Natural law, and the problem of definitions.

Tuesday, 25 November, Year 6 d.Tr. | Author: Mircea Popescu

Let's work off a convenient intro prepared by one James A. Donald :

In this paper I have used several different definitions of natural law, often without indicating which definition I was using, often without knowing or caring which definition I was using. Among the definitions that I use are:

  • The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. (This definition is the most widely used, and is probably the most useful definition for lawyers)
  • The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, (in the absence of better methods), by individual unorganized violence, in particular the law that historically existed (in so far as any law existed) during the dark ages among the mingled barbarians that overran the Roman Empire.
  • The medieval / philosophical definition: Natural law is that law, which it is proper to uphold by unorganized individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. Locke gives the example of Cain, in the absence of orderly society, and the example of a mugger, where the state exists, but is not present at the crime. Note Locke's important distinction between the state and society. For example trial by jury originated in places and times where there was no state power, or where the state was violently hostile to due process and the rule of law but was too weak and distant to entirely suppress it.
  • The scientific/ sociobiological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganized violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized violence to punish such conduct, then such violence would not indicate that the person using such violence, (violence in accord with natural law) is a danger to a reasonable man. This definition is equivalent to the definition that comes from the game theory of iterated three or more player non zero sum games, applied to evolutionary theory. The idea of law, of actions being lawful or unlawful, has the emotional significance that it does have, because this ESS for the use of force is part of our nature.

You are perhaps rightfully suspicious of the introduction there. So am I. As far as I can see, something that "can not be defined" should never be spoken about. If the author readily concedes that the subject of his ruminations resists definition, then he should just as readily add the final punctuation mark of the entire thing right at the end of that sentence and go either ruminate some more, until whatever impediment in his own head prevents him from seeing a definition that otherwise may exist ; or else to propaganda by the deed that which can not be spoken upon. Either way, basic logic imperatively requires that silence follows such a statement.

Moreover, something that should not be definedi lest the enemies thus learn its weakness may be anything except good sense. Indeed, what'd you think of a cryptographic method that "is sound", for just as long of course as "the enemy" doesn't learn how it works ? What would you think of a cure for whatever disease that "works just fine", for as long of course as nobody employs it ? This is the stuff of nonsense, and a very poor excuse to keep talking of things one has no idea about.

That said, let's look at the variants proposed.

Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin

This is not in fact how species are defined. Species were defined a while back through a process familiar from the definition of concepts generally : proximate genus and specific difference. Thus, "man is that living thing without feathers and with flat nails"ii. These days, with the sharpening of our understanding of genetics, species are mostly defined numerically.

More importantly, there is a fundamental distinction between nature and culture at work here. While we could point to members of a species to create the definition of a species (and for a plurality of endangered species this approach is in all likeliness the more economical), we couldn't point to say photographs of a highway taken from an overpass to define driving, or cars ; similarly we couldn't point to printouts of CPU registers to define a software program. Law is a cultural construct, and "natural law", necessarily a subset thereof, is then equally a cultural construct. The pretense for a matter of culture that it'd somehow magically be a matter of nature instead is pretty ludicrous, as far as that goes. In reality, natural law will always be akin the software and the driving, never akin the birds and bees.

Natural law is that law which corresponds to a spontaneous order in the absence of a state

This is nothing more than true scotmanism. "Natural law is that law which happens when nothing that I don't like happens". Derp.

and which is enforced, (in the absence of better methods), by individual unorganized violence

This begs a large number of questions. It may appear to the obviously untrained auctorial mind that if you conceive the positive, such as "organised", then you automatically also have available the negative, ie "unorganised". Nevertheless, this is factually incorrect.iii And what's all this morass of "enforced", "individual" and "order" supposed to mean. Is a corporation an individual under the (unstated) logic of this approach ? Is the state an individual too ? If not, why not, and what implications does that have ?

As the expression goes, "this needs more scholarship".

in particular the law that historically existed (in so far as any law existed) during the dark ages among the mingled barbarians that overran the Roman Empire.

The only reason this illusion persists is the lack of said scholarship. "Dark ages" aren't dark in that sense, and barbarians didn't "mingle" in the implied sense nor were they "lawless". Their laws were fundamentally tribal, recognisably similar to what today passes for law in Pashtuni territories say. Just as apt to be codified as the Imperial legislation, and in many places just as codified in fact.

Natural law is that law, which it is proper to uphold by unorganized individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence.

This collection of words isn't even a sentence! Consider :

The Carnot cycle is that cycle, which is proper to occur in gases, whether insulation is present or absent, and for which, in the absence of [the effects of] insulation it is proper to extract work through movement of heat.

Nigga, say wut ? You can't even establish, on the basis of the proposed definitioniv, if the "state" -> "orderly society" relation is or is not correctly rendered as "insulation" -> "[the effects of] insulation" in the thermodynamics piece. What the shit!

For example trial by jury originated in places and times where there was no state power

This is not even wrong. For starters, how can one thing originate in places (plural) ? Was the author born in Wales and Connecticut ? Or does he imagine that because the collection of whores that contributed mitochondria to his current biological organisation came from all over the place this now means he "originated" all over the world ? But otherwise no, the trial by jury did not originate in unnamed "places". It originated in Athens, which had a very well functioning, quite present state at the time.

Natural law is, or follows from

Does this style of verbiage remind you of the classical treatises on medicine, cca Renaissance era ? Because that's exactly what this cluelesness masquerading as knowledge is. "Disease is, or follows from, an impurity of the soul."

Conduct which violates natural law is conduct such that, if a man were to use individual unorganized violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized violence to punish such conduct, then such violence would not indicate that the person using such violence, (violence in accord with natural law) is a danger to a reasonable man.

This can't even stand. Suppose A together with B have a daughter C. Suppose D and C fall in love. Suppose later D beats C. Suppose D takes refuge with A. Suppose D comes to take C back. Suppose A kills D. E sees this and kills A. Now, is E "a danger to a reasonable man" ?

Myeah. Good luck, get back to me when you're done. (Again, we're not inquiring as to your own personal preferences and inclinations here). Note how I wasn't even forced to say whether E and D are related, or whether there's any patrimonial disputes involved, or anything whatsoever.

What sort of bullshit is this, people!

Anyway : natural law is that system of law that can be maintained without input from the outside. That's what it fucking is. If you don't need recourse to an exterior power, and your situation is stable, you're being governed by natural law. If you need such recourse, like Obama does, and like the Romans did, and like Africa did and does, then it's unnatural. Because that's what distinguishes nature from culture : nature stands on its own, forever has, forever will. Culture crumbles.

Much more importantly : stop fucking presuming. Giving definitons isn't for everyone. There's no shame in shining boots, for the man best fit to shining boots. Shame begins once the sutor looks above his crepidam. They're Latin words, I'm sure you're familiar with 'em.

———
  1. The orignal author moves, perhaps unaware of it, from one realm to the other. This jump is a big deal, and if he's unaware of it that paints an unflattering picture of the quality of his mental process. If he's aware of it, that puts his ethics in question. []
  2. The flat nails were added after that asshole Diogenes threw a plucked chicken into the decorum of Plato's academia, screaming "here comes Plato's man". []
  3. Consider the famous Minsky-Sussman koan for elucidation of this point, inter alia. []
  4. This is imporant. Not, emphatically not, "on the basis of your own preference", that's not what's being sought here. Related. []
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3 Responses

  1. Aha, the author of this convenient intro is the same James A. Donald of Cryptography Mailing List fame, the original "Bitcoin is nice but won't scale" guy.

    He seems to be a completely mixed bag of sensible concerns, thoughtful understanding, and complete defeatism. Perhaps it's this last quality that leads him to misconstrue law and violence.

  2. Mircea Popescu`s avatar
    2
    Mircea Popescu 
    Thursday, 27 November 2014

    Yes, that's him.

    And yes, mixed bag. Then again, aren't we all...

  3. We are! Therein lies the fun :D

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