William of Occam and the Higher Law, II*

Max A. Shepard

American Political Science Review, 1933, vol. 27, issue 1, 24-38

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

Date: 1933
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