Academic journal article Journal of the History of Ideas

Jean Barbeyrac's Theory of Permissive Natural Law and the Foundation of Property Rights

Academic journal article Journal of the History of Ideas

Jean Barbeyrac's Theory of Permissive Natural Law and the Foundation of Property Rights

Article excerpt

Jean Barbeyrac was born in Beziers in 1674, fleeing with his family to Lausanne after the Revocation of the Edict of Nantes.1 The son of a Reformed pastor, Barbeyrac hoped to join the ministry; however, he discovered this door closed to him on account of his alleged Socinianism.2 Instead he devoted himself fully to the study of natural law. In 1697, he took up a teaching position in Berlin, followed in 1711 by the chair of law and history at the Academy of Lausanne, and then, in 1717, the chair of law at the University of Groningen, where he remained until his death in 1744.

Barbeyrac first established his scholarly reputation in the early eighteenth-century Republic of Letters with his translations of Samuel Pufendorf's (1632-94) natural law treatises: De jure naturae et gentium libri octo (1672) and De officio hominis et civis libri duo (1673), which became, respectively, Le droit de la nature et des gens (1706) and Les devoirs de l'homme et du citoyen (1707).3 Both texts were accompanied by an extensive commentary in the form of notes, in which Barbeyrac developed his own theory of natural law. He revised and augmented this theory in subsequent editions of both texts and further supplemented it in the notes to his translation of Hugo Grotius's (1583-1645) principal treatise: De jure belli ac pacis libri tres (1625), Le droit de la guerre et de la paix (1724).4 These natural law translations were widely read and studied in the eighteenth century, thus making his commentaries an important medium for the dissemination of natural law to a cosmopolitan, Francophone audience in the eighteenth century.5

The character of Barbeyrac's enterprise means that his thought is often developed in dialogue with Pufendorf and Grotius. As a result, it is the issues that were pertinent to Pufendorf and Grotius that have shaped the questions asked about Barbeyrac. This focus has encouraged a rich and varied scholarship, but this should be extended to include concepts upon which Barbeyrac himself placed particular emphasis.6 The concept of permissive natural law offers an important example of this, not least because of the way in which it connects Barbeyrac's idea of conscience as a faculty of moral judgment with his wider natural law theory.7 As this paper will show, Barbeyrac employed the language of permissive natural law to his own ends, that is, to situate the judgments of conscience-in the sphere of indifferent actions-within a juridical framework.

The concept of permissive natural law has received relatively little attention in the scholarship on early modern natural law. This has been attributed to the fact that many canonical figures made only minimal use of the concept within their natural law theories.8 Recent studies by Brian Tierney and Joachim Hruschka suggest, however, that permissive natural law constituted an important current of thought within the works of several now less known natural law thinkers. For those who employed the language of permissive natural law, it provided the foundation for the institution of property rights, an argument that Immanuel Kant (1724-1804) adopted and modified in his later theory of property rights. Both Tierney and Hruschka relegate Barbeyrac's contribution to a footnote reference, Tierney dismissing Barbeyrac for having a theory of permissive law only with regard to civil not natural law.9 This is not surprising given that Barbeyrac's theory of permissive natural law often remains in the shadows in the development of his key arguments, property rights included. Yet this paper will suggest that Barbeyrac developed a distinctive theory of permissive natural law and that this theory provided a conceptual framework that is fundamental to understanding his account of the foundation of property rights.

Setting Barbeyrac's account of property rights in this context casts new light on his response to the two early modern authors with whom he engages at greatest length on the topic of property rights: namely, Samuel Pufendorf and John Locke (1632-1704). …

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