tag:blogger.com,1999:blog-16821859.post112977981608168466..comments2024-03-26T16:03:42.608-06:00Comments on Flares into Darkness: Natural Law in a Democratic Societyambisinistralhttp://www.blogger.com/profile/03836786826294202405noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-16821859.post-1129934215947786512005-10-21T16:36:00.000-06:002005-10-21T16:36:00.000-06:00Flenser,I'm under no illusions that the powerful a...Flenser,<BR/><BR/>I'm under no illusions that the powerful are/have a lot of influence over the courts. But the question remains whether or not it is better to have multiple centers of political/state power or whether to concentrate these more wholly in the more democratic legislatures. This question remains quite aside from what I think of judicial decisions lately.<BR/><BR/>As for one person's morality being another's ruling ethos. No, not quite. Anyone who works in an institution knows that the ruling ethos of the organization and one's personal sense of morality are bound to differ at points, and this is as true for those at the top as the bottom of the institutional hierarchy. This is the contrast of ethics and morality I was referring to above. Now, when a court has to pass judgment on the behaviour of an institution, it is useful, is it not, that the law/the courts have more to work with than a strictly codified ethic - the existing rules of organizational life? A sense of a morality that exists beyond the ethics of today's temporary power structures will serve justice, on the whole. Now, again, whether today's judges have the sense of universal morality (and its relevance to today's world) that we would like is another question altogether. And it is only because you don't think the judges have it right at present that you are quick to say one person's morality is another's ruling ethos. Actually, few individuals ever embody a ruling ethos. Even the powerful often grow weary of the game.<BR/><BR/>I'm sorry I haven't had time to think these questions through more seriously, but in future I hope.truepeershttps://www.blogger.com/profile/16401984575637492845noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129831409251350552005-10-20T12:03:00.000-06:002005-10-20T12:03:00.000-06:00Seneca"..you seem to be sort of forgetting that th...Seneca<BR/><BR/>"..you seem to be sort of forgetting that the common law does not overrule legislation or the Constitution, but is applied when the guidance of the Constitution and legislation is unclear"<BR/><BR/>Regrettably, that is not the case.<BR/><BR/>In Griswald, to use terrye's favorite example, the legislation was quite clear. It was overruled on common law grounds, or as a violation of "due process rights".<BR/><BR/>In legalspeak, "due process" does not mean what it does in normal english. It is another way of saying common law or natural law.<BR/><BR/>Some background on due process <A HREF="http://faculty.ncwc.edu/toconnor/410/410lect04.htm" REL="nofollow">here.</A><BR/><BR/><BR/>"Short of the populace lynching judges who offend them, just what mechanism do you propose for limiting the power of the Courts?"<BR/><BR/>Without exerting myself in the slightest, I can think of several steps, short of lynching, which would have the stated effect. Banishment, imprisonment, and removal from office are three. I suppose a legal execution might be aother. My answers are not entirely serious, but then, neither was the question. I hope.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129830547352366722005-10-20T11:49:00.000-06:002005-10-20T11:49:00.000-06:00truepeersThanks for a thougful comment, as usual."...truepeers<BR/><BR/>Thanks for a thougful comment, as usual.<BR/><BR/>"I don't appreciate the distinction here: what is the difference between human convention and moral standards?"<BR/><BR/>The words you are questioning are not mine, but since I agree with them I'll respond, while suggesting that you follow the link to see what the original author has to say.<BR/><BR/>The key point of the quote is that natural law makes some claims to knowlege of what is "Good" or "Right". Within contempory Western culture, claiming to base ones decisions on ones superior knowlege of right and wrong is highly suspect. At least publically, judges and the courts make an effort to deny that their rulings are based on such knowledge.<BR/><BR/><BR/><BR/>"Isn't one of the bases for the unparalleled democracy and freedoms of the anglophone world the existence of the common law?"<BR/><BR/>I think so, yes. <BR/>The question which you should ask is if it was the process or the results of common law which led to these freedoms. As I detailed in the post, the doctrine of common law is a vehicle by which an elite can exercise control over a majority. That being the case, as the elites change, the results will change. They have changed, in fact, and as a result various new common law rights have been minted which overide older common law rights. If free speech is a good, does it become bad if the latest common law rulings say it is? It's important to be aware of how little respect current common law has for precedent.<BR/><BR/><BR/><BR/>"A society that does not know how to recognize a difference between universal morality, as expressed in convention or tradition or everyday anthropology, and the ethical ideas that are relative to specific periods and places (i.e. to the demands of the powerful), strikes me as a society not worth living in."<BR/><BR/>You won't get an argument from me on that. I think you run off the rails when you seem to assume that "the powerful" are not the people on the courts and the people placing judges on the courts.<BR/><BR/>You and I agree that certain important moral precepts ought to be codified in the law. Actually, Seneca agrees with that proposition also. He just wants some slightly different precepts in there.<BR/> <BR/>The key question in this entire discussion is, who decides? Who has knowledge? Is the knowledge of right and wrong, good and bad, resident in all people? If so, the law would be best if it reflects the views of most of the people.<BR/> <BR/>Or is knowledge of good and bad, right and wrong, something which only a few can discern, after years of reflection and study? If this is the case, then we ought to try to find these wise men and appoint them to a type of ruling body. That brings up lots or related questions, such as how we distinguish these people from the mass, if we lack the ability to make good/bad determinations. Or are they self-selecting? <BR/><BR/><BR/><BR/>"When common law developed as a protection of convention against the whims of the ruling class, wasn't it a protection of morality against the ruling ethos of the day? "<BR/><BR/>Well, ones persons morality is another persons "ruling ethos", is it not? When the US Supreme Court passed Roe, was that protection of morality, or was it an expression of the ethos of the ruling class of the time and place? I'm inclined to say the latter, and I think most people would agree. So to repeat a point I have already made, I think you are making a false distinction between the "courts" and the "law" on one side, and the "powerful" on the other. More often than not, they are the same. The question should be, how do they use that power? Is it to preserve and improve the ideas which have advanced our culture in the past?flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129820424046162562005-10-20T09:00:00.000-06:002005-10-20T09:00:00.000-06:00Me: Flenser, I'd like to see you exhibit an exampl...Me: <I>Flenser, I'd like to see you exhibit an example of judicial reasoning that "natural law" overrules Constitutional law before we go very far with this. As I recall, the "gay marriage" arguments, for example, have depended upon, not natural law, but the Equal Protection clause.</I><BR/><BR/>Flenser: <I>The Supreme Court has not ruled on gay marriage yet, so we cannot know for certain if it will make a right to gay marriage, and if so where it will locate such a right in the constitution.<BR/><BR/>The due process clause of the 14th Amdt, which is read as bringing common law rights to all, is where the courts finds many rights. If they ever do make gay marriage a right I'd expect to see the words "substantive due process" in there somewhere.</I><BR/><BR/>Okay, so it should be easy then to exhibit an example. Notice I didn't say "Supreme Court", by the way, but "judicial reasoning".<BR/><BR/>Flenser: <I>[Terrye:]"No, but they do have a function and one of them is to make sure that the state does not overstep its bounds."<BR/><BR/>The courts are the state.</I><BR/><BR/>Yes, the Courts are part of the State. As are the legislature and the Executive. The common law, to the extent that it is enforceable (and you seem to be sort of forgetting that the common law does <I>not</I> overrule legislation or the Constitution, but is applied when the guidance of the Constitution and legislation is unclear) is enforced by the state. Bounds on the Courts would be enforced by the State.<BR/><BR/>Short of the populace lynching judges who offend them, just what mechanism do you propose for limiting the power of the Courts?Charlie Martinhttps://www.blogger.com/profile/14586506407851173416noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129798302899737582005-10-20T02:51:00.000-06:002005-10-20T02:51:00.000-06:00Common law assumes that law is properly the proven...<I>Common law assumes that law is properly the provenance of lawyers and judges, and that changes to the common law by legislative bodies are suspect or illegitimate.</I><BR/><BR/>-is it so straightforward? My understanding of English common law is that it has always been seen, in the ideal if not always reality, as the basis for the people's defense of their rights against the abuses of administrative, i.e. kingly, authority. It is because common law predates the emergence of democratic legislatures that the opposition you set up here between the undemocratic natural law and the democratic legislated law seems a bit forced, however these things play out in legal thought in the US at present, something on which I am not well informed.<BR/><BR/><I>According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards.</I><BR/><BR/>-I don't appreciate the distinction here: what is the difference between human convention and moral standards? <BR/><BR/>Perhaps my confusion reflects the fact that I would agree that there cannot always be a clear distinction (though one must sometimes be made) between law and morality, just as there cannot be a black and white contrast between law and the ethics of the day. <BR/><BR/>Where the distinction lies in my mind is between morality and ethics. Morality (e.g. proscription of murder) is something more or less universal, across time, while ethics are relative to time and place. There should be some distinction between law and morality and also some assimilation of the two, since the law must draw on both universal morality and shifting ethics.<BR/><BR/>I agree that the judges in our countries need to be reigned in somewhat. But isn't your argument at risk of throwing out the baby with the bathwater? Isn't one of the bases for the unparalleled democracy and freedoms of the anglophone world the existence of the common law? A society that does not know how to recognize a difference between universal morality, as expressed in convention or tradition or everyday anthropology, and the ethical ideas that are relative to specific periods and places (i.e. to the demands of the powerful), strikes me as a society not worth living in. When common law developed as a protection of convention against the whims of the ruling class, wasn't it a protection of morality against the ruling ethos of the day? And isn't law always going to be a negotiation between the two?truepeershttps://www.blogger.com/profile/16401984575637492845noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129794954360211622005-10-20T01:55:00.000-06:002005-10-20T01:55:00.000-06:00It was an excellent article, flenser. Thanks for d...It was an excellent article, flenser. Thanks for doing it.<BR/><BR/>But this:<BR/><BR/>"But somebody has to, because you cannot run a country of 300 million people where they all are yelling "I want what I want and I want it now!" without some system of rules."<BR/><BR/>True. Because all those yelling 'No, you can't have it!' can't just go ahead and get their way either.<BR/><BR/>Throughout our history the majority has been right and the majority has been wrong.<BR/><BR/>Seems we correct ourselves eventually. Our system is set up to take care of that. No matter that there's no hard rule about natural law vs legislative law written anywhere official.<BR/><BR/>And do you think these corrections might have something to do with the majority electing Presidents and Senates who, when they get the chance, change the makeup of the court?<BR/><BR/>Forget which 'side'. This is open to either judicial philosophy.<BR/><BR/>This back and forth, philosophy switching, process happens slowly. <BR/><BR/>Openings don't occur very often and maybe it's the luck of the draw on whose watch they happen. So let's throw in a little chaos theory as to makeup of the courts.<BR/><BR/>Switches in judicial philosophy and their affects on the SC and its rulings won't be as jarring since the switchover from one to another happens over a period of time.<BR/><BR/>And since the SC judges are appointed for life, the the court isn't constantly changing under our feet. (And is the main reason I oppose a term limit on them.)<BR/><BR/>I guess what I'm saying is the reason why I fully support conservative judges being appointed at this time is it's their turn. The Democrats have held electoral power for an extended period of time. Too long.<BR/><BR/>It has nothing, really, to do with my judicial philosophy. And I don't think it has to.<BR/><BR/>Make sense?<BR/><BR/>Even though I don't support conservatives on many of their 'core' issues.Sylhttps://www.blogger.com/profile/03069871911665125873noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129790858468022282005-10-20T00:47:00.000-06:002005-10-20T00:47:00.000-06:00terryeHey, are you still here?"BTW, when the south...terrye<BR/><BR/>Hey, are you still here?<BR/><BR/>"BTW, when the southern states passed legislation making slavery legal..what kind of law was that?"<BR/><BR/>It was "all of the above", actually. Based on centuries of tradition, slavery was considered a part of common law. It was even upheld by the Supreme Court. And the Federal and state governments passed statute law.<BR/><BR/>But the real question is, how was it ended?<BR/><BR/>It turned out to be the mean old majority who ended slavery and changed the law in the most drastic way of all - at gunpoint. Hopefully we will not have to repeat that process too frequently.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129790030673389752005-10-20T00:33:00.000-06:002005-10-20T00:33:00.000-06:00flenser:Fine I will. Golly I am glad you are here....flenser:<BR/><BR/>Fine I will. Golly I am glad you are here. I don't know how the other 299 million of us would muddle through.<BR/><BR/>BTW, when the southern states passed legislation making slavery legal..what kind of law was that?<BR/><BR/>And how is that law different from the law denying married people birth control?<BR/><BR/>I forgot. I don't belong here.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129789241882909112005-10-20T00:20:00.000-06:002005-10-20T00:20:00.000-06:00SenecaThe Supreme Court has not ruled on gay marri...Seneca<BR/><BR/>The Supreme Court has not ruled on gay marriage yet, so we cannot know for certain if it will make a right to gay marriage, and if so where it will locate such a right in the constitution.<BR/><BR/>The due process clause of the 14th Amdt, which is read as bringing common law rights to all, is where the courts finds many rights. If they ever do make gay marriage a right I'd expect to see the words "substantive due process" in there somewhere.<BR/><BR/>SDP is another way of saying common law or natural law.<BR/><BR/><BR/>terrye<BR/><BR/>"I don't give a damn if it is natural law or common law or legislative law or whatever."<BR/><BR/>I'm sure that you don't care. But somebody has to, because you cannot run a country of 300 million people where they all are yelling "I want what I want and I want it now!" without some system of rules.<BR/><BR/>But since you don't care, fine, just drop out of the debate.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129788635531891422005-10-20T00:10:00.000-06:002005-10-20T00:10:00.000-06:00flenser:They are???How about that. silly me.I had ...flenser:<BR/><BR/>They are???<BR/><BR/>How about that. silly me.<BR/><BR/>I had gotten the impression from some people that they were evil usurpers of power who had no legitimate claim on authority.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129787690877042022005-10-19T23:54:00.000-06:002005-10-19T23:54:00.000-06:00terrye"No, but they do have a function and one of ...terrye<BR/><BR/>"No, but they do have a function and one of them is to make sure that the state does not overstep its bounds."<BR/><BR/>The courts are the state.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129787031669317932005-10-19T23:43:00.000-06:002005-10-19T23:43:00.000-06:00Flenser, I'd like to see you exhibit an example of...Flenser, I'd like to see you exhibit an example of judicial reasoning that "natural law" overrules Constitutional law before we go very far with this. As I recall, the "gay marriage" arguments, for example, have depended upon, not natural law, but the Equal Protection clause.Charlie Martinhttps://www.blogger.com/profile/14586506407851173416noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129783488176992982005-10-19T22:44:00.000-06:002005-10-19T22:44:00.000-06:00flenser:I am sorry that sounded so snarky. It is o...flenser:<BR/><BR/>I am sorry that sounded so snarky. It is obvious you put a great deal of time and thought into your post and I do not mean to be cavalier about it.<BR/><BR/>I think that our system is a combination of different types of laws and the whole purpose to the famous checks and balances is to try and make sure that none of the branches of the Republic can control the entire government.<BR/><BR/>There is almost always a recourse.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129782556031718572005-10-19T22:29:00.000-06:002005-10-19T22:29:00.000-06:00flenser:I just want to be left the hell alone.That...flenser:<BR/><BR/>I just want to be left the hell alone.<BR/><BR/>That is all.<BR/><BR/>If I want to buy a freaking condom I don't want some nanny legislatures taking it upon themselves to interfere in my life.<BR/><BR/> Nor, do I think that the state of Conneticut had any business interfering in the lives of the married people of that state or arresting and convicting someone for {gasp} selling contraceptives.<BR/><BR/>The idea that in the year 2005 we are even discussing this is bizarre to me.<BR/><BR/>I don't give a damn if it is natural law or common law or legislative law or whatever.<BR/><BR/>The idea that a bunch of constipated protestants could get a state law on the books that limits my personal freedom just because they think they can get away with it does not make me feel better.<BR/><BR/>And if it takes the Supreme Court to give me back my liberty then that is fine with me.<BR/><BR/>Does that mean I think courts should legislate? No, but they do have a function and one of them is to make sure that the state does not overstep its bounds.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1129780451100498762005-10-19T21:54:00.000-06:002005-10-19T21:54:00.000-06:00Hmm. This was rather pushing the limits of length ...Hmm. This was rather pushing the limits of length for a post. My apologies to Rick and vnjagvet for pushing their posts so far down the page.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.com