Denial of Nature a product of Post Modernism?

[John Kasaian]

I was introduce tonight to the wisdom of Harvard Law Professor Lawrence Tribe who it was suggested, might have been Al Gore's boy for the Supreme Court if Gore had been elected president.

OK I'm stayin' out of politics---my concern doesn't deal with politicians but Lawrence Tribe. Just consider this: Tribe is a very influential individual and could become even more influential.

Here I am in a mid sized western U.S.town in a coffee shop/bookstore in a round table discussion with eight other people, half of whom have doctorates.

I'm about to fall asleep when my rage monkey kicks in. Tribe's agenda:

"...to remove the notion of the Natural..."

Its a big priority for Tribe.

"What?" I ask

"It's progress" I'm told

""Remove the notion of the Natural" from what?" I ask

"Society" Comes the reply "...law, art, education---society"

"Why?" I ask.

"It is repressive...individual autonomy is the single cardinal virtue. The notion of the Natural, that there is a natural order to things prevents people from being fulfilled"

Later that evening I'm sitting here at the 'puter pondering the whole thing. Tribe-ites take this "Remove the notion of the Natural" thing quite seriously. My rage-monkey is indelicately informed that my photographic endeavor to celebrate Nature is passe. Progress demands that the ...notion of the Natural" be removed.

I chug a diet pepsi.

So Tribe, if that is really what He said, has his agenda and his agenda is to "Remove the notion of the Natural" and He's a Harvard big shot, why haven't I heard from him before?

So my first question is Whos here that knows anything about Lawrence Tribe?

I chug a bottle of carbonated lemon water thinking that that was a dumb question---I should have googled the bloke (but I've already gone this far so theres no turning back now) but this also got me thinking of the recent post about cliche and how so many landscapes were considered cliche by so many people, especially Half Dome, Glacier Point and El Capitan in Yosemite. Big pieces of granite (I pop another diet Pepsi) they are certainly icons of the park--internationally recognized icons--and they don't change much except for that slab that took out the ice cream stand at Happy Isles a while back--but are now cliche, at least in photographs.

For whatever reason, Half Dome, Glacier Point and El Cap represent "..the Notion of the Natural" for a lot of people. Certainly they are natural objects and quite likely all those photographs snapped by LF 'togs and digi equipped tourists alike actually promote the notion of the Natural. Maybe they'll hang in galleries or maybe they'll be hung in dilbert cubicles in office buildings somewhere. They might be pinned to brag boards at an REI or get stashed away in a family album---or even made into a refrigerator magnet. Nobody is likely to look at them and say out loud :

"Yuck! A cliche!"

Not likely, though a "...notion of Nature" they'll be forever more be until they're destroyed.

My rage monkey points to book burnings in pre world war 2 Germany and suggests that maybe instead they'll be burning postcards of Half Dome, refrigerator magnets from Crater Lake and snapshots of Old Faithful geyser (and the guy in the black judges robe with torch in hand is Lawrence Tribe.)

The notion of the Natural. Most people I know find fulfillment in Nature. The notion of the Natural is welcome, as welcome as a jar of seashells on the coffee table (cliche)or a sugarpinecone on the mantle(cliche) or daffodills in a garden (cliche.) Or a photo of Half Dome(!) What these people have in common, according to Tribe, would be that they are against progress.

Now the idea of a cliche, if I understand correctly is that it defies progress too. Its the same ol' stuff. Same ol' granite that says the same ol' thing.

What does it say? To me it says "Here I am, the biggest piece of granite you'll see in these parts ---get close up and I'll take your breath away. Come visit me! Be a fool and get too close to the edge and I'll send you down so hard you'll be pulp when you hit the groundfloor." Not original, but it is attention getting. And its a natural reaction I think.

I'm beginning to see that the overshot cliche photographs of nature can fall perfectly into what Tribe calls "...notions of Nature" that must be "removed" as being anti-progressive.

I have nothing against progress. I see it as neutral until a direction for progress is clearly stated and even then it may ultimately be a big mistake. Thalidomide. Eugenetics. Genocide. Lead water pipes. All examples of notions of Progress at one time or another (hindsight being 20/20 and all that.) OTOH to retort that an opponent or dissenter is anti-progressive because he is against progress is IMHO silly if you can't say what you're progressing towards.

Am I paranoid or is it all the Diet Pepsi? Tribe's agenda sounds like it has its roots in Postmodernist thought. Hmmm. I'll put my rage monkey back in his cage now and listen to your thoughts.

How about it?

[Darin Boville]

O.K., I'm heading off to bed...but here goes:

As far as I see it, a better way to get what Tribe (famous dude, by the way, as far as profs go) is getting at is to reverse it and say that what he is trying to do away with is the idea that something is "unnatural." As in, "it is unnatural for men to have sex with men," or "it is unnatural to create a clone of a human."

When you try to nail down whether statements like this are true or not it all sort of gets wishy-washy--vague as Tribe would have it. Nothing firm to base it on.

Maybe more tomorrow...I'm running out of steam!

--Darin

[JW Dewdney]

I smell a misinterpretation maybe... are you sure you're not just grabbing onto a phrase/idea and giving it it's own monologue perhaps...?

[Walter Calahan]

Stop chugging diet pepsi, it's not natural. Frankly, all soft drinks aren't natural.

And what do homosexuals say about natural? A few of my gay friends are wonderful gardeners, and think what their parents did to make them was "yucky".

Or why does nature produce clones of people all the time with twins? I have a dear friend who is a twin, but his borther's personality is totally diiferent. So even in nature there is diversity in cloning. Not a bad thing.

In my humble opinion just viewing architecture is where I find my answer. Modernism with its glass box is against nature, and post-modernism with the rebirth of organic form in buildings is pro nature.

Don't worry what the PhDs and Tribe are talking about. The average Joe shopping at Wal-Mart can care less. They'd rather drive their air conditioned F-150, fire up their $800 stainless steel gas grill, and drink their mass produced beer from an aluminium can. It that's not against nature, I don't know what is.

Now what was the question? Grin.

[Frank Petronio]

The problem is that we give a law professor from Harvard all this exhalted respect and status. We should be rounding these loose lawyers up and shipping them to Lebanon to be UN observers instead of going to listen to them lecture.

(But not Sanders, he is a national treasure)

Seriously, the real issue is that too many smart kids are going to law school for profit rather than creating businesses, technology, and jobs. Or teaching. Or do-gooding.

[j.e.simmons]

Professor Tribe is, indeed, very well known in legal circles. He represented Al Gore before the Supreme Court in the first hearing following the 2000 election. He is loved by, and widely quoted by, liberals - he is hated by, and widely quoted by, conservatives.

I suspect that he was referring to the Natural in the sense of natural law. The concept of natural law is that people have certain rights just because they were born - some consider them God given rights, others simply natural rights. The concept means that these rights are natural - they do not come from government - see John Locke.

For instance, the First Amendment to the U.S. Constitution is frequently considered to give Americans the right to free speech. It acutally, however, says that Congress shall make no law restricting free speech - a recognition that people have the right of free speech as a natural right and that government can't restrict it.

A big government advocate, such as Professor Tribe, opposes the concept of natural rights and natural law. He is of the school that society would be better if rights and restrictions came solely from government. Thus his wont to do away with the Natural.

I hope this makes sense - I haven't had much coffee, or diet Pepsi, yet this morning.
juan

[Scott Knowles]

I'm not familar with this notion, but I think he's talking about "natural", not nature, and in reference to human being and society. It may be that he refering to the notion that many groups use to say something is natural, meaning normal for human behavior and a society, the norm, and inferring anything else is not natural and therefor safe to make illlegal, such as behavior, lifestyles, actions, beliefs, etc. It's not removing nature, but the word natural in reference to societial norms.

It makes sense in a way to ensure the law is broad enough to cover everyone. For example, it's the argument folks make in the defense of marriage between a man and a woman, "it's natural" human situation. Another is obsenity and pornography, "everyone" knows what's normal and acceptable, that is natural human sexual expression and behavoir, so those engaged in either are not natural, and therefore can be outlawed or controlled (but who are all their customers?). And the case has been made for God, meaning it's natural to believe in God, and therefore the exercise of religion is a normal human activity involved in every aspect of society, including government.

I don't see where it impedes the notion of nature and the society's responsibility to nature. That's a given that society has a responsibility to ensure a natural, either as a Park or Wilderness area, and safe, from harzardous conditions and materials, environment for future generations. It's nothing to get angry about, and maybe a worthwhile discussion. It would have been interesting to talk with him some more.

I'll have to look up some of his writings. Thanks.

[darr]

This is the same kind of thought that leads to eminent domain issues.

[Bruce Watson]

Sounds like yet another lawyer who has lost touch with reality. Why do you care what he says?

[John Kasaian]

Sounds like yet another lawyer who has lost touch with reality. Why do you care what he says?

Why do I care? Nature is the main reason for my futzing about the hills with a 'dorff and I can't help taking offense when a bloke who is taken seriously by the ivy league ilk sets as his agenda that it's a ,,,notion must be removed

It is plain silly, but silly laws are passed all the time and silly concepts embraced as being factual if touted by movie actresses, sports figures, politicians, scientists, and teachers.

The Post modern world IMHO is full of faith in the teachings of these new "prophets" which propels society into a desert barren of common sense, and Tribe is punching the tickets on the trolley.

No matter how one stands on the topic of Gay Marriage, to say that male/female attraction is unnatural by asserting that "...the notion of the Natural must be removed" I think is out of touch with Nature and reality. Remove the Natural or deny the Natural---it creates an imaginary rift between humans and nature which has far greater and more futile consequinces than a rift between humans--people have always been argueing and warring and somehow society has managed to survive (art & culture being a vital element in survival---far more of a unifier than a divider IMHO) When we "remove" the Natural we turn our backs to the most natural of conditions. We remain tethered to the irrefutable laws of nature while teaching/legislating/espousing that they don't exist. Thats plain stupid.

Nature=Planet=Critters walking, swimming, flying & slithering, living and dying=beauty=balance. Tribe dosn't appear to grasp man's role in "...the Natural."

Not too bad on one cup of coffee!

[cyrus]

Since Tribe is a law professor, I think by "natural" he's referring to the debate between Legal Naturalism and Legal Positivism, two general theories of Western jurisprudence. This doesn't have much to do with "nature" as such, nor photography of nature. In fact, Tribe's assertion of removing the "naturalistic" would benefit photographers...

[tim atherton]

The notion of the Natural. Most people I know find fulfillment in Nature. The notion of the Natural is welcome, as welcome as a jar of seashells on the coffee table (cliche)or a sugarpinecone on the mantle(cliche) or daffodills in a garden (cliche.) Or a photo of Half Dome(!) What these people have in common, according to Tribe, would be that they are against progress.


Okay - quick though while I'm still processing this... What about the people of Louisiana or Thailand? Isn't the idea of fulfillment in Nature at times a rather quaint, culturally specific Walden Pond sort of thing? It is just one limited response to certain aspects of nature Post-Enlightenment?

[tim atherton]

Since Tribe is a law professor, I think by "natural" he's referring to the debate between Legal Naturalism and Legal Positivism, two general theories of Western jurisprudence. This doesn't have much to do with "nature" as such, nor photography of nature. In fact, Tribe's assertion of removing the "naturalistic" would benefit photographers...

what about those who want to remove naturism...?

[tim atherton]

This is the same kind of thought that leads to eminent domain issues.

no real problem with that when it's needed

[steve_782]

He wants to do away with "The Natural"? Has he talked with Robert Redford about this yet?

[Donald Brewster]

Cyrus is correct about the gist of Tribe's lecture. Anyway, the bottom line is that photographers really shouldn't worry about it; in regards to their photography at least. Tribe is arguing about what could be called the "grounding norm" for jurisprudence. By the way, the US constitution is a natural law document, so Tribe has a big hill to climb in that regard. Tribe is a very well known law professor. Tribe is well regarded as an able and brilliant man by students, academics, and the Supreme Court -- whether they agree with him or not. Here is a short article that discusses Tribe's position within a fairly narrow topic: http://www.propositionsonline.com/html/why_not.html

[chris jordan]

Hey guys, especially John, what Mr. Tribe is talking about has absolutely NOTHING to do with paving over Yosemite and killing all the critters. Several posters have already said that here, and they're right.

Modern legal theory recognizes that there aren't any natural, automatic, God-given rights; all rights and duties between people are the results of our choices, transactions, negotiations, and power-wielding. For example, Christians say that fetuses have a "right" to life, given to them by God. Others argue that women have a natural "right" to an abortion. Which one is it? Neither one. The answer is purely political; there is nowhere we can look to find out what is the "natural" answer to a question like that, or to any other question of human rights.

Another example: does God give Starbucks a natural "right" to use aggressive cut-throat practices to put a competing local coffee shop out of business? Or does the competing business have a "natural" right to exist because it was there first? Obviously there is no natural law that governs any of that; the answer is decided by society and politics, not by God or concepts of what is "natural."

That's why Tribe says we need to eliminate the word "natural" from discussions of human rights; he simply recognizes that there is no "natural" when it comes to deciding who gets what in our complex modern world.

Tribe also is an environmentalist, a passionate advocate for animal rights, and a solid intelligent practical liberal thinker whose philosopies are in many areas are consistent with Al Gore's, if you happen to be in that camp. So beware of taking one out-of-context phrase that you misunderstood, and using it to write off a guy who otherwise might carry a lot of credibility if you knew what he was talking about.

[robc]

my take on this is:

do you or I have a right to work? It is the question which is wrong. It should be, do you or I have the right to stop someone else from working. Obvious answer is no, so by default you or I have the right to work. However, it gets more complex because the fact you have a right to work does not entitle you to demand that someone else provides you with work since they have an equal right not to do so.

So, taking a very controversial example, does a woman have the right to have an abortion? Well, do you or I have the right to stop her? No, so yes she does, but she does not have the right to demand that someone else performs it. Catch 22 eh? Intervention through law becomes necessary, but that imposes responsibilities on both sides which are often skewed because of political, cultural or religious beliefs. Result equals controversy and neither side is happy. Legal rights can never be natural.

Most people demanding rights don't take into consideration that they are demanding that someone else does something to provide them with that right. That can't be right...

[David Karp]

To date in this country, we have decided that natural law is not our law. Our laws come from our federal and state constitutions and the structures created under those constitutions, plus, when appropriate, the common law of the states.

This concept of natural law is based on laws derived from nature, in other words (Aquinas's) laws should resemble nature in that they are "good" or at least not "bad." The problem is the definition of "natural" or "good" or "bad." These concepts are even more amorphous and subject to personal interpretation than those in our constitution. Natural law arguments can be made both against and in favor of many activities that we have come to accept. So based on the natural "law" of survival of the fittest, any group that has become able to subjugate another group would have the right to do so. Similarly, arguments could be constructed around the natural "law" concept that in nature species procreate to ensure their survival, and that sexual behavior designed to procreate is "natural," while any other sexual behavior is not.

That is not how our constitution has been interpreted (to date anyway). There are those that would argue that regardless of our constitution or laws passed under it they have the right to act to prevent people from engaging in certain legally protected behaviors under the color of "natural law." Our courts have declined to adopt these justifications, preferring to rely on the interpretation of the constitution, statutes, and legal precedents.

Without reading the writings to which your friends referred, my guess (based on my knowledge regarding the man) is that this is the sort of thing Tribe is against. I had not thought much about Tribe for a while. He is actually a pretty interesting guy, who has had great success as both a law professor and as an advocate arguing cases before the U.S. Supreme Court.

[Mike H.]

John, Stay away from caffeine. And attorneys with lofty ideals. Or any attorneys. :)

[Brian Ellis]

"Sounds like yet another lawyer who has lost touch with reality. Why do you care what he says?"

Please don't confuse a Harvard Law School professor with a lawyer. The only common ground between the two is that both graduated from law school and passed a bar examination at some point in their lives. Beyond that there's no similarity. Lawyers practice law. Harvard Law School professors wouldn't know a court room or a client from a turnip. They spend a couple hours a week in the class room where they indoctrinate students in the latest left wing BS and spend the rest of their time gadding about spouting the same left wing BS to an adoring left wing media.

[David Karp]

Regardless of your political beliefs, there are law professors on all sides of the political spectrum that actually practice some law as well, including some from Harvard. As I noted before, Tribe has practiced repeatedly, with success, arguing real cases before a moderate to conservative U.S. supreme court. Most lawyers never even have the chance to go there, other than to watch.

[Brian Ellis]

Oh come on Dave, you weren't supposed to respond rationally to my little rant. : - ) I know some law professors are permitted to take occasional cases. However, having briefly served on the faculty at two law schools (NYU and the University of Florida) and also having practiced law for over 30 years, I believe the ratio of liberal to conservative law professors is on the order of 50 to 1 and there's a big difference between practicing law on a full-time basis for one's livelihood and taking the occasional case to supplement one's income or advance a cause while teaching.

[paulr]

"Sounds like yet another lawyer who has lost touch with reality. Why do you care what he says?"

Please don't confuse a Harvard Law School professor with a lawyer. ... They spend a couple hours a week in the class room where they indoctrinate students in the latest left wing BS and spend the rest of their time gadding about spouting the same left wing BS to an adoring left wing media.

ahh, ok .. so lawyer=good, law professor=bad.
i think i got it.

[paulr]

Since Tribe is a law professor, I think by "natural" he's referring to the debate between Legal Naturalism and Legal Positivism, two general theories of Western jurisprudence. This doesn't have much to do with "nature" as such, nor photography of nature. In fact, Tribe's assertion of removing the "naturalistic" would benefit photographers...

That sounds like what he's talking about to me.

Most of the outrage about Tribe boils down to assuming you know what he means without really asking.

[David Karp]

Oh come on Dave, you weren't supposed to respond rationally to my little rant. : - ) I know some law professors are permitted to take occasional cases. However, having briefly served on the faculty at two law schools (NYU and the University of Florida) and also having practiced law for over 30 years, I believe the ratio of liberal to conservative law professors is on the order of 50 to 1 and there's a big difference between practicing law on a full-time basis for one's livelihood and taking the occasional case to supplement one's income or advance a cause while teaching.

I guess that's the problem with Internet discussions rather than face to face. Without the emoticons, it is hard to tell.

And yes, there are many law professors who have not even taken a bar exam or represented a client in their life. I think that is a real problem, but that goes to our educational system, not the subject of this discussion. And yes, there are many liberal law professors, although the ratio of liberal to conservative and liberal to moderate is probably different today than it was in prior years (more conservatives). When talking about Tribe however, I think we can also consider him an accomplished appellate lawyer and law professor, rather than a professor who dabbles in appellate work.

[Bruce Watson]

Why do I care? Nature is the main reason for my futzing about the hills with a 'dorff and I can't help taking offense...
You care because you are offended. OK. But your being offended is under your control, not his. The only reason he offends you is because you let him. Stop letting him. Stop listening to him. Stop enabling him. Stop spreading his ideas - that is, stop talking about him and posting about him.

His ideas are only important is you let them be. The way you refuse to let them be important is to ignore them.

So ignore the idiot. Go make some real art.

[Ed Richards]

> might have been Al Gore's boy for the Supreme Court if Gore had been elected president

Not likely. I bet someone 25 years ago that Tribe would not be Democrat's next Supreme Court pick, back when there still were Democrats, and it even less likely now.

I think your friend is misrepresenting what Tribe has to say. I would certainly not stay up nights worrying about it, and worrying about arcane legal theory is part of my day job. He would not find bugs and bunnies (of either kind) uncontitutional in the unlikely event he ends up on the Court.

[John Kasaian]

Hey guys, especially John, what Mr. Tribe is talking about has absolutely NOTHING to do with paving over Yosemite and killing all the critters. Several posters have already said that here, and they're right.

Modern legal theory recognizes that there aren't any natural, automatic, God-given rights; all rights and duties between people are the results of our choices, transactions, negotiations, and power-wielding. For example, Christians say that fetuses have a "right" to life, given to them by God. Others argue that women have a natural "right" to an abortion. Which one is it? Neither one. The answer is purely political; there is nowhere we can look to find out what is the "natural" answer to a question like that, or to any other question of human rights.

Another example: does God give Starbucks a natural "right" to use aggressive cut-throat practices to put a competing local coffee shop out of business? Or does the competing business have a "natural" right to exist because it was there first? Obviously there is no natural law that governs any of that; the answer is decided by society and politics, not by God or concepts of what is "natural."

That's why Tribe says we need to eliminate the word "natural" from discussions of human rights; he simply recognizes that there is no "natural" when it comes to deciding who gets what in our complex modern world.

Tribe also is an environmentalist, a passionate advocate for animal rights, and a solid intelligent practical liberal thinker whose philosopies are in many areas are consistent with Al Gore's, if you happen to be in that camp. So beware of taking one out-of-context phrase that you misunderstood, and using it to write off a guy who otherwise might carry a lot of credibility if you knew what he was talking about.

I was briefly discussing this point with my lawyer a few hours ago. It was pointed out to me that the framers held fast to the concept of natural law. Whether you agree with it or not it is part of the framework of US Government and the basis for how democracy became the poster child of the enlightenment. If it needs to be changed, there certainly are ways to do that but the judicial branch is not the place---it is not interpreting the Constitution but rewriting it's meaning. Not only is this IMHO unconstitutional, but it is erroneous to the point of absurdity since the concept of Natural law espoused my Madison, Jefferson, and Adams and the rest of the boys had its basis in Thomism and the Greeks, and not as later scholars assert, the Nietche revisionist diatribe version that came along 100 years later.

If it is wrong to view Natural Law in the Thomistic sense, then why is it right to view Natural Law in the Nietchean? Nietche wasn't even around! It is a compound of errors and not something that fosters trust in the judicial branch and certainly dosen't speak well for Tribe, unless he wants to be painted as a huckster.

As far as "Natural" determining who gets what in our modern world, consider that
very few of us live in Our Modern World. Nature has a greater say in who gets what in most of the developing world---if we suddenly had to do without fuel or electricity Nature would have a lot to say about who gets what in the modern, developed world too.

As far as killing critters and paving the wilderness, I think taking the "Natural" out of the language could lead to just that, as it sets a precedent at odds with current thinking. We pass laws to preserve species and protect envirements not because it is up to the government to decide which species deserves to be around for our progeny--we do it out of a sense of stewardship, preserving what has been given to us (by God, Nature, Thor, Zeus etc...) for future generations. A rattlesnake is IMHO not the most pleasant critter yet it is deserving of preservation from extinction as a species, isn't it? A tiny fish that lives in a mud hole in Death Valley might not even be missed by whatever it is that feeds on it, but it is still a living thing deserving of protection and we may be the only ones capable of providing that protection. Tribe's agenda, if carried to its logical conclusion permits individuals (hence governments) to base which species lives and which becomes extinct on ....on what? Economic grounds? Cuddle factor? No direction or reason other than "...because autonomy is the only cardinal virtue." I beg to assert thats not progress if such is in fact the case.

[John Kasaian]

Okay - quick though while I'm still processing this... What about the people of Louisiana or Thailand? Isn't the idea of fulfillment in Nature at times a rather quaint, culturally specific Walden Pond sort of thing? It is just one limited response to certain aspects of nature Post-Enlightenment?

I don't think the tragedies in Thailand or Louisiana are proof the Natural Law is a rather quaint and culturally specific Walden Pond thing.
I'm certainly not a scholar, but one point that stand out in the Summa IIRC is that a greater force of nature will overpower a lesser force. Wind and water can errode rock. for example. The sea is a power that is quite able to overpower a lesser force with catastrophic results. Tribe's agenda to eliminate "the Natural" obscures the potential for being overcome by the greater force of "the Natural" be it a tsumani, hurricane, or bird flu or meteor. Nature asTribe leads me to believe, infringes on our autonomy so lets take it out of the language. An ostriche is pretty autonomous when it's got it's head stuck in a hole.

[John Kasaian]

You care because you are offended. OK. But your being offended is under your control, not his. The only reason he offends you is because you let him. Stop letting him. Stop listening to him. Stop enabling him. Stop spreading his ideas - that is, stop talking about him and posting about him.

His ideas are only important is you let them be. The way you refuse to let them be important is to ignore them.

So ignore the idiot. Go make some real art.

Bruce,

His ideas are important not because they have any effect on me, but because they color the way we look at our own world and thats scary. An agenda to remove "the Natural" from our language---legal or otherwise is very scary. If I weren't home putting insulation and replacing the subflooring I'd be up in the Hoover Wilderness with my 'dorff. I'd love to blow this all off and go make pictures but Tribe is for real. Not addressing my concerns about Tribe's agenda would be like a sailor not addressing concerns about ice bergs on the Titanic.

Cheers!

[cyrus]

I was briefly discussing this point with my lawyer a few hours ago. It was pointed out to me that the framers held fast to the concept of natural law. .

That's true -- We hold these truths to be self-evident, that all men are created equal etc etc is an assertion of Natural law. But others would (and have) say that laws prohibiting racial intermarriage etc are also derived from natural law -- so what "natural law" is, is itself a political/social interpretation. In any case, there's still no real relationship to photographing nature in this discussion. Tribe isn't advocating the destruction of nature and clear-cutting Yosemite etc.

[John Kasaian]

Cyrus,

I don't think natural law was originally a political football. The Greeks I think saw it as a compendium of sorts, based on observation. Aquinas brought it back to life (so to speak) after much of ancient knowlege was caste in a suspicious light after the rise of Christianity. I don't see the Summa as being political but rather philosophical. With the Enlightenment came politics on a grand scale, but Natural Law, at least within the framework of the Constitution was hardly political outside of the assertion of the 'right' to self government. I don't know if that was a feature of the Summa (I've only gotten as far as Question 15) I do know the concept of "Freedom" doesn't correspond with the modern definitions with Aquinas' freedom being freedom 'from' rather than freedom 'to' which appears to jive with the many of the Greek ideas---but like I said, I'm not a scholar. In other masonic led revolutions like those in Bolivia, Mexico, France and Chile, I'm not sure what the role of natural law was and to what extent it was or wasn't a political football in the new governments so I'll defer the issue to any historians among us. As far as having to do with photography I think it is relevant in that art and culture are reflections of how society sees itself, just as the core values of a society are the reflections of where a society intends to 'progress' to.

[Darin Boville]

O.K., here's a question that I hope some of you find interesting.

We are talking about Tribe, natural law, etc. There's enough info here to bring anyone up to speed. I think all would agree that the ideas being discussed are key concepts in our legal system and in our society.

The question: Suppose that society changed in one way or the other, for or (more) against Tribe. How would that affect your photography? And if an important change in our society doesn't affect your work, why not?

I would go first but I'm packing for a two-week trip (and I have no idea what to say...)

-Darin

[Brian Ellis]

"If it needs to be changed, there certainly are ways to do that but the judicial branch is not the place---it is not interpreting the Constitution but rewriting it's meaning."

Part of the problem is that the Constitution often has no obvious meaning. What does "due process of law" mean, for example? Certainly nothing obvious on its face. I'm all in favor of judges not inventing new laws or placing strained interpretations on existing laws to satisfy their own political or social biases. But when it comes to the Constitution the Supreme Court has to engage in interpretation, the document itself seldom has a plain "meaning" when applied to the facts of specific cases.

[Brian Ellis]

"If it needs to be changed, there certainly are ways to do that but the judicial branch is not the place---it is not interpreting the Constitution but rewriting it's meaning."

Part of the problem is that the Constitution often has no obvious meaning. What does "due process of law" mean, for example? Certainly nothing obvious on its face. I'm all in favor of judges not inventing new laws or placing strained interpretations on existing laws to satisfy their own personal political or social biases. But when it comes to the Constitution the Supreme Court has to engage in interpretation, the document itself leaves them with little choice.

[Ed Richards]

Think of Tribe as Xtol and Scalia as Pyro...

[paulr]

... But when it comes to the Constitution the Supreme Court has to engage in interpretation, the document itself leaves them with little choice.

Interesting point. The founding fathers were wise enough to recognize that society would change, and so the constitution would need to be amended--but they didn't seem to be anachronistically hip to modern ideas about the ephemeral nature of language or of meaning itself. Phrases like "due process of law" and "all men are created equal" almost certainly had concrete meanings, at least at the time they were uttered, to anyone sharing the social context of the person who said them. This is probably why they felt no need to elaborate ... they assumed that this concrete meaning would remain concrete.

What's remarkable is how a document built from such ephemeral linguistic and philosophical bricks has remained so powerful and so useful for over two centuries. Maybe this maleability has something to do with it ... the way a flexible reed bends in the wind while a rigid tree snaps.

[John Kasaian]

INterpretation has to be based on what the framers knew and intended at the time. Natural Law wasn't Nietszche-esque but Thomistic. Two very different approaches. Nietzsche was critical, but being critical of what is already critical isn't the same as being critical of the original concept. Whatever faults due Aquinas or the Enlightment aren't dealt with in contemporary criticism of Natural Law, which I don't think is truly Natural Law at all but a "straw man" to confuse what is accurately described as Natural Law----Nature's Law. Tribe's main thrust, as I see it is to obscure even the vaguest notions of natural law, a course which he clearly states and accuses any arguement as being against progress. Natural Law however, in its broadest sense ie. "Nature's Law" no matter to whom it is attributed to---God, Physical Science, or garden nymphs is I feel, the paint on the canvas of the landscape which I attempt ever so lamely to put on film.

Societies change over the course of time and the basis of government changes with it, but government in a democracy exists to serve, not to force society to conform to a theoretical world view---such was the course of all the great dictatorships and totalitarian regimes. Such is the lesson Tribe seems to have failed to comprehend.

Cheers!

Rage-monkey! Back in your cage!

[paulr]

INterpretation has to be based on what the framers knew and intended at the time.

That's actually only one school of constitutional interpretation. If we stuck to it, we'd have to deal with some inconveniences. Historians seem to agree that in the phrase "all men are created equal," "men" truly meant men, not women--in fact it probably included only white christian men. The New Historicist approach to interpretation would have spelled trouble for more liberal ideas like suffrage and abolition.

[John Kasaian]

However the Constitution was ammended accordingly.
Perhaps a better comparison might be made of tortureing prisoners, which is contrary to Natural Law and has historically been condemned by the US. While I wouldn't deny that torture never happened, it was never condoned by Natural Law and many ex GIs will tell you that torturing prisoners was never tolerated by modern military doctrine---until now..

Now it seems to have become a policy issue.

How did this happen? I submit that the brass who now make Doctrine for the military are the products of a generation educated in scoffing at the very notion of Natural Law---much like Tribe is suggesting. While the reasons are presumably different, they are joined in that both are departures from recognizing Natural Law as an ethos. To remove "the Natural" from the world view leaves us with only the "Unnatural" which IMHO is as harmful to culture and the arts as it is government---maybe more so since a culture can survive without a government, but a government without a culture is an exercise in nonsense.

[paulr]

But how do you define Natural Law? Isn't this something that has always been defined through cultural filters?

Chimpanzees torture and kill members of other chimp tribes ... do they violate Natural Law too?

[cyrus]

Chimpanzees torture and kill members of other chimp tribes ... do they violate Natural Law too?

At the risk of continuing a non-photography related topic, Natural Law should be distinguished from the Law of Nature. The theory of Natural law merely states that laws are/should be derived from higher sources of authority and moral principles - this can be "God" or "Justice" or "Fairness" etc -- and has nothing to do with nature in the sense of birds and trees and chimps etc. Thus, for the proponents of Natural Law theory, "All Men are Created Equal" is one of these higher principles that any man-made law has to observe & recognize.

There are all sorts of problems with this view -- namely, the US Constitution is supposed to be the "highest law" of this land. But if we apply rules of interpretation to it - "original intent" or "fairness" or "justice" etc -- then those principles become the highest laws, and not the Constitution. Get your brain around that!

Now, what any of this has to do with photography is beyond me.

[John Kasaian]

paulr:
That would be a question to ask Chimpanzees, if they are able to discern the rules of the pack.

cyrus:
Each photographer I think, brings something interior to the party that eventually becomes a photograph. How we view the world can significantly change a photo of say a teenager. How we see teenagers in general likely has some carry-over. It may well be prejudice or some other "thing" that makes iteself evident even if it is a temporary feeling. If you harbor the notion that every teenager is a shiftless idiot, that quite possibly will come across in your photos. If you see in each teenager the potential for greatness then that to would likely be reflected in your photograph. This probably dosen't apply to professional photographers who can make make a Hostess Cupcake look like a wedding cake, or a pimply teen look like a rock Diva.
paulr suggested that we all look see the world through the filter of culture(probably not the exact qoute---my kids' are bugging me to play "Battleship" which I offer as a humble explanation for not looking for the exact qoutation, but you probably get the idea) and in the US I think culture is very much a product of trickle-down legalities that nudge society in the directions they feel is safe or at least convenient (which might explain fast food and logically, so much type 2 diabetes)

Cheers!

[paulr]

At the risk of continuing a non-photography related topic, Natural Law should be distinguished from the Law of Nature. The theory of Natural law merely states that laws are/should be derived from higher sources of authority and moral principles - this can be "God" or "Justice" or "Fairness" etc -- and has nothing to do with nature in the sense of birds and trees and chimps etc. Thus, for the proponents of Natural Law theory, "All Men are Created Equal" is one of these higher principles that any man-made law has to observe & recognize.

However you define natural law (unless you choose to base it on something verifiable, like the laws of physics, which seem madeningly unhelpful as building blocks for social or moral principles) you are doomed to a morass of interpretation. On so many levels. All of these higher sources of authority ... god, justice, fairness, etc. ... are human constructs, and have been understood in a million different ways by dfferent cultures in diferent times.


Even if you stick with the simple historicist model, and say you'll interpret natural law as it was interpreted by those who drafted the constitution, you're in a position of merely presuming to know their interpretation. And you will be causing greater and greater tensions as you do this, since invariably interpretations of god, justice, and fairness will evolve as the culture evolves.

This might be Tribe's point--any notion of "natural law" is going to be problematic. You're taking a label that implies unwavering objectivity, and applying it to ideas that are mostly synthetic, culturally based, and ephemeral. Any such argument will be at best cofusing, and at worst completely specious.

Until psychology, sociology, and philosophy can give us something more solid to hang our mighty principles from, we might do ourselves a favor by admitting that we don't have and don't actually need such a thing.

[Michael Daily]

Post-modernism is finished... It probably ended about 1980, or so. For a comment on the significance of "art" trends named by art historians (who neither sow nor reap), read Tom Wolfe, _The Painted Word_. We are, at least, in the post post-modern era, or even 'post' that.
Michael

[cyrus]

Post-modernism is finished...

In art, maybe. In politics & everthing else, no way.

[David Karp]

An interesting point that relates to all of this is that although U.S. founding fathers, or at least some of them, may have looked to natural law, we no longer do, and have not for a long time. So, to justify something under natural law gets us nowhere legally. Once our original attempt at a government failed, and we created and adopted a Constitution. From very early on in our constitutional history, we decided that we follow the Constitution. That is the highest law of the land. Although we might do things under the Constitution that people feel are consistent with natural law, they must be constitutional. So, when we enact environmental laws, or laws against discrimination in employment, or in supplying lodging or meals, those laws are based on the Constitution, quite often the commerce clause, and not on natural law. If an idea is good, and there is no constitutional basis for a statute based on it, then there is no basis for the federal government to legislate.

[Michael Daily]

As photographers, we should have no issue with Tribe's sentiments, in that a photograph is never a natural thing. It is a 2-dimensional representation of a phenomenon of the physical world and is the display of the effect of "light" on sensitive materials. It is a visual representation of an idea, not a copy of a thing. As Popeye put it: "It am, what it am." Any semblence of the photograph to the "natural" world is a problem for the viewer, not the photographer. It has its own existance, separate from the existance of the photographer or the "thing" photographed. Now, it need have no physical reality at all--digital "lives" in an arrangement of electrons with no physicality.
Michael

[cyrus]

As photographers, we should have no issue with Tribe's sentiments, in that a photograph is never a natural thing.


In other words, it is subjective and its meaning is open to interpretation - hence, post-modern.

[paulr]

Post-modernism is finished... It probably ended about 1980

i don't know. it seemed like it was firing on all cylinders at least into the mid 90s. And while it might be dwindling now, it doesn't seem to want to die. it has too much going for it ... it's easy to teach, it makes it easy to find a schtick, and easy to be prolific.

and if you disagree, i'll just say i was being ironic. thus proving my point ;)

[paulr]

In other words, it is subjective and its meaning is open to interpretation - hence, post-modern.

well, modernism never claimed to be objective or closed to interpretation. there are many schools of criticism that acknowledge subjectivity without lapsing into anything-goes style relativism.

much of postmodern criticism tends towards pure relativism--which is a big step beyond mere subjectivity.

[John Kasaian]

Denying the reality of nature, be it the mountains or 3,000 years of philosophical observation on the nature of things is like being on a bus with a chimpanzee behind the wheel.

OK a chimpanzee whos also a Harvard law prof.

Not good for government but maybe it will stimulate art, giving it a kick in the arse as it were to finally take itself honestly. When all else deserts culture it is the artists and poets who preserve and build on whats left...until Tribe dictates otherwise and legislates such non progressives out of fashion(which sounds like that may be all will be left!)

[Paul Coppin]

The distinction of natural vs unnatural is a clear indication that the proponent has no clue, and only a trivial sense of reality (especially lawyers and law professors, politicians, sociologists, anthropologists, theologians...) There is no such thing as unnatural. EVERYTHING we do, think, say, observe, is entirely natural. It may be uncommon, unappreciated, unabsorbed, unfettered, but it never can be unnatural.
Tribe is nothing but another in the long list of pseudo-intellectuals that seeks to put boundaries on things that defy boundaries, maybe to give some meaning to their own lack of self-esteem. :D

[chris jordan]

Paul, that is exactly what Professor Tribe is saying-- you actually agree with him, maybe without realizing it. You have not refuted his argument, you have restated it.

[Paul Coppin]

Well -:o LOL! that'll teach me for not wading through all those pages of gobbledy-gook, now I'm going to have to go back and read it all. Did I mention that that guy Tribe seemed to have his head screwed on right? :) sheesh....

[Michael Daily]

Consider the organic/inorganic foodstuffs congolmeration... Organic sugar vs "inorganic?" sugar, organic salt!, etc. These lables are for advertising, not informing, just like the art history lables for periods. Pictorialism, romanticism, realism, naturalism, modernism, dada-ism, and the rest are still with us. The lables are there for the coctail circuit and gallery owners and collectors, NOT the artists.
Michael

[John Kasaian]

I beg to differ. While I can agree on the labels pasted on to genres as being there for identification/advertising etc... there is a difference between what comes from nature and what are constructs that are inorganic to nature.

It is natural to find bears in the wild, it is unnatural to find bears in a zoo.

It is natural for a dead horse to stay in one place, it is unnatural for a dead horse to go for a gallop.

It is natural for an infant to soil his diaper, it is unnatural for an infant to change his own diaper.

It is natural for geese to fly, it is unnatural for pigs to fly.

It is natural to desire to learn from nature, it is unnnatural to think there can be nothing to be learned from nature.

It is natural to have a greater trust in your own honest observations, it is unnatural to place your trust in a theorist who denies the very existence of the Natural.

My 2-cents anyway.

[Scott Davis]

Think of Tribe as Xtol and Scalia as Pyro...

Actually, I think a more apt metaphor would be Tribe as Chromogenic B/W and Scalia as Mercury-developed Daguerrotype.

[paulr]

[QUOTE=John Kasaian]... there is a difference between what comes from nature and what are constructs that are inorganic to nature./QUOTE]

which has nothing to do with the natural law argument being made by tribe.

did anyone read the whole thread?

[chris jordan]

John, what Tribe is talking about has only to do with human behavior; that's the only place where he is advocating the removal of "natural" from the vocabulary. He's not attacking nature meaning the bears and tigers and Yosemite-- in fact he is an environmentalist and a passionate advocate for animal rights. He only wants the word "natural" scrutinized in the context of people who justify their selfish politicially-motivated behaviors on grounds that those behaviors are "natural." Like people who say that 5-day-old unborn fetuses have a "natural" right to live, or whatever. He recognizes, as Paul Stimac put very well above, that everything we do is "natural," and so you can't say that any human behavior is more "natural" than any other human behavior. So all of our rights, duties, and responsibilities to each other are decided in the political arena, not by what is natural or God-given. That's all. So don't worry, there aren't going to be flying pigs and Yosemite isn't going to be paved over.

[John Kasaian]

Let me get this straight: Bears and Tigers live in "The Natural" arena, their behavior subject to the laws of Nature. Humans live in a political arena which seeks to legislate "The Natural" out of the political arena hence human behavior would be subject only to the laws of man (politicians) :confused:

Very ambitious.

If it were possible, we'd only need to legislate banning tsunamis and hurricanes from our politically correct behavior arena and tsunamis and hurricanes wouldn't dare occur again, at least in our safe politically correct behavior arena ("The Natural" arena no longer applying to politically-correct behavior-centric humans since we won't even have the words to describe such phenomenon when they become illegal.) :rolleyes:

I think I'd rather deal with tsunamis and hurricanes in "The Natural" than pretend they wouldn't exist through what sounds like a bizarre, but linguistically logical legal assumption.

Come to think of it, if "The Natural" is removed from our language as Tribe desires, that then leaves "The Unnatural" and "The Supernatural" which sounds like a rather spooky place to be. :eek:

Then again, trying to bring this back into the realm of photography, taking photographs of "The Unnatural" and "The Supernatural" landscape sounds pretty cool. its too bad Kodak stopped making that great infra-red film in sheets.

[paulr]

Let me get this straight: Bears and Tigers live in "The Natural" arena, their behavior subject to the laws of Nature. Humans live in a political arena which seeks to legislate "The Natural" out of the political arena hence human behavior would be subject only to the laws of man (politicians

You don't got this straight.

It's not that human behavior would be subject only to the laws of man, but that human laws would be based only on the standards of man (however subjective, arbitrary, society-based, natural, or unnatural someone might consider them) ... not on some interpretation-of-the-month of natural law.

It's got nothing to do with legislating, replacing, outlawing, or denying nature. It's more about stopping people for using their very subjective interpretations of "natural law" to justify just about anything.

Chris and a few others have spelled it out a lot more clearly and patiently than I have. Why not go back and read their posts? The poor straw man has been beaten nearly to death.

[julian]

some examples...
at one time it was 'the natural order' that if you were born a noble it was god's will and you stayed a noble, if you were born a peasant it was the natural order that you stayed that way, try to change any of that and it was against the natural order of things...
if you were black and your family were slaves, you too obeyed the natural order and stayed a slave... until this particular natural order was overturned and it became the natural order to have freedom as a right...
at one time the natural order of things was that the landscape was a dangerous place and beauty was depicting man's domination of the landscape, at another time the natural order said that beauty in the landscape was the wilderness...
in the country where I live it is the natural order that only the male child can be ruler...
also in Spain until recently it was the natural order that all 'good' people are roman catholics...
until recently it was also the natural order that children born into a family whose parents were oponents of the dictatorship could have their children taken away at birth and given to conformist parents to save the souls of the children... etc etc

[paulr]

great examples, Julian.

[cyrus]

OK, one more time: Natural Law has nothing to do with nature, birds, trees, chimps, bears, tigers, Yosemite ... or photography.

Natural Law theory simply says that laws should be based on higher (vague) moral concepts like Justice, Fairness, God (if you're religious) etc. and if its not, then its not a law.

Postivism says law is whatever the law-maker says it is, whether it is Fair or not is a different matter.

I don't want to claim to speak for Tribe but I believe that Tribe's point is that the "higher moral principles" which are invoked to justify laws under Natural Law theory is often (usually, always) really just "the laws of man" whcih can be just as arbitrary and repressvie.

Thats all.

Has nothing do with legislating nature out of anything.

[Michael Daily]

In the political arena, the 'Golden Rule' prevails:
"The guy with the gold makes the rules."
Michael

[John Kasaian]

You don't got this straight.

It's not that human behavior would be subject only to the laws of man, but that human laws would be based only on the standards of man (however subjective, arbitrary, society-based, natural, or unnatural someone might consider them) ... not on some interpretation-of-the-month of natural law.

It's got nothing to do with legislating, replacing, outlawing, or denying nature. It's more about stopping people for using their very subjective interpretations of "natural law" to justify just about anything.

Chris and a few others have spelled it out a lot more clearly and patiently than I have. Why not go back and read their posts? The poor straw man has been beaten nearly to death.

paul r.

The interpretation- of -the- month Natural Law of which you write isn't the same interpretation considered by the framers of the constitution. Natural Law isn't a code of laws in the U.S. anyway to my knowlege but niether is the Common Law which the framers were well aware of. The woeful philosophy on which most people here seem to base objections to Natural Law is heavily influenced by Nietzche, who was on the scene long after the Constitution was written and seems to have been popular among Civil War veterans who became movers and shakers in postwar U.S. Government. Many were sons of Episcopalian Clergy who experienced the carnage of the U.S. Civil War and IMHO sought to deconstruct the idealized views of their fathers. I think Nietzsche is very much a deconstructionist when pitted against Aquinas who, If I may crudely recall the Summa:

All things are made by God, so all things are good. Evil isn't an embodiment but a defect in something good.

All of nature therefore, is good. Pol Pot and Amin are good, the evil they've committed is due to a defect.

Natural Law as Aquinas stated and as the framers intended, upholds the humanity of man as well as the inherent goodness in all creation. Huimanity is not divorced from the Natural (as Dr' Tribe would like to see.) Men need laws to survive because men cannot act as animals act. Those aborigines who could live in harmony with nature have had their cultures debauched or have been killed off by the men 'who cannot act as animals.'

I'll offer my little little grasp of Confucianism to support my position that Natural Law isn't just a Western concept---although it might optimistically be said to have contributed to making West a place in which more people prefer to live if given the opportunity.

My grasp of Confucious is that people aren't equal any more than musical instruments in an orchestra are equal, since music is written for a variety of instruments with unequal tonal character and volume, yet each contributes a critical element neccesary to the performance. That was his explanation of how China was able to be a peacable land for (what was it?) over two thousand years.

So it is with nature and humanity where the least of creatures is often a critical link to the survival of the whole. You can't treat a violin like a pair of cymbols and expect to get any sweet sounds out of it, either. Laws protect humanity and if they don't, then they control humanity which is harmful to both nature and art and artists----and controlling humanity is the route most lawmakers and special interest groups seek to build up their power base.

[paulr]

John, I'm not sure you're getting at by throwing around the names of everyone from Confucious to Nietzsche.

My point (and the point of others here who have attempted to grasp what Tribe was actually saying) is that the founding fathers WERE leaning on an interpretation-of-the-month of natural law. Or at least an interpretation-of-the-period. You're exactly right that it wasn't their intent to do this. It's no one's intent to do this. People do it with the belief that they're hanging their laws on eternal principles, when in fact they're relying on extremely culturally biassed ones. The trouble is not that the ideas are culturally biassed; it's that the charade of "natural law" alows people to hide this bias.

These ideas of natural law, as Julian pointed out, have been used throught history to justify such things as the caste system, slavery, religious crusades, and nazism.

As far as Nietzsche, he may have been a pre-precursor to deconstruction (by way of Heidegger) but there's nothing about deconstruction that's central to any of his work.

It's logical positivism that you want to be looking at, which has its roots in the skepticism of David Hume (who died, as it so happens, in 1776) and in John Locke before him.

I think you're right that natural law isn't just a western concept. But I don't see the relevence to the discussion. You're stomping the poor straw man into the ground at this point!

[John Kasaian]

some examples...
at one time it was 'the natural order' that if you were born a noble it was god's will and you stayed a noble, if you were born a peasant it was the natural order that you stayed that way, try to change any of that and it was against the natural order of things...
if you were black and your family were slaves, you too obeyed the natural order and stayed a slave... until this particular natural order was overturned and it became the natural order to have freedom as a right...
at one time the natural order of things was that the landscape was a dangerous place and beauty was depicting man's domination of the landscape, at another time the natural order said that beauty in the landscape was the wilderness...
in the country where I live it is the natural order that only the male child can be ruler...
also in Spain until recently it was the natural order that all 'good' people are roman catholics...
until recently it was also the natural order that children born into a family whose parents were oponents of the dictatorship could have their children taken away at birth and given to conformist parents to save the souls of the children... etc etc

julian,

What you first refer to is platonic. Remember The Myth of The Cave? At that time occupations and social stations were inherited. Plato and Aristotle influenced the development of Natural Law and were referred to by Aquinas but not in the way you've been mis-led to suppose. After Christianity became predominant things pre-Christian became suspect and often suppressed. I'll suggest an allegory: What if when Postmodernist Art became dominant and all the art that came before it, if not POMO was suppressed? What if an art professor named Aquinas saw the value in the work of Hogarth and Lorrain and understood that civization was in dire need of artists who could paint a tree that actually looked like a tree, and therefore wrote a dissertation on art drawing on the knowlege and philosophy of realist painters as a foundation for explaining art history? If such an interpretation leads readers to consider alternative styles of art, is that a bad thing? If it is held to a variety of interpretations because the readers are free to do so, is that any reason for such a book to be burned (or 'eliminated 'as Dr. Tribe might put it?) As I wrote above, the Nietzschean spin was the product of post civil war scholarship on Natural Law. Dont confuse it with the much older and more positive Aquinian view that truly held all to be created 'good' by their Creator.

[cyrus]

"humanity of man as well as the inherent goodness in all creation" is itself yet another one of those vague formulations. Positivist don't say that laws shouldn be inhumane - they say that whether a law is humane or not has no relationship to whether its still a law.

[paulr]

John, you've now beaten the straw man completely lifeless, and are tearing out his limbs one after the other.

The irony here is that the most postmodern element of this whole discussion is your free-associative reading of Tribe's argument--and of the history of philosophy, for that matter!

[John Kasaian]

OK, one more time: Natural Law has nothing to do with nature, birds, trees, chimps, bears, tigers, Yosemite ... or photography.

Natural Law theory simply says that laws should be based on higher (vague) moral concepts like Justice, Fairness, God (if you're religious) etc. and if its not, then its not a law.

Postivism says law is whatever the law-maker says it is, whether it is Fair or not is a different matter.

I don't want to claim to speak for Tribe but I believe that Tribe's point is that the "higher moral principles" which are invoked to justify laws under Natural Law theory is often (usually, always) really just "the laws of man" whcih can be just as arbitrary and repressvie.

Thats all.

Has nothing do with legislating nature out of anything.

Cyrus,

I agree with you that Natural Law is a theory, like Science and like Positivism too. Dr. Tribe asserts that Positivism is progressive and Natural Law is counter progressive, which is are theories as well. The problem I see with theories is that philosophically one if free to accept or reject any theory as truth. A pragmatist would say we can only accept a theory as being true if in practice it creates some good. I doubt if creating "some good" is adequate. Hitler created for pretty good (for the day) highways but his view of 'progress' was a horrible tragedy. Positivism as you defined it would not permit interpretation by anyone other than the Courts(which the Supreme one seems to have gotten itsself into the legislative business of late) wouldn't it?

"...law is whatever the lawmaker says it is, whether it is fair or not is a different matter."

If that were the case, what acceptable defenses would exist? None could. We would be at the peril of a police state, enforcing laws no matter how poorly written or ill advised. No arguement, either one is guilty or not. Such a scenario is far different than the libertine spin Dr. Tribe supposes to be progress, but that in itself is not my main objection to the elimination of the Natural.

Natural Law, as subjective as it is as least operates on the noble principal that all things are good. Even with a Nietzschean spin on it, one is confronted by this theory that goodness is common to all creation. That IMHO is about as positive as it gets, leading me to queston wheter or not 'Positivism" is indeed positive or merely another deconstructive spin. Citizens under Dr. Tribe's brand of Positivism couldn't be expected to interpret a laws intent based on Natural Law---a theory most commonly taken as "common sense"---or any other theory of law for that matter if the fashionable vogue is to eliminate such historical considerations from the law.

That no citizen could be expected to keep up with reading every law ever written in this country(which they'd have to do in order to know what not to do at the risk of breaking the law) justly shows what an ill-concieved iidea Dr. Tribe seeks to promote.

Also this debate does have a something to do with photography. On another thread, a debate is being made on the unfairness of tripod useage. Suppose if, under Dr. Tribe's scenario a law were passed to prohibit the use of tripod photography on Federal property. The common man would understand such a law to be written for the purpose of protecting strategic assets(though the common man would also scratch his head wondering why camera cell phones wouldn't also be prohibited for the same purpose) and go right on photographing with the family Rolleiflex on a tripod in places like Yosemite, Yellowstone and The Grand Canyon. And get punished for it. It wouldn't matter, as you said "...if the law is fair or not." Nor if the offender offered a justifiable reason to the Ranger.

"The Law is the Law and thats The Law" replies Ranger Tribe.

The idea of anything considered "Natural" in any age, form or function no matter how contestible being "eliminated" I find far more vexing than the elimination of anything thats man-made, especially ill-concieved governmental constructs.
Perhaps such is merely part of being an "unprogressive" to which charge I must plead guilty.

[cyrus]

Cyrus,

"...law is whatever the lawmaker says it is, whether it is fair or not is a different matter."

If that were the case, what acceptable defenses would exist? None could. We would be at the peril of a police state, enforcing laws no matter how poorly written or ill advised..

Well that's precisely the counter-argument - Hitler's laws were laws too. Should they be considered legal? SHould laws be judged by ethical standards? Doesn't that mean that ethical standards are placed above the law? Whose ethical standards? SHould laws change based on changing ethical standards? If ethnical standards involve religion, shouldn't religion and law-making be kept separate? SHould you be free to ignore laws that - according to your ethical standards or religion -- are bad? etc etc. Martin Luther King thought so. But there are lots of people who refuse to pay taxes on the grounds that taxes support wars. etc. For example, suppose a law results in saving 10000 people at the cost of the deaths of 100 people. How is that to be judged? From a purely utilitarian viewpoint (greatest good for the greatest people - Jeremy Bentham) or from a moral view (100 people should not be sacrificed) etc. I won't resolve the issue here of course.

So, that's a small part of the argument which has been raging for a long time now - As for your tripod issue, our constitution talks about "Due Process" and "Free Speech" and lots of other vague Naturalist principles - but finally it is up to the courts/lawmakers to define what all that means in practice. So in your tripod example would ultimately be u[ to the proper lawmaker to decide what is the law on that issue. Whether the law is fair or not is a matter of opinion. YOu're perfectly free to try to change the law on tripods if you feel they are unfair, but you can't ignore it and pretend that its not a law just because you consider it to be unfair (or so the Positivists would say.)

By the way, just as Naturalism doesn't have much to do with "Nature", Positivism doesn't have a lot to do with "Positive" The word is derived more from "To Posit" - to state something as being true. Positivists say that the Law is what the Law-maker (society, elected legislature etc) say it is and need not be justified based on abstract notions of "Higher law" etc. The law is self-justifying (because of hte process that it was passed, by the authority of hte people who passed it ) and doesn't need to be justified by appeals to "Higher Principles" Then, there's the whole debate between HLA Hart and Austin about primary and secondary laws etc which I won't go into!

[paulr]

That no citizen could be expected to keep up with reading every law ever written in this country(which they'd have to do in order to know what not to do at the risk of breaking the law) justly shows what an ill-concieved iidea Dr. Tribe seeks to promote.

These are some excellent counter arguments, although I still think you're overstating/misstating the Tribe position.

If I read your criticism correctly, you're making the assumption that the elimination of natural law as a foundation for law will lead to a code of law that's arbitrary, and ultimately not held to any standards of goodness.

I don't think this is the case. It's possible for us to state broad principles, that we believe to to be vital to adhere to for society and its individuals to thrive, without declaring them Natural Law. We can simply say "these are what we believe to be important." Among such principles could be things like life, liberty, and the pursuit of happiness.

I'll add that in my opinion, the reason for removing natural law from the equation has little to do with whether or not such a thing exists. If you pressed me on it, I'd probably say that there ARE certain principles that are fundamental and unchanging and common across cultures. This sounds a lot like the foundation of Natural Law. But the trouble is twofold: getting people to agree on what those principles are and how to interpret them, and the long history of state-sanctioned evil being committed under them. Given these problems, I think Tribe's position is on the right track.

For over a hundred years Philosophers have demonstrated that ethics and human decency do not need a foundation in Natural Law or the metaphysical. Just as history has shown that almost endless cruelty can be commited under the justification of Nature, God, and other lofty principles.

There's a lot of room for discussion here, but there's no room for anyone to see these ideas as an attack on rocks and trees and clean air!

[julian]

and ultimately not held to any standards of goodness.



Careful Paul, goodness isn't an absolute concept but a construction. It is also a term that is banded about a lot at the moment in the public field to justify quite decisions based more in the material than the moral field i.e. good for 'me' or 'us'.
My take on the original text was that we are being reminded of the concept of ideology but under a different name, very relevent at the moment IMO...

[paulr]

Careful Paul, goodness isn't an absolute concept but a construction....

Oh, absolutely. My point was just that "goodness" ... whatever it is ... is not automatically rejected when you reject "natural law." Whether it's a pure construction or a cultural interpretation of something that exists, it can be pursued through many approaches, including positivistic ones.

[John Kasaian]

Gentlemen,
You bring up a critical point in your lack of ability to determine absolute concepts. That is why Dr. Tribe's position and yours, is so wobbly. It is why we cannot simmply say "...life, liberty and the pursuit of happiness is what we believe to be important" without citing at least philosophically Natural Law---thats where the idea came from. To write Natural Law out is plagiarism. To ban Natural Law from being cited in support of, or against a position is an assault on freedom of speech. While concepts of Natural LAw are up for debate---as I have said here, the Aquinian concept is different from the Nietzchean and Platonic concepts that too is part of the legacy of Western Civilization. And its not all that bad compared to arguements that cannot assert with any confidence or certainty what it is that is good, bad or indifferent. At least we do know what Aquinas intended, and what Nietzche intended, and what Plato intended. We've had hundreds of year to study and expound on those thoughts. Aquinas is Natural Law at it's most positive and Nietzche is an application of Natural Law that is deconstructionist which I think is why it is the view (wrongly) favored by Dr. Tribe and many law schools.

But we're a long way from photography. I originally posted this thought here because I genuinely feel one's view of things is reflected in one's photography. It is inconcievable to me that a racist can take a portrait that shows the human dignity of a subject who is 'different.' The blind eye will not see any more than say an individual who believes himself superior to the greater Nature can capture the grandeur of Nature on film. As has been said this thread has travelled a long way down a different path---an important path but no longer within the original tenuous scope of how a photographer sees the world. If you'd like to continue this debate in the Lounge, I'll see you there!

Cheers!