Law vs. Values?

Great Debates
1

I recently had a discussion with a friend and professor about Legal Positivism–the idea that law has an intrinsic worth that is seperate from external morals and belief systems, and that law draws its strength from that separation. Recent debates on this board, most memorably having to due with gun control and homosexuality, have centered around the U.S. constitution and positivistic nature. I certainly see–and agree with–the validity of the concept, and as an American I reap the benefits of it daily (and, for the record, I support full rights for every citizen).

But I propose that there is a basic paradox–namely that the laws and tenets we hold so close are the product of the human values of those that composed them. There are implied–and in some cases explicit–beliefs. So, like it or not, law carries morality in its back pocket, yet it enjoys immune status from changes in our beliefs.

Is this in any way a problem? Is there even anything to debate here? Is this such a basic concept of constitutional law that everyone has thought of it but me? Help me out here.

2

Not really. The law can and does change to fit our changing beliefs. The Constitution can be amended, and has been amended many times. Using your example of the gun control debate, if there were a national consensus, we could all band together to repeal the Second Amendment, and eliminate the protection of gun ownership.

But leaving out Constitutional amendments for a moment, the interpretation of the Constitution can and does change with the times, as well. For example, in the 1960’s the Supreme Court interpreted the Constitution in such a way as to allow the federal government to pass laws requiring private businesses to desegregate. That kind of federal power would have been unthinkable a couple of generations earlier. The Constitution didn’t change. It was the interpretation of the Constitution which had changed to fit the times.

The Constitution is (and should be) a “living document”.

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spoke- writes:

But, then, why have a Constitution?

If the interpretation of the Constitution is considered to be legitimate (as opposed to being done by that group that controls a majority of the lawyers, guns, and money), then, should the social and political situatons swing in the other direction, might not the SC find those laws (among others) unconstitutional? Will a plea of long use of Federal power in defense of desegregation find a hearing against a reinterpretation of the Constitution in the light of that generation’s wisdom (and, if so, why didn’t a plea of long use of state power as against the Federal government work in the 1960s?)

Must we posit a “ratchet effect” where only legal change in a given direction be admitted, and that that change can never be undone? Certainly, there seems to be little publicly expressed belief that that effect can take place.

If the Constitution (indeed, all of the laws, although the Constitution is now widely agreed to be their final arbitor) is a “living document”, then what plea does anyone have against it being made to live in a way of which they do not approve?

“I don’t just want you to feel envy. I want you to suffer, I want you to bleed, I want you to die a little bit each day. And I want you to thank me for it.” – What “Let’s just be friends” really means

4

Could we? The only amendment I can think of (no legal student, I) that has been repealed is the 18th–prohibition. Repealing the second would represent a paradigm shift in our society because it’s part of the bill of rights–it has a special sanctity. And, that sanctity is the primary strength of second amendment arguments. One doesn’t have to argue for gun ownership. Instead, in order to repeal those rights one would have to argue against it sufficiently to overcome the sanction given them by the Bill of Rights. And some would argue that doing so (repealing) would compromise the strength of the constitution as a whole. So where is the line? If it seemed “obvious” (and, of course, it doesn’t) that repealing part of the bill of rights was in order, would it be wise to do so? Isn’t that body of law important enough to merit protection in the face of changing ideas? (and

5

Akatsukami: The Law is a formalization and codification of our values in unambiguous form. It’s very hard to implement an amorphous and sometimes ambiguous “value” in a consistent manner. Thus we translate these values into the very concrete and specific provisions of Law.

The Law also changes more slowly than our values sometimes do. This has a positive, stabilizing effect; our values are often transient and volatile. Law would lose its effectiveness if an action were a crime one day, a compulsion the next, and ignored the day after. Thus, over time, the Law tends to reflect our enduring values, rather than the passions of the day.

But the Law must always be based on our own values. The Law serves us, we do not serve it.

aschrott:
I think to treat any part of the Constitution as “sanctified” perverts and corrupts the very spirit in which it was framed and in which we adopted it.

The very first sentence of the Constitution states that “We the people… do ordain and establish this Constitution.” Thus the power of the Constitution explicitly flows from the people. We can, indeed we must, continuously reinterpret and amend the Constitution or we risk becoming slaves of men centuries dead.

“Reality is that which, when you stop believing in it, doesn’t go away”. - Phillip K. Dick

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I’m gonna post twice, here, the first time to the hijack of the thread, the second to the original question of the OP.

Akatsukami makes the plaintive cry, “But, then, why have a Constitution?” Initially we must make an observation not understood by many: all countries have a constitution, unless they are truly anarchic. A constitution is nothing more or less than your plan of government. As WWWebster Dictionary states:

It is only the secondary meaning of a written outline that we tend to use as the main meaning when we think of our Constitution. As the old joke goes:

Let us, however, assume that Akatsukami really meant: “But, then, why have a written Constitution?” meaning why have a written constitution which we interpret through application of the principle of stare decisis (translation: to abide by decisions)?

We have a written plan of government because the founding fathers very much worried that an unwritten plan of government was an invitation to tyrrany. Remember, England was governed under an ‘unwritten’ constitution (a misnomer, since a good part of what makes up the English constitution is written down, e.g.: the Bill of Rights (1689)). If the plan of government and the limitations on a government were not set forth in writing, then a government might be tempted to withdraw overstep its authority when convenient, arguing interpretation of past custom, exigent circumstances, etc. George III’s government was viewed as having done this, as had other kings in the past (indeed, the Bill of Rights of 1689 is really a restatement of rights that the people were considered to have already, but which had been abrogated by the crown arbitrarily). To prevent this from occurring, the states entered into a compact, by signing the Articles of Confederation. This written plan of government was found to be insufficient to the task of properly governing the country, so the states entered into our present constitution in 1789.

Now, the founders knew that no plan of government could remain totally unchanged over time. So, the Constitution allows for the states to amend it. Does this mean that the Constitution is subject to arbitrary revision? Perhaps, although history makes it clear that we don’t consider that a good idea. In the subsequent 211 years, we have managed only 27 successful amendments, ten of which came almost immediately and simply added a number of individual rights the framers could have included at the start but didn’t for practical reasons related to getting the Constitution ratified. Only once have we changed our mind regarding an amendment and amended the document to remove the prior amendment (Prohibition). It would be hard to argue that the Constitution is an ever changing plan of government subject to the whims of the people (contrast for example the California Constitution, which gets amended multiple times every two years by its people through initiatives).

But this does not end our inquiry into Akatsukami’s plaint. As noted, the Constitution is subject to interpretation, that most nasty of legal terms. Because the Constitution does not address each individual instance of governmental power, we measure attempts to govern against the master plan by having the courts interpret the meaning of the master plan and then apply that interpreted meaning to the individual exercise of governmental power being judged. Interpretations, of course, can vary from person to person; the USSC established quickly in its decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) that the Supreme Court had the power to declare a law invalid if it found it to violate the Constitution. Thus, the Supreme Court is the final arbiter of the interpretation of the words of the master plan.

Now, this might cause chaos. After all, the Supreme Court changes its composition over time, and what the Court does in 2000 might change in 2010 if different judges sit on the bench. However, our courts adhere to the principle of stare decisis. This means, the courts in general will respect the prior decision of an equal or higher court as to a particular point of law. This includes interpretation of the master plan. If the Court, filled with a bunch of Republicans, decides that a federal law crimnalizing possession of handguns near a school is not an example of a law “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” the Democrats sitting on the bench 15 years later will not simply over-rule that decision and allow Congress to go ahead with such legislation. Constitutional interpretations tend, therefor, to change very slowly over time. Often, the dominant philosophies of a substantial period are not successfully attacked by later efforts mandated by exigent needs.

As an example: for the period of 1887 through 1937 (50 years), the USSC invalidated law after law passed by states and the federal government which attempted to regulate various aspects of business in America. The reasoning used was an interpretation of the 14th Amendment’s due process clause that allowed the Court to interpret the clause substantively (as opposed to procedurally). In this interpretation, the USSC could review the legislation and determine if the substance of the law violated the due process rights of citizens. In the most famous example, Lochner v. New York, 198 U.S. 45 (1905), the Court overturned the attempt of the state of New York to limit the hours a baker could work to 60 per week or 10 per day. The court felt that the legislation infringed on the ‘liberty’ of an employer and employee to contract for services, a liberty protected by the due process clause. This interpretation was not overturned until 1937, at the time of the Great Depression, and after the President proposed to Congress a plan to revamp the membership of the Supreme Court. Now, of course, we allow state governments to implement social legislation of all kinds, regardless of whether the Court in its independent review thinks it is necessary or not. But despite warnings that substantive due process review was a bad idea, it was not discarded until completely clear what kind of impediment it was.

Therefor, application of the principle of stare decisis protects us from the whims of the Court over short periods of time. While examples exist of short-term turnarounds, in general the interpretations of our master plan remain in place for impressively long periods of time, sometimes longer than we might wish. It took over 60 years to remove the “separate but equal” doctrine found constitutional in Plessy v. Ferguson, and conservatives STILL fume about Miranda v. Arizona some 40 years later, despite having had a conservative majority on the bench for most of that time.

What safeguards, then, exist against abuse of the Constitution? Almost none, actually. One of the scariest things to contemplate is that, should one party or the other control a sufficient amount of votes in Congress (Senate and House), the possibility exists to totally annihilate the master plan. Supreme Court justices can be impeached; all it would take is the political will and the control of Congress by sufficient nu

7

The doctrine of stare decisis (“let the decision stand”) dissuades the USSC from overturning previous decisions. USSC decisions are binding on all courts, including the USSC itself; justices will (or at least are supposed to) look to those precedents in deciding future similar cases. Not doing so would lead to incredible legal and social instability, as people could not be sure from one day to the next what laws are applicable. Stare decisis also helps preserve precedent by limiting opportunities to challenge settled matters. It’s highly unlikely that a case challenging the constitutionality of using federal power to desegregate will reach the Court, as lower courts will rule on them in line with Brown and other desegregation cases and the USSC will probably not grant certiorari. The only significant exception to the doctrine is when the previous decision was based on an error in interpretation, which is what happened in Brown. It’s been a while since I did any deep reading on Brown, but as I recall the USSC decided early on that segregated schools were morally wrong but ordered reargument in the case focusing specifically on the intent of the framers of the Fourteenth Amendment in re segregation.

8

Egad, I’m a long-winded bastard. Maybe I should change my name to NanoEsq. :wink:

Still, I promised to address the OP, so I will.

I do not believe that legal positivism is a correct way of viewing how we do or should govern ourselves. The general idea of positivism, as I understand it, is that knowledge should be based on empirically verifiable naturally observable phenomena. In this framework, metaphisical and theological theories are meaningless, since they draw on non-observable data to reach conclusions. For instance, positivism would declare meaningless a theory that the Earth was at the center of the Universe if that theory was based on theological arguments; it would only accept empirical data to determine if, indeed, the Earth were at the center. If it could not be determined, then it would be considered unsolvable until better data were available. Logical positivism carries this a step further: it considers only analytically or conclusively verifiable statements as meaningful. As I understand this, a positivist would consider a theory about the beginning of the Universe meaningful only to the extent that it could be verified by observational data; the story of the Bible wouldn’t be considered ‘knowledge’.

There is, of course, difficulty with attempting to apply a theory for dealing with observational data about natural phenomena to human relations and the concept of government. I think you can imagine the difficulty that would arise injecting positivism into a dispute between a believer in devine creation of man and a believer in the *** of man; each would loudly assert that HIS theory was supported by the ‘evidence’ and that the other theory relied on inferences and guesswork; each would, of course, totally ingore the fact that the answer to the ultimate question cannot ever be determined by empiric data, there having been no contemporary human witness. Even more difficult is the application of such logic to a study of ‘rights’, ‘privileges’ and duties.

Let us, then, start with the concept of a ‘right’. It is this concept that underlies almost the entire structure of our plan of government. Everyone can quote the famous line from our Declaration of Independence: “that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” They belong to you and me and no stinking government can take them away! Would that this were true.

If we define a ‘right’ as something intrinsic to a human, that cannot be prevented by act of man or nature, then humans have no ‘rights’. As I think Robert Heinlein pointed out in his book, Starship Troopers, what right to life does a drowning man have? Can he appeal to God or Mother Nature and protest that he will die? Does it stop murderers from killing? Accidental and intentional death are a part of the fabric of life; and even if you avoid those, eventually the flesh gives up the ghost and you die. Where, then, your valued ‘right’?

But the fathers of the country weren’t talking about ‘rights’ in that sense. The ‘right’ that they are talking about is the expectation that they will be allowed certain things by their fellow men. When men act to constrain a man depriving him of certain things, that is, in their view, inherently wrong. When government restricts my liberty, it should do so not by whim, but by a need, a need so great it outweighs my ‘right’ to be free from such interference.

The fathers also saw ‘rights’ as something that government couldn’t grant to its citizens, but rather something inherent in people that they could not abridge by creating a social compact to govern themselves. Unlike England, where the King was the viewed as the source of the power to govern, and could grant to his people ‘rights’, these men envisioned that people had the right to govern, and that when man establishes a government for himself, he doesn’t yield up certain basic things to which he is justly entitled. This view was, of course, totally inconsistent with monarchial government; it lead inevitably to conflict with the other viewpoint.

Now, viewed even this way, can we establish that a ‘right’ is something intrinsic? Can we engage in some sort of search for empirical evidence to indicate to what things a man is entitled at all times justly? Can we see it? Hear it? Taste it? Smell it? Touch it? Of course not. In the truest sense, positivism is meaningless in dealing with such inquiries.

But let’s go beyond positivism in the truest sense. Can we somehow logically deduce those things to which man is entitled, those things he needs, and those things which he should do as a duty?

Make a statment of a hypothesis about a ‘right’ man has. Begin to defend that statement with logic. I defy you to reach any conclusion about the statement without reference to some value system, some set of mores. The right to life? Oh, please, does a man really have a right to life if his ‘right’ interferes with a substantial need of society and society doesn’t view the individual as important? Suppose my society consists of people who are living in intolerably crowded conditions, and continued procreation would potentially result in privation for the culture. Suppose that such a culture does not value individual life, except as it can contribute to society as a whole. For such a culture, does the individual have a logical ‘right’ to live? Similar examples exist for privilege, duty, etc.

You state that, for the record, you “support full rights for every citizen.” What do you mean by this? Do you support the right of such a citizen to pollute, despite the fact it will impact his fellow citizens? Do you support his right to treat animals cruelly, because he perceives a need to do so for his own economic gain? Do you consider that he should never be incarcerated, never be limited in his liberties, never be registered, lisenced, imposed upon by the government in any way? Does he have the right to bear an AK-47? Does he have the right to use said AK-47 to avoid the imposition of governmental authority he views as violative of his rights? Does he have the right to perform an abortion? To abort his child? To NOT be aborted while still in the womb?

Do you view fundamental Islamic governments as inherently improper, because they treat individuals differently from how our founding fathers believed should be done? Do you consider caning, removal of hands, stoning to be ‘barbaric’ and a deprivation of ‘rights’? Do you feel that no one should be killed, even when condemned to death by a government for crimes committed? Is war ever justifiable, or should the U.S. simply lay down its arms and admit that, by shooting at enemies, it violates their ‘right’ to life and liberty?

If you want to understand exactly how the idea of legal positivism fails, I invite you to apply its principles to the debate about abortion. If you can manage to successfully conclude what the law regarding abortion should be in all societies, without reference to any belief system about what life is or what the individual’s worth is, then accept legal positivism as having a value. I am fairly certain this attempt will fail, as it has failed to allow us to resolve this debate.

Our country was founded on the basis of certain assumptions about what the fundamental tenets of government were. We have not substantially changed those tenets in over 200 years, but we do modify their application to the challenge each new generation faces. We base our tenets on the mores and beliefs of our people, as expressed democratically. There are no intrinsically correct laws; laws are the creation of man to weave the fabric of his mores around himself, and to repair the rents in that fabric whenever they occur.

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Wow, DsYoungEsq–very thoughtful (and thorough!) posts. Many thanks.

I was afraid that my use of 2nd amendment rights and gay rights as references in my OP would imply an opinion on those issues. Not the case–that’s all.

This is the heart of my question. My own behaviour in life is based on my own values–strong beliefs about what is important and what is not. It seems clear to me that the framers of the constitution were operating on a similar level when they provided for our basic rights as citizens–making reference to their own subjective value system. I was curious to hear informed opinions about what, if any, leg the law has to stand on when it is in conflict with prevailing values and sentiments–whether or not it should have intrinsic value. My own opinion on the matter is similar (though far less well thought-out) to your own.

I am intrigued by the concept of stare decisis, because it seems apropos to the OP. If I understand your comments on it (and Otto’s) correctly, a court decision is allowed to stand (or is made more difficult to challenge) simply because the matter has been decided–and not on the merits of whatever beliefs or values are embodied in the original decision. In that sense, it seems positivistic, no?

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Perhaps my comment was such that it was easily misunderstood. Let me try again:

It seemed to me spoke- (whom, I presume, is available to correct me if I substantially misrepresent his position) was calling for stare decisis to be repudiated as a principle for Constitutional interpretation.

Now, we immediately note Article V of the (U.S.) Constitution contains the procedure for amending it, and must therefore agree that those who wrote it intended, or at least conceded, that it would be amended from time to time. So far, so good. At any particular point in time, however, the text is the text; what it may have been last year is no longer (in part, at least) operative; what it may be next year is not yet efficacious, if indeed is has been formulated. The argument that, someday, things will be different, and that they therefore ought to be different now, has, I believe, been advanced before in law and has been uniformly rejected.

Now, we may say, of course, that the written text does not cover every circumstance that may arise, or that the meaning of the text may not be perfectly obvious, and that, whether we will or not, interpretation of it is necessary. Also so good; indeed, if we could imagine a (finite) text that was so unambiguous that interpretation was not necessary, a review function would be necessary, as everyone would agree that a government action was either permisible or impermisible.

Now DSYoungEsq and Otto both argue that Constitutional interpretation is and ought to be guided by stare decisis. To quote from DSYoungEsq:

(Actually, I think, on what I feel is good authority, that an attempt would be made to justify it under the Commerce Clause; however, that is but a minor quibble.)

However, it seems to me that this is exactly what spoke- is calling for; that if, fifteen years later, it is decided by SC as then constituted that it is a net good to society to have such a law be enforced, that prior arguments not it is not a valid example of such a law ought to be disregarded as no longer relevant.

Thus, it seems to me, the rest of DSYoungEsq’s argument for a written Constitution falls to the ground. Stare decisis has been both a political goal and a juridical principle since before Classical Latin was written or spoken. And well it should be; the confidence that judicial decisions will not be arbitrary reversed enables individuals and society to plan for longer periods of time than that spent in getting another decision.

DSYoungEsq does not speak with entire approval of the “unwritten” constution of England (which of course has evolved into the unwritten constitution of the United Kingdom), and does speak well of those portions of it that are, as, e.g., the (English) Bill of Rights. Yet, we will immediately concede that there exists no formal limitation on the powers of the Crown-in-Parliament, and tht, thereby, large portions of the Bill of Rights and of Magna Carta are, wherever prior generations might have imagined them coming from, simply no longer good law in the U.K. Indeed, as there is no formal limitation on the powers of the C-i-P, there is no formal limitation on its ability to declare the Bill of Rights a dead letter at a single stroke (there may well be, of course, some informal limitations on its power to do so).

Now, DSYoungEsq rightly notes that the formal limitation of the government to subvert the Constitution is strictly limited. Another Roosevelt might succeed in a “packing” scheme, or, by the threat thereof, intimidate the SC into following his line; a suitably large and partisan majority in Congress might impeach and convict every judge that says them nay. Indeed, I believe that he and I would agree that, if the temper of the great majority of the citizens of this country were to change in any significant way, such legal and institutional resistance as might exist would be swept aside in that tide, justified by the cry that it is a monstrous thing that the people not be allowed to do whatever they wish.

Yet, returning to my previously statement, I believe that this is essentially what spoke- is calling for, that wishes it to be considered, not a distasteful political eruption, but a normal and accepted part of the judicial process, and that we ought to have what DSYoungEsq alludes to as the constitution of anarchy, and what was perhaps most tellingly put by the authors or redactors of Judges:

“I don’t just want you to feel envy. I want you to suffer, I want you to bleed, I want you to die a little bit each day. And I want you to thank me for it.” – What “Let’s just be friends” really means

11

In theory, yes. In practice, not exactly.

Stare Decisis is not an absolute principle. While courts (including the Supreme Court) do consider themselves bound by their prior decisions, they do occasionally decide to “overrule” a prior decision. They may decide that experience subsequent to the earlier case has demonstrated that the rule laid down in the earlier case was “bad law”, and resulted in unforseen and unacceptable consequences.

[Side bar: DS, do you know if the Supreme Court has ever articulated any “standard” for overruling an earlier decision?]

Short of overruling prior decisions, a court faced with an inconvenient precedent may try to distinguish the earlier case. E.g. “Well the case of Jones v. Smith is not really binding on us in this case because the facts in that case were ever so slightly different. Therefore, under the facts of this case, we will carve an exception to the general rule we laid down in Jones v. Smith.”

Given any wiggle room at all, courts generally find a way to rule the way they want to rule.

Akatsukami-

I am in no way calling for an end to stare decisis. My God, that would be chaos! There would be no way to know whether you have a valid legal argument, because there would be no way to predict how a court might rule on any given day.

What I meant to point out was only that, as a matter of fact, stare decisis is not an absolute principle, and that the Courts do find a way to mold their interpretation of the Constitution to fit current notions of justice. In that sense, the Constitution is a living document. That is a good thing, in my view, for the reasons stated by SingleDad.

12

Allright. I’m not attempting to be insulting here, but I noticed that the average post size on this thread is like five times normal, and all of the posters seem to have legal backgrounds, or at least legal understandings. Coincidence?

13

(chuckling at the notion of being taken to task here for being a) thourough and b) involved in the legal process)

As usual, reality needs be lies in the middle of two potentials.

Taken to its logical conclusion, stare decisis would mean that any point of law decided would have to be accepted as decided forevermore. This, of course, is silly. Courts make mistakes the same as any other people do; courts have to be able to correct those errors. But, at the other end, if a court didn’t feel that precedent was of any value, that each time the same legal issue presented it should be re-examined and re-decided as the current court saw fit, there would be considerable difficulty in our system. At a minimum, our legislatures and executives would end up making our lives a seesaw battle between competing ideologies as expressed in governmental actions. Such places do exist; I, for one, am glad I am not there.

However, I am also glad that Plessy v. Ferguson is not still the law of the land; that Lochner doesn’t typify current thinking about economic legislation; that The Slaughter-House Cases no longer prevent the court from using the due process clause of the 14th Amendment to stike down legislation that attempts to remove from citizens basic ‘rights’. While I remain wary of any attempt of the nation’s highest court to engage in revisionary decision-making, we can’t be slavish followers of stupid thinking, either.

As for the issues regarding the English constitution, let me make something clear: I, personally, do not necessarily agree with our founding fathers in their view that a written Constitution is a needed bulwark against tyranny. Frankly, the English constitution (or, if you prefer, the constitution of the United Kingdom, though that is a different thing really; let’s compromise and call it the British constitution :wink: ) is a much better bulwark against tyranny than the Soviet constitution was (clearly!), but the Soviet Union had a written constitution that, on its surface, mirrored many democratic institutions. Of course, there was this little thing about having only one party…

Contrary to the assertion by Akatsukami, the Crown would NOT be able to simply dismiss the Bill of Rights, which DOES remain, in modified form, the law of the land (the guarantees therein may well have been subsequently renewed in later Acts of Parliament; it’s been a long time since I studied English constitutional history). Indeed, in many ways, it was the insistance of James II of England in ignoring the guarantees renewed in the Bill of Rights that caused the people of England to chuck him out on his ear and invite his daughter and her husband to assume the throne. In short, you muck with the constitution at your peril! (Side note: look how hard it was for the Labour party to eliminate hereditary peerage from automatic seats in the House of Lords, an institution that serves little vital legislative function any more)

Similarly, in this country, I remain convinced that our Constitution remains relatively safe. Mind you, we DID manage to pass Prohibition, but we recovered our good senses and eliminated it shortly thereafter. We seem mightily unwilling to tamper with the document even in exigent circumstances: we didn’t pass a single amendment regarding the Civil War itself, and only passed a prohibition of slavery after the war was over and everyone could be nice and level-headed about it all. For this reason, I don’t fear our military taking over some night, I don’t fear the extremists in either party becoming all-powerful, and I usually reserve my constitutional worries for whether or not Kennedy and O’Connor are gonna flip the coin and get heads or tails. :wink:

14

And I thought Lib and I were the long-winded SOB’s on this board!

In all seriousness, an excellent analyses by all. I learned quite a lot today. :slight_smile:

“Reality is that which, when you stop believing in it, doesn’t go away”. - Phillip K. Dick

15

DSYoungEsq writes:

Now, note that I did not say the Crown, but rather the Crown in Parliament.

It has, at least since the (English) Civil War, been a tenet of English (British, etc.) law, that the legislative function belongs to Parliament (the question of the dispensing power to a little longer to resolve, but was pretty well settled by the Glorious Revoluton), but that the Crown has an absolute veto over all legislation, this stemming from the origin of the Bill of Parliament as the petition of the Commons to the Crown (of course, the Crown has not exercised its veto since Queen Anne’s reign, and, if it did, the monarchy would likely last about five minutes; not even the current Parliament and government, however, has yet dared to dispense with the Crown’s formal assent to its legislation).

“I don’t just want you to feel envy. I want you to suffer, I want you to bleed, I want you to die a little bit each day. And I want you to thank me for it.” – What “Let’s just be friends” really means

16

The one thing that has not been defined is what is the “law” is that all laws or laws based on humand rights, if so what rights? To say that the law (that is all laws) is based on morality can not be true. There were laws that kept slaves in bondage. There are so many laws that are just stupid. In some states you can not let a dog walk across a bridge, others you can not enter with a duck on your head. The concept of law has been debased by making so many of them that you can not live without breaking some of them. If all of these senseless laws are not enforced (with good reason) then that is again a debasement of law.

ILLEGITIMUS NON CARBORUNDUM EST

17

All law is rooted in the mores of the people who establish the government, Action Jackson. When we pass a law that places seemingly silly limits on individual people, we do so because our current mores and beliefs include the belief that it is more important to address the needs of society as a whole than the needs of a single person. Mind you, often laws are imperfect in achieving their underlying goal. But underlying the law is some belief that makes the law something the society through its governors feels necessary.

As for the issue of bad laws, like allowing slavery, that actually points out the difficulty in achieving the desire of legal positivism. Analytically, we can say: slavery is wrong, it should not be part of any legal system. We can then feel quite grand that we have reached this conclusion; after all, who can argue that slavery is a good thing? Then, of course, we wonder: “what do you do with prisoners; is it ethical to use them as laborers?” or “is it okay to allow a person to sell himself into slavery?” When we try to answer such questions, we run into the clash of beliefs that actually underly the whole concept. One belief is that man should not be property of other men. You can state this as a belief, but you can’t state it as an absolute that is discernable without reference to belief. Thus, as our beliefs change, mature with time, we reach newer conclusions about slavery, but we cannot couch it in absolutes without being severely provincial in our approach to human life.