The picture Josh made in class, showing how the different types of law encompass one another got me thinking about how the law is enacted today. More specifically, I thought about the phrase "In God we trust" printed on all U.S. money. Some versions of the motto came about after the Civil War in the United States and as a result of an increase in religiosity they wanted to give recognition to God. Initially this phrase was placed on all U.S. coins through an Act of Congress on January 18, 1837.However not until July 30, 1956 when Congress passed a law, was “In God we trust” made a national motto. This later led to it being printed on paper money as well.
This whole situation seemed to be an example of how human law was influenced by divine law. It shows that positive law today is only partial and perhaps it was made whole by referencing other types of law. This then brought me to question what our monetary portrayal says about what Americans believe dictate the law? …and is it just a motto or phrase or does it imply something deeper? I think that by printing this on money the United States is falling in line with natural law theorist by acknowledging a higher power in their system of human law. If this is true it may have set the tone for what laws came thereafter. Thus divine law and morality have become the basis upon which positive law is made. On the other hand, "in God we trust" could very well be just a motto and perhaps over time we have not so much trusted God (divine law) as a part of law, but trusted the morals of majority.
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For the most part, I think we try to make the law as secular as possible. Yet, some of the most controversial issues in society today (abortion, same sex marriage, stem cell research) seem to devolve into religious debate.
ReplyDeleteJudges can side with either party in the adjudication of a case on perfectly sound legal grounds- you rarely see a unanimous Supreme Court case decision- the judges can back up their decisions easily by simply selecting the laws that support their viewpoints. In this sense, I think the moral viewpoints/biases of judges can come into play in the outcome of a case. If you consider the establishment of precedent akin to law, then moral biases would come into play during law's creation as well.
As a positivist, the whole "In God we trust" seems to be more akin to an expression of wishful thinking than an express assertion of a divine presence in our laws. Legislation and judicial decisions, after all, do not appeal to divine law; at least not directly. It could probably be replaced with "Let's hope for the best".
ReplyDeleteAs a realist, though, I have to agree that it's probably a reflection of the religious inclinations of the judges and legislators.
If you ask me, I agree that positive law is based mostly off of our moral values, but I do not believe that we arrived at our legal system by way of divine law. I do find most religious texts and our positive laws to be very similar, but I don't give divine law the credit for that. I feel that both law and religion are based upon a set of universal morals that we as humans, for the most part, all have. What I mean by that is that most of the people in a given group have this feeling that they shouldn't kill, rape, steal, etc. So I don't feel that it's as much divine law influencing positive law, as it is just a set of morals we all share; which is the same set of morals that we draw religion from. So it's almost like divine law and positive law are related, but still very separate; like humans and chimpanzees arrived from a common ancestor but are two completely different species, if that makes any sense.
ReplyDeleteYes positive law takes place in our morals, but you have to take into account this example Benita is bringing up. In god we trust is a strong statement to print on every dollar bill within the U.S. It references a higher law. This country was brought up on this basis and foundation. How could it be avoided? The world has a perception of the U.S. to be in the firm belief of the divine, and we definietly are not hiding it.
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