MORAL SELF-OWNERSHIP AND IUS POSSESSIONIS IN SCHOLASTICS

Abstract

In recent years various attempts have been made to trace the origins of modern subjective rights back to scholastic sources. Medieval law, the dispute about Franciscan poverty, scholastic nominalism, and medieval conciliarism have been thoroughly scrutinised in this context.¹ The contribution of early modern casuistry to the emergence of modern ideas of subjective rights, however, has not received much attention. This is subjective rights. Rights were not only postulated in connection with legal claims in public courts, but also in the court of conscience (forum conscientiae). An important strand of Catholic casuistry assumed that in the absence of firmly recognisable moral restrictions an individual has a liberty right (ius libertatis) or possessive right (ius possessionis) to morally unrestricted agency. The notion of possession relates this set of ideas to the rise of modern liberalism. We should, therefore, include casuistical doctrines in our accounts of the early history of subjective rights and liberalism.² The rise of possessive rights in the court of conscience will then appear as a unfortunate, because casuistry has something to offer to the history of