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

I can believe the law must conform to an "assumed standard" of some kind, and isn't the law if it does not, while still not ignoring it. A refusal to submit to jurisdiction does not equal an ignorance of the pretense to it by some sovereign.

it doesn't explain it. — Ciceronianus the White

The burden would not be upon them to explain that which they don't recognize. And the sovereign, of course, does not always feel compelled to explain itself or entertain any arguments against it.

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

Those who deny the law are not ignorant of it's nature or it's operation. They usually know it's nature and it's operation better than the sovereign that brings it down upon them.

The moral law involves the "illegally irrelevant" distinction between good and evil. Just what a positivist would maintain. — Ciceronianus the White

I think these concepts are ambiguous but not irrelevant. It is like a metaphor of what is supposed to be good or bad acts. How to act like a formidable citizen.
Sometimes is difficult to encourage these situations. I guess in private law (civil) is easier because nobody can make an agreement which is against the law, moral and public order (Art. 1255 Código Civil. https://www.boe.es/buscar/act.php?id=BOE-A-1889-4763)

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? — Hanover

Of course it was the law. it was a law that the sheriff, the prosecutor, the juries and the judge believed shouldn't be the law, based on an "assumed standard." These are the dangers we face when we believe the law must conform to an assumed standard.

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. — Hanover

I'm going to be lazy, and will quote from the Stanford Encyclopedia of Philosophy, because I think it does a good job of summarizing a complex point of view:

The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. 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. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.

I think this is fairly clear. Legal positivism/realism states that whether the law or a law is just or moral or unwise has nothing to do with whether they exist.

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. — baker

Wouldn't that just be self-fulfilling anyway. If some group were not able to enforce some proscription on behaviour then by definition they wouldn't be the 'mighty' in that case. This is true regardless of what the current law happens to say, so can't itself be a mechanism whereby law is tied to morality.

we need to put necessarily moralism inner laws to reinforce the development of ethical/moral issues — javi2541997

Maybe. But if we also need to put paint in tins so as to stop it spilling all over the floor, paint does not thereby become tins, nor synonymous with tins, reliant on tins, made of tins nor any other necessary connection with tins. Plus once it's on your wall you can throw the tin away.

Tins likewise, are unaffected by their sometime use carrying paint. they are not no longer tins when the paint is used up, nor are they no longer tins if used for something else.

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!

I agree. Laws mostly protect the interests of the state, the preservation of the established order, and the power of the ruling class rather than conform to any standard of “natural law” or morality.

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

If necessary conformity between the law and some natural right is required for a law to be a law, that seems easily violated by differences in laws over legal systems. If it's only legal in one country to drink when aged over 18, and legal in another to drink only when aged over 19, whether an 18 year old can legally drink depends upon the country. Thus if the first reflects natural rights, the second must not, if the second reflects natural rights, the first must not, alternatively neither reflects natural rights, and thus there's a law which does not conform to them.

But necessary conformity seems a very strong requirement; for manifestly what people consider legal they often consider moral, and manifestly what people consider moral they think ought to be legal. The boundary between what generates legal systems and what generates moral evaluations seems much less clear.

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.

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

Say, for example, that laws were largely devices for those in power to manage their estates (I'm not saying that's all they are, just using it as an example), then many of them would be about maintaining peace. If morality were about how we can live most effectively together then many morals would also be about maintaining peace.

What I'm getting at is if the two systems have some crossover in their strategies then we'd not be surprised to see some crossover in methods, even if they remain two separate systems.

Is a coincidence of methods the same thing as a coincidence of objective?

What I'm getting at is if the two systems have some crossover in their strategies then we'd not be surprised to see some crossover in methods, even if they remain two separate systems. — Isaac

Yes, analogous to convergent evolution in biology.

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. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. — Ciceronianus the White

If judges decree which laws are to be enforced based upon the justice, wisdom, efficiency, or prudence of the law and those pronouncements are recognized by law as authoritative, then are we within a positivist or natural law system?

I happen to be a believer in natural law. The idea of a law which is discoverable and not created by us but to which we ought to conform our civil or human laws. I think, in reading many of the responses and comments in this thread, that this may not be the majority view.

I would like to note that I am heavily influenced by the thought of John Duns Scotus, a medieval Franciscan philosopher and theologian. So, I take his understanding of natural law to heart here. He has a strict sense in which natural law can be applicable. Scotus, basically, states that a natural law must be a necessary law (perhaps necessary in the logical sense, where it would be true in every universe). As you can imagine, very little can be considered natural law by this definition. It would be dependent upon something which is present in every possible universe. And for Scotus, that would be God, the highest good and only necessary being.

Natural law in the strict sense then boils down to: love God and love neighbor. Everything else must be derived from this. The first half of the statement is necessary because we love what is good, our wills are ordered toward the good, and God as the highest good is that which we ought to love most. The second half of the statement boils down to a divine command theory.

Interestingly, Scotus notes that loving ones neighbor can be done with the same love that we love God. The reason being is that, in loving our neighbor, we really ought to will that they also love God, the highest good, and so the love of neighbor is a quasi-reflex love of God.

The reason I write all of this is because natural law in this sense is fairly simple. Everything else will either be divine command or our human law which we, hopefully, enact with an eye toward our natural law.

So, for Christians at least, the question goes all the way back to whether a law in some way can be said to honor love of God and love of neighbor.

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

:ok:

Law is not synonym with Good.

Indeed we favor those laws which protect our - individual - moral principles; This same principles govern how the individual behaves and how its own consequence behaves - that which is Society -.

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.

I know it's coincidental, but it's interesting to simpletons like me that Scotus is spelled the same as the acronym of for the Supreme Court of the United States. SCOTUS. HA!

Anyway, there are those that believe our Constitution here (U.S.) is a document which does not create rights, but which merely acknowledges pre-existing (natural) rights, and then sets out government's relation to those rights (defending, extending, infringing, etc.). Then John Marshall, first Chief Justice said something like "It is emphatically the province of this court to say what the law is." Marbury v Madison. Some argue that he pulled that out of his ass, but it's the law now because, well, he said so.

If judges decree which laws are to be enforced based upon the justice, wisdom, efficiency, or prudence of the law and those pronouncements are recognized by law as authoritative, then are we within a positivist or natural law system? — Hanover

Legal positivism isn't a kind of legal system. Legal systems aren't positivist or not positivist. I suppose it's at least possible for a legal system to be made up of just, wise, efficient and prudent laws, in which case depending on what natural law is supposed to be it may conform with it. Legal systems don't have to conform with it.

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.

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.

I guess law is literally the reinforcement of morality... — javi2541997

But a law may be good or it may be bad. That is, a law's being enacted does not make the acts it circumscribes morally right.

Morality is a separate consideration from legality.

Your example demonstrates my point. Sometimes the law intentionally supports what is good. Sometimes it does not.

It is to learned, intelligent, wise and reasonable people, yes. But there are distressingly few of us. — Ciceronianus the White

There seems to be only you and I.

And I'm not to sure about you...

This conversation seems to flying over my head. If something exists regardless of any import, or lack thereof, which might be attached to it, then one can only ask “who cares?” I’d say any law that is extant belongs to Caesar’; like the coin. It may mean a lot to Caesar and his minions, but it is not his law that comes down upon me. It is Caesar and/or his minions that come down upon me. His law is merely what he uses for justification to himself and/or his minions and/or his enemies. But it’s not the law to anyone who doesn’t think it is.

I could be wrong, but the whole notion that “the law is the law” seems akin to the logical principle of A = A. It seems to be expecting some kind of acknowledgement to which it is not entitled. Punishment, like anecdote, or “self-evidence” or “because I said so” does not constitute a proof in logical argument, the burden of which lies on Caesar. Caesar does not appear inclined to explain himself.

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. It’s like the question of jurisdiction: If you even open your mouth in court to say anything other than to deny jurisdiction, then the “law” will deem you to have submitted to it. However, that’s the law talking to itself; something the law loves to do.

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

We can discern and discover that we speak of the same person by the indirect evidence of his - aka, your - belief in a "substantive intrinsically law".

What say you to that, if anything? — Ciceronianus the White

I think morality should be left to politics, while for the sake of the functioning of legal systems, maintain a distinction between morality and law. It's not for the courts to do good, per se. It's for the courts to do right - by legal process, where the good is defined democratically - by government responsible to the people in making laws that promote the good. Then, if any particular law fails to promote the good, the government can change it - or the people can change the government that made it. But what do you do if you've made morality and law synonymous, and for whatever reason, you've crafted a bad law? Live with it?

I must have said something in the middle of the first page that people here think it's incredibly stupid, or incredibly smart, because nobody referred it. Or maybe the perception is that it's incredibly ignorable. My view certainly does not lend itself to the learned arguments over philosophies of hifolutin' law practicing dudes, but I believe what I said was rock solid.

I must have said something in the middle of the first page that people here think it's incredibly stupid, or incredibly smart, because nobody referred it. Or maybe the perception is that it's incredibly ignorable. My view certainly does not lend itself to the learned arguments over philosophies of hifolutin' law practicing dudes, but I believe what I said was rock solid. — god must be atheist

Okay, I'll bite - but you may not like it.

Seems to me, upon perusal - you've attacked every form of government, except Islam, while taking a sideswipe at China. Insofar as philosophy literally translates as "love of wisdom" - perhaps you didn't get a reply because this is a philosophy forum and what you said is not wise.

With regard to the passage below; I'd like to know to what degree my ideas have influenced your "thinking" if at all - or if use of the word "tribe" is convergent evolution.

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. — god must be atheist

The first part of what you say here is not that stupid. It's an arguable implication of many of the concepts I discuss, but it's then set in the context of these crazy remarks - and I'd like to know if you're trying to damage me.

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. — Hanover

I find this to be an interesting statement. How could a law intentionally correlate to morality? Let's say that different lawmakers make laws for different reasons, morality might be one. Suppose a lawmaker proposes a law which is apprehended by that lawmaker as correlating to morality. Doesn't that law have to be passed by all the other lawmakers involved, before it becomes a law? Each of those lawmakers has one's own intentions. So, by the time the law is passed, the one who proposed the law had the intent of morality, but all the others had some other intentions, and unless those other intentions were morality, then we shouldn't say that the law intentionally correlates with morality.

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? — Hanover

Oh, this is a nice one. You appeal to your "local government". What happens when the local government is not consistent with the regional government? Who has the real authority?

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

Well if not that, which seems the obvious meaning of "assumed standard", what else could Austin possibly mean by "assumed standard"? Is Austin talking about some sort of "assumed standard" which has not actually been assumed? Wouldn't that be contradictory?

Yes, analogous to convergent evolution in biology. — James Riley

That's what I had in mind, yes. Like if one person wanted two antagonists to stop fighting so they don't wake their sleeping baby and another just 'can't stand to see people upset', they'd both stage an intervention to mediate or prevent the fight in some way.

In law the legal drinking age might be a good example. Morally we might encourage teenagers to reign in their drinking a bit out of a moral concern that one should not deliberately put oneself in a position of limited self-control. The law might also restrict their drinking but in their case to limit public disturbance and property damage.

Since a peaceful co-existence is most of the time the best overall strategy to meet both moral and political objectives, there's going to be a lot of overlaps like these.

Ouch.

You know how to shut a person up: just pile on a whole bunch of totally unrelated negative charges, state conclusions that are damaging but have nothing to do with the subject material, and claim I based some of my ideas on yours.

You are full of hatred, that's the only insight I garnered from your response. You made no sensible point, and you spewed a bunch of hate-inciting opinions on me, that have nothing to do with anything.

Thank you very much for your response, your intention to hurt and your insanely irrelevant opinions showed to me in no uncertain terms that you are beneath worthy of ever reading your posts.

I find this to be an interesting statement. How could a law intentionally correlate to morality? Let's say that different lawmakers make laws for different reasons, morality might be one. Suppose a lawmaker proposes a law which is apprehended by that lawmaker as correlating to morality. Doesn't that law have to be passed by all the other lawmakers involved, before it becomes a law? Each of those lawmakers has one's own intentions. So, by the time the law is passed, the one who proposed the law had the intent of morality, but all the others had some other intentions, and unless those other intentions were morality, then we shouldn't say that the law intentionally correlates with morality. — Metaphysician Undercover

Hypothetically, there could be a unanimous opinion as to the purpose of a law and that purpose could be to advance a certain morality. In any event, though, since we're speaking in the abstract as to whether there could be a law passed purely for moral purposes, there's no reason therefore to limit it to democratically passed laws. It might be a judge decreeing an interpretation of a law in a manner that comports to morality, and that would require a single person.

It might be a judge decreeing an interpretation of a law in a manner that comports to morality, and that would require a single person. — Hanover

This does not resolve the issue, because now we have the question of what makes one person's judgement that such an interpretation is the correct one, and that the judge's claim to morality is a true one.

The issue now being that intent to morality doesn't necessarily produce morality, because mistakes occur. This is why I find it difficult to understand how we can even talk about laws correlating with morality. If sometimes they do, and sometimes they do not, how could we ever know whether they do or don't? And if we cannot, there's no point to discussing it.

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.
— baker

Wouldn't that just be self-fulfilling anyway. If some group were not able to enforce some proscription on behaviour then by definition they wouldn't be the 'mighty' in that case. This is true regardless of what the current law happens to say, so can't itself be a mechanism whereby law is tied to morality. — Isaac

I mean that it is people's belief (the fact that people believe) that might makes right that is the mechanism that ties the law to morality, or, rather, morality to law. "Such is the law, therefore, such is moral." (I'm actually paraphrasing a conversation I had with a police officer last summer.)

This fits the 2nd level / stage 4 in Kohlberg's theory of moral development.

Some problems in addressing issues of morality are certainly due to the fact that not the entire population is (or can be) at the same level of moral reasoning.

@Ciceronianus the White and

Sometimes the law intentionally supports what is good. Sometimes it does not. — Banno

So that's obvious. We can all list off countless examples of immoral laws that have existed throughout our checkered history. I'm wondering then what this debate is about.

As I see it, it's just this:

There are laws that are passed by legislatures and the like through some accepted procedure and they are called "laws." 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. That higher law is a reference to a natural law, a principle that cannot be defeated by an act of Congress. So, if rape is legalized, such is the "law" no doubt, just as it's the law if minorities are granted inferior status. That we define "law" in the natural law context as what ought to be and that we define law in the positive law context as what actually is written, seems an equivocation of terms more than a meaningful debate.

The question I'd think of substantive interest is whether one believes there are guiding principles that ought be considered during the law making process in order to create a just society and what they are. If we agree there are such principles and as to what they are, it would seem we could further agree to use them to remove laws that violate those principles.

Those principles I refer to, which you likely agree exist, I call rights. If the word "rights" makes you uncomfortable, use a different term. But when I say a law is unjust based upon some very fundamental violation of right and wrong (as in minority discrimination and the like), I am saying that law is preempted by a higher law and it cannot stand. I do see what I'm describing is exactly what exists in the US.

Where do we disagree here?

The law can and often should change. Once it is the law, though, it is the law regardless of its wisdom or morality. — Ciceronianus the White

Yes, and this is a considerable part of the problem. Once a law is passed, it's like boarding a plane: one is stuck with it / on it for a duration of time, with no safe or easy exit.
How does one endure that time, how does one make sense of it?