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.
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).
It's not retroactive to void a contract today for violating a statute any more than it is to vacate an unconstitutional regulation. It might be to impose fines for entering into such a contract if it was started before the Bakeshop Act came into law. But that's not the case with the example at issue.
I might also add that the libertarians that like Lochner don't all agree that this is about rebuttable presumptions either. They may well want stricter inquiries, no tiers of presumptions (tiers of scrutiny, much, Steve?!), and just disagree with John about the meaning of the text of the Constitution.
While I can understand some of the necessity of looking at edge cases to prove the boundaries of a philosophy, I am still reminded of the aphorism that 'hard cases make bad law.' Dred Scott was such a manifestly and horridly racist piece of reasoning that I'm a bit amazed at the amount of pixels spilled over it in these debates. The text of the Constitution and the practice of slavery were on a collision course from 1789. Would a Natural Rights based decision that declared slaves persons have been that much worse than actual events? Maybe the judiciary putting their boot to the asses of the political branches would have inspired some additional compromises moving to the eventual elimination of the practice without the need for war. John seems to often be arguing for a 'kick the can down the road' approach to limited judicial decision making. I don't necessarily think he's wrong in claiming both Positivism or Natural Right are essentially personal choice but don't see where he's making a strong case against Natural Rights.
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.
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).
It's not retroactive to void a contract today for violating a statute any more than it is to vacate an unconstitutional regulation. It might be to impose fines for entering into such a contract if it was started before the Bakeshop Act came into law. But that's not the case with the example at issue.
Seems to me that at some point one must draw a bright line between natural law and one’s opinion.
John makes good points. At some point we'll have to throw all of the posts in an AI hopper and ask the AI to sort it out....
I might also add that the libertarians that like Lochner don't all agree that this is about rebuttable presumptions either. They may well want stricter inquiries, no tiers of presumptions (tiers of scrutiny, much, Steve?!), and just disagree with John about the meaning of the text of the Constitution.
While I can understand some of the necessity of looking at edge cases to prove the boundaries of a philosophy, I am still reminded of the aphorism that 'hard cases make bad law.' Dred Scott was such a manifestly and horridly racist piece of reasoning that I'm a bit amazed at the amount of pixels spilled over it in these debates. The text of the Constitution and the practice of slavery were on a collision course from 1789. Would a Natural Rights based decision that declared slaves persons have been that much worse than actual events? Maybe the judiciary putting their boot to the asses of the political branches would have inspired some additional compromises moving to the eventual elimination of the practice without the need for war. John seems to often be arguing for a 'kick the can down the road' approach to limited judicial decision making. I don't necessarily think he's wrong in claiming both Positivism or Natural Right are essentially personal choice but don't see where he's making a strong case against Natural Rights.