Considering the significance of "Life, Liberty, and the Pursuit of Happiness" to all Americans, the social contract from which they are derived is the most important yet least understood topic in the United States. This article explains why Jefferson chose the particular words that he did for theDeclaration of Independence:
Jefferson was not only statingself-evident truths, but also the premise of a complex social contract, from which rights aredeductions. Even though its contextual statement is amazingly brief, it cannot really be understood without knowing how Jefferson arrived at the proposition. As the Supreme Court still uses the social contract here described in making decisions, this knowledge affects all Constitutional law as it is in the United States. As I shall explain, understanding this knowledge lets us predict the future too.
Because natural rights are described as 'self evident,' virtually everyone assumes there is nothing else to know about them. So first, one needs to bu understoodwhy the natural rights are described as self evident. The Declaration of Independence states them in a deceptively short way. It will take many thousands of words to explain their meaning:
"We hold these truths to beself evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness."
-Declaration of Independence (Philadelphia, 1776)
Jefferson's draft originally stated truths to be 'sacred and undeniable' (as detailed later inJefferson's Natural rights). Benjamin Franklin changed it do say that truths are 'self evident.' It is the reason and result of that change that are summarized below.
The idea ofself-evident truth was actually neither Jefferson's nor Franklin's, but pioneered another founding father calledThomas Paine, who adhered to a philosophical school callednaïve realism. John Adams, James Madison, and Benjamin Rush are also correctly said to be followers of this idea, whereas Jefferson himself definitely was not, although sometimes misrepresented that way because he was tolerant of the idea. Jefferson, like Franklin, was an adherent to an entirely different epistemology (or, theory of knowledge) callednaturalism, which holds that truth is known through the rational inferences of philosophy, and validated by the empirical research of science. By contrast, according tonaïve realism, truth is known automatically by no more than simple intuition: truth simply bursts into the mind without other need of explanation:
"The mind, in discovering truth, acts in the same manner as it acts through the eye in discovering objects....Such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.”
- Thomas Paine (Philadelphia, 1792).
The majority of other members in the first Congress, who did not possess the more extensive education of Jefferson and Franklin, felt thisself-evident intuition was sufficient. Partly for this reason, Jefferson accepted the change. Perhaps more importantly, as will be discussed later, the theory of democracy holds that no person has a greater right to select a ruler than any other, regardless of their knowledge and expertise. As many people have no education in philosophy, and therefore no other way to decide what is true, the permission of self-evident truth as a method for judgment is necessary in most democratic systems, including the USA. Jefferson himself felt such intuitions could be misleading, and therefore sought education as a Constitutional right, to improve the understanding.
1.1. Resolving Conflicts in Intuition
Sadly, there are fundamental problems with regarding common sense as the source of discernment in natural rights. This is because intuition is the product of experience, and different people have different experiences. Therefore, two people with different experiences can have totally opposed intuitions on exactly the same subject.
For example, in the abortion debate:
- Right-to-Choice advocates intuitively believe that the Mother should have the right to decide on an abortion.
- Right-to-Life advocates intuitively believe that abortion is killing a child.
The opinions contradict each other, but are both based on intuition, and therefore, both held as self-evidently true. Naïve natural justice therefore runs into problems of defining what is right or wrong based on intuition alone, due to the different knowledge and experience that people have acquired in their lives.Common sense alone leads to irresolvably contradictory conclusions. Thus, intuitive ideas by themselves cannot define a sufficiently complete system of natural law such that differences of opinion are definitively reconcilable.
How does one resolve the conflicts between intuitions on different truths that are contradictory, but all held as self evident? Religion simply states that the more divinely inspired have better intuitions. But in secular decisions, it is not so easy, because the solution is defined by rationality and logic. In this latter case,naïve natural law is not sufficient, and one needs a more complicated system of logical reason to determine decisions.
1.2. America's Dual System
When Jefferson defined the social contract in America's Declaration of Independence, he was aware of the limits of self-evident truth. Therefore he used a complicated system of logical reason to choose the natural rights of life, liberty, and the pursuit of happiness. He chose the system ofJohn Locke as basis. Other framers, mostly not having the education granted Franklin and Jefferson, found Locke's long chain of thought too complex to follow. Yet even those without education in philosophy felt the ideas couldalso be self evident from intuition. Hence, in the writing of the declaration of independence, natural justice was assumed as self explanatory, even though Mr. Locke himself did not agree with that notion:
"No man's knowledge can go beyond his experience"
-Essay on Human Understanding, Book 2, Chapter 1, section 19 (London, 1670).
Of Jefferson's choice of Locke, and the amount it was not understood by others, there is no doubt. In the following letter excerpt, Jefferson names three paintings in his home as the "trinity of the three greatest men the world has every produced: Bacon, Newton, and Locke," of whom only Locke wrote political philosophy:
I invited [Mr. Adams and Colonel Hamilton] to dine with me, and after dinner, sitting at our wine, having settled our question, other conversation came on...The room being hung around with a collection of the portraits of remarkable men, among them were those of Bacon, Newton and Locke, Hamilton asked me who they were. I told him they were my trinity of the three greatest men the world had ever produced, naming them. He paused for some time: "the greatest man," said he, "that ever lived, was Julius Caesar." Mr. Adams was honest as a politician, as well as a man; Hamilton honest as a man, but, as a politician, believing in the necessity of either force or corruption to govern men.
The Letters of Thomas Jefferson 1743-1826, To Dr. Benjamin Rush (Monticello, January 16, 1811)
To reach the propositions on which Jefferson based theDeclaration of Independence, Lockethought through the natural rights of people first, using even more complex reason than summarized in this essay.After that, the naïve realists said the conclusions from Locke's ideas were self evident. Those without knowledge of the empirical system can still argue about them in terms of common sense, and in most cases, their rationale is trivially wrong, as far empirical reason is concerned. However, the existence of a dual system of judgment also permits imagination, from intuition, to create paradigm shifts in rarer but important cases, such as for example, and most notably so,Martin Luther King. Thus, the dual system also provides extra strength, as well as allowing democratic changes to the nation's leadership.
However, sadly, most people are now unaware that anything besides intuition led to the choice of the natural rights in the United States constitution, and still believe they were only chosen intuitively. But intuition alone could lead to choosing anyother natural rights, different from those which Jefferson actually did select. Other nations which have attempted to define a constitution as basis of authority did not use the same system of reason, but instead relied on intuition alone. But those notions have a basic problem. Without taking Locke's thought into account, the 'self-evident' rights could easily be anything else that appeals to common sense.
For example, American rights could be based on 'freedom, equality, and fraternity," as Robespierre attempted in France (Robespierre, 1790). But Robespierre's formulation was not based on careful thought, like Locke's. Instead of being the solid basis of a new society, as Locke's theories became in the United States, Robespierre's proposal became no more than a motto, with continuing arguments over modifications to it for hundreds of years (Embassy of France in the US, 1970).
Moreover,the social contract that defines that natural rights at the core of America's declaration of Independence,is the logical foundation of the country's entire system of government, law, and administration. Therefore it is reasonable to believe thatJefferson's choice remains the fundamental reason for the great success of this nation.
So now, what was the method of thought that Jefferson chose? In total there are many, many hundreds of thousands of words written to describe the entire system in empirical philosophy. The next topics will distill their essence, so that the complete nature of this nation's social contract may be understood.Learning this method can moreover help in predicting the consequences of future political actions. Just as there are natural laws, so also there are natural consequences, but predicting what they are here, now, is not merely a matter of naïve intuition. It requires empirical reason also, because the laws were made that way. In fact, because the reasoning is so sophisticated, the predictions can be far more accurate than by intuition alone.
But even distilling the essence will still be a long track to follow, as the thoughts have been developing for 2,800 years.
2. Historical Background
This topic is the third in a six-part series on natural law calledAll People are Created Equal.
2.1. Origins of Divine and Natural Law
The first topic, "The Origins of Natural Law," tracednatural law back toHesiod in the 8th Century BCE(links in this paragraph open that article). Hesiod'sLegend of the Golden Age recorded how people sought justice and humility, in order to return to an original state of purity. Hesiod's legend even reached theHuang'Lao in China. In the 4th Century BCE,Socrates conceived anIdeal Social Contract as a way for rational beings to establish harmonious existence. Shortly thereafter,Aristotle recognized that corruption of ideals is inevitable, concluding that democracy is the least-worse of evils. The first topic also described howGautama developed Vedanta thought in the East; and howLao'Tzu andConfucius developed the ideas ofGuan-Zhong in the Far East.
2.2. Early Divergence in Divine and Natural Law
The second topic, "Early Divergence in Divine and Natural Law," starts in the 1st century BCE, whenCicero definedLex Gentium. In his new tradition ofStoicism, Cicero derived natural law from the necessary conditions of existence in order, to restore the peaceful nobility of the Golden Age. In the 6th century,Justinian incorporated Cicero's ideas into the first attempt atLegal Codification. However, a movement back toreligious instead of secular authority had already started. In the 4th Century,Augustine had declared natural law was in defiance of the Laws of God. In the ensuing Dark Ages, Justinian's law was destroyed, and only discovered again 1,900 years later. For about 900 years, philosophy was replaced by a widespreadTheocracy. During this time, the Far East consolidated ideas of Taoism and Confucianism intoNeoconfucianism. But in the Middle East, Western ideas of theocracy even spread into the Arab tribal culturea via the new religion of Islam, started byMuhammed in the 7th century. In the 12th century, the Islamic MoorAverroes identified inconsistencies in theological doctrines which made it difficult to define how legal cases could be resolved. In the a massive treatise responding to this and thousands of other theological objections,Thomas Aquinas in the 13th century conflated Hesiod's idea of a Golden Age with Eden, suggesting that divine law could promulgate from divine purity, via natural science, into common law; but due to human misunderstanding, common law is prone to unintentional error, therefore differing from our intuitive sense of right and wrong.
Similar traditions of returning to a Golden Age are found in the Far East. The comparison I raised between the West and Fear East illustrates a fundamental and additional concept in the West which has deeply affected thought on how humanity should rule itself: the concept of divine judgment. The Western civilizations are all predicated on ideas of judgment in the afterlife, first recorded as early as 1550B BCE in theEgyptian Book of the Dead. However, the Far East has no such concept. While theHuang'Lao started with the same premise as Hesiod, their conclusions are far different, creating a set of protocols which persist in China to the current day. In the West, Augustine established the idea that true happiness is obtained by focusing on the judgment in the afterlife, rather than this life, and that human law is therefore, in fundamental nature, flawed. Hence in the West, most people are convinced that their own idea of what is right and wrong defines what justice really is. By contrast, in the Far East, most people think that many laws are bad, but their opinions do not change whether justice regards defines how actions are judged as right or wrong.
2.3. The Printing Press Accelerates Sharing of Ideas
In ancient times, the evolution of thought was mostly slow and sparse, because the ideas of previous thinkers had to be transcribed by hand. This was all about to change in the 15th century. AfterPetrarch found Cicero's Letters and proclaimed the end of the Dark Ages, a scant 46 passed before an event which truly changed the world:Gutenberg's printing press, around which the Western civilization itself pivots. Prior to printing, previous ideas had to be transcribed by hand, which both impeded the speed of sharing and limited the audience. Gutenberg's innovations in printing accelerated and widened the sharing of ideas. And the technology spread with astounding alacrity. When Gutenberg printed his first book, there were ~30,000 books in the entire world. By 1500, ~240 publishers in Italy (1465), Paris (1470), and London (1476) had already printed ~12 MILLION books. The first printed works included poetry, Synodic records, history, romance novels, Greek grammar, and dictionaries. By 1600, there were perhaps 200 million books; at least two books for every person alive. Strasbourg printed the first newspaper in 1605. A printing press was set up in North America in 1632, only 12 years after the Mayflower arrived, indicating its cultural importance already by that time. By 1700, there were ~5 books per person, with ~3,000 new titles per year. By 1800, there were ~12 books per person, with ~7,000 new titles a year. Numbers after the industrial revolution are difficult to estimate (Buringh , and McEvedy, ).
While now we take the printed word very much for granted, it is important to note here its sudden influence, as ideas started to evolve at a far greater rate than previously have been possible.
Grotius introduced the modern idea of natural rights of individuals. Grotius postulates that natural rights of individuals enable self-preservation, providing a basis for moral consensus amidst rising religious diversity.
Grotius' innovation was to create an idea ofPositive Law. Aside from some ideas ofCicero and the Socratic social contract fromPlato, all ideas of law in the past had been on restrictions or punishment. The idea of rights, on the other hand, allows the construction of law to protect, rather than restrict, the liberties of individuals.
In seeking a kind of natural law that everyone could accept, he falls back to the first quoted author inThe Origins of Natural Law, Euripides:
For the Gods hate violence. They will not let us grow rich by rapine, but by lawful gains.
Any abundance that is the fruit of unrighteousness is an abomination.
The air is common to men, the earth also where every man, in the ample enjoyment of his possession,
must refrain from doing violence or injury to that of another.
-Helena, Euripides, (Athens, ~412 BCE),
- quoted in "On the Law of War and Peace," Grotius, Chapter 1, Book 1 (Amsterdam, 1625)
As such, Grotius' ideas are an extension ofAquinas, which are in turn an extension ofAristotleian fate. Later in his work, Grotius claims the value judgments on which natural rights could be based would still exist, even if there is no God. However, he was not able to define exactly how that could be. So while he is credited with inventing the idea ofintuitive natural rights as they exist today, they were still defined by Aristotle's divine law, rather than as a product of a secular social contract. While his conception of individual rights was innovative and challenging to others, he was not able to make any serious contribution as to how natural rights might actually be defined. But other thinkers were working on the problem.
Due to the relatively recent invention of the printing press, Grotius' ideas were able to spread much faster than in the past. When books were transcribed by hand, it typically took several hundred years for other thinkers to develop a new idea. But Grotius' idea of rights was very rapidly picked up byLocke to form the social contract as we know it in America today.
TheState of Nature is an imaginary condition where there is no government or authority to control human interaction.
Both Socrates and Aristotle sought to increase freedom by systems of law. Their experience and intuition created ideas of law and government whose depth and expanse were largely unmatched for almost two millennia.
3.1. The War of All Against All
In the 17th Century AD, Thomas Hobbes wrote the landmark book Leviathan, describing a new idea for a secular social contract. Up to this time, the social contract was purely understood by intuition, and to many remained doubtful for that reason. Hobbes was the first to definethe State of Nature, an imaginary state in which there is no authority at all. As there is no authority, there is also no law. This is the basis of Hobbes' thought experiment.
Hobbes starts with the premise that human beings are naturally evil, that is, without any enforcement of good behavior, human beings have no reason not to hurt each other.
To Hobbes' imagination, the result would beBellum omnium contra omnes, a war of all against all. Because there is no law, nothing belongs to any person, and so everybody simply tries to take anything they want. As there is no social contract, there also would be no effective cooperation, no industry, no culture, no roads or other ways to travel, no buildings, no machines, no maps, no clocks, no arts, and no writing.
Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continual feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short
—Leviathan, 13:5, Thomas Hobbes (London, 1651)
Instead there would be continual fear, and danger of violent death. People would live like animals alone, impoverished, and nasty, then dying early by natural causes if not killed before. The list could continue, in the modern era, to include all the sophistications we can now enjoy since then, such as medicine, technology, fruits from the other side of the world, and so on. It would be like livingas if there was a war between everybody, but without weapons or military organizations. Another person could kill you at any time. A life of continual fearfulness. That isthe imagined state of nature.
3.2. The Primary Rules of Nature
The desire to avoid such a state of nature is the foundation stone of new political thought, because people will naturally accept rules rather than live in such a horrific state continuously. By such reason, the two rules are:
- To seek peace where possible
- To renounce one's right to aggress against others, when others are willing to do the same.
As a result of these primary rules, people naturally create a commonwealth with shared property, with authorities to punish those who disturb the peace. Simply creating the commonwealth does not stop people from using violence and war when they can, so the commonwealth must be continually vigilant, and the rulers must always be ready to stop any crime.
Because Hobbes' system is built on distrust, the authority cannot be elected democratically. Hobbes decided a monarchy with hierarchical power is best. He proceeded to elaborate on how all the various levels and departments in the hierarchical monarchy would serve all the needs of the people. Also he elaborates on the primary rules of nature, to define 17 laws of nature and 12 rights of the sovereign. Hobbes does not define any natural rights for the subjects.
3.3. Reactions to Leviathan
Hobbes was perhaps a man too far ahead of his contemporary thinkers. Mostly he was criticized as an atheist, and the hierarchical authority with a sovereign monarch was largely ignored. Nonetheless the size and expanse of his detailed system did impress philosophers, and it became somewhat of a template for future works synthesizing many hierarchical elements into a unified aggregate.
Hobbes' thought experiment became the foundation of future political theory, as described in the next section, So, despite the overall poor reception, his invention of an imagined state of nature precludes his exclusion from any serious discussion of current political theories on the foundation of the United States itself.
Even since then, it has remained largely misunderstood that the state of nature is only imagined. Hobbes' resulting social contract might appear impressive too due to its extent, but that also makes it appear even more arbitrary, due to its size and many conditions.
It is surprising how infrequently people consider Hobbes' state of nature as anarchistic. There is one modern thinker, Jan Narveson, who has based a new ideal social contract on Hobbes, who is anarchistic, but believes the solution is awareness of moral obligation (see for example, Jim Narveson). Idealist systems are here discussed to some extent later, underTranscendental and Atheistic Social Contracts.
But most bizarrely, many people now often point out that they would not accept a social contract that enables such a punitive system. To people now, it does not seem the state of nature he tried to propose as the worst possible state was any worse than the social contract it created. But in Hobbes' time, everyone definitely did think his state of nature wasreally worse, as Hobbes' model for monarchism was rather similar to the ideals of the time. Were people in Hobbes' era actually much happier than most people now? That certainly is not the prevailing view now, but maybe it is something worth thinking about.
AState of War is undesirable aggression that results from abrogating the social contract. Note that a State of War is, by definition, the result of breaking the Lockean contract, because the Lockean contract is specifically defined as that which avoids it.
4.1. Nature, War, and Rights
The above topicHobbes' Thought Experiment mentioned how his invention of an imaginarystate of nature would be a foundation for future political theories—most significantly, Locke. But Locke's state of nature is different from Hobbes in four important ways:
- Hobbes' premise is that people are essentially evil. Locke's premise is that people are essentially good. For this reason, the social contract is regarded asBenign.
- Hobbes uses two main concepts with respect to natural law: astate of nature, leading to asocial contract. Locke has a third concept, aState of war.
- Hobbes does not define natural rights for the governed population. Locke deduces natural rights empirically from the nature of the social contract.
- Being benign, the Lockean contract allows citizens to choose authority via election, in a democratic process, rather than imposing a monarchy, so the people have a choice as to whom rules them.
Again this essay assumes that the process of a democracy itself is well understood, and simply focuses on the less familiar nature of an empirically derived social contract. For this, Lockecombined the ideas of Grotius and Hobbes. Hobbes did not have an idea of rights;Grotius had a new idea of rights, but did not have the idea of an imagined state of nature; Locke put them together in the most powerful formulation of a new political theory for at least a thousand years.
4.2. Deriving Natural Rights
In Locke's approach, the social contract is initially derived the same way as by Hobbes: by considering an imaginarystate of nature, in which there is no political system, leading to the risk of war and conflict at all times. While Locke does not regard people as necessarily evil, he realistically accepts that war can occur, and considers how to prevent violence.
To do so, he imagines another state, similar to the state of nature, but different in that members of the population are at war with each other.
In Locke's model of natural law, he then considers what rules are necessary in the social contract that some war does not start. Then the social contract is imagined by splitting the simpler world of the natural state into the complex interchanges between responsible government and privileged subjects. In the split, the authorities are given rights to control the population. In exchange, the citizens receive rights as to what they may do without government intervention. The act of splitting the population into those with authority and those who are governed itself constitutes a barter, or exchange of powers. If the government is given more authority, the subjects receive more rights.
The empirical test of the system is whether the resulting balance between citizen rights and authority results in peace. If the citizens rebel, then they were not given enough rights. If some citizens are obedient and others cause them harm, then the government does not have enough authority to prevent a state of war.
The citizens' rights are necessary for the social contract to succeed, and calledNatural Rights, partly because they are additions to this 'state of nature,' and partly because they are a direct product of the natural needs of existence itself. Without such natural rights, the social contract would fail. Thus, such rights both exist because of the social contract, and are those rights necessary for the society to succeed peacefully.
What does it mean to say that rights are produced by the natural needs of existence? It would be nice to say that our natural needs are only our physical needs, such as food and water. But our physical needs also include having children, and children need more than just food and water. They need a place to live where they feel safe; they need to learn; they need additional protection from dangers in the world they do not understand; and they need to play too!
To achieve this Locke defines three primary hierarchical rights:Life, Liberty, and Property. All have a right to liberty as long as it does not interfere with life. All have a right to property as long as it does not interfere with life and liberty. But why, you may ask, did he choose these rights, and this order?
To some extent, the primary rights can change. When defining the United States, Jefferson included Pursuit of Happiness instead of Property. The next essay will detail definitions of the rights in the Declaration of Independence, and explain why Jefferson chose Pursuit of Happiness instead. But the earlier rights are increasingly fundamental. So this essay first uses the rights to property as an illustration of how the benign contract works.
4.3. Property as a Right
In example best explains how Lockean natural rights work:
What seemed at first an irresolvable question has a beautifully simple answer. That is how Locke's system of natural rights works, and that example shows how well it works too. For more complex situations, the specifics of the rights need to be spelled out in detail, and the next essay will describe that completely.
The natural rights, together with the social contract, constitute NATURAL LAW. When people first learn about natural law, they think it is intrinsic and unchangeable, but in fact it continually varies, depending on the social contract, and the evolving environment of the society, not just with reference to the status of participants, the status of those outside a group's contract, religious beliefs, and morals.
There may also be partial breakdowns of the social contract, causing war either within, or between, socially or politically separated enclaves. When the strife is within the nation, or the nation is not successful in war, than the social contractshould change to accommodate the new situation.
Life, Liberty, and the Pursuit of Happiness are the necessary conditions for peaceful existence arising from a theistic premise that all people are equally judged by God, regardless of their wealth or family's social status. When law is enforced too much, liberty is lost, so there is rebellion. When law is enforced too little, life and pursuit of happiness are lost, so obedient citizens suffer.
Locke derives the rights in his above describedsocial contract via rational deductions, based on the fundamental experiential and biological conditions of pluralist existence. While there are a couple of historians who have claimed otherwise than the interpretation expressed here, they are very much in the minority fringe. This section describes the establishment view.
5.1. The Declaration of Independence
Before America's declaration of independence, the British had violated natural law. For example, in the Boston Tea Party (1773), citizens objected to sending England tea to put in teacups, because there hadn't been any British effort to provide city drinking water at all: That's why Jefferson started the declaration like this:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
-Declaration of Independence (Thomas Jefferson, Philadelphia, 1776).
Jefferson is stating that the British have violated the natural rights of Americans, by not providing that which is entitled to all individuals under natural law (the Law of Nature) and the law of God; specifically, in this case, water. He then specifies the natural rights that the United States itself believed all people in its social contract deserve:
"We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness."
-Declaration of Independence (ibid.).
Then Franklin changed "We hold these truths to besacred and undeniable..." to, "We hold these truths to beself-evident," as here described earlier underSelf-Evident Truth, to create the contract's dual system. The empirical basis of Jefferson'srational social contract is now outlined in more detail.
Between Locke and Jefferson, there was an explosion of philosophical thought now calledWestern Empiricism. Most important to the topic of natural law is Hume's guillotine, which remains to this day as a necessary method to separate facts from beliefs. Even some popular branches of modern ethics, such as objectivism and militant atheism, do not pass the guillotine test.
Simply said, the guillotine splits that whichought to be done from that whichexists, because moral or ethical rules cannot be derived from empirical observations:
"In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason."
-A Treatise of Human Nature, Book III, part I, section I (David Hume, 1739)
To use Hume's guillotine, one examines a proposition, searching for statements about what 'is,' versus 'what ought to be.' Hume's point is that no observation about what is can be used to deduce that which one ought to do, without introducing a belief as an additional premise. If a belief is present, the value system to which the belief belongs can determine the truth or falsehood of the conclusion. For example:
..He is hungry
Without the value statement in parenthesis, there is no way to state the conclusion is necessarily true; thus, without the value statement, Hume's guillotine would split the proposition into unassociated statements. Despite the inability of anybody ever to find a way around Hume's guillotine, there remains some philosophers convinced their ideas are proof against it.
Objectivists attempt to circumvent the issue by redefining the rules of formal logic to those which Ann Rand believes. Specifically, they state that an ethical proposition "defeats its opponents" in a Darwinian manner. As far as formal logic is concerned, Rand has converted philosophy into a belief system (holding that the purpose of life is simply to conquer), and therefore is a religion which itself denies that it is a religion.
Militant atheists are similar, and state that Darwinism is a rule of nature, therefore ethical statements must always assume that the purpose of anything one ought to do is to improve one's chances of survival. That is, instead of redefining logic like Rand does, they state one ethical system is necessarily true, and therefore always applies.
Hume's guillotine is important in natural law, because, unless you make an assumption like militant atheists (or change the definition of formal logic like Rand), one cannot make a statement about natural rights, or natural justice, without introducing a value statement.
Contrary to what most think, the title of this essay, and Jefferson's premise in the social contract, are both value statements. This theory of natural rights, as stated by Locke and as it existed when the Constitution was framed, is not completely taught in public schools, because it is theistic. As a result, the following explanation surprises many people.
First, Locke argued, each individual is endowed by the power of WILL, to choose one action over another; by which our souls are formed, which in divine judgment may know joy or suffering, depending on how our choices affect the lives of others. For that reason, the premise of natural law isAll are Created Equal in the Eyes of God. Including God in the premise is necessary to the formulation of the United States social contract for two reasons:
- The premise provides a value system, to pass the test ofHume's Guillotine. Without this theistic assertion, the proposition cannot state that which people ought to be able to do.
- Our desire to please God is actually necessary for the third natural right to work at all.
Locke's own perspective, common to the era of his life, is that it's so obvious weshould desire to please God, it requires no further explanation:
"God, who knows our frailty, pities our weakness, and requires of us no more than we are able to do, and sees what was and what was not in our power, will judge as a kind and merciful father."
- On Power (Essay on Human Understanding, 2:21:43, John Locke, 1689).
The point of Locke’s premise is that all are equalIN THE EYES OF GOD, because God is only concerned with how we respond to our situation and thus are judged by God.Inequalities of property or family privilege are really of no importance in that premise. If Jefferson had written "all men have equal rights," one would know it is referring to human justice. But the phrase "all men are CREATED equal" refers to our equal status in the eye of the Creator, and is therefore a moral or ethical value, rather than a legal right, no matter how often it is interpreted otherwise. For this reason, Jefferson originally stated that the truth is sacred and undeniable as astatement of faith.
Why did Jefferson believe the natural rights he defined were sacred and undeniable? This argument, and all that follows, derives from inon Power (John Locke, "Essay on Human Understanding," Book 2, Chapter 21. 1689 AD). The full discussion of thehuman condition is far more extensive, and here is only summarized; and the human condition is only part of a larger schema.
Locke considers how we would exist if there were no more than the power of free will. Locke's observes that this power of will, endowed to all, is without purpose in and of itself. He deduces we would remain unmoving, as rocks and stones, seeking neither change nor progress nor civilization. So God in his infinite wisdom gave us, through theLaws of Nature, hunger and thirst. For, Locke observes, as each day these needs must be satisfied, these biological needs create the appetite from which all other human happiness flows.
"This is the spring of action. When a man is perfectly content with the state he is in- which is when he is perfectly without any uneasiness- what industry, what action, what will is there left, but to continue in it? Of this every man's observation will satisfy him. And thus we see our all-wise Maker, suitably to our constitution and frame, and knowing what it is that determines the will, has put into man the uneasiness of hunger and thirst, and other natural desires, that return at their seasons, to move and determine their wills, for the preservation of themselves, and the continuation of their species."
-On Power (Essay on Human Understanding, 2:21:34, John Locke, 1689).
ThereforeLife is the Primary Natural Right, which is a right to our simplest biological requirements—Our needs for water, food, sanitation, health, shelter, and to have our own families. Due to the great increase in understanding of our biological condition, this fundamental right is well understood. But the other rights, like the premise and the social contract itself, are most definitely misconceived in the modern world.
Locke has observed, because of hunger and thirst, there is a perpetualUneasiness of the Soul, whence springs Desire. But to each person, desire is different, for whatever reason of nature or nurture it may be, it does not matter. Each person's unique desire cannot be defined or predicted by any other person, but is only known to each of us ourselves individually.
Therefore we requireLiberty to choose the satisfaction of our desires for ourselves. And that is the main foundation of the Jeffersonian social contract. Within this contract, each person may seek more or less, through effort of work, to obtain as much, or as little, or in whatever way each person finds best, fulfillment of desire; and to whatever each may desire, no other can say. Hence from necessity of hunger and thirst,Laws must grant liberty to choose how the soul, in its uneasiness, is fulfilled in different ways for each one separately. ThusLiberty is a Necessary Secondary Right.
"Now, let one man place his satisfaction in sensual pleasures, another in the delight of knowledge: though each of them cannot but confess, there is great pleasure in what the other pursues; yet, neither of them making the other's delight a part of his happiness, their desires are not moved, but each is satisfied without what the other enjoys; and so his will is not determined to the pursuit of it. But yet, as soon as the studious man's hunger and thirst make him uneasy, he, whose will was never determined to any pursuit of good cheer, poignant sauces, delicious wine, by the pleasant taste he has found in them, is, by the uneasiness of hunger and thirst, presently determined to eating and drinking, though possibly with great indifferency, what wholesome food comes in his way."
-On Power (Essay on Human Understanding, 2:21:44, John Locke, 1689).
Note howthis definition of liberty is different than the naïve view. The liberties to which natural rights entitle us are those which enable us to havechoice in that which we acquire and desire. It is not a blanket statement as to all that which we may do. For example, if you are on someone else's property, they can restrict your freedom, and not contravene your rights. As a trivial example, a supermarket can require you to wear a shirt while you are inside it—as long as it does not contravene the third natural right.
Note also that this view of liberty permits individuals to believe in the religion of their choice, even though the rights which individuals receive are based on a theistic premise. Jefferson found it necessary to explain this to some baptists, which he did as follows.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.
, -Letter to the Danbury Baptists Thomas Jefferson(Monticello, 1802)
Liberty is not of the same order of importance as the natural right to life, but still a natural right whence pleasure results, in the course of each person seeking to fulfill their own desires. The satisfaction of hunger and thirst createsPleasure—a simple happiness of the first order. But for true happiness, we cannot consider our own pleasure alone, but also the needs and desires for others. Locke's argument is that happiness is illusory if we do not account for others in the actions of our own will, byActing for the Greater Good. Because of the needs of others, we sometimes need to suspend our own desires—a fact for which Locke is, if anything, apologetic. But Locke also explains that we actually discover greater liberty in pursing the greater good, because it frees us from living only for our own desires:
"THE NECESSITY OF PURSUING TRUE HAPPINESS is the Foundation of Liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty. The stronger ties we have to an unalterable pursuit of happiness in general, which is our greatest good, and which, as such, our desires always follow, the more are we free from any necessary determination of our will to any particular action, and from a necessary compliance with our desire, set upon any particular, and then appearing preferable good, till we have duly examined whether it has a tendency to, or be inconsistent with, our real happiness: and therefore, till we are as much informed upon this inquiry as the weight of the matter, and the nature of the case demands, we are, by the necessity of preferring and pursuing true happiness as our greatest good, obliged to suspend the satisfaction of our desires in particular cases."
-On Power (Essay on Human Understanding, 2:21:52, John Locke, 1689).
Locke is pointing out that happiness from the satisfaction of physical desire is temporary and transient. By suspending our own desires and acting for the greater good, we can obtain a more permanent and solid happiness. The similarity of this to the four Noble Truths, the foundation of Buddhism, is not because Locke himself knew the theories of Buddhism, but rather that both methods start by considering the fundamental nature of our existence, and so both systems arrived as the same conclusion independently.
ThereforePursuit of Happiness is the Tertiary Right because, in pursuing true happiness, we act not simply for ourselves, but for the greater good, which results in the product of our noble society. On this basis, individuals are entitled, for example, not only to property, but also to state-supplied education. But individuals can only pursue happiness insofar as it does not interfere with life and liberty. Nonetheless, while pursuing happiness is a right, acting for the greater good is not a requirement. In order that God may judge us in our treatment of others, our acts for the greater good cannot be forced against our will, except in as much as necessary to maintain the social contract.
Locke tried very hard to find a way of defining "pursuit of happiness" without including a need for God to judge our actions, but he couldn't quite do it. So the United States decided that pursuit of happiness is a natural right to its citizens, and therefore the declaration of independence isUnder the Law of God. But other countries do not acknowledge God in their constitutions, and therefore the modern statement of natural rights, asHuman Rights in the United Nations, does not include pursuit of happiness for all. Pursuit of happiness is a unique natural right to the United States, because the nation was formed under God. And that is why the pledge of allegiance is an oath under God (some want God removed from the oath of allegiance, but if it were removed, the natural rights under the constitution would be broken).
Those familiar with natural law sometimes state that existence of God is not necessary to it. And in fact this has become a very big problem in America, because the social contract, as Locke defined it, assumed that pursuit ofTrue Happiness is acting for the greater good of all. As America has slowly removed God from the social contract, Locke's vision has started to break down. For example, according to Locke, the very rich should look after the very poor, and according to the nation's natural rights, the rich cannot be forced to do so. Butpursuit of happiness is now mostly considered only a selfish motive in people's minds. The rich do not look after the poor, but instead seek influence and money only for themselves, also manipulating legislature to reduce their own taxes. So an undue proportion of welfare now falls into the tax burden of the lower and middle classes.
5.7. Happiness, not Property
Locke's originalTreatise on Government defined Property, rather than Pursuit of Happiness, as the third natural right. Because the third natural right is pursuit of happiness, the government has authority over other fields of human activity besides that which people own. For example, it can create transport systems, public schools and universities. Also, it can enforce the rights of people to recreation, resulting not only in its ability to operate public parks, but also permitting it to limit the number of hours that an employer can require of employees. Further, it can help with healthcare and retirement. However, the pursuit of happiness is secondary to liberty, so the extent to which the government can tax and enforce such matters is limited.
Most people who study politics only read Locke'sTreatise on Government, and so are unaware of how Jefferson decided on the "sacred and undeniable rights to life, liberty and the pursuit of happiness." However, it remains the task of theSupreme Court to exercise and interpret the natural rights as Jefferson intended. This mostly unknown process of reason not only influences all of American government, but also is the highest consideration in the opinions of the highest court in the land. While others may disagree with their theistic basis, it cannot be ignored as the foundation of peace and lawful order in the nation created by Jefferson's declaration.
6. Constitutional, Common, and Legislative Law
Constitutional Law is an enumerated declaration of specific rights and restrictions, based on the United States social contract as it was originally defined by the founders, and evolving to the needs of current society, as interpreted by the Supreme Court.
While natural law provides a system of thought to create a balance between government authority and citizens' freedom, in the course of life the government has to decide on resolutions to many specific issues. In the distant past, the educated simply used their own knowledge to resolve disputes as they arose, but over time differences in their opinions too often resulted in long debates.
Therefore, after the formation of the United States, it was decided to state the laws and rights in specific terms. To do so, the government created a small set of 'constitutional laws from which 'common laws' could be derived.
First, it need be noted, Rousseau published his own version of the social contract in 1762. While Rousseau was a very talented rhetorician, he had less original ideas, and most of his thought plagiarizes of Locke's. Although he had other significant changes which will be discuss later, his main innovation was to substituteGeneral Will for Natural Rights.
The law is the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally admissible to all public dignities, positions, and employments, according to their capacities, and without any other distinction than that of their virtues and their naïve.
-Social Contract, or Principles of Political Right, Jean-Jacques Rousseau (Paris, 1789)
While that idea has merit in game-theory models, it does not permit natural law, because the rights change depending on the sum of all people's desires, thus providing no real inalienability. Rousseau also spoke eloquently of the need of a proletariat to defend itself from a dictatorship, to which protection from slave revolt was annexed (here I use the word 'proletariat' in the original Roman sense, referring to a citizen without voting rights, and not the suffrage of an uneducated populace without the ability to consider its best method of rule, as the word came to mean in communist doctrines). This led to his rhetoricalDeclaration of the Rights of Man, with 17 rights. Here is the preamble and first two:
The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:
- Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
- The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
...-Declaration of Rights of Man, Jean-Jacques Rousseau (Paris, 1762)
Again, by placing "social distinctions" on "the general good," the statement of rights failed to create any foundation of empirical reason for law, and so there were no natural rights by constitution, and instead, legislative bodies modified the contract in response to popular opinion.
Rousseau's contributions arrived a little too late on the scene to influence America's original constitution, but Rousseau's revolutionary fervor did have affect on the Bill of Rights, which, in fear of slave rebellion, added the 2nd Amendment.
6.2. Derivation of Constitutional Law
While the USA's original constitution focused on the structure of the government, it was quickly realized that many additional rights needed to be described legally. TheBill of Rights (Madison, 1791) specifically defined the entitlements of the people in a common-sensical way. At his point, there came into existence two separate sets of individual rights: natural rights, and constitutional rights, with the following crucial differentiation:
While natural rights are inalienable, individual rights are revocable for those who break the Lockean social contract, either due to incapacity to keep the social contract, or due to its intentional violation.
For example, at the time of formulating the Bill of Rights, there was fear of slave revolt, or invasion, or corrupted rule in Aristotelian terms. And so the 2nd amendment was included. Originally this particular amendment was derived more from Rousseau than Locke, influenced more by Hobbesian fear than Lockean reason. But as the 2nd amendment is actually in conflict with natural law, it is one of the few constitutional rights which has a condition, and so, the condition is very important for compatibility between the legal systems. The condition is that the 2nd amendment applies to the formation of a militia, to protect the freedom of the nation, and not intended to entitle an individual to any rights over those of natural law. The condition exists because the natural right to LIFE takes precedence over the natural right to LIBERTY. This interpretation persisted until the Heller amendment (2010), when the Supreme Court decided that the framers did intend it to protect the rights of individuals to defend their own property too.
This is one illustration of how natural law changes over time. The United States Constitution provides a mechanism to change constitutional law. After elected officials approve the changes, the Supreme Courtinterprets the law in a consistent manner with natural law and pre-existent law. This mechanism, though slow, allows the nation to adjust the social contract in response to new needs;and this topic will be more thoroughly considered in the next topic in this series, "The Balance of Power in the United States."
This series,All People are Created Equal, contains three further topics:
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