Chapter 65
William of Ockham it follows that a lordship of them was made: They say that although the conclusion is true in ene sense, nevertheless he argues badly.
For taking "giving" in one sense, it sometimes does not follow, "This is given by him who can give, and to him who is capable of it, therefore he is made lord." For often someone gives lodging to another — that is, gives him accommodation to stay in for a while — yet the other is not made lord, though he is capable of lordship, They say, therefore, that, using equivocal words, here and often elsewhere, he commits in his arguments the fallacy of equivocation. And no other answer is to be made, for the right answer to sophisms that are faulty through equivocation is to explain the ambiguity of the words.
Just as they did not have lordship of air and sunlight, so they should not have lordship of temporal things: Our first parents did not have lordship of air and sunlight, yet they had lordship of other things, though not the lordship called ownership. fntroduces the comparison only in respect of their not being divided: Some concede this, because just as they could not divide the air and appropriate it while it remained in its place, nor the sunlight, so, if all men had been good, they should not have divided temporal things and appropriated them: after sin, however, they were able to divide temporal things and appropriate them. And so they had a lordship over temporal things such as they did not have over air and sunlight. "Some of the air that I breathe out," etc.: Augustine means that the air remaining in its place outside the human body cannot be appropriated; however, air taken in as nourishment is in some way appropriated, like other nourishment.
Chapter 65 [John XXII] Besides, this heretic will say that he to whom a licence to use some thing is granted uses the thing justly or unjustly, or he uses the thing neither justly nor unjustly. If he says unjustly, that is certainly in harmony with the constitution spoken of above, which says that whoever uses without right uses unjustly. If he says that he uses it justly, it follows consequently that he uses it also by right; because what is done justly is done also by right; (see] Attra, De verborum significatione, c. lus dictum; 14, q. 4, c. Quid dicam. But if he
The Work ofNinety Days says that he to whom the licence to use is granted uses neither justly nor unjustly, this is false. For it is impossible for an individual human act to be indifferent — that is, neither good nor bad, just nor unjust. For since that act is called human which proceeds from deliberate will, and consequently is done for some purpose (which is of course the will's object), if the purpose of the act is good the act must be good also, but if the purpose is bad the act must be bad; for as Augustine says in his book De mortbus ecclesiae, according as the purpose
1s praiseworthy or culpable, so our works are praiseworthy or culpable.
[Ockham] In this part he brings forward a second argument to prove that a person who has licence to use something has a right of using that thing. And first he states it; and second, in the immediately succeeding part, he answers an objection which could be brought against it. The argument is this. Whoever uses something by another's licence, without a right, uses it either justly, or unjustly, or neither justly nor unjustly. If unjustly, that is in harmony with the constitution Ad conditorem. If justly, then by right: Extra,
De verborum significatione, c. fus dictum est, and 14, q. 4, ©. Quid dicam. If neither justly nor unjustly — this cannot be said, for every human act is either just or unjust.
But the attackers say that he tries to refute Catholic lovers of truth, arguing frivolously under the ambiguity of terms. Accordingly, for the unraveling of this argument they first draw a distinction concerning a right; second, they show what right the appellant and the attacked spoke of before; third, they show how temporal things are said to belong to different people in different ways, and how different people are said to possess temporal things in different ways; fourth, they briefly repeat a certain distinction concerning the terms "just," "justice," and "justly"; and fifth, they formally answer the above argument.
Concerning the first, they say that the word "right" is sometimes taken for a right ofthe forum and sometimes for a right of heaven.°
* Jus fori, the right of the law courts, sxs poli, the right of the pole or heavens. (For use of these expressions in the Decretum see Reuter and Silagi; see also gloss to Digest, 1.1.4, ¥. Mam ine) The distinction is, m effect, between positive law (including divine positive law) and natural jaw. In the Latin text sms sometimes clearly means a right as distince from a law {as in the next paragraph} and sometimes (for example in passages quoted from older writers) it clearly means
William of Ockham This distinction is gathered from the words of Augustine, De vita dericarum, which are included in 17, q. 4, last chapter. He says:
"The bishop had the power not to return them, but by right of ' the forum, not by night of heaven." The same distinction is found in the same causa and quaestio, para. Sed notandum. To make the distinction clear it should be known that "the just" that is estab~ lished by human or explicit divine pact or ordinance is called "the right of the forum": accordingly, the right of the forum can also be called the right of custom, taking "custom" in a broad sense.
Of this right it is said in the Deeretum, dist. 6, "The right of custom had its beginning after natural law, when men gathering ittto one began to live together." By these words we are given to understand that this right is established by human pact or ordinance.
After this pact or ordinance [has been] confirmed by custom or law, it should not be violated at the will of anyone at all, as Augustine testifies in Book 0 of his Confessions, quoted dist. 8, c.
Quae contra, He says: "Affronts to the customs of mankind are to be avoided according to the diversity of customs, so that a pact made among themselves confirmed by the custom or law of a people or city should not be violated by the licentiousness of any citizen or stranger." By these words we are given to understand that a right established by human pact should not be violated at the will of anyone at all (though in some cases something can licitly be done against such a right on the authority of a superior, as Augustine makes clear in the same place).
That a right established by human action also should not be violated at will is shown. For according to Isidore, as we read in the Decretum, dist. 1, "Every right stands firm by laws and customs."
But laws and customs should not be violated at will; therefore it is not licit to violate at will a right established by human action, without the authoriry of a superior. That it is not licit to violate customs at will is clear from the chapter of Augustine quoted above, Ouse contra. The same is clear also of jaws, also from Augustine, De vera religtone, as we read in dist. 4, c. In istis, he a law. Sometimes it might mean cither a right or a law, and in those cases we have translated it as "right.'"
On the distinction between the two senses of is involved here see the articles on Ockham's contribution to thinking about rights by Tiemey and McCrrade listed in Suggestions for further reading (p. xxix).
§0 The Work ofNinety Days says: "In the case of these temporal laws, although men judge them when they establish them, nevertheless, once they have been established and confirmed it will not be licit for the judge to judge them, but (he must] judge by them." By these words we are given to understand that laws established by human action should not be violated at the will even of judges; and thus also rights established by human action should not be violated at will.
It follows further that a licence, which by the law of the forum can be revoked by the granter at will, should not be regarded as being among the rights of the forum. (This is especially known to be true when the granter of the licence is not the superior of the person to whom the licence is granted; this is said on account of a ruler granting someone a privilege which he can revoke at will and which, nevertheless, not with respect to the ruler but with respect to subjects, has the force of law.) But the natural equity that is, without any human ordinance or any merely positive divine ordinance, in harmony with righc reason — in harmony either with purely natural right reason or with right reason taken from things revealed to us by God' — is called "the right of heaven". Accordingly, this right is sometimes called
"natural right," for every natural right pertains to the right of heaven. Sometimes it is called divine right, for many things are in harmony with right reason taken from things revealed to us by God which are not in harmony with purely natural reason. For example, it is in harmony with right reason taken from the articles of belief that those who preach the gospel should be sustained from the goods of those to whom they preach (at least if they do not otherwise have means of sustenance}, yet this cannot be proved by a purely natural argument, just as it cannot be sufficiently proved by such an argument that the things they preach are true, useful, and necessary to those to whom they preach.
Second, they say that the appellant and the attacked, when they disagree whether use of things without a right of using can be licit, are speaking of a right of the forum. That the appetlant spcaks thus is certain, and he himself concedes it. That the attacked speaks thus is certain from the fact that in this part he speaks of * Compare the second alternative here with the third kind of natural ifaw in mI
Del, w 3.6, translated below (pp. 287-8).
William of Ockham the right of using in the way in which the attackers he is answering in his constitution Quia quorundam speak of the right of using, and in the way in which Nicholas [I speaks of it in his decretal Evze, when he says that "in temporal things we must consider ownership, possession, usufruct, the right of using, and simple use of fact," and when he says, "This use, ] say, having the name not of right, but only of fact, offers to the users only what is of fact in using, nothing of right." That he [the attacked] speaks in the way that these (the attackers and Nicholas INI] do is manifestly clear from chapters 2, 6, 31, 32, 37, 42, 55, 58, and 60; but these speak of a right of using that exists by the right of the forum. That the attackers speak of such a right is plain and certain, for they speak there of the right by which one can litigate in court, and such a right is a right of the forum; therefore, etc, That Nicholas also speaks of such a right in the above words is clear, for denying to the brothers'? a right of using he does not deny them a right of heaven bui explicitly concedes it; he therefore does not speak of the right of heaven but of the right of the forum.
[t is certain, therefore, that the words of the attacked should be understood of the right of the forum. For otherwise he would not refute except sophistically the attackers he is answering in the constitution Quia quorandam or the appellant or the Friars Minor who say that they have nothing of right in the things they use; for all these refer to a right of using that is understood to pertain to the right of the forum.
Third, they show how temporal things are said to belong to different people in different ways. [1] They say that temporal things are said to belong to some people from worthiness of merit. In this way everything belongs to the just — that is, the just are worthy to possess everything; and in this way no temporal thing belongs to the wicked, for a wicked man is not worthy even of the bread he eats. And therefore, because God made everything for the sake of the just, it is said that in a way everything belongs to the just by divine law, as Augustine says in 4d Vincentium, quoted 23, q.
7, ¢. 1: "Although no earthly thing whatever can rightly be possessed by anyone except either by divine law, by which everything belongs to the just," etc, - that is, only the just are worthy of ali temporal
@ That is, to the Friars Minor.
§2 The Work ofNinety Days things. [2] In another way earthly things are said to belong to some people by the necessity or the moral integrity of a debt, namely because they are due to them by right reason. In this way the superfluities of the rich belong to the poor and needy, namely because the rich are obliged to donate their superfluities to them.
In this way the words of Ambrose [rather, Basil} should be understood, quoted dist. 47, c. Sieut Ait, when he says: "The bread you keep belongs to the hungry; the clothes you shut away belong to the naked; the money you hide in the earth is the ransom and release of the unfortunate." In this way also the property of the Church is said to belong to the poor. Things said to belong to someone in this way can be said to be theirs by divine law, for by divine law those who possess them are obliged to give them up to the poor. [3} In a third way temporal things are said to belong to some people by right of heaven, and sometimes at the same time by right of the forum and in good conscience. In this way things someone uses in a situation of extreme necessity are his, whether they are his by right of the forum or not. [4] Fourth, things are said to belong to someone by sincerity of conscience. In this way temporal things are said to belong to those who are known to have them, not from avarice or bad intention, but moved by reason; but they de not belong in this way to those who keep them from avarice or bad intention. Thus Ambrose says in the same place,
"But the avaricious man says, 'Why is it unjust, if [ da not invade what belongs to another, if 1 look after my own with diligence?'
O shameless saying! What do you call your own? Which things?
From which hidden places have you brought them into this world? ... Let no one call his own what is common, what is more than is sufficient for his expenses, what has been obtained by violence ... Who is so unjust, $0 avaricious, as someone who makes the food of many not his use, but his abundance and pleasure?"
[5] Fifth, some temporal things are said to belong to someone by right of the forum only. And this way |of belonging) is divided into many. For things belong to someone by right of the forum either in respect of ownership and lordship or in respect of bare use or in respect of usufruct, and perhaps in other ways. In this way some things can belong to some persons although they do not belong to them in any of the four previous ways, and thus the avaricious have many things by right of the forum of which they vey uA NARE EDEN TCAD ETE AATEC sos nk rm AEN A SS"
William of Ockham are unworthy, which are owed not to them but to others, which they keep for themseives not from a right conscience but only from avarice.
From these points it is clear that different people are known to possess temporal things in different ways: for some possess temporal things by right of the forum, such as those who possess temporal things by human laws or divine pasitive laws; some possess temporal things by right of heaven, such as those whe in a time of extreme necessity possess temporal things, which they also use; some possess them in good conscience; some possess temporal things by no right and not in good conscience, such as tyrants, usurers, and others who possess temporal things utjustly.
Fourth, they repeat!' a distinction about "justice," "just," and "justly." Some justice is particular, in distinction from the other virtues, some is legal justice, and some is the justice by which an action is conformed with right reason, And correspondingly an act is said to be just or unjust in three ways, and something is said to be done justly or unjustly in three ways.
Fifth, by means of the foregoing the attackers formally answer the argument of the attacked, as follows. They say that when it is taken [as a premise] that "someone to whom a licence (namely a licence that is not a right) has been granted to use something uses it either justly, or unjustly, or neither justly nor unjustly," they say that if "justly" is taken in the first way, as something is said to be done justly because it is done by the particular justice that is a virtue distinct from the other virtues, in that sense he uses it neither justly nor unjustly; for taking "justice" and "just" that way, there are many acts, even meritorious or demeritorious acts, which are neither just nor unjust (though they are good or bad, praiseworthy or blameworthy), for even an act of chastity is in that way neither just nor unjust. But if "justly" is taken in the third way, in that way they say that he uses the thing for which he has the licence to use justly, because he uses it in conformity with right reason. And for that reason they concede that he uses by right — not indeed by right of the forum, but by the right of heaven; for everything done rightly without a right of the forum is done by " From 60.120-60. There Ockham quotes Thomas Aquinas, Savna theologiae, 2-2, q. 58, a. 2. See also Aristotle, Micomachean Ethics, V.2, 1130 at3~ts.
The Work ofNinety Days right of heaven. Thus to do by right in this way is simply to do well morally, to use by right is to use well morally, and to possess by right is to possess well morally.
But perhaps someone will say that it is not by right of heaven that such a person uses the thing granted te him, just as he does not possess it by right of heaven, because no one uses any thing by right of heaven except one who uses such a thing in a time of extreme necessity. Nicholas III seerns to suggest this when he says in the decretal Audit: "And indeed, if these all fail (as is not ta be presumed in any way), the way of providing for the sustenance of nature in a situation of extreme necessity that is granted by the law of heaven to all caught in extreme necessity is not closed to the brothers, just as it is not to others." These words seem to suggest that no one is permitted to use things by right of heaven unless he is living in a situation of extreme necessity. To this they say that although Nicholas says that it is permitted by the law of heaven to everyone living in a situation of extreme necessity to use things necessary to sustain life, nevertheless he does not deny that some may in other cases use things by right of heaven.
To make this clear, they say, it must be known that to use temporal things pertains to a right of nature that no one can licitly renounce. However, it does not pertain to natural right in such a way that it cannot in many cases be limited and in some way restricted and impeded so that it does not licitly issue in an act.
In this way, according to Isidore, as we read in dist.
1, c. lus naturale, "The common possession of all things and the one liberty of all" pertain to natural right, and yet that right is in a way restricted, because, also, temporal things are appropriated and many people are subjected to servitude. However, this natural right cannot be emptied totally, because temporal things can never be appropriated in such a way that it is not true that they ought to be common in time of necessity. Thus the power 10 use temporal things can in a way be restricted by human law and by a free man's own will and can sometimes be impeded so as not to issue in amy act of using (for thus one can by vow resolve that one will abstain from flesh, thus also men are prohibited from using the things of others), but the power to use temporal things cannot be eradicated totally,
And therefore, anyone can use by right of heaven any temporal thing whatever that he is not prohibited from using either by natural
Witham of Ockham law or by human law or by divine law or by his own act. And therefore, in time of extreme necessity, anyone can use by the law of heaven any temporal thing whatever without which he cannot preserve his own life; for in this case he is not obliged not to use a temporal thing by any law whatever or by his own act.
But when someone is prevented from using some determinate temporal thing only by the fact that it is another's (for except in case of extreme necessity one ought not ta use another's thing in which one has no right, apart fromm natural right, against its owner's will}, the mere permission of the owner, expressed through a Nicence, is enough for him to use that thing by right of heaven.
The permission, and consequently the licence, merely removes the impediment preventing one who has a natural right of using from going on to an act of using, and does not give him any new right.
Therefore, one who has such a permission or licence can by right of heaven use the thing which is another's. That no new right is conferred on someone given a licence is proved by the following argument. Every right is either divine or human, and, if human, is a right either natural and of heaven or positive and of the forum.
But it is certain that such a permission or licence does not confer any divine right or a right of heaven or natural right. If, therefore, a right is conferred on one having the licence, such a right pertains to the right of the forum, and therefore he would use the thing by a right of the forum. This is certainly false. For by every right of the forum one can litigate in court; but such a person does not have any right by which he can litigate in court; therefore he does not use the thing by right of the forum. He uses it therefore only by right of heaven. But it is when he is licensed or permitted that he first uses the thing licitly by nght of heaven and not before then; for what prohibits the natural right from issuing into an act of using has now been removed, and it was by no means removed before. And from this ic is clear that, if they have in things no positive right common to themselves and ali other believers, the Friars Minor use whatever things they licitly use by right of heaven and not by right of the forum, however much they may be outside a situation of extreme necessity: for they cannot renounce the natural right of using, yet they can by vow resolve that they do not wish to have any thing of their own or any right of their own in temporal things, and therefore they cannot use any thing by a The Work ofNinety Days right of the forum.
If they ought to use another's thing, what prohibits their doing so must be removed; it is removed by the permission or licence of the person to whom it pertains to give permission or licence; and when it is removed, the right of heaven can issue into an act. If they use anything that is granted to whoever takes it' or is regarded as abandoned, they use it by right of heaven, because with respect to such a thing there is no impediment prohibiting their natural right of using from issuing into an act of using.
{On the letter] Whoever uses mithout right uses unjustly: Here the attacked supposes that someone can use something without a right.
This should be understood of the right of the forum, for no one can use any thing without any natural right, since natural right is common to all, dist. 1, c. fus naturale; and so it is certain that the . attacked speaks of the right of the forum. If he says that he uses it justly, it follows consequently that he uses it also by right: It is true that it follows that he uses it by right of heaven or by nght of the forum. Because what is done justly 1s done also by right: It is true that it is done by right of heaven or by right of the forum; but it need not always be done by right of the forum.
"Extra," "De verborum significatione," c.
"Tus dictum; ig, 4G. 4, ¢ "Quid dicam": The attackers say that since the words in these chapters on which he bases his position seem obscure, they wish to quote them and explain how they ought to be understood. They are as follows: "For this is possessed by right which justly, this justly which well." These words suggest two propositions, namely that everything which is possessed well is possessed justly and that everything which is justly possessed is possessed by right. From these a third follows, namely that everything that is possessed well is possessed by right; from this it seems to follow that everyone who uses some thing well uses it by right, and thus a good act'? of using cannot be separated from a right of using.
But they say that the chapters fisted above speak disjunctively (or equivalently) of the right of heaven and the right of the forum.
Now the right of heaven is nothing but a power conforming to right reason without a pact; the right of the forum is a power
*? That is, something able to be appropriated but not yet appropriated.
@ Substitunng actus for asus.
Dee ht ET William of Ockham resulting from some pact, sometimes conforming with right reason and sometimes not. And no one possesses a thing well unless he possesses it according to right reason. And so whoever possesses well possesses either by right of heaven or by right of the forum, and whoever possesses by right of heaven possesses well but not everyone who possesses by right of the forum possesses well. Fram this it follows that the above words cannot be understood only of the right of the forum; for many things are possessed by right of the forum which are not possessed well, and many things are possessed well which are not possessed by the right of the forum.
That many things are possessed by right of the forum which are not possessed well is quite clear [1] in the case of the avaricious, who possess many things by right of the forum which they do not possess well, and also [2] in the case of the many things they possess by right which nevertheless they use badly and in consequence do not possess well, as Augustine testifies in the chapter referred to,
Quid dicam, when he says, "But he possesses badly who uses badly," and Isidore, in the chapter referred to, Zus dictum est, says, "He possesses badly who uses his own badly, or encroaches upon others' things." From these words we gather evidently that some possess their own thing badly, and consequently many things are possessed by right of the forum which are nevertheless possessed badly. That, also, many things are possessed well which are by no means possessed by right of the forum is clear. For whoever jegitimately prescribes possesses well another's property before the prescription is complete, yet before the prescription is complete does not possess by any right of the forum; therefore many things are well possessed which are not possessed by any right of the forum. The chapters listed above therefore do not speak only of the right of the forum but also of the right of heaven, and so it cannot be inferred from them that whoever uses another's thing by the ather's licence uses it by right of the forum; it is enough that he uses it by right of heaven. But in proving that licit use can be separated from a right of using, the appellant does not speak of the right of heaven but of the right of the forum, as he often explains clearly. The foregoing argument against the appellant therefore proves nothing.
Neither justly nor unjustly: If "justly" and "unjustly" are taken in the first way there is no unsuitability. Accordingly, someone who gives another something out of generosity, not because of some