Utilitarianism, transcendental rights, atheistic social contracts, legal positivism, and human rights are new ideas that extend the original social contract of the United States. This topic examines what they are, and how they are likely to evolve.

Enhancements to the Social Contract in the USA
Enhancements to the Social Contract in the USA

Historical Background

This series,All People are Created Equal, contains six prior topics.

Origins of Divine and Natural Law

The first topic, "The Origins of Natural Law," tracednatural law back toHesiod in the 8th Century BCE. 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.

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.

The Origin and Diversity of Natural Law
The Origin and Diversity of Natural Law

The American Social Contract

The third topic, "The American Social Contract," started with howGutenberg changed civilization by making the first printed bible in 1456 (links in this paragraph open that article). With the rapid spread of printed books in the 1500s, the church no longer could maintainauthority by awe. After Martin Luther published his 95 theses as a reaction against abuses in the sale of indulgences, Protestant ideas emphasizing personal salvation from God the Son overturned the paternal Catholic church, and new ideas on secular authority again started to emerge in the 17th century.Hugo Grotius published "On the Law of War and Peace in 1625, advocating that nations could coexist by mutual agreement to enforce law. Building on Cicero'slex gentium, Grotius created the idea ofPositive Law, now known asNatural Rights.Thomas Hobbes published "Leviathan" in 1651, inventing a new imaginaryState of Nature, wherein we conceive of society without any authority. Hobbes believed human nature to be essentially evil, and therefore, in order to prevent savage violence, we need aSocratic Social Contract with authority to enable civilized peace. To both Grotius and Hobbes, authority remained imperialistic.John Locke then combined the ideas of Grotius and Hobbes to define the rational social contract and rights toLife,Liberty, andPursuit of Happiness as they exist in the United States.

Natural Rights and Constitutional Law in the USA's Social Contract
Natural Rights and Constitutional Law in the USA's Social Contract

Balance of Power in the United States

The fourth topic, "Balance of Power in the United States," integrated the other ideas in the United States implementation of natural law. The theory of common sense fromThomas Reid led to its statement asSelf Evident. The theory ofDavid Hume made it clear that a theistic premise was needed to establish its ideas.Jean-Jacques Rousseau defined an idea ofGeneral Will that enables changes to the contract.Baron Charles-Louis Montesquieu defined a tripartate separation of powers that works to prevent corruption. These ideas in combination create the homeostatic system that works to preserve peace and prosperity in the United States.

Balance of Power in the United States
Balance of Power in the United States

Marxism and Denial of a Property as a Right

The fifth topic, "Marxism and Denial of a property as a right," covered a revolutionary new approach, considering new ideas social evolution byMarx, his work withEngels to create a practical system,Lenin, andMao.

The Marxist Theory of Dialectical Materialism
The Marxist Theory of Dialectical Materialism

Since the Declaration of independence, other new ideas have augmented those of the founders, which is the focus of this topic.

Utilitarian Extensions to the Social Contract

Jeremy Bentham (1748-1832) had wide and deep consequences in law by defining a new methodology for definingpunishment proportional to the crime calledutilitarianism. In "The Principles of Morals and Legislation," (London, 1789), Bentham starts by simply assuming the definition of happiness is understood. He then goes about describing how to evaluate ethical decisions in terms of creating the most possible happiness.

The popular and simple example is walking on a public lawn. If there is a path with a corner around the lawn, can one walk across the grass rather than follow the path? If people only do so occasionally, then there is no problem, but ifeveryone cuts the corner, then the lawn is eroded and no longer attractive.

Over time, the values of beauty versus expediency change. In the 1960s-1970s, most Americans believed the liberty of expediency more important, and everyone was allowed to walk wherever they wanted on the lawns in New York's central park. Soon large portions of the park tuned into nothing but dust bowls, but people rather wanted that than restrictions on freedom. Now, opinions have changed, and the park has put fences to stop everyone walking anywhere, and cordons off areas so they can regrow.

In Oxford University there is a similar problem with grass plots in the center of quadrangles. The decision there is to let only people with PhDs walk on the grass. This system of privilege is not popular in the United States. One should note though, that all members of All Souls college in Oxford have already earned PhDs, yet its central lawn is in pristine condition, because they all mostly choose not to walk on it anyway, unless a chance event delayed their arrival at a lecture, in which case, the happiness of the students outweighs the loss to the lawn.

This constitutes the method ofact utilitarianism, which provides two guidelines for law enforcement:

  • The lost of happiness to everyone else is the measure of the degree of punishment for breaking a law
  • In some cases, a small number of people may break the law without negative consequences, resulting in laws which are not always kept, and only infrequently punished, the most obvious case being vehicular speeding, and other minor traffic offenses, when there are good weather conditions and road usage is light.

Rule Utilitarianism

John Stuart Mill (1806-1873) extended Bentham's idea by defining the principles of 'rule utilitarianism,' again best understood by example.

If everyone is required to drive on the same side of the road (with exceptions for moving into the oncoming lane when passing a slower vehicle), then everyone can reach a destination more quickly and safely. The utilitarian method is particularly effective when there is a definable numeric metric that correlates with an increase in happiness (which, in the example of traffic lanes and passing rules, is the resulting higher speed of safe traffic). Thus, rule utilitarianism is how people agree on losing a little bit of freedom, in exchange for a much greater measurable liberty for everyone, as the final result.

Even so, with such measurements, the degree of increase in happiness is still qualitative, because the value it measures is still socially defined. During Mao's rule in China, people felt that no one could force others to drive anywhere in particular, and that enjoyment of interactions on the journey were more important. But over time, as the British set up Western-style roads in Hong Kong, people wanted the convenience of faster travel instead. Note the fences down the middle of the street. These were to prevent pedestrians from walking across the road at other places besides intersections.

The Pedestrian Barriers in Early Hong Kong's City Streets.
The Pedestrian Barriers in Early Hong Kong's City Streets.

So such barriers in the middle of the road started to appear in the rest of china. Note how they are not justifiable in the terms of the social contract as the United States originally conceived it. However, as the protocol of their construction creates greater happiness, then the restriction is not unreasonable.

The provisos, as to when people may cross the road anyway, or cut corners when driving empty roads, remain increases in freedoms that a society can earn through greater ethical responsibility, which exists only rarely in the United States, primarily due to naïve and incorrect interpretations of rights to liberty and happiness, as previously described inJefferson's Natural Rights.

Issues with Utilitarianism

Even while socieity has benefitted from punishment proportional to crime, soft laws, and conventions to increase overall freedom, utilitarianism has also created three adverse affects:

  • Decadence: utilitarian ideas are based on individual happiness, which has largely replacedhappiness as seeking the greater good, as originally conceived by Locke and Jefferson. The simplicity of utilitarian concepts, compared to the elaborate system of Locke's emprical reason, has exacerbated societal decadance, as the general will to individual happiness has superceded the 'greater and more solid pleasure' of acting for the greater good, as the United States founders intended. Even though utilitarianism has little to say for the values which actually generate happiness, this has not stopped some from attempting to use it as a basis of a belief system in defiance ofHume's guillotine.
  • Teleological Fallacies: utilitarian ideas, by nature, view the end results of actions as the basis of their value. IN some cases, the end results are not the best judgment of a rule.
  • Individual and Minority Persecution: the evaluation is based on regarding happiness of all people as equal in value, but the maximization of minority and individual rights can suffer under a purely utilitarian system, because persecution of a single individual or small group could be justified if it results in greater happiness for a larger group.

For the above reasons, utilitarianism is a useful augmentation to a social contract that ensures individual rights, and not sufficient as a moral or ethical system as of itself.

Transcendental Rights and a Posteriori Ratification

In recent times, philosophers have asked whether natural rights are transcendental. If you are unfamiliar with the doctrines, you might think that means it is somehow divinely inspired, or acquired by Zen meditation, or learned by watching swirling colors on a wall. While some do believe that too, philosophers are really referring to Kant's theory of transcendental knowledge.

Kant's Transcendental Knowledge

At about the same time as the Bill of Rights, Kant defined his distinction betweena priori anda posteriori truth. While these ideas were around a long time before, Kant provides the most detailed explanation of them.

  • If something isa priori true, it is true regardless without needing to test the proposition in any way. An example of a priori truth might be mathematics. For example: two plus two always equals four. There is no way that two plus two could equal anything else, regardless what one observes in the material world. Kant calls statements of such truth, in total,transcendental knowledge.
  • If something isa posteriori true, then its truth can only be known by examining or testing the material world. Kant calls statements of such truth, in total,empirical knowledge.

Kant's argument that mathematics isa priori is extremely complex, derived from his opinion that space and time would exist without human observation of them, just as freedom of the will would, also:

system of nature and of freedom, one leading with necessity to the other. — The ideality of space and time and the reality of the concept of freedom, the first leading inexorably and analytically to the second. According to the one, synthetic-theoretical cognition a priori; according to the other, synthetic-practical, likewise completely a priori. The nature of man cannot be determined a priori (to actions) without presupposing freedom. It is therefore necessary to assume something supersensible with respect to which the sensible can be considered determinable, and, conversely, something sensible a priori in accordance with which the supersensible determines sensibility in acts.
-Critique of Pure Reason, Immanuel Kant (Riga, Latvia. 1791 AD)

As well as mathematics, Kant argued the laws of space, time, and even free will are transcendental knowledge. Over time, the opinion of whether transcendental knowledge truly exists has very much divided people, in fact. To the naysayers, the mathematics occurs as a product of an observation, and they usually deny the existence of an independent domain of mind. For those who think there is a domain of mind, it seems impossible that numbers somehow exist attached to the material world. For example, suppose there are two sheep in a field, and one is asked to count sheep. How exactly are the sheep connected to make a number two, if not in one's own mind? Furthermore, if one is not counting external objects, but simply figuring out the result of a mathematical calculation, then what object in the material world does one examine or test in order to determine if the result is correct within one's own mind?

Kant's distinction between transcendental and empirical knowledge was made after Locke wrote the social contract and natural rights on which the United States was founded. However, since that time, many thinkers on natural rights have sought ways to state they are a priori true. While it might sound like Camusian absurdity at first, there is a rational reason to delve into the question. A properly defined social contract functions dynamically as a homeostatic system, that balances itself. When the citizens have too many rights, there is chaos, and more laws are necessary; when there are too many laws, there is rebellion, and more rights are necessary. When the rights and laws are perfectly balanced, there is peace and prosperity. Therefore, if one can find the definition of a system of natural rights and laws that maintains peace successfully, one could view it as anAbsolute Law, with absolute justification.

The first problem is, unlike mathematics, the elements of the natural law—the specific social contract that could maintain such a perfect equilibrium—are not as easily identified as counting fingers. The second problem is that not everyone believes that a priori truth exists at all. Merely hypothesizing such a system does nothing to persuade everyone that the resulting rights and laws should be followed, especially as most people still have a naïve opinion (and if they are cynics, they have at best an opinion likeGlaucon's). So there could be transcendental law, but one has to establish a reason why people who cannot imagine it should follow it. On the other hand, those with knowledge of natural-law theory will immediately recognize how people who strive to define a transcendental social contract are the most likely to define a better one, so there is no reason to discourage the effort.

Fichte's Relation of Rights

An example of these problems may be found in the superb thinkerJohann Fichte (1762-1814). Sometimes attributed as the inventor of Hegel'sthesis/antithesis/synthesis system, Fichte argues that self-consciousness requires resistance from exterior objects, but this resistance can only come from other rational beings, making consciousness a social phenomenon. Because of this, people are inevitably involved in relations with others that Fichte calls arelation of right. This relation relies on mutual recognition of rationality and consciousness by all. Each conscious agent retains asphere of liberty, in which they are free from outside forces. From that he derivesoriginal right, an imagined state in which a being exists only as a cause. To violate one's original right is to violate one's freedom and to commit coercion. To combat coercion, Fichte suggests taking away any incentive to commit crime whereby, whenever one attempts to commit a crime, the exact opposite of the criminal's intention will occur. He believes this can only occur in a commonwealth he describes.

So as mentioned, a number of skeptics have criticized Fichte's thought.Nance (2012) states that Fichte's statement that the condition of the possibility of our self-consciousness (that we must recognize and be recognized by others) possesses on normative necessity.McNulty (2016) states Fiche's argument turns on the apparently unconvincing claim that, in the context of transcendental philosophy, conceptions of the subject as an isolated individual give rise to a vicious circle the resolution of which requires the introduction of a second rational being to ‘summon’ the first. McNulty suggests instead that the problem of a circle is genuine and may be seen to result from a relation of mutual dependence between agency and cognition which ensures that for an exercise of either capacity to take place, an exercise of the other would have already had to have taken place with the result that neither can occur.

Hegel's Owl of Minerva

Strangely enough to note, those who are naïve cynics about social contracts (because they cannot choose one themselves) have even more problems with a posteriori verification. One would be naïve to believe, for example, that naïve cynics could be persuaded that the USA's social contract works because it has not failed. The reason this is strange is that empirical philosophy is much inclined to agree with that point of view. That is, if one understands Hegel's theory of dialectical materialism, one might reach the same conclusion as him:

"Philosophy, as the thought of the world, does not appear until reality has completed its formative process, and made itself ready. History thus corroborates the teaching of the conception that only in the maturity of reality does the ideal appear as counterpart to the real, apprehends the real world in its substance, and shapes it into an intellectual kingdom. When philosophy paints its grey in grey, one form of life has become old, and by means of grey it cannot be rejuvenated, but only known. The owl of Minerva takes its flight only when the shades of night are gathering."
Philosophy of Right, G.W.F. Hegel (Berlin, 1821)

That is to say, our ability to learn whether a social contract is false, a posterior, after the social contract fails. Otherwise its status is unknown. This places social contract in the same category as a scientific hypothesis. One can refine a model with tests on the theories it produces, but if no tests fail, the model is simply corroborated; it is not ultimately proven true.

On the other hand, if a model passes many tests, one has justification to call it auseful model, because predictability is high for its scenarios. In the scenarios where the United States has been involved so far, it has mostly been highly successful except in one field, and that is in war. The United States has only won one significant war with other nations (World War 2), and that was with massive assistance from other nations. Repeated attempts to replicate the success have failed, just as the theory of a homeostatic social contract predicts.

Legal Positivism

New developments in the 20th century have further enhanced our understanding of the social contract. The above discussion has described the natural law whence constitutional and legislative law in the United States is derived. From the perspective of an attorney in the business of exercising common law, natural law is in virtually all cases not something that the American lawyer could invoke in court.

Therefore, American attorneys have an internal need to believe that common law is complete unto itself, and other approaches to legal definitions are redundant. They feel bound, by the proclivity of their own profession, to deny that natural law is the source from which common law sprung, transcends common law in mind, and provides the ideal method by which mindful judgment is made. If such an admission to ideology is made, theUnited States Statutes at Large and theUnited States Code lose the notion of infallibility, as required for its effective prosecution on the uninformed. But now all 4,000 pages of the US Code itself, once so coveted in the necessary bookcase by the attorney's desk, is now free online (see references), and on Kindle for $19.99. So the doctrine of legal infallibility is facing increasing skepticism from a better informed public, who despite their inability to understand the derivation of law from higher principles, is increasingly proficient at finding specific sentences to their advantage with Google.

Even exacerbated by the general access to once inaccessible rules, the fashion in America is now to imagine that common law is self sufficient unto itself. Nothing which has not been stated in the chapter and section is pertinent. Only the written law defines that which is right and wrong.

Wittgenstein and Sociolinguistics

This perspective has an eclectic history. In the late 19th century, philosophers no longer had reason to trust thePlatonic idea of form, led by criticisms ofBertrand Russell (1872-1970),Alfred Whitehead (1861-1947), andG.E. Moore (1873-1958). Whitehead and Russell'sPrincipia Mathematica (1903) made a logical assault, based on problems with how imaginary entities such as Santa Claus and unicorns could have ideal forms. In parallel, Moore'sPrincipia Ethica usedHume's guillotine to undermine the idea of goodness as a pure idea, as just like unicorns, the concept of goodness requires a human mind to make it. Neither unicorns, nor ethical ideas, can exist in any material or physical sense without imagination. Russell and Moore therefore postulated thedescriptivist theory of naming, which holds that the semantic content of a proposition is defined by, and identical with, the descriptions associated with the proposition by a speaker. While that may seem obscure to the neophyte, it naturally led to a revolution in metaphysics against some traditional concepts ofnecessary truth. In the past, it had almost always been believed that ideas precede language; but now it seemed that language and ideas were more intimately interwoven.

One thinker,Ludwig Wittgenstein (1889-1951) turned the world on its head by suggesting that language actually creates thought, in a landmark book "Tractatus Logico-Philosophicus" (1922). This school of thought,Logical Positivism, argues that all discourse is either logically resolvable to truth/falsehood, or otherwise, merely nonsense, caused by confusions in our ability to rationalize the world. From this perspective, language actuallyexceeds our ability to think, and the nature of our thought processes defines how much language we are capable of using with meaning. Two linguists,Edward Sapir (1884-1939) andBenjamin Lee Whorf (1897–1941) applied this idea to sociopolitical problems, considering how words such as 'liberty' might not only precede our ability to imagine the state, but even define the experience, which we do not know until we learn them:

As soon as the word is at hand, we instinctively feel, with something of a sigh of relief, that the concept is ours for the handling. Not until we own the symbol do we feel that we hold a key to the immediate knowledge or understanding of the concept. Would we be so ready to die for “liberty,” to struggle for “ideals,” if the words themselves were not ringing within us? And the word, as we know, is not only a key; it may also be a fetter.
-Language, Edward Sapir (1921)

Whorf [1950] extended these ideas even further, to consider that our language even constrains how we are capable of conceiving time and space. He observed how some native Americans, from the Hop tribes, have trouble reporting to work for 8 hours starting at 8.30am, or whatever; and they were always getting in trouble for it. On studying their language, Whorf discovered that the Hopi language has no concept of fixed increments in time, and only has three verb tenses: one for memories of the far past (which may be incorrect), one for immediate sense experience (which is known true), and one for all events in the future, as well as emotions (which are in essence hypothetical). Whorf then suggested that Indians cannot understand clocks, because their language does not permit it.

There followed extensive debate about whether children in some cultures do not do so well in school tests because their language dialect differs, particularly with reference to African-American dialects in Chicago. For example, in European language, a double negative follows logic to negate itself, creating a positive. But in African languages, a double negative emphasizes the negation (for example, "I sure don't understand nothing"). Sapir suggested that African Americans therefore have a built-iin disadvantage in American schools, because their language is contrary to that thought logical by Europeans. He was the first to suggest that different cultures should be gauged by different skills, such as spatial relationships and music, instead of English and Mathematics.

Scientific observations corroborated the early Wittgensteinian theory that language limits thought, as per the 'Sapir Whorf' hypothesis. But it encountered political objections that the theory was racist and discriminatory. So despite their success in demonstrating the usefulness of the method, the results took a long time to be accepted. In 1982, the radical sociolinguistPierre Bourdieu (1930-2002) criticized that academic political-correctness with cynicism and Nietzchesqian vigor:

The specialized languages that schools of specialists produce and reproduce through the systematic alteration of the common language are, as with all discourses, the product of a compromise between an expressive interest and a censorship constituted by the very structure of the field in which the discourse is produced and circulates...These strategies tend to guarantee the satisfaction of the expressive interest...within the limits of the structure of opportunities for material or symbolic profit which the different forms of discourse can procure for different producers according to their position in the field.
-Language and Symbolic Power, Pierre Bourdieu (Blackwell, 1977-1984)

Ronald Wardaugh [1986] developed Bourdieu's dialectic for American schools in less dialectical language:

We must recognize that ‘power’ plays a significant role in everything that happens. Some forces in society are stronger than others and produce real effects, among them linguistic effects that have consequences for the lives we live. Bourdieu (1991) conceives of languages as symbolic marketplaces in which some people have more control of the goods than others because certain languages or varieties have been endowed with more symbolic power than others and have therefore been given a greater value, e.g., standard languages, certain accents, a particular gendered style of speaking, a specific type of discourse.
-An Introduction to Sociolinguistics, Ronald Wardhaugh (1986-2006)

Subsequently, in the 1990s, schools started to accept that different languages do lead to significantly different skills. Ideas ofIsaiah Berlin (1909-1997) onpolitical pluralism started to gain traction [1999]. Enabling minority languages to gain more power in a pluralistic society has the goal of combining the separate skill sets of each culture to optimum effect, but is often rather viewed as decreasing overall liberty in order to raise the lowest common denominator. The new direction--multiculturalism--is raising the lowest common denominator. Is each culture contributing new peaks, or is instead, the average contribution declining overall? Some speculate that Trump's success is because individuals who were once too oppressed by society to speak at all are suddenly finding they have a valid voice...but for some reason, this oppressed group is now poor white males. Has the movement to pluralism gone too far? While the political debate continues on the results of diversification and pluralistic values, linguists are continuing research on variants on the Sapir-Whorf hypothesis, which to garner political correctness and escape prior criticisms of racism, is now called linguistic relativity. For example,Wolff and Holmes (2010) surveyed several decades of research, examining the hypothesis in contrast to each other, with a resulting favor to regard language asinducing ideas.

Hart's Minimal Rights

Yet even while the debate on increasing cultural and political pluralism continues, the same ideas have caused exactly the opposite movement in interpreting law. If language constrains thought, then according to the legal profession, the best course forward is to define language rigorously, so that it constrains thought in exactly the desired manner. Some contemporary legal philosophers, particularlyHerbert Hart (1907-1992) have therefore defined the idea ofLegal Positivism. If some concept of law cannot exist in ideal Platonic form, then, Hart argues the entire idea of Jefferson's natural rights is Wittgensteinian nonsense. Hart states there is no such thing as natural law except that which can be directly defined as that required for basic survival. Specifically, inThe Concept of Law [Hart, 1961], he states three propositions:

  1. Law is a mechanism for regulating the behavior of individuals in a social association. Therefore, it must have a certain basic, minimal content in order that the association be viable.
  2. For the association to be viable, the survival and continued existence of at least some of its members must be ensured.
  3. The minimum legal content which ensures such survival is as much as natural law can be.

By this definition, the constitution itself simply becomes another form of legislative precedence, without any derivation from conceptualized ideals. Attempts to define abstract derivation of law from metaphysical principles are doomed to failure, in the same way as any metaphysics is doomed to become nonsense from the perspective of early Wittgensteinian thought (Tractatus Logico-Philosophicus, L. Wittgenstein, 1922).

Ronald Dworkin took an aggressive counter-stance to Hare, arguing that the American concept of natural rights provides individual rights against the state, existing outside of written law and preceding the interest of the majority. But in his later life, Dworkin also became amilitant atheist, and in his bookReligion without God (2013) argues that religion is stupidity inspired by the awe ofProclus, although Dworkin himself incorrectly attributes the view to Einstein (Einstein was actually Christian). As such, Dworkin really established a new middle school between Hart and more conventional ideas.

The standard counter position is as follows. Legal positivism is useful in clarification of concepts, and it helps resolve some problems with ethical meaningfulness, such as caused byHume's guillotine (and now by Moore's new statement of it, calledThe Naturalistic Fallacy. By separating out ideals and ethics, it allows clear statement of rules without ambiguities as to what is good or bad. But there is a remaining problem for the legal positivists, even while they make great contributions to society in providing an extensive and clar codification of the consequences of wrongful action. The denial of transcendental understanding (whether through raw intuition, or through matured insights gained from internalized reason) removes the basis of authority on which the United States declared itself a nation, and does not provide solution on paradoxes in interpretation. As a result, it returns to the same paradoxical states of conflicting directives as for intuitive ideas ofself-evident truth, just without the emotional or moral content.

The codification attempts to circumvent the problem by stating the authority derives from 'the people' a la Rousseau, running again into the same problems of defining minority rights. Also, legal positivism still cannot derive the moral right of an oligarchy to define an entirely new constitution without precedence, because codification can only rely on prior code for new definition.

The Brightest Light

Logicians have continued to work on Russell's theory to cast new perspectives on how ideas are made. Saul Kripke [1963] suggested that we form clusters of properties that we attach to a name, idea, object, or event by an act of 'dubbing.' The cluster can vary from one person to another. The shared cluster properties between different speakers enable communication. If we follow well-ordered patterns in how we dub objects and events, then we can form constructive models to explain and predict the future, which gives rise to science. But on the other hand, i8n the act of dubbing, we limit our ability to conceive and understand that which actually exists. Those acting on intuition, without pre-existing formed ideas to restrict thought, can conceive new relationships that were not possible with prior language--even if the actual words are ths same as those by others, they are attached to different, new ideas. In politics, that creates theparadigm shifts, such as by Martin Luther King, discussed as an advantage of permittingself-evident truth at the very beginning of part two of this series [Kuhn, 1962].

One of the main problems with codification is that it does not allow this evolving definition of ideas in any way whatsoever. In order to maintain consistency, ideas of 'right' and 'wrong' are fixed by precedent. All that is permitted is modification of the evaluation for new conditions. This is contrary to the idea that Locke tried to establish. For Locke, the real issue purely lies in the definition of that which consists codification of reasonable law, and with the evolution of society, to assure that unreasonable laws can be removed, as well as new laws made; for to him, laws of all forms exist neither to protect us, nor to govern us, nor to restrict us, but only to free us for betterment of ourselves. Locke was not concerned with codification of rights, nor enforcement of law, but rather the sensibility and, so often forgotten, the first and fundamental premise: that the purpose of civilization is not to benefit ourselves, but to free us to act for the greater good, that we may better be judged in the afterlife.

That was the burning force which the framers captured in the heart of this nation, in its brightest light making us strong and prosperous. Yet in a fading twilight of doubt and scorn, we are falling into the fear and anger, which the design for our society only strove to eliminate. The solution is not more cynicism and hostility, but to rekindle the torch that made us great.

Atheistic Social Contracts

Defining Terms

Objectivism (popularized by Ayn Rand) andMilitant Atheism (spearheaded by Richard Dawkins and Ronald Dworkin) both define social contracts which assume that the Darwinian concept ofSurvival of the fittest is necessarily true. Therefore, they believe that the driving force of politics is game theory. As a bizarre consequence, both doctrines hold that learning any other theory is simply admitting defeat, and that studying the philosophical history of the social contract besides their own is not only futile but stupid.

Anarchists and libertarians, in particular, refuse to believe that America's social contract entitles the nation to impose any restrictions on rights at all, especially because it based on the existence of God. By apparent coincidence, almost all anarchists and libertarians are atheists. Also, objectivists and game theorists create their own social contracts, with no explanation as to how they passHume's Guillotine, as stated before.

For example, here is a diagrammatic representation of modernobjectivist theory, as inspired byAyn Rand. Objectivism states that the purpose of life is no more than a Darwinian conflict, and morals are defined by that necessary for survival of the fittest. This is meant to create aminimal social contract as preferred by libertarians, who also call on the legal positivism of Hart in their case.

Rand's Objectivism defines a Minimal Social Contract via Darwinism
Rand's Objectivism defines a Minimal Social Contract via Darwinism

Nonetheless, as previously indicated in part two of this series, all that objectvism does is define 'Darwinian contest' as a value system, and thus objectivism still failsHume's guillotine. Rand supporters will argue until they are blue in the face that 'survival of the fittest' is not a moral value, but simply a manifestation of physical world in which we live. No matter how much they argue, Rand supporters are still stating that Darwinism should define what we ought to do. Some people simply do not agree, for example, that handicapped people would best be euthanized, rather than letting them place an unnecessary drain on the world's resources. Until any such time when all of us are so dehumanized as objectivism states we should be, it remains just another value system enhancing the pluralistic values of our society.

Since starting this project, dozens have engaged me in extensive arguments that I should remove theism from Locke's social contract. I try pointing out that it is Locke's social contract, not mine, in which case I am repeatedly accused of committing anAd Hominem fallacy:

Ad hominem (Latin for "to the man" or "to the person"), short for argumentum ad hominem, is a logical fallacy in which an argument is rebutted by attacking the character, motive, or other attribute of the person making the argument, or persons associated with the argument, rather than attacking the substance of the argument itself.
- Wikipedia

From which I conclude, it is they who are making an ad hominem fallacy, not me. Notwithstanding, what I think they mean is that it is possible to define a social contract which does not require God, and in their opinion, that is what the USA should do.

In the past there have been repeated efforts to remove God from all legal documents. And there have been victories for that cause. In courts, for example, one no longer has to take an oath under God to tell the truth. In that specific case, the courts can find constitutional justification, as the constitutional rights already grant freedom in personal religious belief. However in the case of natural rights, it is not so simple to remove God from the social contract, because ALL Constitutional and common law is based on Jefferson's social contract.

One might bear in mind that adding the slave population to the American social contract caused a lengthy and very bloody civil war. While adding women was less difficult, because most adult women were already part of wage-earning households at the time, a major depression did result. The Alcohol prohibition caused an immense increase in crime, and had to be revoked. All of those modifications were relatively simple additions of participants, or in the case of alcohol, removing a liberty. Changes to the premise of Jefferson's social contract would invalidate the right to pursue of happiness, and all property, social security, health, and education laws would need to be revised, The extent of the change would be so deep, one would basically have to discard all American law altogether and start from scratch. Considering the current consumerism attitudes, it is impossible to imagine how it could be accomplished.

Of course, Libertarians don't care, as long as it's someone else figuring out what to do; and anarchists don't want any law anyway; so that fact does nothing to change their view, despite its apparent sociopathy.

On the other hand, there are atheistic social contracts, most notably the socialist contracts of Engels, Lenin, and Mao, which are all based on Marx's theory of dialectical materialism. I have yet to figure out how to describe them succinctly, but when I do, I shall share them.

Also, there is the minimal state utopia defined by Nozick, which is an ideal (like Aristotelian ideals, not practical in any real-world situation), and no one has defined a practical minimal state based on Nozick's theories. As Nozick is now regarded as a Libertarian, and Libertarianism has gained many more followers in the last 50 years, maybe that will change.

The Best Libertarian Theory Ever Written. Did it Mention it is also Utopian.
The Best Libertarian Theory Ever Written. Did it Mention it is also Utopian.

Roosevelt's Universal Human Rights

Defining Terms

Human Rights differ fromNatural Rights in that the rights are defined by consensual agreement, regardless of basis. Some in the consensus may agree due to their beliefs in natural rights; and natural-rights theory can assist in the formulation of rights which are agreed upon; but nonetheless, the existence of natural rights, or not, does not dictate the results of the consensus.

If one were to name one person who has done the most to bring about world peace, one could not do much better than to name Eleanor Roosevelt (1884-1962). President Harry Truman himself called her the 'First Lady of the World' when he appointed Eleanor as a delegate to the United Nations General Assembly. In April 1946, she became the first chairperson of the preliminary United Nations Commission on Human Rights. Along with René Cassin, John Peters Humphrey and others, she drafted theUniversal Declaration of Human Rights, calling it "the international Magna Carta of all men everywhere." The Declaration was adopted by the General Assembly on December 10, 1948. The vote was unanimous, with eight abstentions (six Soviet Bloc countries, South Africa, and Saudi Arabia abstained, attributed to Article 13, which provided the right of citizens to leave their countries). The Declaration consists of thirty articles which have been elaborated in subsequent international treaties, economic transfers, regional human rights instruments, national constitutions, and other laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966, the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights. In 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill has become an international law, to be followed by all.

UHDR Structure

After the various travesties of the past causing understandable horror, the United Nations declaration is a manifestation of unified political motivation, rather than defined by philosophy. In particular, divisions between various theistic and atheistic premises prevents the declaration from specifying any particular grounds beyond those most general, pertaining to the human condition. The extent of the formulation is therefore impressive.

Mostly drafted by Humphrey, Cassin was subsequently responsible for its organization. He compared the Declaration to the portico of a Greek temple, with a foundation, steps, four columns, and a pediment:

  • Foundation - Articles 1 and 2 are the foundation blocks, with their principles of dignity, liberty, equality, and brotherhood.
  • Steps - The seven paragraphs of the preamble—setting out the reasons for the Declaration—represent the steps.
  • First Column - Articles 3~11 constitutes rights of the individual such as the right to life and the prohibition of slavery. Articles 6 through 11 refer to the fundamental legality of human rights with specific remedies cited for their defense when violated.
  • Second Column - Articles 12–17 constitute the rights of the individual in civil and political society (including such things as freedom of movement).
  • Third Column - Articles 18–21 are concerned with spiritual, public, and political freedoms such as freedom of association, thought, conscience, and religion.
  • Fourth column - Articles 22–27 set out social, economic, and cultural rights.
  • Pediment - The last three articles of the Declaration provide the pediment which binds the structure together. These articles are concerned with the duty of the individual to society and the prohibition of use of rights in contravention of the purposes of the United Nations Organization.

Teleological, Post-Hoc, and Cum-Hoc Fallacies

The UHDR is a codification of agreed values across the international community regardless of their basis, and therefore philosophical explanations suffer from two kinds of fallacy:

  • Teleological Fallacies exist in propositions where the desired end result is used to construct the premises, and the premises are actually only stated because the conclusion is desired. For example: God is good, and life is good, therefore God exists.
  • Post hoc ergo propter hoc is alogical fallacy of the questionable cause variety that states "Since event Y followed event X, event Y must have been caused by event X." It is often shortened to simplypost-hoc fallacy. The fallacy lies in arriving at a conclusion based solely on the order of events, rather than taking into account other factors that might rule out the connection. For example, "The rooster crows immediately before sunrise; therefore the rooster causes the sun to rise."
  • Cum hoc ergo propter hoc refers to fallacies where correlation does not need to imply causation. There are three forms ofcum-hoc fallacy:bidirectional (A causes B, and B also causes A, resulting in cyclic irresolution);indirect (A causes C which causes B, therefore A causes B); andCoincidental (there is no causal connection between A and B at all)

At the first order, most formulations of philosophical rationality for UHDR are susceptible to criticism as coincidentalcum-hoc fallacies, including those of John Rawls (1971) and Alan Gewirth (1982, 1996). In order to defeat the criticisms, the political philosophy needs to make assumptions as totranscendental knowledge which applies to how every one agreed upon the particular rights that they did, regardless whether they knew they were doing so because of some higher-order,a priori truth. If there is such transcendental knowledge, then it has not yet been defined in a way that could let people know if they are making wrong decisions, because some clauses of universal human rights remain in dispute...including even in the United States, teleological justifications for one of the most abhorrently inhumane abuses of authority: torture.

However, this is not to say that Rawls and Gewirth's own theories are without merit. It is merely that they cannot be applied to the consensual United Nations contract.

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