Natural Law vs. Positivism

The philosophy of law is a complex and in depth study, which requires an intimate knowledge of the legal process in general as well as a philosophical mind.  For centuries, the scope and nature of law has been debated and argued from various view points, and intense intellectual discussion has arisen from the fundamental question of 'what is law'.  In response, several major schools of thought have been born, of which the natural law scholars and positivists are two of the most notable.  These two camps hold strictly contrasting views over the role and function of law in certain circumstances, and have provided in themselves platforms for criticism and debated which continue to be relevant today.

Although the classifications of natural law and positivism are frequently used, it is important to remember that they cover a very wide range of academic opinion.  Even within each camp, there are those veering towards more liberal or more conservative understandings, and there is also naturally a grey area.  Having said that, academics and philosophers can be enveloped by one of the categories on the basis of certain fundamental principles within their writings and opinions. 

Natural law has always been linked to ultra-human considerations, that is to say a spiritual or moral influence determinant of their understandings of the way law operates.  One of the founding principles is that an immoral law can be no law at all, on the basis that a government needs moral authority to be able to legislate.  For this reason, natural law theories have been used to justify anarchy and disorder at ground level.  This had lead to widespread criticism of the natural law principles, which have had to be refined and developed to fit with modern thinking.  On the flip side, natural law has been used as a definitive method of serving 'justice' to war criminals and former-dictators after their reign. 

Some of the strongest criticisms of natural law have come from the positivist camp.  Positivism holds at its center the belief that law is not affected by morality, but in essence is the source of moral considerations.  Because morality is a subjective concept, positivism suggests that the law is the source of morality, and that no extra-legal considerations should be taken in to account.  Positivism has been criticized for allowing extremism and unjust actions through law.  It has also been suggested that positivism in its strictest sense is flawed because it ignores the depth and breadth of language in legal enactment, which means the positive law can be read in different lights based on differing meanings of the same word. Despite this, positivism has been seen as one of the fundamental legal theories in the development of modern legal philosophy over the last few decades, and is winning widespread favor through a contemporary academic revival.

Natural law and positivism have been the subject of an ongoing academic debate into the nature of law and its role within society.  Both respective legal schools have criticized and built on one and others theories and principles to create a more sophisticated philosophical understanding of the legal construct. Although the debate is set to continue with a new generation of promising legal theorists, both natural law and positivism have gained widespread respect for their consistency and close analyses of the structure of law.

Online Campaigns

Where in the world can a person check their mail, pay bills, check bank balances, book a vacation, and show support for their favorite political candidate all in the same place?  Simple - online of course.  Candidates and politicians are looking to cash in on the most impact for their time and what better way to become a part of that powerful trend than welcoming cyber space into their lives?  Who knew that a craze that started a few short years ago with social websites such as MySpace.com would turn into a tool to be used so heavily in campaigns?

Barack Obama has enjoyed adding 100,000 friends to his MySpace page, and other campaigns are even adding other MySpace pages as well as joining into the Second Life craze that has struck recently, with many people looking to expand the internet as one of their major sources of advertisement.  Each candidate has their own website of course, with a great amount of information on their individual views, their position on the issues, and what they wish to see happen in the country.  Never before has the democratic process reached so close to home, now pulling in a new generation of voters to guide the future of the country.

Is this a good idea?  Should candidates really be losing that personal and physical touch?  However, this is actually one of the most prevalent ways to get information out recently, with websites popping up everywhere where political opinions can be viewed, and with sites such as digg.com becoming popular it enables sites with good content that is full of information people find fascinating or helpful to rise to the top, and help spread the word to the masses. 

Seems almost like a grass roots type campaign.  Yet it does not involve any physical interaction from the candidates.  This is the ultimate tool that can be used to spread the word quickly about progress and updates in their campaign without ever leaving their house or office and interacting with those they so desperately need votes from. This seems to be a bit of a strange position to be taking, but with the internet reaching so wide and far, it is a tool that many politicians are utilizing, and to great practical effect.

Many are even recruiting volunteers to manage their spaces in Second Life as well as MySpace so that their time is better spent and their ability to reach even more people is extended further.  Seems almost strange that volunteers are now able to help on campaigns that they never would have been able to work on before, but thanks to the internet, they are able to show support for their favorite candidate in a way never before seen. 

How much further can this really go, with the possibility of the internet growing into an even larger portion of the campaign, it is very much possible to keep track of all the happenings and events in almost every political campaign and race without ever leaving the comfort of your home.  Whether this engages the ordinary citizen on a more direct level will remain to be seen, and the outcome this will have on the voter demographic at the next election will surely be profound. Now if only the election voting could be handled online, securely it would truly be a virtual world.

Sex Offender Laws

With the high rise in the number of sex offenders who are also repeated offenders the federal government decided to impose laws requiring all convicted sexual offenders to register with the states in which they live.  Although this measure is controversial, government officials are claiming that it is an increasingly effective method of avoiding re-offending in some of the most serious criminals.  Is this an invasion of privacy that the states and politicians have imposed upon someone who has served their sentence, or is this a legitimate measure of control for some of society's most dangerous offenders?

At some point in time, it became acceptable for the government to track former criminals; in requiring them to register as an offender, they are essentially tracking the criminal.  They do nothing more than monitor closely their whereabouts, actions, friends, lifestyle, etc.  How this came to be is quite scary, while it has occurred for a crime that fits the punishment, after all our children should be protected.  It also comes with a price.  Many people see this as an intense invasion of privacy and human rights, and in Europe under the banner of the European Convention on Human Rights, such procedures would almost certainly not be allowed.

Since beginning this and requiring that all sexual offenders register with their respective states, it opens the door for criminals of other crimes to be required to register.  Once that occurs, it allows the governments to start requiring slowly that everyone be registered for one reason or another.  Is this something that the people are willing to let happen?  Should the government have full knowledge and control over where you go, who your friends are and where you work? 

Many feel that the laws for the sexual offenders are not stiff enough; they call for stricter punishments and heavier penalties for these most despicable of criminals.  This comes from the side of people that wish to seek nothing more than revenge.  At the same time, if someone commits a crime whom is sent for mental help, instead of jail they are not required to register.  Their offenses are recorded differently, and their punishment is much easier.

This can cause serious problems in terms of people not being registered that really should be registered as an offender.  The main goal of the program is to protect the interest of the children; after all, they are the main resource worth protecting in society.  Nevertheless, how far is too far?  Some have suggested implanting the offenders with a microchip that would enable law enforcement agencies to track the offenders’ movements continuously.  Is this something that the American public is willing to accept? 

With this being talked about, what are the chances of this occurring for other crimes as well?  What is the point of releasing someone from the judicial system if they are so dangerous that they must be continuously tracked?  As a woman, or a child how safe do you feel knowing that there are people surrounding you whom have been convicted of serious crimes against others?  What about as a man, does this change your opinion?  The requirement for registration causes social problems and victimization for those offenders, arguably justifiably, who have shown themselves to be dangerous.  This has the knock on effect of altering the course of justice, given that these people will have served the appropriate sentence for their crime, and hopefully have progressed through the systems of rehabilitation in place.

How do you think it should be handled?  There are some people who truly believe that the registrations processes should be removed, that once their time is served the offenders should be allowed to disappear back into the woodwork and free to live their lives without being under the public scrutiny.  These are the people who are looking to have yet another law changed, that could have some very devastating effects on society, particularly for our children in the coming generations.

Positivist Legal Theory

The question of the character of law is primarily a simple one, although it presents a diversity of argumentation to make it an academic favourite and a thought-provoking topic of debate. Positivism is the term describing the school of legal thought that follows that law is an authoritative, binding, regulatory construct.  It holds at its core the idea that law is enacted as an authoritative statement of how society must behave.  It rejects the concept of any connection with morality, and suggests that there is no room for subjective consideration of the law – the law is, with no room for negotiation.  Positivism has been criticised, particularly in Germany, as a means of affording tyranny and extremism to enter mainstream politics.  It is said that the general concept of accepting and enforcing the law by virtue of its status allows unjust laws enforcing prejudice and discrimination respect by virtue of their enactment, placing an indefeasible trust in the legislature. As compared to other legal theories, positivism has gathered a great deal of respect and support across the world, making it one of the most prominent considerations of the nature of law.

Positivism places strength on the rules as they are laid down, on the premise that the process of the legislature is the time for challenge and interpretation.  Although this may generally be the case, it does throw up some problems in relation to the practical consequences of certain enactments, which reflect better with experience the level of effectiveness.  Another feature of the positivist movement is that rather than be guided by moral considerations, the law can be used in certain circumstances to determine what is right and what is wrong, on the basis of its status as in accordance with or against the law.  Again this causes problems that have formed the basis of much academic argumentation in the area.

One of the main criticisms of positivism as a theory came in light of the linguistic considerations of HLA Hart, a leading international legal philosopher.  He stated that the positive law is far from fixed in nature, for the simple reason that language is not fixed.  For example, the famous scenario offered for this point is a sign in a local park stating 'no vehicles allowed'.  This is by no means a fixed and definitive statement of the law, because 'vehicles' can be taken to mean a broad range of things.  For the most part it will be fairly obvious what falls within the scope – no cars, vans, trucks or trains would be permitted.  But what about skateboards?  Bicycles? Are these covered within the definition of vehicles? There is no way of knowing from the text exactly what is intended by the law, so to positivism in this strict sense is flawed. Rather, a more sophisticated approach is required, which allows the law to be read in the light of pragmatic and policy considerations.  This makes positivism more palatable as a concept, and strengthens its validity at the heart of legal philosophy. 

Positivism is only one in a series of mainstream legal theories which satisfy the rational and logical requirements of academics and practitioners alike.  Its intellectual sophistication sets it apart from the more basic natural law theory, although it is by no means an utterly definitive set of beliefs.  All in all, this is an area of study that is rapidly developing, producing new and more complex arguments with every empirical text.

Straight Marriages – Gay Unions

The debate of gay marriages has been a very hot political topic for many years and with being such a hot topic it is almost astounding the number of places that have come out publicly either for or against the topic.  While there are few states who allow the idea of a gay or same-sex marriage there are those more liberal affording almost equal rights.  Massachusetts is the only state currently in the United States that allows same-sex marriages.  The state of Rhode Island is generous enough to recognize as legal marriage any same-sex marriage that is performed in Massachusetts, which is a major victory for many same-sex supporters.

The elections of recent years have seen this as a very hot topic button, and with the White House, stressing that marriage involves a man and a woman only, not same-sexes many states have been very reluctant to allow the same-sex marriages. However, a few states have come forward and allowed same-sex civil unions, which are very similar to a marriage.

These states are California, Hawaii, Maine, Connecticut, New Jersey, and Vermont.  The District of Columbia also recognizes same-sex unions and soon the Governor of New Hampshire has stated publicly that he will sign a bill giving the ok to same-sex unions.  This is a major victory for those who are supporting the movement. 

While many states have not given the green light on the same-sex issue, there are states who are sitting around discussing the issues.  Many couples who are fighting for their rights have argued that there is no difference in the way they run their households compared to their heterosexual counterparts.  They have also stated that while they may be with a partner who is the same sex as them, they do still love their partner and should have the right to get married. 

This has always been a hot topic, and likely will continue to be a hot topic for many years to come.  With the issues raging within the states and at the national level it will likely be a very long time before the gay and lesbian rights groups are able to truly declare a victory for their cause.  Nevertheless, there is some solace to be taken in the small victories as they occur, and another Governor of a state being willing to allow a civil union is at least a step in the direction towards a victory. 

The fact remains that often the views of the individual states tend to reflect the views of the President.  With a President in office who is a staunch opponent to the concept of same-sex marriage as well as civil unions it is unlikely to allow much room for many victories until a more accommodating, or rather liberal, President is in the White House. 

Once the bill passes all of the channels, it can go into effect as early as next year for the New Hampshire residence who have long been awaiting this victory.  With each state that gives this right to its residents, it opens the doors to more states to start becoming more tolerant of all their inhabitants.  Finally, this is paving the way for America to join the bulk of Europe in recognizing the legal inequalities between straight and gay couples nationwide.

Stem Cell Research- Good or Bad?

This is a very 'hot button' issue that keeps arising in the face of politicians everywhere in the country.  What if anything should the government involve itself in for the issues of stem cell research?  How far should the government press into the fields of medical science research?  Should the government interfere at all, or stand back and come up with laws to handle the consequences of such research?

It comes into question, how many ordinary Americans really know and understand what stem cell research is, how it can effect our lives, and what does it have the ability to do in the future?  With topics such as abortion being very hot and causing pressures on all sides, it only seems natural that stem cell research should cause just as much controversy.  Many supporters argue that the research gathered will be able to save millions of lives, while those opposing the research all argue that they are killing thousands of innocent children in the process. 

This brings the question, where do the embryos come from?  The majority of the embryos used in the research come from couples that have donated them, following a treatment for infertility; there are often 10 or more embryos left over after such procedures, which can be put to use in the laboratory environment.  The options for those embryos are limited; they can be preserved, adopted to a needy couple, destroyed, or donated to medical research. 

The embryos are only a few mere days past conception when they are frozen, and are unable to sustain life in any form on their own.  From a legal standpoint, they are not living humans, and are not an infant since legally an embryo becomes an infant once the first breath of air is taken.  This leaves the questions of who has the right to determine what can happen to them. 

The embryos are the building blocks of people, yet, they have no rights themselves.  Whom do they belong to?  Who is responsible for ensuring they are taken care of?  Many consider the embryos being used in research as the same category as murder.  Is it actually murder when the child is never born, and is only conceived in a test tube?  Who should really make the decision about how these embryos should be handled?

The embryos themselves are rich in stem cells, which scientists have said can help cure some of the worst diseases and conditions in the world.  This makes the concept very tempting, but is this dabbling in aspects of science that shouldn’t be used?  Should humans really be trying to recreate whole body parts and organs from the stem cells in order to help a few, but at the expense of a few other lives?

The current administration has tried to place a ban on this research and block the use of the embryos.  This has upset many supporters who feel this research is vital to the survival of the human race, while those who digress the ideas are upset that is has not been banned fully yet.  Where is the better side to stand?  Should we allow the government to meddle into the scientific aspects of medicine, or should we continue the research to save thousands, or millions of lives?

Succession Law: The Importance of Having a Will

Although we might not like to think of it, death is a certain fate for us all.  When we pass away, our families will go through a stressful and traumatic time as they come to terms with their loss.  At the same time, there is a requirement for the administration of our estate, and this is usually bestowed upon a close relative or friend during this already painful time.  However, a lack of foresight and planning can be catastrophic, leaving behind a tangle of assets and liabilities and possibly a hefty inheritance tax bill, depending on jurisdiction.  On top of that, the absence of a will can mean a distribution of assets on the basis of standard 'default' rules, rather than on the basis of your individual preferences.  In this article, we will look at some common provisions in the absence of any will, and aim to justify the benefits of making a comprehensive and clear will during your lifetime.

Most jurisdictions will bear some liability to tax on death.  This can be a specific problem for the administrators of estates, usually close friends, who must ensure every known asset and liability is accounted for before making legacies and signing off the tax bill.  A major problem comes with the personal liability attributed to the administrators, which means that should anything 'slip through the net' which is later discovered, there may be increased liability to tax.  In practical terms, this could mean a surprise bill for several thousand which has already been distributed in legacies and for which the administrator must personally account.  Providing for these outcomes in a will is one of the best ways of avoiding this hassle and stress, and it can also be the best way to ensure all assets and liabilities are uncovered.  By drafting an effective will, you can be sure your loved ones don't face financial hardship after you're gone. 

In the absence of a will providing specifically for the administration of a deceased's estate, it is up to the laws of intestacy to determine what happens to the entirety of our worldly possessions.  Unfortunately, this doesn't usually correspond with the way we'd like things to turn out.  For example, in a number of jurisdictions there are automatic provisions for spouses and kids, meaning you can disinherit, even with a will.  There is also usually a default order of preference of who gets what and how much they get, which doesn't necessarily match your favourite relatives, or correspond to actual family set ups.  In fact, cohabiters might run into problems getting anything, including the house in which they live without proper testamentary provisions in their favour.

As you can see there are a number of obvious benefits to drafting a will during your lifetime.  Sadly, many thousands of people die each year without making these provisions, and it really is a real headache for their friends and relatives who are left with the burden of a fair settlement.  Intestacy causes hostility and stress, which can be readily avoided by just simply making a written will.  If you haven't made a will, it is probably a good idea to make a appointment as soon as is convenient with a legal adviser to do so, to ensure your family are provided for as you would intend and to promote a favourable distribution of your estate on death.