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Objective Foundations for Law

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By Dale B. Halling

April 16, 2017

 

Laws are the implementation of political philosophy and political philosophy is a subset of ethics.

Laws are the implementation of political philosophy and political philosophy is a subset of ethics. If a country’s political philosophy is an absolute monarchy then the law will be whatever the king (queen) says. If a country’s political philosophy is a theocracy then the law will try to implement the ideas embodied in the Bible or Koran or other holy book. If the political philosophy is a democracy unconstrained by a Constitution, then the law will be whatever the majority votes into law.

The underlying political philosophy of this post is Natural Rights (individual rights) as explained by Rand and Locke. This does not automatically lead to a constitutional republic or a parliamentary monarchy, however it says that the law is based on reason and can be found using reason. When people base law on reason it is called natural law. A subset of natural law is natural rights theory as articulated by John Locke and Ayn Rand. Locke’s ideas on natural rights were highly influential on the Founding Fathers and the common law generally. Locke’s influence on the common law was through William Blackstone’s Commentaries on the Laws of England, where he mentions Locke a number of times.

In the United States today and most common law countries there are two or three major competing political philosophies. The United States was founded on Natural Rights political philosophy, however the dominant political philosophy today is socialism. As a result, the law is a confused set of overlapping and contradictory rules.

In the United States today and most common law countries there are two or three major competing political philosophies. The United States was founded on Natural Rights political philosophy, however the dominant political philosophy today is socialism. As a result, the law is a confused set of overlapping and contradictory rules. Socialist political philosophy is not based on reason and individual rights, but on the “rights” of groups, equality of outcome, and most importantly the idea that the state is supreme. Conservative political philosophy is not based in reason or Natural Rights either, however conservatives may support some Natural Rights positions based on historical reasons.

When people hold different political philosophies they will interpret the same laws in different ways as we see with the United States Supreme Court. The U.S. Constitution was written with the assumption of Natural Rights and when socialists (confusingly called liberals in the U.S.) interpret the Constitution they come to absurd conclusions. For instance, in 381 U.S. 479 Griswold v. Connecticut (No. 496), Justice Stewart and Justice Black stated in a dissent that the ninth amendment was a truism.

The Ninth Amendment, like its companion, the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” United States v. Darby, 312 U.S. 100, 124

If the ninth amendment is a truism, then why was it written down in the Bill of Rights? Only a socialist could come to this conclusion.

The ninth amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Under the proper natural rights interpretation of the Constitution, the ninth amendment means that all natural rights are protected under the Constitution. For instance, the right to self defense (immediate) is not mentioned in the Constitution, but would be included in the ninth amendment. The right to work would be another right under the ninth amendment. However this would not mean that someone has to give you a job, it would mean the government cannot require licenses, fees, or put other impediments to peoples’ effort to do work.

Conservative justices are no better. A standard cry of the conservatives is something along the lines of where is “such and such” a right stated in the constitution. Think abortion or privacy or healthcare.

In the law the word “right” has many meanings and therefore can be confusing. A proper right is something that logically follows (directly) from the idea that you own yourself and is a moral and legal claim that a person can undertake certain actions. For instance, since you own yourself you own those things that you create, which is the basis of property rights.

Many people are uncomfortable with the idea of self-ownership or self-sovereignty, however both Rand’s and Locke’s (and the Founding Fathers) political philosophy incorporates this concept. Both provide differing arguments for this and I think Rand’s is superior, but both are better than the arguments against them. Note that while Locke invokes god, he also bases his argument in reason. Thus he does not rely on god.

1) Self-ownership is the concept of having exclusive moral and legal control over your own body and life.

2) Rand argues that each person has exclusive control over his body and life.[1]

3) Therefore Objectivism is a philosophy of Self-Ownership.[2]

This is a simple syllogism and does not lead to the idea of slavery. The right of self-ownership is inalienable and logically you cannot create a valid contract to sell yourself. A contract is a legally binding agreement between two parties. Since a slave cannot enforce a contract against their owner the contract would be invalid.

The opposite of self-ownership is that someone else has the legal and moral right to control your body and life, in other words, slavery.

When people hold different political philosophies they will interpret the same laws in different ways as we see with the United States Supreme Court. The U.S. Constitution was written with the assumption of Natural Rights and when socialists (confusingly caused liberals in the U.S.) interpret the Constitution they come to absurd conclusions.

Why do we need the law? Many anarchists argue we do not need laws, although they almost always fall back on contracts, which is law. Rand and Locke advance the same reason for the law. In a civil society with a proper government, the law is there to protect our individual rights and in return we give up the right to delayed retaliatory justice. “A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.”[3]

All law starts with property rights law.[4] Your property rights exist before and separate from governments. You cannot have contract law unless you have property rights in something to trade and property rights in yourself, so you have the authority to enter into a contract. You cannot have tort law without first having property rights in yourself or what would be the basis for complaining you or your objects you have property rights in have been harmed. The same is true of criminal law, estates, and all areas of law. Property rights law is foundational and the most important area of law in protecting all your rights. It is much more important than Constitutional law and the Founders recognized this.

“No other rights are safe where property is not safe.” – Daniel Webster

“No power on earth has a right to take our property from us without our consent.” – John Jay

“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.” – James Madison, Essay on Property, 1792

Ayn Rand also considered property rights law as being the most important in securing man’s rights.

Without property rights, no other rights are possible.

“Man’s Rights,” The Virtue of Selfishness, 94, http://aynrandlexicon.com/lexicon/property_rights.html

“There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. … —and the right to property is their only implementation.”

“Man’s Rights,” The Virtue of Selfishness, 93 http://aynrandlexicon.com/lexicon/individual_rights.html

The law is the implementation of political philosophy. Natural law and specifically Natural Rights are based on reason. Thus a reason-based approach to law will be based in Natural Rights. Under Natural Rights are rights are derived from the idea of self-ownership – that is property rights in one’s self. As a result, all law and rights theory starts with property rights law.

 

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[1] “There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his OWN life. … —and the right to property is their only implementation.”

“Man’s Rights,” The Virtue of Selfishness, 93 http://aynrandlexicon.com/lexicon/individual_rights.html

[2] Money rests on the axiom that every man is the owner of his mind and his effort. (For the New Intellectual, p. 89.

 

“What greater wealth is there than to own your life and spend it on growing?”

–Ellis Wyatt, Atlas Shrugged, Pt. 3 of book.

 

“For centuries, the battle of morality was fought between those who claimed that your life belongs to God and those who claimed that it belongs to your neighbors — between those who preached that the good is self-sacrifice for the sake of ghosts in heaven and those who preached that the good is self-sacrifice for the sake of incompetents on earth. And no one came to say that your life belongs to you and that the good is to live it.”

–John Galt, Atlas Shrugged, http://aynrandlexicon.com/lexicon/good,_the.html

 

“There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life.”

Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 93

 

Without property rights, no other rights are possible.

Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 94

[3] Ayn Rand Lexicon, The Nature of Government,” The Virtue of Selfishness, 109.

[4] There is no such thing as property.  You have property rights in things.  When we say something is property we are using short hand.  For instance, you have property rights in land, but land is not property.  As a result, I call it “property rights law” not “property law”.

 

 

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