Positive law

Morality determines law so in that sense, slave and nazi law are not law. Positivist agree with slave and nazi law being laws in a sense though.

Shapiro continued

Natural lawyers says that the positive law comes from something external instituionally.

Hart- positive law is a set of structured array of rules

Shapiro-positive law can be understood as plans versus rules, is a structured array of plans

Shapiro's approach

"Shapiros approach to law is positive law. The actual made law. Positivism-the view that there is no more to the content of law than that which is made (institutionally real)."

Constrasts Holmes realism
Natural law, says positive law has something that gives rise to it.

Holmes view is realism, gives the institution what it needs by make them in control

Problem with Disgust Law

An issue that I'd like to raise with the theory that law should be based on disgust, a human sensation, is that it oversimplifies a very complex problem and, in doing so, often harms the overarching situation more so than it helps. By allowing a person to justify their actions by claiming that it spurred in them intrinsic emotions that promote aversion you allow that person the legal flexibility to use that position to justify most behaviors. One case where a man shot two lesbians because it disgusted him is no different than the actions that philosopher Dzung Nguyen could wrought. Nguyen believes that heterosexual families (and, in certain ways, heterosexuality) is an abomination of nature, that men and women are separate species and should not live together. Neither of these stances, in my opinion, have any legal footing, though for very different reasons. 

By making the claim that a legal decision can be based on a complex emotion shows out tender habit of searching for a simple solution for a complex problem. However, this conundrum, though tragic, is inescapable. For example, in cases of affirmative action, the justices, lawyers, or parties involved cannot abolish racism or erase it from history, but instead do what they can to analyze the present situation, consider the actions that they can enact, and work to use those actions to promote ideals that reflect some greater sensibility. However, even this statement falls prey to our desire for a transcendental answer, some end all solution that can be trusted unquestionably. 

Similar to the profundity and incredulity of religious faith, legal scholars look for the one inarguable principle that will defeat any argument, and do this to ignore the glaring issue of our own incompetency. Understandably, there is no way that we can examine all of the possible factors, elements, and outcomes of any case. But our habit of saying "disgust is an unquestionable sensation that can be used to justify irrational decision" will leave more people hurt than helped as it ignores factors that we can consider.

In summary:

1) Disgust is little more than a subjective sensation, not an intrinsic indicator of holy or transcendental law

2) To side with disgust ignores the complex mechanics and phenomenology of law, society, and life

3) While we cannot examine cases exhaustively, we can and should examine them to as extensive as can be allowed to be fair and just to all parties that are able to be considered. 

You're wrong! Really, how?

Recently I wondered what it means to be right or wrong, and unfortunately I mean this in a logical sense and not in a sense related to justice, though fortunately I'm sure that my professor will not object to me going on a rant about logic.

Often we say how things are either right or wrong and we mean that in one of two ways, either  A) logically or B) ethically. If something is logically right then it means that the proposition a person makes accurately reflects the real world. For example, if I say "If I jump into that pool with no clothes on, I will get wet." This statement, with any unexpected anomalies of nature notwithstanding, is logically true. If something is ethically right then it means that an action or proposition is moral by some standard and generally promotes ideals that can be agreed upon by the affecting and effected parties. For example, someone might say to me, "You shouldn't jump into that pool naked because it would be wrong." This is not to say that I cannot jump into the pool nude, but rather the exposure of my body to people who do not wish to see it would be rather unpleasant for them to see, doubly so if children were around. Ergo, my statement was logically correct, but my actions would be morally reprehensible.

Now, here's the question: how do things shift from one day being logically or ethically right to being wrong?

The most obvious answer is that of cultural changes. Religion, tradition, and populations effect how people view the everything. In Modern America, slavery is seen as immoral since it denies a person their right to life, liberty, knowledge, and autonomy, whereas Colonial America viewed slaves as less than human and not worthy of equal rights, citizenship, or even person-hood. In a similar manner, conceptions of science, such as the discovery of more senses than Aristotle had originally postulated, have changed and evolved over time.

It is obvious to say that our mechanisms of determining morality and validity have changed throughout the years, but I'm curious to know if they will ever stop changing. We only have so many thousands of years of recorded history, and much of the earlier history is blurry and ambiguous. Furthermore, we haven't the foggiest idea if we are going to become extinct tomorrow due to war, plague, or any of the other wonderful horsemen of the apocalypse. Ergo, what we believe to be right today, ethically or morally, could be viewed as unquestionably wrong in the later years of our life.

However, what of the controversies of today? Right now, we have writers and speakers who say how certain ways of living are right and wrong, yet no agreement on which is which. Is gay marriage moral? Is owning a firearm really a justifiable way of protecting one's life, liberty, and property? Was the world created by some divine entity or was it the product of billions of years of celestial activity and evolution?

If we only have one ultimate mode of thinking, shouldn't there be absolute agreement? But if this were the case, we'd have already reached the pinnacle of thinking and become a perfected species. As such, it makes me curious to know why certain things are right or wrong. Hume sought to show how induction was an inferior means of reasoning to inductive logic, Nietzsche aimed to show how Christian morality and other forms of reasoning were self-refuting by their own means, and countless scientists proving and disproving theories every day. But if Hume disproved inductive logic, why do we still use it? If Christianity is self-refuting, why is it still practiced and celebrated? If Newton's theories were inaccurate, why are they still taught in schools?

The best answer that I have for a lot of these is lack of knowledge. After all, not everyone gets a chance to read Nietzsche, and the few who do rarely understand him. It could also be convenience. There's little risk in trusting inductive reasoning for insignificant things, so to chastise a person for believing that their car is going to still be where they parked it since it hasn't magically vanished on them yet would not be very fruitful. Finally, as a play off of the first, it could be that ignorance is bliss. Some say that if any entity were omniscient that they would be driven to insanity, unable to handle the horror that all of reality holds or the trauma of every terrible event happening vividly before them. As such, it might be useful that we don't know everything and continuously prove ourselves and each other wrong. Hopefully, this type of thinking will lead us to a better tomorrow, whatever the hell that means for us today, tomorrow, or several thousand years from now.

Suicide, Martyrdom, and Virtue

There is a popular subject for analysis whenever one enters a moral argument: the value of life. Many will support that living is a pretty darn good, and that we should strive to support our own lives and the lives of others who can do things to support our lives. To drop a few popular quotes:

"The most important thing is to enjoy your life - to be happy - it's all that matters." - Audrey Hepburn

"...being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions..." - John Locke

"He who has a why to live can hear almost any how" - Friedrich Nietzsche 

However, life is something that has proven throughout our existence to be difficult, if not impossible, to quantify for the purpose of attributing an objective value. The medical definition reads as follows: 

The cessation of life; permanent cessation of all vital bodily functions."

It also lists the following criteria:

"the cessation of 1 - total cerebral function... 2 - spontaneous function of the respiratory system, and 3 - spontaneous function of the circulatory system."

Based on this working definition, doctors are able to "prove" that a person, for all practical purposes, is dead and probably won't be coming in for his or her 9 o clock shift tomorrow. 

Now, with arguments of the soul and the afterlife notwithstanding, I'd like to take a minute to examine suicide, martyrdom, and how virtuous they may be, with the first example being the convoluted stance on it that Christianity takes. 

First and foremost, the Book of Exodus introduces the Ten commandments, and bared proudly on those stone tablets is the order "thou shalt not kill." As such, it is easy to assume that most good Christians would shy away from killing another person for fear of the many, many, many not so nice things that can befall them if they do anything to upset the bearded man in the sky. After all, God wasn't very happy with Cain when he murdered Abel (even though there are never any more stories of God being so explicit and open about his power and existence in the modern day like there were in the Old Testament. In any case, that is a quibble for another blog.) Thus, any type of killing will (supposedly) be punished by God. It is also assured that if a person dies after living a virtuous and devoted life that they will ascend to heaven (or purgatory, or a higher plane, or the clouds, or whatever a certain Christians conceptualization of the afterlife may be. Point is, you're good, you're dead, you're win.) The heavenly plane that a person ascends to is perceived as being physically higher and morally greater than the earth, which is perverted, dirty, and sinful by nature. Thus, a person wants to do everything they can during their mortal life to ascend into the kingdom of heaven and be rid of the horrible world of flowers, bunnies, families, lasagna, friends, and free will. 

So why not just commit suicide as soon as a person prays for forgiveness? Well, that would be murder. Fowlie, Dante Alighieri , and many other religious scholars believed that suicide was the equivalent of self murder, and even more reprehensible since it was an open rejection of God's gift of life. It was also impossible to ask for forgiveness for committing suicide since you were, well, dead. Canto XIII of the Inferno illustrates the Wood of Suicides/Self-Murderers, which shows the punishment of those who died at their own hand. 

But what if you are killed by someone else for your faith? Well, then you won the jackpot. Seriously, Martyrdom, by Christian Mythos, is the best way to go out. Think of some of the most famous theologians and how they went out: Jesus, Martyred; Paul, Martyred, Peter, Martyred. What were the people that Paul was persecuting? Martyrs. What did Pope Gregory I write about in Homilia in Evangelia? Martyrdom and the different degrees a person could martyr themselves. Modern writer Joseph M. Bryant even wrote in Vol 4, No 2 of the June 1993 issue of The British Journal of Sociology that, "Martyrdom for the faith...become a central feature in the Christian experience." Even the idea of being persecuted for ones beliefs is painted in a glorious light throughout the old testament. 

Many secular philosophers have a problem with this Ideology, specifically Friedrich Nietzsche, who believed that Martyrdom was silly, and that if a person wanted to commit suicide that that was their choice to make. Those who argue for euthanasia will often cite the case of "if a person is in a vegetative state and undergoing extreme pain without any hope for rehabilitation, then they should be let go." 

I will now turn the floor to discussion and ask: Is Martyrdom truly virtuous or is it just foolish? Is suicide reprehensible or redeemable? 

References

http://www.brainyquote.com/quotes/topics/topic_life2.html

http://www.egs.edu/library/john-locke/quotes/

http://euthanasia.procon.org/view.answers.php?questionID=000197

http://en.wikipedia.org/wiki/Christian_martyrs

The controversy of Emotion in law

The topic of emotions role in law runs through the core of Nussbaum's book Hiding from Humanity: Disgust, Shame, and the law. However, this topic has also been at the center of many philosophical arguments.

To analyze the situation very simply, the two primary sides in this debate are those who believe emotion must be included in our interpretation and execution of the law and those who believe law should be exercised "objectively" and without any emotional interference.

The secondary argument doesn't sit well with me due to that one troubling word: "objectively". The idea behind this type of jurisprudence is that you can examine factors considered "neutral" and use those in order to evaluate a situation, as well as the proper response to it. By this measure, one would say "John Doe committed murder, ergo John Doe is sentenced to death." However, this ideology fails on many accounts.

First and foremost is the underlying bias and motivation. A person will make unconscious and subconscious assumptions concerning a case before they are aware of all of the facts. People involved in cases are pre-judged based on gender, sex, race, sexuality, religion, occupation, socio-economic status, and a plethora of other features. Once this pre-judgement is made, those judging the case will consciously search for evidence to confirm this presupposition without consciously being aware of the motivating factors behind this pursuit.

Secondly, the "objectivity" of jurisprudence fails due to the subjectivity of law's foundation. As Nussbaum and the introductory quote by Rousseau point out, our social ethics and axiology have their foundation in emotions and psychological states. Nietzsche outlines in The Will To Power how language grew out of our need to survive, and one can further argue that emotions grew out of similar survival needs. We are social animals because of evolution and we have emotions in order to prompt ourselves of our situation and how it affects us. We don't believe that life, love, happiness, knowledge, and autonomy have any intrinsic value, we give them value due to the relevance they have to ourselves. We value love because we know the pain of the absence of it and the happiness that its presence brings.

Finally, the role of the jury further misconstrues the ability to judge objectively due to the unfamiliarity a common person has with the law. Even though a Chief Justice may be fully aware of Mill, Dworkin, and Hart, the shoe salesperson, accountant, and weatherman might not be. Instead, the common person can only base their decision on the grounds of pop morality and personal emotions regarding the case. Thus, our courts fail to live up to the objective standard they wish they could attain.

Case Study 3

Just a heads up for group 9, I've completed my portion of the project for Scott v. Sandford case and posted it on Dropbox. Please review, and add your portions, thanks.

Hart vs Dworkin

In comparison to Dworkin, Hart appears to be more straight forward and takes less time to arrive at his point. His ideas are certainly agreeable and are more true which proved the point that things are not so complex unlike Dworkin makes it seem.

Dworkin

Dworkin's analysis of law is essentially ideal and shows an agile type of intelligence. Throughout the reading, he made interesting points when he finally got there however, it seemed to have taken forever for him to arrive there. His novelty and witty remarks were amazing in the beginning but as the reading continued it began to wear off as he begins to go in dept. I would considered him to he a rambler that has some stand out points here and there.