A Law is a Law is a Law
There seems to be no Category for Philosophy of Law. I make no complaint, however. But it helps explain why this thread appears under the vague but inclusive Category of General Philosophy.
The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
So wrote John Austin in the 19th century, by reputation the creator of legal positivism. So thinks Ciceronianus, the author of this post.
Not all of those considered legal philosophers were lawyers, alas. I don't think Aristotle, Aquinas, Hobbes, Rousseau or Mill were lawyers. The mere thought of Hegel being an attorney inspires terror. Cicero, Grotius, Bentham, Montesquieu, Austin, Holmes, Hart and Dworkin were lawyers (Monty was a judge).
I think any practicing lawyer, or judge, would accept the statement made by Austin quoted above without hesitation. Unfortunately (or so I think), there are those, even among those called legal philosophers, who don't. The "assumed standard" as you may guess, would include natural law, natural rights, and indeed morality in general, and the application of such standards is one of the things legal positivism opposes. H.L.A. Hart made legal positivism more sophisticated as a description and explanation of what law is than was proposed by Austin. Bentham was more or less a contemporary of Austin and their views were similar. O.W. Holmes, Jr. is considered to be one of the proponents of what's been called American Legal Realism, which is similar to legal positivism in its rejection of natural law theory and its value-free approach to law.
The belief that the law must conform to an "assumed standard" of some kind, and isn't the law if it does not, ignores the law; it doesn't explain it. It leads to a fundamental ignorance of the nature of the law and its operation.
What say you to that, if anything?
I say: There is no Law but the Law!
The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
So wrote John Austin in the 19th century, by reputation the creator of legal positivism. So thinks Ciceronianus, the author of this post.
Not all of those considered legal philosophers were lawyers, alas. I don't think Aristotle, Aquinas, Hobbes, Rousseau or Mill were lawyers. The mere thought of Hegel being an attorney inspires terror. Cicero, Grotius, Bentham, Montesquieu, Austin, Holmes, Hart and Dworkin were lawyers (Monty was a judge).
I think any practicing lawyer, or judge, would accept the statement made by Austin quoted above without hesitation. Unfortunately (or so I think), there are those, even among those called legal philosophers, who don't. The "assumed standard" as you may guess, would include natural law, natural rights, and indeed morality in general, and the application of such standards is one of the things legal positivism opposes. H.L.A. Hart made legal positivism more sophisticated as a description and explanation of what law is than was proposed by Austin. Bentham was more or less a contemporary of Austin and their views were similar. O.W. Holmes, Jr. is considered to be one of the proponents of what's been called American Legal Realism, which is similar to legal positivism in its rejection of natural law theory and its value-free approach to law.
The belief that the law must conform to an "assumed standard" of some kind, and isn't the law if it does not, ignores the law; it doesn't explain it. It leads to a fundamental ignorance of the nature of the law and its operation.
What say you to that, if anything?
I say: There is no Law but the Law!
Comments (301)
LOL! The mere thought of Hegel inspires terror in me. I've been beating my head against a translation for years. He put me to sleep last night.
What about something like environmental law? It is always a reflection of an "assumed standard" or set of models that gets hashed out by scientific peer review. Beyond the particular acts of regulation and remediation, the "assumed standard" is a social contract to be a steward of the environment rather than merely living as a rapacious generation with no thought of any life afterwards.
isn't that obvious?
Any correspondence between the Law and the Good is surely coincidental...
No. It is not. I guess law is literally the reinforcement of morality...
Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law. [to the Massachusetts State Senate, January 7, 1914; boldface added]
An unjust law is no law at all" ["Letter from a Birmingham Jail," 1963; Lex injusta non est lex].
How then? By which I mean that if law is the reinforcement of morality, what is the mechanism by which that connection is made?
The progressive development of natural law into judicial moralism. Thus, the purpose of searching with jurisprudence the most morality solution to the law dilemmas.
[i]No, we can neither expect nor demand respect for the law just because it has been promulgated, regardless of its content. What matters is not respect for this or that (often accidental) decision of the majority in a parliament or of a judge. Rather, what matters is respect for the moral law, which may or may not coincide with the positive law and which involves the legally irrelevant distinction between good and evil.
Leszek Ko?akowski (1927-2009), "Crime and Punishment," Is God Happy? Selected Essays [Basic Books, 2013, p.236][/i]
Lex mala, lex nulla -- A bad law is no law.
:fire:
Quoting javi2541997
:100:
The law can change, and then there is the old law and the new law. As witness our beloved leader Boris, he of the meter-long forearms deftly shaking elbows with all and sundry whist maintaining the now statutory 2 meter separation. :mask:
I wonder what is the law that exists? Is it the paper appropriately signed and sealed, or is it the published version thereof, or is it a more complex construction of social effects that include the implementation thereof. If there can be a law that forbids unequal pay between genders, but there is is a gender pay gap, there seems to be be at the least a third question as to whether the writ runs or not. To speak of law without mention of the power of enforcement seems to me to miss something essential.
Law conforms to morality inasmuch as both are aides to preserve the tribe, and they promote behaviour that the tribe uses to successfully survive. The law changes according to how the tribe's needs change. By "tribe" I mean a society, small or big: a literal tribe, of five families or so, up to the Chinese People's Republic, with 1.5 billion and still counting.
The tyrants that created laws did not make it impossible for their subjects to exist. Only made the law to secure the benefit of the tyrant from society, and to make it tight for the subjects to vie for the position of the tyrant. In democracy it has boiled down (the needs of society have boiled down) to divvy up resources in an equitable, fair way, yet which promotes industry and private ownership. The two are basically inherently antagonistic (private ownership and fair trade or social equity), and therefore laws are needed to channel the flow of events into a reasonably safe and balanced way, in which no social change is urgently needed. These are morally supported: "Doh shalt not steal" (one of the Ten Commandments, Bible), and "a man must give ten percent of his all-time earnings to chartiy" (The Holy Koran).
Very good question. In North America, the law is selectively enforced, according to the caprice of the police forces. This is completely untenable, in my opinion, but the system survives just nicely, so it can't be that bad.
My favourite law quote is "Nobody knows the law. And ignorance of the law is no excuse before the law." An entire society exits without knowing the law. It is not just the texts of law that is the law, but the application, and also the judgments based on the articles that have been created by parliament. And I propose that nobody knows the law in its entirety.
But there are shortcuts. Shortcuts to know when it is that you break the law. A rule of thumb, if you like. You know you break the law if you make too short a shortcut to benefits, be it via financial shortcuts (robbing a bank, embezzling, bne), or via personal or corporate injury (beating someone up for their lunch money; industrial spying.) Walking across someone else's lawn is most likely a shortcut for you in getting to your own house.
In order for people to take the law seriously, they must assume that the law is somehow a reflection of objective reality, objective morality, of "things as they really are". People need to take for granted that the law is more than a matter of political machinations between politicians.
In contrast, take, for example, some people's reasons for disobeying traffic laws: they believe that speed limits are just a way for bureocrats to exert power over other people.
Quoting Isaac
When people believe that might makes right.
What does "the Law" here refer to, other than an assumed standard?
Agreed, if you mean there must be the pure conception of law before there can be instances of it.
Quoting Ciceronianus the White
Disagreed. Law, by which I do not mean a law, or the law, but law in itself, does conform to a standard, it isn’t law if it doesn’t, and it explains what law is, hence is not the ignoring of it even while ignoring its instances.
Agreed, though, that there is already a fundamental ignorance of the nature of law, in the ignorance of its assumed standards, and that because the standards for law in general, without regard to that which law directs itself, are universality and absolute necessity.
So the law is whatever people happen to respect as the law, variable to the current subjective state of the people at the time and variable to a particular geographical region?
For example, it was against the law in 1965 after the passage of the Civil Rights Act of 1964 to engage in certain racially discriminatory ways, yet, as we know, we didn't exactly receive universal compliance at the moment of passage. If the local sheriff wouldn't enforce the law, the prosecutor wouldn't prosecute the law, the juries wouldn't convict under the law, the judge wouldn't sentence under the law, and the warden wouldn't incarcerate under the law, then it was not the law, correct? My point here is just to arrive at the logical conclusion of a system that expressly denies the existence of an underlying anchor for the legitimacy of the law. That is, just because it was passed democratically according to custom does not by itself make the law a law. On the other hand, with natural law, some natural or divine force is posited to justify the existence of the law, but with positivism, it seems (and explain if I have this wrong) the law is a rule laid down that gains acceptance and the nuance of what the law actually is will vary depending upon how the people at the time accept it to be.
It would seem our system, even to a committed positivist like yourself, is not so black and white because, like it or not, natural law foundations are posited as the basis for the law. That is, even should you say at the most meta level the law is best described by the positivist, we have as a society declared that certain laws shall not be enforceable if they do not meet certain standards of contemporary morality. For example, the Alabama statute and Constitutional precedent at the time allowed laws relegating African Americans to the back of the bus, but we were to learn that Rosa Parks did not violate that law, despite the fact that the facts undeniably supported a finding she did violate the law. This means, from a positivist viewpoint, that a higher morality must be considered when interpreting the law but only because society has declared that higher morality must be considered in its interpretation.
What we are left with appears then to be a distinction without a difference. You say that we do not have any rights that exist beyond what people say exist, yet the people say we have certain rights that are inalienable, endowed by our Creator. You declare that claim factually false, but if the people insist that higher values of righteousness as might be decreed from the heavens be considered when the laws are interpreted, then that will be the law as respected. My question then is what difference does it make pragmatically to assert there is no true natural law, but then to say we must respect the concept of natural law because natural law is a concept that has been enshrined by positive law?
But that's not how laws are made. Laws are drawn up by civil servants to the specification of politicians who've (usually) been mandated to do so by an electorate. My question was only where in that process does morality necessarily get infused into the law? Are you suggesting politicians are incapable of acting immorally (I'd have more sympathy with the opposite argument).
If you want, rather, to say that the law should be the reinforcement of morality, then one would have to wonder why. What an odd instrument to think to use, the same thing we use to set import duty...
Why must correspondence between the good and the law be coincidental and not intentional?
If your local government legalized rape, wouldn't your objection to the law have something to do with the immorality of it, and don't you think your local politicians would be motivated to change the law based upon an appeal to their sense of right and wrong? If they do illegalize rape out of respect for its immorality, wouldn't that be an instance of a law having something to do with morality?
The more accurate statement then would be that the law does not necessarily correlate to morality, but sometimes it does, and sometimes it intentionally does.
We have to spread duties through laws because sadly human behaviour tend to be immoral. Here the problem, I guess, doesn't come from laws neither courts or jurists but ambitious politicians.
This is why I guess that we need to put necessarily moralism inner laws to reinforce the development of ethical/moral issues. But, the big problem here is that most of the cases governments need to directly buy it because they are afraid of how the law can go against them.
For example: If I steal your property is clearly an immoral act, even is not needed a law to say so. But, a backwards ignorant disturbed citizen like me does so. Then, this is why law is there to reinforce moral actions and protect the good citizens at courts.
Then, laws are a good mechanism the problem is the people or politicians.
Keep in mind, though, that legal positivism/realism distinguish the law and justice. As Holmes once said to a lawyer appearing before him: "This is a court of law, young man, not justice."
It may astound you to learn that in the decades I've practiced, I've been involved in several matters where environmental laws were at issue, and not once has anyone referred to a "social contract." Instead, what's normally of significance are the nature and limits of the police power of the state to protect the health, welfare and safety of its citizens and its conflict with property rights (I mean here in our Great Republic). But a positivist would say that a law a law isn't its consistency with a fictional social contract.
It is to learned, intelligent, wise and reasonable people, yes. But there are distressingly few of us.
Well the consistency does require a relationship to scientific peer review. I didn't mean to say that any given law had a direct relationship to a social contract. It is just that nobody would care to legislate without it.
I'm reminded of an old SNL skit regarding Justice Kennedy, after it became known that he had smoked marijuana. In the skit, he was smoking weed with some of his law students. One asked the then professor (I paraphrase): "So you mean Madison didn't really write the Constitution, he just sort of discovered it!" To which Kennedy, exhaling, replied "Right, right."
I think we have to ask ourselves just what an "undiscovered law" could be. I have no idea.
Well, it's typically been said legal positivism is a restatement of utilitarianism in legal terms,. However true that is, it's the same in that it doesn't attempt to what 'right or wrong; is, it just makes statements about enforcing it.
In the USA legal positivism has kind of wallowed along with the supreme court trying to use the will of the founding fathers as guidance in new situations, but as the world becomes increasingly unlike it was in the 18th century, there are limits to how much they can say on that, and they end up falling back on truth by convention and Rousseau's social contract to stop revolution. In a few cases it has human rights conventions from the UN but those haven't been doing very well.
Different countries have different laws, and the USA has changed its mind about two major issues, slavery and alcohol. So I dont think there is anything special or honorific about law itself. Its more 'a law is a law' than 'The Law is the Law.'
Notice the distinction being made the (positive) law and "the moral law." The moral law involves the "illegally irrelevant" distinction between good and evil. Just what a positivist would maintain.
These are judgments about the propriety of a law, made for rhetorical purposes. To say that a bad law is not a law is merely to say it shouldn't be a law, not that it isn't one. It remains a law, and enforceable by the state if violated.
The law can and often should change. Once it is the law, though, it is the law regardless of its wisdom or morality.Quoting unenlightened
I agree.
If by an "assumed standard" you mean something that is adopted by a state or sovereign to regulate conduct, is codified, is enforceable by the state or others through an established system of processing and adjudicating violations or claims and making judgments, then I suppose an "assumed standard" may include laws. But I doubt that is what Austin intended by it.
Sorry, but I don't know what you mean by "the law", if you don't mean "a law, or the law, but law in itself."
I can believe the law must conform to an "assumed standard" of some kind, and isn't the law if it does not, while still not ignoring it. A refusal to submit to jurisdiction does not equal an ignorance of the pretense to it by some sovereign.
Quoting Ciceronianus the White
The burden would not be upon them to explain that which they don't recognize. And the sovereign, of course, does not always feel compelled to explain itself or entertain any arguments against it.
Quoting Ciceronianus the White
Those who deny the law are not ignorant of it's nature or it's operation. They usually know it's nature and it's operation better than the sovereign that brings it down upon them.
I think these concepts are ambiguous but not irrelevant. It is like a metaphor of what is supposed to be good or bad acts. How to act like a formidable citizen.
Sometimes is difficult to encourage these situations. I guess in private law (civil) is easier because nobody can make an agreement which is against the law, moral and public order (Art. 1255 Código Civil. https://www.boe.es/buscar/act.php?id=BOE-A-1889-4763)
Of course it was the law. it was a law that the sheriff, the prosecutor, the juries and the judge believed shouldn't be the law, based on an "assumed standard." These are the dangers we face when we believe the law must conform to an assumed standard.
Quoting Hanover
I'm going to be lazy, and will quote from the Stanford Encyclopedia of Philosophy, because I think it does a good job of summarizing a complex point of view:
The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.
I think this is fairly clear. Legal positivism/realism states that whether the law or a law is just or moral or unwise has nothing to do with whether they exist.
Wouldn't that just be self-fulfilling anyway. If some group were not able to enforce some proscription on behaviour then by definition they wouldn't be the 'mighty' in that case. This is true regardless of what the current law happens to say, so can't itself be a mechanism whereby law is tied to morality.
Quoting javi2541997
Maybe. But if we also need to put paint in tins so as to stop it spilling all over the floor, paint does not thereby become tins, nor synonymous with tins, reliant on tins, made of tins nor any other necessary connection with tins. Plus once it's on your wall you can throw the tin away.
Tins likewise, are unaffected by their sometime use carrying paint. they are not no longer tins when the paint is used up, nor are they no longer tins if used for something else.
I agree. Laws mostly protect the interests of the state, the preservation of the established order, and the power of the ruling class rather than conform to any standard of “natural law” or morality.
If necessary conformity between the law and some natural right is required for a law to be a law, that seems easily violated by differences in laws over legal systems. If it's only legal in one country to drink when aged over 18, and legal in another to drink only when aged over 19, whether an 18 year old can legally drink depends upon the country. Thus if the first reflects natural rights, the second must not, if the second reflects natural rights, the first must not, alternatively neither reflects natural rights, and thus there's a law which does not conform to them.
But necessary conformity seems a very strong requirement; for manifestly what people consider legal they often consider moral, and manifestly what people consider moral they think ought to be legal. The boundary between what generates legal systems and what generates moral evaluations seems much less clear.
For one who believed the law were a matter of convention irrelevant of morality, it seems they would have a challenge to explain (or argue against) the general concordance of, say, the "Thou shalt nots" with laws over legal systems.
Say, for example, that laws were largely devices for those in power to manage their estates (I'm not saying that's all they are, just using it as an example), then many of them would be about maintaining peace. If morality were about how we can live most effectively together then many morals would also be about maintaining peace.
What I'm getting at is if the two systems have some crossover in their strategies then we'd not be surprised to see some crossover in methods, even if they remain two separate systems.
Is a coincidence of methods the same thing as a coincidence of objective?
Yes, analogous to convergent evolution in biology.
If judges decree which laws are to be enforced based upon the justice, wisdom, efficiency, or prudence of the law and those pronouncements are recognized by law as authoritative, then are we within a positivist or natural law system?
I would like to note that I am heavily influenced by the thought of John Duns Scotus, a medieval Franciscan philosopher and theologian. So, I take his understanding of natural law to heart here. He has a strict sense in which natural law can be applicable. Scotus, basically, states that a natural law must be a necessary law (perhaps necessary in the logical sense, where it would be true in every universe). As you can imagine, very little can be considered natural law by this definition. It would be dependent upon something which is present in every possible universe. And for Scotus, that would be God, the highest good and only necessary being.
Natural law in the strict sense then boils down to: love God and love neighbor. Everything else must be derived from this. The first half of the statement is necessary because we love what is good, our wills are ordered toward the good, and God as the highest good is that which we ought to love most. The second half of the statement boils down to a divine command theory.
Interestingly, Scotus notes that loving ones neighbor can be done with the same love that we love God. The reason being is that, in loving our neighbor, we really ought to will that they also love God, the highest good, and so the love of neighbor is a quasi-reflex love of God.
The reason I write all of this is because natural law in this sense is fairly simple. Everything else will either be divine command or our human law which we, hopefully, enact with an eye toward our natural law.
So, for Christians at least, the question goes all the way back to whether a law in some way can be said to honor love of God and love of neighbor.
:ok:
Law is not synonym with Good.
Indeed we favor those laws which protect our - individual - moral principles; This same principles govern how the individual behaves and how its own consequence behaves - that which is Society -.
Your - Ciceronianus's - perception of "Law" as being something which is found in an "Absolute Truth" is erroneous, because "Law" is not something intrinsically real, but instead, artificially created.
I know it's coincidental, but it's interesting to simpletons like me that Scotus is spelled the same as the acronym of for the Supreme Court of the United States. SCOTUS. HA!
Anyway, there are those that believe our Constitution here (U.S.) is a document which does not create rights, but which merely acknowledges pre-existing (natural) rights, and then sets out government's relation to those rights (defending, extending, infringing, etc.). Then John Marshall, first Chief Justice said something like "It is emphatically the province of this court to say what the law is." Marbury v Madison. Some argue that he pulled that out of his ass, but it's the law now because, well, he said so.
Legal positivism isn't a kind of legal system. Legal systems aren't positivist or not positivist. I suppose it's at least possible for a legal system to be made up of just, wise, efficient and prudent laws, in which case depending on what natural law is supposed to be it may conform with it. Legal systems don't have to conform with it.
I don't think so. Laws may be adopted for various reasons, good or bad, moral or immoral. The reasons why they were adopted has nothing to do with their status as laws, however.
I think you must be referring to some other Ciceronianus, unknown to me.
But a law may be good or it may be bad. That is, a law's being enacted does not make the acts it circumscribes morally right.
Morality is a separate consideration from legality.
Your example demonstrates my point. Sometimes the law intentionally supports what is good. Sometimes it does not.
There seems to be only you and I.
And I'm not to sure about you...
I could be wrong, but the whole notion that “the law is the law” seems akin to the logical principle of A = A. It seems to be expecting some kind of acknowledgement to which it is not entitled. Punishment, like anecdote, or “self-evidence” or “because I said so” does not constitute a proof in logical argument, the burden of which lies on Caesar. Caesar does not appear inclined to explain himself.
So, in conclusion, just because the law exists for those who think it does, does not mean it exists for those who don’t think it exists. It’s like the question of jurisdiction: If you even open your mouth in court to say anything other than to deny jurisdiction, then the “law” will deem you to have submitted to it. However, that’s the law talking to itself; something the law loves to do.
We can discern and discover that we speak of the same person by the indirect evidence of his - aka, your - belief in a "substantive intrinsically law".
I think morality should be left to politics, while for the sake of the functioning of legal systems, maintain a distinction between morality and law. It's not for the courts to do good, per se. It's for the courts to do right - by legal process, where the good is defined democratically - by government responsible to the people in making laws that promote the good. Then, if any particular law fails to promote the good, the government can change it - or the people can change the government that made it. But what do you do if you've made morality and law synonymous, and for whatever reason, you've crafted a bad law? Live with it?
Okay, I'll bite - but you may not like it.
Seems to me, upon perusal - you've attacked every form of government, except Islam, while taking a sideswipe at China. Insofar as philosophy literally translates as "love of wisdom" - perhaps you didn't get a reply because this is a philosophy forum and what you said is not wise.
With regard to the passage below; I'd like to know to what degree my ideas have influenced your "thinking" if at all - or if use of the word "tribe" is convergent evolution.
Quoting god must be atheist
The first part of what you say here is not that stupid. It's an arguable implication of many of the concepts I discuss, but it's then set in the context of these crazy remarks - and I'd like to know if you're trying to damage me.
I find this to be an interesting statement. How could a law intentionally correlate to morality? Let's say that different lawmakers make laws for different reasons, morality might be one. Suppose a lawmaker proposes a law which is apprehended by that lawmaker as correlating to morality. Doesn't that law have to be passed by all the other lawmakers involved, before it becomes a law? Each of those lawmakers has one's own intentions. So, by the time the law is passed, the one who proposed the law had the intent of morality, but all the others had some other intentions, and unless those other intentions were morality, then we shouldn't say that the law intentionally correlates with morality.
Quoting Hanover
Oh, this is a nice one. You appeal to your "local government". What happens when the local government is not consistent with the regional government? Who has the real authority?
Quoting Ciceronianus the White
Well if not that, which seems the obvious meaning of "assumed standard", what else could Austin possibly mean by "assumed standard"? Is Austin talking about some sort of "assumed standard" which has not actually been assumed? Wouldn't that be contradictory?
That's what I had in mind, yes. Like if one person wanted two antagonists to stop fighting so they don't wake their sleeping baby and another just 'can't stand to see people upset', they'd both stage an intervention to mediate or prevent the fight in some way.
In law the legal drinking age might be a good example. Morally we might encourage teenagers to reign in their drinking a bit out of a moral concern that one should not deliberately put oneself in a position of limited self-control. The law might also restrict their drinking but in their case to limit public disturbance and property damage.
Since a peaceful co-existence is most of the time the best overall strategy to meet both moral and political objectives, there's going to be a lot of overlaps like these.
Ouch.
You know how to shut a person up: just pile on a whole bunch of totally unrelated negative charges, state conclusions that are damaging but have nothing to do with the subject material, and claim I based some of my ideas on yours.
You are full of hatred, that's the only insight I garnered from your response. You made no sensible point, and you spewed a bunch of hate-inciting opinions on me, that have nothing to do with anything.
Thank you very much for your response, your intention to hurt and your insanely irrelevant opinions showed to me in no uncertain terms that you are beneath worthy of ever reading your posts.
Hypothetically, there could be a unanimous opinion as to the purpose of a law and that purpose could be to advance a certain morality. In any event, though, since we're speaking in the abstract as to whether there could be a law passed purely for moral purposes, there's no reason therefore to limit it to democratically passed laws. It might be a judge decreeing an interpretation of a law in a manner that comports to morality, and that would require a single person.
This does not resolve the issue, because now we have the question of what makes one person's judgement that such an interpretation is the correct one, and that the judge's claim to morality is a true one.
The issue now being that intent to morality doesn't necessarily produce morality, because mistakes occur. This is why I find it difficult to understand how we can even talk about laws correlating with morality. If sometimes they do, and sometimes they do not, how could we ever know whether they do or don't? And if we cannot, there's no point to discussing it.
I mean that it is people's belief (the fact that people believe) that might makes right that is the mechanism that ties the law to morality, or, rather, morality to law. "Such is the law, therefore, such is moral." (I'm actually paraphrasing a conversation I had with a police officer last summer.)
This fits the 2nd level / stage 4 in Kohlberg's theory of moral development.
Some problems in addressing issues of morality are certainly due to the fact that not the entire population is (or can be) at the same level of moral reasoning.
So that's obvious. We can all list off countless examples of immoral laws that have existed throughout our checkered history. I'm wondering then what this debate is about.
As I see it, it's just this:
There are laws that are passed by legislatures and the like through some accepted procedure and they are called "laws." Those law come under review by some entity, perhaps a court or perhaps by the people themselves, and they declare those laws unjust and either strike them down or just refuse to comply with them.
When an entity declares that law unjust, he admits obviously it is a "law" just by virtue of its existence on the books, but that entity might be saying something further reaching, which is that the legislatively passed law is defeated and preempted by a higher law. That higher law is a reference to a natural law, a principle that cannot be defeated by an act of Congress. So, if rape is legalized, such is the "law" no doubt, just as it's the law if minorities are granted inferior status. That we define "law" in the natural law context as what ought to be and that we define law in the positive law context as what actually is written, seems an equivocation of terms more than a meaningful debate.
The question I'd think of substantive interest is whether one believes there are guiding principles that ought be considered during the law making process in order to create a just society and what they are. If we agree there are such principles and as to what they are, it would seem we could further agree to use them to remove laws that violate those principles.
Those principles I refer to, which you likely agree exist, I call rights. If the word "rights" makes you uncomfortable, use a different term. But when I say a law is unjust based upon some very fundamental violation of right and wrong (as in minority discrimination and the like), I am saying that law is preempted by a higher law and it cannot stand. I do see what I'm describing is exactly what exists in the US.
Where do we disagree here?
Yes, and this is a considerable part of the problem. Once a law is passed, it's like boarding a plane: one is stuck with it / on it for a duration of time, with no safe or easy exit.
How does one endure that time, how does one make sense of it?
Drawing attention to your own post, everyone politely ignored - you now take exception to an honest opinion? This - is channelling my philosophy:
Quoting god must be atheist
I discuss our tribal ancestry - and survival. That's my bag. Of course, I don't own these ideas - but I do know when someone is shitting on my porch.
My first clue was that, not two minuets after I posted my serious, considered remarks - your attention begging post immediately knocked mine off the front page, and then - there's my ideas, set in the context of attacks on America, China, the ruling class - and bigging up Islam.
I'm not full of hatred. But I am upset, and I'm calling you out. If you've got something to say about me, say it to me.
I'm curious about this. I think it fair to say I've read quite a few (appellate) decisions by "entities" of the sort you mention. But, I've never read one in which it's been held that an existing law is preempted by a higher law, unless you mean by this an existing, governing law, as when statutes or ordinances are found to be unconstitutional. I doubt you mean that, though. So, I assume you refer to a situation where a court has held that a particular law doesn't pass muster with God, or violates natural law, or something along those lines. A citation would be great.
Quoting Hanover
Well, I do think it's inappropriate to speak of rights which aren't legal rights, as I think very little is being said in that case beyond "X should be a legal right", something I find unhelpful. More to the point, though, see what I say in this post above.
Of course a law may be bad, unwise or unjust. However, I don't think they are because of a "higher law."
I would hope I would never make such an awkward statement. Where did I do so? If you mean I think that there are laws, that's quite true. I deal with statutes, ordinances, regulations, most every day. Perhaps you think there are no such things, in which case you might explain why you don't.
That position seems to be to a "higher law" what the law would be to one who does not believe the "law is law." Thus, if a champion of "law is law" ever really cares to know how one who does not believe "law is law" can justify his position, then he, the champion, need only look at how he perceives "higher law." Very little is being said by a champion of "law is law" who discounts that which has not subordinated itself to mere law. Higher law, by definition, does not need to be reduced to writing. To do so would be to stipulate to jurisdiction of mere law. Whereas higher law is higher law, whether mere law stipulates to higher law's jurisdiction or not. Simply saying "law is law" is unhelpful.
I can't say I understand. If I say the law consists of statutes, regulations, adopted by and imposed by a sovereign and enforced through a recognized mechanism, that's obviously what I consider to be the law--and nothing else. If someone says there's something invisible that's actually the true law or something along those lines, or there's something invisible which should be visible and part of what I call the law, but isn't, we obviously disagree on what the law is, but I don't think I must explain why the invisible isn't the law.
Quoting Hanover
The Euthyphro Problem, but with "higher law" in the place of god. Appealing to a higher law never achieves legitimacy.
Morality is a separate consideration from legality.
What can I say? If you believe that something exists only when someone thinks it exists, you're welcome to think so.
I'm just struggling to figure out the point you are trying to make, if you are even trying to make one. It seems that when I boil your posts down to the nut, all you are saying is the law exists. Okay, so what? It seems we are in agreement. You just said that you think I'm saying "something exists only when someone thinks it exists." Isn't that what you are saying? There are those who think Natural Law exists, so by the foregoing reasoning, it exists. I confessed early that I wasn't getting the issue. If there is one, pray tell. Maybe dumb it down for me.
That was my point about writing. In your view, the law must be reduced to writing to be the law? I don't pretend to be a Constitutional Law expert, but it was my understanding the founding fathers merely reduced to writing (as a way of guiding government, often limiting it) that which they believed already existed. In that regard, the law is merely for those who can't take a hint.
I guess if you think something exists only when it's reduced to writing, you are welcome to think so. If my son draws an X in the dirt and says "There's my authority to hit you with the stick." I'm going to say he has no such authority. But he's going to point to the X and say "How can you deny it? It's right there?" I'm going to say the X is there, but it doesn't give him authority. He then hits me with the stick and says "See?" I'm going to say his hitting me with the stick did not spring from the X. It was him acting independent of the X. So we are back to what you said: "If you believe that something exists only when someone thinks it exists, you're welcome to think so." He thinks it's the X but it's not. It's something invisible in his head. Something I deny. I deny the X, while admitting he hit me with a stick. He can try to use the X as justification all day long, and as a warning to me (notice and opportunity to be heard), but that changes nothing. It's all in his head.
HA!
That is one of the issues that @Ciceronianus the White would have us address: ought we do what the law - the "X" - says?
So he draws Xs' and the State writes laws. Is the State excessively reliant on authority? Would simple respect for others prevent the State from punishing people?
Quoting Banno
The most I've gleaned is something like "the law is the law", not "should we obey it." Perhaps I missed that. It's a totally different question. Socrates would say yes, as would many a Greek of his day. I would not obey the law because it's the law. F that. I would only do what the law says out of fear of the State punishing me if I did not. Or, upon reflection, if I found myself in agreement with the justification for the law, then I would act accordingly (i.e. "simply respect for others" as you put it). But not because "the law is the law."
:rofl:
The best definition of "state" that I know of is "those who have a monopoly on coercion". Yes, the state is reliant on authority. Excessive? Depends on which state.
There'd be an interesting conversation to be heard when Socrates met Gandhi. They would agree that one has an obligation to suffer the laws of one's state. Whereas Socrates obeyed the State even to death, Gandhi claimed a moral responsibility to refuse to follow unjust laws, but to accept the consequences as set out by the state.
I do not think that they would find themselves in disagreement.
Where a state is reliant on authority, must it reduce it to writing (an X in the dirt) or is coercion and use of force enough? I understand a state might want to justify itself, or give "fair" notice to individuals, but that seems to me to be the state talking to itself. Though, apparently I was off on the wrong track when picking that nit. If it's all about the "should we obey" question, I think I'd roll with Gandhi over Socrates, and then Thomas Jefferson over Gahdhi.
Oh, the Rule ofLaw is doubtless a good thing; at least you know what to expect. Mostly.
Jefferson, the Founding Fathers... to whom patriarchal obsequience is owed. Hrmph.
Again, I think Gandhi and Socrates would agree; The Apology shows that Socrates thought the state owed him free meals for life, but accepted that the state thought it owed him death. Gandhi thought one was obligated to disobey immoral laws, but also to accept the consequences as laid down by the state...
HA! I know those boys were fallible. I just like the idea of telling the King where he can stick his immoral laws.
Hey, respect for the Greek dude who married the German woman who nominally rules the Land of Hope and Glory...
Even if he wasn't a king.
I didn't know all that about him. Cool. I'll let him have Canada.
Whose morality?
Law and morality may agree that murder is a bad thing. Most people agree.
Law and morality do not agree that the the state may take private property for public purposes, even with fair compensation. Most people are OK with that (unless it is their ancestral home) but some people consider the claims of the state as theft, due process or not.
The law (in many states) provides for "employment at will" meaning that employment is a voluntary arrangement. You can decide to continue to work at XYZ Company or you can leave. That's fine. Perfectly moral arrangement. What happens when XYZ Company decides to voluntarily separate itself from everyone who voted to unionize the company? Is that moral? I think not, but Jeff Bezos might disagree. [Corporations usually resist unionization. Amazon is the current target of a union drive.]
A given moral principle may not be universal. What the ruling class (people like Jeff Bezos) and working class people (like 90% of the population) think is moral may be very far apart. So, it can be difficult to square the law (which we either have to accept or revolt) and morality.
Prudhomme said that "Property is theft." The law and morality do not agree about that.
Before responding, I ask the relevance of your question.
Assuming there are such instances, would you reconsider anything you've said in this thread? If not, why the question?
Regardless, the answer to your question is that unless you limit your inquiry to contemporary Anglo legal systems, there are countless examples. I'm sure I could find some such citations if I go back far enough in ancient English caselaw and absolutely certain I could provide you the citations you need from Islamic and ancient Jewish theocracies. The entire Talmud is a good source for the citations you are looking for.
I'd also point out that direct reference to our heavenly father isn't required for a court to be reliant upon natural law. In the US, a nation that is explicitly not a theocracy, dependence upon accepted universal truths remains an integral part of our legal system, perhaps owing itself to the argument submitted in the Declaration that all man made laws are subservient to the inalienable ones endowed by our creator and a legal system violating those rights is an illegitimate form of government. Do you contend that the various rights constantly being found in our Constitution were so well hidden the past centuries or do you believe these may just be judges endorsing what they believe is the Good as now revealed to them due to our evolving sense of morality?
At any rate, I don't know whether your positivist position is (1) metaphysical - simply stating there are no godly laws and the concept of morality is a manmade notion, (2) ethical - a just system doesn't rely upon vague notions of fairness in the administration of society but passes clear rules to be followed, or (3) descriptive - stating that of the legal systems worth studying, they tend to be rule reliant and not principle reliant.
If #1, I follow your logic, but I'm not sure that's all you mean to say, especially in light of the question you asked that I've cited in this post.
I wonder why they wrote the Constitution if they thought it already existed. Why didn't they just rely on Natural Law to assure, for example, the right to a speedy trial by an impartial jury? Or to assure the freedom of speech would not be abridged? Or that people would not be subject to unreasonable search and seizure? People would just follow Natural Law, wouldn't they?
People don't always follow the law, written or not. The law is for those who can't take a hint, and it often does not work on them, either. But at least the law can say "I told him so!" as it comes down upon him. And the law can also turn and say to third parties "See how just I am? Follow me." And the law can say to itself "I'm so cool!"
Quoting Ciceronianus the White
Because George III would not take a hint. I suspect George III didn't think much of it once it was reduced to writing, and maybe even less so. I have no evidence for this, but he might grudgingly accept that a man has a right to defend himself, but he'd be ill inclined to agree simply because the man wrote it down. Especially if that man were a serf.
Well, when you say you see your claims regarding the application of this higher law reflected in the American legal system, you might expect those claims will be addressed--by me at least. If, like me, you haven't run across an instance of a court striking down a law or regulation because God wills it or because it's contrary to Natural Law, but instead based on other, positive, law, you may not think that the case.
I take it that my quotation from the Stanford Encyclopedia of Philosophy was of no help.
Legal positivism was, and I suppose still is, in part at least the acknowledgement that the laws adopted and enforced by human societies and governments exist regardless of whether they comport with Natural Law, or the Will of God, or conceptions of what is or is not moral. We may not like them when they don't, we may even violate them, but they exist nonetheless and are laws. As Austin thought, this seems a fairly obvious insight.
So when we study the law, or analyze what it is and what it does, we don't go around saying such things as--well, such and such statute isn't a law because it doesn't reflect God's Will or Natural Law. The intelligent study of existing laws and legal systems requires that we treat the law as it exists. What we think the law should be is a different consideration. When I appear before a court, I don't argue that the pertinent statute, regulation or precedent should not be followed because it doesn't apply since it's contrary to a "higher law."
It's certainly true that some people won't take a hint.
Let's try this. I don't know where you live. Is there a government there (or governments, as we in our Glorious Republic have federal, state and local governments)? Has that government adopted rules, regulations, which are intended to apply to the conduct of its citizens? Are they written, or printed? Is there a mechanism by which they are enforced? Are there tribunals which address and decide disputes regarding their application?
If so, do you believe those rules, regulations etc. are Natural Law? Are those who enforce them enforcing Natural Law? Are those tribunals who decide their application tribunals of Natural Law? If you think they aren't, then it's likely because you think there is some difference between those rules and regulations and decisions and Natural Law. If you don't think there is a difference, then I think we can leave it at that.
I confess I did not read this article past the first page or two, but it might be worth reading. Especially as it addresses those cases where U.S. Courts deal with Natural Law. Beyond the statute, of course, is common law, cases of first impression, and conflict between law and natural law. https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4060&context=ndlr
I honestly don't know if and when any court relied upon or distinguished or even addressed natural law but the cite you are looking for may be therein.
But I can reiterate that saying "the law is the law" seems tautological, "self-evident" to those who believe it, and irrelevant to those who don't see "the law is the law." To the latter, it is akin to a little kid talking about unicorns they saw in a book. Yeah, they exist. Okay.
Yes, yes, yes, yes and yes.
Quoting Ciceronianus the White
The just ones are Natural Law reduced to writing; the unjust ones are an abuse of discretion and not Natural Law. Those who enforce them, enforce them regardless of who thinks they are what. The tribunals decide regardless (sometimes checked by nullification). So here we have a nut: Natural Law is just. Man's law can be just, but is not always so. Both are arguable, but the latter will not always entertain arguments about the former. To that extent, they are unjust. If the are unjust, they are the law in the same way that my son's stick is a stick.
Quoting Ciceronianus the White
Except this isn't what I limited it to in my post, and you ignored my comments where I did point to the influence of natural law in the American system.
Again, what relevance is this objection you've posited? If the US did in fact strike down laws explicitly on the basis of it violating natural law, what relevance would that have to anything you've said?
To follow up on this, I give you https://en.m.wikipedia.org/wiki/Earl_of_Oxford%27s_case
In holding that when there is a conflict in common law and in equity, equity shall prevail:
"The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what Nature soever they be, and to soften and mollify the Extremity of the Law, which is called summum jus.
And for the judgment, &c., law and equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right; as Justice and Mercy differ in their effects and operations, yet both join in the manifestation of God's glory."
This was from 1615. When such reasoning fell into disfavor I don't know, but such is the foundation of our law.
"violates our traditional notions of fair play and substantial justice."
I think I liked it for the sentiment expressed, but I think it stuck with me because of just how contrary it was to my experience with the law as written, interpreted and applied.
I really wish that my father, or some other authority figure would have taken me out back for a little counseling about the distinction between ideas/aspirations and reality. The old saw by Darrow, there is no justice, in or out of court. And sometimes you eat the bear and sometimes the bear eats you. Those lessons would have saved me a lot of heart burn and frustration tilting at windmills. Not to mention saving a lot of clients a lot of money. But, having grown up on 1950s, 60s and 70s T.V. Westerns, which were all about the underdog and the good guy winning in the end, I went into the world pretty ignorant.
And it took a long while for the lessons to sink in. I'm a slow learner. Better late than never.
Once before I trial I was standing outside the court room with opposing counsel (he'd been around the horn). He sensed my chagrin and said: "Jim, the business of law is business." I responded "The business of law is minding other people's business." I won that case, but I started making my exit plans immediately thereafter. Opposing counsel is doing quite well in business. Me, I sleep better at night and give myself the counsel I should have given others: Avoid the law whenever possible, even if that means obeying it. Let Natural Law govern your conduct and the pretender will leave you alone.
As the Boss said in Cool Hand Luke: "What we have here is failure to communicate."
I may be responsible for that, so I'll try to remedy it.
I'm not sure just what Natural Law is, myself. If it exists, however, I think laws adopted by human governments are not the same as Natural Law. They exist apart from it, and regardless of it.
That's not to say that beliefs regarding what Natural Law is and says do not play a part in the adoption of certain of our laws, or that they do not influence, sometimes, the interpretation and enforcement of our laws. We may say the same of beliefs about what God wants of us, which may be the same thing as Natural Law, or other views regarding what is or is not moral. Such beliefs also may lead us to claim that certain laws are bad laws.
Legal positivism/realism doesn't maintain that every law is good. It merely maintains that every law is a law. It doesn't cease to exist if it's bad.
But our laws, once adopted, are not a part of Natural Law or the will of God. They become part of a vast system of rules and regulations meant to apply to all kinds of human conduct and interaction, most of which, I know from having to look up and research the damn things all the time, have little or nothing to do with God or Natural Law. The fact that most laws have nothing to do with what's right or wrong in a moral sense itself makes the claim that law is Natural Law or are divine commandments seem foolish, to me. As does the fact that laws which are adopted because they are thought to be good or moral are often more destructive in their practical application. The classic example here is Prohibition--a constitutional amendment, sad to say.
So, when people say that Natural Law is the real or true law, and that the laws we humans adopt aren't really laws unless they conform to Natural Law, I maintain they confuse Natural Law, the contents of which may in any case vary over time and place and are not acknowledged as effective, binding and enforceable in a legal system, with what actually is the law we adopt. Likewise when they claim that we have rights by nature or by the Will of God which have not been recognized as part of a functioning legal system and therefore cannot be enforced if they violate and conflict with other rules adopted in that system, they confuse what they think should be the law with the law is at the time.
What the law is is not what we think it should be, or we think Nature or God requires it to be. If we think a law is bad, we think it should be changed or revoked, not that it doesn't exist.
That's all, folks.
There are laws of nature and then there are man-made laws. I think it can be argued many human laws are just stupid ideas and not really laws. Democracy is about getting rid of stupid ideas and having rule by reason. That is laws must be proven good reasoning and do not stand if they are just stupid ideas. Such as outlawing interracial marriages or homosexual relationships is just stupid and has nothing to do with laws of nature. Whereas laws about actions to prevent the spread of disease are based on the laws of nature and to reject them is being stupid.
Some passages from Wiki on natural law:
How do you think a Stoic would reply to this?
So the issue at hand seems to be the legitimacy/authority of the laws adopted by people?
I'm something of a fan of the Stoics.
I think their views were influential in the development of Natural Law. I think their ethical views were premised on their acceptance of a divinity immanent in nature, which they identified with Reason, which infused and governed the universe. They thought that we partake of that divinity as we have the capacity to reason. We live "according to nature" as they said when we act in accordance with Reason, which results in a virtuous life.
But I don't think they confused or conflated the Divine Reason and its precepts with human-made law, nor do I believe they thought in terms of natural rights with which all are endowed. Those were later developments. Stoicism provides that we should act in certain ways towards each other and the rest of the world. It holds that we should act reasonably and virtuously, but it doesn't provide that we should do so towards others because they have certain "natural rights." We should do so because that is the proper way for us to live. For example, we shouldn't covet or steal what belongs to others because they have a "right" to their property, natural or otherwise, but because for a Stoic such things are indifferent and we disturb ourselves needlessly in pursuing or acquiring them which prevents us from having the tranquility and wisdom to live a life of virtue.
For the law to say that a dove-tail with Natural Law is mere coincidence, where the law stands alone, is the law saying too much. I see the law standing, indignant, arms crossed, chest puffed out, and saying "I hereby make it a crime to commit suicide and I hereby deem the penalty for a violation thereof to be death!" And there, over in the corner, is Natural Law, rolling it's eyes and saying "Yeah, sure, whatever."
I may have lost track of all my posts and I'm not inclined to go back and read them. However, I don't think I've ever disagreed with you about, or argued any issues regarding the fallibility of this or that law; it being a good or just or bad or unjust law. In fact, I started out trying to parse a distinction between a simple "law is law" argument and "law must be obeyed because it is the law" argument. I tried to figure out the former because I could not believe anyone would believe the latter, especially an American.
But okay, if all you are saying is "the law is the law" then I will stipulate that the law thinks so. Therefor, it is, at least as far as the law is concerned. On the other hand, if you are saying that the law should be obeyed simply because it is the law, I disagree. The law should only be obeyed because I think it should be obeyed, for whatever reason (expediency, don't want the stick, or I personally find it inherently just and in accord with Natural Law).
On that latter point, I think that law review article I cited makes some good points about how even our new and nuanced laws can be traced back to preexisting notions of justice. Thus, some regulation or policy articulated in the bowels of the CFR or FR about this or that which never existed in the world, prior to the development of this or that technology, still finds the genesis of it's result in Natural Law.
If there is a failure of our minds to meet, it could also be due to what I find to be a natural aversion to the way "Natural Law" is sometimes spun by those with whom I disagree. Like some "sovereign" nut in Idaho who thinks his understanding of God = Natural Law. In that case, I'm with you 100%. But I don't think Natural Law is so constrained. And even then, Natural Law, like the law law, often runs head on into conflict with human nature (Prohibition). One might argue that Prohibition found it's roots in Natural Law, but I disagree. For prohibitionists to wrap themselves in the flag of Natural Law is no more legitimate than it would be for Republicans to claim the flag as their own.
So let's contrast this with a couple of statements from another thread:
Quoting Banno
Quoting 180 Proof
, what say you?
So yes, 180 and I write with brevity. Tully the Colourless tends to great erudition. Is that what you have in mind?
Do you agree that laws should be moral? If not what could be the criteria for legal reform?
I'm saying there are other approaches to morality where care for others plays a minor part, if any at all, yet the person who adheres to such morality behaves similarly as the one who is motivated by care for others. Two examples of such systems of morality are Stoicism and Early Buddhism.
Would encouraging others not to drink and drive (so that they don't run you over) be an example of your approach to morality?
How is your approach to morality similar or different to the one sketched out here in this Early Buddhist text?
Can you explain to me exactly where, or how a law exists? In other words, where is the law in relation to interpretation? Is the law what is written on the paper? If so, what distinguishes a law from other things written on paper? Are all written things laws? If it is the interpretation, the meaning derived by the reader, how do you account for differences? Is each different interpretation a different law? Or do you assume a separate perfect, ideal interpretation which is the law.
I find myself unable to accept the proposition that the law is whatever each of us thinks is not stupid, or not wrong.
There's no simple answer to this, but you seem to be seeking one. I'll try to provide a very broad, nonspecific and general definition as this seems to be what you're seeking.
The law is a system of rules adopted by or which were adopted by a controlling authority or authorities in a nation or society applicable to the conduct of those who are citizens/members of that nation or society, and considered by the relevant authority to be binding, the violation of which may result in the imposition of criminal or civil penalties imposed through a recognized system of enforcing and applying it.
Have at it--what is a rule? what is a controlling authority? what is a nation or society? what is conduct, what is recognized? etc. Could be a number of things.
That's one of the things I'm saying. I'm also saying that they exist regardless of whether they're moral, or wise, or conform to Natural Law, or the social contract, or the will of the people; generally that what laws are and whether they exist is a question separate from their moral, or other, worth.
"It is emphatically the province and duty of the judicial department to say what the law is." Marbury vs. Madison. Chief Justice Marshall delivered the opinion of the Court. 1803.
Quoting tim wood
To the extent it establishes powers in the Articles (taxes, make laws, etc.), those powers are expresly limited by rights acknowledged in the Bill of Rights (and Amendments). The rights which predate the Constitution are those which the Bill of Rights says the governmental powers just granted in the Articles can not be exercised in derogation of. So, while it creates a right to counsel, for example, it does not create the right to keep and bear arms, or the right to freedom of speech, etc. Those rights exist regardless, and to all men, everywhere, even in China. And, because there are other rights not created by or addressed in the Constitution, there is the 9th and 10th Amendment.
We do. The rights exist, and the framers came along and created a Constitution that reduce them to writing and forbade violation thereof by government. As far as the "law is the law" is concerned, those rights exist "under" the Constitution. But that is the law talking to itself. The rights exist anyway and the framers knew it.
Quoting tim wood
I'm not sure where that argument is being made?
180 and I are aware of this. Stoicism and Buddhism have mush to recommend. Their virtue is not to be found in their metaethics, though. It is found in their commended actions.
Recent metaethics distinguishes three forms of ethical theory: deontology, consequentialism and virtue ethics. There are benefits and issues with all three. My sentiments, many years ago, were with consequentialism, which is attractive because it offers a autistic capacity to calculate moral values. My training, at least as an undergraduate, was in deontology, which promises ethical certainty but does not deliver.
So I've moved to virtue ethics, the most directly relevant of the three approaches.
This is basically back to the "is/ ought" distinction. Laws, as it is with social conditions, working conditions, economic conditions, environmental conditions and so on just are what they; which says nothing about they ought to be, On the one hand this hardly needs pointing out, on the other hand the disparity between how things are and how they should be, should constantly be pointed out.
That makes no sense. If there is a right to X which pre-exists it's reduction to writing, that act of writing does not then subordinate the right to the writing. It just places it under the pen. It still exists whether it has been written or not. A deed worthy of the Medal of Honor is done whether the Medal is conferred or not. What will you honor? The deed or the Medal?
Quoting tim wood
All the supremacy clauses in the world don't mean shit to that which exists in spite of them. Nevertheless, I think you misunderstand the Supremacy Clause: It does not subordinate that which it exalts. Rather, it subordinates all else to that which it exalts.
Quoting tim wood
To the extent your use of the term "under" means "subordinate", my rights don't exist under the Constitution.
Quoting tim wood
I do not confuse those concepts, nor have they arisen in this argument. If you would like to go there, by all means, do so and I will engage.
Quoting tim wood
? I've never argued the state could not smack me with a stick. Nor have I argued that Natural Law would allow me to unnecessarily endanger others. Indeed, to the extent the Constitution or any laws promulgated pursuant thereto would infringe upon another right, it is again riding on the coat tails of Natural Law. For example, there is a First Amendment, but any limitation thereon comes from a common law qualification that is in accord with Natural Law. Hence the dangers of pretending to reduce all Natural Law to writing. You are bound to leave something out. Again, though, there is the 9th and 10th and common law and statutes that try to plug the holes in man's pretention.
Quoting tim wood
Again, I'm not sure where such an argument was made.
Anyway, my understanding of all this is what has often been referred to as "hornbook law." So common and well established that I have not bothered to go dig up any citations in support thereof. It's just ingrained. But I went and took a look at some sources I'm embarrassed to even mention here and glommed onto an old term you might look up: Substantive rights (as compared to process rights).
I was impressed by what Cicero had to say about the law. This quote refers to "God" so I need to say he predates Christianity. A better word for his concept of God might be "logos".
Quoting Cicero
According to how you have characterized laws already, I think you are wrong to say here "the law is...". You'd have to say "a law is...", because you've provided no premise whereby you might put one law above another law if two distinct societies have laws which are not compatible. So one law might govern one society, and another law govern another society, but we can't say one or the other is "the law", unless we are members of one society, calling our own laws "the law". In this case we'd have to exclude the laws of other societies from the title "the law".
But my question concerned the existence of a law. You seem to be adamant on the assumption that laws exist. What type of existence do you think this "system of rules" has? Does it exist as writing on paper, or some other medium, or does it exist as the writing interpreted by a mind? The difference is significant because in one case laws need to be interpreted, and the interpretation might be subjective, but in the other case they are already interpreted, and so are inherently subjective.
You'll have to tell me about second supremacy clause. What are you referring to? As to the supremacy clause most people refer to as such, that is simply placing the federal law over state law that conflicts with federal law. It has nothing to do with Natural Law or substantive rights.
Quoting tim wood
As long as I deem those rules, laws and customs to be just. If I don't, then they are to me as the State would have my interpretation be to it.
Quoting tim wood
I hold myself superior to it in the same way that it would pretend to be superior to me. It's not all that difficult. In fact, I don't even have to write it down. I just say so. Hell, I just think so. However, if the State submits itself to my jurisdiction and respectfully requests that I do so, I will take that request under advisement, and possibly do so at my earliest convenience. Or not.
Quoting tim wood
No, it does not. The Constitution does not take away substantive rights. Rather, it imposes upon itself the burden to refrain from messing with my rights.
Quoting tim wood
Natural Law at those substantive rights the Constitution forbids the government from messing with.
Quoting tim wood
You, like the law, appear to be talking to yourself. You ask a question and then pretend to save me the time by providing the wrong answer. Hmmm?
Quoting tim wood
Well, then, you'd be wrong.
Quoting tim wood
See above.
P.S. As a side note; Treaties are the supreme law of the land. HA! Pacta sunt servanda, rebus sic stantibus.
:100: Founding fathers must have been reading Cicero.
As I tried to teach you before, Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.
I don't know were you get a "supremacy clause" out of Aricle I, Section 8. That is the Article that sets forth the powers of Congress to make laws. Congress' power in this regard is specifically limited by the Bill of Rights, as I tried to teach you before.
Quoting tim wood
Then you failed to read the Bill of Rights.
Quoting tim wood
Now all you need to do is read about how natural law relates to the Constitution. Get back to me.
Quoting tim wood
Who said I don't accede to the law of the land? I do, so long as I consider it the law of the land. To pass that test, it must be just. It does not become just just because the state put it in writing. LOL! It is just if it complies with Natural Law (justice).
Look, when the Constitution creates something, it says so.
"X shall have the power to . . ."
But when the Constitution says "X shall not mess with Y . . " without having first created Y, then Y exists apart from and above the Constitution. Can you show me where the Constitution creates a substantive right?
I'm going to cede the floor to you, until such time as you become a little more familiar with the Constitution and how it views substantive rights, how it did not create those rights, and how it self-limited government in relation to those rights. The Constitution speaks for itself, and the laws and judicial interpretations thereof, and the history, the Federalist Papers and a plethora of information are out there for you. Good luck.
How can virtue be found in metaethics?
Ancient systems like Early Buddhism are examples of virtue epistemology: they start with the premise that in order to know the truth, in order to know "how things really are", one needs to be virtuous. In such systems, moral behavior is a means to an end (the end being complete cessation of suffering).
Absolutely and so did the philosophers and anyone who wanted to be educated. That would be an important part of liberal or classical education. Cicero is more responsible for our reality today than Jesus.
Quoting Wikipedia
I really like your post. Confucius explains the importance of virtues and Tao is the way. I think it is unfortunate Western civilization became so separate from Eastern. It was not so separate in antiquity.
Socrates did not hold himself superior to civil society, but he did have a concept of a higher authority. We use the word "God" for the higher authority. We could use words like logos and Tao. I really like Socrates' reasoning, especially as things appear to be falling apart today, the breakdown of family order and the civil unrest that is violent and destructive.
Quoting tunetown187
I think Socrates gave his life for freedom of speech and rule by reason. He could have gotten out of trouble by agreeing to stop talking about the things he believed we should talk about. He could have fled as Martin Luther did. He gave his life for a higher cause than his own life.
Alas, Cicero was a lawyer and an advocate, and though he was assiduous in justifying his legal arguments made in practice (carefully preparing written arguments he claimed he made after-the-fact), what he wrote as a philosopher didn't necessarily comport with the law he practiced and the uses he made of it. "True law" has its uses for some, of course, when violating the law. Most famously Cicero a when counsel had Roman citizens executed without trial, which they were entitled to under Roman law, when he thought a rebellion under way (the Cataline conspiracy). Whether he did so appropriately has been argued ever since.
Not at all. Legal positivism recognizes, as I would think others should because it seems apparent, that legal systems differ. Others may claim that there is or must be only one law or set of laws, governing humanity or the universe at large--e.g. so-called Natural Law. Legal positivists do not. The law in France is the law in France, the law in Japan is the law in Japan, because they are rules adopted by the controlling authorities in those nations deemed to be binding, and are enforceable. We don't have to be citizens of France or Japan to know what law governs in those nation.
I like Socrates. You compared him to Martin Luther, while a previous example was made of the difference between Gandhi and Socrates in the formers refusal to obey unjust laws. I like and respect both.
However, I place my fealty first with the land (physical) into which I was born, expanding it then to the Earth, long before I arrive at any tender feelings for the State. I was born, as some in the antinatalist thread might agree, without having been given a choice. The land into which I was born was previously occupied by a State that itself was dependent upon that land, all whilst exercising an unjust, disrespectful, inconsiderate, and brutal control over it. Rape, if you will.
When some of my fellow citizens of the State wrap themselves in it's flag, which they would deny to any who disagree with them, and suggest I leave if I don't like it, they fail to understand that for me, the name we use to describe this land "America" or the "United States" refers first to my home, which they occupy, and I have no intention of leaving.
It just so happens that when we finally move out from the land to other, much less important things like the State, I do happen to hold a grudging respect, and even love for her aspirations and ideals; as they are articulated in her organic documents, as well as in Natural Law. I happen to think she has promise, and that she is deserving of defense. And she is much better than some alternatives. But I think she would do well to remember her place in the order of things. She should remember how much of what she was and is is totally dependent upon the place over which she exercises "control" and much less on some exceptionalism imputed to her citizens. In theory she is one thing, but in practice she is often just the biggest fucking bully on the play ground. Sovereign? Yes, but in my book, might does not make right. It may be the way things are, but that doesn't make it right.
So yes, Socrates, the "State" is worthy of some consideration. But it has to earn it, prove it. And remember that there are other things in this world too.
End of argument.
Since I was a child, I've managed by observation and study of my interaction with the rest of the world and others of our kind, to learn and resign myself to the fact that things exist regardless of what I, or others, think. Even controlling authorities like, e.g., any of the states of the United States, any of the cities of the United States, the United States itself, and may others around the world. I've found it to be a useful discipline.
Reading your words I immediately thought of all the healthy flesh removed from me when the doctor cut out the cancer. I think there are circumstances when destruction is a necessary part of the good. To be clear, the action is more about the circumstances than the man. It would be prudent for us to look at the importance of culture and the best way to transmit a desirable culture that returns us to civil order. Like a healthy diet can protect us from some cancers, strong family values can manifest strong social order without a strong police force. When people rely too much on laws and a strong police force, there will be serious problems. Cicero lived in volatile times.
I do not think Socrates had a concept of a higher authority. He had a concept of "what seems best". He used the word 'logos' to mean to speak, to discuss, or give an account. What seems best is what follows from deliberating together, the stronger argument. It is important to see that the result of such deliberation is not absolute. Socrates reminds us of our ignorance. We are human, not divine beings.
They do indeed. The stick that hits you most certainly exists. But the X in the sand is a pretender. The foundation of the stick's authority is, as you so eloquently put it "controlling."
I admire Cicero very much. I'm a Ciceronian, after all. But Cicero knew there was a difference between the laws of Rome and the laws of Nature, and would not have confused the two or thought that the laws of Rome did not exist unless they conformed to the laws of Nature. He would simply have claimed that laws which did not conform with those of Nature should be changed, or should not be adopted.
I think there are laws that should be changed. But I don't think the fact they should be changed means that they don't exist or aren't laws.
Exactly, the pope and the church do not rightly have all the authority to make laws, and kings who do not understand the higher law, do not have the questioned right to rule. Everything we value in a democracy rests on the notion of a higher law and the need to comply with it. But without education for democracy, we get reactionary politics based on personal preferences and greed instead of on principles. Power politics such as we have today is destroying our democracy and the only way to correct that problem is through education.
A law or rule of authority that opposes the higher law, will bring down the civilization. Socrates gave his life for his democracy. I think we need to get back to this thinking. It is obvious the racial issues we have today resulted from excluding people of color. Socrates said it may take 3 generations but sooner or later those who are wronged will become a burden on society. We had laws that brought us to trouble, and that is not rightly a law. A democracy is about solving such problems peacefully. Democracy is rule by reason and consensus, not rule by feelings and those who are in power. How bloody stupid to replace presidents who totally destroy the accomplishments of the previous president and put their opposing policies into force. That is not rule by reason. The Bible, Industry, and the Military are about autocracy and the autocrats got ahold of education and used it to produce products for industry instead of preparing the young for citizenship as it once did. Rule by man-made law and police force destroys liberty and that destroys what democracy is all about.
Now we are getting down to the nut: I'm not saying the stick does not exist. I'm not saying the X's in the sand do not exist. I'm not saying the link between the two does not exist in the mind of he who wields the stick. All three of those things exist. I don't see the link. A crazy person may see a connection between two things that are only connected because they say so. I'm not crazy.
There are people who think the U.S. Government had been illegally taken over by a Deep State. They thought they were in accord with the Constitution on January 6, 2021. They based their thoughts upon the U.S. Constitution. Had they succeeded, they would have been right, in their minds. I'm not crazy. They think I'm crazy. Any one is crazy who sees the link.
If you want to wield the stick and not be thought crazy, then you must appeal to reason. Natural Law is the reason which gives the X a stage upon which to pretend. If you pretend upon the proper stage, the audience will submit to the willing suspension of disbelief. That's not crazy.
But remember, the stage upon which the X is drawn is itself sand.
How does this square with the claim that "We are a nation of laws not of men"?
Gandi is a great example of non-cooperation with unjust power. But what followed has been as poorly thought out as the hippie movement.
You write beautifully!
You write of two separate things. DEMOCRACY which is a totally awesome social organization beginning with Athens, which advances civilization, and the Military-Industrial Complex the US became after defeating it in Germany. The US was the modern Athens and Germany the modern Sparta.
Surely that of which you object to is not rule by reason. That for which the US stood is not what the US stands for today. The same thing happened to Athens when its defense against Persia succeeded. Its military power went to its head and it could not let go of its desire for money which it became accustomed to when collecting from all the city-states for protection. It resorted to using force to collect tribute and united city-states against Athens.
We helped the allies win WWI and WWII and then became what we defended our democracy against. The US is now the Military Industry Complex it defeated and much of the world is uniting against US control of global resources. On a finite planet, this is a serious problem. The standard of living in the US is not globally sustainable.
Books about geology might complement your argument. I especially like Youngquist's book "Mineral Resources and the destiny of Nations".
All Greeks came to a concept of a higher authority. "Logos" is a Greek word meaning reason, the controlling form of the universe made manifest is speech. They came to the idea that even the gods had to submit to the law and this line of reasoning pulled them away from superstition and towards the sciences and democracy. Cicero studied in Athens.
We are as the gods because we have the capacity of reason. Now here is the big argument with Christianity, a religion of miracles. Even the gods were under the law, versus a god who can do anything he wills. Which would you label the more superstitious? Truly we can do far more than Jesus could do, but this is not because of supernatural powers. We can do more than Jesus did because of the power of reason. Not even the Greek gods were all-knowing nor all-powerful and being as the gods does not mean having supernatural power.
What a delicious debate this could become. :grin:
There is an irreducible tension between Socrates and the city. His fealty is to philosophy, the examined life. It was in this sense trans-political. Beyond that it is difficult to say where his allegiance was. The problem with thinking his allegiance was to the regime is that it had undergone upheavals and changes in his lifetime. It did not remain the same regime through all those changes. The same problem arises with the law. Having said that, however, it does seem that he was loyal to the city and its laws.
What the Greeks understood by 'reason' is not what the term came to mean for us through modern philosophy. Anaxagoras said 'nous' (mind or intellect) orders the cosmos. Reason is a Latin term, from ratio, used to translate the Greek dianoia, discursive thinking. It differs from noesis, a kind of direct apprehension or seeing with the mind.
What the logos meant for Heraclitus is controversial. When he says: " ... all things come to pass in accordance with this Logos ...", he might mean that the Logos is the guiding force or he could simply mean that what he is about to tell us is the way things are, the truth. Preceding this he begins: "Although this Logos is eternally valid, yet men are unable to understand it – not only before hearing it, but even after they have heard it for the first time …".
It should noted that the Greek philosophers, in imitation of the Greek poets, placed the authority of what they said not with themselves but with God or the gods.
In the Phaedo Socrates says that he had been drawn to Anaxagoras' claim that Nous orders all things, but was disappointed to learn that he gave only physical explanations and did not say why things should be the way they are, that is, why it is best that they be this way. Socrates was left on his own to discover what is
best, that is, his "second sailing", his recourse to speech.
It is not divine reason made manifest in speech, but rather, human speech attempting to know what is best.
I prefer to think that we are a nation of lawyers, not men. But I'm being silly, and digress.
I think the claim that we here in God's Favorite Country live in a nation of laws, not men, is founded on the belief that laws, once adopted, apply equally to all people that are citizens of our Glorious Union, including members of the "controlling authorities." In theory equality under the law may be true; in practice, not so much, as they say.
Where the law applies equally to all, including members of the controlling authorities, it's possible to contend that the laws govern us all. This doesn't mean that the law never changes, though.
While I think Natural Law is at worst a chimera, at best a misnomer, I think that the more our judgments and decisions, including those regarding law, are guided by informed reasoning, the better they will be. That is the creative, intelligent process of inquiry--a method of making judgments. I don't think this entails a belief that what is sound, or right, or good in particular situations, legal or otherwise, pre-exists somewhere in nature as a law or derivative of a law of nature, however.
With that thought in mind I will have trouble sleeping tonight.
Quoting Ciceronianus the White
Yes. The laws themselves are, of course, the laws of men - by men for men. (I use the term 'men' here because it is how the quote is phrased).
What I am questioning is the notion that laws are:
Quoting Ciceronianus the White
This implies that the controlling authorities, whoever they may be, can by fiat make or change whatever laws they see fit. There is a sense in which this is true, providing they have to power to do so. And if they do so, us law-abiding citizens have no choice but to comply.
Changing the law is something controlling authorities may do, for the better or for the worse. Whether a choice to abide by them or violate them is available will depend on the circumstances.
So doe this mean that when the US Constitution says: "Congress shall make no law ..." this really means it shall not do so unless or until it can if it so chooses?
That would require an amendment to the Constitution which can only be made as set forth in Article V, and is no easy thing:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
So, it's very unlikely. But who knows? We were stupid enough to adopt the 18th amendment (Prohibition) which was effective in 1920, and it took us 13 years to adopt another amendment repealing it.
Odd... I said it wasn't found in metaethics.
This assurance is not as comforting as it once was. There are those with considerable influence who are right now working to get the states to call a convention.
https://www.commoncause.org/resource/u-s-constitution-threatened-as-article-v-convention-movement-nears-success/
Having been exposed all my life to wildly disparate perceptions of single things, by different people, you’d think it would be “ho hum.” But I still get surprised. Here you see Natural Law as a chimera, where I see law as pretender to Natural Law. LOL! It’s a good thing that we disagree, I suppose.
I walk ninety miles through a physical wilderness of reality, climb atop a mountain and look back over the land I have traveled, seeing nature; seeing reality. An awesome sight it is. Beautiful. Some years later I enter a bank, or some other financial institution, and recognize there on the wall a plein-air painting rendered from the same vantage where I had stood. I recognize the place. That painting can travel, and go places, to banks and galleries, and elsewhere. And when it gets there, it can “speak” to people who have never seen the place. They recognize what the painting represents. But they know the map is not the terrain. It is merely a map. It is simply a painting. A subjective interpretation of what it real. They know nature is no chimera. They know it in the evolution of their bones. They may want to go see the place someday. But if they do, it will be familiar to them, because it is the stuff they are made of. Yet there are a few people who are satisfied with the painting alone. They think that painting is real. And it is. It is paint and canvass and frame. But it is a mere pretender to the glory we all, in our hearts, know exists out there in a reality we understand, have evolved with, but may never see.
It’s all good.
I write only of what our organic documents would have us aspire to. You are correct, though. We have certainly gone off the rails.
Quoting Athena
I think I shall look that up, thank you. Your sentence calls to mind something I wrote a few years ago, out to Utah and Arizona:
"It’s a fur piece from the Vishnu Schist to the distal twist. Climbing from the depths of the Grand Canyon to the tip of a bison horn will cover some miles of vertical distance, and one thousand seven hundred fifty million years.
And from this are missing tens of millions of years of steps on this Grand Staircase below Escalante. It’s entirely possible that everything we know has come and gone, several times, and left no trace. Hell, there was the “Ancestral Rockies”, a mountain range arose and reduced to a sea which lay where my Rocky Mountains now stand. Again. How do you wrap your brain around that? How do you look at these granite peaks and see them melting rapidly away, like an ice cream cone on a hot summer side walk? How do you see that continental crust, that sidewalk, and the countless trillions of tons of rock above it? How do you see that as light and fluffy, floating on a magma sea? The oceanic crust is too heavy to support us. It lies beneath the waves.
How do we know there was no creature before us, better than us, smarter and more artsy? We don’t. We don’t know schist."
Quoting Banno
from which I surmised that you hold that virtue can be found in metaethics, it's just that the virtue of Stoicism and Early Buddhism cannot be found in their metaethics, but is found in their commended actions.
I wondered how can virtue be found in metaethics to begin with.
I want to follow up on this. Earlier you said:
Quoting Ciceronianus the White
If the controlling authority, however improbable we may hope it is, decides to reject the law as it is now written and practiced and institute new laws favorable only to its sovereignty, ignoring the rights and well being of its citizens, then this would be entirely lawful. In so far as that is the case legal positivism seems to rest on the assumption that might makes right and justice is the will of the stronger.
In determining whether, and stating whether, a law exists legal positivism makes no claims regarding whether it is right or just. Whether a law exists doesn't depend on its merits.
The belief that there are discernable, forever and everywhere applicable laws governing human conduct enshrined, as it were, in nature, is what I dispute. We tend to disagree just what those so-called laws provide. For example, some people feel homosexuality, gay marriage, and certain sex acts are contrary to natural law. Some feel abortion is contrary to natural law. Recourse to claimed natural laws is too often made to justify what is mere prejudice or custom. The response that folk who think natural law is something we feel it isn't don't know what the true natural law is, merely serves to establish there is no such law.
You fail to draw a distinction with a relevant difference between Natural Law and the law. We disagree what the law provides, and recourse to the law is too often made to justify what is mere prejudice or custom. The response that folk who think law is something we feel it isn't don't know what the true law is, merely serves to establish there is no such law.
In this light, it is the law which merely struggles to say what Natural Law would say about a given situation in dispute. It toddles along behind the Natural Law, trying to learn from it, tweak itself, explain, justify, respond to all the little nuances that Natural Law shows as necessary to justice. All those thousands of little variables that go into the consideration of what we are to do with a given homicide are just the law trying to address arguments made by a party in distinction of facts. Someone once said, in accord with Natural Law "Thou Shalt Not Kill" and reduced it to writing and the law. Then, over the course of millennia, the law ran head first into Natural Law, where vagaries were found, nuance, and reasons to not be so stupidly simplistic as the original law. Then we had all the levels of murder and all the defenses and all the different punishments etc. That is simply the law trying to catch up with Natural Law when the law realizes how stupidly simplistic it was/is.
One of the things I walked away from the law with was this: It seemed to be primarily designed to keep the peace, not through the application of justice, but through the exhaustion of the party's emotional and financial resources to the point where they would not engage in self-help. I never once saw what I thought was justice. And that was not simply a failure on my part to agree with the result. Rather, everyone, parties, counsel, the judge and all hangers-on, walked away having lost for having touched the law. Winners were still beaten and the stick had won.
The one legitimate argument for total war is it's realistic understanding of the need to deprive the enemy of the will to resist. The law is just a slow roll version of total war and, just like war, even the "winners" have to pay.
It seems to me that determining whether a law exists is rather straight forward. Interpreting and applying the law, not so much.
If we look at legal practice things are not so clear cut. Consider "penumbra", legal activism, and stare decisis.
The fact I've said I think "Natural Law" is at worst a chimera, at best a misnomer, seems to me to indicate I've drawn a significant distinction between it and positive law.
You've entirely failed to distinguish Natural Law from law. Calling X "this", does not distinguish it from Y. Are we to make a leap from your understanding that because Natural Law is "at worst a chimera, at best a misnomer" to the notion that you hold the opposite to be the case for law? That therefor the law is the opposite, or at least not those things, or at least not as much those things? Because you have not said so. Instead, you tried to describe Natural Law, and when I told you the same descriptions are applicable the law, you have not argued otherwise. You avoided distinguishing the law from those traits you ascribe to Natural Law. I don't believe you can, because the X in the sand is more a chimera than the sand itself, or the stick that was used to draw it, or the person who wields the stick.
You astonish me, I must admit. I'll try to state clearly what I think should already be clear.
I have no idea what you think to be Natural Law, or why you feel there is such a thing.
However, I think there is no law given by God. I think there is no law imposed or prescribed by Nature applicable to how we should act. That's mostly because, to put it very simply, I think "law" is an enormously complex set of rules or regulations applicable to human conduct, a system or resolving disputes regarding those rules and regulations, and system of enforcement related to them, adopted and accepted by controlling authorities within a nation or society. I think law is an entirely human contrivance, and to use the word to describe what is not of human contrivance is improper, and confusing at best.
If "Natural Law" is claimed to consist of "laws" governing our conduct which were not created and adopted by us, I believe there is no such thing. I think it probable that people who proclaim there is such a thing as Natural Law do nothing more than state that there are purported "laws" which have not been developed by human authorities which they believe should have universal application.
Again, odd.
Astonishing.
Again, as you define what you perceive to be the ills of Natural Law, you fail entirely to show how the law does not suffer from those same ills, and then some. The best and only thing you have done to distinguish them is to point to pen and paper. But again, that is a distinction without a difference, and it actually serves to prove out Natural Law when pen and paper are following it. When we perceive injustice, we try to correct it with pen and paper. But the perception of injustice is Natural Law. It is the appeal to reason that makes the law more than a stick, and reason is found in Natural Law. It reminds me of the old (paraphrasing here) "I don't know what it is, but I know it when I see it." LOL! That's the law running head first in Natural Law. It then continues apace in efforts to reduce the feeling to writing. And it is that writing which suffers all of the ills you mistakenly attribute to Natural Law, and then some.
Indeed!
Remarkable. I don't think I've ever encountered someone who thinks so differently than I do, and whose understanding of words is so unlike mine. Why that's the case may be worthy of study in itself, like some other novelties. Perhaps it's because I haven't climbed that lofty mountain you mentioned earlier, and so cannot survey the world from its summit as you do. But that's a different inquiry.
Normally, I'd think it would be obvious to anyone who bothered to read the OP itself, let alone the balance of my posts in this thread, that I sympathize with the view of legal positivism that whatever merit a law may or may not have, and whatever it's "ills" may be as you put it, has no relation to its status as a law. So, your statement that a law may be defective in some sense, which is something I've acknowledged more than once in this thread, has nothing to do with my position. You may proclaim that from your mountaintop as much as you please, but it is entirely irrelevant.
Your claim that our "sense of injustice" is Natural Law is interesting, though, as it suggests that what you think to be Natural Law is in not a law or set of laws by any definition, I think. It is--unsurprisingly--a sense; a feeling, a belief. That sense may be entirely appropriate as a law may well be unjust. That doesn't make it something other than a law, however. Please don't say I haven't said what I think law to be, as I have, more than once.
If you maintain Natural Law is our sense of what's just or injust, right or wrong, that may explain much, though, as in that case you haven't been referring to law of any kind, you've been referring instead to what you claim is or is not moral. And a law, to be a law, need not be moral in order to exist.
I went back to your OP to see if I could find where the problem is. I think the “positivists” have set up a straw man with their “Value-free” and “assumed standard” for Natural Law, with the latter thought to be some objective, omnipotent, universal truth. It’s not and no one ever said it was. And the essence of Natural Law is Values.
In the beginning, man had lots of feelings. Five of those were feelings of what is good, what is bad, what is right, what is wrong, and what is just. He found these feelings to be valuable to his daily life.
However, his feeling of what is just compelled him to justify his feelings before reducing that which was valuable to values. So, he used reason to justify his feelings. In the end, he had a reason. All of this, and I mean all of it, preceded and provided the reason for his Johnny-come-lately written law.
There was not universal agreement on feelings. Bob’s clan over here felt that FGM was good, and right, and just, and valuable. FGM became a value, it was justified and this formed the reason for law.
There was Sam’s clan over there who felt that FGM was bad, and wrong, and unjust and not valuable. It was not a part of their values so they did not reduce it to law. In fact, after they saw or heard about Bob’s clan, they drafted a law against FGM.
Where one man might say that a failure to recognize his law does not mean his law does not exist, so too, a failure to recognize Natural Law does not mean Natural Law does not exist. And neither Natural Law or the law are inviolate. Both are disagreed with and violated all the time. One might say the only distinction is that one is not written down, while the other is. However, that is not the case. Because the law is the Natural Law written down.
Feelings are Natural Law. In fact, at a group level, Natural Law can be defined as “feelings agreed upon.” Simple law does not exist without reason. In fact, its compelling justification is its reason. People voluntarily abide it because it has a reason. Without reason, its only compelling case is coercion. Coercion can occur with or without a writing.
So, where it is stipulated that law exists, it can be stipulated that it only exists for those who recognize it and agree with the reasons that are used to justify its value. If there is a conflict between Natural Law (one’s feelings about good, bad, right, wrong, justice) and the law, then the law does not exist because it has no valuable justification or reason. Bob’s clan can say Sam’s clan has laws, but they aren’t Bob’s clan’s laws. They don’t exist for Bob’s clan.
I think a fundamental mistake in reasoning comes from a misunderstanding of what Natural Law is. I glean this from your OP: “O.W. Holmes, Jr. is considered to be one of the proponents of what's been called American Legal Realism, which is similar to legal positivism in its rejection of natural law theory and its value-free approach to law.” [ Emphasis added ]. Natural Law most definitely is not value-free. I don’t know where anyone got that idea, but they damn sure didn’t get it from the Founding Fathers or the Enlightenment. Nor is Natural Law objectively true or omnipotent or universally agree upon. To say it is, is to create a straw man, based upon an interpretation of Natural Law that is not correct.
Our Founding Fathers found a feeling they could not justify, so they called it a self-evident truth. Not only is their truth not true, physiologically or otherwise, but they then parsed the definition of “man” so they could get around slavery. Nevertheless, it is our feeling that all men are created equal and it formed the justification, the reason, for all that followed. But all that followed was mere law.
The law does not provide the reason. Reason provides the law.
And reason is an effort to justify feelings about what is good, bad, right, wrong and just. These feelings spring from within. They don’t come from law. Feelings agreed upon are Natural Law, as far as the state is concerned.
Finally, there need not be any agreement for an individual man. The feelings are the “assumed standard” for those who feel them, and they are replete with value.
"This is a court of law, young man, not a court of justice."
--O.W. Holmes, Jr., speaking from the bench during court proceeding.
That is a good clarification, knowing the positivists think the law is value-free. One can read his words "legal positivism in its rejection of natural law theory and its value-free approach to law” as meaning Natural Law is value-free. It all depends on what is referred to by the second "its". Personally, I think both are steeped in value.
And that is where the law ceases to be the law. It becomes a mere court. If there is a conflict between Natural Law (one’s feelings about good, bad, right, wrong, justice) and the law, then the law does not exist because it has no valuable justification or reason. Bob’s clan can say Sam’s clan has laws, but they aren’t Bob’s clan’s laws. They don’t exist for Bob’s clan.
And yet the statue of Justice stands as the symbol of law.
The statute you refer to depicts the Roman goddess Justicia and represents Justice, one of the four Roman virtues, not the law. If it's a symbol of law, it is in the same sense that the Statute of Liberty is a symbol of the United States. Liberty isn't the United States; Justice isn't the law.
I don't think anyone is arguing that the law is not a fraud, not a chimera, not a mere pretender to justice. It's just disconcerting to have the law actually come out and admit it, ala Holmes.
We used to have a standard attack on administrative action under the APA: it was "arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law." LOL! Then we'd get to the law, the implementation of which was itself arbitrary, capricious, an abuse of discretion and otherwise not in accordance with justice. And that is why the law now operates largely by the stick and not by persuasion of reason. The law doesn't even pretend to reason any more. Insert multiple dollar signs here. Just STFU and do what you're told.
According to Wiki (with reference footnotes):Lady Justice (Latin: Iustitia) is an allegorical personification of the moral force in judicial systems.
Justice is not the law, but the idea of the law without regard to justice is, in my opinion, impoverished.
To the extent a hinge proposition is presupposition that cannot itself be rationally established, defended, or challenged, that would be the value-free law. Natural law is justification, rationale, and reason behind the law. We used to actually argue that in court, especially in equity. Maybe that has become passé, I don't know.
I'm no expert on hinge propositions, but when I looked it up, they were said to be not rationally established, defended or challenged. That would be value-free law, not Natural Law. Natural Law is the opposite, as I addressed before in describing feelings, justice, values, justification and reason, etc.
Nor am I misusing the term "law." As demonstrated in the same post, Natural Law (justified) is not misusing the term "law." It's not addressing "law" at all. Law falls in line behind it; either that or it lacks reason. Who is going to say we have no reason for our law? Apparently the positivist. LOL! Good luck with that. If a law has no reason (no justification) then it can't be just and then there is no reason to obey it (other than the threat of violence). And who is going to say might makes right? Apparently the positivist. LOL!
One can and always should ask of a law "is it morally good." Doing so is not replacing morality with circularity. It's begging for reason, for foundation, for justification, for an answer as to why a law should be obeyed.
Why? After all, values do not need to be rationally established, defended or challenged... A value looks like a prime candidate for a hinge proposition to me: Why do you like vanilla ice cream? No reason - I just do. My value is not rationally established, defended or challenged; but it is not value-free.
It remains problematic to say that natural law justifies positive law, and also that "Natural law is justification, rationale, and reason behind the law"; all you are saying is that positive law is justified by the justification, rationale, and reason behind the law - that law is justified by what justifies it.
That ain't helpful
It's a non-issue for law, if law is value-free. But I'm not sure where you get the idea that a value does not need to be rationally established, defended or challenged. It most certainly does if it's going to be persuasive. As already explained, that feeling that we find valuable cannot justifiably be reduced to a value until there is a reason for it. My liking ice cream is not a value, and even if we were to stretch a "like" to becoming a value, my "value" of ice cream, unlike the law, is not seeking to persuade anyone else to like it.
Quoting Banno
It ain't helpful because you're allegation of circularity is based on your failure to address the linear chronology. It's laid out in my previous post and I'll not keep repeating here. Suffice to say, Natural Law does not so much justify law, as law rides in on the coat tails of Natural Law.
No, I'm not.
That would be the expected (demanded?) response to a value-free law. I, however, as a champion of Natural Law, have done the courtesy of justifying my response in a linear explanation in another post, demonstrating that I am not "trying to justify law with more law."
A link might help, then. To what do you refer?
I'm new here, and apparently people don't talk to or respond to anyone not tagged. So I apologize. I just assumed you had been reading this thread. Maybe you are just doing drive-by sniping with no background in the discussion. That would explain the failure to understand. So, by way of justification, I will just refer you to the OP and then page six of this thread.
I'm going to go watch a movie and cede the carcass of this beaten horse.
Enjoy the movie.
Ninth post up from bottom of page six, et seq.
Laws that are mala prohibita prohibit conduct unrelated to morality. The zoning law dictating the color scheme of the homes is an example. Laws that are mala in se prohibit conduct on the basis of morality. Rape and murder would be the example. Mala in se are the laws we're interested in here.
If we accept moral realism, then the rules governing the creation of a proper mala in se law are immutable. We may not be correct in our conclusions of what is moral, but under moral realism, there is a Good and a law requiring rape is a logically contradictory mala in se law. It is a law demanding moral conduct yet it is immoral.
The rules governing a mala in se law are the rules of natural law. That is, if moral rules exist objectively, then laws dictating morality (mala in se laws) must adhere to these rules. The natural law cannot be violated under this scheme.
Is the debate then only over what you insist the word "law" means? It does appear you wish to prescribe a definition to the term "law" and require it only mean a specific codified written rule by a human law making body. That's simply not what the posters here take to be the definition of "law" within the the context of natural law though.
https://thephilosophyforum.com/discussion/comment/523588
oh well, my thought concerning hinge propositions was an attempt to understand your position in my own terms. I suppose if you don't agree with it, then I have not understood your position.
I don't know if I agree with it or not. I did not know what a "hinge proposition" was so I looked it up and it seemed to describe simple law and not Natural Law and so I commented on that.
Quoting Hanover
:up:
I don't speak Latin but that does bring back memories of school. I thought it was malum but again, I don't speak Latin and it's been a million years.
I grew up with the notion that songs and stories and inventions are in the universe waiting to be manifest by someone. Such as an idea that its time has come. This goes with Jung's notion of realizing concepts through experience. Humans living in comfortable climates where it is easy to grown food have a diety that provides for them. Human beings who live in harsh climates have a sky god who kills people in snowstorms and does not take care of them, so they live in spite of a god's effort to kill them.
For me what Heraclitus said means that Logos is the guiding force. How I understand logos, reason, the controlling force of the universe does not begin with a reasoner. It begins with universal laws. It is as it is because it can not be otherwise. The reason things stay on the earth is gravity. The reason we hear is both the receptor in our ear paired with brain function and sound vibrations. When we look for the reason of things we get philosophy and then science. We move away from the belief in supernatural beings.
This notion could come from the deserts where mirages are apt to happen. However, other cultures independently came with a notion of a trickster and tell about it in folktales. Jinn and tricksters violate the law as we know it.
I don't know your course of study but by nature, you are a geologist or related science such as anthropology. I believe we are in the "resurrection" only it is manifested by normal humans and science, not supernaturally. Geologists and anthropologists and related sciences are bringing the past into the present and I think it is our job to learn all we can and rethink our understanding of reality.
I like
Quoting Banno
When we blend that with the "resurrection" we get something very exciting, and as far know we are the only life form that can do this and the technology of computers and the internet is essential to this expansion of consciousness.
I have no belief in the supernatural but I do recognize the power of myth and the imagination.
Absolutely! My thoughts on that are being explored in a different thread. In this thread, we base our laws and policies on what we imagine to be true. Is there is a difference between what we imagine is true and what we can know is true?
That "we" doesn't include me. I'm addressing the law, which includes zoning laws and other laws. I don't think we can select particular laws and use them to define what the law consists of, if we want to define and analyze what this interesting thing called "the law" we humans create is and means, and how it functions.
Quoting Hanover
Which means that I draw a distinction between positive law and natural law, and others do not. I find the distinction obvious, and frankly nobody has in the least bit challenged that distinction.
We lawyers don't practice natural law; we're not "natural lawyers." When we attended law school, you and I weren't taught how to be good,or just, or moral, nor were we taught that the law we were to practice was what God or nature established. We weren't admitted to the bar because we were learned in natural law or ethics. The Uniform Commercial Code wasn't written in heaven (especially that portion of it relating to commercial paper, which it is more likely would have been written in hell).
If people define "natural law" as being in some sense related to and identical with our sense of justice, sense of duty--sense of right or wrong, or morality--that's fine with me. But I don't think those are laws.
Nor is my definition of law unusual, judging from dictionary definitions. According to Merriam Webster Online, law is:
[i](1)a binding custom or practice of a community : a rule of conduct or action prescribed (see PRESCRIBE sense 1a) or formally recognized as binding or enforced by a controlling authority
(2): the whole body of such customs, practices, or rules
The courts exist to uphold, interpret, and apply the law.
(3): COMMON LAW
b(1): the control brought about by the existence or enforcement of such law[/i]
The Free Dictionary:
Law
[i]A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority.
In U.S. law, the word law refers to any rule that if broken subjects a party to criminal punishment or civil liability[/i]
Collins English Dictionary:
The law is a system of rules that a society or government develops in order to deal with crime, business agreements, and social relationships. You can also use the law to refer to the people who work in this system.
We can all agree that laws should be just. I would agree, in fact, that laws should be in accord with reason. But we fool ourselves and create confusion when we insist that laws which aren't just or reasonable don't constitute laws, or aren't part of the law.
Well clearly, to call something a law when it doesn't address law at all couldn't be a misuse of the word "law"! Who would think that something called a "law" would have anything to do with law?
Ah. I'm curious. When did the law operate by "persuasion of reason"?
You are failing to parse what you and I both have been parsing all along: A distinction between Natural Law and law. I even tried "law law" when I thought you were falling behind, but when you caught up, I figured I didn't need to do that any more. So, let me try it again: "As demonstrated in the same post, Natural Law (justified) is not misusing the term "law law." It's not addressing "law law" at all." Law law springs from Natural Law so, while it may address Natural Law, Natural Law is not going to spend a whole lot of time, if any, discussing law law which tries to live up to it's mentor.
Ever since it tried to get along without the stick. Life's a lot easier when people go along with you because they agree with you. You know, reason. But the reason that you better obey because I'll smack you if you don't, is not reason at all.
Except there are different kinds of laws, some that require an evaluation of the justice they provide and others that don't. It's for that reason a homosexual has the right to marry a person of the same gender, despite the law saying he does not. All laws aren't in principle the same, so you can't treat them as the same.
Quoting Ciceronianus the White
Again, how is this at all relevant? If it is in fact that case that you and I were taught a particular way to practice law, does that mean that is the only way to be taught? As I've noted several times (1) there are instances in Anglo law where reference is made to natural law and I cited a case that made direct reference to God, and (2) there are many societies that do in fact unapologetically subject their laws to a determination as to whether it's consistent with God's will.Quoting Ciceronianus the White
If a system if devised that subjects legislatively passed laws to a theocratic body to determine if they comport to divine law, then do you argue that it's a law until it's over-ruled and now not a law, or would you agree it was more akin to a bill that had yet to gain full force of law until it received theocratic review? If you argue the latter, then we don't fool ourselves when we claim laws passed by men were never true laws if they violated natural law, but we accept the true legitimacy of the law is dependent upon whether it passes fundamental principles.
And, even should you claim that the system I've described is not the American one, that hardly matters.
I've defined the law as I think it to be. So have the dictionaries I referred to above. By those definitions, the laws of one state or society may differ from the laws of another. The laws of Iceland may vary from the law in the U.S. They nonetheless remain the laws of Iceland.
If you disagree with those definitions, so be it.
So Natural Law is not the law. It seems we agree after all.
Which was when? Where?
Correct, a parent is not it's child. The law springs from Natural Law.
When the first law was written. You name where. Anywhere.
How do you know matters were settled by the persuasion of reason prior to the time the first law was written? Never mind. That's enough, I think. Acta est fabula, as Augustus said. No applause necessary.
Alright, I'll crack open my dictionary as well:
Natural law is defined as "a body of unchanging moral principles regarded as a basis for all human conduct."
Positive law is defined as "statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want. Compare with natural law."
So, my questions are these:
Is natural law a type of law?
Is there is a distinction between "law" as you have presented it here in this thread and "positive law" as I have defined it here?
I'm beginning to think that the reason you argue against the existence of natural law is because you define "law" and "positive law" synonymously, making the word "positive" superfluous. To the extent my thought here is correct, I would agree with you that there is no such thing as natural "law" to the extent "law" is being defined as "positive law," which would equate by substitution to the term "natural positive law," which surely there is no such thing.
To the extent the stick was used, they weren't. To the extent the stick was not required, agreement came by persuasion which is based on reason. Study of indigenous societies that don't have law are examples.
Quoting Ciceronianus the White
You lawyers do indeed practice Natural Law, and you are Natural Lawyers. Someone just, obviously, had to write it down for you. As said long ago, the law is for people who can't take a hint. As to law school, speak for yourself. The law school I went to, and the bar I was a member of, and the test I took, was composed of a huge chunk of ethics. In fact, even to the extent that zealous advocacy was supposed to produce a result, that result was supposed to be just. Hence the law and rule framework within which we worked. You know, for those who didn't know better.
For me, natural law is not law. "Moral principles" are not law. They're principles.
Positive law, as you defined it, is the law I refer to in this thread, and the law Austin referred to as I quoted him in the OP.
There's a difference between morality and the (positive) law. I don't think they can be conflated, nor do I think they should be. What a law should be is, in many cases, different from what it is in fact. When we study the law, when we encounter it in our lives, when we practice the law, we aren't dealing with morality or principles of morality.
All which you describe (from feeling to reason; from individual to community) precedes the reduction of it to writing, and it constitutes Natural Law (whether good or bad, right or wrong). It only becomes law when reduced to writing. The writing is the law. Or the law law. And it does not stand on it's own or spring from the ether. And it too can be good for bad or right or wrong.
And that is why some people don't recognize the law. It's not their law.
The idea that zealous advocacy confined by law, will somehow produce a legal result is like the forgiveness of sin for Christians: If you don't mind your p's and q's you will think that you are free to do whatever because, well, you're forgiven. The lawyer can do whatever, sans ethics, because, well, he's just pursuing the interests of his client. Like the corporation is legally charged with making money for the shareholders and can thus point to that mandate as it does something unethical.
But in the end, they all come back to Natural Law which forms the basis of the confines of the law, in equity or at law. But yeah, there are a lot of folks like Holmes running around thinking they are the law and they are ethics. And that is why the stick must be used. They have no reason.
I do.
This thread went down that rabbit hole at the beginning. I could not believe the OP would be saying nothing more than X=X (i.e. the law is the law is the law) so I tried to understand what he meant beyond that. When I took a stab at an alternative, I was reigned in. So I was left with the only possible distinction left and that is this: The stick exists. The X in the sand exists. The person who wields the stick honestly thinks there is an independent nexus between the X and the stick. I don't. So, while the stick exists and he can hit me with it, I see him hitting me with the stick and he see's himself hitting me with X. He recognizes his X (X=X=X). I do not. If he wants obedience beyond coercion, he must appeal to reason. Failure to do so leaves him with nothing but a stick. Most of your post was pre-X. Good stuff.
It doesn't appear to me that you're arguing that moral principles are not law. You're arguing that the law is comprised of "statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want." Ergo, if a legislature laid down a statute that said all laws must be moral, such would be the "law" according to your argument. It's for that reason I've asked the question why you find it relevant that US law doesn't happen to ask if a law is moral when it evaluates whether it is a legitimate law. Under positive law, it could ask such a question if there were a positive law that required it.
Complicating matters is the fact that laws are not all the products of legislatures with clear dictates, but some are judicially created and subject to much nuance with unclear boundaries. Since that is the case, an argument can be made, especially on the Constitutional interpretation level, that laws must pass moral muster in order to be declared Constitutional. You may argue that is a perverse way to view Constitutional interpretation, but should it eventually be judicially declared that an unapologetic moral evaluation be conducted to determine Constitutional legitimacy, then that would be a positive law institutionalization of natural law. I see nothing inconsistent with there being a positive law requirement for moral evaluation of law, which is at some level what happens in many cases throughout legal interpretation, in some nations explicitly and in other (like our own) not as explicitly.
I say all this because, as it seems, you're not objecting to what the law says. You're objecting to any claim that the law comes from anywhere other than the hand of man. You're also not denying that there are rules that derive from a source beyond man. You just refuse to call those rules "laws."
Quoting Ciceronianus the White
then the answer that the law is whatever the law says it is is unsatisfactory. The question of the nature of the law asks about from what it derives its authority and legitimacy, it social and political function, its responsibility to the people, its source and power, etc.
I would assume such people think that, when the world we live in fails to meet their expectation, it isn't their world. But the world isn't their world, nor is the law their law.
First, you assume too much. Second, it's not about expectation. Natural Law has nothing to do with expectation.
If someone smacks you upside the head for no apparent reason, then, even beyond the calmest, coolest most objective view of the situation, you will most probably have a feeling about the action or the person who executed the action. I will gareeonfreakingtee you, you will not have that feeling because someone told you to have that feeling. You will not have that feeling because it is written that you should. You will not have that feeling because the law said you would. You will have that feeling because of Natural Law. Natural Law tells you "That ain't right!" Most folks would agree with you, and at some point, when we learned how to write, somebody put it in writing just in case some idiot didn't know any better than to go around cuffing people upside the head for no reason. The law itself is better than that idiot and at least pretends to have a reason before punishing some idiot. That reason is Natural Law articulated.
:100: I'm thinking that about nails it. Part of "human conduct" is "laying down statutes."
I object to what many laws say. Alas, the fact I object to them has nothing to do with whether or not they exist.
I think it's a misuse of language to call something a law which doesn't have any resemblance to a positive law. I think it's possible to make reasonable judgments, of fact and value, and other matters in the scope of human conduct, but don't believe these judgments derive from a "source beyond man" or that in making such judgments we act in accordance with "laws" adopted or imposed by God. Nature, as I understand it, adopts nothing; it makes no laws, it simply is, and we're a part of it. We know things and can infer things from our interaction with the rest of Nature, but that doesn't mean that there are laws inherent in it which govern how we should behave in the sense that a law would.
I wonder why you insist on calling such feelings "Natural Law."
Seems obvious. Hence, the question "Is that law good?" remains open.
Wonder no longer: "Natural law is defined as "a body of unchanging moral principles regarded as a basis for all human conduct." See above.
That analogy breaks down because the meal is the sum of it's parts. Whereas the law is not the sum of Natural Law. It is a mere pretender to it. To straighten your analogy, no one would say the menu is the meal or the ingredients. The law is a menu.
As to the balance of your post, that goes to the issue of the adequacy of the law which is not in question. I think both "sides" to this debate agree that Natural Law and mere law can both be flawed, inadequate to a task or otherwise disagreed upon.
...and the obvious point is that moral principles are not law.
No one ever said they were. They are Natural Law, not mere law. I'm not sure if you've been following this thread, but we have been using the term "law" to refer to statutory, Constitutional, or written law, as opposed to Natural Law.
Ahhh a philosophy of law question and I totally missed it.... I apologise for not reading through 8 pages of text, I read the first two. So it may be that some of the points I will cover here will already been covered before, my apologies in advance
Quoting Ciceronianus the White
Well, not where I am from, at least not wholesale. The problem is not that simple, it turns out to be rather complex but very worthwhile to think through. A bit like Hegel's writings actually. ;)
Making the distinction is of course appealing. As Hart says, it is a mere matter of methodology. We at least know what we study when we differentiate between what is law, that which is accepted as a binding enforceable set of rules, and that which is not law. Standards of morality, aspiration, all kinds of things, but not law. So far so good but Hart and Austin also accept that a characteristic of law is that it demand compliance. From where does it gain that normative force?
Austin tried to answer it and his answer basically comes down to violence. Law gains its normative force because it is issued by the sovereign. Well Hart made short work of that and said that if that were true, the law would be no different than the command of a leader of a gang of bandits. We do not see law in that way. We do not see it as just commands, but also as a legitimate command. Now where does it gain legitimacy from According to both Kelsen and Hart it came from higher law. Law is legitimate when it is based on a higher law. So for instance the judge's conviction of a murderer rests on the model criminal code and the model criminal code in turn rests on the consitutions.... turtles all the way down!
And yes also with the turtle problem it has to end somewhere. Hart offers as the end point the 'rule of recognition'. The rule of recognition, being the putative rule that rules them all might be the constitution but if we ask on what the constitution is based, Hart points out that in the end it is based on the acceptance of the legal professionals. Lawyers recognise it as law. So in the end his explanation for laws legitimacy is sociological, it rests on the acceptance of the people. They accept a certain government and consider its edicts to be binding and therefore they come to be. When revolution comes after a time of turmoil a new rule of recognition will come to be accepted and in turn becomes the law of the land.
Now that means positivism, in last instance, says that law is what law does, better, what lawyers do. that left him open to what I consider a deadly objection for wholesale positivism. If we say that law is what lawyers do that let's see what they do, said Ronny Dworkin. When we analyse cases (the famous case Riggs v Palmer, easy to find). In Riggs v Palmer the court argued that a murderer cannot claim the inheriitance of the person he murdered. However, there was nothing in the written law that prevented him from doing so. In fact the law of inheritance was crystal clear on the issue. The courts invoked a legal principle: "one should not legally benefit from one's own crimes" and withheld the inheritance. If we hold on to the principe of ciceronianus that law is law the courts have acted unlawfully. Did they? even positivists are hard pressed here. Dworkin argued that when law is as lawyers do we have to accept legal principles as a part of law.
Then we get a number of problems back. Where do these principles come from? Dworkin was adamant in saying that they are legal rpinciples, not just any old principle some judge thought up somewhere will do. They must have a certain legal basis as a kind of foundation of our legal system. However they might well be unwritten. So there goes the principle 'law is law', at least now we have 'law is law including unwritten legal principles'. and how do we recognise those principles and what is the basis for them? It is clear that a legal principle is not a rule, if a rule is not adhered to, than it is not a rule. But the principle "one should not benefit from one's own crime" is not always adhered to, not even by law itself. The thief becomes the owner of a good at some point, legitiised by the statute of limitations, so here the law itself facilitates crime! So not, it is not a rule. Other than rules, which do not need a basis in morality, some sort of morality does gird legal principles. How do we know and recognise a legal principle? Well because we know the foundations of our law, but these are not chosen willy nilly. They have a basis... well morality and justice. And that complicates matters. If unrwitten stuff is part of law and f this unwritten stuff has its basis not in the commands of the sovereign or the rule of recognition but in morality than the boundary between law and morality is blurred and the saying the existence of law is independent of morality becomes questionable.
So, positivism does not provide a good account of where legitimacy comes from. It leaves it open to all kinds of objections. At best its origins are ineffable and at worst it derives its normative force by virtue of being law itself and than we get the famous objections against national socialist law for instance. So no, austin's position is by no means totally accepted at least not in the continental world.
Quoting Ciceronianus the White
No, but all of these had their influence of the philosophical history of ideas on law and all of those should be remembered for the greatness of their contribution. Aristotle coined a fundamental definition of justice, Hegel waged debates with Von Savigny, the greatest lawyer of the 19th century, Hobbes might well have influenced Austin's command theory of law, Rousseau is still important for social contract theory and even Aquinas famous saying 'lex iniusta no est lex' has adherents. I actually might even think it is true. Has the national socialist law against calling Hitler a mass murderer ever been law? Yes says Hart, no says Radbruch. It is important because if we recognise it as law how can we ask the one that obeys that law and reports an offender to the police after which he is shot, not to obey it? Or should he have known that this rule lacks the character of law? That it has no normative force because it violates principles of justice everyone knows? I have not decided on m position yet, but it certainly is not positivism hook line and sinker...
That much is obvious. The positive law doesn't claim to be necessarily moral. Natural law does. In fact, natural law is defined as that which is moral. The quibble, after these 8 pages, appears to be how comfortable one is in claiming that natural law is law or whether it's not law. I think of natural law as law because that's what it's called. Apparently others insist that only positive law is law, which makes me wonder what the word "positive" means, considering "positive law" and "law" seem to be the same thing.
No, we can use the definitions found in the dictionary, as set forth by Hanover, above.
Quoting tim wood
I was trying to find the substance of Ciceronianus the White's point, as just explained to you.
Quoting tim wood
Yes. Someone was courteous enough to link the summary of my point on page six of this thread but I'll need a little schooling to figure out how to do that. I just assumed you'd been reading the thread and saw that.
Quoting tim wood
It's reasoned. See above.
Quoting tim wood
Asked and answered.
Quoting tim wood
All that mere law has yet to address in it's historical march toward codifying Natural Law.
Quoting tim wood
You've got it backwards. Mere law is trying to address Natural Law through the use of prohibitions, acknowledgements, eliminations, etc. That's what distinguishes it from Natural Law.
So natural law isn't law.
Quoting Hanover
So natural law is law.
Hmm.
There certainly isn't a consensus here, hey.
I do understand that nature does not promulgate rules, but it does operate in a predictable way, consistent with what we call the laws of physics. That is an example of the word "law' being used in way that differs from the confined way you insist, which is in a way that requires human processes. Another fine example of the word "law" being used in a way that violates your preference is in the phrase "natural law."
Historically, there is consensus. The simple dictionary definition need not be appealed to, though it is clearly there. Then there is the debates of our Founding Fathers, as well as the philosophical discourse during the Enlightenment. The term "Natural Law" has been around since Christ was a Corporal and, I suspect, it was cited as authority for the first written law. Do I have proof of the latter? No, but without it, the law is, by definition, unreasonable. That renders it non-law to those who demand reason.
No. Natural Law is Natural Law. The law is man's effort to reduce Natural Law to writing.
I'll go get the popcorn.
Thank you, Toby, for introducing some clarity.
What do you make of appeals to "our founding fathers"? For example, Quoting James Riley
I don't imagine they hold much sway in your part of the world, not mine.
I ask because I assume natural law would be neither so parochial nor paternal.
I think we (Hanover and I) are in accord. So far, I've not seen much daylight between us. There are some spots where we could make an argument but a lot of that stems from our unique use of terms in this thread, separating law law (writing) from Natural Law.
Our (U.S.) Founding Fathers hold much sway. Sure, the courts try to stay within the four corners of an organic document or statute, but whenever there is ambiguity or conflict, they often hearken back. But reading the Federalist Papers and other docs will point up Natural Law. One need only look to the 9th and 10th Amendment. What could they have been referring to? Blackstone? I think not.
Too presumptive.
So, the law provided that someone who murdered X was entitled to his X's estate?
I don't know the case referred to. I don't think a legal positivist would be obliged to contend that the law, once adopted, can never change, however, or cannot be interpreted. Where I practice, those who murder a decedent cannot share in his/her estate by statute.
If there was nothing expressly prohibiting the court from ruling as it did, then it seems to me there was nothing prohibiting it from interpreting the law (statute) in such a fashion, e.g., that it would not have an absurd result--one in which a murderer is entitled to the estate of the one he murdered.
Regardless, though I haven't maintained that morals and moral principles are never employed in making or interpreting, or enforcing laws. My only point is that doesn't make morals or moral principles law.
How so? I don't know where you live, but I qualified it to the U.S. If you are an American Citizen and you know of someone else who enacted the Declaration of Independence, the Articles of Confederation, the Constitution and the Bill of Rights, please advise.
Sure it does. Once a moral principle is employed in making a law it makes it a law.
So, Natural law is a set of moral principles. The law is not. Right?
Wrong. While Natural Law is a set of moral principles, so is the law. The law is just an effort to reduce Natural Law to writing.
So, a moral principle becomes a law in that case?
It tries. Sometimes it succeeds. Often it must be tweeked and refined as it keeps running head long into Natural Law. Like the example above: 1. X can leave his estate to Y. It is law! 2. But wait! Y killed X! That don't sound right! Okay, 3. X can leave his estate to Y but Y is not entitled to it if he kills X. And on and on and on. I long ago tried to use the example of homicide and all the variant levels, defenses and punishments, each one of which is the result of a tweek as it arose and some judge, legislature, attorney, people said "that ain't right!"
It's my understanding that we used to be able to go outside and jump up to the moon. Then Newton came along, wrote down the law of gravity, and hence forth we could not longer jump to the moon.
No one said laws don't exist, but if your gut tells you one should and it doesn't, I hope you bring that up. Maybe you'll have a case of first impression, and you can help make some new law, and bring some justice into a court of law. I guess that would be novel.
Now we’re getting somewhere. Once a moral principle is employed in making a law it makes it a MORAL law. Once a logical principle is employed in making a law it makes it a LOGICAL law. Once a civic principle is employed in making a law it makes it a CIVIL law. Pick a domain, find a principle, make a law grounded by it.
All laws of kind have principles from which they are made laws of that kind. It follows there must be at least one principle that makes any law a law, or that makes any law, lawful. Which succinctly quantifies the thread title...a law is a law is a law.
See page 1.
That sounds reasonable to me. One word that covers all principles is "reason." Reason was used to arrive at the law, regardless of the type of, but still based upon principle, and that is the reason for it.
Quoting Mww
That too sounds reasonable. But "qualifies" sounds better, to me, than "quantifies." Thus, the law is the law is the law but the fact it is a law does not provide the reason for it's invocation.
Yeah....I used quantifies only because the thread title showed a plurality of single instances.
I agree any single law is qualified by whichever principle reason assigns as its ground. And just as reason covers all principles, universality and necessity, as principles, cover all laws.
Wel Cic, where do you practice? It is rather odd you do not know the case Riggs v. Palmer when writing on the positivism / anti-positivism debate. But anyway, the case is an old case, at the end of the 19th century. Probably the law has changed and no, there is nothing in positivism that says the law cannot change. However, in the state of New York at the time there was no law that stated that one cannot inherit in case you murdered the testator. Elmer Palmer did to prevent him to change his will. But in absence of a law stating otherwise should not normal inheritance law apply? And would that not mean the wording of the will, validly drafted, should be executed as is?
It is not a question of interpretation. The law is clear. There is no textual difficulty. So the court appealed to other, possibly higher principles of law. But when you bluntly state "law is law" you should at least clarify whether that includes legal principles or not and if so whence do they derive their legal force.
Quoting Ciceronianus the White
Absurd absurd? so law is law unless it leads to absurd results? Comes dangerously close to natural law Ciceronianus. It is not that judges are prohibited to rule in way x or way y. the question is, does their ruling stand up to legal scrutiny? If textual interprretation is the only method of interpretation then their position collapses, because the law on inheritance is clear. Were they allowed? Yes, but it rpoves Dworin's point that there is more to law than what positivists hold law to be.
Quoting Ciceronianus the White
Well you will have to. There was no question of unclarity in the law that should be interpreted, there was no law to be made but only a case to be judged and there was no question of enforcement either. so according to you the courts used non law to set aside the law and still took a legally valid decision? That is definitely odd. Then non law would be law and law would in your view be non-law. That is definitely absurd. So much more consistent it is to accept that these principles are part of law. As is the usual interpretation actually.
Quoting Banno
It is an oddity of US law. No we never appeal to 'our founding fathers', in fact the Netherlands does not have constitutional review ;) But in the US these people are so revered that what they once wrote is considered to be crucial to interpret current situations. There are huge debates between the originalists who state that the constitution should be interpreted as in light of its original intention and the evolutionists who hold that the constitution should be interpreted as a 'living document', so in light of current times. We do have legislative historical interpretation though where we try to find out what the legislative branch intended with a certain law, but never to the degree of 'originalism'.
And wiith legal principles... don't forget legal principles. They exist and they might well make you win a case ;)
You're right of course. I should have known that it's impossible to comment intelligently on legal positivism without being familiar with the case of Riggs v. Palmer. And no doubt the jurisdiction in which I practice isn't one worthy of recognition, not really. I'll retire from the field with what dignity I have left.
Cool.
I did not mean to be offensive Ciceronianus and never did I imply that your jurisdiction is not worthy of recognition. I practice in the Netherlands and there is no doubt in my mind that your jurisdiction holds more sway than the Amsterdam district court. I do find it odd that you did not know the case. I was sure you would since your original post displayed much knowledge on the history of positivism. Dworkin's attack against it is based on the case and this attack (not the case of course) raises very difficult questions for this doctrine. So yes... I was genuinely puzzled as I expected it to be known.
Even natural law is not totally out of the window these days. Sure the idea of a "heaven of legal concepts in the sky" does not have many adherents, but trouble arises when we try to justify universal human rights for instance. "We hold these rights to be self evident:" is a natural law formulation. The natural law thesis in its thinnest form says that there are essential features of any legal rule or system without which this rule is not law. In other words, are there regulations thinkable that even though they are promulgated in the right way, following the right procedures should still not count as law. Now I think we would all agree that a law that tells you to open and close the door simultaneously, even if promulgated in the right way, poses certain problems because it is impossible to comply with. Hart would say this is simply bad law and he might have a point. However if you also hold the view that law is more than mere rambling because it claims obedience than this rule might well lack that claim since it is impossible to adhere to.
Now this is academic but there are legal cases, for instance the case of the grudge informer http://www.law.nyu.edu/sites/default/files/upload_documents/The_Grudge_Informer_Case_Revisited.pdf
where the question whether certain rules are law or not comes to the fore.
If there's a question of interpretation, a judge will try to do so within the 'spirit of the law', is that right? He'll interpreted it on the basis of a reasonable assessment of what that particular law set out to achieve. Say a law banning knives left some clearly dangerous use ambiguous, the judgement is likely to adopt the least dangerous interpretation assuming that the intent of the law was to protect people rather than, say, harm knife manufacturing.
Could not, then, the same argument be made for the body of law as a whole? That, where there's uncertainty, or conflict, the overall purposes of the body of law as a whole is invoked to justify a particular decision.
This would rescue positivism because the overall purposes of the body of law as a whole need not be aligned with any external morality.
It could simply be seen as an effort to maintain the maximum consistency, as is already the case if two laws accidentally contradict one another.
Edit - So in your German case, the aberrant law need not be overrode because it conflicts with natural law, but simply because it's so obviously opposed to the general intent of all other laws.
This comment really deprives this debate of any significance. In trying to determine what this thread intends to answer, I've arrived at that following possibilities:
1. Whether there are principles of morality that are employed in legal interpretation?
2. Whether the US system relies upon moral principles when it interprets law?
3. Whether there are moral principles that exist that are not human creations?
4. Should there be a legal system that uses morality when interpreting some laws?
5. Are natural laws properly defined in English as laws?
As to #1, you say yes, although you previously seemed to deny such occurred in the contemporary US system. It is obvious, however, that other systems do directly question the morality of a law when deciding whether to uphold it.
As to #2, you say yes sometimes such occurs in the US.
As to #3, I believe you say yes. If you said no, then this debate would become one of whether moral realism exists and it would more directly challenge the existence of natural law in a philosophical way. From your posts, I don't see this as your concern.
As to #4, it's not clear what you think, but I'm guessing that doesn't matter to you. The only discussion as to this point is where you pointed to the lack of evidence of in your practice that US courts rely upon morality when ruling. I've noted the irrelevance of those responses to this question.
As to #5, you say no, and this seems to be the main point you wish to show in this discussion. The problem with this question is that it has no philosophical significance, it's pedantic, and it demands a rigid prescriptive definitional scheme, where we turn to preset dictionary definitions to understand words as opposed to reference to nuanced usages and context. The real answer to this question is the same as when you ask the definition of most any word, which is that words tend to be defined different ways in different contexts. We could have had the same conversation about "cups" or "chickens" and drawn the same conclusion and we wouldn't have been so burdened by all the issues related to natural law versus positivism.
Anywho, the reason this natural law debate matters, imho, is because it challenges the role of governments. Do governments create the most fundamental laws we hold so dear, or is the role of government to defend the rights we already have?. That is, do governments create the laws we refer to as "rights," or is the government subservient to the rights we have regardless of what a legislature decides? If we accept the latter explanation, then we stand on firm ground when we defy government oppression of our rights and we declare such systems illegitimate on their face.
Okay.
I don't think anything can rescue positivism. Reference to the body of the law as a whole, or the spirit, or whatever you want to call it, is reference back to Natural Law. We generally look to our organic documents for that, and they themselves are founded upon reason and what we "feel" is right.
I've been a lawyer my entire adult life--or, at least, what passes for a lawyer in the uncouth, rude, semi-savage region in which I practice. It may surprise you to learn I've appeared not only in what we call circuit or county courts, but in the appellate courts of this state. I've even, from time to time, put on my best suit, hitched horses to my wagon and traveled to the big cities to appear before the Federal District and Circuit Courts which hold sway here, where one might spend a lifetime searching for a spittoon and not find one. Truth to tell, I've even litigated matters involving constitutional and civil rights issues over the years.
I tell this sad story in the hope of explaining that I view the law as I think a practicing lawyer does; as a vast, growing, sometimes changing, mass of statutes, regulations, court decisions and decisions of administrative tribunals, enforcement mechanisms, penalties and civil liabilities the interaction with which rarely, if ever, involves what I consider moral or ethical questions. I therefore sympathize with philosophies of law which study the operation of the law as a working system, not as something which must comport with or must or does rely upon "true law" or "higher law" or "natural law." I find speculation along such lines to be largely irrelevant to the operation of the law, frankly, and its operation and its impact on our lives would seem to me to be its primary significance. How the law developed seems to me to be a question for historians; why we make laws may be something the social sciences can address.
So, when it comes to the relationship between morality and the law, I tend towards the position taken, for example, by O.W. Holmes, Jr. in The Path of the Law. Holmes wasn't exactly a legal positivist, and is considered to be the father of American Legal Realism, but the view of legal positivism regarding morality and the law is similar. I tend toward that position based in part at least on my experience of clients who want to litigate expensively and endlessly in pursuit of justice, or the right or good, or over matters of principle, although warned that the result won't necessarily be just, right or good, because courts are courts of law, not justice, as Holmes once noted to someone appearing before him.
There will be instances where moral concerns motivate legislators or judges. I would maintain, though, that the law has expanded so much since the days in which Riggs v. Palmer was decided, and now impacts so many aspects of life, business, and government, that at least as far as judges are concerned, those considerations only rarely form the basis of a decision. Recourse may be made to such considerations in the absence of law, but there's so much law now that this is less and less necessary.
I've now read Riggs v. Palmer and am, of course, a better and wiser person as a result. But I haven't been so impressed by it that I'm persuaded that legal positivism (as I understand it) has been refuted, or even brought into question. It is after all a single decision, and I'd like to think that philosophers of law wouldn't consider it determinative, or even representative of the law as a system on that basis. Its holding was based on several grounds, including what I think are well established rules that in construing legislation the end in view is to determine the intent of the legislature, and that in construing wills courts should determine and follow the intent of the testator. Interestingly, this maxim regarding the interpretation of wills is such that the testator's intent is to be followed even if that intent is contrary to the "natural objects of his bounty" as I think the phrase is. So, courts will enforce wills even if they result in natural heirs receiving nothing, and the estate distributed to a local strip club, for example. I'm uncertain whether that rule has its basis in natural law.
So, one of the questions raised was whether, since the law of probate is intended to promote the orderly conveyance of property of a decedent in accordance with a will, it would be the intent of the legislature which adopted the governing statutes that a decedent's murderer would receive the estate. That of course would depend on the intent of the testator. Would a testator intend that his/her murderer receive the estate? Probably not. Is that judgment dependent on natural, or true, or higher law? The court then proceeds to consider matters more properly defined as based in morality.
I don't know how much it matters to the law, as an operating system, why laws are generally obeyed. I think it's more likely people obey them, when they do, because they believe the consequences of violating them--potential civil damages, criminal penalties, costs of defense--make it sensible to do so, not because they believe them to be based on a "higher law." But again, I think the "higher law" whatever it may be is less and less a factor as the law grows, and other considerations, economic and social play a greater part in the functioning of the legal system.
No it isn't, or at least not necessarily.
Say laws specify a passcode for a door. The first law says the passcode for door A must be 2435, another law then says the passcode for door B must be 54678, a third law says the passcode for door C must be 436.
If a fourth law comes along to say the passcode for door D must be "dancing bananas on a stick", and then you turn around three times and touch your nose, it's very easy to see that this law is not doing the same sort of thing as the others. It stands out.
At no time was there an overriding rule about what passcodes should be. There's no moral element. The first law could have been anything. But once a few have been written a pattern is established, purely by their existence, which new laws can be judged against.
No 'natural law' of passcodes is required.
LOL! You may find this surprising, but I agree with everything you just said. I guess our only disagreement lies in the distinction between what is (you) and what should be (me). I always found man's purpose was aspirational and based on ideals. Sure, all that comes down to earth, hard, in the work-a-day world of the practice of law. But it is not a distinction between attorneys and philosophers. Rather, it is a distinction between the drudgery of the guild, and those who believe the guild has fallen off the search for truth and justice.
I remember telling clients who wanted to fight on principle that principle costs money. I hated to say that, but it's true. Your practice sounds similar to mine, though you have been at it longer. I divided my time equally from state and federal administrative agencies, Tribal Courts, State municipal courts up to the State Supreme Court and Federal District Court. When I wore what I called a white hat, I lived hand to mouth. When I wore a black hat, the cash came rolling in but I couldn't sleep at night. Some members of the guild don't have that problem.
It is if there is reason.
Your example is flip and references no reason for any selection. That makes it arbitrary and capricious and subject to the legitimate refusal to be recognize it as law.
Well then your counter begs the question. It becomes "Reference to the body of the law as a whole... is reference back to Natural Law...if it is a reference back to natural law". So all you're saying is that you think there's a natural law that all laws refer back to but you've got nothing by way of argument from necessity to support that guess.
Quoting James Riley
Again, if I referenced a universal external reason for the selection I'd be begging the question. The issue at had is whether laws result from natural law. You can't argue that they do from a position of assuming they do.
Quoting James Riley
What arbiter of 'legitimate' would normally restrain someone from refusing to recognise a law as law?
Only laws based on reason. If I rule by fiat, that is no reason, and is therefor no law.
Quoting Isaac
No, you would not. You'd be using reason in support of your law.
Quoting Isaac
It does. If it does not, then it lacks reason and is therefor not law.
Quoting Isaac
I don't assume they do. I demand they reason to be law.
Quoting Isaac
Natural law.
Really? Sometimes I marvel at my ability to misunderstand people.
I've always wanted to practice before a Tribal Court. I don't know why. Probably because it's something I've never done.
So you're basically saying that if a law does not derive from this Natural Law™, then you refuse to acknowledge it as a law?
So are there any laws which you currently refuse to acknowledge on those grounds? Or is it the case that by astonishing good fortune, despite hundreds of changes of government, revolution, civil war, slavery, despotism, and corruption all laws just so happen to have nonetheless derived from this source? Phew!
Again, I don't know how many of you people actually read a thread, but that horse has been beat to death. Asked and answered.
Quoting Isaac
There are many, but I'm afraid that if I delineate a single one, eyes will be taken off the ball. We'll end up going down a rabbit hole regarding whether Natural Law or the law is right or wrong or good or bad in a given instance. That has already been hashed out as irrelevant.
Quoting Isaac
Asked and answered.
So you are/were a practising lawyer and you refuse to acknowledge certain laws as law. How do you handle that when defending a client, for example, if some facet of a law could absolve him but it's one that you refuse to acknowledge as a law?
Quoting James Riley
A link then perhaps, page number, quick summary...? I don't know how the site is currently fixed, but I don't think we're running that short on space just yet.
True story: My partner was arguing before a tribal judge (he was a lay judge, as often happens). The judge had the robe and all the trappings, but he looked Indian, and had the long braids, and all. My partner argues laches. The judge leaned over the bench, looking down at my partner and said "We don't recognized laches."
I always wanted to get one of the character painters you see at carnivals and whatnot to paint that scene and then below it the caption: "LACHES! LACHES! We don't know no stinking LACHES!"
Anyway, I found Tribal Court to be little different than any other court. Maybe a little less "sophisticated" and more arbitrary, but only more honest in that regard.
Operative word is "were."
Quoting Isaac
It is not site that is short on space. I'm just short on the desire to go fetch your reading for you or regurgitate it here. I don't mean to be insulting, but really, catch yourself up.
So when you were a lawyer you thought differently about law?
I've read the whole thread. It's not about catching up, I just can't see where you've answered that question.
No. I thought exactly the same then as I do now. That is why I left. I loved law school, because it was all theoretical and aspirational and foundational. But I should have done the clinics and whatnot.
Oaky Dokey.
I can't speak to what you or others think this thread is intended to answer, or what it's about, but I think the OP raised what I wanted to address. First I noted my agreement with this statement made by John Austin:
The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
Then I made this statement, and asked what others thought of it:
The belief that the law must conform to an "assumed standard" of some kind, and isn't the law if it does not, ignores the law; it doesn't explain it. It leads to a fundamental ignorance of the nature of the law and its operation.
I remain convinced that what Austin said, and what I claimed in the OP, are correct.
And that is our enquiry.
Quoting Ciceronianus the White
It doesn't ignore the law (one can't ignore a stick across the back), it just refuses to accept it as law (because it fails to conform to an assumed standard).
Quoting Ciceronianus the White
It fully understands the nature of the law (pretense) and it's operation (stick).
That's a position which--I think--is similar to the position taken by the client who goes to court insisting that justice be done, even when told that it may not be forthcoming, only to find that what he/she thinks is a just result makes no difference to what takes place. The client may find the result is not right, that if "real law" applied the result would be otherwise. But it makes no difference to what actually is decided or how it's decided, except possibly in very rare cases. I think it's futile to insist on the "reality" of that which makes no difference.
It's oft been said that ideals and aspirations are futile. This is where man's hopes and dreams run into "might makes right" in the mind of might. That is why I agreed with your post on the day-to-day practice of law. Any work is much easier when one is allowed to let themselves off the hook. The attorney gets to argue that he was merely engaged in the zealous advocacy of his client's interest. The investment banker gets to argue his fiduciary responsibility to his clients. Hell, soldiers don't even get that kind of slack. "Fog of war" only gets you so far. But money legislates such exemptions for the professions. Nevertheless, just because Natural Law is often perverted by the law does not mean it does not exist.
What would ideally be a law, or what we hope the law and legal systems would be, are different from what is the law and what the legal system is, here and now. I don't think this can reasonably be disputed, and I think that is in essence all Austin and Ciceronianus said in the OP.
I would not only agree, but I would say that rests in competition for understatement of the millennium. :grin:
Quoting Ciceronianus the White
I thought they were negating an assumed standard. That was the rub.
Well, it took us a while, but we got there eventually.
Well, we still have the rub, but there's no sense beating on that poor horse. Best to you, counselor.
I take this to mean that there are moral laws and man made laws and whether the man made one exists is not dependent upon whether it comports with the moral law. I think we both agree with that. The confusion only arises when we use the unmodified term "law" and suggest that "man made law" and "law" are necessarily synonymous. That seems to be the entire debate.Quoting Ciceronianus the WhiteMy response has been that you could have a legal system where that is not the case. I'd think the law within the limits of the Vatican are the sort that demand an analysis of a higher power. But to both yours and my experience within the confines of our system, the law is not stricken or claimed null and void simply because it violates the rules of nature. I don't think the same holds true within theocracies.
And to you. I suspect we'll dispute over some topic again. That's what lawyers do, after all; perhaps even former lawyers.
It's possible I'm too inflexible when it comes to the use of the word "law." I may be too concerned that unhelpful confusion will result from what I think of as its misuse. You mentioned the "laws of physics." That's a common use of the word, and I shouldn't disregard that fact. I think of that as something of a metaphor, though. Those "laws" are readily definable, though, and even indisputable. I don't think that's the case with "natural law" or "higher law." I have the same concern regarding the use of the word "rights." I think we know what legal rights are, or can at least identify them from the positive law. I don't think that's the case with "natural rights." Here in the U.S. it seems some of us think they have the "right" to do what they please. I think we tend to think that what we believe are our rights are the same thing as legal rights, when they're not. Our "right to free speech" for example.
I like the old saw: "A town too small to support a lawyer can always support two."