• Ciceronianus the White
    1.6k
    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!
  • 180 Proof
    3.1k
    Interesting. I'll need to give the OP some more thought before I make a fool of myself needlessly. At this point all I can offer are my preferences: (a) against Natural Law; (b) against "value-free" jurisprudence / legistlation; (c) for Rawl's difference principle. (To be continued.)
  • James Riley
    314
    The mere thought of Hegel being an attorney inspires terror.Ciceronianus the White

    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.
  • Zophie
    176
    A value system which recognizes that it is just a value system is at least an honest value system.
  • Valentinus
    1.2k
    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.Ciceronianus the White

    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.
  • Banno
    11.6k
    The law has nothing to do with morality...

    isn't that obvious?

    Any correspondence between the Law and the Good is surely coincidental...
  • javi2541997
    595
    The law has nothing to do with morality...

    isn't that obvious?
    Banno

    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].
  • Isaac
    4.2k
    No. It is not. I guess law is literally the reinforcement of morality...javi2541997

    How then? By which I mean that if law is the reinforcement of morality, what is the mechanism by which that connection is made?
  • javi2541997
    595
    what is the mechanism by which that connection is made?Isaac

    The progressive development of natural law into judicial moralism. Thus, the purpose of searching with jurisprudence the most morality solution to the law dilemmas.

    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 Kołakowski (1927-2009), "Crime and Punishment," Is God Happy? Selected Essays [Basic Books, 2013, p.236]


    Lex mala, lex nulla -- A bad law is no law.
  • 180 Proof
    3.1k
    An unjust law is no law at all" ["Letter from a Birmingham Jail," 1963; Lex injusta non est lex].javi2541997
    :fire:
    Lex mala, lex nulla -- A bad law is no law.javi2541997
    :100:
  • unenlightened
    5.6k
    I say: There is no Law but the Law!Ciceronianus the White

    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.
  • god must be atheist
    2.7k
    Law is a tool of society. Mostly created by the ruling party (kings, pharaohs, etc. until democracy, when the People, via their representatives, create now the laws).

    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).
  • god must be atheist
    2.7k
    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.unenlightened

    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.
  • baker
    1k
    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?
    Ciceronianus the White
    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.

    By which I mean that if law is the reinforcement of morality, what is the mechanism by which that connection is made?Isaac
    When people believe that might makes right.
  • Metaphysician Undercover
    8.5k
    I say: There is no Law but the Law!Ciceronianus the White

    What does "the Law" here refer to, other than an assumed standard?
  • Mww
    2.3k
    I say: There is no Law but the Law!Ciceronianus the White

    Agreed, if you mean there must be the pure conception of law before there can be instances 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.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.
  • Hanover
    6.1k
    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.Ciceronianus the White

    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?
  • Isaac
    4.2k
    the purpose of searching with jurisprudence the most morality solution to the law dilemmas.javi2541997

    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...
  • Hanover
    6.1k
    The law has nothing to do with morality...

    isn't that obvious?

    Any correspondence between the Law and the Good is surely coincidental...
    Banno

    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.
  • javi2541997
    595


    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.
  • Ciceronianus the White
    1.6k

    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."
  • Ciceronianus the White
    1.6k
    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.Valentinus

    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.
  • Ciceronianus the White
    1.6k
    isn't that obvious?Banno

    It is to learned, intelligent, wise and reasonable people, yes. But there are distressingly few of us.
  • Valentinus
    1.2k

    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.
  • Ciceronianus the White
    1.6k
    Men do not make laws. They do but discover them.javi2541997

    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.
  • ernest meyer
    100


    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.'
  • Ciceronianus the White
    1.6k
    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.javi2541997

    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.
  • Ciceronianus the White
    1.6k


    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.
  • Ciceronianus the White
    1.6k
    The law can change, and then there is the old law and the new law.unenlightened

    The law can and often should change. Once it is the law, though, it is the law regardless of its wisdom or morality.
    To speak of law without mention of the power of enforcement seems to me to miss something essential.unenlightened

    I agree.
  • Ciceronianus the White
    1.6k
    What does "the Law" here refer to, other than an assumed standard?Metaphysician Undercover

    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.
  • Ciceronianus the White
    1.6k
    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.Mww

    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."
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