Look what they’ve done to my song, Ma

by John Quiggin on May 31, 2016

My discussion of intellectual property inevitably raised questions about my argument that property rights are not natural rights, but are socially constructed and, in the modern world, exist only as part of the legal structures created and enforced by states. The “moral rights” of artists over their creative works has been raised as a suggested counterexample. In fact, this example reinforces my original argument. Two cases arise, both of interest:

In the United States, the moral rights of artists were effectively unrecognised by law until accession to the Berne Convention 1989, and remain extremely limited. The result is that, once an artist has sold the rights to her work, she has no control over its subsequent use, unless she can make a case separate from moral rights, for example that use in an advertisement misrepresents the artist as endorsing the product. So, for example, it’s perfectly legal to use London Calling to advertise Jaguars, or to clip Fortunate Son to fit a jingoistic ad for jeans. Moral rights are widely recognised, and may generate social opprobrium for those who violate them (as with other misuses of property rights) but they have no legal standing.

In France and other European countries, artists have inalienable moral rights over their work, to prevent misuse of the work by the initial or later purchasers. This is not a property right, but a constraint on property rights. To the extent that moral rights are recognised after the fact, they constitute a taking from the purchaser of the property right. To the extent that they are recognised when artists sell rights to their work, they (like any restriction on alienation of property) represent a constraint on the property rights of the artist. Melanie Safka recognised this, in an ironic fashion, in her classic Look what they’ve done to my song, Mawhen she wrote

It’ll be all right ma, maybe it’ll be okay
Well, if the people are buying tears
I’ll be rich someday, ma

Coming back to the general issue, property rights and (perceived/socially accepted) natural rights have features that mean they tend to coincide in some ways and conflict in others. Most obviously, they are both associated with the general feeling of rightful possession, so that a system of property rights is more stable when it coincides with natural rights. On the other hand, natural rights are mostly perceived as inalienable and indivisible, while property in its ideal form is infinitely transferable and divisible. Moral rights for artists are a classical example of the clash between inalienability and unfettered property rights but the same clash arises at every point in the production process.

{ 52 comments }

1

Chris Bertram 05.31.16 at 6:14 am

2 points:

1. It seems to me that you are buying your success here all too cheaply John. Someone who believes that people have a natural moral right to something, such that taking that thing off them, using it in some way without their permission etc, constitutes theft etc, is hardly going to be impressed by being informed that the state often stipulates property rights that conflict with their moral rights. The kulak whose family has laboured on the family farm for generations and who is dispossessed by the state will call that dispossession theft. When the state’s lawyers point out that the law now says different, nobody is being informed of anything they don’t already know. The non-coincidence of legal property and moral rights over stuff isn’t going to be news to your opponents, it is something of which they are all too keenly aware.

2. “This is not a property right, but a constraint on property rights. To the extent that moral rights are recognised after the fact, they constitute a taking from the purchaser of the property right.” It looks to me as if these two sentences contradict one another. In the “taking” case we have a transfer of rights over some of the incidents of property from on person to another, i.e. a property right (or it wouldn’t be a “taking”). Given that this is how you think of the ex post case, it seems inconsistent to deny that that what you call the “constraint” case also represents an enduring property right in some of the incidents of the bundle.

2

John Quiggin 05.31.16 at 7:50 am

Chris:
On 1: The example you give, and the one mostly thought of by left propertarians is one where the rightful property of one is given to another. There is disagreement over rightful ownership, but not over the definition of property. My point is that natural rights and property rights are categorically different. My right to my job, or to credit for what I produce is not a property right (unlike that of a C19 British army officer) and conflicts with the property rights my employer has, or would like to claim.

On 2, and relatedly: I may have misused the word “taking” here, if it is held to imply “giving to someone else”. The moral right gained by the artist isn’t the tradeable right to use property as you please that is taken from the purchaser. The artist can’t direct the purchaser to use the work in any particular way, merely veto uses that violate her moral rights.

3

Chris Bertram 05.31.16 at 8:11 am

I’m not convinced that you’re making points that go beyond the semantic (and the highly stipulative). Lots of property rights have limits as to tradeability: example, tickets marked as “non-tranferable”.

4

ZM 05.31.16 at 8:46 am

Well I don’t think the artists have full moral rights to their work if their work is about anyone else’s life, and neither do the companies.

I now have songs, film clips, miscellaneous promotional material, and 3 books that refer to me over an 18 year period, which I never agreed to. I wasn’t even asked or informed about it.

I am going to get all of these withdrawn from sale, since I never agreed to it. The artists and companies moral rights to these works is NIL. I was never asked, I was never told, and I was never offered a contract which I could decline to sign, like Kim Kardashian.

When it is rich people like Paris Hilton and Kim Kardashian who can afford top tier entertainment law firms, the entertainment companies ask them in the first place, specific what they are being asked for, pay them millions of dollars, and offer them a contract they can decline.

When it is me, I never got asked, no one ever told me, I only got proof in 2014 after Joanna Newsom and Bill Callahan made me have a break down in late 2005, many artists tried lying in 2015 and 2016 after I got proof in 2014, apart from Stephen Malkmus (Happy Birthday for yesterday Stephen Malkmus!) and a few others like David Grubbs who works at CUNY.

I haven’t got a reply from the American government, and whoever I phone tells me they aren’t the right person to take my call. This is very expensive for my phone bill.

The UK Department of Culture first told me to get legal advice, but I have tried small firms and they say the issue is too big and complicated for them, I have tried personal injury law firms and they say too many other legal issues are involved, and when I email top tier global entertainment law firms they don’t want to represent me, even though I want to get all these products and promotions withdrawn from sale and legal circulation, and damages. Then I was told to wait for 20 days to get a reply from the UK Department of Culture, but it has already been more than 20 days, but the telephone operators wont put me through to anyone in the department. I have now written to the Scottish Government too, maybe they will help me since 2 of these parties are in Scotland, Alasdair Roberts and The Trembling Bells. But Nick Cave is about to release a new record, so he better not be writing about me again. I wouldn’t have to worry about this if the UK Department of Culture had already helped me.

The Police Minister in Victoria has referred the matter to the Police Comissioner and now at last a police investigation has started, but these artists have lied many times to the media over the years, so I am sure they will try lying to the police. I am pressing charges for stalking by multimedia and the internet, as well as a couple of other laws I found.

The Creative Industries are not regulated enough. They make representations of real people and places and things, they do not have any absolute rights to these representations — because what about the real people’s rights to be free from stalking and harassment?

There should be human ethics procedures like at universities for work that involves or represents humans. There should be legislation that requires companies to act on complaints by people who are represented in products and promotions. They should be like other workplaces where people can’t harass or bully co-workers, or employees, or customers. They shouldn’t be able to sexually harass women, in normal workplaces you are not allowed to sexually harass women. There should be a regulatory body which people like me can complain to and staff investigate complaints against artists and companies.

I think the artists who represented me don’t have rights to any of these products and promotions, since they represented me without my permission for 18 years.

They also stole intellectual property developed by me and my friend when we were teenagers from 1996-1998 — from our Pavement Sitcom and related concepts etc.

I think the right to make representations of me is up to me to consent to or not to consent to, like Paris Hilton and Kim Kardashian got asked and provided with contracts.

People and businesses in the Creative Industries can’t just make products and promotions representing me for 18 years without my consent.

The laws regulating the Creative Industries need considerable reform.

Artists who are contractors have moral and legal responsibilities as well as rights, and Creative Industries companies have moral and legal responsibilities as well as rights too — these should be set out clearly in legislation and regulations.

If all these artists kept these representations of me in their cupboard at home, I would still think this was in most cases very weird and obsessive if I found out when they died and people opened their cupboards to find years worth of art representing me, but they didn’t keep them in cupboards at home — they sold them, or used them as promotions, around the world. And I was never asked, and I wouldn’t have agreed if I was asked.

5

Brett Dunbar 05.31.16 at 10:35 am

ZM @ 4

I’m fairly sure that the material isn’t about you. You are getting nowhere because your case is obviously unfounded. The references to you are not apparent to anyone else, mostly as it doesn’t exist, which means it cannot be defamatory.

6

Adam Roberts 05.31.16 at 10:37 am

In the UK it used to be the case that moral rights of authors/artists had to be asserted, and that if (for instance) the copyright page of a n0vel happened not to include the ungainly phrase ‘the moral rights of the author have been asserted’, then those moral rights were not in play. This always puzzled me greatly, because in other respects moral rights have always had the attributes of inalienable rights — so, for example, an author may sell or give away her copyright, but can’t do that with her moral rights. I suppose, looking back, it was an attempt at framing a compromise to bridge the clash you talk about in your last paragraph. (As it now stands, the law in the UK has changed, and the author no longer needs explicitly needs to assert their moral rights on the artwork).

7

Glen @ APL 05.31.16 at 10:49 am

In an ideal world, property would have the nuanced and compassionate laws that moral rights offer artists in Europe, but when it comes to big money and ‘property’, that’s a wishful thought

8

Placeholder 05.31.16 at 12:02 pm

The French Parti Socialiste managed to expropriate the author of the century-old Communist anthem ‘L’Internationale’ until 1922 by getting his brother to claim the royalties. It didn’t leave copyright until 2013.

9

ZM 05.31.16 at 12:07 pm

Brett Dunbar,

I have already discussed this with you. I offered to email you the 20 page email I wrote to the Minister for Police with more details, and you didn’t ask for it. If the Police Comssioner decided there is grounds to start a police investigation on the basis of my emails with more details than I can provide here, then I have grounds for what I am alleging. It is stalking, once I point out this material is stalking me, then people see that it is about me, and it is defamatory. I think it will take about 5 years to resolve legally, I hope not longer.

10

MPAVictoria 05.31.16 at 1:07 pm

ZM as someone who has struggled with mental health issues and is married to someone who struggles with them please consider talking to your physician. I think you would benefit from a neutral third parties support and assessment of your mental well being.

Peace and Strength Brother/Sister

11

ZM 05.31.16 at 1:49 pm

MPA Victoria,

Thank you for your concern, but I do have mental health support workers, I see a psychiatrist regularly, I take medication regularly, I see a counsellor to talk to about this, and I also see a student safety and wellbeing worker at university in light of these people continuing to stalk me. There is a current police investigation into this.

12

Bartleby the Commenter 05.31.16 at 1:59 pm

“Thank you for your concern, but I do have mental health support workers, I see a psychiatrist regularly, I take medication regularly, I see a counsellor to talk to about this, and I also see a student safety and wellbeing worker at university in light of these people continuing to stalk me. There is a current police investigation into this.”

I am really glad to hear that ZM. Best of luck.

13

ZM 05.31.16 at 2:04 pm

Bartleby The Commenter,

Thank you!

MPAVictoria,

“Peace and Strength Brother/Sister”

Thank you. You too :-)

14

L2P 05.31.16 at 4:47 pm

The underlying problem is that we disagree, and always disagree, about the property over which we have a “natural moral right.” Distinguishing between a “moral” right to property and a “legal” right to property doesn’t really help when we don’t know agree over what moral rights somebody has.

Libertarians like to use the example of land, like Chris does with the Kulaks. But it’s more interesting to talk about water, especially since land is basically valueless without water. People don’t tend to have a sense of “moral rights” to water, other than “I should have some.” They might be sympathetic to a farmer who has his land taken to make a shopping mall, but there’s a lot less sympathy to a farmer who has water rights taken away so that a shopping mall can have drinking fountains. Farmers often don’t even bother making “moral” arguments about water rights, and rely solely on enforcing various legal doctrines that protect them.

If you start with something like property rights to water rather than land, it becomes a lot more clear that moral rights and legal rights to property are completely different and somewhat arbitrary.

15

TM 05.31.16 at 5:59 pm

John: “a system of property rights is more stable when it coincides with natural rights”

I’m confused. If property rightg are not natural (which of course they aren’t), how can they coincide with natural rights?

Chris: What is the “kulak whose family has laboured on the family farm for generations” supposed to prove? Nobody that I know of advocates for making property rights to land conditional to having labored the land for generations. If they did, very little land would be recognized as property.

16

The Temporary Name 05.31.16 at 6:28 pm

Just because…

http://boingboing.net/2016/05/31/german-court-hands-kraftwerk-i.html

Today, Kraftwerk lost its vindictive, 19-year-long copyright suit against Sabrina Setlur, whose 1997 song “Nur mir” looped a drum sequence from Kraftwerk’s 1977 “Metall auf Metall.”

The court found that sampling had helped create hip-hop music, and held that if a sample’s effect on the rightsholder’s usage rights is “negligible, then artistic freedom overrides the interest of the owner of the copyright.”

17

Chris Bertram 05.31.16 at 7:36 pm

@TM it isn’t supposed to prove anything, it is supposed to be an example of a person who is likely to call state seizure of their property “theft” and who will be unimpressed by a conceptual or linguistic refutation by a state lawyer. If you’d prefer a different example, then make up your own.

18

TM 05.31.16 at 8:59 pm

“it is supposed to be an example of a person who is likely to call state seizure of their property “theft””

Ok but how is it related to the question of whether property rights are natural?”

“If you’d prefer a different example, then make up your own.” What relevance does my or your preference for this or that example have?

19

JW Mason 05.31.16 at 10:07 pm

artists have inalienable moral rights over their work, to prevent misuse of the work by the initial or later purchasers. This is not a property right, but a constraint on property rights. To the extent that moral rights are recognised after the fact, they constitute a taking from the purchaser of the property right.

This seems exactly right.

Here’s a weird thing about IP debates: People act as though “the rights of artists over their creations are very important” logically implies “artists should be free to sell all their rights over their creations.” No one says that the if we really cared about voting rights we would let people sell their votes. No one says that if we were consistent opponents of involuntary slavery we would let people voluntarily sell themselves into slavery. There are people who say that workers’ rights include the right to work for sub-minimum wage, in unsafe conditions — but most of us recognize that those people are opponents of workers rights in any substantive sense. But somehow in the case of IP it’s taken for granted that alienable rights are better than inalienable ones.

20

Moz of Yarramulla 06.01.16 at 1:37 am

But somehow in the case of IP it’s taken for granted that alienable rights are better than inalienable ones.

In some cases it’s because people have thought through the implications. The “taking” problem doesn’t stop anywhere, it’s perfectly possible for a creator to assert a moral right to prevent me using my phone to take a photo of any non-white person, because in the view of one of the creators of some part of the phone, such a photo would be expropriation or exploitation. That “moral right” might be regarded as nonsensical by most, but it’s tricky to frame moral rights such that they include the obviously necessary (I can’t buy and burn a Stradivarius violin, say) without also covering the inane (I can’t use a particular toilet brush to clean toilets).

The cross-over between “what is art”, the design skills to make a useful object that is also aesthetically acceptable, and the modern need for a huge volume of newly designed things, makes the whole “moral rights” issue a quagmire. If those rights are inalienable it just makes the whole situation worse (not least because we also have to deal with the lack of any meaningful rights for many creators – if “moral rights” are important, where do human rights like food clothes and shelter fit?)

21

John Quiggin 06.01.16 at 4:02 am

TM @14 “I’m confused. If property rightg are not natural (which of course they aren’t), how can they coincide with natural rights?”

In general, the two coincide whenever the owner of a given object (or idea) under the property system is the same person as the one who has (or is perceived to have) a natural right to it.

I don’t know that I can do a really good example, but I’ll try. Suppose I’m a fisher, using nets I’ve made myself, working waters where there are lots of fish. Then (for lots of readings of rights), I have a natural right to the fish I catch. A property rights system that gives me the rights to the fish I catch will be seen (by many) as more legitimate than one that gives the rights to some other person, and will therefore be more stable. (It will also line up incentives in the “right” way, but that’s a somewhat separate point).

22

J-D 06.01.16 at 4:44 am

ZM @4

‘I haven’t got a reply from the American government, and whoever I phone tells me they aren’t the right person to take my call. This is very expensive for my phone bill.’

If I were in your position, I would try writing to the US consulate and asking them to tell you which is the right part of the US Government to contact. I have never tried this and don’t know that it would work, but it could be worth trying. If you don’t get any answer to your letter (or email), you have the option of ringing the consulate to follow up, which would be much cheaper than ringing the US.

(I did succeed once in getting an answer from the Polish consulate — now that I think of it, it may have been the embassy rather than the consulate — to a Polish-government-related question I had; it was easy, whereas trying to contact Poland would have been hard.)

23

Chris Bertram 06.01.16 at 7:26 am

@TM it has relevance to whether this kind of stipulative semantic reorganization of the territory will solve any actual disagreements.

24

Chris Bertram 06.01.16 at 7:28 am

@JWMason yes indeed. As Jerry Cohen remarks somewhere, if you are unfree to do something, you can’t be forced to do that thing, so laws that prevent you from doing something can be very useful in protecting you from people who want to force you to do that thing.

25

Chris Bertram 06.01.16 at 8:06 am

@JohnQ “On the other hand, natural rights are mostly perceived as inalienable and indivisible, while property in its ideal form is infinitely transferable and divisible.”

Just thinking about this sentence, at least the first part. I see you have a “mostly” qualification in there, but still. Perhaps the most popular versions of natural rights theories of property are Lockean ones. Under Locke’s theory, if I have mixed my labour with previously unowned land, leaving enough for others, then I have acquired a natural (pre-institutional) right in that land. But I’m then free to sell it, rent it out for some specific purpose, and do all manner of things that involve alienablity and divisibility. So I don’t think this claim is right as a characterization of Lockean natural rights.

26

Peter T 06.01.16 at 9:42 am

The categories here are too large to support the argument. “Natural”, “legal”, “mostly perceived as inalienable and indivisible” etc. It’s like arguing about what constitutes the Good, True and Beautiful. Propertarians mistake a social category for a “natural” one, and the post seems to be contesting them on their chosen ground. “Social” does not mean “legally constituted by states”, for the law is often in the business of adjusting itself to changed social realities even as it is also in the business of codifying and adjusting those realities.

Empirically, people can do and do feel that some property “naturally” belongs to themselves as individuals, to the family or some other group as a whole, or even to the nation as a whole (see the recent uproar in Egypt when the government ceded some islands to Saudi Arabia). They may see such property as inalienable or alienable only on condition, and they may see various rights in the property as divisible or not – again as a matters of natural right . I can produce examples of all of these. It’s a long continuum across a large conception, with clear and well-adjudicated law towards one end.

So moral rights in IP, even applied retrospectively, are no more than the law doing its usual job of clarifying an area that had come into greater focus through contention. It’s not so much a taking as an a judgment – the artists and the owners of the IP differed on what their rights were, and the issue was settled (for now) , but differently in different jurisdictions.

Even in your fish example, your right to your catch may be qualified by obligations to tithe, to support your family, to throw back under-size fish and not to harm the seals sacred to the sea-goddess. Humans are socially-constructed beings; there’s precious little you can unequivocally call yours and yours alone.

27

Neville Morley 06.01.16 at 10:06 am

Partly because I’ve done some historical research on the theme, I think there’s mileage in L2P’s suggestion that discussions of water rights could be fruitful – not least because there have been such different conceptions of the inherent problems and plausible solutions in managing conflict between ‘rivals’ (from the Latin rivales, meaning those who have properties adjoining the same river and hence are likely to run into conflict). Most legal discussions focus on rights to use water, extract it, lay pipes across someone else’s land in order to extract it; water is not conceived as something that can be owned. But there are interesting distinctions between water conceived as a natural right and/or a communal resource, hence restrictions on anyone taking so much that others are deprived (or that the state’s interests in keeping waterways navigable are affected) and water conceived as a superabundant natural resource so anyone can take as much as they like even if that results in damage to someone else’s ability to enjoy such a right.

28

Chris Bertram 06.01.16 at 11:41 am

@PeterT (with apologies for further commenting on @johnq’s thread). As I’ve said in other places, the use of natural/social as mutually exclusive categories in debates in this area is somewhat problematic given than we’re a species that is social by nature.

29

TM 06.01.16 at 12:08 pm

20: I thought your argument was that there are no natural property rights. Now you seem to be saying that property rights can “coincide” with natural rights when the property owner has a “natural right” to the property. Sounds tautological and seems to leave open the possibility of a system of “natural” property rights.

CB 22: An argument is insufficient because there are some people who won’t be convinced by it? Okayyy, let’s stop debating philosophy or politics or any other topic ;-)

25: “Even in your fish example, your right to your catch may be qualified by obligations to tithe, to support your family, to throw back under-size fish and not to harm the seals sacred to the sea-goddess.” Not to mention that the fisherman might have no legal right to catch fish in the first place.

30

TM 06.01.16 at 12:18 pm

As a further observation: one can argue that the expropriation of the kulak is unjust without resorting to a “natural rights” argument. Such an argument would depend on the circumstances and the consequences for the people affected and society at large. Once can also advocate a legal framework of property rights in which expropriation is only possible under limited and exceptional conditions, without resorting to a “natural rights” argument.

31

Chris Bertram 06.01.16 at 2:52 pm

@TM, an argument is insufficient if it gives nobody good reason to change their view.

32

Yankee 06.01.16 at 4:49 pm

There’s a story about the post-impressionist painter Pierre Bonnard … late in life he decided that the yellow in one of his earlier works was not the right tone, and he attempted to retouch it as it hung in a museum (in ?France?) … he was forcibly prevented. I bring this up as a corner or trolly problem. When does the artist’s right to develop his property lapse?

33

Peter T 06.02.16 at 4:40 am

Chris @27

Yes we are inescapably social. My main point is that “property”, “natural right” and associated terms are too wide to be analytically useful.

34

TM 06.02.16 at 8:09 am

Chris 30, that’s not what you have argued. You have given an example of somebody who won’t change their view. That’s why I asked what that example is supposed to show – it shows nothing. Also 29 shows that your example is irrelevant even on its own terms because it doesn’t depend on natural rights.

Anyway this is a waste of time. The theory of property as a natural right is nuts and those who espouse it are rarely receptive to rational argument. I can only regret the intellectual energy that is wasted on unproductive arguments around here.

35

reason 06.02.16 at 10:01 am

TM
I’m on your side with this, but I think the argument has to do (as it so often does) with the ambiguity of words rather than any real disagreement. “Natural” rights aren’t natural, that is just advertising. If we used the words “emotional rights” it works much better.

36

Chris Bertram 06.02.16 at 2:49 pm

“I can only regret the intellectual energy that is wasted on unproductive arguments around here.”

Give me your bank details, and I’ll arrange for a full refund of your subscription.

37

Paul Davis 06.02.16 at 6:30 pm

@31: an argument is insufficient if it gives nobody good reason to change their view.

As judged by the provider of the argument? The consumer of the argument? You? What’s the difference between “I reject your argument because it contains no good reason for me to change my mind” and “You argument contains a good reason for me to change my mind but I have a better one not to” ?

38

John Quiggin 06.03.16 at 12:13 am

My main point is that “property”, “natural right” and associated terms are too wide to be analytically useful.

It seems as if any general concept is open to this criticism. In the first para, for example, I refer to art, modernity, legal systems and the state, all of which are open to the same objection (in fact, I worried about that there would be a dispute about “modern” and “states”)

Can you give examples of the kinds of terms you think are narrow enough to be useful, while allowing discussion of the issues raised in the post and comments?

39

ZM 06.03.16 at 3:12 am

My understanding of natural law is that its distinction from regular law is based on regular law being of a particular jurisdiction, but natural law are laws found everywhere, and therefore natural.

This is from Roman times, so I don’t know what size area was surveyed to find the natural laws, possibly Europe, the near Middle East, and Northern Africa seem likely, but I don’t know if they went further afoot than that to work out natural law.

40

Peter T 06.03.16 at 3:18 am

JQ

Fair point. Partly its a matter of context – “legal systems”, for instance, would be different things in an anthropology text rather than a discussion of the role of the modern state. I take your “states” to be modern states, with their formal legal apparatus, statute law and so on. Since your argument is about the kinds of property that yields rents (real estate, IP and so on) and the match between customary understandings around of some this sort of property and the formal legal regimes governing it, you might be better framing it as just this. This might then allow a discussion of the different rights allocated by custom and those established or developing in law without getting into arguments with propertarians.

41

ZM 06.03.16 at 8:04 am

J-D, thanks for that :-) I spoke to someone at the US embassy and she said she would try to find the right contact in the Department of Justice for me.

42

reason 06.03.16 at 9:04 am

ZM
” but natural law are laws found everywhere, and therefore natural.”
Name just one. I’m almost certain I can find an exception.

43

ZM 06.03.16 at 9:45 am

reason,

I have summed up the history of natural law, mostly from Encyclopaedia Britannica, unless otherwise noted.

I numbered them all so you can decide which ones you think are natural laws, or whether you think there are no natural laws at all.

I guess one problem is that maybe a jurisdiction goes through a state of bad rule, and natural law is not obeyed, so I think jurisdictions at periods of bad rule do not contribute to what constitutes natural law.

Taken from Roman Jurists these two seem okay —

1. Self preservation
2. Love of offspring

(From The Catholic Encyclopaedia — “Among the Roman jurists natural law designated those instincts and emotions common to man and the lower animals, such as the instinct of self-preservation and love of offspring.” )

Aristotle seems completely wrongheaded (unless you are Thomas Jefferson maybe) —

3. The subordination of women to men
4. The subordination of slaves to citizens
5. The subordination of barbarians to Hellenes

(From Encyclopaedia Britannica “[Aristotle] drew his examples of natural law primarily from his observation of the Greeks in their city-states, who subordinated women to men, slaves to citizens, and “barbarians” to Hellenes.”)

The Stoics conceived of a Law of Nature which was egalitarian compared to Aristotle, but was very stern and emphasised virtue which influenced Roman Jurists and St Paul —

6. Live according to nature
7. Nothing incorporeal exists
8. Virtue is good, vice is evil, there are no degrees in these
9. Everything else is indifferent, and there are degrees here
10. Suicide is permissible
11. Pleasure is not a good
12. People are either wise or fools, and nothing in between, Socrates is a fool, and Diogenes is wise

From Internet Encyclopaedia of Philosophy

St Paul had the idea of a law natural to the Gentiles. St Augustine developed this saying men lived according to natural laws before The Fall. Gratian followed on from St Augustine —

13. The Golden Rule “In everything, do to others what you would have them do to you. . . .”

St Thomas Aquinas systemised this —

14. The law of nature is “nothing else than the participation of the eternal law in the rational creature” , and can be formulated such as:
15. The preservation of one’s own good
16. The fulfillment of “those inclinations which nature has taught to all animals”
17. The pursuit of the knowledge of God

Thomas Hobbes also saw the state of nature following from innocence before The Fall, and conceived of Natural Law and Natural Right —

18. The right of nature (jus naturale) is “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,”
19. The law of nature (lex naturalis) is “a precept or general rule found out by reason, by which a man is forbidden to do that which is destructive of his life.”

John Locke said free men in society all followed the law of nature anyhow and don’t worry and fret so much Hobbes

Rousseau said the law of nature was pre social and followed by savages, and goes back to the basics —

20. Self preservation
21. Compassion, being “innate repugnance to the sufferings of others”

In the 19th C everyone got very confused, and thought maybe there were no laws of nature, men just made up laws, maybe from idealism like Kant, or utilitarianism like Bentham. Then there was Hitler and Nazi Germany, and after that people went back to thinking there must be laws of nature and what happened in Nazi Germany was against natural law, and human rights became the terminology used

22. The State should not mass murder people based on religion, ethnicity, sexual orientation, (dis)ability
23. All humans have certain inalienable rights http://www.un.org/en/universal-declaration-human-rights/

http://www.britannica.com/topic/natural-law

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Peter T 06.03.16 at 10:35 am

ZM

Go through this, strike out any are that purely local (“women are subordinate to men”, and any that rely on such categories as “the good”, “the rational” or “virtue” and see what’s left. Your list concedes reason’s point.

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ZM 06.03.16 at 11:06 am

Peter T,

I disagree, I think the list is a reasonable summary of the idea of natural law (all cribbed of course). I said Aristotle’s ideas were wrongheaded.

There are some that I think are pretty universal like self preservation. There are various versions of caring about other people (caring for offspring, the golden rule, compassion) which I think are reasonably universal as virtues.

There is a basic idea (epistemological? ontological?) common to most of these, that there is some sort of absolute morality.

And as you see the history of the idea of natural law, you see what happens if you argue that there is no natural law, in that it leaves you without grounds to make objections to something like the Holocaust.

I did put in a qualifier, that if jurisdictions succumb to periods of misrule, you can’t really use the laws of these times to work out natural law.

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Peter T 06.03.16 at 11:32 am

ZM

You miss the point, which is not that the core ideas are not “natural”, but that they are not law. “Self-preservation” is natural enough, but long-settled English law says you cannot endanger another life to save your own. “Caring for offspring” is natural, but plenty of places have permitted infanticide. The law is about what shall be regarded as right in particular circumstances, and how conflicts between various assertions of what is “naturally” just shall be resolved.

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reason 06.06.16 at 7:30 am

Peter T
Yes exactly, how exactly is “self-preservation” a law. Does it mean the starving have a right to steal food?

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reason 06.06.16 at 8:04 am

Or does it mean that condemned murderers should be given a weapon when they are due to be executed?

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Peter T 06.06.16 at 9:34 am

reason

I read a novel years ago, reputedly based on a true story, that featured a condemned man who killed the hangman (kicked him off the gallows). During the delay this imposed, evidence exonerating the condemned came to light. A judge considered whether he should be charged with the murder of the hangman and concluded not, on the very Hobbesian grounds that, while under sentence of death, he was outside society and therefore not bound by its laws. It all happened in Texas, of course.

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reason 06.06.16 at 9:37 am

Peter T
Like it!

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reason 06.06.16 at 9:39 am

Of course an enlightened society, thinking about the interaction of law and self-preservation would establish some sort of safety net and get of rid of capital punishment to stop the “right of self-preservation” from conflicting with their legal structure.

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reason 06.06.16 at 9:46 am

ZM
“There are various versions of caring about other people (caring for offspring, the golden rule, compassion) which I think are reasonably universal as virtues. ”

You probably aren’t a fan of Anne Rand then.

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