Wednesday, October 21, 2009
Government, the true melting pot
Earlier I commented on the blog post, Jurisprudence and Political Framework KD, in response to the idea that positive law removes the aspect of choice from individuals in their everyday life. I must say that I disagree completely with that idea. Law, in no form or instance, removes choices from individuals, it may develop and create consequences for taking one action over another, but it does not remove choice. All individuals have the ability to make a choice, regardless of what the law says, in fact the decision of whether or not to abide by that law, so at its most basic sense, the creation of laws actually creates more choices for individuals. I concede that certain laws do limit options, such as those options of Jews during the time of the Third Reich, but it by no means removed completely the idea of choice from their everyday lives. Also, I do not believe that the idea of capitalism is by itself a Tradition Natural Law society, or even securely grounded in it. If anything, the laws of capitalism are extremely positivistic and goes directly against natural law in many instances, especially this society with the concepts of welfare and Medicaid. For me, there is not actual political system or societal group that can be associated of defined by the type of jurisprudence that reigns there, because each system draws upon ideas from all areas of jurisprudence and incorporates them as that society and system seems fit. It is this concept, of taking individual parts from each system that debilitates and destroys the theory that each form of political government can be directly associated with a form of jurisprudence.
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ReplyDeleteI definitely agree with the author on this post. Law does not eliminiate choice from any individual by any means. Everyone has the choice to break the law if they so choose to do. People who don not break the law are also making the choice not to.
ReplyDeleteSince this theme of choice seems so popular, I wanted to throw a wrinkle or two into these deliberations. First, when we say that "all individuals have the ability to make a choice" are we identifying some basic feature of human nature, i.e. that humans are by nature free and thus possess the capacity to choose, or are we saying that individuals really exercise the ability to choose between several equally legitimate options? If we refer to historical examples, then we are making the latter claim, which is much like the claims that realists would make. If we make the former claim, then we are making an appeal to human nature which is essentially a natural law claim. (Remember, everything for Aquinas boils down to human beings' rational nature.)
ReplyDeleteWhatever the case, I think Fuller's view of the internal morality of law is relevant here. Take the claim that laws create choices by presenting people with the choice of whether to follow or break the law. Fuller cites retroactive legislation as an example of an internally immoral kind of law. Using the example of retroactive legislation, which makes past acts illegal not only in the present but in the past as well, we can see that if an act only becomes illegal in the future, then one has no choice over whether to behave legally or illegally when one is presently carrying out the act/crime. In the case of retroactive legislation, it would appear that the creation of a law does not create choices.
Law gives people a choice so that they can weigh the risks and benefits of breaking the law. If I'm late and I want to speed, the risk of getting a 100 dollar ticket is vastly outweighed by the benefit of getting to work on time and not losing my 50,000 dollar a year job. However, it might not be outweighed by the risk of me flying into a guardrail and being ejected through my windshield across 8 lanes of traffic. Law just makes that choice more explicit.
ReplyDeleteI agree with Rob's post. People always have a choice whether or not to follow the law. However, this only stands true for laws that are just (not laws that Fuller states are immoral). People obviously do not have a choice to follow a retroactive law because that law is not just; it does not give people the opportunity to obey the law.
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