Category Archives: Justice

The Evolution of Law in Epicurus and Nietzsche

I recently had the pleasure of reading the highly-recommended book by Nietzsche, The Antichrist. Many of its paragraphs merely served to add depth and detail to some of the things I had previously come to understand from reading his notes in Will to Power and other sources, like Zarathustra. Other paragraphs offered new insights either because of the way in which they were passionately and emphatically stated, or by virtue of their content. Paragraph 57 is one of the latter cases and caught my eye because usually, when Nietzsche discusses the origins of laws and mores, he employs a cynical tone and seeks the ulterior motives of the proponents. Here, he takes on the anthropologist’s tone that we find in Lucretius and Epicurus, and it might be interesting to compare how he views the primitive origins of moral and legal codes versus how the Epicureans viewed them.

In Nietzsche, the time when the laws are written down indicates a time when rules and contracts are standardized and experimentation is no longer encouraged as a result of certain legal precedents and practices becoming solidified in tradition. There are conservative and liberal interpretations of this process: to some–who are privileged by the existing laws–this creates a mythical “golden era” during which the population developed the best means to rule itself. To others, this imposes limits on how creative legislators allow themselves to be in adapting the legal code to new circumstances and keeping it relevant. Nietzsche, who is a staunch defendant of a type of aristocracy, supports the first interpretation, but nonetheless sympathizes with the second one.

A book of laws such as the Code of Manu has the same origin as every other good law-book: it epitomizes the experience, the sagacity and the ethical experimentation of long centuries; it brings things to a conclusion; it no longer creates. The prerequisite to a codification of this sort is recognition of the fact that the means which establish the authority of a slowly and painfully attained truth are fundamentally different from those which one would make use of to prove it.

A law-book never recites the utility, the grounds, the casuistical antecedents of a law: for if it did so it would lose the imperative tone, the “thou shall,” on which obedience is based. The problem lies exactly here.—At a certain point in the evolution of a people, the class within it of the greatest insight, which is to say, the greatest hindsight and foresight, declares that the series of experiences determining how all shall live—or can live—has come to an end. The object now is to reap as rich and as complete a harvest as possible from the days of experiment and hard experience.

So the creation of a code of laws is an act of power by which the law-givers say: these matters are no longer up for discussion. Nietzsche then explains how the ruling classes, having decided that the era of legal experimentation is over, create what Marx would have called “the superstructure”, the over-arching set of narratives that the ruling classes use to preserve their power.

In consequence, the thing that is to be avoided above everything is further experimentation—the continuation of the state in which values are fluent, and are tested, chosen and criticized ad infinitum. Against this a double wall is set up: on the one hand, revelation, which is the assumption that the reasons lying behind the laws are not of human origin, that they were not sought out and found by a slow process and after many errors, but that they are of divine ancestry, and came into being complete, perfect, without a history, as a free gift, a miracle…; and on the other hand, tradition, which is the assumption that the law has stood unchanged from time immemorial, and that it is impious and a crime against one’s forefathers to bring it into question.

The authority of the law is thus grounded on the thesis: God gave it, and the fathers lived it.—The higher motive of such procedure lies in the design to distract consciousness, step by step, from its concern with notions of right living (that is to say, those that have been proved to be right by wide and carefully considered experience), so that instinct attains to a perfect automatism—a primary necessity to every sort of mastery, to every sort of perfection in the art of life.

To draw up such a law-book as Manu’s means to lay before a people the possibility of future mastery, of attainable perfection—it permits them to aspire to the highest reaches of the art of life. To that end the thing must be made unconscious: that is the aim of every holy lie … – Nietzsche, The Antichrist

He then goes on to justify the caste system, which does not concern us for the purposes of this essay. I mainly wish to note that, against the conservative analysis we find in Nietzsche–who seeks to remind us of the original advantages that certified the ancient laws–we can posit the case for adaptability, progress and evolution of the legal code according to mutual advantage in the ancient Epicureans–who advocate for a fluid legal system that allows for perpetual processes of experimentation and adaptation.

Among the things held to be just by law, whatever is proved to be of advantage in men’s dealings has the stamp of justice, whether or not it be the same for all; but if a man makes a law and it does not prove to be mutually advantageous, then this is no longer just. And if what is mutually advantageous varies and only for a time corresponds to our concept of justice, nevertheless for that time it is just for those who do not trouble themselves about empty words, but look simply at the facts.

Where without any change in circumstances the things held to be just by law are seen not to correspond with the concept of justice in actual practice, such laws are not really just; but wherever the laws have ceased to be advantageous because of a change in circumstances, in that case the laws were for that time just when they were advantageous for the mutual dealings of the citizens, and subsequently ceased to be just when they were no longer advantageous.

Epicurus’ Principal Doctrines 37-38

Notice that, first and foremost, it is clear that men create the laws and that men have, at any point, the power to change them. Epicureans never allow for a “holy lie” to even plant its roots in the soil of philosophy. While Epicurean doctrines seem to allow for an aristocratic code (things of advantage may or may not be “the same for all”), we also find in the Epicurean sources a lack of emphasis on the priorities of the ruling class, and instead an egalitarian, anarchic, and–most importantly–pragmatic focus on mutual benefit.

In Book 5 of On the Nature of Things, Lucretius mentions how “neighbors began to form mutual alliances, wishing neither to do nor to suffer violence among themselves“, echoing again the indication that Epicureans believed contractarianism to be the earliest type of law.

Dialogue on the Extent to Which the Declaration of Independence is Consistent With Epicurean Philosophy

The following is an edited dialogue that took place on our Epicurean Friends forum.

Cassius. This is to pose a series of questions about one of the most famous passages of the American “Declaration of Independence.” As discussion develops on one or more of these in particular we can split the discussion into separate threads, but to start here is a list of questions:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What do we know about whether this paragraph was written entirely by Thomas Jefferson, or contains modifications from others?

Hiram. According to this source,

Who wrote the Declaration of Independence?

Although we know Thomas Jefferson as the true author, the Second Continental Congress initially appointed five people to draw up a declaration. The committee included Benjamin Franklin, John Adams, Roger Sherman, Robert Livingston and Thomas Jefferson. Jefferson was then given the task of writing a draft for the Declaration of Independence, which from June 11 to June 28 he worked on. Before he presented the Declaration to the Continental Congress, he showed it to John Adams and Benjamin Franklin; they made revisions. He presented the draft to Congress on July 1, 1776 and more revisions were made. On the fourth of July the delegates met in what we know today as Independence Hall, but back then was known as the Pennsylvania State House, and approved the Declaration. John Hancock, the President of the Continental Congress signed the declaration along with Charles Thomson and it was sent to John Dunlap’s print shop for printing.

So it seems like this was a process not too different from how we have co-written together the narratives for videos on YouTube and some of our dialogues. Jefferson wrote it with feedback from four other men who were, presumably, steeped in the political philosophy of the day (Locke, Rousseau, and others).

Cassius. Yes that is exactly what would need to be analyzed in order to determine how much of the final result came about through Epicurean thinking, and how much was diluted/mutated by Christian or other ideas.

I am not aware that copies of the initial draft survive, but as we proceed with this investigation, if anyone has more detail on who added what, and when, that would be great.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Would an Epicurean agree that what follows in the paragraph after the first phrase are “self-evident?” What does “self-evident” mean?

Would an Epicurean agree that “all men are created equal.” It is absolutely clear that all men are NOT created equal in every respect (health, sex, race, capabilities, preferences, etc.) It is also clear to an Epicurean that men are not “created” if that term implies a supernatural god. In what respect, if any, would an Epicurean say that “all men are created equal.”

What does it mean to say “endowed by their Creator?” Would an Epicurean use this phrasing? If so, what would an Epicurean mean by “their Creator?”

What are “inalienable rights”? What is a “right”? How is a right “inalienable”?” It seems clear that this cannot be read superficially, as much of what we think of as “rights” are certainly taken from people all the time and thus are not “inalienable.” In what way, if any, can this phrase be reconciled with Epicurean philosophy?

What does the phrase “life, liberty, and the pursuit of happiness” mean in Epicurean terms?

Hiram. I don’t think they are self-evident, or that Epicurus would agree that men were created (as there is no creator).

We know today that men evolved through natural selection, and that nature did not have an intention of creating men or any other particular species. Natural selection follows the path of least resistance, of greatest opportunity / advantage, if and when / insofar as species are able to adapt to their environment.

The document was written in the context of setting the grounds / seeds for a new country with a new law and a new constitutional framework. An Epicurean would consider these matters in terms of mutual benefit / mutual advantage. Within this context, I think “self-evident” implies that these are matters beyond reproach and that are not up for negotiation, that they constitute the minimum standard by which they were willing to found a new country and a new law, that the social contract would have to abide by these principles.

Men are not ‘created’. If we understand nature, metaphorically, as Creatrix, then we may concede this, but there is WAY too much religious baggage here to accept it in my view.

We are endowed by nature with certain instincts and faculties and tendencies, and (a very strong case can be made) with a sense of morality and justice, but not with rights, inalienable or not.

Rights are born from the laws or rules we create to facilitate co-existence. The only way in which we could say that they come from “the Creator” or “Nature” is if we ourselves are understood to be co-creators or part of nature, and you could make that case, but it’s best to speak clearly, and the original language seems to indicate a Creator in the deist sense, which is an error.

“Life, liberty, pursuit of happiness” – I want to go back to the idea of negotiating a new social contract for a new country, if I was Thomas Jefferson and if I had to negotiate the terms under which I, as an Epicurean, wanted to or was forced to co-exist with others OF RELIGIOUS CONVICTION, these ideas would definitely belong there. I would not care if others believe that these “inalienable rights” come from “the Creator” if, for the sake of mutual benefit, these rules are agreeable to me and others, even if I’d rather not word these principles as inalienable rights coming from a Creator.

In other words, this is a Charter for religious and non-religious people of various convictions and faiths to co-exist, and what pass for “inalienable rights” are acceptable to a non-religious person.

Life is safety; liberty is autarchy; and pursuit of happiness is self-explanatory and a natural extension of liberty; these are natural pleasures, and necessary to happiness and life in Epicurean terms.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Cassius. This passage is perhaps easiest to reconcile given the Principle Doctrines on “justice.” How could we elaborate on this in Epicurean terms as to the meaning of “just powers” and “consent of the governed?

Hiram. As for “just powers”, PD 37 speaks of them in terms of mutual advantage, and these powers may change and evolve and apply differently in different situations and to different people:

Among the things held to be just by law, whatever is proved to be of advantage in men’s dealings has the stamp of justice, whether or not it be the same for all; but if a man makes a law and it does not prove to be mutually advantageous, then this is no longer just. And if what is mutually advantageous varies and only for a time corresponds to our concept of justice, nevertheless for that time it is just for those who do not trouble themselves about empty words, but look simply at the facts.

Concrete examples in our own constitutional framework is how states have their rights and their form of sovereignty, versus how the federal government has its own rights and form of sovereignty and its own jurisdiction, versus how the different Indian Nations and Reservations have their own rights and forms of sovereignty, their own schools, police, etc. all according to mutual benefit.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Cassius. Again, this passage seems directly supported by the Principle Doctrines on justice. How would an Epicurean elaborate on the meaning of this passage?

Hiram. This is an application of PD 37-38:

Where without any change in circumstances the things held to be just by law are seen not to correspond with the concept of justice in actual practice, such laws are not really just; but wherever the laws have ceased to be advantageous because of a change in circumstances, in that case the laws were for that time just when they were advantageous for the mutual dealings of the citizens, and subsequently ceased to be just when they were no longer advantageous.

The Declaration only mentions “safety and happiness”, which is a good start, but in the Letter to Menoeceus we find mention among the things that are needful and natural also of health of the body and tranquility of mind, of avoiding bodily uneasiness (threats, plagues, exploitation or slavery), which seems to imply that an Epicurean system of government would also be invested in public health, including mental health:

And of the necessary desires some are necessary if we are to be happy, some if the body is to be rid of uneasiness, some if we are even to live. He who has a clear and certain understanding of these things will direct every preference and aversion toward securing health of body and tranquillity of mind, seeing that this is the sum and end of a blessed life.

Are there any other Jefferson sources that may illuminate some of these questions?

Cassius. I especially think that this observation is of huge significance, and once we understand that our entire perspective on justice changes. It’s from Thomas Jefferson’s Epistle to James Madison, sent from Paris on Sept. 6, 1789:

I set out on this ground which I suppose to be self evident, “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject.

Hiram. So the key here is that rights are not “natural”, or “nature-given”, or “God-given”. They are created by the people who form the societies. And these rights and regulations can be changed by the people who form the societies.

“Please always remember my doctrines!” – Epicurus’ last words