See Annabel Brett, Liberty, right and nature: Individual rights in later scholastic thought, Cambridge University Press, 1997. This is an excellent book, but I have disagreements with its treatment of Ockham's Opus nonaginta dierum.
According to Annabel Brett, the old Franciscan position was that the friars had renounced their own will, and the friars’ use of things was assimilated to non-human action (like a horse feeding), since they use things without any act of will. She says that Ockham (though not consistently--"Ockham is trying to juggle the two options", p. 57) abandons this and adopts the Pope’s notion that the friars’ use is a voluntary human act that must be either just or unjust.
Having accepted that the friars’ acts are human and that every human act is morally either good or bad, Ockham must argue that there are good acts that are neither just nor unjust. (This is Dr Brett's interpretation. I would rather say that Ockham must argue that there can be acts that are "just" in the sense that they are morally good, though perhaps not "just" in the sense that they are done by legal right.) One strand of argument focuses on the act, another on the potency for action. As to the act, Ockham argues that there are three senses of justice and that in the third sense an act can be just though not done by legal right. Dr Brett takes this as a defence of Michael’s claim that there are acts that are neither just nor unjust in John’s sense of justice without having to deny that these are human and not animal acts. (Actually Ockham says that Michael's thesis is that one can do licit and just acts without having a right by which one could litigate in court.) A morally good act is one that is “consonant with right reason”. (Elsewhere Ockham explains that moral goodness requires not merely that the act be consonant with right reason, but that it be chosen precisely for being consonant with right reason, but in OND he does not mention this refinement.) The argument, then, is that the friars’ acts of using things can be consonant with right reason, and in that sense (the third sense) just, even if they are not just in the first sense, i.e. even if they are not done with a legal right of using. Dr Brett does not seem to make any objection to this first strand of argument.
As for the potency, i.e. the “licit power of using” that is a right, Dr Brett maintains that Ockham’s argument fails. Use by the positive legal right of using is legal and therefore just. According to Dr Brett, Ockham should acknowledge that use by the natural right of using (e.g. the right to use others’ things in a situation of extreme necessity) is also just. But according to Ockham as Dr Brett interprets him, outside the case of necessity the friars can use others’ things only by a licentia utendi which is not a right, not even a natural right. To provide for such use, Dr Brett suggests that Ockham needs a second sense of “licit power of using” that would not be a right (not even a natural right) and would therefore not be just but only licit. Instead, he maintains that the friars use outside the case of necessity is by the same right that allows anyone to use things in the case of necessity—but this is the natural right, which justifies and does not make merely licit. “Thus Ockham in the end has no clear reply to the pope, for he has failed to isolate a potestas licita which would be a power to perform acts which are licit in the sense of consonant with right reason, but not strictly just”, p. 68.
According to Ockham, every human being by nature has the moral right to use things, and always has it (though not “for always”). Positive human laws establishing ownership impede the exercise of that right, except in two cases: (a) if there remain some unappropriated things, then anyone can use them at any time, and (b) anyone can use another’s thing when it is necessary to preserve life. The positive laws establishing ownership cannot impede action in these two cases, so in these cases the owner's permission is not needed—anyone can use by virtue of the natural right. But in other cases human law blocks use by non-owners, but the owner’s permission can remove that impediment. The permission is not, or is not necessarily, a right; it can be a grace, existing at the owner's pleasure.
Thus it is not true that Ockham needs to define some power other than natural right that would make acts not just but merely licit. It is enough for his position to specify a power that enables a person to do acts that are “just” in the third sense (equivalent to morally licit). That power is the natural right to use.
p. 13- on mendicant poverty: The statements that the friars have renounced all will (e.g. "This is the obedience which annihilates all of a man, keeping nothing of the human to himself", Pecham, p. 13; Thomas Aquinas, p. 14; "the Minorites had argued that the actions of the Franciscans with regard to temporals are not properly human", p. 57; "the Minorite, having surrendered his own proper will must use things without any act of will", p. 59) are pious hyperbole. The friars cannot renounce their humanity, they perform voluntary actions even when they act in obedience, otherwise their life could not be good or meritorious.
p. 20- the equivalence of ius and dominium: From the propositions that dominium is a ius and that someone who has a ius has (in some sense) dominium in that ius it does not follow that dominium and ius are equivalent or synonymous.
p. 31 neo-Augustinianism: "the city is simply the state of the existence of dominia distincta, and the civic power is for the maintenance of that state". Cf. p. 41, where the same view is attributed to Summenhart. The footnotes do not give any support. As far as I know every medieval thinker acknowledged that the civic power has other functions besides the protection of property.
p. 58 Ockham redefines usus
facti: Ockham defines usus facti as
"the act of using an external object" or "every act a person
may
exercise with regard to an external object". In doing so he
does not "isolate
something which is the pure activity in itself" (p. 58), "this
pure
exterior act, neither just nor unjust" (p. 59). The reference
to an
external object does not mean that use is a sequence of
merely
physical acts. Use is the act of a person, not "pure exterior
activity", not an act identical with some act done by an
irrational
entity, but a human action, to be described with some
reference the the
actor's will. The passage referred to p. 59 n. 30, viz. OND
41.65ff, needs to be read in its context. It is
not
intended to define usus
facti.
"Third, they show the same of an act of consuming which is
neither just
nor unjust. For brute animals..." What is "the same"? It
is that
John errs when he says an act of consuming cannot be separated
from
ownership, which is shown by the fact that a horse
consumes oats
without owning them. But this does not assimilate a
friar's act of
eating to that of a horse.
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