"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.
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!
Cyrus,Originally Posted by 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.
"I would feel more optimistic about a bright future for man if he spent less time proving that he can outwit Nature and more time tasting her sweetness and respecting her seniority"---EB White
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!
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!
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...
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.
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!
"I would feel more optimistic about a bright future for man if he spent less time proving that he can outwit Nature and more time tasting her sweetness and respecting her seniority"---EB White
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