TH: My apologies for the delay. For the sake of brevity, I will omit any part of your reply which isn't relevent to the core of the discussion.
Too bad. They had a great deal to do with the framing of the law.
Is/ought. I'm just going to assume that you and I are both in agreement (whatever our other disagreements may be) that law is, first and foremost, a dictate of reason. Even when I initially read this section of the
Summa Theologiae (being more inclined to Kant), I didn't disagree with St. Thomas at least in this respect, that law is something pertaining to reason, not to the will:
"I answer that, Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for "lex" [law] is derived from "ligare" [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (1, 1, ad 3); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason" (
ST I-II, q. 90, a. 1, corpus).
If you and I are agreed that the dictate of reason, and not the mere will of the lawmaker, is the ultimate standard of all law (human or otherwise), then even if I agree with you that the lawmakers primarily had consequences in mind when they framed the law, then this proves nothing normatively. It well may have been their intentions, but this simply means that 1. it's a bad law or 2. it's a good law promulgated for bad reasons.
Granted that the lawmakers had consequences of policies x-z in mind, they
ought not have. They
ought to have looked solely to the
intrinsic justice of policies x-y.
That's fine. I've addressed that as well. When you ask for a harm, pointing out the marginalization, the economic reservation that is created, the social disenfranchisement and denial of the opportunity to pursue the happiness that is our birthright is that harm.
The problem with this answer is that none of these "harms" actually mean anything. These are all emotionally charged words that don't actually analytically describe a state of affairs. What does "marginilization" mean, and why should we gaurd against it? Until you actually cash out what you mean by these terms, you simply have failed to describe an actual harm.
This is especially true when it comes to this final "harm." The denial of the opportunity to pursue happiness? 1. What is happiness? 2. How does my refusal to sell a product to someone get in the way of their happiness? 1a. Is happiness something that can be bought and sold? If not, then clearly, I'm not getting in the way of anyone's pursuit of happiness by refusing to sell a product.
"The pursuit of happiness," in the context of the DoI, is an incredibly vague notion. It was a lot clearer in Locke, and frankly, I think there would be fewer disputes on the notion if only they would have kept the initial triad of rights: not "life, liberty and the pursuit of happiness," but "life, liberty and property." And these all have very definite meanings: "Don't kill me. Don't imprison me. Don't steal from me." These are all purely negative in meaning. These all describe purely negative rights,
restrictions on human action which exist even in a Lockean state of nature.
But you are trying to demonstrate that shop owners should have a legal
obligation. I'm sorry, but this simply doesn't follow from what was initially conceived as a purely
negative right.
All of your other so called "harms," I think, ultimately reduce to the following: they failed to take part in the positive benefits which they otherwise would have enjoyed by their social interaction with those people who refused to engage with them." To which I can simply answer: "You have not proven that such a right exists. If they don't have such a legal right, then no legal harm exists even when these things are present."
Sure, depending on how you define an evil and how you define the good.
In the sense given to us by Natural Law.
That's not the question before us, though it has been settled by our compact also. We hold that the state can interfere in any right, including the right to life, but not without a compelling interest being served, like justice or the necessity of balancing your individual rights with the rights of your neighbors. Once you realize that you understand how the rest of our approach fails.
You might indeed hold that, and Americans (and civilized westerners in general), might indeed hold that, but for all that, you simply wouldn't be right. If even the State interferes in a genuine right, then the State acts
ultra vires. It acts, not lawfully, but unlawfully. It exceeds its proper authority, and this may justify either protest, rebellion or revolution.
To which, of course, you can answer me that a criminal seems to lose his right to life when he's imprisoned. I answer, in turn, that perhaps the Lockean (and, in general, modern) notion of "right" may be off. In order really to understand what's happening, perhaps a more robust (and Latin/Medieval) sense of "ius (right)" is required. That is, instead of considering "my right," we should consider what is "the right."
And in that sense, the criminal certainly isn't "losing his rights" or "having his rights being taken from him" when he is imprisoned. Rather, he has
the right (
ius) to be imprisoned. For the criminal, imprisonment is "the right" or
ius.
So the State never legitimately may act against "the right." If the State acts contrary to what rightfully and objectively is "
ius," then the State acts
ultra vires. It acts un
justly.
Which is only a way of saying the individual as opposed to the collective good. But even in that you misstep a bit. The public good is aimed at protecting the private enjoyment by limiting interference between parties, setting boundaries. It isn't a separate thing.
This is the modern notion. I'm not entirely sure that it's right. If you say this, then you end up saying that the common good (or the good of the whole) is nothing but the good of each of the parts. But this seems false: the whole seems to be something which really is greater than the sum of its parts. The State really is something more than "each of the citizens added together."
The private good is no more separate from the state than the public good serves some other function than to facilitate that "private" good/enjoyment of right. You're thinking about it wrong.
If Locke is right, sure. But I deny this. In any case, this is what I had in mind, as I mentioned to Memento Mori:
"Whatever is for an end should be proportionate to that end. Now the end of law is the common good; because, as Isidore says (Etym. v, 21) that "law should be framed,
not for any private benefit, but for the common good of
all the citizens." Hence human laws should be proportionate to the common good. Now the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times. Because the community of the state is composed of many persons; and its good is procured by many actions; nor is it established to endure for only a short time, but to last for all time by the citizens succeeding one another, as Augustine says (De Civ. Dei ii, 21; xxii, 6)" (
ST I-II, q. 96, a. 1, corpus).
Don't pay your taxes and see about that.
The right of the State to impose a property tax ultimately arises from the relation of the individual property to the whole of the State and the network of services that it provides (for example, the police department). But suppose that I had a house in the middle of nowhere and I received absolutely no services from the State. Suppose that I were so far away that not even the military could come to my aid. Would the State really have a right of taxation in that case?
You have the right to ownership of things and rights of expression and all of them are subject to the interactive restrictions and obligations tied to the general welfare and common good. Your notion is fundamentally flawed.
I've hilighted the keyword. In any case, I don't disagree with this. The key here is how we understand the above. You are presumably taking this notion of the interactivity between part and whole in an extreme sense, and quite frankly, I don't see how you can avoid communism. If absolutely everything is subject to the mere will of the lawmaker (even if it be the whole people)...?
As I've noted prior, you have any number of rights that we deem inherent. But all of those are subject to abrogation.
If there is "the right" or
ius with respect to private property, then not even the State can abrogate it.
Depends on what you think that means. You have a right to property. You don't have a right to do whatever you want to with that property. Your right is necessarily limited in relation to my own, be that property fixed or mobile.
No, this is certainly true. To the extent that my property enters into relation to you, then there are restrictions which prevent me from acting in certain ways. I can't use my property to harm you. But beyond that? What you are arguing for isn't a
restriction to my action. You are arguing for an
obligation.
I don't see it. Shopowner A is under no
obligation to open shop x. He is under no
obligation to sell anything to anyone. It seems to follow trivially that shopowner A therefore is under no obligation to sell to B.
The state tells you any number of things you may do or cannot do and when and how you can. If you hunted you'd know that. If you ever tried to carry your weapon without a license you'd find that out. If you went out into your back yard and fired into the ground a few times you might discover a fact or two. You don't even have the right to own that gun if you've committed a felony...and so on.
This is an extreme example, though. I mean, isn't weapony, as a class of cases,
sui generis? Weaponry, in its very
ratio (or notion), already carries the notion of relation. A gun fires bullets
at things. When a weapon is conceived as a weapon, it is already conceived in its very
ratio as being in relation.
You're wrong. Most business is conducted under license. The state is involved. All transactions that take more than a year to complete or are for over five hundred dollars, regardless of time involved, are required to be set to written contract. The state is heavily invested in the equity of contract and the elements of establishing legal transfers of goods and services.
I've already agreed that the State has the right to govern interaction, which seems to be what you're pointing to. But you're not arguing this. You're arguing for something further, namely, that the State has the right to impose an interaction. I agree: "If you will enter contract x, then you must..." But you're saying that the State has a further right of claim: "You must enter into contract x."
This simply doesn't follow from the above.
Yes, that's precisely what you're doing. You may even be the only sandwich shop in town. And maybe the only store in town feels the same way as you do and won't sell the means to anyone of color. So they can't buy goods in your town. Maybe they can't buy anything else as all the merchants feel as you do and the families who are attempting to sell land won't sell. That means they can't live in your town. And the state is telling you that you can't do that. You can't decide who lives in your town and eats a sandwich on the basis of your personal prejudice.
I've decided to skip down to this part, since this is the real meat of the issue.
Your claim is that the black person in question would be "marginalized," etc. if the above were the case. Let's simplify things:
Suppose that there is a town which consists of 8 farms. Each farm holds 1 family. Each of the 8 families has a skill which none of the other farmers has. One cooks well, the other makes farming tools, etc. Now, let's suppose that there is no exchange of money; therefore, no business. Each of the 8 families is deficient in some aspect of farm life, and therefore would not be able to run their farm without the aid of at least some of the other 7 families. So, 1 family regularly invites the other 7 families to eat their meals at their farm. 1 family regularly gives the other 7 families farming tools. 1 family regularly gives the other 7 families chickens.
You get the idea. In this way, the defects of each family are filled, and each family is able to successfully run their farm.
One of the families moves elsewhere. However, the other 7 families are still able to get by. Another family moves into the farm which the 8th family left behind. Like the other 7 families, this 8th new family is deficient in various aspects of farm life.
Without the aid of the other 7 families, the 8th family will be forced to move away. They won't be able to keep up their farm.
Are you willing to say that the government has the right to say to the other 7 families: "You MUST invite the other family to dinner, etc."?
You're wrong in theory, wrong in execution. He loves the area. He want's to live and eat there. He has the means to buy and dwell among you. Any time an injustice (and we hold this truth to be self evident, that all men are created equal...) is done, when an inequality is expressed in your discriminatory bias that has nothing to do with merit or ability, then you fail the compact and the compact may and will correct you.
He has the right to do as he pleases, and I have the same right. If he can't do as he pleases without my help, then he doesn't have the right to make me help him. It's really that simple.
