|
Etica
& Politica / Ethics & Politics, 2003, 2 http://www.units.it/etica/2003_2/VANDUN.htm
Natural
Law. A Logical Analysis
1. Introduction The premise
of this paper is that anarchocapitalism, at least in its Rothbardian version,
(1)
presupposes the existence of a natural order or law of human affairs. In the
next sections of this introduction I shall briefly explain the sense in which
natural law is crucial to an understanding of anarchocapitalism, namely as an
order of human agents or natural persons. The concept of law as an order of
persons is analysed in the body of the paper. I start with a discussion of the
distinction between orders of natural and orders of artificial persons. Then,
I give an admittedly partial analysis of the notion of law as an order of
persons. The analysis is presented as a formal axiomatic theory. To that
theory I add the notion of a natural person as well as the postulates that we
need for a description of natural law as an order of natural persons. In the
last two sections, I discuss various ways in which the theory of natural law
can be linked to descriptions of human affairs and contrast the
anarchocapitalists’ view of the order of the human world with the
alternatives that have come to dominate political and social thought. 2.
Anarchocapitalism and natural law
The radical libertarian theory of anarchocapitalism
rests on the concepts of natural law and natural rights. It is a
reconstruction of economic theory that aims to prove the self-sufficiency of
an economic order (2) of sovereign natural persons and their voluntary
associations. It also seeks to demonstrate how rights-violating interventions
(crimes) disturb and weaken that order, especially when they have a
systematic or institutionalised character. (3) Anarchocapitalists probably are best known
for their relentless critique of the state, its coercive practices
(war-making, taxation, regulation, monopolisation of vital activities) and
also of social organisations and institutions that have come to rely on
subsidies and privileges granted or protected by the state or its legal
system. However, the purpose of their critique of politics and politicised
society is not to identify assorted ‘inefficiencies’ and then to propose
reforms that will make the state and its client-organisations more efficient.
Rather, they want to reveal, by theoretical argument and historical and
comparative studies, the wide range of alternative non-coercive, voluntary
and just ways of doing things that the state has displaced or crowded out.
Thus, they apply Bastiat’s distinction between ‘what is seen and what is not
seen’ (4)
to reveal the inevitable state-induced loss of freedom and justice and also
the spuriousness of claims concerning the ‘overall efficiency’ of political
ways of doing things. The philosophical basis of anarchocapitalism is the conviction that
we live in a real world where real, fallible human beings think, speak and
act, feel, enjoy and suffer. The supposition is that the world is constituted
by a multitude of separate, diverse, individual—but not isolated—human agents
whose survival and well-being depend on their ability to produce (find, make,
transport) useful things and to get along peacefully with one another. Thus,
anarchocapitalist analysis always involves lifting the ideological, corporate
or social veils that obfuscate our view of the human world and the
individuals who live and act in it. However, the analysis does not stop at a
mindless empiricism that merely registers the antics and opinions of human
beings. It proceeds to categorise and judge them by the principles of order
that it finds within the ontological structure of the human world. In short,
anarchocapitalism, in its Rothbardian form, stands or falls with its
supposition that there is a natural order—a natural law—of the human world
and that each human person has a place in that order that is delimited by his
or her natural rights. Moreover, in addition to the theoretical importance
all anarchocapitalists attribute to the natural law, many of them subscribe
to the view that the natural law is normatively significant and consequently
that it is an order people ought to respect. That is why a proper
understanding of natural law and natural rights is necessary for a sensible
critique of the theoretical and normative claims of anarchocapitalism. 3. Understanding ‘natural law’:
caveat lector! ‘Natural law’ is a controversial concept. First of
all, there is the unfortunate habit of using ‘law’ as an all-purpose word for
referring indiscriminately to, among other things, an imposed rule (‘lex’), a
rule validated by immemorial custom or practice and not invalidated by
reason, a deduction from a description of some ‘ideal society’, an agreement
among rational beings (‘ius’), and a condition of order. (5) As a result, many
people fail to distinguish between ‘law’ in the sense of a rule that ought to
be obeyed or followed (as one would obey or follow a commander or a teacher)
and ‘law’ in the sense of something that ought to be respected (as one would respect another person or, say, a thing
of beauty). Understandable misgivings about ‘natural laws’—assuming these to
be rules that we ought to follow because they supposedly are ‘given by’ or
‘found in’ nature—are then easily, but without warrant, extended to the notion
of a natural order of things that we ought to respect. Part of the controversy surrounding the
concept of natural law stems from the difficulty many commentators appear to
have, to take the word ‘natural’ seriously. Indeed, natural law theory often
is derided for being ‘metaphysical’ or even wedded to a particular theology.
However, the fact that some theories of natural law are metaphysical or
theological does not mean that natural law is something metaphysical or
theological. A theory of mice and men can be metaphysical but the metaphysics
is in the theory, not in the mice and not in the men. Natural law theories
are, but natural law is not, a product of the human mind, although human
minds are essential elements of the natural law. While natural law theorists
may learn from their predecessors, their object of study is the natural law,
not ‘the literature’. The purpose of this paper is to give an
analysis and explication of the notion of a natural order of human affairs,
which is logically independent of any metaphysical or theological system. It
is true that, for example, Christianity and liberalism in the classical
tradition call for respect for the natural law of the human world. (6)
Rothbardian anarchocapitalism also insists on respect for the natural order
of human affairs. It has no sympathy for any sort of ‘revolt against nature’.
(7)
However, it does not follow that the concept of natural law as an order of
human affairs in any way depends on the reasons that Christians, classical
liberals, or libertarians adduce for respecting the natural order. (8) Indeed,
the object of our respect or disrespect must exist independently of the
answer to the question whether and why we should respect it or not. There is
no difficulty here if we have in mind the natural order of human affairs,
which we should be able to describe regardless of our normative attitude
towards it. Obviously, that dissociation of the descriptive
and the normative aspects is impossible if we focus on the conception of
natural law as a system of rules, commands or practical inferences. Moreover,
that conception tends to obscure the difference between ‘natural laws’ that
merely are guideposts to a good and virtuous life and those that allow one
person to enforce his claims on others. Then the significance of natural law
becomes ambiguous: either all natural laws are mere moral admonitions or all
of them are legally enforceable requirements. That ambiguity has plagued the
interpretation of natural law theories ever since Thomas Aquinas identified
natural law and reason. 4.
Law as Order 4.1
Natural law and artificial law For the natural sciences, law is the order of
natural things as seen from the perspective of a particular discipline or
branch of physics, biology, or chemistry. The main pre-occupation of a
scientific discipline is to identify stable patterns of order and to express
them as laws of nature. Scientists also search for the conditions of
existence of those patterns to determine where they do or might break down. In the particular restricted sense in which I
shall use the word, law is an order of persons. Sometimes, the word ‘law’ is
used specifically to denote a respectable order. In that sense, law is an
order that we ought to respect. However, for our purpose, we need not concern
ourselves with the question of the respectability of an order. Persons are
purposeful rational agents, in possession of means of action that embody
their active powers and faculties and that they can use in the hope of
attaining some goal. A person’s rights (9) are his means of action and the actions
in which he employs them. (10) Again, people often reserve the word
‘right’ for the respectable means and actions of a person. (11) Law is either natural or not. Natural law, in
the general sense, is the order of natural things. In the relevant restricted
sense, ‘natural law’ refers to the order of natural persons. Usually, human
beings—at least those that have the capacity of purposive action—are cited as
the paradigmatic natural persons, although many people believe that there
also are non-human natural purposeful agents. However, those who mention such
agents usually assume that they are part of the same order as human beings or
that they somehow participate in the human world. In short, natural law is
the order of human world, if it is not simply the order of human persons. An artificial law is an order of artificial
things. Here we shall consider it only as an order of artificial persons.
Such persons are in some respects analogous to a natural person. However, an
artificial person, for example a citizen, is not a thing of the same sort as
a natural person. As we shall see in this section, ‘natural
law’ and ‘natural persons’ belong to an essentially different logical
category than ‘artificial law’ and ‘artificial persons’. There can be any
number of artificial laws but only one natural law. How we can determine what
natural persons are and can do and what the conditions are under which their
relations are in order rather than disorder, differs fundamentally from how
we can determine those matters where artificial persons are concerned. To
find out about natural persons, go live among them; to find out about
citizens, consult a lawyer! Obvious as this may be, confusion about the
categories of natural and of artificial persons is rife. The difference between natural law and
artificial law is reflected in two types of lawlessness (disorder, confusion,
conflict) and their corresponding notions of justice. A breakdown of
artificial law typically manifests itself when people fail to play by its
rules. Perhaps they refuse to do so. Perhaps the rules are such a mess that
it is hardly feasible to follow them even if one wants to. Justice, in the
setting of an artificial law, is the attempt to ensure compliance with its
rules, whatever they are. That attempt may cause more suffering than the
breakdown of artificial law. A breakdown of natural law manifests itself
when people do not heed the real distinctions between one person and another
that define the natural law. The words, actions or property of one person are
ascribed to another and action is based on the ascription rather than the
reality. One person is blamed for, or credited with, what another said or
did. The guilty and the innocent, the producers and the parasites, the
debtors and the creditors, the malefactors and the victims—they all get
confused with one another. Accordingly, justice, in the setting of natural
law, is the attempt to instil respect for the real distinctions among
persons. 4.2 An
overview of artificial law Whereas natural law is an order of persons but is
not a person itself, an artificial law can, but need not be, a person. For
example, a game of chess is an order of persons (Black, White), but the game
itself is not a person. However, each one of them is composed of other
persons: King, Queen, bishops, knights, rooks, and pawns. All of those
artificial persons are defined by the rules of the game. They are legal
persons that derive their legal personality from the rules of the game. The
rules of chess tell us what those persons are and what they can, or cannot,
do. The game itself is a legal order, a type of law. However, as the example
makes clear, not every legal order is an artificial or a legal person. It is
a matter of dispute whether every order of artificial persons is a legal
order. Every social organisation or society is an
artificial person, subdivided in various positions, roles and functions
according to its rules and regulations, whether they are written down in a
rulebook or not. For example, the State is an artificial law, a legal order
and an artificial, indeed a legal, person. It has its Head of State,
government ministers, judges, members of Parliament, commissioners, mayors,
citizens, registered aliens, etcetera. All of those are no more than
rule-defined personified positions, roles and functions of, or within, the
legal order of the state. Again, what they are and can do depends on the
rules of the game of that state, its ‘positive laws’ or legal rules. Another
example is a business corporation with its CEO, members of the Board,
financial manager, research co-ordinator, public relations officer, and so
on. A business corporation is an artificial law. It is a legal order as well
as a legal person according to its own legal rules. However, whether it has
legal personality in a particular state depends on the legal order of that
state. Obviously, the rules of chess do not tell us
anything about what those who play chess are or can do. Similarly, the legal
rules of a state or a corporation do not tell us anything about the persons who
occupy positions or perform functions or roles in their organisation. It
usually is taken for granted that those persons are human beings. However,
that is by no means a logical necessity, as Caligula demonstrated when he
made his horse a consul of Rome (12) and as modern states demonstrate when
they authorise computers, cameras and radar-equipment to act as police.
Modern corporations apparently have a great interest in getting rid of the
human factor by substituting computers and robots for their human personnel. An artificial law is defined by a logically
arbitrary set of divisions and distinctions among the artificial persons that
are its components. Those divisions and distinctions do not depend on the
physical characteristics of material things or on the natural persons that
actually play or fill the roles and positions specified by the rules of the
game. Whether in a game of chess a ‘King’ has the same powers as a ‘Queen’ or
not, depends exclusively on the rules of chess. It does not depend on the
shape or the material of the pieces, or on such conditions as whether
individual men or women, teams or computers play the game. Artificial persons have no physical
characteristics. They are not individuals. If the rules of the game that
define them allow it, they can be differentiated and split up into any number
of other persons or merged into one person. Not having any physical
characteristics, they do not exist independently of a set of rules. There is
no such thing as ‘a citizen’; there are only Dutch citizens (defined by the
positive laws of the Dutch state), Bulgarian citizens (defined by Bulgarian
law), and so on. Nor is there such a thing as ‘a King’. It depends on the
appropriate rulebook whether a King cannot be captured, can trump any other
card except an ace, dismiss the government or name his own successor.
Sometimes, there may be confusion concerning the natural or artificial status
of a person. As a person who makes a study of, say, physics or economics, one
can be a student independently of any artificial law. However, at a
university, there are numerous rules that define what ‘students’ [of that
university] are and what they can, or cannot, do. Not all students are
‘students’—and vice versa. The natural law must be defined in terms of
natural, real, objective divisions and distinctions. It is an order of
natural persons, which must be identified as they are and for what they are.
The physical and other characteristics that make something a natural person
are all-important. Natural persons are individuals. Splitting a natural
person only results in maiming or killing him. Merging two natural persons
does not result in the appearance of one new person. If there are true
statements about what natural persons are and can do then those truths must
be discovered—they do not exist by stipulation. The natural law is an
objective condition that we can describe as it is. Per se, the natural law
has no normative meaning, which is not to say that it is normatively
insignificant, irrelevant, or unimportant for natural persons. 4.3 Law
and obligation Philosophically speaking, it is an open question,
whether natural persons ought to respect the natural law. To answer that
question requires serious thought. What a natural person can do does not
translate into what he may do. What such a person ought to do does not
translate into what he must do. With respect to artificial persons, that
question does not even arise. They do not exist independently of the rules
that specify what they are or what they can or cannot do. In chess, neither
Black nor White, neither a King nor a pawn can cheat. When the question
arises whether Black, or the Black King, ought to do this or that, then it is
not as a question about his obligations under the law of chess. It is as a
question about the best next move—and the answer to that question depends
crucially on the goals or utility-functions that the rules of the game define
for the various pieces. Obviously, people can cheat when they play chess, but
even as chess-players they
occasionally may change the predefined utility-functions of the game. That
happens when granddad plays against his grandson and lets him win, or when a
teacher deliberately makes a ‘bad move’ to test his pupil’s ability to spot
an opportunity. Then they are not engaging in ‘serious play’, but they are
not cheating. For Black and White, the rules of the game
are mere descriptions of what they can or cannot do. For chess-players, those
rules translate immediately into normative formulas. ‘King can’ becomes ‘when
moving King, you may’, ‘knight cannot’ becomes ‘when moving knight, you may
not’. Likewise, what a citizen of state X can or cannot do translates
immediately into what a natural person may or may not do as a citizen of that state. Often such a person can stay clear of
the law even tough he does not play his role seriously, but occasionally a
judge or administrator will confront him with a predefined utility-function
and subject him to sanctions for not being ‘a good citizen’. No serious thought is required to answer the
question whether a natural person, considered as an actor in an artificial
order, ought to respect its rules. It is true by definition that
chess-players ought to respect the rules of chess. It is true by definition
that as a citizen of a state one ought to obey its rules. However, is it a matter of definition that
rulers ought to respect the international law? Some people say it is,
because, in their opinion, international law is a legal order in which rulers
act as states, which are artificial persons defined by the rules of
international law. Some say that the analogy of the rules of chess is even
stronger. For them, the rules of international law identify not only the
parties (states, the analogues of Black and White) but also the composition
of the parties (the constitutional order of a state, the analogues of Kings,
Queens, rooks, and pawns). In their view, international law requires that
states have, among other things, a Parliament, an independent judiciary, and
universal suffrage, perhaps even a predefined utility-function, say, a
commitment to human rights. Others say that states exist independently of
international law and that therefore international law must be derived from
the characteristics of states. For them, it is an open question whether
rulers ought to respect the international law. If it is part of the
self-definition of a particular state that it owes no respect to other
states, then obviously the rulers of that state have no legal obligation to
respect international law. To avoid the conclusion that there is no
international law, it is often maintained that international law is an
analogy of natural law. The idea is that all states are ‘independent
sovereign persons of the same kind’, irrespective of their particular size or
political characteristics. Thus, it is claimed that they are analogous to
natural persons, who are all free persons of the same kind, irrespective of
their particular physical, intellectual or moral characteristics. Then, on
the assumption that natural persons, regardless of their personal opinions,
are under an obligation to respect natural law, it is argued that, in an
analogous way, states are under an objective obligation to respect
international law. Consequently, rulers acting as states ought to respect
international law, no matter what the legal self-definition of their states
may be. Clearly, however, no amount of information
about the rules of an artificial order tells us anything about what a natural
person as such may or may not do. Whether assuming the role of a
chess-player, a citizen or an official of some state or other is a good move
in life; whether it is something that one at least has the right to do—these
questions make sense only for those who look beyond ‘the games people play’
to the people who play them. That is exactly what anarchocapitalists intend
to do. For that reason, the ruling methodological paradigm of positivism is
anathema to them. 4.4
Positivism and socialisation The central dogma of positivism in fields such as
‘law’ and ‘economics’ is that every order is artificial. There are no natural
orders, or, if there are, they are not suitable objects of scientific
investigation. Consequently, persons can be admitted as objects of study only
if they are disguised as artificial persons. In economics, positivism
typically involves the personification of ‘theoretical constructs’ (for
example, utility functions) constrained by the rules of a model or a simulation.
(13)
It fits the profile of a technology of want-satisfaction that characterises
modern neo-classical and mainstream economics, but obviously is useless for
the anarchocapitalists’ program of research into the conditions of order and
disorder of the real human world. Legal positivism concentrates on the study of
artificial ‘positive’ law while ignoring or denying that there is a natural
law. Human beings are only accidentally involved in ‘positive law’, namely as
occupying one social position or another or as performing one function or
another. Ideally, they are fully socialised. Having internalised the rules
that define it, they identify themselves completely with their position, role
or function. As Rousseau put it, they then no longer act according to their
own natural particular will. Instead, they act according to the society’s
general will, which is expressed in its legal rules. In short, they act as if
they really were citizens. However, if a human being is not fully socialised,
he or she is a ‘deviant’ and needs to be ‘corrected’ or forced to comply with
the general will. At the very least, ‘incentives’ must be administered to
enhance compliance with the legal rules. Thus, legal positivism has no resources to comprehend
relations in which people participate regardless of their social position or
function in this, that, or indeed any legal or social order. It cannot
recognise the natural convivial order of human affairs, which is the primary
object of study for natural law theorists. While legal positivism is
deficient in that respect, it also is a bearer of an ideological program of
socialisation (‘socialism’) that seeks to control the human factor to
immunise particular social orders and their artificial law from the incessant
corruptive influences of human nature. As such, it is radically opposed to
the endeavours of the natural law theorists, who are intent on humanising
societies rather than on socialising human beings. Long dominant among
adherents of the major traditions of Christianity and classical liberalism,
the natural law theorists consistently have urged that societies, especially
political societies, should respect the natural law no less than individuals.
After all, societies are nothing more than organisations of human endeavour,
ways in which people do things to one another in the pursuit of some alleged
common purpose. 5. Law as
an order of persons and their means of action 5.1 An
axiomatic approach For the moment, we shall disregard the distinction
between natural and artificial persons. We focus on the general notion of law
as an order of persons. What follows is an informal presentation of a formal
theory of law in that sense. (14)
For the sake of simplicity, we consider only persons and the means of
action that belong to them. A full analysis should consider also the actions
of persons. As we shall see, even our simplified discussion will bring to
light many patterns of order that are familiar from the philosophical and
theoretical literature on law. ‘X lawfully belongs to y’ is the basic
relation in our conceptualisation of law. It is a relation between a means of
action (‘x’) and a person (‘y’). As a synonym for ‘the means of action that
lawfully belong to a person’, we occasionally shall use the term ‘property’.
Alternatively, we shall say that if a means of action lawfully belongs to a
person then that person is responsible or answerable for that means. (15) We introduce two axioms that restrict the set
of possible interpretations of the relation ‘x lawfully belongs to y’ (which
we henceforth shall write simply as ‘x belongs to y’). Axiom
I.1. Every person belongs to
at least one person. The first axiom recognises that it is appropriate to
ask, with respect to any person, to whom that person belongs. Possible
answers to that question are that the person belongs to himself and to no other
person; that he belongs to himself and possibly also to other persons; or
that he belongs only to one or more other persons. Only the answer ‘he
belongs to no person’ is excluded. Thus, our axiom stipulates that in law
there is no person for whom no one is responsible or answerable. It is an
implication of the first axiom that every person is at the same time a means
of action for some person or persons—himself or one or more others. For
example, a corporate person is a means of action of its owners; a slave is a
means of action of its master, whether the slave is considered a person or
not. The second axiom makes persons the central
elements of law. Means of action follow the persons to whom they belong.
Thus, what lawfully belongs to a person comes to belong lawfully to another
when the former becomes the slave of the latter person (assuming there is
such a thing as lawful slavery). Obviously, the axioms allow us to define
different sorts of persons in terms of the relation ‘x belongs to y’. For example,
we can define the concepts of a real person (as against an imaginary one) and
a free person (as against one who is not free) as follows: Definition
I.1. A real person belongs to
himself. Obviously, only real persons can be free. An
imaginary person, therefore, is not free. On the other hand, a real person
who is not free must belong to some other person(s). Indeed, a real person is
not free if and only if he belongs to some other persons. We also can define the concepts of sovereign,
autonomous, and heteronomous persons: Definition
I.5. A sovereign person
belongs only to himself. It follows that free persons are sovereign. Because
of Axiom 1, it also follows that sovereign persons are free. Although the
definitions of ‘free person’ and ‘sovereign person’ differ, the two concepts
are logically equivalent within the formal theory of law. Moreover, only real
persons can be autonomous. Consequently, imaginary persons must be
heteronomous. Heteronomous persons are not free. This is a good place to introduce the
distinction between the relations among ‘masters’ and ‘serfs’ on the one hand
and among ‘rulers’ and ‘subjects’ on the other hand. If S is a heteronomous
person who belongs to another person M, then S is a serf of M, his master.
However, if S belongs to R, who is an autonomous person, then S is a subject
of ruler R. Clearly, a master need not be a ruler because the concept of a
master does not, whereas the concept of a ruler does, imply autonomy.
Likewise, a subject is not necessarily a serf because an autonomous person
can be the subject of a ruler, although he cannot be a serf. If the concept
of autonomous subject strikes one as odd, one should bear in mind that at
least one historically influential theory—Rousseau’s theory of
citizenship—was centred on the notion that, in a legitimate state, subjects
and rulers are the same persons. Rousseau’s ‘citizens’ were said to be free
because they lived under a law that they somehow had made themselves. They
ruled themselves and were their own subjects, although no individual in the
state was a sovereign person. According to Rousseau’s conception of the
legitimate state, every citizen should rule himself and every other citizen
while being under the rule of every citizen. From definitions 5 and 6, it immediately
follows that sovereign persons are autonomous. It does not follow that all
autonomous persons are sovereign. Thus, while every person is either
autonomous or heteronomous, it is not the case that only heteronomous persons
lack sovereignty. Persons—for example, Rousseau’s citizens—may be autonomous
yet not sovereign. If that is the case for a particular person, we shall say
that he is strictly autonomous. Definition
I.8. A strictly autonomous
person is one who is autonomous but not sovereign. Obviously,
an autonomous person is either sovereign or strictly autonomous. If he is
sovereign then he is free and belongs to himself and only to himself.
However, if he is strictly autonomous then he is not free because he then
necessarily belongs to some other person or persons. In that case, the latter
must in turn belong to him (otherwise he would not be autonomous). Our definitions imply that every person
either is sovereign or else either strictly autonomous or heteronomous. Thus,
in law, the class of persons is partitioned exhaustively in three mutually
exclusive subclasses of sovereign, strictly autonomous, and heteronomous
persons. About the number of persons (if any) in any of those sets, our
formal theory has nothing to say. However, some general quantitative results
can be derived. For example, we know that every non-sovereign person belongs
to at least one other person. Consequently, strict autonomy and heteronomy
appear only in a world with at least two persons. Conversely, if there is
only one person in the world, then the concept of law implies that he must be
sovereign. Also, if only one person is autonomous then he must be sovereign.
Moreover, we can use a process of inductive generalisation to arrive at the
result that all persons can be heteronomous only in a world with an infinite
number of persons. In other words, only in such an infinite world can there
be serfs who are not subjects, or masters but no rulers. Conversely, in a
world with a finite number of persons, at least one must be autonomous and
all serfs must be subjects of some ruler. 5.2
Autonomous collectives A strictly autonomous person always belongs to
another strictly autonomous person, who in turn belongs to him. Thus, he is
always ‘in community’ with at least one other strictly autonomous person.
Both of them, we shall say, are members of the same autonomous collective. Obviously,
every strictly autonomous person is a member of an autonomous collective.
Indeed, while there may be any number of autonomous collectives (subject, of
course, to the condition that such a collective must have at least two
members), a strictly autonomous person is a member of one and only one
autonomous collective. That is so because every member of an autonomous
collective belongs to every one of its members. Consequently, if a person is
a member of autonomous collectives C1 and C2, he belongs to every member of
both collectives, every member belongs to him, and therefore (by Axiom 2)
every member of C1 belongs to every member of C2, and vice versa. Then the
members of C1 and C2 are members of the same autonomous collective, and C1
and C2, having the same members, are the same collective. By Axiom 2, whatever belongs to a member of
an autonomous collective belongs to every one of its members. An autonomous
collective, therefore, is a perfect community, exhibiting a perfect communism
of persons and their means of action. The members of an autonomous collective may
be masters and rulers of other persons. The latter are the serfs and subjects
of each of the members. The members, of course, are rulers and subjects of
one another. However, as autonomous persons, they cannot be serfs of any
master. Nor can they be the subjects of any ruler who is not a member. Autonomous collectives are well known in the
history of the philosophy of law and rights. For example, we may represent
Hobbes’ natural condition of mankind as an autonomous collective. In the
natural condition, Hobbes wrote, there is no distinction between ‘mine’ and
‘thine’ as every person has a right to everything, including ‘one another’s
body’. Consequently, there is no distinction between justice and injustice. (16) His
argument was that the autonomous collective of the natural condition was an
impractical, indeed life-threatening state of affairs. For him it was a
dictate of reason that men should abandon the condition of the autonomous
collective and should reorganise in one or more ‘commonwealths’. Each of
those would be defined by the relationship between a free person
(ruler-master) and a multitude of subjects (who are also serfs). No less famously, Rousseau’s conception of
the State is one of an autonomous collective. The social contract requires
every human person who becomes a party to the contract to give all of his
possessions, all of his rights, indeed himself, to all the others. In this
case, the members of the autonomous collective give up the distinctions
between ‘mine’ and ‘thine’ and between justice and injustice. Unlike Hobbes’
men in the natural condition, however, the members of Rousseau’s civil
autonomous collective are not supposed to act according to their particular
‘natural will’ (their human nature). They are supposed to act as ‘citizens’,
according to the statutory ‘general will’ of the collective itself. We have
to suppose that the general will is the same for all citizens qua citizens,
because by definition a citizen qua citizen is animated by nothing else than
the statutory purpose of the association. Rousseau’s citizens, therefore, are
committed to act according to the legal rules that express the determinations
of the ‘general will’ in particular circumstances. Rousseau set out to prove
to his own satisfaction that an autonomous collective could be a viable
option, at least in theory, if certain conditions were met. The essential
condition was that a political genius should succeed in turning natural men
and women into artificial citizens of the right kind. Rousseau and Hobbes, then, agreed on the
thesis that natural law — the principle of freedom among likes (natural
persons of the same kind) — had to be replaced by positive legislation. Rousseau,
however, thought that it was theoretically possible to reproduce the formal
characteristics of natural law as ‘liberty and equality’ for the members of
an autonomous collective. That was the basis of his claim to have ‘squared
the political circle’, that is, to have proven that the state could be
legitimate, in accordance with the formal requirements of justice. Formally,
his solution requires that we distinguish sharply between natural persons and
citizens. We have to suppose that for every Jean and Jacques, members of the
same autonomous collective, there is a person that is different from both, a citizen Jean and a citizen Jacques. We also have to
suppose that the latter ‘civic personae’ are merely numerically different
manifestations of the same person, the Citizen. We can express those
suppositions formally as follows: * For
every member of an autonomous collective there is another person who is his
civic persona. * The
civic personae of any two members of the same autonomous collective are identical. The relation between a natural person and his
legal or civic personality (in Rousseau’s theory) should be represented as * A
member of an autonomous collective legally
belongs to his own civic persona but the latter does not legally belong to him. *
Whatever belongs to a member of an autonomous collective legally
belongs to his civic persona. Thus, the natural persons Jean and Jacques
may be members of the same autonomous collective (‘the People’), and then
they are strictly autonomous in their dealings with one another. On the other
hand, as natural persons they also legally and heteronomously belong to their
own civic persona, the Citizen. They are subjects and serfs of the Citizen,
who is a sovereign person. Hence, the Citizen may use force against them to
free them from their own human nature and to make them into what they
presumably want, and by accepting the social contract have committed
themselves, to be: citizens. That, of course, is Rousseau’s ‘paradox of
liberty’. (17)
It is not really a paradox within his system: there is no place for free
natural men in the state, as they would immediately destroy the unity that is
the necessary condition of the sovereignty (hence the liberty) of the
citizen. Note that we had to introduce a modal notion
of belonging, namely ‘to belong legally’, to make sense of the theory. The
way in which one natural person belongs to another natural person cannot be
the same way in which one such person belongs to some artificial persona. Indeed,
if A is a natural member of an autonomous collective and A belongs to his
civic persona c(A) in the same way in which he belongs to the other natural
members of the collective, then c(A) would be just another member of the
collective — a strictly autonomous person. Rousseau’s theory of the state
then would be simply Hobbes’ theory of the natural condition of mankind with
an additional number of ghostly fictions participating in the war of all
against all. Hobbes’ theory of the social contract, by the way, also had to
introduce a ‘legal’ notion of belonging. Politically,
in the state, the subjects belong to the ruler. However, the latter legally belongs to the citizens, who
supposedly have ‘authorised’ him to do what he wants. Thus, the Sovereign
legally is the ‘actor’ or agent, of whose actions the citizens are legally
supposed to be the ‘authors’. Consequently, he rules them by their own
authority. We should also note that Rousseau’s
‘solution’ to the problem of the legitimate state rests crucially on his
inversion of the natural order of things. While the common aspect-person (the
Citizen) is the product of the human imagination, the theory elevates him to
the status of a sovereign person for whom his creators are merely subjects
and serfs. It takes ‘L’imagination au pouvoir!’ very literally indeed.
Rousseau’s theory redefines the perspective on order among persons in terms
of a ‘legal’ notion of belonging that requires a reference to the common
aspect-person, the Citizen. That Citizen is the civic persona c(P) of every
human member of the autonomous collective created by the social contract. If
it were not for the inversion of the natural order of things, the notion of
an aspect-person would be unobjectionable. For example, assuming that * Aspect-persons
are the serfs of the persons from whom they were abstracted, aspect-persons simply would be heteronomous
(artificial or imaginary) persons under the responsibility of their human
masters. Then, Jacques’ rights-as-a-citizen could never supersede his personal
rights. Thus, article 2 of the Declaration of the rights of Man and Citizen
(1789) asserted that the protection of natural rights is the sole function of
political association. In other words, the citizen was to be no more than a
tool or instrument for safeguarding the natural rights of natural persons,
all of which ‘are born and remain free and equal in rights’ (article 1 of the
Declaration). 5.3 Rights In this section, we introduce ‘rights talk’,
without adding anything to the theoretical apparatus we have used so far. We
reduce the notion ‘right to do’ fully to the notion of ‘belonging’. First, we
define the notion of a right to deny a person the use of some means. Definition
I.9. P has right to deny Q the use of X =: either X or
Q belongs to P, and P does not belong to Q. Note that this definition merely states the truth-conditions of statements of the form specified in the definiendum. Thus, to refute the claim that P has right to deny Q the use of X, one may point out that neither X nor Q belongs to P or that P is a serf or subject of Q. As an immediate consequence, we have the
theorem that no person has right to deny himself the use of himself. Indeed,
according to definition 9, the statement that a person has right to deny
himself the use of himself is true if and only if that person belongs to
himself and does not belong to himself—but that is a contradiction, which
cannot be true. Another consequence is that a person has right to deny
himself the use of any means only if it belongs to him. The right to deny the
use of a means to a person does not belong to one to whom that means does not
belong. Making use of definition 9, we now define the notion of a right to
use some means (or person) without the consent of some person. (18) Definition
I.10. P has right to the use of
X without the consent of Q =: X belongs to P and Q has no right to deny P the
use of X. Obviously, if a person P has right to the use of
some means without the consent of person Q, then Q has no right to deny P the
use of it. It also follows that all real, and only real, persons have right
to the use of themselves without their own consent. An imaginary person does
not have that right because he does not belong to himself. Definition
I.11. P has absolute right to
the use of X =: P has right to the use of X without the consent of any
person. Not surprisingly, all autonomous, in particular sovereign, persons have the absolute right to the use of themselves. No person has right to the use of a means
that belongs to an independent other person (that is, one that does not
belong to him) without the consent of that person. Because a sovereign person
is independent of any other, it also follows that no person has the right to
the use of a sovereign person’s property without his consent. On the other hand, if person P belongs to Q then Q
has right to the use of P and what belongs to P without his consent. For
example, a master has the right to the use of his serfs and their belongings
without their consent. For heteronomous persons (serfs) we have the following
theorems. For every heteronomous P there is a person Q who has right to the
use of P without his consent. If P is a heteronomous person then there is
another person Q who has right to the use of P’s means without his consent.
Also, if a means belongs to a heteronomous P then there is a person Q without
whose consent P has no right to the use of that means. Concerning autonomous collectives, we see
that a member of an autonomous collective has right to the use of all other
members’ means without their consent. Moreover, members of the same
autonomous collective have right to the use of each other without consent. Of
course, the autonomous collective itself may be based on a contract. That was
the case with Rousseau’s social contract, which first creates a ‘People’.
However, once the People has been created as an autonomous collective, no
further consent is required when one member, acting as a citizen, exercises
his sovereign function in making law for all the other members. Only the
constitution of the collective requires actual consent, particular
legislation does not. In our discussion so far, we have used the expression ‘x is property
of p’ as synonymous with ‘x belongs to p’. We easily can define other and
stronger notions of property. For example, we can define ownership as
follows: Definition
I.12. P owns X =: X belongs to P and to no person that
does not belong to P. Thus, a master owns what belongs to his serfs, if neither his serfs nor their belongings are the property of another, independent person. Clearly, self-owners are autonomous persons. Indeed, substituting ‘P owns P’ for ‘P owns X’ in definition 12 and making appropriate substitutions in its definiens, we find that ‘P owns P’ turns out to be equivalent to ‘P is an autonomous person’. Consequently, autonomous persons are self-owners. On the other hand, only self-owners can be sovereign, but not all self-owners need be sovereign. It also follows that an imaginary person cannot own what belongs to him, for what belongs to an imaginary person necessarily belongs to some other person who does not belong to him. To put this differently, an owner must be a real person. Again, it is worth noting the essential
implication of our definition for autonomous collectives. If a member of an
autonomous collective owns X then every member of that collective owns
X—which is another expression of the perfect community and communism of such
collectives. Of course, we could define other types of
property—for example, common property, communal property—but we shall not
overburden this informal discussion with too many definitions. A far more
interesting extension of the logical analysis results if we introduce the
concept of action by means of an appropriate set of axioms. Then we can
consider law as an order persons, their means and actions, and include in our
analysis the right to do something as well as freedoms, liberties,
obligations, inalienable rights, and harms that are relevant from the point
of view of law. However, this is not the place to expound this extension. (19)
Here, we shall continue to look at law as an order of persons and their
means. It should be clear that the relation ‘x belongs to y’ as delimited by
the axioms 1 and 2 allows us to define quite a number of concepts that are
familiar from the theoretical and philosophical literature on law. 5.4 The
general principle of justice One extension that we should consider is the
concept of innocence. We have to consider the introduction of that concept as
an extension because we do not define innocence in terms of the relation ‘x
belongs to y’. Of course, theories of law may differ significantly in their
stipulations regarding the material conditions of innocence. Nevertheless,
the distinction between persons who are innocent and persons who are not is
of the first importance in any theory of law. In fact, it is difficult to see
in what way a theory of law can be practically relevant if it does not
differentiate between innocent persons and others. One reason is that we need
the concept of innocence to distinguish between justice and injustice—and
that distinction, after all, is a primary reason for developing a theory of
law. We use the concept of an innocent person to
formulate a general principle of personal justice. General
principle of justice. In
justice, only innocent persons can be free. Thus, a non-innocent person cannot be
considered in justice to be a free person and to belong only to himself. He
must have done something or something must have happened that gave some other
person a lawful claim to his person. A non-innocent person always belongs to
some other person. While this does not exclude him from being a member of an
autonomous collective, it does rule out that he is a sovereign person. Notice
that the principle does not say that all innocent persons are free. For
example, we may have a theory of law that allows innocent persons to be
slaves or serfs. Alternatively, we may have a theory that allows corporations
or other artificial persons to be innocent and yet insists that artificial
persons cannot be autonomous. Such theories are neither necessarily
inconsistent in themselves nor formally inconsistent with the concept of
justice. From the general principle of justice, it
follows that if no person is innocent, then no person is sovereign. It also
follows that if there is only one person he must be innocent. The existence
of a non-innocent person indicates the existence of at least two persons.
Remembering what we deduced concerning autonomous collectives, we also see
that, in a world with a finite number of persons, if none of them is innocent
then there must be at least one autonomous collective (with at least two
members). In such a finite world without innocent persons, there are,
therefore, some strictly autonomous persons and perhaps also heteronomous
persons, but no sovereign persons. For example, if one should interpret the
doctrine of ‘original sin’ to mean that no human persons are innocent in the
sense of law, then no human can be a free or sovereign person. In that case,
autonomous collectives and master-serf relations are the only conditions of
humankind that are consistent with the general principle of justice. 6. Natural
law 6.1
Natural persons So far, we have discussed law without making the
distinction between natural law and artificial law that we introduced in a
previous part of this paper. It is time to return to that distinction and to
extend our analytical apparatus by introducing another primitive concept: ‘x
naturally belongs to y’ or ‘x belongs to y by nature’. How we should
interpret that expression is not our concern here. Our interest is solely in
making the distinction between natural and artificial law, not in analysing
or proposing any particular material or substantive theory of natural law. Natural law, as noted before, is the order of
natural persons. We define the concept of a natural person as follows. Definition
II.1. A natural person belongs
to himself by nature. Thus, whereas a real person lawfully belongs to
himself, a natural person naturally belongs to himself. Whereas the opposite
of a real person is an imaginary person, the opposite of a natural person is
an artificial person, one who does not naturally belong to himself. The relation ‘x naturally belongs to y’ is
logically independent of ‘x lawfully belongs to y’. Therefore, the axioms I.1
and I.2 do not apply to it. To constrain the permissible interpretations of
‘x naturally belongs to y’, we introduce the following axioms. Axiom
II.1. Only to a natural person
can any means belong naturally. It follows from the definition and axiom II.2
that a natural person naturally belongs to himself and only to himself.
Noting the analogy between that consequence and the definition of a
[lawfully] free person, we can say that a natural person is naturally free.
Of course, nothing follows from this concerning the question whether a
natural person is lawfully free or not. Clearly, for every natural person, some means naturally belongs to
him. Also, for every pair of natural persons, there is a means that naturally
belongs to one of the pair but not to the other. It is out of the question
that one person by nature is a serf or subject of another. The definition and the axioms obviously make
sense when applied to human persons. A human person naturally belongs to
himself and himself alone. He has an immediate and indeed natural control of
many parts, powers and faculties of his body, which he shares with no other
person. To make my arm rise, I simply raise it. Other persons would have to
grab my arm and force it to move upwards or they would have to make me raise
it by making threats or promises. The same is true for other movements of the
body and for thinking and speaking. A human body, as a means of action,
belongs naturally to one person and one person only. However, the concept of a natural person, as
it is defined here, is purely formal. We are not defining what a human person is. Natural law theorists
focus on natural persons (in an ordinary sense of the word ‘natural’) as the
persons whose existence is necessary to make sense of law as an order of
persons. However, although we may believe that human persons are natural
persons, and perhaps the only natural persons, we cannot charge a purely
formal theory with these assumptions. A legal positivist, for example, might
apply the definition and the axioms to ‘states’ or to ‘legal systems’. Of
course, he would not use ‘by nature’ or ‘naturally’ but an expression such as
‘legally necessary’ or perhaps ‘by the fundamental presupposition of legal
science’. Disdaining talk about natural persons and their natural rights, he
nevertheless assumes that the whole conceptual edifice of law rests on a
collection of basic entities—states, legal systems—and their rights. In the
terminology of this section, they are his ‘natural persons’. However,
positivism clearly involves a misappropriation of the form of natural law. It
is an attempt to base the theoretical edifice of law on a personification of
certain theoretical constructs. In taking these as the primary data for
defining the concept of law, it ignores the fact that those theoretical
constructs merely are descriptions of patterns of human actions from which
any reference to the actual human agents that produce those patterns has been
eliminated. (20)
6.2 The Postulates
of natural law The concept of a natural person that we defined in
the previous section is independent of the general concept of a ‘person in
law’ that we introduced earlier. We now have to establish some connection
between the two, a logical link between, on the one hand, the concepts of a
natural person and what naturally belongs to him and, on the other hand, the
general theory of law as an order of persons and their means of action. To do
that, we need to introduce some postulates of natural law. They are intended
to capture the distinctive convictions that make up the idea of a natural
order or law of persons, as far as we can express them in our formal system. Finitism. The number of natural persons is finite. No matter what a material theory of law may say about other sorts of persons, it cannot be a theory of natural law unless it denies that there is at any time an actual infinity of natural persons. Naturalism. Every means belongs to at least one natural
person. With the help of Naturalism, we can deduce
that every person belongs to at least one natural person. Note that the
postulate of naturalism says ‘belongs [by law]’, not ‘belongs by nature’.
According to Naturalism, the responsibility for any means or person—and
therefore for any action—ultimately always rests with a natural person. It
also follows that only natural persons are free or sovereign. In conjunction with the postulate of
Finitism, Naturalism implies that not every natural person can be
heteronomous. In other words, at least one natural person must be autonomous.
Consequently, natural law as an order of natural persons must contain at
least one sovereign natural person or else at least one autonomous collective
of natural persons with at least two strictly autonomous members. Naturalism is the very heart of any natural
law theory that takes the word ‘natural’ seriously. It forces any natural law
theory that assigns sovereignty to a non-human person — if human beings are
the prime candidates for being identified as natural persons — to classify
such a person as natural. That move may not be plausible when it leads to a
conflation of what in other discussions would be considered distinct
categories, say, the natural on the one hand and the supernatural, the
artificial, the fictional, or the imaginary on the other hand. In addition to those postulates of Finitism
and Naturalism, which determine the basic structure of natural law, we have
two postulates that determine the relations between what naturally belongs to
a person and what lawfully belongs to him. Consistency. What belongs naturally to a person belongs
to him. A natural law theory holds that whenever it
is established that something belongs naturally to a person, that fact is
enough to say that the thing in question is the lawful property of that
person. From the postulate of consistency and axiom II.2, we deduce that only
real persons are natural persons and that what belongs naturally to a person
belongs lawfully to any person to whom he belongs. Individualism. What belongs naturally to a person belongs only to those persons to
whom he belongs. There can be no claim to a person’s natural property that is separate from a claim to that person himself. In short, in natural law, the natural property of a person is inseparable from the person whose natural property it is. The two are indivisibly linked. From the postulates of individualism and
consistency it follows that what belongs naturally to a person P belongs to
another person Q if and only if P belongs to Q. Obviously, Q has right to deny P the use of
what naturally belongs to P only if P belongs to Q. Also, Q has right to deny
a natural person P the use of himself only if P belongs to Q. 6.3 The
Principle of natural justice Earlier we stated a general principle of
personal justice. Here we should add what I take to be the principle of
personal justice in natural law. Principle
of natural justice.
Innocent natural persons are free. In natural law, a person who is not free is either
an artificial person
or else he is not innocent. This is a way of saying that a justification must
be given for denying freedom to a natural person—that is, for asserting that
he lawfully belongs to some other person. That justification should consist
in a proof of his guilt. Together with the general principle of justice, this
gives us: A natural person is free (or sovereign) if and only if he is
innocent. Natural personal justice and Consistency
entail that an innocent natural person is autonomous—in other words, that no
innocent natural person is heteronomous. It also follows that no innocent
natural person is strictly autonomous (i.e. a member of an autonomous
collective). Thus, there is no innocent way in which a natural person can
deprive himself of his freedom or sovereignty by making another person
responsible for him, either as his master or as his ruler. Other
consequences of the principles of natural justice are 1) that for every pair
of innocent natural persons, some means belong(s) to only one of them; 2)
that for every innocent natural
person, there is a means that belongs exclusively to him; 3) that what
belongs naturally to an innocent person belongs to him exclusively; 4) that
an innocent person owns what naturally belongs to him. As we shall see, the combination of the
concepts of innocence and justice sets the theory of natural law apart from
the commoner types of political or legal (‘positivistic’) theories of law.
The latter tend to pay little or no attention to the distinction between
innocent and non-innocent people, and to focus on questions of efficacious
and perhaps efficient government rather than questions of justice. 7. Law
and human beings 7.1 The
place of human beings in law We are now in a position to turn our attention to
the status of human beings in natural law or the order of natural persons.
Several postulates can be suggested. Anti-humanism. No human being is a natural person. Obviously, anti-humanism has no use for the principle of natural justice in its consideration of human beings. It may acknowledge that only innocent humans can be free persons, but it does not hold that in justice an innocent human being is entitled to freedom. Anti-humanism is the postulate underlying modern positivism. As we have seen, positivism reserves natural personhood to legal systems or states and personhood to artificial persons such as social positions, roles and functions within a legal system. People have a place in law only as holders of such positions or as performers of such roles and functions. Thus, human beings have no rights of their own. Natural law theories, on the other hand, are committed firmly to the view that the natural persons par excellence are human beings. Weaker versions of anti-humanism imply that only some humans are not
natural persons while others are. An anti-humanism of this sort could ride in
on the back of the postulate of humanist naturalism. Humanist
naturalism. Every natural person is a
human being. This postulate asserts that only humans are natural
persons. Consequently, it is unacceptable to those who believe the natural
law comprises non-human yet natural persons (animals, gods, demons,
personified historical or sociological phenomena like tribes, nations,
states, or whatever). On the other hand, the postulate leaves open the weak
anti-humanist possibility that some human beings are not natural persons.
Arguably, some human beings cannot be classified as natural persons because
of genetic or other defects that cause them to lack the capacity to act as
persons. However, humanists certainly would refuse to leave open the
possibility that some human beings that have that capacity should not be
regarded as natural persons. In conjunction with the postulate of
naturalism and the general principle of justice, the postulate of humanist
naturalism implies that all free persons are innocent human beings. Radically opposed to anti-humanism is the postulate of naturalist
humanism: Naturalist
humanism. Every human being is a
natural person. Clearly, naturalist humanism in conjunction
with the principle of natural justice implies that all innocent human beings
are free persons. However, it maintains that there may be natural persons
other than human beings. Of course, as noted before, one can make a
good case for the thesis that very young children or humans with severe
mental deficiencies should not be considered as persons because they do not
have the requisite capacities to act as purposive agents. Moreover, they have
no capacity for understanding what it is to have or to lack a right. However,
if we read the postulate as a presumption—all human beings must be presumed
to be natural persons when there is no proof to the contrary—then we can take
much of the sting out of that objection. Another but rather vague way to do
that, is to construe the words ‘human being’ as short for ‘normal human
being’. The conjunction of the two humanist
postulates mentioned above gives us a general postulate of humanism. Humanism. All human beings are natural persons; nothing else
is a natural person. In conjunction with the postulates of natural law and the principles of general and natural justice, Humanism implies that all and only innocent human beings are free. Leaving aside merely fanciful and nominally
possible interpretations of the concept of a natural person, we have to make
do with the postulate of humanism. Assuming further that human beings enter
the natural order as innocent persons, the postulate also implies that the ‘original
status in natural law’ of every human person is that of a sovereign person. If we are very liberal in our ontology of the
natural world, the postulate of naturalist humanism might enter as a possible
candidate. However, it would bring in its wake controversies about what
non-human natural persons there could be, which we could not decide by any
rational method. In any case, natural justice obtains only if innocent human
beings are left to be free or to belong to themselves and only to themselves. As noted above, the postulate of humanism
implies that all and only innocent human beings are free. In other words, it
implies that ‘sovereignty’ is the status in natural law of an innocent human
being. Thus, all the propositions that we have derived about the rights of
sovereign persons apply without restriction to innocent human beings. An
innocent human being has right to the use of what he owns—in particular, his
own body—without the consent of any other human or non-human person.
Moreover, no natural or artificial person has right to the use of what
belongs to an innocent human person without his consent. Those propositions state the natural rights
of a human person, at least in so far as he is innocent. They are the logical
basis of the theory of anarchocapitalism, which is, therefore, a theory of
natural law and justice. Its distinctive characteristic, which sets it apart
from other theories of law as an order of persons, is its application of the
concepts of a natural person, an innocent person, and the principle of
natural justice, to human beings. 7.2 Law
without justice The proof of the sovereignty of innocent human
beings crucially involves the principles of justice and the concept of
innocence. If we leave aside references to the principles of justice then we
no longer can prove the thesis of individual sovereignty for innocent human
beings. However, that does not mean that we cannot derive any conclusion
about the status in natural law of humans. Indeed, the postulate of
consistency implies that natural persons (which, according to Humanism, are
human beings) are persons in the sense of law. Thus, any theory of law that
denies that human beings are persons violates that postulate of natural law.
Moreover, the combined postulates of Finitism and Naturalism imply that at
least some natural persons (human beings) must be autonomous. Therefore, if
we postulate Humanism, no theory of natural law can hold that all humans are
heteronomous persons. At least some of them must be autonomous. Consequently, if we reintroduce the concept
of innocence but leave out the principles of justice, we have a choice of
natural law theories that deny that freedom or sovereignty is the natural
right of all innocent human beings. Among those theories, some are consistent
with the notion of ‘equal rights’ for all innocent human beings. Their common
characteristic is that they assign to every innocent human being the status
of a strictly autonomous person or membership in an autonomous collective. Other theories of natural law without justice
are not compatible with the notion of ‘equal rights’. For example, a theory
of this sort may hold that while some innocent human beings are sovereign,
others are strictly autonomous. Another possibility is that some innocent
human persons are regarded as sovereign, while the others are regarded as
heteronomous. Obviously, other distributions of the attributes of
sovereignty, strict autonomy and heteronomy among human beings are also possible.
Philosophically speaking, an ‘equal status’
type of theory is considerably less demanding than an ‘unequal status’ type.
Because it starts with the premise that, in respect of the law, human beings
are fundamentally alike, it needs no justifying argument for discriminating
among innocent human beings. An argument for assigning to such persons one
status rather than another is all it needs to provide. Note, however, that a
theory of a type that assigns to all or some innocent human persons the
original status of a member of an autonomous collective need not assign all
of them to the same collective. Similarly, theories that assign to all or
some innocent human persons the status of a heteronomous person need not
assign them all to the same masters or rulers. All of those theories require
not only an argument for justifying their pick of the original status in law
of any human being, but also an argument justifying a particular distribution
of human persons among an untold number of autonomous collectives or rulers. Only theories that assert that every human
person originally (in his state of innocence) is a sovereign person avoid
those complications of discrimination and distribution. Formally speaking,
there is only one such theory. As we have seen, it is the humanistic theory
of natural law to the extent that it makes a person’s status in law depend on
his innocence according to the principles of justice. It is the only type of
theory that combines freedom and equality as defining the natural rights of innocent
human beings. In short, it holds that, for human persons, ‘freedom among
likes’ is the only lawful condition. If we accept the postulate of humanism and
the principles of justice, then the concept of natural human law is formally
unambiguous. However, it does not leave any room for an original right of
legislation, only for contractual obligation. In that sense, it has decidedly
anarchistic implications, as indeed we should expect from any theory that
takes freedom and likeness (‘equality’) for human beings seriously. Not
surprisingly, at all times, major political and social thinkers have
attempted to deny that conception of natural human law. They endeavoured to
replace it with a conception of a social law in which all or some human
beings merely function as artificial persons, defined by imposed rules. They
did so by attacking either the thesis that innocent natural human persons are
free or the thesis that they all are equal in law. For each of those strategies, we can
distinguish between attempts to prove that for human beings the
characteristic of freedom or equality is in fact false and attempts to prove
that, although it is true, it nevertheless is undesirable. Plato’s theory of
the ‘noble (or necessary) lie’ grants that all humans are ‘equally children
of the Earth’ but then argues that they must be convinced that their souls
are made of different stuff (gold, silver, bronze) to make them accept the
inequality imposed by the structure of the polis. Rousseau claimed that though ‘men are born free,
everywhere they are in chains’, and proceeded to legitimate their loss of
natural freedom (and its transmutation into the ‘civic liberty’ of a
particular state). Aristotle flatly denied that likeness (‘equality’) was a
natural relation. His theory of ‘slaves by nature’ was the egregious
expression of that denial, which made social order ‘natural’ by citing nature
as the formal cause of rule and servitude. Marx denied that freedom was even
possible for a ‘particular individual’. It would be attainable only in the
advanced stages of communism, and then only for the ‘universal individual’. The denial of equality, which implied that
natural freedom could be at most the privilege (that is, the ‘liberty’) of a
social or political elite, dominated in attacks on natural law until the
eighteenth century. At that time, the attack began to aim at the concept of
freedom, making ‘equality’ quasi-sacrosanct. However, that ‘equality’ no
longer was the natural likeness of human beings (as members of the same
species), but an equality of social position. To become ‘socially equal’,
human beings had to renounce their freedom. The denial of equality implied that at least
some innocent individuals lacked the natural right of freedom or had the
status of a heteronomous person. It implied a distinction between rulers and
masters, on the one hand, and others who, although they are innocent, are
subjects and serfs. This made it possible to introduce the notion of lawful
political rule or legislation ‘of one man over another’. The denial of freedom by theories that
nevertheless assign an original status of strict autonomy to all or some
human persons allows the introduction of the notion of lawful political rule
or legislation of a ‘republican’ kind. Indeed, as we have seen, within an
autonomous collective every member has right to the use of every other member
as well as of all means that do not belong to any one outside the collective.
In other words, every member has right to impose his will or rule on the
other members while being himself subject to the rule of every other member.
In its crude form, such a collective is what Hobbes called ‘the natural
condition of mankind’ and Marx ‘raw communism’. (21) In its civic form,
it is the republic of Rousseau, in which human beings have no status except
as means of action, or serfs and subjects, of the artificial person that is
the Citizen. The common element of those freedom- or
equality-denying theories, therefore, is the idea of one or more natural
persons ruling innocent others — and that idea, disguised as the power of
legislation, is very much the centrepiece of most political or legal theories
of law. Clearly, all attempts to justify legislation (as distinct from
contractual obligation) must reject the principle of natural justice, which
is that innocent natural persons are free. As we noted before, among lawyers of a
positivistic persuasion, the common denial of natural law and justice takes
the form of a denial of the postulate that human beings are natural persons.
In this, they make use of Rousseau’s strategy of substituting particular
aspect-persons as the primary subjects of law. We have seen that Rousseau
considered natural persons under a certain aspect, as citizens, and assumed
that they accordingly have rights only as citizens. Thus, in the legal order
of the state, neither Jean nor Jacques has any rights; only citizen(Jean) and
citizen(Jacques) have rights. Obviously, the aspects under which we can
consider natural persons are innumerable. They do not form a closed set. Any
aspect of a person P might be personified. A theory of law that took
aspect-persons as its starting point would have an arbitrary basis in its
selection of relevant aspect-persons a(P), b(P), c(P), and so on ad
infinitum. It would allow us to say that P is one person but also that, from
the point of view of law, P-as-a-woman is a different person with a different
set of rights. Similar constructions are possible, as the case may be, for
P’s rights as a consumer, a member of some ‘minority’ or other, a worker, a
child, a childless person, a pensioner, a veteran, an obese person, a Muslim,
and so on. The multiplication of persons would apply to every natural person.
It is then all too tempting to dismiss P himself altogether and simply add
P-as-a-human-being, say h(P), to the list of aspect-persons. As soon as we admit aspect-persons as persons
in their own right and not simply as heteronomous serfs of a natural person,
we can assign a different status in law to each aspect. Consequently, a
natural person P, considered under one aspect, a(P), might be sovereign and
at the same time, considered under another aspect, b(P), heteronomous or a
member of this or that autonomous collective — yet P himself need not have a
status in law. Arguably, that is very nearly the ruling conception of persons
and rights in fashionable opinion today. However, it is indicative of a
complete dissociation of the concepts of ‘person’ and ‘rights’ from any
reality. With the suggestion that a natural person is simply a ‘theoretical
construct’, the result of assembling apparently pre-existing different
aspect-persons, it is also a denial of the proposition that a natural person is an individual person. It is in fact
a complete dissolution of the idea of a natural law. 8.
Conclusions Anarchocapitalism rests on the notion of natural law
as an order of natural persons rather than a binding set of rules or
commands. As a normative theory, it holds not only that we have good reasons
to respect the natural order but also that we have no right not to respect
it. (22) However, whether or why natural law ought
to be respected—that is to say, whether we ought to respect one another for
the free persons we are—was not the issue here. My purpose was not to try to
justify any particular position in ethics or politics. It was only to
explicate and to de-mystify the concept of the natural law that
anarchocapitalism presupposes. Any one who can grasp the notions of a human
person and what belongs to him, and of innocence, and the distinction between
artificial and natural persons, should be able to comprehend what natural law
and natural rights are. Nevertheless, I hope that the analysis will help the
reader to get a clearer view of some of the problems of justification in
ethical or political discourses about law. At the very least, it should
clarify the logic of the anarchocapitalist claim that individual human beings
are sovereign persons in natural law. Notes (1)
M.N. Rothbard, Man, Economy and
State (Los Angeles: Nash Publishing, 1970); Idem, The Ethics of Liberty (Atlantic Highlands, N.J.: Humanities
Press, 1982); Idem, For a New Liberty
(New York: MacMillan, 1973, revised edition 1978). David Friedman’s The Machinery of Freedom (LaSalle,
Illinois: Open Court, revised edition
1989) is an attempt to develop an anarchocapitalist theory on the basis of
the ‘utilitarian’ analysis of current mainstream economic analysis. (2) In
the language of anarchocapitalism, ‘economic’ and ‘political’ primarily
identify different methods or ways of doing things. Popular references are
Franz Oppenheimer, The State (1914)
and Frédéric Bastiat, The Law
(1848). While economic actions are lawful (with respect to natural law),
political actions are not because they involve aggressive coercion, invasion,
unilateral takings or other forms of disrespect for the sovereignty of other
natural persons. (3)
Hans Hoppe has deepened that theme considerably in his Democracy: The God that Failed (New Brunswick,
N.J.: Transaction Publishers, 2001); see also H.-H. Hoppe, ‘The Private
Production of Security “, Journal of
Libertarian Studies, 1999, XIV, 1, pp.27–52. (4)
Frédéric Bastiat, “What is Seen and What is Not Seen” can be found in
many collections, for example in Idem, Selected
Essays on Political Economy (Princeton N.J.: Van Nostrand, 1964). (5) See F. van Dun, ‘The
Lawful and the Legal’, Journal des
economistes et des études humaines VI, 4, 1996, pp. 555 – 579. (6)
See F. van Dun, “Natural Law, Liberalism, and Christianity”, Journal of Libertarian Studies, 2001,
XV, 3, pp. 1-37. In fact, most popular moral theories recognise that people
ought to respect the natural order of the human world as it is known by
common sense and experience, even if their conceptions of it vary enormously
in scientific sophistication or analytical precision. Most of them simply
assume that one has to be moral and make the best of things within the order of the world as it
is. Notable exceptions can be found in Western academic moral theories which
in many cases are based on the gnostic notion that historical experience and
received wisdom merely reflect the alleged ‘false consciousness’ of
historical man. Consequently, only ‘enlightened reason’ can grasp the (as far
as history is concerned, utopian) condition of ‘true humanity’ and deduce the
‘rights of man’ from it as well as specify the code of conduct most likely to
achieve it. Unfortunately, with their references to the ‘true nature of man’,
a lot of those theories (for example those of Mably, Morelly and some
‘utopian socialists’) used to masquerade as natural law theories. Although
those exercises in rationalist constructivism were incompatible with the
classical-medieval tradition of natural law theory, which took the real man
to be the historical man, many critics assumed that their criticism of the
utopian schemes brought down the classical-medieval tradition as well. (7)
M.N. Rothbard, Egalitarianism as
a Revolt Against Nature, and Other Essays (Washington, D.C.: Libertarian
Review Press, 1974). (8)
The natural law theory of the Christian medieval theologians obviously
referred to the world as God’s creation and to the biblical covenants to
derive the conclusion that people had to respect the natural order. Rothbard
(Ethics of Liberty, op.cit.) assumed that
Thomistic thinking on the lex naturalis
was a sufficient basis for his radical libertarianism. Others, among them
H.-H. Hoppe and this writer, have found the ground for the obligation to
respect the natural order of persons in the practical presuppositions of
‘argumentation’ or ‘dialogue’. See N. Stephan Kinsella, “New Rationalist
Directions in Libertarian Rights Theory”, Journal
of Libertarian Studies, 1996, XII,2, pp. 313-326. (9) Summa Theologica, IaIIae, question 91, art.2 (concl). Also
John Locke, Second Treatise of Civil Government,
Chapter II, par. 6. For a modern interpretation of the view that natural law
is ‘practical reason’, see J. Finnis, Natural
Law and Natural Rights (Oxford: Oxford University Press, 1980). I am not
saying that the ambiguity vitiates the Thomistic theory, only that its
typical medieval complexity apparently lies beyond the grasp of many modern
interpreters and commentators for whom ‘law’ invariably connotes ‘enforcement
by public (political) authorities’. Hence the common complaint that the
agenda of natural law theory is to legislate morality. However, Thomas
clearly distinguished between mere sins (that merit disapproval and
repentance) and injustices (that merit ‘action in justice’ and redress). He
also distinguished between vices of the sort no virtuous man would engage in
and vices that threaten the existence of ‘society’ (not this or that
particular society but ‘human society’ as a general form of conviviality or symbiosis):
murder, arson, theft, fraud, robbery, assault and other crimes against
persons and property. (Summa Theologica,
IaIIae, question 96, art.2 (concl). Only with respect to injustice and
especially crime can the coercive power of ‘human law’ intervene. In short,
while all virtues are necessarily lawful (sanctioned by the rational
appreciation of their agreement with divine providence), and all vices are
consequently unlawful, only a few vices of a particular sort should be made
illegal. ‘Legislating morality’ was not on Thomas’ agenda. (10)
‘Right’ derives from the Latin verb ‘regere’ (to control physically,
to rule, to govern). (11)
Rights, properly understood, are not the now ubiquitous ‘rights to’,
which are merely lawful claims. To say that my life or my property is my
right is not the same as saying that I have a right to life or property. On
this distinction, see F. van Dun, “Human Dignity: Reason or Desire?”, Journal of Libertarian Studies, 2001,
XV, 4, pp. 1-29. (12)
The story, propagated by the Roman historians Suetonius and Dio
Cassius, probably is based only on rumours. However, it wonderfully
illustrates the point I am trying to make. (13)
The analogy with the game of chess is close. After all, Black and
White also are personified utility functions constrained by rules. However,
chess players do not assume that they are only a few adjustments of the rules
away from having a ‘true model’ of what happens in a real battle. (14)
For a more technical and fuller exposition, see F. van Dun, “The Logic
of Law” (in the Samples section of the website
http://allserv.UGent.be/~frvandun). Some paragraphs of this section are taken
almost verbatim from that paper. (15)
‘X belongs to Y’ literally means that Y has an interest vested in X—an
investment. In Dutch and German translations, it means that X listens to (or
obeys) Y. In its French translation, it means that X is linked to Y (as part
to whole, or as periphery to centre). (16)
Thomas Hobbes, Leviathan; Book I, Chapter 13, “Of the Natural
Condition of Mankind, as Concerning Their Felicity, and Misery”. Note the
contrast with Locke’s ‘state of nature’, which is an order of sovereign
persons for whom the distinction between justice and injustice is crucial. We
shall examine the formal contrasts between the ‘rights’ of strictly
autonomous and sovereign persons in the next section. The implications for
human beings (natural persons) are spelled out thereafter. (17)
“In order then that the social compact may not be an empty formula, it
tacitly includes the undertaking, which alone can give force to the rest,
that whoever refuses to obey the general will shall be compelled to do so by
the whole body. This means nothing less than that he will be forced to be
free….” J.-J. Rousseau, The Social
Contract (Everyman’s Library, E.P. Dutton & Co.; translated by G.D.H.
Cole), Book I, chapter 7. (18)
Obviously, we can define slightly different notions of right in terms
of our fundamental relation ‘x belongs to y’. However, it is not our aim to
give a list of all possible concepts that we can define. (19)
See “The Logic of Law” (referred to in note 14). (20)
This is obvious in the norm-based and rule-based expositions of
positivism in the writings of Hans Kelsen (The Pure Theory of Law) and H.L.A. Hart (The Concept of Law). (21)
See the essay ”Private Property and Communism”, in K. Marx, Economic and Philosophical Manuscripts of
1844 (Moscow: Foreign Languages Publishing House, 1956; translated by
Martin Milligan). The text can also be found in Marx-Engels, Collected Works, Volume 3 (Moscow: Progress
Publishers), 293-305. (22)
For a proof of that statement, see F. van Dun, Het
Fundamenteel rechtsbeginsel (Antwerp:
Kluwer-Rechtswetenschappen, 1983), especially chapter 3. |
