Non-essentialism in a Political Legal Order

The battle of ideologies between existentialists and essentials divides philosophers on the most fundamental properties defining topics on human nature and intrinsic value. Existential theory posits that there is nothing predetermined or allotted to humans, every choice they make changes their lives and everything is up to them because humans always have a choice. On the other hand, essentialists attribute some ‘essence’ that is in all humans from birth. For the sake of argument I will divide the two parties by the belief, or disbelief, in natural rights. The classical understanding of human nature posits that we have intrinsic value. It leads from the fact that we are all worth something in ourselves, to the fact that we then have rights protecting the properties, related to our worth, from other people. John Locke posited that we all have natural and imprescriptible rights, those inalienable by and human, government, law, or the like. In this essay I plan to bring to light the unknowns of intrinsic value or natural law, and in turn deny the deep-rooted principles of natural rights. From that refutation, we can draw very clean conclusions that the political order we have been rooted in for over 2 centuries has been based on false pretenses, allowing discrimination and denial of the duty men owe one another in being coexisting rational beings. I will show that ordinary and everyday examples directly disprove principles provided for us in The Second Treatise, in turn destroying the foundation on which Norms of Liberty and John Locke by Eric Mack lay. The state of nature in these three works is a universal, absolute, and naturally recurring state of men, under which none of the authors of the works above can defend under their ideals. I will, on the contrary provide a universal, historically transcendental position which will create an ideology for humans which promotes general welfare, societal flourishing, and tranquility of the people of all classes of this world not only now, but in states of peace, war, and anything in-between, and will provide a system of government which will adapt to the changing of societies that occur with the passage of time. This principle is the one that should be promoted and protected by the government of every society as well as by its constituents, and this is progress.

My predecessors above begin their claims with the undeniable existence of basic fundamental rights known as natural rights. These rights described include not only the individual’s unlimited and absolutely free allotment of life, liberty, and property, but also to the protection of these absolutes from other individuals. First we must discuss the father of these claims as written in the Second Treatise of Government.
As laid out by John Locke, he explains an obligatory law that governs the State of Nature is one of the principles that “no one ought to harm anyone else in his life, health, liberty, or possessions” . He derives these rights first from an all-powerful maker, but he knows better than to leave the argument at that, no doubt anticipating refutation based simply on this one principle. He also states, “we have the same abilities…so there cannot be any rank-ordering that would authorize some of us to destroy others” . We will simply deal with the second definition from him for the rest of this paper. The conclusion of the above quoted line is that there cannot be any rank ordering since we are all born the same, and what a claim! It is used as a fire and brimstone tactic connoting that if we do not all view someone else as being as good as us we are in some way allowed to destroy them, which is undeniably ridiculous. In a misguided reading these claims seem obvious and unquestionable and I agree! It would be a beautiful world if we had all been thrust into it with equal opportunity and the every means for greatness placed at our fingertips, but we can absolutely all agree to the connotations of these strong, and self-proclaimed, infallible words, however we do not have this luxury afforded to us. The connotations of this are; that we are all born with the same essence that prohibits the destruction of one another, but do these so called natural rights absolutely and undeniably lead to a political legal order protecting us from such? To find the problems in Locke’s statements we look to Jeremy Bentham, author of Anarchical Fallacies, for his claims against natural rights as laid out in the Declaration of the Rights of Man. He exclaims that all men being born free is “absurd and miserable nonsense!” and he makes a very crucial point in the problem of supplying a universal predetermined rule to people and, by default, government. In a world where so many are born into slavery, whether named as such or stuck under the palm of oppression and duress by intangibles such as money, power, and circumstance, which all play a part in the inequalities involving an indeterminable amount of people in this world. The dangerous words freedom and equality set up irreparable circumstance, to where any person at a disadvantage is indeed disenfranchised by these very words. When said in theory it promotes amazing pipedreams of a level playing field, when used in practice it produces quite an opposite effect. Deriving laws from natural rights directly tells people their circumstances are personally surmountable. They set up standards which disallow for any attempt at reparation taken by their own hand, but on the other end do not supply it themselves, though if their goal is to promote natural rights they must misunderstand their own words.

The above is simply not a practical way to look at people on the global level, if there were these natural rights that we could all exist under as an unwritten rule, there would be no confusion, but when you entrust a body that is a small percentage of the population to interpret and govern on the principles given above, you are doing a great injustice to the people of that society.
I do not want to give off the impression that I do not believe in human rights, because I absolutely do, but there is a difference between human rights and natural rights, there is a difference between believing that killing innocent people is wrong and believing it is because a right of equality we are all born with. Human rights are those created after the creation of government, natural are those said to exist prior to government. Natural rights are, put simply, the derivation of intrinsic value from the nature of morality, morality as being defined as distinctions between good and bad or right and wrong. These kinds of claims are ‘ought’ claims. Claims that we ought not to kill, steal from people, oppress, etc. are all claims of what we should not do, protecting people from each other, but the above authors’ attempt to take the things that people should not do, based on morality or a golden-rule complex, and use those to explain limits set universally upon all people past and future, ultimately fails. The danger in these claims is the unknown, the progression from morality to the legal sphere from the constraints of which we can never understand.
The problem is not people believing their peers are equal with them; it is that from these ‘oughts’ has emerged a political legal order that bases itself off of purely incapable or unjust means. Giving everyone rights that trump law is the most dangerous claim to a civil society especially rights to freedom that in turn battle against oppression. Those individuals, under the guise of unwarranted oppression, the collection of taxes, or the inability to have the same car as their neighbor will call out to dissolve the government for its injustices placed upon he, no doubt collecting other men throughout the society who feel the indiscretions of the government have become too costly to abide by any longer. This is the very framework for anarchy, a separation of men and state to bounds from which tranquility will never return. It is on this claim that I prepare my attack on the classical interpretation of a political legal system. Setting boundaries based on reason and reason alone, the same reason as my counterparts, however resulting in vastly different ends.
The point of a political order among classical liberal philosophers is solely to protect these basic human rights and do nothing else. These individuals lay out three words (life, liberty, property) and leave the rest up to interpretation of the powerful, no way to run a society.

I shall now look to the works of my three colleagues and explain not why their views of natural rights are wrong, but instead the fact that government both should and cannot be derived from them. John Locke attempts to answer injustices between classes by writing that “the injury and the crime is equal, whether committed by the wearer of a Crown, or some petty Villain”. But how many times we have seen this go awry! How often have men been sold into slavery from their birth, or placed under duress by circumstances ascribed to others. If equality under these rights is held paramount, it comes to present the understanding that the master would have the same rights to his slaves, and they equal and opposite over him. He would have no more right to force them to work as they would in return! If these so called rights protected all men in the same way, and it was the sole job of government to protect them, they would do away with dealings such as this and create the equality they hold above all, instead of turning away from the truth they deny exists. Eric Mack gives his understanding of how government comes into play, but he must make some serious distinctions if we are to accept natural rights as an adequate basis for law under his terms.
“This establishment [of government] involves two stages. The first is the creation of “political society” to which contracting individuals transfer their second-order rights to act as executors of the law of nature. The second is political society’s establishment of a governmental structure and selection of key governmental officers who are contractually bound to political society to preserve that structure and to serve the purposes for which political society is created.”

These second-order rights are the ones the government takes up to hold true our first-order rights (life, liberty, property). Keep in mind the construct of suicide to define these second order rights. It is said that nothing can trump our natural rights (first-order rights to use his terminology) but what about this claim? Mack claims that the government has these second-order rights, delegating them the power to actually preserve our lives for us, even though as written in his natural rights definition, we have freedom over both our property and our lives. To give imprescriptible and unalienable rights on one hand, and then force creation of a government which protects people from their own uses of these is nonsense and paradoxical. Mack believes in a stance, from reading Locke, that we all have what is called an “inborn constitution”. This holds that, “it is either our nature or our reason as it inspects our nature and identifies its normative implications that provides the content of the law of nature”. This claim does not sound to be outlandish in any rate, but we must read into the words for its implications. The way I read this is that our human nature, something unknown and multi-dimensional, which is defined by our rationality, identifies that we should create boundaries on ourselves that limit these absolute freedoms granted to us by natural rights. Mack is trying to make the jump that from natural law we should have a political legal order, that since “[natural] rights do not owe their existence to government, [and] their retention constrains all governmental activity; the function of positive law is merely to more finely articulate and enforce the law of nature.” This claim that men should only surrender enough of their rights to protect them is unclear and dangerous, no man should be forced of coerced into giving up freedom under the disguise that someone else will do a better job of it, that is why we create our own laws in society out of habit, as Bentham writes, not because of a universal predetermination like natural rights. My friends in Norms of Liberty define the role of government as an institution to promote and protect human flourishing by only protecting natural rights. I won’t argue that this is not an admirable quality that government should have, but I will argue that it is limited and closed minded, too much so in any instance of legal system no matter how thriving it may be. Rassmussen and Den Uyl argue from a stance of teleological eudemonism in which flourishing is the universal end of all men. Flourishing is a fantastic principle, but it is one of misguided circumstance in pertaining to something universal. There is no way to ascribe individual success and well-being to the construct of a society, be it a small group of friends or the Republic of China, if each man focused not on the collective and instead on self, the entire system would fail by default. The problem with this is that the government is not promoting anything, rather simply protecting people from each other, there is no level playing field allowed to reach an ultimate end (which in this case connotes that there can be some actualization of end when in fact it only allows death as its end) . The government should be a source of assistance in finding and reaching these subjective and agent-relative ends rather than placing limits on the sociality of persons whom it governs. Relying on the same principles that the men above derive natural rights comes the change from the norm, which is negative rights from natural law, to where we can see that human rights, though not a basis for the necessity of government, are an ‘ought’ for positive rights.

Human beings are primarily social beings, rely on one another for support, safety, security, and so forth from the day we are thrown into this world. We enjoy and expect this as children from our families, and in life from our friends, in turn paying it forward to the next generation. Our morality states that we as human beings should not harm one another, and placing others under any form of oppression absolutely violates this code that most of us as human beings live by. Neglect or standing by is just as bad as participating in the event, and protecting, rather than promoting, the welfare of disenfranchised and oppressed people is just as bad as forcing them into the situation, it is personally oppressing them. We as a society understand that some are born better off than others, this mere throwness into a lower situation is both oppression and duress placed upon the heads of our fellow man. Being social entails that we cannot survive, progress, or thrive in a world without one another; the acceptable destruction of one man is acceptable destruction of all men. Protecting the life and promoting the positive progression of all men, big and small, should be the ultimate goal of a political legal order.

Historically under a negative rights perspective, since we are born into radically different circumstances, we are forced to experience and grow in our lives through these limited ways. Just as the poor farm worker has a very little, if not indistinguishable, chance of becoming say an astronaut, the children of Bill Gates will never no what it is like to grow up on the streets struggling for food. The prince and the pauper example comes to mind, though they have switched places, it is not as if their mindsets have become one another’s also, they still go into the impoverished/rich lifestyle knowing what it is like on the other side, and having the formal education, or lack thereof, afforded to you is a quality not everyone has the opportunity of getting. This is where the natural rights theory has thrown any society that follows it into a pit of unending separation. Theorists and lawmakers have interpreted natural rights as an excuse for only respecting negative rights, keeping people away from each other as not to violate one another. From the attributed life, liberty, and property have come the declination of equality, because no man should be forced to give up any of these things, mainly property, to another man, not even to help promote their own. Out of this ignorant belief that all men are born free and equal in nature and under government has come the idea that everyone has the same opportunity. This ‘equal opportunity’ allows some to think that they are just better than others because they have made something out of this level playing field that others have not, and how lovely a thought that is, that the rich and famous are simply the people who used what they were given in a more ideal way, and the poor and downtrodden souls have pissed away their God-given chances. We must steer away from this idiotic idea! Our government as an example has idealized the notion of “promoting the general welfare” of its inhabitants, but in what way do negative rights promote anything? If anything at all they are simply protecting the people from feeling any sense of duty to his fellow man by supplying the notion that one man has just done better with what he was given, and that negative rights are all we need to form a progressive and flourishing society.

As I have earlier stated, the role of government of my colleagues listed above is to protect their natural rights, but as I have shown through example, there is no way that government can be built off of this power alone. The problem is not having a government that watches over and protects the people; the problem is the blinders we put on them keeping them from helping us to out true ends, which is not a moment in the road like self-perfection, or an ideological misnomer like flourishing. In fact, the real designation of our government has to be progress, positive social progress for all people. The saying that “you are only as strong as your weakest man” is exactly the situation we are in. With the gap dividing between the upper and lower classes throughout the entire world the radical change has to be made from where we are now. At this point, we are allowing for the developed people to continue on an upward path at exponential rates, while the opposite is happening in lower income classes and third-world countries alike. Progress is the one thing that we can derive from the only thing all human beings have separating them from animals, that thing is reason.

We will start this explanation with a few ground rules laid out. There are a few things that can be said definitively about human nature; one is that we are both reasonable and rational human beings. This distinction takes away unknowns in natural law, which are too subjective of claims to even attempt any understanding of. Humans are social beings, we need each other to survive in this world or any, no one man could survive on the earth alone, and therefore it is our reliance on others that keeps us alive, either directly or indirectly. We know this because we can rationally see how the depletion of humanity would result in an uninhabitable world, both because there are less people to cultivate the land, and less people to cultivate the people. Since people all have different understandings and levels or criteria of intellect, we much socially develop each other as progressing beings toward abstract revolutions similar to those in industry and technology.

PROGRESS
Progress must be the most highly regarded principle both of individuals in a society and those outside of it. This does not pertain to just one group of people, be it the low income or the most well off, the individual or the society, all of these deserve the same opportunity, promotion, and protection for progress under this new ideology. There are, as with any rule, exceptions and clarifications that must be considered in order to cancel out any criticisms and to make my claims air tight. Not every being by default has reason and rationality, there are cases in which differences of brain function arise, and we will not speak to these cases as being the makers/protectors of these rules, however they are still protected and encouraged in their pursuit of progress at the same level as any other man. There also comes the claim where man can act irrationally or outside the bounds of right-reason. We can develop rules for correct reason under the standard that it is 1) sound, and 2) relatable to progress. I say relatable to progress because that is what rational actions are, they are those that are indubitably good for the individual, both thought out and understood prior to the action. Though we must not simply leave it at this, there are actions that can, to the outside viewer, appear to be irrational, does that mean we can simply halt the individual from performing in such a way? Not as easily as some would like. There are actions, such as drinking a bottle of Jack Daniels to oneself, alone, that may seem irrational. There are, however, different interpretations of this act. One person could say they are destroying themselves instead of acting in the interest of progress, both for him and for society, and this is true! However, that very same action, drinking into a drunken stupor, could also be a search for inspiration that only inebriation could assist in actualizing, similar to the works of art done while intoxicated on different substances. In the latter case, the person would be done a grand disadvantage if they were to be limited from doing such, but the former makes a good deal of sense. In this I am explaining how two actions can take on two very different interpretations, and it is up to the government to decide where to draw the line, but going along now with personal ideology about alcohol or intoxication, but rather by going along the general and dynamic feel of society to whether or not each individual action promotes societies progress in each given event.
Next we ask what defines progress. Progress, simply, is the betterment of society. Now this has numerous different interpretations, which is the bane of all governments to this point. Some can say that it is monetary gain, some say technological advances, and others are for a big military and being a world power. Now none of these are wrong, but they are not finding the common denominator of each of these or even the ideals of a completely differently thinking ruler. The problem with each of these is that they do not rely on the individual in-itself; rather they rely on a collectivist principle that each person contributes enough above-average ‘things’ to create the façade of an advancing society. The individual is the most important thing in any society, no matter how big, it is not that if the society one lives in is advancing on paper it means that each person is progressing, rather it is that if each individual is progressing in-themselves then the society is positively changing. This is the most important distinction to understand in accepting the true construct of a world in which the individual is primary rather than the overarching image of society. The individual reflects itself in the society, but the society only masks the nature of each individual. Defined correctly, the nature of each individual should be of thriving, though in different ways, but nonetheless progressing. Since there are no two people exactly alike, nor can they be protected and promoted in the same way. The aim and goal of anything societal, be it law, ideology, protection, promotion, what have you, if to have each individual be recognized for their contribution, as a cog in the wheel of world progress, rather than an individual living in a society that is progressing. The highest highs cannot outweigh even the most miniscule low. I do not want the term ‘cog in the wheel’ to be interpreted in the wrong way, it is not that we are all working solely for societal progression; rather we are all self-minded individuals and though our progression is of the upmost importance, our positive movement can only help the overall feel of our society. The distinction of this comes in, something my colleagues have trouble combatting, which is when are these principles accepted and acted on by members of society, and in turn government and lawmakers.
All the time! Every single moment of human existence are these principles accounted for. There is no problem with the ‘state of nature’ as some call it; times of war, peace, and indifference mean nothing to progress, except in the cases of absolute misinterpretation of progress for the individual, rather problems would arise when the above stated gains are attempted. I will not be so naïve to postulate that there will never be war between people with different ideologies, but I will be firm in believing that between no countries, who follows strictly in terms of promoting progression, will there ever be quarrel over ideology or morality, if anything said countries will be led by leaders who are only interested in power for themselves rather than the people who inhabit the place they have exploited.
This principle of progression should be held above all else because of exactly what its connotations define. Humans are not content being static beings, we are dynamic, just like the word progress; it should change with time times to adapt and address all issues. I cannot write from a computer in 2014 the ideologies to be held by those in 2020, just as a theorist in the late 1700s cannot define my nature and how it should lead to a government and legal proceedings that will never be abolished. The government achieves this in exactly this way, being dynamic. Bentham uses his background in legal positivism to derive a dynamic explanation of positive law.

Instead of relying on one set of principles to govern and use as restriction, we should rely on sociality and ethics to define how we govern each other and how government treats its citizens. Humans have their own system of progress that is seen through everyday life. If a household knows that one individual is better at math, they may very well delegate that that person is in charge of the finances, since it allows them more time to focus on their individual ends or be delegated jobs which utilize their strengths. This one person holds no power over another, in fact they hold just as much power to deny his abilities, for it to work harmoniously each individual will have to hold up their end of the bargain and do their specified jobs, but one person having a larger job does not entail them to more power over another. In this small-scale sense we can see an analogy to government of a larger society. There are always going to be people who have to till the fields in order to satisfy the needs of the masses, but their value is in no way diminished from the president. Every single person must act as a cog to create the success and progression of society.
As shown above, the natural rights claims fall flat in creating a harmonious society. Instead of disallowing people sociality, under limitations set by a higher being or a claim grasping at straws, we must promote that every person has an equal stake in society continuing to move forward with government. Rather than using natural rights to describe the way the government ought to rule, we need the government to provide for us a society where we can progress harmoniously in this day and the next.