Reporting in: I have now tracked down Arnold Kling’s back-and-forth with Michael Huemer. Haven’t read it yet, but it’s a start.

I did look up your citation from the Great Doctor (non-Jewish variety). I have an observation and a question. Observation: Just as one would, naturally, be expected to know automatically who is the Great Doctor, I see that the G.D. himself expects one to know automatically who is “the Philosopher.” Hee hee … I know very well, thank you!

The question: Do you think Mrs. Aquinas would mind terribly if I married him? (This is my hopefully-humorous way of stating that I really do like that passage and the forcefulness of the Saint’s opinion that no one has mastery over another, period. And I think his language there is surprisingly modern.)

Everyone: if we didn’t get it before we surely do now: RRS’s citation of Aquinas shows already why Miss Rand said he was the only other philosopher (than Aristotle) whom she admired. And she sounded quite convinced, too. :>))

RRS: You wrote something else that I like a lot — as it affirms a conviction of mine. Namely, you spoke of

“…the linkage of the Great Doctor’s precepts that are still with us to origins in Hebrew philosophy.”

I’m afraid you’ve lost me. It seems to me that your various statements about your meaning of “the state of nature” are somewhat contradictory. Perhaps I should just let what you’ve already said percolate for awhile, unless you feel the urge to try again. Anyway, as I said before, an interesting discussion indeed–yes, plenty of meat. (I rather like Pinky, in small doses, and I do think somehow those kids’ singing manages to evoke the very essence of brattiness!)

However, I will add to the misery of such others who, like me, may be interested in this topic, by suggesting a couple of web pages by Rob Natelson, An Authority *g* on Constitutional interpretation, formerly a professor of Constitutional Law at the U. of Montana Law School, and now Senior Fellow in Constitutional Jurisprudence at The Independence Institute in Golden, Colorado (also the home base of Second-Amendment activist and attorney Dave Kopel). First, “A Bibliography for Researching Original Understanding” by Rob Natelson is at

http://constitution.i2i.org/sources-for-constitutional-scholars/

Also, there is a pdf by Mr. Natelson entitled “A Founders Hermeneutic: The Original Understanding of Original Intent,” which can be downloaded at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088351

Is he as good as his billing? Heck if I know, but it’s a starting-point. He seems to be quite involved with the “Tenth Amendment movement.” Further deponent saith not.

. . .

The Online Books Page at the University of Pennsylvania has links to two editions of Blackstone in html. St. George Tucker edited the first, and added some notes; it was published in 1803. The second is the original edition, published in 1765-1769 by The Clarendon Press, Oxford. Finally, there is a link to Vol. 1 at Project Gutenberg, which can be downloaded in any of several formats:

http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Blackstone%2c%20William%2c%20Sir%2c%201723-1780&c=x

On the book references.

We are supposed to be living in the internet age – I am useless at such things, but more and more books are supposed to be “on-line”.

Without this understanding of what jurisprudence (the philosophy of law) should be, then things like the Ninth Amendment make no sense.

Sadly Common Law lost its way.

One can see that partly in Blackstone (which is why the Founders were so wary of his writings) with his cultish view of the importance of Parliament – seeming to place it above natural law (natural justice).

It becomes obvious in the 19th century with the work of Maitland – the leading historian of the law in Victorian Britain.

In Maitland the principles of natural justice are totally lost sight of – and the law simply serves a vague function of helping the community (the greatest good of the greatest number?) and how it is to do this is totally under the control of judges and Parliament with no PRINCIPLES checking their power at all.

Maitland mentions (in a sneering, contempt filled, way) that some people held that could be such irational or unjust Acts of Parliament that they should be opposed as not true law – but he then makes the claim that “no such statute has ever been passed”.

He makes this claim in a land (England) which had seen statutes past that tried to make free men de facto serfs (Statute of Labourours), that tried to force townspeople to follow the occupations (Statute of Artificers), that applied the death penality to many quite minor crimes (the “Black Act”) and on and on.

It is impossible that Maitland (an historian of the law) did not know this – his problem was not ignorance of the facts, it was ignorance of the law (i.e. of the philosophy of, the PRINIPLES of, law).

This “legal positivism” the idea that whatever the rulers say is law is law (the idea of the Roman Empire and of Thomas Hobbes) won out in the 20th century.

Legal philosphers such as Hans Kelson (see Hayek “Constitution of Liberty” for how blatent some of these people were) openly mocked the idea of natural justice or any connection it might have with law.

After the Hitler regime (which took these “legal positivist” ideas to their logical conclusion) there was a reaction against this collectivism – this statism.

However, people no longer understood what “natural law” meant -they were reaching out in ignorance.

Hence the modern confused lists of “rights” – which confuse limitations on force (what the American Founders, and the old Common Lawyers, would hae understood as the principles of law) with goods and services financed by the state (or forced by regulations).

People at least know that “legal positivism” (basically “the law is whatever government says it is”) is madness – just as “logical positivism” (“good and bad are just boo and cheer words”) is folly, and theological “voluntarism” (nothing to do with free will – it is a sort of theological positivism with “good” and “bad” simply being the ARBITRARY WILL of God – nothing to do with moral reasoning) reduces God to a mad dictator in the sky. Not God as the Founders (and the thinkers of the Common Law) understood Him.

However, people do not know what to replace “positivism” with – they are reaching out in the darkness.

Moral reasoning (in its religious or secular form) has become alien to our culture.

If some dude goes postal in a Pizza Hut, everybody else there is in a State of Nature with respect to him, and he likewise with respect to them.

Er, yeah. Kind of blows every definition “civil” and “society” to infinity and back I sure hope.

Being raised by attentive and protective parents is pretty obviously possible in a state of nature. Family and tribe are also common in the state of nature as demonstrated by everything from wolf packs to prairie dog towns.

One transcends the state of nature anytime one refrains from acting on one’s own animal instincts and emotions as a condition of association. Not sneaking apples from your neighbor’s tree because you fear him and his pack is a state of nature. Not sneaking your neighbor’s apples because it is “theft” transcends the state of nature. Yes, the slaves of a collective are prey in the state of nature, but collectives also have many willing and even eagerly subsumed members.

What are not found in the state of nature are thoughtfully constructed systems of unnatural responses and interactions. Engaging in reciprocal restraint when the thing received in return for your restraint is “to be named later” or is “for the common good” is not “natural”.

By your meaning, aren’t all of us at all times at least potentially in a State of Nature with regard to someone?

There are always potential predators. What is unnatural is for you to protect a stranger from predators because you’ve entered into a contract that binds you to protect each other. Defending the right to speak of those arguing against you is not natural. Aiding someone in danger because emotion and empathy pushes you to is natural, but helping a competitor or opponent because you think “that could be me” is not. Lloyds or State Farm is not “natural”. Tort law is not “natural”. Honoring contracts in defiance of emotion is not “natural”.

To the people of North Korea, or collectives in general, have you ever had pets or livestock? The ones I’ve had certainly did not exist in a state of nature. They were very much under my protection whether they liked it or not. Whether one’s scope of activity is collectively or cooperatively constrained, it is still constrained. So, no, the people of NorK do not fit under my state of nature. At least not unless they go renegade.

Back to that dude in the pizza joint, for a period disorder existed. He recreated the disordered state of nature. As soon as a person or people acting in cooperative (or collective) association could achieve it, they restored order. Unfettered aggression, both acquisitive and emotional, is the state of nature. Cooperative order is decidedly not natural. There will always be predators who cannot or will not be restrained. For them, fear of getting caught is the only restraint. The veneer of any society is fragile. The veneer of Individualist society is the most fragile of all, but its resilience I suspect is the greatest.

I think the difference between us on this issue isn’t a difference on an issue so much as on what we mean by a “State of Nature.” To YOU, I understand you to mean that a person is “in a State of Nature” precisely to the extent that he is not under the physical protection of some group (or to the extent that he uses force or coercion against someone–whether as aggressor or defender). But nobody is under the physical protection of some group against ALL comers and at ALL times. By your meaning, aren’t all of us at all times at least potentially in a State of Nature with regard to someone? If some dude goes postal in a Pizza Hut, everybody else there is in a State of Nature with respect to him, and he likewise with respect to them. Heck, if some guy wounds himself picking blackberries and breaks into my house in search of Neosporin, he puts himself and me in a State of Nature with regard to each other.

As to MY meaning, you (correctly) quote me:

I don’t believe that such a thing as a “State of Nature before the invention of Society” ever has nor ever could exist.

The bit “before the invention of Society” is the point I was trying to make, which is only that virtually all of us are born into SOME society or other (even an infant dropped in the middle of a wolf pack and brought up by them would be born into a society–just not a human one). Whether the society in which we find ourselves proves able and willing to extend to us its protection in all cases is another matter. When it isn’t, we are in your State of Nature but, as we are still members of a society (however useless or counterproductive to us it might be), not mine. The one exception would be some guy who chooses to be a hermit for whatever remains of his life and therefore forgoes all further human contact forever.

In fact, a good example is the “citizen” (so-called) of North Korea, who is certainly in your State of Nature with regard to his government and many of his fellow “citizens” (I daresay)–but, as he’s still a member of the NorK society, such as it is, he’s not in my state of Nature.

All that is only clarification (I hope I’ve understood you correctly). As to the rest — as I pontificated up above, I think that strictly speaking coerced political acquiescence is not the same thing as political consent at all. Actually, even the State of Illinois probably has one or two laws I think just. [Hmmmmm...wracks brain trying to think of example...I know! The law that says you mustn't lift a 10¢ stick-figure horse made of blue beads strung on wire from Gamble's 5-&-dime in 1955. --I'm SUCH a bad person! It's only safe to confess because the statue of limitations has run out. I only did it to see if I could (I could), and how it would feel (awful). Every so often I have to confess all over again.]

In any case, I don’t see anything you wrote on that subject that I disagree with. Except that if Things Were Different I really would consider expatriating. There are, in fact, people who do manage a peripatetic lifestyle in which they have, de facto, little if any formal protection (at least) from any government. I think that in such cases, properly greased local palms may remove them farther from their State of Nature with respect to the host government than any governmental edict anywhere.

Your 9:55 p.m. on 2/1 immediately prompted me to think of suggesting that just between the two of us we could easily spend the final four days of Front Page Status in discussing these and related matters.

Then I saw your next posting, and I had to laugh. “See? I TOLD you so!”

. . .

Actually the devil is in the details in a lot of my positions. I do try to keep them logically consistent, but often enough they look inconsistent on the face of them, even to me. And of course, often enough my attempts fail.

…That to secure these [unalienable] rights [with which men are endowed by their Creator], Governments are instituted among Men, deriving their just powers from the consent of the governed,….

It seems to me that this says, or directly implies:

1. The proper purpose of Governments is to protect the unalienable rights of Men*. This implies that the rights do exist prior to governments and specifically says that they come from “[Men's] Creator,” hence specifically not from the governments themselves.

No surprise to any of us, but not such good news for Legal Positivists and those who think “rights” are necessarily and specifically creations of some human-created and human-staffed legal regime.

2. Said governments “derive…” answers specifically the question, “On what or whose authority do governments, if, or to the extent that, they are valid or legitimate governments, govern?” (Answer: Said authority comes from “the consent of the governed.” –See Pt. 4.)

3. Said governments “derive their just powers…”: So this clause does not refer to ALL the powers governments may arrogate to themselves, but only to those which they “justly” assume and exercise. (This does NOT say that powers justly derived from [..."consent"...] deprive the consenters of anything, and in particular not their pre-governmentally-issued unalienable rights. Working out the limits within which the “derivation” might REQUIRE “deprivation” in the real world is another matter.)

4. The JUST powers of said governments come specifically from ["deriving their just powers from"] the CONSENT of the governed.

“Just”: Legitimately or validly acquired and exercised.

This part does not tell us exactly what real-world powers governments justly have; it merely (but what a “merely”!) gives us ONE criterion a governmental power must meet if it is to be properly considered “just.”

*”Men”: I see no reason whatsoever to assume that the Framers did not consider women a part of humankind, thus also possessed of the “unalienable rights of Men.” Their civil rights (that is, rights under statute law) would be a different matter. Still, isn’t it the case that under law in some Colonies, and also going back in English history, women had more civil rights than we, in our morally superior age, tend to suppose?

. . .

It strikes me that this statement about “consent” is almost more “an expression of pious hope” than anything else…because it’s hard to think of any governmental power or edict to which every member of the jurisdiction would consent without coercion, human nature being what it is–and the less unified the outlook of the populace, the truer that becomes.

It seems to me the only way to make rational sense of this is to take it pretty much the way we always have–namely that almost all of us agree that our government is supposed to be accountable to us, is not supposed to trample on our rights as human beings, that our treatment or rights and obligations under the law is not supposed to differ based on wealth, status, clout, or, latterly, race or gender; and that as long as it behaves itself we will go along with it without, in the main, making too much of a fuss.

But as to whether any one of us “consents” to any given Act or action by his government is another matter entirely. As I said before, there’s plenty to which I acquiesce only because I don’t care enough to be punished for non-acquiescence. This is distinctly NOT “consent” in the sense of “willing consent,” which is the only understanding of the word “consent” in the clause quoted above that says something meaningful instead of merely issuing a meaningless platitude.

I still haven’t made it to the Huemer column and subsequent discussions, but I did read Prof. Stoner’s piece and thought it was interesting. Even more so, I thought, was the Response piece by Hadley Arkes, entitled “Peeling Back the Common Law.” I’ve been trying to read the other response piece, by John McGinnis, but to me it’s kind of a slog getting through it.

Drat, I wish you would opine on some of these pieces!

And thank you again for your remarks and suggestions. :>))

I am indeed enjoying Dr. McDonald’s book. For one thing…it’s readable! And, of course, informative, except that every page mandates another 6 months in the stacks at a top-notch university library somewhere.

Thanks very much.