There are some subjects that can't be boiled down to ten easy lessons, or a couple of thousand words. Natural Law is one such, which is why I've maundered over the topic at such length. I was resolved not to write further about it until I'd arrived at a compact statement about the why of Natural Law: that is, why I consider it a real thing worthy of extended thought.
Surprise! Here I am with exactly that. I hope you've all had enough coffee for what follows.
A comment I posted to the previous essay in this series proved to be the key to the matter:
One of the most intriguing questions in epistemology is at what point it begins to become valid to say "law" where we previously said "trend." The former has an imperative connotation while the latter does not, yet both are about patterns that hint at cause-and-effect relationships, which is what all quests for knowledge are ultimately about.
Since Natural Law, if it exists, is self-enforcing by definition, the best test of its existence lies in the consistency (or lack thereof) of consequences for ignoring or violating it.
Now, as Tom Kratman has noted, we cannot infer the existence of a self-enforcing Natural Law from individual cases:
The problem therein, though, Fran, is that the escape of miscreants from justice, widely seen and widely known, literally demoralizes that grand sweep of population, such that it becomes every man for himself...except for the decent ones who rise above that with, "every man for his own family."
Individualized justice of the sort a code of laws and a system of jurisprudence seeks has the unfortunate properties of being:
- Fallible;
- Corruptible.
There's no way to create a justice system that lacks those properties. That's not an argument for failing to try, of course; it merely notes the specific threats against which such a system must be buttressed, always in cognizance that there's no perfect barrier against such things.
Tom's observation about "the escape of miscreants from justice" is absolutely correct -- for certain magnitudes of such escapes. A given society will possess a threshold percentage of errors and corruptions at which the good folks will lose faith in the justice system. Sadly, that percentage is unknowable before it's been exceeded. If and when it is exceeded, Tom's statement of the consequences:
...it becomes every man for himself...except for the decent ones who rise above that with, "every man for his own family."
...operates with great destructive power.
This isn't a new observation, of course:
"The tale of my interrupted trial will spread through the galaxy. Frustration of my plans to lighten the disaster will convince people that the future holds no promise to them. Already they recall the lives of their grandfathers with envy. They will see that political revolutions and trade stagnations will increase. The feeling will pervade the galaxy that only what a man can grasp for himself at that moment will be of any account. Ambitious men will not wait and unscrupulous men will not hang back. By their every action they will hasten the decay of the worlds."
You might feel free to dismiss my opinions, but dare you dismiss those of Hari Seldon?
A justice system of some sort is inevitable. Indeed, the vigilance committees of the 19th Century West, so badly maligned by orthodox historians, were scrupulous about formalizing and regularizing their operations, to the point where they rose to command far more public trust than the "official" ones. But an injustice system operating under the guise of justice will provoke the very processes Tom (and Hari Seldon) foresaw.
The perception of intolerable injustice operates on societies through Natural Law.
There are two paths, categorically speaking, that a society can take when it has lost faith in its justice system -- that is, in its State:
- It can Balkanize;
- It can replace the State through a political revolution.
(Balkanization can be a precursor to the "every man for himself" and "every man for his family" atomizations that can occur if the smaller, breakaway units cannot win the trust of those who dwell in them.)
Our allegiance to the abstract principles of justice we in the West have followed since the Enlightenment is conditional upon their observance by the State. When the State loses our faith, it takes that allegiance with it, and one of the two paths becomes inevitable. Note that this does not always occasion the actual fall of the State; indeed, it often manifests itself in subtle yet critical ways, such as the expansion of the "underground economy" and the pervasive unwillingness among private persons to cooperate with the police or the courts in any way.
Natural Law dictates this outcome, because it is our nature as men to seek to survive and prosper. A State -- an institution that possesses the privilege of the pre-indemnified use of force against persons and property -- that perpetrates injustice undermines the conditions required for survival and prosperity, and therefore contradicts human nature.
When the most powerful entity among us is seen as a source of injustice, we abandon the notion of public justice disinterestedly administered by public servants and revert to the law of the jungle. It's all the same whether we overthrow Leviathan or "go underground."
Natural Law, as I observed in the previous essay, operates on societies, and over broad sweeps of time. It arises from human nature: the ways in which we are all alike. It cannot and does not "address" individual cases, for as individuals we are all different -- which is part of the "problem."
There are those who dispute the assertion that Man, or any other species, has an enduring nature. They point to outliers -- coma patients; severe idiots; the insane -- and ask what those cases imply for the notion of human nature. The argument is not to be dismissed out of hand. The only way to determine whether human nature is real and important is to observe Man's societies over long intervals, and compare their evolution to the patterns suggested by the Natural Law thesis:
- Do societies in which the public system of justice earns and retains the trust of the people tend to cohere and prosper?
- Do societies in which the public system of "justice" is actually a front for corruption and privilege tend to fragment under individuals' and families' desires to survive and prosper?
For this, at least, is indisputable:
To reach either conclusion requires extensive study and reflection, to which I now leave you all.
Was just having a discussion on FB with a (not entirely unattractive) Pirate Bay chick who is also an MEP (Member of the European Parliament). Here's something that might approach (if not quite reach) natural law, albeit in the context of statutory law: Fair Use. There will always be some kind of naturally occurring fair use, because the costs of suing over, say, a student paper that mentions and idea, and the risks involved in hiring a hit man, are both just too great.
ReplyDeleteInteresting! Ronald Coase would probably have something to say about it. (Transaction costs are the one thing Coase's Theorem can't cope with.)
ReplyDeleteKratman, regarding your contention that there are no such thing as 'natural rights', I think your problem here is caused by confusion regarding the term 'rights'. They would be more accurately referred to as 'prerequisites'. The reason why is that human psychology is *not* infinitely variable, and biology is even less so. Certain actions will have certain consequences, and if you happen to want certain consequences, then you must *first* engage in certain actions.
ReplyDeleteFor instance, if you want a society in which conditions A,B, and C are true, then it will most likely be necessary for at least MOST people, as a *prerequisite* to agree to agree to X, Y, and Z. Case in point, if you want a society where you can live and not have to worry about random strangers killing you in the street, then it is FIRST necessary, as a prerequisite, for at least most of the people in a society to agree to various things, such as that they, themselves, will not go around randomly killing people in the street, and that they will punish those people who do go about randomly killing people in the street. This prerequisite is what is referred to as a 'right to life'.
The fact that psychology and biology are not infinitely variable (since some variations lead to death of the individual or society) is what is behind the concept of 'natural law'. People who for whatever reason, be it defective genes, or insanity, decide that they will simply, passively allow others to kill them, tend not to reproduce too well, and thereby do not pass on their defective mental state or genes to the next generation.
I suppose there could (as a very remote possibility) be a hypothetical society of psychotics who would mutually agree that everyone should be allowed to randomly kill everyone else in the street, but I would not expect them to accomplish much else beyond constant killing and self defense, and would in the long run be wiped out by some other society that was more cooperative and less murderous.
Tom, the fact that what people call 'rights', are, in fact, simply prerequisites which they must first agree to, in order to have other conditions which they desire be (subsequently) true, also deals with your objection that if there were such a thing as 'natural law' then it would not be possible to break that law. It is certainly possible for an individual or even an entire society to decide to disregard or violate certain prerequisites. However, what is NOT possible, is for them to escape the consequences if they do.
ReplyDeleteTo use an analogy from Newton, your claiming that there is no such thing as 'natural law, because people are able to commit murder, is rather like claiming that there is no such thing as gravity, because people are able to throw themselves off cliffs. However, the laws of physics exist, and like the laws of psychology and biology, are not infinitely variable to satisfy irrational whims.
You can certainly throw yourself off a cliff. However, you cannot escape the consequence of going 'splat' at the bottom, if the cliff is more than about 20 feet high. Likewise, a society can certainly decide that it will allow some people to get away with killing other people. However, what it CAN'T do is escape various unpleasant consequences to making that decision.