you agree by treaty that your won't go to war except in self defence or with UN security counsel approval then not abiding by those rules makes the law illegal. If you want to argue you aren't bound by treaties then you shouldn't sign them in the first place — Benkei
That would mean that bike theft would be legal in the Netherlands because 99% of them are not followed up and remain unresolved. — Benkei
There's a difference between an inept police force and an intentional decision not to enforce the law. There's a significant difference, for example, in California now that they've legalized pot and the feds have indicated they won't enforce the federal law than there was 20 years ago when the law was laxly enforced.
If the US doesn't view the UN resolutions as truly binding and there's no way to get them to obey them, then in what meaningful way are they "law."?
You guys need to put GPS finders on your bikes. Just an idea. — Hanover
I was responding to the idea that enforcement is a criteria between whether something is the law or isn't. I guess we agree then it's not enforceability per se? — Benkei
Based on your comment then if the US promises to do something and puts that in writing then that promise doesn't bind it because there's no court to enforce it? Seems an interesting take on treaties, to say the least. — Benkei
That's why pacta sunt servanda is considered customary law. The argument that the US can afford to break the law without repercussions is not an argument against the law in my view (especially when whenever they do it, they appeal to the rules they signed up to). It becomes an issue of politics and not law. — Benkei
I don't know. I think a law without a remedy is only a recommendation. It reminds me of the exclusionary rule declared by the US Supreme Court for unreasonable searches and seizures. The Constitution doesn't say illegally seized evidence is to be excluded, but without fashioning that remedy, it's not much of a law. — Hanover
I'm describing reality, not what ought to be. — Hanover
What you're describing is what ought to be. If the House of Hanover passes a law that it never follows and it never enforces and no one gives a shit about it, I wouldn't call it a law. Its something, not sure what, but not much of a law. — Hanover
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding. — Constitution
But I suspect that's not your position. What about murder in far of places where there's no police to investigate? I don't think "don't murder" only becomes a recommendation as a result but is still the law. If for whatever reason 10 years from now there's plenty of police to investigate, all the murders committed during those 10 years would result in charges and possible convictions without the necessity to pass any "law" to do so. As you can see, I have trouble understanding exactly what such a rule would still mean to you. — Benkei
we did have a similar debate previously. His position, and I don't mean to misstate it if I do, is that he recognizes only positive law as being the law, meaning only those formally passed laws are to be considered. This is in opposition to natural law, which would arise regardless of what our legislatures do. — Hanover
Our current debate, on the other hand, doesn't really delve into what is natural law (except to a limited degree, which I'll point out), but more so asks what is a meaningful positive law. That is, if a law is passed illegalizing murder but it imposes no consequence and no means of enforcement, then does the fact that it's toothless deem it no longer a law? — Hanover
The entering into a contract creates expectations between us about the nature of promises and rights and it also creates expectations in a wider community if they are aware of the promises we made. As a result, we've established rules intended to regulate behaviour through performative acts (two promises). It's these expectations and the underlying intent that is aimed at creating such expectations that, in my view, create law. — Benkei
I don't think this is fundamentally different where it concerns treaty obligations. The system of national laws sets out that any treaty signed and ratified is accepted as binding and that national laws will be set aside in favour of the treaty rules. — Benkei
This is why I don't think enforcement is necessary for a rule to be law, because I think it's about intent and expectations; or, the meaning that arises from the promises made. — Benkei
you agree by treaty that your won't go to war except in self defence or with UN security counsel approval then not abiding by those rules makes the law illegal. If you want to argue you aren't bound by treaties then you shouldn't sign them in the first place — Benkei
Yeah enforcement isn't necessary for something to be a law, it just makes the law largely ineffective. It is about intent and expectations, they are normative after all, but I wouldn't say that is what makes something a law. Whether something is a law or not is determined by it being approved in a legislative organ or not. — ChatteringMonkey
Splitting hairs a bit probably... but signing a treaty is done by some executive power. In itself that doesn't lend legal power to that treaty. It's only after ratification (by a legislative power) that it gets that status in an internal legal order of that country... and even then, laws do conflict with eachother (even aside from treaties), it will depend on the internal rules of conflict resolution and hierarchy of norms which law should take precedence. — ChatteringMonkey
He was a man of principle, this man. His principle was there are no principles.
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless. — Benkei
I mentioned this explicitly in my previous post but I tend to just refer to "signing" to avoid long sentences. I assumed current posters here know this and will forgive the inaccuracy. — Benkei
But this is what it ultimately is, circular. You have a constitution usually, which is a subtype of law requiring special majority to change, that determines how laws can be passed. Of course, behind those procedural requirements there are philosophical ideas, in case of democracies the legislative organ consists of representatives that are voted in by the people etc... So ultimately yes laws are rules that are devised according to a procedure that a certain community has decided on to be the procedure of passing laws. — ChatteringMonkey
The closest to it would probably be legal positivism which suffers from "turtles all the way down". — Benkei
It is a theory but it's not recognised as such in analytical jurisprudence. The closest to it would probably be legal positivism which suffers from "turtles all the way down". Kelsen reaches the undefinable and conceptually useless "Grundnorm", which is just "natural law" dressed up in different wording. I don't like the theory for the reason given in the previous post, the weakness inherent to it in establishing what is and isn't law and the fact I'm a firm believer in bad law, not being law. Civil disobedience is required sometimes. — Benkei
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless. — Benkei
I agree generally with what you said, but I think you underestimate the significance of bargaining power and that complex interactions involve complex agreements that go far beyond the four corners of a contract, especially when that contract is a highly complex and politically sensitive issue like a treaty.
Consider your father told you that if you do the wash, he'll pay you $10. You do the wash, but he doesn't pay. Next week he asks you to do the wash, you protest over your outstanding debt, and then he explains how your debt to him is far greater than his to you and that the repercussions of your not doing the wash will far outweigh the relief of not having to do that wash. And so what do you do? You do the wash. — Hanover
Hanover and I have a long-standing disagreement about whether, for instance, international law is law or not. — Benkei
And I disagree that all definitions are arbitrary. If we are attempting to describe reality, in this case a sociological phenomena like law, just making stuff up doesn't really cut it. — Benkei
Just including a "procedural requirement" in the definition of law doesn't resolve much. Is this procedural law a law? Yes, it was done by procedure. Until you end up with the first law, which wasn't established by procedure and we have to conclude it isn't law, subsequently invalidating all laws deriving from it. — Benkei
It also ignores the role of customary law. When a judge applies a rule based on custom, the judgment recognises a certain custom as law but it was law before the judge recognised it as such otherwise he would not have had an obligation to apply it in his judgment. — Benkei
It's a pretty well tread argument. But why do we want to know whether international "law" is actually law? Would anything change about international relationships if it were called, say international norms? — Echarmion
Why would the first law not be established by procedure? The procedure doesn't need to be established by law. A constitutional assembly has / is a procedure, and isn't necessarily itself based on a law.
Indeed if we did make an empirical study of laws, I think one can argue that laws are characterized by a process from which they derive their legitimacy, which is either a specific procedure or the more general process of custom. — Echarmion
On the other hand, if a judge or chamber sets a precedent by a specific ruling, that ruling will acquire the force of law only after it is established. And I think it's not convincing to argue that judgements only apply or "discover" laws. Every judgement also generates new law, even in civil law traditions. Law is in this sense better understood as a living matter, consisting of a constant feedback loop between custom, codification and application. — Echarmion
My inclination is to consider the law as something which derives from our interaction with each other and the rest of the world of which we're a part, — Ciceronianus the White
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