| | John,
But rights do not exist in the fabric of space/time, they only exist insofar as man if he is to live and flourish (not just any kind of living, an Aristotelian eudaimonic kind of living), a recognition of rights are the only means he has to attain such an optimal life. I agree with that -- that rights aren't knowable without conceptual awareness -- but I'm still a natural rights guy.
I think it's important to note what the purpose of rights are, they are a concept created to attain a certain value-determined goal, and only insofar as that is the goal, rights exist as a meaningful concept. But the universe has no opinion on the matter, it doesn't give a crap what happens to man, it has no values so there are no universal constants that give rise to a concept of "rights", so I think it's a misnomer to call them "natural rights". I agree that the universe doesn't have opinions, but I think that you are looking at the matter as if it were a matter of opinion rather than a matter of fact. Let me explain. If rights were a matter of opinion, it might matter what the universe "thinks" (I'm speaking metaphorically, just like you did). If rights were a matter of opinion, it might matter that they might only be instrumental values toward a chosen goal (of some men, somewhere).
When you say rights were (a concept) created in order to attain a goal, it's instrumental -- like when a carpenter creates a hammer in order to deal well with nails. On that view, rights got created by some high-minded men who wanted to live well. It's existential. Existentialists don't look at the nature of man to get answers on how to live, they create their own answers. It's part of their self-expression to do that. Any other way to live would seem like a prison -- or like insanity -- to them. They have got to come up with -- to personally come up with -- their own answers to things.
An alternate view is to discover the right answers to things (by looking at nature). On this alternate view, there was always that one right way to be, or that one right way to do things -- it's just that humans were having trouble saying just what it is. On this alternate view, rights aren't (a concept) created in order to attain a goal, they're discovered (by looking at nature) to be the facts of the matter.
An analogy might be a bunch of folks thinking and living as if the world were flat, until this wrong thought didn't help them anymore (think of Columbus sailing across the ocean). At that point, what's needed is for them to discover the facts of the matter -- rather than to merely create a concept that the world is round (in order to accomplish the goal of sailing across the ocean without falling off). We wouldn't say they created the round-world concept in order to attain the goal of sailing around the world -- we'd say they discovered the facts of the matter and then proceeded to go from there.
For hundreds of thousands of years man lived without any recognition of rights, yet from an evolutionary biological perspective, he has survived, and it was a 100% natural process, no recognition of rights were needed for this kind of survival, but it wasn't survival in any kind of flourishing way during the majority of this time. Man's life in the absence of any recognition of rights was a brutal, harsh and brief existence marked by constant violence. So who is to say rights are "natural"? It makes no sense, man existed in nature without respecting anyone's rights for hundreds of millennia. I disagree with this. We've always had rights. Try taking candy from a baby. Ever see a toddler who just had his toy taken away? I saw one toddler pull another toddler off of a chair -- face-plant! -- pulling back his own toy. Kids less than age 5 understand rights (to some degree). Even ancient barbarians understood rights (to some degree). Here's more on that.
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In this paper I have used several different definitions of natural law, often without indicating which definition I was using, often without knowing or caring which definition I was using. Among the definitions that I use are:
- The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. (This definition is the most widely used, and is probably the most useful definition for lawyers)
- The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, (in the absence of better methods), by individual unorganized violence, in particular the law that historically existed (in so far as any law existed) during the dark ages among the mingled barbarians that overran the Roman Empire.
- The medieval / philosophical definition: Natural law is that law, which it is proper to uphold by unorganized individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. Locke gives the example of Cain, in the absence of orderly society, and the example of a mugger, where the state exists, but is not present at the crime. Note Locke's important distinction between the state and society. For example trial by jury originated in places and times where there was no state power, or where the state was violently hostile to due process and the rule of law but was too weak and distant to entirely suppress it.
- The scientific/ sociobiological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganized violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized violence to punish such conduct, then such violence would not indicate that the person using such violence, (violence in accord with natural law) is a danger to a reasonable man. This definition is equivalent to the definition that comes from the game theory of iterated three or more player non zero sum games, applied to evolutionary theory. The idea of law, of actions being lawful or unlawful, has the emotional significance that it does have, because this ESS for the use of force is part of our nature.
Utilitarian and relativist philosophers demand that advocates of natural law produce a definition of natural law that is independent of the nature of man and the nature of the world. Since it is the very essence of natural law to reason from the nature of man and the nature of the world, to deduce “should” from “is”, we unsurprisingly fail to meet this standard.
--http://jim.com/rights.html
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Ed
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