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.

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Re: Legal Theory and Laws

Post by DutchessMaria on Wed Sep 27, 2017 9:27 pm

Laura, I don't think positive rights are inferior to inalienable rights. Our right to create positive rights is reflected in the Tenth Amendment which is an inalienable right to create positive rights, negative rights etc.

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Re: Legal Theory and Laws

Post by DutchessMaria on Wed Sep 27, 2017 9:30 pm

As for Universal Human rights, they have their roots predominantly in Natural Law as well.

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Re: Legal Theory and Laws

Post by DutchessMaria on Wed Sep 27, 2017 9:33 pm

The Problem with believing all your rights come from government is that you than surrender what we consider our inalienable rights today, to society. Therefor if society says you cannot act on being gay for example, you basically have no rights thus, your rights cannot be violated because you cannot violate that which does not exist. There for I don't believe in positive right theory.

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Re: Legal Theory and Laws

Post by Admin on Sun Oct 29, 2017 4:16 pm

Why don’t we put this to bed? Where do rights come from in your opinion, Maria?

Laura I appreciate the different explanations but is there a simpler way of debating and clarifying the origin of rights to show your personal conclusion on the topic?

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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 4:58 pm

For me personally, my rights come from me James and not from government and society. However there are different types of rights as I explained before. My right to education and healthcare are a social contract which the Tenth Amendment provides for. They are not the same rights as my right to speak freely for example because education and healthcare involve other people and I am not entitled to their labor or/and involvement automatically.


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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 6:23 pm

I agree with Maria in theory, but I am just not sure if practically speaking it matters. I can explain more later.

Keep in mind that I am skeptical of non-materialism, meaning the idea of things like ‘good’ and ‘evil’ or ‘freedom’ are principles that exist regardless of human awareness of them, and that are discerned as being part of universal human rights and social contract theory.

Maria’s argument is distinct in that it argues these rights come into existence upon the existence of the individual and exist because and within the ontological existence of the person.

Problem for me is that while I can acknowledge that is a valid idea, I am just not sure it matters if the individual is always already part of a government and incorporated into the legal system upon birth.

James has pointed out that I am not the clearest at times or too clinical, so please feel free to ask me to clarify.

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Re: Legal Theory and Laws

Post by Admin on Sun Oct 29, 2017 10:59 pm

So to clarify, do you want it desire for humans to have pre existing rights or do you believe it is better for them to be given by the government .

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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:12 pm

Yes to be clear what I would want in my ideal world looks very different than what I argue may be the reality. I try to be a realist but that should not be interpreted as what I want.

Frankly I have an over arching concern that western democracies may (so I am not saying this is the case) have the seeds of their own collapse sewn into them.

If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship?


Does anyone agree or disagree with the above statement?

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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:14 pm

Under our Constitution, we as a society acknowledge we have pre- existing rights James.

it is all about ideas. It is about convincing people that pre existing rights are better than having what we consider today as inalienable rights, come from government and society.

The US Constitution is indeed a living document and it has historically expanded the rights of individuals and remedied injustices.

The flaw in our current system is not with the Constitution itself but with the lack of understanding of the Constitution and how it is supposed to work and how it can work.


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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:17 pm

"If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship?'

We have a democratic republic meaning, a minority cannot just be overruled by a majority. Not sure what you are saying here?

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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:20 pm

Also, what one identifies as the cause of death when one does an autopsy is not the same as believing the cause of death is good or justified or desirable.

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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:22 pm

We have a system of checks and balances where a straight majority cannot determine automatically an outcome solely based on being a majority. Same for a minority. The process is constantly subjecting everybody to a rigorous system of constant checks as IS designed through the US Constitution.


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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:24 pm

Is there a western constitution that does not grant executive power to make emergency decisions, declare states of emergency, issue executive orders? That does not grant authority under certain circumstances to take unilateral action?

If there were such a constitution, could it be effective under emergencies or when the need for action is immediate and imminent?

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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:27 pm

I personally believe that in case of an emergency, you want executive power! An emergency is immediate. There is no immediacy if you get rid of executive power in emergencies.

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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:30 pm

Secondly, would anyone agree or disagree with the statement that for a country to be Democratic under the notion of inherent equality because of inalienable rights, the will of the government, executive and legislative, must reflect the will of the people? (determined through voting).

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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:31 pm

DutchessMaria wrote:I personally believe that in case of an emergency, you want executive power! An emergency is immediate. There is no immediacy if you get rid of executive power in emergencies.

And that power is necessary because otherwise nothing could get done during an emergency correct?


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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:32 pm

"Also, what one identifies as the cause of death when one does an autopsy is not the same as believing the cause of death is good or justified or desirable"

Not sure what you are trying to say or compare here?

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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:34 pm

"And that power is necessary because otherwise nothing could get some during an emergency correct?"

Executive power during an emergency has a purpose and that is to address the immediacy of the problem. But do not forget, a President is surrounded with a constant team of advisors. Henry Kissinger visited to White House the other week to ' assist' Trump on foreign policy Wink



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Re: Legal Theory and Laws

Post by DutchessMaria on Sun Oct 29, 2017 11:36 pm

What I am saying is, that although there is executive power, Obama and now Trump are probably heavily relying on the experts. It may not look like that but the reality of being President and actually taking action is much different than what we see from the outside.

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Re: Legal Theory and Laws

Post by laurav on Sun Oct 29, 2017 11:39 pm

One more quick thing, the constitution begins with a 'we the people', which assumes a unified collective identity has already formed before the constitution comes into effect.

Another building block I'll circle back to.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 12:41 am

'We the People' all agreeing on our Individual Liberty which is not a collective identity. To the contrary, we acknowledge we are all individuals first and foremost. All unique. Remember the US Constitution has the Declaration of Independence as a foundation which talks about 'all men are created equal'. Mind you Thomas Jefferson did write grievances of slavery ( proof read and ok'd by both John Adams and Benjamin Franklin) in the draft of the Declaration of Independence. This language was was taken out by the Continental Congress.The original draft was reduced by 20%. Jefferson again tried to introduce this same language in front of the Virginia State Senate, who also denied the request to put it into their STate Constitution. The 3/5 clause was created by the State delegates for voting purposes and power.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 12:45 am

'We the People' refers to not the elected and appointed officials, but the people!

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 8:25 am

Well at a certain point any group of people no matter the belief system would be a collective identity of some kind? I mean I think logically we cannot get around that.

I suspect where Laura is going with this—presupposed Group that’s leader gains legitimacy through the consent of the governered but executive power essentially mess there is an inherent mechanism for dictorial rule to emerge as the representative function of the executive moves away and the governered develop increasingly fractured identification with the legislative bodies.

That’s basically where we are today. Congress has abdicated authority to the executive and we have broad execute powe an a polarized people.

Of course none of this is a reflection on the constitution but on the proble of representative government.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 12:19 pm

"Well at a certain point any group of people no matter the belief system would be a collective identity of some kind? I mean I think logically we cannot get around that'

Let me ask you a question instead.

Do you want your right to speak your mind freely come from society and govt?

Or do you want your right to speak your mind freely come from you with the restrained put on govt on what you can say?

Secondly, how does individual liberty and the power to self determination that comes with it , conflict with being part of a society full of citizens who all have different opinions, religions, racial backgrounds, and which has become the melting pot of the world? Shouldn't we strive for as much individual power in a highly diverse society since it takes away from one dominant religion, race, opinion, political party etc?

Thirdly: We are a Government for the People, by the People. Does this not imply we all have responsibility to keep government in check?

And because we are supposed to be a society of Individual liberty, shouldn't we all fight for the very principles that bind us together and give us individual freedom rather than being subjected to mob rule or executive overreach, which both are a result of abandoning the principles of checks and balances?


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