There have been many threads recently debating the ontological status of Natural Law and its supposed corrallary Natural Rights. It is my intention to bridge some of the ground between the natural lawyers (legislators) and the non-cognitivists.
Law by its very nature seems to be a set of rules that is chosen deliberately using reason (or revelation). Conventions, on the other hand, are rules that are generated spontaneously. It comes about through an evolutionary process of adjusting behavior while taking into accound the behavior of others. Torts (conventional harms) are determined by this mutual adoption of rules that solve some kind of coordination problem (in game theory this is called an equilibrium).
Some conventions are arbitrary, but some aren't. For instance, driving on the right side of the road is a conventional rule that could have been different (and so is, in a sense, arbitrary). It is a freely chosen convention that solves a coordination problem and because of the costs of choosing not to follow the convention (car crash or punishment by others) it is a stable equilibrium. This convention could have been different, and in some cases is different (driving on the left).
For some conventions, the opposite or negation of the rule is a dominated strategy and so wouldn't be adopted by freely choosing persons (it wouldn't be in their self-interest). The conventional rule of first come, first serve could not have been last come, first serve (the agents would wait forever and so is not an ESS). Could it be the case that conventional rules like these are "natural"? Natural, in this sense, would mean that the rule is a unique solution to a coordination problem, is a Nash equilibrium, and the negation of the rule could not have solved the coordination problem?
Are these kinds of conventions (like first come first serve, but not driving on the right) the kinds of things Natural Law theory was aiming at? What do you guys think?
"I cannot prove, but am prepared to affirm, that if you take care of clarity in reasoning, most good causes will take care of themselves, while some bad ones are taken care of as a matter of course." -Anthony de Jasay
Solid_Choke:For some conventions, the opposite or negation of the rule is a dominated strategy and so wouldn't be adopted by freely choosing persons (it wouldn't be in their self-interest). The conventional rule of first come, first serve could not have been last come, first serve (the agents would wait forever and so is not an ESS).
To prove a rule "natural," it does not suffice to negate it on its own terms and then reductio it. One must consider other rules such as "From each according to ability, to each according to need" or "Patricians first, Plebeians second." Both of these rules are "negations" of first-come-first-serve, even though they are not explicitly so.
The rules that do emerge more resemble "driving on the right" than anything else. They are essentially arbitrary* solutions to the coordination game that persist because of their saliency.
*(In terms of game theory, not necessarily in terms of natural rights.)
It's a little more complicated than this, but you might think of human interaction as a series of Ultimatum Games. Every person has to decide how much of what they consider "their" property they are willing to defend. If this intersects with another's choice, then mutually destructive violent conflict ensues; on the other hand, if the choices fall short of meeting, then someone can unilaterally profit by extending their reach to the unclaimed area. However, any space-filling solution will be a Nash equilibrium, regardless of how much it gives to each player. (This applies not only to literal territory disputes, but any other kind of conflict as well.)
For example, suppose that we divide a group of people into Patricians and Plebeians, and tell them that the Patricians are entitled to 2/3 and the Plebleians to 1/3 in every game. It is to no individual's advantage to stray from the salient point, so it will likely persist despite its arbitrariness. (If you've got some money to throw away, you could try this experiment, although I'd expect these results a fortiori from the Stanford prison experiment.)
The task of the libertarian theorist is to move the point of saliency away from statism and towards voluntaryism, which can be done even if the theorizing does not appeal directly to everyone's self-interest (as Rand, Rothbard, etc. are wont to attempt).
Zavoi:To prove a rule "natural," it does not suffice to negate it on its own terms and then reductio it. One must consider other rules such as "From each according to ability, to each according to need" or "Patricians first, Plebeians second." Both of these rules are "negations" of first-come-first-serve, even though they are not explicitly so.
You seem to misunderstand what I mean. "From each according to ability, to each according to need" could indeed be a rule enforced by laws and so could "Patricians first, Plebeians second". The problem is that we have no reason to believe that these would become conventions. In a game involving those with ability and those with need (and without ability), why would those with ability choose a strategy involving giving to those in need? The answer is that they would not, so that strategy would not be a Nash equilibrium. Conventions become what they are because they do form a Nash equilibrium (if we include with them conventions for punishing deviation from the convention). First come, first serve solves the coordination problem and very well could be chosen freely by people (along with a convention for punishing deviation from "first come, first serve") and become a Nash equilibrium. The other rules put some agents at a continuous disadvantage without a compensating gain, so rational agents wouldn't freely chose such a rule. Am I right?
Zavoi: For example, suppose that we divide a group of people into Patricians and Plebeians, and tell them that the Patricians are entitled to 2/3 and the Plebleians to 1/3 in every game. It is to no individual's advantage to stray from the salient point, so it will likely persist despite its arbitrariness. (If you've got some money to throw away, you could try this experiment, although I'd expect these results a fortiori from the Stanford prison experiment.).
This doesn't seem to get at what I am saying because I am not talking about rules that are forced on people (laws), but rules that emerge from the free choice of individuals (conventions). The game with the Patricians and Plebians starts with law already in place, while I am talking about conventions that are adopted in the state of nature.
If you aren't sure what I mean by convention you might want to start here. Think Hume, not Hobbes.
Solid_Choke:The other rules put some agents at a continuous disadvantage without a compensating gain, so rational agents wouldn't freely chose such a rule. Am I right?
First of all, what do you mean by "freely"? Also, we can only speak of a "disadvantage" or "gain" relative to some other position, but we have already assumed the absence of any point of reference (i.e., a "state of nature").
They would choose such a rule if they feared that there would be violent conflict if they didn't. This fear is reasonable if the convention is already in place that deviants will be punished. (At this point you're probably thinking, "But I'm talking about the initial establishment of the convention, in a state of nature with no preexisting convention." I'll get to that in a moment.)
Solid_Choke:This doesn't seem to get at what I am saying because I am not talking about rules that are forced on people (laws), but rules that emerge from the free choice of individuals (conventions). The game with the Patricians and Plebians starts with law already in place, while I am talking about conventions that are adopted in the state of nature.
In my example, the convention (or "law") is merely spoken by a third party; it is not enforced on the players in any way. In this way, it is a more accurate representation of the nature of state power. After all, it is not as though the state is made up of superhuman beings who have the power to literally force the people to obey their edicts. [And for that we are fortunate, since otherwise our cause would be hopeless.] Government decrees are only obeyed because there is a convention that leads to the punishment of deviants at the margin. This was the key insight of Étienne de La Boétie.
Solid_Choke:The problem is that we have no reason to believe that these would become conventions.
In actuality, such conventions do exist -- just look at any state in the world, where there are tax-payers ("Plebeians") and tax-collectors ("Patricians"). And there is nothing "unnatural" about these conventions: they have emerged from the "free" (i.e., not superhumanly coerced) interactions of ordinary people. How, therefore, do we explain the existence of the state? In a word, salience. From the article you referenced (emphasis added):
SEP:As Schelling's example illustrates, salience is a “subjective” psychological trait that does not follow in any obvious way from the rational structure of the strategic situation. Hume already anticipated a role for subjective psychological traits, noting that our choice of convention often depends upon “the imagination, or the more frivolous properties of our thought and conception” (Treatise, p. 504, note 1).
In other words, there is no "natural convention" emerging from the state of nature. There is really no rational basis on which a convention is initially established. (That may change in the future, but we're talking about what happened in the past.)