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NOLA Chas's avatar

The point that keeps drawing me back to the need for something more than positive law, is arguments made in the Nazi trials by the defendants that they were following the positive law.

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Paul Murphy's avatar

I am not a lawyer but when you write stuff like "These were in fact the problems faced by the courts when they adopted Steve’s approach of balancing natural rights against health and safety justifications" I think you mistake the role of the courts (and Steve's basic argument).

Specifically I believe the courts are intended to adjudicate the law as written and nothing else - but here you have them acting as legislators judging the legislator's justification for law, not whether or not someone complied with it. In this case the law allowed contractual labor agreements; the specific agreement at issue did not violate the law at the time it was entered into; and, there are both natural and constitutional injunctions against the retro-active imposition of legislative or executive action.

So how was this even an issue? - it wasn't until some lawyers asked the judges involved to exceed their authority by acting as legislators instead of judges... (and that issue , is of course, at the heart of the disagreement here).

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