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natural right vs legal right

By gzt (Thu Mar 21, 2013 at 02:29:55 PM EST) gzt, natural right, guns (all tags)

I got into a stupid argument on the internet. Namely, over whether the right to bear arms is a natural right or a legal right. Also about whether all the rights in the Bill of Rights are natural rights. And whether I should give a shit about whether the Founders say they are.

So I want some philosophical input.

Frankly, I don't care about this Enlightenment-era crap all that much because I'm not any sort of originalist and I'm not much of a fan of the Enlightenment. But, you know, whatever.

First, Madison explicitly says trial by jury is not a natural right or even a legal right, but a right given by social compact, so that takes care of "Bill of Rights == natural rights".

Anyway, I've been surprised to see that, in fact, a lot of 18th century English guys seem to think that bearing arms is a natural right, or that "life, liberty, and property" are also accompanied by "the means to defend them". Personally, I think this is a historical accident that comes from predating the standing army and the existence of police, among other things, and having occasional wars and revolutions on home turf about succession followed by attempts to disarm previously hostile classes. But, still, a natural right given to you by God?

To my mind, if it's a "natural right" in this kind of framework, you have it in the "state of nature" or the Garden of Eden prior to human society. It's a fundamental human right and if you don't have it you can protest. So things like life and liberty make sense. Having an AR-15 is more like trial by jury - it's a right granted to you by the State in order to protect your fundamental rights. Similar with trial by jury - it's a rule of the game that the state plays to help protect your right to liberty rather than something dictated by Almighty God.

Anyway, what do you guys think? No commentary on guns specifically in this one.

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natural right vs legal right | 34 comments (34 topical, 0 hidden)

In most cases by anonimouse (4.00 / 2) #1 Thu Mar 21, 2013 at 04:01:32 PM EST

All rights are a legal/social compact between you and the state. In the absence of a state, you could do whatever you damn well pleased. The state is bigger than you and promises not to give you a kicking provided you stay in boundaries it sets. What those boundaries are depends on what country/state you live in.

There is no such thing as a natural right in reality. You could argue that you have a natural right to do anything you damn well pleased. Its only the presence of the state that places legal restrictions on your natural rights in the interests of itself and the community.

Girls come and go but a mortgage is for 25 years -- JtL

that's much closer to my real opinion by gzt (2.00 / 0) #2 Thu Mar 21, 2013 at 04:11:25 PM EST

You sound a little Hobbesian, if I recall correctly. but when having to discuss anything involving dead slave-holding American white guys, you have to jump into their heads a little and argue from their philosophical milieu, as it were. It always ends up being a bit parochial (even if it doesn't devolve into discussing specific documents related to the founding of America), because, as far as I know, the particular Locke-ian approach is not popular anywhere else. As far as I know, the Commonwealth countries have a somewhat different formulation of rights and the Continent is radically different. And nobody believes in natural rights anymore.

[ Parent ]

If you live on an island on your own by Herring (2.00 / 0) #4 Thu Mar 21, 2013 at 05:33:49 PM EST

you can do what the fuck you like. If you like in a society with other people then you have only the rights that society grants - be it a village, a tribe or a state. Libertarians seem to want the advantages of living in an orderly society without wanting to follow its rules - putting them on an intellectual equivalent with tantrum-prone toddlers.

You can't inspire people with facts
- Small Gods

[ Parent ]

There is no compulsion by Herring (4.00 / 2) #17 Fri Mar 22, 2013 at 02:41:17 PM EST

You are free to fuck off to another society whenever you want - e.g. the libertarian paradise that is Somalia. I am fed up too with the governments that this country has had for the last few decades, but I am willing acknowledge that ignoring it isn't an option and if changing it (which can only happen with the consent of the rest of society, be it by democracy or by revolution) won't happen then I may have to leave. What would be stupid is to say "I want to live in place X but I don't want to have to follow the rules of place X".

You can't inspire people with facts
- Small Gods

[ Parent ]

is he? by the mariner (4.00 / 0) #20 Fri Mar 22, 2013 at 05:53:55 PM EST

is opting out really a realistic possibility? how do we know dmg would really be granted the right to emigrate to any given country that hew to a social contract more to his liking?

it's an interesting notion of yours that the notion of society you seem so happy to impose on dmg is justified by his supposed right to opt out of them. but it's by no means clear such a right can be made effective. i would suggest that coercive governments like the uk regime ought to provide citizens with a true alternative, perhaps a nice seasteading colony where the legal system emphasizes free markets, liberty, etc.

[ Parent ]

To be honest by Herring (2.00 / 0) #21 Fri Mar 22, 2013 at 07:23:40 PM EST

I don't give a flying fuck. It's not me that's "happy to impose" anything it's the way things are and to change that can only be by consensus. No man is an island entire of itself.

You can't inspire people with facts
- Small Gods

[ Parent ]

: i'm really surprised to hear you say that. by the mariner (4.00 / 0) #25 Sat Mar 23, 2013 at 07:34:08 AM EST

with the consistently principled stances you've taken in your commentary here, i thought you really believed the possibility of opting out is what made your stalwart defense of the way things justified, even righteous.
well, now that you've washed your hands of the state's coercion of dmg and other like-minded people, i trust you will no longer feel compelled to excoriate him for suggesting it isn't the bee's knees.

[ Parent ]
: Actually there are many good reasons by lm (4.00 / 0) #27 Sun Mar 24, 2013 at 01:06:40 PM EST

``There's absolutely no reason at all why we couldn't have two parallel societies in the UK.''
The practical logistics of one class of citizens not enjoying any benefit of the state from public roads and transportation to clean air and law enforcement alongside a second class of citizens that has full enjoyment of those very benefits is a nightmare that is unlikely to be able to be worked out.
A far more practical idea is for those who are convinced that the UK social contract is unacceptable is to go somewhere else where a better social contract exists or is possible to be constructed.
For example, it's estimated that they only need 20,000 people to make the free state project a reality. I would imagine that such projects could be formed in other regions of the world.
There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]

That's trying to have it both ways by lm (2.00 / 0) #26 Sun Mar 24, 2013 at 12:59:41 PM EST

It could be paraphrased as, ``I want the the nanny state to leave me entirely alone except for carving out a space of land for me which no other nation lays claim to in which I can create my libertarian paradise.''

Reality check: libertarian theory (in most forms) makes liberty a negative right rather than a positive right. For example, the liberty of "at will" employment is not contingent on employer's being willing to hire. There is no guarantee that a job be available. Nor is there any guarantee that resources exist such that someone could start a business or be self-employed. All that it means is that people are truly free to make employment contracts, or not, as they see fit.

I don't really understand why citizenship (or even just nationaly residency) doesn't fall under the same line of reasoning for nations that freedom of egress. That you don't like the social contract being offered by the UK but find it more compelling than the social contract in any other nation doesn't mean that you're compelled to remain in the UK anymore than not liking the terms of employment at one company but find it more compelling than the terms being offered anywhere else means that you're compelled to remain at that employer. In both cases, you've got the freedom to reject the contract and terms being offered.

It would be different if dmg were a resident of North Korea, or some similar nation, where the fortified borders are there more to keep the citizens from leaving than they are to prevent invasion.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

this is an obviously faulty analogy. by the mariner (4.00 / 0) #29 Sun Mar 24, 2013 at 01:15:45 PM EST

you can always forgo employment entirely or strike out on your own. the alternative to accepting one of the social contracts offered by the various countries of the world appears to be a watery grave.

the point proposed to dmg by herring et al. is that if he finds the power structure of uk society and the laws it upholds constraining, coercive, etc. his remedy is to go to another country where he finds a more suitable arrangement. this is their justification for the imposition of constraints to which he did not consent -- he can just leave! but if there is no other country providing an acceptable alternative that will accept him, then this is no justification at all.

now if you want to abandon the notion of government by consent, that's fair enough, but it seems fair to me for dmg to respond by saying you and the coercive governments whose water you carry are a bunch of fascists and quite possibly lizards.

[ Parent ]

That just isn't so by lm (2.00 / 0) #30 Sun Mar 24, 2013 at 01:18:29 PM EST

``you can always forgo employment entirely or strike out on your own. the alternative to accepting one of the social contracts offered by the various countries of the world appears to be a watery grave.''

Hundreds, if not thousands, of people renounce US citizenship every year. I'm not really familiar with the particulars of UK citizenship but I would be surprised if it were much different.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

nonsense. by the mariner (4.00 / 0) #34 Sun Mar 24, 2013 at 02:51:30 PM EST

obviously he has to live somewhere. renouncing one's citizenship has a negligible impact on the demands placed by the state. indeed, as a resident alien, dmg would find himself even further pressed by the jackboot of the state, if that's possible.

[ Parent ]

`he has to live somewhere' by lm (2.00 / 0) #35 Sun Mar 24, 2013 at 05:13:34 PM EST

That is not the concern of the UK. The benefits of UK citizenship (and permanent residency, for that matter) only confer on those that accept the social contract offered by the UK. Our good dmg does not have to accept that social contract. But if he does not accept it, it's certainly in no way incumbent upon the UK to find another social contract to which our good dmg might agree. That is up to dmg.

To suggest otherwise is to try to have your cake and eat it too. It's the claim that not only the UK must accept rejection of the social contract but also seek out and find an acceptable one for those that decline. That's nonsense equivalent to to saying that if I quite my job that my former employer must find a new job for me.

Which boils down to the claim 'I want my freedom, but I do not want to have to deal with the consequences of my freedom.'

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

employers do not profess high minded ideals by the mariner (2.00 / 0) #37 Sun Mar 24, 2013 at 06:23:43 PM EST

like government by consent or liberty and justice for all.

as a partisan of "the way things are", maybe you should just admit that all this talk about freedom is a bunch of horseshit. your position is that if dmg doesn't like it, he can go to the bottom of the sea. well, fair enough, but it seems a little unseemly calling that position out to the rafters up and down every thread under the guise of "love it or leave it," when really you're saying "love it or die."

[ Parent ]

A partisan of the way things are? by lm (4.00 / 0) #38 Sun Mar 24, 2013 at 08:09:44 PM EST

I think you have me confused with someone else.

Aside from that, I highly doubt that 1,000+ US citizens that renounce their citizenship every year die.

Moreover, I'm certainly not a partisan of 'love it or leave it.' Rather, I think most modern governments are built on social contract theory. This contract is not between the government and the people. That would be something called the service model of contract. Rather, social contract theory is between one individual and everyone else in society. The contract is that they'll lay down certain rights in exchange for the allowing a third party (the government) to enforce disputes. These disputes are not just about arbitrating private contracts but also extend to issues like taxation and whether or not to build roads. So if one is going to claim that governments that are putatively aligned under this theory are inherently unjust then one needs to (a) argue that the government doesn't actually correspond to the model or (b) argue that the model itself is not just.

And dmg has done neither. Rather, he's only presented the argument 'I do not like this. I want to be free'. But in making that argument, he's not accepted responsibility for freedom. Rather, he's argued that the UK government somehow owes him his own little libertarian paradise where he can enjoy all of that freedom without any of the consequences.

Now, if I had my druthers, I'd do away with social contract theory altogether and restore something like a monarchy. And, if you'd like to engage in a discusion as to why I think that would be more just than social contract theory, I'm open to it. But that discussion is mostly irrelevant to the discussion of the theory that most modern democracies are founded on and whether or not they are just.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

have i just hallucinated dmg's side of the matter? by the mariner (2.00 / 0) #39 Sun Mar 24, 2013 at 09:50:42 PM EST

it would seem to me that he has argued point (a) pretty vigorously. i guess if you'd paraphrase something like "the british government is full of corrupt, one-eyed lizards" as "i just plain don't like the government," then sure, but i just don't see where you're getting this.

in any case, i just want to reiterate that i find it outrageous that members of this forum would suggest that a grown man who's spent his life in his country of birth ought to, in effect, deport himself without any guarantee of ever finding a suitable arrangement elsewhere. i guess your social contract theory must've been popular with the american generals of the nineteenth century shuffling the natives from one reservation to another until, unaccountably, there were hardly any left to worry about. probably also with the ottoman turks of the early twentieth century.

[ Parent ]

: I had thought that I replied to this by lm (2.00 / 0) #44 Wed Mar 27, 2013 at 07:11:28 AM EST

I must have forgotten to hit the submit button or something.
Anyway, your allusion to the First Nations and the various peoples conquered by the Turks is an obvious straw man. National expansion through conquest is well outside of the bounds of social contract theory. Generals (and politicians) breaking treaties with the sovereign First Nations is an entirely different situation than dmg finds himself in. Likewise, longterm subjugation of various people groups by an ethnic and religious elite like the Ottomans is neither defensible by social contract theory nor comparable to poor dmg's plight.
Moreover, I'm not arguing that dmg "ought to" deport himself. Rather, I'm saying that emigration is a very real option available to him and that because this option is available to him, he has the freedom to either accept or reject the social contract at work in the UK.
Lastly, the argument that the UK government is corrupt does not have any bearing on whether or not the social contract in the UK is unjust. Consider a plot of land owned jointly by ten people. These people agree among themselves to hire a third party to manage, develop, and distribute the profits from that land. Later, that third party is found to be corrupt. That corruption does not reflect on whether the agreement between the land owners was corrupt and iniquitous. Nor does it give the right to any one of the land owners to unilaterally cut out one tenth of the parcel for himself. Rather each land owner is bound by whatever the original terms of the agreement specified for resolving such issues or, if the original terms are inadequate, to convince all of the other landowners to adopt a better agreement.
There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]

For example by lm (2.00 / 0) #31 Sun Mar 24, 2013 at 01:20:30 PM EST

Speaking of US citizenship, ``There were between 222 and 235 renunciants in 2008, between 731 and 743 in 2009, and about 1485 in 2010;[21][22] In 2011, there were 1781 renunciants''

http://en.wikipedia.org/wiki/Renunciation_of_citizenship#United_States

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

Yeah, but they're confused by lm (2.00 / 0) #8 Thu Mar 21, 2013 at 07:20:38 PM EST

There are some notable exception but most libertarians miss that their Lockean view of property rights has jack-all to do with liberty.

So they end up arguing really absurd positions like the right to own property is a necessary implication of human liberty.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

right to self defense as a natural right by jaxom green (4.00 / 2) #5 Thu Mar 21, 2013 at 06:24:33 PM EST

The general derivation of the right to self defense as a natural right is based on the right to life. If you have a right to live then you must have the right to take action against those trying to prevent you from living (aka self defense). Once you have the right to self defense you eventually get to the right to keep and bear arms as an effective method of self defense. You do not have the right to take offensive action against another person because that would be depriving them of their natural rights.

I can see a natural right argument by lm (4.00 / 1) #6 Thu Mar 21, 2013 at 06:58:53 PM EST

Start from Hobbes. (1) The first and foremost natural right is the right to self-defense from which all other rights, natural and legal, flow. (2) A human being is a rational animal with the ability to decide which means are appropriate for (1). Consequently, (3) Owning guns is a natural right for any rational human being who decides that they are necessary to defend his or herself.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

Also, I missed this on the first read through by lm (4.00 / 2) #7 Thu Mar 21, 2013 at 07:18:30 PM EST

``But, still, a natural right given to you by God?''

I think that Strauss is probably correct that the fundamental difference between modern political philosophy on the one hand and ancient/medieval political philosophy on the other is that the ancients and medievals largely considered natural right to be a question of natural law while the moderns considered natural rights to be something inherent to the individual independent of any natural law.

In other words, for moderns, natural right is question of our inherent nature as human beings while for the ancients and medievals, natural rights are something that depend on a rational order which is largely independent of human nature.

So if you're not impressed by the Enlightenment and you're thinking of natural right like the ancients and medievals, then the argument that the 2nd amendment has anything to do with natural right is going to seem very strange. But if you drop that point of view for bit and start with the Hobbesian claim that externalities have nothing to do with natural right because natural right is something inherent to any rational agent, then you'll be on track to throw in the argument I made above and see how the right to keep and bear arms can be seen as a natural right.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

ah! that makes sense. by gzt (2.00 / 0) #9 Thu Mar 21, 2013 at 07:33:30 PM EST

so when these people are saying God-given rights, they don't mean what I think they mean, they mean modern natural rights.

[ Parent ]

Bingo by lm (2.00 / 0) #10 Thu Mar 21, 2013 at 07:41:58 PM EST

Some do believe in God and do believe that God gave us natural rights, but only as a function of who we are as individuals. That is to say that God gave us rights by making us individual human beings. Our rights stem from who we are as individuals and are not dependent on anything external to us whether that thing is natural or by convention.

This is opposed to the older idea that our rights stem from a divine and rational order that is external to us.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

So in other words by ucblockhead (4.00 / 0) #11 Fri Mar 22, 2013 at 12:39:37 AM EST

A "natural right" is something we are built (by "God" or "evolution" or whatever) to hold as a right, not something that is inherently a given in the universe outside of us.

I can buy that.
---
[ucblockhead is] useless and subhuman

[ Parent ]

That sounds about right to me by lm (2.00 / 0) #13 Fri Mar 22, 2013 at 07:42:04 AM EST

I'm not sure that "built to hold as a right" is quite the right phrasing but that may just be pedantic quibbling on my part. The important thing is that moderns tend to think that natural rights are a function of what human beings are as human beings regardless of how human beings came to be human beings.

So political theories based on modern natural right can be atheistic or theistic. If theistic, then talk of "God given rights" might come up (as it does in the US Declaration of Independence). But it's a fundamentally different concept than the view of natural right that was commonplace before Machiavelli and Hobbes turned political theory into its modern form.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

: I'll blame the poor phrasing by ucblockhead (2.00 / 0) #15 Fri Mar 22, 2013 at 10:24:45 AM EST

On being three beers in when posting.
---
[ucblockhead is] useless and subhuman
[ Parent ]

I don't really have a horse in this race but by ObviousTroll (2.00 / 0) #16 Fri Mar 22, 2013 at 11:51:31 AM EST

I do find it annoying when anyone uses the words of a single founding father to "prove" something - they were a diverse group and rarely agreed with each other.

Otherwise, I agree the whole "legal/natural/civil" distinction is ridiculous, not the least of which because (as I understand it) "natural" rights are divinely bestowed - which hardly works in a modern legal framework....

An Angry and Flatulent Pig, Trying to Tie Balloon Animals

I dunno by lm (2.00 / 0) #19 Fri Mar 22, 2013 at 03:31:18 PM EST

I think there is a very large difference between a right to a trial by jury and a right to bear arms.

One is obviously a legal right. Without the context of a legal system, it doesn't even make sense.

The other is something that makes sense even if one were alone on a deserted island or living in a society with no laws.

Consider the idea of war crimes. Most prosecutions of war crimes depend on the notion that some behaviors are so reprehensible that it does not matter if they were legal in the nation in which they were performed. This notion stems from the idea of natural right that transcends any legal reality. For example, people have a right to not be raped by soldiers even if the law of a particular country allows for such.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

Are they? by lm (2.00 / 0) #28 Sun Mar 24, 2013 at 01:09:35 PM EST

George W. Bush has been indicted for war crimes. Yet, by all appearances, the US was the victor in the war against Iraq.

Not to mention that war crimes trials have taken place for pretty much every side involved in the Balkan conflict of the 90s.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

If he leaves the US ... by lm (2.00 / 0) #33 Sun Mar 24, 2013 at 02:33:40 PM EST

... and visits the right (or wrong, depending on your POV) country, he will.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

No, it's not a `no' by lm (2.00 / 0) #40 Mon Mar 25, 2013 at 07:12:03 PM EST

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic

[ Parent ]

: I think that you're thinking too binary by lm (2.00 / 0) #42 Tue Mar 26, 2013 at 05:02:58 AM EST

Sometimes an answer is neither a yes nor a no.
There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]

Speaking as someone with a family by Herring (4.00 / 0) #18 Fri Mar 22, 2013 at 02:51:12 PM EST

I have no problem with reasonable people owning guns. I have a big problem with unreasonable people owning guns.

You can't inspire people with facts
- Small Gods

natural right vs legal right | 34 comments (34 topical, 0 hidden)