Hoping to discover Universal Truths, I have been reading Law in Imperial China and The Law of Primitive Man among other things. One never knows when one might stumble across the Law of Nature. But it’s all downhill after Hobbes and Locke. History is quite determined to make a mockery of it all. (This ultimately has bearing on some of the arguments made concerning copyright and patent rules, particularly by my old, old friend Tom Bell (not that Tom is old, just that I’ve known him for ages) and by a younger version of myself, but I don’t make all those connections here).
The Law of Nature gets short shrift in modern courses on philosophy–it is linked to religion. Thus, “nonsense on stilts.” Which is curious, because much eighteenth century epistemology (mind body problem stuff in particular) is also linked to religion, and does not get short shrift in modern courses on philosophy. Rather, the religious link is explained away. All right. But Hobbes, Locke, and other “natural lawyers” are equally susceptible to being updated in this way, for they carefully explained that Natural Law was revealed by Reason; conceivably, then, one could leave out the supernatural altogether. I suspect the real reason that natural rights theory gets little attention from moderns is related to its substance within the Anglo/American legal tradition–by and large it is thought to track either a freedom-friendly set of negative rights, or the common law, or both. This has little appeal to the academic left. But libertarians are fine with it. Thus, a continued interest in the State of Nature and the Law of Nature on our part, and assorted attempts to re-unite it with economics and utilitarianism.
But its a theory. A pretty bare-bones theory at that. How far can it take us in modern policy debates? About half way. There seem to be some experiments in ground rules for human conduct that just don’t get very far–some that are not sustainable at all (going back to the starvation in Jamestown); others that are sustainable for generations in a certain setting but that yield few gains in prosperity (some stone age cultures). Some sets of rules amount to spitting in the economic wind, and the law of nature is, perhaps, what remains. One could probably play a fun game of basketball with any number of variations on basket or ball size–but not with a square ball. But that still allows for tremendous variation. Bad news or good news? Bad news, because some of those variations might not represent the libertarian ideal? No, good news, because there is enough real change in human societies that the ground rules need some room to adapt, too.
Back to the question. How much room? Any clues from human history? It’s a sad thing, human history. We look to what we think is the closest thing we can find to a state of nature. Primitive law. Ancient law. It’s a mess. Sure, there are property rights of a million different forms, from water rights to hunting rights to rights over tools. There’s trade. There’s the Icelandic Commonwealth. But the vast bulk of the law of primitive man and ancient man involves slavery, sorcery, and sex. The substance of which, I trust, has no appeal to libertarians. And then there are substantive principles that do fit within a pure theory of libertarianism, but that have absolutely no place in a modern civilization. Infanticide by exposure, for example. Do we even get rid of intellectual property? Well, no. In some Native American cultures, a shaman to whom a spirit revealed a ritual song or formula owned the revelation. It could be licensed to others, it could be inherited, but it could not be used without his permission.
Some of it works. Some of it doesn’t. Oh, one can retrofit it all to a vision of markets. In a world of battles and raids, enslaving prisoners was perhaps more humane than killing them. Leaving a newborn out to die of cold and hunger is a better strategy for survival than letting an elder sibling past the illnesses of early childhood starve. And so on. But taken out of a context in which bare necessity looms large, a lot of those principles just have to go. Back to pure theory. But that won’t get us to specifics, either. We’re left with rough rules of thumb, with what seems to work or might work.
Frankly, it’s a relief not to have some absolute black and white guide to what we ought to be doing by which one may and must judge others. Who wants to do that? Ah you do? You have an autocratic bent, my friend.