It's not easy, running a gulag

[Louis VI the Fat]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.


@Pindar and Soulforged. You two are responding with legal arguments to HoreTore. Or dare I say, legalistic. He initially did present his case as a legal argument, while failing to come up with a legal argument. But he changed to the sphere of legal philosophy in his last post. If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.
HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.
I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.
It has no direct bearing on the current topic. Gitmo is tiresome and I don't feel like getting into it.

[HoreTore]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.

Quite so.... Along with world governments and such things...

[Soulforged]

If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.

Both are philosophers of Law. But if he were indeed a Dworkin he still has no need of the international law.

HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.

But this is incorrect Louis. It's not because of the UDoHR that we can argue about contradictions, it's because we've certain moral principles, with or without such Declaration. However Hore clearly wants the Declaration to create a legal obligation. And even if all were right, I don't know why you don't consider it to be an attempt of legal arguement.

I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.

EDIT: Philosophically speaking it's incorrect to confuse moral with Law. While there's such a thing as objective Law there's only an objective morality in form of hipotesys and it's not appiable to every time and space on the same form. Both have different origins and don't necessarily affect each other. This doesn't make any moral critique implausible, but it certainly does when the question is: "Wich precepts have been violated?", for this we have to return to the definition of Law. The philosophy of Natural Law tries to apply a moral requirement to law, wich has nothing to do with its definition, and confuses things even more. If we have the Law defined then we can make a plausible arguement against or in favor of the subject at hand, and we can answer that question easily. Anyway if we really don't want to return to the principle of all this discussion and you're looking only for an answer to that question, first I'll say that HoreTore is indeed attempting a legal arguement, second the only coherent answer to Pindar question is a legal arguement, and third even if I failed on both previous accounts HoreTore fails to see the difference between moral and Law for the reasons exposed.

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.

I disagree there's no such self-evident truth, and the americans are one of the best protecting this human rights. It will be nice if they did ratified some convention on human rights to have an insurance above their Constitution and a resource above their national organs, but it seems that they don't really need that.

[Louis VI the Fat]

The Declaration of Human Rights (DHR) out of the U.N. is a piece of rhetoric. It cannot be taken for more given the legal standing of the U.N. and the moral absurdity that confronts the U.N.

a natural law position that no legal position that goes against the DHR carries, or rather, should carry, legal status.

But this is incorrect Louis. It's not because of the UDoHR that we can argue about contradictions, it's because we've certain moral principles, with or without such Declaration. However Hore clearly wants the Declaration to create a legal obligation. And even if all were right, I don't know why you don't consider it to be an attempt of legal arguement.

I did consider it an attempt at a legal argument, but I wasn't interested in that argument itself, nor Gitmo or anything.

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

Sorry for lumping the two of you together btw.

[Husar]

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

That sounds very healthy to me.

Isn't that the reason why many countries have something like SCOTUS (Bundesverfassungsgericht/Federal Constitutional Court of Germany, I think is the equivalent here) to see whether a new law is constitutional and possibly moral?
I'm really just asking, my legal jargon, unlike yours, is almost nonexistant so please bear with me.

The way I see it, since these judges decide about laws, they cannot always apply laws, but have to use morals and what I'd call wisdom for their decisions. Whether they succeed in that or not is another matter, however.

[Don Corleone]

I think Louis has hit the nail on the head and said in one phrase what I've wasted pages speaking to. While not a legal argument, the question of the detainees at Gitmo not being charged or allowed to know the charges against them offends 'natural law'. Sure, the law may legally allow the suspension of their rights. The law is written by man. But Louis's very eloquent Natural Law argument is one I wish to second.

[HoreTore]

I think Louis has hit the nail on the head and said in one phrase what I've wasted pages speaking to. While not a legal argument, the question of the detainees at Gitmo not being charged or allowed to know the charges against them offends 'natural law'. Sure, the law may legally allow the suspension of their rights. The law is written by man. But Louis's very eloquent Natural Law argument is one I wish to second.

Seconded again. Or would that be "thirded"?

[Louis VI the Fat]

I wonder, Husar, whether we aren't having one of those continentals versus the rest discussions. It is by no means coincidental that I would've come up with an example of 'racial and genocidal laws'. There's a history to it, eh? Germany, France or Norway, we, our judicial systems, all messed up last time that legal positivism was in vogue.

Here's a famous legal theorist, exemplary for the shift in opinion in (continental?) legal theory from extreme positivism to natural law after 1945:

Spoiler Alert, click show to read: 

Gustav Radbruch, born November 21, 1878 in Lübeck; died November 23, 1949 in Heidelberg, was a German law professor and political figure.


Life
Radbruch studied law in Munich, Leipzig and Berlin. He passed his first bar exam ("Staatsexamen") in Berlin in 1901, and the following year he received his doctorate with a dissertation on "The lessons of adequate Causation." This was followed in 1903 by his qualification to teach criminal law in Heidelberg. In 1904, he was appointed Professor of Criminal and Trial Law and Legal Philosophy in Heidelberg. In 1914 he accepted a call to a professorship in Königsberg (today's Kaliningrad), and in 1914 he accepted one at Kiel.

Radbruch was a member of the Social Democratic Party of Germany (SPD), and held a seat in the Reichstag from 1920 to 1924. In 1921-22 and throughout 1923, he was Justice Minister in the cabinets of Joseph Wirth and Gustav Stresemann. During his time in office, a number of important laws were implemented, such as those giving women access to the justice system, and, after the assassination of Walter Rathenau, the Law for the Protection of the Republic.

In 1926, Radbruch accepted a renewed call to lecture at Heidelberg. After the Nazi seizure of power in 1933, Radbruch was dismissed from his civil service post, as the universities were public entities. During the Nazi period, he devoted himself primarily to cultural-historical work. Immediately after the end of the Second World War in 1945, he resumed his teaching activities, but died in 1949 without being able to complete his planned updated edition of his textbook on legal philosophy.





[edit] Work
Radbruch's legal philosophy derived from Neokantianism, which assumes that a categorical cleavage exists between Being (Sein) and Should (Sollen). According to this view, "Should" can never be derived from "Being." Indicative of the Heidelberg school of Neokantianism to which Radbruch subscribed was that it interpolated the value-related cultural studies between the explanatory sciences (Being) and philosophical teachings of values (Should).

In relation to the law, this triadism shows itself in the subfields of legal sociology, legal philosophy and legal dogma. Legal dogma assumes a place in between. It posits itself in opposition to positive law, as the latter depicts itself in social reality and methodologically in the objective "should-have" sense of law, which reveals itself through value-related interpretation.

The core of Radbruch's legal philosophy consists of his tenets the concept of law and the idea of law. The idea of law is defined through a triad of justice, utility and security. Radbruch thereby had the idea of utility or usefuleness spring forth from an analysis of the idea of justice. Upon this notion was based the Radsbrucian formula, which is still vigorously debated today. The concept of law, for Radbruch, is "nothing other than the given fact, which has the sense to serve the idea of law."

Hotly disputed is the question whether Radbruch was a legal positivist before 1933 and executed an about-face in his thinking due to the advent of Nazism, or whether he continued to develop, under the impression of Nazi crimes, the relativistic values-teaching he had already been advocating before 1933.

The problem of the controversy between the spirit and the letter of the law, in Germany, has been brought back to public attention due to the trials of former East German soldiers who guarded the Berlin Wall--the so-called necessity of following orders. Radbruch's theories are posited against the positivist "pure legal tenets" represented by Hans Kelsen and, to some extent, also from Georg Jellinek.

In sum, Radbruch's formula argues that where statutory law is incompatible with the requirements of justice "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle. Since its first publication in 1946 the principle has been accepted by Germany's Federal Constitutional Court in a variety of cases. Many people partially blame the older German legal tradition of legal positivism for the ease with which Hitler obtain power in an outwardly "legal" manner, rather than by means of a coup. Arguably, the shift to a concept of natural law ought to act as a safeguard against dictatorship, an untrammeled State power and the abrogation of civil rights.

In France, like in Germany, the Conseil Constitutionnel, the constitutional council, tests laws not only for compliance with the constitution, but also, since after the war, with general principles of morality. In effect, against the Declaration of the rights of man and of the citizen of 1789, which is assumed to be universal.
Courts too, from the highest to the lowest, can refuse to follow laws and directives that are contrary to general principles of morality as expressed in declarations of human rights.

[Edit: "I wonder, Husar, whether we aren't having one of those continentals versus the rest discussions". apparantly not, Don C. posted while I was typing this post]

[Husar]

I think when it comes to morals I can almost always agree with Don C, he's almost a continental in that regard.

I think the word judge in itself says that a judge should be able to do more than follow strict guidelines, he should judge a case based on his wisdom(which he hopefully has) and sometimes according to the law.

IMO laws are originally meant to be the written form of morals which are enforced by the state. Of course today we have a whole "industry" around them and they cover a lot more things, but essentially many of them still say "don't steal", "don't kill" etc. We just managed to make them a lot more complicated.

[Soulforged]

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.

I've to leave something very clear, I'm all about human rights. Between those human rights (politic rights) there's one called the right to self-determination, this is at the center of the UN spirit, and it doesn't matter how contrived it might seem, the americans have decided that none of the Conventions should be ratified, and on this situation I cannot argue more than from a moral point of view, from that moral point of view I see this detention centers as aberrations, but it's an american aberration only...

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

Judges must return, at least in my legal system, to moral principles only as ultima ratio, there's a lot that they've to observe first in order to reach that point. This is simply because every case has to reach a resolution. My opinion is that that shouldn't change, processes and forms should be respected in principle everytime because outside them there's chaos, and this rule should be observed with more care as we escalate on the importance of the position and the decision. There's a process that we can access in my country outside our legal limits, wich is the international process for human rights. As I said this has to be put on context as the US has not accepted such process before the corresponding organs, though I'm of the opinion that they should have done it. What you said is very important Louis, and if now we have certain moral rules introduced in the rigid and sometimes injust structure of law is because of the estimuli of the philosophy of Natural Law. But this same philosophy confuses doctrine with identification too much for the good of its own coherence. There's no need to accept the premises of Natural Law to gain its advantages.

[Pindar]

I'm not confused, I'm simply astonished.

Your astonishment is a reflection of your confusion. See The Don's post: 121 particularly this: "Pindar is highlighting for you that making a statement and having the enforceability of an actual statute are two different things."

Well, the feeling I was left with after reading his posts...

Not to sound harsh, but when reading my posts the actual language I use is important. It trumps feelings.

[Pindar]

No, what struck me was the ease with which you and Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law. Within the scope of the current argument that the DHR carries no legal status, I can see what you are arguing, and why.

My posts have been in response to the positions offered insofar as I could understand them. I asked specifically about whether legal argument(s) were being made and dealt accordingly with such. I have pointed out the distinction between assertion and argument and hopefully justifiability. In short, my posts have looked at the points offered to the table and not any intention that may or may not lie behind them as such is far too nebulous a business.

But in general, would you not accept that positive law is not, nor should be, the final word in legality? (Christ, I really need to brush up on my legal jargon)
It is my understanding that law students here, judges in particular, get taught that morality must override the law in cases of gross immorality. For example, the next time somebody issues immoral racial or genocidal laws again, judges are expected not to sanction them in court again.

If one wants to make an appeal to natural law it can certainly be done. If you are interested in such fair I would recommend Russell Hittinger's work. He is a fine advocate for natural law theory. Here's the rub. One cannot sustain a natural law posture without thereby ascribing to the larger metaphysic that grounds such. This can be a problem for a secular government or individual.

[HoreTore]

Your astonishment is a reflection of your confusion. See The Don's post: 121 particularly this: "Pindar is highlighting for you that making a statement and having the enforceability of an actual statute are two different things."



Not to sound harsh, but when reading my posts the actual language I use is important. It trumps feelings.

You still haven't stated whether you support it or not, nor whether you believe it to be good or not. However, I still have the feeling that you do not, so I'll continue being astonished until you correct me.

[Louis VI the Fat]

Judges must return, at least in my legal system, to moral principles only as ultima ratio, there's a lot that they've to observe first in order to reach that point.

Naturally, and rightly so.

I have pointed out the distinction between assertion and argument and hopefully justifiability.

Naturally, and rightly so.

I would recommend Russell Hittinger's work. He is a fine advocate for natural law theory. Here's the rub. One cannot sustain a natural law posture without thereby ascribing to the larger metaphysic that grounds such. This can be a problem for a secular government or individual.

I had never heard of him before. A quick google led me to this interview with Hittinger. Is there any work of his, any online essays, that you'd recommend in particular?

Also, strangely enough, I would say that natural law is one of the areas where secular and religious metaphysics can be reconciled. An American Catholic theocon and a secular Euro liberal could find agreement.



Here's a very interesting article. It's a PDF so I can't quote from it. It explains why the Americans think they have the better legal arguments, yet the Euros accusse them of lawlessness in international affairs. It is so much a recapitulation of this thread and similar ones it's untrue....

[English assassin]

You still haven't stated whether you support it or not, nor whether you believe it to be good or not. However, I still have the feeling that you do not, so I'll continue being astonished until you correct me

He did, actually.

As to the content of the DHR: by and large I think its good stuff

.

No, what struck me was the ease with which ...Pindar brushed aside the universality of certain human rights, the very concept of it, and your legalistic view of the law.

Well, if a lawyer is not allowed to have a legalistic view of the law, who can?

I struggle with the idea of natural law, qua law. Obviously it may be said to be a natural law that parents love (should love) their children, but in the context of what we would understand by a law, it is a dangerous concept IMHO. Again with apologies for being a tiresome functionalist, for a law to be a law it must in the final degree be enforceable in a court and give rise to real consequences. Otherwise it is comething else, a "nice idea" or an "interesting theory" maybe. Natural law cannot exist in a state of nature, it can exist only in the context of a legal system.

And, as I understand natural law, how does one examine the courts claim to have the right to enforce this law? At least in the UK parliament can legislate to reverse a decision if need be, or to reformulate a whole area if the courts have got in a tangle. What would one do if the courts idea of natural law differed from the people?

Really, other than your faith that the judges would behave wisely, how does this differ from the Stuart claim to rule above the law?*

(*other than the courts having only judicial functions of course)

[Don Corleone]

Pindar,
I disagree with your hinting that an appeal to Natural Law presupposes a higher power. Hobbes talked about Natural Law as that which went against man's nature and proscribing those acts which by their commitment, man would be destroying his inner self (actually rather apropos here). Similarly, nothing in Locke's writings requires a divine being as the guaranteer (sp?) of those inalienable rights. I happen to agree with you that God ulitmately is, but nothing requires a belief in God to accept the existence of inalienable rights and the fundamental nature of man.

I think you're assuming by Natural Law, Louis is borrowing from Aquinas. That's one version of Natural Law, the perfection of the law under man's limited intelligence that approaches, but does not equal divine law. But that's not the only usage.

As long as we're talking about moral imperatives, couldn't I argue that the detention of somebody and depriving him of his liberty without offering proof as to the danger he poses a very un-Christian thing to do? Unlike St. Paul, who I'll grant you seems to endorse better treatment towards Christian brothers than the world at large, Christ Himself actually argues that we are under moral compunction to treat all in the best fashion possible, Christian and non-Christian alike. There is no exception for the 'other'.

[Soulforged]

I disagree with your hinting that an appeal to Natural Law presupposes a higher power. Hobbes talked about Natural Law as that which went against man's nature and proscribing those acts which by their commitment, man would be destroying his inner self (actually rather apropos here). Similarly, nothing in Locke's writings requires a divine being as the guaranteer (sp?) of those inalienable rights. I happen to agree with you that God ulitmately is, but nothing requires a belief in God to accept the existence of inalienable rights and the fundamental nature of man.

The concept of Natural Law in Hobbes corresponds the Natural State of the contractualists, it has nothing to do with the philosophy of Natural Law. However, Pindar never said that one has to accept a higher being, what you have to accept is a metaphisical conception of law previous to human positive action, wich is greater than the latter and therefore this one has to fit the previous one. The first one always emmanates from a higher authority, be it God or the Self Evident principles of Law that are presumed known by everyone through rational process.

[Xiahou]

As long as we're talking about moral imperatives, couldn't I argue that the detention of somebody and depriving him of his liberty without offering proof as to the danger he poses a very un-Christian thing to do? Unlike St. Paul, who I'll grant you seems to endorse better treatment towards Christian brothers than the world at large, Christ Himself actually argues that we are under moral compunction to treat all in the best fashion possible, Christian and non-Christian alike. There is no exception for the 'other'.

Only if you're going to claim that it's "un-Christian" to hold POWs, Don.