May 26th, 2017
(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at: email@example.com
Someone reasonable asked:
Should someone pay me for not having slaves and not being able to profit from exploiting them because I am a century or two late and missed the good old time when it was not yet an unacceptable practice?
And, in the year 2017, someone wrote:
If you legally acquired them, then yes. The British experience ending slavery was far more humane than the US one.
That is already surprising, but then I wrote this, and I was promptly downvoted:
You can’t own human beings, because it violates their fundamental rights. This was true back when slavery was “legal”. The Nazis could pass a law saying that the Holocaust was legal, but the rest of the world felt free to disregard that law, and put the Nazis on trial. Some laws are not legal, that is the whole entire point of the West’s 2,400 year old liberal tradition. Likewise, some claims of ownership are not legal, and not binding. You can pay good money for a slave, but you still don’t own the slave, because no law can make it legal to own another human being. And this was true for all of the thousands of years that slavery was legal: none of those laws were ever legitimate, and none of those ownership claims were ever legitimate.
You can’t own human beings, because it violates their fundamental rights. I didn’t realize this was still up for debate. But several people felt the need to downvote my comment.
deong responded to me:
It really wasn’t. We would like it to have been, but at the risk of stating the obvious, it’s not an inalienable, fundamental right if someone can take it from you without fear of repercussion. Slavery was legal — the scare quotes add nothing. The difference between legal and “legal” here is just personal ethics.
Now, we can of course decide to proceed today as though the laws were never legitimate, and offer reparations, for example. Or in the case of the Nazis, as you mention, to try them for crimes committed in the past. It’s worth noting though that the Nuremberg trials were very controversial for exactly that reason — many people sympathetic with the desire to punish the Nazis were extremely uncomfortable with the idea of trying people for violating international laws that didn’t exist at the time of the offenses (or only existed in treaties the Germans never signed). We did it anyway because, well, they deserved it, but it’s far from the truth to say that it was a routine application of some tradition in which there are some laws that are so fundamental they need not be stated anywhere. And as a matter of constitutional law, we strictly prohibit doing that in our own legal systems.
Thankfully, there were several good responses to this, including this one from clock_tower:
It sounds like you’re saying that the Nuremberg trials amounted to lynching; this isn’t true. Western jurisprudence has always recognized rights and obligations that arise from the natural law, and take precedence over any written law. This was the case even in Roman times — think of the unwritten “jus gentium” in the international context.
(China, by the way, also had the same understanding — although the state was stronger in China, and so was more often able to defy the natural law and get away with it. Look at the long history of Chinese censors, who risked torture and death to remind the emperors of their duties.)
And as for “laws that are so obvious they need not be stated anywhere,” what’s common law if not that?
And anigbrowl wrote:
Yes, it is an inalienable fundamental right. Your argument is that if it’s possible to violate a right, then it doesn’t exist, but that’s nonsense. People violate others’ rights all the time. The concept of a right is not a thing that is self-actuating, but that you can feel morally free to retaliate if your rights are violated.