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Do states have the same rights as individuals? No.

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Do states have the same rights as individuals? No.
« on: March 08, 2018, 07:33:59 PM »
 

Misty

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I was asked to write a little paper (undergrad philosophy class) on Michael Walzer's treatment of the Domestic Analogy in his book Just and Unjust Wars. Here's what I wrote:

In his book, Just and Unjust Wars, Michael Walzer tells us that, “The comparison of international to civil order is crucial to the theory of aggression” (58). He then concedes that his argument throughout Just and Unjust Wars relies on this comparison which in turn relies on what is called the ‘domestic analogy’. The appeal to analogical reasoning as a basis for legal action is weak to begin with, but the domestic analogy is further weakened in that the common characterizations it seeks to compare involve abstract concepts rather than sets of facts. Further, Walzer treats ‘the rights of political communities’ as a given offering almost no grounding for this concept. Instead, he bases their legitimacy on a weak appeal to social contract theory in which an abstract concept of ‘community’ is granted independence as a separate entity and bestowed with the rights of personhood. I argue that social contract theory fails to justify the legitimacy of the state as well as any rights the state may claim to possess, and because states cannot be justified, a society of states cannot be justified. Therefore, the domestic analogy does not hold and fails to provide justification to any theories promoting state aggression.

Walzer introduces the ‘domestic analogy’ in the following passage:

The comparison of international to civil order is crucial to the theory of aggression. I have already been making it regularly. Every reference to aggression as the international equivalent of armed robbery or murder, and every comparison of home and country or of personal liberty and political independence, relies upon what is called the domestic analogy. Our primary perceptions and judgements of aggression are the products of analogical reasoning. When the analogy is made explicit, as it often is among the lawyers, the world of states takes on the shape of a political society the character of which is entirely accessible through such notions as crime and punishment, self-defense, law enforcement, and so on (58).

It is clear that Walzer is using the concept of analogy within the context of legal reasoning here. This makes sense as relying on mere literary device to justify preventable deaths would lack the kind of normative appeal he seems to be going for; however, his understanding and use of analogy as legal reasoning seems to be misguided. The Stanford Encyclopedia of Philosophy tells us that “An analogical argument in legal reasoning is an argument that a case should be treated in a certain way because that is the way a similar case has been treated,” and also that “Analogies do not bind: they must be considered along with other reasons in order to reach a result.” So, here we see that having an analogy serve as the sole basis for an argument that appeals to legal reasoning is problematic. But, even more problematic for Walzer, is the question of what is meant by ‘similar’ in the context of this reasoning, and whether a comparison between states and individuals actually qualifies. I would argue it does not. The proper use of analogy here is contingent on a commonality of facts between two cases or doctrines and dictates these commonalities are NOT to be found in the abstract. This is explained quite well in the following passage from the entry on Analogy in Legal Reasoning found in The Stanford Encyclopedia of Philosophy:

So knives may be analogous to guns if the issue concerns weapons, but knives may also be analogous to teaspoons if the issue concerns cutlery. Duress may be analogous to provocation if the issue concerns defenses, but duress may also be analogous to incitement if the issue concerns complicity. Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue.

The domestic analogy is not a comparison between two sets of facts. It is a comparison between fiction and reality. That is, the analogy presents us with fictional entities conjured up through ideological abstraction and asks us to surrender to their apparent likeness those things we hold most valuable in the real world, specifically our individual rights to life and liberty.

Though the domestic analogy concerns itself with a society of states, its comparison is between states and individuals, and its use is premised on the notion of states having the same rights as individuals. So, then, the most important question in evaluating the domestic analogy becomes whether this central premise is true or not. Do states have the same rights as individuals? Walzer believes they do, but his argument in support of this leaves much to be desired. He begins his inquiry here saying, “Individual rights (to life and liberty) underlie the most important judgements that we make about war. How these rights are themselves founded I cannot try to explain here” (53-54). His unwillingness to offer a proper account of individual rights is disappointing, but he at least manages to say, “they are somehow entailed by our sense of what it means to be a human being,” and whether they are “natural or invented, they are a palpable feature of our moral world” (54). His appeal to our intuitive sense of individual rights is difficult to find fault with, however, his subsequent move to claiming that states’ rights are simply the collective form of individual rights is not quite as intuitive. Especially when he stipulates individuality is to be expectedly and appropriately diminished in the process. This process of collectivization, Walzer tell us, is a complex one that is best understood in terms of social contract theory.

Walzer grants that the rights of states rest on the consent of their members but is quick to add that this ‘consent’ cannot be understood in its ordinary sense. He then goes on to explain what amounts to a kind of ‘implied consent’ being generated by the sharing of experiences and cooperative activity within a community over a significant amount of time. Implied consent is a controversial concept and far from being widely accepted as a legal or social norm (despite its political use). So its use as a premise here is weak. Walzer’s subsequent appeal to ‘contract’ is not much better. “Contract,” he tells us, “is a metaphor for a process of association and mutuality, the ongoing character of which the state claims to protect against external encroachment” (54). So, by ‘consent’ he doesn’t actually mean consent, and by ‘contract’ he doesn’t actually mean contract. The state, then, is being justified by unpopular legal theory and a set of ambiguous metaphors and analogies. It fails to meet the standards of proper reasoning; but, more importantly, considering we are expected to sacrifice the immediate force of our individuality for the sake of the state, and considering the amount of death and destruction that happens on behalf of the state, the justification fails to meet the standards of our most valued principles of justice. For these reasons, and many more left unaddressed by this particular discussion, the rights of these abstract entities we call ‘states’ are as fictitious as the entities themselves, and their legitimacy as well as the devices they invoke for this legitimacy are false. The state along with its theories of aggression remain unjustified.

 

Re: Do states have the same rights as individuals? No.
« Reply #1 on: April 05, 2018, 11:59:05 AM »
 

Misty

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This time I wrote a bit on how states fails to qualify for the collective authority John Stuart Mill establishes in his essay On Liberty. Wrote this one in a rush, but managed to get the general point across (I hope).
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In his treatise, On Liberty, John Stuart Mill asserts the rights an individual has in governing his own mind, body, and pursuits are absolute and the only justification for encroachment upon these rights, whether by another individual or the collective, is to prevent harm to others. This ‘harm principle’ is a doctrine on the limits of government authority in many contemporary political discussions in which the equivalence of the collective and government is treated as a given and Mill’s conception of collective rights are assumed to hold true for state entities. I argue the collective rights Mill establishes are for freely participating natural persons of a civil society and reducible to the rights of the individuals therein. I also argue that juridical entities with legal personalities separate from that civil society (like the modern day state) fail to meet these conditions and have no legitimate authority over the individual or collective under Mill’s principle.

Mill establishes grounds for individual and collective rights through his discussion on the limits in which society may legitimately exercise control over the individual. Though Mill often uses the terms collective, society, state, and government interchangeably throughout the text, he stipulates early on that the object of his essay is to assert a principle which governs the dealings of society with the individual “in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion” (9). Here it is clear Mill intends his principle to be antecedent to socially constructed means of enforcement such as law or government. He then goes on to say, “That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (9). Mill’s phrasing here indicates his intended domain to be that of natural persons (mankind and any of their number) within a civil society (any member of a civilized community).

Mill premises his principle upon civilized society saying:

 As soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others (10).

He establishes conditions for civilized society mainly with regard to the cognitive development of its members, but also with regard to its civil structure. Though the latter is not a constituent feature of Mill’s argument, a close reading of the desideratum he presents on the ‘appropriate region of human liberty’ reveals key propositions setting parameters for the kind of social organization that legitimizes collective authority.

Mill sets out to define the sphere of liberty he deems absolute, unqualified, and requisite to his harm principle. He maintains the validity of these liberties exist within a civil society “whatever may be its form of government” (12). This sphere consists of the following three areas: the inward domain of consciousness, tastes and pursuits, and combination among individuals. It is Mill’s treatment of the liberties associated with ‘combination among individuals’ that reveals criteria for legitimate membership within a community, and also clarifies the manner in which a collective can be said to have rights and duties. Mill says:

Thirdly, from this liberty of each individual follows the liberty, within the same limits, of combination among individuals; freedom to unite for any purpose not involving harm to others: the persons combining being supposed to be of full age and not forced or deceived (12).

The rights of a collective, then, are reducible to the rights of its individual members and bound by the same terms. That the combining be free from force or deception is also stated at the top of Mill’s discussion here where he stipulates any conduct affecting others is to be carried out “only with their free, voluntary, and undeceived consent and participation.” Mill has established a structure of civilized society here that is a precondition for its legitimate governance.

Though Mill is not attempting to prescribe forms of government in his essay, he says enough to preclude certain forms from being legitimate under his conception. If the precepts of liberty have primacy over government authority within a civil society, then governments constructed in violation of those precepts cannot justify their authority on the rights and duties generated by adherence to those precepts. That is, a state claiming to have the collective rights and duties Mill establishes must then be comprised of individual citizens who are natural persons and whose citizenship is free, voluntary, and undeceived. The collective rights and duties must also be within the same limits of those belonging to each of its citizens. Such is not the case for states operating as independent legal personalities. These states fail every standard Mill establishes for legitimate collective authority.

The modern day state is a non-living artificial entity recognized by law as being an independent ‘person’. In international law sovereign states are defined as juridical entities which govern territories and have international personhood. In United States code, the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals (1 U.S. Code § 1). Here in Texas ‘person’ includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity (Sec. 311.005). States have come to be regarded as ‘moral agents’ who are treated as sentient persons with fundamental rights as a matter of state, federal, and international law. But they are neither moral nor sentient. Nor do they represent a civil community. Sovereign states represent territory and property thereby having rights not reducible to individual citizens. Membership within a sovereign state is based upon being born within that state’s territory. Considering that we as natural persons are drawn into contractual membership (before the age of consent) with legal fictions (divested of natural persons) representing themselves as the collective members of a community, it is reasonable to infer that citizenship within these states is not being generated under free, voluntary, and undeceived conditions.

Mill objects to governments which oppose the will of the people throughout his discussion. In his chapter “Of the Liberty of Thought and Discussion” he draws a distinction between governments ‘not identified with the people’ and governments ‘entirely at one with the people’ to make the point that even the best government has no more right to restrict individual thought and discussion than the worst. Mill further admonishes corrupt government toward the closing of his essay saying:

The mischief begins when, instead of calling forth the activity and powers of individuals and bodies, it substitutes its own activity for theirs; when, instead of informing, advising, and upon occasion denouncing, it makes them work in fetters, or bids them stand aside and does their work instead of them. The worth of a state, in the long run, is the worth of the individuals composing it (113).

That the interests of sovereign states have come to operate in opposition to the people within their territories is no longer a matter of theory. It is a matter of law. The sovereign state, in fact, legally substitutes its own activity and powers for those of its citizens. If Mill’s criticisms of corrupt and tyrannical government are not enough to damn the modern day state, his conditions for ‘combination among individuals’ necessarily preclude it from claiming the individual and collective rights he establishes through his harm principle.

If a legally constructed fiction, which is neither human nor comprised of humans, asserts control over a civilized people by virtue of its legally defined territory, it will need to justify its authority under a different theory.