Monetizing University Research

Over the past decade plus we have from time to time tried to monetize University R&D. There is an interesting piece on MedCity News regarding this from the perspective of the University. They note:

...said one of the major points that prospective licensees should make clear is what exactly is going to be done with the technology. For example, explaining the full scope and potential of how the technology may be used across different applications. “If it does have multiple applications then we need to have a conversation around field of use so that we can make sure that all aspects of the technology are developed and not just sitting on the company’s shelf,” ..... Another point of negotiation,... needs to be the discussion around timelines and milestones for commercializing the technology...we’re managing assets that belong to the state ... as well as to the inventors, so we’re looking for overall fair consideration,

The counter to this is simple. Does the representations made by the inventors really work, and by this I mean commercially. A peer reviewed paper means nothing. What is the cost to manufacture and can the Lab at the University demonstrate the effectiveness and efficacy of the invention. Also one must understand the role of the PI involved. They are researchers but often they want to "run" the company. Finally, a commercial entity invests significant amounts of money and time and Universities must avoid being too greedy. Finally, a patent is just that, a piece of paper. Defending the patent could be costly and loaded with risk.

For these reasons the "valley of death" facing many academic research efforts is real and all too often dominated by actions of the researchers and the Universities.

AI is not that Easy

Science has an article commenting on the complexity of using AI techniques to determine a simple lung infection amongst patients. The article notes:

When the algorithm was tested on a different batch of Mount Sinai x-rays it performed admirably, accurately detecting pneumonia 93% of the time. But .... also tested it on tens of thousands of patient images from two other sites: the National Institutes of Health Clinical Center in Bethesda and the Indiana Network for Patient Care. With x-rays from those locations—where pneumonia rates just squeaked past 1%—the success rate fell, ranging from 73% to 80%, the team reported last year in PLOS Medicine. “It didn't work as well because the patients at the other hospitals were different,” ... says. At Mount Sinai, many of the infected patients were too sick to get out of bed, and so doctors used a portable chest x-ray machine. Portable x-ray images look very different from those created when a patient is standing up. Because of what it learned from Mount Sinai's x-rays, the algorithm began to associate a portable x-ray with illness. It also anticipated a high rate of pneumonia, boosting misdiagnoses.

This is not that unexpected. The AI technique, most likely a neural network, uses many data point but no knowledge. It is akin to my argument that if Newton had used AI to determine gravity it may very well have included some metric including the color of the Kings undergarments! The lesson to be learned is that any AI neural network must be trained on the right parameters not just everything and AI has not yet reached to stage where it can independently determine those parameters.

If It Can do This!

PLOS has a paper describing how examining Facebook posts one can determine physical disorders. They state:

We studied whether medical conditions across 21 broad categories were predictable from social media content across approximately 20 million words written by 999 consenting patients. Facebook language significantly improved upon the prediction accuracy of demographic variables for 18 of the 21 disease categories; it was particularly effective at predicting diabetes and mental health conditions including anxiety, depression and psychoses. Social media data are a quantifiable link into the otherwise elusive daily lives of patients, providing an avenue for study and assessment of behavioral and environmental disease risk factors. Analogous to the genome, social media data linked to medical diagnoses can be banked with patients’ consent, and an encoding of social media language can be used as markers of disease risk, serve as a screening tool, and elucidate disease epidemiology. In what we believe to be the first report linking electronic medical record data with social media data from consenting patients, we identified that patients’ Facebook status updates can predict many health conditions, suggesting opportunities to use social media data to determine disease onset or exacerbation and to conduct social media-based health interventions.

 Well this is a kind of "told you so". Profiling was complicated but Facebook provides a powerful tool. Not only via passive analysis as was done here but by active probing via placed ads can result in highly accurate psychological profiles. This is definitely entering dangerous waters.

Seaside Park 2019

The Summer begins!

Natural Rights

Why study Natural Rights theory? What purpose does it serve? What do we mean by Natural, Nature? Have not these concepts been aborted in the more contemporary view of an evolving historicity, namely humans are changing and so too are their views of what is a right and what is not. One need consider nothing more than a political election where the contenders make rights claims for almost everything. Rights to homes, education, medical care, incomes, reproductive acts and sequalae, voting, immigration and so forth. There have become so many "rights" that one wonders if it would be better just to list what you cannot do or have. Like the Ten Commandments. Short, simple, and leave it at that.

But what, one may inquire, is Natural, or Nature? Humans are growing in a linear temporal manner and human ideas are evolving and one wonders what is this inherent faculty which humans have that was the same now as it was a millennium ago or even two or three? Those Ten Commandments were allegedly brought down quite a while back and would it then not be natural for us to have changed enough so that perhaps we could amend a couple of them?

After all, look at the dog. It came from a wolf. There are still wolves, but few are kept as pets. They have the tendency to attack and consume. But wait, is that not that Nature of a wolf. Yet in a dog has time and human interaction changed that Nature? We keep using the term Nature, a term which has some type of ahistoricity, yet here we see an ahistorical term applied to a temporal change.

Our argument is simple. The term Nature is an artifact of the past but can now take on a reality in fact. Consider the statement; humans walk upright. The comparable statement is that; it is in the Nature of a human to walk upright. But as we know today scientifically; the genetic structure of human genes results in processes, functions, and structures the make human walk upright. Namely the Nature or human to walk upright is the same as the genetic predispositions of humans to walk upright. Genetic structure and functioning are then the basis of the term Nature.

It is in the Nature of a rose to have thorns. The genetic makeup of the rose is such that it has the persistent propensity to have thorns. Thus, Nature and Genetics are isomorphic and isometric.

1. Middle Ages

The development of Natural Rights theories has a somewhat uncertain history. There seems to be an ongoing examination of this effort and the work of Tierney appears to be the clearest. We begin with Makinen who makes note of some earlier Middle Ages discussion on rights. Namely he notes:

Henry of Ghent, for instance, posed in his Quodlibet IX the question (q. 26) “whether one condemned to death can licitly flee” (c. 1289). Henry treated the question by distinguishing between the rights of the judge and the rights of the condemned person in the body of the criminal. The judge has the power (potestas) of capturing, holding, and executing the condemned person, whereas the criminal has the power of using his body so as to preserve his life as long as he does not injure another

This is an interesting analysis. It states on the one hand the right to exercise control over another while have the one being controlled having the right to prevent or negate the actions. He continues:

In his article “Origins of Natural Rights Language: Texts and Contexts, 1150–1250” (1989), Brian Tierney argues that “the decretists put forward a subjective definition of a natural right in terms of faculty, ability, or power of individual persons associated with reason and moral dicernment.” According to Tierney, this canonistic teaching on natural rights influenced both later philosophical and juridical discussions on rights. Tierney based his argument, on the one hand, on his study of the twofold textual material of the decretists:

(1) their definitions of ius naturale in Gratian’s Decretum (c. 1140) and

(2) their analyses of the example of the poor in extreme necessity using the canon law principles concerned.

On the other hand, Tierney has also studied late medieval and early modern rights discourse and shown the decretists’ influence on it.

The Decretum was a compilation of Canon laws compiled by Gratian. By the time he had compiled them they were a collection of disparate and often conflicting laws. This was an attempt to collect them in a logical manner. There does not seem to be any overt attempt to deal with a Natural Right issue but notwithstanding the influence has been argued.

Natural Rights was an evolution in the understanding of two words; ius and dominium. Ius was originally justice, and namely the justice handed down by the state. Dominium was control, control by the power of the state, in most cases the ruler. But with the separation of subject and citizen, between the power of the Papacy can the Conciliar movements rebirth, individual thought and the power of the individual began to arise, and with it the concept of rights versus duties.

2. Aquinas

Aquinas was a promulgator of Aristotle and in a sense, he transliterated between Aristotle and then current Christian Theology. The approach of Aquinas was to take the Aristotelian terms and approaches and to lay upon them the fundamental Christian dogma. As Lisska noted:

In the tradition of human rights theory, scholars often look to the texts of Thomas Aquinas, especially those passages in which Aquinas discusses lex naturalis1, jus naturale, and jus positivum, as foundation stones for the development of human rights in western political theory. While this scholarly suggestion is correct as far as it goes, nonetheless the story of rights theory rooted in Aquinas is more nuanced than what one sometimes finds in political philosophy writings. This essay is an attempt to sort out several conceptual complexities that arise when discussing how Aquinas’s texts contributed to the development of human rights theory and practice.

To begin, one needs to distinguish between rights that are called “objective” and those rights central to Enlightenment philosophy that are often referred to as “subjective.” Secondly, an important distinction arises between rights that are considered as “negative” versus those referred to as “positive.” Thirdly, there is the further conceptual difference between “natural” rights and “positive” rights. While there is some conceptual overlap within these categories, nonetheless these sets of concepts are distinct to a large extent, thus requiring substantive analysis.

Aquinas does not articulate true Natural Rights. He seems to wander about and uses the claim to a Natural Law to delimit those rights, whatever they may be. But the subjective rights above is a recognition of individual rights. The concern always seems to be; what is the source of these rights? In the Middle Ages the source was always Divine, directly. There were to be no intermediary constructs. God gave the rights; thus, they were Natural and part of Human Nature, Divine in origin.

3. Ockham

Ockham as we have presented elsewhere, is the fundamental thinker who separates the past from the present on the thinking of Natural Rights. As Van Duffel and Robinson have noted:

Hence discussion of Ockham's political work has remained predominantly the territory of specialists in medieval thought. Surely Ockham's theory deserves more attention, not only because of its immense influence, but also because its nature and its significance in the history of natural rights doctrines remain highly controversial. Many of the discussions of the Franciscan doctrine of rights in general and Ockham's contribution to this tradition in particular have focused on the strong association between rights and dominium (and between rights and potestas).

The Franciscans often claimed to have no rights in the things they used because having a right for them meant having dominium (insofar as a right-holder is, ipso facto, on the dominant side of a relationship), and having dominium was, for them, incompatible with the life of poverty and humility that they had vowed to observe. Ockham has sometimes been depicted as a radical innovator. His nominalism supposedly led to a "social atomism" in political discourse, while his voluntarism would have led him to exalt God's will and that of human beings. Consequently, Ockham would have had no place for a genuine theory of natural law; instead he filled the resulting void with a body of natural rights, marking off domains where human wills prevail. Ockham is thus sometimes regarded as the proponent of a view that sees an intrinsic link between rights and "freedom" or "sovereignty.

He continues:

However, even if the most general power or natural right of using can be restricted by laws, it cannot be emptied totally. Ockham, again following what was the common belief of the day, thought that in times of  extreme necessity-in case someone would face certain death because of  lack of  access to some good-all things were common, so that anyone in such a condition could licitly use whatever he needed to avoid death (Roumy 2006). Outside cases of extreme necessity, however, if someone is prevented from using some determinate temporal thing only by the fact that it is another's, "the permission alone of the person whose thing it is, which is ex- pressed through a licence, suffices for this: that he may use that thing by right of heaven" (OND 65.221-223, 2:578).

Permission of an owner is thus sufficient, according to this reasoning, to "untie" the natural right of using things that anyone has at all times regarding all things (OND 65.218-227). It is this kind of use, licit use by right of heaven, that the Friars Minor, according to Ockham, have in the things they use

Burns has noted:

Prescriptive rights were strengthened by a widespread but not yet very well-developed belief in natural rights. That men ought to be free and that they ought to have safe possession of their goods slowly took shape as philosophical truths during the fourteenth century. William of Ockham, by locating freedom within what he called ‘second mode’ natural law, established it as a necessary part of the best state. Because freedom was part of the law which rational men would observe if not subjected to other pressures, states needed substantial justification to depart from it.

From different assumptions, the natural right to property was articulated by John of Paris and then by Ockham’s opponents in the course of the poverty conflict. Both rights were brought together by Gerson in his De vita spirituali animae, in what has been hailed as the first true natural rights theory:

There is a natural dominium as a gift from God, by which every creature has an ius directly from God to take inferior things into its own use for its own preservation. Each has this ius as a result of a fair and irrevocable justice, maintained in its original purity, or a natural integrity ... To this dominium the dominium of liberty can also be assimilated, which is an unrestrained facultas given by God.

If natural rights were slow in finding adequate philosophical expression, they were understood to exist and translated into royal duties before Gerson’s day. Ockham deduced from natural freedom the consequence that a king ruling by will alone was prevented from using his subjects’ lives or goods for his own advantage. Oresme, from a vague right to property based in divine law, concluded that ‘A Prince should not enlarge his dominion over his subjects, should not overtax them or seize their goods, should allow or grant them liberties, and should not interfere with them or use his plenary powers, but only a power regulated by law and custom.’

But if subjects could transpose their rights into royal duties, kings could deflect those duties back on to the subjects. So that they might perform adequately their task of protecting their subjects’ lives, liberties and goods against all other parties - a task which in practice constituted the chief pillar of the people’s reverence for their king — the French and English monarchs of the later middle ages demanded sacrifices of lesser rights in the interests of the greater. Occasionally this meant willingness to die for the defence of the realm; far more commonly, it meant the acceptance of taxation.

Because taxation involved an infringement of prescriptive and natural rights, it could not occur without the subjects’ consent — which in any case was essential on practical grounds. The Roman law tag quod omttes tangit ab omnibus debet approbari (what touches all should be approved by all) came swiftly to mind as a means of expressing the principle (though the question of how far beyond this taxation was affected by Roman law is still a matter of earnest debate among historians). In England, the minority of Henry III saw the communitas regni assent in grants of subsidy to the regency government; by 1295, the representation of shires and boroughs in this act of assent was formalised. In the 1320s, the author of the Modus Tenendi Parliamentum was contending that the knights of the shire had a louder voice in the act of consent than the magnates, since they represented the whole realm, while the magnates spoke only for themselves.

The implications of representation were now well understood. By accepting the principles of consent and representation, the localities of England had turned the communitas regni from a baronial club to an assembly which expressed the will of all tax-payers, hence of the political nation as a whole. Since king and people negotiated within the same frame of reference, thereafter only taxation of the clergy re-opened the question of rights. For the laity, each demand for a subsidy began a strictly political battle; neither side had recourse to fundamental questioning of the system.

Reid poses the following all important question:

The term ius naturale in the writings of such classical and postclassical authors as Cicero or Ulpian meant "natural law" or "natural order," not "natural right. By the seventeenth century, however, the term clearly embraced subjective rights as well. When and under what circumstances, then, did the natural law of Cicero and Ulpian also acquire the meaning of natural rights?

Rights went from control to enablement, from dominium over a subject to the freedom of an individual. Reid continues:

Tierney's analysis covers the entire corpus of Ockham's political writings. He finds that Ockham's contribution to the development of rights in the West was crucial. Indeed, Tierney proposes an entirely new synthesis concerning Ockham's role in the shaping of the Western rights tradition. Tierney demonstrates the falsity of the idea that Ockham replaced an ordered theory of rational justice with a doctrine of rights dependent on blind and inscrutable will. 96 Rather, Ockham creatively reworked the natural-law tradition he had inherited from his thirteenth-century predecessors, and thereby produced a theory of natural rights that had nature and reason as its twin foundations

He continues:

Tierney's treatment of Ockham on political rights is similarly original and provocative. He shows that Ockham argued that both the emperor and the pope were obliged to respect the rights of their subjects.10 9 Ockham maintained that the emperor derived his power from the people, who "could not confer more power than it actually possessed."110 A provision of the canon law of corporations, Ockham continued, limited this power, holding that a governing majority and, by extension, the emperor-could infringe on the rights of the other members only in the case of "necessary actions.""' The pope, furthermore, was limited by the canonistic maxim that no one was to be deprived of rights "without fault" (sine culpa),112 and the fundamental principle of evangelical liberty:

"Ockham's favorite way of proving [the restraints on papal power] was to argue that the evangelical liberty proclaimed in scripture limited papal power by safeguarding the natural and civil rights of the pope's subjects.... Christian law was a law of liberty, indeed, "a law of perfect liberty" according to the Epistle of James. Paul too wrote of "the freedom that we have in Christ Jesus" and declared that "Where the spirit of the Lord is, there is liberty." But, if the pope could command anything not contrary to divine and natural law, then Christian law would be a law of most horrid servitude. All Christians would be made slaves of the supreme pontiff, for to command anything not forbidden by divine and natural law was precisely the kind of power that a master held over his slaves.... The proper limits to papal power were set by the liberties and temporal rights of emperors, kings, princes and other persons, rights that came to them from natural law or the law of nations or civil law. Without cause and without fault the pope ought not to disturb these rights of others "(quoted from Tierney)

4. Wycliffe

Wycliffe (or Wyclif and other variants) was a late 14^th century cleric who amongst other things translated the Bible into Middle English. He was befriended by John of Gaunt and in turn by Chaucer. His views were on the verge of being heretical and to some degree he had pushed the edge of the political thorny envelop.

As Lahey has noted:

On the political level, John Wyclif advocates two social classes-property   owners (including those who use what others own) and those who live in apostolic poverty, owning nothing privately. He believes the duty of the just civil lord or king is to see that the apostolically poor, who are all members of the   church, are supplied with alms necessary for acquiring the goods they share, and to protect their pure poverty. The king's duty is also to ensure that society's civil owners can live harmoniously together and with the apostolically poor, free from any threats.

The co-existence of these two classes under the protection of the king suggests an attitude of toleration towards property ownership, which Wyclif believes to be founded in Original Sin. Further, his doctrine of Grace-founded dominium requires the king to serve as moral exemplar for his subjects, to refrain from war for any reason but strictly defined defense of the realm, and to keep the nation's laws and taxes to a bare minimum. And given the still common social strictures of feudalism, Wyclif s argument that no civil dominium, including both property ownership and civil jurisdiction, can be granted in perpetuity overturns established feudal machinery.

He continues:

At the outset of De Mandatis Divinis Wyclif explains that ius is a term used when something is just. To show that iustitia is an effect of being in accord with ius, Wyclif suggests we look at the three senses of the term ius.

First, it is used to describe any real created nature justly exercised over a subject (servum), including the use of something/someone.

Second, it is used to describe the power of a lord to use something/someone (a right of use).

Finally, it is used to refer to the uncreated truth paradigmatic for all iustitia, "which some call the art of the fair and the good, and some a holy sanction, which commands the upright and forbids the opposite, but some more completely say that ius is the constant and perpetual  will granting to each what is their   own."

Some have used this last definition of iustitia, but incorrectly. We should recognize that iustitia is an effect of ius, for the only thing prior to iustitia according to the jurist's definition is the constant will to give to everyone their due. Can this constant will be anything other than ius? Here Wyclif is extrapolating from Justinian's Institutes, where in the first sentence the emperor begins with the working Roman definition of iustitia just given. Perhaps Wyclif is reasoning that if created iustitia is founded in a constant human will, the uncreated and purer divine iustitia must be founded in the divine will. If so and if one reads Justinian's definition "constans et perpetua voluntas ius suum cuique tribuens" as presupposing a ius which is each person's due, it seems natural to conclude that God knows as he wills what is each person's due, which would make what is ius at least contemporaneous with divine willing and certainly prior to the iustitia consequent on perfect willing.

Understanding Wycliffe is again understanding his context. He was at Oxford and sought significant self-prominence. He managed to attain influence through the Kings brother, John of Gaunt, and thus managed to see this as a path to establish his influence. In a sense Wycliffe was a Hussian before Hus and a precursor of Luther. If Gaunt had been more powerful and in need, then perhaps Wycliffe could have been used as Luther was.

5. Suarez

Suarez was one of the Spanish theologians who followed a somewhat Scholastic route. He lived into the 17^th Century but outside of the changing attitudes afoot in France and Germany.[1]

Makinen has noted:

According to John Finnis, the transition from Thomas Aquinas’s (1225–1274) ius, defined as “that which is ius in a given situation”, to that of Francesco Suaréz’s definition (1548–1617) as “something beneficial – a power – which a person has”  was a kind of watershed.10 Suarez’s innovation redefined the concept of rights as a potestas or libertas possessed by an individual, a quality that characterises one’s being. There is, however, many scholars that defined ius as potestas or libertas before Suaréz, and already before Aquinas.

6. Strauss

Leo Strauss was a brilliant mind and as a refugee from Fascist Europe he managed to settle well at the University of Chicago at a time when his thought and that of his new environment melded. Chicago was the antithesis of Columbia and Berkeley. The latter were bastions of proto communists and Marxists, and also were homes to the new intellectual elite of the mid twentieth century. Strauss is not an original thinker as we the others we have been discussing as much as he was an interpreter of many that had come prior to him.

From Reid:

Leo Strauss and his followers have also maintained that the seventeenth century was decisive for the shift from systems of thought that emphasized transcendent and immutable principles to a way of viewing the world that placed primacy on the competition of all against all and the individual rights that flow from such an asocial struggle. …Tierney's work effectively refutes this entire approach to viewing the development of rights. Two recent exceptions to this school of thought are Richard Tuck, Natural Rights Theories: Their Origin And Development (1979) (acknowledging that the twelfth through fifteenth centuries were important to the development of rights, but understating their significance) and Annabel S. Brett, Liberty, Right And Nature: Individual Rights In Later Scholastic Thought (1997) (examining philosophical treatments of the concept of individual right from the thirteenth century to Thomas Hobbes's in the seventeenth century).

Strauss was a brilliant observer and interpreter of a broad section of political and philosophical thought but it appears that his grasp of the complexities of the Middle Ages is wanting. In many ways the writing of Strauss were done in a polemical manner refuting those for whom he saw inadequate theories. To some degree it is surprising that Strauss missed Ockham and this period albeit having included it briefly in some of his writings. Yet understanding Ockham requires a good understanding of the times and especially the Church. In a sense the Avignon Papacy was the end of a Papal era and the beginning of a newer one. It was however a continuation of the Papacy as one of the two swords, and the more powerful of the two.

7. Observations

We now make several observations resulting from this brief analysis.

Understanding Ockham and his time is essential to understanding the development of Natural Rights.

We have argued that understanding Ockham and in turn Natural Rights demands an understanding his times and the place he played in it. Many writers refer to Ockham and others in a rather summary and I would contend false fashion. Boyce has argued as follows:

We are only now beginning to appreciate the complexity and diversity of the intellectual matrix from which the constitutional right to property emerged. The notion that property, as a natural and pre-political right, is the source and paradigm of all other rights is commonly associated with Locke. Certainly, this notion exerted a critical influence on the framers, not only in America, as has long been realized, but also in France, as has more recently was recognized. Locke's assertion that the preservation of property was the "great and chief end" of government' resonated profoundly in both countries. Nonetheless, the Lockean rhetoric of property as a natural and absolute right, with its roots in Aristotle and Aquinas, was by no means universally embraced by the eighteenth- century revolutionaries.

Alongside this tradition flourished another that regarded the right to property as conventional and thus subject to regulation by society. This competing view can be traced from Plato and the Hellenistic philosophers, through Augustine and William of Ockham, all the way to the Enlightenment. In France, it found expression in Rousseau and his followers, and in America, in the "civic republican" tradition that profoundly influenced figures such as Franklin and Jefferson. Indeed, even within the natural law tradition, to insist that Grotius, Pufendorf, and Locke regarded property as an unqualified natural right is an oversimplification. For Grotius and Pufendorf, property was both natural and conventional, while for Locke, property was natural in the state of nature, but conventional in civil society.

If I am to read Boyce correctly, he may have misinterpreted Ockham, for Ockham and his followers saw property as a natural right emanating from the loss at the Garden of Eden and the assembly of humans into societies wherein they could now take dominium over the property that was held in common in the prior time.

Natural Rights is the conjunction of Natural and Rights. Each has their own meaning, and meanings have evolved over time. Yet the Ockhamist Revolution in understanding individual rights set the context for current day understanding.

Natural Rights exist perforce of human desires for certain things. Consider a young child just learning to speak. Two words come to mind. "No" and "Mine". The "Mine" is an expression of a right to something, property or whatever. The child, actually infant, did not gain this from his environment. It is a Kantian a priori construct. It is in my opinion an expression of a Natural Right to Property. Now no 15-month-old has any such construct, but it is a primal and "natural" expression of the "nature" of this human. Second, is "No" an expression of self-autonomy, an expression of individualism and an expression of doing what the child wants. Exasperating as a parent may be there are a multiplicity of these glimpse into the primal Natural Rights.

Thus, whence do they arise. We have argued that these Natural Rights arise in the limbic system of the brain. It is here where we find the complex signalling that forms desires, anger, and a multiplicity of emotions which distinguish the human. However, each human is different genetically and thus there may be different levels of intensity set in each brain. However, the intensity relating to say the phrase "mine", the construct of private property, may be intense to almost non-existent. Yet it is present and it is a physiological and not a Divine attribute. Natural Rights we therefore argue is a natural result of the wiring and intensity of the functioning of the human limbic system.

Thus, when we examine "Natural Rights" we see Natural as an expression of the limbic system and Rights as the specific operation of that system in a specific individual. Unlike like Locke who see the right to property as uniform, we see this right construct as variable, but existent.

Natural and Nature have been used as a catch phrase predicated on the assumption that somehow humans as part of their Nature have an understanding or knowledge of these things independent of external perceptions.

We have just examined the process of the limbic system in determining the Natural Rights profile of an individual. We argue that Nature or Natural are artifacts of the time gone by where we had no knowledge of how the human brain functions and what the emotions are related to this process, and from whence we see a "right". It is natural in the context to it being a natural part of the human structure. It is not natural in the context of some abstract attribution of some common and equal facility in each human.

This limbic variant is natural and is independent of external perceptions, that is a priori, but it may not be ascertained unless initiated by an external stimulant. Thus the "mine" is evoked when someone sees something being intermediated in some manner.

In fact, Natural or Nature has a firm foundation in the genetic makeup of the human species along with the variants of individual genetic differences. As such the genetic basis for Natural and Nature also establishes a firm scientific understanding for Individualism.

This statement is fundamental to our current construct.

Natural Law follows, rather than precedes, Natural Rights. Natural Rights may require delimitation in a societal context and thus the need for Natural Law, the societal controlling of Natural Rights

Natural Rights as we have described them as primal. They our in our DNA. Natural Law is Law that controls the Natural Rights. Take property rights. If we were all allowed to say "mine" without some rules we would have chaos. Thus, humanity has evolved a set of rules predicate on Natural Rights. This description is counter to many previous authors who see Natural Law as Divine Law. Divine Law which supersedes Natural Rights. I am arguing that it is the other way about. It is the Natural Right and its distribution amongst humans that needs and ever-changing set of rules to avoid conflicts.

Justice is the uniform and equitable application of Natural Law.

Justice as a construct has been considered for millennia. In our understanding we relate it to Natural Law which follow from Natural Rights. Thus, Justice applies Natural Law, the law of consensus, to the balance of the Natural Rights of the parties. This is a description of Justice which is in contrast to some of the left-wing thinkers of today.

Consider the review of the work of Rawls, already somewhat extreme left, by Sandel, in a paper by Baker:

After describing the theory of the person to which he finds Rawls committed, Sandel claims that Rawls-and deontological liberalism generally-fail because of the inadequacy and extreme individualism of this notion of the person.

This individualism does not allow for the role of community in constituting the person, nor does it allow for the possibility that a person's meaningful identity is more a matter of cognition than choice. Sandel develops each objection into a major line of critique.

In the first critique, Sandel argues that the theory of the person to which Rawls is committed is inconsistent with Rawls' difference principle.  The difference principle requires that basic societal institutions maximize the position of the worst off. Sandel claims that if the moral subject is an individual, then the difference principle will involve the conscription of some people's talents in order to benefit the worst off; the difference principle thereby treats those subjects as means.

Only a group or community subject could both choose the difference principle and, since each person's talents would belong to this larger subject, avoid treating the moral subject as a means. Thus, the Rawlsian theory of the moral subject as an individuated person is inadequate to support his theory of the right.

Sandel's second critique emphasizes that Rawls is committed to a thin, denuded notion of the person-a person separate from all ends, commitments, and capacities. This self is so sparse that it cannot constitute an object for self-reflection. It can only be a subject that is, at most, capable of arbitrary and ultimately meaningless choice. The arbitrariness and meaninglessness of this choice result in another fault-an inadequate theory of the good. In combination these two critiques argue that Rawls' notion of the person is neither appealing, consistent with our understanding and experience of ourselves, nor adequate to support Rawls' theory of justice. Specifically, the Rawlsian theory is inconsistent with selves who are constituted by their values, character, commitments, and practices, who are partially constituted by their membership and participation in communities, or who engage in deep self-reflection.

Rawls was moving to Group Justice and Sandel has taken it all the way. From Sandel we see the true underpinnings of Social Justice, a Group dynamic and control. Yet who gets to decide who is in the Group.

Social Justice is the applications of laws to benefit Groups or Classes rather than individuals. Social Justice is fundamentally the many controlling the few to benefit the many.

Social Justice is a recent construct. Fundamentally it may be connected to the Aristotelian constructs but it is materially different. Social Justice is Group Justice,

Social Justice is the antithesis of Natural Rights

Natural Rights is individualism expression of individual humans. Social Justice is the law of the Group. Natural Rights are what each person has a right to whereas Social Justice is the Groups redistribution of those Natural Rights according to a formula which the Group determines. It is fundamentally a total abnegation of Natural Rights.

References

1.     Baker, Sandel on Rawls, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4040&context=penn_law_review

2.     Boyce, Property as a Natural Right and as a Conventional Right in Constitutional Law, Loyola of Los Angeles International and Comparative Law Review Law Reviews 3-1-2007

3.     Burns, J. H., ed., The Cambridge History of Medieval Political Thought, c. 350 – c. 1450 (Cambridge, 1988).

4.     Cassirer, Grace and Law, Eerdmans (Grand Rapids) 1988

5.     Catlin, Political Philosophers, Tudor (New York) 1939

6.     Gray, Political Theology and the Theology of Politics: Carl Schmitt and Medieval Christian Political Thought, presented at the 2003 annual meeting of the American Political Science Association held in Philadelphia, Humanitas, Volume XX, Nos. 1 and 2, 2007

7.     Krebs et al, Neuroscience, Walters Kluwer (New York) 2012

8.     Lahey, Wyclif on Rights, University of Nebraska – Lincoln DigitalCommons@University of Nebraska – Lincoln Faculty Publications, Classics and Religious Studies Department Classics and Religious Studies, 1997

9.     Liddell, Kant and the Foundation of Morality, Indiana (Bloomington) 1970

10.  Lisska, Human Rights Theory Rooted in The Writings of Thomas Aquinas, Diametros 38 (2013): 134–152

11.  Mäkinen, The Evolution of Natural Rights, 1100–1500, Petter Korkman & Virpi Mäkinen (eds.) 2008, Universalism in International Law and Political Philosophy

12.  Miethke, The Power of Rulers and Violent Resistance Against an Unlawful Rule in The Political Theory of William Of Ockham, Revista De Ciencia Política / Volumen Xxiv / Nº 1 / 2004

13.  O'Donovan and O'Donovan, A Sourcebook in Christian Political Thought, Eerdmans (Grand Rapids) 1999

14.  Peters, "Literature," the "Rights of Man," and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony, Yale Journal of Law & the Humanities, Volume 17 Issue 2 Article 3, 5-8-2013

15.  Reid, Medieval Origins Catlin, Political Philosophers, Tudor (New York) 1939 of the Western Natural Rights Tradition: The Achievement of Brian Tierney, Cornell Law Review Volume 83 Issue 2 January 1998

16.  Strauss and Cropsey, History of Political Philosophy, 3^rd Ed, Chicago (Chicago) 1987

17.  Strauss, Natural Right and History, Chicago (Chicago) 1953

18.  Tattay, Francisco Suárez As the Forerunner of Modern Rationalist Natural Law Theories, Cauriensia, Vol. XII (2017) 191-211

19.  Tierney, The Idea of Natural Rights, Eerdmans (Grand Rapids) 1997

20.  Tuck, Natural Rights Theories, Cambridge (New York) 1979

21.  Van Duffel and Robinson, Ockham's Theory of Natural Rights, http://individual.utoro nto.ca/jwrobinson/articles/vanduffel-robinson_ockhams-theory-of-natural-rights.pdf  2010.

22.  West, The Political Theory of the American Founding, Cambridge (New York) 2017

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[1] https://plato.stanford.edu/entries/suarez/#DisJus

Natural Law?

In a recent article in The New Republic[1], the author alleges the following regarding Natural Law and Natural Rights.

One obvious drawback to natural law theory is that it requires legislators to fully comprehend human nature, a topic of considerable philosophical—not to mention sociological, psychological, and medical —disagreement, with many scholars doubting the very existence of a universal human nature. Another, however, lies in the historical origins of natural law theory, which are theological. The medieval Christian theologian Thomas Aquinas believed that the nature of things is revealed by their purpose. The nature of a pen is to write, because that’s its purpose. But what is the purpose of the human being? According to Aquinas, humans could discover their purpose simply by applying their reason. But the answer they would find, he argued, happened to coincide with what God intended that purpose to be. In practice, that meant that Aquinas believed the purpose of humans included procreation, and that sexual acts that did not take place within a context geared towards reproduction were immoral. Natural law is still used today by its proponents as a justification of the view that gay sex is morally wrong, as well as for banning abortion, and even contraception.

Aquinas was a 13^th century Parisian philosopher whose works represent the pinnacle of scholastic philosophy. It was in many ways a canonization of Aristotle placed in a Christian milieu and attempting to establish Christian thought as reachable by reason. It would take Ockham some fifty years later to reinsert faith in such issues as the Eucharist. Namely, it would be Ockham that said; one relies upon reason to go too far and fail to rely upon faith and the Biblical texts.

The concept of natural rights as a check to state power evolved in the seventeenth century out of natural law theory. As citizens, the idea went, we tacitly enter into a social contract with the state: We agree to obey its laws in exchange for security, social order, etc. But there are limits to what those laws can dictate —certain things the state cannot, without legitimate reason, take away from us, and, in fact, has a responsibility to protect: our natural rights, integral to our human nature and granted to us by God. According to English political theorist John Locke, these rights included life, liberty, and property.

Natural Rights are twofold. First, they are Natural, whatever that means, and as such are inherent in all people perforce of their humanity. Second, they are rights, which we seem to see as a term much more comfortably. But rights to the Medieval were unheard of since then people were subjects, they were not citizens, namely Kings and Popes were at the top, and serfs were nowhere to be seen. It took initially Ockham and his revolt against the Avignon Papacy and then Locke and Rousseau to examine and articulate elements of individual rights. Natural Rights are Individual Rights, and they are Natural because people, individuals, think they are.

Natural law and natural rights don’t necessarily have to be used to promote a conservative, religious moral agenda. Sanders himself has said that the right to healthcare comes from "being a human being”—a claim echoing natural rights language. There are also scholars who have argued that abortion rights are in fact natural rights. Some debate on natural rights is to be expected, given that human nature and its moral implications are hardly consensus-generating topics. But this also suggests appeals to natural law might not be a good guide to drafting legislation: The defense and interpretation of human rights is ultimately a political project, and should be treated as such.

Philosophers from Aquinas, Ockham, Locke, Kant and others have struggled with Natural Rights and Laws. The key question is; what is natural or in one's nature? How does one determine what is natural and how does one ascertain that some act is natural or un-natural? Without stating details, which, depending on who one is, could be quite extensive, we can simply ask; why do many people consider acts of a few as un-natural if those people find them natural? Again we defer on any example.

One can say that it is the nature of a wolf to hunt in packs, it is the nature of a chipmunk to be solitary, it is the nature anything to do what it does. The latter is a tautology, but the two former are really just biology. Namely the genetic makeup of wolves and chipmunks do what they do because their genes are programmed to reinforce certain behavior and suppress others. It is a result of the natural selection of these species.

Thus, one may posit that it is in the nature of humans to be social, to hunt, to farm, and the list goes on. It is also in the nature of humans to kill. Wolves kill, primarily to eat, but they will also do so for pack leadership. No one trains wolves to do this, it is in their nature, namely their genetic makeup. Man kills and it may very well be in the makeup of that specific individual. It may be suppressed in the makeup of many individuals which is why the military must bring this trait out of many who otherwise would not be "naturally" inclined to kill. There are mass murders, very few, but they exist. One could posit that it is in their nature, and one could then posit that this means it is in their genetic makeup. After all we blame genes from everything from drinking, smoking, obesity, and drug abuse. But perhaps there is more than a bit of truth here.

Thus, when we say that something is in the nature of an entity or natural we are asserting a pre-programmed genetic response. For example, take the limbic system. This is a section of the brain, internal but a significant neural connection matrix, which is generally composed of the hippocampus, thalamus, hypothalamus, and amygdala. The limbic system is a powerful system in the brain. It controls emotions, desires, controls the sorting of short term memory to long term. The limbic system has what is termed limbic valence, the imprinting of a collection of ideas and emotions and reactions. It is the limbic valence that imprints a memory of just where we were on say 9/11 or the day Kennedy was shot. It is the limbic system that evokes the responses we often see as PTSD. It is the limbic system that "tells" us right from wrong and what we see as rights. Thus, one can argue that the "Nature" Aquinas and the others argued about is in essence the limbic system, and the limbic system is wired and operates under a genetic profile in each human. Namely the limbic systems are individual and different, but almost the same.

Thus, when we look at "Natural" as generally acceptable limbic responses we are integrating many individual limbic DNA responses and finding commonality. Murder is bad, except for those who have a limbic system for which the DNA has somehow turned that switch off. Society however creates laws, things which delimit our rights. Most people do not think they have a right to murder. Thus a law is created to delimit that "right" that some few may think they have.

Now the discussion above is part science, part biology and part speculation. It is an attempt to give a non-Kantian definition to what is Natural and in turn what is a Right. Instead of invoking God directly we invoke what we know about the human and frankly all species. Thus when we say it is in their nature we are saying that it is in their DNA. But like Ockham, we assert that each is an individual, with different DNA, and thus laws are a necessary sequella to Rights since laws are controlling the putative rights of the few for the benefit of the many.

Grotius is a seventeenth century Dutch writer on the law who spent much of his life in France but heavily involved in establishing international legal principles. He incorporated in his thinking certain constructs of natural rights worth considering.

As Darwall notes[2]:

An imperfect right, on the other hand, is not a “Faculty” but an “Aptitude.” Under this heading, Grotius includes considerations of “Worth” and “Merit” that can recommend actions as more or less worthy or meritorious, but which no one has standing to demand “Prudent management in the gratuitous Distribution of Things” to which no individuals or society has a valid claim may nonetheless recommend giving preference to “one of greater before one of less Merit, a Relation before a Stranger, a poor Man before one that is rich” (I, 88). But while “Ancients” like Aristotle, and even “Moderns” who follow him, may take considerations of the latter to be included within justice and so right (it is what Aristotle and his followers include under “distributive justice,”)23 nonetheless “Right, properly speaking, has a quite different Nature,” namely, “doing for [others] what in Strictness they may demand” (I, 88-89). The strictly proper, modern sense of right as a quality “annexed to the Person,” according to Grotius, is the one he here identifies: respecting persons’ authoritative demands and, we might add, their “Faculty” or authority to demand it.

In its final sense, ‘ius’ or “Right” signifies the same Thing as Law when taken in its largest Extent, as being a Rule of Moral Actions, obliging us . . . . I say obliging: for Counsels, and such other Precepts, which however honest and reasonable they be, lay us under no Obligation, come not under this Notion of Law, or Right.

Grotius follows this with his definition of the “law” or “right” of nature:

NATURAL RIGHT is the Rule and Dictate of Right, Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or to a reasonable Nature.

Barbeyrac notes that other editions interpolated “and Sociable” between “reasonable” and “Nature” and says there is some reason to believe that these were simply left out by a printer or transcriber. As he points out, when Grotius distinguishes between a priori and a posteriori proofs of laws of nature, he brings in sociability explicitly. A posteriori proofs appeal to a consentium gentium, that is, to something being “generally believed to be” natural law “by all, or at least, the most civilized Nations” . An a priori proof, by contrast,

He continues:

Tuck points out that in the Prolegomena to the first edition, Grotius says that the law of nature “necessarily derives from intrinsic principles of a human being” and that the law would hold “even if we were to suppose . . . that there is no God, or that human affairs are of no concern to him” (Grotius 2005: I, xxiv; III, 1748-1749). Tuck notes that Grotius is less direct on this point in later editions.

There Grotius says that

“Natural Right [the Law of Nature] is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature”.

This might encourage the Suarezian thought that genuinely obligating natural laws require an authoritative divine direction that is consequent upon any intrinsic reasonableness or unreasonableness and that the latter is impotent to provide all by itself. However, Grotius then adds that actions that are thus suitable or unsuitable to a reasonable nature are “in themselves either Obligatory or Unlawful, and must, consequently, be understood to be either commanded or forbid by God himself”. This means that the obligatory character of natural law depend not on divine legislation, but vice versa.

and furthermore:

A perfect right is a “Faculty” of the person, which includes the standing or authority to “deman[d] what is due” to him, including, Grotius says, “Liberty,” or “power over ourselves” (or over others who are under his authority) and property. Grotius adds that such a faculty “answers the Obligation of rendering what is owing”.

There can be natural rights, therefore, only if natural law includes genuine obligations to respect them. And among our natural rights is Hegelian subjective freedom, that is, autonomy or our “power over ourselves.”

We can examine Grotius directly we have a discussion of rights, justice and the term natural in his work On War and Peace[3]. He writes on the topic of Natural Rights and attempts to delineate them and establish them as some basis in fact. We examine several of his definitions.

The title of this work, On the Right of War and Peace, should be understood in the first place in terms of the questions I have begun by raising: Is there such a thing as a just war? and What is just conduct in war? “Right” in this context means simply, what is just —“‘just” being understood in a negative rather than a positive sense, to mean “what is not unjust.” “Unjust,” in turn, means what is inconsistent with the nature of a society of rational beings. However, “society” can be of two kinds: a society of equals, e.g., brothers, citizens, friends, allies; and a society of unequals, Aristotle’s kath’ huperochen, as of father and children, master and servant, king and subjects, God and men (NE 1158bl2). So there are two kinds of justice, the justice of those who live together as equals, and the justice of those who rule and are ruled, in whatever respect that relation is relevant. The technical terms rectorial Right and equatorial Right refer, I believe, to these two.

Thus, above we have his first definition, a right is simply what is just. For Grotius just is simply what is not unjust. Indeed, this is apparently circular. For he then says unjust is what is inconsistent with the nature of society. But who is society and what mechanism does this society use to make this decision? For if it is just a majority and then one society can have something being unjust and another being just. There are lots of societies and thus lots of unjust and thus a conflicting assemblage of natural laws. Yet perhaps that is nothing more than a reflection of the disparity amongst human DNA. How would this change is instead of just a majority we required a near total consensus, say 95% agreement? Would this result in some form of "natural" convergence in the Grotius I definition?

Now Grotius continues:

[4] There is a second distinct sense of “right” deriving from the first, which is attributed to a subject [“subject” in the grammatical, not the political, sense]. A right is a moral quality attaching to a subject enabling the subject to have something or do something justly. A right, in. this sense, attaches to the subject even though it is sometimes associated with a thing. An example: the ownership of an estate carries with it the right to certain services. These are called “real rights” in contrast to “purely personal rights.” It is not that real rights do not also attach to persons; they simply attach to the person who has the thing. A moral quality may be said to be “perfect,” in which case it is called a “faculty,” or it may be less than perfect, in which case it is called a “fitness” These two categories correspond to the categories of act and potency in metaphysics.

This Grotius II right is more in line to what we have been using as a right. It attaches to the subject, it is "my" right, my enabling to have or do something. I have a Grotius II right to free speech, to own property, to practice or not practice a religion. Here Grotius presents rights as something attaching to a person, an individual, devoid of any societal context.

There is a third sense of the term “Right,” which means the same as “law,” understanding “law” in a broad sense as a rule of moral action obliging us to do what is correct. It implies obligation; for counsels are not called “law” or “Right” even if they take the form of nonbinding precepts. Permission, too, is strictly not an act of law; rather, it is the negation of an act, except in so far as it obliges someone else not to interfere. Our definition contained the words “obliging us to do what is correct” (rectum) not “what is just”; for Right in this sense is not only concerned with matters of justice, such as we have explained it, but of other virtues too. However, from this sense of Right (ius) the word “just” comes to have a looser sense equivalent to “correct” (rectum). The best analysis of Right in this sense is Aristotle’s: there is natural Right, on the one hand; on the other, there is voluntary Right (which he calls legal Right, using the word “law” in a narrower sense than ours, or sometimes to en taxei, positive Right).

This Grotius III definition is the more classic one handed down from Roman Law, the right one has in an object usually perforce of some established law. Thus I have a right of use in my car, my house, my clothing.

He continues:

[10] Natural Right is what correct reasoning prescribes when it identifies moral turpitude or moral necessity in a given act by virtue of its compatibility or incompatibility with our rational and social nature, with the inference that acts of that kind have been forbidden, or commanded, by the author of nature, God. Acts which are the object of such prescription are obligatory or illicit in themselves, from which we infer that they are necessarily required or forbidden by God. This is what distinguishes them not only from human Right but from divine voluntary Right; for that does not require or forbid things obligatory or illicit in themselves, but makes them illicit by forbidding them, or obligatory by commanding them. We should note that there is a looser sense (what the scholastics like to call a “reductive” sense) in which some things are said to be of natural Right because they are not inconsistent with it; as we have now defined as “just” those things that are not unjust. Sometimes, too, the phrase is used in a secondary sense of actions which reason identifies as virtuous, of superior to the alternative, though not obligatory. We should also notice that natural Right is not only to do with acting in situations that arise independently of human will, but with many situations which arise as a consequence of human actions. Ownership of property, as we know it now, is 3-h.u- man institution. But given that institution, natural Right is enough to forbid me to take your property without your permission.

Grotius concludes some of this discussion with an argument for demonstrating something as a natural right.

[12] There are two ways of demonstrating that something is of natural Right, one a priori, the other a posteriori. The former needs more finesse, so the latter is more often encountered. The a priori proof is to show that there is a necessary compatibility or incompatibility of something with our rational and social nature. The a posteriori proof, which does not admit of absolute certainty but of a reasonable degree of probability, infers that something is of natural Right from the fact that it is accepted by all nations, or at least by the more civilized. For a universal effect must follow from a universal cause; but what cause could there be for such a generally held

evaluation other than what is called the “common sense” of mankind?

Unfortunately this proof again relies upon the demonstration of something predicated upon reason or nature. It is again a circular argument. Yet if we return to Grotius in the context of our argument regarding Nature and DNA then we have removed the circular elements.

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[1] https://newrepublic.com/article/154192/sneaky-politics-natural-law

 

[2] Darwall, Grotius At The Creation Of Modern Moral Philosophy, 2008,https://www.semanticscholar.org/paper/GROTIUS-AT-THE-CREATION-OF-MODERN-MORAL-PHILOSOPHY/d7805333f5678caaf66f9410fb7438253cebdab3

[3] See O'Donovan and O'Donovan p 767 218. O'Donovan and O'Donovan, From Irenaeus to Grotius, Eerdmans, 1999.