Natural law VS Positive law

Blue Nebula (@Blue-Nebula) 8 years, 1 month ago

Hey people! I’m studying Law, and I wanted to have your opinion on something, two basic concepts called “Natural law”, and “positive law”.

Natural law refers to every “human rights”, such as your right to live, to have a fair trial without discrimination, your right to believe in whatever you want… In general, the main idea is that “you are as important as the State” (I’m exagerating, but there’s no need to lose ourselves in too many details)

Positive law is, basically, “the law applying now in your country”. Positive law isn’t supposed to be moral, or just. Morality isn’t the objective, we’re searching here for a system that works. The State (here, the specific term is “public interest”) is everything, you, as an individual, are nothing but a fraction of that public interest.

In our actual society, we are using both of these systems. With which system would you agree with?
IMO, I think a 100% natural law country would be impossible with our actual level of social consciousness; we wouldn’t be able to control ourselves from stepping into each others individual liberties.

In French law, there is a quote saying “La liberté de chacun s’arrête où commence celle des autres” (-Rousseau); One person’s freedom ends where another’s begins. Since we’re unable to control ourselves, the State still has the obligation to do it for us.

October 28, 2013 at 3:27 pm
Manimal (2,998) (@manimal) 8 years, 1 month ago ago

@blue-nebula, “In our actual society, we are using both of these systems. With which system would you agree with?”

-With neither with.

They’re both just ways to limit and homogenize the people. The two laws fit perfectly together.

“Since we’re unable to control ourselves, the State still has the obligation to do it for us.”

-You don’t need to be under control. And if you did, but couldn’t pull it off yourself, maybe it’d be for the better that the issue wasn’t maintained.

The state has neither obligation nor right to control the people.

Besides, if you can’t control yourself, nobody can control you.

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Blue Nebula (3) (@Blue-Nebula) 8 years, 1 month ago ago

@manimal, I chose a wrong term, instead of the State “controling you” I should’ve said “guiding you” (the perks of not being a native speaker!).

“The state has neither obligation nor right to control the people.”: I don’t agree with you. I think you have a really negative image of the State, since you’re probably using the actual state you’re living in as an exemple. The “contract” you agreed with takes away from you certain possibilities, such as doing your own justice. In exchange, the State protects you.
In a utopian world where everybody is aware of each others individual rights, there, I agree with you, there’s no need to have a State. But rationnaly, in our actual world, if the State suddenly disappeared we would just annihilate each others within days.
That’s why I said that since we can’t control/guide ourselves, the State has to do it for us.

But the part I totally disagree with is when you say: “Besides, if you can’t control yourself, nobody can control you”. Could you sincerely imagine that now? Being your own master? People aren’t ready for that. Maybe you are, most of the people on HE are probably ready too, but certainly not the whole population. They’re too immature and selfish for that

Thank for answering btw :) love to have contradictory point of views

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Martijn Schirp (112,780)A (@martijn) 8 years, 1 month ago ago

@blue-nebula, I don’t think either work, since they are both fundamentally based on violence.

All law positing is based on the mythical circle between means and ends. Natural law states that some ends are natural, God given, etc. Any violence as means that is used to get to such an end is justified because the end is just. (Marxism and Fascism come to mind). Positive law are the laws that are historically made, not natural as such, but human constructions, like certain political procedures, for instance, democracy. Here, the ends that are violent are justified because the means is just. (For instance, the war crimes in Iraq by the US is justified because it was legal).

I am actually working on a paper that criticizes both through the perspective of Walter Benjamin (he is a notoriously hard read, but perhaps there is an easy introduction to his work). Please remind me of this topic in two months and I will be able to give a more in depth explanation.

All I understand right now is that both, in order to preserve themselves, are fundamentally based on violence, never reaching justice itself. In other words, both are corrupted by the violence it necessarily needs to enforce the law. Natural law often, then, refers to the fact that violence is a natural aspect of being human, or evolution, or part of God, Nature, or any other really big thing we like to refer to as some transcendental unity. From this framework, you can never really criticize violence as such. Positive law is more interesting because this implies we can find means that are non-violent, independent of any ends. This is exactly what Habermas tries to do with his non-violent communication etc. A kind of Rousseau-ean radical democracy.

If you want, we can perhaps discuss this paper here?

http://www.academia.edu/1111547/Undoing_Legal_Violence_Walter_Benjamins_and_Giorgio_Agambens_Aesthetics_of_Pure_Means

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Manimal (2,998) (@manimal) 8 years, 1 month ago ago

@blue-nebula, “you’re probably using the actual state you’re living in as an exemple.”

-Nope.

“The “contract” you agreed with takes away from you certain possibilities, such as doing your own justice. In exchange, the State protects you.”

-I am not under any such agreement.
The state has never protected me, nor have I ever wanted or really needed protection; and if I ever did, I would be left hanging.

“In a utopian world where everybody is aware of each others individual rights,”

-There is no true utopia, only opinions.
Aware of each other’s rights? That’s a strange notion, considering the fact that there really are no birthrights. None whatsoever.

“if the State suddenly disappeared we would just annihilate each others within days.”

-That’s just an assumption, you have no idea what would really happen.
And even if that’s the way things turned out, is it really a bad thing? And why would it happen, if there’s a reason then there’s a reason, why fuck with it?

“That’s why I said that since we can’t control/guide ourselves, the State has to do it for us.”

-It’s not a matter or can or can’t. Everyone is capable, they just don’t do it. That’s a choice. If people needed a state, we wouldn’t exist, because the state wasn’t around back in the day.

“People aren’t ready for that.”

-What the funk? Of course we are, we’re born ready. There wasn’t always a state, and people could clearly handle their shit… now if we’ve evolved we should be even more capable.

It doesn’t matter if someone is immature or selfish, they’re still ready nonetheless.

“Natural law” is not natural at all. “Positive law” is not very positive either.

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daniel (24) (@dany) 8 years, 1 month ago ago

You guys can argue in circles as much as you like.The fact is that none of them work because otherwise we would not have this community where people aspire to a “high existence’,we would already live in one.Of course,the combination of them has allowed the human society to survive in its ignorance so far,but the point is that these concepts are not good enough anymore,as they are both based on violence,like Martijn said.

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Blue Nebula (3) (@Blue-Nebula) 8 years, 1 month ago ago

@martijn, I will certainly remind you in two months to talk about it!
I quickly read the first few pages, and though the terms aren’t always easy to understand (since I have to translate everything as I read), I’m sure you gonna have loads of stuff to talk about.

This State of Exception, it’s the ability for a government to momentarily suspend the law and its rules, to take “special decisions”, right?

And your problematic is interesting. I suppose you’re studying in English? In France, we have to study a LOT the revolution (1789), and it is true that law, which is supposed to prevent violence (or at least diminish it) requires violence in order to work.
So I think that’s where your personnal ethics come in the equation; sadly, Law considers moraliy as a subjective parameter, even worse, to be inferior to law…

Do you think if the power came from God, but not a specific God, things would go better?

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Ray Butler (1,423)M (@trek79) 8 years, 1 month ago ago

@blue-nebula, There is a saying by Edmund Burke that basically says; Freedom depends on self control, the level of intervention by society depends on it, the two are relative.

But of course an individual is as important as the collective, without individuals there would be no collective, without individual importance there would be no point in having a society.

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Martijn Schirp (112,780)A (@martijn) 8 years, 1 month ago ago

@blue-nebula, Great points and questions.

Yes, it is the moment that the state doesn’t follow it laws, and this has become a practical thing of all modern states. There are no laws about laws, no bigger laws the govern the state, since the state makes it own laws. For instance, Australia made a law that when immigrants arrive at land with a boat, they didn’t, in fact, reach Australia, and therefore, had no right (law) to apply for a visa. Another example is the discourse modern states often use, it is everywhere: In order to protect your fundamental rights, freedom, democracy etc, we have to momentarily suspend these. We protect your right of privacy with monitoring all your calls. They can do this to designate a certain group, for instance, terrorists, and connect them with a permanent state of exception. The law doesn’t apply to them. (or it doesn’t apply to certain countries we would like to invade). And then slowly, they just pick, as they please, certain people who fall in that state. We search all your information, we suspend your basic rights, because you could be aiding a terrorist, which is a threat to your basic rights (de facto, turning the state into a terrorist itself. The illegal holding of the partner of the journalist who disclosed the snowden leaks come to mind).

I am actually studying Philosophy. And you pose an excellent question regarding God. May I ask what made you ask it in the first place? What you are suggesting is very Derrida-ean (His Force of Law book is probably very easy to find in French). I have to get back to you on that, since it will be a central question to my paper.

On a sidenote: French education is in my opinion one of the best, especially with their connection to philosophy, revolution, social justice etc.

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Blue Nebula (3) (@Blue-Nebula) 8 years, 1 month ago ago

@martijn
You’re right when you say this State of Exception is linked to terrorism, and fear itself. 9/11 really changed the way Law works, and how governments use it.

I have a great course called “History of Law”, which is particularly aimed at France, but we still study other movements of thoughts. Machiavel, when he wrote “The Prince” (great book, but you probably know it already), wanted to restore the authority of the State, and considered the Law to be its instrument.
Hegel, a german philosopher, wanted the same for his country; a strong State, where the subjection to Law would be obligatory, and of course, its non-compliance punished.

In my opinion, the reason why this State of Exception can exist is because the whole concept of Law is based on violence, as you said, but most of all on fear. You don’t obey the Law because you agree with it, or identify yourself in it, but because you’re afraid of its omnipotence. To take again the french exemple, the “Code Civil” takes as a model what we call “l’idéologie du bon père de famille”, the ideology of the family guy. The “perfect citizen” has an estate (so he has something to lose), and a family (something to protect).
That’s where Law take the source of its power: your fear to lose something, and to be punished.

And you asked me why I thought about God. I’ve been deeply touched by “Conversation with God”, and even if I didn’t agree with everything (especially the part concerning love-relations), I’m sure we can use its wisdom in our society somehow.
If we can use with caution God as a parameter (and I don’t mean by it to link religion entirely to Law, but some basic concepts of it), and stop considering God as a possible threat to our sovereignty, but more as an addition to our everyday relations, the overall concept of Law will become obsolete after a while.

Thanks for your feedback on French education! Sadly, it’s not always the case: extreme right-wings parties are beginning to grow more and more lately, and it has some consequences on education..

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Josh W (19) (@mightywelsh) 8 years, 1 month ago ago

@blue-nebula, This whole thread is pretty fascinating and I hate to jump in and derail a great exchange….But this “l’idéologie du bon père de famille” intrigues me…it seems to me that this “family guy” is and will continue to diminish as the average…do you (or anyone) think its possible that we see a more universally appealing average citizen and that by shifting that paradigm we might see an evolution in law that focuses on the “individual freedom” that @trek79 mentioned?

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Blue Nebula (3) (@Blue-Nebula) 8 years, 1 month ago ago

@mightywelsh, you’re not derailing anything, I’m glad you joined the conversation! My objective is to have as much opinions as possible, compare them with mine, and possibly create a new one.

That’s a tough question. To answer it, I just have to make a quick résumé of the french history.
Before 1789, there was the “Ancien Régime”, which was a monarchy where the power came from God (I’m simplifying a bit). During the revolution (1789), the people did a rebellion against this power, killed the King and made the “Déclaration des Droits de l’Homme et du Citoyen” (human and citizen rights), and the Constitution. After that, France was in a transitional phase, where half the population (the aristocracy, “la bourgeoisie”) wanted to keep their goods and advantages, while the other half (the people, “les révolutionnaires”) wanted equality. Napoléon came, and though he was still a monarch, he avoided taking decisions by himself (see “the separation of powers”, if you’re interested).

So on one hand, there was the Constitution and the Declaration des Droits de l’Homme who protected the “people”, while the Code Civil was much more aimed to protect the “bourgeoisie”.

Now to answer your question, I’d say that we should consider the Law to be timeless and honourable. Again, I don’t want to lose you with details, but “the formal sources of Law” (the context in which Law is created) are influencing the nature of the Law itself. For instance, if at a specific time, your goal is to strenghten the power of the State, the Law wont be really tolerant with the people.

We should ditch this “Idéologie du bon père de famille” for a more general, appealing, loving “source of Law”. But this “new Law” isn’t possible if the old one still exists, since people will always find interest in this imperfect system (call this the “new bourgeoisie”).
And how can we do that? That, I never really thought about it, but I’m sure @martijn, did!

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Josh W (19) (@mightywelsh) 8 years, 1 month ago ago

@blue-nebula, great stuff….as an American (for myself anyway) its easy to assume the current system of law (which seems to be headed more towards an emphasis on positive law) is the only viable option, since we have little to no variety in our history. While I don’t ever hope for bloodshed, we do seem to be due for a revolution of our own.
As for separation of power…The U.S. has all systems in place for true separation of power, however, I believe we’ve abandoned the original motivation and our branches of government have become manipulators of the system with the sole intention of furthering the state. The first example that comes to mind was our attempted involvement in the Syria crisis. While congress is the only branch of government able to declare war, our president made it quite clear that overstepping his authority was as easy as arguing the semantics of the phrase “going to war”.
“…”the formal sources of Law” (the context in which Law is created) are influencing the nature of the Law itself. ” <This is right on and since "god is dead" I agree that its high time that we found a new motivation for new law…but as you said…how do we do that?.

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Blue Nebula (3) (@Blue-Nebula) 8 years, 1 month ago ago

@mightywelsh,
I love your questions man, it forces me to think.
The ideas I’m about to express are already existing, I mixed them up a bit (“Conversation with God – Book 2” (Neale Donald Walsch); “Understanding power” (Noam Chomsy); and “1984” (George Orwell)).
That’s a really wide subject, I can’t answer it like this, but I’ll try to sum it up.
The State, beside the negative aspects we think about immediately (corruption, injustice…), can be benefic. The example given by Mr. Walsch is absolutely perfect; since we can’t afford/want to take care of our old parents, give them money or else, the State does it for us. So its role is, somehow, to do what we can’t, or don’t want to do.
However, I think the State is considered now as a threat (1984 – NSA scandal), because of the stupidity, selfishness and egoism of only a handful of people. But we still think that this State, as evil as he can be, still has the obligation to protect us, and take care of us. So, technically, we are resting on a State (and on a system, in general) who is imperfect, yet we still “add” more obligations on it, and expect more and more from him. It’s a vicious circle where the wealthiness of some implies the despair of others.

We are well aware of these inequalities, but we still choose to close our eyes and count on an imperfect State to solve all problems.
So the States, and Law itself is an imperfect answer to our own imperfections.

The first step to a better system would be to radically change education itself. Again, perfectly explained in Mr. Walsch’s book, we learn the “facts” (history, politics, maths…), but we never learn the “essence” of it all, our opinions are never asked. We don’t want our child to disagree with us, that would mean the end of our current system, so we teach them “democracy” as we know it now as the best system.
As Churchill said: “It has been said that democracy is the worst form of government except all the others that have been tried.” So we start from the principle that our current situation is imperfect, but still the best of all the possibilities.

But if we want to change the State, we have to change ourselves before. The State won’t change us, but we will. And thanks to HE, we’re on the start of something here.
I could write on for hours haha! Tell me your opinion, and if you think I’m wrong (partially or completely), please tell

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Josh W (19) (@mightywelsh) 8 years, 1 month ago ago

I think you must be right…creating an atmosphere of open communication that encourages honest discussion is crucial for the healthy development of the next generation of thinkers and doers. I do also agree that this is probably key in creating a significant change in our system of thought.
I suppose the practical application then for those who have already completed their formal education is to invest time and thought into implementing those changes in our educational system.
Although, to be honest…it seems like too daunting of a task…
There are some very easy mind-set changes that everyone can make (i.e. committing to loving selfless interaction with each other and accepting that popular opinion is not always truth) and yes, HE is leading the charge in this area…but the pessimist in me thinks that it can’t possibly be enough.

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