Proof of what a national ID service is good for.

[Montmorency]

Exactly which part of this can I not use my driver's license for?

Some of us don't drive.

[InsaneApache]

Some of us don't drive.

Then buy a tent.

[CountArach]

Some of us don't drive.

In Australia you still have access to a "photo card" that is a drivers license for ID purposes but does not allow you to drive a vehicle. That works fine.

[Kralizec]

John Austin would, I believe, disagree with you.

He notes:

"Insofar as non-sanctioned rules and laws that allow persons to do things, Austin says failure to obey the rules does indeed result in sanctions; however, such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control other people.

i.e. argument is framed from the position law 'enable' activity, rather than freedom from.

I took the time to re-read a translation of one of Austin's works (A positivist conception of law) that I had lying around, and I think that Austin would have disagreed with you, not me.

The text you quoted (which you selectively quoted from wikipedia, apparently) only makes sense when you realize how Austin defined "laws" or "rules":
1) an order from a political superior to do something, or to refrain from something
2) under the threat of punitive sanction
3) the order has to be general in scope, and not adressed at particular individuals
This is a rather debatable definition, obviously. The point of the paragraph you quoted is apparently the way Austin rationalized the existence of "laws" that seemingly don't actually force you to do something.

Austin's response to your notion of God given rights of Englishmen or rights based in natural law would be the following: your legislator and judges might have said in the past that certain rights are natural, inalienable or whatever - but it's the fact that it's laid down in a statute or in jurisprudence that makes it legally relevant; i.e. positive law.

As might Bentham: an aside, but the link between continental law and legal positivism, i.e. you rights have been determined by you sovereign, the opposite of natural law.

"The nineteenth century was an era of codification. Systems of customary and judge-made law were replaced with codes drafted by jurists of which the most influential was the French Code Napoléon of 1804. As a result, the work of academic jurists tended increasingly to consist of commentary on and exposition of the codes. There arose from this an ideology expressed in its most extreme form by the French exegetical school. According to this ideology, there was no need to study anything outside the code. The code contained all the law there was and moreover constituted a gapless system capable of yielding an answer to any legal question. There was thus no need or warrant for the use of judicial discretion. The right answer in any case could be deduced from the code. This sort of approach is often described as “positivism”."

That's an interesting article. Assuming that you've read it entirely, you'll have noticed that many "positivists" are actually British: Bentham, Austin and Hart. Except maybe the first, none of those are "radicals" or "reformers". Austin only put forward a definition of "law" based on what he observed.

The term "positive liberty" isn't included in your text, unsurprisingly so because it has nothing to do with legal positivism.
Negative liberty is the freedom from interference, usually people understand this to mean "from the government" but that's not necessarily so - in the broad sense, it's the ability to do as you please without interference from anybody else.
Positive liberty is the freedom from circumstances that otherwise limit you. As Isaiah Berlin noted, a malnourished, illiterate Egyptian peasant who is dying because he can't afford medical care isn't free in any meaningful sense of the word.

Suppose we have a hypothetical country where a government agency feeds orphans and sends them school, free of any charge. This falls under "positive liberty" because the kids are now no longer starving and not as stupid as before, and thus are freer in their choices what to do with their lives. However, there's no written law or judicial verdict that compels this government agency to do this, and they suddenly stop providing these services in order to meet budget cuts. You might think that there's a moral obligation on part of society (or the government) to take care of these kids, or that there's a "natural right" to education or shelter for kids, but according to legal positivism, that's seperate from what the law tells us.

Or suppose that the same country has a constitution, of which section 12 reads "government ministers are forbidden from installing camera's in the homes of citizens for their own amusement". This is an example of positive law (not according to Austin's definition, but whatever), but it's also an example of negative liberty because it's a constitutional garantue against government intervention.

The notion that "All Englishmen are born free, and the king can't do [insert random abuse of power]" is a notion of negative freedom, and it becomes positive law when it's incorporated into a legally relevant document such as the Magna Carta or whatever.

i believe that states that use a Napoleonic legal code will be less enamoured of natural rights, and thus more prone to adopt legal positivisim, and that as a consequence a society that is both;
a) governed by a system that identifies "rights to do something",
b) influenced by a system that views law as a social construction,
will likely result in a society that emphasises positive liberty.

thus, i can explain to my satisfaction a link between the two disparities of law and liberty, and explain why english society rejects ID cards as an infringement of their negative liberty, whereas continentals will embrace them as an enhancement of their positive liberty.

Introducing a compulsory ID card system is an act of interference, forcing citizens to do something - and thus a reduction of negative liberty, if you will. However, the reasons in favour of introduction are based on expediency and administrative efficiency, and has nothing to do with "enhancing" people's liberties in any sense of the word.

[Furunculus]

interesting and thoughtful response Krazliec, thank you.

re. the idea that an englishmans 'natural' rights really are effected by their inclusion in 'positivist' statute; while that may be true in a legalistic sense, i believe it is made inalienable by the people enforcing said rights through the concept of lawful rebellion as recognised in article 61 of the magna carta. again, this is statute, and thus positivist, but it attains force through the will of the people to reject the authority of the government. it's a tangle, certainly.

i am a fan of Berlin too, and likewise agree on the distinctions and benefits positive liberty provides, and how it is not always in conflict with negative liberty.

berlin also says this however; "there must be a dividing line between individual liberty and public authority and that it is a matter for debate, within society, as to where that line should be drawn." and i have always had a greater attraction to the negative end of the spectrum, as it would appear do many of my countrymen.

on your last point; i do agree that it does not enhance my liberty in any meaningful way, but there have been various arguments put forth here implying that ID cards do 'enhance' liberty, and whether the argument is technically correct or not it certainly stems from a viewpoint that doesn't place the same value on negative liberty that i do.