Do our rights come from the government—or God?

The takeover of state marriage policy by the federal courts in the name of the U.S. Constitution (which gives federal courts no license whatsoever to do so) is now revealing itself for what it is: a wholesale rewriting of this nation's founding principles.

In a debate on CNN last Thursday, Chris Cuomo responded to Alabama Chief Justice Roy Moore, who said, "Our rights do not come from the Constitution, they come from God." Cuomo responded, "Our laws do not come from God and you know that,” he said. “They come from man. … Our rights do not come from God."

Cuomo, apparently innocent of such documents as the Declaration of Independence or for that matter John F. Kennedy's First Inaugural Address, or Martin Luther King, Jr.'s "Letter from a Birmingham Jail," all of which affirm the view Chief Justice Moore voiced.

In order to hijack the Constitution to conform with their ideological predilections in opposition to the principles upon which it was written, you have to change those principles. And in this case, that means changing the very historical foundation from which rights have always been considered to be derived.

The thing about liberalism (and I mean to include libertarians here, since they are simply right-wing liberals) is that its political philosophy collapses into "might makes right" absurdity.

Here is what Cuomo said in response to Chief Justice Moore's assertion (consistent with this nation's founding principles): "That’s your faith, that’s my faith. But that’s not our country. Our laws come from the collective agreement and compromise.”

For one thing, Cuomo shifts from "rights" to "law." But it doesn't matter. Neither rights and the justice of a law can be determined outside the context of natural law.

The distinction between the unwritten and written law (or what are often referred to as the natural and positive law, depending on who's talking) goes back to ancient times. Both Aristotle and Plato articulate the distinction. It is only ignorant television commentators who obfuscate it. It is a distinction between a transcendent law and a law made by men. And the laws made by men are judged by the transcendent law--there is no other way to judge them.

If a law violates a right, it is unjust. And whether a particular right exists or what it consists of cannot be determined within the system of law itself. Unless there is a transcendent law above the man-made law, there is simply no way to say whether a law is just or not. If there is no transcendent law, then saying a law is just or unjust doesn't even make sense. Outside the context of a transcendent law, the question of the justice of a man-made law quite literally has no meaning.

If the only ground for rights (or law, if you prefer) is our "collective agreement and compromise," then the basis for rights is only as deep--or shallow--as our own shifting opinions.

If there were no transcendent grounding for rights, then there could never be any criticism of any "collective agreement or compromise." If, for example, the Nazis were able to convince people to sign on to a "collective agreement," there would be no stance outside that agreement from which to judge it, since, according to people like Cuomo, it's legitimacy derives from itself.

Cuomo believes our rights come "from government." Okay. Which government? The United States government? The Cuban government? The North Korean government? The Russian government? The government of the Third Reich?

Despite the naive rhetoric of people like Cuomo, no sane person really disbelieves in the natural law. But for liberals it is a convenient form of demagoguery to attack it. In doing so, they count on a public they have rendered ignorant by the bad public schools they support and a mind-degrading popular media which they largely control.

This is the cost that liberals must pay for wanting to say that rights are simply what they say they are, and the fact that they are not willing to admit that that is the cost they must pay is simply another measure of how shallow--and dangerous--they are.

HT: The Public Discourse

Is there such a thing as natural selection?

Panda's Thumb put up a blog post with an interesting title a couple of weeks ago: "Natural selection reduced diversity on human Y chromosomes." Now I'm sure this is a very interesting article for other reasons, but I'm interested in the title of the article, which talks about "natural selection" "reducing" something in something else.

Natural selection, which is, apparently, some actual thing, is acting on some other thing. This brings up several questions having to do with ontological status of natural selection. What exactly is it? Is it some ghostly force? Is it a mechanism? How can it act on something else? In what way is it a subject that acts on other objects?

And this article title is hardly unique. Many scientists talk this way--in a way that reifies the abstractions they have themselves fashioned.

Now there seem to be two possible views here: First, there is the prescriptive view: that natural selection is a thing--it has some ontological status in the world and that it acts upon other things in the world. Second, and alternatively, there is the descriptive view: natural selection is not a thing in and of itself, but is rather a description of the way the world, in fact, behaves. Another way of putting it is that, under the prescriptive view, natural selection is something in the world, whereas under the descriptive view it is something in the mind of the scientist.

To talk about it in the way this article title does--and in the way many scientists do on many other occasions--assumes the first view. Do these people really believe that natural selection is a thing? Or is this just their careless way of speaking?

I imagine if you corner your scientific friend who speaks in this way, he will finally have to say that it is just a manner of speaking, in which case you can't really say that natural selection does anything.

Maybe, in regard to natural selection, it is just a way of speaking. But there is the same issue in regard to natural laws. Are they real in and of themselves? Do they have some prescriptive force on the things they are said to govern? Or are they simply descriptions constructed to fit a set of facts and events in the world?

I don't think it is too much to say that the general public thinks of things like natural selection and the law of, say, gravity, as things having prescriptive force. And it's partly due to the way scientists are always talking. I suspect that in this case there are more scientists who would take the prescriptive view. And this is certainly the way the layman thinks about scientific laws: that they govern things in the world, making them do this and that and prohibiting them from doing that and the other thing.

That is, after all, what laws in the real sense of laws--the things our legislatures pass--do: they govern things. They order this thing to happen and this other thing not to happen. The whole reason for calling regularities in nature laws is to produce this impression that there is something out there that makes things in nature act a particular way.

The prescriptive view of natural law is wholly unscientific. And by that I mean not that it violates any scientific principle (that would be positing a prescriptive law governing prescriptive laws), but that such a view lies outside the very purview of science. If scientists want to claim to be empirical, then they can't possibly believe in the prescriptive view because the prescriptive view is metaphysical. It is what the philosopher David Hume said about causation in general: it can never be arrived at by any empirical method: Nobody has ever seen a natural law. It is a metaphysical postulate that explains the way things happen. But it is wholly non-empirical.

This, in fact, is the whole objection to miracles: that they are claims that there are events that violate natural laws. The objection to miracles assumes the prescriptive view. And yet, I suspect that a number of the atheists out there who are always championing the integrity of science, and who would admit that, from an empirical standpoint, natural laws are merely descriptive, will turn right around and argue against the miraculous on the grounds that miracles violate prescriptive laws.

As Chesterton pointed out in his "Ethics of Elfland," the only way to view the world prescriptively is to view it as the result of prescriptive will. In fact will is the only thing that can really be prescriptive: It is the necessary condition for prescriptiveness. To use the term "law" in the context of science and then to deny that you are using it prescriptively is try to have your scientistic cake and eat it too. It's either careless or dishonest--or, perhaps more likely, thoughtless.

The way atheistic scientists talk is many times at odds with their stated positions. They say on the one hand that they are not engaging in metaphysics, but as soon as they say that, they render much of what they say unintelligible. Their very denials make gibberish of the truths they affirm.

It's one of the great ironies of the whole language of science and natural law (or for that matter natural selection) that it only makes sense from a position of theism.

Philosopher Ed Feser has responded to Thomas Cothran's recent article on natural law

Philosopher Ed Feser (who we have, at times, referred to as simply "The Philosopher" for his outstanding treatment of Aristotelian Thomism in The Last Superstition) has responded to Thomas' article in the most recent Anamnesis journal, "Nietzsche and Neo-Scholasticism: The Dangers and Promise of Natural Law" in a post at his blog titled, "Nietzschean Natural Law?"

I've had to argue with him around the dinner table his whole life. It's about time someone send reinforcements. Seriously, it's an interesting debate if you have an hour or two to think through some complicated philosophical issues related to natural law.

Did Edmund Burke reject natural law?

The NCSE's Rosenau struggles with the issue of natural law. So far, natural law is winning.

In a previous post, I had questioned an assertion by a guest interviewed on NPR, in a discussion on the Egyptian crisis, that Internet access was a "basic human right." Josh Rosenau responded, arguing that all we need do in grounding the ultimate moral foundations of law is to appeal to the United Nations.

Seriously.

When I responded to him, pointing out the intellectual silliness involved in such a claim, and articulating the case for natural law (the idea that there is a metaphysical "law above the law" on the basis of which we can judge all positive, written laws), Rosenau responded again, arguing that a Burkean conservative such as myself who also adheres to natural law was inconsistent, and made the ludicrous claim that Burke, one of the great champions of natural law, actually opposed it.

But first, of course, he had to call me names.

I called in my last post for Rosenau to inject some wit into his vitriol, just to make the reading of his posts a little more bearable. But, alas, my calls went unheeded, and he begins his response with the usual artless invective, charging me with "bigotry" on basically every issue I have addressed, and more, in fact, that I have never even talked about.

I can respect an insult, deftly administered, but these crude attempts at vilification are enough to make you lament the low state of modern discourse. The rhetorical art of vituperation has a noble and storied history, going back to Aristotle's discussion of it in his Rhetoric. But Rosenau clearly is unfamiliar with this.

In fact, let's just consider this an official call for the NCSE to get him some remedial instruction in invective. I'll even help pay for it. The least we should expect of a man is that he be able to competently hurl an insult.

Edmund Burke, he says, was opposed to natural law. In saying this, he simply bulldozes right through several key distinctions that anyone with any knowledge in this area must take for granted:

Of course, the entire objective of Burke's Reflections on the Revolution in France was to argue that a written law can only be critiqued from within the history and structure of the existing laws. It is on this basis that he concludes the French are wrong to cast off their existing laws and customs and start a government rooted in a natural rights.

He then quotes this passage in Burke to justify this claim:

... it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity — as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. [emphasis mine]

That isolated quote will certainly sound, to someone unfamiliar with the rest of Burke's writings--or for that matter the rest of Reflections on the Revolution in France from which this is taken--as if Burke rejects natural law. But let's pay attention to the italicized parts as we listen to Rosenau summarizing what he thinks Burke is saying:

Thus, for Burke the external fulcrum is not some metaphysic (which he derides as speculation and abstract theory), but the hard facts of custom and tradition. It hardly bears mentioning that Burke's aversion to rights-based revolution would surely make him (not me, as Cothran would have it) Hosni Mubarak's favorite human rights theorist. [again, emphasis mine]

Rosenau jumps from Burke's assertions that liberties can only be claimed and asserted through tradition and custom to the fact that the fulcrum is not metaphysical. Rosenau completely ignores the distinction between how we know what our rights are and how they may be justified.

Peter Stanlis has pointed out, in his book Edmund Burke and the Natural Law, that Burke not only didn't reject natural law, but was "one of the most eloquent and profound defenders of Natural Law morality and politics in Western civilization.":

In every important political problem he encountered, in American, Irish, Indian, and domestic affairs, in his economic principles, and in the great crisis of the French Revolution, Burke consistently appealed to the Natural Law and made it the basis of his political philosophy ... [A]s an exponent of Natural Law or traditional "natural rights" Burke was in the great classical tradition of Aristotle and Cicero and the Scholastic tradition of St. Thomas Aquinas, Bracton, and Hooker.

Rosenau seems very confused on this point. Will Herberg has noted how easily this question comes up when reading Burke, and he states the perceived problem nicely:

How can a man be an advocate of expediency and an apostle of principle at one and the same time? How can he, for example, excoriate the French Declaration of the Rights of Man as “abstract” and “metaphysical” in almost the same breath that he denounces the French revolutionaries for their crimes against the “eternal immutable law”?

The problem is in the failure to distinguish two very different Natural Law traditions, one of which Burke holds, and the other which he doesn't. What Rosenau does is conflate two, and misunderstand his rejection of one as a rejection of both.

Heinrich Rommen, in his book The Natural Law: A Study in Legal and Social History and Philosophy, explains the difference between the Enlightenment school of Natural Law inaugurated by Hugo Grotius, and extended through the works of Samuel Pufendorf, Thomas Hobbes, and Jean Jacques Roussaeau on the one hand, and the Christian Natural Law tradition of Augustine, the Church fathers, and Aquinas on the other. Rommen calls the first the rationalist view of natural law, and the second the metaphysical view:

One is the idea of a revolutionary and individualistic natural law essentially bound up with the basic doctrine of the state of nature as well as with the arbitrary and artificial, is determined by utility, and is not metaphysically necessary. The other is the idea of a natural law grounded in metaphysics that does not exist in a mythical state of nature before the "laws," but lives and ought to live in them--a natural law which one would fain, though somewhat ineptly, style conservatism. [emphasis mine]

Rosenau sees Burke attacking the former, and, unaware of the distinction, interprets him as attacking even the latter, when, in fact, he is speaking out of the latter tradition. Although Burke would also disagree with the Protestant view of Natural Law prominent after Ockham that denied that there was any access to the Natural Law outside of revelation, the Catholic view--that it can be known by reason (through tradition and custom, not by the articulated rationality of the Jacobins) as well as revelation was most certainly not Burke's target.

Rosenau needs to read the passages in Russell Kirk's The Conservative Mind: From Burke to Eliot dealing with this issue. Kirk is one of the great modern exponents of Burke and he makes short work of the idea that Burke is anything but a classical Natural Law thinker:

Burke declared that men do not make laws: they merely ratify or distort the laws of God. He said that men have no rights to what they please: their natural rights are only what may be directly deduced from their human nature. The Whig reformer, the advocate of enlightened expediency, told England that there was indeed an immutable law, and there are indeed inalienable rights, but they are of origins and character profoundly different from that philosophes and levelers take them for.

In the book that Rosenau characterizes as having as its "entire objective" to argue against natural law, Burke talks about the "permanent reason" and "the steady maxims of faith, justice, and fixed fundamental policy" which are "perfectly intelligible and perfectly binding upon those who exercise any authority, under any name or under any title, in the state."

He repeatedly refers to "original justice," "eternal justice," "natural equity," the "natural order of things," the "natural course of things," the "principles of natural and legal equity," " justice, the common concern of mankind," the "natural sense of right and wrong," and criticizes the Jacobins for their "usurpations of the prerogatives of nature," and their "contempt of this great fundamental part of natural law."

Burke did not deny the natural law; he championed it. What he attacked is the attempted implementation of the natural law based on the articulated rationality so valued by the French Revolutions who, instead of acknowledging reason in is proper place, instead exalted Reason as a goddess. His problem with Robespierre was the conceit that held that men could behold natural law in the abstract:

But I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction.

Abstract natural rights "may and do exist in total independence" of human government, but the only means by which to know them, and the only form in which they can be installed is custom and tradition. This is what he means when he says that "their abstract perfection is their practical defect."

As Herberg puts it:

It is in man’s historical experience rather than in any abstract metaphysical scheme that we can hope to catch a glimpse of the underlying Natural Law as well as of the modifications it must undergo if it is to become operative in social life.

You can't approach Burke with the reductionism of scientific abstraction Rosenau seems to want to apply. This is exactly the kind of thing Burke is writing against. Like all great philosophers who are also poets, Burke should be approached with a sense discretion. There are bulls in a china shops more careful and discreet than Rosenau in his attempted analysis of Burke. Not that we were ever under the delusion that Rosenau was a practitioner of discretion.

To say that Burke was opposed to natural law betrays a serious misunderstanding of everything he was about. Rosenau would be better off returning to the subject of the phallic morphology of Philippine rodents, where he actually knows what he's talking about.

Is Internet access a human right?

That's what some people seem to think. In what sense is Internet access as a "right"?

I listened to this week to an interview on NPR in which a guest--some expert on the Internet--was telling the NPR interviewer that Internet access is a "right"--not just any right but a "basic human right."

This is just one example of the rhetorical inflation we have seen when it comes to rights language. What does it mean to say that Internet access a right? What is a right? And what is a human right?

It can only mean one of two things to say that something is a right. A right is either legal or metaphysical. If it is legal, then there ought to be some kind basis for it in a written statute or in some kind of case law. If it is a metaphysical right, then it ought to have some kind of rational or revelatory basis.

When you talk about "human rights" about the only thing you can mean is that it is a metaphysical right, since we can criticize written laws themselves for not complying with them.

So the people who say that Internet access is a "human right" are basically saying there is some metaphysical basis for it.

So why it is a human right? Because we like it? Is everything we like a right? Is it because it is good for us? Is everything that is good for us a "right"?

Notice that few of the people who say things like this actually give a reason for saying them, which is a pretty good indication that they don't really have one.