User Tag List

+ Reply to Thread
Results 1 to 2 of 2

Thread: NSA Spying, Economic Intervention, and Legal Positivism

  1. #1
    Points: 665,270, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 88.0%
    Achievements:
    SocialRecommendation Second ClassYour first GroupOverdrive50000 Experience PointsTagger First ClassVeteran
    Awards:
    Discussion Ender
    Chris's Avatar Senior Member
    Karma
    433314
    Join Date
    Feb 2012
    Posts
    197,552
    Points
    665,270
    Level
    100
    Thanks Given
    31,984
    Thanked 80,903x in 54,720 Posts
    Mentioned
    2011 Post(s)
    Tagged
    2 Thread(s)

    NSA Spying, Economic Intervention, and Legal Positivism

    Here I'm not so interested in spying or economics but the distinction between natural law and positive law, or the flaws of legal positivism.

    I do disagree with part of the definition given for natural law: It does not subordinate society to individual rights, it is instead the natural social order arrived at when a people have liberty of conscience and other natural rights.

    Legal positivists, of which there are a few here on this forum, though they seem befuddled by the term, can correct misconceptions of that if they chose.


    NSA Spying, Economic Intervention, and Legal Positivism

    It’s difficult to see a connection between the National Security Agency’s data mining initiatives and the federal government’s incessant and expanding role in the economy. However, both domestic surveillance conducted by the NSA and federal economic policy originate from the same root. Legal positivism, or positive law, has helped pervert the rule of law in the United States for over a century. The flaws in this system of thought have, more recently, become obvious. Worse, it’s clear that this form of legal thinking is as unjust as it is hypocritical.

    To be clear, legal positivism stands in contrast to the conception of natural law. Natural law operates on the premise that man lives life on this earth based on universal premises which are confined to the natural world and discoverable through the careful application of reason. Natural laws’ focus is to subordinate society to morality through individual rights. This system of thought was a critical byproduct of the Enlightenment period and served as the backbone of English common law and American jurisprudence.

    Legal positivism has proven to be a chaotic and inherently unstable system of thought. Rather than attempting to provide a legal framework to shield the individual from unwarranted coercion by an elected legislature, legal positivism aims to do just the opposite. Positive law “creates” rights through the legislative process. Instead of observing the realities of nature and defering to reason, proponents of positive law state that law is contingent upon the circumstances of the time and must be shaped accordingly as new “groups” arrive on the social scene. Legal positivism rejects principle, rejects reality, and mutates the meaning of the individual from one who is protected by law, to one who is subject to every whim from an elected legislature; up to and including, being guilty until proven innocent.

    ...
    I leave off where these definitions are applied to NSA spying and economics.
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

  2. #2
    Points: 665,270, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 88.0%
    Achievements:
    SocialRecommendation Second ClassYour first GroupOverdrive50000 Experience PointsTagger First ClassVeteran
    Awards:
    Discussion Ender
    Chris's Avatar Senior Member
    Karma
    433314
    Join Date
    Feb 2012
    Posts
    197,552
    Points
    665,270
    Level
    100
    Thanks Given
    31,984
    Thanked 80,903x in 54,720 Posts
    Mentioned
    2011 Post(s)
    Tagged
    2 Thread(s)
    Came across an example of the left's confusion, or rather conflation of rights.

    The right is wrong about rights

    But the conservative theory of rights does not do justice to the pragmatism and flexibility of the Lockean natural rights theory held by America’s Founders. According to that theory, natural rights are either inalienable, such as the rights to life and liberty (you cannot legitimately sell yourself into slavery), or alienable (individuals may alienate part or all of their natural right to self-defense, by forming a community and pooling the coercive power to enforce laws). In addition to these few, broad natural rights, there are potentially an infinite number of subsidiary rights that can be created by laws or constitutions. While natural rights are universal, the subsidiary or instrumental rights needed to promote them necessarily vary, in different times and places. For example, the right to life is universal, but the right to a free press is a subsidiary right that would be pointless in a preliterate tribal society.

    Lockean natural rights theory, then, is quite flexible, particularly when it comes to lesser rights or entitlements that a sovereign people may choose to create to better achieve fundamental natural rights. Conservatives, however, typically fail to make the distinction between timeless natural rights and subsidiary rights that are time-bound and context-bound.

    No, Lockean natural rights are not flexible. What the author has failed to do is distinguish between natural rights and positive rights, or entitlements. He even defines positive rights: "there are potentially an infinite number of subsidiary rights that can be created by laws or constitutions." Positive, or posited, means legislated, created by man, and indeed these can be infinite. But they are not natural rights, not rights inherent in man's nature.

    But the author conflates the two so that he can next equate narual rights in the Bill of Rights and FDR's Second Bill of Rights.

    This is fairly typical of the left, and wrong.
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

+ Reply to Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts