Natural Law and Natural RightsBy James A. Donald
Modern opposition to natural law and natural rights.During the nineteenth century the advocates of limitless state power made a comeback with new rhetoric, (the utilitarians) or the same old rhetoric dressed in new clothes), and in the twentieth century they were politically successful, but militarily unsuccessful.
The absolutists keep adopting new names as each old name starts to stink, but in the nineteenth century, the time when they were intellectually most successful, they mostly called themselves romantics, identifying themselves with the then fashionable artistic and cultural movement, although most of the political “romantics” were no more talented at poetry or painting than Hitler was, and most of the real romantics were not political absolutists, far from it. When the fascists came to power these totally disappeared, mostly calling themselves relativists. The name relativist failed to shake the stink of the gas ovens where the Jews were exterminated, and they are changing it yet again. Since the extermination camps set up again, in what used to be Yugoslavia, relativists have almost disappeared. Soon there will be few relativists, they will all be Post Modernists, or some such.
The absolutists argue that because people have different conceptions of what counts as right and wrong. they need a supreme power to forcibly define justice, and without that definition they wind up in conflict.
It logically follows from this that since people tend to create and impose a concept of justice and right by interacting with each other and by forming the associations that constitute civil society, then all of civil society must be subordinated to the ruler, so that his arbitrary and absolute definition of justice shall suppress all others.
By this reasoning every decision where we judge others and act accordingly must be made under the supervision of the state, which means that every aspect of civil society must subordinated to power of the state. (Absolutists phrase it differently, saying that every aspect of society must be provided with a common arbitrary definition of justice by the state, mere men being incapable of knowing the difference)
Hobbes concept of inalienable rights and the fascists concept of natural law is just as logical as the usual concepts of inalienable rights and natural law, indeed more logical. We cannot decide between these two different conceptions of natural law by pure reason, but we can easily decide by appeal to facts.
If disagreement on the nature of good is a common cause of violent conflict, then the absolutists are correct. If violent conflict is almost always a result of ordinary everyday uncomplicated, easily recognizable evil, then natural law is correct.
As Locke pointed out in his essay on toleration, holy wars are not about the true path to salvation, they are just like any other war. A group defines another as enemy, and uses organized violence to steal their land and gold. Their cause is not differing conceptions of the good, but simple uncomplicated evil. Saint Thomas Aquinas pointed out the same thing four hundred years before Locke, though he expressed himself more diplomatically
Disagreement on the nature of the good is only a problem with minor and unimportant matters, not worth fighting over, and when the state is absent or weak, precedent on such matters swiftly becomes customary law. For example on the American frontier conflict consisted of mostly of fair fights conducted more or less in accordance with the code duello, and the rest was mostly straightforward uncomplicated ordinary everyday evil, simple crime, no deep philosophizing required.
The Lex Mercatoria, the customary law governing trade between different jurisdictions, shows that people have from diverse cultures and languages have no great difficulty in agreeing on what is lawful, in order to conduct business with each other. (B.L. Benson, RC Ellickson).
If the state abandons the principle that the law should be general and uniform, and instead concocts a vast multitude of special particular rules, treating one category of person very differently from another, so that one type of property can be seized in one circumstance, and another kind in another circumstance, so that a particular category of person is given a monopoly privilege of some category of business, such as taxi driving and others are excluded or have to work for the privileged and hand over the bulk of their takings to them, then in that case, in the case where generality and uniformity are abandoned, then indeed there can be no agreement - not because men do not know what is just, but because such rules are unjust. When the rules are very particular and non uniform, then the particular groups harmed or benefited by particular rules will come into severe conflict, and this will make it necessary for the state to intervene and supervise in a multitude of matters that should be private matters between one man and another. It will become necessary for the state to take over and supervise civil society in detail.
The more a government violates the principles of uniformity and generality of the law, the more arbitrary and complex its laws become, then the more it comes to resemble an absolutist government, and the more it suffers from problems for which political absolutism appears to be the solution.
Every so often, a ruler such as King James II or Adolf Hitler, attempts to put the theories of the absolutists into effect. The theories and doctrines are immediately seen by their true face, and everyone utterly abhors them.
The absolutists then concoct a new name, and dress their doctrines in new plumage so that they sound like the normal actions of the state to sustain the rule of law, rather than what they truly are, the use of violence by the state to crush the rule of law.
Regardless of the name, and regardless of the rhetorical flourishes used to make the doctrine sound different from what it is, their doctrine remains the same: that justice is whatever courts do, that any law whatsoever is lawful, that right and wrong is what the law says it is and the law is whatever the nation says it is. This is the doctrine of absolutism, and anyone who advocates this doctrine is an absolutist, no matter how many names he thinks up for himself. Because these ideas acquired a bad odor in the seventeenth century, people are always finding new and different ways to express these ideas, so that they sound different, whilst remaining the same, but each new form of expression again acquires a bad odor when some ruler puts it into action.
The doctrine called relativism is the same as seventeenth century absolutism, but the rhetoric that the “relativists” used to defend it sounds superficially like the rhetoric used by the opponents of absolutism, just as the name sounds as if they are opponents of absolutism. In particular, the “relativists” aped John Locke's Letter concerning Toleration, but where Lock was arguing for the liberty of the citizen, the “relativists” used similar sounding language to argue for the license of nations. The “relativists” opposed Locke, while draping themselves in Lockean symbols.
In the same way the “Post Modernists” use a name that claims that their doctrine is entirely new and unconnected with what went before, and they claim that to examine modern doctrines and compare them to medieval doctrines is a foolish waste of time (“Studying dead white males”), and that one should not compare the current doctrines of “Post Modernists” with the earlier doctrines, even earlier doctrines preached by the same people. When they defend their two thousand year old positions with three hundred old arguments, they liberally decorate their arguments with meaningless and irrelevant references to the latest fashions and newest music stars, so as to give the sound and appearance that these doctrines and arguments are brand new, and absolutely unconnected to earlier doctrines.
The absolutists/ romantics/ relativists/ post modernists continually change their name and plumage in a vain effort to escape their past, but the stink of piles rotting dead lingers on them.
The utilitarians have a more plausible and attractive appearance. They say that any act of force and coercion by the state is proper and lawful if it aims for the greatest good of the greatest number. Sounds pleasant and reasonable, does it not? Such a doctrine would be sound if the world were not what it is. and we were not as we are. It would be a fine doctrine if humans were intelligent bees instead of intelligent apes, but we are not, and it is not.
It is not sensible to ask: How shall “we” act to maximize “our” happiness? This is a nonsense question because individual desires necessarily conflict. The sensible question is: Given that individual desires conflict, how can we avoid too much violence? We can keep the peace collectively. It is impossible to pursue happiness collectively
Utilitarianism has two serious problems, problems that most utilitarians regard as advantages. The idea of the greatest good for the greatest number implies that someone should be in charge, with the authority and duty to sacrifice any one persons property, liberty, and life, for the greater good. It also assumes that a persons good is knowable, and that other people can judge this good for him, make decisions on his behalf, and balance that good with other peoples good. Since any one person is expendable, then there can be no such thing as human rights, as Bentham frankly argued. Clearly the doctrine of the greatest good is going to be highly attractive to those intellectuals who envisage themselves as being in charge of deciding what is good for other people, deciding whose property shall be confiscated for the greater good, who shall be imprisoned for the greater good, or for his own good.
Many people have attempted to construct utilitarian arguments for limiting the authority of the state, most notably John Stuart Mill, but their arguments are always feeble, implausible, strained, and forced. It is even difficult to make a convincing utilitarian argument that rape is unlawful. Feminist utilitarians who attempt to construct utilitarian arguments against rape have been forced to make unreasonable assumptions about males and male sexuality. The “rights” deduced by these convoluted, elaborate, and unconvincing rationalizations are not rights at all, but are akin to what some utilitarians call “positive rights”.
Utilitarian critics of socialism find themselves arguing that socialism leads to slower economic growth, when it is clear that in their hearts what they want to argue is that socialism leads to slavery and lawless violence by the state, but they cannot express the thought within a utilitarian framework, because slavery and lawless state violence are meaningless concepts within utilitarianism.
Utilitarianism contains false implicit assumptions about the nature of man and the nature of society, and these false assumptions lead utilitarians to the absurd conclusion that a good government should create and enforce a form of society that in practice requires extreme coercion and intrusive supervision by a vast and lawless bureaucracy, leading to events and consequences very different to those intended.
What utilitarians mean by society is the exact opposite of “civil society”. Utilitarians continually use phrases like: “Society wants ...”, “Society creates this rule in order to ...” Utilitarians imagine, consciously or subconsciously that society exists as reified entity, a supreme being capable of itself having desires, ends, and means, capable of consciously planning specific measures to achieve specific desired goals.
This single entity is above the selfish individualism of ordinary mortals, and so rightfully possesses the limitless right to use force and coercion. They imagine that this being would welcome the enforcement of the rules that it commands. If this divine being existed, then utilitarianism would make sense, but there is no such entity.
Actual individual people need no rules to force them to pursue their own ends, and when rules are enforced on them, violating their rights for the sake someone else's ends, they invariably surprise the utilitarians by vigorously resisting such rules, thus a state that bases its legitimacy and cohesion on utilitarian principles rather than on natural rights and the rule of law, requires a very high level of violence and coercion, violence that tends to constantly increase and become more severe.
The greater good is unknowable because “Society” is not a conscious entity capable of experiencing that good. Attempts to create a simulation of this deity, using elections and like methods, have been seriously unsuccessful. The state tends to behave remarkably as if it was simply a group of mere mortals, men with their own urgent needs and desires, fallible, weak, and prone to evil, pursuing their own personal goods, no different from any other organization.
Plainly therefore the state is just another group of people, and must rightfully be subject to the same law as any other person or group of people. It has no superior right to use force to achieve its goals, and if you grant it such a right, it will in the end result in the loss of your property and in slavery.
“Society” does not exist, rights do exist, not as arbitrary fiats of the state as the utilitarians claim, but inherently as a result of the nature of man. No conflict exists between civil order and individual rights. Both concepts are based on the same fundamental principles.
The real issue is not “what is the nature of good” as utilitarians pretend. The real issue is: Are rights a discovery by individuals that enable them to get along peaceably with other individuals, or are they a creation of a supreme being such as a reified society or reified state, that imposes peace on a vicious multitude with no inherent knowledge of good and evil, thus forcing on them the peace that slaves of a common master possess.
Today instead of frankly arguing that human rights are nonsense, as Bentham did, modern utilitarians use elaborate euphemisms, such as “positive rights” and “positive freedom”. No two people seem to mean the same thing when they make distinction between positive and negative rights and liberties, and their meanings seem to change rapidly from one paragraph to the next. The effect of this supposed distinction is always to destroy the meaning of “liberty” and “right”, and usually to legitimize as slavery as liberty. This supposed concept is mere fog.
Often a “positive right” is in practice the precise opposite of a right. A “negative right” is the right to be left alone, for example “An Englishman's home is his castle”, “freedom of speech”. A “positive right” is usually a government guarantee that it will supervise, direct, and control you for your own good, for example the “right to employment”, of which Marxists are so fond. (Or used to be fond back in the days when Marxists existed outside American universities.) You will notice that the “right to employment” enjoyed by the workers on Cuban sugar plantations is in practice very similar to the “right to employment” that they enjoyed when they were slaves on those plantations. If they run away from the employment that the benevolent state has so kindly assigned to them, they will be hunted down, and, if captured, returned, beaten, and set to work again. In the same way the “right to employment” enjoyed by the workers on Russian collective farms was very similar to the “right to employment” that they enjoyed on these farms when they were serfs. Of course these modern slaves also have the “right” to a guaranteed fair wage, and so forth. Unfortunately they are not guaranteed that there will be anything in the shops for them to buy with their guaranteed fair wages. Indeed in rural areas they are not guaranteed there will be any shops at all. They are not permitted to go to the shops that the elite goes to, and they are not permitted to travel any significant distance from their place of employment, rendering their “salaries” utterly meaningless. “Positive rights” ape the forms of a free society, without the substance.
Since the fall of communism we have heard less talk about positive rights and positive freedoms. A right is only a right if, as with the rights to life, liberty, and property, you can rightfully use necessary and sufficient force to defend yourself against those who interfere with your exercise of that right. A right is no right at all if it is granted to you by the benevolence of your masters.
Authoritarian utilitarians started by trying to transform the meaning of “good”, and they have continued to try, with some success, to change the meaning of words so as to make it impossible to express thoughts that question the legitimacy and authority of the state. They have partially succeeded with “law”, They are having some success with the word “right”. Thus in America civil rights now means almost the opposite of natural right. For example being for “gay rights” now means that you are opposed to freedom of association. Being in favor of freedom of association is now understood to mean that you are against the right of privacy. It is difficult to express the idea that the state should neither force people to accept homosexuality, nor use force to suppress homosexuality. It is now difficult to express the idea that sexuality is not the proper business of the state, that force and violence is the proper business of the state, not sin or social exclusion. This perversion of the word “rights” makes everything the business of the state, directly contrary to the normal meaning of “right”. Some people today find it very difficult to comprehend the meaning of the ninth amendment, because the language has been so perverted as to make such subversive ideas inexpressible.
The utilitarians have constructed an artificial language in which it is impossible to express such concepts “the rule of law”, “natural rights”, or any idea or fact that would reject the limitless, absolute, lawless and capricious power of the state, and they seek to impose that language on the world.
Utilitarians usually argue in the same way that Marxists and behaviorists argue. They translate any statement you make into utilitarian speak, and then state their translation: “What you are really saying is...”. Since utilitarian speak is incapable of expressing any statement that would contradict the limitless and absolute power of the state, your statements are turned into nonsense, and they then contemptuously point out that what you are saying is nonsense.
How could one express in utilitarian speak the idea that the condemnation orders issued by the government against home owners in Dade county September 1992 were unlawful, that the home owners had the right and the duty to resist attempts to evict them with all force necessary, that their effective and successful resistance was lawful regardless of what pieces of paper the government manufactured? If I attempted to say this in utilitarian speak I would end up saying that the government had not done its paper work correctly, or that government reallocation of land would be suboptimal!
When a utilitarian attempts to speak about such matters he wants to claim that the government broke its own “rule based procedures for property allocation” (rule based utilitarianism), in order to conceal from himself his own intuitive knowledge that the government acted lawlessly. His rationalization is plainly false: The governments actions were a result of consistently applying the governments utilitarian rules on substandard housing. The hurricane had made everyone's housing substandard. The government obeyed their own unlawful rules, violating the rights of their subjects. The violent wrath of their subjects was so great, that the government back tracked and chose to respect the property rights of their subjects, in violation of their own “rule based procedures for property allocation.”
Those of us who seek to protect and restore freedom must avoid using the words our enemies seek to impose on us. The only way to escape from this trap is to use the language of natural law, the language with which a free society was envisioned and created, the words for which so many people killed and died. If we submit to using words that prevent us from expressing the thought of limits to government power and authority, then there will be no limits to government power and authority.
Words carry with them systems of ideas. The only system of ideas capable of repudiating limitless and absolute state power is natural law. It is impossible to speak about limits to the power and authority of the state except in the language with which such ideas were originally expressed. No other language is available.
If someone rejects the language of natural law, refuses to use such words, pretends not to comprehend them, and rejects them as meaningless, then he is not interested in using words as a medium of communication. He is merely using them as a method of control. It is pointless to attempt to communicate with such a person.
It most doubtful that other peoples good is knowable in principle. It certainly is not knowable in practice. In practice, whenever any organization makes a serious attempt to ascertain the greater good it is submerged in a flood of paperwork, and to defend itself against this flood of paper it strangles everything it touches in red tape. It unavoidably finds itself imposing, by increasingly lawless violence, a procrustean and arbitrary concept of the good. If I take a slight detour on my way to work I go through rent controlled East Palo Alto, where I can watch my tax dollars at play, and observe this destructive process in operation.
The most dramatic and devastating demonstration of the difficulty of knowing the greater good, and the most famous and best known, was of course the attempt of the Cambodian government to increase the rice harvest by central direction of irrigation. This led to irrigation ditches being dug in nice neat straight lines without regard to small scale topography, with the result that they failed to transport water, it led to wetland rice being planted on land that remained dry, dry land rice being planted on land that became submerged, and so on and so forth. The peasants, foreseeing death by starvation if they continued to pursue the greater good, selfishly sought to pursue their own individual good, contrary to the decrees of their masters. Their masters imagined themselves to be responsible for feeding the peasants, so they were reluctantly forced to use ever more savage terror and torture to force the starving peasants to pursue the greater good. For the sake of the greater good, the peasants were forced to watch their starving children murdered, for the sake of the greater good they were forced to maim and break those they loved with crude agricultural implements, for the sake of the greater good they were brutally and savagely tortured, for the sake of the greater good they died horrible and degrading deaths in vast numbers, all for the greatest good of the greatest number.
Similar, though less extreme, events have occurred throughout the vast majority of the third world. Cambodia was merely the most monstrous of these of these events, but there have been many others, smaller in scale but equal in horror and depravity. In countries where people live close to hunger, most of the third world, state intervention to improve people lives has invariably resulted in mass starvation, these catastrophes being most photogenic in Africa. This mass starvation has often resulted in resistance the these benefits and improvements, which has resulted in extraordinarily brutal terror and torture, to extort continued submission to government aid. Especially entertaining is the suffering of the unfortunate recipients of government to government aid. One notable example is the World Bank resettlement program in Ethiopia, where hundreds of thousands of people who failed to appreciate the generous aid their Marxist government provided them were resettled in extermination camps built by the World Bank, and shipped to those camps in cattle trucks supplied by the World Bank (Bandow, Bovard, Keyes). Another amusing example of your taxes at work providing the greatest good for the greatest number was the World Bank's Akosombo dam project (Bovard, Lappe 35 37). Most attempts to determine the greatest good for the greatest number have had similar outcomes, it is just that in affluent societies the consequences are less flagrant, less brutally obvious. In a poor society an attempt to provide the greatest good for the greatest number usually results in starvation, death, torture, and maiming. In an affluent society it merely produces poverty, fatherless children, homelessness, street crime, and discreet police violence.
Stalin tried simple utilitarianism until 1921, meta rule based utilitarianism from 1921 to 1928 and rule based utilitarianism from 1928 onwards. The problem was not errors specific to Marxism, as non Marxist socialists argue. Nor was it errors specific to socialism, as non socialist utilitarians argue. The problem was the basic assumption that the state could pursue good ends by force and coercion. In the social fabric, means are ends.
In order to argue that Stalin's analysis of utility was incorrect, utilitarians find themselves rationalizing that the Soviet Union failed because of economic errors. But this is plainly false. The Soviet Union did not lose cohesion because of economic errors. Loss of cohesion came first, economic problems came later. It suffered economic stagnation as a result of loss of social cohesion.
Mises criticism of the difficulty of economic calculation under socialism is true but irrelevant. No doubt the central plan was full of defects, but the Soviet economy did fine despite the central plan. The economy only began to falter when government organizations started raiding each other. Armed raids by one government agency to seize stuff under the control of another government agency became commonplace, rendering the plan irrelevant.
Mises theory of human action is correct, but the important thing is not to apply it merely to allocation of resources, as Mises did, but to questions of good and evil, lawful and unlawful, as Hayek did. Knowledge of the rights of man is more important than knowledge of what area should be planted with cabbages.
Whether a government consciously intends to destroy free enterprise or not, free enterprise cannot survive the destruction of the rule of law by the state, as Hayek pointed out. The rule of law is not merely a matter of the government applying its own rules in a consistent manner to all its subjects, as Stalin did in the great terror. The rule of law is not rule based utilitarianism, it is fundamentally incompatible with any form of utilitarianism. The concept of the rule of law is inexpressible in utilitarian speak, and is meaningless within the utilitarian philosophy.
Even if it were possible in principle to determine the good of others, and impose that good on them by force, history shows us that it is not practical. When one considers utilitarianism in real life, it necessary to laugh, so as to avoid weeping.
Whereas the absolutists produce mere hills of corpses, and then hygienically process the hills into useful products like soap and lampshades, the utilitarians produce them in mountains, but the utilitarians shake the stench more easily, blandly professing their good intentions and casually waving away the tens of millions of murdered women and children.
Whenever the ugly ideas of the absolutists are put into practice the absolutists change their name and rhetoric, from absolutist to romantic to relativist to post modernist, Whenever the pleasant and attractive ideas of the utilitarians are put into practice, the utilitarians shrug their shoulders and say, “but that is not what we intended, it was all a mistake, Stalin's analysis of utility was faulty. If our ideas were put into action properly all would be well,” claiming that professed good intentions outweigh any number of foul deeds. By their fruit you will know them. Since the Cambodian irrigation project and the World Bank African assistance program the utilitarians have been unable to shake the stink quite so easily, and some utilitarian factions are now trying out new names. The phrase “the greater good” is at last starting to sound like a polite euphemism for lawless state violence. People are becoming embarrassed to use it, whereas a decade or so ago there was no such embarrassment.