It's not been clear to me on what basis or principal John Yoo predicates law. Is it simply the Constitution (as understood by judges) or are there underlying guided principles? I'd like to see John respond in writing in this Substack. He is after all, a devotee of McDonald's. And a long time ago when McDonald's once noted that they had sold over 500 million burgers, I was a McDonalds fryman.
It seems to me that the debate is largely a consequence of the Gods vs no-Gods issue with one side solving the good versus evil component of this by claiming that might is right and the other side basing their claims on their understanding of rules seen as set by some external judge.
If so both sides are badly wrong.
The positivists contradict themselves by vesting moral authority in the ideal sovereign imagined (as is traditional among claimants to thrones) as a human representation of the God or Gods whose rules they deny. Ask one how the sovereign knows what's right... and the last mazurka unveiled will turn out to be natural law.
Most of natural law people, on the other hand, go wrong by mis-interpreting their own position.
Their fundamental claim is first that the obvious sense of justice and/or injustice exhibited by babies (as well as dogs, horses, and some other animals) demonstrates the existence of natural law; and, second, that human law should instantiate that sense of justice - and they'd be right if they stopped there, but they normally don't; going, instead, to the next step in asserting that the existence of natural law implies the existence of a law giver and so some form of external judgement on human action.
In reality, natural law can legitimately exist with, and without, recourse to super-human agency - meaning that discussions on the rights of man can be divorced from religious argument without loss of salience and that, of course would doom the legal positivists.
Well, you can certainly suppose, as I like to, that Natural Law is a set of Postulates that define a legal and governmental system best suited to human nature. Other Postulates are conceivable, leading to other systems poorly suited to human nature (i.e. tyrannies of one sort or another). You can claim, of course, that the Postulates are divinely written or inspired, or that they are the product (like Euclid's in geometry) of human ingenuity. Either way, no "super-human agency" required.
But super-human agency is required or there are no postulates. If man creates “the” natural law than some other man can equally create natural law. We must defer to a superior law giver to accept that there is a thing as natural law.
IMO, this argument is unfocused. People can argue these 2 points for eternity and never arrive at a conclusion. The question to me is: What does the Constitution allow? IE, what have the citizens allowed the Ruling Elite to do? For many years it has been evident that the Constitution has no real Checks and Balances. Therefore the RE can do a lot of things that they are not explicitly allowed nor are they disallowed. As to slavery, that is one type of Class we have had in our country. We have many other Classes that show that one group of citizens is disfavored versus another. Progressive Income Tax, Women granted minority status, Affirmative Action, Government Censorship, and so on until every citizen is a part of some class if not multiple classes. Show me a Constitution that forbids the RE from creating classes and I’ll show you a resolution to your debate.
It's not been clear to me on what basis or principal John Yoo predicates law. Is it simply the Constitution (as understood by judges) or are there underlying guided principles? I'd like to see John respond in writing in this Substack. He is after all, a devotee of McDonald's. And a long time ago when McDonald's once noted that they had sold over 500 million burgers, I was a McDonalds fryman.
It seems to me that the debate is largely a consequence of the Gods vs no-Gods issue with one side solving the good versus evil component of this by claiming that might is right and the other side basing their claims on their understanding of rules seen as set by some external judge.
If so both sides are badly wrong.
The positivists contradict themselves by vesting moral authority in the ideal sovereign imagined (as is traditional among claimants to thrones) as a human representation of the God or Gods whose rules they deny. Ask one how the sovereign knows what's right... and the last mazurka unveiled will turn out to be natural law.
Most of natural law people, on the other hand, go wrong by mis-interpreting their own position.
Their fundamental claim is first that the obvious sense of justice and/or injustice exhibited by babies (as well as dogs, horses, and some other animals) demonstrates the existence of natural law; and, second, that human law should instantiate that sense of justice - and they'd be right if they stopped there, but they normally don't; going, instead, to the next step in asserting that the existence of natural law implies the existence of a law giver and so some form of external judgement on human action.
In reality, natural law can legitimately exist with, and without, recourse to super-human agency - meaning that discussions on the rights of man can be divorced from religious argument without loss of salience and that, of course would doom the legal positivists.
Well, you can certainly suppose, as I like to, that Natural Law is a set of Postulates that define a legal and governmental system best suited to human nature. Other Postulates are conceivable, leading to other systems poorly suited to human nature (i.e. tyrannies of one sort or another). You can claim, of course, that the Postulates are divinely written or inspired, or that they are the product (like Euclid's in geometry) of human ingenuity. Either way, no "super-human agency" required.
But super-human agency is required or there are no postulates. If man creates “the” natural law than some other man can equally create natural law. We must defer to a superior law giver to accept that there is a thing as natural law.
Is the photo captioned as Hart actually Isaiah Berlin?
It might be! It's what Google coughed up, but Google sometimes makes mistakes.
IMO, this argument is unfocused. People can argue these 2 points for eternity and never arrive at a conclusion. The question to me is: What does the Constitution allow? IE, what have the citizens allowed the Ruling Elite to do? For many years it has been evident that the Constitution has no real Checks and Balances. Therefore the RE can do a lot of things that they are not explicitly allowed nor are they disallowed. As to slavery, that is one type of Class we have had in our country. We have many other Classes that show that one group of citizens is disfavored versus another. Progressive Income Tax, Women granted minority status, Affirmative Action, Government Censorship, and so on until every citizen is a part of some class if not multiple classes. Show me a Constitution that forbids the RE from creating classes and I’ll show you a resolution to your debate.