?”. But there is a paradox lurking behind this commonplace norm. If it is always inappropriate for x to blame y for a (...) wrong that x has committed, then all cases in which x blames x (i.e. cases of self-blame) are rendered inappropriate. But it seems to be ethical common-sense that we are often, sadly, in position (indeed, excellent, privileged position) to blame ourselves for our own moral failings. And thus we have a paradox: a conflict between the inappropriateness of hypocritical blame, and the appropriateness of self-blame. We consider several ways of resolving the paradox, and contend none is as defensible as a position that simply accepts it: we should never blame ourselves. In defending this startling position, we defend a crucial distinction between self-blame and guilt. (shrink)