Thousands of years ago and before writing, we told stories around fires. Stories about good and evil. When we learned to write, the stories were reduced to writing. Eventually they were enshrined in laws. It's all just a story about of collective human experience and how we *should* conduct ourselves. But no form is more valid than another just because one society says it is.

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 — Ciceronianus the White

To follow up on this, I give you https://en.m.wikipedia.org/wiki/Earl_of_Oxford%27s_case

In holding that when there is a conflict in common law and in equity, equity shall prevail:

"The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what Nature soever they be, and to soften and mollify the Extremity of the Law, which is called summum jus.

And for the judgment, &c., law and equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right; as Justice and Mercy differ in their effects and operations, yet both join in the manifestation of God's glory."

This was from 1615. When such reasoning fell into disfavor I don't know, but such is the foundation of our law.

I found a few minutes to read that law review article I cited above and will let it speak for itself. I only mention it again because some of it's references brought to mind an old quote that stuck in my mind from school days. I don't remember who said it, when or in what context, but I liked it:

"violates our traditional notions of fair play and substantial justice."

I think I liked it for the sentiment expressed, but I think it stuck with me because of just how contrary it was to my experience with the law as written, interpreted and applied.

I really wish that my father, or some other authority figure would have taken me out back for a little counseling about the distinction between ideas/aspirations and reality. The old saw by Darrow, there is no justice, in or out of court. And sometimes you eat the bear and sometimes the bear eats you. Those lessons would have saved me a lot of heart burn and frustration tilting at windmills. Not to mention saving a lot of clients a lot of money. But, having grown up on 1950s, 60s and 70s T.V. Westerns, which were all about the underdog and the good guy winning in the end, I went into the world pretty ignorant.

And it took a long while for the lessons to sink in. I'm a slow learner. Better late than never.

Once before I trial I was standing outside the court room with opposing counsel (he'd been around the horn). He sensed my chagrin and said: "Jim, the business of law is business." I responded "The business of law is minding other people's business." I won that case, but I started making my exit plans immediately thereafter. Opposing counsel is doing quite well in business. Me, I sleep better at night and give myself the counsel I should have given others: Avoid the law whenever possible, even if that means obeying it. Let Natural Law govern your conduct and the pretender will leave you alone.

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.

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! — Ciceronianus the White

There are laws of nature and then there are man-made laws. I think it can be argued many human laws are just stupid ideas and not really laws. Democracy is about getting rid of stupid ideas and having rule by reason. That is laws must be proven good reasoning and do not stand if they are just stupid ideas. Such as outlawing interracial marriages or homosexual relationships is just stupid and has nothing to do with laws of nature. Whereas laws about actions to prevent the spread of disease are based on the laws of nature and to reject them is being stupid.

I'm not sure just what Natural Law is, myself. — Ciceronianus the White

Some passages from Wiki on natural law:

Natural law[1] (Latin: ius naturale, lex naturalis) is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independent of positive law (the enacted laws of a state or society).[2] According to natural law theory, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason."[3] Natural law theory can also refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality."[4]

/.../

Stoic natural law
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world.[20][full citation needed] Whereas the "higher" law that Aristotle suggested one could appeal to was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to either the natural or divine source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which inspired actions that accorded with virtue.[7]

/.../

Natural law first appeared among the stoics who believed that God is everywhere and in everyone (see classical pantheism). According to this belief, within humans there is a "divine spark" which helps them to live in accordance with nature. The stoics felt that there was a way in which the universe had been designed, and that natural law helped us to harmonise with this.

https://en.wikipedia.org/wiki/Natural_law

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.

How do you think a Stoic would reply to this?

/.../ 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.

So the issue at hand seems to be the legitimacy/authority of the laws adopted by people?

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.

For the law to say that a dove-tail with Natural Law is mere coincidence, where the law stands alone, is the law saying too much. I see the law standing, indignant, arms crossed, chest puffed out, and saying "I hereby make it a crime to commit suicide and I hereby deem the penalty for a violation thereof to be death!" And there, over in the corner, is Natural Law, rolling it's eyes and saying "Yeah, sure, whatever."

I may have lost track of all my posts and I'm not inclined to go back and read them. However, I don't think I've ever disagreed with you about, or argued any issues regarding the fallibility of this or that law; it being a good or just or bad or unjust law. In fact, I started out trying to parse a distinction between a simple "law is law" argument and "law must be obeyed because it is the law" argument. I tried to figure out the former because I could not believe anyone would believe the latter, especially an American.

But okay, if all you are saying is "the law is the law" then I will stipulate that the law thinks so. Therefor, it is, at least as far as the law is concerned. On the other hand, if you are saying that the law should be obeyed simply because it is the law, I disagree. The law should only be obeyed because I think it should be obeyed, for whatever reason (expediency, don't want the stick, or I personally find it inherently just and in accord with Natural Law).

On that latter point, I think that law review article I cited makes some good points about how even our new and nuanced laws can be traced back to preexisting notions of justice. Thus, some regulation or policy articulated in the bowels of the CFR or FR about this or that which never existed in the world, prior to the development of this or that technology, still finds the genesis of it's result in Natural Law.

If there is a failure of our minds to meet, it could also be due to what I find to be a natural aversion to the way "Natural Law" is sometimes spun by those with whom I disagree. Like some "sovereign" nut in Idaho who thinks his understanding of God = Natural Law. In that case, I'm with you 100%. But I don't think Natural Law is so constrained. And even then, Natural Law, like the law law, often runs head on into conflict with human nature (Prohibition). One might argue that Prohibition found it's roots in Natural Law, but I disagree. For prohibitionists to wrap themselves in the flag of Natural Law is no more legitimate than it would be for Republicans to claim the flag as their own.

toicism 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. — Ciceronianus the White

So let's contrast this with a couple of statements from another thread:

Surely you’d grant that morality derives from respect for others, not for oneself... — Banno

I think, to use these terms, morality derives respect (care) for oneself by one habitualizing (non-reciprocal) respect (care) for others. — 180 Proof

, what say you?

Contrast? It might better assist the discussion if you pointed out what it is that you wish contrasted.

So yes, 180 and I write with brevity. Tully the Colourless tends to great erudition. Is that what you have in mind?

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

Do you agree that laws should be moral? If not what could be the criteria for legal reform?

My statement which you quote is quite consistent with @Cicerionanus the White's reference to stoicism. 'Cultivating virtues' is synonymous with how I use habitualizing in that quote.

If I'm understanding you and correctly, you both come from the perspective that morality has to do with the way we treat others and is motivated by care for others.

I'm saying there are other approaches to morality where care for others plays a minor part, if any at all, yet the person who adheres to such morality behaves similarly as the one who is motivated by care for others. Two examples of such systems of morality are Stoicism and Early Buddhism.

Yeah, there are other approaches. Speaking for myself, self-care via non-reciprocal caring for others (the devil is certainly in the details) is also a viable, though inclusive or holistic, approach. I wouldn't call it the "motive", in my case, but an application or means: the end is self-care – cultivating virtuous habits (arete) – and means is (the positive feedback loop of) non-reciprocal caring for others.

What are some examples of that?
Would encouraging others not to drink and drive (so that they don't run you over) be an example of your approach to morality?

How is your approach to morality similar or different to the one sketched out here in this Early Buddhist text?

We don't need laws or police, we need mercenaries who pay to accept legal contracts!

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. — Ciceronianus the White

Can you explain to me exactly where, or how a law exists? In other words, where is the law in relation to interpretation? Is the law what is written on the paper? If so, what distinguishes a law from other things written on paper? Are all written things laws? If it is the interpretation, the meaning derived by the reader, how do you account for differences? Is each different interpretation a different law? Or do you assume a separate perfect, ideal interpretation which is the law.

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.

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.

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.

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. — James Riley

I don't think it does merely acknowledge any rights. It establishes some as lawful, but in all cases subject to the establishing power of the constitution itself, and via that, the "people." And I think Marshall did not say what you have quoted him as saying, or I cannot find it. He did say, "“[W]e must never forget that it is a constitution we are expounding," from McCulloch v. Maryland.

And I think Marshall did not say what you have quoted him as saying, or I cannot find it. — tim wood

"It is emphatically the province and duty of the judicial department to say what the law is." Marbury vs. Madison. Chief Justice Marshall delivered the opinion of the Court. 1803.

It establishes some as lawful, but in all cases subject to the establishing power of the constitution itself, and via that, the "people." — tim wood

To the extent it establishes powers in the Articles (taxes, make laws, etc.), those powers are expresly limited by rights acknowledged in the Bill of Rights (and Amendments). The rights which predate the Constitution are those which the Bill of Rights says the governmental powers just granted in the Articles can not be exercised in derogation of. So, while it creates a right to counsel, for example, it does not create the right to keep and bear arms, or the right to freedom of speech, etc. Those rights exist regardless, and to all men, everywhere, even in China. And, because there are other rights not created by or addressed in the Constitution, there is the 9th and 10th Amendment.

Parenting. Elder care. Child adoption. Donating blood or organs. Solidarity (civil disobedience / mass protests) for social justice. Speaking truth to power. Animal Rescue. Searching for missing children. Teaching. Hospice care. Sustainable Farming. Social Investing. Abolishing capital punishment and/or human trafficking. Etcetera ... Examples of non-reciprocal caring for others / more-than-oneself. (Other moral approaches, of course, can account for these practices but not many for the explicit purpose of cultivating self care.)

I am not well versed in the subject of the philosophy of law, but I would think there is a distinction between the law as it is written and the question of what the law should be, that is, the law as it in interpreted and the task of the law maker. But this distinction is not always so clear cut. There are interpretive differences which cannot simply be resolved by pointing to what is written or precedent. There are accusations on both sides today of judicial activism.

To the extent it establishes powers in the Articles (taxes, make laws, etc.), those powers are expressly limited by rights acknowledged in the Bill of Rights (and Amendments). — James Riley

The simplest reply here is to point out that neither you nor I have any such rights under the Constitution. Arguably in the Declaration are acknowledged the the "unalienable" rights, but all others are alienated to secure these rights.

From the Constitution, Art. 1, § 8. "To make all laws...". And Art. 6. "This Constitution.., shall be the supreme law of the land."

You may feel and argue you have certain rights as a human being and that government could violate them. Jefferson would have agreed, adding that revolution was the remedy when law failed. And Webster, in arguing against secessionist's claim that secession was a right under the Constitution and thereby "justified."

And where rights and laws compete or conflict, there is recourse to constitutional remedies . The bottom line is that the people through either or both their legislative and judicial powers, or the power of amendment, and subject to the constraint of checks and balances, can do what it likes. Individuals, acting severally or jointly can break, and have broken, laws to make test cases. And some have tried "revolution," but only the winners of revolutions get to call them revolutions.

So an individual can break the law if he or she chooses. In every such case one hopes there is some merit in the claims thereby represented, at least enough to elevate the action in the eyes of an enlightened justice out of the realm of the merely criminal. But it can never stand that the constitution is held to constitutionally violate itself. For how could it be that a part of the law would be superior to the law itself?

The simplest reply here is to point out that neither you nor I have any such rights under the Constitution. — tim wood

We do. The rights exist, and the framers came along and created a Constitution that reduce them to writing and forbade violation thereof by government. As far as the "law is the law" is concerned, those rights exist "under" the Constitution. But that is the law talking to itself. The rights exist anyway and the framers knew it.

But it can never stand that the constitution is held to constitutionally violate itself. For how could it be that a part of the law would be superior to the law itself? — tim wood

I'm not sure where that argument is being made?

I'm not sure where that argument is being made? — James Riley

Implicit in supposing there are rights both superior to the Constitution and at the same time under the Constitution.

I do not argue that human/natural rights only came into being with the constitution, only that the constitution makes of them matters of and under law, and under its supremacy clauses makes them subordinate to law. What right would you have under the constitution to violate the constitution?

It must seem you confuse license with liberty and freedom. You can certainly falsely yell, "Fire!" in a crowded theater, but you should not. And under the law you run the risk of criminal and civil penalties if you do.

So perhaps your understanding of what a right is, or entails, is relevant. For me it cannot ever mean merely an entitlement to do whatever one is able to do.

I'm saying there are other approaches to morality where care for others plays a minor part, if any at all, yet the person who adheres to such morality behaves similarly as the one who is motivated by care for others. Two examples of such systems of morality are Stoicism and Early Buddhism. — baker

180 and I are aware of this. Stoicism and Buddhism have mush to recommend. Their virtue is not to be found in their metaethics, though. It is found in their commended actions.

Recent metaethics distinguishes three forms of ethical theory: deontology, consequentialism and virtue ethics. There are benefits and issues with all three. My sentiments, many years ago, were with consequentialism, which is attractive because it offers a autistic capacity to calculate moral values. My training, at least as an undergraduate, was in deontology, which promises ethical certainty but does not deliver.

So I've moved to virtue ethics, the most directly relevant of the three approaches.

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. — Ciceronianus the White

This is basically back to the "is/ ought" distinction. Laws, as it is with social conditions, working conditions, economic conditions, environmental conditions and so on just are what they; which says nothing about they ought to be, On the one hand this hardly needs pointing out, on the other hand the disparity between how things are and how they should be, should constantly be pointed out.

Implicit in supposing there are rights both superior to the Constitution and at the same time under the Constitution. — tim wood

That makes no sense. If there is a right to X which pre-exists it's reduction to writing, that act of writing does not then subordinate the right to the writing. It just places it under the pen. It still exists whether it has been written or not. A deed worthy of the Medal of Honor is done whether the Medal is conferred or not. What will you honor? The deed or the Medal?

I do not argue that human/natural rights only came into being with the constitution, only that the constitution makes of them matters of and under law, and under its supremacy clauses makes them subordinate to law. — tim wood

All the supremacy clauses in the world don't mean shit to that which exists in spite of them. Nevertheless, I think you misunderstand the Supremacy Clause: It does not subordinate that which it exalts. Rather, it subordinates all else to that which it exalts.

What right would you have under the constitution to violate the constitution? — tim wood

To the extent your use of the term "under" means "subordinate", my rights don't exist under the Constitution.

It must seem you confuse license with liberty and freedom. — tim wood

I do not confuse those concepts, nor have they arisen in this argument. If you would like to go there, by all means, do so and I will engage.

You can certainly falsely yell, "Fire!" in a crowded theater, but you should not. And under the law you run the risk of criminal and civil penalties if you do. — tim wood

? I've never argued the state could not smack me with a stick. Nor have I argued that Natural Law would allow me to unnecessarily endanger others. Indeed, to the extent the Constitution or any laws promulgated pursuant thereto would infringe upon another right, it is again riding on the coat tails of Natural Law. For example, there is a First Amendment, but any limitation thereon comes from a common law qualification that is in accord with Natural Law. Hence the dangers of pretending to reduce all Natural Law to writing. You are bound to leave something out. Again, though, there is the 9th and 10th and common law and statutes that try to plug the holes in man's pretention.

So perhaps your understanding of what a right is, or entails, is relevant. For me it cannot ever mean merely an entitlement to do whatever one is able to do. — tim wood

Again, I'm not sure where such an argument was made.

Anyway, my understanding of all this is what has often been referred to as "hornbook law." So common and well established that I have not bothered to go dig up any citations in support thereof. It's just ingrained. But I went and took a look at some sources I'm embarrassed to even mention here and glommed onto an old term you might look up: Substantive rights (as compared to process rights).