I am thinking through an outline for what might become a second “book,” of sorts. Something that might develop the arguments presented in the first book but also reflect how these have been further extended based on some of my writing since then. You can consider the title of this post as the working title of the book.
Following is the outline. I don’t know if each of these will be chapters, or if this will end up being the flow of what I will write. Those of you who have been reading here for sometime will be familiar enough with much of this that I need not explain what I am after in any of these topics. I ask for feedback – am I missing some steps? Does the logic flow?
1) Man is designed with a purpose, an end, a telos.
2) Liberty is found by living a life according to this end.
3) Living a life according to this end requires a law and ethics regime supportive of living such a life.
4) This law and ethics regime is what determines natural law
5) Man’s telos or purpose is beatitudo: fulfillment.
6) Fulfillment is found by living a life according to the Seven Virtues: four natural or cardinal, three theological
7) The cardinal virtues are: prudence, courage, temperance, justice; the three theological virtues are faith, hope, and love.
8) One cannot live a life of virtue – even if one chooses to ignore the theological virtues because they are theological – without displaying other-regarding action.
9) This, then, requires abiding by the Golden Rule.
Finally, to tie this back to a proper theory of punishment (for which the non-aggression principle is perfectly suited): The ethical regime and legal regime need not be identical: one can deny natural law theory of law but hold to a natural law theory of morality.
Therefore, formal physical punishment is ethical only for aggressive acts toward person and property. Non-violent transgressions of the natural law can only be dealt with through advice and counsel; ultimately shunning, if necessary.
I have asked someone who sees things a bit differently than I do (not much, but in some important ways), to comment on the above outline – including the final two paragraphs. After beginning with a statement that the forum in which we were having this discussion was not conducive to the deal with the depth of the topics, he offered several comments (edited):
1) I do not think Natural Law is based on a human telos at all. In fact, it is one of the gravest mistakes one can make to think so, as it leads to all kinds of utopian schemes which are bound to fail.
2) I see the basis for Natural Law as simply the requirement for humans to live in peace with each other. The minimization of human conflict.
3) This is exactly, by the way, what is reflected in "Life, Liberty, and the Pursuit of Happiness." Note it does not say "... and Happiness" but the pursuit thereof. Each person has to figure out their telos. I would agree many will head in the wrong direction, but it is not for others to decide, as long as in their search for telos, they don't mess with mine (the Silver Rule). In that sense I am very libertarian.
4) Being in favor of the Silver Rule, though, does not make one a libertarian in itself. I, for one, disagree that non-violent transgressions of the natural law cannot be dealt with by punishment.
a. I believe in intellectual property, for one,
b. I agree that people who fail to help people in immediate danger to life and limb even though they are in a clear position to help, ought to be punished even though they did not commit any violent act.
5) I also do NOT think NAP implies anarchy. On the contrary, it implies government. But that's a long discussion.
6) I also do not believe you can have a natural law theory of morals but not of jurisprudence (punishment). If a law is morally wrong, it is not a proper law. Period. The legal regime's legitimacy absolutely depends on it reflecting the natural moral law.
I did, of course, ask him for comment. As he did not want a reply in that forum, I obliged. However, I will deal with several of these now, in this current post.
I will start with item 6, because the way this is phrased is both contrary to my meaning and also likely leads to some of the misunderstandings evident in some of the other points raised. First, it is certainly possible to have a natural law theory of morals without a natural law theory of law. From The Internet Encyclopedia of Philosophy:
As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory of morality.
This can be seen in examples such as excessive alcohol or drug use, or prostitution – where one need not criminalize any of these behaviors, even though one would conclude these are violations of the natural law given my premise that it is built on the telos for human beings. It is also demonstrated by Jesus, in the example of the woman caught in adultery. The law commanded stoning for this offense, but Jesus instead offered advice and counsel.
Second, the statement in 6 has it exactly backwards to my intent: I am NOT suggesting laws that violate the natural law; I agree that if a law is morally wrong it is not proper law. I am suggesting that not all violations of the natural law need result in formal, physical punishment. That is, such violations need not be formally punishable via the civil (for lack of a better word) law – violations such as excessive alcohol abuse, etc.
So, to summarize my point here: from the universe of ethical behaviors and actions that accord with the natural law, it is proper that a subset of these is also incorporated into the civil law. To be clear, civil law cannot be derived from any source outside of or in conflict with this universe.
With this in mind, I am not concerned about building a utopia (item 1), as my framework does nothing more than criminalize natural law transgressions that violate the person or property of another. This, in my opinion, is precisely what the law should aim for. In this regard, item 2 is dealt with, as criminalization only occurs when a one disrupts the peace (person or property) of another.
For item 3, I certainly don’t mandate a uniform telos for everyone, albeit I do see moral teaching as uniform – certainly in the main (C.S. Lewis offered examples in support of this in the appendix of The Abolition of Man), and determined around the edges by the cultural traditions and norms of the locale.
Items 4a and 4b are worthy of examination. Regarding coming to the aid of another, the caveat must be added taking into account the potential risk for the one coming to the aid. Beyond this, it is for me – and at least for now – a gray area that I may or may deal with at some point.
Regarding IP, it still could fit within the NAP, depending on how you define the term “property” – the definition of which, around the edges, will largely be culturally determined. In any case, I have long felt that if such a regime can make its way into an order that is enforced strictly through private means, I find no disagreement here. Beyond this, I have found, in the past, debates on this matter exhausting.
Which leads to item 5: I use the word “governance” to clear up confusion. The NAP does not require “government” as that term is used today; however, any society requires “governance” – and to the extent such governance can be achieved voluntarily, the society will inherently be more civil. Hence, government as we know it leads to a very uncivil society. Governance, with intermediate layers, distributed, and to the maximum extent achieved voluntarily, leads to a more civil society.
As to the term “anarchy,” it really depends how one defines the term. If one means no state (a monopoly of legalized aggression), then the NAP implies anarchy. If one means no governance, then the NAP does not imply this. No society can survive without governance. Life among other humans requires this.
To summarize the picture in my head: civil law should address those offenses that violate person or property. This is the role of a proper government, and nothing more. (I will avoid here any discussion of voluntary means for defense, etc., as this is well secondary to my purpose in this conversation.)
Moral teaching and holding people accountable to this teaching – in accordance with the natural law and specifically violations of the natural law that are not also violations of another person or his property – is the responsibility of another institution – absolutely not the responsibility of the civil authority. I have long argued that in the West the only institution that both has played such a role and can play such a role is the church – broadly speaking, Christianity.
It could be the university, but this institution is further gone than is Christianity today – at least Christians still hold to the view that there is an authority above man, thus giving a means through which all men can be held to account.
Properly focused, Christianity can play this role again, but this is a topic for an upcoming post.