Professor Tierney points out the significance of the permissive natural law theory, which is identified as the main stream among rights theories since the 12 th century. On the one hand, the so-called modern natural law theory, one of whose exponents is obviously Thomas Hobbes, insists on the superiority of natural right over natural law. On the other hand, the permissive natural law theory makes both concepts of natural right and natural law combined mutually with each other.
According to Professor Tierney, the latter type of natural law theory should be regarded much more important than the former type of natural law. While the permissive natural law theory has been applied in the course of history, the community and its members have been brought into a kind of association that produces something new in the world. We can see such cases in the constitutionalism of the Conciliar Movement in the 15 th century and also in the ideal of religious freedom in the 17 th century. Both of these grew up within the framework of the permissive natural law theory. This theory is one of the elements that mobilized the community and its people for the development of constitutional government. His analysis of rights, however, never told us how conflicts were resolved among people before canonists in 12th century Europe contrived the rights theories. In pre-modern societies people had appealed to various ways of ordeal.
Adam Smith, a natural law philosopher, worked out the mechanism of the historical development of modern society. He recognized the difference between the judicial procedure of modern society and the ordeal of pre-modern society. Although he sometimes seemed too modern to understand enough about ordeals, Smith never lost sight of the importance of the problem. I think that it is suitable to start from his insight if we are to argue sufficiently for natural law theories.
