This article addresses the fact that there are moral laws and natural rights, as in reference to the social contract. Not all ethics is naturalistic. This substack makes the case for ethical non-naturalism here. To provide an analogy, its more like math than science.

I address what I mean by freedom here and here. They were linked in the article as well. If you find anything specifically inaccurate or something that I can clarify, I'd be happy to address it.

That’s what I argue in the piece.

Yes I discuss the fact that democratic majorities don’t have inherent moral legitimacy here. And that unjust laws are a breach of the agreement in a previously linked post. But that is not what my comment stated. Just because we don’t consent to certain moral rules doesn’t mean we aren’t morally bound by them. Otherwise, consent is meaningless (because why respect anyone’s consent if we don’t have moral rules?).

Just because you do not consent to our criminal law regime doesn’t give one the right to commit crimes. People can’t consent out of the moral universe. And those principles of the moral universe shape our very consent rules (when consent is and is not necessary nor sufficient to create binding agreements, what type of consent is required, what is and is not subject to consent etc.)

That’s basically what my substack is dedicated to discussing. But I answer those questions here here and here respectively.

Mens rea and actus reus only refer to mental states and actions. Different crimes require different mental states and actions, so they aren’t helpful for actually shaping criminal law. They’re just legal elements (and this only applies to criminal law).

Involvement is determined by proximate causation, which would depend on reason-based factors (intentions, foreseeability, geography, etc.) Again, it’s not intuitive and even the rights that seem straightforward tend to have exceptions. For instance, you won’t have the right to kick someone off of your property if they have taken that property through adverse possession (which also depends on reason-based factors). The standard which we can say an act is right or wrong is based on social contract principles. Simply declaring rights isn’t helpful for the specification, prioritization, or genealogy problems I discuss in the piece. Libertarianism fails to address these problems.

And what is the basis for exceptions to the rule? It would have to be ethical principles as well.

The same goes for consent, as I describe here, (are we talking about informed consent, implied consent, consent with attorney representation, consent under duress, etc).

The basis which we determine exceptions to rights, like the right to freely walk (or someone else’s right to stop you) or where consent isn’t necessary or sufficient to create an agreement, is the social contact, which is made up of publicly justifiable reasons.

All rights require a duty to be imposed on someone else. And those duties need to be justified. Again, they aren’t intuitive. It’s not as simple as stating “just don’t be a jerk.”

1. I argue that natural law is based on social contract theory and those rights would have to be within the powers of one's freedom
2. I wouldn't claim its an unalienable right (we allow government takings and adverse possession). Property rights require specification and prioritization, which social contract theory specifies.
3. There is no consensus that I'm aware of. Inalienable rights is misleading, since rights require specification and are subject to reasonable restrictions. They aren't trumps according to my conception of them. I use natural rights.
4. In Europe, before the enlightenment, natural law theory was based on divine providence, so god.
5. It may have depended more on power than reason, so the most powerful.
6. No, this is actual the strengths of contractualism/social contract theory. It can explain moral obligations and political legitimacy.
7. Yes, since rights implies duties.
8. Then reason must figure out an ordering of rights. This ordering may be universal (the social contract stage), based on national values (the political constitution stage) or based on the applicable law (the formal law creation stage).

It depends, There would be cases where one may not have a right to walk away (say, the person is being arrested for a crime) or someone else's rights might trump the right to walk away (for instance, if a parent is trying to walk away from a child).

The ethical standard we use to specify and prioritize rights are found in the social contract, which is based on freedom and justifiable reasons to require duties from others. The article explains that rights aren't intuitive. The thousands of pages of contract law, property law, criminal procedure law etc. aren't intuitive. They are based on reasons that justify imposing duties onto others.

Summary: What are rights? They are entitlements paired with duties. But how can these rights be practically specified in the real world? How should we prioritize rights against one another? And where do these rights come from? Traditional libertarian rights theories fail to answer these questions of specification, prioritization, and genealogy. But a social contract analysis does.

I'd appreciate any feedback and criticism on this theory of rights so I can develop it further. I'd be happy to address any questions.

Thank you for the review and I'll check out the literature you cited!

I argue in the piece that democracy lacks inherent moral and epistemic value. I'll argue for its instrumental value in a later piece though. It lacks moral value since democratic decisions may stray from ethical principles of the social contract (tyranny of the majority) and it lacks epistemic authority since there are certain systemic biases of the electorate (anti-market, identitarian biases, etc.) that inhibit any resulting wisdom of crowds. Especially as laws require more complexity to deal with modern issues.

On the first point, I argue that certain decisions would be better handled through expert-led agencies and courts. They already perform this role in some regard. For example, courts have been enforcing social rights in the face of democratic legislation, but not economic rights.

On the second point, I mean reason as publicly recognized justifications. The SEP on Public Reason captures my view fairly well.

If you have any more reading recommendations, I'd be happy to review them and address their arguments in later posts.

Thank you so much! The incentives of politicians and the public good can be misaligned, which is why there is no inherent authority to decisions made by the former.

Thank you for the recommendations! I will review that literature and will incorporate those ideas into my next post.

I agree with Rawls's original formulation of Public Reason since I believe certain moral values should be imposed on constitutional deliberation for political authority to be legitimate. This means that religious/aesthetic based arguments would be excluded from deliberation.

I argue in the piece that epistemic defenses of democracy are also insufficient. The empirical literature on deliberative democracy is weak and given certain anti-market/identitarian biases of the public (Caplan 2007 and Bartels and Achen 2017 respectively). This is why I believe experts should play a greater role as lawmaking demands more complexity.

That's what I argue it should be. Yet from a US standpoint, too much discretion is currently given to democratic majorities and legislative action. At the end of the piece, I argue that courts and agencies should play a greater role in curbing the actions of majorities when they conflict with reason.

Yes, I wrote in another comment that values and power distributions are the best arguments for democracy.

I’ll be arguing that democracy is useful for establishing these overarching values where the moral principles of the social contract are ordered in terms of priority. These are the values of a society which may be expressed through voting. Although this is different than policy making, which turns those national political values into concrete legal rules. The former applies moral principles to social and cultural circumstances to create constitutional values whereas the latter applies those constitutional values to social facts to create legal rules. Yet reason is applied in both cases. Values that can’t be publicly justified aren’t values that have political authority.

One’s religious, artistic, or personal values can’t have any political authority over others who don’t share those values. What has political authority is reason, more specifically, those principles which can’t be reasonably rejected. Those are our moral principles, which any legitimate political and legal institution needs to be based on.

And it would be either private parties or experts (judges, admin agencies, etc.). Although this power would be based on degrees rather than purely categorical. There are instances where reason would require majority rule vs expert judgment.

I’ll be writing in article discussing this further that addresses the trustee vs delegate issue.

I actually think power distribution and enshrining national values are the best arguments for democracy and I’ll be discussing them in a future posts. Yet these are only good to the extent they lead to good decisions.

If power distribution instead lead to factionalism rent seeking, or poor policymaking overall, and if a better method of policymaking was available, then we’d be better off with that other method instead.

For instance, international data shows that a more independent central bank leads to lower inflation. If we cared about lower inflation, we should give more discretion to a central bank rather than elected politicians in creating monetary policy.

Good pick up and I should clarify. The argument I make in my substack argues that political authority requires moral authority.

Basically it’s: reason>moral principles of social contract> constitution> formal legal rules.

If you have any questions regarding this argument, I’d be happy to address them here and in future posts.

I argue that not even 1 has political authority. Popular support can't make an unjust law just.

Not interest groups themselves, but laws that only serve as interest group protection. My theory of natural law argues that reason is the only justifiable restriction on freedom. These reasons create moral principles and those moral principles applied to social facts create just laws. To the extent laws are arbitrary, they are unjust laws.

The example I provide is the trade restriction in Williamson v. Lee Optical. Basically, since courts have recognized rights in the social sphere (as shown by equal protection and substantive due process rulings) similar rights should be recognized in the economic sphere to strike down laws that lack a rational basis.

The article relates to whether democracy is an inherent good with inherent political authority, or derives its authority from something else (I argue the latter). Based on how I use means vs. ends for instance, I would say that economic development, higher literacy, better health outcomes, and robust human rights protections are inherently good. Yet I wouldn't say the same for democracy, which is only useful to the extent it is able to produce those goods.

Summary: The article reviews the main defenses made on behalf of democracy and argues that they are insufficient to provide it with inherent political authority. Instead, reason, which creates and shapes the moral principles of the social contract, has authority. And it’s these reason-based moral principles that must be reflected in our laws.

While these moral principles would often require democratic rule due to the outcomes of democratic regimes, to the extent that moral principles and democracy conflict, we should side with those moral principles. As a consequence, the article then argues that courts should recognize natural rights and become more active in striking down arbitrary laws like interest group legislation.

Any comments, questions, or critiques would be much appreciated!