It might be interesting to organize a group and watch Roderik’s long philosophy seminar together (http://mises.org/media.aspx?action=category&ID=90) because I don’t think I’m able to do justice to his argument.
I think it goes something like this - but keep in mind that this good be a (semi-)wrong interpretation - "well, something that is good for people, is also morally good. But something that is morally good, obviously is also good for people in a more economic sense. So there is no real need for a strict dichotomy.’
Related, I personally think that both ‘natural law’ and ‘economics’ is both based on praxeology, i.e. the logic of action. Praxeology in the economic sense investigates the logic of action in a world with multiple relevant actors, where it can be shown that ‘interventionism’ hampers people achieving their goals by using ends. Praxeology applied to ethics investigates the logic of action in a world with multiple relevant actors, where it can be shown that interventionism harms people - else they would have agreed to it - so there vision of the world gets hampered. Praxeology recognizes different actors and proofs that in order for there to have a economy that satisfies and coordinates human ends we have to have independent actors (differentiated from others by property rights). On the other hand; these differences are also morally relevant, i.e. because I’m not you and you are not me, we need a way to settle on any given situation if we disagree on what ought to happen with a specific means. E.g. If I want to kill you and you oppose it, than there is a different vision in using a certain means for a certain end. Economics can show that as a general rule: allowing people to kill each other, would hamper other ends that could be achieved. But if we have independent actors, why would it be impossible to construct an ‘ought’, i.e. we ought not to hamper other actors in the world?
Obviously; I’m not a full pledged philosopher (yet) and I can’t give a clear and cut bullet proof intellectual framework. But thinking along these lines doesn’t seem completely idiotic.
"From your later post, it is clear that you meant “legal positivism”. You present a false choice.
Mises, from Theory and History.
(…)
To sum up the above, the natural rights thinkers were right to reject the legal positivists who claimed that a law could not be held up to any standard other than itself or the standard of power. However the standards which the natural rights thinkers tried to hold laws up to were either ill-defined, illusory, arbitrary, or some combination of those things. The utilitarian tradition then picked up the thread by also recognizing that laws were subject to an extralegal standard, but understood that the only possible coherent standard against which to judge laws is that of human utility.
In Human Action, Mises characterized utilitarianism as the spiritual emancipation of man from mystical and/or heteronomous ethics. Here in Theory and History he traces its intellectual heritage back to the Greek Sophists (Protagoras said “Man is the measure of all things”). In Human Action he recognized Epicureanism, eudaimonism, and hedonism also as its forebears. He noted that the early utilitarians (Bentham, Mill, etc) had imperfect formulations, but that it was the modern economists who finally perfected the doctrine (actually it was Mises himself who did). On a side note, Hazlitt was right to recognize Hume as the founder of rule utilitarianism, and as having, not only an earlier, but also a much more sound formulation of utilitarianism (although he didn’t use the term) than Bentham.
To understand what utilitarianism evolved to be in the mind of Mises (it is one of the most misunderstood aspects of Mises’ thought), and to see how for him, as Mises himself wrote, “Utilitarianism, on the other hand, does not deal at all with ultimate ends and judgments of value. It invariably refers only to means.” please read my reply to Krazy Kaju."
<= I’m not convinced by the ‘false dichotomy’ accusation. What Mises is saying that legal positivism claimed that laws can’t be upheld to any outside standard, which is not true. Legal positivists don’t (just) say: ‘well, everything the state does can’t be criticized’. They are saying ‘there is no outside source of law. That is the law.’ Obviously, this can be criticized - as Mises himself often did - because it lacks x, y and z. But it’s still the law and it doesn’t make sense to talk about anything outside of what is created by the law as the law.
The dichotomy between natural law and legal positivism isn’t ‘can one criticize the law from a certain viewpoint?’ (which legal positivism accepts), but can we analyze what the law ought to be in the absence of someone saying what the state says it is. Can we, in fact, have a science of what law ought to be?
If Mises accept that, there in fact, can be a science of what the law ought to be - on an abstract level, of course - than he accepts the idea of natural law, as it is understood by modern natural law thinkers. If he doesn’t, than he accepts legal positivism. I don’t see how there can be a third way: either you can investigate what law ought to be (absent of any historical circumstances of what the law on that point in time ‘is’) or you deny that there is any possibility to have a rational discussion regarding what law ought to be and it’s just preference satisfaction - ‘I think it would be better if the law was x and instead of y’.
The way you explain it, it seems that Mises actually is part of the natural law tradition.
If this interpretation is correct, it’s interesting to see that Mises explains it in terms of ‘human utility’. But again; human utility presupposes the idea of different people. Misesian utilitarianism accepts the fact that there are different people with different ends and different means. Why not conclude from this that it ought to be morally right to accept these differences and respect these differences? That it is morally right to accept these differences? That there is a natural difference between all people and that we can recognize - at least in theory, sometimes you have border line cases - objectively what domain in reality belongs to someone and what domain belongs to someone else?
Given this explanation, does this part of my previous post make more sense:
"Edit: as far as I see it. ‘Natural law’ doesn’t necessarily mean ‘libertarian law’, though. But still: either differences between humans can be decided - and the human relevant for law is the praxeological man - based upon an analysis of the world or differences ought to be created by an agency. "
The idea of natural law says that we can investigate what law ‘ought’ to be. Everybody owns himself, nobody owns anybody else, everybody is a sovereign related to his own means and has no ownership over anyone else his means. If we accept that there is an objective difference - I’m not you and you are not me - than this fundamental principle of law follows quite logically. And than the only thing that is left, is to apply this to the world where we live in.
Oh, and I’ve reread your post, but I don’t think you have answered to this:
"ut where did the impossibility to apply the logic of action to a science of law come from? Is there actually an argument, or is it an assertion by lack of knowledge of any possibility? ‘Proving that something is impossible’ is not the same as ‘I can’t proof that it is possible’. I belief you are doing the second, not the first in this post. Could you actually give an argument, or is it a proof out of lack of knowledge of any real possibility of doing so? "
Oh, and please, don’t feel rushed. I’ll be around.