Politics: Major Contentions

Politics: Major Contentions

Needs and Rights

  • We have no clear understanding of the origin, differences, and warrant for the various rights we are asked to endorse: natural, human, or civil.
  • In this terminological confusion, we default to civil rights granted by compact or fabricated by jurists as more stable determinants of positive law, but what justifies the original compact’s enumeration or definition of rights, why do judges continue to differ on their expression, and why are all constitutions capable of amendment so as to add or remove civil rights by the simple approval of citizens who lack expertise?
  • History confirms these suspicions; civil rights in the English and U.S. constitutions, for instance, have been bitterly disputed since their beginnings and differ from each other and other founding documents and traditions.
  • Positive law is only meant to be a consensual distillation of a society’s most important values, so civil rights cannot be warranted without a more basic analysis of the more fundamental origins of positive law, which in contractarian states is the people’s will.
  • But that contention faces the immediate objection that such a shallow root for civil rights would render them as changeable and even arbitrary as positive law itself, subject to popular taste and therefore fully amendable and reversible.
  • The search for some more secure foundation will drive the analysis toward authority, perhaps religious, but the very nature of religious authority makes plain that we can claim no inalienable rights from a categorical God who exercises exclusive power over human freedom, and history has made equally plain that every authority is subject to challenges involving transfers of trust, once again condemning rights as ephemeral and arbitrary or at most relative to culture.
  • Modernist axioms will not allow an authoritarian justification for rights but will seek their origin in universal reasoning on individual experience; unfortunately, the inventor of the modern state, Thomas Hobbes, condemned rights as fictitious; the social contract allows no rights to be antecedent or superior to the original compact, so all rights must be purely civil and therefore purely relativist.
  • Postmodernists reject institutional authority as coercive and so are suspicious of law, yet their egalitarian values and identity politics move them to embrace human rights while their mistrust of government drives them to reject contractarianism; as a result, their sanction of rights is as rootless as the premodern congregant and the modern contractarian.
  • It is not an exaggeration to say that a social contract justification of government is inherently hostile to any but civil rights, so if we wish to argue for natural or human rights, we must abandon a contractarian model.
  • It is possible to replace it with a true theory of natural and human rights that does not rely on religious belief, on fictive states of nature and nonsensical initial conditions for political associations, or on veils of ignorance as retrofitted justifications; in truth, a natural rights theory can form the foundation for both human and civil rights, and it can seek consensual support for such a foundation in an a priori examination of individual experience revealed by a simple transcendental analysis.
  • It begins by recognizing the felt natural freedom that all persons use to recognize and choose the goods they value in experience; this preconscious mining of experience for possible goods is a universal human condition and requires protections of natural rights that permits it; these are of the Jeffersonian type: basic preconditions for preference.
  • The real challenge comes after natural freedom automates the presentation of options to attention; it involves choosing the best preference that any experience offers and is a second kind of liberty: preferential freedom.
  • Because this freedom is not automated, it carries the weight of moral responsibility, a claim-right on our nature to choose well; its very existence confers dignity; its proper objects of pursuit are coterminal with human rights: those needs whose gratification allows us to live fully human lives.
  • These needs are definable, limited, universal, incommensurable, and non-negotiable; one of them fully justifies government without the bother of a fictive social contract.
  • Persons and cultures pursue various desires, but the human needs that justify human rights are dictated by our species-specific human nature; for example, individuals and cultures desire an immense variety of food, but its common elements are the nutrients that meet the physical needs of the human body and it is this need that all cuisines and desires ought to seek to satisfy by preference.
  • Similarly, neurology and research into artificial intelligence reveals that for all our subjectivities and relativities, the human brain runs on an intersubjective operating system that allows us to communicate experiences through language, analyze them through reasoning, and improve them through moral preference.
  • This universal operating system is profoundly rational to a degree seldom appreciated, and it functions solely to facilitate preferential freedom in the pursuit of whatever we consider good.
  • True goods can be recognized in part by investigating their nature; they are universal, transcultural, timeless, incommensurable, and conducive to flourishing; because they are species-specific needs, they have always presented themselves to human beings in all cultures in all eras; because they all cannot be as easily recognized and satisfied as nutritional needs and because they cannot all be gratified simultaneously, reason has to arbitrate their pursuit in the flux of experience, which demonstrates that these needs are mutually reinforcing as objects of desire.
  • The clearest articulation of the nature of these goods and the character needs required for their satisfaction is presented by virtue ethics.
  • Though these needs can be delineated in various ways, their totality is relatively simple to explain as needs whose satisfaction is an invariably good preference.
  • A sample articulation would be the following, with the need expressed first and its complementary satisfaction listed second: bodily goods: health; economic goods: economic security; goods of the soul: love of others, awe; intellectual goods: knowledge, skill, judgment; political goods: justice; character goods: temperance, courage, and
  • Only three secular, universalist moral systems aspire to satisfy these needs; utilitarianism defers too much to immediate desire while duty ethics overcorrects in the direction of a strict code of duty to others; because virtue ethics focuses not on acts but on habits and neither on desire or duty, its characterological ends are truly moral and are most congruent with human rights.
  • We are morally obligated to seek the satisfaction of these human needs, to assist those we love, and to abstain from hindering strangers’ pursuits of these same needs.
  • These obligations are claim-rights upon ourselves and those we love and exemption-rights for individual strangers.
  • The exception is the stranger-writ-large that is government, in whom we exchange claim-rights that at first glance resembles the contractarian model but which instead is founded upon the individual needs of citizens that are morally antecedent to social order.
  • By extending some familial obligations metered to equity rather than love, government shares some features with families, but because it is bound to the individual needs of its members, justice becomes the defining feature of political association.
  • Because government and loved ones both satisfy the needs of individuals, though in different ways, their roles are not transferable and can be satisfied in no other way, which poses problems for distributive justice when tribalism dominates and for subsidiarity when government attempts to satisfy the duties of love.
  • What cannot be smudged in such compensatory efforts is that human needs are human rights and cannot be justly denied.
  • Human rights may be distinguished from foundational, cultural, and intermediate proto-rights that either condition environments for human rights, such as Jefferson’s enumeration of natural rights, or that instantiate human rights within cultures.
  • We see variations of these proto-rights when we discuss marriage rights, privacy rights, and women’s rights, none of which are actual human rights in themselves.
  • Our confusions over natural, human, and civil rights, as well as the proto- and cultural rights that involve their satisfaction, are partially the result of axiomatic assumptions that go largely unexamined but which affect an understanding of the nature and extent of human rights.
  • Because natural rights theories emerged from religious traditions, and civil rights justifications from social contract models, and postmodern misconceptions from cultural determinism, an historical and anthropological study coupled with latest findings in neurological science ought to be adequate to build a functional natural law that builds upon virtue ethics theory to frame and defend human rights as universal human needs.

Natural and Political Rights

  • Three contemporary theories of law are incompatible with rights theory.
  • Legal positivism reduces rights to legality and offers means neither to justify nor to defeat positive law.
  • Social contract theory was built upon modernist axioms of universal reason and closely examined experience, which is proper, but contractarianism only recognizes natural rights brought into compacts from the state of nature and civil rights conferred by the contract itself; the result has been a wild variety of “natural laws” that various theorists have defended as inherent to human nature, but since no state of nature ever existed, these rights are easily overridden by rights expressly conferred by law: civil rights.
  • Divine command first developed a theory of natural rights as God-given and soul-centered, but since no rights could stand against religious authority anyway, natural rights have frequently been seen as relative to religious faith, which cannot claim universal trust in contemporary life.
  • A functional natural law theory begins with the transcendental argument for a felt preferential freedom as the foundation for radical respect for the human person, whose mind presents options for choosing in every moment of experience as the gift of natural freedom; the operation of this capacity utilizes the natural rights that are preconditions of preference; the operation of preferential freedom confers moral responsibility on the moral agent to satisfy universal human needs; this capacity in turn confers human rights on every functioning person.
  • Human rights legitimize governments whose task it is to facilitate the satisfaction of needs by the operation of justice, to each his due.
  • We may recognize human needs as universal, transcultural, incommensurable, and timeless; a representative list includes bodily goods of health; economic goods of security; goods of the soul that include love of others and awe; intellectual goods conducive to moral choosing of knowledge, skill, and judgment; political goods of justice; and character goods of choosing involving temperance, courage, and prudence.
  • Because each individual’s moral responsibility confers human rights, one may begin to examine rights with individual responsibility, but because human beings live in community, one may begin with governmental responsibility as well; a working private system must be capable of coordinating with a public one and vice versa.
  • Virtue ethics and functional natural law represent compatible private and public moral systems which coordinate so long as persons recognize the proper sphere of their interests.
  • Private morality is composed mainly of claim-rights that preferential freedom imposes on individual choosing and relations of love; public morality is mainly composed of exemption rights in which strangers are obligated to refrain from interfering with the private activities of citizens; however, government has a kind of intermediate role which entails both claim-rights and exemption-rights.
  • These efforts are governed by approximations and trial-and-error, which at the governmental level must always be arbitrated by government’s signal duty to justice, to each his due.
  • Though governments have existed as long as families have, the fundamental moral center of both must always be the individual moral agent: both families and governments exist to facilitate the satisfaction of members’ needs.
  • Governments’ duties include retributive, contributive, and distributive operations always governed by the principle of what is due to individual citizens.
  • The most difficult allocation is distributive, which must be governed by the kind and degree distinction: in a just state, all citizens will be equally haves with sufficient resources to meet their needs; beyond this baseline, inequalities of degree will be celebrated as recompense for talent and effort.
  • The U.S. Constitution illustrates the relatively poor understanding of rights that the founders inherited from social contract theorists; the attempt to graft rights theory in the Bill of Rights to a contract document repudiated the root axioms of both rights theory and contract theory, reducing all rights to purely civil ones.
  • Later iterations of rights were variously successful, but contemporary society seems to have little appreciation that government is properly neither the creator nor the arbiter of human rights, but is instead their guarantor.

Two Senses of the Common Good

  • In defining “common good,” we imply either a shared set of values or an exclusion of some portion of a society, but given the axiomatic conflicts contemporary societies must endure, the latter meaning of “common good” is more likely true.
  • But that likelihood poses a double problem: the first that some minority will lack a reason to endorse law because their values are not reflected in it and second, that nothing ensures that a majority that excludes some citizens will pursue true goods either.
  • One unquestioned axiom of commonwealths is that “the people” ought to establish laws by democratic means, but the contractarian origins of commonwealths tend to favor liberty over justice and, despite the moral implications of that favoritism, also to assume that laws are morally neutral expressions of majority will.
  • Contractarianism has not found the means to escape the axiomatic conflicts that attended its invention, chiefly the assumption that citizens’ values must inevitably conflict, with government functioning as neutral arbiter of unceasing social conflict.
  • This implicit expectation clashes with the hagiography of the American founders and the Constitution they created, and it creates the highest tension over the question of how much liberty citizens have retained in their transition from state of nature to social order, but as this is a moral and not a theoretical question given the fictive nature of the state of nature and an original contract, no resolution has ever achieved consensus.
  • Early contract theorists like Hobbes and Locke, observing the intractable birth of modernist axioms in the chaos of the wars of religious authority, assumed axiomatic conflict to be irreconcilable in human affairs and so rejected even the possibility that persons might possess specific and inherent political rights regardless of contracts, a blindness that authoritarian hierarchies had endorsed as natural.
  • These errors are rooted in Reformation confusions of authority and belief, truth and goodness, and politics and religion that defied resolution so long as the underlying axioms of moral commitment that sustained the conflicts went unresolved.
  • The easiest throughline to resolve the issue of liberty was to imagine all citizens pursuing conflicting private goods with the state as neutral arbiter of conflict which settles them using majority will; the unstated goal always being a maximization of individual pursuits of private desire.
  • But this approach cannot avoid minorities, even down to individual citizens, withdrawing their endorsement when the state obstructs the satisfaction of their private pursuits, and it gave minorities every reason to unite to oppose majority interests which were admittedly hostile to their own.
  • One attempt to give moral weight to the expedient of government was utilitarianism, which calculated “public goods” according to a rewards calculus in which legislators were asked to decide public goods purely by majority will with no “moral” weight attached to a minority right whose existence utilitarianism denied in favor of a strictly hedonist calculus equating desire with moral goodness; rights were regarded as “nonsense upon stilts.”
  • In the second half of the twentieth century, postmodernists emphasized these hypocrisies and others, eventually championing the “rights” of discounted minorities as interest groups, but their distinctive moral axiom of environmental formation of reason requires a determinism of preference that cannot ground a theory of human rights.
  • In truth, various conceptions of “rights” as moral guardrails limiting government power permeate Western democracy, but no conception of their nature, origin, or relation to law has achieved consensus; nor has any differentiation of various classes of rights as “natural,” “human” or “civil” succeeded; nor has any delineation of rights ever been successfully defended or consensually accepted; nor has any clear connection between a theory of rights and “the common good” been established.
  • Government’s only function is the pursuit of justice, defined as “to each her due”; persons’ preferential freedom grants them the human dignity to command a radical respect for their human rights.
  • Although government has a relatively small role to play in procuring rights, it cannot be abrogated or undertaken by other entities; it may be summarized as the pursuit of justice, which makes government a moral good as necessary as family to human fulfillment.
  • Contractarianism obscures this truth and association of “natural law” with “divine authority” has obscured a relationship that can be more easily grounded today on neurological science, historical and anthropological study, and theories of the mind grounded on research on artificial intelligence and software programming than on disputatious demands for trust in the existence of a soul or the will of God or on imaginary states of nature and prehistoric social contracts.

Foundations of the Law: An Appetizer

  • We assume that law has some relation to justice but find it difficult to articulate what it is.
  • The relation is frequently thought of as fairness, which is inherently comparative between persons but which has two meanings, one stressing absolute equality and the other comparative superiority, meaning that seeking fairness as a term of proportionality can end in endorsing any preexisting conclusion.
  • Justice demands what is due subject to the moral principle of ought implies can.
  • Every citizen has to satisfy herself that the law has a right to compel her obedience, but what gives law that right?
  • Asking that question axiomatically brings law itself itself into question by dissolving the trust that powers legal authority, but it is a valid question for any citizen to pose in a democracy, indicating that authority alone is inadequate to answer it.
  • The oldest justification for law, divine authority seeking trust, is clearly inadequate to earn the sanction of citizens in a democracy.
  • A default alternative to divine authority is contractarianism, which defines “justice” as “the will of the majority,” but this puts minorities in the same relation to the majority as the majority would be to tyrannical rule and so grants minorities no continuing reason to sanction laws that disadvantage them.
  • Also, if contractarianism considers individuals the source of legal power, what prevents individuals from nullifying laws with which they disagree?
  • A second objection is that nothing guarantees that a majority will endorse legality that delivers justice to them either since history has shown numerous examples of majorities sanctioning laws that violated their long-term interests.
  • When these objections are considered, contractarianism seems less supportive of justice than suppressive of dissent, and in this respect, it is similar to a third justification for law: legal positivism.
  • Legal positivism considers justice coterminal with codified law and is the default position of legal experts for whom a theory of justice would be too contentious; therefore, most jurists promote positive law as a brute reality brooking no theoretical challenge, but this also fails to make justice the standard of value.
  • A further problem is that legal positivism is necessarily related to polity and therefore must be as relativist as divine command and contractarian justifications for law, allowing no universal defense of civil disobedience or human rights.

Preliminary Thoughts on Civil Disobedience: Natural Rights Issues

  • Of the four approaches to law, only functional natural law theory sees justice as antecedent to order.
  • One reason is because other approaches can find no means to justify or disallow civil disobedience; another is that they move moral power from individual agency to authorities, and though divine command thinks that transfer divinely commanded, social contract engages in hypocrisy to obscure it, and legal positivism utterly rejects it.
  • In contemporary democracies justified by contract, civil disobedience only becomes legitimate when it gains majoritarian support, which is a practical disincentive for individuals, who are theoretically the moral source of the contract, to engage in civil protest..
  • The consequence is that civil disobedience as a practice is as free-floating in contractarian states as the rights whose violation ideally would allow it.
  • What is clearly needed if a functional natural law theory is to replace contractarianism is a plain standard for legitimizing acts of civil disobedience;  the first of which requires that protest responds only to governmental violations of human rights and the second that all avenues of legal redress have been exhausted.
  • Even so, this effort must resolve four structural challenges.
  • The first concerns the errors that undistilled experience brings to individuals’ understandings of justice to strangers which are confused with values centered on love of intimates; these errors range from intense tribalism to excessive empathy, none of which characterize civil justice.
  • This problem is also founded in historical conditions of divine command, authority, contractarian errors involving the proper role of government, and gross self-interested defenses of tradition as justification for public values.
  • Functional natural law theory combats this first error by examining historical and anthropological commonalities among societies to build a catalog of universal human needs that are transcultural, timeless, and incommensurable.
  • A second problem is to disentangle these needs from the immensely varied means that cultures use to satisfy them so that the naturalness of the need can be separated from the conventionality of the cultural practice that seeks to satisfy it.
  • A third problem requires establishing a range of individual variance that law will tolerate as individuals seek satisfaction of their needs; this can be understood as healthy variance so long as the incommensurability of needs is respected.
  • The fourth problem is the tentativeness of any conclusions that even a competent inspection of ultimate human concerns can delineate, for such an enumeration cannot be empirical and is bound to be challenged as fiat justified only by authority rather than as a rational conclusion judged true by a preponderance of available evidence; this problem appears insurmountable until the deficiencies of the other three legal axioms are recalled.
  • A review of the strangulation of a needs/rights theory, first by religious authority and then by contractarianism allows us to understand the entanglements that hinder contemporary understanding.
  • The last three centuries have seen an undulating progression of rights theories that thoroughly confuse natural, human, and civil rights; postmodern objections to all institutional authority have both freed rights theory from its historical connections and demonstrated more than ever a need to justify civil disobedience by some standard of value.

When is Civil Disobedience Justified?

  • While divine command and legal positivist justifications for law can provide no standard for just civil disobedience, contractarian government can instill protections, though these must always be civil rather than human rights.
  • When we investigate the most famous of such protections, the U.S. Bill of Rights, we find a arbitrariness about their number and extent that is explored in The Federalist Papers; the tentativeness of such protections and the jurisdictional relativism of their justification as rooted in conventional association only clarify the deficiencies of contractarian views of rights.
  • The first exposition of civil disobedience by Thoreau confirms this suspicion and the consequential resentment of government’s restrictions of liberty that contractarianism nourishes.
  • But a careful reading of Thoreau’s essay calls this libertarian conclusion into serious doubt.
  • Because he defended an actual state of nature as opposed to the theoretical one used by contractarians to justify the power of states, Thoreau’s objection to government was with the social contract itself, not that initial contracts had surrendered too much individual power but rather than the contract had occurred at all.
  • In this position, Thoreau exploited a gaping hole in contract theory concerning whether its theoretical basis was historical or allegorical; Thoreau considered it historical.
  • His objection to government was precisely that contractarian surrender had emasculated individual autonomy by surrendering natural rights that individuals ought to retain, so Thoreau properly ought to be seen as rejecting contractarianism itself, and specifically contract theorists’ dismissal of pre-existing natural rights that no contract could abrogate.
  • But if Thoreau in the essay condemns contractarianism as a means to social order and justice, can the reader find in the essay what form of civil order Thoreau would approve of?
  • To understand how Thoreau produced his answer, two moral revolutions need to be reviewed: Kant’s and the Romantics Kant inspired.
  • Kant’s defense of individual rational and moral autonomy required a radical respect for individual agency that cannot be reconciled to majoritarian contract theory, and the Romantic pantheism that considered intuition and emotion as being inerrant moral guidance appropriated Kant’s argument to produce a radical individualism confident in its autonomy and sensitive to a divine voice speaking to intuition.
  • It was this hybrid of radical individualism and inerrant moral conviction that powered Thoreau’s notions of social order, which were utterly utopian and unworkable, yet his conception of civil disobedience inspired real political change by twentieth century icons who transformed an impossible rationale for civil rebellion into a natural rights methodology that is equally theoretical, yet eminently applicable to civil life.
  • It is deeply ironic that an a posteriori, fictive theory of civil law, social contract, inspired a second and an a priori fiction to oppose it, inerrant intuition, which in turn inspired a methodology of civil resistance that has popularized a rights theory that is still in formation.
  • Twentieth century heroes of civil protest attempted to clarify a consensual source legitimizing both government and protest by the same warrant, but this effort failed for Gandhi and King.
  • Gandhi’s protests in South Africa and India were eclectic, drawing upon sources as varied as Hindu tradition, “The Apology of Socrates,” and “The Sermon on the Mount,” but he only read Thoreau after he began his campaign of nonviolent protest.
  • Gandhi carefully walked the line between private virtue and public order, between divine authority and private agency, finding consensus in Hindu anti-imperialism as well as virtue ethics, but in the end, his willingness to embrace the legitimacy of divine command was responsible for his assassination by a religious extremist.
  • Gandhi’s popularity in the West tapped a maturing anti-authoritarianism that was shaped by French theorists into postmodernism, but he is admired more as antihero than for articulating a standard for just and unjust law.
  • King’s “Letter from a Birmingham Jail” shows a similar confusion of warrants for his call to civil protest; he mixes legal positivist, contractarian, and divine command justifications indiscriminately while providing those who oppose his analysis plenty of reason to disregard it using the same warrants.
  • He offers an undeveloped appeal to natural rights near the end of his letter, but it is framed as a corollary to a divine command argument, which is a fairly traditional approach, yet the examples Dr. King cites are all illustrative of logical inconsistency that might free a natural law argument from a divine command framework and fully justify his protest without regard to any other warrant.
  • Unfortunately, he could hardly accuse his opposition of inconsistency when his own appeal is so blatantly composited of conflicting warrants and axioms of legality.
  • Functional Natural Law theory begins with a rational examination of human needs as the basis for inalienable human rights; it establishes a boundary between private duties to love and public duties to justice determined by universal reasoning.
  • Needs are identified by four criteria: they are necessary for all human flourishing; they are satisfied for their own sake rather than for the utility of other desires; they are incommensurable; and their expression has historically been universal, timeless, and transcultural.
  • Functional natural law begins with individual responsibility to satisfy one’s own needs, that then expands into a larger private morality involving the duties of love, drawing a sharp distinction at this point of introduction to public morality toward strangers, and finally recognizes a subset of needs dependent on civil government as the warrant for all governments’ pursuit of justice, defined as “to each his due.”
  • Functional Natural Law explicitly rejects other warrants for law because each violates some human need and therefore some human right: divine command denies individuals’ participation in their own government; legal positivism secures no protections whatsoever for human rights superseding positive law; and social contract enshrines majoritarian rule and provides no theoretical safeguards for minority or individual rights other than those enshrined in civil codes.

The Riddle of Equality

  • Nothing could be clearer than the conclusion that the American founders did not believe that all men are created equal nor that Western societies still concur.
  • The concept of equality seems one more grand narrative modernism has foisted off to protect power disparities.
  • Not only do economics and politics deny equality; nature itself seems to reject it, and those relatively rare historical efforts to impose true equality have all ended in failure and social collapse.
  • This conclusion seems inescapable: no attempt to establish or impose equality by decree or design has ever succeeded at eliminating the inequalities that emerge naturally in civil societies because any amount of freedom will result in inequality.
  • When viewed correctly, it seems that liberty is the true enemy of equality, which explains in part why libertarians fear government, hate socialism, and wish always to maximize liberty at the expense of equality.
  • Libertarians are correct to charge that any effort to impose circumstantial equality will fail and will destroy liberty in the process.
  • The inescapable conclusion is that liberty is natural and internal, a product of the core function of the human person to exercise preferential freedom to satisfy desires, but that equality is inevitably unnatural, always comparative, and inevitably a societal construct; further, while liberty can be partial and therefore capably limited, circumstantial equality is necessarily all or nothing, and since no social arrangement has ever achieved it except temporarily and at enormous social cost, it might seem that liberty deserves its current ascendency in Western cultures.
  • But that view is entirely mistaken, for just as circumstantial equality must destroy liberty, so too, abstaining from efforts to increase equality must destroy liberty for the vast majority as privileges accumulate and are exploited.
  • The conclusion must be that liberty, like so many other instinctive desires, must be limited by conscious efforts to increase equality.
  • But these efforts suggest the next question: in the liberty/equality seesaw, how do we know when the balance is a healthy one?
  • The fulcrum of their balance must be justice, defined as “to each her due.”
  • But “what is due” cannot be calculated in the moral neutrality of a contractarian state wherein law plays neutral arbiter to a pantheon of private desires; it can only be calculated using a functional natural law calculus of true public needs arbitrated by contributive, retributive, and distributive justice.
  • An effort to apportion fairness in such calculations is misplaced, since it is invariably comparative among persons, which produces either a reversion to an impossible effort to achieve total circumstantial equality or to a libertarian bias that claims “what is fair” requires that some have more than others, a subterfuge that ends in maintaining privilege.
  • This problem has been amplified by the conflicting axioms of moral commitment that guide citizens’ judgment: postmodernists idealize an impossible circumstantial equality in principle and a scramble for scraps by interest groups in practice; contractarians regard every limitation on their liberty as an imposition on their freedom; premodernists wish to enshrine traditions that have always been hierarchical and exploitative.
  • The fulcrum cannot be found by using fairness, but instead must use a standard of justice employing the kind and degree distinction.
  • The error both sides make is to see circumstantial equality as the goal, but that is unachievable; a better perspective will see some equalities as required by justice, which supersedes all calculations of fairness; these are equalities of kind that all citizens need and which government exists to facilitate and that are synonymous with the satisfaction of human needs understood as human rights.
  • By definition then, equalities of kind are just and necessary as well as universally required for human fulfillment; a secondary consideration of fairness in allocations recognizes individual talent and effort and so sanctions inequalities of degree that allow some to have more than others, so long as all have an equality of kind, the satisfaction of what they are due.
  • This prerequisite of justice is conceptually difficult to understand and practically difficult to implement; a number of falsities need to be cleared away to make it clear, chief among them the libertarian golden rule that mistakenly defines justice as “maximal liberty limited by fairness.”
  • But this is a floating and grossly comparative standard that allows libertarians to violate human rights with impunity and so should be abandoned.
  • A key concept for equalities of kind is the baseline: the minimal standard of enough in human needs; it can be illustrated by looking at health needs, for which a golden mean may be empirically established; the baseline is also a standard applied, though poorly, to economic needs, but it applies as a golden mean to every human need as a recognition of the incommensurability of needs that can be used to identify them.
  • Two other difficulties involve the blurring of needs and desires in a consumerist society and the impossibility of calculating fault in failures to reach the baseline; public policy aimed at securing true human rights will partially resolve these two problems, though neither will ever be fully accepted by every citizen even in a healthy state.
  • A fuller exposition of this effort from the individual’s viewpoint involves acquaintance with virtue ethics, and from the governmental perspective, it involves an understanding of functional natural law theory; to understand the correct boundary separating private from public morality, one must understand the nature of the moral bullseye.
  • A simple analogy to this argument portrays the effort to satisfy needs as a generational race which under current social arrangements has each new generation either relatively advantaged or deprived depending on the status of its forebears; but the analogy is incomplete if merely winning the race is the goal, for crossing the finish line means a full human life, meaning that in a just state, every person will succeed rather than only those who started out so far ahead; therefore, a zero-sum outcome focusing on winners and losers and competitive advantage can be transformed into a cooperative outcome in which every runner may reach the baseline of human need, thereby achieving a just equality of kind.

Economic Justice

  • Dissatisfaction with present economies is expressed as either technical or moral; the technical manipulations that result invalidate appeals to pure capitalism, but that also allows moral questions the means to be considered in economics.
  • Market libertarians operate from a moral stance advocating freedom; interventionists may advocate for purely technical tweaks, but these are guided also by moral intentions that empirical science cannot have access to, and a separate set of interventionists argue directly for moral standards to direct economic policies.
  • Economists ignore these moral frameworks not because they are unimportant but because they are unquantifiable and concern goods that remain invisible to true science, yet the procurement of these goods is an important moral goal that economics cannot input into its calculations.
  • When reformers seek to enlarge economic concerns to the moral realm, they are functionally limited by the principle of ought implies can; this limitation confronts advocates of laissez faire who desire a purity of economic behavior that can never be, but it also confronts egalitarians who desire an absolute equality of degree in distributions or contributions.
  • Either side is likely to claim that it takes ought implies can into account, but both are likely to think the other side doesn’t, thereby distorting the debate.
  • Without regard to either side’s actual position, a disinterested observer will see the liberty/equality argument in economics as a single spectrum of possible positions and then will have to defend choosing a point on that spectrum that serves her moral intention; and since economics affects public morality, that point must advance the interests of justice.
  • Defending that point often begins with arguments for fairness, but when libertarians use the term, they are appealing to their sense of relative merit and when egalitarians use it, they are appealing to an equality of degree, and so the debate falls into irreconcilable confusion.
  • Libertarians have every reason to prolong the debate, for our natural preferential freedom favors enlarging everyone’s theoretical freedom of choice so that extant privilege may continue.
  • Egalitarians face far greater obstacles; though their argument for social justice and against privilege has gained them some traction, it cannot arbitrate economic rewards so long as relative privilege remains the measure of the offense.
  • Historical deprivations, which were founded on group bias, are relatively easy to calculate, but any appeal to fairness today must rely on individual compensation rather than a gross reversal of the original bias, and individual fairness can never be calculated according to relative merit as a moral argument.
  • Five factors affect the fairness of reparations: systemic structures, personal deprivations, deterministic deprivations, and moral failures, but these cannot be calculated so as to determine what compensation is fairly deserved by individuals.
  • Appeals to human science to arbitrate a solution will fail for both sides: egalitarianism seeks to subject preferential freedom to an empirical determinism it can never determine based on sociology, anthropology, and psychology; libertarians appeal to a preferred paradigm of economics to argue for less government intervention, but because human sciences are inherently faulty, no resolution will result.
  • Because fairness always measures comparisons between persons, and since no decisive resolution of such comparisons is possible, it must be abandoned as a moral desideratum in favor of a calculation to a standard of absolute value based upon judging individuals against a standard, rather than comparing individuals to each other.
  • That standard must be justice, what individuals are due, and this standard is not compensatory based on past offense but founded upon universal human dignity, which past deprivations have denied.
  • Some practical examples follow: the driver who was singled out from other speeders, not in fairness but because he violated the standard; students in an underperforming district sue, not because they lag behind their peers but because the entire district lags behind grade level achievement standards.
  • Standards of justice are based on positive law’s applicability to particular experience, but more foundationally on positive law’s coherence with justice itself, for whose sake positive laws are sometimes violated.
  • The definitive term in the phrase “equal justice under the law” is not “equal,” for that would establish an equality of degree dependent on fairness, but rather on “justice,” for which a standard must be articulated.
  • The same standard applies to the marketplace that applies to the courtroom.
  • The tension between equality and equity must be addressed; the standard is enough for a full human life, and when abundance is adequate, then an equality of kind is just, but when economic hardship is widespread, then equity must dominate so that every citizen shares in the deprivation.
  • But this tension is moderated by jurisdictional limitations; human rights are universal, but wealthy countries cannot repair institutional deficiencies in poorer countries from the outside, and though haves recognize the equity involved, their reach is limited by the principle of ought implies can.
  • A final limitation involves the nature of persons’ inherent human dignity: their preferential freedom allows them to make their own choices, so though government owes persons justice as a human right, citizens still have a moral duty to value it.

Income Inequality

  • If income inequality is a moral problem, we ought not think that income equality is the solution because it is unachievable.
  • It is possible to deny that income inequality is a problem by a variety of arguments: because it is an inevitable result of the invisible hand, because each person exhibits differing talents and efforts, making income inequality a fair result, or because government deforms the proper operation of the economy, in which case the failure is a result of government intrusions.
  • But all of these positions are untenable because they are attempting to reject what no one can achieve: an economic equality of degree, which ought not be taken as the moral goal of reformers, so dismissing its possibility is to misdirect the argument.
  • Any appeal to fairness will fail too because fairness can deny equality in favor of merit, but if equality is not the goal and merit is, we have to ask who defines and evaluates what counts as merit.
  • In a pure capitalist system, merit would be synonymous with what the market thinks, and value would be calculable, but nothing like a free market exists in an atmosphere of crony capitalism, corporate political influence, and massive wealth disparity, so no estimation of merit ought to prevail over considerations of economic justice.
  • If merit is fraught with self-interest, economic justice, like all justice, is calculable by universalizing human needs as human rights: persons are due the satisfaction of their economic needs sufficient to live fully human lives, which is quite different from the satisfaction of all of their economic desires.
  • Defenders of economic privilege wish to obscure the possibility of a straightforward allocation of economic goods sufficient to meet a baseline of economic security earned by human dignity rather than putative merit because it is in their self-interest to delay in order to perpetuate their advantages.
  • They accomplish this delay by four tactics: defend, deny, deflect, or defuse.
  • They can defend the fairness of the system by arguing that some contribute much more, and these risk-taking job creators thereby deserve their outsized rewards..
  • They can deny that economic inequality is an insurmountable obstacle to self-advancement, even as inherited privilege continues to stratify advanced economies.
  • They can deflect by blaming economic failures on labor unions, government, or other institutions that “distort the economy,” with the implicit charge that freeing corporations from “burdensome regulation” and the like would flood us all with a tide lifting all economic boats.
  • They can defuse by arguing that every economy decides its winners and losers, so those at the bottom deserve to stay there.
  • These arguments are fluid, generic, and impossible to quantify, but reformers need not use economic arguments — which vary by paradigm and so are easily disputed anyway — but only need to show their internal hypocrisies to defeat them.
  • Capitalism views itself as responsive to talent and effort rather than to inherited advantage and insider lubrication; its success depends on competitors’ judgment that everyone has a decent chance for success if they play by the rules, but as wealth disparity, gender and racial bias, and inherited disparities become more obvious, so does the realization that equal opportunity is a pipe dream.
  • This realization moves political activists to seek to establish mechanisms to increase equal opportunity access to education, training, and capital, but that will not of itself solve the problem of economic injustice because some socially desirable jobs are not profitable yet still increase justice in economies, so disparities will still result.
  • Again, defenders of laissez faire will argue this view denies the wisdom of the market and is socialist, but again, reformers can respond that laissez faire capitalism was never the goal but rather the means to universal economic security, again lifting the argument beyond the capacity of economic “science” into the realm of moral reasoning.
  • The slippery-slope-to-communism defense is sure to follow, but a convincing response is that the U.S. enjoyed very high standards of living during the second half of the twentieth century despite having a punitive tax code and multiple governmental intrusions into economic life.
  • A second rebuttal of the slippery slope argument is to draw the “kind and degree” distinction between a circumstantial equality of degree of outcomes and an equality of kind in which all citizens are guaranteed a living wage.
  • The kind and degree distinction is valuable in establishing many baselines of human rights, but it is eminently useful in quantifiable allocations and ought to entirely replace impossible arguments on fairness or equalities of degree that are neither desirable nor possible.

One-Armed Economics and Wealth Creationism

  • Economics might be thought the “hardest” of the soft sciences because it is founded on quantifiable data, but it has utterly failed the test of true science: it is poorly predictive, based on conflicting paradigms, and, like all human sciences, unable to penetrate the veil of preferential freedom, nor can it absorb necessary non-empirical factors into its calculus.
  • Although not a true science yet, economics does offer opportunities to expertise in limited fields of study; unfortunately, experts are relatively easy to coopt to further special interests and very limited areas of expertise seem to do little to sway the non-empirical assumptions that guide large-scale economic paradigms.
  • Consider the concept of “wealth creation”; one theory argues that only free enterprise can create wealth because all other monetary transfers merely move wealth around with each agent draining some percentage of value that entrepreneurs create from nothing.
  • This argument views government as parasitic and taxes as theft.
  • But it is blatantly false for a number of reasons.
  • First, monetary transfers occur in free markets when buyers find value exceeds cost, so every transfer creates value for the buyer and seller regardless of the nature of the service.
  • But even this picture is distortive, for in many exchanges, the purchaser is not free to forego the purchase but must make it to satisfy some human need and so the exchange cannot be free and may not be just; the paragon of this category is medical care, which the purchaser can neither arbitrate nor forego.
  • A second distortion is that some services or products are beneficial to all concerned yet would require expertise, training, or time to procure; examples of this category are drug approval, food inspection, or environmental monitoring: all important to citizens yet all unprofitable to private investors in a pure free market.
  • Such endeavors justify taxes and government purchases of services that are necessary but not profitable; it is inarguable that these functions create wealth for citizens by not depriving them of something they need.
  • No profit motive is sufficient to arbitrate these investments, and it is a mistake to think one could, for government is often the provider of last resort for products or services.
  • This truth puts the lie to claims that “government ought to be run like a business,” because justice rather than profit is the ultimate task of government.
  • If only private enterprise can create true wealth, a nurse in a VA hospital would produce less value than a nurse in a for-profit one.
  • Government’s reputation for wasteful bureaucracy ignores the thankless kinds of services government employees must provide, the duties to equity that government employment must sanction, and the designed inefficiencies of governmental operations to lessen opportunities for corruption or abuse of power.
  • “Wealth creators” in private enterprise exploit the civil order, infrastructure, educational opportunities, regulatory environments, and quality controls that government institutes to assist them, and these contributions alone are sufficient to warrant that a portion of their profits be returned to assist the next generation and to provide distributive justice to those unable to meet their needs and therefore justifies taxation.
  • None of this analysis is meant to excuse individual citizens from seeking to fulfill their economic responsibilities; this duty also has been distorted by both sides.
  • Liberals steeped in the wishful determinism of the human sciences refuse to acknowledge that most needs can only be arbitrated and satisfied by the moral agent; this duty confers human dignity and human rights, so liberals would do well to celebrate rather than deny it.
  • Conservatives’ respect for tradition enshrines systemic oppression as a norm to be conserved; they value tribalism as one of those norms, which is an advantage to subsidiarity but as economic cronyism can be a denial of justice.
  • One tradition that conservatives wish to maintain is contractarianism, which enshrines majoritarian dictates and denies human rights; another is capitalism, which privileges the haves and perpetuates economic inequities.
  • Another myth attending “wealth creation” is that entrepreneurs are also job creators, thereby benefiting all of society by their efforts; while no doubt true in itself, the accompanying denigration of socially necessary if less remunerative jobs is a slanderous distortion.
  • Like wealth creation, job creation is a cooperative enterprise rather than an Ayn Rand kind of lone wolf effort; there can be no wealth or job creation in a failing economy, so creation of either kind is even more dependent on purchasing power of consumers than on ingenuity of inventors; this harmonic resonance between employment and overall economic health parallels the relation between wealth creation and governmental infrastructure, so it is absurd to speak of one aspect of economic well being without acknowledging the other; the only reason to do so is to distort the realities involved to perpetuate economic advantage.
  • Economic privilege, confronted by these realities, will retreat from what is essentially a moral argument to a pragmatic one, saying that “the system” allocates rewards according to perceived value and cannot be tampered with without deleterious effect.
  • But the defenders of economic privilege ought not be let off the hook so easily, for their impulse to make economic arguments into rational ones invites opening the economic debate to the moral dimensions that inevitably frame it; their opponents ought to insist that economic policy cannot be separated from larger questions of a healthy society in which freedom and equality are balanced on the fulcrum of justice.

Prejudice and Privilege

  • “Prejudice” implies an active premature judgment of a person or a group, but “privilege” implies an unearned and externally granted advantage.
  • This difference in meaning carries two implications: first, that error implies both fault and a duty to correct, but receiving an unearned advantage does not imply moral fault, though it might imply a duty to correct nonetheless if the advantage deprives another of justice.
  • However, contemporary views of privilege rarely charge transgressions of justice, meaning a failure to meet a standard of what is due each person; rather they assume violations of fairness, which are invariably based on comparisons between persons, but this is an inferior standard.
  • The charge of privilege imposes a moral duty to correct an injustice which the person charged may have had nothing to do with whereas a charge of prejudice calls attention to a rational or moral error committed by the person charged.
  • Prejudice suggests its own solution: more accurate judgment; but it seems that a person can spend a lifetime working against an inherited privilege without lessening her degree of responsibility so long as the standard of fairness is not met, and this seems to demean both the preeminence of preferential freedom in morality and the individual dignity that it demands.
  • Questions of fairness always devolve into definitional confusions about whether fairness means equality of degree or earned merit relative to another; conservatives prefer the latter definition and liberals the former.
  • Conservatives charge that perseverance and talent are responsible for the privileges they enjoy, but the implication of that charge cannot fail to result in active prejudice against entire classes of persons who have not risen economically.
  • One reason fairness is so often the measure of disparity is that racial bias was indeed founded upon unfair judgments of relative merit, which naturally leads efforts to correct bias to attempt to reverse those judgments using the same standard; current emphasis on privilege does not change that calculation.
  • But in this comparison, the goods are absolute, but the harms are all thought to be comparative; but this effort to establish an equality of degree based on fairness is forced to view every unearned privilege as comparative and requiring redress, which is absurd because, if taken seriously, those enjoying even wholesome privileges having nothing to do with bias are asked to feel guilt and redistribute while those who lack them are encouraged to be resentful regardless of these privileges’ connection to prior bias.
  • Since not all human needs are subject to scarcity, a standard of fairness ought not apply; but lacking in their fulfillment, citizens are entitled to procure them not as a redistribution of privilege based on past unfairness but as a human right based upon present dignity, and to the degree that civil government has obstructed the satisfaction of these needs in the past because of active prejudice producing a current deprivation, it owes a debt to justice to remediate them.
  • But this same standard of needs/rights as determinative of justice goes further, for it establishes a claim-right for all citizens that ought to be the goal of justice regardless of past privilege or active prejudice.
  • Another failure of seeing this issue in terms of fairness and privilege is that the absolute harms of deprivation are inflicted on individuals but the implicit duty of correction is laid upon society as a whole; while this may change attitudes, it cannot remediate deprivation because moral action is an operation of moral agency, which does not reside in cultures but in the persons who compose them or in the stranger-writ-large that is government; imposing a vague and generalized “duty of society” to remediate absolute deprivations means no one is responsible to repair them.
  • This illusion is responsible for two errors: first that privileged “society” even in consensus can accomplish anything without individual moral responsibility, and second, that persons lacking the fulfillment of their needs bear no responsibility to secure them.
  • Notions of generalized privilege and fairness tend toward erasing responsibility rather than focusing it.
  • Viewed from the perspective of justice and absolute harm, we find many comparable legacies of harm that continue to be baneful, and the same argument can be made to demand justice in regard to imperialism, environmental destruction, and other systems of deprivation subject to the jurisdictional limits of the institutions and individuals involved.
  • The shame has never been that some have an excess; rather than the prejudice permitting the excess has also produced a deficiency for its victims in absolute terms of needs/rights.
  • Privilege is not the problem; deprivation is.

Alienation of Civic Affection  

  • Individuals may successfully associate with the state as inferiors or superiors, provided two conditions are met: first, that both parties agree to the arrangement, and secondly, that the arrangement is consistent with broad public moral outlooks.
  • Failure of the first condition results in resentment, crime, or revolution; of the second, to regarding the law in terms of pure utility.
  • Socrates regarded the state as superior to its subjects, a position that inspired his trust in its authority even when it condemned him to death; this trust characterized a submission of agency by individuals in corporate states.
  • The Protestant Reformation changed that arrangement by destroying trust and elevating individuals to superior positions vis a vis their states; its theoretical justification was contractarianism.
  • Theoretically founded upon individual agency, the contract even in theory is necessarily majoritarian, which means that protections for minorities and dissenting individuals must be spelled out in the contract, meaning that all rights are civil in origin according to the theory.
  • This theoretical weakness uncovers deeper ones, for no state of nature could have existed to allow for a contract; also, government in the theory is understood as a conventional expedient without moral content; and also the nature of the forfeiture of total freedom for civil order regards every law as a surrender, rather than an enlargement, of personal freedom.
  • These inherent defects lead us to ask how much our current contempt for government is fomented by the currently accepted theory that justifies its existence.
  • These weaknesses, rooted in the early modernist attempt to replace trust in authority shattered by the Reformation, were magnified by subsequent events, most obviously by the Romantic revolution that celebrated individual genius and heroic rebellion, and later by a series of Victorian hypocrisies that ended in the mashup of postmodernism.
  • The failed effort to scientize free will so as to subject it to empirical determinism produced a number of attempts to picture persons as products of their environment; these deformations of agency reverberated throughout the twentieth century and still distort postmodernist assumptions about identity.
  • An equally radical emphasis on modernist conceptions of experience elevated an heroic individualism in fundamental conflict with determinist theses; these views were radical and, in the case of Romanticism, antithetical to a social science outlook.
  • Though opposed, both views emphasized alienation from present social realities; they were synthesized into twentieth century alienism in popular culture and into the splintered paradigms of the social sciences, and in political “science,” the shift to anarchism; the twentieth century wove these strands into the myth of the antihero.
  • The political effects of trying to reconcile these intuitions in contemporary life has produced a political libertarianism that views government’s power as both too Machiavellian and manipulative to allow individual freedom but paradoxically too incompetent to accomplish its ambitions; because libertarians embrace a contractarian view, they think government purely conventional, its strictures too limiting of their freedom, and too responsive to majoritarian interests; since they disfavor it, their intent is to starve it of its power so as to disrupt its operations.
  • The modernist era has produced a sustained effort to see the individual as superior to the state and to separate legality from morality; this has stimulated an attempt to revive religious authority to provide public morality, but such a movement fundamentally misunderstands its own and its opponents’ radical individualism, which dooms any appeal to trust.
  • Both libertarians and religious revivalists err in thinking the state to be conventional and laws purely positivist rules to grease social interactions; every law is a public moral standard, and even those founded upon convention assume a moral dimension when considered in light of citizens’ need for social order and cohesion.
  • Both the premodern and the modern views of government relationship to its members rely upon a prior axiom too often left unexamined: that whether it is superior or inferior to citizens implies it to be separated from and external to them.
  • But this is plainly false and derives from contractarian theory, for government is a human need and therefore a human right, so it makes no more sense to say persons are separate from it than to say they are separate from the education they receive or the skills they possess.
  • Government exists to assist in procuring the good life, and its function is to pursue justice for every citizen under its jurisdiction, defined as “to each her due.”
  • It accomplishes that goal in three ways: through organizing large-scale endeavors too demanding of individuals in the constituency, which are contributive goods; through limiting license, establishing limitations to self-favoritism, and punishing malefactors, which are retributive goods; and through meeting a baseline of needs for those unable to satisfy this responsibility for themselves, which are distributive goods.
  • It is an error to think of “the common good” as elements different from the cumulative individual needs of the citizens who partner with government in these pursuits, for that might tempt us to a majoritarian calculus in which some are denied them at one extreme or to a randomized scramble to satisfy a broad range of citizens’ desires and by doing so neglect true needs at the other.
  • This emphasis on justice as what is due will anchor civil rights in human rights within a single jurisdiction, which is the goal of functional natural law theory.
  • Government plays a small role in human flourishing, but like family, its role is necessary and impossible to forego.

Which Clash of Civilizations?

  • Contemporary observers in the West view a world map through the lens of nation-states, but if one erases their boundaries in favor of a map of world religions, she would see a different geography, one the jihadist sees.
  • Jihadists see history as the catastrophic erasure of what they view as the only legitimate form of social organization: by religious authority.
  • They utterly reject western civilization’s defining axiom — the modernism that rejects divine command in favor of individual autonomy and universal reason — and put all of their trust in Sharia law.
  • This implies two kinds of enemies, the lesser of which are other religious authorities which compete for the trust of the faithful, the greater of which are secular states that long ago abandoned such trust in favor of secular states.
  • History has shown us five sources of social cohesion: tribalism, dynasticism, theocracy, economic class, and nationalism; civil government uses various combinations of these to appeal to citizen’s trust, which in the West is impossible, or to their sanction, which theocracy finds blasphemous.
  • Western imperialism has been consistent in the delusion that the best means of association is nationalism, and it has been quite willing to destroy old orders built upon other forms of civil unity with quite predictable results: civil war, fanatical opposition, corruption, and collapse of traditions; we have seen this pattern repeatedly in U.S. interference in the Middle East and elsewhere.
  • The U.S. is the purest form of nationalist identity, so in its incursions, it has taken such resistance as evidence that more Americanism could repair the disaster that some Americanism has fostered, a pattern repeated disastrously in our two decades in Afghanistan.
  • The appeal to trust in religious authority resonates in the moral vacuity of Western cultures and attracts converts willing to force trust, which is impossible.
  • It is reinforced by the artificiality of the national identities imposed on former imperialized states, lines drawn more to convenience Western interests than to honor traditional religious, tribal, or dynastic affiliations.
  • These past depredations are mirrored in what Islamists see as equally offensive present ones “imposed” by Western popular cultures, which clash with Sharia law.
  • So the first duty of Western nations is to respect traditional political structures and to tread lightly, if persistently, in pursuit of democratic values.
  • Western political and commercial interests ought not surrender their own concerns but ought to make two important changes: first, to strive to see our behavior through different eyes and to recognize and try to ameliorate recent offenses; second, to practice religious toleration and pluralism both at home and abroad as an ongoing demonstration of the nationalist model of civic association.
  • Defending this pluralism requires recognizing the similarity between Christian and Muslim fundamentalism: because of the nature of religious authority, neither can tolerate the other’s existence, so that every overtly “Christian” preference in immigration or foreign activity reinforces the theocratic viewpoint and hardens the opposition of Muslim fundamentalists who find their own theory of political association confirmed and “human rights” a façade for “Western crusaders.”
  • We also can be far more strategic in the method of our support; rather than propping up “nationalist” strongmen who are actually plutocratic plunderers, we might encourage tribalists who are more tolerant of religious diversity and thereby drain support from theocrats.
  • We are likely to use the well-worn playbook the West has employed since the end of World War II instead, which means that another radical Islamist movement will again form in Pakistan or Bruges or Riyadh, a renewal of theocracy that will exert moral appeal so long as the West fails to establish its own brand of public morality founded upon a radical respect for preferential freedom and the human dignity it merits.

Belief in the Public Square

  • When truth claims clash, disputants present their warrants, but when axioms of commitment clash, even allies will disagree about the validity of their warrants, rather than the truth of their declarations.
  • For instance, murder is condemned by positive law, divine command, and practical reason; we may not think it important because we agree on its impermissibility, but these axioms of moral commitment will produce tension on other issues unless persons can agree on which axioms will move public judgments.
  • This immediately poses a problem, for in the U.S., the Separation Clause disallows state sanction of religion, yet most U.S. citizens think they derive their moral outlook from religious beliefs, so secular law fundamentally conflicts with most citizens’ perceived source of moral law.
  • The contractarian assumptions that accompany this tension add to the problem because they base legal power on majoritarian sanction, regarding law as a conventional expedient, which produces yet another conflict with the moral power of divine command.
  • John Kennedy personified this tension as the first Roman Catholic president; in a speech to Protestant leaders he promised his values were products of his conscience rather than papal authority; but this position does not resolve the question of what forms his conscience if not religious authority; in valuing his conscience, Kennedy personified the modernist view of agency, but he also opened the door to the problem of imposing his own religious beliefs, directed by his conscience rather than his Church, on his fellow Americans, thereby replacing religious authority with religious belief, which is even less likely to be sanctioned by citizens.
  • In 1796, President Washington warned that private belief without religious authority could never produce a public moral culture, leading instead to anarchy.
  • The pragmatic accommodation that the U.S. indulged was a gracious universalism that viewed private religious belief as formative without being directive, an impossibility, but this compromise could only work if contractarian majoritarianism directed law, which was workable so long as religious beliefs were not diverse or considered formative of morality, so it required religious believers to hold their convictions very loosely so as to compromise with the majority or concede to it, but the Reformation reminds us that deeply held religious beliefs are bound to be divergent without government’s dismissal of all private belief in favor of secular sanction or a generalized trust in a single religious authority.
  • The consequence has been a sustained effort to paper over religious divisions in favor of a broad syncretism that tried to draw them into moral unanimity, an effort that could not succeed against deeply held religious conviction that refused to compromise private revelation for public order.
  • Regardless of specific belief, the temptation of religious fundamentalists is always to demand trust in authority if only to impose public moral unanimity, but this is delusional in heterodox religious environments and is doubly mistaken because contemporary citizens refuse to place trust in any authority, even civil authority; even if religious revivalists succeeded, they would immediately be faced with the difference between the dictates of one religious authority and the content of their private beliefs; further, they would find no way to reconcile equally passionate claims of allegiance to competing religious authority.
  • John Quincy Adams warned against thinking revelation, inspiration, insight, or discernment to be sufficient warrant for religious authority, much less for law.
  • Another negative consequence that postmodern Western societies face is the preference even in secular maters for private belief over judgment, even over empirical evidence.
  • The “culture wars” are relatively mild expressions of this issue, probably because civic life imposes fairly obvious requirements for public order and personal freedom that most citizens can reason out, in which case Kennedy’s appeal to private conscience is consistent with public needs, and dogmatic religion has had millennia to accommodate these needs.
  • The increasing threat to public concord we have witnessed in this century has three root causes: first, an increasing cadre of believers confuse their beliefs with textual authority they think in competition with amoral secular law; second, an increasing cadre of postmodernists wish to express their disdain for institutional authority by confronting the influences religion exerts in the public square; their dispute recognizes the majoritarian basis of contractarianism, and so both sides are eager to evangelize their position and demonize their opponents’; third, the contractarian model of civic engagement makes civil authority as threatening to libertarians as religious authority, and so they oppose both as infringements on freedom.
  • Postmodernists will triumph in their culture war because premodernists confuse their nostalgia for religious authority with their deep personal commitments to their religious beliefs, so they wish to surrender trust while still defending their own capacity to decide moral issues, even public ones, based on their beliefs; also, they cannot abstain from participating in a popular culture that is hostile to their faith.
  • But this victory will worsen the crisis of public morality since postmodernists are axiomatically hostile to institutions, regard law as a conventional expedient, and think morality a purely personal or at most a tribal kind of commitment.
  • Both sides in the culture wars think private morality the source of public moral commitments even while acknowledging that laws and customs are definitively not private and rely upon the common sanction of citizens.
  • Modernist axioms privileging informative interactions with institutions are necessary to public morality, and this view is fundamentally at odds with viewing institutions as formative, as premodernists do, or as perpetuations of exploitation, as postmodernists do.
  • But modernists have to overcome their serious error of perspective that views the state in contractarian terms, a theory born of premodern conflicts that resulted in justifiable postmodern critiques of hypocrisy.
  • Only rationally examined experience can be defended in public spaces and only if “rational” is understood in the universal sense of empiricism or mathematics; neither private beliefs or revelations, nor institutional authority will suffice in this age of axiomatic public discord.

Toward a Public Morality

  • Morality is a kind of goodness that is typically thought separate from utility and quality; in pursuing public morality, we have to consider the moral content of laws and mores that are public goods.
  • Love governs private morality because it is a fundamental need of tribal relations, though justice must backstop love even here because not all families are loving ones; this is a dangerous kind of relation because our discussion of public morality nearly always begins with the axioms of private morality.
  • Considerations of public morality are tangled by the axioms persons bring to their moral thinking: premodernists desire to surrender trust to some authority as formative of their moral identity; modernists desire to endow authority with their sanction so long as it furthers their moral reasoning in informative relationships with institutions; and postmodernists seek performative opportunities to demonstrate their moral superiority to institutional authority in toto.
  • These moral axioms are explicitly exclusive of each other because each was hammered out in moments of crisis to justify public moral commitments as response to the failure of an earlier maxim, but they are also implicitly exclusive because they understand moral responsibility to require different preferences and commitments.
  • For instance, premodernists see an iron curtain that separates their own judgments of utility and their trust in authority and deny hypothetical agency to persons that might allow them to choose their own moral path, whereas postmodernists see that kind of a surrender of agency as veiled impositions of power by traditional authority and so they jealously retain their moral agency and even use it against their own interests to prove their independence.
  • This divide can be partially bridged from both sides; by asking contemporary religious believers to examine their sacred texts they will find the difference between their own definitions of “morality” and “utility” are not clear-cut: although the divine command is clearly categorical in these texts, a subtextual appeal to readers’ hypothetical self-interest in being rewarded or avoiding punishment tempers the categoricality of religious texts; this opens a possibility of appealing to that same hypothetical self-interest in appeals to public morality as a utility of furthest ends in secular law.
  • Postmodernists face a different obstacle to public morality, for their axioms of commitment force them to reject impositions of values in favor of self-creation of private moral frameworks governed only by the principle of non-contradiction, but since at least some of their pragmatic options involve smoothing interactions with strangers, a purely hypothetical appeal might be found congenial even if it extended the consequential horizon beyond immediate self-interest; and we are beginning to see this argument temper the extreme independence of postmodernists.
  • Modernism’s core axioms have also suffered from its own self-critique as well as the hypocrisies it has perpetrated in the last three centuries, among them the fiction of contractarianism as a theoretical basis for political association and a continuing deference to institutional authority whose demand for surrender of agency is in grave conflict with modernist commitment to individual agency; the resultant inadequacies are well-known to contemporary popular cultures.
  • The first step in repair requires a distinction between public and private morality; this requires a clear division between their regulatory spheres; it will ease acceptance if public morality is thought as a kind of language, a pragmatic convention that premodernists, postmodernists, and modernists can accept without surrendering their private axioms of commitment in their personal lives.
  • Premodernists will be tempted to see this as a surrender to utility, but since their categorical commitments concede to utility anyway, and since authority will not revive trust in contemporary life, they will find good reason to sanction a utility of furthest ends.
  • Postmodernists will resent the foresight that such a utility will demand and will prefer to continue their pragmatic and idiosyncratic choosing as performative displays of independence, but since this is not an axiomatic change but merely an extension of possible consequences more likely to secure their interests, they too will find good reason to consent to a utility of furthest ends, so long as it is only in the public sphere.
  • This compromise will reveal a true hypothetical morality hidden beneath premodernists’ putatively categorical one and a true categorical morality hidden beneath postmodernists’ putatively hypothetical one.
  • Not coincidentally, this effort to extend the consequential horizon of preference will apply a reasoning universalism to private experience, which aligns with modernist axioms, and it will allow informative interactions with institutions that are essential for advanced societies while still respecting the moral agency of individuals.
  • This universalism will move civic morality toward consensus and force all sides to recognize the central role of government in extending public morality but also to recognize that government’s role is as limited as it is necessary.
  • This moral universalism will also reveal the commonality of human needs and the respective roles of public morality (laws) and private morality (subsidiarity) to meet them; it is possible that this utility of furthest ends will result in identifying these needs with human rights, which will finalize the pursuit of public moral ends as civil responsibility.

Functional Natural Law and the Legality of Human Rights

  • Premodern divine command, modern social contract, and postmodern legal positivism all fail to provide a theoretical basis for human rights.
  • Early theories of natural law were argued from a theological foundation: God’s will sanctifying the human soul; these declarations were guaranteed by Roman Catholic doctrine reliant on Christendom’s trust in its authority.
  • In this arrangement, it was necessary to suppress rational agency and to surrender it when in conflict with authority, a position still explicitly promulgated by Catholicism.
  • This dogma did provide a universal basis for rights and human dignity by positing the theoretical existence for the soul, but that theory also denied Christians the moral agency to define or claim any rights, theoretically in defiance of God’s inscrutable will but pragmatically by opposing theocratic dictates.
  • The result was a defense of natural law that was a profoundly conservative orientation structured to perpetuate institutional authority’s formative influences upon moral thinking; this appeal to trust was resistant to doubt in part because it emulsified truth and goodness claims and forbad an act of severance that might inspect them.
  • This arrangement began its collapse with Martin Luther; the Reformation proved the fragility of religious authority by shattering trust in a divine command support for law and custom without advancing any replacement theory for all aspects of morality, a collapse made all the more spectacular by the desolation of authority’s formative influence on truth and goodness warrants.
  • Modernism was delivered over two bloody centuries, replacing trust with active sanction and authority with rational and moral agency; public morality was thought to be an informative interaction appealing to universal reasoning applied to differing private experiences.
  • The most unfortunate product of this axiomatic revolution was contractarianism as a replacement model for divine command, for it was founded upon a fiction and defended in purely majoritarian terms; further, it explicitly denied any rights not expressed in original compacts, rendering natural law coequal to majoritarian will and effectively denying its existence in practice as its theorists had denied it in principle.
  • Modernism’s self-critique, the failures of the human sciences to prescribe and predict human behavior, and religious authority’s continuing demand for moral authority combined to produce the postmodern revolution during the twentieth century.
  • Postmodernism regarded institutions as impositions of power and saw both experience and reason as private constructs; its ambitions were to seek performative opportunities to display independence, to emphasize hypocrisies in present cultures in order to produce an equality of degree by dismantling institutions.
  • Their intensely personalized view of moral and rational agency supported radical equality, which might be thought comparable in moral terms to premodernists’ defense of human dignity as a foundation for rights, but postmodernists’ radical subjectivism – both of reason and morality – definitionally denied any rationale for their values set; so though postmodernists demand rights, they can offer no means to warrant public acquiescence to their demands beyond elimination of present hypocrisy which, in light of their theory of private moral dominance, is their only public moral stance.
  • The premodern, modern, and postmodern versions of rights are invalid in theory and irreconcilable in practice.
  • If we begin an effort to define and defend rights, we are compelled to also defend rational universality, which places us squarely in the modernist axiom of private experience subject to universalist analysis.
  • The most generic characterization is that some set of goods exists that all persons are somehow entitled to for some reason, that, if enunciated would prove utterly convincing.
  • Natural science, human science, and epistemology cannot begin this analysis, and because of the axiom required to accept its truth, neither can authority or privately examined experience; the only remaining starting point is a transcendental argument asking dispassionate observers to examine their admittedly private set of experiences conceptually as a means to return to universality of reasoning and begin to lay a foundation for public morality.
  • We begin with a concession to present confusions, acknowledging three failures in rights theories that must be addressed: first, that the source of human rights has never been defined conceptually; second, that their public moral value has never been established; third, that they have never been either enumerated or codified into law in any jurisdiction.
  • The transcendental argument begins with the universality of a felt natural freedom to identify possible preferences in experience; natural rights establish the conditions for natural freedom to operate, which was a tacit or explicit contention of early modernist theorists.
  • These natural rights that allow preferences to be articulated prepare persons to choose, but they do not concern what is to be chosen, which requires a rank ordering of preference by some standard of value open to felt preferential freedom, which is every person’s inalienable right to exercise in deference to her desires but also is every person’s inalienable responsibility to exercise well in deference to her needs.
  • This freedom and the responsibility for preference it imparts is the source of human dignity and human rights that are as universal in scope as premodernism’s dogma of the soul but are rationally confirmed by a transcendental examination, meaning they are available to individual sanction rather than to institutional trust.
  • The responsibility to satisfy species-specific needs through the proper use of preferential freedom resides in individual rational agency and is every person’s moral responsibility regardless of station or condition in society.
  • Such a ubiquitous operation was not apparent to modernism’s founders for three reasons: first, conflicts among religious believers and authorities were intractable and vicious, and the empirical philosphers who sought an alternative assumed these difficulties to be inherent to reason or society rather than historically specific; second, the conservative and traditionalist orientation of religious natural rights theories had helped create this chaos, so modernist thinkers were reluctant to embrace any natural rights that might authorize tradition; third, for their contractarianism to succeed, the state had to replace God as the source of public order, so no power could be retained by the citizen that was not specified in the original compact.
  • Even today, a secular theory of public morality strikes us as a non sequitur while we freely acknowledge that law itself is democracy’s most powerful public moral instrument; we think morality an intensely private and personalize choice, which is true as far as agency, but we also decry the collapse of public moral unanimity; these contradictions are legacies of modernism’s difficult beginnings.
  • If we return to individual preferential freedom, we find the moral agent responsible for both identification and satisfaction of needs, a task undertaken jointly with family and community; persons literally construct themselves through the opportunities natural freedom presents and preferential freedom chooses.
  • We all understand that individuals’ relations with family and friends are ordered on love, but what orders the relations between strangers as they go about in pursuit of satisfying their desires?
  • Relations with strangers are ordered on justice, defined as what each is due, rather than on love, so the next conceptual question, which defines justice in communities, becomes this: “What is due to strangers’ preferential freedom in justice?”
  • Morality begins with the principle of “ought implies can,” which disqualifies the kinds of concern we express toward those we love, which allows us to establish a clear division between public and private morality that can be framed as follows: morality requires relations of love among intimates and of justice among strangers.
  • To further develop the nature of justice, we may distinguish claim-rights from exemption-rights; strangers can make no claim-right on our love, but they can make a claim-right that we treat them justly, which frames our duty toward individual strangers as allowing them to satisfy their needs without our interference, which gives both sides an exemption-right that exempts them from a duty to assist actively in individual strangers’ efforts to satisfy their needs.
  • This rankles against calls for Christian love or empathy, but as these responses are largely sporadic and driven by sentiment, they cannot be claim-rights, for if they were, we would be faced with a duty to assist every stranger everywhere to fulfill her needs in just the same way as we assist those we love; but this duty defies the moral principle of ought-implies-can, so it cannot be moral; those who wish to dispute this argument mistake moral impulses for moral duty and need only consider the demands that love makes to realize that no enlargement of private moral duty is possible in interactions with individual strangers.
  • Our relation with strangers in groups, persons united in some sort of corporate agency of purpose, do impose claim-rights which are carefully spelled out so as to be mutually consensual rather than open-ended; modern corporations, civic organizations, and all governmental jurisdictions are examples.
  • The most comprehensive set of such duties involves the mutual responsibilities of citizens and their government: both claim-rights and exemption-rights are involved.
  • Citizens ask their governments to respect their exemption-rights, so that they may satisfy their needs, thus limiting governmental interference in individuals’ lives, but violations often occur; government’s retributive duties help citizens distinguish their freedom from license to violate other citizens’ exemption-rights.
  • A second claim-right that citizens make upon governments is to organize larger-scale ventures to facilitate satisfaction of citizens’ needs through the operations of contributive justice, which regulates governments’ degree of involvement in these ventures.
  • Perhaps the thorniest of claim-rights citizens exert on government is for assistance in the satisfaction of needs that other citizens can meet on their own or with the aid of subsidiarity, which is distributive justice; much suspicion now attends the scope of such efforts, but when viewed through the lens of human dignity, human rights, and justice, the question is much simplified: since needs are incommensurable and demand satisfaction, government as stranger-writ-large must undertake their satisfaction when no other means is available, this despite its admittedly broad-brush approach to such efforts and the clear preferability of other means of satisfaction closer to the source of the need.
  • Citizens will respond to this just requirement for distributive justice either by an instinctive – if inconstant – altruism that would draw needy families into loving association or by refusing to recognize the unmet needs so as to preserve their efforts for their own loving relationships; again, the concept of claim-right must make clear that individual citizens cannot accept a claim-right to distributive justice because the scale of the need is too vast, but neither can they ignore the claim-right that need expresses on the stranger-writ-large that is government, since needs definitionally require satisfaction and are human rights fundamental to dignity.
  • Our confusions over distributive justice come from two sources: impossible demands for universal love (and the claim-rights that confers) and contractarian theories that argue in the abstract that citizens have no rights not clarified in the original contract, thereby denying human rights entirely except when encoded as civil rights.
  • “What is due” is also confused by efforts to define and allocate rewards and punishments using “fairness” according to conflicting libertarian notions of merit or egalitarian notions of total equality.
  • It is a fantasy of the deterministic dreams of the human sciences that fairness of punishment or reward can be calculated or that responsibility for success or failure can be reliably known.
  • Government’s best effort to allocate fair distributions take place either in broad statistical calculations of large groups of persons or in very tightly orchestrated examinations of individual experience in judicial proceedings, but the difficulties, standards, and expertise called for in both efforts ought to warn individuals of overconfidence in their own estimations of fair distributions.
  • Fortunately, a far more definitive calculation can attend efforts to allocate what is due in justice to satisfy universal needs, and since a baseline of sufficiency is non-negotiable, government’s duty to the three spheres of justice is greatly simplified.
  • Though a bright line can be drawn between private and public morality, between duties to love and to justice, the private moral system called virtue ethics synchs almost perfectly with the public moral system called functional natural law, and though persons are free in private morality to choose private moral ends, the systemic requirement for moral reasoning itself suggests virtue ethics, not only because it eases civic responsibility but also because it is the only universalist moral system responsive to the differing duties of love and justice.
  • Opposition to this framework is likely to be most strongly argued in defense of either subjectivism or cultural relativism, meaning the contention that individuals actually do not share universal and species-specific needs or that cultures are socially conditioned to different ends; but these contentions are themselves products of axiomatic conflicts between historically-determined moral assumptions, foremost among them the denial of preferential freedom in favor of scientific determinism and a mistaken distinction between preferential freedom and moral responsibility.
  • Functional natural law justifications recognize the limitation of public morality and the primacy of felt preferential freedom, so it acknowledges the limitations both on the kinds of claim-rights that government can satisfy and the ability of government to satisfy desires that subsidiarity can satisfy more fully; and most significantly, its honoring of human dignity also imposes limitations on its ability to assume the responsibility that individuals rightly must exercise in pursuit of their own flourishing; for all these reasons, governments must always fine-tune their pursuit of justice as responsive to the same human dignity that imposes moral responsibility on every citizen.