Natural law arguments

What follows is a catalog of actual arguments that have been made against the proposition that natural law exists, along with responses. The catalog is preceded by a presentation of what the natural law position is - more specifically, a particular natural law position (or rather, three, as explained). It was written by Mikel Evins in April, 2001, and can be found here.

This message is a summary of arguments for and against the proposition that natural law exists. Naturally, this message will be very long.

The natural law argument is this:

People by their nature inevitably come into conflict from time to time.When they can't resolve a conflict peacefully between themselves and don't want to resort to violence or drop the conflict, they turn to someone else to resolve it. People will naturally and predictably find some methods for resolving such conflicts more congenial than others. There are some classes of conflict for which people will naturally and predictably find certain kinds of resolutions more congenial than others. The procedures people find more congenial will also produce the resolutions people find more congenial. And the procedures and resolutions that people find more congenial will tend to resemble each other across times and cultures.

In summary, that's the natural law position. The phrase 'natural law' is used to refer to the proposition that there is a way of resolving conflict that is natural to people. It's also used to refer to an imagined body of custom that people would find more congenial than any alternative, though we may not know exactly what customs those are, and it's logically possible that there may be more than one such set of customs. It's also used to refer to certain specific bodies of received custom that are generally believed to approximate natural law in the second sense.

It is possible to believe in the correctness of any of the above three propositions without believing in the others, though I observe that most people who accept one tend to accept the others. For my part, I tend to provisionally accept all three on the basis of historical evidence and economic argumentation.

Below are arguments against this position that have been posted to the threads 'Original discovers' and 'natural law (was: Original discovers)' since April 13th, along with my answers to them. They are numerous, and I may have missed one here or there. Logical fallacies are, as usual, overrepresented, and I'll simply note some of these without developing much in the way of counterargument; an elementary fallacy should not require much in the way of refutation.

By way of summary, I'll just remark that most objections to the natural law position seem to misconstrue what its claims are, or to reject the claims without regard for whether they are true. I didn't always buy the claim that natural law existed; I was persuaded by a combination of practical examples, readings in the history of common and customary law, and in the literature of the behavioral sciences. I could be persuaded by reason and evidence that my provisional acceptance of natural law is wrong, but I have not encountered an argument from an opponent that begins to address the reasoning and evidence that persuaded me. Most of them amount to either 'well, I don't have to believe that' or 'you're a bad person for thinking that.'

1. [Luke Webber, 4/14] Lawmakers define what is legitimate.

Legitimacy means what people accept as right and just. If people unanimously, or even generally, accept anything lawmakers say as right and just then positive law and natural law are the same thing: whatever the lawmakers say is right and just by definition. In that case there is no natural law as a distinct category; there is only positive law and in the absence of positive law there is no law at all. But that is not the case; there have been many peoples who have lacked positive law but who nevertheless have had law. And people do not in fact accept whatever lawmakers say as right and just. On the contrary, they often protest and resist laws made by lawmakers, and sometimes go so far as to entirely overthrow the lawmaking apparatus. So it must be that legitimacy is not defined after all by what lawmakers say.

Lawmakers do not define what is legitimate.

2.[Luke Webber, 4/15] Natural law is a purely theoretic construct without practical use.

The Kapauku Papuans resolve serious disputes by turning to a third party who is not party to the dispute in question, presenting the claims of the two sides, and agreeing to abide by the decision of the third party. In virtually all cases that arise, the two parties in fact abide by the decision of the judge, though the judges have no means of enforcing their decisions, and the winner of the case has no means of enforcing the decision that he didn't have without the judge. Judges refer to precedent in making their decisions, and similar disputes tend to be resolved in similar ways. In virtually all cases when a judgement is issued its terms are payment of restitution to the plaintiff.

The Kapuku Papuans have developed a purely voluntary institution for dispute resolution, and so we may presume that they find their institutions more congenial than other alternatives they know about. Their institutions have converged on customary resolutions for known classes of disputes, and so we know that they find these resolutions generally fair and just (if not, they would not accept them -- their institutions are voluntary). Thus the Kapauku Papuans' istitutions agree with the first two claims of natural law: that people will naturally find some methods of conflict resolution more congenial than others, and that these institutions will converge on customary resolutions for known classes of disputes.

But the Kapauku Papuans might be anomalous; perhaps there are no other people with such institutions. That would mean that there is a sort of natural law for Kapauku Papuans, more accurately called a customary or cultural law. Or perhaps there are other people with such institutions, but the conventions that they evolve voluntarily are very different. That would mean that there is a natural law in a weak sense, a natural 'meta-law', a tendency to develop customary laws. Only if very different peoples in very different times and places evolve similar institutions whose content is similar would we have reason to think that the claims of natural law are true and have practical use.

Peoples who have institutions nearly identical to those of the Kapauku Papuans include tribal peoples on every continent, Dark Ages Anglo-Saxons, medieval Icelanders, colonial and modern Somalis, Renaissance European merchants, and 19th-century settlers of the North American west. Commonalities among the systems of dispute among these peoples include (but are not limited to): the disputing parties rely on the decision of a neutral third party of good reputation; judgements are pecuniary; the only sorts of disputes decided are torts; killing is a tort if not in self defense; stealing is a tort; fraud is a tort; judgements for unlawful killings are more expensive than most or all other torts; etc.

Natural law is a theoretic construct, but one that describes real phenomena with practical application to the affairs of real individuals.

3. [G*rd*n, 4/15] Natural law theorists are liars who pretend to derive natural law from evidence and reason but do not. Instead they cherry-pick evidence to justify their ambitions to acquire lots of power.

FALLACY: poisoning the well.

4. [Tito, 4/15] Natural law is unreal; it is a made up 'spook'.

FALLACY: bare assertion

5. [Tito, 4/15] If a huge majority of people agree to a standard then natural law is unnecessary.

Natural law is the claim that a huge majority have, do, and will agree to certain standards. If that is what in fact happens then either natural law exists or else empirical observation just happens by random chance to correspond with the predictions of the natural law theorists. No natural law theorist I know of claims to prove the existence of natural law rigorously; instead they say that natural law is a more likely explanation for the commonalities observed in argument (2) above than random chance.

6. [Tito, 4/15] Natural law theorists are collectivists.

FALLACY: Poisoning the well

7. [Tito, 4/15] Natural law is a religious ideology.

FALLACY: Genetic fallacy (whether the claims are true is independent of whether they are religious).

8. [Tito, 4/15] Science generates and tests hypotheses; natural law theorists instead believe that they will discover reality.

FALLACY: Straw man. Showing that natural law is not science disproves no claim made by natural law theorists.

9. [Luke Webber, 4/15] Natural law is indistingishable from 'the winners [of a battle] make the rules.'

Natural law theorists claim that some resolutions of disputes will naturally be more likely to be generally accepted as fair and just than others, thus more likely to actually resolve the disputes. The winners of a battle are in a position to impose whatever terms they like on the losers, regardless of whether anyone, even the winners, think that the results are fair or just. Doing that is unlikely to resolve disputes; it is likely to create them. If we are to believe Luke's claim that the two are indistinguishable then we must believe that the winners of battles will always and necessarily impose conditions that the losers just happen to find fair and just. I think this claim is quite unbelievable.

More rigorously, Luke might be claiming that natural law is logically equivalent to 'the winner [of a battle] makes the rules'. This claim is prima facie untrue: the claim of natural law is that people cannot simply make any rules they like and expect them to work, even if circumstances give them to power to impose those rules against the wills of others.

10. [Luke Webber, 4/15] Natural law does not exist because there is not universal rejection of any particular act.

FALLACY: Straw man. Natural law theorists do not claim that there is a set of specific acts that will be rejected by every single person who ever exists in all possible circumstances. It claims that human characteristics constrain the procedures that people will find acceptable for resolving disputes, and that human characteristics and the characteristics of those proceudres will constrain the space of possible resolutions.

11. [Chris Byler, 4/15] How do you know that what you think is natural law isn't just your personal preferences instead?

It might be. In order to determine whether it is, we must find a way to arrive a resolutions that do not depend on the preferences of an interested infividual. That is why a voluntary court is appealing. Even with voluntary courts, the results might be random, or they might reflect the particular prejudices of the judges. The fact that examination of the history of such courts shows broad voluntary acceptance of their decisions and broad commoanlity across times and cultures in many particulars persuades me that the commonalities represented do not simply reflect my particular preferences or the particular preferences of any single person.

12. [G*rd*n, 4/16] Nature does not care what people do.

FALLACY: Straw man. Nobody said it does.

13. [G*rd*n, 4/16] Natural law does not exist because human conventions are not completely reliable in producing all consequences, nor are they without variation.

FALLACY: Straw man. Nobody said they are.

14. [Tito, 4/16] Natural law refers to thoughts that particular individuals happen to have. The fact that a majority of individuals have these thoughts does not make them more natural than thoughts other individuals have. The opinions of some cannot be used to derive laws of behavior to all individuals.

Natural law refers, not the particular thoughts that particular individals have, but the observed tendency of people to find common procedures of dispute resolution, and the observed tendency of those procedures to produce common outcomes.

15. [Matt Ruff, 4/17] Natural law is no different from subjective preference.

Natural law is different from personal preference in the same way that market price is different from personal preference. As a seller in the (free) market you may wish to obtain an arbitrarily high price for your goods, but you can only obtain what people are willing to give. As a buyer you may wish to pay an arbitrarily low rpice, but you can only get the goods for what the seller is prepared to take. The price reflects the preference of both parties, but it is not the same as anyone's preference.

Similarly, natural law arises from what individuals prefer, but is not identical to it. You may wish a dispute to go your way, and no doubt your opponent wishes it to go his way, but at least one of you, and possibly both of you, will be disappointed in some respect with the decision of a judge. If the two of you accept the outcome voluntarily anyway, that is evidence that it is in accord with natural law.

16. [Matt Ruff, 4/17] The natural law position is indistinguishable from the observation that laws have consequences for people and people care about the consequences to themselves.

That's right, but is not a refutation of the claims. Rather, it is a restatement of some of them.

17. [Tito, 4/17] Natural law is simply religious superstition where God is replaced by 'Nature'.

FALLACY: Genetic fallacy.

18. [G*rd*n, 4/18] Natural law is simply community convention.

Rather, natural law claims that it is possible for a community for deveop conventions for dispute resolution, and that if the individuals of the community are free to accept or reject such conventions as they please then it is possible to predict the sorts of conventions that will emerge.

19. [Tito, 4/18] Natural law supporters advocate a system in which people converge on conventions for punishment. Such a system would be indistinguishable from a state.

My answer to this objection is the same as my answer to the previous one.

20. [Tito, 4/18] Natural law is indistinguishable from majority rule

'Majority rule' describes a convention in which the individuals in a group vote and the alternative preferred by the majority is taken as binding on every member. Natural law describes the hypothesis that there exist natural characteristics of human beings that contrain the space of possible methods of dispute resolution that people will find congenial. Tito argues that the method I suggest for discovering what natural law is (if it exists) amounts to majority rule, presumably because I expect a majority of people to find the results congenial. If I claimed that majority approval *defined* natural law, then he would be right. I do not. Instead, I expect a consequence of the congeniality of natural law provisions to be that a majority accept them as fair and just. But I allow the logical possibility that a majority could be mistaken in their ideas of what conventions will actually work best in terms of human nature.

21. [Tito, 4/18] Natural law is unfalsifiable.

Natural law theorists claim that the conventions people spontaneously and voluntarily choose to resolve disputes will not be randomly correlated across times and cultures, that the relation between conventions chosen and Pareto improvement is not random, that the relation between conventions chosen and adaptive fitness is not random, and that the relation between conventions chosen and solutions to N-person non-zero-sum games is not random. Any of these claims is in principle falsifiable.

22. [Tito, 4/18] Natural law is not what it is represented to be; instead it is the expression of a wish that law should be natural.

FALLACY: Ad hominem. Tito is ignoring natural law claims and saying that we are lying about what we are actually claiming.

23. [Paris, 4/18] The logical antecedents of natural law (i.e. right, wrong, evil, justice, etc.) are purely subjective

FALLACY: Non sequitur. Even if true (and natural law theorists claim it isn't), it does not follow from the subjectivity of logical antecedents that an effect is not objectively real; c.f. the discussion of market price above.

24. [G*rd*n, 4/19] Natural law is a vague concept for which few or no claims can be made

The claims described in (2), (5), (9), (11), (14), and (18) above are reasonably precise, falsifiable in principle, and, if correct, have significant practical implications. For example, in (2) I claim that many very different peoples have spontaneously and voluntarily developed and accepted very similar institutions for dispute resolution, and that those institutions have developed very similar sets of rules of resolution. If true, that implies that another people in another time and another place could adopt such institutions (if not forcibly prevented) and that they would have positive practical implications for those people's daily lives.

25. [G*rd*n, 4/19] Unlike other kinds of laws, natural law does not consist of specific laws about specific things

English common law does not consist solely of specific laws about specific things. Instead, it consists of a method of arriving at resolutions of disputes together with a reference body of previously-resolved disputes for comparison. International law is much the same. Positive law more often consists of specific laws about specific things, but it also consists of laws that are not specific laws about specific things, such as the tenth amendment to the US Constitution. Thus, the observation that natural law doesn't consist of specific laws about specific things is no objection to its characterization as law.

26. [Tito, 4/19] Natural law is pseudoscience because it purports to identify right and wrong by scientific means. Scientific means cannot be used to identify right and wrong.

FALLACY: Straw Man. The claim of natural law is not that right and wrong can be identified by scientific means. [Tito's claim is an interesting bare assertion; how does he know?]

27. [Tito, 4/19] Natural law obliges individuals to anticipate all the ways in which they might be found in disagreement with religious zealots and openly disavow them.

Natural law imposes no such obligation. I challenge Tito to show how any claim on behalf of natural law leads to such a conclusion. If natural law exists it constrains the resolutions, and methods of resolution, of disputes that people will voluntarily accept as fair and just, that is all.

28. [Tito, 4/19] Voluntary courts require disinterested third-party judges, but there can be no disinterested third-party judge if people in the community believe that natural law exists.

Again, I challenge Tito to show how this conclusion follows from any claim on behalf of natural law. A disinterested judge in a voluntary court is any person that the two parties to a dispute agree can be expected to render a fair and just decision on their behalf. Tito would have us believe that no such person can exist, and yet many peoples in many times and places have used such procedures evolved spontaneously and voluntarily, which means they must have been able to agree on such judges.

29. [Tito, 4/19] Voluntary courts will lead to lynchings.

They have not. Historically, defection from judgements is rare, and execution almost unknown.

30. [Tito, 4/19] Voluntary courts will lead to the establishment of a state.

I challenge Tito to show that this is true. Systems of voluntary courts have existed in some circumstances (e.g. among the Kapauku Papuans and among the clans of Somalia) for centuries without turning into states.

31. [Paris, 4/19] Moral codes are arbitrary.

FALLACY: bare assertion

32. [G*rd*n, 4/20] mikel's reference to Nazis demonstrates that he has no reason or evidence with which to support his case.

FALLACY: argumentam ad populam

33. [G*rd*n, 4/20] In order to test natural law claims we would have to examine all human history and all acts defined as crimes by anyone. Unless we do that natural law is a religious belief. FALLACY: Genetic fallacy (G*rd*n implies that unless natural law claims are a certain kind of claim then they are not true.)

34. [Tito, 4/20] There are no common standards.

See arguments (2) and (28) above.

35. [Tito, 4/20] If there are common standards, they are irrelevant

See arguments (2) and (24) above.

36. [Tito, 4/20] If there are relevant common standards they will be used to repress individuals.

FALLACY: argumentam ad misericordiam. Tito argues that natural law claims cannot be true because it would be bad if they were.

37. [G*rd*n, 4/21] No scientific proof of the existence of natural law has been offered. The claim has not been scientifically confirmed.

FALLACY: Straw man. No one claims that natural law is a scientific hypothesis. (In any case, science does not confirm; it disconfirms.)

38. [G*rd*n, 4/21] Supporters of natural law do not agree on its contents.

FALLACY: Straw man. The claims of natural law do not entail agreement among its supporters on what policies are in accord with natural law. For example, if the claims of natural law are true it could still be the case that some or all people are mistaken about some or all policies' relation to natural law.

39. [G*rd*n, 4/21] The existence of something cannot be proven if it cannot be defined.

FALLACY: Red herring. This observation is true for a certain kind of proof that is wholly irrelevant to the kind of claim that natural law is. Neither can it be proved that dogs or emotions exist in that sense of proof. Supporters of natural law make no stronger claim for the existence of natural law than would be uncontroversial for dogs or emotions.

40. [Matt Ruff, 4/21] There are acts that some people think are wrong and other people do not.

FALLACY: Straw man: natural law claims do not entail that there will be no controversy over any acts.

41. [G*rd*n, 4/22] The concept of natural law is incompatible with freedom, peace, and equality. It leads to rule by an elite that knows the law.

I challenge G*rd*n to show that this conclusion follows from any claim on behalf of natural law. I claim that voluntary court systems will reflect natural law. Such court systems have existed for centuries in circumstances where their continued existence depended upon the voluntary participation of free individuals. It is hard to understand how a principle incomaptible with freedom could survive for centuries on the sufferance of free individuals.

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Natural Law ,Monkey Law

Ok now I think I have some understanding of what you call natural law. There is really nothing very mysterious about it. It is like the behaviors of many animals who avoid inter species violence for the most part since the consequences of serious injury are usually starvation. So they substitute bluff, display,and shifting alliances and other behaviors to assert their position. There is no reason to think the same cooperative strategy might not have evolved in humans along with many other behaviors that on average promote survival. There is no reason to think this innate law is inherently superior to later more formal systems of law such as Common Law, Islamic Law or US Constitutional Law. To say that it has to be superior is to commit a naturalist or noble savage fallacy

Dave

Hmmm...

To say that it has to be superior is to commit a naturalist or noble savage fallacy

I did a word search of the entry that you are responding to. The only place that the word "superior" shows up is in your own comment.

No I don't think you do understand natural law

Well no you don't understand even this one guys position on natural law. He never claimed it was "superior" just natural. Your claim that his conception of natural law commits the naturalist fallacy fails because as per his point 23 he is not making claims about right and wrong. What makes you think Common Law is not a form of natural law, or that our Constitutional law was originally based on natural law concepts? Note that his is just one of many positions on natural law.

Kapauku Papuans , the Ideal?

"Natural law theorists claim that some resolutions of disputes will naturally be more likely to be generally accepted as fair and just than others, thus more likely to actually resolve the disputes"
It is said some ways are fairer and more just so that sounds superior to me. I am really just trying to understand. I have no vested interest in any form of law and would be in favor of the best. Is primitive best? Or has development occurred for good reasons. Should we just return to the ways of the the Kapauku Papuans . My question has not been answered.
Dave

What question? You didn't ask any.

“My question has not been answered”

Be fair here Dave. You didn't ask any questions in your first comment. Do you expect answers to questions that are unasked? I think it only natural that this is an unreasonable and unfair expectation. Thus any law you might invent that requires people to answer unasked questions would be against natural law. They would go against human nature. People can't read minds.

I can't answer for this guy because I don't share his conception of natural law. It seems, and I haven't read anything but his article, that he is arguing for more than a traditional view of natural law. He seems to be arguing that anarchy is how to achieve natural law. That is, he seems to be confusing the means of discovering some fact about the world with the fact itself. I'm not an anarchist and thus don't believe in this. I'm not sure if every anarchist would buy it either. Frankly, I'm not sure I understand his position since the article was dealing with objections to his position and not fully stating it. I'd have questions too. So I don't blame you for that.

Just so you know where I am coming from although I am highly sympathetic to libertarian arguments I believe certain things that run counter to some libertarian arguments. Thus I am no longer calling myself a libertarian. I don't buy traditional criticisms of libertarianism but have come up with some of my own that I find compelling.

So far I haven't answered any of your now explicit questions. I will do so now.

"It is said some ways are fairer and more just so that sounds superior to me."

Read the sentence very carefully because it is subtle. He’s claiming that some ways are “… more likely to be generally accepted as fair and just than others, and thus more likely to resolve disputes”. Certainly the rule “Brian is always right” is less likely to resolve disputes than other rules. Do you disagree with that? I don’t disagree with the sentence however I think it is very dependent on the beliefs of those involved. That’s where his mistake lies. Muslims may find Islamic law compelling and accept it as “fair and just” but I don’t, and precisely because of my beliefs.

I have all sorts of reasons I think Islamic laws is not fair and just. I don’t think it is universal, it has double standards, it is non-proportional, it is based on a fallacious appeal to authority, it claims inerrancy, etc. This isn’t a problem for Muslims because they believe certain things, on faith, that make these objections evaporate.

As a specific example I was communicating with a Muslim over the internet who was posting from Saudi Arabia, and told him that one reason Islamic law is not just is because it is not proportionate. I gave as an example chopping off the hand of someone who steals, especially in light of all the complications involved such as mistaken identity, false accusation, emergency situations, etc. I kid you not that his response was it was no problem because anyone who had his hand chopped of who was not guilty was guaranteed a place in heaven.

This is a big problem not only for this particular anarchist but open borders libertarians in general. It’s quite obvious that it is impossible for him and me to resolve our disputes in a way that both of us will find fair and just. Furthermore, I would say that he’s the one who is wrong, and also that his method of determining law is not a natural law method. Islam is very “State” centric so this is not surprising. It doesn’t recognize the concept of individual rights. It doesn’t even recognize my right to exist in this world.

I have what seems to be a completely different conception of natural rights than this fellow quoted by Constant. My conception doesn’t share this particular flaw.

I view moral systems as analogous to competing organisms. I believe that moral systems need to have sufficient numbers of adherents who share some base set of common beliefs for them to work. I believe that there is something we could label as human nature. I believe that moral systems that tend to respect that nature tend to do better at improving the lives of it’s adherents than others.

I also believe that individual people can have one foot in one moral tradition while having another in a different tradition and still function. Thus you can have Muslims who move to the US function under our system which originated in a natural law tradition, yet have core beliefs contrary to that. This is possible because of the weight of all the other individuals in the system, and the inertia of existing law, balancing out the individual Muslim’s beliefs. With sufficient quantities this can however be disturbed and the whole system can shift to a new equilibrium point that is not based on natural law.

This level of my beliefs is more clearly understandable as scientific. I’m not making any judgments as to which moral system is “superior”. I’m just stating that there are moral systems, and I count even the mafia as a moral system in this regard.

I do and can move into the normative, and I believe I can do so on sound scientific grounds. What I don’t end up with however is a claim that any one particular moral (or legal) system is normatively the very best. I do believe however that there are natural laws that should be respected if we want certain results.

As an example, Communism, is one such moral system. I has various flaws which are due to a failure to respect human nature. Despite their very best efforts the communist were not able to set up what was to them the moral acme of the abolishment of property rights without severe consequences.

“Is primitive best?”

No

“Or has development occurred for good reasons.[?]”

Yes, but that is not an argument against natural law. My conception of natural law entails the idea that we to not necessary have the best system. In fact, I am a law evolutionist. Most advocates of natural law I have read in more detail see it as an unfolding discovery process, even those who believe it is God given. I’m atheistic to every religion I’ve encountered so I don’t share the belief that natural law is based on the authority of a God. The closest I come to believing in a god is that I believe there are limits set by reality and logic.

“Should we just return to the ways of the the Kapauku Papuans?”

No

I wouldn’t go by this one article to get an understanding of natural law. Also since we learn more about human nature over time I think it only natural that our understand of natural law will grow with time. Thus if you read earlier conceptions and arguments for natural law they may be flawed in this regard.

People adapt to their political environment

Brian, you give the following example:

As a specific example I was communicating with a Muslim over the internet who was posting from Saudi Arabia, and told him that one reason Islamic law is not just is because it is not proportionate. I gave as an example chopping off the hand of someone who steals, especially in light of all the complications involved such as mistaken identity, false accusation, emergency situations, etc. I kid you not that his response was it was no problem because anyone who had his hand chopped of who was not guilty was guaranteed a place in heaven.

This is a big problem not only for this particular anarchist but open borders libertarians in general. It’s quite obvious that it is impossible for him and me to resolve our disputes in a way that both of us will find fair and just.

You claim that this is a counterexample to this claim:

He’s claiming that some ways are “… more likely to be generally accepted as fair and just than others, and thus more likely to resolve disputes”.

I do not think that your example is a genuine counterexample. It would be a genuine counterexample only if Mikel had written, "if you were have an international conversation between two people in different countries who had grown up in two very different political environments imposed by two different states, then they would quickly come to an agreement about what was fair and just.

That is not the claim. There is a lot of adjustment that goes on in a society. Individuals learn the ropes and internalize the rules, take the customs of the society to heart. This process is not immediate and can't be expected to occur in an international phone conversation or online conversation. This process is part of how people really do come to agree about what is fair and just. Your international discussion with the Saudi has not allowed this process to occur and so cannot be taken as a legitimate counterexample to the claim.

Of course, this point which I have just made does suggest some other objections. I admit that and am prepared to deal with at least the ones I have thought of, but I believe that it handles your own above-stated objection. (Actually, I suspect Mikel would have an even better and stronger response to your objection, because as I recall he has an interest in the Lex Mercatoria or Law Merchant, which was an international law that people from widely varying cultures did, I think, agree on, so evidently people were able to set aside their cultural differences for the purpose of establishing the lex mercatoria, despite the apparent irreconcilability of legal standards that, e.g., your conversation with the Saudi appeared to reveal. However, I don't know enough about the details to make that argument myself with confidence.)

One new objection that my response to your objection raises is this: if people adapt to their local community's legal environment, then doesn't this allow local communities to adopt standards that are strongly at odds with natural law? Doesn't this, in turn, suggest that there is no natural law, in the sense described?

My answer to this new objection is that, while people do adapt to their local legal environment, this does not cancel out all forces for change that would tend to shift the legal environment closer to natural law over time. There can be pressure, even soft pressure, to change local law in the direction of natural law. Criminals under the law, for starters, are always a source of opposition to law, and in response to them the law may budge.

The law that exists among the Saudis is indeniably enforced by the Saudi state. So it is undeniably not an example of customary law. The natural law position does not deny that states are able to impose laws strongly at odds with natural law. On the contrary, I don't remember whether Mikel brought it up here, but anyone who argues for the existence of natural law has, in my experience, been ready to acknowledge that state law is often sharply at odds with natural law. The natural law position, then, in any version I have heard it, acknowledges phenomena such as the phenomenon of Saudi law, and for this reason the fact of Saudi law does not constitute a counterexample to the position in any version.

I already said I don't see Islam in the natural law camp

Constant,

I thought I was clear that I did not believe Islam was an example of a natural law tradition. So of course I was not using it as something that shows that natural law can't work. I wasn’t attacking from the angle you thing I was. I said it was problematic for anarchists and open borders libertarians, not natural law theorists.

My point was only about the notion that natural law processes are bound to settle on the same results in the long run and that anarchism was somehow sufficient or neccesary. I don't think that is true and it is very much dependent not only on the beliefs of the individuals within the society but also upon the neighboring societies.

Islamic societies like many others have had processes for developing laws that share the qualities that were being touted in this article. In fact, there was a poster on this very web site saying what a anarchist heaven Somalia was and is. As far as I know next to none of these traditions have come up with the notion of individual rights.

It's perfectly possible for two distinct cultures to evolve along the lines outlined in this article and yet end up with incommensurate systems of law. To use an analogy just because two herbivorous species have evolved to eat grass doesn't mean that they can breed or even that their solutions to dealing with the material will be the same. There are many ways to deal with grass eating and some of the ways are appropriate or not depending on other neighboring species. One can for instance have a huge gut with a long intestine but then if you are small and have to run fast to get away from predators it might be better to take up copraphagia.

History shows that societies of Muslims even when their law is being generated by trusted individuals in an anarchistic way do not arrive at universally just law, and certainly not law based on individual rights. My understanding is that they do share many of the characteristics outlined in the article, and still have horrible punishments like honor killings. Much of tribal law is based on communal expectations that we Americans do not share.

Otherwise, I don't have a big problem with what you have written.

Responses

I thought I was clear that I did not believe Islam was an example of a natural law tradition.

Correct and I did not misinterpret you on that point.

So of course I was not using it as something that shows that natural law can't work.

You were using it in some capacity to attack MIkel's natural law position. There is more than one way to do this. Using something to attack that natural law position does not necessarily require that you assume that it is an example of natural law tradition. I believe I correctly identified how you were using it to attack the position, and responded accordingly.

I wasn’t attacking from the angle you thing I was. I said it was problematic for anarchists and open borders libertarians, not natural law theorists.

You were attacking the particular position that Mikel was proposing. You were not merely attacking some position that had no relationship to Mikel's comments. However I'm not going to get into a detailed blow by blow who-meant-what about the discussion thus far. Instead I'm going to respond to your new arguments.

My point was only about the notion that natural law processes are bound to settle on the same results in the long run and that anarchism was somehow sufficient or neccesary.

Let's keep to the particular claims that Mikel raised. If your comments are not relevant to Mikel's claims then your entire commentary is out of place, so I am going to assume that you intend in some way to address Mikel's described position (he describes it in his opening paragraphs).

I don't think that is true and it is very much dependent not only on the beliefs of the individuals within the society but also upon the neighboring societies.

Beliefs are certainly important but they are not decisive. Customary law is the outcome of a process much as prices are the outcome of a process (a market process). The price of a good is not a direct result of some majority belief about what the price should be. Rather, the prices of the good is the outcome of a process which is most easily understood in terms of supply and demand. Rather than beliefs determining prices, the causality is the other way around: prices determine beliefs. The long-established prices of goods come to seem natural and right. This can, of course, lead to problems when market conditions suddenly change, causing prices suddenly to change. The new prices seem “wrong”. This mismatch between belief and current price, however, does not mean that belief about just price is truly independent of market price. Belief about just price is still the reflection of the long-established market price. For example, gasoline seems “too high” today (to some) only in relation to what seems the “right” price of gasoline, and this in turn is nothing more than the psychological internalization of the long-established market price of gasoline over the years.

This also answers your “Furthermore” comment.

Islamic societies like many others have had processes for developing laws that share the qualities that were being touted in this article. In fact, there was a poster on this very web site saying what a anarchist heaven Somalia was and is. As far as I know next to none of these traditions have come up with the notion of individual rights.

“The notion of individual rights” is an intellectual idea. The question is not whether people have this idea. The question is whether and to what extent the actual law conforms to natural law. If people's property is respected, etc., etc., then it does not matter whether the “notion of individual rights” has ever occurred to anyone. Similarly, markets existed long before Adam Smith and the other economists developed notions that are commonly used nowadays to think about markets.

It's perfectly possible for two distinct cultures to evolve along the lines outlined in this article and yet end up with incommensurate systems of law.

It is also perfectly possible for somebody to try to add two large numbers and come out with an incorrect results. This does not prove that there is no such thing as a correct (and therefore natural) result. This is an extremely important point. The natural law claim is not a claim that can be disproved merely by the possibility of departures from natural law here and there.

To use an analogy just because two herbivorous species have evolved to eat grass doesn't mean that they can breed or even that their solutions to dealing with the material will be the same. There are many ways to deal with grass eating and some of the ways are appropriate or not depending on other neighboring species. One can for instance have a huge gut with a long intestine but then if you are small and have to run fast to get away from predators it might be better to take up copraphagia.

It is conceivable that there could be more than one law which is natural in the sense of being optimally congenial. It is, therefore, an empirical claim that this is not the case. The (strong) natural law position understands this: this is what makes the position empirical. The weak natural law position (which Mikel also mentioned) allows for there to be more than one natural law, e.g., more than one law which is maximally congenial.

History shows that societies of Muslims even when their law is being generated by trusted individuals in an anarchistic way do not arrive at universally just law, and certainly not law based on individual rights. My understanding is that they do share many of the characteristics outlined in the article, and still have horrible punishments like honor killings.

Actually, it is my own view that there is more variety in intra-family law than in inter-family law, and that these are best treated as two distinct areas of law. People who are related to each other by blood are not in the same kind of relationship as people who are unrelated, and different rules are needed for the two cases. Thus, the question of who has what power over whom within a single family is a question that might not be answered by natural law – if natural law concerns only inter-family justice.

Much of tribal law is based on communal expectations that we Americans do not share.

This does not mean that it does not conform to the same natural law. Two particular sets of law may be different from each other while conforming to the same principles. For example, the extended phenotypes of the members of a tribe may be different in shape from the extended phenotypes of people in a modern society, because they are engaged in different activities and the extended phenotype is the material manifestation of activity. Thus a different set of laws may be required to protect the extended phenotype against predation. Same principle, different laws.

For a trivial example, if some tribe lived entirely on the water, there might be an intricately detailed system of laws dealing with boats and absolutely no customary law pertaining to ownership of land. If another tribe lived entirely in the middle of a continent and saw no water other than rainfall, they might have the opposite. But both could on a deeper level be a reflection of the same underlying natural law.

Maybe this will help

"I am going to assume that you intend in some way to address Mikel's described position (he describes it in his opening paragraphs)."

Yes he does describe it and I particularly liked this part as I read it:

"It's also used to refer to an imagined body of custom that people would find more congenial than any alternative, though we may not know exactly what customs those are, and it's logically possible that there may be more than one such set of customs. It's also used to refer to certain specific bodies of received custom that are generally believed to approximate natural law in the second sense.”

However as I proceeded to read the rest I got the distinct feeling that this “more than one set of customs” were not in his mind different in any important way. They weren’t truly different solutions to the same problem but instead different variations on the same solution. Now I haven’t read much of his stuff so maybe I’m wrong but I got the distinct impression that he imagines some specific set of attributes as being the one true form of natural law, with these different sets of customs only being approximations to this platonic ideal.

“Commonalities among the systems of dispute among these peoples include (but are not limited to): the disputing parties rely on the decision of a neutral third party of good reputation; judgments are pecuniary; the only sorts of disputes decided are torts; killing is a tort if not in self defense; stealing is a tort; fraud is a tort; judgments for unlawful killings are more expensive than most or all other torts; etc.”

As an engineer it is clear to me that solutions to problems do not have to share such commonalities. The fact that there are such commonalities only shows convergent evolution to the same solution to the same problem. It does not however mean that there is any one particular best solution. Other solutions are possible.

As a specific example, I don’t see why a natural law system need necessarily to always come up with a solution of “judgments are pecuniary”, or “judgments for unlawful killings are more expensive than most or all other torts”. Such decisions can and should be highly dependent on cultural circumstance. If it so happens that society is structured, unlike in tribal societies, with large differences in wealth then having all judgments be pecuniary including ones for murder may not be such a good idea. Peoples moral systems are after all strategies on how to live and optimal strategies shift with shifting technology and belief.

Law can be “natural” without being some static idea. I think that certain features will be common across all cultures by the very fact that cultural differences cannot be so great as to erase certain commonalities.

The shape of what would be natural law it is highly dependent not only on general cultural technological innovations but also those that pertain to law enforcement, incarceration, criminal investigation, and the like. It may not make sense to lock someone up in a primitive society whereas in a modern one it may make perfect sense.

As a specific example, it is legal to sell water hyacinths in northern states whereas it is outlawed in southern ones. Reason being is that they present no danger in the one area whereas in the other they present considerable risk. This is natural in that society should be able to outlaw behavior that presents unreasonable risks to the property of others. One can argue that since there is no such risk in the north there sale should be legal because there is no grounds upon which to outlaw them. In the south however the situation is different.

I don't have much to complain about the rest of your post. I kind of agree with you. I think there are real principles involved that should be followed, we don't just make up the law, but I think there are different potential solutions to the same problems.   Also that different societies have differing environments.   I think a country like Israel is in a completely different situation than say Canada with regards to it's neighbors.   This may require a differing set of laws.   

It's like your water vs. land based cultures.  But in this case the underlying problems faced are not in fact solvable by what are similar principles.   In fact in one case there may not be any problem whatsoever.   How can a non-problem be similar in any way to an actual problem being solved by the law.

Well I take that back about not having much to complain about.   I definately don't like your stance on intra vs. inter family law.     I think intra-family issues can have repercussions for those external to the family that actually gives them the right to interfere in those "internal matters".    Treating a child viciously is more than not likely to cause the child to lash out at random and not just at his family.   That impinges on me and that is what gives me the right to interfere.

If I met and fell in love with a girl from one of these wacked out religious families that believe in honor killings and she decided to pick me over the family then you don't think she or I have the right to bring the dispute to others?    How is that different than if she makes the decision on her own that she no longer believes in her religion and wishes to perhaps date an atheist or a christian?    Why does her family get to kill her? 

 

A couple more details

The other impression I got was that Mikel was pushing some form of anarchism as that platonically true form of natural law. Perhaps I was reading to much into it.

I am aware that one need not have a theory about something in order to use it. After all bats use sonar without understanding it so why can’t humans use natural law without understanding it. Nor does something need to be understood to be "invented" by self organizing systems.

However the whole point of natural law theory is to move to the meta-level and use such understanding to guide our decisions. If this isn't a benefit then why waste time discussing natural law. Natural rights theory would be no more necessary than training manuals for bats on how to echolocate moths. We need not even worry about what processes take control for surely the best will win out automatically, in which case any charges of committing the “naturalist fallacy” become credible.

That’s part of my point. This is an evolutionary process and natural rights theory is in fact a mechanism by which the evolutionary process is controlled. Primitive societies didn’t evolve this extra meta-level of control. I mean this in the same sense as an when our ancestors evolved say a nuclear membrane, or the centrosome to control genetic material. Belief in the idea of natural rights does influence how our laws evolve.

Furthermore

If the majority in a society believes in having a "State" settle issues of justice and considers that "fair and just" then letting them freely pick how to proceed will end up with them selecting the state, especially since it is unfairly subsidized. Beliefs matter a whole hell of a lot in getting to the point of having an anarchist or libertarian society. So in that sense my example does directly present a problem to anyone arguing for natural law being defined as what results naturally from a process of letting people pick who they want to settle their disputes, etc. It's not clear at all what the outcome would be or how it would evolve.

Intorducing New Improved - Natural Law

I assumed that the purpose of the original post was to promote natural law and to defend it from its critics. My response was to raise an additional possible criticism, at which time instead of answering it, I was told the original post did not advocate natural law above other types of law. My first comment requested a defense of the claim that natural law is not a retreat into primitivism and to present evidence that primitivism is best.
In primitive times as illustrated in the original article, arguments whether a canoe or tomahawk belongs to which tribesman could logically and successfully be mediated by a trusted third party such as a tribal chieftain. On further reflection, I am beginning to think that natural law in its full form probably did not exist in primitive societies. The mediator of conflicts would probably not adopt our brand of egalitarianism as, for example, if a woman tried to have her claim to own a tomahawk mediated. She would probable not get what we would call natural justice. The mediator could also rule in favor of his brother in law because he might say the tomahawk was needed for the family, or was needed to prepare sacrifices to the gods who would send famine if they were not placated. These are things that would offend our new, modern sense of egalitarianism.
Thus natural law may be even more susceptible to the noble savage fallacy than I had originally thought. Looking at all the exceptions and convolutions others discussing this subject bring up I think there is little historical evidence that natural law has been widely practiced out side the West. Still less has it been practiced until the development of a complex law base affluent society we inhabit today, a far cry from primitive, spontaneous natural law. It may be that natural law was lurking beneath the surface even when slavery was practiced and women were chattels to their husbands, but this claim also needs to be buttressed by further argument, which perhaps you can supply.
It does seem to me that egalitarianism is the mother of natural law. I doubt that egalitarianism has always been as rampant as it is in our culture. If other cultures stressed other factors it might be because of their lack of affluence. I think our concern about egalitarianism is contingent upon the fact that our culture is well to do. If we were starving we would be more worried about feeding ourselves and our families, placating the gods and if this were at the expense of other people, so be it.
Dave

Improved?

“I assumed that the purpose of the original post was to promote natural law and to defend it from its critics. “

Yes, it was but it was written on an anarchist forum so you should consider that it might be advocating a particular slant on the subject.

“My response was to raise an additional possible criticism, at which time instead of answering it,”

Your criticism is only valid against an anthropological defense of natural rights law, if even then. I’m not sure that it’s valid or not as I don’t yet understand the guys full position. I can assure you he is not trying to defend slavery or treatment of women as chattel. That does not however mean his argument is not weak in this regard, and I can’t tell at this point.

“I was told the original post did not advocate natural law above other types of law.”

Well I don’t think natural law superior. Instead what I think is that law that isn’t based on natural law, isn’t truly law, but is instead merely proscription, or forced inscription. Therefore, I believe it has no hold upon me and I am free to disobey it. Thus any law that states that I cannot hide escaping slaves is in fact not a law at all. Nor is the law, for instance, that non-Muslims cannot build their houses higher than Muslims, or that I cannot blaspheme against other religions. None of those are laws that can be arrived at by proper use of reason.

Since that is what I believe and the original article made no claims of “superiority” I responded in that regard.

You are aware that it is possible (although highly unlikely) for some totalitarian leader, as an individual, to work out a consistent set of natural laws and then impose it on everyone? It’s also possible (and likely) that a long process of evolution of natural law could be co-opted by some other system that doesn’t use evolutionary discovery, and then apply a different discovery system that is not compatible with natural law. When compared against a more primitive version of say common law such a system would be superior and that particular instance. Thus a simple claim of inferiority/superiority is not appropriate. Natural law systems are meta-superior, not necessarily superior at the first level.

Also since such systems are evolutionary, and such evolution highly contingent on historically occurring mutation, one can not say for sure that a legal system based on natural law will always evolve in a superior way to say a legal system produced by edict. It’s always a possibility. Especially since the person pronouncing the edict can wholesale copy any existing legal system he wants. Singapore comes to mind.

Have you ever hear a biologist talk about bacteria vs. humans in an evolutionary context? If you were to ask him which were more “evolved” he would tell you that they are both equally evolved since they both most likely share the same ancestor. Asked which was “superior” he would also say that from an evolutionary perspective the question made no sense.

If a dictator rules that murder is a crime then that really is not producing anything new. We already knew it was a crime via moral reasoning and regardless of whether there is nor is not any law established it is still a crime. Do you think that if you met someone on an island that was not claimed by any legal jurisdiction that all of the sudden it becomes acceptable to murder him? Of course not. Likewise slavery was always a crime even if it was not recognized as such.

What natural law claims is that it is discovering laws that are objectively true regardless of what positive law. That claim means that in a true sense positive laws can be wrong. That includes any positive laws that exist in any system including those constructed on the natural rights model since, after all, humans are fallible.

“My first comment requested a defense of the claim that natural law is not a retreat into primitivism and to present evidence that primitivism is best.”

No it didn’t. It made no such request. It was in fact a comment filled with assertions that seemed to show someone totally ignorant of the history of natural law and its great achievements. Your first comment had the derogatory title “Natural Law, Monkey Law” and consisted of on long paragraph solely constructed from assertions.

You may have intended to ask a question but you did not. Your actions are plain for all to see. Your intents are not and those have to be inferred. Based on that first comment and what you should probably be aware of, the seeming intention of that post was to smear and not to bring up some clearly apparent problem with his argument.

When you wrote that post were you totally unaware of traditional natural rights defenses? Are you truly unaware of the defense from the idea of individual rights? Do you really think that the broader tradition of natural rights and natural law is pro-slavery or takes an anthropological approach to defense? Are you totally unaware of the normal defense of natural law as something discovered via reason?

Are you from the US or somewhere else? If from the US what state are you from. Something is very fishy here. Do they not teach US history where you come from? Ever hear of John Lock, Thomas Jefferson, or the Declaration of Independence and the Constitution?

How can you believe that the broader tradition of natural law is in any way supportive of treating women as chattel or even slavery? How can you believe it is a retreat into primitivism, or even that the attack sticks to the broad tradition of natural law?

Sure the attack might work against anarchy, or a particular defense of natural law, but that is not where you are directing it. You are directing it against all of natural law.

” In primitive times as illustrated in the original article, arguments whether a canoe or tomahawk belongs to which tribesman could logically and successfully be mediated by a trusted third party such as a tribal chieftain. On further reflection, I am beginning to think that natural law in its full form probably did not exist in primitive societies. The mediator of conflicts would probably not adopt our brand of egalitarianism as, for example, if a woman tried to have her claim to own a tomahawk mediated. She would probable not get what we would call natural justice. The mediator could also rule in favor of his brother in law because he might say the tomahawk was needed for the family, or was needed to prepare sacrifices to the gods who would send famine if they were not placated. These are things that would offend our new, modern sense of egalitarianism.”

There are several definitions of egalitarianism. The natural law version holds that all humans have equality of authority. In fact, natural law is the source of that modern sense of egalitarianism.

Are you speaking of some other sense of egalitarianism, like the Marxist one of equality of outcome? If so that is actually the more primitive state. The tribal potlatch and tribal notions of rights to the goods of relatives being examples of such mandatory spread the wealth mentality.

“Thus natural law may be even more susceptible to the noble savage fallacy than I had originally thought.”

Do you always base your understanding of broad traditions on comments found on usenet forums? Do you not understand that I am attacking a single aspect of a single argument outside the mainstream that has more to do with support of anarchism than natural law? Do you understand also that I’m not even sure I understand the guys position. He’s not even here, and if he were I might just be talking past him and not getting what he’s trying to communicate.

“It does seem to me that egalitarianism is the mother of natural law.”

If you believe this then why did you make your first comment and sentence I quoted above just before this one? Egalitarianism is certainly higher in the chain. Reason is the true mother.

“If other cultures stressed other factors it might be because of their lack of affluence.”

Not with regard to the issue of chattel wives and slavery.

“I think our concern about egalitarianism is contingent upon the fact that our culture is well to do.”

I’d say not at all. What do you mean? These ideas were not developed in modern times. In fact causation is reverse, we are affluent because of our attempts at producing equality of authority. Which kind of egalitarianism concerns are you talking about, equality of authority, equality of outcome, equality of opportunity, or equality of ability?

”If we were starving we would be more worried about feeding ourselves and our families, placating the gods and if this were at the expense of other people, so be it.”

There are many shades of difference between affluence and starving. Historically it hasn’t been starving people who turned to slavery. So I don’t know what you are talking about, or why on earth you would think that. I suggest you learn some history. Those exploiting others have tended to be the powerful and not those on the edge of starvation.

“I assumed that the purpose of the original post was to promote natural law and to defend it from its critics. “

Yes, it was but it was written on an anarchist forum so you should consider that it might be advocating a particular slant on the subject.

“My response was to raise an additional possible criticism, at which time instead of answering it,”

Your criticism is only valid against an anthropological defense of natural rights law, if even then. I’m not sure that it’s valid or not as I don’t yet understand the guys full position. I can assure you he is not trying to defend slavery or treatment of women as chattel. That does not however mean his argument is not weak in this regard, and I can’t tell at this point.

“I was told the original post did not advocate natural law above other types of law.”

Well I don’t think natural law superior. Instead what I think is that law that isn’t based on natural law, isn’t truly law, but is instead merely proscription, or forced inscription. Therefore, I believe it has no hold upon me and I am free to disobey it. Thus any law that states that I cannot hide escaping slaves is in fact not a law at all. Nor is the law, for instance, that non-Muslims cannot build their houses higher than Muslims, or that I cannot blaspheme against other religions. None of those are laws that can be arrived at by proper use of reason.

Since that is what I believe and the original article made no claims of “superiority” I responded in that regard.

You are aware that it is possible (although highly unlikely) for some totalitarian leader, as an individual, to work out a consistent set of natural laws and then impose it on everyone? It’s also possible (and likely) that a long process of evolution of natural law could be co-opted by some other system that doesn’t use evolutionary discovery, and then apply a different discovery system that is not compatible with natural law. When compared against a more primitive version of say common law such a system would be superior and that particular instance. Thus a simple claim of inferiority/superiority is not appropriate. Natural law systems are meta-superior, not necessarily superior at the first level.

Also since such systems are evolutionary, and such evolution highly contingent on historically occurring mutation, one can not say for sure that a legal system based on natural law will always evolve in a superior way to say a legal system produced by edict. It’s always a possibility. Especially since the person pronouncing the edict can wholesale copy any existing legal system he wants. Singapore comes to mind.

Have you ever hear a biologist talk about bacteria vs. humans in an evolutionary context? If you were to ask him which were more “evolved” he would tell you that they are both equally evolved since they both most likely share the same ancestor. Asked which was “superior” he would also say that from an evolutionary perspective the question made no sense.

If a dictator rules that murder is a crime then that really is not producing anything new. We already knew it was a crime via moral reasoning and regardless of whether there is nor is not any law established it is still a crime. Do you think that if you met someone on an island that was not claimed by any legal jurisdiction that all of the sudden it becomes acceptable to murder him? Of course not. Likewise slavery was always a crime even if it was not recognized as such.

What natural law claims is that it is discovering laws that are objectively true regardless of what positive law. That claim means that in a true sense positive laws can be wrong. That includes any positive laws that exist in any system including those constructed on the natural rights model since, after all, humans are fallible.

“My first comment requested a defense of the claim that natural law is not a retreat into primitivism and to present evidence that primitivism is best.”

No it didn’t. It made no such request. It was in fact a comment filled with assertions that seemed to show someone totally ignorant of the history of natural law and its great achievements. Your first comment had the derogatory title “Natural Law, Monkey Law” and consisted of on long paragraph solely constructed from assertions.

You may have intended to ask a question but you did not. Your actions are plain for all to see. Your intents are not and those have to be inferred. Based on that first comment and what you should probably be aware of, the seeming intention of that post was to smear and not to bring up some clearly apparent problem with his argument.

When you wrote that post were you totally unaware of traditional natural rights defenses? Are you truly unaware of the defense from the idea of individual rights? Do you really think that the broader tradition of natural rights and natural law is pro-slavery or takes an anthropological approach to defense? Are you totally unaware of the normal defense of natural law as something discovered via reason?

Are you from the US or somewhere else? If from the US what state are you from. Something is very fishy here. Do they not teach US history where you come from? Ever hear of John Lock, Thomas Jefferson, or the Declaration of Independence and the Constitution?

How can you believe that the broader tradition of natural law is in any way supportive of treating women as chattel or even slavery? How can you believe it is a retreat into primitivism, or even that the attack sticks to the broad tradition of natural law?

Sure the attack might work against anarchy, or a particular defense of natural law, but that is not where you are directing it. You are directing it against all of natural law.

” In primitive times as illustrated in the original article, arguments whether a canoe or tomahawk belongs to which tribesman could logically and successfully be mediated by a trusted third party such as a tribal chieftain. On further reflection, I am beginning to think that natural law in its full form probably did not exist in primitive societies. The mediator of conflicts would probably not adopt our brand of egalitarianism as, for example, if a woman tried to have her claim to own a tomahawk mediated. She would probable not get what we would call natural justice. The mediator could also rule in favor of his brother in law because he might say the tomahawk was needed for the family, or was needed to prepare sacrifices to the gods who would send famine if they were not placated. These are things that would offend our new, modern sense of egalitarianism.”

There are several definitions of egalitarianism. The natural law version holds that all humans have equality of authority. In fact, natural law is the source of that modern sense of egalitarianism.

Are you speaking of some other sense of egalitarianism, like the Marxist one of equality of outcome? If so that is actually the more primitive state. The tribal potlatch and tribal notions of rights to the goods of relatives being examples of such mandatory spread the wealth mentality.

“Thus natural law may be even more susceptible to the noble savage fallacy than I had originally thought.”

Do you always base your understanding of broad traditions on comments found on usenet forums? Do you not understand that I am attacking a single aspect of a single argument outside the mainstream that has more to do with support of anarchism than natural law? Do you understand also that I’m not even sure I understand the guys position. He’s not even here, and if he were I might just be talking past him and not getting what he’s trying to communicate.

“It does seem to me that egalitarianism is the mother of natural law.”

If you believe this then why did you make your first comment and sentence I quoted above just before this one? Egalitarianism is certainly higher in the chain. Reason is the true mother.

“If other cultures stressed other factors it might be because of their lack of affluence.”

Not with regard to the issue of chattel wives and slavery.

“I think our concern about egalitarianism is contingent upon the fact that our culture is well to do.”

I’d say not at all. What do you mean? These ideas were not developed in modern times. In fact causation is reverse, we are affluent because of our attempts at producing equality of authority. Which kind of egalitarianism concerns are you talking about, equality of authority, equality of outcome, equality of opportunity, or equality of ability?

”If we were starving we would be more worried about feeding ourselves and our families, placating the gods and if this were at the expense of other people, so be it.”

There are many shades of difference between affluence and starving. Historically it hasn’t been starving people who turned to slavery. So I don’t know what you are talking about, or why on earth you would think that. I suggest you learn some history. Those exploiting others have tended to be the powerful and not those on the edge of starvation.

What the H is Natural Law?

I am not sure what natural law is and this seems to be a problem several people have had including you. If you say Common Law and American constitutional Law are at least partly natural law, this is at least progress beyond some vague conception, a mish mash of primitive man, his evolutionary psychology and cosmic ethical reality and anarchic theory. I approach the subject with an open mind but not as an expert in law, history or social science. It seems that the idea of natural law has a good ring to it, but if the concept is to be taken seriously it needs to be clarified. Correct me if I am wrong, but from the material submitted I think it would be fair to state the following:
1.)It was discovered and used by primitive man as a way settle disputes nonviolently.
2.)The discovery of natural law was found to produced beneficial results and to satisfying man’s inherent hunger for justice.
3.)Natural law is out there regardless of whether or not it has been discovered. It is a thing in itself. An inherent good
2.)Natural law is beneficial to the evolution of mankind hence exists independently of a persons cultural identity. However it is influenced by this.
3.)It can be discovered and understood by reason and by reason alone.
4.)No theistic principle or being is necessary for its discovery or action.
5.)Obeying natural law is always ethically correct. Breaking natural law is always unjust.
My opinion:
Natural Law describes a concept used by some groups in some circumstances and does not describe a generally applied way of dealing with persons universally. I has not, until modern times, served as a general argument against enslavement, rape, pillage, extortion, taxes or war.
Primitive man had no hunger for universal justice or equality even if tribal matters were sometimes beneficially handled this way. He had more interest in survival and conquest. Natural law as a universal concept developed out of reasoned interpretations of Judeo-Christian religion and were established as ideals in Western society before they were exported elsewhere. A more accurate name for it would be Universalist Protestant Christian Legal Ethics.
Natural Laws may derive from cultural/evolutionary tendencies that had beneficial effects on tribal survival.( Monkey Law) They are part of a spectrum of natural human behaviors. Other natural behaviors may include greed, jealousy, and competitiveness. If natural law was enshrined as superior to other behaviors and tendencies, this is either a cultural phenomenon or a spiritual gift from God. There is no cosmic existence of these factors if there is no spiritual presence.
The pioneers of the Enlightment believed that reason could be applied to spiritual matters. I think the Declaration of Independence used phrases such as “endowed by his creator” and truths that were “self evident.” This is all cultural and of Judeo-Christian origin. If you throw out the divine part, it becomes incoherent to recommend that all cultures change to conform to it.
If you keep the divine part, you then become an imperialist imposing your belief on others. But if you are an atheist, what basis do you claim that this law (New Improved Natural Law) is universal? To me it gets into metaphysics which always boils down to opinions no one can agree upon. This is a contradiction neither you nor anyone else has a good answer for. That is why there is so much convoluted incomprehensible verbiage.
For example you reticent to acknowledge that you think natural law is superior. You say that law that is not natural is not law at all. This is dodging the question.
You buttress your opinion by pointing out that a law that requires turning is runaway slaves is not really a law. It is usually easier to say what something is not than to say what something is. Natural Law- New Improved Version would not require you to turn in runaway slaves. Was the slave going to pay his master back for his value? In those days slaves were considered property. A runaway slave was stealing his master’s property. If you knew someone who was hiding a thousand dollars in stolen property in your house, would it be alright to shelter this person from the police? Now if you offered to pay the master the value of the slave and then free him, it might be a different matter. I thought natural law advocates supported property rights? Why the next thing you will say is that the deed to my house is no good since the land was stolen from the Indians. But constitutional laws have dealt with the slavery issue which is now moot.
How about a more recent issue? I own a restaurant and choose to serve a White only cliental. I might claim the protection of natural laws of control of my personal property and free association. A would be Black customer might claim that the restaurant is open to the public and it is morally wrong to exclude him. What is the correct position from the natural law viewpoint? Does natural law mutate or can societies do what they want and make up reasons to call it right? Every ruler has his philosophical supporters and intellectuals, even the fascists.
It is paradoxical and way too convenient that what we think we want nowadays is right and always has been right but things that offend our sense of justice were always wrong even since time immemorial.
Lacking time I will specifically address just this comment
Me“If other cultures stressed other factors it might be because of their lack of affluence.”
Brian “Not with regard to the issue of chattel wives and slavery.”
I disagree. Survival was mediated by the family unit. Leadership by a man whose word was law helped insure the survival of the family in hard times which were the usual state of things. Needles to say society has changes markedly. In fact some did say that the family is obsolete, though this has turned out to be disastrous. Also, slavery or serfdom was part of the economic engine of many economies for centuries. Now we have paid workers and mechanical labor saving devices. This is good and a tribute to our basically good legal and economic system, which I don’t see needs dismantling to return to Paleolithic times.
That’s all I have time for now. I am not attacking anyone, just engaging in honest debate. I won’t address the ad holmium comments questioning my education or national heritage. For you information, I am an American with conservative tendencies who tends to be skeptical of the ability of smart people to reason their away to heaven on earth. Ever heard of Edmund Burke?
Dave

Not ad hominem

" I won’t address the ad holmium comments questioning my education or national heritage."

Oh, those weren't ad hominem as they in no way served to attack your position. I was curious because your statements were so polarized on the subject and yet you were acting like you never heard of natural law before. I now see that you are playing some kind of game or something.

Different people have different ideas about many things including natural law. Since you seem to be religious I suggest you look at traditional natural law arguments. You certainly aren't going to like my conception of natural law.

"But if you are an atheist, what basis do you claim that this law (New Improved Natural Law) is universal?"

Curious question. Why would one need to believe in god for something to be universal? Isn't gravity universally applicable to all humans?

Dave, in order for you to understand my personal position would require that you have a lot of background first. Are you sure you want to invest in that or do you just want to ridicule natural law of whatever sort?

The first thing you would need to understand is the scientific philosopher Popper and his theories of knowledge and science. The short of it is that we gain knowledge by making guesses (and they can be guesses based on sophisticated models) and then try to refute those guesses. When we can't refute them despite our best efforts we can consider that information knowledge. All knowledge should be held tentatively. Even our senses work this way. When you see something that is based on a complex theory rich algorithm generated by a long process of trial and error, evolution.

Then you would have to know my theory of morals, which is based on enlightened self interest. Once you'd understand that then you would see that the universality arises as a consequence of certain facts of human nature. One of those facts being that we are similar one to another. Is is so surprising to you that general principles of behavior can be deduced from our nature?

Isn't it a universal to say "It would be bad if you got killed against your will." Even criminals understand that. It's quite clearly a state of human nature that you do not control the actions of others. It is also clearly a human trait that it is possible to influence the behavior of others by your own behavior. The reasonable person understands that by refraining from murdering other reasonable people he can elicit the same behavior from them. It's obviously a general principle that everyone can agree to on the receiving side at least if not on the refraining side.

So what about those who want to recieve the benefit of being safe from murder but don't want to refrain from murdering. Why should a general ban on murder apply to them? Well the only reason others are refraining from harming these criminals is to get the benefit of not being murdered in the first place. So they have no reason to refrain from actions harmful to the murderer since they gain no benefit from doing so. Since they don't want to play by these rules well we are just in a state of nature with them anyway so we are free to take whatever action we like with them.

Murderers in a sense cannot help but be freeloaders on the system since they want the benefit without paying the price for it. Obeying the rule is the price and if they are paying it they we can force them to. What possible objection could they have? After all they act as if they are allowed to kill at will, and if they can then why should anyone refrain reciprocally.

Now I've oversimplified here because there are other issues of human nature that mitgate against merely taking whatever action we want with murderers but I want to make this short. There are many rational reasons people don't just kill murderers.

So there are two regiments here, allow murder, and ban murder. It is clear to any reasonable person that the benefits of one system far out weigh the other on an individual basis. From a self interest standpoint one system is good and the other bad. Additionally with proper organization the benefits can be used to make the just stronger than the unjust.

The reason it's possible for the good to win out is because people are generally self interested and if there is truly a benefit in a rule and they can capture that benefit then the can gain the strength to impose that rule on freeloaders like murderers. There are strategies and counter strategies involved.

If you wish to understand my notions of morality, natural rights and stuff I have some comments over at qando on the subject.

http://www.qando.net/details.aspx?Entry=3295

http://www.qando.net/details.aspx?Entry=3309

Again, you probably are going to like some pre-Darwin version natural law better than my version based on your comments.

 

 

 

Reluctance to believe

People are reluctant to believe in natural law for the same reasons they are reluctant to believe in economics:

  1. There is a rational reason: Decentralized solutions are difficult to understand. Thus if someone opposes centralism, it sounds like he is in favor of all the bad things the central authority will supposedly remedy. Thus in the debate on third world underdevelopment, people tend to assume that if one opposes the economics of totaltarianism, terror and mass murder, one favors third world underdevelopment, being almost incapable of comprehending that any solution is possible, other than that of the state "developing" the economy.
  2. There is an irrational, or rather anti rational reason: People are emotionally committed to centralized solutions because we are prone to identify with the heroic godlike central authority. This is very visible in the global warming debate. If you read climateaudit.com you will discover that many of the scientists audited were committed to the result that global warming is a big serious problem without regard for the actual evidence, and had no hesitation in adjusting evidence to produce their desired result.