Tuesday, September 09, 2014
John Rawls, Natural Law, and Pushing Back the Horizons of Ignorance
When I was an undergraduate I explored a number of possibilities while trying to find a major to which I might become committed. I started out with the intention of becoming a religious minister, but after my first year, I began to look in other directions.
Subsequently, I cycled through a number of programs. For a short time I flirted with physical sciences and, then, transitioned into philosophy, before ending up in ‘Social Relations’ which was an interdisciplinary program that consisted of courses in anthropology, sociology, and psychology … although I was largely interested in the psychological component.
As indicated earlier, prior to the time when I settled on Social Relations, I took a number of courses in philosophy. One of these latter offerings involved an exploration into the idea of justice.
The professor who taught the course was John Rawls. His lecture material consisted of a preliminary draft of what would later become a very influential book entitled: A Theory of Justice which was published in 1971 … a few years after I took the course.
Through the mists of time, I seem to recall that the enrollment for the course was much larger than most of the other courses that I took in philosophy. If memory serves me correctly – and it might not -- there could have been as many as 100, or more, students taking the course.
Normally speaking, with such a large number of people enrolled in a course, the chances of the professor teaching the course actually reading one’s term paper tends to be fairly slim. That task is frequently handed over to graduate assistants … although, perhaps, Professor Rawls was the sort of teacher who felt he had an educational responsibility to read the term papers of all his students.
In any case, my paper was read and graded by Professor Rawls. At the time – and it became, for better or worse, a life-long inclination of mine -- I wrote a very long paper, and, perhaps, out of a concern about doing injustice to his graduate assistants, Professor Rawls sacrificed himself and engaged my essay.
The paper received a grade of ‘B’ of some kind. Scattered throughout the paper were brief two or three word comments and a number of question marks, and on the last page of my essay was a summary statement of evaluation. The primary criticism seemed to be that the paper was too long.
In these final comments Professor Rawls indicated that length, in and of itself, was not necessarily problematic. Nonetheless, the gist of his concerns seemed to be that I had not used the length effectively with respect to the central thesis of my essay.
At the time I had no insight concerning who John Rawls was or who he was about to become. Consequently, it is somewhat strange how I recall that he read my paper and what he thought of it … especially in light of the fact that I have absolutely no recollection concerning the actual contents of that essay … obviously, the term paper consisted of ideas that were eminently forgettable even though Professor Rawls was kind enough to award me a ‘B’ of some kind for my efforts.
There were a few other themes that lived on in my memory with respect to that course. One of these themes had to do with Professor Rawls’ notion of the ‘original position’.
The foregoing term gives expression to a hypothetical methodology through which one is to assume that each of us enjoys degrees of freedom and equality that, roughly speaking, are equivalent to one another. Furthermore, Professor Rawls stipulates that although in the ‘original position’ everyone possesses an awareness of their general interests, along with an understanding of various ideas involving natural and social sciences, nevertheless, the conditions of the hypothetical ‘original position’ require everyone to be ignorant about one’s personal history and abilities/talents.
This latter facet of the ‘original position’ is referred to as a ‘veil of ignorance.’ The purpose of that aspect of the hypothetical set-up is an attempt to induce people to reflect on the issue of justice without engaging the problem through an awareness of those sorts of life circumstances or one’s personal strengths and weaknesses that might incline one to evaluate the idea of justice through the biased filters of what would be advantageous or disadvantageous to one in the light of one’s life circumstances and talents (or lack of them).
A further property of the ‘original position’ involves the assumption that everyone is committed to a process which is intended to lead to conditions of social and political justice. The question or challenge facing people in the ‘original position’ is to try to determine which of the possible theories of justice might constitute the most viable or defensible approach to the issue of justice.
According to Professor Rawls, if one starts from the conditions described by the ‘original position’ – including its ‘veil of ignorance’ – reason will lead one to the conclusion that two principles of justice should be adopted. The first principle concerns those freedoms and rights that are deemed necessary to have if the people in the ‘original position’ are to be able to work toward realizing various notions of ‘the good’ which they might hold. The second principle of justice in Professor’s theory entails not only the idea that employment and educational opportunities should be made equally available to all, but, as well, everyone should be given some minimum share in the wealth of society that would enable such people to pursue their individual interests with dignity as free and equal members of their community.
Nearly 600 pages are used by Professor Rawls to delineate the details of the arguments that give expression to the foregoing overview. While, in general, there is a phenomenological orientation within me that resonates with the aforementioned two principles of justice, I am less interested in how Professor Rawls arrived at such conclusions, than I am interested in the structural character of the ‘original position’ with its ‘veil of ignorance’ from which he launched his project.
More specifically, Professor Rawls treats the ‘original position’ as a sort of contrafactual hypothetical construct. In other words, since everyone is, to a degree, supposedly aware of her or his personal history and many of one’s talents/abilities, then assuming otherwise runs contrary to the facts of what is known.
However, if one erases such knowledge through the ‘veil of ignorance’ that lies at the heart of the ‘original position’, then one is free to critically examine issues of justice without such an understanding biasing one’s deliberations … or so, the theory goes. Such an assumption, of course, requires one to remind oneself from time to time that one cannot permit anything that one knows about one’s life and abilities to prejudice one’s reflections concerning the issue of justice.
In a sense, Professor Rawls is asking readers of his book to behave as jurors do – hopefully -- when the latter individuals are told by the judge that that such and such a statement must be disregarded by them and cannot play any role in their final decision. Whether, or not, jurors are able to comply with the instructions of the judge under such circumstances is another matter.
Some lawyers will say things during a trial which they know will be objected to by opposing counsel, sustained by the judge, and withdrawn by the lawyers themselves just to be able to place certain possibilities and ideas before the jury. The hope of those who use the foregoing sorts of tactics is that once something is known, it can’t be unknown, and, consequently, one might be able to help shape the final verdict through the introduction of those pieces of illicit information.
When the process of voir dire (to speak the truth) is undertaken in the legal system, a judge or prosecutor (depending on the rules in a given location) seeks to determine whether, or not, a juror or witness will, among other things, be able to put aside whatever ideas and attitudes he or she has concerning a given matter to a degree that is sufficient to ensure that information will be processed or reported impartially. Professor Rawls does not take his readers through the process of voir dire, but his expectations of readers is that they would be willing to put aside any knowledge they have concerning their own personal history and circumstances and engage the arguments in A Theory of Justice as if such individuals had successfully negotiated an inquiry into their own ideas, feelings, attitudes, or understanding and, as a result, were prepared to listen to the arguments in the aforementioned book in an unbiased fashion.
The notion of the ‘original position’ with its concomitant aspect of a ‘veil of ignorance’ is, for Professor Rawls, a hypothetical construct. According to him we do not exist in such a condition, but, he is asking us to reflect on issues of justice as if this were the case.
Perhaps, however, Professor Rawls is incorrect with respect to his understanding of the existential situation in which human beings find themselves. Although it might be true that a knowledge of personal history and abilities could skew how someone might construct a theory of justice such that the latter theory would reflect -- in an advantageous way – the particulars of a person’s life circumstances, nonetheless, the fact of the matter is that while an individual might be able to figure out how a theory of justice could be exploited in an advantageous manner if such a theory were shaped to enhance one’s circumstances rather than inhibit them, one still doesn’t know in any absolute sense whether one’s theory of justice is really to one’s advantage even if it permits one to gain from events in ways that other people could not.
For instance, let us suppose that the foregoing individual makes his money through stock transactions. Let us further suppose that the theory of justice proposed by that person is one which permits him or her to benefit from information coming from stock trading ‘insiders.’
Finally, let us assume that in times gone by our individual of interest has made millions through such transactions while other people have lost millions. Presumably, the insider information to which our subject has access is better, in some way, than the insider information to which other people have access … and the underlying principle of justice developed by our hypothetical individual indicates that everyone should be able to have access to such information.
At some point in the future, our subject sets in motion a transaction that has a potential for making him or her hundreds of millions of dollars … maybe through some sort of derivatives-based strategy. Unfortunately, events do not unfold in the way in which the individual was led to believe would occur, and she or he loses everything.
Apparently, the insider trading information relied on by the star of this exercise contained some errors. Other people who had better information in this respect acquired the millions that our person of interest believed were going to be his or hers.
In effect, our subject had a faulty system of epistemology concerning how the world works. For whatever reason, in the past that epistemological system had permitted the person in question to accurately predict what would happen in certain cases but not others.
Was the foregoing person conned? Did that individual pick the wrong people to supply the inside trading information? Was the model used to forecast the future with respect to certain stock transactions flawed in some way? Did unforeseen factors involving politics, weather, or technological breakthroughs adversely affect that person’s method for estimating risks associated with any given set of trades?
The questions one asks in this respect can extend beyond the surface of methodological considerations and touch upon more basic issues of epistemology. For example, a person might: Know one’s life circumstances, know how to use such circumstances to his or her advantage, develop a theory of justice that will reflect this sort of arrangement, and, yet, one could still ask: Is this really what justice entails – a utilitarian link between means and ends that brings some sort of advantage … financial, material, political, or otherwise?
Knowing one’s life circumstances and abilities doesn’t necessarily guarantee one will understand what is in one’s best interests with respect to the use of such circumstances and abilities. One could generate any number of possible scenarios about how to exploit such known circumstances and abilities, but none of these scenarios necessarily reflects the nature of Being and whether, or not, there is some set of factors woven into the fabric of reality which determines principles of justice quite independently of our constructs and which give expression to the truth of things and, thereby, become the standard against which one’s actions and choices are to be evaluated.
The real ‘veil of ignorance’ which confronts human beings has little to do with understanding one’s life history or how such a history might materially work to our advantage or disadvantage. Rather, the essential veil of ignorance concerns the significance of such circumstances vis-à-vis the nature of reality.
We each might know the events of our individual lives. However, do we understand what those events actually mean in the overall scheme of the universe?
Furthermore, Professor Rawls indicates that in the ‘original position’ we assume ourselves to be free and equal. One might query such an assumption and ask: In what way are we free and equal?
Do we all have an equal capacity for reasoning and insight concerning the process of exploring the possible nature of justice? Even if everyone possessed the same abilities in this respect, are we necessarily free to choose to follow what is deemed to be a correct theory of justice?
Professor Rawls stipulates that the people in the ‘original position’ do have a general understanding of the principles of psychology even if those individuals are assumed not to possess specific knowledge about their own life circumstances. If so, then such general principles probably indicate that people are not always free (due to different emotional motivational forces) to do that which they believe to be right or appropriate.
The ‘original position’ also requires one to assume that everyone is equally committed to pursuing principles of economic, social, and political justice. Again, general principles of psychology indicate that not everyone is motivated to do things in the same way, and, as a result, it is very unlikely that everyone will be equally committed to pursuing such a project … and even if they were equally committed, this level of commitment might not be enough to sustain, or bring to fruition, such a pursuit.
Being committed to social, economic and political justice implies there also will have to be an underlying commitment to determining the truth of things. If people were committed to principles of justice without a concomitant commitment to determining the truth concerning such principles, then the commitment to principles of justice might be relatively pointless … one wants people to be committed to principles of justice that, in some sense, give expression to the nature of reality rather than just being committed to principles of justice in some arbitrary sense.
In addition, Professor Rawls claims that starting from the ‘original position’, one can reason one’s way to the two principles of justice for which he argues in A Theory of Justice. Such a claim is contentious in several senses.
For instance, what if reason by itself is not sufficient to determine the nature of justice? Alternatively, what is the nature of the proof which is capable of demonstrating that reason can generate what Professor Rawls claims it can? Finally, how does one know that the character of the argument employed by Professor Rawls is rational?
In other words, what are the criteria for determining when something is, or is not, rational? Moreover, how does one justify the choice and use of those criteria?
There is nothing hypothetical about the veil of ignorance that cloaks our lives. We are theory-rich and knowledge-poor with respect to all manner of things.
We don’t necessarily know who we are … although we might believe that we do. We don’t necessarily know the significance of our life circumstances … although we might believe that we do. We don’t necessarily understand the nature of reason and what makes it possible … although we might believe that we do. We don’t necessarily know whether, or not, principles of justice are discoverable through the exercise of reason … although we might believe that we do.
Are the foregoing sorts of beliefs delusional? We’re not sure.
The veil of ignorance is a fact of life. There is no need to treat it as a hypothetical construct.
Given the reality of such a veil of ignorance, one might raise a question that is relevant to a number of previous blog entries. What justifies anyone imposing a system of governance on other human beings?
Some people have proposed that the justification for a system of governance is the manner in which it gives expression to ‘the rule of law’. The problem with such a proposal is that not only is one uncertain about the precise nature of such a rule of law, but one is uncertain about how one might go about justifying the claim that is being made concerning such a conception of ‘the rule of law’.
For example, what is the rule of law that is inherent in a process of constitution-making (i.e., the Philadelphia Constitution) that was not done in compliance with the framework of legalisms that surrounded such a process (the Articles of Confederation) and which used a ratification process that was not only a violation of the aforementioned framework, but, as well, was conducted in an unethical manner that, among other things, involved less than 10-15% of the population upon whom that constitution was to be imposed? Moreover, what is the rule of law that connects such a set of unauthorized, illegal, unethical, and unrepresentative set of procedures with the people of more than two hundred years later who had no say in such a process?
Unfortunately, as I believe a number of earlier blog entries have indicated, there is no rule of law that defensibly links the America of more than two hundred years ago to the America of today. Such a rule of law is entirely mythological in character.
Consequently, we still are faced with the challenge of trying to come to terms with the question of legitimacy in relation to the matter of governance. Furthermore, this issue of legitimacy might be intimately tied to the veil of ignorance that is our constant companion.
For more than two thousand years, the idea of ‘natural law’ has, in one form or another, been an important part of the discussion revolving about the hub of governance. Quite frequently, references to ‘natural law’ involve the belief that the principles inherent in such law are, in some sense, self-evident.
In the second paragraph of the Declaration of Independence, for example, one finds the following words: “We find these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights that among these are Life, Liberty, and the Pursuit of Happiness.” One can legitimately ask, however, in what sense are such truths self-evident?
Empirically speaking, for instance, it seems rather self-evident that people do not appear to be created equally. People possess different physical gifts, degrees of intelligence, and talents, so in what manner of speaking are ‘men’ not only equal but equal in some self-evident way?
Does this sort of equality extend to women, Indians, and slaves? Apparently, such possibilities were not as self-evident to the Founders/Framers as were those truths concerning “all men” who were white.
Presumably, the sense in which ‘all men’ are equal to one another has to do with the inalienable rights that are granted to every ‘man’. In other words, every man has been granted the same set of inalienable rights by ‘his’ Creator.
However, leaving aside, for the moment, the manner in which the idea that all men are equal excludes all those who are not considered to be men – whether women, Indians, Blacks or others of a non-white orientation -- if a person does not believe in a Creator, is the same set of rights still inalienable? Under such circumstances, do such ‘truths’ remain self-evident?
Some people have argued that ‘natural law’ has nothing to do with the structural character of the universe. Instead, such individuals believe the foregoing term should be restricted to the ethical and political realm of human behavior.
Viewed through the foregoing sort of a perspective, natural law is not considered to be a proper subject for the natural sciences. Instead, natural law concerns issues that supposedly fall beyond the purview of those sciences.
If natural law does not give expression to phenomena that are capable of being studied through the natural sciences, then how does one establish the “truths” to which such laws supposedly give expression? Doesn’t the claim that certain “truths” are self-evident constitute an artful dodge with respect to the problem of having to determine, in a demonstrable fashion, the nature of the relationship among data, methodology, and the ‘truth’ of a matter? Doesn’t the notion of something being ‘self-evident’ run the risk of giving expression to a process of ‘reasoning’ that assumes its own conclusions?
Quite irrespective of whether, or not, the natural sciences – as presently constituted -- are up to the task of discovering those laws of nature, if any, that concern matters of ethics and politics, one might suppose that something more than the quality of “self-evidence” will be required for claims concerning the nature of ‘natural law’ with respect to issues of rights, freedoms, and the issue of governance to be given much credence. Moreover, one also might suppose that what is considered to be ‘self-evident’ should not depend on whether, or not, someone believes in a Creator who endows ‘men’ with such inalienable rights.
For something to be considered as self-evident in a more persuasive sense, one might hope that anyone – regardless of beliefs concerning the existence of a Creator – should be willing to acknowledge the truth of a matter. In fact, if both believers and non-believers (concerning the issue of a Creator), were to agree to the truth of a certain claim, then such agreement might be treated as being somewhat akin to a form of independent confirmation with respect to the aforementioned sort of claim and, thereby, possibly constitute evidence for the ‘self-evident’ character of the ‘truth’ underlying such a claim.
If the natural laws that are said to be associated with ethical and political issues are not material or physical in the sense in which natural sciences are interested, then what are they? There have been several responses that have been given in relation to the foregoing question.
One response suggests that such ‘natural laws’ are, in some sense, historical in character. Thus, if one goes back to the writings of the Stoics (e.g., Zeno) in the third century B.C, one will come across a vocabulary concerning natural law that has been revisited, in various ways, across thousands of years and many different geographical localities.
Considered from the foregoing sort of historical perspective, natural law entails the body of discussions that have taken place over the years in relation to the topic of natural law. As such, natural law gives expression to a set of themes and terms that have been critically addressed in what is said to be a fairly consistent fashion by individuals in different periods of history.
Presumably, if a lot of people in different historical periods and locations critically engage the idea of natural law, then, perhaps, there is something underlying such seemingly independent investigations that reflects a commonality concerning the nature of reality that speaks to a certain kind of ‘truth’ with respect to such ideas. Whatever the merits might be with respect to the foregoing kind of approach, there is a question lurking in the background that needs to be addressed.
More specifically, despite the possible existence of a certain family resemblance that exists among the themes and terms that are entailed by such an historical account of the idea of ‘natural law’, one can still ask the following question. To what extent does the foregoing sort of account reflect the character of reality?
The historical approach to natural law might be nothing more than a litany of ideas that have been explored by this or that person in this or that period of history for this or that reason. One is still uncertain what any of those ideas have to do with truth … let alone self-evident truths.
The fact that, historically speaking, various people might have addressed the issue of natural law in a similar – possibly even consistent -- manner (although this notion of ‘consistency’ is often a contentious matter), this might not mean anything more than that a variety of people have pursued the same sort of line of inquiry at different times. Similarity in thought is not necessarily an indication that truth is being reflected in, or through, any commonalities that might tie a set of terms together … even if one were to leave aside the question of whether, or not, such commonalities were actually present.
What people have thought historically – no matter how similar and consistent such thought might be – does not carry any necessary implications for the nature of truth. The foregoing realization has led to a second way of thinking about the idea of ‘natural law’.
This second avenue of inquiry is sometimes referred to as a philosophical exploration. The philosophical manner of engaging natural law seeks to discover something universal in the nature of things … some truth that applies to everyone and, therefore, a ‘truth’ to which everyone is bound.
Philosophically speaking, something is “natural” to the extent that it accurately reflects some facet of the realm of nature. Moreover, something is a function of law to the extent that it gives expression to a process through which a given phenomenon in nature manifests itself across a variety of circumstances in a, more or less, regular, consistent fashion.
Whether, or not, the philosophical approach to natural law is anything more than a snipe hunt -- in which one becomes caught up in chasing after an imaginary creature of some kind -- is unknown. Consequently, one might be no better off pursing a philosophical approach to natural law than one would be if one were to pursue an historical approach to the same concept.
Irrespective of the path one chooses in order to try to explore the topic of natural law, the stakes are very high. For instance, who, if anyone, possesses inalienable rights … the sort of rights that, presumably, cannot be trumped by any set of circumstances?
If such rights exist, do they belong to individuals or to the collective? Alternatively, if such rights exist, could they belong to both individuals and the collective, and if so, on the basis of what principles should one seek to balance such claims on rights?
Are collective rights and individual rights necessarily in conflict with one another? If not, then how can they be reconciled?
If a natural law exists concerning the rights of human beings, to what extent do such laws govern both the relation of the individual and the State, as well as the relationship among States? If natural law is an expression of the nature of the universe in some sense, then one might suppose that arbitrary arrangements of governance – that is, arrangements that do not reflect the principles of natural law inherent in the universe -- are likely to generate problems of one kind or another, and, if so, could one use natural law as a tool for explicating how such difficulties arise?
Natural law – to whatever extent it exists – must adequately address all of the foregoing issues. If natural law exists as a part of the reality of the universe, then its truths are only self-evident to the extent that one correctly grasps the character of those truths … and, as such, this might take the issue of natural law beyond either historical or philosophical considerations and push that concept into the realm of epistemology.
What, if anything, can be known about the nature of natural law? What are the limits, if any, that exist with respect to such a notion, and if such limits exist concerning our capacity to know or understand the way in which the natural law of ethics and politics operates in the universe, what implications do these sorts of limits have for the issue of rights and governance?
According to Cicero (a Roman political theorist and philosopher who lived between 106 B.C. and 43 B.C.), natural law gives expression to the manner in which reason, when correctly exercised, accurately reflects the character of Nature. Furthermore, when reason enjoys the foregoing sort of relationship with Nature, then reason has grasped something that is eternal, unchanging, and universal.
Obviously, if one’s reasoning has correctly grasped the character of nature concerning ethical and political themes, then one has no justifiable reason for altering anything concerning such an understanding of natural law. Moreover, if one assumes that such an understanding is manifested through the laws of the State, then any attempt to overthrow or reject such natural law would be foolish, if not treasonous, in nature.
On the other hand, if one’s reasoning has not correctly grasped the character of natural law with respect to issues of ethics and politics, then there might be many perspectives that are capable of lending support to one’s desire to change such arrangements … although the matter of justifying the system to which one wishes to switch is a separate issue. Furthermore, if the given laws of a State/Nation do not reflect the actual character of the natural law of ethics and politics that govern the universe, then it would be prudent to reject such an arbitrary system of laws.
The problem, of course, is that quite frequently we do not know what the status of things is, ethically and politically, relative to the actual nature of the universe. Those who occupy positions of power tend to argue that the status quo reflects the truth of things concerning the natural laws of the universe and, therefore, ought not to be changed or abolished, while those who are out of power tend to argue in a contrary fashion.
Separating the issues of power – with all of its advantages – from the issues that surround coming to understand the possible character of the natural law of the universe can be a tricky matter. Many people confuse, if not conflate, the former with the latter, and, presumably, this is the sort of thing Professor Rawls was attempting to induce people to put aside via his hypothetical construct known as ‘the original position’.
Much rests on how the foregoing matters are decided. One’s understanding of notions such as: ‘duty’, ‘obligation’, ‘legitimate authority’, ‘freedoms’, and ‘rights’ are all informed – for better or worse – by the choices that are made concerning the manner in which the aforementioned notions fit into the idea of natural law.
An antonym for ‘natural law’ is ‘conventional law.’ Conventional law consists of a set of legal arrangements (conventions) that are arbitrary in the sense that those arrangements are not a reflection of, or called for, by the natural order of things but are, instead, a way of organizing political, legal, and/or ethical issues to accommodate a given interpretation of social processes.
Even if considered to be arbitrary in the foregoing sense, such a set of legal conventions might still be able to serve various practical functions within a society or community. On the other hand, the presence of the quality of arbitrariness in a conventional system means that other sets of legal arrangements might be able to address various problems and needs in an equally effective, if not better, fashion … although how one defines what it means to be “equally effective” or “better” tends to be contentious .
Evaluating, in some sort of comparative manner, two, or more, conventional systems becomes a matter of the kind of system of critical methodology one uses to decide such matters. This, in turn, leads to the problem of having to justify the use of such a system of evaluation rather than some other methodological system with respect to the judgments one makes about political and ethical issues, and unless one can viably root one’s choice of systems in something beyond conventions, then these sorts of evaluative methodology are arbitrary as well.
For example, consider the principle: ‘majority rules’. Is such a principle a reflection of the natural order of things or is it a convention, and, therefore, arbitrary.
There is nothing to which one can point in the natural order of things which convincingly indicates that the idea of ‘majority rules’ should govern political and ethical considerations. As such, ‘majority rules’ is an arbitrary idea.
Historically, there might have been instances in which such a principle was adopted and had practical or utilitarian value. However, the character of this kind of value can always be questioned in relation to its arbitrary nature.
In other words, if one supposes that a given convention is valuable because of its practical and/or utilitarian consequences, one could ask: Practical for whom and utilitarian with respect to which purposes? In addition, one could ask: Does one mean utilitarian in a quantitative and/or a qualitative sense and, in either case, what justifies choosing such an approach with respect to evaluating issues of politics and ethics?
Even if one could demonstrate quantitatively that a majority of the people would benefit from a certain policy, one could not only question the criteria being used to determine the nature of what constitutes a ‘benefit’, but, as well, one could raise questions about whether, or not, the character of the qualitative harm caused to the minority – who, for example, might be needed to subsidize such a benefit for the majority -- could be justified. How does one evaluate quantitative versus qualitative issues of benefit and harm, and according to whose conception of benefit and harm, and how does one justify such a conception?
Why should the wishes, interests, and needs of a majority take precedence over the wishes, interests, and needs of minorities? What requires one to accept such a conclusion?
What if it turns out that the majority is wrong about what it considers to be in its interests? What if it turns out than a given minority is correct about what it considers to be in its interests? Should the principle that “majority rules” still prevail under such circumstances, and, if so, how does one justify this sort of insistence?
There is no body of evidence to which one can point indicating that one is justified in claiming that the majority is always right. In fact, scientifically speaking, one quite easily can demonstrate that with respect to almost all major breakthroughs in science, the understanding of the majority has tended to be faulty… in part or in its entirety.
Even if one were to accept the notion that “majority rules”, what does one mean by the idea of “majority”? Does one mean 50.000001 % of the people? Does one mean 50.000001 of the adults over a certain age? … or, 50.000001 of the adult males over the age of 18? … or, 50.000001% of the adult, white males over the age of 18? … or, 50.000001% of the adult white males over the age of 18 who own property of a certain value? Furthermore, how does one justify any of the foregoing qualifiers?
Alternatively, does one mean by the idea of ‘majority rules’ that two-thirds of a given group should decide an issue or that three-fourths of a given group should decide a matter? What justifies using one standard of ‘majority’ rather than another?
What justified the Founders/Framers of the Constitution to fix one set of standards for the number of states that are considered necessary for the passing of amendments (three-fourths) but fix another, lesser standard (69%) for the number of states that are necessary to ratify the Philadelphia Constitution?
Moreover, why didn’t the Founders/Framers specify that the ratification vote in each state must carry by a majority vote of three-fourths or 69% or two–thirds of the delegates? Why did they permit the standard for ratification votes to be so minimal a form of a majority?
Why weren’t the people permitted to decide their own standard of what constitutes a majority? Why weren’t the people permitted to decide whether, or not, the minority should be bound by what a majority decides?
Even if one were to accept the idea – and the evidence indicates otherwise -- that all of the eligible voters in post-Philadelphia Convention America had agreed independently to make a simple majority the voting standard in the state ratification conventions rather than have such a standard imposed on them with a ‘take-it-or-leave-it’ choice, one still could ask, with considerable justification, the following question: Why should anyone born several hundred years later (or even 50 years later) be bound by an agreement concerning such standards in relation to the ratification conventions and the Philadelphia Constitution?
People might be able to offer all kinds of rationalizations for why things were done in one way rather than another. However, rationalizations do not necessarily constitute a justification for having done things in a given manner?
Similarly, the principle: “Might makes right” is as arbitrary as is the idea of “majority rules”. There is no connection between power and that which is right (whatever this might turn out to be) that can be established which is not arbitrary – that is, which would not have difficulty being justified, in any broadly convincing fashion, to be a necessary link between power and that which is ‘right’ ... assuming, of course, we know what the latter term means.
The fact that a majority of people or some minority have the power to coerce, force, exploit, or control some other group of people – whether a minority or majority – means nothing more, in and of itself, than that someone has acquired (through means that might not be capable of being justified in a non-arbitrary way) the requisite array of resources to impose its will on others. In short, having the foregoing sort of power says absolutely nothing about whether, or not, such power or its application can be justified in non-arbitrary terms.
To argue: If either “majority rules” and/or “might makes right” were not the ruling principle in society, then there are many things which could not be done or accomplished by society, is a conventional – and, therefore, arbitrary -- position. One must not only be able to justify the purposes or activities that are to be pursued through such principles, but, as well, one must be able to demonstrate that those means are the only justifiable way of doing the activities and purposes that are to be pursued.
Otherwise everything about such an argument is entirely arbitrary … depending on rationalizations rather than demonstrable justifications. Unfortunately, many people treat the shallowness of rationalizations as if this were equivalent to the much more rigorously demanding conditions necessary to establish justification.
Moreover, there are problems surrounding the idea of what constitutes a “demonstrable justification” … Demonstrable justification to whom and on the basis of what criteria? If a minority of people (for instance, a group of: scientists, religious scholars, jurists, or political representatives) decide that some given argument constitutes a ‘demonstrable justification’, why should what those sorts of people say be considered a definitive criterion for the ‘truth’ of something, and why should other people be considered to be under some sort of obligation to cede their authority to that sort of group of individuals?
To say that such and such is the way things are done in a given society, or that such and such is the way our forerunners did things, or that such and such is the way a number of societies/communities – perhaps a majority of them -- do things, does not alter the manner in which all of the foregoing possibilities allude to a conventional approach to political and ethical considerations. As such, all of the previous forms of arguments are arbitrary as they stand and, consequently, all of those arguments are in need of being justified in some non-circular way … that is, one cannot cite a way of doing something as its own justification. One needs some method that is independent of such a way in order to be able to have an argument that might be a plausible candidate for determining the ‘truth’ or ‘rightness’ of some given convention.
Furthermore, even if one were to suppose that some form of demonstrable justification were forthcoming with respect to a certain practice or principle being considered to be ‘true’ or ‘right’ in some sense, does it necessarily follow that everyone is ‘obligated’ to observe the requirements of such a ‘truth’ or expression of ‘the right’? Or, if obligated, that people should be forced to comply with the requirements of such a ‘truth’ or manifestation of ‘the right’?
How many degrees of freedom, if any, should be given to people to depart from what seems to be ‘true’ or ‘right’? Will society face more problems trying to enforce a given ‘truth’ or expression of ‘the right’ than if society were to establish degrees of freedom for various, limited departures from ‘the true’ and ‘the right’?
How does one measure the liabilities of force/compulsion concerning compliance with the ‘true’ and ‘the right’ against the liabilities entailed by extending degrees of freedom to such compliance? How does one measure the harm that might accrue to an individual for non-compliance with ‘the true’ or ‘the right’ against the harm that might accrue to an individual through being forced to comply with that which – we are assuming – is true or right?
Who gets to say what criteria of measurement are to be used in any of the foregoing? What justifies the use of those criteria?
There are many kinds of natural norms that are given expression through human existence. An array of criteria – ranging from: height, to: weight, race, ethnicity, religion, hair color, yearly earnings, illness, marriage, divorce, and suicide – can be used for classifying people.
However, the existence of those norms do not, in and of themselves, demonstrate whether, or not, any of the foregoing normative values should be used to construct political and ethical judgments. Of course, there have been those – for example, Hitler and the eugenics movement – which have tried to argue that the presence or absence of one, or more, of the foregoing criteria should shape the character of our political and ethical decisions.
Once one accepts – for good or bad reasons – the presuppositions of a political and ethical perspective, then the ideas which seem to be entailed by those presuppositions might make sense, but understanding how a political or ethical system works -- given the presuppositions of that system -- does not mean that those ‘givens’ have been justified. Something can be meaningful without necessarily being true or right, but, unfortunately, people – without justification -- often confuse and conflate whatever seems to be meaningful in some sense with that which is true or right or suppose that because something is meaningful, then it also must be true and right.
Delusions are meaningful. However, they are not reflections of what is true or right independent of their own frame of reference.
One might wish to argue that if some perspective could be shown to give expression to natural law – i.e., it constitutes the natural way of things with respect to political and/or ethical considerations – then such natural law is superior to any conventional system one might invent since the former is non-arbitrary, whereas the latter is arbitrary. The problem, however, is that we often have difficulty distinguishing between what is natural from that which is conventional … frequently assuming that because a given convention has become the ‘norm’, then this means that what is just a set of arbitrary conventions actually reflects the natural order of the universe.
The way one would like the universe to be is not necessarily the way the universe actually is. Conventions tend to be a convenience for those who are engaging the universe to accommodate personal preferences quite apart from what the truth of things might be.
If one cannot establish the character of natural law in any demonstrably justifiable manner, and if one is only left with conventional systems that are, by their nature, arbitrary, then one is faced with the problem of having to decide between arbitrary systems which are inherently resistant to being shown to be more true or more right than some other arbitrary system. How does one go about determining that one conventional system is, in some manner, less arbitrary than some other system, and does the quality of being less arbitrary than other systems thereby necessarily transform such a system into an obligatory framework of some kind?
A Christian writer of the seventh century – St. Isidore of Seville – maintained that laws are capable of being divided into two classes … those that are man-made and those that are Divine. According to St. Isidore, the laws of God reflect the natural order of things, whereas the laws of man, based as they are on custom or conventions, vary from one nation to another.
A careful observer of history might notice that there is considerable variability amongst the ways in which the ‘natural law’ of God is given expression in different historical periods and geographical places. Indeed, one might easily suppose that there is as much variability with respect to the character of such natural or divine law as there is amongst the customs and conventions of different societies … in fact, the variability within one and the ‘same’ religion can sometimes be as great as the variability between different religions.
In addition, one might question whether, or not, what some people consider the natural law of God is nothing more than the custom, habit, or convention of those people. Making a classification or distinction does not necessarily mean that one correctly understands the nature of the classification or distinction one has made.
On the other hand, some people suppose that the foregoing variability within and between religions serves as a sort of a priori argument in favor of the idea that there is no God. Aside, however, from committing a logical error that assumes that the mistaken understanding of human beings carries any necessary implications for the nature of reality, individuals who argue in the manner outlined in the first sentence of this paragraph also are not in any better position than those who may, or may not, have beliefs concerning the divine nature of natural law.
After, all, there is a tremendous variability in the philosophical and hermeneutical character of non-divine conceptions of the universe. Unfortunately, one has no universally agreed upon means to demonstrably justify why the adoption of any given custom or convention would be superior to what is done by those who are working out of some other philosophical or religious orientation.
Proponents of both religious and secular approaches to legal, political and ethical problems maintain that human beings have a capacity for reason that permits them to evaluate the value of different arguments with respect to the degree, if any, to which those arguments give expression to what is ‘true’ or ‘right’. However, the proponents of both religious and secular approaches to those issues often make the same mistake and assume that the way they think about something is ‘rational’ and anything which departs from that manner of ‘reasoning’ is in error or irrational.
The nature of reason and logic tend to be very difficult to pin down. We all sense the elusive presence of reason and logic permeating the fabric of experience – both individual and collective -- but, quite frequently, we tend to become preoccupied with trying to demonstrate what reason and logic are not (e.g., attempting to point out the flaws in someone’s arguments) than what reason and logic are in and of themselves … if this is even possible.
We often do that which we do not understand how it is done (e.g., creativity, invention, insight, awareness, language). Perhaps understanding and reasoning are among the things we do which we do not understand … and might never understand.
Once again, we are confronted by the same sort of problem as noted earlier concerning the ‘natural’ and the ‘conventional’. More specifically, how does one distinguish between, on the one hand, the natural laws, if any, of reason or logic (their ‘reality’) and, on the other hand, those man-made conventions concerning logic and reason which are little more than customs adopted for this or that purpose and which derive their apparently compelling force from habit rather than anything more essential and universal in character?
We tend to use conventions to distinguish between the real and the customary. However, those methodological conventions are not always reliable indicators of what is true or what is right because those conventions cannot always separate what we bring to a situation and what is brought to that situation by a reality considered independent of us … or even successfully determine whether, or not, there is any reality independent of the phenomenology of experience.
To say that: Reason is what we use to grasp the nature of reality, might only be an exercise in circular reasoning such that ‘reason’ is merely looking into the mirror of conventions that have been constructed by imagination for the purpose of generating something that is considered to be meaningful for our viewing pleasure. Reason can be used to try to understand the nature of our own thinking about something (i.e., the manner in which we create meaningfulness), or it can be used to grasp the nature of the reality which makes our experience possible, and we are not always sure which is which in any given instance.
The term: ‘self-evident,’ might mean nothing more than that which reflects our own way of thinking about things. Alternatively, ‘self-evident’ might refer to the manner in which reason grasps some dimension of reality and, thereby, gives expression to one facet, or another, of ‘the true’ or ‘the right.’
The Founders/Framers of the Philadelphia Constitution believed that the truths which they considered to be self-evident were reflections of the nature of reality. Yet, given the way in which women, Indians, and Blacks – to name but a few – were excluded from such truths, one suspects that -- at least in part -- the Founders/Framers were more entangled in their own arbitrary conventions than they were in possession of any clear understanding concerning the ethical or political character of reality with respect to human beings.
The British did not agree that such truths were self-evident. Perhaps the reason why they did not share the same understanding concerning the allegedly self-evident character of such “truths” as did many Americans is that the British worked out of a different arrangement of conventions than the Americans did … or, maybe, one side or the other – or neither – was actually understanding the character of reality, while the other side was (or, maybe, both sides were) ensconced in delusional thinking.
The belief of many people concerning the greatness of Aristotelian theories about the relationship between the individual and the State was that they were based entirely on reason. The belief of many people concerning the greatness of the Roman law was that it was based entirely on reason. The belief of many people with respect to the greatness of the systems of Augustine and Aquinas was the way in which reason played a substantial role in the respective frameworks of the latter two individuals and, thereby, appropriately complemented faith.
In each case natural law refers to the capacity of human beings to use reason to grasp the nature of the relationship between human beings and the universe. Unfortunately, Aristotle, the Romans, as well as Aquinas and Augustine all had somewhat different – although at points overlapping -- approaches to explicating the details that reason generated concerning the nature of the relationship between human beings and the universe as expressed through natural law.
All of the foregoing perspectives were immersed in the conviction that one is given insight into the nature of the universal and eternal truths of reality through the use of reason. All of the foregoing individuals were convinced that, in a sense, their orientations – or portions thereof -- were self-evident in the light of reason, but like light, reason seems to be radiating at different wave lengths in each of the foregoing frameworks and, therefore, is only capable of illuminating what such wave lengths are capable of disclosing according to their nature … perhaps much as is the case when one uses: microwave, infrared, or ultraviolet light to ‘see’ different dimensions of being.
If there are eternal, universal laws, and if one engages such laws through the proper exercise of reason, then the results of that sort of engagement give expression to an understanding of the way in which natural law is manifested in the universe. However, what is missing from the foregoing sort of a hypothetical (i.e., an ‘if-then’ form of statement) is a demonstrably justified account of what constitutes such eternal, universal laws as well as what constitutes a “proper” exercise of reason with respect to those laws so that their presence and nature might be understood as giving expression to natural law.
One can speak about the ‘light’ of reason or the self-evident truths which are illumined through that light all one likes. Nevertheless, until one knows that what is being manifested through reason is true rather than merely being meaningful -- but delusional – in character, one starts at no justifiable beginning and one works to no justifiable end via a means (a process of reasoning) that has not been justified.
When Archimedes claimed that if someone would give him a place to stand, he would be able to move the Earth, he may have been correct in principle. However, one still is left with the unresolved problem of finding the appropriate place upon which to stand and from which one will leverage movement of the world.
Similarly, one can make all kinds of claims on behalf of the ‘light of reason’ and how it can leverage this or that truth when used in conjunction with the fulcrum of eternal and universal laws. Yet, one still is left with the problem of having to locate the ‘space’ through which ‘proper reason’ (the right sort of lever) can be exercised, just as Archimedes was left with the problem of having to find the appropriate portion of ‘space’ from which to undertake his attempt to move the Earth.
Through the use of the light of reason, one might be able to differentiate between ‘good’ and ‘evil’. However, one’s conception of what is ‘good’ or ‘evil’ is likely to be affected by whether, or not, such light is naturally or artificially generated since conventional, or man-made light, might not illumine reality in the same way that natural light does.
One might wish to define “sin” as those acts that interfere with the capacity of the light of reason to grasp the nature of eternal, universal laws. Given such a perspective, sinning is the process through which one cuts oneself off from both the proper function of reason as well as from the universal, eternal laws that reason – when operating properly – is designed to be capable of understanding.
Nevertheless, one still needs to know which acts undermine reason in the foregoing fashion. Moreover, one needs to know what is necessary to counter the alleged toxic effect of such acts.
Theologies of all different kinds purport to provide answers to the foregoing questions. Nonetheless, providing an answer that is meaningful in some sense does not necessarily make such a response an accurate reflection of some aspect of the universe or Being … one still needs a demonstrable justification for why one should accept such ‘answers’ as being not only plausible possibilities, but also ones that are highly likely to be true.
Notions such as: ‘good and evil’, ‘sin’, ‘self-evident’, and the ‘light of reason’, are all entangled in conundrums that require us to separate out the wheat from the chaff … or the conventional from the natural -- to whatever extent such separation is possible. This is not to say that there are no realities corresponding to terms such as: ‘sin’, ‘good and evil’ or the ‘light of reason’, but it does indicate that there are many challenges surrounding our attempts to differentiate the true and the false in those matters.
‘Justice’ has been described as that which is in accord with the exercise of reason. Anything which deviates from such reasoning is said to give expression to injustice in some sense.
The first act of justice is to affirm the truth of a matter. One does justice to the nature of reality and to the exercise of reason when the latter reflects the former.
If reason is that aspect of a human being which is capable of grasping the character of natural, eternal, universal laws, then one understands how someone operating out of such a framework conceives of justice as giving expression to that aspect of natural law that is grasped by reason. However, if this is not to become an exercise in tautological or circular reasoning, one has to be able to demonstrably justify claims concerning the existence of such laws as well as reason’s role in accurately capturing the structural character of those laws.
If a State/Nation rules in accordance with the requirements of justice and, thereby, correctly uses reason to engage the natural, eternal, universal laws of the universe/Being, then failure to comply with the requirements of such governance would not be justifiable? Whether, or not, such an ‘if-then’ claim is demonstrably defensible in some non-arbitrary way is another matter.
Moreover, if the relationship among: justice, reason, State/Nation, and natural law cannot be demonstrably justified in some non-arbitrary fashion, then one can ask: What is the basis for claiming that citizens are obligated to comply with the manner in which a given State/Nation governs the people who live in a certain geographical location? Unless one can demonstrate that the way in which a State/Nation governs people reflects the natural laws of the universe, then such governance is a function of man-made conventions that are entirely arbitrary, and, consequently, any concomitant notions of duty and obligation are equally arbitrary and incapable of being justified independently of the system of conventions which is governing things with respect to such a State/Nation.
Is the relationship of an individual with other individuals a matter of a social contract? If so, then one not only needs to know the nature of how the three basic components of a contract – namely, offer, acceptance, and consideration -- come together under such circumstances, but, as well, one needs to know what justifies any given arrangement involving: offer, acceptance and consideration since arrangements that are shaped by: coercion, duress, fraud, undue influence, exploitation, and disinformation, or which prevent a person from taking an active role in the forging of such a contract tends to invalidate contracts and, thereby, suggests that arrangements involving these sorts of tactics cannot be justified.
If one were to suppose that the origins of political association are rooted in some notion of social contract, what is one to make of those people who do not want to participate in such a contract? Can one really suppose that because some people wish to be governed by a particular form of social contract, then everyone should be bound by the same contract? How does one justify the introduction of ‘ought’ into such circumstances in a non-arbitrary manner?
Is there some ‘standard’ social contract to which everyone must commit herself or himself? How does one justify either the meaning of ‘standard’ or the force of ‘ought’ that is present in such an arrangement?
The ‘rights’ which are entailed by such contracts are necessarily reciprocal in nature since otherwise those arrangements would be seen as being inherently unfair. On the other hand, the fact that everyone is entitled to the same set of rights does not, in and of itself, necessarily mean that such rights will be in the best interests of the people involved.
The relationship between rights and welfare is not necessarily straightforward and automatic. Some rights might be more conducive to realizing what is in the interests of one’s welfare, whereas other rights might not be so conducive.
For example, the right to consume any and all drugs is not necessarily in one’s best interests simply because, empirically speaking, there are many drugs which have been demonstrated to have problematic dimensions to them … including qualities of being lethal or injurious to health. On the other hand, having the right to explore the pros and cons of whether, or not, in any given instance, the consumption of drugs is in one’s best interests might be a reciprocal right that is worth having.
Some people (e.g., Hobbes) wish to make a distinction between natural law and natural rights. According to such individuals, natural law concerns that which binds one to a certain course of action, whereas natural rights involve the degrees of freedom which one has to either do or not to do some given activity.
However, what such people seem to overlook is that any claims concerning natural rights either do, or do not, reflect the nature of reality. If such claims do reflect some facet of reality, then the structural character of the rights at issue is a function of the way in which natural law operates in the universe … that is, one has the right to do, or not to do, certain things only to the extent that the natural laws of the universe permit or delineate such a right.
If, on the other hand, claims concerning the existence of natural rights do not reflect specific principles inherent in the universe which give expression to such entitlements, then claims concerning ‘natural rights’ are a matter of arbitrary conventions. Considered from this perspective, those sorts of rights are not ‘natural’ and might not even necessarily be the sorts of activities to which one is entitled … and, therefore, they are not necessarily something to which the label “rights” applies.
Claiming that one is entitled to perform, or not perform, a given sort of activity must rest on something more than one’s claim to entitlement. Entitlement must be rooted in an argument which is capable of demonstrably justifying such claims in a non-arbitrary fashion.
If rights arise out of the nature of a given form of social contract, then those rights are dependent on the structural character of that contract for the source of authority that lends a sense of entitlement to such rights. If rights arise out of the nature of the universe, then those rights are dependent on the structural character of the universe to justify their claims concerning entitlement.
Rights do not exist independently of a context – whether natural or man-made. Moreover, irrespective of whether that context is rooted in the way of universal laws or rooted in the way of a man-made social contract/legal system, one cannot separate the idea of rights from a surrounding framework of law, natural or otherwise, which spells out the character of the entitlement that is said to be involved with the exercise of those rights.
Rights constitute a certain kind of political and ethical manifestation that gives expression to the dynamics of law-like principles. This is true whether those dynamics are man-made or reflect the nature of the universe in some inherent sense.
Nowadays, the term “natural rights” tends to be much more in vogue than the idea of “natural law”. Nevertheless, one cannot focus on the issue of ‘natural rights’ unless one understands that ‘law’, in some sense, forms both the environment as well as the root system through which the general meaning and specific details of that idea are nourished and shaped.
What is true with respect to ‘natural rights’ is also true in relation to the notion of: ‘civil rights’. However, whereas use of the qualifier ‘natural’ is intended to allude to the idea that such rights are somehow inherent in the nature of existence (self-evidently or otherwise), the qualifier ‘civil’ is intended to allude to a context of conventions which authorize the associated rights.
Nonetheless, in both cases (natural and civil) the source of authority for such rights comes from the surrounding system of either natural or man-made laws. Civil rights are supposed to reflect the structural character of the underlying system of conventional laws just as natural rights are supposed to reflect the structural character of the underlying nature of the universe
In the Declaration of Independence, the relationship between rights and power is different than is the nature of that relationship in the Philadelphia Constitution. In the former document, governments exist purely for the sake of securing rights for the people, whereas in the Philadelphia Constitution, powers are not vested in government for the purpose of securing the rights of citizens.
The Bill of Rights outlines what governments supposedly cannot do. The Constitution, on the other hand, is about the procedural uses of power that can be used for any purposes whatsoever as long as such uses can be reconciled – broadly speaking and in an almost completely amorphous sense -- with the purposes set forth in the Preamble to the Constitution, and as long as such powers do not impinge on the rights of people.
The Declaration of Independence was about empowering the people through the presence of rights. The Philadelphia Constitution was about empowering government quite independently of rights.
In fact, the nature of the Philadelphia Constitution was geared to prevent rights from interfering with the so-called ‘explicit’ powers of federalized governance. Moreover, according to the Philadelphia Constitution, whatever rights existed would have to be filtered through the process of governance … people did not have rights independent of that process.
The power to govern might be derived from the people. However, once such power was derived, the rights of people became secondary to the exercise of power. National interests (that is, the process of exercising power through federal offices) often tended to trump claims concerning individual rights.
Although Madison was the person who initiated a congressional discussion about the issue of amendments – some of which had to do with the rights of citizens – nevertheless, he previously had been resistant to the idea of any kind of amendments. If one leaves aside Madison’s pragmatic beliefs that introducing amendments into the constitutional conversation was inherently messy, problematic and would lead to critical delays in the establishment of a national government, Madison had been of the opinion that amendments were unnecessary for several reasons -- and some of the following considerations have been touched upon earlier but are being reintroduced here for purposes of clarity, context, and emphasis.
First, Madison insisted that the powers of government that were outlined in the Philadelphia Constitution were explicit and, therefore, strictly limited. Consequently, he believed that the likelihood of such powers encroaching on the ‘natural’ rights of people was very unlikely.
Secondly, because the Philadelphia Constitution guaranteed each state a republican form of government, Madison believed that those in government would never transgress beyond the limits of the explicit powers that had been granted through the Constitution. For Madison, the philosophy of republicanism served as an ethical restraint on the way the government interacted with the people and, as a result, would be the means through which the natural rights of the people were protected.
Madison was quite wrong in a number of ways with respect to his understanding of how the theory of governance would be translated into actual practice. For example, almost from the very beginning, the federal government began to push the envelope in relation to the meaning of “explicit” or enumerated powers via the notion of the implicit dimensions that were said to be inherent in the allegedly limited nature of such enumerated powers … and the “necessary and proper” clause frequently played a crucial role in this respect. In addition, almost from the very beginning, the administrators of the federal government failed to live in accordance with the requirements of the guarantee of republican governance.
In any event, ‘rights’, ‘justice’, ‘governance’, ‘obligation’, ‘duty’, ‘social contract’, and ‘reason’ form a cluster of related ideas. One can wire that cluster together through conventional – and, therefore, arbitrary … although meaningful – means, or one can try to come to understand how (of if) such phenomena are wired together by reality.
In general, the notion of ‘sovereignty’ alludes to the capacity of an individual, State/Nation, and/or ruler to determine one’s own fate within the limits permitted by the natural and/or conventional framework that serves as the source of such sovereignty. The nature of sovereignty tends to be a child of the source which engenders it.
For instance, if one considers sovereignty to be an act of will, then sovereignty becomes a matter of one’s ability to translate personal interests, purposes, and inclinations into some sort of a realized status. If, on the other hand, one considers sovereignty to be a function of intellect, then sovereignty becomes a matter of one’s ability to think one’s own thoughts without interference from others … although such a notion of sovereignty does not necessarily entail a right to act on such thoughts.
Alternatively, if one considers sovereignty to be about one’s essential potential, then sovereignty becomes a matter of having control over how – and to what extent – such a potential unfolds over time. Finally, if one considers sovereignty to be a matter of weaving together components of will, intellect, and essential potential, then one will be concerned with being able to weave the complete tapestry of one’s life via choice.
Questions arise, however, when one begins to reflect on the possible limits of sovereignty in those instances when one’s mode of determining one’s own fate interferes with the ability of other individuals, States/Nations, and rulers to give expression to their respective inclinations for determining their fates. Moreover, questions begin to arise when one reflects on whether, or not, some given expression of sovereignty (individual, State/Nation, or ruler) should be given priority over the sovereignty of others and under what conditions, if any, and to what extent.
Once again, some sort of non-arbitrary form of justification must be given in relation to one’s claims. This is so not only in the matter of demonstrating why one sense of sovereignty might be preferable to another, but, as well, one must show how the attempt of one individual, State/Nation, and/or ruler to give expression to sovereignty fits in with the attempt of others to give expression to their own sense of sovereignty.
Is sovereignty a right – natural or civil? Is sovereignty a matter of a social contract? Is the issue of sovereignty related to our essential nature, if any, and, if so, what is the nature of that relationship? Does the search for sovereignty necessarily entail conflict with others, and, if so, how does one go about trying to manage that conflict? Does the search for sovereignty require cooperative efforts, and if so, what sort of efforts are indicated? Do human beings actually have sovereignty in any of the foregoing senses?
As previously indicated, there are two broad approaches to the foregoing sorts of questions. One approach is rooted in natural law, while the other approach is rooted in conventional or man-made systems.
Irrespective of one’s approach, there is a need to be able to demonstrably justify what one is doing. This is certainly the case when one is dealing just with oneself, but this becomes especially necessary when what one decides in this regard has ramifications for the lives of other people.
There are a further set of questions that arise when those who take different approaches to the issues of sovereignty rub up against one another. For example, should conventional accounts be given preference over those accounts that are rooted in natural law? ... or, vice versa and -- if so -- why? Is it possible for natural law and conventional accounts to co-exist with one another, and, if so, how and why should this be done?
Some people might wish to argue that the idea of natural law is static because it gives expression to unchanging, eternal, universal principles. If this is true, then according to such individuals, the idea of natural law provides no room for evolution or development to occur with respect to matters of: ‘justice’, ‘rights’, ‘governance’, ‘sovereignty’ and so on as historical circumstances change.
Such an argument is flawed. Just as one might argue that even though the principles through which the material/physical world operates remain the same throughout history, nevertheless, over time, scientists dynamically enrich their understanding of those principles, so too, one might argue that even though the natural laws of the universe concerning political and ethical issues might remain the same (or, so, it is being assumed for the moment), the manner in which those issues are understood could still be enriched with the passage of time.
Moreover, the same sorts of problems that confront scientists with respect to the material/physical world also confront human beings with respect to the political/ethical world. That is, in both instances individuals must search for those sorts of understanding which can be demonstrably justified in non-arbitrary ways … in ways that are independent of one’s assumptions concerning the nature of reality.
Epistemologically speaking, to claim: Reality is, ultimately, a function of material/physical principles, provides no inherent advantage relative to those who claim: Reality is, ultimately, a function of divine principles … and vice versa. This is because, epistemologically speaking, we really don’t know what it means to say that reality is a function of material/physical principles since – despite considerable advances in, among other things, quantum physics, astrophysics, and biochemistry -- we don’t understand how such principles made the universe possible, or how they naturally led to a set of some 19 physical constants (e.g., the speed of light, the gravitational constant, and the charge of an electron … to name but a few) having the precise character they do, or how such material/physical principles led to the emergence of life, consciousness, intellect, language, or creative talent. Correlatively, we really don’t know what it means to say that reality is a function of divine principles because we don’t necessarily understand how or why the universe came into being in the way it did or what any of this means with respect to human beings.
We all have theories that we consider useful and meaningful concerning the relationship of science and/or religion to the nature of reality. However, what we find to be useful and meaningful in that regard doesn’t necessarily make such things true or right.
Science rushes to discover the nature of the universe, and religion rushes to discover the nature of the universe, and philosophy rushes to discover the nature of the universe, and mathematics rushes to discover the nature of the universe. Yet, meanwhile we are immersed in ignorance with respect to so many things, even as we are awash in emotions of certitude concerning our alleged understanding of life and the universe … emotions which stand in need of having to be demonstrably justified in some rigorously non-arbitrary, non-circular, non-tautological, and non-presumptive manner.
Whether one is seeking the laws of the natural world or one is seeking the laws of a world of conventions, one’s search is enveloped in ignorance. In fact, one might argue that the very first reality which both approaches encounter involves the struggle to realize the presence, nature, and scope of our ignorance.
Understanding is shaped as much by what we don’t know as by what we do know. Moreover, both individually and collectively, what we don’t know far outweighs what we do know.
The first challenge to both natural and conventional approaches to seeking the nature and character of the political and ethical laws that are to govern is, in part, a function of our ignorance concerning those matters. We are theory-rich and knowledge-poor with respect to all of the foregoing issues … and wisdom concerning what little we do know is even rarer.
Consequently, the very first theme of commonality that links the perspectives of the proponents of both natural and conventional approaches to understanding the manner in which political and ethical themes might be given expression through the idea of law is the need to overcome the ignorance that currently ‘informs’ their respective understandings concerning the nature of experience. To the extent that ignorance colors and shapes the nature of one’s understanding, then to that same extent does one stand in need of an opportunity to shrink the ignorance with which one is confronted.
Every human being is in need of the opportunity to push back the horizons of ignorance. Without the opportunity to dissolve the filters of ignorance which color our perception of experience, one cannot take any viable steps with respect to generating demonstrable forms of justification that indicate why, and how, pursuing existence through one means rather than another, or for one purpose rather than another, are potentially more heuristically valuable, relative to other possibilities, in one’s search for truth.
In the foregoing sense, one might speak of a palimpsest theory of natural law. The surface ‘artwork of the phenomenology of experience concerns the pattern of our existential ignorance concerning the nature of reality, whereas the actual ‘artwork’ of Being is what would be understood if all ignorance – which currently obstructs our view of reality -- were removed.
Whether, or not, one will ever be capable of removing such ignorance, in part or in its entirety, is not the point of the foregoing palimpsest approach to such issues. Rather, the thrust of this manner of engaging our existential dilemma is that we all are in need of a fair opportunity to be able to explore those possibilities.
Given the foregoing, the challenge then becomes one of determining how to proceed in the face of the aforementioned facets of ignorance and need in relation to our existential condition. However, one cannot suppose that just any mode of proceeding will be acceptable or satisfactory.
More specifically, one would like to avoid – as much as possible – anything that smacks of being arbitrary. In other words, there should be some degree of demonstrable justification – that is, independently generated and defensible critical assessments -- associated with our choices … especially, if such choices have ramifications for other people’s opportunity to explore the possible palimpsest character of natural law.
Therefore, one important limit concerning any given person’s opportunity to push back the horizons of ignorance concerns the manner in which an individual’s choices adversely impinge on, or undermine, the opportunity of other people to seek to push back the horizons of ignorance in their own way. This is a reciprocal limit in the sense that the activities of any given individual concerning the issue of ignorance must harmonize with the activities of other individuals in relation to a similar sort of project … harmonize in the sense of not actively interfering with other such projects even though the details of these reciprocal pursuits might be quite dissimilar in character.
In short, no one has a demonstrably justifiable right to impede, obstruct, undermine, terminate, or constrain another person’s attempt to push back the horizons of ignorance. This state of affairs remains in effect as long as the activities of the latter individual do not impede, obstruct, undermine, terminate, or constrain the reciprocal opportunities of other individuals concerning this same issue of ignorance.
Irrespective of whether one believes that political and ethical considerations are inherent in the natural order of the universe or one believes that all such considerations are generated by arbitrary conventions, the challenge of ignorance is the same. As such, one could argue that despite their differences, the two aforementioned approaches for determining the political and ethical character of issues concerning matters of governance tend to arrive at the same sort of conclusion independently of one another.
Independent confirmation is an important consideration in assessing whether, or not, a given perspective is justifiable in some non-arbitrary way. When two individuals have different interests, inclinations and purposes and, yet, they arrive at the same conclusion, this tends to point to something of potential significance, and this would seem to be the case in the matter of the first principle of the possible palimpsest character of natural law.
A person begins with an acknowledgement of her or his relative ignorance concerning the nature of reality. Such an individual recognizes that he or she needs to have an opportunity to be able to search for a way to push back the horizons of ignorance in order to have a chance to be able to proceed in life in a non-arbitrary fashion. Finally, this person understands that the most harmonious -- and, therefore presumably, the least problematic way -- in which to proceed is to ensure that a condition of reciprocity is extended to other individuals with respect to their engagement concerning the same challenge of ignorance – that is, others are in need of the same opportunity to push back the horizons of ignorance as one has recognized with respect to oneself.
One might refer to the foregoing set of conditions as giving expression to the natural law of ignorance. This would be the first step in trying to determine, if possible, the underlying nature of the ‘artwork’ in the possible palimpsest character of natural law.
The natural law of ignorance is not a reflection of the ultimate nature of the universe. Rather, it is a reflection of a facet of the structural character of the sort of methodology one requires in order to be able to engage such issues within a context that is populated by other individuals who have similar needs.
The natural law of ignorance gives expression to a project in moral epistemology. It is the first step in a journey to struggle toward trying to grasp the character of the political and ethical principles that are necessary to permit everyone to have a fair opportunity to push back the horizons of ignorance that permeate our lives.
The natural law of ignorance is ‘natural’ because it does not reflect a man-made convention. Instead, this law reflects the actual character of our existential condition which can be grasped through the exercise of reason … something that most of us intuit as being a naturally rooted capacity through which to engage and assess the nature of experience even as we simultaneously understand that reason can be ‘captured’ by man-made conventions and, thereby, serve the interests inherent in the latter.
Sovereignty is rooted in the natural law of ignorance. We are sovereign to the extent that we have a fair opportunity to explore the possible palimpsest character of reality, and any departure from such a standard of fairness constitutes an arbitrary – therefore non-justifiable -- exercise of power by other individuals or the collective.
The natural default state of existence is ignorance. In order to be able to legitimately depart from such a default state – especially in the context of circumstances in which such a departure would disrupt or problematically affect the opportunity of others to explore the possible palimpsest character of reality in a reciprocal fashion -- one must be able to demonstrate in a non-arbitrary manner that departing in such a manner is justified.
The standard for epistemologically justifying such a departure is set fairly high in the case of individuals. After all, demonstrating the likely truth or rightness of something in a non-arbitrary fashion is fairly difficult even when restricted to one individual acting on his or her own.
When it comes to groups, communities, or societies, the standard for epistemologically justifying such a departure is set even higher. This is due to the manner in which any political and ethical departure from the default condition of inter-subjective ignorance is likely to create problems with respect to everyone continuing to have an equally fair opportunity to explore the possible palimpsest character of their existential condition.
The foregoing difference is comparable to the manner in which civil and criminal cases are settled in the court system. In civil cases, verdicts are built around the idea of a preponderance of evidence, and when individuals act in a manner that does not interfere with the opportunity of others to explore the possible palimpsest character of reality, then being able to satisfy the standard of a preponderance of the evidence seems, at least on the surface, to be a defensible way of doing things.
In criminal cases, however, the standard for verdicts involves the idea of ‘beyond a reasonable doubt’. If someone is going to act in a way that affects the opportunity of others to be able to fairly explore the possible palimpsest character of reality without interference or difficulty, then one really needs to justify such an action in a way that is beyond all reasonable doubt.
Of course, the foregoing outline leaves one in the dark about what constitutes either: a ‘preponderance of evidence’ or being ‘beyond a reasonable doubt’. Nevertheless, what the above distinction does indicate is that there are two very different standards of justification concerning, on the one hand, those individual acts that are done in a way that does not adversely affect others continuing to have a fair opportunity to explore the possible palimpsest character of reality, and, on the other hand, those acts that carry serious ramifications for the ability of others to continue having a fair opportunity with respect to pushing back the horizons of ignorance.