Law and Justice
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Funny legal things. There is a governmental office in CZE that represent the state in things connected to property (like, if you are suing the state for an old castle, they will be the opposing party). They also handle (as in either destroy, sell or give to someone) property confiscated as items connected with commited crimes. They have a rather awesome fb page and this was published today:
Black people in leaflets* or elsewhere apparently are not liked by a man who was making side money by a rather distasteful hobby. On various events, he was selling items with nazi theme and also cloth badges that he himself was making on a sewing machine. Considering that he was expressing his fascination with nazism also by raising his right hand in a nazi salute in public, he commited a crime of a support and propagation of a movement aimed to suppress human rights and freedoms. The court sentenced him to three years with a suspension.
Apart from the suspended sentence, the man was also told that the state will confiscate his sewing machine, 3313 rounds of ammunition, a Waffen-SS postmark, fabric, patches, german war flags, sleeves with a swastika, wooden sculpture of a swastika, floor tiles with a portrait of Adolf Hitler, ceremonial swords, bottles and trays (all with a swastika), totenkopf rings, a head of Adolf Hitler and 25 portraits of him, 25 pictures of a German soldiers, belts and two chest shields (apparently that thing that German MPs were carrying around their necks). All confiscated items had a nazi symbols on them. Employees of ÚZSVM have ecologically disposed of those items so they can no longer serve unlawful deeds and the sewing machine was gifted to a pedagogical institute, where young girls will learn to sew on it.
* There is this great affair right now as certain people got publicly outraged at Lidl (the mall brand) for advertising a sweatshirt with a picture of a black male model. Apparently, Lidl is yet another link in the great liberal multiculturalist agenda chain...
This is almost poetic
Black people in leaflets* or elsewhere apparently are not liked by a man who was making side money by a rather distasteful hobby. On various events, he was selling items with nazi theme and also cloth badges that he himself was making on a sewing machine. Considering that he was expressing his fascination with nazism also by raising his right hand in a nazi salute in public, he commited a crime of a support and propagation of a movement aimed to suppress human rights and freedoms. The court sentenced him to three years with a suspension.
Apart from the suspended sentence, the man was also told that the state will confiscate his sewing machine, 3313 rounds of ammunition, a Waffen-SS postmark, fabric, patches, german war flags, sleeves with a swastika, wooden sculpture of a swastika, floor tiles with a portrait of Adolf Hitler, ceremonial swords, bottles and trays (all with a swastika), totenkopf rings, a head of Adolf Hitler and 25 portraits of him, 25 pictures of a German soldiers, belts and two chest shields (apparently that thing that German MPs were carrying around their necks). All confiscated items had a nazi symbols on them. Employees of ÚZSVM have ecologically disposed of those items so they can no longer serve unlawful deeds and the sewing machine was gifted to a pedagogical institute, where young girls will learn to sew on it.
* There is this great affair right now as certain people got publicly outraged at Lidl (the mall brand) for advertising a sweatshirt with a picture of a black male model. Apparently, Lidl is yet another link in the great liberal multiculturalist agenda chain...
This is almost poetic
Weaver 说:
Ok, well, here you go:
I will firstly describe what naturalism and positivism is. I also need to say that the quotes are translated from Czech texts so if they don't make sense or cannot be googled, it is because I am not a native speaker, and because texts like these are not exactly easy to succesfuly translate.
Positivism is built on two main theses:
1. The pedigree thesis that says that legal validity is a function of certain social facts and not merits of the law. Ie. a law is a law because it is comes from some sovereign, passes a procedure for a creation of law and so on, no matter what the actual content of the said law is. Basically: just because some law would be morally super-good, it is not a law until we make it a law.
2 The separability thesis that says that law and morality do not need to interact, ie. that validity of law does not need to be tied to its morality (although it often will be that way).
In regards to the separability thesis, the morality does not neccesarily mean moral as in morally good in its substance, it means it needs to adhere to some extra-legal requirements. For example Lon Fuller uses internal morality of law which is a set of rules that concern things that people generally do not ascribe to morality and are more of a procedural substance. Basically, Fuller says that (in a sense of the separability thesis) a law that says: "children will be taken from their mothers and raised elsewhere" is not immoral and can be a law, whereas a law that says: "Susan's child born twenty years ago will be raised elsewhere on Fridays and elsewhere on Thursdays and by Hannah on Fridays as long as that child was born ten years ago" is immoral and therefore is not a law. Gustav Radbruch will (probably) say: "children will be taken from their mothers and raised elsewhere" is completely unjust and is therefore an unlawful law (unrichtiges Recht) which is not a law.
Since naturalism is - like positivism after all - broad and there are many different concepts, I will just define it just with non-positivist approach, ie.
1. Law (or morals, since morals are part of law) exists regardless of social facts - it simply is.
2. Morality and legal validity are connected - ie. immoral law ceases to be law.
This is literally what there is to this distinction. Positivists will scold naturalist like this: "you do not distinguish between what law is (description) and what law ought to be (prescription). We are positivists so we can research and describe (every law) but you do not because your theory by defitiniton cannot work with immoral law. Positivism is a theory of every law, whereas naturalism is a theory of ideal law."
Robert Alexy (who is a non-positivist) describe three concepts of validity: sociological, moral and legal. Sociological validity is more or less what kurczak described: a law is valid if it is enforced. Moral validity means that its content is not immoral. Legal validity means legal validity stricto sensu and also include either sociological validity or moral validity or both. Stricto sensu legal validity means that it adheres to formal rules, but unlike the two other concepts, it cannot stand on its own because it is circular (it is formally valid because it abides procedural norms, procedural norms are formally valid because they abide constitutional norms, constitutional norms are formally valid because they abide metanorms and so on and on). If it includes moral validity for you, you are a naturalist, if it does not, you are a positivist.
Last point here would be that that positivist separability thesis says that the connection is not necessary, not that it must not be here. This leads to a division of inclusive and exclusive positivism. Both groups agree that there can be a legal system in which morality is not connected to legal validity (a law is valid but is immoral) but inclusive positivists think that there can be (and is) legal system in which legal validity is tied to morality (a law is valid because it is moral). Basically, a naturalist will say: legal validity is determined by moral validity. Inclusive positivist will say: legal validity is determined by moral validity, but there can be a system in which this is not true. Exclusive positivist will say: legal validity is not determined by moral validity ever. Exlusive positivist version of the Separability thesis (the Separation thesis) says: morality and law must be divided.
Jules Coleman illustrates it on an example that is present in pretty much every legal system: legal norms that say something along the lines of: "legal norms cannot violate human dignity." This prima facie is a moral requirement and it can illustrate how in regular practice the distinction between positivism and naturalism does not really matter. A naturalist will say for example: but of course, it is apparent, this norm only declares a norm that exists. Inclusive positivist: yes, this incorporates morality into law. Exclusive positivist: this does not incorporate morality into law, it merely uses morality as a kind of an extra-legal requirement but it does not incorporates it. It is the same as when private international law orders a judge to use a legal norm of Costa Rica. Yes, he uses it, but it does not become a part of our law. But in the end, all three will assess the morality of said law, and all three will not apply immoral law. And every one of them will be consistent with their viewpoint.
One of the more radical exlusive positivist is Joseph Raz. In 1979 in the Authority of Law he wrote: "The demand of law for a legitimite authority is not only a demand for legal rules to be reasons [for some behavior]. It also includes a demand that other rules should not be reasons for nonconformist behaviour." This means, yes, that a legal norm implicitly tells me to ignore other non-legal norms that are in contradiction. But we must again think that positivism is a descriptive theory of (every law) which means that it tries to keep morality out of law, not out of reasoning of what we ought to do. Or better - it wants to tell apart what we ought to do based on legal reasons from what we ought to do because of other reasons. They say that if we put morality into legal reasoning, we lose the legal reasoning (Do X if it is morally sound = do what is morally sound). Ad absurdum, the legend of the conquest of Alexandria by Umar ibn Al-Khattāb: "Burn the library. If what is in the books is in accordance with the Quran, we don't need the books; if what is there is in opposition to the Quran, it is wrong and we don't need the books." Similarly, if morality is a requirement for validity of law, we don't need law. Positivists don't like morality in law because it blurs the law and makes it harder to describe law. But positivism does not require anyone to think that legal reasons are a priori stronger than moral reasons. It just draws a clear line between them.
It is wrong to think that even exclusive positivists defend immoral application of law. Exclusive positivists do differentiate between legal reasons and moral reasons but draw no implications for the decision-making. In terms of prescription, positivists end at: yes, do decide in accordance with morals and even contra lege, go ahead, but for gods sake, just don't call it a legal decision. It was illegal.. If an exclusive positivist looks at your average ECHR ruling, he will not say: this is wrong because it stems from morals and therefore you should not have done that. He will say: you ruled this way, but you have reached your decision by moral decisions, not legal.
Now, there exist the so called Normative positivism (there is also a term Prescriptive positivism (and democratic, Benthamish or ethical) but I am not sure if these two differ or not; i will use them as if they mean the same thing) that more or less does say that legal reasoning is more important than moral reasoning. They say that the best law is the one that does not have moral reasoning anywhere in it, nor in its application (!!! common descriptive positivists, both inclusive and exclusive, are not concerned with this !!!). The trouble is that prescriptive positivism is not really a positivism as was outlined above, since positivism is a theory of every law, whereas naturalism is a theory of ideal law, and if normative positivism says what ought to be, it kind of ceases to describe every law. Not to mention this - they construct the need to avoid morals in legal practice on things like morality not having democratic legitimity, creating ambiguities, making it harder to have legitimate expectations and so on ("As long as there is moral reasoning in law, results of judicial trials will be affected by a person of the judge and his own moral reasoning. Let's eliminate this element. Let's replace a justice (iurisprudence) that uses moral reasoning with the one that doesn't." - Waldron, J. Lucky in your judge) . But this is a moral argument because we want democracy is not a legal argument. If we even accept that Normative positivism is positivism (which kinda is, since they hold positivist view on both positivist theses, it is just that they defy the descriptive goal of positivism), Normative positivists are heretics of positivism.
And now I can finally get to adress your post
It will be rather short, though.Weaver 说:
Positivists cannot say that defying legal system is absolutely immoral because they try to look at law separately from morals. And if they have law that does not incorporate morality, and they research law (I don't know how to put, mabye: law is an object of their interest) how can they end up with operating with morality? Where does the morality come from? It is not in law and they are describing law. How can morality appear out of thin air? They would need to reach somewhere out of the legal system but that is not a task of positivism. If a positivist says that prefering morality to law is immoral, he is not talking out of a position of positivism because positivism is descriptive not prescriptive.
Confusing positivism with legalism, textualism or formalism is dangerous and completely false. They are not even in the same category! Positivism is a theory of what law is, formalism, textualism or legalism are methonds of interpretation of law! This goes in hand with a myth I have referenced in the previous post: the Radbruch myth that holds that Nazi justice was so abhorrent because Nazi judges were positivists (and assumption that lawful positivism (Gesetzepositivismzus, ie. legalism) = positivism, which is not ture). This is wrong (because nazi judges were horrible because they were naturalists), but for some reason this is also used to attack contemporary positivism despite the fact that no (bar some individuals and French positivist school tied to the Code Civil that used to be a thing in the 19th century) positivist embrace legalism.
Formalism is about providing guidelines for behaviour in application or interpretation of law that limit judicial discretion. It says what I should do to meet some goals. Textualism is a method of interpretation of written statutes that limits judge's "misinterpretation" of the text so we can avoid the situation in which a judge does something different that what the lawmaker had in mind. It says what I should do to meet some goals. Legalism is strict adherence to law and is some kind of a mix of the above two. It says what I should do to meet some goals. And now - the positivism. Positivism says what law is. That is all. Nothing more. These things are not in any way interconnected.
The caricature of positivism ("we should obey the law no matter what because it is law") therefore does not make any sense. And is - as I have written before - either originating in a lack of knowledge in legal philosophy or it is a mere justification of a willful disregard for moral questions that is hidden behind big words and large philosophical concepts. It is in a way similar to how "as a matter of principle" is used in general conversation. "As a matter of principle" is a cop-out that we usually use when we can not sufficiently explain (or we don't want to) explain our position. I don't go to ballet as a matter of principle. Similarly, a caricature of positivism is brought when we want to avoid answering a moral argument. She was fined 500.000$ for a relatively small crime and it will destroy her business completely, but hey, I am a positivist and law is a law. It doesn't make sense and is really lazy, because you can still legitimately use arguments about legal certainty, but no, we will just wrongly involve positivism.
I will quote Hart, who is - albeit not recent - one of the most influential positivist: "If we stand before perverted demands, in what sense is it better to say: "this is not law at all" instead of: "this is law, but it is too perverted to be employed or abided. [...] Bad people will create morally wrong rules that other people will apply in practice. For the people to clearly think when confronted with expoliting the power, it is primarily important to not forget that an acknowledgement of legal validity does not solve a question of obedience and that no matter the size of the authority of the majesty or the authority of the official system, its requirement must in the end be subjected to a moral review." H. L. A. Hart, The Concept of Law
And, since it is a nice quote, John Gardner: "Legal positivism tells us that should the judges use legal norms, these norms are based on certain sources. But it leaves the disturbing question of if and when should a court use legal norms." J. Gardner, Legal Positivism 5 1/2 Myths.
Weaver 说:
I don't think determining where the line for getting into the essence of the human right (as in, what is permissible and what not) depends on positivism / naturalism distinction. Ultimately, it will be weighed by morals and as I have demonstrated above, morality is part of decision-making of both naturalists and positivists. They just name things differently in most cases.
Weaver 说:
No. A naturalist does not translate into some hardcore Kantian who thinks that even the smallest right should be viewed through the fiat iustitia pereat mundus optics. Naturalists have no qualms with positive law - a naturalist will tell that a speed limit of 50 kmh is a law. Because it has no connection to morality. But he will also tell you that unjust law is still law; as long as the law is not unbearably unjust. Naturalist's escape to metaphysic realm will be the last trenchline he will retreat to, but before that he will employ "positivist" argumentation. There is no difference in approach of positivism / naturalism unless we are in a Sharia country / Nazi Germany / Mordor / Orwellian Oceania.
Lastly, someone write something. I am pretty much the only one posting in this thread and I dont want to have quadruplepost the next time
Dystopian
I know this is off topic but this reminded me of what happened to me today. The culture of respect, in general not in totality, in the United States (again in general not in totality) is much different than in the parts of Europe I've visited. For example here in Galicia we are acquainted with a family where the daughter works but treats her parents like ****, and the son is 18 but acts like he's 12. He had a job carrying the chairs out to the beach and back every day. Sounds like an easy job to me but since hes this spoiled little **** he complained that it was too hard, quit and his parents agreed with him. Then during this same conversation where this information was revealed to us he interrupts constantly to ask his mother to play Jenga with him. I mean the ****?
Then tonight we go out to dinner and my mother goes to ask for the postres and un cafe para mi, the woman stands there with her backed turned and when she mentions "tienes flan de queso?" she gives the most rude "no" I've ever heard from a service worker. The definition of respect is entirely different. I understand perhaps the only difference is there is an incentive to be polite in America due to the culture of tipping but still its mind boggling. Its like they dont think any consequences can come from not showing respect. If I ever had acted like that at my job I would have been fired. This is not an exaggeration, you simply don't act like that. This isn't a rant like oh Europe (if someone tells me Im generalizing I will explode, I understand not everyone is like this and we know great people here.) sucks America is great but from an outsider this type of culture is so alien to me that I can barely accept it.
If you treat respect the way that these people I am talking about do you would get your ass beat in my hometown. Its the type of city where you don't look down streets that you don't go to. You don't make eye contact unless you know them. If you walk by a group of guys on the stoop you really don't make eye contact. My friends we all have mutual respect for each other, we would never insult each other seriously to each others face. Thats not what you do to friends, yet again here I can't tell you how many times I've seen people say the most rude insulting things to peoples faces without expecting any sort of response. There are huge physical consequences for your actions. I'm not saying that living in fear is good but at least you learn what respect means, and you learn that if you don't always have respect for any person regardless of how they look you may end up much worse off for it.
anyway rant over
Then tonight we go out to dinner and my mother goes to ask for the postres and un cafe para mi, the woman stands there with her backed turned and when she mentions "tienes flan de queso?" she gives the most rude "no" I've ever heard from a service worker. The definition of respect is entirely different. I understand perhaps the only difference is there is an incentive to be polite in America due to the culture of tipping but still its mind boggling. Its like they dont think any consequences can come from not showing respect. If I ever had acted like that at my job I would have been fired. This is not an exaggeration, you simply don't act like that. This isn't a rant like oh Europe (if someone tells me Im generalizing I will explode, I understand not everyone is like this and we know great people here.) sucks America is great but from an outsider this type of culture is so alien to me that I can barely accept it.
If you treat respect the way that these people I am talking about do you would get your ass beat in my hometown. Its the type of city where you don't look down streets that you don't go to. You don't make eye contact unless you know them. If you walk by a group of guys on the stoop you really don't make eye contact. My friends we all have mutual respect for each other, we would never insult each other seriously to each others face. Thats not what you do to friends, yet again here I can't tell you how many times I've seen people say the most rude insulting things to peoples faces without expecting any sort of response. There are huge physical consequences for your actions. I'm not saying that living in fear is good but at least you learn what respect means, and you learn that if you don't always have respect for any person regardless of how they look you may end up much worse off for it.
I added that last sentence mostly because my friends uncle (Michael) lives in Italy and when he returned with son (Tomas) the way they acted was hilarious once I got past the rudeness. We brought them upstate to this cabin (the border with Pennsylvania, the middle of nowhere) my friends father has been working on and improving over the years. I myself with my friend had put in the sheet rock and painted the walls etc. ad nauseum. Then he comes up here and talks so much **** about how its a shed an blah blah blah because he doesn't understand how to appreciate anything. So he suggests we should have an underground pool there and my friends dad tells him "well you know we only come up here about ten times a year so that wouldn't really make sense, but if we did it'd be an above ground pool." I will never forget this response, "Above ground? Pffft thats only fit for peasants." Que? Before this me and my friend arrive back at the cabin when Michael had just gotten there so I didn't really understand the situation but I see Michael, Tomas, and my mother sitting and talking. So I sit down you know and ease into the conversation until I realize he is taking every opportunity to pretend like hes so smart and correcting my mother on everything shes saying and then outright insulting her intelligence. I texted my mother, "If he doesn't shut the **** up I'm gonna beat his ass." It was only after I was told my mother and them were making fun of his obvious pretentiousness.
anyway rant over
Yurodegenerates being yurodegenerate, more news at eleven! This outrageous behavior has been rampant since 1789, nay, since that prick sokratis.I remember reading a book by Cela (la familia de pascual duarte) where this kind of stupid macho superego leads some dumb Spaniard into killing some peasant and a guy that was foggeng his sister DDDDD
and when he goes to Madrid he sees how women are sluts and men insult each other without expecting to be shanked and stuff, OH the immorality of these cosmopolitan homosexual madrileños
You should read that book
DDDDDand when he goes to Madrid he sees how women are sluts and men insult each other without expecting to be shanked and stuff, OH the immorality of these cosmopolitan homosexual madrileños
You should read that book
Dystopian
Bromden 说:
lol crod what is the book then don't lead me on like that
@brom its more about not trying to provoke a response, have you happened to hear of these loosely organized groups called gangs? It's quite simple actually.
Dystopian
thats quite an exaggeration you got there buddy, in more than one way
Dystopian
don't you have police?
