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

Correct, a parent is not it's child. The law springs from Natural Law.

Which was when? Where? — Ciceronianus the White

When the first law was written. You name where. Anywhere.

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.

It seems to me this thread caught on the rocks of a failure to agree on definitions of terms, and being beaten to pieces by that disagreement. Which would appear to contain its own irony because every law I've encountered contains a definitions section, the viability of that law often dependent on them and how well they were crafted.

Underlying I find - subject to refinement - two related axes. Reason/principle and feeling/emotive. By "principle" and "emotive" i merely mean reason and feeling, respectively, applied. Among us are, apparently, those who hold themselves to be the artificers of law in that they are at all times themselves the authors and authorities of the law that applies to them, and that social law is simply an inconvenient lip-service obligation to power, when that power is present. We might even call this wilderness law. This law, it seems to me, is felt, and when that feeling elevated to law, is essentially emotive, a matter of feeling.

Social law seems more a thing reasoned from the experience of the community, and when adopted, is essentially principled. From wilderness to community is movement from the individual to community. Socrates the exemplar of this movement in one person, and no doubt there are many, many other examples. Any soldier, it seems to me, must incorporate this movement.

Any merit in this division? Are the two oppositions reconcilable at any point? Is one superior to the other? The answer would seem to depend. On circumstances and on what a man, or woman, supposes he or she is. But what is undeniable on most of the planet is that all are subject to community law, even when the setting is wild. This argues an ascendancy of reason and principle over feeling - although neither denial nor destruction of feeling. And this the civilization of both individual and community. The man is inevitably himself civilized notwithstanding his circumstance. Denial or rejection of which, when unjustified, a kind of suicide, at least denial of important parts of self.

I understand "natural law" to be simply the expression of what feels right to this person or that person. And that feeling never goes away. But it is no basis at all for community law, though it inform it, which falls under principled reason.

If you disagree with those definitions, so be it. — Ciceronianus the White

Alright, I'll crack open my dictionary as well:

Natural law is defined as "a body of unchanging moral principles regarded as a basis for all human conduct."

Positive law is defined as "statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want. Compare with natural law."

So, my questions are these:

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?

I'm beginning to think that the reason you argue against the existence of natural law is because you define "law" and "positive law" synonymously, making the word "positive" superfluous. To the extent my thought here is correct, I would agree with you that there is no such thing as natural "law" to the extent "law" is being defined as "positive law," which would equate by substitution to the term "natural positive law," which surely there is no such thing.

How do you know matters were settled by the persuasion of reason prior to the time the first law was written? — Ciceronianus the White

To the extent the stick was used, they weren't. To the extent the stick was not required, agreement came by persuasion which is based on reason. Study of indigenous societies that don't have law are examples.

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. — Ciceronianus the White

You lawyers do indeed practice Natural Law, and you are Natural Lawyers. Someone just, obviously, had to write it down for you. As said long ago, the law is for people who can't take a hint. As to law school, speak for yourself. The law school I went to, and the bar I was a member of, and the test I took, was composed of a huge chunk of ethics. In fact, even to the extent that zealous advocacy was supposed to produce a result, that result was supposed to be just. Hence the law and rule framework within which we worked. You know, for those who didn't know better.

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.

All which you describe (from feeling to reason; from individual to community) precedes the reduction of it to writing, and it constitutes Natural Law (whether good or bad, right or wrong). It only becomes law when reduced to writing. The writing is the law. Or the law law. And it does not stand on it's own or spring from the ether. And it too can be good for bad or right or wrong.

*sigh* If you say so.

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. — Ciceronianus the White

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

The idea that zealous advocacy confined by law, will somehow produce a legal result is like the forgiveness of sin for Christians: If you don't mind your p's and q's you will think that you are free to do whatever because, well, you're forgiven. The lawyer can do whatever, sans ethics, because, well, he's just pursuing the interests of his client. Like the corporation is legally charged with making money for the shareholders and can thus point to that mandate as it does something unethical.

But in the end, they all come back to Natural Law which forms the basis of the confines of the law, in equity or at law. But yeah, there are a lot of folks like Holmes running around thinking they are the law and they are ethics. And that is why the stick must be used. They have no reason.

*sigh* If you say so. — tim wood

I do.

Of course you do. but I do not get the distinctions you're making, or why, while I find mine - always subject to refinement and correction - compelling and substantive. And the only guess I can make is that you both want to be your own law, and at the same time to be both the law and correct. And in a community you cannot have it both ways; and as the community these days extends its principle into the wilderness, you cannot have it there either. That is, you can be an in/at law, or an outlaw. You seem to be the latter, but with the sense not act on it - or you haven't yet been caught.

I do not get the distinctions you're making, or why, — tim wood

This thread went down that rabbit hole at the beginning. I could not believe the OP would be saying nothing more than X=X (i.e. the law is the law is the law) so I tried to understand what he meant beyond that. When I took a stab at an alternative, I was reigned in. So I was left with the only possible distinction left and that is this: The stick exists. The X in the sand exists. The person who wields the stick honestly thinks there is an independent nexus between the X and the stick. I don't. So, while the stick exists and he can hit me with it, I see him hitting me with the stick and he see's himself hitting me with X. He recognizes his X (X=X=X). I do not. If he wants obedience beyond coercion, he must appeal to reason. Failure to do so leaves him with nothing but a stick. Most of your post was pre-X. Good stuff.

For me, natural law is not law. "Moral principles" are not law. They're principles. — Ciceronianus the White

It doesn't appear to me that you're arguing that moral principles are not law. You're arguing that the law is comprised of "statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want." Ergo, if a legislature laid down a statute that said all laws must be moral, such would be the "law" according to your argument. It's for that reason I've asked the question why you find it relevant that US law doesn't happen to ask if a law is moral when it evaluates whether it is a legitimate law. Under positive law, it could ask such a question if there were a positive law that required it.

Complicating matters is the fact that laws are not all the products of legislatures with clear dictates, but some are judicially created and subject to much nuance with unclear boundaries. Since that is the case, an argument can be made, especially on the Constitutional interpretation level, that laws must pass moral muster in order to be declared Constitutional. You may argue that is a perverse way to view Constitutional interpretation, but should it eventually be judicially declared that an unapologetic moral evaluation be conducted to determine Constitutional legitimacy, then that would be a positive law institutionalization of natural law. I see nothing inconsistent with there being a positive law requirement for moral evaluation of law, which is at some level what happens in many cases throughout legal interpretation, in some nations explicitly and in other (like our own) not as explicitly.

I say all this because, as it seems, you're not objecting to what the law says. You're objecting to any claim that the law comes from anywhere other than the hand of man. You're also not denying that there are rules that derive from a source beyond man. You just refuse to call those rules "laws."

The 'law' can be construed narrowly or more widely depending on what one is asking. If one is asking whether doing X is legal then we look to what the law states. But if you are asking, as you did about:

...the nature of the law and its operation. — Ciceronianus the White

then the answer that the law is whatever the law says it is is unsatisfactory. The question of the nature of the law asks about from what it derives its authority and legitimacy, it social and political function, its responsibility to the people, its source and power, etc.

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.

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. — Ciceronianus the White

First, you assume too much. Second, it's not about expectation. Natural Law has nothing to do with expectation.

If someone smacks you upside the head for no apparent reason, then, even beyond the calmest, coolest most objective view of the situation, you will most probably have a feeling about the action or the person who executed the action. I will gareeonfreakingtee you, you will not have that feeling because someone told you to have that feeling. You will not have that feeling because it is written that you should. You will not have that feeling because the law said you would. You will have that feeling because of Natural Law. Natural Law tells you "That ain't right!" Most folks would agree with you, and at some point, when we learned how to write, somebody put it in writing just in case some idiot didn't know any better than to go around cuffing people upside the head for no reason. The law itself is better than that idiot and at least pretends to have a reason before punishing some idiot. That reason is Natural Law articulated.

Natural law is defined as "a body of unchanging moral principles regarded as a basis for all human conduct."

Positive law is defined as "statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want. Compare with natural law." — Hanover

:100: I'm thinking that about nails it. Part of "human conduct" is "laying down statutes."

I appreciate the reply!

Let me try this. What I understand by the x=x=x (questionable metaphor alert) is akin to getting a meal in a restaurant. What went into making it may, could, even arguably should be of interest, but all that is nothing as to the meal itself: that is what it is and no prior circumstance or condition can alter that. Whether you consume it or not is up to you. But the consequences of either choice (where the metaphor breaks down) can be significant.

Or, what the law is, is what it says it is - the meal served. If you're pulled over for speeding on US 90 in Montana, at 95 mph, it will avail you nothing to argue that a mere 25 years earlier the limit was "reasonable and prudent," and your speed was both. This my understanding.

The person who wields the stick honestly thinks there is an independent nexus between the X and the stick. I don't. So, while the stick exists and he can hit me with it, I see him hitting me with the stick and he see's himself hitting me with X. He recognizes his X (X=X=X). I do not. If he wants obedience beyond coercion, he must appeal to reason. Failure to do so leaves him with nothing but a stick. — James Riley

Agreed - or, understood, not exactly the same thing. But does this not leave you with reason as the nexus? And if reason, then whose, what for, and when? Reason yields to reason, lesser to greater. The policeman may be wrong and sometimes is, but the remedy correctly applied is after the fact. Incorrectly applied usually just forces the policeman to be more of a policeman. And this the civil contract. Is it ever broken? All the time! But they, and the law, are us (pace Walt Kelly). And so there is a reasoned and principled basis for the law. What happened in the kitchen of interest, but usually not of any governance. You're a free person; you always have a choice, but a reasoned freedom constrains you to duty. Or you owe a debt for stepping out beyond it.

And arguably the guarantors of good law are the person and peoples who will step out. And ideally that a duty too, but only as well-reasoned.

I say all this because, as it seems, you're not objecting to what the law says. You're objecting to any claim that the law comes from anywhere other than the hand of man. You're also not denying that there are rules that derive from a source beyond man. You just refuse to call those rules "laws." — Hanover

I object to what many laws say. Alas, the fact I object to them has nothing to do with whether or not they exist.

I think it's a misuse of language to call something a law which doesn't have any resemblance to a positive law. I think it's possible to make reasonable judgments, of fact and value, and other matters in the scope of human conduct, but don't believe these judgments derive from a "source beyond man" or that in making such judgments we act in accordance with "laws" adopted or imposed by God. Nature, as I understand it, adopts nothing; it makes no laws, it simply is, and we're a part of it. We know things and can infer things from our interaction with the rest of Nature, but that doesn't mean that there are laws inherent in it which govern how we should behave in the sense that a law would.

You will have that feeling because of Natural Law. — James Riley

I wonder why you insist on calling such feelings "Natural Law."

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. — Ciceronianus the White

Seems obvious. Hence, the question "Is that law good?" remains open.

I wonder why you insist on calling such feelings "Natural Law." — Ciceronianus the White

Wonder no longer: "Natural law is defined as "a body of unchanging moral principles regarded as a basis for all human conduct." See above.

What I understand by the x=x=x (questionable metaphor alert) is akin to getting a meal in a restaurant. What went into making it may, could, even arguably should be of interest, but all that is nothing as to the meal itself: that is what it is and no prior circumstance or condition can alter that. — tim wood

That analogy breaks down because the meal is the sum of it's parts. Whereas the law is not the sum of Natural Law. It is a mere pretender to it. To straighten your analogy, no one would say the menu is the meal or the ingredients. The law is a menu.

As to the balance of your post, that goes to the issue of the adequacy of the law which is not in question. I think both "sides" to this debate agree that Natural Law and mere law can both be flawed, inadequate to a task or otherwise disagreed upon.

"a body of unchanging moral principles regarded as a basis for all human conduct." — James Riley

...and the obvious point is that moral principles are not law.

and the obvious point is that moral principles are not law. — Banno

No one ever said they were. They are Natural Law, not mere law. I'm not sure if you've been following this thread, but we have been using the term "law" to refer to statutory, Constitutional, or written law, as opposed to Natural Law.

Whereas the law is not the sum of Natural Law. It is a mere pretender to it. — James Riley

Do I have to come there and we have an arm-twisting contest on whose words we use? What is the substance of your point? Even, do you understand your own point? is it a claim or reasoned? You can have your claims, but what is your reason? What inhabits natural law that finds no expression in "mere" law? Is it the codifying, which straitens natural law?

What does natural law permit that mere, written law prohibits or eliminates?

How to push morality into laws back door..

Ahhh a philosophy of law question and I totally missed it.... I apologise for not reading through 8 pages of text, I read the first two. So it may be that some of the points I will cover here will already been covered before, my apologies in advance

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.

So wrote John Austin in the 19th century, by reputation the creator of legal positivism. So thinks Ciceronianus, the author of this post.

I think any practicing lawyer, or judge, would accept the statement made by Austin quoted above without hesitation. — Ciceronianus the White

Well, not where I am from, at least not wholesale. The problem is not that simple, it turns out to be rather complex but very worthwhile to think through. A bit like Hegel's writings actually. ;)
Making the distinction is of course appealing. As Hart says, it is a mere matter of methodology. We at least know what we study when we differentiate between what is law, that which is accepted as a binding enforceable set of rules, and that which is not law. Standards of morality, aspiration, all kinds of things, but not law. So far so good but Hart and Austin also accept that a characteristic of law is that it demand compliance. From where does it gain that normative force?

Austin tried to answer it and his answer basically comes down to violence. Law gains its normative force because it is issued by the sovereign. Well Hart made short work of that and said that if that were true, the law would be no different than the command of a leader of a gang of bandits. We do not see law in that way. We do not see it as just commands, but also as a legitimate command. Now where does it gain legitimacy from According to both Kelsen and Hart it came from higher law. Law is legitimate when it is based on a higher law. So for instance the judge's conviction of a murderer rests on the model criminal code and the model criminal code in turn rests on the consitutions.... turtles all the way down!

And yes also with the turtle problem it has to end somewhere. Hart offers as the end point the 'rule of recognition'. The rule of recognition, being the putative rule that rules them all might be the constitution but if we ask on what the constitution is based, Hart points out that in the end it is based on the acceptance of the legal professionals. Lawyers recognise it as law. So in the end his explanation for laws legitimacy is sociological, it rests on the acceptance of the people. They accept a certain government and consider its edicts to be binding and therefore they come to be. When revolution comes after a time of turmoil a new rule of recognition will come to be accepted and in turn becomes the law of the land.

Now that means positivism, in last instance, says that law is what law does, better, what lawyers do. that left him open to what I consider a deadly objection for wholesale positivism. If we say that law is what lawyers do that let's see what they do, said Ronny Dworkin. When we analyse cases (the famous case Riggs v Palmer, easy to find). In Riggs v Palmer the court argued that a murderer cannot claim the inheriitance of the person he murdered. However, there was nothing in the written law that prevented him from doing so. In fact the law of inheritance was crystal clear on the issue. The courts invoked a legal principle: "one should not legally benefit from one's own crimes" and withheld the inheritance. If we hold on to the principe of ciceronianus that law is law the courts have acted unlawfully. Did they? even positivists are hard pressed here. Dworkin argued that when law is as lawyers do we have to accept legal principles as a part of law.

Then we get a number of problems back. Where do these principles come from? Dworkin was adamant in saying that they are legal rpinciples, not just any old principle some judge thought up somewhere will do. They must have a certain legal basis as a kind of foundation of our legal system. However they might well be unwritten. So there goes the principle 'law is law', at least now we have 'law is law including unwritten legal principles'. and how do we recognise those principles and what is the basis for them? It is clear that a legal principle is not a rule, if a rule is not adhered to, than it is not a rule. But the principle "one should not benefit from one's own crime" is not always adhered to, not even by law itself. The thief becomes the owner of a good at some point, legitiised by the statute of limitations, so here the law itself facilitates crime! So not, it is not a rule. Other than rules, which do not need a basis in morality, some sort of morality does gird legal principles. How do we know and recognise a legal principle? Well because we know the foundations of our law, but these are not chosen willy nilly. They have a basis... well morality and justice. And that complicates matters. If unrwitten stuff is part of law and f this unwritten stuff has its basis not in the commands of the sovereign or the rule of recognition but in morality than the boundary between law and morality is blurred and the saying the existence of law is independent of morality becomes questionable.

So, positivism does not provide a good account of where legitimacy comes from. It leaves it open to all kinds of objections. At best its origins are ineffable and at worst it derives its normative force by virtue of being law itself and than we get the famous objections against national socialist law for instance. So no, austin's position is by no means totally accepted at least not in the continental world.

Not all of those considered legal philosophers were lawyers, alas. I don't think Aristotle, Aquinas, Hobbes, Rousseau or Mill were lawyers. The mere thought of Hegel being an attorney inspires terror. Cicero, Grotius, Bentham, Montesquieu, Austin, Holmes, Hart and Dworkin were lawyers (Monty was a judge). — Ciceronianus the White

No, but all of these had their influence of the philosophical history of ideas on law and all of those should be remembered for the greatness of their contribution. Aristotle coined a fundamental definition of justice, Hegel waged debates with Von Savigny, the greatest lawyer of the 19th century, Hobbes might well have influenced Austin's command theory of law, Rousseau is still important for social contract theory and even Aquinas famous saying 'lex iniusta no est lex' has adherents. I actually might even think it is true. Has the national socialist law against calling Hitler a mass murderer ever been law? Yes says Hart, no says Radbruch. It is important because if we recognise it as law how can we ask the one that obeys that law and reports an offender to the police after which he is shot, not to obey it? Or should he have known that this rule lacks the character of law? That it has no normative force because it violates principles of justice everyone knows? I have not decided on m position yet, but it certainly is not positivism hook line and sinker...

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.
— Ciceronianus the White

Seems obvious. Hence, the question "Is that law good?" remains open. — Banno

That much is obvious. The positive law doesn't claim to be necessarily moral. Natural law does. In fact, natural law is defined as that which is moral. The quibble, after these 8 pages, appears to be how comfortable one is in claiming that natural law is law or whether it's not law. I think of natural law as law because that's what it's called. Apparently others insist that only positive law is law, which makes me wonder what the word "positive" means, considering "positive law" and "law" seem to be the same thing.

Do I have to come there and we have an arm-twisting contest on whose words we use? — tim wood

No, we can use the definitions found in the dictionary, as set forth by Hanover, above.

What is the substance of your point? — tim wood

I was trying to find the substance of Ciceronianus the White's point, as just explained to you.

Even, do you understand your own point? — tim wood

Yes. Someone was courteous enough to link the summary of my point on page six of this thread but I'll need a little schooling to figure out how to do that. I just assumed you'd been reading the thread and saw that.

is it a claim or reasoned? — tim wood

It's reasoned. See above.

You can have your claims, but what is your reason? — tim wood

Asked and answered.

What inhabits natural law that finds no expression in "mere" law? — tim wood

All that mere law has yet to address in it's historical march toward codifying Natural Law.

What does natural law permit that mere, written law prohibits or eliminates? — tim wood

You've got it backwards. Mere law is trying to address Natural Law through the use of prohibitions, acknowledgements, eliminations, etc. That's what distinguishes it from Natural Law.