And that is why some people don't recognize the law. It's not their law. — James Riley

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.

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? — Hanover

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.

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.

Ever since it tried to get along without the stick. — James Riley

Which was when? Where?

So Natural Law is not the law. It seems we agree after all.

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.

And that is why the law now operates largely by the stick and not by persuasion of reason. — James Riley

Ah. I'm curious. When did the law operate by "persuasion of reason"?

As demonstrated in the same post, Natural Law (justified) is not misusing the term "law." It's not addressing "law" at all. — James Riley

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?

Mala in se are the laws we're interested in here. — Hanover

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.

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. — 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:

(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

The Free Dictionary:

Law
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

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.

And yet the statue of Justice stands as the symbol of law. — Fooloso4

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.

Just for clarification, Ollie accepted legal positivism's value-free approach to law.

"This is a court of law, young man, not a court of justice."
--O.W. Holmes, Jr., speaking from the bench during court proceeding.

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.

You've entirely failed to distinguish Natural Law from law. — James Riley

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.

You fail to draw a distinction with a relevant difference between Natural Law and the law. — James Riley

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.

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. — James Riley

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.

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. — Fooloso4

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.

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.

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. — Fooloso4

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.

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.

How does this square with the claim that "We are a nation of laws not of men"? — Fooloso4

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.

A child is more a spirit in a body than a family progressing device, owned by the parents. — ghostlycutter

Damn. I was sure my children were family progressing devices I owned! Well, jointly with my spouse, I suppose, as I live in a community property jurisdiction.

Cicero lived in volatile times. — Athena

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.

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.

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". — Metaphysician Undercover

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.

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.

You assume then that he did not claim to be God? — Sam Aldridge

Only the Gospel of John portrays Jesus as claiming to be God. it's odd that the other Gospels did not. One would think their authors would have thought that claim of some significance, if it had been made, and would have noted it. The Gospel of John was the last Gospel written, based on what is known. By then the astonishing process by which it came to be claimed Jesus was God had begun. Lewis' argument that this claim supposedly made establishes Jesus was God, like his others, are merely glib.

I'm aware of the fact that apologists maintain that the fact Jesus was God was implied in other Gospels, but am unimpressed by those claims.

Are you merely saying that laws are not necessarily moral? Or is there something more to it? — Janus

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.

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.

I think it can be argued many human laws are just stupid ideas and not really laws. — Athena

I find myself unable to accept the proposition that the law is whatever each of us thinks is not stupid, or not wrong.

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.

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.

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.

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."

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?

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. I — James Riley

What can I say? If you believe that something exists only when someone thinks it exists, you're welcome to think so.

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.

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.

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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. — Hanover

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.

I do see what I'm describing is exactly what exists in the US. — 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."

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. — Gus Lamarch

I think you must be referring to some other Ciceronianus, unknown to me.

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. — fdrake

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.