[ExI] Natural law

Dan dan_ust at yahoo.com
Mon Aug 1 18:30:12 UTC 2011

Maybe he was using it merely as a synonym for "me no like," but I doubt it.
Also, there's a difference between hyperbole and the natural law use of criminal. The two are not the same. To wit, natural law, especially as conceived by libertarians who see it as the basis for some of their views (note that not all libertarians agree on this), would clearly delineate in most cases between what's criminal in natural law terms, what's criminal according to actual laws, and what's merely distasteful or repugnant.
With regard to "legal tradition," the natural law argument is usually that even these must be tested. They are not accepted merely because being customary, old, or respected. In fact, natural law arguments were often deployed against time honored traditions, such as the right of conquest in the New World.
One should also be careful here. Something like common law has been around in many places -- not just Anglo-Saxon England and places it conquered. The more wider concept is polycentric law -- law where there is no one central monopoly on legal authority. That actually seems to have been the norm in many times and places and might even be the default state for humans if not for any social organism that's similar to humans.
Regading changing the law, as I've pointed out before, natural law theory has for centuries been used to do just that: do act as a framework to critique extant legal codes and alter them. And, as pointed out above, one can be a criminal by a natural law standard and yet not be one by a government law. Merely pointing out that that's not what the state or government law means by "criminal" ignores this. (I'm well aware of how legal positivists approach this.)
On Aristotle's views of slavery, etc., one need not accept them to accept the basic tenet of natural law. In fact, I think part of the problem for many people is not so much that the idea in the abstract is wrong, but that natural law has sometimes been deployed for positions they disagree with and that they otherwise believe are wrong (often rightfully so).
When you state that natural law "restrains human groups from giving themselves the laws of their choice, implicitely denying, inter alia, any kind of truly democratic legislative process and international-law principle of non-interference," I think you're overlooking two important points here. The first is that the libertarian natural law view would put restraint on interference in general. For instance, it would be very difficult for the US to carry out any of its war were it under this sort of law. First off, it would lose the power to tax and use violence against its subjects -- a necessary component of being able to use violence against people in other countries. Natural law in this sense doesn't condone violating rights -- even if a justification is given such that violating rights is supposed to restore or protect rights. In other words, one can't steal from one person to right a wrong for another if the former had nothing to do with the latter.
The second is that "human groups" is a loaded term, especially in terms of self-determination. The libertarian view is that selves have a right to self-determination and groups only have such a right by derivation. In other words, there are no groups rights over and beyond individual rights. And the problem here would be that one person or a small group would claim to self-determine everyone else's life. And thus libertarian natural law view is such groups can only self-determine voluntarily. For instance, if you want to become Amish along with others, that's fine, but you don't have any right to force others to do so -- even if you claim or indeed do have a majority in a certain region.
And this would play out for transhumans and posthumans too. They can voluntarily deal with others, but cannot coerce others --  even if they sincerely believe it's for everyone's benefit.
Finally, in this view, there would be right to prevent others from transhuman or posthuman experimentation -- provided it violated no one else's rights. (In fact, libertarianism would permit self-destruction of the sort traditionalists and most actual legal codes today wouldn't allow. For instance, suicide would not be illegal.)

From: Stefano Vaj <stefano.vaj at gmail.com>
To: Dan <dan_ust at yahoo.com>; ExI chat list <extropy-chat at lists.extropy.org>
Sent: Wednesday, July 27, 2011 7:24 AM
Subject: Re: [ExI] Natural law/was Re: Libertarianism wins again...

2011/7/26 Dan <dan_ust at yahoo.com>

Don't you agree? He seemed to me to be using it in a different sense -- specifically, in an extra-legal sense, such as one where one might even judge actual laws to be criminal.

I think there are two aspects here. 

The first is a linguistic and rhetorical abuse, which is btw rather recent, extending the normal meaning of "crime" from "a breach of criminal law" to any behaviour which may be distasteful or repugnant to the speaker.

The second may have to do with the specific legal tradition of Anglo-Saxon countries, where much of criminal law is of a common-law, not statutory, origin, so that one can argue that a behaviour is or should be a "crime" on the basis of the "old and honoured customs of the country", which statutes themselves should not breach unless for exceptional reasons. But, hey, witchcraft has been for a long time a common-law crime.

My guess is most legal theorists who appeal to something other than just, "Hey, this is just what the rulers define as 'criminal,' so we must completely assent to their decrees, never questioning this ever,"

No. Positive law theorists would simply say that the law is... what it is, and you ignore it at your risk. More precisely, that as long as it is in force (factually, not "in the book") it defines what is a lease, what is a subcontractor, what is a taxable income and what is a crime. But they have nothing to say about the opportunity to change it through reform or revolution. On the contrary, if you do not like a law making a criminal of yourself, this makes it even more urgent to change it, does it not?

But, then, by that usage, there's no reason to share Will's outrage at corporations being the "biggest organized criminals of all." They might be, but this might only mean they've violate arbitrarily set up rules and no more. (There would also be no difference between me waking up today and deciding, arbitrarily, "Will and Stefano are the biggest criminals of all" and similarly expressing my outrage -- save that I'm unlikely to persuade too many others about this... Thankfully so!:)

Outrage at corporations may well be justified because i) they breach laws that in fact they would be legally obliged to comply with, and you think compliance with existing law to be everybody's duty, or because ii) they behave in ways that you would like to see forbidden by criminal law, even if they currently are not, or that you merely find distasteful or immoral.

It's the tenet, rather, that there are objective laws that human made laws should conform to and these are based on the nature of humans.

Yes. Aristotles' argument that there are "slaves by convention" and "slaves by nature"... :-)

Also, natural law in the libertarian sense and even before basically supported "self-determination, diversity and change" because it restrains human-made law from trampling personal autonomy. 

Basically, it restrains human groups from giving themselves the laws of their choice, implicitely denying, inter alia, any kind of truly democratic legislative process and international-law principle of non-interference.

But, in more practical and on-topic terms, it paves the way to international conventions aimed at a global repression of any temptation for a posthuman change. Because, hey, if "everybody" agrees that it is "unnatural" to mess your your "natural right to genetic imperfection", we certainly cannot allow Estonia or Thailand to do any differently, can we?

Stefano Vaj
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