Saturday, November 9, 2019

The American Theory of Rights: Not in the Social Contract, but in the Natural Law

James Otis might have become the foremost thinker of the Founding, except he was brained by a violent Tory in 1769, and frankly, was showing signs of mental problems before that.  But 'twas James Otis who got the intellectual arguments for the American vision of liberty off to a brilliant start in 1764:




"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."
This is the unique American theory of rights as expressed in the Declaration of Independence--the foundation of man's rights is "the laws of nature and of nature's God."

Here the erudite Otis makes the essential distinction between various "Enlightenment" theories of government and rights [Hobbes and Harrington, yes, even contrary to John Locke!] and the uniquely American vision--our rights come prior to government, we don't negotiate our rights with the government, or with each other:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Rights are prior to government, then
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

And some years later, in 1790, James Wilson---one of the few signers of both the Declaration and the Constitution, and a future Supreme Court justice, reminds his audiences [that included President Washington] in his lectures on law of just how the American view of rights differs from the British "contract" view of 1688, the supreme legal theorist William Blackstone and Edmund Burke, and even John Locke and the Magna Carta:

"But even if a part was to be given up, does it follow that all must be surrendered? Man, says Mr. Burke, cannot enjoy the rights of an uncivil and of a civil state together. By an uncivil contradistinguished from a civil state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone. 
...
And must we surrender to government the whole of those absolute rights? But we are to surrender them only -- in trust: -- another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?"

Here is the fatal flaw of "social contract" theory, the British understanding of rights and government according to Burke and Blackstone and Locke---We barter our natural rights with the government and receive "civil privileges" in return.

Wilson answers his own question, "Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution?"---a "social contract" with government...?

No!
At first, the stirrings of rebellion among the American colonists came from acts of Parliament abridging their "rights as Englishmen." But in the end, the Americans realized that even their "contractual" rights as Englishmen weren't enough---

 Rights reside in man, not in where a man resides.

This is the American way.

16 comments:

Our Founding Truth said...

How'd that turn out for you?

Jonathan Rowe said...

What about the notion that Reid and Hutchinson are the ones who deserve the credit. Wilson would have studied them. I don't know how imbibed Jefferson, J. Adams and Franklin who were chiefly responsible for the DOI's content were imbibed in the Scottish thinkers like Wilson and Witherspoon would be.

Our Founding Truth said...

I didn't see where it said Reid and Hutchison should get the credit. The reformation and Aquinas, were before Reid, so whoever said that wasn't that knowledgeable about it. Natural law is no foundation anyway. It's all enlightenment liberalism.

Jonathan Rowe said...

This is the article that credits Reid and Hutchinson not Locke for the notion that rights are unalienable.

https://www.claremont.org/crb/basicpage/jefferson-locke-and-the-declaration-of-independence/

Tom Van Dyke said...

I do want to make clear here that the purpose of my essay is to delineate the difference between the American theory of rights and the British one, as manifest in their actual politics, not their academic philosophy.

The academic philosophy part is interesting, and I'll touch on it in my next comment, but America was built by men like Jefferson and Franklin and Washington and the rest, and their political philosophies, not their abstract theories, is what should occupy us foremost.

The rest are footnotes to history. That said, see below.

Tom Van Dyke said...

This is the article that credits Reid and Hutchinson not Locke for the notion that rights are unalienable.

"Why did Hitchens minimize the important differences between the Declaration and Locke on the meaning of “self-evident,” on property as the basis of our rights, and about “unalienable rights” occupying the space of “property”? Like so many other thinkers, he bypassed the American Enlightenment, which had deep roots in the Scottish Enlightenment.

To understand the Declaration’s “self-evident” we first need to turn to the Scottish Enlightenment philosopher Thomas Reid (1710—1796), who made self-evident truths the foundation of his philosophy of common sense realism. Reidian common sense is the faculty whereby we can grasp self-evident truths, thus making human understanding possible. “The same degree of understanding which makes a man capable of acting with common prudence in the conduct of life,” he wrote, “makes him capable of discovering what is true and what is false in matters that are self-evident.” The self-evident truths common sense grasps are principles implicit in our conduct. For Reid, self-evident truths are true and discoverable by us because of human nature’s constitution."


Franklin and Hume figure in. Contra Curry, Excitable Andy Sullivan:


https://www.theatlantic.com/daily-dish/archive/2008/01/-self-evident/220687/

"Well, I don’t know if Jefferson was too inexperienced, but he didn’t write that phrase--at least, not exactly. Franklin did. This quote from Walter Isaacson’s "Benjamin Franklin: An American Life":

“On June 21, after he had finished a draft and incorporated some changes from Adams, Jefferson had a copy delivered to Franklin, with a cover note far more polite than editors generally receive today. "Will Doctor Franklin be so good as to peruse it," he wrote, "and suggest such alterations as his more enlarged view of the subject will dictate?"

Franklin made only a few small changes, but one of them was resounding. Using heavy backslashes, he crossed out the last three words of Jefferson’s phrase, "We hold these truths to be sacred and undeniable" and changed it to read: "We hold these truths to be self-evident."

The concept of "self-evident" truths came less from Jefferson’s favored philosopher, Locke, than from the scientific determinism of Isaac Newton and the analytic empiricism of Franklin’s close friend David Hume.

Hume had distinguished between "synthetic" truths that describe matters of fact (such as "London is bigger than Philadelphia" ) and "analytic" truths that are self-evident by virtue of reason and definition. ("The angles of a triangle equal 180 degrees" or "All bachelors are unmarried." ) When he chose the word "sacred," Jefferson had suggested intentionally or unintentionally that the principle in question the equality of men and their endowment by their creator with inalienable rights was an assertion of religion. By changing it to "self-evident," Franklin made it an assertion of rationality.”

Our Founding Truth said...

Scottish common sense is all Aquinas, no? And Witherspoon was a typical 18th century democrat. All they did was cherry pick reason over the scriptures and destroy the faith and Witherspoon was part of that rabble. Had Presbyterian apostates Reid and Hutchison known true natural law, they would have referenced Paul in Romans 2 like Aquinas and Hooker did.

Pertaining to us, TJ said he got natural law from the knowledge and sentiment of the day. If that's true, then its the majority viewpoint of natural law, not TJ's opinion that is established.

TJ didn't quote Reid or Hutchison. He lied, quoting Aristotle and cicero. The colonists didn't know them. It doesn't really matter; it's a weak foundation anyway.

manojmehra said...

This is such a great resource that you are providing and you give it away for free.
Go URL

jimmiraybob said...

Your link didn't work for me but I believe that this might be the cited source.

https://books.google.com/books?id=AhFDAQAAMAAJ&pg=RA1-PA35&lpg=RA1-PA35&dq=James+otis+Government+is+founded+not+on+force,+as+was+the+theory+of+Hobbes;+not+on+compact,+as+was+the+theory+of+Locke+and+of+the+revolution+of+1688&source=bl&ots=pEgvnNRZBv&sig=ACfU3U1ATBY12XKZF5fO_7Z7G2RGkiQukA&hl=en&sa=X&ved=2ahUKEwjO3sqelv7lAhUF7qwKHXZKBxIQ6AEwA3oECAgQAQ#v=onepage&q=James%20otis%20Government%20is%20founded%20not%20on%20force%2C%20as%20was%20the%20theory%20of%20Hobbes%3B%20not%20on%20compact%2C%20as%20was%20the%20theory%20of%20Locke%20and%20of%20the%20revolution%20of%201688&f=false

My apologies for not remembering how to do a shorter link.

Our Founding Truth said...

Natural law is a biblical concept1; in both testaments. The founding fathers rejected this principle by not inserting the theory properly into the founding.

They foolishly applied it open-ended by not enumerating the "laws of nature's God" into the founding documents.
Because they failed at this, anyone can invent any right they want, which is what u have today. Without the scriptures to guide, the doctrine is completely subjective and utterly worthless, doing more harm than good.

They didn't even proclaim the name of their God, which they knew. Instead, they used a classical word that most didn't know, thus alienating the people once more, not to mention ignoring the personal name of their messiah and redeemer, which they were supposed to be in relationship with.

As to the revolution of 1689 based on secular compact of locke sounds ridiculous. Otis wasn't a Christian anyway. It isn't strange that he would say that.

Tom Van Dyke said...

They foolishly applied it open-ended by not enumerating the "laws of nature's God" into the founding documents.

One of the flaws or at least difficulties with natural law theory is that it is very difficult to codify.

And FTR, Locke has a very ill-defined conception of natural law, in fact, it may be said he doesn't have one at all, although that didn't stop the Founders from reading one in.

https://thegreatthinkers.org/locke/commentary/lockes-doctrine-of-natural-law/

Our Founding Truth said...
This comment has been removed by the author.
Our Founding Truth said...

If I remember right, Locke quoted Hooker when he referenced natural law, and Hooker did not neglect God's word as the authority when speaking on the matter; unlike Locke. Even more so on a government document.

The ff's did neglect Christ on the matter. Who was their saviour anyway? Nature's God is not Christ nor Jehovah, the personal name of God. Not even 18th century Spain would have referenced the Lord in that manner. It's a travesty. 

Tom Van Dyke said...

Not true. The God of the Founders was indeed Jehovah. Even the deist Ethan Allen invoked him in his autobiography, and Jefferson suggested using the Pillar of Fire on the national seal.

https://books.google.com/books?id=5wrCR_9VWowC&pg=PA65&lpg=PA65&dq=Jefferson+suggested+using+the+Pillar+of+Fire&source=bl&ots=cLPIgt21uq&sig=ACfU3U1AB6lLYoO-hvLU8Hqnu1oStJlSvA&hl=en&sa=X&ved=2ahUKEwjFq8TC_IjmAhUsIjQIHdV1Av4Q6AEwC3oECAgQAQ#v=onepage&q=Jefferson%20suggested%20using%20the%20Pillar%20of%20Fire&f=false

Our Founding Truth said...

The God of the Founders was indeed Jehovah

Jehovah nor Christ was not the God written into the founding. Allen should have said Christ.

Tom Van Dyke said...

Our Founding Truth said...
The God of the Founders was indeed Jehovah

Jehovah nor Christ was not the God written into the founding. Allen should have said Christ.




Ethan Allen said Jehovah, as did George Washington. The facts are not on your side.