Talk to Me Like I’m Stupid : Natural Law Edition

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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327 Responses

  1. Avatar Jaybird says:

    The problem with Natural Law is that, similar to God, we don’t know that It exists.

    Oh, there are hints and hints and hints and the hints are commensurate with what we suspect that Natural Law would actually be like if it existed… but they could also be coincidences as well (because there are hints and hints and hints that they are nothing more than coincidences).

    Natural Law is, in a nutshell, the Thoughts of God that we have access to.

    There were a bunch of people in the past, however, that thought that they had access to God’s Thoughts and, as it turns out, they were mistaken despite their certainty. (Or, as far as we can tell, we’re certain that they were mistaken.) How do we know that we aren’t mistaken now? Well, we don’t. As a matter of fact, we can be fairly sure that we are mistaken now.

    The problem is that there are people out there (Muslims, Catholics, Jews, and pretty much everybody who isn’t Babtist) that are pretty certain that they’re right and they’re more than willing to argue for things that we know to be bad as things that should be readily available to all and things that we know to be goods in and of themselves as things that should be left up to the individual (or worse, banned outright). What does it mean that these folks can’t see the Natural Law that is self-evident to good people like us?

    Well. It means that we’re stuck trying to open the eyes of the blind in the hopes that we can make them see the Truth that is self-evident to us and clear them of their misconceptions and deceptions that they hold in their hearts out of either malice or ignorance.Report

  2. Avatar James K says:

    I share your scepticism. The only;y concept of Natural Law that makes any sense to me is the laws of physics, but that’s a natural law that can’t be broken.Report

  3. Avatar BlaiseP says:

    Natural Law is lazy thinking. So, for that matter, is legal positivism. It is the equivalent of Creation Science applied to jurisprudence, a great bulwark of tautological idiocy we may never transcend as a species.Report

    • Avatar Murali in reply to BlaiseP says:

      Natural Law is lazy thinking. So, for that matter, is legal positivism

      Where have you been in my jurisprudence posts? and you think you can just throw a howler like that?

      What do you think is the legal positivists’ thesis and what is wrong with it?Report

      • Avatar BlaiseP in reply to Murali says:

        Natural Law is a contradiction in terms. He who attempts to legislate morality will have neither good law nor good morality. Law is the guard rail on the side of the highway. Good law impinges least upon individual freedom.

        Freedom, Murali, means I can do and say as I please and nobody can stop me. There ought to be laws to stop me from abusing my neighbours and avoiding paying my taxes. That said, the Libertarians bring freedom to a very sharp edge: government ought to be restrained from tyranny as surely as I am restrained from driving my truck on my neighbour’s lawn and he on mine.

        Legal positivism is an equally specious notion, arising from some pseudo-Confucian hoo-hah. I suppose I ought to provide my clients with the best possible solutions but you will not find any such terms in my contracts. I will provide them with the best solution that time and constraints allow. I always offer to repair any defects should they be discovered. But if the client has modified the software I delivered, and I always check, it’s back to my time and materials rate, with forty hours of analysis minimum to re-engage me.

        It is the law of nature that people will screw with my software: time and again they have done it and time and again I’ve had to fix it. I cannot stop it and remonstrating is useless. But I can punish it and I do.

        Natural Law is pernicious rubbish. Law evolved separately from human beings. If there were any validity to Natural Law, we would have evolved beyond theft and murder but we have not. There are no ideals of justice. There never were. In civil law mankind resorts to the courts with his grievances against his fellow man, where lawyers and judges and juries wrestle with the application of which laws apply to the given situation. In state law, defendants are arraigned with the presumption of innocence, no matter how manifestly guilty they might seem. Were Natural Law any guidance in these things, we should need no courts for all would be as cognizant of the law as migrating birds know to travel to their nesting grounds.

        Though the Declaration of Independence made fiery Locke-ian statements about the right of men to rebel against tyranny, the Constitution emerged in the wake of Shay’s Rebellion, a complete repudiation of the Declaration of Independence, giving the new American government the right to suppress the very sort of rebellion the same men had so proudly justified in the Declaration. Only the addition of the Bill of Rights gave the ordinary citizens any freedom at all.

        No, I will not buy into any part of Natural Law or Legal Positivism. Mankind never does the right thing. He does what he can get away with under the circumstances.Report

        • Avatar Murali in reply to BlaiseP says:

          You see, this is what happens when people start talking about things they have no fishing clue about. If you knew anything about confucius and legal positivism, you would know that even under a casual understanding of confucius, confucius was no legal positivist. (in fact, in many ways Confucius is a classical Natural Law theorist) I’m actually quite short on time for the moment, and I’ll return to this later. Nevertheless, you may find the following 2 entries in the stanford encyclopaedia of philosophy illuminating.

          Natural Law Theory

          Legal PositivismReport

          • Avatar BlaiseP in reply to Murali says:

            A few questions, posed from Deepest Ignorance:

            Could it be that Legal Positivism attempts to say an arbitrary law is wrong or right based on the prevailing whim of the moment? That is my conclusion.

            Could Natural Law just be a recycling of the Platonists for modern times, a hoary old self-referential bill of goods based on short-circuited reasoning and childish fears of anarchy?Report

            • Avatar Murali in reply to BlaiseP says:

              Could it be that Legal Positivism attempts to say an arbitrary law is wrong or right based on the prevailing whim of the moment? That is my conclusion.

              No, legal positivism says that whether some social norm is right or wrong has no necessary bearing on whether it is the law or not.

              Legal Naturalists deny this and say that if some social rule is unjust, it necessarily does not count as the law.

              The legal postivist may concede that in some jurisdictions, finding what the law says may involve finding what is right or wrong, just or unjust. However, the legal positivist says that this need not be the case. The legal positivist also says nothing about whether a law should be followed in either case.

              So, for the Natural lawyer, there is no such thing as an unjust law. Though Confucius doesnt really say much about the law specifically, his doctrine of the rectification of names is such that an unjust ruler is not really a ruler, but a mere gangster. So whereas people may owe duties to their lawful rulers, they don’t owe anything to mere gangsters. For the natural lawyer, there is no such thing as an unjust law. Something unjust simply cannot be called a law.

              As a legal positivist, I think that natural law theory is wrong. In fact, my whole series of posts on jurisprudence is about what the law is and how this bears on the lissue of legal positivism vs natural law.Report

  4. Avatar stuhlmann says:

    I’ll defer to Robert Heinlein and Starship Troopers:

    “Ah yes, [life, liberty and the pursuit of happiness]… Life? What ‘right’ to life has a man who is drowning in the Pacific? The ocean will not hearken to his cries. What ‘right’ to life has a man who must die to save his children? If he chooses to save his own life, does he do so as a matter of ‘right’? If two men are starving and cannibalism is the only alternative to death, which man’s right is ‘unalienable’? And is it ‘right’? As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is least likely to be cheap and is never free of cost. The third ‘right’?—the ‘pursuit of happiness’? It is indeed unalienable but it is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore. Cast me into a dungeon, burn me at the stake, crown me king of kings, I can ‘pursue happiness’ as long as my brain lives—but neither gods nor saints, wise men nor subtle drugs, can ensure that I will catch it.”Report

  5. Avatar Kyle Cupp says:

    The first thing to note is that people mean different things by Natural Law. Often it is little more than a substitute term for “what I believe God says,” but there is a sense of Natural Law to which even skeptical old me gives assent. Its foundational principle is this: “good is to be done, and evil avoided.” To do good is to act in accordance with our whole human nature; whereas to do evil is act in variance with it. Why? Because in acting in accordance with our nature, we act towards our fulfillment. To act against it is to act against our fulfillment. So, for example, through reason we can discern that we are rational beings, beings capable of reason. Reason also tells us that the rational aspect of our nature is higher than those aspects of our nature that we share with other animals. We therefore conclude that, as a general rule, human beings ought to act reasonably and not simply in accordance with what our appetites and passions dictate. For example, we expect our children, when it’s twenty minutes till dinner and they’re moaning about being hungry, to exercise patience and wait quietly for dinner to be served.

    An aside: “human nature” is not reducible to our biological ends. I reject the argument that, say, the biological end of human sexuality–procreation–constitutes an absolute norm for how one ought to act sexually. For starters, the whole of human nature has to be taken into consideration when exercising natural law based reasoning. Furthermore, the argument doesn’t work.

    I have more to say, but “being a good parent” means, in light of natural law, that I see to the education of my children, and as the boy’s school day starts in twenty minutes, I need to get him out the door.

    Hope this helped.Report

    • Avatar Kyle Cupp in reply to Kyle Cupp says:

      Okay. Back now. If you want what I’d say is a good example of sound natural law thinking, consider The Lord of the Rings. Tolkien’s moral vision is very much informed by Natural Law. The use of the One Ring corrupts the person who uses it, twisting his or her nature. Take Gollum. He used to be a hobbit, but centuries of keeping the Ring have left him both physical and, more to the point, morally twisted. He’s at war with himself and his better nature. He is not what a hobbit ought to be. His moral reasoning is weakened. So is his will. Evil has made it harder for him to do the right thing and to return to being what a hobbit ought to be. The Nazgul also illustrate the association of evil with the difference between what one currently is an what one ought to be based on the fullness of what one is capable of becoming in the best sense. They are no longer men, but shades of their former selves. They are utterly slaves to Sauron. They have no will of their own. They have become something much lower and less than what they ought to be naturally, and we recognize this corruption as itself a bad thing.

      For an explicit natural law moral argument, consider these two. 1) When Eomer asks Aragorn how a one ought to judge in these days of confusion and uncertainty, Aragorn says, as ever he has judged. Good and evil have not changed from yesteryear, nor are they one thing among elves and another among elves and dwarves. We have to discern them as we always have. Aragorn is appealing to a moral law that transcends time and peoples, a law that can be discerned through reason. 2) Faramir refuses to use to Ring, no matter what the benefit, because he knows that its use would diminish who and what he is. His reasoning extends beyond the harm the Ring would do to others while under his possession; he understands that the Ring would possess him. He knows he would suffer a fate worse that death: he would cease to be a man, he would cease to be in accord with what it means to be and flourish as a human (human nature). He sees this inevitable transformation as itself evil.

      Returning to Gollum, we see this horrible fate all too well. Even if we put aside any harm Gollum could cause to others, the mere fact that he is Gollum and not Smeagel strikes us as wrong. He ought to be a hobbit, not whatever the Ring has turned him into, even if he never met another soul in his pitiful life. Frodo sees this, and even wants to give him the change to once again be a hobbit in the best sense, even though that risks Gollum’s betrayal of him and Sam.

      In Frodo and Sam, and by the end also in Merry and Pippin, we see what being a hobbit really should mean. Frodo and company reveal to the shire the full meaning of being a hobbit–of hobbit nature. And we see this as good, as well we should.Report

      • Avatar mark boggs in reply to Kyle Cupp says:

        I guess I struggle with the word “ought”. As though there is only one way a hobbit “ought” to be. Or that a human should be. Usually this “ought” is defined by another hobbit or human. And often defined in accordance to what the definer deems to be our nature. But then, as you have done with the hobbit example, the definer gets to say things that exclude behaviors that they deem to be non-human like. Or they get to use the idea that, whether or not this or that is something that occurs in our species and others naturally, it is to be avoided because it diminishes us and actually goes against what our nature “ought” to be.

        I realize that I’ve mangled that whole thing horribly and ask you to disregard my utterances if they, as I fear, make no sense at all.Report

        • Avatar Kyle Cupp in reply to mark boggs says:

          According to natural law theory, one ought to do the good, and the good is that which conforms with the ends to which nature (human, hobbit, etc.) is ordered. Determining those ends and subsequently what constitutes the good is the work of natural law ethics–these ends have to be approached from the standpoint of human nature as a whole. The relativistic “defining” that you mention is certainly a temptation for natural law theorists and those who vaguely appeal to natural law. You see this sort thing when someone isolates some seemingly natural end and assumes that end is automatically normative. “The sex organs are made for procreation; therefore, they ought only be used in conformity with this end.” This is bad thinking, and bad natural law theorizing. It assumes that the biological purpose of the sex organs constitutes a moral norm, but that doesn’t follow. At all. To make a natural law argument against, say, masturbation, would necessitate the consideration of human nature as a whole. Isolating the biological purpose of the organs doesn’t cut it. And conceivably none of these arguments would be sound. I’m very dubious of them, myself. In fact, I’ve seen natural law type arguments in support of sexual acts that do not conform with the sexual organ’s biological purpose. The argument that human beings are rational beings who can and should have control over their sexuality and sexual decisions, for example. You’ll notice this argument at least considers human nature holistically: it takes into consideration the human person’s rationality and appetites. Whether the argument works is another matter.

          But I digress. Anyhow, to avoid the problem of subjectively defining the “ought,” the natural law theorists has to progress, step by step, from what can be known in general about human nature to specific concrete cases. You can’t just say, “I have an intellect; therefore, I ought to develop it.” You have to do the work of getting from the first proposition to the second. And that’s the work of natural law ethics.Report

      • Avatar Tod Kelly in reply to Kyle Cupp says:

        @Kyle: “When Eomer asks Aragorn how a one ought to judge in these days of confusion and uncertainty, Aragorn says, as ever he has judged. Good and evil have not changed from yesteryear, nor are they one thing among elves and another among elves and dwarves. We have to discern them as we always have. Aragorn is appealing to a moral law that transcends time and peoples, a law that can be discerned through reason. ”

        A question, then. Over the past 15 years or so I have seen people debate the morality of the founding fathers. When looking at issues of slavery, women’s rights, religious freedoms, etc., the argument from some is that because the founders were OK (or OK enough) with those transgressions that they should be viewed as either evil, very immoral or at the very least severely morally diminished. The counter argument is that you cannot judge someone in 1776 too harshly for not having 21st century moral principles.

        But here’s the thing: I would say that were I to divide up those I have known that argue for Natural Law on both sides of that argument, they would almost universally side with the founders being products of their time, and that we should not judge them or their actions evil, and should certainly not discount their words and achievements for approving of something that was commonly approved of back in the day.

        How do these things square? Again, am I missing something?Report

        • Avatar mark boggs in reply to Tod Kelly says:

          You mean the ones who argue that natural law dictates what things can be extrapolated or not extrapolated into rights today are the same ones who argue that the Founders be given a pass because of the time and culture in which they lived? As though the immutability of natural law dictates no SSM today, but we can excuse the Founders their ignorance based upon the cultural trends of 1776?Report

        • Avatar Kyle Cupp in reply to Tod Kelly says:

          It helps to distinguish between the immorality of a transgression and the culpability of those who engage in it or give it support. The founding fathers were wrong to approve of and/or practice slavery, for example, but I would say their culpability was somewhat diminished due to their ignorance (in part, of the natural law, actually) and the faulty, morally-screwed up thinking of the day. The evil of what they supported is no less evil for that, but their sin, shall we say, was lessened if they were genuinely ignorant of the humanity of slaves and/or the rights they were due as human beings.Report

          • Avatar Tod Kelly in reply to Kyle Cupp says:

            OK. But it seems like you can choose to make this argument or not based on your own personal opinions about an public policy issue. For example, those more likely to defend the Founders for the sins described above are (in my experience) more likely to condemn SSM on the argument that history “proves” the NL, and therefore a moral judgment can and should be made.

            Again from the OP, I recognize how NL is a framework one can use, but I am still not seeing how it isn’t something that one simply backs into with one’s pre-existing beliefs. And if that is the case, I am unable to discern it’s use.

            Again, I know I am missing something. What is it I’m missing?Report

            • Avatar Kyle Cupp in reply to Tod Kelly says:

              Well, sure, you can, and people do. It’s common for us to have an opinion and only try to rationalize it once it’s challenged. It’s easy to claim something is unnatural, especially when it’s atypical, so appeals to “natural law” get made.

              Like any ethics worth its salt, natural law theory is useful for explaining and understanding why one ought to act in one way and not in another. It’s appeal is to human nature, an objective standard. Granted, we arrive at the meaning of human nature by way of interpretation, but this is true of the meaning of anything and everything. No moral or ethical language can be entirely objective, but, it helps to get as much objectivity as one can. Natural law theory is done well when the theorist starts from what he knows and moves only to what she can logically conclude. This process meanings that the theorist is willing to go where the logic leads, but also willing to question her premises and interpretations.

              For the record, I don’t think there’s a definitive, sound natural law argument against homosexuality or same-sex marriage. I’ve seen it tried, but usually the arguments fall prey to the is-ought problem or assume what they set out to prove. This may be why you’re so unimpressed by natural law thinking. It’s been put to fallacious use.Report

          • Avatar Jaybird in reply to Kyle Cupp says:

            Can we do that for other cultures today? I mean, like the people from (place) that still believe (thing that we know isn’t true) or worse, the people from (region) who don’t believe (thing that we know is true)?

            How genuinely ignorant of the rights of (sub-group) can they still be in 2012?

            It’s not like we haven’t sent an army there and shot enough of them.Report

            • Avatar Kyle Cupp in reply to Jaybird says:

              A further distinction would serve us well here: there are two types of ignorance: the ignorance for which I am culpable and the ignorance that I have through no fault of my own. If I advocate or support an infringement of some group’s rights out of ignorance, my culpability depends in part on whether I should know better. Have I neglected to learn about this group? Am I rushing to judgment? Have I intentionally remained ignorance? If so, then my ignorance is of little to no excuse.Report

              • Avatar Jaybird in reply to Kyle Cupp says:

                Let’s say that there’s a group of folks in “The South” who don’t believe gays ought to be allowed to marry. What culpability do they have? What responsibility do we, as enlightened people, have to turn them around?

                Let’s say that there’s a group of folks in “That Other Country” who don’t believe that girls ought to be allowed to read. What culpability do they have? What responsibility do we, as enlightened people, have to turn them around?Report

              • Avatar Kyle Cupp in reply to Jaybird says:

                These questions don’t have simple answers. You’d have to assess culpability on a case by case basis. Responsibility would depend upon a lot of different factors.Report

              • Avatar Will H. in reply to Kyle Cupp says:

                This reminds me of an interesting evolution of our own law.
                In an action under 42 USC 1983 (violation of civil rights under color of law), the procedure is to name the city or county, the chief of police/board of police commissioners or sheriff (acting in official capacity), and an individual police officer or deputy (individually and acting in their official capacity). [Think of the Rodney King beating.]
                The way this came to be was through the contortions of the courts to find no wrong-doing on the part of police officers.
                Now, attorneys that take these cases typically do so on a contingency basis; and the attorneys fees (which are recoverable under 42 USC 1988) typically run into the $200k – $250k range (I recently saw one where there was an award of $216,500 in attorneys fees). And the cases will run on for 3 or 4 years (before any appeals). Firms typically do not like to give up that kind of time and money. So they adjust.

                I’m not sure about the order of events here, but:
                The courts decided that acts of omission were not subject to suit under 1983. It has to be a positive act.
                The courts decided that the specific pleading requirement prohibited pervasive misconduct, and that a particular officer must be named in suit.
                There’s one other important step in there that slips my mind.

                So, the three entities described above are held liable for acts of omission.
                City/County is responsible for the chief of police/board of commissioners/sheriff, who is/are in turn responsible for hiring the officer/deputy, and for setting the policies, procedures, practice and custom of the department.
                Which is to say, the officer/deputy is held liable for any deficiencies in training which were set by policy. And note that the officer/deputy is also held in liability individually as well as in official capacity.
                When really, these people have no control over what is taught to them at the police academy.

                It’s natural law.
                Sh!t rolls downhill.
                And its corollary:
                But it can be pumped uphill.Report

  6. Avatar Roger says:

    I too dismiss any reference to natural law as a lazy argument. I will add that I recently came across this quote from Henry Hazlitt in his book Foundations of Morality.

    “The term Natural Rights, like the term Natural Law, is in some respects unfortunate. It has helped to perpetuate a mystique which regards such rights as having existed since the beginning of time…Yet though the term Natural Rights easily lends itself to misinterpretation, the concept is indispensable; and it will do no harm to keep the term as long as we clearly understand it to mean ideal rights, the legal rights that every man ought to enjoy.”

    Seems like the term brings in too much baggage to me.Report

  7. Avatar Burt Likko says:

    Natural law incorporates the concepts that the positive law is subject to and derives from morality. That which is morally good is the object of the law. That which promotes evil (the opposite of the good) is not law at all.

    The idea that what is good and what is evil is malleable with changing historical circumstances is, of course, deeply disquieting to natural law advocates who would like to point to something unchanging and true about their philosophical vision of the law. And if you reject the notion that some nebulous (or nouminous, if you prefer) thing in some state of existence called “the good” then natural law becomes a whole lot harder to buy in to.Report

    • Avatar Will H. in reply to Burt Likko says:

      That’s real nice.
      And everyone has a pretty good idea of what ‘Justice’ is.
      But there are some concepts of Justice out there that don’t look much like justice.
      There’s the idea that justice does not rely on individual outcomes, but on the aggregate.
      There’s the idea that the expectation of justice in a society is more important than any manner of execution of just acts.

      Which could be something of a disquieting thought if one happens to be walking into a place with “Halls of Justice” carved into the entryway.

      I don’t think those type of ideas were what they had in mind when DC was looking for a name for the JLA.Report

  8. Avatar Jason Kuznicki says:

    “naturally,” which I take to mean that they are absolute, self-evident and exist independent of people and society.

    You are wrong on all three of these assumptions, so it’s not surprising that the concept makes no sense to you. (You did say I should talk to you like you were stupid.)

    Working backwards:

    First, the “naturalness” of natural law is entirely dependent on people and society. The claim that some rights or obligations are “natural” is ultimately a claim about human nature, not about the nature of any other thing. Specifically, it’s a claim about mankind as a social being, so we definitely must incorporate society into our considerations, too.

    Second, natural law is not self-evident. Were it so, Thomas Aquinas would not be thought a great intellect. It takes intellect to discern natural law, or so say its proponents. (I am — I think — among them, but I am not a theist, which makes me an oddity, and I admit that I may be wrong about my self-classification.)

    Third, natural law is not absolute in at least two senses.

    First, the type of law we are talking about is a moral law, not a physical one. In this sense, the law of gravity is absolute, in that it is followed with or without volition. But the rules for human conduct work very differently. If you want it badly enough, you will disobey them.

    The fact that humans have often disobeyed every law they have set up (or claimed to have discerned) for themselves is interesting, but in my view it is not a disproof of natural law. It might be that some facts about our nature demand some rules for our actions, provided we want to live the life that is proper to us. And some people just don’t want to live that life.

    Second, many forms of natural law, including the Thomistic natural law and my own views on the subject, make allowances for breaking many of their own general principles from time to time. Claims of the natural law type tend to be hierarchical — there are some principles that override others. This means that very little in the system is “absolute” in a second sense, namely that a given precept must be followed without exception. In many natural law systems, there is a great emphasis placed on balance or harmony, one springing ultimately from Aristotle’s doctrine of the golden mean.Report

    • Thank you, Jason. This was excellent.Report

    • Avatar Roger in reply to Jason Kuznicki says:

      Jason,

      “First, the “naturalness” of natural law is entirely dependent on people and society. The claim that some rights or obligations are “natural” is ultimately a claim about human nature, not about the nature of any other thing. Specifically, it’s a claim about mankind as a social being, so we definitely must incorporate society into our considerations, too.”

      It seems many reasonable philosophies consider human nature in the context of society, indeed I have trouble accepting one that doesn’t. What separates natural law from pragmatism, or rule utilitarianism or other systems? Or is natural law a higher order umbrella classification?Report

      • Avatar Jason Kuznicki in reply to Roger says:

        I would say two things distinguish natural law from the other traditions you mention.

        First, pragmatism and rule utilitarianism don’t claim to derive their oughts predominantly from claims about what people are. A rule utilitarian might very well prescribe rule utilitarianism on Mars, to martians. A natural law thinker might come up with formulas that look a lot like rule utilitarianism, but he would insist that he’d done so in reference to particular features of human nature. Confronted by martians, he would begin by asking questions about martian nature.

        Second, it’s a lot to do with intellectual lineage. Beginning with Bentham, utilitarians heaped so much scorn on natural law claims that I doubt the breach is ever going to be mended. Besides, at the end of the day, I’m more or less an Aristotelian: Virtue ethics. Golden mean. Dialectical reasoning. Relatively strong claims about human flourishing and teleology, without which I find it hard to describe thoughtfully considered action at all. This is where I feel at home philosophically.Report

        • Avatar Murali in reply to Jason Kuznicki says:

          Relatively strong claims about human flourishing and teleology

          It is especially these latter features which I find most objectionable about Aristotelianism. As a general approach, I tend to prefer starting out with extremely modest claims and work onward from there. After all, if I can say all I need to say with much more minimal and modest claims, then my conclusions are stronger and more robust than yours because that means that my premises stand up to greater sceptical scrutiny than yours.Report

    • Avatar Will H. in reply to Jason Kuznicki says:

      It seems to me the greatest of conceit for man to refer to himself as a rational being, and especially so in relation to society.Report

  9. Avatar J.L. Wall says:

    Natural law isn’t, by necessity, an appeal to God’s word. In fact, there’s a strong case to be made that it OUGHTN’T, by its own terms, be an appeal to God’s word. This is because it is tied to an understanding and examination of The Good Life. The Natural Law is that rule or set of rules which govern and determine the proper order/hierarchy of human wants and needs. It directs one toward the Good Life by helping to determine the nature of human being and, of course, that Good Life toward which one ought to strive. Or, to quote Strauss’ summary (forgive me): “The good life simply, is the life in which the requirements of man’s natural inclinations are fulfilled in the proper order to the highest possible degree . . . The good life is the perfection of man’s nature. It is the life according to nature. One may therefore call the rules circumscribing the general character of the good life ‘the natural law.'”

    The idea of natural RIGHT is, in terms of philosophic tradition (and, in many/most cases, argument), grounded in A concept of natural LAW. Today’s appeal to the natural LAW as against (natural/human/political) RIGHT is an argument, as Tod notes in his original post, that the two aren’t in accord, and that LAW trumps RIGHT. The reason this argument seems circumscribed and confuses is, of course, that it’s a short-hand argument for a rejection of the PREMISES of one’s interlocutor.

    But to return to the question of whether it’s a case of “God says so” (or, I suppose, whether an appeal to natural law OUGHT to be that statement and nothing else) — Strauss identifies two “types” of natural right/law arguments, Classic and Modern; I’d break the Thomistic tradition off from “Classic” (where he puts it) and grant it a category of its own. Leaving us with: Classic (Plato, Aristotle, Epicureans, Stoics), “Thomistic” (Aquinas and the general re-discovery of Aristotle by religious thinkers, e.g., Maimonides), and Modern. Various thinkers within these traditions come to various conclusions about natural RIGHT, but begin, within categories, from roughly comparable (at times, similar) understandings of natural LAW. Natural law, it should be said, is not itself a premise: it requires, however, beginning from a premise.

    There is, of course, a further distinction to be made — that between natural and political right. The former, of course, depends on the above and more. The latter, however, depends on the particular (historical) situation of the society. This is not a modern/postmodern innovation; a variety of possible means to a single ideal was present in the Classics, as well. What IS new is the question of whether the variety of means point toward a given ideal at all. A given law might be perfectly acceptable — even necessary — in terms of political right while failing to move in accord with, or toward, the Good as understood by natural law. And this, of course, would beg the question of whether a given society’s political rights and their foundation, whether in text or tradition, are sufficient in themselves, or whether they ought to be oriented toward an even more foundational natural law and/or Good arrived-at-by-reason and be themselves understood as NATURAL rather than POLITICAL.

    That’s all to say, it all goes back to whether the two people arguing accept the premises from which each begins.

    (Forgive the excessive capitalization; I don’t know what’s gotten into me.)Report

  10. Avatar Robert Greer says:

    Natural law, as the concept is used by legal philosophers, means nothing more or less than this: Whether something is properly considered a law can be determined by simple reference to its congruence with morality as deduced from human nature. So you’re right to note that when “natural law” is invoked by people who are unwilling to discuss ethicality beyond the confines of their religious belief system (and it often is), it’s tantamount to argument from religious authority. But in natural law’s more interesting formulations, this morality is a debatable proposition, meaning that arguments from natural law are quickly converted into a more fruitful discussion about what is and is not moral, or human nature. In this light, even many secular legal theories are natural law theories. Law and Economics, for example, says laws will lead to better outcomes if they harmonize with the patterns of human behavior as posited by the field of economics.

    Natural law is distinguished from its main theorized alternative, legal positivism, which says that concepts and proclamations are legal because of their sources (e.g., an executive or magistrate). The problem with both of these approaches is that neither is properly lexicographical: If we want to understand what “legality” is, we should empirically investigate the usage of the term, because usage (not metaphysical debate) is what actually creates meaning. Whether a proclamation has legal force depends largely on its perceived legitimacy. This in turn hinges on the putative law’s accepted morality (as the natural law theorists would be quick to point out), but also on its source (positivism). But there’s a darker element that is articulated by neither of the main jurisprudences: whether or not something is perceived to have legal stature depends quite strongly on whether adherence to it can be ensured by the force of the state. Jurisprudential analyses that make no reference to physical power and other compulsion techniques are therefore bound to be incomplete.Report

    • Avatar greginak in reply to Robert Greer says:

      Invoking human nature is just as much a problem as the phrase natural law. A person can project or define whatever they want based on human nature.Report

      • Avatar Kyle Cupp in reply to greginak says:

        This is true of any ethical language, no?Report

      • Avatar Mike Schilling in reply to greginak says:

        A person can project or define whatever they want based on human nature.

        Sure, that’s what people do.Report

      • Avatar Robert Greer in reply to greginak says:

        Yes, hence Tod’s frustration at people who invoke “natural law” but are unwilling to have a debate over human nature. You could say the same thing about a lot of libertarians as well: Too often, they’re unwilling to consider accounts of human behavior that don’t fit neatly into a shallow Benthamite paradigm.Report

        • Avatar Jaybird in reply to Robert Greer says:

          It’s the statists who dug (and yet dig) the panopticon, Greer.

          Mock the Libertarians for being overly Lockean and not understanding that society pays the piper and so therefore society gets to call the tune.Report

          • Avatar Robert Greer in reply to Jaybird says:

            Of course it’s the statists who dig the panopticon. Your sentence is essentially a tautology. Just because libertarians have a favorite epithet doesn’t mean that the word can never apply to them. Libertarians are statists along perhaps the most important of dimensions: They want to give the state the authority to decide whose consumption (property) is worth violent defense.Report

            • Avatar Jaybird in reply to Robert Greer says:

              In the same way that pacifism is objectively pro-fascist.Report

              • Avatar North in reply to Robert Greer says:

                Pacifism is pro-fascist, I believe the arguement goes, because they would sit back and permit fascists to do what they would.Report

              • Avatar Robert Greer in reply to North says:

                I’m familiar with the Orwellian dictum, I just don’t understand how Jaybird was intending it to relate to our discussion.

                Anyway, I think ol’ George was wrong. Pacifism is not synonymous with nihilism, and there are ways to fight tyrannical force that don’t involve copying its methods.Report

              • Avatar Jaybird in reply to Robert Greer says:

                To sum up: “I know how it’s false (if not downright inflammatory) when people say it about people with my views, I just don’t understand how it’s inflammatory (or even false) when people say it about people with your views”?Report

              • Avatar Mike Schilling in reply to Robert Greer says:

                Well, we were talking about human nature.Report

              • Avatar Jaybird in reply to Robert Greer says:

                The non-aggression principle is one of the underlying tenets of Libertarianism. If you’re talking about how “They want to give the state the authority to decide whose consumption (property) is worth violent defense”, you have to put that into the context of the non-aggression principle.

                If you’re unwilling to do that, I’m sure you understand the argument that pacifists are pro-fascist. (Objectively.)Report

              • Avatar Robert Greer in reply to Jaybird says:

                This kind of argument is exactly why I can’t feel sympathetic when libertarians complain about being limited with those dogmatic Randroids. You’re using the exact arguments they make about the “initiation of force,” which falls to the same elementary criticism. Both you and the Objectivists are uninterested in historical aggressions, and patly assume that inequality is a can only come from either individual merit or government meddling. But a lot of good old-fashioned aggression went into the current distribution of capital, which if your worldview is to be consistent, must be rectified somehow. But libertarians have little to no interest in this endeavor.Report

              • Avatar Jaybird in reply to Robert Greer says:

                Best to wave them away when discussing such with them. Saves time for everyone involved.Report

              • I’m only dismissive because I’ve had this discussion about forty times and it’s never gone anywhere, so I’ve become cynical. But I also don’t see how my post precludes an attempt at rebuttal on your part.Report

              • Avatar DensityDuck in reply to Robert Greer says:

                Dude, if you’re going to insist that government recognizance of property rights is a “regulation”, then it’s not surprising that your discussions “go nowhere”.Report

              • Avatar Robert Greer in reply to Jaybird says:

                Really, I want to know how all the libertarian objections to the state in the regulatory sphere (which I largely share) suddenly fall away when the state decides who gets to keep the stuff they acquired and who goes to the stocks for thievery.Report

              • Avatar DensityDuck in reply to Robert Greer says:

                Because enforcement of property rights does not represent regulation.

                “You go to jail if you steal” is different from “we want to make stealing impossible and therefore all persons are required to maintain a fifty-foot minimum separation from one another”.Report

              • Give me one solid reason to think that what you just said is more than a naturalization of the state’s coercion. “That’s just the natural order!!!” Yeah, sure.Report

              • Avatar DensityDuck in reply to Robert Greer says:

                Because people who talk about “government regulation” do not define “regulation” as including “the fundamental things that differentiate society from wild-beast anarchy”. I’m aware that I’m skating close to a No True Scot here, but words do mean things.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                DensityDuck, I’m struck at how closely your argument hews to the protestations of gay-marriage opponents. You both claim that your linguistic insight is the last bulwark between a functioning society and brutish chaos. You realize you’re not the first person to protest that “Words MEAN things,” right?Report

              • Avatar Jaybird in reply to Robert Greer says:

                Now that we’ve compared Libertarians to the anti-gay marriage folks, do you think we could compare them to drug warriors? Thanks.Report

              • DensityDuck, it’s generally accepted that markets are a kind of regulation: it’s a choice the government makes to achieve a certain outcome. Even Hayek spoke of “regulation by the price mechanism.” You can either keep your pre-Wittgensteinian, “That’s what words MEAN!” view of linguistics, or you can claim that markets aren’t a kind of regulation. You can’t have it both ways.

                Jaybird, I’ll be happy to oblige: Both drug warriors and libertarians are largely apathetic that their favored policies disproportionately affect the historically disadvantaged, and bristle at and largely ignore people who point this out.Report

              • Avatar Robert in reply to Robert Greer says:

                DensityDuck, it’s generally accepted that markets are a kind of regulation: it’s a choice the government makes to achieve a certain outcome. Even Hayek spoke of “regulation by the price mechanism.” You can either keep your pre-Wittgensteinian, “That’s what words MEAN!” view of linguistics, or you can claim that markets aren’t a kind of regulation. You can’t have it both ways.

                Jaybird, I’ll be happy to oblige: Both drug warriors and libertarians are largely apathetic that their favored policies disproportionately affect the historically disadvantaged, and bristle at and largely ignore people who point this out.Report

              • Avatar Jaybird in reply to Robert Greer says:

                Both drug warriors and libertarians are largely apathetic that their favored policies disproportionately affect the historically disadvantaged, and bristle at and largely ignore people who point this out.

                So they need to be more utilitarian, do you think?Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,

                I am not apathetic that libertarian solutions primarily benefit the disadvantaged. This is a critical feature.

                Property conventions, liberty and non coercion have done more for the masses than every other philosophy combined multiplied by a thousand.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                Jaybird: Utilitarianism can go a lot of different ways. There are utilitarian socialists, and utilitarian right-libertarians. If I called for “more utilitarianism,” that wouldn’t really get us anywhere.

                Roger, I’m aware of your religious beliefs, but if you’re to be an effective proselytizer, you’ll have to provide evidence that the claims of your sect are true. Doubting Thomas, I know.Report

              • Avatar Jaybird in reply to Robert Greer says:

                Most Libertarians I know are either Virtue Ethicists or Deontologists.

                When they resort to Utilitarian arguments (of whatever flavor), it usually reads awkwardly. A “you people are supposed to like this stuff” argument.Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,

                I can provide 7 billion examples.

                Humans have lived for lifespans of 30 to 40 years on the equivalent of a dollar or two in standard of living for over ten thousand years. With the advent of free markets and free inquiry ( science) we’ve doubled our lifespan and increased per capita prosperity ten to a hundred fold ( depending upon when and to what degree various societies adopted the liberal paradigm) .

                Libertarianism is about free social cooperation and competition aimed at the flourishing of humanity.

                I couldn’t give a damn about property rights as some absolute, natural right. If property rights led to disastrous outcomes, I would reject them. I believe in life, not rights.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                The problem with deontology — and virtue ethics, to the extent that it doesn’t reference contingent facts — is that it’s not so much “argument” as it is “assertion dressed up in formal deductive argument and smuggled in by selective definition or equivocation.” Who are your favored philosophers of logic?Report

              • Avatar Robert Greer in reply to Robert Greer says:

                Roger, correlation /= causation. I can just as easily link up extended human lifespans to the advent of Marxist thought (I bet the correlation would be stronger, in fact) — but that would obviously be silly.

                Besides, your methodology is questionable: GDP (or whatever other measure of acquisitiveness you’re using) is a notoriously poor indicator of human flourishing. Diabetes and heart disease are essentially absent from pre-capitalist societies; depression and anxiety are rare. The picture is more complicated than you let on.Report

              • Avatar Jaybird in reply to Robert Greer says:

                is that it’s not so much “argument” as it is “assertion dressed up in formal deductive argument and smuggled in by selective definition or equivocation.”

                Unlike utilitarianism? Which, of course, has “contingent facts” on its side?

                See that scale? See that thumb?Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jaybird,
                When [libertarians’ resort to Utilitarian arguments (of whatever flavor), it usually reads awkwardly. A “you people are supposed to like this stuff” argument.

                Honestly, I don’t understand that at all. I came to libertarianism via utilitarianism. A subjective value utilitarianism, to be precise. Because however badly any of us judge our own interest, it’s unlikely that anyone else can judge it better for us, so the best thing to do is to organize things in a way that allows each to pursue their own goals with as little interference as possible. Perhaps that reads awkwardly to you. It certainly does not to me.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                Jaybird, I agree that unsophisticated utilitarianism is problematic because even putatively “contingent facts” are theory-laden. I promise I’m not here to carry water for utilitarianism, and I only brought it up because I think deontology is conversationally problematic because people either don’t agree to the same premises or because dubious assumptions get smuggled into them. It’s the same problem Tod had with the proponents of “natural law” theorists. I’m just trying to draw you libertarians out of the shell of your rigid axioms. But apparently this has been a worthless endeavor.Report

              • Avatar Jaybird in reply to Robert Greer says:

                Because however badly any of us judge our own interest, it’s unlikely that anyone else can judge it better for us, so the best thing to do is to organize things in a way that allows each to pursue their own goals with as little interference as possible.

                That always seems to put the cart before the horse to me. If I do not have the right to make decisions on your behalf (and I don’t), I don’t see where you get the right to make decisions on my behalf… unless it involves the crowd behind you. The outcome doesn’t enter into it.Report

              • Avatar James Hanley in reply to Robert Greer says:

                I can just as easily link up extended human lifespans to the advent of Marxist thought (I bet the correlation would be stronger, in fact)

                Robert, I think there’s some important gaps in your education. The USSR killed up to 62 million of its own citizens. The PRC killed between 70 and 100 million of its own citizens. The Khmer Rouge wiped out roughly 1/3 of Cambodia’s population in about 3 years. The correlation between Marxism and human flourishing and extended lifespans is strong, but negative. It’s not Marx per se, but that Marxism has essentially always been associated with totalitarianism, and totalitarianism is a killer. Capitalism has been associated with democracies, and democracies tend not to kill their citizens in large numbers.

                See R.J. Rummel for more information.

                Diabetes and heart disease are essentially absent from pre-capitalist societies; depression and anxiety are rare.

                Yes, but violent death was even more common. Despite our belief that we have a high crime rate today, anthropologists are now figuring out that death by violence has declined throughout history, from pre-agricultural times to the industrial era.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                James, I hope you at least suspected that I was aware of all those things.Report

              • Avatar James Hanley in reply to Robert Greer says:

                That always seems backwards to me. If I do not have the right to make decisions on your behalf (and I don’t), I don’t see where you get the right to make decisions on my behalf… unless it involves the crowd behind you. The outcome doesn’t enter into it.

                I don’t understand that as a response. Sorry if I’m being dense. Please allow me to try to clarify my perspective.

                From my perspective, I’d cut out the word “right,” and say, “I can’t make better decisions on your behalf than you can, and you can’t make better decisions on my behalf than I can,” so let’s not do it; let’s not try to tell each other what to do, and let’s not try to pass social rules that tell each other what to do. The logical exception comes in saying, “No, Jaybird, you may not knock James on the head and take his wallet, because you’re effectively making a decision for him against his will–if he thought being knocked on the head and robbed would increase his utility, he’d ask you to do it for him.”Report

              • Avatar Jaybird in reply to Robert Greer says:

                I’m just trying to draw you libertarians out of the shell of your rigid axioms. But apparently this has been a worthless endeavor.

                You utilitarians keep judging endeavors by what you think you get out of them.

                You should see them as goods in and of themselves.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                I don’t consider myself a utilitarian, as I don’t think there’s ultimately a meaningful distinction between it and its supposed alternatives.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Robert,

                No, I didn’t. Because I don’t see how you could claim Marxism is better correlated with human longevity than capitalism if you did, unless you were comparing a negative correlation to a positive one.

                It’s worth pointing out that even as Marx was writing his combined paean to and screed against capitalism, life expectancy was increasing substantially in Great Britain. I’m expect you do know that in later years he was forced to try to deal with the evidence of increasing wealth of the working class that directly rebutted his prior claims.

                (Frankly, I think it’s time we all quit pretending Marx was either a good economist or a good philosopher–he was a good polemicist, perhaps, but nothing more.)Report

              • Avatar Jaybird in reply to Robert Greer says:

                I can’t make better decisions on your behalf than you can, and you can’t make better decisions on my behalf than I can

                Well, then, let’s try this.

                Let’s say, for the sake of argument, that I could make better decisions on your behalf than you could. For example: You eat bad food too much. You drink too much. You smoke too much. You don’t exercise enough. You don’t call your loved ones enough. You don’t give enough to charity. You spend too much time trying to be entertained.

                I’m willing to bet that some of those sentences are true… if not most of them. (And if not you, the other fine people reading this comment.)

                Were I able to demonstrate that I could make better decisions on your behalf, wouldn’t that be an obligation on my part after we hammered that out? On a utilitarian level, anyway?

                For me, the question doesn’t come up. It’s not about “better decisions” (however we want to measure “better” and however we want to measure the rulers we used to measure “better” and so on back a ways).Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,

                Adding on to James…

                Free enterprise and science are constructive problem solving algorithms. That is what they do. One uses constructive competition to create explanations of the natural world. The other uses property conventions, liberty and division of labor and exchange to create, distribute and combine solutions for mankind (aka consumers).

                Marxism was just a dumb idea that killed and impoverished people while borrowing every solution it could from their liberal neighbors.

                I never said that prosperity doesn’t come with problems such as obesity and inequality. However, I am willing to go as complicated as you will like in comparing the modern West to any predecessor. I am extremely well versed on what life was like in pre modern societies. In general it sucked according to just about any reasonable person’s definition.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jaybird,

                First, I reject the premise. The blunt fact about subjective utility is that you can’t actually know what increases my utility. You think I smoke too much, and think that therefore you will make me better off if you tell me not to smoke. But not necessarily so–you don’t know how much utility I get from smoking, and you don’t know how much utility I would get from living longer. You’re imputing to me your own beliefs about utility. From a subjective utility perspective, that makes no sense at all.

                It also assumes I’m making choices that diminish my own utility. Why would I do that? That’s the very definition of irrationality. We accept that some people are not fully rational–children and the mentally retarded, for example. We do make decisions for them. But let’s say we expand that to the general population, and assume that everyone–or at least a large proportion of everyone–is irrational. Then we’re in the position of likely having irrational people presuming to make decisions for other irrational people, on the assumption that their decisions will be better.

                But let’s say I was irrational, and you were not only rational but had a special machine that would enable you to measure my subjective utility. Would that obligate you to make decisions for me? I can’t possibly see how. The notion of being obligated to enhance someone else’s utility is being imported from somewhere; it’s not native to the theory of subjective utility. It’s just like the case of you drowning–I have no obligation to try to save you, even though I can be pretty sure it would increase your utility. (That doesn’t mean I must not try to save you–I certainly can, just as I can try to offer you advice on decision-making–it just means I have no obligation to do so.)

                Not trying to preach that as some kind of libertarians-should-all-think-this gospel–just explicating the subjective utility approach as I see it.Report

              • Avatar James Hanley in reply to Robert Greer says:

                . I am extremely well versed on what life was like in pre modern societies. In general it sucked according to just about any reasonable person’s definition.

                Exactly. One of the top killers in many pre-modern societies was infection from tooth decay. Not exactly better than controllable diabetes.Report

              • Avatar Roger in reply to Robert Greer says:

                Jaybird,

                The reason parents are Conventionally given the “right” to make decisions for their kids is that they do tend to do a better job than the kid can do on his own. If kids popped out of the womb as rational as an 18 year old, I would encourage giving them rights too.

                If each of us could do a better job of leading the life of the person to our immediate left than we could for ourselves, I would be all for allowing the person to my immediate right make decisions. Of course they can’t. They don’t know my values, my trade offs, my context, my goals. They don’t get feedback positive or negative connecting their actions with results. Self ownership is just a great idea. It is so great it is totally obvious.Report

              • Avatar Jaybird in reply to Robert Greer says:

                I’ve met enough people who sucked at life to come to the conclusion that there are, in fact, people who are not good at measuring utility (their own, included… and I’m not just talking about merely eating the marshmallow).

                Which is not to say that I’m a supporter of making decisions on the behalf of others… but just to say how I could easily see utilitarianism leading me to a very different conclusion than the one it brought you to.Report

              • Avatar James Hanley in reply to Robert Greer says:

                I’ve met enough people who sucked at life to come to the conclusion that there are, in fact, people who are not good at measuring utility (their own, included…

                A) Again, you are importing your own vision of their utility, rather than actually assessing their own subjective utility, because the latter is actually, empirically, technically impossible. That’s why economists rely so much on “revealed preference”

                B) You haven’t demonstrated that someone else would actually make decisions that would increase their utility. It might increase some more objectively measurable attributes, so no doubt the external decision-maker would focus on those to justify their actions, but they would at best be proxy measures, not actual measures of utility.

                Overall, I don’t think I’ve really made clear the subjectiveness of utility, so you’re still relying on some externally measurable type of utility. It’s a crucial difference. You’re assuming a knowledge that does not, and cannot, exist. (In fact if we take Hayek seriously–and I do–super-technology would not enable us to have that knowledge, because the information underlying it really only comes into effect after the action is taken, the exchange made, and so on.)Report

              • Avatar Jaybird in reply to Robert Greer says:

                That still doesn’t sit right. It feels like begging the question, for some reason. It feels divorced from the ability to act as well… every action a reaction to stimuli that will deliver the desired utility to the utility center.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jaybird,

                I’m not sure what question’s being begged. I suspect it just seems to grossly mechanistic and dehumanized to you (but forgive me if I’m totally wrong on that). I’m happy to try to discuss this more, but I have to run off to a 6th grade orchestra recital–definitely not utility maximizing unless one of those 6th graders is your own!Report

              • Avatar Jaybird in reply to Robert Greer says:

                When it comes to the subjectiveness of utility, that therefore we pretty much either end up at either that the individual is always the best judge of what decisions will result in their own maximized utility or that we just can’t know whether another decision wouldn’t have been worse on their behalf because, of course, the utility is subjective and even if we had sufficient tools that could measure it… it still wouldn’t be good enough.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Yes. I don’t see the problem. Are you suggesting anyone can really know another’s internal states better than the person can?

                Perhaps it would help a bit if I said that with proper technology we could know another person’s utility after an action or exchange,because then it has actually come into existence.Report

              • Avatar Jaybird in reply to Robert Greer says:

                No, not at all. But neither am I saying that it is not only impossible to measure in practice, it’s impossible to measure in theory and therefore we can never say that a person is mistaken about how much subjective utility he’d get from any particular decision he has made on his own behalf (as opposed to a seemingly “better” choice).Report

              • Avatar Patrick Cahalan in reply to Robert Greer says:

                Here’s one, James.

                A relative of mine has bipolar disorder, and is an alcoholic. The cycle goes like this: get cleaned up, get meds, take meds, be fine, forget to take meds a couple of times, go manic, decide manic is *way* more fun than “normal”, stop taking meds altogether, fall off wagon, get depressive, crash. Repeat.

                Is this person a good judge of their own utility? Is their utility relative? At what point in the cycle illustrated above do I assume autonomy should be respected, or not? Is there a point?Report

              • Avatar James Hanley in reply to Robert Greer says:

                Pat, The theory does assume mental competence, and ther are hard cases. To the specific case, I’d note that your goal is not actually to make choices for the person, but to keep them in a position where they can make their own choices. So you’re looking to do minimal intervention, after which you’d leave all their non-medication related choices to them.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jay bird, yes, exactly. I don’t see the problem. If you object, I’ll push you on how you propose to measure other people’s internal states. And I’d you think I’m begging questions, I’ll be eager to see how you answer that question without begging as many or more.

                Just think, you can’t do a good job of predicting your own utility ver far in the future,because in some important ways future JB is a different person than current JB. So how could you predict utility for someone who is even more removed from being current JB?Report

              • Avatar Jaybird in reply to Robert Greer says:

                We’ve seen the assumption, heretofore unstated, that “mental competence” was part of the theory.

                Is that begging the question at all?

                Have we instead wandered into “no truly mentally competent Scotsman” territory?Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jaybird,
                We’ve seen the assumption, heretofore unstated, that “mental competence” was part of the theory.
                Is that begging the question at all?

                No, I truly don’t think so. I’ve frequently said that I think libertarianism is an ideology designed for competent adults, and that it has difficulties with non-adults and non-competent adults. And of course my subjective utility approach is taken directly from standard economic theory, which is undoubtedly based on the concept of rationality–e.g., competent adults.

                I don’t think there’s any question begging when we begin with the premise of rationality, then recognize that some people are exceptions to the general rule. For example, legal theory uses the “reasonable person” standard frequently–but just because some people are not reasonable does not mean the standard is question begging or not useful.Report

              • Avatar Jaybird in reply to Robert Greer says:

                Are there any other premises that I’m likely to run into that if only I had thought about it like a reasonable person, I’d have known that you didn’t have to even state them in the first place?Report

              • Avatar James Hanley in reply to Robert Greer says:

                Jesus, Jaybird, we’re just having a conversation, and I’m trying to explain myself to you. I’m not trying to trick you; I just didn’t happen to realize what parts weren’t clear to you. I’m not looking to have a fight, so if you want to get all snarky, let’s just call it off. Hell, I don’t even care if you agree with me–I’m just explaining my approach to utilitarian libertarianism. My only real hope is that if you reject it you at least reject it with a proper understanding.

                Off the top of my head, no, I can’t think of any other basic assumptions. That doesn’t mean further discussion won’t make me remember, or become aware of, others.

                But I’ll say these two things. First, even though it’s primarily based on the concept of competent adults, so is every goddam bit of social contract theory and a large chunk of our legal code, up to and including our Constitution. The assumption of competent adults is not exactly a new idea, or some weird offbeat basis for theory. Second, even though it’s primarily based on competent adults, it holds to a pretty large extent for kids, too. I’d like my daughter to continue competitive swimming, but she’s not sure she wants to. Is my judgement in that case superior to hers, as far as making choices that best promote her utility? I’m not arrogant enough to think so.

                Really, I’m not making big demands with this theory. It’s pretty damned minimal. You can’t really know my preference order and my weighting of values of goods, so you can’t really know my utility. And I can’t know yours. It’s a theory that doesn’t demand much at all–it’s based on (take your pick) either a resigned recognition about the limitations of our knowledge or a basic humility about our own competencies.Report

              • Avatar Jaybird in reply to Robert Greer says:

                As I said before, I can see utilitarianism taking me to a very different place… but, I didn’t also have the premise of mental competence (which, if you ask me, is not a binary state as much as a continuum along which there are certainly points where one can be “mentally competent enough for jazz” without making it all the way to chamber music) and the idea that a viewpoint can’t be falsified in practice or in theory (“In fact if we take Hayek seriously–and I do–super-technology would not enable us to have that knowledge, because the information underlying it really only comes into effect after the action is taken, the exchange made, and so on.”), that’s another red flag for question begging going on there.

                I’ve no doubt that you’ve got enough evidence for you and you’ve come to the conclusion that your premises get you to your conclusion… but if I start from your premises (the ones I know about, anyway) I get to a different conclusion than the one you’ve reached.

                Though, granted, assuming “mental competence” does get me much, much closer than if I didn’t have it.Report

              • Avatar James Hanley in reply to Robert Greer says:

                the premise of mental competence (which, if you ask me, is not a binary state as much as a continuum along which there are certainly points where one can be “mentally competent enough for jazz” without making it all the way to chamber music)

                Agreed. Wholly. It’s just very hard to work with in practice, so as with all theories some simplifications are employed along the way.

                the idea that a viewpoint can’t be falsified in practice or in theory.. that’s another red flag for question begging going on there.

                Since we’re talking about internal states, I just don’t see how this is question-begging. Can we measure, and prove or disprove, how much you love your wife? Can we do it in either theory or practice?Report

              • Avatar Jaybird in reply to Robert Greer says:

                I don’t know that “love” is the closest thing to what we’re talking about here… how’s this? My wife, whom I claim to love very much, calls me at work and asks me to do something on the way home for her (or asks me to use sick/vacation time on her behalf or something).

                If my response is “sure, let me write this down in notepad and print it out so I can make sure there aren’t any mistakes”, that has a certain amount of utility.

                If my response is “I thought you were a feminist, do it your goddamn self”, that has a certain, different, amount of utility.

                Can we reach conclusions about my judgment if I consistently choose one of those responses over the other (if not my mental competence)?Report

              • What is best in life, justice or mercy? Love?

                Traffic lights? Universal health care?

                None of the above, silly. It is to crush your enemies, see them driven before you, and to hear the lamentation of their women.

                I am only half-mocking. The other half of me is in total agreement.Report

              • Avatar Liberty60 in reply to DensityDuck says:

                Property is defined via regulation, isn’t it?

                The land you are sitting on is recorded somewhere on a public map, its metes and bounds described, and your rights to it meticulously described in various regulations that govern what a leasehold can or can’t do, what mineral rights are or aren’t.

                You accuse me of stealing; I merely point out that your contract was recorded in non-conformance with the country recorder’s regulation, mine was, and voila- I am simply asserting my claim on my land upon which you are now squatting.

                The state defines what is or isn’t property, and picks and chooses which contracts get enforced, or not.Report

              • Avatar DensityDuck in reply to Liberty60 says:

                The only way that government recording of titles can be considered “regulation” is if you define the word as meaning “anything that the government does”, which is so expansive a definition as to be useless. (Is national defense the result of “regulation”? SAC existed because was against regulations to be killed by Russian atom bombs?)

                “You accuse me of stealing; I merely point out that your contract was recorded in non-conformance with the country recorder’s regulation, mine was, and voila- I am simply asserting my claim on my land upon which you are now squatting.”

                This is like reading one of those posts by someone who claims that the Federal government doesn’t have the authority to tax anyone outside Washington D.C. and therefore they aren’t legally required to pay their income taxes.Report

              • Avatar Liberty60 in reply to Liberty60 says:

                You are the one saying that enforcement of rights is not regulation; As if one is good, and the other bad.

                I could agree that they are not the same thing; but I am pointing out that the state uses regulation as a tool for defining what is or isn’t property, what is or isn’t stealing. One depends upon the other.

                As for my example- that actually happens. Look at the current controversy over robosigning and mortgage fraud.Report

              • Avatar Stillwater in reply to Liberty60 says:

                Seems to me that the use of governmental power to prevent possession from equaling ownership is a form of regulation of the market. I think that’s your point, isn’t it Lib?Report

              • Avatar Burt Likko in reply to Liberty60 says:

                The state defines what is or isn’t property, and picks and chooses which contracts get enforced, or not.

                This is true on its face, but misrepresents by omission. The state is governed by law, and the law announces to the public in advance what objective criteria about a contract renders it enforceable or not, or the susceptability of a particular thing of being rendered “property” or not. In so doing, the law allows individuals to calculate, in advance, what they will do to exercise their claims of ownership and their dealings with one another, and the government is thereafter bound by the rules it has previously laid out for all to obey. The rules are malleable, of course, but in a lawful society they exist, they are public, and they at least do not change retroactively.Report

              • Avatar Robert Greer in reply to Liberty60 says:

                Burt, there are all sorts of notice problems inherent in contract law. Even if the average Joe were impeccably versed in the nuances of the Restatement and attendant black-letter law, plenty of juridically-novel situations arise in contracts cases, and so judges often have to resort to some extra-legal norm to make their ruling. This means that, because the judiciary is overwhelmingly white, male, and economically and culturally privileged, this can be expected to lead to the legal imposition of these groups’ economic norms even though the litigants were probably following others. Maybe that doesn’t make you want to throw up your hands and become an anarcho-communist, but it’s definitely worth keeping in mind.Report

              • Avatar Roger in reply to Liberty60 says:

                Sorry to join late, but I am failing to perceive the distinction between laws and regulations as well.

                Density, do you have a simple explanation of how we should distinguish between the two?Report

              • Avatar DensityDuck in reply to Liberty60 says:

                A law is created by elected officials. A regulation is something which has the force of a law, but is not created by elected officials.Report

              • Avatar Robert Greer in reply to Liberty60 says:

                DensityDuck, you’re equivocating, and not even in a way that helps your position. Are you seriously saying that you don’t have a problem with regulatio– I mean, laws — if they’re statutory? And what about things like environmental regulations, which are created by the authority of statutes and are continually reexamined in a legislative context? Remember your hypothetical law about saying “we want to make stealing impossible and therefore all persons are required to maintain a fifty-foot minimum separation from one another” that you were so upset about? What’s stopping that from being a statute? And how would putting such a statute under the purview of a regulatory agency evil in a way it wasn’t before?

                Can you give me one reason to think that you have any idea what the hell you’re talking about?Report

              • Avatar Roger in reply to Liberty60 says:

                Density,

                If our property rights that we currently have were given to us by non elected officials, they would serve just as well, right?Report

              • Avatar DensityDuck in reply to Liberty60 says:

                “Are you seriously saying that you don’t have a problem with regulatio– I mean, laws — if they’re statutory?”

                Yes, and I don’t consider that equivocation, because if the citizens who voted for a representative do not like that representative’s actions, they can vote for someone else next time. If the citizens do not like the decisions of a member of the regulatory bureaucracy, who do they vote for?

                Let’s say that the NHTSA decides that in-car navigation systems are a dangerous distraction and should be illegal. This is most certainly something that affects dozens (possibly hundreds) of millions of people, and has a major impact on the business activity not only of American companies but of international ones. Wouldn’t you think that at least one guy that someone voted for ought to be involved in that decision? And yet it can be made without consult to the legislature at all. The closest the decision-maker comes to a voting booth is that his boss’s boss’s boss is the President.

                “Remember your hypothetical law about saying “we want to make stealing impossible and therefore all persons are required to maintain a fifty-foot minimum separation from one another” that you were so upset about? What’s stopping that from being a statute?”

                Nothing! Except that everyone who voted on that law would have to justify their choice to the voters come the next election. And, if the act were odious enough, they’d face recall by the people they claimed to represent.

                I mean, are you really claiming that there’s absolutely no difference between the Legislative and the Executive branches of the US government?Report

              • Avatar Robert Greer in reply to Liberty60 says:

                DensityDuck, I’m sorry, but it’s clear that you just don’t understand how this works. If the voters don’t like a regulation, they can vote in a different Congressperson who can amend the statute on which the regulation is authorized so that it bars such a regulation. Voters also have a very broad right to demand a public hearing on administrative decisions, and they can also generally sue the agency if it is not fulfilling (or overreaching) its duties as articulated in the legislatively-created statute.Report

              • Avatar DensityDuck in reply to Liberty60 says:

                “If the voters don’t like a regulation, they can vote in a different Congressperson who can amend the statute on which the regulation is authorized so that it bars such a regulation.”

                So laws and regulations are different things, and that the former supersedes the latter and is implemented by elected officials? You agree with me! That’s great! Looks like we’re done here.Report

              • Avatar Robert Greer in reply to Liberty60 says:

                No, we’re not. You were clearly equivocating between two senses of the word “regulation”: At the beginning of this conversation, you used it in the sense of “restrictions on the market.” Now you’ve retreated to the narrower sense of “rules promulgated by administrative agencies.” But that still doesn’t help you, because even rules promulgated by administrative agencies inform what is and is not property. You’ve been wrong the whole time, and the only thing you’ve managed to accomplish with this is to parade your ignorance of administrative law.Report

              • Avatar DensityDuck in reply to Liberty60 says:

                “At the beginning of this conversation, you used it in the sense of “restrictions on the market.” ”

                …no, I didn’t. Please keep your conversations straight.Report

              • Avatar Mike Schilling in reply to Robert Greer says:

                Because the right to private property comes directly from natural law.Report

              • My point exactly. Thanks for being pithy.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Really, I want to know how all the libertarian objections to the state in the regulatory sphere (which I largely share) suddenly fall away when the state decides who gets to keep the stuff they acquired and who goes to the stocks for thievery.

                I suspect you sincerely don’t. It looks to me as though you’re just waiting for responses that you can pounce on, rather than being willing to seriously consider what libertarians have to say. In other words, I suspect an essential lack of honesty in your statement.

                For us, it’s really quite simple. The rule against not drowning someone is different in an important way than the rule saying you must act to save someone from drowning. If you want to insist there’s no useful distinction there, we probably can’t have a useful discussion. But if you’re sincere about wanting to understand libertarian objections, then ponder the difference we see between those two things before just rushing to rebut it.Report

              • Avatar DensityDuck in reply to James Hanley says:

                James, you’re a horrible bastard who thinks that people should drown! How can you live with yourself? Did he who made the lamb make thee?Report

              • Avatar James Hanley in reply to DensityDuck says:

                James, you’re a horrible bastard who thinks that people should drown!

                You’re not the first to say that, but I’m glad it’s finally out in the open here at the League.Report

              • Funny, I was just reading an interesting essay where a libertarian and a drowning kid was the central image.

                http://hku-hk.academia.edu/SiegfriedVanDuffel/Papers/8928/Libertarian_Natural_Rights

                Since it’s germane to both the OP and to this digression, perhaps it will be helpful.Report

              • Avatar Liberty60 in reply to James Hanley says:

                I’m not getting how the distinction (or not) between statutes and regulation connects to the drowning person.
                Sure, I can see an important distinction between negative and positive, but calling one valid and one invalid seems logically unsupportable.Report

              • Avatar James Hanley in reply to Liberty60 says:

                There is a distinction between statues (laws) passed by the legislature (or the people in a referendum/initiative) and regulations promulgated by an executive branchl regulatory agency. But that distinction is irrelevant to the libertarian critique of regulation, which encompasses statutes as well as what are properly called regulation. Emphasizing that distinction has led down a blind alley, so far as this particular discussion goes.Report

              • Avatar Liberty60 in reply to Liberty60 says:

                OK, so if I am reading you correctly, the law against drowning people is valid, but a law compelling us to save one is not.Report

              • Avatar James Hanley in reply to Liberty60 says:

                Lib, That would be my take, and I think most libertarians would agree.

                Saying libertarians are anti-regulation is a bit of a misnomer (but we have no one to blame but ourselves for that confusion,because that’s the terminology we use). We’re not actually against all regulation of behavior of any kind; just most of it.Report

            • Avatar b-psycho in reply to Robert Greer says:

              …unless, of course, you reject the very existence of the state.Report

        • Avatar Roger in reply to Robert Greer says:

          Robert, I am willing to consider accounts of human nature that don’t fit into a Benthamite paradigm. Are you suggesting that doing so leads away from libertarianism, leads to a different libertarianism or something entirely different? How so?Report

          • Avatar Robert Greer in reply to Roger says:

            I think libertarianism can accommodate non-Benthamite views of human behavior, hence my weaselly wording. But I also think that as those views of human behavior are upended by modern psychology ( and sociology, behavioral economics, systems theory, cognitive science, etc.), that right-libertarianism’s justifications become far weaker.Report

            • Avatar Roger in reply to Robert Greer says:

              Robert,

              Fascinating! If I understand you correctly, you are saying that libertarianism either takes the utilitarian path, with all the baggage that entails, or is weakened by the implications of sociology, behavioral economics and cognitive science.

              I am probably not alone in wanting to hear more. I’d love to hear your thoughts now, or read them in a post on the main page. Thumbs way up!Report

              • Avatar Robert Greer in reply to Roger says:

                (I suspect you might be mocking me because you think I’m being uncharitable to libertarianism, but I’ll respond in earnest regardless.)

                People defend their libertarianism in different ways. Some take a very “natural law” approach, but as we’ve hashed out in this thread, that’s problematic because it devolves into a recitation of dogma if it isn’t supported by intermediate principles. Generally for libertarians, these intermediate principles are the “laws” of economics — the “natural order” that libertarian theory is theorized to conform to. But problematically for libertarians, these “natural laws” of human sociality and motivation and quite regularly undercut by novel social science research. There’s a whole field, behavioral economics, dedicated to updating economics with these breakthroughs. Insofar as these developments undermine orthodox economical thinking, they also undermine many of the conventional justifications for libertarianism.

                Of course, there’s also deontological libertarianism, which claims that we can discover correct rules of behavior from a priori axioms of conduct. But my view is that deontology is usually just a Trojan horse for the more pragmatic approaches: even metaphysical approaches to ethics and politics rely on ontologies of personhood and society, and these are eminently subject to criticism. Derek Parfit wrote a well-received book recently about how pragmatic and deontological approaches can be viewed as the same thing stated different ways; I would make a move like Parfit’s and ask deontological libertarians (Ayn Rand, early Robert Nozick) to cast off their a priori pretensions (which are indistinguishable in form from the dogmas that color traditional Thomistic “natural law” theories). Besides, it makes discussion a lot more productive.Report

              • Avatar Roger in reply to Robert Greer says:

                Hi Robert,

                No, I am not mocking at all. I love to hear good arguments, and am impressed with every point you’ve made. Indeed, as the discussion below reveals, I am on your side of most of the threads rather than the libertarians for a refreshing change. We libertarians so rarely disagree, that we basically ignore each other. This is fun for a change.

                I find Rand and Rothbard unconvincing, to say the least. I believe morality and ethics and rights are useful social conventions designed to allow us to accomplish things together. I believe free enterprise is a great way to solve problems constructively.

                I am pretty well versed in behavioral economics in a self learned capacity, but have not found anything there that caused me to doubt the value of free markets for solving the appropriate range of problems (what the appropriate range is may be another issue — I certainly don’t think markets solve all problems).

                I do agree that some freedoms can lead to bad results, that economic agents are less than rational, and that short time horizons can lead to massive mistakes.

                What are some of the specific problems that you are referencing from BE and sociology?Report

              • Avatar Robert Greer in reply to Roger says:

                I think phenomena like the endowment effect and anchoring show that people don’t view goods in a way consistent with the premises of orthodox market theory. I think it’d be fruitful to link up these findings to the Marxian literature on alienation.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Here’s the funny thing, Robert. The real, empirically accurate, critiques of the premises of orthodox market theory are being made by people who are, for the most part, real and pretty orthodox economists–not by people who take Marx seriously. None of their findings really lead in a particularly Marxist direction. They do show why we shouldn’t expect markets to work perfectly, but they don’t show that centralizing economic decision-making would improve efficiency. A system doesn’t have to be perfect to work better than the alternatives. I think that many critics of markets make that fundamental error–thinking that showing imperfections in markets demonstrates superiority of alternatives, despite not actually applying the same level of scrutiny to the alternatives.Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,

                I contracted the services of Dan Ariely in designing products applying these very phenomena. We built a suite of products at various price and benefit levels and used the concepts of BE to discover how best to present the products to consumers. The results were fascinating, and as you would expect, different from what conventional economic rationality would assume.

                Again tough, I’ve never found BE a threat. Indeed, a lot of libertarians worry about the ramifications of irrationality in non economics as well, such as in Public Choice areas.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                James, I don’t favor centralized economic planning, and as you’ve hopefully gleaned from my other posts, I very much admire many of the features of markets, except when they serve to justify patterns of inequality. I’m not theorizing any grand alternative right now (such an attempt seems foolish to this fan of spontaneous order), only trying to call bullshit on the justification and naturalization of inequality. I hope I can do that without being labeled a totalitarian communist, because that’s simply not my politics.

                Roger, I see BE as mucking with the welfarist models that undergird the traditional justification for markets. I have more time for Hayekian pseudo-epistemological defenses of markets, but I think if you mate those to a rudimentary class analysis to them it’s easy to come up with models where inequality is distortionary. But your work with Dan Ariely sounds fascinating, and if you’d like to e-mail me any info on it, I’d be very appreciative.Report

              • Avatar James Hanley in reply to Robert Greer says:

                I very much admire many of the features of markets, except when they serve to justify patterns of inequality.

                Of course as you’re aware (and this time I do presumptively believe you’re aware), inequality is a large part of what makes markets tick, and what makes them valuable.

                What you may or may not be aware of is that a libertarians’ response is that political distribution systems are also unequal–they just reward a different, and certainly no more admirable, set of skills.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                James, inequality doesn’t always make markets more efficient. Adam Smith wrote about how there’s a massive distortion in the labor market because although the master is in need of his workmen, “the need is not so immediate.” That’s a textbook example of how inequality can actually distort markets, but you’re talking like it just doesn’t exist or matter. Weird.

                I’m fairly well-versed in public choice theory, so your last sentence was apparently wasted. Just because I’m not a libertarian doesn’t mean I’m a statist.Report

              • Avatar Stillwater in reply to Robert Greer says:

                James, I don’t mean this as a gotcha, but didn’t you earlier say tht scarcity is what makes markets tick? Are those two things related in your view?Report

              • Avatar James Hanley in reply to Robert Greer says:

                Still, they’re related. If there was only scarcity, and naomi inequality, none of us would have anything to offer each other. But I also mean that markets reward differentially, and that creates incentives to innovate and to offer new products and services. The prospect of being unequal with others-having more than they do-isabig motivator. But if I gave the impression there was only one thing that made markets tick, that”s my bad. Like most things markets are multi-causal.

                Robert, I didn’t say all inequalities led to efficiencies, just that efficiencies are intrinsic to markets and part of what makes them possible and valuable. You read much more into my statement than was there. That said, I don’t remember the particular Smith example you give. What’s the inefficiencya there?Report

              • Avatar Robert Greer in reply to Robert Greer says:

                James: Fair point on my reading too much into your statement.

                I was preparing to write a laborious paragraph or two on Smith’s statement, but it looks like Wikipedia has done the work for me with this thorough article: http://en.wikipedia.org/wiki/Inequality_of_bargaining_powerReport

              • Avatar James Hanley in reply to Robert Greer says:

                Ok, I thought maybe that’s where you were going. That’s a contested claim, though. If I have better alternatives than you,it’s not efficient for me to pay you or someone else more than it takes to bring you into the exchange. And while you might want more , it’s efficient for you to accept what is better than your other alternative.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Robert, Another way of putting it is that in the case described, labor is abundant so is not very valuable. I don’t think Smith said it was inefficient, he was just noting the (ugly) reality of it.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                James, whether that exchange is considered “efficient” depends entirely on your framing of the problem. If you think that the market price of labor should reflect a free exchange of labor and capital in the absence of coercion, then it’s pretty clear that the pseudo-market in Adam Smith’s example is wildly distorted — labor is being over-utilized relative to the other factors of production, compared to a scenario where there is no inequality of bargaining power.Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,
                That is why I think coercive collusion and barriers to entry are a bad idea in markets. Absent these issues, free markets minimize the effects of power imbalance. Long term wage rates go to the market rate. That is why markets are fair.Report

              • Avatar Robert Greer in reply to Robert Greer says:

                Roger, read your argument again. It’s manifestly a tautology.Report

              • Avatar Roger in reply to Robert Greer says:

                Robert,

                Which part that lack of coercion leads to free markets, or that wage rates go to The market rate, or both?

                sorry, I’m trying to cook dinner while typing…

                My point is that free markets lead to market rates and eliminate or at least seriously reduce effects of power imbalance between employees and employrs.Report

              • Avatar James Hanley in reply to Robert Greer says:

                Robert,

                Uh, oh, here we go…

                whether that exchange is considered “efficient” depends entirely on your framing of the problem.

                Efficiency is putting resources to their highest valued uses. If you want to use some other definition, we’re not going to be having a conversation about it.

                If you think that the market price of labor should reflect a free exchange of labor and capital in the absence of coercion, then it’s pretty clear that the pseudo-market in Adam Smith’s example is wildly distorted

                No. Flatly, no. We had a long long debate on this blog about that issue, in the context of sweatshops, a few months ago. I don’t know if you were reading/participating on this blog then or not. But in a nutshell, I think the claim of coercion when person X has shit for alternatives is half-asses moralizing and nothing more substantive.

                If I need some labor, and have masses thronging for a job, and your only other alternative is begging on the street or scrounging through the junkyard, then if what pay I offer you is better than those alternatives, then a) mutual exchange has made you better off, and b) your resource (labor) has been put to its highest value. The fact that it doesn’t have much value because you don’t have something to offer that I can’t get from a thousand others means nothing more than that your labor doesn’t in fact have much value.

                The “it’s coercion” argument, as presented, for example, in the Wiki link, claims that the employees are coerced because they can’t shop around. But that’s a false statement of fact–they can look around, they just don’t necessarily find it very advantageous, and the reason is because they don’t have much to offer.

                And it’s not unusual. I once wanted to buy some jewelry for my wife, but being a poor grad student I couldn’t afford it. Would-be buyers like me were plentiful, so they could ask a lot, and I had little to offer them. So our bargaining power was unequal, no? But was it a perverted market? Not at all. I ended up selling something I did have that was in demand, blood plasma, to be able to afford the jewelry. Was this some kind of horrible perverse market, that I had to literally sell my blood to buy my wife a gift? Not at all.

                In the case of labor, it’s just like this, nothing more than standard supply and demand. To get where you want to go, you have to ignore that and throw in some moralizing that isn’t applied consistently throughout the analysis of markets (well, by some it its, and they do end up advocating central planning). Really, it’s just moralizing creeping in and masquerading as empirical analysis.

                Hey, you know what? If you want to write a guest post about this, ask Erik. Of course he controls the blog and so there’s unequal bargaining power. Damn!Report

  11. Avatar Stillwater says:

    Well, I’ll second not knowing what natural law means Tod. I think you’re right about it being self-evident (albeit not obvious) and absolute (given the types of being we are). In my understanding of it – which isn’t a good one! – natural law manifests in talk of natural rights and natural justice. These are things which the natural law advocate thinks exist conceptually prior to culture and adhere in individuals independently of the culture they live in. So it’s supposed to be anti-relativist, anti-constructivist, and non-reducible. Further, cultures are better or worse insofar as the prevailing norms and laws reflect natural law.

    My problems with it are both what it argues for (basic non-reducible intrinsic rights) as well as how it argues for them. So on that score, I think both the metaphysics as well as the epistemology are wrong. The idea seems to be that we can apprehend, or argue persuasively anyway, for sui generis inherent non-reducible un-analyzable intrinsic moral properties of individuals. I don’t see how that argument can be made without begging questions. But I also don’t think that understanding of basic rights and can be sustained in any event. So I think the view has lots of problems, at both the metaphysical as well as the epistemological level.

    Re: your suggestion that it really reduces to “God said so”: I think that’s right. Most natural law advocates – at least in my view – think that natural law derives from the dictates of God. And supposedly, when we analyze this stuff and come to the conclusion of natural law, we’re apprehending God’s divine plan in some way. But I think that gets things backwards in problematic ways (by begging the initial question), but also by confusing apprehension of God’s will with God’s reasons. It’s an age old question: is something right because God said it, or did God say it because it’s right? And I guess that a short way of stating my criticism on this point is that anyone who leaves off analysis and justification at the level of ‘God said it’ isn’t giving an analysis or a justification. So the God part of it really ought to drop out.Report

    • Avatar DensityDuck in reply to Stillwater says:

      I think what Tod means by it “reducing to God said so” is that the basic assumptions of Natural Law are as unprovable as anything that’s ever come out of religious belief. You might call it Common Sense or Human Nature or Basic Empathy but it really just works out to fancied-up restatements of “I’d like the world to work like this”.Report

      • Avatar Stillwater in reply to DensityDuck says:

        Re-reading the OP, I think you’re right about this. And it’s got me athinkin.

        Tod’s worry is that natural law seems to be an argument invoked to justify people’s already held beliefs. So it puts the the justification horse behind the belief cart. Beliefs ostensibly justified by natural law then sorta hang in the air without anything more than a vague feeling pinning them down.

        And maybe all moral theorizing starts out that way – with a vague feeling that doesn’t have a robust justification. I think the difference in some other views and NL is that (for example) an argument to extend basic rights to an outgroup because they lack any relevant properties justifying their exclusion is countered by the NL advocate by circular reasoning. Those people don’t get extensions of basic rights because doing so violates ‘natural law’ where that law, or the basic right being appealed to, cannot be justified in any non-question-begging way. So as an example, (one type of) natural law advocate thinks that government enforcement of right R for person P is justified by natural law, but that government cannot extend that right to person Q because it violates natural law, even tho no discernible or more basic properties are provided to justify it. It’s just asserted.

        As Kyle wrote upthread, the conclusion that natural law arguments seem so thin may be because people misuse natural law justifications in just the way described in the above example. If so, then what’s being appealed to isn’t natural law as a justification but a rationalization. But if that’s right, then natural law seems to me like such a weak theory that it doesn’t tell us anything beyond platitudes about what we ought to do as individuals or the laws we ought to create/enforce as a society. It loses it’s both its explanatory as well as prescriptive power.Report

        • Avatar Jaybird in reply to Stillwater says:

          In the same way that the sky gods overtook the earth gods, in the same way that Paul’s ethereal God overtook the sky gods, Natural Law seems poised to overtake the ethereal God.

          And, if you ask me, for the same reasons.Report

  12. Avatar North says:

    A pity we don’t have Bob here for this. He’s have something interesting to say about tension of the poles between immanence and transcendance in our gnostic delusions. *sigh* Good times.Report

    • Avatar Mike Schilling in reply to North says:

      Voeglin, Voeglin, Voeglin
      Keep that discourse, Voeglin
      Voeglin, Voeglin, Voeglin
      Good times!Report

    • Avatar mark boggs in reply to North says:

      I think your use of the word “interesting” to describe what Bob’s opinion would be on this is extremely generous. Besides the other, less generous qualifiers I can think of to describe his opinions, “predictably obscure and randomly word-saladed to the point of incomprehensibility” is one that would work.Report

  13. Avatar bradP says:

    I don’t think there is a people independent “natural law”, but I believe that there are particular behavior rules and guidelines that can be derived from human nature.Report

  14. Avatar Rose says:

    If it were not finals week, I would so be all over this. Suffice it to say, at the very least, natural law has been used to justify lots of conflicting “laws.”Report

  15. Avatar CK MacLeod says:

    There is no critique of any assertion of Natural Law that doesn’t imply an alternative Natural Law under whatever name. It’s the law.

    Natural Law as the name of a school or philosophy comes up because an interpretation of it shaped the worldview of the American Founders and Framers, and still sets the terms of possible political discussion and practice in America and the world America has made, despite all of the efforts to demonstrate or theorize its obsolescence or falsehood.

    Still trying to keep this practical or at least common sensical (“stupid”): We can think of Americanism as a machine, a two-stroke engine. One stroke is Natural Law (or one interpretation of it), as symbolized by the Declaration of Independence and its reference to “self-evident” “truths” justifying a break with Britain, whose rule over her Colonies had been exposed as “unnatural” – both immoral and impractical, both odious and unsustainable.

    The other stroke is Legal Positivism, as symbolized by the Constitution and its mechanisms of self-governance. The Preamble and the Bill of Rights are in this view like “Declarationist” bookends: They recall the Spirit of ’76 that made the Document of ’87 possible and that continues to circumscribe it.

    Within that circumscribed space, we have a Legal Positivist “government of laws, not men”: Every law justified or determined according to another law. Our understanding and belief in Natural Law of some kind, whatever we call it, may lead us to reject a particular law or judgment, but the same understanding and belief will lead us to seek reform – lawful revision of the law – rather than criminal defiance. This Legal Positive universe or sub-universe was, however, constructed by “men, not laws” – by the acts and decisions of human beings, including revolutionary violence and war.Report

  16. Avatar Chris says:

    Tod, this might help:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=199928

    The problem is that “natural law” and “natural law” each mean about a bazillion (possibly a gazillion) things, depending on who, when, and where we’re talking about them. There are people here, like Jason, whose natural law views are probably as or more informed by Strauss and contemporary legal theorists as they are by Aquinas, while there are others, like Tom, whose views tend to be very Thomistic. A lot of it has to do with whether we’re talking about morals or laws (or both, or neither — sometimes it’s neither, somehow). A lot of the differences between theories concerns what types of causes they consider: someone like Jason probably focuses on material and formal causes, whereas Tom and the Thomists are going to be heavily focused on final causes. The resulting paths will be very different, even if the conclusions are the same (or different: Tom’s focus on final causes gets him to the point where he cannot except the possibility of gay marriage, while Jason is in fact in a gay marriage — we can quibble about Tom’s reasoning, or Jason’s, but the quibbles will have to take place on the causal level that the two arguments are made).

    I generally find the idea of “natural law” distasteful, both because it’s vague and equivocal, but also because it tends, in my experience, to be a soft piece of soggy wood yielded as though it were an unbreakable, razor-sharp sword. That might just be because I grew up Catholic, and have spent too much time talking to priests.Report

  17. Avatar Rod says:

    I’m going to break my own rule here and post a comment prior to reading the other comments. I, too, have often run into this when arguing/debating libertarians on the one hand, and distributists (Catholic economic social theorists) on the other. Notably, they both will refer to “natural moral law” but their theories are seriously at odds and, generally, they can’t stand each other.

    My take on it is this: We’re the product of eons of evolution by natural selection. Natural selection is a complicated, but ultimately rational, process. By that I mean it can be modeled mathematically. The process operates at both the individual level and over higher levels of organization. (For that matter there is evidence that it operates at the level of cells, leading to complex structures such as our brain.)

    Human beings are relatively fragile creatures. We make up for that with our large brains. These big brains enable us to engage in complex social activity. How we interact with others is a large part of what we call “personality” and much of that is internalized as emotional reactions which cause us to act. A facet of our personality is a kind of internal moral compass we call the “conscience”.

    Many people speak of “moral intuition”. I believe that is synonymous with our conscience. It’s a short-hand that tells us whether an act is good or bad. It’s just something we feel and then we translate that into the ideation. Like any other human trait, our conscience is the product of an interplay between our genetic endowment and the environment.

    Here’s where it gets interesting to me. Certain personality traits, including our conscience, either enhance inter-personal competitiveness or inter-personal cooperativeness. For most of human history we lived in small bands of hunter-gatherers. Cooperativeness enhanced our ability to live together in such bands, while competitiveness enhanced our ability to dominate within the band. Individuals that were too competitive tended to decrease band cohesiveness, while being too cooperative tended to decrease your likelihood of mating. Bands themselves competed for resources and the bands which cooperated most effectively provided the best survival opportunities for the members of the band. And, of course, these small bands were highly inter-bred.

    So a tension was set up between our competitive and cooperative traits with some balance overall winning out. Part of that overall set of traits was expressed in our conscience which we now would call a moral intuition. A lot of that gut moral reasoning has a huge in-group vs. out-group thing going on. Whether killing is “murder”, for instance, depends a lot on who you’re killing. Same for enslavement.

    So what I think is going on here is that what people call the “natural moral law” is really just our gut intuitions, translated by our big ole cortex into rational concepts. “Self-evident” is just a fancy way of saying “feels right to me.” And these moral intuitions are also partly shaped by culture. So in the end, you get a number of formulations of natural law that share certain core elements but still have some variation.

    Something like that anyway…Report

    • Avatar Liberty60 in reply to Rod says:

      Yes except that by codifying intuition into something called Natural Law, which could be bandied about by theologians and philosophers, the lay people were encouraged to lay aside their own intuition in favor of the Prescribed Model.Report

    • Avatar Roger in reply to Rod says:

      Rod,

      Cool comments. Thumbs up.

      I agree with much of your comments on moral intuitions. I would like to probe deeper into your cooperation and competition bifurcation.

      I believe we make an intuitive mistake of the kind you mention by assuming competition is usually bad and cooperation is usually good. I believe there are constructive and destructive versions of both. For example, hunters can compete constructively to see who brings home the most game, or throws his spear the most accurately. Prospective leaders can compete constructively to provide the best advice or to help sick members of the tribe the most. Moccasin makers can compete to craft the most comfortable footwear.

      On the cooperation side, it can be destructive when used to band together to exterminate ones neighbors, or to resist change for the better.

      Where you use the term competition and cooperation, I tend to substitute the words positive sum (value creating or win win) and zero or negative sum (value destroying). I believe competition and cooperation can be used to either end. Indeed, I believe we need room in our dictionary for COOPETITION which is the positive sum combination of both.Report

  18. Avatar Tom Van Dyke says:

    If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend, diligently, to these, you will not require any others.

    There is so strong a similitude between your political principles and those maintained by Hobbes, that, in judging from them, a person might very easily mistake you for a disciple of his. His opinion was, exactly, coincident with yours, relative to man in a state of nature. He held, as you do, that he was, then, perfectly free from all restraint of law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the maintenance of social intercourse. But the reason he run into this absurd and impious doctrine, was, that he disbelieved the existence of an intelligent superintending principle, who is the governor, and will be the final judge of the universe.

    Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

    This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.” Blackstone.

    That’s Alexander Hamilton, as you may have guessed, “The Farmer Refuted.”

    http://press-pubs.uchicago.edu/founders/documents/v1ch3s5.html

    My own interest in natural law is largely re the Founding, that as the D of I puts it, the laws of nature and nature’s God, as Himmelfarb put it, endow us with “the right to have rights.” The rest is details.

    As for the strictly Aquinas part of natural law, that’s taller weeds; my only argument would be that it’s as valid a philosophical system as any other, and to discuss Thomism is only to illustrate that socially conservative attitudes cannot be conveniently dismissed as mere fideism, i.e., “because the Bible says so.” That’s the easy way out.

    As to why “socially conservative” attitudes are an issue beyond proving direct harm, there is the problem of “the normativity of law*.” Like it or not—and especially with the wane of the tertium quid of “society”—our laws are not just a nod and a wink in favor of liberality, liberty [if not license]—our laws say who and what we are.

    That is, if a society—a nation—is indeed more than the sum of its laws. I argue it must be, if only because law alone is insufficient to the task of holding a free nation together. [See John Adams, in like a half-jillion quotes.]

    “We are a nation of laws, not morals” would be an absurd formulation.

    [*HT: Chris, for the pointer to Brian Bix. That was the formulation I’ve been looking for.]

    http://juris.jotwell.com/on-not-explaining-laws-reason-giving-power/Report

    • Avatar Chris in reply to Tom Van Dyke says:

      Tom is right about Aquinas. I think everyone who’s serious about education should have to learn Aquinas (not everyone should have to read Aquinas, because seriously, that’s not fun), because Aquinas is an exercise in how to reason well generally, and how to reason well about incredibly difficult and abstract things in particular. There haven’t been many minds like Aquinas’ in our history.Report

  19. Avatar Will H. says:

    As I remember (and it’s been a long time), natural law is something of a “first cause” of law.
    It precedes statutory law, canon law, and common law.
    That’s the answer on the test, but I can’t really remember what it means exactly.

    In your example:
    If we have freedom of religion, you should not be able pass a law that says I can’t do [baneful activity] based on the fact that it transgresses your particular dogma.
    The idea of natural law is crap.
    Natural law isn’t recognized in this country or any other.
    Our freedom of religion is based on statutory law; the Bill of Rights and the Fourteenth Amendment.

    As I remember (with above caveats), the important consideration with natural law is that our Constitution is unable to grant us rights. It only limits the powers of government.
    The rights themselves preceded the government.Report

    • Avatar Tom Van Dyke in reply to Will H. says:

      Our freedom of religion is based on statutory law; the Bill of Rights and the Fourteenth Amendment.

      This statement is contradicted by this one:

      As I remember (with above caveats), the important consideration with natural law is that our Constitution is unable to grant us rights. It only limits the powers of government.
      The rights themselves preceded the government.

      The latter is correct, the “right to have rights”:

      This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.” Blackstone.Report

      • Avatar Stillwater in reply to Tom Van Dyke says:

        But the right to have rights is a meta concept which says nothing about the actual rights we have. Two people could agree that individuals have the right to have rights and disagree on what those rights are. Just as two people could disagree on whether people have the right to have rights, but agree on a specific set of rights. Whether we have the right to have rights or our rights are determined entirely by convention is irrelevant wrt determining the rights people can act on, or the rights government ought to codify and protect.Report

        • Avatar Tom Van Dyke in reply to Stillwater says:

          First things first, Mr. Still, that rights are simply not positive law, i.e., whatever you can wrest from the government. The implications of the question–and its answer—tell us how to proceed.

          At this point, “natural law” is bullshit, or it dates to the Enlightenment rather than Aristotle or Cicero, or it’s an instrument of oppression rather than the foundation of liberty.

          As you can see, we have not even begun. We’re not even Wiki-deep, which speaks ill of our educational system, since America was founded on natural law—whether it exists or not.Report

          • Avatar Will H. in reply to Tom Van Dyke says:

            As I remember it, the rights are granted to us by natural law.
            The Constitution only limits the powers of government from encroaching upon those rights; but ti grants no rights which were not pre-existent. In fact, it is beyond the scope of the work to do so.Report

          • Avatar Stillwater in reply to Tom Van Dyke says:

            Personally, I think the question ‘do we have the right to have rights?’ is a confusion, a trick of language. A right is an agreed upon permission which entails obligations and restrictions from others and protections by government. So the question ‘do we have a right to *those things*?’ effectively means ‘do we have the agreed upon permission which entails obligations from others and protection by government to have permissions which entail obligations from others and protections by government’. That makes no sense. What we do have is a set of basic conditions which justify the positing of right to individuals. So we don’t have the right to have rights, we are justified in positing rights.

            Now, on your understanding, the concept of a right to rights is based in natural law. And I’d ask what that conception is such that the right to rights is anything other than a confusion?Report

            • Avatar Jaybird in reply to Stillwater says:

              Compare “right” to “privilege extended” and you may see some distinctions worth noticing. What are the obligations of others when it comes to my right to, say, free speech? What are the obligations of others when it comes to my right to, say, subsidized podiatry insurance?Report

              • Avatar Chris in reply to Jaybird says:

                That depends. Does subsidized podiatry insurance fall out of some more abstract right?Report

              • Avatar Jaybird in reply to Chris says:

                Freedom from ingrown toenails?Report

              • Avatar Chris in reply to Jaybird says:

                I’m quite sure that you’re bright enough to know that, when someone suggests possibly taking a step back to a more abstract right, you know that sarcastically suggesting an even more specific one is a cop out.Report

              • Avatar Jaybird in reply to Chris says:

                What would the abstract right be?Report

              • Avatar Chris in reply to Chris says:

                I don’t know. That’s the problem, right? How do we get to, say, a right to health care (from which a right to podiatry might arise) from a more abstract right? Like a right to life or health or pursuit of happiness or something. I mean, there are arguments to be made (and many have). I suppose we could start there. I feel like Tom, now: we’re not even at wiki level if our arguments that there is no right to health care are amount to, “What, do people have a right to have their ingrown toenails treated? Huh?! HUH?!”Report

              • Avatar Jaybird in reply to Chris says:

                Much of the problem is that we’ve conflated a lot of different concepts together and we jump between them (sometimes in the same breath!) when we talk about rights.

                Before we talk about “health care” (which I’m sure we’re get back to), it may be more illuminating to talk about marriage. I’ll talk about me (awesome). Maribou and I are married. Let’s say that the government, for whatever reason, wanted to say that we couldn’t get married. (Let’s say it was the 40’s and they didn’t want to let us marry due to some silly Irish vs. White People law on the books.)

                There is a very real sense that the government could say “you are not married”. They could withhold a lot of privileges.

                There is also a very real sense in which our marriage falls so far outside of the competence of government that it’s silly to imagine the government saying a thing. They could kill us, torture us, jail us, separate us… but they can’t make us not be married. They don’t have that ability. Marriage exists independently of government, in this sense of the term.

                I’m guessing that, much like we do with marriage, when we talk about anything we’re talking about two (or three or four) different things in the same breath.Report

              • Avatar Tod Kelly in reply to Chris says:

                On the marriage subject, does it help if we simply exchange the word “right” with the word “privilege?” As in, “you can’t have the government allow one group of people to have the legal privilege of being able to get married, but not allow another group that same legal privilege.”

                Does that get us to where we need to get to address the actual issue of inequality, without getting sidetracked on the “what the definition of ‘is’ is” argument about what is and isn’t a positive or negative right?Report

              • Avatar Will H. in reply to Chris says:

                On health care: We have the right to care for our own health. There are only a limited number of instances where there is an enforceable right for someone else to care for our health; emergency rooms are required to, jail officials in limited circumstances, etc.

                On marriage: Marriage comes from canon law. But there is no right to marriage. It’s a sacrament of the church, which is a matter of privilege.Report

              • Avatar Chris in reply to Chris says:

                Marriage, in the sense you’ve described, seems like a purely mental phenomenon. That is, you think you’re married, and Maribou thinks you’re married, therefore you are. Otherwise, the state prohibiting it and keeping you away from each other would be the end of it, right? I mean, it’s not a piece of paper (that can be torn up), and it’s not really a contract (that can be broken by a third party, no? I mean, most contracts can). So it’s just a mental thing. You each agree to think of yourselves as married (and really, you could be the only one thinking it, if, say, she’s in a coma or something).

                I’m not sure where this gets us then, but I’m happy to follow along to see where you’re going.Report

              • Avatar Tod Kelly in reply to Chris says:

                “marriage [is] a sacrament of the church, which is a matter of privilege.”

                But this isn’t correct. My sister, for example, is married despite the fact that the ceremony took place at city hall, and has not been sanctioned by any religious institution.

                Now, you might argue that marriage SHOULD only be a religious sacrament, and – I dunno – we should outlaw the marriages of people that haven’t done the proper religious ceremonies. I don’t think it’s a good idea, mind you. If you do I’ll leave it to you to float the test balloon to the faithful that their marriages will no longer be recognized by the state.Report

              • Avatar Jaybird in reply to Chris says:

                “Marriage, in the sense you’ve described, seems like a purely mental phenomenon.”

                One of the senses, yes. However, and this is a very very very very important point:

                The fact that it is a purely mental phenomenon makes it no less real than if we had a guy wearing a black robe standing in front of us giving a slow holy mumble as he waved his arms around and left the building to throngs of cheering relatives. It makes it no less real than if the government assumed that she got my stuff after I died.

                These three phenomena (do doo do do do) are three distinct phenomena (do doo do do).Report

              • Avatar Chris in reply to Chris says:

                I’m not sure where you’re going with this still. Some rights, it seems, have to be more than merely the right to think whatever the hell we want (which, of course, would be an absurd right anyway, since we can’t do that anyway). In fact, that doesn’t even seem to be a good place to start rights. Presumably they have to start outside of our minds, or they will never really have any effects other than inside of them.Report

              • Avatar Tom Van Dyke in reply to Chris says:

                As an online philosophical discussion grows longer, the probability of applicability to gay marriage approaches 1Report

              • Avatar Jaybird in reply to Chris says:

                Presumably they have to start outside of our minds, or they will never really have any effects other than inside of them.

                Emergent properties are delightful things.

                If you could give me an example of a right that exists outside of folks, I’d enjoy seeing the example.Report

              • Avatar Mike Schilling in reply to Chris says:

                (Let’s say it was the 40?s and they didn’t want to let us marry due to some silly Irish vs. White People law on the books.)

                Now I’m picturing classes preparing students to convert to Irish.Report

              • Avatar Jaybird in reply to Chris says:

                As an online philosophical discussion grows longer, the probability of applicability to gay marriage approaches 1

                Would you agree that this is due to the nature of gay marriage and the overlap it has with issues frequently discussed in philosophical discussion such as: Love, Privacy, Contract Rights, Religious Belief, and/or the tendency of people without a whole lot of philosophical training to believe that they have jurisdiction over the Love, Privacy, Contract Rights, and Religious Beliefs of others?Report

              • Avatar Jaybird in reply to Chris says:

                Now I’m picturing classes preparing students to convert to Irish.

                “Hold the bottle in your right hand and your shot glass in your left hand.”Report

              • Avatar Chris in reply to Chris says:

                The right to free assembly exits, presumably, outside of folks, in that what’s inside of folks is one (well, except for Sybil, and assembly means more than one. Guns tend to be outside of people. Hell, imprisonment is outside of people. Come to think of it, most rights have some affect on the material, formal, or at least social conditions of people. “Marriage because I think it” doesn’t, really, except to the extent that my thinking something is true influences my behavior.Report

              • Avatar Tom Van Dyke in reply to Chris says:

                No, JB, I think people get bored and want to cut to the chase. If it doesn’t get us to gay marriage, it’s a bogus philosophy. They’re interested in politics, not philosophy, fighting not understanding.

                And I didn’t mean that personally: I’ve seen it virtually every time these things come up and realized another corollary to Godwin’s Law.

                [The reply to our friend Karl is that the laws of physics don’t change, our understanding of them does. So it is with natural law. If it exists atall, of course. Perhaps the universe is just one big clusterfuck, and any sense we think we’re making of it is a just comforting illusion.]

                [There is a fallibilist side of me that allows for that possibility.]Report

              • Avatar Will H. in reply to Chris says:

                My mistake for sloppy writing while I’m preoccupied.
                Marriage is derived from canon law.
                Some states do recognize a common law marriage, which is the rough corollary of no-fault divorce.
                Which is to say, that it’s not a matter of statutory law.
                Our system of laws do not recognize canonical or ecclesiastical law; Sharia or otherwise.Report

              • Avatar Stillwater in reply to Jaybird says:

                The negative/positive obligation doesn’t resolve this problem, JB. Or at least, I don’t think it does. Maybe Tom could analyze the distinction in those terms, but I think that would beg some questions as well. Does the phrase “the right to have rights” get analyzed as the right to only negative-duty rights? But why is there a right to only those? And what does a right to those rights mean anyway?Report

              • Avatar Chris in reply to Stillwater says:

                The negative/positive distinction is, in any formal analysis, an arbitrary one. I can restate any positive as a negative, and vice versa. It hides, or at least elides, something else. I don’t mean to say that people who use it aren’t getting at something important, they’re just doing so sloppily.Report

              • Avatar Jaybird in reply to Stillwater says:

                It seems to me that if a right is not absolutely sustainable and time independent, it’s not really a right.

                Which, if taken to its logical extension, makes for some interesting thoughts on property…

                But, if I were to sum up quickly (I have to go!), it’d be to explore the question of “The Right to X.”

                If we agree that I don’t have a Right to X… does that give you the Right to prevent me from having X? To take X away from me? To kill me if I refuse? What Rights have you to enforce the idea that I don’t have a Right to X?

                This is why I think the “Right” vs. “Privilege Extended” distinction is a very, very important one. Without government, I could very easily have no privileges extended at all… but I could still have a great many Rights. (And, Chris, that ain’t exactly arbitrary.)Report

              • Avatar Chris in reply to Jaybird says:

                It seems to me that if a right is not absolutely sustainable and time independent, it’s not really a right.

                Sustainable under what conditions? Because at the extreme, this does away with anything we might consider a candidate for righthood.Report

              • Avatar Jaybird in reply to Chris says:

                What do you mean “we”?

                Let’s just say that it doesn’t make sense to say that something that would be a right in 2012 wouldn’t necessarily be a right in 2011… or, for that matter, something that was a right in 2011 would no longer be a right in 2012 because, for whatever reason, we ran out.Report

              • Avatar Chris in reply to Chris says:

                That definitely makes property a problem. It also makes a lot of things that we would consider basic rights a problem. I’m not sure what it leaves, really, other than the thought-rights you seem to be talking about elsewhere in the thread.Report

              • Avatar Jaybird in reply to Chris says:

                Which brings me back to this:

                If we agree that I don’t have a Right to X… does that give you the Right to prevent me from having X? To take X away from me? To kill me if I refuse? What Rights have you to enforce the idea that I don’t have a Right to X?

                Because if we establish that I don’t have the right to this, or that, or the other… I don’t necessarily see how that gives you the right to, say, come over to my house, gun drawn, to rectify the situation.Report

              • Avatar Chris in reply to Chris says:

                Except I don’t think rights are just about what we think about the world. I think rights are, if they’re to be effective at all, about the world itself. Now, I don’t think rights are immutable, or outside of time, or outside of a society, or whatever. I think they’re pretty much what we decide, together, they should be, and what we’re then capable of enforcing. They’re subject to whatever revisions we choose, together, because we think they’re not working for whatever reason, or because we think we need to add some things to make them work, or because we just decide that we want different things now than we did back when we initially chose the rights. And that’s when things are going really, really well. Most of the time, power determines rights, and power only chooses the rights that allow it to perpetuate itself.Report

              • Avatar Tom Van Dyke in reply to Chris says:

                Most of the time, power determines rights, and power only chooses the rights that allow it to perpetuate itself.

                This is Thrasymachus’ argument to Socrates in the very first chapter of Plato’s Republic: “Justice is in the interest of the stronger.”

                I’ve always thought Thrasymachus won. They tell us in school that Socrates won, but I don’t think so.Report

              • Avatar Jaybird in reply to Chris says:

                Chris, then that means that women in Afghanistan do not, in fact, have a right to read. African-Americans in 1820 did not have a right to move about freely. Something something Germany something.

                We can’t say “these people had Rights that were violated”. We’re left talking about time dependence and culture and society. It’s meaningless to say that something is a right or something isn’t… because society may change its mind tomorrow. To change it to something else the day after.

                This is, effectively, nihilism. Nihilism has a lot going for it, of course (foremost is the “it’s probably right” thing which is no small thing indeed) but, to bust out our Pascal, it’s not the way to bet.Report

              • Avatar Tod Kelly in reply to Chris says:

                JB – Does a “right” have to be moral? What I mean is, it seems obvious to me that blacks in 1850 Alabama had fewer rights than white land owners. This seems a very separate thing than saying that it was therefore moral, just and OK. Rather than nihilism, it seems it’s a recognition of conditions that should have been viewed as unacceptable.

                Saying those blacks had exactly the same rights as everyone else, but it was all on the QT, seems like having the semantics of the word “rights” do a lot of heavy and unnecessary lifting.Report

              • Avatar Chris in reply to Chris says:

                Jaybird, for all intents and purposes, Afghani women don’t have the right to read. Except, they’re also citizens of the world, and the world (or at least the West, which seems to think it runs the world) has decided that women have the same rights as men, and therefore they do have rights which we try to enforce through economic or other means (like blowing shit up). If we didn’t think, as a global society, that they had rights, they sure as hell wouldn’t. Again, what would it mean for them to have rights if no one recognizes them, and in particular, no one who has the power to do something about it?

                And yeah, it’s true that society may change its mind tomorrow, but until it does so explicitly, there’s no problem saying rights are being violated, because we’ve all agreed about what that means (or at least we’ve agreed to act as though we’ve agreed — some of us might just be waiting until the rest of you come around to our view).

                This isn’t nihilism. This is pragmatism, and an understanding that social reality is discursive. It’s certainly not foundationalism, and it’s not an ontotheology, but it’s not a nihilism either. There’s a yes that comes after all of the no’s, and while the yes is tentative, it’s still a yes.Report

              • Avatar Jason Kuznicki in reply to Chris says:

                JB – Does a “right” have to be moral? What I mean is, it seems obvious to me that blacks in 1850 Alabama had fewer rights than white land owners. This seems a very separate thing than saying that it was therefore moral, just and OK. Rather than nihilism, it seems it’s a recognition of conditions that should have been viewed as unacceptable.

                Saying those blacks had exactly the same rights as everyone else, but it was all on the QT, seems like having the semantics of the word “rights” do a lot of heavy and unnecessary lifting.

                There is much, much confusion in this thread, all throughout it. People are confusing “has a right” in the positive sense with “has a right” in the normative sense. Throw out that distinction, and everything you say about rights becomes stuff and nonsense. This does not, however, mean that rights are stuff and nonsense. It only means that you’ve made a confusion in your terms.

                A rights claim is a claim that some moral consideration may properly be backed up by force. Rights claims may be morally good, or not. They may also be enforced, or not. Competing rights claims exist all the time. At least some will necessarily be unenforced, as a matter of practical necessity. And at least some will be wrong, as a matter of logical necessity.

                I claim Afghan women have the right to seek education; the Taliban claims the right to forcibly deny them education.

                My argument is that an education is at worst harmless, and best it is the fulfillment of human potential. As such, I hold that education is not merely neutral, but good. Women should be allowed to pursue an education if they want one; others should be allowed to offer it. (Let’s bracket questions about compulsory education for now.)

                The Taliban’s claim is that they have the right to forcibly deny women’s education. They believe that God has dictated this right to them.

                Only one of these claims can be enforced, simply as a practical matter; and logically, only one of them can be correct.

                That women are right now forcibly denied education means that the Taliban’s rights claim (that they have the right to deny education to women) is being enforced. That doesn’t mean their claim is just, or true, or good. It just means that it’s in force.

                If instead my rights claim were to be enforced, then anyone caught attacking a school that educated girls would be forcibly punished. Note that while I would argue that this punishment is justified, the enactment of the punishment itself does not add or detract from the moral justification of the claim.

                To determine which rights claim should be enforced, we must make reference to some set of moral arguments. Mine is based, as I said, on an idea of what it means to be human, and on the fulfillment of our potential as members of our species. As a fallback, I would argue that it is apt to be less brutal than the Taliban’s, that it will enrich a society in which it is practiced, and that God’s dictates on the matter are, to say the least, disputed.

                One final note: Rights may go for years, or centuries, or even forever without being enforced. They may still have moral force to them, in that those who deny them are acting wrongly.Report

              • Avatar Tod Kelly in reply to Chris says:

                Jason – again, many thanks. Your comments here are incredibly helpful.Report

              • Avatar Chris in reply to Chris says:

                People have rights when a rights claim can be enforced. People should have rights when a rights claim has a moral argument and could potentially be enforced.Report

              • Avatar Jaybird in reply to Chris says:

                Again, what would it mean for them to have rights if no one recognizes them, and in particular, no one who has the power to do something about it?

                Did micro-organisms exist prior to 1675?

                If I may get all Bob Cheeks on us, “Metaphysics Precedes Epistemology.”

                If Rights exist, then they can be violated even if you don’t believe in them.

                This is kinda why I want to hammer out what Rights actually are (and distinguish them from, among other things, privileges extended).Report

              • Avatar Chris in reply to Chris says:

                Eh, Jay, you and I have a different metaphysics if you think rights exist prior to minds, and human minds in particular. I don’t even think they exist, in a fully developed sense, prior to civilization. Before that, you’re just getting something like proto-rights. And before that, nothing.

                I do have a question, though. Of what substance are rights composed?Report

              • Avatar Jaybird in reply to Chris says:

                It’s an emergent property tied to a handful of interactions between traits that usually get categorized as “intelligence”.

                But that’s just off the top of my head.Report

              • Avatar Chris in reply to Chris says:

                I think it’s an “emergent property” in a sense, as well, though I think it emerges from discursive relationships. So it doesn’t exist prior to those relationships, and its existence is in fact one of those relationships (actually many).Report

              • Avatar Roger in reply to Chris says:

                James,

                You write….”Only one of these claims can be enforced, simply as a practical matter; and logically, only one of them can be correct.”

                Morality and ethics are about coordinated problem solving. To the extent the Taliban and you are trying to solve different problems, you can both be correct. It is like saying either seven or eight is correct, they can’t both be. But if one of you is trying to add 3 and 4 and the other 2 and 6, you are both correct.

                I am not a moral relativist, and I agree that educating women is a great idea, but if someone else believes in exploiting others for their god, you cannot argue that they are incorrect.Report

              • Avatar Will H. in reply to Jaybird says:

                I don’t believe sustainability would be necessary for a right.
                I have a right to life, but I cannot escape death (forever).
                For whatever property I have a right to, it too will decay.Report

              • Avatar Chris in reply to Jaybird says:

                I meant to add, but once we have rights that have some material or formal effect, that is, that aren’t merely mental (the only way of enforcing them would be to remove your head, or at least render it inert, so to speak, and I suppose I have the right to think that I have lopped your head off anyway, right?), then sure, some enforcement is licensed, if not at the individual level, then at least through some proxy (like the state, or something like it).Report

              • Avatar Chris in reply to Chris says:

                Argh, this got displaced. It goes up there somewhere.Report

              • Avatar Jaybird in reply to Jaybird says:

                Does a “right” have to be moral?

                I think it makes sense to me to say that violating a Right is always immoral… but that’s why we have to hammer out what Rights are and make sure that we know what we’re talking about.

                I mean, if we’re just talking about failing (or ceasing) to extend privileges to sub-groups because, hey, society changes, then we’re obviously not talking about the same thing as, say, Torture. Assuming, of course, people have a Right to not be tortured. Maybe they don’t. Here’s a memo that explains certain circumstances.Report

              • Avatar Stillwater in reply to Jaybird says:

                I think your desire to have immutable rights isn’t inconsistent with Chris’s description of rights as being agreed upon conventions. If could be that the grounding of the agreement is so central that for all practical purposes it could be viewed as eternal. Where Chris appears to draw the line – and I do as well, for that matter – is that a right is an immutable, unanalyzable, sui generis property that inheres in individuals. That a right is apprehended, self-evident, and self-justifying.

                I’m not sure the two of you are as far apart as it appears, tho I could be wrong (your claim that rights are mind-dependent puts a bit of a wrinkle on things).Report

              • Avatar Patrick Cahalan in reply to Jaybird says:

                One can approach a point from one side of a line and one can approach the same point from the other side of the line and they need to hammer out a common ground such that the area around the point encompasses both of their respective positions.Report

              • Avatar Jaybird in reply to Jaybird says:

                I think your desire to have immutable rights isn’t inconsistent with Chris’s description of rights as being agreed upon conventions.

                His theory seems to have rights seated in “society” while mine has them seated in “the individual”. It’s a top-down vs. bottom-up difference.Report

              • Avatar Chris in reply to Jaybird says:

                Jaybird’s right, our difference is that I find rights in an agreement (a discursive agreement — I’m drawing heavily from folks like Foucault, Habermas, and Wittgenstein). I’m focused on the intersubjective (not surprising, given my background), and Jaybird the subjective (not in the pejorative sense of “relativistic” or “just perception” or whatever, but in the more formal sense). I suppose we’d tend to come up with similar rights, but there will be differences at the margins. I suspect health care will ultimately be one of those differences, precisely because of the difference in our focus.Report

              • Avatar Chris in reply to Jaybird says:

                Argh, I forgot you can’t put “Witt.genstein” (no period) in a comment without the spam filter swallowing it.Report

              • Avatar Roger in reply to Jaybird says:

                Jaybird,

                I do not understand how rights or ethics or morality make any sense for Robinson Crusoe alone on his island. All three terms concern social coordination and problem solving. They are emergent terms of individuals interacting with other individuals.

                They are indeed agreed upon conventions. Preferably they are useful conventions that enable people to achieve the lives that they seek, but they are conventions just the same.Report

              • Avatar Jaybird in reply to Jaybird says:

                I do not understand how rights or ethics or morality make any sense for Robinson Crusoe alone on his island.

                I don’t understand how, if they don’t make sense for Robinson Crusoe alone on his island, how they make any sense when Friday shows up.Report

              • Avatar Roger in reply to Jaybird says:

                Jaybird,

                For the same reason that Robinson doesn’t need traffic lights if he is the only person on the island.

                Below are excerpts from libertarian philosopher David Schmidtz on property rights:

                “The whole point of a fence is to get in the way, which sounds hard to justify. But here is another way to conceive of property: property rights are like traffic lights.  Traffic lights move traffic not so much by turning green as by turning red. Without traffic lights, we all in effect have a green light, and the result is gridlock. By contrast, a system where we in turn face red and green lights is a system that keeps us moving. It forces us to stop from time to time, but we all gain in terms of our ability to get where we want to go, because we develop mutual expectations that enable us to get where we want to go, uneventfully. Red lights can frustrate, but the game they create for us is positive-sum. We all get where we are going more quickly, more safely, and more predictably, in virtue of knowing what to expect from each other.

                Getting our traffic management system right is a matter of getting the most compact set of lights that does the job of enabling motorists to know what to expect from each other, and thereby get from point A to point B with minimal delay.

                Traffic lights hardly do anything. They sit there, blinking. Yet, without them, we are not as good at knowing what to expect, and consequently not as good at getting where we need to go while staying out of each other’s way. The same could be said of property conventions.”Report

              • Avatar Tom Van Dyke in reply to Jaybird says:

                “Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. [Edmund] Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke — Sir William Blackstone.”

                —James Wilson, Of the Natural Rights of Individuals

                Speaking of rights only in terms of [man-made] law ends the discussion. We are all Hobbesians now.

                Wilson signed the D of I and was a major framer of the Constitution. The above quote shows the American scheme of rights—unalienable—in contradistinction to even the British one, contractual, conventional.Report

              • Avatar Tom Van Dyke in reply to Jaybird says:

                Unless Robinson Crusoe gave birth to himself, we’re short-circuiting the “state of nature,” where the inquiry begins. [For some, anyway.]Report

              • Avatar Chris in reply to Jaybird says:

                I find the idea of unalienable rights absurd on its face, as my part in the conversation with Jaybird would suggest, but again I suspect this is a matter of differences in metaphysics. There is no place in my metaphysics for rights to exist without human minds, and its a short step from their to a recognition of their intersubjective grounding.Report

              • Avatar Roger in reply to Jaybird says:

                Tom,

                He can claim anything he likes. The Taliban can say women can’t read because it is an edict from the big Kahuna himself. I can say I have an unalienable right to let monkeys fly out of my butt.

                This is all just spin. The very fact that two closely related countries justified it in two different ways pretty much reveals this. They are rationalizations.

                Would someone point out to me where property rights were in the Big Bang?Report

              • Avatar Stillwater in reply to Jaybird says:

                The above quote shows the American scheme of rights—unalienable—in contradistinction to even the British one, contractual, conventional.

                That may be Tom. But we’re not debating whether the Founders founded the US on natural law and all that. Let’s agree that they did.

                We’re debating whether the idea of inherent, immutable, irreducible rights makes any sense.Report

              • Avatar Roger in reply to Jaybird says:

                Tom,

                His origins are irrelevant to the need for property rights or traffic signals once he finds himself on a remote island. Alone he has no need of either. In large groups, property rights become essential. With lots of cars, traffic signals become practical.Report

              • Avatar Stillwater in reply to Jaybird says:

                There is no place in my metaphysics for rights to exist without human minds,

                Chris, I think JB is committed to this as well. His view is that rights emerge out of human intellect. (I think that’s what he said.) The difference is that your view is that rights emerge out of social interactions between being with minds like ours, while JB’s is that rights emerge free-standing out of minds like ours independent of social interaction. Or SISTM.Report

              • Avatar Jaybird in reply to Jaybird says:

                “Without traffic lights, we all in effect have a green light, and the result is gridlock.”

                Which is odd because, in practice, we’ve got 4-way stops. Spontaneous order shows up in the weirdest places.Report

              • Avatar Jaybird in reply to Jaybird says:

                Pasting my quote in case I think I’m willing to stick with it:

                It’s an emergent property tied to a handful of interactions between traits that usually get categorized as “intelligence”.

                If we’re cool with me not limiting “intelligence” to IQ but allowing for general levels of problem solving, pattern matching, EQ, and so on, I think I’m good with sticking with that.Report

              • Avatar Will Truman in reply to Jaybird says:

                Hasn’t the “doing away with traffic lights” been tried with generally favorable results? Not everywhere, I’d imagine, but in a lot of places. It would work in more places than the number that actually lack traffic lights.Report

              • Avatar Tom Van Dyke in reply to Jaybird says:

                Roger, the point is that man is a social animal. By separating Robinson Crusoe from his origins is to miss the point of natural law, which seeks the truth of man in whole, not in traffic lights.

                Man is not a hermit, nor is Hobbes’ “state of nature” the truth about man, that without other people, we are perfectly free. We are never without people.

                I’m sorry, but I find these diversions to be terribly obtuse. Traffic lights are conventional: some intersections we don’t need them atall. They are not part of the natural law except to say it’s natural for man to adopt conventions so we don’t smash all our cars into each other.Report

              • Avatar Tod Kelly in reply to Jaybird says:

                Keeping away from the meta, I’ll weigh on on the traffic lights. Traffic lights do not create ‘random order,” they allow a greater number of cars to go through an intersection in a given period of time, especially heavy traffic times. Traffic has regular flows, and most intersections are not the meeting points of four steams of equal number of cars; traffic lights are also used to “reward” drivers during rush hour to stay on main thoroughfares and to provide disincentives for those trying to use small-street residential areas as pass throughs.

                In terms of safety, they lead to a huge reduction in accidents, injuries and deaths where they are used. They one real exception is ledger urban traffic circles, which are considerably more expensive and disruptive to install.Report

              • Avatar Roger in reply to Jaybird says:

                Patrick,

                You know, Lennon and McCartney , Albert Hall, Day in the life*.

                The problem is that they can make up anything down there. Some like turtles, some like self ownership, some like justice, some like God’s word, and they all seem to disagree on what the big guy said. I still want to know where property rights were in the big bang. Leptons, bosons and property rightons?

                *the answer is 4000Report

              • Avatar Will Truman in reply to Jaybird says:

                Tod, so what do you make of the experiments of removing traffic lights? Do you think their success has been exaggerated?

                I don’t disagree about flow, though. Particularly in places where there are going to be multiple cars coming in every direction.Report

              • Avatar Patrick Cahalan in reply to Jaybird says:

                > The problem is that they can make up
                > anything down there.

                Oh, you betcha.

                That doesn’t mean that there isn’t anything down there, though… it just means that people like to make shit up. Just because something isn’t testable doesn’t mean it isn’t so. It just means that… really… you shouldn’t be relying on it quite so much to be down there.

                > I still want to know where property rights
                > were in the big bang.

                Well, to be fair, Locke – the original property rights guy – thought that property rights came when you actually did something. So, presuming there was nobody around at the big bang, property rights were there in potentiality, but not in actuality.

                The tree is just a tree. The fruit doesn’t belong to anybody until somebody picks it, and then it’s theirs… provided they didn’t take more than would be fair.

                Locke does make that proviso. You can’t take more than is fair.Report

              • Avatar Patrick Cahalan in reply to Jaybird says:

                > It seems to me that if a right is not absolutely
                > sustainable and time independent, it’s not
                > really a right.

                Well, there’s rights and there are instantiations of those rights.

                Let’s say we all believe that everyone has a right to learn. That is, if they so choose, they can spend some of their time incorporating new information into their brain. That’s fairly non-objectionable, I would hope.

                Now of course the opportunity to learn != education != national standards != local school boards or anything else. We haven’t established a “right” to an education.

                Indeed, if there’s only me and another 500 people left after the asteroid slams into the supervolcano, we have a practical limiter: you do your share to generate foodstuffs, or you don’t get to eat. If this requires all of everyone’s time, you’ve got a right to learn all right but you certainly don’t have a right to an education.

                Now let’s say that we’re the Robot Overlords, and nobody needs to work for substance-level living. Let’s go further: let’s say that the Robots are now perfectly able to teach better than humans. The cost to make a robot is zero, because they make themselves (hey, we’re pitching far off in the future, here).

                Do you have a right to an *education*, in such a scenario?

                Is “right” the right word? I would contend that we’re using it because “privilege” and “responsibility” are both already taken, and generally people try to force something into the S={right, privilege, responsibility} set.Report

              • Avatar Roger in reply to Patrick Cahalan says:

                Patrick,

                I think the intrinsic, eternal, absolute rights argument has more holes in it than Blackburn, Lancashire.

                Rights are agreed upon social conventions that allow intelligent beings to coordinate their activities in such a way as to accomplish their goals. When conditions change as dramatically as you suggest, conventions aka rights change as well.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                > I think the intrinsic, eternal, absolute rights
                > argument has more holes in it than Blackburn,
                > Lancashire.

                The reference went past me, but I’m not unsympathetic to the underlying message.

                I think the intrinsic, eternal, absolute rights argument (vs the extrinsic, temporal, mutable rights argument) is generally speaking a wash when it comes to outcomes.

                I think the intrinsic, eternal, absolute rights argument is usually used to make a point that has nothing to do with outcomes. People use it because they need there to be something down there and they don’t like turtles all the way down.

                But semantically, I can see how it’s useful to be clear where you’re coming from (if only as a check to make sure you’re not inconsistent yourself).Report

              • I think the intrinsic, eternal, absolute rights argument (vs the extrinsic, temporal, mutable rights argument) is generally speaking a wash when it comes to outcomes

                It ain’t about outcomes.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                > It ain’t about outcomes.

                It oughtn’ not to be.

                Funny how it usually winds up coming up as a point about outcomes, though.Report

              • One of the good things about outcomes is that, if anything is measurable and/or repeatable, it’s an outcome.Report

              • Avatar Liberty60 in reply to Patrick Cahalan says:

                The holes in Blackburn, Lancashire is just about the only reference in this thread I DO get.Report

              • Avatar Will H. in reply to Jaybird says:

                That’s really the problem with this definition of rights:
                A right is an agreed upon permission.
                That’s not it at all.
                A right is independent on others.
                A right is inherent to the entity possessing it.
                What Still is talking about here are
                privileges, and those are bestowed by and can be revoked by government; such as obtaining a passport or driver’s license.Report

          • Avatar Chris in reply to Tom Van Dyke says:

            Tom, why don’t you begin, then.Report

            • Avatar Tom Van Dyke in reply to Chris says:

              I feel like Tom, now

              Don’t you hate when that happens? 😉

              Natural law as the foundation of rights has always been my reason for study, IOW, of the rights theory around America’s founding far more than Aquinas and the morality of putting which genitals where. “Vae mihi si non Thomistizavero*.” The Founding era was in the unique position of freedom from tradition and kings and Catholicism and offered as clean and blank a slate as man has ever had to re-invent his world.

              The only question was what to keep, if anything.

              I was surprised to find rightstalk went back to Aquinas and even further, to medieval canon law, 500 years before the Founding era. In fact, via the work of Brian Tierney and others, you’ll find the human dignity of woman beginning to rise in the west via marriage and divorce laws. [Roman law was the model, but the Roman patriarch was a lord and master unbound by natural law and precious few others.]

              The reason Aquinas [and the Jesuit Francisco Suarez] are missing from the narrative is of course because of the Reformation—you don’t go mentioning anything Romish. But the great Dutch Protestant jurist Hugo Grotius, who built strongly on Suarez, gets us on our way. The point of this pedantry being that the natural law tradition is equivalent to the best of all western tradition, and indeed that we intrinsically know good and evil, to do the former and avoid the latter, is formulated precisely that was by the Roman Stoic Cicero. [See above link.]

              And, in our contemporary rightstalk, who was at the spearhead? Jacques Maritain, the Thomist who was a key author of…wait for it…The UN Universal Declaration of Rights.

              So I just wanted to establish the bona fides. Natural law is not some dead end, or confined to some philosophical ghetto. It informs, if it’s not synonymous with—the best of Western civilization. The Declaration is a natural law document, Lincoln’s arguments [“I am naturally anti-slavery. If slavery is not wrong, nothing is wrong.”] can appeal only to natural law. [The UN Declaration is going awry precisely because it is losing its natural law bearings, and is becoming a shield for the rights of governments and tyrants, not man.]

              The best and strongest critique of natural law is its fuzziness, that your interpretation may be a 180 from mine, so “natural law” is a chimera for practical purposes. To which I reply that we have agreed there is a truth, an objective truth, that applies to both you and me, and for this time and for always.

              Your Mileage May Vary is not the end of the discussion all then, it’s the affirmation that we can indeed have a discussion! This is a very good thing.

              *Woe to me if I do not Thomistize.”—MaritainReport

              • Avatar Tom Van Dyke in reply to Chris says:

                Amazing, Chris: Leo Strauss’ teacher. Add Karl Barth [more Lutheran than Luther] and Heidegger [brilliant, Nazi] and those were some heady times.

                I confess to being more an historian of ideas than a theorist, less interested in what the “real” John Locke said than what the Founders thought he was saying. Cassirer and a lot of the Kantians [neo- and otherwise] seem so ineffectual to me, their effect on their times more like a brine than a broth.

                Onward Kantian Soldiers!

                In the American context–my primary interest—the continentals and Kantians and philosophes don’t mean much. Even Hume is a more a footnote than a bulwark. You’ll see the Founders cite Algernon Sidney far more. [Sidney was hanged by the king for treason in 1683, which explains why the similar John Locke published anonymously. Heh heh.]

                Here’s where he admits the principles of liberty come from “the Schoolmen,” i.e., the Scholastics, the Thomists—founded in natural law:

                SECTION 2
                The common Notions of Liberty are not from School Divines, but from Nature.

                Tho the Schoolmen were corrupt, they were neither stupid nor unlearned: They could not but see that which all men saw, nor lay more approved foundations, than, that man is naturally free; that he cannot justly be deprived of that liberty without cause, and that he doth not resign it, or any part of it, unless it be in consideration of a greater good, which he proposes to himself. But if he doth unjustly impute the invention of this to School divines, he in some measure repairs his fault in saying, This hath been fostered by all succeeding papists for good divinity: The divines of the reformed churches have entertained it, and the common people everywhere tenderly embrace it. That is to say, all Christian divines, whether reformed or unreformed, do approve it, and the people everywhere magnify it, as the height of human felicity. But Filmer and such as are like to him, being neither reformed nor unreformed Christians, nor of the people, can have no title to Christianity; and, in as much as they set themselves against that which is the height of human felicity, they declare themselves enemies to all that are concern’d in it, that is, to all mankind.Report

  20. Nob Akimoto Nob Akimoto says:

    Natural Law as noted is something of an enlightenment conceit that came about in applying reason to the concept of human nature. Natural Law stands in contrast to Positive Law (man-made law, essentially) and is used, principally to judge whether or not the positive laws in question are just according to the rational model of human nature.

    The Catholic thinkers though tend to have a more structured and precise definition which is based on Thomist philosophy and is built on a theological foundation that traces its lineage back to Thomas Aquinas. It works from the arguments presented in Summa Theologica and then builds a few hundred years of philosophical development from it. A manifestation thereof is the Theology of the Body, for example.Report

  21. Avatar Tim Kowal says:

    Natural law reasoning is philosophically rigorous work, the sort that many would eschew as pedantic or overly stuffy. It is not simply a synonym for “what God says” or some such thing. But it does force the skeptic to give up pretenses of presuppositional neutrality and to engage in earnest inquiry about what first principles he holds about the world. Even the scientist is not presuppositionally neutral. He must accept as true – without observation, and for no other reason than a commitment that we can know things about the world – that the future will resemble the past, that the world behaves according to fixed rules that mankind can discern, that objects and phenomena in the world have causal relationships with one another, and so on. Such precommitments must be conceded before any system of thought, e.g., empiricism, can do any work. Unless we are ready to concede the possibility of knowing anything, we must stipulate that reality is governed by certain rules.

    Just so in the realm of morals and justice. Thomas Paine, in his Dissertation on First Principles of Government, observed: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated. The same method ought to be observed with respect to the science of government.” When we discuss laws and government, we are really talking about justice, and in turn about morals. As Hadley Arkes wrote in First Principles, “acting morally is bound up with the exercise of giving reasons. And by ‘giving reasons,’ of course, we would not mean merely reporting on one’s motives (‘I hit him because I felt the need for excitement’), but offering justifications.” We can posit, as a precommitment necessary to an epistemology concerning justice and morality, that “the need for excitement” is on its face not a “justification.” This sort of observation is part of the foundation of natural law reasoning.

    Nor does natural law concern merely the advancement of self-interest. Law presupposes moral obligation that binds regardless of self-interest. Nor is it merely an expression of power, of might makes right. Arkes again: “To reject might makes right and insist that justifications be given presupposes the sort of creature man is.”

    Based on these sorts of observations – about commitments to what kind of creature man is, about his innate insistence on justifications for engaging in acts with moral content, etc. – we can begin to see why the natural law enjoins racial discrimination, for instance. Presupposing that man is a moral creature of necessity means he must be free to choose certain acts over another. This in turn leads us to conclude his choices render him either morally praiseworthy or blameworthy. This, again in turn, means that it is wrong to praise or blame someone on the basis of acts he was powerless to effect. As Arkes put it, “the wrongness of this racial discrimination is rooted in the very logic of morals, and therefore it must be said that racial discrimination is wrong of necessity.”

    This sort of reasoning can be applied to all sorts of moral questions. As others have said, the conclusions of natural law reasoning are not at all self-evident, even though many of the premises are. But they do require some heavy philosophical lifting that is off-putting for many.Report

  22. Avatar Tod Kelly says:

    Obviously, let the conversation continue. But a shout out to pretty much everyone for their help here in these threads. Much appreciated.

    As always, you guys rock.Report

  23. Avatar gatterD says:

    I am of the opinion that “natural law” does not exist. it could be because (even though im Wiccan) that i take a more scientific approach to the world, or it could be that Nature proves the concept of natural law incorrect. Examples of this could be the cannibalistic shrimp found recently, canines eating dead offspring, Mantis’ eating the head of their spouse. All these things are considered “evil” by human moral standerds, however it is merely nature taking its course. Humanity has no right to take the higher moral ground with events like: witch hunts, crusades, ethnic cleansing, all these things are in hindsight “evil” however they were the “higher moral ground” in the eyes of the instigators. Morality is important, however we must bear in mind that morality is a human creation and is thus, vulnerable to err’s in judgment. Surely any species that develops true sentience would eventually create a morality of their own…..i just hope they do a better job of it than we did.Report

    • Avatar Tom Van Dyke in reply to gatterD says:

      This wouldn’t be what’s meant by “natural law.” In fact, it’s where we differ from the mere beasts that is the beginning of morality and “natural law.”

      And while natural law has a metaphysics, it doesn’t deny science: man is a physical being as well as a metaphysical one. In fact much of the new research on human hardwiring serves to reinforce the idea. That an area of the brain would light up when we do good or create or cogitate is better proof of natural law than if it didn’t.Report

    • Avatar Will H. in reply to gatterD says:

      My take (and I could be mistaken) is that this view seriously negates the distinction between ‘higher’ and ‘lower’ organisms.
      If the fact that we have a spine or a protoplasm is all that we can relate to, then so much the better.
      Incest is all about getting a head start in the gene pool.
      It just reeks of positive materialism.
      If all we are is a collection of chemicals in motion, then we are no better or worse than any other collection of chemicals in motion.
      Oddly enough, setting chemicals in motion happens to be a lot of what I do, but I don’t see that as a spawning of progeny.Report

  24. Avatar Scott says:

    Funny, Rhode Island is considering a homeless bill of rights. I guess they will create more rights just like the right to have the govt provide you with a cell phone and internet.Report

  25. Avatar Shelley says:

    Love “Talk To Me Like I’m Stupid.”

    That should be the motto of all Americans who are going to vote this November based on what they’ve seen (endlessly looped) in Superpac ads.Report

  26. Avatar Roger says:

    Tom, Tod, Will and Jaybird

    Do you guys mind if I expand the thread?

    Tom I understand completely that men are social beings. We solve problems together better in total than we can solve them alone. Morals and ethics and laws and conventions/rights and traffic lights are all about how we live together. It’s about solving problems together in ways which don’t relate more problems along he way.

    Of course you don’t want to have too many signals, or lights where you could preferably have a four way stop. The same is true of rights. We need the right rights and the right number to optimize our ability to flourish together. That is what rights are for, and any metaphysical grounding is Superfluous.Report

    • Avatar Tim Kowal in reply to Roger says:

      We rely on “metaphysical grounding” in everything we do, e.g., getting “the right rights” so we can “flourish together.” I think what you are trying to say is you don’t want to talk about metaphysical grounding, which is quite a different thing. It would be like having a conversation about colors but refusing to talk about the subject of light refraction. You can still have the conversation, but you can’t pretend it’s a serious conversation.Report

      • Avatar Roger in reply to Tim Kowal says:

        Tim,

        As a painter, I frequently have very serious discussions about color, but the concept of refraction of light rarely if ever comes up. The other problem with the metaphor is that the refraction of light is a well agreed to scientific theory. Metaphysical grounding is too often just someone’s opinion. No?Report

        • Avatar Patrick Cahalan in reply to Roger says:

          COMMENT COLLISION THE THREAD WILL NOW COLLAPSE THE WAVEFORM!Report

        • Avatar Tim Kowal in reply to Roger says:

          Perhaps I’ve hit upon the wrong metaphor. (Or the right one: We don’t frequently need to talk about metaphysics when we talk laws and morals, just like painters don’t often need to talk about light refraction. But a rudimentary understanding should be there.)

          I wouldn’t say metaphysics is merely bandying opinions around. The very notion of metaphysics — a set of presuppositions necessary to make sense of reality — itself contains the standard by which we should judge any metaphysical claim. I.e., that theory is true which explains the most data. For instance, positing that man is a special part of creation entitled to dignity and respect merely by virtue of his being and not qualified by his accomplishments, potential, or lack thereof, better explains reality than other normative theories. Obviously, you can disagree with me, but it’s not simply a matter of taste.Report

          • Avatar Roger in reply to Tim Kowal says:

            Hi Tim,

            I am just being flip… Sorry.

            I certainly don’t think ethics is just a matter of taste.

            I do get the feeling though that great philosophers have spent 2500 years concocting various metaphysical groundings and complex rational justifications and have been unable to convince each other to reject their own concoction and settle on one. Seems like metaphysical masturbation to me. They should have focused on something important, like how many angels can dance on the head of a pin.

            My only ethical advice, if anyone ever asked, is to pay no heed to my ethical advice. The cool thing about my ethics is that it is the only ethics I know of that is impossible not to follow. It is logically and physically impossible to reject my ethical advice.Report

      • Avatar Patrick Cahalan in reply to Tim Kowal says:

        Well, if you’re talking about paintings, you can talk about color without getting into the physics of what wavelengths stimulate which cones in de eyeballz of de viewer.

        You can have pretty meaningful conversations without arguing about the source of the light. Heck, you can have two guys who have divergent views on where the light comes from.Report

      • Avatar Stillwater in reply to Tim Kowal says:

        Tim, I think the metaphysical grounding of rights is exactly what everyone is talking about. In particular, we’re trying to answer the question “what the hell are they?” And one account of the metaphysics of rights is that they’re justified by properties that inhere in being like and emerge as a condition on social arrangements.

        On the other side, there is the assertion that rights are immutable, irreducible, eternal, intrinsic, etc etc. But that’s not an account of the metaphysics of rights, it’s a description of some of their putative properties – ones shared by all abstract entities. So the question remains: what they hell are they? And how are they justified? And how is the proper set determined? And what intrinsic properties of them give them the force of legitimate claim, or protection by government law?

        So as far as the metaphysics goes, I think that discussion doesn’t even get off the ground for the rights advocate, since rights are self-evident and admit no analysis. From their pov, they just exist and no further explanation or account can be offered.Report

        • Very fair, Mr. Still. And yours is Rorty’s “non-foundationalism,” that we’re as a ship at sea, can’t agree on the foundation of rights, so let’s skip that part since we all agree we have them. Let’s just debate [and hopefully agree] on what they are.

          I find the position unhelpful, since I don’t think we can puzzle out these rights without a knowledge of their origin and therefore nature. But I have always saluted Richard Rorty as an honest man, that freeloading atheist.*
          _____________________
          *A self-appellation. Rorty was a good sport.

          http://www.thenewatlantis.com/publications/justice-without-foundationsReport

        • Avatar Tim Kowal in reply to Stillwater says:

          As far as natural rights go (a separate inquiry from natural law, though related), we could start from the treatment I roughly laid out for the nature of man, and then carry on that man has a right in his own person, and then, as Locke argued, that he acquires a right in property by mixing his own labor with the earth and objects in the world.Report

          • Avatar Stillwater in reply to Tim Kowal says:

            On this view, if a condition is met, the right kicks in. that is, if a person mixes their labor with the land, they have a right to the result. That gives us a condition on the correct attribution of a right, and a legitimate claim to possession of that ‘fruit’, but it doesn’t tell us what the right is. Is it a conventionally agreed upon rule? An instrumental rule justified by utility? An intrinsic property?

            It’s hard for me to see how a sufficient condition for a legitimate rights claim clarifies the proper analysis of the right in question.Report

            • Avatar Tim Kowal in reply to Stillwater says:

              The “conventionally agreed upon rule” is what we call laws or customs. At best, they are roughly based on a conception of rights. In the Lockean property rights example, I have a right in property if I mix my labor with the soil and no other person has a superior claim. The law creates a mechanism where I can record my rights and enforce and protect them. The law is a practical doctrine that does not perfectly fit the abstract moral rights that underlie it. It’s as good as we can do. This is why courts continue to apply “equitable” doctrines that override the strict application of law to more closely honor the more abstract notions of justice that animate the law in the first place. This creates great consternation among legal theorists; it’s where accusations of judicial activism come from. If our jurists are going to try to do justice in the abstract, this is all the more reason it is important to understand what it is.Report

              • Avatar Stillwater in reply to Tim Kowal says:

                I have a right in property if I mix my labor with the soil and no other person has a superior claim.

                But why? Because God said so? Because we have intrinsic properties revealed by introspection that make it so? Because we agree that this sounds like a good reason to attribute ownership to a person? Because….Report

              • Avatar Roger in reply to Stillwater says:

                Stillwater,

                Because it works well. If it didn’t there would be no reason to do it and philosophers would never have been tempted to try to create a justification for it.

                Why does it work well? Because it encourages people productively aligning their interests with the productive potential of the resources that they have claimed. It reduces friction and conflict, and incentivizes productivity. Societies that tap the potential of property rights can stimulate prosperity.Report

              • Avatar Will H. in reply to Roger says:

                I think there are two things going on with the concept of property.
                One of them is an extension of the ‘finders keepers’ rule; applies to exploitation and modification of resources. This (it seems to me) is really about the right to dispose of property; choosing exactly what terms that disposal occurs. Maintaining the property is a matter of ensuring those terms at some point in the future.
                The other thing is materialistic; the concept of property as an extension of the body. This is the one codified in the Fourth Amendment:
                The right of the people to be secure in their persons, houses, papers, and effects…

                What I find odd about all that is that both concepts are out the door when it comes to drugs.
                If you happen to be walking around with a balloon full of heroin in your butt, the cops can reach right in and grab it. They don’t have to. They know it’s going to have to come out sooner or later, but they’re not willing to wait. A person can get fisted merely on the issue of timeliness. I don’t remember seeing the Lone Ranger doing something like that.
                Before I move away from that, I just want to note that I find it very funny, the right to be secure in one’s papers, when it comes to a drug context. My understanding is that law enforcement can confiscate the papers and arrest a person for having them on their person in many states.
                Which is to say that the act of enforcement confers rights far above what the rights of property, whether as an extension of the disposal of the property or of the body itself, would imply to confer.Report

              • Avatar Roger in reply to Will H. says:

                I believe we have a natural god given right to put drugs up our butts. Where I draw the line is in putting drugs up others butts without permission.Report

              • Avatar Tim Kowal in reply to Stillwater says:

                Roger’s close, but I’d formulate it differently. Yes, it does work well, in the sense that it allows us to make more sense of our reality than any other conception. For example, I could reject any underlying metaphysic to begin with and say that everything is matter in motion. At that point, I’ve conceded the ability to know anything about the world. That worldview does not give me any knowledge about the world, and so I reject it as absurd by definition. If I instead posit, as I laid out above, that man is a special being among creation with moral significance, I start to get somewhere. I can start making intelligible claims about my moral relationships with other human beings, including rights and duties. This is at least how natural law reasoning sets out.

                I disagree with Roger’s explanation because it is materialistic rather than moral and rational. We should adopt a conception of property rights, or any other conclusion in natural law, because it comports with reason and reality, not necessarily because it produces good outcomes. If the analysis were about outcomes, we might instantly launch into a discussion of whether a planned economy devoid of individual property rights produces better outcomes, and thus there would be no such thing as a natural right to property.Report

              • Avatar James Hanley in reply to Tim Kowal says:

                I disagree with Roger’s explanation because it is materialistic rather than moral and rational.

                Unsurprisingly, probably, I agree with Roger’s explanation precisely because it is materialistic rather than moral. 😉

                However I would add that it certainly seems rational to me, and I’m not sure what the basis is for saying it’s not rational.Report

              • Avatar Tim Kowal in reply to James Hanley says:

                James,

                I don’t mean to say it’s irrational. I’m trying to stick by what I understand to be the process of natural law reasoning. I don’t think that proceeds by asking “what rule would derive the most profit to me?” Instead, it proceeds by asking, “what is the true nature of my relationship with this piece of land?” How these rules work together at a macro level is way down the road. I don’t even know if natural law reasoning can do much work at that level. Too many moving parts.Report

              • Avatar Tim Kowal in reply to James Hanley says:

                “what rule would derive the most profit to me?”

                Leave “to me” off of it. Even looking to derive wealth generally is not a proper objective in this form of reasoning, in my understanding. This is an epistemological process, not an economic one. We’re building a set of truths, not producing widgets.Report

              • Avatar James Hanley in reply to James Hanley says:

                Tim,

                I only meant to say that approached materially I think it derives from the use of reason, as all empirical analysis does. It’s not “pure reason,” to be sure, but the use of reason, as opposed to reliance on revelation, was the font of the enlightenment, from which all modern materialistic empiricism derives. So for me, at least, a line can’t be drawn between materialism and reason.

                But that’s not to say that reason and moralism are opposed. As much as I dislike moralism, there’s no doubt that much moral reasoning is an exercise in reason.Report

              • Avatar Roger in reply to James Hanley says:

                Tim,

                I value truth and widgets and long happy lives. Not sure how metaphysical thinking helps any more than it hurts. Calling it truth requires a different definition of truth than I usually use.Report

              • Avatar Roger in reply to Tim Kowal says:

                Tim,

                I really respect your views, but still am unable to “get” them. If a planned economy without property rights led to more peace, freedom, well being and prosperity I would say “sign me up”. Can you onvince me that this natural tight isn’t just a fiction?Report

              • Avatar Tim Kowal in reply to Roger says:

                The short answer is that, under natural law reasoning, the touchstone is human flourishing. One would have to make the case that the planned economy is better suited to that end. However, that’s really an ad hoc question that I don’t think would yield a very meaningful answer. Instead, we would have to proceed step by step through the constituent components of the planned economy and answer whether each comports with natural law reasoning, keeping in mind that the end cannot justify the means! Most obviously, to get the “freedom” a planned economy provides, we must give up the freedom that exists independent of the state. What sorts of moves, logically speaking, must we make to strip others of one kind of freedom to give them another if they don’t want it? I submit this is a serious problem if you mean to proceed by natural law thinking to justify a planned economy.Report

              • Avatar Roger in reply to Roger says:

                Tim,

                Thanks. I think one area of difference between us is that you are stressing rational models, and I prefer the algorithm of reality. In other words, I believe Adam Smith described and explained something that had emerged around him, he didn’t rationally invent free markets. By explaining and identifying them, he allowed us to learn and to change the future to be more prosperous.

                I guess what I am saying is that complex decentralized search algorithms — such as evolution and markets — are smarter than rationality in many ways.

                I too believe we should pursue human flourishing. I start with what has worked though –and try to explain it — not with abstract notions of truth. Does this make any sense?Report

              • Avatar Tim Kowal in reply to Roger says:

                Roger,

                Sure. We were discussing how natural law reasoning proceeds, not necessarily whether it is better than other ways of reasoning about law and morality.Report

              • Avatar Tom Van Dyke in reply to Tim Kowal says:

                If I instead posit, as I laid out above, that man is a special being among creation with moral significance, I start to get somewhere. I can start making intelligible claims about my moral relationships with other human beings, including rights and duties. This is at least how natural law reasoning sets out.

                Yah, Tim, and this is a way to entertain the thought of a “natural law” without accepting it—which would be the mark of an educated mind.

                Nature—the realm of the beasts—has no morality, hence no immorality: Fish gotta swim, tigers eat their young. And as for being a male preying mantis, well, fuck that. Sex isn’t everything.

                BTW, Edward Feser, an excellent paleo-Thomist [as opposed to the neo-Thomists, whom Leo Strauss respected less even while rejecting both], on natural law and property rights:

                http://edwardfeser.blogspot.com/2012/03/natural-law-and-right-to-private.html

                As I’m not quite the materialist, the property stuff has never been a priority. And I would caution going too deep into the “real” Locke on his Labor Theory of Value. It never had wings, not with the Founders, not anywheres, really.

                [Haven’t studied it deeply. Seems to me a provisional objection to Britain and primogeniture and nobles owning all the land, and dispossessing the Native Americans because they neither toiled nor spun nor worked the land.]

                [The “real” Locke doesn’t do much for me. IMO, he’s valuable mostly because of his influence, and more for how he was appropriated by the nascent american nation than for what he actually said or thought.

                As noted above, as more an historian than a philosopher, I find the history of ideas more interesting than the ideas themselves.]

                [And don’t you hate “an” historian? Per Izzard, “historian” has a fucking aitch in it.]Report

              • Avatar Tim Kowal in reply to Tom Van Dyke says:

                Tom,

                Good Feser link, thanks. As much as I enjoy moral philosophy, I don’t read any, or much. Think I’ll try to start.

                I’m big on the transcendental argument. Insist on pure empiricism and you’re stuck in the Matrix, or Descartes’ brain in the vat. Hume teed it up nicely; awfully nice of him, being atheist and all.

                I’m with you on Locke. I threw the labor theory out as an example because it’s the theory I know.

                “An historian” always takes me out of whatever it is I was reading and wonder on whether I’ve been pronouncing historian wrong all this time. “Istorian? Isss-torian?”Report

              • Avatar Roger in reply to Tim Kowal says:

                Tim,

                I guess I think that humans do have a sense of justice and fairness and good outcomes. Judges do influence laws based upon these things, as well as the stories they convince themselves of on metaphysical groundings. These come and go and change over time, and law evolves. To the extent that they decide wisely we prosper. I think we would prosper better if they didn’t tell stories to themselves, but I could be wrong on this point.

                The reason I add this last point is that rules seem to work better if people convince themselves that they are sacred.Report

    • Avatar Roger in reply to Roger says:

      Tom,

      You wrote: “I’m sorry, but I find these diversions to be terribly obtuse.  Traffic lights are conventional: some intersections we don’t need them atall.  They are not part of the natural law except to say it’s natural for man to adopt conventions so we don’t smash all our cars into each other.”

      To libertarian philosophers such as Scmidtz and Hazlitt, human rights are indeed conventions to keep us from smashing into each other. We have defined property rights because it encourages us to productively preserve and improve them and because it avoids destructive conflict. It aligns costs and rewards and gives control to the person most capable of acting productively.Report

    • Avatar Tom Van Dyke in reply to Roger says:

      Well, Rog, it gets even more expansive than that. As we speak of man’s nature, as social animals, we do have a duty to each other in some form. And of course, there is the problem of children, without which the species doesn’t survive, and more importantly work their little fingers to the bone to support me in my Social Security and Medicareage while I blow their birthright on Buicks and Bahamian cruises.

      On the meta, the discussion isn’t being expanded, it’s being whittled down to materialism and legalism, that a nation is no more than the sum of its laws.

      But in the view of natural law, which seeks the truth of the whole, this is the training wheels part of ethics and justice, mere reciprocation. What’s interesting is when Jaybird posits for “liberty” as though it’s some self-evident good.

      Why? It sure does make a mess.Report

      • Avatar Jaybird in reply to Tom Van Dyke says:

        For one thing, messes tend to be more sustainable than order tends to be.Report

      • Avatar Roger in reply to Tom Van Dyke says:

        Tom, I agree people try to make it more expansive. I suspect they are making it all up. They are just spinning tales that they have fallen for themselves.

        Duties are social conventions too. Poorly designed ones lead to bad results, good ones tend to lead to good results. Our duty to our children is a great example. If parents weren’t obliged to care for their kids, we would have a mess.

        I believe our nation is the emergent sum of our people, our ideas, our institutions, our protocols, our procedures and our things. Some of the ideas are make believe, but make believe ones matter too.Report

        • Avatar Tom Van Dyke in reply to Roger says:

          Well, Roger, now we’re zooming our macro back out, which “natural law” discussion requires. For the purposes of this forum, I do not necessarily argue natural law even exists—only that whether it’s myth or cosmic reality, it got us this far, not all the “professional” philosophy that is thrown at the interior walls of the ivory tower [like so much spaghetti, to see what sticks].

          I’m confident that Aquinas and Locke and Hamilton and James Wilson have much to do with our lives as we know them. Kant and Nozick and the other dozen names tossed to & fro here, not so much.

          You write;

          Duties are social conventions too. Poorly designed ones lead to bad results, good ones tend to lead to good results. Our duty to our children is a great example. If parents weren’t obliged to care for their kids, we would have a mess.

          I submit we do, precisely because we have abandoned natural law [or ecclesiastical law as holding the primary hegemony upon society/culture, and indeed therefore the individual] and have used the power of law to destroy that culture, reorienting society from child-based [natural law] to adult-based [libertarian].

          I realize that’s pretty dense prose; it’s a comments section. But this “conservative” has revealed two things: first the “conservative truth” that it’s about culture [Moynihan] and second, a bit of a nod toward what we call liberalism—as communitarianism. It was something I picked up from Vattel, whom all the Founders had read but is seldom quoted directly, that we are social animals and we do have some real duty to our family, neighbors, town, country, etc.—community.

          Just a little nod and a wink to the uncareless reader, that TVD has quite the “liberal” streak in him, no Randian he.Report

          • Avatar Roger in reply to Tom Van Dyke says:

            Tom,

            And once again we are in agreement. I think you stated your position quite convincingly. Even if it was a myth (and I cannot prove that it was) it got us this far and myths are really, really important.Report

            • Avatar Rod in reply to Roger says:

              Useful fiction. And it wouldn’t be the only one. Take “free will,” for instance. Now maybe it’s just a case of the machine attempting to understand itself, but just like “rights” and “natural law” it’s a hell of a slippery thing to wrap your head around. From a materialistic, scientific, world-view there’s no reason to believe it exists. And dualism doesn’t get you much further; it just introduces another mysterious, unexplainable, entity.

              But it sure seems like we are conscious and making decisions, right? Not so fast! Experiments with fMRI machines as well as some brain damaged patients seem to show pretty conclusively that our brains subconsciously “choose” things for us, whatever part of our brain makes us conscious finds out about it a few seconds later, and then just makes up a story to explain why we made the choice.

              Now if that’s true — and it sure seems to be — that would play hell with notions of responsibility, desert, and criminal culpability. And I don’t even want to get started on the folks that believe the only reason for being moral is so God doesn’t spank you in hell for eternity if you’re bad. But we still need to lock up murderers, if for no other reason, just to protect ourselves from human predators, so we really need to believe in free will and desert and all. (The scientists involved in the study even said as much in the published paper.)

              Which all may mean that ultimately we’re asking the wrong question. Instead of arguing over whether things like free will and rights and natural law really exists and in what way, etc., we should really be asking things like: Why do we believe in these things? Why do we want to believe in these things? Is it useful to act as if these things exist even if they don’t, in actuality, exist?Report

  27. Avatar Roger says:

    Jaybird,

    Do you mind if I ask what problems you have with utilitarianism? I’ve tried to follow all the threads, but I can’t piece your concerns together in a comprehensive way.

    By the way, I am not a utilitarian.Report

    • Avatar Jaybird in reply to Roger says:

      Two problems, one is personal.

      1) Were I a utilitarian, I would probably be a technocrat.

      2) Who gets to decide which outcome is better? What about second-order outcomes? Third-order outcomes? Have you ever noticed that when a utilitarian encounters a huge unintended consequence, they immediately point out their intentions? (And so on.)Report

      • Avatar Murali in reply to Jaybird says:

        1) Were I a utilitarian, I would probably be a technocrat.

        Which is not a bad thing to be. Technocrats nowadays tend to be more libertarian than the general populace.

        Who gets to decide which outcome is better? What about second-order outcomes? Third-order outcomes?

        This is a genuine problem for consequentialists especially act consequentialists. Rule consequentialism can mitigate this because certain kinds of consequences are stable and predictable (at least relatively so). It is also relatively easier to identify which order conequences will dominate (not the least because it is not just a one off act which may exist in some kind of context, but because it is a rule that persists across many situations, which might be approximated, avergaged etc into some set of general variables.)

        Have you ever noticed that when a utilitarian encounters a huge unintended consequence, they immediately point out their intentions? (And so on.)

        Actually, no. Even if lots of actual utilitarians do this, this is inconsistent with their utilitarianism. The mere fact that it is human nature to discount unintended consequences doesn’t mean an actual philosophy which is explicitly aimed at accounting for all consequences does so as well.Report

        • Avatar Patrick Cahalan in reply to Murali says:

          > Actually, no. Even if lots of actual utilitarians do
          > this, this is inconsistent with their utilitarianism.
          > The mere fact that it is human nature to discount
          > unintended consequences doesn’t mean an
          > actual philosophy which is explicitly aimed at
          > accounting for all consequences does so as well.

          This is one of those “rubber and road” problems.Report

      • Avatar Roger in reply to Jaybird says:

        Jaybird,

        I don’t think I have ever met anybody who actually acted like a utilitarian. As I mentioned, I am sure I am not one.

        I think most people are interested in a circle of things they care about. What differs is the size of the circle. Most of us care a lot about our selves and our family, a little for our neighbors and associates and then it starts dropping quickly. My guess is the Dalai Lama has a very wide circle, Donald Trump a narrow circle.

        Where I agree with utilitarians is not that people should be one, again I think this is silly, it is that rule utilitarians (as Murali points out) seem to do the best job of concocting rules and institutions that lead to the rest of us flourishing despite the differing size and center points of our little circles.

        A good institutional set of rules and “rights” can lead to a world where the altruist, the egoist and the utilitarian all achieve optimal results. The explanation for how it is possible is of course that the world can be positive or negative sum. By coordinating activities so that they are voluntary among rational adults, we can create an endless cycle of self amplifying win win interactions. If the rules are right the altruist and the egoist become one. The best path for myself is the best path for everyone else too.

        In other words, even though I am not a utilitarian, if I was creating a new society I would want rule utilitarians drafting my constitution.Report