Legal Theory and Laws

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Legal Theory and Laws

Post by laurav on Sun Sep 03, 2017 4:56 am

Here is a summation, not for a debate but to condense what has been unnecessarily convoluted.

Argument: the inalienable, self-evident rights outlined in the constitution pre-date the constitution and are "facts" because they are supported by natural law (notably a term that was never defined on here).

implied argument: the constitutional rights are supported by natural law, which is universal, and therefore these constitutional rights transcend a specific body of law/ or moment in time and exist as immutable moral principles.

My job as a sworn attorney is to support the constitution of NY, FL, US. I am not going to venture outside the already existing constitution to justify its existence because I don't have to. Outside attorney land, I think the foundation of rights and law can be important to consider, and my own view is not natural law, which is by definition absolutist. But there are many theories out there. I am more of a legal positivist. Not sure why that matters at this point.

Links here: http://www.nlnrac.org/american/u.s.-supreme-court

Definition of natural law: http://www.allaboutphilosophy.org/natural-law.htm

Argument 2: positive rights are not inherent and are socially constructed by government. Therefore, positive rights are inferior to inherent rights, which are universal because of natural law.

I do not believe this is an accurate summation of natural law as it pertains to positive rights. Legal positivists do not accept natural law, but natural law does not view itself as being in opposition to positive laws, which fit into the natural law framework. The above is a much more convoluted premise, and one of the reasons attribution of sources is helpful as well as for the similarity to Rand.

Even as a legal positivist, I am troubled by the notion that natural law would be in opposition or incompatible with rights that required action. I think that is a much more complex statement and way beyond the scope of any of us unless we want to draft a research article. I do not see where Natural Law would prohibit a right from existing because it required action from another. I do see in the article I posted on Rand, that it would because Rand sees the individual existing in a state of nature, free to act autonomous, as a universal moral order that pre-dates law. That is basically Rand's revamping of Natural Law.

There is at a minimum an argument the Constitution does have positive rights. http://volokh.com/2013/05/07/positive-rights-the-constitution-and-conservatives-and-moderate-libertarians/

Natural Rights
Also, worth clarifying "natural rights," is distinct concept from natural law, although it is given justification from natural law:
https://medium.com/patrickdaniel/what-is-john-locke-s-theory-of-natural-rights-and-justification-for-a-limited-government-80feecdaaa27

Argument 3: natural rights only require you to refrain from doing something. Government is never required to act to provide something on you behalf, only to refrain from encroaching.

The question of what is or is not a "natural right" is intensely debated among natural law scholars.

Playing around with that argument for sake of argument, if it is a question of healthcare, one could premise that every individual has a right to be reasonably free from disease. Therefore, to avoid encroaching on that, the government would have to act. Now I can make the same more abstract argument as: every individual has a right to life. The right to live could infer all kinds of necessary government action, both to protect and preserve, including the requirement of government to maintain reasonable standards of healthcare.

But I am simply playing around  with different arguments. Here is just one article that attempts to wrestle with the subject in regard to natural rights as well as negative versus positive rights: https://www.researchgate.net/publication/236875684_Is_there_a_Natural_Right_to_Healthcare

Also if we are suggesting natural laws are supported and immutable because of natural law and pre-date the US Constitution: https://www.ncbi.nlm.nih.gov/pubmed/1484463

The takeaway should be that this is all complex and subject to a myriad of different thoughts, opinions, debates, about every aspect of the topics. There is not going to be an easily asserted "fact" that suddenly brings it all into focus. It's just not feasible.

laurav

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