This comment really deprives this debate of any significance. — Hanover

Okay.

This would rescue positivism because the overall purposes of the body of law as a whole need not be aligned with any external morality. — Isaac

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.

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. — James Riley

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.

No 'natural law' of passcodes is required. — Isaac

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.

No 'natural law' of passcodes is required. — Isaac


It is if there is reason. — James Riley

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.

Your example is flip and references no reason for any selection. — 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.

That makes it arbitrary and capricious and subject to the legitimate refusal to be recognize it as law. — James Riley

What arbiter of 'legitimate' would normally restrain someone from refusing to recognise a law as law?

. So all you're saying is that you think there's a natural law that ll laws refer back to but you've got nothing by way of argument from necessity to support that guess. — Isaac

Only laws based on reason. If I rule by fiat, that is no reason, and is therefor no law.

Again, if I referenced a universal external reason for the selection I'd be begging the question. — Isaac

No, you would not. You'd be using reason in support of your law.

The issue at had is whether laws result from natural law. — Isaac

It does. If it does not, then it lacks reason and is therefor not law.

You can't argue that they do from a position of assuming they do. — Isaac

I don't assume they do. I demand they reason to be law.

What arbiter of 'legitimate' would normally restrain someone from refusing to recognise a law as law? — Isaac

Natural law.

You may find this surprising, but I agree with everything you just said. — James Riley

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!

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? — Isaac

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.

So are there any laws which you currently refuse to acknowledge on those grounds? — 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.

Or is that 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! — Isaac

Asked and answered.

So are there any laws which you currently refuse to acknowledge on those grounds? — Isaac


There are many, — James Riley

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?

Or is that 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! — Isaac


Asked and answered. — 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.

So you are/were a practising lawyer and you refuse to acknowledge certain laws as law. — Isaac

Operative word is "were."

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. — 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 you are/were a practising lawyer and you refuse to acknowledge certain laws as law. — Isaac


Operative word is "were." — James Riley

So when you were a lawyer you thought differently about law?

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. — James Riley

I've read the whole thread. It's not about catching up, I just can't see where you've answered that question.

So when you were a lawyer you thought differently about law? — Isaac

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.

I've read the whole thread. It's not about catching up, I just can't see where you've answered that question. — Isaac

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.

whether it be or be not conformable to an assumed standard, is a different enquiry. — Ciceronianus the White

And that is our enquiry.

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; — 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).

It leads to a fundamental ignorance of the nature of the law and its operation. — Ciceronianus the White

It fully understands the nature of the law (pretense) and it's operation (stick).

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). — James Riley

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.

I think it's futile to insist on the "reality" of that which makes no difference. — Ciceronianus the White

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.

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, — Ciceronianus the White

I would not only agree, but I would say that rests in competition for understatement of the millennium. :grin:

and I think that is in essence all Austin and Ciceronianus said in the OP. — Ciceronianus the White

I thought they were negating an assumed standard. That was the rub.

I would not only agree, but I would say that rests in competition for understatement of the millennium. :grin: — James Riley

Well, it took us a while, but we got there eventually.

Well, it took us a while, but we got there eventually. — Ciceronianus the White

Well, we still have the rub, but there's no sense beating on that poor horse. Best to you, counselor.

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. — Ciceronianus the White

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.

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

My 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.

My 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. — Hanover

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."