Strengthening Constitutional Self-Government

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High Tea Party Scholars

Hadley Arkes and the Claremont Institute open a center for natural law--dedicated to teaching lawyers and judges that the best of them have been speaking natural law prose all their lives.
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Discussions - 11 Comments

Can he open one for teachers?!!!!

Tony, I'll bet we teachers could follow along if we read everything slowly.

I like Arkes quite a bit, and a study of the natural law would be an excellent remedy for the reigning orthodoxy of relativism that dominates our schools today.

I agree and speak about natural law whenever I can, as for example when discussing logic. Natural law is our political enthymeme.

Agreed. I think it is a rare lesson that goes by in my history class without some reference to it. It just came up frequently in our discussions of slavery, Frederick Douglass, the Lincoln-Douglas debates, Lincoln's speeches, the Civil War, and of course, the "apple of gold in the picture of silver," etc.

The enthymeme is very useful indeed. For example, if you ask the question, why does this item, or "take" on the item, appear in a news story? In other words, what assumption must one make about the importance of, say, a left wing group gathering in New York City or a right wing group forming in Dallas? The news item is a minor premise of an enthymeme with an unstated major premise and an implied conclusion. The audience supplies the missing pieces as well. The technique has real limits but it keeps certain items before the public and buries others.

The Declaration does the job of exemplifying enthymeme for my students. I stumbled on it the first year, thinking out loud, trying to come up with common assumptions to explain enthymemes. That they have rights to life, liberty, the pursuit of happiness (or property, since liberty without ownership is a thin thing) and giving consent to be governed -- these are all assumed truths to them. For some, especially those under 30, the terms might occasionally take some discussion to get at the principles. The misapprehension that people have a right to happiness is common, but when pressed on how that right could be guaranteed fairly, they accept the more limited premise.

This is to say that most of us talk natural law prose all the time. Even those who rationalize or intellectualize it away can be heard singing the refrain, even if a little off-key.

Those self evident truths are the major premise, the charges against the king are the minor premise and the judgment of the king's despotism is the conclusion.

Yes, that's the way to look at the Declaration as a syllogism. Yet what interests us in the long run is that major premise, which was not self-evident in the day. The importance of the conclusion is long since superseded by events: winning the war, we won the argument. Wherein people say the Declaration is irrelevant today, the minor premise and conclusion are what date the document. The major premise has become self-evident truth, which is why it is now useful as an example of enthymeme. In 1776, Jefferson and the boys presumed a lot with the "self-evident truth" part.

Occasionally a student notes wherein ours is not a universal political enthymeme. Wouldn't we be more confident about "Arab Spring" or Libyan independence if those truths were evidently also theirs?

This is good. We need constantly to be reminded of the self-evident truths precisely because they are "in the mind" rather than hard facts, like political actions and the outcomes of wars (although even facts are in dispute). It takes only one acute mind to acknowledge the truth of human equality and liberty for the proposition to be self evident, just as it is sufficient for one person to grasp algebraic equations or geometric proofs. If Jefferson was simply presenting an account of the American mind, as he said he was, then he "presumed" rightly and adequately (except for the Tories). Without a demonstration to or enlightenment of open minds elsewhere, you're right, it will not be evident in the Arab world or other dark places of repression.

"The misapprehension that people have a right to happiness is common, but when pressed on how that right could be guaranteed fairly, they accept the more limited premise."

That is just a way of saying that the right to happiness is non-justifiable.

How do you know that Happiness isn't a Natural Right?

I am not sure folks have to be reminded that they seek happiness, so while this may be "in the mind" rather than a hard fact, this distinction could be immaterial. The persuit of your happiness or self interest is actually what gives "materiality" or "relevance" to "hard facts", and hard facts are disputed in part because of the potential consequences, both material and psychic to your happiness or self-interest.

Slavery is contrary to the natural right to happiness. I mean certainly if you own a plantation and have slaves as your property, your happiness or self-interest is antagonistic to that of the slave.

If happiness isn't a natural right then as Lincoln pointed out one need not ask the slave what is in his self-interest or conducive to his happiness. Consent and Equality derive from Happiness, but happiness no matter how non-justifiable isn't so vague or "in the mind" that one could not figure out that being treated like a slave would undermine the Human Dignity and self worth necessary for Happiness.

This is to say that if good government is founded on consent, consent absent a writting can only be presumed when it is conducive to happiness. Thus in property law(gifts) acceptance(Consent) will be presumed so long as the Donee does not explicitly reject the gift.

That is this is something that will make the Donee acceptance/consent can be presumed.

Your assumed Right to Happiness can thus act in place of consent.

But Happiness only works to trump the consent(or provide the rebutable presumption) of the Donee, never the Donor. A gift being a valuable transfer of property without consideration, we are suspicious of gifts, and look to donative intent, but here we are really just trying to determine if the person gave the gift because it pleased him to do so. So was the gift given to a natural object of one's bounty?

Is this a gift made for the sake of happiness? Or was it compelled under duress, or was such a gift so far outside of the donee's self interest/happiness that we can raise questions about the donee's ability to consent?

Assuming in some sense a Natural Right to Happiness, one could argue that slavery is wrong, because he is lacking in donative intent, or that his master is not actually the natural object of his bounty, and this is self-evident.

The DI can also be read as holding that the english King was not the natural object of american bounty, which Jefferson strongly implies by discussing 4 million american's held captive by the laws "given" by 160k electors. Indeed one might say that "Happiness" is a Natural Right that these electors cannot safely disregard..hence the emphasis/veiled threat of "bodily strength".

In some sense then the DI is the law of gifts where the american people are the Donee's and are presumed to accept this "gift" of good government from the English King.

They are only presumed to accept because it is conducive to Happiness... A rebuttable presumption!

"laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

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