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Old 07-15-2018, 07:55 PM   #601
Do0rDoNot
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Originally Posted by Original Position View Post
I brought this up, so to clarify, legal positivism does not imply that natural rights don't exist. Legal positivism is a theory about legal ontology. Alternatively, legal positivism gives a theory about the conditions necessary for something to be considered law. What is distinctive about legal positivism compared to natural law theories of law, is that legal positivists do not include include a moral component as a condition for something being law, and natural law proponents do. So a legal positivist would that say the CRA is the law of the land in the fullest sense, regardless of their view of its merits as law, whereas a natural law theorist who believes the CRA conflicts with our natural rights might say something like, the CRA is not well-formed law and so doesn't have any legal authority. Notice that this doesn't imply that the legal positivist doesn't believe that we have natural rights that are infringed upon by the CRA.
A legal positivist would also believe that segregation, miscegenation laws and potentially secession were all laws of the land too, as well as manifest destiny and slavery, when looking at jurisdiction. You can't as a positivist make moral claims about what laws should be at all, without appealing to natural rights or absolute morality. I also have never heard about natural rights theory being compatible with positivism, considering positivism came into existence as an alternative to it.


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Also, while it is not quite accurate to call Hobbes a legal positivist, he is a clear forerunner of many of the same themes, including most pertinently the claim that the ontology of law is conventional, so I wouldn't appeal to Bentham coming after the Constitution as an argument here.
Lol sure you wouldn't because it destroys your thesis that the constitution isnt about natural rights, when it certainly is. At the very least it was inspired immensely more by Locke than by Hobbes.

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And again, don't turn a conditional into a biconditional. There are more than just two theories of legal ontology.
I dont need to be totally comprehensive in my analysis to refrain from being biconditional. I left out interpretivism for brevity sake.


That said, the United states legal system is not positivist by definition, as there is no executive with ultimate authority to make, create and enforce laws. The government in the United states enforces laws, but the people elect representatives to create the laws for them.
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Old 07-15-2018, 08:01 PM   #602
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Re: Gay wedding cakes

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Originally Posted by Do0rDoNot View Post
It doesn't have to. Abstractions dont have to exist in reality to be logically true or possible.
Sure, but I'm asking you to offer some argument for your claim that the rights you are describing as "natural" do in fact exist. So far you've been implicitly leaning on the idea that those rights exist because they are natural, which is false. Now you seem to be arguing that your view is correct because it's possibly true, or because you are able to conceptualize this abstract ideal of man, but that's not very convincing. I can easily imagine the perfect collectivist utopia in which almost no concept of the individual exists at all, but it doesn't follow that any claim about such a collectivist vision is true.

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My argument is when boiled down to first principles ala descartes human experience is fundamentally and primarily the relationship between a human being and his own mind.
Yes, I can see that if you begin with a solipsistic anthropology that you will arrive at a solipsistic conclusion. What you haven't offered is any reason why anyone should think Descartes' argument about the epistemological certainty of one's own existence is relevant to political philosophy.

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Originally Posted by Do0rDoNot View Post
What you seem to be saying is that human beings cannot be removed from the equation, which is totally untrue. You can remove yourself from all humans and all society right now and move to remote parts of your own country.
This has the same problem as your camping analogy. If we're talking about politics we're talking about humans as social creatures. There are no politics, no rights, and no norms for some completely isolated individual. What purpose could they have? But human beings do not exist in any stable way as isolated individuals. There is no population in the entire world of "lone wolf" humans over anything other than very short time periods, and never has been. It is not a natural state for human beings to live in. The entire reason political philosophy exists to begin with is because human beings live together. Esse est coesse, "to be is to be together", as a Christian existentialist philosopher once put it. This is not the conclusion of some abstract theory, it's a conclusion from empirical evidence.

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Originally Posted by Do0rDoNot View Post
The law, the constitution, is certainly based on natural rights theory
The qualifier "legally relevant", in the OrP post that I quoted, is relevant here. There is no doubt that the idea of "natural rights" is important to the intellectual history of the constitution. But I asked whether there had ever been a case where a law was struck down because it violated natural rights because I'm interested in the actual functioning of the law. You yourself said that what matters is "how it really is". If it is the case that no court will accept a challenge to CRA on the basis that it violates a natural right then natural rights are not relevant to the actual law. Since I'm unaware of a court accepting any challenge to any law on such grounds, I doubt that such a challenge is legally possible, and thus that natural rights are legally relevant.
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Old 07-15-2018, 08:45 PM   #603
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Re: Gay wedding cakes

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You do? What about the converse, that you are free to not associate or trade with people you dont want to. This really has to be regardless of reason, or you're crossing into moralism and thought crime.
Yes, I do, as I have stated previously ITT. I also support thought crime and moralism as you define them.

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So you're for repealing the CRA then?
No.

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Originally Posted by Do0rDoNot View Post
You're contradicting yourself again here because as a legal positivist you should be perfectly alright with the segregationist norms of certain parts of southern society and laws derived thereof by the states that had authority over rules not laid out to the federal government in the constitution. The CRA had to be hidden in the commerce code, because an amendment was not possible due to conflict with other amendments.
Legal positivism is a theory about law, not morality. It doesn't imply that segregation is good or bad or that I should be alright with the prevailing norms of a society. That is just your own misunderstanding.

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Originally Posted by Do0rDoNot View Post
This all has deep roots in the civil war. Interestingly, you should also be for the right of the southern states to decide for themselves the slavery issue or to distinguish themselves as a separate society with it's own norms and laws as well, as a positivist.
Legal positivism is about law, not morality.

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Originally Posted by Do0rDoNot View Post
Argument from consensus. As a positivist you can make this claim, but you have to follow it through and accept both segregation and slavery as fully legal and justified if you want to be consistent.
Yes, segregation and slavery were legal, although not morally justified. The CRA was meant to change the law so that segregation became illegal. That doesn't imply that segregation was good or justified previously, only that it was law.

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Originally Posted by Do0rDoNot View Post
The legal positivist view? Um probably the part where the major philosopher of positivism first writing was challenging the legitimacy of the declaration of independence by attacking its philosophy of natural rights!!!
Gee, I'm not familiar with that statute.

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In a vacuum, yes. What follows from atheism leads to inconsistency with experienced reality though.
Okay. Maybe I misremember you being agnostic about theism/atheism in our previous conversation about morality.
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That's pretty rich, considering as a positivist there is no relation between morality and law. There you go, trying to be a natural law theorist and legal positivist at the same time again.
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There are many ways to derive the claim that all men are (or should be) morally equal (let alone equal under the law) without assuming that all men have natural rights. I even pointed to an example earlier in utilitarian philosophy.
Try again.

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I assure you that you are.
Okay.

Also, don't be a coward. If you make an accusation, back it up:

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Name and demonstrate that even one principle I accept is self-contradictory.
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Old 07-15-2018, 09:22 PM   #604
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Re: Gay wedding cakes

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Originally Posted by Do0rDoNot View Post
A legal positivist would also believe that segregation, miscegenation laws and potentially secession were all laws of the land too, as well as manifest destiny and slavery, when looking at jurisdiction. You can't as a positivist make moral claims about what laws should be at all, without appealing to natural rights or absolute morality. I also have never heard about natural rights theory being compatible with positivism, considering positivism came into existence as an alternative to it.
No, you just don't understand the theory. A legal positivist would acknowledge that segregation, miscegenation laws, slavery, etc could all be in principle law and in fact were law in at least parts of the US at various times. However, they deny that we can derive from their being law, that they are morally good law. They might in fact be quite morally evil (as these laws were).

For example, maybe you think the DH rule in baseball is a bad rule. Fine. However, it is still a rule. That is, everything that is required to make an official baseball rule has been met by the DH rule, and so it is a part of the game now, regardless of your view on its merits. Similarly for slavery laws. Everything that was required to make an official law of Georgia was met by the slavery law, and so it was part of the laws of Georgia, regardless of your views on its merits.

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Lol sure you wouldn't because it destroys your thesis that the constitution isnt about natural rights, when it certainly is. At the very least it was inspired immensely more by Locke than by Hobbes.
I have never claimed this. I asked for you to show me that the Constitution assumes this in a legally relevant way and so far you haven't.

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I dont need to be totally comprehensive in my analysis to refrain from being biconditional. I left out interpretivism for brevity sake.
True, but your conclusions should still reflect this lack of comprehension, and yours don't. Also, fyi, legal interpretivism is a variety of natural law.

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That said, the United states legal system is not positivist by definition, as there is no executive with ultimate authority to make, create and enforce laws. The government in the United states enforces laws, but the people elect representatives to create the laws for them.
You use the phrase "by definition" too often. No it isn't, nor do I see how it possibly could be. You might not be interested in strategy, but strategy is interested in you.
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Old 07-15-2018, 10:14 PM   #605
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Re: Gay wedding cakes

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Sure, but I'm asking you to offer some argument for your claim that the rights you are describing as "natural" do in fact exist.
I've offered the argument a dozen times. Natural rights are endowed to us by nature or a Creator. It doesn't matter which. I'll take the evolutionary side, since it's closer to what you probably believe. Nature created us, and instilled in us desires. Those desires include freedom in the maximum possible sense, pursual of survival, attempts to replicate, raise a family, form beliefs about the nature of reality, engage in trade, acquire possessions that meet our ends, move freely, etc etc. You could even boil it down to simple replication and survival and the necessary mechanisms to meet those ends if you want. Since nature created us that way, we are entitled by it to pursue the desires that nature herself gives us. If one person has those entitlements, then everyone does. If everyone does, then no one can take away the entitlements of anyone else, because they are not given by people, but by nature (they are inalienable).


You can replace nature with God if you're a theist; it changes nothing.

Now you can disagree with the state of natural rights, and say we don't have any. That's fine. What you cannot do is beg the question by saying 'laws should be this way because of this principle' in the same sentence as 'natural rights don't exist' because the principle you are appealing to is either a moral law or a natural law. About all you could say regarding how laws should be, 'the law should be this way because most people think it should be' which puts you in no better a moral stance than a segregationist or jew-excluding nazi.
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Old 07-15-2018, 10:24 PM   #606
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Re: Gay wedding cakes

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Originally Posted by Original Position View Post
Yes, I do, as I have stated previously ITT. I also support thought crime and moralism as you define them.



No.
You don't see how this conflicts? You are absolutely pro-free association and pro-free trade but also for constraining it? This is a contradiction. You claim legal positivism is your position, but borrow from the theory of natural rights to justify your moral claims about the law. Another contradiction.



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Legal positivism is a theory about law, not morality. It doesn't imply that segregation is good or bad or that I should be alright with the prevailing norms of a society. That is just your own misunderstanding.
I'm not misunderstanding it. You are making moral claims about what the law should be whilst simultaneously claiming to be a legal positivist. Upon what basis are you making claims about what the law should be
?


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Legal positivism is about law, not morality.
Correct, so either you are a legal positivist and make no moral claims about the law as it stands or you do make moral claims about the law. Which is it? I'm assuming you make the case that no one should be discriminated against because all men are created equal and are equal under the law. But oops, you're borrowing from natural law again. Can't do that and remain a positivist, sorry.

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Yes, segregation and slavery were legal, although not morally justified.
Upon what basis are you making this judgement? Both segregation and slavery were laws, and you're making moral claims about the law while claiming that law has no moral claims; a blatant contradiction. You can say that the state of slavery or segregation was immoral, but you can't make a positivist justification to change the law on moral grounds because by definition a positivist attaches no morality to laws.

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The CRA was meant to change the law so that segregation became illegal. That doesn't imply that segregation was good or justified previously, only that it was law.
Correct.

1) Upon what basis/principle are you judging the moral goodness of the CRA?

2) How can you simultaneously be for absolute free trade and free association (in your words)

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I think protecting these rights for everyone requires that the government should protect it for those people using them to do evil as well.
and for constraining it?

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Old 07-15-2018, 10:30 PM   #607
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Re: Gay wedding cakes

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Originally Posted by Original Position View Post
No, you just don't understand the theory. A legal positivist would acknowledge that segregation, miscegenation laws, slavery, etc could all be in principle law and in fact were law in at least parts of the US at various times. However, they deny that we can derive from their being law, that they are morally good law. They might in fact be quite morally evil (as these laws were).
Legal positivism is divorced from moral claims about law. In other words, it has no relation to morality whatsoever. The law is the law because of social norms and an ultimate authority to enforce it. Period. It is simply a social construct

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For example, maybe you think the DH rule in baseball is a bad rule. Fine. However, it is still a rule. That is, everything that is required to make an official baseball rule has been met by the DH rule, and so it is a part of the game now, regardless of your view on its merits. Similarly for slavery laws. Everything that was required to make an official law of Georgia was met by the slavery law, and so it was part of the laws of Georgia, regardless of your views on its merits.
Correct, it is socially constructed. You cannot say what the laws should be, as you would then be appealing to moral principes outside of the realm of law, as defined by what positivism is. It's up to you to justify how one does that without appealing to natural law and the natural rights derived from it. Go right ahead.





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legal interpretivism is a variety of natural law.
"Interpretivism refers to a doctrine of constitutional interpretation holding that judges must follow norms or values that expressly states or implies the language of the Constitution"

...and the Constitution isn't about natural law? This is too easy.
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Old 07-15-2018, 11:13 PM   #608
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Re: Gay wedding cakes

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Originally Posted by Do0rDoNot View Post
You don't see how this conflicts? You are absolutely pro-free association and pro-free trade but also for constraining it? This is a contradiction. You claim legal positivism is your position, but borrow from the theory of natural rights to justify your moral claims about the law. Another contradiction.
I have been very clear that I do not support an absolute right of free association or consumer discrimination. Your manichean approach to this topic reads me as making this claim whenever I talk about a right to x, but I have stated from the start that I think all rights are limited.

Second, even though I don't accept natural rights as real, such rights in no way contradict legal positivism. Thus, it is not a contradiction for a legal positivist to borrow from a theory of natural rights to justify moral claims (although you'll have to tell me where I'm doing this for me to accept this assertion).

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I'm not misunderstanding it. You are making moral claims about what the law should be whilst simultaneously claiming to be a legal positivist. Upon what basis are you making claims about what the law should be
?
On a moral basis unrelated to the nature of law. We discussed this in an earlier thread, where I laid out a model for materialist ethics. You should be able to realize this: Bentham is much more famous for his utilitarian moral views than his views on legal philosophy. He criticized many laws on this basis (for instance, he was an early proponent of laws against animal cruelty because of his utilitarianism).

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Correct, so either you are a legal positivist and make no moral claims about the law as it stands or you do make moral claims about the law. Which is it?
You can make moral claims about the law consistent with being a legal positivist. What you can't do is claim that a "law" isn't actually law because it conflicts with our natural moral rights or with utilitarian principles or fairness or God's will or any other moral claim. However, you can still argue that the law is an immoral law on these bases, and that we should get rid of it.

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Upon what basis are you making this judgement?
Laws permitting slavery are immoral because people shouldn't imprison, beat, rape, and murder other people. As I said, we've been over this at length, no need to cover the same ground.

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Correct.
<snip>
Hey, looks like you are a legal positivist as well.

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and for constraining it?
Yes, and for constraining the government as well.

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Originally Posted by Do0rDoNot View Post
Legal positivism is divorced from moral claims about law. In other words, it has no relation to morality whatsoever. The law is the law because of social norms and an ultimate authority to enforce it. Period. It is simply a social construct
Yes, and like other social constructs, can be either good or bad, even though those moral qualities are not constitutive of law.

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Correct, it is socially constructed. You cannot say what the laws should be, as you would then be appealing to moral principes outside of the realm of law, as defined by what positivism is. It's up to you to justify how one does that without appealing to natural law and the natural rights derived from it. Go right ahead.
Utilitarianism says that laws should made to do the most good for the most people. J.S. Mill wrote a famous defense of laws protecting liberty on this basis. Along with Bentham and Sidgewick, the utilitarians developed a very popular way of analyzing the morality of law on this consequentialist basis. There is no appeal to natural rights in utilitarianism btw.

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"Interpretivism refers to a doctrine of constitutional interpretation holding that judges must follow norms or values that expressly states or implies the language of the Constitution"

...and the Constitution isn't about natural law? This is too easy.
Interpretivism is wrong though.

Also, you still haven't found even a single contradiction...don't let yourself be made a liar.

EDIT: We're getting to the point where I'm just repeatedly trying to explain to you what legal positivism is. Do yourself a favor, take a break, and read this brief intro to legal philosophy from the Internet Encyclopedia of Philosophy (especially the section on Analytic Jurisprudence) before commenting further. There are lots of good arguments to be made against legal positivism, but you clearly do not even understand the questions it (or Natural Law theories either) are even trying to answer about law, and this prevents you from raising challenges to my view.

Last edited by Original Position; 07-15-2018 at 11:23 PM.
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Old 07-15-2018, 11:31 PM   #609
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Re: Gay wedding cakes

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Originally Posted by Original Position View Post
I have been very clear that I do not support an absolute right of free association or consumer discrimination.
I guess I misunderstood you then, because based on a normal reading of language you certainly did.

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Your manichean approach to this topic reads me as making this claim whenever I talk about a right to x, but I have stated from the start that I think all rights are limited.
But what you claim and the consistency of your argument, or at the very least the language you use, are at odds with each other.

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Second, even though I don't accept natural rights as real, such rights in no way contradict legal positivism.
Lol, yes they do. Natural rights are derived from natural law, and positivism is the rejection of natural law. Positivism is in direct and total opposition to natural law theory.

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Thus, it is not a contradiction for a legal positivist to borrow from a theory of natural rights to justify moral claims
Not moral claims, legal claims. And yes, it is an inconsistency.

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(although you'll have to tell me where I'm doing this for me to accept this assertion).
Again, I could be misunderstanding you based on the language you're using. You claim that the CRA is justified because all men are equal under the law. I haven't heard your justification of this stance, which is a moral stance. You cannot borrow from natural law to justify it and remain a positivist.



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On a moral basis unrelated to the nature of law.
Ok, so you are morally opposed to it. That's fine. What makes you justified in changing the law due to that moral stance, since as a positivist you attach no moral claims to laws?



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You can make moral claims about the law consistent with being a legal positivist.
You can make moral claims aside from legal claims. Bridging that with changing the law to suit your moral claims is what I'm asking you to do.

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What you can't do is claim that a "law" isn't actually law because it conflicts with our natural moral rights or with utilitarian principles or fairness
or God's will or any other moral claim.
What I can't do, or what legal positivists can't do? Because this is precisely what natural law theorists do. Moral claims are intimately attached to the legality of laws in natural law theory. If a law goes against the morality of natural law, it is an illegal law. Natural law is the supreme law by which man-made laws are judged.

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However, you can still argue that the law is an immoral law on these bases, and that we should get rid of it.
I don't think you can. Positivism changes laws based strictly on precedent and structure of the legal system. It does not make moral justifications for law changes.







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Hey, looks like you are a legal positivist as well.
No, I just agree with this assessment of what it is.

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Yes, and for constraining the government as well.
Justified on your moral claims, or something else?




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Utilitarianism says that laws should made to do the most good for the most people. J.S. Mill wrote a famous defense of laws protecting liberty on this basis. Along with Bentham and Sidgewick, the utilitarians developed a very popular way of analyzing the morality of law on this consequentialist basis. There is no appeal to natural rights in utilitarianism btw.
I'm surprised you subscribe to utilitarianism. Your intellect is of a higher order, in my opinion.

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Poor attempt to slander my knowledge base
Literally the first line: "Opposed to all forms of naturalism is legal positivism"

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Old 07-15-2018, 11:52 PM   #610
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Re: Gay wedding cakes

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EDIT: We're getting to the point where I'm just repeatedly trying to explain to you what legal positivism is. Do yourself a favor, take a break, and read this brief intro to legal philosophy from the Internet Encyclopedia of Philosophy (especially the section on Analytic Jurisprudence) before commenting further. There are lots of good arguments to be made against legal positivism, but you clearly do not even understand the questions it (or Natural Law theories either) are even trying to answer about law, and this prevents you from raising challenges to my view.
Ok, I have some time waiting for pizza

1)
Quote:
...it is a conceptual truth about law that legal validity can ultimately be explained in terms of criteria that are authoritative in virtue of some kind of social convention
OR

2)
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...principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society
OR

3)
Quote:
...Separability Thesis asserts that law and morality are conceptually distinct....any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the Separability Thesis.
So you'd be for the legality of slavery in 1861 then, especially if you were a member of a southern state, since, without debate,

by 1) slavery was a social convention, or
by 2) slavery was a legally allowed practice that was not refused by a sovereign or
by 3) any moral objections to it were irrelevant, up to this point in history?

Are you then against the war from the northern point of view, fought to keep the union together, as the South seceded on the basis that they believed this legal right was under threat with the election of Abraham Lincoln?
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Old 07-16-2018, 12:16 AM   #611
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Re: Gay wedding cakes

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Originally Posted by Do0rDoNot View Post
I guess I misunderstood you then, because based on a normal reading of language you certainly did.

But what you claim and the consistency of your argument, or at the very least the language you use, are at odds with each other.
Please quote this language.

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Originally Posted by Do0rDoNot View Post
Lol, yes they do. Natural rights are derived from natural law, and positivism is the rejection of natural law. Positivism is in direct and total opposition to natural law theory.
You are conflating natural law as a legal theory and natural law as a moral theory. Natural law as a moral theory doesn't imply natural law as a legal theory. Legal positivists reject natural law as a legal theory, but has no implication about natural law theories of ethics (or vice versa). Here is IEP on the topic:

Quote:
Internet Encyclopedia of Philosophy:
The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent.
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Originally Posted by Do0rDoNot View Post
Not moral claims, legal claims. And yes, it is an inconsistency.
A law that allows slavery is an evil law. I identify that not as a legal claim, but a moral claim. I'm not saying anything here about the law allowing slavery qua law, but rather made a comment about my moral appraisal of that law.

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Originally Posted by Do0rDoNot View Post
Again, I could be misunderstanding you based on the language you're using. You claim that the CRA is justified because all men are equal under the law. I haven't heard your justification of this stance, which is a moral stance. You cannot borrow from natural law to justify it and remain a positivist.
Well, I did say that all men (and women) should be equal under the law, but that isn't how I justified the CRA. Rather, I justified it on the basis that it would alleviate some of the harm done by the bigotry and racism of some Americans against other Americans. As I said earlier, btw, I'm not a utilitarian really, but more of a Rawlsian political liberalism type of guy.

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Originally Posted by Do0rDoNot View Post
Ok, so you are morally opposed to it. That's fine. What makes you justified in changing the law due to that moral stance, since as a positivist you attach no moral claims to laws?

You can make moral claims aside from legal claims. Bridging that with changing the law to suit your moral claims is what I'm asking you to do.
Read about legal positivism and you'll find out.

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What I can't do, or what legal positivists can't do? Because this is precisely what natural law theorists do. Moral claims are intimately attached to the legality of laws in natural law theory. If a law goes against the morality of natural law, it is an illegal law. Natural law is the supreme law by which man-made laws are judged.
What legal positivists can't do.

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Originally Posted by Do0rDoNot View Post
I don't think you can. Positivism changes laws based strictly on precedent and structure of the legal system. It does not make moral justifications for law changes.
Read more about legal positivism as I am fairly confident not a single one has made this claim.

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Justified on your moral claims, or something else?
Yes, for moral reasons.

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Originally Posted by Do0rDoNot View Post
Literally the first line: "Opposed to all forms of naturalism is legal positivism"
Once more demonstrating your poor knowledge base. That sentences follows a description of three versions of legal natural law theory that the author refers to as "naturalism." I agree, legal positivism is opposed to all versions of natural law as a legal theory, but not as a moral theory (leaving aside maybe a few hybrid theories).
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Old 07-16-2018, 12:28 AM   #612
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Re: Gay wedding cakes

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Ok, I have some time waiting for pizza

1)

OR

2)

OR

3)

So you'd be for the legality of slavery in 1861 then, especially if you were a member of a southern state, since, without debate,

by 1) slavery was a social convention, or
by 2) slavery was a legally allowed practice that was not refused by a sovereign or
by 3) any moral objections to it were irrelevant, up to this point in history?

Are you then against the war from the northern point of view, fought to keep the union together, as the South seceded on the basis that they believed this legal right was under threat with the election of Abraham Lincoln?
This is all wrong. Legal positivism is not a normative theory of law. It tells you what law is, not what laws should be enacted.

EDIT: Here we go. This section of IEP should be helpful for you in clarifying the distinction between natural law as a moral and as a legal theory.

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Old 07-16-2018, 01:35 AM   #613
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Please quote this language.



You are conflating natural law as a legal theory and natural law as a moral theory. Natural law as a moral theory doesn't imply natural law as a legal theory. Legal positivists reject natural law as a legal theory, but has no implication about natural law theories of ethics (or vice versa). Here is IEP on the topic:

No, I'm not.



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A law that allows slavery is an evil law. I identify that not as a legal claim, but a moral claim. I'm not saying anything here about the law allowing slavery qua law, but rather made a comment about my moral appraisal of that law.
Ya, and I've asked you 5 times to justify your claim that it is evil. What principle are you drawing on to make this judgement?



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Well, I did say that all men (and women) should be equal under the law, but that isn't how I justified the CRA.
Why should they be equal under the law?

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Rather, I justified it on the basis that it would alleviate some of the harm done by the bigotry and racism of some Americans against other Americans. As I said earlier, btw, I'm not a utilitarian really, but more of a Rawlsian political liberalism type of guy.
By propagating and enforcing bigotry against religious views who see homosexuality as a sin?




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What legal positivists can't do.
Ok, just checking.

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Read more about legal positivism as I am fairly confident not a single one has made this claim.
I'm not claiming they did. I'm pointing out that you are.


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Once more demonstrating your poor knowledge base. That sentences follows a description of three versions of legal natural law theory that the author refers to as "naturalism." I agree, legal positivism is opposed to all versions of natural law as a legal theory, but not as a moral theory (leaving aside maybe a few hybrid theories).
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This is all wrong. Legal positivism is not a normative theory of law. It tells you what law is, not what laws should be enacted.

Legal positivism says that what laws are valid does not depend on their merits, but their source. If you are a legal positivist, you base your judgements about the validity of law based on the source of the law. I did not ask you a moral question. I have no doubt you are morally opposed to slavery, and I will give you the benefit of the doubt about being morally opposed to it if you somehow lived in 1861. There were a lot of people who considered slavery morally repugnant that fought for the Confederacy because of their belief in the legal validity of both slavery, and secession. Robert E. Lee was one of them.

I ask again, despite your moral objection and as a legal positivist, what is your position on the legality of slavery in the southern states in 1861?
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Old 07-16-2018, 03:05 AM   #614
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Ya, and I've asked you 5 times to justify your claim that it is evil. What principle are you drawing on to make this judgement?
I've answered this question every time you've asked it, so I am not sure why you keep asking it. I believe that slavery is wrong because it is wrong to cause suffering, eg beating, raping, killing, and so on. I also think it is generally wrong to take away people's autonomy, and slavery is an extreme and unjustified example of this, where slaves have little opportunity to govern their own lives. I also think slavery sears the conscience of the slaveholder as well, as reported by so many slaves and slaveholders of the time. Furthermore, societies without slavery work better economically, have lower crime, are less likely to have a rebellion, etc. If you want more detail on my moral views, I'll again refer you to our previous in-depth conversation on this topic.

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Why should they be equal under the law?
Lots of reasons, I'll just pick one: because people are more likely to acquiesce to laws that they think are fair, and having laws apply to everyone equally is more fair.

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By propagating and enforcing bigotry against religious views who see homosexuality as a sin?
Do you believe that in the 1960s and earlier that there was a problem in American society with racism and discrimination, where many white people held racist beliefs against black people and acted in discriminatory ways against them - including in various legal codes and in access to public and private goods? I mean, fine, if you think the CRA was unconstitutional, but what is the alternative policy you would support? I guess you are okay with religious people who discriminate against gay people on the merits (not saying you would do so yourself, just that you don't see this as a social problem). But surely you'll acknowledge that racism towards black people has been a problem in American history. So what is your proposed alternative policy?

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Legal positivism says that what laws are valid does not depend on their merits, but their source. If you are a legal positivist, you base your judgements about the validity of law based on the source of the law. I did not ask you a moral question. I have no doubt you are morally opposed to slavery, and I will give you the benefit of the doubt about being morally opposed to it if you somehow lived in 1861. There were a lot of people who considered slavery morally repugnant that fought for the Confederacy because of their belief in the legal validity of both slavery, and secession. Robert E. Lee was one of them.
Lee should have freed his slaves if he thought slavery was morally repugnant. It is morally wrong to fight to defend slavery. I know that Lee had many of the personal qualities people admired in the Southern ideal of manhood and honor, and I can recognize many of those as admirable qualities, but Lee should not have fought at all during the war if he could not fight against Virginia. His doing so is an irredeemable stain on his legacy. What should I think about him except that few men in American history tried harder to keep black men, women, and children in chains and under the lash of their white overlords?

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I ask again, despite your moral objection and as a legal positivist, what is your position on the legality of slavery in the southern states in 1861?
Is this not clear enough?

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No, you just don't understand the theory. A legal positivist would acknowledge that segregation, miscegenation laws, slavery, etc could all be in principle law and in fact were law in at least parts of the US at various times. However, they deny that we can derive from their being law, that they are morally good law. They might in fact be quite morally evil (as these laws were).

For example, maybe you think the DH rule in baseball is a bad rule. Fine. However, it is still a rule. That is, everything that is required to make an official baseball rule has been met by the DH rule, and so it is a part of the game now, regardless of your view on its merits. Similarly for slavery laws. Everything that was required to make an official law of Georgia was met by the slavery law, and so it was part of the laws of Georgia, regardless of your views on its merits.
If not, my position is that in the 1850s that slavery was legal in the southern states (1861 is more complicated as legitimacy became contested).

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Old 07-16-2018, 03:23 AM   #615
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I've answered this question every time you've asked it, so I am not sure why you keep asking it. I believe that slavery is wrong because it is wrong to cause suffering, eg beating, raping, killing, and so on. I also think it is generally wrong to take away people's autonomy, and slavery is an extreme and unjustified example of this, where slaves have little opportunity to govern their own lives. I also think slavery sears the conscience of the slaveholder as well, as reported by so many slaves and slaveholders of the time. Furthermore, societies without slavery work better economically, have lower crime, are less likely to have a rebellion, etc. If you want more detail on my moral views, I'll again refer you to our previous in-depth conversation on this topic.
Well a lot of that is just opinionating, but ok.



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Lots of reasons, I'll just pick one: because people are more likely to acquiescence to laws that they think are fair, and having laws apply to everyone equally is more fair.
But you don't believe this as a legal positivist, do you? You believe laws get their validity from a sovereign, who is not answerable to anyone.



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Do you believe that in the 1960s and earlier that there was a problem in American society with racism and discrimination, where many white people held racist beliefs against black people and acted in discriminatory ways against them - including in various legal codes and in access to public and private goods?
I don't believe 1) me moralizing about what other people believe about others is legitimate 2) it's illegal to be racist or act discriminatory as a private person and 3) it's legal for governments to be racist and discriminatory.

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I mean, fine, if you think the CRA was unconstitutional, but what is the alternative policy you would support?
Forcing state sanctioned racist institutions to abide by the constitution, for one. Challenging unconstitutional laws to the Supreme Court, for another. On a personal level, offering broad support to people who suffer from obvious injustices, including legal, financial and educational.

If a private business wants to discriminate, I'm fine with it in any way. For example I don't think gays should be forced to serve Christians, or that sikhs should be forced to serve muslims, etc. I think interpersonal bigotry is much better solved by avoidance than involvement of the government. That is tolerance in practice. You have the right to speak, I do not have a claim on you to not speak---I simply don't have an obligation to listen.

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I guess you are okay with religious people who discriminate against gay people on the merits (not saying you would do so yourself, just that you don't see this as a social problem). But surely you'll acknowledge that racism towards black people has been a problem in American history. So what is your proposed alternative policy?
I'm ok with interpersonal bigotry in any way. I don't think it's possible to regulate it, and no matter what social policy you try to enforce, you will just create more virulent and violent strains attempting to get rid of it. My proposed alternative policy would be to support and educate blacks of the time to bring court cases against their states or any other public institution imposing discrimination against them in light of their constitutionally protected rights.



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Lee should have freed his slaves if he thought slavery was morally repugnant. It is morally wrong to fight to defend slavery. I know that Lee had many of the personal qualities people admired in the Southern ideal of manhood and honor, and I can recognize many of those as admirable qualities, but Lee should not have fought at all during the war if he could not fight against Virginia. His doing so is an irredeemable stain on his legacy. What should I think about him except that few men in American history tried harder to keep black men, women, and children in chains and under the lash of their white overlords?
I try and put myself in the position of that time before I make judgements about people from a time and place so far removed from our own. I would suggest everyone else do the same. It's easy to judge. It's not easy to be impartial and fair to people long unable to defend themselves, and without the privilege of living, as we do, with 150 years between us. Slavery was a great moral evil, but so was Nazism and a lot of good Germans who were not anti-semites did nothing to depose Hitler. I don't believe this makes them as morally culpable as the people who actually operated the tank engines that killed millions of Jews.



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Is this not clear enough?



If not, my position is that in the 1850s that slavery was legal in the southern states (1861 is more complicated as legitimacy became contested).
Ok thanks, I change my opinion about your inconsistency. As a natural law theorist, I believe American slavery was fundamentally illegal. So too, I think, did Lincoln.


What do you think about the legality of secession?

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Old 07-16-2018, 05:28 AM   #616
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The qualifier "legally relevant", in the OrP post that I quoted, is relevant here. There is no doubt that the idea of "natural rights" is important to the intellectual history of the constitution. But I asked whether there had ever been a case where a law was struck down because it violated natural rights because I'm interested in the actual functioning of the law. You yourself said that what matters is "how it really is". If it is the case that no court will accept a challenge to CRA on the basis that it violates a natural right then natural rights are not relevant to the actual law. Since I'm unaware of a court accepting any challenge to any law on such grounds, I doubt that such a challenge is legally possible, and thus that natural rights are legally relevant.
I'd just say regarding this that people terming themselves "sovereign citizens", "freeman on the land" and "Moorish" have tried defences (and continue to do so) based on the idea that they have natural rights and do not have to subscribe to statutes and acts with hilarious results. As far as I know from watching videos of them failing, it's been attempted in the US, UK, Canada, and even the Netherlands. They argue some variation of the claim that since they haven't violated natural law and haven't consented to any government that there is no basis or jurisdiction to try them.

It has never worked.
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Old 07-16-2018, 06:49 AM   #617
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I'd just say regarding this that people terming themselves "sovereign citizens", "freeman on the land" and "Moorish" have tried defences (and continue to do so) based on the idea that they have natural rights and do not have to subscribe to statutes and acts with hilarious results. As far as I know from watching videos of them failing, it's been attempted in the US, UK, Canada, and even the Netherlands. They argue some variation of the claim that since they haven't violated natural law and haven't consented to any government that there is no basis or jurisdiction to try them.

It has never worked.
Natural law doesn't really determine the specific legality of something as much as it inspires how the legal system should function and what it should contain. Some legal principles that are rooted in natural law are for example constitutions, universal rights, precedent, equality of peers and that the legal system should not contradict itself. Natural law isn't the only influence of these things, but its influence is certainly palpable.

These things of course seem very trivial to us on this forum, since most of us live in places where these are legal principles. However, you have plenty of legal systems in the world where none or only some of these principles apply.
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Old 07-16-2018, 10:41 AM   #618
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I don't want to go too far into that aside because the sovereign citizen types are bat**** crazy conspiracy theorists. I just thought it worth mentioning in regards to WN's question as to whether any law had been struck down on such grounds because that challenge has been and is being made with fairly poor results.

If I were to make a more serious comment then my view of natural rights is that no amount of internally consistent philosophy breathes life into such abstract concepts. I certainly think that starting with some basic version of rights that we might deem "natural" is a good basis for constructing society and a legal system. I might even go so far as writing a document in which I profess to hold such rights as self-evident. Even if they aren't.

Where it seems I split from Do0rDoNot the most is that I am far less interested in the abstract philosophy than reality and pragmatism.

If he demonstrates that the CRA contravenes some version of natural rights then, fine, I'm no longer interested in that version of natural rights. What concerns is the clear benefit seen by literally millions of people.
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Old 07-16-2018, 12:28 PM   #619
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I don't want to go too far into that aside because the sovereign citizen types are bat**** crazy conspiracy theorists. I just thought it worth mentioning in regards to WN's question as to whether any law had been struck down on such grounds because that challenge has been and is being made with fairly poor results.

If I were to make a more serious comment then my view of natural rights is that no amount of internally consistent philosophy breathes life into such abstract concepts. I certainly think that starting with some basic version of rights that we might deem "natural" is a good basis for constructing society and a legal system. I might even go so far as writing a document in which I profess to hold such rights as self-evident. Even if they aren't.

Where it seems I split from Do0rDoNot the most is that I am far less interested in the abstract philosophy than reality and pragmatism.

If he demonstrates that the CRA contravenes some version of natural rights then, fine, I'm no longer interested in that version of natural rights. What concerns is the clear benefit seen by literally millions of people.
It's healthy insofar as one should never say the law is just because it is the law, but it is unhealthy when it's just a shortcut to affirm whatever belief you might hold.

But the entire discussion is a sidetrack to begin with. Modern democracies are very far cry from perfect, but they have very functional legal systems and the ideal is very much still to uphold the rights of citizens and have a fair system for all. To us that often seem so obvious that we forget that isn't even the intent of most legal systems in the world or in history.

And my experience is that you don't need to travel much or see some rotten places in this world to realize that "freedom" is not a natural state. It is a delicate agreement between people that is difficult to gain, hard to maintain and easy to lose. Maintaining it takes force, violence and even killing. Some might see irony in that, I say welcome to the real world.
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Old 07-16-2018, 02:01 PM   #620
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To quote my favourite source of philosophy, The Simpsons, "Without law and order man has no freedom".

One of the things that Do0rDoNot misses in his analysis of the CRA is that there is a cost to freedom and order in the form of rebellion of the people. When portions of society are wronged to the point that they take to direct action there is a cost that is paid, often a literal economic one. I predict this will be seen as a threat, being that I'm already accused of tyranny, but creating a society that has no need for constant political uprising seems, on the face of it, a net benefit.
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Old 07-16-2018, 02:33 PM   #621
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To quote my favourite source of philosophy, The Simpsons, "Without law and order man has no freedom".

One of the things that Do0rDoNot misses in his analysis of the CRA is that there is a cost to freedom and order in the form of rebellion of the people. When portions of society are wronged to the point that they take to direct action there is a cost that is paid, often a literal economic one. I predict this will be seen as a threat, being that I'm already accused of tyranny, but creating a society that has no need for constant political uprising seems, on the face of it, a net benefit.
Yes. What is missing is the legitimacy that comes from democratic lawmaking. Instead, government law is legitimized by natural law, and if people don't like it, too bad.
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Old 07-16-2018, 03:10 PM   #622
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But you don't believe this as a legal positivist, do you? You believe laws get their validity from a sovereign, who is not answerable to anyone.
You're thinking of classical legal positivism - JL Austin, Bentham, etc. Modern legal positivism takes as its point of departure HLA Hart, who offered a version of legal positivism in the context of modern democratic societies.

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I don't believe 1) me moralizing about what other people believe about others is legitimate 2) it's illegal to be racist or act discriminatory as a private person and 3) it's legal for governments to be racist and discriminatory.
I find (1) confusing. What do you mean by "legitimate" in that context? How is this consistent with your views on free speech? Isn't this exactly what you've been doing here on 2p2, including in this thread, moralizing about what other people believe about others?

I agree with (2) (with limits, at least for the US) and think (3) is true or false depending on the specific government.

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Forcing state sanctioned racist institutions to abide by the constitution, for one. Challenging unconstitutional laws to the Supreme Court, for another. On a personal level, offering broad support to people who suffer from obvious injustices, including legal, financial and educational.
You favor a very activist court I guess. I think what I'd say is that your view doesn't have much place for democracy in it, at least not democracy understood as self-rule. The laws aren't legitimized by a democratic process - but by their correspondence to the natural law.

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If a private business wants to discriminate, I'm fine with it in any way. For example I don't think gays should be forced to serve Christians, or that sikhs should be forced to serve muslims, etc. I think interpersonal bigotry is much better solved by avoidance than involvement of the government. That is tolerance in practice. You have the right to speak, I do not have a claim on you to not speak---I simply don't have an obligation to listen.
I'm not really sure that avoidance is possible anymore (if it ever really was). Social media, modern transportation and communication technology, globalization, increased urbanization - all these things have seemed to have changed the sense of community most people have in quite radical ways. Things seem more permeable nowadays, at least to me.

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I'm ok with interpersonal bigotry in any way. I don't think it's possible to regulate it, and no matter what social policy you try to enforce, you will just create more virulent and violent strains attempting to get rid of it. My proposed alternative policy would be to support and educate blacks of the time to bring court cases against their states or any other public institution imposing discrimination against them in light of their constitutionally protected rights.
I think it is possible to regulate some of the effects of bigotry, although not really to get rid of it. Slavery is an obvious and clear example. People were bigoted against black people and that racism became part of the ideology justifying the slavery of black people. People initially hoped that slavery would just kind of wither away as an obviously evil institution of American society (i.e. private means), but ultimately, the government had to just ban the entire institution of slavery (a regulation of the labor market) because that just wasn't happening. People remained bigots, but they were no longer able to enslave people they were bigoted against. An effective and obviously justified regulation of one negative effect of bigotry.

I'm not familiar enough with this topic to respond to your comments about legal challenges to white racism during the civil rights era and before. My general impression though was that the legal teams supporting civil rights were quite competent (NAACP, all those Jewish lawyers). I'll also say that as a general rule, I prefer that laws with such a significant impact on the social life of the country are handled through the legislature rather than the courts. The legislature has more democratic legitimacy, and I think that is helpful in enforcing these kinds of laws.

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I try and put myself in the position of that time before I make judgements about people from a time and place so far removed from our own. I would suggest everyone else do the same. It's easy to judge. It's not easy to be impartial and fair to people long unable to defend themselves, and without the privilege of living, as we do, with 150 years between us. Slavery was a great moral evil, but so was Nazism and a lot of good Germans who were not anti-semites did nothing to depose Hitler. I don't believe this makes them as morally culpable as the people who actually operated the tank engines that killed millions of Jews.
I also try to do this, and my comments about Lee were in light of that kind of reflection. Slavery was widely regarded as evil during Lee's time and earlier. I can see the argument made by many Southerners that you couldn't just willy-nilly free the slaves because it would lead social chaos and rebellion. I don't agree, but whatever. However, that doesn't justify personally owning slaves. As a moral person, you can presumably free your own slaves without rebelling against anyone. And you see these very obvious rationalizations by Lee, where he claims that Africans are better off as American slaves than still living in Africa. Well, sorry, that isn't your choice to make, which is as fundamental a part of the American ideal as anything.

That being said, look, if people view Lee as a tragic figure, whatever, I can see that. But the reason why is because he was one of the people who actually operated the tank engine that killed millions of Jews. Whatever his personal motivations for doing so, his legacy is exactly what I described. He fought harder to preserve the institution of slavery than just about anyone else. He's a famous guy - most educated Americans know who he is. And that is what he is famous for, fighting to keep black people in slavery. Not a legacy I would want.

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Ok thanks, I change my opinion about your inconsistency. As a natural law theorist, I believe American slavery was fundamentally illegal. So too, I think, did Lincoln.
I don't know much about Lincoln's understanding of law - why do you think this?

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What do you think about the legality of secession?
I don't really have settled views on this topic, but my view is that secession should really be the subject of international law, as it relates to a dispute between (potentially) two sovereign nations, and international law is fairly weak. As a result, I am skeptical that there is law governing secession at all.

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Old 07-16-2018, 03:43 PM   #623
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I don't want to go too far into that aside because the sovereign citizen types are bat**** crazy conspiracy theorists. I just thought it worth mentioning in regards to WN's question as to whether any law had been struck down on such grounds because that challenge has been and is being made with fairly poor results.

If I were to make a more serious comment then my view of natural rights is that no amount of internally consistent philosophy breathes life into such abstract concepts. I certainly think that starting with some basic version of rights that we might deem "natural" is a good basis for constructing society and a legal system. I might even go so far as writing a document in which I profess to hold such rights as self-evident. Even if they aren't.

Where it seems I split from Do0rDoNot the most is that I am far less interested in the abstract philosophy than reality and pragmatism.

If he demonstrates that the CRA contravenes some version of natural rights then, fine, I'm no longer interested in that version of natural rights. What concerns is the clear benefit seen by literally millions of people.
Ya and this is why we disagree so often. I'm sure you're not actually a tyrannical ******* in real life, but it certainly comes across that way when you're arguing that it doesn't matter when the group you don't care about gets trampled on, so long as the group you do care about gets what they want. You don't actually expect to get much support for this view, do you?

I understand it comes from a genuinely caring place about people you see as having injustices committed on them, but if you don't apply the principles you're attempting to defend on everyone equally the only thing that will happen is people will directly confront the lack of integrity in your view.
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Old 07-16-2018, 04:12 PM   #624
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You're thinking of classical legal positivism - JL Austin, Bentham, etc. Modern legal positivism takes as its point of departure HLA Hart, who offered a version of legal positivism in the context of modern democratic societies.



I find (1) confusing. What do you mean by "legitimate" in that context? How is this consistent with your views on free speech? Isn't this exactly what you've been doing here on 2p2, including in this thread, moralizing about what other people believe about others?
I dunno, this depends on whether or not you think logical inconsistencies are immoral. I think often time, logical inconsistency is immoral or that they certainly lead to immorality. So I probably come across as judgemental of inconsistent views, but that's not my direct intention; rather I attempt to showcase the lack of integrity in certain views.



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You favor a very activist court I guess. I think what I'd say is that your view doesn't have much place for democracy in it, at least not democracy understood as self-rule. The laws aren't legitimized by a democratic process - but by their correspondence to the natural law.
I dunno if I'd agree with the word 'activist.' But certainly a court that is actively and aggressively enforcing upon government the scope the supreme law defines for it to operate in. Clearly, the DoI and constitution says that all laws should apply to every man equally. The black man is a man, so any laws restricting him or segregating him on the basis of his skin color is illegal. The debate in decades prior was really, and sadly, over blacks' humanity. No one disagreed that the law should apply equally to all men, they just made a category mistake about women, children, and minorities. This view was an artifact of primitive reasoning; most of the founders were certainly of the equality opinion but because the "lower-humanity" views were so widely held they probably felt they had a better chance for ratification if they kept it as general as they possibly could.




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I don't know much about Lincoln's understanding of law - why do you think this?
"Abraham Lincoln, in his debates with Senator Stephen Douglas, articulated a natural law argument against slavery. In Lincoln's view, the Declaration of Independence established "an abstract truth, applicable to all men and all times, that all men are created equal." The DoI meant simply to declare the right, so that the enforcement of it might follow. Slavery, Lincoln insisted, violated a fundamental notion of equality, one promised by the DoI. Lincoln quoted Proverbs 25:11: " A word fitly spoken is like an apple of gold in a frame of silver." Lincoln likened the Constitution to the frame, and the Declaration to the apple, noting, "the frame is made for the apple, not the apple for the frame." Thus, to Lincoln, the Constitution should be designed to capture the natural law's sense of justice. And, of course, with respect to equality, it soon was, in the 14th Amendments Equal Protection Clause. Accordingly, Justice Thomas and others have argued that the Equal Protection Clause codifies a natural law version of equality."

https://ir.lawnet.fordham.edu/cgi/vi...39&context=flr




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I don't really have settled views on this topic, but my view is that secession should really be the subject of international law, as it relates to a dispute between (potentially) two sovereign nations, and international law is fairly weak. As a result, I am skeptical that there is law governing secession at all.
I don't have an established view either. I can see the argument from both sides. What I do believe is that the 'Union' at the time was two almost entirely distinct societies.
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Old 07-16-2018, 04:37 PM   #625
Bladesman87
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Join Date: Jun 2009
Posts: 13,483
Re: Gay wedding cakes

Quote:
Originally Posted by Do0rDoNot View Post
Ya and this is why we disagree so often. I'm sure you're not actually a tyrannical ******* in real life, but it certainly comes across that way when you're arguing that it doesn't matter when the group you don't care about gets trampled on, so long as the group you do care about gets what they want. You don't actually expect to get much support for this view, do you?

I understand it comes from a genuinely caring place about people you see as having injustices committed on them, but if you don't apply the principles you're attempting to defend on everyone equally the only thing that will happen is people will directly confront the lack of integrity in your view.
I don't think anyone's actually getting trampled on by the CRA, so there's that. I'm sorry you can't have a "no blacks" sign on the door any more but it really hasn't turned out to be much of a hassle for anyone. We can do a cost/benefit analysis and I'm pretty sure the CRA comes out on top.

The whole thread is you trying to pass it off as though if you can loosely term some set of people a "group" or a "class" or whatever that therefore I must consider those sets to be similar enough to be treated equally.

And as has been put to you repeatedly, this is essentially saying that if water is a chemical and cyanide is also a chemical then in order to be rational I have to drink both.

I don't.

Edit: Also, yes, there's a lot of support for anti-discrimination laws.
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