I don’t see how that quote says that Nielsio believes that third-party opinions are the foundation of law. It looks like he thinks that third-party opinions help reinforce the resolutions of disputes. If I steal your shovel and refuse to go to mediation or court, then what happens if you take your shovel back? What if I prevent you from doing this? How are you going to get it back? By hiring someone to do it? Why are they going to do it? What makes it your shovel and not mine? Why should anyone care about your belief that it is your shovel?
This approach unnecessarily conflates the production of security and the production of law. You cannot take an “axiomatic approach” to “derive” a market because the market itself is the result of the simultaneous interactions of many humans that are simply too complex to be analyzed step-by-step. Hence, we speak of the “market in security” without specifying, step-by-step, how such a market could or would arise on an empty island being repopulated one person at a time. In other words, Crusoe analysis is simply unsuitable to the problem at hand, except to differentiate the case of a state of nature with no other human beings (isolation) and the social order.
All the questions you ask are addressed in my article Praxeological Account of Law. Nielsio and I probably agree on most conclusions but the disagreement is methodological and I think that the repercussions of Nielsio’s methodology are profound… he thinks you can derive a libertarian legal system from his methodology and my contention is that, in fact, what gets derived from that methodology is the social order we actually have, where judges make decisions based on what is popular more than what is just.
Clayton -
Thanks Clayton, I was driving and couldn’t respond. That’s exactly right. A sleeping person must wake up in order to advocate for themselves. A person in a coma or hampered by a mental condition that makes them unable to make value based decisions to guide their actions must have a rational advocate. They can’t be held responsible for their own actions. Thus someone must take responsibility for them.
This doesn’t mean that our actions toward each other aren’t influenced by a host of the virtues we consider important, often paramount. It’s just that those moral motivations we have are not universals, and no amount of argument can show that they are.
I know what you say in your article, and I agree with it, which is why I link to it for most newbies here. The point of my questions is that you cannot escape third-party opinion. If you cannot prove to others that what you have done is just, then you cannot be acting within the law. If you reclaim your shovel from me, but you cannot prove to others that what you did is just, then you will have acted illegally, even if what you did was right according to libertarian property theory.
What I get from Nielsio’s points is that people have natural incentives to support libertarian property rights, but that the state upsets these natural incentives. Eliminate the double standard, and people will want to support libertarian property theory because it is in their own interests. I don’t see how that in any way could lead to a state.
Certain incompetents are vegetative and so the advocate is exclusively a guardian (infants, seniles, comatose etc.) Others are not vegetative but they cannot form an argument on their own behalf (e.g. the mentally retarded, the insane) and so the advocate is both a guardian and a surety. In the former role, the advocate is primarily preventing harm from coming to the incompetent. In the later case, he is both preventing harm from coming to the incompetent and accepting liability for harm the incompetent might bring onto others, whence he derives the authority to confine the incompetent or make other arrangements to incapacitate or pacify the incompetent.
Well, I would qualify that last sentence… we can in fact establish universals through empirical study, that is, by investigating culturally-universal behaviors, of which there is a staggeringly large list. These behaviors form the basis of an empirical specification of human nature. This provides the framework for a normative morality. However, normative morality is not suitable for use in legal disputes because the only valid threat that can be made in a legal dispute is to walk away, that is, to call off the deal.
Clayton -
I don’t actually accept that qualification. I mean, even a staggeringly thorough scientific study of values could only ever make hypotheses about human values. They couldn’t really ever design such a test, and if they did, it would only tell us about ourselves and our species-specific preoccupations, not anything like a universal we could expect to apply to other species. It’s like the “is free will objectively real or just an illusion?” question. It’s irrelevant through the impossibility of getting the right perspective to carry on a study.
I do agree with the rest of what you said, though, Clayton! Should have started with that.
Clayton, take the case of a fetus. Say a mother wants to abort. In your view, do I or don’t I have a right to advocate for the life of the fetus by laying claim to it (as abandoned property) in order to assert my rights to its preservation.
I see her right to evict, but I don’t see her right to keep others from adopting what she intends to abandon.
The same issue would apply to any incompetent whose guardian wishes to kill it.
That exaggerates the shakiness of what we can conclude on the basis of empirical study of human behavior. If the same behavior exists across all cultures, that tells us that this behavior is part of our genetics*, that is, it is encoded right into what it means to be human.
To develop norms on this basis still requires a moral criterion - that is, you have to pick something that is the criterion for “good” versus “bad”. Human nature itself is just a description of what is a human… it is neither good nor bad. Combined with the Epicurean moral criterion (pleasure=good, pain=bad), you get a robust, reasonable and practical moral system. Morality is the art of choosing right ends on the basis of the consequences (short- and long-run) to oneself in terms of suffering/satisfaction within the constraints of human nature, both of oneself and that of others. The study of human nature not only sharpens my discernment of how my choices will affect me but also sharpens my understanding of how others will react to my choices. Because the social order is itself the single most important component of my satisfaction** (and, thus, the single greatest cause of my suffering), the large part of moral philosophy (or science, if you like) is concerned with the study of human nature and the consequences of the particular features of human nature to our choices.
Clayton -
*though not necessarily our genes… regardless of how a particular behavior is developed (whether hardwired in the brain or invariably developed during childhood), so long as it is culturally universal, we can safely conclude that it is part of human nature
_**_consider how many social interactions are required just to cook yourself breakfast
Absolutely, and I’ve written on this in some other thread, I can’t remember where. Basically, viability does matter though not for the reasons the Supreme Court said in Roe. Viability determines the point at which the life of the child could reasonably be saved and then the unwanted child could be adopted by someone else. Since it is not the mother’s property merely by virtue of having been inside of her, she cannot destroy the child if someone else is willing to take it. However, privacy is also anyone’s right, so the mother has no duty to inform anyone that she is pregnant. In this case, she can abort even after the point of viability without legal repercussion.
Termination of respirator support (e.g. the Terry Schiavo case) is a different matter - the advocate is not abandoning anything, he is making a positive decision to end the life of the incompetent on the basis that the incompetent is undergoing pointless suffering. I’m not justifying anything here, merely pointing out the structural difference.
Clayton -
Okey doke! I’m gonna gracefully say you’re probably right…
@Lady Saiga: The subject which has only in the last few decades started is called Evolutionary Psychology and I recommend this and this to your attention.
Clayton -
I agree with you. Block tries to insert a positive obligation on the mother to inform the public (he acknowledges that this is inconsistent).
Not only is it inconsistent, but it is also unnecessary. The hospital employed to perform an abortion has every right to inform others of a possible adoption. This is a possible revenue stream for them. Only if they contract away this right would the abortion be secret. Thus, secret abortions have a premium price.
So adoption would be the norm due to the lower price. Only when the mother is willing to pay a little extra would abortion be the result.
How didn’t this thread end with Neodoxy’s posts? Rights are subjective, normative, prescriptive concepts. They aren’t objective, descriptive laws of nature. They’re whimsical rules and nothing else. They’re whatever you want them to be or, if others are involved and “rights” is to mean anything communicable, then they’re whatever people agree they are.
/thread
But the question in the OP is effectively addressed through evolutionary biology/psychology. Social norms are what they are as opposed to every other possibility because that’s how homo sapiens developed in the face of every other possibility.
This is like saying “words mean whatever people agree they mean” - just true enough but direly misleading. Meaning emerges through the process of repetition and as a word becomes repeated, its meaning transcends any kind of conventional agreement, the kind that people can make by sitting down in a room and taking a vote. The rules of chess are “what people agree they are” but in a starkly different sense than words mean what people agree they mean.
In an unhampered market in law, law (rights are merely a corollary of law) is like language, not like the rules of chess. Lawful behavior is whatever you can do without someone justifiably preventing you. What can people justifiably prevent you from doing? Go look at the past settlements of legal disputes and see.
Word usage is objective - English-speakers don’t use the sound “car” to mean orange - when they mean to indicate an orange, they invariably use the sound “orange.” This is not whimsical, it’s a fact that is as objective as the speed of light. Simple observation will bear it out. Similarly, the terms of past settlements are objective facts that can be ascertained merely by reading the terms of the settlements. The success of those settlements can be ascertained by inquiring whether the parties have gone back into a dispute or whether the settlement put the matter to rest for good. Such study is tedious and likely to be the domain of experts in such matters but it is nonetheless objective. The legal scholar arranging a compendium of case law is little different than the linguist arranging a dictionary of words and word usage. Both are scientists of objective human behavior in a particular domain.
Clayton -
Clayton’s first addition, which fleshed out what I was getting at when I said you need to define the term before saying whether it’s subjective, was necessary. Once you define which “morality” you mean clearly enough, it becomes obvious what is subjective. Without this further distinction many will be left with objections due to misunderstanding.
Yes, I watched it, and no, it didn’t help. It maintains that people have no natural rights; that rights are something obtained through rational, economic interaction with others. I completely disagree. My retarded brother (mentioning him again) cannot rationally communicate other than with very basic hand signals, but this doesn’t mean I can kill or injur him. To assume he has no rights because he cannot effectively communicate is to presume that he can be treated just as any other non-human animal that also has no rights.
The essence of my questions is thus: why is it ok for people to kill non-human animals but not ok for people to kill other people?
So you maintain that rights simply don’t exist; only customs exist. Taking this notion, I could make the claim that since Nazi Germany institutionalized the killing of millions of people who weren’t Aryan that there was nothing wrong with it since culturally speaking, the victims were outcast and had no natural rights to life to begin with…right?
Hashem confuses the subjective nature of the communication of rights with the objective facts rights are designed to describe. Also, some corollary rights are somewhat abstract, but that doesn’t make them less a facet of reality. Thus, the fact of controlling your body leads to for instance the right of freedom of movement and its corollary, the right to free association abstracted from the previous right.
In a similar way you might talk to a scientist about the nature of mathematical forumlae we use to represent the rules of reality. They will tell you that these formulae are not what the laws of nature actually do, they are just close approximations.
A political right is a close approximation of the freedoms that we actually have as human beings, as a fact of reality. We’ve discovered that societies work best and are most successful when that society respects rights that are closely aligned with the actual freedoms people are born expressing, thus we consider it important to protect such rights.
When we speak of rights being ‘discovered’ this is the sense we mean it, in the similar sense that, say, mathematical laws are discovered or the theory of relativity was discovered.
Hashem rejects all of that, he’s essentially a pure subjectivist, but I can’t accept his rejection of the reality that the political concept of rights are meant to reflect.
There is no such thing as objective rights, period. Rights are subjective or intersubjective. As Clayton pointed out, if your brother cannot speak for himself in a court of law, then someone else must do it for him. Your brother can only be protected. If you value the NAP or, more importantly, the golden rule, then of course you would consider it wrong to aggress against your brother. But in terms of law, your brother can only be protected.