Authority's Power

The power of authority is an extremely overwhelming force that is hard to overcome. It seems that people do not follow authority for multiple reasons but I think it mostly has to do with morals and the amount of respect towards the authority official. If a person does not have respect for someone who has power, they are probably not going to follow them unless there are other forces that will persuade the individual to follow them (money, law, punishment, etc.). Respect comes from somewhere, it just is not there from the get go. It is almost like it is earned in a way, through experience, show (uniforms and shiny badges), levels of legitimacy, and many more. If I see a cop I will not break any law in front of them unless they lose my respect towards them, such as if they break the law themselves. If they kill or beat up an innocent person, I would hope my morals would then tackle their authority and I would do the "right" thing and stand up for the victim. Authority usually comes with a price as well. This means that people usually look up to people with authority and expect greater things out of them. If they see them screw up at something, that is what hurts authority and law the most because if the public does not see them as legitimate, then why should anybody follow them. Punishment also allows the authority to keep respect because if you follow the law, they will leave you alone and if you don't then that is when they will be knocking on your door. The amount of authority definitely correlates directly with how legitimate they are either through morals or experience. People will follow if they are legitimate.

Legal Realism Authority

I think that legal realism and Raz make a valid point. I think people recognize and respect legal officials. People follow these laws because they respect the authority of these people. Police men, judges, the President are just few of the legal officials we follow because we respect their authority. We drive slowly on the highways because are aware of the authority that the Police have, we may not agree with these laws follow them because of the respect of the Police. Judges are the same way they are respected people within the courtroom, they have lots of authority and we respect their decisions and follow what they say. For the President we may not agree but we follow his actions, we may not want to go to war but most of us respect and support our troops. As mentioned before there are athletes that are respected enough that they may say something and people will follow. In commercials Michael Jordan is probably the best example he is probably the most respected basketball player so when he advertises his Air Jordan shoes lots of people go out their and buy them. I don’t think this is the best ways for laws to be. I would still go with laws that are based on morals. I think laws are better when people believe in them. The legal realism approach is good though because I think authority has a lot to do with people following the law.

We need authority!

Authority can be obtained by a person, but also expressed through tangible things. Even though a person is the one which holds the power of authority there are also certain objects or figures that have the power of authority. These can include police cars, uniforms, badges, or a judge’s robe. These tangible objects are what signify people of authority. They are what distinguish them from the rest of the community. For example, when a person speeds down the highway and they notice a police car lurking behind the bushes, they automatically hit their brakes. Sometimes police departments place cars in the median of the highway with a manikin in the passenger’s seat in order to make drivers slow down. The police officer has an extreme amount of power, but the police car also helps represent that power. Or like in the movies, if a police officer needs to borrow a citizen’s car, he just flashes his badge and then he’s got himself a car to chase the bad guy in. Therefore, these tangible objects help with the authority that a person may have. Also, authority in general should definitely be present in society. Without authoritative persons there would be no order whatsoever. I do not think everyone would listen to one another because they would not have to. Disputes could not be handled properly without an authoritative mediator. If there were not people of authority there would be no prisons and no jails and no punishment. Our society needs punishment in order to deter crime. In order to have punishments we need authority. Everything concerning law and keeping order is entwined together and depends upon one another.

Response to Keith's anti-marijuana post

Clearly your experience with marijuana has been limited to after-school PSA's made in the eighties. Alcohol has a worse effect on the human body than marijuana—marijuana, whose negative effects are nowhere near as bad as the effects of tobacco use. Marijuana was made illegal because rich white men wished to hold down a section of the population who happens to enjoy certain features of recreational drugs.

I find your moral argument quite interesting. What about Rastafarians? The constitution protects all religions; even those that chose to use marijuana as a way of worshiping. Granted, there have been cases of devil worshipers being forbid the right to slaughter dogs, but only on the grounds of health codes and building regulations.

Stealing and killing someone's pet hurts the person to whom the pet belongs...smoking marijuana just makes people more tolerable.

Morals are all relative, hence why we need law. If we all had the same uptight morals that smoking marijuana was wrong, then maybe we could outlaw the plant on moral grounds. Marijuana, like all recreational drugs, is something a person does to himself or herself. The internal morality of the individual cannot be limited by an invisible moral majority of uninformed anti-marijuana legislators.

I agree that all marijuana regulation laws in the states should be uniform—in that they should not inhibit my personal freedom (to get high and ride the tiger). The reason prohibition didn’t work was because it was the only amendment that limited the rights of a citizen as opposed to the rest that restrict the power of the government.

Sports and Authority KD

I read in a previous blog about authority and respect. For example the individual wrote about how judges on American idol, well they're opinions are greatly respected.

Nonetheless, this topic made me think of other individuals in power and I thought of sports announcer/critics and how they, for the most part, really have no credibility, yet their opinion is valued so much. For instance, I look at someone like Tony Kornheiser and how he, never playing or coming close to an NFL football down in his life, criticizes football players and other athletes. Now it always frustrates me when I hear him talk because he has no idea what playing a professional sport is really like (neither do I) and therefore he shouldn't be considered an expert. This is why I am partial toward announcers/critics being former players/athletes themselves. At least they know what it is really like to play.

I also found it interesting to see how much respect we give athletes, how they generally lionized in the public's eyes. For example look at someone like Michael Jordan and Haynes/Ballpark Franks . Now what in the hell does a former basketball player know about Haynes underwear? Does he make them? Is he an underwear expert? Likewise, what in the hell does MJ know about ballpark franks? Does he kill the pigs? Does he go to the factory to see how they are made? Does he have some type of special taste ability? The answer to all of these questions is no. The fact of the matter is we have come to worship athletes (and celebrities) to the point that whatever they say is right and we should emulate them.

I think it is time we start forming our own opinions and become more critical thinkers as we live our lives. Someone like Megan Fox is hot, yes, but that doesn't mean she is infallible or I should do whatever she says on a commercial. She is a regular person that is attractive. That is it. Nothing more.

Prohibition Marijuana and Morality KD

In class on Thursday we discussed the effects of prohibition, how morality tied into the original decision to make alcohol illegal, and how the decision was reversed. I would now like to compare the theme of this situation with a current problem facing America, marijuana.

Now marijuana, whether you are partial or not partial toward the drug, is a drug and, while it has a small amount of salubrious effects, is, more or less, not healthy for an individual's over well being. Marijuana, as far as my understanding is concerned, has different punishments from state to state. For example in one state you may receive a misdemeanor and another it may carry a more heavy fine. (I think even in Denver having a small amount is legal?) Nonetheless, with this said, would it be morally correct to make the drug legal? My answer: no.

First, as mentioned earlier, marijuana is generally not good for an individuals health. That is, why legalize something that is not going to help individuals? (And yes, I realize there are many "legal" drugs which are just as bad or worse than marijuana; however, this still doesn't change the fact that marijuana isn't healthy for one.)

Second, I do not think marijuana should be legal as the effects on society are generally unknown. Sure, marijuana may "work" in other countries that have it legalized, but these countries are certainly different from the capitalistic superpower that is America. And again, even though marijuana may bring in tax dollars, is it really worth it to legalize a drug to a whole country when only a small minority (usually college age students) are really calling for it.

While I am against legalizing marijuana, I do think some kind of ubiquity needs to take place in enforcing marijuana laws, that is, there needs to be some kind of general consensus on what the punishments should be for marijuana, not disparate punishments from state to state.

My argument for keeping marijuana legal, besides the points already mentioned, boils down to this: Legalizing marijuana is simply immoral and the risks in such an action certainly outweigh an ancillary gains.

Ownership and a picture KD

In class on Tuesday we discussed what it meant "to own" something. That is, we offered the statement that it is illegal to own picture X, but called into question whether we would own picture X if we had seen it on a computer, downloaded it, and other such scenarios.

Now this is certainly an interesting issue and I think there is no easy answer to all of this. I think, however, that the situation is similar to current piracy acts online. Many individuals download music, movies, etc. online and do not believe that it is crime because they're not actually stealing something physical (i.e. a CD or DVD from a store) and they do not believe they are stealing something permanently (i.e. one can watch a streamed, online version of a movie for free and not have to pay for it). Now in some regards I can understand this, that is, you do not actually feel like you are stealing something when you download. However, I can also understand the opposite viewpoint, namely, individuals, when downloading, are, in a certain regard, stealing, and, therefore, this is wrong.

I think the best solution for these problems--both the picture scenario and stealing music--would more of a positivist interpretation; suffice it to say, there have to be clear, definite, and well-known laws made and promulgated to help explicate what is really going on. For example, regarding downloading music, most individuals know this is wrong. Hence, they turn to programs that are legal where they can listen to music online for free and have to listen and see advertisements. In the case of picture X, I think it would be to have clear, definite laws what constitute owning the picture and what constitutes not owning the picture.

Response to Milgram Experiment

I believe that the Milgram Experiment was an extreme example of suggesting that authority based on social recognition undermines an individuals ability to question or change rules. These individuals were placed in a laboratory setting and were one on one with an authoritative figure. These subjects were most likely intimidated and confused. The were a part of an experiment and were being ordered to follow instructions. Since they were a part of this experiment, I believe that many of them felt as though they themselves were not responsible for the pain being inflicted on the people on the otherside of the glass. This is idea of such emphasis being placed on on teh social recognition of authority does not hold true in our society today. If there are unjust laws or pieces of legislature, our population rises up against the government to fight for what they believe in. Just by looking at the number of political rallies, protests, and demostrations in our country today, it is very obvious that we are not content with following laws just because an autoritative figure demands that we do. I beleive that Raz's suggestions that people do not need to believe in the justness or morality of a law in order to follow it is completly off the mark. If anything, people will follow unjust or immoral laws becuase of the fear of the imposed sanctions, not becuase of what some lawmaker is telling them. Our society has been successful in many demonstrations such as the civil rights movement, the feminism movement, and the constant strides that unions make for the blue collar working population. We are not a society that will blindly follow an authoritative figure.

Weekly Topic: The Reality of Legal Rules

One of realism's main preoccupations is with the social effects of legal rules and decisions. Oliver Wendell Holmes offers this example:

Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts to which our courts are kept busy to-day are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really the question of how far it is desirable that the public should insure the saftey of those whose work it uses.

This example raises several questions:

1. What difficulties does Holmes's example pose for natural law and positivist approaches to legal interpretation?
2. What are some examples where the law is inconsistent with social reality?
3. Why should the law be adjusted to address these realities? How could this adjustment be accomplished?
   
4. What dangers and what benefits would result from adopting the realist position that law is not only based upon questions of social advantage, but should be evaluated according to the social effects it produces?

TV Judges

When people have authority, their opinions are highly valued. Oftentimes, when a teacher states an opinion, students can regard it as fact. Also, when a judge says his ideas, we want to agree with him.
On competition TV shows like American Idol and Project Runway, the judges certainly have authority. As a viewer, you almost feel good about yourself when your stated opinion is similar to that of the judges, because what THEY say is right. On American Idol in particular, the judges don't vote on the contestants; the viewers do. However, the viewers tend to vote WITH the judges. This is probably because the opinions of the judges are important. What THEY think is close to being right because they have authority. If another random person on the street had the same opinion as a judge, that same opinion wouldn't demand the same respect.
Along with having lots of experience and having the title of "judge," there are a bunch of components that go into being a judge with authority. Another thing that I think makes someone have authority, or ethos, is the way someone speaks. His or her accents and manner of speech definitely influences the way his or her opinion is valued.

Why follow the law?

In class we discussed the various reasons for following the law. Laws are enacted to keep social control and to ensure some form of justice. If a person commits a horrendous act like rape or murder, they should be punished accordingly to ensure that the victim receives justice and to keep society in line. If there were no laws prohibiting such serious felonies, some people would be more inclined to do them. I'm not saying all people would because most of the population in today's society has some form of morals and would not purposely kill another human being whether there is a law prohibiting it or not. Also I think how a person is brought up plays a very vital role as well. If they are continuously told that certain acts are wrong and shouldn't be done, no matter what the law is, they are going to refrain from such acts. This is where I agree with Raz that people will think morally before acting as such. However, i think this is only true for serious offenses. If there was no law prohibiting shop lifting, i think there would be mass chaos in supermarkets and stores because many people do not stop and think about who that decision is affecting. Without laws and rules in society, we would have anarchy and our civilization could never prosper. We need certain laws that may seem trivial like jay-walking because without it, there would be many more car accidents and personal injuries. However, at the same time, i feel that police officers should use some discretion and leniency when enforcing these smaller, more trivial laws in order to keep the public satisfied.

Law as an Arbitrator

There was a question in class today about going to the law as an arbitrator even if we could lose something by doing it. I’ll use the example we used in class of, someone taking your stuff and refusing to give it back. If you call them and ask them politely to give it back and they refuse, you may try that a few more times. There will eventually become a point when you become so frustrated that you will go one of two ways. You will either try to take things into your own hands or you will use the law as an arbitrator. I feel as though most people would decide to use the law as their arbitrator because it gives them the best chance to get their stuff back, but also keeps them safe. Going to the police or filing a law suit is a much more controlled and safe matter than going to the persons house yourself. If you would decide to do that, you may put yourself or the other person in danger. There is a chance that if you use the law as an arbitrator you may lose something, but I think that that is a legitimate price to pay for keeping the situation under control. I think that most people you the law, instead of vigilante justice, because it keeps them safe, it keeps the situation under control, and most importantly it yields the best results. Those that put justice into their own hands are a danger to themselves and others. They also normally do not get the results that they would like.

Authoritative Power

I agree with Raz's assertion that legal authority is based upon the fact that it is socially recognized as a mediator among individual disputes. We depend upon the ability of the legal system to be a mediator. I think that the ability of legal authority to be a consistent mediator inspires trust in the system. In the absence of a consistent and authoritative means to mediate disputes,the outcome of individual disputes would be left to only the parties involved. This would lead to absolute chaos. Disputes would be resolved through force, and the stronger party would always win. The Milgrim Experiment's criticisms of Raz's view on conventional authority are legitimate. Authority by social recognition ensures conformity regardless of whether or not an individual deems it moral. The Milgrim experiment shows how this unquestioning obedience to authority can be troublesome. The power of authority can be and is abused all the time. Even though individuals in the experiment did not want to shock the subject, the authoritative pressure was sufficient to make them shock the individual. The coercive power of authority when in the wrong hands can be devastating. The Nuremberg trials are a good example of this. The defendants said that they were merely following orders and carried out their actions because authority had told them to do so. No matter how heinous the act, the Nazi's complied because of the chain of command. It seems that the coercive power of authority is both its greatest achievement and flaw.

Motivations for Following Law

There seem to be some a lot debate about why we follow laws, are laws just and where do laws comes from. The bottom line is that we do follow laws and will continue to follow laws because when people live with no laws, anarchy and chaos ensue. For instance, when people riot they don’t follow any rules. But as a result of this chaos property is damaged and people are hurt. The majority of the written laws are just, the application of the law may sometimes be unjust. The laws were made to fit different situations and you can’t always fit a situation to a law. People follow laws because of the negative consequences and for the benefits that laws give us. People benefit from personal property laws because they are able to own property. If anyone violates these property laws, they will be punished, so they are less inclined to break these rules. No one wants to go to jail, pay a fine, or endure any other negative consequences. If a crime is serious enough, most would not be able to live with the guilt of harming another individual. Most people are not vindictive by nature and live by the Golden Rule because they were conditioned to from childhood. Most people abide by laws because of a combination of its benefits, consequences, and because living with laws is better than the alternative.

The Milgram Comparison

I believe that Raz’s idea of obedience to the law is not completely comparable to that in the Milgram Experiment. While the concept is somewhat similar, I think the adherence to the law as authority because of its correlation with right reason is what separates it from the above example. The Milgram Experiment preyed on the obedience to the mere appearance of authority. Raz believes that right reason is what guides people’s decisions, and the law is simply a more complete and accurate extension of this. The law is not followed simply because it is a command, it is respected because we recognize its status according to logic. It is for this reason that people give the law such a dominant role of ultimate authority. If laws were completely unintelligible or unjustified, I have no doubt that they would be ignored. Disobedience during the civil rights movement is a great example. Many individuals of both races saw the mistreatment of African-Americans through bussing laws, and separate but equal as being in contrast with right reason and thus acted against them. This is also the way in which legal rules are changed, as is apparent in the Civil Rights Acts of throughout US history, especially in the ‘60s.

Social Recognition of the Law

I think that Raz’s claim that legal authority is based upon the fact that it is recognized as a mediator among social disputes is inherently true. People know that the law can resolve their legal disputes and turn to it in when they need assistance in such matters rather than taking the problem into their own hands. While in the past social disputes might have been settled with a duel or paying one another a certain some of gold or other valuables, people now leave this responsibility up to the legal authority with a genuine belief that their dispute will be resolved in the most civilized and effective matter, while being strict yet fair. I think the concerns raised by the Milgram experiment are legitimate objections to Raz’s view on conventional authority because if people in the society do not recognize legal officials as having the power of authority over their behavior then they will not turn to these same officials to see their assistance in mediating a social dispute. We should accept the law’s factual capacity to resolve the majority of disputes as reason enough to submit to its authority because by doing so we allow a third party to mediate the disagreement and hear out both sides and judge the case fairly. In most social disputes, a third party is necessary to provide a fair outcome and to ensure that justice is truly carried out. Also, I think that just because a legal authority receives social recognition, it does not mean that individuals cannot question its laws.

Adapting to the Law

Since there are so many technological advances and at such a fast rate, the law must keep changing to adapt to our way of life. There are certain gaps in the law because laws take years to make but technology advances daily. An example of this is illegally downloading music. People were downloading music for years and there was no regulation that prohibited, until the Digital Multimedia Act of 1998. The law had to catch up to technology. Also, the laws that are being made are not written by people who are using the technology, but by older men who are not as tech-savvy as the younger generation, the people finding loop holes in the laws. No matter what laws are made, people will continue to find loopholes or inventions to get passed them. It is almost impossible to make a law that is loop hole free, without taking away the basic civil rights of people.

The question of possession has to be dealt with on a case by case basis. Just because a picture is on a computer, doesn’t mean that that person owns the picture. The problem of possession has to be solved at the source and the source of distribution. You have to find out who took the picture.

Ownership of Digital Media

I would like to respond in greater depth to the question raised in class about the actual concept of ownership, especially of something in a digital medium, such as via the internet. With the advent of the internet came new problems, as we discussed, about the concept of ownership. One of the first ideas developed in class, was the idea that any item saved on one's hard disk can be considered ownership, consequently the U.S. Supreme Court has ruled something very similar, that having a digital "negative" meaning possessing an actual copy of the photo, in such a form that it can be manipulated by the individual, much like a tangible negative, confers ownership of that photograph to the individual. This is especially true if the individual has paid, either for access to the photo or for the actual photo itself, any fee. I would also look to expand this to cover the ideas of Cara's post, Photography and the Internet, and the idea that the only way to have actual ownership is to have some form of copyright to the actual picture. In one way, this is very true, especially if the photo is to be published the original photographer will copyright the photo, but this is done more so that the individual will receive credit and compensation for the photograph. In addition, I do not believe that it is required for an individual to hold the rights to a specific photo in order to be in possession of it, or in this case to "own" it.

Photography and the Internet

Per our topic of discussion in class today, I've decided to blog about it and state my views and beliefs. There is really no fine or clear line on where ownership begins or ends on photography. It gets especially fuzzy when the internet is involved. I believe that there is really no true ownership of any photography unless you declare it for yourself along the lines of the law using copyright law. Photography is along the same lines as art which includes paintings, movies, and sculpture. In order to declare ownership the artist must declare it so I believe that the same should go for photography.

However, when the internet is involved there is absolutely no line or regulation. The government cannot keep up with the upcoming technology because it is constantly changing and becoming more and more advanced and the courts and decisional law cannot simply keep up with it. This presents a problem for ownership of anything that it put onto the internet. If you agree to put your pictures on the internet without copyright, you have to be able to understand and accept the possibility that your photographs can be stolen and used for something else by someone else. You have no rights to anything that you put onto the internet because it is used worldwide and it is next to impossible to keep up with it. Even if you were offended by someone stealing your photography, there are no laws to back you up.

Accepting law

As Raz says, accepting the law on the authority that it must be obeyed is the basis for obedience in western cultures. This poses a very large problem to our society. Simply accepting that the law is the law and that is the merits that it should be followed on is dangerous. The first example that comes to mind when this method of authority is mentioned is Nazi Germany. When we look at the political and social environment at the time, we see that there is a subtle upbringing of new laws that would seem ghastly by any comparison. Since Germany was in a political climate that fostered its citizens to be desperate, they accepted laws that were simply placed upon them and obeyed because they were simply laws of authority. It is hard to believe that the laws that the people of Germany under the Nazi regime were accepted at all. There is clearly no way that these laws could have been accepted on the basis of morals. Small groups of Germans may have agreed with these morals, but the entire society submitted to this rule. It is highly unlikely that they would all submit to these laws on a moral basis. This is one of the largest problems with submitting to laws only on the basis of authority. It is easier to be convinced to obey immoral laws simply because they are law.

Legal Authority

I think legal authority is important as a mediator among individual disputes, but it is based upon more than just that. Legal authority is also based upon people following and respecting the law. I guess that goes back to the discussion of why people choose to follow the law. If people follow it for moral reasons, then the legal authority is kind of irrelevant. But if people follow the law because they are afraid of punishment or respect what the law does to protect their own justice, I think that is because of legal authority. I think most reasonable individuals do recognize legal officials as having commanding authority, whether we may agree with their power or not. And even though some parts of our legal system may be corrupt or unjust, a legal authority still exists. I think we should accept the law’s capacity to resolve disputes because we really have no better option to do so. Some disputes are probably better resolved without legal action but others need an arbitrator involved in the situation. I think the law’s capacity to resolve disputes is reason to respect its authority, but there other reasons as well, such as the preservation of justice and individual rights. I guess it makes sense to think that people respect the authority of law when it benefits them.

Weekly Topic: Law as Mediator

Joseph Raz claims that legal authority depends primarily on the social facts in which a particular legal system exists. In Western democracies, for example, legal institutions owe their authority partially to the fact that they are habitually obeyed. Because obedience is a social fact, Raz suggests, it does not matter whether individuals agree with or morally approve of legal rules. It doesn't even matter whether legal rules are genuinely beneficial to the individuals who obey. What matters for genuine legal authority is whether individuals recognize legal officials as having commanding authority over their behavior. While examples like the Milgram Experiment suggest that authority based on social recognition undermines individuals' abilities to question or otherwise change the rules accepted as having legal authority, Raz justifies his approach with two observations: on the one hand, such a view of authority is basic to our culture's experience of law. On the other hand, such a view is amazingly effective at resolving disputes.

What do you think of Raz's claim that legal authority is based upon the fact that it is socially recognized as a mediator among individual disputes? Are the concerns raised by the Milgram Experiment legitimate objections to Raz's view on conventional authority? Why should or shouldn't we accept the law's factual capacity to resolve the majority of disputes as reason enough to submit to its authority? Within Raz's theory of legal authority, how do changes to legal rules come about?

Internal and External Morality

Does every person begin with only external morality and then internal moralities develop throughout life? I think everybody's internal moralities depend upon their religion, family, and other aspects of growing up. Also, there are different types of external moralities. Because morality is such a confusing issue, especially when considering both internal and external morality, I think it is very hard to determine how morality relates to the law. I think it is a combination of a lot of the things we talk about in class. Some laws are laws because of certain peoples morals, while others may not coincide with the morals of many people. Some people may follow laws because of internal morality, such as not killing or robbing others. But some people choose to break laws because their morals tell them that the law is unjust, like people who choose to underage drink or even certain drug crimes. I think society influences a lot people's morals, which is the reason why other cultures are so different. Many things that would be considered morally wrong in this country are accepted in other places. So I guess some morals are kind of forces upon us in a sense because we are generally accepted to conform to our country's laws regardless if we believe that they are correct. So, I think laws are created for a variety of reasons and they are also followed for a variety of reasons. But, I do think that internal and external morality play a large role in lawmaking and following laws.

Average out Morality

What we do in the United States is average out the morality and assign an 'appropriate' punishment to the crime. It is easy to take murder, rape, and the alike and explain why there is a very large punishment. This is because the average amount of people think that this is an extremely horrible thing to do. And to take the other side, such as speeding, the majority amount of people believe that this is a regular crime that can be committed without serious punishments as long as you don't go over the speed limit too much. Now I believe, all the crimes in between the light and heavy ones, are all averaged out and have a direct correlation between the amount of punishment and the level of morality that the average people think. That is where judges come in play. They try to take the general public's point of view as well as precedents and the law today. When the general public's point of view changes, that is when you will see punishment levels change. That is why I believe people who say morality has nothing to do with law are full of crap. Sure People follow reasons other than morality, but the fact that there is a punishment correlated with morality allows morality to come in play. The reasons people follow the law will not always be consistent. Take the most arguably conservative group in the US and you will see that they break the law all the time, the Amish. They live a humble life and follow morals. Not often, but murder and other serious crimes happen within there communities between one another. Now they have morals of being clean, humble, and boring but things can happen. I think that morality is the basis for why people follow the law, but there are so many instances where even I break or follow the same law for different reasons. Like I said in my last blog, if I speed there are tons of reasons why I can or cannot justify my actions. If I am late, if I don't care at the time, because I don't want to get in an accident, because I don't want to get a ticket, because I think it's wrong at the time, and the list goes on and on. There are far too many things that can affect decisions and I think if someone tries to narrow it down to one thing, they are just wasting their time.

Any reason you'd like

Individuals follow law for a variety of reasons. Some people follow the law because they believe it's morally correct to follow the law. Others follow the law because the law reflects their own moral values. Still, people follow the law because it benefits them or because they fear punishment. The list will continue forever. I believe its impossible for there to be any one reason why people follow the law. Laws should be socially constructed to establish a set of rules that promote behavior that is beneficial to citizens and society. Thefore, laws do often reflect the moral values of a particular society. It is totally up to the individual whether or not to follow the law. Adherance to the law is completely voluntary. People often weigh the risks and rewards with respect to breaking the law; thus the reason why the punishment must fit the crime. Many people decide to break the law when drinking alcohol under the age of 21 because they believe the risk of being caught is small and the punishment is not severe. The same individual may think twice about stealing a car. The reward for stealing a car is much greater than getting drunk; however, the risk is also greater considering auto-theft is a felony and carries a prison sentence. People are more likely to break the law and bend their morals when the risk of punishment is low. That is not to say that people always adhere to the law when the punishment is great. People still rob and murder because they are not forced to follow the law. Again, the decision to follow the is completely voluntary; therefore, individuals have an infinite number of reasons to follow or not follow the law, morals and punishment are not always considered.

Why do people follow the law?

Does the law have to make an appeal to the conscience? I do not think that it has to. Some people may feel that they have to obey the law because their morality forces them to do so. But, some people who do have morals and some people who just do not care about morals, may not feel that this plays a role in why they follow the law. Then another question arises. Do people simply follow the law because they want to avoid punishment? There has to be a reason why there exists such a threat of punishment if one were to break the law. I believe that this threat exists because some people do not judge whether an act is right or wrong before they carry out that act. Instead they consider the possibility, if the result of this act overweighs the consequences. People in this society are afraid of punishment. They do not want to do the jail time especially if the consequence of their act implies an excess sentence. Also, when it comes to the “rule of recognition”, I do not believe that many people even comprehend that they can benefit from the law. Deep down in their minds it always comes back to them that the law is always against them. People despise police officers, lawyers, and sometimes judges even though they are the ones that broke the law. I think that if people of a community realize how the law helps them, that this combined with the aspect of “command theory” then that would describe why people follow the law. Therefore, I would agree with this role of convergent behavior which is a goal of positivism. People would act accordingly by either threatening with punishment or by offering incentives.

Times Are Changing

I think that morals are the basis for all of our laws but we have to modify our laws because times have changed. The Constitution is constantly adding new amendments and this is because the world we live in is constantly changing. Do you think the founding fathers really new that there would be a thing called the internet or things like the automobile? We have had to add on to the original laws and make some adjustments because of this. Traffic laws and laws on computer use are in place to protect the people and keep everyone in a safe environment. All these things in our constitution started with morals and I think that the amendments we have had are derived from morals also. A lot of people have argued with traffic laws and saying that there is no morality in them. I disagree and feel like morality is in them because we don’t speed to ensure the safety of others and ourselves. Morality I feel is the best way to have laws because it gives people something more to believe in. I would find it harder to follow a law that I didn’t believe in. It’s true that people don’t have the same morals but I feel in general people have similar ones. The Ten Commandments are respected and similar to most religions. For example you shall not kill is pretty accurate with most people’s beliefs.

Coherence Is Not Necessarily Good

Fuller believes that good legal systems have more coherence and order from it's subjects, but I disagree. A good legal system should have good coherence and order, however it is not always the case. A horrible legal system can have good coherence and order if it is done through fear. People could only abide by the laws and regulations out of fear of persecution or death by the government. On the contrary, a bad legal system can also have great coherence. An example of this would be if there are no laws at all, then technically, everyone is abiding by the laws, but anarchy is not a good legal system. To accurately judge a legal system as good or bad, one must gauge more than just whether or not the society is coherent to it by following it. The legal system itself must be judged as to the fairness of the laws as well as the people's emotional reactions to following the laws, rather than if they blindly follow said laws like sheep.

Morals and Precedent

The thing about morals is that they're constantly changing. If morals never changed, the constitution would have exactly zero Amendments. With morality so intangible and flexible, particularly over time, what kind of value does upholding precedent have?

This is where landmark court decisions come into play, and why they are considered landmark. Usually, society's morals change slowly and subtly, and it's almost unnoticeable. It's kind of like growing- you don't realize you're six inches taller until you go back to the doctor and they measure you. Then BAM, all of a sudden there's this new outlook on things. This is when precedent is overturned, when judges and the courts can no longer ignore the moral implications of not changing previous decisions.

Morals are just something that you KNOW. You don't know how you know, you just do. You feel it. But sooner or later, what you know will change, and the laws must accommodate this. Example: before the 1860's, slavery was legal, and everyone just KNEW that black people were inferior (I'm just making a point, this is not how I really feel). However, somehow in 1954, we just KNEW that separate but equal was wrong, and all citizens of the United States are equal. Precedent was overturned because of the budding changes in what society knew to be morally right.

A flip on internal v. external morality

I do not believe that we can place to much emphasis on this theory of internal and external morality relating to law. There is a large demographic of criminals that do not share the same sense of morals as the majority of the population. With this being said how could they be compelled to explain and justify their decisions towards goodness if they are not sharing the same sense of goodness with the general public. Some heinous crimes that are committed only have an internal sense of morality, however skewed that may be. Harts claim that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness". What sense of goodness could a child rapist pull his acts towards. The public is very unforgiving for sexual offenses, especially against children. While criminals of this pedigree may be able to internally justify their actions, there is no possible case that they could make to externally justify what they did. Because of this, I do not believe that legal scholarship can place much belief in Fuller's claim. It is for this reason that legal positivism must be the overruling law theory in order to most effectivley govern a group of peoples. Morals should not be brought into the penumbra cases where the core solidified meaning of precedents are debated. These precedents should be followed becuase of the legislation that comes out of them, not the morals that they were decided upon. Whether or not this sense of morality could have effectively worked in the court room a few decades or centuries ago, with our society today, legal positivism must dictate that legal scholarship follow the letter of the law in all cases.

Internal v. External Justification

According to Fuller's account of the internal procedural aspects of morality when pertaining to the law, I do not believe Fuller's claim that "when men are compelled to explain and justify thier decisions, the effect will generally be to pull those decisions towards goodness," can be proven completely. This can be substantiated when it comes to external justification to another person but I do not believe that all crimes can be justified by the perpetrator internally. Just because a criminal tries to justify the crime they committed to the outside world does not mean that they believe within themselves that they were doing the right thing and that their actions were legitimated with a "good" purpose. Fuller's claim makes me wonder if all people actually do have a conscious and know for what reason their crimes were actually committed. Obviously once one is caught and even convicted with a crime, they are going to try and reason towards a purpose that has moral and right backing. They are going to try and justify thier actions to the best of their ability and "towards goodness." But, I believe that everyone knows the selfish reasoning behind thier actions and that thier own internal justification can be pointed towards immoral reasoning. A criminal is by default someone who commits wrong so the likelihood of their admittance of criminal intention to be towards "goodness" is very high compared to doing the correct thing and admitting the wrong justifications for why their actions occured.

Fuller and Natural Law

Fuller says that law is about guiding human behavior and you do this by appealing to their conscience. This makes sense in theory and may work in individual societies where everyone has the some type of thinking. In a diverse culture, such as ours, it is hard to appeal to everyone’s conscience. With so many different ways of thinking I think guiding human behavior would by extremely hard to do let alone work all of the time. Fuller also said that if the laws do not appeal to someone conscience they cannot effectively guide human behavior, which according to Fuller is their sole purpose. This is why I believe that positive law is the only type of law that can work in a society like ours. With lawsuits and disagreements everyday about religion and the state it is extremely hard to make law on a moral ground only. Positive law throws all of that out the window. People follow the law because that is what they are told to do by a leader, or elected leader in our case. In our society we can also effect positive law with elections and pressure on our government officials. I believe that this simplified version of legal theory is what works in the diverse culture that we have today.

Fuller also says that “bad” laws show that morals should be part of law. I believe that “bad” laws can be taken care of in our society by positive legal thinking because our legal officials can change the law. Where as if the law was a matter of morals and there was something you did not agree with there would be no chance of changing it.

Internal Morality

I believe that Fullers belief that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness" could very likely be valid and could certainly be the case for most men. That belief explains why most people probably do follow the law aside from the Role of Recognition. Breaking the law, personally, is an embarrassing thing to do. If one breaks the law, without thinking about the consequences then most likely, if caught, they will have to explain and justify breaking the law. That could humiliating to any reasonable man. Knowing this, most men will most likely avoid breaking the law in fear of being embarrassed or humiliated when trying to justify the reasons for doing wrong. It is morally wrong to break most laws. However, there are exceptions of course. Any human being that murders or rapes or commits any major felony, obviously has a problem psychologically. I don't believe that most criminals have the mental capacity to think of the consequences before committing the act. This explains why most criminals have no education and are usually mentally ill in some way. In this situation, Fullers belief would not stand valid. There are always exceptions to any rule. For the most part, for any reasonable man, I believe that what Fuller asserts could be possible to why people follow laws. Although there could be many other reasons for every person as to why they individually follow the law, Fullers belief makes most sense to me.

I am an example of Fullers belief in that I follow the law because I would be so embarrassed if I committed a crime and had to be exposed to everyone and looked down upon.

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.

Jurisprudence and Political Framework KD

I raised the following idea in class: Does either form of jurisprudence form a grounding in a political system (capitalism, socialism, communism, fascism)?

Now we, living in a capitalistic society, have a system of law which, for the most part, is grounded in traditional natural law. Though is important to note we also have areas of law which are positivist in a sense.

However, say one lives in a fascist, authoritarian country where authority of the state is emphasized. Now in this state of government, laws could, hypothetically, be grounded in some type of traditional natural law. Yet, does it not make more sense that in these types of countries--take the classic Hitler example--that what the leader says goes, a positivist point of view? It seems that in these types of governmental structures the greatest way to ensure public cooperation would be a form of positivist law, not traditional natural law.

It is interesting to see how this has historically, and currently, plays out within countries. I still believe, however, that a well run government, like the one in which we live, must imbue both types of jurisprudence in order to ensure cooperation and freedom for individuals. After all, living under a positivist state of government raises the command theory, which, does leave the individual with much choice. Again, whatever the leader says goes.

Positivism, Natural Law, and The Nihilist KD

It is my opinion, after studying both traditional natural law and positivism, that both forms of jurisprudence, more or less, are accomplishing the same goal--that is, they are both having society cooperate under a set of given laws to ensure the greatest good or greatest gain for individuals. It is, in essence, some form of a social contract.

Though both forms of jurisprudence are effective in having society cooperate, how does either system reach a hardcore Nietzschen nihilist, an individual with no belief in moral existence, an individual who acts and then justifies their actions, an individual who creates their own laws. Well, clearly, the nihilist will not obey the traditional natural law for he or she will not believe in any ontological moral proof. Likewise, the nihilist will not obey the positivist for they will not listen to any law. Recall: the nihilist is his or her own creator and make his or her own rules after they act.

I suppose this situation may be futile. After all if one does not believe in the concept "law" then there may be no hope. Perhaps this is comparable to trying to convince an atheist to believe in God.

I suppose my question at this point is this: What besides social gain/ moral adherence does either system of law offer to an individual? Moreover, at what price does following either types of these laws sacrifice the individual within each of us, that is, does adhering to a system of laws diminish what we are capable of doing, diminish what we are capable of becoming? In other words, do laws put restrains on who we can and should become?

Morality or Fear?

After listening to the discussion in class on why people obey laws, I have come to certain conclusions. I feel that it all depends on the crime that is being committed or not committed. Certain crimes that have been around for centuries like murder, rape, and robbery have stayed illegal over all these years for a reason. A normal, moral person would not commit these acts because it is wrong morally, not just because they will get into legal trouble. If the punishment for murder was only one night in jail, I do not think we would see much of an increase in the overall rate for murders. I do not commit murder, rape, robbery or other similar offenses because I would not be able to live with myself knowing that i took another life. However, for certain offenses that don't necessarily have a direct victim like shoplifting or drug possession laws, i think that if there was no fear of legal actions, there would be a large increase in these crimes. It takes a lot out of a normal, decent person to physically take someones life but taking a candy bar from the super market because you didn't have enough money to buy it isn't so hard. Very few people think about how if everyone starting shoplifting, then the businesses would fail and the economy would fail as well causing mass lay offs and firings which would make the unemployment sky rocket. Most people only look at the effects that will affect them immediately. I don't walk around town with a joint in my mouth solely because of my fear of being arrested and possibly sent to jail. However, not everyone in this country shares the same morals and many don't contain any morals. This is the reason we need sanctions and punishments for all illegal activities so there is as little gray area in the law as possible.

The Internal Morality of Law

Based on Fuller’s account of the internal or procedural aspects of morality pertaining to the law, I believe that it is possible to substantiate Fuller’s assertion that “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.” Fuller’s view of the ameliorating effects of internal morality is provable in my opinion, because often times when even serious criminals are asked to explain why they committed a crime, they can often justify it with what according to them is a good reason. Also, when someone is forced to stop and think about the decision they are going to make, chances are they will make a better decision then they would if they went right into the action without first analyzing it. Some controversy and disagreement might result from Fuller’s views on internal and external morality, because many will argue that you cannot simply judge the effectiveness of a good legal system and separate it from a bad one based simply on the amount of coherence and order that it promotes among those subject to the law. In his book “The Morality of Law”, Fuller provides eight routes of failure for any legal system and for each of these routes he provides a corresponding principle on how to avoid such shortcomings and claims that these principles represent the “internal morality of law”. By adhering to these principles that Fuller wrote, he argues that it will lead to a just law and avoid unjust laws.

Morals vs Punishment

In class we had a discussion about if people deter from crimes because it goes against their morals or are they more afraid of the punishment. I personally believe we are becoming a less moral society because times are changing such as the advancement in technology. I think people in society deter from crime because of the punishment. For example when college students are drinking under the age of twenty one they are not thinking this is morally wrong they are wishing they wont get caught by the cops. We commit crimes certain crimes because of the punishment we will receive. For example one of the ten commandants is You shall not kill. If the punishment for committing homicide was not a possibility of serving a twenty years or more in prison people will kill more in our society. There are many times I saw people loose control of their anger and wish they can kill that person but out of fear of the punishment they don't. An another commandant is You shall not steal as we all know stealing is morally wrong but a lot of people in society steal for different reasons. The punishment sentence for someone who steals is not as long as a committing homicide. My question is what if the judicial legal system made crimes have the same punishment will people deter from crimes because of their morals?

Weekly Topic: Internal and External Morality

Lon Fuller suggests that good legal systems can be distinguished from bad ones by the amount of coherence and order that they promote among those who are subject to the law. Nevertheless, Fuller admits that for him this "assertion of a belief that may be naive [. . .] that coherence and goodness have more affinity than coherence and evil" remains unproven. Based on Fuller's account of the internal or procedural aspects of morality pertaining to law, is it possible to substantiate Fuller's assertion that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness" or is Fuller's view of the ameliorating effects of internal morality fundamentally unprovable? Regardless of whether it can be proven or not, what consequences in legal scholarship do you see resulting from such a view and how do they differ from the positivist claim that legal scholarship must rest on the letter of the law, e.g. interpretation of penumbra legal disputes in light of the core solidified meaning of precedent?

Traditional Natural Law = Positivism

In theory, Traditional Natural Law theorists would be the same as Positive Law theorists. Traditional Natural Law theorists want the law to be based on morals. These theorists would definitely follow the law if the law was completely moral. The Positive Law theorists would definitely follow this same, moral, law. There is only a difference between the Traditional Natural Law theorists and Positive Law theorists when laws are immoral. So, in theory, these two different types of theorists would be the same. However, theory is different from practice.

Ideally, all laws are moral. Yet, that is not the case. There are a few reasons that a law would be immoral. One reason is that the law was moral at its inception, but has since become immoral. For example, a law that doesn't account for new technological advances could become an immoral law. Another law that is immoral is one that only seems moral for most people or for a lot of people. For example, a law requiring rich people to pay a higher percentage of taxes than other people may seen immoral to those people paying taxes. Yet, it seems moral to those struggling to get by.

I think one of the goals of the legislative branch of the government is to make the disconnect between the Traditional Natural Law theorists and the Positive Law theorists as small as possible. It is impossible for this gap can be completely bridged because society changes and because each person has a different opinion about what is moral.

Chicken or the Egg...

I have been thinking about the great debate about the morality that surrounds law. Many times we have cited that morals have preceded the law and has helped us make the law. While it is true that we have had these morals for a long time, it is hard to say that morality is the only thing drives the creation of law. While we also look at this and try to determine the morality of observing laws we must look at the inherent nature of obeying law. Is it immoral to obey a law that on it's face isn't immoral like speeding? We say that because the law was created, to disobey the law would be an immoral act because its the law. Is it immoral to disobey an immoral law? that is the ultimate question on this topic. I believe that only laws that prohibit immoral actions should be considered immoral to break. Breaking laws that have no morality involved with them should not be immoral to break because it is simply a law.

Changing view

I definitely agree with the statement that morals are not universal. Like most ideas, concepts, beliefs, etc., morals are socially constructed and relative to the context in which they are created. At first glance, it would be easy to dismiss morals or any non-concrete concepts as basis for law. Surely, law should be something concrete and unbiased--but can such a thing exist? It seems to me that law, like the majority of concepts and ideas, is a socially constructed institution. Law has existed throughout society but is constantly changing with society.
During the modern era (modern philosophical era) the emphasis became the idea of the subject or empowered individual. The enlightenment brought about a change of view in relation to the individual--so naturally law changed to suit this trend. The 20th century in many ways (often to a fault) is stuck on the modern era's notion of the empowered individual and thus law has often be changed or constructed in light of protecting the individual, sometimes resulting in "gaps" or "loopholes" that hurt the larger society. Ernesto Miranda committed a violent crime, yet won his case because as an individual his rights were limited do to the fact that he claimed to not fully understand his rights which is guaranteed under the due process clause.
Most people in Miranda's situation would find the modern notion of the individual to be great as it would prevent them from serving time. However, his action hurt society. Morally his act was wrong, but he was able to get off due to a technicality. There was a time when being guilty meant being guilty. Now, to be guilty means that not only are you guilty, but the prosecution and police did not mess up in some way.
It's all relative. There was a time when Miranda would have been punished without a thought of his natural rights or due process of the law, but now, in our view of the empowered individual, law is often limited by human error.

Positivism and Natural Law both necessary

There are aspects of both Positive and Natural Law theories that are important to keep order in our society. Positivism definitley refines and improves upon natural law theories, however the orgins of positivism are dependent upon Natural Law. Natural Law theory, which states that there is some form of a higher law can not be used in every situtation that occurs in today's society. There are many issues that have arisen that have no moral basis that legal positivism makes rulings on. The common examples that we have talked about are the different traffic violations and speed limits. However, legal positivism would not exist or be followed by people if it werent for natural law. Many of the laws that we follow have a moral basis and this influence people to follow them. While positivism creates sanctions for those that do not follow these laws, I believe that many people only follow some laws because of the moral, not legal implications. While people would certainly not want to go to jail for murder, I believe that moral implications keep people from committing this crime more so than the legal sanctions. I believe that legal incorporationists have the most valid view on law theory. the hold that moral prinicpals may be part of the onditions of legality set in the rule of recogition. Without the issue of morality, many people would not follow many laws set by legal positivism. Legal positivism definitley expands upon natural law theory but could not exist without it.

Are morals universal?

Usually when I think of morality and the law I think of religion and the thought of a “higher law”. Now I have come to the conclusion that morality does not have to be intertwined with religion. You could be a person of no faith and still have morals that compare to those of people of faith. People are instilled with a set of morals when they are just small children. They act on the examples that they witness from others including their parents and other people. This means that they do not have to be religion based. Therefore, morality and the law could go hand in hand and not have anything to do with religion at all. Also, dealing with morality, just because a person breaks the law does not mean that they have no morals. That person could still follow through with that act and even though he did it, he still knows that it is wrong. As a child he was taught what is right and what is wrong. This means that as a child our culture shapes us, which now leads to the universality of a “higher law”. Different cultures have different forms of a “higher law” and different cultures have a different view on what is and what is not moral. Therefore, if laws are actually based on morality then different nations or cultures may have different laws. Therefore, moral or ethical standards are not the same throughout the world.

Little Girl Values

The question with the Phillies debate seems to be, "was it right for the Phillies to do what they did?" I think it was acceptable, if not morally outstanding. It certainly wasn't inherently evil.

The thing about payment and transactions is that everyone has their own preferences. Economics-wise, I might not value a certain baseball as much as someone else does. Therefore, I could concievably sell it for less than a more devoted fan. In this sense, the transaction was valid. The little girl valued the autographed ball just as much as the home-run ball. Therefore, in economics terms, she was indifferent between the two goods.

Now, there were plenty of allegations about coercion and illegal activity, and she wasn't in sound mind, she's a minor, blah blah blah. If this was true, then yeah it was illegal. If it wasn't and they simply convinced her without threatening or intimidating her, then there's really nothing wrong with trading one ball for the other. The law should reflect the economic realities of the situation.

There are plenty of questions about 12 year olds entering into contracts, was she legally able, whatever. The fact of the matter is, she accepted their offer when she didn't have to. The real question is: would she have traded the home-run ball for an autographed ball if it had personal, but not monetary, significance to the batter or team? I think she would. ...But would the parents?

Following for the right reasons

My main theory is that why cannot theories all interblend with each other? The reason I ask this question is because every time I either break or follow a law, the reasons are always changing. Whether or not you bring morality in the equation, I am still making the choice that I am going to follow the law or not. I make several choices every day and there is not one thing that I can say why I follow the law because of one reason. I may drive down the road and break the speed limit for so many reasons, because I'm late, because I don't give a shit, because I want to look cool, because I forgot, because I want to be a good person, and the list goes on and on. Reasons for following the law, as I believe, is a dumb way to look at things because we will always do whatever we want in the end.
As far as morality and law go together, I think we need to realize that the United States formed from a very Christian and white (WASP) group that we will never get rid of without the proper amount of time. So I believe that there are morals formed with our law because "God" is in our constitution and will never leave. We swear on a bible whenever we testify, so there is obvisiously morals involved with our laws and we follow them because whenever we make a desicion to follow the law, we think about something and that something is our morality because we will always think about how it will affect us. It might not always be about the "good" factor but the fact of thinking about how it will better ourselves boils down to the point of our own morality. Our own morality is insignificant in our world the the "general public" which I am referring to is the entire world. That is the overall level of measure that we must look at if we are about to talk about morality.

Ryan Howard Ball

The legal positivism group talked in class on Thursday about the Ryan Howard homerun ball. As we learned the Phillies organization was wrong to persuade the young girl into giving them the ball. It was viewed that the girl couldn’t make that type of transaction at that age. I feel that it was not morally right for the girl to be treated like that because she really had no idea what the value of the ball was. I do feel though that it is expected for the fan to give a milestone homerun ball back to the homerun hitter because it is very special to them. Legal positivism is rules that are made unintentionally or deliberately by human beings. It becomes a norm of the fan to be generous and give the ball back to the homerun hitter in exchange for some value. The cotton candy and other baseball were not sufficient enough in this case. As we talked about before I don’t think this a case of morals because nobody is morally obligated to that ball. Just like it is an unwritten rule for fans of the home team to throw a ball back when it is hit by the opposing team I feel like it is an unwritten rule to return a milestone homerun to the person if they are given the right type of compensation.

Experience vs. Deity

If I understand this correctly, Positivism, is based off of experiences in which we have come upon. While Natural law Theory, is ones belief in a higher power. With this being said, we come to morals vs. laws. Like we discussed in class, some religions encourage drinking, however, our laws in the United States say different for those under 21. Just like in the Catholic Church, one receives the body (bread) and the blood (red wine) of Christ. It's silly to think that we are not drinking wine after one goes through their first holy communion. So what do we do here? Do we receive the blood of Christ with the fear of getting in trouble with the cops outside of the church? No, of course not. We will drink the wine because it's our belief, it may not be acceptable outside of the church, but our morals tell us that it is ok. Also in Rob’s post he talks about the speed limit. We see the speed limit and follow it for the fear of the repercussions; we don’t follow the speed because it’s morally right. Now if we were to get into a fatal car accident and hurt others, then we face some moral problems. Not being responsible, and caring for the other lives that were in our car, or others, that is where we find a problem. The deal here in which I believe, we need to have a mixture of the two, follow rules for our morals and higher beliefs. Also, follow other rules because things because we have seen and experienced.

laws protect rights

In class we have talked about laws that are morally based and laws that are put in place to control behavior of citizens for some reason (speed limits, zoning regulations). Laws that attempt to regulate society end up making a process out of completing certain tasks. For example, if you want to add an addition on to your house, you must obtain a building permit. On most occasions, residential building permits do nothing to protect society. Sometimes the extra regulations work to maintain safety and protect morals. Before an individual is 18 years old, he or she needs the consent of a parent or guardian to partake in certain activities. One thing a minor can not do is enter into a contract. However, minors can still own property and that right should be protected.

This is Why We Move

I believe that there is no universal morality, but I believe that is why each individual nation has such a distinct set of laws. You cannot encompass everyone's values in any set of laws, that would literally be impossible. I believe that this is a big reason for immigration between countries. People move away from the United States if they do not believe in the way our land is governed. In turn people also move to the United States (an example of this would be illegal immigration from Cuba) because they feel that the way this land is governed is much more closely related to their own moral umbrellas. Most people in America have similar moral values because it is tradition passed down from generation to generation. As the generations go on, our moral umbrellas are spreading. This can tie back into feminist jurisprudence. As we go on in the United States we are creating more opportunities for women that we as a nation didn't always see as morally essential. Each country is [free] to do its best to influence other countries as they see fit (an example being segregation in South Africa)- but it is ultimately up to the country in question to lead their citizens. Some countries may even be narrowing their moral umbrellas, it is all just a matter of society. Which ever way the government pushes the society (Whether influenced within the government itself, or influenced by citizens that push for change) is the way the moral umbrella will fall.

Law and Morality

For me, it is way too complicated to even begin to consider law and morality. There are so many instances where law and morality are completely unrelated, such as traffic violations. Then, there are laws that clearly coincide with morals, such as those involving murder and other serious crimes. But, I think that many things that are illegal in our country cater to some people's morals and ignore others, such as prostitution and certain drug offenses. Because certain people think prostitution is wrong, it is illegal. There are so many examples of crimes that society may see as wrong but plenty of people's morals find to be acceptable. Morality is so different to each and every person that I think it is impossible to say that morality is related to law much at all. If we were to truly use morality as a criticism for legal rules, I think morality would have to be consistent and understood in the same way for everyone, which it definitely isn't. But, I do agree that moral criticism is a basis for changing law. However, the law caters to the morals of some citizens and not others.

Benefits from the Law

It has been said that people mostly follow law to avoid the sanctions. While I believe to be somewhat true, there are people that follow the law to solely avoid the sanctions the come along with it. There are also people who follow the law because of the freedoms and benefits that it provides. Hart believed that if we did not have law we would be living in a savage society where your property was not protected, your life was not protected, and yours rights to do various things was not protected. For example let’s look at our country how many times have you heard someone say, “Hey, it’s a free country.” Is this not an example of them exercising their benefits that the law provides? Citizen of the U.S. enjoy the right to free speech, right to own property, right to assemble, right to practice the religion of their choice, and the right to bear arms. All of these rights are exercise by people around the country every single day. In class we use our right to free speech, we all use our right to own property, protestors use their right to assemble, and we practice our right to choose our religion when we go to church on Sunday. I do not think that people use these rights because they are afraid of the sanctions that will be brought against them if they violate them. These rights have been come so ingrained in to us that they seem just inherent so we do not see them maybe as we should.

Should Laws be Natural or Positive?

The whole argument about whether laws should be Positive or Traditional Natural Law will never end. Each has their own valid argument. Whether Positivists like it or not, Positive stems from Traditional Natural Law. The laws that are written down came from laws that were in existence of some form and the laws that were in existence were moral laws. All Positive laws are derived from the Ten Commandments. The last five Commandments have clearly influenced certain laws that are still in place. Most of the written laws we were taught as children, under the pretense of the Golden Rule. People grow up knowing most of the written laws because they were taught, as children, that certain acts are wrong or “not nice.” I do believe that Positive Law is more secular and easier to understand then Moral Law, but not necessarily more valid. I am ruled more by Moral Law then Positive Law, but my morals just happened to coincide with most Positive Law. And the morals that don’t coincide with Positive Law, I just haven’t been caught doing yet. I think Moral Law refines the sticky area of Positive Law. Taking the religion out of a law makes it more applicable to more people. If every person had the same religion then Moral Law would still rule the land. Positive and Moral Law both serve the same purpose; to control the masses. Laws and rules of any kind are made to prevent anarchy.

Hart's Criticism of Natural Law

The key difference between Natural Law Theory and Incorporationism as presented by H.L.A. Hart is that each side interprets the same phenomenon differently. Few would argue that there is a certain commonality between various legal systems, such as the prohibition of murder. The Natural Law theorists understand such similarities as deriving from a “higher law” which is universal, innate, and cognitively accessible to humans. Incorporationists such as Hart, on the other hand, recognize this as a mere coincidence of social values. Whether or not these social values are also referred to as “morals” is not an issue. The reason Hart allows for moral criticisms of the law is because describing a law as “immoral” is equivalent to calling it “a contradiction to the accepted social values of a given society.” He is unconcerned with which term one uses, but his understanding of the limitations of moral concepts in the sense Natural Law Theory uses it requires that the law not be sheltered from all other considerations. This openness to moral criticism also reinforces his separation of “law as it is and law as it ought to be” which he claims Natural Law theorists fuse together. Despite allowing for moral criticism of the law, Hart does not imply that a law that can be morally criticized is not a law at all. Among others, these distinctions lead to my conclusion that Incorporationism’s main critique of Natural Law is that it is simply too insular. It does not account for the variety of moral perceptions in the world and is stubborn to the existence of any law not pertaining to these unidentified moral values. Instead, Natural Law account for its inadequacies by broadening its perception of the law.

Are we ever going to understand our laws?

Growing up we were all taught about different moral values from our parents. It wasn't until we got older that we knew written laws actually existed. The question is did our laws come from moral values that existed in society? Everyone in society has different moral values so it is hard for people to understand our laws. According to dictionary.com the definition of a law is the principles and regulations established in a community by some authority and applicable to its people. According to dictionary .com a moral is motivation based on ideas and rights and value is define as beliefs of a person or a social group in which they have an emotional investment. According to positivists there is no connection between morals, values and laws and natural theorists believe that there is a connection between moral values and laws. I personally believe that laws came from moral values because that laws we have today is morals we were taught when we where younger and it has been past down from generation to generation. Society has change but laws haven't really adjusted because morals are something people don't really loose. Our laws are never going to be understood universally because we all have different moral values as a society and we only follow laws because we don't want to get in trouble. The only way our laws would be understood if we take away the moral background of it and adjust it to society ways.

Positivism, Natural Law, Why?

I don't believe that Natural Law and Positivism are the same thing. Positivists hold that there is no inherent or necessary connection between the conditions of law and ethics or morality. Laws are made either deliberately or unintentionally by human beings for the good. Although the distinction is difficult between the two, natural law on the other hand holds that there is somewhat of a connection between law and morality and/or ethics. Supporters believe that law is from nature and therefore is valid everywhere. Positivism is not as clear cut with the validity. Since natural law came first in line I believe positivism is basically refining the ideology of natural law. Natural law is an earlier approach that used morality solely to explain the essence of laws. When natural law was born, morality and religion were used for the basis of everything. Positivists agree with natural law on most of its aspects but dispute the fact that there is a connection between morality and law so it is definitely refining the older theory.

However, I have a different idea on why we follow laws regardless of what positivism or natural law or any of the theories state. I believe we follow laws solely because we are afraid of the consequences. If the consequences are severe enough, we will follow the law. There are exceptions, such as people who commit crimes for the thrill or for a status but that is whole other discussion. If I had to, I would agree mostly with the Command Theory rather than the Role of Recognition. I don't believe we commit crimes because doing so is rewarding. If that is the case, the reward is to be free of fines, records, or sentences.

Why do we follow the laws???

The idea proposed by Hart about how and why people follow the positive laws created by some legitimate sovereign, the Rule of Recognition, fails in my opinion, as does the Command Theory, to explain why people follow all laws. Instead of arguing against the Command Theory or the Rule of Recognition, I believe that positivists should be combining the two theories into one. It is very hard to explain why one would follow laws such as zoning ordinances based on the Command Theory, as the penalties are very minor, while the rewards are much more important. Conversely it is hard for me to see how or why people would follow a speed limit law because of the rights they are afforded by following that law, and not solely based on the fear of the sanction. While I can concede that we are allowed to drive and have a license because we follow the law, anyone you ask will say they follow the law because they are worried about getting a ticket. So again, I believe that it should not be an argument between the two theories of why people follow the laws, but instead they should be combined into one umbrella theory that allows for both the Command Theory and the Rule of Recognition to work together to explain individuals reasons for following the laws of society.

Law and Morality...?

It is pretty obvious to me how one can distinguish between law and morality. Law to me is something that is to be followed, an action or a prohibition of an action to make it clear as to how the written law expects us to react. When we look at laws especially through the positivists, we see that what actually occurs is that we are aware of the laws and they prescribe what we should be doing within the law. It is hard to believe that we can bring anything in morality into this issue when we are specifically focusing on the law. Morality on the other hand is what others expect you to do. While this sounds somewhat oversimplified, it is more complex on second look. When one is expected to do something as a member of society, others express their moral expectations on these individuals. There is no law that is expressing the norms of the individuals that are being displayed. This leads us to conclude that positivists and natural law believers are not up to the same ideas. Natural law theorists propose that law is transcribed from this higher being that in turn implies morality. On the other hand, it is true that the positivist is one who looks at what the law is and simply realizes that it is written down as law so it must be law. The reason to follow the law is that it is law and is written down. Its obvious that this thought process does not try to pull morality into the issue and simply attempts to view law as something that must be followed.

Positivism, Natural Law and Morality

Legal positivism helps solidify the distinction between law and morality by stating that there is no inherent or necessary connection between the validity conditions of law and morality. It further states that rules are made, whether deliberately or unintentionally, by human beings. In that case all human beings naturally also adhere to some code of morals or ethics, whether intentionally or not. In the view of positivism, the law is seen as being conceptually different but not separated from morals. The law is a purely human institution while morals can be linked to a higher power. Positivism and natural law are ultimately up to the same thing and positivism helps to improve the methods of natural law. This is particularly the case because it is difficult to relate ethics to natural law and positivism helps to reinforce that separation and distinguish the differences between the two. The main difference is that a law can be unjust without it being any less of a law in the eyes of positivists, while those adhering to the theory of natural law would argue that there is indeed something legally deficient about an unjust law. In natural law there is an inherent connection to morals, because this theory claims that just laws are imminent in nature and are not created. Since these just laws come naturally to man, they are obviously grounded in some sort of ethics and morals. For instance, a law concerning killing or stealing is bound to have some moral basis.

Technological Morality

How can one accurately create a law from morals when people do not all share the same morals? With the world constantly changing due to new technologies coming out every month, how can the government keep up on laws? It cannot simply come down to what is right and wrong to a set of people if people view a subject differently. For example, when the internet first started to become popular for home use, how did the government decide what could and could not be viewed? In China, as well as several other countries, some websites are blocked, and if people try to view certain pages, they can be fined or arrested. The Chinese government believes that this is moral. However, Americans can view nearly anything online, including political satire. So who is to say that their morals are wrong and American morals are right, or vice versa? This can be viewed from a few different angles: the Chinese government may be trying to protect people from harmful things online while the American government doesn't care for their people, or the American government can be preserving freedoms of their people while the Chinese government is oppressing them and limiting their free will. Americans are likely to choose the latter. Whatever the case may be, the key point is that there is a difference of what is considered to be morale. Therefore, I do not believe all laws can be derived solely from morals.

Weekly Topic: Positivism and Natural Law

Throughout his essay, "Positivism and the Separation of Law and Morals," H. L. A. Hart strains to show that theories of natural law undercut moral criticism of legal rules and institutions by conflating law and morality into one indistinguishable set of rules and norms. To avoid this confusion and preserve the value of moral criticisms of law, positivism distinguishes between legal norms and moral norms.

Yet, it might seem that Hart's formulation of the positivist distinction, especially since it is designed to legitimate criticism of the law on moral grounds, simply reiterates Aquinas's distinction between natural law and human law. After all, isn't it the link between natural law and human law that serves as the basis for moral criticism of the law?

In short, I would like to hear how you understand the distinction between law and morality, specifically as it applies to positivism, but also in what respect it alters, misunderstands or corrects aspects of natural law theory. Are positivism and natural law ultimately up to the same thing? If so, does positivism significantly refine or improve the methods of natural law? If positivism and natural law have different goals, what are their respective aims and why should we prefer one over the other?

Law and Religon

If law became influenced by religion in the sense that laws were changed and “reshaped” in order to satisfy or abide a specific religion; I believe that any society would become a chaotic mess. First of all, there are many religions to take into consideration, and if a society or government would especially pick one religion above all – this would cause many conflicts and possibly wars among the society. Correct me if I am wrong, but religion has been the primarily catalyst for some wars starting from the crusades to the current radical Abrahamic religious customs. Many individuals have killed other human beings over their beliefs on a specific religion, or to satisfy their particular religion. For example, the Nazi party decided to prosecute, incarcerate and later kill any individual of Jewish decent. They were solely prosecuted and killed due to their religious background. Killing a human being over a belief that cannot even be proven is simply absurd. My question is the following: Why would a society incorporate religion and law as one? Individuals have already a hard time abiding by the law – now add religion to the equation. It does not look too good, does it? I believe that laws should be like mathematics – universal. Universal in the sense that everyone in a society knows the difference between wrong and good for the most part – certain customs may differ. In short, I believe that religion should stay away as far as possible from the legal system at all cost. Individuals have fought over religion and beliefs for thousands of years; let’s not give them another motive to fight.

Law and Religion

The church and state were supposed to be kept separate from each other in today’s society. The idea that law is based on moral standards seems to be including religion into the process. When we look at some of the cornerstones of the United States we see the name God a lot, for example, in the pledge of allegiance and on our currency. The word God is not a universal term as the word law would be. Not everyone believes in the same religion, but the word law is a universal term. The one problem with including religion in the law making is which religion do we base our laws off of. There are so many religions and beliefs in the world today that it would not be fair to not include all of them. We need to throw out our morals and realize the main reason the law is in place is to protect the people. Morals are something that can be changed and they should not be used to decide what is right and wrong. Morals should not be the basis for which we form our laws. Laws should be made on the basis of protection for all rather than religion and what our religious morals are.

Everything is subjective

The entire reason that natural law exists is because of the ambiguity surrounding the concept of "good." Killing or stealing is not good, we all know that. But wait- says who? God? Government? We don't really know why some things are good, so we construct basic moral tenets in order to guarantee some semblance of equality and assurance to everyone. Why can't you kill or steal? Because it adversely affects other people. Natural law says that you can basically do anything you want as long as nobody gets hurt from you doing it. Law was devised to ensure equality for all, and human beings, born and bred with a conscience, instinctively know this. Before being told about natural law, most people have a basic understanding of it, even if they don't know that it's called natural law. Once we gave a name to the concept, it was more easily recognizable. It was based on being good, and then the question of "what is 'good?'" came up. That's why we invented God-- so we could have some absolution when it came to the question of good and evil. So there you have it: Human beings innately understand the concept of natural law, which raises the question of the definition of goodness, which is why God was created.

Good is good

We are not machines; we are humans. That means we have emotions and we have logical reasoning skills. Before anyone tells us, we should know that inflicting pain onto others is bad and helping out a friend is good.
I think most people can agree that the Ten Commandments includes moral rules. We can all agree that stealing and murdering is bad. Do we really need some divine being to tell us that? I don't think so. Can't people just do what they think is good, and not what a higher power would deem "good."
Sure, different individuals have unique moral codes. However, I think that any mentally stable, reasonable, and logical human should be able to determine right from wrong without citing a religious text. There is some gray area, but that's where law (written by humans; not God) comes into play. Wondering about whether some abstract higher power deems something "right" or "good" is just a waste of time.
I think what I'm saying is that something is good or bad whether or not a supposed God deems it as such. Reasonable people shouldn't need a God to declare something right. Therefore, something does not become good once God says it is.