Natural Law, Rights, and the USA's Social Contract

Do you have a question or is this just an invitation to read everything you've ever written and to discuss it, with the enticement that we won't be disappointed with the contents because your esteemed father was duly impressed? If that's the gist, I'll pass, although if you highlight some salient points, I (and others, I suspect), might engage.

I scanned through the first link and it honestly just reads like a brief historical account of various positions throughout philosophy. I do not know what your theory is. As Hanover stated, we need something more specific.

Well, this started with a debate on another forum as to whether natural law exists at all. I read quite a bit of hostile and mostly ignorant remarks on it, and with continued criticism it got longer and longer until it reached its current length. There's a few bits I know are slightly off, but on the whole I think it is done, and ready for making as a book, and as no one else has contributions, I will publish it by myself.

I do find it ironic that we exist in a country which invokes natural rights on a daily basis throughout its culture, but there is hardly more than one paragraph of this I have ever seen written by any one person alive now on what natural rights actually are.

Reply to ernestmLike I said, your post, regardless of where it came from, isn't going to result in any response in the form you've presented it. You're going to need to state your position and see where it goes. Otherwise, you're just going to be frustrated that no one is responding.

Well, it took 60,000 words for me to state my position. Apologies that is beyond your interest.

Reply to ernestm

If you'd have actually read Aristotle, you'd know that that's because that's a form of phronesis, and can't be taught, or imparted dialectically, and so there isn't much to be said. It's all to be done.

Aristotle isnt really my specialty, I just understand the ancient Greeks better than most. Thank you for the thought.

So anyway, what I did today was finalize the first paragraph of the book, which as you request, ends with a question.

To understand law, we must start with the first principles of law: we are mortal, we require food and water, we require families, and we require shelter for ourselves and our families. Those are the laws of nature which define the human condition. We cannot escape the human condition. No human can change those facts through our own faculty of reason alone. They are the necessary preconditions on which Hobbes defined the modern social contract, and the necessary preconditions of the Lockean social contract we currently enjoy. Unfortunately, when Thomas Aquinas first stated this some 10 centuries ago in the Western culture we know now, he called it 'divine law.' since then many have attempted to remove the divinity, and in the process, removed the precondition of natural law itself. Many have attempted to define morality and ethics via reason alone, as if we exist in some eternal, immortal state. Many have tried. All have failed.
Law cannot be considered in isolation from the human condition. Some consider the condition divine, and some object to that. In my opinion, the necessity of God's existence, or not, is rather a red herring that has persistently clouded the judgment of many much better minds for a millennium. As we have no choice in the human condition, It is a reasonable inference that we have equally no choice in our ability to reason that which is right and wrong. That is a state which Thomas Aquinas referred to as 'promulgation of the divine law' some 10 centuries ago. It remains a reasonable inference. One may disagree with the inference. One cannot disagree with the human condition.
The first formal statement promulgating 'human law' from 'natural law' was actually in the codices of Justinian, in the 6th century AD, which were themselves based on Cicero, which in turn was based on the Socratic social contract, recorded by Plato some 2400 years ago. Justinian created a division of philosophers and lawyers to create the first unified legal code. One of its most famous examples happens to be, bees.
If you keep a beehive, and a bee stings a neighbor, are you responsible? The answer is no. The bee is following the law of nature, and like uncaged birds, their flight is beyond human control. The laws of nature take precedence over all other law, bees are necessary for pollination, and so, a beekeeper is not responsible for others being stung by bees.
Perhaps this was too much sanity for the world to endure. During subsequent oppression of reason during the Dark Ages, the laws of Justinian were lost, and only eventually found again in the 16th century.
And even now, due to law cases about bee stings, I am not allowed to keep bees where I live now, and due to disease and blights, many bee species are going extinct--from which perspective, the rationality of humankind is in fact going backwards in more ways than the majority, who are not educated with the thoughts of Cicero and Justinian, are aware.
Is it actually possible to reverse the trend, and to place the learning of those who have struggled with such questions for three millennia now above the shoot-from-the-hip backlash of common-sense? Or has our respect for actual thought so far degraded that society is doomed to live forever in a world of 144-character insults taking place of wiser leadership?

Quoting ernestm

we require families

If life is forced and no one can ever sign the contract, where does the justification of being in a contract lie? In the fact that one did not commit suicide or become a hermit, does one choose to continue in the contract, or is this a false dichotomy due to the fact that even this choice was forced? I am just trying to provide some debate material here and make this a discussion.

Also, at what point does the social contract just become a perpetuation of a system with no justification? Why are we surviving to survive via institutions? What is the point of it in the first place? Must we maintain and perpetuate society, Being, the species, and so forth, or is this something that we tell ourselves because it is scary to think of non-existence/non-being?

Well, you seem to be trying to cover a lot of ground. I'm uncertain where to begin.

The ancient Greek philosophers, alas, were not lawyers--or perhaps more accurately were not jurists. That is to say, they for the most part never were concerned with and didn't seem to have any practical encounters with the law as an operating system, with the possible exception of Socrates, and that didn't end well. That lack of experience with the practical application of the law resulted (I think) in such horrors as Plato's Republic. I don't think we see much in the way of thought regarding the law as it actually applies (rather than in the abstract) until the Romans came along.

Roman law was quite sophisticated centuries before the time of Justinian (an emperor who I believe thought very little about the law or anything but himself but was fortunate to have a wife who thought for him and able generals to fight for him), and in many respects had been committed to writing long before the Corpus Juris Civilis was put together, from the time of The Twelve Tablets onward. Jurists like Ulpian wrote extensively regarding the law and were consulted when decisions were rendered. Decisions of magistrates and praetors at various levels were available for consideration, as case law is today.

The Stoic dictum that we should live according to nature greatly influenced Roman law, and did so since republican times, but I doubt any Roman would claim that law was necessarily based on divine edict, or derived from anything resembling the modern conception of a "social contract." The Romans were aware that certain laws were contrary to nature (which is how Ulpian described slavery), but they were laws regardless. Cicero the advocate, the lawyer, was different from Cicero the jurist, the philosopher.

The law was, and is, a vast system which exists and operates apart from morality and, I think, shouldn't be confused with morality.

Reply to schopenhauer1 quite a lot of people say that. So I assume you already know the standard answers. It's not as if you have any particularly unusual misconceptions that you go on about at great length.

Reply to Ciceronianus the White that is a very thoughtful ansewr thank you. You are not the only to say it today, so I have not written clearly enough on the point I was trying to make that Justinian's was the first formal SYSTEM based on natural law. While the 12 tables were an admirable achievement in mostly barbaric times, they were simply a list of rules, and not a SYSTEM.

Then you actually repeat exactly the misconception I was trying to address, ironically. I didnt say the laws are divine edict. I simply said they must be based on the human condition. Also, when I state the Jeffersonian contract is theistic, I get similar complaints. I started to realize this is rather a major misconstrual in the current world, so I wrote this preface, and apparently it is still not long enough.

So now, it occurs to me that there isa real reason why Justinian's codices disappeared, and it really was too much rationality for the world to bear. When one bases a legal system on such a simple premise, it leads to deductions which are rather obvious, but contrary to that which many people want. Subsequent rulers did not want their edicts so confined by anything so mundane as simple rationality. So the codices conveniently vanished. And the condition persists.

Consider for example, the first statement regarding natural law in Justinian: that marriage is part of natural law because it is how we raise children. In the modern world, this would have two implications.

First, there is the frequently cited case of two people of the same sex falling in love and wanting to raise children together. By all precepts of reason, if they are raising adopted children together, they are married, and the sex of the partners is not really important.

Second, the real reason for the confusion regarding marriage is even more mundane: taxes. People want to claim tax deductions because they are married. By any rationality, the tax deductions should only occur if the wife is pregnant or the couple is raising children. That is the logical consequence of basing law on the actual human condition, rather than some abstracted morality or concept of emotional bond. But that now has sadly become almost impossible to change in the modern world, and we are stuck with mistakes of prior generations. Philosophically, historical precedence creates what is now called 'legislative law,' and it is nothing new. It was referred to as 'laws of customs' or 'laws of traditions' in Justinian's time, a distinction first spelled out in Cicero.

Conflicts between tradition and rationality persist to the current day, even in constitutional law. When the founding fathers wrote the bill of rights, there was much fear of slave rebellion, so one of the rights was for all citizens to bear arms. It was reasoned that this was a necessary protection of freedom. In the current world, this '2nd amendment' right to bear muskets against slave rebellion has resulted in massive profits for the gun manufacturing industry. It lobbies the USA government with the most horrific distortions of fact to justify the continued sale of modern weapons, of the most lethal kind they can attain, even to people who are mentally ill. The historical problem is that it is very difficult to remove a freedom, pragmatically, once it has been granted to the public, no matter how ridiculous the situation was that led to the freedom being granted has now become.

Reply to ernestm Well, Justinian's Code was, as it were, resurrected during the High Middle Ages, and still influences the civil law jurisdictions of Europe, as modified sometimes by the Napoleonic Code. So I don't think Roman law has vanished to quite the degree you think it has.

As for marriage, it's treated in most American jurisdictions as similar to a partnership, subject to dissolution on the same basis when it comes to assets of the marriage. Secular law governs them regardless of the religions to which the partners may belong.

i again have to point out that I am not particularly concerned with distinctions of secular and divine law. It seems I cant say that often enough. I merely state that law must be based on the human condition. Maybe this is some kind of genuinely original thought now, although I cant imagine how that could be really possible given how many thousands of years the topic has been discussed.

It's tru that Justinian did influence later thought, but it wasnt because people thought, ahah, Justinian had a point. By that time, Aquinas had already restated the views of Averroes and other Islamic philosophers in Christian terms, which then made Justinian's ideas acceptable again.

Quoting ernestm

To understand law, we must start with the first principles of law: we are mortal, we require food and water, we require families, and we require shelter for ourselves and our families. Those are the laws of nature which define the human condition. We cannot escape the human condition. No human can change those facts through our own faculty of reason alone.

I do not agree with your premise, that law should be based in the human condition. I think that law should be based in morality. And from the perspective of morality, these things which you designate as "the human condition", are viewed from the question of "why?", "for what reason?". Why do we require food and water, why do we require families, and why shelter?. It is by validating the reason for these things that we justify their position as fundamental. Otherwise, it's just an arbitrary assertion.

Yes, I am aware you think that, and I will look forward to discussing it further with you after you grow up.

Reply to ernestm Afraid to face the truth now?

'The truth' is a rather dubious concept. I merely state that law must be based on the human condition. the reason for that statement is simple. if law is not based on the human condition, a Hobbesian state of war is inevitable. That is the logic of it. It is to do with law. it is not to do with morality or reasons of existence. I won't engage in arguments whether a state of war is undesirable or not, that is simply childish. No more to say on it.

Reply to ernestm
Your logic seems to be a little bit faulty. I see no indication that law based on the human condition is the only way to avoid the "Hobbesian state of war", even if that state is an accurate description. And if law based on the human condition is one way of avoiding a "Hobbesian state of war", it is not necessarily the only way. Nor is it necessarily the best way.

Ah, well that is what the next 60,000 words will explain. I am so glad you are interested.

Quoting ernestm

i again have to point out that I am not particularly concerned with distinctions of secular and divine law. It seems I cant say that often enough. I merely state that law must be based on the human condition.

It's odd, then, that you keep referring to what you seem to think is incursion of religious ideas into the law (apparently through Aquinas) to our detriment, presumably because it led to the diminishment of the Code Justinian (a Christian emperor of a Christian Roman Empire) had compiled.

The law, being something we humans made and make still to govern our affairs, naturally (pun intended) has its basis in our characteristics and our interrelation with each other and our environment. But I think your conception of law and legal history is erroneous. It should be obvious since I call myself a ciceronian that I'm an admirer of Cicero, and I'm a student of Roman history as best I can be. But although Roman law after the dissolution of the Western empire was intermixed with the law of the barbarians, the Vandals, Goths, Franks and others formed what might be called Roman successor states in that they borrowed heavily from Roman culture and law when they could, looking back to Rome even as we still do now.

Roman law never vanished to be replaced by something wholly different on the European continent, nor did it even vanish in England, thanks in part to the Norman conquest.

Well it appears you know a great deal more than most. The problem as I see it as follows. Augustine not only denied the golden age (as originally stated by Hesiod) as the basis of natural law, but also substituted a personally based divine law of salvation, coupled with a total denial of any secular authority as meaningful by comparison in justice (emphasis on meaningful), That might have been OK by itself, but he then went further to say that the affairs of men are even a distraction from personal salvation and a danger to the faith.

This was extremely popular, and there was really no rational idea of justice at all during the subsequent collapse of the roman empire, after Augustinian ideas had taken total hold. Most texts were destroyed as blasphemous unless they either contained evidence of how right Augustine was and how wrong the people he condemned were--or had some bearing on the life of Christ as approved by the third Nicene council (other unapproved texts were heretical, and also destroyed). For example, Cicero only survived more than most because the early Christians were confident that Augustine had totally debunked him.

Since then it has been very difficult to disentangle the original ideas of natural law from the divine, from two fronts. First, there are still those who insist that God alone controls what is right and wrong, and they will not tolerate secular ideas of ethics independent from their own. Second, there are the militant atheists seeking to remove any form of divine imagination from the world altogether, with equal force of fanaticism. Both sides seem to me ethically immature. For a society to function, the principles of ethics hold that there should be some acceptance of both sides derivation of the ideas, and as long as the final conclusion is consistent, they should be able to coexist. But that is not what happens. What one instead observes as a continuous and rather banal bickering. All the effort is to disprove the other, and none to refine and expand common ground. This problem is in fact now rife almost to the point of civil war throughout American culture, and exemplified with the total inability of the USA to understand Islam at all. As such, we seem to be repeating the same error that led to the Dark Ages, albeit on a different basis.

Reply to ernestm Ah, I think I see your position now; or at least understand it better than I did before.

I tend to think the ancient concept of natural law (and Roman jurisprudence) owes a great deal to the Stoics. I should say, though, that I may be less than objective in this as I'm an admirer of Stoicism. Although Cicero claimed he wasn't a Stoic, I think he sided with them on many things and was very successful in promulgating Stoicism in Rome and we see the Stoic philosophy influenced the great Roman jurists.

The Stoics didn't believe in a personal god, but thought of the universe as infused with an intelligence that was divine, in which we partake as having the ability to reason. The Stoic injunction to live in accordance with nature was essentially to live consistent with our peculiar nature as rational beings, understanding what is and what is not in our control and doing the best we can with what we have. So, although it may be that Stoicism can be said to base right conduct on a conception of the divine, the pantheistic character of the Divine Reason requires we look to nature itself and our nature in determining right and wrong, what is just and what is unjust.

I agree that the concept of natural law changed with the assimilation of the empire by Christianity, with its personal god dictating what is right and wrong, and that this was an unfortunate development.

Well thank you. I must say the ONLY people who seem to appreciate this are the Stoics. But not all of them. I added references, quotes, pictures, and additional information in response to other comments from Stoics, and altogether the final result of my last two years work is here.

http://www.yofiel.com/social-contract/terrorism

For reasons stated, I dont believe there is any point in me writing anything else.

It seems weird (as in dubious) that your dad, as you've described him, would say, "Yeah, you should definitely vanity-publish this." If your dad is as described, why wouldn't he think that you should seek a legitimate publisher if he believes your work is worth publishing?

2002 called and it wants its website design back

my dad is 92. He gave up on making a difference quite a long time ago. I was a hold out. He does enjoy the subject though.

thank you for the compliment about my website. I dont like modern design, it looks to me like just another post-truth simplification.

Quoting ernestm

I dont like modern design, it looks to me like just another post-truth simplification.

That's a pretentious way of saying nothing, but whatever floats your boat.

rofl, one day maybe you will understand what I said, but its really not important.

Reply to ernestm Ernest, it's hard to imagine a less felicitous way to interest people in your writing than the approach you have pursued here. Peevish to start with and it goes down hill from there.

Reply to Bitter Crank Peevish? lol. What I did was write a summary, as requested, in 1,500 words. Now comments are helping refine it, rather than challenge me on ideas that were totally outside its actual scope. The next complaint was that it no longer expresses my opinion, but describes the facts alone, so there is no way to make personal attacks on me. That is what I was actually going for, but apparently I am told that is no fun, and therefore unwanted. That I only regard as ironic, Plato's cave and all that.