Rights

[George H. Smith]

Lou's monograph has been reprinted in an anthology, The Myth of Natural Rights and Other Essays, which can be ordered here. This collection contains a reply to a critical review of The Myth of Natural Rights that I wrote in 1985 for Sam Konkin's New Libertarian. I think I still have the original issue of New Libertarian somewhere, but, so far as I know, my review is not available online. I wish Lou had dealt with more substantive points rather than some side-issues I raised, but that's life.

I think what Lou Rollins quoted from you was more than a side issue, for you went straight for the premise Rand's moral philosophy rests on, tested it and presented a result which exposes the premise itself as being a moral sanction of all life as such (and not only man's life).

I was referring to something Lou wrote later, i.e., his response to a critical review that I wrote of The Myth of Natural Rights. Lou's reply is contained in his later collection of essays.

Ghs

[George H. Smith]

Then follows a passage of Rand's "Man's Rights", to which Rollins applies what one could call 'Rollins's Razor', for that guy is extremely sharp-witted. He is also polemic and quite drastic, a real radical who also seems to have an anarchistic streak.

A type like Rollins makes a perfect "devil's advocate" as an opponent to everyone advocating 'man's natural rights', and what makes his attacks so hard to refute is that he goes straight for the premises and tries to exposes them as false.

Maybe you already have the book, but to give the forum readers an impression of just how radical Rollins is - here is an example:

L.A. Rollins, The Myth of Natural Rights, 1983, p. 2

"... I say that natural law is mythical and is really fake or metaphorical law.

The metaphorical nature of natural rights is obvious in many statements by natural rights mythologizers.

You are easily impressed. Lou's basic arguments are simply warmed over Benthamism, as expressed by Jeremy Bentham himself and by his highly influential disciple John Austin, in Lectures on Jurisprudence (1832).

Lou adopted the Benthamite mantra that only "positive" laws enacted and enforced by sovereign states qualify as real laws. When, in my critique of Lou's book, I pointed out that Bentham also regarded expressions like "laws of science" as metaphorical usages of the word "law," Lou replied (in "A Reply to My Reviewers," 1985) that he was "inclined" to agree; to speak of scientific "laws" is also metaphorical.

This restrictive approach, which was widely discussed by Bentham's critics throughout the 19th century, rests upon an arbitrary, stipulative definition of "law." It has no historical foundation or valid philosophical justification.

So do you agree with Bentham and Rollins? Do you agree that when scientists speak of scientific "laws," they are being as sloppy and imprecise as natural law moral philosophers?

I would ask if you know anything about the history of the natural law tradition, and what adherents of this tradition meant by "law," but that would be silly of me. I might as well ask my dog to explain Aristotle's metaphysics. Nevertheless, before you jump on the Benthamite bandwagon without having read Bentham, you might at least define what you mean by the word "law."

And before you marvel at Bentham's (and, by extension, Lou's) supposed radicalism, you should understand the point of his Anarchical Fallacies, which Lou quoted from a secondary source without having read it for himself. This is the article where we find Bentham's famous aphorism, "Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts."

Anti-natural rights libertarians who haven't read Bentham love this passage. I have had it quoted against me in numerous public debates on natural rights over the years. What these libertarians don't understand is the reason why Bentham was so hostile to natural rights. Although he knew almost nothing about the natural rights tradition, and although his philosophical criticism of natural rights never went much beyond calling it a "fiction" (by which he mean an abstraction; Bentham did not like abstractions), Bentham knew enough about natural rights to call it "terrorist language."

Bentham, a determined foe of both the American and French Revolutions, could not abide any doctrine that justified disobedience to the State, much less revolution. But this is the radical message of natural rights theory, which leads to "the extremity of mischief." The notion that governments have been, or can be, based on consent (a corollary of natural rights theory) "is a pure fiction"; all governments have been "formed by force," and this is as it should be. "No liberty can be given to one but in proportion as it is taken from another" -- the notion of "equal liberty" was, for Bentham, another fiction -- and brute physical force is the only way to achieve this.

But natural rights philosophers would have none of this and so were a danger to society, according to Bentham. As he put it in Anarchical Fallacies, in a passage that he regarded as a reductio ad absurdum refutation of natural rights theory:

Whenever you are about to be oppressed, you have a right to resist oppression; whenever you conceive yourself to be oppressed, conceive yourself to have a right to make resistance, and act accordingly. In proportion as a law of any kind, any act of power, supreme or subordinate, legislative, administrative, or judicial, is unpleasant to a man, especially if, in consideration of such its unpleasantness, his opinion is, that such act of power ought not to have been exercised, he of course looks upon it as oppression. As often as this sort of thing happens to a man, to inflame his passions, this article, for fear his passions should not be sufficiently inflamed of themselves, sets itself to work to fan the flame, and urges him to resistance. Submit not to any decree or other act of power of the justice of which you are not yourself perfectly convinced. If a constable calls upon you to serve in the militia, shoot the constable and not the enemy; if the commander of a press-gang trouble you, push him into the sea; if a bailiff, throw him out of the window. If a judge sentences you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.

In short, there is no way a government can function if people take natural rights seriously; the theory of natural rights is therefore an "anarchical fallacy." This complaint, which was also voiced by Robert Filmer, Edmund Burke, Josiah Tucker, and other predecessors of Bentham -- was the major criticism of natural rights theory throughout the 17th and 18th centuries.

Ghs

[Xray]

You are easily impressed. Lou's basic arguments are simply warmed over Benthamism, as expressed by Jeremy Bentham himself and by his highly influential disciple John Austin, in Lectures on Jurisprudence (1832).

Lou adopted the Benthamite mantra that only "positive" laws enacted and enforced by sovereign states qualify as real laws.

Do you believe in natural rights granted to you by some nebulous "natural law"? Do you seriously believe that just because you were born with a stomach, this includes the natural right to have it filled?

Just for clarification to avoid any misunderstanding: human beings can of course happen to be born into a society where laws (created by other human beings) do grant them the right to have their stomachs filled. I for example have the legal right to have my stomach filled because I happen to be born into a society where welfare will kick in in case I can't feed myself. Unlike any imaginary natural right, it is a real right I actually have.

When, in my critique of Lou's book, I pointed out that Bentham also regarded expressions like "laws of science" as metaphorical usages of the word "law," Lou replied (in "A Reply to My Reviewers," 1985) that he was "inclined" to agree; to speak of scientific "laws" is also metaphorical.

This is a linguistic issue: audiovisual symbols of a language can be used for a variety of meanings, and in the case of "scientific laws", there is no doubt as to what is meant by the metaphorical use of "law".

Rollins himself pointed this out clearly when he wrote about "natural law" being "it must be emphasized, a moral law which prescribes how people ought to act. It is distinct from scientifically established laws, sometimes called "natural laws", which describe how natural phenomena regularly do act." (TMONR, p. 1/2)

So do you agree with Bentham and Rollins? Do you agree that when scientists speak of scientific "laws," they are being as sloppy and imprecise as natural law moral philosophers?

I agree with Bentham and Rollins that [the idea of] “Natural rights is simple nonsense" (JB)

"natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts." (JB)

I don't agree with this part of the quote. Imo the nonsense is of epistemological nature, and does not even have stilts.

How scientists use the term "law" is of no relevance in this context, since it is unambiguously clear what they mean by the term.

In Rollins's place, instead of "metaphorical", I would have used the term "imaginary"; this would have avoided the confusion created by a linguistic term like "metaphorical" which can lead to an (in this case) unproductive linguistic sideshow about metaphorical use of language while losing sight of the real issue: that something is claimed to exist (so-called "natural rights") without the claimers having the slightest shred of evidence to support their claim.

Again, to clarify: I'm arguing from an epistemological (not an ethical), standpoint here. Since epistemology is basic for any philosophical discussion, examining whether the premises of an idea stand up to scrutiny is crucial.

So let's go ahead and test it.

But before we start, I want to comment on something you frequently put on the table in debates as an alleged trump card: the assertion that those you discuss with don't know about the philosophical history of a tradition.

But knowing about the history of an idea ("natural rights"), does not constitute evidence of such rights actually existing, and here's where the epistemological rub is.

So while the notion of natural rights may well have worked as a weapon against the doctrine of the 'divine right of kings', this does not imply that the notion of natural rights has itself an epistemological leg to stand on.

I would ask if you know anything about the history of the natural law tradition, and what adherents of this tradition meant by "law," but that would be silly of me.

You are like someone who, when asked to examine salt under the microscope, instead gives a lecture on the tradition of cooking with salt.

And before you marvel at Bentham's (and, by extension, Lou's) supposed radicalism, you should understand the point of his Anarchical Fallacies, which Lou quoted from a secondary source without having read it for himself. This is the article where we find Bentham's famous aphorism, "Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts."

Anti-natural rights libertarians who haven't read Bentham love this passage. I have had it quoted against me in numerous public debates on natural rights over the years. What these libertarians don't understand is the reason why Bentham was so hostile to natural rights. Although he knew almost nothing about the natural rights tradition, and although his philosophical criticism of natural rights never went much beyond calling it a "fiction" (by which he mean an abstraction; Bentham did not like abstractions), Bentham knew enough about natural rights to call it "terrorist language."

Fiction is the far better word than "abstraction" imo.

Again, your point being? We all know that ideas based on epistemological fallacies can be powerful weapons nonetheless, don't we.

One fallacy fighting another is actually so frequent in the political history of mankind that one has no trouble finding examples to illustrate.

Here are some:

Before the final fall of the Communist East Germny in 1989, where did the opponents gather? In churches.

In Russia, despite all efforts, the Communist powerholders did not succeed in eliminating the influence of the various churches and their belief in god's law superior to all human law.

In Latin America, Liberation theology has been influential as well. It "interprets the teachings of Jesus Christ in terms of a liberation from unjust economic, political, or social conditions. It has been described by proponents as "an interpretation of Christian faith through the poor's suffering, their struggle and hope, and a critique of society and the Catholic faith and Christianity through the eyes of the poor",[2] and by detractors as Christianity influenced by Marxism and Communism.[3]

http://en.wikipedia.org/wiki/Liberation_theology

Therefore belief in whatever can of course become a powerful and dangerous weapon.

Nevertheless, before you jump on the Benthamite bandwagon without having read Bentham, you might at least define what you mean by the word "law."

I'm not jumping on any bandwagon although I do find several of Bentham's ideas very appealing, for example, his advocating the ethical treatment of animals. But this does not make me a Benthamite.

As for what I mean by the word "law" in the context of this discussion, what it says here should cover it:

1. A rule of conduct or procedure established by custom, agreement, or authority.

2.

a. The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system: international law.

b. The condition of social order and justice created by adherence to such a system: a breakdown of law and civilized behavior.

http://www.thefreedictionary.com/Law

I'm interested in examining the premises of a claim (that man has "natural rights" qua birth). Imo this premise rests on a fallacy: not on the fallacy of deriving an 'ought' from an 'is', but on the fallacy of presenting an 'ought' as an 'is'.

So I won't ask you here to give a rundown of what which philosopher understood by "law"; for this will only give you an opportunity to slip away again. (It fascinates me how easily key issues can get 'lost in explanation', so to speak, and suddenly the forest can't be seen for the trees anymore).

I'll take a direct approach instead and ask you about your premises regarding the claim.

Do you believe you were born with natural rights?

A simple "yes" or "no" will suffice to make clear where you stand.

Edited November 27, 2010 by Xray

[Brant Gaede]

Natural rights are a human invention. They are artificial until effectively codified. The natural merely refers to human nature as identified by the people who invented and advocated and advocate those particular rights, which are of a so-called negative nature. They are generally not arbitrary, however, but there are logical problems respecting fetuses and babies apropos the right to abortion, etc. No one is born with rights, of course, but that begs the question of whether rights are granted. Rights exist in the law and its enforcement but the natural exists in a human being. You are born with your nature and your nature justifies rights in the law but doesn't gainsay your right to defend yourself from someone who initiates force against you absent law. Absent law you are the law and it is your force that will protect you, I hope, just as it is force that imposes government and its rights' protecting agencies upon a society. Ultimately it all comes down to who's got the power, the rights' protectors or the rights' violators. Force is the final arbiter in all human relationships: force between men and force between nations. Someone can be dead right and someone can be wrong and alive. The bad guy can win, at least from one aspect or perspective.

--Brant

Edited November 27, 2010 by Brant Gaede

[George H. Smith]

Do you believe in natural rights granted to you by some nebulous "natural law"? Do you seriously believe that just because you were born with a stomach, this includes the natural right to have it filled?

No. Why would you think that I believe something like this? Are you really that ignorant of what "natural law" has meant historically?

In Summa Theologica, Thomas Aquinas writes, "Law is a rule and measure of acts, by which man is induced to act or is restrained from acting." (You will act to attain those things you regard as good and you will avoid those things you regard as bad.) Aquinas goes on to say that "the natural law is something appointed by reason." Moreover, "the precepts of natural law are to the practical reason what the first principles of demonstration are to the speculative reason." He continues:

This is the first precept of law, that good is to be pursued and evil is to be avoided. All other precepts of natural law are based upon this, so that whatever the practical reason naturally apprehends as man's good belongs to the precepts of the natural law as something to be done or avoided.

Aquinas goes on to argue that the first precept of natural law is self-preservation: "whatever is a means of preserving human life and of warding off its obstacles belongs to the natural law." And it is only through reason that we can determine what will and will not further human life. Reason is necessary because the apparent good (i.e., what we believe is good for us) may conflict with the real good (i.e., what actually furthers our welfare), and only reason can distinguish between the two.

In other words, natural laws are general principles of human conduct that are rooted in the nature of human beings -- hence the term "natural" -- and which human beings must understand (on some level) if they are to survive and live a good life. Man does not invent these norms out of thin air; rather he discovers them with the use of his reason, and then he formulates them so that they can be applied by his "practical reason" to the attainment of happiness -- which, for Aquinas as for all Aristotelians, is the ultimate good for man.

This use of "law" has an ancient provenance; it goes back at least to the ancient Greeks. Positive law, i.e., law enacted by government, was seen as the specific application of natural law to human communities. This link between natural and positive law was the foundation of the standard argument -- which was clearly formulated by Cicero, which even Aquinas defended, and which became common fare throughout the 17th and 18th centuries-- that unjust governmental laws are not truly "laws" at all, because they carry no obligation to obey them.

In this tradition, which dominated western thinking for nearly 2000 years, the essential characteristic of a "law" is its obligatory nature. It was only after the rise of the modern nation state a few centuries ago, along with the attendant notion of "sovereignty, that political absolutists, such as Thomas Hobbes, began to argue for the positivistic concept of law that we later find in Bentham. It is therefore very peculiar, not to mention historically ignorant, to claim that only the positive concept of law is real and that other usages are metaphorical.

Ghs

[Brant Gaede]

If someone has the right to initiate force why doesn't another someone have the right to use defensive force against an initiator? This leaves open the question of who is in the morally authoritative position in this trading in forces. Who is right and who is wrong, and why. Who is good and who is bad. Good and evil. The point, of course, is that there is no initiation of force right--that that contradicts and violates rights.

--Brant

Edited November 27, 2010 by Brant Gaede

[Brant Gaede]

When it comes to government we get what we've got and try to replace it or fix it or whatever it is we can do. Pining for an ideal isn't practical and practicable only for illustrating the impracticality of Utopian thinking as such, whether it is Rand's Utopian thinking or an anarchist's or someone else's. Before this country and most other countries decided to drown themselves in debt and accelerate history into a gigantic collapse that is slowly enveloping the West and its major trading partners, it made some sense to think of turning the tide of collectivism, but now we have to wait until it goes splat and hope we don't have a major war too boot, and take care of ourselves and ours in the meantime. I don't know how bad it's going to get, only a lot worse, all I know is the inevitability of the implosion of debt, public and private, especially Japanese, European and American debt.

--Brant