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Natural Law or Legal Positivism?

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Eric080 Posted: Mon, Sep 12 2011 3:34 PM

Which side are you on when it comes to the question of "what is law"?  Would you agree that an "unjust law is no law at all" or would you think that Hitler's decrees technically function as law although be it insane and unjust?

 

Personally, I only see that individuals act and that a state agent stealing from you is no different in practice than a bully stealing from you with the key exception being perceived ideological legitimacy of the people around you.  One can still recognize this and be a legal positivist (or sympathetic to the natural/moral law) in the sense that we seem to know what we mean when we refer to North Korea having "laws."  Maybe you could define law as being the human execution of what most of us consider to be the natural law and it could either pass or fail the legitimacy test when compared to the natural law.

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Clayton replied on Mon, Sep 12 2011 4:23 PM

Which side are you on when it comes to the question of "what is law"?  Would you agree that an "unjust law is no law at all" or would you think that Hitler's decrees technically function as law although be it insane and unjust?

Well, I think there are two separate questions here. The first is "what do people generally mean when they use the word 'law'?" and the second is "given a technical definition of what law is, how do we account for it, what function does it serve?" In the first case, I think that the word law is very broad and vague. Some people include theological ideas within the umbrella of law (for example, the famous Ten Commandments) but the prevailing meaning in common use is clearly "law is whatever legislatures legislate and whatever government courts apply and interpret". In the case of dictators, I think most people in the developed world recognize that there is a fundamental legitimacy problem - why should the dictator's dictates be law, what makes them normative?

In the second case, I think the correct technical definition of law is as it concerns the resolution of disputes. My view (as expounded in the thread "A Praxeological Account of Law") is that the justice/injustice of laws cannot meaningfully be evaluated by an individual's ethical views. Rather, the legitimacy of laws derives from their utility to the individuals involved in a dispute (not society, the view of utilitarianism). This utility cannot be rationally calculated absent freedom in dispute-resolution (disputants are free to choose how to resolve their own disputes as they see fit). In my view, increasingly harmonious social order is an unintended by-product of the process of free resolution of disputes. Law (rightly understood) is the result of human action but not of human design.

Legislation and statutory law are strictly aberrant in my view - that is, they are the result of a stunting of the natural process of law through the use of threats and force in order to permit the central-planning of law. The primary impetus behind this is to prevent the act of taxation from being subjected to meaningful legal challenge, leaving the only recourse of a subject populace to be all-out violent revolution. In the process, social order is degraded. Moral philosophy also suffers as the rationality of genuine dispute-resolution becomes more and more removed from everyday life, depriving moral philosophers of the reality check of law formed on the basis of the resolution of real disputes.

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MaikU replied on Mon, Sep 12 2011 4:47 PM

I would say that if law isn't universalizible (if that's correct word) then it isn't law at all..

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(english is not my native language, sorry for grammar.)

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Clayton replied on Mon, Sep 12 2011 5:15 PM

I would say that if law isn't universalizible (if that's correct word) then it isn't law at all..

While I completely agree with the spirit of this (particularly as it applies to the State and its private apparatus, the Establishment), I don't think it stands up to scrutiny. Consider forcible application of medical procedure to a very young child who is old enough to yell and scream "No! Stop! I don't want it!" (for example, applying ice packs to a child with a delusional fever or applying an enema to a child with a stomach sickness.) I think the common law and even modern statutory law are unanimous that parents are within their rights to forcibly apply medical procedures on their children, even over their most strenuous protests. How can that possibly be universalized? The fact is that the peculiarities of the human condition require "exception clauses" to any proposed universalizable body of rules. The key is to recognize the crucial importance of limiting such exception clauses and preventing their abuse. I hold that this cannot be done through any centrally-planned method (i.e. statutory law).

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Clayton:
The key is to recognize the crucial importance of limiting such exception clauses and preventing their abuse.
Why do you say that? 

There is nothing wrong with having exceptions to rules.  So long as people consent to that rule-book all is kosher. 

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Clayton replied on Mon, Sep 12 2011 6:37 PM

So long as people consent to that rule-book all is kosher.

What rule book?

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James replied on Tue, Sep 13 2011 7:17 AM

While I completely agree with the spirit of this (particularly as it applies to the State and its private apparatus, the Establishment), I don't think it stands up to scrutiny. Consider forcible application of medical procedure to a very young child who is old enough to yell and scream "No! Stop! I don't want it!" (for example, applying ice packs to a child with a delusional fever or applying an enema to a child with a stomach sickness.) I think the common law and even modern statutory law are unanimous that parents are within their rights to forcibly apply medical procedures on their children, even over their most strenuous protests. How can that possibly be universalized? The fact is that the peculiarities of the human condition require "exception clauses" to any proposed universalizable body of rules. The key is to recognize the crucial importance of limiting such exception clauses and preventing their abuse. I hold that this cannot be done through any centrally-planned method (i.e. statutory law).

 
I don't think it hinges on age directly.  Maybe it's not unlikely with a young person, but one should be careful with that sort of reasoning.  If anyone were delerious from a severe medical emergency, you might be justified giving them treatment despite protests at the time.  Maybe an adult is delerious and hallucinating from a snake-bite, and thinks you're the devil come to take his soul...  You should still give him the anti-venom.
 
I don't think there's some sort of grand exception clause to the NAP, it's more like there are situations where people are delerious or hallucinating or whatever the case may be - perhaps simply absent or unconscious - and one can feel safe enough that their "violation" of the NAP at the present moment will be ratified as sound later, once the person calms down, as it were.
 
Consider a situation where your neighbour's (who is a friend of yours) house is burning down, and they're away.  You don't have explicit permission to break into their property with a fire extinguisher to try to save some of their more indispensible or uninsured property, and technically they could turn around and say that you were breaking-and-entering, but seriously, it's so likely that they're going to ratify your 'permission' in hindsight and consider your actions a favour to them that one might well feel justified kicking down their front door anyway.  That's not to say that on principle, one can go around kicking down people's doors without permission.
 
You certainly can't say that, as a rule, parents are allowed to do anything to children under the excuse that it's medical treatment, now you see that's going to result in absurdity very quickly...  What I think has to happen is that the parents' behaviour has to be given permission from the children in hindsight, just like you'd expect permission-in-hindsight from any of these situations where you might be violating the NAP at the time, but you feel that it will be seen as justifiable later on.
 
If you're going to do something like this, it's rather a gamble that the person you're 'violating' will ratify your actions later.  Otherwise, I think it has to be considered a violation of the NAP just like any other, utility being the subjective thing that it is.
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Clayton:
What rule book?
Sorry.  I was speaking metaphorically.  I should have more accurately said:  "So long as people consent to the rule and its exceptions, there is nothing wrong with having exceptions to rules that comprise any proposed universalizable body of rules." 

I see no reason why limiting exceptions is important as you suggest.  Can you explain why?

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Clayton replied on Tue, Sep 13 2011 6:13 PM

@Charles:

NAP: "The use of force is unjustified unless it is used in response to aggression (unjustifiable initiation of force)." 

NAP+: "The use of force is unjustified unless it is used in response to aggression (unjustifiable initiation of force) except if your name is Barack Obama and you are the President of the United States, then it's OK, you can bomb people or do whatever the hell you like because you've been 'duly elected' to the office of Emperor of the Earth."

See where I'm going?

If you start with NAP as your universal rule and admit exceptions, then what you're left with is no NAP at all.

I also was speaking metaphorically when speaking of a body of rules. I do not think that law - rightly understood - is a set of rules at all. The law is not a set of rules, it is a body of knowledge regarding the resolution of disputes, particularly as it arises out of the specialized occupation of arbitration (division-of-labor in dispute-resolution).

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Say what you will about the deficiency positivism, or much of philosophy since the Enlightenment (including Rothabrd), but positivism is probably 100% correct as far as I can discrern in regrards to aesthetics, law, morality and most other things we should recognize as very obviously  nonesensical...and perhaps even best easily explained via custom / evolutionary narrative - if it needs to be spoken of at all, which it probably doesn't in most cases.

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Legal positivism is the theory that law is created by an authority rather than evolved over time.

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If you do not recognize evolution as "that which asserts itself via it's own authority at any given place or time", is to misunderstand neo-evolutionary thought, and most importantly for our purposes the nature of subjectivism and intersubjective relations within such an envronment.  There is no purpose, progress, pertinent history (as a non logical structure), or any of that nonsense in evolutionary thinking - merely what is and how it exists within an existing logical structure.

 

Mises and maybe even Lachmann seemed to understand this. It is possible Hayek and Rothbard, from what I can gather, did not - they seemed more "traditionally" conservative in this regard (things evolving "naturally and within good order over time", as opposed to the more correct Enlightment styled radical liberalism that Mises spoke of.  If that assement is true that would be odd, as Lachmann is usually associated with being under Hayek as Rothbard is asociated with being under Mises

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Clayton replied on Wed, Sep 14 2011 12:23 AM

Say what you will about the deficiency positivism, or much of philosophy since the Enlightenment (including Rothabrd), but positivism is probably 100% correct as far as I can discrern in regrards to aesthetics, law, morality and most other things we should recognize as very obviously  nonesensical...and perhaps even best easily explained via custom / evolutionary narrative - if it needs to be spoken of at all, which it probably doesn't in most cases.

The word "positivism" is so overloaded as to be almost useless. The sense in which you are using it* is not related to the specific meaning it has when prefixed by the word "legal". I will quote Wiki, which is pretty accurate on this:

The principal claims of modern legal positivism are that:

- There is not any inherent or necessary association between the validity conditions of law and ethics or morality.
- Laws are rules made, whether deliberately or unintentionally, by human beings.

You can look further down in the article where you will find that one of the "founding fathers" of legal positivism, John Austin, held that:

- the law is command issued by the uncommanded commander—the sovereign;
- such commands are enforced by sanctions; and
- a sovereign is one who is obeyed by the majority.

The strategy of legal positivism is to first disassociate law and morality. Even if you're right that law, morality, aesthetics, etc. are all "nonsense", they are clearly related nonsense since they are all uniquely human nonsense. Legal positivism says, no, morality is over there and law is over there and never the twain shall meet.

Once law and morality have been separated, law is no longer has anything to do with human notions of "right" and "wrong". Rather, the study of law is nothing more than the study of politics - law is the obedience of the public to the sovereign. Whether it is right or wrong for the sovereign to make the people obey him or whether it is a sign of social sickness for the public to obey a sovereign nowhere enters the picture, it cannot enter the picture because law has nothing to do with morality.

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Would you say I am using it according to this definition (1st paragraph is all you need):

http://plato.stanford.edu/entries/legal-positivism/

Because that is more or less the line of thought I thought I was on

 

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.

Now,I would atomize this, to an indivdual and Nietzschean world of facts at a"perspectivist" level if I had to, but overall this is what I am getting at.

 

As far as related "human nonsense" I become confused.  You can call nonsense important and unimportant I suppose - but to call things human and related and try to speak of them in a universal inter-subjective language makes 0 sense to me - they are out of scope, out of reach, out of thought, and that is the point.  all that matters are extant power structures, logical necessity, and maybe some type of empty tautology (murder is killing illegally, rape is illegal sex, etc).

 

Once agian, the soverign is simply what is recognized as such at any given time, I am willing to atomize - but it's power structure is real - and it is real by the necessicty that we can talk about it universally and mak sense of these things, A=A

 

On second thought I may not be in an exact form of positvism, but my traditional Stirnerite ontological egoism / a bastardized Aristotelianism?   But I still think this falls in the same broad category in some way - even though my general metaphysics is not the same as those who derive there thoughts from British Empiricism.

 

Law = whatever the recognized "might" may be, for our purposes.  Now that authority is still subject to whatever the laws of our universe may be gravity, econmics, etc - but still

"As in a kaleidoscope, the constellation of forces operating in the system as a whole is ever changing." - Ludwig Lachmann

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Clayton replied on Wed, Sep 14 2011 2:02 AM

Law = whatever the recognized "might" may be, for our purposes.  Now that authority is still subject to whatever the laws of our universe may be gravity, econmics, etc - but still

This is all very grandiose-sounding and that is exactly where my view of law differs. "Law" is not really any particular, well-defined thing, any more than "custom" is. Instead, law is a word that reifies the body of human knowledge regarding dispute-resolution. We speak as if the fact that murdering someone will result in either retaliation from the relatives of the deceased or unfavorable terms of settlement in arbitration as if someone had made a rule or law: "Murder is prohibited." The fact is, no one has ever made any such rule and the pretense of making rules that States engage in is a lot of Wizard-of-Ozry. "Pay no heed to the man behind the curtain." Well, what happens if we do pay heed to the man behind the curtain? It turns out that the man behind the curtain is, as Etienne de la Boetie points out, just another human being with two arms and two legs like everybody else. That he is a "sovereign" is just a very grandiose way of saying that he exists within a very long-running tradition of exploitation, enslavement and subjugation through the methods of knee-breaking, intimidation and general thuggery wrapped in the white linens of religion, law or whatever device the sovereign uses to conceal the fact that he is naught but the Don of a Mafia that has the unique feature that it can operate in broad daylight.

The problem that law exists to solve - disputes which might result in violence - is its raison d'etre. Law is not "the set of things which an average person can or cannot do." This definition is clearly deficient. I can't fly a Boeing 747. I can't build my own mansion. The first is the result of the fact that I do not have the skills and qualifications. The second is the result of the fact that I do not have the money. Unlike the first two, I actually can murder someone though I will almost certainly be punished for it. But clearly it is not illegal for me to learn to fly a Boeing 747 and it is not illegal for me to build my own mansion (if only I had the money) yet it certainly ought to be illegal to murder and that whether or not anybody bothers to make a rule against it or not. So, this idea that laws restrain and determine human action like the laws of physics restrain and determine the actions of physical objects is nonsense. It arises from the mentality of central social planning where the social planner labors under the delusion that he is "creating" a certain kind of society by making and enforcing rules (dictates).

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Last post on this tonight

I don't know if we are in any form of disagreement at all, we may be talking past eachother. Let me try this a different way by cutting and pasting - so if I pick and chose wrong that is because I am reading you wrong - as I am trying to pick out the core concepts I find pertinent to what I think both you and I are trying to say.

 "Law" is not really any particular, well-defined thing, any more than "custom" is. Instead, law is a word that reifies the body of human knowledge regarding dispute-resolution.

Correct it is a "non thing" - it is a practiced art, not a science or anything.  If I grant you the rest, I would still look at it as a tautology - which is fine, the rest is just paying attention to what it is in actual practice.  So murder is illegal, by definition.  For murder or a dispute-resolution, etc, or whatever to have any bearing or make any coherent sense - it would have to be within a recognized extant power, within my scope of practice, for my purpose.

There is no armchair speculating on "law", "dispute-resolution", etc as "things" in themselves - but actual practices, with actual people, with actual power, with actual customs as they exist within that place and time as they suit the actual relevant perspective.

 

The problem that law exists to solve - disputes which might result in violence -

I would once again say, if I agreed to this - I would still say violence is once again something of a tautology, and we are back again at looking at the power structure behind that which regulates violence. 

I also may want to say that if it is possible to think of violence at all - the only way I can wrap my head around it is by saying that it is simply "an internal or foreign shock to the general expectations of the institutions in questions /  a break in homeostasis" - which would once again lead us to relevant perspectives and extant power mechnisms.  Once again, if the power mechinism exist in various logical structures, or have geneologies to how they got there - so be it - but it is outside of the scope of practiced law (which is all law can be), as such.

I actually can murder someone though I will almost certainly be punished for it.

If you are not "punished" for it is it murder?  I mean you can bring it down to an existential level I guess - but outside of that, if you call a killing just, it is just regardless of the consequence.  If you call a killing "murder" via Texas law, or NAP law - so be it - but what have they to do with the actual factual action at hand? 

If I murder someone in Detroit - it is because "Detroit" says so and has the authority and power for it to have meaning (the power that is has to recognize and spot it as murder in actual practice for it to even exist mind you) - it has nothing to do with the laws of murder in Bejing, and the price of tea in China - or even my mind - it may have to do with the way I calculate, operate, and carry on expectations in a Detroit environment though - and try to make things work to my advantage with my expectations in relation to Detroit.  With that I recognize what "murder in Detroit" means to powers I think of as relevant to my cause, my affairs, my concerns, and my expectations - adjust and hope things work out OK. 

So, this idea that laws restrain and determine human action like the laws of physics restrain and determine the actions of physical objects is nonsense.

If you think I meant that, you misread me (which was probably my fault).  I meant that we can talk about actual factual logical structures despite what a law may say:  so if a law in Libya says something like "Earth is not allowed to orbit on teusday" - it is still subject to the laws of physics.   I brought this up to point out that one can say a law is going up against science (such as economics) and is hence speaking nonsense, and only subsidizing itself for it's benefits..  We can examin the genologies of the law, the power that arbtrates it and the logic of reality - which I think lead one to some market anarchistic point of view, when looking at social facts of neo-darwinism/markest/subjectivism (which are all probably synonyms in some way).    We can not however look to any answer in law itself

Laws can determine ones expectations in society, but not universal laws of science and logic - as law is not a universal science - it is a practiced art (though we can come up with tautologies)

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Clayton replied on Wed, Sep 14 2011 3:07 AM

If you are not "punished" for it is it murder?

Well, the word "murder" includes a value judgment as well as the fact of homicide. You are right that, in this sense, murder is not an objective fact, it is subjective.

  I mean you can bring it down to an existential level I guess - but outside of that, if you call a killing just, it is just regardless of the consequence.  If you call a killing "murder" via Texas law, or NAP law - so be it - but what have they to do with the actual factual action at hand?

To call a homicide murder requires making a value judgment. Neither NAP nor Texas law can make value judgments, only humans can. Hence, if we say a homicide is murder, we actually mean that it is murder in someone's eyes.

If I murder someone in Detroit - it is because "Detroit" says so and has the authority and power for it to have meaning (the power that is has to recognize and spot it as murder in actual practice for it to even exist mind you)

No. Authority can only be given, not assumed. Power can be imposed but value judgments cannot be. Suppose the Mafia can punish me for killing one of their hired guns when he broke into my house. That, in itself, doesn't make my homicide murder, even if they have written down some rule somewhere that "defines" killing one of their hired guns to be "murder" and they have such overwhelming power in my neighborhood that I will be certainly punished for committing what they call "murder." Imposition of an outcome to a dispute (bullying) cannot impose values. Judgments regarding the rightness/wrongness of a particular action are subjective valuations and everyone has their own opinion (this is a descriptive, not a normative statement).

- it has nothing to do with the laws of murder in Bejing, and the price of tea in China - or even my mind

Well, it has in part to do with your mind. It has to do with what is in the minds of the people involved in the dispute created by your actions. Your view is that it's not murder. The view of the victim's family is that it is murder.

- it may have to do with the way I calculate, operate, and carry on expectations in a Detroit environment though - and try to make things work to my advantage with my expectations in relation to Detroit.  With that I recognize what "murder in Detroit" means to powers I think of as relevant to my cause, my affairs, my concerns, and my expectations - adjust and hope things work out OK.

Here I think you're jumping the gun. In the thread I started ("A Praxeological Account of Law"), I treat this subject of how law feeds back into the calculation of individuals regarding the course of action they choose but I think you need to first deal with how law arises out of the need to resolve disputes.

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Clayton:
NAP+: "The use of force is unjustified unless it is used in response to aggression (unjustifiable initiation of force) except if your name is Barack Obama and you are the President of the United States, then it's OK, you can bomb people or do whatever the hell you like because you've been 'duly elected' to the office of Emperor of the Earth."

See where I'm going?

If you start with NAP as your universal rule and admit exceptions, then what you're left with is no NAP at all.

I understand that.  Where I was going was precisely what you wrote next: 

Clayton:
I also was speaking metaphorically when speaking of a body of rules. I do not think that law - rightly understood - is a set of rules at all. The law is not a set of rules, it is a body of knowledge regarding the resolution of disputes, particularly as it arises out of the specialized occupation of arbitration (division-of-labor in dispute-resolution).
I agree with that.  That is exactly why I see nothing wrong with exceptions to rules in the practice of law.  For instance, Acme Protection Agency offers a security policy has a blanket response to dealing with murder with one exception: the murderer is mentally retarded or under the age of 14 years old. 

See what I mean?   exceptions to rules are no big deal.  We govern ourselves that way all of the time. 

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Wheylous replied on Wed, Sep 14 2011 2:50 PM

exceptions to rules are no big deal

Why stop there, when you can have exceptions? Why not let even more people get off the hook? Hey, taxes seem to make people happy, so let's make an exception for taxes!

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"I would say that if law isn't universalizible (if that's correct word) then it isn't law at all.."

And that is why I would say there isn't law at all.

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Clayton replied on Wed, Sep 14 2011 5:53 PM

 I agree with that.  That is exactly why I see nothing wrong with exceptions to rules in the practice of law.  For instance, Acme Protection Agency offers a security policy has a blanket response to dealing with murder with one exception: the murderer is mentally retarded or under the age of 14 years old.

See what I mean?   exceptions to rules are no big deal.  We govern ourselves that way all of the time.

The policies of a particular security producer is not law and has nothing to do with defining the law (though they may be defined/informed by the law), in my view.

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The policies of a particular security producer represents the practice of law. 

 

 

I think I have figured out why it seems like we are talking past eachother. 

I am not disputing that the non-aggression principle is the only law.  Where the metaphorical rule books come to the fore is in the market for arbitrating disputes -- i.e. How should an aggressor who tortured and murdered a child be treated? compared to How should a kid caught stealing an apple from the market be treated? 

The law says they are both aggressors. 

The practice of laws says that the murderer-aggressor by hung, drawn and quartered whereas the child-aggressor be sent to his room without supper. 

I think this distinction is relevent since we tend to understand human action through the paradigm of the market. 

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