Because Franklin decided to call Jefferson's idea of natural rights 'self evident,' many people believe they understand them perfectly. However, Jefferson based his conclusions about natural rights on empirical theory, not intuition. This topic describes how Jefferson's implementation of positive law provides definitive and immutable answers to basic issues on the extent of Federal and State authority, including solutions to many problematic conflicts that have since been politicized in the USA. The article draws the conclusion that mandatory education in positive law would reverse recent declines in peace and power
1. Natural Rights as Positive Law
- Empirical, not Transcendental - In preface, I am required to clarify that USA's natural rights are not claimed to exist in some absolute sense, independent of human existence. That is a frequent confusion with thetranscendental theory of human rights. In any theory of rights, they are deduced as immutable from different premises, and the premises are based on different metaphysics. Jeffersonian natural rights areempirically derived--they are directly deduced from observation of how our existence actually is. So they are immutable, but not transcendental.
- The Negative Social Contract - The basis of modern natural rights is an imagined social contract, first described by Hobbes in his bookLeviathan (1668). Hobbes' premise was that people are fundamentally evil. The social contract therefore provides authority to government, so people do not live in perpetual fear of murder, rape, theft, etc. Because people cannot be trusted to act in the interests of society, Hobbes concluded that government must be an authoritarian system, to enforce punitive laws, with order maintained byHobbesian Fear.
- The Positive Social Contract - Locke improved on Hobbes’ negativity by starting with the premise that people are fundamentally good. Locke explored how this enables a democratic republic in hisTreatises on Government (1690). That is quite well known. Due to objections with the premise, it is almost entirely unknown that Locke detailed thenatural rights which Jefferson chose for USA’s social contract in a different place:, in hisEssay Concerning Human Understanding, Book II: Chapter XXI: “Of the Idea of Power" (1691). This rights theory requires the existence of a benign judging God as premise, so Jefferson clearly stated that the rights are according to the ‘laws of natureand God’ in theDeclaration of Independence (1776).
The theistic premise has become increasingly unpopular, unlike the Lockean statement that rights must be universal. Such 'inalienability' is particularly important for theright to pursue happiness to work as intended, rather than as most people consider it, as follows:
If everyone can pursue happiness, Locke reasoned,
thenmore can act for the greater good,
resulting in betterment of society.
That ispositive law's objective.
It's not so much positive law
because rights are entitlements, rather than restrictions.
It's rather because its purpose
is to enable good.
Is that not an astounding fact, all the more astounding that so few know it? And even more remarkable, perhaps, is how it is no idle speculation, but a direct derivation from observation of thehuman condition. Jefferson's choice of all three natural rights is shown to derive from the empirical deductions in Locke'sEssay Concerning Human Understanding as follows, which thrills with the language of our nation. Here I can only briefly summarize:
- We are all created equal in the eyes of God. The purpose of creation is that God may grant us eternal life, to which we strive in all the best of our efforts, and thus we are fundamentally good. In God's eyes, there is no need for equality in the property we inherit, or the physical gifts we are given, because it is what we do with what we have that really matters. So the purpose of equality is that we all be able to do good, and thus please the Creator.
- This objective became necessary to Jefferson's premise, because otherwise there is no justification for what the governmentought to do, causing the theory to fail Hume's guillotine.Hume's Guillotine, published after Locke's work in Hume'sA Treatise of Human Nature, Book III, Part I, Section I (1739), is an observation on the significant gap between 'positive statements' (about whatis) and 'prescriptive statements' (about whatought to be). Some moral or ethicalvalue is required, as anormative, to bridge the gap between the positive (empirically verifiable state) and prescriptive (moral or ethical statements about how weshould act).
- We have physical needs, because otherwise, we would be unmoving like rocks and stones. So God in His infinite wisdom created our need for food and drink. The need for sustenance creates a restlessness of the soul, whence springs continual desire, motivating us to act. Therefore Jefferson chose life as a natural right, that we may exercise our active power in response to our desires.
- For each person the desires are different. Therefore Jefferson chose liberty as a natural right, that each of us may seek that which satisfies us. In that way we find pleasure and happiness in life.
- We are able to suspend physical desire. When we are not seeking to satisfy our direct needs, we are able to suspend desire, and be free to act for the benefit of the greater good. If we are assured of liberty, some will choose to act in ways that benefit others. While we may find a simple pleasure in hedonism, acting for the greater good is rewarded with a more solid, permanent, and eternal happiness. This results in the eradication of fear and enables the improvement of society in ways that would not otherwise be possible. Hence Jefferson chose pursuit of happiness as a natural right.
Weall must have all three rights. But without life, there can be no liberty, and without liberty there can be no pursuit of happiness. That logically results in the three enumerated hierarchical rights, in order of precedence:
- Life: right to water, food, shelter, and family.
- Liberty: freedom of choice in possessions, speech, religion, sexual orientation, marriage, and political view.
- Pursuit of happiness: right to acquire property, career, work contracts, recreation, and the arts.
A full description of the grounds for these rights is ~30,000 words. Franklin therefore changed Jefferson's declaration of natural rights as being "sacred and undeniable" to "self evident," because not everyone at the time of this nation's founding could learn the full theory, and yet the theory's result is intuitively understandable.
We can be glad that its results included public education, now enabling usall to understand positive law, when in prior times even the possibility of its universal comprehension was totally unobtainable. Even at the time of its formation, however, deductions from natural-law theory were still controversial, mainly because so few of the founding fathers had actually read Locke at all. It is generally not considered how Madison's laterBill of Rights (1791) was assembled by someone without education in Locke's philosophy, but who was instead an ex-solider who taught himself enough law to pass the bar. Madison was a brilliant and industrious man, but it is certainly fair to state he was so overworked by the needs of the revolution, he was never fully able to recover from being yanked out of school at a premature age by the need to win a war. If that were more considered, it is reasonable to deduce that many social, legal, political, and military antagonisms now permeating our culture could dissipate into empathy. Many controversies could be replaced by a shared interest in maximizing all natural rights, thus enabling all society to improve all the more–As I start to further explore in this topic's concluding section.
1.1. On the Theistic Premise, and Other Contentions
I am required to add this supplement to all topics I share on this subject, because several hundred people have already written me various arguments against Jefferson’s choice of Lockean natural law. Most frequently I am sent torrid objections to the required premise that a benign judging God exists. In brief, therefore, I must make these three points:
Therefore, as so declared in the Declaration of Independence, the Lockean natural rights provide the source of legitimacy for USA's government. The founders were very thorough in making the statement accurate yet succinct. The changes were:
"We hold these truths to be
Note that there wereno changes to Jefferson's choice of the three rights themselves, despite many other changes, except for truncatingthe preservation of life intolife, because it was thought the additional qualifier 'preservation' was superfluous at the time. More recently, with respect to capital punishment and abortion, the additional word 'preservation' would have provided more clarity as to the implication of the 'state of nature' on these rights (as briefly discussed later).
You are of course provided with the freedom to disagree with Jeffersonian theory, under the rights his theory provides you. Nonetheless, I am obligated to reiterate in rather blunt in response: the consequence of denying the validity of this theory is to undermine the validity of the USA as a nation itself, making it no more than a rogue state which deserves to be eradicated, just as those such as terrorists claim. That is the reality in which we live–Over which we have no choice, and upon which our personal opinions as to the theory's qualities are rather irrelevant. Fortunately for us, this nation's previous growth and success have empirically demonstrated that Jefferson did establish a very good theory of natural rights, and we may enjoy additional benefits from the right to pursue happiness, such as public education, parks, libraries, radio, TV, and art.
2. Practical Applications
Many people find the theory of Jefferson's natural rights too abstract, and ask questions about how it works. This section provides a few entertaining examples of how natural law provides answers to social conflicts in the USA, before addressing more problematic issues.
2.1. Simple Examples
In practical applications, the correct approach is not "what rights do I have which the government may not take away?" That would be viewing rights as entitlements. The correct question is: "what authority must the government have to maximize everyone's rights?" That results in the greatest amount of life, liberty, and pursuit of happiness; and hence the greatest prosperity and well being of all.
- Right to Life. The most frequently cited example these days is water rights, starting from a golden era of plenty. People divide labor and specialize, to create a better life for all as first described by Socrates. One person decides to farm fish and buys all the lakes. But then there is a drought. The wrong way to approach this problem is for the person who now owns all the water to ask: "why should I sell my water for less than the maximum profit I can get?" The correct question is: “How much authority does the government have to limit the price which it pays the lake owner so that everyone can have water?”
In this case, the answer according to natural law is, quite a bit of authority, because water is essential to life. Life takes precedence over liberty and pursuit of happiness, and only the lake owner has water, so the lake owner, in the interest of the greater good, has to provide the water. However, the government cannot deprive the lake owner himself of the ability to run a fish farm, as according to his own desires and chosen life pursuit. Therefore, the equation is very straightforward. The government pays sufficient money for the lake owner to rebuild his fish farm to the same condition as it would have been without a drought, and takes all the water needed to ensure that no one suffers from thirst.
- Right to Liberty. Now suppose the fish farm owner, with his restored business, decides to raise prices on fish, and for this example, let’s assume there is no other place to obtain fish. Again, food is required for life, but unlike with water, people can eat other things. Thus the government cannot justify price regulation on basis of right to life. But the government does have the authority under the second natural right, that to liberty; for each person, having different desires, cannot find them equally satisfied if one person controls access to a commodity. Therefore the government has the right to prevent monopolization of markets, to ensure price competition.
- Right to Pursue Happiness. Natural rights also give the government authority to collect taxes for education, so that children are free to pursue happiness in their preferred career. Now let's suppose there is a manufacturer of soccerballs, and there is a shortage of materials to make them. The pursuit of happiness is a lower priority than life and liberty, but it still exists. If many children are playing soccer at schools, the government can legitimately have the authority, under natural rights, to raise some taxes in order to pay for the increased cost of materials to make soccerballs. But as the absence of soccer balls only limits children's' pursuit of happiness to a limited extent, the amount of taxes which the government can collect is proportionally much less.
So that is the first straightforward example of how natural law works in real-world situations; it is a system of hierarchically arranged needs of the society to prosper. It was the beauty of this argument that led me to choose the slug for my blog site: "Yofiel–Beauty in Progress," because Yofiel is the archangel of beauty.
2.2. Utilitarian Practicalities to Maximize Happiness
After the USA declared independence, John Stuart Mill formulated new theories ofutilitarianism (1863), based on earlier work byJeremy Bentham (1781). These theories on maximizing happiness provided the following main additions to USA's social contract:
- Punishment Proportional to Crime. In order to maximize happiness of a society, people who break its laws should only be punished as much as the reduction to life, liberty, and the pursuit of happiness that they cause to others.
- Rule-Utilitarian Restrictions. In some cases, a small restriction in liberty can result in greater happiness for all. For example, requiring people driving in opposite directions to say on separate sides of a road allows them to reach their destinations more safely and quickly. The same argument extends to speed limits and other cooperative rules.
- Act-Utilitarian Liberties. In some cases, rules may be broken without reducing safety or total liberty. For example, if a road is totally empty, it is safe to walk across the road while not at a pedestrian crossing, or to drive somewhat over the speed limit. This gives rise to the concept ofsoft law.
2.3. Federalism, Constitutional Law, and Common Law
There remain cases when there is no single interpretation of how to handle a problem from natural law alone. Therefore, the USA introduced the concept offederalism. As originally conceived, the federal government should only enforce natural rights when the application to a practical situation is unambiguous. In those cases where more than one conclusion could be reached, the federal government should delegate the authority to the States. The reasoning was that each State could then choose a different interpretation of the authority it is entitled to exercise. People would then be able to live in the State with the rules most commensurate with their own opinions, resulting in further maximization of life, liberty and happiness.
As originally conceived, constitutional law defined the structure of authority and formalized abstract conclusions from natural law. From that, common law aggregated prior decisions, so that legislation could build up consistently and fairly.The authority of constitutional law promulgates from natural law, and the authority of common law promulgates from constitutional law. If common law is passed that is contrary to constitutional law, it is changed by appeal to a higher court. Similarly, if constitutional law is contrary to Jeffersonian natural law, then at least theoretically, the Supreme Court changes it by interpreting theIntent of the Founding Fathers.
The origin for the concept of promulgation is very old, and it is rather difficult to find non-evangelical texts on it, most of which claim it derives from Aquinas. However there seems reasonable evidence that Aquinas himself was not directly inspired by God on this subject, but, somewhat ironically in this modern era of Muslim/Christian hostility, by a Moor named Averroes. For more discussion, please see "Divergence of Divine and Natural Law" on this site, which I am embarrassed to say has been widely stated as being one of the few articles, and possibly the only article of its kind, on the open Internet.
3. Social Decay and Rousseau's Will of the People
3.1. The Breakdown of Promulgation
Originally, promulgation from natural law was intended to stop lawyers from dominating lawmakers, but that intent has irrefutably failed. One could go a very long way into exploring rampant legal justifications for the breakdown of promulgation (see for example "The Jurisprudence of Thomas Jefferson," L. K. Caldwell, Spring 1943). The point here is instead simply to consider how both policy makers and philosophers are both now hopelessly outnumbered by attorneys, such that Hart's legal positivism ("Concept of Law," 1961) has become almost biblical in irrefutability, especially as it is rather unavoidably founded on the conceit that law is right because it says so, and thus needs to provide no further grounds for itself:
Chief Justice Burger might well have been rightly concerned that a search for litigious revenge replace the search for truth and the greater good. However his reactions only caused antagonism throughout the legal system, so we really do have to look elsewhere for a remedy.
There have been other major changes in the USA's cultural demographics in the last century. In particular, a widespread adoption of atheistic beliefs led people not to seek the greater good, requiring the government to enforce more entitlements. The main example is social security. When the USA was founded, it was assumed that the rich would want to take care of the poor, so there was no need for extensive social programs. Similarly, it was assumed that children would want to look after their parents in old age. But with the increased amount of atheistic selfishness in the last century, the rich simply seek to be richer, and children do not support elderly relatives. So in the 1930s, Roosevelt introduced the New Deal, adding entitlement taxes such as social security to protect the poor and elderly.
With the decay in altruism, the Lockean social contract has also been increasingly replaced by Rousseau's, who presents an alternate method of rights derivation in his eminent work "The Social Contract" (1762). To Rousseau, the social contract is not derived empirically from the human condition, but rather by the "Will of the People," which in practical terms results in a Darwinian race to the survival of the fittest, as the rich manipulate the choices of the less educated to make themselves richer. Also, in a democracy, political parties continually attempt to corrupt natural rights, in order to favor a particular political group.
Without the altruism on which Jefferson based his theory, Darwinian evolution to the ever richer and ever smaller minority has increasingly supplanted the benign society defined by Locke, so much so, in fact, that most people are totally unaware of Jeffersonian positive-rights theory at all. Instead, most people now think of rights as individual entitlements that are ultimately under control by the majority party's influence on the Supreme Court. In fact, however, the Supreme Court has only responded to the almost total absence of knowledge on the empirical derivation of natural law, and so has looked away from Jefferson to the less educated founding fathers when seeking grounds for its opinions–Needing to pursue Rousseau's model in the interests of avoiding revolution. This has notably influenced opinions on the next section's issues.
3.2. Abortion, Self Defense, Capital Punishment, and War
That brings us to the difficult choices facing the modern world, paramount where there are political conflicts between conservatives and liberals on the right to life and the right to kill.
- Republicans hold we are created innocent, but through our choices lose the rights to which that innocence entitles us. Therefore, abortion should not be allowed, because the unborn child has committed no crime. HOWEVER, after severe enough crimes, the right to life is lost, so Republicans hold that capital punishment should be permitted. Similarly, a criminal aggressor loses protection under rights to life, and so Republicans support lethal self defense and proactive war.
- Democrats hold our primary right is to make choices about our own physical bodies. Therefore, we have a right to choose abortion; but if a person kills another, life cannot be taken away. Similarly to the latter case, democrats believe that no person should be able to kill another in self defense and do not support proactive war in principle.
- Libertarians hold that individual freedom takes the greatest priority in all situations. Therefore, we should have a right to choose abortion; AND we should be able to kill another in self defense. On the issue of capital punishment, Libertarians have less of a clear resolution, but their answer is usually economic: whatever results in less taxes is the preferred answer in most cases. With regards to the largest federal discretionary expense, national defense, most Libertarians now believe there should be more war, but some believe that would not improve the economy, and therefore war is wrong.
But from natural-rights theory, the answer is clearly opposed to all these political parties:
- Abortion: The Jeffersonian contract is based on the laws of nature. If there are no untoward natural problems, a pregnant mother will always give birth to a baby, because that is how nature works. Our rights are set by the laws of nature and God, and as the laws of nature are that a pregnant woman will give birth if there are no untoward problems, no one should have the right to end a life that, under the laws of nature, will start when the baby is born. Hence there is no situation where the government should permit the pregnant mother to kill an as-yet unborn baby. In this case, though, there are some additional problems. For example, there are situations where a pregnancy goes so wrong that only one of either the mother or baby can survive. That cannot be resolved by natural law, and so it is a case where the legal decision as to what should happen should be delegated to the States.
- Capital Punishment and Lethal Self Defense: All people have equal rights, and everyone has a primary right to life. As Jeffersonian theory holds we are in the domain of a benign judging God as premise,the government should seek to preserve all human life as far as possible, until its natural end, in order that the Creator's beneficence have the most opportunity to reach all people in His creation. Therefore, there is never any situation where a government has authority to kill its subjects. Hence, there is no justification under natural-law theory for capital punishment. Similarly, there is no situation where the government can permit one citizen to kill another intentionally. So by natural-law theory, self defense is justified, but only if it is non-lethal.
- War: The right to life definitely provides the USA with the right to declare war on another nation if the other nation is engaged in genocide or mass slaughter. Unfortunately, whenever the USA has proactively engaged in military intervention, it has not ever been able to cause less civilian death, and instead manages to kill far more civilians than the government it attacks. So empirically, there has been no clear evidence that such military intervention is actually effective. The USA definitely has the right to defend the life of those paying taxes against military attacks initiated by other nations (it should be rather irrelevant whether the residents are officially citizens, but that is another topic).
There are complications, but they are beyond the scope of what can be discussed in this already long topic. I would rather conclude here by indicating the best apparent solution.
4. Reversing the Decline
By seeking a positive affect on the Will of the People, we can change the way that the Supreme Court looks to the founding fathers' intent in forming its opinions, placing more weight on the ideas of the more educated, such as Jefferson.
The USA's decline, now at an international scale, can thus be reasonably explained by widespread ignorance. When Jeffersonian positive law was not so challenged by the will of the people, the original 13 states expanded to 50. But now the USA is gradually losing ground to other superpowers, Russia and China. The USA continues to struggle with terrorist attacks, increasingly invoked by this nation's own violations of natural law in ways unknown to the populace, therefore increasing its military spending to more than the next seven highest spending countries combined, with an allocation approaching two thirds of the Federal discretionary budget after including veterans expenses. As another example, the NRA's political agenda, inciting rights to kill on grounds of 'demonic terrorism,' is entirely against the positive ideals which formed this nation.
|In this video, typical of its kind, the NRA claims that the 'age of terror' mandates that fate, in the form of a citizen's bullet, should decide whether 'demons at our doorstep' should die. Both the demand to kill, and the nature of the justification itself, are completely contradictory to Jeffersonian rights, and therefore by promulgation, contradictory to constitutional rights also. But as a political distortion, it has been incredibly successful in shaping the will of the people|
By contrast, Japan has banned gun ownership entirely and has no standing army of its own, only maintaining joint forces as required by international treaty such as with the United Nations. Japan considers more than a dozen gun deaths a year a national tragedy, and has no terrorism whatsoever.
Or if one is purely concerned with economic issues, then since the onset of this millennium, both Russia and China have been demonstrating GDP growth in excess of population growth, whereas it has been going backwards in the USA. The USA should be seeking new markets in the interest of acting for the global good, but instead is withdrawing into fear-driven Nationalism.
One can reasonably conclude that the increasing violence and political antagonism in the USA is at least in part due to widespread ignorance about Jeffersonian positive law, impacting both social values and prosperity. As tohow much of this decline and violence directly results from abrogations of the Jeffersonian contract, I would dare suggest they are far more than most realize; for it you have read all this article to this end, you will have realized that almost no one at all, in the entire country, actually understands the Jeffersonian theory of positive law in full. But nonetheless, due to the schools teaching natural rights as being entirely 'self evident,' almost everyone believes their own intuitions are always right, leading to the interminable conflicts between opposing intuitions on such issues as right-to-life versus right-to-choice.
Such conflicts abound throughout this country, and throughout its interactions with others, in equally misunderstood ways–To far greater extent that almost anyone can now even imagine. Education on this Jeffersonian theory of positive law would move the Will of the People towards more acts for the greater good, increasing peace and power, and so should be mandatory in every corner of this great nation.
For whatever one may think of the theistic premise, or the conclusions drawn from it,Jefferson held it sacred & undeniable that WE, THE PEOPLE are created equal & independent, that from that equal creation we derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness. Due to that magnificent assertion, we, the people of the United States of Americastill possess natural rights, and not merely for our selfish benefit, but far more importantly, to enable our choice of actions that improve civilization for all.
– Ernest Meyer
Please see the bibliography inAll People are Created Equal on this site.