The Fundamental Problem of Natural Law Theory and How Consciousness Based Rights Solves it
["Portrait of Montesquieu (1689-1755)," creator unknown, taken from Wikipedia; this image is in the public domain.]
In my post, Rights and Responsibilities as Inalienable Aspects of Consciousness (if you haven't read that post yet, please do prior to reading further), I describe how individual rights really arise as a result of the exercise of human consciousness. I would like to revisit that idea here in light of the fundamental problem with any Natural Law theory.
Most libertarian and conservative moral and political theorists ascribe to the philosophical theory called "Natural Law" theory, which is a way of thinking about human rights that arose during the Enlightenment period among political and ethical thinkers such as John Locke, Frederick Bastiat, and Charles Montesquieu. This theory claims that we have certain natural rights given to us by God and that no actor, state, church, or private, may lay claim to any right to violate those rights. These rights include the right to speak freely, the right to defend oneself, and the right be secure in one's person and property. These rights, which one can really trace all the way back to the Hammurabic Code, lie at the heart of civilization itself, and every time a nation has attempted to move away from these principles (e.g., the socialist dictatorships of the 20th century), the results have been disastrous. From a purely historical point of view, this theory holds up well, because those countries which most faithfully abide by these principles tend to be highly successful (like the USA, e.g.), relative to countries that don't.
The problem with Natural Law theory from a philosophical point of view is that its logic relies on the premise of rights as God-given. If all who are engaging in discussion believe in God and believe that God gave us these rights, then that's all well and good. But what if you're talking to an atheist? If you're talking to an atheist, then all you really have to go on is a kind of pragmatism relating to the past performance of Natural Law countries versus those who are not. While this may be compelling in and of itself, it is not satisfying from a logical point of view, because the premise begs the question.
My theory of rights accruing within the natural boundaries that arise from the exercise of consciousness solves this problem. This idea describes the same object that Natural Law theory does, but rather than having to appeal to the premise of God-given rights, it establishes a Nozikian system of entitlement based on the idea that responsibility arises from consciousness, and that rights accrue within the natural boundaries that form through the exercise of responsibility. This is not only an entirely secular idea that establishes a coherent defense of property rights and personal rights; it is also actually self-evident the moment you begin an inquiry concerning consciousness and agency. I would even go so far as to say that you don't have to be a fee will absolutist to make this case, because, at the very least, we have de facto agency, even if, given an omniscient perspective, we don't, so if we make the case that de facto agency only gives one de facto rights, what follows from that is that you would have to be omniscient to be correct in overriding those de facto rights; in other words, you would have to be God to be able to justify taking someone's rights that arise through the exercise of their agency - a conclusion that most Natural Law theorists would gladly concede to.
Wonderful Post!
Classical liberals won the debate. They won this debate two centuries ago.
The problem we face today is that the enemies of freedom are winning the war. They are doing this simply by destroying our language and undermining our about ability to engage in discourse.
NOTE: both Conservatives and Progressives are part of this unending attack on reason and liberty. The terms used by Montesquieu, Bastiat, and even the US Founders have been systematically captured and abused by partisans seeking power.
People who are trying to defend the tradition of liberty find themselves wandering through a wasteland where our ideals have been systematically undermined by political rogues.
I agree with your assessment of the problem, but I'm actually pretty optimistic about our ability to overcome it. I absolutely agree that Classical Liberalism has Won the Debate, but that what the intellectual losers are now resorting to is obfuscation of meaning in language. Here's the good news: all we really have to do it confront them with sound arguments and not buy into their Orwellian tactics. Doublespeak is a powerful tool, but the human mind is hardwired with the ability (which, admittedly, must be practiced) to identify contradiction. We just have to keep winning the debate. And the walls are beginning to crack. Candace Owens, Kanye West, Ben Shapiro, Alex Jones, Ron Paul, Tommy Robbins, Milo Yiannopoulos, and many, many others are finally breaking through the morass of double-think that we've allowed the establishment thought leaders to infect our institutions with. It is getting to the point where it requires almost no courage at all to speak the truth. No reasonable person wants to be on the same side as Antifa and BLM. The choice gets clearer every day. If you believe that most people have even a modicum of reason that they can exercise, then you should be very optimistic about the next 50 years. I know I am.
I've been working on this same problem for three decades. What keeps happening is that people who start off in the right direction are confused by the meme: "Liberalism is the problem. Conservatism is the solution."
The fall for this slogan without researching either of the definitions.
Yes, "liberalism" as defined by modern radicals is problematic. That is because modern liberalism is based on paradoxes.
Conservatism is even more problematic. Conservatism accepts the paradoxical thinking of the radical left in an effort to conserve a top heavy social structure.
It is extremely difficult to get people to look beyond the political nonsense that we've been fed by the political pundits that dominate the airwaves.
Well, these labels have to be examined in terms of what they relate to. "Liberal" in relation to what? "Conservative" in relation to what? Classical liberalism means liberal in relation to the entitlement to exercise agency before the state. Modern liberalism means liberal in relation to the exceptions you make to the rights of the individual, which is roughly the opposite. Conservatism in Europe (and to a much lesser extent in the US) means conservative in regards to changes to norms, and the use of state power to support those norms. Conservatism in the American tradition means: to conserve the original intent of the Constitution which is a classically liberal document. What someone means when they say liberal or conservative has to be derived from context. But the argument is: what is the correct attitude vis à vis human agency? And we can win that debate every time.
I studied the history of mathematics and logic.
IMHO: The biggest difference between classical liberal and modern conservatism is that classical liberal is a model based on classical logic.
Modern Conservatism is a partisan ideology. It was created by a party. Modern conservatism uses oppositional logic (modern logic).
Look at the large number of "never Trumpers" who now claim Trump is embodiment of conservatism because he is head of the party.
An ideology, as understood by Tracy, is not just the stated principles. It includes the underlying method of discourse. The underlying method of discourse tends to trip us up.
It's a way of understanding things with a dogmatic element. Or, to put it in Heideggerian terms, it's a projection that causes the observer to draw out the objects of dasein in a particular way. The extent to which this compels one to a way of being, the more it precludes one from being able to engage with other perspectives. Other ways of interpreting the Manifold of experience simply become inconceivable. As for the never Trumpers, speaking as someone who didn't like Trump when he was running, from a pragmatic point of view, he's done far more for this country than any president in recent memory - much to my genuine surprise. His instinct to deregulate like mad alone is doing wonders for the people of this country already. I suspect that some of the change of heart is related to this. More generally, partisanship and nationalism are interesting issues in this context, because they can do quite a bit of harm. But if your nation happens to be promoting individual liberty at home, and peace abroad, then that's a very positive thing. I will admit, however, that the conservatives have not had a great track record with that in the past. Still, I find that the libertarianesque individuals in the conservative movement seem to have been gaining significant influence since the turn of the century. The Pauls are no longer seen as fringe, even though they were up until very recently. But I don't want to belittle your concerns. They are legitimate. Ayn Rand had the same concerns.
https://www.youtube.com/watch?time_continue=2&v=gnXFrVK3few
The Libertarian side of the GOP appears when the party is in the minority and disappears whenever the GOP has control. It is quite infuriating.
The Trump administration is going the way I thought it would. Trump likes making deals and his deals are better than past presidents.
On the ideological front, the GOP is fractured and does not see to have a coherent direction.
Meanwhile, the left has become even more insane than it already was.
As for poor Heidegger, I always found his philosophy to be too terse and convoluted to build upon.
Like many German scholars his work got mixed up with the insanity of war-time Germany.
Where you see fractured ideals in the GOP, I see an opportunity to reform them. The libertarian voices are the most consistent. They will continue to gain ground in the party, as they continue to lose ground to the communists in the DNC.
I read an article in The Austrian yesterday about Ron Paul's political career. What the Republican establishment, and the Bush's in particular, did in the late 90s to block his political career was really quite heinous. They even went so far as to convince a Democrat to switch sides to undermine his bid for the nomination. Yet, 15 years later, we had the Tea Party.
The reason it appears that the libertarian-minded within the GOP seem to always get betrayed is that the establishment still resists that. The establishment GOP still has a lot of power. I have no illusions about that. But we are gaining ground in that party. A few decades ago we only had Ron Paul. Now we have Rand Paul, Ted Cruz (not perfect, but an improvement), Nunez, Mike Lee, and many others. The constitutionalist/libertarian faction is still far from being dominant, but it is gaining ground.
As for Heidegger, I find his ideas highly useful. They provide a means of understanding how people are blinded against viewing alternative models of reality, thus stymying constructive discourse. His work is also a reminder that it's easy to fall into the trap of being captured by a projection ourselves.
Ironically, his affiliation with the Nazi party was itself an example of this. If he'd applied his own critiques in the Question Concerning Technology to the Nazi government, I think he may have had a change of heart.
Your article stated: "Most libertarian and conservative moral and political theorists ascribe to the philosophical theory called "Natural Law" theory, "
I believed for many years that conservatism was based on the natural law tradition, then I researched the history of Conservatism and finally realized that I was wrong.
Conservatism, from inception, is a partisan ideology. The Conservative ideology presents the world in terms of culture war and conflict. Conservatives might start with ideas from classical liberal philosophy, but the ideas are invariably morphed into oppositional conflicts.
The classical liberal side of the GOP keeps losing because it misunderstands the origins and purpose of conservatism.