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Lucretia and Steve gave John Yoo the day off for this special interstitial (and abbreviated) episode that we’ll just call the *Two* Whisky Happy Hour, in which Lucretia and Steve clear up some confusion from our most recent fast-paced episode, where a few main points got muddled. Several new listeners want us to clear up exactly what we mean by natural right, how natural right (especially its ancient or classical version) differs from modern natural rights (plural) as they appear in, for example, the Declaration of Independence. And also what is meant by “historicism.”
Lo and behold, as we were getting ready to record, we noted that our great pal Michael Anton posted an article that is right on point, “Natural Right and Historicism,” which we recommend to all our listeners. Here’s his useful definition:
The point here is that in all these cases, there is an external standard by which to judge, one not invented by man nor depending on his preference or whim. At the most basic, commonsense level, that’s all natural right is: the notion that we humans don’t get to choose what right or wrong are. They exist, if not independently of us—they are inextricably bound to our nature—at least independent of our will. Our role is to determine what is right or wrong in a given circumstance, based on a standard we don’t set, and then behave accordingly.
Just so. Lucretia and Steve offer their own definitions and explanations, and also clear up the confusion over Steve’s point last Saturday about the crucial role of the so-called “Social Darwinists” in undermining natural right in the decades right after the Civil War.
Turns out Steve has an unpublished paper that goes into this subject, and readers who are gluttons can click on this link and read: “How Natural Right Fell Out of Favor in American Thought.”
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Thanks for this! I appreciate Steve’s ability—likely supported by Lucretia—to come up with good podcast themes. … Any interest in explaining critical theory?
Oh, at some point we’ll definitely do a beat down on that deserving target.
Is this Steve or Lucretia removing John from the podcast?
From the previous episode of this podcast we know it’s not Richard Epstein removing John from Law Talk. Was interesting that the anger of being forced to wear a mask changed Richard’s whole talk.
Since finding 3WHH it has become one of those podcasts that fill me with joy when it appears in my phone.
They are never too long, John is a great addition, and I always learn.
This deeper dive into Natural Right was great, but I would like a bit more on the problems Luc has with E. Burke as it relates to Nat Con stuff. I get that she finds some kind of shortcoming with it, and that the better foundation is Natural Right and the Founding documents, but I yearn for more…
Exciting time for politics, realignments abound, and we got y’all to guide us through…
Many thanks
I’m a lowly history guy, and I know your understandably low opinion of the field. If you wouldn’t mind, one day succinctly explain the perspective of Leo Strauss, in addition to the Harry Jaffa corollary to Straussian philosophy (East v. West Coast?). And I think that CGU professors referred to critical theory as “whiteness” when I was there. Or perhaps “whiteness” was an offshoot, somewhat distinct from critical theory, but every bit as dumb as the original formula. Thank you!
@quickz Saw my friend John at the Federalist Society Convention and brought up my similar perplexity with this one issue where I find myself at odds with Lucretia. While the appeal of Burke to the Nat Con movement is obvious, he poses challenges to the national identity set as well, at least in terms of how or how quickly their agenda may be advanced. Lucretia’s discomfort seems centered in this very instrumental pragmatism or gradualism, as if it were necessarily disconnected from principle. This is an ironic sop to those of the sort who wish to simplistically assign his–anything but pragmatic–impeachment of Hastings to the political revenge category rather than admit it as an exercise in principle at the expense of the practical.
So John just earned the caammunity a new member by suggesting to me that he is also a bit mystified by this repeating theme in the podcast of Burke at odds with Natural Right and the way to get a better answer or discourse with the proponent of this theory was to engage in the comments.
Well, one can see that as a question of priority when the rubber hits the road but I hardly think that implies the squishiness that Lucretia finds here (even though she is correct in similar allegations across the vast range of politics, I think her instinct to sense squish is overactive in this case).
I suspect there is little doubt that Burke would have placed himself in a prolife camp; but I think it equally likely that–after 50 years of Roe–he would have encouraged the adoption of Roberts concurrence over the outright overturn. That can certainly breed a contempt for a focus on instrumental safeguards against even necessary radical changes in governance; but, in light of the elections all but complete repudiation of Lucretia’s (and my own) principles, one wonders if Burke would not have been right in that case?
Indeed, the similar question is posed regarding his pragmatism over the American Revolution, where he accorded equities to the Americans in contravention of the substantive spread of English law and influence through colonization albeit in concert with the dictates of english law. Again, his pragmatism exercised in accord with principle, not with a sacrifice of it. He recognized when the conceptions of English law cut against the status quo of English hegemony! Ultimately this decision too a mixture of pragmatism and principle, not the triumph of one over the other.
Best, Brian
But Dobbs was decided how it was decided. And we must lick our wounds and imagine that the electorate will become even more convinced in 2024 of the error of their ways. But does that require always placing principle before pragmatism? I’m not convinced.
Thomas, for instance, should not be seen as a model of principle over pragmatics at all turns–but rather as one who asks what the answer is in principle and then questions whether pragmatics suggest a more marginal path to the principle than outright declaration.
By contrast, the affirmative action precedents have been far more squirrelly than Roe and Casey. They hardly are deserving of reliance protection as some bedrock of the status quo. The ACA had nothing like the tenure in law and expectation that Roe did. So I don’t think that seeing Dobbs as having taken too radical a road to the right answer supports either O’Connor in Bollinger or Roberts in NFIB.
Of course this invites the critique of my great friend Hadley Arkes who most recently celebrated Dobbs speaking to his cotillion of James Wilson afficianados at the selfsame Federalist gathering–although his profession of the distance still to go struck me as leaving an opening to suggest we might have gotten to about the same place with Roberts. (I don’t think i’ll find my breakfast invitation withdrawn for suggesting as much. I am perhaps guilty of seeing the collapse of industrial civilization posed by the present administration as a greater threat than taking halfway measures on Roe, especially since I’m not even convinced Lochner was wrong!)
Likewise, it is wholly incompatible to view Burke’s gradualist message on political change–commonly associated with his Reflections–as frustration of Natural Rights when, in fact, it is rooted in arguments of human nature, not political theory: “by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete.”
To suggest Burke was hopelessly focused on the legitimate exercise of governance over its substantive results is hardly a fair assessemnt of he who, when beseeched to end Hastings impeachment out of duty to the status quo, said: “I have no party in this business, my dear miss Palmer, but among a set of people, who have none of your Lillies and Roses in their faces; but who are the images of the great Pattern as well as you and I. I know what I am doing; whether the white people like it or not.”
Thus is Burke whipsawed between conservatives who would both claim him as a saint of highest focus on national identity and interests but also as evidence of the corrupting influence of pragmatic centrism. I can hardly describe myself as a centrist when I hang on Lucretia’s every invocation, but here she seems to have found the exception to the general rule of our agreement.