Talk:Legal positivism

2005/01/07

I replaced the whole section entitled "What makes a law"" because it compared law with money on the premise that both money and law are creations of the sovereign state. This is false. Money, even coinage, existed before and outside of the state. The same with law. There has even been private coinage and many different commodities have been used for money including corn, shells, metal bars, nails, etc., which had nothing to do with the state. Legal tender, on the other hand, is a creation of the state, but it has no relation to law as the afore-mentioned section advocated. This section was erroneous and false, so again, I replaced it with something a little less preachy.

Bob Ruffin

The question of "what is law?" is central to legal positivism.

Man needs law in order to live harmoniously and prosperously in society. In fact, without law, civilization would collapse. The purpose of law is to prohibit any person or group of persons—including any government—from initiating force, threat of force, or fraud against any individual's person or property. The purpose of law is not to protect society, the state, the environment, or any other "higher good".

I am removing this seriously POV text from the article, and reverting to the discussion of money. The premise that both money and law are creations of a sovereign is indeed one of the assumptions of legal positivism; within the system it is more a postulate than a debating point. "Outstanding producers such as Socrates. . . . Leona Helmsley, and Michael Milken?" MEGO -- Smerdis of Tlön 17:51, 8 Jan 2005 (UTC)

I don't see how money in particular has any relevance to positivism; it has no place in the article. Mk270 11:30, 9 Jan 2005 (UTC)

The discussion of money is adapted from a section on legal positivism from a textbook The Philosophy of Law --- it's at the office, so I don't have an ISBN handy. (The textbook's example was postage stamps). I can get the cite for that on Monday. It's there chiefly as an example of the sorts of questions positivists ask about law. -- Smerdis of Tlön 17:26, 9 Jan 2005 (UTC)

I'd be very interested in the reference for that book. Personally I've never come across the use of money as a didactic device for explaining law. At any rate, we should say what legal positivism is, not give a sentence or two, a few paragraphs saying how positivists teach, and then multiple sections attacking the whole thing. Mk270 17:55, 9 Jan 2005 (UTC)

Okay, I see that you want to show how we can teach what law is, and it may be fair to use money as an example, but to say that "money is an aspect of the legal system, the creation of a sovereign state" is just plain false. Please tell me, how money is an aspect of the legal system? Also, tell me, how is money a creation of the the sovereign state? Money existed before the state. Widely accepted money has even been minted privately in the USA with no connection to the state. We are speaking about money, not legal tender which is not "money", but fiat. Money is merely a commodity chosen to represent a "tradeable value" so that we can make purchases of other commodities of "useful value". And money, being of tradeable value, substitutes as a store of nonperishable wealth.

To continue, the section asks "What things are properly called money? This calls for a historical or numismatic inquiry. Here, the question becomes one of discernment: you distinguish cash money from money-like things that don't count, such as cheques, debit cards, bus tokens, or coupons." So, basically this asks what IS money? First of all "money-like things" doesn't even make sense. Anything that the state legalizes as legal tender is just as "money-like" as any of the other examples stated above. A paper dollar is not money, it is legal tender - fiat in most cases as it is not backed by a commodity that has tradeable value. So the above questions are not good examples of how to ask "what things are properly called laws?" Another problem with this question is that "laws" are intangible concepts, ideas, beliefs, etc. Money, legal tender, and "money-like" things are tangible objects. I don't think one can use tangibles to explain intangibles. I may be wrong, but I'm sure you can give me an example.

"What is properly given effect as money? Here, criteria of validity are sought. Under this inquiry, you may cheerfully accept debit cards, cheques, and coupons; but foreign banknotes do not count, nor do counterfeit bills, things that may well meet the first definition." Now here you have the same question as before, but just worded differently. You are still asking what is money? But the question is now what IS NOT money? Negative logic to me. Oh, and now we are saying that foreign banknotes are not money? Not true. And then you add counterfeit bills? Why? They never were money! Why don't you add "the air we breathe"? That's not money either and never was considered money. Using counterfeit bills is a rediculous association.

"What is money for? Here, you must discuss the place of money in an economy, how it functions as a means of exchange, and the kinds of transactions that are conducted with money versus other and similar media." So, now we ask why have money? What is its' use? Well, we can ask "why have law?" without this comparison to money. I mean, what is the point of saying that we can understand the question of "why have law?" by teaching how we get an answer to the question of "why have money?" That's like saying we can only understand the function of law if we understand the function of money, or anything else.

Look, all I am trying to say is, is that we shouldn't be using money as an example of how to ask three simple questions which are:

1. What is law?

2. What is not law?

3. What is the purpose of law?

I say, replace the word "money" with the word "law" throughout this whole section and come up with some better examples. How about the following?

The question of "what is law?" is central to legal positivism. There are several possible approaches:

1. What is law? This calls for a historical inquiry. Here, the question becomes one of discernment: you distinguish laws from law-like things that don't count, such as rules.

2. What is not law? Here, criteria of validity are sought. Under this inquiry, you may cheerfully accept rules and things that may well meet the first definition, but are not statutes.

3. What is the purpose of law? Here, you must discuss the place of law in a society and how it functions.

I will go ahead and post this, but I am sure you will revert again. But I hope you answer my questions here too.

Oi! Smerdis and I were discussing this, and you have prejudged the outcome of that discussion. Admittedly you have done so in my favour, though on grounds I can't agree with. Would you mind waiting until people have had their say before barging in? Mk270 10:31, 10 Jan 2005 (UTC)

You may have been discussing this, but I was the one who started the initial commotion about this section. So, I can't believe that you think I was barging in. And as far as anyone agreeing on any of this, it is quite hard when legal positivism has so many "dialects" such as inclusive vs. exclusive, hard vs. soft, Utilitarian vs. non-Utilitarian, etc. But the main thing that we all can agree on is the basic definitions (1) that laws are rules made by human beings and (2) that there is no inherent or necessary connection between law and morality. Bob R.

Ok, and maybe I could have phrased that better. What it says is that there's a discussion, and that you are changing the page before the discussion is over. It then accuses you of barging in, which is certainly false in the sense that actually you were also involved, so apologies there. But please, the rest of what I said doesn't somehow lose its force simply because it is followed by a misconception on my part: I'm discussing this with the other chap, and you are effectively just behaving as though I'd already won the argument, which is hardly fair. Mk270 11:39, 11 Jan 2005 (UTC)

I do wish also that you would forbear from removing comments from the talk page, even if they are text you had added that was removed to talk for discussion. This is what talk pages are for.

I am sorry for that, but I removed some of my post because it was not appropriate. I had made some errors. Bob R.

At any rate, I think there are some misconceptions about legal positivism here. "Law" is not coextensive with "statutes", nor does "sovereignty" in the legal positivist sense necessarily imply the full apparatus of a "sovereign state" in the geopolitical sense.

On the other hand, "money" does require something like a "sovereign state," or at least a legal and political system in which creditors can be required to accept money as opposed to barter; private bank notes are nothing more than IOUs with fancy engraving, unless law makes them legal tender. This is not, however, the point of the comparison with "money." I changed it to "money" from "postage stamps", the example given in the textbook I took that example from (Philosophy of Law, Feinberg and Gross, eds., Wadsworth, 1975 ISBN 0-8221-0150-5) mostly for copyright reasons, but also because it plugs into a history of discussion in economics about what counts as money. If using money as an example is a red flag to Sovereign Citizens and gold-bugs, perhaps postage stamp is the superior analogy. -- Smerdis of Tlön 15:23, 10 Jan 2005 (UTC)

No, money does not require a sovereign. Money is a tradeable commodity, not necessarily gold either. I am not a gold bug. Now, legal tender is an instrument of a sovereign state, as "legal tender" is the forced use of a commodity substitute as "money". Legal tender may or may not be an actual commodity though. Anyway, my point was that I thought that the section was suggesting that money is a creation of the sovereign state, which is patently false. I do like the current posting that you have edited. It is very satisfactory. Bob R.

From the book's discussion:

Suppose the question were, "What is a postage stamp?" One interpretation would call for a statement of what counts as a postage stamp, or, putting it another way, what deserves to be called a postage stamp. The answer would distingish postage stamps from, and relate them to, revenue stamps, Christmas seals, postage meter imprints. . . . A second way of viewing the question is as a request for information about what is properly given effect as a postage stamp. What counts as a postage stamp is not at issue, but it is recognized that a seriously torn stamp will not be treated as valid for postage, nor will a counterfeit stamp. . . or a foreign stamp, and so criteria of validity are sought. Finally, a third way of interpreting the question stresses the nature of postage, requiring an explanation of the postal system of which stamps are a part and a description of the role of stamps in it.

This is what I was attempting to get at. The analogy with postage stamps was suggested by H. L. A. Hart, FWIW. -- Smerdis of Tlön 15:23, 10 Jan 2005 (UTC)

I don't understand this desire to use money or postage stamps or anything else to explain why "legal positivists" ask these questions about "what law is or is not". These comparisons are confusingly poor examples. Why can't we just say that we ask these questions and be done with it? BTW, you did a great job on fixing this section. You didn't use any extraneous examples or comparisons and made your point quite succinctly. Thank you! Bob R.

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There's a problem. John Austin can refer to:

A philosopher of language; see J. L. Austin An 18th century legal and political theorist who wrote 'An Essay on Sovereignity', considered the standard for discussions about sovereignity A warrant officer in the United States Navy; see John Arnold Austin A British politician; see John Austin (politician) A 19th century Texan who helped lead the Battle of Velasco

this page links to the first person while a correct link would be to a page on the second (which as far as I can tell doesn't exist yet)

I don't know how to fix this hopefully now that it has been brought to attention some wiki pro can fix it up.

ps here's a link to COPRYWRITTEN material on the real John Austin (please stand up). Not intended for copy but to facillitate clarifaction of any potentially created page on th 17th century Austin. http://plato.stanford.edu/entries/austin-john/.

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This page seems more devoted to critiques of legal positivism rather than the substance of the subject matter itself or superseded versions of it (such as the views of Austin and Bentham).

It also manages not to mention H. L. A. Hart(!) Mk270 18:36, 4 Oct 2003 (UTC)

Egads. That must be fixed. We need a major discussion of H.L.A. Hart & then perhaps Raz, inclusive and exclusive legal positivism. User:Lsolum

Wikipedia:Be bold in updating pages! I'll chip in after refreshing my memory on the subject. --snoyes 03:26, 10 Oct 2003 (UTC)

How 'bout a citation for the "recent study published in the Harvard Law Review?..." userX 17:26, 12 June 2006 (UTC)

Problem

THe sentence which states there is no connection between "law ethics, hence marality" makes no sense. Indeed it is not a complete thought. I had hoped to figure out how to correct it but the idea itself is obscured by the poor language; I do not know what is being expressed. I have a few suggestions: there is connection between law and ethics. But then what of this hence, morality part? What does it mean? That morality itself comes from the disconnect between law and ethics? Could someone please correct this!