Geoff: "Yes, an individual, apart from society, has the right to punish a criminal, on the basis of the natural law."
Andy: "By this I take it you mean, for example, that a hermit has the right to track down and kill a murderer in the desert."
Not just a hermit in the desert, but an individual who lives in a city, as well. Apart from society meaning, "Not necessarily without the approval of society." Because we all know sometimes society doesn't approve of what is just.
Andy: "However, I am not clear whether you think that this is a freedom (he can do it but he doesn't have to) or a duty (he is obligated to)"
It is a freedom in some cases, and in others, it would seem to be an obligation. You are not obliged to re-acquire your stolen property. You do have a right to it, if you so choose. A violent criminal must be taken out of society, lest he hurt others. Your obligation to punish someone, in these circumstances, is based on the a prudential judgment regarding how much of a risk the criminal is.
Andy: "Furthermore, is there any difference if the muderer committed the crime far, far away verses in the general vicinity of the hermit, versus in the hermits cave; is there any difference if the murdered one is a total stranger versus someone the hermit knows about versus someone the hermit interacts with versus a close friend of the hermit versus a family member of the hermit's; if the attempt to commit the crime equals the crime; and if there is anyway for the criminal to regain his right to life? Does the same hold true for other crimes and how so?"
Morally, an attempt to commit a crime is the same as having committed it. Physically, (which is the only thing a civil law must concern itself with) it is not the same. God will deal with the moral aspect. An individual or collective will deal with the physical threat. If someone poses an actual threat, then he should be incarcerated. Period. Nearly every time they let a violent felon out after 5 or however many years, they go out and rob, rape and kill again. They're obviously still a threat, and therefore should still be in prison. Prison isn't directed primarily to "rehabilitation." Its primary intent is to physically keep dangerous people from committing more violence. If someone rehabilitates after a time, great. But such an instance comes from the grace of God, not merely the prison bars that keep them from hurting other people.
Andy: "I would say (and the law does) that the claim to authority and property rests with the abused unless they act (or fail to act) in such a way as to imply that they do not have the right, so long as that right is naturally transmutable (as property and governments, but not life for instance, are). Thus even if the government seized land for highways or the American War for Independence was illegitimate, the fact that the ones depossed of land have acknowledged the government's claim, and the fact that Britain signed a treaty yielidng the colonies, makes it so."
Yes. Machiavelli said something like this, too. "Might makes right." It sounds like you're saying that a kid bullied at school forfeits his right to his lunch money, so long as he is incapable of resisting or speaking out, for fear of getting the tar beaten out of him.
Just because harm has been done does not mean it is moral to continually inflict new harms.
Geoff: "Parents punish because they have a :natural authority: over their children, AND because they are concerned with the interests of others."
Andy: "You are setting "natural authority" and "interests of others" up as distinct. I thought we said above that authority was the right and duties derived from being charged with the interests of others. If so, parents have a natural authority precisely because they have naturally have the obligation to care for the interests of their children. Thus natural authority (whence they derive their right to punish) is not discinct from their parental concern for the interests of their children. However, parental authority need not be and is not the only type of authority, nor the only type of authority that can punish.
What do you mean by natural authority as distinct from authority?"
Parents have a just claim, based on natural law, to discipline their own children in any reasonable manner they see fit. No one besides the parents, however, has the right to give a moral education to the parents' children. Because the parents, not society or unaffiliated individuals, are liable for the behavior of their children.
In civil society, no one has a claim to order another to eat his vegetables. A parent has this right, because the parent is naturally responsible for the moral and physical well-being of his child, who is not yet a grown, responsible adult. No adult has any natural-law-based authority over another adult, except for punishment of a violation of the life, liberty and property of others. God has authority over all. He created natural law. Man can only request that another man perform a morally good act, but demand that he respect the life, liberty and property of others. The right to demand such a thing flows from natural law.
Natural law says that parents have a right to reasonably rule over their children. Natural law does not say one adult has any "right" to rule another adult without his personal, express consent. This personal, express consent is not present in a democratic society where the majority will is imposed on all, even against the will of the minority.
But following the natural law concerning the life, liberty and property of others is a demand of nature, not merely of civil government. Civil government merely exists to punish infringements of these natural law rights of men. That is all. If any positive effects, such as a reduction of crime, flow from this punishment, extra bonus points. But that is not the reason government exists. A legitimate (read: non-taxation based) government may only punish those who have violated contracts or are an active threat to other people.
Subscribe to:
Post Comments (Atom)
14 comments:
You continue to assert that the right to life, liberty, and property are somehow unique and primary, at least in so far as society is concerned. Now I think I know what you mean by life and property, but what to you mean by liberty? And why are liberty and property so primary. Now you have said on many ocasions that these are man's natural rights, but I don't see how you can be certain that these are all of man's natural rights, and that these are the only ones society has a right to defend. What if I assert a right to play, a right to gainful work, a right to (at least) bare subsistance to (up to) the ability to pursue man's natural practical ends, etc. What makes liberty and property so special?
(Now be clear I am not asserting al these rights, but I am suggesting an objection)
Andy
Life, liberty and property are unique and primary. They are the things we have a right to at birth.
You have the liberty to do all these things. Play, work, pursue any end you want, so long as it does not deprive another man of his equal life, liberty and property.
Nobody is born with a right to have anyone besides his parents supply his subsistence. He has the right to pursue a subsistence. You may have a moral obligation to support an orphan, but not a civil obligation. Not everyone has to support a particular orphan. Someone will always come forth and do so out of charity. But you cannot force charity.
Life, liberty, and property are not conventional rights, they are intrinsic to our being. They cannot be alienated by anyone.
Inalienable rights are something that are not understood well in this country, or in any other. Rights do not have any restrictions in civil society. I have an absolute right to free speech. As a notorious Supreme Court Justice once said, "Rights are not absolute. You can have reasonable restrictions. For example, you cannot yell 'Fire' in a crowded theater." You certainly can yell "Fire" in a crowded theater, if there is a fire and it will save lives to do so! But yelling it when there is no cause to unnecessarily endangers the lives of others. No one has a right to do that in the first place. Prohibiting such an action is not a "restriction" on your right to free speech. It is not an example of free speech to begin with. No one is free to unnecessarily endanger the lives of others, whether by word or deed.
You have not answered one of my important questions yet:
"Is anyway for the criminal to regain his right to life?"
Andy: "I would say (and the law does) that the claim to authority and property rests with the abused unless they act (or fail to act) in such a way as to imply that they do not have the right, so long as that right is naturally transmutable (as property and governments, but not life for instance, are)."
Geoff: "It sounds like you're saying that a kid bullied at school forfeits his right to his lunch money, so long as he is incapable of resisting or speaking out, for fear of getting the tar beaten out of him."
How has his incapasity for resistance "impl[ied] that [he]
do[es] not have the right" to the money?
Geoff: "Machiavelli said something like this, too. "Might makes right."
It is my understanding that what Machiavelli meant was that morality does not apply to politics, and so anything you are capable of doing in the political realm is morally just.
What I am saying is that rights are real and are based on facts, and each person has an obligation to reasonably defend his rights when they are under assault (bound, of course, by morality) if he wishes to retain those rights.
He may not ignore a reasonable opportunity to assert his claim if it is under assault, and then try to assert the claim later if good cause for the delay cannot be demonstrated. Nor can do an act contrary to his claim that his right was violated and then try to pursue his claim.
In this case, his failure to act seems to demonstrate a prudential judgment not to reclaim stolen property because his safety is in jeopardy. In other words, there is good cause for his delay.
Should he neglect to do what is reasonable to reclaim his money (like telling an authority if such action is prudent), or if he acts contrary to his claim, (such as by stealing someone else's money or telling the authorities that the money was a gift to the bully), he in effect renounces what claim he had to the money. This does not mean that the bully did not violate the boy's rights or is not bound in charity to return the money to the boy, it means that he now has a de facto claim to that money.
Andy
Geoff, either you disagree with my earlier definition of rights, or you are getting awful lose with your use of it.
Earlier I defined rights: "Properly speaking (at least in so far as I can determine and can find to express it) a right is the power to command the obedience of others in regards to a specific obligation of justice."
Do you agree, or not? If not, then what is a right?
If you hold that we have the intrinsic and inalienable right to liberty, the right to "pursue any end you want, so long as it does not deprive another man of his equal life, liberty and property", then you can not mean the same thing I mean by "right".
"I have an absolute right to free speech," you say, but qualifying it through your example to mean apparently "I have an absolute right to free speech so long as I do not use it to violate the life liberty or property of others." Do I have a right to call you a theif? To tell you a lie? To say that I did such and such when I did not do it? How am I violating your right to life, liberty or property?
Andy: You have not answered one of my important questions yet:
"Is anyway for the criminal to regain his right to life?"
He's either forfeited his life or he has not. He is not able to "regain his right to life" unless he's able to resurrect the man he killed.
Andy: "I would say (and the law does) that the claim to authority and property rests with the abused unless they act (or fail to act) in such a way as to imply that they do not have the right, so long as that right is naturally transmutable (as property and governments, but not life for instance, are)."
Geoff: "It sounds like you're saying that a kid bullied at school forfeits his right to his lunch money, so long as he is incapable of resisting or speaking out, for fear of getting the tar beaten out of him."
Andy: How has his incapasity for resistance "impl[ied] that [he]
do[es] not have the right" to the money?
His incapacity and/or unwillingness to resist might easily be construed as a "failure to act" to show that he still considers it his property. I think that insofar as it belonged to the person from whom it was stolen, the original owner still has a right to it, whether he implies it or not. "Not resisting" does not equal "wilful consent."
Much like the government and the roads it built with confiscated money. Just because everyone uses it and the government writes regulations concerning its use because it claims it owns the roads does not mean it has a legitimate claim. The harm has been done. You cannot return the price of the labor and asphalt to the individuals from whom the money was stolen to construct the road. That doesn't mean it wasn't built with stolen money and that an injustice has not been done.
Geoff: "Machiavelli said something like this, too. "Might makes right."
It is my understanding that what Machiavelli meant was that morality does not apply to politics, and so anything you are capable of doing in the political realm is morally just.
I don't think that's what Machiavelli was saying. Machiavelli knew morality applied to every aspect of human life. He was merely writing his work on the purely practical aspect of politics, divorced from morality. "Practical politics" is sometimes a euphemism for a grave where people inter their deceased integrity and values. Republicans and Democrats alike, who gave up a long time ago on doing what is right, and instead, doing whatever makes them popular. "Because we can and it increases our power" is the political translation of "We're doing this for your own good."
Andy: "What I am saying is that rights are real and are based on facts, and each person has an obligation to reasonably defend his rights when they are under assault (bound, of course, by morality) if he wishes to retain those rights."
Rights are real, and based on facts (the fact of our humanity and the ends of humanity) and people have an obligation to defend them if they wish to retain the :free exercise: of those rights. If they repealed the Second Amendment tomorrow, you would still have the right to keep and bear arms. Because the government doesn't "allow" you or "give" you that right. God gave us life. Insofar as we have a claim to life, we have the right to preserve it with the best means in existence.
He may not ignore a reasonable opportunity to assert his claim if it is under assault, and then try to assert the claim later if good cause for the delay cannot be demonstrated. Nor can do an act contrary to his claim that his right was violated and then try to pursue his claim.
Andy: "In this case, his failure to act seems to demonstrate a prudential judgment not to reclaim stolen property because his safety is in jeopardy. In other words, there is good cause for his delay."
Andy: "Should he neglect to do what is reasonable to reclaim his money (like telling an authority if such action is prudent), or if he acts contrary to his claim, (such as by stealing someone else's money or telling the authorities that the money was a gift to the bully), he in effect renounces what claim he had to the money. This does not mean that the bully did not violate the boy's rights or is not bound in charity to return the money to the boy, it means that he now has a de facto claim to that money."
He has not freely renounced his claim. He has to decide, "I will let him keep the money, period." The bully is bound in justice, not charity, to return that which is not his. Justice requires a restoration of property to its rightful owner, if at all possible.
Like I said, the right to his own property is not contingent on what he did to try to get it back. Stealing another person's money would not make him lose his claim to his own money. Nor would he tell the authorities it was a gift to the bully unless he was A)Afraid or B)Fully and freely renounced his claim on the money and didn't want it back.
Andy: "If you hold that we have the intrinsic and inalienable right to liberty, the right to "pursue any end you want, so long as it does not deprive another man of his equal life, liberty and property", then you can not mean the same thing I mean by "right."
I think we're in the process of discovering the particular place in which we disagree. Excellent.
A working distinction, subject to improvement: Freedom, explicitly speaking, is the unhampered ability to pursue that which one ought to pursue.
Liberty, it would seem, is different than freedom. I like the first definition in the dictionary: "freedom from arbitrary or despotic government or control." Granted, one couldn't consider a a law saying no one can smoke as "arbitrary." It's based on reason, certainly. It will make people healthier, and that is good. But does it come under the purview of what an individual or a civil government should concern itself with? Forcing someone to abstain from that which is not violation of another man's rights? I would consider smoking a "civil liberty." Certainly not something which someone ought to do, but neither is it something the government should legitimately prohibit, I think we both agree. But why not? If we find the answer to this "Why not," we may be getting somewhere.
Andy: "I have an absolute right to free speech," you say, but qualifying it through your example to mean apparently "I have an absolute right to free speech so long as I do not use it to violate the life liberty or property of others."
No one is free to violate the life, liberty, or property of others, through speech or word. Lying and hurting another person is not free speech. No law exists that says an adult who lies about how old he is must do 6 months in jail and/or pay a $2,000 fine. But man, do we have laws if you lie about whether you have asbestos insulation when you're selling your house! Why is that? Because you would be defrauding someone of their property. They would be buying a house and not taking into the price the cost of having the asbestos removed.
Andy: "Do I have a right to call you a theif? To tell you a lie? To say that I did such and such when I did not do it? How am I violating your right to life, liberty or property?"
If, by calling me a thief, you damage my reputation and thereby my ability to conduct business with other people, you have defrauded me of my earnings.
If you tell me a lie about the functionality of a car you're selling me, likewise, you have defrauded me of my property. I would not have paid you as much if you had told me the truth. If you lie about the fact that you have blond hair, and there's no material consequence of that, I wouldn't care. Nor would any other sane person.
If you lied about having completed a job I was paying you to do, yes, there would be a problem. If you lied about having been the 1992 Ironman Competition winner, and it had no affect on my property or liberty, I wouldn't care. Nor would any other sane person.
Do you have a moral right to lie? No. Does your lying always have an adverse affect on the property of other people? No. Can it? Yes. If it does, it can be punished. I think we can both agree it would be ridiculous for a policeman to arrest someone for saying they had black hair when they really had blond hair?
What is a right? What is a moral right? What is a civil right?
Here comes the part where we'll have to proceed very slowly and carefully and do some refining.
I think one type of right is like your "government refrains" right: the the ability to choose any temporal action. The ability, without prior restraint, to exercise free will. This was a power granted by God when he gave us our free will, knowing we might abuse our power to choose good or evil. But he lets us sin against him. Free will gives us the power to sin against God, but this power does not justify sinning against him. But that brand of justice or injustice is between men and God. Some sins are direct attacks on God, not men.
Insofar as God gives us the power to choose between good and evil, we have the right to do so. That does not mean our decisions are always moral, or that there aren't consequences, but the consequences are different when dealing with the crime's victim. Either men or God.
No one has a moral claim to sin. But then, no other human being has a moral claim to try to physically prevent someone from sinning. It's impossible to prevent all types of sin. But you can easily prevent the physical manifestation of a sin that will physically/psychologically cause manifest harm to another person. If one doesn't stop here with legislation, one can have laws that prohibit smoking, laws that mandate everyone join the Catholic Church, (being as it is the one true Church, even if one doesn't personally believe it.)
In other words, many people want laws intended to make people morally good. To somehow force them to choose the good. I propose laws intended to allow men to peacefully pursue moral (or immoral) goods. The key is "peacefully." A law against theft doesn't intend to make someone choose the good. It merely prescribes consequences for violating another human person's free will. A law against smoking or joining the Church would prescribe temporal consequences for violating God's will. God can take care of himself. We should see to justice among men.
See, it doesn't matter if someone believes that stealing isn't wrong. It hurts another person against his will, and hence, action can be taken during or after the fact. If every collective of people (as the Founding Fathers thought) have a moral claim to self-determination, (remember, even though God owns us, God allows individuals and collectives to make their own choices, including having a king, no matter how stupid they are) then every individual has a claim to self-determination: which stops only when they start determining things for other people. In other words, I could not "self-determine" to cut off someone else's hand. Or "self-determine" that someone needs to pay me a third of his income, because I'm making him take services he doesn't want.
Some working definitions, subject to revision. Let me know what you think.
A right: the ability to choose a good or evil action, based on one's God-given free will.
A moral right: the freedom to choose a moral good.
A civil right (also inalienable): the temporal absence of coercion from others in the exercise of one's ability to act in a self-determining manner. A civil right does not include acting in a manner that determines other men's actions without their express consent. (Freely-made contracts, for example.)
While smoking would not necessarily be a moral right, it would certainly be considered a civil right. That means the only person who could justly prevent you from doing so, by force or threat thereof, would be God, who has a claim to you as property.
Are duties/obligations (moral or otherwise), justice, and rights at all related, and if so, how?
Andy: "Earlier I defined rights: "Properly speaking (at least in so far as I can determine and can find to express it) a right is the power to command the obedience of others in regards to a specific obligation of justice."
I think this is accurate, but it depends on what kind of justice we're talking about. Justice to God, or justice between men? Because I may be bound by my association with God to not smoke, but I am not bound by my association with another man to not smoke. My relationship to God is not the same as my relationship to my fellow man. Each party has a claim to different things. God has a claim to my soul. Other men have a claim to their own life, liberty and property.
I am defining a right as a power to command, you as an ability to chose. These are irreconsilable.
Well, let's work with your definition here. I'm all in favor of defining it as the power to command, depending on the type of justice it involves.
There is one ultimate justice, but there are two jurisdictions: justice between men and God, and justice between man and man. I believe that the rights of men in civil society can only encompass upholding the tenets of civil justice, not the tenets divine justice.
What are the tenents of civl justice, and what are the tenents of divine justice.
As far as I see, an (true) obligaton is a moral obligation whether it is imposed by God through human nature directly, or by more proximately by another man. Its root is necessarily the obligation to "do good and avoid evil" "for neighbor as for self", where this is understood in light of man's pursuits of the practical ends.
(What I was going to add earlier to the first post concerning these practical enis this: That because each of these ends discussed in the first post are in part means to the happiness that man seeks, (where a proper fulfillment of all are required) he can not act contrary to one in the pursuit of another in the most strict sense possible (that is, direct intension). (This is just the general rule through which you can derive the moral commandments).
Post a Comment