Some musings on Natural Law

[malthaussen]

Natural Law is concerned with human rights, the "unalienable" rights Mr Jefferson wrote about in the preamble to the Declaration of Independence. (Yeah, he meant "inalienable," but I guess quills are as subject to typos and spell-checkers as keyboards) This means, in Natural Law terms, that one possesses these rights by virtue of being human, and that they cannot be taken away or given away.

Those rights are enumerated in the Declaration as "Life, Liberty and the Pursuit of Happiness." In the writings on Natural Law leading up to the Declaration, a trinity of rights had emerged as foundational: Life, Liberty, and Property. Mr Jefferson was squeamish about including the last-named, so he essentially came up with "Pursuit of Happiness" to stand in the place of Property. Francis Hutcheson, whom Mr Jefferson may have read, had added a few to the canon in his lengthy work A System of Moral Philosophy, among which is the "right to one's own conscience," which pertains to more than just freedom of worship. Popular blogger Jim Wright has boiled them all down to the right of self-determination, which arguably covers all the bases.

The unfortunate thing is that there really are no "inalienable rights" in society, as the State may freely deprive a member of the society, or a group of people, of their rights whenever it deems it expedient. Now, we can try some subtle sophistry to claim that taking away the exercise of a right is not the same thing as taking away the right, but when the State has chopped off your head, it is inane to argue that you still retain your right to life. Accordingly, it is often argued that in practice, rights are an agreement or compact among the members of a society, and may be "granted" or "withheld" by the State (and possibly enshrined in a written Constitution). Which leads me, at least, to a question: if Natural Rights are a pleasant fiction, on what grounds may an individual or group petition the State for enjoyment of rights they have hitherto been unable to enjoy?

Legally, there's no problem here: standing in court can be established if the petitioner can demonstrate actual harm is being done him. But the State has an out: they can claim that some overriding social utility justifies the denial of rights, in that either a) society benefits from such deprivation to greater value than the damage sustained, or b) that some harm will accrue to the State if the right is extended to the petitioner, greater than the advantage the petitioner will receive from free possession and exercise of the right. These are, essentially, utilitarian arguments: the greatest good of the greatest number directs the ruling. Now, if the petitioner can show that either a) or b) above is false, then he should win his case and be "granted" the right for which he has petitioned.

But utilitarianism can lead us down some very nasty rabbit holes indeed. It can tell us that unproductive members of the State, who are in fact a drain on resources and energy to the point that they cause net damage to the productive members of the State, should be liquidated; and it can be arbitrarily summoned to justify the denial of Life, Liberty, Property, Pursuit of Happiness, or anything the State damned well pleases. Further, it could be evoked to justify laws forbidding citizens to do anything to themselves that the State deems harmful, for example drinking, drugs, smoking etc -- which may not be "rights," but surely are a vital part of one's right to define himself, or go to hell in his own way.

So, if Natural Law is a fiction, and utilitarianism is not a reasonable grounds for "granting" a right to an oppressed individual or group, what are the grounds by which the rights enumerated in the Declaration can be assured to all members of the State?

Wish I had the answer to that.

-- Mal

[CanSocDem]

1. We dealt with this in Canada a while back.

Required a new constitution with a charter of 'inalienable' rights but it did the job. However, I know how you people are with your Constitution so I'm sure this isn't the answer.

Our charter of rights had these:


Fundamental freedoms including namely freedom of conscience, freedom of
religion, freedom of thought, freedom of belief, freedom of expression, freedom
of the press, freedom of peaceful assembly and freedom of association.
Democratic rights such as the right to participate in political activities, right to
vote and the right to a democratic form of government.
Right to life, liberty and security of person.
Right to legal counsel
Right from unreasonable search and seizure
English and French are official languages
Minority language education rights
Right to enter or leave Canada, and right to take up residency in any province

to replace the existing "Bill of Rights" that was this:

Freedom of speech
Freedom of religion
Some but limited equality rights
Right to life, liberty and security of person
Right to legal counsel
Property rights

A big improvement, yes?

[malthaussen]

2. Many modern constitutions are better than the US constitution on this...

... South Africa's comes to mind, also. Well, the US Constitution was the prototype of a written, legal instrument to secure rights, one wouldn't expect a Model T to match well against a 2018 Mustang.

There are states that have called for a Constitutional Convention here in the US to re-write the document. (Which is perfectly legal and called for in the very text) I'll let you savor the horror that would come if a bunch of Tea Party freaks gained control of such a Convention and produced their own document. Fortunately, they are far short of the requisite percentage of state legislatures to convene such a zoo.

-- Mal