I’m sure Wilderness is pulling out his hair out over that one. All I’m saying is that ‘natural law’ (the laws that people enact over time) is vastly different than ‘Natural Law’ (in the Aristotelian/Thomist tradition). Wilderness is confusing these two things.
The Role of Subscription-Based Patrol and Restitution in the Future of Liberty
Gil Guillory and Patrick C. Tinsley*
…
"Leoni (1961) provides a theoretical framework on which we can build an answer to this question. We offer a sketch of his theory. In a market, economic operators regard prices to be ultimate data upon which they base their calculations and actions, fully realizing that these are flexible to some extent, but quite fixed for a particular transaction. By analogy, Leoni suggests that legal operators regard legal norms to be the ultimate data upon which they base their actions, fully realizing these are flexible to some extent, but fixed for a particular adjudication. Extending the analogy, Leoni notes that the economist does not regard prices to be fixed at all, but subject to immutable rules of distribution acting on contingent facts. Likewise, the proper legal theorist does not regard legal norms to be fixed, but subject to immutable rules of argumentation acting on contingent facts of cases within particular cultural contexts. Indeed, the direction of causation of these social elements is often misapprehended. It is the offers to buy and sell in the market that causes prices (the norms of the market) to settle into relative fixity; they are not fixed before agents enter the market, though it appears that way to most economic agents. Likewise, it is the advancing of legal claims in an adjudicative setting and hearing the arguments on both sides that determines the outcomes of proceedings; and the outcomes of many proceedings thereby establish legal norms. It is not the case that legal norms are fixed before legal agents advance their arguments, although it appears that way to lawyers who learn legal norms in law school and then apply them to cases to guess how judges will rule on cases.
But does this mean that legal norms could be anything at all? No, and a number of libertarian theorists have explained why.
As Hoppe pointed out, by rationally advancing your claim against another, you are implicitly claiming that your claim is rationally defensible to a greater extent than your opponent’s: “…any ethical proposal, as well as any other proposition, must be assumed to claim that it is capable of being validated by propositional or argumentative means.” (Hoppe 1993, Ch. 10) All who make claims; or who criticize torts, crimes, legislation, laws, and judicial decisions—in short, all who debate legal norms—implicitly hold that there is a standard against which these decisions are to be measured. Narveson agrees, applying the insight in the context of egalitarianism:
Here I need merely remind the reader that we are talking about arguments for equality, as distinct from sheer assertions of it. Appeals to intuition—that the commitment to equality is “moral bedrock,” as I have heard it said—must, on the face of it, count in the latter category. As a device for supporting equality, this invites the response that, unfortunately, my “moral bedrock” might be something quite incompatible with the proponent’s: say, that equality is a snare and a delusion. Strange bedrockfellows! So where would we go from there? If it’s anywhere, it’s going to have to be either back to arguments, or to non-rational or irrational activity, such as politics—waving flags, Bosnia, etc. [Narveson 2002, p. 51]
But if the continual clash of individual claims results in rational adjudications, to what legal norms are we led? Narveson takes the case of murder:
It is absurd to say that what’s wrong with murder is that I don’t like it. The obvious response is: “So?” The reason it is the obvious response is that if we are out to regulate the behavior of people in general by suggesting a rule for their deliberate action, then the plausibility of our effort is zero if it turns out that all my proposal has going for it is that I want it or would like it. Who, indeed, cares? Until I can explain why others should care, my proposal will be irrelevant to them. And if it isn’t directed to them, we’re wasting their time. [Ibid.]
Hoppe and Narveson have much in common in their arguments about arguments. Narveson notes that the appeal to universal norms is necessary from the first. That is, if A and B come together to adjudicate a dispute in a milieu devoid of background legal norms, to what do they address their arguments? Hoppe writes: “Quite commonly it has been observed that argumentation implies that a proposition claims universal acceptability, or, should it be a norm proposal, that it is ‘universalizable.’” (Hoppe 1989, Ch. 7). Narveson quite simply notes: “No generalization, no morals.” (Narveson 1988). But this is not the only rule. Narveson again:
When in general will a proposal [for a norm] be reasonable for a certain set of people? The very general answer to this is that it will be so when it serves each person’s interest well enough, and at least as well as any other obviously available proposal. That is the general thesis of contractarianism in morals. [Ibid.]
We favor Narveson’s approach, so we will outline his contractarian program a bit more.
On the right view of the foundations of morality, there are no moral bedrocks. Everything is arguable, and arguable by reference to considerations that have to be meaningful to those concerned, antecedently to the moral theory put forward—namely, their various values and preferences, whatever they may be, plus a variety of empirically manageable factual claims. [Ibid.]
It is the grounding of morality in fact that makes moral values fundamentally different than mere preferences. But what are these facts?
One of Narveson’s favorite facts is Hobbes’s disturbing (but true) claim that almost every person, no matter how weak, has enough strength to kill the strongest among us, and also the power to make others’ lives quite miserable. He goes on to show that the Prisoner’s Dilemma is “the paradigmatic situation to which morals addresses itself”. With the relevant facts (including valuing one’s life, and one’s life “projects”) distilled into the Prisoner’s Dilemma, he shows that rational actors will choose to cooperate instead of defect, and encourage others to cooperate. This is the “contractarian case” for morals. Since the very term “contractarian” is a bit confusing to some, a clarification is needed:
The general idea of [contractarianism] is that the principles of morality are (or should be) those principles for directing everyone’s conduct which it is reasonable for everyone to accept. They are the rules that everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone.
…
Contractarianism can be made to seem arbitrary and silly: consider, for instance, the suggestion that long, long ago our remote ancestors made this deal, see, and from that day to this everyone has had to go along with it!
…
The problem is that morality is obviously not the result of a literal contract: and, indeed, it cannot be… Clearly, the sense in which morality is founded upon or due to or represents an “agreement” is going to have to be less straightforward than that. [Ibid.]
Narveson explains further:
[Contractarian morals are] the output of a course of deliberation…[chosen to have] the best chance of realizing values actually held by the agent. Those values, of course, need not be and in the first instance cannot be “moral” values. Morality is an output, and what makes it rational is the same as what makes any action or decision rational: it best fills the bill specified by one’s general set of values, whatever they are. [Ibid.]
This subjectivism of values is important to Narveson, and he regards it as a defining element of the liberal tradition:
…the liberal must justify principles, policies, and institutions, to any person affected by them, by showing that person they are for his or her good as seen by that person… Each person is regarded as being the ultimate authority on what is good for himself. [Ibid.]
But where will all of these arguments be advanced? Indeed, where will the complementary arguments of Hoppe (1993), Kinsella (2008), and others (Kinsella 1996) be advanced? We argue that two of the important venues for these arguments, or at least practical applications of them, are mediations and arbitrations.
Section Conclusion
Narveson’s vision of norms is well-adapted to considering the question of this section. The arbiter of a dispute is led by contractarian logic to choose minimally-constraining norms to apply to disputes. One way to consider contractarianism is as a philosophical theory of how free-market adjudication of norms results in the minimal legal norms of libertarian ethics.
This theory of adjudication is confirmed in history. All of the historical free or nearly free markets in law (Roman law, common law, Law Merchant, etc.) have resulted in libertarian-leaning decisions and legal norms."
Narveson is a damn sight better than Hoppe, but his whole philosophy is riddled with holes. Taken as a set of arguments providing for some coherency of private jurisprudence and pointing out problems with political action, he is fine. Taken to provide a normative base for libertarianism, he is utter fail.
de Jasay is better than both.
I should point out that both Narveson and de Jasay start out from amoral premises, and neither of them really claims to make normative propositions, but rather presents contractarian solutions for the Hobbesian ‘state of nature’. Their philosophies are neither etymilogically nor ultimately libertarian, though they bare a certain family resemblence to Propertarianism in some of their consequences.
“he is utter fail”
Begs the question. Let us know when you come up with a refutation, something more than mere assertions… and attempts at blatant dismissals.
Translation: “Why is he utter fail?”
Jesse,
Providing a psychological argument by saying “I’m confused” isn’t a rebuttal. I’m not confused. Nature is change. There are four seasons where I live. I can think on the spot very quickly. Being able to think for yourself is only natural. You see I’m a bit wiser than only thinking one person exists in this world. There’s always the other side of the argument.
It’s not a rebuttal; it’s a matter of fact. All of your arguments for ‘Natural Law’ are in fact demonstrations of ‘natural law’. (You do a fine job of this, I’ll add). Your confusion (yes, confusion) is in assuming that this translates into a proof for ‘Natural Law’. It does not. Do you understand the difference between these two concepts?
I prove natural law. I make it real. It’s only praxeologic. You can say otherwise, and that’s fine. You don’t need to know if it is proved or not. That’s for you to decide. I’m not in the business of thinking for other people. It’s praxeologically impossible. My value judgement on there being a natural law is what makes it real as I interpret my life to be living proof that it is. It’s a value judgement of mine I maintain.
What evidence do you have that Liberte and Jesse are not thinking for themselves?
I never said they weren’t. I said I recommend it. In other words, I support free-thinking. I value other people’s thoughts. I love what other people have to say. It’s one of the joys of life. Thanks for asking!
Answer my question, please.
I did answer the question. I’m sorry you didn’t like the answer. I assume you wanted another answer.
In order for us to “start” thinking, we would have to have not been thinking at one point. When was this?
I already explained what I meant. I’m being gracious answering this again in my opinion.
Talking with you is really hard to do, just to let you know.
lol
I know. I’m stubborn sometimes. I feel the same way about you at times. So don’t feel alone.
How does your valuing there being a natural law make it real?
Lilburne,
Because my values are real and exist in this world.
I value unicorns.
Good for you.