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Legal Theory: Naturalism vs. Positivism

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What philosophy of law do you generally adhere to?

Natural Law Theory
22
58%
Legal Positivism
7
18%
Other
9
24%
 
Total votes : 38
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Post Wed Mar 05, 2008 8:43 pm
What philosophy of law do you generally adhere to?

Natural Law Theory: Justice is a necessary condition of law (i.e. the validity of law is measured according to a higher standard, such as morality or natural rights). You do not have an obligation to obey an unjust law. Leading thinkers include: Aquinas, Locke, Fuller, and Finnis.

Legal Positivism: Law is law. It is entirely conventional and valid as long as it is a product of the legal system. It must be obeyed whether it is just or unjust. Leading thinkers include: Bentham, Austin, and Hart.
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Post Wed Mar 05, 2008 8:54 pm
Legal positivism because natural rights are "nonsense upon stilts".
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Post Wed Mar 05, 2008 9:26 pm
Natural Law makes much more sense to me. The law is inherently conservative so too much legal positivism would only grind us into the past.
Quote:
"nonsense upon stilts".

hehe
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Post Thu Mar 06, 2008 1:09 am
Legal positivism is way too popular (especially among conservatives), which is worrisome. Positivism is basically an invitation to tyranny, or at least to some degree of authoritarianism.

I'd say more people need to embrace natural law theory.
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Post Thu Mar 06, 2008 1:45 am
No one should be obliged to abide by unjust laws. Law infractions should be judged on a case to case basis.

Jay-walking is illegal, but there's a difference between doing it at 4 in the morning when not a car is in sight, and 4 in the Afternoon in the middle of rush hour.
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Post Thu Mar 06, 2008 2:09 am
I think minor violations like jaywalking, speeding or using drugs should only be an aggravating factor, rather than a crime in and of themselves. Like for example if you're going 120 in a 25 zone you don't get stopped for that, but if you kill somebody that adds like 5 or 10 years automatically to the manslaughter charge. Same with being under the influence of narcotics, or jaywalking.
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Post Thu Mar 06, 2008 2:40 am
Other.

Neither. I believe that we need to know what justice is, what brings most justice, and then fight for it.

Natural law can bring as much tyranny as legal positivism.
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Post Thu Mar 06, 2008 2:44 am
Quote:
Neither. I believe that we need to know what justice is, what brings most justice, and then fight for it.


The OP wrote:
Natural Law Theory: Justice is a necessary condition of law (i.e. the validity of law is measured according to a higher standard, such as morality or natural rights). You do not have an obligation to obey an unjust law. Leading thinkers include: Aquinas, Locke, Fuller, and Finnis.


Natural law isn't necessarily libertarian law. We libertarians just believe libertarian law to be the most just.

You can easily believe some other set of laws is more just, and those would be natural laws to you.
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Post Thu Mar 06, 2008 2:49 am
No. I don't believe that what's just is natural. That implies that humans are inherently just, which is obviously false.
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Post Thu Mar 06, 2008 3:11 am
Hey, I'm just going off the OP's definition here.

But I agree with you on that. Humans aren't naturally just.
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Post Thu Mar 06, 2008 3:26 am
Abood wrote:
I believe that we need to know what justice is, what brings most justice, and then fight for it.


Quote:
I don't believe that what's just is natural.

Some of disagree - that which is just can be natural (though not all that is natural is inherently just).
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Post Thu Mar 06, 2008 4:51 am
I cast a vote for natural law. I also believe reckless endangerment (like drag racing in a school zone when kids around) is a crime.
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Post Thu Mar 06, 2008 5:43 am
Quote:
Some of disagree - that which is just can be natural (though not all that is natural is inherently just).
I believe that human nature is flexible; it's not set in stone. Anything can be part of human nature. All they need to do is adapt to it. Therefore, arguing that something is "human nature" is really disastrous, because it's used to justify terror and exploitation--"it's the only thing that works." It's probably the cheapest argument I've heard for the "justification" of capitalism. It was also used as an excuse for all sorts of tyrannical and oppressive regimes.

We need to stop using "human nature" as an excuse to fight for/justify systems, but rather, try to argue that it's the most just system. Everything can be human nature, so it's not an argument for any political or economic system.

You might call me a naturalist because I believe that justice is part of human nature, but as I said, I believe that every sort of injustice is part of human nature too.

That being said, I do believe that as human beings are all conscious beings, they have the right to be equal and are of infinite value. But that's not "human nature", because humans don't automatically act on it. The problem is that different people have different beliefs of natural law and inherent rights, so fighting for things on the premise that they're "natural law" is useless. Everyone says, "This is natural law," "No, this is natural law." It is an excuse for tyranny. If you truly believe in justice, you don't have to advocate it as natural law. "Natural law" is the last resort for injustice. Even though I believe anarchism is natural law, I don't convince people into it by arguing that it is. I convince people into it by arguing that it's the most just system. Tyrants can't argue that their system is just, so they just say that it's "natural law".

To summarize, I believe in natural law, but that's not enough to justify the system I advocate.
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Post Thu Mar 06, 2008 6:28 am
So you believe indoctrination is justified, do you?

Because I don't.
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Post Thu Mar 06, 2008 6:32 am
And where exactly did I say that? Quote me on it.
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Post Thu Mar 06, 2008 6:36 am
It's actually a question.

If you believe human nature is something that can be moulded, do you believe that it is justifiable to modify human behaviour to conform your ideal society?
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Post Thu Mar 06, 2008 6:47 am
Did you even read what I said? I said I believe in natural law, and that is the system I advocate, but I don't believe that it is a sufficient argument to justify anything, because a system needs to be just.

I believe that human nature can be molded, so it needs to be molded on what's the natural order of things. However, we need more than just say "this is natural, let's do it." We need to convince people that it's just...

Do I need to rephrase again?
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Post Thu Mar 06, 2008 7:41 am
Other.

Laws are the opinions of men with guns, and obeying them is strictly a matter of self-preservation. There are, essentially, two forms of "good law": laws which adhere to behaviors I am already inclined to, and laws which influence society in a direction that I approve of. However, the fact that they are laws is morally irrelevant to my decision-making, which would include violation even of "good law" if it is necessary to my moral agenda.
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Post Thu Mar 06, 2008 10:29 am
Other.

A bit of both, I would say, though I am leaning in the direction of legal positivism (which still assumes that there is some flexibility when interpreting laws).
I would be willing to obey any law, even if I deem it unjust or unnecessary (unless of course obeying the law would imply having an obligation to murder, to deprive others of their rights etc.), because I wouldn't want to bring about the destruction of the social fabric of society, others would expect me to act in accordance with the laws (reciprocity) etc.
I subscribe to the notion that the evils wrought by anarchy are worse than those wrought by incompetent authorities. Laws (in democratic states) provide a guide against subjective morality and in most cases have already been weighted with regards to their potential to advance justice, certain utilitarian considerations or other aspects. In multicultural states there may be many different conceptions of justice, so positive law is essential.
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Post Mon Mar 10, 2008 3:55 am
Quote:
Natural Law Theory


I don't quite see how someone would choose legal positivism at all, natural law contains that and accommodates for any wrong that legal positivism might have.
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